Torts Outline

Exam Strategy
5-Step Process:

(1) What torts are in play?

o For each question → ID whether it is
 INTENTIONAL TORT
 NEGLIGENCE or
 STRICT LIABILITY
(2) Which parties are suing whom?
o Who is Π and Δ for each tort?
(3) Prima facie requirements for each tort
(4) Affirmative defenses for each tort
(5) General consideration items

Also remember that there can be multiple tortfeasors!!! So someone else’s liability doesn’t
necessarily negate yours!!!

INTENTIONAL TORTS

Super-Sensitive Π
Super-sensitivities → we do NOT take these into account UNLESS Δ knows of the sensitivity

Incapacitated Δ
Incapacitated Δ → Δ’s incapacity is irrelevant re: liability
 Everyone is liable for intentional torts
o Including young children, mental incompetents, drunkards, etc.

WATCH OUT → there is no conclusive presumption that IPs can’t form intent; but it could be shown at
trial that they can’t—so watch for correct answer that says “if the disability prevents Δ from being able to
form the necessary intent”

Transferred Intent
Transferred Intent → doctrine applies where Δ intends to commit a tort against one person, but instead:
(1) Tort to tort → Δ commits different tort re: that person
(2) Person to person → commits same tort re: different person, or different tort re: different person

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 Tort Intended or Resulted MUST be one of the following:
o Assault
o Battery
o False Imprisonment
o Trespass to Land
o Trespass to Chattels

There are Seven Intentional Torts…

***Remember you have to find INTENT in all of them!!!

TWO WAYS TO COMMIT INTENTIONAL TORT:

(1) Actor intends the consequence
(2) Substantial Certainty Test → know w/ substantial certainty that consequence will result (i.e., “knew it
was very likely”) (higher standard than recklessness!!)

(1) Battery
Prima Facie Case
(a) Harmful or offensive contact (offensive if unconsented to)
(b) With Π’s person → can touch body or anything connected
(c) Intent to bring about the harmful or offensive contact → need not intend injury, just contact
(d) Causation (self-explanatory)

(2) Assault
Prima Facie Case
(a) Reasonable apprehension of
o Apprehension must be reasonable
o Does not require that victim fear the contact (big guy, little guy fact pattern)
o Π must know the act happened in order to apprehend it
o Doesn’t matter if Δ is actually capable of battery, just has to have apparent ability
(b) An imminent, offensive contact (battery)
o Must be immediate
o Words alone are not sufficient → need words coupled w/ conduct
o Words can undo conduct (“I’d hit you if I didn’t love you”)
(c) Intent to make Π apprehend
o Doctrine of transferred intent applies
(d) Causation (self-explanatory)

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(3) False Imprisonment
Prima Face Case
(a) Sufficient act of restraint
o Common sense analysis → physical barriers, force, direct threats, inaction (Δ does
nothing when there’s understanding that Δ would act, e.g., providing no boat to get
ashore from ship), invalid use of legal authority
o Requiring someone to remain in a place in order to get their stuff qualifies (if person
reasonably believes they won’t get their stuff back unless they stay)
o Insufficient restraint → moral pressure, future threats
o Shoplifting detentions → store owner can detain potential shoplifters to investigate IF:
(i) Reasonable belief as to the theft
(ii) Reasonable manner of detention (no deadly force)
(iii) Detention for reasonable period of time
RECAPTURE OF CHATTEL → defense to assault, etc. if reasonable suspicion of
shoplifting
(b) Bounded area
o Π’s movement in ALL directions must be restricted
o Not bounded if (i) reasonable means of escape (no rat-infested crawlspace) and (ii) Π
knows of it
o Victim must either:
(1) KNOW of confinement, or
(2) be INJURED by it (e.g., kid kept by dad w/out custody rights is deprived of
mom’s care, even though he didn’t know he wasn’t free to leave)
(c) Intent of Δ to confine Π to the bounded area
o Doctrine of transferred intent applies
o Good defense = Δ didn’t know Π was confined
(d) No reasonable means of escape

Defense of Others → may be justified in confining someone if they pose a threat of

injury to others and a reasonable person would do the same

NOTE → Π can recover for humiliation damages due to false imprisonment (see IIED below)

(4) Intentional Infliction of Emotional Distress (bar exam fave)

Prima Facie Case
(a) Outrageous conduct
o Mere insults not enough (e.g., gangsters harassing customers and demanding “protection
money”)
o Continuous conduct → could qualify if Δ does something non-outrageous over and over
o Type of Π → non-outrageous conduct becomes so re: pregnant women, kids, elderly
 If Δ knows that Π is more likely to experience emotional distress, Δ is
responsible for this
o Common carriers & innkeepers → non-outrageous conduct by one of these becomes

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 outrageous (e.g., bus driver’s insult is outrageous)
 Applies to passenger and guests only!!!

(b) Knowing or reckless intent to cause severe emotional distress

o No transferred intent
o Bystander cases → if Δ does something to X and causes emotional distress to Π, must
show:
(i) Π’s presence → Π was present when injury to X occurred
(ii) close family member → Π was a close relative of X
o If not a close relative—need bodily injury
(iii) Δ’s knowledge → Δ knew that Π was present and a close relative of X
o Note → if Π can prove that Δ intended to cause emotional distress to Π, then Π does not
have to prove the above
(c) Causation
(d) Damages
o Need clear proof of substantial emotional distress (“I didn’t sleep well last night” is not
enough)
o Physical injury is NOT required

NOTE → humiliation, anger, embarrassment, grief, mental anguish, nausea

 These are the things that people sue for under IIED

(5) Trespass to Land

Prima Facie Case
(a) Intent to enter
o Mistake of ownership is NO DEFENSE to trespass
o Do NOT have to intend to trespass—just enter
(b) Act of physical invasion by Δ onto Π’s land
o Δ doesn’t have to personally go onto land → could throw something onto it, stay too long
o On, above, or below the surface
(c) Causation

NOTE → no damage to land required

 UNLESS it was negligent or reckless entry onto land (then see negligence)
 Accidental entries → generally, no liability

(a) “Act of physical invasion by Δ”

 Does not require that Δ personally go onto Π’s land
o Could just throw something onto it, or push someone else
o Could stay longer than permitted
 But there must be some physical intrusion
o Note → if no physical intrusion, consider nuisance doctrine

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(6) & (7) Conversion
Trespass to Chattels → e.g., major departure from scope of permission for use (minor deviation, e.g.,
stop for a loaf of bread, is ok)
 Δ interferes w/ Π’s right of possession in the chattel Intent Requirement:
 Can recover cost of repair Δ need only intend the act
Conversion → exercise of DOMINION & CONTROL over chattel that interferes w/ chattel—
 Δ seriously interferes w/ Π’s right of possession in the chattel doesn’t matter if Δ didn’t
o Note → can’t be liable for conversion if you are a BFP realize he was taking
 Can recover FMV another’s property!!!

How to distinguish?
o Trespass to chattels → some damage
o Conversion → a LOT of damage (e.g., HALF or more of the value)

Remedy
 Trespass to chattel → DIMINUTION IN VALUE of the chattel at time/place of tort
 Conversion → FULL MARKET VALUE of the chattel at time/place of tort…not cost to buy
new!! And NOT FMV at time of trial!!!

Recapture of chattel → may only use PEACEFUL MEANS when possession of the
chattel began lawfully (i.e., Π let Δ borrow it, but then Δ wouldn’t give it back)

DEFENSES TO INTENTIONAL TORTS

Consent
3-step analysis:
(1) Did Π have capacity to consent?
o Incompetents, drunkards, and very young children are deemed incapable of consent to
tortious conduct
(2) Was the consent express or implied?
o Express
 Use of words (easy to spot)
 Express consent might be invalid if:
(i) mistake → if Π consents by mistake, the consent is still valid UNLESS Δ
is the one who caused the mistake, or Δ knows of it and takes advantage
(ii) fraud → fraud negates consent IF it goes to an essential (not collateral)
matter
(iii) duress → invalidates consent; but threats of future action or of some
future economic deprivation do not constitute legal duress
o Implied
 By custom & usage (e.g., implied consent to contact in football game, or to
emergency services)
 By Π’s conduct

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  By law
(3) Did Δ stay w/in in the bounds of the consent?
o E.g., there’s implied consent to contact during football, but not kicking in the groin

Self-Defense, Defense of Others, & Defense of Property

Requirements:
(a) Timing requirement
o Must show that tort is either now occurring or about to occur
o May NEVER use force in retaliation (once tort is finished)
o Hot pursuit → re: defense of property, tort is considered to still be occurring if you’re
chasing Δ who stole your chattel
(b) Reasonable Belief
o Reasonable person under the circumstances would believe that tort is or will be
committed, AND Δ honestly believes it (objective & subjective)
o Defense of others → need reasonable belief that victim would have right to self defense
 Risk of mistake → borne by intervenor!!! Reasonableness of actions does not
protect from liability when victim would not have had a right to self-defense
 Example—lock up → could lock individual up if you reasonably believed they
posed a risk of injury to others, “defense of others” defense
o Duty to retreat → NO such duty
 MODERN TREND → there is a significant modern trend for imposing a duty to
retreat before using serious force if you:
(i) Can do it safely
(ii) Are not in your own home
o Request to desist → must usually precede use of force re: defense of property (unless it
would be futile or dangerous)
(c) Amount of Force
o May use that force which reasonably appears necessary to prevent the harm
o Deadly force ONLY to stop deadly force → NEVER for defense of property!
 Attack in home → not considered defense of property, considered self-defense, so
deadly force is ok if reasonable
 Example of deadly force → forcing trespasser of necessity to go back out into the
deadly blizzard!!!
o Aggressor → cannot use self-defense unless victim uses deadly to respond against non-
deadly

Defense of Property
 One may use REASONABLE FORCE to prevent the commission of a tort against one’s property
o NO death or serious bodily harm
o One may not use INDIRECT deadly force (i.e., leave on power generator) when such
force could not lawfully be used

Necessity
2-step analysis:
(a) Must be committing a property tort (mostly likely trespass to land)
(b) Determine if it is public or private necessity

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 o Public → for the benefit of many
 NO liability, ever → this is an absolute, unlimited privilege
o Private → for the benefit of Δ or a few others—available if f reasonable person would
believe the action was necessary to prevent harm to person OR property (even if honest
mistake)
 Δ is liable for any actual damage caused (including physical, e.g., heart attack)
 Note → you are NOT considered a “tortfeasor” but you’re still liable for any
damage caused (i.e., it’s a QUALIFIED defense)

EXAM TIP → if the tort is not a property tort, avoid the answer that says “what Δ did was necessary”
EXAM TIP → if Π claims defense of property and Δ claims necessity, Δ wins (necessity prevails over
defense of property)
 E.g., if Δ tries to tie boat to pier during storm and Π tries to stop him → Δ will be able to claim
necessity, but since this is private, he will have to pay for any damage to the pier

Recovery of domestic animals → when domestic animal strays onto another’s land, animal owner is
NOT privileged to enter the land to reclaim (must go to court ro reclaim)—when animal owner’s
negligence causes the trespass, animal owner is liable, period!!!

HARM TO ECONOMIC & DIGNITARY INTERESTS

Defamation
Prima Facie Case
(a) Defamatory statement made about this Π
o Must be statement of FACT (not opinion) → mere name-calling not enough
o Accusation need not be BELIEVED to be actionable
o If statement is not defamatory on its face:
 Inducement → Π pleads additional, extrinsic facts
 Innuendo → Π establishes the defamatory meaning by innuendo
o E.g., Δ says that Π had twins → Π shows she has only been married a month
o If no clear reference to particular Π (e.g., “he”) → Π must establish colloquium
 i.e., introduce extrinsic facts that would lead a reasonable person to perceive the
statement as referring to Π

(b) Publication
o To 3d person who understands (e.g., foreign language)
o Intentional or negligent (Δ calls Π a “crook” in public → test is reasonable foreseeability
that when Δ spoke others would hear)

(c) Damage to Π’s reputation (e.g., threaten reputation for honesty, virtue, sanity, etc.)
Injury presumed (NO need to prove special damages … can get general damages) for:
o Libel → written defamation
o Slander per se → spoken words that fall relating to the following categories:
 Business or profession
 Crime involving moral turpitude
 Loathsome disease (leprosy or venereal disease)

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  Imputing unchastity to a woman
Injury NOT presumed (must prove special damages) for:
o Slander not per se → spoken words that require additional facts to establish defamatory
content; so Π has to prove special damages → have to show a money injury (such as
losing your job; not just that friends won’t talk to you anymore)
o Makes sense to have to prove damages because the nature of the defamation doesn’t
automatically indicate that you were hurt

IF MATTER OF PUBLIC CONCERN → FIRST AMENDMENT APPLIES

(d) Falsity → so truth is no longer a defense
o Note → regular defamatory statement must also be false – but Π doesn’t have to prove it
unless 1A applies; if no 1A, BOP is on Δ to show truth as a possible defense

(e) Fault
o If public figure → have to prove either intentional or reckless conduct (i.e., knowledge
of the falsity or reckless disregard in ascertaining its truth)
 NY Times v. Sullivan → uses the term “actual malice”
 Good defense = Δ thought he was printing the truth
o If private person → only have to prove negligent tortious conduct
 But must show actual damages → not confined to $$, can show (e.g.) that friends
no longer talk to you
 Don’t have to prove malice → but if you can prove malice, you can also get
punitive damages and don’t have to prove actual damages

EXAM TIP → if defamation doesn’t work, try intentional infliction of emotional distress

One who REPEATS A DEFAMATION → will be held liable on the same general basis as the primary
publisher, even if the repeater states the source or makes it clear that he doesn’t believe the defamation!

Defenses to Defamation
(1) Consent (see above)

(2) Truth (unless it’s a First Amendment Case)

(3) Absolute & Qualified Privileges → situations where, from a societal standpoint, we want to
encourage speech
 Absolute privilege → cannot be lost
o Spousal communication
o 3 govt. branches:
 Executive
 Legislative
 Judicial (anything said in course of litigation)
 Qualified privilege → can be lost if abused
o Abuse → bad faith, lack of an honest belief in the statement, malice in the publication,
excessive publication
o If you feel like we would want to encourage this type of communication, give Δ a
qualified privilege

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 o E.g., written references, book reviews, articles on public institutions, statements made to
parole board, statement by credit bureau to customer, doctor’s diagnosis, etc.

EXAM TIP → exam will give you a fact pattern where Δ tells a horrible defamatory lie, but has an
absolute privilege, don’t fall for it! Δ is NOT liable!

Invasion of Privacy
4 types:

(1) Appropriation by Δ of Π’s name or picture for Δ’s commercial advantage

o “commercial advantage” → meaning is limited to the promotion of goods or services
 E.g., use of sports hero’s photo for an ad for goods w/out permission
 E.g., sale of story to paper does not qualify because there’s no sale of goods or
services

(2) Intrusion on seclusion

o Elements:
(i) Act of intrusion onto Π’s seclusion
o No physical intrusion required (e.g., looking w/ binoculars qualifies)
(ii) intrusion must be objectionable to a reasonable person
(iii) thing intruded upon must be “private”
o Δ must have intruded into Π’s own private corner of the world (e.g., hospital
room during dying moments)
o NOT an invasion of privacy to observe or photograph Π when in public place (including
secluded romantic restaurants) → e.g., Jackie Onassis hypo
 NOTE → repetitive conduct like this might qualify as intentional infliction of
emotional distress

(3) Publication of facts placing Π in a “false light”

o Elements:
(i) Wide dissemination of facts placing Π in a “false light”
(ii) “false light” is objectionable to a reasonable person under the circs
o E.g., attributes to Π views or actions that aren’t his
(iii) intentional or reckless conduct
o SC in Time v. Hill said that if it deals w/ matter of public concern (if widely
disseminated, it usually is) then Π must prove intentional/reckless conduct
o This is a fallback if defamation won’t work → in an ESSAY…DISCUSS BOTH!!!
 Ben Johnson & Magic Johnson example (pic of MJ near story of BJ’s drug abuse
on front page, made it look like MJ was the one abusing drugs)

(4) Publication of private facts about Π

o Statement in question is true (so “false light” and defamation don’t apply)
o Must be private facts
o Reasonable person standard → would a reasonable person object to the wide
dissemination of these facts? Are they sufficiently private?
EXAM TIP → if Π is photographed in a public place, this is NOT invasion of privacy

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Defenses to Invasion of Privacy
(1) Consent

(2) Same Privileges as re: Defamation

 Absolute privileges → spousal communication, 3 govt. branches
 Qualified privileges → anywhere that we would want to encourage speech

Misrepresentation
Intentional Misrepresentation

(a) Misstatement of fact, not opinion

o UNLESS the opinion was rendered by someone w/ superior skill (see justifiable reliance
below)
o Affirmative speech required → silence is not enough
Exceptions:
 Fiduciary relationship
 Real property sale where Π can’t reasonably discover material facts
 Δ’s prior statements have misled Π (so Δ has a duty to correct)

(b) Scienter
o Knowing or reckless (note—Δ need not actually know)
o Basically the same thing as “malice” → except that you say “malice” re: defamation and
“scienter” re: intentional misrepresentation

(c) Intent to induce reliance

(d) Justifiable reliance

o NO duty to investigate to show that reliance is justifiable
o When Δ gives an opinion → reliance is justifiable only when Δ has superior skill

(e) Causation

(f) Damages (pecuniary damage)

Negligent Misrepresentation
 Same as intentional → except that negligence replaces scienter
 Commercial setting → this tort can only apply in a commercial setting
o So if neighbor makes a negligent representation in conversation, this tort does not apply
o However, could still claim intentional misrepresentation if intentional

Interference with Business Relations

Prima Facie Case
(a) Valid K relationship between Π and 3d person (X)
o Relationship can be either existing or prospective

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  Existing → Π and X have an existing contractual relationship
 Prospective → Π and X are negotiating to enter into a relationship
(b) Δ’s knowledge of the relationship
(c) Intentional & improper interference by Δ that induces a breach or termination
o Negligent interference is not enough
o Use of position with company to steal away business would be improper
(d) Damage

EXAM TIP → it’s much easier for Π to win if Δ’s interference is w/ an existing business relationship
Defenses to Interference with Business Relations
Privileges → Δ’s conduct may be privileged where it is a proper attempt to obtain business for the
interferor, but the ends and means used must be proper; look to:

 Δ’s persuasion conduct

o What exactly did Δ do to persuade X to leave?
o The harsher the conduct, the harder to get a privilege
o Improper means (e.g., making misrepresentations, lying) will not give Δ a privilege

 Relationship between the parties

o Between Π and Δ → “competitor privilege”
 If Π and Δ are competitors, Δ will win if Δ merely interfered w/ a prospective
relationship (as opposed to existing ones)
o Between Δ and X
 If they are close relatives, Δ is X’s advisor, Δ has financial interest in X, etc. → if
the relationship is strong, Δ will probably have a privilege

NEGLIGENCE
i.e., “personal injury” or “property damage”

(1) Duty
Duty → duty on part of Δ to conform to a specific standard of care for the protection of Π against
unreasonable risk of injury

Two Requirements:
(a) A foreseeable Π
(b) Standard of care

(a) A foreseeable Π
 Duty is owed only to foreseeable Πs
 Palsgraf definitions of foreseeable Π:
o Andrews approach → everyone is foreseeable
 Basically, if you breach a duty toward one person, anyone else ultimately injured
is a foreseeable Π
o Cardozo approach → ask if Π was w/in the foreseeable zone of danger

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EXAM TIP → if question doesn’t specify which approach to follow, follow Cardozo; discuss both in an
essay

EXAM TIP → right answer will usually use the words “zone of danger”; you should also use these in
essay answers

Rescuers → Δ will be liable if he negligently puts himself or a 3d person in peril and Π was injured in
attempting a rescue, as long as the rescue was not wanton → a rescuer is a foreseeable Π
 Assumption of risk → persons who undertake to save the lives of others are generally NOT held
to have voluntarily assumed the risk…depending on the circumstances
 ALL circumstances will be considered when evaluating the conduct of the rescuer
 Fireman’s rule → land occupier NOT liable to fireman/policeman caused by hazard which
brought them there in the first place, injury is considered part of risk of employment
o Fireman/policeman is deemed to know of inherent risks—including fact that landowner
may have failed to inspect/repair other dangerous conditions on land

(a) Standard of care → MOST IMPORTANT PART OF NEGLIGENCE!!! There are a few
possibilities:

(i) Reasonable Person Standard → OBJECTIVE standard

 “reasonable person” → has average traits and characteristics
 Δ’s physical characteristics WILL be taken into account (e.g., blindness)
o If Δ has a disability, and knows of it, he is supposed to act as a reasonable
person w/ that disability would act
o Person is held to know his/her own physical disabilities—under duty to
exercise care of person w/ such knowledge
 Emergency situation → reasonable person in an emergency

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(ii) Children Standard

 Younger than 4 yrs
o Children under 4 are deemed incapable of negligence
o But remember → everyone is liable for intentional torts!!
 Older than 4 yrs
o Child is held to a standard of a child of LIKE age, education, intelligence,
and experience
o So it’s a SUBJECTIVE standard
 Engaged in adult activity
o Exception when child is engaged in adult activity (e.g., 14-year-old driving
truck) → held to normal, reasonable person standard

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(iii) Professional Standard

 Held to standard of reasonable professional in the same or similar communities

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  Specialists → we take Δ’s expertise into account
o Specialist is required to possess and use knowledge/skill of member of
profession in good standing in similar communities
o E.g., we expect more of a heart surgeon re: heart problems than a general
practitioner
o Physician’s duty of care
 Must obtain INFORMED CONSENT
 Must provide patient w/ enough info re: risks to enable patient to give
informed consent

(iv) Common Carriers & Innkeepers

 Held liable even for slight negligence
 NON-DELEGABLE DUTY (i.e., still liable even if negligence of independent
contractor)
 Passenger or guest → Π MUST be either a passenger or a guest
o So if bus hits a car, driver of car must prove ordinary negligence (reasonable
person standard); whereas passenger could sue for slight negligence

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(v) Owner-Occupier Standards (remember—NEGLIGENCE, not STRICT LIABLITY)

(1) Δ must be the owner-occupier, or in privity w/ one
o Privity → e.g., family members, employees
o Red herring → watch out for situations where Δ is not the owner-occupier
- E.g., where Π is hit by laundry truck when crossing land, truck driver
is not owner-occupier
(2) Determine whether injury occurred ON or OFF the land
o OFF the land → if off, avoid any answer choices that refer to Δ as a
trespasser, invitee, or licensee (Δ must be on the land to fall into the
categories
 Owner of land owes a duty to those off the land for →
unreasonably dangerous artificial conditions
o ON the land
(a) Is Π an UNDISCOVERED TRESPASSER?
 If yes → Δ has NO duty to them; Π always loses!!!
 Note → mere fact that a place hires a security guard doesn’t
mean that trespassers are anticipated
(b) If Π is a trespasser, licensee or invitee → determine what caused the
injury
 Activity → if an activity (something Δ is doing) caused the
injury, the standard is ordinary negligence (reasonable person)
o Π’s status is irrelevant
 Dangerous condition → if the injury is caused by a dangerous
condition, Π’s status matters
o KNOWN/ANTICIPATED/DISCOVERED
TRESPASSER → duty to warn of known, dangerous
conditions on the property
Δ is responsible:
 ONLY for artificial conditions, not natural ones
 ONLY if they involve risk of serious injury

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  ONLY conditions that Δ knows of
o LICENSEE (someone who is on Δ’s premises for
his/her own purposes (e.g., salesperson, social guest))
→ duty to warn of known, dangerous conditions on
property
Δ is responsible for:
 Dangerous conditions (artificial & natural)
 That Δ knows of (no duty to inspect for defects)
 No limitation to serious injuries
o INVITEE (someone who is on land for Δ’s purposes
(i.e., business customer)
NOTE → a person loses their status
as an invitee if they exceed the Δ is responsible for:
scope of the invitation (e.g., go  Dangerous conditions (artificial & natural)
from dining room of restaurant to  That Δ should know of → Δ must make
kitchen, swim outside of roped-off
area of pool) reasonable inspection of premises to find
dangerous conditions
 No limitation to serious injuries
 Duty to inspect & duty to make safe!

Discharge of duties → owner/occupier can discharge of duty by:

(1) Warning of the dangerous condition
o Must determine whether the warning was adequate
(2) Making the dangerous condition safe
o Unlikely that this will come up on an exam, because if it was really made
safe, there wouldn’t have been an injury…

Obvious Dangerous Conditions

 NO liability
 If the condition is obvious, it carries its own inherent warning

“Attractive Nuisance” Doctrine → young trespassers (common exam question)

(1) Land occupier knows or should have known that children are likely to
trespass
(2) Land occupier knows or should have known that there are conditions on
property which pose serious risk of injury to kids (no duty to inspect)
(3) Children (due to immaturity) are unable to recognize/appreciate risk
(4) Burden to eliminate risk is small compared to risk to children
- Child does NOT have to show that the dangerous condition attracted
him to it
- To avoid liability, land occupier must show that the expense of
further precaution outweighs the magnitude of risk (higher standard
than reasonable care!)

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(vi) Statutory Standards

 Exam question will provide the statutory standard
 Statutory standard, if applicable, always trumps the reasonable person standard

Is Statutory Standard Applicable? → 2-part test

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 (1) Π must fall w/in the protected class (usually is)
(2) Statute must be designed to prevent this kind of harm
- E.g., anti-marijuana rules are not intended to protect the Π who
smokes up in a house w/ a gas leak causing an explosion

EXAM TIP → on the majority of exams, the statute in the fact pattern
was NOT designed to prevent the harm that ultimately occurred
~ so DON’T jump the gun and assume the statute applies

3 possible outcomes:

(1) Statute Inapplicable (2) Non-compliance w/ (3) Compliance w/

Applicable Statute Applicable Statute
(claimed by Π) (claimed by Δ)

Does NOT mean lawsuit is over Establishes negligence per se Does NOT necessarily establish
 Have to determine what (defined below) due care
other standard to apply (e.g.,  Exceptions: (where NPS is  Δ is still responsible if the
reasonable person) not established) facts indicate that Δ should
(1) compliance would cause have exercised more care
MORE danger (e.g., (e.g., driver who is at speed
drive on wrong side of limit during blizzard)
road to avoid accident)
(2) compliance would be
impossible (e.g., due to
incapacity, emergency,
etc.)

o Negligence per se → conclusive presumption of negligent conduct by Δ

- Encompasses the 1st two elements of negligence (duty & breach)
 As opposed to negligence liability (encompasses 2d two
elements, causation & damage)
- Establishing negligence per se does NOT mean that Δ is
automatically liable → Π still has to show that Δ caused damage

EXAM TIP → avoid answer which reads “because the statute

was violated, Δ is liable”
~ This is WRONG
~ Fact that statute was violated is NOT enough for negligence
liability → still have to show that Δ’s negligent conduct
caused damage

Duty Re: Negligent Infliction of Emotional Distress → Π has a duty to AVOID negligent infliction of
emotional distress to others

Two Requirements:
(1) Π must suffer physical injury (shock is enough)
o Contrast w/ intentional infliction → where no physical injury needed

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 o Exception → mishandling of corpse, Π can recover even w/out physical injury
o “parasitic” → can tack on damages for emotional distress to another tort that causes
physical injury
(2) Π must show that he was w/in the target zone of Δ’s negligent conduct
o If Π’s distress is caused by threat of physical impact, the threat must be directed at Π or
someone in her immediate presence (bystander outside the “target zone” of danger of
physical injury cannot recover)
 E.g., mother who suffers heart attack after seeing child struck by car on other
side of street is NOT w/in zone

o Modern trend → rejection of “target zone” requirement

 Recovery allowed if:
(i) Π and victim are closely related
(ii) Π was present and perceived the injury

EXAM TIP → in an essay, discuss both the majority rule AND the modern trend

Affirmative Duty to Act

 General Rule → there is NO affirmative duty to act!!!

o E.g., if Δ finds Π all bloody and injured, Δ can just walk away and does not have to help

 Exceptions:
(1) Special Relationship Between Parties—Contract or Statute
 Family members
 Employer & employee
 Common carriers & passengers
 Innkeepers & guests
 Owner/occupier & business invitees (if someone is in trouble in your store, can’t
just ignore it)
 Someone like a lifeguard
(2) Duty to Control Third Persons
 Generally, no duty to control 3d persons, BUT the duty might imposed if:
(1) Δ has actual ability to control the 3d person
(2) Δ has the authority to control the 3d person (e.g., parent)
(3) Δ knows or should know that it’s required
(3) Creation of Peril
 If you gratuitously act to help someone, you have a duty to do so like a ordinary,
prudent, reasonable person, and to continue the assistance
 If Δ’s negligent conduct placed Π in peril in the first place, Δ is under a duty to
use reasonable care to help Π (even if Δ caused the peril accidentally!!!)

(2) Breach
Breach of Duty → means “negligent conduct” has occurred
 Test:
(1) Show what Δ did
(2) Show that it violated the applicable standard of care

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Res Ipsa Loquitur → “the thing speaks for itself”
 Deals w/ situations where the fact that a particular injury occurred strongly indicates that
someone was negligent
 Used when Π doesn’t have enough hard, solid evidence to definitely establish Δ’s negligent
conduct
o E.g., plane crashes and no one survives → doesn’t usually happen unless someone was
negligent

Π must show:
(1) Inference of negligence
 Show that this injury would not usually happen unless someone was negligent
(2) Negligence attributable to Δ (Π MUST show this!! Can’t just show negligence period)
 Evidence connecting Δ w/ negligence
 Often, Π will show that Δ had exclusive control of the instrumentality which
caused the injury
(3) Π not contributorily negligent
 i.e., show that the injury was not attributable to Π himself
Effect of Res Ipsa:
(1) Does NOT mean that Π wins
(2) Result is that Π’s case survives directed verdict motion—cannot GET a directed verdict
by showing res ipsa
(3) Jury is given an inference of negligence which they may accept or reject
(4) Δ may offer evidence to rebut the inference → but does not have to
 Jury can still reject the inference even w/out rebuttal evidence from Δ

EXAM TIP → recognize a res ipsa question because the answers will deal w/ whether or not a question
should be submitted to jury, and where many different people could have been responsible

(3) Causation
Two types → need both:
(a) Actual (aka “causation in fact”)
(b) Proximate

(a) Actual Causation

 You MUST have actual causation first → if it does not exist, the lawsuit is OVER (never get to
proximate)

Three Possible Ways to Find Actual Causation:

(1) “But For” Test
 TEST → “but for” Δ’s negligent conduct, would the injury have occurred?
o If no → try one of the other two tests
o If neither of the other two tests works, then Δ is NOT liable
- E.g., Δ turns w/out signal in “pea soup” fog → negligence in failing
to signal, there is an accident, but Π couldn’t have seen the signal
anyway, so the negligence is not a “but for” cause (Π loses)

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 (2) Substantial Factor Test
 Addresses situation where either of two Δs could have been the cause
 So neither Δ alone passes the “but for” test because either Δ alone could have
caused the injury
o E.g., two fires meet and burn down a barn
 TEST → was Δ’s conduct a substantial factor in causing the injury?
o If yes → Δ is still liable

(3) Alternative Causes Test

 Addresses situation where there are 2+ negligent Δs, but uncertainty as to which
caused the injury
o E.g., two Δs negligently shoot at Π, unsure which bullet hit
 APPROACH → BOP is shifted to Δ to show that his negligence is not the actual
cause
o Π only has to show that the injury was caused by one of the Δs, doesn’t have
to prove which one

Compare → substantial factor v. alternative causes

 Substantial factor → both Δs are the cause
 Alternative causes → only one Δ is the cause, just don’t know which

WATCH OUT → for questions where Δ WAS NEGLIGENT but the injury would have occurred
anyway

(b) Proximate Causation

 This is Δ’s last shot to avoid liability → both negligent conduct (duty, breach) and actual
causation have already been shown
 Foreseeability test → proximate causation is a way for a negligent Δ who actually caused an
injury to avoid liability due to lack of foreseeability
o If event is not foresseable → NO DUTY OF CARE IS OWED
o NO DUTY to take precaution against unforeseeable events

Two Kinds of Cases:

(1) Direct Cause Case
 Uninterrupted chain of events between negligent act and injury
(2) Indirect Cause Case
 Between the negligent act and the injury, there is an intervening force which
combines w/the negligent conduct to cause the injury
 E.g., Δ allows gas to accumulate in a warehouse, lightning strikes, and warehouse
explodes

Two Easy Rules:

(1) If the RESULT was UNFORESEEABLE → Δ is NOT LIABLE!!!!!!!
 Absolutely NO exceptions on the exam!!!
 Δ wins 100% of the time when the result was unforeseeable
 Note → Acts of God are usually unforeseeable (unless, e.g., you live in an area
that gets tornadoes all the time)

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 (2) If the RESULT was FORESEEABLE → hold Δ liable
 Exception → in an indirect cause case
o If the intervening force was an unforeseeable intentional tort or crime, Δ is
not liable
- E.g., if Δ allows warehouse to fill with gas and unforeseeable bolt of
lightning hits it and it explodes → Δ is liable because the result was
foreseeable even though the intervening force was not
- BUT if the warehouse exploded due to an arsonist → this is an
unforeseeable intervening crime
o Important → the intentional tort or crime must be UNFORESEEABLE
- E.g., if Δ leaves car in high crime area w/ keys inside, after news
story that there have been many car thefts in that area, Δ is liable for
the theft because it was foreseeable that the car would be stolen

Eggshell Skull Π → it is only necessary that Δ be able to foresee an injury, NOT the extent of the injury
 So when, due to Π’s condition, an injury is far greater than Δ anticipated, Δ is still liable for the
whole injury

(4) Damages
Requirement → Π must prove actual harm or injury

Types of Damages Recoverable

 Personal injury → Π is compensated for all damages (past, present, prospective), including fair
compensation for meds, lost earnings, pain & suffering, etc.
 Property damage → either the cost of repair or the FMV if property is destroyed
o Note → you take Π’s property as you find it; so if they own a chevy, you pay for a chevy,
if they own a jag, you pay for the jag
 Punitive damages → recoverable if Δ’s conduct was wanton & willful, reckless, or malicious
 NO NOMINAL DAMAGES AVAILABLE

Duty to Mitigate → Π has a duty to take reasonable steps to mitigate damages (e.g., seek treatment for
injury)

Collateral Source Rule → amount of damages awarded is NOT reduced due to benefits received by Π
from other sources (e.g., insurance)

DEFENSES TO NEGLIGENCE
Contributory Negligence (aka “Traditional Common Law Tort Defense”)
Two Types:

(1) Knowing Contributory Negligence (aka “Implied Assumption of Risk”)

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 o If Π is knowingly contributorily negligent (e.g., races out into street in heavy traffic), Π
will NEVER recover
o For two reasons:
 Due to contributory negligence
 Due to implied assumption of the risk (defined below)
EXAM TIP → recognize the fact pattern where BOTH contributory
negligence AND implied assumption of risk exist (i.e., where Π
unreasonably and voluntarily takes on a known risk)
- In this type of fact pattern → you have to write about BOTH

(2) Unknowing Contributory Negligence

o If Π is unknowingly contributorily negligent (e.g., walks into street while daydreaming…
negligent but not purposefully), Π will NEVER recover
o For only ONE reason:
 Due to contributory negligence

NOTE → Π’s negligence must have contributed to the incident (e.g., motorcyclist driving drunk who is
accidentally shot by Δ…motorcyclist’s negligence in driving drunk did NOT create a foreseeable risk of
being shot), so Π’s negligence would not bar recovery

EXAM TIP → while Π loses the lawsuit in both instances, you need to discuss implied assumption of
risk when there is knowing contributory negligence; also distinguishing between knowing and unknowing
is important re: strict liability (below)

Last Clear Chance Doctrine → contributorily negligent Π claims that, though she was negligent, Δ still
had one last clear chance to avoid the accident…thus, contributory negligence should be disregarded as a
defense

EXAM TIP → avoid the answer choice that reads “the last clear chance doctrine is a good defense”
 It’s not a defense!!!
 It is merely Π’s argument to counter Δ’s defense of contributory negligence

Assumption of Risk
TEST
(1) Π must have known of the risk
(2) Π voluntarily assumed it
~ it is irrelevant if Π’s assumption is unreasonable

Express assumption of risk

 Knowledge and voluntary assumption are laid out in an express agreement (e.g.,
contract)

Implied assumption of risk:

 Knowledge → knowledge may be implied where the risk is one that an average
person would clearly appreciate (e.g., running out into traffic)
 Voluntary assumption → EXCEPTIONS…voluntary assumption will not be
presumed when:
- No viable alternative → there is no available alternative (e.g., only

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 exit from building is unsafe)
- Emergency → e.g., Π jumps in front of negligently driven car to save
kid (does not have to be Π’s own emergency, can be helping others)

Comparative Negligence
Two Types of Comparative Negligence States: NOTE → if exam
does not specify,
(1) Pure Comparative Negligence assume you’re in a
o Π can recover no matter how great Π’s negligence is pure comparative
negligence state
(2) Partial Comparative Negligence
o Π’s recovery is barred if his negligence passes the threshold level → 49% in most states
o Recovery REDUCED by amount of fault

NOTE → Π’s negligence must have contributed to the incident (e.g., motorcyclist driving drunk who is
accidentally shot by Δ…motorcyclist’s negligence in driving drunk did NOT create a foreseeable risk of
being shot), so Π’s negligence would not reduce recovery

Contributory v. Comparative Negligence States

Contributory Negligence States Comparative Negligence States

Π is partially negligent Π recovers NOTHING!!! Π’s recovery is REDUCED

-----------------------
 Pure → Π can recover even if
more negligent than Δ
-e.g., if Π is 90% responsible,
can still recover 10%
-----------------------
 Partial → Π recovers only if Δ
was MORE negligent than Π
- e.g., if Δ was at least 51%
negligent
Assumption of Risk
Defense Defense IS available Defense is NOT available

rationale → comparative negligence

states have been cleaning up their law
to get rid of assumption of risk since
it’s just a different way to get the
same result

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Last Clear Chance
Doctrine Defense IS available Defense is NOT available

Rationale → judges in these states Rationale → don’t need to help Π out

want a way to help Π recover in these states
something, since the rule is so harsh
to a Π who is even a little bit
negligent

Δ’s tortious conduct

was RECKLESS Contributory negligence is NOT a Contributory negligence will
good defense OFFSET the amount of the award

Rationale → don’t want to deny Π Rationale → if Δ is guilty of reckless

recovery because Δ was so reckless conduct, it will be reflected in his
- so Π will recover percentage of responsibility

STRICT LIABILITY IN TORT

Strict Liability
Prima Facie Case
(1) ABSOLUTE DUTY TO MAKE SAFE
(2) Breach
(3) Causation
(4) Damage
SL ONLY APPLIES TO: products, animals, ultra-hazardous activities

Defenses → depends on whether in a contributory or comparative negligence state

Contributory Negligence State Comparative Negligence State

 Knowing contributory negligence is a  Knowing AND unknowing contributory

COMPLETE defense negligence can be used to reduce Π’s
o Π recovers nothing recovery
 Unknowing contributory negligence is o Reduction will depend on
NO defense whether state is “pure” or
o Π recovers “partial”

HYPO: Machine sold to Π; manual said that it had to be warmed up for 3 min. before used
o Scenario 1: Π read the manual, but didn’t warm it up anyway
 This is knowing contributory negligence AND implied assumption of risk
o Scenario 2: Π never read manual, didn’t warm it up
 This is unknowing contributory negligence, Π should have read manual

Animals

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  Domestic animals → owner is NOT strictly liable for injuries, unless he knew that the animal was
particularly dangerous (i.e., “one free bite”)
o Trespassing animal → owner is SL for damage if it was foreseeable that the animal
would trespass and cause damage (e.g., livestock, animals likely to roam)
 Wild or dangerous animals → owner is strictly liable for damage/harm caused by wild or
dangerous (e.g., prize bull) animals
o Irrelevant whether animal has been defanged, de-venomed, etc.—still a wild animal
 Even if animal isn’t one that most would be afraid of (e.g., cute little monkey)
 Apparently, honeybees are not wild animals
o Includes liability for harm done while fleeing from the animal!

TRESPASSERS → SL is NOT imposed re: undiscovered trespassers (even if anticipated!)

unless the owner was negligent (e.g., knew of trespassers and failed to warn)

Ultra-hazardous Activities → activities which pose substantial risk of serious harm no matter how much
care is exercised (not commonly-engaged in activity)
 DOES NOT MATTER HOW CAREFUL Δ IS!!!
 If engaged in ultra-hazardous activity, Δ is totally liable for any injuries caused
 What is ultra hazardous? → whether something will be categorized as “ultra-hazardous” is a
question of law for court
(1) Risk of serious harm to persons/property
(2) Not capable of being performed w/out the risk
(3) Not commonly engaged in by persons in community
 Examples:
o Fireworks are NOT UH
o Oil refinery is NOT UH

EXAM TIP → avoid answer which refers to Δ’s conduct; conduct has nothing to do w/ strict liability

PRODUCTS LIABILITY
Products Liability
Products Liability → Π must show:

(1) Existence of a DEFECT when the product left Δ’s control → “unreasonably dangerous”

Types of defects:
(b) Manufacturing defect → product is different and more dangerous than all
others
(c) Design defect → all products are defective due to poor design
 Less dangerous modification/alternative was economically feasible → Π
must show this for design defects
(d) Inadequate warning → product must have clear/complete warning re: any
dangers that may not be apparent to users (e.g., possible allergic reaction)

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 Negligence Strict Liability

Who can sue? Any foreseeable Π

Misuse → courts require suppliers to anticipate reasonably
foreseeable uses, even if misuses
o If unforeseeable and unintended use → no
liability
o Scientifically unknowable risks → where risk is
not apparent until after product is on the market,
most common re: drugs, courts have generally
refused to find these “unreasonably dangerous”
where it was impossible to anticipate the problem,
make product safer, or provide warning

Who can be sued? Anyone who knew or should Any commercial supplier (i.e.,
have known of the danger merchants)
- e.g., commercial supplier, or - not casual seller (garage sale)
someone who knew of defect
and didn’t tell you

Breach Negligent conduct that results in The supplying of a defective

supplying a defective product product—“unreasonably
(see above) dangerous”

Causation Res ipsa loquitor is available - Must put product into stream
of commerce
- No substantial alteration

Damages Personal injury or property damage

(no economic loss)

Exam Favorite:

 Product use incidental to performance of services

o Strict liability is imposed ONLY on one who supplies a product, NOT a service
 So the strict liability theories are UNAVAILABLE
o Hypo → doc uses defective blood for transfusion after surgery; this is a use of a product
(blood) incidental to a service (surgery)
 So can’t use strict liability → but CAN still recover for FAULT (e.g., negligence)

NUISANCE

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Nuisance
Public v. Private

 Private → substantial, unreasonable interferences w/ one’s usage and enjoyment of land

~look for these words in the answer
~substantial → must be offensive, inconvenient, or annoying to average person
in the community (not Π’s hypersensitivity)

o Possessor of property (or Π w/ right to possession) is the only one who can bring a
private nuisance suit (note: what matters is possession, not ownership)
o Conduct consistent with zoning requirements is HIGHLY persuasive that the use is NOT
a nuisance

 Public → act which unreasonably interferes w/ health, safety, or property rights of community
o Unique injury → can bring suit only if you can show that you suffered an injury that is
unique and different from that suffered by the public

Standard → conduct must be objectionable to the AVERAGE PERSON (objective standard)

 E.g., if Δ plants a rose garden, Π cannot bring private nuisance suit due to his allergies since the
average person would not find a rose garden objectionable

Balancing Test (exam favorite)

 Court will balance Π’s and Δ’s interests in enjoying their own property
o E.g., Π claims Δ’s activity is a nuisance, Δ claims the activity is necessary for him to
enjoy his own property

EXAM TIP → winning answer usually says something about balancing interests
EXAM TIP → AVOID the answer that says “Π cannot come to the nuisance and maintain the lawsuit”
 This is NOT true!!!
 Even if Π moves in next door to Δ knowing of the nuisance, Π can still sue

GENERAL CONSIDERATIONS FOR ALL TORTS

Vicarious Liability
Vicarious Liability → liability for another’s tort

 Respondeat Superior → employers are liable for torts of employees committed w/in the scope of
employment
o Not vicariously liable for acts outside the scope
o NOT vicariously liable for torts of independent contractors
o Intentional torts are generally NOT w/in the scope of employment
o Exceptions:
(a) When force is authorized (e.g., bouncer)
(b) Friction is generated by this type of employment (e.g., bill collector)

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 (c) Employee is trying to further employee’s business (e.g., removing rowdy
customers)
o NOTE → employer may be liable for OWN negligence in HIRING the employee
 If employer has reason to be on notice that the actions that resulted in harm
were likely to occur
o E.g., if REASONABLE EMPLOYER would have discovered prior
convictions, violent behavior, etc.
This will be covered more in agency law

 Car Owners or Drivers → generally, car owners are NOT vicariously liable for the torts of other
people who drive their cars
o Exceptions in some jurisdictions (exam answer will specify)
(a) Family car doctrine → household members using the car with permission
(b) Permissive use doctrine → anyone using with permission

 Parents & children→ generally, parents are NOT vicariously liable for children’s torts
o Although parents CAN be liable for their own negligence (e.g., for not taking precautions
if they know their child is violent or preventing child from running loose)
o Exceptions:
 Some states, by statute, make parents liable for willful and intentional torts of
their minor children up to a certain dollar amount (i.e., cap on parental liability)
o NOTE → parents’ negligence is NOT imputed to the child, so if parents were negligent
in a contributory negligence state, doesn’t mean child can’t recover

EXAM TIP → be able to recognize the difference between when Δ is vicariously liable and when Δ is
liable for own negligence
 Hypo → Δ lends drunk guy his car, Δ is not liable for drunk guy’s negligence; but Δ is negligent
himself for giving keys to a drunk guy

Issues re: Multiple Δs

Releases → a release is a surrender of Π’s cause of action to a party to whom the release is given
 A release does not release OTHER tortfeasors unless it does so expressly

Joint & Several Liability

 When multiple acts cause an indivisible injury, each Δ is potentially liable for the ENTIRE
judgment amount
EXAM TIP → on exam, assume that joint tortfeasors are jointly and severally liable
 If problem says that J&S has been abolished → means that Δ only pays for the amount he’s
responsible for

Contribution & Indemnity

 Contribution → where one joint-tortfeasor was required to pay more than his share of damages,
he has a claim against the other tortfeasors; distribution of loss
o Can sue to make sure responsibility is apportioned among those who are at fault

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 o Other tortfeasors will have to contribute equal amounts
 Comparative Contribution (majority rule)
o Same idea as above, except that Δs will contribute in proportion to their relative fault
o As opposed to splitting it up evenly
 Indemnification → involves shifting the entire loss between or among tortfeasors
o This is available when:
(a) One Δ is way more responsible
(b) Vicarious liability → can get it back from person who actually committed tort
(c) Strict liability in products cases → supplier who is sued can get it back from
manufacturer

EXAM TIP → under joint & several liability, the entire amount is owed to Π; contribution and
indemnification deal only with how much of that amount each Δ owes
 Contribution and indemnification actions happen after payment is made to Π

Derivative Actions → Survival & Wrongful Death

Survival & Wrongful Death Actions (little to test here)
 Just know that these are derivative recoveries
 So Π will NEVER stand in any better of a position than decedent would have if he’d lived
o i.e., if decedent was contributorily negligent → Π suing in survival or wrongful death
will get no recovery in a contributory negligence state and reduced recovery in a
comparative negligence state
 Parents’ action for child’s medical expenses → is also a derivative action

Tort Immunities
Intra-family → no longer exists
Charitable → no longer exists
Governmental → no longer exists at higher govt. levels, but DOES exist at lower levels
 This will be statutory in nature
 Know this → where there IS govt. immunity, it is applicable ONLY to govt. functions, NOT
proprietary functions
o Ask → would a private business normally perform this function?
 If yes → no govt. immunity
 If no → govt. immunity
o E.g., operation of a city parking lot for profit → private businesses operate parking lots
too, so no immunity; but there would be immunity re: police or fire dept. activities

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