Torts Outline

Main question: Is this defendant liable to this plaintiff for the tort at issue?
Questions
-

Can the P prove the elements of the claim?

Are there any affirmative defenses to excuse the Ds conduct?

Intentional Torts
-

Generally
o Ps super sensitivities are NOT to be taken into account unless there are
facts showing the D knew in advance
o Everybody can be liable for intentional torts. No lacking capacity for
intentional torts.
o A person is assumed to intend the consequences of her action if it was
her purpose to bring about the consequence or if she knows with
substantial certainty that it will occur anyway
o Transferred intent
Intent can transfer from victim to victim or tort to tort
Battery
o Intent
o Harmful or offensive contact
Unpermitted contact
Super-sensitivities are not to be considered unless D knows of
them
o With the Ps person
Anything connected with the Ps person will suffice (plate,
clothes, etc.)
Assault
o Reasonable apprehension of an immediate contact
Apprehension must be reasonable
Apprehension =/= fear or intimidation
Only have to know of the contact, not be afraid of it
Apparent ability creates reasonable apprehension
Doesnt matter if it is impossible to do something, only
that the P thinks it is possible
o Ex. Pointing an unloaded gun
Words alone are not enough words dont create immediacy
Words, when coupled with conduct, can be enough
Sometimes, words coupled with conduct, undo the
conduct AND any reasonable apprehension
o Ex. If you werent my best friend I would punch
you in the mouth
Battery > assault
False Imprisonment
o Sufficient act of restraint

Threats are enough

Inaction is enough if there was an understanding that D would
act for Ps benefit
P must be aware of the confinement
Length of confinement doesnt matter
May matter for damages
o To a bounded area
Freedom of movement is restricted
An area is not bounded if there is a reasonable means of escape
of that the P is aware of
Intentional Infliction of emotional distress
o Exists as a fallback position to use when other tort theories wont work
o Prima facie case
Outrageous conduct
Something you cant be expected to deal with
Continuous conduct
o Something normally ok, but continuing it makes it
worse
Typical Ps
o Very young child
o Elderly
o Pregnant women
No Ps super-sensitivities unless D knew of them
Typical Ds
o Common carriers (screw them at every opportunity)
o Innkeepers
Guest might be a different standard
Damages
Proof that P suffered severe emotional distress
Intent
Recklessness can suffice
Transferred intent is unavailable
Close relative being nearby might be enough if D KNEW
the relatives were there

Intentional Torts to property

-

Trespass to land
o Act of physical invasion
No need to show knowledge of crossing a property/boundary line
Propelling a physical object onto property will suffice
o Land
Includes the airspace above and the subsurface below so long as
there is a distance where the landowner can make reasonable
use of the space
Ex. Airline flying over isnt trespass to land
Trespass to chattels and conversion

o
o
o

Act of invasion
To personal property
Difference
If there is damage, go with trespass to chattels
A LOT of damage, conversion
Can also include serious interference with possessory
rights

Defenses to intentional torts

-

Consent
o P must have the capacity to consent
Those w/o capacity
Child/minor
Mentally impaired
Coercion/force
Consent given on basis of fraud or mistake
o Express Consent
Go ahead and do it
Look for facts relating to mistake, fraud, or coercion
o Implied Consent
Arises through custom and usage or through a Ps own conduct
Ex. Touch football game
Self-defense
o A person is justified in using reasonable force to prevent what she
reasonably believes to be an imminent threat of force
Belief must be reasonable
Self-defense requires that a reasonable person in the Ds
position would have believed they were in danger
Must be both subjectively and objectively reasonable
Force must be reasonable
Person may only use the degree of force reasonably
necessary to avoid the threatened harm
o Deadly force
Use of deadly force is reasonable only when
the defender reasonably believes that they
are facing deadly force themselves
o Retreat
Courts are divided on the question whether a
retreat is required before deadly force may
be used. Modern trend requires a retreat
before the use of deadly force UNLESS in
own home
Defense of others

A person may defend another person in the same manner and under
the same conditions as the person attacked would be entitled to
defend himself
Mistaken beliefs a defender is not liable if he reasonably
believed that another person was endangered
A reasonable but mistaken belief is ok
Defense of property
o A person may use reasonable force to defend his real or personal
property. However, deadly force may never be used to protect property
alone
Distinguishing from other defenses: Not the same as selfdefense or defense of others
o Hot pursuit
Have to be in hot pursuit of a thief to use force to get property
back
o Shoplifter
Same as other defense of property issues
Defense of property vs. false imprisonment
Necessity
o A necessity is used only in conjunction with intentional torts to
property
Will only work on trespass to land, trespass to chattels, and
conversion
o Public necessity unlimited privilege to protect a lot of people
Destroying houses to stop a fire from spreading
o Private necessity A qualified privilege to protect a limited number of
people
Have to PAY for the damages caused
Lands plane on farmers field when it experiences engine trouble
Can assert the defense of necessity for the trespass to
land but you still have to pay
Discipline
o Privilege of discipline
Parent or teacher can use reasonable force to discipline a child
o

Defamation
-

C/L Prima facie case

o False or defamatory statement
A statement that injures the Ps reputation
Implies information that is detrimental to the P
D bears the burden of proving truth
Truth is a defense to a defamation claim
o Of and concerning the P
Ds statement must reasonably be understood to refer to the P
Must be of and concerning the P specifically

Publication
The statement must be communicated to a 3rd person
3rd person must be capable of understanding the communication
Publication must be negligent if not intentional
Damages
Spoken (slander) P must prove special damages
Written/broadcast (libel) jury may presume special damages
P can recover presumed damages in cases of slander per se
Statements that impugn Ps profession/professional rep
Statements accusing P of a serious crime
Statements implying a loathsome disease
Statements that impugn the chastity of a woman
Defenses
Truth burden of proof is on D
Absolute privilege
Statements made in judicial proceedings
Statements made by legislative/executive officers in their
duties
Statements b/w spouses
Absolute privilege negates everything
Constitutional limitations
1st amendment protects speech on matters of public concern. In
cases involving speech on matters of public concern, SCOTUS
added elements to prima facie case
Falsity
o P must prove that the statement was false
o Prove knowledge of falsity or reckless disregard
Fault
o P must prove some level of fault
o Public persons
A public P must prove actual malice
SCOTUS defines actual malice as knowledge
or reckless disregard of falsity
o Private persons
A private P must prove fault amounting to
Falsity plus fault amounting to at least
negligence
Falsity + negligence
Damages
o In matters of public concern, all Ps must prove
actual malice to recover presumed or punitive
damages

Invasion of right to privacy

-

Appropriation

Use of Ps name or picture for commercial advantage, without

permission
o Ps likeness must be used for advertising, promotional, or labeling
purposes
Not news, etc.
Intrusion
o Interference with a Ps seclusion in a way that would be highly offensive
to a reasonable person
Telescope, peeping, etc.
o P must be in a place where he has an expectation of privacy
Ex. Celebrity swarmed by photographers on a public street
No intrusion
o Fallback Intentional infliction of emotional distress
False Light
o Widespread dissemination of information that is in some way
inaccurate AND that would be highly offensive to a reasonable person
o Ex. Newspaper publishes a false story proclaiming someone a hero for
rescuing children from fire
Public disclosure of private facts
o Widespread dissemination of factually accurate information that would
normally be confidential, and the disclosure of which would be highly
offensive to a reasonable person
Ex. D broadcasts neighbors embarrassing disease
Fact being broadcast must be a private fact
o Newsworthy disclosures are not actionable
Does the public have a right to know?
Defenses
o Consent
o Absolute and qualified privileges
Only apply to false light and public disclosure
o

Fraud
-

Affirmative misrepresentation
o Silence is generally not enough
o D has to actually say something actionable
Fault
o Scienter must be shown
o Fraud is an intentional cause of action
o Must be an intent to defraud have to know that what they are saying
is false
Intention to Induce reliance
o Statement must be material
Must be relevant and attempting to get you to buy something,
etc.
Actual and justifiable reliance

It is normally justifiable to rely on the opinion of one who has superior

skill or knowledge in the subject matter of the transaction
Damages
o Fraud is a no harm no foul cause of action
Fraud vs. Negligent misrepresentation
o Liability for negligent misrepresentation is normally confined to
commercial transactions/business
o Liability for fraud is normally confined to particular plaintiffs whose
reliance is contemplated
o

Intentional interference with business relations

-

Inducing breach of contract

o An intentional action that causes a 3rd person to breach an existing
contract with the P
Interference with contractual relations
o A D may be liable if interference with a Ps contractual relations makes
performance more difficult, even if the interference doesnt cause a
breach
Interference with prospective economic advantage
o A D may be liable for interfering with a Ps expectation of economic
benefit from 3rd persons, even in the absence of a contract
o Hard to prove
o Law gives some latitude here to protect business

Wrongful institution of legal proceedings

-

Malicious Prosecution
o Criminal/civil proceedings brought w/o probable cause, or brought with
an improper purpose
Abuse of process
o Using any form of legal process with an improper purpose

Negligence
-

Duty, Breach, Actual Causation/Proximate Cause, Damages

Duty
o To whom is a duty owed
o Owe a duty to all people who are foreseeable victims of your failure to
take precautions
Foreseeable as a matter of law
Rescuers/engaged in a rescue operation
Viable fetuses even if D has no knowledge of pregnancy
o Poindexter rule

Must exercise the amount of care that would be taken by a

reasonably prudent person under the same or similar
circumstances
This is NOT kind to D
D expected to use any superior skill or expertise for Ps
benefit if they have it
Ds physical disabilities are attributed to the reasonably
prudent person
o Ex. Reasonably prudent person in a wheelchair
Reasonably prudent person is a fixed constant in
negligence law
Is a motorist expected to use extreme care while driving
in a blizzard?
o No reasonable person standard never changes:
what would a reasonable person do in those
circumstances?
Special duty standards
Children
Majority Rule
o Child must exercise the degree of care that a
reasonable child of like age, intelligence, and
experience would exercise
Minority rule: Rule of sevens
o Under 7
Incapable of negligence
o 7 to 13
Rebuttable presumption that they are
incapable of negligence
P has to prove
o Over 14
Rebuttable presumption that they are
incapable of negligence
D has to prove they are NOT capable of
negligence
Adult activities
o A child engaged in an adult activity (ex. Driving) is
held to the adult standard for that activity
Professionals
A professional is required to possess and exercise the
knowledge and skill of an ordinary member of that
profession in good standing
Common fact patterns
o Medical malpractice
Informed consent: Must tell the patient the
risks/etc. of surgery
Dr. needs consent to avoid battery

Needs informed consent to avoid

negligence
o Legal malpractice
P must prove causation
That the P would have won if it wasnt
for the lawyers activity/inactivity
Owners/Occupiers of land
Source of the injury
o Did the injury result from the conduct of activity or
did the injury result from an encounter with a static
condition
Status of the P
o Undiscovered trespasser
No duty
o Discovered trespasser
Conduct of activity
Reasonable care
Static condition
No duty for natural conditions
For artificial conditions owe duty to
warn of or make safe known conditions
if nonobvious or highly dangerous
o Licensee social guest
Activity
Reasonable Care
Condition
Concealed condition known to the
owner
o Invitee land held open to the public at large
Activity
Reasonable care
Condition
Concealed condition known to the
owner or should have known about
duty to inspect
For a static condition, a land possessor can satisfy
obligation by:
o Going to condition and make it safe OR
o Give a warning
If a question involves a child trespasser, use the
reasonable person standard
o Attractive nuisance doctrine
If an entrant is injured by an open and obvious condition
the entrant will be required to protect themselves
Modern trend: Strong minority of states have abolished
the distinction b/w licensees and invitees

Special situations
Statutory standard of care
Negligence per se
o Class of person, Class of risk
P must be within the class of person the
statute is designed to protect
Risk must be within the risk the statute is
designed to protect
o Exceptions
Compliance with the statute is more
dangerous than violating the statute
Compliance is impossible under the
circumstances
Court will excuse statutory violation
and require use of normal negligence
Affirmative duty to act rule
o There is no duty to rescue
Doctor doesnt owe a duty to treat an injured
person
o Exceptions
D put the P in peril
If D put the P in peril they DO have a
duty to act
Relationships
Close family relationships trigger a
duty to act
Common-carriers/innkeepers have a
duty to act/rescue
Invitee-invitor relationship/store
owner-customer relationship
Duty to control 3rd persons
D must have actual ability and
authority to control
o Ex. Mom sees toddler run
towards a shopper in the
grocery store
Negligent Infliction of Emotional distress
o Super difficult to prove
o General rule is no duty no investment required to
prevent damage to someones psyche
o Exceptions
Zone of danger rule
If the D exposes you to physical risk
and you later suffer emotional/physical
expressions of your distress

There has to be physical

manifestations from the emotional
distress
o Ex. Hives, heart palpitations, etc
Bystander recovery
Bystander at the scene that has a
relationship with the victim
Still must be a physical manifestation
of distress
Special situations
Courts will liberalize rules where a Ds
negligence creates a great likelihood of
severe emotional distress
False death report, funerals, etc.

Negligence Duty + breach + causation + damages

Duty
-

P must point to specific conduct

o Specific conduct that violates the requisite duty standard
Proving specific conduct
o Evidence of custom is always admissible and never conclusive
Everyone or no one follows the duty
o Res ipsa loquitur
Used by desperate Ps who dont know what happened
P has to prove two things
Event was one that does not normally occur without
negligence
Any negligence that existed would be attributable to the
D
Consequence P gets their claim to the jury they dont
auto win

Causation
-

Cause in fact
o But for test A Ds conduct is the cause in fact of an injury when the
injury would not have occurred
Would it have occurred but for the Ps conduct?
o Alternative tests
Substantial factor test
Use in cases with multiple Ds and a comingled cause
o Ex. A and B negligently light fires. Fires burn
separately but then combine to burn down Ps
house

But for wont work so use substantial factor

test
Burden shifting use in cases with multiple Ds with an unknown
cause
Ex. M and L shoot at a bird. Piece of bird shot ends up in
Cs eye. No one can tell which shot hit C. but for wont
work, so we shift the burden of proof to the Ds.
Proximate Cause
o Proximate cause acts to limit the Ds liability. A person is only liable for
those harms that are within the risk of his activity
Direct cause
If the result of the Ds negligent conduct is foreseeable, D
will be liable
o Err on side of finding for the P
Indirect cause
Foreseeable result
o Foreseeable intervening cause
P wins/D liable
o Unforeseeable intervening cause
Uncertain
Unforeseeable result
o Foreseeable intervening cause
uncertain
o Unforeseeable intervening cause
P loses/D not liable
Intervening cause will almost never cut off liability:
o Subsequent medical malpractice is considered
foreseeable
Ex. Driver negligently hits pedestrian and
breaks his leg, Pedestrian is rushed to
hospital where a doctor sets his leg
improperly causing an infection
Is D negligence the proximate cause of
pedestrians infection? YES
o Negligent Rescue is considered foreseeable
Ex. Negligent driver hits pedestrian and
breaks his leg. Rescuer attempts to drag
Pedestrian out of harms way, but instead
drags them into further harm. Is Drivers
negligence the proximate cause of
Pedestrians further harm? Yes
o Reaction forces
D negligence causes crowd to flee from the
scene. Fleeing crowd member knocks over P
breaking his arm. Is Ds negligence the
proximate cause of Ps broken arm? Yes
o Subsequent diseases or accidents

Ex. Negligent Driver this pedestrian and

breaks his leg. Pedestrian is rushed to
hospital where leg is set properly. That night,
Pedestrian slips off his crutches while
climbing stairs and breaks his arm. Is Driver
negligence the proximate cause of the
broken arm? Yes
Cases in which an intervening cause will not cut off
liability IF D can anticipate the intervening cause Can
the D anticipate them?
o Negligence of a 3rd party if foreseeable
Ex. D negligently blocks the sidewalk, forcing
Pedestrian to walk in the street. Speeding
Motorist hits Pedestrian. Is Ds negligent the
proximate cause of the injuries?
Would D be able to anticipate? Yes
o Criminal conduct if foreseeable
Ex. Parking garage owner negligently fails to
keep secure lock on the door. Criminal
attacks patron in garage. Patron sues Garage
Owner. Is Garage owners negligence the
proximate cause of patrons injuries?
Yes, D would be able to anticipate
o Acts of god if foreseeable
Ex. Workman leaves materials on roof
despite predictions of a windstorm.
Windstorm arrives and blows materials off
rood. Falling materials hit pedestrian. Is
Workmans failure to remove the materials
the proximate cause of the injury?
Yes, it was foreseeable

Damages
-

A P must prove damages as part of the prima facie negligence case.

Elements of a typical personal injury award are:
o Past and future medical expenses
o Lost income
o Pain and suffering
Eggshell P rule
o A D is liable for the full extent of the damage he causes, even if the
extent was unforeseeable

Defenses to negligence

Contributory negligence
o A Ps failure to use the relevant degree of care for his or her own safety
o If the P is contributorily negligent it is a complete bar to recovery
o Ameliorating
If D had the last clear chance to avoid the harm
Assumption of risk
o Express assumption of the risk
Ill take my chances
Consequence: bar recovery
Exceptions
Patient signs form assuming the risk of negligent medical
treatment
o Bar to recovery? No this violates public policy
Skier signs form assuming the risk of negligently groomed
slopes?
o No bar to recovery can assume the risk in a
recreational contract
o Implied assumption of the risk
Voluntary + knowing
Absence of an alternative destroys voluntariness
Emergency situations destroy voluntariness
Consequences
Absolute bar to discovery
Comparative Negligence (Modern)
o Pure comparative negligence P gets proportional recovery
o Modified Comparative negligence bar recovery if P goes over 49% at
fault
o Application
P 70% at fault D 30% at fault
Pure comparative negligence
o P recovers 30%
Modified comparative negligence
o P recovers nothing
Where it exists, comparative negligence supplants all other
affirmative defenses except express assumption of the risk

Strict Liability
-

Animals
o Trespassing animals SL for foreseeable harm caused by animals
(other than household pets)
o Personal injury
Domesticated animals
No SL unless you know of the animals propensity for
ferociousness
Wild animals

SL from the get go unless P does something stupid

Abnormally dangerous activities
o Attributes
The activity is incapable of being conducted except with high
risk
Basically, it cant be made safe
Activity must be uncommon to the community
If harm occurs, it is likely to be severe
o Limitation
The harm still must be within the risk
Must be proximate cause
Product related injuries
o Prima facie case
D must be a merchant of the type of goods involved
In order for SL to attach, seller has to be a merchant of
that type
Product must be defective
Manufacturing defect
o The product is an anomaly, and the difference b/w
the product in hand and all other is the very
difference that caused the harm
Design defect
o A problem that is common to each unit that the
seller could have eliminated through a reasonable
alternative design
Defect must have existed when it left the sellers hands
Presumption that the defect existed if the product moves
in the ordinary channels of transportation/commerce
P made a foreseeable use of the project
o Defenses
Traditional jurisdiction
In traditional jurisdictions, conduct that is the equivalent
of contributory negligence will not bar recovery; conduct
that is the equivalent of assumption of the risk will bar
recovery
o Ex. P reads a riding lawnmower manual, including
an instruction to warm up the mower. P ignores the
instruction and is thrown from his seat. Does
lawnmower manufacturer have a good defense to
Ps SL claim?
Yes P knew
o Ex. P ignores the manual and is later thrown from
his seat. Does manufacturer have a good defense
to Ps SL claim?
No
Comparative fault jurisdiction

Majority of comparative fault jurisdictions now apply

comparative fault principles in SL liability cases
When the theory being relied on is negligence, let
wholesalers/retailers off the hook
An adequate warning will usually insulate a D from SL
When a question refers to a feasible alternative for making a
product safer, it often signals that you should look for design
defect.
Design Defect will probably ignore a warning
o Foreseeable use is not the same as intended use
Ex. P uses a chair as a stepladder foreseeable? Yes
Ex. P uses a power saw as dental floss foreseeable? No
Dont be fooled by additional parties
All that matters for products liability SL is foreseeability
o Incidental to performance of a service
If product use is incidental to the performance of a service, then
SL is unavailable
Private Nuisance
o Conduct that causes a substantial and unreasonable interference with
the use and enjoyment of land
Substantial and unreasonable interference
Has to be BOTH
o Remedies: Courts will weigh the equities of the parties in deciding
whether to enjoin a Ds activity
Public Nuisance
o Conduct that causes physical or moral harm to the public in general
A private P can maintain a public nuisance action if they suffer
an injury greater than the public @ large

General Considerations
-

Vicarious liability
o Employer-employee
Employer is vicariously liable for employees torts committed
within the scope of employment
Frolic and detour rules
Ex. Truck driver gets into an accident while heading to a
diner that is two miles off route. Is Truck Drivers employer
vicariously liable for his conduct?
o Minor detour still within scope
Ex. Truck driver gets into an accident while in Las Vegas.
Is the employer vicariously liable for his conduct?
o No on a frolic of his own
Intentional torts
An employer is not liable for employees intentional torts

Ex. Minor league baseball pitcher purposefully

throws a ball at a spectator is club owner
vicariously liable? No not for intentional torts
o Will extend if violence is part of the job bouncer,
etc.
Compare with independent contractors
o Generally no vicarious liability
o Exception independent contractor is engaged in
an inherently dangerous activity
o Exception Public policy depends on state
Automobile owner-driver
Generally no vicarious liability
o Exception when driver is performing an errand for
the owner, liability may be premised on agency
principles
Minority rules
o Family car states Owner is vicariously liable for
the torts if driving w/ owners permission AND living
in same household
o Permissive use states Owner is vicariously liable
for the torts of anyone using the car with
permission
o Parent-child No vicarious liability
o Look for direct liability first
Ex. Joe gives keys to drunk friend. Drunk
friend gets into an accident and injures P. Is
Joe vicariously liable to P?
No directly liable
Adjustment of rights between multiple Ds
o Joint and several liability
Each D can be liable to P for the entire damage incurred
Concert of action
o Ex. Tom and Randy drag race down Main Street.
Tom hits Ps car, P can sue both of them because
they are acting in concert
Indivisible harm
o Single but indivisible harm
Ex. R and C both negligently drive into an
intersection and collide. T, a passenger in Rs
car is injured, T can sue them both
o Indemnity
Passive D receives full reimbursement from active D
o Contribution
Traditional
Paying D recovers proportional shares from other Ds
Comparative contribution
Recovery is based on the relative fault of each tortfeasor
o

Wrongful Death and Survival Actions

o Wrongful death or survival actions are not separate causes of action.
They apply to tort actions when the tort results in the victims death
Wrongful death actions: Wrongful death actions are lawsuits
brought by a decedents beneficiaries for their own loss of
support and companionship
Survival actions: Survival actions are lawsuits brought by a
decedents estate based on claims that deceased could have
brought
Claims vested in estate and subject to defenses
Immunity
o Family immunity
Family members suing each other majority says no
o Governmental immunity
General rule is immunity
There is no immunity when the government is engaged in a
proprietary function
Acting like a private citizen would
Government retains this immunity when engaging in police, fire,
army, etc.
o Charitable immunity
Been abolished in most jurisdictions

Tennessee
Prima facie case intentional torts to the person
-

IIED
o

Ds conduct need not be directed at a specific person to be actionable

in TN

Prima facie case intentional torts to property

-

Trespass to land
o Negligent cutting of timber results in damages equal to double the
market value
o Intentional cutting is treble

Defenses to intentional torts

-

Follows majority rule, permitting the use of force to defend a 3 rd person

whenever the actor reasonably believes the aided person would have the
right of self-defense

Privilege of arrest
-

Mistake
o A police officer can, w/o a warrant, arrest a person for:

Public offense committed or breach of the peace threatened in

the officers presence
When the person has committed a felony, although not in the
officers presence
When a felony has in fact been committed, and the officer has
reasonable cause for believing the arrestee has committed it
On a charge made upon reasonable cause of the commission of
a felony by the arrested person
A private citizen can arrest for similar reasons
Amount of force allowed
o An officer cannot use deadly force if other reasonable means of
apprehension are available
Warning must be given if feasible
Officer must have probable cause to believe the arrestee has
inflicted or threatened serious bodily harm
Shoplifting detention
o Merchant who has reasonable cause to believe that a person is
shoplifting can detain the suspect for a reasonable time using
reasonable force

Harm to economic and dignitary interests

-

Defamation
o Ps must prove actual injury unless constitutional malice is shown
actual malice
o Private persons do not have to prove actual malice
o Mitigating factors
Newspapers and periodicals that print a requested retraction in
good faith escape liability for punitive damages
TV and radio stations avoid liability for defamatory statement
made by nonemployees if they show they exercised due care
Invasion of right to privacy
o Appropriation of Ps picture or name
TN courts characterize the right of commercial appropriation of
picture/name as a separate and independent right of publicity
Can be brought by descendants
Represents a property right
o False Light
Is an actionable tort
o 1st amendment limitations
False light actions involving public concern or brought by a
public official/figure actual malice must be shown
Private individual/private concern, P must show that the
publisher was negligent in placing the D in a false light
o Misrepresentations
Intentional misrepresentation

Fraud/deceit cause of action exists if make a promise

with intent to renege
Negligent misrepresentation
Applies to professionals/businesses that specialize in
providing info but also to those that supply misleading
information for use in business transactions
o Interference with business relations
One who induces another to breach a valid K is liable to the
innocent contracting party for treble damages
o Wrongful institution of legal proceedings
Malicious prosecution
Issue of PC is for the jury
o Retaliatory discharge
Can sue if fired for whistleblowing/refusing to do illegal things
Fired employee can recover even if employer says no
whistleblowing
o Consumer fraud
Consumer protection act
Money damages for anyone who suffers loss of money or
property as a result of any unfair or deceptive practice
Court can have treble damages if it finds the Ds act was a
willful or knowing wrong
Negligence
o Who is a duty owed?
Parent who becomes pregnant after an ineffective sterilization
cannot recover expenses of raising the child
o Standards of conduct
Medical malpractice based on local standards of care
o Duty to disclose risks of treatment
Medical treatment without informed consent can be battery
o Children
TN applies rebuttable presumption that a child between 7-14 is
incapable of negligence
Presumption is not conclusive and may be rebutted by
evidence of capacity for negligence
Duties owed by bailee
o Proof that property was delivered to bailee in good condition and was
returned in damaged condition constitutes prima facie evidence of
negligence
Premises liability
o Obviousness of danger
The fact that danger is open or obvious does not automatically
relieve D of a duty of care
If the foreseeability and gravity of the harm posed from the Ds
conduct, even if open and obvious to the P, outweighed burden
on the D to engage in alternative conduct to avoid the harm,
there is a duty to act with reasonable care

Compare foreseeability and gravity of harm vs. burden on

D to fix
Users of recreational land
Similar to multistate
Statute does not apply if landowner acted willfully or with
gross negligence, or charged a fee to use the land
Status rules
No difference b/w invitees and licensees
Duty to exercise ordinary care under the circumstances
May require owner of a business to provide security if
criminal acts are foreseeable

NEID
o No need for physical symptoms
Serious emotional injury where a reasonable person would be
unable to adequately cope
Must be supported by expert medical/scientific proof
If intentional, no need for medical proof
o Bystander cases
Foreseeability test for recovery in bystander cases
Establishing foreseeability
o Whether the P was in sufficient proximity to the
injury-producing event to allow her to observe it
o Whether the injury to the 3rd person was or was
reasonably perceived to be, serious or fatal and
o Whether the P was in sufficiently close relationship
to the injured 3rd person
o Affirmative duty to act
Good Samaritan statute exempts all persons who voluntarily
render emergency treatment from liability for ordinary
negligence

Breach of duty
-

Res ipsa
o Available in medical malpractice even if expert testimony is necessary
to prove causation

Damages
-

Punitives
o If punitives are sought needs to be a bifurcated trial
Proper if:
D acted intentionally
Fraudulently
Maliciously
Recklessly
o First part of trial
Jury has to decide whether punitives are proper

Second part of trial

Jury determines amount
Damage caps
o Noneconomic damages capped at 750,000
Cap doesnt apply if the tortfeasor acted negligently or under
the influence of alcohol or drugs
o 1 million if injury is catastrophic
o Punitives capped at twice compensatory damages, or 500k whatever
greater
Comparative negligence
o No contributory negligence
o Modified comparative fault
P can recover up to 49/51
Multiple Ds
o Multiple Ds can be combined to reach 51% threshold
Court can allocate fault to nonparties that arent part of the suit
o Certain tortfeasors excluded from fault determination
Employers immune from liability under workers comp
Employers negligence not included when apportioning
fault by employee against 3rd party
Intentional tortfeasor when D had duty to control
Where Ds negligent conduct involved the creation of a
foreseeable risk that another would commit an intentional
tort
o Nonparty intentional tortfeasors conduct will not be
considered
o

Strict liability
-

Animals
o Dog injuring livestock creates SL for owner

Products liability
-

Will cover leases and sales warranties

Inadequate warnings
o Manufacturer can be held liable for failure to warn
If an intermediary can be expected to convey a warning,
manufacturer is absolved
Proving a defect
o Product can be defective if either
Defective condition OR
Unreasonably dangerous
Consumer expectations test and
o Product considered defective if a reasonable
consumer would find it defective
Non-complex products
Reasonable manufacturer test
o Govt safety standards

Product manufactured according to government standards is

presumed to not be unreasonably dangerous
o No requirement for contractual privity b/w P and D
Statutory defenses
o Repose
A cause of action not commenced within 10 years of initial sale
is extinguished
If expiration date must be brought within 1 year of
expiration
Strict liability
o Only available against the manufacturer, not other sellers unless
Manufacturer exercised substantial control over that aspect of
design, testing, manufacture, packaging, or labeling of the
product that caused the alleged harm