TORTS
I.
INTENTIONAL TORTS
(about pages 1-113, 761-763)
A. Battery


Definition = the intentional, unprivileged, and either harmful or offensive contact with the person of another
Elements of a battery:
(1) Bodily contact
 What constitutes contact? Any level of contact is included, even contact with something very
closely associated with the plaintiff’s person
(2) Intent to cause the bodily contact
o Elements of Intent:
1) Purpose - Desire to cause the result (specific intent)
 Ex: Vosburg v. Putney
o If someone commits an act intentionally and the act causes harm to another,
whether foreseeable or not, they are still responsible for the damages.
o While he did not intend the harmful contact, he did intent the offensive
contact (the kick was the tort, not necessarily the losing of the leg). Intent does
not always mean intent for the outcome. The intent to commit an act
o Law: In an action to recover for assault and battery, the plaintiff must show
that either the intent behind the defendant’s actions is unlawful or the
defendant’s conduct itself is unlawful.
2) Knowledge to a substantial certainty that the result would occur (general intent)
 Actual intent - actually know the outcome (also add in somewhere imminent
apprehension as way to prove intent)
 Constructive intent - knowledge to a substantial certainty that the harm would occur
 Transferred intent = intend to hit person but accidentally hit a someone else (works
when A intends to hit B with rock but hits C; A intends to hit B with rock but miss
(intent to batter becomes intent to assault), or A intends to hit B but miss and almost
hits C)
 Also if A swings bat at B to frighten him but hits C = intent to assault A
transfers into intent to assault C, and actually becomes intent to batter
 Only works under these: Assault, Battery, False imprisonment, Trespass to land,
and Trespass to chattels
 Ex: Garratt v. Dailey
o A party must prove that D’s intent was to cause the harm or that he had the
knowledge with substantial certainty that the result would occur.
o Law: A minor may be held liable for the tort of battery if she acted
intentionally, with knowledge to a substantial certainty that her actions would
cause a harmful or offensive contact to another person.
o Under the majority view, both minors and incompetents will be liable for their
intentional torts; i.e., they are held to possess the requisite intent.
(3) Harmful or Offensive:
o What sorts of contact are harmful?
 Any level of physical harm is sufficient for liability; no minimum amount of physical
harm is required. There is no requirement for the detriment to be major. It is
established that there need not be contact for a battery to occur, however, the act
must offend a "reasonable sense of personal dignity"
 Contact is harmful if it causes actual injury, pain, or disfigurement. Contact is
offensive if it would be considered offensive by a reasonable person of ordinary
sensibilities. Contact is deemed “offensive” if the plaintiff has not expressly or
impliedly consented to it
 Contact must be either harmful or offensive. Cases dealing with offensive contact:
 Fisher v. Carrousel Motor Hotel
 The intentional snatching of an object from his hand is as clearly an
offensive invasion of his person as would be an actual contact with his
body.
-1-

Law: A party is liable for damages for humiliation for an intentional
offensive touching of anything connected with another individual and
actual physical contact with the actual body of another is not required.

McCracken v. Sloan
 The court found that P did not suffer a physical injury/illness from the
cigars D smoked, and they ruled that the mental distress suffered was
not enough to support a claim of assault or battery.
 Law: Assault and battery are two separate common law actions which
go together like ham and eggs. The interest in freedom from
apprehension of a harmful or offensive contact with the person is
protected by the action for assault. The interest in freedom from
intentional and unpermitted contacts with the plaintiff's person is
protected by the action for battery. It is not necessary that the contact
be brought about by a direct application of force. It is enough that the
defendant set a force in motion which ultimately produces the result.
The gist of the action for battery is not the hostile intent of the
defendant, but rather the absence of consent to the contact on the part
of the plaintiff.

Cohen v. St. Joseph Memorial Hosp (Smith)
 Every human being of adult years and sound mind has a right to
determine what shall be done with his own body, and a surgeon who
performs an operation without the patient's consent commits an
assault, for which he is liable in damages
 Law: An offensive touching can occur if a tortfeasor has knowledge of
a person’s unusual susceptibility and the tortfeasor then violates that
susceptibility, even if a reasonable person would not be offended by
the touching.
Also need causation  The defendant is liable not only for “direct” contact, but also for “indirect” contact; i.e., it will be sufficient if
he sets in motion a force that brings about harmful or offensive contact to the plaintiff’s person

Privileges:
a. Consent:
o Express – permission for something that is given specifically, either verbally or in writing
o Implied
1. Implied in fact (in conduct)
 O’Brien v. Cunard Steamship Co.
 Through lifting her arm for the shot and not directly objecting to it, she
implied consent through her appearance
 The court gives the burden to the patient to ask questions/object
 Law: A party is not liable for assault if the alleged unlawful contact was
justified or the accusing party otherwise consented to such contact.

2.
Bang v. Charles T. Miller Hosp
 A doctor is required to inform his patient of the possible risks of an
operation prior to it
 The court gives the burden to the doctor to inform the patient of the risks
 Law: One cannot legally consent to an operation when he is not fully
informed of the details of the operation.
Implied in Law (supplied by law)
 Ex: Emergency medical care; you can't expressly or imply in fact that they
consent, but you think the circumstances require you to help
 Kennedy v. Parrott
 While in a current operation that a patient consented to, if the doctor sees
something that requires immediate surgery, the doctor does not need
consent (but only when an emergency)
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

b.
Law: A surgeon will not be liable for battery or trespass on the body for
extending the scope of the operation during surgery, where he believes the
extension is necessary based on his best judgment and skill, without first
obtaining the patient’s consent.
Hackbart v. Cincinnati Bengals
 In certain zones of action, certain forms of consent implied by law can be
waived/avoided by facts, but some cannot be waived
 While the court usually tries to steer clear of judicial scrutiny over sports
(like academic settings), the court finds that there are no principles that
rule out certain tortious conduct by reason of general roughness of the
game or difficulty of administering it
 Law: A party is liable for damages for the intentional, unauthorized
striking of another even during the course of an otherwise violent activity.
Self-Defense and Defense of Others:
o § 63, 64, 65, 70, 71:
1) One can inflict reasonable, non-deadly force to defend self if reasonably believe they are
about to inflict the same force on them (or believe they are threatened by negligent
conduct)
 Unless retreat is available
2) One can inflict force likely to cause serious harm or death if reasonably believe they are
about to use that same force against them and they are put in peril of death or serious
harm that can only be prevented by such a force
 Unless retreat is available BUT not from one’s dwelling place (can include
things like vehicles)
3) The actor is not privileged to use any means of self-defense which is intended or likely to
cause a bodily harm… in excess of that which the actor correctly or reasonably believes
to be necessary for his protection
 If one does, they are only liable for the force as is excessive
o
Courvoisier v. Raymond
 Was shooter able to claim self-defense after shooting a police officer he thought was a
burglar? Yes. The jury instruction that the shooter was liable if he assaulted the police
officer was flawed because it failed to take into account the shooter's self-defense theory.
The circumstances surrounding the incident could lead a reasonable man to believe his life
was in danger, or that he was in danger of great bodily harm. Therefore, the shooter's
justification did not rest entirely upon proof of assault by the officer, but also on the intent
of the defendant.
 Law: Self-defense may constitute a defense to liability for intentional torts, even if the
actions taken by a defendant in self-defense result from a mistaken but reasonable belief
that the defendant is under attack.
 "The law has always placed a higher value upon human safety than upon mere rights in
property"
 This case leads to two questions regarding self-defense:
 Was there a tort?
 Was the tort justified based on the circumstances surrounding it?
 When applying this case to the case involving a bullied kid who attacked his bully with a baseball bat to stop him
from a future attack, Dean Meyers stated the law does allow physical limitations to be taken into account (here,
Jason's small size, age, and physical vulnerability), along with the fact that he is a child (being a minor is
considered). However, it only goes so far. When it comes to emotional/psychological, the law has drawn a line to
not take into account those details.
o
o
Instrumental Justice = Evaluates the available choices with the goal of using tort law as an
instrument to affect/optimize future decision making by people that would be socially optimal
Corrective Justice = thinks of tort law with different objective. Our goal ought to be to optimize
the justice as between the parties to this particular transaction
-3-
c.
d.
Defense of Property and the Privilege of Necessity:
o The defendant must prove that their property was in, or he believed it to be in, real danger, and
that he did not use excessive force in its defense (can only use deadly force if you reasonably
believe intruder was going to do so)
o Katko v. Briney
 Can a person use a "spring gun" to hurt a trespasser on their property? No. The defense of
property statute says you may only use deadly/harmful force to protect property if you are
protecting a life
 Louisiana Common Law from 1990s allowed the use deadly force (and even homicide)
against a person who you believe will use any form of force against the you in your dwelling
 Law: A person, in protecting his property, may not use force calculated to cause death or
serious bodily injury, except where there is also a threat to personal safety that justifies
self‑defense.
o
Ploof v. Putnam
 Is the defendant allowed to untie the Plaintiff’s boat from his dock if the plaintiff did so out
of necessity? No. When necessity exists, entries upon land and interferences with personal
property that would otherwise be trespass are sometimes justified.
 This idea negates the privileges of a homeowner, because did the property owner have
privilege? Yes. This usually means that the defendant would be able to use non-deadly force
to protect his property due to trespass, BUT the plaintiff was acting out of necessity which
overrules the defendant’s privilege of defense of property.
 Law: Necessity caused by an “act of God” or other disaster resulting in an inability to control
movements justifies entries upon land and interferences with personal property that would
otherwise have been trespasses.
o
Vincent v. Lake Erie Transportation Co.
 Is the Defendant liable for the damages to the plaintiff's property (dock) when the defendant
was acting under the privilege of private necessity to protect his property (boat)? Yes. The
Defendant saved its steamship at the expense of Plaintiff’s dock, and therefore, is
responsible for the damages caused. While they were allowed to tie the boat to the property
of the plaintiff, they are still liable for damages coming from it
 Law: A party who damages the property of another while acting out of private necessity
must compensate the property owner for the resulting damage.
Miscellaneous Privileges: Some privileges to inflict harmful contacts arise primarily out of the status of
the parties.
1) The most notable examples are the privileges that, at least to some extent, protect parents
and teachers from battery claims brought on behalf of children they have physically
disciplined. The common law justifications for the disciplinary privilege are diverse.
(Teachers, in essence, stand in loco parentis during school hours). Many courts in recent
years have partially or wholly abrogated the near absolute tort immunity of parents at
common law. While different courts have drawn the line in different places, a frequent
reform has been to allow minors to sue their parents for intentional torts (not arising from
an effort to impose reasonable discipline) but to continue to bar such claims if the injuries
complained of are due to the negligence of the parent.
2) Such privileges include those relating to the arrest of lawbreakers and the prevention of
crime, the enforcement of military orders, and the recapture of land and possessions. The
details of the rules vary, but they all tend to manifest a theme common to the privileges
discussed above. The reasonableness of the actor’s perception of the need to use force, as
well as the reasonableness of the harm actually inflicted, are typically the touchstones upon
which the availability of the privilege turns.
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B. Other Intentional Torts
1.
Assault:
 Elements:
o Intent to cause harmful or offensive contact or imminent apprehension of such a contact
o Such imminent apprehension occurs

Mere words do not constitute assault - there must be an accompanying act; There must be the apparent
ability to carry out the act: if a reasonable person would not think the actor capable of fulfilling the
threatened contact then there is no assault. (courts hesitant to apply eggshell plaintiff rule here, usually
works for IIED0
o Intent is established if a reasonable person is substantially certain that certain consequences will
result; intent is established whether or not he or she actually intends those consequences to result.
Pointing a gun at someone's head is substantially certain to result in apprehension for the victim.

§ 21 – if one intends to cause a harmful or offensive contact or intends an imminent apprehension of
such a contact to another person, and if the person is thereby put in such imminent apprehension (without
intent, only negligence or recklessness)

§ 29 – For one to be liable for an assault, he must put the other in apprehension of an imminent contact. An
act intended as a step toward the infliction of a future contact, which is so recognized by the other, does not
make the actor liable for assault.
o Apprehension = more than fear. More about expectation. Also doesn’t need to be capable of
happening as long as plaintiff thought it was (A points gun at B knowing it’s not loaded, but B
does not know this)

Read v. Coker
o Can a verbal threat, without an action, be considered an assault? No. The defendant must have
given a gesture or action towards carrying out the threat.
o There are two types of assault:
 Assault leading to a battery = The assault is an uncompleted battery. When a fist coming to
face, you see it, then his fist grazes your nose (assault and battery)
 Assault without a battery = The intentional scare which creates apprehension of imminent
battery in the face of the defendant. When a fist is coming at your face and you see it, but
he misses
o Law: A verbal threat, without a gesture or action towards carrying out the threat, is not an assault.

Beach v. Hancock
o By pulling a trigger twice of an unloaded gun, did the defendant commit an assault? Yes. The
defendant created an imminent apprehension in the mind of the plaintiff AND the fear was
reasonable
 The Court made sure to state "but it must be a reasonable fear of which we complain"
o Law: A verbal threat, without a gesture or action towards carrying out the threat, is not an assault.
2. False Imprisonment:
 Definition: when someone intentionally restrains another person’s ability to move
 False Imprisonment requires that:
(1) One commits an act intending to confine a person
(2) An actual confinement occurred
(3) The confined person must be aware or harmed by it
(if no intent, only negligence or recklessness)

Whittaker v. Sandford (yacht)
o When on a yacht, are you falsely imprisoned by not being allowed to use a smaller boat to get to
shore? Yes. The water acted as walls keeping her from exiting. This raises the question of what
constitutes boundaries – walls, water, people, etc. – in this case both the water and not wanting to
leave her children are considered boundaries
o Law: To be liable for false imprisonment, a party must demonstrate that they have been subject to
some manner of restraint, but not necessarily through the use of actual physical force by another.
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
Rougeau v. Firestone Tire & Rubber Co. (lawn mower theft)
o Two guards were instructed to keep the plaintiff in the guardhouse when he was suspected of
stealing lawn mowers. He was even allowed to leave when he fell ill less than 30 minutes into the
waiting. He sued for false imprisonment.
o Was the plaintiff falsely imprisoned by having two guards watch him for less than 30 minutes?
No. at no time was he totally restrained. Also, plaintiff never revealed to anyone that he did not
want to stay in the guardhouse, thus showing implied consent
o Law: The tort of false imprisonment is the intentional confinement of another within a specific
area and against his will.

Coblyn v. Kennedy's, Inc. (old man accused of theft)
o Case where 70-year-old man was suspected of stealing an ascot that he was wearing in a store. An
employee loomed over him, scaring him into agreeing to go upstairs to talk with the manager, who
assured he did not steal it. He suffered a heart attack.
o Did the facts show that there were reasonable grounds for the detention? No. By applying the
reasonably prudent man test, the court held that the evidence warranted the conclusion that the
store employee was not reasonably justified in believing that the customer was engaged in
shoplifting.
o Law: False imprisonment does not occur when a person is detained within the immediate vicinity
of a merchant’s premises if he is detained in a reasonable manner for not more than a reasonable
length of time, and if there are reasonable grounds, as measured by an objective standard, to
believe the person detained was committing or attempting to commit larceny of goods for sale on
the premises.

Sindle v. New York City Transit Auth'y (bus driver)
o Bus driver refused to stop the bus because the kids were vandalizing the back of the bus. She said
she was bringing them to the police station. Plaintiff got ready to jump from the window when the
driver hit a curb, and he fell out and was run over by the bus
o A bus driver is entrusted with the care of a child, just as a parent or teacher would be. The driver
has the duty to take reasonable measures for the safety of the students and public property. And
although confinement may be unlawful, jumping from a moving vehicle, absent compelling
reason, is negligence. Therefore, upon retrial, if the court finds that he acted unreasonably for his
own safety by placing himself in the window, recovery for bodily injuries would be barred.
o Law: A person entrusted with the care or supervision of a child may use a reasonably necessary
amount of force to maintain discipline or promote the welfare of the child.
3. Intentional Infliction of Emotional Distress:
 Includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, anger,
embarrassment, chagrin, disappointment, worry, and nausea. The adoption of this legal action was met
with reluctance at first, as it would lead to a wide vista of litigation in the field of bad manners
o § 46:
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily
harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress:
(a) to a member of such person's immediate family who is present at the time, whether
or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily
harm.

To successfully make IIED claim, must prove:
(1) Extreme and outrageous conduct by the defendant,
(2) Intentionally or recklessly
(3) Causes severe emotional distress

State Rubbish Collectors Association v. Siliznoff
o Siliznoff was given the job of picking up garbage for Acme. The previous person to have that
job got angry with him, claiming he owed him money for taking his account. They made
verbal threats to him. This led Siliznoff to become physically ill and vomit multiple times. He
-6-
o
o

eventually agreed to pay Abramoff through the association and to join the association. He
didn’t make the payments, so State Rubbish sued him. He claimed the notes were made under
duress.
Was the plaintiff liable for emotional damages caused to the defendant, even with no actual
physical harm? Yes. The defendant established a cause of action for IIED by showing that the
plaintiff intentionally threatened him, leading to mental suffering and harm to his physical
well-being, even though no real physical injury.
Law: In the absence of privilege, a party is liable for damages for intentionally subjecting
another to mental distress even without intending to cause bodily harm if the harm that results
was foreseeable.
White v. Monsanto Co.
o Plaintiff was employed by defendant. She was tasked with moving chemicals, so she had to
wait for gloves to arrive. Her boss yelled at her and a few others for not doing anything. The
tirade lasted about a minute. She had to be hospitalized and took time off work, then she sued
for IIED.
o Was the supervisor's one-minute outburst of such an extreme or outrageous nature as to give
rise to a cause of action for IIED? No. The vile language used was not so extreme or
outrageous. Such conduct, although crude, rough, and uncalled for, was not tortious and did
not give rise to a cause of action for damages. (insulting language not enough usually unless
special relationship or defendant knows plaintiff’s sensitivity)
o Law: The conduct must be so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable
in a civilized community. Liability does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.
II. HARM TO PROPERTY
(About pages 439-460)
1. Trespass and Nuisance:
a.
b.
c.
Trespass to land:
o Was originally a strict liability tort. No intent or culpability was required (ex: thorn case). Now it
requires more. Entry must be unauthorized and:
(a) intended by the defendant
(b) caused by the defendant's recklessness or negligence
(c) the result of defendant's carrying on an ultrahazardous activity
Nuisance: Can be either:
o Public = an unreasonable interference with a right common to the general public OR
o Private = a nontrespassory invasion of another's interest in the private use and enjoyment of land
Applications of the terms:
o Peters v. Archambault
 This case shows the rigidity and strictness of the traditional tort of trespass
 Defendant bought a property that the owner had built partly on an adjacent lot. The
plaintiff bought the adjacent lot, and after surveying his lot, realized the encroachment,
which was 20 years later.
 The court held that the defendant had to tear down his house because it was a trespass,
regardless of the cost it would entail
 Law: A landowner in Massachusetts is generally entitled to equitable relief to compel the
removal of an encroaching structure upon his land even if the encroachment is
unintentional and the cost of removal is substantial.
o
Davis v. Georgia-Pacific Corp
 Georgia Pacific operated a pulp and paper plant close to Davis and her husband’s
residence. The operation of the plant caused fumes, gases, smoke, and vibrations to
surround the house of the Davis’. The Davis’ home became uninhabitable as a result.
 Can a plaintiff seek damages for trespass by smoke, gas, and fumes? Yes. The Oregon
court expanded the definition of a trespass to include non-tangible objects such as smoke,
fumes, and gases. The court used a balancing test similar to one used in a nuisance suit,
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
o
where they weighed the efforts to prevent harm against the harm suffered by the
plaintiffs. The court determined that a balancing test can be used to determine whether a
type of intrusion is severe enough that it should be classified as a trespass. Here, the
combination of fumes, smoke, and gases probably led the court to conclude this type of
intrusion to be deemed a trespass.
Law: In Oregon, a plaintiff may seek damages for trespass based upon intrusions by nontangible objects onto property and such damages may not be determined by weighing the
utility of a defendant’s conduct against the harm suffered by the plaintiff.
Johnson v. Paynesville Farmers Union Coop. Oil Co.
 The plaintiffs owned organic fields next to non-organic fields. Paynesville sprayed
pesticides onto the fields near the plaintiff’s property and wind allegedly caused some of
the pesticides to drift onto their fields. This led to loss of profits for 3 years, loss of 10
acres worth of crops, and adverse health effects
 The court, however, held to the traditional meaning of trespass, unlike the court in Davis
 Law: When the invasion of a plaintiff’s land is committed by an intangible agency, such
as particulate matter, such invasion does not constitute trespass.
2. Trespass to Chattels and Conversion:

Restatement 2d of Torts § 217, 218, and 222A
§ 217: Ways of Committing Trespass to Chattels
A trespass to a chattel may be committed by intentionally
(a) dispossessing another of the chattel, or
(dispossess plaintiff of his right of possession)
(b) using or intermeddling with a chattel in the possession of another
(directly damaging plaintiff’s chattels)
(intentionally interfering with plaintiff’s right of possession in the chattel)
Don’t have to intentionally trespass, just have to intentionally interfere
§ 218: Liability to person in possession:
It further states that one who commits a trespass to a chattel is subject to liability to the possessor of
the chattel if, but only if,
(a) He dispossesses the other of the chattel, or
(b) The chattel is impaired as to its condition, quality, or value or
(c) The possessor is deprived of the use of the chattel for a substantial time, or
(d) Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the
possessor has a legally protected interest.
§ 222A: What Constitutes Conversion
(1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously
interferes with the right of another to control it that the actor may justly be required to pay the other
the full value of the chattel.
(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the
full value, the following factors are important:
(a) the extent and duration of the actor’s exercise of dominion or control;
(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
(c) the actor’s good faith;
(d) the extent and duration of the resulting interference with the other’s right of control;
(e) the harm done to the chattel;
(f) the inconvenience and expense caused to the other.
(intentionally interfering with chattel in such a serious way as to warrant the defendant to pay its
full value in damages)
-8-

In class example:
o Ex: Book is closed in front of A and B spills paint on the cover
 Trespass to chattel?
1. Was it a dispossession? No. he never dispossessed him
2. Was it an intermeddling with a chattel? Yes, probably, because it was impaired
to its value
 Conversion?
- Did B exercise control over the chattel by damaging it in the way he did? Maybe.
Depending on the way in which the paint was used
o But was the value of such that B is liable for the full value? No because it
was only poured on the cover
o Similar to a battery to a thing, but trespass to chattel is less protective
because there de minimum trespass does not count
III. NEGLIGENCE
A. Introduction
•
•
Definition: The creation of an unreasonable risk of harm to another
Brown v. Kendall – general negligence case. Brown and Kendall’s dogs began to fight each other. Kendall took
a long stick and began hitting the dogs to separate them. As the dogs began moving towards Kendall, he started
backing up towards Brown's back. Brown had also moved, but Kendall did not see this. Kendall raised his stick
again, and on his backswing, inadvertently hit Brown in the eye.
o Issue: Can a defendant be held liable for an injured plaintiff’s damages if the defendant acted with
lawful intent and without fault? = No. If an injured plaintiff seeks to recover from the defendant who
caused the injury, the plaintiff must show either that the defendant’s intention was unlawful or that the
defendant was not using ordinary care.
 Necessary = Defendant was obligated to do so OR it was discretionary
 Ordinary care = Same as reasonable care; to act as a reasonably prudent person would act in
your shoes
o Law: A defendant cannot be held liable for an injured plaintiff’s damages if the defendant acted with
lawful intent and without fault
•
Elements of Negligence:
(1) Duty: of care owed from Defendant to Plaintiff
(2) Breach of that duty: by defendant
(3) Causation: breach is actual and proximate case of…
(4) Harm/Injury: to plaintiff
B. Elements:
1. DUTY:

Does the defendant owe a duty of care to the plaintiff?
o Who is owed a duty of care?
 General rule = only foreseeable plaintiffs
 What about unforeseeable plaintiffs? (explained in more detail under proximate cause)
o
Cardozo: "Was it reasonably foreseeable to the defendant that the specific
plaintiff could be harmed by the defendant's conduct?"
 Plaintiff can only recover if she can establish that a reasonable person
would have foreseen a risk of injury to her in the circumstances, i.e.,
that she was located in a foreseeable “zone of danger.”
o
Andrews: "Was it reasonably foreseeable to the defendant that anyone could
be harmed by the defendant's conduct?"
 Defendant owes a duty of care to anyone who suffers injuries as a
proximate result of his breach of duty to someone.
 What about rescuers?
o No general duty to rescue…
 Unless some "special relationship" giving rise to the duty to act…
(1) Causation of Peril
o Tubbs v. Argus = Argus was driving Tubbs in his
car when he crashed the car. Argus did not render
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aid to Tubbs and left her at the scene. Tubbs sued
for negligence for not helping. Was there a duty to
act? The court says that if the defendant is the cause
of the plaintiff's peril (aggravated the injury), that
would be enough to trigger an obligation on the part
of the defendant to take reasonable care for the
protection of the injured plaintiff. This is regardless
of whether the defendant's act was negligently,
tortuously, or innocently.
o Side-note: Why didn’t Tubbs sue for the entire
damages (the crash itself)? Because Tubbs was a
nonpaying guest passenger, which is awarded a
lesser duty of care. Argus would have had to
wantonly injured Tubbs
(2) Enhancement of Peril
o "Voluntary undertaking" by the defendant
 Calling 911 is not enough
 Rhodes v. Illinois central Gulf Railroad =
Rhodes was seen unconscious in the
warming house of the train station. The
train conductor was repeatedly told by
passengers about it. He informed his
higher-ups many times but they took a
while to respond and miscommunication
was added on top of this. By the time the
authorities finally show, he was brought to
the hospital where he died.
 Premises liability theory = Jury
found no duty, so appellate had to
pretend worst-case by assuming
he was a trespasser to see if it was
at all possible for them to owe him
a duty of care. As a trespasser, the
court finds that the railroad did not
cause the injury and nothing on
their property caused it, therefore
premises liability did not apply.
He found his way on the premises
already injured
 Voluntary undertaking theory -needed to look for any action the
train station may have done to
render aid. Calling the police
alone did not count – one can limit
their undertaking to just calling
the police (would just discourage
people from reporting)
 Sum up: here, no duty was found.
However, duty may exist even without
landowner/trespasser distinctions or
without voluntary undertaking. The
defendant being a business (common
carrier specifically) may arguably give rise
to a special relationship if there was some
undertaking that put him in a worst place
(ex: if passenger was told that the train was
doing something about it = deterrence)
- 10 -
o
PLUS
(a) Reliance by victim
 Erie Railroad Co. v. Stewart =
Stewart was a passenger in a truck
when approaching a railroad
crossing. A watchman was usually
there to warn of oncoming trains,
but he was not there at the time. So
when they crossed, they were struck
by a train. No statute or custom
saying that a watchman was
required, so is there a duty and
breach? Yes. Court held that while
there was no statute governing Erie's
responsibility for providing a
watchman, they had created a wellestablished and expected practice of
doing so. Therefore, Stewart relied
on this expected practice when
crossing, and Erie breached its
voluntary duty. The plaintiff relied
on the defendant's usual conduct
(reliance is key)
OR
(b) Deterrence of other rescuers
 Lacey v. United States = noted the
good Samaritan statute which many
states have – that while common law
imposes no duty to rescue, it does
impose on the good Samaritan a
duty to act with due care once he has
undertaken rescue operations
(rationale = other would-be rescuers
will not rescue if one has already
began doing so)
(3) Induced dependency of victim on defendant
o Kline v. 1500 Massachusetts Ave. Apt. Corps =
Woman was robbed in hallway where other crimes
had been occurring recently. She sued her landlord
for not taking reasonable care for the safety of the
tenants. Had to go through the “rescuer” categories:
 Did he cause the harm? No.
 Did he enhance the peril by voluntarily
undertaking? No
 But there was still liability. The court
addresses a new category of special
relationships: “Induced dependency of
victim on defendant”
 Landlord had superior opportunity
to address the peril through his…
***(1) Exclusive control of the
common area (terms of lease gave
the landlord the control over the
common area, and the tenant
relied on his security) and (2)
Knowledge of the crime in the
area
- 11 -
o
What is the standard of care? (what type of duty of care is owed?)
 Baseline rule = must “act reasonably under the circumstances”
o Must act as a reasonable, ordinary, prudent man
o It is presumed that an ordinary, prudent, reasonable person will take
precautions against creating unreasonable risks of injury to other persons. No
duty is imposed on a person to take precautions against events that cannot
reasonably be foreseen

Special duty of care = if defendant has special relationship with the plaintiff; must look
to statutes and case law to determine if a special relationship exists
o Invitees – property owner is held to the baseline standard plus they have a duty
to make reasonable inspections to discover dangerous conditions and thereafter,
make them safe.
o Duty increases for common carriers
o Duty decreases for:
1) Licensees – A licensee is one who enters on the land with the
landowner’s permission, express or implied, for her own purpose or
business rather than for the landowner’s benefit (i.e. social guests)
 Owes a licensee a duty to warn of or make safe a dangerous
condition known to the owner or occupier that creates an
unreasonable risk of harm to the licensee and that the
licensee is unlikely to discover.
2) Trespassers – people who enter property without permission or
privilege. This category can be further broken up into known
trespassers,, child trespassers, constant trespassers. They get a little
more than other trespassers
 Usually owes no duty to undiscovered trespassers
 Usually owes duty to exercise ordinary care to warn the
trespasser of or to make safe artificial conditions known
to the landowner that involve a risk of death or serious
bodily harm and that the trespasser is unlikely to discover.
There is no duty owed for natural conditions and less
dangerous artificial conditions.
o Situations for different duties of care:
 Driver’s duty to passenger in car = passenger is an invitee = driver
only liable for gross or wanton and willful misconduct
 Children’s duty of care = a majority of courts take the view that a
child is required to conform to the standard of care of a child of like
age, education, intelligence, and experience.
o 3rd restatement adds that children "engaging in dangerous
activity that is characteristically undertaken by adults" are to
be judged by the standard of care applicable to adults, and
that children under the age of 5 are incapable of negligence
 Mentally handicapped = the courts still apply a reasonable person
standard
 Physically handicapped = judged accordingly (blind is judged
according to reasonable blind person)
 Professional (counselors/doctors/lawyers) = depends:
o J.A.W. v. Roberts (counselor) = Child was abused most of
his childhood by foster father. He sues multiple people who
knew of the abuse but failed to protect him from the abuse.
Two of those people are:
 His foster dad's sister – court held that she did not
have a special relationship with eh kid because they
never lived together and only talked at family
gatherings
 Marriage counselor -- JW confides in him about the
abuse. Court held not a special relationship because
he was a marriage counselor, not the kids’ counselor
o Tarasoff v. Regents (doctor)= Case where counselor did not
warn his patient's ex that the patient intended to kill her. He
- 12 -
o
ended up doing so. The court found that the therapist did
have a duty to warn the 3rd party and breached the duty when
he failed to do so. Foreseeable harm is not enough. So why
was the psychiatrist held liable when he foresaw a harm to
Tatiana? The psychiatrist has a: (1) Special skill in evaluating
the patient (can know when a threat is real), (2) Special
access to info, (3) Confidential relationship (doctor-patient)
which lets them divulge more info to them (access to more
divulging of information)
 While the other cases dealt with whether there is a
special relationship between defendant (who may
have a duty of care) and the plaintiff (who may be in
some peril), aka between the intervenor and the
victim, this one says that there is a special
relationship between the intervener and the
perpetrator (not the victim). This is because they
have special training and expertise to aid in helping
the 3rd party
 This case is followed by the majority but it leaves
the line drawing up to the courts to decide how far it
goes. Have been wary in extending it passed what
Tarasoff provides.
Lawyers are usually not held liable when a client shows he is
a danger to others generally (No one specific), but if he
proves to be a threat to the judge, then the lawyer does have a
duty. A lawyer-patient relationship is similar to that of
doctor-patient but also different because they do not have the
same expertise in evaluating them
2. BREACH OF DUTY:


Definition: Where the defendant’s conduct falls short of that level required by the applicable standard of
care owed to the plaintiff, she has breached her duty
BPL Test = formula that is used in determining whether a legal duty of care has been breached. It is used
to maximize economic efficiency
o United States v. Carroll Towing co. = established the BPL test. Case where a barge sunk when a
bargee was not aboard (gone for 21 hrs.). Dealt with whether the plaintiff was contributorily
negligent for their own harm. Judge Hand establishes a formula to decide whether the plaintiff was
negligent or was acting unreasonably under the circumstances; negligence =
Negligence = [Burden of precaution < probability of harm x gravity of the loss injury]
If B > P x L, then not liable for any of the damages

 The court applies the BPL test here: The probability of harm to the barge was high because
it was in a busy NY port especially due to WWII. The gravity of the loss will vary with the
time and place. In this case, same info as before is used -- NY Port was so crowded that
the gravity of harm is large. The burden of the bargee not being able to leave the barge
was weighed, and it was decided that the bargee must be on board during daylight hours
unless there was some excuse. This burden was small. Therefore, defendant breached his
duty
o Adams v. Bullock = Case where kid is electrocuted when a wire he is swinging hits a trolley's wire
that was below a pedestrian bridge. The court found that there was no evidence that Bullock
breached his duty. The court says they acted reasonably under the circumstances after applying the
BPL test. They said that probability was way too low (the foreseeability of this accident).
 **Also mentions that there is no special hazard at that location that was foreseeable. If that
one spot had a special hazard, then the probability would go up and that would cause
burden to go down because only that one location would need to be fixed.
o Exception: Sudden emergency doctrine - recognizes the appropriateness of a court instructing the
jury that they may choose to take into consideration the sudden emergency that affects a party.
- 13 -

Custom -- may be introduced to establish the standard of care in a given case. This shows that something is
reasonable or not reasonable because of what normal reasonable people do. But custom does not create a
test that is conclusive for controlling the question of whether certain conduct amounted to negligence
o Trimarco v. Klein = A party is liable for negligence when a custom or accepted practice is
coupled with proof that such custom or accepted practice was ignored and that this departure was
the proximate cause of one’s injuries. Trimarco was injured when a glass shower door shattered as
he was exiting. The glass was just ordinary glass, not shatter proof, which was usually installed. Is
a defendant's failure to follow an accepted custom or practice sufficient to show negligence if that
failure is the proximate cause of the plaintiff's injuries? Yes. Using shatter proof glass was an
accepted custom and it was the proximate cause of his injury. The failure to follow a custom is not
an absolute showing of negligence, but it is enough to allow a jury to decide.
o The TJ Hooper = One can still be liable for negligence even if custom is not all the way there yet.
A tugboat did not have a radio receiver, so they were not warned about an impending storm. Cargo
sank as a result and the owner of the cargo sued the operator of the boat for not having the proper
equipment. Can a business be held negligent for its failure to acquire and use readily available
technology even if such was not a custom? Yes. If the tugs had been properly equipped with a
reliable radio, they would have received the storm warnings and could have sheltered in the
harbor. Given the benefits of radios, a business using navigation likely cannot exercise reasonable
prudence without one. The fact that all ships do not have radios may indicate that the navigation
industry itself is lagging. However, this is no excuse for a lack of reasonable care

Violation of a safety statute
o Can be…
A. Negligence per se (negligent itself)  Martin
B. Prima facie evidence of negligence  Tedla
o Martin v. Herzog = Defendant was driving in the plaintiff's lane when turning, but the plaintiff did
not have their headlights on. The court held that the jury was required to consider contributory
negligence (it was not optional). In NY in this time, if plaintiff is even 1% negligent, cannot
recover. Instead of BPL approach (cost of buggy lights), the court applies a different approach.
They state that it must be a safety statute that is violated (meant for protection of human life).
Headlight statute is a safety statute. The court held that the statute violation was not some
evidence of negligence. It is negligence in itself. Therefore, embedded in the court's holding is a
series of limitation for how far this rule goes to establish negligence per se for a statute. Must be:
 A safety statute
 A person intended to be protected against
 A type of harm intended to be guarded against by the legislature
o Tedla v. Ellman = Plaintiff was walking with deaf/blind brother carrying junk. They walked with
the traffic instead of against traffic (on right side instead of left) because the other side was more
crowded. Statute: when walking, must walk facing traffic. When looking at the limitations for
negligence per se, it checks off all the elements. But the court held their violation of the safety
statute was not negligence per se, because a different standard should be applied. Prima Facie
should apply, because the fact of the safety statute is just evidence to the negligence. But the
plaintiff proved that it was safer to violate the statute
o Brown v. Shyne = case where the defendant was performing chiropractic treatments without a
license, and the plaintiff became paralyzed. The court held while the licensing may protect patients
from unlawful treatments, the licensing statute was not a safety statute. They said that there was
not a logical connection between licensing and harm. The lack of license was not the proximate
cause of the injury, the defendant's lack of care was. One may be licensed and hurt someone and
one may not be licensed and not hurt someone. To prove negligence, the plaintiff must show how
the lack of license directly caused her injury. But the court does mention that training and
education is relevant evidence
o Comparison of the cases:
stated that it must be a violation of safety statute (headlights), not just revenue
 Martin
statute (car registration). If the jury finds that the defendant violated the statute, the statute
is a safety statute, the person was intended to be protected, and the harm was intended to
be protected against, then the court MUST find that the defendant is contributorily
negligent
 Then Tedla said that while walking against traffic is a safety statute, it is a different kind
of safety statute than that in Martin.
Some safety statutes must be followed every time,
while others are meant to be violated sometimes if it would be safer to do so. The reason
the violation of the statute in Martin is negligent per se is because there is no reason it
- 14 -

would be safer to not use headlights. With walking against traffic, however, sometimes it
is safer to walk the other way. If defendant rebuts the statute by saying they were safer by
violating it, then jury has dispensing power to relieve the defendant of contributory
negligence (Allows for a broader array of excuses)
Then, Shyne said that there is no logical connection between the violation of the statute
and the injury that resulted.
Violation of a statute will only give rise to an action for
negligence if the violation itself is the proximate cause of any resulting injury. Not being
licensed did not cause her to become paralyzed, his carelessness did
Statute
Violation
Compliance
"Negligence per se"
(Martin)
"Some evidence"
(ex: going speed limit isn't always presumptive, as sometimes it is
more reasonable to go slower (snowing))
"Prima Facie" evidence
(Tedla)
Custom
"Some evidence"
(Trimarco)
"Some evidence"
(Sometimes the custom is not the best or safest way)
If:
(1) There is a safety statute
(2) The plaintiff is the class of person which the statute intends to protect
(3) The harm that occurs is the class of risk which the statute intends to protect
= then the majority of courts follow Cardozo in Martin and say that it is Negligence per se, (basically strict liability)
But some courts say that while the above is true, defendant can rebut by using an excuse such as:
1. Safer to violate statute than comply (Tedla)
2. Impossible to comply
 Compliance with the statute was rendered impossible
 By a sudden emergency
 That arose without the fault of the party asserting the excuse
 Because of circumstances over which the party asserting the excuse has no control
 The party asserting the excuse exercises such care as a reasonably prudent person could have
under the circumstance
= violation is only prima facie evidence of negligence
Online notes on “per se”: (in and of itself) An act or omission in violation of a statutory duty or obligation.
Negligence per se often arises where the tortfeasor both violates a criminal statute or ordinance and causes injury to
another party.
Plaintiff must prove that:
(1) the statute or ordinance clearly sets out what standard of conduct is expected, when it is expected,
and of whom it is expected,
(2) plaintiff is in the class of persons intended to be protected by the statute or ordinance, and
(3) the statute or ordinance was intended to prevent the type of injury which plaintiff suffered as a
result of defendant’s wrongful act

Res Ipsa Loquitor
o “The thing speaks for itself”  it allows a jury to infer that a defendant is negligent even without
proving that the defendant breached (Applicable when there is a gap in the story; doesn’t work for
multiple defendants)
o Plaintiff must establish that: (according to Boyer)
(1) the accident causing his injury is the type that would not normally occur unless
someone was negligent AND that
(2) the instrumentality that caused the injury was in the exclusive management and
control of the defendant
- 15 -
o
Boyer v. Iowa High School Athletic Association (gap in the facts and the theories of which lean
more towards negligence)
 The retractable bleachers closed on some of the spectators at a basketball game. The
court found that while there were other people there who could have caused it, the school
had enough control over the building and that bleachers don't usually collapse on its own.
Therefore, it allows the jury to infer that the defendant is negligent The court held that
there are 2 requirements for res ipsa to apply: (1) Accident is of the sort that doesn’t
ordinarily happen without someone being negligent. (2) That the instrumentality causing
harm to plaintiff was within the "exclusive management and control of the defendant"
 Just because you can think of a few ways in which an accident could occur without
negligence does not defeat res ipsa
o
Shutt v. Kaufmann's Inc. (no gap in the facts, so no res ipsa)
 Shoe rack falls on plaintiff when she sat down in a chair that bumped into it. The court
held that res ipsa did not apply in this case, because the plaintiff had access to info that
could prove the defendant was negligent. She could have proved the shoe rack was
unstable or that the chair was placed too close to the stand.
 Only applicable as a last resort.
o
City of Louisville v. Humphrey (gap in the facts, but the possible theories were not enough to
prove negligence under res ipsa)
 Case where drunk man was arrested. He was brought to the drunk tank where he had
fallen and was placed inside. He was brought to the hospital a few hours later but still
died. His wife sued for negligence and won on the basis of res ipsa. The city appealed
stating that res ipsa was applied wrong. On appeal, the court held that the injury could
have happened before being arrested, or even if it was after the arrest, it could have been
caused by an employee of the city, another prisoner, or himself. Therefore, res ipsa
should not have been applied. The prison could only be held liable if they were at fault,
and they were only at fault if they could prove that the prisoner was injured by a guard or
by another prisoner and the prison knew the other prisoner was dangerous (actual
knowledge of his violent propensities)
 Kind of applies the BPL test by saying the burden on the prison to supervise the prisoners
was too high when compared to the unlikelihood of the injured multiplied by the gravity
of harm (death)
o
Other real cases that have actually happened:
 Human toe found in chewing tobacco. Sued under res ipsa. Would this work? Yes (and it
did).
- Have they done all the research? Assume yes
- Does it ordinarily happen without negligence? Yes.
- Is the instrumentality causing harm in control of company? Yes.
- So YES
 Books vacation to Jamaica. She brings old navy sandals with her on the trip that were
never worn. Opens the bag and goes down escalator when the strap comes off and she
falls down the escalator. She sues old navy for negligence. Does res ipsa apply?
- Have they done all the research? Yes (the shoe was thrown away by the hotel
after the incident)
- Does it ordinarily happen without negligence? No (should not mess up first time
wearing it)
- Is the instrumentality causing harm in control of old navy? Yes (not in their
exclusive control, as she possessed it now, but in aggregate, old navy had the
most access to the instrumentality causing the harm
- So YES
- 16 -
3.
CAUSATION:

Two parts to the causation element, both of which must be satisfied for the plaintiff to establish causation:
(4) ACTUAL CAUSATION
 Cause in fact. Need to look at the chain of events

Test = "But for the defendant's conduct (breach of duty), would the plaintiff have
suffered the same harm anyway?"
o Ford v. Trident Fisheries Co. = Ford was thrown overboard while walking up the
stairs on the fishing vessel. The plaintiff alleged that Trident breached its duty. The
court held, however, that "but for the defendant having one rescue boat on board
and but for the boat being held by davits, would the plaintiff have drowned
anyway? Yes. therefore, no liability
o Hoyt v. Jeffers = Chimney of a sawmill had sparks that would escape often. Hotel
nearby caught fire -- sued for negligence. No direct evidence that the sparks
caused it, but past occurrences were allowed to be introduced, and therefore, with
that evidence, a jury could have found that the defendant caused the fire.
Circumstantial evidence is okay because it is ultimately up to the jury to decide
what they believe.
 The test question needs to be specific: "But for the hotel's negligence in
keeping of the chimney (no cover), would the hotel have burned down?"
the jury found the answer to be no. Reasonable sawmill owner would not
have built the chimney that high without a smoke catcher
o It seems like res ipsa would apply here but it would not. Here, defendant was
negligent in not having a cover on chimney, but the question was whether the
sparks caused the fire. Res ipsa deals with uncertainty as to how the defendant was
negligent.

When the “but for” test is inadequate:
1. "Loss of chance" - when person (usually patient but not always) already had bad
odds; courts can take one of 3 approaches: (3-way split)
 Traditional rule = no recovery
 This is the majority; don't hold doctor liable (cases above)
 Contradiction: Holton v. Memorial Hospital -- said that if a
doctor's negligence leads to worse odds for the patient, the
patient gets full recovery. But this outcome looks more like the
court applied the "relaxed causation" approach and reduced the
"substantial factor test" all the way down, but the court refused
to accept that it was using anything but the traditional rule
 "Relaxed causation" = uses the substantial factor test to award full
recovery/damages

Reduces the degree of probability that a plaintiff must prove.
Not clear exactly what % this means, but we do know that it is
something less than a probability that the doctor's negligence
was a causal link in the harm (up to jury discretion)
 Cahoon v. Cummings trial court = Cahoon was diagnosed with
esophageal cancer and died from it. His estate sued his
physicians for negligently failing to diagnose and treat it. The
experts found that had the patient been diagnosed and treated, he
would have had a 25-30% chance of survival
o "But for the doctor's breach of duty (not catching the
cancer), would the plaintiff have died anyway?" The
answer here is yes, however, he is still liable. The trial
court instructed the jury that Cahoon could recover if
the jury found that the physicians’ negligence was a
“substantial factor” in causing Cahoon’s death. Cahoon
was granted full damages.
 "Separate injury" = redefines legal "harm" as lost chance itself =
proportional recovery
 Cahoon v. Cummings appellate court = Conceives the legal
harm different from the other cases  what the patient lost was
the best odds of avoiding the outcome, not his life
- 17 -
o
o
o
o
If you apply the traditional "but for" test it does not
work. Instead of saying:
 "But for the doctor not catching the cancer,
would she have died?" -- probably yes
Should say:
 "But for the doctor not catching the doctor,
would she have lost his best chances of
survival?" -- no
The court held that in a medical malpractice case,
where a physician fails to use reasonable care and
increases the risk of harm, he can be held liable even if
he was not a substantial factor in causing the harm
Reasoning: Doctor owes reasonable care no matter
what odds the patient is facing
He was awarded proportional recovery to the lost
chance (receives 25-30% of the damages)
2.
Joint causation
 Uses the substantial factor test (plus joint and several liability) = 2
defendants cause an injury. Either one alone would have been able to
accomplish it, so the “but for” analysis does not work. Therefore, it is
sufficient if a defendant’s conduct was a substantial factor in causing the
injury
 Usual cases:
 2 defendants working in concert to commit the act
 Multiple defendants working independently yet producing an
indivisible injury (can't be sorted out),
 Hypothetical: where 2 fires are heading toward a plaintiff's home and
they converge and burn down the house. The "but for" test could allow
each to get away with it because the answer would be "no, the other
person's fire could have done it too"… therefore, the substantial factor
test is used whenever the "but for" test does not work due to multiple
defendants. Each were substantial factors in burning down the house, so
both are liable. In Cahoon, the cancer would have probably killed her
anyway but the doctor's negligence added to it, so he was liable
 Different ways to determine damages:
 Pro rata -- each pays a separate amount according to the number
of defendants; if one does not have $, the plaintiff just does not
get that part of the damages
 Proportional liability -- assign a ratio of culpability (used under
separate injury)
 Joint and several liability -- the plaintiff can collect full
damages from any of them (if one is bankrupt, the other pays the
full amount. If both equally well off, the plaintiff has the
flexibility to get it from whoever) -- best case scenario for
plaintiff but not the usual rule
3.
Alternative causation
 Two defendants contribute to an injury but only one was the substantial
factor in causing the injury. Therefore, the “but for” test works, but the
issue is that they cannot determine which defendant caused the substantial
injury.
 The plaintiff has the initial burden of proving that one of them caused the
injury, then the burden shifts to the defendants to determine which one
was the actual cause, but if they cannot do this, they are jointly and
severally liable
 Summers v. Tice
 Case where plaintiff was struck by both defendants when they
were hunting for quail -- he was struck in the lip and eye. The
- 18 -


4.
one to the eye was worse but they could not determine which
defendant caused which injury.
The court determined that while they did not coordinate the
shooting, they both shot the defendant (one of which causing a
serious injury). So why not joint causation?
o Joint causation is when both defendants have caused
serious harm to the plaintiff (actually have 2 tortfeasors
causing the same harm) -- cannot say that the harm
would have happened but for one of their conducts. But
here, the harm would not have occurred but for the
defendant shooting him in the lip.
Each have breached an identical duty to the plaintiff but only
one has actually caused harm to the plaintiff, the court shifts the
burden of proof to the defendants to prove which one of them
caused the harm (subject to joint and several liability)
Market share liability
 Allows a plaintiff recover from a group of product manufacturers for an
injury caused by a product, even when the plaintiff does not know from
which defendant the product originated.
 Holds all manufacturers of a product identical to the one that harmed the
plaintiff liable in shares proportional to their share of the market at the
time the plaintiff’s injury occurred.
 Two cases highlight this doctrine:
 Suffolk County Water Authority v. Dow Chemical
o Multiple defendants were using a chemical which
seeped into the groundwater
 State v. Exxon Mobil Corp
o Multiple oil companies were adding a chemical to the
oil which seeped into the ground water.
 In both case, the group of defendants are doing the same tortious thing,
and one or all of them are causing harm from it. However, the difficulty is
finding where the harm came from when there is a mixing and matching
of harms; diagram:
D1 D2. D3 D4. D5


P1 P2 P3 P4 P5
The doctrine says that if a plaintiff can bring into court at least a
substantial share of the market, then the innovation is that we will shift
the burden of proof on actual causation to the defendants to exonerate
themselves if they can, and otherwise for those who cannot exonerate
themselves are left responsible to each of the plaintiffs they cannot
exonerate themselves
The diagram shows that D1 and D3 did not cause any harm, but if they
cannot exonerate themselves, they will be held liable. If they cannot
exonerate themselves, they are liable proportional to their market share
- 19 -
TYPE
Loss of Chance
WHAT IS IT
1) Traditional rule = no recovery for loss of
chance. Must meet “but for” test. This means
that if physician was 51% liable for the harm,
and thus held 100% liable, or not at all
 This is the majority approach
INNOVATION
Lowers the burden of proof plaintiff must
prove and redefines what “harm” means.
Harm under 3) now = loss of chance itself
However, two minority rules may allow P to recover
from a defendant whose negligence caused the plaintiff
a reduced chance of receiving a better outcome.
2) Relaxed causation rule = can recover full
damages if P proves physician’s negligence
was a substantial factor in causing the
death/outcome (just know less than 50%)
3) Separate injury rule = can recover damages
proportional to harm caused if P proves that
physician’s negligence increased the harm/loss
of chance (physician diminished my odds of
avoiding the harm)
Joint Causation
Alternative Causation
Market Share Liability
Two acts which dependently cause indivisible harm, so
both are "but for" causes.
Joint and severally liable if each defendant was a
substantial factor in causing the harm
P shows that each of two Ds were negligent but only one
could have caused the accident. Court holds both liable
unless one can prove the other caused it
Joint and severally liable if defendant cannot show who
caused the harm
Allows P to establish a prima facie case against a group
of product manufacturers for an injury caused by a
product, even when the plaintiff does not know from
which defendant the product originated.
Can recover damages proportional to their market share
if they cannot exonerate themselves from each plaintiff
- 20 -
Substantial factor test
Burden of proof shifts to D
Burden of proof shifts to D
(5) PROXIMATE CAUSATION
 Legal cause; it limits liability; deals with foreseeability

As a matter of policy, which actors in actual-causal chain should be held legally
responsible? (basically who ought to pay?)
 The act must be close enough to a harm in a "chain of events" to be legally valid.

Palsgraf v. Long Island Railroad = Case where 2 men were trying to jump onto a train
when a guard pushed one of the men and he drops a package which makes a scale come
loose which injures the plaintiff on the other end of the platform. The court finds that the
guard may have been negligent to the man with the fireworks but was not negligent to the
plaintiff who was way away from them. And that even if the guard would have purposely
thrown the fireworks with the knowledge that it contained fireworks, he still would not be
negligent to plaintiff because it was not foreseeable
o This is because liability is personal between a particular defendant and a particular
plaintiff. Plaintiff has the burden to show that defendant's conduct was wrong to
her not just society as a whole. There had to be a breach of a duty owed to her
personally. (rationale: should not be held liable for every harm you cause).
o So why wasn’t the railroad responsible for her injuries then since she was a paying
customer? The whole notion of "licensees and invitees" shows the standard of care
owed by a defendant to a plaintiff. But before one can even get to the standard of
care owed, there has to be a duty of care owed -- explained below:
o
Cardozo says: "The scope of legal duty owed is defined by the scope of the
reasonably foreseeable harm"
 Must be foreseeable that my conduct can harm the specific plaintiff.
Therefore, she never even got through the gates. The railroad did not owe
a duty to her in that moment so they could not have breached the duty
 He says that she lost her case on the first element of negligence (duty)-- it
wasn’t foreseeable that the negligent conduct of defendant (helping guy
on train) would cause Palsgraf to be harmed by the falling scales.
Therefore it owed no duty to her. (duty decided by judge)
 Whether a specific defendant owes a duty to a specific plaintiff depends
upon this orbit of danger (or whether or not it was reasonably foreseeable
to the defendant) at the time it was doing the tortious/negligent act that
the plaintiff could be harmed.
 One can only be forced to pay for actually causing an injury (even if one
definitely did) if one could have reasonably foreseen the harm –
expressed as a rule of duty
 He says NOTHING** about his view on proximate causation. It dies at
duty.
o
Andrews’ dissent: “Was it reasonably foreseeable to the defendant that anyone
could be harmed by the defendant’s conduct?”
 Said this case was not about duty; It was about proximate causation.
 Also says that Cardozo took the duty question too broadly. Says if I am a
defendant and I’m about to commit an act, if it is reasonably foreseeable
to me that any other person could be harmed by my contact, then I owe a
duty to whoever may be harmed by it = LIMITLESS LIABILITY
 He places the case in proximate cause – says he sees from a policy
standpoint that his idea about duty looks broad, but says that we don’t
have to stop all cases at duty element that look like the defendant should
not be held liable, they can get caught by proximate cause (proximate
cause is the policy backstop)
 Says: yes, defendant owed a duty and yes, defendant did breach that duty,
and yes the defendant did actually cause the duty, but the issue is
proximate cause.
 Up to the jury to decide if the defendant should pay for the injury – it is a
policy judgement (no logic involved, pure practical politics). But this is
all done under proximate cause (not screened out in the duty element)
- 21 -

In deciding which approach to side with, courts go both ways. Cardozo’s was the majority
for a long time, but Andrews’ theory is gaining strength more recently.
o Herrera v. Quality Pontiac (NM 2003) -- said could be foreseeable
 Car is stolen by 3rd party from defendant's lot and crashes into plaintiff.
 They chose Cardozo’s approach --- was it reasonably foreseeable to the
defendant at the time of their negligent conduct that this particular
plaintiff could be harmed by the negligent conduct? They said yes. the
case was remanded to decide proximate cause, but the court noted that the
wrongdoing and injury were very separate -- separated by harm and space
(separate day), but it is up to the jury to decide
o
Rodriguez v. Del Sol Shopping Center (NM 2014)
 Car crashed into building, injuring shoppers. Trial court held that there
was no duty of care owed because the harm was not foreseeable, so no
liability. Appellate court affirmed. New Mexico supreme court reversed,
rejecting the Cardozo approach and taking Andrews' theory
 They held that foreseeability of harm is not relevant to whether a duty is
owed, because foreseeability is for the jury to decide. Duty is not factdependent. They said that foreseeability is only relevant with respect to
breach of duty – whether someone has acted reasonably under the
circumstances (higher foreseeability of risk of harm needs more care) and
for proximate cause
o
Marshall v. Nugent -- said foreseeable
 Defendant 1 drifted into the plaintiff's lane causing a crash. The car crash
caused the plaintiff and defendant 1 to pull over on side of road. Plaintiff
walked around the curve in the road to warn other cars, and defendant 2
hit him. He filed a complaint against both defendants. Trial court found
defendant 1 liable but not defendant 2. Went through whole analysis:
 Duty of Care: Did the truck driver owe a duty of care to the plaintiff?
 Cardozo - was it reasonably foreseeable at the time the
defendant 1 drifted into the plaintiff's side of the road that the
plaintiff would be injured?
o Before injury, (at time of negligence) who was in the
foreseeable orbit of danger? The plaintiff. Therefore,
yes, it was foreseeable that the plaintiff could be
harmed somehow with the defendant's negligent
conduct
 Andrews - was it reasonably foreseeable at the time the
defendant drifted in the plaintiffs lane that anyone could be
harmed? Yes.
 Breach of duty: not addressed, but obviously yes by drifting into lane
 Causation:
 Actual cause: "but for the defendant drifting into the plaintiff's
lane, would the plaintiff had been injured?" No.
 Proximate cause: the court held that it is up to the jury to decide.
While the defendant 1 did not hit the plaintiff, he did cause the
plaintiff to be on the side of the roadway at that time.
o Liability will extend (proximate causation can be
found) for harms that result from the operation of harm,
the foreseeability of which rendered the defendants
conduct negligent in the first place
o For prox. cause to be found, it focuses on the
foreseeability of the harm suffered by the plaintiff (this
goes to help attenuating circumstance cases such as the
one below -- had the plaintiff reached a position of
apparent safety (no longer in harm), then the accident
happens, defendant is not liable for the second accident)
- 22 -

o
Different facts: if instead they got back in their cars and drove up the road and
then got in a wreck with defendant 2 10 miles up ahead
 Actual cause? "but for the defendant 1 drifting into road, would the
second crash had happened?" could say no because they were delayed
 Proximate cause though? Depends on "position of apparent safety"
 If plaintiff has reached a position of apparent safety, defendant
no longer liable for harm
 If the harm actually suffered was one of the anticipated harms
that could have been foreseen by the negligent defendant though,
then it is okay to hold liable
o
Different facts: if when plaintiff is walked up road, he is stung by killer bees
 Actual cause: "but for.." would work because he wouldn’t be on the
roadway without the car accident
 Proximate cause: would not work because the bee incident was so
freakish, it was not foreseeable from the defendant drifting over the lane
o
Watson v. Kentucky & Indiana Bridge (supp.) -- said foreseeable
 Tanker of gas spilled gasoline. Duerr flips a match into the gasoline,
causing it to explode and burn down plaintiff's harm. What effect does
Duerr's intervention (3rd party) have on the chain of proximate causation?
1) Intervening cause
 Mere existence of the link between the defendant's
negligent conduct and the plaintiff's injury doesn’t
automatically preclude recovery -- depends on if
foreseeable -- if it is unforeseeable, then it is merely an
intervening cause, does not severe the causal chain
2) Superseding cause
 Aka "efficient cause" - intervening cause that severs the
causal chain
 So is Duerr's conduct intervening or superseding?
Depends on why Duerr flipped the match
 If accident (unaware of gas) -- then foreseeable, so
defendant is liable (chain of causal activity is not severed)
 If on purpose (aware of gas) -- then unforeseeable, so
defendant not liable (chain of casual activity is severed)
 Watson found that if it were intentional, then it would be
not foreseeable
 Whenever there is a chain of events, can apply this issue of proximate
causation (was it intervening or superseding?)
o
Stahlecker v. Ford Motor Co. = case where girl is killed on side of the road after
tire failed. Parents sued, claiming the defendant withheld the fact that the tire was
defective. Court found the defendant not liable.
 Also, like Herrera, there was a criminal act by a 3rd party, so they
addressed the question of “Can an original wrongdoer be held liable for
harm caused by a criminal actor if the negligence preceded the act?”
 These 2 don’t treat it as a bright line "criminal act is always
unforeseeable" like in Watson. These 2 cases are newer. Instead, Herrera
said that it is up to the jury to decide, but that they could find that a car
crash was foreseeable from leaving keys in a car
o
On exam, it will say "if no jurisdiction given, explain the split from both sides)
The way we have defined actual and proximate causation here applies to any context of
Tort NOT just negligence. Also for intentional torts and strict liability (not as prominent in
intentional torts (because battery obviously comes from someone touching you, but
sometimes it can be needed (like in Vosburg -- just didn’t cover it when we had the case).
**Only bring up cause for intentional torts if the facts allow an argument
- 23 -

FORESEEABILITY: (overview)
Foreseeability arises in duty, beach, and proximate causation but in different ways: (accord.
To Cardozo)
1. Duty = foreseeability of the harm (any) to the plaintiff ("foreseeable plaintiff
rule")
 Was it reasonably foreseeable to the defendant at the time of the
defendant's negligent conduct that the specific plaintiff could be harmed?
2.
Breach = using BPL --> foreseeability of the probability (risk) and gravity of
any harms to anyone
 Asking what would a reasonable person do? Reasonable person would
invest in safety precaution IF the cost of it is less than the probability/risk
and gravity of possible harms
 Ex: Burden of going slower vs. what could go wrong if I go faster (not
risk of hitting kid, because don’t know that yet. Just asking risk of harm
to anyone compared to if you had taken safety precaution)
3.
Causation = If harm alleged was actually and proximately caused by the breach
of duty
 Actual = "but for…" if no, then established actual cause (no
foreseeability involved)
 Proximate = was the breach of duty sufficiently (not historically like in
actual cause) connected with the injury that we all feel the defendant got
what he deserved
 Marshall -- foreseeability of the specific harm actually suffered
by the plaintiff. Considerations:
o The type of harm/injury suffered by the plaintiff
o Intervening causes separating wrongdoing from harm
(need to determine if merely intervening causes (so
foreseeable) or if they are superseding then they
become unforeseeable)
o "position of apparent safety"
o BUT cf. eggshell plaintiff rule -- defendant need not be
able to foresee extent of plaintiff's harm**
**Eggshell plaintiff rule -- is not a rule of liability. It is a rule of scope of damages (not
whether there is a tort).
In Vosburg, the court found that injury to the leg is a foreseeable type of harm
coming from intentionally kicking someone in the leg. Then they discovered that
while harm was foreseeable, the extent actually suffered was not foreseeable.
However, for liability, only need to establish foreseeability of type of harm, so
on the hook for the full extent of damages
Proximate cause deals with type of harm, eggshell plaintiff rule deals with
extent of harm
- 24 -
DUTY
CARDOZO
Foreseeability of the harm (any) to the plaintiff ("foreseeable plaintiff
rule")
 Was it reasonably foreseeable to the defendant at the time of
the defendant's negligent conduct that the specific plaintiff
could be harmed in any way?
BREACH
Using BPL --> foreseeability of the probability (risk) and gravity of
any harms to anyone
 Asking what would a reasonable person do? Reasonable
person would invest in safety precaution IF the cost of it is
less than the probability/risk and gravity of possible harms
 Ex: Burden of going slower vs. what could go wrong if I go
faster (not risk of hitting kid, because don’t know that yet.
Just asking risk of harm to anyone compared to if you had
taken safety precaution)
CAUSATION
If harm alleged was actually and proximately caused by the breach of
duty
 Actual = "but for…" if no, then established actual cause (no
foreseeability involved)
 Proximate = was the breach of duty sufficiently (not
historically like in actual cause) connected with the injury
that we all feel the defendant got what he deserved
o Marshall -- foreseeability of the specific harm
actually suffered by the plaintiff. Considerations:
 The type of harm/injury suffered by the
plaintiff
 Intervening causes separating wrongdoing
from harm (need to determine if merely
intervening causes (so foreseeable) or if
they are superseding then they become
unforeseeable)
 "position of apparent safety"
 BUT cf. eggshell plaintiff rule -- defendant
need not be able to foresee extent of
plaintiff's harm**
ANDREWS
"Was it reasonably foreseeable to the
defendant that anyone could be
harmed by the defendant's conduct?"
 Defendant owes a duty of
care to anyone who suffers
injuries as a proximate
result of his breach of duty
to someone.
“ ”
“
“
”
”
C. Negligence Defenses
1. Contributory negligence
 General standard of care = same as that for ordinary negligence
o Never a defense for intentional or willful/wanton misconduct
 Complete bar on liability (Butterfield)
o UNLESS: defendant had the "last clear chance" (Davies)
 Had opportunity after the plaintiff's negligence to avoid it but didn’t -- complete
recovery if defendant had last clear chance
 It permits the plaintiff to recover despite his own contributory negligence. Under this
rule, the person with the last clear chance to avoid an accident who fails to do so is
liable for negligence. (In effect, last clear chance is plaintiff’s rebuttal against the
defense of contributory negligence.)
 Butterfield v. Forrester (complete bar on recovery)
o Defendant created a risk by placing a pole in the road. Plaintiff was riding his horse violently. The
court held that had the plaintiff been using ordinary care, the plaintiff would not have been injured
o They find that the plaintiff cannot recover at all because he was negligent to his own safety -complete bar on any recovery.
- 25 -
o

Hypothetical: If plaintiff had fallen onto 3rd party, could defendant evade liability? To evade liability to
3rd party, use proximate cause -- say though defendant was liable, there was an intervening cause that came
along that caused the injury. If the intervening cause was unforeseeable, then it would be superseding, and
all responsibility would be cutoff from the defendant

Davies v. Mann (last clear chance)
o Opposite facts of Butterfield: Plaintiff left his horse on side of road (obstructed road), and defendant
crashes (at a smartish pace). Plaintiff sues defendant for killing his horse, but defendant claims
plaintiff was negligent for leaving horse in roadway. Plaintiff and defendant were both clearly
negligent
o Outcome is different this time though: the court allows for the possibility that the plaintiff, though
negligent, can indeed recover for the killing of the donkey by riding down the road too fast
o Court uses the last clear chance doctrine as an exception to the usual contributory negligence theory
that if plaintiff was in anyway negligent, can't recover -- this one now allows complete recovery
o The doctrine is broken into inattentive and helpless
There is an on/off switch -- either completely liable or not liable at all. In Butterfield, defendant was not
liable at all because plaintiff contributed to his own harm. In Davies, defendant was completely liable
because he had the last clear chance to avoid it but did not
Other notes from BARBRI:
o Rescuers helping in emergency situation are sometimes not liable for contributory negligence; may be
contributorily negligent to not remove oneself from danger
o May be found contrib. negligent by violating statute
o Contributory negligence is ordinarily a defense to negligence proved by defendant’s violation of an
applicable statute. But where the defendant’s negligence arose from violation of a statute designed to
protect this particular class of plaintiffs, plaintiff’s contributory negligence is not a defense (ex: child
darting across street is struck by person speeding. The driver can’t claim the child is contributorily
negligent because the child was supposed to be protected by the statute)


2.
This analysis is the same used for finding defendant negligent:
 Needs duty of care to their own wellbeing
 Breach of that duty
 BPL test: Safety precaution = could have slowed down, not get drunk, etc.; risk
of being hurt pretty high; cost of safety precaution not high
 Safety statutes = against impaired horse driving
 Causation
Assumption of the risk
 The plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant’s acts.
This assumption may be expressed or implied. To have assumed risk, either expressly or impliedly, the
plaintiff must have known of the risk and voluntarily assumed it. It is irrelevant that plaintiff’s choice is
unreasonable
o Defendant must have known the risk, understood the nature of it, and voluntarily accepted it
o Again, not a defense to intentional torts
 Hennessey v. Pyne = Hennessey was hit by golf ball when in her garden. Defendant claimed that plaintiff
had assumed the risk by living near the golf course
o First establish if prima facie case is there:
 Did Pyne have a duty of care? Yes, although he could not see her, a golfer owes a duty
of care to persons living near a golf course that are known to be within striking distance
 Breach? BPL = Reasonable golfer would've yelled fore, or maybe reasonable golfer
would not have hit the ball at all if so close to the house; OR safety statute
 Causation?
o Actual causation = depends on which breach was used: "but for the
defendant not yelling fore, she would not have been hit" or "but for the
defendant hitting the ball, she would not have been hit"
o Proximate causation = foreseeability of type of harm (her getting hit was
foreseeable from her house being hit multiple times before). No intervening
causes. Defendant did not reach position of apparent safety. No real time
separating the act from the harm.
Overall answer: the negligence was sufficiently connected to her harm
- 26 -

Hypothetical: Pyne hit golf ball which hit dog, causing dog to bite her. Does this change
the analysis? Actual causation is there but is proximate causation there? The dog is at
least an intervening cause.
o Now 2 harms: property damage (hitting dog) and injury (dog bite)
o If found that dog bite was unforeseeable, then the dog bite was a
superseding cause and defendant not liable. But probably still liable for the
property damage because it is foreseeable that property could be harmed
(mere probability that house could get hit would be enough to show dog
could get hit, doesn’t have to know exactly which property) BUT both are
ultimately up to jury to decide since only need preponderance of the
evidence

Hypothetical: now golfer hit golfball at lady, she is taken by ambulance to hospital. Then
drunk driver hits the ambulance. Actual cause is clear (but for) but is there proximate
cause? Depends on if the drunk driver is an intervening cause (reasonably foreseeable) or
a superseding cause (unforeseeable).
o Reasonably foreseeable isn't asking what usually happens or what they
expect to happen. It asks: "can we anticipate the possibility of it happening."
Must imagine all the possible harms that could come from it (can take into
account the location of the accident to decide if foreseeable -- if middle of
nowhere not as likely)
o In Herrera, the court said that the jury could rationally conclude that a crash
could come from the risk of leaving keys in ignition
o ** Being in ambulance, has she reached position of apparent safety? This is
a difficult question. Basically asks: with all the stuff that was kicked up
because of the negligence, has it subsided back to normal levels yet?
(baseline risks must go back to 0)
o Here, she is not out of the woods with the injury yet even though she
probably won’t be hit by another golfball (accidents on way to hospital,
possibility of getting infection at hospital = all caused by defendant's actions
because she wouldn’t be in that position if not for his actions). But is
probably up to jury to decide (but he believes she is not in position of safety
yet)
If instead, it is a terrorist driving a truck bomb who intentionally drives through
intersection and hits the ambulance, is it foreseeable? Under Herrera, Stahlecker, and
Watson, they hint that intentional illegal acts may not be foreseeable, but this is not a
straightforward rule
o If just at wrong place at wrong time, can’t really hold defendant liable (if so
improbable that it is not really foreseeable)


Now to issue of assumption of risk:
o Definition = Saw the risk, understood nature of it, and voluntarily accepted it
o 2 defects in assumption of risk argument:
 Her knowing the nature of the risk -- while she knows that there is a general risk of
getting hit, that's not enough. Has to be knowledge of a specific risk and appreciate the
quality of that risk. On that day, she had to not only know the risk of golf balls raining on
her house, but that in that moment, she was at a realistic risk of a ball hitting her right
then --> only had general risk
 Her voluntarily accepted the risk --they say that this was not met either. She cannot be
forced to surrender her house or stay in her house just because she knows she could get
hit --> didn’t have easy way to avoid that risk
o Different facts: More for situations where person sees pothole and tries to jump over it but falls in
and gets hurt. In that case, the person knew the risk and voluntarily accepted that risk. --> had
more than general knowledge and had easy way to avoid the risk (go around it)
- 27 -
3.
Comparative negligence
 Most states now permit a contributorily negligent plaintiff to recover a percentage of his damages under
some type of comparative negligence system. In every case where contributory negligence is shown, the
trier of fact weighs plaintiff’s negligence against that of defendant and reduces plaintiff’s damages
accordingly
 From book
o Pure comparative fault -- plaintiff's recovery is reduced but never eliminated solely because of
plaintiff's negligence (can be 80/20 or 60/40 or 50/50. Either, way plaintiff recovers something)
o Modified (partial) comparative fault -- under both approaches, if plaintiff's negligence has not
reached cut off point the recovery is reduced proportionally
A. If the plaintiff's negligence equals or exceeds that of the defendant, cannot recovery at all.
(plaintiff’s negligence must be LESS than defendant’s))
B. Plaintiff's negligence bars recovery only if it exceeds that of the defendant (plaintiff’s
negligence must be EQUAL TO or LESS than defendant’s)
 On BARBRI: Last clear chance not used in most comparative jurisdictions. Most comparative states have
abolished implied assumption of the risk. Also, will consider plaintiff’s negligence even if defendant’s was
willful or wanton
IV. STRICT LIABILITY
A. Generally:




Liable even without bad state of mind. Unlike the other torts:
o Intentional torts = jury looks at the defendant's subjective state of mind
o Negligence = whether or not a reasonable person would have taken those risks that the defendant did
(objective)
o Strict liability = No determinization of fault (no subjective or objective view, no intention or fault)
Elements: (barbri)
1. Show that defendant did something inherently dangerous and unreasonable (nature of the defendant’s
activity imposes an absolute duty to make safe)
2. The dangerous aspect of the activity is the actual and proximate cause of the plaintiff’s injury; and
3. The plaintiff suffered damage to person or property.
Common law started out strict liability- based (remember old trespass laws), but went away from that. Now, there
are only pockets of activity that are deemed strict liability activities (owning certain animals, doing certain
dangerous acts)
Defenses:
o Contributory negligence = not regarded as a defense for strict liability torts unless a plaintiff has knowingly
assumed some level of unreasonable risk.
o Assumption of the risk = The plaintiff knew of and voluntary assumed the risks associated with an abnormally
dangerous activity or a product, such as taking a medication while knowing about the side effects. In other
words, the plaintiff consented to being harmed by the defendant. If they engage in an ultra-hazardous activity,
they may be barred from receiving any money from the defendant.
o Comparative negligence = If the plaintiff is involved in causing their own harm, the court will reduce the
amount of damages awarded to the plaintiff in accordance with the percentage of harm that was self-inflicted.
This would likely be the case where a plaintiff deliberately crossed a street when they were not supposed to
and were subsequently hit by a car going 15 miles over the speed limit because the plaintiff was partly
responsible for putting themselves into the position where they were injured.
B. Animals: (online)
1. Strict liability for owners and keepers of wild animals that cause harm even though the possessor has exercised
the utmost care
 Magnitude of risk outweighs social utility
2. A possessor of a wild animal is subject to liability to another for harm that results from a dangerous propensity
that is characteristic of wild animals of that particular class
 “Lazy Lion” limitation – if a lazy lion escapes and falls asleep on the sidewalk and a person walking
by trips over him, no liability
o Injury must be related to something that makes the animal dangerous
1. ie strict liability if a person trips and falls when running away in fear from the very
sight of a lion
2. Negligence principle could apply if possessor knows lion to be lazy
- 28 -
3. Exception – public zoos
a. Theory of social utility thus zookeepers only liable for negligence
a. Private zoos for profit are liable because of minimal/no social benefit
o
Trespassing of animals
 The owner is strictly liable for the damage done by the trespass of his animals (other than household pets)
as long as it was reasonably foreseeable.
o
Personal Injuries from…
 Wild Animals—Strict Liability
o The owner is strictly liable for injuries caused by wild animals (e.g., lion or bear), even those kept
as pets.
 Domestic Animals—Knowledge Required
o The owner of a domestic animal (including farm animals) is not strictly liable for injuries it
causes. Such liability does, however, attach if the owner has knowledge of that particular animal’s
dangerous propensities (i.e., propensities more dangerous than normal for that species). This rule
applies even if the animal has never actually injured anyone. Some states have “dog bite” statutes,
applicable only to dogs, which impose strict liability in personal injury actions even without prior
knowledge of dangerous characteristics.
 Persons Protected
o Licensees and Invitees—Landowner Strictly Liable
Strict liability for injuries inflicted by wild animals or abnormally dangerous domestic
animals kept by the landowner on his land will usually be imposed where the person injured
came onto the land as an invitee or licensee.
 Public Duty Exception An exception is recognized where the landowner is under a
public duty to keep the animals (e.g., as a public zookeeper); in such cases,
negligence must be shown.
o Trespassers Must Prove Negligence
Strict liability in such cases generally is not imposed in favor of undiscovered trespassers
against landowners. Trespassers cannot recover for injuries inflicted by the landowner’s wild
animals or abnormally dangerous domestic animals in the absence of negligence, e.g., as
where the landowner knows that trespassers are on the land and fails to warn them of the
animal.
C. Abnormally Dangerous Activities:
o An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm to person
or property even when reasonable care is exercised. Whether an activity is abnormally dangerous is a question of
law that the court can decide on a motion for directed verdict.
o Abnormally Dangerous Activities: Some activities are so inherently dangerous that they give rise to liability without
regard to fault because the activity:
(1) involves serious potential harm to persons or property;
(2) involves a high degree of risk that cannot be completely guarded against by the exercise of reasonable
care; or
(3)is not commonly performed in the community or under the circumstances.
o Rylands v. Fletcher = defendant was building a reservoir but after being completed, the water broke through and
flooded the plaintiff’s coal mine. “If a person for his own purpose brings on his land and collects and keeps there
anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie
answerable for all the damage which is natural consequence of its escape. Same analogy as those who keep
dangerous animals
 Brings up comparison between the reservoir and traffic accidents: In collision, have to show fault
(negligence or intentional), but no liability just for harm coming from engaging in traffic. Does this mean
traffic accidents are considered assumption of the risk? Assumption of the risk only applies where the
plaintiff sees the risk, appreciates its unreasonable quality, and voluntarily chooses to encounter the risk.
Here, people merely know that general traffic accidents could occur, but they meet the narrower
requirements
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
In contrast:
 Turner v. big lake oil co.
 Says Rylands doesn’t apply in west Texas because doing so in Texas is normal (so dry)
 Reason for bringing the unnatural thing on property is important -- in Rylands it was not
custom, but here, it was, so no strict liability
Siegler v. Kuhlman
 Now this case involves a traffic accident, but does strict liability apply? Yes. defendant driving gasoline
when the trailer comes loose and is catapulted off the freeway. Then plaintiff runs into it and dies. Lower
court mentions res ipsa and strict liability, and the judge refused to instruct the jury on either of those
theories, and instead, went to jury on this 3rd theory which the jury used to find defendant not liable
(probably some theory of negligence)
The court finds that res ipsa should have been instructed. 2 elements:

1. Instrumentality of harm in exclusive control of defendant (could've been either the gasoline,
the trailer hitch, or whatever caused the spark)
2. Accident doesn’t normally occur without negligence
 Strict liability:
 Concludes that it should be applied. Hauling the gasoline was different from ordinary traffic on
the highway. Yes almost every driver has gasoline, but not everyone has that volume
 Was the item unnatural;? Yes. when have a dog, most other people share the same risk, so there is
a reciprocal risk. When you own a bear, you assume a one-sided risk. When you drive car on
highway, you create a reciprocated risk, but when drive tanker truck, you create a one-sided risk
 Concurrence says that what if someone else negligently ran into the tanker truck though? Would
he still be held strictly liable? Maybe it could be avoided by claiming the negligent driver was an
intervening cause (causation still applies to strict liability cases just as it does in negligent cases -if own coyote and it harms someone, only liable if your ownership of the coyote caused the harm
and was proximately caused by it)
 Proximate causation would turn on whether the intervening cause was reasonably
foreseeable (which would mean it was a superseding cause)
 Comparative negligence is defense to liability, it is not a theory of liability (same as
assumption of risk) -- only when plaintiffs negligence is comparable to the defendant's
negligence
o
o
o
Toms v. Calvary Assembly of God
 Found that the discharging of fireworks is not subject to strict liability, only liable under fault-based
liabilities
 They apply the restatement (multi-factor test) same as in Siegler. They go through the restatement
factors and notably comes to the conclusion that every single factor disfavors strict liability. The
activity was permitted within the conditions set by the authorities, so because the authorities approved
the activity in that way, there is no reason to be held liable -- but is this right? Just the fact that its
highly regulated doesn’t always mean it’s safe (tanker trucks are highly regulated too)
 The ultimate driver of the court’s decision is to focus on the permitted activity (the fact that the activity
is approved and was conducted in a manner consistent with the expectations; therefore, strict liability is
not applicable
o Secondly, the fact that this case involved noise makes it different
o The heavy burden of strict liability on defendants (property owners) leads the court to
narrowly apply strict liability (for policy reasons, they didn't want to apply it to all situations).
But that kind of sounds like if the activity is not negligently done, the person shouldn't be
liable. But strict liability is based on the fact that even if it is abnormally dangerous, you are
liable for its harm even if you weren't acting wrongly -- he doesn’t really understand the
finding here
o The real question ought to be whether the residual risk of the activity as conducted were out
of scale or not (if so = abnormally dangerous activity without regard for if it was conducted
properly)
Foster v. Preston Mill Co.
 Noise caused mink to kill its babies.
 Limited their requested liability to the harm after notifying defendant of the harm. That means that the
foreseeability was only there after the notification (which is needed under proximate causation).
 Then the court finds that blasting counts as abnormally dangerous activity (using multi-factor test from
restatement).
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 "But for" actual causation was met. And so was proximate causation (after notification). But the court still finds
defendant not liable… why? Because the reaction by the minks was not within the bounds of what makes blasting
abnormally dangerous.
 Strict liability is "limited to the kind of harm the risk of which makes the activity abnormally dangerous" =
strict liability attaches only for harms that come from the nature of the activity that makes it abnormally
dangerous (being hit by rocks from blasting comes from the abnormal dangerousness, but noise does not) - could then go apply this to the Toms (cow) case (which can get rid of Toms' broad categorical limitation
on firework activities) (ex: not strictly liable for tiger if person has allergy, or id dingo runs in front of
traffic and causing driver to swerve thinking it was an ordinary dog --> not liable)
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