Professor Valerie Hans
Torts Fall 2022
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Intentional Tort of Battery
1) Harmful: Restatement (Second) of Torts §13
o Acted intending to cause harm and harm indirectly or directly occurred
2) Offensive: Restatement (Second) of Torts §18
o Acted intending to cause offensive contact and offensive conduct occurred
o Offensive = unpermitted (but super sensitives not considered unless defendant was
aware)
With the plaintiff’s person
o Not just actual body contact; making contact with anything physically connected with
plaintiff’s body / person
Cases and examples
o Eggshell skull rule: liable even if damages from P’s unusual trait or preexisting condition
o Vosburg v. Putney: intent to harm not needed, just intent to act
o Garratt v. Dailey: child pulling chair away and caused old woman to fall (direct contact
not required)
o Fisher v. Carrousel Motor Hotel: guy pulls plate away; sufficient if contact with something
closely associated with P’s person; also offensive
3) Intentional Infliction of emotional distress § 46
o Liable if extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress
o Third person: to member of immediate family whether or not it results in bodily harm or
to any person present if bodily harm results
4) Medical Battery
o Bang v. Charles T. Miller Hospital: Where alternative possibilities exist and no immediate
emergency, patient should be informed of potential outcomes before operation
o Kennedy v. Parrott: Surgeon will not be liable for battery or trespass on the body for
extending the scope of the operation during surgery without consent (§892D: lack
consent but emergency action required)
Causation
o But-for causation
Defenses
o Consent -- Restatement (Second) of Torts §892(1)
 O’Brien v. Cunard Steamship Co.: woman consented to vaccine and then filed claim; A
party is not liable if the alleged unlawful contact was justified, or the accusing party
otherwise consented to such contact
o Self-defense -- Restatement (Second) §63
 Actor privileged to use reasonable force to defend against harmful or offensive
contact, which they reasonably believe another is about to intentionally inflict
 Self-defense of others: you can defend person from attack only if the person being
attacked could have claimed self-defense
o §77 Defense of property: only reasonable, never deadly (Katko v. Briney spring gun)
o §263 Defense of necessity: only against property torts; destroy homes to stop fire
 §197: Necessity-based privilege to enter another’s land to avoid serious harm to
person, land, or chattels; entrant obligated to pay for whatever harm caused
 §263 May damage another’s chattels to avoid serious harm
 Ploof v. Putnam: Entry on another’s land may be justified by necessity (man docked his
boat and servant untied it)
 Vincent v. Lake Erie Transportation Co.: A party who damages the property of another
while acting out of private necessity must compensate the property owner for the
resulting damage (damage to dock when boat anchored to it to avoid storm)
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Both Battery and Negligence
Alternative liability / causation
o If unable to prove but-for, burden of proof shifts to defendants (Ds must prove which
one did it)
o Summers v. Tice: (quail hunting) two independent tortfeasors may be held jointly liable if
it is impossible to tell which one caused the plaintiff's injuries, and the burden of proof
will shift to the defendants to either absolve themselves of liability or apportion the
damages between them
o Ybarra v. Spangard: doctors and nurses all liable
Joint and several liability
o When: D’s acted together to cause the harm, or D’s acted independently but caused
indivisible harm, or it is impossible to allocate harm to either D’s conduct
o Joint: Ds can be joined in single lawsuit
o Several: Ds each liable for P’s damages, but P only entitled to proportionate recovery
o R3: liability for damages in proportion to share of responsibility
Market share liability
o P finds D with substantial share of market; burden shifts to D’s (escape liability if you can
prove it wasn’t you, otherwise liable for damages corresponding to percentage share of
product’s market)
o Sindell v. Abbott Labs: Company that made drug (DES) that pregnant women took but
gave their babies cancer
Concurrent and Successive Causation
o When two or more causal agents would, independent of each other, have caused P’s
harm
o Dillon v. Twin State Gas & Electric Co.: Boy playing on bridge would have fallen to his
death but grabbed a wire and was electrocuted to death, electric company still liable
even if he would have died anyway because they failed to take adequate precautions
Vicarious Liability
o Respondeat Superior: Masters are vicariously liable for the torts of their servants
committed while the latter are acting within the scope of their employment;
Restatement (Second) of Agency §219.
o Employers liable for employees’ negligent acts if acting within scope of employment but
not liable for negligent acts of independent contractors
o Coming and going rule: torts caused during a worker’s commute are not considered to
have occurred within the scope of their employment
o Frolic and detour: conduct outside of scope of employment, but employer could still be
liable  trucker stopping to get lunch
 Was purpose of trip predominantly to serve the master’s purposes?
 Did servant’s detour significantly deviate from the route necessary to serve purpose?
Negligence
 Under the Restatement (Third), one is liable for negligence if one does not exercise
reasonable care under all the circumstances. The elements for negligence are duty, breach,
causation, and damages.
 Elements: Duty, breach, causation (cause-in-fact / actual, proximate) damages (harm);
under the Restatement (Third)
Duty
 Duty to use reasonable care when actor’s conduct creates risk of physical harm (§7(a) R3)
 Hand Formula from U.S. v. Carroll Towing Co. (where employee was supposed to watch
barge for dangers but was gone)  B < PL (liable if burden / cost of preventing the injury is
less than the probability of the injury times the magnitude of Loss if injury occurs
 Special duty
o Invitees (reasonable care under circumstances; §342
o Trespassers (refrain from wanton and willful conduct; artificial conditions highly
dangerous to constant tres §335; known tres §337)
o Therapist / Patient
 Tarasoff v. Regents of Uni of California: man told his therapist he was to kill woman
and therapist should have warned her; balancing test - confidentiality vs. danger
 General duty to rescue
o No duty unless special relationship
o Voluntary undertaking (§42 R3)
 Act with due care once undertaken rescue operations
 Cottam v. CVS Pharmacy: pharmacist had no duty to warn customers of side effects of
prescription drugs, but if the pharmacist has provided a detailed warning, must use
care to make sure that the warnings are complete.
o Rescuer’s right to recover for injuries sustained during attempt rises/falls with
determination rescuer acted rashly/recklessly (§32 R3)
Breach
 Res Ipsa Loquitur
o Elements: D has exclusive control and management of instrumentality, and occurrence
would ordinarily not happen if reasonable care used (§328)
o Boyer v. Iowa High School Athletic Association (bleacher collapse; could not identify
exact cause, but school still liable)
o Products cases
Causation
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Must prove both actual and proximate cause to prove liability
Actual cause (cause-in-fact)
o But-for: But for the defendant’s conduct, the harm would not have occurred
o Multiple defendants: Substantial factor (in bringing about the harm) test
 Concurrent/successive causation (Twin Fires case  Kingston v. Chicago & Northwest
Railway)
 Alternative causation: Summers v. Tice
o General causation: Is the activity that the defendant allegedly engaged in inherently
capable of causing the sort of harm suffered by the plaintiff?
 Bendectin case (Daubert v. Merrell Dow Pharm., Inc.): plaintiffs have to establish with
credible scientific evidence that Bendectin causes limb reductions in children whose
mothers took the drug during pregnancy
o Specific causation: Did this particular defendant cause this particular plaintiff the harm
alleged?
 Bendectin: did exposure to a toxic substance caused this plaintiff’s injury?
 Proximate cause (legal)
o §431: Legal cause of harm if conduct substantial factor in bringing about harm and no
rule of law relieves actor from liability
o Did D’s actions occur in close proximity in time and space to injury?
o Analysis also must determine whether it is the wrongfulness of the defendant’s conduct
that causes the injury
o Is this the type of injury that naturally should follow defendant’s actions? (foreseeability)
 What reasonably prudent person would have foreseen
 Palsgraf v. LIRR: man rushing toward railroad train with fireworks and someone
pushed him, fireworks went off and hit scale, which hit Palsgraf: unforeseeable victim
Other negligence
 Negligence per se: D not liable if p’s action violates statute (Martin v. Herzog where one
person was driving buggy without headlights and was killed by speeding car)
 Custom:
o Trimarco v. Klein (where man was injured when his glass shower door broke; the custom
by this time was to replace glass with shatterproof glass; failure to follow custom was
negligent)
o The T.J. Hooper: industry custom shouldn’t be decisive test for negligence (tugboat with
no radio because radio was not custom was lost but it was cheap and beneficial to get
radio so they were negligent)
 General duty to rescue
 Intervening causes: §14 R3 Apportionment of liability: If liable based on failure to protect
other from specific risk of intentional tort
o Culpable act need not be next or immediate cause of injury: Marshall v. Nugent where
truck hit car and the trucker told one of the men in the car to direct traffic, and he was
hit and injured by a car (still proximate cause)
o Criminal intervening cause: Herrera v. Quality Pontiac (car place left keys in ignition and
car was stolen and then crashed and injured people; One can be held liable in negligence
for the criminal actions of a third party that result in injury.
 Medical malpractice
o Loss of a chance: Ps may recover when D’s negligence reduced P’s chance of receiving
better outcome:
o Cahoon v. Cummings: Doctor can be held liable when a patient lost the chance to survive,
even if the doctor’s actions were not a substantial factor in causing death (even if
likelihood of death was above 50% without D’s negligence)
 Negligent Infliction of Emotional Distress
o Zone of danger rule: need fear of personal injury to person sustaining shock, not fear of
injury to other people
 Waube v. Warrington: mom witnessed child get hit by car through window and she
was so upset she died; husband could not recover on behalf of wife
o Bystanders can recover if (§48 R3) close family member and witnesses event
contemporaneously
 Dillon v. Legg: woman was crossing street with two children and one was hit and
killed; flexible factors: whether a plaintiff was located near the scene of an accident as
opposed to some distance from it, whether the shock alleged by the plaintiff resulted
from his sensory and contemporaneous observance of the accident, and whether the
plaintiff and the victim were closely related, as contrasted with an absence of any
relationship or the presence of only a distant relationship.
 Thing v. LaChusa: son hit by car, mom did not witness it but ran out to the accident
and saw him; could not recover because she was not an eyewitness to the accident
o Direct victims may recover for negligent inflection of emotional distress without physical
injury if there is a preexisting relationship
 Burgess v. Superior Court: Mother can recover if doctor negligently injures baby during
birth because she is a direct victim
 Learned Hand Formula (B < P X L)
o Burden of precaution; cost-benefit analysis
o Assess whether defendant’s conduct fell below standard of care
Defenses
 Contributory negligence: P failed to exercise reasonable care to protect self/property
o Butterfield v. Forrester: D was fixing house and place obstruction in road, P riding horse
too quickly and hit it, could not recover
 Last Clear chance doctrine: person in position to avoid harm, if exercising care, could have
avoided harm
o Davies v. Mann: P had tied up his donkey so it couldn’t run; D was speeding and hit and
killed the donkey; even though P was contributorily negligent, D had the last chance to
avoid harm and didn’t  still liable
 Assumption of the risk
o Express: §496B If expressly assume risk, can’t recover unless agreement contrary to
public policy
o Implied: §496C P cannot recover if they fully understood risk but voluntarily chose to
take it anyway
o §496E P does not assume risk if, as result of D’s tortious conduct, P has no reasonable
alternative to avoid harm (or emergency situation)
o Meistrich/R3 approach: express is no duty; implied is contributory negligence
 Sports: participants breach only if intentionally injuring another or behavior so reckless it is
outside normal range (Knight v. Jewett; touch football game where d smashed into p, p
could not recover)
Comparative Negligence
 Pure: P’s recovery is reduced but never eliminated solely because of P’s negligence
 §8 R3: factors for assigning share of responsibility
o Nature of risk-creating conduct, including awareness/indifference to risks and intent
o Strength of causal connection between risk-creating conduct and harm
o If P assumes risk, no comparative neg
Strict Liability
 Strict liability: liability without fault; D can be found responsible even if he acted with all due
care
 Animals
o Trespassing animals:
 §504 Livestock intrusion -> liable for harm done even if exercised the utmost care
 §21 Expands §504 to all other owned or possessed animals other than dogs and cats
o Wild animals
 Strict liability; exception: public zookeepers (regular negligence)
o Abnormally dangerous domestic animals §23 R3
 Possessor who knows or should know animal has dangerous tendencies
 Abnormally dangerous activities
o §519 R2 Strictly liable even if exercised utmost care
o §520 factors:
1) activity incapable of being conducted without high risk (cannot be made safe)
2) if harm does occur it’s likely to be severe (promises grave disaster)
3) Activity that is uncommon or atypical in community where it takes place
o Proximate cause is still a limit: principle that the harm must be within the risk continues
to limit liability
 Strict liability only applies to those things that caused us to label the activity
abnormally dangerous
 Bob is driving plutonium when he runs a stop sign (liable for negligence but not strictly
liable)
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o Does not apply to animals if person came into proximity for purpose of securing benefit,
abnormally sensitive P’s, and contributory negligence (only if P knowingly and
unreasonably took risk)
Fletcher v. Rylands and Rylands v. Fletcher
o Person who brings on land, collects, and keeps there anything likely to do mischief if it
escapes, must keep it in or is liable for all damage
o Natural vs. unnatural:
 Natural use of land (use for any purpose for which it might in ordinary course of the
enjoyment of land be used), P cannot complain
 When D undertakes a non-natural use (introducing something that was not in it in its
natural condition), Ds liable for evils they cause to P
Turner v. Big Lake Oil Co.: storing water in Texas (land with a lot of water storage) is not
outside of ordinary use and not strict liability
Siegler v. Kulman: hauling gasoline in big quantities is abnormally dangerous (no due care)
Not abnormally dangerous: working with asbestos (PSI energy, Inc. v. Roberts); Blasting
noises that kill minks (Foster v. Preston Mill Co.)
Products Liability
 Elements (originally from second restatement)
1) Def must be merchant seller of the product
o No requirement that p had dealt directly with def that is subject of strict liability claim
o If there were such a requirement, it would be privity limitation (which has pretty much
vanished from legal scene)
2) Prove that product is defective
o First way: manufacturing defect
 §2(a) R3: product departs from intended design in dangerous way
 MacPherson v. Buick Motor Co. (man bought car with defective wheel that caused him
to crash and get hurt; manufacturer owes duty of care to person who might
reasonably be expected to use product)
o Second way: design defect
 Defect that occurs in entire product line
 (More common) Risk-utility balancing: D fails to prove benefits of challenged design
outweigh risk of its danger
 (Less Common) Consumer Expectations Test: P must show that product failed to
perform as safely as ordinary consumer would expect when product used in
foreseeable manner
 §2(b) R3: Must be reasonable alternative design (RAD): cost effective way to make
that product safer, but failed to do it
 When safer design can be implemented: must do it over a warning
 When alternative design can’t be implemented: adequate instructions and warning
3) Must be in same condition as when it left hands of seller (defect existed when it left seller)
4) Plaintiff must show they were making a foreseeable use of the product
o Foreseeable manner: not limited to intended use of product
o Example: Standing on a chair to change a lightbulb instead of sitting
 Inadequate instructions or warnings
o §2(c) R3: defective because inadequate instructions make product unsafe
o Sheckells v. AGV Corp: Not obvious helmets useless at 30-45 mph
o Moore v. Ford Motor Co.: car not safe for large people but did not have adequate
warning
 Prescription Drugs and Medical devices
o Drug companies normally owe patients duties to use reasonable care in testing their
products and in warning prescribing and treating physicians regarding harmful side
effects
 §402A: Special liability of seller of product for physical harm to user or consumer
o Seller liable for physical harm caused by defective and unreasonably dangerous product
if a) the seller is engaged in selling such a product and b) it is expected to and does reach
the user without substantial change in condition
o Applies even if seller exercised all possible care and the user did not buy product from
seller
o R3: distributor also liable
Damages
 Compensatory Damages: Restore P to preinjury condition
 Personal Injuries
o Ps must take reasonable steps to mitigate injuries
o Avoidable Consequences Rule: P generally cannot recover for consequences of the D’s
wrong that the P could have avoided by taking reasonable harm-reducing measures
 Lost Earnings and Impairment of Earning Capacity
o 1) P’s basic earning capacity
o 2) Percentage by which the P’s earning capacity has been diminished by the tortious
action (typically use rough fractions, i.e. 25% or 50%, supported by expert medical
testimony)
o 3) Nature and expected duration of the disability
o 4) If permanent, the life expectancy (or work-life expectancy) of the P
o Grayson v. Irvmar Realty Corp. (opera singer who fell and got hurt) considerations:
gifts/talents, training received, training likely to receive, opportunities/recognition
already have, likely future opportunities, fact that few succeed, other risks, practical
chance at future earning capacity
 Pain, Suffering, and Other Intangible Elements
o Per diem structure: P’s attorney suggests to the jury a dollar value for the P’s pain for
whatever time segment the attorney chooses, i.e. $100 hours/day
o McDougald v. Garber (woman deprived of oxygen during birth and then had brain
damage) Consider pain and suffering and loss of enjoyment of life together
 Monetary Damages
o Nominal Damages: Small in amount, often $1 - available only in intentional tort cases
o Compensatory Damages: Reflect the harm actually suffered, i.e. loss of earning
capacity, out-of-pocket expenses like hospital bills
o Collateral Source Rule: Amounts received from other sources such as medical
insurance are not deducted from P’s tort recovery
o Punitive Damages: Designed to punish D for wrongdoing; may be substantial in amount
 Ordinarily available if D found to have acted w/ malice or reckless indifference