Torts outline
2/20/2002 2:02:00 AM
Damages
Must show the existence and amount of the injury
What  can collect
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Medical expenses
Lost earning capacity or wages
Pain and suffering including emotional
o Difficult to dollarize
 Testimony of economists to items that appear arbitrary
maybe allowed but may be dismissed
o Per diem-extrapolate how much it would cost you to be in
pain for a certain amount of time
o Comparable cases, guidelines and scales
o Must be aware of pain and suffering in order to collect for it
 Loss of enjoyment of life is part of pain and suffering
 Hedonic damages
 ED may be separate, but there is no handbook
 Want to get everything but avoid duplicates
Possibly medical monitoring
o Some allow only if actual harm is shown, and some allow
anyway
o Usual denied for increased chance of disease
 Other specifically identifiable harm
 Reasonably certain future damages
 Pecuniary damages are the economic consequences of the injury
 PD, if there is malice or at least reckless disregard
 For property-diminution, cost of repair, replacement, forced sale,
nominal if no actual injur
Most states have instituted caps in some form or another
It is unenforceable for a  to give up the right to assert PD for product
defects.
Death
survival statutes-brought by the estate
 Cause of action survives the death of the  or .
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SOL starts either at moment of tort or moment of death
Wrongful death-separate cause of action for family and dependents of the
deceased.
 Must claim independent tort caused the death, and WD is the
vehicle
 Usually pecuniary, and loss of consortium (spouses), maybe PD
 In wrongful death, a N beneficiary is not entitled to recover
Bring survival statute if committed assault, and decedent later dies
unrelated, bring WD if battery caused his death
Intentional Torts
 allege the elements-prima facie
 Then prove the elements
 Bring all claims at once
Almost all tort cases involve some kind of fault
 The exception being SL
o Wild animals
o Vicarious L-respondent superior
o Abnormally dangerous activity
o Defective products
Battery
Act
w/ intent to cause harmful or offensive contact, or imminent apprehension of
harmful or offensive contact
 either desire to commit and act to cause the offense or harm, or an
intent to commit an act that he is aware a harmful or offensive act
will occur with substantial certainty
 a reasonable person would view substantial certainty
 a reasonable person would be harmed or offended, and a
reasonable person would know a reasonable person would be
harmed be offended
 Not just intent to commit any act
harmful or offensive contact results
 injury-judge harm by the , just offense by reasonable person
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would offend a reasonable sense of personal dignity
o No need to prove medically diagnosable emotional injury to
collect ED parasitic to a battery
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Also, if the  knows of the idiosyncrasy of the 
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extended person-touching something connected to the person
counts as the person itself
Awareness is not requisite to collect for battery
A person may, but probably not, be able to collect for a smoker’s
battery
o Offensive can mean disagreeable, nauseating, or painful
Extended L-L for any consequences arising from the tort
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If you prove all the elements, automatically entitled to nominal Ds for
trespassory torts
Transferred intent-applies to trespassory torts- assault/battery/false
imprisonment/trespass to land/trespass to chattel
Two types
 1.)intends a tort on one person, but commits it on another
 2.)intends one tort but accomplishes another
Only have to sue for the final tort
Aiders and ebedders may be responsible as principals for the tort
 Can pick who to sue, and the  brings in co-s
L of minors
 If elements present, don’t escape L
 Particularly young children may not be able to have the requisite
intent
 What would the average child of that age think was offensive, or did
he have the requisite intent to commit a harmful or offensive act
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Only where a statute authorizes or where the parent is N can a
parent be sued for the torts of the child.
Insane persons
 Insane persons are usually L for intentional torts
 May have motives to harm another, even if irrational
 Just need the requisite intent, but intent can arise out of insanity.
 Just need intent to cause the harmful or offensive contact, but
cannot just intend to cause any contact.
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Dual
o
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Usually do not lower the standard for insane
intent
Act intending to cause a harmful or offensive contact
Not just that a reasonable person would find such an act
harmful or offensive.
Assault
Act
 Words alone are not sufficient, but there may be an act
accompanying the words.
o Words offering a choice could be deemed assault… ill beat
your ass if…
Intending to cause a harmful or offensive contact or the imminent
apprehension of harmful or offensive contact
Imminent apprehension of such a contact results.
 Damages are mental
 apprehension must be one which would ordinarily be aroused in the
mind of a reasonable person.
 An Assault cannot occur if the battery has already begun
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Apprehension is not simply fear, need awareness of imminent
touching
Unlike battery, awareness is a prerequisite
FI
person confines another intentionally
 physical restraint, threat of physical restraint, or the claim of lawful
authority
  must have been aware of the confinement or sustained actual
harm.
 Implicit and explicit threats of physical force suffice
 Office can be L if someone asks to have someone else confined
without lawful privilege
 Privileges-Police officer, tort is false arrest. Same elements, but
officer may have defense based on warrant or probable cause.
w/in a limited area for any appreciable time.
Torts to Property
Trespass to land, trespass to chattels, conversion of chattels
Trespass to Land
 Intentional entry upon land of another, or intent to remain
 Extends below and reasonable above, and includes objects thrown
onto or over
 Intent-purpose or substantial certainty to enter
  L for economic and non-economic harm
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Extended L-damages not intentional or foreseeable
o Limits, such as if they thought they had the right
Interference w/ possession-T can sue, not LL except for actual
damages such as diminution or repair
L for intentional making someone else trespas
injunction
Conversion of chattels-trover, or conversion
 Act,
 with intent to exert substantial dominion and control over property,
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o do not have to be conscious of wrongdoing
and substantial dominion and control results
o Factors
 Extent and duration of control
 ’s intent to assert control
 ’s good faith
 harm done
 expense and inconvenience cause
Ultimate remedy-forced sale
Serial conversions-can sue the guy who steals and the guy who
bought it from him, but not both.
Bona Fide Purchaser
o Good faith purchaser still L. Cant get title from someone who
doesn’t have it. If original owner was tricked into selling it.
Can get title.
o If bought from someone who dealt in such goods, the
purchaser is not L.
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Usual remedy is decreased value, but may be replacement. May be
replevin.
Trespass to chattels
 Act
 w/ intent to interfere w/ ’s property
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o Intent is just to interfere, even if you do not know it is theirs.
and interference results
Must be some legal harm, and L is based on actual damage.
o Dispossession
o Loss of use for appreciable time
o Damages to the item
o Harm to 
Nuisance (not an intentional tort. Result is the determinate)
 Unreasonable Interference with use and enjoyment
 Sometimes no invasion-i.e. halfway house in residential hood
 Usually need intent or N, but SL can occur (abnormally dangerous
activities)
o Knows trespassory invasion will occur
o Knows the invasion occurs, but does not think it is serious
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o Knows conduct risks an invasion
o No physical invasion
Contemporary nuisance law
o Need substantial invasion
o Unreasonable for  to put up with nuisance w/o compensation
o Gravity of harm outweighs utility of the conduct
o Compensation should be made if  can compensate those
invaded and still stay in business
o Must substantially and unreasonably affect normal persons
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and uses.
Public nuisanceo per se-illegal conduct, such as a drug house
o in fact-by accident-circumstances-halfway house, loud parties
o after evaluating in fact or per se, public or private
 Public- unreasonable and substantial interference with a
right held in common by the general public
the person or group suing must prove they are
subject to a different injury from the public
 Otherwise a public official must bring the suit
Factors to consider
o ’s home or business
o utility of ’s conduct
o did the  come to the nuisance? No absolute rule, give
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deference but not determinate
o Normal to area
o ’s interest
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Balance
o Unreasonable?  wins
o Not unreasonable?  wins
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2 remedies
o Damages
IIED (tort of outrage)
Extreme and outrageous conduct
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utterly intolerable for a civilized society
Supervisors often held to higher standard
Common carriers are held to a higher standard, mere insults may
suffice
Not mere insults
intentional or reckless interference with a dead body has
traditionally been allowed.
Repeated or carried on, abuse of power or abuse of a person known
to be vulnerable
Physical violence or threats
Public humiliation
o Public figures are usually denied tort recovery for speech
Don’t have IIED claim for threat of divine retribution
Possibly fraudulently inducing s into atmosphere of coercive
persuasion
 Marital relationships are not the realm of tort
Intended to cause severe distress or reckless in risking distress
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Actually
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Must be the primary or intended consequence
caused severe distress
Purely emotional injury
Physical impact requirement is the clear minority
Many courts moved to physical manifestation of symptoms
May require proof in the form of expert testimony
Must be at least severe or even debilitating
Severe ED may be found when a reasonable person would not be
able to cope with the situation.
 Different if the  knows something about the  and plays on that.
Sexual Harassment-may be battery if contact occurred, but could be IIED
 courts may or may not permit a claim for IIED when the act
performed constituted a battery, but the SOL has expired
IIED usually does not apply to a third party not present during the
outrageous conduct, but still suffers ED as a result.
 The conduct must normally be directed at the person or at least
must be present to witness the conduct
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Must be present, and the presence must be known and could
reasonably be assumed that ED would result.
Presence may be relaxed where the  sexually molested or
kidnapped the child.
Bettis v. Islamis Republic of Iran
 Immediate family could recover when he was kidnapped and
tortured, but not extended family.
 Targeted at you, then you can sue
 This case is an extreme exception, as are some cases where the
parent cannot be there-i.e. therapist molests kid
Defenses to Intentional Torts-Privileges
Affirmative defenses-affirmatively raise the defenses, usually by answer to
the complaint, and the proof must affirmatively convince the jury that the
facts supporting the defense are established.
  has burden of proof.
 If defense applies, not L for the results
Protecting against the apparent misconduct of the 
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Self-defense
o Privileged to use reasonable force to defend against harmful
or offensive bodily contact and against confinement
 Depends on apparent necessity of self-defense, not
actual reality
 If the  reasonably, but mistakingly believes she is
being attacked, she can use reasonable force
 what would the average normal person would
have thought in this situation
o Only what is reasonably necessary to prevent the harm, and
can only use force which is likely to cause death or serious
bodily harm if the harm threatened is death or serious bodily
harm
 If the guy ends up dying from non-deadly force, don’t
worry about what ultimately ended up happening if
justified in self-defense
 Retaliation cannot be in self-defense
o Required to reasonably retreat or otherwise avoid the need
for self-defense, unless  is in her own dwelling
o  is L for excessive force. Beyond reasonable force
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o Provocation is not enough to raise self-defense
o May be able to commit assault or false imprisonment in selfdefense
Defense of third persons
o Usually can defend others on the same basis as defending
yourself. If you make a mistake it may not be privileged
Third party injury in the process of self-defense
o Can use deadly force in response, but injures another person.
Defense may be able to transfer, but then can sue for N, and
then the defense does not transfer.
Defense and repossession of property
o one who reasonably believes that another has tortiously taken
a chattel upon his premises or has failed to make due cash
payment for a chattel purchased or services rendered there,
is privileged to detain him on the premises for the time
necessary for a reasonable investigation of the facts.
 L for FI if hold for longer than necessary
o A police officer is protected for arrest that appears to be
under a warrant or reasonable cause.
o A private person also has the privilege but if they are
mistaken, they are not protected.
 Cannot arrest for a misdemeanor not a breach of the
peace
o A person cannot directly or indirectly intentionally inflict
serious bodily harm on trespassers when there is not danger
of violence to the occupants of the house
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 May be able to argue self-defense
o May be able to threaten force to protect property that you
would not be able to use, but if a battery occurs, may be L.
Recapture of chattels
o If it is in hot pursuit, you can try to forcibly recapture it
Repossession of consumer goods
o Cannot use force even if the buyer is in default, such as an
automobile. Must do so peaceably.
Repossession of land
o Usually must seek recovery in the cts
Discipline
 Parents are able to use reasonable force to discipline their children
 People in charge of a child not their own have a similar privilege,
but a court would allow parents to do some things others could not.
 Military discipline is almost entirely governed by the Uniform Code
of Military Justice and dealt with by actions within the military
The Special Case of Consent
 Willingness in fact- knowing, voluntary agreement
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o Duress does not count
 Threat of losing job is not duress
Can always withdraw consent by communicating to 
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affirmative defense.
o nullifies the crime and any extended L the  would have had
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Usually, often implied-conduct
Consent is not effective if the person lacks capacity
o For an adult, incapacity must substantially impair her capacity
to understand and weigh the harm and risks against the
benefit and the  must have knowledge of that incapacity
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If consent is ineffective in criminal case, it is not consent in tort
Consent must be modified to reflect the relative power of parties
The actions can exceed the scope of consent and result in a battery
o Performing a different procedure than agreed to
o If the patient is unconscion and no substitute consent is
available, then the consent is construed as general, and the
doctor can do what is in his sound professional judgment
o there is usually a consent form and the rule favoring the
autonomy of the  except in the case of the emergency and
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you cant consent and there is no one else to consent for you.
Distinguishing battery from informed consent cases
o Medical battery is different from “informed consent” which are
a species of negligence-based malpractice.
If not an emergency, the parent can decide,, but the state can
trump the decision of the parent
Incompetence-unable to manage own affairs
Hammered, probably not unless severe and/or involuntary
Consent of minors
o Minors can generally consent to a number of touchings
o consent to major surgery
 require consent of a guardian if not urgent
o consent to abortions
 minor women have just as much right to abortions
Consent to crime
o Sometimes say they cannot consent to an illegal act, so can
sue, and some say it bars their claim for a lawsuit because
they participated in an illegal act.
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STDs
o L imposed where  does not disclose information and does not
use protection.
An act of a different character
o Consent has to be to the particular conduct or substantially
the same conduct to be effective
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Consent procured by mistake or misrepresentation
o Consent procured by fraud is not consent
o ’s mistake must be about the material nature of the
transaction consented to in order to nullify the consent
Arrests and searches (proper authorities)
Public rights
 Places open to the general public cannot exclude on the basis of
gender or race
 Enter land to reclaim goods of your own
 Exercise free speech by entering areas open to the public
Necessity
 Public necessity-1.)act in good faith 2.)on behalf of the public good
and 3.) reasonably believed my action was necessary. Thencomplete defense
o Mistakes are ok in this situation.
o State usual must compensate for damage caused by public
officials (taking)
 Private Necessity-incomplete defense
o Indiviidual saving himself or his property
o if you do cause damage, then fairness dictates that you must
pay (only for actual damages)
 if you put it there, or stayed there, intentionally
o If people are on an owner’s property out of necessity, but
would normally be construed as a trespass, the owner is
required to allow them to stay.
 Can be L for damage caued by their removal
Negligence
N-any act that creates an unreasonable risk of harm to others
Elements
 D-matter of law
o  owed a legal D
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B-question of fact
o  breached the D by behaving negligently
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C in F-question of fact
o ’s N was an actual cause
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PCo Scope of L,  was a proximate cause
Injury- suffered an actual injury
D and B=N
C in F, PC, and I=L
Duty
D to exercise care that would be exercised by a reasonably prudent person
under the same or similar circumstances
Reasonable person summary
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Reasonably prudent adult
o Treat minor as same age, intelligence, maturity, training, and
experience
 Inherently dangerous or adult activity-adult standard
 Rule of sevens (not majority)-some cts say minor over
14 is capable of N, btw 7 and 14 presumed capable, and
under 7 are incapable as a matter of law
 3 and under, generally incapable of N
Average memory, intelligence, perception, reflexes
o RP takes on more if  has more
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Knowledge, physical ability, memory
Special-medical malpractice-anyone with a specialized
skill is generally held to an expert in their field
o Less
 Don’t go down for mental incapacity
 Sane and Sober
 Except where involuntarily intoxicated
 Physical
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Reasonable person with that condition
Circumstances
 Standard is the same, but the care which is reasonable in a
situation is proportional to the danger involved in the act
 Conduct that would normally fall below reasonable care may be
reasonable in the case of an emergency
o If created the emergency,  says a reasonable person would
not have created the emergency.
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sudden unforeseeable medical emergency
o not L for injuries caused as a result of N driving
Who a D is owed to?
 D of protecting foreseeable risks to foreseeable s.
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o Only need to foresee the general character of the event or
harm, not the precise nature or manner.
o Reasonable person should have foreseen injuries of the same
general type that occurred to the general clas of persons
Rescuers
o Rescuer can generally recover from  whose N prompts
rescue
o As long as the person he was rescuing was foreseeable, the
rescuer is foreseeable as a matter of law
o Rescuers may be L for additional injury if they are N
 Good Samaritan Laws remove civil L for particular
classes of people in different states. i.e. doctors
Generally, no D owed to professional rescuers on the job
o Firefighter’s rule
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Precludes a firefighter and certain other public
employees including police officers from recovering
against a  whose N causes the employee’s on-the-job
injury.
Most courts still allow for willful or wanton conduct
allow for injuries resulting from N unrelated to the
specfic reason for which they were summoned
 negligently increases the risk after officer’s presence if
known
Can argue assumed risks inherent in the job, no D owed
Intentional tort, can sue
Violation of a statute, can sue
Additional and different risks
May or may not be able to sue if off the job but
operating in normal job capacity
 Would not be alloed WC
No D to act affirmatively for the protection of another
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o Usually, no D to rescue unless legally responsible for putting
him in the position in the first place
 Mere influence by words is generally not enough o
impose reposnibility
o If a person knows of has reason to know that his conduct,
whether tortious or innocent has caused bodily harm to
another person, he has a D to exercise reasonable care to
minimize further harm
o If a person has created an unreasonable risk of harm, even
innocently, a D arises to employ reasonable care to prevent
the harm from occurring
o If a statute or ordinance requires a person to act affirmatively
for the benefit of another
o Special relationships-not exclusive
 Companions on a social venture
 Carrier/passenger
 Innkeepter/guest
 Landowner/lawful entrant
 Employer-employee
 LL-T
 Custodian-person in custody
o Voluntary undertaking: One who volunterily undetakes to
render services to another is L for bodily harm caused by his
failure to perform such services with due care or with such
competence and skill as he possesses.
 Usually no D to prevent suicide absent a custodial
relationship or certain circumstances
o Take charge-if you undertake to help the person, even if you
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owed no D before, you cannot stop if that person is going to
be in a worse condition
Social Hosts are generally not L for the results of guest’s consuming
alcohol
o Dram shop law-limited action for alcohol
 Usually the person who drank cannot sue
 Someone injured by the drunk person may be able to
sue in certain instances
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Federal government-Under the FCTA has a limited D
Generally, No D to protect from third persons
o Exception-voluntarily assuming a D of care, he is responsible
for a breach of the D he assumed
o Imminent threat to invitees by third person
 Foreseeable enough to impose a D to protect
 Totality of the circumstances-main test
 Previous similar crimes on or near premises
 Similar type of injuries
 Balancing test
Forseeability and gravity of harm v Burden to
protect
 Really just an application of B<P*L
o L for possessor of land open to the public if he failed to
exercise reasonable care to discover that harm by others was
likely
o Special relationship to  or to third person
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LL may owe a D of reasonable care
Employer may owe a D to its employees
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Colleges may have a D to protect from third persons,
but probably not a D to protct or guide new student as
to the dangers and pleasures of college
LL is under D to third persons to get rid of dangerous
conditions on leased premises caused by tenants
Employer may be L for hiring dangerous persons
May be a D if in custody of the intentional tortfeasor
D of school to protect students
D to control Children, parent must have control of child
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Only for a specific dangerous habit of which the
parent knows of should know in the exercise of
reasonable care
 Knowledge of a present need to prevent an
imminently foreseeable harm
Patient/psychiatrist
 Reasonable degree of skil/knowledge/ and care
ordinarily exercised by members of that specialty
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D to third party to exercise reasonable care if
patient poses a threat-generally accepted
 Only to identifiable victims-cant warn everyone
 Maybe to prevent suicide
N infliction of distress of emotional Harm-Generally a D rule.
No D to protect from a purely emotional injury
Traditionally, need physical injury. Parasitic Damages, no issue
o Also, IIED and trespassory torts (parasitic), defamation,
misrepresentaion,
N conduct results in Loss of consortium (death or incapacity)
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o brought under WD or NIED, not both
o Most, for spouse/generally not for co-habitators-gays
o Some for kids/parent, parent/kids
o Comparative N of decedent reduces recovery
N conduct results in ED-most states dont require impact
o Different evidentiary requirements for ED
 Physical manifestation
 Medically diagnosable or scientific proof
 At least some severe ED by this person and a normal
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person would have suffered severe ED
If a  aggravates a pre-existing condition, L for the full
extent of aggravation, assuming objectively a person
would suffer ED
o Zone of Danger-within the zone of danger of physical impact,
caused by fear of physical injury to self. (majority)
o Close relationship (minority, but close)
 Closely related
 Present at the scene or immediately after and aware
Suffers Severe ED contemporaneously with situation
which is not abnormal under the circumstances
o  owed direct D not to inflict ED bc of pre-existing relationship
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i.e. doctor/patient (only way to recover for misdiagnosis
is in this J)
o Some cts, not majority, have held a D is owed to exercise
reasonable care in the preparation of a body
o Maybe for death messages
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o Misdiagnosis
 Generally not L. If injury, get into parasitic
o A very few amount of cts treat ED like any other N case
o Toxic Exposures-cancer, HIV
 If actual harm, can recover parasitic
 Maybe medical monitoring
  exposed to toxic substance as result of N
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For AIDS, need actual exposure to virus through
some medical channel
Recover for fear during window of anxiety
knowledge and document proof the exposure will more
likely than not cause the disease
If oppression, fraud, malice-no need for more likely
than not-willful and conscious disregard for safty of
others
N per Se
Non-tort Statutes
 D-act lawfully
 B-did not act lawfully
 Not always brought into tort law
Criminal or civil statutes can create a cause of action that did not exist
before-expressly or impliedly
 Can limit options, defenses, claims, or may do nothing
Does a law govern your situation?
 No, use common law
 Yes
o Does it provide a cause of action?
o Silent, ct will decide if you can sue. Otherwise, default
o Must follow tort statute if one exists
N per se
 Violation of statute is generally N per se. get D and B. Still need C
in F, PC, and I.
 If  violated the statute, and the violation was a PC of the injury,
the  is L
Always bring common law in addition to N per se unless specifically
precluded
In determining whether or not to adopt a statutory standard to define the
standard of conduct of a reasonable person under the circumstances, cts
consider
  is within the class of persons meant to be protected by the statute
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injury must of the type meant to be protected
whether the statute is the sole source of ’s D to ,
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statute clearly defines the conduct,
 statute would impose L without fault,
 invoking N per se would result in excessive damages
 injury is a direct or indirect result of the violation of the statute.
Normally, in N per se,  already owed D to 
 Statute clearly defines the conduct breaching the D
Children not held to N per se, but is evidence of minor’s N
A few cts use licensing statutes as N per se, usually just evidence
 If you had a license, would it have occurred?
Judge has total discretion to apply N per se to nonperscriptive statute.
Standard of review is abuse of discretion.
An excused violation of a legislative enactment is not N. Five categories of
excuses, but could be others
 violation is reasonable bc of the actor’s incapacity,
 neither knows nor should know of the oaccasion for the compliance
 he is unable, after reasonable diligence to comply,
 he is confronted by an emergency not due to his own misconduct,
 compliance would involve greater risk of harm to actor or others.
Compliance with a statute is evidence of due care, not due care per se. It is
the floor of due care, but circumstances my require greater care.
 Some federal actions preempt the field, so any state regulation of
the same field is ineffective.
Breach
B<P*L.
 Breach of D occurs if the burden of prevention is less than the
product of probability of harm and the gravity of the resulting injury
 must point to N conduct and say what a safer alternative would have been
Forseeability
 Almost all results are foreseeable, but cts really mean too likely to
occur to justify risking it without added precautions
It may be N to design something when a safer alternative exists, and the
resulting injury is severe and foreseeable.
 Must anticipate the environment in which the product will be used
and design against the reasonably foreseeable risk
 Consider different trade-offs, probabilities,severity, and costs
o Protecting from one injury may cause another
 is not N if the social value of ’s conduct outweighs the risk
Standard must be external and objective. Subject belief does not matter
 Procedures in ’s handbook should not be used to show that the

standard of ordinary care should be, but standards in the manuals
of various companies might be evidence that what is usually done is
evidence of what ought to be done
o The degree of care you set for yourself may be higher than
ordinary care, and should not be used. Could be evidence
o Other manuals may be objected to because they are hearsay
Proof of general custom and usage helps show ordinary care
o Custom must have arisen out of safety considerations in order
to be used to show it was a breach of D not to employ it
o Foreseeablility
o  knew or should have known of the risk

o risk was unreasonable
o another precaution was feasible
Ordinance or statute might set a minimum safety requirement
o Custom to violate a statute is rejected
Compliance with custom is evidence of reasonable care, but it is

possible for an entire industry to be careless
Arguably ’s knowledge of the custom is implicit consent to it

Vicarious L- respondent superior
 Employee
 Committed a tort
o Intentional tort usually does not apply, unless the intentional
tort is part of their job or carrying out the owner’s business

Tort occurred within course and scope of employment
o Frolic of your own, employee is not L
fault of the employer is a separate claim
does not apply to independent contractors
employer can get indemnity from the tortfeasor
Must go through WC if within C and S of E, and not intentional
Res Ipsa Loquitur-when circumstantial evidence is especially strong
 it is possible for a  to be found N without offering any evidence


other than the incidence itself
 normally does not have to do anything until  introduces evidence
Elements of RI
o Injury or event caused doesn’t ordinarily happen w/o N
o Dispel other potentially responsible Causes
 RIL must be the only logical conclusion
o Instrumentality was under the exclusive control of the 

With comparative N, may be loosened or eliminated,
but still need to show  was more probably than not at

least a cause
o Injury caused was w/in the scope of the ’s D to 
What  can do

o Nothing
o Show reasonable care
o Attack elements of RI
RIL generally does not shift the burden of persuasion to the .

Presumption effect-shifts burden
o Some say RIL creates presumption of N

o Judge usually instructs, if this is the case
 If presumption applies,  has burden of showing not N
RIL-usually not applied to slip and fall cases bc of ’s control or

evidence of substance does not mean N more probable than not
Exploding bottle-maybe able to use RIL by proving the  was in

control when N most likely took place
Problem of multiple actors
o RIL may not help when two ’s are in control at different
times
o Does not show what was N
I/Actual Harm
  must suffer a legally cognizable harm or actual damages, unlike in



an intentional tort, in order to collect even nominal damages
Impermanent bodily changes without pain
o Need to show harm in some way
Entitled to at least nominal if harm established
PI case-PD normally not allowed unless compensatory or nominal
first, and then need willful, wanton, reckless, or malicious
Cause in Fact-also actual or factual causation
But-For
 Acted reasonably would have resulted in the injury anyway
 Evaluate what would have happened
  is only L for what he actually caused, or was a substantial factor
in causing.  was going to die or be seriously injured anyway, only

L of two





L for the particular death caused or L for his life in a seriously
injured condition.
Preemptive causation- Whoever causes it, even if something else
was going to cause it, is the cause in fact
or more persons
Separate injuries, each only L for injury caused
Indivisible injury, jointly and severally L for entire amount, as long
as a substantial Factor
Substantial factor test is usually the test when there are two or
more causes
If either would have caused the destruction on their own, they are
duplicative causes, and are still L
Alternative L-multiple s even though only one cause it
o Burden of proof shifts-must sue all possible tortfeasors, prove
all were N, cannot tell which, and the  was injured by one of

them, then can sue all bc one is definitely responsible
Market Share L
o when there are a lot of s each culpable for a particular
injury, but it is unclear who actually caused it
o Need substantial share of local market
 Prove they were at fault, were N
 Identical product
 Injury
 N or SL
 Burden of proof shifts-they are out if they prove not
them
 Several only, according to market share
  never gets full recovery
o parallel activity does not establish agreement for concerted
action claim
o Concert of action-need implicit or explicit agreement, then
both L
o Enterprise L, usually rejected
o Usually not allowed to recover for increased chance of poor
health
Proximate Cause-Scope of risk factor
 Whether  should be held legally responsible to the 
 L for unreasonable risks  created, not for reasonable or


unforeseeable
PC is the line that shows how far individuals will be held L for
consequences of their actions.
The risk or a similar one results in harm, but not when an entirely
different risk results in an entirely different harm
Violation of statute as PC
 Normally N per se
 Statute must be designed to protect against that kinds of harm and
to protect the class of persons of which  is a member
Direct Cause test-Very few cts say unbroken chain causes injury,  is L
PC

Clear majority-scope of the risk

Minority-direct cause without too many intervening
A harm is still within the scope of the risk if the same injury occurs, but in an
unforeseeable manner. variant on what was foreseeable
 Unless there was a new and unexpected factor
 Does not have to be precisely foreseeable, but is still relevant
 Harm must be of same general nature as foreseeable risk created
A harm is outside the risk if the N caused a completely different type of
injury than what was foreseeable.
 Could argue the injury was the same or different depending on wha
side you are on and how similar it is
Some cts hold the precise manner of occurrence matters, whereas others
hold only the type of injury that was foreseeable matters
Thin Skull Cases
 When the ’s conduct otherwise qualifies as a PC or a legal cause of
the ’s harm, the  does not escape L mere bc the harm was more


extensive than anyone foresaw or could have foreseen
but can argue whether responsible for any extension of that injury.
Alternatively, if dying already, only L for the amount of time would
have been alive.
Intervening causes  is N, but something else comes in and causes ’s injuries





Superseding cause becomes new source of injury
o New, unexpected, un anticipated
Do not necessarily supersede L
o Can be what made you N in the first place
o Most cts follow if it was a natural intervening cause
Act of God does not matter if injury is the same as original N
Generally, suicide not foreseeable as a matter of law
Secondary injury
o If it is something that could have been anticipated, still L
o Generally L for a subsequent injury, but not soley responsible
Note: scope of the risk and natural and continuous sequence
 Must show it was “a” proximate cause, not necessarily the only
 A superseding causes is one that breaks the causal chain



If the resulting harm is outside the negligently created risk by the
first tortfeasor, the first tortfeasor is not L
An intervening act part of the risk the first  created does not
relieve the first 
The second  must be new and independent


Not bound to anticipate something so unexpected or extraordinary.
The happening of the very event the likelihood of which makes the
actor’s conduct N and subjects him to L in the first place cannot
relieve him from L
Scope of risk may extend to intervening criminal act by third party
 A N  whose conduct creates and increases the risk of a aparticular
harm an ia a substantial factor in causing that harm, is not relived
from L by the intervention of another person, except where the
harm is intentionally caused by the third person and is not within
the scope of the risk created by the ’s conduct, but the tortious

acts themselves may be foreseeable.
If the  was foreseeable, and the risk was foreseeable, and the
intervening act was foreseeable, there is probably L
Foreseeable intervening forces are within the scope of the original risk and
hence of the ’s N
An actor is L if the N was a substantial factor in the injury.
 Not relieved by intervening act of third party if such an act was
reasonably foreseeable at the time of the originally N conduct
 Original tortfeasor is generally L for injuries or death suffered
during treatment so is also L for injuries sustained during
transportation to the medical facility
 L where a third party intervenes depends on hether the act is a
normal and foreseeable consequence of the situation created by the
’s N.
Forces of nature
 If a force intervenes, but the injury was foreseeable, the  is still L.

If act of god was the only thing that could have cause it, then
maybe it was not foreseeable, or there was no D breache
Defenses
Regular defenses
 Attack the elements
Contributory N-Very few states
Affirmative defenses, assuming no regular defenses
 S of L
 Immunities-maybe for spouses, parents, govt, charities
 Maybe if  was engaged in illegal conduct
 Mitigation- not responsible for what  should have reasonably
mitigated
Contributory N/Comparative responsibility
 All the same requirements as before to establish L of 

Figure out if responsible (D, B, C in F, PC, I) and see if anyone else
meets the criteria as well
Comparative responsibility- Most states reduce ’s damages by amount of
fault


Jury come up with 100% faultPure-10 Js
o  99% at fault,  collects 1%


o No last clear chance
Modified-22 states-’s N cannot exceed combined s
Modified-’s N cannot equal ’s

Joint and several L- can enforce against either tortfeasor
o Cannot recover more than full
o Contribution-obtain entire judgement against one tortfeasor,
and the  that paid can obtain contribution
o  may bring other ’s into original suit
o Other  may not be able to obtain contribution of other
tortfeasors are insolvent or immune, but  gets paid

Several only states
o Only one tortfeasor is sued and does not bring in other
people, but cannot divide the injury, the  is L for the entire
amount-No contribution
o Several L and comparative fault apportionment among
tortfeasors
o Trier of fact makes comparative fault apportionment of L. No
tortfeasor is L for more than his share.


If he sued A and B, and A settles. A paid 10,000. Judgement is for
8000. B doesn’t have to pay. If A pays 2000, and B goes to court,
B does not have a right of contribution.
If it was a several jurisdiction, can only collect whatever they are
responsible for from each person.
Counter to comparative N
  engaged in reckless or intentionl conduct


Maybe statute or common law D to protect the thing that happened
in a case involving negligent rendition of a service, including
medical services, a factfinder does not consider any ’s conduct that
created the condition the services was employed to remedy.
 Last clear chance-mostly discarded in comparative N
o After  was N, she was helpless
o  discovered or should have discovered
o  failed to exercise reasonable care
’s illegal activity
 ’s illegal activity must have been part of the reason the injury was
caused in order to be a bar
Determining apportionment
 Nature of the risk-creating conduct
 Strength of connection btw conduct and the harm
Rescuers are generally not comparatively at fault unless reckless.
 may be able to claim immunity from comparative fault with regard to the
person she is rescuing, but maybe not to a third person who negligently
injures her while she is trying to rescue someone else.
Res Ipsa in comparative fault systems
 Arguably, jut reduce recovery for comparative fault
 Reduce for amount of control of , but if too much control, may not
be able to draw RIL.
Disregarding ’s fault on causal, scope of risk, or superseding cause grounds
 ’s non causal fault- didn’t cause injury, no recovery
 ’s fault as a superseding cause, or ’s injury not within the scope



Causal apportionment of separate injuries-if  and  cause separate
injuries, they are L for the injuries they caused, without reduction
Separate but indistinguishable injuries
o Causal apportionment if possible, otherwise possibly fault
apportionment
Minimizing damages rule
o  is required to minimize her damages by taking reasonable
efforts and expenses
o However, may be held that this is just comparative fault, and
damages can be reduced by the amount she was at fault by

furthering her injury.
Disregarding ’s fault on causal or scope of risk grounds
o If  was not a cause in fact of her own injuries, no
contributory N
o Also, may not be within the scope of the risk created by the
’s N
Implied assumption of the riskExpress or implied in a valid K
Unreasonable assumption of the risk
 Similar to contributory N
Because of the consent, there was no D
Test:person of normal intelligence in same position as 
 Knowledge of the risk
 Appreciation of the risk
 Voluntarily exposed herself to the risk
Where  is retained by or for the specific purpose of aiding the N  to deal
with a known danger, cts hold the  has contractually assumed the risk
Generally No D for an open and obvious danger
 assumes risks inherent in the activity, but not those not inherent in the
activity or those that greatly increase the same risk
Primary assumption of the risk-no Legal D
 May be no D if  manifests assent to accept the risk of N conduct
 May be no D for reasons of public policy
Secondary assumption of the risk-owe a D of care, but  proceeds to
encounter known risk-comparative responsibility
Concerned with what exactly was consented to in AR
 Key is to find out what risks are inherent in the activity
o Contact sports-generally only L for reckless
Workman’s comp
 Generally cannot sue for N of employer w/in the course and scope
of employment. May not apply to all employers
o CN/AR-total bar
o WC-don’t apply CN/AR-Administrative proceding
o If WC does not apply, cn use CN/AR
 Master/servant-D to provide a reasonably safe place v
open and obvious or inherent in the job
Mass torts
 Volume
 Dispersion
o Who to sue-s

o Where are they-J
o Do they exist
Management-aggregate
o Rule 23-class action
 Common, typical, voluminous, same rep
o Rule 42-consolidate s

 Pretrial and trial purposes
 Usual no mreot ahn 5 cases at the appellate level
o Multi-district litigation
o Bankruptcy
4 kinds of mass torts
o Single-event (i.e. plane crash), clear causes, injury at the
same time and place, known parties, clearly a proximate
cause
o Multiple events (i.e. drug), clear cause, similar place and
time, parties are known, probably a proximate cause
o Multiple events (asbestos), cause unclear, don’t know where
or when it occurred, parties are usually known, and the
proximate cause is questionable

o Multiple events, unknown cause, time and place of injury is
unknown, parties are indeterminate, and the cause is novel or
unprecedented
Latency
o Science
o Must show it can cause and did cause
o Headlines always get ahead of the case
o General and specific
9/11

victims compensation fund
o Gave NY exclusie J
o Provide the system for compensation
o  could only be sued to the extent of insurance

o special master was the first and last resort
o short SOL
o Could only recover for physical injuries
o 98 percent of victims participated
Victims sued airlines, airpoert security companies, owners and
operators of WTC buildings
Alleged aviation s negligently failed to fulfill security

responsibilities
o Security, penetrable cockpit
Alleged building s negligently constructed, maintained, and

operated the buildings, and failed to provide adequate evacuation
plans
s argued no D owed to ground victims bc not foreseeable

o held hijackined was foreseeable
o s could have foreseen crashed into towers given near miss
and studies analyzing the ability to withstand an airplane
crash
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2/20/2002 2:02:00 AM