Studydroid is shutting down on January 1st, 2019

Bookmark and Share

Front Back
multistate rule of STRICT PRODUCT LIABILITY,
The essential elements are:
(1) def. is a seller of the product;
(2) def. is in the business of selling the product;
(3) the product is defective; AND
(4) the defect causes injury.
STRICT LIABILITY requires: (1) abnormally dangerous activity; (2) causation linking the abnormally dangerous condition with the injury; AND (3) physical injury to persons, real property, or personal property.   Courts analyze “abnormally dangerous activity” [favored as indicated in brackets] with reference to five factors (not conjunctive, not disjunctive): (1) the extent of the risk [high] (i.e. loss), if loss the risk materializes; (2) ability of actor to eliminate risk by exercising care [low]; (3) nature of the activity: whether it is abnormal, i.e. not common usage [yes]; (4) location of the activity: whether appropriate [no]; (5) social utility of the activity [low].
Attractive nuisance is a form of landowner negligence liability to a plaintiff-trespasser who is a minor.  The conjunctive elements of the doctrine supersede the standard-of-care test for trespasser liability. State statutes may specify the maximum age of the child-plaintiff who may take advantage of the doctrine, e.g. 14.  Regardless, though, note that element (c) effects a sliding scale where the older the child, the less likely he or she will be able to take advantage of the doctrine.   ATTRACTIVE NUISANCE liability requires: (0) (preconditions) a child-trespasser-pl. enters on def.’s real property, and thereon encounters a highly dangerous and artificial condition; (1) as to the place, the landowner knows or has reason to know that children are likely to trespass there; (2) as to the condition, the landowner knows or has reason to know of an unreasonable death-risk with which children are likely to meddle; (3) the children do not discover the risk because of their youth, and they do not realize the risk of entering into the dangerous area; (4) the utility of the condition is low, and the burden of eliminating the risk is high, relative to the high risk of the condition to children; AND (5) landowner fails to exercise reasonable care to make safe or warn.
CONTRIBUTORY NEGLIGENCE has the same elements as negligence.  As an affirmative defense, its analysis pertains to the plaintiff, with the burden of proof on the defendant.   COMPARATIVE FAULT works the same way, but sends the question of percentage-fault allocation to the jury rather than effecting a complete defense.  In PURE COMPARATIVE FAULT, plaintiff's recovery is reduced in proportion to plaintiff's fault.  In MODIFIED COMPARATIVE FAULT, plaintiff's recovery is reduced in proportion to plaintiff's fault, but plaintiff may not recover anything from a defendant bearing less fault than plaintiff.   Because contributory negligence calls for a “negligence” analysis, the standard of care is tested objectively (unlike AOR).   Remember that contributory negligence is a common law doctrine.  As a complete defense, it is superseded by comparative fault in the 46 states where comparative fault has been adopted.  Note that some jurisdictions (especially foreign common law jurisdictions) may still refer to “contributory negligence” or “contributory fault” to refer to comparative fault after the adoption of such a system.  The specifics of how comparative fault works in a jurisdiction always depend on analysis of the adopting instruments, whether statutory or case law.  
Notes on Imputation of Negligence
There are common law rules of imputation of negligence, where the negligence of one party is imputed, or is not imputed, both for purposes of defendant’s negligence and for purposes of plaintiff’s contributory negligence. These rules carry on in comparative fault systems. The imputation is strict, meaning it derives from the existence of the relationship only, and not from any fault of the imputee.   Negligence typically is imputed in case of these relationships, when the negligence occurs within the scope of the relationship:
(1) employment (you have already seen this, through respondeat superior), (2) joint enterprise (e.g., business partnership), and (3) “consequential damages,” i.e., when a party's position in litigation is based on a financial interest in the negligent party (usually imputation of contributory negligence).   The latter item refers to the situation when the plaintiff’s recovery is dependent upon a financial interest in the injured party, for example when a husband seeks loss of consortium damages upon negligently inflicted injury to his wife. The husband’s recovery is limited by the wife’s contributory negligence or comparative fault.   Negligence typically is not imputed in case of these relationships, barring operation of one of the imputation rules above:
(1) spouse-spouse, (2) parent-child (though bear in mind that the parent might still be financially responsible for the child’s debts), (3) personal property bailee-bailor (e.g.., coat checker-coat owner), and (4) vehicle driver-passenger.   Common law imputation rules are often varied by statute, for example to create (fault-based, not merely financial) liability in the parent of a minor driver.
Elements of IMPLIED AOR Defense
Elements of IMPLIED AOR Defense   Implied AOR is much more difficult to define than express AOR.  Ultimately we will chart different variations of it.  For a loose, working definition meanwhile, understand implied AOR as follows.   IMPLIED AOR requires: (1) there is a risk of negligence or recklessness; (2) the risk is   (a) unreasonable,   AND   (b) specific; AND (3) the plaintiff assented to the risk   (a) knowingly,   AND   (b) voluntarily.   This rule represents a majority position, but remember that there is some confusion over the proper range of affirmative defenses to recklessness. A jurisdiction may simply disallow assumption of risk as a defense to recklessness, or may say that consent or contributory recklessness is instead the proper defense.   On element (2), note that it is the risk itself that is unreasonable, not anyone’s conduct.  Thus while that test is objective, it is not the same as asking whether plaintiff acted reasonably, which is not (yet, anyway) part of the inquiry.  It is admittedly difficult to assess a “risk” as “reasonable” or “unreasonable” in the absence of an actor, but that is what a jury is asked to do.  Later we will have a hypothetical in which a plaintiff runs into a burning building to rescue a child.  In that situation, the risk is unreasonable, even though the plaintiff’s conduct may be described (immaterially at this point) as “reasonable.”   On element (3), the specification of “voluntary” is arguably duplicative, because common-law “duress” operates as an overriding plaintiff’s “reply” to the defendant’s claim of implied AOR.  Nevertheless, the term is almost universally specified as part of the definition of implied AOR, placing the burden of proof on the defendant.   Note that the specificity required by element (2)(b) may overlap with the plaintiff’s knowledge of element (3)(a).  In other words, sometimes, these elements go hand-in-hand, and we are double-checking to be sure that we have plaintiff assent.  If the contemplated risk is too generalized, plaintiff cannot be said to have had (specific) knowledge of it; at the same time, the plaintiff might not have assented to the specific risk because plaintiff had contemplated (had knowledge of) only a generalized danger.     In even a more loose shorthand than the above test, we will say there is implied AOR simply “when plaintiff knowingly and voluntarily assumed the risk.”  Elements (1) and (2) usually are not at issue.  Notice that at its core, then, implied AOR (element (3)) calls for a subjective test.  We are concerned with what was in the plaintiff’s mind, not what a reasonable person would have done.  The defense on this point is distinguishable from contributory negligence.
In MASSACHUSETTS, the legislature abolished the doctrine of implied assumption of risk by statute when the commonwealth adopted the doctrine of comparative fault.  A plaintiff's knowing and voluntary assumption of risk is now evidence of plaintiff's reasonableness or unreasonableness in a comparative fault analysis and nothing more.
However, Massachusetts courts have retained implied assumption of risk in one narrow application under the moniker of the "open and obvious danger rule."  This approach revives the common law defense "open and obvious" specially in landowner negligence cases.  The defense pertains when the dangerous condition was reasonably apparent (objective test), i.e., a personal of average intelligence would perceive and avoid the danger.  The effect of the defense is to refute the plaintiff's proof of duty in negligence based on land ownership.  It is because this rule negates duty, rather than operating as an affirmative and complete defense, that the rule is said to survive the statutory abolition of implied assumption of risk.  Notice that "open and obvious" performed this same function under Texas common law in Pursley, before Texas adopted comparative fault.

Whether Massachusetts would continue to recognize a "no duty" rule in case of sport or of a reasonable plaintiff is unclear.  The courts have recognized that statutes to handle skiing and professional-rescuer plaintiffs are animated by a "no duty" theory and supersede the adoption of comparative fault.  But it is not clear whether the courts would recognize a "no duty" theory to preserve implied assumption of risk at common law in any situation other than a landowner "open and obvious" case.
Historically in Massachusetts, the common law defense of assumption of risk was synonymous with the doctrine volenti non fit injuria, meaning that a voluntary actor cannot be injured.
The Massachusetts skier responsibility laws can be found at MA ST 143 § 71N to MA ST 143 § 71R. I'll attach the text of these sections for your information only. Surrounding sections dealing more broadly with public safety are cited in the sections dealing specially with ski facilities.
The statute sets out ski facility operator responsibilities and expressly states that compliance with the statutory responsibilities is evidence of reasonable care in any negligence case brought by a skier-plaintiff.
More importantly and likely dispositive of any claim, a skier is charged with full responsibility for collision with any downhill person or properly marked obstruction, natural or manmade. A skier furthermore is charged presumptively with knowledge of his or her own ability and of all inherent risks of skiing.
Elements of EXPRESS AOR Defense
EXPRESS ASSUMPTION OF RISK requires: (1) there is a risk of negligence or recklessness, (2) plaintiff has expressly agreed to assume risk, AND
(3) the express agreement is not contrary to public policy.
This rule represents a majority position, but remember that there is some confusion over the proper range of affirmative defenses to recklessness.  A jurisdiction may simply disallow express assumption of risk as a defense to recklessness, or may say that consent or contributory recklessness is instead the proper defense.   Contract principles are heavily influential, but not dispositive, in determining whether plaintiff has in fact made an express agreement to assume risk.  Thus as in contract, fraud or duress will negate plaintiff's express assumption of risk.  Also like a contract, an express assumption of risk need not be in writing.   Public policy may be determined according to a flexible-factor test that originated in consumer-friendly California courts (Tunkl).  The factors as stated here favor invalidity of the agreement to assume risk.  Note that this test enjoys variable popularity in the states; courts in some jurisdictions are loathe to invalidate express agreements in any circumstances. (a) Def.’s business is a sort thought suitable for public regulation; (b) def. provides a service of great importance to the public, a practical necessity for some; (c) def. holds self out as welcoming all comers, or at least all who meet set criteria; (d) def. has a decisive advantage in bargaining strength; (e) def. presented pl. with a standardized (adhesion) contract provision of exculpation, with no opportunity to bargain for pl.’s protection against def.’s negligence, even if for an additional fee; (f) in the nature of the transaction, the def. controls the circumstances, subjecting the pl. to the risk of def.’s carelessness.  
Though stated within the plaintiff's burden in this rule for express assumption of risk, contra public policy may appear as an affirmative defense and works that way functionally in any event.  That is to say, defendant ultimately will have to do the heavy lifting to show an agreement void as against public policy.   Remember to distinguish express assumption of risk as a defense in negligence from consent, which is a defense in intentional torts.  The two are very similar but operate under different bodies of precedents.   In MASSACHUSETTS, a defendant may not disclaim liability for gross negligence (and by logical extension, recklessness).    There is also a statute in Massachusetts that disallows parking facility operators from disclaiming liability for mere negligence.  Wonder what must have happened to that legislator's car.

We will regard "informed consent" as a subspecies of negligence and a form of medical malpractice.  In some jurisdictions, though, "informed consent" is said to vitiate the defense of consent in battery and therefore to revive the battery cause of action.  Undoubtedly the tort of informed consent derives from the battery context, hence the confusing name.  What plaintiff is really claiming is the lack of "informed consent" to a medical procedure.
Through either procedural approach, whether as a cause of action in negligence or a response to a defense in battery, informed consent must be proved by the plaintiff. 
(1) doctor-patient relationship exists [duty];
(2) doctor-defendant does not reasonably divulge to patient-plaintiff sufficient information for patient to make informed consent to medical procedure [breach];
(3) because of doctor's omission, patient consents to procedure [proximate cause]:
  (a) to which patient otherwise would not have consented, and
  (b) to which a reasonable person otherwise would not have consented;
(4) because of doctor's omission, patient suffers injury that patient otherwise would not have suffered [proximate cause and injury].
Importantly, proximate causation in informed consent connects the unreasonable failure to inform with the injury.  This connection is distinguishable from causation in the usual medical malpractice negligence, in which proximate causation connects the unreasonable diagnosis or treatment with the injury.  Proper framing of causation is therefore important in informed consent and heavily burdens the plaintiff.  Notice that causation burdens the plaintiff in three respects in this test, including an objective check on the plaintiff's claim that upon proper information, he or she would not have undergone the injurious procedure.
Of course, the critical question in informed consent from the doctor's perspective is in the element of breach.  What exactly must a doctor tell a patient?  It would be impossible to run down every conceivable bad outcome.
The majority rule on breach tests the information provision against a reasonable medical practitioner standard, just as in ordinary medical malpractice by negligence. 
However, a growing minority position calls for testing the doctor's information provision against a reasonable patient standard, also called the materiality standard.  Under this approach, the doctor must inform the patient sufficiently to meet the expectations of a reasonable patient under the circumstances as the doctor knew or should have known them.  Otherwise said, the doctor must inform the patient of whatever would be material to a reasonable patient in making the consent decision under the circumstances as the doctor knew or should have known them. 
Doctors don't care for the materiality standard, because expectations are then set by patients and juries more than by the medical profession.  Lay evidence (in addition to expert evidence) may support proof under a reasonable patient standard, while a reasonable medical practitioner standard turns almost exclusively on expert medical testimony.  A doctor might with merit argue that the materiality standard introduces too much uncertainty into medical practice, and doctors will tend to overstate risks for fear of liability, jeopardizing patient care.
As to the substance of what the doctor must tell the patient, courts are guided by four factors:
(a) nature of the procedure;
(b) risks of the procedure;
(c) alternatives to the procedure;
(d) benefits to the procedure.
There are two defenses available specially to the informed consent tort (or responses in the battery context). 
First, a doctor-defendant may claim emergency if the patient under the circumstances was incapable of giving informed consent and delay to obtain it would have jeopardized the patient's well-being more than the procedure did.  Note that this defense is analogous to the concept of emergency consent in battery.  However, just as in consent to battery, a patient's inability to make a decision, perhaps because of unconsciousness, does not relieve the doctor of responsibility to obtain consent from next of kin, time permitting.
Second, in a tightly limited doctrine of privilege, a doctor-defendant may assert that fully informing the patient would in fact have worsened the patient's condition or rendered the patient unfit for treatment.  Simply that a patient would choose not to undergo a procedure that the doctor thinks the patient needs (maybe Dr. Bailey in our Grey's Anatomy clip) is not good enough.  But in one Hawai'i case, doctors were let off the hook for a desperately ill patient's iatrogenic paralysis after for failing to inform him of the paralysis risk from a potentially life-saving test to detect an aneurysm.  The doctors had feared that disclosing the potential downside of the test would aggravate the patient's heart disease and hypertension if not kill him.  Nishi v. Hartwell, 473 P.2d 116 (Haw. 1970)
MASSACHUSETTS recognizes informed consent as both a theory in battery and a tort in negligence.  The commonwealth employs the reasonable patient approach to breach.
Massachusetts courts offer a more detailed list of factors to be considered in determining the proper scope of information provision:
(a) nature of patient's condition;
(b) nature and probability of risks;
(c) benefits reasonably to be expected;
(d) inability of doctor to predict results (to the extent so);
(e) irreversibility of procedure (to the extent so);
(f) likely result of no treatment;
(g) available alternatives and their risks and benefits.
Incidentally, we covered lawyer malpractice only cursorily, but it is an analogous subspecies of negligence (as previously mentioned in the medical malpractice posting).  The note in the book (p. 218) on Conklin v. Weisman, 678 A.2d 1060 (N.J. 1996), shows rejection of "informed consent" in legal malpractice because the objectives of a client are considered too far-ranging and complex, in contrast with the patient who simply wants to get better.  But some courts have indulged informed consent in legal malpractice when a client retains a lawyer for guidance on a single, narrow, and discrete decision.  There isn't enough case law yet to say that Conklin doesn't represent the majority position, nor certainly to see the emergence of a "reasonable client" theory.  Needless to say, this state of affairs causes doctors to be suspicious of our motives in developing the tort of informed consent.
Spoliation of Evidence

"Spoliation of evidence" is a broad doctrine of evidence. Spoliation can occur in the course of a tort suit (and any other kind of suit, too), when one party--plaintiff or defendant--destroys evidence that compromises the other party's position in the litigation.  Courts have inherent power to award a range of remedies, or impose a range of penalties, when one party renders evidence inaccessible to an opponent.  At minimum, a victim of spoliation might be awarded a jury instruction permitting an inference adverse to the spoliating party.  Rarely, and usually only upon a finding of ill motive and intent, a court may hand one party a victory upon the other's spoliation.

Also rarely, but within the broad umbrella of evidence doctrine, spoliation of evidence may be a tort.  This is a minority approach.  We can think of the tort for now as a subspecies of negligence, because a defendant may be liable in spoliation for having negligently destroyed evidence that the plaintiff needed to prove a case against the defendant.  But spoliation actually belongs to a class of torts we'll encounter in the second semester; these torts span culpability levels.  So intentional spoliation is actionable too--which only makes sense.
(1) Plaintiff has a potential civil action against defendant;
(2) defendant has a legal or contractual duty to preserve evidence relative to the potential civil action;
(3) defendant with fault [negligence or intent] causes the evidence to be destroyed or otherwise inaccessible;
(4) absence of the evidence significantly impairs plaintiff's ability to prove the potential civil action; AND
(5) plaintiff suffers damages from inability to prove the potential civil action.
Massachusetts follows the majority approach: Spoliation is a doctrine of evidence only and not a tort.
Notes on Medical Malpractice

Notes on Medical Malpractice
Medical malpractice is simply negligence in which the defendant is a doctor and the plaintiff is a patient.  In the medical context, however, jurors tend to be prejudiced in favor of the plaintiff.  Cases are complex, usually requiring expert testimony, and it is readily apparent to the jury that something has gone wrong in the course of medical treatment.  But the bad outcome does not necessarily equate to negligence on the part of the defendant-doctor.
To counterbalance this tendency to prejudice, special jury instructions are used in the medical malpractice area to guide the jury's assessment of reasonableness, or the breach element of negligence.  You saw such an instruction posited by the Minnesota Supreme Court in Oulette.  Minnesota juries are instructed specially that a doctor is not negligent for choosing a treatment, however unsuccessful, if the treatment is within the bounds of accepted practice and based on information available to the doctor at the time; and that a doctor is liable for unsuccessful treatment only when the doctor has failed to exercise reasonable care in professional judgment, thus exceeding the bounds of accepted practice, or has failed to exercise reasonable care in obtaining information necessary to the exercise of professional judgment.  Often a jury is instructed as to emphasize the requirement of causation, that is, that the doctor is not responsible when a failure to exercise reasonable care cannot be established as a substantial cause of the bad outcome--which a sick patient might have experienced anyway.
In Massachusetts, as is common, medical malpractice is defined as a subspecies of negligence with its own adapted elements:
(1) plaintiff and defendant are in a doctor-patient relationship undertaken for professional diagnosis or treatment [duty];
(2) the doctor did not conform to good medical practice in diagnosis or treatment [breach];
(3) proximate cause connects the doctor's non-conformance and injury to the patient; AND
(4) the patient is injured.
Massachusetts jurors are instructed specially to inquire "whether the physician, if a general practitioner, has exercised the degree of care and skill of the average qualified practitioner, taking into account advances in the profession."  The instruction may be adjusted to hold a doctor performing in a specialty to comport with the higher level of knowledge or training that the specialty requires.  Jurors may be reminded that a bad outcome in the course of diagnosis or treatment is not dispositive of "good medical practice."
Another issue in medical malpractice is whether the standard of care is defined in terms of a geographic locality, or in broad terms not confined by locality.  This difference is arguably important, as the standard of care in a small rural clinic might be quite different from that in a large city hospital.  Massachusetts is representative of jurisdictions in permitting modification of the standard of care to account for a doctor's local community and the local availability of medical resources.  There are experts in law and medicine, though, who maintain that a standard of care should be universal, and that a test "under the circumstances" pays sufficient deference to locality.  That approach is predominant in legal malpractice, as in Kellos.
Effect of Legislative Standards of Fault
When legislation is not explicit and clear as to its effect in tort law, the standard of conduct provided for in the legislation may be imported to modify the standard of fault in tort.  A legislative standard is imported when:
(1) the plaintiff in the civil action is within a class of persons that the legislation means to protect;
(2) the hazard the plaintiff faced is the sort the legislation was meant to address; AND
(3) the harm of which the plaintiff complains is the sort the legislation was meant to avert.
When legislation provides a standard that the defendant violated, the majority approach is to create negligence per se, which essentially means that breach is conclusively established.  The defendant still may avail of affirmative common law and statutory defenses.
The minority approach is to allow the violation of legislative standard as evidence for the jury, without having to surmount the usual more-probative-than-prejudicial evidentiary hurdle.  Massachusetts follows this minority approach.
When the three-part test is not met, the violation of legislative standard must be tested under the usual evidentiary standard.  That test is likely to result in the exclusion of the violation from the jury's consideration as a fact more prejudicial than probative.
A small number of jurisdictions that use the negligence per se rule might downgrade a legislative standard that fails the three-part test to admission as mere evidence, rather than testing for prejudice.
Note that the test of Cort v. Ash (U.S. 1975), employed in many jurisdictions to determine when a private cause of action in state law is impliedly authorized by statute, is similar to the test for legislative-standard adoption.  The Cort v. Ash test is intended to guide a court in determining whether the legislature intended to create a private cause of action when the legislation doesn't say.  (Express legislative intent is superseding and dispositive.)  The conjunctive test supports implication of a cause of action when:
(1) plaintiff is among the class that the legislature intended to protect;
(2) legislation indicates, implicitly or explicitly, intent to provide a remedy;
(3) a civil remedy for the plaintiff would be consistent with the underlying scheme of the legislation; and
(4) the cause of action would arise in an area of traditionally state law concern, so that inferring an action based solely in federal law would be inappropriate.
Because Cort v. Ash arose specifically in the context of state causes impliedly authorized by federal law, the fourth part of the test is dispensed with when a court considers a cause of action implied by state legislation, a problem to which the test still is well suited.
As a matter of policy, the implied cause of action problem pits jurisprudential conservatives against jurisprudential liberals.  The former, conservative, are loathe to create a cause of action when the legislature has not given plain textual guidance to that effect.  The latter, liberal, are more inclined to create a cause of action in the interest of justice and then let the legislature clarify its position if no cause is intended.
Landowner Negligence
Elements of LANDOWNER NEGLIGENCE   These rules apply in cases of neligence when the defendant is a defendant only by virtue of his or her ownership of the land where the accident occurred.  These rules establish duty and breach in negligence, so causation and damages are still required.   These special rules turn on the identity of the plaintiff as a trespasser, licensee, or invitee. A trespasser is on the land without the consent of the owner, while licensees and invitees have the consent of the owner.  An invitee moreover is either a public invitee, invited to the land for the purpose for which it has been opened to the public, or a business invitee, who enters for a purpose connected to the owner’s business.  A majority of jurisdictions classify a social guest as a licensee, but a significant minority of jurisdictions classify a social guest as an invitee.   LANDOWNER NEGLIGENCE AS TO PL.-INVITEES: (1) reasonable investigation of the property would reveal the dangerous condition; (2) the property owner would not reasonably expect the invitee to discover the dangerous condition; AND
(3) the property owner failed to exercise reasonable care in making the condition safe or warning the invitee of the danger.   LANDOWNER NEGLIGENCE AS TO PL.-LICENSEES: (1) an unreasonably dangerous condition exists on the property; (2) the property owner knows or has reason to know of the dangerous condition; (3) the licensee does not know of the dangerous condition; AND (4) the property owner failed to exercise reasonable care in making the condition safe or warning the licensee of the danger.   Courts vary in their approaches to the trespasser problem.  Below are three rules, (A), (B), and (C); none can be said to dominate.  They are not as hard to remember as it might at first appear.  Rule (A) is quite simple.  Rules (B) and (C) differ only in disjunctive subpart (2)(a), which goes to the landowner’s awareness of the trespasser.  The other elements derive from licensee (1) and (2) (nature of danger and def.’s knowledge of it), from invitee (2) (plaintiff’s knowledge of it), and from the latter breach element common to the licensee and invitee tests (reasonable care).   LANDOWNER NEGLIGENCE AS TO PL.-TRESPASSERS, RULE (A): There is no landowner liability to trespassers.   LANDOWNER NEGLIGENCE AS TO PL.-TRESPASSERS, RULE (B): (1) an unreasonably dangerous condition exists on the property; (2) the property owner knows or has reason to know of the dangerous condition; (3) either   (a) the property owner knows or has reason to know of repeated intrusions onto the property,   OR   (b) the dangerous condition poses a death risk; (4) a reasonable trespasser would not discover the condition; AND (5) the property owner failed to exercise reasonable care in making the condition safe or warning the trespasser of the danger.   LANDOWNER NEGLIGENCE AS TO PL.-TRESPASSERS, RULE (C): (1) an unreasonably dangerous condition exists on the property; (2) the property owner knows or has reason to know of the dangerous condition; (3) either   (a) the property owner discovers the trespasser on the property before the accident occurs,   OR   (b) the dangerous condition poses a death risk; (4) a reasonable trespasser would not discover the condition; AND (5) the property owner failed to exercise reasonable care in making the condition safe or warning the trespasser of the danger.   All of the above special rules represent the majority approach to landowner liability; a significant minority approach is to apply the ordinary negligence rule, using a reasonable person analysis.  But that rule in this context is referred to as “reasonable person under all the circumstances,” which emphasizes that the identity of the plaintiff--whether trespasser, licensee, or invitee, in the common law parlance--affects our analysis of how a reasonable person would conduct himself or herself.  A jurisdiction might supersede the invitee-licensee distinction with reasonableness, but preserve a special rule, more favorable for defendants, in case of trespassers (as Mass., infra).   A special rule applies when the defendant is merely a landlord.  The rule derives from a common law policy meant to incentivize the leasing of real property, generally to make housing and business space more available. Historically, in furtherance of this policy, the common law experimented with flat "immunity" for landlords, but that experiment gave way to a rule that is the most demanding of plaintiffs.  It is similar to the licensee rule, but further requires that the landlord actually knows of the dangerous condition, and that even a reasonable person in the plaintiff’s position would not discover it.  Alternatively, the rule is similar to trespass rules (B) and (C), dispensing with the awareness of the trespasser--of course the landlord is aware of the lessor--and further requiring that the landlord actually knows of the dangerous condition, and that the plaintiff actually does not.   Special rule of LANDLORD NEGLIGENCE: (1) an unreasonably dangerous condition exists on the property; (2) the landlord knows of the condition; (3) the condition is concealed, i.e.,   (a) the plaintiff does not know of the condition;   AND   (B) a reasonable person in the plaintiff’s circumstances would not discover the condition; AND (4) the landlord failed to exercise reasonable care in making the condition safe or warning the plaintiff of the danger.   A special rule applies in some cases of child trespassers.  We’ll come to that later.   Finally, note that a majority of jurisdictions have adopted recreational land use statutes (RUSs), abrogating the common law in part.  These laws mean to reduce landowner liability to persons who enter upon the land for recreational purposes.  They vary in their impact on the common law system.  An RUS might, for example, move a landowner to trespasser liability rule (A), as to trespassers, upon the posting of “no trespassing” signs.  An RUS might move a landowner to the landlord rule for all plaintiffs, as long as the property remains undeveloped.
(1) Mass. has abolished the distinction between invitee and licensee, adopting the "reasonable care under all the circumstances" approach to lawful visitors.
(2) As to trespassers, Mass. allows them to sue only for landowner recklessness (called "wilful, wanton, and reckless conduct").  However, this rule is relaxed when the owner has actual knowledge that a trespasser has been rendered helpless on the property in a position of peril (for example, caught in a trap for intruders).  Then the landowner owes the trespasser an ordinary duty of care to extricate the trespasser from the peril.
(3) Landlord-tenant law in Mass. is quite complicated, but here is a general approach.  Up to the time the landlord surrenders control of the property, the landlord must exercise reasonable care to abate unsafe conditions of which the landlord has actual knowledge.  From the time that control over the property is transferred to the lessee, by statute, a landlord is required to exercise reasonable care to correct an unsafe condition of which the landlord is on notice (presumably by the tenant).  Duty in commercial leases, as opposed to residential, is governed by the lease contract to the exclusion of tort law.
(4) Mass. has an RUS at MA ST 21 s 17c. I'll post the text below, for your information only.  Essentially the statute puts recreational land users into the trespasser category, allowing suit only for landowner recklessness.
  <<An owner of land who permits the public to use such land for recreational purposes without imposing a charge or fee therefor, or who leases his land for said purposes to the commonwealth or any political subdivision thereof shall not be liable to any member of the public who uses said land for the aforesaid purposes of injuries to person or property sustained by him while on said land in the absence of wilful, wanton or reckless conduct by such owner, nor shall such permission be deemed to confer upon any person so using said land the status of an invitee or licensee to whom any duty would be owed by said owner. The liability of an owner who imposes a charge or fee for the use of his land by the public for recreational purposes shall not be limited by any provision of this section. No contributions or other voluntary payments not required to be made to use such land shall be considered a charge or fee within the meaning of this section.>
Elements of NEGLIGENCE (in General)
NEGLIGENCE: (1) Duty; (2) Breach; (3) Proximate cause; AND (4) Damages.   Negligence is a general cause of action in of itself, i.e., one can sue for “negligence,” while a person may not sue for “intentional tort” (except in the narrow case of the highly restricted prima facie intentional tort).   Note that these four elements are actually required for all torts, but we define them differently depending on the tort.  In cases of specific torts, these elements may be subsumed by other analyses.  For example, because, at law, all persons have a duty to avoid intentional or reckless harm to all other persons, we implicitly find duty present (almost) always in cases of specific intentional torts and of the general tort of recklessness.
Insurance Terms
As promised in class, these are the insurance terms from Mehr, et al., that I would like you to know.  You don’t have to know this material word for word; my interest is that you understand the concepts.   Risk is uncertainty concerning loss.   Insurance exists to manage risk by combining risk exposures so that individual losses become collectively predictable.   Risk exposure units may be divided into entities (e.g., houses, people) or time (e.g., years, lifetimes).   Insurance manages both pure risk, which can produce only loss, and speculative risk which can produce gain or loss.  Lightening, for example, produces pure risk, while home-buying produces speculative risk.   Insurance works because of the law of large numbers (which is one application of the law of averages).  This is the same principle by which a penny flipped again and again will yield a “heads” rate approaching 50 percent.   First-party insurance is when one insures against injury to oneself, such as an ordinary health insurance plan.   Third-party insurance is when one insures against injuries to another, as when an employer pays into a workers’ compensation system.   Note what insurance is not.  It is not simply an accumulation of funds to buttress future losses, such as a healthcare cafeteria plan.  Insurance also is not a risk transfer, such as a vehicle warranty.   Note the seven criteria for viable insurance pools: (1) large group of homogeneous exposure units; (2) loss produced by peril must be definite; (3) occurrence of loss in any one case must be fortuitous; (4) potential loss in one case must be large enough to cause hardship; (5) cost of insurance must be economically feasible; (6) chance of loss must be calculable; AND (7) peril must be unlikely to produce loss to a great many exposure units at one time.   Finally, note that the loss-spreading function of insurance is also, sometimes, a rationale in tort law, which shifts loss from one party to another.  When a corporate manufacturer is compelled to reimburse a single consumer for a product injury, the manufacturer increases the cost of the product to all consumers, thereby spreading the plaintiff’s loss through the society.  There’s good to this--equity suggests that the plaintiff should not bear the cost, after all--and bad to this--ultimate responsibility to pay falls on people not at fault.
SELF-DEFENSE: (1) def. is protecting against a threat of physical harm; (2) the threat is immediate; (3) the harm would result from the intentional or negligent act of the other; AND (4) def. employs force only to the extent necessary to avert the harm.   KEY: All of these elements are governed by a reasonable belief inquiry, thus both objectively and subjectively tested.   *  *  *   Special rule on SELF-DEFENSE WITH DEADLY FORCE: (1) as self-defense, supra; AND (2) one of the following (per reasonable belief):   (a) safe escape (a.k.a. retreat) is not possible;   OR   (b) safe escape (a.k.a. retreat) is possible, but defendant is in own home that is not also the attacker’s home.   Significant minority variation #1: Eliminate (2)(b). Significant minority variation #2: Eliminate all of (2). Note that “deadly” always means threatening death OR serious bodily harm.   As to retreat, remember the logic behind the rule to help you remember the rule:  When it comes to deadly force, we want people to retreat, if possible. But the one time that is not true is when the person is in his or her own home.  But in, say, a domestic violence situation, when the home is the home of both the plaintiff and the defendant, then again we want the person to retreat if possible.   The minority rules vary the thinking on retreat.  In variation #1, the courts say, you should always have to retreat, no matter where you are, unless it’s just not possible.  In variation #2, the courts say you should never have to retreat if someone’s trying to kill you; you should be allowed to stand your ground and defend yourself.  Thus these variations strike out in opposite directions, more and less permissive of self-defense with deadly force.   There are other variations as well, though they don’t rise to a level of prevalent acceptance such that I have set them out for your attention.  For example, in some jurisdictions that otherwise embrace the majority rule, unpleasant domestic violence circumstances have convinced the courts to dispense with the “also the attacker’s home” provision, allowing potential victims of domestic violence to stand their ground even when an avenue of retreat is available.   Massachusetts is by "castle doctrine" statute a majority-rule jurisdiction; see infra.
Special rule on DEFENSE OF OTHERS: (1) as self-defense, supra, but on behalf of another; AND (2) reasonable belief in necessity to avert harm must be factually correct.   Significant minority variation: Eliminate limitation (2).   Note that factual accuracy stands apart from objective reasonableness and subjective belief as yet a third standard.  The difference becomes significant especially in cases of mistake of fact (a concept you will explore more in criminal law).   Suppose you see an orc attacking a wizard.  You leap to the wizard’s defense.  As it turns out, you have stumbled upon two actors from a Renaissance festival.  The fight you witnessed was just practice for a show.  You subjectively believed that the wizard was in physical danger, and let’s say furthermore that a jury has determined that a reasonable person too would have misapprehended the situation and believed that the wizard was in physical danger.  Still, in a majority-rule jurisdiction applying element (2), your affirmative defense of “defense of other” would fail.  So much for good intentions.
Special rule on DEFENSE OF PERSONAL PROPERTY: (1) def. is exerting force to dispossess pl. of def.’s personal property; (2) request for return of property has been made and failed, or would be useless; (3) force is not deadly; AND (4) force is employed only to the extent necessary.   Once again, reasonable belief controls all elements.   *  *  *   Special rule on RECOVERY OF PERSONAL PROPERTY: (1) as defense of property, supra; AND (2) def. is engaged in immediate or continuing fresh pursuit.   Actions to defend or recover the property of another are, like defense of others, permitted on the same terms as the person who owns the property would be permitted to exercise; however, some jurisdictions impose limitations, such as that the necessity be factually correct, as in case of defense of others; or that the defender have a familial or duty-to-protect relationship with the person whose property is defended.   *  *  *   DEFENSE OF REAL PROPERTY: (1) pl. is intruding on def.’s real property; (2) request that pl. intruder leave has failed, or would be useless; (3) force is not deadly; AND (4) force is employed only to the extent necessary to repel the intrusion.   Once again, reasonable belief controls all elements.   Note that this is essentially the same as the rule for defense of personal property; the language is just changed to refer to intrusion rather than dispossession.   *  *  *   DEFENSE OF REAL PROPERTY BY DEADLY FORCE:
Same as defense of real property, except that deadly force is permitted when the defender reasonably believes that the intruder poses a death threat to the defender, or to a third party whom the defender is privileged to protect.   Note that the latter language, limiting the scope of protection of third persons, would easily encompass the defender’s immediate family in the family home.  Usually the privilege will encompass anyone in a home, when the defender is the owner.  But the situation can get more complicated if we’re not talking about a home, or if the defender is not the owner.  The defender does bear the burden of proving that state law requires an affirmative duty to protect.  You’ll see when we get to landowner liability that that issue can get sticky.  In practice, the question is usually moot, because the intruder bearing a death threat is indiscriminate as to whom he or she might harm.   Of all self-defense and related rules, this rule is the most likely to be subject to variation in a state that enacts by statute some form of “the castle doctrine.”  In the Senate confirmation hearing for Justice Sotomayor, legislators asked about the right of a person to use a gun to defend his or her home.  Their questions primarily alluded to the Supreme Court’s Heller decision, striking a D.C. gun ban under the Second Amendment.  It’s extremely unlikely that the U.S. Supreme Court would ever be called on to decide the tort question, as that is a matter of state law.  But the questions reflect a popular sentiment that the common law doctrine under this rule is wrong, and that to the contrary, state law should permit a person to exercise deadly force in defense of an occupied home without having to show a reasonable belief in a threat of deadly force posed by the intruder.   Mass. Note.  Massachusetts has an extremely limited "castle" statute, MA ST 231 s 85U, that simply effects the majority rule of self-defense/defense of others by deadly force when exercised within one's home.  The statute was adopted in 1985 after Massachuetts courts declined to follow the majority trend in common law and instead required retreat from the home, when possible, even in the face of an intruder bearing deadly threat.   *   *  *   DEFENSE OF PERSON OR PROPERTY BY MECHANIZED MEANS: Same as if the defender were present and acting intentionally.   Here, however, the “belief” part of the analysis can refer only to the defender’s intentions in setting up the trap.  The defender forms no “belief” at the moment of the attempted intrusion or dispossession, and the machine certainly does not either.  From that point onward, we must assume that the defender’s assessment of the specific circumstances would be the same as that of the reasonable person.   An animal not under the immediate control of its owner, though not “mechanized,” also triggers this rule.  Like a machine, an animal has neither “belief” nor “intent” at law.
Defense of Consent

Elements of CONSENT Defense   CONSENT: (1) plaintiff’s willingness for intentional, otherwise tortious conduct to occur; AND (2) plaintiff’s subjective intent to consent.   Note that communication of the plaintiff's willingness is not required, but in the absence of express communication, apparent consent requires that defendant reasonably understood plaintiff to have consented.  A reasonable understanding may be inferred from custom, such as greeting by hugging, absent an express termination of consent.   Emergency consent occurs when plaintiff faces a threat of death (or substantial bodily harm), and there is no time for defendant to obtain express consent.  Thus it's OK to push someone out of the way of an approaching car.  Apparent and emergency consent are both forms of implied consent.   Consent may be vitiated by defendant's misrepresentation, or by defendant's duress of the plaintiff.  Consent is a doctrine strongly rooted in equity, so other grounds also may be held to vitiate consent, such as when defendant's conduct was not only tortious, but criminal as to the plaintiff (see below), or when plaintiff's consent was procured by deceit.   Courts disagree over whether, or when, a plaintiff may consent to illegal conduct.  At one extreme, it is possible to see every battery as a criminal act, yet obviously consent routinely negates causes of action for battery.  At the other extreme, criminal laws designed to protect certain classes of persons--such as a law prohibiting sex with a minor--plainly mean to nullify the consent that the plaintiff (minor) otherwise appears to have given.  The Restatement takes the position that only upon the latter extreme is consent invalid, but authorities dispute that conclusion as an accurate account of a majority approach.  It might be best in a case to fall back on commonsense notions of equity on the facts to decide whether consent to illegal conduct should be upheld.   Consent in sport is an especially difficult problem.  Typically customs of the game are held out to define the point at which the scope of consent is exceeded and the foul becomes a tort.  But that standard is more easily recited than applied.  Also, the less professional the context of the encounter, the more tightly the court will draw the boundary of custom.  Thus an athlete-plaintiff in the NFL usually must resort to the authorities of the game to seek relief (Hackbart I), while a minor in grade school will sooner have hearing in the courts (Nabozny).  But there is still room for consent, even in informal contexts with children.  Remember the Vosburg court's reference to a license that might pertain to a playground kick?  That "license" was just a synonym for privilege, specifically, consent.
RECKLESSNESS: (1) Defendant knows OR has reason to know:    (a) that def.’s conduct creates an unreasonable risk of harm;    AND    (b) that there is a high degree of probability that harm will result;
AND (2) harm results.   Like the prima facie intentional tort (and negligence), you should treat recklessness as a cause of action itself in tort.  That is to say, recklessness describes both a state of culpability and a general tort.   Recklessness is very difficult to define, and jurisdictions vary greatly in their approaches to it.  Clearly it is a greater state of culpability than negligence, and it is a lesser state of culpability than intent.  But it has qualities of each.  Notice that the test itself is usually subjective ("knows"), going to the defendant's state of mind, but the test incorporates an objective component as to the severity of the risk of harm.  This formulation of the test also permits, alternatively, a hybrid approach ("has reason to know"), which is explained further below.  Little more can be said with certainty about recklessness as a multistate norm.   It might be helpful to think about recklessness sometimes as a stand-in for intentional torts, such as for the battery in Hackbart.  The context of consent on the playing field in Hackbart complicated the intent analysis.  But the Court of Appeals short-circuited that intent analysis by raising the possibility of liability for recklessness.  When recklessness performs this "intent-alternative" function, it is probably best understood as a subspecies of intentional tort.  But we will see recklessness later in other contexts, when it might better be described as a case of extreme negligence.    Because recklessness remains a fuzzy concept, not all of the ancillary rules for its use are well defined.  One point of confusion has been what affirmative defenses may negate a recklessness cause of action.  Consent seems an ill fit, because persons who consent to battery usually limit the scope of consent in a manner ill suggestive of permitting recklessness.  Consent in Hackbart would have defeated the point of approaching the problem as one of recklessness.  Some courts have engaged the concept of "contributory recklessness" as a defense to recklessness, obviously on the model of "contributory negligence," which we'll study later.  That might fit some circumstances, but requires jurors and defendants to parse levels of plaintiff culpability, which can get confusing.  The modern trend seems to be to allow comparative fault--another concept we'll study later in negligence--to operate as a defense to recklessness.   On the elements, note that the standard “has reason to know” is not the same as “should have known,” or its equivalent, “a reasonable person would have known.”  “Has reason to know” means (a) that the actor was (subjectively) aware of certain facts, AND (b) that a reasonable person (objectively) would have deduced [elements (1) and (2)] from those facts. We'll see this again soon in the context of landowner liability.  Often, this "has reason to know" standard marks a technical distinction that makes no real difference, and courts do confuse the language.  But the distinction would matter, for example, where the defendant (subjectively) did not know the underlying facts, but a reasonable person (objectively) would have inquired further and ascertained those underlying facts.  In that situation, the defendant cannot be reckless, but may be negligent.   Note again that element (1) incorporates in itself an objective standard: unreasonable risk of harm.  This standard is not a measure of the defendant’s conduct, but of the risk of harm.  
Reckless acts are often (but not in the Restatement) referred to as "willful and wanton misconduct."  The reference is unfortunate because it is not literally accurate and risks confusing recklessness with intent, malice, and Chinese food.
Merchant's Privilege
Elements of MERCHANT’S PRIVILEGE (Defense)   MERCHANT’S PRIVILEGE: Temporary detention by a merchant is permitted when: (1) the actor reasonably believes that the detained has taken goods from the actor’s premises, or is attempting to leave the premises without paying for goods or services rendered; AND (2) the detention is reasonable with respect to the following:    (a) the investigative purpose of the detention (including the summoning of law enforcement authorities)   (b) the area or physical scope of the detention (including the force used to effect detention);   AND   (c) the duration of the detention.  
Note that the merchant's privilege is an affirmative defense to false imprisonment as well as any intentional tort within the scope of the exercise of the privilege, such as battery or false arrest.
FALSE ARREST: Same as false imprisonment, but: (a) confinement is effected by asserted legal authority; AND (b) “complete” custody is effected by the detained’s submission to the asserted authority because the detained believes the authority to be valid, OR has doubts as to its validity.   A privilege to arrest is an affirmative defense to false arrest and to any ancillary tort, such as battery or false imprisonment.   ARREST PRIVILEGE: Actor had legal authority to detain, meaning the actor:
(a) reasonably suspected that the detainee committed a felony; (b) witnessed a breach of peace by detainee; OR (c) acted upon a warrant issued upon probable cause.   Note that at common law, the arrest privilege is available to both private persons and law enforcement officers.    Mass. Note 1.  In Massachusetts, a private actor exercising the arrest privilege must be factually correct that the person was subject to lawful detention, i.e., committed a felony, engaged in a breach of peace, or was the subject of an arrest warrant.    Mass. Note 2.  Massachusetts by statute extends the arrest privilege to law enforcement to abate the commission of any misdemeanor in the arrestor's presence upon probable cause.  MA ST 231 s 94A.
False Imprisonment
Elements of FALSE IMPRISONMENT   FALSE IMPRISONMENT: (1) actor’s intent to confine a person; (2) confinement within fixed boundaries; (3) confinement is “complete”; AND (4) person is conscious of confinement OR is harmed by it.
Note that "complete" is a term of art and means that the plaintiff could not escape without suffering injury.  Remember that complete confinement may be effected by legal authority asserted falsely but successfully.
Mass. Note: In class, I did not want to describe the means of escape as tested according to the plaintiff's reasonableness in availing of it, because that rule is not necessarily multistate doctrine.  I also don't want to over-expose you to objective testing until we get to negligence.  In Massachusetts, though, the objective test is used, so: if a reasonable person in plaintiff's position would avail of an escape route, then "complete" confinement is defeated.
Prima Facie Tort
Elements of Prima Facie Tort   PRIMA FACIE TORT: (1) intentional infliction of harm, (2) resulting special damages; (3) no excuse or justification; AND (4) the act otherwise lawful.   Note on element (1): This is double-duty intent (as in IIED).   Note on element (2): “[S]pecial damages” here means that offense to dignity is not enough; plaintiff must prove economic losses or physical injury.   Note on element (3): Excuse and justification are always available in tort as affirmative defenses, meaning that the defendant may plead and prove them to negate the plaintiff's case.  The appearance of excuse and justification as elements means that the plaintiff bears the burden of proof in the first instance to show no excuse and no justification.  Practically speaking, though, the defendant still will have to do the lion's share of the work to prove the plaintiff wrong.   Note on element (4): There is some disagreement in Burns Jackson Miller (not assigned, but mentioned in class) about the construction of this element, and it is arguable that the element exists only to expand the scope of the tort.  If that theory is correct, then unlawful acts may still qualify, and this item (4) is more a description than a requirement.  A strict reading of the test, however, indicates that if the act is unlawful and the plaintiff has another means of justice at his disposal--such as criminal law, or another tort that better fits the facts--the plaintiff ought to avail of that avenue.  Thus construction of this element in the case of an "unlawful" act is really up to the state court.
Elements of FRAUD   FRAUD: (1) def. made a false representation of fact; (2) def. acted with intent or recklessness as to false representation, the latter meaning def. knew the statement was false or acted in reckless disregard of its truth or falsity; (3) def. intended pl. to rely on the false representation; (4) def. induced pl.’s reliance (subjective), which is to say that the false representation was material to pl.'s decisionmaking; (5) pl.’s reliance was justified (objective); AND (6) pl. was injured as a result of reliance, not merely in dignity, but economic loss or physical injury.   "Fraud" is really a common name for a tort we might more scientifically call intentional misrepresentation.  "Fraud" also subsumes the closely related culpability level of recklessness (element (2)), like IIED does within its scope.  You should be aware though that there are other species of misrepresentation that are not intentional torts, namely negligent misrepresentation and innocent misrepresentation.  We're not studying those now.   Note that there is a significant but minority variation to the multistate rule set out above, by which element (2) requires, as well, “common-law malice,” that is, “moral guilt” or ill will.  This variation reflects the powerful roots of the fraud tort in the historic doctrine of "equity," as opposed to the historic doctrine of "law."  Courts want to be sure that the liable defendant is a "bad actor."
Note that like other intentional torts, defendant's culpability is tested subjectively (elements (2) and (3)), meaning we must ascertain the state of mind of the defendant in the case.  Remember that that's always a lot to ask of plaintiffs, who bear the burden of proof, so multiple conjunctive and subjective elements--like in IIED--makes life all the harder for a fraud plaintiff. 
But note too that--like we saw in assault through Navratil v. Parker--plaintiff's state of mind also is tested on the elements, both subjectively and objectively.  We can assume that plaintiff will testify that he or she relied on the defendant's representation (element (4))--the defendant may present evidence to the contrary--but plaintiff's reliance must also have been "justified" in the term of the test (element (5)), which in practice usually reduces to the familiar objective test of whether a reasonable person would have relied on defendant's representation.
A false representation of fact may occur through omission.  But the default rule is that defendant does not have a duty to disclose.  There is a series of exceptions to that rule, and plaintiffs relying on omission must fit their cases through them.  Those exceptions are beyond the scope of our studies at present.
Note that element (6) in this formulation incorporates both causation and damages, and that the damages component requires more than the nominal damages that may support, for example, a claim of assault.
There are no significant variations in Massachusetts to the majority multistate approach on the elements.
Elements of IIED
Elements of IIED   INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: (1) actor bears intent or recklessness as to both volitional conduct and the harm that Plaintiff alleges ("double-duty intent"); (2) actor engages in extreme and outrageous conduct; AND (3) conduct results in plaintiff's severe emotional distress, manifested in physical symptoms.   Outrageousness may be determined in reference to three factors: (a) the conduct itself; (b) the relationship between the parties; and (c) the known susceptibility of the plaintiff.
There is significant jurisdictional variation in the details of IIED, for example in the quality and quantity of evidence required to establish severity.  Massachusetts law is clear that physical manifestation of symptoms is essential.
Elements of BATTERY   BATTERY: (1) intent, as for an assault,   i.e., intent to cause offensive contact;   OR intent to cause apprehension of offensive contact; AND (2) offensive contact results.
Mass. Note 1: Precedents refer to "unjustified use of force" rather than "offensive contact."  Defendant seems to bear the burden of proof to show "justification," meaning that if Plaintiff says the contact was unjustified, then it was, until the Defendant shows otherwise. 
But don't confuse this defense with the broader notion of "justification" we will encounter later as an affirmative defense in torts generally.
Mass. Note 2: Commonwealth courts have held: A battering force must originate externally to Plaintiff's own actions. 
This can sound a bit confusing, so here is an example: Defendant sold a carton of milk to Plaintiff.  There was a dead mouse in the milk.  Plaintiff drank it.  Disgusting.  But not battery, because Plaintiff put the milk to her lips and drank it intentionally.  She can't "batter" herself.  Don't worry; Defendant may be sued in product liability and contract, just not for battery. 
I'm not sure this Mass. rule is essential, because you can reach the same result through principles of superseding causation (later) or by saying that Defendant did not intend Plaintiff's contact with bits of dead mouse.  But the Court held that the battering force originated with the Plaintiff herself, and that fact precluded the cause of action, so there you have it. 
Don't worry too much by the way (yet) about causation in intentional torts, which is something we'll revisit when we study causation in negligence.
Mass. Note 3: Recklessness suffices as a state of mind for battery liability.  Thus imagine: A person sets off in a car down an urban pedestrian walkway at night, believing that no one is around.  There is no intent to cause offensive contact or apprehension thereof.  But the conduct probably is reckless, because in an urban setting at night there might well be people about, and it's hard to see them.  When our driver hits someone, there is a battery based upon recklessness.
Usually this is not an issue because there also is a cause of action for general recklessness (we'll see shortly).  But the recklessness action is often ill defined in state law, so there might be extenuating circumstances that make it difficult to prove on the facts.  Or another factor, such as terms of insurance, might make a claim for battery more appealing than a claim for recklessness.  Or a lawyer might just plead poorly.  It's easier to amend a complaint to predicate battery on recklessness than to add a whole different cause of action.
ASSAULT: (1) intent, such that   (a) the intent is to cause offensive contact,   OR   (b) the intent is to create the apprehension of offensive contact; (2) plaintiff is placed in apprehension of imminent offensive contact; AND (3) plaintiff’s apprehension is reasonable, i.e., a reasonable person in the plaintiff’s shoes would experience the same apprehension.   Note that “imminence” is required and here compounds element (2).  I have left out "present ability" because in practice, that requirement is usually duplicative of the objective perception; that is, if the assailant is my young daughter, a reasonable person probably is not placed in apprehension.
Mass. Note: Massachusetts precedents require an "overt gesture" to effect assault, i.e., something more than mere words.
x of y cards