Tort Outline

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Table of Contents
NEGLIGENCE
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INJURY
EMOTIONAL DISTRESS
DUTY
AFFIRMATIVE DUTIES
SPECIAL RELATIONS
PREMISES LIABILITY
ECONOMIC LOSS
BREACH
STRICT LIABILITY
HIGHER STANDARD: COMMON CARRIER
ORDINARY/REASONABLE CARE
TENDER YEARS DOCTRINE
INDUSTRY AND PROFESSIONAL CUSTOM
EXPERT WITNESS TESTIMONY/PROFESSIONAL CUSTOM
COST-BENEFIT ANALYSIS
RES IPSA LOQUITOR
NEGLIGENCE PER SE
CAUSATION
ACTUAL CAUSE
PROXIMATE CAUSE
DEFENSES
CONTRIBUTORY NEGLIGENCE (MINORITY)
ASSUMPTION OF RISK
COMPARATIVE NEGLIGENCE
GOVERNMENTAL IMMUNITY
CHARITABLE IMMUNITY
INTRAFAMILY IMMUNITIES
DAMAGES
COMPENSATORY DAMAGES
PUNITIVE DAMAGES: VERY RARE, AWARDED IN 5% OF VERDICTS
JOINT LIABILITY AND CONTRIBUTION
STRICT LIABILITY
ANIMALS
ABNORMALLY DANGEROUS ACTIVITIES
NUISANCE AND TRESPASS
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5
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8
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10
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12
13
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20
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22
23
24
25
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27
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28
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INTENTIONAL TORTS
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BATTERY
INTENT
DEFENSES TO BATTERY: CONSENT AND SELF DEFENSE
DEFENSE AND RECAPTURE OF PROPERTY
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
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30
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33
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Torts Outline
Intentional Torts
General Rule: every intentional tort involves a volitional act done with intent.
Meaning that the act was been done under the defendants control.
Intent
• No desire to bring about consequence however knows that the consequence
with substantial certainty will occur. Intent will still be found.
• Transferred intent-intent from property to victim
Alienation of Affections-tort in 5 states
o Fitch v. Valentine-alienation of affects is the only way spouses can
seek legal redress in the state of Mississippi for a third party
intentionally interfering with their marriage.
 Dissent: shift of societal roles undermines the purpose of the
tort.
o Similar cases: Murphy v. Colson, Coulson v. Steiner
Mayr v. Osborne-surgeon mistakenly fuses wring level on patients spine during
operation. Wife of patient sues claiming battery because doctor went beyond scope
of consent. Court rules due to intentionality issue case does not constitute a battery,
but however negligence.
Negligence-failure to exercise ordinary care
To have a tort claim for negligence all four elements need to made (prima facie
case):
1. Injury
2. Duty-Injury is implied with the duty
3. Breach-violated relevant standard of care
4. Causation-actual and proximate
5. Damages
Injury
• Adverse effects recognized by the law of negligence
o Physical harm: bodily and property
o Loss of wealth: economic
o Emotional distress
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Emotional Distress
• Liability based on foreseeability rule-plaintiff may recover for mental and
emotional upset whenever it is determined that the psychological harm to the
plaintiff was foreseeable.
o Historical position
 Very Minority Rule: Impact Rule of Mitchell v. Rochestercould not recover for manifestations of fright where there was
no impact, has to be impact to recover from emotional distress
(pregnant woman suffers miscarriage from being scared of
horses).
o Minority Rule: Zone of Danger
 There can be no recover for physical injuries sustained by a
plaintiff as a result of the shock of witnessing another’s danger
who is out of the zone of danger or range of ordinary physical
peril.
 Waube v. Warrington (mother witnesses death of child
and dies from emotional distress).
o Mother outside the zone of danger due to her
watching from window so she could not recover
o Impact and Zone of Danger/Toxics
 Impact alone is not sufficient to trigger the liability for ensuring
emotional upset. There must be proof that the contact with the
toxic caused present physical injury.
 Metro-North Commuter RR Co. Buckley-disease from
toxic must be a prerequisite to recover from emotional
upset.
 Palmer v. Nan King Restaurant-could not recover from
biting into Band-Aid
 Hagan v. Coca Cola-could recover from drinking water
bottle with condom due to phenomena of AIDS.
Different standard of proof
o Majority Rule: Liability to Bystanders
 Three elements to establish if duty of care is owed or injury to
plaintiff should be foresaw:
 Plaintiff located near the scene
 Whether the shock resulted from emotional impact from
observance of the accident (sensory)
 Whether plaintiff and victim were closely related
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o Dillion v. Legg: Mother witnessed death of child in
car accident. Mother able to recover due to it being
reasonably foreseeable she would suffer emotional
distress based on the three elements.
o Similar cases: Pizaorro v. 421 Port Associates
(must be immediate family member), Hamilton v.
Nestor (injuries not severe enough), Catron v.
Lewis (not in zone of danger based on Nebraska
law).
o Bystander v. Direct Victim
 Elements to recover from emotional distress being a bystander
 Closely related to victim
 present at the scene (sensory)
 suffered more emotional distress that would be
anticipated in an disinterested interest.
o Distinction from pervious bystander test.
Foreseeability considered to an extent in order to
limit claims
o Thing v. LaChusa-mother did not witness accident
but was near the scene. Could not recover because
did not meet necessary elements of bystander test.
 Effort to rigidify guidelines in Dillion test,
limits amount of negligence cases brought.
o Entergy Mississippi, Inc. v. Acey-child electrocuted
and dispatcher told mother. Mother could not
recover because she did not past bystander test.
o Burgess v. Superior Court-baby suffers injuries do
to C-section mother was unware of injuries due to
being under atheistic. Could recover based on
direct victim because doctor can only access fetus
through direct impact to her body.
 Molien v. Kaiser-wife incorrectly diagnosed
by doctor to have syphilis where doctor
informed wife to tell husband to get tested
and seek treatment. Duty owed extended
directly to husband of patient. Risk of harm
to husband was reasonably foreseeable.
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Duty
o General or Limited Duties
o General duties are to take ordinary care to avoid causing physical
harm to foreseeable victims.
o Limited duties are affirmative duties to rescue or protect, pure
economic loss, premises liability and emotional distress.
• Who do you owe a duty of care to?
o Foreseeable victims to act
• What is the standard of care?
o Strict Liability
 Ex: dog bite statue, no matter if you took reasonable care still
liable
o Higher Standard
 Ex: Common Carrier-public transportation
o Ordinary Duty of Care
 Majority of tort cases
o Gross negligence
o No Duty
 Tender years doctrine, young children have no duty
The privity rule: A plaintiff who lacks privity of contract with a defendant may not
sue the defendant based on negligent performance of a contract made between the
defendant and a third party.
o Winterbottom v. Wright-no privity. No contractual relationship
between defendant and plaintiff therefore plaintiff cannot recover.
Macpherson v. Buick Motor Co.- A manufacturer of articles that are not inherently
dangerous but that may become dangerous when improperly constructed owes a
duty of care to anyone beyond the purchaser who might foreseeably use the
articles, when it is reasonable to expect no further tests will be performed.
o Dissent argued reasoning went against Winterbottom privity rule.
 Foreseeability-If a reasonable person would have anticipated that an injury
was likely to result from the negligence of another person then he/she is
liable.
o Mussivand v. David (Duty to inform partners of sexual transmitted
diseases and duty extends to the wife/husband of their sexual partner.
It is foreseeable that the injury would effect them)
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Affirmative Duties
To rescue or to protect
The law imposes no duty upon the individual citizen to care for the sick or the
unfortunate who are poor.
 Tucker v. Burt-woman sick with infectious disease. Invited by tenant of
residence. Ordered to leave by landlord due to her illness. Court says
defendant only had a duty if he could foresee her removal would worsen her
condition.
A lessor of a boat has no legal duty to refrain from renting to and consequently to
rescuing an intoxicated person who is not clearly helpless
 Osterlind v. Hill
Good Samaritan Rule: defendant that enters into an affirmative course of conduct
affecting the interests of another is regarded as assuming a duty to act and will be
liable for negligent acts or omissions…because one who undertakes an act must do
it with care. Duty found if:
o Defendants actions increased harm to another
o Other person reasonably relied on undertaking to his or her detriment
 Mayli v. USA Water Polo, Inc.
 Buck v. Greyhound Line (mustang stalled with twin daughters)
 Good Samaritan Statute in NV asserts that it must be an
emergency for individual to protected. In this case it was
not an emergency when Reighley gave his services
therefore he was not protected.
Special Relations
General Rule: Individual does not have a duty to aid or protect another person even
if he knows that person needs assistance
 Exceptions: Special Relations
o Baker v. Fenneman & Brown Properties (taco bell case)
 Tb had a duty that arose out of their special relationship, failed
to conform to standard of care which Baker then sustained
injuries from as a proximate result.
 Valid public policy argument that TB had a duty because it was
providing a service to the public from which they gained
economic benefit from.
 Reasonable actions of first aid, not the same standard of
care as an ER doctor obviously.
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o Tarasoff v. The Regents of the University of CA
 Hospital (therapist) had special relationship with the patient
who murdered Tarasoff and therefore owed a duty to exercise
reasonable care of warning of their patient’s dangerous
condition.
 Argued patient provider privilege but there is not
privilege when patient is a threat to himself or others.
o Kulligoski v. Brattleboro Retreat
 Determined it was a duty to warn parents of the risk of sons
dangerous behavior and train them how to handle son if she was
discharged.
Premises Liability
3 step process: Determine status, determine duty and if duty was breached
1. Invitee
a. Enters premises with express implied invite for mutual benefit
i. Duty
1. Reasonable care to render premises safe warn if risks;
eliminate unreasonable unsafe and not obvious danger.
a. Austin v. Kroger-fell at korger store where he
worked. Invitee at place of employment.
2. Lisensee
a. Enter at own convenience, pleasure of benefit
i. Duty
1. Warn of hidden/dangerous conditions that owner should
know about and not open/obvious dangers
a. Olier v. Bailey-chased by domestic goose in
garden, fell and was injured.
3. Trespasser
a. Enters without permission or invite. Needs to be without
inducement/enticement
i. Lowest duty
1. Duty to avoid willful injury.
a. Leffler v. Sharp –fell through roof at quality inn
lounge. Had no permission to be on roof
b. Toomer v. William C. Smith-hops fence to retrieve
dog and is injured. Status is a trespasser however
court determines it was necessary to enter property
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to retrieve his property (dog). Fence was not
marked that it contained dangerous grease.
4. Exceptions
a. Known Trespasser
i. Ex: known trail people cut through, however you know that
they are there you have a duty to warn.
ii. Public policy is to maintain safety therefore standard of care is
higher.
b. Attractive Nuisance
i. Requires the owner to foresee that child may be attracted to
property for some reason
1. Powell v. ISC North, LLC-children playing on frozen
pond. Court determined not an attractive nuisance where
children could not have realized or appreciated danger
c. Slip and Fall
i. Stores responsibility for causing the accident and had
reasonable notice that there is danger
Economic Loss
Persons who lose existing wealth or even expected income may stand to recover
from another who has carelessly caused such loss. Courts reluctant recognize
duties to look out for another person’s economic well being.
• Aikens v. Debow-economic injury by interruption of commerce is not
recoverable in a negligence action absent damage to person, property or a
special relationship between the parties.
Breach
• Once duty is established it should be determined whether or not that duty
was breached
o Ordinary Care-contrast possible alternative standard
o Prudence-cautiousness, barely prudent person is negligent, extremely
prudent person is not liable, ordinarily prudent person is not negligent
o Custom-except in malpractice cases
o Cost Benefit Analysis-Hand Formula
o Res Ipsa Loquitiur-permits some plaintiffs to prevail without
evidence of how defendant was careless.
o Negligence Per Se: Breach as a matter of law, statute or law violation
Judge vs. Jury
• Duty is a question of law, the judge interprets law
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• Jury figures out whether the duty was breached
o Myers v. Heritage Enters, Inc. (CNA case with Hoyer lift)
 Determined to be a duty, however wrong jury instructions for
standard of care. Should have been ordinary care standard not
professional care standard.
o Martin v. Evans (tractor parking space)
 A jury decision on a negligence claim may not be overturned as
being against the weight of evidence where the jury’s
determination hinges entirely upon an assessment of witness
credibility. There was conflicting testimony to the
circumstances involving the accident, the jury choose to believe
Evans set of facts.
Strict Liability
• Pingaro v. Rossi-meter reader bit by dog while on the job (lawfully on the
property). Owner liable with strict liability because the case met three
elements of being owner to the dog, dog actually bit and the plaintiff was
lawfully on the property.
Higher Standard: Common Carrier
• Jones v. Port Authroity of Allegheny County-Accident on PAT bus.
Common carrier has a heightened duty of care owed to fare paying
customers.
Ordinary/Reasonable Care
• Campbell v. Kovich-lawnmower accident where plaintiff was stuck in the
eye. Person operating lawnmower exercised ordinary standard of care and
there was no evidence to suggest he did not.
• Adams v. Bullock-Child burned by wires of trolley line. No evidence to
show trolly company did not adopt all reasonable precautions in line with
it’s duty. Also, type of accident was not foreseeable.
• Vaughn v. Menlove-hay burned damaged cottages. Ordinary prudence
standard used despite defendant’s intellectual limitations.
Tender Years Doctrine
• Appelhans v. Mcfall-plaintiff hit by 5 year on bike resulting in hip fracture.
Child under seven years old cannot be held liable for negligence because
they cannot appreciate risks of danger.
o Counterargument-doctrine not appropriate for modern times where
kids exposed to technology that requires them to have good judgment
at early age.
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• Nelson v. Bell-four year old threw toy which hit baby sitter in the eye and
caused her to lose vision. Cut off age for a child to be held negligence is
five. Same reasoning in Appelhans case. (Restatement)
o Majority Rule-Bright line cut off age
o Minority Rule-Categorizes kids into age groups to determine if
capable of negligence.
Industry and Professional Custom
Was duty breached based on custom?
• TJ Hooper
o Tug boats lost in the storm that were not equipped with radios. It was
common for ships to have radios at that time therefore the company
should have taken reasonable means to make the tug boats seaworthy.
o Custom relevant, but not decisive.
• Johnson v. Riverdale Anesthesia Associates
o Professional standard of care used within medical community not
what one doctor would do. Standard is not to preoxygenate even
though expert individually would. Testimony barred from cross
examination.
• Condra v. Atlanta Orthopedic Group.
o Expert witness personal practices admissible as substantive
evidence and to impeach the expert’s opinion regarding the
applicable standard of care.
Expert Witness Testimony/Professional Custom
 Personal practices admissible as substantial evidence…Condra v. Altanta
Orthopedic Group
o Tort Reform Act-assess qualifications of expert witness based on their
experience and practice.
 Prudent Patient-involves what the physician should disclose to a reasonable
patient in order that the patient might make an informed decision.
 Professional Standard-what a reasonable physician should disclose to the
patient.
o Informed Consent Doctrine-duty of physician to disclose information
necessary for patient to make an evaluation of risks. Largey v.
Rothmen (took out nodes from patient’s breast without consent)
 Reasons for rejection of professional standard
 Issue with finding physicians willing to breach the
community of silence by testifying against colleagues
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 Custom shouldn’t be set based on medical community
because the facts of the situation varies from patient to
patient.
o Not in line with self determination-patient having
the right to determine what treatment is in their
best interest
Cost-Benefit Analysis
 Hand Formula
o When B < PL, the plaintiff has breached the duty if doesn’t take on
burden. B-burden, P-probability, L-magnitude of harm resulting from
the accident.
 Example when burden of precaution larger than intended
benefit: Rhode Island Hosp Trust Bank v. Zapata Corp: Bank
randomly check signatures on checks to save expenses.
Checking every check by hand does not decrease the amount of
forgeries.
 Example when burden of precaution is low enough: United
States v. Carroll Towing
 Burden of having someone on board was low enough
compared to the probability that the ship would crash.
Res Ipsa Loquitor
 Mere fact that the accident occurred can be used as evidence. No other
alternative to accident, Bryne v. Boadle (hit in the head with flour), Kamabr
v. St. Francis Hosp. (medical pad found inside plaintiff, res ispa not found
because alternative found was that patient swallowed pad.)
 Reliefs the plaintiff of what exactly the defendant did wrong.
 No alternative to accident or direct evidence of the accident besides the
accident itself for Res Ipsa to apply. Anderson v. Union Pacific RR Co(train
operator falls out of collapsing chair, direct evidence pointed to that it was
the bolt of the chair that caused the accident, res ipsa therefore does not
apply).
o 3 conditions to assert Res Ipsa
 The incident does not usually occur without negligence
 Incident was caused by instrument that was in defendants
control
 The plaintiff did not contribute in any way to the incident
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o When juries are given the jury instruction of res ipsa they are
permitted to consider conflicting inferences and are not compleled to
find for the plaintiff based on res ipsa.
 Res Ipsa Scenarios
o Plausible
 Object falls out of window and lands on plaintiff
 Airplane crash (plane and evidence destroyed)
 Mishap during surgery on unconscious plaintiff, unrelated to
underlying medical donation
o Implausible
 Multiple car collision
 Slip and fall
 Improperly designed product causes injury
Negligence Per Se
 Breach is established as a matter of law
o Violation of a statute that establishes the standard of care is
negligence per se.
 Dalal v. City of New York: not wearing eyeglasses when in a car
collision. To wear eye glasses is a restriction of driver’s license
because the restriction established a standard of care.
o Violation of safety regulations by a party that had reason to know
of such regulation is negligence per se under certain
circumstances
 Bayne v. Todd Shipyards Corp.: Employee fell from loading
platform and was injured. Platform did not have rails in
compliance with the administrative safety regulations.
Company had reason to know of the importance of the
regulation through public hearing.
 Counterargument: Minor regulation violations being
negligence per se is unreasonable.
o Statute has to be designed to protect against event that caused
injury
 Victor v. Hedges: Defendant parked on sidewalk to show
plaintiff new cd player when plaintiff was struck by second
defendant. Against the law to park on the sidewalk, however
the law is not to prevent people from being hit by cars but more
so to not impair pedestrian access.
 In CA, negligence per se if:
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 Violation of statute
 Proximately causing the plaintiff’s injury
 Statute is designed to protect against the event that
caused the plaintiff’s harm
 Statute is designed to protect a class of persons in which
the plaintiff is included.
Causation
Actual and Proximate Cause
Actual Cause
 Factual Cause or But for Cause
o ∆’s breach of duty caused π’s harm (also called cause in fact, factual
cause, but for cause)
o Okay to have multiple causes even though you only need one.
Substantial Factor test: some court’s use substantial factor to refine or
clarify but-for cause rather that replace it
 Normally used when there is multiple causes
 Some other courts have invoked substantial factor language to set a lower,
more π friendly burden of persuasion.
 In a medical malpractice context- if ∆’s malpractice increased the risk of π
injury, it is said to be a substantial factor contributing to the injury.
 Substantial factor is also used to identify a separate proximate cause
requirement that further limits negligence liability beyond the limit set for
the by the but-for-test.
Proof of Causation
 Standard
o Preponderance of evidence, more likely than not
o Most likely will be a jury question of fact not law
 Expert
o Testimony needs to be relevant and reliable
 Lahare v. Valentine Mechanical Services
o Π brought a generator from ∆ where he said she could install the
generator on the side of her home, however local ordinance
prohibited. As she is getting signatures for zoning application she trips
and hurts herself.
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 Rule: But for the incorrect instructions regarding the generator the π would
not have tripped over the side walk (actual cause met). However, the harm
has to be foreseeable in terms of the breach of duty.
o In this case it is not foreseeable that tripping over a side walk is the
result of obtaining a proper permit. (proximate cause not met)
o Policy concerns with allowing plaintiff to cover when there is no
proximate cause?
 Need to control the amount of lawsuits within the judicial
system
 The injury is too remote from the breach of duty to recover.
 Cannot recover if there are intervening and superseding causes.
In this case, the side walk was an intervening cause because the
side walk occurred in between her way to obtain the permits
and it caused the injury. Superseding cause is one that the
defendant could not have reasonably foreseen.
New York Central RR v. Grimstad
Rule: ∆ action has to be actual cause of the injury to be held liable
 ∆ husband falls off the ship into the water. ∆ suing for
negligence because the ship was not equipped with life
preservers.
 It cannot be shown that if life preservers were on the ship it
would have saved husband. When ∆ got back to husband he
was already under water. No but for cause/actual cause.
 Too much speculation regarding causation.
Zuchowicz v. United States
Rule: If the negligent act increases the chances that a particular
accident will occur AND the harm does occur there is support that but for
that act the harm would not have occurred. -> Substantial Factor Test
 Wrong prescription of medicine dosage which lead to fatal
cardiovascular. Doesn’t matter that it cannot be pinpointed whether
the incorrect dosage caused the disease however if the incorrect
prescription increased the chances that the negligent act would occur
then that is enough for actual cause.
Kingston v. Chicago & NW Ry
Rule: When two or more people both are the proximate cause of the injury
and one is unknown then the π may recover the full amount of damages for
the one wrong doer.
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 Two fires where it is unknown what started the second fire. The
railroad started the first fire therefore the π is able to recover from the
railroad the full amount of damages. Burden shifts to the ∆ to prove
that it is not.
o Cannot recover if injury was caused by a natural disaster. So if
a forest fire contributed to the railroad company’s fire then the
π would not be able to recover.
Alternative Liability
Summers v. Tice
Rule: Two independent tortfeasors may be held jointly liable if it is impossible to
tell which one caused the injuries and the burden of prove shifts to the defendant
absolve themselves from liability or apportion the damages between them.
 Two men quail hunting, but shoot in the direction of plaintiff and
plaintiff is injured. Unknown which pellet was shot by which man
 Both served as the proximate cause of the injury.
o Could be foreseeable that either of the men caused the injury.
 Both tortfeasors need to be present for alternative liability.
 Policy Concerns:
o Victim being deprived of recovering because it was unknown
which of the two tortfeasors caused the injury. There was an
actual injury and both tortfeasors are known.
Market Share Liability
Sindell v. Abbott Laboratories
Rule: Where multiple manufactures of goods are named as defendants and it
cannot be determined which manufactured caused the precise harm, the
manufactures will be held proportionately liable in accordance with their market
share at the time in that specific state.
 In order to absolve from liability manufacture would have to prove they did
not manufacture that good. With the exception of NY where it does not
matter.
 Restatement: Generic nature of product, long term latency period of the
harm, inability of plaintiffs to discover which defendant’s product caused the
plaintiffs harm.
 Most states have not took a position on market share liability.
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Loss of Chance of Survival
Traditional Rule: If the patient walked in with over 50 percent chance of survival
then a failure to detect would allow the plaintiff to recover. If it is under 50 percent
then the plaintiff would not be able to recover.
Majority/Modern Rule: Any loss of chance of survival is actionable. Can be under
the 50 percent.
Herskovits v. Group Health Cooperative of Puget Sound
 Plaintiff had less than 50 percent chance of surviving from lung cancer
 Cancer not detected in time
 Duty of reasonable care breached by claiming the illness was the common
cold. Chance of survival dropped 14 points from the time of first visit until
diagnosis.
 Policy: Washington court rejects traditional rule because it would
automatically deem Washington hospitals not liable for chance of survival
under 50 percent.
 Counterargument: too speculative, proximate cause cannot always be shown.
Falcon v. Memorial Hospital:
 Mother dies during child birth due to epidural and not given IV
 If IV would have been provided she would have had a 37% of survival.
 Not found liable because π could not prove that the ∆ breached their duty.
o Was it reasonable to provide an IV?
o Was that industry custom within the medical community?
o Hand formula: was the burden of providing an IV less than the
probability of the harm suffered?
Reliability of Expert Testimony
General Electric Co. v. Joiner
Rule: When reviewing a trial court’s decision to admit or exclude testimony of an
expert witness the appellate court should apply an abuse of discretion standard.
 SCOTUS rule that district court did not abuse discretion by excluding
testimony because testimony was too speculative and did not prove
causation. Testimony used a linking cancer to mice when exposed to the
toxin and other studies were used using a different chemical.
Beyer v. Anchor Insulation Co.
Rule: π responsible for showing that expert testimony is relevant and reliable.
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 Insulation foam sprayed in home to assist with the process where the toxic
was in the foam. Π became sick and claimed the exposure to the toxin
caused his illness. Court determined that the testimony was not reliable
because methodology used a small population and could not establish
causation.
Proximate Cause
Rule: ∆ liable for harms that a reasonable person should been able to foresee. Only
reliable for conduct that arises outside of the ∆’s duty of care.
 There are actual causes that are not the but for cause because they are not
foreseeable.
General Rule: if criminal acts of someone else breaks the causal chain then the ∆ is
not liable.
 Exception: if it is foreseeable that the criminal act would occur
simultaneously with the negligent conduct then the ∆ is liable.
o Brower-train crashed into wagon where it was destroyed and the
barrels were scattered on the ground. Thieves stole from the barrels
and cargo, however the railroad employees too engineers to prevent
thieves. Were able to fight off thieves.
 Foreseeable that the scattered cargo would attract thieves
because the RR hired engineers to prevent this exact problem
meaning that they definitely foresaw the event. Not an
intervening cause, but a joint tort.
 Rule: when a ∆ engages in conduct that negligently injuries a person is also
responsible for injuries of a third party who is attempting to rescue that
person. -> danger invites rescue
Wagner v. International Ry.
 The cousin of π negligently thrown of train. Π goes after cousin to
look for his body. Train conductor follows him with torch when his
foot gets caught and he falls over bridge. ∆ held liable for the injuries
suffered from both parties because danger invites rescue therefore it
was foreseeable that the third party would be hurt. Furthermore, ∆
owed duty to π to not put him in a position that would cause harm.
(Cardozo opinion)
o Policy: Want to encourage people to rescue those who are in
danger. If persons had to worry about not being able to recover
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from injuries sustained when rescuing someone they would not
intervene to help others.
Direct v. Reasonable Foreseeability
Old Rule: Once negligence was determined it did not matter if the harm cold be
foreseen.
Polemis
 It was not reasonably foreseeable that the plank falling would cause the
entire ship to explode. However, during this time because negligent
could be determined, ∆ was liable for damages and the action was
considered not to be too remote.
Rule: ∆ is only liable for the consequences flowing from his negligent act that are
foreseeable to a reasonable person at the time of the negligent act.
Overseas Tankship v. Morts Doc & Engineering Co., Ltd
 Π ship leaked oil into the harbor and required ∆ to cease welding
because the tide carried the oil. ∆ supervisor asked whether the oil was
flammable and he was told it was not therefore he directed his
employees to continue with work. ∆ wharf was then destroyed a few
days later after a piece of debris floating in the oil caught fire. Not held
liable because it was not reasonably foreseeable that a piece of debris
floating water would ignite the oil.
 Policy: Old rule is unfair as it would have subjected π to limitless liabily
for acts not reasonably foreseeable just because the harm was a direct
result of the negligence. If the harm done does not flow naturally from
the negligent conduct then you should not be able to recover.
Palsgraf-Foreseeable Victim
Rule: ∆ is only liable for negligence if he owes a legal duty to the π and breaches
that duty, and if the resulting harm was reasonably foreseeable.
 Π was standing on platform owned by ∆ when fireworks exploded which hit
a scale and the scale then injured the π. Two men were running to catch the
train when one of them dropped a package of fires which exploded. The π
was not a foreseeable victim because the harm was not foreseeable. Also, if
she was within the zone of danger it may be more reasonable. But, from
where she was standing it was not.
o Andrew’s Dissent-but for the fireworks exploding the π would not
have been injured. The fireworks are also the proximate cause of the
injured because it flows naturally from the actual cause. If the π is
standing on the train platform where fireworks have exploded it is
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foreseeable that she would be able to recover. There is no intervening
events. Furthermore, the π was a paying customer therefore a duty
was owed and π breached that duty.
 Scholars agree with Andrew’s reasoning, but not conclusion.
Scholars agree that duty was owed to π but they do not think the
harm was foreseeable.
Difficulties with Proximate Cause
Remoteness
o The plaintiffs injury is too far removed in time, space or both from the
∆’s negligence Herbert v. Enos- shocked from overflow toilet. Too
extraordinary, injuried too far removed.
o Used to be dispositive, but now just one of multiple factors in
determining proximate cause.
Third Parties
o Was the third party act foreseeable? If so, ∆ is liable.
Types of Foreseeability
o
o
o
o
Unforeseeable π (ex: Palsgraf)
Unforeseeable extent of harm (eggshell π rule)
Unforeseeable type of harm (Polemis)
Unforeseeable manner of harm (Marshall v. Nugent)
Rule: A ∆ negligent conduct may be the proximate cause of injuries occurring to a
π after the actual negligent conduct if the risk of those injuries is a foreseeable
consequence of the negligent conduct.
Marshall v. Nugent
 Oil truck (∆) cut the corner and forced the π of the road. Π exits the car to
stand on highway to get help by truck driver to pull car back on the highway.
Second ∆ hits π when trying to avoid oil truck blocking path. Proximate
cause come after negligent conduct of truck driver. Consequence was
foreseeable and therefore π can recover. Reasonably foreseeable that π
would exit car after collision therefore putting him at risk. Remote in time,
but not in distance.
Rule: A ∆’s negligent conduct is the proximate cause of a π’s injury if but for the
negligent conduct, the injury would not have occurred and the conduct is a
substantial factor in bringing about the injury.
Virden v. Betts and Beer Construction company
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 ∆ incorrectly installed the ceiling at school where π had to stand on a latter
to fix. The π fell from the latter and was injured. Court says ∆ negligent
action was not a substantial factor in bringing about the injury.
o How is substantial factor test different from being reasonably
foreseeable?
Defenses
Contributory Negligence (Minority)
Rule: When a π fails to use ordinary care in avoiding an obstruction caused by a
defendant, the π may not recover damages from the ∆.
Butterfield v. Forrester (1809)
 ∆ placed pole in the middle of public road when repairing his house. Π left
bar and began riding horse extremely hard down the road. Pole would have
been visible by a reasonable person who was not riding their horse
extremely fast down the road. Cannot recover.
Rule: Even if a π engages in unsafe activities, if his injuries are ultimately caused
by a ∆’s negligence, the ∆ may be liable.
Beems v. Chicago, Rock Island (1882)
 Brakesman noted engine running too fast and gave a signal to check the
speed. Drivers ignored signal, thus π went to uncouple two cars where his
foot got stuck and he was killed by the moving cars.
 Reasonable jury could find that the π’s death was ultimately the fault of the
railroad company. Jury could also find that π expected that employees would
obey his signal. The failure to obey the signal is negligent. The π actions are
not negligent because it was an accident.
Rule: To escape liability based on π’s contributory negligence, ∆ must prove π’s
contributory negligence was a proximate cause of the π’s injury.
Gyerman v. United States Lines Co. (1972)
 Fishmeal needed to be stacked a certain way. Not stacked properly and π
tells ∆ but nothing is done. Injured when fishmeal fell on him. ∆ fell to meet
burden of proof that π own contributory negligence of not working in the
environment was the proximate cause of his injury. Had to prove failure to
report was the factual cause and did not. Record actually showed that they
still would have done nothing to improve conditions.
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Seat Belt Defense: The amount of damages may not be reduced based on ∆’s
negligent harm caused to π by the fact that π was not wearing a seatbelt.
Derheim v. N. Fiorito Co. (1972)
 Truck driver made illegal legal turn and collided into π who was not wearing
a seat belt. ∆ argued that the fact that π was not wearing seat belt worsened
injuries (contributory negligence) and therefore damages should be lowered.
 Policy: May cause innocent plaintiff’s to suffer w/o compensation especially
if there is no statutory requirement to wear a seatbelt.
Last Clear Chance: Used by π’s to rebut claim of contributory negligence; it states
that where the π would otherwise be held to have been contributory negligent, the
∆ will still be liable if after all negligence by the π had occurred, the ∆ had a last
chance to avoid the harm, yet failed to do so. Thus, it negates the effect of π’s prior
contributory negligence and allows recovery. Courts have relied on last clear
chance to avoid the harsh results of contributory negligence.
Assumption of Risk
Implied Assumption of Risk: Simply by doing something you have assumed the
risk and opened the possibility of being hurt. Not judging the ∆ or yourself as
being negligent.
Flopper Case
 Ride where you have to keep your balance. Π falls and fractures knee. Court
says π should have foresaw harm because he watched other people fall down
on the ride. A fractured knee is not abnormal to a fall. Π argued that the
fractured knee was not foreseeable if there was padding brace the fall.
o Court says there was no indication that ∆ did not exercise reasonable
care to minimize risk by padding the ride.
Express Assumption of Risk: Signing a waiver to assume risk and not sue for
negligence.
Ski Ltd.
 Public policy concerns with exculpatory waiver signed during ski visit. Man
runs into pole at ski resort and is injured. Court says resort is open to public
and therefore trigger public policy concerns for waiver to not be enforceable.
Business owes duty to customers to minimize risks and the pole causing
injury because of its placement should have been foreseeable.
o Policy: Limitless liability for negligence claims against recreational
activity involving risks that is open to the public.
Employment
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Lamson v. American Axe & Tool co.
Rule: An employee who understands the risk of employment but continues
working does not have an action for negligence against employer if a risked
injury occurs.
o Work station directly under drying rack of axes. New drying racks
were unstable and prone to cause axes to fall. Π complained about
fear of potential harm but he was told to continue using the racks or
leave. Injury occurred and π could not recover. Court says π was
aware and understood the risk and could have chosen to leave, but did
not.
 Primary Assumption of Risk: no duty of care is owed as to risks inherent in a
given sport/activity
 Secondary Assumption of Risk: ∆ owes duty but the π has knowingly
encountered a risk of injury caused by ∆’s breach.
 In jurisdictions that have eliminated implied assumption of risk because they
have accepted comparative fault. Π’s acceptance of a risk is factored into the
determination of the % of the π’s fault.
 Implied Assumption of Risk still operates as a separate defense in some
jurisdictions
o States that recognize contributory negligence
o Some states that use comparative fault
Comparative Negligence
1. Pure: apportions liability in direct proportion to fault of all cases.
Li v. Yellow Cab Co. of California
 Π attempted to cross three lanes to enter gas station while Cab speed
through yellow light and collided. Liability assessed for the direct
proportion of fault.
o Benefits: promotes fairness. Will reduce the amount of damages
based on π proportion of fault.
o Cons: Stare decisis
2. Modified: 50 percent system. Π may recover as long as contributory
negligence is not more than 50 percent. If over 50 percent π is barred from
recover.
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a. In modified jurisdiction if there is a 50/50 spilt some will allow
recovery while others will not.
b. Arguments against modified:
i. Undermines purpose of comparative negligence which is to
hold persons responsible for their actions to the extent that their
fault contributes to the injuries.
ii. Lowers the bar for contributory negligence, but does not
eliminate it.
 Arguments against adoption of comparative negligence
o If there are multiple parties a party who is partly liable may not be
brought before the court therefore it would be difficult for the court to
compute relative negligence with other present parties.
o Against stare decisis.
Governmental Immunity
The Federal Tort Claims Act
 The United States shall be held liable respecting the provisions of the title
relating to tort claims, in the same manner.
o Exception: Government action where it is the failure to exercise
discretionary function on the part of the government.
1. Must be Discretionary function: no statute dictating what has to be done.
2. Public policy Concern: Economic, Conservation of Nature, Public Safety
SRP v. United States
 Barracuda bites 12-year-old on shore line at Buck Island. Park issues warned
in brochure to snorkelers that fish may be hazardous but no notice to
shoreline swimmers. Government claimed that had no reason to know the
dangers of barracudas on the shore line because there had been no attacks.
Government Exception1. Discretionary: no statute which mandated that park must post signs about
marine
2. Public Policy Concern: Economic costs and over warning signage instead of
only warning of the most significant threats.
o Π could not recover due to both parts of test being met. In order to
refute public policy claim π would have to show park knew of attacks.
However, the one attack that occurred years before is not sufficient
because it did not happen on the shore line.
Young v. United States
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 Π falls in sinkhole created by transporter melting ice around it. No signage
in that are indicating hazard even though that was an area most people
visited.
Government Exception
1. Discretionary: No statute identified that dictated what ∆ was supposed to do
in this situation.
2. Public Policy Concern: No public policy concern because transporter was
not apart of the nature of the park. Not placing sign was of detriment to the
public not of the benefit.
Chadd v. United States
 Husband killed by unnatural Olympic goat. On several occasions before the
injury the goat displayed aggressive behavior to visitors. Park attempted
multiple efforts to prevent the aggressive behavior such as shooting rubber
bullets at the goat.
Government Exception
1. Discretionary: Statues provide guidance on how to deal with exotic animals
such as mountain goats who do not have the same guidance for natural
animals. However, there no policy or statute that required extermination of
the animal. First part of test is met.
2. Public Policy Concern: Preservation of goat argument prevailed over π
argument that park needs to prioritize human life. Goat’s status as an exotic
animal also contradicts the preservation of nature argument. Goat was not
apart of nature of park. However, second part of test is met according to
court.
Charitable Immunity
 Policy: If charitable organizations are at risk of being liable that may deter
those from volunteering in the first place.
Lewis v. Grady Memorial Hospital
 Woman was patient at hospital while another patient came into her room and
sexual assaulted. Claimed hospital to be negligent because they were
supposed to be supervising the hallways and failed. ∆ asserted charitable
immunity to not being able to be held liable because π was:
o Rule: Paying Patient: if all three points are met then paying patient
exception does not apply.
1. Agreement to pay
2. Able to Pay
3. Patient actually paid
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o Exception did not apply because ∆ did not meet
burden of proof showing that they extended charity
to π.
Intrafamily Immunities
 Parent-Child relationship should not be disturbed. Parenting is up to the
discretion of parent. Should be able to raise children without judicial
interference.
Majority Rule: courts recognize a limited form of supervision for personal injuries
resulting from negligent exercise of parent authority and ordinary parental
discretion.
Minority Rule: Allowing children to sue parent for negligent supervision under a
reasonable parent standard.
o If the conduct steps outside of a reasonable parent standard. How
would ordinary/reasonable parent act?
o Policy: Majority of courts reject reasonable parent
standard because it contradicts the idea that parents
should be free to discipline and raise their children
without judicial interference.
Zellmer v. Zellmer
Rule: Parents and those in loco parentis are immune from being sued for negligent
parental supervision.
 Step parent watching step daughter who drowns in the pool the pool not
granted immunity under parental immunity rule because step parent with
very little relationship with daughter.
Smelser v. Paul
 Boy was playing outside in driveway when girlfriend of father hit child with
truck then dragged him a distance causing severe injuries. ∆ claimed father
was partially responsible due to negligent supervision. Jury determined both
were negligent and ordered 50/50 on damages. Π requested joint and several
liability: π could choose who and how much to recover from.
o Father not held liable due to parental immunity and ∆ responsible for
100 percent of damages.
Damages
1. Compensatory: Money owed by ∆ to π as compensation for harm done at the
hands of ∆. (to make π whole again)
2. Nominal: a token ($1) for a tort without a loss
3. Punitive: Money owed by ∆ to π as punishment for egregious behavior
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Compensatory Damages
 A π entitled to fair adequate and reasonable damages ∆’s conduct and π’s
losses.
o Economic
o Noneconomic: Victimization, disfigurement, past and future pain and
suffering.
 Damages can be deemed excessive based on facts
o No formula can determine value of loss
o Court considers the outcome of comparable
o Cap on non-economic damages: cap unconstitutional in state of FL
due to it imposing unfair and illogical burdens on injured parties.
Rule: A ∆ may be held liable for damages in negligence where the victim’s type of
injury was foreseeable.
Smith v. Leech Brain & Co. Ltd.
 Iron molten where man gets burn on lip from not being protected from
molten splashing. Man eventually is diagnosed with cancer from the wound
which spread and killed him. Was foreseeable that the molten would
eventually splash someone doesn’t matter that it was not foreseeable that
man would get cancer. You take the plaintiff how you find them.
Rule: ∆ held liable for damages when the π’s injury was foreseeable-even if the
extent of the injury was not.
 Eggshell π rule: tortfeasor takes the victim as he or she finds them. Cannot
complain that the amount of damage caused was much greater than anyone
could reasonably foresee to have expected because of the hidden physical
vulnerability in the π.
Kenton v. Hyatt Hotels Corp.
 Skywalk at hotel collapsed on guests at hotel. Π suffered from severe
injuries physical and emotional distress. Reach settlement with stipulated
liability and would only go to trial to assess the damages. Evidence
illustrated a combined a loss of income and medical costs. ∆ claimed that the
award was excessive. Missouri Supreme Court held that the award was not
excessive because it reasonably related to the nature and extent of the
injuries including present and future economic losses and costs and awards
made in comparable cases.
o No set formula to determining compensatory damages. Depends on
the facts of the case.
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Punitive Damages: very rare, awarded in 5% of verdicts
 For punitive damages, willful and wanton conduct has to be proved.
Carelessness alone is not enough for punitive damages.
National By Products, Inc. v. Searcy House Moving Co.
 Driver crashed into trailer after being caught driving over the weight limit
and driving at an excessive speed instead of slowing down when it was
evident to stop. Punitive damages not awarded because it could not be
proven that ∆ acted wantonly or with conscious indifference. It was not
shown that he knew the brakes on the trucks were bad however they did not
take precautions to check them.
o Dissent: knew that accident was likely to occur due to his driving
conditions
Mathias v. Accor Economy Lodging, Inc.
 Motel 6 with bed bugs where hotel knew of bed bugs and was refusing to
treat rooms however was still leasing out to customers. Did not tell
customers of the high likelihood of being bit by bed bugs. Also, blatantly
lied to tell guest that it was ticks and not big bugs. Ample evidence to
support willful and wanton conduct for punitive damages.
 Policy: Deter future outrageous behavior in the future.
Joint Liability and Contribution
Indivisibility Injury Rule: If there is no evidence to identify the part of the injury
caused by each tortfeasor meaning it was a single injury, joint and several liability
may be imposed.
 If the injury is divisible the jury will be instructed to appropriation the
liability.
Ravo v. Rogatnick (1987)
 Π was rendered severely and permanently disabled owning to brain damage
at the time of her birth. Could not differentiate the fault from pediatrician by
not misdiagnosing and improperly treating her after birth and OBGYN not
detecting her size and using inappropriate surgical methods at delivery. Just
because they could apportion responsibility does not affect
joint and several liability because it was one single injury.
Bencivenga v. JJAMM., Inc. (1992)
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 Fight in club where ∆ did not want to reveal the identity of tortfeasor who
committed the actual action of punching the π. Court says cannot apportion
liability to ∆ who is not a party to the suit even if the injury is divisible.
o Policy: incentivizes π who knows identity of ∆ who is not a party to
the suit to bring them forward if they there liability would be reduced.
Carter v. The Wallance & Gale Asbestos
 Abestos and smoking case where testimony was given that the effects of
asbestos and smoking together gives a synergistic effect that makes the
injury indivisible. Majority ruled that when death is the final result the injury
is indivisible.
Strict Liability
 Does not matter whether or not the defendant acted reasonably or if they
were the cause of the injury, they are liable.
Animals
 Wild animals which a person possess strict liability applies regardless
o Filburn v. People’s Palace & Aquarium
 Injured by an elephant where the owners argued that they did
not know the elephant was dangerous. For wild animals it does
not matter strict liability applies.
o Gallick v. Baroto
 Ferret bites child. Considered wild animal not domesticated
therefore strict liability applies.
 If it is a wild animal you do not possess it needs to be known that the animal
is in close proximity for strict liability to apply.
o Leber v. Hyatt Hotels of Puerto Rico, Inc. (wild mongoose where
resort had no knowledge of the mongooses being on the property)
 For Domesticated Animals, there needs to be knowledge that the animal is
dangerous for strict liability to apply.
Abnormally Dangerous Activities
Rule: The activity is so dangerous the ∆ will be held liable whether or not there
was negligence. Despite reasonable precautions still inherently dangerous. Harm
has to be foreseeable.
Fletcher v. Rylands
 Unnatural resoiver brought on land that damages neighbor’s property. Court
rules that if ∆ bring unnatural resoriver he is responsible for maintaining it
and responsible for any damages that results from it.
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Turner v. Big Lake Oil
 Artificial storage of water is considered natural and ordinary use of the land
and not subjected to strict liability as in Fletchers. Context very different
than Fletcher in terms of geographical location and the need for water.
Siegler v. Kuhlman
 Hauling gasoline over public roadways as freight is an inherently dangerous
activity with a high risk of harm or injury to others which could not be
eliminated though exercise of due care warranting strict liability.
o Carrying gasoline as cargo is much more different than it being in car
due to the quantity, flammability multiplied by the speed of the truck
etc. Even when due care is taken that does not minimize the risk.
PSI Energy, Inc. v. Roberts
 Asbestos is not an inherently dangerous activity and anyone hiring an
independent contractor will not be hold strictly liable from exposure to it.
o Exercising due care can minimize the risk of working with asbestos.
Toms v. Calvary Assembly of God
 A lawful fireworks display is not abnormally dangerous activity that gives
rise to strict liability. Church took the necessary precautions to prevent harm.
Foster v. Preston Mill Co.
 Blasting of noise makes mink eat kittens. Not inherently dangerous. Risk of
eating kitten not a foreseeable.
Nuisance and Trespass
 Trespass: if you have voluntarily crossed into someone’s property whether
or not you meant to, is a tort.
o Criminal offense and property right
o If trespassing and nothing is damaged π can still recover as a deterrent
 Nuisance: interference with the enjoyment and use of real property. Injury is
the nuisance.
Crosstex North Texas Pipeline LP v. Gardiner
Rule: Hurtful and inconvenience be substantial and unreasonably annoying or
discomforting to a person of ordinary sensibilities would be constituted as a
nuisance.
o Intentional Nuisance: ∆ intentionally causes a nuisance if the ∆ acts
for the purpose of causing the interference
o Negligent Nuisance: simply doing or failing to do what a person of
ordinary prudence in the same or similar circumstances would have
not done or done. Failure to take precautions against a risk apparent to
a reasonable man.
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o Strict liability Nuisance: Unusual hazard of risk in with Rylands v.
Fletcher, abnormally dangerous activity that involves so great a risk to
its surrounding that its location may be considered unreasonable.
Intentional Torts
Battery
 Reasonable person standard used
 Battery is a criminal offense as well as a tort
Elements of Battery:
Elements of Battery (Prima facie case)
1.
Volitional act
2.
INTENTION: Intending to cause
3. Harmful or offensive contact
4.
CONSENT: Contact was nonconsensual.
5. CAUSATION: The act actually and
proximately causes the contact
Cecarelli v. Maher (1943) Battery at public dance
Rule: offensive but harmless contact counts as battery –doesn’t need to intend to
cause harm as long as harm occurs.
Paul v. Holbrook (1977)
o Π and ∆ were coworkers, ∆ made sexually charged statements to π and twice
he approached π from behind and attempted to massage her shoulders. Π
pulled away both times. ∆ does not have to intend to cause harm if the
conduct is harmful.
o Policy: interest underlying the tort of battery is the interest in controlling
other’ access to one’s body. It’s about protecting boundaries, personal
dignity.
Intent
Vosburg v. Putney (1891)
 ∆ and π are schoolchildren, ∆ kicks π in leg while in classroom, causing
serious injury
Rule: Intent to do harm is NOT required for liability for battery
30
 ∆ liable b/c he intended to contact π, even if he didn’t intend to harm. Thus,
his contact was unlawful – kick happened after class had been called to
order. There was no license (as in a playground) for ∆ to kick π
 A ∆’s liability is NOT limited to foreseeable harm (in this respect,
intentional torts are different than negligence)
Defenses to Battery: Consent and Self Defense
Consent
 Consent – idea that π cannot prevail on his claim b/c he has agreed, under
appropriate conditions to endure a bodily contact that would otherwise be
tortuous
 Consent can be communicated:
a. Express (through a written or spoken statement), OR
 Example: Authorization for medical procedure defeats
liability for the procedure itself
b. Implicit (through π’s conduct, surrounding circumstances)
 Example: Voluntary participation in contact sports
 Koffman v. Garnett (2016): adult football coach
tackled student and broke his bone. Π claimed assault
and battery. Could not prevail on assault claim but
could prevail on battery claim. For assault there was
no apprehension of the contact because he was not
aware that the coach was getting ready to tackle him.
Π argued that consent was for other students to tackle
not for an adult of a different size weight and force.
Could not expect to be tackled by adult coach because
adult coached had never tackled student to
demonstrate techniques related to the sport.
Reasonable persons could disagree on whether there
was consent or not therefore case should not have
been dismissed.
 Vendrell v. School District: could not prevail on
negligence claims against school because he assumed
the risk of being tackled. Battery case would be
against the students not the school district.
 NOTE: The consent defense applies even if ∆ mistakenly inferred consent
from π’s conduct (as long as on the basis of π’s conduct, ∆ actually and
reasonably believed that π had consented to contact)
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o RST 2d – A reasonable but mistaken inference of consent that derives
from a source other than the conduct of the π will NOT suffice to
establish a consent defense
o Example: Obrien v. Cunard S.S. Co. (young immigrant standing in
line for vaccination on board ∆’s ship headed to NY. After she
suffered an adverse reaction, said she never consented to the injection)
 NOTE: A tortfeasor cannot benefit from the consent defense if he secures
the victim’s consent by misrepresentation or other forms of deceit. Consent
secured through coercion by the tortfeasor also will not count as a defense to
a suit for battery
 NOTE: Consent is not a defense if 1) the victim lacks the ability or judgment
necessary to give meaningful consent and 2) a reasonable person in the
position of the tortfeasor would perceive this lack of capacity. Lack of
capacity may result from youth, mental incompetence, or some other
condition or circumstance
o Example: Fractured decision on whether π consented – Reavis v.
Slominski (dentist’s receptionist sued her employer for battery after
they had sex at an office party. Had had several encounters before.
Claimed she acquiesced to sex w/∆ out of fear of losing her job and
b/c sexual abuse she suffered as a child had habituated her into coping
w/sexual aggression by acquiescing. Debate as to whether ∆ knew of
π’s vulnerability and was thus exploiting it)
Self-Defense
 Self-defense is available to a victim who actually and reasonably believes it
is necessary to injure another to avoid imminent injuries to himself such as
harmful contact or confinement
 Person using defense was not the initial aggressor
 The reasonableness of injurer’s perception of threat to him is
judged in light of the surrounding circumstances (reasonable
perception of imminent harm)
 Injurer’s response to perceived threat must be proportional
(proportionality in the use of force) – injurer entitled to use
force reasonable under the circumstances
Haeussler v. De Loretto (1952)
 π shows up at ∆’s house looking for his dog. π gets angry at ∆ when dog
runs out of house. ∆ strikes π, when π advances towards him. loosens π’s
teeth
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Rule: The use of reasonable force in self-defense shields a ∆ from a claim of
assault and battery
 One who is involved in an altercation w/another has the right to use such
force as is necessary to protect himself from bodily injury, and the question
of the amount of force justifiable under the circumstances is one for the trier
of fact
Wright v. Musanti (2017)
 In NY, ∆ precipitated event with π where she tried to claim self defense,
however did not prevail. Video footage showed she was the initial aggressor.
Lead to arrest of π where he was humiliated in front of coworkers. Did not
meet self-defense test. She was the initial aggressor, by initiating altercation.
Defense and Recapture of Property
 A person is privileged as a matter of law to use non-deadly force in selfdefense. Deadly force is only justified when the injurer actually and
reasonably perceives that the victim is threatening him w/imminent death or
serious bodily injury (like when a person is being attacked in his dwelling)
 Deadly force cannot be sued to defend property unless the persons own
safety is in danger
 Katko v. Briney: spring gun used to shoot persons who
burglarized home in the leg.
Intentional Infliction of Emotional Distress
May bring a IIED claim if the four points are met:
1. The wrongdoer’s conduct was intentional and reckless
2. The conduct was outrageous and intolerable
a. So extreme in degree as to go beyond all possible bounds of decency
and to be regarded as atrocious and utterly intolerable in a civilized
community. Restatement 2d
3. There was a causal connection between the wrongdoers conduct and the
emotional distress
4. The emotional distress was severe
a. Injury so severe that no reasonable person should have to endure it
Eldib v. Bass Pro Outdoor World
 Case where resident who was a non-citizen was denied the right to buy a gun
based on the ignorant assumption of the gun vendors.
 IIED claim did not prevail because 2nd and 4th element of test not met
o Racial slurs do not constitute as outrageous and intolerable
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o Humiliation is not a severe injury
Smith v. United States
 Majority rules that the arrest was not extreme and outrageous because it was
backed by probable cause therefore it could not cause severe emotional
distress. Test for IIED claim not met according to majority.
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