Intentional Torts: battery, assault, false imprisonment, IIED
Intentional Torts =
 Volitional act +
 Intent (purpose or knowledge—substantial certainty of result, Garratt, even if unlikely to
occur, e.g. throwing rock at far-off person)+
o Transferred intent- 1) A intends a tort on B, but commits a tort on C OR 2) A
intends one tort, but accomplishes another= STILL LIABLE
 available in assault, battery and false imprisonment (limited in IIED)
 Causation (conduct of D is substantial factor in bringing about injury)
Liability:
1. Insane NOT excused
2. Children generally NOT excused if P can prove elements, incl intent
a. EXC: not liable in some states where young children (usually <7) are held to be
incapable of intent or tort generally
b. Parents: NOT liable for children’s torts
i. EXC: where statute imposes liability (in most states, but limited to kids’
willful/wanton acts and damages capped at low amt)
3. Respondeat superior: employers sometimes liable for employee torts committed in course
of employment. If worker is injured, worker’s comp usually covers (except intentional torts,
Bruce, unless in furtherance of company)
Battery
1. An act by the D with…
2. Intent to cause
o Purpose/knowledge (Garratt)
o RULE CHOICE: dual intent (majority)- intent to cause a harmful or offensive
contact via a touching vs. single intent (minority)- intent to touch
o Transferred intent applies (Stoshak, hit teacher), but SOL remains same (Baska)
o Tortfeasor need not be rational (Polmatier, crazy son in law)
3. H/O (“would offend a reasonable sense of personal dignity”, RS 19, Turk) contact, or
imminent apprehension of such a contact, AND
o Offensive contact (no injury necessary)
 offends a reasonable sense of personal dignity, Turk OR
 via prior knowledge, defendant knows plaintiff will be offended by the
contact
o Dual vs. Single Intent
i.
Dual: intent to make contact + intent that contact be H/O (White, old
lady hitting). Rationale: more subjective, refocus punishment on those
meaning to harm.
ii.
Single: intent to make contact--which ct determines was H/O (Wagner,
mental patient attack). Rationale: practical consequences of dual intent
unworkable/insufficiently protective, makes unwanted kiss ok.
4. H/O contact occurs
a. Victim need not realize H/O contact at time (e.g. asleep)
b. Medical care over objection always = battery (Cohen, naked C-section)
EXC: if provider doesn’t know of objection (VanHoey)
1
5. Causation- liable for…
o Direct contact of P (or extension of P, e.g. cane)
o Indirect contact- not necessarily touching P (i.e. throwing object at P, Leichtman,
smoke particles)
 Sufficient if defendant sets in motion a force that brings about harmful or
offensive contact
 i.e. Plaintiff falls in hole dug by defendant
 i.e. Defendant was angry and broke a glass door. Plaintiff later cut by
glass.
6. Damages: don’t need to prove actual damages, can be nominal (Elkin, sexual abuser dad)
Assault
1) Intent (knowledge/purpose) to put P in apprehension of an immediate H/O contact AND
2) Reasonable and imminent apprehension of battery results, Cullison, trailer visit, vs. Koffman
(student tackled by coach, didn’t have apprehension beforehand, battery)

Reasonable based on D’s apparent ability (e.g. gun, even if unloaded) OR based on
unreasonable fear D knows of
--Words alone not reasonable unless accompanied by more and may negate apprehension
(e.g. “I’d punch you if I weren’t so nice”)
--P must be aware of threatened contact, contrast to battery

Imminent= “no significant delay”, D has present ability to carry out threat
o threats of future contact insufficient (i.e. “beat you up tomorrow” not assault)
o also no assault if D is too far away to do any harm or merely preparing for future
harmful act

Conditional threat:
o Liable if actor gives the other an option to escape the contact by obedience to a
command unless command is one which the actor is privileged/has a legal right to
enforce
 EX: Burglar P enters D’s house. D says, “If you don’t leave, I’ll throw you
out.” No assault on P b/c D has legal right to force P to leave.

Actual damages not required; can recover for nominal damages
2
False Imprisonment
1) Intent to confine (knowledge or purpose)
2) Confinement
 Physical barrier/force (held within certain limits, not that P is prevented/excluded from
entering certain places, e.g. restaurant)
o Force can be directed at him, member of his immediate family, or his property
 EX: P cannot leave building because D has her purse.
 By threat of force/duress/invoking legal authority
o Must be plausible threat (reasonable person standard)
o E.g. NO, Hardy, didn’t ask to leave/not told she had to stay, vs. McCann, reasonable
people would’ve thought Wal-Mart would use force/had authority
 Complete = even if there’s a way to escape, UNLESS P knows of escape (required to pursue
reasonable means of escape, but liable if escape would offend reasonable dignity)
3) P= aware of confinement OR harmed by it
o E.g.: baby locked in bank vault false imprisonment
o E.g.: sleeping person locked in room, learns later that door was locked not false
imprisonment
4) Damages: not limited to actual compensatory damages, exc. in case of “harm” not
“awareness”
5) Similar act not done w/intention to confine is NOT false imprisonment, but may be
negligent/reckless if risk threatened bodily harm (e.g. accidentally locking grocery
employee in cold vault)
Intentional Infliction of Emotional Distress (IIED)
1) D intentionally or recklessly
2) By extreme and outrageous conduct- beyond bounds of decency
 Two factors that help establish this
o Relationship between the parties (esp abuse of power)
o D is aware of P’s particular sensitivities and exploits them
 Also look to severity and regularity of the conduct (Bruce, abusive boss, not Jones)
 Mere insult is not sufficient
3) Causes emotional harm to D
4) That is severe (beyond what reasonable person can be expected to endure, not for harm to
esp vulnerable P unless D knows, usually must be severe enough that P sought medical attn,
SOME cts: distress must cause physical manifestation)
a. Does NOT apply when exercising legal right (e.g. divorce)
b. Limited transferred intent: Third party/bystander IIED (NOT Long, wife seduced,
failed “presence requirement”)
o P can recover if
 A) present (and defendant knows that P is present…because defendant must
be substantially certain he will cause severe emotional distress to P )
 B) related to party OR suffers actual bodily harm
 Courts reluctant to recognize this tort- high standards
 Actual damages are required- nominal damages will not suffice
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Affirmative Defenses to Intentional Torts
“Privileges” based on P’s conduct
RS § 63: Self-Defense by Force NOT Threatening Death/Serious Bodily Harm:
(1) Actor can use:
a. reasonable force (must be proportional)
b. not intended to inflict death/serious harm
c. to defend against H/O conduct which he reasonably believes another is about to
inflict intentionally upon him (or 3rd party, RS 76, if D (1) reasonably believes 3rd
party would have self-defense privilege and (2) D’s intervention is necessary for 3rd
party’s protection) (Touchet, words not sufficient threat)
d. NO duty to retreat (majority)
e. NO need to comply w/command to escape injury
f. NOTE: applies to cover “discipline” privilege in schools, as long as shown corporal
punishment wasn’t unreasonable/excessive
RS § 65: Self-Defense by Force Threatening D/SBH
(1) Privileged if actor reasonably believes that:
a. Other about to inflict intentional contact/bodily harm AND that
b. He is thereby in peril of death/serious injury which can ONLY be safely prevented
by immediate use of such force.
(2) Privilege DOES exist even if actor believes he can avoid injury by:
a. Retreating if attacked within his dwelling place
EXC: if it’s the dwelling of other too;
b. Permitting other to intrude in his dwelling place; or
c. Abandoning an attempt to effect lawful arrest.
(3) Privilege does NOT exist if actor believes he can avoid injury by:
a. Retreating if attacked in place OTHER than dwelling; or
b. Relinquishing exercise of any right/privilege OTHER than his privilege to prevent
intrusion of dwelling or to effect lawful arrest.
Arrest and Detention: RULE CHOICE, up to legislature—
Trad. Common Law: prop owner can detain thief “at his peril” (liable for false imprisonment if turns
out they didn’t commit crime). Firm rule
RS 2d: prop. owner can detain thief on “reasonable belief” in reas manner for reas time but must be
“on premises”. Raises question but “remains silent” on whether detaining can include off-premises
vicinity. Flex standard
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Statutory: e.g. WI statute allowing off-premises chase if “reasonableness” requirements are met
(Menard, Inc)
Defense of property: NOTE: trumped by necessity (e.g. docking boat)
RS § 77: Defense of Possession by REASONABLE Force NOT Threatening D/SBH if:
a. Intrusion isn’t privileged or other intentionally/negligently causes actor to believe it’s
not privileged; AND
b. Actor believes intrusion only preventable by force used, AND
c. Actor has 1st requested other to desist or believes request will be useless/substantial
harm will be done before request can be made.
RS § 84: Use of Mechanical Device NOT Threatening D/SBH if:
a. Use of device is reasonably necessary to protect from intrusion; and
b. Use of device reasonable under circumstances, and
c. Device is one customarily used for such purpose OR reasonable care is taken to make its
use known to intruders.
RS § 85: Use of Mechanical Device Threatening D/SBH: Privilege exists only when ACTOR would
have privilege to prevent intrusion by intentional infliction of such harm if present. Graves/Katko
(deadly/SBH force by act or device only ok if intruder threatens w/same, making force
“reasonable”/proportionate).


Effect of reasonable mistake by D varies
o Mistake as to danger- if D’s mistake is about whether force is necessary, D is
protected by reasonable mistake
o Privilege- but if the owner’s mistake is about whether the intruder has right to be
there, the use of force will not be privileged
Deadly force
o May use deadly force only where:
 Non-deadly force will not suffice
 AND the owner reasonable believes that without deadly force, death or
serious bodily harm will occur
 i.e. use of deadly force allowed against a burglar
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Consent
1. Express and conduct complies with terms
2. Implied from “reasonable person” standard and conduct
a. EXC if person has taken steps to make contrary intention known (e.g. posting “no
trespass” sign = no RP consent to solicitors)
b. May disadvantage those w/limited cultural/linguistic knowledge (O’Brien, vaccination)
c. Medical consent implied usually in emergency situations where consent can’t be
obtained (Miller, resuscitated baby, Miller, drunk patient)
3. Substituted consent: may be a jury Q (e.g. Harvey, mother consenting for adult son under
anesthesia)
4. Scope: what’s “reasonably expected” in course of what is agreed to (e.g. medical procedure,
Kennedy: reasonable physician intervention for wellbeing within area of “original incision”,
NOT stomping on foot after basketball game)
Does NOT apply when:
(1) Duress (may be jury question, e.g. student/professor)
(2) Fraud (Johnson, STD where D knows other doesn’t know)
(3) Lack of capacity (minors, mentally disabled, under influence)
(4) Conditional and condition exceeded (e.g. Ashcraft, non-family blood transfusion, Duncan,
non-authorized drug given)
(5) Policy decision to preclude (Robins, discussion of whether to omit for inmates toward
jailors)
(6) Revoked (must be while D still has time to alter conduct)
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Privileges Not Based on Plf Conduct
1. Arrests/searches: officers may enter land to execute searches/warrants, does not incl
privilege to invite media
2. Public rights: user of public utilities; public accommodations laws, privilege to enter land to
reclaim one’s own goods, and limited privilege of free speech in shopping malls
3. Necessity
RS § 196: Public Necessity: Private party has privilege to enter land in possession of another if
actor reasonably believes it to be necessary to avert imminent public disaster.
*May involve breaking/entering or reasonable force against possessor if it appears
reasonably necessary
*Does not involve compensating owner, Surocco; however, when govt authorities acting in
official capacity cause property damage in emergency to mitigate disaster, they may have to
compensate for “taking” (differs by state), e.g. Wegner (Mpls policy grenading house)
RS § 197: Private Necessity: In case of emergency, private actor has:
(1) Privilege to enter land of other if it appears necessary to prevent serious harm to:
a. Actor or his land/chattels (Ploof)
b. Other or a 3rd party UNLESS knows 3rd party wouldn’t want him to
(2) If entry is done for benefit of actor/3rd party, actor liable for any damage unless entry is
caused by tortious conduct/contributory negligence of possessor.
--Rationale: forcing party to internalize the externality cost, deterrent/economic goal of rule
(sacrifice cheaper asset to make efficient choice), Vincent.
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Negligence
Generally, imposing on others an unacceptable degree of risk of injury, failure to take precautions
moral blameworthiness
ELEMENTS OF NEGLIGENCE
1) Duty
2) Breach (small “n” negligence)
3) Factual cause
4) Proximate cause
5) Damages
Institutions of Negligence Practice:
(1) Litigation finance—the attorney fee is contingent, usually 25-50%. In large, time-consuming
cases, there must be high pain/suffering or punitive damages to make it worth atty time.
(2) Liability insurance—though auto insurance may be compulsory, policy limit (sum to pay for
injuries) likely too low to cover most serious injuries.
(3) Role of settlement: few trials, but lawyers must have sense of what could be awarded to
ensure good settlements
Duty
Duty to behave like a RPPUTC (to all foreseeable Ps)


The standard of care remains the same under all circumstances (Stewart)
o But if the danger is high, the reasonable person will ordinarily exercise care greater
than if danger is low
o Dangerous instrumentalities: standard remains the same (RPP), but amt of care so
provided changes (Stewart, gas tank blew up)
o Sudden emergency doctrine- in midst of crisis, a RPP may not be thinking clearly,
might do things that one cannot do under normal circumstances but standard
remains the same (Bjorndal, car crash)
-- Varies by state but most recognize different instruction rarely appropriate
Reasonable person- objective standard
o Has same physical characteristics/disabilities as defendant
 Yet expected to know your handicaps and exercise the care of a person with
such knowledge (i.e. someone with epilepsy shouldn’t drive)
o Average mental ability (not deemed to have mental capacity of defendant)
 Individual mental handicaps are not considered (i.e. low IQ no excuse)
o Same knowledge as average member of community
 Yet defendant with knowledge superior to that of the average person to
required to use that knowledge
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Particular Standards of Conduct: Exceptions to General Rule (specialized trumps general)
What Circumstances Count? (constitute a defense/specialized rule)
Counts
Does Not Count
Children
Child doing adult things
Superior skill
Insanity
Physical disabilities
Intoxication
Emergencies
Mental disabilities
Child standard of care- specialized rule
 Duty for a child is to exercise the same care as a reasonably careful child of like age,
intelligence, experience, acting under similar circumstances
o Subjective standard used for children is more pro-defendant than adult standard,
evid of mental/emotional deficit considered (unlike adults)
 EXC: children are held to adult standards if child engages in adult activity (Robinson,
snowmobile, vs. Putney, golf cart: determine “adult activity” by who does it/danger level)
 EXC: Some courts say that children of very young age (under 3, RS 10 says 5) are incapable
of negligence
 EXC: minority approach: where children > 14 = rebuttable presumption in favor of
negligence, children 7-14= rebuttable presumption against capacity, children < 7 =
incapable of negligence
Knowledge and Skills (RS 12):
If actor has knowledge/skills exceeding those of others, they must be taken into account in
determining whether he/she acted as a reasonably careful person, though instruction remains
same (Cervelli, professional trucker, Hill, tractor operation, drs must report own symptoms
properly). If actor is below avg judgment/knowledge, it’s generally ignored.


Intoxication NOT an excuse
EXC: sometimes for adult learners who cause harm to teachers
Disability (RS 11):
(a) Conduct of physically disabled actor negligent only if conduct doesn’t conform to that of a
reasonably careful person w/ same disability (NOTE: old age not in and of itself considered
a disability).
(b) Conduct during period of sudden incapacitation resulting from physical illness negligent
only if sudden incapacitation was reasonably foreseeable (e.g. seizure/didn’t take meds,
foreseeability often a jury question)
(c) Actor’s mental/emotional disability not considered
Mental Disabilities- no specialized rule
 Held liable for intentional AND negligent torts
 Policy reasoning
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Allocates losses between two innocent parties to one who caused the loss
Provides incentive to those responsible for people with disabilities and interested in
their estates to prevent them from causing harm to others and restrain those who
are potentially dangerous
o Removes inducements to fake mental disability
o Avoids administrative problems involved in courts and juries attempting to identify
and assess significance of actor’s disability- too difficult to draw line between
mental deficiency and variations of temperament, intellect and emotional balance
o Forces people with disabilities to pay for damage they do if they “are to live in the
world”
EXC: If someone is mentally disabled, institutionalized, and hurts a caregiver not liable
(Rusk)
o
o

Insanity- no specialized rule
 MAJORITY rule= Mental illness is never a defense. Insane are held to same standard as
everyone else.
 MINORITY rule- treat sudden insanity same as sudden physical incapacity (Breunig (sudden
delusion while driving)
Using Statutes to Define Duty: Statutory Standard of Care (RS 14)
Negligence per se: When a safety statute has sufficiently close application to the facts of the case
at hand, an unexcused violation of statute by defendant is “negligence per se” and that conclusively
establishes that D was negligent (breach and duty of care satisfied (some states: only breach
satisfied); still need to establish causation and damages).
 Used when:
1) P is in class of persons that statute protects (not usually gen pop but sometimes, e.g.
person bit by non-quarantined dog whether actually rabid or not) AND
2) P’s injury is class of harms statute was designed to prevent (e.g. not selling ammo to
someone <21 who commits suicide)
3) [Inferred by cts to allow civil COA when statute itself is silent as to civil liability on top of
public-law penalty, so somewhat discretionary, O’Guin: read “protecting health” to cover
“safety” of landfill]
 EXC: D’s violation of statute is excused when:
o Violation is reasonable due to incapacity (i.e. youth, blindness)
o Actor neither knows nor should know of the occasion for compliance (i.e. tail light
goes out without driver’s knowledge)
o Actor is confronted by emergency not due to his own misconduct
o Compliance would involved greater risk of harm to the actor or to others
o Violation due to confusing way requirements of statute were presented to public
o Actor DOES exercise reasonable care in trying to comply w/statute
o NOT an excuse that D is unaware, careless (Impson, forgetting intersection) or
thinks it’s unwise
 Statute prescribes precise contours of reasonableness
o Rather than, D has duty to act like a reasonably prudent person unlike like
circumstances, now, D has duty not to sell ammo to anyone under 21 (in this case,
only issue is age- if P is under 21, D is negligent)
 Licensing: may or may not be neg per se (e.g. YES furnace permit when fumes harm
someone, NO motorist moving and not having new license yet). Look to whether regulation
represents legislation on “how to do something” (usually not met).
10
Alternative Duty Standards

Special duty standards
o Land possessors
o Medical and other professionals
o No duty- immunities
o Duty to act affirmatively
o Duty to control third persons
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Special Duty of Possessors of Land
NOTE: 50% of states still have these categories
--Some retained ltd trespasser duty but abolished licensee rule (hybrid)
--Others redefined boundaries of categories (e.g. MD “bare licensees”, like hunters, treated
as discovered trespassers)
50% of states follow Rowland and have substituted a general RPP duty of care
(rationale: old rules out of date, lead to wrong results, too complicated)
What kind/category of entrant is P?
1) Invitee- person who enters land in response to express/implied invitation
a. Business invitee- on premise for pecuniary benefit of possessor (customer,
employees, incl mail carriers, garbage disposal, census taker, health inspector)
b. Public invitee- on premise held open to general public
i. Two may overlap- i.e. shopping at supermarket
 Loses invitation if acting beyond scope/area of permission (Gladon, becomes trespasser (no
owner consent) or licensee (consent))
 Duty: to use ordinary care in keeping property reasonably safe for invitee
 Duty includes duties owned to licensees (to warn of non-obvious
dangerous conditions known to landowner and to use ordinary care in
active operations on property) + duty to make reasonable inspections to
discover dangerous conditions and make them safe
 “make them safe” = usually warning is sufficient
 EXC: open/obvious danger (O’Sullivan, pool dive)—some cts wait
to apply this as CF. Does NOT apply if P has no choice (icy walk) or if
P likely to be distracted (supermarket spill). Alternatively, some
juris say duty exists but no breach b/c so obvious, making it a
question of whether harm was foreseeable even if danger is obvious
(e.g. construction balcony w/o railing, bar at top of stairs).
2) Licensee- enters with permission but not for pecuniary benefit of owner, e.g. social guest
 Duty: to warn of dangerous condition known to owner that creates unreasonable risk of
harm and licensee unlikely to discover
 NO duty to inspect for defects or repair known defects
 Duty to exercise reasonable care in conduct of “active operations” for
protection of licensees known to be on property
 Incl firefighters/police (policy decision, can’t recover for failure to
inspect/repair)
3) Trespasser- no permission
o Undiscovered trespasser- No obligation to discover and no duty of care owed
(Palsgraf applied to land possessors)
o EXC: there is a duty to refrain from willful/wanton injury
o EXC: must exercise reasonable care for flagrant trespasser who is imperiled and
helpless OR unable to protect themselves
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4) Discovered trespasser- must behave with ordinary care
i. May arise b/c of frequent trespass on limited area (know trespass likely)
1. Reasonable care to make premise safe or warn of dangers
ii. Child trespasser- see below for Attractive Nuisance Doctrine
Attractive Nuisance Doctrine (majority): May be applied to abandoned cars, lumber piles, sand
bins, etc. Usually applies to children of “tender years” (contra new Amtrak case, 17 yr olds!). D
liable to harm to trespassing kid if:
(1) D knows/has reason to know kids likely to trespass
(2) D knows/has reason to know condition involves unreasonable risk to kids
(3) Kids don’t realize risk due to age
(4) Utility to possessor of maintaining risk and burden of eliminating danger < risk to kids
(5) D fails to exercise reasonable care to eliminate danger/protect kids (Stanley, pool-pond)
EXC: a. conditions essential to landowner
b. kids over school age (contra Amtrak)
c. (some juris) “common hazards” where duty owed but impossible to protect, e.g.
fires/pools
Recreational Uses: most states passed statutes limiting liability of landowners (to wanton harm)
who open land to non-paid, not-expressly-invited public recreational use (govt wants to
encourage). Interpretive difficulty (how far… parking lot? Bathroom? And what about P’s
purpose… business trip and pleasure? Going home?)
Undiscovered
Trespasser
Discovered
or
Anticipated
Trespasser
Licensee
Invitee
(present w/
permission but no
benefit to land owner)
(present for benefit
or person on land
open to general
public)
Must be within scope
of invitation Gladon
(train case)
Activity
No Duty
Ordinary Care
Ordinary Care
Ordinary Care
Static
Condition
No Duty
Limited duty to
protect against
a condition if:
Duty to protect
against a (1)
concealed condition
(2) the existence of
which is known
Ordinary Care + a
duty to conduct a
reasonable
inspection to
discover and correct
hazard.
(refrain from
willful/reckless
injury)
(1) artificial,
(2) highly
dangerous, (3)
concealed and
(4) known to
landowner
EXC: recreational
use
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Exc: peril
Duties of Medical and Other Professionals
These rules extend to other professionals, such as architects, lawyers, etc., p. 355-56
Medical Professionals
 Standard duty of care in medical malpractice= custom of the profession, care of
reasonably careful/skilled physician of class of drs to which he belongs (BUT when medical
authority divided, no liability if choice of “considerable #” of med professionals)
 Therefore, always need an expert
o Jury= lay person with no expertise in the area need expert to explain, testifying to
practice standard, not own practice (Walski)
o Specialists: compare to other drs in specialization, not medicine generally
o Referrals: often req to refer where standard of care so reqs
o EXC: in obvious cases (i.e. surgeon amputates wrong arm)- no expert testimony
needed
 Alternatives (Locality)
o Strict locality rule: (maintain in some states), which measures D’s conduct against
that of other doctors in the same community. Growing movement in legislatures to
make malpractice suits harder. Issue: conspiracy of silence.
o Modified locality rule: standard is care exercised by ordinarily careful physicians
at time and in similar localities

Duty to disclose risks of surgery- see informed consent
Other Professionals
 Education- acceptance standard across country for all education levels= NO COA for
educational malpractice (Loyola, but see dissent, maybe for unfulfilled K?)
 Non-medical practitioners (e.g. chiropractors): held to their school of belief, not med
standard
 Mental health care providers (i.e. clinical psychologists, social workers)- owe duty of
customary practice
o Compared to each other, not psychologist to social worker
 Clergy- no duty or standard of care
o Yet as Pastoral role- similar to mental health professionals (clergy malpractice)
“Malpractice Mess”—who pays for suits? Complete negligence unavoidable, but no alternative to
litigation system (e.g. trying to deal directly with dr/hospital, must go through cts and sue
insurance). Alternative approach (vaccines, New Zealand)—set aside some money tacked onto
every transaction for fund for those injured, program does not try to sort out claims of bad luck vs.
negligence but has list of recoverable injuries based on severity/frequency. If not satisfied one can
sue but people usually don’t. Benefits: predictable, evenly distributed, keeps vaccine cos in
business (otherwise they’d be bankrupted by suits), downsides: if applied broadly (e.g. to too
14
many/all injuries), it would exceed cost of universal coverage, doesn’t allow P emotional
satisfaction of day in court. Caps? Limit liability but remains frustrating and not uniform in fair
compensation (like current litigious system).
*Problems w/custom standard? Reduces innovation (don’t want to try something new b/c won’t
measure up to standard of care), creates problem of conspiracy of silence, reduces tailored care by
patient, progressive over-care overall. Customary standard applies to all practices (e.g. lawyers,
accountants, etc).
Res Ipsa in MedMal (Use to Show BREACH of Medical Duty)
1) Injury causing event does not occur in absence of negligence
2) Injury was most likely caused by D or instrumentality in exclusive control of D
a. May be “constructive control/right of control”, ALL Ds who had shared control over
body/instrumentality causing injury have “control” unless D shows proof to
contrary, Ybarra (rationale: P in worse position to prove, encourage drs to tattle)
b. NOT exclusive control when attributable to frailty/previous condition, P must offer
evid to exclude these to show MOST likely dr’s fault (Kelly, failed b/c of preexisting
pre-enema probs)—note this makes it hard for P who went to dr for prob in 1st
place
c. Usually need expert testimony UNLESS obvious breach (e.g. sponges left)
15
Informed Consent
Informed consent- owes patient duty to disclose risks of non-negligently performed surgery so
patient can make intelligent decision. Most cts treat as negligence, a few as battery (ins may not
cover). EXC: emergency situation threatening P’s life
ELEMENTS
1) Physician failed to comply with the standard for disclosure
a. Disclose what doctors customarily disclose (Wooley, MA)
 Usually requires expert testimony
 Rationale-professional standard since malpractice case, may be therapeutic
reasons for withholding information, and adds little burden to P since must
produce medical testimony on other issues
 Overlooks purpose of requiring disclosure, protect patient’s right to decide
for himself
b. (Maj.) Disclose what a reasonable patient would want to know (Harnish, Marsingill)
 General Rule: physician owes to his patient the duty to disclose in a
reasonable manner all significant medical information that the physician
possesses or reasonably should possess that is material to an intelligent
decision by the patient whether the undergo proposed procedure
 Information a physician reasonably should possess = information possessed
by the average qualified physician (practicing in that specialty)
 What physician should know involves professional expertise and can
be proved only though testimony of experts
 Extent to which he must share that info with his patient depends upon what
information he should reasonably recognize as material to patient’s decision
 Material determination is one that lay persons are qualified to make
without aid of expert
 Situations that call for non-disclosure- complicate procedure or render unfit
for treatment
c. Disclose what the particular patient would want to know
2) The undisclosed risk occurred and harmed the P
3) Causation: (maj: objective): the P + a reasonable person UTC (some cts: judged by reasonable
person in light of P’s personal fears/beliefs) would NOT have consented if informed
Specific examples:
1. IC = risks of procedure itself
a. NOT dr’s own success rate (Wlosinski), contra Johnson, patient entitled to info that more
successful/experiences drs available
--But can’t LIE, state statutes prevent fraud
16
b. Must disclose risks of turning down procedure (Truman, pap smear)
c. If outside procedure itself, use practice standard (e.g. NOT life expectancy, Arato)
IMMUNITY= no duty
Family Immunity
1. Spousal: nearly all abolished, some partially abolished (e.g. immunity from negligence but
not intentional torts or motor vehicle accidents)
2. Children: majority abolished BUT broad discipline/supervision discretion remains, some
partially abolished (not applied in intentional torts/motor vehicle accidents, Rousey)
--NOTE: doesn’t apply where duty is to world at large not kid (e.g. Hoppe, exploding nail gun,
duty not to negligently maintain explosives applied to all potential victims)
a. No duty approach (Augsburger, cabinet)—doesn’t apply if intentional tort
b. RPP (small minority)
c. Limited duty approach (Goller, tractor), immunity except where:
i. exercise of parental authority (discipline)
ii. exercise of parental supervisory discretion (food, clothes, etc)
3. NOTE: cts divided as to “who counts” as family
Charitable Immunities
 Mostly abolished, some retain/partially retain (e.g. neg but not willful/wanton acts,
abolished only as to hospitals, etc)
o Some cap damages by statute
o No immunity for paying patients in hospitals/immunity for charity patients
o Statutes MAY provide immunity for individuals engaged in charitable activities, e.g.
fed statute for nonprofit volunteers)
o Traditional view: IMMUNITY, EXC: non-trust funds (ins), administrative neg, claims
by paying users, collateral commercial acitivity (e.g. YMCA ski trip), intentional torts
Federal and State Government Immunities
1. Federal Immunity: FTCA abolished after WWII
FTCA Cases:
1. Governed by state law
o E.g. in MD, no recovery if hit by federal vehicle while jay-walking because it’s one of
the five states with CN
2. Key conditions on waiver of immunity:
o Before filing suit in court, P must submit claim to govt agency involved
o Suit is not permitted until agency has refused payment or has delayed over six
months in making a decision on it
o Bench trial- no jury
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o Fed ct
o No punitive damages
o No SL under FTCA
3. EXCS from bar on immunity:
o Intentional torts (possible exc: “fostering the risk”, e.g. letting off-duty officer take
govt rifle off base)
o Government activities (e.g. mail delivery: immunity for lost letter, NO immunity for
negligently-driven mail truck)
o All claims arising in foreign countries
o Combatant activities of military
o Feres Bar: judicially created
 “Incident to service” injuries, interpreted very broadly (e.g. Jefferson, towel
in abdomen not recoverable)
 Does NOT bar claims by spouses/children on base
o Discretionary functions (Whisnant, poor maintenance not immune)
--Note: no immunity when govt disregards own regulation (Loge, vaccine)
 Apply Gaubert test:
a. Was challenged act discretionary (did govt have a choice of action)?
b. Was challenged act one Congress meant to protect as a policy decision
(design or implementation)?
2. State Immunity: abolished/limited by legs in 60s/70s
o Most states follow federal model and waive generally, retaining it in particular,
specified situations
o Smaller but significant number work in reverse, retaining immunity generally but
abolishing it in particular, specified situations
o Smaller number retain virtually complete immunity (e.g. AL)
3. Municipality Immunity (corps chartered by sovereign): may be separate or same as state rules
 Traditionally accorded immunity (public duty doctrine: no private person can recover)
o EXC: Liable for takings of property
o EXC: Liable for nuisances such as unsanitary garbage dumps, and for torts
committed in course of proprietary activities, as distinct from gov’t activities
o Fire/police: immune from decisions implicating resource allocation
EXC: when they have undertaken responsibilities to specific members of the public,
creating a “special relationship” voluntarily assumed duty to exercise ordinary
care in performance of task (DeLong, dispatcher fail)
EXC: NO immunity when improperly carrying out policy decision (Harry Stoller,
firefighter fail)
4. Public Officials Immunity: Applies to public officer carrying out his official duties when they
involve discretionary acts done without malice or improper purpose (no immunity for ministerial
acts- operational level)
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Nonfeasance/Misfeasance
Nonfeasance- doing nothing = no liability (Yania, ditch drowning)
o Misfeasance- something affirmatively done
o Nonfeasance- whether you are obligated to take the action in the first place
Exceptions and Qualifications to No Duty to Rescue
a. Voluntary rescue: If you choose to rescue, you must rescue like a reasonably prudent
person under similar circumstances while other is in your custody + when terminating
rescue
a. Cannot make a person worse off by abandoning the rescue AND if other is in
immediate peril at time of termination must show reasonable care in terminating
(Wakulich, Goldschlager)
b. Yet if this rescue is danger to yourself, then you don’t have to rescue
EXC: Good Samaritan laws immunize voluntary rescuer in some states, sometimes
limited to professional rescuers/meds who gratuitously aid
b. Special relationship duty to rescue person in peril (Farwell v. Keaton)
a. Parent-child; school-student; doctor-patient; custodian-one in care; employer-ee;
landowner-invitee; carrier-passenger; innkeeper-guest; shopkeepers-patrons (and
other relationships in places of public accommodation).
b. NOTE: NOT exhaustive, cts can add discretionarily (Farwell, friend in car/imposed
duty, vs. Faltys, frat bro drowning/not imposed)
c. Own conduct (RS 39, negligent or innocent) places another in peril (or contributes, e.g.
giving gun to assaulter) = duty to use reasonable care to aid/assist that person
--NOTE: other’s helplessness not req’d, must take steps to mitigate risk created if in better
position to render aid than injured person (jury Q of duty when in position to influence
tortfeasor’s rescue/position to influence outcome, B<PL)
--Can be a case-by-case consideration in some states, e.g. Mairs (NJ), where friends w/cell
phones did not call for help for hit motorcyclist
d. Statute/ordinance requires a person to act affirmatively for the protection of another
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Duty to Protect From Third Persons (TPSH)
Generally no affirmative duty to protect, EXC where:
1) Special relationship (what counts?
--Iseberg, partner shooting, no SR
--Schools: duty where supervisory + acting in loco parentis (Marquay, principal not other
teachers liable in sexual abuse case). Some states: limited to on-premises/school hrs
--Colleges: no duty (no SR)
--Landlords: no duty to protect against 3rd party attacks or maintain security measures
(other cts: must maintain security employed when tenant became a resident, Funchess).
--Hospital: duty to take reasonable measures to protect domestic violence victim (McSwane)
2) Foreseeable harm (how much?)
o 4 Approaches to Foreseeability
 Specific harm- duty only when D is aware of specific, imminent harm to P
 Prior similar incidents duty if past history of criminal conduct put owner
on notice of risk to P
 Totality of the circumstances- takes additional factors into account, such
as the nature, condition, location of the land, plus any other relevant factual
circumstances bearing on foreseeability
 Balancing test (cost benefit analysis)- duty when foreseeability of harm and
gravity of harm > burden of imposing a duty on business (NOTE: this
misconstrues “breach” element, Carroll Towing. Shifts burden of security
from public (police) to private enterprise (pay for security), only a few
states: CA, TX, LA, Posecai)
*Still need to prove breach (consider McSwane)
*Duty may not matter after damage calculation (political, states vary) (Reichert, owner had
duty to protect patron from violent invitee, but if not joint/several liability, % liability may yield
low damages)
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Duty Based On Relationship with 3rd Party Sources of Harm (TPSH) (RS 41)
1. Duty of reasonable care when risk posed by 3rd party within scope of special relationship
2. Special relationships include:
a. Parents/children
--Note: only duty to control specific/present dangerous behavior that parent knows/should
know of in exercise of reasonable care, relies on foreseeability of specific harm, e.g. not when
historically violent kid shot another
b. Custodian/those in custody (Dudley, halfway house duty to victim of violent ex-con)
c. Employer/employees when employment facilitates employee’s causing harm (e.g.
employing serial assaulter as flower deliverer w/o doing background check)
d. Sometimes: landlord/tenant
e. Mental health professional/patients (Tarasoff)
--Note: reasonable care, also still relies on foreseeability of specific harm caused to usually
readily-identifiable victim (Thompson—states disagree)
--Other drs: Tarasoff duty may apply, e.g. duty to warn of dangerous effects of meds, duty to
warn of how to avoid spreading communicable disease, NO duty (even prohibited) from
revealing AIDS patients’ identities to possible partners
--Criticism: unworkable b/c therapist can’t predict (administrability), conflicts
w/confidentiality duty
--Codified/rejected/expanded (to cover bystanders who see confided-of violence, duty to
prevent suicide) depending on jurisdiction
f. Negligent Entrustment: giving/selling dangerous item to TPSH who D knows or should
know will use it in a dangerous way (e.g. selling gas to drunk driver, Brigance: alcohol to
drunk people/minors)
i.
some cts reject alcohol provider liability (traditional)
ii.
some cts allow duty to drinker, others bar
iii.
some cts allow social host liability
iv.
some states have dram shop statutes: some expressly impose liability upon
alcohol dispensers, limiting to certain kinds of sales (e.g. minors/drunks) or
requiring higher showing than mere negligence in sale, some limit to on-premise
consumption (not liquor stores); OTHER EXTREME: some juris immunize
alcohol providers for neg entirely OR say no liability w/o statute (leg decision)
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Breach (small “n” negligence): D acted “unreasonably”
--Foreseeability plays a role for precautions: RPP obligated to take precautions more often when
risk is more likely.
--Note: if 9/10 times RPP would avoid risk, jury must find breach (not human fallibility)
--Note: where AUC is inadvertent (not balanced and ignored), B = cost of greater attention (matter
of common sense for jury)
Steps:
1. Identify AUC (be specific, e.g. failure to make Johnene leave car not failure to drive safely)
2. Ask if there’s a factual dispute about whether act/omission occurred
3. Identify theory of why AUC was unreasonable:

How to evaluate reasonableness:
o Assessing risk and costs
 It is usually reasonable to do what is customary (Mathew)
 It is usually reasonable to value life over property (Mathew)
 It is usually reasonable to avoid greater damage (Mathew, not Boston Edisoncontrived)
 It is reasonable to take cost-justified precautions (Boston Edison)
 NOT reasonable to warn against obvious (Stinnett)
 NOT reasonable to protect people who can protect selves (Stinnett)
 Evidence of custom is admissible but not conclusive (TJ Hooper, custom may lag)
--Departure from own custom not conclusive (may have been excessively careful)
--Bears on: foreseeability of harm, whether D knew/should have know of risk, that
risk was unreasonable w/o precaution, unreasonable in community opinion, and
feasibility of safety option
--Defenses: question custom, show specific conduct posed less risk than other
activities of kind, D adopted alternative methods to reduce risk
--Can introduce evidence as P sword or D shield
--Expert: testifies as to safety/cost, not what’s reasonable
 Passage of time (needed for slip and fall, Thoma)
--Note: slip’n’fall theories: (a) D created condition, (b) D discovered/should’ve
discovered condition, (c) in D’s mode of operations it was foreseeable a dangerous
condition would be created + D didn’t take precaution to avert (e.g. grocery display)
--Not clear liquid, Stinnett bars
--Constructive notice to D (time on floor) hard to est, some states ease P burden(e.g.
need pattern of conduct)
 Violation of a statute (negligence per se)- establishes duty AND breach
--Note: safe custom may trump weak ordinance (Duncan, wood for steps)
o
Hand Formula B<PL (Carroll Towing), esp. warning (low B)
B= burden (may incl risk created by precaution, e.g. looking ahead while driving)
P= probability of loss
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L= cost of loss
Note: memory of RP req’d (e.g. not reasonable to forget hole in yard could trip
someone, but even memory has cost (reminders/staffing/etc)
Note: may be hard to determine cost, may need to account for COST of getting cost
1. Evaulating risk-utility assessment (p. 157): (1) it provides deterrence in “right” amount (proportion)
and maximizes community resources (community richer if members do not spend $10 to save someone
$5). (2) Some say basic liberties of freedom of action and security should take precedence over
considerations of wealth. (3) There are alternative ways juries may judge negligence: (a) intuition, (b) by
statutory prescriptions, (c) hard-and-fast judicial prescriptions, (d) custom, (e) moral rules.
Zipursky, “Sleight of Hand”: Hand formula cannot be a uniform field theory of breach (negligence).
“Momentary error” cases do not make sense (e.g. waiter who drops hot soup), trying to calculate the
burden is too difficult. Jury instructions also do not match up. There are other ways to conceive of
negligence as well, e.g. deontological/rights based perception of reasonableness (relational carefulness
to others, Golden Rule), virtue theory (template of a virtuous “prudent” person, to be negligent is to fail
to be virtuous), “civic competency” (Zipursky’s preference, mix-and-match from other theories)
E.g. p. 196, kid hit in dark/rain driving 20 mpg. B<PL guides argument, better to argue B of
honking/flashing lights too low NOT to be unreasonable, not that driving differently was better
Res Ipsa Loquitur- “the thing speaks for itself”, circumstantial evid (to establish breach)
--Note: P may use as one of multiple theories (specific neg/RIL)
1) Injury/accident is of type that ordinarily occurs through negligence
a. Appeal to common sense (Byrne, flour barrel, Koch, Cosgrove)
b. Exclude other possibilities (Warren, car rolled down hill)
--Judge Posner’s bus example: RIL not a free ticket out of P burden to prove: if 51%
of buses owned by company A, not RIL b/c P could undertake investigation to find
out who was actual cause (unless P shows investigation impossible)
c. Expert testimony (Persinger, toddler ankle break)
2) Injury/accident usually caused by person in D’s position (instrumentality in exclusive
control of D—P must show MORE probable D was cause, Barbie, mullion bar)
--Flexible rule, where D was probably neg and contributed, RIL allowed (Giles)
--2+ Ds in serial control = RIL allowed (Collins, ambulance/hospital yielded broken leg)
3) P did not contribute to the injury
--Depends on juris but most: less rigid now, enough that D was A neg party, Giles

Elements above different from RS elements:
o 1) event is of a kind which ordinarily does not occur in absence of negligence
o 2) other responsible causes, including the conduct of the plaintiff and third persons,
are sufficiently eliminated by the evidence
o 3) the indicated negligence is within the scope of the defendant’s duty to the
plaintiff
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Factual Causation (but-for breach, no injury)
Imagine alternate situation where defendant doesn’t commit the breach. Infinite causes: need to be
A cause not THE cause (Hale, bushes, Salinetro, xray pregnancy).
1. Indivisible Injury
o
Merged (“duplicative”) causes- occurred at same time (or don’t know which occurred
first) to bring about an injury, each of which would have been enough by itself to cause the
harm
 Substantial factor test: both Ds liable if each breach was a substantial
factor sufficient by itself to cause the harm (Landers, 2 cos not salt packet)
 Covers multiple causal sets (e.g. if A, B, and C lean on car and only 2/3 are
needed to push over cliff, all 3 liable. RS no comment if A responsible for
2/3 itself and B only 1/3 where 2/3 needed).
 Burden shifts to D to show he was not a substantial factor
 Ct may excuse de minimis contributor (e.g. faulty dam when flood)
o
Sequential causes
 Loss of chance doctrine/loss of opportunity doctrine
 P only receives damages for lost opportunity (time harm is accelerated, higher
risk, lost opp), NOT entire injury if D deprives P of substantially better
outcome, and V SMALL risks may not be compensable.
 Medmal form of recovery that allows P, whose preexisting injury or illness is
aggravated by negligence, to recover for lost opportunity to obtain a better
degree of recovery
 Causation Tests (p. 214 cancer patient illutration)
a. Traditional:
P burden: 51%+ chance of more favorable outcome than received
Recovery: damages for entire preexisting illness
b. Relaxed
P burden: lower, must show D neg more likely than not “increased harm by
some degree” or “destroyed substantial possibility of better outcome”
Recovery: damages for entire preexisting illness
c. Lost Opportunity (1/2 of states)
P burden: D’s neg deprived P of some chance for better outcome by
preponderance of evid (any % of reduced chance)
Recovery: damages for los opp, not whole injury, damages being
proportional to chance lost
d. Preponderance: no recovery if chance of survival was <50% to start
*See notes on lost opportunity damages below

Sequential/Unascertainable Causes
24



If ascertainable, only preempting cause is “actual cause” (e.g. shooting before
poisoning)
May be a jury question of preempting cause or not (Dillon, was he already
falling to his death (not liable) or would he have survived in injured state
(liable, but only to compensate for ltd earning capacity as injured person)).
Otherwise, in case of 2+ actors, burden shifts to D to show he was NOT a
cause or jointly/severally liable (Summers, hunting)
2. Divisible Injury: each D only at fault for harm he caused, no joint/several liability
Lost Opp Damages:
Proportional damages (lost opp test): e.g. if 40% chance of survival eliminated by D’s neg, P gets
40% of damages if D had caused the death itself. Note: 75% chance gets 75% damages (doesn’t
change to 100% by a preponderance of evidence rule).
Note also: 40% chance that there’s a 30% chance changes quantified analysis, chance of chance
requires preponderance of evidence
Under traditional: but-for cause loss of opportunity often wouldn’t be compensable (e.g. reducing
40% chance of improvement to 20%, wasn’t preponderance of evidence for P claim that recovery
would be greater). Loss of chance theory is more pro-P approach (policy rationale, drs should be
deterred from giving patients less than maximum chance for recovery). --If chance of recovery goes
from 60% to 40%, P gets 100% damages b/c can prove by preponderance of evid
Liability of 2+ Persons (Damages)
A. Indivisible injury
Comparative Fault (P): (most states) in negligence and strict liability cases (not intentional
torts), P recovery reduced in proportion to own fault/D liability correspondingly reduced.
Joint/Several Liability: (traditional) P can enforce 100% of claim against either tortfeasor.
After that, if one D pays more than their share, they can collect “contribution” (proportional
payment from other D(s) for their fault) by cross-claim suit. BUT if one D is insolvent/uninsured/
immune, other D can’t recover contribution payment (has to pay full amount).
Several Liability/Proportionate Share Liability/Comparative Fault Liability: (alternative
enacted by many states by statute) Trier of fact apportions fault, P collects proportional amount
from each D individually. No contribution, if one D cannot pay (insolvent/immune/uninsured), P
suffers loss (can’t collect from other D).
B. Divisible injuries: each D liable for only harm he caused, no fault apportionment needed
C. Agreement: D may be responsible even if his own conduct was not the cause of harm, e.g.
respondeat superior, partners, conspiracies
25
Proximate cause (legal cause, “scope of responsibility”)
D not liable unless a reasonable person in D’s position UTC should have foreseen that his
conduct risked injuries (1) of the same general type that occurred (Medcalf) to (2) a general
class of persons to which P belongs (Palsgraf). Ex ante exercise: determine risk created and
then compare to harm caused, not the other way around (Crenshaw, slipping on shrimp vom). If
can’t determine whether harm was w/in scope of risk created by neg, jury Q. Same rules apply
when determining P’s CF.
 Cardozo/Andrews disagreement dimensions: (1) substance: what’s the limiting principle on
liability? Cardozo: foreseeability, “zone of danger” Andrews: multi-factor test, “practical
politics” (p. 227), (2) procedure/verbiage: where to situate the limiting principle? Cardozo: duty,
Andrews: proximate cause. Most cts agree w/Cardozo to limit by foreseeability, but use Andrews’
locution of proximate cause.
Defining Scope of the Risk:
A. (What) Medcalf, risk is w/in class of risks created by neg conduct
B. (Who) Palsgraf, P is w/in class of persons risked by neg conduct. EXC: rescue doctrine,
danger invites rescue, rescuer w/in foreseeable class of persons harmed—doesn’t count
when not involved to aid, e.g. husband coming to scene to be with wife
C. (How) Manner in Which Harm Occurred: if harm caused is same type/degree as harm
risked to type of victim risked, LIABLE even if exact manner of causation was unforeseeable
(Hughes, kid burned). If harm that occurs is different in degree/kind from harm risked, not
foreseeable (Doughty, burned, but risk of uncovered vat was splash, not explosion; Darby,
death, but risk of open lake was Weils disease, not drowning). Note: latitude in
characterizing, diff sides will characterize unforeseen mechanism differently.
D. (How Much) Extent of Harm: Eggshell skull rule: if extent of harm is greater than
expected, does not reduce liability.
--But must be neg act that would’ve foreseeable cause harm to a normal person, not
something that ONLY harmed b/c of P’s condition
--Rationale: D benefits when P already doomed (Dillon, low damages if reduced capacity
already), should pay for flip side too. Also, take P as you find him: just injuring someone on
the fragile side of the bell curve doesn’t remove foreseeability.
E. (Where/When) Intervening Act (break causal chain or w/in risk created)? D liability
limited to those harms that result from the risks that made the act tortious (RS 34)
1. NOT Superseding if it was w/in risk or connected to it
2. Criminal acts: sometimes supersede, depends on whether w/in risk created (e.g.
Watson, criminal throwing match into gas leak supersedes, vs. Hines, train not stopping
and making woman walk home alone (raped) very risk created)
3. Suicide: e.g. Delaney, gun securing, took case-by-case approach:
26
a. Traditional (most states): suicide IS superseding
b. Exceptions (some): if D’s conduct induces mental illness/suicidal impulse + where
special relationship exists where D knows/should know of risk
c. Case-by-Case (a few): foreseeability based on case facts
4. Negligent Intervening Acts: still liable if D put P in situation of “heightened danger”
that results (e.g. Derdiarian, roadside construction, vs. Ventricelli, trunk)
5. Termination of the Risk: D remains liable until situation has “normalized” after
negligent conduct (Nugent, warning after truck off road, Horton, risk should’ve
terminated when parents got gun caps)
--But resulting harm must still be a “what” risk created (e.g. Sheean, but stopping
illegally not prox cause of passenger injury when sanitation truck hit it).
6. RS 35: Enhanced Harm Due to Efforts to Render Aid: D liable for enhanced harm
due to effects of 3rd party trying to render aid reasonably required (EXC: not
unreasonable efforts to render aid, e.g. enlarging cut)

Foreseeable results, foreseeable intervening force- defendant liable
 Subsequent medical malpractice- original tortfeasor is usually liable for the
aggravation of plaintiff’s condition caused by the malpractice of plaintiff’s
treating physician
 Negligence of rescuers- rescue is foreseeable response to accident or injury;
original tortfeasor still liable when injured person is hurt more by rescuers
or rescuer is hurt (true even if rescuer is negligent)
 Unless performed in grossly careless manner
 Cardozo: “Danger invites rescue”
 Efforts to protect person or property- defendant is liable for negligent
efforts on part of persons to protect life or property of themselves or third
person endangered by defendant’s negligence
 Reaction forces- where defendant’s actions cause another to “react” (i.e.
negligently firing a gun at someone’s foot), liability attaches for any harm
inflicted by the reacting person on another
 Subsequent disease- original tortfeasor liable for diseases caused in part by
weakened condition in which defendant has placed plaintiff in by negligently
injuring her
 Subsequent accident- when plaintiff suffers a subsequent injury following
her original injury, and the original injury was a substantial factor in causing
the second accident, original tortfeasor usually liable for damages arising
from second accident

Foreseeable results, unforeseeable intervening forces- defendant usually liable
o Intervention is neither foreseeable or normal, but leads to the same type of harm as
that which was threatened by defendant’s negligence- defendant liable
 Most courts will find liability here because they give greater weight to
foreseeability of result than to foreseeability of intervening force
 EXCEPTION: When intervening force is an unforeseeable crime or
intentional tort- then it is deemed a superseding force- cuts off defendant’s
liability
 EX: D fails to clean residue out of oil barge, leaving it full of explosive
gas.. Negligence exists because an explosion resulting in harm was
27


foreseeable. Yet unforeseeable bolt of lightning strike barge causing
explosion. D is liable.
o BUT if arsonist caused explosion, no liability.
Unforeseeable results, foreseeable intervening forces- defendant not liable
Unforeseeable results, unforeseeable intervening forces- defendant not liable
Damages
*Must suffer actual harm or injury (Breen) and is expected to mitigate damages (enhancement)
*Collateral source rule: any payment from outside sources to compensate does not alter judgment
against D, may subrogate. Rationale: may under-deter otherwise and P’s decision to self-insure
should not affect D liability.
* Nominal damages are not available in negligence (only in intentional torts)
Compensatory damages- to give you back what you lost
 Economic/pecuniary damages “specials”
 Out of pocket expenditures that have been made or will be made by plaintiff: lost
wages, medical monitoring (controversial), medical expenses, extras?- mowing lawn
 Ct may allow periodic payments instead of lump sum (or “structured settlement”),
lump sums must be adjusted for inflation/investment
 Non-economic/non-pecuniary damages
 Pain and suffering
 More than just physical pain- reduced quality of life, mental/emotional suffering
 Where lawyer fees come from—needed to take case
 Most cases require that person be consciously aware of injury and loss of enjoyment
not separately measured from pain/suffering, McDougald (brain damage) (minority
of cts do allow separately)
 Per diem/”Golden Rule” (cost to trade places)/comparable case measures: allowed
in some cts, not others. Most say no mechanical way to do it, must calculate case by
case.
Punitive damages- punishment/sanction against defendant
 Only for intentional or reckless torts, not negligent torts
 General Rules, p. 796-97:
1. Requires misconduct w/ intent/malice or wanton/reckless disregard (can bring in
negligence case though if D showed conscious indifference to consequences)
2. Purposes: retribution, deterrence, sometimes litigation finance
3. Jury’s discretion determines whether and how much to award. Not per se unconstitutional,
but extreme awards may violate due process
4. Statutes may limit amount, otherwise “reasonable proportion” guideline
5. Comparative fault does not reduce punitive award
6. Awarded for various reasons, e.g. bullying, profit from tort (Owens-Corning)
7. Measuring: reprehensibility of conduct, wealth, ratio rules (compare punitive damages to
potential harm of conduct). Limiting: amount of award or number of cases where they may
be awarded (increased proof standards, single liability statutes, specific malice
requirement, redirecting funds, statutory caps/ratios).
Damage caps- ½ of states have these- “tort reform”
28
--Others have found unconstitutional, overridden by other statutes, used annual cap
increases, only applied to certain claims, or removed in extreme cases
Damage Arguments:
High premiums more correlated to market returns than tort suits
Cap/comparative fault calculations’ timing may drastically impact total amount (p. 788
comparison). Side effects: cts may be more inclined to resolve close Qs of liability for P when
damages are capped (e.g. Sept. 11 litigation)
Arg for abolishing pain/suff damages: Ds will pass on costs of award to consumers, creating
“compulsory insurance”, when most consumers would be better off enjoying cheaper goods and no
pain/suff award if hurt. Plus, taking out own pain/suff insurance would be cheaper than working
through tort suit system. But would there be any deterrent effect then on companies?
*Attys: successful cases subsidize unsuccessful ones, delays compensation (might work on case for
2 yrs before pay), can result in low or astronomical salaries depending on damages. Atty fees not
usually included in award/settlement b/c of contingency arrangement.
*Costs: may be recoverable (usually on appeal) for P
*Damages depend on the person (e.g. hitting homeless person, less damages, women less, etc),
system designed to restore a status quo ante that is unequal
“Six Ways Liability Insurance Shapes Tort Law in Action” Article
1. LI is an element of tort liability for all but the wealthiest potential Ds
2. Contractual limits on amount of LI place a practical limit on the amount of damages a P can
receive
3. Liability is shaped to match available insurance coverage (e.g. rarely intentional torts, neg
framing to get ins to kick in, ins complies b/c required to put individual D interests ahead of
ins interests)
4. LI makes insurers repeat players pursuing portfolio strategies through individual cases
according to their long-term interests in development of tort rules and settlements (e.g.
chilling claims)
5. LI personnel transform tort rules into “rules of thumb” for claims administration that end
up determining real recoverability (and therefore tort rules in action)
6. Negotiations over insurance boundaries drive in-action bounds of tort
inquiries/”development of tort law in action”
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Defenses to Negligence: Contributory Negligence
1. Contributory Negligence= P’s fault is an absolute bar to recovery (Butterfield)
o Doctrine has been abandoned by vast majority of jurisdictions- only 5 jurisdictions
retain this rule (AL, NC, MD, VA, DC)
o Differs from mutiple actors (Landers) by making it a zero-sum P/D game
2. Comparative Fault
a. Pure CF: doesn’t bar recovery but reduces damages according to P’s % neg (e.g. NY)
b. Modified/Partial CF: various conditions
E.g. WI, no bar to recovery as long as P neg NOT greater than neg of D, and
damages are proportionally reduced
E.g. ND, bar if P fault as great as combined fault of all D’s
c. “Equitable and Just” Reduction: (ME only): P’s damages reduced by amount jury
considers equitable and just, not in proportion to fault
*To fight jury award, must be against weight of evidence, one way to
determine (Posner) is to compare cost of non-neg conduct to avoid injury for
each party (Wassell)
E.g. if 70% CF in $100,000 award, recovers $30k in NY but $0 in WI; if 50%: $50k in NY, $50k in
WI, $0 in ND
 e.g. 2-car collision, 1 ran stop sign 1 drunk
A’s damages = $100k, 40% fault
B’s damages = $200k, 60% fault
NY: A gets $60k, B gets $80kct nets out so A owes B $20k (even though B was more
blameworthy, damages change situation)
WI: A owes B $0 (b/c B greater neg), B owes A $60kB owes A $60k
§ 8: Factors for Assigning Shares of Responsibility:
a. Nature of person’s risk-creating conduct [com: how unreasonable UTC, extent to which deviated
from standard, surrounding circumstances, each actor’s abilities/disabilities/awareness/intent],
incl any awareness or indifference w/respect to risks created and any intent with respect to
harm caused;
b. Strength of causal connection b/t risk-creating conduct and harm [com: how attenuated the
causal connection, timing, comparison of risk created and actual harm.]
3. All-Or-Nothing Outcomes After CF
a. If duty breached is to protect D from his own carelessness (Bexiga), e.g. children,
mentally incompetent, repetitive work. P vulnerability important if: D knows of P’s
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disability + P’s risky conduct endangers himself but not others. Stinnett doesn’t apply
when P’s ability for self-care is reduced.
b. If P has an “entitlement”/absolute right to behave as he did (Leroy Fibre), these are
debatable (e.g. entitled to wear expensive jewelry or walk alone in dangerous area?)
c. If P has no duty to be careful as a matter of law (Christensen)
Defenses to Negligence: Assumption of the Risk
Express AR= contractual waiver of D liability (total or ltd). Must be:
o Enforceable (e.g. not fraud/unconscionable/contrary to policy, look to: essentiality
of service (e.g. hospital vs. recreation), other vendors, competitive bargaining, e.g.
compulsory waiver in emergency setting void, Tunkl)
o Scope: must cover AUC (Moore, release was not from neg in general, e.g. planning
course for ATV)
o Signed before injury
Implied AR: may est no duty, affect CF, or immunize D from suit
1. Implied Primary AR: law sets lower standard of care in case of inherently dangerous
activity (than RPPUTC), no duty to reduce risks but duty not to increase risks (Avila)
--Applies to sports and some other situations (Murphy, “the timorous can stay home”)
--Normal RPPUTC would’ve told player to chill out, here ok not to
--May apply to criminals (e.g. mugger AR that cop might shoot)
2. Implied Secondard AR: waiver like express AR but inferred from conduct (e.g. getting in
car with drinking driver). Overlaps w/CF. P must:
a. Know of risk
b. Voluntarily decide to encounter risk
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Negligent Infliction of Emotional Distress
NIED: 4 fact patterns:
1. Loss of consortium: a) services, b) society, c) sex. Derivative claim, cannot rise higher than
original claim (e.g. CF may reduce/bar recovery), but some states treat as independent claim
--Loss of fillial consortium (a few states recognize, majority no)
--Loss of parental consortium (a few states recognize, majority no, Boucher). Rationale:
multiplies liability, higher costs, invades leg province
--Unmarried cohabitants: depends on juris, Medley
2. Near-miss (“fear or shock from risk of physical harm”). States differ on standards:
--“Impact rule” (e.g. even gravel from car, horse tail brush)
--Zone of danger
--Physical manifestations (objective verifiability), e.g. miscarriage, rash
--“Medically diagnosable” emotional harm, e.g. depression
--Abolished any specific rule
3. Bystander (sadness/grief)
--Dillon: flexible standard (as to proximity of relationship, time, space), duty to all who may
suffer emotional harm based on P location + sensory contemporaneous observance + close
relationship
--Thing: firm rule (“ “), need presence at scene + serious distress + close relationship
--Grube: “fear for one’s own safety”—confused standard, makes the category effectively
nonexistent or a double claim of a near-miss claim (ZOD)
*Some cts allow delayed perception if scene is unchanged (Dillon type usually)
*Recovery affected by CF (e.g. dad who lets kid wander off and be hit by car)
*”Close relationship” determined by state
4. Relationship + Foreseeability Claims: D behaves carelessly, no physical injury, but there’s a
preexisting relationship and as a result P is upset, which was a foreseeable result of the D’s conduct
(e.g. dead body cases, false positive test results, irreplaceable tissue samples, baby swap; NOT sex
tape, Boyles, maybe wrong, or administrability issue)
5. Toxic Exposure [emerging area]: no present disease but > 50% chance of developing (cts very
divided about whether such cases are recoverable, some states have no case law position yet).
Note: if you DO have symptoms, medical monitoring is easily allowed.
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PRODUCTS LIABILITY
McPherson v. Buick, Cardozo: duty does not run only to those in “privity of K,” allowed buyers to sue
manufacturers for negligence. However, when difficult to establish negligence, P attys used
merchantability (but still an implied K issue with a specific manufacturer). Then overruled need for
privity in merchantability claims, then *Greeman: eliminate verbiage, all merchants in a
distribution chain are strictly liable if they sell a dysfunctional product (incl manufacturer,
wholesaler, retailer). Incorporated into RS2d, §402A: SL for products
SL: chief req is that consumer prove product is defective (3 forms):
1. Manufacturing defect: “production flaw,”
a. Anomalous product
b. Tests:
“More dangerous than consumers would expect” (consumer expectation test, p. 645 n2),
vs.
“Physical departure from its intended design” (RS3d, n3)
Challenge for P: proving defect existed at time it left D’s hands. If product has been
subsequently altered (deliberately/accidentally, as by negligent/rough handling), no
claim. Lee, p. 643: proof issue: only 3 reasons bottle can explode: thermoshock (none),
physical force (none), overcarbonated/glass problem (P gets showing of evid cuz it’s
left). RIL w/ diff jury charge, doesn’t allow B<PL type determination of breach (SL).
MAY be able to est proof simply by showing product to factfinder, who will know by
nature of product that the defect existed (e.g. razor sharp edge on toy truck, unless
manufacturer can show you sanded it down).
What if product is destroyed, e.g. car crash? Logical deduction, rule out other likely
explanations
Note: p.647, Mexicali Rose, “no duty to provide perfect enchilada” when defect is
“natural” to the food. Most cts REJECT this “natural to the food” argument.
2. Design Defect: product itself designed in a way that’s dangerous to consumers (more
worrisome to manufacturers, mass liability).
a. Tests:
Some: retain consumer expectation test, but problematic
Majority: “Risk utility test”: if design produces degree of danger that could’ve been
eliminated at reasonable cost, product considered defective. Basically just negligence
(showing manufacturer made neg decision in weighing utility). Honda, killer seatbelt
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case, P must prove existence of reasonable alternative design (safer but not much
costlier or unworkable)… P here failed, moving release lever closer to driver would
make it harder for a 3rd party rescuer to press, also failed to show it was econ viable
(even though Toyota was using another design, could be different cost structures,
what’s price-effective for an expensive car isn’t necessarily so for a cheap car). HEAVY
BURDEN ON P, NEED EXP ENGINEERING TESTIMONY, RS USES BUT NOT ALL CTS
AGREE.
b. Information Defect: even if no way to cost-effectively eliminate danger of design (e.g.
ladder, possibility to fall off top step), “obligation to give adequate (prominent,
understandable, maybe bilingual/pics) warning about non-obvious danger that cannot
be designed out, to consumer or ‘learned intermediary’ (skilled dispenser, e.g.
pharmacist)” UNLESS danger is obvious. Liriano, hurt in meat-grinder where store had
removed safety guard: Calabresi—warning need not just identify danger, may identify
alternative, e.g. “don’t use w/o safety guard”, so there WAS a defect.
 Note: still need to show causation, 674n10, but “heeding presumption” as to warning,
shifts burden to D to show P wouldn’t have heeded warning (like informed consent,
reasonable person standard as to what we think someone would’ve done).
If misuse of product is foreseeable, it is NOT P fault (product should be designed to take
that into account, like Bexiga). But if misuse NOT foreseeable, there’s no liability b/c no
defect. CF may still apply though, e.g. crushing machine.
Products Liability
 Strict products liability= liability without fault
o Yet when someone says products liability, don’t always mean strict liability
 Products liability can overlap with negligence (no cost-benefit justified
precautions, drunk on assembly line) or contracts
 Analytic shift: No longer focus on conduct, look at product itself
o Not interested in behavior of defendant
 Who would be exposed to liability for strict products? ONLY IMPOSED ON MERCHANTS
o All merchants in distribution chain (manufacturer, retailer, wholesaler)
Cuiseneart Macy’s You
 Can sue both Macys and Cuiseneart
 Yet if you sell food processor to friend/eBay- they cannot sue you because
you are just a casual seller
 Joint and severally liable- if you recover from anyone lower on chain, they can seek
indemnification from highest (100% recovery)
 In order to have a claim
o 1) Must sue merchant
o 2) Must prove
 A) Product was defective
 B) Defect existed when product left the possession of defendant being sued
3 Types of Defects
 Manufacturing defect-When the product departs from its intended design
 1 in a million
 Product can still be defective if no negligence is found
 Elements
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Product was in fact in a defective condition, unreasonably dangerous for its
intended use
 Test for defect/unreasonable danger: Consumer expectations test- must
make a product more dangerous than consumer reasonable expects (used
by more jurisdictions)
 Used in food products cases- did consumer reasonably expect to find
i.e. a bone in their enchilada?
 Alternative test: Products Liability Restatement- product has defect when
product departs from its intended design even though all possible care was
exercised in making product
o Defect existed when the product left defendant’s hands (can use res ipsa)
 Can infer that defect exists at sale/distribution if a) event was of a kind that
ordinarily occurs as a result of product defect, or b) event was not solely the
result of causes other than defect
o Defect was proximate cause of injuries sustained
Design defect
o Every unit of product is vector for liability- dangerous propensities
o Alternative test often used with design defects= risk-utility test- defective if the
risks inherent in the design outweigh the benefits/utility
 Weight the likelihood of harm, gravity of harm if it occurs against cost for
preventing harm by using different design (includes loss of benefit in
present design and direct costs of alternative design- production and ads)
 Note: Restatement of Products Liability adopts risk-utility test for design
defects (consumer expectations test- not independent standard for judging
defects)
o Plaintiff must/should offer evidence of RAD- reasonable design alternative
 Safer
 Economically plausible
 Practical- doesn’t introduce new problems regarding product’s use
(i.e. dull carving knife)
 Restatement 3rd of Product Liability- says must offer evidence of RAD
 This almost always requires expert testimony
 Honda v. Norman- Seatbelt traps woman who drives her car
intoxicated into body of water.
 RAD is not enough- must also show that product was unreasonably
dangerous and foreseeable that it would cause harm similar to that suffered
by plaintiff
o Problems with design defects
 Consumers don’t necessarily know about design before they use it
 You may cease to expect any better if you are a repeat user (i.e. industrial
press- Knitz)
Information Defects- failure to provide appropriate information (instructions or warnings)
about a product may make an otherwise safe product dangerous or defective
o Warnings
 Used to 1) warn of danger’ and 2) educate user about safer alternatives
 Subject to risk-utility analysis. Almost always economic, safer, and practical,
yet can be superfluous or counterproductive
 No duty exists to warn of dangers that are/should have been obvious
o


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Warning must be reasonably clear and of sufficient force and intensity to
convey the nature and extent of the risks to a reasonable person
 Sometimes must warn of extend of harm that can result
 Danger to small amount of people- duty to warn turns on magnitude of
danger
Heeding presumption- courts assume that plaintiff would read and heed warning
Learned Intermediary Doctrine- warn doctors about downsides of medicationassume that they will pass it on to patients
 Doesn’t apply if vendor markets drugs to end-users
Liriano v. Hobart- Young immigrant hurt on meat grinder without any warning.

o
o
o
Affirmative defenses
 Early products liability decisions hesitated to make P’s contributory/comparative
negligence a defense
 Modern approach: whatever jurisdiction’s standard method of dealing with P’s negligence is
(typically comparative negligence), that method applies to products liability
 Different types of negligence by P
o Failure to discover risk- prob not negligence since P is entitled to assume that there
was no defect at all
o Assumption of risk- modern trend treats this as comparative negligence- to the
event that P’s decision to use the product in face of known risk was unreasonable, it
will cause P’s recovery to be reduced proportionally
 No long an absolute bar to recovery
o Ignoring safety precaution
o Misuse: If P totally misuse the product, D will not be relieved from liability unless
misuse was so unforeseeable that either 1) the misuse couldn’t be reasonably
warned or designed against or 2) misuse was found to be superseding
 Third party alteration- no defense if it was foreseeable- Spadone
 Hughes- misuse is not affirmative defense; rather, part of P’s case
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Boyle Article
Precedential Arguments
1. Purposive interpretation v. formalist interpretation
a. Purposive- imagine purpose behind rule and determine words in light of purpose
b. Formalist: explain meaning of word by taking it out of context and without
considering purpose behind word. Then apply that definition to your facts.
2. Broad v. narrow rule
a. Broad rule- take each phenomena in case and make it as abstract as you can
b. Narrow- rules in specific case are not capable of deciding another case that is
marginally different
3. General Manipulation of precedent
Policy Argument/Non precedential
1. Judicial administrability
a. Firm rule- easily administered, citizens know the law, another standard would open
floodgates to litigations, undermine the rule, confusion
b. Flexible standard- Rule X= harsh and rigid standard, would lead to unfair outcome,
cannot adapt to changing times, courts’ hands would be tied, will allow justice to be
delivered on case by case basis
2. Institutional competence- is particular claim suitable for court to take?
a. Courts are competent institutions- issue is suitable for courts to deal with, needs to
be resolved by institution which takes outside expert advice with firm
understanding of changing moral consensus of society, set up to deal with complex
factual issues, to respond to changing circumstances, and be objective
b. Court are not competent- leave it to legislature, courts should apply and not make
law (threaten separation of powers), legislature is body that reflects changing public
opinion, can use outside experts, used to dealing with complex matters, cannot have
quick fix judicial decision
3. Moral arguments
a. Making moral decisions on formal classification of dispute (two contracting parties)
v. making moral decisions based on substantive relative social power of people
involved
i. Morality as form (a contract is a contract) v. morality as substance (why
should K be enforceable against person with unequal bargaining power)
b. Other moral arguments; morality as freedom v. morality as security; individual v.
community; content v. process; individualistic v. altruistic
4. Deterrence or social utility arguments
a. One side argues that proposed action will deter good conduct and encourage bad
behavior. Other side argues the opposite.
5. Economic arguments: cost benefit analysis
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