Torts

CA Bar - July 2025

Intent

actor acts w/ purpose of causing the consequence; or actor knows that the consequence is going to come out to a substantial certainty

Battery

plaintiff must prove:

(1) Intended to cause contact with the plaintiff’s person

(2) The contact led to conduct AND 

(3) The contact was offensive and/or lead to bodily harm

Assault

Plaintiff must prove:

(1) Intended to cause the plaintiff to anticipate an imminent or offensive contract with the plaintiff’s person and

(2) The defendant’s conduct causes the plaintiff to anticipate such contact

Intentional Infliction of Emotional Distress

plaintiff must prove:

(1) By extreme and outrageous conduct,

(2) Intentionally or recklessly causes the plaintiff severe emotional distress

• Conduct is extreme & outrageous if it exceeds the possible limits of human decency making it intolerable in a civilized society

False Imprisonment

plaintiff must prove:

(1) The defendant intends to confine or restrain another within fixed boundaries

(2) Actions or inactions directly or indirectly result in confinement, and

(3) Plaintiff is conscious of the confinement or harmed by it, under minority jurisdictions

Trespass to Chattels

• A plaintiff can establish this when the defendant intentionally interferes with the plaintiff’s possession of a chattel through dispossession, use, or intermeddling.

• plaintiff must prove actual harm through

  • (1) actual harm to chattel

  • (2) substantial loss of use of the chattel, OR

  • (3) bodily harm to plaintiff

Conversion

A defendant who initially uses the plaintiff’s chattel w/ permission commits this when the defendant:

1. Intentionally uses the chattel in a manner that exceeds the scope of permission and 

2. Seriously violates the plaintiff’s right to control the chattel

Trespass to Land

A plaintiff can establish this when a defendant’s intentional act causes physical entry onto the land of another.

Public Nuisance

A plaintiff can show a this by showing

(1) the defendant caused an unreasonable interference with a right common to the general public and

(2) the plaintiff suffered a different kind of harm than the public

Private Nuisance

A plaintiff can show this by showing the defendant caused a substantial, unreasonable interference with use or enjoyment of land

Negligence

requires a showing of a duty, breach, actual cause, proximate cause, and damages

Duty

owed to all foreseeable plaintiffs.

Majority Duty

Duty Approach —> Majority or Minority?

• a foreseeable plaintiff is one who is in the foreseeable zone of danger.

Minority Duty

• a defendant owes a duty of care to anyone who suffers injuries as a proximate result of the defendant’s breach of duty to someone, regardless of foreseeability.

Standard of Care

• imposed is that of a reasonably prudent person, as measured by an objective standard.

• Professionals owe a duty that is the custom of the community or industry.

  • Common carriers owe a higher standard of care under the majority jurisdiction.

Landowner

who has these duties:

• An invitee has a duty to make a reasonable inspection and warn of all known dangers.

• A licensee a duty to make the property safe and warn them of hidden dangers, no duty to inspect

• Discovered or anticipated trespassers a duty to warn & protect from hidden dangers

  • Children trespassing under attractive a nuisance a duty to exercise reasonable care

Landlord

A __ must (1) Maintain safe common areas, (2) warn of hidden dangers, and (3) repair hazardous conditions

Negligence per se

• If plaintiff is in the class of plaintiffs to be protected

• The harm is the type to be prevented

• The harm was caused by the violation of the statute

Breach

 when the defendant’s conduct falls below the standard of care 

Traditional approach

This approach to breach —> the plaintiff must show that a reasonable prudent person would act differently under the same circumstances 

Cost-benefit analysis

looks at the likelihood and severity of the harm and the defendant’s burden (costs & disadvantages) in avoiding the harm 

res ipsa loquitur

To prove this the plaintiff must show: (1) Accident was of a kind that does not ordinarily occur in the absence of negligence, (2) It was caused by an agent or instrumentality within the exclusive control of the defendant; and (3) It was not due to any action on the part of the plaintiff

Causation

plaintiff must show actual cause and proximate cause.

Actual Cause

• Under the “But For” test the plaintiff must show that the injury would not have occurred “but for” the defendant’s negligence

• Under the “Substantial Factor” test, the plaintiff must show the defendant’s tortious conduct was a substantial factor in causing the harm

Proximate Cause

• plaintiff must show that the harmful result was a reasonably foreseeable consequence of the defendant’s actions

• In the event the plaintiff can prove his injuries were a foreseeable result of defendant’s actions, there must not have been any intervening, superseding causes.

• An intervening cause is an unforeseeable crime or intentional tort of a third party

Plaintiff

Is this plaintiff or bystander? —> negligent infliction of emotional distress

A __ can recover for NIED if they can show (1) they were within the zone of danger of the threatened physical impact AND (2) the threat of physical impact caused emotional distress

Bystander

Is this plaintiff or bystander? —> negligent infliction of emotional distress

A __ can recovery for NIED if the (1) person is closely related to the person injured by the defendant, (2) was present at the scene of injury, and (3) personally observed the injury

Vicarious Liability

• An employer may be held for the tortious acts committed by an employee that were within the scope of employment.

• Conduct within the scope includes acts the employee is employed to perform or that are intended to profit or benefit the employer

• A detour is a minor deviation from the scope of employment that still holds the employer liable.

• A frolic is a major deviation from the scope of employment that will not make the employer liable.

Detour

minor deviation from the scope of employment that still holds the employer liable.

Frolic

a major deviation from the scope of employment that will not make the employer liable.

Nondelegable Duties

• employer may be liable for this

• which are duties that are inherently dangerous activities 

Apparent Agency Doctrine

•  which holds the employer liable for the independent contract if (1) the injured person picked the independent contractor’s services thinking they were an employee, and (2) independent contractor’s negligence is a factual cause of harm to one who receives services within the scope 

Abnormally Dangerous Activities

A defendant may be held strictly liable for engaging in this — must be the actual and proximate cause of plaintiff’s harm.

(1) creates a foreseeable and highly significant risk of physical harm—even when reasonable care is exercised—and (2) is not commonly engaged in within the community.

Framework: Risk of Harm, Not Commonly Engaged within the Community, Actual Cause, Proximate Cause, Damages

Wild Animals

• as a species or class, not customarily kept in the service of human kind

• Dangerous Propensity - owners are strictly liable for the harm arising from the animal’s dangerous propensities

• Liability to Trespassers - strictly liable for injuries caused to licensees or invitees; not trespassers

• EXCEPTION - injuries caused by a vicious watchdog

Domestic Animals

Known to be Dangerous - if the owner knows or has reason to know that the particular animal has dangerous propensities, then they are strictly liable

Dog-Bite Statutes - dog owners strictly liable for injuries caused by dogs (statutory variance)

Trespassing Animals

• the owner of any animal is strictly liable for reasonably foreseeable damage caused by his animal while trespassing on another’s land

• EXCEPTIONS - household pets (unless owner knows pet is doing it in a harmful way)

• Animals on public roads - a negligence standard applies

Defective Product

A product is defective when, at the time of sale or distribution, the product contains a manufacturing defect, a design defect, or inadequate instructions or warnings

Strict Products Liability

• manufacturer, retailer, or other distributor of a defective product may be liable for any harm to persons or property caused by the product defect.

• The plaintiff must prove that

  • (1) the product was defective,

  • (2) the defect existed at the time the product left the defendant's control, and

  • (3) the defect caused the plaintiff's injuries when the product was used in an intended or reasonably foreseeable way.

Manufacturing Defect

a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant's own specifications.

Design Defect

There are two tests used to establish this: the consumer-expectation test and the risk-utility test.

Under the consumer-expectation test, a product is defective in design, if it’s less safe than an ordinary consumer would expect.

Under the risk utility test, a product is defect in design if the risk outweighs its benefits. The plaintiff must show a reasonable alternative design.

Consumer Expectation Test

• a product is defective in design, if it’s less safe than an ordinary consumer would expect. 

Risk Utility Test

a product is defect in design if the risk outweighs its benefits. The plaintiff must show a reasonable alternative design

failure to warn

exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings.

Express Warranty

a guarantee made by a seller regarding the product that is part of the basis of a bargain. The seller is liable for any breach of that warranty regardless of fault.

Implied Warranty

Merchantability - product is suitable for the ordinary purposes for which it is sold

Fitness For a Particular Purpose - seller knows the particular purpose for which the product is being sold, and the buyer relies on the seller's skill or judgement

Intentional Misrepresentation (Fraud)

false representation, scienter, intent, causation, justifiable reliance, damages

False Representation

Element in Intentional Misrepresentation

• must be about a material fact, can arise through deceptive or misleading statements, can arise from concealing a material fact, generally no duty to disclose, but affirmative if fiduciary relationship, or awareness of mistake

Scienter

Element in Intentional Misrepresentation

• defendant knows that the representation is false or acted with reckless disregard for its falsity

Justifiable Reliance

Element in Intentional Misrepresentation

• reliance is NOT justified if the facts are obviously false, or it’s clear D was stating an opinion

Negligent Misrepresentation

• failure to take due care in providing information,

• ELEMENTS → (1) D provided false info to P, (2) as a result of the D’s negligence in preparing the information, (3) during the course of a business or profession, (4) causing justifiable reliance and pecuniary loss and (5) plaintiff is either in a contractual relationship with D or P is a 3P known by D to be a member of the limited group for whose benefit the info is supplied

• Defenses - negligence defenses can be raised

  • Damages - plaintiff can recover reliance (out of pocket) and consequential damages if its is proven with sufficient certainty

Intentional Interference with a Contract

Elements - (1) a valid contract existed between the plaintiff and a third party; (2) defendant knew of the contractual relationship; (3) defendant intentionally interfered with the contract, resulting in a breach, and (4) nature of the breach caused damages to the plaintiff

Assumption of Risk

• A plaintiff may be denied recovery if he assumed the risk caused by the defendant’s act.

• complete bar to recovery in contributory negligence jurisdictions

  • will reduce $$ in comparative fault jurisdictions

Defamatory Language

• diminishes respect, esteem, or goodwill toward the plaintiff, or deters others from associating with plaintiff

• Falsity - Defamatory statement must be false in order to be action

• Opinion is not actable as a defamation, an opinion implied in fact is

Defamation

Must Prove: (1) Made a defamatory statement, (2) that is of concerning the plaintiff, (3) statement was published to a third party who understood its defamatory nature; (4) and damage to the plaintiff’s reputation results

Publication

• statement must be communicated to a third party

• Person who repeats a defamatory statement may be liable for defamation

• Fed Statute provides that internet service providers and platforms ARE NOT publishers for this purpose

Public Figure

This type of figure under defamation must prove that person who made statement knew that it was false and acted w/ reckless disregard for the truth (Actual Malice Standard) — malice is present when the defendant knows the statement is false or acts with reckless disregard as to whether it is true or false

Libel

written, printed, or recorded defamatory statement

Plaintiff may recover general damages (recovery without proof of measurable harm)

Slander

• a defamatory statement that is spoken

• Plaintiff must prove special damages (requires a showing of economic loss); exceptions for slander per se:

  • Commission of a serious crime

  • Unfitness for a trade or profession

  • Having a loathsome disease

  • Severe sexual misconduct

Absolute Privilege

type of privilege in defamation defense —> speaker is completely immune from liability, including statements made

• In the course of judicial proceedings

• In the course of legislative proceedings,

• Between spouses,

• And in required publications by radio & TV (statement by political candidate, tv can’t censor)

Conditional Privilege

type of privilege in defamation defense —> plaintiff must show higher level of culpability, includes statements made:

• In the interest of the defendant (eg: defending your reputation)

• In the interest of the recipient of the statement; or

• Affecting some important public interest

****Requirement - statement is made in good faith to some duty or responsibility

Intrusion upon seclusion

defendant intrudes upon the plaintiff’s private affairs, in a manner that would be highly offensive to a reasonable person (eg: phone tapping, hacking into medical records, voyeurism)

False Light

defendant (1) makes public facts about the plaintiff, (2) that place the plaintiff in this (3) which would be highly offensive to a reasonable person (eg: writing a book about someone, including someone else’s mugshot

Appropriation of the Right to Publicity

a property-like cause of action when someone (1) appropriates another’s name or likeness (2) for the defendant’s advantage, (3) without consent, and (4) causes injury

Public Disclosure of Private Facts

(1) defendant publicizes a matter concerning the private life of another; (2) and the matter publicized (a) is highly offensive to a reasonable person and (b) is not of legitimate concern to the public

Trade Libel

need not necessarily damage the business reputation

(1) Publication, (2) of a false or derogatory statement, (3) with malice, (4) related to the plaintiff’s title of his business, quality of biz, or quality of it’s products, and (5) causes special damages as a result of interference with or damages to biz relations

Slander of Title

(1) publication, (2) of a false statement; (3) derogatory to the plaintiff’s title, (4) with malice, (5) causing special damages; and (6) diminished value in the eyes of third parties

Malicious Prosecution

personal intentionally and maliciously institutes or pursues a legal action for an improper purpose without probable cause, and the action is dismissed in favor of the person against whom it was sought

Abuse of Process

D set in motion a legal procedure in the proper form, but has abused it to achieve some ulterior motive

Conduct must also cause damages

Pure Comparative Negligence

plaintiff’s recovery is reduced by the plaintiff’s percentage of fault

• plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm.

Modified Comparative Negligence

if the plaintiff is more at fault than the defendant, then the plaintiff can’t recover

Some jurisdictions: if P and D are equally at fault, then the plaintiff’s recovery is barred

Contributory Negligence

• Traditional Rule - of the plaintiff was negligent in some way, the negligence completely precluded the plaintiff’s recovery

• Last Clear Chance Doctrine - allows a negligent plaintiff to recover upon showing that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so

Compensatory Damages

• purpose is to make plaintiff whole again

• Actual Damages - can include costs of physical injuries and also emotional damages

• Mitigation of Damages - plaintiff must take reasonable steps to mitigate damages, limitation on recovery

• Personal Injury - Categories of these Damages:

  • Medical Expenses - both past and future

  • Lost income and reduced earning capacity

  • Pain and suffering, both past and future

• Property Damage - plaintiff may recover difference in the market value before and after the injury

• May allow cost of repair or replacement value as an alternative means of damages

Privilege of Arrest

• Private citizen - permitted to use reasonable force to make an arrest IF: (1) felony has actually been committed and (2) arresting party has reasonable grounds to suspect that the person arrested has committed the felony

  • NO DEFENSE - regarding mistake of identity of felon, or if the felony was actually committed

• Police - must reasonably believe that a felony has been committed and the person arrested committed it

  • DEFENSE - for officer’s mistake as to whether a felony was committed