TORTS 1

I.

ESSAY STRUCTURE
A. (1) State the tort, (2) prima facie case, (3) apply law to facts, (4) conclusion, (5) defenses, (6)
general considerations
II. INTENTIONAL TORTS: Prima Facie Case Act, Intent, Causation
A. Act by D: The act required is a volitional movement by defendant
i. Capacity is not an issue for intentional torts. Children, mentally insane are liable.
B. Intent: May be (i) specific (the goal in acting is to bring about specific consequences), (ii)
general (the actor knows with substantial certainty that these consequences will result), or (iii)
transferred,
i. Transferred Intent: applies when D intends to commit a tort against one person but
instead:
1. commits a different tort against that person
2. commits the same tort as intended but against a different person
3. commits a different tort against a different person
4. Transferred intent is used only for assault, battery, false imprisonment, trespass
to land or trespass to chattels.
C. Causation: results must have been legally caused by Ds act or something set in motion by D.
Causation is satisfied if Ds conduct was a substantial factor in bringing about the injury.
D. Battery: an act by D that intentionally causes a harmful or offensive contact to the Ps person.
i. Offensive = not permitted by person of ordinary sensitivity
ii. Offensive = Violates a sense of reasonable dignity, unwanted sexual touching is
offensive.
iii. Plaintiffs person includes anything the plaintiff is holding or touching purse, cane,
plate.
iv. Can also have a delayed reaction such as poisoning Ps lunch causing illness a few
hours later.
E. Assault: an act by D that intentionally causes a reasonable apprehension in the P of
immediate harmful or offensive contact with Ps person.
i. Apprehension should not be confused with fear or intimidation. Apprehension means
having the knowledge not having fear or being intimidated.
ii. If D has the apparent ability to commit a battery this is sufficient to cause a reasonable
apprehension.
iii. Words alone insufficient, but can negate reasonable apprehension.
F. False imprisonment: an act or omission by D that intentionally confines or restrains P to a
bounded area.
i. P must know of the confinement or be harmed by it.
ii. Sufficient acts of restraint: physical barriers, physical force, threats of force, failure to
release, invalid use of legal authority
iii. Bounded area: freedom of movement must be limited in all directions; no reasonable
means of escape known to P.
iv. If means of escape is unreasonable rat infested sewage pipe - P is bounded.
G. Intentional infliction of emotional distress: Extreme or outrageous conduct by D that
intentionally causes severe emotional distress.
i. Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society
ii. Requires proof of actual damages (severe emotional distress);
iii. Recklessness satisfies the intent requirement.
iv. Insults alone are not outrageous.
v. Special classes of sensitivity include children, elderly people and pregnant women.
vi. Common carriers and Innkeepers may be liable even for mere gross insults.
vii. If someone is exercising first amendment rights the speech is protected and not
outrageous.
viii. TP bystander may recover if she was present during the act, is a close relative of the P,
and D knew the 2 preceding facts.
H. Trespass to land: An intentional act that brings about a physical invasion of Ps land
i. D needs intent only to enter that land; he need not know the land belonged to another.

TORTS 2

ii. Physical invasion must be by person or object, sight (lights), sound (loud music), and
smell (boiling cabbage) does not constitute a physical invasion.
iii. Physical invasion of air and subsurface is a trespass provided its at a reasonable
distance from the surface. Airliner flying overhead is beyond a reasonable distance.
iv. Unintentional Entry onto Land: A person is not liable for trespass for negligent or
reckless entries unless he causes damage to the land.
I. Trespass to chattel: an intentional act by D that brings about an interference with the Ps
possessory interest in a chattel.
i. Remedy: actual damages from harm to chattel or loss of use (if dispossession, rental
value)
J. Conversion: an intentional act by D that brings about an interference with the Ps possessory
interest in a chattel so severe as to warrant a forced sale.
i. Remedies: Damages (Fair Market Value at time of conversion) or replevin
K. DEFENSES
i. Consent: Was there a valid consent? If yes, did D stay w/in the scope?
1. Consent: express, apparent from custom and usage or Ps conduct, or implied by
law.
2. D must have capacity to be capable of consent.
ii. Self-defense: If D reasonably believes that she is about to be attacked, D may use
reasonable force necessary to protect himself from imminent bodily harm. (Reasonable
mistake allowed)
1. Deadly force may be used if a life is at stake.
iii. Defense of others: D may use reasonable force to defend another when there is a
reasonable belief that a tort is being or about to be committed on a 3rd party
1. Force used: reasonable or whatever force D could have used in self defense
2. Reasonable mistake as to the existence of the danger is allowed
3. Deadly force may be used only if a life is at stake.
iv. Defense of property: D may use reasonable force when there is a reasonable belief
that a tort is being or is about to be committed to his real or personal property.
1. Request to desist must precede use of force unless it would be futile or
dangerous.
2. Force used: reasonable force, one may not use force causing death or serious
bodily harm such as spring/mechanical guns, vicious dogs, electric fences.
3. Deadly force can only be used when a person, not just property, is threatened.
v. Recapture of chattels an individual can enter anothers land to recapture chattel as
long as: (i) demand is made (ii) entry is made in a reasonable manner and (iii)
reasonable force is used. DEF
vi. Reentry onto Land: There is no privilege to go onto land wrongfully withheld to force a
tenant out.
1. At common law one could use force to re-enter land but modernly one must
resort to the legal procedures to recover possession of real property.
vii. Public necessity: D may interfere with the real or personal property of another where it
is reasonably necessary to prevent great harm to the public at large.
1. Public necessity is an absolute defense when property is destroyed in order to
protect the public at large from a catastrophe. No damages.
viii. Private necessity: D may interfere with the real or personal property of another when
reasonably necessary to prevent great harm to the D or other private citizens.
1. D will be liable for actual compensatory damages to others property (unless the
act was to benefit the property owner).
2. D will have no liability for nominal damages or punitive damages
3. As long as emergency continues the P property owner cannot throw the D off his
land.
ix. Privilege of Arrest:

TORTS 3

1.

Felony Arrest by Police Officer the officer must reasonably believe that a
felony has been committed and that the person he arrests has committed it.
2. Felony Arrest by Private Citizen The felony must have been committed and the
citizen must reasonably believe that the person he arrests has committed it.
a. Force allowed: (for both) that degree of force reasonably necessary to
make the arrest; deadly force only when the suspect poses a threat of
serious harm.
3. Misdemeanor Arrests The misdemeanor must be a breach of peace and
committed in the arresting partys presence.
a. Force allowed: That degree of force reasonably necessary to make the
arrest, but never deadly force.
x. Shopkeepers privilege a shopkeeper has a privilege to reasonably detain an individual
who he reasonably believes to be in possession of shoplifted goods.
1. Detainment must be reasonable: (B.I.T.) Reasonable belief, reasonable
investigation, and for a reasonable amount of time.
xi. Discipline: A parent or teacher may use reasonable force in disciplining children.
III. DEFAMATION
A. Defamation: is a defamatory statement of or concerning P, published to a Third Party that
damages the (living) Ps reputation.
i. Defamatory statement is an allegation of fact that tends to adversely affect Ps
reputation.
1. Statement casts a negative light on defendant.
2. Name calling is not defamatory.
3. Generally you need a statement of fact. John is abusing children where he
works.
4. A statement cast in the form of an opinion can be considered defamatory if it
implies the possession of a factual basis. (veiled representation of fact). Last
year I hired Sally as my store manager and in my opinion youd be crazy to let
sally near your cash register. Statement can be construed as sally stealing
money.
ii. Of or concerning the P: The P must establish that a reasonable reader, listener, or
viewer would understand that the defamatory statement referred to the P.
1. Colloquium If the statement does not refer to the P on its face, extrinsic
evidence may be offered to establish that the statement refers to the P.
2. Small group if a defamatory statement references all members of a small group
then all have been defamed.
3. Large Group if a defamatory statement references a person in a large group
then that statement is not actionable.
4. If the statement refers to some members of a small group P can recover if a
reasonable person would view the statement as referring to the P
iii. Publication is an intentional or negligent communication to a third party of that
defamatory statement. 3rd party must reasonably understand the statement.
iv. Damages: special (economic) damages must be proven, but are presumed where the
statement is libel or slander per se.
1. Libel is written or printed publication of defamatory language. Damages are
presumed.
2. Slander is spoken defamation. Damages must be proven.
a. Damages must be economic in nature firing of a job, loss of business,
customers are deserting business, loss of contract. Cannot rely on social
harm damages such as being shunned.
3. Slander per se is spoken defamation concerning committing a crime of moral
turpitude, loathsome disease (leprosy and venereal disease), unchastity of a
woman, or adversely reflect on ones conduct in a business or profession.
Damages are presumed.

TORTS 4

v. Constitutional Defamation Public figures/public concern must also prove falsity of

the statement and malice (fault) (knowledge of falsity/reckless disregard to truth).
1. Truth of the statement is presumed
2. If malice is shown damages are presumed for libel or slander per se
vi. Constitutional Defamation Private figures/public concern must prove falsity of the
statement and negligence regarding the falsity
1. Where the defendant is negligent only actual injury damages are recoverable.
2. Where malice is found, damages may be presumed and punitive damages
allowed.
B. Defenses CAT
i. Affirmative Defenses
1. Consent
2. Truth (if matter is not one of public concern) D can offer evidence that statement
was truthful.
ii. Affirmative Privileges
1. Absolute Privilege (can never be lost): Absolute privileges arise based on
identity or status of defendant, spouses communicating with each other. If harry
says something defamatory about his boss to his wife there cannot be a claim
due to spousal privilege. Officers of the three branches of government
engaged in official duties lawyers and witnesses. Members of the media for
reports of public proceedings.
2. Qualified privilege (can be lost through abuse): reports of official proceedings,
fair comment opinion, socially useful purposes arises based on the reason for
the statement why the statement was said. This arises if there is a public
interest in encouraging candor. i.e. Letters of recommendation or references,
statements made to police or investigating officers,
a. D must speak in good faith. (D must have a reasonable belief in the truth
of the statement.)
b. D must confine his statements to relevant matter.
c. Qualified Privilege can be lost where:
i. The D knows the statement is false
ii. The D is reckless as to the truth
iii. The statement is published outside the context where the
qualified privilege should apply.
3. Mitigating Factors no malice, retraction, anger of the speaker provoked by
plaintiff etc may be considered by the jury on the damages issue; however, they
are not defenses to liability.
IV. INVASION OF PRIVACY
A. Appropriation of Ps Picture or Name: an unauthorized use of Ps name or picture for Ds
commercial advantage.
i. Liability is generally limited to advertisements or promotions of products or services.
Mere economic benefit to defendant by itself is not sufficient.
B. Intrusion: prying or intruding into Ps privacy or seclusion that is objectionable to a reasonable
person.
i. The thing into which there is an intrusion must be private.
ii. P must be in a place where there is a reasonable expectation of privacy. i.e. in your
home, a hotel room. There is no expectation of privacy for a person on a cell phone in a
public place.
iii. There is no requirement that D enters on to Ps property to commit an intrusion. i.e.
Defendant can use a telescope to commit an intrusion.
C. False light: exists where D attributes to P false or misleading facts highly offensive to a
reasonable person. (malice required if public matter)
i. For liability to attach there must be publicity.

TORTS 5

D.

E.
F.
G.

ii. The falsehood can be but need not be a defamatory statement.

iii. There is no good faith defense for False Light, P speaks at his peril.
Public Disclosure: public disclosure of private information about P that is highly offensive to a
reasonable person.
i. Liability may attach even though the actual statement is true.
ii. Newsworthiness exception: publishing the presidents medical exam results would be
allowed as public interest
iii. Facts in question must be truly private or intimate in order to have a cause of action.
iv. Dual life fact pattern might not be actionable. i.e. a gay person not out at work but out in
all other aspects of his/her life could not bring a cause of action if a coworker sees the
person at a gay pride demonstration with a sign stating were gay and proud of it and
outs the person at work.
Note: Always discuss Intentional infliction of emotional distress when there is a privacy
tort.
Causation: The invasion of Ps interest in privacy must have been proximately caused by Ds
conduct.
Defenses:
i. Consent is a defense to all four privacy torts
ii. Absolute privilege and qualified privilege from the law of defamation are available
defenses for false light and disclosure claims.

V. MISCELLANEOUS TORTS
A. Intentional misrepresentation (Fraud, Deceit): misrepresentation of a material fact with
knowledge of falsity, intent to induce P to act or refrain from acting in reliance of the
misrepresentation, causing actual reliance by P, and P suffered actual pecuniary loss.
i. There is no defense to intentional misrepresentation.
B. Negligent misrepresentation: misrepresentation by D in a business or professional capacity,
breach of duty towards a particular P causing justifiable reliance and damages.
i. Generally reliance is justifiable only as to a statement of fact and not opinion.
ii. This action is confined to misrepresentations made in a commercial setting and liability
will attach only if reliance by the particular plaintiff could be contemplated.
C. Malicious prosecution: instituting a criminal proceeding against P without probable cause for
an improper purpose which terminated in Ps favor and damages.
D. Wrongful civil proceedings: Most jurisdictions have extended the malicious prosecution
actions to cover civil cases.
E. Abuse of process: wrongful use of process for an ulterior purpose and definite act or threat
against P in order to accomplish an ulterior purpose.
F. Interference w/business relations: (i) existence of a valid contractual relationship between P
and a 3rd party or valid business expectancy of P (ii) defendant had knowledge of the
relationship or expectancy (iii) intentional interference by D inducing a breach or termination of
the relationship or expectancy and (iv) damages
i. Ds conduct may be privileged where it is a proper attempt to obtain business for itself or
protect its interest.
VI. NEGLIGENCE In order to prove Negligence a P must show that the D owed a duty of care to P, that
D breached his duty of care, and that the Ds breach was the actual and proximate cause of Ps
damages.
A. Duty is owed to Foreseeable Plaintiff: a person owes the duty of care of a reasonable
prudent person under similar circumstances to foreseeable plaintiffs
i. (Cardozo majority rule zone of danger/Andrews minority rule everyone)
B. Basic Standard of Care A person owes the duty of care of a reasonable prudent person
under similar circumstances.
C. Particular standard of conduct: professionals, children, common carriers and innkeepers.
i. Professionals: the professional must exercise the skill and knowledge normally
possessed by members of that profession in good standing in similar communities.

TORTS 6

1.
2.
3.

Medical Specialists are held to a national duty of care

Primary care physicians are held to a regional standard of care
Doctors have a duty to disclose the risks of treatment to enable a patient to
give an informed consent. A doctor breaches that duty if an undisclosed risk was
serious enough that a reasonable person in the patients position would have
withheld consent on learning of the risk.
ii. Children age 5 and above owe the duty of care of children of similar age, experience,
education and intelligence acting under similar circumstances. This is a subjective
standard of care which differs from child to child. This standard ends up being flexible
and lenient.
1. If a child is engaged in an adult activity then the default standard of care
(Reasonable Person Test) is used. i.e. a child operating a motorized vehicle is
held to the duty of a reasonable person operating a motorized vehicle under
similar circumstances.
iii. Common carriers and innkeepers held to a high standard of care, they are liable for
slight negligence. P must be a guest or passenger.
D. Land owner/occupiers:
i. Plaintiffs not on the land (but adjacent to land) There is no duty to protect one that is
off the premises from natural conditions on the premises; however, there is a duty for
unreasonable dangerous artificial conditions or structures abutting adjacent land.
ii. Trespassers:
1. No duty owed to undiscovered/unknown trespassers.
2. As to discovered/known or anticipated trespassers, landowner has duty to warn
or make safe concealed, unsafe, known artificial conditions involving risk of death
or serious bodily harm and use reasonable care in the exercise of active
operations on the property.
iii. Attractive nuisance doctrine: landowner must exercise ordinary care to avoid
reasonably foreseeable risks of harm to children caused by artificial conditions. P must
show
1. a dangerous condition on the land that the owner knows or should have known,
2. owner knows or should know children frequent the vicinity of the condition,
3. condition is likely to cause injury because of a childs inability to appreciate the
risk, and
4. the expense of remedying the situation is slight compared with magnitude of risk.
iv. Licensees: landowner has a duty to warn of dangerous conditions known to the owner
that create an unreasonable risk of harm to the licensee and that licensee is unlikely to
discover, and exercise of reasonable care in the conduct of active operations on the
property.
1. No duty to inspect or repair.
2. Licensee is one who enters with permission for her own purpose/business, e.g.,
social guest, girl scout selling cookies
v. Invitees: Landowner has a duty to warn of dangerous conditions known to the owner
that create an unreasonable risk of harm to the invitee and that the invitee is unlikely to
discover, make reasonable inspections to discover non-obvious dangerous conditions
and make them safe and exercise of reasonable care in the conduct of active
operations on the property.
1. Invitees enter for a purpose connected with landowners business or for which
the land is held open to the public. i.e customer of a business, churchgoer,
E. Statutory standard of care: may replace CL duty of care if statute provides for a criminal
penalty, clearly defines the standard of conduct, P is within the protected class, and statute was
designed to prevent the type of harm suffered by P.
i. Violation may be excused if compliance would cause more danger than violation, or
where compliance is beyond Ds control.
ii. Unexcused violation is negligence per se (conclusive presumption of duty and breach of
duty).
F. Affirmative duty to act: there is no legal duty to act unless:

TORTS 7

i. Assumption of duty by acting

ii. Defendant caused the peril
iii. Special relationship between the person in peril and rescuer parties.
Employer/employee, parent/child, friends hanging out together
iv. Common law carriers and innkeepers
v. Duty to control third persons if one has actual ability and authority to control a persons
actions, and knows or should known the person is likely to commit acts that would
require exercise of control.
vi. Note: there is no duty to put ones life at risk in order to rescue a person in peril
G. Superior knowledge: a person with superior knowledge must act as a reasonably prudent
person with superior knowledge.
H. Negligent infliction of emotional distress: a person is liable where the D acts negligently, the
P is in the zone of physical danger and suffers physical manifestation of distress; under the
bystander distress recovery theory a witness may recover if he witnesses a negligent injury
to a close family member (loved one), suffers emotional distress with a physical manifestation,
and is in the zone of danger.
I.

Breach: occurs when Ds conduct falls short of the level required by the applicable standard of
care owed to P.
i. Custom or Usage may be used to establish standard of care, but does not control
whether certain conduct amounted to negligence.
ii. Violation of statute: causation and damages must still be established by P.
iii. Res ipsa loquitur: the very occurrence of an event tends to establish a breach of duty.
P must show the accident causing the injury is a type that would not normally occur
absent negligence, by evidence that the instrumentality causing the injury was in Ds
exclusive control.
1. Note: It is not necessary to show defendant has actual possession of the
instrumentality
2. Effect of Res ipsa loquitur: Where res ipsa is established, P had made a prima
facie case and no directed verdict may be given for defendant.

J. Causation
i. Actual causation: but for the (breach) act or omission Ps injury would not have
occurred.
1. Joint causes: Substantial factor test: Where several causes bring about injury,
and any one alone would have been sufficient to cause the injury Ds conduct is
the cause in fact if it was a substantial factor in causing injury.
2. Alternative liability theory: Summers v Tice: (2 acts, only one causes the injury
but unknown as to which one) BOP shifts to D, each must show that his
negligence is not the actual cause.
3. Distinguish both tests: Under Joint both parties caused the harm. Under
alternative causes although both parties acted negligently only one caused the
harm.
ii. Proximate causation: D is generally liable for all harmful results that are the normal
incidents of and within the increased risk caused by his act. (this is a foreseeability test).
1. D is liable for all Foreseeable harmful results.
2. Common Dependant Foreseeable intervening causes: negligent medical
treatment, negligent rescue, protective movement in reaction, subsequent
disease or accident.
3. Independent Intervening Causes Forces that are not a natural response or
reaction to the situation created by Ds conduct may be foreseeable if Ds
negligence increased the risk of harm from these forces. These forces include:
negligent acts of third persons, crimes and intentional torts of third persons, and
acts of God.

TORTS 8

4.

Superseding intervening causes: intervening forces that produce

unforeseeable results (results not w/in the increased risk created by Ds
negligence) are generally deemed unforeseeable and superseding and will break
the causal chain.
a. Superseding forces break the causal connection between Ds initial
negligent act and Ps ultimate injury, thus relieving D of liability.
iii. Eggshell Skull The defendant is liable for all injuries suffered by plaintiff even if
surprisingly great in scope. The Defendant takes the Plaintiff as he finds him even if
Plaintiff is frail.
K. Damages: plaintiff must have suffered damages; nominal damages are not available. P has a
duty to mitigate damages.
i. Personal Injury P is to be compensated for all his damages (past, present, and
prospective)
1. Specific Economic damages medical expenses, loss of wages
2. General Non-economic damages pain and suffering
ii. Property Damages The measure of damage is the reasonable cost of repair, or if
destroyed the fair market value at the time of the incident.
iii. Punitive Damages P may recover punitive damages if Ds conduct is wanton and
willful, reckless, or malicious.
iv. Non-recoverable items Non-recoverable items include (i) interest from the date of
damage in a personal injury action and (ii) attorneys fees.
L. Defenses
i. Comparative negligence: where P is contributorily negligent, Ps recovery will be
reduced in proportion to percentage of Ps fault.
1. Pure P recovers minus any percentage at fault
2. Modified (Partial) P fault over 50% is a bar to recovery
ii. Contributory negligence: where Ps own negligence contributes to her injuries, P is
barred from recovery.
1. Exception: Last Clear Chance: Ps contributory negligence will not be a bar to
recovery and D will be held liable if P can say that D had last clear chance to
avoid injury but didnt if:
a. Ds negligent act occurs after Ps contributorily negligent act, and
b. D could have avoided the accident/injury with due care
c. Note: LCC is Ps rebuttal to the defense of Contributory Negligence.
iii. Essay: Contributory Negligence/Comparative Negligence At common law, where Ps
own negligence contributes to his injuries, P is barred from recovery. However, many
jurisdictions use a comparative negligence system where P can recover damages minus
the percentage of their contributory negligence.
iv. Assumption of risk: P is barred from recovery where he was aware of the risk and
voluntarily proceeded in the face of the risk.
VII. STRICT LIABILITY P must show the nature of Ds activity imposes an absolute duty to make safe,
the dangerous aspect of the activity was the actual and proximate cause of Ps injury, and that
the P suffered damages to person or property.
A. Liability for Trespassing Animals An owner is strictly liable for reasonably foreseeable
damage done by a trespass of his animals.
i. Fencing in: owner is not strictly liable for trespassing livestock if attempts to fence in and
is strictly liable if does not fence in.
ii. Fencing out: If P properly fences his land, P has strict liability claim against D whose
animal breaks in.
B. Personal Injuries
i. Strict Liability for Wild Animals: An owner is strictly liable to licensees and invitees for
injuries caused by wild animals as long as the injured person did nothing to bring about
the injury.

TORTS 9

ii. No Strict Liability for Domestic Animals: Generally there is no strict liability for
domestic animals.
1. Exception: You can be found strictly liable if you keep a domesticated animal
and have knowledge of its vicious or dangerous propensities. Dogs dogs that
have previously bitten someone constitutes knowledge of vicious propensities.
Every dog gets one free bite. 1st bite negligence, 2nd or more bite strict liability.
iii. Strict Liability Not available to trespassers: Strict liability will generally not be
imposed in favor of trespassers in the absence of the owners negligence. However, a
landowner may be liable on intentional tort grounds for injuries inflicted by vicious
watchdogs.
C. Ultra-hazardous or abnormally dangerous activities: D is strictly liable for activities that
involves a foreseeable risk of serious harm to persons or property, cannot be made safe no
matter how much care is taken, and is uncommon in the particular area. (Rylands v Fletcher)
i. Test Hint look for blasting or dynamite, use of highly dangerous toxic and easily
dispersed chemical or biological material, or nuclear energy or radiation
D. Defenses: Assumption of risk, comparative negligence. (contributory negligence is NO
defense)
VIII.

PRODUCTS LIABILITY/THEORIES OF LIABILITY: There are five theories of liability that P

may use: 1) Strict Product Liability in Tort, 2) Negligence, 3) Implied Warranties 4)
Representation/Express Warranties, and 5) Intent. P must show a defect which existed when
the product left Ds control.
A. Strict Products Liability in Tort P must show (i) a strict duty owed by a commercial supplier of
a product; (ii) production or sale of a defective product; (iii) actual and proximate cause; and (iv)
damages. P was making foreseeable use at the time of injury (misuse can be foreseeable).
i. Strict Duty: D has a duty to supply safe products.
1. Strict products liability applies only to products and does not extend to services.
2. There is no privity required therefore users, consumers, and bystanders can sue
3. Every party in the distribution chain must be a merchant therefore any
commercial supplier can be held liable. Casual sellers will not be held strictly
liable. i.e. selling at garage sales.
ii. Production or sale of a defective product (Breach): P must show that the product is
defective. The defect must make the product dangerous beyond the expectation of the
ordinary customer.
1. Types of Defects
a. Manufacturing defect: is shown where product differs from all other
products that came off of the same assembly line in a way that makes it
more dangerous than consumers would expect. (Consumer Expectation
Test)
b. Design defect: Where all products of a line are the same but have
dangerous propensities, they may be found to have a design defect. A
design defect is shown where P shows an alternative design that is safer,
economically feasible and practical (does not destroy utility of the product).
c. Inadequate warnings: a maker is liable for products with residual risks
that are not apparent to consumers, and cannot be repositioned.
iii. Actual and Proximate Cause:
1. Actual: Must show that the defect existed when the product left Ds control.
2. Proximate: the act and resulting injuries were a foreseeable result of Ds
conduct, or the Ds conduct was a substantial factor in causing injury.
iv. Damages: Physical injury or property damage must be shown. Recovery will be denied
if the sole claim is for economic losses.
v. Defenses: comparative negligence and assumption of risk. Disclaimers are irrelevant
for negligence or SL cases if personal injury/property damages occur

TORTS 10

B. Negligence: P must show duty, breach, actual and proximate cause and damages.
i. Duty of Care: A duty of care is owed to any foreseeable plaintiff. Privity is not required.
ii. Breach of duty is shown by (i) negligent conduct of D leading to (ii) the supplying of a
defective product.
1. Negligence is proved the same as in a standard negligence case. Retailers and
wholesalers can usually satisfy their duty through a cursory inspection.
2. P can invoke Res Ipsa Loquitur.
iii. Causation: Actual and Proximate Cause. (Same as Strict Torts Liability)
1. An intermediarys (wholesaler) negligent failure to discover a defect does not
supersede the original manufacturers negligence unless the intermediarys
conduct exceeds ordinary foreseeable negligence
iv. Damages: physical injury or property damage must be shown. Recovery will be denied
if the sole claim is for economic loss.
v. Defenses: Comparative negligence and assumption of the risk.
C. Implied Warranties of Merchantability and Fitness There are two warranties implied in every
sale of goods that can serve as the basis for a products liability suit.
i. Implied warranty of merchantability: (implied in every sale of goods) is a warranty that
goods are of average acceptable quality and are generally fit for the ordinary purpose for
which the goods are used.
ii. Implied warranty of fitness for a particular purpose: (implied in every sale of goods)
is a warranty that arises when the seller knows or should know the particular purpose for
which the goods are required and that the buyer is relying on the sellers skill and
judgment in selecting the goods.
1. Narrow horizontal privity requirement: buyer, family, household and guests can
sue for personal injuries.
iii. Breach: If the product fails to live up to either of the above standards, the warranty is
breached and the defendant will be liable.
1. Notice of Breach: U.C.C. 2-607 requires the buyer to give the seller notice
within a reasonable time after buyer discovers or should have discovered the
breach.
iv. Causation: Actual and Proximate Cause handled same as negligence.
v. Damages: Personal injury, property damages, and purely economic losses are
recoverable.
vi. Defenses: Assumption of the risk, contributory/comparative negligence, failure to give
notice of breach under U.C.C. 2-607.
D. Representation Theories
i. Express Warranty: Any affirmation of fact or promise concerning goods that becomes
part of the basis of the bargain creates an express warranty.
ii. Defenses: Assumption of the risk, contributory/comparative negligence
iii. Misrepresentation of Fact: A seller will be liable for misrepresentations of facts
concerning a product where (i) the statement was of a material fact concerning the
quality or uses of goods and (ii) the seller intended to induce reliance by the buyer in a
particular transaction.
1. Mere puffery is insufficient
iv. Defenses: Assumption of the risk is not a defense if P is entitled to rely on the
representation. Contributory/comparative negligence is same as in strict liability unless
D committed intentional misrepresentation.
E. Liability based on Intent: D will be liable to anyone injured by an unsafe product if D intended
the consequences or knew that they were substantially certain to occur. (look for battery)
1. Privity is not required, any injured P can sue.
ii. Damages: In addition to compensatory damages, punitive damages are available.

TORTS 11

iii. Defenses: The defenses are those available in other intentional torts cases.
IX. NUISANCE
A. Private nuisance: A substantial, unreasonable interference with a private individuals use and
enjoyment of property that he actually possesses or to which he has a right of immediate
possession.
i. Substantial: The interference must be offensive, inconvenient, or annoying to an
average person in the community.
B. Public nuisance: unreasonably interference with the health, safety, or property rights of the
community
i. Recovery is available only if P has suffered some unique damage not suffered by the
public at large.
C. Defenses for Private and Public Nuisance
i. Legislative Authority (zoning ordinance) is not an absolute defense but is persuasive.
ii. Conduct of others No one actor is liable for all damages caused by concurrence of
his acts and others. 10 mills pollute a stream. Each mill is responsible only for the
pollution it causes.
iii. Coming to the Nuisance One may come to a nuisance and thereafter pursue an
action. Its not a bar to recovery unless P came to the nuisance solely to bring forth a
cause of action.
1. Coming to the nuisance is not a legitimate defense and is usually a wrong
answer.
X. GENERAL CONSIDERATIONS
A. Vicarious liability: Employers are liable for employees torts committed within the scope of
employment.
i. Hiring party and Independent contractor: general rule is that there is no vicarious liability.
Exception: if an independent contractor injures an invitee the landowner is liable.
ii. Auto owner and auto driver: general rule is that there is no vicarious liability. Exception: if
the driver is doing an errand for the owner then the owner is vicariously liable for the
drivers torts.
iii. Parents and children. General rule: Parents are not vicariously liable for the torts of their
children.
B. Joint tortfeasors: joint defendants may seek contribution or indemnification from the other, but
both are jointly and severally liable to the P. The P can collect all or part of any damages he or
she is awarded from any tortfeasor.
C. Survival Statutes: Allow actions to continue after the death of the P. The action is brought by
the estate of the decedent.
D. Wrongful death: recovery is allowed for pecuniary injuries resulting from the death of a spouse
or next of kin to the extent the decedent would have recovered had he lived. Recovery can be
for economic losses, as well as the loss of comfort and companionship.
E. Loss of consortium A spouse can bring a cause of action for loss of consortium when a
spouse is injured. Any defense that can be used against the main spouse can be used against
the consortium spouse. Damages: loss of services (no one to help around the house), loss of
society (companionship), loss of sex.