Torts I

Class Info

Law School: Liberty University School of Law

Course ID: LAW 511

Term: Fall 2017

Instructor: Prof. Bell

My Grade Earned: B+

A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.

Torts are divided into three categories:

  1. Intentional Torts
  2. Negligence
  3. Strict Liability

Negligence is a cause of action for unintentional torts.

A person acts negligently if the person does not exercise reasonable care under all the circumstances.

Negligence has four elements to it:

  1. Duty
  2. Breach
  3. Causation
  4. Damage

A duty of care is a responsibility to another person that arises from circumstances that create a risk.

Everyone owes a duty of care to all reasonably foreseeable plaintiffs.

A person's duty of care is to use reasonable care under the circumstances. This is also known as a person's standard of care.

Standard of Care

The standard of care required of people is that of what a reasonably prudent person would do under the same or similar circumstances.

The person whose conduct is being evaluated is deemed to have the knowledge that the ordinary prudent person would have.

The standard of care of a person in an emergency is that of a reasonably prudent person in that emergency.

  • The emergency must be sudden and unforeseeable.
  • The emergency must not be of the defendant's own making.

If reasonable precautions can be taken without reducing public benefit, standard of care requires that such precautions must be taken.

Disabled people have the same standard of care as abled people.

The reasonably prudent person has the same physical characteristics as the defendant.

Mentally ill people are held to the same standard of liability. A minority of states make an exception for sudden mental illness.

The majority standard for children is that of "what it is reasonable to expect of children of like age, intelligence, and experience."

  • This should not be applied when the child engages "in an activity which is normally undertaken only by adults, and for which adult qualifications are required."

    Children engaging in inherently dangerous activities normally undertaken by adults are held to an adult standard of care.

Children under five are incapable of negligence under the 3rd Restatement.


A professional is a worker in a business or profession that requires technical knowledge.

Expert testimony is needed in technical cases.

Malpractice is failing to meet professional standard of care.

A professional is held to the objective minimum standard of care of a reasonably prudent member of that profession under the same or similar circumstances.

  • Includes knowledge, training, and skill of an ordinary member of that profession

Lawyers who act in good faith and an honest belief that their advice and acts are well-founded and in the best interest of their client are not liable for mere errors of judgment or mistakes in points of law not yet settled by a court of last resort in his state and on which reasonable doubt may be entertained by well-intentioned lawyers.

Lawyers' conduct may be questioned in:

  • Possession of knowledge or skill
  • Exercise of best judgment
  • Use of due care

Remember, causation still must be shown for negligence.

Medical Malpractice

The standard of care for medical malpractice is that degree of reasonable care and skill expected by ordinary members of that profession under the same or similar circumstances.

Locality Rule

The locality rule states that the standard of care of medical personnel is that of a practitioner in good standing in the local community in which the practitioner practices.

The majority of jurisdictions have adopted a "similar community in similar circumstances" test instead.

Some jurisdictions have also done completely away with the locality rule and adopted a "national standard," especially for board-certified specialists.

Rules of Medical Malpractice
  1. One licensed to practice medicine is presumed to possess the degree of skill and learning which is possessed by the average member of the medical profession in good standing in the community in which he practices, and to apply that skill and learning, or if he does not apply it, he is guilty of malpractice.
  2. Before a physician or surgeon can be held liable as for malpractice, he must have done something in his treatment of his patient which recognized standard of good medical practice in the community in which hie is practicing forbids in such cases, or he must have neglected to do something which such standard requires
  3. In order to sustain a verdict for the plaintiffs in an action for malpractice, the standard of medical practice in the community must be shown by affirmative evidence, and, unless there is evidence of such a standard, a jury may not be permitted to speculate as to what the required standard is, or whether the defendant has departed therefrom.
  4. Negligence on the part of a physician or surgeon in the treatment of a case is never presumed but must be affirmatively proven, and no presumption of negligence nor want of skill arises from the mere fact that a treatment was unsuccessful, failed to bring the best results, or that the patient died.
  5. The accepted rule is that negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical testimony, unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it.
  6. The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant is not sufficient to establish malpractice unless it also appears that the course of treatment followed deviated form on the methods of treatment approved by the standard in that community.
Degrees of Care

Some jurisdictions have "degrees of care." This says that certain people who deal with things known to be dangerous, like people working with explosives, or those who have accepted a special responsibility towards other, such as common carriers, are held to a higher degree of care. This says that they are required to exercise "the highest degree of care" or "the utmost caution characteristic of very careful prudent persons."

Other jurisdictions reject degrees of care though. These would just say that the standard of care is the same, but since this standard is based off the circumstances, such people would merely have to use more care because of the circumstances.

Degrees of Negligence

Some jurisdictions used to distinguish between different "degrees" of negligence. This idea distinguishes degrees of negligence.

This idea has since been rejected by almost all states. It mainly only remains in the law of bailments and in automobile guest statutes.

Recklessness is a similar idea to gross negligence, but it has even higher requirements.

Privity of Contract

Misfeasance is when the defendant attempts performance but misperforms the contract.

Misfeasance attaches liability to misfeasor.


Nonfeasance is when the defendant made a promise but broke it without attempting performance.

Nonfeasance only attaches liability to nonfeasor in fraud cases.

A duty of care for a contract attaches when performance starts. Preparation is not enough. If both actions could be maintained, courts use either election or gravaman.

People generally do not have a duty to rescue, but if one starts to rescue, he has a duty to act like a reasonably prudent person would.

Special relationships where the defendant has actual ability and authority to control a third person impose a duty to rescue.

Special relationships that involve a level of control
  • Common Carrier/Passenger
  • Inn Keeper/Guest
  • Temporary Legal Custodian/Charge
  • Jailer/Prisoner
  • Teacher/Student
  • Coach/Athlete

People generally do not have a duty to warn or protect others from the criminal acts of a third person.

Such a duty can exist when a special relationship exists between the defendant and the plaintiff or between the plaintiff and the criminal actor.

Certain special relationships impose a duty to warn when the danger of third-party criminal acts is known or reasonably foreseeable:

  • Common Carrier/Passenger
  • Innkeeper/Guest
  • Employer/Employee

Others impose a duty to warn of third party criminal acts only where there is an "imminent probability of injury" from a third-party criminal act:

  • Business Owner/Invitee
  • Landlord/Tenant

A duty to warn may exist based on particular knowledge or a special reason to know of the particular type of injury towards a reasonably identifiable victim.

The majority says a duty exists to unborn children.


A failure to conform to the required standard of care is commonly called breach of the duty.

A person does not breach his duty if the danger is not reasonably foreseeable.


A reasonably close causal connection between the conduct and the resulting injury is commonly called causation.

Causation has two elements: causation in fact and proximate cause.

Causation in Fact

Causation in fact is generally determined by the "but for" test.

But For Test

Causation exists when the damage more likely than not would not have occurred but for the defendant's actions.

In statistical evidence, the risk of the harm occurring must have more than doubled.

Substantial factor test applies in "loss of a chance" cases in medical malpractice, based on the jurisdiction.

In cases where two or more actively operating forces, only one of which the defendant was responsible for, combine to bring about the harm, the "substantial factor" test applies instead.

Substantial Factor

Under the "substantial factor" test, causation is determined by whether or not the defendant's act was a "substantial factor" in causing the harm.

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

For hazardous chemical cases, to be a substantial factor requires "evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked."

When two or more causes combine to cause an injury, the defendant is a cause in fact if the defendant's conduct was a substantial factor in causing the injury.

Market Share Liability

When a group of defendants produce a substantial share of the market share of a drug, they may be held liable for harms resulting therefrom for their approximate portion of market share when the specific manufacturer is unknown. Sindell.

This usually only applies to DES cases.

Proximate Cause

The conduct must not have only caused the harm, it must have also been the proximate cause.

There are four different tests that are used in various types of circumstances to determine if there is proximate cause:

  1. Reasonable Foreseeability Rule

    The general test for proximate cause is whether or not it was reasonably foreseeable that the defendant’s conduct would injure the plaintiff. Wagon Mound No. 1.

    An injury doesn't have to be likely or probable in order to be foreseeable.

    The risk to be reasonably perceived defines the duty to be obeyed.

  2. Direct Cause

    Another rule used sometimes in determining the issue of proximate cause is the direct cause rule. Polemis. The direct cause rule provides that a defendant is responsible for all consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act. Such consequences are natural and proximate, and the defendant’s negligence is the proximate cause. The defendant does not have to foresee the exact kind of harm as long as some harm was foreseeable.

  3. Palsgraf Rule

    The rule from Palsgraf is often used when addressing proximate cause issues when the plaintiff is not directly involved in the event or accident that leads to his injury. Palsgraf provides that proximate cause extends liability to those whose conduct harms persons within the zone of the reasonably foreseeable plaintiff. The concept of foreseeability limits liability to the consequences of an act that can reasonably be foreseen. If a person is not a reasonably foreseeable plaintiff, a defendant cannot reasonably foresee an unreasonable risk of harm to him; therefore, the defendant’s negligence would not be the proximate cause of an unforeseeable plaintiff’s injury.

    This is another take on the direct cause rule and uses the reasonable foreseeability rule basically.

  4. A defendant is responsible for harms that have only a small risk if the resulting damage is great. A defendant is liable for a risk that does not have a disadvantage to preventing it, no matter how small the risk is. A defendant may be liable for even a small risk if a great harm would result. Wagon Mound No. 2.
Eggshell Skull Rule

The "eggshell skull" rule states that one is liable for all physical injuries even if another person wouldn't have suffered those injuries. Simply put, a defendant takes the plaintiff as he find him.

Intervening Cause

When a third person intervenes between the defendant's conduct and the plaintiff's injury, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence.


A superseding act breaks the causal nexus of proximate cause. An intervening act may well be superseding if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct.

Rescue Doctrine

To achieve rescuer status one must demonstrate:

  1. The defendant was negligent to the person rescued and such negligence cause the peril or appearance of peril to the person rescued.
  2. The peril or appearance of peril was imminent.
  3. A reasonably prudent person would have concluded such peril or appearance of peril existed.
  4. The rescuer acted with reasonable care in effectuating the rescue.

The rescue doctrine does not apply to professional rescuers for normal risks of their employment when they are working.


Loss, injury, or deterioration, caused by the negligence, design, or accident of one person to another, in respect of the latter's person or property.

There is a "Negligence Formula" established by Justice Hand (sometimes it's called the "Hand Rule"), but it is rarely used:

Calculus of Negligence

Negligence is a function of three variables:

  1. The probability of an incident occurring
  2. The gravity of the resulting injury
  3. The burden of adequate precautions

Carroll Towing.

i.e. It's negligence if Chance × Gravity > Burden.

This isn't commonly used explicitly however.

Violation of Statute

Under the majority rule, causing a harm while violating a statute that imposes a specific duty for protection or benefit of others constitutes negligence per se.

Elements of violation of statute:

  1. Plaintiff is a member of the class of people the legislature intended to protect.
  2. Harm is the type of harm the statute intended to prevent.
  3. It is appropriate to impose tort liability.
    • A series of factors determines whether it's appropriate to impose tort liability based off statute violations:

      • Whether there is a relevant common law duty
      • Whether the statute clearly defines the prohibited or required conduct
      • Whether applying negligence per se to the statute would create liability without fault
      • Whether negligence per se would impose ruinous liability disproportionate to the seriousness of the defendant's conduct
      • Whether the injury resulted directly or indirectly from the violation of the statute

A minority of jurisdictions extend violation of statute to apply to regulations as well.

Three positions on violation of statute:

  1. Majority position of negligence per se:
    Negligence per se
  2. In a minority of jurisdictions, violation of statute only gives prima facie (a rebuttable presumption of) negligence. While both allow excuses, a rebuttable presumption also allows for the defendant to show he was acting reasonably without using an actual excuse.
  3. In another minority of jurisdictions, violation of statute is merely evidence the jury can consider and does not even give a presumption of liability.


  1. The violation is reasonable because of the actor's incapacity
  2. He neither knew nor should have known of the occasion for compliance
  3. He is unable after reasonable diligence or care to comply
  4. He is confronted by an emergency not due to his own misconduct
  5. Compliance would involve a greater risk of harm to the actor or others

List is not exclusive

Some statute violations do not allow excuses

Compliance with statute is not proof it was not negligent, only evidence of due care.

Proof of Negligence

There has to be evidence that the defendant knew of the potential hazard for him to be liable.

When the "operating methods" present a continuous or easily foreseeable danger, notice is not needed for an individual event thereof.

To prove negligence of someone's mode of operation being hazardous, one must prove:

  1. The business had actual or constructive knowledge of a condition on the premises
  2. The condition posed an unreasonable risk of harm
  3. The business did not exercise reasonable care to reduce or to eliminate the risk
  4. The business's failure to use such care proximately caused the plaintiff's injuries
Res Ipsa Loquitur

Some rare occurrences can be sufficient evidence of negligence by the mere fact that they happened at all.

Elements of res ipsa loquitur:

  1. The defendant or his servants have management or (exclusive) control of the thing involved
  2. The accident is the kind of thing that does not occur in the ordinary course of things
    • Based on common experience and general knowledge

Some jurisdictions (& BARBRI) add:

  1. The event cannot have been brought about by the plaintiff's conduct
    • Most jurisdictions do consider plaintiff's action when evaluating causation and comparative negligence.

Res ipsa loquitur cannot apply to drivers colliding with others. Some courts make an exception for common carriers. Does apply when a driver causes an accident by going off the road without apparent cause and causes harm.

Three possible effects of res ipsa loquitur:

  1. It warrants an inference of negligence which the jury may draw or not, as their judgment dictates.
  2. It raises a presumption of negligence which requires the jury to find negligence if defendant does not produce evidence sufficient to rebut the presumption.
  3. It not only raises such a presumption but also shifts the ultimate burden of proof to defendant and requires him to prove by a preponderance of all the evidence that the injury was not caused by his negligence.
Negligent Infliction of Emotional Distress

Negligent infliction of emotional distress has two elements:

  1. Impact or Physical Manifestation
    Impact Rule

    The impact rule requires some immediate physical injury/impact before the plaintiff can recover. The defendant had a duty to those who would be physically impacted by his action.

    The impact rule is the minority rule.

    Physical Manifestation

    The physical manifestation or physical injury requirement requires the plaintiff to suffer a physical symptom as a result of the distress.

    A definite nervous disorder is a physical injury.

    The physical manifestation requirement is the majority rule.

    The physical manifestation requirement has two well-recognized exceptions:

    1. Death-telegram rule, in a minority of states
    2. Negligent interference with dead bodies
  2. Bystander

    A bystander is someone who is:

    1. is closely related to the injury victim;
    2. is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and
    3. as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.
Wrongful Life

Wrongful life is a cause of action by parent or child based on negligent medical treatment that deprives parents of the option to terminate the pregnancy to avoid the birth of a defective child.

Intentional Tort

Intent exists when the defendant acts with knowledge that there is a substantial certainty that the outcome will occur.

  • (On a test, replace "outcome" with the specific harm for that tort.)

Minors have the same standard of intent as adults.

Transferred Intent

Intent transfers between the five torts that fell under writ of trespass:

Nominative and punitive damages can be sought without compensatory damages in an action based on an intentional tort.

List of Intentional Torts

Battery is an intentional touching of another in an offensive or harmful manner.

No injury is required.


Offensiveness is whether it is offensive to an ordinary person, not to one unduly sensitive as to personal dignity. Time, place, circumstances, and people are considered.

Touching an item is considered touching the person if he is holding or otherwise in intimate contact with the item.


Assault is an intentional putting of another in apprehension of an imminent harmful or offensive contact.

False Imprisonment

False imprisonment is:

  1. intentionally
  2. confining or restraining another
  3. in a bounded area, and
    • not a bounded area if there is a reasonable means of escape
      • Must be apparent or known
      • Can't involve exposure or danger to clothes, self, or others
  4. plaintiff is aware of the confinement.
    • or harmed under Restatement of Torts

The individual may be restrained by force or threat of force. Moral persuasion does not constitute force or threat of force.

Conviction of the crime arrested for is a defense for false imprisonment.

Private citizens can legally detain others. They are only liable for helping police if it is not requested.

Shopkeeper's Privilege

A shopkeeper has the privilege to detain a person for a reasonable investigation when he reasonably believes that person has shoplifted.

A investigation's reasonableness is determined by whether it was inside or outside, how long it lasted, and what the shopkeeper did to investigate.

The majority rule says that a shopkeeper cannot condition release on confession to the crime or payment.

Reasonable force, short of bodily harm, may be used to detain the suspected shoplifter.

Intentional Infliction of Emotional Distress

[F]our elements . . . must coalesce to impose liability for intentional infliction of emotional distress:

  1. The conduct must be intentional or reckless;
  2. The conduct must be extreme and outrageous;
  3. There must be a causal connection between the wrongful conduct and the emotional distress;
  4. The emotional distress must be severe.
Outrageous Conduct

Outrageous conduct is "so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community." It is so severe that a person of ordinary sensibilities would suffer emotional distress.

For a defendant to be liable for injury to a close relative of the plaintiff's, the plaintiff must have been present and a close relative, and the defendant must have known that the plaintiff was present and a close relative.

The Restatement 2nd of Torts gives an alternative where the plaintiff also received harm.

If the vulnerability is apparent or known to the defendant, the plaintiff's particular vulnerability will be taken into consideration.

Sometimes IIED is called "outrage".

Cannot be liable for for both NIED and IIED.

Trespass to Land

Trespass to land is the:

  1. unauthorized
  2. entry onto
    • Volitional act
  3. the land of another
    • Mistake is not a defense.

Trespass is a tort against the possessor of the land.

Related causes of action:

  • Ejectment

    Ejectment is a cause of action similar to trespass filed by the owner of land against someone who is wrongly possessing the land.

  • Quiet Title

    An action to quiet title is a cause of action similar to trespass filed by the owner of land against someone who falsely claims to possess the owner's land.

  • Nuisance

    Nuisance is a cause of action similar to trespass filed by the possessor of land against someone who creates a condition that interferes with the possessor's use or enjoyment of the property.

Air travel is only a trespass when an aircraft "enters into the immediate reaches of the air space next to the land and . . . interferes substantially with the other's use and enjoyment of the land."

Trespass to Chattel

Trespass to chattel is the:

  1. intentional
  2. interference with or dispossession of
  3. the chattel of another
  4. resulting in damage thereto.
    • Dispossession itself can be a damage if it is for a sufficient length of time.

A victim of a trespass to chattel must accept the return of the chattel.


Conversion is the:

  1. intentional
  2. exercise of dominion of control
    • There must be very substantial deprivation of possession rights.
      § 222A What Constitutes Conversion
      1. In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
        1. the extent and duration of the actor's exercise of dominion or control;
        2. the actor's intent to assert a right in fact inconsistent with the other's right of control;
        3. the actor's good faith;
        4. the extent and duration of the resulting interference with the other's right of control;
        5. the harm done to the chattel;
        6. the inconvenience and expense caused to the other.
      § 223 Ways of Committing Conversion

      A conversion may be committed by intentionally

      1. dispossessing another of a chattel as stated in §§ 221 and 222;
      2. destroying or altering a chattel as stated in § 226;
      3. using a chattel as stated in §§ 227 and 228;
      4. receiving a chattel as stated in §§ 229 and 231;
      5. disposing of a chattel as stated in § 233;
      6. misdelivering a chattel as stated in §§ 234 and 235;
      7. refusing to surrender a chattel as stated in §§ 237-241.
  3. over the chattel of another
  4. which substantially interferes with the other's right of control.

In conversion, the convertor takes and uses the chattel as his own, affecting the chattel in a way inconsistent with the rights of the true owner.

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

Nominal damages are allowed for conversion.

Using the chattel of another beyond the scope permitted can constitute a conversion.

  1. Information gathered and arranged at some cost and sold as a commodity on the market
  2. Ideas formulated with labor and inventive genius, as in the case of literary works or scientific researches
  3. Instruments of fair and effective commercial competition

A good faith purchaser for value can be a convertor if the seller stole the item.

  • A bona fide purchaser is protected in a sale from a merchant "who deals in good of that kind".
  • In fraud, title does not pass, so the good faith purchaser is not a convertor.

True owner's right to rescind is terminated when title and possession is passed.


A defense to an intentional tort is called a privilege.

Shopkeeper's Privilege

A shopkeeper has the privilege to detain a person for a reasonable investigation when he reasonably believes that person has shoplifted.

A investigation's reasonableness is determined by whether it was inside or outside, how long it lasted, and what the shopkeeper did to investigate.

The majority rule says that a shopkeeper cannot condition release on confession to the crime or payment.

Reasonable force, short of bodily harm, may be used to detain the suspected shoplifter.


Necessity is a privilege that allows for trespass or destruction of property to preserve a greater interest.

There is public necessity and private necessity.

Public Necessity

Public necessity is a privilege that allows for trespass or destruction of property to avert an apparent public disaster.

Public necessity requires an imminent danger and a real public necessity.

Plaintiff cannot recover if there was a public necessity unless the tort constituted a taking.

Private Necessity

Private necessity allows for the destruction of another's property to preserve one's own property.

Private necessity allows for recovery of actual damages, but not for trespass.

Authority of Law

Authority of law is a privilege for tortious conduct when the defendant is authorized by law do the conduct.

Authority of law is not a valid defense if excessive force is used in carrying out the conduct.


A number of relationships in which the necessity of some orderly discipline give person who have the control of others the privilege of exercising reasonable force and restraint upon them.

What force is reasonable is determined by the child's age, sex, and the seriousness of the behavior.


The privilege of justification is a generic term for a defense to a tort in circumstances where it would be unfair to hold defendant liable when no traditional defense applies.