1.

Intentional Torts (including IIMD)

Prima Facie Case - In General
! Act – Voluntary act by D. No act, no liability unless D had a duty to act.
! Intent (RS2 8a) -
o all consequences which an actor desires to bring about (Brantley, horses jump fence)
o OR knows are “substantially certain” to result (Dow Chemical, agent orange)
! May transfer intent –D is liable if the injury is the direct, natural and probable
consequence of the wrongful act (Singer v. Marx – boy throwing rocks)
! Everyone is liable for intentional torts (elderly, minors, drunks, insane)
! Causation – Established where D’s conduct is a substantial factor in bringing injury.
! Damages – P’s injuries; No actual damages except below. Can get nominal, compensatory,
and/or punitives (if acted with malice)

Types of Intentional Torts

Assault
! Intentionally putting another in imminent apprehension of harmful OR offensive contact
o Imminent apprehension = no significant delay and know about attack
o Reasonable man standard
! Transferred intent applies.
! Mere words do not constitute assault.

Battery
! Intentional AND unpermitted contact which is harmful OR offensive (to reasonable man)
! Battery = assault which results in harmful contact
! Transferred intent applies
! Eggshell skull rule – Even if unpredictable damages happen, D is liable for all damages

Intentional Infliction of Emotional Distress

! RS2 §46 – Extreme and outrageous conduct that either intentionally or recklessly causes
severe emotional distress. Liable for physical injuries but don’t need physical harm.
! Common carriers and innkeepers have a higher standard (Texas & Pacific Railway)
! Bystander can get if D knew bystander was present and a relative (Star v. Rabello.)
! Some states allow punitive damages in addition to compensation if emotional distress is severe.
! NO transferred intent and MUST show actual damages (can be emotional.)
! See defamation below in relation to First Amendment Defenses for IIMD. (i.e. Falwell)

Torts to Property = trespass to chattels, conversion = actual damages needed; trespass to land

Defenses
! Consent – Voluntary and informed words or conduct that shows P assented to tortious act.
o Not a defense if activity is illegal.
! Self-Defense - can use reasonable force to protect oneself against occurring or imminent attack
o reasonably proportionate force to situation (Lane – young man hits old man in defense)
! Defense of Property – reasonable force used to prevent tort against property
o no deadly force allowed (Brown – kids steal melons and D shoots kid)
! Necessity
o Public necessity – takings for use; destruction in combat; destruction in emergencies
o Private necessity – Complete defense BUT if actual damages, compensate injury.
 2. Negligence
Prima Facie Case
! Fault – an act of negligence = replaces duty analysis;
! Causation – must show it is the cause in fact + proximate cause of the injury
! Damages – injury

Fault
Failure of Applicable Standard of Care = Fault
! Reasonable man standard – objective standard - “presumed” to know certain facts of common
experience and not create unreasonable risks for other people (including infirm – i.e. blind)
o Minors – Must act as a reasonable “child” of his age except when in an “adult activity”
o Mentally deficient – must act as a reasonable man; not taken into account
o Physically deficient – taken into account
o Emergencies – Has a duty to act as a reasonable man under similar emergency situation
! Professional Standard of Care – i.e. lawyers, doctors
! Custom of the Industry – BUT, custom may not always be a good std, and although admissible
may not be conclusive (Helling – glaucoma); custom can determine medical malpractice
! Calculus of Risk – (B<PL) = If cost of taking precaution is less than likelihood + severity of
harm, law will impose duty on D to take reasonable care. (Carroll Towing – keep bargee on.)
o Risk must be both foreseeable and unreasonable. (Pitre – boy clocked by a baseball)
! Standard Imposed by Statute – Violation of a statute is negligence per se if (1) the injuries
were caused by the statutory violation and (2) injuries were the type statute sought to protect.
! Owners of Land
o Trespasser – No permission to be on land
! Liable if no warn of dangerous artificial activities and attractive nuisances
o Licensees – People who enter with owner’s consent for limited purpose
! Liable if does not warn/make safe concealed dangerous conditions
• No duty to inspect for defects
o Invitees – People who enter with owner’s consent
! Types
• Business Invitees – business dealings
• Public invitees – opened to public (Lunney v. Post) - To determine look
at (1) Economic benefit, (2) Invitation, or (3) Relevant circumstances
! Liable if doesn’t keep property safe (duty to inspect for dangerous conditions)
! BUT there is no general legal duty to aid (unless tortfeasor or common carrier/innkeeper.)
o May be liable for failure to aid identifiable victim and victim doesn’t know of threat.
! If volunteer rescuer, must perform act with due care and can’t leave P in a worse position.
! Negligent Infliction of Emotional Distress – If nuclear family bystander can get if foreseeable
BUT most cts require that there was a physical injury (unlike IIMD)

Res Ipsa Loquitur = Fault (REMEMBER – RIL ONLY proves fault – must still show causation.)
! If have no conclusive evidence that D violated standard of care (above), P can prove RIL:
o accident couldn’t naturally or reasonably occur without D’s negligence
o D had exclusive control of instrumentality
o P or third party did not contribute to injury
! D can rebut a RIL inference by proving by uncontradicted evidence that occurrence was:
o caused by some outside agency over which he had no control OR
o occurrence was one which could occur outside his negligence
 Causation
Cause in Fact (Actual Cause)
! “But For” Test – Subjective test – Injury would not have happened “but for” D’s act.
! Substantial Factor Test – Infer event was a “substantial factor” even if no hard evidence.
o Eliminating possibilities can elevate low probability – (Daly - woman falls, gets cancer)
o Can be established if P has shown there are several possible causes each of which alone
could cause same injury but P doesn’t know which cause actually created injury.
(Summers v. Tice – P was shot by two hunters during quail hunt)
o Negligent acts may be substantial cause if they result in loss of a chance to avoid a risk
(Herskovits – D failed to diagnose P’s lung cancer initially)
Proximate Cause
! Foreseeability Test (Cardozo approach in Palsgraf)
o Liable for all injuries reasonably foreseeable (natural and probable) from faulty act.
o Summary of Evolution:
! Polemis (Plank falls and sparks fly causing fire) - Foreseeability of these injuries
doesn’t matter if foresee some injury.
! Palsgraf – Liable if could reasonably foresee act to cause these injuries
! Wagon Mound 1 (Ship drops oil into water and fire starts even though fire was
not foreseeable) – Liable if could reasonably foresee act to cause these injuries.
• Palsgraf & Wagon Mound 1 – Reasonable foreseeability determines both
fault and causation
• Effect of Wagon Mound 1 – If an unforeseeable injury is of same type as
a foreseeable injury, both are considered foreseeable.
! Kinsman Transit (Crazy ice/boat case that dams up river) – Damages are
foreseeable if they are within the “area of hazard”
! Wagon Mound 2 – Same as Wagon Mound 1 but say a reasonable man should
weigh effect of ignoring risk against difficulty of eliminating risk (calculus of
risk – should this case be under fault?)
! Directness Test (Andrews approach in Palsgraf)
o D is liable for all injuries, regardless of whether injured party was a reasonably
foreseeable P, that directly flow from D’s action (all a question of “expediency.”)
o Not used because meshes public policy and causation AND causation should be a
strictly logical, objective determination.

Intervening Act – If intervening act was a foreseeable consequence of D’s breach, both D and
intervening tortfeasor are jointly liable (i.e. Kinsman Transit.)

Supervening Intervening Act –

! Intervening act produces unforeseeable injury = superseding cause; D is not liable.
! BUT, if 2nd act is foreseeable, the intervening third party act will not excuse first D’s liability.

Damages
! Personal Injury – all past, present, and future personal injury no matter how unforeseeable
! Property damages – FMV of property
! Punitives – P may get punitives if D’s conduct was wanton and willful, reckless or malicious
! Nonrecoverable damages – Lost interest and attorney’s fees
! Duty to mitigate – P must take reasonable steps to mitigate (i.e. seek medical treatment)
! Collateral Source Rule – P’s damages is not reduced by comp received from insurance.
 Affirmative Defenses
Contributory Negligence (NC)
! P is contributorily negligent if his conduct was a contributing, foreseeable cause of injury.
! COMPLETE BAR to P’s recovery. (Butterfield v. Forrester –P did not see D’s obstruction.)
! Last Clear Chance Doctrine – P’s contributory negligence is NOT a bar if D had last clear
chance to avoid the accident.

Comparative Negligence
! Pure comparative negligence – P’s fault reduces damages based upon percentage of fault
o Problem - favors party who has incurred most damages regardless of amt of fault
! Partial comparative negligence – P may not recover if more than 50% at fault.
o Problem – draws an arbitrary line
! No last clear chance rule

Assumption of Risk
! Express assumption of risk [under K]
! Implied assumption of risk – P recognized and understood the risk and knowingly and
voluntarily encountered the risk
o “no-duty” rule applies only to risks which are “common, frequent, and expected.”
[Being hit with a baseball in the stadium

No Mitigation of Damages
! Seat Belt Defense – states are split on whether failure to wear a seat belt is aff. def.

Multiple Parties’ Liability

Vicarious Liability
! D is legally responsible for tortuous conduct of another who is actually at fault.
! Respondeat Superior – VL in the employment context
o Frolic and detour: Negligence of an employee will not be imputed to an employer if the
act of employee deviates significantly from course of employment
o Not extended to independent contractors or sexual torts
! Joint Enterprise – People who are doing an activity with a common purpose if each has an
equal right of control (teachers on car trip who all had a vote and get into wreck)
! Family Purpose Doctrine – Owner of a family car is liable for torts committed by family
members while driving car
! Vicariously liable party can seek indemnity (reimbursement) against D and recover damages
! “Both Ways” Test = If joint enterprise between parties, there would be imputation for vicarious
liability as a D and contributory negligence as a P.

Joint and Several Liability

! Common law – If P’s damages are NOT “distinct and separate, each negligent D is liable for
entire amount of P’s damages. Now some are moving to several liability.
! Contribution – Allow Ds who have paid more than their pro-rata share of fault to get partial
payment from other Ds. Pro-rata share of fault is based on number of Ds

Can hold Multiple D’s liable using following theories: alternative liability, concert in action,
enterprise liability, market share, “risk-contribution” theory.
 3. Strict Liability
In certain activities, D may be liable for P’s injuries, even when D is not at fault.
Prima Facie Case
! Activity must be within certain categories
! Causation – Abnormally dangerous activity was cause in fact + proximate cause (see above)
! Damages – P must either prove personal injury or property damages

Categories
! Animals
o Trespassing Livestock – owner strictly liable for foreseeable damages
o Domestic Animals - Owner not strictly liable unless animal trespasses OR if owner
knows animal is abnormally dangerous
! Abnormally Dangerous Activity (not product)
o RS2 §519 –
! Subject to liability for harm to another resulting from abnormally dangerous
activity although he has exercised utmost care to prevent the harm
! Strict liability is limited to the kind of harm that makes this activity dangerous
(Foster v. Preston Mill – blasting operations frighten mink causing killing.)
o RS2 §520 – Balance of Factors Test to Determine Abnormally Dangerous Activity
o Major activities this goes to is: blasting; transportation of gas; impoundments;
application of poisons; landfills and toxic waste; atomic energy
! Contributory negligence, comparative negligence, and assumption of risk are defenses to this

4. Derivative Actions and Fatal Injuries

Loss of Consortium –Non-Fatal Personal Injury Cases
! Actions brought by P who suffered damage because of injury to another person
! Usually can’t be brought if injured person didn’t have an action themselves
! Husband and wives get loss of consortium; usually not parents and children

Fatal Injuries – Wrongful Death and Survival Actions

! Lord Campbell’s Act – wrongful death for pecuniary (valued in monetary) loss
! Survival Statutes – Some states authorize tort action of deceased to be preserved by estate;
impute contributory negligence also
! Benefit to Survivor Statutes – Most states allow a new cause of action for survivors to collect
pecuniary loss; impute contributory negligence also
 5. Products Liability
Prima Facie Case
If a good, recovery is strict liability and/or warranty in K. If mere economic loss, only warranty.
! Strict Liability
o D manufactured product
o Product was defective [DO NOT have to show fault] and defect existed at time of sale
o Defect caused injury and damages
! Warranty in K
o Mere economic loss = when product damages itself and/or surrounding property (no
physical harm) BUT even if have physical injury, can still sue under warranty
o Prima Facie Case
! Defect existed
! Defect caused injury and damages
! Covered by express (2-313) or implied (2-314, 2-315) warranty
If a service or don’t know who made the protect (DES), recovery is negligence.
! Manufacturer negligently made defect (Fault)
! Defect caused injury and damages (overcame privity barrier)

Under Strict Liability

RS2 §402A - Special Liability of Seller of Product for Physical Harm to User or Consumer
1. If someone sells a defective product which is unreasonable dangerous (based on reasonable
man test) to the user, he is subject to liability for user’s physical harm if:
a. seller is engaged in business of selling such a product and
b. it is expected to and does reach user without substantial change in selling condition
2. Rule stated in subsection (1) applies although
a. seller has exercised all possible care and
b. user has not bought product from or entered into any contractual relation with the seller.
Manufacturing Defects
! When product departs from intended design even though all possible care was used in design.
! Use RIL ONLY IF P presents evidence by expert testimony and/or negating other causes.
! Manufacturer is not liable if P used product in an unforeseeable manner.
Design Defects
! To determine if design defect is unreasonably dangerous (unacceptably unsafe), look at:
o Consumer Expectation Test – didn’t perform as safe as ordinary customer would expect
o Feasible Alternative Test – Risk/Utility Balancing (IV catheter causes HIV)
! Unavoidably Unsafe Exception to Strict Liability - RS2 §402 comment k - No strict liability for
“products which in present state of human knowledge, are incapable of being made safe for
their intended and ordinary use… if it is a useful and desirable product.” (mostly drugs)
Warning Defects
! Warning attached to unreasonably dangerous product may be inadequate (polio vaccine case.)
! Defenses
o Prescription drugs – manufacturer is okay as long as there is a learned intermediary
o Open and Obvious Dangers – mfrs don’t have to warn if danger is open and obvious
o State of the Art Defense – If mfr does not have reasonable knowledge about a defect,
mfr is not liable for failing to warn (Lederle Labs – Declomycin discolors teeth)
o Preemption by a federal agency (i.e. FAA)
o Compliance with regulations
o P’s behavior – contributory negligence
 6. Defamation
Common Law Development -[see also Common Law Defamation Chart]
Only applies to private figures in private matters
Prima Facie Case
1. False statement
2. Published to third parties (must have intent to publish)
3. Defamatory (injurious to reputation)
4. Defamatory Statement Caused Injury/Damages

Pleading a Defamation Case

! Inducement – allege facts necessary to show defamatory statements
! Colloquium – allege facts necessary to show inducement’s statements were about him
! Innuendo – explain why defamatory statements ARE defamatory

Slander Per Se –
! assume that the statement is defamatory and causes damages (so must prove 1,2,5)
! Imputing serious morally reprehensible criminal conduct
! Allegations of loathsome or infectious disease
! Injures in respect to office or profession
! Lack of chastity to a woman

Slander Per Quod – must prove all

Libel – like slander per se

! Must show that P is identifiable from publication and publication is defamatory
! A picture or film can be actionable as libel (Burton v. Crowell – cigarette jockey)

Defenses
! Truth
! Privilege (absolute and qualified)
! Poor General Reputation

Constitutional Developments -[see also Constitutional Defamation Chart]

Only apply if in a matter of public interest, or public officials, or public figures.
Public Officials/Public Figures
! Public critics in public capacity not liable unless stmt made with actual malice (Barr v. Matteo)
! Citizen critics of public figures in official capacity not liable unless actual malice. (NY Times)
o People can become involuntary public figures. (Time, Inc. v. Firestone)
! Actual malice = Knowledge of falsity OR reckless indifference to truth or falsity
! Burden of Proof = Clear and Convincing Evidence

Private Individuals in Public Matters

! Can be liable if stmt made with some level of fault (either actual malice or negligence) AND
there is an actual injury/damages shown. (Gertz v. Welch) [no more strict liability]
! To get punitive or presumed damages MUST show actual malice.

Private Individuals in Private Matters - Go back to common law defamation (Greenmoss Builders)
 7. IIMD in Relation to Defamation
See above for IIMD generally.
! Many IIMD cases involve defamatory statements made to P and are either accompanied by
defamation OR are made in IIMD because defamation requires higher standard.
First Amendment Defenses such as freedom of speech and freedom of religion can block an IIMD
action. (i.e. Paul v. Watchtower Bible – P shunned by Jehovah Witness and ct held allowed because of
freedom of religion; Hustler v. Falwell – No actual malice b/c a joke.)

8. Privacy
False Light Cases
! Publicity which places P in a false light in the public eye
! Prima Facie Case
o Stmts are false and personally embarrassing (to reasonable man) but not defamatory
o Most states require D made it with “actual malice”
o Damages
! Punitive damages allowed if actual malice met
! Compensatory - most require actual malice; can get IIMD

Intrusion Upon P’s Seclusion or Solitude or Into his Private Affairs

! Intrusion into a private place, conversation or matter that will highly offend reasonable man
! Prima Facie Case
o No publication necessary
o Must have intent to intrude
o D’s conduct is cause in fact and proximate cause of invasion (Consent is defense)
o Damages = pure emotional distress and mental anguish are sufficient
! P must show D’s conduct was truly intrusive (public spaces are fair game)

Public Disclosure of Embarassing Private Facts

! Prima Facie Case
o Highly offensive public disclosure (reasonable man) of private facts
o No legitimate public interest in publication (not “newsworthy”)
o Fault in making the disclosure
o Causation
! Truthful publication is constitutionally protected if
o it is newsworthy (serves public interest) and
o does not reveal facts so offensive as to shock community’s notions of decency.
! To determine if something is newsworthy, consider social value of the facts published; depth of
article’s intrusion into ostensibly private affairs; extent to which party voluntarily acceded to a
position of public notoriety

Appropriation for D’s Advantage of P’s Name or Likeness

! Illegal to use person’s name or picture for trade or advertising purpose without consent
! Newsworthiness is a defense to commercial appropriation
! Damages
o for private citizens – emotional harm
o for public citizens –
! for purposes of trade – endorsement value (interference with right of publicity)
! for advertising – endorsement value + punitives if malicious