QUICKSHEETS – TORTS

INTENTIONAL TORTS
1) Elements of intentional torts
a) Voluntary act – Something conscious/willed as opposed to purely reflexive
b) Intent – D either:
i) Desires act to cause harmful result, or
ii) Knows with substantially certainty that it will come about
c) Causation – D’s act or a force set in motion by D must cause P’s injury
d) Harm
e) No applicable privilege or defense

2) Transferred intent: If D acts with necessary intent to inflict certain intentional torts, but causes injury to
different V, then D’s intent is transferred to actual V
a) Only applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels

3) Battery
a) Rule: D causes harmful or offensive contact w/P’s person or something closely connected to P
i) Intent D must either:
(1) Desire to cause an immediate harmful or offensive contact; or
(2) Know that such contact is substantially certain to occur
ii) Harmful or offensive contact
(1) Inflict pain or impairment of any body function
(2) Offensive to reasonable person
(3) P need not be aware of the contact (unlike assault)
iii) To the person or something physically closely connected thereto
b) P does not have to prove injury, will get compensatory damages just by showing the elements
c) Privileges and defenses – Consent

4) Assault
a) Rule: D intentionally causes P to be in reasonable apprehension of an immediate harmful or offensive contact
i) Intent D must:
(1) Act with the desire to cause an immediate harmful or offensive contact or the apprehension
of such contact, or
(2) Know that such a result is substantially certain to result
ii) Reasonable apprehension – RP standard
(1) If reasonable, doesn’t matter whether D could actually carry out the threat. If gun is
unloaded, can still be assault
iii) Imminent battery – Must be able to occur almost instantly

5) False imprisonment
a) Rule: D intentionally causes P to be confined in a bounded area against P’s will and P knows of the
confinement or is injured thereby
i) Intent
(1) D desires to confine or restrain P in a bounded area, or
(2) Knows that such confinement is virtually certain to result
ii) Confinement in bounded area
(1) Physical barriers, threats of force, failing to release P after duty to release arises, invalid
assertion of legal authority

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(2) No duration requirement

(3) If P knows (actual knowledge) of reasonable means of escape, then no confinement and no
liability.
(a) Reasonable = no threat of harm to P or property, can’t expose P to risk of
embarrassment
iii) Against P’s will – Consent is a defense
iv) P is aware of confinement OR injured thereby (harm/dmgs)

6) Intentional Infliction of Emotional Distress (IIED)

a) Rule: D engages in intentional or reckless act amounting to extreme and outrageous conduct that
causes P severe emotional distress
i) Intentional or Recklessness
(1) Intentional = D acts with desire to cause severe emotional distress or knows that such
severe emotional distress is virtually certain to occur
(2) Recklessness = D acts in conscious disregard of a high degree of probability that
emotional distress will follow
ii) Extreme and outrageous conduct
(1) Conduct exceeds all bounds tolerated by civilized society
(2) Offensive or insulting language generally. not enough, except when:
(a) D is a common carrier/innkeeper;
(b) D knows of P’s particular sensitivity;
(c) Authority figure using racial/ethnic slurs against underling
iii) Severe emotional distress
(1) P does not have to prove physical injury, but distress must be severe – greater than
reasonable person would expect to endure
(2) Must be substantial/long lasting as opposed to trivial/transitory

7) Trespass to land
a) Rule: Intentional act that causes invasion of P’s land, interfering with P’s possessory interest in the land
i) Intent
(1) D desired to enter the land/caused something to enter, or
(2) D knew that land entry was substantially certain to result
(a) Mistake is not a defense
ii) Entry
(1) D enters or causes someone/something to enter (bullet hypo)
(2) D enters the land lawfully but then refuses to leave when required
(3) D fails to remove/eject from P’s land when under legal duty to do so
iii) P’s land = anyone in possession can bring claim (Landowner, tenant, adverse possessor)

8) Trespass to chattels
a) Rule: D interferes with P’s chattel, causing damages
i) Intent
(1) D intentionally performs the physical act that interferes
(2) Liable even though D did not intend to trespass w/good faith
(3) Mistake is not a defense
ii) Interference = Uses or borrows w/out authorization
iii) Plaintiff’s chattel = P’s personal property
iv) Actual Damages – Unlike trespass to land, need damages, not necessarily to the chattel but
actual damages required by loss of use in case of dispossession
b) Remedies
i) Damages – Cost of repair, fair market rental value, punitive if bad actor
ii) Replevin – Get back personal property of which one has been wrongfully dispossessed

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9) Conversion
a) Rule: Intentional act by D that causes the destruction of or serious and substantial interference with
P’s chattel
i) Intent
(1) Mistake no defense – liable even if acting in good faith and no intent
ii) Dominion and control (BFP)
iii) Destruction or Serious and substantial interference = the exercise by D of dominion and
control over the chattel
(1) Interference with P’s property interest is more significant than trespass to chattel. Longer
period of interference and greater use by D leads to conversion
b) Remedies
i) Forced sale (common) – Market value at time converted + punitive if bad
ii) Replevin – Brought by P to get personal property back

10) Defenses and privileges to intentional torts - POPCANS

a) Privilege
b) Others (defense of others)
c) Property
i) Can us reasonable force to defend real or personal property
ii) May never use deadly force to protect personal or real property
(1) Look for situations that start from defense of property and escalate to become defense of
self / others
iii) May use reasonable force to eject a trespasser after asking him to leave
iv) Recapture of chattels – Reasonable, non-deadly force okay to get back own personal property if
request first or request would be futile and P is in hot pursuit
d) Consent – usually a defense for battery and assault
i) Express – Affirmative communication through words
(1) Limit – Reasonability; can’t exceed scope of consent
ii) Implied – RP interprets P’s conduct as evidencing permission to act (playing sports)
iii) Mistake can negate consent when it goes to the consequences or nature of the act
e) Authority
i) Arrest
(1) Cop can arrest if reasonably believes D committed a felony
(2) Cop can arrest for misdemeanor if D’s action constituted a breach of the peace
(3) Private person acts at own peril – if wrong, liable for tort
ii) Shopkeeper’s privilege
(1) Not liable for false imprisonment if had a reasonable suspicion that P stole
(2) Can detain for reasonable period in reasonable manner on the premises/immediate vicinity
iii) Discipline – Parent/teacher may use reasonable force to discipline child
f) Necessity
i) D permitted to injure P’s property if it is reasonably necessary to avoid a substantially greater
harm
ii) Public – D is acting to protect the public at-large from severe harm
iii) Private – D commits intentional tort to protect self, better tort was committed than risk the conse-
quence. If RP would believe action taken was necessary to avoid the requisite harm, D is privi-
leged even if made an honest mistake in that regard
(1) D liable for harm caused during exercise
g) Self-defense
i) Rule: D honestly and reasonably believes that she used reasonable force to prevent P from
engaging in an imminent and unprivileged attack
(1) D only needs to be reasonable and respond with proportionate force
(2) Deadly force cannot be used against non-deadly threat

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NEGLIGENCE
1) Duty = Does the law impose obligation from D to P?
a) Rule: D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against
unreasonable risk of injury to others
b) Foreseeable P = D owes this duty only to those persons inside the geographic zone of danger at the
time of D’s negligence
i) Rescuers owed an independent duty
ii) Nonprofessional rescuers are foreseeable P’s as a matter of policy and can recover against negli-
gent party creating need
c) Nonfeasance – Failure to intervene/confer benefit on the P
i) No duty to rescue or aid, except when:
(1) D’s tortious conduct creates need to rescue;
(2) Undertaking to act – Don’t have to intervene but if you do, must act reasonably;
(3) Special relationship of dependence or mutual dependence (carrier/pass, inkeeper/guest,
captain/passengers, drinking buddies)
ii) Duty to control 3rd parties
(1) No duty to control conduct of 3rd party as to prevent harm to another. Exceptions when
a special relationship between D and 3rd party that gives 3rd party right of protection or
imposes a duty on D to control the 3rd party’s conduct
(2) Providers of alcohol
(a) Trad: Purveyor not responsible for DUI injuries
(b) Dram shop acts: impose liability on establishments who they know or should know to
be drunk when that person drives and harms a 3rd party
(3) Negligent entrustment
(a) Give something dangerous to someone D knows or should know is not competent to
handle it (i.e. Father gives gun to infant who shoots P)
iii) Duty to protect
(1) Generally, there is no duty to protect another person from 3rd party criminal conduct
(nonfeasance) unless:
(a) Special relationship – Landlord/Tenant, Business/Invitee
(b) Most juris only find duty where special relationships and prior similar incidents, so
particularly foreseeable
iv) D is governmental entity – If duty owed depends on function
(1) Proprietary function (acting in private area) à Treated as any other D for duty analysis
(2) Discretionary activity (using judgment and allocating resources i.e. setting policy) à Courts
will not find a duty
(3) Ministerial function à Duty once gov has undertaken to act (Ex: stop sign installed incor-
rectly leading to accident)
(4) Public Duty Doctrine: Courts find no duty when cops/fire fail to provide an adequate
response, except when:
(a) Special relationship;
(b) Agency has increased the danger
d) If P’s injury is not personal injury or property damages, duty issues arise
i) Negligent infliction of emotional distress NIED (courts reluctant)
(1) D engages in neg conduct and as a result, P suffers emotional distress + some sort of
physical manifestation
(a) Most jurisdictions require zone of danger – At risk of physical harm
(b) Have suffered physical manifestation proving genuineness
(c) Exceptions to these req’s
(i) D negligently transmits death of a loved one

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(ii) D negligently mishandles a corpse

(2) Bystander actions = Physical harm occurs to a close relative and P suffers emotional
distress as a result of injury to the close relative
(a) Was located near scene of incident
(b) Suffered severe emotional distress
(c) Had close relationship with victim (immediate family member)
ii) Wrongful conception, birth, and life
e) D is a land owner (LO), Landlord (LL), utility, or gov entity
i) P’s on the land
(1) Invitees = Enters onto D’s land at D’s express or implied invite and for a purpose relating
to D’s interest or activities à D has duty to exercise reasonable care to prevent injuries
caused by activities conducted on his land
(2) Licensees = Enters D’s land with D’s express or implied permission and who’s not there for
a purpose benefiting D or D’s activities nor is land held open to public (i.e. social guest) à
Must warn of known concealed dangers (just warn, not cure)
(3) Trespassers = Enters without express or implied consent of land possessor à Duty to
avoid infliction of willful or wanton harm
ii) Other duties owed by land possessors
(1) D is engaged in an activity on the land à Duty of reasonable care owed to all except trespassers
(2) ONLY for an invitee does LO have a duty to reasonably search out dangers on property
(3) If known or frequent trespassers (must be obvious like well-worn path) à Duty to warn of
concealed dangerous artificial conditions
iii) Child trespassers (attractive nuisance doctrine) – 5 factor test, If conditions apply, even
though child, treated as invitee
(1) Too young to appreciate the danger
(2) D knows or has reason to know of trespass
(3) D knows of the dangerous condition
(4) Artificial condition
(5) Does the risk outweigh the utility and burden to fix it?
iv) P’s not on the land but adjacent to it
(1) Artificial condition on land à duty of reasonably care
(2) Natural condition from land à no duty except trees in urban areas
v) Landlord / Tenant
(1) LL’s not liable unless:
(a) Common areas over which LL retains control
(b) Negligent repairs
(c) At time of lease, LL knows of a concealed dangerous condition
(d) LL knows that T is going to hold property open to public

2) Standard of care = What is the measure of duty owed?

a) Reasonable Prudent Person (RPP) under same or similar circumstances
i) Objective standard of care – D’s conduct measured against expectation of conduct within commu-
nity à rise to level of average person in community
(1) Don’t consider mental ability, speed of reflexes; don’t even consider insanity
(2) We DO take into account
(a) Physical conditions (blind, deaf, amputee) à D held to the standard of a RPP with that
condition (ex: RP blind person)
(b) Emergencies not of D’s own making considered by jury—Rushing to hospital because
child is dying. Jury can consider to see if D acted reasonably when rushing to see kid
ii) Breach = Failure to act as a RPP – Factors to analysis breach:
(1) What is the probability of harm occurring from D’s conduct?

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(2) What is the likely magnitude of the harm going to be?

(3) What is the burden on D to avoid the harm?
b) Children
i) Maj Rule: Minor D’s conduct is assessed according to what a reasonable child of the same age,
experience, and intelligence of D would have done
(1) Exception: Children engaging in adult inherently dangerous activity are held to adult stan-
dard of care (ex: driving)
c) Statutory Neg: Statutes that provide civil liability supersedes common law of torts (ex: state law says
anyone injured in a car accident and not wearing seatbelt cannot recover in tort, P cannot recover in
neg action if not wearing belt)
d) Neg per se: D’s conduct also violates a statute that does not provide for civil liability (criminal statute),
that statute can establish standard of conduct for breach of duty purposes (ex: Crim traffic law)
i) Applicable if:
(1) P is member of a class the law is designed to protect +
(2) Injury caused by D’s conduct is the type of statute sought to protect
ii) If statute applies à (majority rule) unexcused violation of the law establishes D breached duty to
P. P still needs to prove proximate cause, damages ect.
(1) Exception: Excused statutory violation like an emergency not of D’s own making or when
it’s more dangerous to comply w/the law
(2) Exception: Licensing statutes – No license does not create liability
(a) Expired driver’s license is not neg per se
iii) When statute does not apply à statute will not set standard of care, Case proceeds under RPP,
not under neg per se
e) Professionals à Custom establishes standard of care for professionals
i) Med-mal: Docs required to possess and use the knowledge, skill, training of other docs in good
standing in relevant geo community
(1) Specialists = National standard
(2) General practitioners = Locality standard
ii) Lawyers, architects, accountants: so long as professional complies with custom, cannot be found
to have breached duty, deviation from custom means breach of that duty
iii) Lack of informed consent
(1) Trad: Doc liable for battery if no informed consent about risks, consent negated because
of lack of disclosure à still the case when gross deviation from consent (ex: P agrees to
tonsillectomy, but leg is amputated instead)
(2) Trad: Docs must divulge risks that are customarily divulged
(3) New Trend – Standard of materiality: Must divulge all material risks, risks that a reason-
able patient would want to know in deciding whether to undergo procedure. Failure to divulge
material risk is malpractice IF P can show would have refused procedure if risk was divulged

3) Breach of duty = Failure to meet standard of care

a) Direct Evidence – (rare) Eye witness or video tape of accident while occurring
b) Circumstantial – Evidence from which one can draw reasonable inference
i) Slip-and-fall cases à P must show that D was neg for not discovering and repairing the
dangerous condition—dangerous condition was there long enough and D should have noticed it
(Ex: Slipped on rotten banana peel)
ii) Res ipsa loquitur à Allows jury to infer D’s breach based on nature of accident and D’s relation-
ship to it
(1) Only used to show breach
(2) P needs to show:
(a) This sort of thing doesn’t occur absent negligence;
(b) D is probably responsible party because adequate control;
(c) P did not contribute to injury

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4) Cause-in-fact (actual cause) = Connects D’s breach to P’s injury

a) P shows that, more likely than not, but for D’s neg, P wouldn’t have been injured à other
reasons don’t matter. Preponderance matters as long as more than 50%, then D liable for full extent of
damages under “the but” for test
b) 4 big areas where this arises:
i) Multiple causes—Substantial factor test (instead of “but for” test) = 2 Ds cause harm, but each
D alone would have been sufficient to cause entire harm à each D is a cause-in-fact if D was a
substantial factor in causing the harm (Ex: Two arsonists’ fires burn down same mansion)
(1) Assume joint and several liability = can sue one or both Ds and collect entire amount from 1
D alone, D can seek contribution from other D
ii) Loss of chance (typically med mal situations) (not majority)
(1) P must show that but for the med mal, would not have lost chance / died (if Doc found the
cancer, P would have had a 40% chance of survival, P would lose, 60% chance would have
died)
(2) Many jurs. now recharacterize injury to loss of chance and damages are reduced but not
extinguished
iii) Alternative liability theory (Summer v. Tice – hunters shoot bush, its P)
(1) Factors when to apply:
(a) All Ds are tortious/negligent;
(b) All Ds are being sued together. Can’t use if 1 is left out;
(c) Small number of Ds
(2) Burden shifts to Ds to show that they were not the cause. If D cannot do so, they will be
jointly/severably liable
iv) Market share liability
(1) Generic product, P cannot show which of a large group of neg D’s was responsible. P can
sue those who might have caused her harm and each D is responsible based on its share
of the market
(2) Several liability – X had 10% of relative market, will pay 10% of P’s dmgs unless it can
show it could not have made product that harmed

5) Proximate (legal) cause = Policy reasons to cut off liability

a) Unforeseeable extent of harm: Doesn’t matter that P suffered more harm than 1 would foresee à D
responsible for full extent as long as type is foreseeable
i) Eggshell skull rule: Take you victim as you find them. Bad luck, he has brittle bone disease. Pay up.
b) Unforeseeable type of harm: Was injury suffered within the risk created by D’s negligent conduct?
i) Ex: Rat poison on the spice rack. Poison is foreseeable. Its explosion is not.
c) Unforeseeable manner of harm
i) Superseding cause – Unforeseeable, intervening cause that breaks the chain of causation
between the initial wrongful act and the ultimate injury à Relieves original tortfeasor of liability for
lack of proxy cause
ii) The more culpable the intervening force, the more likely it supersedes
iii) Subsequent neg conduct generally not so unforeseeable that it cuts off liability. Look for passage
of time, longer time, at some point liability is cut
iv) Ex: Criminal acts or torts of 3rd parties, but only where unforeseeable under the facts or circum-
stances. Highly extraordinary harm arising from D’s conduct, including gross neg by 3rd parties.
Acts of god

6) Damages = P must affirmatively prove damages

a) P must prove damages, must be a cognizable injury
i) Personal injury and property damages are recoverable
ii) Nominal damages are not available
iii) Punitive damages are not available for just neg

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b) Compensatory damages – return P to pre-injury position

i) Rules – Must be:
(1) Type must be foreseeable (not the extent but the type of damage);
(2) Reasonably certain (not speculative);
(3) Not avoidable
ii) Two categories
(1) Special damages – Pecuniary (med costs), lost wages, cost of repair
(a) Can recover past, present, and future damages (future reduced to present value)
(b) Collateral source rule – The fact that P has insurance doesn’t mean D doesn’t have to
pay them. Also applies to gratuitous services
(2) General damages – More controversial because intangible
(a) Pain and suffering, difficult to measure
c) Punitive – never recoverable just for neg conduct – must be more culpable than negligence, like willful,
malicious, or reckless
i) Wealth of D highly relevant here
(1) Due Process Clause limits amt. more than 10% ratio to compensatory unconstitutional

7) Defenses to Negligence
a) Contributory neg and comparative fault (same analysis, diff. impact)
i) D has burden of proof to show that P’s conduct was unreasonable and fell below RPP standard
ii) Determination of legal effect depends on jurisdiction
iii) Contributory negligence à Any fault by P bars recovery
iv) Assume pure comparative fault where joint and several liability applies unless told otherwise (default)
(1) Can recover no matter how much at fault – whole minus % at fault
(2) Joint/sev applies – If multi D’s, each neg, and P also at fault, subtract out P’s % of fault and
then P can sue one to get full remaining amount and D can then seek contribution
v) Modified comparative fault à Barred if P is as much at fault or more at fault
vi) Last clear chance doctrine (generally the wrong answer!)
(1) Only applies in context of contributory
(2) If D’s neg occurs after P’s, so D had last opportunity to avoid, P is entitled to full recovery
b) Assumption of risk
i) P, through written or oral words, relieves D of resp. to be non-neg
(1) Not allowed for necessities. For ex. if LL rents apt or hospital provides care.
ii) P may impliedly assume the risk. Barred or reduced if D est. that P:
(1) Knew the risk
(2) Understood the risk
(3) Voluntarily chose to confront the risk
iii) Professional rescuers (firefighter rule) à where P is professional rescuer and is injured due to
inherent risk of that job, cannot recover in neg against person who created need
(1) Different from good doers who we want to encourage to come rescue so they can sue for neg
iv) Primary assumption of the risk
(1) Certain context, there is no duty to be non-neg
(2) Playing basketball. In agreeing to play, you relieve duty
c) Avoidable consequences – P must take reasonable steps after injury to not increase/exacerbate

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STRICT LIABILITY
1) Strict liability (SL) = D is liable for injuring P regardless if D exercised due care à P does not have to
show proof of fault
a) Possession of animals
i) Wild animal rule à If D keeps a wild animal and P gets injured because it does something char-
acteristic of that animal, keeper is strictly liable no matter how unforeseeable the harm
ii) Domestic pet rule à One free bite. Not liable unless on notice of danger
b) Abnormally dangerous activities Ex: Blasting, dynamite, chemicals
i) Abnormally dangerous when:
(1) High risk of serious harm to other +
(2) Cannot engage without risk and cannot eliminate risk with care +
(3) Not a common undertaken activity in the community
ii) P can recover absent proof of fault as long as D was involved and the activity caused the harm
iii) Proximate cause = P must be injured by the risk that makes it dangerous
c) Defenses
i) Contributory neg – D generally cannot raise this defense with SL
ii) Exception: P knew of the danger that justified imposition of SL, and his contributory neg caused
exactly that danger to be manifested à assumption of risk and P is completely barred from
recovery.

PRODUCT LIABILITY
1) Strict products liability = Focus on condition of product, not on D’s conduct
a) Proper P – Any P who is a user, consumer, or bystander physically injured using defective product –
No req of K/privity
b) Proper D – Commercial suppliers at all levels of distribution chain and those in market of selling it –
wholesaler, store, etc.
c) Proper context for products liability – Generally services are not enough, when both a product and
service, goods must dominate
d) Defect – All jurisdictions impose SL where product is in a defective condition unreasonably dangerous.
Formulations of liability occur under 3 categories of defect:
i) Manufacturing Defect (easiest) = Manufactured in a form other than intended by manufacturer. P
must show:
(1) Product more dangerous than consumer would reasonably expect when using in its
intended manner OR it is in a condition not intended by manufacturer and defected existed
when leaving manufacturer’s hands
ii) Design Defect = Made as intended by manufacturer but still presents a danger of personal injury
or property damage to P. 2 tests:
(1) Ordinary consumer expectation test – Product is more dangerous than would be
contemplated by the ordinary consumer, with ordinary knowledge common to the
community
(2) Risk-utility balancing – Jury determines the danger it threatens (cost in human injury and
property damage) outweighs its utility to society. Product will be found defective if an alter-
native design could have reduced the danger at about the same cost. Easy alternatives?
High likelihood of harm? Utility?
iii) Absence of warnings
(1) P is asserting a warning is inadequate –this is about reasonableness. Does warning
reasonably inform reader of risks? Look at language, placement, size of font
(2) P is asserting there is no warning – manufacturer has to warn about risks of which it knows
or should know and gravity and probability of harm
(a) 1% risk of death – they should warn

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(b) 1% risk of tooth discoloration – prob not

e) Cause-in-fact – Injury proven by showing P would not be injured but for the defect
f) Proximate cause – D knows or should have known about the risk. Different from neg. because
anyone could be held liable, as long as D is in the marketing chain
g) Damages – Recoverable when personal injury or property damage other than to the product itself
i) Where harm is only to product itself, only claim is breach of warranty. Consequential/subsequent
econ. losses not enough
(1) Car won’t start, lose $5k in deliveries. Not enough for strict products unless it blew up and
damaged garage also
h) Defenses
i) Misuse—P’s use of product is neither intended nor foreseeable
ii) Alteration—Employer removes safety devices to increase efficiency
iii) Assumption of risk—Comparative fault/general unreasonable conduct by P

2) Product liability on negligence theory

a) Any foreseeably P entitled to bring action
b) Analyze conduct of each D and ask if reasonable—differentiate from strict products, which consider
the product, not the person (D)
c) Res ipsa loquitur takes place of manufacturing defect in neg theory (toe in tobacco)
d) All neg defenses apply

3) Products liability on warranty theory

a) Express warranty exists where D makes a specific representation as to the quality/nature of the
product that becomes a basis of the bargain
i) Any seller can make this (manufacturer, distributor, seller)
ii) Can occur via advertising, during negotiations, or as K provision
b) Implied warranty / Warranty of Merchantability: Where a merchant deals in goods of particular kind,
the sale of such goods constitutes an implied warranty that those goods will be merchantable à they
are of average quality for goods of that kind and generally fit for the purpose of which such goods are
normally used
i) Warranty of merchantability = Fit for intended use
(1) Requirements of privity and notice
(2) Can be disclaimed by K
c) Where harm is to the product itself, the only claim a P can pursue is for warranty

NUISANCE
1) Public Nuisance: An unreasonable interference with a right common to the general public (i.e. health,
safety, and morals of community)
a) Typically brought by gov actor such as attorney general

2) Private Nuisance: A thing or activity that substantially and unreasonably interferes with P’s use and
enjoyment of land
a) Mental state: Usually intentional, because once D is placed on notice that she is interfering, D still
doesn’t stop
b) 5 factors for balancing substantial/unreasonable interference
i) Value of D’s activity;
ii) Alternatives?;
iii) Nature of locality;
iv) Extent of P’s injury;
v) Who was there first? (Used to be a defense now just a factor)
c) Remedy = Injunction (equitable relief) – P must persuade a judge that:

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i) Suffering or will suffer irreparable harm + Damages are inadequate remedy

ii) Judge will then do balancing test

DEFAMATION
1) P must establish that D published defamatory material concerning P that caused reputational harm

2) Elements:
a) Defamatory message = Subjects P to scorn, ridicule, or deters others from dealing with P causing
reputational harm (Ex: accusing of heinous crime)
i) Must be one which can be believed as truthful and reputation harming – hyperbole and opinion
are not defamatory
b) Pleading problems
i) Where P is not named, they must allege it is of or concerning P, P must be identifiable by context
c) Publication = Someone other than P read, saw, or heard the defamation
i) P must show D either intentionally published the info or was negligent in publishing
ii) Republication rule – In addition to D who originates the defamatory message, other persons
who repeat it are potentially liable
d) Type of Defamation – Libel vs. slander
i) Libel = defamatory message embodied in any relative permanent form à Reputation harm
presumed and damages do not have to be proven
ii) Slander = Defamation in spoken rather than written form à to recover, must prove special
damages which are specific economic losses that flow from the slander, then can get reputation
damages too
(1) Slander per se
(a) Slander which imputes to P behavior or characteristics that are incompatible with the
proper conduct of his business, profession or office
(b) Slander that imputes to P commission of crime involving moral turpitude or infamous
punishment (prison/death)
(c) Allegations P has some loathsome disease
(d) Falsely imputing lack of chastity to a woman
e) Common law privileges
i) Truth – P must prove falsity as part of his prima facie case
(1) Exception: P is a private P and matter is a private concern
ii) Absolute privilege – D may not be held liable for an otherwise defamatory message as a matter
of law. No matter how bad the D is. Blanket protection
(1) Contexts:
(a) Communications between spouses
(b) Statements made on floor of legislature
(c) Between high ranking exec officials
(d) Made in conduct of judicial proceedings
(2) Privilege returns if someone repeats in a non-privileged situation
iii) Qualified/Conditional privilege
(1) D is qualifiedly immune from liability for defamatory messages (among others):
(a) Made in a communication that appears reasonably necessary to protect or advance
the D’s own legitimate interests;
(b) That were communicated on a matter of interest to the recipient of the communication
or a third person;
(c) That were communicated concerning a matter of public interest to one empowered to
protect that interest.

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(2) Will lose priv if:

(a) Bad intent / acts out of malice
(b) He does not believe the truth of the defamatory communication
(c) Is reckless as to its truth/falsity

3) Constitutional issues
a) Four approach questions:
i) What is the status of P? (public official, public figure, private figure);
ii) What is the subject matter of statement? (Public or private concern);
iii) What damages does P seeks?;
iv) What is the status of the D?
b) Public Official: If defamation is related to capacity as public official, P must prove clear and
convincing evidence of actual malice à D knew it was false or recklessly disregarded truth or falsity
c) Public figure: Treated just like Public official, same standard – Clear/convincing
i) All purpose public figures: household names, i.e. Madonna
ii) Limited public figures: Inject selves in controversy
d) Private Figure: Look at subject matter and determine whether it is of public or private concern.
Consider form, content, and context
i) Public concern à If you are willing (and can) prove reputational harm (actual damages), the state
can set any standard of fault but always below strict liability. Most use negligence.
(1) Presumed or punitive damages require actual malice
ii) Private concern à P does not have to prove actual malice to get presumed or punitive damages
(note - not settled; not tested)

OTHER TORTS
1) Invasion of Privacy
a) Intrusion into Seclusion = D unreasonably intrudes into P’s seclusion (zone of privacy)
i) Intrusion must be highly objectionable to a reasonable person (ex: wiretapping, stalking)
ii) Damages include compensatory damages (e.g. mental distress) and if bad enough, punitive
damages
b) Commercial Appropriation of Likeness or Identity = Unauthorized use of P’s name, voice, or like-
ness for D’s commercial advantage. Newsworthy purpose of P’s likeness or identity is exempt
c) Public Disclosure of Private True Facts = P must prove:
i) Disclosure + of private facts + disclosure is highly offensive to reasonable person + not
newsworthy
ii) Look for passage of time – 20 years pass and less relevant
iii) Need some sort of publication/dissemination
iv) Injunction possible because info is true (unlike defamation)
v) If D gets info from public records, can’t be liable for sharing that info
d) Portrayal in False Light = D publishes matters portraying P in a false light. Looks like def. but not
quite, like saying someone has cancer or is poor. P Must show:
i) Publication + Of false information + divulging of info is highly offensive to reasonable person +
Some level of fault (parallel to defamation rules – actual malice, etc.)
e) Malicious prosecution = Crim proceedings instituted by D, done for an improper purpose and without
probable cause, that terminate favorably for P and cause P damages (P must prevail on the merits)

2) Economic torts
a) Intentional misrepresentation
i) Elements
(1) Intentional material misrepresentation
(2) Of past or present fact

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(3) Made with scienter

(4) On which the P justifiably relies
ii) Misrepresentation can be a false, affirmative assertion of fact (engine is new); or an active
concealment (roll back odometer) Failure to disclose is not enough unless:
(1) Fiduciary relationship; or
(2) Ambiguous or misleading statement that causes reliance; or
(3) D makes assertion, believing true, but then discovers it was false or circumstances
changed and fails to disclose; or
(4) D makes false assertion not intending reliance but discover P relied; or
(5) P reasonably expects there would be disclosure
iii) Mental state (key) à D must intend P or class of persons which P belongs will rely (will act or fail
to act in reliance on his misrepresentation)
(1) Scienter present when D knew was false or is reckless as to veracity
b) Negligent Misrepresentation
i) Rule: D has no duty to avoid negligent infliction of pure economic loss
ii) Exception 1: When there is a special relationship like fiduciary duty or if D knows that they are
acting for benefit of 3rd party and they rely and suffer economic loss
(1) Ex: Lawyer prepares a K for client and drafts it negligently so the client loses $1M and
client sues for malpractice—lawyer cannot avoid liability because it’s purely an economic
loss. There is a fiduciary duty
iii) Exception 2: If D knows that they are acting for benefit of 3rd party (end and aim to benefit the 3rd
party) and the 3rd party relies and suffers economic loss
(1) Ex: context of lawyer/client, non-parties can only recover in content of will drafting, where
drafted negligently leading to economic loss for intended beneficiary
c) Interference w/prospective econ advantage = Protects “expectancy” interests of future contract
relations of a party. P can prevail only by showing that D:
i) Knew of prospective econ advantage +
ii) Acted to interfere with it for improper motives
(1) D can act to protect own competitive interest
d) Injurious falsehood – P must prove:
i) False statement;
ii) Actual malice or D knew statement was false or recklessly disregarded veracity;
iii) Made to another or published;
iv) Causing specific economic injury to P;
v) Not about reputational harm but about econ loss

3) Vicarious liability
a) Employer/employee (respondeat superior) à Employer liable for injuries caused by negligence or
strict liability of employee if occurred within the scope of employment
i) Employer can be directly liable if negligent hiring
ii) Intentional torts by employee are generally outside scope except when employee uses force in
duty
b) Independent contractor (IC) à D not liable for torts committed by IC’s because no right to control
i) Whether IC depends on whether person who hired dictates the means, method and manner.
More control exercised, more likely employee not IC
c) Parent/child à Parent not generally vicariously liable for torts of child absent statute saying otherwise
i) Can be liable for own negligence or negligent supervision or entrustment

4) Abatement/survival of action and wrongful death

a) Survival statutes (modern)—Death of victim or tortfeasor no longer abates tort action and claim can
be brought by estate of decedent
b) Wrongful death statutes—All jurisdictions statutorily provide for an action by which either heirs of

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a deceased victim or personal representative of victim’s estate may bring action for wrongful death
for their own losses resulting from victim’s death (i.e. wages victim might have earned over lifetime,
damages such as victim’s medical expenses)
c) Loss of consortium = where spouse is killed, surviving spouse may bring claim for intangible injuries
of loss, comfort, companionship etc.

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