TORTS
Goals
 Compensate plaintiffs
o Allocating damages
 Deter
o Economic efficiency
VICARIOUS LIABILITY
Respondeat superior
 If an employee commits a tort during the scope of his employment his employer will
be liable (jointly with the employee)
o Applies to all torts
 Policy
o Prevent future injuries
o Assure compensation…spread losses (fairness)
o Incentive to discipline/supervise
o Successful suit may deter business for tortuous behavior and give them an
incentive for better future behavior
 Christensen v. Swenson
o D was driving back from lunch to work and collided with motorcycle causing
several injuries. P moved for SJ for VL under RS. Court deemed SJ for D
inappropriate because it wasn’t clear if P was within the scope of employment
o three criteria from Birkner for determining whether employee was within
scope of employment
1. conduct must be of the general kind the employee was hired to perform
2. conduct must be within hours and ordinary spatial boundaries of
employment
3. conduct must be serving the employer’s interest
o scope of employment is highly contextual and must be determined by a jury
o not VL…rides to and from home to work, frolic and detour
o you can also sue an employer for negligence in hiring…not VL
Apparent Agency
1. Represented by purported principle
2. Reliance on the representation by a third party
3. A change in position by the third party in reliance on the representation
o Policy
o Spread losses to deep pockets, forces company to monitor hiring
o Roesslar v. Novak
o P suing hospital for injury caused by independently contracted doctor argued
to be portrayed as apparent agent. Court deemed SJ for D because
consideration of L’s status as an AA is for the jury.
Independent Contractors
1



Generally you cannot sue an employer for the tort of an IC
Policy
o Doesn’t make sense to go after the company because they have less control
and understanding of the work of the independent contractor
o Consumer expectations are different
o Insurance/Business Management
o Fairness
 You want to be able to hire an independent contractor to have a job
done more adequately, without concerns of liability
 Both parties benefit
 Seems fair to spread risks to those actually doing the work
Exceptions
o Employer’s own liability
o Non-delegable duty
o Inherently dangerous activities
-vicarious liability
-respondeat superior…employee/employer
-apparent agency…independent contractor
NEGLIGENCE
DUTY
 Misfeasance (an affirmative act which harms or endangers P) v. nonfeasance (a
mere passive failure to act)
o Commission makes it easier to find duty, for an omission you have to
prove an affirmative duty
 Matter of law for the judge to decide
Affirmative obligations to act
 Special relationships
o Special relationship requires a situation open to the public OR when one has
custody of another who is deprived of normal opportunities of self-protection
(custodial relationship)
 Good Samaritan rule for physicians to stop and assist at accidents
o Harper v. Herman
 D, as a social host, does not assume a special relationship creating a
duty to protect when he allowed an inexperienced diver on his boat
 Examples of special relationships
R3
o Common carriers with its passengers; an innkeeper with its guests; a business
or other possessor of land that holds its premises open to the public with those
who are lawfully on the premises; an employer with its employees; a school
with its students; a landlord with its tenants; Doctor/patient;
Employer/employee
2
 D involved in injury or creation of risk (negligent or non-negligent)…D has a




duty of reasonable care to prevent or minimize harm R2 § 314
o Policy: you have a duty because you are putting someone in a position which
they would not have otherwise been in
D and victim as co-venturers
D has no general duty to rescue
o Policy: deter inept rescue; remoteness (no clear causal element);
impracticality (limits?); autonomy
However, once D voluntarily begins to rend assistance (even if she was under no
legal obligation to do so) she must proceed with REASONABLE CARE. D must
take all reasonable efforts to keep P safe and cannot discontinue her aid to D or
leave her in a worse position then when D began to render assistance.
R2 §
324
o Policy: may prevent good rescue; causes person being rescued to rely on you
o Farewell v. Keating
 Court held that D failed to exercise reasonable care after voluntarily
coming to the aid of Farwell and that his negligence was the proximate
cause of F’s death. D knew or should have knew of his peril, and had
an affirmative duty to come to Farwell’s aid.
 Also, special relationship because they were co-venturers
 Dissent
 no authority is cited for close relationships establishing legal
duties except policy saying it would be good for humanity
Duty to control others
o Such a duty may arise either because of a special relationship between D and
P, or a special relationship between D and the third person
 Third person must be known and must be known to benefit from
being informed in order for D to have a duty to him
 This type of duty cannot rest on foreseeability alone
o Tarasoff v. Regents of Univeristy of California
 Court held that because of special relationship between defendant
psychotherapist and patient, who told them of his intent to kill P, Ds
had a duty to warn P of patient’s intentions (which were later carried
out) if a reasonable person would have done so. Ds did not, however,
have a duty to P to confine the patient, because of a state statute
granting doctors immunity with respect to this kind of decision.
 Concurring and Dissenting
o dissents that a only therapists who predicted and failed to warn
that can be held liable
 Dissent
 Policy against: inherent value of confidentiality; difficult to
predict; burden of warning the third party (reasonableness);
treatment may be deterred by lower disclosure; unnecessary
warnings; overcommitting people
3
Policy bases for invoking no duty
 Ruinous liability
o Strauss v. Belle Realty Co.
 Failure of CE Elec. Led to NYC blackout. P fell in common area of
building where landlord paid for electricity. Court held that while
limiting recovery to customers in this instance can hardly be said to
confer immunity from negligence on Con Edison, permitting recovery
to those in P’s circumstances would, in our view, violate the court’s
responsibility to define an orbit of duty that places controllable
limits on liability
 Policy: limitations to direct, contractual, or seemingly so,
liability; avoiding ruinous liability
 Far reaching social implication and ill-equipped judiciary
o Reynolds v. Hicks
 Court held that social hosts have no duty to third parties injured by
intoxicated minors leaving their events because social hosts are not as
capable of handling the responsibilities of monitoring their guests’
alcohol consumption as are their commercial and quasi-commercial
counterparts.
 Policy: judiciary is ill-equipped to impose social host liability; social
hosts have no profit motive to control guests; changes the way we
socialize
o Dram shop acts
 most states have enacted dram shop acts that impose liability on
commercial enterprises for harm resulting from intoxication when
they serve a person to the point of intoxication or serve an intoxicated
person
The duty of landowners and occupiers
 Generally concerns the circumstances of the land
o Rules may differ from duties that apply to activities on the land
 Duty and breach get conflated entirely
o What is the status of the plaintiff on the land, and what is the reasonable care
owed that plaintiff?
 Legal trends
o Despite some cases, like Heins, many Js retain traditional categories
 Heins v. Webster County
 elimination of distinction between licensees and invitees by
requiring a standard of reasonable care for all lawful
visitors…still retain trespasser distinction
o change of law applied prospectively
o dissenters argue the removal of these distinctions
socializes private property, and that more trials will go
to jury because determination of reasonable level of
care will have to be considered
4



o however, homeowners insurances makes this elevation
of licensees less burdensome
o Even more have abolished some or all of the categories
 Most commonly eliminated distinction is between invitee and licensee
o Most Js define scope of duties based on status of entrant
Key points
o Liability based on condition of land/property is generally imposed on
possessor of the land
 Rather than the owner
 This is because possessor is best situated to control condition of land
 Exceptions exist if owner is in better position (i.e. LL)
o Limited duties generally apply only to injuries to someone who comes on the
property…if conditions of or action on your land cause injury to those outside
your property
 Ordinary principles generally apply
 OR sometimes SL principles apply
 Rationales for limiting duty to those who enter your land as compared
to those off your land:
 Individualism concerns
 Notion of sanctity and privacy of home
 Right to use your home as you choose
Traditional categories
o Trepasser
 Enters or remains on land w/o possessor’s consent or permission
o Licensee
 Has permission to enter premises, but is not invitee
 Until you say leave your property…licensee assumes
permission
o You may be liable for sales solicitor until you tell him
to leave
o Invitee
 On premises with possessor’s permission AND
 Land is open to the public OR
 Business reasons that concern possessor
o Some Js required material benefit to possessor
Duties Owed to Trespassers
o General rule
 No duty of reasonable care regarding conditions of or activities on
premises
 Often, duty to refrain from intentional, willful, and wanton
conduct
 Exceptions
 Discovered trespasser
o When possessor knows that T is on property, there is a
duty to refrain from intentional, willful, wanton injury
o Some courts:
5


Duty to use reasonable care, particularly where
risk is from activity on, as opposed to conditions
of, premises
 Rationale
 Misfeasance v. nonfeasance decision
 Frequent trespasser
o E.g., person who regularly cuts across your lawn
o Some Js
 Duty to warn of hidden dangers
 Duty of reasonable care to avoid harm through
activities
o Other Js
 Also duty of reasonable care for conditions or
premises
 Rationale
o Begins to look like tacit
permission, merges in licensee
o Child trespasser
 R2 § 339, liability if:
 Possessor knows or should know
children are likely to trespass
 Possessor knows or should know that
condition poses unreasonable risk of
death or serious bodily injury
 Children do not discover the condition or
realize the risk of condition
 Utility of maintaining condition and
burden of eliminating it are slight
compared with risk AND
 Possessor fails to exercise reasonable
care to protect children
 Rationale
o Trespassing children are FOS,
whether or not enticed;
traditional rationale… “attractive
nuisance”
Duties owed to licensees
o Sometimes its hard to distinguish Ls from Ts
 E.g. if possessor does not stop people from taking a shortcut, may lead
to jury question regarding status
o Permission may be implied from
 Possessor’s conduct
 Or from condition of property
o Licensee is expected to accept premises as possessor maintains them
 May be entitled to be warned of know conditions
 No duty
6


 To inspect premises
 To discover dangerous condition
 Or to make premises safe for the visit
 Carter v. Kinney
 P slipped on ice on D’s driveway. Court held that Ds had no
duty to protect P, a social guest, from unknown conditions
because he was a licensee. Social guests are classified as
licensees because there is a common understanding that the
guest is to take premises at the possessor uses them and
does not expect preparations regarding his safety, etc.
o Some Js
 May be duty
 To warn of known hidden dangers
 Or duty to make safe known dangers
o Some courts impose duty of care regarding activities on, as opposed to
conditions of, land
 Operating machinery
 Backing up a car, etc.
Duties owed to invitees
o Possessors owe an affirmative duty of care:
o includes:
 to discover dangers
 to protect against dangers of which possessor is or should be
aware
Landlord liable to tenant if:
o Hidden danger that LL but tenant is not aware of
o Premises leased for public use
o Under LL’s control…i.e., common area
o Negligent repair by landlord
o Liability likely if landlord promised to make repairs and did not or did so
negligently
o Policy
 Tenant financially unavailable
 Lease makes improvements not so beneficial
 Landlord assumes obligation
o there is a movement to extend landlord liability to reasonable care
 policy: LL can pass on costs to tenants through higher rents
o LLs’ sometimes liability sometimes extends outside their premises
o LL may also be liable for protection of tenants from criminal activity
 Policy: provide incentive to maintain premises (because LL will not be
criminally liable)
Immunity…NO DUTY
 Charitable (funds not intended for tort claims), intrafamily, governmental
 Spousal immunity
o Abolished
7

Parental immunity
o Abolished
Intrafamily duties
o Broadbent v. Broadbent
o Court held that a parent is not immune from their tort based solely on
their relationship with their child.
o Installed a “reasonable parent test,” in which a parent’s conduct is judged by
whether that parent’s conduct comported with that of a reasonable and prudent
parent in a similar situation
o Policy for:
 Disturbs domestic tranquility more if not liable
 Disruption has already occurred
 Fraud and collusion possible in all suits
 Recovery from insurance could actually ease financial burden
 It is really rare that child will predecease parents
 Thus it is rare for parents to benefit off of the harm they caused
 However, undercutting of parental authority is one major concern
o Approaches
o Complete abrogation…Broadbent
o Protection under parental activities
 Duty to the world …no PI
 Duty to the child…PI
o Total PI
o Mother generally owes no duty to unborn child
Governmental Entities
 Bottom line: you cant sue the government UNLESS they say you can
 Riss v. City of New York
o D has no duty to provide police protection to any particular member of
the public. If such duty were recognized, and enforced by the courts, this
would “inevitably determine how the limited police resources of the
community should be allocated and without predictable limits”
 Types of governmental activity
o Services (private sector)
 NO GI
o Service (public sector)
 NO GI
o Protection of the public
 GI
 Concerns
o Allocation of resources
 Predictability
o Unlimited liability
8

More pressures on police to respond if people
know that they can make claims without much
of a predication for the likeliness of injury
 This can be constrained…just because
you can be sued doesn’t mean the suit
will be successful
o Institutional roles
 Judiciary does not have the oversight of the
legislature to make claims as how gov’t
resources should be properly delineated
 Separation of powers issue commonly
comes up here
 Courts do not have the expertise that the police
have in the allocation of resources
 Limitations on GI
o
o
o
o
o
o
Public undertaking activity to help as requested by police
Creation of risk
Promise….Direct contact, promise, reliance on that promise
If police are there and witness the harm, then they have a duty to act
911 call
special relationships exist only when the police create them
 this goes back to the fact that the police essentially give you
permission to sue them
 there must be an affirmative act on the part of the
government…commission or special relationship
 Federal Tort Claims Act (1946)
o You can sue the federal government or its employees in the scope of
employment for tort claims that would be okay against civilians
o Exceptions:
 You can’t get punitive damages
 You can’t sue if the employee is following statute/regulations
 You can’t sue for many intentional torts
 You can’t sue for discretionary functions of government
 This is where many issues occur…what is a discretionary
function is a debatable point
o Discretionary Function Exception
 Was there a choice?
 Statute or regulation imposing choice
 If choice, discretionary function?
 Political, social, economic, etc.
 Policy laden?
 You can’t sue when the decision made is fraught with
policy considerations
o You can’t sue when it is a discretionary function
 You can sue when the decision made is not fraught with
policy nor discretion
9
o 4 rationales for providing governmental immunity
 court is not well-versed in governmental decision-making
 separation of powers
 limited funds
 we do not want to chill the decision making of the executive branch
Duties to avoid emotional harm
o negligently inflicted emotional distress
o tort law tends to privilege physical harm
o you can recover for parasitic emotional distress
o situations in which there is preliminary physical harm
o tough areas
o no physical harm
o physical harm comes after
o bystanders
Direct Victims
 Approaches
o Physical impact rule
o Zone of danger
 R2 § 436
 P can usually recover when he fears for his own safety
 Falzone v. Busch
 D’s husband was struck by a car in front of her. Court held
that where negligence causes fright from a reasonable fear
of immediate personal injury or sickness, the injured
person may recover if such bodily injury or sickness would
be regarded as proper elements of damage had they
occurred as a consequence of direct physical injury rather
than fright. Of course, where fright does not cause substantial
bodily injury or sickness, it is to be regarded as too lacking in
seriousness and too speculative to warrant the imposition of
liability. This was a change in law: discarding the physical
impact standard.
o Policy
 Medical evidence suggests relationship between
emotional disturbance and physical injury
 Fraud may come up in all tort cases
 Difficultly of proving causal connection should
not bar P’s recovery
 Expansion of “judicial machinery” in reaction to
the impending flood of litigation
 However, overdeterring remains a pertinent
issue
o Concerns victims P is on notice about
o Extension of impact rule
10
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
Near miss
Still linked to physical harm…stemming from
emotional distress
o Premised on the traditional neg. concept that by
unreasonably endangering P’s physical safety D has
breached a duty owed to him for which he should
recover all damages sustained including those
occasioned by witnessing the suffering of an immediate
family member who is also injured by D’s conduct
o Gammon
 More traditional notion of tort law for emotional distress
 Treats ED like physical harm
 Doesn’t privilege physical harm like the zone of danger does
 Negligent mishandling of corpses; negligent transmission of telegraphs
 Physical impact rule eroding
 However, in these cases recovery, most courts require that some
physical symptoms manifest for recovery to be allowed
 Limits fraudulent claims
 Exceptions
 Telegraph company negligently sending death notice
 Negligent mishandling of corpses
o Gammon v. Osteopathic Hospital of Maine Inc.
 Court held that previous requisites connecting
physical injury as a cause or result for an
emotional distress claim to be successful are
arbitrary and should not bar recovery
 tort principle of foreseeability provides adequate
protection against unduly burdensome liability
claims for emotional distress
 D is bound to foresee physic harm only when
such harm reasonably could be expected to
befall the ordinarily sensitive person (especially
vulnerable victim)
 High probability of SEVERE emotional
distress for family of recently deceased
when coming across a severed leg
o The “at-risk plaintiff”
 May P recover for the purely emotional harm of being distressed by
this increased likelihood of illness, assuming that there are no
symptoms of the illness itself
 Some courts require D to prove that actual exposure occurred
more probably than not
 Some court require that possibly of contracting illness is
probable than not
Indirect Victims
11
 Two approaches
o No duty
 Outside zone of danger
o Limited duty to 3rd party plaintiffs
 Need to limit liability
 Issue often occurs in situations where parent sees child killed before him
o Portee v. Jaffee
 court held that observing the death or serious injury of another while it
occurs is an essential element of a cause of action for the negligent
infliction of emotional distress
 D’s duty of reasonable care to avoid physical harm to others
extends to the avoidance of this type of mental and emotional
harm
 Three factors determining liability:
1. whether P was located near the scene of the accident as
contrasted with one who was a distance away from it
o court reasons that the risk of emotional injury exists
by virtue of P’s perception of the accident, not his
proximity to it
2. whether the shock resulted from a direct emotional impact upon
P from the sensory and contemporaneous observance of the
accident, as contrasted with learning the accident from others after
its occurrence
3. whether P and the victim were closely related, as contrasted
with an absence of any relationship or the presence of only a
distant relationship
 Additional factor…severity of the injury observed
o Observation of death or serious injury is necessary to
permit recovery
 Extraordinary reaction to less serious
injury does not provide a cause of
action
 Scherr v. Hilton Hotels Corp.
o no recovery for wife watching television showing fire in hotel her
husband was staying at
 she perceived endangerment, rather than injury
 courts are divided on whether or not people should be able to recover from the
mistaken perception of a loved one’s serious injury or death
o i.e. injury not as serious as it seemed
Lost of consortium
 Historically only the husband could recover for loss lost of consortium
 Spousal…most jurisdictions allow recovery
 Parents usually can recover from lost of children
o Historically rooted in children being economic assets
12


o Modern tort law focuses on emotional distress
Courts reluctant to allow recovery for co-habitants on grounds of loss of
consortium
Courts are divided on whether or not to allow kids to recover for the death of a
parent
o Emotional distress stemming from loss of parent
Economic Harm
 Duty of lawyers to clients
o Meeting filing deadlines
 Good claims exists for legal malpractice
o Making strategic choices
 Court not likely to allow such claims
 Expert testimony would be necessary
o Recommending settlements
o Criminal cases
 P who had been convicted of a crime could not sue his defense
attorney for malpractice without proving that he was innocent of the
underlying crime
o Emotional distress
 Usually not likely, recovery for legal malpractice is often grounded
in economic harm
 However, other courts have suggested that when the attorney is
retained for non-economic purposes, such as criminal defense,
adoption proceedings, or marital dissolution, damages for emotional
distress may be foreseeable and may be recovered as one item of
damages
________________________________________________________________________
BREACH
-un/foreseeability in light of the circumstances (on this occasion, not considering past
experience)
-cost/benefit analysis of the allegedly negligent act…reasonableness
-you pay if your conduct was unreasonable, but not if it was reasonable, even though
others suffer harm from your reasonable conduct
History of Fault Liability
 Complexity of modern society…more accidents…need for negligence
 Negligence as a capitalist protection device
o SL would have been too costly for industrial growth
 Brown v. Kendall
o D used a stick and unintentionally hit P while breaking up dogs. Court held
that standard of care was “ordinary care,” and that burden of proof is now on
P and ordered a new trial.
 Overturned standards formerly requiring D to prove ordinary care
13

Court really held that DIRECT, FORCIBLE, AND IMMEDITATE are
NOT SUFFICIENT for trespass, you must ALSO HAVE FAULT
 D, F, I were elements necessary to decide if we were dealing
with trespass (direct cause) or trespass on the case (indirect
cause)
o Sneakily changing law
o Policy
 extraordinary care creates less incentive for people to act, in lawful but
questionable circumstances
 inhibits economic growth during Industrial Revolution
 legal realism and social change…evolution of law
Factors and equations to assess reasonableness
 Adams v. Bullock
o Boy’s guardian filed suit for his injury resulting from swinging wire on bridge
above trolley line and was shocked when wires touched. Court held that jury
trial should not have even existed because there was insufficient evidence of
fault.
o Sets of standard of due care…D’s ordinary precaution could did not
involve this extraordinary peril
o Factors of due care
 Foreseeability
 Reasonable anticipation of harm
 Possible extent of harm…magnitude
 Likelihood of harm
 Absence of possible alternatives
 Cost, effectiveness, burden, risk
 Custom
 Lawfulness
 Danger/magnitude
o Policy
 Reduce risk/liability for business owners…growth
 Qualitative measure for negligence
 US v. Carroll
o Given the wartime circumstances, the court held that it was negligent for the
bargee no being on board the ship when the lines broke and the accident
occurred. B < PL
o Hand Formula
B < PL
-P- probability
-forseeability
-L- injury
-magnitude of harm
-B- burden
-feasibility
-value of activity
14
-(lawfulness)
-(custom)
-If B is less than the P and L multiplied, negligence exists
-cost of precaution not taken is lower than PL
-if the probability of harm occurring is greater, than we expect one to take
on a greater burden
-Hand is a quantitative formula for considering negligence
-Criticisms:
-factors tough to measure
-moral discomfort with economizing negligence/harm
-however, this economic analysis may provide some sort of
objective elegance
-do unto others as you would do unto self
-does not consider alternatives to or discontinuation of the activity
 Reasonable standard of care v. higher(est) standard of care
o RS


Should do
Economically efficient
o HS

Might be economically inefficient…x is the extra amount you have to
invest to avoid liability
o First Description
 RS
 If B < PL…Liability
 HS
 If B < PL + x…Liability
 (Or if B-x < PL…Liability
o problem: how do we decipher x
o Second Description
 RS
 If B > P…No Liability
 HS
 If B >>>PL…No Liability
 BUT if B > PL…Liability
o Problem: how much greater must P be than PL to avoid
liability?
o Third Description
 RS
 D will be liable if D did not do what D reasonably could
(should) do to prevent the harm
 HS
 D will be liable if D did not do what D could do to prevent
harm
15

Problem: Do we want to expect D to take every precaution
possible, or only some?
o Relationship between Higher Standard of Care and N and SL
 As we move from N to higher standards of care we move closer to SL
 N……….Higher Standard of Care…..SL
 Breach of reasonable care…..Breach of more than reasonable
care…..causation (defective product/ultrahazardous)
 …...............ease of finding liability………->
Concept of Reasonable Person
 The reasonable person
o External, objective evaluation
o Consider reasonable person in like circumstances
o Policy behind objective standard
 General welfare for community…sets minimum standard for behavior
 Deterrence
 Administrative ease
 Don’t have to deal with subjective
 Compensation
 Fairness to the victim
o Problems
 May punish those not morally blameworthy
 Inequities among Ds
 Exceptions to uniform reasonable person standard of care
o Distinct, apparent disabilities
 Held to standard of care of reasonable person with that disability
 Policy…victims on notice of risks
o Children
 Held to reasonable standard child of similar age, experience, and
intelligence
 Varies with particulars of child because we cant presume they
have capacity for reasonableness
 Children have not yet developed
 Very young children
 < 6 or 7…conclusive presumption cant comprehend risk
 7-14…rebuttable presumption cant comprehend risk
o rationale: presumptions about capacity to appreciate
reasonable calculus
 exception to the exception
o children engaging in adult behavior may be held to
adult standard of care
o Emergencies
 Evaluated under standard of care provided by a reasonable person in
same type of emergency
 Rationale: cant think with same reason and care in emergency
 Liability not absolved if D caused the emergency
16

Liability also may not be absolved if D was performing an activity
which required special training he received
 Some states reject emergency doctrine
o Common carriers
 Common carriers sometimes held to a higher standard of care
 Bethel v. NYC Transit Authority
 Court reversed order to hold common carrier to highest
standard of care. Court explicitly changed rule by holding that
common carriers should be held to a reasonable standard of
care.
 Policy
o Highest standard of care for common carriers is
outdated
o Sudden disability
 Hammontree v. Jenner
 Court held that SL will not be applied to drivers who cause
harm as a result of seizure-induced accidents
 Non-exceptions
o Mental handicap
 Hard to prove
 Easy to fraud
 Victims ability to protect themselves
 Risk isn’t as apparent as in physical disabilities
 Sometimes exception to the exception
 Total insanity
o Gender
 May lead to marginalization
 Status quo
o Elderly
 Line drawing problems
 Expectation of capacity
 Whereas all infants lack capacity
 Have learned concept of reasonableness, unlike kids
 Risk not quite apparent
 Other
o If expert, you may be held to the reasonable standard of care for experts in
certain circumstances
o Availability of facilities/resources of an individual case may play a role in
assessing the level of reasonable care due
Role of judge and jury in assessing N
 Judge decides law
o If reasonable people could not differ on facts, jury does not hear case
o Existence of duty is determined by judge
o Directed verdict
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 Jury’s role
o Decipher facts in situations where reasonable people may differ
o Particular standard of care is determined by jury
 Andrews v. United Airlines Inc.
 Court held that whether or not UA fulfilled their duty
adequately to injured passenger is a question for the jury
Role of Custom
 Role of custom
o Standard of care if reasonable
 NOT ALL CUSTOMS ARE REASONABLE
 Evidence of custom is not conclusive in all courts
o It will serve as at least some evidence for the jury to consider
o Custom provides a nice guide for what should be done
 Pertains to B
 Feasible for entire industry
 Pertains to P
 Foreseeable
o Advances in technology
 If D fails to take action to prevent a certain known risk he may be
found to be negligent or non-negligent depending upon whether
technology exists that could reduce risk
 Trimarco v. Klein
o Landlord left older shower doors in apartment bathrooms. Court held that it is
for jurors to decide whether evidence presented establishes a general custom
or practice
o Ignorance of customary safety measure MAY establish liability, and
accordance MAY defend against it
 Customs help develop reasonable expectations, but cannot define them
 What’s usually done may be what ought to be done is defined by a
standard of reasonable care, regardless if it what is usually done or not
 We cannot presume that customs are reasonable
Negligence per se (Role of statutes)
 R3
 negligence per se (negligence in itself)
o an actor is negligent if, without excuse, the actor violates a statute that is
designed to protect against the type of accident the actor’s conduct causes, and
if the accident victim is within the class of persons the statute is designed to
protect
 Martin v. Herzog
o “we think the unexcused omission of statutory [car] signals is more than some
evidence of negligence. It is negligence itself.”
o Court held that the need to heed safeguards prescribed by law… is to fall short
of the standard of diligence to which those who live in organized society are
under a duty to conform”
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






Excuses may allow people to violate statutes and avoid negligence
per se
Three requirements of negligence per se
1. D violated a statute
2. The statute was designed to protect against the same type of accident that D’s
conduct caused; and
3. The accident victim (presumably P) falls within the class or persons the statute
was designed to protect
There must be casual link between violation of statute and creation of harm
4 variations of negligence per se:
1. Pure negligence per se
 Bright line rules
2. Negligence per se with excuses (most common)
 Usually judge decides what counts
3. Rebuttable presumption (most common)
 Usually jury decides what counts
(important turning factor)
 Rebuttable presumption- claim made by P which D must rebut in
order to avoid liability
 if D offers such a rebuttal, P still has to burden of proving
negligence
4. Some evidence
Compliance with a statute doesn’t disprove your negligence, but it can help your case
License
 Having a license doesn’t disprove your negligence, and is in fact considered
irrelevant to your case
 Doesn’t deal with the actual action
 Action may still be negligent while licensed
 Medical licensing is an exception
Establishing negligence per se must be considered in light of the circumstances
 Chaffin v. Brame
 Court held that P was not liable for contributory negligence because
the rule required him to drive at night with caution to avoid objects
that can be reasonably perceived. The truck was not reasonably
perceivable and one does not have to anticipate another party’s
negligence even if one can foresee it.
 Court makes clear that circumstances must be considered
when establishing negligence per se
Excuse of violation absolves liability for negligence
 Impson v. Structural Metals, Inc.
 Court held defendant truck driver liable for injuries incurred by P
because he violated a statute intended as a safety measure and said
violation was found to be of proximate cause to P’s harm
 Some excuses:
 Cited in Impson and R2 § 288A:
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

incapacity; lack of knowledge of the need to comply; inability
to comply; emergency; compliance poses a greater risk thank
violation
Others:
 reasonable attempt to comply; confusing language of the
statute; outdated statute; statute that is contradictory to custom
However, some duties are absolute
Proving Negligence
 Circumstantial Evidence
o Negri v. Stop and Shop, Inc.
 Court held that circumstantial evidence about time and dirty food (no
direct evidence available) was sufficient for jury to draw inference
that baby food left spilled in the aisle led to P’s slip and fall.
 Circumstantial evidence
 witnesses claiming not to have jar breaking 15 to 20 minutes
before P slipped and fell
 the dirty baby food showing that the aisle had not been cleaned
for a substantial period of time
o Gordon v. American Museum of Natural History
 Court held that P could not recover for slip and fall on D’s premises
because there was no evidence that the paper was visible and apparent
for a sufficient period of time in order to constitute constructive
notice
 Res ipsa loquitur
o Byrne v. Boadle
 Court held that liability can occur on account of the accident that
occurred, without direct evidence that D was negligent
 Court reasoned that the barrel could not have rolled out of the window
and injured P by itself
o Type of circumstantial evidence
 If negligence required for injury to occur… THEN presumptive
evidence of N AND a link to a particular D to this evidence…then
there exists a REASONABLE INFERENCE
 Usually provides a prima facie case
o Two (or three) elements:
1. Type of accident that would not ordinarily occur without N
 Accident more likely than not the result of N
 Usually when accident seems freakish or improbable
o i.e. elevator falling several stories; handrail stops, while
escalator continues; soda bottle explodes
o analysis of this factor can change with technology
 exploding soda bottle used to be more common
2. Instrumentality within D’s exclusive control
 Links N to D
o Allows us to avoid SL
20

May be enough to show D has power or right of control even if
not actual control
o Way of showing more likely than not D was source of
N
 Key is tracing harm to D
 Prosser
o Shouldn’t think in terms of control, must show D is
more likely than not responsible for harm
 Restatement
o Talks in terms of N being within scope of D’s duty to P
3. P must not have contributed to injury through voluntary act of
her own
 Only in some jurisdictions does this element exist
 Contributory N concern…want to link source of N to D, not
anyone else
o Other factors:
o Explanation of event must be more accessible to D than to P
 Suggested, if not explicitly required, as an element in some
jurisdictions
 Not likely to be a controlling factor
 Persuasive but not indispensable factor for most courts
o Fairness argument
 If P doesn’t have access to information,
why should P automatically be out of
luck?
o Compensation
o TWO approaches to using RIL to prove N
o Must meet two (or three) criteria for RIL
o Ascertain weight of evidence
 How this is done depends on jurisdiction
 McDougald (spare tire through the window case)
 Permissible inference
 D has no burden of producing evidence to avoid losing
 If satisfy all three elements, jury may but need not find
D was N
 Permissible-inference rule…majority of Js
 RIL usually prevents dismissal of claim…gets to jury
 Form of circumstantial evidence
 D need not produce evidence to avoid losing
o May want to, but not necessary to prevent DV
for P
o Jury will evaluate weigh of inference
o N isn’t only conclusion reasonable person could
reach
o P still has burden of persuasion
21

Rebuttable presumptions…small minority of Js
 D must offer rebuttable evidence to prevent P’s DV
 Without rebuttal, P has N as a matter of law
 If all three element establish, jury must find for P
UNLESS D rebuts presumption
 Form of circumstantial evidence
o But weighed more strongly in favor of P
 D must produce evidence to rebut presumption
o Otherwise P must win
o Jury weighs rebuttal and may rule either way
 P still has the burden of persuasion
 In any J, RIL effectively lightens P’s burden
 Because P does not have to offer direct evidence
 P can recover based on inference, without direct
evidence of D’s specific acts
 FAULT IS STILL IMPORTANT
 RIL is circumstantial evidence of N
 Who evaluates RIL elements?
 Judge decides whether P has made prima facie case with
respect to each elements
o i.e. whether reasonable jurors could find each element
present
 usually, as with other evidence, for jury to decide whether each
element has been met
o if jury thinks each element as been met, then in most Js,
jury may infer D’s N
o D’s response in RIL cases
 DV for P is permissible under inference rule if no reasonable
juror could find for D
 Farina
o Court held that airplane going off runway is “so
convincing that the inference of N arising
therefrom is inescapable if not rebutted by other
evidence”
 D can get DV in RIL case if he destroys reasonable
inference of N based on P’s evidence
o i.e. if D makes it a non-RIL case
o Leonard
 Showed no exclusive control of Kelly
clamp
 Attacked instrumentality element
o Larson v. Saint Francis Hotel
 Cant link N of flying chair out of the
window to specific D…cant show
exclusive control
 Not a question of RIL for the jury
22
o D must eliminate at least one of the necessary
elements
o Demonstrate that:
 Accident is sort that commonly occurs
w/o N
 D had no control over the
instrumentality
 And/or P’s voluntary acts contributed to
the harms
o What if P has evidence of specific act of N?
 Generally, P can plead or prove evidence of specific N and
still rely on RIL
 P is usually allowed to use RIL
 When evidence tends to show specific acts that don’t
offer complete explanation of the accident
 And specific facts are consistent with the inference
 A few court’s disagree
 When there is direct evidence concerning the cause
of an incident, then RIL is inapplicable
o Especially if the specific evidence fully explains
all relevant events
o Connolly v. Nicollet Hotel
 Not RIL case because we have evidence
of D’s conduct
o Use of common experience
o McDougald v. Perry
 court held that the spare tire escaping from the cradle
underneath the truck, resulting in the tire ultimately becoming
airborne and crashing into P’s vehicle, is the type of accident
which , on the basis of common experience and as a matter
of general knowledge, would not occur but for the failure to
exercise reasonable care by the person who had control of the
spare tire
 D contests P did not produce direct evidence
o Cited Goodyear…if evidence is available, P
must use it
 Court ruled that there was not sufficient
evidence available to P
 Chain was in exclusive possession of D
o Multiple defendants
o General rule
 RIL will not apply against multiple Ds where the evidence is
only that some unidentified one of them must have been
negligent
o Ybarra v. Spanguard
23

P suffers side effect from surgery. Court held RIL to apply. It
would be unreasonable to require P to identify the negligent D,
insofar as he was unconscious throughout the operation.
Furthermore, Ds bore interrelated responsibilities; each of them
had a duty to see that no harm befell P. Therefore, each of the
Ds who had any control over or responsibility for P must bear
the burden of rebutting the inference of negligence by making
an explanation of what happened (this should be done at a new
trial).
 Special relationship may have justified application of
RIL…patient’s dependence
o may extend beyond hospitals
 Effects
o RIL now makes you liable for negligence of
your team members
 Incentive….promotes your carefulness
in observing everyone/everything in a
team setting
o Holds people responsible even though they may
not know who is at fault
 Policy: if RIL doesn’t apply, unconscious patients
could hardly ever recover
o Incentives of employees to remain silent
o Fireman’s Fund American Insurance Cos.
 court distinguished from Ybarra and upheld SJ for Ds when P
could not pick out exactly who caused the harm
Special case of medical malpractice
 in MM suits, courts take into account specialized skill and knowledge of doctors
o they are subject to a higher standard of care
 however, the question is whether D acted in conformity with the common practice
o part of P’s prima facie case is to prove D departed from relevant professional
standard
 use of expert witness is often critical
 Topics
o Proof
 Expert witness educates jury on what the standard of care is and/or the
defendant’s conduct
 We need to evaluate what the standard of care is, and if D fell
below it
 Other options for assessing standard of care
 Knowledge of D’s expert wtiness
 Treatises
 Common knowledge
 Prescription package info
24
o
o
o
o
o
 Court
 EW is truly essential because he is providing knowledge about a
situation the jury knows nothing about
 Often times it comes down to what EW is more persuasive
Standard of care
 That of a professional with the level of skill and learning commonly
possessed by members of the profession in good standing
 Good results not guaranteed
 Differing schools
o D must be judged by reference to the belief of the
school he follows
Specialty
 If a specialist, D will be held to minimum standards of that specialty
 Sheely v. Memorial Hospital
 Even though proposed expert did not practice in the same
specialty as D, he may testify as an EW because he had
“knowledge, skill, expertise, training, or education…in the
field of the alleged malpractice”
Locality rule
 Disappearing in favor of a national standard
 Sheely v. Memorial Hospital
o Court abandoned similar locality rule
 Rationale: nationalization of communication,
transportation, and education
 Policy: allows testimony of EW from outside
the community…may exacerbate the conspiracy
of silence found in local medical communities
Role of custom
 Medical custom is much more conclusive than regular custom
Informed consent
 Must disclose all risks and alternative treatments which are sufficiently
material that a reasonable patient would take into account in deciding
whether to undergo treatment
 Failure to do so is deemed N
o Sometimes, but rarely anymore, a battery
 Matthies v. Mastromonaco
 court held that to obtain informed consent to an alternative,
physician should explain invasive and noninvasive
alternatives, including risks and likely outcomes, even when
the chosen course is noninvasive…IC is required for noninvasion
o decisive factor in deciphering IC is whether or not
material facts (alternatives and risks) were properly
explained to allow patient to make decision…duty to
provided non-recommended alternative measures
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o not enough to just give treatments that doctor
recommends (thinks what’s best for her)
 doctor is in effect making lifestyle choice
o Policy: imposition of view infringes upon patient’s
autonomy…self-determination
 Increasing patient’s rights
 Scope of disclosure
 Risks and medically reasonable alternatives
o Reasonable patient approach…some Js
 Lifestyle and medical risks of what a reasonable
person would want to know
 Self-determination
 Do not need an expert witness
 Jury question
 Benefit to patient
 Defining reasonable care in terms of patient
 Highly unsually…usually decipher
reasonable care along lines of D
 However, hindsight is 20/20
o Subjective patient approach…rare
 Truly gets at the heart of self-determination
o Reasonable doctor approach…some jurisidictions
 Notice…you are aware of the common remedies
 Reduces claims
 Less burden on the doctor
 Expertise of the doctor
 He has all the info
 Burden of time
 Economic incentives to talk to patients
about the most pertinent risks
 Doctor who tells you what to do, doctor who
advises, doctor who tells you choices and that’s
it
 Lets medical profession define standard of care
 Usual protocol
 EXCEPTION TO SCOPE OF
DISCLOSURE…EMERGENCIES
o Function of jury
 Are juries not up to the task of discerning medical custom?
 Reform….should we leave it to the medical boards to decide
what the standard of care is?
o Duty/breach/causation/damages
 Duty…special relationship
 Breach…scope of disclosure concerns the standard of care
 Causation…. information would have led a different decision by the
patient
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
Majority…objective test…reasonable patient
o Would a reasonable person have foregone the
procedure?
 Minority…subjective test
 Damages
 Very hard to recover
o You need the procedure, the risk usually isn’t worth
avoiding it
o Elective procedure…you may have a chance of
recovering
o When you have different choices of treatment, then you
might have a chance of recovering
o Is the harm not being able to make the decision (dignitary harm) or is it the
physical risk?
 without physical damages you cannot recover in these cases
 not a case of dignitary harm…courts do not allow for recovery
for pure emotional stress
o If doctor discloses risks and alternatives, patient picks alternatives, risks
manifest in later harm…negligence does not exist (unless doctor
performed procedure incorrectly)
________________________________________________________________________
CAUSATION

You need to prove both actual and legal causation
CAUSE IN FACT- ACTUAL CAUSE
 P must first show that D’s conduct was the cause in fact of the injury. This usually
means that P must show that “but for” D’s negligent act, the injury would not have
occurred
 Concurrent causes
o Where two events concur to cause harm, and either one would have been
sufficient to cause substantially the same harm without the other. Each of
these concurring events is deemed a cause in fact of the injury, since it would
have been sufficient to bring the injury about
Lack of particularistic evidence
 Stubbs v. City of Rochester
o P contracted typhoid fever. D argued that P must eliminate all other possible
causes of his ailment before recovering. Court disagrees, and states that the
rule is if two or more possible causes exist, for only one of which a D may
be liable, and party injured establishes facts from which it can be said
with reasonable certainty (preponderance of the evidence) that the direct
cause of the injury was the one for which the D was liable the party has
complied with the spirit of the rule. Otherwise, recovery would be
impossible. Court held that the case on the part of P was not so lacking in
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proof as matter of law that his complaint should be dismissed. In fact, a most
favorable view of the present facts by P justifies that this is a question for a
jury. Reversed and remanded.
o Court is working with probabilistic evidence
Policy considerations for/against probabilistic evidence
o Compensation
 Over/under
o Deterrence
 Deterring someone for doing no wrong…overdeterence
 Not deterring someone for doing wrong….underdeterrence
Proportional liability solution
100 P’s/$100 damages
o cases normally
 25
 75
o cases with negligence
 100
 100
o probability neg. caused harm
 75%
 25%
o compensation to P
 $100
 $0
o optimal compensation
 25 overcompensation, 75 optimal compensation
 25 OverC, 75 OptC
o Overall payout
 $10,000 paid out, $7,500 caused…$2,500
 overcompensated by 1/3
 $0 paid out, $2,500 caused…-$2,500
 undercompensated by 1/3
Theoretical solution…Proportional liability (cont. from above)
o Compensation to each
 $75
 $25
o optimal compensation
 75 people undercomp, 25 people overcomp
 75 people overcomp, 25 people undercomp
o Optimal deterrence
 Yes. $7,500
 Yes. $7,500
Proportional liability is a way to get optimal deterrence
o Limited in application by the courts…not a perfect solution
 Does not feel as though it is true causation
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o At least here we get deterrence; whereas in the former system we get both
compensation and deterrence wrong
 This kind of evidence makes sense in mass tort (i.e. toxic tort) claims
o If everyone does not show up for court, then we will get underdeterence
Loss of Chance
 Alberts v. Schultz
o P did not provide proof to a reasonable degree of medical probability that
causally linked D’s negligence with the loss of a chance to avoid
amputation of his leg below his knee. Ds only could have reduced the
chance to recover if P had a chance to recover. Whether such surgery would
have precluded amputation or whether P was even a candidate for such
surgery was not sufficiently evidenced. Therefore, P failed to demonstrate
causation, and recovery cannot be had. Dissent suggests that their may have
been enough evidence.
 Claim
o Lost chance to save his leg
 Ordinary medical malpractice
o Harm
 Lost leg
 Tangible losses: medical care, loss of job
 Intangible losses: emotional distress
o Damages
 $100
 Lost chance
o Harm
 Lost chance to save the leg
o Damages
 Chance you started with (40%) – the chance you’re left with (0%) =
40%
 40% x $100= $40
 What if the lost chance (starting-ending chance) is greater than 50%?
o It is more likely than not that the doctor’s negligence caused the loss of
your leg
 Ask for $100 in damages
 Forget loss of chance language, just go to more likely than not
 Majority of jurisdictions accepting lost chance…
o Less than 50%…coverage for lost chance
o Greater than 50%...back to 100% recovery under traditional tort law principles
o Policy:
 Overdeters
 Overcompensates
 Courts say that we must prove the percentage suggested by your expert witness
by a reasonable degree of medical probability
o Either the statistics are right and will be used, or they wont be
29
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

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
o i.e. there is greater than a 50% chance that you lost a 40% chance in saving
your leg
Alberts court’s rationale for lost chance recovery
o Special relationship
o Statistics
o Exacerbating the injury
o The purpose of being of a physician is to increase your odds
o Without it…we underdeter
o Without it…we undercompensate
Traditional
 <50 %...$0
 >50%...$100
o compensation for P where N caused lost leg, compensation for P where N
did not cause lost leg
 under, optimal
 optimal, over
o overall deterrence
 under
 over
Lost chance
 $40…40% x $100= $40
o compensation P where N caused lost leg, compensation to P where N did
not cause lost leg
 under, over
o overall deterrence
 optimal
Probabilistic recovery allows for optimal deterrence, but skews compensation
o If D’s N does not reduce loss of chance to 0%, must D pay lucky Ps (those
who didn’t actually lose their leg), not just unlucky Ps (those who lost a
leg)?
o Optimal deterrence only if we pay BOTH those who lost legs and those
who did not
 However, most courts REQUIRE THAT YOU LOSE THE LEG
Arguments against loss of chance claims
o Overdeterrence
o More litigation
o Overcompensation
o Feels too much like the lottery
Joint and Several Liability
 If more than one person is the proximate cause of P’s harm, and the harm is
indivisible, then under the traditional common-law rule, each D is liable for the
entire harm. The liability is said to be “joint and several.”
o JSL
 Each of D is L for full amount of P’s damages
30
 P cannot recover for more than the allocated amount
 Ds may be sued singly or with the other tortfeasors
 Applies only to single indivisible injury
 P is only entitled to one satisfaction of his claims
o Example
 D1 and D2 jointly caused $2000 damages
 P sues and gets a judgment against D1
 Under JSL, how much can she recover from D1?
 $2000, assuming D1 has the resources
 Under SL, how much can she recover from D1?
 Only some portion of the damages
o How damages are divided up depends on jurisdiction
 May be pro rata (1/2)
 OR based on percentage of degree of fault
o Traditional cases for JSL
 Concerted action
 Multiple Ds act in concert regarding tortuous activity
o Has a “co-conspiratorial element”
 Drag racing
 Planned battery
 Single indivisible injury
 Multiple Ds contribute to single harm
o Which cannot be causally apportioned among them
 Can occur concurrently or successively
 Alternative liability
 Both D are acting N, but only one caused the harm
o Don’t know who
o Summers v. Tice
 Ds negligently shot P. court held that burden is
on each of the Ds to show that it was the other’s
shot which hit P. D’s “brought about a situation
where the negligence of one of them injured P,
hence it should rest with them each to absolve
himself if he can.” Otherwise, P might be left
remediless
 Burden of proof/production shifted
 Rationale
o Wrongdoers; deterrence;
compensate the innocent; P has
no access to evidence
o Garcia v. Joseph Vince Co.
 Court ruled against JSL because both
manufacturers were not acting negligently
o Single indivisible injury
 Concurrent acts
 D1 and D2 drive negligently and crash into each other
31

Result: injury to passenger in D1’s car
o Ds concurrently caused the harm
 Successive acts
 D1 negligently cause P to fall in hole
 D2 then negligently drops stone on P’s head
 Result: concussion to P
o Each D contributed to harm, though successively
o Concurrent events
 2 Ds negligently set separate fires that merge and burn down P’s
house
 Is there but-for causation with respect to either?
o No, if one of the Ds had not been N, fire would still
develop as a result of the other D’s N.
 So, does this mean there is no causation?
o No, fairness suggests P should recover given both Ds
are n and P is innocent
 Basis of recovery
o N of the Ds was a substantial factor
 Most courts would hold Ds JSL
 What if 1 D is N and the is not, both set fires that merge to causes
P’s house to burn down?
 Should the negligent D be L?
o P
 Innocence argues for full compensation
 Still substantial factor
o D
 Overburdens D
 Cant share burden with other D as in
former hypo
 Courts divided
o Rational for JSL
 Guarantees full compensation for wronged P
 (Sometimes) legal fiction that Ds acted jointly in causing harm
 Single, indivisible injury as result of N of Ds
o What does JSL mean in practice?
 Against whom can P recover full damages?
 Any of the D’s singly or as a group
 If D1 pays P full damages, can P recover full damages from D2?
 No, P only entitled to full damages, no more
 If P gets judgment against D1, and D1 cannot satisfy judgment, can P
sue D2 for damages?
 At early common law?
o No
o Single, indivisible claim
 Judgment against D1 extinguishes claim against
D2
32


Modern CL?
o YES
o Goal is full compensation
Contribution
o D who has paid more than his pro rata share may often obtain partial
reimbursement from the other Ds; when he does so, he is said to have received
contribution
o Example
 D1 and D2 jointly and negligently cause P’s harm ($2000)
 P gets judgment against D1
 Does D1 have to be stuck with full amount?
 Early common law?
o Yes
o Courts weren’t worried about overpayment of
wrongdoer
 Modern common law?
o NO, D1 has right of contribution against other joint
tortfeasors
 Statute or judicial decision
 Uniform Contribution Among Tortfeasors
Act
o Fairness notions
o Contribution
 How does D1 seek contribution?
 Can try to implead D2 in original suit?
o If all liable and D1 pays judgment, motion for
contribution
 OR D1 can bring separate action against D2
 What must D1 show for separate action?
 That other tortfeasors were liable
 That D1 was held liable
 And that D1 paid more than his pro rata share
 How much is D1 entitled to?
 Amount above his pro rata share ($1000)
 D1 and D2 engage in planned battery against P; P sues D1 and
gets judgment for $2000
 can D1 seek contribution against D2 for $1000?
o NO, Uniform Act prohibits right of contribution for
intentional acts
o Rational
 Not troubled if overburden intentional
wrongdoer
 Contribution and Insolvency
 D1, D2, and D3 jointly and negligently caused Ps harm
o Judgment against all for $3000
o D1 pays $3000
33
o Moves for contribution from D2 and D3
o D2 is insolvent
 What does D1 recover from D3?
o Under Uniform Act?
 $1000
 Each tortfeasor is liable for no more than pro
rata share
 D1 stuck with $2000, $1000 more than pro rata
share
o Under equity principles (most courts)?
 Solvent tortfeasors divide full amount among
themselves
 Each pays $1500
 D1 pays $500 more than pro rata share, but D2
also pays $500 more than pro rata share
o Settlement and Release of Claims
 If P settles with D1 for less than the full amount of damages can she
go after other tortfeasors?
 Early common law?
o No
o Legal fiction that there was only one cause of action
o Fear P would settle successively and get
overcompensated
 Modern common law?
o YES
o Really are separate claims
o Wanted to encourage settlement
 D1 and D2 jointly and negligently cause P’s harm; P settles with D1
for $500 ($2000)
 What can P recover from D2?
o $1500
o entitled to the rest of the full damages
 D2 paid $500 more than pro rata share ($1000)
 Can D2 seek contribution against D1 for $500?
o NO. Uniform Act bars D2 from seeking
contribution from D1 (the settling tortfeasor)
 Why does Uniform Act bar contribution from settling tortfeasor?
 Settlement should end litigation
 Want to encourage settlement
 D1 could possibly settle for more than pro rata share
 P’s damages are $2000, settles with D1 for $500
 What does D2 pay under alternative approach?
$1000, gets pro rata, not dollar credit for settlement
 How much does D2 pay under Uniform Act?
o $1500, gets dollar, not pro rata, credit for settlement
 Which better achieves goal of compensation?
34
o Uniform Act, P gets full damages
 P’s damages are $2000, settles with D1 for $1500
 What does D2 pay?
o $500
 Can D1 (“settler”) seek contribute from D2?
o Not under uniform act
o In some states yes
o Approaches to deciphering the claim
 D1 settles with P, D2 pays P
 Pro rata approach
 Settlement with D1…$5
 Jury Award at Trial…$20
 D2 pays….$10
 P receives…$15
o P gives up 50% of his claim when he settles with D1
under pro rata
 Dollar credit approach
 Settlement with D1…$5
 Jury Award at Trial…$20
 D2 pays….$15
 P receives…$20
o Lots of permutations and variations state to state
Market share approach
 Extension of double fault and alternative liability to situations with 3 or more parties
 Common in products liability cases where P was injured by her long-ago usage of a
product which she can identify by type, but not by brand name
 If a given D cannot prove that he did not cause the injury, he may be required by the
court to pay percentage of P’s injuries which the D’s sales of the product bore to the
total market sales of that type of product
 Sindell v. Abbott Laboratories
o Facts: P’s mother took type of DES drug during pregnancy, but couldn’t
remember which brand.
o Holding: P need not identify the single manufacturer of the drug that her
mother used. It would be impossible, and is not P’s fault because bad effects
showed up years later.
 Policy: Ds are better able to bear the cost of injury resulting from the
manufacture of a defective product since they can discover and guard
against defects, and warn of harmful effects . thus, the rule here will
give D an incentive to make their products safe.
o No right to exculpate oneself
 Some later decisions depart from Sindell and do not agree that D
should be allowed to exculpate itself by showing that it did not make
the particular items in question.
35


Ds would have to show that they were out of the market or not
producing that item at all
Hymowitz v. Eli Lilly & Company…LOOK AT SHEET ONLINE
 Facts: mass litigation for injuries caused by DES ingested by
pregnant mothers
 Holding: a D should not be permitted to escape liability merely
by showing that it could not have possibly produced the DES
that injured the particular plaintiff. “Because liability here is
based on the over-all risk produced, and not causation in a
single case, there should be no exculpation of a D who,
although a member of the market producing DES for
pregnancy use, appears not to have caused a particular
plaintiff’s injury.
 Policy: fairness; compensate P
 Why not JSL
o Not small number of Ds; not concert in action; not
indivisible
 Majority
o Exculpate…no (unless outside pregnancy market)
 Rationale based on risk creation, not damage
done
 Focusing on optimal deterrence
 If you’re marketing for use in human
pregnancy
o If you’re not marketing for use in
human pregnancy you can be
exculpated
o Inculpate…yes (under ordinary causation rule)
 Full damages if P shows causation
 Inconsistent…allowing for full payment when
system is based on several liability
 Market share approach exists as alternative
means when P cannot inculpate a particular
D…here, we have traditional tort law
 Creates overdeterence
o Rule…national market share/several liability
 Dissent
o Exculpate…yes
o Inculpate…yes (JSL)
 Consistent…always liable for 100%
o Rule…Joint several liability/national market share
 Market share is relevant for contribution
 What view would the defense want?
o Strong case…dissent…chance to get off
o Weak case…majority…less damages to play
o ULTIMATELY WANT TO GO WITH MAJORITY
36


Majority does not require overpayment
 Optimal deterrence
 Hypo…100k in damages, 5 Ds, 15% market share
o Majority
 P gets…5 x 15= $75
 Each D pays…$15 (15% x $100)
 If one D is insolvent
 Each D pays 15
o They continue to pay their
market share
 P gets 60
 Goal….OPTIMAL DETERRENCE
o Dissent
 P gets….$100
 Each D pays…$20
 If one D is insolvent
 Each D pays 25
o One may pay full 100,
contribution based on national
market share thereafter
o P gets $100
 Goal…OPTIMAL COMPENSATION
 Why a national market share?
o Administrative ease
 You don’t have to relitigate the market for every
P
 Its about the risks Ds created overall in the
entire market
o Problems
 May be bringing in Ds who have nothing to do
with the situation
o For this to work (gain optimal deterrence), you would
need every jurisdiction to follow this approach
 Most do, but some use a local market, some
only allow for traditional tort law compensation,
some follow dissent
MAJORITY OF COURTS FOLLOW THE MAJORITY
APPROACH
 Broader application
o Fungibility problems…courts think this is key
 If products have different composition it is
harder to assess the creation of risk
o Hym is limited to products liability situations in
which problems manifest years later and situations
where legislature condones this kind of approach
37
o National Market Share
 Emerging consensus seems to be that a national market concept
should be used for purposes of divvying-up damages among Ds
according to their market shares
 Easier to administer than local approach
 Adopted in Hymowitz
o No joint and several liability
 Courts adopting the market share theory are, more and more, rejecting
the standard joint-and-several liability approach, in favor of allowing P
to collect from any D only that D’s proportionate share of the harm
caused.
 Ps may not get full recovery
o Some Ds may be out of business, others may exculpate
themselves
o Rejected for socially valuable products
 The more socially valuable the court perceives the product in
question to be, the less likely it is to apply to market-share doctrine.
 Policy: prices may raise to counteract liability, and thus a
socially critical good may be too expensive
PROXIMATE CAUSE-LEGAL CAUSE
 Proved duty, harm, actual cause…proximate cause is the last hurdle in a tort
 Policy requirement is limiting legal liability of improbable of far reaching
consequences of D’s actions
o Limitations on time, space, and relation between injury and secondary
harm
 However, when policy is the prime consideration, we may be better off
addressing the issue of duty
 Foreseeability factors: harm of P, type of harm of P, extent of harm of P,
manner of harm of P, Plaintiff himself
Unexpected Harm
 Two competing views
o Direct causation (aka hindsight theory of proximate cause)
o Forseeability
 Direct causation
o D is liable for all consequences of her negligent act provided that are not due
in part to “superseding intervening causes”…no matter how far-fetched or
unforeseeable
o In Re Polemis (Eng., 1921)
 P chartered ship to Ds, who negligently dropped a plank into the hold
while unloading it. Plank struck a spark and spark ignited petroleum
on the ship, thus destroying the ship.
 Holding: Although not foreseeable, court held that “if the act would or
might cause damage the fact that the damages it in fact causes is not
the exact kind of damage one would expect is immaterial, so long as
38

the damage is directly traceable to the negligent act, and not due to
the operation of independent causes having no connection with the
act.”
 Unforeseeable extent and type…PCause if some harm is
foreseeable…then PC for anything that is a direct result
 Policy: make Ps whole
 Contra Wagon Mound
 STILL USED IN PERSONAL INJURY CASES…MINORITY
VIEW
 Because direct causation rule here may result in limitless
liability
The foreseeability view (scope-of-risk)…most Js
o Makes D liable for consequences of negligence that were reasonably
foreseeable at the time he acted
 R2 § 281: if D should have anticipated a particular risk at the time he
acted, and he negligently failed to avert that risk, he would be liable if
that risk caused P’s harm
 Policy: does not allow for overdeterrence
o Wagon Mound No. 1 (Austral. 1961)
 D’s ship spilled oil into bay and ended up on Ps wharf. Oil ruined
slipways. Oil (which is said not to burn) was accidently set afire by
P’s workers, which ignited a cotton rag floating on the water, and led
to the burning of the whole dock.
 Holding: D is liable for slipways. However, No proximate cause for
fire. Ds not liable because the result was unforeseeable. Rejection of
the direct causation rule because it is unjust.
 Type (and maybe even extent) of injury must be foreseeable
for proximate cause
 Limit liability; make liability proportional to wrongdoing
 MOSTLY FOR PROPERTY CASES
 Policy: simpler as well as less burdensome to D to apply same
rule to question of scope of liability in determining whether
conduct was negligent to being with i.e. whether result was
foreseeable
o Unforeseeable Plaintiff
 Palsgraf v. Long Island R.R.Co.
 Holding: The court, in a decision by Cardozo, held that D was
not liable for injury to P who was hit by scales that fell down as
a result of fireworks going off (which occurred when they fell
out of the backpack of a man an employee was attempting to
help board a train). “The conduct of D’s guard, if wrong in its
relation to the holder of the package, was not wrong in its
relation to P, standing far away. Relatively to her it was not
negligence at all. Nothing in this situation gave notice that the
fallen package had in its potency of peril to persons thus
removed…P sues in her own right for a wrong personal to her,
39
and not as the vicarious beneficiary of a breach of duty to
another.” Furthermore, generally speaking,… “[A] wrong is
defined in terms of the natural or the probable, at least when
unintentional.”
o Cardozo address and dismisses the case because of a
lack of duty
o “proof of negligence in the air, so to speak, will not
do”
o P was not within the scope of risk
 What Cardozo refers to as the “orbit of
danger”
 P is not a reasonably foreseeable P
o CARDOZO ON PROXIMATE CAUSE
o LIKE Polemis and Benn…MINORITY VIEW
 “we may assume, without deciding, that
negligence, not at large or in the abstract, but
in relation to P would entail liability for any
and all consequences, however novel or
extraordinary”
 direct causation
 some FOS…then PC for anything that
is a direct result
 Dissent
o Similar to direct causation
o When an act imposing an unreasonable risk of harm to
the “world at large” occurs, “Not only is he wronged to
whom harm might reasonably be expected to result, but
he who is in fact injured, even if he be outside what
would generally be thought the danger zone”
o Proximate cause is determined out of convenience
 Factors for determining proximate cause:
natural and continuous sequence between cause
and effect; direct connection; not too many
intervening causes; result not too remote from
the cause (time and space); attenuated;
foreseeability; substantial factor (Suter does not
like this)
o On proximate cause… “its all a question of
expediency…of fair judgment”
o D is “not liable for harm different from the harms whose risk made the
D’s conduct tortuous”
R3 (Liab. For Phys. Harm)(Tent. Dr. #3)
§ 29
 R3 does not bar unforeseeable Ps, but rather bars liability for
harmful results that are outside the type of harms the risk of
which made the conduct negligent
o Cases in which D is liable although there is some unforeseeability:
40


once P suffers any foreseeable impact or injury, even if relatively
minor, it is universally agreed, even by courts following the
foreseeability rule, that D is liable for any additional unforeseen
consequences (provided these do not stem from “intervening
causes” so unlikely that they should supersede liability)
 Secondary harm
o Stoleson v. US
 Court held that man suffering from
complications stemming from working at a plant
could gain original damages from his employer
and also incremental damages from his
employer for the hospital’s negligent treatment
of him
 General rule: Original tortfeasor is
usually liable for original injury and
injury caused by secondary
harm…however, he is going to look to
the second actor causing the second
harm for contribution
 Eggshell Plaintiff
o take P as you find him
 unforeseeable extent and type of physical
injury…proximate cause
o applies to cases involving physical injuries, usually not
those cases involving emotional distress
o Benn v. Thomas
 P is rear ended by D and dies 6 days later. Jury
instructions on eggshell P okay. R2 (torts) §
461: The negligent actor is subject to liability
for harm to another although a physical
condition of the other makes the injury greater
than that which the actor as a reasonable man
should have foreseen as a probable result of his
conduct.
o Rational of EP Rule: maybe that courts are just more
apt to impose liability on physical injury cases rather
than property cases (much like they are more apt to
impose liable on intentional harms rather than negligent
harms)
 courts adhere much more to logical and
common sense reasoning than that by strict
legal principles
 AMBIGIOUS
 After finding yourself liable in general…D is
liable for extent and type
Rescuers
41




Intervention of rescuer not truly foreseeable, but courts still
impose liability and allow for the rescuer’s recovery
Foreseeable but highly unlikely
 Foreseeability rule has been weakened by cases holding that as
long as the actual harm to P was remotely foreseeable, there
is liability even though these consequences were highly
unlikely
General class of harm but not same manner
 As long as the harm suffered by P is of the same general sort
that made D’s conduct negligent, it is irrelevant that the harm
occurred in an unusual manner
o D gives a loaded pistol to X, an 8-year-old, to carry to
P. In handing the pistol to P, X drops it, injuring the
bare foot of Y, his playmate. The fall sets off the gun,
wounding P. D is liable to P, since the same general
kind of risk that made D’s conduct negligent (the risk of
accidental discharge) has materialized to injure P; the
fact that the discharge occurred by means of an
unforeseeable dropping of the gun is irrelevant, D is
not liable to Y, however, since his foot injury was not
foreseeable, and the risk of it was not one of the risks
that made D’s conduct initially negligent.
R2 § 281
Illustr. 3
o See case below (Petition, Kinsmen 1) as well
P part of foreseeable class
 The fact that injury to a particular P was not especially
foreseeable is irrelevant, as long as P is a member of a class as
to which there was a general foreseeability of harm
o Petition of Kinsmen Transit Co. (Kinsmen 1)
 D negligently moors its ship, and the ship
breaks away, causing it to create a dam, which
results in a flood. The Ps, various riparian
owners whose property is flooded, sue. Court
held that these owners can recover against D,
even though it would have been hard to foresee
which particular owners might be flooded. All
of the Ps were members of the general class of
riverbank property owners, as to which class
there was a risk of harm from flooding.
o Kinsmen 2
 Case on the same matter (claim from shippers
blocked by destruction). Ruled that recovery on
Ds was not possible because it would be “too
tenuous and remote to promote recovery.”
Quoting and proving that proximate cause is “all
a question of expediency…if fair judgment”
42
Intervening Causes
 R2 § 449: if the likelihood that a third person may act in a particular manner is the
hazard or one of the hazards which makes the actor negligent, such an act whether
innocent, negligent, intentionally tortuous, or criminal does not prevent the actor from
being liable for harm caused thereby
 Superseding cause
o Intervening causes sufficient to prevent D from being negligent…supersede or
cancel D’s liability
 Foreseeability rule
o If D should have foreseen the possibility that the intervening cause (or one
like it) might occur, or if the kind of harm suffered by P was foreseeable
(even if the intervening cause was not itself foreseeable), D’s conduct will
nonetheless by the proximate cause. But if neither the intervening cause
nor the kind of harm was foreseeable, the intervening cause will be a
superseding one, relieving D of liability.
 Limitations on time, space, and relation between injury and
secondary harm
 Foreseeability factors: harm of P, type of harm of P, extent of
harm of P, manner of harm of P, Plaintiff himself
o Foreseeable intervening causes
 Acts of nature generally
 Foreseeable negligence of third persons
 Dram shop acts may tavern owners liable for the acts of those
who they serve too much liquor
o But not those who provide liquor at social functions
 Foreseeable criminal or intentionally tortuous conduct
 Responses to D’s actions
 Attempted escape from danger
 Rescue
o D may be liable to the rescuer or person being rescued
 Pridham v. Cash & Carry Building Center
(NH, 1976)
 Ambulance driver’s heart attack led to
further injury; negligence of third party
rescuer foreseeable; not a superseding
cause; D liable.
o UNLESS, the rescue is done in a grossly careless
manner
 Aggravation of injury
o Medical treatment
 UNLESS grossly negligent
o Most malpractice is not superseding
 Ambulance gets into accident
 Clerical mix-up
 Lowered vitality
43
 Susceptibility to another disease
 Subsequent accidents
 Susceptibility to another accident
 Wagner v. Mittendorf (NY, 1922)
o D negligently broke P’s leg;
while recovering D slipped with
crutches and broke leg; D liable.
 Suicide
 If driven insane by D’s harm
o Unforeseeable intervention but foreseeable result
 Rationale: D imposed upon the P the risk of the same type of harm
that occurred, the fact that it was produced by an unforeseeable
intervention should not matter
 Gibson v. Garcia (DC, 1950)
o If evidence shows that a improperly maintained pole
would have broken without the impact of X’s car, X’s
negligence will not be a superseding cause, even though
it was unforeseeable.
o Unforeseeable intervention with unforeseeable results…SUPERSEDING
 Extraordinary acts of nature
 i.e. lightning
 Intentionally tortuous or criminal acts by third persons
 Doe v. Manheimer (CT, 1989)
o P raped behind D’s bushes in a rough neighborhood. D
not liable because the harm caused was not
foreseeable. It was not of the general type D caused
(unforeseeable result); it was not in D’s scope of risk;
nor was D a catalyst (independent cause).
o Liable for proximate cause is within the scope of
risk
 Gross negligence by third persons
 Other highly unusual intervening causes
o Dependent v. independent causes
 Evaluation question: Did D’s conduct increase the risk that an
intervening cause would occur and bring damage, or would that
type of damage occur anyway?
 Was D a catalyst?
o PC if the intervening cause is dependent
o Judge and Jury
 Once the proximate cause standard has been formulated by the judge,
the final decision is a factual one.
 Only a factual issue for the judge if reasonable men would not differ
________________________________________________________________________
DEFENSES TO NEGLIGENCE
44

D can raise two kinds of defenses based on P’s behavior
o P’s fault
 Contributory or comparative negligence
o P’s assumption of risk
COMPARITIVE NEGLIGENCE
Contributory Negligence
 Most Js have rejected contributory N in favor of comparative N
 Traditionally, contributory N was an affirmative D to claim for N
o D usually had the burden of proof
o Completely barred P from recovering
 Standard of conduct is like that for ordinary N:
o Reasonable person of ordinary prudence in like circumstances
 Seems contrary to goal of compensating injured Ps
 But has some advantages
o Avoids necessity of apportioning damages for single indivisible injury among
multiple causes
o Avoids comparison of incommensurables
o Consistent with individualism of common law
 Holds people responsible for taking care of themselves
 A number of doctrines were developed to limit the harshness of contributory N
o never a defense to intentional torts, recklessness, or willful misconduct
o doctrine of Last Clear Chance, mentioned in Glannon
 when doctrine of last clear chance applies, D is L in full for the entire
harm as if the P had not been contributory N
 Last Clear Chance
o Allows P whose N placed him in a position from which he is powerless to
extricate himself to recover for his injuries when:
 D discovers the danger
 Still time to avoid the harm, and
 D fails to exercise reasonable care to do so
Comparative Negligence
 In virtually all states, contributory N (no recovery rule) has been replaced by
Comparative N
o Last clear chance is also eliminated in most Js
 No need to ignore P’s N when the rule is less harsh
 With either contributory or comparative N, courts are concerned with P’s
“contributory” N
o Sometimes courts use term “contributory N” even in comparative N Js
because P contributed to the harm
 Difference is the amount P can recover, if N
o Under contributory N?
 P recovers nothing
o Under comparative N?
45





P recovers reduced (or sometimes no damages), depending on the rules
of the state
What is compared?
o Generally damages are apportioned based on degrees of fault (negligence)
o Some cases also consider causation
 Uniform Comparative Fault Act, directs attention to
 Both the nature of the conduct of each party at fault and
 The extent of the causal relationship between the conduct and
the damages claimed
o Makes sense to think of both
 E.g., remote causation makes degree of contribution slight
Different Types of comparative N
o Pure comparative negligence (for exam)
 Most judicially adopted comparative N systems
 Uniform Comparative Fault Act
o Modified comparative negligence
 Most statutorily adopted comparative N systems
Pure comparative negligence
o How does P’s n affect recover?
 P’s recovery is reduced in proportion to her fault,
 Regardless of whether P is more less N than D
o If P is 80% at fault, D is 20% at fault, $100 damages, what does P recover?
 $20
Modified comparative negligence
o Two approaches
 “not-as-great-as”
 “not greater than”
o What is the “not-as-great as” form?
 P may recover reduced damages if fault < D’s
o What is the “not greater than” form?
 P may recover reduced damages if fault is < D’s
o Combines contributory negligence and comparative negligence
 In some cases, P gets reduced damages
 In others, P is barred from recovery
o Key difference between the two approaches is the point at which P is barred
from recovery
 “not-as-great-as”
 P is barred when fault is equal to or greater than D’s
 “not greater than”
 P is barred when fault is greater than D’s
o Complications when more than one D is involved
o With whose fault is P’s fault compared, each D or the aggregate of Ds?
 Depends on the J
 Some compare P’s fault with fault of each D
 Others compare P’s fault with aggregate fault of Ds
 Which is better for P?
46





Latter approach because P has a better chance of having less
fault than the aggregate of D’s
Most states use latter approach, because its less harsh

Multiple Ds
o Courts take different approach if P only sues some of the actors responsible
for the harm
 Some statutes state P’s N can only be compared with Ds before the
court
 Some states require the jury to consider the relative fault of all parties,
whether before the court or no
 Some require absent actors to be named as parties if they want the
absentee’s conduct considered
o If P is 20% at fault, D1 is 30% at fault, and D2 is 50% at fault, $100 damages,
how much is D1 liable for?
 Under traditional rule, JSL applies
 D1 is liable for $80 (though only responsible for $30 harm)
 Most jurisdictions retain JSL among multiple Ds
 But some hold Ds severally liable
 Amount for which D is liable depends on jurisdiction
Contribution
o Under traditional rule, if JSL, contribution was on a pro rata basis
o If P is 20% at fault, D1 is 30% at fault, and D2 is 50% at fault, and D1 pays
the full $80 damages (out of $100 harm), how much can D1 seek in
contribution from D2 under traditional rule?
 D1 could get half ($40) from D2
 Even though D1 caused only $30 harm
 No consideration of relative degree of fault
o Today, some Js still apportion damages equally among the tortfeasors
(traditional rule)
o And some (including UCFA) apportion based on respective fault
 If D1 is 30% at fault, and D2 is 50% at fault, and D1 pays the full $80
(out of $100 harm) damages, how much can D1 seek in contribution
from D2 under UCFA?
 $50 (now D1 only pays the $30 he caused)
Different kinds of fault
o If D’s fault is worse than N – reckless or intentional wrongdoing – should
comparative negligence apply?
 Different views
o UCFA defines “fault” broadly, including N and recklessness
 BUT it excludes intentional torts
 States that aren’t precluded from comparison
o New Restatement of Torts allows apportionment to Intentional Tortfeasors
o Courts are inconsistent
 Some prohibit comparison between negligent and intentional conduct
 Some don’t
Comparative negligence
47
o When P’s or D’s misconduct is worse than N…various approaches
 If P is N and the D is reckless
 Traditional contributory negligence didn’t apply (claim wasn’t
barred)
 Most states with pure comparative negligence compare
conduct
o As a result comparative negligence makes Ps worse
off than old rule
 If P is reckless, D is N
 Traditional contributory negligence rules barred recovery
 In modified comparative negligence states, P loses
o P’s fault is effectively greater than D’s
 In pure comparative N states, P gets reduced damages
o When P’s conduct is criminal…varied responses
 Some Js prohibit any recover
 Others allow reduced damages
ASSUMPTION OF RISK
Express Assumption of Risk
 If P explicitly agrees with D, in advance of any harm, that he will not hold him liable
for certain harm, P has expressly assumed the risk of that harm. If there is no
“public policy” against the assumption of the risk involved, the agreement will be
enforced, and P may not recover.
o Requires that you know about the risk and voluntarily accepted it
 SUBJECTIVE KNOWLEDGE…WHAT P KNEW, NOT WHAT
HE SHOULD HAVE KNOW
o Essentially eliminates duty to P
 Factors in determining public policy concerning the validity of exculpatory
clauses…look to Tunkl factors:
 Suitable public reg (analyze other factors first)….yes
 Great importance/practical necessity…No
 Open to public…Yes
 Unequal bargaining power….yes
 Adhesion contract….yes
 Control of D…yes
o If D has greater bargaining power than P
R2 § 496B, comment j
 Does P have a reasonable alternative?
o If D provides a public service
o Open to the public…D holds itself as willing to perform the service for any
member of the public who seeks it
 Dalury v. S-K-I Ltd.
 Court held that skier’s assumption of risk via waiver does not
abrogate the ski area’s duty to warn of or correct foreseeable
dangers. Ski area invited both skiers and non-skiers and
they, rather than the invitees, had the resources foresee and
48
control hazards and guard against the negligence of its
employees.
o Risk was not one inherent to skiing
o Policy: if contract is enforced the incentive to protect
Ds will be lowered. We want these incentives to exist
because the employees are best to protect Ps.
o Public policy implicating a duty to protect against
risks for invitees overrules the AOR contract
o Increased costs (see policy argument below)
o MINORITY APPROACH: most courts uphold
exculpatory clauses for recreational activities



o Fine print
 Reasonable P would have notice
o Waivers do not include intentionally or willfully negligent misconduct
R2 § 496B, comment d
 Exculpatory contracts are limited to negligence
o Adhesion contract
o Whether P is under the control of defendant
Policy argument…Free market v. consumer protection
o Exculpatory agreements (increases prices) do not allow for Ps to consider the
possibility of cheaper contracts with higher risks
Intermediate
o Unilateral disclaimer must be brought to P’s attention
 i.e. parking lot disclaiming it is the owner’s risk to leave car
Effect of comparative negligence
o None. A valid contractual agreement bars recovery.
Implied Assumption of Risk
 P may be held to have assumed CERTAIN RISKS by his conduct
o SUBJECTIVE KNOWLEDGE…WHAT P KNEW, NOT WHAT HE
SHOULD HAVE KNOW
 Requirements for implied assumption
o Knowledge of risk in question
 Knowledge of the risk can be proved by circumstantial evidence
 There are some occasions in which P may consent to unknown risks
o Voluntarily consented to bear that risk herself
 The mere fact that P has deliberately exposed himself to the
negligence of others does NOT mean that she has consented to this
danger
 If P protests to submitting herself to a danger, but does so anyway, her
actions are said to be voluntary
 UNLESS she was assured that the danger does not really exist
 There is no assumption of risk if P is under duress and/or has no other
choice but to do so
 UNLESS there is a reasonable alternative
49



Where it is not D’s fault that P has really no other choice
except to expose herself to risk, this is not enough to vitiate the
voluntary nature of P’s act and the defense will apply
 Employee safety
 Workers compensation statutes usually eliminate this issue
 BUT where such a statute does not exist, most courts now
refuse to apply the assumption of risk doctrine on the grounds
that where the employee’s choice is between submitting
himself and getting fire, his choice is not voluntary
 Statutory violation by D
 Courts allow assumption of risk as a defense here when the
statute is found to have been intended principally for the
benefit of a class unable to protect itself (of which P is a
member) and the purpose of the statute would be defeated by
allowing the defense
o Murphy v. Steeplechase Amusement Co.
 Court held that because there was no negligence, and even if there
were, the dangers of amusement park ride were not obscured or
unobserved and the customer knowingly and voluntarily embraced
those risks inherent to the ride. Recovery is barred.
Limits of IAR…public policy
o Too risky…cant be barred from recovery
 Policy: free market notion is limited by consumer protection
Effect of comparative negligence
o Most courts and R3 say that implied assumption of risk is merged into, and
thus replaced by, comparative negligence
o HOWEVER, if D may so clearly and reasonably believe that P understands
the risks (and that P is voluntarily choosing to expose herself to those risks)
that this belief prevents D from being negligent at all
 Primary v. Secondary assumption of risk
 In situations where D simply never has any duty to P to avoid
risk because D reasonably believes that P understands that risk
and is voluntarily submitting to it, courts sometimes say that
the case involves primary assumption of risk, and that
primary assumption of risk is a complete barrier to recovery
even in a comparative negligence jurisdiction.
o Might as well be an express assumption of risk
 By contrast if D owes a duty of care to P but P knowingly
encounters a risk posed by D’s breach of duty, courts
sometimes call this secondary assumption of risk. These
courts then say that secondary assumption of risk is subsumed
into ordinary comparative negligence principles.

Elements of AOR
o Know facts of danger
o Know dangerous/nature and extent…full knowledge
50
o Voluntarily
 AOR IS A SUBJECTIVE TEST
 Kinds of AOR…affirmative defense (if all elements
established, then off the hook…burden of proof on D)
 EAR…attacks duty (technically affirmative defense)
o Duty to P waived by P
 IAR
o Primary…attacks duty (technically affirmative
defense)
 Inherent risks in the activity
 i.e. sports
 barred from recovery because it looks like there
is no duty
o Secondary…true affirmative defense
 P encounters D’s negligence
 D has a duty to P
 Risk is not inherent in the activity
 Really just asking if P acted
negligently in secondary assumption
of risk?...If no, then damages will not
be reduced
 You can always get damages in a pure
comparative negligence regime
 Davenport v. Cotton Hope…above and below
o P went down stairwell that he knew to be negligently
mainted. Court held that P is not barred from recovery
by the doctrine of assumption of risk UNLESS the
degree of fault arising therefrom is greater than the
negligence of D…express and primary implied
assumption of risk remain unaffected by our decision
 Here, we are in a modified comparative
negligence regime
o Future of AOR
 Suter suggests abolishing AOR
 EAR and IAR 1…no duty
 IAR 2…comparative negligence
 However, we can take any approaches on the exam
o Sometimes P’s decision to place herself in particular danger is reasonable.
In that event, P’s conduct will simply not be negligent at all, and her recovery
will not be reduced even in a comparative negligence jurisdiction
 If unreasonable, P’s recovery will be reduced
 Danger was caused by D
o Danger from other participants…i.e. sports
 Where the activity is an active sport, one participant owes a duty of
care to the other only if the one intentionally injures the other and
51
engages in conduct so reckless as to be totally outside the range of the
ordinary activity involved in the sport
 Knight v. Jewett
 Negligent injury in sports provides no duty on the basis of
policy
o Inherent danger
 Flood of litigation
o Vigorous activity
o Assessing negligence is difficult
 Minority
o No bar
o Danger of spectators…sports spectators
 Spectators are not allowed to sue for negligence
 Policy
o alter the experience
o in order to protect
 high B…costs would go up if
 low P
 low L
 Even if it is a foreign tourist because D would reasonably assume
that P knowingly and voluntarily assumed the risk of being at the
event
________________________________________________________________________
INTENTIONAL TORTS
INTENT
General Principle
 Intent must at least bring about some sort of physical or mental effect upon another
person, but does not need to include a desire to “harm” that person
o DUTY IS NOT AN ISSUE IN INTENTIONAL TORTS AND SL
 Applies to negligence
Intent to commit a different tort….TRANSFERRED INTENT
 R2 § 18(1): a person who intends to commit one intentional tort and in fact
commits another is liable for the tort actually committed, apparently applies no
matter which kinds of torts are involved
Substantial Certainty
 an occurrence is obviously “intentional” if an actor desires to bring it about. But tort
law also calls it intentional if the actor didn’t desire it, but knew with substantial
certainty that it would occur as a result of his action
 most people would know with substantial certainty, therefore I can infer that D acted
this way
o Garratt v. Dailey
52


Five year old pulls out chair and causes injury to P trying to sit. On
remand, court found the Brian knew with substantial certainty that P
was trying to sit when he pulled the chair away and would thus
therefore make harmful contact with the ground, and that there was
therefore the intentional tort of battery.
If you are on notice that an act will cause an intentional tort (i.e. knowledge of
sensitivity, even if it is unreasonable), then you are substantially certain and thus
liable for that intentional tort
o Restatement is agnostic about knowledge
o Approach focusing on autonomy considers this notice/knowledge
Less than substantial certainty
 But if it is no “substantially certain” that the invasion of P’s interest in his person will
occur, but merely highly likely, the act is NOT an intentional tort. This is true even
though it may be “reckless,” and may give rise to liability for negligence.
Act distinguished from consequences
 But while the “act” must be intentional or substantially certain, as distinguished from
highly probable, this is not true for the consequences of the act.
Transferred intent
 In all kinds of intentional torts, the doctrine of transferred intent applies. This
doctrine holds that as long as D held the necessary intent with respect to one person,
he will be held to have committed an intentional tort against any other person who
happens to be injured.
o The person who actually experienced the tort can recover, not the person that
was intended to experience the result
 “transferred intent” also applies if the tort that occurs is different from the one
that was intended
Proximate Cause
 courts are more lenient then in negligence cases because of bad intent
 however, liability is still limited to a point
o considers likelihood
 the more morally wrong your intent is, the more willing we are to extend
proximate cause and thus liability
SCOPE OF LIABILITY
 While negligent Ds will generally be held liable only for those consequences
which were at least somewhat foreseeable, the intentional tortfeasor will be liable
for virtually every result stemming directly or even somewhat indirectly from
his conduct, however unlikely it might have seemed at the time of his act
o Compare
 Emotional eggshell
 Negligent infliction of emotional distress…out of luck
 Assault and battery….maybe if there is notice
53

Physical eggshell
 Negligence…P can recover
 Intentional…P can recover
BATTERY
R2 § 13, 18
1. Intentionally
R2 § 13, comment c
o Intent OR
o substantial certainty of contact
 Garratt v. Dailey
 Five year old pulls out chair and causes injury to P trying to sit.
On remand, court found that Brian knew with substantial
certainty that P was trying to sit when he pulled the chair away
and would thus therefore make harmful contact with the
ground. Therefore, the intentional tort of battery exists.
 Actual intent
 Evidence that D knew that contact would substantially occur
 Constructive intent
 No direct evidence, but D was a substantially certain that
contact would occur
 Subjective test
 D must be substantially certain…not an objective standard
o If D intends to commit an assault and makes harmful or offensive contact he
has committed battery
o Transferred intent applies
o D must intend some sort of bad thing
 Intent to commit to harmful content
 Intent to commit offensive contact
 Intent to commit another intentional tort
2. Causing
3. A harmful, offensive, or unconsented to
o Harmful…bodily harm
o Offensive…damaging to a reasonable sense of dignity
 Reasonable sense of dignity evolves with social harms
19, comment a
 Wishnatsky v. Huey
 P paralegal intruded into attorney meeting and was pushed out
by D. Court held that D’s response to P’s intrusion into his
private conversation may have been rude but not offensive
(contact) to a reasonable sense of personal dignity.
Therefore, D is not liable for battery to P.
o Unconsented to…unwanted touching
 “Unconsented to” will be hard found to prove an intentional tort
UNLESS P has given notice that contact is not consented to
54

If you are on notice that an act will cause an intentional tort (i.e.
knowledge of sensitivity), then you are substantially certain and
thus liable for that intentional tort (even if it is unreasonable)
o Restatement is agnostic about knowledge
o Approach focusing on autonomy considers this
notice/knowledge
o Implied consent to touching…limits battery claims
 Ordinary interactions that involve some touching will not prove
actionable for battery
o i.e. going up a tight stairwell, crowded subway station, etc.
4. Bodily contact
(“touching”…either touched by the batterer OR touching the
ground, etc.)
o Contact
 Extends to personal effects
R2 § 18, comment c
 Picard v. Barry Pontiac-Buick, Inc.
o Court held that hitting the camera someone was holding
constituted a battery
 Indirect contact
R2 § 18, comment c
 Garratt v. Dailey
o Court held that a 5-year-old that moved a chair that P
was about to sit on is liable for battery when she is
injured by hitting the ground
 i.e. sending your dog after someone; shooting someone
 P does not have to be aware of contact
R2 § 18, Ill. 2



Policy interests
o P’s personal autonomy is protected
o Bodily integrity
o privacy
D is liable for any consequences which ensue, even though unintended and
unforeseeable
R2 § 16, Ill. 2
Damages
o Nominal damages
 Can get these without actual harm
 In negligence, actual harm is needed for damages
o Compensation for mental disturbance
o If D’s conduct is particularly outrageous…punitive damages
Restatement definition
 Battery: Offensive Contact
18
(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such contact, and
(b) an offensive contact with the person of the other directly or indirectly results
(2) An act which is not done with the intention in Subsection (1, a) does not make the
actor liable to the other for mere offensive contact with the other’s person although
55
the act involves an unreasonable risk of inflicting it and, therefore, would be
negligent or reckless if the risk threatened bodily harm

Offensive contact
19, comment a
o In order that a contact be offensive to a reasonable sense of personal dignity, it
must be one which would offend the ordinary person and as such one not
unduly sensitive as to his personal dignity. It must, therefore, be a contact
which is unwarranted by the social usages prevalent at the time and place at
which it is inflicted.
ASSAULT
R2 § 21
1. Intentionally
o D must have either intended (or was substantially certain) to cause the
reasonable apprehension of contact or have intended to cause the contact
itself
R2 § 21(1)(a) and (b)
o No hostility required
R2 § 34
o Transferred intent applies
R2 § 33
2. Causing
3. A reasonable apprehension
o Issue of “reasonable” apprehension
 Reasonable…objective
 Apprehension…subjective
 MAJORITY…reasonable apprehension
 Picard v. Barry Pontiac-Buick, Inc.
o Court held that waving finger in menacing manner
constituted assault
 Unreasonable apprehension is usually not actionable
 MINORITY…does not have to be reasonable if the person
committing the assault knows the victim is a emotional eggshell
plaintiff
 R2 § 27 provides if D intends to put P in apprehension of
immediate bodily contact and succeeds in doing so, there is an
assault “although the act would not have put a person of
ordinary courage in such apprehension”
o Mere words alone are usually not sufficient to constitute an assault, unless
acts or the circumstances intensify them
R2 § 31
o Harm being threatened must be imminent
 Threats of future harm cannot constitute assaults
R2 §
29, comment c
 D must have the present ability to commit the harm R2 § 29,
comment b
 D must have the ability to carry out the threat R2 § 33
o P must be aware of the threatened contact
o Apprehension is not the same as fear
R2 § 24, Ill. 1
 It concerns an imminent attack, whether P fears it is irrelevant
o Threat to third persons not actionable
R2 § 26
56
o No assault for conditional threat in which D legally has the right to compel P
to perform act in question and threatens reasonable force as a result if not
complied with
R2 § 30 Ill. 1 and 2
 Courts are moving to say that conditional threats are actionable for
assault if they are committed by those without lawful authority to do
so
4. Of harmful or offensive contact


Policy
o P’s interest in freedom is protected
o P’s mental tranquility is protected
o Limiting apprehension to a reasonable nature
 Problems of fraud
 Establishing a baseline level of emotional well-being
o Limiting to imminent harm
 Limiting assault
Damages
o Nominal damages
 Used to recognize intentional torts when the cause minimal or not
damages
 One exception where P can recover without suffering
damages
o Mental suffering
o Punitive damages
 There must be a high level of malice…high level of bad intent
 Intentional torts do not always reach a high enough level of damages
to recover on punitive damages
FALSE IMPRISIONMENT
1. Intend
o Actual/legal
o Transferred intent applies
2. Unlawful restraint
o Space must be confined
o Against personal sense of dignity
 Restatement…ways in which confinement can lead to FI
38-41
1. Actual or apparent physical barriers
2. Overpowering physical force, or by submission to physical force
3. Threats of physical force
 Cannot use future threats…must be imminent
o Except for maybe immediate harm to family member
4. Other duress
 Unlawful coercion
o i.e. holding someone’s purse as collateral
 Cannot just be moral pressure and threat to reputation
 Cannot be an economic threat
57
o i.e. getting fired
5. Asserting false legal authority

Lopez v. Winchell’s Donut House
 Ds called P into donut shop back room to confront her about
stealing. Ds used no physical force, did not keep her against
her will, and did not admit using unlawful restraint. Therefore,
judgment upheld, no FI.
3. Actual submission necessary
o R2 § 42: P must be aware of confinement OR he must suffer some type of
harm



Means of escape
o It is irrelevant that there is a means of escape from the area of confinement,
provided that P does not know the means
R2 § 36(2)
 Means must be reasonable
R2 § 36, comment a
Means by which confinement is enforced
o Obvious means of physical confinement…FI
o Use of threats
 Implicit or explicit threats to use force if P attempts to escape…FI
R2 § 40
 Purely verbal commands…NO FI
o Threat to harm others if P attempts to escape
R2 § 40A
o Threat to property may also constitute the necessary duress
o Threats of future (false) imprisonment…NO FI
 Harm must be imminent
o Assertion of legal authority
 If D does not have legal authority, or does and P reasonably believes
that she does not, this is false imprisonment
R2 § 41
 Irrelevant whether the asserted legal authority is in fact
valid…what matters is if the plaintiff does not reasonably
believe the whether D has such legal authority…FI, if P
submits
 Defense of valid arrest exists for D if authority is legitimate
though
o P’s desire to clear himself
 If P’s confinement is due solely to his own desire to clear himself of
suspicion…NO FI
 Even if detention of suspected shifted is not voluntary, the
detention may be privileged if it is brief and the store’s
suspicion is reasonable
Instigation in arrest
o If a private citizen participates in an arrest which turns out to have been
unlawful, she may be liable for false imprisonment even though she was not
the one who ultimately made the arrest itself
 i.e. using a private detective
58




will not be held for FI for mere filing of a complaint
BUT, if D helps police arrest P and they do not follow procedure, D
may be liable for FI
o Two requirements
R2 § 45A
1. Unlawful arrest occurred
2. D must have actively aided in the arrest
o Persuaded authorities to make arrest rather than just providing
information
Duty to escape
o May be FI if D is under a duty to release P, or to help him escape, and does
not do so
R2 § 45
o Whittaker v. Sandford
 Court that D committed FI by induced P to sail with him to American
on the premise of letting her go when they get there. However, D
refuses to provide row boat to get to land when they get there.
Damages
o Nominal damages for false imprisonment, even if no physical harm was
suffered
o He may also recover for mental suffering, humiliation, loss of time,
inconvenience, etc. and where actual malice is shown, he may recover
punitive damages
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
 Extreme or outrageous behavior causes emotional distress
 Not all IIED cases overlap with assault, battery, or false imprisonment
1. Intentional or reckless
o P may recover if he can show that D either intended to cause emotional
distress, knew with substantial certainty that it would occur, or acted
recklessly (i.e. acted in a deliberate disregard of a high probability that
distress would occur)
R2 § 46
 Or if he is substantially certain IIED will occur
46, comment i
 Reckless
R3
1. Person knows the risk of harm created by his conduct, or
knows facts that make that risk obvious to anyone in the
actor’s situation; and
2. The precaution that would eliminate or reduce that risk
involves burdens that are so slight relative to the magnitude
of the risk as to render highly blameworthy the actor’s failure
to adopt the precaution
 Womack v. Eldrige
 D was working for attorney and tricked P into taking a
picture for her to give to attorney for child molestation
case. P claimed to have experienced severe emotional
distress because of D’s deceit in obtaining the
photograph and potential damages to his reputation.
59
Court found that a reasonable person would or should
have recognized the likelihood of the serious mental
distress that would be caused in involving an innocent
percent in child molestation cases. Court held D liable
for IIED.
 She knows the ramifications of this photograph
because she has be doing this kind of thing for
years
 Deceit is not necessary for IIED but augments
the claim
 Transferred intent is not generally applicable in cases of intentional
infliction of mental distress
o Rationale: would open litigation floodgates
o Exception
 If D directs conduct at member of immediate family of P, and
P is present, and D knows P is present (extra element)
o Restatement extends the category of persons who can recover for
conduct which they witnessed being directed at others
 Any person who is present at a beating, attack, threat, etc.
made to another may recover if he suffers “bodily harm”
 i.e. even if it just causes him to become physically ill
 If witnesses is a member of victim’s immediate family, he may
recover for his purely emotional distress even if he suffers no
bodily harm
R2 § 46
 If D attempts some other tort, and the only effect on P is emotional
distress, the tort of intentional infliction of emotional distress has not
occurred
R2 § 47
o Keep in mind...If D attempts to commit another intentional tort and P
suffers emotional distress in the form of “an apprehension of imminent
harmful or offensive contact,” the tort of assault has occurred, and P
can recover for his mental suffering. Similarly, if P has mental distress
as a result of a battery, he can recover damages for this distress, even
though the separate tort of infliction of mental distress has not
occurred.
2. Extreme and outrageous conduct (or outrageous or intolerable)
o For P to recover, he must show that D’s conduct was extreme and
outrageous
 Policy: limiting frivolous suits
o R2 § 46, comment d
 “so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community. Generally, the case is one
in which the recitation of the facts to an average member of the
community would arose his resentment against the actor, and lad him
to exclaim, ‘Outrageous!’
o court will take into account individual circumstances of the case
60

Plaintiff’s situation
 Abusive position of power
o i.e. threatening bill collectors
 D taking advantage of his awareness of a particular
characteristic of P that would make the conduct outrageous to
him
R2 § 46, comment f
 Repeated and continuous acts that make non-extreme conduct
extreme
 Committing physical acts of violence
 Threatening economic or property harm
o The two above are different from assault and FI
o Examples
 DO NOT COUNT
 Questioning employee about theft in reasonable manner
 Given HIV positive roommate without disclosure
 Wife had an abortion and did not tell husband
 D failed to pay alimony
3. Causes
4. SEVERE emotional distress
o P must in fact suffer severe emotional distress
R2 § 46, comment j
 Policy: limiting frivolous suits
 P must at least seek medical aid
 Some courts require physical harm
 Restatement
R2 § 46, comment k
 Does not require physical harm, but physical harm serves
as good evidence
 Reasonable person would have suffered such distress
 However, reasonable person standard does not apply where D
has notice that P is unusually sensitive (eggshell)
o Notice has to be personally specific
 Insulting words will almost never be actionable under
intentional infliction of emotional distress
o Rationale: not outrageous; do not cause severe
emotional distress
o However, notice exception applies here as well
 Public utility and common carrier liability
o Held to a stricter standard of conduct
o Employee of a utility or carrier may be liable for IIED for using highly
insulting language to a customer
R2 § 48
 Also applies to hotels
R2 § 48, comment a
o Rationale: based on duty to treat public at large with courtesy
R2 § 48
DEFENSES TO INTENTIONAL TORTS
CONSENT
61







D will not be liable if P consented to intentional interference with his person or
property
It is part of P’s prima facie case to show that he did not consent
Consent is embodied by assumption of risk in negligence and SL cases
Implied consent
o May be implied from P by conduct, custom, or circumstances
o Objective manifestations are taken into account rather than P’s subjective
state of mind
 Whether a reasonable person in the position of D would believe that P
had consented to the invasion of interests
o If P subjectively consents, and there is some way to prove this, the consent
will be effective even though it was never manifested to D
o If D can show it is custom for P to consent, no objective manifestation must
be show
R2 § 167, Illus. 3
o P’s inaction may provide consent
Lack of capacity to consent
o There are cases where P is incapable of giving consent, and anything looking
like an objective manifestation of consent should not be viewed as such
 i.e. children, intoxicated, unconscious, etc.
o Exception…patient’s consent will be implied as a “matter of law” if ALL
of the following factors exist
1. Incapacitation
2. Emergency
3. Lack of consent not indicated
4. Reasonable person
o Consent by relative
 Minor
 Minor approaching the age of majority may not need consent
 Court order
 Overrules parents not consenting for child’s medical care under
dire circumstances
o If procedure would only aide child’s comfort the court’s
are split
 Is substituted consent allowed where no emergency exists?
Exceeding scope of consent
o If P gives consent to invasion of his interests, D will not be privileged if she
goes substantially beyond the scope of consent
o Consent to act, not consequences
o Surgery
Consent due to mistake
o If P’s consent would not have been given except for the fact that he is
mistaken about some material aspect of the transaction, such a mistake is
generally NOT by itself to make the consent ineffective
o Mistake known or induced (as by lying) by D…P’s consent would be
ineffective
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


Even where D induces P’s mistaken consent, that consent will only be
ineffective if the mistake is related to some essential aspect of this
transaction. That is the mistake must relate to an aspect of the
invasion that makes it harmful or offensive, not to some collateral
matter that induces consent.
o Medical cases
 Situations involving inadequate information
 Active misrepresentation or failure to disclose definite
consequences…consent ineffective
 Non-disclosure
 Failure to mention risks of consequences is negligence
Duress
o If P consents under duress, effectiveness of consent will depend on the
immediacy and seriousness of the duress
o Immediate duress
 Threat of force…consent ineffective
 Against P, his family, or his property
 False assertion of legal authority…consent ineffective
 Threats of future or economic harm…consent effective
Consent to criminal acts
o Majority rule
 Courts generally hold P’s consent is ineffective if the act is to consent
to a crime…consent is no defense
 Policy:
o Deterrence
o How autonomous was the decision?
 Coercion
 Duress
 Lack of capacity
o Still, we have to consider whether the decision was
illegal?
 Like Murphy
 Minority rule
 Some states and R2 hold P’s consent to D’s criminal act as
always effective where a breach of the peace is
involved…consent is a defense
o Policy
 Autonomy
 no man should profit from his own wrongdoing
o Hart v. Geysel
 P’s estate suing D for P’s death in illegal prize
fight. Court held the because P consented and
there was no excessive force, his estate shall not
recover. Also, to do so would allow him to
profit off of his own wrongdoing.
 Majority (P)
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

o Anger fights
o Consent is not a defense
 Policy: deterrence
Minority (D)
o Consent is a defense, even if it is
illegal
 Policy: autonomy
Rule
o Consent is a defense in a prize
fight
 In a prize fight, rather
than an anger fight, you
have given the fighting
much more
thought…actual consent
o Certain class protected
 Where legislature’s purpose in making D’s conduct a crime is to
protect a class of persons against their own poor judgment, and P
is a member of that class, his consent will generally be ineffective
 Applies to statutory rape
SELF-DEFENSE
 Privilege of self-defense
 Harmful or offensive bodily contact and any threatened confinement or imprisonment
may be defended against
o Whether threat is intentional or negligent
 D bears burden of proving that privilege existed
 Self-defense may be used not only when there is a real threat of harm, but also where
D reasonably and honestly believes that there is one
o Subjective and objective…you have to actually believe it and it must be
reasonable (in light of the surrounding circumstances known to the
defendant)to do so
 Possible alternative tests
 Correctly believe?
 Did plaintiff unreasonably create this belief in the plaintiff?
o Minority view
o Courvoisier v. Raymond
 D mistakenly shot P (a cop) during a riot in front of his bar. Court
held that the riotous circumstances and P’s failure to properly identify
himself provide sufficient evidence to justify act as self-defense. D
can be excused for shooting an innocent person during a riot if he
reasonably believed them to pose a threat.
 D may only use force for protection…limits
o No opportunity for retaliation
o D may also not continue to use force after disarming adversary
o Mere words do not merit any kind of forceful response
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



o Harm must be imminent, not future, to employ self-defense
 We want to encourage police intervention
only the degree of force necessary to prevent harm may be used
o proportionality
 use of non-proportional force entitles one to reduced damages
D may only use deadly for if he himself is in danger of death or serious bodily
harm
o Violent felonies are sufficient
o Rape or sodomy are sufficiently serious
Duty to retreat
o Restatement view
 Duty to retreat safely NOT IMPOSED when using only nondeadly force
63(2)
 Policy: Right to defend oneself
 Duty to retreat safely IMPOSED when using deadly force 65(2)
 Unless it occurs in one’s home
o Homeowner can often use deadly force even if the
attack isn’t directed at him but is in the prevention of a
felony
Injury to third person
o Self-defense is usually privileged as long as D did not act negligently
DEFENSE OF THIRD PERSONS
 Correctly or reasonably believe
o Mistakes go to the plaintiff’s benefit
 Creates some disincentives
o No retaliation; harm is imminent, etc.
DEFENSE OF PROPERTY
 Privilege to defend property (both land and chattels) on essentially the same basis to
defend oneself
o Reasonable force
o Verbal demand prior to using force
 Mistake
o Reasonable mistake is privileged when there is a real non-privileged intrusion
 Reasonable belief, based on plaintiff’s intent or negligence in creating
the belief
o Reasonable mistake is NOT privileged when the perceived non-privileged
intrusion is in fact privileged
R2 § 77(a)
 Deadly force
o It can be used to prevent certain felonies involving serious bodily harm or the
breaking and entering of a dwelling place
(among other violent felonies
or those felonies punishable by death)
R2 § 143(2)
 Deadly force can only be used in situations of physical, not
property, risk
65
o Homeowner may use deadly force against a burglar if he thinks that that is the
only thing that will keep him out of his dwelling place
 Not applicable to trespassers…may only use reasonable, nondeadly force to eject them from property
o Posner’s reasonableness test
 Value of property at stake measured against loss of human
life/limb
 Protection of property can at times be worth more than life
o i.e. vaccines, nuclear material
 Existence of legal remedy alternative of this use of force
 Location of property in terms of difficulty of protecting it by other
means
 Kind of warning given
 Deadlines of the device used
 Character of the conflicting activities
 Cost of avoiding interference by other means
 Are spring guns ever reasonable?
o Expulsion
 If situation is one where the property owner may not use deadly force
against the intruder, she may furthermore not eject the intruder if this
is likely to cause him serious injury
o Mechanical devices
 Use of such devices is privileged only if owner would be privileged to
use a similar degree of force if he were present and acting himself
 Right to use particular device will be considered in light of the
particular intruder injured
 Spring guns
 Not consistent among Js
 Spring guns cannot reasonably decipher the amount of force to
be reasonably used against intruder
 Katko v. Briney
 D’s trap spring gun shot P in leg when he broke into P’s
unoccupied farmhouse to steal valuables. Court held that D is
liable because he can only use deadly force when the other
is committing a felony of violence or endangering human
life by his act. And what D cannot do, he may not direct do
through mechanical device.
o Deadly force can only be used in defending your
person, not your property…disproportionate use of
force
 Force is not reasonable, intent is there
 Policy: people may be to willing to harm
o P brought it under battery
 Emphasizes wrongfulness that will ideally lead
to punitive damages
66
o Could maybe bring it under negligence…cant willfully
harm trespasser
o Dissent
 D’s intent
 Wanted to scare, warn, deter…not harm
o However, difficult argument to
make…rigged gun hidden behind
boarded window and also there
was no warning signs
 In essence there is a no spring gun rule
in IA
 Concerned with grant of punitive
damages
o He was engaged in a crime

Warning
 Warning makes the situation about deterring rather than
retaliation
o Less likely that D actually intended the harm
 Intent is the most important question here
 Are we trying to hurt or deter?
 Is it a deadly trap or a form of
deterring?
o Force used must be proportional
 Barbed wire, glass on doors usually ok
 Guard dogs are often times not ok because they
appear to much like a trap
 In the case of non-deadly mechanical devices, signs warning
about the existence are necessary unless its use is so common
it is reasonable for intruder to assume its presence
R2 § 84
 Assuming its privileged, no sign is needed to warn of
mechanical device using deadly force
R2 § 85
o However, even if a warning is placed, it will not bar
liability
NECESSITY
 Usually deals with interference with property
 D is privileged to harm the property interest of P where it is necessary to do so in
order to prevent greater harm to third persons or to D herself
o Public necessity…protecting interests of others
o Private necessity…protecting own interests
 D has to pay for damages in cases of private necessity, BUT not in
cases of public necessity
 Public necessity
o Complete privilege… D is not liable for damages when acting in public
necessity
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
 Rationale: do not want to deter service to public interest
o Act by private actor or public official on behalf of the community
o May apply to injury of one’s person if case is sufficiently compelling
o Elements
1. Reasonable belief
2. Serious, imminent public threat
 I.e. saving vaccine
3. Reasonable means…lesser risk that you are imposing
 Risk averted > risk caused
Private necessity
o Incomplete privilege…if protecting self or third party actor (not
landowner whose land you harmed…then complete privilege)
 You gain a right to trespass (cannot be expelled without damages
paid by landowner), but you must pay damages (if any) that
resulted from the trespass
o Complete…if protecting landowner (whose land you harmed)
o Elements
1. Reasonable belief
2. Serious, imminent harm to one’s person or property, or person or
property of a third person
3. Reasonable means…lesser risk that you are imposing
 Risk averted > risk caused
o Ploof v. Putnam
 P moored ship to private island. D had servant cut it loose. Court held
for damages to P
 In situations of necessity there is a right to trespass
 D loses his defense of property in situations of necessity
o D cannot expel
 D is liable for damages to P’s property if he chooses to
expel anyway
o Any person is privileged to prevent injury to himself or his property, or
to the person or property of a third person, by injuring private property ,
if there is no less-damaging way of preventing harm
 Private property, not life
 If injury prevented was caused by P, then he is liable for the
intentional tort
o In determining whether the privilege exists in a particular case, the harm to
P’s property interest must be weighed against the severity and likelihood of
the danger that D seeks to avoid
o If D causes actual damage to P, private necessity provides only limited
privilege, D has the right to interfere with P’s property rights, but she must
pay for the damage she causes P
R2 § 263
 Vincent v. Lake Erie
 D, out of necessity, moors his boat to P’s dock during rough
storm and the dock suffers damages. Court held that D had the
right to use dock, but that P must compensate D because his
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tort was an intentional one (trespass) and the source of danger
was not an object belonging to P. Defense alleviates
possibility of punitive damages and gains a right to trespass to
save his boat.
o Negligence approach
 B (costs of damages to boat when from moving
the boat) > PL (cost of damage to dock)
 Take the costs
o Intentional tort (trespass) approach
 Private necessity defense
o Strict liability approach
o However, where privilege exists, the person whose property is being harmed
has no right to use reasonable force to defeat the exercise of privilege, and is
liable for any damages he causes by using such force
________________________________________________________________________
STRICT LIABILITY


Shows shift in tort law…focuses on cases in terms of social utility then the
individual parties
those who engage in certain activities do so at their own peril
o this is because society has determined that it is easier form them to bear costs
than P
ANIMALS
 trespassing animals
o America – cattle/crops
 Who’s the best risk avoider?
 In that location of the country, are cattle or crops more profitable?
 Who is more able to put a fence up around their property to
protect from trespassers or protect from release of animals
 non-trespassing animals (i.e. animals causing personal injury, etc.)
o SL exists for harm done by dangerous animals kept by D
 Wild are animals are considered dangerous…SL
R2 §
507
 A domesticated species is one which “is by custom devoted to
the service of mankind”
 Domestic animals are generally not considered dangerous
 UNLESS D knows that they have dangerous propensities
(greater than normal)


Focus on animals that are not naturally there
Sometimes zoo/circus exception
ABNORMALLY DANGEROUS ACTIVITIES
69
Historical Development
 Developed out of Rylands v. Fletcher (England)
 Rylands v. Fletcher
o D (Rylands) hired independent contractor to contract a reservoir. Water broke
through abandoned mine shafts on property and owned by Ps (Fletcher). D
did not know of mine shafts and thus could not be held negligent.
 Trespass on land
o Exchequer Chamber…Fletcher
 Court held that there was liability because anyone who brings
something likely to do mischief onto the land for his own purposes
must keep it in at his peril, and if he fails to do so he will be held
strictly liable
 Strict liability…no fault needed
 Rationale:
o Actively brought about a non-natural object that acts in
a way that causes a risk if it is not maintained (or it
escapes)
 SL v. AL
 Neighbors (SL) v. highway (N)….different from landowner
v. landowner
o Equity of risk creation
o Assumption of risk
o House of Lords (higher court)…Rylands
 Court affirmed liability but held that it existed because Ds pit their
land to a “non-natural use for the purpose of introducing onto it that
which in its natural condition was not in or upon it?”
 Test
o Non-natural USE
 Second restatement focused on activities
 Depends on custom

American Development of SL
o Less apt to use SL in hopes to further innovation/business development

Sullivan v. Dunham
o D land owner used dynamite and wood flew out and hit and killed P 400 feet
away. Court held that D was liable because “the safety of travelers upon the
public highway is more important to the state than the improvement of
one piece of property, by a special method, is to is owner.”
 Trespass on person

Restatement 1st…ultra hazardous
o risk of serious harm
o can’t eliminate due care
o uncommon usage
70





Restatement 2nd...abnormally dangerous activities
o No definition
o 6 factors
proximate cause limitation
o you are liable if you cause the harm that makes the activity abnormally
dangerous
 must be within the scope of the risk
 i.e. if you use dynamite and hit man walking…SL
 if you use dynamite and cause minks to eat their young…NO
SL
R2 § 519…SL in cases of abnormally dangerous activities (basically codified
Rylands)
Factors (do not need all) determining if activity is abnormally dangerous
R2 § 520
o High degree of risk
o Risk of serious harm
o Cannot be eliminated even by due care
 Cannot be carried out, even with reasonable care
 Reasonable care does not have eliminate risk, but it must be able
to lower for such a substantial level
o Not a matter of usage (custom)
o Appropriateness (of placing)
o Value (to community)
 Not dispositive
Third Restatement
1. Activity creates a foreseeable and highly significant risk of physical harm
even when reasonable care is exercised by all actors AND
2. The activity is not a matter of common usage






Highly foreseeable
Significant risk
o Physical harm
Even with care
BUT: location and value to the community is relevant
Some contexts
o Use and storage of explosives
o Crop dusting
o Airplane accidents
 NOT in air accidents, SOMETIMES on ground accidents
o Toxic chemicals and flammable liquids
o Nuclear reactor
Incentives and economic analysis
o One of the main purpose of our tort law system is to produce economic
efficiency. That is, where an activity may injure others, we want to produce
the “right” amount of it, by neither under-deterring or over-deterring it. The
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general regime of negligence in theory does this: if people are liable for
damages stemming from their “negligence,” and if we define “negligence” by
balancing the costs and benefits of the defendant’s conduct, then Ds will
engage in a “right” or “economically efficient” amount of dangerous activity.
One corollary is that strict liability will normally “over-deter,” and
should therefore be imposed only where a negligence scheme will not be
sufficient to produce the “right” amount of the activity. This is true even
though there may be some irreducible danger from the activity.
o Indiana Harbor R.R. Co. v. American Cyanamid Co.
 D manufactures 20,000 gallons of acrylonitrile and sends it to P via X
Railroad. When car is in P’s railroad, the liquid leaks and causes P
nearly $1 million in damages. P sues D, arguing that even if D
exercised reasonable care in maintaining the rail car and putting the
chemical into it, D should be strictly liable because the chemical by its
nature is ultra hazardous.
 Court held for D. “We have been given no reason…for believing that
a N regime is not perfectly adequate to remedy and deter, at reasonable
cost, the accidental spillage of ACR from rail cars…” Even though
toxic/flammable, a substance will not leak from a properly
maintained rail car. Therefore, the accident here was caused by
carelessness (whose carelessness is unclear). Since, this type of
incident can be completely eliminated by the use of due care on the
part of all concern, there is no reason to make rail transport of the
chemical more expensive by imposing SL on party, the
shipper/manufacturer. While P claims that it is unduly dangerous to
ship toxic or flammable materials through a congested metropolitan
area, most RR hubs involve hubs that are in metropolitan areas, and
routing such cargo around metro area would be prohibitively
expensive and might involve other risks (e.g. the use of poorer tracks).
The emphasis is and should be on “picking a liability regime (N or
SL) that will control the particular class of accident most
effectively, rather than on finding the deepest pocket and placing
liability there.” For this type of activity, that liability regime is
negligence.
 6 factors
o probability that harm is great
 no
o magnitude of harm is great
 yes
o can’t prevent risk with due care
 Posner focuses on this
 could have reduced risk with due care
o not common use
 no
o inappropriate to locale
72
 no
o hazardous activities > value to the community
 no
 in spite of the hazards, transporting provides
jobs to the community
 All these factors make SL feel more like negligence



WE ARE FOCUSING ON THE ACTIVITY NOT THE SPECIFIC ACT
 Negligence focuses on the specific act
Spectrum
 Absolute liability…R1…R3…R2…N
 Focus on R2 for exam
Limitations on Strict Liability
o Proximate cause limitations
o Scope of risk: generally there will be SL only for damage which result from
the kind of risk that made the activity abnormally dangerous
 D will not be liable for his abnormally dangerous activities if the harm
would not have occurred except for the fact that P conducts an
“abnormally sensitive” activity
o Plaintiff’s negligence
 Knowing, voluntary, and unreasonable assumption of risk and also
reasonable assumption of risk bar P’s recovery
 P’s comparative negligence will reduce recovery
Theoretical Perspectives on Strict Liability (from the casebook)
 Enterprise Liability (Rabin)
o Enterprise should bear the risk of accidents it produces because:
 An enterprise has superior risk-bearing capacity compared to victims
who would otherwise bear the costs of accidents; AND
 An enterprise is generally better placed to respond to the safety
incentives created by liability rules than is the party suffering harm
o Sic utere tuo… “use your property so as not to injure another’s property”
 Goals-Oriented Approach to SL for Abnormally Dangerous Activities (King)
o loss-spreading
 evolution of SL from the deterrent goals central under fault-based
liability to the direction of loss-spreading
o loss avoidance (risk reduction)….deterrence
 less weight is given to loss avoidance than to loss-spreading
 problems:
o contradictory
o efficaciousness
o over-deterrence
 has the potential to inhibit economic development
o administrative efficiency
73



may diminish micro-costs because one does not have to prove
negligence in court, but may increase macro-costs because more SL
cases will appear in court
o fairness
 principle of reciprocity
o protection of individual autonomy
moral theories
o the general principle is that a victim has a right to recover for injuries caused
by a risk greater in degree and different in order from those created by the
victim and imposed on D – in short, for injuries resulting from nonreciprocal
risks
o the current tort system allows for distributive justice, thus violating the
premise of corrective justice, namely that liability should turn on what D has
done, rather than who is (wealthy)
o collaborative enterprise…N v. dominance-collaborative…SL
o personal autonomy
 founded on the concept of corrective justice: that is upon the notion
that when one man harms another the victim has a moral right to
demand, and the injurer a moral duty to pay to him, compensation for
the harm
Economic Analysis of Law (Posner)
o Judicial inability to determine optimal activity levels except in simple cases is
potentially a serious shortcoming of a negligence system
o Through the concept of ultrahazardous activities, tort law imposes strict
liability on activities that involve a high degree of danger that cannot feasibly
be prevented by the actor’s being careful or potential victims’ altering their
behavior
o New activities tend to be dangerous because there is little experience with
their safety characteristic, hence the best method of accident control may be to
cut back on the scale of the activity – to slow its spread while more is learned
about conducting it safely
o SL trials are cheaper than N trial because there is one less issue, N
 If SL is imposed on some activity it has the potential to lessen
claims if the accident costs exceed the costs of avoiding them
through changing activity; however, if SL is imposed on some
activity it also has the potential to increase claims if the accident
costs are less than the cots of avoiding them through changing
activity
o All sides agree that the tort system is a very costly method of providing
insurance; the debate is over whether it provides another good, the
deterrence of non-cost-justified accidents
o Under N, a person is sanctioned only for inefficient conduct; under SL, he
may be sanctioned for efficient conduct, and if the actual costs of that conduct
are exaggerated, the conduct may be deterred
Economic Theory (in-class)
74



Older cases
o Corrective justice
Modern cases
o Collective justice
o Social utility
Economic Goals (King)
o Loss spreading
 Rationale:
 Bottom dollar theory
 Secondary costs
o By spreading the primary costs of accidents we avoid
the secondary costs (i.e. bankruptcy, etc.)
 Alternative
 Insurance
o Not very efficient
o Tort system is not necessarily so great either
 Focus on compensation
o Loss avoidance/risk reduction
 Reducing accidents – reducing the cost of preventing accidents
 Concerns reduction of primary costs
o First factor to be considered
 If B > PL
 Then, we put incentives on those individuals to change their
activity levels, rather than the way they do their activity
 Notion of deterrence
 General deterrence with tort law
 In essence we are imposing a tax…if you engage in this
behavior, you will pay for it…allows for parties to make
rationale choice
o We assume that actors understand the cost of the risk,
and they will make the best choice possible for
themselves and society
 Specific deterrence
 Criminal sanctions
 Regulations
 Problem:
 The court’s and jury’s inconsistent assessment of the risk
makes deterrence difficult due to unpredictability
 Over-deterrence
o Taking people away from valuable activities
o Pushes people into realms/markets that are unregulated
by torts
o Loss allocation/internalization
 If a business spreads its loss, then it is internalizing to a lesser degree
 Spread of losses to customers may still force you to internalize costs
because less people may buy your products
75


Deterrence does not work unless the business internalizes some costs
We want the parties who can avoid the risks most efficiently to
internalize the most costs
 It may not be just D…P should internalize some costs when
comparatively negligent
 Every one who uses a product must internalize some costs
through risk spreading, either through higher prices or lost
business due to high prices. From this, consumers will decide
the social value of a good by their ability to purchase it and by
businesses by their ability to continue/ not continue to produce
it.
o Administrative efficiency
 Tertiary costs of accidents
 Transaction costs in imposing liability
 SL may be more efficient because you do not have to determine fault
 However, SL may open the floodgates to lawsuit
 BUT, overall this argues for SL
Regime
 B (2000) > PL (1000)
o N
 D not N…will not try to prevent harm
 P bears cost…L
o SL
 D is SL…however, P will still not try to prevent harm
 D bears cost…L
 Not worth investing in the safety measure
 B (500) < PL (1000)
o N
 D is N…will try to prevent harm
 D bears cost…L
o SL
 D is SL…will try to prevent harm
 D bears cost…L
 The relationship between B > PL is what matters when Ds decide whether to
prevent the harm, whether or not we use negligence or strict liability
 Key difference between N and SL when B > PL
o It is who bears the cost
 In SL, D has no incentive to prevent harm but they pay
 It is not worth it to do this activity…so business gets out of
it
o RR (500) < canals (1000)
o Accident costs 1500…accident costs 0
o Costs 2000 > costs 1000
o If B > PL
(not) N
P bears loss (engage in
railroads)
76
o If B > PL
SL
D bears loss (engage in
canals)
 If D is best risk avoider…we want them to
internalize accident costs
 Who’s activity has the highest social utility…Ps or Ds
o SL…D changes activity levels
o N…P changes activity levels
In N, D has no incentive to prevent harm but P pays


Goals
o Deter
o Spread
o internalize
LIABILITY FOR DEFECTIVE PRODUCTS


Liability for harm resulting from a defective product
Issues?
o How are P/D related?
o How is product defective?
o What point in chain of distribution does defect arise?
NEGLIGENCE


Historically, the use of negligence theory in case involving product liability was
limited by the requirement of privity, i.e. the requirement that, in order to maintain an
action, P must show that he contracted directly with D
However, this has changed
MacPherson v. Buick
 D made car and sold it to retail dealer. Dealer in turn sold it to P. Due to defective
wheel, the car collapsed and injured P. Although Buick had purchased the wheel
from someone else, there was evidence that Buick could have discovered the defect
by reasonable inspection.
 Cardozo held that P could recover for negligence, despite the fact that he was not in
privity with D. His right of recovery arose out of tort law imposed by the court, not
out of contract. Furthermore, it was not necessary for P to show that cars are in
general “inherently dangerous.” Instead, the test should be whether the product was
“reasonably certain to place life and limb in peril when negligently made…” If so, a
negligence action may be brought even without privity.
 MacPherson thus established the general principle that once P shows that the
product will be unreasonably dangerous if defective, he may sue in negligence
without privity. The effect of this holding was virtually to abolish the rule of
Winterbottom in as case where a negligently made product caused personal
injury.
o Inspection by the supplier of the wheel, but not by Buick
o Buick’s argument: duty is limited by privity of contract
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o Legal theory: negligence
 Buick failed to inspect the wheel
o Historical role: end of privity
 Triumph of torts over contracts
 Duty is no longer just to those with whom you have contracted
o Rule
 Manufacturer has a duty to inspect because they are in a better place to
inspect in this world of increasingly more complex products
o Rationale
 FOS injury
o Scope
 Danger probable from defective product
 People who are going to be exposed to the danger
 Don’t expect inspection by the consumer
 Goods are becoming too complex for P to know what to look
for
 D is liable for hidden defects, not for apparent defects
 Consider proximity/remoteness
 Driver
 Passengers…car has 3 seats, passengers foreseeable
 Bystanders…open question


Every state has now accepted MacPherson. It is therefore universally the rule that
one who negligently manufactures a product is liable for any personal injuries
proximately caused be his negligence.
R2 § 395
o Most courts allow negligence recovery where it is only property damage
o Courts are split as to whether P may recover if he suffers only economic
harm
 i.e. losing profits because of defective machine
o where P is a causal bystander (as opposed to a purchaser or other user of the
product), he can recover in negligence if he can show that he was a
“foreseeable P.”
Classes of Ds
o Manufacturers
 Duty of care includes:
 Design
 Manufacture
 Inspection and testing
 Packaging and shipping
 Assembly of parts made by another
 Manufacture of component assembled by another
 Third person’s failure to inspect does not let manufacture off the hook
 However, if retailer makes inspection and learns of defect and
fails to warn customer, many courts hold that this conduct is so
78
gross that it breaks the chain of causation and absolves the
manufacturer of liability
o Retailers
 Negligent when D:
 Has a reason to know of danger
 Has a duty to inspect
 Has made sales to minors incapable of using the product safely
STRICT LIABILITY


Focus on SL for product liability on the exam
Escola v. Coca Cola Bottling Co. of Fresno
 Coca Cola bottle exploded in P’s hand. P used RIL to infer and establish negligence
against D.
o Majority: N via RIL
 Exclusive control of D…somewhat questionable
 More likely than not due to N…also questionable
 “almost infallible test”
My notes on Escola
o Establishes that it should be recognized that a manufacturer incurs absolute liability
when an article that he has placed on the market, knowing that it is to be used without
inspection, proves to have a defect that causes injury to human beings
 Irrespective of privity of contract, the manufacturer is responsible for an
injury caused by such an article to any person who comes in lawful contact
with it
o The manufacturer incurred by his warranty should apply to the immediate purchaser
(retailer)
o Proximate cause still must exist though
o Rationale
 Public cannot anticipate or protect against the defects of products like
manufacturers can
 It is to the public’s interest to eliminate products that are a menace to the
public, and if not eliminated the manufacturers who produce those products
should be responsible for the injuries that they cause
 SL against the manufacturer gets around a situation in which P holds a retailer
liable and the retailer sues his manufacturer
 Elimination of the close relationship between manufacturer and consumer
creates of reliance of faith by the consumer that the manufacturer must
reciprocate by thoroughly inspecting his products
Justice Peters on bystanders (another case)
o Manufacturers are SL where injury to bystanders from defect is reasonably
foreseeable.
79
o Rationale: bystanders should be entitled to an even greater protection that the
consumer because they have no opportunity to inspect the product for defects
In-class
 Traynor’s concurrence:
o Theory…SL
o Policy reasons:
 Loss avoidance/reduce primary costs of accidents
 Eliminate products that are a menace to society
 Internalization/cost of accidents
 Business is more able to bear costs
 Risk spreading/secondary costs
 Manufacturer is able to spread losses to public
 Lessen administrative costs
 More straightforward
 SL against the manufacturer gets around a situation in which P
holds a retailer liable and the retailer sues he manufacturer
 Proving negligence is circuitous…inefficient
o SL when…
 Normal proper use
 Abnormal, improper use…consumer’s risk to guard
against…they need to internalize the costs
 Without inspection
o Role of contract (implied warranty) in SL
 When dealing with implied warranty…don’t need fault
 Implied warranty….buyer insured by seller
 Buyer does not inspect
 Buyer/manufacturer relationship less close
o Traynor is ultimately using contract theory to justify his creation of new
tort theory
 SL
 N…lack privity
 W…lack fault
 IW expands potential P’s
o Ryan…eliminates privity
o Henningston…goes beyond food
 Broader range of Ds
o Retailers (Vandemark)
 Holder retailers liable
 Deterrence
 Administrative costs…you can go after retailer
o Suppliers?
 Majority…yes
 deterrence
 Some…no
 Product causing harm is not completed
80

 Supplier…manufacturer…retailer…buyer…bystander/passenger
 R2 and R3 provide no answers
Range of potential plaintiff’s
o User/consumer
o Passengers…yes
 Even less able to inspect than buyers
 Also, they are expected users
o Bystanders
 No assumption of risk
 Even less of an ability to inspect
 Non-reciprocal risk
 No benefit
 However, they are more remote
DEFECTIVE PRODUCTS

Products liability…defective products
o 402A…unreasonably dangerous
 comment i: beyond consumer expectations
o manufacturing defects
 deviates from intended designs
 relies on consumer expectation
 feels a lot more like SL
o design defects
 design itself is a problem
 consumer expectations might not be all that helpful
 feels a lot more like N
 balancing tests
o warning defects
 how to use the product
 what’s in the product that makes it dangerous
 feels a lot more like N
 balancing tests
o DD: CA rejects unreasonably dangerous
Restatements
R3 Products Liability
§ 1 Liability of Commercial Seller of Distributor for Harm Caused by Defective Products
One engaged in the business of selling otherwise distributing products or sells or
distributes a defective product is subject to liability for harm to persons or property
caused by the defect.
§ 2 Categories of Product Defect
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A product is defective when at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of inadequate
instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its intended design
even though all possible care was exercised in the preparation and marketing of the
product;
(b) is defective in design when the foreseeable risk of harm posed by the product could
have been reduced or avoided by the adoption of a reasonable alternative design by the
seller or other distributor, or a predecessor in the commercial chain of distribution, and
the omission of the alternative design renders the product not reasonably safe.
(c) is defective because of inadequate instructions or warnings when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the provision
of reasonable instructions or warnings by the seller or other distributor, or a predecessor
in the commercial chain of distribution, and the omission of the instructions or warnings
renders the product not reasonably safe

R3 departs from R2’s requirement of an “unreasonably dangerous product” in
suggesting that a manufacturing design exists whenever the product does not live
up the design, and there is no need for the plaintiff to show that the product was
“unreasonably dangerous”(or even “dangerous” at all)
DESIGN DEFECTS
Barker
 Liability not only when product is being used properly, but also when the product is
being used in an improper but reasonably foreseeable fashion
 Two tests
o Consumer expectation
 Feels like implied warranty
o Risk-utility
 Feels like N (Hand)
 Balancing factors
 Get around feeling like negligence by switching the burden of proof
o unusual
o Does not exists in most Js
Soule v. General Motors Corp.
 D alleges that defect lead to the braking out her ankles in the accident. It did not
cause the accident itself. D is focused on enhanced injuries (“crashworthiness”).
 Issue: whether to use consumer expectation or risk-utility?
o Manufacturer wants to use the latter test
82



When you are manufacturing complex things like cars, you are making
trade-offs
 Subjective, defies definition
 Risk-utility is better for the manufacturer in this case
CE v. R/U: Product is too complex for ordinary consumer to form expectations. So
we turn to the alternative test: risk-utility test.
o CE makes more sense to use in cases considering manufacturing defects
because the consumer will know what to expect
o Soule court stated that the consumer expectations test was properly employed
when “the circumstances of the product’s failure permit an inference that the
product’s design performed its ordinary consumers.”
Court held that the error in giving jury instructions on consumer expectation was a
harmless error because P still would have prevailed.
o CE v. R/U (alternative tests)
 CE
 Use when the consumer has expectations that are not met when
harm is caused by defect
 R/U
 Includes a more technical explanation of the defect
 Capacity of consumer to have expectations
 What test is used is often a source of disagreement between the
parties
 GM (D)
o Hidden defect
 Not apparent until after the accident
o Highly technical
Reasonable Alternative Design (RAD)
 Ordinarily, P will have to prove that there indeed existed a RAD that would have
been materially safer. This is necessary but not sufficient condition to P’s recovery; P
loses if she doesn’t show the existence of an RAD, but does not necessarily win even
if she does show an RAD (she still has to show that the existing design is so unsafe
that failure to use RAD “renders the product not reasonably safe”).
o Sources of proof
 Other products’ safety features
 Cost and utility of the RAD proposed by P
 Consumer choices
Proximate Cause
 As with manufacturing defects, the supplier must anticipate uses that were not
intended
o Unforeseeable misuse can cut off liability
o Manufacturers are only liable for the amount of damages caused by their
product
 i.e. liability for enhanced injuries caused by defendant’s design defect
Irreducibly unsafe product
83

A few courts allowed P to make the argument that even if current design cannot be
improved on, the design of the product (perhaps the design of the whole category of
product) is such that its risks outweigh its utility, and therefore the product should not
be sold.
o O’Brien
 Liability if no utility
o NJ statute
 No liability if no alternative design UNLESS
 Ultrahazardous
 Don’t expect P’s to know risk
 Little utility
o Some say warning…no liability
o R3
 Liability if there is no alternative design and the value of the product is
minimal
Camacho v. Honda Motor Co., Ltd.
 P alleges that he suffered enhance injuries because the lack of crash bars on his under
the “crashworthiness” doctrine. Under this doctrine, a motor vehicle
manufacturer may be liable in negligence or SL for injuries sustained in a motor
vehicle accident where a manufacturing or design defect, though not the cause of
the accident, caused or enhanced the injuries. Court held that SJ was inappropriate
because there were factual questions of risk-utility. Dissent suggests the ordinary
consumer had enough knowledge to make choice and thus the consumer expectation
test is the correct test here. Also, the R/U cited by the majority and applied in Ortho
is better suited for cases involved drugs.
o The lack of the crash bars is apparent and thus cannot defy consumer
expectations…Honda wants CE
 Obviousness makes CE a good choice for Honda
 CE serves as a kind of defense for D when the defect is open
and obvious
o CE v. Ortho (R/U)
 Depends on nature of the case
 CE
 Simple products
 Can infer product defects
 R3…No CE test, but you can infer defects (we use the Ortho factors
for this)
 Foreseeable risk
 Could be reduced with reasonable alternative design (RAD)
o Exception: cases where the value or utility is minimal
 Omission to use alternative design
 Not reasonably safe
 Ortho (similar to R3) (use this test for risk-utility on the exam)
 Utility to user/public
84

o Manufacturer…lots of utility
o P…no utility
 Safety
 Available substitute to meet same need
o This is a requirement in R3
o Problem for the plaintiff if there is no substitute
 Availability to reduce risk without impairing utility/cost
o Does the shift to the substitute really change the
utility/character of the product
 Users ability to avoid danger
 User’s anticipated awareness
o Consumer expectation test
o Are there warnings that make the consumer aware?
 Feasibility spreading loss
o Always going to be the manufacturer
o Choice v. protection
 You end up considering the Ortho factors
o Assessing design defects is a lot like negligence, not SL
 For the manufacturer it feels a lot like negligence because we are
evaluating the product they MADE
 For the retailer, it feels more like SL because he was evaluated in
regard to the product alone that they DID NOT MAKE
Open and obvious defense
o Most Js have eliminated the open and obvious defense because it does not
force manufacturers to make their products safer, it just makes them try to
make the defects more obvious
 Manufacturers probably want CE test when danger is open and
obvious
 Different if the defect is hidden
 Ps probably want R-U test when danger is open and obvious
o Problems with R-U:
 What is acceptable costs a manufacturer must incur in correcting its products
defects?
 No uniform standard for manufacturers to abide to
 Even if there is, legislative regulators are sometimes
inconsistent/contradictory with court rulings
 Might be better for legislature to regulate
o Dawson
Restatement 3
§ 3.
Circumstantial Evidence Supporting Inference of Product Defects
85
It may be inferred that the harm sustained by the plaintiff was caused by a product defect
existing at the time of sale or distribution, without proof of a specific defect, when the
incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than product
defect existing at the time of sale or distribution
FAILURE TO WARN
 Failure to warn and design defects are much more like negligence than
manufacturing defects




Two types of defects
o Failure to warn
o Inadequate warning
2 types of warnings
o warnings on how consumers can use the product safely
o warning to make consumers aware of inherent risk
The duty to warn is an extra obligation placed on manufacturers. It cannot alone
exculpate them for defective products, but a lack of warning can inculpate them for
non-defective products used in a improper manners.
o Warnings will not shield D from liability if the product is manufactured
or designed defectively
 R3 § 2: “warnings are not, however, a substitute for the provision
of a reasonably safe design.”
 Design defect v. warning
 Manufacturers must design as best as possible to avoid risk
o You must design away any risk that can reasonably
designed away, and then you must warn for any risk
that cannot be reasonably designed away
o Also, warnings will not shield D from liability even if the product is
manufactured and designed properly, but the manufacturer fails to
warns of some non-obvious risk of personal injury or a risk presented by
foreseeable misuse of the product.
Risk-utility basis for warnings liability
o R3 § 2(c): a product will be deemed defective on account of “inadequate
instructions or warnings” “when the foreseeable risks of harm imposed by the
product could have been reduced or avoided by the provision of reasonable
instructions or warnings…and the omission of the instructions or warnings
renders the product not reasonably safe”
 Vasallo v. Baxter Healthcare Corp. (warning against inherent risks)
86

P suing D for failing to warn about risks of defective breast
implant. Court did not hold D liable in light of their revision to
the law stating that a D cannot be held liable for failure to warn
or provide product instructions about risks that were not
reasonably foreseeable at the time of sale or could not have
been discovered by way of reasonable testing prior to
marketing the product. Furthermore, the court stated that a
manufacturer will be held to the standard of an expert in the
appropriate field and will remain subject to a continuing duty
to warn (at least purchasers) of risk discovered following the
sale of the product at issue.
o R2
 The seller is required to give warning against a
danger if he has knowledge, or by the
application of reasonable, developed human
skills and foresight should have knowledge of
the danger
o R3
 Discoverable with reasonable testing
 Ex ante test
o Based on what you knew
o The ex post test is rarely used
 P would much rather
this test
 “Reasonable testing” is somewhat
ambiguous
o Limited by the language in the
cases below
o What is state of the art for the
manufacturer at hand?
o i.e. is it reasonable for an
American scientist to look to
information in a Finnish journal?
o Kind of like custom…not what
could have been know, but
what most people know
o Vasallo (some version of this is the majority test)
 Reasonable testing as expert in the field
o Bessemer
 Imputing knowledge on manufacturer
o Ferayorni
 Discoverable
 generally recognized test
 under prevailing knowledge
o Rationale for having the hind sight test
87




There’s no deterrence because they have no way
of knowing about the risk
 B > PL
 We do not apply true SL here because
we do not want overdeterence…we do
not want to drive manufacturers out of
the industry
o However, we do give them at
least an incentive to warn against
known risks
 In these situations we are generally
dealing with pharmaceuticals and we do
not want to overdeter their production
o SL v. N
 Kind of like medical malpractices cases
 Heightened duty
 Longer warnings are not necessarily better because they may hinder
the customer’s focus on the important aspects of the warning
 Although warnings are normally required to presented to the
purchaser, sometimes persons other than purchaser may need
warnings
 i.e. one could post a warning on a machine that will be used by
non-purchaser/employees
 the fact that a particular danger is inherent in the use of the product
does not mean that the danger need not be warned against
 allows the potential purchaser to make a informed decision on
whether to buy the product
There is generally no duty to warn if D could not have known or should not have
known of the particular danger at the time of sale
o However, a seller is charged with knowledge of what reasonable testing
would reveal. If testing is not undertaken, or is performed in an inadequate
manner, and this failure results in a defect that causes harm, the seller is
subject to liability for harm caused by such defect.
Danger discovered after
o Restatement 9…duty to warn (basically N)
 Know or should have known substantial risk
 Those would benefit aere identifiable and likely unaware
 Warning can be conveyed and acted upon
 B<PL…justifies warning
Danger to small number of people
o If the manufacturer knows that the product will be dangerous to a small
number of people, may it make the decision that the need for a warning is not
sufficiently great? This will usually turn on the magnitude of the danger; if
the danger is great enough, even a small number of potential bad results will
require warning.
88



R3: “the more severe the harm, the more justified is a conclusion that
the number of persons at risk need not be large to be considered
‘substantial’ so as to require a warning.”)
Obvious danger
o Often times the fact that a danger is obvious will reduce D’s need to warn
about it. However, many recent decisions hold that there remains a duty to
warn in situations where a substantial minority of people, P included, were not
aware of the danger.
 Even if the danger is obvious, it does not make the warning valueless.
There are two quite distinct functions that a product warning may
play: a notification of danger, but also an explanation of the
existence of a safer alternative. Since even a warning about obvious
danger may give useful information about the existence of a safer way,
courts increasingly hold that obviousness is not an automatic defense
to a failure-to-warn claim.
Warnings against misuse…WARNINGS TO MAKE SAFE
o Just as modern cases may require D to design to protect against foreseeable
misuses of the product, so he may have to warn against such misuses
o Warning against the removal of safety devices
 Removal of safety devices is generally viewed as intervening cause
that probably shields the manufacturer from design-defect liability, but
the manufacturer in these situations may nonetheless be liable for
failing to warn the ultimate user that using the equipment without the
safety device is dangerous.
 Hood v. Ryobi America Corp.
 P was injured when he used D’s tool without proper safety
device. Court held SJ for D. Court held that D’s warnings to
use tool with proper safety device were adequate in the sense
that they warned against reasonably foreseeable injury and that
benefits of extending them would not have outweighed the
costs. On the latter issue the court reasoned that longer
instructions sometimes lessen the chance of users actually
reading them, thus undermining the effectiveness of the
warnings altogether.
o Is a warning necessary?
 Not if its obvious/common knowledge.
o If there is a warning, is it adequate?
 4th circuit test (not here, but most courts think
that this is a test for the jury)
 reasonable under the circumstances
 risk/benefit of too many warnings
o best argument for Hood
 the fact that Hood cannot use this product in the
way he wants to use it
o R3
89



If there is a foreseeable risk that could be
decreased with a reasonable warning, then an
omission to warn makes the product
reasonably dangerous
Reasonableness test
 comprehensibility of the
warning…language/pictures
 intensity…fond, color, location
 content
o seriousness of the possible
injury…magnitude of the injury
is important
o type of possible injury
o consequences
o what precautions can be taken
o consequences of uses…what you
can do to avoid negative
 characteristics of the user may
determine the reasonable presentation of
the instructions
o feels like N for manufacturer, and SL for the retailer
Post-sale duty to warn
o Duty to warn when manufacturer learns of the risk
 The most common approach is to hold that at least when the
manufacturer eventually learns about the risk, it has an obligation to
give a post-sale warning if the risk is great and the user of the product
can be identified. In this situation a duty to warn probably exists even
though the defect was not knowable at the time of manufacture.
 R3 § 10
 One who sells a product commercially has a duty to issue a
post-sale warning is a reasonable person in the seller’s position
would provide such a warning
 A reasonable person in the seller’s position would provide a
post-sale warning if:
9
o The seller knows or reasonably should know that the
product posses a substantial risk of harm;
o Those to whom a warning might be provided can be
identified and can be reasonably assumed to be
unaware of the risk of harm;
o A warning can be effectively communicated to and
acted upon by those to whom a warning might be
provided; AND
o The risk of harm is sufficiently great to justify the
burden of providing a warning
90


With regard to one class of products, prescription drugs and
devices, courts traditionally imposed a continuing duty of
reasonable care to test and monitor after sale to discover productrelated risks
 There is generally no duty to monitor in non-drug cases unless
the manufacturer gains some information as to potential
problems with the product
 Some courts go even further than imposing a post-sale duty to warn;
they impose a duty to inform the user about a newly-discovered safety
technology
 e.g. a newly available guard on a dangerous machine tool
 Product recalls
 Duty to recall usually left to legislature
 Where there is no statute or regulation requiring a recall, most
courts will not impose a separate liability
o R3: liability for failure to recall only if the maker
undertakes to recall the product and then fails to carry
out the recall in a reasonable way
Plaintiff who ignores the label
o Majority
 Most courts give P the benefit of a rebuttable presumption that
consumers will read and heed adequate warnings. In these courts, it
will generally not make any difference if D shows that P ignored the
inadequate warning that was in fact given – P still is generally treated
as if he would have read and heeded an adequate warning.
 Heeding presumption
o Goes against D’s case
o Feels a little bit more like SL
o Causation in presumed
 Causation in warning cases
o P has to show that he would have heeded the warning
had he been properly warned
 Like informed consent
 Warning would have made a difference
o Minority
 But a minority of courts put upon P the burden of proving that he
would have read and followed an adequate warning. In these courts, if
D can show that P disregarded the inadequate warning that was
actually given, P will generally be treated as not having borne this
burden.
DEFENSES

Third Restatement/modern approach recognizing comparative fault
91

o P’s negligence may be asserted as defense (to reduce damages) in product
liability actions
o R3 § 17(a): P’s recovery of damages for harm caused by a product defect may
be reduced if the conduct of P combines with the product defect to cause the
harm and P’s conduct fails to conform to generally applicable rules
establishing appropriate standards of care
 General Motors v. Sanchez
 Court held that any P’s conduct other than the mere failure to
discover or guard against a product defect is subject to
comparative responsibility. D’s breach of ordinary care in
shifting gears amount to conduct other than a mere failure to
discover or guard against a product defect. The court held as a
matter of law that such conduct must be scrutinized under the
duty to use ordinary care or other applicable duty.
o R2
 Contributory negligence is not a bar to recovery
when such negligence consists merely in a
failure to discover the defect in the product or
guard against the possibility of its existence
 Not a defense to product liability
 Assumption of risk bars recovery
o R3…most Js
 Comparative negligence
 Is it reasonable not to discover?
o N v. SL
 You are comparing fault to no fault
 Apples and oranges
 Decreases incentives of the manufacturer to
make the product safe
 However, we want incentives to make sure that
P’s use the product safely
 We want P to be risk averse, too
o Comparative Negligence…courts are split here
 TX: comparative negligence, except for
failure to discover…many Js
 R3: comparative negligence. No
exception…most Js
 Hidden defects probably will come out
the same way under both theories
 Obvious defects will probably be
reduced under R3
o Policy
 Encourages care on part of P
 Makes P liable for negligence
Different types of negligence by P
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
o P’s failure to recognize a unreasonable danger that is not open and
obvious is NOT N
o Failure to discover risk is NOT N because the person is normally entitled to
assume that a product is not defective
 17(a), comment d: in general, P has no reason to expect that a new
product contains a defect and would have little reason to be on guard
to discover it
o Assumption of risk will be treated as a form of comparative negligence to
the extent the P’s decision to use the product in the face of known risk was
unreasonable
o Ignoring of safety precaution
 In most courts, P failure to use an available safety device will be
generally viewed as comparative negligence
 Contra R3 § 18
o Disclaimers and limitations of remedies by product
sellers or other distributors, waivers by product
purchasers, and other similar contractual exculpations,
oral or written, do not bar or reduce otherwise valid
products liability claims against sellers or other
distributors of new products for harm to persons
o Misuse (may just come under proximate cause analysis of prima facie
case)
 If P totally misuses the product, D will not be relieved from liability
unless the misuse was so unforeseeable or unreasonable that either:
1. The misuse couldn’t reasonably be warned or designed
against OR
2. The misuse is found to be superseding
Disclaimers generally do not bar recovery
o Express assumption of risk…courts divided
 Not for any implied assumption of risk
o Secondary assumption of risk
 Some Js say comp negligence
 some bar recovery
 makes more sense because the risk is open and obvious and the
product is not defective under the consumer expectation test
o comparative negligence in using the product
 foreseeable misuse…could reduce damages
 unforeseeable misuse…bars recovery
DAMAGES

Tort law endeavors to provide the injured P a sum of money adequate to compensate
him, though certainly not to restore him to his pre-injury position
PERSONAL INJURY
 The single recovery rule
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o All compensation for P’s losses from the tort must be done in a single trial
 P must come up with past and future damages
 Future damages must be reasonably probable
o Future damages are difficult to predict
 Rationale: prevent repeated reopening of cases
 May be a windfall for either party
 Windfall for P if he recovers for damages that do not
materialize
 Windfall for D if P does not recover for future damages that
occur
 Elements of compensatory damages
Economic Losses
o Medical expenses
 Bills, meds, travel, therapy, equipment
 For how long?
 Requires medical experts and actuarial testimony
o Lost earnings and earning capacity
 the condition of being disabled leads to lost earning capacity
 from time of accident to trial
 lost future earnings depends on many factors
 expected duration of disability
 type of work P would have done without injury
o difficult if career path is undefined
 how long would P have worked if there was no injury
 fringe benefits
 reduced by earning capacity post-injury
Non-economic losses
o Pain and suffering
 Catch-all term that encompasses almost all subjective reactions
 Physical pain
 Emotional distress
o Loss of enjoyment of life
 Sometimes included under pain and suffering
 Measured against pre-accident life expectancy
o Effects of unconsciousness on Non-economic loss
 Most courts deny recover for P & S
 Divided as to whether they may recover LEL
o Risk of future disease
 Can usually recover for future disease if future disease is reasonably
probable (greater than 50%)…most Js
 If disease is not reasonably probable…most common approach is
“two-disease” rule
 Allows P to recover for second disease when it develops
 Some bar recovery under single recovery rule
 Theoretically could award proportional recovery
 Collateral source rule
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

o Traditional rule: None of D’s business if P is compensated from “collateral
sources”
o Rationale
 D shouldn’t get windfall from P’s attempts to prevent loss
 Protects insurer’s subrogation
o Concerns
 Windfall for P
 Economically inefficient
Economic damages v. noneconomic damages
o ED…medical expenses (past and future), lost earnings and earning capacity
(past and future), property damage
 Less subjective
o ND…pain and suffering, loss of enjoyment of life
 Highly subjective
 Some courts put caps on noneconomic damages
Two other types related to compensatory damages
o Nominal damages
 may sometimes be granted if P proves the elements of a tort but has
suffered no actual damages
 usually intentional torts
 e.g. some offensive contract batteries
 compensation often not worth litigation
o Punitive damages
 Sometimes awarded in tort cases to punish D for particularly
egregarious conduct, and to deter such conduct in the future
 May be awarded in addition to compensatory damages
 Motive or conduct that evinces antisocial state
 Damages may be very high, but you want to create incentives to
litigate these kinds of cases
WRONGFUL DEATH AND SURVIVAL ACTIONS
 Both originally prohibited under CL because death was not an injury
 Continue if either party dies
 THERE IS NO SEPARATE WRONGFUL DEATH OR SURVIVAL TORT
o These are damages
 Based on claims decedent would have had if he had lived

The action for wrongful death
o Actions for wrongful death are based on statutes, and differ from state to
state
o These kind of statutes allow recovery for wrongful death if the decedent
would have had a cause of action herself has she been injured instead of killed
o Who gets compensated?...loss-to-survivors approach
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

Wrongful death statutes authorized damages for the economic or
emotional losses to the survivors of the decedent, not the loss suffered
by the decedent herself
 Usually limited to close relatives
 The executor or administator of the estate is empowered to bring the
action, but the damages are measured by the losses to the statutory
beneficiaries (close relatives) and are distributed by the executor and
administrator to them
 Many statutes provide that the recovery does not become part of the
decedent’s estate and thus the recovery does not go to pay the
\decendent’s creditors
o What losses are compensated?
 Long term tangible (financial support) and intangible (companionship,
etc.) losses
 Immediate tangible (funeral and burial expenses) and intangible losses
(the grief and mental anguish of learning of death)
 Historically, many wrongful death statutes limited damages to the
“pecuniary losses” resulting to the specified survivors, that is, direct
financial contributions and services the decedent would have rendered
to the survivors
 However, many states have moved away from this pecuniary
restriction
o An alternative approach…loss-to-estate approach
 A few states focus on the loss to D’s estate from his premature death
 Earnings-expenses = net worth (damages)
 Rationale
o Whatever decedent saved from his income would have
one either to support his family while he was alive or
into his estate and been distributed to his heirs or
legatees after death
o Damages for loss of life itself
 Although the loss of life itself is the most grievous loss imaginable,
most wrongful death statutes do not authorize damages for the years of
living that the decedent would have enjoyed but for the wrongful death
 Rationale
o Loss of life is viewed as beyond compensation, since
the decedent obviously cannot benefit from any
compensation awarded; any award for these lost years
would simply be a windfall to her survivors
Survival Statutes: preserving claims for pre-death damages
o Like the bar on recovery for wrongful death, most states now have survival
statutes, which provide that causes of action “survive” rather than abating at
the death of the tortfeasor or the injured party
 Where the injured party dies, survival statutes authorizes the
decedent’s executor or administrator to bring suit (or continue one
already in progress) to recover for the decedent’s injuries
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
o Damages include medical expenses, lost wage and pain and suffering of P
 Since P dies from his injuries, the wrongful death statute also
authorizes a separate action for damages caused by the death itself,
that is, losses incurred by his survivors during Period B
o Rationale
 Although a survival action, like a wrongful death action, cannot
compensate the decedent, the recovery usually goes into the decedent’s
estate and passes to his heirs. Though the decedent takes no direct
benefit from the action, she may at least take solace before death in the
knowledge hat somebody will be compensated for the tort, and that
those somebodies will be of her choosing.
 Also, it doesn’t make sense for a court to go to judgment one
day before the victim dies and not one day after the victim dies
o Survival statutes similarly allow recovery in cases where the tortfeasor dies
o Although often associated with wrongful death statutes, survival statutes do
not apply only in cases where D’s negligence cause death
 Certain state statutes allow P’s damage claim to survive whether he
dies of the injuries suffered in the accident or of unrelated causes
Contributory negligence
o Contributory negligence of decedent affects recovery
o Contributory negligence of beneficiaries reduces there recoveries
SUPPLEMENTAL CASES
DUTY TO WARN?
 Safer v. Pack
o P filed a complaint against D for professional negligence in his failure to warn
her of the risks created by genetic abnormalities that led to her father’s death
and of which he was aware. Trial court dismissed the complaint, holding that
the was no duty to warn a child of patient of a genetic risk. The IA court
reversed the dismissal of the complaint, holding that the there was no
impediment, legal or otherwise, to recognizing a physician’s duty to warn
those known to be at risk of avoidable harm from a genetically
transmissible condition. In terms of foreseeability especially, the court held
that there is no essential difference between the type of genetic threat at issue
here and the menace of infection, contagion, or a threat of physical harm.
Furthermore, this duty extends beyond the interests of a patient to members of
the immediate family of the patient who may be adversely affected by a
breach of duty, thus it is required that reasonable steps be taken to assure that
the information reaches those likely to be affected or is made available for
their benefit.
 Duty
 To immediate family
o How likely is it that the family member will have the
genetic defect?
 Avert harm
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




Scope


Policy


Take reasonable steps to get info to third party (Safer)
Just tell the patient (Pate)
Policy is likely to affect scope
Will telling make positive difference?
o Treatment
o Life planning – reproduction, career, marriage
o Choice
 Ability to prevent
o Probability
o magnitude
 Are there other ways to get information to the patient without
breaching confidentiality?
 Harms of disclosure
o Discrimination
o Dissuading future testing
 People will not get tested nor will they
participate in trials
o Harms of expectation
o Secondary harms of treatment
 Maybe done too soon
 Does the person want to know?
Approach
 Duty to warn and tell the third party
 Privilege to warn
o Option to warn and wont be liable if you do for breach
of confidentiality
o Ideal for physicians…allows for decision-making
 Administration suggests that you have the
privilege to warn if there is dire harm of genetic
risk
 No right to warn
o Confidentiality trumps
o Second choice for physicians
Most Js allow for wrongful birth claims
o Claims by parents where doctor’s failure to warn of possible birth defects
would have caused them to not have the child that they in fact had without
that knowledge
Most Js do not allow for wrongful life claims
IIED
 Hustler Magazine, Inc. v. Farwell (US SC)
o D produced a magazine aid that served as an offensive parody of Farwell, a
public figure. In regard to the lower court’s finding of intentional infliction of
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emotional distress , the SC reversed. The court held that public figures and
public official may not recover for the tort of intentional infliction of
emotional distress by reason of publications such as the one here at issue
without showing in addition that the publication contains a false
statement of facts which was made with “actual malice,” i.e. with
knowledge that the statement was false or with reckless disregard as to
whether or not it was true.
 Elements of IIED in VA
1. Intentional/reckless
2. Extreme and outrageous/outrageous and indecent
3. Caused
4. Severe emotional distress
 Rule
 Public official cannot recover for IIED UNLESS false and
malice
 Rationale
 Do public figures consent to this sort of publication?
SUPPLEMENTAL CASES
DUTY TO WARN?
 Safer v. Pack
o P filed a complaint against D for professional negligence in his failure to warn
her of the risks created by genetic abnormalities that led to her father’s death
and of which he was aware. Trial court dismissed the complaint, holding that
the was no duty to warn a child of patient of a genetic risk. The IA court
reversed the dismissal of the complaint, holding that the there was no
impediment, legal or otherwise, to recognizing a physician’s duty to warn
those known to be at risk of avoidable harm from a genetically
transmissible condition. In terms of foreseeability especially, the court held
that there is no essential difference between the type of genetic threat at issue
here and the menace of infection, contagion, or a threat of physical harm.
Furthermore, this duty extends beyond the interests of a patient to members of
the immediate family of the patient who may be adversely affected by a
breach of duty, thus it is required that reasonable steps be taken to assure that
the information reaches those likely to be affected or is made available for
their benefit.
 Duty
 To immediate family
o How likely is it that the family member will have the
genetic defect?
 Avert harm
 Scope
 Take reasonable steps to get info to third party (Safer)
 Just tell the patient (Pate)
 Policy
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




Policy is likely to affect scope
Will telling make positive difference?
o Treatment
o Life planning – reproduction, career, marriage
o Choice
 Ability to prevent
o Probability
o magnitude
 Are there other ways to get information to the patient without
breaching confidentiality?
 Harms of disclosure
o Discrimination
o Dissuading future testing
 People will not get tested nor will they
participate in trials
o Harms of expectation
o Secondary harms of treatment
 Maybe done too soon
 Does the person want to know?
Approach
 Duty to warn and tell the third party
 Privilege to warn
o Option to warn and wont be liable if you do for breach
of confidentiality
o Ideal for physicians…allows for decision-making
 Administration suggests that you have the
privilege to warn if there is dire harm of genetic
risk
 No right to warn
o Confidentiality trumps
o Second choice for physicians
Most Js allow for wrongful birth claims
o Claims by parents where doctor’s failure to warn of possible birth defects
would have caused them to not have the child that they in fact had without
that knowledge
Most Js do not allow for wrongful life claims
IIED
 Hustler Magazine, Inc. v. Farwell (US SC)
o D produced a magazine aid that served as an offensive parody of Farwell, a
public figure. In regard to the lower court’s finding of intentional infliction of
emotional distress , the SC reversed. The court held that public figures and
public official may not recover for the tort of intentional infliction of
emotional distress by reason of publications such as the one here at issue
without showing in addition that the publication contains a false
100
statement of facts which was made with “actual malice,” i.e. with
knowledge that the statement was false or with reckless disregard as to
whether or not it was true.
 Elements of IIED in VA
1. Intentional/reckless
2. Extreme and outrageous/outrageous and indecent
3. Caused
4. Severe emotional distress
 Rule
 Public official cannot recover for IIED UNLESS false and
malice
 Rationale
 Do public figures consent to this sort of publication?
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