[Ariel Chou]

Torts
Intentional Torts
 Prima Facie Cases
 Intentional Torts to the Person
- Battery
- Assault
- False Imprisonment
- Intentional Infliction of Emotional Distress
 Intentional Torts to Property
- Trespass to Land
- Trespass to Chattels
- Conversion
 Defenses to Intentional Torts
- Consent
- Self-Defense, Defense of Others, and Defense of Property
- Necessity
General Points 1. We always assume we are dealing with the ordinary or reasonable
sensitivity.
2. There is no incapacity defense in the realm of intentional torts.
Prima Facie Case of Intentional Tort 1. Act:
- The act required is a volitional movement by defendant
2. Intent (intentionally, deliberately, on purpose):
- Specific intent
- General intent
- Transferred intent
3. Causation:
- D’s conduct was a substantial factor in bringing about the injury
Intentional Torts to the Person
Battery 1) Harmful or offensive contact
2) To P’s person
3) Intent
4) Causation
Harmful or offensive contact Objective test – reasonable person considered as offensive and harmful
P’s person Anything connected to the P
Time A battery need not produce instantaneous harm or offense
Damages not required P can recover nominal damages even if actual damages are not proved, P may
recover punitive damages for malicious conduct
Assault 1) An act by D creating a reasonable apprehension in P
2) Of immediate harmful or offensive contact to P’s person
3) Intent
4) Causation
Apprehension What does P know? (Reasonable expectation)
 Knowledge or awareness is essential
 Fear is not required
Immediate Battery Words alone are not sufficient – words must be coupled with conduct.
Negate reasonable apprehension:
- Conditional words
- Words promising action in the future
Damages not required P can recover nominal damages even if actual damages are not proved, P may
recover punitive damages for malicious conduct
1
 [Ariel Chou]
False Imprisonment 1) An act or omission on the part of D that confines or restrains P to a
bounded area
2) Intent
3) Causation
Awareness of confinement P must know of the confinement or be harmed by it
Bounded Area No reasonable means of escape known to P
 Dangerous, disgusting, humiliating, hidden ways are unreasonable means
to escape
Damages not required P can recover nominal damages even if actual damages are not proved, P may
recover punitive damages for malicious conduct
Intentional Infliction of 1) An act by D amounting to extreme and outrageous conduct
Emotional/Mental distress 2) Intent or recklessness
3) Causation
4) Damages – severe emotional distress
Extreme and Outrageous Conduct Conduct that transcends all bounds of decency, mere insults are not
outrageous.
Conduct that is not normally outrageous may become so if:
1) It is continuous in nature
2) It is directed towards a certain type of P
3) It is committed by a certain type of D – Common carrier or innkeeper
Damages Actual damages (severe emotional distress) are required.
Intentional Torts to Property
Trespass to Land 1) Physical invasion of P’s real property
2) Intent (enter onto that land)
3) Causation
Physical Invasion The invasion may be by a person or object
Real Property Not only the surface, but also airspace and subterranean space for a
reasonable distance
Potential P Anyone in actual or constructive possession (need not be the legal owner) of
the land may maintain this action
Trespass to Chattels 1) An act by D that interferes with P’s right of possession in a chattel
2) Intent (to do the act of interference)
3) Causation
4) Damages
Interference  Intermeddling – directly damaging the chattel
(Relatively slight)  Dispossession – depriving P’s lawful right of possession
Damages Actual damages – not necessarily to the chattel, but at least to a possessory
right – are required
Conversion 1) An act by D that interferes with P’s right of possession in a chattel
2) The interference is so serious that it warrants requiring D to pay the
chattel’s full value
3) Intent (to do the act of interference)
4) Damages

The tort of conversion does not require that the D damage the chattel or
permanently deprive the owner of the chattel. All that is required is that
defendant’s volitional conduct result in a serious invasion of the chattel
interest of another in some manner.

2
 [Ariel Chou]
Defenses to Intentional Torts
Consent P’s consent to D’s conduct is a defense
Express (actual) consent D is not liable if P expressly consents to D’s conduct
Exception: That express consent is invalid if it is given as a result of a fraud or
duress
Implied consent Apparent consent:
- An implied consent can arise from the custom and usage; or
- Reasonable interpretation of P’s objective conduct under surrounding
circumstances
Consent implied by law – when action is necessary to save a person’s life or
some other important interest in person or property
Scope of consent If D exceeds the scope of consent, he may be held liable for tort
Capacity for consent Individuals without capacity are deemed incapable of consent
Children can consent to age appropriate invasions
Self-defense 1. P have engaged in some kind of threating behavior, so D commits a tort to
avert to eliminate the threat, the tort is alleged to be a response to a
threat
2. Proper Timing – The threat that D responding to must either be in process
as you act or imminent
3. Reasonable belief that the threat is genuine (reasonable mistake will not
destroy privilege)
4. Proportion Test (rule of symmetry) – necessary & proportional
Necessity (only to property torts) Public necessity – D invades P’s property in an emergency but does so to
protect the community as a whole or a significant group of people
(complete, total defense)

Private necessity – D commits a property tort, invades P’s property in an

emergency merely to protect an interest of his own
(not an absolute defense - Liable for compensatory or actual damages, not
liable for punitive or nominal damages)
Emergency continues As long as the emergency continues, P can’t throw D off the lands.
Your normal privilege to expel them is suspended during the pendency of the
emergency.
Harm to Economic and Dignitary Interest
 Defamation
 Invasion of Right to Privacy
- Appropriation
- Intrusion
- False Light
- Disclosure tort
Defamation
Defamation 1) Defamatory language
2) Of or concerning the P
3) Publication thereof by defendant to a third person
4) Damage to P’s reputation

Additional elements, if the defamation involves a matter of public concern:

5) Falsity of the defamatory language
6) Fault on the part of D

Defamatory Language Language tending to adversely affect one’s reputation

3
 [Ariel Chou]
 A statement of opinion is actionable only if it appears to be based on
specific facts, and an express allegation of those facts would be
defamatory
 A pure subjective opinion is not defamatory
Of or concerning P A reasonable reader, listener, or viewer would understand that the
defamatory statement referred to P. Not necessary to name the person.
Publication Share the defamatory statement with at least one person other than P – could
be either negligently or intentionally
Damages Libel cases: defamatory statement that is permanently embodied in some
medium of expression.
 In this case damages are presumed, however it does not preclude P from
proving damages, the more you prove, the more you get
 Presumed general damages
Slander cases: defamatory statement that is oral
 If P shows special damages (pecuniary damages) D is liable for defamation
– evidence of actual damage (economic loss) needed
Slander per se:
- A statement about P’s business or profession
- A statement that P has committed a serious crime
- A statement imputing unchastity to women
- A statement that P suffers loathsome diseases
 Damages are presumed – nominal damages unless actual pecuniary loss is
shown
Defenses to Defamation 1. Consent: express or implied (complete defense)
2. Truth: D may prove truth as a complete defense
3. Privilege
Privilege Absolute privilege
- Spouses
- Governmental absolute privilege (Accusation is absolutely privileged)
Qualified privilege
- Where there is a public interest in encouraging candor, encouraging
people to speak forthcoming, to speak openly.
Qualified privilege conditioned on 2 elements:
1) D must make the statement in good faith; there must be a reasonable
basis to make the statement
2) Confine yourself to matters that relevant to the topic at hand
Invasion of Right to Privacy
Appropriation D uses P’s name or picture for commercial purposes without P’s permission
Exception: News worthy exception
Intrusion An invasion of P’s seclusion in a way that will be highly offensive to the
(wiretapping, surveillance camera) average person – P has to be in a place where there is reasonable expectation
of privacy
False Light The wide spread dissemination of a material falsehood about P that will be
highly offensive to the average person – one attributes to P views he does not
hold or actions he did not take
Disclosure Tort The wide spread dissemination of confidential information about P that will be
highly offensive to the average person
Exception: News worthy exception
Defenses to privacy torts 1. Consent
2. The defamation privilege (absolute/qualified) will apply to false light and
disclosure tort
4
 [Ariel Chou]
Negligence
 Prima Facie Case
 Duty of Care
- Foreseeable P
- Standards of Care
- Duty regarding negligent infliction of emotional distress
- Affirmative Duties to act
 Breach of Duty
- Res Ipsa Loquitur
 Causation
- Actual Cause
- Proximate Cause
 Damages
- Personal Injury
- Property Damages
- Duty to Mitigate
 Defenses to Negligence
- Contributory Negligence
- Assumption of Risk
- Comparative Negligence
Duty of Care
Foreseeable/Unforeseeable P A duty of care is owed to all foreseeable Ps
Foreseeable zone of danger – P located in the foreseeable zone of danger
Special Situations Rescuer is not barred by the fact that unforeseeable – danger invites rescuer
Standard of care Objective test – Reasonable person standard
One person must take as much care as would have been taken by a
hypothetical, reasonably prudent person acting under similar circumstances.
Children Subjective test – Children are held to the standard of child of like age,
education, intelligence, and experience
Exception: Children engaged in adult activities may be required to conform to
an “adult” standard of care
 A child under 5 is usually without the capacity to be negligent
Professionals A professional or someone with special occupational skills is required to
possess the knowledge and skill of a member of the profession or occupation
in good standing in similar communities.
Premises Liability –  There is no duty to protect one off the premises from natural
Duty of possessor to those off conditions on the premises
premises  However, there is a duty for unreasonably dangerous artificial
conditions or structures abutting adjacent land
 Also, one must carry on activities on the premises so as to avoid
unreasonable risk of harm to others off the premises
Premises Liability –  Unknown/undiscovered trespasser: No duty owed
Duty of possessors to those on  Known/discovered/anticipated trespasser: The possessor must warn
premises – Trespasser of or make safe:
1) concealed
2) artificial conditions
3) known to the landowner
4) involving risk of death or serious bodily harm

5
 [Ariel Chou]
Attractive Nuisance Doctrine i) A dangerous condition on the land that the owner is or should be
(Landowner has special duty of care) aware of
ii) The owner knows or should know children frequent the vicinity of the
condition
iii) The condition is likely to cause injury (dangerous because child is
unable to appreciate the risk
iv) The expense of remedying the situation is slight compared with the
magnitude of the risk
Premises Liability – The possessor has a duty to warn of or make safe:
Duty of possessors to those on 1) All dangerous conditions (natural or artificial)
premises – Licensees 2) known to the owner that
(with permission but do not confer 3) create an unreasonable risk of harm to the licensee and
economic benefit) 4) that the licensee is unlikely to discover
Premises Liability – The possessor has a duty to warn of or make safe:
Duty of possessors to those on 1) All dangerous conditions (natural or artificial)
premises – Invitees 2) known to the owner, or
(with permission and also confers 3) could have discovered through a reasonable inspection
economic benefit) 4) create an unreasonable risk of harm to the invitee and
5) that the invitee is unlikely to discover
Police officer and firefighters The police and firefighters simply never recover the injury that is an inherent
risk of their job
Statutory Duty of Care A clearly stated specific duty imposed by a statute providing for criminal
(Negligence per se) penalties may replace the more general common law duty of due care, if:
1) P is within the protected class
2) The statute was designed to prevent the type of harm suffered by P

Exception 1: Where statutory compliance would be more dangerous than

statutory violation
Exception 2: If compliance would be impossible under circumstances
Effect of violation or compliance Unexcused statutory violation is negligence per se, a conclusive presumption
of duty and breach of duty
Duty regarding negligent infliction of Near mince cases: D who is behaving negligently, doesn’t actually physically
emotional distress injured P, but almost did, it was a close call it was near mince, which left P
agitated
o D was negligent
o D’s conduct created a Bystander cases:
foreseeable risk of physical 1) P and the person injured by D are closely related
injury to P 2) P was present at the scene of the injury
o Physical manifestation of that 3) P personally observed or perceived the event
stress
Special relationship between P&D cases:
Pre-existing business relationship, it is highly foreseeable that careless
performance by D will cause significant distress.

Duty to act affirmatively Generally, there are no duty to ant affirmatively

Exception 1: Assumption of duty by acting

Exception 2: Peril due to D’s Conduct
Exception 3: Special relationship between parties
Exception 4: Duty to prevent harm from 3rd person

6
 [Ariel Chou]
Breach of Duty
Res Ipsa Loquitur P must show that:
[Facts speaks for itself] i) The accident causing the injury is a type that would not normally
occur unless someone was negligent, and
ii) The negligence is attributable to D (this type of accident ordinarily
happens because of the negligence of someone in D’s position)
Causation
Actual causation (causation in fact) “BUT FOR” test – but for the breach, the injury would not occur
Merged causes Substantial factor test – where several causes bring about injury, and any one
alone would have been sufficient to cause the injury, D’s conduct is the cause
in fact if it was a substantial factor in causing the injury
Unascertainable causes When there are two acts, only one of which causes injury, but it is not known
which one, the burden of proof shift to D – if cannot prove, then jointly liable
Proximate causes (legal causation) Foreseeability test – D is generally liable for all harmful results that are the
normal incidents of and within the increased risk caused by his acts

4 special precedents, D should be held liable:

1) Intervening negligent medical treatment
2) Intervening negligent rescue
3) Intervening protection or reaction forces
4) Subsequent disease of accident

Direct Cause cases Indirect Cause cases

Foreseeable Unforeseeable
Intervening Force Intervening Force
Foreseeable D liable D liable D liable,
harmful result unless intervening force is
crime or intentional tort
Unforeseeable D not liable D not liable D not liable
harmful result

Damages
Duty to mitigate P has duty to take reasonable steps to mitigate damages
“Egg-shell skull” principle Take your P as you find him – Once D has committed other elements of cause
of negligence, D is liable for all harm suffered by P.
Defenses to Negligence
Contributory Negligence Contributory negligence is negligence on the part of the P that contributes to
her injuries.
[Effect – contributory negligence completely bars P’s right to recovery]
Implied Assumption of Risk P assumed the risk of any damage caused by D’s act:
1) P must have known the risk and
2) Voluntarily proceed in the face of the risk
[Effect – Implied assumption of risk completely bars P’s right to recovery]

7
 [Ariel Chou]
Comparative Negligence Proportion Test – weighs P’s negligence and reduces damages accordingly

Pure Comparative Negligence: P’s damage award reduced by percentage of

fault attributable to her

Partial Comparative Negligence: P’s damage award reduced if her fault is

below the threshold level; otherwise, P’s claim is barred
Strict Liability
Prima Facie case 1) The nature of the D’s activity imposes an absolute duty to make safe
2) The dangerous aspect of the activity was the actual and proximate cause
of P’s injury
3) P suffered damage to person or property
Liability for Animals No Strict Liability for Domestic animals
- Trespasser cannot recover for injuries inflicted by the landowner’s
abnormally dangerous domestic animals in the absence of negligence
- Exception: If D keeps a domesticated animal and has knowledge of its
dangerous propensities, D will be held strict liable
Strict Liability for Wild animals
- Safety precaution is irrelevant
Abnormally Dangerous Activities 1) The activity must create a foreseeable risk of serious harm even when
reasonable care is exercised by all actors
2) The activity is not a matter of common usage in the community
- Bio hazard
- Toxic chemicals
- Blasting
- Demolish a building
- High radiation
- Nuclear energy
Product Liability 1) D is a commercial supplier of a product (merchant)
2) Product must be defective
3) The defect existed when the product left D’s hand/control
4) P must be making a foreseeable use
D is a merchant - Casual sellers are not merchant, so no strict liability
- Service provider that make products available collateral to the service,
are not merchant as the core transaction is service, so no strict liability
- Lessors can be held strictly liable
- Parties up the distribution chain are merchants, can be held strictly
liable, no Privity requirement for strict liability
Type of Defect Manufacturing defects: If a product emerges from manufacturing different
from and more dangerous than the products that were made properly
- P must show that the product failed to perform as safely as an ordinary
consumer would expect
 Whether the product was dangerous beyond the expectation of the
ordinary consumer
Design defects: When all products of a line are the same but have dangerous
propensities
- Risk - Utility test: Danger of the product outweighs its value so that a
reasonable person would not put it in the market
- Feasible alternative: P must show that the manufacturer could have
made the product safer, without serious impact on the product’s price
or utility
8
 [Ariel Chou]
 Whether a less dangerous design or alternative was economically feasible
Information defect: When manufacturer’s failure to give adequate warnings as
to the risks involved in using the product that may not be apparent to users
Existence of defect when the The defect must have existed when the product left D’s control – no alteration
product left D’s control has taken place
Presumed satisfied if the product moved in ordinary channels of distribution
Foreseeable use A foreseeable use is not necessarily the intended use, many inappropriate uses
are nonetheless foreseeable

9
 [Ariel Chou]
Nuisance
 Private Nuisance
 Public Nuisance
Private Nuisance Private nuisance is a substantial, unreasonable interference with another
private individual’s use or enjoyment of property that he actually possesses or
to which he has a right of immediate possession
Public Nuisance Public nuisance is an act that unreasonably interferes with the health, safety,
or property rights of the community
Vicarious Liability
Employer-Employee An employer will be vicariously liable for tortious acts committed by her
employee if the tortious acts occur within the scope of the employment
relationship
Intentional torts It is usually held that intentional tortious conduct by employees is not within
the scope of employment, except:
1. Force is authorized in the employment
2. Friction is generated by the employment
3. The employee is furthering the business of the employer
Independent Contractor Generally, a principal will not be vicariously liable for tortious acts of her agent
if the agent is an independent contractor, except:
1) The independent contractor is engaged in inherently dangerous
activities
2) The duty, because of public policy considerations, is simply non-
delegable
Automobile owner-automobile General Rule: Automobile owner is not liable for the torts committed by the
driver driver
Exception: If the driver drives owner’s car in order to do an errand for the
owner, then there is vicarious liability
Parent-kids Parents are not vicariously liable for the torts committed by their kids
Adjustment between co-defendant (Multiple Ds)
Contribution Comparative contribution: The jury just decides the percentage to the co-
defendants
Indemnification Indemnity involves shifting the entire loss between or among tortfeasors
- By contract
- In vicarious liability situations
- Under strict product liability
- Where there has been an identifiable difference in degree of fault
The loss of Consortium Claim
Husband-wife Either spouse may bring an action for indirect interference with consortium
and services caused by D’s intentional or negligent tortious conduct against
the other spouse.
a. Loss of services
b. Loss of society (companionship)
c. Loss of sex
All 3 types of damages must be actually proved
Misrepresentation
Prima Facie case for 1) A Misrepresentation
Intentional Misrepresentation 2) Scienter
3) At intent to induce P’s reliance
4) Causation (actual reliance)
5) Justifiable reliance
6) Damages
10
 [Ariel Chou]
Whether P can establish all of the elements for an action for battery
 The prima facie case for battery consists of:
i) An act by D that brings about harmful or offensive contact to the P’s person
ii) Intent on the part of D to bring about such harmful or offensive contact
iii) Causation
 Intent may be either specific (D’s purpose in acting is to bring about the consequences of his conduct) or general
(D knows with substantial certainty that the consequences will result)
Assault
 An assault is an affirmative act by the defendant with the intent to place the plaintiff in apprehension of an
imminent harmful or offensive contact to his person and that actually causes the plaintiff apprehension.
 The plaintiff need not be placed in fear of the contact; an apprehension of contact that is offensive is sufficient.
 Furthermore, the apparent ability to inflict the contact is all that is needed; the fact that it could not be carried
out is irrelevant.
 The requirement is generally not satisfied by words alone – there usually has to be some volitional movement of
the body for there to be a reasonable apprehension of imminent contact.
 Under the doctrine of transferred intent, the intent to inflict a battey satisfies the intent requirement for assault.
Intentional infliction of emotional distress – whether the conduct rises to the level of outrageous conduct
 Intentional infliction of emotional distress requires that the defendant act in an extreme and outrageous manner
with the intent to cause extreme emotional distress and that the victim actually suffer extreme emotional
distress.
 Current societal standards would probably not label this relatively brief interaction among children of almost
equal age to be outrageous.
False imprisonment
 To establish a prima facie case of false imprisonment, the plaintiff must show:
i) An act or omission to act by the defendant that confines or restrains the plaintiff to a bounded area
ii) Intent on the part of the defendant to confine or restrain the plaintiff
iii) Causation
 Actionable confinement encompasses the failure to provide a means of escape when under a duty to do so.
Defense to intentional torts – consent
 A defendant is not liable for any otherwise tortious act if the plaintiff consented to the defendant’s act.
 Consent may be implied by law where the action is necessary to protect an important interest in person or
property.
 A defendant is not liable for an otherwise tortious act if the plaintiff consented to the defendant’s act.
 In additional to express consent, consent may be inferred as a matter of usage and custom or implied by law.
 The defendant may be liable if he exceeds the scope of the consent implied by the occasion, such as using
unreasonable force.
Whether P can show in a negligence action that D breached a duty to her
Duty of care (standard of care)  Breach of duty  Causation (actual & proximate)  Damages

Prima Facie Case

 The prima facie case for negligence requires P to show:
i) A duty on the part of D to conform to a specific standard of conduct for the protection of P against un
unreasonable risk of injury
ii) Breach of that duty by D
iii) That the breach was the actual and proximate cause of P’s injury
iv) Damage to P’s person or property
 Each person owes a duty to behave as a reasonable person would under the same or similar circumstances.
Hence, a duty is owed to anyone to whom a reasonable person would have foreseen a risk of harm under the
circumstances.

11
 [Ariel Chou]

Duty
 While a general duty of care is imposed on all human activity, the general rule is that no legal duty is imposed on
any person to affirmatively act for the benefit of others
 One who gratuitously acts for the benefit of another, although under no duty to do so in the first instance, is then
under a duty to act as a prudent and reasonable person
 The existence of an emergency will be one of the factors taken into account when evaluating whether the
defendant acted reasonably
 Whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable
person engaged in the same or similar activity. If a D’s conduct creates an unreasonable risk of injury of persons in
the position of P, the general duty of care extends from D to P.
 Those entering the defendant’s premises for a purpose connected to the business of the defendant are owed a
duty of reasonable care in the defendant’s conduct of active operations on the premises.

Breach
 If the defendant’s conduct falls shorty of the required level of care, the defendant has breached its duty.
 Children also have a duty of care to act like a reasonable person, however, children are held to the standard of a
child of like age, education, intelligence, and experience. A child under the age of 4 is usually without the capacity
to be negligent.
 A statute providing for criminal penalties may establish a specific duty that will replace the more general duty of
care in negligence cases. The statute will apply if:
i) It was designed to prevent the type of harm suffered by the plaintiff, and
ii) The plaintiff is within the protected class.
 In most jurisdictions, an unexcused violation of a statutory standard of care is negligence per se, which means
that it establishes the first two prima facie elements of negligence.
 Even if there is negligence per se, you must still prove that the breach has actually and proximately caused the
injury.
 The res ipsa loquitur doctrine enables a plaintiff to establish beach of duty just from the fact that an injury
occurred that would not ordinarily occur unless someone was negligent.
 The plaintiff must establish evidence connecting a particular defendant with the negligence to support a finding of
liability against the defendant.

Actual and Proximate Cause

 The breach of duty actually caused the injuries (apply but for test)
 Proof of actual cause typically requires the plaintiff to show that he would not have been injured but for the
defendant’s act
 Proximate cause is present because the harmful result that occurred was within the range of foreseeable
consequences that could result from the act. (and watch out for a foreseeable intervening cause)
 Proximate cause exists only if the defendant’s negligence caused a foreseeable harm or cause a foreseeable
reaction from a dependent intervening force. Intervening events that produce a harm outside of the scope of
what one would normally anticipate from the defendant’s negligence are generally deemed unforeseeable and
superseding. Such a superseding event will break the chain of causation and relieve the defendant of liability.
 An act will be considered the proximate cause of an injury if the injury was a foreseeable consequence of the act.
This is really a policy determination; the court determines whether it would be unfair to hold the defendant
legally responsible for the plaintiff's injury.
 Such questions can be split into a few categories: a foreseeable result can occur in an unforeseeable manner; a
foreseeable plaintiff can receive unexpected injuries; or an unforeseeable plaintiff can receive the type of injuries
that were the foreseeable result of the plaintiff’s act. Such cases can also be categorized by whether an outside
force intervened between the defendant’s negligent act and the plaintiff’s injury. If an outside force did not
intervene, the case is said to be a direct cause case.; if an outside force did intervene, the case is said to be an
indirect cause case. Generally, in both direct and indirect cause cases, a defendant will be found liable if the
12
 [Ariel Chou]
resulting injury was foreseeable, although there are a few exceptions.

Damages
 A tortfeasor takes his victim as he finds her – the fact that the extent or severity of harm was not foreseeable
does not relieve D of liability.
 A plaintiff in a negligence action is to be compensated for all his economic and noneconomic damages (past,
present, and future), including medical expenses, lost earnings, pain and suffering, impaired future earning
capacity, and property damage.
Negligence infliction of emotional distress
 A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a
foreseeable risk of physical injury to the plaintiff. Usually the plaintiff must satisfy 2 requirements to prevail:
i) The plaintiff must be within the “zone of danger” from physical injury; and
ii) The plaintiff must suffer physical symptoms from the distress caused by the danger to her.
 However, the rule is different when a bystander outside the zone of danger suffers emotional distress from seeing
the defendant negligently injure another. In that case, most states allow her to recover if:
i) The plaintiff and the person injured by the defendant are closely related
ii) The plaintiff was present at the scene of the injury; and
iii) The plaintiff personally observed or perceived the event. Most of these states still require physical
symptoms, although the modern trend is to drop that requirement.
Whether P has a viable claim based on respondeat superior or based on employee’s negligence
 The outcome of this claim will need to be determined by the jury.
 Under the doctrine of respondeat superior, an employer is vicariously liable for tortious acts committed by his
employee within the scope of the employment relationship.
Defense for negligence
 Under modern comparative negligence rules, P’s negligence would reduce his recovery from D.
 Under the modern comparative negligence approach, fault is apportioned between the parties. The plaintiff’s
percentage share of fault reduces his total damages award by that percentage.
 In jurisdiction applying a “partial” comparative negligence approach P will be barred for recovery if plaintiffs is
50% or more at fault.
 While under common law a party could not recover if he was found to be negligent in any way.
Strict Liability
 A strict liability action based on supplying a defective product requires proof of
i) A commercial supplier
ii) Production or sale of a defective product
iii) Actual and proximate cause
iv) Damages the defendant
 The defendant must be a commercial supplier of a product
 The second element requires proof that the product sold was in defective condition unreasonably dangerous to
users.
 In a case of defective design, the prevailing “feasible alternative” test provides that the product is defective if the
defendant could have removed the danger without serious adverse impact on the product’s utility or price.
Defamation
 Defamation requires (i) a defamatory statement by the defendant (ii) of or concerning the plaintiff, (iii)
publication to a 3rd person, and (iv) damage to the plaintiff’s reputation.
 The type of damage the plaintiff must prove depends on whether the defamation constitutes libel or slander
 Libel is the written or printed publication of defamatory language wherein the plaintiff does not need to prove
special damages and general damages are presumed
 Slander is spoken defamation wherein the plaintiff must prove special damages unless the defamation falls within
a slander per se category
 When the defamation involves a public figure, the plaintiff must prove, in addition to the common law elements,
13
 [Ariel Chou]
the falsity of the statements as well as actual malice (knowledge of falsity or reckless disregard of truth) on the
part of the defendant
 When the defamation involves a private person but a matter of public concern, the plaintiff must prove at least
negligence and actual injury, in addition to falsity and the common law elements
 Damages are presumed because the statement was libel
 The original defamer is liable for republication by another party if it was reasonably foreseeable
 A qualified privilege can be lost through abuse, such as actual malice (knowledge a falsity or reckless disregard of
the truth) or excessive publication
Invasion of Privacy
 Invasion of privacy based on false light requires:
i) Publication by the defendant that places the plaintiff in a false light
ii) That would be highly offensive to a reasonable person, and
iii) Actual malice if the published matter is in the public interest
 For the plaintiff to suffer damages from a false light publication, there must be dissemination to a reasonable
number of people (i.e. publicity)
 A false light action that could also be brought as a defamation action is subject to the same defenses and
privileges of the defamation action
Interference with business relation
 To establish the interference with business relationship, the plaintiff must show:
i) The existence of a valid contractual relationship between the plaintiff and a 3rd party or a valid business
expectancy of the plaintiff
ii) The defendant’s knowledge of the relationship or the expectancy
iii) Intentional interference by the defendant that induces a breach or termination of the relationship or
expectancy, and
iv) Damage to the plaintiff
 An interferor’s conduct may be privileged when a 3rd party has contacted the interferor with a legitimate business
request regarding the plaintiff and the interferor responds honestly to the 3rd party’s inquiry.

14