Intentional Torts

1. General Considerations of Intentional Torts

a. Hypersensitivity of plaintiff is ignored
b. No incapacity defenses for intentional torts
i. In Georgia, children under age 13 are immune from tort liability
c. Intent: Desire to produce the legally forbidden consequence
d. Transferred Intent: D has intent BUT different consequences OR different victim, D
still liable
i. Intent to commit assault can turn into battery is contact is made
2. Elements of Battery
a. D intends to make harmful or offensive contact
i. A contact is offensive when its unpermitted by a person of ordinary sensitivity
ii. Hypersensitivity of plaintiff is ignored
iii. Contact need not be instantaneous – a time delay does not alter the analysis
b. With plaintiff’s person
i. Plaintiff’s person includes anything plaintiff is touching or holding
1. Contact does not have to be with a body part
c. Ask yourself: Would a person with ordinary sensitivity not allow that contact
3. Elements of Assault
a. Reasonable anticipation – P must be aware that she is about to be touched. If she is
oblivious, then there is no reasonable anticipation
i. Fear is not required
ii. P must anticipate a battery. She has to see is coming
iii. Unloaded gun problem: D threatens a battery and P anticipates it, but D cannot
actually carry out the battery. If P knows the gun is unloaded, you lose the assault
claim. If P does not know the gun is unloaded, and has reasonable belief that
battery will come then element is met
b. Of immediate battery
i. Words alone lack immediacy, there must be accompanying conduct
1. Verbal threats alone are not assault
ii. Accompanying conduct – Menacing gesture
1. Display of weapon (knife, rock, gun, stick, etc.)
2. Bodily movement (using fist, hands)
iii. But words can destroy immediacy
1. When the words are conditional in nature
a. “If then I would” but you are so I won’t
2. If the threat that accompanies the words promises conduct in the future
a. Not anticipation of an immediate battery
4. Elements of False Imprisonment
a. Act of restraint – D creates barrier that prevents P from leaving a space or holding
someone so that they cannot move
i. Threats can constitute restraint
1. The threat has to be plausible
2. Hypersensitivity of P is ignored
ii. Omission: Failure to act can constitute restraint if legal duty to do
iii. Awareness: P must be aware of confinement or harmed
1. If P is unconscious or unaware of confinement, no false imprisonment
unless you were in some way injured by the confinement
b. Plaintiff confined in bounded area
i. There must be no reasonable means of escape that P can reasonably discover
1. Unreasonable Way Outs: Dangerous, disgusting, humiliating, hidden
5. Elements of Intentional Infliction of Emotional Distress
a. Extreme and outrageous conduct: Exceeds all bounds of decency tolerated in a
civilized society
i. Mere insults are not considered outrageous, even if D uses insults with desire to
produce emotional distress
ii. Hallmarks of outrageousness
1. Conduct in question is repetitive in nature
2. D is common carrier or innkeeper and acts deliberately to produce
distress
a. Common carriers: Transportation companies
b. Innkeepers: Hotels
3. P is member of fragile class
a. Young children
b. Elderly people
c. Pregnant women
iii. Targeting known sensitivity is outrageous: If D has prior, advanced knowledge
that P has particular emotional sensitivity and D deliberately targeted that
sensitivity
b. Severe emotional distress
i. No particular type of evidence is mandatory: P can prove this however she
wishes to do so.
1. P suffering physical symptoms (tremors, shaking, etc)
2. P saw the care of a doctor
3. P missed work
4. P taking anti-anxiety medication
5. Testimony by those who P and testify that P doesn’t seem like herself,
that she cries all the time, or doesn’t socialize anymore, etc.
ii. The element of severe emotional distress is left to the jury and is subjective
1. If fact pattern negates the thing P must prove (i.e., saying P is mildly
annoyed) then it is not severe emotional distress
6. Elements of Trespass to Land
a. Physical invasion
i. By person: Physically entering on foot or drive on it
1. Deliberate act is required: You have to go deliberately intend to go to
the location
2. Awareness of boundary is not needed: But you do not have to be acting
in knowledgeable defiance of somebody’s property rights. If you don’t
know you are trespassing, but you still committed deliberate act to go to
the location, then still liable
ii. By object: Throw something tangible on the land
b. Of land
i. Land includes air above and soil beneath to reasonable distance
7. Trespass to Chattels and Conversion
a. Trespass to Chattels: Intentional interference with P’s personal property that warrants D
pay damages (small harm)
b. Conversion: Intentional interference with P’s personal property so serious that warrants
D pay property’s full value (big harm)
c. Interference with personal property
i. Personal property: Everything you own other than real estate
ii. Interference: Deliberate damage item OR Deprive P of item
d. Mistake not defense: If D makes mistake and thinks item is theirs, that is not a defense
8. Consent
a. Defense to all intentional torts
b. Must have legal capacity: Did P have legal capacity
i. A person who lacks legal capacity cannot give valid consent
ii. Limited capacity: They can consent to those invasions that they can understand
1. Applies to children and people with intellectual disabilities
c. Express consent: Words giving permission
i. Spoken or written words that give D permission to act
ii. Exception for fraud and duress: Fraud and duress negates consent
d. Implied consent – 2 types
i. Social custom and usage: If P voluntarily goes to a place or voluntarily chooses
to engage in conduct where certain personal invasions are routine, then the law
assumes P understood that and treats P as having consented to those invasions
ii. Body language consent: D’s reasonable interpretation of P’s objective conduct
and the surrounding circumstances
e. Scope of consent: Exceeding scope results in liability
9. Protective Privileges: Each of the protective privileges involve a response to a threat that is
coming from P. If the threat is coming from another source, then D cannot use protective
privileges
a. Self defense
b. Defense of others
c. Defense of property
d. 2-part analysis for each protective privilege –
i. Proper timing: D has to show proper timing. Threat that D is responding to must
be happening right now or it must be imminent
1. Cannot be “too late” needs to be in the heat of the moment
ii. Accuracy: D must have a reasonable belief that the threat is genuine
1. Shopkeeper’s privilege allows a merchant to detain a customer based on
a reasonable belief that the customer has shoplifted, if the detention is
done for reasonable amount of time and in reasonable manner
e. Protective privileges allow reasonable force: D may use necessary force under the
circumstances. (i.e., fight fire with fire not a nuclear weapon)
i. No duty to retreat in majority of states including GA, you can stand your ground
ii. Majority: In most states, there is a presumption that if someone invades your
home, they pose a deadly threat to your family, and you can use deadly force
against them since you had reasonable fear of deadly harm
iii. Georgia: In Georgia, if the home intruder entered in a violent manner or if the
entry was for the purposes of committing a felony, and if D had reasonable belief
that deadly force was necessary to prevent harm to residents or to prevent a
felony, they may use such deadly harm
iv. D can never use deadly force to protect property including personal property
and real estate
10. Necessity Defenses to Property Torts: Only applies for trespass to land, trespass to chattels, or
conversion. Two types –
a. Public necessity: D acts in emergency situation to protect community
i. When conditions met, this is an absolute defense
ii. Example: Fire spreading by wind, hurricane, etc.
b. Private necessity: D acts in emergency situation to protect his own interests
i. Limited or qualified defense
1. D must pay compensatory damages to property owner
2. D not liable for nominal or punitive damages
 3. D can remain as long as emergency continues
Negligence
1. Elements of Negligence: Duty, Breach, Causation (Factual & Proximate), and Damages
2. Duty: P must show that D owed a duty of care and specify what that duty is
a. Legally imposed obligation to take risk reducing precautions for benefit of others
b. To whom do you owe a duty? You owe a duty to foreseeable victims within the zone of
danger
i. Unforeseeable victims: If you are outside the zone of danger, you are an
unforeseeable victim and thus you are not owed a duty of care
ii. You owe a duty of care to the people near you. If someone is super far away and
gets hurt, they are unforeseeable and will lose
iii. Exception: Rescuers are always foreseeable and owed a duty of care and will
be able to recover even if they begin the problem out in left field
c. How much risk reduction is required? You take the same account of precautions as would
have been taking by a reasonably prudent person acting under similar circumstances
i. Reasonably prudent person standard:
1. Compare D to the hypothetical person
2. No allowance for D’s shortcomings
3. Objective standard
ii. Exception for Superior Skill or Knowledge: If D that superior skill or
knowledge that will be taken into account in regard to the reasonably prudent
person. The hypothetical reasonably prudent person with same superior skills or
knowledge
iii. Exception for Physical Characteristics Where Relevant: Where relevant
incorporate D’s physical characteristic
1. Only raise this if D’s physical characteristics are relevant to the facts of
the problem
d. Special Standards of Care
i. Special Standards of Care for Children
1. MBE: Under age 5 – No standard. No duty of care and cannot be liable
for negligence
2. Georgia: Children under 13 immune from torts, so cannot be liable for
negligence
3. Children over the requisite threshold: These children are held to the
standard of a hypothetical child of similar age, experience, and
intelligence acting under similar circumstances
a. Applies to children between 5-18 on the MBE and children 13-
18 in Georgia
b. Subjective standard
c. Exception for Child Engaged in Adult Activity: If a child over
the requisite threshold is engaged in an adult activity, use the
reasonably prudent person standard
i. Adult activity: Operating a motorized vehicle (includes
farm equipment, jet skis, water boats, etc.)
ii. Special Standard of Care for Professionals
1. Same care as average member of their profession providing similar
professional services
a. Compare to real word, not imaginary
b. Average, not reasonable
c. Custom of profession sets standard
d. D needs to conform to what is being done by their colleagues
 2. Usually a malpractice claim
3. Professionals: Medical professionals, lawyers, accountants, etc.
iii. Special Standard of Care for Possessors of Real Estate and Land: Deals with
the duty owed to those who come on the land with regard to hazardous objects or
conditions on the property
1. Premises liability: Standard of care depends on status of entrant
a. Unknown trespasser: Possessor owes no duty of care to
unknown trespasser
b. Known or Anticipated Trespasser: Pattern trespassing in the
past. Regular and consistent trespassing on particular chattel or
real estate
i. Duty IF: There is only a duty of protect with respect to
those hazards that meet 4 conditions:
1. Artificial condition: Something constructed by
human beings
2. Highly dangerous: A condition that could kill
or severely injure them
3. Concealed from trespasser: The condition
must be concealed from trespasser. It has to be a
hidden, not apparent hazard
4. Known by possessor: The condition has to be
known by the possession in advance
5. Known, man-made death traps on the land
c. Licensee: Enters land with permission (express or implied) but
without financial benefit to possessor
i. Examples of licensees:
1. Social guests
2. People who come to your door for their own
agenda, they have implied permission to knock
on your door (missionaries, lobbyists, girl
scouts)
ii. Duty IF:
1. Concealed from licensee: Hazardous condition
must be hidden
2. Known by possessor: Hazardous condition
must be known in advance by possessor
3. Protect licensees from all known traps
d. Invitee: Enter land with permission for financial benefit of
possessor
i. Includes when open to public at large
ii. Example: Customer of a business
iii. Duty IF:
1. Concealed from invitee: Hazard concealed
from the invitee
2. Known by possessor OR could have been
discovered through reasonable inspection:
Reasonable inspections take place at reasonable
intervals and are reasonable thorough, some
things might be undiscovered in light of
reasonable inspection. Factors to look at: type
of property, who comes on that property and
 how often, how expensive is the inspection,
what do other property owners do in similar
areas
3. All reasonably known traps
e. How to Satisfy Premises Liability Duty:
i. Eliminate hazard condition
1. Repair, or
2. Remove
ii. Warn about hazard condition
1. Must be adequate and complete
f. Firefighters and Police Officer: No duty owed for risks
inherent to job
i. Firefighter’s Rule: Risk of getting burned, smoke
inhalation, risk of falling debris
g. Trespassing children: A property possessor owes a trespassing
child a duty to exercise reasonable prudence under the
circumstances to protect from artificial hazards on the land
i. Does not apply to naturally occurring conditions
ii. Ask yourself, is a kid likely to trespass – are their
children in the immediate vicinity
iii. Attractive nuisance: If there is something on land that
will draw children in or appeal to them, you have to
childproof your property
2. Note: Possessor not always owner
3. If someone comes on a piece of real estate and they are injured by
activities being conducted on land, no special duty of care, use ordinary
reasonably prudent person standard of care
iv. Statutory Standards of Care
1. Negligence per se
a. Legal – Statute is legally appropriate
i. P borrows statute as alternative standard of care to
reasonably prudent person standard
b. Factual – D violated statutory command
i. Violation of statute establishes duty and breach
c. Criminal statute may replace duty of care IF:
i. P is within protected class
1. Example: Patients, inmates, children, students,
customers
ii. Harm suffered is within risks statute is trying to
prevent
1. Specific risks (i.e., risk of getting burned)
iii. Class of person/class of risk test
d. If statutory standard of case does not apply, use reasonably
prudent person standard of care
e. Exception to Statutory Standard of Care: Do not borrow the
statute IF
i. Compliance would have been more dangerous
ii. Compliance would have been impossible
iii. If either exception applies, use the reasonably prudent
person standard
2. Affirmative Duties to Act
 a. Generally, NO duty to act affirmatively
b. If choose to act, must do so as reasonably prudent person
under circumstances
c. No duty to rescue
d. Exceptions Where There is Duty to Act
i. Relationship between parties or D caused the peril
ii. Preexisting relationships where duty is owed:
common carrier/passenger, innkeeper/ guest,
employer/employee, business owner/business customer,
family members
1. There is a trend to expand this to any two people
who are social acquaintances (only mention this
on the essays)
iii. Duty owed is NOT duty to rescue, it is a duty to act
reasonable under the circumstances
1. Does not have to put life in jeopardy
iv. Good Samaritan Laws: Insulate negligent rescuers
from liability
1. On MBE, assume there is no good samaritan law
2. Georgia Good Samaritan Law: Insulates
individual who voluntarily, gratuitously renders
aid in emergency from liability for ordinary
negligence
v. Negligent Infliction of Emotional Distress: These are pure emotional distress
cases – D was negligent, no physical harm to P
1. In physical injuries cases, P can also recover emotional damages. For
pure emotional distress, P has to prove more elements
2. Near Miss Case: Negligent D almost injured P, but P escaped physical
injury however it was a close call
a. In addition to negligence, P must show –
i. P in zone of physical zone: Prove that it was a near miss
ii. P suffers physical symptoms from distress
b. Georgia does NOT recognize near miss. Georgia requires that P
suffers an injurious impact
3. Bystander Case: D negligently injures 3rd party causing P emotional
distress. Negligently D kills or severely injures X causing P is very sad
and emotionally upset because of what happened to X
a. In addition to negligence, P must show –
i. P and 3rd party closely related
1. Closely related: Spouse, parent, child
ii. P present at the scene and observed event
b. Georgia does NOT recognize bystander claim EXCEPT when:
i. Both parent and child physically injured, AND
ii. Child dies
4. Business Relationship Cases: P and D are in preexisting business
relationship. P can recover if highly foreseeable that careless
performance by D will produce emotional distressas
a. Example [Patient/Medical Lab]: Highly foreseeable that if a
medical lab doing testing for serious illness does it negligently
and provides careless false positive results that emotionally
distress the patient
 b. Example [Customer/Funeral Parlor]: If the funeral establishment
does their work carelessly, it’s highly foreseeable that they will
enhance your distress and you can recover for that

3. Breach: Concrete, specific behavior by D that falls short of relevant standard of care
a. Breach can be affirmative care or omission
b. It is not enough to identify the breach conduct on an essay, you must explain why the
conduct falls short of the standard of care
i. Essay Tip: Identify the wrongful conduct and give a reason why the conduct
should be considered wrongful. Plaintiff will allege that the breach here was
[insert facts]. Plaintiff will allege that this was unreasonable because [insert
reason]. Change the wording IF special duty of care applies
c. Res Ipsa Loquitor: Doctrine used by P who lacks information about D’s breach. P does
not know what D did wrong, so doctrine allows P to provide a substitute for direct
evidence of a breach
i. P must show –
1. Accident is normally associated with negligence
2. Accident would normally be due to negligence of someone in D’s
position
a. Need to show that P is suing the right person
ii. Establishing res ipsa loquitur means no directed verdict: Jury remains free to
come either way
iii. Georgia: Res ipsa loquitor unavailable for medical malpractice
4. Causation
a. Factual Causation: P establishes a connection between breach and harm
i. But For Test: Injury would not have occurred but for D’s act or omission
1. D’s rebuttal to but for cause argument begins with even if
ii. Merged Causes: 2 or more Ds acting independently each commit a breach
combining into a single indivisible harm to P
1. If 2 Ds + 2 breaches + merged causation  use substantial factor test
instead of but for test
2. Substantial Factor Test: D liable if breach contributed in
significant/substantial way to ultimate injury
3. Multiple Sufficient Causes: If both breaches could have caused the
harm by themselves, then label them both breaches as substantial factors.
If both breaches both to be substantial factor, Ds held jointly and
severally liable
iii. Unascertainable Cause: 2 acts, only one of which causes injury, but unknown
which one
1. Unascertainable cause shifts burden of proof to Ds. The burden is on D
to explain why their breach could not have been the cause. If they fail to
meet the burden, they are held liable. If both fail, they are jointly liable
b. Proximate Causation: Think of this as fairness, but don’t use this word on exam
i. Foreseeability Test: Was the injury that occurred to P a foreseeable consequence
of the breach committed by D?
1. If yes, then it would be fair to make D pay
2. If not, then it would be unfair to make D pay
ii. Foreseeability Guidelines: These don’t always work, but useful to analyze
1. Geographic distance
2. Passage of time
 3. Prior occurrence: If something happened before, it is foreseeable than it
could happen again
4. On essay, use your common sense. P will argue it was foreseeable
because. D will argue it was foreseeable because. Conclude by saying
this is a question for the jury – do not always have to come to a bottom-
line answer
iii. Common Foreseeable Intervening Forces: The answer in all 4 of these
scenarios is to hold D liable. P wins in all of these cases. Original actor should
pay because they are the proximate cause. Good chance one of these comes up
on the MBE
1. Medical malpractice: When doctors make things worse by intervening,
D still liable
2. Negligence of rescuers: When good samaritan makes things worse by
intervening, D still liable
3. Protection or reaction forces: If D negligently creates a dangerous
situation, it is foreseeable that people will act in great haste to protect
themselves and as consequence they may cause enhanced injuries or new
injuries. D is liable
4. Subsequent disease or accident: If D leaves someone feeble,
debilitated, disabled, they may get a follow up injury. D is liable
5. Damages
a. Eggshell Skull Doctrine: Once P has established all other elements of claim, P receives
ALL damages suffered, even if surprisingly great in scope
i. Not limited to negligence claims, this applies to every claim in torts
b. Georgia limits punitive damages to $250,000
i. EXCEPT: Products liability actions OR when D acted with specific intent to
cause harm or while under the influence of alcohol or drugs
6. Defenses
a. Comparative Negligence: D shows P failed to exercise proper care for own safety
i. P should exercise reasonable prudence to protect herself and should observe
self-protective statutes
ii. If D shows P failed to exercise proper care: Jury will be instructed to assign
percentage numbers that reflect their respective degrees of fault
1. P’s recovery is reduced based on P’s percentage fault
2. Example of calculation of damages:
a. P proves $100,000 in damages
b. Jury finds D 80% at fault and P 20% at fault
c. P’s damages reduced by 20%
d. P will recover $80,000
iii. Georgia has partial comparative negligence: P may NOT recover if 50% or
more responsible
1. In Georgia, children under 13 are not liable for negligence BUT age 6 is
cutoff for contributory negligence
2. Last Clear Chance Doctrine: Person with last clear chance to avoid
accident liable, prior contributory negligence disregarded
a. If D after his initial breach becomes aware that P is in a position
of danger “helpless peril”, then any prior negligence of that P is
disregarded
b. If P, after D’s breach, could have avoided harm to herself by
exercising reasonable care at a later point in time, she would
recover nothing
 3. In Georgia, implied assumption of risk is a separate defense that will
totally exculpate D
a. If P knows that D is acting negligently and voluntarily chooses to
interact with D and encounters the risks that D creates, if any
harm subsequently occurs P will be out of luck

Strict Liability and Miscellaneous

1. Strict Liability: Liability regardless of the amount of precautions you’ve taken
a. Liability for Animals
i. Domesticated Animals (house pets and farm animals): Generally, NO strict
liability. D is not liable if his domesticated animal hurts someone
1. Exception: If D has a domesticated animal and he has awareness that the
animal has dangerous, vicious propensities, there IS strict liability
a. Applies when dog has bitten someone previously
b. Exception to Exception: Strict liability NOT available to
trespassers. If D has knowledge of dangerous propensities, no
strict liability if victim is a trespasser on his property
ii. Wild Animal: Strict liability if possessed. D is strictly liable for wild animals
b. Abnormally Dangerous Activities: Imposes strict liability on anyone who conducts
them
i. Can’t be made reasonably safe through the exercise of ordinary care: Even if
D did what a reasonable person would do, there is still residual amount of risk
ii. Uncommon in area: It is uncommon in the area where it’s conducted
iii. Common Examples of abnormally dangerous activities –
1. Explosives
2. Dangerous chemicals or biological materials
3. Nuclear energy or high dose radiation
c. Products Liability Claim
i. Comes up in multiple areas, not just strict liability. Read the question
1. Could be negligence claim
2. Could be UCC claim
3. Could be misrepresentation or fraud
ii. Elements for Strict Liability
1. D is merchant: Someone who routinely deals in goods of this type
a. Casual seller NOT merchant
b. Service provider NOT merchant
c. Commercial lessor IS a merchant
d. Everyone in distribution chain IS merchant
i. No requirement of privity
ii. Georgia limits strict liability to manufacturer, retailers
are essentially immune
2. Product is defective
a. Manufacturing defect: Product emerges from manufacturing
different from others and more dangerous than consumers would
expect
i. Product deviates in a material way from the
manufacturer’s specifications that renders the product
unreasonably danger to the user
b. Design defect: Risks associated with product’s design outweigh
utility of design
 i. P must show alternative design: If P shows the
existence of a hypothetical safer, practical, and
economically viable alternative design, that establishes
that the version marketed by D was defective in design
and D will be liable in any injuries resulting from the
design defect
1. Would have been safer
2. Was practical
3. Was economically feasible
c. Information defect: Hidden risks without adequate warnings or
instructions
i. Adequate warnings: In order to be adequate, the
warning has to be –
1. Prominent
2. Comprehensible
3. Provide information about mitigating risk
3. Product was not substantially altered since leaving D’s control
a. Presumption that product moved in ordinary channels of
distribution has no alteration
4. P was making foreseeable use of produce at time of injury
a. Foreseeable does NOT mean intended or appropriate use
i. Misuses of product are still foreseeable
d. Affirmative Defenses –
i. Traditional rule is knowingly encountering dangerous situation created by D
bars recovery
ii. On the MBE, unless question mentions traditional rule, assign percentages of
comparative responsibility – jury assigns fault numbers and P’s recovery is
reduced
2. Nuisance: Interference with use/enjoyment of real estate
a. Interference must be substantial
i. Has to be intolerable, significant, and consequential
ii. Minor interference is not sufficient
b. Common types of nuisance cases:
i. Inconsistent land use cases: Involves 2 adjacent property owners and one is
making the other miserable
1. Immunity exists for farmers if the agricultural operation has been in
existence for at least 2 years so long as it’s in compliance with state and
federal permitting requirements
ii. Spite cases: D interferes with use/enjoyment of real estate out of spite
iii. Gross inconsideration cases
3. Vicarious Liability: Involves scenario where P will be suing 2 people
a. Active tortfeasor: Party whose affirmative conduct caused the harm
b. Passive tortfeasor: Party held vicariously liable based on relationship to active tortfeasor
c. Vicarious liability is always based on relationships
i. Employer and Employee: Employer can be held liable if employee acting
within scope of employment at time of accident
1. Intentional torts generally outside scope of employment
a. Exception: Intentional torts can be within scope of employment
if employee acting to further employer’s purposes
2. If occupation involves authorization to use physical force, misuse of that
force is within scope of employment
 ii. Independent Contractors and Hiring Party: Hiring party generally not liable
for torts committed by independent contractor
1. Independent Contractors: Work for multiple people, supply their own
tools, and are not closely supervised as they work
2. Exception: Business owner can be held liable if independent contractor
working on business premises and hurts customer on the premises
d. Georgia uses the term “imputable negligence” rather than vicarious liability
i. Say imputable negligence on the essays
ii. Not substantive differences, just different terminology
e. Negligent Entrustment (differs from vicarious liability): Represents a lack of
reasonable care on the part of the person who was not immediately involved
i. These are simple negligent cases, and you just ask would a reasonably prudent
person do the act or omission
ii. Examples: Giving guns to kids, giving keys to drunks, failing to do background
checks for employees
4. Joint and Several Liability: When there are multiple Ds, P can recover full damages from any D
that P chooses
a. Contribution: D seeks compensation from co-Ds. Only use when D paid damages to P
i. Comparative Contribution: Contribution imposed in proportion to relative
faults of various Ds
b. Indemnification: Full reimbursement to out of pocket D
i. Available IF:
1. Vicarious liability: D was only vicarious liable
2. Strict liability: P collected from a non-manufacturer. The non-
manufacturer can get indemnity from the manufacturer
a. Does not apply in Georgia because retailers cannot be held
strictly liable in Georgia for defective products
c. Georgia has eliminated joint liability. Fault allocated among Ds by the jury. Each D is
only liable for the percentage of fault that the jury assigned to that party
i. No contribution in Georgia
5. Elements of Defamation: A false statement that damages reputation
a. D made a defamatory statement, and that statement specifically identifies P
i. Defamatory Statement: Statement adversely affecting reputation. It is a factual
representation that reflects adversely on character
1. A pure statement of opinion is not defamatory because it’s not subject
to a true/false test
a. Opinion is actionable only if it implies specific facts
2. Name calling is not defamatory
ii. Don’t have to identify P by name – any identifying information is sufficient
1. If D’s statement refers to an unidentified member of a group instead of a
singular individual –
a. Small group: Everyone has claim
b. Large group: No one has claim
iii. P must be alive at the time the statement is made – defamation of a deceased
person is not actionable
b. Published to 3rd Party: Does not mean literally published
i. If the statement was made to the P and the P alone, in private, then no cause of
action for defamation
ii. Publication does NOT have be to be intentional
c. Falsity: P must show that the statement was false
i. The statement is factually inaccurate
 ii. Negative, but truthful things are not defamation no matter how much it hurts
reputation. But may be liable under one of the privacy torts
d. Fault: Degree of awareness that D had concerning the falsity of the statement
i. The absence of fault: Although the statement was false, D had a reasonable and
good faith belief that the statement was true, so D is not liable for defamation
ii. Fault Required Depends on P –
1. Private person: Sufficient to show that D made the statement
negligently (without acting reasonably in terms of verifying the accuracy
of the statement)
2. Public figure: P must show that the statement was made with
knowledge that it was false or with reckless disregard of its falsity
a. Making the statement with malice – D deliberately lied or
ignored very strong evidence that the statement was false
b. Public figures: Anyone in the public eye OR involved in an event
of public concern (i.e., criminal)
e. Damages: Don’t always require evidence and may be presumed
i. Libel cases: Defamation embodied in permanent form (written, printed,
recorded)
1. Damages are presumed
ii. Slander: Spoken or oral defamation
1. Slander per se: Words so clearly defamatory that ordinary person would
understand injury
a. Damages are presumed
b. Slander per se categories –
i. Business/Profession
ii. Serious crime
iii. Serious sexual misconduct
1. Georgia: P committed a debasing act which
may exclude him from society
iv. Loathsome disease: Leprosy or venereal disease
2. If slander is not per se, P must prove economic harm to recover damages
f. Affirmative Defenses to Defamation
i. Consent
ii. Privileges
1. Absolute privilege
a. Communications between spouses
b. Officers of government in connection with official work
2. Qualified privilege: Available on a case-by-case basis when there is a
public interest in encouraging candor
a. Qualified privilege only applies to statements made in good
faith and relevant in scope
b. Common Interest Privilege: Qualified privilege for statements
made to colleagues within the same organization
c. References and recommendations
6. Invasion of Privacy: These torts stem from common law privacy, not constitution
a. Appropriation: D uses P’s name or image for commercial purpose
i. NOT limited to celebrities
ii. Appropriation tort is primarily to recover emotional damages
iii. Example: Kellogg’s uses picture of Jaylen Brown on a cereal box to sell more
boxes of cereal, without his permission
 iv. Newsworthiness Exception: It is not a tort to put a picture of someone on the
front of a newspaper in connection with a story that he has done something that is
newsworthy (negative or positive)
b. Intrusion: Invasion of P’s seclusion in way that would be highly offensive to reasonable
person
i. You must be in a place where you have a reasonable expectation of privacy in
order to make this claim [i.e., home, hotel room]
1. Public or semi-public space not covered by this tort
ii. Common examples of behavior actionable under intrusion: eavesdropping,
wiretapping, intercepting emails, planting secret cameras in home, being a
peeping tom, listening at the keyhole
c. False Light: Dissemination of material falsehood about P that would be highly
offensive to reasonable person
i. P has to prove that D knew the statement was false or made the statement with
reckless disregard of its falsity
ii. Cause of action can be both defamation and false light but not always
iii. In a false light action, P recovers emotional damages
1. Whereas in a defamation action, P recovers economic damages
d. Disclosure: Widespread dissemination of confidential information about P not of
legitimate concern to public and highly offensive to reasonable person
i. Only applies if matter is not legitimate public concern
ii. Disclosure must be of a truly confidential fact: Things that you have already
shared are not truly confidential
iii. Examples: Doctor mails copies of your medical records to everyone at your law
firm or accountant mails copies of your tax return to everyone in your apartment
building
iv. Newsworthiness Exception: If it is newsworthy, then disclosure is non-tortious
e. Affirmative Defenses to Privacy Torts
i. Consent: Applies to all four privacy torts
ii. Absolute and qualified privilege can be used to defeat false light and disclosure
claims
1. Example: Congressman makes false statement about his constituent. He
cannot be held for false light invasion because even though all the other
elements are met, he has an absolute privilege, he is an officer of the
government acting within the scope of his governmental responsibilities