Purposes of Tort Law
 Advance social policy, optimal safety or loss spreading
 Resolve dispute arising out of social norms
Negligence/”Reasonable Care”
 Encourages activity, people cannot be afraid to act, only liable when at fault
 Prima Facie case of Negligence – P has burden of proof for production and
persuasion
o Negligence (carelessness)
o Causation – Actual and Proximate
o Injury
 Kinds of evidence
o Real – tangible object
o Direct – Witnesses
o Circumstantial – An inference made
 Adams v. Bullock (1919) – boy electrocuted in NY by trolley system and wire,
no warning. Not liable for negligence.
o No further precaution could have been taken with technology
 Negligence as objective standard
o Judged on outward standards, not personal standard.
o Community relies on all of it’s members to act with reasonable care
 Bettel v. NYC Transit Authority (1998) – P hurt when on bus due to
malfunctioning chair, not properly inspected. Not liable for negligence.
o Evolving standards of care when technology improves, so highest
standard is not necessary here.
 Reasonable Care Threshold determined by external community standards
o What is appropriate for general welfare
o If ordinary person can’t foresee the issue, then not negligent
o Even if you do your best, it can be negligent according to this standard
 Exceptions to objective negligence view
o Verifiable disability (blind, epilepsy, etc.)
o Children (unless engaged in adult activity)
o Licensing is not relevant in committing tort – held to same standard,
except in medicine because of regulatory organizations
 Employers vicariously liable for employee actions within scope of
employment
o Parents are not liable in the same way for children (but can be on
their own merits)
 Custom can be a factor, but is not conclusive in determining negligence
 Trimarco v. Klein (1982) – P hurt on glass shower even though it was custom
to use safer materials by that time. Negligent.
o Evidence determined this was a long-standing custom, land lord knew
o Court cannot establish a new custom, but can determine if falls below
one
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o Deviance from custom can indicate if unreasonable, but prevailing
custom doesn’t set standard of care
 May be reasonable to still follow old ways at times
If an entire industry observes bad custom, then must have reasonable proof
that this is negligence.
Breech of society’s norms
o Older cases go with bad or good custom
o New cases go with obligation to correct bad practices
Martin case – buggy hit by car going across middle lane. Not negligent.
o Affirmative defense of contributory negligence.
 Negligence per se - Lights on buggy is required by statute to
protect against this very thing – harm is what was meant to be
prevented
 With statute, much more conclusive than relying on custom
because it is based on expertise
o Community reliance – society members should conform to laws for
others
o Gorris v. Scott - If the harm that occurs is different than what the
statute is trying to prevent, then not negligence per se
Clinkscales case – Civil liability can exist without criminal liability
o Even without a statute in effect, community can still rely on the
standard that the statute would’ve imposed.
 No knowledge of invalidity of statute
o But if statute makes it less safe, can be ignored – it is possible that
there is an excuse
Res Ipsa Loquitur
 Occurrence of the act itself is negligence
o Inference of negligence from the act
o Circumstantial evidence is used
 Normally wouldn't happen without negligence
 D had “exclusive” control of the instrumentality – although this
is an extreme view, 3rd restatement says just must be a
relevant member in the negligence case
 Byrne v. Boadle (1863) – barrel of flour fell onto man walking by even though
there was no buggy there. Negligent.
o Almost strict liability in shifting the burden of proof for prima facie
case to D
 McDougald v. Perry (1998) – Tire flew at P’s car because it was not properly
connected to tractor-trailer. Negligent.
o D had complete control of tire security, so responsibility rests on him
o Speculation of what happened, chain went missing
 But this doesn’t happen normally
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Ybarra – patient hurt while during surgery, any one of the doctors could’ve
done it, not clear, court says res ipsa loquitur, even though not correct
application.
o Can’t lump all the Ds together and can’t arbitrarily pick someone
o Not acting in concert and one not responsible for all others
Res Ipsa motives
o 1. Circumstantial evidence - Standard use (people misunderstand it)
o 2. Burden shifting – what court does in Ybarra
o 3. Strict liability – this is what they hinted as could happen, but did
this more or less by shifting the burden
Medical Malpractice
 Doctors set their own standard for reasonable care
o Experts are necessary in trial to make objective and explain the
standard
o Unique to doctors because of the skill
 Standard is conclusive (not merely a factor like custom)
o This is not “reasonable” doctor standard
o The standard is determined prior to the situation, regardless of
surrounding factors.
 Same locality standard to national community
o National standards and regulations now, board certifications
o Attractive to be locality in the past
 Standard of care according to the procedure or experience debate
 Informed consent is different than medical malpractice
 Informed consent not thought of through battery logic – old way
o Now focus on self-determination and breech of doctor’s responsibility
o Doctors should explain enough to satisfy what a reasonable patient
would want to know
 Only option, either stifling innovation if only follow custom or
relying on unspecialized skills of patient to ask
 Can’t rely on hindsight
o Injury with informed consent is not the physical issue, but not
allowing a decision from the patient
Intentional Torts
 Important to determine the intent/purpose
o Interpretation of the facts
o Intent that it will happen, or knowledge that it will likely happen is
equally liable
 Can’t have contributory negligence
 Known risk + small precaution + great relative harm = any inaction is
indifference
 Garratt v. Dailey (1955) – boy allegedly pulls out chair from under old
woman
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o Must prove direct and proximate causation still
o Insanity is no defense to liability
o Defenses can be P consent, or D self-defense
o Parents liable if known risk of son’s actions
Prima facie case for intentional torts
o Act with intention;
o To do “x”… Battery, Assault, False Imprisonment, Trespass,
Intentional infliction of Emotional Distress
o Causation
o Injury
Picard v. Barry Pontiac (1995) – battery and assault against woman who was
taking pictures. Liable.
o D grabbed the camera that she was using and so this was extension of
the person for assault
o Threats are not assault, must be imminent
o Battery = (1) unconsented touching that is (2) harmful or offensive
 Context driven
Wishnatsky v. Huey (1998) – pushed out of room when walked in
unannounced. D not liable for battery, because it wasn’t reasonably
harmful.
o Thin-skull P rule – take P as you find them, however, does not
consider emotional problems
o Common-law says intent needs to be for both parts of battery
o Restatement says intent only needed for touching, not that it was
intentionally offensive
If involuntarily harm someone, not battery
Learned Hand Cost-Benefit Analysis
 US v. Carroll Towing (1947) – Bargee was gone and in the mean time the ship
hit another and sunk it and the cargo. He should’ve been on ship. Liable.
 Burden to prevent (cost) < Probability of accident X Severity of injury
o If burden is less, then should do prevention to not be negligent
o Only considers what is foreseeable
 Posner and economics in law
o Tort law should strive for optimal safety – not over/under invest in
safety – pushing public policy
o Shouldn’t spend more to prevent than injury is worth
 Not the test (still reasonable person), but it is persuasive
 Compliance-error
o High repetition activity like driving, inevitable injury so strict liability
 Bolton v. Stone (1951) – hit ball over the fence, never happened before
o Don’t consider the burden side because then leads to simple strict
liability and not doing activity (not just based on foreseeability)
o If severity of injury to a certain amount, shouldn’t do the activity at all
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No punitive damages, because it compensatory should be to the optimal
amount
Loss-spreading policy promotion
o Promote optimal loss of value within a community
o Easier to absorb impact of loss than if all on one person
o Insurance or raising price of goods
“Actual Cause”
 “But-for” test – but for X occurring, the injury would not have happened
o For clear cause, most cases
o P has burden of proof of causation
 Avoid arbitrary decisions – “could’ve been caused by this person”
o Causation must connect to the tort, not just D
 Multiple sufficient causes – when there are multiple Ds that could’ve caused
tort
o Proximate cause is a limit holding many Ds liable
o Two fires started separately reaching house at the same time
 Matsuyama v. Birnbaum (2008) – doctor failed to recognize symptoms of
cancer until it was too late and the chance of survival had gone super low.
Liable under “loss of chance.”
o Ultimate harm (death) must be met in a practical sense, generally
o Injury is lost opportunity to have successful outcome, otherwise lets
doctor’s commit malpractice if less than 51% of survival, avoids actual
causation of death
 5 steps to determining loss of chance damages value
o 1. What is the full amount of damages allowable for injury? 100K
o 2. What is the chance of survival before malpractice? 40%
o 3. What is the chance of survival after malpractice? 10%
o 4. Difference between these is the loss of chance. 30%
o 5. Multiply loss of chance by full amount of damages for the value in
this case. 30K
 Cannot mix “loss of chance” with full recovery if 51% chance of success
o Must have balance of D paying right amount, optimal benefit for both
 Joint and Several Liability - Assumption
o If Ds act in concert with single injury, then both can be held for any
amount for damages (full or portion) – equally responsible
o P can recover from any combination of the Ds
o Can unfairly stick one D with larger portion, even if less responsible
for tort because other is insolvent
o Proportional contribution – D can sue each other over this
 Several Liability
o If actors are independent, then only responsible for damage they
caused
o Potentially unfair to P if one is insolvent (or company is bankrupt)
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Summers v. Tice (1948) – Hunters accidently shoot friend, no way to tell
which one it was. Both are liable.
o Alternative Liability – not acting in concert (no agreement), but
shifts burden of proof to Ds
o Neither can prove the other was more likely, both are equally liable
Hymowitz v. Eli Lilly (1989) – can’t determine which manufacturer of drug
caused which person’s birth defect. All of them caused defects in someone,
but no direct knowledge of who.
o Not acting in concert (agreement) – not jointly or severally
o Ds don’t have more knowledge of who did what – not alternative
o Market-share liability – damages paid according to proportion of
market share
 P is paid and D pays their presumed share of responsibility
 Questions of what market to use, what location parties are
from, and big (if traditional approach isn’t appropriate) or
small (traditional tort approach) market
 Product must be objectively the same (works for drugs)
o Can’t accurately apply but-for test alone
o Debate if the companies are jointly liable or independent (what
happens when one went out of business, do Ps lose out?)
“Proximate” Cause
 Less definite than actual cause
 Set the limit on scope of liability
 Chain of causation for but-for logic can go on indefinitely
o Proximate cause can limit this
 Ways to explain proximate cause
o General “formulas” and phrases
 Substantial factor
 Natural continuous sequence
 Directness – Polemis (1921) – crate falls, creating spark which
burns down ship. Negligence was proximate cause because
direct, even though unforeseeable. Liable.
 Foreseeability – The Wagon Mound I – test is on foreseeability,
even though oil spill directly caused fire, it was not foreseeable.
Not liable.
 Scope of risk (closely related to foreseeability) – what made
conduct negligent? Only those factors in calculation of
proximate cause
o Precedents
o Specific rules of thumb – Eggshell P
o Vocabulary of interruption – superseding cause
 Issue with directness
o Liable for direct injury that was unpredictable
o Not liable for indirect injury that was foreseeable
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Foreseeable is a malleable term
Eggshell P Rule means that D is responsible for full injury even if condition
existed prior
Superseding causes – interrupt causal chain, prior event not the cause
o Deliberate acts, unique, criminal human conduct
Doe v. Manheimer – woman raped behind bushes that weren’t trimmed,
erred in saying rapist caused injury, but not actual cause.
o Rape was sufficiently egregious to supersede the bush negligence
 But the bush was not foreseeable as causing violent crimes
even in that area
o If it is foreseeable then it is negligence with proximate cause (so the
court’s decision is not necessarily plausible)
The Functions of “Duty”
 Palsgraf v. Long Island RR (1928) – hurt when something hit her from train
station when fireworks went off. Not liable.
o Cardozo – no duty to protect P, duty and negligence are strictly
correlative. If no duty is foreseeable, then no negligence.
o Andrews – Issue is not of duty, but of proximate cause. Because
fireworks proximately caused tort, they have liability. Liable for
anyone in the vicinity.
 Cardozo says that the push cannot foreseeably cause P’s injury, so no duty
o Only duty to certain perceivable risks
 Andrews says duty of care always exists to everyone in general
o Limits on duty are in form of proximate cause
 Derivative claim
o The original wronged person not able to sue (maybe dead) so passes
onto another person
o Cardozo needs this, Palsgraf’s claims would need to derive from
foreseeable injury
 Subrogated claim
o Insurance pays for a car crash, company is subrogating the insured
claim
 Cardozo says there is no derivative or subrogated claim for Palsgraf
o Andrew’s point is that this is not even the issue, her claim stands
alone, asserting her own claim
 New way of thinking about duty
o General duty of reasonable care exists, question is if it was breeched
o But if it was not there, negligence did not occur
 No duty to give affirmative aid
o You don't have to help people, only have to avoid hurting them
o Exceptions: Undertaking, special relationships, non-negligent creation
of risk
o Undertaking: Started to save, but then stopped.
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This does create a harm potentially because it diffuses
responsibility
 Discouraged others potentially from helping, singled yourself
out
 Already exercised the choice of freedom to help (decided to)
o Special Relationships: surrogate parent/custodial role
Law doesn't track normal morality, but if easy to do without risk, should help
legally
o Value of freedom, impracticality of helping everyone to your
detriment – Peter Singer thinks you should
But-for causation applies to omissions, so no-duty rule exists
Farwell v. Keaton (1976) – Didn’t take friend to hospital immediately, which
caused him to die. Liable
o Didn’t have duty at first to help, but gained it
o Maybe special relationship – companions on a social venture
o Definitely undertaking the giving of aid (ice, trying to wake him up)
Strauss and Con-Ed – power outage from electric company’s negligence.
Actual and proximate causation existed. Not liable.
o No duty used as limit to liability – crushing ruling to company who
would be liable to any (including non-customers) who suffered during
outage.
o Dissent says they can raise rates or take out of shares
o NYC citizens would likely be the ones who pay for this liability
o Limited duty to only those with privity of contract with Con-Ed
Moch – Company not liable for failing water hydrants when warehouse
burned down
o Opens up too many other lawsuits, hydrant is a benefit, no affirmative
duty – rare opinion
Reynolds – social hosts not liable to victims of car crash cause by drunk
minor party-goer
o Consider class of person - law is not intended to protect third party
victims, but minors from their alcohol consumption
o A jury could find negligent, so dismiss for above
o No duty to protect third party from serving alcohol to minor
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Duty on Property
 Carter v. Kinney (1995) – man slipped on way to bible study. Not liable. Not
an invitee.
o Social guest, so licensee
o Malleable terms due to how you define benefit (food?)
 Categories of people on property
o Trespassers – without owner’s permission (criminal purpose or not)
 No duty for injuries that occur on premise, except can’t be
traps
o Licensees – with owner’s permission, but not to benefit
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Must warn about dangers if you know about them, but no duty
to prevent injury
o Invitees – Public visitors (open in general like museum), or business
visitors (owner may gain financial benefit)
 Duty of reasonable care
Heins – merging of licensee and invitee distinctions
o 2 kinds of trespassers
 Flagrant – intending to do harm
 Innocent – maybe just cross over, but not meaning harm
Rowland v. Christian (1968) – CA, treat everyone under a reasonable duty of
care
o Encourages more trials (must determine if care existed every time)
o Meant to promote the fact that all life has value
o Doesn’t mean must exercise an equal amount of care in every
situation (for example trespassers)
Attractive Nuisance Doctrine – Almost like inviting children to come play
with something that can foreseeably cause harm
o Legal fiction of them being invitees, so people are liable to them, even
though technically they are innocent trespassers
o Fiction only works if object is visible off of the property (the fiction is
attractiveness of the object)
Landlord duty – harm to others by actions of tenants/third parties (it
depends if there is a duty or not, based on reasonable care)
o Justification of cost-sharing actions for tenants for reasonable care
o Landlords do have duty towards tenants
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Emotional Harm
 Hard to classify because broad
 Practical reasons for and against pursuit of recovery for emotional harm
 Duty to reasonably avoid this harm
o Intentional Infliction of Emotional Distress – the harm was clearly
outrageous, not simple negligence, calculated to produce the effect
 Must be generally deemed outrageous by ordinary member of
community
 Direct emotional harm categories
o Impact Rule – Can recover if out of physical conduct
o Physical symptom – Since it is subjective, requires something physical
or illness
o Within the Zone of Danger
o Foreseeability – no special limits on emotional harm
 Bystander emotional harm
o Using a zone of danger approach in Jaffee, duty because proximity of
mother to child
 Real test is foreseeability
o Guidelines to determine if can recover (determine foreseeability)
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 Death or seriously grave injury was caused by negligence
 Intimate relationship
 Observation of event at the scene
 Result in severe emotional distress
Survival claim – passed by family members, could’ve been brought by
decedent, except died
Wrongful death claim – based on family themselves, emotional harm and loss
of economic support
Court prefers only recovery for monetary loss, not emotional
Affirmative Defenses
 Assumption of risk
o Not based on P’s negligence, but on idea that they consented to risk
 Express Risk
o Written release from liability in case of injury, continues
 Did terms of waiver actually cover the circumstances
 Does waiver run counter to legislative (public) policy goals
 Implied Risk
o Consent is inferred
 1. P has knowledge of the risk
 2. P voluntarily encountered risk
o Historically used to disenfranchise workers – voluntarily decided to
stay at job even if knew it was unsafe
 Avoidance of consequence
o Could’ve avoided had you acted reasonably
o Not precluding recovery, but reducing damages because they could’ve
reasonably avoided injury
o Left up to trier of fact generally
 Contributory negligence
o Even if D was negligent, if P’s acts were also negligent then P recovers
nothing (even if negligence is relatively slight)
 Comparative Negligence
o Not a complete (all or nothing) bar, but partial – P friendly
(proportionate)
o Pure – damages reduced to equivalent to the percentage guilty of tort,
no matter how at fault P is
o Modified - P recovers % of their damages, unless their negligence
contributed over 50% of damages
 2nd option is the same idea except it is up to an equal % with D
(up to 49% can recover)
o Where there are multiple Ds, add their percentages up so P can
recover for injury (even if P is more at fault than anyone individually)
 3 possible solutions to problematic assumption of risk with relation to
softening of contributory negligence
o Retain implied assumption of risk as all or nothing defense
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Barred even if he wasn’t unreasonable in actions
They say reasonableness amount doesn’t matter because the
danger is inherent
o Abandon entirely - it was always an unwelcome element
o Merge into comparative negligence scheme (proportionate) –
effectively abandon assumption of risk
Uniform Comparative Fault Act
o Fault = more like responsibility, covers a lot more ideas
If need assumption of risk after it has been merged
o Secondary implied assumption of risk
 Knowingly encounter a risk of D’s negligence – merged into
comparative fault, so not really a defense – this is what they got
rid of
o Primary implied assumption of risk
 Modifying the duty owed P, they “agreed” to this by
assumption – they have not gotten rid of this kind of duty
 Risks are inherent in activity
 Duty is modified from reasonable care to just not to be reckless
 Sports cases are generally taken to be primary assumption of
risk by courts.
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Strict Liability
 Rylands v. Fletcher (1868) – neighbor’s artificial reservoir broke and flooded
underground coal mine. Strictly liable. Luck on who sues first likely.
o Artificially brought something onto land that could do harm if
escaped, it got out so strictly liable
o Natural consequence of the water escaping
o Potential conflict – rejection because natural consequence of progress,
general benefit for community, attendant circumstances must be
considered
o Extended to included environmental harms
 Examples of strict liability torts (at time of Rylands)
o Trespass – still committed tort, even if unintentional
o Nuisance – operate something that is legal, but consistently produces
and issue
 For example, pig farms and the fumes
o Escaping animals – cattle that kept contained normal, get out, eat
grass
 Liable for damage you can reasonably expect them to cause
 Standard of the nature of the animal
 Similar logic to the natural consequences idea
 Option of “non-natural use” being an unusual use (plus dangerous)
o Heightened risk to neighbors than what is normal, not that it is a bad
use necessarily
 Abnormally dangerous activities/ultraviolent activities
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o Animals, blasting, non-natural use of land
 All use the same logic to support strict liability
Example of Posner thought for Optimal Safety
o Injury Cost = 10K
 Person’s life = 1M x 1/100 chance it happens
o Prevention cost
 If 5K – then better to prevent
 If 15K – then not better to prevent
o Both negligence and strict liability scheme produce same result –
court cost is comparable so shouldn't give up negligence
Posner Exceptions for Strict Liability
o Activities that always carry risk – reduce the activity level or change
the place of the activity (driving and ballooning examples)
Reciprocity explanation – Fletcher – Pay for creating non-reciprocal risks
when something happens, imposed them on neighbors when they don’t
impose equivalent on you. Goal is to resolve disputes.
o Regardless of the legality/benefit of risk
o Issue though, why make things wrong just because non-reciprocal
Calabresi approach – supports strict liability as default, cuts out Posner
exceptions, prescriptive theory
o Instead of judging case by case, a category of actors will be always
liable for a given situation
 Allows for better planning to achieve optimal safety overall,
instead of the particularities of a given case
o Cheapest Cost Avoider – Party with the best knowledge about an
accident and best ability to act to achieve optimal safety
Chavez v. Southern Pacific – Railroad is carrying inherently dangerous items
(bombs)
o However, they are required by law to carry them because it was US
o Can’t blame them for an inherently dangerous act
 However, still strictly liable as a way of law spreading cost out
(raise its rates)
Abnormally Dangerous Activities Definition
o 2nd Restatement
 1. High Risk
 2. Harm is great if occurs
 3. Even if done with care
 4. Not common
 5. Inappropriate place
 6. Risk is greater than value of act
o 1 – 4 are reciprocity ideas
o 5 & 6 are a utilitarian addition
 Similar to the exceptions that Posner gives
Can the reciprocity elements be interpreted into utilitarian understanding
o 1 & 2 certainly can (Learned Hand test)
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o Something that is not of common usage and acting even with care
causing harm (Fits these into utilitarian concept too)
“Strict” Products Liability
 Only difference between negligent scheme and product liability scheme is
that negligence part is replaced by a product’s defect (causation – actual and
proximate, and injury must still all exist)
 No liability to Strict liability river
o Privity requirement – Mcpherson
o Proof of negligence – Escola (warranty)
o Contract limits – back to tort logic
 MacPherson – car owner sues car manufacturer (no privity of contract and
relationship, thus no liability)
o Expanding definition of what is an inherently dangerous product
 If you can foresee that if in intended use the defect will cause
harm, then inherently dangerous
o Does away with privity of contract as bar to recovery, makes it a
duty
 Escola – Soda bottle breaks in hand as it is being moved, there is no way to
prove negligence on part of company – uses best inspection methods
o Majority says res ipsa loquitor – bad rule
o Concurring is that manufacturer is cheapest cost avoider – law
spreading
o People accept product safety on faith, can’t assume responsibility of
consumers – company warranty for product (promise, so strict liab.)
o Warranty is ambiguous term – shift back to contract law
rd
 3 restatement’s 3 categories of product defects
o Manufacturing, Design, and Warning defects
 Manufacturing Defect
o Escola, one product is an anomaly
o Standard: when product departs from intended design, even though
all precautions were taken
o Strictly liable, didn’t meet standard. Nothing you can do to eliminate
the issue.
 Design Defect
o Conformed to the intended blueprint, not an issue with manufacturing
o So it was the design itself that was the issue – all products are unsafe
o Two standards
 Consumer Expectation – design defect while used as intended
or in a reasonably foreseeable way (ordinary consumer, not
company use claims) – Strict Liability
 Risk-Utility Standard – Weighing product risks against utility in
a cost/benefit analysis, shifts burden of proof to D – Negligence
o Soule – car crash, hurts P’s foot, claims of improper welding
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Consumer expectation standard must be limited to what is
simple and clear. Welding is too complicated in this case
 Should’ve used risk-utility here (thus negligence)
o Adopted by the 3rd restatement
 P must show there is a better design to prove defective (this
requirement has been met with backlash)
o Calabresi – The manufacturer is in the best position to decide if design
is defective (not a jury) – Cheapest Cost Avoider
Warning Defect
o Moved from strict liability (hindsight) to negligence (state of the art)
o Tort could’ve been avoided by a reasonable warning
o Can look at anything that seems relevant in determining if reasonable
 Should add all info because it doesn’t cost anything
o Does not include what is common knowledge danger
o No liability for hindsight (strict liability
 Can’t hold company liable for something they didn’t know
 Focus now on the product, not conduct (negligence)
o Not knowing the risk defense argument would apply to both design
and warning defects
 Could’ve been state of the art when first developed, marketed
 Look at info available at time product sold (time lag)
General Motors Corp. V. Sanchez (1999) – man killed by car that slipped into
reverse and rolled onto him. Contributory negligence so as to decrease
damages.
o D can’t be strictly liable if there is some contributory negligence
(comparative fault) – affirmative defense
o Comparative responsibility statute allows a comparison of fault, but
only for certain conduct
 Negligence in failing to discover defect – not reducible defense
 Negligence in all other conduct – reducible defense
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