Students: The following outline is provided to illustrate how a law outline is structured and how one publisher outlined

Tort law. If any outline conflicts with our text or lectures, disregard the outline, as it may use a different perspective or interpretation of law. Enjoy !lan "ec#man

Barbri Torts Outline

Intentional Torts !$ "asic Elements %$ !ct: must be volitional &$ Intent: may be specific '( intended to cause specific conse)uences$ or general '( *+S,-$. Transferred intent. Everyone is capable of it 'including #ids, mentally incompetent, drun# Incapacity not a defense$ 'a$ Scenarios '.$: %$ when ( intends to commit a tort against ! but commit a different tort against " &$ when ( commits the same tort ( intended but against a different person .$ when ( commits a different tort against a different person. 'b$ !pplicability: "attery, !ssault, /alse Imprisonment, Trespass '0and1chattels$ .$ ,ausation: (2s conduct must have been a substantial factor in bringing about the harm "$ "attery Elements %$ 3armful or offensive contact: 'a$ (efined by reasonable person. 4ffensive contact 'if it would be unpermitted by a person of normal sensitivity. 5o ta#ing account extreme sensitivity$. E.g., tapping on shoulder v guy stro#ing hair coming onto girl 'b$ 6ay be direct 'stri#ing 7$ or indirect 'setting a trap$ 'i$ 54 need for it damages to happen instantaneously. ( can set it in motion. E.g., poison 72s sandwich. 7 becomes ill . hrs later. 'c$ %

5ot offensive if consented to. ,onsent implied for ordinary contacts of everyday life 'e.g., bumping into in crowds$ &$ To 72s person : includes anything connected to the 7 'e.g., if 7 driving car, the windshield$. E.g., 8oman2s horse slapped while woman riding. .$ ( intended 'specific1general$ 9$ ,ausation ,$ !ssault %$ ! volitional act by ( : creating reasonable apprehension in the 7 'a$ (efinition apprehension: #nowledge 'not fear$. E.g., Scrawny (avid threatens big ;oliath. 8rong answer < ;oliath isn2t placed in reasonable apprehension. 'b$ (octrine of apparent ability: ( must merely have apparent abilty to commit battery 'If ( loo#s li#e he can : 7 thin#s he can$. E.g., *unloaded gun- 7 thin#s is loaded. &$ 4f immediate harmful or offensive contact to 72s person ' anything connected w1$ 'a$ 8ords alone not sufficient to create immediacy unless coupled w1conduct 'conduct may be slight: sha#ing fist$. "ut may negate reasonableness of 72s apprehension '*If I wasn2t your friend, I2d #ill u-$ 'b$ 8ords that promise action in future insufficient 'E.g., 8ait till . 76. I2ll beat you$ .$ Intent 'general1specific$ = 9$ ,ausation ($

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/alse Imprisonment %$ !n act 4> omission by ( that causes a person of reasonable sensitivity to be confined or retrained 7 'a$ Sufficient acts to restrain are: physical barriers, physical force1threats of, invalid use of authority = failure to release. Insufficient acts include moral pressure = future threats. E.g., (oor wide open but ( says, *If you leave I2ll #ill your son I #idnapped- 'reasonable$ v *If you leave, I2ll blow up ?upiter.- & 'b$ 4missions may be acts of restraint if ( has a pre@existing duty to help 7 move about 'E.g., flight crew not giving wheelchair$ 'c$ (uration of restraint1confinement irrelevant 'd$ (uration of restraint1confinement irrelevant &$ To a bounded area : where freedom of movement limited in all directions : 5o reasonable means of escape : #nown to 71reasonably discovered 'a$ 5o re)uirement 7 be constrained by physical boundary: 6ay be constrained by threat 'b$ Anreasonable to ma#e 7 climb through rat hole1only way of escape is Bsecret passageway2 .$ 7 must #now of confinement 4> be harmed by it 'E.g., >oommate loc#s other roomie2s door but roomie sleeping. 5o c1a. vs >oommate loc#s roomie2s door = roomie can2t get out to ta#e pill at, dies c1a$ 9$ Intent C$ ,ausation E$ IIE( %$ Extreme and outrageous conduct by ( 'transcends all bounds of decency$ 'a$ .

6ere insults don2t )ualify as outrageous @ but *outrageous to exploit 72s #nown sensitivities- < esp in *fragile- class of ppl < elderly, pregnant, #ids = ( #nows or ( common carrier1inn #eeper$. E.g, insults law student v #nowingly targets #id 'b$ ,onduct not normally extreme = outrageous may become so if %$ continuous 'DIS! < . !6$ &$ ( #nowingly directs it toward a certain type of 7 '#ids, elderly, pregnant, *sensitivities-$ = .$ if committed by certain type of ( 'common carriers1inn #eepers liable for even gross insults$ 'c$ (on2t ta#e into account extreme sensitivities 'except if ( #nows: adds to outrgaeousness$. E.g., ( puts fa#e sna#e on co@wor#er2s chair. ,owor#er has huge phobia = has heart attac#. 5o c1a unless ( #new about co@wor#er2s phobia. &$ ( committed intentionally or rec#lessly 'substantial disregard as to the effect of conduct$ .$ ,ausation 'a$ "ystander recovery if shows: ( intentionally caused physical harm to . rd person = 7 suffered emotional distress as a result. & ways to recover: %$ either show p1f IIE( or show %$ were present when injury occurred &$ were a close relative 'not fiancEe$ = .$ ( #new 7 was present = close relative 'b$ Tip : IIE( is *fallbac#- tort. ,hoose another answer if can. 9$ (amages: Severe emotional distress, not annoyance. no re) for observable physical symptoms. /$ Trespass to 0and %$ 7otential 7s: anyone in actual1constructive possession 'including lessees$ &$ Intent to physically invade 72s property: 'a$ no re)uirement ( #now land belongs to another .$ 7hysical invasion of 72s real property: 9

'a$ 7hysical invasion may be by a person1object '#id *s#ipping stones-, even if motivated by charitable impulses < watering shrubs = decide to water neighbor2s. 8ater falling is trespass. If intangible: nuisance claim 'e.g., sight, sound = smell$. 'b$ >eal property includes reaosnbale airspace = subterranean space 'E.g., (elta o# v C ft above jet$ 9$ ,ausation C$ Intent: ;$ Trespass to ,hattel . %$ !n act by ( that interferes w172s right of possession in a chattel 'a$ Either intermeddling or dispossessing < #eying someone2s car &$ Intent to do about the act that caused the interference .$ ,ausation 9$ (amages 'a$ >ecovery of actual damages from harm to chattel or loss of use 'if dispossession, damages based on rental value$ 3$ ,onversion < 6ore Serious Trespass to ,hattel %$ Same potential 7s as w1trespass to chattel &$ !n act

by ( that so seriously interferes w172s right of possession as to warrant the ( to pay the chattel2s full value < totaling someone2s car. *Fou brea#, steal, substantially change < you pay.- 'a$ E.g., wrongful ac)uisition 'theft$, wrongful transfer, wrongful detention, substantially changing, severely damaging or misusing 'b$ The longer the detention = the more extensive the use the more li#ely it2s conversion = not mere trespass to chattel 'c$ 4nly tangible personal property = intangibles reduced to physical form 'promissory notes$ subject to conversion .$ Intent to do about the act that caused the interference 9$ ,ausation C$ (amages : fair mar#et value of chattel at time of conversion 'e.g., forced sale of chattel$ 4> recover chattel 'replevin$ I$ (efenses to Intentional Torts %$ 72s Dalid ,onsent: 'a$ Dalid consent: 7 can2t consent to a criminal act : 7 must have capacity to consent 'not drun#, very young #id, or dev disabled$. Tip : Everyone capable of intent but not consent to tort$ 'i$ +ids = consent: may consent to age appropriate activities but not activities that would normally re)uire adult j2ment 'e.g., sex$ 'ii$ 3ow consent may be given: '%$ Express consent: Spo#en1written words that grant ( permission to behave in what would otherwise be tortious manner. ;eneral rule ( not liable. Exceptions '.$: %$ ,onsent is result of 72s mista#e : ( #new = too# advantage of it &$ ,onsent was induced by fraud : goes to an ESSE5TI!0, 545@,400!TE>!0 matter .$ G

,onsent was obtained by duress, unless duress was only future threats of harm1future economic deprivation. a. E.g., 4ne night stand. 4ne partner gives the other ST(. ,1a. 5o consent to ST( bc w1holding material information is fraud = nullifies consent. '&$ Implied consent may be a defense: a. !pparent consent: where a reasonable person would infer 72s consent from custom, usage or (2s objective conduct 'E.g., consent to what2s customary in sports even if violates game2s rules < hoc#eyH ring bell not trespass bc implied consent by maintaining front wal# w1o gateH date lights candles etc < reasonable to infer consent to #iss$ b. ,onsent implied by law: when action necessary to save a person2s life1some important property interest 9 'b$ ( liable for exceeding scope of consent 'E.g., invite friend to living room. /riend po#es around in attic. E.g., 7 consents to heart surgery = (octor also includes nose job. "attery. Exceeds scope$ &$ Self@(efense 4f 4thers = property 'a$ 4nly applies to torts being committed1about to be committed. 5ot to torts already committed 'E.g., grab someone2s hand to stop them before they slap you v next day, punching them$ 'b$ ;eneral rule for (efense of Self = (efense of 4thers: 'i$ ! person may use such force as is reasonably necessary to protect herself or another against injury if she reasonably believes that she or another is being or is about to be attac#ed. 'ii$ 5o duty to retreat for non@deadly force. (uty to retreat for deadly force if can be done safely unless actor in home 'iii$ >easonable mista#e as to existence of danger permitted 'c$ (efense of 7roperty 'i$ ;eneral >ule: >easonable force may be used to defend lawfully possessed property so long as %$ a timely re)uest to desist1leave is first made unless it

would be futile1dangerous = &$ deadly force is not permitted in the absence of serious threat of bodily harm 'e.g., also indirectly, traps$ 'ii$ >easonable mista#e: permitted as to whether intrusion has occurred1re)uest to desist re)uired "AT 54T as to whether entrant has a privilege. 7rivilege supersedes property rights. 'iii$ >ecapturing chattels '%$ 54 mista#e as to (2s right to recapture 4> to enter another2s land permitted 'Exception: shop@#eeper2s privilege: may detain for a reasonable period of time individuals she reasonably believes are in possession of shoplifted goods$. 6ista#e permitted '&$ /orce in hot pursuit permitted if property wrongfully ta#en = may enter on the land of another at a reasonable time1manner after first ma#ing demand. 5o force against . rd persons to recapture '.$ If another2s possession began lawfully, only peaceful means available to recover chattel. '9$ If chattel on land of innocent party : landowner given notice: chattel owner may enter on innocent party2s land but liable for actual damage entry causes 'C$ If chattel on another2s land through chattel owners fault: no privilege to enter on the land. .$ 7rivilege of !rrest: permits entry onto another2s land to effect the arrest 'a$ /elony !rrest by a 7olice 4fficer: 'i$ !rrest is privileged if: %$ the officer reasonably believes that a felony has been convicted : the person he arrested has committed it. 'reasonable mista#e is a defense$ 'ii$ !mount of force allowed: The degree of force reasonably necessary to ma#e the arrestH deadly force only when suspect poses a threat of serious harm 'b$ /elony !rrest by 7rivate ,itiJen 'i$ !rrest is privileged if: %$ The felony I5 /!,T must have been committed = &$ the citiJen must reasonably believe the person he arrests has committed it. 5o

defense of mista#e re whether the felony was committed but defense as to identity of the arrested 'ii$ !mount of force: Same as w1with felony arrest by police officer 'c$ 6isdemeanor !rrests: %$ must be for a breach of peace = &$ action must ta#e place in front of (. !mount of force: (egree of force reasonably necessary to ma#e arrest but 5EDE> deadly force 9$ (iscipline of child using reasonable force by parent1teacher C$ 5ecessity: (efense 450F to property torts: trespass to land, chattels, or conversion. C 'a$ >ule: ! person may interfere w1another2s real1personal property when it2s reasonably = apparently necessary to avoid harm substantially more serious than the interference would cause. 'b$ & types of necessity: private = public 'i$ 7rivate necessity: ( invades 72s property in an emergency not of his own ma#ing to protect interests of his own. ( has *right of sanctuary- < right to remain on 72s land so long as ongoing emergency. 5o liability for nominal or punitive damages but for actual damages. 'E.g., ( hi#es in woods = sees bull. Trespasses on 7ete2s land. 7ete #ic#s him off. (ies. 7ete liable$ 'ii$ 7ublic necessity: ( invades 72s property in an emergency not of his own ma#ing to protect the community as a whole1significant group of ppl. !bsolute defense. 5o re) to pay for damages 'E.g., (og about to attac# #ids. Fou #ill it. ,onversion of personal prop. 5o liability. 7ublic necessity$ II 3arm to Economic = (ignitary Interests !$ (efamation '>eputation is economic asset$ %$ Luestion %: (oes the statement involve a matter of public concern1statement about a public figureM 'a$ If Fes 72s p1f case: 'i$ ( must ma#e a (efamatory statement : allegation of fact that reflects negatively on 72s character trait = tending to adversely affect one2s reputation. 'E.g., common traits < honesty: embeJJled, N

cheated on taxesH loyalty < falsified reportsH courage < physically afraidH sex morality < promiscuous$H competence 'education, job etc$ '%$ If statement of opinion, actionable only if based on specific facts : express allegation 5ame calling not enough '&$ If not defamatory on its face: 7 may plead additional facts to establish defamatory meaning by innuendo or inducement '.$ 7 must be a living person. ,orporations, partnerships etc may be defamed 'ii$ 4f or concerning the 7: a reasonable person would understand the defamatory language referred to 7 '%$ If statement doesn2t refer to 7 on its face, 7 may plead *collo)uium- < extrinsic E. '&$ If defamatory statement refers to all members : small group, ea member may establish the *of or concerning- element by alleging he is a group member '.$ 6ay not do this if 7 is a member of a large group '9$ If statement refers to some members of small group: 7 must show a reasonable person would view statement as referring to 7 'iii$ 7ublication by ( to a third person: ( intentionally 4> negligently communicated it to a . rd person 'E.g., ( intends to send a letter to 7 accusing him of embeJJling but mista#enly misaddresses it. ,1!$ '%$ Each repetition is a separate publication. EO,E7TI45: magaJines, newspapers etc < all copies treated as a *single publication- '&$ Tip: no liability if defamatory statement said to ( directly 'E.g., 7roff tells student he has syphilis even though factual allegation reflecting negatively on sex morality not defamation$ 'iv$ (amage to 72s reputation '%$ If libel: written1printed publication1in permanent form: general damages presumed = 7 need not prove special damages 'i.e., pecuniary loss$ G '&$ %P

If slander 'spo#en$: 7 must prove special damage 'emotional distress not enough < 5EE( economic harm$, unless statement is slander per se < then damages presumed, li#e libel '9$: a. adversely reflects on one2s conduct in business1profession 'E.g., 7roff no law school = forged transcripts. !dversely reflects on competence = honesty. (amages presumed$ b. woman is unchaste 'sexism$ c. one has a loathsome disease < &: venereal disease or leprosy d. one is guilty of a crime involving moral turpitude '.$ (istinguishing bw slander = libel: a. If original defamation libel any repetition, even oral libel. b. 8ritten repetition of slander is libel. c. >adio = TD programs treated as libels if sufficiently %$ permanent &$ premeditated = .$ broadly enough disseminated 'v$ /alsity of (efamatory language '%$ 7 must show statement is false 'if true: 7 may have cause for IIE( or invasion of privacy$ 'vi$ /ault on the part of (: '%$ If !ctual malice '#nowledge or rec#less disregard as to truth or falsity$ damages for libel or slander per se are presumed. 'b$ If no 7 need not prove malice 'i$ If 7 is a private person w1matter of public concern 'what2s not public concern: if someone embeJJled from company, cheated on taxes, has venereal disease. %%

"ut matters of public concern: whether mayor ta#es #ic#bac#s, popular athletes use steroids, army lies about casualities$ '%$ 7 must prove ( was negligent as to statement2s truth or falsity '&$ (amages: only for proved actual injury "AT if 7 proves actual malice, presumed = punitive damages available 'ii$ If 7 is a private person w1matter of private concern: '%$ 5o re)uirement 7 prove fault 'negligence or otherwise$ '&$ 7resumed damages for libel or slander per se under ,0 : punitive if shows malice 'c$ (efenses to (efamation: 'i$ ,onsent: ,omplete defense 'same rules as w1intl torts$ 'ii$ Truth of (2s defamatory language: heavily tested 'iii$ 7rivileges '6ost heavily tested$ '%$ !bsolute 7rivilege: based on the spea#er2s status, ,an never be lost: >emar#s made during judicial proceedings, legislators in the 3ouse, executives in course of duties, between spouses, compelled broadcasts, 0s1judges in proceeding, parties in legal proceeding '&$ Lualified 7rivilege may be lost: 5ot based on spea#er2s status. !rises where there is public interest in promoting candor. E.g., letters of reference, credit reporting, statements for police investigations. a. ;rounds subject to loss: %$ if statement not w1in scope of privilege 'E.g., reference letter but 7roff says student has leprosy$ or &$ spea#er acted w1malice 'intentionally, rec#less w1falsity < need reasonable belief in truth$ 'iv$ 6itigating /actors: not defenses but relevant to damages 'retraction, malice etc$ "$ Invasion of >ight to 7rivacy I %$ 0imitations on the right of privacy: (oes not survive 72s death1extend to family : 5! corp &$ !ppropriation of 72s 7icture15ame %&

: (2s unauthoriJed use of 72s name1picture for commercial advantage. 54 need for ( to ma#e a profit. EO,E7TI45: newsworthiness 'Sports Illust puts Tiger 8oods on cover: o#$ .$ Intrusion upon 72s private affairs1seclusion : (2s prying1intruding on one2s private affairs1seclusion : is objectionable to a reasonable person : 7 has a reasonable expectation of privacy. E.g., photos ta#en in public places don2t )ualify. (oes not re)uire trespass to land 'E.g., telescope$ 9$ 7ublication of /acts 7lacing 7 in a /alse 0ight : The widespread disseminaton 'publicity$ of a material falsehood about the 7 : that is objectionable to a reasonable person : even if ( believed it to be true 'a$ If matter is of public interest: 7 must prove ( acted w1malice 'b$ 6ay overlap w1defamation 'consider & torts together$ but while defamation always negative : economic damages, false light may be positive traits : dignatory damages 'ppl shunned me$ C$ 7ublic (isclosure of 7rivate /acts about 7: 7ublic disclosure of private information about 7 : objectionable to a reasonable person : (2s acts caused the invasion 'a$ even if the statement is true, Truth no defense 'b$ 7ossible /irst !mendment bar if issue of legitimate public interest1newsworthy: E.g., not a tort to publish 4bama2s medical charts but tort to do same to private citiJens. "roadly interpret 'c$ 6atters in public records not *private- 'i$ E.g., *(ual life patterns.- 3eavily tested. 7 does something in % sphere he doesn2t want other sphere to #now about. 7 *out- w1family = friends but not at wor#. Saturday he goes to gay rally = co@wor#er sees him = publicly discloses he2s gay. "ut no ,1! bc not a private factH conservative mayor found patroniJing nudist camp. 5ot private fact. G$ (efenses: ,onsent 'similar to defamation $ "AT 54T T>AT3. ,$ 6isrepresentation %$ %.

Intentional 6isrepresentation 1(eceit1/raud: Elements 'a$ (2s 6isrepresentation : of a material fact 'i$ 5o duty to disclose = opinion not actionable unless rendered by someone w1superior s#ill, selling property = li#ely 7 won2t uncover material information, or fiduciary relationship 'ii$ Silence not enough to constitute misrepresentation 'except if ( spea#s = utterance deceives 7 < must ta#e affirmative steps$. !ctive concealment actionable 'b$ 6ade w1scienter: ( #new1believed the statement was false1groundless when made it 'c$ ( intended to induce 7 to act1refrain from acting in reliance upon (2s misrepresentation 'd$ ,ausation: 7 actually relied on (2s misrepresentation 'e$ 72s reliance was justifiable: 'i$ >eliance not justified as to opinion1future events, but justified as to fact, statements of law 'if superior #nowledge, law enforcement$. 'f$ (amages: 7 must suffer actual pecuniary loss 'g$ 54 (efenses &$ 5egligent 6isrepresentation 'a$ (2s misrepresents : a material fact 'b$ I5 a business1professional capacity 'c$ "reaching duty towards the particular 7 @ was reliance by the particular 7 contemplated 'e.g, preparing a stoc# report for client, don2t expect it to be used by client2s brother$ K 'd$ ,ausation '7 actually relied$ 'e$ 72s reliance was ?ustified 'f$ %9

(amages: limited to misreps made in commercial1business setting ($ 8rongful Institution of 0egal 7roceedings %$ 6alicious 7rosecution @ elements 'a$ Institution of criminal proceedings against 7 'b$ termination in 72s favor 'c$ absence of probable cause 'd$ improper purpose 'e$ (amages 'prosecutor immune from liability$ &$ 8rongful ,ivil 7roceedings 'same elements for malicious prosecution$ .$ !buse of 7rocess: %$ wrongful use of process for ulterior motive = &$ definite act or threat of process against 7 to accomplish ulterior motive E$ Interference with "usiness >elations @ elements %$ Dalid contractual relationship1business expectancy bw 7 = a . rd party &$ ( has #nowledge of the relationship1business expectancy .$ (2s intentional interference induces a breach1termination of relationship1expectancy 9$ (amages C$ 7rivileges: where ( is properly attempting to obtain business1protect interests 'esp if 7 has no existing +$ III 5egligence !$ %C

;eneral 71/ ,ase for 5egligence %$ ( owes a duty to : conform to a specific standard of conduct so as to not pose an unreasonable ris# of harm to foreseeable 7s &$ ( breached that duty .$ (2s breach is the actual = proximate cause of 72s injury 9$ 7 suffered damages C$ (efensesM "$ Element %: To 8hom is a (uty 4wed 'Specific Standards of ,are = >easonably /oreseeable 7s$ %$ Examples of >easonably foreseeable 7s: %$ rescuers where ( negligent placed herself1. rd person in peril. 5o duty of care owed to unforseeable 7s who are outside the Jone of danger 'always lose: 6s. 7alsgraf 4pposite side of platform$. &$ (uty of care owed to: 'a$ ! viable fetus for failure to diagnose1perform surgery etc. "ut not for wrongful life 'i$ 7s may recover damages for wrongful birth1pregnancy : additional medical expenses : pain = suffering but not ordinary child rearing expenses 'b$ Intended beneficiaries of economic transactions: . rd party for whose economic1legal benefit business transaction was made 'e.g., beneficiary to a will$ .$ Standards of ,are : 'a$

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;eneral >ule1plain vanilla: (2s conduct must be that of a reasonable person : account for same physical characteristics : under similar circumstances 'don2t account for drun#, mentally ill, dev disabled < objective stnd$ N 'b$ If ( has superior #nowledge1s#ill : must act as a >77 w1that s#ill or #nowledge 'E.g., race car driver$ 'c$ If ( has particulariJed #nowledge even if ( is stupid must act as a >77 w1that additional #nowledge 'E.g., ( is stupid but #nows an intersection is particularly dangerous$ 'd$ 7rofessionals : must possess the #nowledge = s#ill of a member of the average member of that profession1occupation in good standing : in similar communities. '6edical specialists held to a national stnds. (octors have duty to disclose tx ris#s$.,ustom of proff sets stnd of care. 'i$ Specialists: owe a duty of care to avrg to that of avrg member in similar community of li#e specialists 'e$ ,hildren: Subjective stnd. 3eld to a stnd of a child 'age 9@%K$ of li#e age, education, intelligence = experience under similar circumstances. 'child under 9 lac#s capacity to be negligent = owe no duty of care$. +ids engaged in adult activities may have to conform to adult stnd. Subjective stnd. 7ro ( bias 'if #id has no experience, education or intelligence < really low. "illy tricycle$. 'f$ ,ommon ,arriers1Inn#epers : very high degree of care. 7 must be a passenger1guest. 'g$ !utomobile (river to ;uest: duty of ordinary care 'h$ Emergency situations: ( must act as a reasonable person under the same emergency conditions 'but if ( created emergency, emergency won2t be considered$ 'i$ 4wners14ccupiers of 0and: Stnd of ,are (epends on 72s status as trespasser, licensee or invitee. 7 called *entrant, victim or 7.- ( is possessor but not always owner 'e.g., lessee$. Stps: %$ ,onsider how entrant got hurt = &$ Status of entrant 'i$ If 7 is an A5(IS,4DE>E( Trespasser

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: 5o duty of care owed bc e.g., of unforeseeable victim for dangerous conditions 'static$ or activities 'ii$ If Trespasser is +nown1>easonably Should have been anticipated : E.g., ppl have routinely used a portion of your land as a shortcut. '%$ !ctivities: >77 under similar circumstances. E.g., driving tractor. See hi#er. *(iscovered.- >77 not run over him '&$ (angerous ,onditions: 4we a duty to protect #nown1anticipated trespasser from : artificial : highly dangerous 'death, serious bodily harm, not slightly < twisted an#le$ : concealed conditions : #nown to possessor but not to trespasser. *duty to protect from man@made death traps- a. 5o duty owed for natural conditions 'e.g., roc# slides, tree limbs, avalanches, rapids$. ,ondition must not be apparent. ( has no duty to inspect property b. E.g., ( owns ranch. 8ooden bridge. 0oo#s safe. "ut ( #nows it2s not < can fall on canyon below. ( sees a hi#er. +nown trespasser. (uty to protect. '.$ If 7 is a child: !ttractive 5uisance (octrine. *+I(Ea. ;eneral >ule: 4ccupier10and owner has a duty to exercise reasonable care to avoid a reasonably foreseeable ris# of harm to #ids caused by artificial conditions on the property if '9$: i. There is a dangerous condition on the land that the owner is1should be aware of ii. The owner #nows1should #now #ids fre)uent he vicinity of the condition '*#id magnet-$ iii. The condition is li#ely to cause injury 'bc of #ids2 inability to appreciate ris#. & yr v %9 yr w1pool next doorH doesn2t matter if #id read the warning$ iv. The expense of remedying situation is slight compared w1magnitude of ris# IIII Tip: child does not have to be attracted onto the land %P 'iii$ (uty owed to licensee 'e.g., social guest$: one who is permitted to come onto property but who does not confer a commercial benefit '%$

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!rtificial15atural ,onditions: 7ossessor must warn1ma#e safe dangerous condition 'serious bodily harm1death$ that2s concealed 'not readily apparent$ : one that possessor has prior #nowledge. 5o duty to repair1inspect. *all #nown traps on the land- 'not just man <made$. E.g., buy a rug that slips. (uty to warn guest. '&$ !ctive 4perations: duty of >77 under similar circumstances 'pour coffee example$ 'iv$ (uty owed to invitee: '%$ (efinition: Either come on to the land for purpose of conferring a commercial benefit on he land possessor or or members of public for a purpose for which land is held open to public 'E.g., go to wor#, to hospital to visit friend, airport to pic# someone up$ '&$ !rtificial15atural ,onditions: 7ossessor must protect invitee from concealed conditions : the possessor #nows about1would have discovered through reasonable inspection. (uty to warn about or ma#e safe. 7rotect from all *reasonably #nowable traps on the land- a. 5o duty to warn1ma#e safe open = obvious conditions 'E.g., chair in theater. Fellow tape$ b. >easonable inspection: sufficient thoroughness = fre)uency to comport w1reasonable stnd '.$ !ctive operations: duty of >77 under similar circumstances 'v$ 4ther situations: '%$ /irefighters = police officers: treated as licensees w1implied permission to enter. 5ever recover for injuries related to inherent ris#s of job. E.g., don2t recover for ( negligently leaving '&$ 0andowner who permits general public to use land for recreational purposes w1o charging: not liable unless willfully = maliciously '.$ (uties of 0essor = 0essee of >ealty: 0essee2s general duty to maintain premises. 0essor must warn of existing defects he #nows1reasonably should #now of : lessee not li#ely to discover on reasonable inspection. a. If lessor covenants to repair lessor liable for unreasonably dangerous conditions b. %N

If lessor volunteers to repair = negligently repairs lessor liable i. Tip : If guest of tenant is injured, tenant = landlord may be liable '9$ (uties of vendor of reality: 6ust disclose to vendee concealed, unreasonably dangerous conditions vendor #nows1reasonably should #now vendee not li#ely to discover on reasonable inspection 'j$ Statutory Standard of ,are: 6ay replace general ,0 duty of care if: i$ statute provides for criminal penalty ii$ statute clearly defines standard of conduct iii$ 7 w1in protected class = iv$ statute designed to prevent the type of harm suffered by 7. If 7 succeeds statutory violation is negligence per se 'duty = breach proved$ 'i$ & exceptions where violation of statute may be excused = not negligence per se: '%$ Diolation may be excused if compliance would cause more danger than would violation 4> where compliance beyond (2s control 'E.g., ( driving on curvy road. Sign says Bno passing.2 7asses to avoid hitting child = 7 gets hit. 7 member of protected class = accident meant to be protected but bc compliance more dangerous, no negligence per se$ '&$ If compliance would be impossible under the circumstances 'E.g., ( has heart attac# = can2t stop at red light$ 'ii$ 72s !ssumption of ris# not a defense if 7 is member of protected class contemplated by statute %% 'iii$ E.g., 8oman comes home = smo#es dope. 3ad left gas lea#ing from stove. Statute prohibits possession of dope. Explosion. "urns down upstairs apt. 5ot neg per se bc 7 not in protected class = statute not designed to prevent the type of harm suffered by 7. '#$ ;eneral >ule re !ffirmative (uties : one does not have a legal duty to act 'i$ "AT @ if ( voluntarily underta#es to act, ( must do so as >77 under similar circumstances. 'ii$ &P

;enerally no duty to rescue someone in peril '*4lympic swimmer can let baby drown-$ EO,E7T: '%$ If ( has undertoo# to rescue someone, ( must do so as >77 under similar circumstances a. Exception: States w1;ood Samaritan Statutes 'vary w1states$ may shield rescuers '&$ ( has a duty to assist someone he has negligently1innocently placed in peril. '.$ Special relationship bw parties: land possessor to invitee, contractual, family 'even if not limited by blood < mother@in@law$, 7arent@child, common@carriers, inn#eepers, shop@#eepers 'also have duty to prevent injury to guests by . rd parties$ '9$ (uty to control . rd persons: ;eneral rule < no duty. "ut if ( has actual ability : authority to control a persons2 actions = #nows1should #now person is li#ely to commit acts re)uiring exercise of control, ( has a duty 'C$ (uty to rescue reasonable. 5ever obligated to put own life in jeopardy 'l$ 5egligent Infliction of Emotional (istress: 72s p1f case 'i$ ( had a duty to act as a >771not cause emotional distress : 7 was a >/ 7 in Jone of physical danger 'E.g., *5ear miss,- crossing the street = missed by & feet$. 'ii$ "reach: ( breaches this duty by negligently causing a threat of physical impact that leads to emotional distress 4> causing severe emotional distress that by itself is li#ely to result in physical symptoms 'E.g., rash, not nightmares but constant tears o#$. >ationale: to rule out fraud 'iii$ ,ausation1(amages: (2s conduct must cause tangible physical injury 'e.g. miscarriage$ 'iv$ "ystander >ecovery 8hen !nother is 7hysically Injured: '%$ 5egligent ( causes a direct bodily trauma to a third person : which causes 7 to suffer emotional distress. 7 must show %$ she was closely related to . rd

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person &$ was physically present = .$ observed the injury contemporaneously '( didn2t have to #now, unli#e IIE( so discuss IIE( = 5IE( together$ ,$ Element &: "reach of (uty when (2s conduct falls below the re)uired stnd of care. 3ow 7 demonstrates breach ' Tip: !lways say *( acted unreasonably because-$ %$ (2s failure to comply w1custom or usage: but not dispositive bc ct may find entire industry acting negligently &$ ( violated an applicable statute .$ >es Ispa 0o)uitor: ' 3eavily Tested$@ !pplies when 7 lac#s information 'a$ Elements '.$: %$ The accident causing the injury is a type that would normally not occur unless someone was negligent 'probability statement < don2t need to rule out remote possibilities$ : &$ negligence is attributable to ( 'can be shown if 7 demonstrates the instrumentality causing the injury was in (2s exclusive control$. : .$ 7 was not negligent 'b$ Effect: 7 has made p1f case for (2s negligence. 7ermissible inference of negligence. 5o directed verdict for (, but won2t grant directed verdict for 7. 6ay grant (2s motion if 7 has failed to establish res ipsa : present other E. ($ Element .: ,ausation: 7 must demonstrate both actual cause 'cause in fact$ = proximate cause %$ /actual cause %& 'a$ "ut for test< The injury would not have occurred but for (2s act1omission ' Tip: use words Bbut for2$ 'b$ ?oint ,auses < &&

I/ &: (s @ Substantial /actor Test: 8here several causes bring about 72s injury : any one alone would have been sufficient to cause 72s injury : all (s2 conduct is an actual cause if it was a substantial factor in causing the injury : (s jointly liable . E.g, ! = " camping C mi from ea other. "oth coincidentally leave camp fires burning. /ire burns down Fosemite. "oth substantial factors = jointly liable$. 'c$ !lternative ,auses !pproach : 8here there are two acts : but only one causes the injury : it is not possible to ascertain which act caused the injury : the burden of proof shifts to the ( : each ( must show his negligence is 54T the actual cause of 72s injury. Summers v Tice 'E.g., 0ucy = Efle shot off guns at same time. 4nly % ( hit /red2s eye but can2t tell who. "oth jointly liable unless can show other ( committed the harm$ 'i$ Tip: ?oint causes v alternative causes: ?oint causes < only one act caused the injury. !lternative causes: & acts but not possible to tell which one &$ 7roximate10egal ,ause: 'Thin# fairness$ 'a$ ;eneral >ule: ( is liable for all harmful results that are the normal foreseeable incidents caused by (2s act 'b$ 0iability in (irect ,ause ,ases : In a direct cause case, where there is an uninterrupted chain of events from (2s negligent act to the 72s injury 'no intervening forces$, ( is liable for all foreseeable harmful results, regardless of unusual manner or timing A50ESS outcome is frea#ish = biJarre 'E.g, ( running red light = hits car carrying explosives. 8hole city burns$ 'c$ 0iability in Indirect ,ause ,ases : In an indirect cause case where a subse)uent intervening force combines w1(2s act to cause 72s injury: ( is liable for all foreseeable results caused by foreseeable intervening forces &.

'i$ (ependent Intervening forces almost always foreseeable: %$ subse)uent malpractice1med negligence but not rec#lessness foreseeable &$ rescuers2 negligence .$ defense of self1another1property 9$ subse)uent diseases caused by wea#ened condition '*egg shell 7- < ( liable for all damages assoc w1aggravation of existing condition, even if extent1severity of damages unforeseeable$ = G$ subse)uent accidents substantially caused by original injury < protection1reaction forces 'E.g., ( runs red light = crowded intersection. 7edestrian brea#s leg. 4ther peds panic = trip over his face. ( liable for leg = face$ 'ii$ Independent intervening forces not foreseeable as a natural response1reaction to (2s conduct: %$ . rd persons2 negligence, intentional torts = crimes &$ acts of ;od 'iii$ ( not liable for unforeseeable results caused by unforeseeable intervening forces bc intervening force is *superseding.- "rea#s the causal connection bw (2s initial negligent act = 72s ultimate injury E$ (amages: %$ Egg S#ull doctrine: If ( negligent, ( liable for all damages 7 suffers. E.g., cut 7 but 7 has hemophilia. &$ 7ersonal Injury damages .$ 7roperty (amages: reasonable cost of repair or if conversion, the fair mar#et value at time of accident 9$ 7unitive (amages: if (2s conduct was *wanton = willful, rec#less or malicious- C$ 5on@recoverable items: interest from date of damage in 7I case : attorney2s fees G$ 72s duty to ta#e reasonable steps to mitigate damages 'e.g, see# appropriate tx$ %. I$ ,ollateral Source >ule: (amages not reduced just bc 7 received benefits from other sources 'e.g., health insurance$ /$ (efenses to 5egligence '6"E: !ssume pure comparative negligence$ %$ &9

6inority 7ositions: 'a$ ,ontributory 5egligence: 8hen 72s own negligence contributes to her injuries, 72s right to recovery is completely barred. Is not a defense to (2s intentional torts. 'i$ 0ast ,lear ,hance Exception: ! 7 may recover despite her contributory negligence. The person w1the last clear chance to avoid an accident : who was able to avoid the accident : but who failed to do so is liable for negligence. '%$ If 7 is in *helpless peril- ( will be liable if #new1should have #nown of 72s predicament '&$ If 7 could have extricated herself had she been attentive, ( must actually have #nown of 72s predicament 'b$ Imputed ,ontributory 5egligence: ,ontributory negligence of a . rd party will be imputed to 7 where the relationship bw the third party = the 7 is such that the ct could find the 7 vicariously liable. E.g., master@servant, partner, joint venture. 5egligence 54T imputed bw spouses, parents = child, = car owner = driver 'c$ !ssumption of the >is#: 7 may be denied recovery if she assumed the ris# of damages caused by the (2s act in #nowing of the ris# : voluntarily proceeding in the face of the ris#. 5ot a defense for intentional torts. 'i$ 7 may expressly 'express agreement, disclaimer$ or impliedly assume the ris# 'where the ris# is one that an avrg person would reasonably appreciate$. 'ii$ 7 has 54T assumed the ris# if no available alternative or situation involves force, fraud or emergency 'iii$ 7ublic utilities = common carriers can2t limit liability by disclaimer 'iv$ 6embers of a class protected by statute not deemed to have assumed ris# &$ 6ajority: ,omparative 5egligence 'a$ 72s contributory negligence does not completely bar recovery but reduces available damages. 'i$

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6ajority of states: only permit 7 to recovery was e)ual to1less than (2s negligence but *pure- comparative states permit recovery no matter how great 72s contributory negligence 'b$ Anli#e contributory negligence = assumption of ris#, comparative negligence defense available to intentional torts, wanton or rec#less tortious conduct. 'c$ 5o 0ast clear chance doctrine 'd$ & #inds: 'i$ 7ure comparative fault: 7 always recovers so long as ( was negligent, even if 72s negligent Q (2s 'ii$ 6odified comparative regime: 7 only recovers if 72s negligent was not greater than (2s ID Strict 0iability: 0iability w1o /ault !$ Elements of 71/ ,ase: %$ !bsolute duty exists on the part of the ( to *ma#e safe- &$ ( breached this duty .$ (2s breach was an actual = proximate cause of 72s injury and 9$ (amage to 72s person1property "$ 0iability for !nimals %9 %$ If owner2s animals trespass onto another2s land: owner is S0 for reasonably foreseeable damage &$ S0 for 8ild !nimals: S0 to licensees = invitees for injuries caused by wild animals : provided injured person did nothing to bring about the injury. Even if utmost care ta#en .$ 54 S0 for (omestic !nimals: unless owner has #nowledge of the particular animal2s dangerous propensities ' Tip: may still be negligent on first bite, but not S0$ 9$

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5o S0 to trespassers except based on intl tort groups for injuries inflicted by vicious watchdogs. C$ (efenses for (: 'a$ ,ontributory negligence unavailable if 7 failed to realiJe danger1guard against it. 'b$ ,omparative negligence = assumption of ris# available. ,overs wanton, intl conduct. ,$ Altra haJardous1!bnormally (angerous !ctivities '5ot firewor#s$ %$ S0 for ultra haJardous activities if %$ the activity involves a ris# of serious harm to persons1property &$ the activity cannot be performed w1o ris# of serious harm no matter how much care is ta#en = .$ the activity is not commonly engaged in by the particular community. Some cts consider value of activity = appropriateness to location. &$ E.g, blasting, explosions, dynamite, blowing up, chemical1biological agents 'chlorine, sulfuric acid$, nuclear energy, radioactive. 5ot firewor#s .$ (efenses: 5ot contributory negligence. ,omparative neg = assumption of ris# available. D 7roducts 0iability: liability of a supplier of a defective product to someone injured 'Tips: Essay < use all theories. 6"E: answer according to theory but if no guidance, according to S0$ !$ C Theories !vailable to 7 to sue on: i$ intent ii$ negligence iii$ S0 iv$ implied warranties of merchantability or fitness for a particular purpose = v$ representation theories 'express warranty = misrepresentation$ "$ 71/ ,ase for 7roducts 0iability < for any theory %$ 7 must show %$ a defect = &$ existence of the defect when the product left the (2s control 'inferred if product moved through normal channels of distribution$ 'a$ Tip: &I

no re)uirement 7 be in privity w1(. !ny foreseeable ultimate user17, inc bystander may recover &$ 3ow 7 Shows a (efect 'a$ 6anufacturing (efect < If a product emerges from manufacturing different !5( more dangerous than products made properly. 7 must prove the product failed to perform as an ordinary consumer would expect '( must anticipate reasonable misuse$ 'b$ (esign (efect < 8hen all products of a line are the same : but all have dangerous propensities. 7 must show: ( could have designed the product to %$ ma#e it more safe &$ w1o seriously impacting its price or utility. 'E.g., crib slabs$. 'c$ Inade)uate 8arnings < 8hen a product is defective : because of a manufacturer2s failure to give ade)uate warnings1instructions : of dangers not reasonably apparent to users. 'i$ 8arning must be understandable to average consumer 'E.g., Spanish, blind, not buried in boo#s$ 'ii$ 7roduct may still be defective even w1ade)uate warnings. E.g., /lammable pajamas. Still defective even w1warnings. 'd$ 6iscellaneous: 'i$ 7roduct does not comply w1govt safety standard: establishes defectiveness 'but compliance w1govt safety standards is not conclusive that a product is not defective$ 'ii$ ( not liable for Bscientifically un#nowable2 ris#s @ dangers not foreseeable at time of mar#eting %C 'iii$ ( not liable for unavoidably unsafe products: if %$ danger is apparent = &$ no safer way to ma#e the product. E.g., #nives ,$ 0iability "ased on Intent: %$

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>ule: ( will be liable to anyone injured by an unsafe product if : ( intended the conse)uences1+S, conse)uences were li#ely to occur. '5ot common: but if intent, also consider battery$ &$ 8ho can sue: !ny injured 7. 5o re)uirement for privity .$ (amages: compensatory : punitive damages 'for intentional, wanton or rec#less conduct$ 9$ (efenses: same as in intl torts case ($ 0iability "ased on 5egligence: Same p1f case %$ duty &$ breach of duty .$ actual = proximate cause 9$ damages %$ (uty: duty of care to any foreseeable 7, which includes users, consumers = bystanders 'can sue$. 5o privity re)uirement. 'a$ 7otential (s: commercial supplies such as manufacturers, wholesalers = retailers &$ "reach of (uty shown by %$ (2s negligent conduct leading to the supplying of a defective product. 'a$ 5egligence stnd is same as in standard neg case. 7 can invo#e res ipsa lo)uitor. 'b$ (ifficult to hold retailers = wholesalers liable for negligence bc can satisfy duty by cursory inspection .$ ,ausation: !n intermediary2s 'e.g, retailer1wholesaler2s$ negligent failure to discover a defect does not supersede original manufacturer2s negligence A50ESS exceeds ordinary foreseeable negligence 9$ (amages recoverable: ,laim cannot be solely for economic loss. 6ust be physical injury1property damage C$ (efenses: same as in general neg action. (isclaimers ineffective E$ 0iability "ased on S0 %$ 71/ case: %$ strict duty owed by a commercial supplier of a product &$ breach of that duty .$ (2s breach is the actual = proximate cause of the 9$ damages 7 suffered &$

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(uty: to supply safe products. 'a$ 7 must show that the product reached 7 w1o *substantial alteration- 'b$ 7otential (s: any commercial supplier, commercial lessors 'E.g, rental car company, ,o leases computer offices$. "ut casual sellers not held S0 'c$ S0 does not extend to services 'even where product provided incident to services, e.g., blood during operation < no S0. 7ossible neg. E.g., 7 at 6orton2s = chair collapses. 6orton2s not S0$. 'd$ 7rivity not re)uired: users, consumers = bystanders can sue : any merchant in distribution chain may be S0 'E.g., 7 buys defective Toaster2s from 6acy2s. 6acy2s = ,uisine !rt may be S0$ .$ "reach of (uty: 'a$ ( has breached duty to supply safe products if : product is defective 'Supra < . types of defect$ : product2s defect ma#es the product unreasonably dangerous. ( must anticipate reasonable misuse 'E.g., 7 falls off defective chair. ( can2t claim chair was for sitting$. 'b$ >etailers held liable even if no opportunity to inspect 9$ (amages: 6ere economic loss alone insufficient. 5eed physical injury1property damage. C$ (efenses: 'a$ 6inority jxs: contributory negligence states, assumption of the ris# = unreasonable misuse 'b$ 6ajority: comparative negligence, unreasonable misuse /$ 0iability "ased on "reach of Implied 8arranties of 6erchantability = /itness 'in every sale$: %G %$ Implied 8arranty of 6erchantability: goods are of average acceptable )uality : generally fit for ordinary purpose for which goods are used &$ Implied 8arranty of fitness for a particular purpose

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: !rises when seller #nows1reasonably should #now the purpose for which the goods are re)uired : that the buyer is relying on seller2s s#ill = j2ment in selecting the goods. .$ 7otential (s: ,ts adopt a narrow version of horiJontal privity re): buyer, family, household = guests can sue for personal injuries 9$ "reach: failing to live up to standards. 7roof of (2s fault unnecessary C$ ,ausation G$ (amages: 7ersonal injury, property damages = purely economic loss are recoverable. I$ (efenses: include assumption of the ris# = contributory negligence. (isclaimers ineffective 'a$ A,,: /ailure to give notice of a breach is a defense ;$ 0iability "ased on (2s /ailure to 0ive up to its !ffirmative >epresentations '(uty = "reach$ %$ 7otential (s: any consumer, user or bystander. 'a$ If buyer sues: warranty must have been *part of the basis of the bargain- 'b$ If 7 not in privity 'e.g, bystander$: must show that someone relied on (2s representation 'c$ 8arranty extends to bailments = leases &$ (isclaimer effective 450F in unli#ely event it2s consistent w1warranty. ;enerally ineffective. .$ Seller will be liable for misrepresentation of facts concerning a product where %$ statement was a material fact concerning )uality1uses of goods 'not mere puffery$ = &$ seller intended to induce reliance by buyer = .$ there was justifiable reliance 'representation was a substantial factor in inducing the purchase$. >eliance need not be victim2s < no privity re) 9$ !ctual cause: shown by reliance. 7, C$

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(efenses: 5o assumption of the ris# if justifiable reliance. ,ontributory negligence 'unless ( committed intl misrep$ DI 5uisance: 7rivate v 7ublic 5uisance !$ 7rivate 5uisance %$ (efinition: ! substantial : unreasonable : interference w1another private individual2s : use or enjoyment of property : that he actually possesses : or to which he has a right of immediate possession &$ Substantial interference: must be offensive, inconvenient or annoying to average person. 5ot substantial if results merely from 72s hypersensitivity1specialiJed use of own property .$ Anreasonable: severity of inflicted injury must outweigh utility of (2s conduct. ',ts consider neighborhood, land values, existence of alternative courses of conduct open to ($. 9$ Anli#e trespass of land: where landowners2 exclusive possession interfered w1by physical invasion "$ 7ublic 5uisance: %$ (efinition: !n act that unreasonably interferes with : the health, safety or property rights of the community 'e.g., using a building for drugs$. &$ >ecovery for private person for public nuisance only if suffered uni)ue damages not suffered by public at large ,$ >emedies %$ Asually 7s awarded damages. %I &$ 7s may be awarded injunctive relief If damages unavailable or inade)uate. ',t will consider relative hardships to 7 = (. "ut ct won2t balance hardships if (2s conduct was willful1against an assertion of right by 7$ .$ !batement by Self help 'a$ 7rivate nuisance: self@help abatement available after notice to ( : (2s refusal to act. 4nly necessary force permitted 'b$ .&

7ublic nuisance: only public authority or private party who suffered some uni)ue damage can see# injunction or abatement by self@help ($ (efenses %$ 0egislative authority 'e.g., Joning ordinance$ is persuasive but not absolute defense &$ 5o actor is liable for all damage caused by concurrence of his acts w1others 'e.g., %P steel mills polluting a stream. !ctor only liable for his mill$ .$ ,ontributory negligence not a defense unless 72s case rests on negligence 9$ ,oming to a nuisance generally not a bar to 72s action unless came to nuisance for sole purpose of bringing a harassing lawsuit DII ;eneral ,onsiderations for all Tort ,ases !$ Dicarious 0iability ' Tip: 3E!DI0F Tested$ %$ (octrine of >espondeat Superior : ! master1employer is vicariously liable for non@intentional tortious acts committed by her servant1employee if the tortious acts occur w1in scope and course of employment relationship 'E.g., ;rocer commits battery on a cl. Dons not liable$ 'a$ !n EE ma#ing a minor deviation for own purposes 'in time, geography$ still acting w1in scope but not if *frolic- < substantial deviation in time1geography. 'b$ Exception to the >ule that E> not liable for intentional conduct by employees: i$ force authoriJed in employment 'e.g., bouncer$ ii$ friction generated by E> 'e.g, bill collector$ iii$ EE is furthering business of E> 'e.g, removing customers from premises bc rowdy$ &$ E>s may be liable in negligent entrustment: in negligently selecting1supervising EEs or Ind contractor .$ Independent ,ontractor Situations : The principal will not be held vicariously liable for tortious acts of her agent if the agent is an independent contractor. ' Tip: 3eavily Tested$ Exceptions: 'a$ ..

If the independent contractor is engaged in inherently dangerous activities 'e.g. excavating, blasting$ 'b$ If the duty is non@delegable bc of public policy concerns 'e.g., duty to use due care in building fence$ 'c$ 0and possessor vicariously liable if Independent ,ontractor hurts invitee 'E.g., EE of Independent contractor #noc#s over plant that hits you. Fou2re at mall. 6all vicariously laible$ 9$ 7artners = ?oint Dentures : Dicariously liable if committed in scope = course of partnership1venture C$ !utomobile 4wner for (river : ;eneral rule is that auto owner not vicariously liable for tortious conduct of another person driving the automobile. Exceptions: 'a$ 7rincipal@!gent relationship: E.g. running an errand for someone 'b$ /amily ,ar (octrine: many states, owner is liable for tortious conduct of immediate family1house hold members if driving w1owner2s express or implied permission 'c$ 7ermissive Ase: Some states impose liability on owner for damage caused by anyone driving w1owner2s consent 'd$ 5egligent Entrustment: owner may be liable for own negligence in entrusting car to a driver G$ "ailor for "ailee : general rule < bailor not vicariously liable for tortious conduct of bailee. %K 'a$ 5egligent Entrustment < bailor may be liable for own negligence in entrusting bailed object I$ 7arent for ,hild : parent not vicariously liable for tortious conduct of a child but most statutes ma#e parents liable for willful = intl torts of #ids up to a certain amount. 'a$ ,hild acting as agent for parents: vicarious liability if child committed tort while acting as agent 'b$

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7arent liable for own negligence in allowing child to do something1negligent supervision 'use dangerous object alone, if apprised of child2s conduct in past < liable for not using due care$ K$ Tavern #eepers: 'a$ ,0: no liability imposed on vendors resulting from vendee2s intoxication 'b$ 6odern 0aw: States enacted *(ramshop !cts- creating a c1a for . rd person injured by intoxicated vendee based on ordinary negligence principles "$ 7arties: 6ultiple ( issues %$ ?oint = Several 0iability : 8here &: negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly = severally liable 'E.g., liable to 7 for entire damages incurred$. If damages are divisible, each ( is liable for only identifiable portion 'a$ (s acting in concert: 8here &: (s act in concert = injure 7, each is jointly = severally liable for entire injury : even if injury is divisible 'b$ Statutory 0imitations: 6any states abolished joint liability for %$ (s judged to be less at fault than 7s or &$ for all (s regarding noneconomic damages < ma#e liability proportional to (2s fault &$ Satisfaction = >elease 'a$ Satisfaction: recovery of full payment. 4nly one satisfaction allowed. Antil satisfaction, 7 may proceed against all jointly liable (s 'b$ >elease: !t ,0 < release of % joint tortfeasor was a release of all joint tortfeasors. 6ajority: release of one joint tortfeasor doesn2t discharge other tortfeasors .$ ,ontribution = Indemnity: determine how joint tortfeasors allocate damages they must pay to 7 'a$ >ule of ,ontribution: !pportions responsibility among those at fault : !llows a ( who pays more than his share of damages under joint = several liability to have a claim against other jointly liable parties for the excess. 'i$

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0imitations: ,ontribution ( must be originally liable to 7 : not applicable to intl torts 'ii$ 6ethods of !pportionment '%$ ,omparative ,ontribution: 6ost states. ,ontribution imposed in proportion to relative fault '&$ E)ual Shares: minority. !pportionment in e)ual shares regardless of degrees of fault '.$ Indemnity: Shifting the entire loss bw or among tortfeasors. Typical situations a. by + b. vicarious liability situations < E.g., truc# driver speeding. Injured party sues company = driver. 7assive tortfeasor 'company$ can get indemnification from active 'driver$ c. Strict products liability: 'one who is passively negligent < retailer fails to investigate v one who2s actively < 6acy2s from ,uisine !rt bc of toaster$ d. identifiable difference in degree of fault ,$ Survival = 8rongful (eath: %$ Survival of tort actions allow c1a to survive death of %: parties. Asually torts to property : torts resulting in personal injury survive. &$ Torts invading intangible personal interests: 'eg., defamation, invasion of right to privacy, malicious prosecution$ expire on Dictim2s death %N .$ 8rongful (eath: grant recovery for pecuniary injury result to spouse = next of #in. (ecedents creditors have no claim against amount awarded. >ecovery allowed only to extent deceased could have recovered had he lived ($ Tortious Interference w1/amily >elationships %$ 3usband 8ife: either spouse may bring action for loss of consortioum: loss of domestic services 'mowing lawn$, sexual intimacy = companionship : caused by (2s intentional or negligent tortious conduct against other spouse &$ .G

7arent ,hild: 7arent may maintain action for loss of child2s services : caused by (2s intentional or negligent tortious conduct. ,hild cant. E$ Tort Immunities %$ Intra /amily Tort Immunity: most states abolish husband@wife tort immunity = slight majority abolished parent@child immunity. &$ ;ovt Tort Immunity 'a$ /ederal ;ovts < under /ederal Tort ,laims !ct, AS has waived immunity for tortious acts but not for %$ assault &$ battery .$ false imprisonment 9$ false arrest C$ malicious prosecution G$ abuse of process I$ libel1slander I$ misrepresentation = deceit = N$ interference w1+ rights 'b$ State = 0ocal ;ovt: varies 'c$ Immunity of 7ublic 4fficials: 7ublic officials carrying out official duties immune from tort liability for acts done w1o malice or improper purpose. "ut liability for ministerial acts 'd$ ,haritable Immunity: 6ajority of jxs have eliminated

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