​

TORTS I: ATTACK OUTLINE

​

I. INTENTIONAL TORTS

​

A. Intent (The Mental State)

• Specific Intent: An actor intends the consequences of his conduct if his goal is to bring about those consequences.
• General Intent: An actor intends the consequences of his conduct if he knows with substantial certainty that those consequences will occur.
• Transferred Intent: Intent can transfer between torts (e.g., Assault $\rightarrow$ Battery) or persons (e.g., A $\rightarrow$ B). Applies only to: Battery, Assault, False Imprisonment, Trespass to Land, Trespass to Chattels.
• Mistake Doctrine: Mistake does not negate intent.
• Mental Illness: Mental illness does not negate intent.

​

B. The Torts against Person

​

1. Battery

• Rule: An intentional act that causes a harmful or offensive touching of the plaintiff’s person.
• Touching: Includes contact with items intimately connected to the plaintiff’s person (e.g., a plate, clothing).

​

2. Assault

• Rule: An intentional act that places the plaintiff in imminent apprehension of a harmful or offensive touching.
• Apparent Ability: Plaintiff need only demonstrate that defendant had the apparent ability to bring about harmful contact; actual ability is not required.
• Words Alone: Words alone are insufficient; they must be accompanied by an overt act.

​

3. False Imprisonment

• Rule: An intentional act (or omission where there is a duty to act) that confines or restrains the plaintiff to a bounded area.
• Awareness: Awareness of confinement is a requisite (unless harmed).
• Bounded Area: Exclusion (not letting someone in) is not false imprisonment.

​

4. Intentional Infliction of Emotional Distress (IIED)

• Rule: An intentional act by the defendant that is extreme and outrageous conduct that causes the plaintiff to suffer severe emotional distress.
• Extreme and Outrageous: Conduct that transcends all bounds of decency tolerated by a civilized society.
  • Note: Mere insults are insufficient unless there is a Special Relationship (Common Carrier/Innkeeper) or Known Sensitivity.
• Bystander IIED Recovery:
  1. Plaintiff was present.
  2. Plaintiff is a close relative of the injured party.
  3. Defendant knew the plaintiff was present and a close relative.

​

C. The Torts against Property

​

1. Trespass to Land

• Rule: An intentional act that causes a physical invasion of the plaintiff’s real property.
• Intent Scope: Intent to do the underlying act (e.g., walking), not the intent to trespass.
• Damages: Actual damages are not a prima facie element.

​

2. Trespass to Chattels

• Rule: An intentional act by the defendant that interferes with the plaintiff’s right of possession in a chattel.
• Standard: Requires (1) harm/damage to the chattel OR (2) dispossession for a long enough period.

​

3. Conversion

• Rule: An intentional act interfering with plaintiff’s right of possession that is so serious as to require the defendant to pay the full value of the chattel.
• Remedy: Fair market value at the time of conversion (forced sale).

​

II. DEFENSES TO INTENTIONAL TORTS (Privileges)

• Consent:
  • Express: Verbal or written permission.
  • Implied (Apparent): Exists when a reasonable person would infer consent from plaintiff’s conduct.
  • Scope: Invalid if act exceeds scope of consent.
  • Vitiation: Fraud or Duress vitiates consent.
• Self-Defense: Reasonable belief of attack allows reasonable force for protection.
• Defense of Property:
  • One may use reasonable force to prevent the commission of a tort against property.
  • Deadly Force: One may never use deadly force solely to defend property.
• Shopkeeper’s Privilege: Privilege to detain for investigation if:
  1. Reasonable Belief of theft.
  2. Conducted in a Reasonable Manner (no deadly force).
  3. Detained for a Reasonable Time.
• Public Necessity: Act is for the public good; defense is absolute (no compensation owed).
• Private Necessity: Act to save own interest; relieved of technical trespass but must compensate for actual damages.

​

III. NEGLIGENCE: PRIMA FACIE CASE

​

ELEMENT 1: DUTY

1. Affirmative Act: Engaging in activity creating risk to Foreseeable Plaintiffs in the Zone of Danger.
2. Negligence Per Se: Violation of statute (see Breach).
3. Privity of Contract: Contractual relationship.

• Nonfeasance (No Duty to Rescue): Generally no duty to rescue unless defendant controls the instrumentality or has a special relationship.
• Pure Economic Loss: In the absence of physical impact, there is generally no duty of care for pure economic loss.
• NIED (Direct Victim): Requires a definite and objective physical manifestation of severe emotional distress.
• NIED (Bystander) - Thing Rule:
  1. Close Familial Relationship.
  2. Contemporaneous Observance (Present and Aware).
  3. Serious Emotional Distress (beyond disinterested witness).
• Tarasoff Warning: Therapist owes duty to warn intended victim if patient poses serious danger of violence.

​

ELEMENT 2: BREACH

• Physical Characteristics: Taken into account (e.g., reasonable blind person).
• Mental Illness: Not taken into account.
• Minors: Reasonable minor of like age, intelligence, experience (Unless Adult Activity).
• Professionals: Ordinary member of the profession in good standing (Objective; Novice defense fails).

1. Learned Hand Formula: Breach if $B < P \times L$ (Burden < Probability $\times$ Loss).
2. Negligence Per Se: Presumption of duty/breach if:
   • Statute provides criminal penalty.
   • Plaintiff is in Class of Persons.
   • Harm is Type of Harm statute prevents.
3. Res Ipsa Loquitur: “The thing speaks for itself.”
   • Accident of type that doesn’t occur without negligence.
   • Instrumentality in sole and exclusive control of defendant.

​

ELEMENT 3: CAUSATION

​

A. Causation in Fact (Actual Cause)

• The “But-For” Test: “But for the defendant’s negligent conduct, the plaintiff would not have been injured”.
  • Applicability: Single Defendant cases and Concurrent Causes (where two acts combine but neither alone acts as a sufficient cause).
• Substantial Factor Test:
  • Applicability: Joint Causes where several causes concur and any one alone would have been sufficient to cause the injury.
  • Rule: If the defendant’s conduct was a substantial factor in causing the injury, they are liable.
• Alternative Liability (Burden Shifting):
  • Applicability: Two or more defendants act negligently, but there is uncertainty as to which one caused the injury (e.g., Summers v. Tice).
  • Rule: The burden of proof shifts to the defendants to exculpate themselves; if they cannot, they are liable.

​

B. Proximate Cause (Legal Cause)

• Definition: A legal doctrine that cuts off liability for harm—even though the harm was in fact caused by the defendant—because it would be unfair or unjust to hold the defendant liable.
• Direct Cause: An uninterrupted chain of events from the negligent act to the injury.
  • Rule: Defendant is liable if the particular type of harm was foreseeable.
• Indirect Cause (Intervening Acts): An intervening force comes between the negligence and the injury.
  • Superseding Act: An act that is extraordinary, unforeseeable, and independent. It cuts off the original defendant’s liability.
  • Non-Superseding Act: An act that is a normal, foreseeable consequence flowing naturally from the situation. The original defendant’s liability continues.
• Rescue Doctrine: “Danger Invites Rescue.”
  • Rule: A tortfeasor who creates peril is liable to a person injured attempting to rescue another. Rescuers are foreseeable plaintiffs.
• Eggshell Skull Doctrine: Defendant must “take their plaintiff as they find them.” Liable for full extent of damages even if plaintiff is uniquely fragile.

​

ELEMENT 4: DAMAGES

• Requirement: Plaintiff must suffer actual damages (monetary/physical). Nominal damages are insufficient for negligence.
• One Satisfaction Rule: Plaintiff may sue multiple defendants but is limited to one full satisfaction of the judgment.
• Aggravation Rule: A defendant is liable only for the aggravation of a pre-existing injury, not the original condition.

​

IV. MULTIPLE TORTFEASORS

​

A. Liability Theories

• Joint and Several Liability:
  • Rule: Each tortfeasor is liable to the plaintiff for the entire damage.
  • Applicability:
    1. Concert of Action: Tortfeasors acting in unison/common goal.
    2. Indivisible Injury: Separate acts cause a single, indivisible injury.
• Several Liability (Comparative Fault):
  • Rule: Each tortfeasor pays only the portion of damages representing their percentage of fault.
  • Applicability: Jurisdictions that have abolished Joint and Several liability.

​

B. Allocation of Loss (Defendant vs. Defendant)

• Contribution:
  • Definition: A device where responsibility is apportioned among those at fault.
  • Rule: A joint tortfeasor who pays more than his share of damages may seek contribution (partial reimbursement) from other tortfeasors.
• Indemnity:
  • Definition: Shifting the entire loss from one tortfeasor to another.
  • Trigger: Typically arises from Contract or Vicarious Liability.

​

V. EXAM WRITING STRATEGY

1. Identify Parties: Clearly label Plaintiff v. Defendant.
2. Identify Cause of Action: (e.g., Battery, Negligence).
3. Prima Facie Elements: Analyze in order (Duty $\rightarrow$ Breach $\rightarrow$ Causation $\rightarrow$ Damages).
4. Affirmative Defenses: Address only if facts trigger them.

• Triaging: Do not argue “dead issues” (non-issues). Focus on “hot” issues.
• Fluidity: Memorize Black Letter Law definitions to recite them fluidly.
• Problem Solve: Outline first to solve the legal problem, then write to communicate the solution.