INTENTIONAL TORTS (heavy MBE)(dont draw legal inferences)

PF Case (general): 1. Volitional act by 2. Specific or general intent Specific; intended the specific result that happened General; actor knows with substantial certainty that these consequences will result Transferred; commits same or different tort against unintended person (intent is transferred) o Limited to assault, battery, false imprisonment, trespass to land or chattels. 3. Causation; result legally caused by act or something set in motion by (satisfied if substantial factor in bringing the injury)

IT to Person
1. Battery PF: 1. harmful or offensive (not permitted by person of ordinary sensitivity) contact; 2) to s person; 3) intent; AND 4) causation Tap on shoulder to ask the time of day is not offensive o Stroking hair (w/o preexisting relationship) is offensive (sexual harassment) s person extends to anything holding or touching (electric cooties) 2. Assault PF: 1) act by creating reasonable apprehension in ; 2) of immediate battery (3 intent; AND 4) causation Apprehension fear Apparent ability is sufficient (unloaded gun; only use info had at time) Words alone are not sufficient (not immediate enough), must be coupled w/ overt physical conduct o conditional words & future threats negate apprehension of immediate battery 3. False Imprisonment PF: 1) act or omission by that confines or restrains ; 2) to a bounded area; 3) intent; AND 4) causation Bounded = no reasonable means of escape that can be reasonably discovered o RATS, hidden staircase, humiliation are not reasonable o Accidentally locking in is not IT; o Restraint doesnt have to be physical (physical threats are sufficient) Awareness; must be aware of the confinement or harmed by it (mental or physical) Omission; disabled passenger needs assistance/ flight crew does nothing; (had preexisting obligation to act) DEFS o Limited privilege to detain o Consent 4. Intentional Infliction of Emotional Distress (only IT that requires damages) PF: 1) extreme and outrageous conduct by ; 2) intent or recklessness; 3) Causation; AND 4) severe emotional distress (damages). Phobia exploitation (if knew about it) is outrageous 3 indicators of outrageousness o 1. continuous or repetitive bad behavior o 2. is common carrier or innkeeper (law more willing to deem outrageous) o 3. is member of fragile class (infant, elderly) if apparent

Bystander can make pf case if close relative of injured person, was present when injury occurred and knew those facts.

IT to Property
1. Trespass to land PF; 1) Physical invasion of real property; 2) intent; And 3) Causation invasion may be by person or tangible object o floodlight is not a physical invasion only intent reqd is that got to challenged location on purpose o horse scared onto property doesnt count, nor does steering going out o dont need to know you are trespassing, just that you intended to be on that ground mistake is NOT a def RE includes surface, airspace, and subterranean space for a reasonable distance 2. Trespass to chattels (slight harm) PF: act interferes with right of possession in a chattel (personalty; Anything other than RE/bldgs); 2) intent; 3) causation; and 4) damages Two types of interference o 1. Damaging; 2. Theft 3. Conversion (greater harm) PF: act interferes with right of possession in a chattel; 2) interference so serious, warrants pay full value; 3) intent; and 4) causation you broke it you bought it (tore up entire car) seriousness: longer withholding period; more extensive use, the more likely conversion REMEDY: treat as a sale (full value rather than cost to repair)

Defenses to IT (no incapacity defs available, if cant form intent, then no tort)
1. Consent (DEF to ALL TORTS) Need valid consent (no fraud or duress)(have to have capacity) Scope of consent; no gun to a boxing match (exceeds scope of consent) Express consent: Implied consent; reasonable person would infer from custom and usage or conduct 2. Self-Defense; Defense of Others; Defense of Property Timing; must show acted w/ proper timing (threat claims to be responding to was in progress or imminent (NO REVENGE) Accuracy: must have reasonable belief that threat is genuine Shopkeeper defense: may detain if they are stealing if they act reasonably (this is an exception to the usual rule that no mistake regarding right to recapture chattels is allowed; privilege lost) Recapture of chattels; when anothers possession began lawfully, may only use peaceful means to recover chattel. Force may be used only when in hot pursuit of one wrongfully obtaining (by theft for example) o Timely demand is required FIRST, unless clearly futile or dangerous o Can only recover from wrongdoer or someone who knows the chattels were tortiously obtained Entry on land to remove chattel; o On wrongdoers land; owner privileged to enter and reclaim at a reasonable time and in a reasonable manner, AFTER first making demand for return

o on innocents land; owner privileged to enter at reasonable time and in reasonable manner when landowner is noticed of presence of the chattel and refuses to return it chattel owner liable for any damage caused by the entry o on land through owners fault; (negligently let cattle wander); NO PRIVILEGE to enter. Have to use legal process 3. Necessity (public/private) (only a def to property torts) Public: invades property in an emergency to protect community as a whole or significant group of people (ABSOLUTE DEF) Private; may interfere with property to benefit self (must pay for actual harm inflicted o Not liable for nominal or punitive damages o As long as emergency exists cannot expel from his land Ride out the storm (right of sanctuary) 4. Privilege of Arrest; Felony arrest by private citizen; felony in fact must have been committed and citz must reasonably believe person he arrests committed it. o Degree of force reasonably necessary to make the arrest; deadly force only when the suspect poses a threat of serious harm Misdemeanor arrests o Must be a breach of the peace and committed in the arresting parties presence o Degree of force reasonably necessary to make arrest; NEVER deadly force

ECONOMIC AND DIGNITARY TORTS

A. Defamation; PF: defamatory language; of or concerning (specifically IDs ); Publication by to 3dp; AND damage to reputation (asset***) If the defamation involves public concern, requires to prove falsity of the defamatory language and Fault on the part of Can be written (libel) or oral (slander) Insults and name calling not enough (people likely to conclude not an accurate statement, so no effect on reputation) ***character traits honesty, loyalty, chastity are focus of defamation on MBE Opinion; if listener would assume its based on fact, then defamatory Publication; can be negligent Damage to reputation Libel; written or printed publication o Special damages are presumed because has a degree of proof and permanence attached Slander: spoken defamation o Slander per se Adversely reflect on ones conduct in a business or profession Loathsome disease (leprosy)(VD) Guilty of a crime of moral turpitude Woman is unchaste (more than promiscuous, has a sex life) 1st Amendment concerns; see con law outline Defenses to defamation Consent: see above Truth; may prove truth as a complete defense

Absolute Privilege: remarks made by judge or lawyer during judicial proceeding; legislators in debate; fed executive officials; compelled broadcasts between spouses Qualified Privilege; need good faith and relevant to socially valuable purpose of speech o Reports of official proceedings; defense of ones actions, property, or reputation; o Qualified privilege may be lost if not made in scope of the privilege or made with malice. has bop to prove privilege exists

B. Invasion of Privacy 1. appropriation of picture or name; unauthorized use for commercial advantage (promoting product trademark, advertising, packaging) o newsworthy exception; if times runs photo, its protected 2. intrusion on affairs or seclusion; prying or intruding must be objectionable to reasonable person o needs expectation of privacy; Does nor require a trespass 3. false light; makes a widespread dissemination of falsehood about 4. public disclosure of private facts; public disclosure of private facts about ; Finances/ academic/medical information. Must be objectionable to reasonable person o newsworthy exception; o Must be genuinely confidential (not a matter of public record, etc.) C. Misrepresentation; Fraud, Deceit; silence is not enough, generally must make affirmative misrepresentation. There are no defenses to intentional misrepresentation. PF case: 1. Misrepresentation of a material fact 2. Scienter; knew or believed false or no basis for statement at time made 3. Intent to induce to act or refrain form acting in reliance upon the misrepresentation 4. Causation (actual reliance) 5. Justifiable reliance 6. Damages (actual pecuniary loss) D. Wrongful Legal proceedings; malicious prosecution; o institution of criminal proceedings (most jdxns extend to civil also) against ; o Termination in s favor, o absence of probable cause for prior proceedings (insufficient for reasonable person to believe was guilty) o improper purpose (something other than bringing a person to justice) o damages (prosecutors are immune from liability) Abuse of process o Wrongful use of process for an ulterior purpose, and o Definite act or threat against in order to accomplish an ulterior purpose E. Interference with Business relationship PF case; existence of a valid K relationship between and 3dp or valid business expectancy of ; AND knowledge of the relationship or expectancy; AND intentional interference by inducing a breach or termination of the relationship/expectancy; AND damages Privileges; conduct might be privileged where it is a proper attempt to obtain business for itself or protect its interests, particularly if dealing with prospective business (then just competition)

NEGLIGENCE
PF case: duty to conform to a specific std of conduct; breach of the duty that is the actual and foreseeable cause of injury; And damage A. Duty of Care Obligation to take risk reducing precautions (cant act according to unfettered whims) Owe NO DUTY to UNFORESEEN VICTIMS (they always lose on exam) Zone of danger (majority view/cardozo in Palsgraf) o EXCEPT: rescuers are foreseeable where negligently put himself or 3dp in peril (danger invites rescue) Children under 4 have no duty (never negligent) o Over 4 have a duty (see stds of care) Standards of care Basic: reasonably prudent person under the circumstances (objective std) o EXCEPT: superior knowledge or skill 1. Superior knowledge/skill is incorporated into std (NASCAR RACER) OR 2. advanced knowledge of the danger or risk Professionals; knowledge and skill of avg member of profession/occupation in good standing (empirical standard) Children over 4; held to std of child of like age, education, intelligence and EXPERIENCE o EXCEPT: adult activities (usually w/ motor) must conform to adult std (basic) Common carrier/Innkeeper; held to very high degree of care for patrons only Owners/occupiers of land; depends on dichotomy = 1. Activity of occupier/agent or 2. hazardous Condition that caused the injury o First, how did entrant get hurt? Then, what category entrant? (determines std owed) o 1. Undiscovered trespasser: no permission and occupier has no awareness no duty owed for activity OR conditions o 2. Discovered trespasser; (judged at time of accident and includes anticipated trespasser (frequent shortcut user, etc). activities duty: reasonably prudent condition duty: occupier must protect ONLY from: artificial, highly dangerous, conditions that are concealed from entrant but that occupier had advanced notice of restate: known, manmade deathtraps on land o 3. Licensee; (social guests). On land for own purposes, enter w/ permission onto land that is genly not open to everyone activities duty: reasonably prudent conditions duty: 2 part test, must protect from; 1. Condition is concealed from licensee 2. Condition known in advance by occupier. Restate: must protect from all known traps o 4. invitee: on land open to public or most everyone activities duty: reasonably prudent conditions duty: 2 part test, must protect from 1. Condition concealed from invitee, 2. occupier either knows or could have discovered w/ reasonable inspection. (imposes obligation to inspect restate: protect from all reasonably knowable traps on land

Duty Footnotes: Firefighters/police; genly licensees but never recover for injuries that are inherent risk of job Child trespassers; genly entitled to reasonably prudent regardless of facts o Attractive nuisance; use reasonable prudence to identify whether should have expected child trespass Satisfy conditional duties; o Fix/eliminate cond. OR give warning (converts hidden to open/obvious; cheaper) Neg per se; 2 prong class of person /class of risk test o 1. must show member of class statute seeks to protect o 2. harm occurred is kind the statute seeks to prevent o EXCEPT: 1) if compliance w/ statute more dangerous than violation, then cant use statute for std of care. 2) if compliance w/ statute impossible under circs, then dont use. Duty to act affirmatively; genly no duty to rescue, etc. EXCEPT: o 1. Preexisting relationship triggers duty to rescue (family, common carrier/innkeeper, business invitees). o 2. caused peril triggers duty to rescue (regardless of negligence or not)(never obligated to put self in peril). o 3. Assumption of duty by acting. (if you botch rescue, you are liable). NIED duty; carelessly upsetting another (no direct physical trauma, will have violated another std) o 1. also shows in zone of physical danger (near miss) o 2. must also show subsequent physical manifestation of the distress (prove injury, weed out fraud). (show heart attack, miscarriage, rash) o bystander: witnesses negligent injury to CLOSE family member (grief/horror) B. Breach of Duty; Identify specific wrongful conduct and argue why wrongful will allege that was unreasonable because . This is unreasonable because reasonable people . (essay formula) Res Ipsa Loquitur; breach doctrine used by who lacks info about what did wrong. Shows accident is one that would not normally occur w/o negligence. o Establish RIL = PF case C. Causation (actual and legal); 1. Factual causation; links breach w/ injury. will next allege that s (repeat breach) was a factual cause of his injury because but for that action, would not have been hurt. This is because if had X he would have X. rebuttal; even if X you still get hurt (also use for sanity check on causation) Multiple s problems; o 1. mingled causation (two fires start separately and join, so would fail but for test) Use substantial factor; (did each contribute in a substantial way?) (cant use not me, him defense) o 2. unascertainable cause; (hunting accident like summers v. tice) BOP shift to s to prove why each is not the actual cause of injury 2. Legal causation (proximate cause)(fair liability analysis) Direct cause: breached, followed by immediate injury (too easy to test) Indirect cause: br, does not create immediate injury, have intervening events, then full harm realized (four well settled types) o 1. intervening medical malpractice;

 liable for all results b/c foreseeable that this could happen (med is also liable) o 2. intervening negligent rescue; liable for all results b/c foreseeable that some % of rescues go bad (rescuer liable also) o 3. intervening protective/reactive forces; liable for all results b/c people will protect themselves or react in haste o 4. subsequent disease/accident; liable for all D. Damages Personal injury; compensate for all damages (past, present, prospective), both special and general (med costs, lost wages, P&S) o Foreseeability of the extent of the harm is irrelevant; Eggshell ; Have to pay even if scope unforeseeable (take em as you find em) Applies to all torts Property damage; reasonable cost of repair unless nearly destroyed then FMV @ accident Punitive: only for wanton, willful, reckless, or malicious conduct Non-recoverable; interest from date of PI and attorney fees Collateral source rule: dont reduce recovery if also being paid benefits (insurance etc) Duty to mitigate; must take reasonable steps and seek appropriate treatment E. Defenses to Negligence Traditional C/L defenses = contribution and assumption of risk (bars recovery) o Last clear chance doctrine (exception to contributory negligence recovery bar) can recover despite contributory negligence b/c the had the last clear chance to avoid the accident but failed to do so (last clear chance is rebuttal to contributory negligence) Modern doctrine = Comparative Negligence (not a complete bar to recovery) o Weigh and compare fault and assign a number. recovery reduced based on the number o Modified or partial comparative; if negligence > 49%, then gets nothing (majority rule) o Pure comparative negligence states; allow recovery no matter how great the s negligence o Modern doctrine abolishes last clear chance and implied assumption of the risk. Assumption of the risk; must have known of the risk, voluntarily proceeded in the face of the risk. Can be express or implied and is NOT a defense to IT

STRICT LIABILITY
A. Animals 1. Domesticated; no SL unless knowledge of vicious propensities o it happened before (1st bite might be free) 2. Trespassing Cattle; SL (because they trample or eat crops) 3. Wild Animals; SL B. Ultra hazardous Activities cant be made safe, posses risk of severe harm, AND uncommon where conducted (context) o MBE: explosives, biochem agents, nuclear energy/radiation C. Products Liability; NOTE: There are 5 theories of liability that may use:

Intent (intended consequences or knew substantially certain to occur) (rarely used, b/c really a battery) Negligence Strict liability Implied warranties of merchantability and fitness for particular purpose, AND Representation theories (express warranty and misrepresentation) 4 elements must show for strict liability 1. merchant (ordinarily deals in goods of the kind) (not casual seller or svc provider) 2. product defect o mfg defect: product differs from all rest (anomaly) that makes it more dangerous than consumers expect o design defect; hypothetical alternative design meets; 1) safer, 2) economical, 3) practical cribs example o Inadequate warnings; product info (warnings and instructions) are really part of design w/ warning product is safer, more practical, and economical than w/o warning must be clear/understandable/prominent to avoid liability 3. demonstrate defect existed when product left hands (mfg only) o eliminates mishandling problem (can be tough to prove) o gets presumption if ordinary distribution; has to prove otherwise 4. must be foreseeable user making foreseeable use (not limited to intended use) o misuse is NOT the legal test, foreseeable use is legal test D. SL DEFs comparative fault; same as NEGLIGENCE above (gets reduction in damages)

NUISANCE;
Private Nuisance; substantial, unreasonable degree of interference with another private individuals use or enjoyment of property that he actually possesses or to which he has a right of immediate possession. 1. Substantial interference; offensive, inconvenient, or annoying to the average person in the community. NOT substantial if merely result of hypersensitivity or specialized use of property 2. unreasonable (degree) of interference; severity of injury must outweigh utility of conduct o spiteful neighbors OR incompatible uses o liable if its activities interfere unreasonably balance right w/ right to be free of annoyance Public nuisance; act that unreasonably interferes with health, safety, or property rights of the community. Recovery by private party only if private party suffered unique damage not suffered by public at large. (Usually looking for injunction only) REMEDIES Damages, injunctive relief (when damages unavailable or inadequate), abatement by self help in private nuisance; o Self help requires notice and refusal to act, and only necessary force may be used DEFENSES Legislative authority (right to farm example) Conduct of others; no one actor is liable for all damage (only responsible for some portion that cant be apportioned Contributory negligence (only if case rests on theory of negligence) Coming to the nuisance; bought property with existing use already there.

Vicarious Liability (secondary liability)

Doctrine of RESPONDEAT SUPERIOR; master/Eer is vicariously liable for tortious acts committed by servant/Eee if in scope of employment relationship Frolic & Detour o Minor deviation from Eers business for Eees purpose is still in scope of Ement, but once Eee has departed Eers purpose completely, then out of scope of liability Eer is liable for its OWN NEGLIGENCE; dont forget to pursue primary tortfeasor (negligent supervision, negligent hiring) 1. NOT LIABLE for intentional torts (not in scope of employment). Except: bouncer (force required in Ement), bill collector (friction required in Ement). 2. Indy Kr & hiring party: no VL. Except; invitees bring VL to hiring party 3. Auto owner & driver: genly NO VL. Except; errand for O, becomes agent so VL attaches. 4. Parent/kids; NO VL. NO exceptions o but look for parent being directly liable in the facts. 5. Auto owner for driver negligence; GEN RULE; not vicariously liable, but some jdxns hold liable anyway under negligent entrustment cause of action (this is not VL, this is direct liability) 6. Dram shop act; avoids C/L rule that tavern keeper is not liable for injuries resulting from alcohol service. Modern acts apply direct liability for foreseeable risk of serving a minor or obviously intoxicated adult).

Rights of cos (compensation from contributing tortfeasors)

1. Joint and several liability; where two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor is jointly and severally liable. If the injury is divisible then each is liable only for the identifiable portion. 2. s acting in concert; where two or more s act in concert and injure , each is jointly and severally liable for the entire injury, even if the injury is divisible 3. Comparative contribution & indemnity; doctrines determine how joint tortfeasors allocate between them the damages they must pay to a successful (jury assigns ea a % and out of pocket recovers accordingly). Contribution; who pays more than his fair share of damages has claim against other cos o Not applicable to intentional torts and contribution must be originally liable to Indemnity: involves shifting the entire loss between or among tortfeasors and arises by contract, in vicarious liability situations, and under strict products liability situations. o 1. VL party can get all money back from tortfeasor they became liable for o 2. non-mfgr held SL for product gets all back from Mfg Loss of consortium (uninjured spouse has separate c/a) 1. loss of svcs. 2. loss of society (companionship) 3. lack of sex