Frequently

Frequently Tested Topics

Intentional Torts:
1. Battery
I. Intentional Torts: 2. Assault
a. Elements: 1) voluntary act; 2) *intent (desire OR substantial certainty), 3) causation (D¶s act must cause dmgs.), 4) harm/dmgs, 3. False Imprisonment
5) no privilege/defense 4. IIED (no transferred intent)
1. Battery: 1. * Intent (to make contact); 2. Cause offensive or offensive contact; 3. Person or something closely related to person 5. Trespass to Land
(pl. does not have to be aware of battery). 6. Trespass to Chattel
Defenses: consent (must be effective/scope), self-defense (cannot be initial aggressor, reasonable force, some juris.
Require retreat, defense of others (stand in their shoes), defense of prop. (must make demand that cease, never deadly)  Negligence:
1. Duty (std. of care)
2. Assault: 1. Intent * 2. To cause reasonable apprehension 3. of an immiment battery (Pl. must be aware & attempted battery
2. Breach
sufficient) Defenses ± all battery defenses
3. Causation
3. False Imprisonment: 1. Intent* 2. Confinement 3. Against Pl¶s Will 4. Pl. KNOWS of confinement OR is injured thereby. (Pl. a. Cause in fact
must be aware of confinement OR suffer harm ± no duration requirement, but long duration may affect damages, reasonable  b. Proximate cause
means of escape does not include ± dangerous/embarrassing means).
4. Damages
Defenses: same as battery, lawful arrest, shopkeeper¶s privilege (probable cause)
5. Defenses
4. IIED: 1. Intent* OR Recklessness 2. Extreme & outrageousness conduct 3. Causation 4. Severe emotional distress (offensive Palsgraf ± duty only to foreseeable Pls
language no except common carriers or Pls w. known sensitivities, women, children, workplace insults with minorities, most Rescuers per se foreseeable
states no longer require pl. to show phys. Inj.)
5. Trespass to Land: 1. Intent (simply to enter land) 2. Entry 3.Upon Pl¶s Land (mistake NOT a defense, possessor of land has COA, nominal damages, where
willful.wanton maybe punitive, liable for full extent of harm). Person not liable for negligent trespass unless he does dmg to the land  .
Damages: Ejectment (for trespass to land) 1. Proof of legal title 2. Proof of Pl¶s rt to possession 3. Wrongful possession by D
Damages = recovery of land + FMRV for use of land or benefit gained by possessor whichever greater.
Defenses: consent, entry to reclaim D¶s property, entry by necessity, entry to abate private or public nuisance
6. Trespass to Chattel: 1. Intent 2. Interference 3. Pl¶s chattel or personal property 4. Harm/dmgs. (mistake not a defense, must be in actual possession or have rt. to
 possession @ time of CO A).  Liable for dmg or diminished value of chattel or Reas. Rental Val.
 Note: Intermeddling ± an interference w chattel that does not directly affect the Pl¶s possession. (smearing mud on car, kicking dog).
Defenses: consent or necessity (same with conversion)
7. Conversion: 1. Intent 2. Dominion AND control 3. Substantial Interference (Mistake no defense) liable for full value
Dmgs. Replevin: (personal prop.) action for recovering sp. Chattels that have been wrongfully taken or detained. Any dmgs. suffered from the deprivation
may also be recovered. Mkt value (chattel) @ time of deprivation ± mkt value @ time action commenced
Defenses: POPCANS, Defenses to Consent: Mistake (fact or law); fraud; duress; incapacity; violation of crim. Statute
Shopkeeper¶s Privilege (Authority Defense): 1. Reasonable Suspicion 2. Reasonable Time 3. Reasonable Manner 

II. Negligence
1. Duty: Did D have duty to P to conform to certain standard of conduct? To  foreseeable Ps only. (foreseeable if within the zone of danger at the time of D¶s
negligence) Tradit rule: No affirm duty to take action to aid/protect P at risk of injury unless such action is taken. EXCEPTIONS: 1) D responsible for 
 placing P in position, 2) once D takes action to aid must exercise due care, 3) special relationship btwn P and D and duty to control others (children) 4) duty
to control 3d parties when special relationship.
2. Standards of Care (duty): Reasonable person Std. ±  always state what D should have done. (no vol. intoxication or  Mnemonics
mental illness ± but will take emergency situations under consideration). OBJECTIVE STD.  ±  Judge H¶s formula
 Burden less than Risk of loss Defenses for Int. Torts
Stds. For Professionals (malpractice) - experts required unless obvious negligence. Specialists held to national std., POPCANS=Privilege, defense of 
general std.- locality rule. Others, defense of Property, Consent,
Negligence Per Se/Statutory - supersedes CL, (lack of license NO), sets std. of care, 1. Is Pl.is the class of statute Authority¸ Necessity¸ Self-defense
was designed to protect? 2. Harm suffered intended?
Special Stds - auto guests ± auto driver is liable to non-paying guest only if the driver was reckless., owners and R-Reckless
occupiers of land, innkeepers and common carriers ± highest duty I-Intentional
Landlord Duty to Warn -  Patent defects dangerous/natural conditions that should be apparent. NO DUTY TO  N-Negligent
WARN. If latent (no duty to inspect) and not reasonably apparent to T- LL has duty to warn of dangers and repair  G±Grossly Negligent
them.
Trespasser, undiscovered NO DUTY Special Duties:
Trespasser, known or anticipat ed Ord. Care, duty to warn of dangerous conditions that are 1. Contractual duty
known 2. Innkeepers and guest
Licensee (w/ consent, not to confer $ benefit) No duty to inspect, ord. care, duty to warn of artificial 3. Common carriers and passengers
dangerous conditions known to possessor. 4. School and pupils
Invitee (held open to public, $ benefit), treated as licensee Ord. care, duty to inspect premises and make safe.
when they exceed scope of invite Standards of Care:
3. Breach: Res Ipsa Loquitor ± (ONLY APPLIES TO NEGLIGENCE + BREACH) Pl. did NOT con tribute to har m and 1. Reasonably Prudent Person Under 
D is responsible (or control) over the harm controlling instrumentality. the Same or Similar Circumstances
4. Causation: Cause in Fact ± ³But For´ Test OR Substantial Factor Test ±  pl. has to show that more likely than not 2. Children (age, experience,
D is the cause & pl. would not have been injured. Where mult. D¶s ± Joint and Several Liability, Ybarra (smoke out ±  intelligence ± except when adult
med. context). Mkt Share Liability ± apportionment ± several liabilty conduct)
5. + Proximate Cause ± (must have this and cause and fact) ±  duty to foreseeable pls, including eggshell. D¶s conduct 3. Statutory/Negligence Per Se ± sets
must be a proximate (legal) cause of injury. What is foreseeable ± rescuers, medical injuries. Superseding Causes: std. of care
unforeseeable, intervening cause that breaks the chain of causation & thus relieves the org. tortfeasor of  4. Professionals (custom in industry)
further liability. Acts of God, suicide, crim. Acts or torts of 3 rd persons, extra. Forms of neg. conduct
6. Damages: Pl. must prove actual damages. No nominals. Punitives/exemplary generally not allowed (but P&S is). No atty¶s fees. Pl. has a
duty to mitigate. (Avoidable Consequences Rule). Don¶t forget C ollateral
ollateral source rule.
a. Compensatory (general): (make the Pl. whole) 1. Must be foreseea foreseeable
ble 2. Must be reasonably certain
b. Special dmgs: entitled to recover for past, present and future, but reduce future dmgs. to PV. ($ dmgs. ± easier to measure).
Emotional Distress: 1. Zone of Danger 2. Suffered some accompanying physical manifestation of ED w/ 2 exceptions: 1. D transmits telegram
announcing death of loved one and 2. D negligently mishandles a corpse. Bystander Actions: 1. Zone of danger 2. Physical manifestation 3. Close
familial relationship.
relationship.
 Defenses to Negligence
1. Contributory negligence
2. Comparative Negligence,
assume Pure Comparative on
7. Defenses to Negligence: 1. Contributory Negligence (ANY fault by Pl. even 1%), complete bar to recovery,
Bar Exam
may be excused in an emergency or rescue, mental defects of D may be considered . Imputed contrib. only if 
3. Assumption of Risk 
vicarious liability. Pl not barred if 1. D¶s conduct was willful, wanton or reckless. 2. Last Clear Chance ± if D
had the last clear chance to avoid the danger created by P¶s prior negligence. Injunctions
2. Comparative ± Pure ± always collects something. Modified/Partial ± dmgs apportioned only if D¶s resp. 1. Pl. must specifically show that
exceeds Pl. Pl. denied recovery if 50%+. she is about to suffer irreparable
3. Assumption of Risk (express consent AND knew & appreciated the danger but chose the risk). Void against injury for which $ dmgs not
 public policy (medicines) when dealing with a necessity, statute. May be only a partial bar depending on juris. adequate.
III. Strict Liability² Liable regardless of whether D exercised due care. Abnormally dangerous act. firewks no longer. 2. Balance of hardships supports
Possession of animals animal must have known dangerous propensities²one bite rule. Assumption of Risk only defense under  equitable relief 
MBE. Contrib. can only reduce recovery not a complete defense. 3. Public interest would not be
IV. Products Liability ±  when a defective product injures an appropriate Pl.(any person injured while using the product) when disserviced by the injunction.
only dmg. To product = breach of warranty only. Must show cause in-fact and proximate cause. Modern Trend ± let anyone 4. Pl. is likely to succeed on the
recover even if not using. Proper D- all commercial suppliers @ all levels. Occasional sellers not strictly liable but may be sued for  merits
negligence. Generally providers of svcs, not held strictly liable if defective goods are supplied along with services. But restaurants ± 
subject to. Docs, dentists, blood bank ± NOT Defamation
Defenses: assumption of risk (only if Pl. knew of defect), misuse of product, where D can show that his product was 1. A defamatory statement
subsequently altered in an unforeseeable manner by someone in the chain of distribution or a 3rd person±usually no liability to D. 2. Concerning the plaintiff/claimant
1. Manufacturing defect ± when product comes out in a condition that manuf. Did not intend or design. 3. Publication to 3rd party
2. Design Defect ± entire product line is defective. Comes out exactly as intended ± but something wrong w. it. 4. Harm/Damages (sometimes)
3. Warning Defect ± warning is inadequate or that there should be a warning.
a. Consumer Expectation Test - product is more dangerous than would be contemplated by the ord. consumer 
 b. Danger-Utility Test/Risk Utility Balancing Test ± danger it threatens outweighs its utility to society. Danger Slander Per Se
v. Usefulness ± considering the availability & cost of safer alt. designs. (product usually defective if alt. y Crime of moral turpitude,
design could have reduced the danger @ about the same cost.) some products have so much social utility y loathsome disease
they cannot be made safer. y incompatibility with
V. Products Liability on Warranty Theory ±see warranties handout  profession
VI. Nusiance ± 1. Public Nuis ance ± a. unreasonable interference b. right common to general public, to recover dmgs. in an ind. y unchastity
action for public nuisance the harm suffered must be different from that suffered by other members of the public. To maintain an
action to sue in public nuisance must have: 1. Standing, rt, to recover dmgs, 3. Have authority as a public agency to represent the
citizens. 2. Private Nuisance ± a. substantial and unreasonable interference b. plaintiff¶s use and enjoyment of land. Weigh reasonableness or unreasonableness of D¶s
conduct. May be intentional, negligent, or absolute.
IV. Defamation ± 1. Defamatory msg ± lowers Pl in esteem of community and discourages third persons from associating. Person rcving msg must that it concerns P.
D must at least be negligent with re. to publication. Types of Defamation: Libel: written or other permanent form, Slander; spoken, other non-permanent form, per se:
Crime of moral turpitude, loathsome disease, incompatibility with profession, unchastity.
Damages: 1. Special Dmgs ± pecuniary loss. Pl. must present specific evidence as to special dmgs, recover. Exceptions: S lander per se , and in some states all libel is
actionable w/out proof of sp. Dmgs, but CL required sp. Dmgs. unless - Libel on its face (no innuendo or ext. knowledge is required to understand the stmt¶s def.
nature), libel per quod  ± (innuendo or ext. knowledge is required to understand the stmt¶s def. nature). * many juris. Still require evidence of sp. Dmgs for libel per 
quod. 2. General Dmgs ± jury generally allowed to presume. 3. Punitives ± must show actual malice (what may be recovered = all sp. dmgs, including lost customers
and lost employment, dmg. To Ps reputation, Dmg to P¶s feelings, including med bills to Ed, punitive, when 1 st amnd. Issues only actual dmgs. and not punitive unless
P proves actual malice.
Defenses: 1. Truth, 2. Absolute Privileges: a. legislative proceeding, judicial proceedings, other official stmts. Of gov. officials, equal time broadcasts, and comml
 btwn spouses. 3. Common Law Qualified Privileges: stmts in D¶s own interest, stmts in the interest of 3rd persons, stmts in the interest of the public, reports of public
 proceedings, and fair comment opinions. 4. Consent
First Amendment Qualified Privileges:
1. Public Officials and well known Public Figures ± must prove ³malice´ (D knew stmt was false or acted in reckless disregard of truth.
2. Limited Public Figure ± ord. persons who voluntarily inject themselves into public controversy are treated as public figures if alleged defamation relates to their 
 position in the controversy but are treated as private persons if defamation occurs in other matters.
3. Private Persons - must prove negligence with regard to truth when D is a member of the media, jurisdictions split when D is a private person.
V. Invasion of Privacy Torts: A. Intrusion Upon Seclusion: 1. Intent 2. Intrusion Upon Seclusion (private matter) 3. Highly Offensive to a Reasonable Person
4. Causation ± Dmgs ± compensatory + punitive. B. Appropriation: 1. Appropriation 2.Nonconsensual use of a person¶s likeness, name, identity 3. For defs benefit
C. Public Disclosure of Private Facts: 1. Public Disclosure 2. Of a private Fact 3. Which would be offensive and objectionable to the reasonable person 4. Which is
not of legitimate public concern (newsworthiness) D. False Light: 1. Publication 2. Place Pl. in false light 3. offensive to the reasonable person 4. Knowledge of the
falsity or reckless disregard (actual malice)
Defenses: Truth (but not to appropriation or intrusion), Consent, Privilege (where Pl. is portrayed in a false lt. as to a matter of public interest, Pl. must prove malice.
VI. Wrongful Institution of Legal Proceedings: 1. Malicious Prosecution ± institution of crim. Proceedings by D, done for an improper purpose and w.out probable
cause, that terminates favorably to Pl. and causes Pl. dmg. Damgs = reputational harm + emotional distress. Law enforcement,
My Strengths & Weaknesses
 prosecutors and judges absolutely privileged. 2. Wrongful Institution of Civil Proceedings - same as above but w civil trials. 3.
Abuse of Process ± where D intentionally misuses either the crim. Or civil process for an alt. motive that results in dmg. To the Pl.
VII. Economic Torts - 1. Intentional Misrepresentation (Fraud): 1. Intentional material misrepresentation, 2. Of past or present
fact, 3. Made with scienter, 4. On which the Pl. justifiably relies. 2. Negligent Misrepresentation: many times not actionable ± if 
 purely economic cannot recover unless there is a K or privity. 3. Interference w. K Relations: 1. That the D knows that there is a
K btwn P and 3 rd party, 2. That the D acts to have the K breached or harder to perform. 4. Interference with Prospective
Economic Advantage: 1. D knew of the prospective economic advantage, 2. Acted to interfere for improper motives. 5. Injurious
Falsehood (Trade Disparagement): Pl. must prove 1. False stmt. 2. Actual malice 3. Made to another (published) 4. Causing sp.
economic loss to the Pl.
VIII. Vicarious Liability ± employer/employee (respondeant superior  ±  w.in scope) ; independent K (no liability); joint enterprise
(if w.in scope or course of enterprise); owner of auto/driver (Family Car Doctrine or permissive use doctrine); parent/child (not
generally); bailor/bailee (no); tavernkeepers.
Joint and Several Liability  Contribution ( goes to injured party)  Indemnity (reimburses the tortfeasor)
IX. Death of V or Tortfeasor: Majority Law  Pl¶s personal injuries, P & S does not survive, punitive do not survive tortfeasor.
Survival Statutes: brought by the survivors (entirely statutory)
Wrongful Death Statute:  brought by the estate of the deceased
Loss of Consortium: only by spouses (entirely statutory)