A tort is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages. Legally, torts are called civil wrongs, as opposed to criminal ones.

Traditionally, family members were prohibited from suing each other for torts. The justification was that allowing family members to do so would lead to a breakdown of the family. Modernly, many states recognize that if family members have committed torts against each other, there often already is a breakdown in the family relationship. Thus, they no longer bar family members from suing each other.

The MBE has approximately 34 questions. Six to seven questions cover intentional torts and defenses. Thirteen to forteen questions cover with negligence. Four to five deal with strict liability. Three to four questions cover defamation. Two questions cover invasion of right to privacy. Three questions cover nuisance, and one question each covers misrepresentation and warranty.

The MBE tests fine line distinctions such as:

  • Assault and battery.
  • Criminal battery and tortuous battery.
  • Negligent and intentional infliction of emotional distress.
  • Conversion and trespass to chattel.
  • Intentional entry for trespass and negligent, or reckless entry, or accidental entries that are non-negligent or unintentional.
  • Libel and slander.
  • Qualified privilege and absolute privilege.
  • Defamation and invasion of right to privacy.
  • Intentional torts of an employee under respondeat superior.
  • Trespass to chattel and conversion.
  • Comparative negligence and contributory negligence.

I. Intentional torts. To be liable for an intentional tort the defendant must have intended to cause the consequences of their act, or there is a substantial certainty that the tort would result from the defendant’s conduct.

1. Intent. Establish there is an intent to cause harm.

  • Specific intent. Intending to bring about a specific consequence.
  • General intent. The actor knew with substantial certainty that the consequence of their act would result.
    1. Substantial certainty. The defendant knew or should have known of the consequences of their act.

Example: A World Series game is underway with packed bleachers. The Yankees are playing the Braves. A few Braves fans start doing the tomahawk. A, a Yankees fans gets angry and throws his beer in the direction of the Braves fans. The beer spills all over B. B sues A for battery. A’s defensive is that he didn’t intend to hit B with his beer, “I didn’t  even know who you are.” Will A be liable for battery? Yes, because when one throws an object in a crowded section of fans, there is a substantial certainty that someone would get hit with it.

2. Transferred intent. The defendant will be held liable where they intend tortuous conduct against one party, but the resulting harm is caused to another.

Example: A throws a rock intending to hit B, and because of bad aim, he misses and the rock hits C. A is liable to C for battery under transferred intent. Applies to:

  • Assault.
  • Battery.
  • False imprisonment.
  • Trespass to chattels.
  • Trespass to land.
  1. Everyone including minors and incompetents are capable of intent.
  2. Prima facie cases.
    1. Assault. Putting the plaintiff in imminent apprehension of an unwanted contact. They are in fact placed in apprehension.

Example: A throws a rock at B, intending to commit a battery. B sees the rock coming, is fearful it will strike him, ducks and is not hit.

  • A intended to commit a battery but was unsuccessful. A is liable for assault because B was placed in imminent apprehension that the rock was going to hit him.
  • The plaintiff must feel reasonable apprehension. Unlike battery the plaintiff must have knowledge of the act. They must be aware of the defendant’s act.
  • Causation. Show the defendant’s act is what caused the harm.
  • Example: A throws a rock at B and hits B in the back. A commits a battery, but since B did not see the rock coming, he was not placed in an imminent apprehension of the unwanted physical contact.
  • Future threats lack the required imminent element and are therefore insufficient for assault.
  • Words alone are insufficient, unless accompanied by an overt act, causing the apprehension. Words can negate apprehension. “If is wasn’t for asides time I’d stick you with this sword.

3. Battery. An unpermitted (unwanted) touching. A person is liable for battery where they intend  to cause an offensive or harmful contact with another person, and an offensive or harmful contact results. If a defendant intends to cause an assault on another, and a batter results, that person is liable for battery.

  • Specific intent. Intending to bring about a specific consequence.
  • General intent. The actor knew with substantial certainty that the consequence of their act would result.
    1. Substantial certainty. The defendant knew or should have known of the consequences of their act.

Example: A intends to cause an offensive or harmful contact with B and an offensive contact results.

Example: A defendant intends to put another person in apprehension, and an offensive contact results. A raises his hand to strike B. B ducks, resulting in no strike, but B falls in the process and hits his head on the floor. A is liable for battery, through the concept of transferred intent.

  1. Battery is an intentional tort. There is no liability for battery where the contact results from negligent, or reckless conduct.
  2. Conduct offensive to one’s personal dignity is sufficient for battery.

Example: Blowing smoke in someone’s face.

Example: Spitting on someone.

Example: Pulling a chair out from someone as they are sitting.

  1. Causation. Show the defendant’s act is what caused the harm.
  2. Protection of battery extends not only to the person, but anything that is closely connected or identified with them, such as clothing, or anything that can be grabbed from their hand.

Example: A throws a snowball and knocks a hat off the head of B. A is liable for battery.

Example: A person is walking down a street with a cane, and B comes along and kicks the cane out of their hand. B is liable for battery.

4. Tortious v. criminal battery

  • Tortious battery is an intentional tort.
  • Criminal battery is a general intent crime defined as an unlawful use of force to the person of another. CB can be committed through negligent, reckless or careless conduct. A general intent crime means a defendant does not have to be guilty of intending to cause injury to the victim.
  • Battery is a physical tort that requires contact.

5. False imprisonment. The defendant must act intending to confine the plaintiff within certain fixed boundaries. Confinement must result. The plaintiff must be aware of the confinement, or be harmed by it.

  1. Awareness exception. Infants or mentally incompetents don’t have to be aware of the confinement.

Example: A three-year-old girl is playing outside of their home, and a person drives up and says, “Hey little girl, I have some candy want to go for a ride?” The little girl is given the candy, taken for a ride, and returned unharmed. The defendant is guilty of false imprisonment even if though child was unaware of the confinement.

  • To be bound to an area there must be no reasonably discoverable means of escape.
  • Confinement may result from physical force, barriers that restrain the freedom of movement, or present threat of force.

Example: A says to B, “If you leave this room, I’m going to break your legs with this baseball bat.” If B remains in the room, fearful that they may be injured, A is liable for false imprisonment.

  1. Arrests. An unlawful, warrantless arrest is false imprisonment.
  2. Area. The area of confinement need not be small. It can be a large area.

Example: A took B on a date and drove to a remote desert. A parked his car and made a sexual advance on B. B rejected. A kicked B out of the car and B was stranded in the desert overnight. The following day a truck driver saw B’s plight and took her to the nearby town. Is A liable for false imprisonment? Yes. Stranding someone in a remote, large area such as a desert, is false imprisonment.

6. Shopkeeper’s privilege. No action for false imprisonment will lie against a shop keeper who detains a suspected shop lifter if:

  1. There are reasonable grounds a theft had occurred.
  2. The detention is conducted in a reasonable manner.
  3. The detention is limited to a reasonable period of time.

Example: A detained a suspected shoplifter, because A thought B put some garments in her bag. A took B to his office, looked through B’s bag, and did not find any stolen items. A kept B in the room for thirty minutes, against her will, while A wrote a theft report. A is liable for false imprisonment because the detention was not limited to a reasonable period of time to perform the investigation, and after performing the investigation, A refused to let B leave.

7. Intentional infliction of emotional distress. Defendant’s conduct must be extreme and outrageous. Extreme and outrageous is conduct that clearly is outside of all bounds of common decency. The plaintiff must suffer severe emotional distress. Including fright, horror, grief, humiliation, embarrassment, anger, worry and nausea. IIED can occur through intentional or reckless acts.

  • May be extreme and outrageous if the IIED is continuous, or repeated and directed toward a certain type of plaintiff, such as children, pregnant women, elderly, or supersensitive plaintiffs whose super sensitivities are known to the defendant.
  • Innkeepers and common carriers are liable for gross insults.
  • Third-party recovery applies:

Example: A directs extreme and outrageous conduct against B. C is present, witnesses the conduct, and suffers emotional distress. C may recover if:

  1. C is a close family member to B.
  2. The defendant knows or should have known of the presence of the close family member.
  3. Non-family member may not recover. To recover they must have suffered personal bodily injury.
  4. Extreme and outrageous character of the conduct may arise where the defendant has knowledge the other person is susceptible to emotional distress by reason of some physical or mental condition. Conduct may be heartless or flagrant.

Example: A wants to buy B’s farm. A knows that B is superstitious, and believes in witchcraft. A puts a fake ritualistic hex on the farm causing B to believe that B’s farm is now bewitched, and crops will no longer grow on it. B suffers severe emotional distress. A is liable to B.

Example: A knows that B is pregnant. A intentionally shoots B’s dog in front of B, knowing that B is emotionally attached to the dog. B suffers severe emotional distress, resulting in a miscarriage. A is liable to B for emotional distress, and the miscarriage.

  1. IIED and negligent infliction of emotional distress distinctions. Heavily tested on the MBE.
    1. Negligent infliction of emotional distress. Where a defendant’s negligence only causes mental disturbance without physical injury or illness, the majority courts hold there can be no recovery.
    2. Collateral source rule.  A plaintiff’s insurance recovery does not mitigate defendant’s damages. Unless it was the defendant’s insurer that paid it.
    3. Mitigation. The plaintiff has a duty to mitigate damages.

Example: The defendant causes a threat of physical impact that leads to emotional distress or directly causes severe emotional distress. The plaintiff must be within the zone of danger. There must be some physical injury.


1. Negligent transmission of a message.

Example: A telegraph company, or hospital misinforms A that a family member has died. A receives emotional distress because such grief is determined to be genuine.

2. Corpses. Erroneous reporting of a relative’s death. Mental suffering not accompanied by physical injury is liable in cases involving the mishandling of corpses.

Example: Negligent embalming or negligent shipping of a casket.

3. Mental disturbance with physical injury. Where defendant’s negligence causes an immediate injury, such as a broken leg, accompanied by mental suffering such as fright or nervousness, courts allow plaintiff to recover for mental suffering as well as the physical suffering. However, where the physical injury is not immediate but follows (a day or two) later as a result of the emotional distress, no recovery is allowed.


  1. Impact rule. Recovery is allowed if there has been an impact on the person of the plaintiff, such as a slight blow, electrical shock, or dust in the eye.
  2. Third-party recovery for negligent infliction of emotional distress applies.

Example: A’s conduct is negligently directed to B, C witnesses the negligent conduct and suffers emotional distress. May C recover for emotional distress? Where the mental disturbance, and it’s consequences are not caused by any fear for C’s own safety, but the distress is caused by witnessing peril or harm to another, such as a mother, witnessing the death of her child, recovery is denied.

  1. Exception: Zone of danger. If the third-party is personally in the zone of danger and is threatened with injury by defendant’s negligence then the plaintiff may recover for the bodily harm, and the distress that results.

Example: Mother and daughter are in the path of a vehicle, mother escapes death, but witnesses her child receive injuries, or death.

8. Trespass to land. An intentional entry or remaining onto the land in possession of another without permission, or failure to remove an object, which they are under a duty to remove.

  1. Plaintiff must have possession or a right to posses the land, which would include adverse possessors or lessees.
  2. Intent. The intent is in the entering of the land, not the trespass.
  3. Mistake of ownership of the land is no defense.
  4. Anyone in actual or constructive possession of the land can maintain an action for trespass, including lessees.
  5. Negligent or reckless entry. If a person negligently or recklessly enters land of another there is no liability unless there is damage.
  6. No liability for non-negligent or unintentional accidental injuries.

Example: A, golfer hit a ball and it ricochets off a tree onto B’s property. Is A liable for trespass? No. Entry of the ball on the land was unintentional.

  1. Trespass may be on, under, or over land.

Example: Digging a tunnel under another’s land causing damage.

Example: Firing a gun and the bullet travels over another’s land.

  1. Nuisance. Unreasonable interference with plaintiff’s use and enjoyment of their property.
  2. Defenses to trespass.
    1. Privileged entry. A party is privilege to trespass on the property of another.
    2. Private necessity. Not liable for trespass, only for harm done to the land.
    3. Public not liable for trespass, or harm to the land.

Example: A is out at sea. There is a storm warning. A docks his boat on B’s dock and as a result, B’s dock is damaged. A is not liable for trespass but is liable for the damage to the dock.

Example: A is flying an airplane, has mechanical failure and has to make an emergency landing. A is not liable for trespass because A is landing on the property to avert a private disaster. However A is liable for any damage caused to B’s crops. If this were a public entry, there would be no liability for trespass or for damages caused to the crops.

  1. Trespass to chattel. A slight intentional interference with the chattel of another. An intermeddling. The defendant is liable for the diminished value of the chattel. Damage to the property is required.

Example: A is walking their dog. B hates the dog and kicks it. That is a slight interference.

Example: A’s dog is running loose on B’s property and B decides to keep the dog overnight and returns it to A the next day. This is a slight interference with A’s ownership rights and a trespass to chattel.

  1. Conversion. An intentional interference with the chattel of another.
    1. A serious interference where the defendant exercises dominion and control over the chattel that another has ownership rights.
    2. Common law. The defendant is required to pay plaintiff for the full value of the chattel. There is a forced sale of the chattel requirement.

Example: A is walking their dog. B shoots the dogs eyes out with a BB gun. That is a serious interference, a conversion and B is liable for the full value of the dog at the time of the conversion.

  1. In determining the seriousness of the interference the courts will consider, the extent and duration of defendant’s dominion and control.

Example: B takes A’s dog without permission and decides to keep it for a month. That is a serious interference and subject B to liability for conversion.

  1. Courts look to defendant’s intent or good faith where they take someone property by mistake to determine if it is a trespass or conversion.
  2. There is no defense to mistake for conversion.
  3. Courts will also take into consideration the harm or damage done to the chattel to determine the seriousness of the interference to determine if it’s a trespass or conversion.

Example: B is out to lunch and takes A’s London Fog raincoat mistaking it to be theirs. The next day B realizes they took someone else’s coat and promptly returns it. The court will determine if it is a trespass to chattel or conversion.

  1. Defenses to intentional torts.
    1. Privilege. A defendant may not be liable for intentional torts where there is a privilege to act. A privilege may exist where the person affected by the conduct consents, or some important personal or public interest is protected by the defendant’s action.

Example: A looks out his window and sees B’s house on fire. He grabs his hose and enters his neighbor’s property to put out the fire. A’s entry onto B’s land will be privileged where he was acting in an emergency situation, even though he committed a trespass.

  1. Mistake. Generally mistake is no defense for intentional torts.

Example: A reasonably believes B is attacking them. In self-defense A hits B with his hand. A is privileged to defend themselves even though it turns out A is wrong.

Example: A law enforcement officer that believes a felony has been committed is privileged to make an arrest, even if they are mistaken.

Example: A is waiting at a bus stop and her back is turned toward B. A resembles B’s wife and he grabs her from behind and kisses her. B is liable for battery for the offensive contact and the mistake as to her identity will not provide a valid defense.

Example: Mistake of ownership of land is no defense to trespass to land.

  1. Consent. A valid defense to assault, battery, and false imprisonment. Where a plaintiff is willing for a defendant to invade their interest they have consented. To one who is willing, no wrong is done.
    1. Consent may be express, (in words) implied (by law) or apparent from plaintiff’s conduct. The consent is to the conduct not the consequences.
    2. Fraud negates consent.
    3. Consent is implied by customs and usage.
    4. Consent induced by duress is invalid.

Example: Implied. A falls and hits their head splitting it open. A is unconscious. B, a surgeon may operate to repair the damage under the premise that A would have consented had they been awake.

Example: Apparent. A football player agrees to play in a football game against B’s team. A tackles B and B is injured. It is apparent that A and B both agreed to play in a football game, therefore there is no liability for B’s injury.

Example: A and B agree to engage in a fistfight. It’s apparent from their conduct that they are agreeing to be hit by their opponent and may not thereafter recover for battery for injury as a result of that fight.

Example: Where A and B agree to a fistfight, but A exceeds the authorized consent, and hits B with brass knuckles A would be liable for battery.

Example: A and B agree to a boxing match, and as a result B is beaten to death. B’s consent to the match will defeat any action against A for wrongful death.

  1. Self defense. A person is privileged to use reasonable force (not deadly force) that is not intended to cause death or serious bodily harm to defend against harmful or offensive contact, which they reasonably believe that another is about to inflict upon them. The privilege is limited to the use of force, which is reasonably necessary to be used against the threatened injury.
    1. Deadly force. When can one use deadly force? When they are threatened with serious bodily injury or death. The amount of force used is the amount of force being used against the person being harmed.

Example: A uses fist to attack B. B may use fist to defend against A.

Example: A uses a baseball bat to attack B. B may use a baseball bat to defend against B.

Example: A uses a knife or a gun, B can use a knife or a gun with deadly force.

  1. Retaliation. One cannot self-defend against past aggressions.

Example: B attacked A with deadly force and then retreated. B may not chase after A because A cannot reasonably believe that B is still threatening them with deadly force.

  1. Retreating. Self-defense may be used even if one can safely retreat. One is not required to retreat they may stand their ground and defend themselves with reasonable force when they are threatened with bodily injury or deadly force.
  2. Mistake. Where the defendant is reasonably mistaken as to the need for self-defense the privilege still exists.
  3. Defense of others. A person is privileged to defend a third-person from harmful or offensive contact under the same circumstances as those under which he was privileged to defend themselves, as long as they reasonable believes the third-person is about to suffer bodily harm or injury and their intervention is necessary for the protection of the third-person.
    1. Minority view: The intermeddler assumes the risk that the person they are defending would be privileged to defend themselves in the same manner. A reasonable mistake is not a valid defense in a minority of states.

Example: A comes to the defense of B, the first aggressor, who is on the worse end of a beating. A strikes C, the victim, A is liable for battery to C.

  1. Injury to a third person. Where a third-person is injured in defending themselves there is no liability absent some form of negligence.

Example: A intending to shoot B accidentally shoots C. There is no liability absent some form of negligence.

  1. Defense of property. Only reasonable force is allowed in the defense of property. A person may never use deadly force to defend property. One may not use spring guns, or dangerous traps to protect property unless there is a threat to their own personal safety.
  2. Recapture of chattels.  Reasonable force is allowed where the taking is wrongful. A person may use reasonable force to regain their personal property from the other who tortiously took the chattel, by force, duress or fraud. If the original taking of the property was rightful, peaceful means to recapture the chattel is required. Determine whether the original taking was wrongful, then reasonable force is allowed.
  3. Bailment or condition sales. If the original taking was rightful, only peaceful means may be used to recapture or take the chattel.

Example: A gave their car to valet to be parked. When she returned, the valet refused to give the car back. She may only use peaceful means to retake the car and may not use force to retake it

  1. Forcible entry on land. An owner or possessor of land may forcibly enter onto the land where another has wrongfully entered onto or remained onto the property.

Example: A is a squatter on land and built a fence around it to keep O, owner out. O may break through the fence, and forcibly enter onto the land regain possession of their property.

  1. Necessity.
    1. Public. A person may enter onto land to avert an imminent public disaster. An absolute defense to trespass and to any damage caused to the property.
    2. Private. A person will be liable for damages for any harm caused to the property.
    3. Where the danger affects the entire community or where the public interest is involved then that interest serves as a complete justification to the defendant who acts to avert the peril to the community.

Example: A, dynamites a house to stop the spread of a fire that threatens and entire town.

Example: A, shoots a mad dog that is roaming city streets.

  1. Where no public interest in involved but the defendant acts to protect a private interest such as their own property the privilege is more limited.

Example: To avoid a storm, A docks their boat on B’s dock and damages it. A is not liable for trespass, but is liable for the damage.

  1. Legal process.
    1. Privilege of arrest.
      1. Misdemeanor.
        1. Privilege exists only for breach of the peace
        2. It must happen in front of the defendant.
      2. Felony.
        1. Police officer arrests. The defendant must believe a felony had been committed.
        2. They must reasonably believe the person arrested is the one that committed the crime.
        3. The degree of force is what is reasonable to make that arrest. This includes the use of deadly force when the suspect poses the threat of serious harm.
        4. Private citizen arrests.
    2. Arrest with a warrant.
      1. An arrest made under a warrant is privileged if the person arrested is sufficiently named in the warrant, or even if they are not named in the warrant has knowingly caused the actor to believe him to be so.
      2. An arrest is privileged if the officer reasonably believes the arrestee is the person named in the warrant.

Example: Hector poses as Osama Bin Laden, and tells everyone he meets he’s Osama. He wears a turban and has a long beard and hides in his house with the curtains drawn. If the FBI arrests Hector believing he’s Osama the arrest is privileged.

  1. Arrest without a warrant. An officer or a private citizen may arrest without a warrant to prevent a felony or a breach of the peace, which has been committed in their presence.
    1. If no felony has been committed an officer may still arrest without legal process, without a warrant if they have information, which affords reasonable grounds that a felony has been committed, and they have the right criminal.
    2. The burden is on the officer to show they have reasonable grounds and not mere suspicion unsupported by information or other evidence.
    3. The private person may arrest if a felony has in fact been committed. However, if no felony has been committed then the private citizen takes full risk and will be held liable for false arrest, and false imprisonment.
    4. Discipline. Includes hitting children.
      1. A parent is privileged to use reasonable force necessary for their child’s property training, control or education.
      2. Teachers are privileged to apply reasonable force for purposes of controlling, training, or educating a child.
  1. II. Defamation. Privacy or business torts.
  2. Prima facie defamation. To establish a prima facie defamation case at common law there must be defamatory language intended to adversely affect one’s reputation.
    1. Statements of opinion are not actionable.
    2. There must be publication. Defamatory language must be communicated to someone other than the person defamed.
    3. If a defamatory statement is made only to the plaintiff and not communicated to a third person then there is no publication and no defamation.
    4. Doctrines of inducement or innuendo. If the statement is not defamatory on its face the plaintiff may plead additional facts to establish defamatory meaning by innuendo.
    5. Any living person may be defamed. Defamation of deceased persons are not actionable.
    6. Of or concerning the plaintiff. The plaintiff must establish that a reasonable reader, listener or viewer would understand that the defamatory statement referred to the plaintiff.
    7. Colloquial. If the statement does not refer to the plaintiff on its face, extrinsic evidence may be offered to establish that that statement refers to the plaintiff.
    8. Who is liable for publication?
      1. Primary publishers such as newspapers, magazines and TV stations are held as liable as the author or speaker.
      2. Every repetition of a defamatory statement is actionable.
      3. One who repeats a defamatory statement is as liable as the publisher.
    9. Damage to the plaintiff’s reputation. The type of damages a plaintiff must prove depends on the type of defamation.
      1. Liable. Written or printed publication of the defamatory statement. Plaintiff need not prove special damages because general damages are presumed.
      2. Slander. Spoken or oral defamation. Plaintiff must plead special damages. This means plaintiff must have suffered some kind of pecuniary loss in order to recover.
      3. Slander per se. Damage to the plaintiff’s reputation is presumed and there is no need to prove special damages. There are four categories of slander per se. Where damages to the plaintiff is presumed.
        1. Unchastely to a woman.
        2. Loathsome disease.
        3. Improper conduct in ones business, trade or profession.
        4. False accusation of a crime or guilty of an offense involving moral turpitude.
      4. If the defamation involves a matter of public concern the constitution also requires:
        1. Falsity of the statement.
        2. Fault on the part of the defendant.
        3. Distinguish public officials, public figures from private persons.
          1. New York Times v. Sullivan, 376 U.S. 254 (1964).
            1. Public officials. Public officials and public figures must prove malice to recover for defamation. Malice is not ill will or spite, its knowledge of the falsity or reckless disregard of the truth in the publication.
    10. Gertz v. Welch, 418 U.S. 323 (1974).
      1. Private persons. A public figure is someone who has achieved fame or notoriety, such as a professional athlete or a politician. A private person only needs to show negligence.
    11. Distinction between slander and liable.
      1. Look at the permanency in the area of dissemination.
      2. Radio and TV are treated as liable because they are sufficiently permanent and broadly disseminated.
      3. Modernly even adlib defamation broadcast is viewed as liable.
    12. Defenses to defamation.
      1. Consent is a complete defense.
      2. Truth is a complete defense.
      3. Absolute privilege to make defamatory statements in judicial proceedings, executive proceedings, and in legislative proceedings as protected under the speech and debate clause.
      4. Qualified privilege to make defamatory statements in the public interest or in the interest of others.

Example: A prospective employer contacts a former employer and says, “I am thinking of hiring Mr. A. Since he worked for you for many years would you recommend him?” The former employer says, “I wouldn’t hire him, he’s a thief.” As long as the former employer reasonably believes the information to be true then he has a qualified privilege to provide that information in the interest of others. On the other hand if the former employer is acting with malice, knowledge of the falsity or reckless disregard for the truth then he can be held liable for defamation.

  1. Invasion of right to privacy. Applies to living people only and does not apply to corporations. Don’t confuse defamation with the tort of invasion of right to privacy. The tort of invasion of privacy is not a single cause of action, but four distinct causes of action. Essays. It is important to distinguish between defamation and invasion of the right to privacy.
    1. Misappropriation. One who appropriates plaintiff’s name or likeness for defendant’s own commercial advantage without authorization. Liability is generally limited to advertisements and promotions of products or services.
    2. False light. Publication of facts that place a plaintiff in a false light.
      1. Where the defendant attributes to the plaintiff views that he does not hold, or actions that he does not take.
      2. The false light must be something objectionable to the reasonable person under the circumstances.
      3. There must be publicity or publication.
      4. Malice must be proven.
    3. Public disclosure of private facts by the defendant about the plaintiff. One who publicizes a private life matter of another is subject to liability where that matter would be highly offensive to a reasonable person and is not a legitimate public concern.
      1. Liability attaches even if the public statements were true.
      2. Truth is no defense when dealing with publication of private facts.
      3. Public disclosure is not actionable if the publication is newsworthy.
    4. Intrusions on plaintiff’s seclusion or solitude. The act of prying or intruding into ones private affairs must be objectionable to a reasonable person to be actionable.

Example: A made obscene phone calls to B late at night. This is an invasion of privacy and an intrusion on ones seclusion or solitude.

  1. Defenses of invasion of right of privacy.
    1. The defamation defenses of absolute and qualified privilege are applicable to privacy actions
    2. Consent.
    3. Mistake is no defense.
    4. Truth is no defense.
    5. Misrepresentation, fraud and deceit encompass the same cause of action. To bring a prima facie case for misrepresentation the plaintiff must show the defendant:
      1. Intentional misrepresentation.
        1. Misrepresentation of a material fact.
        2. Scienter. Knowledge or belief of its falsity with no basis to believe the false representation was true.
        3. Intent. An intent to induce the plaintiff to act or refrain from acting in reliance on the false representation.
        4. Justifiable reliance by the plaintiff.
        5. Damage or pecuniary loss.
        6. There is no duty to disclose information to another person. There is no liability for non-disclosure.
          1. Exceptions:
            1. Where a fiduciary relationship exists between an executor and a beneficiary, minority and majority stockholder, bank and depositors, principles and agent, family members and even old friends

Example: A, is a baseball card collector who was at a baseball card show and he saw a 12-year-old kid B, with a 1952 Mickey Mantle Topps rookie card that A knows is worth 25,000. A, goes up to B, who is wearing a Dodger hat. B is unaware of the true value of the Mantle card. A asks T what card he has. B says it’s a Mickey Mantle card. A asks if B is a Yankee fan. B says no, he’s a Dodger’s fan. A says I’ll trade you that Mantle card for my four Dodger cards. The four cards have a combined value of 5 cents. They make the trade. A week later B finds out the true value of the Mantle card and sues A for fraud. Can B win? No, because there was no fiduciary relationship between A and B and A was under no duty to disclose the true value of the card to B.

  1. There may be liability for non-disclosure where the defendant has provided half-truth, or certain information to the plaintiff without revealing all of the facts.

Example: D is selling a used car to P. P says to D how many miles are on this car, and on the odometer there is 10k. D says there is only 10k, but in fact the odometer broker a year earlier and actually had 30k miles on it. That would be incomplete information and provide a basis for failing to disclose true facts.

  1. Negligent misrepresentation.
    1. Misrepresentation by the defendant.
    2. In a professional or business capacity.
    3. Breach of duty toward plaintiff.
    4. Actual reliance.
    5. Justifiable reliance.
    6. Damages.

Negligent misrepresentation arises in contract law. In general, misrepresentation refers to a situation in which someone makes a false statement for the purpose of making a deal, resulting in the person who relies on the statement causing them harm. In negligent misrepresentation, someone makes a statement without any grounds for knowing whether it is true or not. An aspect of carelessness is involved in negligent misrepresentation.

Example: A car dealer claims a previous car owner changed the oil without actually knowing it to be true is committing negligent misrepresentation.

This differs from innocent and fraudulent misrepresentation. In innocent misrepresentation, someone making a statement believes that a statement is true when it is not. This person may be relying on outdated information or incorrect information from someone else which that person has reason to believe is true. In fraudulent misrepresentation, the statement is a lie and someone knows that it is a lie or disregards evidence that it is a lie.

Misrepresentation in a contract does not necessarily provide grounds for a suit. In the example of a car dealer above, if the customer bought the car and the oil had not been changed regularly but no damage was caused, the customer cannot later sue the dealer. The customer has suffered no harm as a result of the false statement. If, on the other hand, the engine seizes because the oil was never changed, the buyer can sue the dealer for negligent misrepresentation because the buyer has suffered harm.

The law distinguishes between misrepresentation and what is known as puffery. Puffery is language which is generally understood to be subjective and not intended to be understood literally. When a dealer says “this is a great car to drive,” this is an example of puffery, and the buyer cannot later sue on the grounds that it is not a great car to drive. If, on the other hand, the dealer says “the steering on this car is very responsive” and it is not, this may be considered misrepresentation because it is a statement which appears factual but is actually false.

  1. Abuse of process/malicious prosecution.
    1. Malicious prosecution elements:
      1. Institution of criminal proceedings against the plaintiff.
      2. Termination in plaintiff’s favor.
      3. Absence of probable cause for prior proceedings.
      4. Improper purpose.
      5. Damages.
      6. Prosecutors are immune from liability.
        1. Abuse of process.
          1. Wrongful use of process for an ulterior purpose.
          2. Definite act or threat against the plaintiff in order to accomplish their purpose.
    2. Interference with contractual relationships.
      1. There must be the existence of a valid contractual relationship between the plaintiff and a third party, or a valid business expectancy of the plaintiff.
      2. The defendant had knowledge of the relationship.
      3. The defendant Intentionally interfered that Induced the breach or caused the end of the relationship.
      4. Damages.
    3. Trade libel requires special damages.
  1. III. Negligence. The most tested area on the MBE. Conduct that falls below the standard established by the law for the protection of others against unreasonable risk of harm. Standards are different for children, adults and professionals. Negligence can be committed by an affirmative act, or failure to act where a person is under a legal duty to act.

Legal duties to act include:

  • Family relationships. Parents have a duty to control dangerous children so they don’t harm any third party.
  • Contracts.
  • Statutes like Good Samaritan Acts requiring a person to give assistance or come to the aid to somebody that might be in peril. Omissions to act could make one liable for violating the statute.
  • Voluntary assumption of care where one voluntarily acts they cannot leave the person in a more periless condition than they were found.
  • Creation of peril. If one creates a periless condition they are under a legal duty to give assistance to the victim.
  1. Establishing a prima facie case for negligence.
    1. Duty. Duty of care. Who is a duty owed to?
      1. Foreseeable plaintiffs. To conform to a standard of care for the foreseeable plaintiff. Palsgraff v. Long Island Railroad Co., 162 N.E. 99 (1928). Judge Cardozo: The duty of care is owed to foreseeable plaintiffs within the zone of danger. No duty is owed to unforeseeable plaintiffs outside the zone of danger.
      2. Standard of care. A reasonable person. Defendant’s conduct is measured against that of a reasonable person. Imposed on all human activity to act as an ordinary, prudent, reasonable person. The presumption is that an reasonable person will take precautions to prevent unreasonable risk of injury to others.

The reasonable person has the following characteristics:

  1. Physical characteristics. A person is expected to know their physical limits. Courts will take into account a person’s physical handicap.

Example: An epileptic person driving a car knowing they are susceptible to seizures which would make it dangerous to operate a vehicle.

Example: A person, who walks with the aid of a cane, fails to use one and trips and falls may be viewed as contributory negligent and recovery may be denied for their injury.

  1. Mental characteristics. The defendant must act as a person with average mental ability. Individual mental handicaps are not considered. Insanity is no defense as an insane person is held to the standard of a reasonable person.
  2. Knowledge. A defendant is deemed to have knowledge of things known by the average member of the community. Individual shortcomings are not considered.
  3. Rescuers. A duty of care is owed to a rescuer so long as the rescue is not wanton or reckless.
  4. Prenatal injury. A duty of care is owed to a fetus.
  5. Professionals. Some people are held to a standard different to that of an ordinary reasonable person. Professionals are people with special skills such as a doctor or a lawyer is required to possess and exercise the knowledge and skill of a member of the profession in good standing in the community or similar locality. A professional must use such superior judgment, skill and knowledge that they actually possess. A specialist might be held liable where a general practitioner would not.
  6. Children. A child is required to conform to the standard of care of a child of like age, education, intelligence and experience. When a child engages in adult activities, such as operating a car, drives a motorboat or flies an airplane, the child is required to conform to the same standard of care as an adult engaging in such activity.
  7. Common carriers. Required to exercise a high degree of care and are held liable for even slight negligence.
  8. Automobile driver to guest. Two approaches.
    1. Common law guest rule. Automobile guests are treated as a licensee. The driver owes a duty to warn a licensee of any known defects with regard to the operation of the vehicle.
    2. Guest statutes. The driver’s only duty is to refrain from gross, wanton or willful misconduct.

Example: Driver offers a fried a ride to the office, or out to dinner, and negligently drives and causes injury after which the driver and insurance company take refuge in the statute and leave the guest to bear their own loss. This is not good social policy, and as a result guest statutes almost provide immunity to a negligent driver. The only way under a guest statute that a driver will be held liable is where they are engage in gross, wanton or willful misconduct with the operation of the car.

  1. Distinguish between a guest and a passenger. When a person creates an economic benefit with their presence in an automobile, they are considered a passenger, not a guest.

Example: P chips in to pay for gas or tolls. These people have an elevated status and the duty of care is similar to an invitee. Here, the driver is under a more affirmative duty to inspect the vehicle and make it safe for the protection of the passengers, and exercise ordinary care regarding the operation of the vehicle.

  1. Bailment duties.
    1. Gratuitous bailment. The bailor must inform the bailee of any known defect of which they are aware. Similar to the duty owed to a licensee.
    2. Bailment for hire. There is a duty to make a reasonable inspection similar to invitees.
    3. Trespasser. No duty is owed to a trespasser.
    4. Licensee. A licensee is a guest, someone who has permission to enter another’s property. The possessor is under a duty to warn the licensee of any known dangerous conditions, which they are aware of.
    5. Invitee. A business visitor.
      1. Duty to inspect the premises.
      2. A duty to make the premises safe for the invitee.
      3. Emergency situations. The existence of an emergency presents little time for reflection and courts take that into account in determining how the defendant acted. The defendant must act as a reasonable person would have acted under the same emergency. The emergency may not be considered if it is of the defendant’s own making.
      4. Owners or occupiers of land. A possessor or landowner owes no duty of care to protect others from natural conditions that exist on the land.

m.  Tree Exception. If one owns land in a rural area such as a farm or wooded area there is no duty of care. However, if it is an urban area the possessor or homeowner is under the duty of reasonable care of maintenance and upkeep of trees.

Example: A decaying tree and a limb falls injuring a passerby, and the possessor failed to make a reasonable inspection they would be held liable.

  1. Artificial conditions. No duty of care owed for artificial conditions.
  2. Attractive nuisance doctrine. Also known as the trespassing children’s doctrine allows a trespassing child, who has been injured by an artificial dangerous condition existing on a land to recover under the following elements:
    1. There must be an artificial dangerous condition on the land.
    2. The possessor knows or has reason to know that children are likely to trespass on the property.
    3. The possessor knows or has reason to know that the artificial dangerous condition involves and unreasonable risk to cause bodily injury or harm to the child because of their youth, age or immaturity fails to appreciate the danger or realize the risk involved in intermeddling with it.
    4. In balancing the equity, the utility of maintaining the dangerous condition is slight compared to the risk involved.
    5. Duty of care of possessors or owners or land owed to people that enter the land. Three classifications of individuals that enter onto property.
      1. Trespasser. If it is an unanticipated trespasser there is no duty of care owed. However, if the owner or possessor knows or is likely to know that trespassers are likely to enter onto the property, then there is a duty to warn of known dangerous conditions that exist on the property.
      2. Licensee. A person who has permission to enter onto the land of another. The possessor or owner has a duty to warn of known dangerous conditions that exist on the property

Example: A invites B and C to a BBQ at their house on Saturday

Example: A has a party at his house and invites several guests

Example: A invites friends over to play Monopoly.

  1. Invitee. Duty to make a reasonable inspection and make the premises safe.
  2. Business customers.
    1. Public invitees. Hotels, airports, museums and libraries are public invitee.
    2. Public employees entering the land in connection to business being transacted on the land are treated as invitees.

Example: Garbage collectors, mailmen, meter readers and building inspectors.

Exception: Firemen and policemen are mere licensees.

  1. Liability of lessors of land to persons on the property. A lessor is not subject to liability to the lessee or others for a dangerous condition that comes into existence after the lessee has taken possession.
    1. A lessor remains liable for dangerous conditions that exist in common passageways such as elevators, hallways and stairs. When only a portion of the premises is leased the lessor remains liable for the maintenance and the upkeep of the common passageways.
    2. A lessor has a duty to maintain common passageways and will be held liable for injuries cause by dangerous conditions. At the commencement of a lease a lessor has a duty to warn of all known existing hidden defects, which the lessee is not likely to discover.
    3. If the lessor contracts to repair then the lessor is liable for negligent repair.
    4. Land leased for purposes involving the public. A lessor who leases land for a purpose which involves admission of the public is subject to liability for physical harm caused by a dangerous condition existing on the land or the premises, if the lessor knows or should know of the dangerous condition and fails to remedy it.
    5. Breach of duty. Plaintiff must present evidence showing that the defendant breached their duty of care, acted unreasonably and the breach was the proximate legal cause of the resulting harm or injury suffered by the plaintiff. Proof of what happened may be established by direct or circumstantial evidence.
      1. Res ipsa loquitor. The thing speaks for itself.
        1. The accident would not have happened absent negligence.
        2. The negligence is the fault of someone in the defendant’s position, or exclusive control. The plaintiff must present evidence the instrumentality that caused the injury was within the defendant’s exclusive control.

Modernly many states do not require exclusive control.

Negligent manufacturing cases do not require exclusive control because the manufacturer has sold the product, it’s already in the stream of commerce and by the time it injures the consumer its outside of their control. To show a prima facie case in negligent manufacturing it is only necessary to show the manufacturer was responsible for producing or manufacturing the product.

  1. Burden of proof. The doctrine does not change the burden of proof, does not establish proof of negligence and no directed verdict will be given to a defendant. There will be no summary judgment. The court will let the jury, as the trier of fact make a final determination as to whether the defendant should be held liable for negligence or not. To establish a prima facie case of res ipsa loquitor:
  2. Violation of statutes.
    1. May provide a criminal penalty.
    2. Statutes must clearly define the standard of conduct.
    3. The plaintiff must be within the protective class.
    4. The statute must be designed to prevent the type of harm suffered by the plaintiff.
    5. Compliance would not be more dangerous than the violation.
    6. An violation of statute is not conclusive proof of negligence but is evidence of negligence for the jury to consider.

Example: Driving through a red light, or stop sign.

  1. Negligence per se. To recover under negligence per se plaintiff must prove:
    1. Plaintiff was a member of a class of persons sought to be protect by the stature.
    2. The harm suffered was the kind the statute was meant to protect.
    3. Defenses to violation of a statute.
      1. Emergency situations.

Example: H is driving W to the hospital because she is about to give birth. W is telling H to hurry the baby is coming out. H drives through a red light to get to the hospital so the child can give birth at the hospital facility. H running the red light is an excused emergency situation and is not liable for negligence per se.

  1. Defendant’s physical infirmaries.

Example: A person with no known heart disease, suffers a heart attack, is rendered unconscious and the car violates certain vehicle regulations that would constitute an excused violation of statute due to the physical infirmary and the driver would not be liable for negligence per se. However, if a person knows he has a prior physical infirmary, such as epilepsy or a heart condition and drives the defense is not available because he is creating an unreasonable risk on harm by driving and knowing this physical condition exists.

  1. Causation.
    1. Actual or causation in fact. Before the defendant’s conduct can be considered the proximate or legal cause of plaintiff’s harm or injury it must first be a cause in fact of the injury. Tests to determine causation in fact.
      1. Sine quo non. The but for test. Plaintiff must show that the harm would not have occurred but for the defendant’s act.
      2. Substantial factor test. Whether the defendant’s conduct was a substantial factor in causing plaintiff’s injury.
      3. Direct cause test. Whether the defendant’s conduct was a direct cause of injury.
      4. Proximate or legal cause. Foreseeable plaintiffs must be within the zone of danger. The minority view is that everyone is within the zone of danger. If a defendant conduct was the proximate or legal cause then it must also be a cause in fact. However, it is possible to find a situation where the defendant’s conduct was a cause in fact, but not the proximate or legal cause, in which case he will not be held legally responsible for the injury suffered by the plaintiff. After establishing causation in fact it is necessary to determine whether the defendant’s conduct was the proximate or legal cause. If the defendant’s conduct is not viewed to be the proximate or legal cause then the defendant is not going to be found liable for plaintiff’s injury. Not all injuries actually caused by the defendant will be deemed to be proximately cause by their acts. Proximate cause deals with the limitations of liability with respect to persons and consequences. Two requirements:
        1. The foreseeability of harm requirement. Defendant is liable for all foreseeable harmful results regardless of their manner or timing.
        2. The foreseeable plaintiff requirement. Cardozo. A defendant only owes a duty of care to foreseeable plaintiffs who were within the zone of danger. Andrews’s minority view the defendant owes a duty to everybody who is harmed due to the defendant’s breach.
      5. Intervening causes. Tested on the MBE. An intervening cause is one, which actively operates in producing harm to another after the actor has already committed his negligent act or omission.
        1. Foreseeable intervening cause.
          1. Negligence of rescuers. Because rescuers are foreseeable the original tortfeasor will be held liable for the ordinary negligence of the rescuer. Not for gross, reckless or wanton negligent conduct.
          2. Subsequent medical malpractice is an intervening cause and the original tortfeasor will be held liable not only for their own harm, but for the medical malpractice.

Example: A falls on the ice in front of B’s home and breaks his arm. He’s taken to the hospital and the doctor negligently causes staph infection. B is liable for the original injury and the medical malpractice.

  1. Subsequent disease.
  2. Subsequent accidents.

Example: A fails to remove sleet from his sidewalk and B slips and falls and breaks his leg. B is rushed to a hospital. At the hospital a doctor negligently treats B and suffers further injury. Will A the original tortfeasor be held liable for the new injury suffered by B at the hospital. In order to determine if the tortfeasor will be held liable we need to determine whether the intervening force was foreseeable or unforeseeable. If the intervening force was foreseeable then A is liable for the new injury suffered by the victim. However, if the intervening force is unforeseeable then the superseding cause breaks the chain of causation relieving the original tortfeasor of any further liability.

Example: A is raced to the hospital in an ambulance after breaking a leg in a car accident caused by B. The ambulance is then in another accident and A suffers a broken leg. B is liable for the broken leg as well.

Example: A negligently fractures B’s left leg. While walking on crutches B falls and breaks her right leg. A is liable for the second broken leg.

  1. Unforeseeable intervening cause.
    1. Superseding causes. Original tortfeasors are not liable because they break the chain of causation relieving the original tortfeasor from further liability.

Example: Acts of god.

Example: Criminal acts of third persons.

Example: Intentional tortuous acts of third persons.

  1. Multiple causes. When dealing with concurrent tortfeasors it is necessary to determine if the plaintiff suffered an indivisible injury that is incapable of apportionment, in which each tortfeasor is held jointly liable for the full amount of damages, or whether the injury is divisible and the damage can be apportioned to each tortfeasor.
  2. Summers v. Tice, 199 P.2d 1 (1948). When two or more persons cause a negligent injury and a plaintiff doesn’t know which one caused the harm, the burden of proof shifts to each defendant to show they did not cause the harm. Absent such a showing all defendants will be liable.
  3. Joint Tortfeasors. Where there are concurrent tortfeasors that cause plaintiff to suffer and indivisible injury, incapable of apportionment then both are held jointly liable for the full amount of damages. Where there are two or more joint tortfeasors, each causing separate injuries to the plaintiff and the injuries are divisible.

Example: D1 stabs P in the arm with a knife. D2 shoots P in the leg with a gun. Here, the injuries can be apportioned and D1 is only liable for the stab wound, and D2 is only liable for the bullet wound.

  1. Doctrine of contribution. Where joint tortfeasors have caused a single indivisible injury, then there is a right of contribution between them.

Example: P has suffered an injury cause by joint tortfeasors and suffers damages in the amount of 100k. P sues A and recovers a judgment for 100k. A can then seek contribution from B for 50k.

  1. Indemnification shifts the loss from one who has been required to pay to another who should bare the loss instead. Indemnification exists in vicarious liability situations such as respondeat superior. Caveat: Don’t confuse contribution with indemnification.
  2. Respondeat superior. An employer is held vicariously liable for the negligence or tortuous conduct of their employee that occurs within the scope of the employment relationship.

Example: E negligently drove their employer’s vehicle injuring the plaintiff who suffers 50k in damages. P sues the employer and receives a judgment of 50k, which the employer pays. The employer can seek indemnification from the employee who was the one at fault for causing the accident.

  1. Thin skull/eggshell rule. A defendant is held for the full consequences of plaintiff’s injury, even though due to plaintiff’s particular susceptibility to harm those consequences were more severe than a normal person would have suffered.

Example: A is a hemophiliac. B negligently leaves a stack of papers lying around in the hallway outside his cubicle at his workstation. A walks by, trips over the papers and falls down hitting his head on the side of the B’s desk. A begins to bleed heavily; eventually he looses so much blood he must be hospitalized. B is liable for the full extent of A’s injuries even though he did not know about A’s inability to clot blood, and was a hemophiliac.

  1. Damages. Plaintiff must suffer personal injury to themselves or actual property.
    1. Nominal damages are not available.
    2. Punitive damages are not allowed unless the defendant’s conduct is wanton and willful, reckless or malicious.
    3. Types of damages include:
      1. General damages.
      2. Special damages.
      3. Past and future pain and suffering.
      4. Medical expenses.
      5. Lost wages.
      6. Doesn’t include attorney fees.
      7. Plaintiff has a duty to mitigate damages.
      8. Collateral sources rule. Payment made to or benefits conferred on the plaintiff from other collateral sources are not credited against a defendant’s liability.

Example: Receiving insurance payments from an insurance policy maintained by the plaintiff, or by their employer.

Example: Employment benefits.

Example: Social legislation benefits. A is a veteran of the U.S. army. When B negligently injures A, she ends up in a vet’s hospital for physical therapy. Although this is a benefit A has earned by the fact that she is a veteran of the army. B is still liable for the damages that they caused.

  1. Exception to the collateral source rule. Payments made by the tortfeasor or by a person acting on their behalf, such as the defendant’s insurance company are credited against the defendant’s tort liability.
  2. Negligent defenses.
    1. Comparative negligence. Most states follow comparative negligence. On the MBE if the facts don’t tell you to apply contributory negligence always use comparative negligence. In comparative negligence jurisdiction damages are apportioned based on the respective degrees of fault of each party. If a plaintiff is negligent they will be allowed to recover, but recovery is reduced by the percentage of their negligence.

Example: If plaintiff suffers 100k in damages and the defendant is 65% at fault, plaintiff will be entitled to a 65k recovery.

  1. Modified comparative negligence jurisdiction. A plaintiff may recover provided that their negligence is not equal to, or greater than that of the defendant. (49% or less to recover.)
  2. Pure comparative negligence jurisdiction. A negligent plaintiff may recover even if plaintiff’s negligence exceeds that of the defendant. (51% or greater.)
  3. Unit rule. Plaintiff’s negligence is compared to the aggregate negligence of all the defendant’s.
  4. Contributory negligence. An objective standard where a plaintiff fails to exercise the care of a reasonable person for their own safety. In contributory negligence jurisdictions, if the plaintiff is even one percent contributorily negligent they are barred from recovering as a matter of law.
    1. Contributory negligence is no defense in strict liability actions.
    2. No defense to intentional torts.
    3. Exception. Last clear chance doctrine. Where the defendant has the last clear chance to prevent plaintiff’s harm, or is the last wrongdoer, a plaintiff who is negligent may still recover to mitigate the harshness of contributory negligence rule.
    4. Caveat: The last clear chance doctrines does not apply to comparative negligence jurisdictions.
    5. Not a defense to intentional torts, willful misconduct or to strict liability actions.
    6. Assumption of risk. A subjective standard where the plaintiff voluntarily exposes themselves to a known risk.
      1. The plaintiff does not assume the risk if they have no alternative in an emergency.
      2. No defense for intentional torts, but is a defense to wanton and willful negligence.
    7. Miscellaneous negligent considerations.
      1. Vicarious liability.
        1. Respondeat superior. An employer is vicariously liable for the negligence or tortuous acts of their employee that occur within the scope of employment. An employee is not vicarious liable for the intentional acts of their employees unless they make the intentional tort in the furtherance of their employers business.
        2. Frolic and detour is within the scope of employment if the detour is minor.

Example: A owns a nightclub and hires B and C as bouncers. One night a rowdy patron is inside the bar, and B goes up to the rowdy patron and punches them in the mouth. The employer is vicariously liable because the employee committed the battery in the furtherance of the employer’s business.

  1. Equal right of control.
  2. Independent contractors. Usually there is no vicarious liability unless there is non-delegable duties or inherently dangerous activity. An employer is not vicariously liable for the negligence or tortuous acts of an independent contractor.


  1. An employer is liable for negligence in selecting/supervising the IC.
  2. Liable for non-delegable duties.
  3. Liable for work that is inherently dangerous, such as construction of dams or reservoirs, or construction of high tension electric wires, or construction or repair on high-rise buildings.
  4. Partner or Joint venture liability. When two or more individuals agree to enter into an undertaking where there is a community of interest, and a mutual right of control they are engaging in a joint venture. Because such an arrangement is similar to a business partnership, each member is vicariously liable for the torts of the others committed within the scope of the enterprise.
  5. Family purpose doctrine. An owner of a car is vicariously liable for the negligent acts of their agents, or members of their family when using the auto for family purposes.
  6. Negligent entrustment. Where it appears that the owner of a vehicles knows or should know of the negligent propensity of the driver, to whom the vehicle is entrusted the owner will be liable for the subsequent acts of the driver.
  7. Dramshop acts impose liability on bartenders for torts caused by drunk third-parties.
  8. Intra-family tort immunity. Most states have abolished the common law rule that one could not sue a family member for a tort.
  9. Public officials. Public officials carrying out their official duties are immune from tort liability as long as acts are done without malice or improper purpose. Governments can’t be sued for applications done in the regular course of government stuff. However, they can be liable for things carried on that are often done by businesses.

Example: Operating an HMO.

  1. Wrongful death actions.
    1. At common law tort actions became null and void upon the death of either party. Defamation and privacy actions still do not survive the victim’s death.
    2. Modernly most states have enacted a wrongful death statute that allow personal representatives or a spouse to recover on behalf of the decedent for personal injury and property damage and pecuniary damage. Pecuniary damages include the loss of support and loss of consortium, but not pain and suffering.
    3. Survival statutes preserve claims of a decedent that exist at the time of death. Damages for pain and suffering, medical expenses and loss of wages are paid to the estate, not the beneficiary.
    4. Proximate cause. Rescuers are always foreseeable.
    5. Malpractice treatment of injured persons is foreseeable.

m.  Intended beneficiaries of a contract may be foreseeable.

  1. Owners and occupiers of land.
    1. No duty to undiscovered trespassers.
    2. Duty to expected trespassers is to warn of known or man-made death traps.
    3. Duty to licensees (guests) is to warn of known, latent dangers.
    4. Duty to invitees (customers). Same as licensees, but must make a reasonable inspection to discover dangers.
    5. One loses invitee status if they exceed the scope of invitation (enters back room).
    6. Attractive nuisance elements:
      1. Owner knows or should know of dangerous condition on property.
      2. Owner knows or should know children frequent the area.
      3. Condition is likely to cause injury.
      4. Expense of remedying situation is slight compared to the risk.

IV. Strict liability. Applies to products liability, dangerous and trespassing animals unless the plaintiff was trespassing onto the defendant’s property.

  1. Elements.
    1. There is an absolute duty to make the activity completely safe.
    2. Breach of that duty.
    3. Causation.
    4. Damages.
    5. Abnormally dangerous activities. Persons carrying on abnormally dangerous activities are strictly liable for the resulting harm or injury that are caused.
      1. There is a risk of serious harm to persons or property.
      2. The activity cannot be made safe.
      3. The activity is uncommon in the community.

Example: Blasting operations with dynamite. D is held strictly liable for the injury caused.

Example: Storage of explosives.

Example: Blasting operations with dynamite.

Example: Crop dusting with insecticides or pesticides.

Example: Pile driving.

Example: Fumigation of a building using cyanide gas.

  1. Ultra-hazardous activities. Involves a risk of serious harm that cannot be eliminated no matter how much care is used. Strict liability is limited to the kind of harm, which makes the activity abnormally dangerous.

Example: A is driving around town in his car. In the back of his car he has bottles containing highly flammable chemicals. What is the risk of harm? The risk of harm is that A will have an accident and the chemicals will ignite and cause a fire or explosion. A does have an accident and the bottles spill and break onto the street. A pedestrian walks across the street, slips and falls on the liquid and breaks his arm. Will A be held strictly liable? No, because that is not the kind of harm to be anticipated with that type of activity. The foreseeable problem is that the chemicals would ignite and cause a fire. If the pedestrian is to successfully sue A to recover damages for their injury the pedestrian must show negligence on the part of A, and there will be no recovery for strict liability under those circumstances.

  1. Defenses for both negligence and strict liability cases.
    1. On the bar exam discuss both contributory negligence and assumption of risk on the part of the plaintiff as valid defenses for the defendant.

Example: P consents to ride with a drunken driver in an unlighted car on a dark night. P’s conduct falls below that of a reasonable person regarding their own safety, and subjectively assuming the risk, by voluntarily exposing themselves to the risk of that danger.

  1. Example: Or dashes into a burning building to save their hat. P’s conduct falls below that of a reasonable person regarding their own safety, and subjectively assuming the risk, by voluntarily exposing themselves to the risk of that danger.
  2. Prosser. The great majority of cases involving assumption of risk have been of the type where the defense overlaps that of contributory negligence.
  1. V. Products liability. One who sells a product in a defective condition, unreasonably dangerous to the user or consumer is strictly liable for harm or injury that product causes.
  2. Strict liability is imposed on anyone who’s engaged in the business or sale, including manufacturers, retailers, suppliers and distributor.

Everyone involved in the sale of the product is held strictly liable if it leaves the seller’s hand in a defective condition. The required elements are.

  1. Presence of a defect in the product.
    1. Defective manufacturing.
    2. Defective design.
      1. The product is not safe for its intended use.
      2. It could have been made safe without serious impact on the price or utility.
      3. Compliance with government safety standards is not conclusive evidence that the product was safely designed.
      4. Unavoidably unsafe products such as a knife, is not defectively designed.
    3. Breach of duty.
      1. The defect existed when it left the defendant’s control.
      2. The product cannot be substantially altered before it reaches the plaintiff.
    4. Causation.
      1. Actual.
      2. Proximate.
    5. Damages.
      1. Personal or property injuries only. Not economic loss.
      2. Applicable against anyone in the chain of commerce. Retailers are liable even if they had no duty to inspect the product.
    6. Exception.
      1. Occasional sellers. Strict liability is not imposed on occasional sellers of products.

Example: A lawyer sold a used car to buyer. While driving the car home, buyer gets in an accident due to brake failure. Will lawyer be held strictly liable due to the brake failure? No, because they are not engaged in the business of selling used cars.

  1. Recovery. Who can recover for strict product liability? All foreseeable users and consumers are protected.

Example: If A purchases a lawnmower and loans it to B. B is injured because of a defect in its operation. B can maintain a strict liability claim against the sellers as well as the purchaser.

  1. MacPherson v. Buick Motor Co., 111 N.E. 1050 (1916). A majority of states allow bystanders to recover for strict liability where they’re injured by defective products.
  2. Failure to provide adequate warnings may make a product unreasonably dangerous and provide grounds for recovery in strict liability.
  3. Disclaimers. Use of disclaimers will not provide a valid defense and absolve the manufacture of strict liability.

10. Other actions may be brought against suppliers, such as negligence and breach of warranty.

11. Essay. If a question deals with product liability/defective products discuss strict liability, negligence and warranty theories.

In order to establish a prima facie case for strict product liability the plaintiff only has to show evidence that the product left the seller’s hand in a defective condition. However, in negligence actions the plaintiffs have to prove breach of duty and that that defendant failed to exercise reasonable care in the inspection or sale of the product.

12. Commercial suppliers may be liable under negligence theories for failing to exercise reasonable care in the inspection or sale of the product that cause harm or injury to the plaintiff.

13. Defenses.

  1. Assumption of risk is the only defense against strict liability. Contributory negligence is no defense in a strict liability action.
  2. Misuse. Misuse of a product is no defense for strict liability where the misuse is foreseeable.

14. Recovery.

  1. Damages for personal injury and property damage.
  2. Tangible economic loss such as lost profits is not recoverable.
  3. Negligence.
    1. Duty.
      1. Standard of care.
      2. Foreseeable plaintiffs.
    2. Breach.
    3. Causation.
      1. Actual.
      2. Proximate.
        1. Retailers are not liable if they conducted a reasonable inspection.
        2. Failure to inspect does not cut of manufacturer’s liability.
    4. Damages.
      1. Implied warranty.
        1. Implied warranty of merchantability.
        2. Implied warranty of fitness for a particular purpose.
        3. Bailee and lessees may also be liable.
        4. Purely economic losses are recoverable in addition to physical injury.
        5. Disclaimers rejected as to economic loss are permissible but not to physical injury.
      2. Express warranty/misrepresentation.
        1. Warranty must have been part of the basis of the bargain.
        2. Bailees and lessees can be held liable.
        3. UCC Warranty Theories.
          1. Express warranty. A seller making a representation of fact, which is the basis of the bargain, is more than mere puffery. The seller is liable for breach of warranty to the plaintiff under the theory of misrepresentation.
          2. Implied warranty.
            1. Warranty of fitness for particular purpose. The seller is warranting that the goods are fit for a particular purpose.
            2. Warranty of merchantability. A general warranty where the seller provides only an ordinary purpose.
            3. Keepers of wild animals. If a dangerous wild animal injures someone, the keeper of the animal is held strictly liable.
              1. One cannot domesticate a wild animal.
              2. To recover for injury one has to show causation and the animal must directly or indirectly cause the plaintiff’s injury.

Example: A lion, tiger, elephant, snake, monkey or giraffe.

Example: A, owner of a lion who was defanged, or declawed to make the lion harmless, or trains the lion to be tame will not defeat strict liability.

  1. Example: A woman is on a plane trip accompanied by a pet snake in a cage. The woman defanged the snake to make it harmless. The flight takes off and she negligently leaves the cage door open. The snake slithers out into the aisle and a passenger on the way to the restroom sees the snake and becomes frightened, slips and falls and breaks their ankle. The passenger sues the woman to recover damages.

A)    No recovery because the snake did not directly cause the injury.

B)   No recovery because the snake was harmless.

C)   Recover for negligence.

D)   Recover for strict liability. Correct answer.

Prosser. If one is injured fleeing from a wild animal the injury is proximately related to the animals dangerous propensity and recovery is allowed.

  1. Domestic animals. An owner is not liable for injuries unless they had scienter/knowledge of the dangerous propensity of the animal.
    1. The one bit rule. Every dog is entitled to one free bite.
    2. Defenses.
      1. Contributory negligence is no defense unless the plaintiff’s negligence causes a malfunction in the abnormally dangerous activity.

VI. Nuisance. Essays. Always address damages, injunctive relief as well as abatement by self-help.

  1. Public nuisance.
    1. An unreasonable interference with the health, safety or property rights of the community.
    2. Individual damages will only be awarded if the plaintiff suffered unique damages. Not just a higher degree than the general public.

Example: The fact that plaintiff has an occasion to use a highway, or stream five times greater than anyone else gives them no private right of action when its use is obstructed. Because anyone who uses a highway, or stream will suffer damage greater than anyone who does not use it.

If the plaintiff can show they suffer personal injury or harm to their health, mental distress or physical harm to his chattels then they may recover because there is no difficulty in finding a different kind of damage.

Example: Where there is a substantial interference with plaintiffs use and enjoyment of their own land, as where the plaintiff lives next door to a house of prostitution, which disturbs the public morals, but also makes the plaintiff’s life disagreeable where clients are throwing condoms on the plaintiff’s front lawn, or making loud noise, then the plaintiff can show they have suffered harm of a different kind than that suffered by the general public then recovery will be allowed.

  1. Private nuisance.
    1. Where the disturbance creates a substantial and unreasonable interference with ones use and enjoyment of property.
      1. Does not include hypersensitivity or specialized use of property.
      2. Substantial means offensive, inconvenient or annoying to the average person in the community.

Example: A factory worker worked the graveyard shift and slept from 9:00 a.m. to 5:00 p.m. and lived across the street from a church. On each hour the church bells would ring. It kept the factory worker up and could not sleep. He sought action against the church to enjoin them from ringing the bells during morning hours. He lost because he was viewed as a hypersensitive plaintiff because the average person in the community are up at 9:00 in the morning and are not inconvenienced by the bells ringing at that time of day.

Example: A dog howling all night. A Dupont factory emitting noxious fumes or gases over their property.

  1. Trespass nuisance. Trespass requires a physical intrusion, such as entering onto, or throwing some type of item onto the property. The nuisance requires an interference with the plaintiff’s use and enjoyment of the property.
    1. There may be a trespass and a nuisance.
    2. Example: A owns many cats as pets. They enter B’s property and B is allergic to the cats and therefore cannot make normal use of his backyard. The cats entering onto B’s property is a trespass. B can also maintain an action for nuisance because it’s an interference with his use and enjoyment of his property.
    3. Defenses to nuisances.
      1. Coming to the nuisance is not an absolute defense. It’s only one factor courts will consider whether or not a nuisance exists.

Example: A buys a property next to a factory, which has been in existence for 20 years. The factory emits smoke and gases that discolor A’s house. The factory contends as a defense that A came to the nuisance, and that they have been in operation for 20 years and A should be prevented from bringing action. This defense will be one factor the courts will consider in determining whether or not the plaintiff should recover for nuisance.

  1. Compliance with statute is not an absolute defense for nuisance actions. It is relevant and persuasive but its not an absolute defense to nuisance actions. The fact that a factory is in compliance with zoning ordinances, or pollution regulations is not an absolute defense.
  2. Remedies for nuisance.
    1. Money damages is the usual remedy for private or public nuisance. However, where money damages are inadequate, then the court may grant injunctive relief.
    2. Abatement by self-help.
      1. Private nuisance. One has a privilege to enter onto defendant’s land and personally abate a private nuisance after giving notice to the defendant where they refuse to act.
      2. Public nuisance. Where one has a unique damage they have a similar privilege of self-help.

Example: A factory emits gases and smoke that causes a substantial interference with the communities use to property and as a result they cannot use their backyards. Plaintiff brings action to enjoin operation of the factory. However, the factory employs 600 people in that same community and to enjoin the factory will displace workers and cause economic hardship to the community. Here the court will balance the equities and generally the court will award money damages, but not enjoin the factory from operation because it will cause economic hardship and a displacement of workers in the community.

  1. VII. Remedies.
  2. Legal remedies. First evaluate the adequacy of the legal remedy.
    1. Damages, which is money.
    2. Then restitution.
      1. Money.
      2. Replevin.
      3. Ejectment.
      4. Equitable remedies. If legal remedies are inadequate, look to equitable remedies.
        1. Restitution.
          1. Constructive trust.
          2. Equitable lien.
    3. Injunction.
    4. Types of remedies.
      1. Damages.
        1. Compensatory damages.
          1. General damages.
          2. Special damages. They must be specifically pleaded.
          3. The plaintiff must mitigate their damages.
      2. Nominal damages.
        1. Where there’s no actual damage.
        2. Not available for torts where damages is part of the prima facie case.
      3. Punitive damages.
        1. For willful, wanton or malicious conduct.
        2. Can’t be more than ten times the compensatory damages.
    5. Restitution. Unjust enrichment.
      1. Legal remedies.
        1. Money. The defendant must give back money wrongfully obtained.
        2. Replevin.
          1. The defendant must give back specific chattel wrongfully obtained.
          2. The defendant may be able to keep chattel by posting a bond.
          3. Ejectment. The defendant must restore land to plaintiff.
      2. Equitable remedies.
        1. Constructive trust.
          1. A trust to compel the defendant to reconvey title to property unjustly retained.
          2. Used when property acquired is worth as much or more than the plaintiff’s claim.
          3. Example. Fraudulently obtained stock that subsequently increased in value. Requires the plaintiff to show the defendant has title to property. The title can be traced to wrongfully obtained property. The defendant’s retention of they property would result in unjust enrichment. The plaintiff has no adequate legal remedy.

Example. The defendant is bankrupt.

  1. Equitable lien.
    1. A lien imposed on the defendant’s property to secure payment of debt owed to the plaintiff.
    2. Gives plaintiff priority in the property over other creditors.
    3. Can be obtained on plaintiff’s property that was merely improved.

Example. A mechanic’s lien.

  1. Defenses.
    1. Laches. Unreasonable delay by the plaintiff in initiating their claim that results in prejudice to the defendant.
    2. Unclean hands.
    3. Sale to BFP.
    4. Injunction.
      1. Are legal remedies inadequate?
        1. Applies where damages are highly speculative.
        2. The wrong is continuous or will be repeated. The plaintiff would have to bring a multiplicity of suits.
        3. Irreparable injury. Damages can’t compensate for loss of unique property.
          1. Prospective tort. No wrong has yet been committed.
          2. Replevin is inadequate because defendant can keep chattel by posting a bond.
      2. Is there a property right involved? Modernly courts protect both property and personal rights by injunction.
      3. Is an injunctive decree feasible?
        1. Must the court exercise too much supervision?
        2. Would it require an act in another state?
      4. Should the hardships be balanced?
        1. Encroachment. If the encroachment is intentional, there will be no balancing. If the encroachment was innocent, court will balance, but lean in favor of the plaintiff.
      5. Are there defenses?
        1. Laches. An unreasonable delay by the plaintiff in initiating their claim would result in prejudice to the defendant.
        2. Unclean hands.
        3. Freedom of speech. The 1st amendment prohibits injunctions against personal defamations.
        4. Criminal act. Equity will not enjoin a crime. There may be an exception for public nuisances.

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