TORTS

Intentional
Voluntary
Intent: Desire/Substantial Certainty
o Transferred Intent: Assault, Battery, False Imprisonment
Causation
Harm
No Privilege/Defense
1.
2.
3.
4.

Battery
Assault
False Imprisonment
IIED
a. 3rd Party: Close & D aware / Present & Actual Bodily Harm
5. Trespass to Land
6. Trespass to Chattel
7. Conversion
Defenses- POPCANS
Privilege
Consent: Mistake, Fraud, Duress, Incapacity, Criminal Statute
Self Defense
Defense of Others
Defense of Property
Necessity
Authority: Arrest, Shopkeepers Privilege, Discipline

Battery
1. Intent
2. Harmful / Offensive Contact
3. Person / Something close to P
Assault
1. Intent
2. Reasonable Apprehension: P Aware, Feasible, Know Ps Sensitivity
3. Imminent Battery
False
1.
2.
3.
4.

Imprisonment
Intent
Confinement
Against Ps Will
P Knows of Confinement / P Injured by Confinement

IIED
1. Intent/Recklessness
2. Extreme & Outrageous conduct
3. Causation
4. Severe Emotional Distress
Exceptions: D is Common Carrier/Innkeeper or D knows Ps particular
vulnerable
Trespass to Land
1. Intent
2. Entry
3. Ps Land
Remedies: Damages, Restitution, Injunction
Trespass to Chattel
1. Intent
2. Interference
3. Ps Chattel
4. Harm- enough dispassion that is significant
Remedy: Replevin
Conversion
1. Intent
2. Dominion & Control
3. Substantial Interference
Remedies: FMV @ time of Conversion / Replevin
5.

Duty Breach
Defenses

Negligence
Causation (Actual & Proximate) Damages

Duty
Foreseeable P
No Affirmative Duty to Act
o Neg Omission- failure to do something that create harm
(Stop Sign)
o Nonfeasance: failure to act (Assumption No Duty)
Exceptions: Rescuers (Good Samaritan Statute-Gross
Neg)
Special Relationship- even social drinking
buddies
Special Relationship- Creates Duty
o Employer Employee
o Inkeeper Customer
o School Student
o Parent Child
o Biz Customer
o Jailer Prisoner
Duty to Control 3rd Parties: No Duty presumption
o Special Relationships (above)
o Exception:
Dram Shop Acts- Bar knows/should know person
drunk
Negligent Entrustment: Misfeasance
D gives something to someone D known /
should know should not be in control of that
thing (Dad give gun to C)
Govt Entities
o Proprietary- Duty (govt= private actor)
o Discretionary- NONE (Judgment & Allocating resources as
govt agent)
o Ministerial: Duty
Public Duty Doct
Utility: must have privity
Land Possessor Liability: Owner/Occupier
o Invitee: RC, Discover, Warn
o Licensee: RC, Warn of Known AC, P Unlikely to Find, No
Inspect
o Trespasser
Unknown: NONE (avoid willful/wanton harm)

 Cutting down trees

Known: RC, Warn of Hidden, D is Aware, P Unaware
Frequent: RC, Warn of Hidden, D is Aware, P Unaware
Child: Attractive Nuisance
Artificial condition
Should C Appreciate Danger
Foreseeable risk C will Trespass
D Knows of Dangerous condition
Risk Outweighs Utility
Privileged Entrants: Police
P NOT on Ds Land: RC Protect Unreasonable,
Dangerous Artificial condition, NOT for Natural
conditions
LL & T: NONE for Patent
Latent Duty to Warn/Repair
3rd Parties: Open to Public Exception
Discover & Repair Natural/Artificial condition
Sellers of Land: Warn of Hidden Dangerous
Natural/Artificial cond
D Knows/Should Know P wont discover
Conceal: Duty until P Finds & Repairs
Builder: Defects in Construction

o
o

NIED
Direct: Zone of Danger & Physical Manifestation
o Exceptions: Announcing Death of Loved One / Mishandling
Corpse
Bystander: close relationship & Zone of Danger

Standard of Care
Reasonably Prudent Person in Like Circumstances
o Exception: How RP Behave in Emergency situation/
Physical Conditions
o Children: same Age, Education, Intelligence, Experience
o Negligence Per Se
Type of Injury statute seeks to Prevent
Member of class Intended to Protect
Violation NOT excused
Result in Harm greater than Harm stat
produced / Impossible
Need Criminal Penalty for violating the statute
Imprisonment/ Fine

Exception: Licensing Statute / Emergency

Professionals:
Must comply w/customary practice in that
Industry w/ those in Good Standing
Lack of Informed Consent
Standard of Materiality: Disclose all Risks a
Reasonable Patient would want to know
Legal Malpractice: If it had not been for Atty
malpractice the P would of prevailed in the
underlying action

Breach
Res Ispa Loquitar
o Event would NOT occur w/out neg
o More Likely than not Ds neg caused event
o P not responsible for event
Cause in Fact (Actual Cause)
o But For
More likely than not but for the Ds negligence P
would not have been injured
o Loss of Chance:
P must show more likely than not But For Drs
malpractice she would not have lost her 40% chance
of survival
o Substantial Factor: 2Ds Caused & Each could have caused
o Alternative Liability Theory: 2 Ds Independently caused &
P cant say
Small # of Ds
Each D is Negligent- acted unreasonable
All Ds been sued
Burden shifts to Ds
Proof: Guest & Slip-n-Fall
Proximate Cause (Legal Cause)
o Foreseeable P Zone of Danger
o Eggshell Skull Rule
o Unforeseeable Type of harm
o Unforeseeable Manner of harm
Superseding Cause: Break causal link
Act of God- unforeseeable
Criminal act of 3rd
Intentional Tort of 3rd
Conduct Grossly negligent
Intervening Acts: foreseeable (NO break)
Subsequent malpractice- aggravating Ps
condition
Diseases / Accidents from original injury
Rescuers Neg & Injuries

Damages
Real injuries
Compensatory: return P to pre-injury position
o Must be Foreseeable
o Reasonable Certain
o Not Unavoidable
o Special Damages: Past, Present, Future expenses (cost
repair, loss wages)
Collateral Source Rule
o General Damages: pain & suffering
Punitive: must be reckless and malice
o CanNOT be more than 10% than Compensatory
Unconscionable
o Exemplary Damages: punish D and make example
Defenses
Contributory: Last Clear Chance
Comparative
Assumption of Risk- Firefighter Rule
o Knowledge of Danger
o Appreciate Danger
o Voluntarily subjected to danger

STRICT LIABILITY
Animals
Wild: Tres to Land/Chattel likely to escape (livestock)
Domestic: Known Dangerous Propensities
Unknown Trespasser: NO liability
Trespassers: Negligence Duty to Warn/Protect
Watchdogs: Strict to even Trespassers (known/unknown)
P must prove:
o Nature of Ds activity imposes an absolute duty to make
safe
o Dangerous aspect of activity was the Actual and Proximate
Cause of Ps injuries
o Damages
Abnormal Dangerous Activities
Risk of Serious Injury
CanNOT eliminate by due care
NOT ordinarily constructed in area
Proximate Cause Issue: look for superseding acts
Defenses
Assumption of Risk
Comparative Negligence

STRICT PRODUCTS LIABILITY

Proper D: NOT one time seller

Defect:
o Manufacturing- More Dangerous than Intended
o Design
Consumer Expectation Test:
P argue Defect More Dangerous than Ordinary
consumer intended using the product for its
intended use
Danger Utility Test
Danger it threatens outweighs its utility to society
o Defective if alternative design could have
reduced danger @ about the same cost
o Extraordinary Social Utility: vaccines
Hindsight Negligence Test

o Absence of Warning
Cause in Fact
o Defect After left Ds Control
o Warning: No injury if Warning / Adequate Warning
Proximate Cause
o Foreseeable: Neg handling of product by 3rd After leaves Ds
Control Intervening
o Unforeseeable: 3rd criminal/intentional tort Superseding
Learned Intermediary Doctrine
Damages: Personal & Property
o If defect is only to product itself Breach of Warranty
Defenses:
o Misuse
o Ps continue use NO practical Alternatives NOT voluntary
NO defense
o Alteration Unforeseeable by someone in Chain of Distribution
o Comparative Negligence

PRODUCT LIABILITY ON A NEGLIGENCE THEORY

P must establish Greater Personal Degree of Fault
Selling used goods
Repairing used goods
Leasing real property
Providing services
Franchisors
Duty: Reasonable Due Care
Breach: each D failed to act w/Due Care
Res Ispsa Loquitor
Failure to Inspect & Discover Defect if RP would have realized
product Dangerous in Normal Use
If Reputable Manufacturer No Breach if NO inspect
Cause in Fact: Actual Cause
But For
Substantial Factor
Alternative Liability Theory
Proximate Cause
Eggshell Plaintiff
Superseding Act
Intervening Act
Damages
Personal & Property
Defenses
Comparative
Contributory: Last Clear Chance
Assumption of Risk

PRODUCT LIABILITY ON WARRANTY THEORY

Express Warranty
Implied Warranty
o Merchantability: Merchant
Privity & Notice requirements
o For Particular Purpose
Damages: Economic Loss
o Loss of profits, obtaining replacement product
Defenses:
o Disclaimers
o Failure to Notify Seller
o Comparative / Contributory
o Assumption of Risk

NUISANCE
Public
Unreasonable Interference
Right Common to General Public
P to recover damages suffer different harm than rest of public
o Authority & Standing
Private
Substantial & Unreasonable Interference Not unusually
sensitive
Ps Use & Enjoyment of Land
Defenses
Contributory unless harm intentional/reckless
Assumption of Risk
Remedies- NO $ adequate
Prohibitory Injunction: refrain from doing particular act
Mandatory Injunction: to DO particular act high scrutiny
Temporary Restraining Order: Notice (10-20 days) before case
Permanent Injunction: prevailed on merits (final judgment)

DEFAMATION
1.
2.
3.
4.
5.
6.
7.

Defamatory message
Certain Pleading Problems
Publication of message
Type of defamation
Damages
CL Defenses
Constitutional Issues

Defamatory Message
Lowers P's esteem in community
Discourages 3rd persons from associating w/P
Holds P up to Hatred, Ridicule, Contempt, Scorn
Must be fact
o If a RP would interpret a statement as one of fact,
considering the context & nature of the utterance
Pleading Problems
Living person
Small Group- every member bring a claim
Publication
P must prove:
o Reasonable 3rd person received the defamatory message
o Understood it to refer to the P.
Republication
Type of Defamation
Libel: written
o Special Damages: Specific Economic Loss
Slander: spoken
o Special Damages: Specific Economic Loss
Exception to Special Damages Slander Per Se
o P unfit to perform in his trade or profession
o P commission of a crime of moral turpitude / infamous
punishment
o Falsely stating Ps has sexually transmitted disease
o Lack of chastity in a woman
Damages
Pecuniary: $ losses suffered by P due to injury to his reputation
General: humiliation/loss of friends
Punitive: evil intent
CL Defenses
Truth: P proves falsity
Absolute Privilege

o Communication btw Spouses

o Statements on a Legislative Floor
o Statements made by High Ranking Public Official
Made in Course & Relevant to duty
o Statements made During judicial proceeding
Qualified Privilege: appears reasonable necessary to
protect/advance the Ds own legitimate interests
o Ds Burden to establish
o Loses if:
Acts out of Malice
Exceeds Scope of the privilege
Does NOT believe the truth of defamatory message
Consent
Constitutional Issues
Whats the Status of the P?
o Public Official, Public Figure, Private Figure
Whats the Subject matter?
o Public vs. Private
What Damages does P seek?
Whats the Status of D?
Public Official
Police officers- substantial responsibility over government ops
Actual Malice: Knowledge of Falsity / Reckless disregard of the T/F
of stat
o Known False/Entertained serious doubts about its truth
(C&CE)
Public Figure
Household names/voluntarily injected themselves to be drawn
into a particular public controversy limited
Actual Malice- C&CE
Private Figure
Pubic Matter: Negligence
o To get Punitive must prove Actual Malice (C&CE)
Private Matter: publication

INVASION OF PRIVACY
1.
2.
3.
4.

Intrusion into Seclusion

Commercial Appropriation of Identity/Likeness
Public Disclosure of Private Facts
Portrayal in a False Light

Intrusion into Seclusion

D Intentionally Interferes in Ps Zone of Privacy
D Unreasonable Intrudes into Ps Sphere of Privacy
NO Publication required
Offensive to a Reasonable Person
Damages:
o Compensatory: mental distress unaccompanied by physical
injury
o Punitive
NOT a Defense: Truth, Celebrity Statue, Newsworthiness
Commercial Appropriation of Identity/Likeness
Unauthorized use of Ps Identity/Likeness for Ds Commercial
Advantage (Profit)
P Burden: NO Consent
Connection w/Promotion of a product/service
Damages:
o Compensatory: reasonable value of the use of the Ps
Id/Likeness
o Punitive
Truth NOT a Defense
Public Disclosure of Private Facts
P must prove:
o Disclosure
o Private Facts
o Disclosure is High Offensive to RP
o Not Newsworthy (no legitimate public concern)
Look for Passage of Time
Publication to Public Needed
Constitutional Issue: D get from Public Records Not Liable
Damages: Compensatory: mental distress unaccompanied by
physical injury
Defenses: Celebrity Status, Newsworthiness
Portrayal in a False Light

P must show:
o Publication to substantial # of people
o Of False Info
o Divulging info is Highly Offensive to a RP (lower degree
than defam)
o Malice
Truth is a Defense
Defenses to Invasion of Privacy
1. Truth
a. NOT for Appropriation/Intrusion into Seclusion
2. Consent
a. Defense to:
i. Intrusion into Seclusion/
ii. Public Disclosure of Private Facts/
iii. False Light
b. P must prove LACK of Consent in Appropriation of Id/Likeness
3. Privilege
a. Absolute Privilege
i. Communication btw Spouses
ii. Statements on a Legislative Floor
iii. Statements made by High Ranking Public Official
1. Made in Course & Relevant to duty
iv. Statements made During judicial proceeding
b. Qualified Privilege: appears reasonable necessary to
protect/advance the Ds own legitimate interests
i. Ds Burden to establish
ii. Loses if:
1. Acts out of Malice
2. Exceeds Scope of the privilege
3. Does NOT believe the truth of defamatory
message

WRONGFUL INSTUTION OF LEGAL PROCEEDINGS

1. Malicious Prosecution
2. Wrongful Institution of Civil Proceedings
3. Abuse of Process
Malicious Prosecution
Improper Motive & No Bases
Lack Probable Cause
Defense: Privilege- officers of court
Wrongful Institution of Civil Proceedings
D Intentionally Misuses Civil Process for Improper Motive
P Does not need to prevail

ECONOMIC TORTS
1.
2.
3.
4.
5.

Intentional Misrepresentation (Fraud/Deceit)

Negligent Misrepresentation
Interference w/Contractual Relations
Interference w/Prospective Advantage
Injurious Falsehood

Intentional Misrepresentation
P must prove
o Intentional Material Misrepresentation
o Of Past/Present Fact
o Made w/Scienter
o P Justifiably Relies
Failure to Disclose Info NOT Basis UNLESS:
o Fiduciary relationship
o D make Ambiguous statement
o D makes statement thinks is True, BUT Finds Out is False
o D does NOT Intend Reliance, BUT P was relying on D
o P reasonable expects disclosure
Scienter: D made assertion Knowing it to be False/ No idea
whether T/F
Negligent Misrepresentation
D has NO duty to avoid negligent infliction of pure economic loss
Exception: Special Relationship (Accountants/ Lawyers Will
Drafting)
o 3rd party relies on D & suffers Economic Loss
Interference w/Contractual Relations
D Knows there is a K btw P & 3rd
D acts w/Purpose of having contract Breached/Harder to Perform
Interference w/Prospective Advantage
D Knew of Prospective Advantage
Acted to Interfere for Improper Motives
Expectancy interests of the future contractual relations, such as
Obtaining Employment/Opportunity to obtain Customers
D Can:
o Cut Rates/Prices
o Allow Discounts
o Enter into Secret Negotiations Behind Ps back
o Refuse to Deal w/P
o Threaten to Discharge Employees

Injurious Falsehood (Trade Disparagement)

P must prove:
o False statement
o Actual Malice
o Published/Told 3rd party
o Causing Specific Economic Injury to P
Defenses:
o Consent
o Privilege: Absolute & Qualified

VICARIOUS LIABILITY
Respondeat Superior
Negligence/Strict Liability of Employee
W/in Scope of Employment
o Detour: minor- still w/in scope
o Frolic: major deviation- Outside scope
Intention tort by employee
Exception: employee believes he is acting to
benefit Employer
Negligent Hiring
o Duty: Reasonable Care in the selection of its employees
Past Jobs
o Breach: Failure to investigate employee
o Causation: failing to check employees background could
have prevented Ps injuries
o Damages: Ps injuries
Negligent Training & Supervision
o Duty: act as ordinary prudent person under the
circumstances
Employer train their Staff concerning their
Responsibilities of Removing Dangerous conditions
o Breach: No Training
o Causation: Actual & Proximate
o Damages: Ps Injury
Independent Contractor
Generally D NOT liable
IC v. Employee: Look to Control
D held Vicarious Liable where:
o Contractor undertakes a Duty the law does not permit to
be Delegated
Keeping street in good repair, maintaining fence
around excavation, owner-occupiers duty to have
safe premises for Biz Invitees
o Contractor engages in Inherently Dangerous Activities
Joint Enterprise
Partners & Joint Ventures Vicarious liable to each other
o If w/in scope of p/jv
o Joint Venture: limited in scope & duration
Parent Child
Not vicariously liable

Liable for Negligent Supervision/Entrustment

Abatement/Survival of Action & Wrongful Death

CL: If P died during Pending law suit- law suit died
Survival Statutes: allows action to Continue After Death by Estate
Wrongful Death Statutes: Allow statutory heir to bring action for
their Injury
o Loss of Companionship
Loss of Consortium
o Loss of comfort, loss of sexual relations
o Family members can sue for
o 6 months in the hospital

FL LAWS
Punitive Damages
FL has a Cap
Greater than $500,000 or three times the amount of
Compensatory damages
NO cap if D is Intoxicated
FL Abolished Joint & Several Liability
Malpractice
1st obtain: a Written Opinion by a Medical Expert
Serve Notice on D by certified mail at least 90n days Before suit
w/in 90 days Ds Insurer must deliver to P a rejection of claim,
offer to settle, or offer to admit liability and seek arbitration of
damages
w/120 days of filing- all parties required to attend in-person
mandatory mediation if arbitration not agreed
P may Refuse an offer of voluntary binding arbitration and go to
Trial
Negligence: Duty, Breach, Causation, Damages
o Duty: act as reasonable person
o Breach: Res Ipsa Loquitor
o Good Samaritan Law: protects hospitals and doctors from
liability in emergencies
Unless, conduct is Reckless
FL No One Bite Rule
Owner Strictly Liable regardless of Former Viciousness/
Knowledge of Propensities
Liable to P in Public/Private Place including Owners property
No liability if P Provokes animal