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# The Outline

> Outline based on classes

# TORTS I: ATTACK OUTLINE

## I. INTENTIONAL TORTS

**Prima Facie Elements:** To recover, Plaintiff must prove **Act**, **Intent**, and **Causation**.

### 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)

**Effect:** A valid affirmative defense is a **complete bar to recovery**.

* **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

To establish negligence, Plaintiff must prove: **Duty**, **Breach**, **Causation**, and **Damages**.

### ELEMENT 1: DUTY

**General Rule:** A duty to conform to a specific standard of conduct to protect the Plaintiff against an **unreasonable risk of harm**.

**Establishing 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.

**Special Duty Rules:**

* **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

**Definition:** Conduct falling below the standard of care of a **reasonable, prudent person under the circumstances**.

**Standards of Care:**

* **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).

**Proving Breach:**

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

Plaintiff must prove **both** Causation in Fact and Proximate Cause.

#### 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

**Structure (IRAC):**

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.

**Tips:**

* **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.