Torts Midterm Outline
SECTION 1
Intentional Torts
Assault: A physical act of a threatening nature or an offer of corporeal injury that puts an
individual in reasonable fear of imminent bodily harm.
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Elements of Assault
o 1) Intentional Act
o 2) That is threatening
o 3) That puts person in reasonable fear
o 4) Of imminent harm
Cases:
- Picard v. Barry Buick-Pontiac Inc.
o A shady car dealer charged at a woman while pointing and yelling at her, and
touched her camera.
 Was this an assault or battery or both?
 The defendant’s actions were neither accidental or involuntary,
therefore a battery.
 Assault means to frighten, and is actionable even if no contact.
 A conditional threat can be outside of assault. If he threatened her
not to take a picture and then she did (consent), she might not have
a case here.
 Voluntary touching, non-accidental, non-consensual touching. And
for assault a physical act of a threatening nature.
o Plaintiff proved elements of assault and battery.
Battery: An act intended to cause, and did in fact did cause, "an offensive contact with or
uncontested touching of or trauma upon the body of another, thereby generally resulting in the
consummation of the assault.
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Elements of Battery:
o 1) A contact
o 2) That is unconsented
o 3) And was intentional
o 4) Causing injury
 Examples:
 A kick to the leg (Vosburg)
 With the ground (Garratt)
Someone acts intending to cause a harmful or offensive physical contact; an unlawful
touching
Only intent to make contact is necessary
In order for a contact to constitute battery at a civil law, two elements must be satisfied:
o Contact must have been deliberate
o Contact must have been harmful or offensive at law
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Cases:
- Talmage v. Smith
o Defendant throws stick at plaintiff(s) on the roof to get them to leave his property,
accidentally hits one in the eye causing permanent injury
 Was this battery because he did not intend to hit them?
 Yes. He intended to throw the stick, unreasonable force, negligent.
- Vosburg v. Putney
o Defendant (14) kicked plaintiff (11) in the shin resulting in a slew of medical
complications leading to the plaintiff’s eventual loss of use of that limb
 Was this battery because he didn’t mean for all the medical
complications?
 Yes. He intended to kick him. It was outside the bounds of regular
classroom behaviour.
 As long as the intent to make contact, the intent to do harm is
irrelevant
- Wagner v. State
o Mr. Giese, mentally disabled patient, attacks Wagner in line at a store resulting in
injury. He has a history of violent episodes. Was accompanied by supervisors.
 Was this battery because Giese is mentally disabled and didn’t intend to
hurt her?
 Yes. He intended to make a contact that was unconsented.
- Garratt v. Dailey
o Five-year-old pulls out chair from under his aunt which causes her to fall and
break her hip
 Can a five-year-old be held liable for battery?
 The court held that the element of intent for a battery claim, is
satisfied when the defendant knows, with substantial certainty, that
his/her act will result in offensive contact.
 The court also held that a minor can be liable for an intentional
tort.
o Court found that Garratt did not intend to cause the harm,
7but awarded Dailey damages.
- Wishnatsky v. Huey
o Huey closes door on Wishnatsky who was trying to enter a room during a private
conversation
 Does “rude and abrupt” conduct constitute battery?
 While Huey's conduct was rude and abrupt, the reasonable man
would not find this action offensive due to the intrusion upon a
private conversation in Wishnatsky's manner
 Wishnatsky is overly sensitive
Strict Liability: Holding someone responsible regardless of context
- In strict liability, the claimant need only prove that the tort occurred and that the
defendant was responsible.
o The law imputes strict liability to situations it considers to be inherently
dangerous.
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Negligence: Carelessness.
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Elements of Negligence:
o Defendant had a duty to the plaintiff,
o Defendant breached that duty by
o Defendant failed to conform to the required standard of conduct
o Defendant's negligent conduct was the cause of the harm to the plaintiff
Cases:
- Hammontree v. Jenner
o Defendant was an epileptic who was cleared to drive by doctors and who was on
medication. He had a seizure while driving causing him to crash the car into the
Plaintiff’s shop.
 Is this a case of absolute liability or negligence?
 Plaintiff argues for absolute liability for damages.
o Court holds that liability of a driver, suddenly stricken by
an illness rendering him unconscious, for injury resulting
from an accident occurring during that time rests on
principles of negligence.
o Jenner did not act negligently in operating his vehicle and
cannot be held liable for damages.
 Absolute liability cannot apply when a driver
suffers a sudden illness that renders him/her selfunconscious and results in an accident.
 This is a negligence case not a liability case
False Imprisonment: False imprisonment is defined as an unlawful restraint of an individual’s
personal liberty or freedom of locomotion.
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Elements of false imprisonment:
o A restraint
o That is unjustified or unlawful
Ways in which an actor may bring about the confinement required as an element of false
imprisonment:
o (1) actual or apparent physical barriers;
o (2) overpowering physical force,
o (3) threats of physical force;
o (4) other duress; and
o (5) asserted legal authority.
Cases:
- Lopez v. Winchall’s Donut House
o Employee is accused of stealing and is questioned by two other employees in the
backroom of her workplace on her day off
 Was she falsely imprisoned? Does she have a case for IIED?
 No to both.
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
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“Moral pressure, as where the defendant remains with the
defendant to clear himself of suspicion of theft is not enough; nor,
as in the case of assault, are threats for the future
In the tort of false imprisonment, it is not enough for the defendant
to have felt “compelled” to remain in the baking room in order to
protect her reputation.
Intentional Infliction of Emotional Distress: One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress, and if bodily harm to the other
results from it, for such bodily harm. Physical harm is not a requirement.
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Elements of IIED:
o (1) that the actor intended to inflict emotional distress; or that he knew or should
have known that emotional distress was a likely result of his conduct;
o (2) that the conduct was extreme and outrageous; (beyond the bounds of a
decent society) and was intentional or reckless
o (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and
o (4) that the emotional distress sustained by the plaintiff was severe.’
Cases:
- Womack v. Eldridge
o Defendant took Plaintiff’s photo under false pretenses, this photo later mistakenly
came up in association with a case for child molestation.
 Does the plaintiff have a prima facie case for IIED?
 The distress caused by the plaintiff’s actions was severe.
Reasonable minds could differ on whether or not the conduct was
extreme and outrageous. However, there were enough lasting
repercussions for court to rule in favor of the plaintiff.
o Intentional: Specific intent or purpose to carry out the act. Not involuntary or
accidental.
o Reckless: Knew or should have known emotional distress would likely result.
o Outrageous: Behavior beyond the bounds of what normal society would consider
tolerable or acceptable.
Conversion: A strict liability tort. A permanent interference with someone’s ability to enjoy
their property.
- Elements of Conversion:
o Must interfere with owner's right to enjoy their property permanently
o Unauthorized use of the property
o Must be tangible or must pass the merger test
 Merger test: A physical property that gives ownership rights to an
otherwise intangible object that holds significant value (ex:
certificates of stock, promissory notes, and other papers of value
Cases:
- Thyroff v. Nationwide Mutual Insurance Co.
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o Defendant repossessed plaintiff’s computer and denied him access. The computer
held personal email correspondences and other personal information that the
plaintiff has ownership rights to.
 Are intangible digital objects subject to conversion?
 Merger Test: Digital information is protected under the merger test
because it can be made tangible at any point by printing it, and
it is stored on a hard drive which is tangible
 Permanent Interference: Repossession and denial of
access interfered with property that the plaintiff was legally
entitled to
Trespass to Chattels: A temporary interference with someone’s ability to enjoy their property
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Elements of Trespass to Chattel:
o 1) The lack of the plaintiff's consent to the trespass,
o 2) Interference or intermeddling with possessory interest, and
o 3) The intentionality of the defendant's actions.
 Actual damage is not necessarily a required element of a trespass to
chattels claim.
Cases:
- Compuverse v. Cyber Promotions
o Defendants distributed spam e-mail advertisements to Plaintiff’s subscribers.
Plaintiff requested that Defendants stop, but Defendants continued. Plaintiff
employed measures to block Defendants’ messages, but these measures were
frequently circumvented.
 Can the sending of spam messages through a company's email system
constitute trespass to chattels?
 Yes. Electronic signals sent via a computer are sufficiently tangible
to form the basis of a cause of action for trespass to chattels, and
interference from that can be actionable.
o Plaintiff instituted numerous measures to prevent the
Defendant from continuing, after the notice, which created
a situation where the disk space and processing power was
diminished.
 The ability for their server to run normally was
affected, even if temporarily; therefore, trespass to
chattels applies.
Defenses
Consent: The defense of consent doesn't dispute that a criminal act took place; rather, it states
that the conduct was permitted by the victim.
Cases:
- Hart v. Geysel
o Plaintiff died during an illegal but consensual prize fight.
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
Can one claim damages from an injury resulting in a consensual fight
without the elements of excessive force, mutual anger, or malice intent
present?
 No. One who engages in prize fighting, even though prohibited by
law, and sustains an injury, should not have a right to recover any
damages because he expressly consented to and engaged in the
fight as a matter of business or sport.
Self-Defense: The use of reasonable force to protect oneself or members of the family from
bodily harm from the attack of an aggressor, if the defender has reason to believe he/she/they
is/are in danger.
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Elements of Self-Defense:
o The circumstances surrounding the defendant were such to lead a reasonable man
to believe that his life was in danger, or
o That he was endanger of receiving great bodily harm at the hands of the
defendant
Self-defense is a common defense by a person accused of assault, battery or homicide
Entitles one to use reasonable force when she reasonably believes that another is about to
commit an actionable battery or to defend another who reasonably appears to be
threatened by an imminent attack
Cases:
- Courvoisier v. Raymond
o Defendant shoots a police officer after having his home burglarized thinking the
non-uniformed officer was one of the rioters. Defendant fired a warning shot but
wasn’t wearing glasses before shooting officer.
 Is the plaintiff able to claim self-defense?
 Where a defendant, in a civil action like the one before us, attempts
to justify on a plea of self-defense, he must satisfy the jury not only
that he acted honestly in using force, but that his fears were
reasonable under the circumstances, and also as to the
reasonableness of the means made use of.
o Reversed in favor of the defendant.
Necessity: A defendant typically invokes the defense of necessity only against the intentional
torts of trespass to chattels, trespass to land, or conversion.
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Elements of Necessity:
o The doctrine of necessity in certain cases justifies entry onto and interference with
personal property that would otherwise constitute trespass.
o Applies with special force to the preservation of human life.
 Necessity is only a defense if peril is imminent; and if you preserve your
property at the expense of another person's property, that constitutes
trespass and you are liable for the damage.
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
If one preserves property at the expense of another’s without threat or
menace from plaintiff’s property or an unavoidable incident due to act of
god, then Plaintiff is entitled to compensation for damages.
Cases:
- Ploof v. Putnam
o Defendant owned a dock. Plaintiff was sailing on the lake with his wife and
children when a storm placed all patrons of the boat in great danger. Plaintiff
sought to save his family and his boat from destruction by mooring it to
Defendant’s dock. Defendant’s caretaker unmoored the boat, which caused it to
be driven into the shore and destroyed, and Plaintiff’s wife and children to suffer
injuries.
 Was plaintiff’s entry onto defendant’s private property permitted by the
doctrine of necessity?
 Yes. It was necessary to dock in order to save lives.
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Vincent v. Lake Erie Transportation
o Defendant tied their steamship to a dock owned by Plaintiff. The steamship was at
the Plaintiff’s dock to unload cargo. Storm started, navigation suspended.
Defendant signaled for a tug to tow the steamship from the dock but no tug was
available because of the storm. The Defendant’s steamship remained tied to
Plaintiff’s dock. If the steamship had been untied, it would have drifted to sea.
The storm threw the steamship into Plaintiff’s dock causing damage to the dock.
 Is Defendant, acting under the privilege of private necessity, liable for
damages incurred to Plaintiff’s property?
 Yes. A party acting under private necessity is liable for damages
incurred to the property of other
o Necessity is only a defense if peril is imminent; and if you
preserve your property at the expense of another person's
property, that constitutes trespass and you are liable for the
damage.
o If one preserves property at the expense of another’s
without threat or menace from plaintiff’s property or an
unavoidable incident due to act of god, then Plaintiff is
entitled to compensation for damages
 It was necessary to dock there, but he was still
liable for damages.
SECTION 2
Vicarious Liability
Vicarious Liability: Vicarious liability refers to a situation where someone is held responsible
for the actions or omissions of another person. In a workplace context, an employer can be
liable for the acts or omissions of its employees, provided it can be shown that they took place in
the course of their employment.
o A type of vicarious liability is respondeat superior; an employer is liable for the
torts committed by her employees in the scope of her employment.
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Cases:
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Christenson v. Swenson
o Swenson was assigned to guard Gate 4 at Geneva Steel Plant. On her lunch
break (at a café was located 150-250 yards away from Gate 4) On the day in
question, Swenson placed a phone order and drove to the café to pick it up in
order to return to Gate 4 and eat at her post. She expected the round trip to
take no more than 15 minutes, the amount of time permitted for lunch breaks.
On her return, she collided (in a car) with a motorcycle just outside of
Geneva’s property and several were injured.
 If an employee commits a tort outside the “regular” scope of their
employment but during time while they are being paid by their
employer for somewhat related employment duties, is the employer
vicariously liable for torts committed by its employees?
 Under doctrine of respondeat superior (holding an employer
liable for the employee’s wrongful acts committed within the
scope of the employment), employers are vicariously liable for
torts committed within the scope of their employment
 Birkner test for scope of employment:
o 1. Employee’s conduct must be of the general kind
employee is hired to perform.
o 2. Employee’s conduct must occur substantially within
the hours and ordinary spatial boundaries of the
employment.
o 3. Employee’s conduct must be motivated, at least in
part, by the purpose of serving the employer’s interest.
 The court held that reasonable minds could
differ as to whether Defendants’ trip to the cafe
fell substantially within the ordinary spatial
boundaries of her employment and therefore
summary judgment was inappropriate.
 Reversed and remanded.
Negligence
Negligence: A breach of duty or a failure of one party to exercise the standard of care required
by law, resulting in damage to the party to whom the duty was owed.
Elements of Negligence:
- Duty
- Breach
- Causation
- Damages
o You are negligent when your failure to exercise due care for others causes them
harm
o We owe a duty of reasonable care to others
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Due Care and Reasonableness
Due Care: refers to the effort made by an ordinarily prudent or reasonable party to avoid harm
to another, taking the circumstances into account. It refers to the level of judgment, care,
prudence, determination, and activity that a person would reasonably be expected to do under
particular circumstances.
Cases:
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United States v. Carroll Towing
o Plaintiff owned a barge (Anna C), which was chartered by a railroad
company. The barge, with a cargo of flour owned by the United States, was
moored to the end of the pier. Plaintiff chartered a tug company, Carroll
Towing Co. (Defendant) to drill out one of the barges. Defendant went aboard
the barge and readjusted its mooring lines. The barge broke free of the
mooring lines due to this readjustment and hit a tanker whose propeller broke
a hole in the barge causing it to dump its cargo and sink. No one was aboard at
the time. Defendant argued that is someone was aboard the barge to observe it
leaking after it broke free, the cargo and the barge could have been saved.
 Who should be held liable for barge damages and lost cargo?
 We owe a duty of reasonable care to others
 The Hand Formula: The Hand formulation provides that an
actor is in breach if the burden of taking measures to avoid the
harm would be less than the multiple of the probability of the
kind of incident in question times the gravity of the harm
should it occur.
o (1) The probability of the kind of incident in question;
o (2) the gravity of the resulting injury or lose; and
o (3) the burden of adequate precautions.
 B<PL formula us an early example of looking at legal problems through a
cost-benefit or economic lens: “law and economics” risk/reward
 If cost prevention is lower than the cost of accidents, companies
will pay the prevention fee (safety equipment, etc.)
 If cost of prevention is higher, companies would rather pay torts
plaintiffs
o The barge owner should have had a bargee aboard during the daylight working
hours to keep an eye on things, therefore, they’re liable for the loss.
o The court applied the “burden was less than the injury multiplied by the
probability” formula and found that the burden of having an attendant aboard the
barge was less than the gravity of injury of a runaway barge multiplied by the
probability that the barge would break free if unattended.
 A person may be liable for failing to take reasonable precaution
against great risk of injury even when the probability of the injury
occurring is very small
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Adams v. Bullock (1919)
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o Defendant operated a trolley system powered by overhead wires—a railroad
bridge crossed over wires. Plaintiff was crossing the bridge while carrying an
eight-foot wire. The boy’s wire dangled over the edge of the bridge and hit the
trolley wires, causing a shock and resulting burns to Plaintiff. Plaintiff sued
Defendant, alleging negligence.
 Is a party considered negligent if he has taken reasonable precautions
to avoid foreseeable dangers?
 No one standing on the bridge at the time or bending over
railing could reach it without the use of something out of the
ordinary and therefore difficult to anticipate.
 No special danger at the bridge to warn defendant to take
precaution, accident had never occurred before so there was no
reason for the trolley conductor to be apprehensive or
cautionary (unpredictable)
o Negligence is not present because the defendant acted
within lawful exercise of his duty and could not have
taken further precautions because the accident was
unpredictable.
Braun v. Buffalo
o Uninspected, exposed wires that were insulated on construction lot. To get
around wires you have to go under or go through them, plaintiff touched the
wire and was electrocuted.
 Is the defendant liable for damages? Were the negligent?
 Yes. The Defendant is liable.
o Since the plaintiff was just walking through the vacant
lot, he was not acting unreasonably. The lot was in an
urban environment; it should be expected that people
will be walking through. Duty of care to ensure people
won’t be injured by walking through the lot.
Bethal v New York City Transit Authority (Common Carriers)
o Bethel (plaintiff) was injured on a bus run by the New York City Transit
Authority (defendant), when his seat collapsed under him. Bethel argued that
the Transit Authority had constructive notice of the seat defect, and that an
inspection would have revealed the defect and led to its repair. The trial court
instructed the jury that the Transit Authority had a duty to exercise the highest
standard of care to ensure passenger safety. The trial court instructed the jury
to apply this heightened standard of care in deciding whether the Transit
Authority had constructive notice of the seat defect that would have led to
inspection and repair of the seat. The jury found for Bethel and the New York
Supreme Court, Appellate Division affirmed.
 Does the duty of highest care apply, as a matter of law, to common
carriers?
 Precedent: Kelly v. Manhattan: The duty of utmost care, so
far as human skill and foresight can go, is changed to owing a
duty of reasonable care under all circumstances
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o Court aligns standard of care required of common
carries with the traditional standard of reasonable care,
instead of basing its decision of Kelly v. Manhattan
o Plaintiff couldn’t prove the defendant actually knew
about the defect in the seat
o Negligence is subject to the "reasonable man theory"
 The rule of a common carrier's duty of
extraordinary care is no longer viable. Rather,
common carrier is subject to the same duty of
care as any other potential tortfeasor; common
carrier is now subject to reasonable care
Proving Negligence: Customs
Rules vs. Standards:
- Rules: Clear statements of law (one who drive over a grade crossing is liable) (judge)
- Standards: Flexible (Liability for a driver one a grade crossing will be determined based
on what is reasonable given the circumstances) (jury)
Custom: Customary law is unofficial law in short. It is the long-established customs (standards
of community) of a particular place or locale that the general law regards as a legal practice.
Cases:
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Baltimore & Ohio Railroad v Goodman
o Plaintiff was driving his automobile truck and was killed by a train operated
by Defendant running at not less than sixty miles per hour. Plaintiff’s estate
argued that he had no practical view beyond a section house until he was
about twenty feet from the rail, or twelve feet from danger. The railroad line
was straight, it was daylight, and Plaintiff was familiar with the crossing.
Defendant argued that Plaintiff’s own negligence caused his death.
 Rule of Due Care: If a driver is not sure of whether train is
dangerously near, his or her standard of care is to stop, get out of his or
her vehicle, and look
 Plaintiff is responsible for his own death. Plaintiff knows that
he must stop for the train. If a driver cannot be sure if a train is
dangerously near, then he must stop and get out of his vehicle
to check. If he does not, he fails to meet the standard of
conduct required of a careful driver and is responsible for his
injuries.
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Pekora v. Wabash Railway
o Defendant had four railroad tracks. Plaintiff, in his vehicle, attempted to cross
the tracks. Plaintiff could not see the main track because a boxcar on the first
track obstructed his view. Plaintiff stopped and listened for a bell or whistle
but did not hear either. Plaintiff did not get out of his vehicle to obtain a better
view as the opinion in Baltimore seemed to require. The trial court directed a
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verdict for Defendant on its finding that Plaintiff had been contributory
negligent.
 A person is required to slow down and look when he approaches a
railroad crossing. A person is not required to stop and get out of the
vehicle, especially if it is dangerous to do so.
 Due care: To get out of a vehicle is uncommon precaution, as
everyday experience informs us.
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Trimarco v. Klein
o The shattering of a bathtub enclosure’s glass door led to Plaintiff’s severe
injury. Defendants owned the building in which this occurred, and had used
ordinary as opposed to shatterproof glass in constructing the
enclosure. Plaintiff sued to recover for his injuries, and received a substantial
judgment. The Appellate Division reversed and dismissed the complaint.
 Rule: Proof of Customary Practice
 Certain dangers have been removed by a customary way of
doing thing safely, this custom may be proved to show that the
defendant has fallen below the required standard. When proof
of customary practice is coupled with a showing that it was
ignored and that this departure was the proximate cause of the
accident, it may serve to establish liability
o A plaintiff may offer evidence of custom, common
usage and practice in making his case for negligence,
but such evidence is not binding since the reasonable
person standard is the standard used.
o As long as defendant's conduct was found to be
reasonable by the jury, it does not matter whether or not
this conduct complies with customary practice
Negligence Per Se
Negligence Per Se: Unlike ordinary negligence, a plaintiff alleging negligence per se need not
prove that a reasonable person should have acted differently -- the conduct is automatically
considered negligent, and the focus of the suit will be over whether it proximately caused
damage to the plaintiff.
Cases:
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Martin v. Herzog
o The decedent of Martin (plaintiff) was killed when a buggy he was driving
collided with an automobile driven by Herzog (defendant). A statute required
all buggies to be operated with headlights at night. At the time of the accident,
Martin’s decedent was violating this statute by not driving a buggy with
headlights. Martin brought suit against Herzog for negligence. Herzog
countered by stating that Martin’s decedent was liable for contributory
negligence based on his violation of the headlight statute.
 Herzog is not liable for damages because Martin’s decedent engaged
in contributory negligence by violating the headlight statute. An
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
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omission, or failure to perform an act required by statute, constitutes
negligence per se.
When a statute requires an affirmative action, the failure to perform
that action constitutes a violation of a legal duty. It is negligence per
se.
 The only thing left to determine is causation and injury. If
Plaintiff’s failure to light the buggy was the cause of the
accident, then it is contributory negligence.
Telda v. Ellman
o Brother and sister, junk collector, walking Eastbound on Sunrise Highway. No
sidewalks and could not use grass in center strip because they were
transporting junk in baby carriages. Two were hit from behind on the edge of
the eastbound lane. Defendant does not contest negligence but argues for
contributory negligence on the part of the plaintiffs
 Statute Says: Pedestrians walking or remaining on the paved portion
or traveled part of the roadway shall be subject to, and comply with,
the rules governing vehicles, with respect to meeting and turning
out, except that such pedestrians shall keep to the left of the center lane
thereof, and turn to their left side instead of right side thereof, so as to
permit all vehicles passing them in either direction to pass on their
right. Such pedestrians shall not be subject to rules governing vehicles
as to giving signals.
 Court cannot assume that a statute put in place to preserve
human life must be strictly followed even if it subjects a person
to more imminent danger
 General duty is established by the statute and deviation from it
without good cause is a wrong. Plaintiffs had good reason to
not abide by statute. Defendant held liable.
Proving Negligence and Res Ipsa Loquitur
Type of Evidence:
- Real Evidence: The “smoking gun” that makes this an open and shut case
- Direct Evidence: Eyewitness testimony
- Circumstantial Evidence: There were broken jars on the floor, no one herd jars falling
in the last 20 minutes and the aisle had not been cleaned in about an hour
o Why is circumstantial evidence accepted?
 Sometimes that’s all there is, and it is obvious someone has been
negligent
Business Practice Rule:
- Where a business practice for a store—having a self-service module, for example –creates
a continuous and foreseeable risk of harm to customers, the store owner is presumed to be
on notice and, therefore, an injured plaintiff need not prove actual or constructive notice.
Res Ipsa Loquitur: (the thing speaks for itself)
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Elements of RIL:
o 1) Must be able to prove that the instrumentality that caused the injury was
under exclusive control of the defendant
o 2) Accident would not have occurred in an ordinary course of events, without
negligence on the part of the one in control
o 3) Accident must not be caused in part by plaintiff in any way
Cases:
- Byrne v. Boadle
o Since the barrel fell, and barrels don’t ordinarily fall out of windows absent
negligence, it is prima facie evidence of negligence.
o Where the facts of an accident, in and of themselves, establish that without the
defendant’s failure of due care, the accident would have not occurred, a judge will
presume negligence
 This is a rule of proof in negligence cases
 Switches traditional burden
 Other requirements:
o Plaintiff is not required to eliminate all possible other
causes, rather, plaintiff has to prove that it is reasonable
that this could have only happened because of negligence
o This applies where there is insufficient direct evidence
that negligence existed
 So, you can see RIL as an exception to the normal
course of proving your negligence case, duty,
breach etc.
 Only used in cases with circumstantial evidence
 RIL is not strict liability (you are liable because
you did x): if the defendant can prove that he did
exercise due care, there is no negligence
 RIL is just a mode of proof
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Negri. Stop ‘n’ Shop Inc.
o Negri (plaintiff) slipped and fell while shopping at the Stop and Shop, Inc.’s
(defendant’s) store. On the floor where Negri slipped were broken jars of baby
food. A nearby witness did not hear anything fall or break in the 15 to 20
minutes before Negri fell, and the area had not been cleaned or inspected for
between 50 minutes and two hours prior to the accident. The jury found for
Negri, but the New York Supreme Court, Appellate Division reversed and
dismissed Negri’s complaint.
 Dismissal of a plaintiff’s negligence claim is inappropriate where there
is some evidence in the record that can support the plaintiff’s claim.
 Circumstantial evidence that a defendant had constructive notice of a
dangerous condition that allegedly injured its customers and did not
remedy it can be enough to make out a prima facie case of negligence.
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-
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Gordon v. American Museum of Natural History
o Gordon (plaintiff) slipped on a piece of paper and fell on the steps of the
American Museum of Natural History (defendant). The paper came from a
concession stand that the Museum contracted to operate on the steps. Gordon
testified that he saw other pieces of paper on another portion of the steps prior
to his fall. Gordon argued that the Museum either had actual notice or
constructive notice of the dangerous condition created by the papers, and that
it was negligent in failing to remedy this condition.
 Here, there was no evidence in the record to support Gordon’s claim
that the Museum had actual notice or constructive notice of a
dangerous condition created by the paper on the Museum’s steps.
 Appellate Division’s decision should be reversed, and the
complaint dismissed.
Byrne v. Boadle
o Critchley was on Scotland Rd on the right side headed northbound, same side
as defendant's shop. Saw a barrel of flour fall from the window, struck the
plaintiff on the shoulder, and knocked plaintiff down, he was carried into the
shop next door. Horse and cart came opposite defendant's door carrying flour,
witness doesn’t think the barrels were being lowered by rope but cannot say
for sure. Flour was not swinging when it hit plaintiff. Plaintiff claims he did
not see the flour coming and lost recollection of the accident, but there was no
sign warning him of any danger.
 It is the duty of persons who keep barrels in warehouses to make sure
they don’t roll out. Barrel cannot roll out of a warehouse without some
negligence. The fact of its falling is evidence of negligence.
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McDougald v. Perry
o Plaintiff was driving behind a tractor-trailer being driven by Perry. Tractortrailer went over railroad tracks, 130 lb. spare tire came lose, rear-wheels ran
over the tire causing the tire to bounce into the air and crash into the
windshield of the plaintiff's car. Perry said he performed a pre-trip inspection,
including the chain. But did not check every link on the chains
 Under the doctrine of res ipsa loquitur, the mere fact of an accident
occurring, without more, may be sufficient to maintain a claim of
negligence.
 In certain cases, an accident could not have occurred without some
kind of negligence. The case at bar is such a case. A spare tire likely
would not detach from a truck without some negligence on the part of
the driver or the truck owner.
 Therefore, McDougald need not present any other evidence;
the mere fact that the tire detached and struck his car is enough
to maintain his claim of negligence against the truck driver.
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Ybarra v. Spangard
o Plaintiff was diagnosed with appendicitis and was scheduled for
surgery. After being given an injection, and in the course of preparation for
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surgery members of the surgical team adjusted Plaintiff, so that his back
rested against two hard objects. After surgery, Plaintiff complained of neck
and back pain. His condition worsened, eventually resulting in paralysis. The
evidence established that his condition was the result of trauma.
 Where a plaintiff receives unusual injuries while unconscious and in
the course of medical treatment, all those defendants who had any
control over his body or the instrumentalities that might have caused
the injuries may be held liable in an action based on res ipsa loquitur.
Duty and Breach
Affirmative Obligations to Act
- There can’t be a breach of due care without a duty to exercise due care
- Duty to Act (to rescue) when someone else is in danger
o The duty if cases focuses on your actions that affect (could harm) others; recue is
saving someone from someone else’s actions
o Is nonfeasance actionable?
 There is no duty to rescue
 However, there are affirmative duties to act in certain
circumstances. Why is there no general duty?
o Rescue could put yourself in danger
o Autonomy
o How much is required?
Exceptions to No Duty to Rescue
- There are exceptions to the no-duty to rescue rule:
o Special Relationships (Harper v. Herman)
o Common Undertakings (Farwell v. Keaton)
o Duty to control others (Tarasoff v. Regent)
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Harper v. Herman
o Harper was one of four guests on Herman's sailboat, was invited by another
guest, Harper and Herman did not know each other. Herman was considered
to be in charge of the boat. Docked in a shallow area so the guests could
swim. Harper asked Herman if he was "going in" Herman responded
affirmatively and without warning Harper dived off the boat into
approximately 2-3 feet of water. Harper hit the bottom of the lake, severed his
spinal cord and rendered a quadriplegic. Harper claims that because Herman
was in charge of the boat he owed a duty of care to warn him that the water
was too shallow to dive into
 Special relationship Defn: Common carriers, inn keepers, possessors
of land who hold it open to the public or, persons who have custody of
another person under circumstances in which that other person was
deprived of normal opportunities of self-protection.
 Special relationship did not exist because record does not
show Harper was particularly vulnerable or that he lacked the
ability to protect himself.
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Farwell v. Keaton (Common Undertaking)
o Siegrist (defendant) and Farwell drove to a parking lot to return a car, and
then waited there for a friend. Started harassing two grls whose friends chased
Siegrist and Farwell, and severely beat Farwell. Siegrist then drove injured
Farwell around for two hours, and Farwell fell asleep in the back of the car.
Around midnight, Siegrist parked the car at Farwell’s grandparents’ house,
tried unsuccessfully to wake Farwell, and then left, with Farwell still
unconscious in the back of the car. Farwell was found the next morning and
died of his injuries three days later.
 Where a person voluntarily attempts to aid someone in peril, or where
a person knows that someone is in peril and there is a special
relationship between the parties, an affirmative duty arises to exercise
reasonable care in rendering aid.
 The two were companions in a common undertaking, which
implies that one party will assist the other if he is in peril.
o Dissent: The court should reject Siegrist’s contention
that there is a legal duty to assist others where
assistance would greatly benefit society, and where the
person in a position to offer help would incur only a
reasonable burden. Siegrist may have had a moral
obligation, but he did not have a legal duty to assist
Farwell.
Affirmative Obligations and Duty to Control Others
Cases:
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Randi W. v. Muroc Joint Unified School District
o Randi (plaintiff), a 13-year-old student, alleged that Gadams, the viceprincipal of her school, sexually assaulted her. She brought claims for
negligent misrepresentation and fraud against four school districts
(defendants) that had previously employed Gadams. Randi alleged that the
school districts, despite knowing of complaints against Gadams for sexual
misconduct, gave him unreservedly positive letters of reference, and that
Randi’s school relied on these positive references in hiring Gadams.
 In general, a person is not liable to another for nondisclosure or a
failure to act, absent a special relationship between the parties.
 However, an employer may be held liable for failing to disclose
negative information about an employee, where the employer’s
recommendation amount to an affirmative misrepresentation that
presents a foreseeable and substantial risk of physical harm to a third
person.
 An important factor to consider in determining whether a legal
duty exists is the foreseeability of harm to the plaintiff.
o Here, the school districts could foresee that Randi’s
school would rely on their recommendations of Gadams
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and hire him, and that after being hired Gadams might
go on to molest a student.
o You don't have to write a recommendation but once you
start to disclose something, you have to disclose all
material information
 The Court of Appeals decision is therefore
affirmed as to negligent misrepresentation and
fraud.
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Tarasoff v. Regents of University of California
o Tarasoff and her fellow student, Prosenjit Poddar, briefly shared a romantic
interaction on New Year’s Eve 1968. After that, Tarasoff was unresponsive to
Poddar’s advances and dated other men. This all aggravated Poddar, and he
went to see Dr. Lawrence Moore, a psychologist employed at the university’s
medical center. Poddar confessed to Moore that he intended to kill Tatiana. At
no point did anyone associated with the Regents warn Tatiana or her parents
of possible danger. Poddar killed Tatiana in her home.
 When a therapist learns from his patient about intent to do harm to a
third party, the therapist has a duty to take reasonable precautions
given the circumstances to warn the potential victim of danger.
 Their failure to warn constitutes actionable negligence.
 Even though the therapist-patient relationship is highly
confidential and protected from disclosure, public policy
concerns supporting the protection of victims from foreseeable
violence justifies imposing upon therapists a legal duty to warn
potential victims.
Duty of Landowners and Occupiers
Premises Liability:
- Trespassers: A person who is unlawfully on your land
o Landowners have no duty to trespassers
- Licensees: On premises with permission but for own (ex: social) purposes
o Landowners have a duty to. make safe dangers of which they are aware
- Invitees: Invited on to premises for owner’s (ex: business) purposes
o Landowners duty of reasonable care to protect against known and should have
known dangers
Landlords and Tenants:
- Traditionally, landlords only had duties to tenants in certain circumstances: ex; where…
o Tenant’s injury is from a hidden danger the landlord knows about or,
o The premises are leased for public use or
o The premises where the injury occurred are retained under the landlords control
(like a common area) or
o The premises were negligently repaired by the landlord
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o A tenant is assaulted on premises as a result of landlord’s failure to take adequate,
necessary precaution against criminal activity
Cases:
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Carter v. Kinney
o Carter (plaintiff) fell and was injured on a patch of ice in the driveway of
Ronald and Mary Kinney (defendants). Carter was present on the Kinneys’
property to attend a bible study they were hosting at their home. There was no
general invitation to the public to attend the bible study. The Kinneys argue
that in this case Carter was a licensee, and that they owed no duty to him to
remove unknown dangers. Carter argues that he is an invitee, and the Kinneys
owed him a duty of care to protect him against unknown but discoverable
dangerous conditions. The trial court dismissed the Kinneys on summary
judgment, finding that the Kinneys had no duty to Carter, as a licensee.
 A landowner does not owe a duty of care to protect a licensee from
unknown dangerous conditions
 There are three classes of plaintiffs in premises liability cases:
 Trespassers, which include all entrants to land until the owner
of the land gives them permission to enter;
 Licensees, which include all persons who enter land with
permission; and
 Invitees, which include persons who have reason to believe
that the premises have been made safe, after the possessor of
the premises invites the visitor with the expectation of a
material benefit from the visit, or extends a general invitation
to the public.
 The duty of care the possessor owes the visitor is based on the
possessor’s intention in making the invitation:
 a possessor owes no duty of care to a trespasser;
 a possessor owes a duty to a licensee to remove known
dangers; and
 a possessor owes a duty to invitees to exercise reasonable care
to protect them from dangers the possessor knows exist, or
which would be revealed by inspection.
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Heins v. Webster County
o While exiting hospital after a visit with his daughter, a nurse, plaintiff fell on
accumulated ice and snow, causing injury. Plaintiff also worked as a Santa
Claus at the hospital. Multiple factors to consider when determining if it met
reasonable care requirement:
 Under traditional invitee-licensee classification, a landowner does not
owe a duty of care to warn a licensee of a known dangerous condition.
 Other factors to consider in determining whether a landowner
has exercised reasonable care are the visitor’s purpose in
entering the premises, the circumstances under which the
visitor entered the premises, the intended use of the premises,
the reasonableness of the landowner’s inspection, repair, or
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warning, the ease of repairing or giving a warning, and the
burden on the landowner in providing adequate protection.
o Because the county owed a duty to Heins, as a lawful
hospital visitor, to exercise reasonable care in
maintaining the premises, the district court’s decision is
reversed, and the case remanded for new trial.
 Hospital liable because it owes a duty of
reasonable care for all lawful visitors
Duty: Economic Harm
Pure Economic Loss: Pure economic loss is financial damage suffered as the result of the
negligent act of another party which is not accompanied by any physical damage to a person or
property.
Foundational Concepts for Causation:
- 1) If not for negligence of third party, you would not have suffered a loss
- 2) Foreseeability: it is reasonable for experts to be relied upon and to be relied upon for
specific transactions.
o Connection between negligence and the harm
Negligent Misrepresentation
- Elements of Negligent Misrepresentation:
o One who, in the course of doing business, supplies false or misleading
information for guidance of others, is subject to liability for economic loss
caused to them by justifiable reliance on that information if he fails to exercise
reasonable care in obtaining or communicating the information
 Ex: “unlike in Nycal where the report was made specifically for this
company only and was therefore made internally, in case x, the report
was made for public access (external) and was therefore relied upon”
o The plaintiff has to be the person to whom the defendant intended to supply
the information (or knows would use it, and)
o The plaintiff’s reliance on the information has to be for the specific
transaction, or set of transactions, intended for us
Notes:
- Two scenarios:
o 1) Where the defendant is negligent in providing some service—auditing, legal,
architectural work to a third party and, as a result of such negligence, plaintiff
suffers economic loss
 Examples: investment advice, preparation of a will
 Ex: Rich aunt wants to leave all her money to you, lawyer
negligently assists other parties so that you lose your right to that
inheritance
 Plaintiffs here are intended beneficiaries
o Points to economic loss
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o 2) Defendant creates a dangerous condition or causes physical harm to a third
party and as a result, the plaintiff more or less directly suffers economic harm
(even though no connection to third party)
 Ex: Someone negligently causes an accident, road closure for days, people
can’t get to your store so you suffer economic loss.
 Accident my not have directly harmed you, but if not for
defendant’s negligence you would not have lost money
-
-
Who owes a duty of care?
o Drug testing companies (Duncan v. Afton)
 Drug testing companies owe duty to third party employees because it
knew the employer would rely on its report to take action against those
employees
o Guidance Counselor (Sain v. Community School Dist.)
 Guidance counselors owes a duty of due care to student advisee even if
there is no formal relationship because the counselors job is to provide
advice and he realizes that his advises are likely to rely on his advice
 Ex: 13 Reasons Why?
An automatic relation of trust is established between individual users and ‘experts’
o Fiduciary laws: state executors, financial planners etc.
o Doctors: medical malpractice laws
Cases:
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532 Madison Ave Gourmet Foods v. Finlandia Center Inc.
o Building on the same block collapses causes brick/mortar/etc. to fall
onto Madison Ave. Stores within a 15-block radius were shut down by police
order for about 5 weeks Plaintiffs allege shoppers were not able to get
to their stores while Madison Ave. was closed due to traffic
 If the collapse of two buildings in midtown have rained down debris
that cause property damage-perhaps, but not necessarily, personal
injury—would there be recovery in tort?
 For the property damage: Yes
 For personal injury: Yes
 For the attendant economic loss: Yes.
 For “pure economic loss”—business interruption losses? No.
 You cannot foreseeably know that there will be a general harm
 If the store was not physically damaged and no one was hurt then
you’re not liable purely for potential economic loss
 Court concludes that the plaintiff's negligence claim falls
outside the scope of duty owed to them by defendants and
should be dismissed.
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Nycal Co. v. KPMG Peat Marwick
o Gulf Resources & Chemical Corporation (Gulf) retained KPMG Peat
Marwick LLP (KPMG) (defendant) to audit its financial statements. KPMG
did not know of the transaction between Gulf and Nycal until a few days prior
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to its closing. Gulf later filed for bankruptcy, making Nycal’s investment
worthless. Nycal brought suit against KPMG, claiming that its audit report
negligently misrepresented Gulf’s financial condition. Plaintiff invested and
lost money in reliance upon defendant’s financial report prepared for target
company
 Rule: Under the Restatement (Second) of Torts, § 552, a person
commits the tort of negligent misrepresentation if he or she, in the
course of business, fails to exercise reasonable care in providing false
information, and another party relies on that information to its
detriment.
 Other jurisdictions have recognized three tests for determining
the scope of an accountant’s duty of care to non-clients:
o (1) the foreseeability test;
o (2) the near-privity test; and
 (3) the test contained in the Restatement (Second) of Torts, §
552.
o In this case, the facts do not show that KPMG knew or
should have known that Nycal, or a group of which
Nycal was a member, would receive and rely on the
audit report.
1) Under the foreseeability test, which Nycal urges this court to adopt, an accountant may
be liable to any person the accountant could reasonably have foreseen would receive and
rely on the accountant’s information.
- While courts in this state have applied the traditional tort principle of foreseeability to
cases involving a professional’s duty to a third party for personal injury, our courts
have declined to do so in cases involving pecuniary losses.
- The principle is ill suited to accountants, whose clients control the dissemination of
the information provided.
2) Under the near-privity test, which KPMG urges this court to adopt, an accountant may
be liable to any person with whom the accountant is in privity, or a relationship
sufficiently approaching privity.
- The test requires that:
o 1) the third party relies on inaccurate information provided by the accountant;
o 2) the accountant knows that the information will be relied on; and
o 3) there is some conduct by the accountant that creates a direct link to the
third party.
3) Under Restatement (Second) of Torts, § 552 Test, more similar to liability standards
previously applied in professional contexts in this state
- Under § 552, a person commits the tort of negligent misrepresentation if he or she, in
the course of business, fails to exercise reasonable care in providing false
information, and another party relies on that information to his or her
detriment.
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Causation (Cause in Fact)
- Causation asks: Did the defendants negligence case the harm for which you are suing
Cause in Fact In a personal injury case, the “cause in fact” is the condition, action, or object that
caused the plaintiff's injuries.
- The cause in fact may have caused the entire injury or only a part of it.
- If the defendant's behavior created the cause in fact, the defendant may be liable for
negligence.
Two Causation Questions: (Need both for causation):
- 1) What is the cause in fact? Did it actually lead to the harm? (The “but for” clause)
o Did the action directly cause the harm (Ex: person jumping in front of train
causing trains to be delayed)
- 2) Was it the proximate cause? Was the legal cause such that we should blame the
defendant for the harm?
o Were the persons actions that led to the harm, so connected to the harm that
we should hold this person liable?
Toxic Torts: Where someone’s negligence resulted in exposure to substance that could (and
allegedly did) cause disease—is a significant portion of modern tort litigation
Multiple and Sufficient Causes (Kim K and Justin set the fires
- We use a substantial factor test:
o Can’t use “but for” analysis
o We don’t know whose particular fire caused the damage
“Substantial Factor” Causation:
- Can be proven if:
o A negligent act increased the likelihood that a particular type of accident
would occur and
o That mishap did in fact occur
o This leads to a rebuttal presumption of causation
 Then defendant has to prove that he wasn’t the cause
Cases:
- Stubbs v. City of Rochester
o The City of Rochester (the city) (defendant) maintained separate water
systems for drinking, known as the Hemlock system, and for firefighting,
known as the Holly system. The two systems intermingled the Hemlock
system became contaminated with sewage present in the Holly system. Stubbs
(plaintiff) worked at a factory one block from the Brown Street Bridge, where
he drank water daily. When he became ill with typhoid fever he brought suit
against the city for negligence.
 It is not necessary for a plaintiff to eliminate all other possible
causes of the injury. Here, Stubbs worked at a factory one block away
from where the water was contaminated, and drank water there daily.
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
-
Viewing the facts and the inferences to be drawn from them in
a light most favorable to Stubbs, this court finds that the issue
of whether the city’s negligent water contamination caused
Stubbs’ illness should have been submitted to the jury.
o The judgment is reversed and the matter remanded for a
new trial.
Zuchowicz v. United States
o Zuchowicz filed a prescription for the drug Danocrine (Naval Hospital—US
government) The prescription directed the plaintiff to take nearly twice the
recommended maximum dosage which she took for nearly a month before
she switched to the maximum recommended dosage for roughly 2 months. 4
months later Zuchowicz was diagnosed with PPH, a rare and fatal heart
disease. The treatment for the disease included heart and lung transplants and
while on the list to receive a lung transplant she became pregnant, making
her ineligible. One month after giving birth Zuchowicz died
 Causation:
 A negligent act was deemed wrong because the act increases
the chances that a particular type of accident would occur; and
 A mishap of that very sort did happen, this is enough to support
a finding by a tier of fact that the negligent behavior caused the
harm.
o Link established by the plaintiff that the overdose was
at least a contributing factor in his wife's illness and
that the overdose was a product of negligence.
Therefore, causation was proved.
Joint and Several Liability
Joint and Several Liability
- In a joint and several liability jurisdictions, plaintiff sues for damages against both
defendants and could recover the entire amount from one, leaving the defendant
who pays to make a contribution claim against the other defendants who were at
fault
o If you were 20% at fault for the harm, you could still pay for 100% of the
damages (to the plaintiff)
o Fault percentage was only relevant to how much a defendant could claim from
another defendant
Comparative Fault
- In a comparative negligence jurisdiction—where a defendant’s liability can be
reduced based on the contributory fault of the plaintiff, so too can a defendant’s
liability be reduced relative to another defendant’s comparative fault
o Defendant’s contribute damages according to their percentage of fault
o If one party is insolvent, defendants still only have to contribute the amount
for which they were at fault
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Damages:
- In contributory negligence, if plaintiff is 5% responsible and defendant is 95%
responsible, plaintiff gets no damages
o Modern jurisdictions: In order for defendant to assert ‘complete defense’
plaintiff has to be 50% contributory
- In comparative fault, if plaintiff is 5%, one defendant is 50% and other is 45% at
fault, plaintiff can still recover the 45% and 50%
Cases:
-
-
Hymonwitz v. Eli Lilly
o FDA approves estrogen mimicking drug, DES. Had concluded it was
generally safe for use during pregnancy. DES is manufactured generically by
numerous different companies making it difficult to determine which
particular batch a patient was taking. In addition, because of the amount of
time that passes between consumption of the drug and cancer diagnosis, many
defendants claim a lapse in the statute of limitations. Drug was later linked to
cancer in the daughters of women taking this drug.
o For plaintiff to prove liability they must prove
 Mother ingested DES during pregnancy
 Injuries were caused by DES
 That the defendants produced and marketed DES for pregnancy
purposed
 Market Share Liability Concept When there are multiple
companies involved in the manufacturing of a product and it is
unclear which company manufactured the specific part of the
product that was defective (and caused injury) so all parties are
held accountable.
o Damages are split by market share
Summers v. Tice
o Summers (plaintiff), Tice (defendant), and Simonson (defendant) went quail
hunting. Tice flushed a quail out of the bushes and both he and Simonson shot
at the quail in the direction of Summers. They were using birdshot. One pellet
hit Summers’ eye and one hit his lip. It is unknown which pellet was shot by
which man. Summers brought suit for negligence against both Tice and
Simonson.
 Under the doctrine of joint or several liabilities, two independent
tortfeasor may be held jointly liable if it is impossible to tell which
one caused the plaintiff's injuries, and the burden of proof will shift to
the defendants to either absolve themselves of liability or apportion the
damages between them.
 When two defendants not acting together both serve as a
proximate cause of a plaintiff’s injuries, both may be held
liable for the full extent of the damage and the burden of proof
shifts to each defendant to work out a fair apportionment of
damages among themselves.
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o The decision of the trial court holding both Tice and
Simonson fully liable for Summers’ injuries is affirmed.
Proximate Cause
Proximate Cause: A proximate cause is an event sufficiently related to an injury that the courts
deem the event to be the cause of that injury.
- There are two types of causation in the law: cause-in-fact (page 23) and proximate (or
legal) cause.
Causal Chain:
- Justin Bieber negligently drives a car into gas station, explosion ensues, sound of
explosion scares Britney Spears, Britney Spears drops a baby.
o Where do we assign the harm that resulted to the baby?
 Justin Bieber did not have proximate cause because it was impossible
to foresee that Britney would drop the baby as the result of his
negligent action
 Foreseeable harms might have been hitting someone, damaging the gas
station etc.
Egg Shell Plaintiff Rule: Once the defendant causes some injury to the plaintiff, the eggshell
plaintiff rule imposes liability to the full extent if those injuries, not merely those that were
foreseeable.
- The rule states that, in a tort case, the unexpected frailty of the injured person is not a
valid defense
Types of stories that create causal analysis:
a. Idiosyncratic Reactions (Egg Shell Plaintiff, Benn)
b. Unexpected types of harm to expected victims (Polemis, Wagon Mound)
c. When there is intervening misconduct (Doe)
d. Unexpected Victim (Palsgraff)
Cases:
- In Re Arbitration Polemis
o Owners of ship seeking damages from defendants who chartered the ship,
claiming defendant’s negligence started a fire. Defendant had hired third party
to move benzene from one hold to another using a sling. Wood boards were
used to create a temporary platform for the furnace while the transfer was
taking place. Sling/rope came into contact with one of the boards knocking it
into the hold resulting in the fire and causing total destruction of the ship
 Anticipations by the defendant of the type of damage that could have
occurred is irrelevant, there is no distinction between foreseeable
extent of damage and foreseeable type of damage
 Damage claims are not too remote to recover, defendant is
held liable
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-
-
-
The Wagon Mound
o Defendant spilled oil near Plaintiff's wharf (boat) and made no effort to
disperse the oil before sailing away. Manager of the Plaintiff's wharf stopped
all welding and burning until he could assess the damage from the oil spill
concentrated near the boat. After assessment, he felt he could safely resume
operations while taking necessary precautions to avoid the igniting the
flammable liquid. Two days later oil had not dispersed and ignited, causing a
fire to spread and extensively damage plaintiff's wharf. Trial court found that
a piece of debris containing cotton or rag was underneath the wharf and
caught fire when molten metal fell from the boat. This caused the floating oil
to catch fire either directly or by way of ignition of a wood pile coated with
oil. Trial court awarded damages to plaintiff
 Criticism of Polemis Rule: Polemis rule holds that a defendant is liable
for all consequences of his action despite whether or not they could be
reasonably foreseen
 Reasonable Foreseeability: A man should only be held liable for
damages he could have reasonably foreseen. It is unfair to hold a
defendant reliable for any and all damages caused by his actions if
he had no way of knowing such damages could occur as a result.
 Overruled Polemis
 Damage was a direct result but was unforeseeable therefore
the defendant is not liable.
Benn v. Thomas
o Benn suffered a bruised chest and broken ankle after Thomas (defendant)
rear-ended Benn’s vehicle. Benn died of a heart attack six days later, and
Benn’s estate (plaintiff) sued. Benn had a history of coronary disease,
diabetes, had suffered a heart attack, and was at risk of having another. The
medical evidence presented at trial was divided as to whether the accident
caused Benn’s death. The jury found that Thomas’s negligence was not the
proximate cause of Benn’s death. The court of appeals reversed, based on the
trial court’s refusal to instruct on the eggshell plaintiff rule.
 Under the eggshell plaintiff rule, a defendant may be liable for all
damages resulting from his negligence, even if the plaintiff suffers
injuries greater than what an ordinary person would have suffered.
 There was sufficient evidence to permit the jury to decide
whether Benn’s heart attack and death were the result of the
injuries caused by Thomas’s negligence.
 The court of appeals decision is affirmed, and the matter
remanded to the trial court for a new trial.
Palsgraf v. Long Island Railroad
o Plaintiff was buying a train ticket on the platform when the train arrived. Two
men were running for the train and one almost fell, two railroad employees
went to help him. The man who almost fell dropped the package he was
holding which contained fireworks. The fireworks exploded causing scales to
27
fall at the other end of the platform. The falling scales hit the plaintiff causing
her injuries, she sues for damages.
 Rule: A defendant is only liable for negligence if he owes a legal duty
to the plaintiff and breaches that duty, and if the resulting harm was
reasonably foreseeable
 The package was not marked and the employees had no way of
knowing what was in it, therefore, they could not reasonably
foresee that if the package dropped it would have exploded and
she would have been injured
o Dissent: Proximity of the plaintiff to the act should not
be material in determining liability if the act is still the
direct cause of the injury. Just because she wasn’t in the
foreseeable zone of danger does not mean that the
negligent actor did not cause her injury.
Superseding Causes
Superseding Cause: A superseding cause is an unforeseeable intervening cause. By contrast, a
foreseeable intervening cause typically does not break the chain of causality, meaning that the
tortfeasor is still responsible for the victim's injury—unless the event leads to an unforeseeable
result.
Cases:
-
Doe v. Manheimer
o Doe (plaintiff) was raped by an unidentified assailant on a portion of property
owned by Manheimer (defendant) that was shielded from the sidewalk and
street by overgrown bushes and grasses. The property is in a high crime area.
Doe claims that Manheimer knew or should have known that a third party in a
high crime area might use the overgrown vegetation to conceal crimes, and
that the overgrowth contributed to the occurrence and duration of the assault
against her. The jury found for Doe, but the trial court set aside the verdict,
finding that Doe had failed to establish proximate cause as a matter of law.
 A landowner will not be held liable for a third party’s conduct unless
the harm suffered is within the scope of the risk created by the
landowner’s negligence.
 Legal cause has two components, causation in fact, and
proximate cause. The test for causation in fact is whether the
injury would have occurred in the absence of the defendant’s
conduct.
o The issue of proximate cause is ordinarily a question of
fact for a jury, and may only be decided as a matter of
law where there is no room for reasonable
disagreement. The test for proximate cause is whether
the defendant’s conduct is a substantial factor in the
injury.
28

In this case, no reasonable jury could find that
Doe’s injuries were within the scope of risk
created by Manheimer’s conduct.
Contributory and Comparative Negligence:
Contributory Negligence:
- Contributory negligence is a defense to a claim of negligence
o If the plaintiff is responsible the defendant is not (complete defense)
o The plaintiff must have:
 Acted negligently
 His actions actually caused
 And were the proximate cause of the harm
- Contributory negligence is a complete defense: Clear, but harsh
Comparative Negligence: (doesn’t bar recovery)
- Pure Comparative Negligence: If you are 90% at fault for your own injury you
recover 10%
- Modified <: “not as great as”: Apportion fault as long as plaintiff’s fault is <
defendant’s
- Modified ≤: “no greater than”: Apportion fault as long as plaintiff’s fault is ≤
defendants’
o Comparative Negligence (either modification): Apportioning fault, seems
more just, but more difficult to determine percentage of fault.
Cases:
- Fritts v. Mckinne
o Fritts was seriously injured when a truck either he or a friend was driving
struck a tree. Fritts and his friend had been drinking prior to the accident. Five
days later Dr. McKinne (defendant) performed a tracheostomy during a
surgery to repair Fritts’s extensive facial fractures. Fritts began bleeding and
died three days later. Fritts’s estate (plaintiff) sued McKinne, claiming that he
negligently failed to isolate the proper artery during surgery. McKinne argued
comparative negligence, because Fritts’s initial injuries were caused by either
driving drunk or riding while drunk with a drunk driver. The jury found for
McKinne.
 Rule: A physician may be held liable for providing negligent medical
treatment even if the patient’s injuries were originally caused by the
patient’s own negligence.
 Here, McKinne testified that Fritts’s alcohol consumption was
not a problem in performing the surgery five days after the
accident. Because Fritts’s conduct was not related to his
medical treatment, it was error to submit the issue of
comparative negligence to the jury.
o The trial court’s judgment is reversed and the matter
remanded for a new trial.
29
Assumption of Risk
Review:
1) Contributory negligence is a complete defense: Clear, but harsh
2) Comparative Negligence (either modification): Apportioning fault, seems more just, but
more difficult to determine percentage of fault
3) Defenses come out of causation (duty, breach, causation, damages)
4) Express Assumption of Risk: In contracts
Implied Assumption of Risk:
- Implied Assumption of risk usually requires:
o Knowledge of facts constituting a dangerous condition
o Knowledge that the condition is in fact dangerous
o Appreciation of the nature of the danger
o Voluntary exposure
 ‘knowing what you’re getting into and freely and voluntarily getting
into it’
- Primary: Assumed an inherent risk (no duty)
- Secondary: Knowingly encountering a risk the defendant created (true affirmative
defense)
o No risk in entering a pool, risk if the defendant put alligators in the pool\
- The key to assumption of risk is voluntary choice:
o The fan chose to sit in an area where he could be hit by a flying bat
Uniform Comparative Fault Act Summarized: Jury decides on percentage of fault, judge
decides the amount for damages based on the finding, one year to collect damages presuming no
determination that damages are uncollectible—after that year it allows for a reallocation of
damages. Joint and several liability jurisdictions. When there are several defendants involved
there is a contribution to one and they owe all, or you sue them all and get a portion
Hypos:
-
-
1) Alice is 40% at fault but and suffers $40,000 in damages. B is 30% at fault, C is
10% at fault, D is 20%. What is Alice’s recover under:
o Pure (Uniform Act): Alice is 40% at fault and suffers $40,000 damages, she
recovers $24,000 (60%) damage for which she isn’t liable
o Modified (Iowa Act): Same, the defendant’s caused the majority of damage
so they owe the 60%
2) Alice is 40% at fault but she suffers $40,000 in damages. B is 30% at fault, C is
10% at fault, D is 20% at fault but is insolvent. What is Alice’s recover under:
o Pure Comparative Negligence, with joint and several liabilities (Uniform
Act): Alice is 40% at fault and suffers $40,000 damages, she recovers up to
$24,000 (60%) damage for which she isn’t liable, under joint and several
liability jurisdictions she can sue anyone but Dylan to recover the full amount
30
o Modified (Iowa Act): It’s not joint and several unless the defendants are
more than 50% at fault, but does the fact that D is insolvent change the
percentage at fault of the defendants?
 No, claimant does not have a greater percentage fault than the joint
liability of defendants, nothing in stature that suggest insolvency
negates liability
o Joint and Several Liability: $24,000 (she can recover from any of the
solvent defendants)
-
3) Alice is 40% at fault but she suffers $40,000 in damages. B is 30% at fault, C is
10% at fault, but he is also hurt and sustains 25,000 in damages. D is 20% at fault.
What is recovery for C:
o Pure (Uniform Act): $18, 500 (owes 10% of Alice’s damages, recover 90%
of his own)
o Modified (Iowa Act): Same. $18, 500 (owes 10% of Alice’s damages,
recover 90% of his own)
-
4) Alice is 51% at fault but she suffers 40, 000 in damages. B is 30%, C is 10%.
Dylan is 9%. What is the recovery for A:
o Uniform Act: Alice can recover 49% of damages ($19,600).
o Iowa Act: Alice recovers nothing.
-
Murphy v. Steeplechase Amusement Co.
o Steeplechase Amusement Co. (Steeplechase) (defendant) owns and operates
an amusement park at Coney Island. One attraction is called “The Flopper.” It
consists of a moving belt that causes passengers to be thrown backward or
aside based on its jarring movements. Murphy (plaintiff) stepped on the belt
and attempted to ride it. The belt suddenly jerked, most were uninjured, but
Murphy suffered a fractured kneecap.
 Rule: One who voluntarily participates in a sport accepts the inherent
dangers in it so far as they are obvious and necessary to participation.
 Murphy assumed the risks and cannot bring an action for
negligence against Steeplechase.
-
Davenport v. Cotton Hope Plantation LC.
o Davenport (plaintiff) rented a condominium on the top floor of a building
owned by Cotton Hope Plantation Horizontal Property Regime (Cotton Hope)
(defendant). There were three stairways leading to the top floor. Davenport
notified Cotton Hope that the lighting in the stairway closest to his unit was
not working, but he continued to use that stairway. Davenport tripped and was
injured on the darkened stairway, and brought suit against Cotton Hope.
 Rule: A plaintiff should not be barred from recovery by knowingly
assuming a risk, unless his degree of fault is greater than the other
parties’ negligence.
 In South Carolina, to establish an assumption of risk defense
the defendant must show that the plaintiff:
Cases:
31
o (1) knew of the facts constituting the dangerous
condition;
o (2) knew the condition was dangerous;
o (3) appreciated the nature and extent of the danger; and
o (4) voluntarily exposed himself to the danger.
-
-
-
Assumption of risk can be either express or implied.
o An express assumption of risk exists when the parties expressly agree that the
plaintiff will relieve the defendant of its legal duty toward the plaintiff.
 Express assumption of risk is therefore an absolute defense to a
defendant’s negligence.
Primary implied assumption of risk focuses on the defendant’s duty of care, and not
on the plaintiff’s conduct in assuming the risk.
o It is not an affirmative defense, but rather a part of the initial negligence
analysis, concerning whether the defendant’s legal duty includes the risk the
plaintiff encountered.
o Secondary implied assumption of risk is asserted only after the plaintiff
establishes a prima facie case of negligence, and concerns the plaintiff’s
conduct, which may be either reasonable or unreasonable in proportion to the
advantage sought from assuming the risk.
Express and primary implied assumption of risk are compatible with a comparative
negligence system.
Privacy:
Cases:
-
Sipple v. Chronicle Publishing Co.
o Sara Jane Moore shot at President Gerald Ford, attempting to kill him. Oliver
Sipple (plaintiff) grabbed Moore’s arm as she was firing the gun, potentially
saving Ford’s life. The San Francisco Chronicle published an article about
Sipple, which indicated that Sipple was gay. Sipple brought suit against
Chronicle Publishing Company and several other newspapers (defendants) for
invasion of privacy. Specifically, Sipple claimed that the defendants tortiously
publicized his homosexuality, a fact that, until the publications, was private.
 One who publicizes a matter concerning the private life of another is
not subject to liability to the other for invasion of privacy if the matter
publicized is of legitimate public concern.
 In this case, the trial court properly granted the newspapers summary
judgment for two reasons.
 First, Sipple’s homosexuality was not a private fact.
o Sipple’s sexual orientation had been previously
published and was known by hundreds of individuals
around the city and country.
o By the time of the newspapers’ statements, Sipple had
placed his homosexuality in the public domain. The
32
-
-
newspapers’ publications of the fact thus cannot be
deemed publications of a private fact.
 Second, the publications of Sipple’s homosexuality were
newsworthy.
o Sipple became a public figure when he grabbed
Moore’s arm and potentially saved the president’s life.
o Publication of Sipple’s sexual orientation was thus a
matter of legitimate concern to the public and was not
so offensive that it shocked community notions of
decency.
 The trial court’s grant of summary judgment to
the defendants is affirmed.
Nader v. General Motors Corp.
o Nader (plaintiff) is an author and lecturer on automotive safety who sharply
criticized General Motors Corp. Nader planned to publish a book detailing his
criticisms. Nader alleged GM questioned his friends, relatives and
acquaintances about highly personal and unflattering matters, kept him under
surveillance in public places for an unreasonable amount of time, cause him to
be trapped by women into engaging in sexual intercourse, made threatening
and harassing phone calls to him, tapped his telephone and eavesdropped, and
conducted a “continuing” and harassing investigation of him. Nader brought
suit against GM for the tort of invasion of privacy.
 Rule: To sustain a cause of action for invasion of privacy, a plaintiff
must show that the defendant’s conduct is truly “intrusive” and
designed to elicit information which would not be available through
normal inquiry or observation.
 Privacy is invaded only if the information sought is of a
confidential nature and the defendant’s conduct is
unreasonably intrusive.
 If Nader felt he was harmed by these activities, he should have
brought a tort action for intentional infliction of emotional
distress, rather than for invasion of privacy.
o This conclusion would be different if Nader acted in a
way that would reveal this private information to even a
casual observer.
 However, he did not act in such a manner and
thus GM’s actions meet the test for an invasion
of Nader’s privacy.
Gill v. Hearst
o Husband and wife were sitting in an affectionate pose in their place of work.
Employee from Harper's Bazaar took a picture of them and used it for an
editorial about how the world could not go around without love. The couple
saw the article and sued for invasion of privacy.
 Rule: When a person willingly exposes themselves in a public place, it
is not an invasion of privacy to take their picture
33
-
YG v. Jewish Hospital
o Wife, L.G., was five months pregnant, bearing triplets conceived through in
vitro fertilization at and under the guidance of the Jewish Hospital of St.
Louis. The Hospital held a social function to commemorate the fifth
anniversary of the IVF program, inviting the couples presently and previously
involved in the program. The appellants alleged that the Hospital had
“assured” them that there would be neither “publicity nor public exposure of
persons attending” the function. A film and reporting news team (KSDK),
however, was present at the function. They claimed that without express
permission, waiver or privilege, KSDK filmed the function and showed it on a
television program, disclosing (without mentioning the appellants names) that
Appellants were expecting triplets as a result of participation in the Hospital’s
IVF program. The Appellants added that, as a result, L.G. received numerous
calls, embarrassing questions and was chastised by her church. The husband’s
affidavit stated he was ridiculed at work.
 Rule: Appearance at a public function does not waive the right to
privacy concerning undisclosed or partially disclosed private matters.
 This was an invasion of privacy because the couple did not
waive their right to privacy simply by being at the function.
-
Daily Times Democrat v. Graham
o Woman in a fun house with her kids and a jet blew her dress up, exposing her
underwear. Picture was taken and posted in the Daily Times Democrat.
Picture included her children and showed her exposed underwear
 Any involuntary and instantaneous picture of someone in an
embarrassing situation is considered an invasion of privacy
Strict Liability
- Under an intentional tort regime, we assign liability for something done wrongfully
(wrongful because it was purposely done)
- Under negligence, we assign liability for something done wrongfully (wrongful
because it was done without due care for others)
- Under strict liability, we assign liability for harm done (doing it is enough to hold you
responsible; foreseeable injuries—your act still has to cause the harm)
Strict Liability Elements:
- (1) the risk of harm is great;
- (2) the harm that would ensure is great;
- (3) the activity is not one of common usage;
- (4) the harm cannot be prevented by utmost care;
- (5) the activity is inappropriate for the location where it took place; and
- (6) the social value of the activity is not sufficient to offset the risks
Cases:
- Rylands v. Fletcher
o Fletcher (plaintiff) leased several underground coal mines from land adjacent
to that owned by Rylands (defendant). Rylands owned a mill, and built a
reservoir on his land for the purpose of supplying water to that mill. Rylands
34
employed engineers and contractors to build the reservoir. In the course of
building the reservoir, these employees learned that it was being built on top
of abandoned underground coal mines. After the reservoir was completed, it
broke and flooded Fletcher’s coal mines. This caused damage to Fletcher’s
property, and Fletcher brought suit against Rylands. Rylands was held strictly
liable for damage caused to Fletcher’s property by water from the broken
reservoir.
 Rule: A person who disrupts the natural state of real property by
lawfully bringing something onto his land that, if it escapes, is capable
of doing harm, is strictly liable for any harm occurring as a natural
consequence of the escape.
 The building of a reservoir to bring a large mass of water on
Rylands’ property may not be considered a natural use, as it
impacts the amount of water that may potentially reach
Fletcher’s coal mine.
-
Sullivan v. Dunham
o Dunham (defendant) hired two men to clear a tree on his property with
dynamite. As a result of the blast, debris fell on a public highway, striking and
killing Sullivan. Her estate (plaintiff) sued Dunham and the two men. The trial
court instructed the jury that it did not need to find negligence to establish
liability. A verdict was entered for Sullivan, and the appellate division
affirmed.
 Rule: A person may not use his property in a way that causes direct
injury to another’s person or property, regardless of whether the injury
was intentional or negligent.
 Although Sullivan did not own the land where she was struck,
she had a right to be there.
 Dunham may be held absolutely liable for Sullivan’s injury and
death, regardless of whether Dunham’s conduct was negligent.
-
Indiana Harbour Belt Railroad v. America Cyanamid
o Defendant loaded 20,000 gallons of liquid acrylonitrile, a toxic substance, into
a railroad car in order to ship it to New Jersey. The car was sitting in
Plaintiff’s rail yard when a leak was discovered. The leak was eventually
brought under control, but 5,000 gallons of the toxic substance was spilled,
and it caused the evacuation of the surrounding area. The clean-up bill was
$981,022.75. Plaintiff sued Defendant to recover this cost. Plaintiff claimed
that Defendant was negligent, that the transportation of toxic chemicals was
an abnormally dangerous activity, and Defendant should be strictly liable.
 Manufacturers of dangerous material are not engaged in abnormally
dangerous activity simply by producing it
 Plaintiff fails to realize that the railroad is a hub and spoke system and
the hubs are in densely populated areas.
 Judgement reversed and remanded.
35
Products Liability
- Product liability is the area of law in which manufacturers, distributors, suppliers,
retailers, and others who make products available to the public are held responsible
for the injuries those products cause.
Cases:
- MacPherson v. Buick Motors Co.
o Buick sold an automobile to a retailer, who sold it to MacPherson (plaintiff).
The automobile contained a defective wheel which had been manufactured by
another company. The defect was unknown; however, Buick could have
discovered the defect through a reasonable inspection. The defective wheel
caused the automobile to collapse while MacPherson was driving, and he was
injured. MacPherson brought suit against Buick for negligence. The lower
court entered judgment for MacPherson and Buick appealed.
 Rule: 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.
 Because MacPherson as a purchaser was a foreseeable user of
Buick’s automobiles, Buick owed a duty of care to
MacPherson personally.
o Buick failed this duty by not performing a reasonable
inspection of its automobiles, and is liable to
MacPherson for negligence.
 The judgment of the lower court is affirmed.
o Dissent: There should be a distinction made between an act of negligence that
is imminently dangerous to the lives of others and an act that is not.
 For non-imminently dangerous acts, liability should only be
imposed if there is a contractual relationship between the parties.
 No contractual relationship existed between Buick and MacPherson, as
Buick only owed a duty of care to the immediate purchaser (i.e. the
retailer).
 Thus, Buick should not be liable for injuries suffered by
MacPherson.
- Since MacPherson had bought the car from a retailer, and not Buick directly there
was no privity.
o However, the New York Supreme Court changed the law to substitute
foreseeability for privity in a contract as a requirement for liability
-
Escola v. Coca-Cola
o Escola (plaintiff) worked as a waitress in a restaurant. One day, she was
placing bottles of Coca-Cola that had been delivered and one exploded in her
hand and caused her severe injuries. Escola brought suit against Coca-Cola on
the ground that the company was negligent in allowing excessive pressure or
gas to build up in the bottle, or using defectively-manufactured bottles which
were likely to explode.
36

Rule: A manufacturer incurs absolute liability when an article that he
has placed on the market, knowing it is to be used without inspection,
proves to have a defect that causes injury to human beings.
 Res Ipsa: the principle that the occurrence of an accident
implies negligence, defendant has exclusive control.
 While the retailer may be absolutely liable to the
public under implied warranties of fitness for
proposed use and merchantable quality,
permitting an injured individual to sue only
under these remedies may not be adequate to
ensure full recovery for damages.
 Defendant liable.
Products Liability: Design Defects
Ordinary Consumer Expectations Test: In a products liability tort case, a standard used for
determining if a design defect exists. The consumer expectation test makes the seller of a product
liable if the product is in a defective condition unreasonably dangerous to the consumer.
- The standard allows a jury to infer the existence of a defect if product fails to meet
reasonable expectations of consumers.
- In a case where there is no evidence, direct or circumstantial, available to prove
exactly what sort of manufacturing flaw existed, a plaintiff may establish his right to
recover by proving that the product did not perform in keeping with the reasonable
expectations of the user.
- A product falls beneath consumer expectations when the product fails under
conditions concerning which an average consumer of that product could have fairly
definite expectations
Crashworthiness Test: an automobile manufacturer may be liable either in negligence or strict
liability for injuries sustained in an accident, where a manufacturing or design defect caused or
enhanced the injuries, though not the accident itself.
Reasonable Alternative Design: An additional element required in some states to support a
products liability claim, which requires the plaintiff to show that there was a better and equally
economical way to design the same product.
Factors that determine whether a product is unreasonably dangerous: Ortho
(Pharmaceutical Corp. v. HeathOrtho)
- (1) the product’s usefulness and desirability;
- (2) the likelihood that the product will cause injury and the seriousness of such an
injury;
- (3) the availability of a safer substitute product;
- (4) the manufacturer’s ability to eliminate the product’s dangers without making it
less useful or too expensive;
- (5) the consumer’s ability to avoid the product’s danger through careful use;
- (6) the consumer’s likely awareness of a product’s inherent dangers because of an
obvious condition, or the existence of warnings or instructions; and
37
-
(7) the feasibility of the manufacturer either raising the price of the product to spread
the burden of potential loss, or carrying liability insurance.
-
Soule v. General Motors Corp
o Soule (plaintiff) was driving her 1982 Camaro when she was struck by
another vehicle near the left wheel of her car. The collision bent the Camaro’s
frame and tore loose the bracket that attached the car’s wheel assembly to the
frame. The wheel collapsed inward and hit the underside of the “toe pan,” the
slanted floorboard area beneath the pedals, causing it to crumple. Soule
sustained permanent injuries to both of her ankles. Soule sued General Motors
Corporation (GM) (defendant) alleging that a defective design of the Camaro
allowed the left front wheel to break free and smash the floorboard into
Soule’s feet and ankles. The jury found for Soule and awarded $1.65 million
in damages.
 Rule: The use of the “ordinary consumer expectations” test is not
appropriate in cases where the evidence does not permit an inference
that the product’s performance did not meet the minimum safety
expectations of ordinary users.
 Soule submitted crash test results and other evidence to show
that similar Camaro accidents did not generally produce wheel
bracket failure and resulting toe pan deformation.
 Under Barker, a product is still defective if its design embodies
“excessive preventable danger” that is, unless “the benefits of
the design outweigh the risk of danger inherent in such
design.”
o Here, Soule’s theory of design defect was technical and
mechanical in nature requiring the examination and
behavior of several obscure components of her Camaro
under complex circumstances.
 The judgment of the trial court is affirmed.
-
Camacho v. Honda Motors Corp.
o Camacho (plaintiff) suffered leg injuries when the motorcycle he was driving
was in an accident. (Honda) (defendant) designed and manufactured
Camacho’s motorcycle. Camacho sued, claiming that Honda was strictly
liable for a defective product, based on Honda’s failure to provide crash bars
or other leg protection devices that were available. The trial court dismissed
Honda on summary judgment.
 Rule: The proper test for strict liability for a design defect in this
jurisdiction is not whether a consumer contemplates the danger created
by a design defect, but whether the product is unreasonably dangerous
based on the totality of the circumstances.
 Under the crashworthiness doctrine
o Puts a greater burden on the designer or company
because in consumer expectations test, consumer can
Cases:
38
see the product and adjust (their own assumption of
risk)
o In more complex technology, consumer cannot see the
problem, so all responsibility and liability should go on
designer and absolves consumer
o Does not require manufacturer to provide absolute
safety, but reasonable safety measures—meets
crashworthiness test
 Here, there is some evidence that Honda could have included crash
bars on its motorcycles at an acceptable cost without reducing the
product’s utility, and that its failure to do so therefore made the
motorcycle unreasonably dangerous.
 Thus, summary judgment was improper. The judgment is
reversed, and the matter remanded for further proceedings.
o Dissent: An ordinary consumer knows that a motorcycle can be dangerous.
 Here, Camacho could have purchased a different motorcycle with
greater safety features.
-
Cronin v. JBE
o Bakery truck driver injured in crash when metal bread trays slide forward and
struck him in the back. Defendant appealed summary judgement for the
plaintiff on the grounds that the judge's charge omitted the requirement that
any defect in the product must be found "unreasonably dangerous.” Court
disagreed
 Plaintiff need only prove that there was a defect in manufacture or
design and that such defect was a proximate cause of the injuries.
Court believed the phrase "unreasonably dangerous" burdened the
plaintiff with a standard of proof that seems like negligence.
-
Baker v. Lull Engineering Co.
o Plaintiff was hurt when the high-lift loader he was operating over-turned on a
slope. Design defect claim was that the loader was not equipped
with outriggers that would have provided additional stability as a load was
being lifted, increasing the center of gravity of the loader. The regular
operator of the loader called in sick that day due to safety concerns he had
with the performing the lift proposed on sloped ground
 Plaintiff must establish that the product failed to perform as safely as a
regular consumer would expect when using the product in an intended
or reasonably foreseeable manner
 However, in a strict liability case as contrasted with a negligent design
action, the jury’s focus is properly directed to the condition of the
product itself and not to the reasonableness of
the manufacturer's conduct
 Court reversed a defense judgement because the term
unreasonably dangerous was used to charge the jury (prior to
rule in Cronin)
39
Duty of Care: Case Review
Case
Harper v. Hermann
Farwell v. Keaton
Tarasoff
Facts
Guest of guest jumps of boat
and is injured
Two men jointly out
harassing women, one friend
gets injured by other men and
the other friend leaves him in
the car. He dies.
Therapist failed to warn
victim highlighted in sessions
with attacker
Randi W.
Recommendation letter that
omitted all negative aspects
Heins v. Webster Country
Man was at the hospital to
play Santa and visit his
daughter. Was he there as an
invitee or licensee?
Audit report negligently
prepared and gave a
misrepresentation for what
company was about. Is
auditor liable?
Plaintiff is hit by scale in
train station when fireworks
in another passenger’s box
went off.
Nycal
Palsgraff
Duty?
No. No duty to warn—no
special relationship.
Yes. The two were engaged
in a “common undertaking”
and there was a special
relationship there (he started
to rescue)
Yes. Tarasoff was in control
of someone else. When you
are in control of others
(special relationship), you
have a duty to war.
Yes. Once they started to
write the recommendation
letter they cannot mislead.
Once you start a ‘rescue’ you
have to exercise due care.
The relationship was created
by initiation of performance.
Yes. Doesn’t matter what his
relationship was—hospital
owed a duty of due care.
No. There was no relationship
between auditor and person
suing. He did not know the
purpose of the report.
No. The injury was not
reasonably foreseeable. Long
Island railroad was not
directly connected so they
had no duty.
Liability and Negligence Review:
Joint and Several Liability (Review)
1) Under joint and several liabilities or all sums, a claimant may pursue an obligation
against any one party as if they were jointly liable and it becomes the responsibility of the
defendants to sort out their respective proportions of liability and payment.
Contributory Negligence: If P is 1% at fault, no damages
40
2) Contributory negligence in common law jurisdictions is generally a defense to a claim
based on negligence, an action in tort. This principle is relevant to the determination of
liability and is applicable when plaintiffs/claimants have, through their own negligence,
contributed to the harm they suffered
Comparative Negligence: Damages apportioned by fault
3) Comparative negligence states that when an accident occurs, the fault/negligence of
each party involved is based upon their respective contributions to the accident.
Pure Comparative Fault Jurisdiction: (New York)
4) Pure Comparative: Everything is apportioned to everyone
a. D1= 20, D2=70 P=10
i. P gets 90%
5) In a pure comparative negligence jurisdiction, each defendant is only liable for his or
her percentage of fault. A plaintiff is still able to recover damages in a pure
comparative negligence jurisdiction, even if he or she was at fault in contributing to the
accident.
Modified Comparative Fault: No greater than or as great as
6) This is the most common approach. Plaintiff will not recover if he/she is found to be
either equally responsible or more responsible for the resulting injury. In other words, in
order to recover damages, the plaintiff must not be more than 50% at fault for the
resulting injury.
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