1. Assault

2. Battery

3. False Imprisonment

4. Intentional Infliction of Emotionl Distress

1. Tresspass to Land

2. Nuisance

1. Tresspass to Chattel

2. Conversion

1. Consent

2. Defensive Force

3. Necessity

Necessity:  this defense relates only to the property torts (trespass to land, chattels, or conversion)

a.  public necessity:  may protect property from natural or other force for the public good

Defamation:  the law of defamation is divided into two parts:  common law elements and constitutional requirements

1.  Common law elements:  all of the following must exist for defamation at common law—

  a.  Defamatory Statement:  defined as language tending to adversely affect one’s reputation;

  b.  Of and concerning plaintiff:  a reasonable reader, listener, or viewer would understand the defamatory statement referred to the plaintiff (note: statement made to small group—everyone wins; large group—nobody wins);

  c.  Publication:  communication (intentionally or negligently) to someone other than plaintiff;

  d.  Damages:  those required to prove depends on type of defamation (libel—written; slander—spoken)

     i.  libel:  no need to prove special damages, and general damages are presumed;

1. Duty

2. Breach

3. Factual Cause

4. Legal Cause

5. Damages

Plaintiff was foreseeable:  whether plaintiff was foreseeable often depends on plaintiffs status relative to defendant—

   a.  duty to invitee: warn of nonobvious dangerous conditions and make reasonable inspections to discover & make safe 

   b.  duty to licensee:  warn of nonobvious dangerous conditions if known and make safe (no duty to discover conditions)

   c.  duty to discovered trespasser:  no duty to warn, but liable for concealed, dangerous, or negligently conducted acts

   d.  duty to undiscovered trespasser:  generally no duty owed, but cannot protect property with life threatening measures

Breach of Duty:  where the defendant did not meet the standard of care required of him

1.  Apply standard of care:  “Here, plaintiff alleges defendant breached his duty by ___.  This is unreasonable because ___.” 

2.  Violation of Statute:  may be established as a matter of law by proof that defendant violated an applicable statute.  (This is negligence per se, but causation and damages still must be established.)

Factual Cause:  before proximate cause can be considered, cause in fact must first be established—

1.  “But For”:  the injury would not have occurred but for the defendant’s act

Proximate Cause:  this is a limitation of liability.  Defendant is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. 

1.  Direct Cause:  where there is an uninterrupted chain of events from the negligent act to plaintiff’s injury, defendant is liable for all foreseeable harmful results, regardless of unusual manner or timing.

2.  Indirect Cause:  where there is an affirmative intervening force (e.g. 3rd person acts; act of God) after defendant’s negligent act, and this combines with the act to cause the injury, there are different liabilities:

    —if the intervening force is foreseeable, and the harmful result is foreseeable, the defendant is usually liable,

   -if both are unforeseeable, the defendant is usually not liable;

          -if there is one of each, the defendant is often not liable—seems to hinge on foreseeability

1. Contributory Negligence

2. Assumption of Risk

3. Comparative Fault (Negligence)

Comparative Fault:  this is the law in 46 jurisdictions.  There are two types:  pure and partial

a.  pure:  allow recovery no matter how great plaintiff’s negligence (i.e. plaintiff is 5% negligent—damages reduced 5%)

STRICT LIABILITY:  care of the defendant is irrelevant.  The following elements are required:  (1) existence of an absolute duty on the part of defendant to make safe; (2) breach of that duty; (3) breach of the duty was the actual and proximate cause of the plaintiff’s injury; and (4) damage to the plaintiff’s person or property.

1. Animals

2. Ultra-Hazardous Activity

Strict Products Liability:  a strict duty is owed by a commercial supplier, and suppliers must anticipate all reasonably foreseeable uses, even if they are misuses of the product

1.  Defective Product:  supplier has breached his duty when he supplies a product so defective to be unreasonably dangerous

2.  Causation:  the defective product is the actual and proximate cause of the injury

Implied Warranties: two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer vs. seller

1.  Merchantability:  refers to whether goods are of average acceptable quality and generally fit for the ordinary purpose for which the goods are used

Vicarious Liability (Respondeat Superior):  vicarious liability is liability that is derivatively imposed.  An employer will be vicariously liable for tortious acts committed by his employee if the tortious act was within the scope of employment  Note:  a parent is not vicariously liable for the tortious act of his child, but may be negligent in letting a child act.

Look for Agency cross-over