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Rutgers University, Newark School of Law
Bell, Bernard W.

 Unintentional Torts

NEGLIGENCE                                    ABSOLUTE LIAB.                        STRICT PRODUCTS LIAB.
1. Duty                                                                                                                                   1. Abnormally dangerous/    1. Defect
2. Breach                                                                                                                                    Ultrahazardous act           2. A/C
3. A/C                                                                                                                                                 2. A/C                                     3. P/C
4. P/C                                                                                                                                                 3. P/C                                     4. Damages
5. Damages                                                                            4. Damages

Intentional Torts

BATTERY                                                                                                                  ASSAULT                                          FALSE IMPRISONMENT
1. Offensive or                         1. Well founded fear or                        1. Confined in area
harmful touching                              apprehension of battery                        2. Against P’s will
2. Intent                                                                                                                     2. Intent to cause bodily                   3. Intent
harm or put P in fear of it

1. Intentional recklessness or substantial
certainty to cause emotional distress
2. Extreme or outrageous conduct
3. Causal connection b/w D’s conduct and P’s
emotional distress
4. P must suffer severe distress.


Tort – civil claim for injuries that develop from common law that do not involve agreements between parties.
Standard: in granting a motion to dismiss if plaintiff wins trial moves on; if defendant then case is over except on appeal.
Discovery: Finding facts through asking witnesses, etc.
Complaint: alleges coases of action and sets forth facts supporting the allegations
Demurrer – (motion to dismiss) P has failed to state elements or cause of action.
Answer: disputes allegataions and raises defenses
Summary Judgment – no genuine issue of material fact (assumes facts most favorable to non-movant) either party can say I win all facts given
Bench or jury trial: can be either: when judges then he hears and decides, when jury then he is there to tell jurors law.
Directed verdict – party has failed to establish facts sufficient to rule in his favor (assumes facts most favorable to non-movant)
Verdict: jury decides who is telling the truth
Burden of Proof:
Burden of Production – presents evidence; each element of the claim (P’s burden)
Burden of Persuasion – convince fact finder whose version is more convincing; if the jury finds either set of facts are possible, the person with the burden (usually P) loses. 
Judgment n.o.v. – motion to set aside jury verdict

esults: It is not enough for P to show that D’s conduct resulted in a terrible injury. P must show that D’s conduct, viewed as of the time it occurred, without benefit of hindsight, imposed an unreasonable risk of harm. [87 – 88] B. Balancing: In determining whether the risk of harm from D’s conduct was so great as to be “unreasonable,” courts use a balancing test: “Where an act is one which a reasonable [person] would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.” [88 – 89]

Duty of Care

Brown v. Kendall – Mass 1850 (BREACH OF DUE CARE) D tries to stop dogs from fighting and hits P with stick. D was acting lawfully and was not liable unless he was acting negligent or careless. No need to show he exercised extraordinary care, reasonable care is sufficient. If the injury was unavoidable and D’s conduct was free from blame, there is no liability. Beginning of reasonable man standard for establishing liability.

Ordinary care – that kind and degree of care which prudent and cautious men would use, such as is required by the exigency of the case and such as is necessary to guard against probable danger.