tort law outline_barbri intentional torts outline

7/22/2019 Tort Law Outline_Barbri Intentional Torts Outline

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The following outline is provided to illustrate how a law outline is structured andhow one publisher outlined Tort law. If any outline conflicts with our text orlectures, disregard the outline, as it may use a different perspective or

interpretation of law. Enjoy

!lan "ec#man

Barbri Torts Outline

Intentional Torts !$ "asic Elements

%$ !ct: must be volitional &$ Intent: may be specific '( intended to cause specific conse)uences$ or general'( *+S-$. Transferred intent. Everyone is capable of it 'including #ids, mentallyincompetent, drun# Incapacity not a defense$ 'a$ Scenarios '$: %$ when ( intends to commit a tort against ! but commit adifferent tort against " &$ when ( commits the same tort ( intended but against adifferent person $ when ( commits a different tort against a different person. 'b$

!pplicability: "attery, !ssault, /alse Imprisonment, Trespass '0and1chattels$ $

ausation: (2s conduct must have been a substantial factor in bringing about theharm"$ "attery Elements%$ 3armful or offensive contact: 'a$

(efined by reasonable person. 4ffensive contact 'if it would be unpermitted by aperson of normal sensitivity. 5o ta#ing account extreme sensitivity$. E.g., tappingon shoulder v guy stro#ing hair coming onto girl 'b$ 6ay be direct 'stri#ing 7$ or indirect 'setting a trap$ 'i$ 54 need for it damages to happen instantaneously. ( can set it in motion. E.g.,poison 72s sandwich. 7 becomes ill hrs later. 'c$

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5ot offensive if consented to. onsent implied for ordinary contacts of everydaylife 'e.g., bumping into in crowds$ &$ To 72s person

: includes anything connected to the 7 'e.g., if 7 driving car, the windshield$. E.g.,8oman2s horse slapped while woman riding. $ ( intended 'specific1general$ 9$ ausation $

!ssault

%$ ! volitional act by ( creating reasonable apprehensionin the 7 'a$ (efinition apprehension: #nowledge 'not fear$. E.g., Scrawny (avid threatens big;oliath. 8rong answer < ;oliath isn2t placed in reasonable apprehension. 'b$ (octrine of apparent ability: ( must merely have apparent abilty to commitbattery 'If ( loo#s li#e he can 7 thin#s he can$. E.g., *unloaded gun- 7 thin#s is

loaded. &$ 4f immediate harmful or offensive contact to 72s person 'anything connected w1$ 'a$ 8ords alone not sufficient to create immediacy unless coupled w1conduct'conduct may be slight: sha#ing fist$. "ut may negate reasonableness of 72sapprehension '*If I wasn2t your friend, I2d #ill u-$ 'b$ 8ords that promise action in future insufficient 'E.g., 8ait till 76. I2ll beat you$$ Intent 'general1specific$ = 9$ ausation ($

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/alse Imprisonment%$

!n act 4> omission by ( that causes a person of reasonable sensitivity to beconfined or retrained 7

'a$ Sufficient acts to restrain are: physical barriers, physical force1threats of, invaliduse of authority = failure to release. Insufficient acts include moral pressure =future threats. E.g., (oor wide open but ( says, *If you leave I2ll #ill your son I#idnapped- 'reasonable$ v *If you leave, I2ll blow up ?upiter.- &'b$ 4missions may be acts of restraint if ( has a pre@existing duty to help 7 moveabout 'E.g., flight crew not giving wheelchair$ 'c$

(uration of restraint1confinement irrelevant 'd$ (uration of restraint1confinement irrelevant &$ To a bounded area: where freedom of movement limited in all directions 5o reasonablemeans of escape #nown to 71reasonably discovered 'a$ 5o re)uirement 7 be constrained by physical boundary: 6ay be constrained bythreat 'b$

Anreasonable to ma#e 7 climb through rat hole1only way of escape is Bsecretpassageway2 $ 7 must #now of confinement 4> be harmed by it'E.g., >oommate loc#s other roomie2s door but roomie sleeping. 5o c1a. vs>oommate loc#s roomie2s door = roomie can2t get out to ta#e pill at, dies c1a$ 9$ Intent C$ ausation E$ IIE(%$ Extreme and outrageous conduct by ( 'transcends all bounds of decency$ 'a$



6ere insults don2t )ualify as outrageous @ but *outrageous to exploit 72s #nownsensitivities- < esp in *fragile- class of ppl < elderly, pregnant, #ids = ( #nows or( common carrier1inn #eeper$. E.g, insults law student v #nowingly targets #id'b$

onduct not normally extreme = outrageous may become so if %$ continuous'DIS! < !6$ &$ ( #nowingly directs it toward a certain type of 7 '#ids, elderly,pregnant, *sensitivities-$ = $ if committed by certain type of ( 'commoncarriers1inn #eepers liable for even gross insults$ 'c$ (on2t ta#e into account extreme sensitivities 'except if ( #nows: adds tooutrgaeousness$. E.g., ( puts fa#e sna#e on co@wor#er2s chair. owor#er hashuge phobia = has heart attac#. 5o c1a unless ( #new about co@wor#er2s phobia.&$

( committed intentionally or rec#lessly 'substantial disregard as to the effect of conduct$ $ ausation 'a$ "ystander recovery if shows: ( intentionally caused physical harm to rd person = 7 suffered emotional distress as a result. & ways to recover: %$ eithershow p1f IIE( or show %$ were present when injury occurred &$ were a closerelative 'not fiance$ = $ ( #new 7 was present = close relative 'b$

Tip: IIE( is *fallbac#- tort. hoose another answer if can. 9$ (amages: Severe emotional distress, not annoyance.no re) for observable physical symptoms./$ Trespass to 0and%$ 7otential 7s: anyone in actual1constructive possession 'including lessees$ &$ Intent to physically invade 72s property: 'a$ no re)uirement ( #now land belongs to another $ 7hysical invasion of 72s real property:

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'a$ 7hysical invasion may be by a person1object '#id *s#ipping stones-, even ifmotivated by charitable impulses < watering shrubs = decide to water neighbor2s.8ater falling is trespass. If intangible: nuisance claim 'e.g., sight, sound = smell$.

'b$ >eal property includes reaosnbale airspace = subterranean space 'E.g., (elta o#v C ft above jet$ 9$ ausation C$ Intent:

;$

Trespass to hattel %$

!n act by ( that interferes w172s right of possession in a chattel 'a$ Either intermeddling or dispossessing < #eying someone2s car &$ Intentto do about the act that caused the interference $

ausation 9$ (amages 'a$ >ecovery of actual damages from harm to chattel or loss of use 'ifdispossession, damages based on rental value$3$ onversion < 6ore Serious Trespass to hattel%$ Same potential 7s as w1trespass to chattel &$

!n act

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by ( that so seriously interferes w172s right of possession as to warrant the ( topay the chattel2s full value < totaling someone2s car. *Fou brea#, steal,substantially change < you pay.- 'a$ E.g., wrongful ac)uisition 'theft$, wrongful transfer, wrongful detention,

substantially changing, severely damaging or misusing 'b$ The longer the detention = the more extensive the use the more li#ely it2sconversion = not mere trespass to chattel 'c$ 4nly tangible personal property = intangibles reduced to physical form'promissory notes$ subject to conversion $ Intent to do about the act that caused the interference 9$

ausation C$ (amages: fair mar#et value of chattel at time of conversion 'e.g., forced sale of chattel$ 4>recover chattel 'replevin$I$ (efenses to Intentional Torts%$

72s Dalid onsent:'a$ Dalid consent: 7 can2t consent to a criminal act 7 must have capacity toconsent 'not drun#, veryyoung #id, or dev disabled$.Tip: Everyone capable of intent but not consent to tort$ 'i$ +ids = consent: may consent to age appropriate activities but not activities thatwould normally re)uire adult j2ment 'e.g., sex$ 'ii$ 3ow consent may be given: '%$ Express consent: Spo#en1written words that grant ( permission to behave in what wouldotherwise be tortious manner. ;eneral rule ( not liable. Exceptions '$: %$onsent is result of 72s mista#e ( #new = too# advantage of it &$ onsent wasinduced by fraud goes to an ESSE5TI!0, 545@400!TE>!0 matter $

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onsent was obtained by duress, unless duress was only future threats ofharm1future economic deprivation. a. E.g., 4ne night stand. 4ne partner gives the other ST(. 1a. 5o consent to ST(bc w1holding material information is fraud = nullifies consent. '&$

Implied consent may be a defense: a.

!pparent consent: where a reasonable person would infer 72s consent fromcustom, usage or (2s objective conduct 'E.g., consent to what2s customary insports even if violates game2s rules < hoc#eyH ring bell not trespass bc impliedconsent by maintaining front wal# w1o gateH date lights candles etc < reasonableto infer consent to #iss$ b. onsent implied by law: when action necessary to save a person2s life1some

important property interest 9'b$ ( liable for exceeding scope of consent 'E.g., invite friend to living room. /riendpo#es around in attic. E.g., 7 consents to heart surgery = (octor also includesnose job. "attery. Exceeds scope$ &$ Self@(efense 4f 4thers = property 'a$ 4nly applies to torts being committed1about to be committed. 5ot to torts already

committed 'E.g., grab someone2s hand to stop them before they slap you v nextday, punching them$ 'b$ ;eneral rule for (efense of Self = (efense of 4thers: 'i$

! person may use such force as is reasonably necessary to protect herself oranother against injury if she reasonably believes that she or another is being or isabout to be attac#ed. 'ii$ 5o duty to retreat for non@deadly force. (uty to retreat for deadly force if can bedone safely unless actor in home 'iii$ >easonable mista#e as to existence of danger permitted 'c$ (efense of 7roperty 'i$ ;eneral >ule: >easonable force may be used to defend lawfully possessedproperty so long as %$ a timely re)uest to desist1leave is first made unless it



would be futile1dangerous = &$ deadly force is not permitted in the absence ofserious threat of bodily harm 'e.g., also indirectly, traps$ 'ii$ >easonable mista#e: permitted as to whether intrusion has occurred1re)uest todesist re)uired "AT 54T as to whether entrant has a privilege. 7rivilege

supersedes property rights. 'iii$ >ecapturing chattels '%$ 54 mista#e as to (2s right to recapture 4> to enter another2s land permitted 'Exception: shop@#eeper2s privilege: may detain for a reasonable period of timeindividuals she reasonably believes are in possession of shoplifted goods$.6ista#e permitted '&$ /orce in hot pursuit permitted if property wrongfully ta#en = may enter on theland of another at a reasonable time1manner after first ma#ing demand. 5o force

against rd persons to recapture '$ If another2s possession began lawfully, only peaceful means available to recoverchattel. '9$ If chattel on land of innocent party landowner given notice: chattel owner mayenter on innocent party2s land but liable for actual damage entry causes 'C$ If chattel on another2s land through chattel owners fault: no privilege to enter on

the land. $ 7rivilege of !rrest: permits entry onto another2s land to effect the arrest 'a$ /elony !rrest by a 7olice 4fficer: 'i$

!rrest is privileged if: %$ the officer reasonably believes that a felony has beenconvicted the person he arrested has committed it. 'reasonable mista#e is adefense$ 'ii$

!mount of force allowed: The degree of force reasonably necessary to ma#e thearrestH deadly force only when suspect poses a threat of serious harm 'b$ /elony !rrest by 7rivate itiJen 'i$

!rrest is privileged if: %$ The felony I5 /!T must have been committed = &$ thecitiJen must reasonably believe the person he arrests has committed it. 5o

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defense of mista#e re whether the felony was committed but defense as toidentity of the arrested 'ii$

!mount of force: Same as w1with felony arrest by police officer 'c$

6isdemeanor !rrests: %$ must be for a breach of peace = &$ action must ta#eplace in front of (. !mount of force: (egree of force reasonably necessary toma#e arrest but 5EDE> deadly force 9$ (iscipline of child using reasonable force by parent1teacher C$ 5ecessity: (efense 450F to property torts: trespass to land, chattels, orconversion. C'a$ >ule: ! person may interfere w1another2s real1personal property when it2s

reasonably = apparently necessary to avoid harm substantially more seriousthan the interference would cause. 'b$ & types of necessity: private = public 'i$ 7rivate necessity: ( invades 72s property in an emergency not of his own ma#ingto protect interests of his own. ( has *right of sanctuary- < right to remain on 72sland so long as ongoing emergency. 5o liability for nominal or punitive damagesbut for actual damages. 'E.g., ( hi#es in woods = sees bull. Trespasses on7ete2s land. 7ete #ic#s him off. (ies. 7ete liable$ 'ii$

7ublic necessity: ( invades 72s property in an emergency not of his own ma#ingto protect the community as a whole1significant group of ppl. !bsolute defense.5o re) to pay for damages 'E.g., (og about to attac# #ids. Fou #ill it. onversionof personal prop. 5o liability. 7ublic necessity$II3arm to Economic = (ignitary Interests !$ (efamation '>eputation is economic asset$ %$ Luestion %: (oes the statement involve a matter of public concern1statementabout a public figureM 'a$ If Fes

72s p1f case: 'i$ ( must ma#e a (efamatory statement: allegation of fact that reflects negatively on 72s character trait = tending toadversely affect one2s reputation. 'E.g., common traits < honesty: embeJJled,

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cheated on taxesH loyalty < falsified reportsH courage < physically afraidH sexmorality < promiscuous$H competence 'education, job etc$ '%$ If statement of opinion, actionable only if based on specific facts expressallegation 5ame calling not enough '&$

If not defamatory on its face: 7 may plead additional facts to establishdefamatory meaning by innuendo or inducement '$ 7 must be a living person. orporations, partnerships etc may be defamed 'ii$ 4f or concerning the 7: a reasonable person would understand the defamatory language referred to 7'%$ If statement doesn2t refer to 7 on its face, 7 may plead *collo)uium- < extrinsic E.

'&$ If defamatory statement refers to all members small group, ea member mayestablish the *of or concerning- element by alleging he is a group member '$ 6ay not do this if 7 is a member of a large group '9$ If statement refers to some members of small group: 7 must show a reasonableperson would view statement as referring to 7 'iii$ 7ublication

by ( to a third person: ( intentionally 4> negligently communicated it to a rd person 'E.g., ( intends to send a letter to 7 accusing him of embeJJling butmista#enly misaddresses it. 1!$ '%$ Each repetition is a separate publication. EOE7TI45: magaJines, newspapersetc < all copies treated as a *single publication- '&$ Tip:no liability if defamatory statement said to ( directly 'E.g., 7roff tells student hehas syphilis even though factual allegation reflecting negatively on sex moralitynot defamation$ 'iv$ (amage to 72s reputation '%$ If libel: written1printed publication1in permanent form: general damages presumed= 7 need not prove special damages 'i.e., pecuniary loss$ G'&$

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If slander 'spo#en$: 7 must prove special damage 'emotional distress not enough

< 5EE( economic harm$, unless statement is slander per se < then damagespresumed, li#e libel '9$: a.

adversely reflects on one2s conduct in business1profession 'E.g., 7roff no lawschool = forged transcripts. !dversely reflects on competence = honesty.(amages presumed$ b. woman is unchaste 'sexism$ c. one has a loathsome disease < &: venereal disease or leprosy d. one is guilty of a crime involving moral turpitude '$ (istinguishing bw slander = libel: a.

If original defamation libel

any repetition, even oral

libel. b. 8ritten repetition of slander is libel. c. >adio = TD programs treated as libels if sufficiently %$ permanent &$premeditated = $ broadly enough disseminated 'v$

/alsityof (efamatory language '%$ 7 must show statement is false 'if true: 7 may have cause for IIE( or invasion ofprivacy$ 'vi$ /ault on the part of (: '%$ If !ctual malice '#nowledge or rec#less disregard as to truth or falsity$ damagesfor libel or slander per se are presumed. 'b$ If no

7 need not prove malice 'i$ If 7 is a private person w1matter of public concern 'what2s not public concern: ifsomeone embeJJled from company, cheated on taxes, has venereal disease.

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"ut matters of public concern: whether mayor ta#es #ic#bac#s, popular athletesuse steroids, army lies about casualities$ '%$ 7 must prove ( was negligent as to statement2s truth or falsity '&$

(amages: only for proved actual injury "AT if 7 proves actual malice, presumed= punitive damages available 'ii$ If 7 is a private person w1matter of private concern: '%$ 5o re)uirement 7 prove fault 'negligence or otherwise$ '&$ 7resumed damages for libel or slander per se under 0 punitive if showsmalice 'c$ (efenses to (efamation: 'i$

onsent: omplete defense 'same rules as w1intl torts$ 'ii$ Truth of (2s defamatory language: heavily tested 'iii$ 7rivileges '6ost heavily tested$ '%$

!bsolute 7rivilege: based on the spea#er2s status, an never be lost: >emar#smade during judicial proceedings, legislators in the 3ouse, executives in courseof duties, between spouses, compelled broadcasts, 0s1judges in proceeding,parties in legal proceeding '&$

Lualified 7rivilege may be lost: 5ot based on spea#er2s status. !rises wherethere is public interest in promoting candor. E.g., letters of reference, creditreporting, statements for police investigations. a. ;rounds subject to loss: %$ if statement not w1in scope of privilege 'E.g.,reference letter but 7roff says student has leprosy$ or &$ spea#er acted w1malice'intentionally, rec#less w1falsity < need reasonable belief in truth$ 'iv$ 6itigating /actors: not defenses but relevant to damages 'retraction, malice etc$"$ Invasion of >ight to 7rivacy %$ 0imitations on the right of privacy: (oes not survive 72s death1extend to family 5! corp &$

!ppropriation of 72s 7icture15ame

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: (2s unauthoriJed use of 72s name1picture for commercial advantage. 54 needfor ( to ma#e a profit. EOE7TI45: newsworthiness 'Sports Illust puts Tiger8oods on cover: o#$ $ Intrusion upon 72s private affairs1seclusion

: (2s prying1intruding on one2s private affairs1seclusion is objectionable to areasonable person 7 has a reasonable expectation of privacy. E.g., photosta#en in public places don2t )ualify. (oes not re)uire trespass to land 'E.g.,telescope$ 9$ 7ublication of /acts 7lacing 7 in a /alse 0ight: The widespread disseminaton 'publicity$ of a material falsehood about the 7 that is objectionable to a reasonable person even if ( believed it to be true 'a$ If matter is of public interest: 7 must prove ( acted w1malice 'b$

6ay overlap w1defamation 'consider & torts together$ but while defamationalways negative economic damages, false light may be positive traits dignatory damages 'ppl shunned me$ C$ 7ublic (isclosure of 7rivate /acts about 7:7ublic disclosure of private information about 7 objectionable to a reasonableperson (2s acts caused the invasion 'a$ even if the statement is true, Truth no defense 'b$ 7ossible /irst !mendment bar if issue of legitimate public interest1newsworthy:

E.g., not a tort to publish 4bama2s medical charts but tort to do same to privatecitiJens. "roadly interpret 'c$ 6atters in public records not *private- 'i$ E.g., *(ual life patterns.- 3eavily tested. 7 does something in % sphere hedoesn2t want other sphere to #now about. 7 *out- w1family = friends but not atwor#. Saturday he goes to gay rally = co@wor#er sees him = publicly discloseshe2s gay. "ut no 1! bc not a private factH conservative mayor found patroniJingnudist camp. 5ot private fact. G$ (efenses: onsent 'similar to defamation$"AT 54T T>AT3.$ 6isrepresentation%$

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Intentional 6isrepresentation1(eceit1/raud: Elements 'a$ (2s 6isrepresentation of a material fact 'i$

5o duty to disclose = opinion not actionable unless rendered by someonew1superior s#ill, selling property = li#ely 7 won2t uncover material information, orfiduciary relationship 'ii$ Silence not enough to constitute misrepresentation 'except if ( spea#s =utterance deceives 7 < must ta#e affirmative steps$. !ctive concealmentactionable 'b$ 6ade w1scienter: ( #new1believed the statement was false1groundless whenmade it 'c$

( intended to induce 7 to act1refrain from acting in reliance upon (2smisrepresentation 'd$ ausation: 7 actually relied on (2s misrepresentation 'e$ 72s reliance was justifiable: 'i$ >eliance not justified as to opinion1future events, but justified as to fact,statements of law 'if superior #nowledge, law enforcement$. 'f$

(amages: 7 must suffer actual pecuniary loss 'g$ 54 (efenses &$ 5egligent 6isrepresentation 'a$ (2s misrepresents a material fact 'b$ I5 a business1professional capacity 'c$ "reaching duty towards the particular 7 @ was reliance by the particular 7 contemplated 'e.g, preparing a stoc# report forclient, don2t expect it to be used by client2s brother$ K'd$ ausation '7 actually relied$ 'e$ 72s reliance was ?ustified 'f$

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(amages: limited to misreps made in commercial1business setting ($ 8rongful Institution of 0egal 7roceedings %$

6alicious 7rosecution @ elements 'a$ Institution of criminal proceedings against 7 'b$ termination in 72s favor 'c$ absence of probable cause 'd$ improper purpose 'e$

(amages 'prosecutor immune from liability$ &$ 8rongful ivil 7roceedings 'same elements for malicious prosecution$ $

!buse of 7rocess: %$ wrongful use of process for ulterior motive = &$ definite act or threat ofprocess against 7 to accomplish ulterior motiveE$ Interference with "usiness >elations @ elements

%$ Dalid contractual relationship1business expectancy bw 7 = a rd party &$ ( has #nowledge of the relationship1business expectancy $ (2s intentional interference induces a breach1termination ofrelationship1expectancy 9$ (amages C$ 7rivileges: where ( is properly attempting to obtain business1protect interests'esp if 7 has no existing +$III 5egligence

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;eneral 71/ ase for 5egligence %$ ( owes a duty to conform to a specific standard of conduct so as to not pose

an unreasonable ris# of harm toforeseeable 7s &$ ( breached that duty $ (2s breach is the actual = proximate cause of 72s injury 9$ 7 suffered damages C$ (efensesM "$

Element %: To 8hom is a (uty 4wed'Specific Standards of are = >easonably /oreseeable 7s$ %$ Examples of >easonably foreseeable 7s: %$ rescuers where ( negligent placedherself1rd person in peril. 5o duty of care owed to unforseeable 7s who are outside theJone of danger 'always lose: 6s. 7alsgraf 4ppositeside of platform$. &$

(uty of care owed to: 'a$

! viable fetus for failure to diagnose1perform surgery etc. "ut not for wrongful life'i$ 7s may recover damages for wrongful birth1pregnancy additional medicalexpenses pain = suffering but not ordinary child rearing expenses 'b$ Intended beneficiaries of economic transactions: rd party for whose economic1legal benefitbusiness transaction was made 'e.g., beneficiary to a will$ $ Standards of are: 'a$

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;eneral >ule1plain vanilla: (2s conduct must be that of a reasonable person account for same physicalcharacteristics under similar circumstances 'don2t account for drun#, mentallyill, dev disabled < objective stnd$ N'b$

If ( has superior #nowledge1s#ill: must act as a >77 w1that s#ill or #nowledge 'E.g., race car driver$ 'c$ If ( has particulariJed #nowledge even if ( is stupid must act as a >77 w1that additional #nowledge 'E.g., ( isstupid but #nows an intersection is particularly dangerous$ 'd$ 7rofessionals: must possess the #nowledge = s#ill of a member of the average member of thatprofession1occupation in good standing in similar communities. '6edical

specialists held to a national stnds. (octors have duty to disclose txris#s$.ustom of proff sets stnd of care. 'i$ Specialists: owe a duty of care to avrg to that of avrg member in similarcommunity of li#e specialists 'e$ hildren: Subjective stnd. 3eld to a stnd of a child 'age 9@%K$ of li#e age, education,intelligence = experience under similar circumstances. 'child under 9 lac#scapacity to be negligent = owe no duty of care$. +ids engaged in adult activitiesmay have to conform to adult stnd. Subjective stnd. 7ro ( bias 'if #id has no

experience, education or intelligence < really low. "illy tricycle$. 'f$ ommon arriers1Inn#epers: very high degree of care. 7 must be a passenger1guest. 'g$

!utomobile (river to ;uest: duty of ordinary care 'h$ Emergency situations: ( must act as a reasonable person under the same emergency conditions 'but if( created emergency, emergency won2t be considered$ 'i$ 4wners14ccupiers of 0and: Stnd of are (epends on 72s status as trespasser, licensee or invitee. 7 called*entrant, victim or 7.- ( is possessor but not always owner 'e.g., lessee$. Stps: %$onsider how entrant got hurt = &$ Status of entrant 'i$ If 7 is an A5(IS4DE>E( Trespasser

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: 5o duty of care owed bc e.g., of unforeseeable victim for dangerous conditions'static$ or activities 'ii$ If Trespasser is +nown1>easonably Should have been anticipated

: E.g., ppl have routinely used a portion of your land as a shortcut. '%$

!ctivities: >77 under similar circumstances. E.g., driving tractor. See hi#er.*(iscovered.- >77 not run over him '&$ (angerous onditions: 4we a duty to protect #nown1anticipated trespasser from artificial highly dangerous 'death, serious bodily harm, not slightly < twistedan#le$ concealed conditions #nown to possessor but not to trespasser. *dutyto protect from man@made death traps- a. 5o duty owed for natural conditions 'e.g., roc# slides, tree limbs, avalanches,rapids$. ondition must not be apparent. ( has no duty to inspect property b.

E.g., ( owns ranch. 8ooden bridge. 0oo#s safe. "ut ( #nows it2s not < can fallon canyon below. ( sees a hi#er. +nown trespasser. (uty to protect. '$ If 7 is a child: !ttractive 5uisance (octrine. *+I(E- a. ;eneral >ule: 4ccupier10and owner has a duty to exercise reasonable care toavoid a reasonably foreseeable ris# of harm to #ids caused by artificial conditions on the property if '9$: i.

There is a dangerous condition on the land that the owner is1should be aware of ii. The owner #nows1should #now #ids fre)uent he vicinity of the condition '*#idmagnet-$ iii. The condition is li#ely to cause injury 'bc of #ids2 inability to appreciate ris#. & yr v%9 yr w1pool next doorH doesn2t matter if #id read the warning$ iv. The expense of remedying situation is slight compared w1magnitude of ris# IIII Tip:child does not have to be attracted onto the land %P'iii$ (uty owed to licensee 'e.g., social guest$:one who is permitted to come onto property but who does not confer acommercial benefit '%$

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!rtificial15atural onditions: 7ossessor must warn1ma#e safe dangerouscondition 'serious bodily harm1death$ that2s concealed 'not readily apparent$ one that possessor has prior #nowledge. 5o duty to repair1inspect. *all #nowntraps on the land- 'not just man <made$. E.g., buy a rug that slips. (uty to warnguest. '&$

!ctive 4perations: duty of >77 under similar circumstances 'pour coffeeexample$ 'iv$ (uty owed to invitee:'%$

(efinition: Either come on to the land for purpose of conferring a commercialbenefit on he land possessor or or members of public for a purpose for whichland is held open to public 'E.g., go to wor#, to hospital to visit friend, airport topic# someone up$ '&$

!rtificial15atural onditions: 7ossessor must protect invitee from concealedconditions the possessor #nows about1would have discovered throughreasonable inspection. (uty to warn about or ma#e safe. 7rotect from all*reasonably #nowable traps on the land- a. 5o duty to warn1ma#e safe open = obvious conditions 'E.g., chair in theater.Fellow tape$ b. >easonable inspection: sufficient thoroughness = fre)uency to comportw1reasonable stnd '$

!ctive operations: duty of >77 under similar circumstances 'v$ 4ther situations: '%$ /irefighters = police officers: treated as licensees w1implied permission to enter.5ever recover for injuries related to inherent ris#s of job. E.g., don2t recover for (negligently leaving '&$ 0andowner who permits general public to use land for recreational purposes w1ocharging: not liable unless willfully = maliciously '$ (uties of 0essor = 0essee of >ealty: 0essee2s general duty to maintain premises.0essor must warn of existing defects he #nows1reasonably should #now of lessee not li#ely to discover on reasonable inspection. a. If lessor covenants to repair

lessor liable for unreasonably dangerous conditions b.

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If lessor volunteers to repair = negligently repairs

lessor liable i.

Tip: If guest of tenant is injured, tenant = landlord may be liable '9$ (uties of vendor of reality: 6ust disclose to vendee concealed, unreasonablydangerous conditions vendor #nows1reasonably should #now vendee not li#ely todiscover on reasonable inspection 'j$ Statutory Standard of are: 6ay replace general 0 duty of care if: i$ statute provides for criminal penalty ii$statute clearly defines standard of conduct iii$ 7 w1in protected class = iv$ statutedesigned to prevent the type of harm suffered by 7. If 7 succeeds

statutory violation is negligence per se 'duty = breach proved$ 'i$ & exceptions where violation of statute may be excused = not negligence per se:'%$ Diolation may be excused if compliance would cause more danger than wouldviolation 4> where compliance beyond (2s control 'E.g., ( driving on curvy road.Sign says Bno passing.2 7asses to avoid hitting child = 7 gets hit. 7 member ofprotected class = accident meant to be protected but bc compliance moredangerous, no negligence per se$ '&$

If compliance would be impossible under the circumstances 'E.g., ( has heartattac# = can2t stop at red light$ 'ii$ 72s !ssumption of ris# not a defense if 7 is member of protected classcontemplated by statute %%'iii$ E.g., 8oman comes home = smo#es dope. 3ad left gas lea#ing from stove.Statute prohibits possession of dope. Explosion. "urns down upstairs apt. 5otneg per se bc 7 not in protected class = statute not designed to prevent the typeof harm suffered by 7. '#$ ;eneral >ule re !ffirmative (uties: one does not have a legal duty to act 'i$ "AT @ if ( voluntarily underta#es to act, ( must do so as >77 under similar

circumstances. 'ii$

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;enerally no duty to rescue someone in peril '*4lympic swimmer can let babydrown-$ EOE7T: '%$ If ( has undertoo# to rescue someone, ( must do so as >77 under similar

circumstances a. Exception: States w1;ood Samaritan Statutes 'vary w1states$ may shieldrescuers '&$ ( has a duty to assist someone he has negligently1innocently placed in peril. '$ Special relationship bw parties: land possessor to invitee, contractual, family'even if not limited by blood < mother@in@law$, 7arent@child, common@carriers,inn#eepers, shop@#eepers 'also have duty to prevent injury to guests by rd

parties$ '9$ (uty to control rd persons: ;eneral rule < no duty. "ut if ( has actual ability authority to control apersons2 actions = #nows1should #now person is li#ely to commit acts re)uiringexercise of control, ( has a duty 'C$ (uty to rescue reasonable. 5ever obligated to put own life in jeopardy 'l$ 5egligent Infliction of Emotional (istress: 72s p1f case 'i$

( had a duty to act as a >771not cause emotional distress 7 was a >/ 7 inJone of physical danger 'E.g., *5ear miss,- crossing the street = missed by &feet$. 'ii$ "reach: ( breaches this duty by negligently causing a threat of physical impactthat leads to emotional distress 4> causing severe emotional distress that byitself is li#ely to result in physical symptoms 'E.g., rash, not nightmares butconstant tears o#$. >ationale: to rule out fraud 'iii$ ausation1(amages: (2s conduct must cause tangible physical injury 'e.g.miscarriage$ 'iv$ "ystander >ecovery 8hen !nother is 7hysically Injured: '%$ 5egligent ( causes a direct bodily trauma to a third person which causes 7 tosuffer emotional distress. 7 must show %$ she was closely related to rd

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person &$ was physically present = $ observed the injury contemporaneously '(didn2t have to #now, unli#e IIE( so discuss IIE( = 5IE( together$ $ Element&:

"reach of (uty when (2s conduct falls below the re)uired stnd of care. 3ow 7 demonstratesbreach 'Tip:

!lways say *( acted unreasonably because-$ %$ (2s failure to comply w1custom or usage: but not dispositive bc ct may find entireindustry acting negligently &$ ( violated an applicable statute $

>es Ispa 0o)uitor: '3eavily Tested$@

!pplies when 7 lac#s information 'a$ Elements '$: %$ The accident causing the injury is a type that would normally notoccur unless someone was negligent 'probability statement < don2t need to ruleout remote possibilities$ &$ negligence is attributable to ( 'can be shown if 7demonstrates the instrumentality causing the injury was in (2s exclusive control$. $ 7 was not negligent 'b$

Effect: 7 has made p1f case for (2s negligence. 7ermissibleinference of negligence. 5o directed verdict for (, but won2t grant directed verdictfor 7. 6ay grant (2s motion if 7 has failed to establish res ipsa present other E.($ Element : ausation: 7 must demonstrate both actual cause 'cause in fact$ = proximate cause%$ /actual cause %&'a$ “"ut for test- < The injury would not have occurred but for (2s act1omission 'Tip:use words Bbut for2$ 'b$ ?oint auses <

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I/ & (s @Substantial /actor Test: 8here several causes bring about 72s injury any onealone would have been sufficient to cause 72s injury all (s2 conduct is an actualcause if it was a substantial factorin causing the injury (s jointly liable

.E.g, ! = " camping C mi from ea other. "oth coincidentally leave camp firesburning. /ire burns down Fosemite. "oth substantial factors = jointly liable$. 'c$

!lternative auses !pproach : 8here there are two acts but only one causes the injury it is not possible toascertain which act caused the injury the burden of proof shifts to the ( each( must show his negligence is 54T the actual cause of 72s injury.Summers v Tice 'E.g., 0ucy = Efle shot off guns at same time. 4nly % ( hit /red2s eye but can2ttell who. "oth jointly liable unless can show other ( committed the harm$ 'i$

Tip:?oint causes v alternative causes: ?oint causes < only one act caused the injury.

!lternative causes: & acts but notpossible to tell which one &$ 7roximate10egal ause: 'Thin# fairness$

'a$ ;eneral >ule: ( is liable for all harmful results that are the normal foreseeable incidents caused by (2s act 'b$ 0iability in (irect ause ases: In a direct cause case, where there is an uninterrupted chain of events from (2snegligent act to the 72s injury 'no intervening forces$, ( is liable for allforeseeableharmful results,regardless of unusual manner or timingA50ESS outcome is frea#ish = biJarre 'E.g, ( running red light = hits carcarrying explosives. 8hole city burns$ 'c$ 0iability in Indirect ause ases: In an indirect cause case where a subse)uent intervening force combines w1(2sact to cause 72s injury: ( is liable for all foreseeable results caused byforeseeableintervening forces

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'i$ (ependent Intervening forces almost always foreseeable: %$ subse)uentmalpractice1med negligence but not rec#lessness foreseeable &$ rescuers2negligence $ defense of self1another1property 9$ subse)uent diseases caused

by wea#ened condition '*egg shell 7- < ( liable for all damages assocw1aggravation of existing condition, even if extent1severity of damagesunforeseeable$ = G$ subse)uent accidents substantially caused by original injury

< protection1reaction forces 'E.g., ( runs red light = crowded intersection.7edestrian brea#s leg. 4ther peds panic = trip over his face. ( liable for leg =face$ 'ii$ Independent intervening forces not foreseeable as a natural response1reaction to(2s conduct: %$ rd persons2 negligence, intentional torts = crimes &$ acts of ;od 'iii$

( not liable for unforeseeable results caused by unforeseeable intervening forcesbc intervening force is *superseding.- "rea#s the causal connection bw (2s initialnegligent act = 72s ultimate injuryE$ (amages:%$ Egg S#ull doctrine: If ( negligent, ( liable for all damages 7 suffers. E.g., cut 7but 7 has hemophilia. &$

7ersonal Injury damages $ 7roperty (amages: reasonable cost of repair or if conversion, the fair mar#etvalue at time of accident 9$ 7unitive (amages: if (2s conduct was *wanton = willful, rec#less or malicious- C$ 5on@recoverable items: interest from date of damage in 7I case attorney2s feesG$ 72s duty to ta#e reasonable steps to mitigate damages 'e.g, see# appropriate tx$%$ ollateral Source >ule: (amages not reduced just bc 7 received benefits fromother sources 'e.g., health insurance$ /$ (efenses to 5egligence '6"E: !ssume pure comparative negligence$ %$

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6inority 7ositions: 'a$ ontributory 5egligence: 8hen 72s own negligence contributes to her injuries, 72s right to recovery is

completely barred. Is not a defense to (2s intentional torts. 'i$ 0ast lear hance Exception: ! 7 may recover despite her contributory negligence. The person w1the lastclear chance to avoid an accident who was able to avoid the accident butwho failed to do so is liable for negligence. '%$ If 7 is in *helpless peril- ( will be liable if #new1should have #nown of 72spredicament '&$ If 7 could have extricated herself had she been attentive, ( must actually have

#nown of 72s predicament 'b$ Imputed ontributory 5egligence: ontributory negligence of a rd party will be imputed to 7 where the relationship bw the third party = the 7 issuch that the ct could find the 7 vicariously liable. E.g., master@servant, partner,

joint venture. 5egligence 54T imputed bw spouses, parents = child, = car owner= driver 'c$

!ssumption of the >is#: 7 may be denied recovery if she assumed the ris# of damages caused by the

(2s act in #nowing of the ris# voluntarily proceeding in the face of the ris#. 5ot adefense for intentional torts. 'i$ 7 may expressly 'express agreement, disclaimer$ or impliedly assume the ris#'where the ris# is one that an avrg person would reasonably appreciate$. 'ii$ 7 has 54T assumed the ris# if no available alternative or situation involves force,fraud or emergency 'iii$ 7ublic utilities = common carriers can2t limit liability by disclaimer 'iv$ 6embers of a class protected by statute not deemed to have assumed ris# &$ 6ajority: omparative 5egligence 'a$ 72s contributory negligence does not completely bar recovery but reducesavailable damages. 'i$

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6ajority of states: only permit 7 to recovery was e)ual to1less than (2snegligence but *pure- comparative states permit recovery no matter how great72s contributory negligence 'b$ Anli#e contributory negligence = assumption of ris#, comparative negligence

defense available to intentional torts, wanton or rec#less tortious conduct. 'c$ 5o 0ast clear chance doctrine 'd$ & #inds: 'i$ 7ure comparative fault: 7 always recovers so long as ( was negligent, even if72s negligent Q (2s 'ii$ 6odified comparative regime: 7 only recovers if 72s negligent was not greaterthan (2s

IDStrict 0iability: 0iability w1o /ault

!$ Elements of 71/ ase: %$

!bsolute duty exists on the part of the ( to *ma#e safe- &$ ( breached this duty $

(2s breach was an actual = proximate cause of 72s injury and 9$ (amage to 72s person1property "$ 0iability for !nimals %9%$ If owner2s animals trespass onto another2s land: owner is S0 for reasonablyforeseeable damage &$ S0 for 8ild !nimals: S0 to licensees = invitees for injuries caused by wildanimals provided injured person did nothing to bring about the injury. Even ifutmost care ta#en $ 54 S0 for (omestic !nimals: unless owner has #nowledge of the particularanimal2s dangerous propensities 'Tip:may still be negligent on first bite, but not S0$ 9$

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5o S0 to trespassers except based on intl tort groups for injuries inflicted byvicious watchdogs. C$ (efenses for (: 'a$

ontributory negligence unavailable if 7 failed to realiJe danger1guard against it.'b$ omparative negligence = assumption of ris# available. overs wanton, intlconduct. $ Altra haJardous1!bnormally (angerous !ctivities '5ot firewor#s$ %$ S0 for ultra haJardous activities if %$ the activity involves a ris# of serious harm topersons1property &$ the activity cannot be performed w1o ris# of serious harm no

matter how much care is ta#en = $ the activity is not commonly engaged in bythe particular community. Some cts consider value of activity = appropriatenessto location. &$ E.g, blasting, explosions, dynamite, blowing up, chemical1biological agents'chlorine, sulfuric acid$, nuclear energy, radioactive. 5ot firewor#s $ (efenses: 5ot contributory negligence. omparative neg = assumption of ris#available.D

7roducts 0iability: liability of a supplier of a defective product to someone injured'Tips:Essay < use all theories. 6"E: answer according to theory but if no guidance,according to S0$

!$ C Theories !vailable to 7 to sue on: i$ intent ii$ negligence iii$ S0 iv$ implied warranties of merchantability or fitnessfor a particular purpose = v$ representation theories 'express warranty =misrepresentation$ "$ 71/ ase for 7roducts 0iability < for any theory %$ 7 must show %$ a defect = &$ existence of the defect when the product left the(2s control 'inferred if product moved through normal channels of distribution$ 'a$ Tip:

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no re)uirement 7 be in privity w1(. !ny foreseeable ultimate user17, incbystander may recover &$ 3ow 7 Shows a (efect 'a$

6anufacturing (efect < If a product emerges from manufacturing different

!5( more dangerousthan products made properly. 7 must prove the product failed to perform as anordinary consumer would expect '( must anticipate reasonable misuse$ 'b$ (esign (efect < 8hen all products of a line are the same but all have dangerouspropensities. 7 must show: ( could have designed the product to %$ ma#e itmore safe &$ w1o seriously impacting its price or utility. 'E.g., crib slabs$. 'c$

Inade)uate 8arnings < 8hen a product is defective because of a manufacturer2s failure to giveade)uate warnings1instructions of dangers not reasonably apparent to users.'i$ 8arning must be understandable to average consumer 'E.g., Spanish, blind, notburied in boo#s$ 'ii$ 7roduct may still be defective even w1ade)uate warnings. E.g., /lammablepajamas. Still defective even w1warnings. 'd$

6iscellaneous: 'i$ 7roduct does not comply w1govt safety standard: establishes defectiveness 'butcompliance w1govt safety standards is not conclusive that a product is notdefective$ 'ii$ ( not liable for Bscientifically un#nowable2 ris#s @ dangers not foreseeable at timeof mar#eting %C'iii$ ( not liable for unavoidably unsafe products: if %$ danger is apparent = &$ nosafer way to ma#e the product. E.g., #nives $ 0iability "ased on Intent:%$

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>ule: ( will be liable to anyone injured by an unsafe product if ( intended theconse)uences1+S conse)uences were li#ely to occur. '5ot common: but ifintent, also consider battery$ &$ 8ho can sue: !ny injured 7. 5o re)uirement for privity $

(amages: compensatory punitive damages 'for intentional, wanton or rec#lessconduct$ 9$ (efenses: same as in intl torts case ($ 0iability "ased on 5egligence: Same p1f case %$ duty &$ breach of duty $ actual = proximate cause 9$damages %$ (uty: duty of care to any foreseeable 7, which includes users, consumers =

bystanders 'can sue$. 5o privity re)uirement. 'a$ 7otential (s: commercial supplies such as manufacturers, wholesalers =retailers &$ "reach of (uty shown by %$ (2s negligent conduct leading to the supplying of adefective product. 'a$ 5egligence stnd is same as in standard neg case. 7 can invo#e res ipsa lo)uitor.'b$

(ifficult to hold retailers = wholesalers liable for negligence bc can satisfy duty bycursory inspection $ ausation: !n intermediary2s 'e.g, retailer1wholesaler2s$ negligent failure todiscover a defect does not supersede original manufacturer2s negligenceA50ESS exceeds ordinary foreseeable negligence 9$ (amages recoverable: laim cannot be solely for economic loss. 6ust bephysical injury1property damage C$ (efenses: same as in general neg action. (isclaimers ineffective E$ 0iability "ased on S0 %$ 71/ case: %$ strict duty owed by a commercial supplier of a product &$ breach ofthat duty $ (2s breach is the actual = proximate cause of the 9$ damages 7suffered &$

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(uty: to supply safe products. 'a$ 7 must show that the product reached 7 w1o *substantial alteration- 'b$ 7otential (s: any commercial supplier, commercial lessors 'E.g, rental car

company, o leases computer offices$. "ut casual sellers not held S0 'c$ S0 does not extend to services 'even where product provided incident toservices, e.g., blood during operation < no S0. 7ossible neg. E.g., 7 at 6orton2s= chair collapses. 6orton2s not S0$. 'd$ 7rivity not re)uired: users, consumers = bystanders can sue any merchant indistribution chain may be S0 'E.g., 7 buys defective Toaster2s from 6acy2s.6acy2s = uisine !rt may be S0$ $ "reach of (uty: 'a$

( has breached duty to supply safe products if product is defective 'Supra < types of defect$ product2s defect ma#es the product unreasonably dangerous.( must anticipate reasonable misuse 'E.g., 7 falls off defective chair. ( can2tclaim chair was for sitting$. 'b$ >etailers held liable even if no opportunity to inspect 9$ (amages: 6ere economic loss alone insufficient. 5eed physical injury1propertydamage. C$

(efenses: 'a$ 6inority jxs: contributory negligence states, assumption of the ris# =unreasonable misuse 'b$ 6ajority: comparative negligence, unreasonable misuse /$ 0iability "ased on "reach of Implied 8arranties of 6erchantability = /itness 'inevery sale$: %G%$ Implied 8arranty of 6erchantability: goods are of average acceptable )uality generally fit for ordinary purpose forwhich goods are used &$ Implied 8arranty of fitness for a particular purpose

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: !rises when seller #nows1reasonably should #now the purpose for which thegoods are re)uired that the buyer is relying on seller2s s#ill = j2ment in selectingthe goods. $ 7otential (s: ts adopt a narrow version of horiJontal privity re): buyer, family,

household = guests can sue for personal injuries 9$ "reach: failing to live up to standards. 7roof of (2s fault unnecessary C$ ausation G$ (amages: 7ersonal injury, property damages = purely economic loss arerecoverable. $ (efenses: include assumption of the ris# = contributory negligence. (isclaimersineffective 'a$

A: /ailure to give notice of a breach is a defense ;$ 0iability "ased on (2s /ailure to 0ive up to its !ffirmative >epresentations '(uty= "reach$ %$ 7otential (s: any consumer, user or bystander. 'a$ If buyer sues: warranty must have been *part of the basis of the bargain- 'b$

If 7 not in privity 'e.g, bystander$: must show thatsomeonerelied on (2s representation 'c$ 8arranty extends to bailments = leases &$ (isclaimer effective 450F in unli#ely event it2s consistent w1warranty. ;enerallyineffective. $ Seller will be liable for misrepresentation of facts concerning a product where %$statement was a material fact concerning )uality1uses of goods 'not merepuffery$ = &$ seller intended to induce reliance by buyer = $ there was justifiablereliance 'representation was a substantial factor in inducing the purchase$.>eliance need not be victim2s < no privity re) 9$

!ctual cause: shown by reliance. 7C$

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(efenses: 5o assumption of the ris# if justifiable reliance. ontributorynegligence 'unless ( committedintl misrep$DI5uisance: 7rivate v 7ublic 5uisance

!$ 7rivate 5uisance %$ (efinition: ! substantial unreasonable interference w1another privateindividual2s use or enjoyment of property that he actually possesses or towhich he has a right of immediate possession &$ Substantial interference: must be offensive, inconvenient or annoying to averageperson. 5ot substantial if results merely from 72s hypersensitivity1specialiJed use

of own property $ Anreasonable: severity of inflicted injury must outweigh utility of (2s conduct. 'tsconsider neighborhood, land values, existence of alternative courses of conductopen to ($. 9$ Anli#e trespass of land: where landowners2 exclusive possession interfered w1byphysical invasion "$ 7ublic 5uisance: %$

(efinition: !n act that unreasonably interferes with the health, safety orproperty rights of the community 'e.g., using a building for drugs$. &$ >ecovery for private person for public nuisance only if suffered uni)ue damagesnot suffered by public at large $ >emedies %$ Asually 7s awarded damages. %&$ 7s may be awarded injunctive relief If damages unavailable or inade)uate. 'twill consider relative hardships to 7 = (. "ut ct won2t balance hardships if (2sconduct was willful1against an assertion of right by 7$ $

!batement by Self help 'a$ 7rivate nuisance: self@help abatement available after notice to ( (2s refusal toact. 4nly necessary force permitted 'b$

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7ublic nuisance: only public authority or private party who suffered some uni)uedamage can see# injunction or abatement by self@help ($ (efenses %$

0egislative authority 'e.g., Joning ordinance$ is persuasive but not absolutedefense &$ 5o actor is liable for all damage caused by concurrence of his acts w1others'e.g., %P steel mills polluting a stream. !ctor only liable for his mill$ $ ontributory negligence not a defense unless 72s case rests on negligence 9$ oming to a nuisance generally not a bar to 72s action unless came to nuisancefor sole purpose of bringing a harassing lawsuit

DII ;eneral onsiderations for all Tort ases !$ Dicarious 0iability 'Tip:3E!DI0F Tested$ %$ (octrine of >espondeat Superior : ! master1employer is vicariously liable for non@intentional tortious actscommitted by her servant1employee if the tortious acts occur w1in scope and

course of employment relationship 'E.g., ;rocer commits battery on a cl. Donsnot liable$ 'a$

!n EE ma#ing a minor deviation for own purposes 'in time, geography$ stillacting w1in scope but not if *frolic- < substantial deviation in time1geography. 'b$ Exception to the >ule that E> not liable for intentional conduct by employees: i$force authoriJed in employment 'e.g., bouncer$ ii$ friction generated by E> 'e.g,bill collector$ iii$ EE is furthering business of E> 'e.g, removing customers frompremises bc rowdy$ &$ E>s may be liable in negligent entrustment: in negligently selecting1supervisingEEs or Ind contractor $ Independent ontractor Situations: The principal will not be held vicariously liable for tortious acts of her agent if theagent is an independent contractor. 'Tip: 3eavily Tested$Exceptions: 'a$



If the independent contractor is engaged in inherently dangerous activities 'e.g.excavating, blasting$ 'b$ If the duty is non@delegable bc of public policy concerns 'e.g., duty to use due

care in building fence$ 'c$ 0and possessor vicariously liable if Independent ontractor hurts invitee 'E.g.,EE of Independent contractor #noc#s over plant that hits you. Fou2re at mall. 6allvicariously laible$ 9$ 7artners = ?oint Dentures: Dicariously liable if committed in scope = course of partnership1venture C$

!utomobile 4wner for (river : ;eneral rule is that auto owner not vicariously liable for tortious conduct of

another person driving the automobile. Exceptions: 'a$ 7rincipal@!gent relationship: E.g. running an errand for someone 'b$ /amily ar (octrine: many states, owner is liable for tortious conduct ofimmediate family1house hold members if driving w1owner2s express or impliedpermission 'c$ 7ermissive Ase: Some states impose liability on owner for damage caused byanyone driving w1owner2s consent 'd$

5egligent Entrustment: owner may be liable for own negligence in entrusting carto a driver G$ "ailor for "ailee: general rule < bailor not vicariously liable for tortious conduct of bailee. %K'a$ 5egligent Entrustment < bailor may be liable for own negligence in entrustingbailed object $ 7arent for hild: parent not vicariously liable for tortious conduct of a child but most statutesma#e parents liable for willful = intl torts of #ids up to a certain amount. 'a$ hild acting as agent for parents: vicarious liability if child committed tort whileacting as agent 'b$

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7arent liable for own negligence in allowing child to do something1negligentsupervision 'use dangerous object alone, if apprised of child2s conduct in past <liable for not using due care$ K$ Tavern #eepers: 'a$

0: no liability imposed on vendors resulting from vendee2s intoxication 'b$ 6odern 0aw: States enacted *(ramshop !cts- creating a c1a for rd person injured by intoxicated vendee based on ordinary negligence principles"$ 7arties: 6ultiple ( issues%$

?oint = Several 0iability: 8here & negligent acts combine to proximately cause an indivisible injury,each negligent actor will be jointly = severally liable 'E.g., liable to 7 for entiredamages incurred$. If damages are divisible, each ( is liable for only identifiableportion 'a$ (s acting in concert: 8here & (s act in concert = injure 7, each is jointly =severally liable for entire injury even if injury is divisible 'b$ Statutory 0imitations: 6any states abolished joint liability for %$ (s judged to beless at fault than 7s or &$ for all (s regarding noneconomic damages < ma#e

liability proportional to (2s fault &$ Satisfaction = >elease 'a$ Satisfaction: recovery of full payment. 4nly one satisfaction allowed. Antilsatisfaction, 7 may proceed against all jointly liable (s 'b$ >elease: !t 0 < release of % joint tortfeasor was a release of all joint tortfeasors.6ajority: release of one joint tortfeasor doesn2t discharge other tortfeasors $ ontribution = Indemnity: determine how joint tortfeasors allocate damages theymust pay to 7 'a$ >ule of ontribution: !pportions responsibility among those at fault !llows a (who pays more than his share of damages under joint = several liability to have aclaim against other jointly liable parties for the excess. 'i$

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0imitations: ontribution ( must be originally liable to 7 not applicable to intltorts 'ii$ 6ethods of !pportionment '%$

omparative ontribution: 6ost states. ontribution imposed in proportion torelative fault '&$ E)ual Shares: minority. !pportionment in e)ual shares regardless of degrees offault '$ Indemnity: Shifting the entire loss bw or among tortfeasors. Typical situations a. by + b. vicarious liability situations < E.g., truc# driver speeding. Injured party sues

company = driver. 7assive tortfeasor 'company$ can get indemnification fromactive 'driver$ c. Strict products liability: 'one who is passively negligent < retailer fails to

investigate v one who2s actively < 6acy2s from uisine !rt bc of toaster$ d. identifiable difference in degree of fault$ Survival = 8rongful (eath:%$

Survival of tort actions allow c1a to survive death of % parties. Asually torts toproperty torts resulting in personal injury survive. &$ Torts invading intangible personal interests: 'eg., defamation, invasion of right toprivacy, malicious prosecution$ expire on Dictim2s death %N$ 8rongful (eath: grant recovery for pecuniary injury result to spouse = next of#in. (ecedents creditors have no claim against amount awarded. >ecoveryallowed only to extent deceased could have recovered had he lived($ Tortious Interference w1/amily >elationships%$ 3usband 8ife: either spouse may bring action for loss of consortioum: loss ofdomestic services 'mowing lawn$, sexual intimacy = companionship caused by(2s intentional or negligent tortious conduct against other spouse &$

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7arent hild: 7arent may maintain action for loss of child2s services caused by(2s intentional or negligent tortious conduct. hild cant.E$

Tort Immunities%$ Intra /amily Tort Immunity: most states abolish husband@wife tort immunity =slight majority abolished parent@child immunity. &$ ;ovt Tort Immunity 'a$ /ederal ;ovts < under /ederal Tort laims !ct, AS has waived immunity fortortious acts but not for %$ assault &$ battery $ false imprisonment 9$ false arrestC$ malicious prosecution G$ abuse of process $ libel1slander $

misrepresentation = deceit = N$ interference w1+ rights 'b$ State = 0ocal ;ovt: varies 'c$ Immunity of 7ublic 4fficials: 7ublic officials carrying out official duties immunefrom tort liability for acts done w1o malice or improper purpose. "ut liability forministerial acts 'd$ haritable Immunity: 6ajority of jxs have eliminated

tort law outline_barbri intentional torts outline

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