BarBri Torts

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1. Intentional Torts 1. Battery

2. Assault
3. False Imprisonment
4. Intentional Infliction of Emotional Distress
5. Trespass to Land
6. Trespass to Chattel
7. Conversion

2. Intentional Torts Do not exist in intentional torts.

- Incapacity De- - children
fenses - intoxicated D
- mentally ill
- developmental disability

3. Int. Torts - Intent - Defendant desired (or knew with substantial certainty) to
commit the act
- Always an element of an intentional tort

4. Int. Torts - Trans- Intent can transfer to a different person, different tort, or
ferred Intent different person & different tort.
Exceptions: intent does not transfer to IIED or conversion.

5. Battery 1. Intent
2. Harmful or offensive contact
3. That contact must be with the P's person.
4. Causation

6. Battery - Harmful 1. Harmful - impairs the body in some way

or Offensive
2. Offensive - when it violates a reasonable/ordinary
sense of personal dignity (objective standard).

7. Battery - P's per- P's person includes anything P is touching, holding, or

son connected to P's body.

ex. Purse/briefcase snatching is a battery because it's

touching P's person.

8. Battery - Dam- P can recover

ages -nominal,
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-actual, and
-punitive damages (for malicious conduct)

9. Assault 1. Intent

2. An act by D placing P in reasonable apprehension

3. of an immediate harmful or offensive contact, and

4. Causation

10. Assault - Rea- 1. Apprehension - knowledge or belief, not fear.

sonable Appre- ex. David and Goliath hypo
hension 2. P's knowledge, belief, and reasonableness of D's ap-
parent ability
ex. unloaded gun hypo

11. Assault - Imme- P must be apprehensive about becoming the victim of an

diacy immediate battery, not one in the future.

12. Assault - Words - Words alone lack immediacy for assault.

alone - There must be physical conduct to create immediate
apprehension of pending battery.
- Words CAN negate immediacy
ex.1 conditional threats
ex.2 future threats

13. Assault - Dam- P can recover

ages 1. Nominal
2. Actual, and/or
3. Punitive damages for malicious conduct.

14. Trespass to Land 1. D intends to be where D is.

2. D commits an act of physical invasion
3. That act must interfere with P's exclusive possession of
land.

15. Trespass to Land 1. D enters property (knowingly or unknowingly)

- Physical Inva- 2. Throwing, propelling, or projecting a tangible object
sion onto P's land.
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16. Trespass to Land 1. Cause of action belongs to land possessor (not neces-
- Interfere with sarily the owner).
Exclusive Pos- 2. Air above or soil below property is still an interference
session of Land with possession out to a reasonable distance.

17. Trespass to 1. Intent

Chattels & Con- 2. D's act that interferes with personal property resulting
version in
a. physical harm to chattel, or
b. deprivation of possession
3. Causation; and
4. Damages
** Mistake as to ownership is not a defense.

18. Trespass to 1. Modest harm or deprivation is trespass.

Chattels vs. Con- 2. Big harm or long term deprivation is conversion.
version

19. Conversion P can recover full fair market value of item in question at
Remedies the time of conversion.
- operates as a forced sale.
- you break it, you buy it.

20. Defenses to In- 1. Consent

tentional Tort2 2. Protected Privileges
3. Necessity

21. Intentional Torts -Consent is a defense to all 7 intentional torts.

- Consent -P must have legal capacity to give consent (e.g. drunk
person cannot consent to battery)
-Children can consent to age appropriate invasions of
their interests.

22. Intentional Torts -Words spoken or written by P giving D permission to

- Express Con- behave in a particular way.
sent -It is limited in scope.
Except - not valid if obtained through fraud or duress.

23.
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Intentional Torts 1. Customary Practice
- Implied Con- 2. D's reasonable interpretation of P's objective conduct
sent Defense (aka body language)

24. Intentional Torts 1. Self Defense

- Protective Priv- 2. Defense of Others
ileges Defense 3. Defense of Property

25. Protective Privi- 1. D has a protective privilege only if it is in progress or

leges Req's imminent. No revenge!
2. Reasonable belief that the threat is genuine (i.e. rea-
sonable mistake will not deprive D of defense).
3. D is allowed to use the force only necessary to respond
to the threat.
-No excessive force & no duty to retreat.
- No deadly force to protect property.

26. Deadly Force Retreat is required in NY before using deadly force un-
Self Defense NY less:
1. Cannot retreat safely
2. in own dwelling
3. police officer
4. a person assisting a police officer

27. Intention Tort De- - Public & Private Necessity

fenses - Necessi- -Applies only to the 3 intentional property torts (trespass
ty to land, chattels, and conversion).

28. Intentional Tort D commits a property tort in an emergency to protect the

Defenses - Pub- community as a whole or a significant group of people.
lic Necessity

29. Intentional Tort D commits property tort in an emergency to protect his

Defenses - Pri- own interests.
vate Necessity 1. D remains liable for compensatory damages.
2. D is not liable for nominal or punitive damages.
3. As long as the emergency continues, D has a right to
continue trespass in a position of safety.

30. Intrusion
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Invasion of P's seclusion in a way that would be highly
offensive to an average person.
e.g. spying tradecraft
Exam Caution - P must have a reasonable expectation of
privacy.

31. Economic Torts 1. Fraud

2. Malicious Prosecution
3. Prima Facie Tort
4. Inducing Breach of Contract
5. Trade Secret Theft

32. Fraud 1. D makes a misrepresentation of fact

2. D made false statement intentionally or recklessly
3. D must intend to induce reliance by P
4. P must justifiably rely
5. Economic Damages

33. Prima Facie Tort Intentionally inflicting economic harm without justifica-
tion.*
1. Intent to do harm
2. Special damages
e.g. anticompetitive behavior
*NYS only

34. Inducing Breach 1. Existence of a valid K between P and X

of Contract 2. D's knowledge of that K
3. D's persuasion of X to breach the K.

35. Negligence 1. Duty

2. Breach
3. Causation
4. Damages

36. Duty D owes a duty of reasonable care only to foreseeable

victims
- zone of danger (zone size is dependent on activity)

37. Duty - Excep- 1. D owes a duty to Rescuers - danger invites rescue

tions 2. Fetuses*
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a. D negligently causes impact to pregnant woman. New-
born baby will have cause of action for injuries, but not if
stillborn in baby's name.
b. Doctor misdiagnoses birth defect. Once baby is born
parents can recover for additional costs of care, but not
ED.
c. Doctor Stop messes up vasectomy. No recovery.

*NYS only

38. Duty - Lev- Duty of care owed is the care that a reasonably prudent
el/Amount person acting in similar circumstances.
- Purely objective test
- Mental disability/illness held to same standard.

39. Duty - Superior Duty is raised to that of a reasonably prudent person with
Skill/Knowledge that particular superior skill or knowledge.

40. Duty - D's Phys- Reasonably prudent person is presumed to have the
ical Characteris- physical characteristics of D if relevant.
tics

41. Duty - Special 1. Children

Duty Standards 2. Professionals
3. Premises Liability

42. Duty - Children - Under 5 y/o have no duty - immune from negligence.
- 5 -> 18 y/o owe duty of care of a child of similar age,
experience, and intelligence acting under similar circum-
stances.
Exception: If child engages in adult activity, held to usual
duty standard.

43. Duty - Profes- Licensed service providers with special skill and training.
sionals - required to exercise the skill and knowledge normally
possessed by other members of that profession in good
standing in similar communities.
Exception: Medical specialists are held to a national stan-
dard.

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44. Duty - Premises 4 Types of Entrants
Liability 1. Undiscovered Trespasser
2. Discovered/anticipated Trespasser
3. Licensees
4. Invitees

45. Premises Duty No duty

- Undiscovered
Trespasser

46. Premises Duty Possessor must protect against:

- Discovered/An- - artificial
ticipated Tres- - highly dangerous
passer - concealed
- known to possessor

47. Premises Duty - Those that enter property w/ permission but do not confer
Licensees an economic benefit to possessor (e.g. social guests)
Possessor must protect against dangers that are
- known to possessor
- concealed

48. Premises Duty - Those that enter with permission and either confer an
Invitees economic benefit to possessor or property is generally
open to the public (e.g. customer in a store).
- concealed
- possessor knew or could have discovered through rea-
sonable inspection

49. Premises Liabili- Duty of reasonable care under the circumstances - spe-
ty - New York cific to type of entrant.
P's status is relevant to foreseeability.

50. Premises Duty - Not allowed to recover if injured due to an inherent risk of
Fire Fighters & the job.*
Police
*Doesn't apply to NYS except for employers & coworkers.

51. A child trespasser is entitled to ordinary care with respect

to artificial conditions.
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Premises Duty - consider likelihood of children trespassing (proximity to
- Children Tres- children, attractive nuisance, etc)
passers

52. Negligence Per Satisfies Duty & Breach if statute:

Se 1. P = class of persons
2. Conduct = Class of risks
*NYS requires state statute - violation of local ordinance
is only evidence of negligence

53. Negligence Per 1. Compliance with statute would be more dangerous

Se - Exceptions than violating it.
2. Compliance was impossible

54. Duty - Affirma- In general, there is no duty to undertake an activity.

tive Duties

55. Duty - Duty to No duty to rescue a stranger in peril.

Rescue Exceptions:
- Pre-existing relationship (hotel/hotel guest, common
carrier, employer/employee)
- D put P in peril

56. Duty - Gratuitous A voluntary rescuer who acts carelessly in the rescue is
Rescuer liable.

57. Duty - -In NYS, a gratuitous rescuer is NOT liable for negligence;
Good Samaritan only gross negligence or recklessness.
Statutes - In NYS, corporations are not liable for employee's mis-
use of AED's.

58. Causation 1. Factual Causation

2. Legal/Proximate Causation

59. Causation - Fac- But for the breach, P would not be injured.
tual
*Breaches, NOT D's, are A factual cause

60. Factual Causa- When acts of multiple D's "merge" together factually, the
tion - Multiple D's factual causation test is "substantial factor" NOT "but for."
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Substantial Factor: If the breach COULD have caused the

harm by itself.

61. Factual Causa- IF multiple parties breach but not all D's caused the
tion - Unascer- injuries, and it's not determinable THEN burden of proof
tainable Causes shifts to D's.

Summers v. Tyce

62. Proximate Cause -P must prove that liability would be "fair."

-D's are liable for the foreseeable consequences of their
negligent actions.

63. Foreseeability: Foreseeability in "duty" is related to P's class of persons

Duty vs. (usually physical location), but proximate cause foresee-
Proximate Cause ability is related to the consequences or injuries.

64. Proximate Cause -Direct Cause

- Case types -Indirect Cause

65. Proximate Cause Consequences are foreseeable and liability is fair when:
- Indirect Cases 1. Intervening medical malpractice
2. Intervening negligent rescuers
3. Intervening protection or reaction forces
4. Subsequent disease or accident

66. Damages - -P recovers all damages even if they are surprisingly great
Eggshell Skull in scope.
Doctrine - D takes his P as he finds him.
*Applies to all torts in American law.

67. Damages - Col- In NYS, recovery is reduced by collateral source (e.g.

lateral Recovery insurance, etc)

68. Negligence - Af- 1. Comparative negligence

firmative Defens- 2. Assumption of risk
es *NYS uses pure comparative fault
**Modified/partial comparative fault is some times tested
on the MBE (50% threshold)
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69. Strict Liability - 1. Animals

Causes of Action 2. Abnormally dangerous activities
3. Worker's Compensation
4. Products Liability

70. Strict Liability - 1. Domesticated

Animals - Pets and livestock
- D not strictly liable for domesticated animals
Exception: when D KNOWS of its vicious propensities.
2. Wild

71. Strict Liability - Animal owner is strictly liable if

Abnormally Dan- 1. It creates a foreseeable risk of serious harm even when
gerous Activities reasonable care is exercised.
2. Activity is not a matter of common usage in the com-
munity.
-e.g. explosives blasting, toxic chemicals, nuclear radia-
tion,

72. Worker's Com- - Insurance scheme where employer (through insurance

pensation company) is liable for employee's injuries regardless of
fault.
- Employee cannot sue in court under tort law.

73. Worker's Com- - Also covers claims against coworkers

pensation - *Unless outside scope of employment or intentional.
Coworkers

74. Worker's Com- Not considered employees and not covered by worker's
pensation - In- compensation.
dependent Con-
tractors

75. Worker's - Does not bar litigation against other companies who
Compensation - aren't the P's employer.
Non-employer e.g. other subcontractors at construction site; equipment
Companies manufacturer, etc.

76.
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Worker's Com- 1. Intoxicated P
pensation - Ex- 2. P intentionally injures self
clusions 3. Injured during voluntary off-duty athletic contests.
*Illegal activity will not bar a worker's compensation claim

77. Worker's Com- 1. All medical expenses

pensation - Dam- 2. 2/3's wages
ages 3. Death or dismemberment - statutorily specified
amounts.

78. Products Liabili- 1. Strict products liability

ty - Causes of Ac- 2. Negligence
tion 3. Intentional tort
4. Implied warranty
5. Express warranty/misrepresentation

79. Strict Products Strict Liability available if

Liability 1. D is a merchant
2. P must show the product is defective
3. P must prove the defect existed when D relinquished
control (presumed when product travelled in ordinary dis-
tribution channels).
4. P makes a foreseeable use of product (not necessarily
the D's only intended use)

80. Strict Products 1. Non-compliance with a governmental regulation is con-

Liability - Gov- clusively a defective design.
ernment Regula- 2. Compliance with a governmental regulation is evidence
tions of no defect but is not dispositive.

81. Strict Products Someone who ordinarily deals in goods of this type.
Liability - Mer- 1. Casual sellers are not merchants.
chant 2. Services providers who use products incidentally are
not merchant
3. Lessors/renters are merchants
4. All parties in a distribution chain are considered mer-
chants - no privity of contract is required.

82.

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Strict Products 1. Manufacturing Defect
Liability - Defec- 2. Design Defect
tive Product 3. Information Defect

83. Strict Products Product departs from the intended design in a way that
Liability - Manu- makes it more dangerous than consumers would expect.
facturing Defect

84. Strict Products P shows there is a hypothetical alternative design that is:
Liability - Design 1. safer than the sold product
Defect 2. cost effective compared to sold product
3. practical

85. Strict Products Product has an information defect if:

Liability - Infor- 1. it has residual risks that cannot be designed around,
mation Defect 2. consumers are not aware of those risks, and
3. the product lacks ADEQUATE warnings

86. Strict Products 1. Warnings in instruction manuals may not be sufficient

Liability - Ade- 2. Should be bilingual
quate Warnings 3. Should be graphical for the illiterate

87. Strict Products Warnings will not insulate D from liability if there is a
Liability - Warn- design defect.
ings & Design
Defects

88. Strict Liability - Comparative responsibility

Defenses

89. Nuisance P suffers a nuisance when his ability to use and enjoy
property to an unreasonable degree.
- nuisance can be intentional/reckless/negligent/ or no
fault.

90. Vicarious Liabili- - Always turns on relationship between passive D and

ty active tortfeasor.
1. Employer-Employee: liable so long as it was within the
scope of employment.
2. Independent Contractors: No vicarious liability, EX-
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CEPT when they hurt premises invitees.
3. Car owner-Car Driver: No vicarious liability, EXCEPT
when an agency relationship has formed.*
4. Parent-Child: No vicarious liability*
*Not the NYS law.

91. Multiple Defen- Comparative Contribution Rights

dants - out of pocket D can force co-D's to pay their share of the
damages
EXCEPTION: Indemnification

92. Multiple Defen- - Out of pocket D can get 100% reimbursement when 1)
dants - Indemni- D is vicariously liable, and 2) non-manufacturer is indem-
fication nified by manufacturer in a products case.

93. Loss of Consor- Uninjured spouse has a separate cause of action against
tium all D's for three types of damage
1. Loss of services
2. Loss of society (companionship)
3. Loss of sex

94. Intra-family Tort There is no intra-family immunity for torts of any kind.
Immunity - Parents do not owe a special duty to supervise their
children.

95. No Fault Insur- Prevents minor traffic accidents from being adjudicated
ance - Rationale by guaranteeing reimbursement from an insurance com-
pany

96. When can you 1. Policy holder

collect first par- 2. Any authorized driver of PH's car
ty no-fault bene- 3. Passenger in PH's car
fits? 4. Any pedestrian hit by PH's car
* All can recover regardless of negligence
* Not geographically limited

97. Who can't get 1. Drunk drivers

no-fault bene- 2. Racers
fits? 3. Car thieves & fleeing felons

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98. What Are the 1. All medical expenses
No-Fault Bene- 2. Lost wages: 80% of wage, capped at $2k/month for max
fits three years
3. Misc. expenses capped at $25/day.
*Nothing for pain & suffering or anything above capped
limits.

99. When are you 1. Injuries in excess of basic economic loss.

permitted to still - If (Medical expenses) + (80% of lost wages capped at
file a traditional $2k/month for 1 year) + (misc. expenses at $25/day for 1
negligence suit year) > $50k then you can sue for negligence
in NYS? 2. Suffered a serious injury
- Death
- Dismemberment
- Significant disfigurement
- Fracture*
- Loss of fetus
- Permanent loss of bodily organ or function
- Permanent consequential limitation of the use of a bodily
organ.
- Significant limitation of use of a bodily function or system
- Non-permanent injury that prevents you from performing
substantially all of the acts usual and customary for a
period of 90 days.

100. Types of Car In- 1. Liability (if you get sued)

surance 2. No fault for your own damages

101. Types of Dam- No fault is for personal injuries only - No property damage
ages (that would be covered under collision).

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