Juris Doctor (JD) Torts Syllabus

What is the attractive nuisance doctrine?

A landowner may be liable for injuries to trespassing children caused by an artificial condition if: (1) a dangerous condition the owner knows/should know of exists, (2) the owner knows/should know children frequent the area, (3) the condition is likely to cause injury (children can't appreciate the risk), and (4) the cost of remedying it is slight compared to the risk.

State the Hand Formula (BPL) for determining breach.

A defendant breaches the duty of care when the Burden of taking precautions (B) is less than the Probability of harm (P) multiplied by the gravity of the Loss/injury (L): liability when B < P × L (Judge Learned Hand, United States v. Carroll Towing).

What is negligence per se and its effect?

Where a statute imposes a specific duty for the protection/benefit of others, violation of the statute establishes the standard of care (and breach) if the plaintiff is in the class meant to be protected and the harm is of the type the statute aimed to prevent. It conclusively establishes duty and breach (still need causation and damages).

What are the elements of res ipsa loquitur?

(1) The accident is of a type that ordinarily does not occur absent negligence, and (2) the instrumentality causing the injury was in the exclusive control of the defendant (and the plaintiff did not contribute). It creates an inference (permissible) of breach, allowing the case to reach the jury.

Distinguish actual cause from proximate cause.

Actual cause (cause-in-fact) is the factual link, tested by the 'but-for' test (or substantial factor test for multiple causes). Proximate (legal) cause limits liability to foreseeable harms/plaintiffs—a defendant is liable only for the foreseeable consequences of the breach.

State the 'but-for' test and the 'substantial factor' test for actual causation.

But-for test: the injury would not have occurred but for the defendant's conduct. Substantial factor test: used when multiple causes combine and each alone would have been sufficient—a defendant is liable if its conduct was a substantial factor in bringing about the harm.

What is the 'eggshell (thin) skull' rule?

A defendant takes the plaintiff as found and is liable for the full extent of the plaintiff's injuries, even if unforeseeably severe due to a pre-existing condition or vulnerability. 'You take your victim as you find him.'

What are common intervening/superseding causes affecting proximate cause?

Foreseeable intervening forces (e.g., subsequent medical negligence, rescuers, ordinary negligence of others) do not cut off liability. Unforeseeable, independent intervening causes (e.g., intentional crimes, acts of God) are superseding and break the chain of proximate causation.

What types of compensatory damages are recoverable in a negligence action?

Special (economic) damages: medical expenses, lost earnings, and property damage. General (non-economic) damages: pain and suffering and loss of enjoyment of life. Plaintiff must prove damages with reasonable certainty; nominal damages are not available in negligence.

What is the plaintiff's duty to mitigate (avoidable consequences)?

A plaintiff cannot recover for damages that could have been avoided by reasonable effort (e.g., seeking reasonable medical treatment). Damages attributable to the failure to mitigate are not recoverable, but this does not bar the entire claim.

Compare contributory negligence, pure comparative negligence, and modified comparative negligence.

Contributory negligence: any negligence by the plaintiff completely bars recovery (minority). Pure comparative: plaintiff's recovery is reduced by their percentage of fault (recovery even if 99% at fault). Modified comparative: plaintiff recovers reduced damages only if their fault is below the threshold (50% or 51%), otherwise barred.

What is the assumption of risk defense (express and implied)?

Express: plaintiff explicitly agrees (often by contract/waiver) to relieve defendant of a duty. Implied: plaintiff knowingly and voluntarily encounters a known risk. In comparative-fault jurisdictions, implied assumption of risk is often merged into the comparative-fault analysis.

What is the 'last clear chance' doctrine?

A plaintiff's rebuttal to contributory negligence: even if the plaintiff was contributorily negligent, the plaintiff may still recover if the defendant had the last clear opportunity to avoid the harm but failed to do so. It is essentially obsolete in comparative-fault jurisdictions.

What are the three categories of activities subject to strict liability?

(1) Abnormally dangerous (ultrahazardous) activities, (2) keeping of certain animals (wild animals; domestic animals with known dangerous propensities), and (3) defective products (products liability). Liability attaches without proof of fault/negligence.

What factors define an 'abnormally dangerous activity' for strict liability?

Factors include: a high degree of risk of serious harm, the inability to eliminate the risk by reasonable care, the activity is not a matter of common usage, the activity is inappropriate to the place where it is conducted, and its danger outweighs its value to the community.

State the strict liability rules for injuries caused by animals.

Wild (non-domesticated) animals: owner is strictly liable for harm resulting from the animal's dangerous propensities. Domestic animals: owner is strictly liable only if they knew or had reason to know of the animal's dangerous (abnormal) propensities ('one free bite' rule). Trespassing livestock causing property damage: strict liability.

What is the scope of strict liability for abnormally dangerous activities (the harm-within-the-risk rule)?

Strict liability extends only to harm that results from the kind of danger that makes the activity abnormally dangerous (the harm must flow from the normally dangerous propensity). Unforeseeable intervening causes can cut off liability, and the plaintiff must be a foreseeable plaintiff.

What are the five theories of recovery in a products liability case?

(1) Intent (battery), (2) Negligence, (3) Strict products liability, (4) Implied warranties (merchantability and fitness for a particular purpose), and (5) Express warranty and misrepresentation.

What are the elements of a strict products liability claim?

(1) The defendant is a commercial supplier (merchant) of the product, (2) the product was defective when it left the defendant's control, (3) the defect actually and proximately caused the injury, and (4) the plaintiff suffered damages. The product must not have been substantially altered, and it must be used in a foreseeable manner.

Identify and define the three types of product defects.

(1) Manufacturing defect: the product differs from the manufacturer's intended design (a flaw, judged against the product's own specs). (2) Design defect: the entire line is dangerous; tested by the risk-utility test (a reasonable alternative design existed) or consumer-expectation test. (3) Warning defect (failure to warn): inadequate instructions/warnings about non-obvious risks.

What is the consumer-expectation test versus the risk-utility test for design defects?

Consumer-expectation test: a product is defective if it is more dangerous than an ordinary consumer would expect. Risk-utility test (majority): a product is defective if the risks of the design outweigh its utility, generally requiring proof of a reasonable, safer alternative design that was economically and technologically feasible.

In strict products liability, who may be a defendant and who may be a plaintiff?

Defendants: any commercial supplier in the distribution chain (manufacturer, wholesaler, retailer)—casual/occasional sellers are excluded. Plaintiffs: any foreseeable user, consumer, or bystander injured by the product (privity of contract is not required).

What defenses and damages apply in strict products liability actions?

Defenses: comparative/contributory fault (assumption of risk, product misuse). Pure economic loss alone (damage only to the product itself, no personal injury or other property damage) is generally not recoverable under strict products liability—that is a contract/warranty matter. Recoverable: personal injury and property damage.

What are the elements of common-law defamation?

(1) A defamatory statement (one that tends to harm reputation), (2) of or concerning the plaintiff, (3) publication to a third party (intentional or negligent communication), and (4) damage to the plaintiff's reputation. Constitutional cases add fault (negligence or actual malice) and falsity.

Distinguish libel from slander, and identify slander per se.

Libel is defamation in permanent/written form; general damages are presumed. Slander is spoken defamation; the plaintiff must prove special (pecuniary) damages unless it is slander per se. Slander per se categories (damages presumed): statements about (1) business/profession, (2) a loathsome disease, (3) crime of moral turpitude, and (4) unchastity of a woman/sexual misconduct.

What additional constitutional elements apply to defamation involving public officials/figures versus private figures?

Public officials/public figures on matters of public concern must prove falsity and 'actual malice' (knowledge of falsity or reckless disregard for the truth—New York Times v. Sullivan). Private figures on matters of public concern need only prove negligence as to falsity for actual damages (actual malice needed for presumed/punitive damages).

What are the four types of invasion of privacy torts?

(1) Appropriation of the plaintiff's name or likeness for commercial advantage, (2) Intrusion upon seclusion (highly offensive intrusion into a private place where there is a reasonable expectation of privacy), (3) Publication of private facts (public disclosure of private, non-newsworthy facts highly offensive to a reasonable person), and (4) False light (publicizing facts placing the plaintiff in a false light highly offensive to a reasonable person).

What are the elements of intentional misrepresentation (fraud/deceit)?

(1) A false representation of a material fact, (2) scienter (knowledge of falsity or reckless disregard), (3) intent to induce the plaintiff's reliance, (4) actual and justifiable reliance by the plaintiff, and (5) damages (actual pecuniary loss).

What are the elements of tortious interference with contract/business relations?

(1) A valid contract or business expectancy between the plaintiff and a third party, (2) the defendant's knowledge of the relationship, (3) intentional interference inducing a breach or termination, and (4) resulting damages. The interference may be privileged if the defendant has a legitimate competing interest (especially for prospective relations).

Distinguish private nuisance from public nuisance.

Private nuisance: a substantial and unreasonable interference with another's use and enjoyment of their land (plaintiff must have a possessory interest). Public nuisance: an unreasonable interference with a right common to the general public; a private individual may recover only by showing harm different in kind from that suffered by the public.

State the elements and major exceptions of vicarious liability (respondeat superior).

An employer is liable for the torts of an employee committed within the scope of employment. Generally not liable for: (1) intentional torts (unless job-related/foreseeable), or (2) acts on a 'frolic' (substantial deviation) versus a minor 'detour' (within scope). Employers are generally not vicariously liable for independent contractors (except non-delegable duties or inherently dangerous activities).