Duty
General
Palsgraf (pp. 519-27) includes duties to plaintiffs or particular classes of people. “The risk reasonably to
be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others
within the range of apprehension.” Cardozo’s approach conflicts with Andrews’ substantial factor test.
Duty to Rescue
Mere observation of someone in distress does not create a duty to rescue (Yania v. Bigan). One must be
legally responsible for the present peril in order to have such a duty. Liability attaches to omissions in
the light of such a duty as well as commissions (Montgomery). Epstein argues liberty motivations for
denying a general duty to rescue, while Posner argues that reciprocation is a sufficient reason to create
a duty to rescue for society’s benefit.
RTT: § 39 Duty based on prior conduct creating a risk of physical harm
When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical
harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to
prevent or minimize the harm.
Aid offered to the helpless: once begun it cannot be undone. When one takes care of another who is
helpless, having been under no duty to do so, one is responsible for injuries that result from the failure
to exercise reasonable care or by suspending the aid in such a way that the helpless individual is then
worse off.
Owners and Occupiers of Land
RST establishes a duty to not construct attractive nuisances (pp. 589-90).
Trespassers assume all risks of the conditions which may be found on the trespassed property
Owner cannot set traps and is liable for injuries from traps sent (reckless, willful, and wanton conduct)
Licensees-present with the leave and license of the occupier
Invitees-defined by RST as a public invitee (invited to enter or remain on land as a member of the public)
or a business visitor
Rowland factors for dissolving categories (as absolutes):
I.
II.
III.
IV.
Closeness of the connection between the injury and the defendant’s conduct
Moral blame attached to the defendant’s conduct
Policy of preventing future harm
Prevalence and availability of insurance
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a. Rowland: “Where the occupier of land is aware of a concealed condition involving in the
absence of precautions an unreasonable risk of harm to those coming in contact with it
and is aware that a person on the premises is about to come in contact with it, the trier
of fact can reasonably conclude that a failure to warn or to repair the condition
constitutes negligence.”
i. Gratuitous Undertakings
ii. Special Relationships
Gratuitous Undertakings
§323. Negligent performance of undertaking to render services
One who undertakes, gratuitously or for consideration, to render services to another which he
should recognize as necessary for the protection of the other person’s person or things, is subject to
liability to the other for physical harm resulting from his failure to exercise reasonable care to perform
his undertaking if
(a) His failure to exercise such care increases the risk of such harm, or
(b) The harm is suffered because of the other’s reliance upon the undertaking
Elemental analysis:
1) Duty
a. Undertaking-a promise is not enough, action is necessary
b. Render services to another
i. Conduct for one’s own benefit does not count (aside from the consideration)
c. Recognized as necessary for the protection of the other person’s person or things
d. Failure must
i. Increase the risk of harm, or
ii. Reliance (even if reliance is present, causal connection must still be established)
2) Breach
a. Negligence
3) Cause
4) Physical harm
Cardozo in Moch: “The hand once set to a task may not always be withdrawn with impunity though
liability would fail if it had never been applied at all.” “The query always is whether the putative
wrongdoer has advanced to such a point have launched a force or instrument of harm, or has stopped
where inaction is at most a refusal to become an instrument for good.”
RTT: §42. Duty Based on Undertaking
An actor who undertakes to render services to another that the actor knows or should know reduce the
risk of physical harm to the other has a duty of reasonable care to the other in conducting the
undertaking if:
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(a) The failure to exercise such care increases the risk of harm beyond that which existed without
the undertaking, or
(b) The person to whom the services are rendered or another relies on the actor’s exercising
reasonable care in the undertaking.
Special Relationships (Duty to Control)
RST: § 315. General Principle
There is no duty so to control the conduct of a third person as to prevent him from causing physical
harm to another unless
1) A special relation exists between the actor and the third person which imposes a duty upon the
actor to control the third person’s conduct, or
2) A special relation exists between the actor and the other which gives the other a right to
protection
Situations:
Landlord-Tenant: Kline factors for considering an extension of the duty:
1)
2)
3)
4)
5)
6)
Judicial reluctance to tamper with the common law concept of the landlord-tenant relationship
The criminal act is a superceding cause
Determining the foreseeability of the crime
Vagueness of the standard to be applied to the landlord
Economic consequences of the imposition of the duty
Conflict with public policy in privatizing the duty to protect
Psychiatrist-Patient-3rd Parties: Tarasoff establishes limited duty under 315. While Tarasoff was a bit
unclear, psychiatrists must report if, in their professional judgment, a credible specific threat has been
made against a specific identifiable person.
Breach-Negligence
Creation of an unreasonable risk that results in a cognizable harm
History
Rylands (1865)
I.
II.
III.
IV.
Bramwell-Strict Liability
Martin-Negligence
Blackburn-Concurs with Bramwell, responsibility for anything brought onto one’s own
property
Cairns-Abnormal use of property entails SL.
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Stone v. Bolton (1950)
I.
Cricket-Must prevent probable harms, adjusted to foreseeable or substantial.
Development of reasonable person standard
I.
II.
III.
Doesn’t actually exist as a person, but is generally the instruction given to juries
Often informed by customary practices
Emergency situations merit reasonable conduct in the given situation
Different Definitions
I.
II.
III.
Foreseeability (3rd Restatement)
Cost/benefit balance
Economic approach (Learned Hand)
Activity Levels
Under negligence, so long as an increase in activity level does not increase the level of due care owed, a
potentially injuring party will increase his activity level at whim without consideration of the detrimental
impact the increased activity level has on others. Under a strict liability regime, increased activity levels
will lead to increased exposure regardless of due care and will thus limit. Negligence allows for
inefficient activity levels that can be in excess, while counter to the presented argument strict liability
can inhibit activity levels that may lead to breakthroughs.
Without regard for due care, increased activity levels increase exposure, so this argument undermines
negligence and favors strict liability
Under negligence, someone will be in excess, so society must decide who they want to favor: plaintiffs
or defendants
Activity levels-Under a rule of negligence, highest net utility for the defendant will determine actions.
Society’s preferred activity level incorporates the costs on society that the defendant does not have to
bear. Negligence works when activities begin with an assumption regarding the level of care required
for the given activity. The second question, highlighted by activity levels, is how much should I engage in
this activity. The Hand formula can seem to make people engage in a higher level of activity than they
should. “You do more of something when it is free or discounted.” Activity level doesn’t seem to be
examined in negligence cases, only level of care. Under strict liability, net social utility and net
defendant utility are the same as the costs are internalized.
In a world of strict liability the defendants bear all the losses. Plaintiffs are then free to engage in a
higher activity level than they perhaps should.
Since under either system someone will be at an excessive activity level, society must decide whose
activities they want more. Contributory negligence can balance this in a strict setting, but it tends to
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complicate the originally simpler trials and doesn’t mesh up with a rule of law that doesn’t recognize
negligence in the first place.
Hand Formula
Carroll Towing; B>/<P*L (Burden of precaution against the probability of harm multiplied by its gravity)
Balance of social interests
SL leads to more but cheaper lawsuits
Negligence yields fewer but more costly lawsuits
Professional Malpractice
Standard for proper conduct is determined by the profession itself. “A doctor must use the degree of
skill and learning which is normally possessed and used by doctors in good standing in a similar practice
in similar communities and under like circumstances.”
Distinct from standard applied to consent (reasonable person’s interest in risks)
Lost Chance
Two different categories of damages: suffering while alive (requires awareness) and loss to
survivors/contribution to estate
Three views:
Majority-Damages awarded based on the lost chances
Minority-Not at all recognized, “more likely than not” standard applies
Hybrid-Only damages available for collection are those specifically associated with the
increased risk/lost chance
Informed Consent
Generally resolved through consent forms
Patient must be advised of all substantial risks that a reasonable person would use as
the basis for consideration for undergoing the treatments.
Res Ipsa Loquitor
In the Restatement, res ipsa is an allowable inference, to be distinguished from a shifted burden of proof
and a presumption. These are rules of evidence. An inference is an allowable conclusion, but not a
required conclusion. A presumption would hold barring some indication to the contrary (rebuttable
presumption), whereas the shifted BoP would require a finding of negligence unless the defendant
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provides proof reaching a certain threshold. Under a shifted burden, the plaintiff would have to
demonstrate an injury by an instrumentality in the exclusive control of the defendant and that the
mechanism of injury doesn’t normally occur without negligence.
Res ipsa generally only applies to negligence cases, and when the harm falls outside of a duty owed
under negligence law the principle is generally not applied. Example given is the assumption of risk for
guest passengers when mechanical failure is as plausible cause as driver error.
Demonstrating a different proximate cause can defeat a res ipsa presumption. Only in the rarest of
cases can res ipsa be used to justify a directed verdict or summary judgment. Most states treat res ipsa
an inference available to the jury rather than as a rebuttable presumption. Only in a rebuttable
presumption is the burden actually shifted to the plaintiff.
a. Moves negligence closer to SL, allows for proof through circumstantial evidence and
inference
b. Three iterations:
i. Wigmore
1. The event must be of a kind which ordinarily does not occur in the
absence of someone’s negligence
2. It must be caused by agency or an instrumentality within the exclusive
control of the defendant
3. It must not have been due to any voluntary action or contribution on
the part of the plaintiff
ii. Second Restatement
1. The event must be of a kind which ordinarily does not occur in the
absence of someone’s negligence
2. Other responsible causes, including the conduct of plaintiff and third
persons, are sufficiently eliminated by the evidence
3. The indicated negligence is within the scope of the defendant’s duty to
the plaintiff (exclusive control)
4. It is up to the court when this inference may be drawn by the jury or if it
must necessarily be drawn
5. It a different conclusion can reasonably be reached it is up to the jury
iii. Third Restatement
1. The factfinder may infer (allowable inference, not required) that the
defendant has been negligent when the accident causing the plaintiff’s
physical harm is a type of accident that normally happens as a result of
the negligence of a class of actors of which the defendant is the relevant
member
Negligence Per Se
Violation of a statute as proof of negligence, must be related to loss causation
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In a move from Holmes’ stop-look-listen rule, Cardozo established that application of rule should be left
to jury
Analytical approach:
a. Is there a statute and was it violated?-Duty
b. Was the injured party part of the protected class?-Breach
c. Was there a causal connection between the statutory violation and the injury?-Cause in
fact
d. Was the type of injury intended to be prevented by the statute?-Proximate Cause
e. Are there damages?-Damages
Negligence is proven when the plaintiff has shown:
f.
a. What defendant did
b. How dangerous it was
c. Defendant’s opportunity to discern danger
d. Availability of safer alternatives
e. Defendant’s opportunity to know about safer alternatives
Causation
Cause
Cause in Fact (Sine qua non)
“But for”-act would not have occurred absent the conduct.
Can sometimes lead to burden shifting (rescue equipment)
Torts can be seen as a tool for allocative efficiency or corrective justice. From an economic point of
view, market share theory and risk creation theory is not especially problematic, so long as defendants
are not excessively deterred from acting within the market. Economically, so long as the defendants
exercise the appropriate amount of car, the causation issue has been less important to economic theory.
It is crucial under the justice scheme, where the appropriate tortfeasor should only be held liable for the
injury he or she creates. Allowing for causation based on risk creation is blatantly unjust, where cause in
fact needs to be present. The actual causal connection between action and injury is the minimum
required element for corrective justice theories. Sometimes it is the sole necessary condition, while
others go further.
Proximate Cause
Assumes that negligence is present. Assumes that defendant’s action is a “but for” cause, but is it too
remote? Cause in fact can create massive chains of causation, and proximate cause wants to sever the
causal connection when searching for a responsible party. Strong relationship between proximate cause
and duty. “Natural and probable” is used to differentiate proximate cause from remotes causes.
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a. Joint & Several Liability prevents multiple sufficient causes from being a defense against
liability (mult. fires). This is different from two cooperating actors. RTT holds that joint
liability is proper when two or more causes act synergistically so that the combined effect is
greater than the sum of the parts.
b. Burden shifts when multiple sufficient causes are present but they did not combine.
i. All parties are negligent in some fashion
ii. Plaintiff can’t prove who is responsible
iii. Defendants are presumed to have an information advantage
c. “Natural and probable” is barrier between remote and proximate causes.
d. Approaches:
i. Directness-works best when act and result are not temporally removed with any
great significance. (Ryan)
Is there a direct relationship between the defendant’s negligence and the plaintiff’s injury? Reasons
backwards from the injury to determine what intervening events exist between the injury and the act.
Eventually “direct” turns into a legal conclusion, just like “proximate.” Works well in situations like
Polemis when there is little time or distance between the events. Adopts the strict liability idea of not
caring what the reasonable person would do and focusing rather on direct tie between act and injury.
i. Scope of Harm/Foreseeability (Berry-3rd Restatement)
At the time the defendant acts and is negligent, is it foreseeable that this kind of harm will occur? It is
related to the scope of the risk (3rd Restatement), where the resultant injury is within the kinds of risk
that the negligence creates. Difference lies in the fact that scope of risk can be answered without asking
about foreseeability, and the scope of risk could assume an omniscient perspective rather than
reasonable foreseeability (which provides no cut-off, as it veers towards strict liability. Foreseeability
assumes the defendant’s POV at the time of action and asks what a reasonable person would have
foreseen. Forward looking from action to injury, based on what could be foreseen at the time of action.
Provides both a foundation and a limit to negligence and causation.
iii. Substantial factor (nebulous; Andrews’ dissent in Palsgraf)-examine the issue
raised by both of the above approaches and apply to the facts at hand. 2nd
Restatement adopts this language.
No one doctrinal approach is sufficient for all cases, examine the issues under both directness and
foreseeability in order to fully evaluate the case at hand. Consciously designed not to be a bright line
rule. This ultimately ends up being the dominant approach in the field of torts. This language ends up in
the Second restatement. This approached emerged just as the realists were coming to the fore.
Andrews asks the following questions: Was there a direct connection between the cause and the effect,
without too many intervening causes? Is the effect of cause o result not too attenuated? Is the cause
likely, in the usual judgment of mankind, to produce the result? Or by the exercise of prudent foresight
could the cause be foreseen? Is the result too remote from the cause, and here we consider
remoteness in space and time.
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Intervening Causes
Intervening causes do not suspend liability, whereas superceding events do. Artificial actions tend to be
seen as superceding, whereas natural events tend to be seen as intervening.
If an event successive to the negligent conduct of the defendant was a foreseeable act given the
negligence it is not a supervening cause. This is rooted in the idea that the original act exposed the
plaintiff to the risk in the first place.
Dependent successive acts-When each of two successive acts is sufficient to harm the plaintiff, but the
plaintiff is exposed to the second cause only because of the prior negligence of the first, the second act
is said to be dependent on the first, so the second defendant is responsible only for the incremental
damages. When subsequent acts create a “new casual agency” the proximal chain is broken.
RST Approach
a. §448-Intentionally tortious or criminal acts done under opportunity afforded by actor’s
negligence
i. The act of a third person in committing an intentional tort or crime is a
superceding cause of harm to another resulting therefrom, although the actor’s
negligent conduct created a situation which afforded the opportunity to the
third person to commit such a tort or crime, unless the actor at the time of his
negligent conduct realized or should have realized the likelihood that such a
situation might be created, and that a third person might avail himself of the
opportunity to commit such a tort or crime
b. § 449-Tortious or criminal acts the probability of which makes actor’s conduct negligent
i. 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 tortious, or criminal does not prevent the
actor from being liable for harm caused thereby
RTT approach
a. “When a force of nature or an independent act is also a factual cause of physical harm,
an actor’s liability is limited to those harms that result from the risks that made the
actor’s conduct tortious.”
Medical care required for injuries, even negligent care, is considered a foreseeable risk of negligent acts,
and therefore short of grossly negligent care it does not serve as a superceding cause.
Damages
Consider the different aims of tort law when assigning damages: compensation, efficiency, corrective
justice, and deterrence.
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Foreseeability of harm is limited to type, extent is left to the jury
One takes one’s victim as one finds them
One does not have to foresee the full extent of the harm, merely the type of harm (within limits)
Wrongful death-death was not a compensable injury at common law. The common law saw death as an
abatement of the action. This idea was overridden through wrongful death statutes. Statutes control
damages rather than common law principles. Two approaches to damages: calculate damages based on
the loss to the survivors (what would they have gotten out of me over the remaining course of life,
including offsets for personal consumption of the decedent and inclusions for consortium depending on
who is eligible for all of these damages) and the loss to the estate (how much would have been in the
estate, still factoring consumption). The difference between the two is that a will would direct eligible
beneficiaries of the settlement. Distinguished from survival actions, which can be joined with wrongful
death actions. The survival actions apply to the period following the loss during which the plaintiff
remained alive. Allows for pain and suffering for that period. In general, wrongful death claims are
worth less than personal injury claims.
Punitives: Malice and wanton acts usually merit punitive. Factors to consider in other situations:
Reasons for punitive damages (as deterrence and punishment are treated as similar and parallel ends in
the same breath; first four deal with underdeterrence [only 8-12% of potential claimants ever seek
compensation):
1) Compensatory damages do not always compensate fully.
2) Ensures that cases where compensatory damages are hard to quantify in a satisfactory way are
not undeterred.
3) Raises transaction costs of otherwise cost-effective seizures of another’s property or rights.
4) Raises the costs of concealable tortuous conduct.
5) Serve as an expression of community disapproval.
6) Relieves the pressure on the criminal justice system by giving private individuals an incentive to
shoulder the costs of enforcement.
7) Prevents the adoption of self-help measures by those whose claims would not be heard by the
criminal justice system.
Considerations established by SCOTUS:
Three considerations are provided for courts:
1) The degree of the conduct’s reprehensibility (in terms of the specific plaintiff)
2) The disparity between the harm suffered (compensatory damages) and the punitive damages
3) The difference between punitive and civil penalties in comparable cases (least critical factor)
Reinstatement of the punitive was inappropriate.
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Reprehensibility:
1) Factors:
a. Was the harm physical, as opposed to economic
b. Evidence of indifference or reckless disregard for the health and safety of others
c. Was the target financially vulnerable
d. Did the conduct require repeated action or was it an isolated incident
e. Was the harm the result of intentional malice, trickery or deceit or was it an accident
2) Punitives were excessive in light of the behavior of SF
3) Utah was punishing SF for nationwide conduct and not just the particulars of this case
4) Much of the conduct was out of state, and each State must make its own lawful determinations
Harm ratio
1) Court declines to impose a bright line rule
2) Few cases where the ratio exceed 9:1 pass muster
3) Damages must be reasonable and proportional to the harm
Defenses/Plaintiff’s Conduct
Contributory Negligence (Cont. Neg./AoR/LCC)
Part of classic triumvirate of defenses that benefitted manufacturers: cont. neg., assumption of the risk
(voluntary entrance into the obvious and necessary zone of risk created by the defendant), and the
fellow servant rule. Last clear chance (stop, look, listen) was also considered. All of these classic
defenses were treated as bars to recovery (complete defense) under the clean hands doctrine. Cont.
neg. has since been folded with assumption of the risk and last clear chance into comparative
negligence.
Negligence must contribute to the injury in order to be considered. The defendant bears the burden.
Assumption of risk. Elements of defense:
1) Danger is known to the plaintiff (risk created through defendant’s negligence) (subjective testactual knowledge, not should have known)
2) Voluntary choice to encounter the risk
3) Causal relationship between voluntary choice and injury
Comp. Neg.
Li-“All or nothing” nature of contributory negligence was bothersome, adopted the comp neg rule
already in place in FL in order to properly apportion blame. Corrective justice and fairness are the best
arguments for comp neg. Pure and hybrid schemes are in place in 46 states.
Joint, several, and vicarious liability
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Joint: Any one defendant can be held liable for all the damages because all are engaged in a joint
enterprise
Several: Each party can only be held liable for their portion of the loss
J&S: each is ultimately held liable for their portion, but plaintiff can pursue one and allow him to handle
collection from the others. The two defendants do not have to be engaged in a joint enterprise.
Joint and Several Principles
1) Joint and several liability does not undermine Li.
2) Partial equitable indemnity is appropriate between defendants
a. Two approaches to dealing with insolvency in these circumstances
i. Court favors the distribution of loss to defendants in like proportion
ii. Another approach includes the plaintiff in bearing the risk of indemnity
iii. Several liability would of course put all the risk of insolvency on the plaintiff
b. Some states now distinguish between economic and non-economic damages when
divvying damages. (j&s on economic and s on non-economic)
3) Contribution statutes do not preclude comparative indemnity
4) Trial judge’s can pace separate actions in order to resolve all issues and contributions
Contribution and Partial Indemnity
RTT: “If a defendant establishes that a judgment for contribution cannot be collected fully from another
defendant, the court reallocates the uncollectable portion of the damages to all other parties, including
the plaintiff, in proportion to the percentages of comparative responsibility assigned to other parties.”
Exceptions: intentional torteasors, persons acting in concert, vicarious liability, and persons who fail to
protect plaintiff from the specific risk of an intentional tort.
Vicarious Liability Principles
Why find an employer liable:
1) Raise the standard of care for benefit of society
2) Company makes profits from employee’s efforts and therefore should bear the cost of harm
a. Doesn’t work as well in the Bushey case
Principal limit applied to respondeat superior is that liability only applies to activities conducted within
the scope of his employment (furthering the business of the employer).
Frolic and detour-when an employee is engaged in employer’s business and performs a detour and frolic
liability will not be applied to the employer. What’s the difference between a detour and a frolic? Story
from Sinner’s sister. Scope of employment is pressed on facts. Policy concerns also color consideration
of facts. Incentives for employers, concerns for employer liability, and need for employee
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compensation. Knowledge of employee’s potential dangerousness can impose liability even for
intentional torts.
Insanity
Insane people are still responsible for negligent acts unless affected by the mental defect
Age
Children are not assumed to be negligent until around the age of 7. Children can, however, still be held
to intentional torts.
Strict Liability
Animals
Wild v. Domestic- What is the distinction between wild and domesticated? Ability of society/jury to
judge reasonability of conduct towards the animal? Propensity for harm? Commonality within the
public sphere? Strict liability seems to apply to wild animals and domesticated animals with known
dangerous propensities for different reasons. The commonality argument underlies wild animals while
the propensity for harm applies to the domesticated animals. These are the arguments from Rylands.
Likelihood of harm (Blackburn) and commonality of activity (Chairns). Assumption of risk is the only
defense that usually applies in strict cases. Duty of the owner goes beyond warning.
Abnormally Dangerous Activity
Abnormally dangerous activity is the standard nomenclature in current legal standards. Underlying
notions for ultrahazardous activities include common usage, likelihood of harm, efficacy of duty of care,
degree of control, and security within own premises.
When is something so dangerous that the legal system will no longer care how much care was taken but
will rather simply find the damaging party at fault for whatever results?
Certain activities, by their nature, merit strict liability. Regardless of the care exercised at the time of
the litigated incident, strict liability applies based on the activity itself.
American Cyanamid- Generally explosives, handling of certain highly toxic chemicals, and a select few
other circumstances where strict liability is recognized.
RST: Definitions and Affirmative Defenses
§ 519 General Principle
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person,
land, or chattels of another resulting from the activity, although he has exercised the utmost care to
prevent the harm.
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(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity
abnormally dangerous
§ 520 Abnormally Dangerous Activities
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
a. Existence of a high degree of risk of some harm to the person, land, or chattels of
others;
b. Likelihood that the harm that results from it will be great
c. Inability to eliminate the risk by the exercise of reasonable care
d. Extent to which the activity is not a matter of common usage
e. Inappropriateness of the activity to the place where it is carried on and;
f. Extent to which its value to the community is outweighed by its dangerous attributes
RTT: Collapses the first three factors into one, keeps the fourth, and does away with the last two.
§ 522. Contributing Actions of Third Persons, Animals, and Forces of Nature
One carrying on an ultrahazardous activity is liable for harm stated under the rule stated in § 519,
although the harm is caused by the unexpectable
a. Innocent, negligent, or reckless conduct of a third person, or
b. Action of an animal, or
c. Operation of a force of nature
§523 Assumption of Risk
The plaintiff’s assumption of the risk of harm from an abnormally dangerous activity bars his recovery
for the harm.
§ 524 Contributory Negligence
(1) Except as stated in Subsection (2), the contributory negligence of the plaintiff is not a defense to the
strict liability of one who carries on an abnormally dangerous activity
(2) The plaintiff’s contributory negligence in knowingly and unreasonably subjecting himself to the risk
of harm from the activity is a defense to the strict liability.
§ 524A Plaintiff’s Abnormal Sensitive Activity
There is no strict liability for the harm caused by an abnormally dangerous activity if the harm would not
have resulted but for the abnormally sensitive character of the plaintiff’s activity.
Intentional Torts
Trespass to Person, Land, and Chattels
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Restatement (2nd) on Battery:
1) Intend (purposefully or knowingly):
a. Harmful contact (of a particular harm)
b. Offensive contact (psychic harm)
c. Imminent apprehension of such a contact (assault)
2) Harmful contact actually occurs, either directly or indirectly
3) You can intend any one of three things, but the first occurs (separate provision for battery with
offensive contact).
Never lose sight of transferred intent.
Trespass to land
With trespass to real property, no damage had to be shown, merely an intentional invasion. Mere
interruption of the right of exclusive possession is seen as sufficient injury.
What if I don’t know it’s your land, or I think it is land on which I have permission to be? The first is no
defense, as there is no presumption of permitted presence. For the second, there is no intent to
interfere with someone else’s right to exclude. Should I get the privilege of negligence principles?
Historically the answer is no, treated as a strict liability tort. The only relevant intention is that
underlying the actual act that put me on the land. This view is still predominant today. By and large, it
is a strict liability tort rather than a negligence tort or intentional tort.
Chattels
Trespass to chattels
1) Intent
a. Interference with actual possession and control of the chattel
b. Requirement of intent is stronger in TTC than on Conversion.
2) Knowledge
a. You have to know that the property belongs to another
3) Causation
a. Actual interference must take place
4) Damages
a. Actual injury, less than conversion but still substantive dispossession (sliding scale
on intent can lead to conversion)
Conversion
1) Intent
a. Substantial interference w/ exclusive right to possession of the chattel (ownership)
b. Substantiality determined by extent of use length of possession
2) Causation
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a. Interference
3) Damage
a. Harm
Distinction between trespass to chattels and conversion relates to possession. Trespass to chattels was
a possessory interference, whereas conversion is concerned with ownership interference. When
interference occurs, for TTC the owner had to be in possession of the object. Not so with conversion, as
it is the owner interest that in question. Significant but not compete overlap exists between the two.
Remedy was the big difference. Conversion was treated as a forced sale, and the dispossessed would
collect for the full value of the item. With trespass to chattels, the item was returned and damages
were paid relative to the harm.
Causation and intentional torts. Just like negligence and SL torts, causation has to be proven in a prima
facie case. Cause in fact and proximate cause are required. Generally, the directness approach to PC
prevails.
Defenses
NO CONTRIBUTORY NEGLIGENCE IN INTENTIONAL TORTS
Consent
Mohr-“Every person has a right to complete immunity of his person from physical interference of others,
except in so far as contact may be necessary under the general doctrine of privilege”
Generally taken care of through consent forms, but when the conduct extends beyond
advisable/necessary it can become a battery. In emergencies, doctor’s judgment outweighs autonomy.
Consent also frees mutual combatants from liability to one another. If the fight is illegal, the organizer
may have liability.
Under the RTT, the plaintiff must prove a lack of consent
Insanity
Insane people are still responsible for their intentional torts, except those requiring malice of which the
defendant would be incapable.
Self-Defense
Courvoisier- a reasonable person is justified in defending himself, even if perception of the danger was
mistaken. Reasonable force allowed in reasonable circumstances. Same rule applies in the defense of
others. Reasonable belief dictates liability in both.
Third party mistakes are uncommon, but the defendant is generally not liable unless he realized or
should have realized that his act creates an unreasonable risk of causing such harm (RST).
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Defense of Property
Holbrook and progeny- Deadly force not authorized merely for trespass or defense of property, but if
force is used against the possessor than force can be use in kind. Suffering the harm and suing
afterwards may be required. Reasonability is still the guiding force.
Recapture of Chattels
Kirby, et al.- “Unquestionably, if one takes another’s property from his possession without right and
against his will, the owner or person in charge may protect his possession, or retake the property, by the
use of necessary force.” Force is not allowed, however, when the property was entrusted to the other
in the first place. Reasonability standard still applies, but it is up to the defendant to prove his action
was reasonable. Hot-pursuit requirement, as self-help is acceptable up front but later the tort system
and police are available. There is a decent amount of law that favors recapture only when actually
removed from your possession.
Necessity
Private Necessity
Ploof- Ultimately necessity creates a privilege to be on the property of another, so that for a limited time
in limited circumstances the property is no longer in its owner’s possession, as least as far as the right to
exclude is concerned.
Vincent-Necessity permits trespass, but one is still responsible for any damages that result from the
trespass (incomplete privilege). The incomplete privilege can also extend to people (business invitee or
social guest) who have been asked to leave but refuse to in order to avoid the danger.
Public Necessity
When can public actors destroy private property in the greater interests of society? To prevent the
spread of fire and to prevent war-time enemy acquisition. Sometimes the latter is resolved through the
taking doctrine.
Products Liability
“The gist of products liability law is that it governs the activities of the full panoply of manufacturers,
distributors, and sellers who have placed a product in the stream of commerce and therefore are no
longer in possession of it at the time that it causes damage.” First period of this law contemplated
whether any suits whatsoever should be brought against manufacturers since the privity requirement
limited action by injured parties against remote manufacturers who had no privity of contract with the
parties (Winterbottom; contract perspective). The second period quashed this limitation, and held for
actions of negligence against manufacturers (McPherson, Cardozo-manufacturers owe a duty to
purchasers not to have acted negligently in the manufacture of products that are likely to be used
without further inspection). Traynor’s concurrence in Escola, arguing for strict liability instead of
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negligence, ushered in the third period (after several decades when Prosser wrote the Second
Restatement). This idea was adopted in the Second Restatement as it evaluates three factors: 1) market
power of the firm, 2) capacity for insurance, and 3) the firm’s ability to internalize the costs of accidents
associated with their products. Fourth period concerns defective design and duty to warn cases that
expanded liability within the negligence framework.
Considers uses and foreseeable misuses of the product.
Manufacturing Defects
RST: § 402A, Special liability of seller of product for physical harm to user or consumer
1) One who sells an product in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical harm thereby caused to the
ultimate user or consumer, or to his property, if
a. The seller is engaged in the business of selling such a product, and
b. It is expected to and does reach the user or consumer without substantial change in the
condition in which it is sold.
2) The rule in subsection 1) applies although
a. The seller has exercised all possible care in the preparation and sale of his product, and
b. The user or consumer has not bought the product from or entered into any contractual
relation with the seller.
Comments g, h, I, and k are crucial. Defective condition means one thing. This condition is not
contemplated by the consumer at the time the product leaves the seller’s hands. Very contract-like, in
terms of considering the warranty-like issues when a consumer buys a product. There is almost always a
warranty claim attached to a product defect claim under the UCC article 2. This is usually called the
consumer expectation test.
Escola (Traynor con.)- “In my opinion it should now be recognized that a manufacturer incurs an
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.”
“Even if there is no negligence, public policy demands that responsibility be fixed wherever it will most
effectively reduce the hazards to life and health inherent in defective products that reach the market.”
In theory under the Hand formula, there is no difference. In practice, there is reason to take at least
reasonable care under negligence, but activity level issues may support strict liability.
There is also an argument to impose SL on the least cost avoider. Different from efficiency argument, as
it entails an information advantage that can also apply SL to the consumer. As a general matter,
manufacturers are assumed to be the LCA (excluding misuse cases).
Argument based on the compensatory nature of tort law: injured parties need compensation.
Overproves the point, insofar as there is nothing particular about products liability in this case.
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Moves into seeing manufacturers as insurers for the safety of their products. Least cost spreader
argument. Easier for the manufacturer to spread the risk across all consumers.
In the public’s interest to deter the marketing of defective products.
Corrective justice argument: manufacturer introduced the product into the market and therefore they
caused the loss.
RTT is an entrenchment of negligence approach
Section 1, Liability of commercial seller or distributor for harm caused by defective products
One engaged in the business of selling or otherwise distributing products who sells or distributes a
defective product is subject to liability for harm to persons or property caused by the defect.
Section 2, Categories of product defects
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 (largely
related to comment “i” in the 2nd restatement);
(b) Is defective in design when the foreseeable risks of harm imposed 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 (not a complaint about a
departure from the norm but rather with the norm itself; the entire line is problematic not just a
particular unit within the line; move to clear negligence, risk-utility test);
(c) Is defective because 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 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.
Third, Section 3, circumstantial evidence supporting inference of product defect
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:
1) Was of a kind that ordinarily occurs as a result of product defect; and
2) Was not, in the particular case, solely the result of causes other than product defect existing at
the time of sale or distribution.
Design Defects
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Not contemplated in 2nd Restatement. “Open and obvious” dangers are not subject to design suits.
Wade- Risk-utility standard. In many ways this is the Hand formula. Does not favor consumer
expectation approach of the Second Restatement. This not a judgment of the manufacturer’s conduct
(in theory), but rather an evaluation of the product itself. Factors for reasonability of the dangerousness
of a product:
1) Usefulness and desirability of the product (both in terms of the individual user and society as a
whole)
2) Safety aspects of the product, the likelihood that it will cause injury, and the probable
seriousness of the injury
3) Availability of a substitute product which would meet the same need and not be as unsafe
4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its
usefulness or making it too expensive to maintain its utility
5) User’s ability to avoid danger by the exercise of due care in the use of the product
6) User’s anticipated awareness of the dangers inherent in the product and their availability,
because of general public knowledge of the obvious condition of the product, or of the
existence of suitable warnings or instructions
7) Feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the
product or carrying liability insurance (exception to Hand formula; derived from Traynor; kind of
a wild card in the analysis; least cost spreader approach)
Barker v. Lull was exceptional in that it combined both the consumer expectation test and the risk-utility
approach. Most jurisdictions choose one or the other.
State of the art is determined at the time of sale, not suit.
Subsequent improvements that might have prevented an injury are not admissible in trial as evidence of
defect (FRoE 407). There is a troubled area in the area of unknowable effects (pharma cases) where the
line between when a company can be held liable and when they can’t is regularly pushed. The usual
approach to unknowable dangers has been not to hold companies liable (with exceptions in the third
phase of PL that have been overruled either judicially or legislatively).
Duty to Warn
The fact that a danger has been listed in a warning is relevant but not dispositive of most defect cases.
However, when a product simply cannot be made safe the warning defect issue rises to the fore as its
own theory of potential liability/defect. Many cases come down to a very simple failure to warn.
Negligence would require that a warning must be given such that a reasonable person would give. On p.
810, “manufacturer’s duty is to provide the consumer written warnings conveying a reasonable notice of
the nature, gravity, and likelihood of known or knowable side effects.” Goes beyond the classic “known
or should have known” standard to be better characterized as “known or could have known.” The latter
is closer to strict. Arguably there is a touch more strictness between should and could, and this is only
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the rule in a few states. Adequacy of the warning is more pertinent to duty to warn cases than the
difference between should and could. The learned intermediary idea is crucial. Reasonable warning
with considerable issues about medium and detail, all judged after the fact.
Defense: Assumption of Risk (only)
Applies in a comparative fault kind of way
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