Torts Outline

Torts Outline
Intentional torts
Prima facie intentional tort
To establish a prima facie case for intentional tort liability, generally the plaintiff must prove
that the defendant acted, with intent, and caused the harm. The “act” in intentional tort liability
refers to a volitional movement from the defendant. The intent will be met if the actor acts with
purpose to bring about the consequences or knows with substantial certainty that his actions
may bring about the consequences. The defendant does not have to intend the specific injury
as longs as he acted to bring about the consequences that are the basis of the tort. The causation
requirement will be met if the conduct of the defendant was a substantial factor in bringing
about the harm.
Harmful or offensive contact
Prima facie battery
To establish a prima facie case of battery, the following elements must be proven by the plaintiff:
1) An act by the defendant which brings about harmful or offensive contact towards the
plaintiffs person, 2) intent by the defendant to bring about the harmful or offensive contact,
and 3) causation.
The act is harmful if it brings about actual injury, pain, or disfigurement. The contact is
offensive, if it is not consented to by the plaintiff, and it will be considered offensive if the
reasonable person w/ ordinary sensibilities would consider it offensive. For purposes of
battery anything connected with the person will be considered part of the plaintiff’s person. For
causation it will be sufficient if the defendant sets in motion the force that causes the harm
Garratt v. Dailey – 4 year old pulls chair out from underneath P who was about to sit down. i.
Rule – Intent can be shown not only from the desire to bring about harm, but also if he knew w/
substantial certainty that it would occur as a result of his action. There need not be any
express interest to injure.
ii. Age is not a defense to battery – as long as D knew and understood P was about to sit down
Beauchamp v. Dow Chemical Co. – P worked at D’s research facility; alleges D intentionally
assaulted him by exposure to Agent Orange causing physical and mental injuries i. Rule – 2
theories of intentional tort 1. D truly intended the injury and the act 2. D intended the act that
caused the injury and knew that the injury was substantially certain to occur from the act
State v. Davis – slave tied to P by a rope to prevent escape; slave tied to rope considered part of
P’s person – was a battery
Intentional Infliction of Emotional Distress (IIED)
Prima Facie Case [Restatements (Seconds) § 46(1)]
The establish a prima facie case of intentional infliction of emotional distress, the following
elements must be shown: 1) an act by the defendant to amounting to extreme or outrageous
conduct, 2) intent by the defendant to cause severe emotional distress or recklessness as to the
effect of the defendants conduct, and the defendant must be the proximate cause of the plaintiffs
severe emotional distress
Outrageous conduct- conduct that transcends all bounds of decency. Objective standard to
protect against frivolous claims.
Special relationship- common carriers and innkeepers owe special duties to their patrons. This
will make the liable for conduct less than outrageous
Known Sensitivity If defendant knows that plaintiff is more sensitive and thus more
susceptible to emotional distress than the average person, liability will follow if the defendant
uses extreme and outrageous conduct intentionally to cause such distress and succeeds.
Eckenrode v. Life of America Insurance Co. – P’s husband died and D, the insurance company,
failed to give her the husband’s life insurance policy that was supposed to be paid immediately.
D failed to pay after demands from P. P says she suffered severe emotional distress and
disturbance of mental tranquility unable to provide for children.
Rule – Extreme character of a person’s conduct may arise from that person’s knowledge that
one is peculiarly susceptible to emotional distress by reason of some physical or mental
condition or peculiarity. Economic coercion is considered IIED
Defenses to intentional torts
--Consent- consent may be given expressly, or it may be implied by custom, conduct, words or
by law.
a. Determining if consent has been given (2 objective criteria)
i. Presence of consent is inferred from conventional meaning of P’s conduct
1. How does P’s conduct appear to other reasonable persons?
ii. Content of consent is determined from what a reasonable person would understand herself
to have consented to in the context at hand
1. Convention – what do people normally know or think when they deliberately enter into
some activity?
2. Prescription – What kind of conduct is legitimate given the character of the activity?
(ie. Game of football)
iii. Consent is only effective if:
1. there is actual knowledge
2. there is an environment of freedom of choice
*in emergency situations there is no freedom of choice if rescuing someone
How is consent communicated
i. Express
1. ex. contract
ii. Implied
1. ex. Get on subway car at rush hour, you assume you will be jostled which may be
offensive and harmful yet we consent to it even if we don’t say so
iii. Presumed
1. ex. Imposition of consent in medical emergency and you expect paramedics on scene
to save a life and nobody can give consent
iv. Imposed – very similar to presumed
c. How is consent vitiated
i. Scope exceeded – not general enough to encompass every scenario
ii. Withdrawn
iii. Prohibited by public policy 1. incapacity, coercion, mistake/fraud
O’Brien v. Cunard Steamship Co. – P was an immigrant at port waiting for smallpox
vaccination. P was in line with others receiving the shot and saw others getting shot. When it was
her turn, D found no mark from vaccination, said she needed one, and she held up her arm and
accepted certificate after. P sues for battery.
i. Rule – A reasonable person must be able to understand a lack of consent of P
ii. Lack of consent must be reasonably present to others
iii. Consider how power relationships affect consent
iv. Does policy interest trump the dignitary interest?
Hackbart v. Cincinnati Bengals, Inc. – P was injured by D’s player in an egregious conduct that
was outside the scope of normal rules and regulation of the game. i. Rule – Injury caused out of
retaliation in the course of a game that is not permitted in the rules is not assumed to be part of
the game and its risks. Contact is outside the scope of consent
Kathleen K. v. Robert B. – D had herpes and failed to disclose this information to P when she
asked if he had no diseases. P said she would not have consented to sex if she knew he had
i. Rule – Intentional misrepresentation/fraud will vitiate consent if it would not have been
given w/o the fraud. Consent is not valid when D misrepresented self to the extent that consent
wouldn’t have been given w/o information
Kennedy v. Parrott – P had surgery by D for an appendectomy. During surgery, D found ovarian
cysts that D believed posed a dangerous risk to P so he removed them w/o consent. P w/ no
injury or damage, sues D for negligence and battery.
i. Rule – If during surgery, a condition is found that is potentially dangerous, a physician
may use general consent to surgery to overextend the surgery w/o specifically consenting to
that part of the surgery.
Self Defense
a. Privilege – erases tort based on D’s conduct
i. Where it is used reasonably and proportionately so it justifies behavior for the allegation
ii. Not retaliatory, must forestall an impending battery
iii. Affirmative defense that wipes out possibility of liability
iv. Either an excuse or justification
1. Excuse – subjectively acceptable for particular D to do this and not be liable in his
specific circumstances
2. Justification – objectively acceptable for persons to do such things a. no moral
problem, no legal problem
Objective Standard
i. Resort to the use of a dangerous weapon to repel an attack is not justified except in exceptional
cases where the actor’s fear of danger is not only genuine but is founded upon the facts that
would likely produce similar emotions in men of reasonable prudence
1. reasonable man in like circumstances
Subjective Standard
i. Jury needs to take into account the physical and psychological properties of the accused in
addition to the surrounding circumstances when the force was executed.
Prima facie
To establish a prima facie case of negligence the following elements must be proved: 1) there
was a duty of care from the defendant extending to the plaintiff to conform to a specific
standard of conduct for the protection of the plaintiff against an unreasonable risk of harm.
2)A breach of that duty, that the breach of that duty was, 3) the actual and proximate cause, of
the 4) harm to the plaintiffs person or property
Nitro-Glycerin Case – Sender of package failed to label it w/ handle w/ care sticker etc. and Ds,
seeing it was leaking, as procedure warranted them, to open it and inspect it. They did so and it
exploded, destroying P’s building around office and killed a couple of them.
i. Rule – A party unaware of danger that a reasonable man would not have known is not
ii. Reasonable care w/ knowledge is different than reasonable care w/o knowledge
When a person engages in an activity he is required to act as a reasonably prudent person would
under the circumstances to not put others in an unreasonable risk of harm. No duty is placed on
people to take precautions against unreasonable risks of harm.
Negligence analysis
a. Did defendant have a duty?
i. Duty is a matter of law that is appropriate for courts to decide
ii. Execution of that duty (what is reasonable) is a matter of fact for a jury/community to
*when reasonable minds cant disagree it will be a matter or law
b. What risk were or should be been reasonably foreseeable to defendant? (L)
*what were the losses that were foreseeable
i. Focus on facts from the defendant’s perspective and see what risks were foreseeable to
the defendant
ii. What reasonable precautions should have been taken are based on what risk are
reasonably perceptible
iii. What loss/harm is out there?
c. How likely is the risk? (P)
i. Helps us understand if risks are reasonably foreseeable
d. What, if anything, should defendant have done to reduce the risk to an acceptable level? (B)
i. Measure of precaution; there is an obligation on plaintiffs to come up with theories of
the burden/precautions
ii. Impossible unless you understand the facts from the defendant’s perspective
The general rule
Duty is owed only to the foreseeable victim
Andrews view exception- the directness test
The defendant owes a duty to unforeseeable victims, if the harm was caused as direct and natural
consequence of the negligent act. In short, defendant owes a duty of care to anyone who
suffers injuries as a proximate result of his breach of duty to someone.
The measure of care that a person should take to avoid responsibility is that which and
ordinary person of reasonable prudence would take to protect his interests, if the
whole risk was his own
Unreasonable Risk
A risk is unreasonable if it is sufficiently great to lead a reasonable person to anticipate and
guard against them
Hand Formula (a.k.a. BPL Formula) i. Helpful tool, not a rule Æ Troutt isn’t necessarily a huge
fan of this ii. PL = risk (probability of loss)
1. P = degree of likelihood harm will happen
2. L = gravity of harm threatened
3 B = burden (costly precaution which might be taken in order to avoid or reduce risk)
iv. B < PL v. Ex. safety catch costs 20 bucks to put on a machine. 1 in 100 machines will
cause an injury w/o the catch. Injury will cost 1000 bucks. Cost 2000 bucks to put catch on. Not
compelled to put guard on
Social utility of D’s conduct is also taken into consideration and the good it conveys to the
public – railroads are needed for economic and social utility and progress
Specific situations
i- Rescuer – a rescuer is always a foreseeable plaintiff as long as the rescuer is not reckless in
caring for his own safety
§ 292 Factors considered in determining utility of actor’s conduct
i. Social value which the law attaches to the interest which is to be advanced or protected by the
ii. Extent of the chance that this interest will be advanced or protected by the particular course
of conduct;
iii. Extent of the chance that such interest can be adequately advanced or protected by another
and less dangerous course of conduct
*why is this conduct worth protecting, and is there another way to protect the same societal
interest without this conduct or with a less dangerous one.
This is the Subjective standard
Physical characteristics- same as that of the defendant. A person with a physical handicap is
expected to know about the handicap and act as a reasonable person with the knowledge of that
*a person who suffers from epileptic seizures will be liable for a driving accident while
he has an attack
Objective standard
Average mental ability- reasonably prudent person under the circumstances. Unlike the
physical characteristic, individual mental incapacities are not considered.
Knowledge- the defendant will be held to know the same as the average person of his
community know. Individual shortcoming will not be considered. BUT if the defendant has
superior knowledge (expertise) he will be expected to use that knowledge.
Special Standards
Professionals A person who is a professional or has special skills (e.g., doctor, lawyer, airplane
mechanic, etc.) is required to possess and exercise the knowledge and skill of a member of
the profession or occupation in good standing in similar communities.
Subjective standard– person who is reasonable but also has some of the particular capacities
and traits of the particular individual whose conduct is being judged
Restatement (Second) §238B
i. Unless actor is child, insanity or other mental deficiency does not relieve the actor from
liability for conduct which does not conform to the standard of a reasonable man under like
Vaughan v. Menlove – D had some hay next to P’s property which caught fire even after D was
warned of danger and took his chances. D argued he acted to the best of his judgment in a bona
fide manner
Rule – Court should adhere to standard of what a man of ordinary prudence would
reasonably foresee and know
ii. Policy – Pandora’s Box would be opened if we held each individual to its own specialized
standard of care
Always look for the policy consideration- slippery slope
Restatement (Third) §7 Duty
i. Even if D’s conduct can be found negligent * * * and is the legal cause of P’s harm, D is not
liable for that harm if the court determines D owes no duty to P, either in general or relative
to the particular negligence claim. Determinations of duty are unusual and are based on judicial
recognition of special problems of principle or policy that justify withholding liability
1. duty is usually implied
2. matter of foreseeability and reasonableness
3. person are harmed outside the scope of one’s duty – not liable
Scope of Duty -i. No duty will be found, in general, where reasonable persons would not
recognize it and agree that it exists
Miller v. Wal-Mart –
Duty – established when it can be said that it was foreseeable that his act or omission to act
may cause harm to someone
Randi v. Muroc – “A court’s task….in determining duty – is not to decide whether a particular
P’s injury was reasonably foreseeable in light of a particular D’s conduct, but rather to evaluate
more generally whether the category of negligent conduct at issue is sufficiently likely to
result in the kind of harm experienced that liability may appropriately be imposed on the
negligent party”
i. Difference between proximate cause and duty
Duty “Foreseeability” Test
i. likelihood of the injury;
ii. magnitude of the burden of guarding against the injury;
iii. consequences of placing that burden on the negligent actor; and
iv. policy consideration
Stages of foreseeability
1 duty- can the defendant foresee the category of harm
2 reasonable care- can the defendant foresee the specific harm
*could he foresee what happened in this scenario to the plaintiff
3- proximate causation- but for this harm would the defendant have suffered this specific harm
Common carriers and Innkeepers-Rule – D is a common carrier and the owner of the
premises; An owner of a premises has a duty to take reasonable steps in maintaining the safety
of the property. Reasonable precautions should be taken to protect patrons from foreseeable
dangers from use of property and actions of 3rd parties.
Negligent conduct of third parties
Generally, there is no duty to protect a person from harm by a third party. The situation may
arise when the person has the actual ability, and authority to control that third party. The
defendant must also have knowledge of the defendants aggressive propensity.
Standard of care in Emergency Situations
The defendant must act like the reasonable person under the same emergency circumstances
would have acted. This may not be considered if the emergency situation was brought about by
the defendant.
Restatement (Third) § 11 Disability
i. If an actor has a physical disability, the actor’s conduct is negligent if it does not if it does not
conform to that of a reasonably careful person w/ the same disability (not subjective)
1. ex. blind person must act as a reasonable careful person who is blind ii.
If an actor engages in substandard conduct b/c of sudden incapacitation or loss of consciousness
brought about by physical illness, this conduct constitutes negligence only if the sudden
incapacitation or loss of consciousness was reasonably foreseeable to the actor
Restatement (Third) § 12 Knowledge and Skills
i. If an actor has knowledge that exceed those possess by most others, these skills or knowledge
are circumstances to be taken into account in determining whether the actor has behaved as a
reasonable careful person
i. Children held to degree of care usually exercised by an ordinarily prudent minor of the same
age intelligence and experience of the child
ii. Children can be held to adult reasonable care standard if they are operating an adult
instrumentality/participating in overtly adult activity
1. ex. driving a car, operating a speedboat
2 step test
1- subjective- kids of same age, knowledge, and experience
2- objective- acting like a kid of similar age and like capacity
Situations where specialized, formalized knowledge is required
Customary norms are looked at skeptically while professional norms are treated deferentially.
Customary standards have weight, but are never conclusive, while professional standards are
usually conclusive.
Customary standards
The defendant will be measured like the reasonably prudent person in that line of work
No one can be held to higher degree of care than that person of reasonable prudence within that
particular line of work. This will be given weight but it is not conclusive. The custom of that
industry may still be deemed negligent.
Meeting the customary standard is not conclusive affirmative defense against negligence. “A
whole calling may have unduly lagged in the adoption of new and available devices. It never
may set its own tests, however persuasive be its usages. Courts must in the end say what is
required”(TJ Hooper)
There are precautions so imperative that even their universal disregard will not excuse their
-When there is a high degree of acceptance, it doesn’t violate the law, public policy, or
common sense, a customary standard may be persuasive.
-Reasoning: law wishes to allow industry to grow and develop without legal interference and not
to deter trade and profession due to expertise and efficiency.
-Customary standard often not a defense due to the customs purpose being increased profitability
or low standards to protect themselves from lawsuits as opposed to protection of the public.
Professional standard.
Degree of care of the ordinary reasonable prudent person in that profession under good standing.
-When the physician makes a good faith choice between two acceptable alternatives there is no
-Plaintiff must use expert witness to establish professional standard and to show that he D fell
outside of it
-Take into account special knowledge
1. does not make standard subjective or professional 2. just fleshes out the standard
Nature of the group must include a special relationship w/ its clients that assure society that
those standards will be set w/ primary regard to protection of the public
Locality rules
i. Strict locality rule – compare conduct to others in same locality to find standard of ordinary
ii. Modified locality rule – compare conduct to others in similar localities to find standard of
ordinary care
iii. New standard – reasonable care compared to practitioners in same class to which he
1. not geographically rooted
2. must act in same or similar circumstances
Corporate Negligence – expands duties
i. Arises from policies, actions or inaction of institution itself instead of actions of specific
INFORMED CONSENT If an undisclosed risk was serious enough that a reasonable
person in the patient’s position would have withheld consent to the treatment, the doctor has
breached this duty
Purpose – unlimited discretion in the physician is irreconcilable w/ the basic right of the patient
to make the ultimate informed decision a. Right to determine what shall be done to his body
For a case of Informed Consent
 Nondisclosure of required information
 Harm resulting from undisclosed risk
 Causation
-this patient would not have consented to the procedure if he was aware of
undisclosed risk(subjective)
-The reasonable person would not have consented(objective)
*Was the patient aware and did he authorize the performance of this duty
Two ways to determine standard
i. Medical standard – using experts, similar circumstances, and national community
(specialists) to determine amount of disclosure necessary
ii. Materiality/patient standard – giving patients all the information a doctor can reasonably
expect a patient to want to make a decision (experts not required 1. Locus of control belongs
to the patient and now it is what goes on in patient’s mind, doctor serves as a conduit to this
iii. Difference - experts can tell us that what the standards are and if they are met under medical
standard, materiality just relies on juries, maybe without experts, if enough disclosure was made
What should patient be told
i. The diagnosis
ii. The general nature of the contemplated procedure
iii. The material risks involved
1. Materiality - relevant information that a reasonable patient would need and want in
order to make a decision
iv. The prospects of success
v. The prognosis if the procedure is not performed
vi. Alternative methods of treatment, if any
Exceptions i. Where the patient is unconscious or otherwise incapable of giving consent and
harm from failure to treat is imminent; or ii. When risk disclosure poses such serious
psychological threat of detriment to the patient as to be medical contradicted
Statutory negligence – if an actor violates a pertinent safety statute, and the violation results in
injury, the fact of the violation by itself – per se – conclusively establishes the actor’s negligence
The plaintiff may use the doctrine of negligence per se to establish that the defendant’s violation
of a pertinent statute established a duty and a breach of that duty. The plaintiff must show that
he was within the class of people that the statute aims to protect, and that the harm suffered was
the type of harm the statute aims to prevent.
Sword – P claims D’s conduct was negligent in regards of failing to comply w/ the statutory
Shield – D claims conduct was in compliance w/ the statutory standard and in compliance w/
relevant safety statute
1. Negligence per se works better as a sword than a shield
Elements of Negligence Per Se claim
i. P must prove he was a member of the class sought to be protected by the statute
ii. Injuries were of a type sought to be avoided (Purpose)
 Is it designed to protect this particular interest?
 Is it designed to protect this type of harm?
 injury must be related to the type of harm the statute is in place to protect against
 restrictive narrow interpretation is unfashionable
iii. Does it provide a relevant standard of care?
Excuses for violation
The defendant may be excused in violating the claim if:
1-compliance with statute would be more dangerous than violating the statute
2- Compliance with the statute was impossible
Effect of Establishing Violation of Statute
Most courts still adhere to the rule that violation of a statute is “negligence per se.” This means
that plaintiff will have established a conclusive presumption of duty and breach of duty.
(Plaintiff still must establish causation and damages to complete the prima facie case for
A significant minority of courts, however, are unwilling to go this far. They hold either that (i) a
rebuttable presumption as to duty and breach thereof arises, or (ii) the statutory violation is
only prima facie evidence of negligence.
Rebuttable Presumption - shifts burden of production onto the other side if sufficient
evidence is submitted to get the presumption
1. if presumption is rebutted, goes back to evidence of/weight; or
2. if presumption isn’t rebutted, it becomes conclusive
res ipsa loquitor
“the thing that speaks for itself”
when the specific fact pattern I not know but the accident that happened usually would not
happen without negligence.
Why resort to Res Ipsa Loquitur?
i. Do not know exact negligence at issue
ii. May be reasonable to infer from evidence
iii. Circumstantial evidence – evidence of facts from which a jury could infer that the defendant
was negligent
1. evidence must sustain the burden of proof by making it appear more likely than not
i. The accident is of a type that ordinarily doesn’t happen in the absence of negligence
ii. D was in exclusive control of the instrumentality that caused the accident
1. modern law – downplays “exclusive”
2. can include multiple defendants or where the precise instrumentality of injury is
unknown iii.
iii. P was not responsible for causing the accident
i. Some courts say that burden of proof is shifted to D
ii. Some say it simply permits jury to draw inference of negligence w/o P introducing direct
evidence of negligence, but jury is not required to find negligence
iii. Some courts say P has a rebuttable presumption of negligence and it is up to D to produce
rebutting evidence
1. If D does so, burden of proof still rests on P
Multiple Defendants Problem
3 parties- When there are 2 defendants one must be completely absolved before res ipsa can
apply to the remaining party.
Exceptions – Policy concerns and highest care duties where there is a special responsibility 1.
Duties require D to explain or pay
ex. Common carrier, doctors, surgeons, hospitals etc.
A substantial minority of courts in such cases where defendants have control of the evidence
require each defendant to establish that his negligence did not cause the injury. [See, e.g.,
Ybarra v. Spangard, 25 Cal. 2d 486 (1944)])
Plaintiff is not required to eliminate all other sources of that could have been the cause, must
simply show that defendants negligence was the most likely cause. Up to the defendant to rebut
the presumption.
other responsible causes, including the conduct of P and 3rd persons, are sufficiently eliminated
by the evidence 1. ex. exploding bottles and shipping being handled w/ care – manufacturer’s
The general rule- there is no legal duty placed on anyone to act affirmatively for the benefit of
others. The general rule is subject to some exceptions:
Special Relationships
i. Assumption of a contractual duty or had created in the victim a reasonable expectation that he
had assumed a duty
ii. Victim is in rescuer’s custody and w/o access to alternative rescuers
iii. Where the peril is created by a rescuer
Restatement’s Exceptions §314A and §314B
i. Common carrier to passenger
ii. Innkeeper to guest
iii. Land possessor to privileged public
iv. Voluntary control of another
v. Employer to employee within scope of employment
Undertakes or aggravates the condition
Assumption of Duty by
If the defendant aids the plaintiff, without any original requirement to do so, the defendant now
has a duty to continue the rescue and act like a reasonably prudent person.
Duty to avoid any affirmative acts which make P’s situation worse
b. To fall under voluntary rescue doctrine, a rescuer must know a danger is present and take
steps to aid an individual in need
c. Elements of voluntary rescue doctrine where D makes P’s situation worse:
i. Increasing the danger;
ii. Misleading P into believing the danger has been removed; or
iii. Depriving P of the possibility of help from other sources
2)Custody (Third Persons)
a. Rule - duty arises to protect the person in custody and a duty to protect 3rd parties from the
person in custody
i. scope of the duty key as well
ii. scope is commensurate w/ the scope of the risk created by its breach
iii. must keep the duty manageable
iv. 3rd persons must be a foreseeable victim
While generally there is not duty to protect a victim from harm by a third person, there can be an
affirmative duty when the defendant had actual ability and authority to control the 3rd person.
It is also generally required that the defendant know or should have known that the third person
is likely to commit the acts that require control.
3)Peril Due to Defendant’s Conduct One whose conduct (whether negligent or innocent)
places another in a position of peril is under a duty to use reasonable care to aid or assist that
*if you created the danger then you must act.
Special Relations
Duty of Common Carriers Common carriers are under a duty to use reasonable care to aid or
assist passengers.
Duty of Places of Public Accommodation Innkeepers, restaurateurs, shopkeepers, and others
who gather the public for profit have a duty to use reasonable care to aid or assist their patrons
and to prevent injury to them from third persons.
Employer/Employee (employer cannot escape liability by giving notice)
School/Student (does not apply to colleges)
The Variable Duty of Landowners (premise liability)
Trespasser – One who remains on the land without the consent of the landowner
Undiscovered trespasser is owed no duty except that the owner should refrain from reckless or
intentional harm caused to the trespasser.
Discovered trespasser- Landowner owes duty to 1) warn/make safe 2) artificial conditions
3)which could cause death or grievous bodily harm 4) and are unlikely to be
discovered by the trespasser.
Trespasser children
Landowner owes a duty to trespasser children from artificial conditions.
Attractive Nuisance Doctrine
The plaintiff must show the following
1) Owner is or should be aware that there is a dangerous condition on his property
2) owner knows or should know that young persons frequent this dangerous condition
3) condition is likely to cause harm
4) the burden of protecting against the harm is slight compared to the magnitude risk
Definition of Licensee A licensee is one who enters on the land with the landowner’s
permission, express or implied, for her own purpose or business rather than for the
landowner’s benefit.
Licensee: guest on your property for their own benefit with no benefit to the landowner (social
guest, rescuer, meter readers, post men)
Landowner has no duty of care as with trespassers. Duty to warn the licensee of concealed
dangers known to the landowner that are unlikely to be discovered by the Licensee
Duty Owed to an Invitee
(1) Definition of Invitee An invitee is a person who enters onto the premises in response to an
express or implied invitation of the landowner. Basically, there are two classes of invitees:
(a) Those who enter as members of the public for a purpose for which the land is held open to
the public, e.g., museums, churches, airports; and
(b) Those who enter for a purpose connected with the business or other interests of the
landowner or occupier, e.g., store customers and persons accompanying them, employees,
persons making deliveries, etc.
There is a duty to exercise reasonable care and protect the invitees against known dangers
included those revealed by inspection and those that should be reasonably foreseen by the
owner. Duty to give notice of non-obvious dangers known to the landowner. Reasonable care
by the owner may require exercising control over third parties on their premise.
Scope of invitation: If the visitor’s use of the premise goes beyond the scope of their invitation,
that person is no longer an invitee but a licensee.
Open and Dangerous Condition Rule: relieves landowner of liability to a person’s injury when
the injury sustain was from an open and obvious danger on the premises.
 No duty owed by landowner when danger is open and obvious
 No longer is a complete bar due to comparative negligence, each party responsible for
the portion of the injury attributable to them.
 People shouldn’t assume that others will act reasonable and should take precautions to
protect against unreasonable risk of harm.
Contributory negligence
plaintiff’s unreasonable conduct contributed to the harm and therefore barred recovery unless the
defendant knew of the plaintiff’s peril or should have reasonably known and therefore owed the
plaintiff a duty of care.
Elements of contributory negligence:
The plaintiff was negligent
The plaintiffs negligence was the actual cause of his injury
The plaintiff did not merely enhance severity of his injuries
Defense is unavailable if:
The plaintiff still would have been harmed in the situation, even if they acted in a reasonable
The defendant is being accused of an intentional tort, breach of safety codes, or strict
Last Clear Chance Doctrine:
If, just before the harm was caused, the defendant had an opportunity to prevent it, and
plaintiff did not have the opportunity to do so, the last clear chance wipes of the contributory
negligence defense. Plaintiff has the burden to show the following:
1. Plaintiff was in a position of danger caused by the plaintiff’s
2. Plaintiff was oblivious to the danger, or unable to extricate
himself from the position of danger.
3. Defendant was aware, or by the exercise of reasonable care,
should have been aware, of the plaintiff’s danger. Defendant
could have avoided the injury to the plaintiff
Doctrine of Avoidable Losses: plaintiff has an obligation to mitigate his own damages, which
only becomes relevant after the injury has occurred.
Remaining in harm- If plaintiff, after being put in harm’s way, remains there then that could be
contributory negligence.
The plaintiff may be denied recovery if he assumed the risk of any damage caused by the
defendant’s acts. This assumption may be expressed or implied. To have assumed risk, either
expressly or impliedly, the plaintiff must have known of the risk and voluntarily assumed it. It
is irrelevant that plaintiff’s choice is unreasonable.
Knowledge of Risk
Plaintiff must have known of the risk. Knowledge may be implied where the risk is one that the
average person would clearly appreciate, e.g., risk of being hit by a foul ball in a baseball game.
Voluntary Assumption
The plaintiff must voluntarily go ahead in the face of the risk. However, plaintiff may not be
said to have assumed the risk where there is no available alternative to proceeding in the face
of the risk, e.g., the only exit from a building is unsafe.
Certain Risks May Not Be Assumed -Because of public policy considerations, the courts
uniformly hold that some risks may not be assumed. These include:
a) Common carriers and public utilities are not permitted to limit their liability for personal
injury by a disclaimer on, e.g., a ticket, a posted sign, etc.
b) When a statute is enacted to protect a class, members of that class will not be deemed to have
assumed any risk. Example: When a statute imposes safety regulations on an employer, the
employee is held not to have assumed the risk where the statute is violated.
c) Risks will not be assumed in situations involving fraud, force, or an emergency. Thus, for
example, one could take action to save his person or property without assuming a risk unless his
actions involve an unreasonable risk out of proportion to the value of those rights.
No Defense to Intentional Torts Assumption of risk is not a defense to intentional torts. It is,
however, a defense to wanton or reckless conduct.
Involuntary exposure if:
 Defendant’s tortuous conduct leaves plaintiff no alternative to exercise of protect a right
to which D has no authority to deny.
 Plaintiff acted to avert harm to himself or another caused by D
 Plaintiff acted out of duress caused by defendant
Types of Assumption of Risk Defenses
Express: plaintiff signed a waver assuming risk (recovery barred)
 Does not apply if releasing defendant of liability was against public policy or if the
plaintiff was at an obvious disadvantage to bargain.
 Exculpatory clauses will only stand if they do not hurt public interest
Primary implied: implied by conduct of the parties. Where risks are inherent to the activity
being undertaken
There is no duty to protect plaintiff from the risks that are inherent in the activity- getting tackled
in a game of football.
The risks are inherent to the activity if they would materially alter the nature of the activity.
Secondary Implied: implicit agreement where plaintiff assumed the risk
If plaintiff’s assumption of the risk was:
 Reasonable, then plaintiff may recover full damages
 Unreasonable, can only recover partial damages
Firefighters rule: rescuers (civil servants, firefighters, police officers) who expose themselves to
harm as a part of their occupation for benefit of the public cannot bring suit for the negligent
conduct that required their presence in the first place.
Exceptions: rescuer can recover if their harm is caused by a separate act unrelated to
the reason he was called to the scene.
1.Person being rescued acts in a willful or affirmative manner which causes injury
2.Injury is caused by a third party unrelated to the reason why the rescuer is in the situation he is
in (driver negligently hits a police officer while he is on the side of the road after pulling over
another person).
Comparative Negligence
The vast majority of states now permit a contributorily negligent plaintiff to recover a percentage
of his damages under some type of comparative negligence system. In every case where
contributory negligence is shown, the trier of fact weighs plaintiff’s negligence against that of
defendant and reduces plaintiff’s damages accordingly
“Partial” Comparative Negligence Most comparative negligence jurisdictions will still bar the
plaintiff’s recovery if his negligence passes a threshold level. In some of these states, a plaintiff
will be barred if his negligence was more serious than that of the defendant (i.e., the plaintiff will
recover nothing if he was more than 50% at fault). In the other states, a plaintiff will be barred
from recovering if his negligence was at least as serious as that of the defendant (i.e., the plaintiff
will recover nothing if he was 50% or more at fault).
“Pure” Comparative Negligence The “pure” variety of comparative negligence, adopted in a
third of the comparative negligence states, allows recovery no matter how great plaintiff’s
negligence is (e.g., if plaintiff is 90% at fault and defendant 10%, plaintiff may still recover 10%
of his damages).
How to Compare Fault
i. Uniform Comparative Fault Act § 2(b) – In determining the percentages of fault, the trier of
fact shall consider both the nature of the conduct of each party at fault and the extent of the
causal relation between the conduct and damages claimed
1. (1) whether the conduct was mere inadvertence or engaged in w/ an awareness of the danger
2. (2) magnitude of the risk created by the conduct, including the number of persons endangered
and the potential seriousness of the injury
3. (3) significance of what the actor was seeking to attain by his conduct (utility)
4. (4) actor’s superior or inferior capacities, and
5. (5) particular circumstances, such as the existence of an emergency requiring a hasty decision
Seat-Belt Defense: Defendant has the ability to reduce the damages sought by a plaintiff through
the consideration of their own fault due to their lack of wearing a seat belt.
i. Not a defense in all jurisdictions, but more likely to be used in
jurisdictions using the comparative fault system as opposed to
contributory negligence.
Jury will analyze defendants fault in causing the accident, plaintiff’s fault in causing the
accident, and then whether damages were exacerbated or even only caused due to plaintiff’s
negligence in failing to use the seatbelt.
There must be actual and proximate causation to prove liability
Actual Cause (Causation in Fact) Before the defendant’s conduct can be considered a proximate
cause of plaintiff’s injury, it must first be a cause in fact of the injury.
“But For” Test An act or omission to act is the cause in fact of an injury when the injury would
not have occurred but for the act.
Concurrent Causes The “but for” test applies where several acts combine to cause the
injury, but none of the acts standing alone would have been sufficient (e.g., two negligently
driven cars collide, injuring a passenger). But for any of the acts, the injury would not have
There are times where the “but for” would not apply and bring about unjust results
so there are alternative tests
Joint Causes—Substantial Factor Test Where several causes commingle and bring about an
injury—and any one alone would have been sufficient to cause the injury—it is sufficient if
defendant’s conduct was a “substantial factor” in causing the injury
Determining substantial factor
 Plaintiff was exposed to harm in excess of the normal exposure to the alleged harm
 Injury to the plaintiff sustained is of the type consistent with harm alleged
 Plaintiff was exposed to or resided in the proximity of the alleged harm
Loss of Chance Doctrine: negligent conduct of a defendant deprived the plaintiff of a chance
to avoid injury (defendant didn’t cause the disease, but made it worse, chances of recovering
from the disease has been diminished by defendant)
Probabilistic Harm: where plaintiff may have developed a disease due to exposure to a harmful
substance by the defendant, but that disease occurs naturally in society among other members
of the population not exposed to the harmful substance by defendant.
i. Determining Probabilistic Harm:
1. Probability that plaintiff was exposed to harm
2. Plaintiff’s injury is consistent with exposure to the harm
3. Time and extent of the exposure
4. Unusual sensitivity to harm (age, immune system)
5. Dose estimations (how much exposure)
6. Latency period between exposure and effects of the harm
Alternative causes approach
Where the plaintiff was harmed by one of multiple defendants, and any of them could have been
the cause but there is uncertainty as to which one. The plaintiff must show that he was harmed by
one of them, and then burden shifts to the defendants to show that they were not the cause
Alex and Basil both negligently fire shotguns in Clara’s direction. Clara is hit by one
pellet, but she cannot tell which gun fired the shot. Under the alternative causes approach, Alex
and Basil will have to prove that the pellet was not theirs. If unable to do this, they may both be
liable. [Summers v. Tice, 33 Cal. 2d 80 (1948)]
Multiple Party Causation: when multiple defendants have caused the injury and a but-for
analysis would exculpate both defendants of liability.
Joint and Several Liability: all negligent parties are held liable for the full amount of damages
pro rata, ensuring plaintiff is made whole for his injuries. The defendant has the burden to prove
he was not a proximate cause of harm
If there are more than one negligent parties proven to be the proximate cause of harm,
and that harm is indivisible, each defendant is liable for the entire harm (common liability)
 If indivisibility of an injury is uncertain, lack of clarity is treated as indivisible as to not
exculpate any negligent defendant.
 Once plaintiff proves proximate cause for all defendants, defendants can then point
fingers at each other to determine if one was more at fault than the other.
Deep Pockets Concept: if one negligent defendant is incapable of paying the plaintiff, the other
negligent defendants are responsible for paying their share. They can then recover on basis of
Contribution: one defendant paying for another defendant’s portion of recovery to a
plaintiff if one party paid more than his pro rata share of the liability.
Joint wrongdoers are each individually responsible for the entire damage done by their joint
negligence when either of them would have produced the outcome regardless of the other.
Limits to Contribution
Intentional Torts: usually an intentional tortfeasor may not get contribution from his cotortfeasors who have behaved intentionally as well.
Medical Malpractice: original tortfeasor is responsible for the injury and the doctor may be
responsible for the aggravation of the injury, but not the injury itself. They are not jointly and
severally liable to each other and owe no contribution to each other’s damages.
Examples of Joint and Several Liability regarding natural disasters
If there are 2 fires, both necessary and sufficient and both from wrongful or negligent origin,
then the defendant is liable
If there are 2 fires, both necessary and sufficient, with one of their origins being unknown, then
defendant is liable
If 2 fires, both necessary and sufficient, with one of wrongful in origin while the other natural,
the defendant is not liable (natural disasters or “acts of God” vitiate all liability)
If known fire got there first, defendant is liable
If unknown fire got their first, defendant is not liable
If unknown fire swallows known fire, no liability
Indemnity: shifts the damages from secondary party to primary party, even when secondary is
negligent (often when a contract precludes liability from one party)
 Appropriate where one party has a greater liability or duty which justly requires him to
bear the whole burden.
 Vicarious liability: most commonly, indemnity is granted to a defendant who is only
vicariously liable for another’s conduct.
 Retailer v. Manufacturer: a retailer, which is held strictly liable for selling a defective,
injury cause product, will usually get indemnity from other further up the distribution
chain including the manufacturer of the product
Right to Indemnity by Contract Contracts in which one person promises to indemnify another
against consequences of his own negligence are generally upheld. The right to indemnification
will not be read into an agreement unless there is evidence that the right was clearly intended.
Vicarious Liability When one is held for damages caused by another simply because of his
relationship to that person (e.g., employer for employee’s torts, landowner with nondelegable
duty breached by an independent contractor, etc.), this party may seek indemnification from the
person whose conduct actually caused the damage.
Identifiable Difference in Degree of Fault A number of jurisdictions extend the principle of
indemnity to allow one joint tortfeasor to recover against a co-joint tortfeasor where there is a
considerable difference in degree of fault.
Joint and Proportionate Liability: coming to rise in comparative fault jurisdictions. Even
when an injury is indivisible, defendants are liable only for their proportion of the fault.
a. Once not used for intentional torts, now is used for them.
b. Deep pockets theory widely accepted
c. Rejects pro rata contribution and replaces it with
comparative fault liability.
d. Contribution still available through determination of a jury
e. Plaintiff bears the risk that one or several tortfeasors cannot
be identified or are insolvent.
Court says, based on fairness, each party is responsible for only their own fault and it is the
responsibility of the plaintiff to find all partied who inflicted harm on them.
Comparative Contribution A majority of states have now adopted a comparative contribution
system based on the relative fault of the various tortfeasors. Comparative contribution changes
the traditional method of apportionment in contribution cases (supra) and supplants
indemnification rules based on identifiable differences in degree of fault. In both situations,
nonpaying tortfeasors are required to contribute only in proportion to their relative fault.
Example: Plaintiff suffers $100,000 in damages from the combined negligence of D1 and
D2. The jury determines that D1 is 80% at fault and D2 is 20% at fault. Applying joint and
several liability rules, plaintiff recovers all $100,000 of her damages from D2. Under
comparative contribution, D2 can recover $80,000 from D1.
The doctrine of proximate causation is a limitation of liability and deals with liability or no
liability for unforeseeable or unusual consequences of one’s acts.
General Rule of Liability The general rule of proximate cause is that the defendant is liable for
all harmful results that are the normal incidents of and within the increased risk caused by
his acts. In other words, if one of the reasons that make defendant’s act negligent is a greater risk
of a particular harmful result occurring, and that harmful result does occur, defendant generally
is liable. This test is based on foreseeability.
Direct cause case
Where there is an uninterrupted chain of events between the negligence by the defendant and the
harm to the plaintiff. There are no intervening or superseding causes.
Foreseeable Harmful Results—Defendant Liable
If a particular harmful result was at all foreseeable from defendant’s negligent conduct, the
unusual manner in which the injury occurred or the unusual timing of cause and effect is
irrelevant to defendant’s liability.
Example: D is driving her sports car down a busy street at a high rate of speed when a
pedestrian steps out into the crosswalk in front of her. D has no time to stop, so she swerves to
one side. Her car hits a parked truck and bounces to the other side of the street, where it hits
another parked vehicle, propelling it into the street and breaking the pedestrian’s leg. D is liable
despite the unusual way in which she caused the injury to the pedestrian.
Unforeseeable Harmful Results—Defendant Not Liable
D, a cabdriver, is driving too fast on a busy elevated highway, threatening P, his
passenger, with injury. Without warning, the section of highway that D is on collapses because
its support beams had deteriorated with age. P is seriously injured. Even if D’s negligent conduct
was an actual cause of P’s injury (because the cab would not have been on that section of the
highway but for D’s speeding), courts would not hold D liable for the injury to P.
Proximate cause asks whether the alleged cause was too remote or trivial, whether the harm
occurred in an unusual way, or was an unusual result, that could never have been foreseen by the
Conceptual/Foreseeability (Cardozzo): If the risk of injury to the plaintiff was not one of the
risks which made the defendant’s conduct wrongful, then the plaintiff should not be allowed
to recover even if the defendant’s breach of duty directly and immediately injures the plaintiff
Unforeseeable Extent or Severity of Harm—Defendant Liable
Thin Skull Doctrine: carves out an excepting to the foreseeability test. It injects the element into
something that is unforeseeable, since defendants cannot know what every plaintiff’s prior
conditions are. Therefore, the defendant is responsible for the plaintiff “as he lies”. Although the
plaintiff may be particularly hypertensive, he is not barred from recovery, and defendant will still
be liable for harms caused.
Directness Approach (Andrews): there is a duty to the public at large for any and all injuries
resulting UNLESS there is a superseding cause; foreseeability is not needed
WHERE INTERVENING FORCES ARE PRESENT. Whether an intervening force will cut
off defendant’s liability for plaintiff’s injury is determined by foreseeability
Foreseeable Results Caused by Foreseeable Intervening Forces—Defendant Liable
Where defendant’s negligence caused a foreseeable harmful response or reaction from an
intervening force or created a foreseeable risk that an intervening force would harm plaintiff,
defendant is liable for the harm caused.
Dependent intervening forces are almost always foreseeable
1- Subsequent Medical Malpractice
UNLESS there is gross mistreatment
2- Negligence of Rescuers
3- “Reaction” Forces
4- Efforts to Protect Person or Property
5- Subsequent Disease
6- Subsequent Accident
Acts of God
Acts of God will not cut off defendant’s liability if they are foreseeable. Example: D, a roofer,
negligently left a hammer on P’s roof at the end of the day. P is struck by the hammer when a
strong wind blows it off the roof. D is liable to P.
Foreseeable Results Caused by Unforeseeable Intervening Forces—Defendant Usually
Most courts would generally find liability here because they give greater weight to
foreseeability of result than to foreseeability of the intervening force. An EXCEPTION
exists, however, where the intervening force is an unforeseeable crime or intentional tort of a
third party; it will be deemed a “superseding force” that cuts off defendant’s liability
Unforeseeable Results Caused by Foreseeable Intervening Forces—Defendant Not Liable
Unforeseeable Results Caused by Unforeseeable Intervening Forces— Defendant Not
PRIMA FACIE CASE To establish a prima facie case for strict liability, the following elements
must be shown:
1. The nature of the defendant’s activity imposes an absolute duty to make safe;
2. The dangerous aspect of the activity is the actual and proximate cause of the plaintiff’s
injury; and
3. The plaintiff suffered damage to person or property.
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