Negligence – D conduct imposes unreasonable risk upon another resulting in injury
 Duty
o Where D owes less than regular duty
 No duty to take affirmative action to help P (failure to act)
 No need to render assistance to endangered P
 Exceptions
o Special relationships D-P
 Common carrier, innkeeper/landlord
 Business holding premises open to public
 Employer-employee
 School-students
o P inj is due to D conduct, even if not neg (if involved)
o Part of common pursuit
o Assumption of duty: once D voluntarily begins to render assistance,
he must proceed with reasonable care
 Especially liable if D help has effect of dissuading others
from helping
 Mere promise to help P now makes D liable to fulfill with
reasonable care (unless P is not worse off)
 No duty to avoid causing unintended mental suffering to P (unless a consequence
of physical inj)
 No duty to avoid causing pure economic loss to P
 Breach (failure to conform to reasonable standard)
o D conduct imposed unreasonable risk of harm
 Balancing: if act reasonably involves risk of harm, negligence if risk is of such
magnitude (PL) as to outweigh utility of act (C)
 Great harm relatively unlikely to occur -> neg
o Objectively, would a reasonable person do what D did under the circs?
 Subjective intent to behave carefully X
 Circs: physical and mental characteristics
 Physically disabled -> reasonable person with that physical disability
 Ordinary reasonable person does not share mental characteristics
o Of a more stupid, careless D
o But D must use any higher degree of knowledge/skill/experience
 Intoxication is not a defense (reasonable sober person)
 Children are held to level of conduct of reasonable person of that age and
experience
o But where engaged in potentially dangerous adult activity, standard
of care of reasonable adult
 Emergency – D must behave as reasonable person confronted with same
emergency would or might have
o Custom is mere evidence, not conclusive
 D may say everyone does this -> industry practice may be unreasonably dangerous
 P may say everyone takes x precaution -> suggestive evidence only
o Defenses
 Warning of danger
 Failure to warn of known danger can constitute neg
 Does not immunize: if unreasonably dangerous despite warning, neg


Causation
o But-for: D’s failure to act with reasonable care was cause w/o which injury would not have
occurred
o Proximate: sufficiently close causal connection between act of negligence and P harm
Damage
Causation
 But-for: D’s failure to act with reasonable care was cause w/o which injury would not have
occurred
o Where there are concurrent causes, either sufficient to cause substantially the same harm
w/o the other, each passes (EG combined fires)
o Multiple Ds, only one could cause injury -> burden on Ds to separate, otherwise both neg
o Increased risk – D conduct ups risk P will suffer future damage, but it has not yet occurred
-> no recovery unless shown more likely than not
 Proximate: Conduct will be deemed to be a proximate cause of harm if the harm was a foreseeable
result of the conduct, and if the harm was not brought about by an extraordinary or unforeseeable
sequence of events
o sufficiently close causal connection between act of negligence and P harm; D will not be
liable for very unforeseeable consequences
o D generally only liable for consequences of neg reasonably foreseeable at time of act
 Is it within the class of risks making D conduct tortious/guarded against?
 Of the same general sort of harm that D neg threatens (unusual manner
irrelevant)
 “not liable for harm different from the harms whose risk made the conduct
tortious”
 Exception: egg-shell skull rule: if P suffers minor impact but dies due to thin skull,
D liable; D takes the P as he finds him
o Unforeseeable plaintiffs cannot recover (Palsgraf no foreseeable harm to far bystander)
 Exception: P part of class to which there is general foreseability
o Intervening Causes – forces taking effect after D neg, contributing to P inj
 If D should have foreseen possibility of intervening cause, or kind of harm suffered
by P foreseeable -> prox cause
 One of risks guarded against -> liable (D keys left in ignition -> X steals it
(intervening cause) -> X hits P: D liable b/c theft is within class of risks
making D conduct neg)
o Third party’s intervention is normal response -> not superseding
 Rescue: D neg creates danger causing 3P to attempt rescue, chain is not broken
unless performed in grossly careless manner -> D may be liable to person being
rescued or the rescuer
 EG escape, aggravation of injury by medical treatment (unless gross/unusual)
*Defenses of Negligence*
Assumption of Risk – P may be barred from recovery when an injury results from a danger of which P
was aware and that P voluntarily encountered
 P voluntarily consented to take chance that harm would occur -> barred
 Express assumption – P explicitly agrees to not hold D liable for certain harm (EG waiver)
o Exceptions

When D intentionally causes the harm or brings it about by acting recklessly or
grossly negligent
 Unconscionable: bargaining power of protected party >>> (EG good/service is
essential – public carriers, utilities)
 Overriding public interest
 Implied assumption – P held to have assumed certain risks by conduct
o D must show
 P knew of risk in question (subjective)
 P voluntarily consented to bear the risk
 No AR if P had no reasonable choice (duress)
 But D must be at fault for lack of reasonable choice/cause of dilemma
 EG sport/rec activity – assumption of ordinary carelessness
 Primary – D never under any duty to P at all (P hit by foul ball)
 Secondary – D would ordinarily have duty to P; P AR removes duty
o Generally merged with comparative neg in such regimes
 AR might also constitute P cneg (use AR as defense to reckless conduct)
Comparative Negligence – dividing P-D liability relative to fault
 Pure vs. 50%: most states bar P if neg = or > D
 Trend: acceptance of seat belt defense in compar neg regimes – D arg P inj could have been
reduced/avoided
Contributory Negligence – neg P is totally barred from recovery (absolute defense) (same neg analysis)
 Causation EG if D speeding so fast that he would have hit even if P careful (P had not taken care
to move out of the way), no but-for cause -> no prox cause
 No cneg for D intentional torts
 No cneg if D conduct willful and wanton or reckless (D disregarded a conscious risk)
 Last clear chance – if P has negligently put himself in a position of risk, and D then sees (or
should see) P peril in time to avoid the problem, D had LCC to avoid peril; will preclude cneg
Immunities
 Family: spouse, parent-child
 Govtal
o Suits against fed govt allowed under FTCA
 Liability cannot be based upon govt’s exercise of discretionary or policy-making
function
Intentional Torts
Assault is the intentional causing of an apprehension of harmful or offensive contact
 Intent to: commit a battery, frighten (put P in apprehension but not really cause contact)
o May be transferred to P (who thinks he will be hit) through attempt to frighten X
 Contact must be imminent in P mind
 Words alone cannot constitute an assault; need some overt act, even if small
 Apprehension?
o P must be aware of danger (presence)
o P must apprehend contact with herself, not a loved one
o P apprehension not necessarily of a battery (natural/unintentional event applies) (fake
spider placed by D to scare P)
 Consider privilege
Battery is the intentional infliction of a harmful or offensive bodily contact

If battery -> consider whether there was first an assault (usually; so long as P saw what was about
to happen)
 Intent to: cause contact, frighten; also satisfied if D knows h/o contact substantially certain to occur
(regardless of desire; subjective test of what D really thought)
o May be transferred to P though contact/apprehension intended for X
o May be of different sort than intended (D tries to ram P car, P swerves into hydrant)
 Offensive contact offends P dignity (even if no inj)
 Indirect contact (through an object, 3P)
 Exceeding a privilege
o Excessive force
o Malpractice – failure to obtain informed consent
o Contact sports (implied consent only to contact within usual rules)
Conversion occurs when the defendant so substantially interferes with the plaintiff’s possession or
ownership of goods that it is fair to require the defendant to pay the property’s full value
 Same as T/C except
o Extent and duration of D dominion
o Bad faith
o Greater harm
o P inconvenience/expense
Trespass to Chattels is the intentional interference with another’s possessory interest in a chattel,
resulting in damage to that interest
 Intent
o Belief about right to take or affect property, who holds title is irrelevant
o Mistake is never a defense, even if reasonable
o Intent vs. accident – if D does not intend contact, but it happens by accident, no T/C (still
discuss it)
 As long as there is some damage (beyond nominal) – EG found if temporary interference w/
possession
 Make sure to distinguish from conversion – latter occurs only when inj to P interests so severe
that it is appropriate to make D pay for the whole value of the item vs. dmgs for just interference
Trespass to Land is the intentional unauthorized entry onto the land of another
 Intent: to enter land (not to harm D or land in any way)
o Met if D knows with substantial certainty that he/object is entering (no desire needed)
o Mistake of whether entry is authorized is irrelevant so long as D knows he is entering
*Defenses*
1. P consented
a. Examples: P saw warning signs near injuring device, implied rules of contact
b. Objective test: reasonable person in D position thought P meant
i. Prior relationship (and extent) of consent is relevant
c. D mistake re whether P consented depends on reasonableness
2. Self-defense, defense of others/property
a. Who committed ass/bat first? Other can now use self-defense; first cannot respond to s-d
i. But initial aggressor may use s-d in response to inappropriate escalation of level of
force (A swings at B [non-deadly]; B pulls out gat [deadly] -> A can use deadly)
ii. Mere words won’t justify s-d
b. S-d can be used even if based on a mistake, if reasonable belief
c. Examine the level of force: no more than reasonably necessary, much match, D often must
retreat if safely possible; deadly = likely to cause death or serious bodily injury
d. No deadly force to protect property
e. Mechanical devices to injure/frighten intruders
i. Analyzed as if D were present; privileged level of force against that particular
intruder
ii. D typically must post warning unless danger is obvious
iii. If unexpectedly severe inj to P, D needs reasonable belief that inj would not be so
3. Necessity – look for whenever D intentionally does something to protect himself or others in an
emergency, affecting the (land) rights of innocent P
a. Public necessity involves serious danger to many people; private involves D/few others
b. Examples: D tries to stop spread of fire by messing with P house, D pilot intentionally
lands on P property in an emergency
c. D must pay for private necessity
d. If landowner resists and injures the necessary intruder, intruder can recover
i. But landowner can recover for actual damage to property occurring before
resistance, if a case of private necessity
Joint Tortfeasors
Liability

Joint and Several (older rule) – more than one D a cause of P indivisible harm -> each liable for
entirety
o P can recover entire dmgs from one; but not the whole twice
o EG indivisible: death/any single personal injury, property lost in fire
 Hybrid – all jointly and severally liable, but if one D judgment-proof, court reallocates dmgs to all
parties relative to comparative fault (remaining parties share insolvent burden)
o Hybrid w/ threshold % - D >50% responsible is j-s
 Pure Several – D only liable for share
 Divisible Harm – if rational basis for apportionment, each D responsibly only for directlyattributable harm (burden on Ds to allocate)
o Action in concert? No apportionment
o Successive incidents? Divisible (D1 may have most liability [that of D2 as well if prox])
Contribution – if two j-s Ds, D1 paying more than his pro rata share may usually obtain partial
reimbursement from D2
 Equal share unless comparative neg regime
 Limits
o No contribution for intentional torts
o Contributor must also be liable to P
Indemnity – court completely shifts responsibility from one D to another
 D1 vicariously liable for D2 -> D2 will be required to indemnify D1 (employers, retailers)
Vicarious Liability

Respondeat superior – employer will be liable for an employee committing any tort during the
scope of his employment
o Employee is subject to close control of employer (not applicable to independent
contractors) – D2 can control details of D1 performance
o Scope: employee acting with an intent to further employer’s businesss purpose
 Usually does not count travelling to work

Frolic and detour – side-trips for personal purposes may be found if reasonably
foreseeable (consider whether brief or of the sort employees frequently do within
work days; might fit in scope even if not for strict benefit of employer)
 Even if expressly forbidden by the employer
o Both j-s; then indemnity owed to employer
Landowner Duties
 To those outside premises: no duty to remove or guard against natural hazards; general duty to
prevent unreasonable risk of harm from artificial hazards
 Trespassers – no duty to make land safe, warn of dangers on it, avoid carrying on dangerous
activities on it, or protect trespasser
o Exceptions
 Constant trespass: owner has reason to know land portion is frequently used by
trespassers -> reasonable care to make premises safe/warn
 Discovered trespass: once owner has knowledge, duty to exercise reasonable care
for trespasser’s safety
 Children (provided owner knows they are likely to trespass, unreasonable risk,
failure to use reasonable care/eliminate danger)
 Licensees (person who has consent to be on property, non-business) – no duty to inspect for
unknown dangers; must warn of known dangers
o Special EG firefighters cannot recover as mere licensees for inj fighting a neg fire
 Invitees (invited to conduct business or as members of the public for purposes which the land is
held open to public) – duty of reasonable care
o Duty to inspect for hidden dangers, affirmative action to remedy dangers, warning (may
suffice depending on whether it removes danger), control 3Ps
o Does visitor’s use go beyond scope of invitation? (P permitted to use private bathroom not
held open to public -> becomes licensee)
Malpractice
 Professionals must act with level of skill and learning commonly possessed by one in good
standing; use requisite minimum skill and competence
o Not normally held to guarantee that a successful result will occur
o P cannot just prove D performed with less skill than average
 Bound by standards of community in which they practice (modern courts may now use national
standard)
 Informed consent – part of professional duty is to adequately disclose risks of proposed treatment
to patient; those sufficiently material that a reasonable patient would take them into account in
deciding whether to undergo treatment
Negligence per se (Violation of Statute) – D is negligent if, without excuse, D violates a statute that is
designed to protect against the type of accident D’s conduct causes, and the accident victim is within the
class of persons the statute is designed to protect
 an unexcused violation of a safety statute conclusively establishes D negligence
 Requires that statute was intended to guard against kind of injury in question
o EG D65 in 55mph zone -> D injures P: statute designed to protect against accidents- > D
neg
 Excuses
o D was reasonably unaware of factual circumstances making statute applicable

o D made reasonably and diligent attempt to comply
o Confusion over statute requirements (as publically presented)
o Compliance would have involved greater risk of harm
Applicable to P where cneg
Products Liability – seller of item which, because of defect, causes injury
 Theories: negligence; breach of warranty; strict liability: regardless of D intent, D neg
 Negligence
o No privity requirement (D directly with P) where neg manufactured product causes injury;
manu liability for any inj prox caused
 Bystanders can recover if foreseeable P
o Potential Ds
 Manu – careless design/manu/inspection/packaging/shipment
 Retailers – usually not liable; sale alone does not prove neg; no duty to inspect
 Bailors, real estate sellers/lessors, service suppliers
 Warranty
 SL – A seller of a product is liable without fault for inj caused by the product if the product is sold
in a defective condition
o If defect -> liable even though D used all possible care
o Anyone in the chain in the business of selling products (or in combo with service)
o Types of defects
 Manufacturing – A product contains a manufacturing defect when it deviates from
its intended design (is more dangerous) even though all possible care was exercised
in the preparation and marketing of the product
 Breaks/wears out before a reasonable consumer thinks it would
 Design – A product is defective in design when the foreseeable risks of harm posed
by the products could have been reduced or avoided by the adoption of a RAD by
the seller or other distributor . . . and the omission of the alternative design renders
the product not reasonably safe
 product line bears defective, unreasonably dangerous design
 Negligence analysis – foreseeable risks of harm posed could have been
reduced or avoided by adoption of RAD; omission of RAD renders
product unreasonably safe
 Cost-utility of D design vs. cost-utility of RAD
 Types: structural weakness, lack of safety feature
o P arg cheap safety feature -> D arg state of the art defense that
competitive products also lack feature/tech did not yet exist/too
expensive (not dispositive)
 D may be liable for some inj from unintended (foreseeable) misuses (EG
cars must be reasonably crashworthy b/c collisions reas fore)
 Warning – maker has neglected to warn of known danger in otherwise-safe product
 Extra obli wrt non-obvious dangers; does not cure manu/design defect
 Non-obvious risk of inj from using a properly designed and manu product
 Not giving instructions on correct use if reas consumer might foreseeably
misuse
 Generally needs to be given only to physician (learned intermediary) –
unless not in a position to pass on, then direct from manu needed (OTC)



Neg: when foreseeable risks of harm could have been reduced/avoided by
provision of reasonable instructions or warnings; omission renders product
unreasonably safe
Causation: D should attempt to show P wouldn’t have read or would have
ignored a warning even if one had been given
o P must show
 Item made/sold by D
 D in business of selling products of this type
 Item defective
 Later safety redesign is insufficient ev for defect
 Defect caused P inj
 Defect existed when left D hands (proven if no tampering) – no substantial change
 Product OK when leaves plant but bad handling leads to danger -> manu
not strictly liable
 Causation broken by owner’s refusal of D attempt to correct
o Food products – defective if contains a (dangerous) ingredient that a reasonable consumer
would not expect it to contain (consumer expectations) – natural is expected vs. foreign
o Exceptions
 Unavoidably unsafe products whose benefits > dangers (EG prescription drugs)
 But D should still make reasonable efforts to make product as free from
dangers/side effects as it can
 Unknowable dangers at time of manufacture
 Obvious dangers:
 Manu – still SL
 Design – may bar recovery (Q: benefits > dangers? Y then barred)
 Warning – no liability (warning would add nothing)
o Defenses
 Based on P conduct
 AR/comparative neg
 Conscious failure to use available safety device
 Custom/everyone else in industry designs it so (not binding)
Market share theory – where P cannot prove who caused injury, but all produced a defective
product, each D will pay % of P inj according to share of sales in total market at time of inj (EG
prescription drugs)
Res ipsa (Inference) – P points to fact of accident -> D was probably neg



Requirements
o No direct evidence of how D behaved in connection with the event
o P demonstrate that harm does not normally (most of the time) occur without neg
o Exclusive control: P demonstrate that neg was probably D (more likely than anyone else)
 Multiple Ds -> P may show at least one in control and recover, esp. if cooperating
relationship (Ybarra hospital staff)
o probably not due to P own conduct
o perhaps evidence is more available to D than P
Expert testimony permitted: special knowledge involved -> insight into whether accident would
probably happened w/o neg
Defenses
o Insufficient that D merely exercised due care (still would reach jury)
o Direct rebuttal to requirements