TORTS

NEGLIGENCE
A plaintiff must prove duty, breach, causation, and harm to make a claim for negligence.

DUTY
GENERAL RULE The reasonably prudent person standard applies. A few factors are considered in determining if the defendant was acting as a reasonably prudent person:
Children: Use a subjective standard for children. Look at the age, intelligence, and experience of the child. An exception exists if the child was engaged in an adult
activity. If the child was engaged in an adult activity, use the reasonably prudent person standard. Tip: examples of an “adult activity” include driving a car or
boat or shooting a gun.
Physical characteristics: take into account if the defendant is physically impaired.
Professionals: take into account a defendant’s superior knowledge.
A few other factors to consider when noting the duty owed by the defendant:
• Statute—negligence per se: If a defendant violates a statute and the plaintiff was in the class of people that the statute was trying to protect and the plaintiff received the injury the statute
was trying to prevent, duty and breach are established. Tip: the plaintiff still must prove causation and harm.
• Custom: Custom generally is evidence of duty of care. In professional malpractice cases, it is conclusive evidence.
• Duty to control third parties: Generally, there is not a duty to control the conduct of third parties. However, one has a duty to act reasonably to control a third party if one has a special
relationship with the third party (e.g., an owner and the occupiers of his land, a prison and its prisoners, or a mental institution and its patients).
Owners and occupiers of land:
• Undiscovered trespasser (a person the premises possessor does not or should not know of): No duty of care is owed. However, the premises possessor cannot act wantonly or willfully.
• Discovered trespasser (a person the premises possessor knows or should know is trespassing): The premises possessor must warn of or make safe unreasonably dangerous artificial
conditions that it knows of.
• Licensee (social guest): the premises possessor must warn of or make safe all concealed dangers that it knows of.
• Invitee (one that enters a public place or business): the premises possessor must warn of or make safe all dangers that it knows or should know of. Tip: this is the only case where a
duty to inspect is imposed on the premises possessor.

BREACH
A plaintiff must show that the defendant breached its duty of care.
Tip: If the plaintiff can show res ipsa loquitur, it means that the case should go to trial
Res ipsa loquitur: When the circumstances surrounding the injury are unclear, if a and no directed verdict should be entered for the defendant. It does not necessarily
plaintiff can show that the injury likely was the result of negligence and that it likely was mean that the plaintiff wins his case.
the defendant that was negligent, the plaintiff has made a case for breach.

CAUSATION
There are two types of causation that must be present—actual (but for) and proximate. OTHER CAUSATION ISSUES
Actual (but for) cause: there must be a factual connection between the breach and • Multiple causes: If there are two or more defendants, use the
the injury suffered. substantial factor test. If a defendant’s breach was a substantial factor
in causing the harm, the defendant is liable.
Proximate cause: the harm must be a foreseeable result of the breach. • Alternative causes: The plaintiff must show that all potential
Examples of harm that is considered foreseeable: (1) medical malpractice that occurs after an defendants are joined in the lawsuit and all defendants are negligent.
accident, (2) harm that occurs during rescue efforts to protect life and property endangered The burden then will shift to each defendant to show its breach of duty
by defendant’s negligence, and (3) a disease or subsequent accident that occurs after an accident. was not the actual cause of the harm.

HARM
A plaintiff must suffer actual harm to successfully sue in a negligence action. A plaintiff is not permitted to recover in negligence or strict liability if he has suffered a
Tip: a plaintiff cannot recover punitive damages or nominal damages in a negligence pure economic loss (i.e., no injury to himself). Tip: in this case, the plaintiff may have a
action. remedy in contract (but not tort).

Comparative negligence: a judge or jury compares the plaintiff’s fault with the defendant’s fault and assigns percentages to each.
Pure comparative negligence: The plaintiff can recover no matter how negligent he is. His damages simply are reduced by his
DEFENSES percentage of fault. Tip: this is the default on the MBE unless otherwise stated.
Partial (modified) comparative negligence: if the plaintiff was more at fault than the defendant (or in some states, if the
plaintiff and defendant were equally at fault), the plaintiff cannot recover.
Contributory negligence: The plaintiff cannot recover if he was even a little bit negligent unless the defendant had the last clear chance to
avoid the injury. (Do not apply this doctrine on the MBE unless you are told to!)
Assumption of risk: If the plaintiff knew of the risk and voluntarily assumed it, he generally cannot recover damages. (However, some courts
will analyze assumption of risk using a comparative fault analysis.)

Joint and several liability: In a joint and several liability jurisdiction, the plaintiff may recover all of his damages from any single defendant
MULTIPLE (and the defendant may seek contribution from a codefendant). In a several liability jurisdiction, each defendant is liable only for his percentage
of fault. Tip: apply joint and several liability on the MBE unless told otherwise.
DEFENDANTS Employees and other agents: Employers or principals are vicariously liable for the torts of their employees or agents that are committed in the
scope of employment. (Note: intentional torts usually are outside the scope of employment unless they were foreseeable or they were
committed for the purpose of serving the employer.) If an employer/principal is found liable under this theory, it may seek indemnity (i.e., full
payback) from its employee.
Independent contractors: A principal is generally not liable for the torts of his independent contractors. However, a principal is liable if the
duty is nondelegable or the activity is inherently dangerous. The principal also may be liable for his own negligence in hiring, firing, or
supervising the contractor. Tip: a duty generally is nondelegable if it involves safety.
Parental relationship: Generally, parents are not vicariously liable for the acts of their children. However, a parent may be directly liable for his
own negligence (e.g., failure to supervise).

© JD Advising, Inc. www.jdadvising.com

INTENTIONAL TORTS
Assault: Defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension) and
an imminent apprehension directly or indirectly results.
Tip: Apprehension does not mean fear. Apprehension is knowledge or anticipation of the
DEFENSES
impending contact.
• Consent: this can be express or implied.
Battery: defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension) and
a harmful or offensive contact directly or indirectly results. • Self-defense: the defendant reasonably believes force is necessary to
protect against the unlawful use of force.
False imprisonment: defendant acts with the intent to confine or restrain the plaintiff to a bounded area,
actual confinement occurs, and the plaintiff either knows of the confinement or is hurt by it. • Public necessity: defendant acts to protect the public from a greater harm
that would have occurred had he not acted.
Intentional infliction of emotional distress (IIED): Defendant intentionally or recklessly engages in
extreme or outrageous conduct that causes the plaintiff to suffer severe emotional distress. Tip: The • Private necessity: Defendant acts to protect an interest of his own. He is not
plaintiff does not need to show physical symptoms to prevail. However, the plaintiff must show liable for a tort, but he still must pay for actual damage caused.
she suffered “severe emotional distress.” A note on transferred intent: intent can transfer for torts involving assault,
Trespass to land: defendant physically invades the land of another and intends to be where he is. battery, false imprisonment, trespass to land, and trespass to chattels.
Trespass to chattels: Defendant intentionally interferes with another’s personal property and harm results.
The damages are the cost to repair the property.
Conversion: Defendant intentionally interferes with another’s personal property and a serious and
substantial harm results. The damages are the fair market value of the property.

OTHER TORTS NUISANCE

Private nuisance: the defendant uses his property in a way that causes a substantial unreasonable interference with the plaintiff’s use
or enjoyment of his land.
Tip: Do not take into account the plaintiff’s peculiar use of his land. Ask if the defendant’s use of his land would substantial-
ly interfere with an average member of the community’s use and enjoyment of his property.
Public nuisance: Defendant unreasonably interferes with the health, safety, or morals of a community. In order to successfully sue, the
plaintiff must suffer unique damages.
MISREPRESENTATION INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS
(1) There is a material misrepresentation by the defendant, (1) There is a valid business relationship or expectancy that existed between the parties that
(2) the defendant knew his statement was false or said it with the defendant knew of;
reckless indifference to the truth, (2) the defendant intentionally coerced one of the parties to terminate the relationship, breach a contract,
(3) he had the intent to induce the misrepresentation, and or withhold a business expectancy;
(4) the plaintiff relied on it and suffered pecuniary damage. (3) the defendant was not authorized to interfere; and
(4) the interference resulted in damages.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)

The general elements of NIED: (1) the defendant is negligent,
(2) the plaintiff suffers physical symptoms from its emotional distress, and
(3) the plaintiff is either in the zone of danger or the plaintiff witnesses a negligent injury to a person closely related to the plaintiff.
Note: There are special cases where physical symptoms are not necessary to prove. These include cases where a corpse is mishandled and cases involving erroneous reports of a relative’s death to a plaintiff.

STRICT LIABILITY DEFAMATION AND INVASION OF PRIVACY

DEFAMATION
In a strict liability case, the plaintiff must prove duty (which is, in this case, absolute), General defamation requires four elements:
causation, and harm. Tip: in a strict liability case, whether the defendant was acting 1. a defamatory statement about the plaintiff, 2. an unprivileged publication of the statement,
reasonably is immaterial. 3. fault (at least negligence), and 4. damages.
1. Abnormally dangerous activities: An abnormally dangerous activity is one that creates In libel cases (cases where the defamatory statement is written or recorded), damages are presumed.
a foreseeable risk of serious harm even when reasonable care is exercised, and the activity is In slander cases, damages are presumed if the slander is in one of the four slander per se (CLUB) categories:
not a matter of common usage in the community. Tip: examples include blasting, mining, (1) committing a crime of moral turpitude, (2) suffering from a loathsome disease,
explosives, etc. (3) unchastity if the plaintiff is a woman, or (4) something that reflects badly on the plaintiff’s business or profession.
Public figure cases: If the plaintiff is a public figure, he also must prove that the statement is false and that the
defendant acted with malice. Tip: Memorize the definition of malice for public figure cases. Malice is present
2. Wild animals: A defendant is strictly liable for foreseeable harms caused by wild animals. when the defendant knows the statement is false or acts with reckless disregard as to whether it is true or
Examples of wild animals include: skunks, bears, and monkeys. false.
Tip: strict liability is not available to a trespasser (the trespasser can sue under a
theory of negligence but not strict liability). Defenses
Tip: Negligence must be shown if the harm is caused by a domestic animal (i.e., a pet 1. Consent
2. Truth
or farm animal). Examples include dogs, cats, sheep, honey bees, rabbits, horses, and
3. Privileges: Privileges can be absolute (made during legislative, executive, or judicial proceedings) or
cows. qualified (when candor is encouraged). Tip: common examples of when a defendant may
have a qualified privilege is when he is speaking as a past employer of the plaintiff for a
job reference or if he is speaking to a police officer investigating a crime.
3. Products liability: The defendant must be a merchant. The product must be defective at Note: injunctions generally are not granted in defamation cases as they are viewed as prior restraints
the time it left the defendant’s hands. that interfere with First Amendment rights.
• Types of defects:
Manufacturing defect: the product departs from its intended design and it is more INVASION OF PRIVACY (FAID) AND DEFENSES
dangerous than expected. False light: defendant widely spreads facts about the plaintiff, which places the plaintiff in a false light that would
Design defect: The product comes out exactly as the manufacturer intended. However, be offensive to a reasonable person.
there is an alternative design that is safer, practical, and cost-effective. Appropriation: defendant uses the plaintiff’s name or likeness in an unauthorized way to advertise a product.
Lack of warning/instructions: No warning: If there’s a hidden risk, there should be a Intrusion: defendant intentionally pries or intrudes into a private place in a way that would be offensive to a
warning. If risk is obvious, no warning necessary. Yes warning: examine the size of the reasonable person.
warning, color, if there are pictures, etc. to see if it’s adequate.
Disclosure: defendant widely disseminates or publishes private information about the plaintiff that would be highly
• Liability: Everyone in the chain of distribution is liable under a strict products liability offensive to a reasonable person.
theory. Tip: pay careful attention to the call of the question to see if you are
supposed to apply a strict liability standard or another standard (e.g., negligence).
Consent is a defense to all four privacy torts. Defamation privileges apply to false light and disclosure.
• Defenses: assumption of risk, comparative negligence, or unforeseeable misuse of a
product.