TORTS

EXAM TIP:Checklist for every torts question:

Who is the plaintiff?
Who is the defendant/who are the defendants? Who are the responsible parties?
What is the plaintiffs injury or injuries?
What legal theory/theories can the plaintiff assert?
Make sure that it is a torts question.

I. INTENTIONAL TORTS
A. Elements of Intentional Torts Checklist:
(1) Voluntary Act
(2) Intent
(3) Causation
(4) Harm
(5) No privilege or defense
1. Voluntary Act
a. Something that is conscious or willed, as opposed to purely reflexive. (Acts are not voluntary if they are
a product of pure reflex or if the Defendant is unconscious when the act is performed.)
EXAMPLE: If Tom pushes Dirk into Priscilla and Priscilla sues Dirk, there is no liability for an intentional tort
because Dirk did not engage in any voluntary act.
EXAMPLE: Dina, during a sudden epileptic seizure, hits Poindexter. While Dina did not intend the harm,
there is also no liability because there was no voluntary act by Dina.
2. Intent
a. For most intentional torts, intent is established if the defendant either:
(1) Desires that his act will cause the harmful result described by the tort; OR
(2) Knows that it is substantially certain that such a result will occur.
3. Causation
a. As to intentional torts, the defendants act or a force set in motion by that act must cause the
plaintiffs injury. (cause in fact).
b. Proximate cause in intentional torts: It is not a problem the extended consequences rule holds
intentional tortfeasor liable for the full extent or injuries whether they are foreseeable or not. (The
defendant is responsible for all consequences whether foreseeable or not.)
4. Harm
a. Varies based on the kind of intentional tort. Some intentional torts require proof of separate harm, some do
not.
b. Ways to establish harm in intentional torts:
(1) establishing elements of the tort
(2) prove specific inquiry
5. No Privilege or Defense
HYPOTHETICAL: Dell sees his archrival Pratt walking across the street. Although Dell thinks its unlikely he can
throw a stone that far, Dell picks up a nearby stone and throws it at Pratt. Has Dell acted with purpose/intent
such that he may be found liable for tortious conduct?
We have intent, even if unlikely to occur, it was what Dell's purpose and desired
HYPOTHETICAL: Darla, due to boredom, decides to shoot her BB gun into a passing commuter train. She
doesnt want to hurt anyone, but knows that the trains at that hour will be packed with passengers. She shoots
her gun at a full passenger car passing by her, hitting Plax. Has Darla acted with intent such that she may be
found liable for tortious conduct?
Plax has to show that D knew it was practically/substantially certain that the result would come about.
Intent is subjective- whats in the mind of D? If the fact said that she was a good shooter and unlikely to
miss, then there was no intent.
HYPOTHETICAL: Six-year-old Brian Dailey pulls a chair out from where he knows Mrs. Garrett is sitting. If Brian
knew that it was substantially certain that this would cause Mrs. Garrett to fall to the ground, has he acted with
intent?
HYPOTHETICAL: Delbert is late for his Torts class. Without looking where he is going, he runs out of the library
and collides with Parker. Has Delbert acted with intent?

B. BATTERY
1. A battery arises where a defendant: intentionally causes a harmful OR offensive contact with the s body
or with something closely physically connected thereto. (children are liable if they can form the intent.
Parents are not vicariously liable for the torts of your children, unless provided by law).
a. Elements:
(1) Intent
(2) Harmful or offensive contact
(3) Person or something physically closely connected to that person
2. To establish intent, plaintiff has to show either that
a. desired to cause an immediate harmful or offensive contact; OR

1
 b. knew such contact was virtually substantially certain to occur.
c. Be sure to distinguish intent from motive.
EXAMPLE: Pete comes into bar review and sits next to Dawn and says my neck is killing me. Dawn says
that he has decided to learn how to become a chiropractor and offers to help. Pete refuses but Dawn grabs
his neck and pulls. Whether Pete feels better or not, it is a battery and Dawn had intent.
d. Transferred Intent
(1) If a acts with the necessary intent to inflict certain intentional torts, but for some reason causes
injury to a different victim than intended, the defendants intent is transferred to the actual victim.
(2) This transfer of intent applies only to: assault, battery, false imprisonment, and trespass to
land/chattels.
TRANSFERRED INTENT EXAMPLE 1(WRONG VICTIM):
Dorkus throw a rock at Xavier, but the rock misses Xavier and hits Pompador instead. Pompador
sues Dorkus, and Dorkus would be liable because he intended to commit a battery on Xavier.
e. Insanity
(1) The fact that a defendant is mentally incompetent, or is a minor, does not preclude a finding that he
possessed intent to commit an intentional tort, but incompetency may affect whether such intent
actually existed.
EXAMPLE: Dolores shoots Patty because she thinks Patty is Hitler. Dolores is liable for battery not
withstanding her insane delusion because she had purpose to cause contact.
3. The harmful or offensive contact element is satisfied if the contact would inflict pain or pain or impairment of
any body function, OR if a reasonable person would regard it as offensive.
EXAMPLE: Punching Arnold Schwarzenegger would be enough to constitute battery, even if he is not injured.
a. Any contact that would be offensive to a reasonable person is enough for battery.
EXAMPLE: Prissy hates to be touched and believes that when people touch her, they are trying to pass
alien beings into her body. Dale taps her on the shoulder and asks her for the time. Prissy freaks out and
sues Dale for battery. Dale was trying to touch her, but it was not harmful or offensive to a reasonable
person. The contact was not unreasonable. But if D knows of Ps susceptibility, shell recover bc he knew
of her susceptibility. There has to be contact with s body or something connected, doesnt have to be
direct.
(1) If defendant knows the particular susceptibility of the plaintiff the will be liable for battery.
b. It is sufficient for a battery if defendant causes a contact with something close to plaintiff.
EXAMPLE: Defendant intentionally kicks Plaintiffs cane out from under Plaintiff causing Plaintiff to fall to
the ground.
c. Direct contact not required; setting force in motion is enough.
d. Unlike assault, plaintiff does not need to be aware of the contact.
EXAMPLE: If Patsy falls asleep and while she is asleep, Barney kisses her on the forehead. Patsy finds out
the next day and sues for battery. She would be able to recover, even if she was unaware at the time. Jury will
give compensatory damages.
4. Privileges and Defenses
a. Consent is the most common defense.

C. ASSAULT
1. An assault arises where the defendant: intentionally causes to experience reasonable apprehension of
an immediate harmful or offensive contact.
a. Elements:
(1) Intent
(2) Reasonable apprehension
(3) Imminent battery
2. To prove intent, plaintiff must show that defendant:
a. acted with the desire to cause an immediate harmful or offensive contact or the immediate
apprehension of such contact, and
b. knew that such a result is virtually certain to occur.
c. Transferred intent often arises with: BATTERY, ASSAULT AND FALSE IMPRISONMENT.
TRANSFERRED INTENT EXAMPLE 2 (WRONG TORT): Dune wants to scare Pim, so she throws a knife
towards Pim but it ends up stabbing him in his leg. Dune intended to commit assault but there is also a
claim for battery. Intent for assault satisfies intent for battery.
TRANSFERRED INTENT EXAMPLE 3 (WRONG PERSON AND WRONG TORT): Beavis has been
harassing Donny at school. Donny decides that he wants to end this so he will scare Beavis into not picking
on him. Donny finds his fathers loaded Uzi and brings it to school with the intent simply to scare Beavis.
Donny accidentally pulls the trigger just as Precious comes walking out and gets hit in the right arm. Beavis
can sue for assault. Precious can bring an action for battery.
3. Reasonable apprehension:
a. Liability for assault will not be found unless a reasonable person in the same position as would
have experienced the same apprehension.
b. A long as plaintiffs apprehension is reasonable: the fact that lacked the actual ability to cause
the harmful or offensive contract does not defeat liability.

2
 Example: Sapp worked at a clock repair store. Mrs. Hill comes into the store and finds Sapp drunk. Mrs. Hill
inquires about getting her clock fixed. Sapp reaches toward Mrs. Hill and asks to pet her and fix her clock. She
sues for assault. Issue was about how wide the counter was because it determined whether Mrs. Hill could have
a reasonable apprehension of a battery.
4. Imminence
a. For an assault to take place the battery has to be able to be carried out almost instantaneously without any
substantial delay.
EXAMPLE: If Dracula says he will come back tomorrow to suck your blood, it is not an assault.
5. Look for words that negate intent. For example, If it werent a tort, I would punch you in the face.
6. Words alone rarely create an assault.
EXAMPLE:
Parker is walking down a deserted alley and heard a voice saying that they have a gun pointed at his head and
would kill him. This is enough for an assault even though it was committed by words.
7. You often have assault and battery together. But you can have one without the other as well.
EXAMPLE: Throwing a water balloon at someone creates the reasonable apprehension of a battery (assault)
and then being struck by the balloon is the actual battery.
a. You can have one without the other.
EXAMPLE (Battery without Assault): a sleeping person is kissed against her will.
EXAMPLE (Battery without Assault): sneaks up behind and breaks a board over s head.
EXAMPLE (Assault without battery): Defendant throws a knife toward Plaintiff. The knife just misses
Plaintiff. No contact, so no battery. But assault.
EXAMPLE (Conduct Constituting Both Assault and Battery): Defendant throws a knife at Plaintiff.
Plaintiff sees the knife coming towards him and then gets stabbed by the knife. No merger!

8. Plaintiff must be placed in reasonable apprehension of an imminent battery.

EXAMPLE: Dom and Pat are studying together for the bar exam. Dom notices that Pat has put together
checklists and diagrams for herself and wants to borrow it. Pat says no, Dom gets mad and grabs her cat and
holds it over the balcony, threatening to drop the cat unless Pat gives him her outlines. Pat sues Dom for assault.
This is not an assault or battery.

D. FALSE IMPRISONMENT
1. False imprisonment arises where the defendant intentionally causes plaintiff to be: confined or restrained to a
bounded area against the plaintiffs will, and the plaintiff knows of the confinement or is injured thereby.
a. Elements:
(1) Intent
(2) Confinment
(3) Against the s will
(4) knows of the confinement OR is injured thereby.
2. Defendant has the requisite intent for false imprisonment if he:
a. desires to confine OR restrain to bounded area OR
b. knows that such confinement is virtually certain to result.
c. Motive is irrelevant.
EXAMPLE: Target employees are excited for their holiday party. After the store closes, they will go out. At 9
p.m., without checking to see if anyone is in the changing rooms, someone locks up the store and Patina
gets locked in all night and sues for false imprisonment. She would lose because she could not prove
intent.
3. Confinement:
a. Plaintiff may be confined by: the use of physical barriers (e.g., locking plaintiff in a room), by failing to release
plaintiff where defendant has a legal duty to do so, or by the invalid assertion of legal authority
b. No duration of confinement is required: A very brief confinement will suffice, though the duration of the
confinement may affect the amount of damages
c. Confinement generally occurs by: Force/threat of force OR physical harm to of their family.
(1) Threats of reputational harm are generally insufficient.
EXAMPLE: David tells Pablo that if he leaves his room, David will tell the world that Pablo is a virgin.
Pablo stays in for a month and then sues David for false imprisonment. No confinement can be found
because this was a threat of reputational harm.
d. If plaintiff knows of a reasonable means of escape there is no confinement and therefore no false
imprisonment.
EXAMPLE: If there is an open window on the first floor and the plaintiff knows about it, there is no
confinement.
If there is an open window on the third floor and plaintiff would have to jump and risk injury, this is not a
reasonable means of escape.
(1) Risk of embarrassment is not a reasonable means of escape.
EXAMPLE: Stuart takes all of Susans clothes and leaves her in the middle of the woods. Because

3
 Susan does not have a means of escape, Stuart has falsely imprisoned her.
4. Against the plaintiffs will:
a. If the plaintiff consents to being confined there is no imprisonment
EXAMPLE: Plaxis is apprehended by an undercover store detective. He is taken to a back room to call the
police. Plaxis says he will wait for the police and then threatens to sue for false imprisonment but cannot
because he has consented to the confinement.
5. Harm or damages:
a. If the plaintiff is aware she is being confined there is false imprisonment and the plaintiff is entitled to any
damages the jury finds appropriate
b. If the plaintiff is not aware that she is being confined there is only a claim for damages if the plaintiff is
injured due to the confinement
EXAMPLE: If during a lecture, all of the doors in the room were locked but students did not try to leave,
there is no false imprisonment. If one person tries and cannot get out, there is a false imprisonment claim.
EXAMPLE: If a baby is locked in a room, the baby probably does not know of the confinement. If there was
some sort of physical harm, there would be a claim. Otherwise, no false imprisonment.
HYPOTHETICAL: Delbert quickly locks Professor Longwindeds classroom door during a Torts class,
unlocking the room an hour later at the end of class. Every student is so engrossed in the lecture that
nobody tries to leave the room during the class. Is Delbert liable for false imprisonment?
6. False arrest:
a. A false assertion of authority is the same as false imprisonment

E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

1. Intentional infliction of emotional distress arises where the defendant engages in: an intentional or reckless act
amounting to extreme and outrageous conduct that causes plaintiff severe emotional distress.
a. Elements:
(1) Intent OR recklessness
(2) Extreme and outrageous conduct
(3) Causation
(4) Severe emotional distress
2. Mental State: Defendant must act with intent to cause severe mental distress or be reckless in creating the risk
of emotional distress.
a. Intentional:
(1) Desires to cause severe emotional distress OR
(2) knows that conduct is virtually certain to cause severe emotional distress.
b. Recklessness:
(1) Defendant acts with a conscious disregard of a high degree of probability that the emotional distress will
follow.
EXAMPLE: Dora had an ongoing feud with Pavala. Dora calls Pavala, disguises her voice and says this is
General Hospital. Your child has just been rushed to the emergency room. Pavala suffers severe
emotional distress. Dora has the intent for IIED. It was her goal to cause emotional distress and knew it
was virtually certain.
EXAMPLE: Dora is at the hospital and walks by the desk where people check in and overhears a
discussion and thinks that one of the nurses is saying that Pavalas child has been rushed to the
emergency room. Dora calls Pavala. This would suffice for IIED because it would be a form of
recklessness.
c. No transferred intent doctrine, but because the mental state is broader, there are situations where third
parties can recover for severe emotional distress by showing that the was reckless as to whether their
conduct would cause severe emotional distress.
EXAMPLE: Don stabs Pauls father in front of Paul. If Don knows that Paul is there and knows that his victim is
Pauls father and Paul suffers emotional distress, Paul could recover against Don for IIED not because of
transferred intent, but because Don was reckless.
3. The element of extreme and outrageous conduct is satisfied if the defendants conduct is beyond the bounds
of decency conduct that civilized society will not tolerate.
a. Offensive or insulting language is generally not considered outrageous.
EXAMPLE: Delilah, in front of everyone, says that Paulas dress is cheap and ugly. Paula is humiliated and
has a heart attack from embarrassment and sues for IIED. Paula would lose.
b. EXCEPTIONS:
(1) Defendant is engaged in certain callings such as an innkeeper or common carrier (accept $ to
transport people).
(2) Defendant knows of the s particular susceptibility. (most tested).
EXAMPLE: Dratt knows that Pon is superstitious and releases black cats onto his property and sends
him shattered mirrors. This would generally be tolerated, but since Dratt acted to exploit Pons
susceptibility, it would be considered IIED.
(3) Someone in a position of authority uses racial or ethnic insults against someone who is an underling.
4. Causation issue that might arise:
a. Plaintiff was an emotional basket case before the defendant did anything. There is a problem with showing

4
 causation. Even though defendant engaged in outrageous conduct and plaintiff suffered severe emotional
distress, it could not be shown that the reason for the distress was due to the defendants conduct.
5. Severe emotional distress
a. Plaintiff does not have to prove physical injury.
b. Plaintiff has to prove the distress suffered was:
c. The emotional distress must be severe and significant/substantial, as opposed to trivial and short
lived/transitory.
More than the level of mental distress a reasonable person could be expected to endure.

F. TRESPASS TO LAND
1. Trespass to land is an intentional act that causes a physical invasion of s land, interfering with the s
possessory interest.
a. Elements:
(1) Intent
(2) Entry
(3) Plaintiffs land
2. To establish intent, plaintiff needs to show that:
a. Defendant desired to enter the land; OR
b. Defendant knew that the land entry is virtually certain to result from the s actions.
EXAMPLE: Irene is driving around and gets lost in an unknown area. She sees Dennis standing on the
sidewalk. Irene pulls over and asks Dennis for directions to the freeway entrance. Dennis says to take his
dirt road to the end, and make a left. Property doesnt belong to Dennis, but to Prince who has hidden
cameras. Finds Irene and sues her for trespass. Prince will recover because Irene intended to enter that
land and Dennis intended to get Irene to enter the land.
c. Mistake is not a defense as to a trespass action.
3. When a person is trespassing, they are liable for the full extent of their harm.
EXAMPLE: Irene is driving carefully across the dirt road, hits a pothole and loses control. She hits an azalea
bush worth $15,000. She is liable for this destruction because it occurred while she was trespassing.
4. Entry. The element of physical invasion is satisfied if:
a. defendant enters OR causes a 3rd person or object to enter onto s land,
b. defendant enters onto s land lawfully but then remains when under a legal duty to leave, OR
c. defendant fails to remove an object from s land when under a legal duty to do so.
EXAMPLE: Darla fires a gun across Pentiums property. This constitutes trespass because the bullet crossed the
property of the plaintiff.
5. Plaintiffs land:
a. Because trespass to land is a tort against ones possessory interest anyone in possession of the land can
bring an action.
EXAMPLE: Darla thinks she is crop dusting her own land but the pesticide lands on Owens land. He has
leased the property to Tom. Tom can bring a trespass to land action because he is in possession of the
land. If permanent damage occurred, the owner would have a claim.
6. Remedies
a. Three types of remedies in tort:
(1) Legal remedies
(a) Damages
(i) nominal
(ii) compensatory
(iii) punitive
(2) Restitutionary remedies (designed to prevent unjust enrichment on the part of the defendant
(a) Ejectment
(b) Replevin
(3) Equitable remedies
(a) Inunction
b. Trespass to land:
(1) Nominal damages are recoverable.
(2) Defendant is liable for all of the harm caused by the trespass
(3) Restitutionary remedy of ejectment
(a) Action brought by the plaintiff to have the sheriff remove the defendant from the property.
(b) Having the defendant removed from the property.

G. TRESPASS TO CHATTELS
1. Trespass to chattels arises where a defendant intentionally interferes with the s chattel, causing harm.
a. Elements:
(1) Intent
(2) Interference
(3) Plaintiffs chattel
(4) Harm

5
 2. Intent is satisfied when defendant intentionally performs the physical act that interferes with plaintiffs chattel.
Defendant is liable even though he did not intent or recognize the legal significance of his act. Mistake is not
defense to trespass to chattels.
EXAMPLE: Dale is leaving a restaurant and takes a blue denim Levis jacket, believing it is his but it is really
Pauls. This is sufficient to create intent for trespass to chattels.
3. Interference interferes with s right of possession in tangible PP.
a. occurs through dispossession (depriving P of his possessory rights in chattel) or intermeddling (damaging
s chattel).
b. Trespass- minor interference or damage
c. Conversion- significant interference or damage that justifies paying the chattels full value. A longer
and/or more damaging use of s chattel gives rise to conversion.
4. Conduct giving rise to trespass to chattels - Defendant uses, borrows without authorization or damages a chattel
of another in a significant enough way that we are willing to provide damages.
5. Harm actual damage, at least a dispossession that is not entirely insignificant.
EXAMPLE: Keeping the jacket for five minutes is not significant enough. Keeping the jacket for a week would be
and Paul would likely be able to recover the rental value of the jacket.
EXAMPLE: Pam and Dextra are at Pams apartment. They are playing a game where every time foreseeability
comes up, they do a shot of tequila. Once they finish the first bottle, Pam says she will go to the store to get
more. Pams dog is in the backyard and Pam tells Dextra not to let the dog in the house or touch the dog. Pam
comes back to find Dextra holding the dog and sues for trespass to chattels. If the dog is not harmed, there is no
case.
a. Remedies:
(1) Damages
(2) Restitutionary remedy of replevin (get back PP or which one has been wrongfully disposed)
H. CONVERSION
1. Conversion arises where the defendant exercises:
a. Elements:
(1) Intent
(2) Dominion and control
(3) Substantial interference
2. Intent:
As with trespass to chattels, mistake is not a defense to conversion. Defendant is liable even though he did not
intend OR recognize the legal significance of his act.
EXAMPLE: Dale takes Pauls jacket and loses it. Sued for conversion. Is liable. Had the purpose to exercise
dominion and control over the jacket and by losing it, there is a serious and substantial interference. Dale would
have to pay fair market value.
3. Bona fide purchaser for value. Liable to owner of chattel.
EXAMPLE: Cruella steals Prissys Ming vase worth $1,000,000. Cruella sells the vase to Drake, who pays fair
market value. Prissy can sue Cruella for conversion. If Prissy cannot find Cruella, Drake is a converter as well
and can be sued. Either has to pay $1,000,000 to Prissy or return the vase.
4. Remedies and damages
a. Typical remedy is forced sale converter must pay FMV of chattel at the time of conversion.
b. Replevin: Action brought by the plaintiff to get back personal property.

TRESPASS TO CHATTELS CONVERSION

Intentional tort Intentional tort

Committed by intentionally dispossessing or intermeddling Committed by intentionally exercising dominion or control over a
with a chattel in the possession of another chattel and seriously interfering with the rights of the owner.

Defendant is liable for damage or diminished value of Defendant is liable for the full value of the chattel at the time
chattel. of the conversion.

I. DEFENSES AND PRIVILEGES TO INTENTIONAL TORTS

EXAM TIP: Remember POPCANS
Privilege
6
 Others
Property
Consent
Authority
Necessity
Self-defense
1. Consent
a. If the plaintiff consents to any intentional tort there is no recovery for damages for any intentional tort.
Consent is a total defense.
b. Plaintiff can manifest consent expressly, by implication, or as a matter of law.
(1) Express consent affirmatively communicates permission for to act.
EXAMPLE: Professor is concerned about his weight and needs to stop eating Twinkies. Tells class
that if they see him eating a Twinkie, do whatever it takes to stop him. Student grabs his arm and
pulls the Twinkie away, professor sues for battery. Professor will lose because he gave express
consent.
(a) Limitation: exceeding consent reasonably given.
(2) Implied consent arises where a reasonable person would interpret s conduct as evidencing
permission to act.
EXAMPLE: X plays pickup basketball. During the game, an opposing player trips him and causes him
to injure his leg. Even if done intentionally, X had impliedly consented by agreeing to play.
(a) Limitation cant exceed consent that might be applied from conduct.
(b) Standard what the might reasonably believed.
EXAMPLE: Polly is in line for a vaccination but does not know this. She offers her arm and receives
an injection. Polly sues for battery. Polly loses because there was implied consent by offering her
arm. It is reasonable to believe consent had been given.
c. Mistake can vitiate consent when it goes to the consequence or nature of the fact. If mistake is to a
collateral matter, then there is still consent.
EXAMPLE: Dale is about to become intimate with Penny when Penny asks if he has herpes. Dale, knowing
he does, lies and denies it and then sleeps with Penny. Penny gets herpes and sues Dale. Penny will not
be deemed to have consented.
If Penny is a prostitute and they engage in sexual relations and Dale pays Penny with a counterfeit bill,
there is still consent because the counterfeit bill is a collateral matter.
HYPOTHETICAL: Billy Club asks Hima Tohma if he can hit her with his new baseball bat. Hima responds,
Sureyou cant swing that foam bat hard enough to hurt me anyway. Billy, knowing that the bat is, in fact,
made of wood, swings and hits Hima. Can Billy claim the defense of consent for the battery?
2. Self-Defense
a. Arises where a defendant honestly and reasonably believes that she used reasonable force to prevent
plaintiff from engaging in an imminent and unprivileged attack.

(1) Defendant only need be reasonable and must respond with proportionate force.
b. Once the threat is over the defense will not work. There must be an imminent existing threat and responds
accordingly.
EXAMPLE: Donna and Paula exchanged harsh words. Paula says wait until the next time I see you alone.
I am going to teach you a lesson you will never forget. Donna is alone in a parking lot that night when she
sees Paula walking towards her with something in her hand. Donna picks up a stone and throws it and hits
Paula, causing injury. Paula sues for battery. Donna intended contact but argues self-defense based on the
earlier threat. Even if Paula was only carrying a fishing pole as an apology gift, if Donna believed she was
threatened, she can respond accordingly.
c. The force used must be proportionate to the threat:
(1) Deadly force cannot be used to meet non-deadly force.
(2) Retreat:
(a) Some jurisdictions require one to retreat before using deadly force
(b) One never has to retreat from their own home.
HYPOTHETICAL: Dylan sees Percy approaching him in a bar, with a baseball bat poised to strike
him. Believing that Percy intends to hurt him, Dylan wrestles Percy to the ground. Is Dylan still
privileged to defend himself if it turns out that Percy was not actually intending to hurt Dylan?
3. Defense of Others
a. Defendant is entitled to defend another person from an attack by the plaintiff to the same extent that the 3rd
person would be lawfully to defend himself from .
EXAMPLE: Igor overheard the threat that Paula made to Donna. Donna is in the parking lot when Igor sees
Paula walking towards Donna. Igor picks up a stone, throws it and hits Paula. Paula sues for battery. Igor
could successfully assert defense of others because he reasonably believed that Donna was at risk of
imminent harm and responded with proportionate force.
4. Defense of Property
a. Defendant is permitted to use reasonable force to prevent from committing a tort against s property.
b. A defendant may never use deadly force to protect personal or real property.

7
 (1) Look for situations that escalate from defense of property to defense of others or self-defense.
c. One may use reasonable force to eject a trespasser from personal property after asking them to leave.
d. Recapture of chattels:
One may use reasonable non-deadly force to get back ones personal property provided that:
(1) a request is made for its return OR the request would be futile, AND
(2) is in hot pursuit.
EXAMPLE: Dale took Pauls jacket. Paul saw it and asked for it back. Dale takes off with the jacket. Paul
can chase Dale and use reasonable force to get it back.
5. Necessity
a. Defendant is permitted to injure plaintiffs property if it is reasonably necessary to avoid:
b. Public necessity arises where the defendant is:
EXAMPLE: Earthquake starts a fire in the city and to stop the fire, Devilla dynamites Paxtons home to stop
the spread of the fire. Paxton sues for conversion and trespass to land. Paxton would lose. The greater
good was trying to stop the fire.
(1) Could raise Fifth Amendment takings issues.
c. Private necessity arises where defendant commits an intentional tort and it is:
EXAMPLE: Demora is out on the water in a small boat loaded down with important cargo when a storm
arrives. Demora takes her boat and ties it to Princes dock notwithstanding the No Trespassing signs.
Demora could assert this defense.
(1) Defendant will be liable for any harm caused during the exercise of the privilege.
HYPOTHETICAL: Dev is boating on a lake when his motor boat springs a leak. Concerned that he will sink
and drown, Dev motors to the nearest dock, which belong to Paulo. Dev ties his boat to Paulos dock and
walks across Paulos land in search of help. The boat damages the dock while moored there. Is Dev liable
to Paulo for trespass? for the damage to the dock?
6. Authority
a. Arrest
(1) Felony. A police officer can arrest a person who the police officer reasonably believes committed a
felony.
(2) Misdemeanor. A police officer can only arrest for misdemeanors that constitute a breach of the peace.
(3) Private individuals. Private individuals act at their own peril. If they are wrong they are liable for torts
committed.
b. Shopkeepers Privilege
(1) A defendant/shopkeeper is not liable for false imprisonment or a related tort if he has a reasonable
suspicion that plaintiff has stolen goods, uses reasonable force to detain the person, and detains
plaintiff for a reasonable period and in a reasonable manner, on the premises or in the immediate
vicinity.
EXAMPLE: Drug Co. has an undercover detective who sees Paxton shopping on a hot day in a long
heavy coat. He believes he saw Paxton put something into the pocket of the coat. Grabs and detains
him until the police determine that he did not take anything. Depends on length and manner of
detainment.
c. Discipline
(1) If defendant is charged with maintaining discipline (e.g., a parent or teacher), he may use:

II. NEGLIGENCE
A. INTRODUCTION AND ELEMENTS
1. Duty Does the law impose a legal obligation on the toward the ?
a. If yes, what is the measure of the duty owed. (standard of care)
2. Breach of Duty Failure to meet the standard care.
3. Causation
a. Cause in Fact Connects the defendants breach to the s injury.
b. Proximate Cause - Are there still policy reasons to cut off liability even with the other elements established?
4. Damages Plaintiff must prove damages to recover for negligence.
5. Defenses
EXAM TIP: Use headings on a negligence questionseparate out the elements. On an essay, use the facts and
engage in analysis.
B. DUTY
1. When a defendant is engaged in affirmative, risk creating conduct causing personal injury or property damage a
duty is owed to a foreseeable plaintiff.
a. Duty is a significant issue where there is:
(1) Unforeseeable
(2) Non-feasance or failure to act.
(3) Harm other than personal injury or property damage
(4) Defendant is a land possessor, landlord, utility or governmental entity
2. Unforeseeable Plaintiffs
a. There is no affirmative duty to take action to aid or protect a who is at risk of injury unless such action is
taken.

8
 In the famous Palsgraf case, Justice Cardozo articulated the rule that defendant owes a duty only to
foreseeable s. No duty was owed to Mrs. Palsgraf because she was an unforeseeable .
EXAMPLE: Drudge is driving negligently, jumps the curve and collides into the back of a parked car. The
parked car contained explosives, and a huge explosion occurred. Three blocks away, Polyanna was
walking down the street and was hit by a piece of falling glass from the explosion, suffering cuts on her
nose. She sues Drudge for negligence and will lose because she is not a foreseeable plaintiff.
b. Rescuers Are owed an independent duty. Rescuers are per se foreseeable s, and thus are owed duty
HYPOTHETICAL: Della negligently fails to maintain a stool in her ice cream parlor. Xena, a customer, sits
on the stool and falls on to the ground because of the disrepair of the stool. Parker runs across the ice
cream parlor to help Xena, but slides on the ice cream Xena dropped when she fell, breaking his ankle.
Does Della owe Xena a duty? Parker?
3. Nonfeasance v. Misfeasance
a. Misfeasance:
(1) Affirmative risk-creating conduct, OR
(2) Negligent omission, failure to intervene to confer a benefit on another.
EXAMPLE: Debo is driving and because he is not paying attention, fails to stop at a stop sign. He
owes a duty to plaintiff. This was misfeasance. He created an affirmative risk of harm.
b. Nonfeasance begins with the assumption that there is no duty at all. Failure to intervene to confer a benefit
on the .
(1) Duty to rescue or aid
EXAMPLE: Diablo is walking on the railroad tracks when he hears the sound of a baby crying. He
knows a train is coming and watches it kill the baby. The parents of the baby sue Diablo for
negligence. Diablo owes no duty.
(a) EXCEPTIONS:
1) Defendants tortious conduct creates the need for rescue.
EXAMPLE: Dexter is driving across a narrow bridge and is driving on the wrong side of
the center line. Polly tries to avoid him and drives off the bridge. Dexter has a duty.
2) Undertaking to act One has no obligation to come to the aid of another, but if they
choose to do so, they must act reasonably.
EXAMPLE: Delilah is on a deserted beach and sees a car fly over a bridge into the water.
Delilah has no obligation to rescue, but if she undertakes to act she cannot then swim
away.
a) Some jurisdictions say you are only liable if you leave the defendant in a worse
position.
b) Good Samaritan statutes (majority jx) Those who rescue others will not be liable
for their negligence. Would have to be grossly negligent, reckless or willful if they are
going to be liable.
3) Defendant creates reliance. If promised to aid a , and attempts to give promise aid,
has a duty to exercise reasonable care in doing so. Promise creates a tort duty.
EXAMPLE: Palatin calls Dina saying that he has chest pains. Dina says she will take him
to the ER. On her way over to his house, Dina runs into friends and goes with them
instead of Palatin. She owes him a duty because she said she would come to his aid.
4) Special relationship of dependence or mutual dependence (common carrier/passage.
Innkeeper/guest. Captain/passenger or seaman. Drinking buddies.)
EXAMPLE: If Diablo was the father of the baby on the railroad tracks, he would have a
duty to rescue it.
Common carrier/passenger. Innkeeper/guest. Captain/passenger or seaman. Drinking
buddies.
HYPOTHETICAL: Darla, an expert swimmer, is sunbathing on a deserted beach when suddenly
Paulos car drives off a bridge and into the water. Is Darla liable if she ignores Paulos plight and
continues sunbathing? What if she starts bringing Paulo back to shore, then abandons the
rescue because she spots a rare fish she wants to inspect?

HYPOTHETICAL: Dino, a driver for Mauvehound Bus Lines, sees that a passenger is having
difficulty breathing. Does Dino have a duty to come to the passengers aid? Do the other
passengers?

(2) Duty to Control or Warn Third Parties

EXAMPLE: Delberto and Tina are strangers sitting next to each other at a bar. They start chatting and
Tina says her husband is going to come by and pick her up. She says she is going to kill him when he
does. Tina leaves and shoots her husband. Husband sues Delberto for not warning him.
(a) There is no duty to control or warn the conduct of a third person as to prevent him from causing
physical harm to another.
(b) EXCEPTION:
1) A special relationship exists between the actor and the third person that imposes a duty

9
 upon the actor to control the third persons conduct; OR
2) A special relationship exists between the actor and the other person that gives the other
person a right of protection.

EXAMPLE: A prison has a dangerous criminal locked away and the criminal escapes. The
prison has a duty to warn people in the neighborhood.
EXAMPLE: A mother knows that her son always tries to kill babysitters when she leaves him
with them. She must warn the babysitter.
EXAMPLE: Psychotherapist exercises enough control that when they know of the patients
dangerous propensity, there is a duty to warn the party that might be in danger.
(c) Providers of alcohol
1) Traditional rule: A social host or commercial establishment that provided alcohol to
someone who then drove and injured a third party had no duty to third party.
2) Dram Shop Acts Impose liability on establishments who they know OR should know to
be intoxicated when that person drives and harms a 3rd party.
(d) Negligent entrustment:
A form of misfeasance a duty is owed to any foreseeable . gives something to someone
whom the should know is incapable of handling the object given to them.
EXAMPLE: Father gives son a gun to play with. If son shoots a third party, the father can be
sued.
(3) Duty to Protect
(a) One generally does not have a duty to protect a person from 3rd criminal conduct.
(b) EXCEPTIONS:
1) Special relationship (such as a landlord/tenant, business/invitee) will trigger a duty.
Some jurisdictions will only find a duty to protect where there were prior similar incidents,
making the 3rd party criminal conduct particularly forseeable.
HYPOTHETICAL: Tenant Paxton is robbed at gunpoint by a stranger while in the laundry room
of his apartment building owned by Drucilla. Another tenant was robbed in the laundry room last
month. Can Paxton proceed with a negligence action against Drucilla?

4. When the defendant is a governmental entity, the question of whether the defendant owes a duty to the plaintiff
will depend on the function the government is fulfilling that gives rise to the cause of action. Ask: is the govt
engaged in a proprietary, discretion activity, or ministerial function?
a. Proprietary function arises
(1) Acting in an area traditionally occupied by private entities.
(2) The government will be treated as any other defendant for the purpose of determining duty.
b. Discretionary activity
(1) Where the governmental entity is using judgement and allocating resources.
(2) The courts will not find a duty.
c. Ministerial function:
(1) Courts will find a duty; once the governmental entity has undertaken to act it must do so non-
negligently
EXAMPLE: Parlu is injured at an intersection when she it hit by a car. She sues the city, saying there
should have been stop sign. City will probably win. The decision of where to place the stop sign is a
judgment decision on the part of the city.
EXAMPLE: If the stop sign was installed incorrectly, Parlu would be able to recover against the city.
(2) Public duty doctrine
When a government agency (e.g., police, fire department) is sued for failing to provide an adequate
response, courts will find no duty.
(a) EXCEPTIONS:
1) There is a special relationship between the plaintiff and the agency .
2) The agency has increased the danger beyond what would otherwise exist.
d. If the defendant is a utility courts have refused to impose duty beyond those who are in privity of contract to
the utility.
5. If the plaintiffs injury is not personal injury or property damage, duty issues arise.
a. Emotional Distress
(1) Courts have traditionally been reluctant to allow liability for emotional distress, and apply special rules for
claims for pure emotional distress.
(a) Distinguish pain and suffering damages from emotional distress recovery.

EXAMPLE: Dell is speeding and driving negligently. He collides with and injures Puka, breaking her
leg in five places. Puka cannot work, has a lot of medical bills and her car is destroyed. She is in

10
 great pain and will walk with a limp for the rest of her life. Puka can recover for pain and suffering.
(2) Direct Actions
Defendant engages in negligent conduct and as a result, the plaintiff suffers emotional distress and
some sort of physical manifestation.
(a) In most jurisdictions, to recover for emotional distress the plaintiff must:
1) have been in the zone of dangerthat is, the area in which he was at risk of being
physically injured; and
2) have suffered some accompanying physical manifestation of the emotional distress
establishing the injury of her pain.
EXAMPLE: Pavi is standing on the sidewalk waiting to cross the street. Dab jumps the
curb, almost gets run over but jumps away. Pavi has a heart attack because he was
almost run over. A duty is owed because Pavi was in the zone of danger.
3) EXCEPTIONS: (dont have to prove zone in danger or physical manifestation)
a) If defendant negligently transmits a telegram announcing the death of a loved one;
and
b) If defendant negligently mishandles a corpse.
(b) In a minority of jurisdictions, if defendant has a preexisting duty to plaintiff, plaintiff may recover
for negligent infliction of emotional distress.
(3) Bystander Actions
The physical negligent harm occurs: to a loved one, and the plaintiff sues for his emotional distress as
a result of the injury to another
(a) Many jurisdictions require the bystander to have been in the zone of danger.
(b) However, most courts have now adopted some version of the bystander liability rule. A plaintiff
may recover for negligent infliction of emotional distress under a bystander theory if he:
(1) was located near the scene of an accident;
(2) suffered severe emotional distress; and
(3) had a close relationship with the victim.
EXAMPLE: Mom and Dad go out for a walk with Junior. Dad and Junior are holding hands and
crossing the street, Mom stopped to tie her shoe. A negligently driven car runs over and
severely injures Junior. Dad jumps out of the way. Mom watches the events. Mom and Dad both
have heart attacks and sue the driver for NIED. Under MBE, only Dad can recover because he
was in the zone of danger. Would have direct and bystander action. Mom cannot recover.
(c) Some jurisdictions allow plaintiffs outside the zone of danger but on the scene of the injury to
recover for emotional distress.
b. Wrongful Conception, Wrongful Birth, Wrongful Life
EXAM TIP: On the MBE, this is usually a wrong answer due to the jurisdictional splits.
But this can be tested easily as follows:
EXAMPLE: Xena goes to see Dr. Destructo for amniocentesis and Dr. commits malpractice and punctures
the fetus lung. Child is born with a collapsed lung. Child can sue Dr. because negligence is why he has a
collapsed lung.
(1) Wrongful conception applies where the injury is the birth of a healthy but unwanted child.
(a) Damages typically involve the cost of the birth and the cost to rectify the ineffective
contraceptive measure.

(2) Wrongful birth is the claim of the parents for the birth of an unwanted but unhealthy child.
(a) Wrongful birth claims generally stem from a physicians failure to diagnose a disability in the
fetus, which plaintiff claims would have led her to not give birth to the child.
(b) Damages Some courts will award the extraordinary costs of having a child with special needs,
but the jury may offset this award by the benefit obtained from having the child.
(3) Wrongful life is the childs action for the injury of been born unhealthy. (more likely to be in exam)
The answer is courts do not permit to recover for the injury of been born.
6. Land Possessor Liability
ask: what is the status of the land entrant?
a. Plaintiffs on the land
(1) Invitees
(a) An invitee is a person who enters onto defendants land at defendants express or implied
invitation, and who enters for a purpose relating to defendants interests or activities or the land
is held open to the public at large.
EXAMPLE: Shoppers in a store or patrons in a museum.
(b) Defendant has a duty to exercise reasonable care to prevent injuries to invitees caused by
activities conducted on his land.
(2) Licensees
(a) A licensee is a person who enters onto defendants land with defendants express or implied
permission, and who does not enter for a purpose benefiting defendant or defendants activities.
HYPOTHETICAL: Delbert invites his classmate Paco to dinner at his home. Paco is injured
when his hand is cut on a piece of broken tile in Delberts bathroom. Is Paco a licensee or an

11
 invitee?
(b) Land possessors must warn licensees of known, concealed dangers that are not obvious.
(3) Trespassers
(a) Trespassers If plaintiff enters onto defendants land without defendants permission or without a
privilege to so enter, plaintiff is classified as a trespasser.
(b) Only obligation on the land possessor is avoid affliction of willful and wanton harm.
(4) Status can be debatable and can change.
EXAMPLE: Dean is having an open house for students of her law school. When Parton trips over a
sprinkler head covered by grass and breaks his ankle, he sues Dean. He is probably an invitee
because he was there to confer a benefit on Dean. There is a duty, but has Dean been reasonable?
Parton starts wandering around the house and ends up cutting himself on a piece of broken marble.
No longer an invitee. Could he have reasonably believed that he had implied consent to be in that
part of the house? If a licensee, Dean had a duty to warn. If a trespasser, no duty to warn.
(5) Other duties owed by land possessors
(a) Activities on the land. There is a duty of reasonable care owed to any land entrant injured by the
defendants activity unless it is an unknown trespasser.
(b) Only for an invitee does a land owner have a duty to search out dangers on the property.
(c) If there are known or frequent trespassers the land possessor must warn of known artificial
conditions of the land.
EXAMPLE: Dabya knows of trespassers. If she builds a crocodile pit and hides it, she must put
up a warning of the dangers. If there is naturally occurring quicksand, she does not need to
warn.
(6) Child Trespassers (Attractive Nuisance Doctrine)
(a) If the conditions apply, even though there is a trespassing child, the child will be treated like an
invitee, and be owed a duty of reasonable care.
(b) Five factors:
1) Are children too young to appreciate the danger?
2) Is it foreseeable that there would be trespassing children?
3) Does the defendant know of the dangerous condition on the property?
4) Only applies to conditions.
5) Is the risk so great that it outweighs the utility and the burden that would be placed on the
defendant?
EXAMPLE: Six-year-old Pablo is trespassing on Devins land. Devin is building a new
barn so there is scaffolding and construction. Pablo starts walking around when one of the
boards cracks, he falls and breaks his back. Pablo sues Devin. Court will apply the
factors.
(7) Minority approach: Applies standard of reasonable care to all land entrants.

b. Plaintiffs not on the land (but adjacent to it)

(1) Artificial condition on the land (man-made) Duty of reasonable care
(2) Natural condition on the land No duty unless it is a tree in an urban area.
EXAMPLE: Desiree builds a faux Eiffel Tower on her property. On a windy day, a piece of the tower
breaks loose and hits Pierre on the head. Pierre sues Desiree. She owes him a duty of reasonable
care.
If Pierre is blinded by a naturally occurring quicksand pit, he is not owed a duty because injury was
caused by a natural condition.
c. Landlords and Tenants
(1) Landlords are not liable unless:
(a) Common area over which landlord retains control
(b) Negligent repairs
(c) Known hidden dangerous defect on the property.
(d) Landlord knows that the tenant is going to hold the property open to the public at large
C. STANDARD OF CARE: FOUR POSSIBLE STANDARDS OF CARE
(1) Reasonably Prudent Person Under the Same or Similar Circumstances
(2) Children
(3) Statutory Negligence and Negligence Per Se
(4) Professionals
1. Reasonably Prudent Person Under the Same or Similar Circumstances
a. Objective standard of care Look at defendants conduct and measure it against the reasonably prudent
person under same or similar circumstances.
b. Must determine what circumstances are relevant.
EXAMPLE: 30-year-old Dolores has lived her entire life in NYC. She has never driven a car. Dolores
accepts a job in LA, takes the driving test and passes. On her first day as a licensed driver, she collides
with Pinky and Pinky sues. The fact that it is her first day is irrelevant.
(1) Defendant must rise up to the level of the average person in the community.

12
 (2) We do not consider mental ability, insanity, reflexes etc.
(3) We do take into account:
(a) Physical conditions
1) Where the defendant has a physical condition such as being blind or having lost a leg, that
defendant will be held to the standard of the reasonably prudent person with that condition.
(b) Emergencies not of the s own making. Jury can consider reasonableness of conduct under
the circumstances.
EXAMPLE: Delbert is notified that his child was injured and taken to the hospital. He jumps into
his car and speeds to the hospital and ends up injuring Plax. Jury will consider whether Delbert
acted reasonably when rushing to attend to his injured child.
EXAMPLE: If Dorkus is driving while distracted and has to veer his car into Pompadors Jaguar
in order to avoid hitting a child, he cannot claim emergency because he created the situation.
c. Breach is a failure to act as a reasonably prudent person. To analyze breach consider:
(1) The probability of harm.
(2) The likely magnitude of the harm.
(3) The burden on the defendant of avoiding the harm.
EXAMPLE: Dunco is a trolley company and decides to build one using uninsulated wires. Putnick is
walking across the bridge carrying a metal pole and the pole makes contact with the wires, shocking
him. Must use above considerations to determine whether standard of care was met.
(4) Custom evidence
(a) Plaintiffs proof of Defendants deviation from custom is evidence of Defendants breach of duty.
(b) Defendants evidence of compliance with custom may be evidence of no breach of duty.
EXAMPLE: Plaintiff could put on evidence that most trolley lines insulate their wires. This is
helpful evidence in proving negligence if it is well-established custom designed to prevent
shocks from the uninsulated wires.
2. Children
a. The reasonable person standard specifically takes account of age when defendant is a minor.
b. Majority of jurisdictions GR: A minor defendants conduct is assessed according to what a reasonable
child of the same age, education, intelligence, and experience would have done.
(1) Subjective Looking at this child defendants age, intelligence, personal experience.
(2) Objective Compare child to other reasonable similar children.
c. Minority of jurisdictions Children under six are conclusively presumed incapable of being negligent.
d. EXCEPTION:
Children engaging in inherently dangerous adult activity (driving a car, operating a boat), however, are
required to conform to an adult standard of care.
EXAMPLE: 11-year-old Darla is driving her parents car and collides and injures Pava, when Pava sues
Darla, because she was driving a car which is an adult activity and an inherently dangerous activity, Darla
does not get the child standard and will be held to the standard of the reasonably prudent person.
3. Statutory Negligence and Negligence Per Se
a. A statute that provides for civil liability supersedes the common law of torts.
EXAMPLE: If a state legislature passes a law that says anyone who is injured in an automobile accident
and was not wearing their seatbelt cannot recover in tort, a plaintiff cannot recover in a negligence action if
she was not wearing a seatbelt.
b. Negligence per se:
Where defendants conduct also violates a statute that does not provide for civil liability (usually a criminal
statute), the statute may establish the standard of conduct for breach of duty purposes
(1) When determining whether the statute should apply, a judge considers:
(a) plaintiff is a member of the class intended to be protected by the statute; and
(b) the injury caused by defendants conduct is the type that the statute was intended to prevent.
EXAMPLE: Legislature in the state of Panic passes a law that says anyone driving after sundown
without headlights is guilty of an infraction punishable by up to a $1,000 fine. This is a criminal
law. Dana is driving after dusk without headlights and cannot see Trachsel crossing the street and
she runs over and injures him. Trachsel sues Dana in negligence and would prefer that the judge
use the statute to set the standard of care because it limits the jury role.
(2) In a majority of jurisdictions, this means that an unexcused violation conclusively establishes that
defendant breached his duty to plaintiff.
(3) Minority jurisdictions regard a qualifying violation of statute by defendant as either raising a rebuttable
presumption or as prima facie evidence that defendants conduct breached the duty to plaintiff.
c. When the statute does not apply
(1) Statute will not be used to set the standard of care but the case proceeds under reasonable and
prudent person standard of care.
EXAMPLE: State of Joy passes a statute that requires all railroads to construct secure fences
between their property and neighboring property, failure to do so results in a fine up to $1,000. Dunn
railroad constructs a flimsy fence between their land and Pierres. Railroad workers mow the lawn
next to the fence, and on the other side of the fence is Pierres cow. Cow knocks the fence over and
eats herself to death on the cut grass. Statute is not designed to protect cows from overeating and

13
 will not apply. Its not the type of harm that the statute is design to protect.
(2) Situations in which the statute standard will not apply:
(a) Excused violation of the statute such as emergency situations or when is harder to comply with
the statute than to violate it. Ex. Driver has a seizure on the road.
(b) Licensing statutes.
EXAMPLE: Diva injures Pavarotti in a collision. Pavarotti wants to show that Diva was driving
with an expired license and use the statute as a standard of care. Court will require Pavarotti to
show that Diva was driving unreasonably.
4. Professionals
a. For lawyers, doctors, accountants and architects, courts will defer to the profession so long as the
professional complies with that custom, she cannot be found to have breached her duty. Deviation of that
custom is breach of duty.
b. Medical Malpractice:
(1) Doctors are required to possess and use the knowledge, skill and training of other doctors in good
standing in the relevant geographic community.
(a) Specialists national focus.
(b) General practitioners locality focus.
EXAMPLE: Dr. Doze is an anesthesiologist and administers anesthesia to Pedric. After two
hours, Pedric gets up and then falls and suffers injury. Sues Dr. for medical malpractice.
Evidence shows other anesthesiologists allow patients to rest for four hours, not two hours after
anesthesia. This evidence shows deviation from custom, Dr. will lose.
If Dr. can shows that two hours are customary, Pedric loses since Dr. has complied with custom.
c. Lack of informed consent:
(1) Battery: Traditionally, a physician was liable for the intentional tort of battery if he failed to properly
inform a plaintiff/patient about the risks and alternatives of a proposed medical procedure or
treatment; plaintiffs consent was said to be negated by the lack of disclosure. This is still the case
where there is a gross deviation from consent, such as where a patient agrees to a tonsillectomy, but
her leg is amputated instead.
(2) Negligence-Traditional Doctor Rule: Doctors must divulge those risks that are customarily divulged.
(3) Negligence-Patient Materiality Rule:
Requires physicians to divulge all material risksthat is, risks that a reasonable patient would want
to know in deciding whether to undergo a specific procedure.
The failure to divulge a material risk is malpractice provided the patient can show that she would
have refused the procedure had the risk been divulged.
HYPOTHETICAL: Pexta decides to let Dr. Dial perform a nose job for cosmetic reasons.
Although Dr. Dial does nothing wrong in the surgery, Pexta loses her sense of smell as a result of
the surgery. Losing sense of smell is an inherent risk of the surgery. Pexta sues Dr. Dial for
malpractice, claiming that he should have divulged the risk. Doctors in good standing do not
customarily divulge this risk, although it is a material risk of nose jobs. Was Dr. Dial obligated to
divulge this risk in a professional rule jurisdiction? In a patient rule jurisdiction?
d. Rules for medical malpractice apply to architects, accountants and lawyers
(1) In order to prevail in a legal malpractice action, plaintiff must show that if not for the malpractice, they
would have prevailed in the underlying action.
D. PROOF OF BREACH OF DUTY
1. Plaintiffs burden prove every element of the prima facie case by a POE.
2. Just the happening of a bad result doesnt establish any sort of unreasonable conduct on the part of the
defendant.
a. Identify specific alleged unreasonable conduct.
(1) If you cannot, there are special hurdles to deal with.
3. Two types of evidence to show breach of duty.
a. Direct evidence. Very rare. Eye witness, videotape of the accident, etc.
b. Circumstantial evidence. Evidence from which one can reasonably draw a rational inference.
EXAMPLE: Father bakes a cherry pie and leaves it in the kitchen to cool. An hour later, a large chunk is
missing. He sees his daughters T-shirt, lips and teeth covered in red. This is circumstantial evidence that
daughter ate the cherry pie.
(1) Slip-and-fall cases
(a) plaintiff must show that the defendant was negligent for failing to discover and failure to remedy
the dangerous condition.
EXAMPLE: Pru is shopping at a market when she falls on grapes and breaks her leg. The only
proof is the injury. No evidence from which the jury can find unreasonable conduct on the part of
the market. If the grapes are blackened, she will get to the jury because the condition of the
grapes are circumstantial evidence that the grapes were there long enough that the market
should have discovered them and remedied the condition.
(2) Res ipsa loquitur (the thing speaks for itself)
(a) Arises when you cannot identify what the defendant did that was wrong but the situation smells
of negligence

14
 (b) Plaintiff needs to show:
1) Interference of negligence the harm would not normally occur absent negligence.
2) Defendant is probably the responsible party- has control over the harm-causing
instrumentality.
3) did not contribute to the injury.
EXAMPLE: Parm is watching DunCos livestock auction when a steer falls through the
ceiling and into his lap. Sues DunCo for negligence, DunCo says that there is no proof of
negligence on their part. Under res ipsa loquitur, jury can infer breach of duty if Parm can
prove his portion.
(c) Exclusive control is not required anymore. Just show that the is probably the responsible
party.
EXAMPLE: Trax goes to 7-11 and buys chewing tobacco manufactured by DrumBeat. When he
opens the tin, he finds a decomposed human toe. Trax sues DrumBeat for negligence. He
cannot show what DrumBeat did wrong, but can assert res ipsa loquitur.
(d) Can be used in the context of medical malpractice.
1) Common Knowledge Exception When equipment is sewn into a plaintiff or a sponge is
left inside a plaintiff after surgery, you dont need experts to establish that this is negligent
conducts.
(e) Multiple defendants: Where you have multiple defendants you usually cannot use res ipsa.
1) Exception Where a medical team is acting as a unit, they will be held jointly and
severally liable unless they can prove that they did not cause the injuty.
Only applies in limited context where all defendants are acting as a group.
EXAMPLE: Plaintiff goes in for an appendectomy and comes out suffering an injury to his
right shoulder. Several people worked on plaintiff while unconscious. Probably the result of
medical malpractice, but couldnt show who or what injured him.
EXAMPLE: Plaintiff walking down the street past an apartment building and gets hit in the
head by a flowerpot. He cannot sue all 30 tenants of the building because they are not
acting as a group.
(f) Jury can draw an inference of a breach of duty.
(g) Only applies in the context of the tort of negligence and only to proving the element of breach of
duty.
HYPOTHETICAL: Pashra is injured when a side of beef falls from the sky and hits her on the
head. All Pashra can show is that she was walking by DunCos Meat Storage Warehouse when
this occurred. Can Pashra maintain an action against DunCo?
E. CAUSE-IN-FACT (ACTUAL CAUSE)
1. The element of cause-in-fact ties the defendants breach of duty to the plaintiffs injury.
EXAMPLE: Jurisdiction has a law that all motorists must honk horns when they are driving on curvy roads to
alert oncoming traffic. If Dweezel is driving in violation of that statute, he would be negligent per se when he
collides into and injures Harve. Facts show that Harve is driving his brand new car with a state of the art sound
system and he is playing Metallica as loud as possible. Even though Harve might be able to establish the duty
owed to him was breached, he might lost his negligence claim because to establish causation, the general test if
but for. But for Dweezels failure to honk, more likely than not, Harve would not have been injured. It is likely
that Harve would not have heard the honk anyway. No causal link.
a. Plaintiff only has to show that it was more likely than not, plaintiff would not have been injured
EXAMPLE: Rochester mixed potable water line with sewage line. The line that has the drinking water is
called the Hemlock line, sewage line is called the Holly line. Stubbs contracts typhoid. City says there are
20 ways to get typhoid. As long as the plaintiff can show that it is more likely than not that the city was
responsible, he has established cause in fact. If the jury says there is a 75% chance the City is liable, the
plaintiff will still get all of his damages.
2. Four areas where cause-in-fact issues arise
a. Multiple causes
(1) Multiple defendants, defendant and act of nature etc.
(2) Substantial factor test:
Was the negligence of the defendant at issue: a substantial factor in the plaintiffs injury?
EXAMPLE: Landlord failed to provide hot water. Plaintiff heats water on the stove and carries it to the
bath. Child runs out and causes him to spill it on himself. Both landlord and child would be but-for
causes.
(a) Must use where either defendant alone would have brought about the harm
EXAMPLE: Abel negligently sets a fire. It by itself would burn down Parthenons mansion worth
$1M. Xena also sets a fire that would by itself burn down the mansion. They combine and
destroy the house. If Parthenon sues Abel, he cannot show but for his fire, his house would not
have been destroyed because Xenas fire would have done the same. Must use substantial
factor test.
(b) Assume joint and several liability:
1) Plaintiff can sue one or both defendants and collect: all that was owed and the other party
can seek contribution from the other party.

15
 b. Loss of chance
(1) Traditional application
EXAMPLE: Paulina goes to see Doctor. Doctor commits malpractice and fails to diagnose cancer. If
Doctor had made a timely diagnosis, there would have been a 40% chance that Paulina could survive
but by the time it is discovered, it is incurable. Paulina sues Doctor. Paulina will lose because she
cannot show more likely than not but for Doctors malpractice she would have survived. She already
had a 60% chance of death.
(2) Many jurisdictions recharacterize the injury:
(a) Damages are: reduced but not extinguished.
c. Alternative liability theory (Summers v. Tice)
EXAMPLE: Tice and Simonson are hunting when they hear a rattling of the bush. They both shoot in the
direction of the bush and end up shooting Summers. Only one of the two hunters is responsible for the
harm but Summers cannot show who it is. Cannot use but for or substantial factor test.
(1) Factors for application:
(a) Where you have a small number of s.
(b) Each of whom is negligent
(c) All before the court
(2) Burden shifts to defendant to show that they were not the cause. If a defendant cannot do so, then
they will be jointly and severally liable.
d. Market share liability:
(1) Generic product, plaintiff cannot show which of a large group of negligent defendants is responsible.
Plaintiff can sue:
(2) Court uses several liability: those who might have caused her harm. Each defendant is on the hook
for its share of the market.
EXAMPLE: Company A had 10% of relevant market, will pay 10% of the plaintiffs damages unless it
can show that it could not have made the product that caused the plaintiffs harm.
F. PROXIMATE (LEGAL) CAUSE
1. Unforeseeable extent of harm:
a. It doesnt matter that the plaintiff has suffered more harm than one would foresee. Defendant is
responsible for the full extent of the harm caused
EXAMPLE: Della is driving negligently and collides with and totals Pompadours Jaguar. Defendant says
most people drive old Toyotas worth $15,000. She will pay $15,000, not $100,000 suffered. This will not
hold.
b. Eggshell Skull Rule You take your victim as you find them
EXAMPLE: If Porter had a predisposition for brittle bone disease and Duane collides with him. Normally
$100 worth of harm, but Porter suffers $100,000 worth of harm. Duane is on the hook for the full extent of
the injury.
2. Unforeseeable type of harm
a. Use a rule of foreseeability or the risk rule:
Look at what makes the defendants conduct unreasonable and then ask if the injury suffered by the
plaintiff is within the risk created by the defendants negligence
EXAMPLE: Dom negligently leaves a jar of rat poison next to the stove with all of the other spices. Prissy is
using the stove and the heat from the stove interacts with the rat poison in a way that the jar heats up and
becomes a missile. Smashes into chandelier, breaking it and causing $20,000 worth of damage. Doms
lawyer could argue that even though Dom owed a duty to Prissy, and that he acted unreasonably, this is
not the foreseeable type of injury. The foreseeable injury would be ingesting the rat poison.
3. Unforeseeable manner of harm
a. Superseding Cause is an unforeseeable, intervening cause that breaks the chain of causation between
the initial wrongful act and the ultimate injury, and thus relieves the original tortfeasor of any further liability.
b. Culpability The more culpable the intervening force the more likely it will be superseding.
EXAMPLE: Dora negligently fails to provide adequate locks on the front door of the apartment building. Pav is
injured when he is mugged in the laundry room. Sues Dora claiming she owed him a duty. Even though there
was intervening criminal conduct, it will not be superseding because the harm was foreseeable based on the risk
of the defendant.
EXAMPLE: DunCo is a construction company. In violation of statute, they have a worksite that does not
have a barricade or flaggers to control traffic in the area. This is probably negligent per se because Parker,
a worker, is injured by a car that ends up on the worksite. The facts show that the car is being driven by
Xena, who is the ex-wife of Parker. She intentionally runs him over. Type of harm you can foresee is a car
driving onto the site, injuring the worker. DunCo would successfully argue that they were not the proximate
cause because Xena is a superseding cause.
EXAMPLE: Parker is taken to the hospital, goes into surgery and because Doctor commits malpractice, he
suffers an extra $100,000 worth of harm. Doctor is liable, both DunCo and Xena are both causes-in-fact.
They will all be liable as proximate cause.
c. Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability.
(1) Look for passage of time; at some point, liability will be cut off.
EXAMPLE: If Doctor decides to intentionally chop of Parkers leg when he is in surgery following the

16
 accident, DunCo and Xena will not be liable. Too freakish, unexpected and bizarre, and will cut off
liability.
HYPOTHETICAL: Dana negligently operates her auto and strikes Porter, injuring him. Porter, whose
leg is broken from the accident, is taken to a nearby hospital. While he is being treated for his broken
leg, there is an earthquake that causes the roof to collapse. A section of the roof strikes Porter on the
head, causing a concussion. Is Dana liable for Porters head injury?

UNFORESEEABLE
FORESEEABLE
(I.E., SUPERSEDING)

Chain of proximate causation unbroken; original Chain of proximate causation broken; original
Effect
defendant remains liable. defendants liability cut off for consequences of
antecedent conduct.

Typical Subsequent medical malpractice, including Criminal acts and intentional torts or torts of third parties,
Examples aggravation of plaintiffs condition. but only where they are unforeseeable under the facts or
circumstances.

Subsequent disease or accident, including all illnesses Highly extraordinary harm arising from defendants
and injuries resulting from plaintiffs weakened conduct, as viewed by the court, including grossly
condition, but not deadly, rare diseases. negligent conduct of third parties.

Negligent rescue efforts. Unforeseeable acts of God.

G. DAMAGES
1. A plaintiff must affirmatively prove damages. If plaintiff does not, they will lose
a. There must be a cognizable injury.
(1) Personal injury and property damages are recoverable.
(2) Nominal damages are not available, and punitive damages generally are not allowed.
EXAMPLE: Vet negligently neuters a dog against the plaintiffs wishes. Court will not allow the plaintiff
to recover because this is not a cognizable injury. The plaintiff was not planning to breed or show the
dog, so the plaintiff suffered no injury.
2. Compensatory damages
a. Designed to return the plaintiff to her pre-injury position.
b. Three rules:
(1) Type must be foreseeable.
(2) Reasonably certain
(3) Not avoidable
c. Two categories
(1) Special damages Tangible, pecuniary such as medical expenses, lost wages, cost of repairing a
car etc. Can recover for past, present and future damages. Future damages are reduced to present
value
EXAMPLE: If a four-year-old child is injured in a way that will not allow them to work ever again, we
must speculate as to what his lost wages would have been for the rest of his life.
(a) Collateral Source Rule:
The fact that the plaintiff is getting compensated from a third party source (insurance,
union contract etc.), doesnt mean that the defendant tortfeasor doesnt have to pay
them. Also applies to gratuitous services.
(2) General damages
More controversial because They are intangible. Pain and suffering. Very difficult to measure
d. Avoidable Consequences Rule (to be discussed in more detail under Defenses)
3. Punitive Damages
a. Never recoverable just for negligent conduct. Defendant has to be more culpable than negligent.
(1) Willful, wanton, malicious. Conscious disregard for high probability of harm.
b. Often called exemplary damages.
(1) Goal is to make an example of the defendant so he will not engage in the same behavior and others
will not as well.
c. Wealth of defendant is highly relevant.
(1) Due process clause limits the amount of punitive damage awards
(2) The U.S. Supreme Court has held that the due process clause usually limits punitive damage awards
to less than 10 times the size of the compensatory damages awarded [State Farm v. Campbell, 538 U.S.
408 (2003)]. The Court did so by stating, in relevant part, "in practice, few awards exceeding a single-

17
digit ratio between punitive and compensatory damages to a significant degree, will satisfy due process."

18
H. DEFENSES TO NEGLIGENCE
1. Contributory Negligence and Comparative Fault
a. Defendant has the burden of proof to show that the plaintiffs conduct was unreasonable and fell below the
relevant standard of care and was a cause in fact of plaintiffs own injury
b. The determination of the legal effect of the plaintiffs contributory negligence depends on the jurisdiction.
(1) Assume pure comparative fault where joint and several liability applies unless you are told otherwise
(a) Under contributory negligence Any fault on the part of the plaintiff is a bar to recovery.
EXAMPLE: If Precious was deemed 1% at fault and Diablo 99% of fault and Precious sues
Diablo, under contributory negligence, the fact that Perfection was 1% at fault would bar
recovery.
(b) Comparative fault reduces the plaintiffs recovery.
1) Pure comparative fault:
Plaintiff is allowed to recover no matter how much at fault he is, but you subtract away his
fault.
EXAMPLE: If plaintiff is 80% at fault and suffers $100,000 worth of damages, plaintiff will
recover $20,000 from negligent defendant.
2) Modified comparative fault:
If plaintiff is as much or more at fault, then the plaintiff is:
EXAMPLE: If plaintiff is 60% at fault, they will be barred from recovery. If plaintiff is 40% at
fault, the plaintiff would recover 60% of her damages.
(c) The last clear chance doctrine is generally going to be the wrong answer.
c. Comparative Fault:
Joint and several liability applies. If there are multiple defendants, each of whom are negligent and the
plaintiff is also at fault, we subtract out the plaintiffs percentage of fault and then the plaintiff can sue one to
get the full remaining amount of damages and then that defendant can seek contribution.
2. Assumption of Risk
a. Express assumption of the risk arises where:
Plaintiff through written or oral words relieves the defendant of their responsibility to be non-negligent
towards the plaintiff. Typically, a waiver that accompanies athletic activities and recreational sports.
(1) Void against public policy when dealing with a necessity.
HYPOTHETICAL: As a condition of entry to ski at Duns Ski Lodge, Mary signs a waiver stating that
she will relieve Dun of negligence liability. Marion Dun, in a moment of spite, sprays down a section of
snow to make it icy while performing her duties as a slope groomer, notwithstanding her supervisors
repeated warnings to her not to do so. Mary slips on the ice and breaks her leg. Has she assumed
the risk of her injury?
b. Plaintiff may also impliedly assume the risk.
(1) Plaintiff is barred from recovery or recovery is reduced under the assumption of the risk doctrine if
defendant establishes that:
(a) plaintiff had knowledge of and appreciated the nature of the danger involved
(b) plaintiff appreciated the specific danger that injured him; and
(c) plaintiff voluntarily chose to subject himself to that danger.
EXAMPLE: Plato gets in the car with Dickens. Dickens smells of alcohol and there is tequila in
the car. Dickens crashes the car and Plato is injured. Dickens can argue that Plato elected to
get into a car with a drunk driver and assumed the risk.
c. Assumption of the risk is a subjective focus while contributory negligence and comparative fault is an
objective focus.
EXAMPLE: Both Dickens and Plato are intoxicated. This would be relevant to Platos assumption of the
risk. There would be no assumption of the risk, but there would be comparative fault.
d. Professional rescuers (Firefighter Rule):
Where the plaintiff professional rescuer is injured in doing her job, due to an inherent risk of that job she
cannot recover in negligence against the person who created the need for her to do her job
EXAMPLE: Dorkus is smoking in bed and falls asleep and his house catches on fire. Francine Firefighter
suffers smoke inhalation when fighting the fire and sues Dorkus for negligence. Under the rule, she will not
be allowed to recover because she assumed the risk since it is part of her job.
e. Primary assumption of the risk:
In certain contexts, a defendant has no obligation to act non-negligently towards the plaintiff. There is no
duty owed.
EXAMPLE: Paxton decides to play basketball and gets tripped and injured by Duncan. If Paxton sues
Duncan, under primary assumption of the risk, courts would say that an inherent risk is that another player
might be negligent. In agreeing to play, you have relieved Duncan of the duty to be non-negligent.
3. Avoidable consequences:
a. A plaintiff has an obligation to take reasonable steps after injury not to exacerbate the injury
EXAMPLE: Drew negligently injures Polly, causing $10,000 worth of damages but Polly refuses to seek
medical help and her damages go from $10,000 to $100,000, Drew can say he does not owe the extra
$90,000.
b. Often arises where plaintiff does not wear a seatbelt or a motorcycle helmet and suffers increased damages as

19
 a result.

III. STRICT LIABILITY

A. Three Contexts in Which Strict Liability Arises:

1. Animals
2. Abnormally dangerous activities.
3. Defective products.
B. Definition
In strict liability, defendant is liable for injuring plaintiff whether or not defendant exercised due care. As to certain
activities, the policy of the law is to impose liability regardless of how carefully defendant conducted himself
C. Categories
1. Possession of animals
a. Wild Animal Rule If the defendant keeps a wild animal and the plaintiff is injured because the animal
does something characteristic of that animal, the keeper is strictly liable no matter how unforeseeable it is
that the harm would occur
EXAMPLE: Damian has a pet tiger. Has always been gentle, but Paxton is visiting and the tiger bites off his
hand. No matter how unforeseeable, Damian is liable.
b. Domestic Pet Rule One free bite. Absent a statute for strict liability, the keeper of a domesticated pet is
not liable unless the keeper knows or should know of the animals dangerous propensity
2. Abnormally dangerous activities
a. An activity is abnormally dangerous when there is an evitable high risk of serious harm and it is not a common
activity
EXAMPLE: Blasting or dynamite, crop dusting, transporting toxic waste, fumigating.
b. Plaintiff can recover when absent proof of fault as long as the defendant was involved in an abnormally
dangerous activity and that the activity caused the harm
(1) Proximate cause issue:
Plaintiff has to be injured by a risk that makes makes the activity abnormally dangerous.
EXAMPLE: Nemo is blasting and the noise freaks out the minks on Pierres mink farm to the point
that the mother minks start to eat their kittens. Pierre is upset and sues Nemo and says strict liability.
Although Nemo was blasting, this is dangerous because it causes debris and destruction, not
because it causes minks to eat their kittens. Not abnormally dangerous. Pierre can only recover upon
proof of fault.
HYPOTHETICAL: Dinah Mite, an explosives dealer, accidentally drops a pallet of boxes containing
explosives on Patella, breaking her leg and pinning her to the ground. Accident investigators on the
scene later that day are injured when one of the destabilized explosives detonates. Is Dinah
potentially subject to strict liability for Patellas injury? For the accident investigators?
C. DEFENSES
1. Contributory Negligence
a. MBE Rule Where strict liability is applicable, defendant generally may not raise contributory negligence
as a defense
Exception: Where plaintiff knew of the danger that justified imposition of strict liability, and his contributory
negligence caused exactly that danger to be manifested, such contributory negligence will bar plaintiffs
recovery, assuming the jurisdiction applies the traditional contributory negligence doctrine.
EXAMPLE: Parm is driving on the highway and he is listening to the radio when he sees a sign that says
Danger: BlastingTurn off your radio that Dynaco had posted. Parm did not turn off his radio. There is an
explosion and he sues Dynaco in strict liability. They can assert a defense that he knew of the danger. If
Parm were speeding and did not see the sign, he gets full recovery.

IV. PRODUCTS LIABILITY

NOTE: This is not the name of a tort, but an area of tort liability where the plaintiff is injured due to product related harm.
Legal theories: negligence, breach of warranty, strict products liability.
A. STRICT PRODUCTS LIABILITY IN TORT
1. Focus is on the condition of the product that the defendant has put into the market
2. There are eight elements of strict products liability.
(1) Proper plaintiff
(2) Proper defendant
(3) Proper context
(4) Defect
(5) Cause in fact

20
 (6) Proximate cause
(7) Damages
(8) SPL Defenses

a. Proper plaintiff
(1) In general, if strict liability is otherwise applicable, any plaintiff who is a user, consumer or bystander
injured while using a defective product may recover damages from an appropriate defendant.
EXAMPLE: Arlene buys a chainsaw manufactured by DiceCo. Arlene lends it to her neighbor Brian.
He lends it to Placido. Placido suffers injury due to a defect. As a user, Placido can sue DiceCo in
strict products liability. If his wife is injured as a bystander, she can sue DiceCo as well.
b. Proper Defendant
(1) Commercial suppliers at all levels of the distribution chain and those in the market of selling the
product are potential defendants.
(a) This includes manufacturers, wholesaler, retailer.
(b) This does not include occasional sellers and those supplying services (i.e., an optometrist)
cannot be strictly liable
EXAMPLE: If Duncan sells a chainsaw at a garage sale and Placido is injured, Duncan cannot
be sued.
c. Proper Context for Strict Products Liability
(1) Generally, providers of services are not held strictly liable for injuries received by their customers.
(2) When there is both a service and a product:
If defective goods are supplied along with services, strict liability is still not applicable, so long as the
goods supplied were merely incidental to rendition of the services.
EXAMPLE: Prudence goes into defendants beauty salon and wants a perm. Valente chooses a perm
manufactured by DunCo and applies it to Prudence. Prudence goes bald and sues Valente in strict
liability. Court says that the product predominates and Valente can be a proper defendant in strict
products liability. Different from a dentist using a defective needle to administer Novocain.
d. Defect
(1) Almost all jurisdictions impose strict liability where a product is in a defective condition unreasonably
dangerous.
(a) Formulations of liability occur under three categories of defects:
1) Manufacturing Defect
a) A product manufactured in a form other than the manufacturer intended contains a
manufacturing flaw
EXAMPLE: Toe in the chewing tobacco.
b) Plaintiff must show that:
Product is more dangerous than a consumer would reasonably expect when using
the product in its intended manner or it is in a condition not intended by the
manufacturer and the defect existed at the time it left the defendants hands.
2) Design defects
a) A product manufactured as the manufacturer intended but that still presents a
danger of personal injury or property damage to plaintiff suffers from a design defect
EXAMPLE: Ford Pinto. Due to the placement of the gas tank, it would explode upon
minor collision. Ford designed the car this way, but it was still faulty.
b) Ordinary Consumer Expectation Test:
A product is in a defective condition unreasonably dangerous when it is more dangerous
than would be contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics.
EXAMPLE: Plaintiff is injured when he is at his workplace using safety goggles. The
goggles only protect the front, but not the side. Plaintiff is welding and a piece of
metal flies into his eye. Plaintiff sues for a design defect, saying that the design of
the goggles should have protected the side. Plaintiff loses under this approach.
Ordinary consumer would not expect side protection.
c) Risk-Utility Balancing Test:
A product is defective if a jury determines that the danger it threatens (the cost in
human injury and property damage) outweighs its utility to society. The danger-utility
test balances the likelihood, nature, and potential severity of injuries caused by a
product against:
i) A products design is usually defective under this test if an alternative design
could have reduced the danger at about the same cost
EXAMPLE: Death Trap Motors decides to market a car called the Stallion.
Designed to be lightweight and fuel efficient and places the gas tank in a
location, encased in light metal. Pon buys a Stallion and is driving when he is
rear-ended at 5 mph. Stallion explodes and Pon is severely injured. Proper
defendant, plaintiff, product. Risk-utility balancingmust show risk of placing
gas tank outweighs utility and that there is some reasonable alternative design.

21
 d) Some products are exempt from being found defective in design under strict products
liability under Comment K. Some products have extraordinary social utility and no
alternatives.
EXAMPLES: Vaccines, prescription drugs
3) Warnings
a) A plaintiff is asserting either:
i) A warning is inadequate
a. Test Does the warning reasonably inform the reader of significant risks?
- Consider language, placement, and size of font.
EXAMPLE: DunCo manufactures rat poison and it puts on the product a
skull and crossbones and it says DangerKeep Out of Reach of
Children. Child thinks it is pirate food, eats it and dies. Warning could be
made better.
ii) Failure to warn
a. Test Manufacturer has to warn about risks of which it knows or should
have
- Consider gravity and probability of harm.
EXAMPLE: Rat Probe Inc. makes an OTC weight loss medication called
Weight-Off. Plashawn is shopping at Target, buys it, uses it and suffers a
stroke. There is a risk of stroke in people with high blood pressure who use this
product. Plashawn can sue Rat Probe and Target if he can show that Rat
Probe knew or should have known that there was this risk.
e. Cause-in-Fact
(1) That the injury is attributable to the defendant is usually proven by showing that the defect that injured
plaintiff was in existence at the time it left s control.
f. Proximate Cause
(1) Look for superseding and intervening causes which might cause the defect
EXAMPLE: Manufacturer mixes gasoline and kerosene and sells to a pharmacy. Pharmacy discovers
the mixture and calls the manufacturer and alerts them. Parmette comes in and buys the mixture. She
is injured and sues the manufacturer. The pharmacys act is superseding cause.
(2) Learned Intermediary Doctrine:
If a manufacturer provides a warning to a doctor, they can expect that the doctor will pass it on to the
patient. If he does not do so, the doctor is a superseding cause.

g. Damages
(1) May be recovered when there is injury to the person or property damage other to the product itself
(2) Where the harm is only to the product itself the only claim available is breach of warranty. No
negligence or strict product liability claim
HYPOTHETICAL: DunCo sells a defective truck to Paco. Because of the defect, one morning, Paco
cannot get the truck to start and thus is unable to make his scheduled deliveries, causing him to lose
$10,000. May Paco pursue a strict product liability action?
h. Defenses
(1) Misuse
(a) If a plaintiff uses a product in a manner that is neither intended nor foreseeable, she has misuse
the product and it cant be defective.
EXAMPLE: Parva stands on a chair manufactured by DunCo to reach a pot in her kitchen. The
chair collapses under her. While sitting is the intended use of a chair, it is foreseeable that a
person would stand on a chair, and thus, there is no misuse.
EXAMPLE: Plaintiff contracts a rash after Jello wrestling and sues. Wrestling in Jello is not the
intended use of the product, Misuse, product not defective, no recovery.
(2) Alteration
(a) Employers remove safety devices in order to make a machine more efficiently. No liability.
(3) Assumption of the Risk
(a) Comparative fault is no defense, only assumption of the risk is a defense.
EXAMPLE: Dumont manufactures a TV. Pan is watching TV and it is the final moments of the
final episode of American Idol. Pan sees that the TV is smoking and sparking, but refuses to
turn it off. TV explodes and burns a carpet and the sofa. Pan sues, Dumont can assert
assumption of risk. If he did not see the smoke and sparks, no assumption of risk.
B. PRODUCT LIABILITY ON A NEGLIGENCE THEORY
1. Any foreseeable plaintiff is entitled to bring an action.
2. Analyze the conduct of each defendant and ask whether it was reasonable.
a. Differentiate from strict products liability, which considers the product rather than the person.

22
 3. Res ipsa loquitur takes the place of a manufacturing defect in negligence theory.
4. Negligence defenses apply.
C. PRODUCTS LIABILITY ON A WARRANTY THEORY
1. An express warranty exists where made a representation as to the nature OR quality of the product.
a. This can occur via advertising, during negotiations for purchase, or as a provision of the contract of sale.
EXAMPLE: At a garage sale, Duma tells Xaviera that the knife she is buying is rust-proof. It ends up rusting and her
husband is injured. He can sue Duma for breach of express warranty.
2. An implied warranty
a. Warranty of Merchantability
(1) Where a merchant deals in goods of a particular kind, sale of such goods constitutes an implied
warranty that those goods will be merchantable, that is, they are of average quality for goods of that
kind and generally fir for the purpose for which such goods are normally used.
(2) There are privity and notice requirements.
(3) Can be disclaimed.
3. Where the harm is to the product itself, the only claim a plaintiff can pursue is a claim for breach of warranty.

V. NUISANCE
A. TYPES OF NUISANCE
1. Public Nuisance
a. A public nuisance is an unreasonable interference with a right common to the general public.
b. Typically brought by a government actor such as an Attorney General.
(1) To recover damages in an individual action for a public nuisance one must have suffered harm of a
kind different from that suffered by other members of the public.
EXAMPLE: Disney is going to place a billboard on a country street. The sign has bright lights and
plays the song Its a Small World over and over. It creates a huge traffic problem. This would be a
public nuisance.
EXAMPLE: Patasha runs a nursing home and those who live there cannot sleep due to the constant
music.
2. Private Nuisance
a. A private nuisance is a thing or activity that substantially and unreasonably interferes with plaintiffs use and
enjoyment of her land
b. Mental state:
Usually intentional, because once the defendant is placed on notice that their activity is interfering with the
plaintiffs use and enjoyment of the land and the defendant doesnt stop because the defendant knows that
their activity is interfering with the plaintiff.
EXAMPLE: DunCo owns a feedlot in the desert that smells. On certain days, the wind will blow the smell
towards a housing community that was constructed nearby. Petasha, who lives there, is revolted and asks
DunCo to do something about it. If DunCo doesnt shut down the feedlot, they are engaging in intentional
conduct.
c. There are five factors to consider when determining whether a nuisance is a substantial and unreasonable
interference.
(1) Value of the s activity
(2) Alternatives
(3) Nature of the locality
(4) Extent of the plaintiffs injury
(5) Who was there first?
EXAMPLE: DunCos feedlot was there first. How valued is their activity? Where else can they go,
how can they minimize the harm? How significant is the injury?
3. Remedies
a. Injunction
(1) To get an injunction, the plaintiff must persuade a judge that:
(a) they are suffering irreparable harm; AND
(b) damages are inadequate remedy.
(2) A judge must do a balancing of the equities to determine whether the plaintiff is entitled to equitable
relief.
VI. DEFAMATION
A. Checklist
1. Is it defamatory?
2. Pleading issues
3. Publication
4. Liable or slander
5. Common law privileges
6. First Amendment Issues

B. For a defamation action plaintiff must establish that defendant published defamatory material concerning that caused
reputational damage.

23
C. In analyzing an action for defamation, one must check for:
1. Defamatory message
a. A message is defamatory if it subjects the plaintiff to hatred, ridicule, contempt, or scorn or deters others to
deal with the plaintiff, causing reputational harm
EXAMPLE: Accusing someone of a heinous crime or of cheating on an exam.
b. The statement must be one which can be believed to be truthful and reputation-harming.
(1) Hyperbole is not defamatory
(2) Mere opinion cannot be defamatory
EXAMPLE: Acme law schools paper, Diatribe, says that the food in the student center has gone from
bad to worse. This is opinion and cannot be defamatory. If it says that it believes that week-old
vegetables are used in the food, even though it is couched in opinion language, it can be proven true
or false.
c. Must be defamatory in the eyes of a reputable group.
EXAMPLE: If the Nazi party paper publishes an article that says Prussia thinks that Hitler was a horrible
person and Prussia is a proud neo-Nazi, the court will not uphold this as defamation.
2. Pleading problems
a. Where the plaintiff is not named, they must allege that it is of or concerning her.
EXAMPLE: Law school paper publishes an article saying that the female torts professor has been arrested
for bank robbery. Professor Padding can sue that it is of and concerning her because she is the only female
torts professor and people will associate her with the statement.
b. A large group cannot be defamed.
EXAMPLE: An article is published saying that todays lawyers are unethical, greedy swine. There can be
no defamation claim.
(1) In a small group, every member can bring a claim.
EXAMPLE: If an article says that one of the surviving Beatles has been arrested for dealing crack
cocaine, Paul and Ringo can both bring an action for defamation.
c. Some statements may not be defamatory on its face.
EXAMPLE: Acme Law School dean is marrying Jane Doe. This is not defamatory on its face, but other
facts may make it so, such as the dean already being married.
3. Publication
a. Publication means someone other than the plaintiff read, saw or heard the defamation
b. Plaintiff must show defendant either intentionally published the information or was negligent in publishing
the information
HYPOTHETICAL: Dina sends a sealed letter to Paykta, accusing her of plotting a murder. The letter is
opened by Payktas new, very nosy roommate. The following week, Dina sends a postcard to Paykta
containing the same accusation. Will Paykta be successful in a defamation action for the letter? for the
postcard?
c. Republication Rule:
(1) In addition to the defendant who originates the defamatory message, other persons who repeat it
may be liable to plaintiff, varying according to their relationship to the original publisher
(2) Such republication may also increase the originators liability to plaintiff
4. Type of defamation and damages
a. Libel definition:
Historically, libel was a written form of defamation. Today, a defamatory message embodied in any
relatively permanent form is a libel. Examples include a sound recording, video recording, picture,
sculpture, etc.
(1) Reputational harm is presumed and damages do not have to be proved.
b. Slander definition:
Defamation in spoken, rather than written, form. Today, a defamatory message not preserved in permanent
form is classified as slander
(1) For plaintiffs to recover for defamation must prove special damages, which are specific economic
losses that flow from defamation
(a) Exceptions are called slander per se:
1) Slander which imputes to plaintiff behavior or characteristics that are: incompatible with
the proper conduct of his business, profession, or office is slander per se.
2) A slander that imputed to plaintiff the commission of a crime involving moral turpitude or
infamous punishment (imprisonment or death) is slander per se.
3) Allegations of plaintiff having a loathsome disease are slander per se. Historically, a
loathsome disease was one that was incurable and persisted over time, such as venereal
disease or leprosy.
4) It was slander per se to falsely impute unchastity to a woman.
5. Common law Privileges
a. Truth
(1) Historically:
Falsity was presumed once the plaintiff established the publication of a defamatory communication. In
other words, truth was a substantial defense. The defendant had to prove that the communication

24
 was substantially true.
(2) Today:
In all defamation cases, except possibly those where the plaintiff is a private plaintiff and the matter is
of private concern, the plaintiff must prove falsity as part of her prima facie case
b. Absolute Privilege
(1) Where an absolute privilege applies, defendant may not be held liable for an otherwise defamatory
message as a matter of law.
(2) Contexts in which absolute privilege applies:
(a) Communication bw spouses.
(b) Statements made on the floor of a legislature
(c) Statements made bw high-ranking officials.
(d) Statements made in the conduct of judicial proceedings
EXAMPLE: Congressman Doofus stands up on the floor of the legislature and says people, like
my opponent in my last race, who are child molesters should be in jail. Absolute privilege
applies, no liability.
EXAMPLE: On cross-examination of a witness, attorney asks the witness if they are still a
member of the Nazi party. Absolute privilege applies, no liability.
(3) Privilege ends if someone repeats the defamatory statement in a non-privileged situation.
c. Qualified Privilege
(1) Defendant loses an otherwise available qualified privilege if:
(a) Acts out of malice, knows accusation is false or is recklessly about truth or falsity of statement.
(b) Excessive publication.
(2) Gives greater leeway to speech, but qualified because they can be lost.
EXAMPLE: If X gets a call about a job reference for student A, but X gives a horrible recommendation
because he is thinking of student B. A sues X for defamation. Qualified privilege applies because the
information is of interest to a third person, but the privilege is lost if X is negligent or reckless as to the
truth of the information or if the information is published.
6. Constitutional Issues
a. Prior to 1964, there was no First Amendment issue defamation and defamation was a strict liability tort.
b. Since NY Times v. Sullivan, four questions are considered:
(1) What is the status of the ?
(2) What is the subject matter of the statement?
(3) What damages does the seek?
(4) What is the status of the ?
c. Public official:
(1) If defamation is related to capacity as public official, they must prove C&CE of actual malice.
(2) Defendant knew information was false or: recklessly disregarded truth or falsity.
HYPOTHETICAL: The Daily falsely states in an article that Mayor Pacher has been embezzling funds.
They based this on a source they had used before, who had proved to be reliable. Will Pacher be able to
recover for defamation?
d. Public figure:
Treated just like public officials. Have to prove clear and convincing evidence of actual malice.
(1) All purpose public figures household names.
(2) Limited public figures people who inject themselves into a particular controversy and try to have an
effect on that controversy.
e. Private figure:
Look at the subject matter and determine whether it is of public or private concern. Consider form, content
and context.
(1) Public concern If you are willing to prove your reputational harm (actual damages), the state can
set any standard of fault it wants as long as it does not impose strict liability. Most states use
negligence.
(a) Presumed or punitive damages require actual malice
(2) Private concern Plaintiff does not have to prove actual malice to prove presumed or punitive
damages. Unclear what is required.

VII. INVASION OF PRIVACY

A. INTRUSION INTO SECLUSION
1. This form of invasion of privacy is present when defendant unreasonably intrudes into plaintiffs seclusion
a. Does not require any publication of information.
b. Invasion must be done in a way that is offensive to a reasonable person.
EXAMPLE: Eavesdropping, wiretapping, stalking. Something visible in public is not a ground for intrusion.
2. Damages recoverable for invasion of seclusion include compensatory damages (e.g., mental distress
unaccompanied by physical injury) and, under appropriate circumstances, punitive damages

B. COMMERCIAL APPROPRIATION OF IDENTITY OR LIKENESS

1. Appropriation is an unauthorized use of plaintiffs identity or likeness for defendants commercial advantage

25
 a. The wrongful use of plaintiffs identity or likeness must be used in connection with promotion of a product or
service and not for a newsworthy purpose.
EXAMPLE: Duncan is the editor of Sports Today magazine. He wants to publish an article about baseball
star Paco and sends a writer to interview him. He takes a picture in which Paco is holding a can of Drek
soda. Drek uses the picture to start an ad campaign. Paco sues Sports Today and Drek. Paco will lose
against Sports Today but will win his suit against Drek for commercial appropriation.
C. PUBLIC DISCLOSURE OF PRIVATE TRUE FACTS
1. Plaintiff must prove four elements:
a. Disclosure
b. Private facts
c. Disclosure is highly offensive to a reasonable person
d. Not newsworthy
2. Look for the passage of time.
3. Need some sort of publication or dissemination of information.
4. Injunction might be possible since the information is truthful.
a. Not granted to enjoin defamatory speech since it is false.
5. Constitutional issues:
a. If the defendant gets information from public records, they cant be liable for sharing that information.
HYPOTHETICAL: Paul, a highly respected Washington lawyer, is HIV-positive. Only a few family members know
of his condition. In an effort to bring HIV-positive individuals to the publics attention, his brother sends an e-
mail to all of Pauls colleagues revealing his HIV status. Does Paul have a cause of action against his
brother?

D. PORTRAYAL IN A FALSE LIGHT

1. This tort is present when defendant publishes matters that portray plaintiff in a false light. Looks like defamation but
there is an argument that the information should not be defamatory.
EXAMPLE: Making a false statement that someone has cancer or is poor.
2. Plaintiff has to show:
a. Publication
b. Of false information
c. Divulging of information is highly offensive to a reasonable person
d. Some level of fault
(1) Parallel to defamation rules.

VIII. WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS

A. MALICIOUS PROSECUTION
1. Malicious prosecution arises when criminal proceedings are instituted by defendant, done for an improper purpose
and without probable cause, which terminate favorably to plaintiff and cause plaintiff damages.
EXAMPLE: Dilbert is angry with ex-girlfriend Petunia. He reads about a bank robbery, calls the police and tells
them that Petunia did it. If she is tried and acquitted, she can bring an action against Dilbert for malicious
prosecution.
B. WRONGFUL INSTITUTION OF CIVIL PROCEEDINGS
1. Similar to malicious prosecution only involving a civil prosecution
C. ABUSE OF PROCESS
1. Abuse of process exists where defendant intentionally misuses a judicial process (whether civil or criminal) for a
purpose other than that for which the process is intended. This tort also parallels malicious prosecution.
EXAMPLE: Dim attaches a piece of real property that belongs to Pushta. Claims he does it in order to preserve it
in order to pay off a judgment. The real reason he does it is that he knows someone else wants to buy it, so he
wants to pull it off the market.
IX. ECONOMIC TORTS

A. INTENTIONAL MISREPRESENTATION (FRAUD)

1. Plaintiff must prove four elements:
a. an intentional misrepresentation by
b. of past or present fact
c. made with scienter
d. on which the justifiably relies to his economic detriment
2. Generally an affirmative assertion of fact or an act of concealment.
a. Failure to disclose information is not a basis unless:
(1) there is some sort of fiduciary relationship; or
(2) there is an ambiguous or misleading statement that causes reliance
(3) defendant makes an assertion believing it to be true, subsequently discovers that it was false or that
circumstances have changed, and fails to disclose the truth or changed circumstances
(4) where defendant makes a false assertion not intending that anyone rely upon it, subsequently discovers
that plaintiff intends to act in reliance upon the false assertion, and fails to disclose that the assertion was

26
 false.
3. Mental state:
a. Defendant must intend that plaintiff or a class of persons of which plaintiff is a member will act or fail to act
in reliance on his misrepresentation.
b. Scienter is present when defendant makes a misrepresentation knowing it to be false or reckless
possessing insufficient information as to its truth or falsity.
EXAMPLE: Dinah tells Porter that the corn that she is selling him is Grade A when it is Grade B. Porter
sues for fraud. Clearly she intended him to rely, but if Dinah accidentally looked at the wrong invoice, he
would lose his fraud claim because there is no scienter. She might be negligent.
B. NEGLIGENT MISREPRESENTATION
1. GR has no duty to avoid the negligent infliction of pure economic loss.
EXAMPLE: DunCo deals with dangerous chemicals and starts a chemical fire. To prevent harm to businesses in
the area, they notify plaintiff to evacuate. Plaintiff loses $1M in business because they had to be shut down.
Plaintiff sues DunCo and loses. If the fire had damaged plaintiffs building, then they would be entitled to recover
for economic losses that flow from that.
a. Exception special relationship.
EXAMPLE: A lawyer prepares a contract for a client and drafts it negligently so that the client loses $1M
and the client sues for malpractice, the lawyer cannot avoid liability because it is purely an economic loss.
There is a fiduciary duty.
Accounting firm does its job negligently and misstates the value of the company that hires the accounting firm.
If the hiring company suffers harm as a result, they can recover.
2. Who beyond a party who is in privity of contract can recover?
a. If the defendant knows that they are acting for the benefit of a third party and that the end and aim is to
benefit this third party and the third party relies and suffers economic loss, they can recover.
EXAMPLE: If Xerox hires Deloitte to do an audit because Xerox wants to get a $10M loan to fund a new
product line. Deloitte is negligent and overstates the value of Xerox. First National Bank, who lends Xerox
$10M, wants to sue Deloitte when Xerox goes bankrupt. Because Deloitte knew they were auditing to
benefit the banks in town and they could see the reliance, a duty is owed.
b. In the context of lawyer/client relationships- non-parties can only recover in the context of will-drafting.
C. INTERFERENCE WITH CONTRACTUAL RELATIONS
1. Two elements:
a. Defendant knows that there is a K bw and 3rd party.
b. Defendant acts with the purpose of having the K breached or making it harder to perform.
EXAMPLE: DinCo approaches Xavier Co. and says that they want a kind of widget. They knew that Xavier
has a contract with Portie Co. to sell all of their widgets. DinCo says they will pay Xavier 3 times the
amount Portie is paying and Xavier agrees. Portie will win if they sue DinCo.
D. INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
1. This tort protects the probable expectancy interests of future contractual relations of a party.
2. Plaintiff can prevail only by showing that the defendant:
a. Knew of the prospective economic advantage
b. Acted to interfere with it for improper motives.
HYPOTHETICAL: Deena really wants to get a job as an associate at a large Washington law firm. From a friend
of hers at the firm, Deena learns that her main competitor for the job is Paul. Concerned that Paul will beat
her out for the job, Deena starts a rumor that Paul is unreliable and lied about being admitted to the bar.
Paul does not get the job. Will he have a cause of action against Deena for interference with prospective
advantage?
E. INJURIOUS FALSEHOOD (TRADE DISPARAGEMENT)
1. Plaintiff must prove:
a. false statement
b. Actual malice or that the defendant knew the statement was false or recklessly disregarded truth or falsity
c. Made to another or published
d. Causing specific economic injury to the plaintiff
EXAMPLE: Owner of Music Company, Owen, is approached by Connie who asks if they have the Barry
Manilow/Lady Gaga duets. Owen says no and Connie asks if Parker Records does. Owen knows that they
do, but does not want to give them business and says no. If Parker finds out, they could recover for
injurious falsehood.
X. MISCELLANEOUS TORT CONCEPTS
A. VICARIOUS LIABILITY
1. Employer/Employee (Respondeat Superior)
a. An employer is liable for injuries caused by the negligence or strict liability of an employee if the tortious act
occurred within the scope of the employment.
EXAMPLE: Vinny is driving a van for Dominos. Drives negligently and collides with Palethia. Vinny is
negligent in scope of employment and Palethia can sue Dominos. By virtue of being an employer, they are
vicariously liable.
b. Employers can seek indemnity from employee but rarely do so.
c. Employers can be directly liable if they are negligent in hiring.

27
 EXAMPLE: If Dominos hired Vinny when they knew that he was a bad driver or failed to do adequate
background checks, they will be directly liable.
d. Intentional torts committed by an employee Are generally not given respondeat superior effect, even if
committed during working hours
(1) Exception:
If an employee uses force, even misguidedly, wholly or partly to: further the employers purpose, such
use of force may fall within the scope of employment, resulting in vicarious liability for the employer
EXAMPLE: Bouncer at a bar commits a battery when ejecting an unruly patron. Bar owner could be
vicariously liable even though it was an intentional tort.
2. Independent Contractor
a. A defendant generally is not liable for torts committed by someone he has engaged as an independent
contractor, because has no right to control the activity of the contractor.
b. Whether a person is an independent contractor rather than an employee depends on whether the person
who hired them dictates the means, method and manner. The more control exercised by the person who
hired them, the more likely that person is an employee.
3. Parent/Child
a. A parent is normally not vicariously liable for a tort committed by her child. A few courts that have imposed
vicarious liability on a parent for the tort of a child characterized the relationship as principal-agent, akin to
employer/employee, where the child was running an errand for the parent.
B. ABATEMENT/SURVIVAL OF ACTION AND WRONGFUL DEATH
1. Common law The death of either the victim or the tortfeasor abated a tort action bw them.
2. Survival Statutes The death of the victim or tortfeasor no longer abates the tort action and the claim can be
brought by the estate of the deceased
3. Wrongful Death Statutes All jurisdictions statutorily provide for an action by which either heirs of a deceased
victim or the personal representative of the victims estate may bring an action against the tortfeasor responsible
for the victims death.
4. Loss of Consortium Where a spouse is injured, the surviving spouse may bring a claim for loss of consortium
for the intangible injuries of loss of comfort, companionship and access to sexual relations.
EXAMPLE: Deirdre is driving negligently and she hits and severely injures Poindexter. He is in great pain, is in
the hospital for six months and then dies from the injuries. He has a wife and minor child. Once Poindexter
has died, the estate can continue his claim through a survival statute. His wife can bring an action for loss
of consortium for the six months he was in the hospital. Once he dies, his wife and child can both bring a
claim for wrongful death, suing for own injuries suffered.

28
BAR EXAM APPLICATION
Question 2
Davids neighbor, Jack, is a musician and practices with his trumpet every day, late into the night. One day, David saw Jack
at the local grocery store. Frustrated by the amount of noise coming from Jacks house every night, David approached Jack
from behind and yelled, If you dont stop playing the trumpet, one day I am going to kill you. Unknown to David, Jack was
wearing the earplugs he wore to perform live and did not even know that David was speaking to him.
Dismayed by Jacks apparent indifference, David telephoned Jack and repeated the threat. Jack was shocked to discover
his neighbor disliked his music, and quickly apologized. That night Jack went to bed early and did not practice his trumpet.
In a cause of action against David for assault, Jack will
A) prevail, if the reason he refrained from practicing his trumpet was fear of retribution from David.
B) prevail, because he was upset by the telephone call and David should reasonably have known that he would be.
C) not prevail, because he was unaware of Davids statements in the store.
D) not prevail, because David said one day I am going to kill you.

29
BAR EXAM APPLICATION
Question 3
Larry, the owner of a small bookstore, is very concerned about a recent wave of shoplifters wearing sweatshirts with large
pockets and sneaking books out in the pockets.
Two days after the most recent shoplifting incident, on a particularly warm day, Tim entered Larrys bookstore wearing a
sweatshirt similar to those worn by the shoplifters. Larry noticed Tims sweatshirt and watched him spend over an hour
slowly moving through the various book stacks. Expecting the worst, Larry moved a large heavy book cart in front of the
front door, and called the police station to report a shoplifter.
Tim eventually moved to the cash register to pay for his selection of books. After paying for his books, Tim discovered his
exit was blocked by the book cart. Shortly thereafter, the police arrived and asked Tim to empty his pockets. Tim did not
have anything in his sweatshirt pockets.
Tims cause of action for false imprisonment will
A) fail, because the shopkeepers privilege will prevent the cause of action.
B) fail, because Tim was not harmed by the confinement.
C) succeed, because Tim was aware of the confinement.
D) succeed, because Tim was not in fact a shoplifter.

ANSWER:

30
BAR EXAM APPLICATION
Question 4
Dennis, age 11, takes his parents car for a joy ride. Because Dennis has never driven a car before, he loses control of the
car and collides into Pedestrian, breaking Pedestrians leg. Pedestrian sues Dennis in negligence. Which of the following is
most correct?

A. Pedestrian will prevail because Dennis hit Pedestrian with the car.
B. Pedestrian will lose because Dennis is a child.
C. Pedestrian will prevail because Dennis failed to act as a reasonably prudent person would have.
D. Pedestrian will lose because Dennis had never driven a car before.
ANSWER:

31
BAR EXAM APPLICATION
Question 5
Frank received a new snowmobile for Christmas. The first week of January, a snow storm drops a foot of new snow in the
mountains. Frank decides to take his new snowmobile out for a spin. He is moving much too fast when he comes over a rise
and sees another snowmobile directly in front of him. He swerves to avoid the other snowmobile but loses control. His
snowmobile crashes into the other snowmobile. Fortunately, Hans, the driver of the other snowmobile, is not injured, but his
snowmobile has been rendered inoperable. Franks snowmobile still runs, so he goes for help while Hans stays behind with
his damaged snowmobile. While Hans waits for Frank to return, a large branch of a nearby tree snaps under the weight of
the heavy, new snow. The branch falls and hits Hans, causing Hans to break his collar-bone and left arm.
If Hans sues Frank for these injuries, Franks best defense would be
A) that he was not negligent.
B) that Hans was negligent in standing near a tree with snow-laden branches.
C) that the falling tree branch was an intervening and superseding force.
D) that his negligent conduct was not the actual cause of Hanss injuries.

ANSWER:

32
BAR EXAM APPLICATION
Question 6
In order to facilitate street cleaning, the Metropolis city council passed an ordinance barring motorized vehicles from driving
through the city center from 5 a.m. to 6 a.m. on Tuesdays. One Tuesday, the defendant, who is a resident of another city,
was speeding through the Metropolis city center at 5:30 a.m., when he hit a pedestrian. The defendant did not know about
the ordinance. The pedestrian has sued the defendant on a negligence cause of action.
What is the most likely result?
A) The pedestrian will prevail, because the defendant violated the ordinance by driving through the city center at 5:30
a.m. on a Tuesday.
B) The pedestrian will prevail, because the defendant failed to act reasonably under the circumstances.
C) The pedestrian will not prevail, because the defendant did not know about the ordinance.
D) The pedestrian will not prevail because the local ordinance will not establish the standard of care.
ANSWER:

33
BAR EXAM APPLICATION
Question 7
Crossing a busy street at night, a walker failed to look before crossing and failed to use a clearly marked crosswalk 50 feet
away. The place where the walker crossed should have been brightly lit, but it was dark. The local county, where the walker
was crossing, negligently failed to replace a street light despite several notifications from local citizens. While crossing, the
walker was struck by a driver, who was exceeding the speed limit.
The walker sued the driver and the county in the state of X, where the accident occurred. The state of X has a pure
comparative negligence statute and provides both for joint and several liability of joint tortfeasors and for contribution among
joint tortfeasors based upon comparative fault.
The jury has determined that the walker suffered $200,000 in damages. It also determined that the walker was 40 percent at
fault, the county was 10 percent at fault, and the driver was 50 percent at fault.
What is the amount of damages for which the county is liable?
A) Nothing, because the walker was more negligent than the county.
B) $20,000, because the county was 10 percent negligent.
C) $120,000, but the county can collect $100,000 from the driver if it pays the entire amount.
D) $120,000, but the county can collect $60,000 from the driver if it pays the entire amount.

ANSWER:

34
BAR EXAM APPLICATION
Question 8
One winter morning, Jan needed to get to the airport, so she called a cab. Due to the ice on the roads, traffic was terrible. With
less than an hour before her flight, Jan offered Carl the cab driver an additional $50 if he would find some way to speed up and
get her to the airport. Carl began to weave in and out of traffic. Carl lost control of the cab and crashed into another car. Dan, a
pedestrian, saw the accident and attempted to help. As Dan was attempting to help Carl out of the cab, Dan slipped and broke
his leg.
Did Carl owe Dan a duty of care?
A) Yes, Dan, as a rescuer was owed an independent duty of care.
B) Yes, because it was foreseeable that Dan could be injured.
C) No, because Dan assumed the risk of injury when he attempted the rescue.
D) No, because Dans negligence will bar his claim.

ANSWER:

35
BAR EXAM APPLICATION
Question 9
A-One Bicycles has been making the best bicycles around for three generations. Mitchell, the grandson of the founder of A-
One, takes great pride in the quality of A-Ones bicycles. Mitchell personally supervises the assembly line eight hours a day
to ensure quality, so that he can maintain his reputation in the industry. Despite Mitchells careful inspections, Mitchell is
unaware that the bicycle seats that he gets from Bike Components Unlimited are having problems. They fall off when
anyone over 150 pounds sits on them. A-One sells its bicycles through the retailer, Bike Mart, among others. Phister buys an
A-One bike from his local Bike Mart. Phister takes the bike out for a spin, and as he makes his first turn onto a busy street,
the seat falls off. Phister falls in front of oncoming traffic and is severely injured. Phister sues Bike Mart and A-One in strict
product liability.
Which of the following is true?
A) Phister cannot recover against Bike Mart, because it sold the bike exactly as it received it.
B) Phister should not prevail against A-One, because it exercised due care and the faulty bike seat was Bike
Components fault.
C) Phister should prevail against A-One, regardless of whether A-One or Bike Components introduced the defect.
D) Phister should not prevail against Bike Mart but should prevail against A-One, because A-One manufactured the
bicycle.

ANSWER:

36
BAR EXAM APPLICATION
Question 10
Marlin owns a ranch on which he takes care of animals that have been retired from show business. Ranch residents include
a lion, a tiger, and two brown bears. Marlin attempts to provide the appropriate habitat for each type of animal, much like a
zoo. One day, to his dismay, he discovers that the brown bears have somehow managed to escape. Marlin immediately
begins telephoning the owners of the properties adjoining his ranch to warn them about the escaped bears. The first
neighbor he calls is Potter, who owns a ranch directly to the west of Marlins. Potter keeps bees on his land to produce
honey. His beehives are some distance from his house but visible from his kitchen window. While Potter is speaking to
Marlin, he chances to look out the window just in time to see two bears flattening his prized beehives. After a slight pause,
he says, Uh, Marlin, I know where your bears are.
If Potter sues Marlin for the damage to his beehives caused by the bears, he will most likely
A) prevail, but only if Potter did not provoke the bears in any way.
B) prevail, if Marlin failed to exercise the appropriate standard of care in confining the bears.
C) prevail under a theory of strict liability.
D) prevail if he can demonstrate that he was not negligent in the maintenance of his beehives.

ANSWER:

37
BAR EXAM APPLICATION
Question 11
Gerry and Marcia were both trial attorneys, specializing in criminal defense. Both Gerry and Marcia attended the annual
conference of the countrys largest association of criminal defense attorneys. The conference is held at different sites each
year, and attorneys gather to discuss the latest developments in criminal law. Although Gerry and Marcia have never met,
they are familiar with one another professionally. At a reception held during the conference, Gerry approached Marcia. Gerry
said, Marcia, Ive admired your work for some time. Im opening an office in your state. Perhaps we could pool our
resources and become the most powerful attorneys in the state. Marcia replied, I will never work with you. Youre an
unethical low-life. Several other lawyers who happened to be nearby overheard Marcias reply.
Will Gerry succeed in a defamation suit against Marcia?
A) No, because there was no publication.
B) No, because only Marcia and Gerry were parties to the conversation.
C) Yes, if Marcia knew the comment would be overheard.
D) Yes, if it was reasonably foreseeable that the comment would be overheard by someone.

ANSWER:

38
BAR EXAM APPLICATION
Question 12
The Gotham Daily Tattler, a tabloid newspaper, reported that Daniel Meld, a billionaire real estate developer and casino
mogul who was considering running for President, had recently been treated for chronic alcoholism in an inpatient clinic
affiliated with Gothams largest hospital. In fact, Meld had undergone a series of cosmetic procedures in order to enhance
his chances of winning his partys nomination and, ultimately, the presidency. Two days after the story broke, Senator John
Blutarsky, the highest ranking elected official in Melds party, while engaged in a filibuster began reading the lead stories
from newspapers all across the nation, including the Meld article from the Tattler. Blutarsky is an outspoken supporter of
Melds main rival for the partys nomination.
What is the likely result if Meld sues Blutarsky for defamation?
A) Blutarsky will win, if he reasonably relied on the newspaper article.
B) Blutarsky will win, because he was privileged to make the statements.
C) Meld will win, if can prove actual malice.
D) Meld will win, because the statement was slander per se.

ANSWER:

39
40