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Outline Torts

(3) Types of torts
Intentional Harm
Strict Liability
Intentional Torts
Intentional torts focus on what the actor sought to achieve or knew would occur, rather than on
his motive for acting. Intention exists if the actor had knowledge, or desires or knew with
substantial certainty that certain results would follow.
(a) the person acts with the purpose of producing the consequence or,
(b) the person acts knowing that the consequence is substantially certain to result
Where conduct is not merely risky, but D intended consequence causing harm
Designed to protect interests we think to be important
Often protect mental or emotional harms
Prima facie case for intentional torts:
Act (volitional movement on D’s part);
Intent (denotes the particular means to effect result);
Causation (conduct of D is substantial factor in bringing about injury);
Injury (P must have suffered injuries)
Assault and Battery
Assault: the act of causing a reasonable apprehension of immediate harmful or offensive
Battery: the causing of harmful or offensive contact to P with the intent to make the
contact (physical).
Assault and Battery
The Rule: A Battery occurs when a person acts with the intent to inflict a harmful
contact on the person of another, and such contact occurs.
Elements of Battery:
(1) Volitional Act by the D: not shown if D has been forced to act
(2) Intent: (“intent” defined in one of two ways: D acts with purpose (“desire intent”) OR
D knows to substantial certainty (“knowledge intent”))
(3) Inflicts: causes contact
(4) Injury: harmful [OR offensive] permitting damages (for physical harm or damages
psychological insult [may be nominal])
To prove intent, P must show that D acts:
Elements of Assault:
(1) Act: Physical act or “offer of corporeal punishment (threat of physical injury)
(2) Intent: (“intent” defined in one of two ways: D acts with purpose (“desire intent”) OR
D knows to substantial certainty (“knowledge intent”))
(3) D’s act places P in reasonable fear or apprehension of imminent bodily harm.
The actor desires to cause the consequence of his act, or he believes that the consequences are
substantially certain to result from it.
Garratt v. Dailey (5-year-old kid pulls chairs)
Facts: P alleged D pulled a chair from under her causing her to fall and break her hip. She brings
cause of action for battery.
Rule: D may be held liable for battery even if he did not subjectively intend to cause the harm
but knew with substantial certainty that his actions would likely cause it.
Analysis: Since the court found that D knew with substantial certainty that P would attempt to sit
where the chair was, we had the needed intent. Typically, we rely on an objective analysis
(Drawing inferences from the facts). Minors are liable as adults for torts with force.
Picard v. Barry Pontiac-Buick (Touching the camera)
Facts: P, disappointed with her brake work, returned for a reinspection with a camera to use for a
troubleshooting report. During dispute, P alleges that D spun around and lunged at her, touching
her camera. It is undisputed that P pointed finger at her as he approached and touched her camera
(as he intended to do so) causing permanent damage to her back. D denies grabbing P or
threatening her in any way.
Rule: 1) D may be held liable for assault if P shows she was in fear of imminent bodily injury
2) D may be held liable for battery if there was intentional infliction of harmful or
contact (plus causation and damages)
Analysis: 1) Assault: Facts (including photo) show D pointed finger at P while approaching (in
anger) … this shows both threatening behavior by D, and reasonable apprehension on part of P.
2) Battery: Court found that facts show D touched her camera. Because it was “a thing
so connected with the body” as to be “universally regarded as part of the other’s person,” this is
evidence that amounts to making contact with her body; thus, P established a prima facie case of
battery by D. Touching camera in hand of P [while in anger, court suggests] is offensive. If she
was actually injured, then it was both harmful and offensive. But we only need one.
Wishnatsky v. Huey (overly sensitive Christian)
Facts: Wishnatsky entered a room where Huey was talking with an attorney about private
matters. When P began to open the door, D pushed the door into P and yelling get out
Rule: D may be held liable for battery if there was intentional infliction of harmful or offensive
contact (plus causation and damages)
Analysis: All elements of battery have been met, however, P was at work, entered office without
knocking, so the response by D was predictable AND P was unduly sensitive. “It must offend a
reasonable sense of personal dignity.”
Context matters: must be “contact that is unwarranted by the social usages prevalent at the time
and place at which is inflicted”. This was in a professional employee setting. P entered a room
where a private conversation was occurring without announcing himself or his entering.
False Imprisonment
False Imprisonment: One who unlawfully acts to (1) intentionally (2) restrain or confine
another in a bounded area (resulting confinement; &, no reasonable means of escape) may be
liable for False Imprisonment. -- P must be conscious of constraint for it to be actionable as a
tort; thus, confinement facts must be both objectively and subjectively shown by the P.
Lopez v. Winchell’s Donut House
Facts: P was asked to go to the back of the shop with D for a talk of alleged theft
Rule: D may be held liable for False Imprisonment if he intentionally restrained or confined P
Analysis: P voluntarily consented to the confinement. There was no actual or legal intent to
restrain her from leaving. She stayed because she felt obligated to defend her name. But she
admits that she felt free to leave at any time.
(1) Physical Barriers
(2) force
(3) threat of force
(4) other duress (and/or)
(5) improper assertion of legal authority
Intentional Infliction of Emotional Distress
Intentional Infliction of Emotional Distress: Physical injury or severe mental suffering
resulting from emotional disturbance caused by D, who intended to cause mental suffering by
his words or acts, or who had reckless disregard that harm would result. The words or acts
must be extreme or outrageous, exceeding all socially acceptable standards, and must cause P
serious injury.
Womack v Eldridge (Shady investigator)
Facts: D investigator tricked P into letting her take photo which was used without his knowledge
in a sex abuse case. P in fact had nothing to do with crimes committed, he merely worked at
same place as D on trial. P testified he suffered shock, distress, and fear that people would think
he was a child molester.
Rule: One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress absent bodily
injury. Conduct must be reckless or intentional
Analysis: (D should have known such distress would result); the conduct offends against accepted
standards of decency; there was a causal relationship between D conduct and P distress; distress
was severe.
Cause of action for emotional distress unaccompanied by physical injuries provided four
elements are present:
(1) Wrongdoers conduct is intentional or reckless
(2) Conduct was outrageous and intolerable in that or offends against the generally accepted
standards of decency
(3) There is a causal connection between the wrongdoer’s conduct and emotional distress
(4) The emotional distress was severe
Negligence in torts is a failure to behave with the level of care that someone of ordinary
prudence would have exercised under the same or similar circumstances. The
behavior usually consists of actions, but can also consist of omissions when there is
some duty to act (e.g., a duty to help victims of one's previous conduct).
Elements for Negligence
(1) General Duty: the existence of a legal duty that the defendant owed to the plaintiff
(2) Breach: defendant’s breach of that duty
(3) Causation: proof that defendants breach caused the injury
(4) Damages: plaintiff suffered injury
Hammontree v. Jenner
Facts: D had a history of epileptic seizures. He had not had a seizure for 14 years and has been taking
medications to prevent them from occurring. A seizure occurred when he was driving his car causing
him to go through P’s bicycle shop injuring a couple. D had a valid driver license and authorities knew of
his condition. P sued for strict liability.
Rule: Strict Liability is not an appropriate theory for recovery when sudden illness renders an automobile
unconscious. Generally, falls under negligence.
Analysis: Since D used reasonable care to control his seizures, no negligence is proven. His duty was to
control his seizures. As he did, therefore, no breach.
The Central Concept
Standard of Care: The degree of care which a reasonably prudent person should exercise to guard
against probable danger (foreseeable harm).
Degree of duty depends on
Lawful act
Harm must be reasonably foreseeable
BPL formula
Risk of harm must be reasonable
Customs (Messy Golfer Hypo)
Brown v. Kendall (Dog fighting)
Facts: P and D were out walking their dogs when they began to fight. D got a stick and started
hitting dogs to break it up. Accidently hit P in the eye causing a severe injury.
Rule: To establish liability in an unintended accident case, P has burden to prove D’s failure of
due care
Analysis: D committed a lawful act and was not at fault. At the trial level, the judge informed
jury that D must have took extraordinary care when acting. Appellate court states it should have
been “due care” or “ordinary care”. The act in which D was engaged at the time of incident was
necessary and thus lawful, and while committing this act he exercised ordinary care In addition,
they put establishing due care on D when it properly lays with P.
Key takeaway: Brown gives us the emergence of core elements of negligence law. The “standard
of care” (reasonable care/ordinary care) that applies where the injury was caused unintentionally.
It is the burden of P to prove breach of that standard of care by reference to facts showing D’s
unreasonable conduct. D may be held liable if that happens.
Adams v. Bullock (Boy gets electrocuted)
Facts: A boy was walking along a bridge and swung an 8-foot wire coming in contact with D’s trolley line
beneath the bridge. Adams ends up electrocuted and suffers severe injuries.
Rule: A duty exists to adopt all reasonable precautions to minimize possible peril. A party is not
negligent for not providing protection against an unforeseeable, extraordinary injury that would be
extremely difficult to prevent. The harm must be reasonably foreseeable.
Analysis: When considering negligence cases, the court must consider:
Prudent foreseeability
Practicality of taking precautions
Frequency of similar accidents
Passage of time
D’s awareness of surrounding environment
United States v. Carroll Towing Co. (barge)
Facts: P’s barge broke loose from its moorings and sunk because an employee left it unattended for 21
hours. P claimed D was negligent in leaving the barge unattended for that period of time. This was
during war and barges were constantly being towed in and out of the harbor. P sued D for damages. D
claimed P was contributorily negligent for not having an employee aboard.
Rule: No general rule to determine when the absence of an attendant will make the owner of the
barge liable for injuries to other vessels if she breaks away from her moorings. The owner’s duty, as
in other similar situations to prevent against resulting injuries is a function of the BPL formula found
by Judge Learned Hand.
Analysis: A balancing test has ben established to determine whether a breach of the duty of ordinary
care occurred. Most courts have employed Judge Learned Hand’s formula: B<P*L to establish a
breach of duty.
Barge owner’s burden (B) was less than the probability that the barge would break away (P)
multiplied by the gravity of resulting injury (L), therefore, barge owner is negligent.
This flexible formula:
(1) Permits the fact-finder to balance:
The Burdens of taking precautions against harm (B)
The Probability of harm(P) multiplied by the magnitude of Loss (L)
(2) And: it clarifies and gives content to the idea of “unreasonable risk” and what we mean by the
“failure of due care” or “breach.”
Bethel v. NYC Transit (wheelchair seat on bus)
Facts: P was injured in a wheelchair accessible seat when it collapsed during a bus ride. P won a jury
verdict on the “highest” or “utmost care” standard.
Rule: Reasonable care under same or similar circumstances will govern conduct of a “common carrier.”
“Highest” or “utmost standard” of care will not apply here.
Analysis: Although the reasonable standard of care was applied, it will likely not change the result. Court
believed the “utmost care” standard will likely be prejudicial against Defendants because it might tend
to cause juries to hold find against common carriers more readily.
Baltimore & Ohio R.R. v. Goodman (stop, look, and listen)
Facts: D truck driver’s view of tracks was obstructed as he crossed railroad tracks he was hit by an
oncoming train. Whether the jury should have been allowed to determine if P acted negligently
where facts suggest P’s conduct violated the standard of due care (and thus the rule of contributory
negligence applied).
Holding: D was contributorily negligent. A motorist crossing a RR track with an obstructed view must
stop, look, and listen for the train AND if necessary, get out of his car to avoid being found negligent.
A person who has failed to exercise reasonable care to avoid an accident is not entitled to recover
damages from the other party.
Note: Although ordinary questions of due care are left to the jury to decide, when the standard of
conduct is clear it should be laid down once and for all by the court. When one cannot see whether a
train is coming or not, the standard is the stop, look and listen rule. (not good, no questions of due
care are left to jury).
Pokora v. Wabash (…Not all the time)
Facts: P hit by train after not getting out of car to stop, look and listen. His view was obstructed.
There was a possibility that a train would have crossed by the time he got back to his car.
Rule: unless reasonable minds could not differ on the standard of care which measure actions of P
and D, the jury would decide. Failure to get out of a vehicle and look before crossing a railroad track
is not contributory negligence as a matter of law. The duty varies with circumstances P should be
given the chance to let the jury decide the extent to which negligence contributed to accident.
1. Role of Custom: where the customary conduct was followed such conformity may be introduced
as evidence of reasonable care. However, custom is merely evidence of the standard of care owed,
the test is still whether the average reasonable person would have so acted under the
Trimarco v. Klein (tempered shower glass)
Facts: P tenant was badly cut when he fell through the glass door that enclosed the tub in his
apartment. Custom was to use shatter proof glass to meet accepted safety standards.
Rule: If P proves a well established custom with a relevant safety purpose, jury may consider D’s
deviation from that custom as evidence of breach of the RPP under SSC Standard of care.
Rule: P may offer evidence of custom, common usage and practice in making his case for
negligence. But such evidence is not binding because RPP SOC is used. Evidence of custom can
be used to indicate D’s proper standard of care. Custom does not have to be universal (can be
local). Evidence of custom is not conclusive, but evidence of conformity to custom may show due
care and evidence of failure to follow custom may show failure to use reasonable care. In deciding
on the evidence, jury decides on the reasonableness of the behavior (whether a reasonable person
would adhere to it). Other factors are cost of the adherence, ready availability of necessary
materials, and whether previous standard was disregarded by new one.
2. Role of Statutes: some standards of care are defined by statutes.
Negligence Per se – majority view which finds violation of a statute as a conclusive presumption of
Statutes do not advocate standard of care
Compliance with a statue is not always enough to vacate negligence
Violation is excused if:
-violation is safer and reasonable (Tedla)
-statutory purpose does not include the harm that occurred
-licensing statute
Violation of statutory duty is excused if compliance would be more dangerous than
Statutory purpose – when harm is different than what the statute intended; courts are
unwilling to apply statute.
Matine v Herzog (buggy with no lights)
Facts: P’s husband was killed when the buggy he was driving at night without lights (violating a statute
stating he needs lights at certain times) collided with D’s car which was driving over the center line.
Rule: Unexcused failure to perform a statutory duty constitutes negligence per se, which can be prima
facie evidence of negligence.
Analysis: P was found contributorily negligent by violating the stature. In most states, violation of a
statute establishes a prima facie case of negligence shifting the burden of proof and in others only
evidence of negligence shifts the burden of production. Minority view held that an unexcused violation
of a statute is only evidence of negligence for the jury to determine.
1. Violation is safer
Tedla v. Ellman
Facts: Ps were walking with their back to the traffic (on left side of the highway) in violation of a
statute and were hit by a car. Statute said that they walk on the left side of the road. There was
heavy traffic and they walked on the right side of the road, whereas traffic was light on the left side.
Rule/Analysis: It is not negligent as a matter of law for one to violate a statute, if by doing so he is
likely to prevent rather than cause the harm which is the statute’s purpose to avoid.
2. Statutory purpose does not include harm that occurred. To invoke a violation of a statute as
evidence of negligence, P must show that that the injury sustained was of the type the statute was
intended to prevent.
3. Licensing Statutes: Generally not used to set standards of care. The purpose of such statutes
are to protect the public from unskilled persons. If that is the purpose, P must prove that D lacked
required skill – in effect, proving negligence.
4. Compliance with statute may not exculpate negligence.
Proof of Negligence
*Three types of proof:* (*Concept not covered in class)
Real Evidence: documentary evidence
Actual Notice: a direct positive knowledge of fact or information sufficient to put a
reasonable prudent person on notice of such fact.
Direct Evidence: eyewitness
Circumstantial Evidence: create an inference of what happened
1. constructive evidence
2. Res Ipsa Loquitor
3. Mode of Operation
1. Constructive notice: circumstantial evidence giving rise to negligence. Must be visible and
apparent and must exist for a sufficient time prior to accident: knowing of the danger, or should have
known of the danger, which D has control over and takes no steps to remedy the situation. There
must a sufficient amount of time for D to take measures.
Negri v. Stop and Shop
Facts: P slipped and fell in D’s store and alleges that broken jars of baby food on the floor were the
cause of her fall. Evidence showed that the food was dirty, that no jar had broken within 20 minutes
prior to the accident, and that the floor had been cleaned 50 minutes and two hours before the
Rule: A prima facie case of negligence may be established by circumstantial evidence that a party
did not act to remedy a potentially hazardous condition of which the party had constructive notice.
The court said there is no reason to believe that circumstantial evidence was insufficient to permit
the jury to draw the necessary inference that a slippery condition was created by the jars which had
fallen a sufficient length of time prior to the accident to peril D to discover and remedy the condition.
Thus, it should have been left to the jury to decide if D had constructive notice.
Gordon v. American Museum of Natural History
Facts: P slipped and fell on D’s steps. P blamed fall on a slip of wax paper from concession stand
contracted by D and which D failed to discover and remove.
Rule/Analysis: General awareness that litter may be present is not sufficient enough to charge owner
with constructive notice. To constitute “constructive notice" a defect must be visible and apparent
and it must exist for a sufficient length of time prior to the accident to permit D’s employees to
discover and remedy it. (Negri) In this case, there is not enough evidence which indicates that
anyone including P observed the piece of white paper prior to the fall nor did anyone describe the
paper to be dirty, which would have been an indication that it had been present for some time. Thus,
paper could have been deposited there minutes or seconds before the accident.
2. Mode of Operation*: Ps not required to prove actual or constructive notice because proprietor
(knows danger of his own business) could reasonably anticipate that hazardous conditions would
regularly arise.
3. Res Ipsa Loquitur: (the thing speaks for itself) RIL is a rebuttable presumption of negligence that
is invoked when parties, especially P, don’t know what caused the injuries and when D has better
access to evidence concerning the cause of injury. NOTE: RIL is used to establish negligence, and
can and should be treated separately from causation (but not always). Also, RIL presumes
negligence. Important: RIL is used to establish that D had to be negligent, unless he can disprove it.
But when there is more than one D, a problem arises when the facts show that not all D could have
been negligent, but rather only one had to be negligent (Ybarra).
Three elements of res ipsa loquitur
The accident must be of a kind which ordinarily does not occur in the absence of
Must be caused by an agency or instrumentality within the exclusive control of D.
Must not have been due to any voluntary action or contribution on the part of P.(only in
minority of jdx)
Byrne v. Boadle
Facts: P struck by barrel of flour from D’s shop which deals in flour although P did not see where the
barrel came from, a witness confirmed.
Rule/Analysis: Case can go to jury simply by showing that there was an accident, and it was caused
by the barrel. It is only necessary that reasonable persons would say that more likely than not there
was negligence. The falling barrel is prima facie evidence of negligence. D was in custody of the
barrel and is responsible for the acts of his servants. If there are any facts inconsistent with
negligence, D must prove them. (Res Ipsa Loquitor)
McDougald v. Perry (tire falls from trucks cradle)
Facts: D has control of a truck with a chain mechanism securing a tire which escaped and crashed into
P’s car.
Issue: Can P establish breach based on these facts
Rule/Analysis: If P can show (1) instrumentality causing her injury was in D’s “exclusive” control at the
time of the accident and (2) the accident is one which would not ordinarily occur without negligence on
the part of the one in control of the instrumentality, then P is entitled to Res Ipsa Loquitur instruction.
Medical Malpractice
Ybarra v. Spangard (departure from the rule of exclusive control)
Facts: P consulted D, who diagnosed appendicitis and arranged to have an appendectomy to be
performed at hospital owned by another D. Prior to the operation, P was wheeled into the operating
room by D, a nurse, and his body was adjusted on the table by D, another doctor, who pulled P to
the head of the operating table and laid him back against two hard objects at the top of his
shoulders. P awoke the next morning attended by D and another nurse. P felt sharp pain between
his neck and right shoulder which spread to his lower right arm, although he had never suffered pain
or injury there. P’s condition worsened to paralysis.
Issue: Could the trial court have used the theory of res ipsa loquitur in these circumstances where P
received injuries while unconscious?
Analysis: Yes. This doctrine is sometimes uncertain in injury from medical treatment, but it is not fair
that in this case because patient was unconscious that it does not apply. If we do not apply this
doctrine then P might not recover for damages. Since P was rendered unconscious to receive
medical treatment, those entrusted with his care have the burden of explaining. Every D who had
custody of P had a duty of ordinary care to make sure he was not unnecessarily injured. Employer is
liable for conduct of its employees and under respondeat superior, a doctor is liable for negligence of
assistants. Requirements 1 and 3 are easily met in this case. In terms of second requirement, each
D had within its control one or more instrumentalities by which P may have been injured. D contends
that there is no showing of which instrument or whose instrument caused the injury. But it is
unreasonable to expect P, who had been rendered unconscious to identify the negligent D or the
instrument. It is enough that P shows injuries resulted from external force.
Note: this rule prevents the “smoking out of evidence" policy used to escape liability by members of
the same profession. The flexibility of exclusive is only accepted in medical cases.
Standard of care
 set by med custom
 P must bring expert witness to establish standard of care (except when negligence is
obvious to lay person)
 D must meet minimum standard of skill and knowledge commonly possessed by
members of the profession in good standing
 Two main standards: Local and National
Local standard: a familiarity local standard of care is sufficient and can be shown by study,
experience, or both.
National standard: is permissible where the national standard of care is the same as the standard of
D medical community. Commonly applies when the physician is a specialist and medical education
becomes more uniform.
B. P usually needs an expert witness because of “conspiracy of silence"
C. Physicians judged by reasonable prudent physician standard which allows custom to set the
Matthies v. Mastromonaco
Facts: P, 81 year old, suffered permanent disability after Dr. chose bed rest rather than surgery to repair
her broken hip. P claims she would not have consented to bed rest if doctor had explained the risk and
likely outcome from bed rest.
Rule/Analysis: P is entitled to have jury consider informed consent instruction and claim, where Dr chose
a noninvasive treatment plan and did not (1) obtain P’s consent regarding material risks of
recommended noninvasive procedure (bed rest) and (2) did not discuss medically reasonable
alternatives. To obtain informed consent to one of several alternative courses of treatment, the
physician should explain medically reasonable invasive and noninvasive alternatives, including the
material risks and likely outcomes of each, even when the chosen course is noninvasive.
Sheeley v. Memorial Hospital
Facts: P suffered complications during an episiotomy (cutting open into the mother perineum to
facilitate birth and then stitching it up after the fact).
Issue: Did the trial court err in excluding P’s national board certified OB/GYN expert witness from
testifying as to the SOC in a medmal case involving a harm suffered after a child birth procedure?
Analysis: Yes, the trial court erred in excluding the witness (because he was qualified with knowledge as
to the procedure at issue. By introducing an expert witness, Dr. Lesli, to describe the standard of
care/conduct for evaluating Dr. Leslie’s actions, and then describing Dr. Leslie’s actions and their
nonconformance with that Standard of care.
Civil code requires expert to have “knowledge, skill, experience, training, or education in the
fields of the alleged malpractice
P’s expert had such knowledge as a board certified OB/GYN, teacher, and member of the
standards-setting council
In determining the relevant custom in Rhode Island, the “similar locality” rule is outmoded and
is overruled here, replaced by a national standard rule.
Special Relationships
Harper v Herman (boat in shallow waters)
Facts: P was on a private social outing on a boat with D (prior to this they haven’t met) and after asking
if he’s going in and hearing an affirmative, dives into 2-3 feet deep water. Became paralyzed after.
Rule: Limited “Affirmative” Duty to act (nonfeasance – passive inaction to protect). Generally there is no
duty to warn another of impending harm. Exceptions are those that recognize a special relationship
between P and D. Only one possibly applicable here is persons having custody of another under
circumstances depriving other of normal opportunities for self-protection
Analysis: P was not particularly vulnerable. D had no particular power or custody over the adult-aged
Herman. Harper did not allege expectation of protection from Herman. Summary judgement entered for
Farwell v. Keaton (friends out drinking)
Facts: After drinking some beers, P and D went chasing girls. P got caught and was beaten. D put him in
the car and took him to his place. He was unable to get him out of the car so just left him there
overnight. P eds up dying.
Rule: D owed a duty to P because of their special relationship.
Analysis: D owed a duty to P (1) to provide reasonable assistance to p after voluntarily undertaking
assistance and (2) he also owed him a duty as his companion on a social venture. This set forth a new
type of new special relationship.
Summary of Duty at Common Law, so far:
A. Generally, one owes a general duty of due care to another who may foreseeably be
injured through their affirmative conduct– actions or negligent omissions (failing to do
something an RPP would do while engaged in some other activity).
B. However, where D’s conduct amounts to the failure to take steps to benefit others
for whom you otherwise have no responsibility, D has no duty to act to assist or warn
another, unless P can show (notes pp 132-34):
(1) Special relationship exists (Harper-R2d-314A) (n. 2a)
(2) D Voluntarily undertook rescue or promised to assist or act in favor of P (e.g.,
Farwell) (n. 2b)
(3) Non-negligent injury by D (n. 2c)
(4) Non-negligent creation of risk by D (n. 2d)
(5) Duty may be implied under a Statute (n. 2e) (we haven’t yet read about this
rule/analysis; see p.159)
Contractual Duty: where there is a detriment reliance or otherwise elements of consideration, a
contractual relationship exists so as to legally impose a duty on a person to act, to prevent physical
Public Policy: a public duty based on privity of contract exists to specific individuals of the
community. A duty does not exist to foreseeable noncustomers (to allow liability in these cases
would open the doors for mass tort claims (Strauss).
Strauss v. Belle Realty (contractual relationship)
Facts: P tenant fell down D’s defective steps during a city blackout. D Con Edison had a contract
with D landlord. P sued landlord for lack of maintenance and the utility company for negligence.
Issue: Whether D has a duty toward P for injuries from a fall on a dark stairway that could have been
Rule: Utility company does not owe duty of care to a tenant because the utility has only contracted
with the landlord. This, like the Moch case, would create unlimited liability. Foreseeability alone did
not establish liability.
B. Obligations to Control the Conduct of Others
1. Duty to warn: once a person knows or should know that his patient presents a real danger to a
3rd party there is a duty to warn or otherwise take reasonable action to prevent the danger
(Tarasoff). Note: there is an affirmative duty to 3rd party based on relationship with a patient (see e.e.
Tarasoff – psych fails to warn of death threat)
Criteria to determine duty to control conduct of others:
 Primary purpose of the relationship
 Professional qualifications
Arguments against disclosing danger to others:
 Warning to police may give rise to arrest under false pretense
 Warning to victim can cause personal adverse effects which may be unjustified
 Breach of confidentiality harms doctor/patient relationship
 Difficulty of predicting violent tendencies and possible harm
Tarasoff v. Regents of the U of California (duty to warn)
Facts: Doctors at D university hospital knew that a mental patient they were releasing intended to kill
Tarasoff. Ds did not warn P of danger and she was murdered.
Rule: Because of a psychologist’s special relationship with a patient, he has a duty to warn a
foreseeable, identifiable third person of the patient’s violent intentions, even if the psychologist has
no special relationship with the foreseeable victim. D argues therapists cannot accurately predict
violent behavior, yet if serious danger of violence is determined or should have been, the therapist
has a duty to exercise reasonable care to protect the foreseeable victims. D’s claim of risk of
damaging professional relationship with patient does not negate duty to protect threatened victim.
This risk is within the public interest.
Exception to duty to warn:
Vince v. Wilson (negligence)
Facts: P was seriously injured in a car accident with Wilson’s grandnephew. P sued D who bought
car for her grandnephew, for the tort of negligent entrustment.
Rule: A person who knowingly purchases a car for an incompetent driver may be liable for negligent
entrustment (liability from the combined negligence of both the negligence in trusting the
incompetent driver with the car and the negligent operation of the car).
D Wilson knew nephew had failed driving test several times and that he abused drugs and alcohol.
Landowners and Occupiers
Trespasser: One who enters into or remains on property without the consent of the owner. An
owner’s duty is to refrain from willful, wanton or intentional injury. An owner is not liable for injuries to
a trespasser for failure to exercise reasonable care:
 to put land in a condition which is reasonably safe for trespassers
 to carry on activities so as not to endanger trespassers
Rule: a landowner has duty if he is aware of the trespasser’s existence and if conditions
existing are artificial or static (e.g., quicksand, stream, entrapment or non-natural device),
highly dangerous and concealed, provided that the owner has knowledge of conditions.
Child trespasser: a landowner is liable for injuries to children trespassing caused by artificial
Where the landowner knows or has reason to know that children are likely to trespass
where the conditions exist
Where the landowner knows or has reason to know and which he realized or should
realize will involve unreasonable risk of death or serious bodily harm to children.
Where the children because of their immaturity do not realize the danger involved.
Where utility of maintenance is slight in relation to the burden of eliminating the risk
compared to the risk to the children.
Owner fails to exercise reasonable care to eliminate the danger to protect the children.
Licensee: one who comes on the land with landowner’s consent, for his own purposes (social
guests, excluding business guests). Owner has a duty to warn and disclose of concealed dangers
known to owner and unknown to the guest (e.g., broken faucet, pit fall). There is no duty to inspect
for defect or known defects since licensee takes property as the owner.
Invitee: a person who is permitted to enter with the owner’s consent, express or implied, where the
premises are open to the public and/or business related. In addition to the duties owed to the
licensee, the owner owes a duty to exercise due care and reasonable safe conditions to an
invitee. There is an affirmative duty to inspect and correct dangers, thus the highest degree of
protection. Two types of invitees: commercial or open to the public.
Carter v. Kinney
Facts: Ds offered bible study at their home. P slipped on patch of ice in D driveway and broke his
leg. D had shoveled snow night before but didn’t know ice had formed overnight.
Issue: Whether P was an invitee or a licensee
Holding: Summary judgement for D affirmed since D’s conduct conforms with the standard of care
P’s status imposes on him. P was a licensee and not an invitee because D did not expect any
benefit from him, and did not open the study to the public, which would imply the warranty of safety.
An owner owes a licensee the duty of exercising reasonable care to make safe dangers of which the
owner is aware. The licensee takes the property as the possessor uses it and does not expect
that they will be prepared for his reception.
Rejection of categories: California has elected to abolish the distinctions between invitees,
licensee, and trespassers, and hold everyone to a standard of reasonable care. The primary goals
are to disallow confusion, make the landowner no longer immune, make claims easier for P, avoid
litigation costs, reasonable people do not act according to categories, and landowner has the control
of instrumentality.
Reynolds v Hicks
A social host does not owe a duty to third parties harmed by intoxicated minor guests of D
Heins v Webster County (licensee/invitee distinction)
Facts: P went to hospital to see his daughter. Slipped at the entrance and was injured. He was held a
Rule: Court decided to abolish the distintion between licensee and invitee. There is no different now.
Only trespasser and invitee.