Torts Outline for the California Bar Exam


I. Intentional Torts

  1. Basics

    1. Two Steps: (1) identify the elements that a P needs to get to the jury, and (2) identify the affirmative defenses that the D can use.

    2. Prima Facie Case (generally):

      1. Act by the defendant (voluntary movement)

      2. With the specific (goal oriented) or general (knows w/ substantial certainty) intent to effect certain consequences (choosing a particular means, not necessarily an injury).

        1. Note: intent may be transferred in limited circumstances

        2. Incapacity is not a good defense to intent. Kids, crazy people, drunks are all capable of committing an intentional tort.

        3. Ignore the extreme or hyper sensitivity of the P

      3. Result must have been legally caused by Ds act or something set into motion by him. Satisfied if D’s conduct was a substantial factor in bringing about the injury.

  2. Specific Intentional Torts:

    1. Battery: (i) harmful/offensive contact: unpermitted by an ordinary or reasonable person (judged by a reasonable person standard), (ii) to plaintiff’s person includes anything connected to the P (iii) with intent (D desires to bring about the forbidden outcome, or acts with knowledge that the outcome is virtually certain to occur), (iv) causation

      1. Actual damages not required

    2. Assault: (i) an act by the D creating a reasonable apprehension (expectation/knowledge) (ii) of an immediate battery, (iii) intent (iv) causation

      1. Reasonable apprehension judged by reasonable person standard,

        1. Knowledge of the act is required

          1. David & Goliath: Goliath can be in apprehension (knowledge) that David is going to hit him (even if he is not afraid,

        2. The D must have al least apparent ability to commit the act

          1. Unloaded gun: if P knows that gun is unloaded, no apprehension. But, if the P has no knowledge that that the gun is unloaded, yes apprehension.

      2. Immediate battery goes to the urgency of the threat

        1. Words alone lack the necessary immediacy. Need physical conduct.

        2. But, words can negate immediacy.

          1. Conditional words: if…I’d do x → no immediacy

          2. Future threats: I’ll beat you up 5 hours from now → no immediacy.

    3. False Imprisonment: (i) an act or omission by D that restrains/confines P (ii) to a bounded area, (iii) intent, (iv) causation

      1. Restraint = physical barriers, physical force, threats of force, failure to release, invalid use of legal authority.

        1. Restraint ≠ moral pressure or future threats

        2. Restraint judged by reasonable person standard

        3. If duty to facilitate someone’s movement, failure to do so = restraint

      2. Bounded area = no reasonable means of escape known/reasonably discoverable to P

        1. Area may be bounded by threat

        2. Keeping someone out ≠ confinement in a bounded area

      3. Period of confinement irrelevant for prima facie

      4. P must have known of confinement OR be physically harmed by it

    4. IIED: (i) act by the D amounting to extreme and outrageous conduct, (ii) intent or recklessness as to effect of act, that (iii) caused (iv) severe emotional distress to P.

      1. Outrageous: conduct that exceeds all bounds of decency tolerated in a civilized society.

        1. Insults alone ≠ outrageous

        2. Continuous, repetitive conduct ↑ likelihood of finding outrageousness

        3. Common carriers (transportation co.s), innkeepers (hotels) have high duty to treat their patrons w/ respect, so anything they do could = outrageousness.

        4. Where D targets bad behavior at person who looks emotionally vulnerable ↑ likelihood of finding outrageousness (young children, elderly, pregnant women, members of racial, ethnic, religious minority groups)

        5. Deliberately targeting someone’s known hyper-sensitivity = outrageous

      2. Bystanders may recover IIED if meets all IIED elements (i.e. shows that D’s purpose was to cause bystander severe emotional harm) OR

        1. P was present when injury occurred

        2. P was a close relative of injured person AND

        3. D knew (1) and (2).

    5. Trespass to Land: (i) physical invasion of Ps real property (ii) intent to enter that particular piece of land (no need to intend to trespass) (iii) invasion was legally caused by the D’s act.

      1. Physical invasion = entering land or propelling any tangible objects onto the Ps property

      2. Real property includes the air above and the soil below (to a reasonable distance)

    6. Trespass to Chattels (personal property): (i) act by the D that interfered w/ Ps right of possession (either via damage to the chattel or deprivation of the right to possess the chattel), (ii) intent, (iii) causation, (iv) actual damages

      1. Involves modest, slight harm (keying a car)

      2. Allows P to recover the cost of repair.

      3. Mistaken belief that it is your own property is not a valid defense.

    7. Conversion: (i) act by the D that interfered with Ps right of possession, (ii) interference is so serious that it warrants requiring D to pay the chattel’s full value (iii) intent, (iv) causation.

      1. Involves significant, extensive harm (demolishing a car) (the longer the withholding and the more extensive the use more likely a finding of conversion).

      2. Allows P to recover the full value of the item involved – forced sale

  3. Defenses to Intentional Torts

    1. Consent: P consented to D’s conduct. Inquiry:

      1. Was the consent valid?

        1. Individuals w/out capacity (drunks, children, crazy people) are deemed incapable of valid consent.

        2. Sane, sober adults may consent via express consent.

But, express consent is void if given as a result of duress or fraud (including failure to reveal sexually transmitted disease in consensual sex).

        1. Plus consent may be implied by

          1. Custom and usage (ex. being shoved during a basketball game).

          2. Reasonable interpretation of the P’s objective conduct (jury determination of reasonableness of D’s interpretation; P’s subjective thoughts are irrelevant).

      1. Did the D stay within the boundaries of consent?

        1. If D exceeded the implied/express scope of consent, D is liable.

    1. Self Defense, Defense of Others, Defense of Property. Three conditions for use:

      1. Timing: The conduct to which the D is responding is in progress or eminent. Must act in real time. No revenge.

        1. Self-defense: when the tort is now being or about to be committed

        2. D of others: when the actor reasonably believes that the other person could have used force to defend himself

        3. D of property: after request to desist or leave (unless clearly futile/dangerous)

      2. Accuracy: The D must have a reasonable belief that his interests are being threatened. But, reasonable mistakes as to threat are allowed.

        1. Self-defense: reasonable mistake as to existence of danger allowed

        2. D of others: reasonable mistake as to whether the other person is being attacked or has a right to defend himself allowed

        3. D of property: reasonable mistake as to whether an intrusion has occurred or whether a request to desist is required allowed. No mistake allowed as to whether the entrant has a privilege

      3. Force: May only use the amount of force necessary to guard against the conduct.

        1. Reasonable force may be used, but excessive force → tort liability

        2. No deadly force unless threat of serious bodily harm.

        3. But, deadly force (or traps) never acceptable to protect property

    2. Privilege of arrest: D has the privilege to arrest/detain the P? Appropriate force?

      1. Felony arrest by PO: officer must reasonably believe that a felony has been committed and the person he arrests has committed it. Reasonable degree of force; deadly only when threat of serious harm.

      2. Felony arrest by private citizen: felony must haven in fact been committed, and person must reasonably believe the arrestee committed it. Reasonable degree of force; deadly only when threat of serious harm.

      3. Misdemeanor arrests: must be a breach of peace and committed in the presence of the arresting party. Reasonable degree of force; never deadly force.

    3. Necessity: person may interfere w/ real or personal property where there is a reasonable necessity to avoid threatened harm (only applies to property torts).

      1. Public necessity:arises when a D invades P’s property in an emergency to protect the community as a whole or a significant group of people (absolute defense to liability).

      2. Private necessity: arises when a D invades P’s property in an emergency to protect a personal interest (only a limited defense).

        1. Private necessity D must pay for actual harm done to P’s property

        2. Private necessity D not liable for nominal or punitive damages (P can’t even get $1 in nominals)

        3. So long as the emergency continues, private necessity D may remain on P’s land (P has no privilege to chase D away, if P does, P is liable).

    4. Discipline: parent/teacher may use reasonable force in disciplining children.

  1. Nuisancebalance the interests; and avoid undue interference with the P’s land

    1. Private Nuisance: substantial, unreasonable interference with a private individual’s use or enjoyment of property which he actually possess or to which he has a right of immediate possession.

    2. Public Nuisance: unreasonable interference w/ the health, safety, property rights of the community.

    3. Remedies: P usually awarded damages. If damages inadequate or unavailable, injunctive relief will be available. Self-help for private nuisance (only necessary force may be used).

    4. Defenses: (1) legislative authority, (2) multiple actors, (3) coming to the nuisance

II. Harm to Economic and Dignitary Interests

  1. Defamation

    1. Common Law Defamation Prima Facie Case:

      1. Defamatory statement (written or oral stmt that adversely affects one’s reputation)

        1. Usually need allegation of fact reflecting negatively on a trait of character (loyalty, honesty, etc,). Name-calling is not enough.

        2. Opinions may be actionable if the listener would assume that the opinion is based on fact

      2. Of or concerning P (reasonable person would understand the stmts as referring to P)

      3. Publication of the statements by D to a 3rd Person

        1. Either intentionally or negligently; orally (slander) or in writing (libel)

        2. Need intent to publish, not intent to defame;

        3. 3rd party must understand the communication.

      4. Damages (maybe) to P’s reputation: depends on type of defamation

        1. Libel (anything memorialized as permanent, i.e. written or published):

          1. General damages presumed: no need to prove damages

          2. Special damages need not be proven

          3. Includes oral repetitions of printed material (i.e. radio stmts).

        2. Slander (spoken or oral defamation)

          1. Generally, injury is not presumed, so must prove special damages: economic loss (got fired, lost a contract)

          2. But, injury is presumed – slander per se – for statements that:

            1. Adversely reflect on one’s conduct in business or profession

            2. P currently has a loathsome disease

            3. P is or was guilty of a crime involving moral turpitude

            4. A woman is unchaste

    2. Defenses to Defamation (no liability if):

      1. Consent (complete defense)

      2. Truth (complete defense) (D bears burden of proof).

      3. Absolute privilege: based on who the D is: remarks made by federal executive officials engaged in their official duty, in “compelled” broadcast, and between spouses (ex. husband communicates defamation re 3rd party to wife, no liability)

      4. Qualified privilege: circumstances where we want to encourage candor (job applications, letter of recommendation). If you limit yourself to matters relevant to the subject at hand, you are not liable for a reasonable misstatement of fact that is defamatory. But, qualified privilege lost if you deliberately spread lies about someone.

        1. Examples where QP applies: reports of official proceedings; statements in the interest of the publisher – defense of one’s actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient.

    3. First Amendment Defamation: If the defamation involves a matter of public concern, the Constitution requires proof of two additional elements:

      1. Falsity of the defamatory language (shifts the burden of proof back to P).

      2. Fault on the part of the D

        1. If public official/figure: must prove malice (knowledge that the statement was false or reckless disregard as to its truth).

          1. If actual malice → damages presumed → liability imposed

        2. If private person: need only prove negligence as to falsity (no reasonable investigation as to the statements accuracy).

          1. If negligence + proof of actual injury → liability imposed

          2. If actual malice → damages presumed → liability imposed

  2. Invasion of Right to Privacy – 4 Types

    1. Appropriation of P’s picture or name: must show unauthorized use for commercial advantage (usually advertisement/promotion of product/services). Exception for newsworthiness (e.g. Sports Illustrated putting picture of Tiger on the cover).

    2. Intrusion upon Ps affairs or seclusion: must be objectionable to a reasonable person; P must be in a place where there’s an expectation of privacy (photos taken in public places don’t count); no requirement for physical entry into the P’s property (no trespass needed, but trespass may be a part of the intrusion)

    3. Publication of fact placing P in false light: wide spread dissemination of a major misrepresentation about the P that would be objectionable to a reasonable person. Statement can be, but need not be defamatory. Allows P to recover emotional damages. This is not an intentional tort, so an inadvertent misrepresentation still constitutes false life. If concerns matter of public interest must prove malice.

    4. Public disclosure of private facts: wide-spread dissemination of confidential information about the P that would be objectionable to a reasonable person. Deals with truthful information. Exception for newsworthiness information (e.g. no liability for publishing Cheney’s medical records). Information must be private (e.g. can’t sue co-worker for telling the office that P is gay after seeing him at a gay-pride rally)

    5. Defenses: Consent; defamation privileges (only apply in false light and disclosure cases)

  3. Misrepresentation

    1. Intentional (fraud, deceit): Elements

      1. [Affirmative] misrepresentation of a material fact

      2. Which D knew/believed to be false or had no foundation when she made the stmt

      3. Intent to induce P to act or refrain from acting in reliance on the misrepresentation

      4. Actual reliance (causation)

      5. Reliance was justifiable (usually requires that the stmt is fast not just opinion)

      6. Damages: P must suffer actual pecuniary loss.

    2. Negligent: Elements

      1. Misrepresentation by D in a business or professional capacity

      2. Breach of duty toward a particular P

      3. Causation

      4. Justifiable reliance; and

      5. Damages

  4. Wrongful Institution of Legal Proceedings

    1. Malicious Prosecution: (i) institution of criminal (or civil) proceedings against P; (ii) termination in P’s favor; (iii) absence of probable cause for prior proceedings; (iv) improper purpose; and (v) damages. Prosecutors are immune from liability.

    2. Abuse of Process: (i) wrongful use of process for an ulterior motive and (ii) definite act or threat against P in order to accomplish ulterior motive.

  5. Interference with Business Relations:

    1. Elements: (i) existence of a valid contractual relationship between P and a 3rd party or valid business expectancy; (ii) D’s knowledge of the relationship or expectancy; (iii) intentional interference by D including a breach or termination of the relationship or expectancy and (iv) damages.

    2. Ds conduct may be privileged where it is a proper attempt to obtain business for itself or protects its interests.

III. Negligence

  1. Prima Facie Case

    1. A duty on the part of the D to conform to a specific standard of care for protection of P against unreasonable risk of injury;

    2. Breach of that duty by D;

    3. The breach is the actual and proximate cause of P’s injury; and

    4. Damage

  2. Duty of Care: duty of care is owed to all foreseeable Ps. Inquiry:

    1. To whom do you owe a duty of care? You owe a duty to all foreseeable victims. Was the P foreseeable – i.e. Is P within the zone of danger (majority view)?

      1. Unforeseeable victims can’t recover. Farther away the victim, the less likely the victim is foreseeable.

      2. Exception forrescuers: it’s foreseeable that a rescuer would come where D negligently put himself or a 3rd party in danger

      3. Intended beneficiaries may be foreseeable (i.e. beneficiary of a will).

      4. Medical professionals owe duty of care to viable fetuses

        1. Note: in botched abortion cases, child may not recover for wrongful life, but parents may recover medical expenses and pain & suffering in labor

    2. If so, what is the applicable standard of care? – That of a reasonably prudent person acting undersimilar circumstances.

      1. The standard never changes. It’s always that of a reasonable person under similar circumstances. No exception for personal attributes (stupidity, insanity, etc.)

      2. But, there are two exceptions:

        1. Superior knowledge: if the person has superior knowledge, that person is held to the standard of member of the profession in good standing in similar communities

        2. Physical attributes: if person is blind, confined in a wheel chair, etc., held tp the standard of the person with those same limitations.

      3. If emergency – duty of care of reasonable person under the same emergency conditions (But, if the D made the emergency, don’t consider it).

    3. Special Standards of Care:

      1. Children held to the standard of a child of like age, education, intelligence and experience acting under similar circumstances. Children under 4 can’t be liable for negligence. Note: this is a subjective standard, so it’s very lenient. Pro-defendant. Exception: if a child is engaged in an adult activity, no special standard (operating a vehicle w/ a motor).

      2. Professionals (w/ special skills, like doctors) must give the patient or client the care of an average member of that profession practicing in a similar community (big city v. small city). This is not a hypothetical comparison. Instead, comparison to real people in the profession. Requires testimony of expert witness.

      3. Common carriers and innkeepers held to a very high standard to passengers/guests

      4. Occupiers/Owners of land: look for (1) the type of entrant (trespasser, etc.), and (2) how the entrant got hurt (activity being conducted on the land by the occupier OR encountering a dangerous condition on the land).

        1. No duty to undiscovered trespassers. He always looses negligence claims.

        2. Duty to discovered or anticipated trespassers to (1) use reasonable care in the exercise of “active operations” and (2) warn of/make safe artificial conditions which are highly dangerous, concealed from the entrant, and known to the owner to cause risk of death or serious bodily injury (duty to protect from known, man-made, death traps) (no duty to protect from natural conditions, moderately dangerous, easily visible, unknown dangers).

        3. Duty to licensees (those entering the premises w/ permission but property is not open to the public; i.e. social guests) to (1) exercise reasonable care in active operations on the property, (2) warn of dangerous conditions (natural or artificial) concealed to the guest, but known in advance to the occupier.

        4. Dutyto invitees (those who enter land open to the public generally) to (1) exercise reasonable care in the active operations on the property, (2) warn of dangerous conditions concealed to the invitee, which the occupier knew about in advance, or could have discovered though a reasonable investigation (duty to inspect and repair).

        5. Duty to child trespassers of reasonably prudent care (attractive nuisance). If (1) owner knows or should have known of dangerous artificial condition, (2) owner knows/should know that children frequent the vicinity of the condition, (3) likely to cause injury, (4) expense of remedying the situation is slight compared to the magnitude of the risk.

      5. Statutory Standards of Care: statutory violation = negligence per se if class of person, class of risk

        1. Statute may replace more general common law duty if:

          1. P is w/in the class of persons the statute was designed to protect, and

          2. The statute was designed to prevent the type of harm suffered by P

        2. Where test is not met apply ordinary reasonably prudent person standard.

        3. Exceptions: (1) if statutory compliance would be more dangerous than statutory violation, don’t use the statute → apply reasonably prudent person standard. (2) where statutory compliance is impossible → apply reasonably prudent…

      6. NO duty to act affirmatively (no duty to rescue), except:

        1. Duty to assist someone you have placed in peril

        2. Pre-existing relationship between parties creates a duty (family member, common-carrier/innkeeper and patron, land-occupier and invitee), but reasonableness standard.

        3. Duty to prevent harm by third parties under your authority and control

        4. Once D undertakes to aid someone, he must do so w/ reasonable care

  3. Breach of Duty

    1. Generally, where a D’s conduct falls short of the level required by the applicable standard of cared owed, she has breached her duty.

    2. Where the duty standard is reasonableness, prove breach by one of the following theories:

      1. Identifying conduct, and explaining why it is unreasonable.

      2. Custom or usage may establish standard of care, but does not control whether certain conduct = negligence (entire industry may be acting negligently)

      3. Violation of applicable statute = negligence per se

      4. Res Ipsa Loquitor: occurrence of an event may establish breach of duty. Used by P who cannot say with precision what the D did wrong. Must show: (1) the accident causing the injury is of a type normally associated with negligence, (2) this type of accident normally occurs b/c of the negligence of someone in this D’s position/D had control of the means. Procedural implication

        1. If you show res ipsa, you get to the jury → deny D’s motion for a DV.

        2. If you fail to make a res ipsa case → try to prove other neglgence.

        3. Note, if you prove res ipsa + negligence per se, and there are no proximate cause issues → grant P’s motion for a DV.

  1. Causation

    1. P must show that D’s conduct was BOTH the actual cause AND proximate cause of her injury

    2. Actual cause (cause in fact) – several tests:

      1. But for” Test: injury would not have occurred but for D’s act or omission. Rebuttal: “even if” the D had not done X, P still would have been injured.

      2. If multiple Ds, “but for” does not work, so use alternate test:

        1. Mingled Causes – Substantial Factor Test: Where several causes bring about an injury, and any one alone would have been sufficient, D’s conduct is the cause in fact if it was a substantial factor in causing the injury.

        2. Unascertainable Causes Approach: more than one act, only one causes injury, but it is unascertainable which. Burden of proof shifts to the Ds, and each must show that his negligence is not the actual cause. If they can’t escape liability, hold them both jointly and separately liable.

    3. Proximate cause (legal cause): is it fair to impose liability?

      1. General rule: D is liable for all foreseeable harm

      2. Direct cause: D commits breach → harm → foreseeability

      3. Indirect cause: D commits breach → intervening act → P suffers full extent of harm. 4 well settled areas where liability will be imposed (for all harm) despite intervening act.

        1. Intervening negligent medical treatment

        2. Intervening negligent rescue

        3. Intervening protection or reaction forces:

        4. Subsequent disease or accident

  2. Damages: only actual damages available, must be proven (not presumed), no nominal damages

    1. Egg-Shell Skull: P compensated for all physical injury even if harm is surprising great in scope (foreseeability is irrelevant, takes P as he finds him) Note: not limited to negligence, applies to every tort.

    2. P may recover punitive damages if D’s conduct is wanton and willful, reckless or malicious

    3. P has duty to take reasonable steps to mitigate damages

  3. Special Negligence Causes of Action

    1. Negligent Infliction of Emotional Distress:general duty to avoid causing emotional distress to another.

      1. To recover w/out physical trauma, P must show:

        1. Breach of some other duty (i.e. negligence)

        2. Near miss. Almost suffered physical injury. W/in the zone of danger.

        3. As a result of the near miss, P suffers subsequent physical manifestations (i.e. heart attack, miscarriage, rash).

      2. Still need causation and damages (i.e. Ds conduct caused tangible physical injury)

      3. Bystanders may recover if (1) P and the person injured are closely related, (2) P was physically present at the scene, and (3) P observed or perceived the injury.

    2. Attorney Malpractice: an attorney owes a duty toward her client to act as a reasonably competent attorney. A reasonably competent attorney would…

      1. Go through each negligence element

      2. Damages: P must prove a case within a case. That is, P must prove that absent the attorney malpractice, P would have prevailed in the underlying action. Examine the P’s underlying cause of action to determine the likely outcome of the lawsuit.

  4. Affirmative Defenses to Negligence

Contributory Negligence

Implied Assumption of Risk

Pure Comparative Negligence

Partial Comparative Negligence


Ps own negligence contributes to her injury

P knew of a risk of injury and voluntarily assumed it

Ps own negligence contributes to her injury: P failed to take care of his own safety

Ps own negligence contributes to her injury: P failed to take care of his own safety


P’s claim completely barred

Exceptions: D had last clear chance; D was wanton or reckless.

Ps claim completely barred

Ps damage award reduced by % of fault attributable to her

Ps damage award reduced if her fault is less serious than D; otherwise Ps claim is barred

IV. Strict Liability

  1. Prima Facie Case:

    1. Existence of an absolute duty on the part of the D to make safe

    2. Breach of that duty

    3. Breach of the duty was the actual and proximate cause of the Ps injury AND

    4. Damage to the Ps person or property

  2. Liability for Animal Owners

    1. No SL for personal injuries by domestic animals unless owner has knowledge of a particular animals vicious propensities (previous bite → knowledge). Even absent SL, maybe liability for negligence or intentional tort.

    2. SL for reasonably foreseeable damage done by a trespass of his animals (SL for cattle)

    3. SL for personal injuries to licensees or invitees caused by wild animals as long as injured person did nothing to bring about the injury

  3. Ultrahazardous or Abnormally Dangerous Activities:

    1. Rule: If P injured by D’s ultrahazardous activity → D is strictly liable regardless of precautions

    2. 3 Requirements for SL

      1. Activity poses risk of serious harm to persons or property

      2. Activity cannot be made safe regardless of care

      3. Activity is uncommon in the particular community

    3. Extent of Liability: Duty owed to all foreseeable Ps to make safe the dangerous activity.

    4. Defenses:

      1. Best defense: assumption of risk

      2. Contributory negligence NOT a defense unless P knew of the danger and his unreasonable conduct was the very cause of the ultrahazardous activity miscarrying.

      3. Comparative negligence scheme generally applies.

  4. Products Liability

    1. Liability based on SL: P must demonstrate that:

      1. D is a merchant. Routinely deals in goods of this type. Need not be the party P dealt with directly.

        1. Casual sellers (one time sellers) ≠ merchants, so they can’t be strictly liable

        2. Service providers ≠ merchants, so they can’t be strictly liable (injury from chair in restaurant).

        3. Commercial lessors = merchants (rental car companies), so can be SLiable

      2. The product (or product information) is defective.

        1. Manufacturing defect: product emerges differently and more dangerous than the product made properly. Must prove failure to perform as safely as an ordinary customer would expect.

        2. Design defect: There is a hypothetical alternative design that is: (1) safer, (2) no more expensive than product, and (3) practical (does not undermine or impair utility). Alternatives include simply adding an adequate warning. Must prove D could have made the product safer w/out serious impact on the product’s $ or utility.

        3. Noncompliance with government safety standards = defect

      3. The defect existed at the time the product left the D’s control (if the product moved through ordinary channels of distribution, there is a presumption that the defect existed at the time it left the D’s control).

      4. P is a foreseeable user making a foreseeable use of the product.

      5. Defense: comparative fault, scientifically unknowable risk, unavoidable unsafe product.

    2. Liability Based on Negligence: D liable where P shows (1) duty (foreseeability) (2) breach (negligent conduct by D leading to the supplying of a defective product), (3) actual and proximate cause, and (4) damages

    3. Implied Warranties of Merchantability and Fitness:

      1. Merchantability: duty to supply goods of average acceptable quality that are generally fit for the ordinary purpose for which the goods are used

      2. Fitness: where seller knows or has reason to know the particular purpose for which the good is required, and the buyer relies on the sellers skill in selecting the goods.

VI. General Considerations

  1. Vicarious Liability

    1. Does not apply in intentional torts. Note this is a fall back theory. Always ask first, whether the D is liable on a direct liability theory.

    2. 6 keys instances

      1. Employer/employee → VL if act w/in the scope of employment → employer pays (if only minor deviation from scope employer still pays)

      2. Hiring party/Independent Ks ≠ VL. But, landowners are VL if IK hurts an invitee on the land. Plus, hiring party is VL if IK is engaged in inherently dangerous activities.

      3. Partners/Joint ventures → VL if act w/in the scope and course of the partnership

      4. Car owners/drivers ≠ VL unless jx. has special statute (or car owner loaned the car, so driver could do favor for owner).

      5. Parent/child ≠ VL except for limited SL for willful and intentional torts

      6. Tavernkeeper ≠ VL for patrol

    3. Major Caveat: negligent supervision, negligent hiring both trump VL.

  2. Multiple Ds

    1. Where two or more negligent acts combine to proximately cause an indivisible injury, each actor will be jointly and severally liable (for the entire damage)

    2. Satisfaction and Release?

    3. Contribution allows a D who pays more than his share of damage to have a claim against other jointly liable parties for the excess (not applicable for intentional torts)

    4. Indemnity (shifting the entire loss between or among tortfeasors) is available (1) by K, (2) in VL situations, (3) under strict product liability, (4) in some jx.s where there has been an identifiable difference in degree of fault.

  3. Tort Immunities

    1. Under Federal Torts Claim Act, the federal gov. has waived immunity for tortuous acts except: assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, interference w/ contract rights.

    2. Most state and local govs have also waived immunity to the same extent as the federal gov.

  4. Tortious Interference w/ Family Relationships

    1. Either spouse may bring claim for loss of consortium: loss of services, loss of sex

    2. Parent may bring claim for loss of child’s services, but not vice-a-versa.

  5. Survival Actions:

    1. At common law, a tort action abated at the death of the victim.

    2. Most state now have “survival actions,” which allow a victim’s cause of action to survive to permit recovery for all damages from the time of injury to the time of death.

  6. Wrongful Death Acts:

    1. Adopted by most states.

    2. Permits a surviving spouse or next of kin to recover for the death of a spouse or kin for loss of support and loss of consortium. But, spouse cannot recover for decedent’s pain and suffering, as these damages can only be recovered in a personal injury survival action.

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