Elements of Intentional Tort

1. Voluntary Act
2. Intent
3. Causation
4. Harm
5. No Defense or Privilege
Battery
Harmful or Offensive Contact of Another Person or Something
Closely Connected to Them
Assault
Intentional Act that causes another to experience reasonable
apprehension of an Immediate harmful or offensive contact
False Imprisonment
Confined or restrained to a bounded area against the plaintiffs
will, and the plaintiff knows of the confinement or is injured
thereby
Intent:
o Desire to confine or restrain plaintiff to a bounded area; or
o Knows that such confinement is virtually certain to occur.
IIED intentional infliction of emotional distress
Intentional or reckless act amounting to extreme and outrageous
conduct that causes plaintiff severe mental distress
Trespass to Land
Intentional act that causes a physical invasion of plaintiffs land
Nominal damages are recoverable
Trespass to Chattels
Intentional act by defendant that interferes with plaintiffs
chattel, causing harm
Must show actual damage, unlike trespass to land (value of loss
of use)
Conversion
Intentional act by defendant that causes the destruction of or a
serious and substantial interference with plaintiffs chattel

Defenses: POPCANS

Privilege; defense of Others, defense of Property, Consent,

Authority, Necessity, Self-Defense

Negligence
1. Duty
2. Breach
3. Causation
4. Damages
5. Defenses
Duty
An obligation, recognized by law, requiring the defendant to
conform to a certain standard of conduct for the protection of
foreseeable plaintiffs against unreasonable risk
Negligence Per Se
Statute creates an affirmative duty to take actions and the cause
of the action is the type of harm the statute is meant to protect
against
NIED negligent infliction of emotional distress
Direct Claims when a plaintiff is within the zone of danger
that is, the area in which he was at risk of being physically
injured and suffers some accompanying physical
manifestation of emotional distress
Bystander Actions physical harm occurs to a loved one, and the
third party bystander sues for his own emotional distress as a
result of the injury to the injured loved one.
o located near the scene of an accident
o suffered a severe emotional distress (shock) resulting from
the sensory and contemporaneous observance of the
accident; and
o had a close relationship with the victim
Land Possessor Liability
Trespasser:
o Unknown: No Duty
o Known: exercise reasonable care to protect from injury or
warn
Licensee:
o Friend: Warn of Known Dangers

o Duty includes exercise of reasonable care to discover

licensees of whom he is not aware
Invitee:
o Customer: Inspect and Make Safe
o enters onto defendants land for a purpose related to
defendants business activities or interests
o Duty to exercise reasonable care to prevent injuries to
invitees caused by activities conducted on his land
Attractive Nuisance:
o Standard of care: reasonably prudent person under the
same or similar circumstances
o Weigh burden and risk with the probability of actual injury.
o Children: what reasonable child of the same age,
education, intelligence, and experience would have done.
PA: Under 7 incapable of negligence; 7-14
rebuttably incapable of negligence; Over 14
presumed capable of negligence

Medical Malpractice
Most jurisdictions treat non-disclosure as a form of malpractice.
PA: failure to disclose cases are treated as actions in battery as
opposed to negligence
PA: failure to exercise reasonable care increased the risk of
injuries, doctor is liable.
Breach of Duty
Failure to conform to the necessary standard of care
Res Ipsa Loquitur
The event that caused plaintiffs injury was one which would not
ordinarily occur in the absence of negligence
It is more likely than not that it was defendants negligence that
was responsible for the injury causing event
Plaintiff was not responsible for the event that caused injury
Causation must be proved by preponderance of the evidence
Cause-in-Fact
But for the existence of defendants conduct plaintiffs harm
would not have occurred
Substantial factor: defendants conduct is the cause-in-fact of
plaintiffs injury if that conduct was a substantial factor in
bringing about the injury

Multiple Parties: multiple parties negligent, each of whom

contributes to plaintiffs harm, they are jointly and severally
liable (can recover fully from either)
o When multiple parties are negligent burden shifts to the
defendants to prove that their actions were not the causein-fact of plaintiffs injury

Proximate Cause
In addition to being a cause-in-fact of plaintiffs harm, the
defendants conduct must also be the proximate, or legal, cause
of the injury
Test for Proximate Cause is foreseeability
Superseding Cause
An unforeseeable, intervening cause that breaks the chain of
causation between the initial wrongful act and the ultimate
injury.
o Ex: Acts of God, Intentional Torts of 3rd parties, Criminal
acts of 3rd parties, Extraordinary forms of negligent conduct
If unforeseeable defendant not liable (superseding)
Intervening Force
Defendant will be held liable for harm caused by foreseeable
intervening forces
Foreseeable Intervening Causes: Negligent Rescue, Subsequent
Medical Malpractice, Subsequent Disease, General Negligence
If foreseeable defendant remains liable
Damages
A plaintiff must affirmatively prove actual damages. Nominal
damages are not available, and punitive damages generally are
not allowed
Contributory Negligence
Negligent plaintiff is barred from recovery
Minority rule
Last clear chance rule a negligent plaintiff can still recover if he
can show the defendant had the last clear chance to avoid the
injury and failed to do so
Only use if fact pattern says this is a contributory negligence
jurisdiction
Comparative Negligence
Negligent plaintiffs recovery will be reduced by the percentage
of his own negligence

Majority Rule Pure Comparative Negligence

No Last Clear Chance Doctrine
Pure: can recover eve if Plaintiffs negligence exceeds
Defendants
Modified: recover only if plaintiffs negligence is less than
defendants

Defenses
Plaintiff assumes the risk of injury from defendants negligence
if plaintiff expressly or impliedly consents to undergo the risk
created by defendants conduct.

Strict Liability
Defendant is liable for injuring plaintiff whether
or not defendant exercised due care.

Categories: Possession of Wild Animals or Animals known to be

dangerous and Abnormally Dangerous Activities

In order for strict liability to apply, the harm to the plaintiff must
have resulted from the type of danger that justified classifying
the animal or activity as dangerous.

Products Liability
Proper Plaintiff
Proper Defendant
Defect
Proper Plaintiff:
Injured while using a defective product
Purchasers and consumers, and their families friends, guests,
and employees
Proper Defendant:
Anyone in the chain of custody from manufacturer to the retailer,
of the defective product
Proper defense is improper use (misuse) of product but not if the
misuse was foreseeable.
Defect:
Product in a defective condition unreasonable dangerous
Absence of Warnings: product considered dangerously defective
when it is accompanied by an inadequate warning

Cause-in-Fact: defect that injured plaintiff was in existence at the

time it left defendants control
Warranty Theory: Plaintiff must establish that a warranty existed
as to the product and that the product does not conform to the
warranty.

Nuisance
Public Nuisance
An unreasonable interference with a right common to the general
public. Must:
o Have right to recover damages
o Have authority as a public official or public agency to
represent the state or a political subdivision in the matter;
or
o Have standing to sue as a representative of the general
public
Private Nuisance
A thing or activity that substantially and unreasonable interferes
with plaintiffs use and enjoyment of her land
Gravity of the harm to plaintiff vs. the utility of the defendants
activity
Defense: actions compliant with local statute or zoning
ordinances not nuisance
Defamation
Defamatory statement of fact, not opinion
Publication to any 3rd party who reasonably understands
Damages are presumed
Plaintiffs Standard of Proof
Public Figure Malice
Private Person
o Public Concern Negligence
o Private Concern Publication Only
Defamatory Message: lowers plaintiff in the esteem of the community,
or discourages third persons from associating with him.
Publication: defamatory message communicated to a third party
Slander: Spoken defamatory message
Slander Per Se: so harmful that damage from the very utterance

Crime of moral turpitude

Loathsome disease
Incompatible with proper conduct of his business, profession, or
office
Falsely impute unchastity to a woman
PA: charges of communism and statements involving business
failure, insolvency, financial embarrassment, or bad credit.

Libel: Defamatory message recorded in a permanent form

Defenses:
Truth
Absolute Privilege (legislature on the floor or during hearings;
judicial proceedings)
Qualified Privilege
Malice:
Knowing falsity or reckless disregard for the truth
Invasion of Privacy
Unreasonably intrudes into plaintiffs seclusion
Must be one that would be highly objectionable to a
reasonable person
Disclosure of Private Facts; Portrayal in a False Light
(truth is a defense)
Economic Torts
Intentional Misrepresentation (Fraud)
A false, affirmative assertion;
Active concealment; or
An omission of fact (failure to disclose)
Interference with Contractual Relations
Inducing breach of contract or interference with contract
Miscellaneous Tort Concepts
Vicarious Liability describes liability imposed on a defendant because
of his relationship with the actual wrongdoer that caused injury to the
plaintiff
Employer/Employee (Respndeat Superior) employer liable for
injuries cause by negligence or strict liability of an employee, if
wihin scope of the employment

o Intentional torts committed by an employee generally not

given respondeat superior
Independent Contractor: defendant generally is not liable for
torts committed by someone he has engaged as an independent
contractor (no right to control the activity of the contractor)
o Known inherently dangerous activities conducted by
contractor may create vicarious liability