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TORTS OUTLINEI.
In General
a. Tort; involves someone being harmed
b. Purpose: to compensate plaintiffs for unreasonable harm which they have
sustained.
I. Intentional Torts
Intent: purpose OR knowledge to a substantial certainty (didn’t desire but knew it had the
possibility to occur 50.01%)
Garratt v Dailey, kid knew with substantial certainty that P was trying to sit when he pulled the
chair away and that was therefore the intentional tort
I.
Battery: Intentional Tort: protects a person’s bodily integrity
I. Def. the intentional infliction of a harmful OR offensive bodily contact
II.
Battery is a voluntary act that intentionally causes a contact that is harmful or
offensive
I. A contact is offensive within the meaning of § 1(c)(ii) if:
(a) the contact is offensive to a reasonable sense of personal dignity; or
(b) the contact is highly offensive to the other's unusually sensitive sense of personal dignity,
and the actor knows that the contact will be highly offensive to the other.
Liability under Subsection (b) shall not be imposed if the court determines that avoiding the
contact would have been unduly burdensome or that imposing liability would violate public
policy.
A. Voluntary Act- Intent to Contact
a. Must be voluntary not a reaction of the body
i. Polmatier v russ – claim schizophrenia was cause- actions were still intentional
ii. Waters v Blackshear- firecracker in shoe, intentional not negligent
B. Intending Contact That is Harmful- whether an actor who commits a battery may be
liable for harms that the actor did not intend and could not reasonably foresee.
a. Harm: the existence or loss or detriment in fact of any kind to a person; injury
actually has a detrimental effect on the plaintiff Restatement (Second) of Torts
§7(b);
i. The detriment or loss to a person which occurs by virtue of or as a result
of some alteration or change in his person, or in physical things
b. Injury: the invasion of any legally protected interest of another
i. Nelson v Carroll
1. Is it battery if there is evidence that the defendant engaged in an
action intending to cause harm need to be the exact intent.
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2. For a claim to be battery there needs to be an intent for harm or
offensive contact with another without their consent. The indirect
contact of the bullet may also be battery but the intent required is
not a specific intent to cause the harm like the gun wound.
3. A claim for battery is applicable if there is evidence that the
defendant acted in a voluntary manner and intended to cause the
harm done. Here carroll committed battery when he struck nelson
with the gun after not receiving the money. It is not necessary
that the defendant carrol had a specific intent to cause specific
injury. All that is required is harm or contact occurs.
C. Intending a Contact that is offensive
a. Offensive Conduct: Restatement (Second) of Torts § 19 “a bodily contact is
offensive if it offends a reasonable sense of dignity”
i. must be one which would offend the ordinary person and be
unwarranted by the social usages prevalent at the time and place at
which is inflicted. Ie. Vegetarian with the same
b. Leichtman v WLW Jacor Communications Inc -smoke
i. Battery exists if he acts intending to cause harm or offensive contact;
Harmful contact exists
ii. Offensive contact directly or indirectly with the person’s bodily integrity
results
iii. contact which is offensive to a reasonable sense of personal dignity is
offensive contact. – disagreeable i.e. smoke
c.
Andrews v Peters -knee kicker
i. A defendant need not intend for another to suffer an injury to be liable
for the intentional tort of battery
ii. There is no requirement that a defendant intend to injure the plaintiff for
the defendant to be held liable for the intentional tort of battery. To be
found liable for the intentional tort of battery the defendant must only
intend to make a harmful or offensive contact with another individual.
Whether the defendant intended for the plaintiff to suffer injury as a
result of the offensive contact.
iii. Peter is liable even though he intended nothing more than a good
natured practical joke and possessed an honest belief that Andrews
would not suffer an type of injury.
d. White v Muniz – dementia/duel intent
i. A dual intent jurisdiction requires that a tortfeasor both intend to cause
the contact and intend for the contact to be harmful or offensive. Some
jurisdictions use a single intent approach for battery, requiring that the
tortfeasor only intend to cause the contact with another person. Under
the single intent approach, a person need only willingly touch another
and cause a harmful or offensive result to be liable for battery. Whether
the actor intended for any harm or offense to occur would be irrelevant.
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However, in a dual intent jurisdiction like Colorado, an actor must intend
for harm or offense to occur. It may be difficult for a jury to establish the
mental state of a potential tortfeasor with certainty, but the fact finder
may use circumstantial evidence to determine the actor’s probable
intentions. In the case at hand, the jury had to evaluate whether Everly
understood the offensiveness of her actions by considering her mental
capabilities and any other relevant personal characteristics.
D. Damages for Intentional Torts
a. Types of Damages
i. Mainly seek monetary (compensatory) damages
ii. Punitive Damages: damages intended to punish (Andrews v Peters); may
be awarded when malicious
iii. Nominal Damages: $1, make a point deterrence, awarded instead of
compensatory damages when the plaintiff has suffered an injury but no
harm (leichtman v wlw jacor communications, taylor v Barwick) ----injury
v harm; damages measured by harm. Injury is the invasion of any legally
protected interest (nelson v carroll)
b. Taylor v Barwick - inmate/guard- nominal damages, no accompany injury pro se
i. A plaintiff who shows the existence of a battery without an
accompanying injury may be awarded at most nominal charges
ii. A plaintiff who sufficiently shows the existence of a battery without some
accompanying injury may be awarded at most NOMINAL damages (
minimal damages awarded to the plaintiff to show that he was correct
usually where plaintiff has not suffered substantial injuries, make point) A
battery in an INTENTIONAL and unpermitted harmful or offensive contact
upon the body of another. Often, when a plaintiff files suit against a
defendant for battery the plaintiff has suffered some physical or mental
injury that demands compensatory damages be awarded to the plaintiff.
iii. No injury suffered by Taylor as a result of the contact. Contact de minimis
in nature
II.
Assault
I. Definition: requires that a person acts while intending a harmful or offensive
contact with another or acts while intending to produce a reasonable
apprehension of an imminent battery causing mental or emotional damages.
A. Intending Apprehension of Imminent Contact- purpose or knowledge
that an apprehension of imminent harmful or offensive contact would
result
I. Cullison v Medley – 16yo parents mad in trailer
a. Assault requires that a person acts while intending a
harmful or offensive contact with another or acts while
intending to produce a reasonable apprehension of an
imminent battery causing mental or emotional damages
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b. Assault ONLY requires mental or emotional damages
caused when a person acts while intending a harmful or
offensive contact or acts while intending to produce a
reasonable apprehension of an imminent battery (about to
happen physical contact) The apprehension must be one
usually produced in a reasonable persons mind.
II. Brower v Ackerley – billboard prank calls
a. Words alone are not enough to make an actor liable for
assault unless the words are accompanied by other acts or
circumstances that place an individual in reasonable
apprehension of an imminent or offensive contact by the
defendant
b. However words alone are typically NOT ENOUGH to make
an actor liable for assault. Nevertheless, there is an
exception to this rule in cases where the words are
accompanied by other acts or circumstances that place an
individual in reasonable apprehension of an imminent or
offensive contact by the defendant. Here the defendants
seemingly threatening comments to brower were
insufficient to create an imminent apprehension of an
offensive or harmful contact.
B. Transfer of Intent Among People and Between Torts
i. Allows a plaintiff who suffers a harmful or offensive
contact to recover for a battery even if the
defendant intended only an assault and allows a
plaintiff who suffers apprehension of imminent
harmful or offensive contact to recover for an
assault even if the defendant intended only a
battery.
ii. Transfer of intent among people- intent to assault
or batter one person but ends up assaulting or
battering another the defendant is liable to the
other as if the other had been the intended target
(hall v mcbryde)
I. Hall v McBryde shoot wrong persons- kids in car
I.
intended to put the youths who occupied the car
in imminent apprehension of a harmful or offensive bodily
contact. Consequently under the doctrine of transferred
intent mcbryde intended to place other nearby persons in
apprehension of an imminent contact thereby satisfying the
intent requirement for battery.
III.
False Imprisonment
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
Definition : a defendant who acts with the requisite intent will be liable for injury to the
person confined regardless of whether harm results or whether the confinement is brief
 (1) defendants intend to confine them (2) they were conscious of the
confinement (3) they did not consent to the confinement and (4) confinement
was not otherwise privileged
A. Intent : purpose and knowledge to a substantial certainty
I.
Vumbaca v Terminal One Group Ass'n LP -stuck in JFK airport
 When legal duty exists to release plaintiff from confinement an
intentional refusal to release plainitff constitutes false
imprisonment
 Mere knowledge and appreciation of a risk is not the same as the
intent to cause injury. Defendant (terminal one) had a duty to
provide a safe means of degree from the airplane it is assumes for
the purpose of this motion that its failure to ensure that there
were adequate ground handling staff was the proximate cause of
her confinement
B. Confinement and Consent: an actor must intend to confine not merely to restrain
movement in a particular direction. If one is aware of a reasonable means of escape one has
not been confined.
I. Barrett v Watkins confined in park (not small space can be open) cant escape- time or
space doesn’t matter
I. may be considered confined if the defendant did not inform the plaintiff of an
exit, the plaintiff was not aware of an exit and the means of exiting were not
reasonable
II.
For the purposes of false imprisonment, a plaintiff may be considered confined if
the defendant did not inform the plaintiff of an exit, the plaintiff was not aware
of an exit, and the means of exiting were not reasonable. To establish a claim of
false imprisonment, a plaintiff must show that (1) the defendant intended to
confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the
plaintiff did not consent to the confinement, and (4) the confinement was not
otherwise privileged. Confinement is complete if the means of escape are
unreasonable or if a reasonable means of escape is unknown to the plaintiff.
II.
Zavala v Wal-Mart Stores, Inc – janitor stuck, threatened, was a way out
I. The tort of false imprisonment requires that a person be constrained by force or
threat of force and NO knowledge of exits. Threats may take the form of conduct
or words. The harm feared must be of actual force, not just emotional, such as
humiliation or loss of a job. Here, the plaintiffs have alleged that they were
physically locked into Wal-Mart stores during their shifts. If true, the plaintiffs
were constrained by force for purposes of a false imprisonment claim.
Additionally, the plaintiffs allege that they were threatened with deportation.
The threat of deportation may qualify as a threat of actionable force sufficient to
make out a claim of false imprisonment. Consequently, Wal-Mart’s motion to
dismiss is denied with respect to the plaintiffs’ false imprisonment claim.
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IV.
Infliction of Emotional Distress
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Definition : protects a person’s right to be free from serious emotional distress.
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Known as tort of outrageousness or tort of outrage
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Conduct otherwise permissible may become outrageous if it is an abuse by the actor of
a position in which he has actual or apparent authority over the other (power positiontherapist kids) or power to affect the other’s interests
o
Arise with knowledge that the other person is peculiarly susceptible to emotional
distress by reason of some physical or mental condition Restatement §46
A. Outrageousness/Extreme and Outrageous: so outrageous that it is not tolerated by a
civilized society
I. Zalnis v Thoroughbred Datsun-car buying cheater
II.
: On a claim of outrageous conduct (intentional infliction of emotional distress), conduct
that is otherwise permissible may be considered extreme and outrageous if the
defendant is a position of power or has actual or apparent authority over the interests
of others.
 took car back and harassed her based off of the plaintiffs sensitivity if the Defendant
knows about it, conduct not privileged, plaintiff susceptible to emotional distress –
serious outrageous conduct Objective test accounting for relevant circumstance if D knows about it
 On a claim of outrageous conduct (intentional infliction of emotional distress),
conduct that is otherwise permissible may be considered extreme and outrageous if
the defendant is a position of power or has actual or apparent authority over the
interests of others
 Relationship between parties and abuse of power is relevant
 D can exercise legal rights but cannot exceed the appropriate bounds i.e.. Rent from
a tenant
 The totality of the conduct leads to the conclusion
II.


Strauss v Cliek- defendant has affair of the plaintiffs wife with his best friend is not
outrageous enough
Not per se rule- extra marital affair can reach the threshold
Exceeding bounds of human decency – outrageous!
B. Severe Emotional Distress- Severe emotional harm: Plaintiff must also establish that he
or she suffered severe emotional distress as a consequence of the defendants conduct
II.
Rogers v Louisville Land Co-woman sons burial site
: A plaintiff alleging that the defendant’s conduct constituted intentional
infliction of emotional distress must show that, as a result of the defendant’s
outrageous conduct, she suffered mental distress so severe that no reasonable
person could be expected to endure it.
1. Physiological
2. Psychological
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3. Medical Treatment
4. Duration and Intensity
5. Daily Functioning
i.
Suffered serious mental injury( 6 FACTORS TO HELP DETERMINE)
a. Physiological manifestations of emotional distress i.e.. sleeplessness, depression,
anxiety, drug abuse
b. Sought medical treatment, was diagnosed
c. Evidence regarding the duration and intensity
d. Other evidence that D caused P to suffer significant impairment in his daily
functioning
e. Evidence of the D extreme and outrageous conduct
C. Intent and Recklessness – recklessness based off of the defendants disregard of a
substantial probability of serious harm associated with his conduct
I. Dana v Oak Park Marina, Inc-filmed changing room – recklessness disregard of a substantial
probabilty of serious harm associated with his conduct
I. A plaintiff may recover for negligent infliction of emotional distress if the
defendant recklessly exhibited extreme and outrageous conduct with an intent
to cause, or in disregard of a substantial probability of causing, severe emotional
distress.
II.
negligent infliction of emotional distress shall successfully overcome a motion to
dismiss, if the plaintiff sufficiently alleges that: (1) the defendant recklessly
exhibited extreme and outrageous conduct (2) with an intent to cause, or in
disregard of a substantial probability of causing, (3) severe emotional distress
and (4) there was a causal connection between the conduct and resulting injury.
III.
Reckless= disregard the risk of harm
D. Transferred Intent for Infliction of Emotional Distress – transfer is more narrow with IIED,
2nd restatement 46 section 2
Where outrageous conduct is directed at a third person the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress
- To a member of such persons immediate family who is present at the time whether or
not such distress results in bodily harm. OR
- To any person who is present at the time if such distress results in bodily harm and the
defendant is aware of the third party’s presence
I.
Green v Chicago Tribune mom with son in hospital press leaks picture and comment no
consent
I. Transfer of intent among people can create a large class of potential for
plaintiffs. For intentional infliction of emotional distress the class of people to
whom intent may be transferred is more narrowly defined- need to be present
as a family member does NOT have to include bodily harm or simply present at
the time of event is such distress results in bodily harm REQUIRED
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II.
Intent may be transferred to a person who was not an intended target of the
defendants conduct ONLY if that person was present OR if such distress results
in bodily harm
III.
2nd restatement 46 section 2
Where outrageous conduct is directed at a third person the actor is subject to
liability if he intentionally or recklessly causes severe emotional distress
 To a member of such persons immediate family who is present at the time whether
or not such distress results in bodily harm. OR
 To any person who is present at the time if such distress results in bodily harm
------------------------------------------------------------------------------------------------------------------------------UNINTENTIONAL TORT= no purpose no knowledge not intentional
II.
Negligence: commission of an act or the failure to act without wrongful intent that falls
below the minimum degree of ordinary care imposed by law to protect others against some
reasonable risk of harm.
I. A plaintiff may recover damages if the defendant
I. Owed the plaintiff a duty to act in a certain way
II.
Defendant breached the duty by failing to act as well as the duty required
III.
Cause
IV. Harm
*duty, breach, causation and damages*
- most of the time duty is to act as a reasonable person would act in the
circumstances that led to an injury
Fault means you were worse than the reasonable person
a. Duty- the obligation to protect another against unreasonable risk of
injury
b. Breach- the failure to meet that obligation
c. Cause – a close causal connection between the action and the injury
d. Harm- the loss suffered
I.
D must
I. Fail to exercise the care that a reasonable person in
position would exercise
II.
Act in a way that breaches the duty to prevent the
foreseeable risk of harm to anyone in the P position and
that breach must be the cause of the P injuries.
I.
Reasonable Person Standard – hyper diligent person who takes extra precautions who can
do no wrong and will never breach duty
- Assume that other people will be reasonably careful not to injure us and we do not need
to anticipate their particular personalities and capabilities. If they fail to act in a
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reasonable way and their conduct harms us, we can expect to be compensated with tort
damages (usually cash)
A. Defining and Justifying the Reasonable Person Standard
I. Vaughan v Menlove -fire haystack didn’t act reasonably
I. A person has a legal duty to use his or her property with the same level of
ordinary care that would be exercised by a reasonable person.
II.
Liability rule : d has to pay p if the following check list is satisfied.
Elements of a tort. (what does the p have to est to get relief that the p
wants)
III.
Objective standard- reasonable man
I.
Parrot v Wells Fargo & Co (the nitro glycerin case)
 If a defendant is engaged in a lawful shipping business and has no
knowledge of dangerous contents it has shipped,
 is a person liable for negligence in the handling of the dangerous items
that subsequently cause injury, death, and property damage?

If properties are not widely known what would a reasonable person do?


II.
When applying the reasonable person standard what does the
reasonable person know about nitro glycerin?
No. If a defendant is engaged in a lawful shipping business and has no
knowledge of dangerous contents it has shipped, the defendant is not
liable for negligence in the handling of the dangerous items that
subsequently cause injury, death, and property damage. (reasonable
person wouldn’t have screened)
Negligence is conduct that falls below the standard of care that would have been
exercised by a reasonably prudent person under the same or similar
circumstances.
 The reasonableness of an actors conduct will usually depend on the
knowledge that the actor had about the riskiness of a situation.
 Tort law could treat an actor as possessing
a. Full knowledge of all the risks of his or her situation
b. All of the knowledge a reasonable person would have had OR
c. Only the knowledge the actor actually had
B. Reasonable Conduct as a Balancing of Costs and Benefits
A. Reasonable under circumstances- learned hand
I.
McCarty c Pheasant Run, Inc – unlocked door intrudera. Reasonable costs and efficacy
b. Under the Hand Formula test for negligence, an entity’s unreasonable conduct is
defined as the failure to take sufficient precautions when such precautions
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II.
III.
IV.
II.
would generate greater benefits in avoiding incidents or accidents than the
implementation would cost.
i. Burden of prevention or avoidance LES THAN Probabilty of Loss
multiplied by Magnitude of Loss that would be avoided with the possible
prevention or avoidance
c. Unreasonableness- where an act is one which a reasonable man would recognize
as involving a risk of harm to another, the risk is unreasonable and the act is
negligent if the risk is of such magnitude as to outweigh what the law regards as
the utility of the act or of the particular manner
d. Factors considering conduct:
i. Social value which the law attaches to the interest which is to be
advanced or protected by the conduct
ii. The extent of the chance that this interest will be advanced or protected
by the particular conduct
iii. The extent of the chance that such interest can be adequately advanced
or protected by another and less dangerous course of conduct
e. Determining Risk
i. Social value
ii. Extent of the chance that the actors conduct will cause an invasion of any
interest
iii. Extent of harm likely to be caused
iv. Number of persons whose interests are likely to be invaded if the risk
takes effect in harm
Under the Hand Formula test for negligence, is an entity’s unreasonable conduct
defined as the failure to take sufficient precautions when such precautions would
generate greater benefits in avoiding incidents or accidents than the
implementation would cost?
Is the hotel act reasonable
However, McCarty failed to provide evidence regarding how much it would cost for
the Lodge to equip every room on the premises with a formidable new lock,
restructure the grounds to make the stairways inaccessible, and hire additional
security guards. However, McCarty’s recommendations are moot, because the
intruder entered her room through an unlocked door. The best lock in the world
would not have prevented McCarty’s attacker from entering, because the door had
been unlocked in the first instance.
United States v Carrol Towing
I. Liability for negligence due to failure to take safety precautions exists if the
burden of taking such precautions is less than the probability of injury multiplied
by the gravity of any resulting injury, symbolized by B < PL = negligence liability.
II.
Connors is contributorily negligent for its failure to take safety precautions by
having an employee aboard the barge during the daylight hours. Liability for
negligence due to failure to take safety precautions exists if the burden of taking
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III.
such precautions is less than the probability of injury multiplied by the gravity of
any resulting injury.
The burden of taking precautions for Connors was nothing more than paying its
employee to remain on the barge during normal working hours, when the
incident occurred. If he had been on board, he could have called for help from
the tug boats when the barge broke free and possibly avoided the damage.
I. Introduction
II. The “Reasonable Person” Standard
i. depend on the knowledge that the actor had about the riskiness of a
situation
ii. full knowledge of all the risks
iii. all of the knowledge a reasonable person would have
iv. only the knowledge the actor
A. Defining and Justifying the “Reasonable Person” Standard
A. We can assume that other people will reasonably careful not to injure us
and we do not need to anticipate their particular personalities and
capabilities if they fail to act in a reasonable way ans their condict harms
us we can expect to be compensated with tort damages
B. VAUGHAN v. MENLOVE- haystack
A. A person has a legal duty to use his or her property with the same level of
ordinary care that would be exercised by a reasonable person.
B. Liability rule : d has to pay p if the following check list is satisfied.
Elements of a tort. (what does the p have to est to get relief that the p
wants)
PARROT v. WELLS, FARGO & CO. (THE NITRO-GLYCERINE CASE)
a. If a defendant is engaged in a lawful shipping business and
has no knowledge of dangerous contents it has shipped,
the defendant is not liable for negligence in the handling
of the dangerous items that subsequently cause injury,
death, and property damage.
b. If properties are not widely known what would a
reasonable person do
c. Negligence is conduct that falls below the standard of care
that would have been exercised by a reasonably prudent
person under the same or similar circumstances.
d. Tort law could treat an act as possession 1 full knowledge
of all risks of his situation 2 all of the knowledge a
reasonable person would have had 3 only the knowledge
the actor actually had
C. Reasonable Conduct as a Balancing of Costs and Benefits
A. The hand formula was expressed algebraically stating that
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A. Conduct would be negligent if B<PL. In that expression B stands
for the burden of prevention or avoidance and an actor is
negligent if that burden is less than P, which stands for the
probability of loss, multiplied by L, which stands for the
magnitude of loss that would be avoided with the possible
prevention or avoidance.
US v Carrol Towing
A. Liability for negligence due to failure to take safety precautions exists if the
burden of taking such precautions is less than the probability of injury multiplied
by the gravity of any resulting injury, symbolized by B < PL = negligence liability.
B. Thus, compared with the relatively high risk of injury multiplied by the gravity of
the injury, the burden on Connors to take precautions is relatively low. Connors
is thus contributorily negligent for its failure to take safety precautions by having
an employee aboard the barge during the daylight working hours.
McCARTY v. PHEASANT RUN, INC.- entered through open door
C. Under the Hand Formula test for negligence, an entity’s unreasonable conduct is
defined as the failure to take sufficient precautions when such precautions
would generate greater benefits in avoiding incidents or accidents than the
implementation would cost.
D. In Illinois, the Hand Formula test for negligence defines an entity’s unreasonable
conduct as the failure to take sufficient precautions that would generate greater
benefits in avoiding incidents or accidents than the implementation of the
precautions would cost. The Hand Formula, adopted from the admiralty case
of U.S. v. Carroll Towing Co., 159 F.2d 169, 173 (2nd Cir. 1947), translates into
economic terms the conventional test for negligence, namely whether a
defendant’s conduct falls below the standard of care that a reasonably prudent
person would exhibit in the same or similar circumstances
III.
The Range of Application of the Reasonable Person Standard
a. Courts generally have shown great confidence in the
ability of jurors to use the reasonable person test in many
contexts
A. Especially Dangerous Instrumentalities
a. Rst, 12, If an actor has skills or knowledge that exceed those possessed by most
others, these skills or knowledge are circumstances to be taken into account in
determining whether the actor has behaved as a reasonably careful person.
STEWART v. MOTTS (gasoline carry with care)
b. In a negligence action, the defendant is held to the standard of care that a
reasonable person would exercise under the circumstances, even if the defendant
is engaged in the use of a dangerous instrumentality.
c. The only standard of care for negligence actions is reasonable care under the
particular circumstances, even for actions involving dangerous instrumentalities.
This standard never changes, but the care required will be proportionate to the
danger of the activity undertaken by the defendant.
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d. However, this would still be a standard of “reasonable care” under the
circumstances, instead of a “high degree of care.” In the case at hand, the jury
instruction stated the standard of care accurately, as the care of a reasonably
prudent person under the same circumstances.
B. Emergencies
a. Rst, 9, If an actor is confronted with an unexpected emergency requiring rapid
response, this is a circumstance to be taken into account in determining whether
the actor’s resulting conduct is that of the reasonably careful person
i. When an actor faces two or more choices of conduct each of which entails
its own combination of advantages and disadvantages. It may be that as the
choices are compare one can be identified as the preferred choice;
accordingly, the other choices could be deemed mistaken and negligent, in
light of the factors regarded as primary.
ii. An emergency can be defined functionally as the kind of event that
prevents reasonable persons from exercising the kind of good judgment
that such persons ordinarily exercise.
iii. An emergency is an event that requires a decision within an extremely
short duration and that is
MYHAVER v. KNUTSON (drove head on into the wrong truck EMERGENCY)
a. The sudden emergency doctrine provides that a defendant is not liable for
negligence if he was faced with a sudden and unexpected danger and acted
reasonably under the circumstances to avoid harm to himself or others.
b. the sudden emergency doctrine provides that a defendant is not liable for
negligence if he was faced with a sudden and unexpected danger and acted
reasonably under the circumstances to avoid harm to himself or others. This is true
even if, in hindsight, the defendant could have taken a better course of action. Some
jurisdictions hold that a sudden-emergency instruction should not be given to the
jury, because it is likely to confuse the jury members regarding whether the
reasonable person standard of care is applicable or some other lower standard
controls. However, traditional negligence and the sudden emergency doctrine are
not separate rules. Rather, the latter is applied to the facts and circumstances to
determine whether the defendant adhered to the general standard of reasonable
care.
c. When should the sudden emergency jury instruction be given? Used sparingly and
be confined to the case in which the emergency arises from events the driver of the
vehicle could not be expected to anticipate.
a. The party seeking the instruction had not been negligent prior to the
emergency
b. The emergency in question came about suddenly and without warning AND
c. The defendants reaction to the emergency was spontaneous without time
for reflection
C. An Actor’s Knowledge and Skill
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a. Rst, 12, If an actor has skills or knowledge that exceed those possessed by most
others, these skills or knowledge are circumstances to be taken into account in
determining whether the actor has behaved as a reasonably careful person
i. Applied to when the actor has a clear obligation to acquire special
knowledge and special skills that relate to that dangerous activity- which
are simply a consequence of that obligation
ii. When an actor possesses the above average knowledge or skills
iii. The fact that a person is below average in judgment, knowledge or skills is
generally ignored in considering whether the person is negligent
iv. Intoxication – when an actors intoxication is voluntary it is not considered
as an excuse for the actors conduct that is otherwise lacking in reasonable
care. Moreover actors can be found negligent precisely because they
consume alcohol knowing that they will shortly be undertaking a dangerous
task or because they undertake such a task knowing that they are under the
influence of alcohol.
CERVELLI v. GRAVES(icy road expert driver)
a. A jury may consider evidence of exceptional skills
b. Most of the time the standard of a reasonable man requires only a minimum of due
care to recognize the existence of the risk.
c. In some circumstances an actor is required to exercise those superior qualities that
he has in a reasonable manner under the circumstances
D. Youth: Special Treatment for Minors
a. Rst, 10 A child’s conduct is negligent if it does not conform to that of a reasonably
careful person of the same age, intelligence and experience, except
1. A child less than 5 years old is incapable of negligence
2. Does NOT apply when a child in engaging in a dangerous activity
that is characteristically undertaken by adults
ii. A child is a person below the age of majority as specified by the particular
jurisdiction.
iii. Dangerous adult activities
1. When a child chose to engage in dangerous activities
characteristically engaged in by adults, no account is taken of their
childhood, and the negligence rules set forth apply without
qualification.
a. Driving
2. An activity is characteristically engaged in by adults if adults are the
primary persons who ordinarily undertake the activity. If the activity
is widely engaged in by both adults and children, depends on how
distinctly dangerous it is.
ROBINSON v. LINDSAY (kid driving snow mobile)
a. An adult standard of care should be applied to a minor
engaging in an inherently dangerous activity, such as the
operation of a powerful motorized vehicle.
15
b. Although the standard of care against which a child is to be
judged is generally that of a “reasonably careful child of the
same age, intelligence, maturity, training and experience,”
this is not the standard to be applied if the child is engaged
in an inherently dangerous activity.
c. In these types of cases, an adult standard of care should be
applied because it would be unjust to allow a child to defend
his negligence on the basis of age when he was willfully
engaged in an activity normally not undertaken by
individuals his age.
PETERSON v. TAYLOR (kid lit a fire with your gas can man!)
a. The standard of conduct to which a child must conform to avoid being found
negligent is that of a reasonable person of like age, intelligence and experience
under like circumstances.
b. Taylors argued that the boy had been contributorily negligent, barring the plainitff
from any recovery if they contribute to their own injury through their own
negligence
c. The standard of conduct to which a child must conform in order to avoid being
found negligent is that of a reasonable person of like age, intelligence, and
experience under similar circumstances.
d. Under that standard, the jury’s first inquiry is a subjective one, namely determining
whether the capacity of the child to perceive and avoid the particular risk involved,
given what the evidence shows about his age, intelligence, and
experience. Thereafter, the jury’s focus becomes objective, namely determining how
a reasonable child of like capacity would have acted under the same or similar
circumstances. The particular child in question can be found negligent only if his
actions fall short of what may reasonably be expected of children of similar capacity.
Here, there was ample evidence to show that David was capable of being
contributorily negligent and should have known not to use gasoline to start a fire
e. Two parts to applying the reasonably child standard
a. Subjective- what was the child actors capabilities
b. Objective- comparing the reasonable child to the circumstance, and would
the reasonable child do something different?
E. Physical and Mental Disabilities
a. Rst, 11, The conduct of an actor with a physical disability is negligent only if the
conduct does not conform to that of a reasonably careful person with the same
disability
b. The conduct of an actor during a period of sudden incapacitation or loss of
consciousness resulting from physical illness is negligent only if the sudden
incapacitation or loss of consciousness was reasonably foreseeable to the actor
c. An actor’s mental or emotional disability is not considered in determining whether
conduct is negligent, unless the actor is a child
d. Physical disabilities need to be significantly and objectively verifiable.
i. Advantages-
16
1. Establishing that the actor knew or should have known of the
dangers that would have been known by others
2. Show that the actor was unable to adopt a precaution that would be
feasible for most persons
ii. Disadvantages1. Some conduct on their part will foreseeably entail a greater risk
than the same conduct engaged in by able bodied persons. To
foresee this, an actor can be found negligent for not adopting
special precautions that can reasonably reduce the special dangers
that the actor’s conduct involves
a. Walking with a cane if you are blind
e. Physical disability is neither a justification nor an excuse for what is otherwise
negligent conduct. An actors SIGNIFICANT physical disability should be taken into
account in determining whether the acotrs conduct lacks reasonable care.
f. Tort law tailors the negligence standard to acknowledge the individual situation of
the actor
g. Old Age- old age is NOT taken into account in assessing the negligence of an actors
conduct.
i. Age will be taken into account under the circumstance
h. Sudden incapacitation
i. When the incapacitation is itself unforeseeable, it follows that no
reasonably precautions were available to the driver that could have
avoided the risk of harm.
ii. Defense against a claim of negligence in the sense that the burden of
production rests on the party claiming incapacitation
i. Mental and Emotional disability
i. When the actor is a child the quite subjective rules concerning children set
forth apply and any mental or emotional disability suffered by the child is
taken into account in determining whether the child has behaved
reasonably.
ii. For adults, however such a disability is typically disregarded in considering
whether the person has exercised reasonable care.
POYNER v. LOFTUS(blind man where is your cane?!)
a. A blind individual may be contributorily negligent in his
actions if he fails to exercise due care for his own safety with
respect to known or reasonably foreseeable dangers.
b. A blind individual may be contributorily negligent in his
actions if he fails to exercise due care for his own safety with
regard to known or reasonably foreseeable dangers. Due
care is such care that an ordinary prudent person with the
same disability as the party would exercise under the same
or similar circumstances
CREASY v. RUSK(alz taken into consideration)
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a. A mentally disabled person is held to the standard of care of a reasonable person
under like circumstances, regardless of the person’s ability to understand or control
his or her actions.
b. Does the court need to consider the mental capacity of the defendant? Under the
circumstances Rusk did not owe a duty to the plaintiff who was a nurse at the facility
c. May a jury take a persons mental capacity into account when determining the
existence of a legal duty?
a. No- a person with mental disabilities is not excuses from conforming to the
usual reasonable person standard of care.
d. There are five main policy reasons for holding a person with mental disabilities to
the same standard of care as a person of sound mind.
a. First, this rule will allocate the blame between two innocent parties to the
party who caused the harm.
b. Second, the rule provides an incentive to caretakers of the mentally disabled
to prevent harm to others.
c. Third, this removes the incentive for a defendant to feign a mental illness to
avoid liability.
d. Fourth, the rule also remedies the difficulty that jurors face in attempting to
evaluate the impact of a potential tortfeasor’s mental disability.
e. Finally, because state and national policy seeks to promote equality between
disabled persons and those without disabilities, the rule holds the mentally
disabled responsible if they are to engage themselves in society. In the case
at hand, Rusk’s mental capabilities should not be taken into account to
determine the existence of a legal duty. Therefore, the decision of the court
of appeals is reversed.
e. Tort law should ignore an actor’s mental disability in evaluating the actor’s conduct
and should treat the actor as one with typical mental abilities.
Proving Breach
a. To recover damages in a tort suit, a plaintiff must persuade the trier of fact
that the opponent breached a duty.
b. To show that a party failed to behave as an ordinary prudent person the
party’s opponent typically offers evidence showing that the conduct created
significant risks and that a reasonable person would have avoided the risks.
II.
Violation of a Statute
I. In many cases, a party may establish that the opponents conduct violated
a statute. If the statutes purpose was to protect the injured party from
the type of harm that occurred the proof of violation will have special
evidentiary effect.
18
II.
III.
IV.
V.
Courts may treat proof of the statutory violation both as establishing a
standard of care and as evidence that the opponent’s conduct was
negligent.
Proof of violation of a statute may support a finding that either a plainitff
or a defendant was negligent
Rst, 14- An actor is negligent if without excuse, the actor violates a
statute that is designed to protect against the type of accident the actors
conduct causes and if the accident victim is within the class of persons
the statute is designed to protect
I.
Applies to statutes adopted by state legislatures, state
administrative bodies, ordinances adopted by local councils and
federal statutes as well as regulations promulgated by federal
agencies
II.
The responsibility of the court is to enforce liability right expressly
created by the statute.
III.
Negligence per se applies only when the accident that injures the
plainitff is the type of accident that the statute seeks to avert. This
statutory purpose doctrine resembles the scope of liability
doctrine that is applied in ordinary negligence cases where the
defendant is liable only if the accident that harmed the plaintiff is
the type of accident the jury has taken into account in designating
the defendant’s conduct as negligent.
IV.
Class of victim- to invoke negligence per se, a party must show
that the plaintiff was within the class of persons the legislature
was endeavoring to protect.
V.
The jury’s role is to determine whether a violation occurred
Excused Violations
I.
Rst, 15, An actors violation of a statute is excused and not
negligence if:
I. The violation is reasonable in light of the actors
childhood, physical disability, or physical
incapacitation
II.
The actor exercises reasonable care in attempting
to comply with the statute
III.
The actor neither knows nor should know of the
factual circumstances that render the statute
applicable
IV. The actors violation of the statute is due to the
confusing way in which the requirements of the
statute are presented to the public OR
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V.
b.
c.
d.
e.
f.
g.
The actors compliance with the statute would
involve a greater risk of physical harm to the actor
or to others than noncompliance
Recognizing excuses prevents negligence per se from
being applied in many of the cases in which public officials
might well find it inappropriate to prosecute the person
who technically is a law violator.
Childhood and physical disabilityReasonable efforts to comply- when the seeming violation
of such a statute is relied on as negligence per se, the
initial responsibility of the court is to interpret the statute
intelligently. Certain statutes that do not set forth any
explicit negligence requirement properly can be
interpreted as implicitly requiring negligence on the part
of the supposed statutory violator.
I. The burden of proof in showing reasonable efforts
rests on the party who has violated the statute.
If facts are present, but the actor who violates the statute
is unaware of this and if that actor further proves that this
ignorance was reasonable, the actors violation of the
statute is excused for purposes of negligence per se. this
excuse can be regarded as an example of the more general
excuse available to the actor who violates a statute
despite reasonable attempts to comply
Ignorance of the law does not count as an excuse for
negligence per se to operate fairly the legal system must
avoid confusion in its communication of the laws
obligations.
Noncompliance is safer- the greater danger can be one to
which the actor violating the statute would be exposed.
The danger averted can be one relating to third parties.
MARTIN v. HERZOG (driving your horse and buggy without lights)
h. An omission or failure to perform an act required by
statute constitutes negligence per se- negligence in itself,
conduct that is deemed to be negligent as a matter of law
without requiring proof that the actor breached a duty of
care
i. When a statute requires an affirmative action, the failure
to perform that action constitutes a violation of a legal
duty. It is negligence per se. The violator may be liable for
20
damages, but only if the omission is the proximate cause
of the injury. Thus, with the headlight statute, Martin’s
decedent will only be liable for contributory negligence for
failing to use headlights if that omission was the proximate
cause of the disaster. If Martin’s decedent had been using
the headlights as required, Herzog likely would have seen
his buggy in the night and would have been able to avoid
the fatal accident. Thus, the decedent’s failure to use lights
constitutes negligence per se. It does not matter that
Martin’s decedent is not the defendant.
j. Violating a statute may be contributory negligence just as
it may be negligence. Herzog is not liable for damages
because Martin’s decedent engaged in contributory
negligence by violating the headlight statute
k. Proof of an unexcused statutory violation is conclusive
proof of the violators breach of duty
THOMAS v. McDONALD (where are your hazard flares big ole truck)
a. A defendant’s violation of a state statute constitutes negligence per
se when the plaintiff is injured as a result of defendant’s conduct.
b. It is reversible error for a trial court to refuse to instruct the jury that a
defendant’s violation of a state statute constitutes negligence per
se when the plaintiff is injured as a result of defendant’s violative
conduct.
c. To successfully apply the negligence per se theory a plaintiff must show
that
A. He is a member of the class that the statute was designed to
protect AND
B. Suffered the harm that the law was designed to prevent
WAWANESA MUTUAL INSURANCE CO. v. MATLOCK (kids don’t smoke! Ohh wrong statute!)
a. The doctrine of negligence per se does not apply, even though a statute has been
violated, if the plaintiff was not in the class of persons designed to be protected and did
not suffer the type of harm sought to be prevented by the law.
b. The doctrine of negligence per se does not apply if the plaintiff was not in the class of
persons designed to be protected and did not suffer the type of harm sought to be
prevented by the law. Olsen v. McGillicuddy, 15 Cal. App. 3d 897, 902-03 (1971). Just
because a statute has been violated does not necessarily mean that a defendant is liable
for all damage that may be ultimately traced back to the violation. Here, the particular
statute relied upon by the trial judge makes it illegal to furnish tobacco to minors.
However, the purpose of the statute is focused on the negative health aspects of
21
cigarette and tobacco use. More specifically, the statute seeks to prevent youths’ early
addiction to tobacco. Mangini v. R.J. Reynolds Tobacco Co., 875 P.2d 73 (Cal. 1994). The
statute has nothing to do with fire suppression. The judgment of the trial court is
reversed, and the case is remanded with directions to enter judgment in favor of
the Matlocks.
SIKORA v. WENZEL
a. A landlord’s failure to comply with state building codes
constitutes negligence per se, but such liability may be
excused by the landlord’s lack of actual or constructive
notice of the defective condition.
b. In Ohio, a landlord’s failure to comply with state building
code laws constitutes negligence per se. However, such
liability may be excused by the landlord’s lack of actual or
constructive notice of the defective condition. In Shroades
v. Rental Homes, Inc., 427 N.E.2d 774 (Ohio 1981), the
court set forth the principle that landlords are
negligent per se and thus subject to liability for violations
of the OBBC for a failure to make required repairs.
c. Courts consistently refuse to impose strict liability in the
context of landlord liability for defective conditions, based
on the rationale that some kind of notice element may
need to be considered. Instead, most jurisdictions with
landlord-tenant laws impose negligence per se. A lack-ofnotice excuse applies if the actor “neither knows nor
should know of any occasion or necessity for action in
compliance” with a statute. Restatement (Second) of
Torts, § 288A(2)(b), cmt. f. Here, both parties agree that
Wenzel had no knowledge of the deck defect at any point
prior to its collapse. The judgment of the court of appeals
is reversed.
d. The reasonableness of the defendants conduct protected
the defendant from liability based on the statutory
violation.
IV.
Industry Custom
22
I.
II.
If a litigant can show that an industry as a whole has a customary way of doing
something that proof could support a number of conclusions. The customary
way is probably affordable, well
Rst, 13- An actors compliance with custom of the community or of others in like
circumstances, is evidence that the actors conduct is not negligent but does not
preclude a finding of negligence
a. An Actos departure from the custom of the community or
of others in like circumstances in a way that increases risk
is evidence of the actors negligence but does not require a
finding of negligence
I. the actor is entitled to present to the jury evidence
showing that the actor complied with custom, the
other party is free to present other evidence,
including evidence nearing on the factors of
negligence and in doing so seek to establish that
the actor’s conduct lacks reasonable care.
b. Evidence that the actor has complied with custom in
adopting certain precautions may bear on whether there
were further precautions available to the actor, whether
these precautions were feasible, and whether the actor
know or should have know of them. If the actors conduct
represents the custom of those engaging in a certain line
of activity, the jury should be aware of this for it cautions
the jury that its ruling on the particular actors negligence
has implications for large numbers of other parties.
c. The actors proof of compliance with custom does not
conclusively show that the actor was free of negligence in
not adopting further precautions.
d. Departure from custom is relevant only if that departure
seemingly results in an increase in risk
e. Widespread reliance on custom- a custom is such that it
induces general reliance by virtually all those participating
in the activity i.e.. driving on the right
II.
Exceptions to customs (from ludman)
a. Court should not admit a custom into evidence if the
custom does not extend to the type of conduct at issue in
the litigation
b. If the act itself is clearly careless or dangerous
THE T.J. HOOPER (stay on your tug boat or watch the dominoes fall)
23
a. A business may be liable for failing to adopt new technology, even if the industry has
not widely adopted it, if the use of the technology constitutes reasonable prudence.
b. A business may be liable for failing to adopt new technology, even if the industry has
not widely adopted it, if the use of the technology constitutes reasonable prudence. An
industry as a whole may at times be lagging behind, but this is no excuse for the failure
to take reasonable precautions.
c. Custom and the learned hand formulaa. If the custom is cheap do it to avoid danger
LUDMAN v. DAVENPORT ASSUMPTION HIGH SCHOOL (baseball nets or broken noses?)
a. A party may introduce evidence of custom to demonstrate that the party did not act
negligently, particularly if there are no statutes defining proper behavior.
b. Evidence of custom is generally admissible on the issue of negligence. A party’s
compliance with the custom of the community is evidence that the party’s conduct was
not negligence, though this does not preclude a finding of negligence.
c. Courts should not admit a custom into evidence if the custom does not apply to the type
of conduct at issue
d. In this case, the trial court erred in not permitting Assumption to present evidence of
other dugouts. There are no statutes requiring Assumption to build its field in a
particular manner. Additionally, there is no reason why Assumption cannot present
evidence of custom just because Ludman utilized expert testimony. The testimony
Assumption sought to present was sufficient enough for the jury to consider whether
Assumption might not be negligent due to the custom of the community.
e. Evidence of custom is not conclusive. It is up to the jury to weigh the evidence of custom
against the other evidence in the record and ultimately determine the issue of
negligence based on the facts and circumstances of the case
WAL-MART STORES, INC. v. WRIGHT (get the rules right! Youre negligent!)
a. In a negligence action, the appropriate standard to be applied to a defendant’s conduct
is whether he objectively exhibited ordinary care that a reasonably prudent person
would have exercised under like circumstances, rather than a subjective standard held
by the particular defendant.
b. Several of the documents detailed how Wal-Mart employees were to respond to spills
and other floor hazards. At trial, the manual was admitted into evidence. At the close of
all the evidence, Wright submitted a jury instruction that said Wal-Mart’s rules, policies,
practices, and procedures were evidence of the degree of care deemed by Wal-Mart to
be ordinary care. Wal-Mart objected to the proposed instruction and argued that it
should be left to the jury to determine what is, and is not, ordinary care
c. In a negligence action, the appropriate standard of care to be applied to a defendant’s
conduct is whether the defendant objectively acted similarly to how a reasonably
prudent person would have acted under like circumstances. The subjective ordinary
24
care standard held by the defendant is immaterial. Wal-Mart correctly argued that the
trial court erred when it gave the instruction at issue, because it allowed jurors to apply
Wal-Mart’s subjective view of the standard of care that should be applied when
responding to spills and other floor hazards, rather than an objective standard of
ordinary care. Wal-Mart’s rules and policies may have been established for a number of
reasons having nothing to do with safety and ordinary care.
d. A jury may learn about such rules but must not treat the violation as equivalent to
unreasonable conduct. A jury could perhaps use information about a defendants own
rules to support a conclusion that the actions required by the rules were practical or
were known to the defendant at the time of the plaintiff’s injury
V.
Res Ipsa Loquitur
I. Circumstantial evidence is information a factfinder may use to make inferences
about past events. Tort law recognized some uses of circumstantial evidence as
proof of breach with the phrase “res ipsa loquitur” – the thing speaks for itself
II.
When the plaintiff relies on the re ipsa loquitur doctrine the jury will be allowed
to conclude that the defendant was negligent even though the plainitff may not
have introduced detailed or direct evidence about the precise shortcomings of
the defendants actions
III.
Res ipsa loquitur elements:
a. The type of injury was usually associated with negligence*
b. The defendant had exclusive control of whatever caused
the injury
c. The plaintiff had made no causal contribution to the harm
d. The defendants access to information about the event was
superior to the plaintiffs
IV. Rst 17, The factfinder may infer that the defendant has been negligent when the
accident causing the plaintiffs harm is a type of accident that ordinarily happens
as a result of the negligence of a class of actors of which the defendant is the
relevant member
I. Implies that the court does not know and cannot find out what actually
happened in the individual case. instead the finding of likely negligence is
derived from knowledge of the causes of the type or category of
accidents involved.
II.
Two step inquiryI.
Whether the accident is of a type that usually happens because of
negligence
II.
Whether the instrumentality inflicting the harm was under the
exclusive control of the defendant
a. Unsatisfactory for two reasons-
25
I.
III.
IV.
V.
The test is sometimes indeterminate since there
may be several instruments that could be deemed
the cause of the plaintiffs injury
II.
Exclusive control functions poorly as a proxy
*Another two step formulation accepted by some courts, is that
RIA applies if the type of accident usually happens because of
negligence and if the negligence is usually that of the defendant
rather than of some other party
In some cases the jury can derive its understanding of the
circumstances that cause a particular type of accident from the
general experience and common sense of the community.
Found applicable only if the plaintiff has offered evidence tending
to negate the presence of causes other than the defendants
negligence. That is, if the type of accident is sometimes caused by
the defendant’s negligence but is more frequently brought about
by other causes that are unrelated to the defendant negligence. Ie
product malfunction 6 months after being bought
Similar
III.
Cant say if the right elements are satisfied then the following legal
consequences depends on the jurisdiction
VI. Permissible inference- go to the jury, if no reasonable juror finds
negligence than lose at the motion stage NO SHIFT
VII.
Mandatory Reputable presumption- get a jury instruction that
tells the jury must presume negligence unless defendant
overcomes presumption with affirmative evidence that the
defendant did nothing wrong BURDEN SHIFTING
Basic conditions
I.
One step test in order for permissive inference more likely than
not an accident by the defendant- most likely due to negligence
by the defendant – first goal of actors just want to get to 51%
BYRNE v. BOADLE (barrels are falling!!!!)
a. If injury of a type that does not typically occur without
negligence does occur, negligence is presumed from the
mere fact of the occurrence.
b. Thus, negligence on behalf of Boadle is presumed. Boadle
presented no evidence rebutting this presumption, and
the judgment for Byrne is affirmed. If injury of a type that
does not typically occur without negligence does occur,
negligence is presumed from the mere fact of the
occurrence. The plaintiff does not have the initial burden
26
of showing that the act could not occur without
negligence. However, if any facts surrounding the incident
occur that are inconsistent with negligence, it is the
defendant’s responsibility to prove them. Barrels of flour
typically do not roll out of the top stories of warehouses
without some sort of negligence.
SHULL v. B.F. GOODRICH CO. (my husband doesn’t satisfy me because a truck dock fell on him)
a. The doctrine of res ipsa loquitur is applicable if: (1) the injuring
instrumentality was under the defendant’s exclusive control, and (2) the
accident is one that in the ordinary course of things does not happen if
the party in control of the instrumentality uses proper care.
b. In Indiana, the doctrine of res ipsa loquitur is applicable if the injuring
instrumentality is shown to have been under the exclusive control of the
defendant. Additionally, it must be shown that the accident was one that,
in the ordinary course of things, would not normally happen if those in
control of the instrumentality used proper care. Generally, the doctrine
of res ipsa loquitur would have allowed the jury to attribute Shull’s injury
under unexplained circumstances to Goodrich’s negligence, based on
evidence from which a reasonable person could conclude, or infer, that it
is more likely than not that the accident was caused by Goodrich. The
inference may be based on common knowledge or testimony provided by
witnesses or experts. Here, a Goodrich witness admitted that dock-plates
historically were only serviced after an issue was discovered. The same
witness testified that Goodrich had experienced previous malfunctions
with the dock-plates and that the specific dock-plate that caused Shull’s
injuries was likely faulty and should have been replaced. From such
testimony, it could be reasonably inferred that it was more likely than not
that the accident would not have ordinarily occurred in the absence of
Goodrich’s negligence.
DOVER ELEVATOR CO. v. SWANN
a. Sufficient direct evidence of negligence by the defendant will preclude
application of the doctrine of res ipsa loquitur, which allows an inference that
the defendant was negligent.
b. Expert testimony- the mere occurrence of an accident under particular
circumstances does raise such an inference
II.
Basic Cause-in-Fact: The But-for Test
27
III.
IV.
a. Cause in fact- requires proof that as a matter of historical
and physical fact it is more likely than not that the
defendants conduct was a cause of what happened to the
plaintiff
b. Proximate cause- sometimes treats a defendants conduct
as too remote from a plaintiffs injury to justify holding the
defendant liable
But-for Test
a. Whether the plaintiff would have been free from harm but
for the defendants negligent conduct
I. Treats one occurrence as a cause of a second
occurrence if the first occurrence was necessary or
essential for the happening of the second
occurrence
b. Elements
I. How the plaintiffs injury occurred AND
II.
To compare that scenario with what the trier of
fact thinks would have happened if the defendant
conduct had been free from negligence
Rst, 26 Factual Cause
a. Tortious conduct must be a factual cause of harm for
liability to be imposed. Conduct is a factual cause of harm
when the harm would not have occurred absent the
conduct.
b. An act is a factual cause of an outcome if in the absence of
the act the outcome would not have occurred. With
recognition that there are multiple factual cause of an
outcome if in the absence of the act the outcome would
not have occurred.
c. The existence of other causes of the harm does not affect
whether specified tortious conduct was a necessary
condition for the harm to occur.
d. Ask- what would have occurred if the actor had not
engaged in the tortious conduct.
e. Multiple sufficient causes- each of two separate causal
chains sufficient to bring about the plaintiffs harm thereby
rendering neither a but for cause.
CAY v. STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT(fell over
the bar)
28
a. In a negligence action, the plaintiff must show by a preponderance of the evidence that
the defendant’s action or inaction was a cause in fact of the plaintiff’s injuries.
b. the proof would have been sufficient if the Cays had showed that it was more probable
than not that the DOTD’s negligent conduct resulted in Keith’s death. However, there
was no direct evidence of how exactly Keith died. Rather, the evidence presented was
circumstantial. Generally, cause in fact is a “but for” inquiry that tests whether the
injury or death would not have occurred but for the defendant’s negligent conduct.
Here, the evidence failed to conclusively establish by a preponderance that “but for” the
DOTD’s failure to build the guardrails to the height required by the AASHTO standards,
Keith would not have fallen over and died. The evidence suggests that Keith was
intoxicated and moved suddenly at a sharp angle toward the railing, for some unknown
reason, and fell over. Certainly the absence of higher guardrails increased the risk and
was a significant factor in the DOTD’s failure to prevent Keith’s fall, but Keith’s fault was
far greater in causing his own demise
c. The plaintiff claims require the finder of fact to reach conclusions on two topics
1. What happened to the decedent
2. Whether the alleged negligent conduct by the defendant was a
necessary element for what happened to the plaintiff
d. The plaintiff must prove by a preponderance of the evidence that higher railings would
have prevented the harm to Cay that more likely than not the railing height was a cause
in fact
LYONS v. MIDNIGHT SUN TRANSPORTATION SERVICES, INC.(pulled in front of me )
e. The standard of care required is that of a reasonably prudent person in
same or similar circumstances.
f. Midnight is not liable because Jette’s negligent driving was not the legal
cause of Lyons’ death. The standard of care required is that of a
reasonably prudent person in same or similar circumstances.
g. It is not useful to continue instructing juries in the “sudden emergency
doctrine,” which states that a person confronted with a sudden and
unexpected peril, not resulting from that person’s own negligence, is not
expected to exercise the same judgment and level of care the law
requires of a person in calmer and more deliberate moments, but rather
must exercise the level of care of a reasonable person experiencing such
peril. This doctrine adds nothing to the general rule of law that a person
must always exercise the level of care of a reasonable person in the same
or similar circumstances, as that rule encompasses circumstances which
include “sudden and unexpected peril.
h. Thus, this doctrine should not be used unless a court finds that the
particular and peculiar facts of a case warrant more explanation of the
29
i.
II.
standard of care than is generally required. The trial court should not
have instructed the jury about the sudden emergency doctrine, but the
jury’s finding that Jette was negligent without causing Lyons’ death does
not depend on the instruction given.
The court stated that the defendants negligence was not a proximate
cause, referring to testimony that the accident could have occurred even
if Jett had been driving the speed limit.
Alternatives to the But-for Test
I. A rigorous application of the but for test would prevent a plaintiff from
recovering in some cases where most people would believe that a defendants
actions actually did harm the plaintiff. These cases may involve multiple actors
where the conduct of each actor might have been sufficient to cause the harm.
Another example is when some but not all of the defendants could have caused
a plaintiffs injury but the plaintiff cannot show who caused it- alternative liability
& market share liability
B. Multiple Sufficient Causes
a. Asking whether the plaintiff would have been all right if a particular actors
conduct had been different would lead to the answer that the plaintiff would still
have been injured
b. Once the plaintiff demonstrates that each of the defendants acts would have
been sufficient to cause the harm, the defendant must offer some type of
evidence to show why it should not be considered a cause.
c. Rst, 27, If multiple acts occur, each of which under but for cause alone would
have been a factual cause of the physical harm at the same time in the absence
of the other acts each act is regarded as a factual cause of the harm
A. Whenever there are two or more competing causes, each of which is
sufficient without the other to cause the harm and each of which is in
operation at the time the plaintiffs harm occurs.
B. When two tortious multiple sufficient causes exist to deny liability would
make the plaintiff worse off due to multiple tortfeasors than would have
been the case if only one of the tortfeasors had existed
C. Rst, 28, Burden of Proof
a. The plaintiff has the burden to prove that the defendants tortious conduct was a
factual cause of the plaintiffs harm
b. When the plaintiff sues all of multiple actors and proves that each engaged in
tortious conduct that exposed the plaintiff to a risk of harm and that the tortious
conduct of one or more of them caused the plaintiffs harm but the plainitff
cannot reasonably be expected to prove which actor or actors cause the harm,
30
the burden of proof, including both production and persuasion on factual
causation is shifted to the defendants
c. the plaintiff has the burden of proof on factual causation, one of the elements of
a prima facie case. Consistent with the burden of proof in civil actions, plaintiff
must demonstrate by a preponderance of the evidence that a defendant's
tortious conduct was a factual cause of harm. This burden consists of the two
elements of the burden of proof: the burden of production, which requires the
introduction of sufficient evidence to permit a rational factfinder to make a
determination that a defendant's tortious conduct was a factual cause of the
harm, and the burden of persuasion, which requires that the factfinder be
persuaded from the evidence that factual causation more likely than not exists.
d. Reasonable inference and speculation in proving causation. To isolate and
determine whether an act was a factual cause of an outcome requires
consideration of whether that outcome would have occurred without the act's
having taken place. As philosophers have taught, factual cause is not a
phenomenon that can be seen or perceived; instead, it is an inference drawn
from prior experience and some, often limited, understanding of the other
causal factors—the causal mechanism—required for the outcome. Thus, all
causal determinations require inferential reasoning. In some cases, the inference
is quite powerful, as when a pilot, who failed to obtain an adequate briefing
about the weather, flies into a storm and crashes, killing the passengers
KINGSTON v. CHICAGO & NORTHWESTERN RAILWAY CO. (two fires one RR one mystery and
one burnt house)
a. When two or more human entities both proximately cause injury to a
plaintiff, and only one is identified, the plaintiff may recover the full
amount of damages suffered from the one known wrongdoer.
b. The northeast fire was started by the railroad, and this is enough to hold
that entity fully liable for the entire amount of Kingston’s damages. When
two or more human entities both proximately cause injury to a plaintiff,
and only one is identified, the plaintiff may recover the full amount of
damages suffered from the one known wrongdoer. The known
wrongdoer may not be held fully liable, however, when the full extent of
injury was also proximately caused by an “act of God” or natural disaster
c. In the case of the two fires which destroyed Kingston’s property, one was
conclusively started by the railroad. There is no evidence suggesting that
the other fire could have been started by anything other than a human.
No weather conditions or acts of God were reported. Thus, it can be
assumed with “moral certainty” that the property damage was caused by
two tortfeasors; one known and one unknown. When two tortfeasors are
both shown to be the proximate cause of an injury, either may be held
31
liable for the full amount of the injury. Thus, the railroad may
appropriately be held liable for all of Kingston’s property damage.
d. Multiple sufficient causes prevents each of the two tortfeasors from
escaping liability by blaming the other. This doctrine removes the
obligation to prove that each defendants act was a but for cause
FORD MOTOR CO. v. BOOMER (asbestos car fixer!)
a. The negligent actions of two or more defendants that concurrently and sufficiently
cause a plaintiff to become injured may result in each defendant being held liable for
the harm caused.
b. Generally, courts utilize the “but for” analysis to determine whether a defendant’s
negligent conduct is the proximate cause of a plaintiff’s injuries. The test provides that a
defendant caused the plaintiff’s injury if the plaintiff would not have been injured “but
for” the defendant’s conduct.
c. Instead, §§ 26-27 of the Restatement provides that if concurrent negligent acts are
performed by more than one defendant, each defendant may be held responsible. Proof
of whether a particular defendant’s negligent conduct is a sufficient cause of a plaintiff’s
mesothelioma may be established by competent medical testimony indicating whether,
based on the timing, the exposure could have caused the cancer
d. However, if the evidence shows that exposures to asbestos occurred after a particular
plaintiff developed cancer, the defendants cannot be held liable. Here, the trial court
committed reversible error when it improperly instructed the jury using the “substantial
contributing factor” language. The judgment of the trial court is reversed, and the
matter is remanded for further proceedings.
e. The substantial factor test can limit an actors liability since the word may in the rule
allows a court to find that some actors whose conduct was independently sufficient to
cause the harm may not be liable for the harm caused.
f. The court rejects the substantial factor approach and instead acknowledges that it
might be possible for a jury to assess the relative importance or substantiality of each
contributing factor.
Add step where if one does not occur the harm would still occur
Want 27 to avoid what torts is intended
If fire is started by person in one and unknown by god in other
The thing preempted is the second fire and the thing preempted is the thing going to burn but
preempted when the first fire burnt down the house- coming first=preemptive second fire =
duplicative cause, already happened. Duplicative factor- wouldve caused something but got
preempted by the other casue not even a cause
Since the a burnt first before b started the a fire was the preemptive cause the b fire was a duplicative
factor----even if person neg started b fire they do not owe anything because cannot est their neg and
your harm
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Not who did it- everyone did it – which is suff
- Everyone a cause
If see two fires and coming to burn down house
g.
D. Alternative Liability
a. In multiple sufficient causes cases it is possible that conduct be each of the
defendants could have caused the plaintiffs harm
b. The alternative liability theory exposes an actor to liability even where there is a
possibility that the plaintiffs harm was entirely caused by someone else.
SUMMERS v. TICE (shot me in the eye which one did it?!?!)
a. Two wrongdoer case of alternative liability through cause in fact.
b. Under the doctrine of alternative liability, two independent tortfeasors may be held
jointly liable if it is impossible to tell which one caused the plaintiff's injuries, and the
burden of proof will shift to the defendants to either absolve themselves of liability
or apportion the damages between them.
c. Both Tice and Simonson may be held fully liable for the extent of Summers’ injuries,
and should determine a fair apportionment of damages among themselves. When
two defendants not acting together both serve as a proximate cause of a plaintiff’s
injuries, both may be held liable for the full extent of the damage and the burden of
proof shifts to each defendant to work out a fair apportionment of damages among
themselves. When it is impossible to know which defendant was the actual cause of
an injury, both must be held liable to protect the plaintiff. Otherwise, the plaintiff
risks not receiving full recovery for his injuries. The defendants are usually in a much
better position than the plaintiff to present evidence to exonerate themselves, and
thus should bear the burden of working out a fair apportionment of damages. Both
Tice and Simonson negligently fired guns in the direction of Summers, and it is
impossible for Summers to know who actually hit him and caused his injuries.
However, this fact should not prevent Summers from being made whole. The best
way to protect Summers is to issue judgment against both Tice and Simonson, and
allow the two defendants to present additional exculpatory evidence for themselves
in later proceedings.
BURKE v. SCHAFFNER
a. The doctrine of alternative liability requires a plaintiff to prove that two
or more defendants: (1) breached a duty owed to the plaintiff; (2)
33
committed a tortious act; and (3) as a proximate result of at least one of
the defendants’ conduct, the plaintiff was injured.
b. In Ohio, the doctrine of alternative liability requires a plaintiff to prove
that two or more defendants: (1) breached a duty owed to the plaintiff;
(2) committed a tortious act; and (3) as a proximate result of the conduct
of at least one of the defendants, the plaintiff was injured. The doctrine
does not apply in cases where there is proof that only one defendant may
have been at fault. The Burkes’ theory was that either Schaffner or
Malone stepped on the accelerator. The Burkes further argued that
because Malone stated in his deposition that he did not depress the
accelerator, it was left to Schaffner to testify that she was not the
negligent party. Because Schaffner failed to testify, the Burkes claim that
their case was sufficiently proved and they should have been awarded a
directed verdict by the trial court. However, the doctrine of alternative
liability requires that all individuals believed to have committed the
tortious act against a plaintiff be named as defendants in the litigation.
The reason for the requirement is to prevent a tortfeasor from escaping
liability simply because the nature of the defendants’ conduct and the
resulting injury to the plaintiff made it difficult or impossible to prove
which defendant caused the harm.
I.
Duty and Proximate Cause
I. Role of Duty and Proximate Cause
I. Tort law devotes considerable attention to
separating the many harms a defendants conduct
causes into two categories
I. Harms the defendant should be
required to pay for and
II.
Harms whose costs the victims
should bear themselves
II.
Tort law limits the liability of defendants with
policy based doctrines related to both the duty and
the cause elements
PALSGRAF v. LONG ISLAND RAILWAY CO.
a. Majority opinion by Justice Cardozo decided that regardless of causation issues a lack of
duty owed by the defendant to the plaintiff and should resolve the case
b. Minority (rst view) by Justice Andrews rejected this duty analysis and proposed a range
of approaches to proximate cause. The dissent explores the main dilemmas of
proximate cause doctrine.
34
c. An analysis of the majority and dissenting opinions highlights the fact that limiting the
range of a defendants liability can be accomplished through doctrines related to either
duty or causation
d. Cardozo- Negligence liability is predicated on the breach of a duty owed by the
defendant to the plaintiff. The scope of a defendant's duty is defined by the scope of the
reasonably foreseeable harm resulting from the defendant's actions. If someone is
outside of the range of the reasonably foreseeable consequences of the defendant's
actions, the defendant generally does not owe that person a duty, and the person
therefore may not bring a negligence action against the defendant. The range of
reasonably foreseeable harm may be a question either for the court or for a jury to
decide. Moreover, with regard to identifying the appropriate scope of negligence
liability, a plaintiff may not sue on behalf of the risk of injury or bodily harm perpetrated
against another; rather, the plaintiff may only recover for harm committed against the
plaintiff's own person or property. Here, the railroad employees were attempting to
help the man with the package safely board the train. The man suffered no bodily injury
in the process, and to the extent he suffered any harm at all, it was only the damage to
the package. If anyone could potentially bring a negligence action against the railroad, it
would be the man, but he is not doing so. Rather, Palsgraf is bringing an action for her
own bodily harm based on the events set in motion when the package dropped.
However, this harm to Palsgraf was not reasonably foreseeable. From the outside, the
package gave no indication that it contained fireworks; it looked harmless. Given the
package's appearance, even if a railroad employee had knowingly and deliberately
thrown the package down, this could not be seen as an unlawful act that would put
Palsgraf in danger. The consequences should not be more severe for the employee's
unintentional conduct. Because the harm to Palsgraf was outside the realm of
reasonably foreseeable consequences from the railroad employees' actions, there is no
basis for negligence liability in this matter
e. Andrews- The railroad employee negligently caused a package full of explosives to fall
from the arms of a man he was helping. Negligence is an act or omission which
unreasonably does or may affect the rights of others. It is incorrect to state that one
only has a duty to protect some individuals from the consequences of wrongful acts.
f. One does not only have a legal duty to protect those in a nearby “zone of danger” from
harmful acts; rather, one has a duty to protect society at large. Phrased differently,
everyone owes the general public the duty of refraining from acts that may
unreasonably threaten the safety of others. However, this is not enough to support a
theory of recovery for damages against a negligent defendant. To recover damages, the
defendant’s negligent act must have been the proximate cause of the plaintiff’s injury.
a. This means that there is a natural and continuous sequence between cause and
effect, with few if any intervening causes. In the case of Palsgraf’s injuries, she
was standing on the train platform when the railroad employee negligently
dropped the package. But for his dropping the package and it exploding, Palsgraf
35
would not have been injured. There is thus a natural and continuous sequence of
events between dropping the package and the injury, with no intervening
events.
b. Nine factors to be considered in legal causation
i. But for cause
ii. Natural and continuous sequence between cause and effect
iii. Substantial factor
iv. Directness without too many intervening events
v. Attenuation
vi. Likelihood of injury
vii. Foreseeability
viii. Remoteness in time
ix. Remoteness in space
c. Andrews considered palsgraf to be a but for cause of the harm to be a direct
cause with only one intervening event, occurring in a natural and continuing
sequence and a substantial factor. The harm was foreseeable and not too
remote in time or space
d. Andrews views foreseeability as being evaluated on the basis of information
available after the defendant has acted
e. Everyone owes a duty to the world at large so liability depends on whether the
defendants negligence proximately caused the plaintiffs harm
f. Rst, 6, says that ordinarily there is a duty and courts may proceed directly to the
question of whether the defendant was negligent whether the negligence was a
factual cause of the plaintiffs harm and whether the harm was within the scope
of the defendants liability
III.
Duty
I.
Rst, 7a An actor ordinarily has a duty to exercise reasonable care when the
actor’s conduct creates a risk of physical harm
a. Actors engaging in conduct that creates risks to others have a duty to
exercise reasonable care to avoid causing physical harm
b. Two different legal doctrines for withholding liability
I.
No duty rules- matter of law decided by the courts
II.
Scope of liability doctrines(prox cause) – question of fact for the
factfinder
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II.
c. Courts sometimes are influenced by the relationship between the actor
and the person harmed
d. Procedural aspects of duty determination- A defendant has the
procedural obligation to raise the issue of whether a no duty rule or some
other modification of the ordinary duty of reasonable care applies in a
particular case
e. Comment j- foreseeable risk is an element in the determination of
negligence. In order to determine whether appropriate care was
exercised the factfinder must assess the foreseeable risk at the time of
the defendants alleged negligence. The extent of foreseeable risk
depends on the specific facts of the case and cannot be usefully assessed
for a category of cases; small changes in the facts may make a dramatic
change in how much risk is foreseeable. Thus courts should leave such
determinations to juries unless no reasonable person could differ on the
matter.
Rst, 7b In exceptional cases, when an articulated countervailing principle or
policy warrants denying or limiting liability in a particular class of cases, a court
may decide that the defendant has not duty or that the ordinary duty of
reasonable care requires modification
HEGYES v. UNJIAN ENTERPRISES, INC. (you killed my unborn not even thought of child)
a. A negligent motorist who injures a woman does not owe a legal duty of
care to the subsequently conceived child of the injured woman.
b. Generally, a negligent motorist who injures a woman does not owe a
legal duty of care to the subsequently conceived child of the injured
woman. Not all injuries are compensable. There must be some link or
nexus between the negligent conduct and the subsequent injuries
sustained by the plaintiff.
c. Moreover, the injuries sustained by the plaintiff must have been a
foreseeable result of the defendant’s negligent conduct.
d. However, when a woman sustains injuries from a car accident and two
years later becomes pregnant with a child, it could not reasonably have
been foreseen that the child would sustain injuries stemming from her
mother’s car crash. Of course, it was possible that Hegyes could become
pregnant, but the creation of a legal duty requires more than mere
possibility of occurrence, because through hindsight, everything is
foreseeable.
e. Found that a person in the position of the negligent driver could not
reasonably anticipate that his bad driving would cause in injury to a child
37
born more than two years later even though the drivers conduct was a
cause in fact of that injury.
f. The entire chain of causation is irrelevant.
DYKEMA v. GUS MACKER ENTERPRISES, INC. (lighting strike and bbal game sue the guy in
charge )
a. No special relationship exists between an organizer of a free event and a spectator
that gives rise to a legal duty owed by the organizer to warn the spectator of an
approaching thunderstorm.
b. Generally, there is no duty to aid or protect another individual. However, such a
duty may arise when a special relationship exists between the parties, such as
innkeeper-guest, employer-employee, landlord-tenant, or doctor-patient. The
rationale behind the special relationship exception is based on the element of
control where one individual entrusts himself to the control and protection of
another, with a consequent loss of control to protect himself
c. To determine whether a special relationship exists between the parties, courts
generally balance: (1) the interests involved, (2) the severity of the risk, (3) the
burden upon the defendant, (4) the likelihood of occurrence, and (5) the nature of
the parties’ relationship.
d. The analysis of many societal considerations would have to be made in order to see
whether even in the case of a special relationship imposing duty would be sensible
a. Rst, 40 duty based on a special relationship with another
i. An actor in a special relationship with another owes the other a duty
of reasonable care with regard to risks that arise within the scope of
the relationship
GRAFF v. BEARD (get drunk at my house but don’t drive and sue me later)
a. A social host may not be held liable for injuries to third parties caused by intoxicated
adult guests.
b. Generally, there is no common law duty on a social host to prevent a guest from
driving after consuming alcohol provided by the host. Moreover, under Texas law,
one person is under no legal duty to control the conduct of another, absent the
existence of some special relationship. However, under the court of appeals ruling, a
court could impose liability upon a social host who fails to prevent an intoxicated
guest from leaving the host’s home to drive home and subsequently causes injuries
to a third party.
c. Whether to impose a new common law duty involves complex considerations of
public policy, such as social, economic, and political issues, as well as factors such as
the extent of the risk involved and the foreseeability and likelihood of injury
weighed against the social utility of the actors’ conduct, among others.
d. When analyzing duty in regards to social factors
38
a. Foreseeability of the injury
b. Utility of an actors conduct
c. Burden of prevention
KUBERT v. BEST stop texting and driving me boiiii
a. An individual sending a text message owes a limited duty of care to a third party when
the sender has actual knowledge or special reason to know, from prior experience, that
the recipient of the message will view the text while driving and, as a result, may create
a foreseeable risk of harm to the third person.
b. If the driver does so and looks away from the road, thereby causing a foreseeable
collision, the sender may be held liable for injuries sustained by the third person.
Generally, whether a person owes a duty of care toward another involves an analysis of
several factors, including the relationship between the parties, the nature of the risk,
the opportunity and ability to exercise care, and the public interest in the proposed
solution.
c. Certainly, it is the primary duty of a driver to obey the law and drive responsibly.
Further, it is generally not foreseeable that every recipient of a text message who is
driving will be distracted by the text. Therefore, the sender of the text message must
know or have special reason to know that the driver will be actually distracted and look
away from the road to be held liable to a resulting accident.
d. When one party questions whether the defendant had a duty to the plaintiff many
courts consider whether the type of harm that occurred and the type of person that was
harmed were reasonably foreseeable to the defendant consistent with the approach in
Palsgraf.
e. Foreseeability of the risk of harm is the foundational element in the determination of
whether a duty exists
f. Common law process by which the court decides whether a legal duty of care exists to
prevent injury to another
a. Whether a person owes a duty of reasonable care toward another turns on
whether the imposition of duch duty satisfies an abiding sense of basic fairness
under all of the circumstances in light of considerations of public policy. That
inquiry involves identifying weighing and balancing several factors:
i. The relationship of the parties
ii. The nature of the attendant risk
iii. The opportunity and ability to exercise care
iv. The public interest in the proposed solution
g. Limited duty imposed on the sender is supported by the full duty analysis
a. Identifying
b. Weighing and balancing the “relationship of the parties”
c. Nature of the attendant risk
d. Opportunity and ability to exercise care
39
e. Public interest in the proposed solution
IV.
V.
Proximate Cause/Scope of Liability- question of fact
I. Proximate cause expresses the laws policy judgment that in some cases it would
be unfair to make defendants pay for all of the harms associated with their
conduct
II.
Reflects the idea that the defendants conduct and the plaintiffs harm must have
a connection that is reasonably close in order to justify imposing liability on the
defendant
III.
Directness test- treats a defendants conduct that is a cause in fact of a plaintiff
harm as a proximate cause if there are no intervening forces between the
defendants act and the plaintiffs harm
IV. Substantial factor test- treats a defendants conduct as a proximate cause of a
plaintiffs harm if the conduct is important enough compared to other causes of
the harm to justify liability
V. Foreseeability test – treats a cause in fact as a proximate cause if the type of
accident that occurred was reasonably foreseeable
VI. Risk standard – imposes liability only for injuries within the scope of the risk that
supported an initial finding of an actors negligence
VII. *In almost all cases courts treat proximate cause as a question of fact for the jury
a. Instructed- a proximate cause is one which in natural and continuous
sequence unbroken by any efficient intervening cause produces the
injury and without which the result would not have occurred
Rst, 29, An actors liability is limited to those harms that result from the risks that made
the actors conduct tortious- use “risk standard” to define the scope of a defendants
liability
I. As mentioned in the Special Note at the outset of this Chapter, the term
“proximate cause” is a poor one to describe limits on the scope of liability. It is
also an unfortunate term to employ for factual cause or the combination of
factual cause and scope of liability. Even if lawyers and judges understand the
term, it is confusing for a jury. Courts should craft instructions that inform the
jury that, for liability to be imposed, the harm that occurred must be one that
results from the hazards that made the defendant's conduct tortious in the first
place. Employing the term “proximate cause” implies that there is but one
cause—the cause nearest in time or geography to the plaintiff's harm—and that
factual causation bears on the issue of scope of liability. Neither of those
implications is correct. Multiple factual causes always exist, see § 26,
Comment c, and multiple proximate causes are often present. An actor's tortious
conduct need not be close in space or time to the plaintiff's harm to be a
proximate cause. And proximate cause is only remotely related to factual
40
VI.
causation. Thus, the term “causation” should not be employed when explaining
this concept to a jury.
II.
A defendant is liable only for those types of accidents that made the defendants
conduct negligent in the first place
III.
Because a careful breach analysis will consider what types of risks the
defendant’s conduct created, the scope of liability analysis may be straight
forward
Rst, 30 An actor is not liable for harm when the tortious aspect of the actors conduct
was of a type that does not generally increase the risk of that harm
I.
Tortious conduct did not increase risk of harm. An actor's tortious conduct may
be a factual cause of harm under § 26 but not be of a type such as to affect the
probability of such harm occurring. This situation arises when the risk created by
the actor's tortious conduct did not increase the risk of the harm suffered by the
other person. To put the point slightly differently, greater care by the actor
would not reduce the frequency of such accidents. When tortious conduct does
not generally increase the risk of the type of harm that occurred, the wrongful
aspect of the actor's conduct is merely serendipitous or coincidental in causing
the harm. While § 29 contains the primary limitation on liability, this Section
creates another limit on the scope of liability.
II.
Application of the principle in this Section may require careful attention to, and
description of, the risks created by the actor's tortious conduct. Whether the
tortious conduct increased the risk of harm may depend on the circumstances
and time frame in which the harm occurs. The critical inquiry is whether the risks
posed by the tortious conduct of the actor would, if repeated, make it more
likely that harm such as that suffered by the other person would also occur. If
the harm is no more likely to occur than if the actor desisted from the tortious
conduct, the harm is not within the scope of the actor's liability pursuant to this
Section.
B. Directness
a. Under the direct cause test an act that is a cause in fact of an injury will
be treated as a proximate cause of the injury if there is a direct
connection between the act and the injury
b. Even if the defendant act is a but for cause of the plaintiffs harm the
plaintiff may sometimes fail to establish proximate cause
c. An additional act subsequent to the defendants can break the chain of
causation or divert the force created by the defendants negligence and
make the injury its own
d. Finding that an act is a direct cause of a plaintiff’s harm usually involve
situations where all would agree that the connection between the
41
defendants act and the plaintiffs harm was so close that the defendant
should be liable
IN RE AN ARBITRATION BETWEEN POLEMIS AND FURNESS, WITHY & CO., LTD. (that board
started this whole thing )
a. A direct cause test
b. A negligent actor can be held liable for all damages his negligent act
caused, even if not reasonably foreseeable.
c. A negligent actor can be held liable for all damages his negligent act
caused, even if not reasonably foreseeable. The defendants’ employees
were negligent, and damage resulted from that negligence. Even though
a fire is not reasonably foreseeable from dropping a plank, the damage
that the employee foresaw as a result of the falling plank is irrelevant.
The damage does not have to be reasonably foreseeable; it simply has to
be caused by the negligence. The damages to the ship are not too remote
from the employee’s negligence for Polemis to recover.
d. Whether particular damages are recoverable should depend only on
whether they are direct consequences of the negligent act. Dropping the
plank was negligent because that could damage the ship. The loss of the
ship being the direct result of the falling board, Furness should thus be
liable for the actual loss.
e. If an act would probably cause damage, the fact that the damage that
actually occurred is not the exact type of damage anticipated is
immaterial for liability purposes.
LAUREANO v. LOUZOUN (you turned the heat off and now I’ve spilled hot water)
a. An intervening act occurring after a defendant’s negligent act may be sufficient to break
the causal connection, such that the defendant’s act can no longer be said to be the
proximate cause of a plaintiff’s subsequent injuries.
b. An intervening act occurring after a defendant’s negligent act may be sufficient to break
the causal connection between the defendant’s negligent conduct and the plaintiff’s
subsequent injuries. Consequently, it may be said that the defendant’s actions were not
the proximate cause of the plaintiff’s injuries. Here, it was not the defendants’ failure to
provide sufficient heat and hot water to Laureano’s home that caused her to sustain
burn injuries. Rather, it was Laureano’s own actions of banging the two pots of boiling
water together that brought about her harm. Laureano’s injuries would not have
resulted from the defendants’ failure to supply hot water alone and cannot be classified
as injuries normally to have flowed directly from the landlord’s conduct here
C. Substantial Factor
42
A. The substantial factor test for proximate cause considers whether the
contribution of a party’s act was relatively important compared with other but
for causes in producing the harm suffered by the plaintiff
AMERICAN TRUCK LEASING, INC. v. THORNE EQUIPMENT CO.
a. To recover damages in a negligence action, a plaintiff must show that a
defendant’s negligent conduct was a substantial factor in bringing about
the plaintiff’s harm, without the presence of an intervening act sufficient
to break the causal connection.
b. In order to recover in a negligence lawsuit, the plaintiff bears the burden
of showing that the defendant’s negligent conduct was a substantial
factor in bringing about the plaintiff’s harm. Further, the plaintiff must
show the absence of any intervening act sufficient to break the causal
connection. See Restatement (Second) of Torts § 431
c. Substantial factors:
A. (1) the number of other factors and extent they contributed to
producing the harm,
B. (2) whether a defendant’s conduct created a force or series of
forces that are in continuous and active operation up to the time
of the harm, or
C. (3) any lapse of time.
D. Foreseeability of the harm or the manner in which it occurred to
someone in the defendants position is irrelevant to the
determination of whether the defendants act is a substantial
factor
CHELCHER v. SPIDER STAGING CORP.
a. To succeed on a claim of negligent failure to warn, a plaintiff must prove that the
alleged product defect was both a cause-in-fact and proximate cause of plaintiff’s
injuries.
b. Here, the allegedly defective product was not a direct cause of Chelcher’s injuries.
Chelcher had worked on similar scaffolds for three years prior to his accident and had
knowledge of how the scaffold was rigged. Notwithstanding Chelcher’s claims that a
pictogram depicting a man falling should have been placed on the spider scaffold, it is
likely that Chelcher would not have acted differently. Chelcher performed his
sandblasting duties despite the noticeable absence of the job-site safety inspector and
the obvious mis-rigging of the spider. Consequently, reasonable jurors could agree that
any warning sign affixed to the spider or information in a safety manual cautioning
against a leaning scaffold would not have prevented Chelcher from ascending the
scaffold to sandblast. Therefore, the absence of warnings was not a direct cause of
Chelcher’s injuries.
43
c. A court may consider other factors that could have contributed in producing the harm
and the extent of the effect they had
d. Cause in fact- the court considered whether a warning by the defendant would have
made any difference to the course of events – factual
e. Proximate cause question involved policy judgment
TAYLOR v. JACKSON
a. When a defendant’s negligent act is a substantial factor in bringing about a plaintiff’s
injuries, mere lapse of time will not prevent such negligence from being a proximate
cause of the resulting harm.
b. The trial court erred when it held that the two-hour window between Klopp’s negligent
act of suddenly stopping on the highway and the plaintiffs’ subsequent injuries broke
any causal connection between Klopp’s negligence and the plaintiffs’ resulting harm.
However, so long as the defendant’s negligent act is a substantial factor in bringing
about the injuries sustained by the plaintiff, mere lapse of time, no matter how long it
is, will not be sufficient to prevent the negligence from being the legal cause of the harm
inflicted upon the plaintiff. See Restatement (Second) of Torts § 433(c), cmt. f.
c. Consequently, the determination of whether an actor’s conduct is a substantial cause of
the injuries complained of should be made by a jury. Ford v. Jeffries, 379 A.2d 111 (Pa.
197
d. As the length of time between an act and an injury increases more time is available for
other independent acts to contribute significantly to the harm. If more acts contribute
significantly to the harm then the original act is less likely to be a substantial factor
D. Foreseeability
A. Ignored in the directness test and given only a small function in the substantial
factor test
B. A defendants conduct is a proximate cause if
a. The conduct is a cause in fact of the accident
b. The general type of accident was a reasonably foreseeable consequence
of the defendants conduct
TIEDER v. LITTLE
a. To constitute proximate cause, there must be a natural, direct, and continuous
sequence between the defendant’s negligent act and the plaintiff’s injury, which is a
reasonably foreseeable consequence of the defendant’s negligence.
b. Proximate cause requires a natural, direct, and continuous sequence between the
defendant’s negligent act and the plaintiff’s injuries. Additionally, it must be shown that
the plaintiff’s injuries were within the scope of danger created by the defendant’s
negligent conduct or were a reasonably foreseeable consequence of the defendant’s
44
negligence. Generally, it is not necessary that the defendant foresee the exact sequence
of events that led to the accident. Rather, the resulting harm must be within the scope
of danger created by the defendant’s negligent conduct. For example, juries have held
that injuries sustained by business patrons attempting to escape a cafeteria set aflame
by a random act of arson were within the scope of the danger and were a reasonably
foreseeable consequence of the cafeteria’s negligence in failing to have adequate fire
exits. Here, the Tieders’ complaint sufficiently alleges that their daughter would not
have died had it not been for a negligently designed and constructed brick wall. Further,
the Tieders adequately claim that the collapse of a brick wall resulting in the death of
their daughter was a reasonably foreseeable consequence of the defendants’ conduct in
negligently designing and constructing the brick wall without adequate supports in
direct violation of building codes, even though the exact sequence of events leading to
the wall’s collapse was bizarre and unforeseeable.
c. Whether an injury was a reasonably foreseeable consequence of the defendants
negligence is the same as whether the injury was within the scope of the danger created
by the defendants negligence
d. For duty one considers whether in general conduct like the defendants creates a
foreseeable risk of harm, a zone of risk
e. For proximate cause, foreseeability is concerned with the specific narrow factual details
of the case rather than the broader zone of risk
II.
Eggshell Plaintiff rule – Rst 31, when an actors tortious conduct causes harm to a person
that because of a preexisting physical or mental condition or other characteristics of the
person is of a greater magnitude or different type than might reasonably be expected
the actor is nevertheless subject to liability for all such harm to the person
I. Sometimes conduct that would ordinarily be negligent because it creates a
certain risk turns out to create unforeseeably large damages because the victim
has an unusual weakness.
II.
Eggshell plaintiff rule applies to the extent of harm while the foreseeability rule
in the proximate cause context applies to the type of harm
SCHAFER v. HOFFMAN (you broke my already broken back )
a. Under the thin-skull rule, also referred to as the eggshell skull rule, a negligent
defendant may not seek to avoid or reduce the amount damages owed to the plaintiff
by claiming the plaintiff suffered from pre-existing medical conditions.
b. Under the thin-skull rule, also referred to as the eggshell skull rule, a negligent
defendant may not seek to avoid or reduce the amount damages owed to the plaintiff
by claiming the plaintiff suffered from pre-existing medical conditions that worsened
her injuries. Instead, the defendant is liable for any resulting harm suffered by the
plaintiff, despite the fact that the plaintiff may have been susceptible to injury at the
45
time of the negligent conduct. Restatement (Second) of Torts § 461, cmt. a. Jurisdictions
almost universally agree that a negligent defendant remains liable for injuries sustained
by a plaintiff even when the plaintiff has a concealed physical condition, such as
pregnancy, a latent disease, or some susceptibility to disease. Here, the instruction
submitted to the jury on the thin-skull doctrine was a proper statement of the law. Such
an instruction is properly given when the defendant seeks to avoid liability by claiming
the victim’s injuries would have been less severe had the victim been an average,
heathy person
c. Take the plaintiff as you find him or her- the eggshell plaintiff principle is sometimes
expressed as a statement to defendants “you must take the plaintiff as you find him or
her”
d. If a plaintiff happens to have an unusual weakness the eggshell plaintiff rule requires the
defendant to pay damages for an inquiry that could not have been foreseen
e. In a case where a defendant does something that could harm a typical person but
happens to do it to a person with an unusual weakness, the consequences of the
defendants act will likely be more severe than the defendant could have anticipated
PETITION OF KINSMAN TRANSIT CO.
a. Where an actor breaches a duty of care at the risk of creating a
foreseeable type of injury, liability is not limited on the ground that the
actual, resulting injury was different in manner and extent than
expectable.
b. Continental, and the City were properly deemed liable for injuries
suffered by plaintiffs, even to the extent that such injuries were not
specifically foreseeable. All three defendants breached a duty of care:
Kinsman and Continental failed to properly moor and anchor the Shiras;
the City failed to timely raise the Bridge. The fact that much of the harm
occurred by reason of the City’s failure does not release Kinsman and
Continental from liability for such harm. Where an actor’s negligence
triggers a chain of events leading to harm, the actor’s liability is not
limited by the fact that another person in the chain failed to act so as to
diminish the ultimate harm. Nor is liability for negligence limited by the
fact that the precise manner and extent of the injuries—here, upstream
property damage caused by flooding after the river’s damming—might
not have been foreseeable. If an actor’s negligence directly results in a
harm that was within the nature of the risk—though the chance of such
harm be small—the actor is responsible for the harm. This case is distinct,
therefore, from Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928), in
which the plaintiff’s injury was not deemed to be within the scope of
possible harm. Nor is this a case where the injury was too indirect or
46
tenuous to allow for liability. Finally, dividing liability among the City,
Kinsman, and Continental is fair
E. The Restatement (Third) Approach to Duty and Proximate Cause
A. Andrews: a negligent person generally has a duty to the whole world. Instead of
considering whether a plaintiff or a type of harm was foreseeable in the duty
analysis
a. Requires a careful analysis of the breach element
b. When analyzing breach a lawyer must carefully identify the likelihood and
severity of the potential risks created by a part’s conduct and consider
how difficult to would be to avoid those risks
c. Once those risks are identified in the breach analysis they provide the
foundation for the scope of liability analysis
F. No duty in exceptional cases:
A. The restatement (third) recognizes that in exceptional cases a court may rely on
public policies to find there is no duty
a. Rst, 7b:
A. In exceptional cases, when an articulated countervailing principle
or policy warrants denying or limiting liability in a particular class
of cases a court may decide that the defendant has no duty or
that the ordinary duty of reasonably care requires modification
B. Rejects the idea that a “no duty” ruling can be based on the facts
of an individual case. it adopts the idea that a no duty rule should
apply to an entire class of cases when a court can articulate
policies supporting a no duty rule
BEHRENDT v. GULF UNDERWRITERS INSURANCE CO.
a. A defendant does not breach a duty of ordinary care owed under the particular
circumstances if there is a lack of a foreseeable risk of harm to a plaintiff.
b. A defendant does not breach a duty of ordinary care owed under the particular
circumstances if there is a lack of a foreseeable risk of harm to a plaintiff. Generally, a
company owed a duty to exercise ordinary care to ensure that its policies and
procedures governing employee side jobs do not cause a risk of injury to a third party.
Here, Silvan clearly owed a duty to exercise ordinary care. But more importantly, the
focus is whether Silvan breached that duty by not foreseeing that one of its employees
would take a non-pressurized tank and modify it as a side job to become pressurized
again for use by a third-party, which would cause the tank to subsequently, and
unexpectedly, explode. Certainly, Silvan was subject to a duty to exercise ordinary care
to take precautions so that its scrapped pressurized tanks could not be used. Silvan did
so by cutting holes in the scrapped tanks. It simply was not foreseeable that one of
47
those tanks would then be modified and used in a manner likely to cause a risk of injury
to Behrendt.
c. Applies the substantial factor approach
d. A lack of foreseeable risk in a specific case may be the basis for a no breach
determination but such a ruling is not a no duty determination
THOMPSON v. KACZINSKI
a. Under the Restatement (Third) of Torts, an actor's liability is limited to the harms that
are the result of the type of risks that made the actor's conduct tortious.
b. A negligence claim requires the existence of a duty to conform to a standard of conduct
to protect others, a failure to conform to that standard, proximate cause, and damages.
A general duty to exercise reasonable care applies in most cases, and courts therefore
ordinarily do not need to consider duty on a case-by-case basis. In addition, although a
lack of foreseeable risk may be the basis for determining that there was no breach of
the general duty to exercise reasonable care, it may not be the basis for determining
that there was no duty of care.
c. With respect to causation, the drafters of the Restatement (Third) of Torts note that an
actor’s liability is limited to those physical harms caused to others that result from the
risks that made the actor’s conduct tortious. This principle is known as the “risk
standard” and is intended to prevent the imposition of liability in situations in which it is
not warranted. It does so by limiting the scope of liability to the reasons why the actor
should be legally liable in the first instance. The scope-of-liability test is fact intensive
and requires the court to analyze all of the risks that made the actor’s conduct tortious
and then decide whether the harm at issue resulted from any of those risks. The scopeof-liability test is similar to a foreseeability test, as both tests exclude liability for harms
that were sufficiently unforeseeable at the time of the allegedly negligent conduct.
d. In this case, although the defendants did not owe a statutory duty of care to the
Thompsons to avoid obstructing the highway right-of-way, they did owe a common-law
duty to exercise reasonable care in keeping their property out of the roadway and
removing any of their property that was obstructing the roadway within a reasonable
time. By granting summary judgment to the defendants, the trial court concluded as a
matter of law that the risk of serious injury to a passing motorist was outside the scope
of risk of the defendants’ conduct of placing unsecured trampoline parts near a busy
roadway. However, the issue is not so clear. A reasonable fact finder could determine
that the defendants should have known that high winds occasionally occur in Iowa
during storms and that a gust of wind could move the trampoline into the roadway.
Further, the defendants did not look to see if the trampoline had moved into the
roadway immediately after the storm had passed. Therefore, a reasonable fact finder
could find the harm suffered by the Thompsons resulted from the risks that made the
defendants’ conduct negligent
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e. Does a duty of care exist which the factors are not viewed as three distinct and
necessary elements but rather as considerations employed in a balancing process
a. The relationship between the parties
b. Reasonable foreseeability of harm to the person who is injured and
c. Public policy consideration
f. The risk standard approach to causation
a. Rather than treating proximate cause as a distinct issue the restatement
considers whether the scope of an actors liability should extend to the harm that
resulted in a particular case
i. The factfinder considers all of the harms risked by the actors conduct and
whether the harm that occurred was one of them
1. If not the harm is beyond the actors scope of liability and the
actor is not liable
b. Rst, 29- an actors liability is limited to those harms that result from the risks that
made the actors conduct tortious
c. Rst, 30- an actor is not liable for harm when the tortious aspect of the actors
conduct was a type that does not generally increase the risk of that harm
G. Combining Approaches
A. The directness, substantial factor and foreseeability tests are sometimes
combined. Some states have applied rules requiring that the defendant’s
conduct be a substantial factor in producing the harm and that the harm be
foreseeable
B. Based on jurisdiction
H. Burden of proof on proximate cause
A. Whatever the test for proximate cause a party is obliged to prove that another’s
conduct was a proximate cause by a preponderance of the evidence
F. Intervening and Superseding Forces
a. In general –
i. All approaches to proximate cause take account of intervening or
superseding events
ii. When a third party’s conduct comes after the defendants act in the chain of
events leading to the plaintiffs injury that conduct is referred to as an
intervening act
iii. When an intervening third party act prevents the defendant from being
liable that intervening act is labeled a superseding act or superseding cause
b. Consideration of superseding cause comes after and in addition to the analysis of
whatever other proximate cause or scope of liability test the court uses
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c. Rst, 34, When a force of nature or an independent act is also a factual cause of
harm an actors liability is limited to those harms that result from the risks that
made the actors conduct tortious
i. The terminology used by the first and Second Restatements of Torts and
courts includes “intervening forces (or acts),” which consist of acts,
omissions, or other forces that occur after the tortious conduct of the actor
and that are other than the background causes that ordinarily exist. A
“superseding cause” is an intervening force or act that is deemed sufficient
to prevent liability for an actor whose tortious conduct was a factual cause
of harm. The “act” may be tortious or entirely innocent. This terminology
has been widely adopted, although a number of courts employ the term
“supervening” cause instead of “superseding” cause.
d. Three ways intervening acts are not superseding causes that prevent the
defendant from being liable
i. It is a normal response to the negligent act that is reasonably foreseeable
and the original actors conduct was a substantial factor in bringing about
the harm
ii. It could reasonably have been anticipated or
iii. The intervening conduct could have been anticipated and taking the risk of
it was unreasonable
1. Scope of the risk- asks whether the intervening act was among the
foreseeable circumstances that made the defendants conduct
blameworthy
e. If the intervening actor and the original actor both breached a duty to the plaintiff
and the intervening act is not a superseding cause then the two actors will share
liability
i. Shares determined through the apportionment of damages
f. If the intervening actor breached a duty to the plaintiff and his or her act
supersedes that of the first actor only the intervening actor will be liable to the
plaintiff
PRICE v. BLAINE KERN ARTISTA, INC.
a. A third-party’s intervening intentional act will not break the
chain of proximate causation between a defendant’s
negligent conduct and a plaintiff’s subsequent injuries if the
act is reasonably foreseeable.
b. A third-party’s intervening intentional act will not break the
chain of proximate causation between a defendant’s
negligent conduct and a plaintiff’s subsequent injuries if the
act is reasonably foreseeable. While it is generally true that a
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criminal or tortious third-party action will sever the chain of
proximate causation between a plaintiff and defendant, the
chain remains unbroken when the third-party conduct is
reasonably foreseeable.
McCLENAHAN v. COOLEY
1 PROXIMATE CAUSE
1.1.1.1 Definition
A crime or act of negligence that is so linked to the resulting injury that the law considers it the
legal cause of the injury, even if the injury would not have happened but for some other event.
2 SUPERSEDING CAUSE
2.1.1.1 Definition
An intervening event, occurring after the alleged tortfeasor’s act, that is legally deemed to
override the tortfeasor’s act as the cause of the injury and, consequently, to relieve the
tortfeasor from liability for such injury.
3 INTERVENING ACT
3.1.1.1 Definition
An event, occurring between the initial act and final result in a chain of events, that changes the
course of events—and therefore the connection between the initial act and the injury—from
how they would have ensued otherwise.
a. An intervening act is not a superseding cause that breaks the causal
connection between negligent conduct and resulting injury if it was: (1)
reasonably foreseeable and (2) a substantial factor in bringing about the
harm.
b. In part, those courts concluded that the vehicles' owners owed no duty to
the injured individuals. Other jurisdictions hold differently, concluding
that a reasonable person could reasonably foresee the theft of a car left
unattended with the keys in the ignition.
c. Certainly, a plaintiff in a negligence action must establish: (1) a duty of
care owed by the defendant to the plaintiff; (2) that the defendant’s
conduct fell below the applicable standard of care, resulting in a breach
of the duty; (3) an injury or loss; (4) causation in fact; and (5) arguably the
most important, proximate or legal causation. However, there is no
requirement that proximate cause be the sole cause, the last act, or the
nearest to the injury. Instead, if there is a risk that a defendant’s
negligent conduct could lead to further harmful acts resulting in injuries,
liability may be imposed for the defendant’s initial malfeasance.
BARRY v. QUALITY STEEL PRODUCTS, INC.
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a. Where a jury must decide which of the many possible causes contributed to a
plaintiff’s injury, the jury should decide whether the conduct of each actor was
one proximate cause of the plaintiff’s injury.
b. Where a jury must decide which of the many possible causes contributed to a
plaintiff’s injury, the jury should decide whether the conduct of each actor was
one proximate cause of the plaintiff’s injury. The test for proximate cause is
whether the defendant’s wrongful conduct is a substantial factor in bringing
about the plaintiff’s injury. A concurrent cause is one that is contemporaneous
with the defendant’s wrongful conduct, and works with the defendant’s
wrongful conduct to bring about the plaintiff’s injury. A superseding cause is
wrongful conduct by a third party that breaks the causal chain and prevents the
defendant from being liable for any preceding wrongful conduct that was a
substantial factor in bringing about the plaintiff’s injury. A third party’s wrongful
conduct will supersede the defendant’s wrongful conduct if the third party’s
conduct alone, without contribution from the defendant’s conduct, would have
produced the plaintiff’s injury.
c. The purpose of the doctrine of superseding cause is to define the circumstances
under which responsibility may be shifted entirely from one negligent person to
another negligent person.
d. Abandons superseding cause analysis in party because it is inconsistent with
modern rules of comparative negligence and apportionment
e. Whether or not proximate cause exists can be a question of foreseeability of the
injury given the specific facts of the case
A. The broad type of plainitff
B. The broad type of harm without addressing the specific facts of the
occurrence
D. Abandoning superseding cause where the substantial factor test is used
a. Scope of liability is whether a party’s conduct was a substantial factor in
producing the plaintiffs injuries. Foreseeability of the harm or the manner in
which is occurred to someone in the defendants position is generally irrelevant
to whether the defendant’s act is a substantial factor
b. The substantial factor test does not overlap with the superseding cause test
which focuses on foreseeability so the redundancy rationale for abandoning
superseding cause analysis does not apply
E. Rst, 34 recognizes that other human acts and forces of nature may concur with tortious
conduct to cause harm. Were it not for the long history of intervening and superseding
causes playing a significant role in limiting the scope of liability
F. To address the substantial body of law on this subject and to explain the bases for its
declining purpose it is necessary
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III.
Rst, 35, Enhances Harm due to efforts to render medical or other aid
I. An actor whose tortious conduct is a factual cause of harm to another is subject
to liability for any enhanced harm the other suffers due to the efforts of third
persons to render aid reasonably required by the other’s injury, so long as the
enhanced harm arises from a risk that inheres in the effort to render aid
II.
A negligent actor was liable for enhanced harm caused by third persons in
rendering air reasonably required by the injured person, regardless of whether
the third person acted negligently
III.
The inherent risks of non-negligently provided treatment are plainly within the
scope of the actors liability
IV. An actor is not liable for ALL enhanced harms that occur from efforts to rend aid.
Only those enhanced harms whose risks are created by normal efforts to render
aid are within the scope for eh actors liability. The actor is not subject to liability
for enhanced harm caused by extraordinary or unusual acts that create risks or
harm different from those normally created by efforts to render aid
WEEMS v. HY-VEE FOOD STORES, INC.
a. A negligent defendant is liable for damages to a plaintiff for all harm directly
resulting from the injury and any additional and reasonably foreseeable harm
caused by the normal efforts of a third party rendering aid.
b. A negligent defendant is liable for damages to a plaintiff for all harm directly
resulting from the injury and any additional and reasonably foreseeable harm
caused by the normal efforts of a third party rendering aid. Restatement
(Second) of Torts § 457. In this case, Hy-Vee argued that the 18-month period
between Weems’s initial fall and his subsequent spinal meningitis constituted an
intervening act. Further, Hy-Vee claimed that the effort of Dr. Delbridge was a
superseding act that negated Hy-Vee’s liability for Weems’s resulting spinal
meningitis. It is true that if an independent force intervenes after the
defendant’s original negligent conduct and plays a substantial role in creating
further injury to the plaintiff, the defendant may be relieved from liability under
narrowly defined circumstances. If those circumstances are met, the
independent act becomes a superseding cause that will absolve the defendant of
liability. For an intervening act to become a superseding cause, the additional
harm caused to plaintiff must not have been a normal consequence of the
defendant’s original tortious conduct or have been reasonably foreseeable.
Here, Hy-Vee claimed the spinal meningitis 18 months after Weems’s fall was
not a reasonably foreseeable consequence of maintaining a wet floor
c. However, an intervening act is reasonably foreseeable and will not break the
causal connection between the original negligence and the later injury if the
subsequent force or conduct is within the scope of the original risk. The
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defendant does not need to foresee the specific conduct making up the
intervening force. Rather, so long as the defendant’s original negligent conduct
created or increased the risk of a particular harm to the plaintiff and was a
substantial factor in causing the harm, it is immaterial that the resulting harm
was not foreseen or anticipated. Generally, medical treatment sought by an
injured person is a normal consequence of a negligent defendant’s conduct.
Here, there was evidence presented at trial that administration of an epidural
block is an accepted and common treatment for chronic back pain and that
spinal meningitis was a known risk of the procedure
d. When a defendants conduct requires a plaintiff to seek medical care, courts are
reluctant to treat the medical care as a superseding act
CORBETT v. WEISBAND
a. It is for a jury to determine, if reasonable minds could differ, whether an
intervening act constitutes a extraordinary act resulting a superseding
cause that broke the causal connection between the defendant’s
negligent conduct and the plaintiff’s resulting harm.
b. It is for a jury to determine, if reasonable minds could differ, whether an
intervening act constitutes a superseding cause that broke the causal
connection between the defendant’s negligent conduct and the plaintiff’s
resulting harm. See Restatement (Second) of Torts § 443, cmt. b.
c. Typically, an intervening act that is found to be “extraordinarily
negligent,” constitutes a superseding cause relieving a defendant of
liability.
d. The trial court felt that reasonable minds could not disagree that Dr.
Greene had been grossly negligent, because the extensive medical
testimony showed that the physician’s action of performing a total knee
replacement fell below the standard of care. There is no dispute that Dr.
Green’s actions were negligent. However, there is room for debate
regarding whether the negligence was “highly extraordinary.
IV.
Harm outside the scope of the risk
I. If during the course of treatment the medical professional created risks not
inherent in the defendants negligent conduct, the defendant will ordinarily not
be liable for the enhanced injuries that result from the conduct
II.
Rst, 35, An actor whose tortious conduct is a factual cause of harm to another is
subject to liability for any enhanced harm the other suffers due to the efforts of
third persons to render aid reasonably required by the others injury, so long as
the enhanced harm arises from a risk that inheres in the effort to render aid
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V.
Plaintiff’s Contributory Fault
I. Some injuries are caused by the combined effect of the negligent conduct by
the plainitff and the negligent conduct of one or more defendants
II. Common law treated a plaintiffs negligence under the doctrine known as
contributory negligence- making it a complete bar to a plaintiff’s recovery no
matter how small a contribution that negligence had made to the plaintiffs
injury
III. Modern approached require a jury to assign a percentage to the plaintiffs share
of responsibility for the injury
a. Modified comparative negligence/fault- a plaintiff is barred from
recovering only if the plaintiff’s percentage of responsibility is greater
than 49 percent of 50 percent
I. Depends on whether equality is favoring the plaintiff or the
defendant
b. Pure comparative negligence/fault- a plaintiff is barred from recovering
only if the plaintiffs percentage of responsibility is 100 percent
c. In these comparative systems when a plaintiffs negligence does not bar
recovery the total damages awarded to the plainitff are reduced to
reflect the percentage of the plaintiff responsibility
A. Traditional Common Law Treatment of a Plaintiff’s Negligence
A. Under traditional tort law, a plaintiffs negligent conduct was a
total bar to recovery if it was one of the legal causes of the
plaintiffs injury
IV. Apportionment according to relative degrees of fault
a. The comparative negligence rule requires factfinders to determine
shares of liability
b. In determining the percentages of fault the trier of fact shall consider
both the nature of the conduct of each party at fault and the extent of
the causal relation between the conduct and the damages claimed
I. Whether the conduct resulted from inadvertence or involved an
awareness of the danger
II. How great a risk was created by the conduct
III. The significance of what was sought by the conduct
IV. The capacities of the actor whether superior or inferior and
V.
Any extenuating circumstances which might require the actor to
proceed in haste without proper thought
G. Rst, 7 Effect of Plaintiffs Negligence when plaintiff suffers an indivisible injury
a. Plaintiffs negligence or the negligence of another person for whose negligence
the plaintiff is responsible that is a legal cause of an indivisible injury to the
55
plaintiff reduces the plaintiff’s recovery in proportion to the share of
responsibility the factfinder assigns to the plaintiff or other person for whose
negligence the plaintiff is responsible.
A. Comparative responsibility
WRIGHT v. NORFOLK AND WESTERN RAILWAY CO.
a. A defendant is absolved from liability for negligence if he proves by a preponderance
of the evidence that a plaintiff’s contributory negligence was the proximate cause of
the plaintiff’s injuries.
b. A defendant is absolved from liability for negligence if he shows by a preponderance of
the evidence that a plaintiff’s contributory negligence was the proximate cause of the
plaintiff’s injuries. This burden is placed on the defendant to provide such evidence
either through testimony and evidence submitted by a plaintiff or his own evidence
and testimony.
c. If successful, the defendant may be absolved from partial or full liability. Here,
reasonable minds could not differ in concluding that Wright’s negligent actions were
the proximate cause of his own injuries. Not only had Wright traversed the railroad
crossing several times previously on the day of the accident, he was familiar with the
particular crossing because he had lived near it for years.
B. Modern Comparative Treatment of a Plaintiff’s Negligence
A. Two main varieties of comparative negligence have been
developed: pure and modified. All comparative negligence
systems reject the idea that negligence by the plaintiff is an
absolute bar to recovery
B. Pure comparative negligence allows a contributorily negligent
plainitff to recover some portion of his or her total damages as
long as the defendants negligence was also a proximate cause of
the accident. The damages will be reduced by whatever
percentage the jury assigns to the plaintiffs negligence
C. Modified comparative negligence has been adopted in two
forms
A. In one system a negligent plaintiff is allowed to recover
damages only if his or her negligence is less than that of
the defendant or defendants
A. A 49 percent share of responsibility will allow
recovery, but a 50 percent share will not
B. The other form of modified comparative negligence
allows a negligent plaintiff to recover damages only if his
or her negligence is less than or equal to that of the
defendant or defendants (favoring the defendant) (favor
plaintiff if over 50%)
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A. In this system a plaintiff whom the jury finds to
have been as much as 50 percent responsible for
his or her injury will be entitled to damages
McINTYRE v. BALENTINE
a. Even if contributorily negligent, a plaintiff may recover, but only if the plaintiff’s
negligence is less than the defendant’s negligence.
b. In a modified comparative negligence jurisdiction, a plaintiff may recover even if
contributorily negligent, but only if the plaintiff’s negligence is less than the
defendant’s negligence. In such cases, the plaintiff’s recovery will be reduced in
proportion to the percentage of the plaintiff’s negligence. In so holding, the court
hereby abandons the “all-or-nothing” rule of contributory negligence that bars a
plaintiff’s claim if he is the least bit negligent. The all-or-nothing rule is “outmoded and
unjust” and must be abandoned to hold those that are negligent accountable. In the
case at bar, the jury determined that McIntyre and Balentine were equally at fault in
the accident. Until the court’s modification of Tennessee’s law in this decision, there
were no consequences for an arbitrary jury apportionment of damages once it was
determined that both parties were at fault.
DOBSON v. LOUISIANA POWER & LIGHT CO.
a. In a negligence action, a party with a superior ability to avoid danger is more negligent
and culpable than a party with inferior awareness of danger.
b. The company given the superior knowledge it was the least cost avoider for the
accident- they were more unreasonable and are more upset
c. Typically, the entity in the superior position to avoid danger is the one with greater
knowledge or resources about the particular circumstances and who can rely on such
information to avoid the inherent danger. Here, it is clear that LP&L was in the
superior position to be aware of the danger posed by the uninsulated power line. The
cost or burden of eliminating the danger would have been greater for Dobson than for
LP&L. The company had a number of relatively inexpensive, workable precautions
available to it, namely inspection, maintenance, partial insulation, public education,
and visible warnings. Such costs were feasible when compared to the cost to Dwane,
who was ignorant of the characteristics of the uninsulated distribution lines and,
therefore, unaware of their special danger. That is not to say that Dwane was free
from comparative fault. However, under the circumstances, the cost of taking effective
precautions to avoid the risk was greater for Dwane than for LP&L, which was in a
superior position to avoid the danger.
JENSEN v. INTERMOUNTAIN HEALTH CARE, INC.
a. In a modified comparative negligence jurisdiction employing the “unit”
rule, a plaintiff’s negligence does not completely bar recovery in an
action to recover damages so long as the plaintiff’s negligence was not
as great as the total negligence of the defendants, but such damages
57
o
may be reduced to reflect the amount of negligence attributable to
the plaintiff.
b. In a modified comparative negligence jurisdiction employing the “unit”
rule, a plaintiff’s negligence does not completely bar recovery in an
action to recover damages so long as the plaintiff’s negligence was not
as great as the total negligence of the defendants. However, any
damages awarded to the plaintiff may be reduced to reflect the
amount of negligence attributable to him. Under the state’s
comparative negligence statute, the negligence of each defendant in a
multi-defendant action is combined and then compared to the
negligence of the plaintiff in causing his own injuries or death. If the
plaintiff’s negligence is not as great as that of the defendants’ then the
plaintiff may recover. Here, the jury found Dale 46 percent negligent.
c. The combined negligence of Intermountain and the physician was
found to be 56 percent. Because Dale’s negligence was less than that
of the defendants, Shirley properly could recover damages, but such
damages would then be reduced to reflect the proportion of Dale’s
negligence. However, the trial court did not apply the “unit,” rule as
set forth in the state’s comparative negligence statute. Instead, the
trial court utilized the “Wisconsin” rule, a minority position to
determine whether the defendants were liable. Under the
“Wisconsin” rule, the negligence of Dale was compared individually to
the negligence of Intermountain and then to the physician. In each
case, Dale’s negligence exceeded that of each individual defendant.
However, the application of the “Wisconsin” rule is inherently unfair
because it allows otherwise liable defendants to escape responsibility.
For example, if a plaintiff was 33 1/3 percent negligent in an action
and each of two defendants were also 33 1/3 percent negligent, the
plaintiff would recover nothing under the “Wisconsin” rule. The same
cannot be said if the jurisdiction utilized the “unit” rule. The state’s
statute was not intended to adopt a rule that would permit such
extraordinary consequences.
Unit Rule in Modified Comparative Negligence Jurisdictions Only
a. In modified comparative negligence jurisdictions, the plaintiffs degree
of fault is compared to the defendants degree of fault. A plaintiff can
recover some damages only if the plaintiffs fault is less than (or in
some states, not greater than) the single defendants. If there are
multiple defendants a state may chose to compare the plaintiffs fault
to each defendant separately applying its modified rule to each pair of
parties
b. Alternatively a state may treat the defendants as a unit comparing the
plaintiff’s relative degree of fault to the total of the defendants fault
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III.
Assumption of Risk
a. Sometimes an express agreement to forgo a right to sue will bar a
plaintiff from recovery for harm caused by a defendants negligent
conduct
b. In some cases a plaintiff has not made an explicit agreement to excuse
the defendants negligence but the plaintiff has acted as if he or she was
willing to encounter the risks presented by that negligence
I. Implied assumption of risk
IV. Express Assumption of Risk
I. Express assumption of risk cases involve agreements by plaintiffs
to accept risks created by defendants activities.
II. They almost always involve written releases in which a plaintiff
agrees not to sue if certain risks cause harm. In exchange the
defendant provides a service or product to the plaintiff
III. Enforceability of a release involves
I. Does public policy permit releases in connection with the
activity
II. If public policy allows assumption of risk for that activity
does the particular release provided by the plaintiff merit
enforcement
WAGENBLAST v. ODESSA SCHOOL DISTRICT
a. Categories of activities for which releases are generally unenforceable
b. Releases exculpating a school district from future negligent acts are invalid per public
policy.
c. Six factors to determine whether any release would be enforceable in this context:
1. The agreement concerns an endeavor of a type generally thought
suitable for public regulation
2. The party seeking exculpation is performing a service of great
importance to the public
3. Such party holds itself out as willing to perform this service for
any member of the public who seeks it
4. The party seeking exculpation possesses a decisive advantage of
bargaining strength against any member of the public who seeks
serviced
5. In exercising their superior bargaining power, the party provides
the public with a standardized adhesion contract of exculpation
and makes no provision whereby a purchase has an option to
obtain protection against negligence
6. The person or property must be placed under the control of the
services, its employees or agents.
b. A school district owes a duty to its students to employ ordinary care and to
anticipate reasonably foreseeable dangers in order to take precautions for
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protecting children in their custody. This duty extends to students engaged in
interscholastic sports. As a result, student athletes are consistently placed
under the control of a school’s coach. Thus, the student is subject to the risk
that the school district or its agent will breach this duty of care. Because the
releases exhibit all six of the Tunkl characteristics they are invalid as against
public policy. The judgment of the trial court is reversed.
c. This court has implicitly recognized that an express assumption of risk which
relieves the defendants duty to the plaintiff may violate public policy
TURNBOUGH v. LADNER
a. Comment c. Method of forming contractual limitations on liability. The essential element in a
contractual limitation on liability is that the party who assumes the risk understands and agrees to
the result.
b. In fact, parties can establish an implied-in-fact contract through conduct, without using any
express language, as long as their intent is clear.
c. Releases signed under conditions that do not provide a plaintiff with an informed,
voluntary choice or that contain oppressive terms without an opportunity to be
negotiated are unenforceable.
d. Such agreements will be highly scrutinized by a court and invalidated if the language
used in the release is unclear or ambiguous with regards to the extent each party
intends to be absolved from liability.
e. Assuming Turnbough was aware of the inherent risks in scuba diving, it does not
reasonably follow that he, as a student, intended to waive his right to recover from
Ladner, a scuba teaching expert, for failing to follow even the most basic industry
safety standards.
f. Comment d. Burden of proof and strict construction of contracts.Courts normally construe
exculpatory contracts strictly, finding that the plaintiff has assumed a risk only if the terms of the
agreement are clear and unequivocal.
g. Comment e. Other unenforceable contracts.In some situations, exculpatory contracts are against
public policy and are unenforceable. The most common situation is when the defendant is
performing a public-service duty.
VII.
VIII.
Express assumption of risk in torts and contracts
I. Express assumptions of risk raise two questions also raised in contract law
a. Will the court enforce agreements in the factual setting involved in the
case
b. Is the particular contract enforceable
II. Contracts contrary to public policy are unenforceable
Implied Assumption of Risk
I. Tort law recognizes two kinds of implied assumption of risk
I. Primary implied assumption of risk
I. This doctrine has nothing to do with an individuals
knowledge of risks or interest in giving up the
ability to sue for injuries
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II.
II.
III.
It describes situations in which a court concludes
or a statute states that the defendant has not
duty to the plaintiff or has not breached a duty to
the plaintiff
III. Rebuttal to the plaintiffs arguments for duty and
breach
IV. A defendant has not duty to take precautions to
prevent a risk that is inherent in its activity.
Inherent means that the risks are obvious and
necessary
Secondary Implied Assumption of Risk
I. Requires a subjective test of whether the plaintiff
actually knew and appreciated the risk created by
the defendant’s wrongful conduct and voluntarily
accepted the risk
II. This doctrine serves as a defense for a defendant
who would otherwise be liable for tortious
conduct
III. defense
Primary assumption of risk
I. Is an argument that the defendant did not breach
a duty to the plaintiff
SCHROYER v. MCNEAL
a. Assumption of the risk is a complete defense when a defendant successfully shows
that a plaintiff had knowledge and appreciation of a known risk and voluntarily chose
to encounter it.
b. Assumption of the risk is a complete defense when a defendant successfully shows
that a plaintiff had knowledge and appreciation of a known risk and voluntarily chose
to encounter it. The defenses of assumption of the risk and contributory negligence
are closely related and often overlap. The overlap occurs where the plaintiff
voluntarily, but unreasonably, encounters a known risk and chooses to continue with
conduct that could be considered contributory negligence. However, the pair of
defenses are also different in some ways; namely, a plaintiff’s contributory negligence
is a cause of an accident whereas assumption of the risk means the plaintiff voluntarily
encountered a known or perceived risk. When a plaintiff voluntarily knowingly enters
into a situation involving an appreciable, obvious danger she impliedly assumes the
risk of injury that may result. Here, McNeal was fully aware of the dangerous condition
of the premises. She knew the area was covered with ice and snow and that the area
was slippery, as evidenced by her initial trek into the hotel. Nevertheless, McNeal
parked her vehicle in the area and knowingly walked across the ice-laden path for
convenience purposes with full awareness of the danger it posed
c. Secondary unqualified implied assumption of risk
a. Bars or reduces a plaintiffs recovery even if the plaintiff acted reasonably
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d. Secondary Implied Assumption of risk
1. The plaintiff knew and appreciated and voluntarily accepted the
risk
2. A reasonably person either would not have accepted the risk or
have done so would not have behaved as the plaintiff behaved
e. Reasonable and Unreasonable Assumption of Risk
a. In addition to showing that the plaintiff
1. Knew of the risk
2. Appreciated the nature of extent of the risk
3. Voluntarily exposed herself to the risk
b. The defendant was also required to show
1. It was objectively unreasonable for the plaintiff to expose herself
to the risk
DAVENPORT v. COTTON HOPE PLANTATION HORIZONTAL PROPERTY REGIME
a. Secondary implied assumption of risk applies to those risks
created by the defendant that are not necessary – in fact it
was negligent (or reckless) for the defendant to create
those risks
b. Assumption of risk is not an absolute bar to recovery
unless the plaintiff's degree of fault in assuming the risk is
greater than the defendant's negligence.
c. In South Carolina, to establish an assumption-of-risk
defense, the defendant must show that the plaintiff: (1)
knew of the facts constituting the dangerous condition, (2)
knew the condition was dangerous, (3) appreciated the
nature and extent of the danger, and (4) voluntarily
exposed himself to the danger.
d. Assumption of risk can be either express or implied. An
express assumption of risk exists if the parties expressly
agree that the plaintiff will relieve the defendant of its
legal duty toward the plaintiff; this is an absolute defense
to a defendant’s negligence. Primary implied assumption
of risk focuses on the defendant’s duty of care, and not on
the plaintiff’s conduct in assuming the risk. It is not an
affirmative defense, but rather a part of the initial
negligence analysis, concerning whether the defendant’s
legal duty includes the risk the plaintiff encountered.
Secondary implied assumption of risk is asserted only after
the plaintiff establishes a prima facie case of negligence. It
concerns the plaintiff’s conduct, which may be either
reasonable or unreasonable in proportion to the
advantage sought from assuming the risk. Express and
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II.
primary implied assumption of risk are compatible with a
comparative-negligence system.
e. Only a handful of comparative-negligence states still
retain assumption of risk as an absolute defense. The
question is whether, in this jurisdiction, a plaintiff should
be absolutely barred from recovery if he voluntarily
assumes a known risk, regardless of whether his
assumption of that risk was reasonable or unreasonable.
The purpose of an assumption-of-risk defense is not to
determine fault, but to prevent a plaintiff who knowingly
assumes a risk of harm from holding another person
liable. A comparative-negligence system, in contrast, seeks
to compare the negligence of both the plaintiff and the
defendant. Under South Carolina’s comparativenegligence system, a plaintiff should not be absolutely
barred from recovery simply because he assumed the risk
of injury. In this matter, a jury could reasonably conclude
that Cotton Hope was negligent in failing to maintain the
stairway lighting
Apportioning Damages Among Liable Defendants
a. When tortious actions by multiple individuals are legal causes of a
plaintiffs injury tort law allocates responsibility for damages among
those individuals
b. Modern tort law increasingly recognizes proportional and shared
responsibility among plaintiffs and defendants
c. When more than one defendants conduct is a legal cause of a plaintiffs
injury and the plaintiff is entitled to recover damages there are two
solutions to the question of how much each defendant should pay
d. Common law recognized a system known as joint and several liability
with related doctrines of contribution and indemnity
I. A plaintiff was entitled to enforce his or her entire
judgment against each one of the defendants. This meant
that the plaintiff could collect the entire sum from one of
them or could collect part from one and part from
another
II. Rst, 10 Effect of Joint and Several Liability
I. When under applicable law, some persons are jointly and
severally liable to an injured person the injured person
may sue for and recover the full amount of recoverable
damages from any jointly and severally liable person
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III.
Rst, 17 Joint and Several or Several Liability for Independent
Tortfeasors
I. If the independent tortious conduct of two or more
persons is a legal cause of an indivisible injury, the law of
the applicable jurisdiction determines whether those
persons are jointly and severally liable, severally liable, or
liable under some hybrid of joint and several and several
liability
e. Several liability is a system in which each defendant is assigned an
individual obligation to the plaintiff.
I. The plaintiff may collect only that amount from each
defendant
II. There are no procedures to redistribute the costs of the
judgment among the defendants because no defendant
can have paid an amount in excess of his or her assigned
share
II. Rst, 11 Effect of Several Liability
I. When under applicable law, a person is severally liable to
an injured person for an indivisible injury, the injured
person may recover only the severally liable persons
comparative responsibility share of the injured persons
damages
I. A defendant is only liable for that portion of the
plaintiffs damages that reflect the percentage of
comparative responsibility assigned to that
defendant
II. Because liability is limited to defendants several
share of damages other nonparties may be
submitted to the factfinder for an assignment of a
percentage of comparative responsibility
I. To enable defendants comparative
share of responsibility determined
A. Joint and Several Liability
A. Joint and several liability treats each defendant as
responsible for the entire judgment awarded to the
plaintiff
B. Rst, 17, Joint and Several or Several Liability for
Independent Tortfeasors
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A. If the independent tortious conduct of two or
more persons is a legal cause of an indisible
injury, the law of the applicable jurisdiction
determines whether those person are jointly and
severally liable severally liable or liable under
some hybrid of joint and several and several
liability
CAROLINA, C.& O. RY. ET AL. v. HILL
a. If there are several concurrent negligent causes of a loss and the effect of each cause is
not separable, but each cause was sufficient to produce the entire loss, all parties are
jointly and severally liable for the entire loss.
b. If there are several concurrent negligent causes of a loss and the effect of each cause is
not separable, but each cause was sufficient to produce the entire loss, all negligent
parties are jointly and severally liable for the entire loss. This means that either the
parties can be held liable together, or each party individually can be held liable for the
entire loss.
c. This doctrine of joint and several liability is thoroughly established. In this case, it is not
clear what role, if any, Yellow Poplar played in the damage to Hill’s property. If Yellow
Poplar did cause some of the damage, it would be impossible to determine how much
of the damage was attributable to Poplar and how much to Carolina. It is clear,
however, that Carolina’s activities alone were enough to cause all of the damage to
Hill.
d. Joint and several liability as a damage rule
a. The joint and several rule is a damage rule applicable in cases where it is
difficult or impossible to identify distinct injuries for which each of multiple
defendants is a but for cause
b. If the damage caused by each can be separated liability is several—each
defendant would be liable only for the damage he caused
c. If the damage cannot be separated liability is joint and several –either
defendant is responsible for all the damages
e. Effect of joint and several liability
a. Under joint and several liability a plaintiff can sue any of two or more
tortfeasors and recover his dull damages
b. This rule supports the policy of compensating plaintiffs and deterring parties at
fault though it may put a burden on a defendant disproportionate to its fault
c. If the plaintiff recovers full damages from one party the plaintiff cannot then
seek recovery from any of the others
d. This encouraged plaintiffs to sue first the defendant with the best ability to pay
LACY v. CSX TRANSPORTATION, INC.
a. In a civil trial it is impermissible for the trial judge or counsel to discuss the operation
of the doctrine of joint and several liability where the purpose is to communicate to
the jury the potential post-judgment effect of their assignment of fault.
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b. In a civil trial it is impermissible for the trial judge or counsel to discuss the operation
of the doctrine of joint and several liability where the purpose is to communicate to
the jury the potential post-judgment effect of their assignment of fault. In his closing
argument, counsel for CSX speculated that plaintiffs would be unwilling to collect any
judgment against Sullivan and, instead, would resort to holding CSX fully liable for the
entire amount. In effect, counsel for CSX misled the jury into believing that plaintiffs
could ultimately control who would pay.
c. Clearly, this ignores the fact that CSX would, if called upon by plaintiffs to satisfy the
entire judgment, have a right of comparative contribution against Sullivan. To inform
the jury about the potential effects of joint and several liability could ultimately lead to
trial courts being required to instruct juries on complex subjects such as contribution,
indemnity, bankruptcy, and the effect of immunities, among others. Here, the trial
court abused its discretion not only by allowing CSX to inform the jury about the
possible effect of post-judgment liability but also by insinuating that it should be
absolved of all liability on such basis.
d. The plaintiffs options under joint and several liability
a. The plaintiff may collect the entire amount of damages from any defendant
whose negligence was a proximate cause of her harms
SITZES v. ANCHOR MOTOR FREIGHT, INC.
a. A right of comparative contribution exists between joint tortfeasors based upon each
defendant’s relative degree of primary fault or negligence.
b. A right of comparative contribution exists between joint tortfeasors based upon each
defendant’s relative degree of primary fault or negligence. Historically, the state has
adhered to the doctrine of joint and several liability among tortfeasors which allows a
plaintiff to hold all of those responsible for his injuries and collect damages from
whomever is able to pay regardless of each defendant’s percentage of fault.
c. The basic purpose of the joint and several liability rule is to permit the injured plaintiff
to collect the full amount of damages against one or more of the defendants.
d. However, the joint and several liability rule fostered the notion in a number of
jurisdictions that it was unfair to require one defendant to pay the entire damage
award and not be able to obtain contribution from any of the other joint tortfeasors.
Consequently, many duty states developed comparative contribution rules whereby a
defendant is liable for damages in relation to his relative degree of fault.
B. Several Liability
C. In recent years many legislatures have eliminated or modified the joint and
several liability doctrines
D. Several liability is often the general rule with joint and several liability retained
as an exception for specifically identified types of cases
PINER v. SUPERIOR COURT (ahhh I got hit again and my back hurts again)
a. Burden on defendant to apportion fault
66
Is assessing percentages the jury must consider the fault of all persons who
contributed
Trial court erred in placing the burden of perf pertaining to apportionment of
fault on piner
b. Divisible and indivisble injury
c. Divisible- but for test could assign responsibility for each injury to the part defen
without those who act the injury would not have occurred- two diff injuryies
two diff defendants and each pays for the specific injury that they cause
If divisblie the plainitff must establish which defendant caused which
harm
d. Indivisible injury- caused from both accident and both harm but because of both
it lead to the reaction or disease etc and that is indivisible – no way to identify
which one specific lead to that specific harm
e. Death can also be an indivisible injury
f. If indivisible the defendants must establish which D caused which harm or share
the liability between
E. When the tortious conduct of more than one defendant contributes to an
indivisible injury, the burden is on each defendant to apportion fault amongst
them based on each actor’s share of fault.
F. When the tortious conduct of more than one defendant contributes to an
indivisible injury, the burden is on each defendant to apportion fault amongst
them based on each actor’s share of fault. Pursuant to the state’s Uniform
Contribution Among Tortfeasors Act a defendant may seek contribution from
another joint, negligent defendant based on the proportion of fault of each
party. The purpose is to ensure that each tortfeasor contributes only that
portion of damages equal to the percentage of fault attributable to him. In
assessing percentages of fault the trier of fact must consider the fault of all
persons who contributed to the plaintiff’s injury, including the plaintiff if
applicable. In an indivisible injury case, the fact finder computes the total
amount of damages sustained by the plaintiff and the percentage of fault of
each defendant. The trier of fact then multiplies the first figure by the second
to give the maximum recoverable damages against each negligent party.
Here, the trial judge erred by placing the burden of proof pertaining to
apportionment of fault on Piner. Assuming that Piner proves that the
negligent conduct of both Jones and Richardson contributed to his overall
injuries, the burden of proof pertaining to apportionment will be on them.
a. Divisible and indivisible injuries
A. Multi actor cases can involve divisible or indivisible injuries
B. Divisible- it is possible to establish which actor caused which
harm. For divisible injuries, the but-for test for causation could
67
assign responsibility for each injury to the particular defendant
without whose act the injury would not have occurred (41)
C. Indivisible- there would be no way to identify whether it had
been caused by the defendant who broke the victim’s arm or the
defendant who broke the victims leg
D. Death can also be an indivisible injury
RODERICK v. LAKE
a. When the tortious conduct of two or more independent defendants combines to cause
injury to a plaintiff and the apportionment of damages cannot be proven by the
plaintiff, the burden is then placed on each defendant to show that he did not cause
the harm.
b. Each concurrent tortfeasor is liable only for his apportioned fault or negligence. When
the tortious conduct of two or more independent defendants combines to cause injury
to a plaintiff and the apportionment of damages cannot be proven by the plaintiff, the
burden is then placed on each defendant to show that he did not cause the harm
c. Here, the evidence presented at trial showed that the horses could not have escaped
the enclosure unless someone had left the gate door open. Edgar and Hohenberg
claim that the gate was secured. However, the mere fact that the gate was discovered
open after the accident negates the pairs’ assertions. The only inference that can be
drawn pursuant to the doctrine of res ipsa loquitur is that either Edgar or Hohenberg
failed to properly close the gate. Edgar claims that an inference of negligence on his
part is not permissible in light of his direct testimony that he properly secured the
gate.
d. Certainly, a plaintiff normally bears the burden of proving that a particular defendant’s
negligence caused his injury. However, when there are two defendants, each of whom
is an independent but concurrent tortfeasor and the matter of apportionment cannot
be determined, the wronged plaintiff should not be deprived of recovery. Rather, the
defendants should be left to work out between themselves the apportionment of
damages and to provide proof that he should not be liable for any portion of the
damages.
C. Concerted Action and Apportionment of Liability
A. Courts and legislatures have taken different positions on
whether defendants who act in concert will be held jointly and
severally liable or only severally liable
B. Concerted action cases are those in which an actor
A. Does a tortious act in concert with the other or pursuant
to a common design with him OR
B. Knows that the others conduct constitutes a breach of
duty and gives substantial assistance or encouragement
to the other so to conduct himself or
C. Gives substantial assistance to the other in accomplishing
a tortious result and his own conduct separately
considered constitutes a breach of duty to third person
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D. Allocating Responsibility to Absent or Immune Actors
A. When injuries are caused by more than one actor sometimes all
of the actors can be identified and sued
B. At common law with joint and several liability any defendant
could be liable to pay the entire damages awarded to the
plainitff
C. If another tortfeasor was immune or unknown the defendant
who paid the damages would never be able to be reimbursed
through a contribution
A. This is a pro plainitff result that is supported by a variety
of rationales including the fact that under the
contributary negligence system the only plainitffs who
were ever entitled to recover were plaintiffs who were
entirely free from blame
SULLIVAN v. SCOULAR GRAIN CO. OF UTAH
c. A court may apportion the fault of nonparty employers under state law
notwithstanding their immunity under a workers compensation statute.
d. Fault- any actionable breach of legal duty act or omission proximately causing or
contributing to injury or damages
e. A court may apportion the fault of nonparty employers under state law
notwithstanding their immunity under a workers compensation statute.
Sullivan argues that the Scoular Parties must be excluded from the
apportionment process because they are not named defendants still involved
in the litigation as defined by the Utah Comparative Fault Act (the Act).
f. While it is true that the Act defines a defendant as any individual or entity not
immune from suit, excluding the Scoular Parties from the apportionment
process would directly conflict with other sections of the Act which require
that no defendant may be held liable for damages in excess of its proportion
of fault. If the Scoular Parties are not included in the apportionment process,
the remaining defendants will be potentially liable for an amount in excess of
their proportion of fault.
g. If the Scoular Parties are not included in the apportionment process, the
remaining defendants will be potentially liable for an amount in excess of
their proportion of fault. Clearly, the intent of the legislature was to fairly and
equally distribute damages amongst defendants in accordance with each’s
proportion of fault. To exclude one party because it is immune would
frustrate the overall purpose of the Act. Nevertheless, Sullivan correctly
claims that if the Scoular Parties are included in the apportionment process
his recovery may be significantly reduced. Conversely, Trackmobile argues
that, out of fairness, each party and nonparty must be included in the
apportionment.
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h. Both the plaintiff and defendant in Sullivan cited statutory language
supporting conflicting interpretations of whether the liability of non-immune
defendants should be reduced to reflect the contributory fault of immune
parties
E. Intentional Conduct in a Comparative Setting
a. In some cases a plaintiffs harm is caused by one actors negligence and another
actors intentional tort
F. SLACK v. FARMERS INSURANCE EXCHANGE
a. Under a several liability scheme, fault may be apportioned among a
tortfeasor who acted negligently and a tortfeasor who acted intentionally,
even if the latter is not a party to the action.
b. Under Colorado’s several liability scheme, fault may be apportioned among a
tortfeasor who acted negligently and a tortfeasor who acted intentionally,
even if the latter is not a party to the action. Pursuant to state statute, a
defendant involved in a negligence action shall only be liable for damages not
greater than that represented by the degree or percentage of fault
attributable to the defendant. Further, a nonparty who settled with the
plaintiff prior to trial may be considered in the apportionment of damages
process.
c. There is nothing in Colorado law to suggest that a defendant should be
treated differently depending upon whether he acted negligently or
intentionally in contributing to an indivisible injury. To hold otherwise would
result in a negligent defendant bearing the full risk of the injury if the other
tortfeasor intentionally injured a plaintiff but share only a portion of the risk
if the other defendant acted negligently
III. Primary Assumption of Risk
a. Protects defendants from liability in some circumstances where risks
either cannot be eliminated or would be too costly to eliminate and
where those risks are typically obvious to the people who encounter
them
b. A person who reasonably believes another person knows about a risk
might reasonably undertake fewer burdens in protecting the other
person
c. A defendant either owed no duty or did not breach any duty
d. Simply a name for a type of argument a defendant may use to rebut a
plainitffs claim or evidence of duty or breach
e. A court may find there is no duty because the harm is unforeseeable or
no duty because public policy favors protecting suppliers of athletic
facilities
G. CLOVER v. SNOWBIRD SKI RESORT
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a. In Utah, a ski area operator is not immune from liability pursuant to the
state’s Inherent Risk of Skiing Statute if it fails to exercise ordinary care and
eliminate a known and unnecessary hazard that causes injury to a patron.
b. According to state law and as a matter of public policy a person generally may
not recover from a ski operator for injuries resulting from the inherent risk of
skiing. Utah Code Annotated 78-27-52(1) defines “inherent risk of skiing” to
include those dangers which are an integral part of the sport including, but
not limited to, changing weather conditions; variations or steepness in
terrain; snow or ice conditions; surface or subsurface conditions such as bare
spots, forest growth, rocks, stumps, impact with life towers, and other
structures and their components; collisions with other skiers; and a skier’s
failure to ski within his own ability.
c. Generally, the language utilized in the statute mirrors the doctrine of primary
assumption of risk—the idea that a defendant owes no duty to protect
another from certain harms. Snowbird argues that recovery for any injury
occasioned by one or more of the dangers listed in § 78-27-52(1) is barred by
the statute. The trial court agreed. However, Snowbird’s argument assumes
that the section must be read as defining all collisions between skiers as
inherent risks. The wording of the statute does not compel such a reading.
Rather, ski operators are shielded from liability only to the extent that those
dangers, under the facts of each case, are integral aspects of the sport of
skiing. Under §§ 78-27-51 to -54, a ski area operator is under no duty to make
all of its runs as safe as possible by eliminating the type of dangers that skiers
wish to confront as an integral part of skiing. However, ski area operators do
have a duty to use ordinary care to protect its patrons from unnecessary
hazards that could have been eliminated by the use of such ordinary care.
H. EDWARD C. v. CITY OF ALBUQUERQUE
a. A spectator at a commercial baseball stadium must exercise ordinary care to
protect themselves from the inherent risk of being hit by a baseball that
leaves the field of play and the owner/occupant of the stadium must exercise
ordinary care not to increase that inherent risk.
b. Generally, the question of the existence and scope of a defendant’s duty of
care is a legal question that depends on the nature of the sport or activity in
question, the parties’ general relationship to the activity, and most
importantly, public policy considerations. The special relationship between an
owner/occupant of a commercial baseball stadium and a spectator who
purchases a ticket to see a game clearly gives rise to a duty of care.
c. The baseball rule was a judicial attempt to articulate the duty owed by a
stadium owner to a spectator. The rule provides that where a proprietor of a
ball park furnishes screening for the area of the field behind home plate
where the danger of being struck by a ball is the greatest and that screening
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is of sufficient extent to provide adequate protection for as many spectators
as may reasonably be expected to desire such seating in the course of an
ordinary game, the proprietor fulfills the duty of care imposed by law, and
therefore, cannot be liable in negligence.
d. However, with the evolution of other legal theories such as assumption of the
risk, contributory negligence, and comparative fault, the baseball rule has
fallen out of favor with most jurisdictions. Instead, trial courts now generally
leave it for a jury to determine whether a stadium owner has breached a duty
owed to a spectator by increasing the risks beyond those necessary or
inherent to the game or otherwise impeded a fan’s ability to protect himself
against dangers. New Mexico law now requires that an owner/occupant of a
commercial baseball stadium owes a duty that is symmetrical to that of the
spectator. Spectators must exercise ordinary care to protect themselves from
the inherent risk of being struck by a baseball. Similarly, stadium owners must
exercise ordinary care not to increase that inherent risk. This approach
recognizes the impossibility of playing minor league baseball without balls
being hit by players out of the playing field.
I.
III. Duty to Rescue or Protect
I. Tort law does not generally require one person to rescue another from harm
despite the foreseeability of harm to that other person
J. A. General No-Duty-to-Rescue Rule and Its Exceptions
a. Rst, 37 No duty of care with respect to risks not created by actor
A. An actor whose conduct has not created a risk of physical or emotional
harm to another has no duty of care to the other unless a court
determines that one of the affirmative duties provided
B. There is no duty of care when another is at risk for reasons other than
the conduct of the actor even though the actor may be in a position to
help
K. LUNDY v. ADAMAR OF NEW JERSEY, INC.
a. A business proprietor has a duty to take reasonable action to provide
appropriate medical care to its patrons in times of an emergency, but does
not require the proprietor to provide all medical care that might be
reasonably needed by a patron.
b. Historically, a bystander owed no duty to an injured person to provide
affirmative aid, even if the bystander has the ability to help. However, the
evolution of the law has dictated that there are exceptions, namely when the
existence of a relationship between the victim and one in a position to render
aid may create a duty to render assistance. Certainly, a common carrier is
under a duty to its passengers to take reasonable action to protect them
against unreasonable risk of physical harm and to provide first aid if it knows,
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or has reason to know, that the passenger is ill or injured. Restatement
(Second) of Torts § 314A.
c. A similar duty is placed upon a business proprietor. However, such a duty
does not extend to providing all medical care that the proprietor could
reasonably foresee might be needed by a patron, such as having a full-time
physician onsite. The district court properly found that TropWorld
immediately summoned medical attention for Lundy once it was clear it was
needed. TropWorld fulfilled its duty to aid injured patrons by having at least a
registered nurse available, trained in emergency care and who properly
assessed Lundy’s medical situation and called for the paramedics.
Additionally, the state’s Good Samaritan Statute shields Nurse Slusher from
any potential liability for acts she performed while rendering care to Lundy.
Lundy attempts to get around the statute by arguing on what is known as the
“preexisting duty” exception to the statute.
d. There is a general rule that no person has a duty to rescue another from peril
even if that rescue could be accomplished easily
L. Duty to rescue in special relationships **even though an affirmative duty might exist
pursuant to the facts a court may decide based on special problems of principle or
policy that no duty or a duty other than reasonable care exists
a. Rst, 40 duty based on special relationship with another
A. An actor in special relationship with another owes the other a duty of
reasonable care with regard to risks that arise within the scope of the
relationship
B. Special relationships giving rise to the duty provided include
A. Common carrier
B. Employer with employees who while at work are
A. In imminent danger or
B. Injured or ill and thereby rendered helpless
C. A school with its students
D. Landlord tenant
C. The duty imposed applies to dangers that arise within the confines of
the relationship and does not extend to other risks
D. Generally the relationships are bounded by geography and time
E. Whether a relationship is deemed special is a conclusion based on
reasons of principle or policy
F. The list of special relationships is not exclusice
G. One likely candidate for an addition to be recognized is the one among
family members
b. Rst 37 No duty of care with respect to risks not created by actor
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A. An actor whose conduct has not created a risk of physical or emotional
harm to another has no duty of care to the other unless a court
determines that one of the affirmative duties provided
c. Rst 42, Duty Based on Undertaking
A. An actor who undertakes to render services to another and who knows
or should know that the services will reduce the risk of physical harm to
the other has a duty of reasonable care to the other in conducting the
undertaking if
A. The failure to exercise such care increases the risk of harm
beyond that which existed without the undertaking OR
B. The person to whom the services are rendered or another relies
on the actors exercising reasonable care in the undertaking
B. An actor who engages in an undertaking is subject to the ordinary duty
of reasonable care for risks created by the undertaking
C. An undertaking entails an actor voluntarily rendering a service
gratuitously or pursuant to contract on behalf of another
D. The undertaking may be on behalf of a specific individual or a class of
persons
E. The actors knowledge that the undertaking serves to reduce the risk of
harm to another is a prerequisite for an undertaking
d. Rst, 44 Duty to Another based on taking charge of the other
A. An actor who despite no duty to do so takes charge of another who
reasonably appears to be (A or B) has a duty to exercise reasonable care
while the other is within the actors charge
A. Imperiled and
B. Helpless or unable to protect himself or herself
B. An actor who discontinues aid or protection is subject to a duty of
reasonable care to refrain from putting the other in a worse position
than existed before the actor took charge of the other and if the other
reasonably appears to be in imminent peril of serious physical harm at
the time of termination to exercise reasonable care with regard to the
peril before terminating the rescue
C. When a rescuer injures another in the course of a rescue the ordinary
duty of reasonable care provided is applicable
D. The rescuer need only exercise reasonable care under the
circumstances
A. Those circumstances include the fact that the rescuer is acting
gratuitously
E. Taking charge of one who is helpless
A. The rescuer take charge of the helpless individual with the intent
of providing assistance in confronting the then existing peril
B. A rescuer must exercise due care and not cause the other to be
in a worse position than existed before the rescue
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M. Statute: GOOD SAMARITANS
a. Purpose- designed to encourage individuals to offer assistance to others in
emergencies
A. They may strike a balance between protecting defendants and assuring
injured people that those who aid them will act with some care
b. Persons protected
A. These statutes differ in how they identify those whom their provisions
will protect
c. Prior duty
d. Rst, 44, i. Good Samaritan Statutes
A. Beginning in 1959 most states enacted good Samaritan statutes
designed to encourage voluntary emergency care by providing a
measure of protection from civil liability for those who render aid
B. Many of these statutes limit or disallow the liability that would
otherwise exist
C. Nevertheless because these statutes often do nor provide complete
immunite from liability or cover all good Samaritans courts may still
confront the question of whether a tort duty exists for a rescuer
N. Statutory duty to rescue
a. These statutes create immunity from liability similar to the immunity described
in the good Samaritan law
O. Obligations to Rescuers
a. Danger invites rescue- duty owed to a rescuer by one whose conduct places a
person in peril
b. Rst, 32 Rescuers
A. If an actors tortious conduct imperils another or the property of
another the scope of the actors liability includes any harm to a person
resulting from that persons effort to aid or to protect the imperiled
person or property so long as the harm arises from a risk that inheres in
the effort to provide aid
P. McCOY v. AMERICAN SUZUKI MOTOR CORP.
a. Under the rescue doctrine, the rescuer still must prove that the tortfeasor’s
action was the proximate cause of his injury.
b. Defendant was negligent to the person rescued wnad such negligence caused
the peril 2. peril or appearance of peril was imminent 3. a reasonably prudent
person would have concluded such peril or appearance of peril existed 4.
rescuer acted with reasonable care in effectuating the rescue
c. Under the rescue doctrine, tortfeasors can be held liable for injuries that
occur to rescuers of the victims of the initial tortious act. This is because it is
foreseeable that a third party will come to the aid of the victim of a tortious
act. Under this doctrine, to keep with the principles of liability, the rescuer
still must prove that the tortfeasor’s act was the proximate cause of his
injury.
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d. In the present case, the issue of whether it was reasonably foreseeable that
the allegedly defective Samurai would result in a rescuer being hit by a third
party driver is “sufficiently close that it should be decided by a jury.” As a
result, the issue is remanded for a trial consistent with this opinion.
e. The rescue doctrine facilitates recovery by a rescuer against a defendant
whose conduct created the need for a rescue by recognizing the
foreseeability of a rescuer and harm to that rescuer
f. These elements are usually associated with finding that there is a duty to the
plaintiff
g. The doctrines utility depends on each jurisdictions treatment of that issue