“An issue is a point of law upon which the facts turn.”

Tort: A civil wrong that has a remedy in law.

Tort describes a category of civil actions that governs situations where one individual claims another individual has improperly caused physical, emotional, economic or dignitary harm. (PEED) or (PEER where ‘R’ stands for reputation.)

Tort law is generally divided into 3 categories:

Intentional – 1L covers defenses to these as well.

Strict Liability – No fault claims.

Negligence – Bulk of 1L – Imposition of liability based on failure to behave as a reasonably prudent person.

Look at elements of a prima facie case. cause of action or defense that is sufficiently established by a party’s evidence to justify a verdict in his or her favor. / “at first appearance”. (action by Δ)

  1. If a π cannot prove each and every element, then the answer is that Δ has no liability in tort, and therefore π will lose.
  2. If π can prove every element of the claim, then review if Δ has any affirmative defenses. If Δ does have affirmative defense, then answer is that Δ has no liability in tort and will prevail.

Elements > Defenses > Liability (‘Yes’ or ‘No’)

Other Torts 1L topics include:

Vicarious liability



Intentional torts (7 types) and their defenses.

As a general rule, every intentional tort involves a volitional act done with intent.

These are the core elements of an intentional tort:

  1. Volitional act – any act done under Δ’s control.
  2. Causation – Tortious act needs to be the cause of harm.
  3. Intent – generally synonymous with purpose.
  1. Specific Intent: Δ: Acted purposely to bring about the specific consequence
    1. General Intent: Δ: Knew with SUBSTANTIAL CERTAINTY that consequences will result from his act.
  1. In most cases intent is synonymous with purpose.
    1. Intent can be tricky – substantial certainty test used in those cases –
      1. Example: baseball player throws bat into stands and injures someone – may not have intended to hit the injured party, but reasonable person would know with “substantial certainty” that the outcome (bat hitting someone) was probable. Answer to this in a tort problem is to say that Δ intended the outcome.
    1. Experience, mental capacity, understanding are factors.
    1. If substantial certainty cannot be shown, then Δ not liable under assault or battery torts; may still be negligent.
    1. Intoxification – voluntary intoxification does not vitiate intent (Δ is still responsible).
  • Transferred intent– going out to shoot a wolf and killing someone’s dog. Intent can transfer from victim to victim, or tort to tort.
  1. Victim to victim
    1. Tort to tort

Example – Carl the high jumper wants to practice by jumping over the wall that separates his and his neighbor’s property. He jumps over the fence and lands on his neighbor’s wife. Wife sues for battery. Can she prove intent?

In this scenario, Carl intended a trespass on land. This intended tort becomes an actual tort (battery) when he lands on wife. The intended victim also transfers to the actual victim (neighbor>wife).

Volitional act is any act done under Δ’s control.


  1. Harmful or offensive contact with π’s person.
    1. Harmful contacts pretty easy to recognize;
    1. Test for offensive contact is if the contact is “unpermitted”; this covers contacts that may not be obviously physically harmful. Reasonableness is a factor here.
      1. π’s super/hyper sensitivities should not be considered unless Δ knew about them in advance.
    1. Making contact with anything that is physically connected with the π’s person counts. (Knocking a plate out of someone’s hand suffices.)


Prof’s definition: An act by the Δ creating a reasonable apprehension of an immediate or contact to the π’s person.

  1. Reasonable apprehension of immediate contact;
    1. Do not confuse apprehension of a contact with fear or intimidation. π (victim) does not need to be scared or intimidated. Very small guy throws a punch at big guy that does not land…. big guy still may have reasonable apprehension.)
  2. Apprehension must be of an immediate nature (immediacy).
    1. Words alone (threats) are generally not sufficient.
    1. You need words coupled with contact ( a verbal threat with fist shaking)

False imprisonment (FI)

Prof’s definition: An act or omission by the Δ that confines or restrains the π to a bounded area.

1. A sufficient act of restraint to a bounded area; (use common sense here)

  1. A threat to use force is enough;
    1. Inaction can be enough. Doing nothing at all can be enough if there was a prior understanding between π and Δ that Δ would act for π’s benefit. (See Whitaker case)
  2. Generally, π needs to be aware of the confinement as it is taking place.
    1. Rare exceptions for being physically harmed by the confinement.
  3. Length of time of confinement is IRRELEVANT for proving the prima facia case. This may be important for damages, but not for proving false imprisonment.

What constitutes a bounded area:

  1. Reasonable escape – Area is not bounded in any case if there is a reasonable means of escape that π knows about (is apparent to π).
  2. Freedom of movement must be restricted;
    1. Needs to be more than a mere inconvenience; walking into an alley with a dead end and having to walk back does not qualify.

Intentional Infliction of Emotional Distress (IIED)

  1. Outrageous conduct
    1. Continuous conduct. Being insulted hour after hour, day after day, week after week. One insult is NOT outrageous conduct.
  1. They type of π can make a difference (Insulting an adult vs insulting a young child.) Specifically, insults against:
    1. Young children, the younger the easier;
    1. Elderly people
    1. Pregnant women.
  1. The type of Δ can make a difference;
    1. Common carriers hurling an insult is outrageous;
    1. Innkeepers (hotel clerks for example)

To invoke these special rules you must be a passenger or a guest.

  • Damages – severe and substantial emotional harm, must be shown to prove case.
  • Intent – π can prove intent in 3 ways –
    • by showing recklessness – reckless disregard with a high probability of emotional harm.
    • Substantial certainty
    • Purpose

There are four (4) elements to an IIED tort:

  1. The conduct must be intentional and/or reckless; (Volitional Act + Intent)
    1. The conduct must be extreme and outrageous;
      1. There must be a causal connection between the wrongful conduct and the emotional distress; (Causation)
      1. The emotional distress must be severe.

B and D are the distinguishing criteria for an IIED tort. A and C are elements of all intentional tort categories.

Note – transferred intent is normally NOT available to prove an IIED claim.  Note that, e.g., in the case of Δ beating up π’s relative, that is actually easily proven as direct intent by using the substantial certainty test. Lynching would be another example of same, either via purpose or substantial certainty (public display is a public message).  Transferred intent only applies to Battery, Assault, False Imprisonment, Trespass To Land and Trespass to Chattel.  Example – Δ shoots at dog (TTC) > bullet strikes boy (Battery)

The last 3 intentional torts focus on property.

Trespass to Land

Rule – “ The physical invasion of the π’s real property, including reasonably useable airspace, sub-space, and surface where π can make reasonable use.”

  1. Δ’s intent was to move in a certain direction, i.e., to move forward by conscious decision, and that Δ did enter π’s property.

Trespass to Chattels

Rule – “Act by the Δ that interferes with the π’s right of possession in a chattel.”

  • Act of invasion to personal property with some damage
  1. If you see some damage it’s trespass to chattels, a whole lot of damage or complete destruction is conversion.

Can either directly damage the chattel (more than 50%) is conversion, or dispossession of chattel.


Rule: “An act by the Δ that interferes with the π’s right of possession in a chattel.”

  • Act of invasion to personal property with a great deal of destruction
  1. Damages for conversion include physical (scratch the briefcase, generally must reflect >50%)
    1. Serious interference with possessory rights (hold the briefcase for a month)

Generally, the longer Δ has used/held the property, the more likely it can be characterized as a serious interference of possessory rights to make out a claim.

Damages are generally the fair market value at the time of conversion.

Affirmative Defenses  – (In essence these are assertions of privilege.)

  1. Consent (Express or Implied)
    1. Express Consent – A clear manifestation of consent.
    1. Implied Consent – Consent which a reasonable person would infer from custom and usage or the plaintiff’s conduct.

π’s consent to Δ’s conduct is a defense.”

  • A good defense to all intentional torts.
  1. First element to test – CapacityChild cannot consentπ mentally impairedInvalid if coerced or forcedInvalid if consent given by fraud or mistakeExpress consentπ said “go ahead an do it”.  (If you see this on a test then check CAPACITY). Implied consentCan arise by custom or usage;
    1. Generally, one cannot consent to a criminal act.
    1. One can exceed the scope of consent. Exceedance of scope can turn into an intentional tort.
  2. Self-defense
  1. Generally, a person is justified in using reasonable force to prevent what she reasonably believes to be an imminent threat of force against her.
  1. Reasonable belief test
  1. Self-defense is available as a privilege only if Δ reasonably believed he was under attack AND if a reasonable person in Δ’s position would have believed they were under attack. This defense requires the subjective belief and objective reasonableness to take advantage of this defense.
  1. Reasonable forceDeadly force – force likely to cause death or bodily harm (most 1L cases in this are involve the use of firearms)
  1. Use of deadly force considered reasonable only if Δ reasonably believed that she is facing imminent threat of deadly force herself. Response must be commensurate with the threat.
  • Generally, a person has No duty to retreat. In most cases you can stand your ground and defend yourself. Courts are divided, but modern trend is that you do need to retreat before using deadly force against an assailant, unless you are in your own home.
  • Generally, self-defense is NOT available to the first aggressor, unless it is a defense against the use of deadly force.
  • Defense of others
    • Generally, a person is entitled to defend another person from attack in the same manner and under the same conditions as the person being attacked could defend herself.
  1. Test for this is to determine if the person being aided would have been able to assert self-defense, i.e., in effect place Δ in the defended persons place and then apply the tests for Self-defense.
  1. What if Δ mistakenly believes that a person is being attacked; most courts will allow Δ to assert the privilege of defense of others if the mistaken belief was a reasonable one.
  • Defense of property
  1. Generally, one can use reasonable force to protect his real or personal property;
  • Deadly force CAN NEVER be used to protect property alone. (Note: Defense of property is not self-defense.)

(See Katko v. Briney)

**** Hot pursuit doctrine – You can only use reasonable force if you are in hot pursuit of someone who has taken property from you. (Someone steals your laptop in the moment, versus you see someone with your laptop two weeks later.) ****

Detention of suspected shoplifter – A shopkeeper can detain a suspected shoplifter in a reasonable manner (using reasonable force, no deadly force) for a reasonable period of time. The tort that might be raised against the shopkeeper is nothing more than FI (False Imprisonment), and the defense the shopkeeper can raise is Defense of Property.

You can always use reasonable force to protect personal property, but never deadly force alone.

  • Necessity
  1. Necessity can only be used as a defense for a property tort (Trespass to Land, Trespass to Chattel, or Conversion). Two types:
  1. Public Necessity – If what is being done benefits a large number of people, it is considered public necessity and is an unlimited and unqualified privilege (defense). Example – fire raging in the town and mayor orders the burning of a series of house to prevent the spread of fire.
  1. Private necessity – A private necessity is where Δ acting to protect himself or a handful of others. This sort of privilege is qualified in that Δ is responsible to pay for any damages that result.
  • Authority of Law
    • Police officers, military personnel, prison officials, regulatory inspectors, or officials at mental health facilities may act under authority of law and engage in conduct that would otherwise be tortious.
    • Limits do apply, e.g., error, required due diligence in identifying the correct party(ies), etc.
  • Discipline
    • Generally for a parent or one acting in a parental role.
      • Several factors used to determine if conduct falls within or outside the privilege:
        • Age, sex, and condition of child; nature of offense and apparent motive; influence of child’s conduct on other children in the family; whether force or confinement reasonably necessary/appropriate to compel obedience; whether act is disproportionate to behavior.
    • This privilege extends to those who are assigned or temporarily responsible for child’s care;
      • Less force acceptable for caretakers versus parents.

Intentional Tort Analysis Approach:

(Note: This is geared to answering simple issue questions like, “Is this a battery?”)

Battery Analysis:

  • Battery TestVolitional Act;Intent – Specific or GeneralHarmful/Offensive ContactCausation
  • Defense Tests:ConsentSelf DefenseDefense of OthersDefense of Property

Assault Analysis:

  1. Assault Test
  2. Volitional Act;
  3. Intent – Specific or General
  4. Apprehension (Reasonable/Immediate)
  5. Causation
  • Defense Tests:
  • Consent
  • Self Defense
  • Defense of Others
  • Defense of Property

Negligence (fr next quarter)



Cause of fact

Defamation Analysis notes:

  1. Written or Spoken?
  2. Is this a matter of public concern? If yes, then Constitutional discussion?
  3. Is the person a public figure? If yes – Falsity and Actual Malice (New York v. Sullivan)

Common Law Defamation

  1. Defamatory statement
  2. Of and concerning the P
  3. Publicated to a 3rd Party
  4. Damages


Appropriation – Unauthorized use of a person’s name or likeness for the defendant’s commercial advantage.

Intrusion – Unauthorized interference with a person’s seclusion that the reasonable person would find highly offensive. Alternatively – The act of prying or intruding that is highly offensive to the reasonable person.

False Light – The wide publication of information that identifies the plaintiff and places the plaintiff in a false light that is highly offensive to a reasonable person.

  1. Defendant publishes information widely
  2. That Identifies the plaintiff; and
  3. It places the plaintiff in a false light that is highly offensive to a reasonable person.

Publication of private fact – The public disclosure of a private fact about the plaintiff that would be highly offensive to a reasonable person.

Here ends the intentional torts…..next begins Negligence.


Rule:  Negligence is conduct that creates or fails to avoid unreasonable risk of harm to others, or restated, negligence is a failure to exercise care that is reasonable under the circumstances.

  1. Intentionally taking a risk of contact is not the same as a purpose or certainty that such contact will result.

Brown v. Kendall (1850) sets the standard of care as that of the reasonable and prudent person.

To prove a prima facie case of negligence, the plaintiff must show duty, breach of duty, causation (both actual and proximate) and damages.

Rule: Generally, duty may be defined as an obligation to which the law will give recognition and effect, to conform to a particular standard of conduct toward another. When the actors conduct creates

  1. Duty – That the Δ owed a duty of care, standard or otherwise, to not subject plaintiff to an unreasonable risk of harm.
    1. Duty can arise from:
      1. Contract;
      1. Statute;
      1. Common Law;
      1. Special relationship of the parties where the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff.
  • Breach of duty – That the Δ through act or omission failed to behave in reasonable accord with the duty;
    • Causation – Both actual (“but for”) and proximate (foreseeable π) causation;
      • Actual uses the basic “but for” test;
      • Proximate is measured in foreseeability, with the intent to differentiate what is reasonably (objectively) foreseeably versus simply fortuitous outcomes (e.g., buying a lotto ticket and winning one may initially argue foreseeability, but given the actual odds it objectively is fortuitous. Objectively fortuitous events do not tend to lend themselves to negligence liability.) Consider the speeding driver who arrives early to a destination and is hit  by a plane suffering an engine failure.
    • Damages – That π was actually harmed.
    • No valid defenses.
      • Affirmative defenses include:
        • Plaintiff’s fault – in most states reduces damages but does not automatically void claim;
        • Express assumption of risk;
        • Implied assumption of risk (less focus here in the modern view);
        • Statute of Limitations.

Note: Whether the Δ owes a duty is determined by judges; all other factors are determined by juries, unless “the answer is so clear that reasonable people cannot differ.” Consequent of this (real-world):

  1. Δ can argue that no duty of care owed and can raise the issue in a motion to dismiss prior to trial. If judge agrees, no trial.

Palsgraf –

Cardozo (majority view) – That liability is limited to the reasonably forseeable π, i.e., π’s in the zone of danger.

Andrews (minority view) – That liability is not limited by foreseeability – if you owe a duty to one you owe a duty to all. Note: but you must still be able to prove that the duty was owed and breached.