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#Post#: 59--------------------------------------------------
Torts 2 Outline
By: SunsetSailor Date: February 17, 2011, 9:36 pm
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I. Strict Liability
a. Types
i. Animals
1. Strict Liability UNLESS Unexpected damage (lion steps on
foot)
2. Domesticated Animal Statutes (Dog-Bite statutes)
ii. Land Oriented Activities
1. Ryland (use only for property harm)
a. Bring something onto land
i. Not naturally there
ii. Non-natural use
b. Non-natural thing escaped
c. Capable of damage
d. Damage of expected kind
2. Blasting
a. When rights to use property infringe on the right of
protection from injury, right to property use must succumb
3. ADA (Abnormally Dangerous Activities)
a. REST 520
i. Risk of harm is great
ii. Damage can be great
iii. Cannot be prevented by due care
iv. Activity not one common to the land
v. Activity inappropriate for location
vi. Little value to community (of activity)
vii. Safety incentives and risk spreading
b. Can be used for guns? Makers of records w/ suicidal lyrics?
b. Defenses
i. Act of God
ii. Π’s fault
iii. Assumption of Risk
iv. Comparative negligence
II. Intentional Torts
a. Children:
i. Can be culpable as adults in Intentional Tort
ii. Reasonable Person (Child) Under the Circumstances
b. INTENT
i. Purpose or a desire to commit (act described in the
intentional tort)
ii. Knowledge to a substantial certainty that (act described in
the intentional tort) will result (K to a S C)
iii. Not Required to desire the result of the act, or any harm
to the Π
iv. Transferred Intent ** Make Other Arguments First!!**
1. Disliked in courts
2. Transferred purpose
a. Person (A to Π)
b. Type (Δ Intends Assault on A, may transfer Battery to
Π)
3. Intent must be transferred, K to a S C cannot be transferred
c. Battery
i. Intent:
1. Purpose or desire to commit act of harmful or offensive
touching or contact
2. K to a S C that harmful or offensive touching or contact will
result
ii. Act
1. Harmful or offensive…
a. Objective standard for offensive
i. RP would consider offensive
ii. No need to be conscious to be offended
b. Harmful
2. Touching or contact. (Be Creative!)
a. Touching
b. Put in to motion that which causes contact
c. Contact with item closely associated w/body of Π (hat,
clothing, camera…)
iii. Result: Harmful or offensive touching or contact does
occur.
iv. Awareness: Π need not be aware during commission of
battery for a battery to have occurred.
v. Defense: Allowable amount of touching in society.
1. Simply by going out into society, give consent for allowing
certain amount of touching
2. Jury is aware of touching allowable in society…
d. Assault
i. Intent:
1. Purpose or desire to commit an act causing apprehension of
imminent harmful or offensive conduct.
2. K to a S C that an act causing apprehension of imminent
harmful or offensive conduct will result.
ii. Act
1. To cause apprehension…
a. Everything from fear to worry
b. Apprehension in a reasonable person under the circumstances
i. No “thin-skulled Π”
ii. UNLESS Δ knows of Π’s thin-skulled condition!!!
iii. Π must be aware of the threat to feel apprehension
2. of Imminent harmful or offensive conduct
a. Conditional Threats are NOT Imminent, so are not assault
b. Unless threat is present without conditional language
(brandish a gun…)
iii. Result: Apprehension of imminent harmful or offensive
conduct. (Reasonable Person test)
iv. Awareness: Π MUST be aware of assault (observe) for
action to be an assault.
e. False Imprisonment
i. Intent:
1. Purpose, desire to commit or K to S C that act will cause
confinement
2. against Π’s will,
3. Π has no reasonable means of escape
ii. Act:
1. To cause confinement
a. Against Π’s will AND
i. Actual/apparent physical barriers
ii. Overpower by physical force
iii. Submission to physical force
iv. Threats of physical force on Π or Π’s close family
v. Other duress (threat of losing job)
vi. Asserted legal authority
b. No reasonable means of escape
i. Embarrassment on leaving?
ii. “Reasonable” subjective for Π
iii. Result: Actually confined against will and no reasonable
means of escape
iv. Awareness: Π must be aware of confinement
1. unless physical injury as a result of the confinement
2. injury must be caused by attempt to escape(?)
v. Arrest:
1. Shopkeepers Privilege:
a. Reasonable belief that Δ committed larceny or tried to
commit larceny
b. Merchandise taken was in store (not half-burned candle)
c. Detention of Π in a reasonable manner
d. Detention for a reasonable time for enforcement to arrive and
question Π.
2. Citizens Arrest:
a. Citizen must witness misdemeanor committed in his presence
AND
b. Party must be found guilty of misdemeanor. OTHERWISE
c.  False Arrest
3. False Arrest (by law enforcement)
a. Majority:
b. If no breach of peace, office must witness crime to arrest
c. If Mistake ˝ jurisdictions say False Arrest
4. Malicious Prosecution
a. Use wrong probable cause to “get back” at somebody
b.  false improsonment
vi. Defenses: Π consented to confinement
f. Intentional Infliction of Mental/Emotional Distress
i. Intent
1. Desire to cause emotional distress
2. K to S C that Π will suffer emotional distress
3. Recklessly disregards high probability that emotional
distress will occur
ii. Act
1. Extreme and Outrageous
a. Offends against the generally accepted standards of decency
and morality
b. To filter out everyday insults and hurt feelings
c. NOT apply to simply offensive
2. To cause emotional distress
iii. Result: Severe Emotional Distress
1. SPLIT: PM’s needed?
2. SPLIT: Shock is PM?
iv. Defenses
1. 1st amendment not protected:
a. fighting words
i. words or conduct that would start riot OR
ii. put speaker in danger
b. Clear and Present Danger
i. Language PLUS Acts that goes to clear and present danger
ii. Acts may be previous record
iii. Ie: ex-convict making speech about killing a person
c. Obscenity
d. Defamatory (not useful in our democracy)
i. For Public Figures in Publications need more than extreme and
outrageous
ii. Need also False Statement w/ negligence
1. knowledge of falsity OR
2. reckless disregard as to whether statement is false
v. Awareness: Must be aware for harm as IIED
vi. Dead Intentional Torts:
1. Criminal Conversation (adultery)
2. Alienation of Affection
g. Defenses to Intentional Torts
i. Consent “Dirty hands make for no cause of action”
1. Majority – Mutual combat in anger  civilly liable
2. Minority – No COA for mutual combat in anger UNLESS:
a. Excess Force is used OR
b. Malicious intent to injure
3. Prize fighting – no COA if:
a. Combat is expressly compensated AND
b. Engaged in business or sport
4. SPLIT:
a. Consent = Defense (Δ has burden of proof of consent)
b. Consent = deletes cause of action (privilege exists) Π
has burden to show no consent
ii. Self Defense: To raise defense of Self Defense, Π must
show:
1. Π must have reasonable belief of attack
2. Π must use reasonable amount of force in defense
a. Force causing serious bodily harm or death cannot be used in
protection of property
b. Unless postings, (consent)
iii. Defense of 3rd person Rest §76
1. 3rd person has privilege of self defense AND
2. necessity exists to protect 3rd person
iv. Necessity:
1. One may use force against property of another IF:
a. Reasonable belief that force is necessary b/c of act of God
or another emergency (not created by person in danger) AND
b. Amount of force necessary is used.
2. Split:
a. Value of property of Π must be more than value of
property of Δ to recover
b. Relative property values is of no concern
3. Just Compensation: if property is damaged in necessity, user
must compensate for use
4. Public Necessity
a. Must be for public good (arguable b/t public and private, if
private, private pays for compensation)
b. Public pays for loss
c. GVN’T during war time takings are not protected by
constitution
v. Immunity
1. Qualified Immunity  Available to executive branch IF
a. No constitutional violation
b. Right clearly extablished at time of offense (reasonable
belief)
i. Look to court precident
ii. Look to other offenses, or same offense committed before and
no action
2. Absolute Immunity  for judicial/legislative branches
a. As long as within rule of judiciary/legislature
b. Violation must be in furtherance of duties
3. Bivens  violation of the constitution or a positive
statute by FED  suit available
a. Allows for punitive damages
b. Allows for jury
c. Strict Liability? Not yet litigated
d. Immunity
i. Absolute for president only
ii. All others, only qualified immunity
h. Trespass to Land
i. Trespass to Chattels
j. Conversion
III. Trespass and Nuisance
a. Trespass Invasion of property (harm or not)
i. Voluntary Entry
ii. Purpose or K to a SC that invade property
1. after first offense, subsequent  purpose
2. Mistake does not matter
b. Nuisance Invasion of use and enjoyment of property
i. Need Intentional AND Unreasonable
ii. Three ways to be compensated:
1. Gravity of Harm v. Utility of Act (nuisance)
2. Harm is Serious and Δ Can Afford to Pay
3. Harm is serious and Π Cannot bear the harm
iii. Restatement:
1. §822 – Private Nuisance – Invasion of another’s interest in
private use and enjoyment of land IF
a. intentional and unreasonable OR
b. Negligent and unintentional  negligence or SL or ADA?
2. §826 – Unreasonable
a. Harm outweighs utility of conduct (nuisance)
b. Harm caused is serious AND financial burden of compensation
would make continuation of conduct not feasible
3. §825 – Intentional = knowledge that conduct is invading or is
substantially certain to invade
4. §827 – Gravity of harm to Π
a. Extent of harm
b. Character of harm
c. Social value to type of use/enjoyment invaded
d. Suitability of use/enjoyment in locality
e. Burden on Π of evading harm
5. §828 – Utility of conduct
a. social value of nuisance conduct
b. Suitability of conduct to locality
c. Impracticability of preventing or avoiding the invasion
6. §840 – Coming to the nuisance is not a complete defense
IV. Products Liability
a. Restatement §402(a)
i. Language:
1. One who sells any product in a DCUD (Defective condition
unreasonably dangerous) to the user/consumer or to his property
is subject to liability for physical thereby caused to the
ultimate user or consumer, or to his property IF:
a. The seller is engaged in the business of selling such a
product AND
b. It is expected to and does reach the consumer or user without
substantial change in the condition in which it was sold
2. Applies although:
a. Seller has exercised all possible care in the preparation and
sale of the product AND
b. User/consumer has not bought product from or made contract
with the seller
ii. Common Law Tests:
1. Privity no longer needed (“one who sells”)
2. Includes user OR consumer
3. Excludes services (“product”)
4. Excludes purely emotional or purely economic harm
5. DCUD (Defective Condition Unreasonably Dangerous)
a. Manufacturing Defect  not designed to be as is
i. BEWARE! Manufacturing Defects may become design defects if
pattern exists!
ii. (Use only Consumer Expectation test)
b. Design Defect  designed and meant to be as is
i. Consumer Expectation Test
1. Product failed to perform as safely as expected by ordinary
consumer
a. Ordinary Consumer = a consumer that uses the type of product
in question
b. For technical products, expert witnesses may testify of
reasonable expectations of a consumer of special product.
2. defect existed when product left manufacturer
3. defect was cause of enhanced injury (cause-in-fact)
4. product used in reasonably foreseeable manner
ii. Risk-Benefit Test – Excessive preventable dangers of risk
outweigh benefits of design. Factors.
1. utility of product to user and public
2. likelihood of danger and seriousness of danger
3. availability of substitute product
4. manufactures ability to eliminate danger and keep utility of
product
5. users ability to avoid danger w/due care
6. users anticipated awareness of danger b/c of general
awareness or suitable warnings
7. Feasability to spread loss by higher price
c. Communication/Warning
i. Pitman factors Warnings must: (ADEQUACY)
1. indicate scope of danger
2. communicate extent of harm
3. physical aspects of warning must be adequate to warn
reasonable person
4. simple warn as to danger may be inadequate w/o warn of
consequences
ii. Obviously dangerous?  no need to warn
iii. Learned Intermediary Doctrine
1. Manufacturer gives complete warning to intermediary (Doctor),
Doctor then gives appropriate warning to patient
2. Exceptions:
a. Mass Immunizations (No Dr.-Patient relationship)
b. FDA establishes that warning to patient is necessary
(contraceptives, etc. Dr. doesn’t see patient often)
c. Advertise directly to consumer (less interaction…)
iv. Foreseeability of Harm (THRESHOLD)
1. Hindsight approach (strict liability)
a. Even if at time of manufacture there is no previous incident
or technology to test if danger exists, manufacturer is liable
b. No regard to Δ’s inability to have known of danger
c. MINORITY
2. Interim approach (state of the art)
a. At time of manufacture
b. Manufacturer us held to what is known (even in Finland!)
3. Negligence
a. Look to what is known at time of manufacture/distribution
b. Manufacturer is “expert in field”
v. Heeding Presumption
1. Even though warnings were adequate, consumer would not have
heeded them
2. Defense for manufacturers in Warnings only
iii. Work-Related
1. Modifications by the workplace
a. Defect must NOT exist when product was sold to workplace
b. Split
i. Foreseeable modifications  strict liability
ii. Foreseeable modification BUT no modification when purchased
= no liability
1. No liability for failure to warn
2. Can be liable for fail to warn in design defect.
c. Open and Obvious  no need to warn (BUT does not
substitute for fail to warn
d. Substantial modification  no liability (only for
design defects, not in fail to warn!)
e. Bulk Supplier Split
i. No warning necessary to employees of purchaser (no liability,
sophisticated buyer)
ii. Warning extended to employees of purchaser (yes liability)
b. RAD (Reasonable Alternative Design)
i. One engaged in the business of selling or otherwise
distributing products who sells or distributes a defective
product is subject to liability for harm to persons or property
caused by the defect
ii. Defects:
1. Manufacturing
a. Product departs from intended design
b. Even though all possible care in manufacture and sale are
taken
2. Design
a. Foreseeable risks of harm could have been reduced or avoided
by adoption of REASONABLE ALTERNITIVE DESIGN
i. Magnitude and probability of foreseeable risks of harm
ii. Instructions and warnings accompanying the product
iii. Nature and strength of consumer expectations regarding the
product (marketing)
b. Omission of alternative design makes product not reasonably
safe.
3. Warnings or Instruction
a. Foreseeable risks of harm could have been reduced or avoided
by provision of reasonable instructions or warnings
b. Omission of reasonable instructions or warnings renders
product not reasonably safe.
c. Extent of Products Liability
i. Services Split
1. If seller is anything like a professional, then services, no
products liability
2. Essence of transaction, look to dominant purchase
a. Cost of goods and services components
b. Skill needed for the service
ii. Pure economic injury SPLIT
1. Seely Approach (Majority)
a. Warranty of product (UCC) precludes Tort
b. Suit only available in K law UCC warrantees
2. Intermediate (Minority)
a. If potential for bodily injury to persons, then Tort COA
exists
b. Look to amount of risk
3. Santor Approach (Minority)
a. Duty to make product not defective
b. COA exists in Tort law
d. Defenses
i. Contrbutary/Comparitive Fault
1. Percentage or cause or contribution of cause
2. Percentage of responsibility of Π
3. Does NOT include Π’s failure to search for and find
product defects
4. BUT Π should read owners manual, warnings etc. (standard
of care to self)
ii. Heeding Presumption (as above)
iii. Assumption of Risk
1. Π sees risk created by Δ
2. Π acts without regard (same as Heeding presumption?)
V. Defamation
a. Factors (needs all)
i. False
1. Opinion? From Gertz “no such thing as a false idea” – for
public concern and media Δ, rhetorical hyperbole is
protected
i. Would a reasonable factfinder find that the statement is
making a statement of fact?
ii. Is the statement reasonably susceptible to be proven true or
false? (objectively verifiable)
iii. (not supreme court) full context of statement in entire
column
iv. (not supreme court) broader context where statement appears
ii. Statement
1. Slander (spoken)
a. Momentary
b. Few people reached
c. Must show special damages unless in Per-Se category
2. Libel
a. Permanent aspect
b. More people are reached
c. SPLIT:
i. Some J’s require showing of special damages UNLESS Libel Per
Se
ii. Others, Libel does not need showing of special damages
d. Libel per Quad
i. Libel when use of Inducement, Innuendo, or Colloquium
ii. Must show special damages, unless Libel Per Se category
3. Per-Se Exceptions:
a. Charge with a serious crime (one that would exclude the
Π from society)
b. Injure trade, business, profession
c. State that Π has a loathsome disease (one that is
contrived from a reputation-damaging activity)
d. Chastity – sexual “loose-morals” – immorality (impute AIDS?)
iii. Defamatory
1. Can words have a defamatory meaning?
a. Look to fair and natural meaning given by reasonable person
of ordinary intelligence
i. Internal context: look to publication as a whole
ii. External context: if words alone are not defamatory
1. Inducement – use external facts to show how it is demafatory
2. Innuendo – Π alleges a meaning that flows from the
statement and facts together, not a fact, only an assertion that
those who knew the statement knew the meaning
b. SPLIT: If 2 possible meanings,
i. Goes to jury
ii. Not defamatory
2. Is the meaning actually defamatory?
a. Split:
i. A Right-Thinking individual would think that it is
defamatory, then defame.
ii. Any group even wrong-thinking would lower the reputation of
the Π, then defame.
b. Right thinking = substantial and respectable minority (eyes
of those who understand)
iv. Publication
1. may be negligently made
a. does not question speakers intent  Strict Liability
b. Except: for disseminators of information (newsstands,
bookstores) UNLESS they knew (had reason to know) that statement
was defamatory
2. at least one third party who understands defamatory thrust
a. speaker must be intentional or negligent (not just mistaken)
b. Unexpected third party overhearing a conversation is not
actionable
3. Watch for language (must understand defamatory remark)
v. Of and concerning Π
1. Large Group:
a. If cannot determine of and concerning Π, no defamatory
b. how Distinguishable are the individuals in the group?
i. Prominent individuals
ii. Notoriety, recognizable
2. Π may use COLLOQUIUM – though not specifically named,
Π may show that he was the one defamed in the group
vi. Causes injury
vii. Constitutional Grid (For Libel Only)
1. Times standard
a. Π must show that statement is false
b. Level of proof: clear and convincing evidence
c. Actual Malice must be shown to collect
d. Damages only if actual malice is present – if actual malice,
damages are presumed, may have punitives
2. PO, PF
a. Three-legged Stool (policy)
i. Discussion of matters of public importance must not be
inhibited
ii. Self help is available to these Π’s
iii. Π assumed the risk by voluntarily subjecting selves to
light
b. NY Times 1st amendment policy
i. Public Concern – interests of public outweigh interest of
public official collecting for defamation
ii. Interest in free flow of information
iii. No chilling effect of media giving information
iv. Media needed for dissipation of information
c. Defenses
i. Consent – consent to be defamed by conduct or statement
1. Π must understand what he consents to
2. Π must understand scope of consent
ii. Truth – if true statement, no defamation!
1. Δ must prove sting of charge, not literal truth (for a
defense)
2. Headlines – alone must contain fair index of truth
3. Expungement – if crime is expunged (acquitted) actionable?
Split (statute may govern)
iii. Privilege – not defense to suit, merely allowance to make
statement
1. Absolute Immunity
a. Legislators in capacity
b. Police officers in statements of judicial proceeding
c. Judges
d. High executive officials
e. SPLIT: Litigants to Civil Complaints (cannot defame self)
f. Broadcast Media when required to grant candidates access to
airways
2. Qualified Immunity
a. Common Interest
i. limited to people with an actual interest, normally a public
interest topic
ii. Where both parties have a common interest, flow if
information should not be impeded UNLESS MALICE
1. Common-law Malice – ill will toward Π
a. Also shown by over-publication
2. Constitutional – knowledge that statement is false, or
reckless disregard as to whether or not it is false
iii. Examples:
1. credit reports
2. public references
3. public interest – fairly narrow
b. Fair Comment
i. May make false statement as long as based on true privileged
facts
ii. SPLIT: As to whether facts need to be both honestly or
reasonably believed
c. Fair and Accurate Report – Privileged:
i. Publication of defamatory in report of
1. official action or proceeding in a
2. meeting open to the public
3. deals with matter of public concern IF:
ii. Accurate AND
iii. Complete (or fair abridgement)
iv. Retraction – can reduce damages if retracted – must be a
newspaper – check statute
#Post#: 77--------------------------------------------------
Re: Torts 2 Outline
By: Ashantier Date: February 3, 2015, 3:10 am
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It's really great what you post up that I understood more
easily.
#Post#: 116--------------------------------------------------
Re: Torts 2 Outline
By: Sinnongyu Date: March 9, 2018, 12:45 am
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I was probably shocked, but it was a good thing.
#Post#: 118--------------------------------------------------
Re: Torts 2 Outline
By: Muyanato Date: April 19, 2018, 9:43 pm
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This information is very helpful to me.
#Post#: 122--------------------------------------------------
Re: Torts 2 Outline
By: Sasrigran Date: May 13, 2018, 11:32 pm
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I have been waiting for this update for a long time.
#Post#: 125--------------------------------------------------
Re: Torts 2 Outline
By: Yodanato Date: May 14, 2018, 1:48 am
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I believe that this information will make many people know and
understand more.
#Post#: 147--------------------------------------------------
Re: Torts 2 Outline
By: Coconut Date: January 16, 2019, 2:53 am
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Is useful information for everyone
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