1. Transferred intent
    So long as ∆ desires to produce any forbidden consequence, he will be liable if anything happens.
  2. Battery : Elements
    • (1) ∆ commits a harmful or offensive contact,
    • (2) Contact must be with π's person

    • Person includes anything π is holding.
    • ∆ need not use his own body to effectuate the contact, just needs to cause it or set it in motion.
  3. Assault : Elements
    • (1) ∆ places π in a reasonable apprehension of
    • (2) Apprehension must be of an immediate battery.

    There must be conduct. Words alone insufficient.
  4. Assault: What is Reasonable Apprehension?
    • Belief that ∆ is capable of carrying-out a battery
    • Belief that a battery is imminent

    How the bar exam will try to trick you: (i) David-and-Goliath, or (ii) the "unloaded gun" problem
  5. Assault: What is Imminent Battery?
    • Must have menacing conduct/gestures
    • Mere words alone lack immediacy
    • But, words could negate ostensibly menacing gestures (e.g., "if you weren't my friend, I'd punch you")
  6. False Imprisonment : Elements
    • (1) ∆ commits an act of restraint
    • (2) π is confined to a bounded area
  7. False Imprisonment: What is an Act of Restraint?
    Only counts if π knows about the restraint or is harmed by it

    • Frequently encountered situations:
    • (1) Threats (person of ordinary sensitivity), or
    • (2) Omission of duty, where ∆ has a pre-existing obligation to help π move around (e.g., physically disabled).
  8. False Imprisonment: What is a Bounded Area?
    An area is bounded only if π's freedom of movement is limited in ALL directions.

    • Not in a bounded area if . . .
    • (1) Reasonable means of escape, and
    • (20 Means of escape can reasonably be discovered

    Note: Escape is not reasonable if it is dangerous, disgusting, humiliating, or hidden
  9. Intentional Infliction of Emotional Distress: Elements
    • (1) ∆ must engage in outrageous conduct; and
    • (2) π must suffer severe distress

    • Outrageous conduct = "Conduct exceeds all bounds of decency tolerated in a civilized society."
    • Severe Distress ≠ "mildly" annoyed, irritated, or chagrined
    • Reckless behavior can satisfy the "intent" requirement.
  10. IIED : Elements : Outrageous?
    "Conduct exceeds all bounds of decency tolerated in a civilized society." Consider the following . . .

    • Conduct is continuous and repetitive
    • ∆ is a common-carrier or inn-keeper
    • π is a member of a fragile class of persons (e.g., children, elderly pregnant women, hate-speech)

    Note: Mere insults, without more, are not outrageous/actionable
  11. Trespass to Land : Elements
    • (1) ∆ commits an act of physical invasion by a voluntary act, and
    • (2) π must be a possessor of land. (Ownership is irrelevant.)

    • Intent = ∆ wanted/intended to get to a particular location through a voluntary act.
    • Note: ∆'s knowledge (or intention) of whether he/she actually crossed a boundary line is irrelevant.
  12. Trespass to Chattels: Definition
    Modest interference with enjoyment of personal property—for example . . .

    • Deliberate damage (keying your car),
    • Temporary theft (unauthorized "borrowing")
  13. Trespass to Chattels : Recovery?
    • Fair rental value
    • Cost of repair
  14. Conversion : What is it?
    Significant interference with the enjoyment of personal property.
  15. Conversion : Recovery?
    Special Remedy—π can recover full market value (not just rental or repair)

    Note: a bona fide purchaser for value cannot be a converter
  16. Consent: Express: Definition and Limitations
    Acts as an affirmative defense to all intentional torts.

    • Actions outside the scope of consent do not escape liability
    • Fraud or duress negates express consent
    • Must have legal capacity to consent
    • Children, though lacking normal legal capacity, may consent to age-appropriate conduct
  17. Consent: Implied
    • (1) Customary practice (e.g., most doctor's visits), OR
    • (2) ∆'s reasonable interpretation of π's objective conduct

    • Successful implied consent is an affirmative defense to all intentional torts
    • Focus on π's objective conduct—π's subjective mental reservations are irrelevant.
    • Actions outside the scope of the implied consent are still actionable.
  18. Scope of Consent in Medical Procedures
    If physician operates on you and expands that operation to a completely unrelated part of the body, that is a battery.

    BUT Surgery of adjacent areas is generally within the scope of consent.
  19. Types of Protective Privileges
    • Self-Defense
    • Defense of others
    • Defense of Property
  20. Protective Privileges : Requirements
    • (1) Proper Timing: Threat must be in-progress or imminent—No revenge
    • (2) Reasonable belief that threat is genuine
    • (3) Protective force is proportional to threat posed

    • Notes:
    • Belief in genuineness: Defense is not lost if ∆ makes a reasonable mistake under the circumstances
    • Amount of Force–Rule of Proportionality, Necessity and Symmetry–
    • May use deadly force to fend-off other deadly force.
    • Deadly force may be used to protect human life—never property.

    • NY Distinctions Prior to using deadly force, ∆ must attempt to retreat unless:
    • (1) Retreat would be dangerous or not feasible
    • (2) ∆ is within his/her own home
    • (3) ∆ is a cop or assisting a cop.
  21. Necessity : Public Necessity
    • When: ∆ invades π's property in an emergency to protect the community as a whole, or a significant group of people
    • Absolute defense: No liability
  22. Necessity : Private Necessity
    When: ∆ invades π's property in an emergency to protect ∆'s interests


    • Liable for actual damages to π's property
    • Not liable for nominal or punitive damages
    • ∆ is allowed to remain on π's land in a position of safety for as long as an emergency continues. Otherwise, π is liable for a battery.

    NB—There is no liability if ∆ acts to protect π's own property
  23. Injuries Caused By Domesticated Animals
    • No strict liability unless
    • (1) ∆ has a domesticated animal with vicious propensities; and
    • (2) ∆ knows in advance of vicious propensities

    Trespassers: No strict liability can be imposed by a trespasser. However, a trespasser may have an intentional tort or negligence (possessor of land) claim for injuries inflicted by vicious watchdogs (think "spring-gun").
  24. Injuries Caused by Wild Animals
    Wild Animals: Strictly liable for injuries inflicted upon licensees and invitees as long as injured person did nothing to bring about the injury.

    Trespassers: No strict liability can be imposed by a trespasser. However, a trespasser may have an intentional tort or negligence (possessor of land) claim for injuries inflicted by vicious watchdogs (think "spring-gun")

    Note: Injuries incurred while fleeing are forseeable.
  25. Abnormally Dangerous Activities
    • Strict Liability if:
    • Activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
    • The activity is not a matter of common usage in the community.

    Note: Injuries incurred while fleeing are foreseeable.
  26. Products Liability: Strict Liability
    • 1: ∆ is a commercial supplier of a product. Does not extend to service providers or casual sellers.
    • 2: Product has a defect that makes it unreasonable dangerous;
    • 3: Product has not been substantially altered since it\ left ∆'s control.
    • 4. π was making foreseeable use of the product at the time he was injured, and
    • 5: Damages–Physical injury or property damages must be shown.

    Note: That the defect existed when product left ∆'s control will be inferred if the product moved through normal channels of distribution.
  27. Products Liability: Manufacturing Defect
    Product departs from its intended design in a way that makes it more dangerous than the products made properly.
  28. Products Liability: Design Defect
    • (1) There exists a safer, practical and cost-effective way to build it; OR
    • (2) Inadequate warnings or instructions–duty to warn if product has certain risks that cannot be reasonably eliminated, and a consumer would not normally be aware of those risks.

    • Practical = Would not undermine product's purpose
    • Cost-effective = Alternative design would not make the product significantly more expensive.
  29. Affirmative Defenses to Strict Liability
    • In contributory negligence jurisdiction: assumption of risk.
    • In pure comparative negligence jurisdiction: Damage reduction based on percentages.
  30. Negligence : Elements
    • 1. Duty of care
    • 2. Breach of duty
    • 3. Causation
    • 4. Damages
  31. Duty: Two inquiries
    • 1. To whom does ∆ owe a duty of care? (Foreseeable victims)
    • 2. What standard of care does ∆ owe?

    • Foreseeable victims include:
    • People within proximity (the "zone of danger")
    • Rescuers (can be foreseeable π)
    • Pregnant women (in NY only)
  32. Duty : Default Standard of Care
    • Test: Reasonably prudent person acting under similar circumstances
    • Objective test: ∆'s individual characteristics are ignored

    But, ∆ characteristics considered where

    • ∆ has a physical impairment (e.g., disabled)
    • ∆ has advanced or superior skill or knowledge (e.g., doctors)
  33. Duty : What standard of care does a CHILD ∆ owe to potential πs?
    • < 4 years: Child owes no one a duty
    • ≥ 4 years: Child of the same (1) age, (2) experience, and (3) intelligence under similar circumstances
    • < 18 and engaged in adult activity: Default std (reasonably prudent person under similar circumstances

    An adult activity tends to be one involving the operation of a motorized instrument, e.g., cars, boats, chainsaws
  34. Duty : ∆ is a Professional
    • Duty of care: Average member of that profession, practicing in a similar community
    • Evidence of actual community custom: Establishes standard of care applicable to ∆ professional
    • Specialists: Compare specialists to other specialists, regardless of geography
    • NY Distinction: Doctors must inform patients the risks of any procedure, unless doing so would harm patient.
  35. Duty : MS Possessor of Land
    Source of Injury: Two possibilities—(1) Activity conducted by ∆ or ∆'s agents, (2) hazardous static condition (HSC) distinguish natural from man-made HSCs

    Undiscovered Trespasser: Not a foreseeable victim, ∆ owes no duty of care

    Discovered or Anticipated Trespasser: Must protected discovered or anticipated trespassers from all known man-made death traps on the land

    Licensee (e.g., social guests): ∆ must (1) warn licensee about all known traps (natural and man-made) on the land, and (2) use reasonable care in the exercise of activities on the land

    Invitee (e.g., commercial benefit or general public): ∆ must (1) warn invitee about all reasonably knowable or discoverable traps (whether natural or man-made), and (2) use reasonable care in the exercise of activities on the land
  36. Duty : NY Possessor of Land
    • Applicable standard: Reasonably prudent person under similar circumstances
    • Tip: Follow the analysis applicable to MS possessors of land to determine what is reasonably prudent
  37. Duty : Possessor of Land : Firefighter Exception
    Firefighter's rule: Assumption of risk. NY: Can't sue employer, but can sue other third parties.
  38. Duty: Possessor of Land: Child Trespassers
    • "Attractive nuisance" doctrine. Must show
    • (1) ∆ knew or should have known of an artificial hazardous static condition (HSC),
    • (2) that children were likely to trespass on the land,
    • (3) that the artificial HSC was likely to cause serious injury b/c of the child's inability to appreciate the risk, and
    • (4) the expense of remedying the situation is slight compared to the magnitude of the risk
  39. Minimum required to satisfy duty to trespassers for hazardous static conditions
    • Adults = provide warnings
    • Children = build barriers to entry
  40. Duty : Statutory Standards of Care
    Borrow the standard of care from the statute?

    • Yes: When all of the following are present: (1) π is in intended class of persons, (2) π's injury is within class of risks, and (3) statute clearly describes conduct.
    • No: Compliance would be impossible or increase danger to π
  41. Duty : NY No-Fault Insurance
    • Ability to collect: (1) ≤ $ 50,000; and (2) owner, driver, passenger, pedestrians
    • Availability of additional remedies in tort: (a) death, dismemberment, significant disfigurement, etc.; (b) damages > $ 50k
    • What can be recovered: Personal injuries (but not pain and suffering, or property damage)

    Note that bad persons (e.g., drunk drivers, thieves) are barred from recovery under a no-fault insurance plan

    Also note that a no-fault plan is "portable" outside of NY—i.e., still possible to recover, even though accident occurs outside of NY, so long as policy was purchased in NY
  42. Duty : Negligent Infliction of Emotional Distress
    • 1. Near miss: (1) ∆'s negligent conduct, (2) put π in a "zone of danger," (3) π suffered distress, and (4) resulting physical manifestations
    • 2. Bystander: (1) π is contemporaneous witness to (2) bodily injury inflicted on (3) close family member (strict construction), and (NY only) π was also in zone of danger
    • 3. Special relationship between π and ∆: Foreseeable risk of emotional distress (e.g., negligent medical diagnosis)
  43. Breach
    • Identify: wrongful behavior (fact)
    • Explain: why the identified behavior (fact) falls short of the applicable standard of care
  44. Res ipsa loquitur
    • If you can't identify a specific wrongful act, you can use res ipsa loquitur if–
    • (1) the accident is normally associated with negligence, and
    • (2) the accident would normally be caused by the negligence of someone in the ∆'s position–e.g., showing ∆ was in control of the object.
  45. Causation: Definition
    • Must show BOTH: Factual and Proximate Causation
    • Factual Causation: But-for test, and Multiple ∆s
    • Proximate Causation: "Fair" to hold ∆ liable for foreseeable consequences
  46. Causation : Factual Causation : But-for Test
    • Causation: But-for ∆'s negligence, there would be no injury
    • No causation: Even-if ∆ was not negligent, π would still be injured (e.g., because π threw himself in front of ∆'s truck)
  47. Causation : Factual Causation : Multiple ∆s
    • Causes combined: Substantial Factor Test–Causation, if a breach would, in itself, be sufficient to cause π's injury. If both ∆s are substantial factors, then joint and several liability.
    • Unascertainable Cause: No mechanism to figure out which ∆ did it. Burden shifted from π to ∆—∆ must prove that he/she wasn't at fault
  48. Proximate Cause
    A ∆ generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts—i.e., when the consequences of ∆'s negligent action are foreseeable

    • Foreseeable: Causation
    • Unforeseeable: No causation
  49. Proximate Cause
    • Defined: Occurs when ∆'s breach leads directly to π's injury—i.e., uninterrupted chain of events.
    • Causation: ∆ is liable for all foreseeable harmful results, regardless of unusual manner or timing.
    • ∆ is NOT liable for unforeseeable harmful results not within the risk created by ∆'s negligence.

    In summary—

    • Direct + Foreseeable consequence: Causation
    • Direct + Unforeseeable consequence: E.g., freakish or bizarre—No causation
  50. Proximate Causation: Intervening Causes
    Occurs when ∆ breaches duty, and there are intervening events between the breach and π's injury.

    • ∆ is liable for indirect injuries that are–
    • (1) Reasonably expected to happen as a result of ∆'s breach.
    • (2) The foreseeable result of unforeseeable intervening forces.
    • (3) The result of ∆'s negligence that increased the risk of harm from independent intervening forces.

    Well-settled cases—Causation found

    • Intervening medical negligence
    • Intervening negligent rescue
    • Intervening reaction/protection forces (e.g., mass hysteria stampede)
    • Subsequent disease or accident (e.g., infection, falling off crutches)
  51. Damages
    • If the other 3 elements are satisfied, ∆ is liable for all damages arising from the breach no matter how great in scope.
    • Damages are not presumed. π must make a showing.

    • Three types:
    • 1. Personal injury
    • 2. Property damage
    • 3. Punitive damages–∆'s conduct is wanton or willful. NY: only awarded for gross negligence.

    π has duty to mitigate damages.
  52. Damages: Collateral Source
    Damages not reduced just because π received benefits from other sources.

    NY Distinction: Courts are required to reduce a successful π's damage award by the amount of any benefits that π has received or will receive from collateral sources. EXCEPTIONS: life insurance, certain SS benefits.
  53. The "egg-shell skull" rule
    • You take your π as you find him.
    • The egg-shell-skull rule applies to all successfully proven torts—not just those in negligence
  54. Traditional Contributory Negligence
    • Complete bar to recovery
    • EXCEPTION: Last Clear Chance–Despite π's contributory negligence, person with the last clear chance to avoid the accident who fails to do so is liable for negligence.
  55. Assumption of Risk

    NOT a defense to an intentional tort (that would be consent).

    • EXPRESS ASSUMPTION–express agreement
    • (i) knew of the risk,
    • (ii) appreciated the risk, and
    • (iii) voluntarily proceeded in face of risk.
  56. Pure Comparative Negligence
    Jury allocates fault. π's recovery is reduced accordingly so π will always recover something, even if π has the bulk of fault.
  57. Partial/Modified Comparative Negligence
    • If π <50% at fault, damages will be reduced.
    • If π >50% at fault, NO RECOVERY.
  58. Common Law Defamation : Elements
    • DEFAMATORY statement IDENTIFYING the π
    • PUBLICATION to at least one 3rd-party
    • INJURY to reputation
  59. Common Law Defamation : When is a Statement Defamatory?
    When the statement tends to adversely affect π's reputation (esp. commercial reputation)

    • Focus: Allegation that affects a putative fact about the π
    • Statement of opinion: Would a reasonable listener assume the opinion has a factual basis?

    Note: π must be specifically identified and alive at time the statement is made
  60. Common Law Defamation : Types of Defamatory Statements?
    • Libelwritten (or via tv or radio broadcast) statement, defamatory on its face
    • Libel per quod—statement not defamatory on its face (defamatory impact requires extrinsic evidence)
    • Slander per se—closed list of oral statements
    • Slander not per se
  61. Common Law Defamation : Slander Per se Categories
    • Adversely reflects on π's business or profession
    • Statement that π has committed a crime of "moral turpitude"
    • Statement impugning that a woman is unchaste
    • Statement that π suffers from a "loathsome" disease
    • NY Distinction: 5th category—insinuation of homosexuality
  62. Common Law Defamation : Published Statement?
    ∆ must share statement with at least one 3rd-party

    Note: Publication need not be deliberate—

    • Effective publication can occur through reckless or negligent conduct
    • Test: Likelihood that other people will learn about the defamatory statement
  63. Common Law Defamation : Must π prove Damages?
    • Libel—Damages need not be shown (they are presumed), unless
    • Slander per se—Damages need not be shown (they are presumed)
    • Slander not per se—Must prove economic damages, such as loss of job, business, or commercial contracts

    NY: Libel per quod—Must prove economic damages, unless statement is per se defamatory
  64. Common Law Defamation : ∆'s Defenses
    • Consent: Express/implied, capacity, scope)
    • Truth: Factually accurate
    • Absolute or Qualified Privilege: Who (absolute) and when (qualified—strong social interest in encouraging candor: (i) confidential communication to another (ii) concerning a 3rd-party (iii) in which both have a legitimate interest)

    Absolute—spouses, government officers engaged in conduct of their official duties

    • Qualified—Strong social interest in encouraging candor. (e.g., letters of recommendation).
    • 2 Limitations: (1) ∆ reasonably believes that the statement is accurate; AND (2) ∆ must confine himself to matters that are relevant.
  65. Statements of Public Concern : Additional Elements
    • π must prove falsity of the statement, and
    • π must prove fault on the part of ∆
    • Fault

    • π is a Public Figure—Fault = Intent or recklessness
    • π is not a public figure (private)—Fault = Negligence
  66. Fraud: Elements
    • 1: ∆ misrepresents fact
    • 2: Make deliberately or recklessly
    • 3: In order to induce reliance
    • 4: π relies on misrepresentation
    • 5: Economic damage
  67. Prima Facie Tort
    Intentional infliction of pecuniary harm without justification

    • 1: Intent to do harm
    • 2: Resulting harm

    Example—Deliberately selling products below cost to drive a rival out of business
  68. Inducing Breach of Contract : Elements
    • 1. Existence of a valid contractual relationship between π and a 3rd-party or a valid business expectancy
    • 2. ∆ knows about K or business expectancy
    • 3. ∆ intentionally interferes by encouraging π to breach K or terminate the expectancy
    • 4. Damages (e.g., π breaches K with 3rd-party, as a result)
  69. Inducing Breach of Contract: Who can non-breaching π sue?
    The non-breaching 3rd-party can sue:

    • π for breach of K, and
    • ∆ for inducing the π's breach
  70. Inducing Breach of Contract: Defenses
    ∆ may be relieved of liability if he/she has a special relationship with one of the contracting parties

    Examples—advice from attorneys, accountants, parents, clergy
  71. Theft of Trade Secrets
    • π must possess a valid trade secret, and
    • ∆ must take the secret by improper means
  72. Trade Secret: Definition
    • (1) Info that provides a business advantage
    • (2) Info must be secret, not generally known AND
    • (3) Owner must take reasonable steps to keep the info secret
  73. Theft of Trade Secret: What is an "Improper Means"?
    • (1) Traitorous insider–breach of confidentiality and trust.
    • (2) Industrial espionage
  74. Appropriation
    • ∆ uses π's name/image for a commercial purpose
    • Exception: Newsworthiness

    • Note: π doesn't have to be a celebrity/public figure to have name/image appropriated
    • Appropriation is the only privacy tort recognized by NY
  75. Instrusion
    Invasion of π's seclusion, in a way objectionable to an average person

    • π's location: Reasonable expectation of privacy?
    • Note: Trespass to land is not required (e.g., intrusion can occur through wire-tapping off-site)

    Not recognized as a cause of action in NY
  76. Privacy Torts : False Light
    • ∆ makes a wide-spread dissemination of a major falsehood about π
    • Strict-Liability Standard: Honest mistakes are actionable, if π can prove that the statement is objectionable to an average person and that it is false—tortious intent is not required
    • Remedies: Emotional damages
    • Not recognized as a tort in NY

    Note that to qualify as a "major falsehood," the statement need not be defamatory. The standard is whether it is false, and that it is objectionable to the average person—this requires some understanding of context in which the statement was made

    Note also that unlike the tort of defamation—where the ∆ need only tell at least one person other than the π—in a "false light" case, the ∆ must have made a wide-spread dissemination of the statement.
  77. Disclosure
    • Wide-spread dissemination of confidential information about π, that would be objectionable to the average person
    • Exception: Newsworthiness, i.e., legitimate public interest (broadly construed)
    • Not recognized as a cause of action in NY

    The information must truly be confidential—i.e., π must have taken reasonable steps to ensure its secrecy.
  78. Privacy Torts : Affirmative Defenses
    • Consent: Bars π's recovery for all 4 privacy torts
    • Absolute/qualified privileges: Bars recovery for false light and disclosure
  79. Abandoned Property
    True owner of property intends to give up both (1) title, and (2) possession
  80. Lost Property
    • True owner of property—
    • (1) Has involuntarily or inadvertently lost possession of property,
    • (2) BUT does not intend to give up title or control.
  81. Abandoned Property : Finder's Rights
    • Finder obtains both possession and title if—
    • (1) He exercises control over the property;
    • (2) With intent to assert ownership.
  82. Lost Property: Finder's Rights
    Value < $ 20—Title to found property vests in finder after–

    • (1) Finder makes reasonable effort to locate true owner, and
    • (2) True owner does not claim after 1 year

    Value ≥ $ 20—Title to found property vests in finder after–

    • (1) Finder turns property over to police;
    • (2) Police hold property for statutorily prescribed period;
    • (3) True owner does not claim within the prescribed period; AND
    • (4) Finder asks police for property.
  83. Absolute Gift : Inter Vivos
    • (1) Donor has donative intent (give up title and possession), and
    • (2) Valid acceptance by donee, and
    • (3) Delivery to donee

    • Notes:
    • Acceptance may occur by affirmative act or silence
    • Delivery includes delivery of actual property, or an emblematic representation of the property
  84. Absolute Gift : Causa Mortis
    Gift must be (1) in contemplation of death, and (2) donor's death must be imminent

    • Notes:
    • Donor's death must be objectively likely
    • Donor must die (no gift if donor survives)
    • No gift if donee predeceases donor
  85. Lien: Definition
    • (1) Debt relating to performance of services;
    • (2) Creditor has possession of item in question; and
    • (3) Debtor retains title to property.
  86. Liens : Types of Liens
    General Lien

    • Creditor can satisfy lien with a variety of property
    • E.g., self-storage warehouses
    • Creditor's return of some property to debtor does not discharge general lien

    • Special Lien
    • Creditor has possession of specific property worked-on.
    • Creditor's voluntary return of special-lien property extinguishes the lien, but does NOT release the debt.
  87. Bailment
    Occurs when someone takes possession of property for a specific time, and for a specific purpose
  88. Bailment: Bailee's Duties
    Must take reasonable steps to protect the bailed property.
  89. Bailment: Bailed Property
    • Bailed property includes:
    • (1) The property itself
    • (2) Ordinary/Expected things inside the bailed property

    Bailed property does not include unusual/unexpected things inside the bailed property, unless the bailed property is a safe-deposit box.
Card Set
Torts ALL