Torts full outline

ROBINETTE TORTS

MASTER ATTACK OUTLINE

(Framework = Lecture Notes | Weighting & Emphasis = Finals + Grade Explanations)

Always organize as:

DEFENDANT → PLAINTIFF → CLAIM TYPE

Always say the claim before the rule.
This is one of Robinette’s hidden grading rubrics.

“This is primarily a premises liability negligence claim involving an invitee.”

Then apply the elements in this exact order:

Duty → Standard of Care → Breach → Causation → Damages → Defenses

I. NEGLIGENCE (CORE OF MOST EXAMS)

A negligence claim requires that the plaintiff establish the following against the

defendant: breach based on a standard, causation, duty, and damages.

1. DUTY (CLASSIFY THE HARM FIRST)

A. Identify the Harm Category

The general duty is to act in a way that does not harm others.

This determines the duty rules:

Physical harm → general duty of reasonable care (Rest. §7)

Emotional harm only → NIED framework

Pure economic loss → no duty absent special relationship

Premises liability → status-based duties

Failure to rescue / public defendants → no duty unless exception

Professional relationships → special standard

📌 Robinette expects you to explicitly classify the duty context.

B. Premises Liability/ Plaintiff’s Status (Very High Frequency)

Step 1: Classify Plaintiff

However, a special duty arises

when the plaintiff is on the premises of the defendant with their permission.

Invitee (economic benefit) → reasonable care (inspect, fix, warn) / A plaintiff is an
invitee if they are on the defendant's premises for the defendant's economic benefit.

Licensee (social guest) → warn of known dangers

Trespasser → no willful/wanton harm

Exception: known/frequent trespassers → reasonable care

Step 2: State the duty clearly

“As an invitee, D owed P a duty of reasonable care.”

C. Duty Owed / Nonfeasance / Special Duties (Triggers)

Duty may arise if:

Defendant created the risk

Special relationship (business–patron, employer–employee, physician–patient, etc.)

Voluntary undertaking inducing reliance

Public entity + special relationship (911 reliance)

2. STANDARD OF CARE

Default Rule:

Ordinary reasonable person under the circumstances / The general standard is that of the ordinary reasonable person under the circumstances.

Mandatory Deviations (Always Check):

Children → reasonable child of like age, intelligence, experience

Adult activity? → revert to adult standard

Physical disability → reasonable person with that disability

Mental disability → usually no adjustment

Professionals → reasonable professional (custom-heavy)

Emergency doctrine → reasonable person in emergency / In the majority of jurisdictions, the standard is that of a reasonable person in an emergency and in the minority, the standard is to not leave the victim worse off.

Statutory standard → negligence per se analysis

📌 Child + dangerous activity is a guaranteed testable issue.

3. BREACH

(Robinette expects this four-part analysis, even if briefly)

Always run this checklist:

(1) Res Ipsa Loquitur

Accident doesn’t occur absent negligence

Exclusive control

No plaintiff contribution
(Usually reject unless facts strongly fit.)

(2) Custom

Evidence of reasonableness

Deviation from own custom = strong breach evidence

Custom ≠ the legal standard (except med mal, often)

(3) Hand Formula (B < P × L)

You must articulate:

Burden

Probability

Severity

Apply it again when conditions escalate (e.g., each firework launched).

(4) Common Sense

Explicitly say it:

“Common sense suggests an ordinary reasonable person would…”

THUS: The totality of circumstances supports / does not support a finding of breach.

4. CAUSATION

A. CAUSE-IN-FACT

In order to establish causation, the defendant must be found as the cause-in-fact and proximate

cause of the harm.

Cause-in-fact can be evaluated using the but-for test.

Default: But-for test

Would the harm have occurred but for D’s breach?

Only deviate if facts trigger:

Concurrent causes do not negate causation.

Loss of chance (medical, under 50%)

Alternative liability (Summers v. Tice)

Market share liability (Sindell)

📌 If chance > 50%, do not use loss of chance.

B. PROXIMATE CAUSE (THIS IS A POINT-MINE)

You must use this structure. Proximate cause evaluates whether any factors of the situation would result in cutting off liability to the defendant.

STEP 1: UNEXPECTED CATEGORIES

If any component of the incident is unexpected, it may have an effect on whether the plaintiff

can recover. Analyze each explicitly. Mnemonic: TEMP

Unexpected Type : If the harm that results is of the type that was not expected from the defendant's act, the plaintiff likely will not recover.

Different kind of harm → no recovery (Wagon Mound)

Unexpected Extent : The unexpected extent of harm applies when the defendant could have foreseen the type of harm that occurs but not the magnitude in which the plaintiff suffers the harm.

Worse-than-expected harm → recover (Eggshell Skull/Psyche)

Unexpected Plaintiff : The unexpected plaintiff is not allowed to recover as found in Palsgraf where Justice Cardozo argued that it was not foreseeable enough for the defendant to harm that particular plaintiff and Justice Andrews argued that there was not a specific enough duty to the unforeseeable plaintiff that would allow them to recover.

Palsgraf

Cardozo: zone of danger

Andrews: policy/fairness

Unexpected Manner : The unexpected manner in which the harm results will not cut off liability because if the harm is foreseeable, the way in which it occurs should not cut off liability to the defendant because the harm should still have been something the defendant was concerned with preventing.

Foreseeable harm via odd means → recover

STEP 2: INTERVENING vs. SUPERSEDING CAUSES

Any act of a third party or natural event between the defendant's act and the harm to the plaintiff

must be evaluated as to whether it is intervening, or foreseeable, or superseding which is

unforeseeable. Only a superseding cause will cut off liablity to the defendant.

Intervening = foreseeable → liability continues

Superseding = extraordinary, unforeseeable → liability cut off

Common exam patterns:

Crowd surges → intervening

Criminal smuggling / spiders → superseding

Fireworks ricochet → intervening

Remote seizure from phone light → superseding

STEP 3: POLICY

Brief but mandatory:

Crushing liability: One public policy concern is the defendant suffering from crushing liability. If the defendant were to suffer hardship for being held liable, the court may refrain from doing so.

Deterrence

Fairness

5. DAMAGES

Must show actual harm.

Physical injury

Emotional distress (where allowed)

Property damage

Economic loss (if duty exists)

6. DEFENSES (DO NOT SKIP)

A. Plaintiff Negligence (comparative fault)

Run full negligence analysis against plaintiff:

Duty to self

Applicable Standard

Breach by Plaintiff

Causation

Jurisdictional effects:

Contributory → recovery barred

Pure comparative → proportional recovery

Modified comparative (49% / 50%)

B. Assumption of Risk

Separate clearly:

Express

Contract Analysis. Clear waiver language?

Public policy limits?

Implied Primary

No duty (inherent risk)

Implied Secondary

Merges into comparative fault

Elements

Actual knowledge of the risk

Appreciation of its magnitude

Voluntary encounter

C. Avoidable Consequences

Post-injury conduct (e.g., refusal of medical care)

Reduces damages, not liability

D. Immunity / Public Duty Rule / Statutes of Limitation

Police owe duty to all → duty to none

Special relationship exception:

Direct contact

Reliance

Specific assurances

II. EMOTIONAL DISTRESS (NIED)

Only if emotional harm is central.

Three Tests (state which apply):

Physical manifestation

Zone of danger

Bystander

Close relationship

Presence

Awareness

Serious distress

📌 Robinette repeatedly emphasized bystander + manifestation.

III. STRICT LIABILITY

A. Abnormally Dangerous Activities (Rest. §520)

Analyze factors explicitly:

High risk

Severe harm

Inability to eliminate risk

Uncommon usage

Inappropriate location

Value vs danger

📌 Often discuss SL → then pivot to negligence unless clearly SL.

B. ANIMALS

Wild animals → strict liability / Wild animals are those that are typically not domesticated and are known to cause serious injury. Therefore, strict liability is imposed on the owner or possessor of such animal regardless of whether the owner or possessor believes they have trained the animal.

Domestic animals → known dangerous propensity / The rule for domestic animals is that strict liability is only imposed for animals that can be domesticated and the harm that results is from the animal's dangerous tendency that the owner or possessor is aware of or should be aware of.

Defenses:

Plaintiff fault reduces recovery

Assumption of risk possible

IV. INTENTIONAL TORTS

(Always analyze separately from negligence)

A. BATTERY

A battery is an intentional touching that is harmful or offensive.

Intent (single vs dual) / Intent is the purpose or substantial certainty for a result to occur. The intent element of battery varies by jurisdiction. In single intent jurisdictions, the intent is only required for the contact. In dual intent jurisdictions, an additional intent is required for the harm or offense.

Touching (direct or objects in hand) / The element of touching can be satisfied either directly or indirectly. Additionally, the contact can be onto the person themselves or something intimately acquainted with the person.

Harmful or offensive / The element of harm or offense requires that the plaintiff either suffered physical harm or harm to their dignity.

Defenses: consent (scope!), necessity / A possible defense to battery is consent. The defense can be invoked if the defendant subjectively believed they had consent under the objective circumstances and they did not exceed the scope of that consent.
B. ASSAULT
Elements:
▪ (1) Intentional Act
• P/SC
▪ (2) To cause a harmful or offensive contact with another or imminent apprehension (harm) of such contact
• Dual intent in all jdx
• B/c no contact is needed, ∆ must have wanted to cause the harm (P/SC)
▪ (3) The other experiences such imminent apprehension (subjective)
Specific rules:
▪ Mere preparation is NOT enough UNLESS it is a gun
▪ Words alone are not enough (but words may infer intent/P/SC)
• Threats alone are not enough
• Conditionals do not count (ex. “I would kick you if we weren’t at work!”)

C. FALSE IMPRISONMENT

Elements:
▪ (1) Intentional
• Single Intent
• P or SC for the restraint
▪ (2) Restraint
• One of 5 factors:
♦ Actual or apparent physical barriers
♦ Overpowering physical force or submission to physical force
♦ Submission to threats of physical force
♦ Other duress (ex. threat to a family member)
♦ Asserted legal authority
▪ (3) That is unjustified
Means of escape are unreasonable if:
▪ ∏ does not know of it and it is not apparent
▪ It causes exposure of ∏ (ex. bathing)
▪ It causes material harm to clothing
▪ It causes danger of substantial harm (ex. crawling through a sewer)

Awareness or harm

D. IIED

Extreme & outrageous

Intent or recklessness

Causation

Severe emotional distress (objective evidence)

TRESPASS/PROPERTY TORTS

Intent: (not P or SC)

▪ A volitional move

• Land

♦ All that is needed is the movement of one’s grubby little foot on another’s land

♦ One need not have knowledge of their trespass

♦ If my step is NOT volitional on my part it does not count (e.g., my brother pushes me over into the land/I did not take a volitional step => my brother is liable for trespass by placing something else [me] onto the land volitionally)

• Chattel

♦ Can be by reasonable mistake; all that is needed to intend to do the act itself (the physical taking of the chattel/the exercise of dominion and control over the chattel)

♦ Not necessary to prove intent to deprive

▪ That is foreseeable

• Must be reasonably foreseeable

• Before picking up and placing my foot here I foresaw my foot being placed here •

Basketball example – not foreseeable

Damages

▪ Trespass to land, conversion – nominal damages are available

▪ Trespass to chattel – nominal damages NOT available

TRESPASS TO LAND

▪ (R(2^nd))

1. One is subject to liability for trespass irrespective of whether harm occurs if he intentionally: a. Enter land in possession of the other (R taking a step onto his grandparents’ neighbor’s property), or causes a thing (Herrin – bullets; snowballs), or a third person to do so (my brother pushes me and is liable), or

b. Remains on the land (once had the ability to be on the land but then the permission is revoked or expired; ex. hire someone to mow your lawn and they finish the job but do not leave), or

c. Fails to remove from the land a thing which he is under a duty to remove (Rogers) ▪ Who suffers the harm/has a trespass action?

• Person who has a trespass action is the POSSESSOR not the OWNER. The person who is DAMAGED.

♦ Ex. A rented has a trespass action over someone who unlawfully enters their rented property, not the landlord (b/c the tenant was damaged here).

Exception: Owner has a reversionary interest; if one comes onto the property and does harm to the “reversionary interest” (ex. trespasser breaks the door or the concrete) then the OWNER has a trespass claim because they are the damaged party.

▪ Cases:

• Dougherty v. Stepp (1835)

♦ Rule: Law of trespass requires little damage. The mere “treading down of grass, herbage, or shrubbery” will suffice to infer damages.

Policy: Enforcement of the right to own land. Although you are not harmed, your rights have been violated.

• Herrin v. Sutherland (1925)

♦ Rule: Ad coleum doctrine: property owner owns everything “from the heavens to the depths.” Something need not touch the property to constitute a trespass. Placing something on or over the property counts. Air space is protected from trespass.

♦ Rule: Anything which “interferes with the ‘quiet undisturbed, peaceful enjoyment’” of ∏’s property is a trespass.

• Rogers v. Board of Road Com’rs for Kent County (1947)

♦ Rule: Continuing trespass: when one fails to remove a structure placed upon the land of another after the expiration of a specified time period

♦ Rule: § 160 Failure to remove a thing placed on the land pursuant to a license or other privilege.

TRESPASS TO CHATTEL

▪ § 217(b) Trespass to Chattel (modernly)

• Elements:

1. One who uses or otherwise intentionally

2. Intermeddles with a chattel which is in possession of another

3. Is liable for a trespass to such person if: (Factors)

a. He dispossesses the other of the chattel, or

b. The chattel is impaired as to its condition, quality, value, or

c. The possessor is deprived of the use of the chattel for a substantial time, or

d. Bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest (ex. you fucked up my seatbelt and I got hurt in a crash)

▪ Modernly, (according to the most recent Restatement) the chattel need not be tangible to be subject to trespass.

▪ Cases:

• Glidden v. Szybiak (1949)

♦ Rule: § 217(b)

• CompuServe Inc. v. Cyber Promotions Inc. (1997)

♦ Here, ∆ was found to have caused harm to ∏’s ability to perform services and thus trespassed to chattel.

CONVERSION

▪ § 222a Conversion

1. An intentional

2. Exercise of dominion or control over a chattel in possession of another

3. Which so seriously interferes with the right of another to control it that the actor justly may be required to pay the other the full value of the chattel (“intentionally intermeddling with personal property”). In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:

a. The extent and duration of the actor’s exercise of dominion and control; b. The actor’s intent to assert a right in fact inconsistent with the other’s right of control;

c. The actor’s good faith; (more related to sales)

d. The extent and duration of the resulting interference with the other’s right of control; e. The harm done to the chattel; *

f. The inconvenience and expense caused to the other.

*Distinguishes between TtC and Conversion

▪ Ways to Convert a Chattel

1. Acquire possession – Steal

2. Damage or alter – Intentionally run over and kill animal

3. Using it – Bailee seriously violates terms of a bailment

4. Receiving it – Obtaining possession/purchase from thief

5. Disposing of it – Bailee wrongfully sells chattel

6. Misdelivering it – Delivery by mistake so chattel is lost

7. Refusing to surrender it – Bailee refuses to return chattel

▪ Damages

• Price of damages = fair market value at the time and place of the tort

♦ Policy: If you lost X, then you should be able to go out right now and buy a new X. • Emotional distress damages available only if the conversion is particularly awful (ex. throw trashcan at a dog on purpose and kill it; accidently killing someone’s dog is N/A)

• More for conversion that for trespass to chattel b/c conversion is complete destruction. At the end of a conversion suit, the ∆ owns the chattel.

♦ A party who does not want their property to be owned by the ∆ at the end of an action may choose to bring a trespass to chattel action over a conversion action.

▪ Cases:

• Pearson v. Dodd (1969)

♦ Rule: One must deprive the true owner of use to constitute conversion.

Note: In some cases, items may have value in addition to the value of their physical possession (e.g., intellectual property, trade secrets) and thus may be subject to more than 1 factor.

V. ECONOMIC LOSS RULE

If pure financial loss only:

No duty

Claim fails

Say it explicitly

VI. VICARIOUS LIABILITY

Vicarious liability can be invoked when the agent is the employee of the principal or the

principal holds the agent out as an employee and the agents acts are in furtherance of the

principal's business.

Employee vs independent contractor

Scope of employment (detour vs frolic)

Apparent authority

Nondelegable duties

VII. DAMAGES (WHEN ASKED)

A. Compensatory

Compensatory damages include both economic and non-economic damages. Economic

damages include the past and future medical bills as well as past and future lost wages.

Economic: medical bills, lost wages

Non-economic: pain & suffering (per diem ok)

B. Multiple Defendants

Joint & several → recover 100% from one

Several-only → insolvent defendant = loss to plaintiff

C. Punitive Damages

Recklessness or higher

Clear & convincing evidence

Due Process limits (Gore guideposts)

Insolvent Defendant

A defendant being insolvent can be relevant if there is a suit in which the defendants owed a

similar duty to the plaintiff, if they acted in concert, or if they were both substantial factors of the

result. In these situations, if any of the defendants are insolvent, it will depend on the jurisdiction

in which the suit is filed to determine how the plaintiff recovers.