Negligence Elements
Negligence – go through this for every question
1. Duty (of reasonable care)
2. Breach
3. Causation
4. Damages
Duty/Breach
1. The Reasonable Person – acted with care in such a way that an “average prudent/reasonable” person would
a. Exceptions:
i. Beginners and Experts
ii. Children and Adults
iii. People with Physical Disabilities
iv. People with Mental Illness (insanity, sudden physical incapacitation)
v. People with Mental Disabilities
2. Calculus of Risk (Hand Formula)
3. Custom
a. As evidence = current rule
b. As unbending test
c. Not let in at all
d. Private custom
e. Medical Malpractice – custom is the test of negligence
i. Two schools of thought
4. Medical Malpractice
a. Informed consent – Canterbury & Bly
b. Amount of disclosure
c. Doctor’s knowledge
d. Patients understanding
5. Negligence Per Se (statutory negligence)
a. Statutory purpose rule = majority
b. Excuses
i. Violating is safer
ii. Reason for incapacity – child not held to NPS if doing childlike activity
iii. Reasonable in actor’s incapacity, physical disability or emergency
6. Res Ipsa Loquitor – throw in one sentence at end of essay if can
a. Accident is one that ordinarily doesn’t occur without negligence AND
b. Instrument that brought about the harm has to be the cause and relevant at the time AND
c. Not solely due to voluntary act or omission of the π
d. RIL in Med Mal
e. RIL with multiple ∆s
Defenses to Negligence (Plaintiff’s Fault)
1. Contributory Negligence
2. Last Clear Chance Doctrine – helpless π & inattentive π
3. Assumption of Risk
a. Voluntary
b. Knowing
c. Agreement
d. Medical context
e. Tunkl Factors for negating exculpatory clause
4. Comparative Negligence
a. PURE FORM
b. Modified Form
Causation  “But For” & Proximate Cause
1. Cause in Fact (“BF”) RST §26
a. Division of Authority
b. Burden of Proof – π ordinarily but can be shifted to ∆ if lack of proof is due to a statutory violation
c. When negligence causes incremental increase in the chance of harm
2. Exceptions to the “BF” Test
a. Multiple Acts RST §27 (multiple sufficient causes)
b. Alternative Liability RST §28  Summer’s Rule
c. Market Share Liability
d. Concert of Action
e. Loss of Chance of Survival (Increased Risk of Loss)
3. Proximate Cause RST §29, 30, 34
a. Minority: Direct Consequences test (Polemis)
b. RST §29 Minority Rule: Reasonably Foreseeable Consequences Test (Wagon Mound)
c. RST §30: actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that
does not generally increase the risk of that harm
d. RST §34 Intervening Causes
4. Exceptions to RST §29, 30, 34
a. RST §33: scope of liability (on handout)
b. RST §32: Rescuer Rule
c. Thin Skull Rule
d. RST §36: illustrated by Kingston fire case
e. RST §35: Special Rule for Enhanced Harm
f. Last Wrongdoer Doctrine
g. Coming to a Rest Principle
5. Proof of Factual Causation – the use of Expert Testimony
a. GE v. Joiner is the law in Gribbon
i. Relevance
ii. Reliability
b. Not used anymore but maybe mention:
i. Daubert
ii. Frye
6. Vicarious Liability
a. Prove the employee committed a tort in the course of his employment
b. Motive Rule = majority
7. Joint & Several Liability
a. Gribbon only have several liability
b. Contribution
c. Indemnity – 4 kinds
d. If not indemnity:
i. Divisible Harms
ii. Indivisible Harms
8. Negligent Infliction of Emotional Distress
a. May or may not have impact rule in Gribbon so talk about both
i. Impact Rule
ii. “Zone of Danger” Rule
iii. Exceptions to the Default Rule RST §47
iv. RST §48
Affirmative Duties
1. The Duty to Rescue – no general affirmative duty to help others
2. Exceptions to the Affirmative Duty Rule:
a. RST §38: statutes
b. RST §39: prior conduct (of the type and characteristic)
3.
4.
5.
6.
7.
c. RST §44: aid to the helpless, once begun, then undone
d. RST §327: interfering with someone trying to render aid
Duties of Owners & Occupiers of Real Property
a. Traditional Entrants Approach = Gribbon Follows
i. Trespassers – duty not to harm by willful wanton misconduct
ii. Licensees – no duty to insure premises is safe
iii. Invitees – duty to warn of dangers, take reasonable steps to discover dangers, and have
reasonable duty to keep the land safe
b. Modern approach
c. Intermediate approach
d. Attractive Nuisance RST §339
Gratuitous Undertakings – an affirmative duty based on the reliance of an undertaking
a. RST §42
b. Limits on Reliance
Privity
Special Relationships
a. RST §315: general principle
b. RST 3d §40
i. Common carrier/passenger
ii. Innkeeper/guest
iii. School/students
iv. Landlord/tenants
v. Custodian/those within custody
c. Landowner affirmative duty to tenants through safety measures
d. Criminal attacks
e. Big Change in Torts (not traditional doctrine)
f. Off-premises liability
Special Relationships between the ∆ and the aggressor
a. RST §41: duty to 3rd persons based on special relationship
i. Parent with dependent
ii. Custodian with those in custody
iii. Employer with employees
iv. Mental health pro with patients
Damages
1. Compensatory
a. Lost income
b. Medical Expenses
c. Pain & Suffering
d. Thin Skull Rule
e. Loss of Enjoyment of Life
2. Judicial Review for Damages
a. Test
b. Approaches for excessive damages
c. Statutes
d. Award schemes
e. Wrongful Death and Survival Statutes
f. Loss of Consortium
3. Federal
a. Substantive Due Process
4. Punitive – to punish and deter when ∆ conduct is especially egregious
a. Reprehensibility, disparity, difference
5. Collateral Benefits
a. Traditional Collateral Source Rule
**PERSONAL AUTONOMY!!!!**
Only do one or two sentences per topic about policy arguments at the end if there are some
ARGUE BOTH SIDES
Attack
1.
2.
3.
4.
5.
Hit issue
Put elements
Put case (if relevant)
Analogize case
Maybe policy – don’t waste too much time on this
Start the Negligence Essay: “This is an unintentional harm, and the general approach to an unintentional harm is that
one is liable only if the plaintiff can show that the defendants were negligent. ____ will try to show that _____
was/were negligent, and that his/her/their faulty conduct caused his injury. Negligence law requires one to act as a
“reasonable person” and is the failure to exercise “ordinary care” in the circumstances.”
Negligence
Definition/Elements of Negligence – breach of duty of reasonable care
1. Duty – did ∆ owe the π a duty to conform his conduct to a standard necessary to avoid an unreasonable
risk of harm to another?
a. DEFAULT RULE: Negative duty  duty to exercise reasonable care not to harm someone
2. Breach – did the ∆’s conduct, whether by way of action or omission, fall below the applicable standard
of care?
a. Breached by negligence or fault
3. Causation - given duty and breach, was the ∆’s failure to the applicable standard of care causally
connected to the π’s harm?
a. Causation in Fact meet
b. Proximate Causation
4. Damages - did the π suffer harm?
π has the burden of proof and must meet all 4 of these requirements in order to establish a prima facie case and get the
case to a jury
Negligence Policy Aims and Rationales:
1. Fairness - shouldn’t be liable if you can’t make a choice between a safe or dangerous choice  not liable
unless you are at fault
a. Hammontree v. Jenner - ∆ driving when had epileptic seizure with no warning and crashed into π’s
car  not fair to hold liable when ∆ had no warning
b. You are not liable unless you do an act
2. Social Utility/Welfare
Not very many rules telling what is negligent and what is not, it is either decided by 1) a jury through jury instructions
and evidence (allowed by a judge) or 2) a judge through a directed verdict
DUTY/ BREACH
The Reasonable Person (Objective Test)  negligence test external to the actor
1. Default Rule: You have to have acted with care in a way such that an “average prudent/reasonable”
person would have acted
a. Negligence applied to both the ∆ & π
i. ∆ is only liable if he could foresee that one course of action would be riskier than another –
foreseeability is key because if the consequence is not foreseeable it is as if the ∆ did not
act at all
1. Holmes: “a choice which entailed a concealed consequence is as to that consequence
no choice”
b. Vaughan v. Menlove – fire started on a haystack that spread to π’s property and destroyed his
cottages  a reasonable man would have known that storing hay in such a manner was a fire hazard
2. Exceptions/Special Instructions: objective test does not take into account people’s differences in
intelligence, ability, etc.
a. Beginners and Experts
i. Beginners – not held to a special instruction
1. Person at beginner level operating farming equipment and hurts someone = no special
instruction
2. Kid learning to drive injures a neighbor, who is teaching him to drive = no special
instruction
ii. Experts: professional/licensed to do the job like doctors and lawyer
1. Instruction given that professionals are “required to exercise the skill and knowledge
normally possessed by members of that profession or trade in good standing in similar
communities, unless he represents that he has a greater skill or less skill” (RST)
2. A person who simply has a greater skill (like semi-truck driver) is held to a superior
knowledge rule and the professional trade principle
b. Children and Adults
i. Adults: Old age (infirmities and physical limitations) is not a special instruction to be held to
a lower standard because you know that your old age impairs your facilities and should take
extra precaution
1. Roberts v. Ring – 77-year-old man with poor sight and hearing strikes 7-year-old boy
with his buggy = liable
ii. Children:
1. If you are minor engaged in adult like activities, you do not get special instruction
(Daniels v. Evans – 19-year-old motorcyclist crashed and held to a same standard as
adults)
2. If you are a minor or child engaged in child-like activities, you get special instruction
of the objective test of your conduct measured by the standard commensurate
with your age, intelligence and experience
3. Children need exposure to adult environments in order to develop to be able to be held
to the correct standard
a. Child under 5 cannot be negligent but can be held liable for an intentional tort
 (Garret v. Dailey – can intend the touching but cannot be negligent
because they don’t understand the world enough to have a reasonable
perception or appreciation)
4. Analogies to help determine if child-like or adult activity:
a. Driving golf cart on private property = not an adult activity
b. Driving a motorboat = adult activity
c. Hunting deer with a gun in Arkansas = not an adult activity  firearms are
not held to the adult standard of care (one standard of care)
i. RST 3d holds handling a firearm is best regarded as a dangerous adult
activity but most courts refuse to apply an adult standard of care when
a juvenile injures another with a firearm
d. Operating a tractor-propelled talk cutter = adult like activity
c. People with Physical Disabilities
i. Black Letter Rule: the person under disability is obliged to use the care which a
reasonable person under the same or similar disability would exercise under the
circumstance
1. Fletcher v. City of Aberdeen – Blind π who fell in a manhole was exercising
reasonable standard of care for a blind person, so the city was liable
ii. Public places (like cities) are obliged to afford the degree of protection which would bring the
notice of the person so afflicted, with a disability, that the danger could be encountered
d. People with Mental Illness (insanity, sudden physical incapacitation etc.)
i. For insanity to be a defense to negligence, ∆ must show:
1. Absence of notice or forewarning to that person will suddenly be subject to insanity or
delusion
2. Insanity affects the person’s ability to understand the applicable duty of care OR
3. Insanity affects the person’s ability to conform to the reasonable person standard of
care
ii. If there is no notice of the insanity or mental delusion then there is a complete defense but if
there is notice from prior hallucinations or events, then there is no complete defense
1. Most people have some type of notice – sudden onset of insanity is very rare
2. Bruenig v. American Family Insurance Co. – woman driving car has insane
hallucination and crashes into π’s car – liable because had notice of the
hallucinations
a. For intentional torts, insane person can intend the touching even if under a
delusion or hallucination but cannot be negligent
iii. Most courts won’t give an insane person a complete defense when he is a ∆
1. Courts give insane π a shield against negligence being a defense and give special
instructions for mentally disabled
iv. Tort brought by caregiver can lose because they have taken on an assumption of risk  can
even be liable if they are not doing their job right supervising to make sure the mentally ill
person is not doing any harm to anyone or anything
v. Policy args.
1. where 1 of 2 innocent persons must bear a loss, it should be the one who occasioned it
2. induce people interested in the estate of the insane person to control and restrain
3. opens the doors to false insanity claims
e. People with Mental Disabilities
i. Analogous to a person of a physical disability but best analogous to a child
1. Mentally disabled people don’t know when they need to do something different just
like a child usually doesn’t know because they cannot perceive the act differently
ii. Person doesn’t get special instruction when ∆
1. Administration problem: hard to prove just how mentally disabled someone is
f. General test for professionals: required to exercise the skill and knowledge normally possessed by a
member of that profession or trade
Calculus of Risk: The Hand Formula
1. If the probability of loss is greater than the burden of taking precaution to avoid it, then the ∆ is liable B < PL
(burden > probability * cost of injury)
a. United States v. Carroll Towing Co. barge owner liable for the value of the gov’ts flour that was lost
when a barge floated away because the bargee was absent  reasonable precaution to have the
bargee aboard at all that costs less than the value of the loss and the probability that it will occur
2. Policy Arguments:
a. Fairness: if risk is unforeseeable, or there are two choices with the same amount of risk, not making a
“choice” to be negligent and cannot be held liable
b. Utility: If costs to avoid the possible loss are greater than the loss and the probability that it occurs,
then society as a whole is poorer if you take the precaution
i. Maximize resources by avoiding those accidents where the costs of avoiding them are greater
than the costs of preventing them  want the benefits of avoiding to be greater than the cost
of avoiding
c. RST 3d §3: Negligence – a person acts negligently if the person does not exercise reasonable care
under all the circumstances – primary factors to consider ascertaining whether conduct lacks
reasonable care:
i. Foreseeable likelihood person’s conduct will result in harm
ii. Foreseeable severity of any harm that may ensue
iii. Burden of precautions to eliminate or reduce risk of harm
d. Most juries not instructed by BPL – most are instructed under the “reasonable person/ordinary care”
fairness standard
Custom: the unbending test of negligence
1. RST §13: General Rule
a. Actors compliance with the custom of the community, of the others in like circumstances, is evidence
that the actor’s conduct is not negligent, but does not preclude a finding of negligence
b. [Departure from the custom of the community or others in like circumstances can increase risk of
evidence and can find the actors negligent, but does not require that finding]
2. Reasonable care is determined by the usages, habits and ordinary risk of the community (Titus v. Bradford –
RR brakeman falls off car because car did not fit properly and the wood and telegraph wire precautions
usually practiced failed; no liability – some AoR
3. Despite no statutory provision, when a precaution is almost universally used in an industry, it can be said to be
a customary safety precaution, so deviating from it is a departure from reasonable care
a. In specialized areas/professional negligence, custom becomes more central because jury is incapable
of making informed weighing of burdens of probability of injury
4. Custom is admissible evidence that can be taken into account by a jury because it reflects the
judgement, experience, and conduct of many, but refused to give custom conclusive weight
a. TJ Hooper – not having radio on a boat, the custom of the industry to have one = owner liable (came
to same conclusion through cost benefit)
5. Three approaches:
a. Custom as evidence (TJ Hooper)  current rule!
i. If there is feasibility / you know what people generally do then there is support for allowing
custom in as evidence
b. Custom as Unbending Test (Titus v. Bradshaw – π killed when broad-gauge car wobbled on a narrowgauge truck – court said job was inherently dangerious and that there should not have been a higher
standard of care)  old/more unfollowed standards
i. Policy arg. – adopting the unbending approach disincentives innovation in the safety of others
ii. Utilitarian arg. – would lead us to cost-benefit approach
c. Don’t let custom in at all (Mayhew v. Sullivan – mining ladder-hole incident causing the π to fall down
the hole when there was no railing – court said custom didn’t matter because it was so bad they
couldn’t help but find negligence)
6. Contractual Relationships  TJ Hooper – barge owner had the contract with the owners) – parties are likely
aware of the customs and can set their own standards of care in the K
a. Custom should govern here as evidence of what they agreed to
7. If human injury/death is at stake, the custom will not govern
8. Private Customs  no general rule, can argue either
a. Argument for allowing π to use ∆’s established rules that govern conduct of employees as
evidence of negligence
i. π may have relied on ∆’s private rules
ii. π probably didn’t rely on this rule if he didn’t know about it
b. Argument for not allowing π to use ∆’s established rules
i. Perverse incentive – the more cautious and careful the ∆ is in adopting private rules, the worse
off he is
ii. In ∆’s interest not to adopt any rules at all
iii. Discourages rules that should be encouraged
Custom in Medical Malpractice  custom is the test of negligence in MM (exception to RST§13)
1. Legal standard for MM is the relevant reasonable care of the profession
a. Expert testimony to help persuade the judge (replace the jury to tell them what the test is because the
jury doesn’t have enough information to determine it)
b. If there is a battle of the experts, the jury gets to decide which one is more credible if the experts for
each side say different things
i. Exception to this exception: if the doctor does something that is so wrong (i.e. operate on the
wrong leg or leave a medical tool inside someone) then there is no expert testimony needed
nor is a standard of profession necessary to determine negligence
2. To establish a prima facie case of medical malpractice π must demonstrate:
a. The basic norms of knowledge and medical care applicable to general practitioners or specialists
b. Proof the medical personnel failed to follow these basic norms in the treatment of the patient
c. A causal relationship between the act or omission of the physician and the injury suffered by the
patient
d. Lama v. Borras – Dr. failed to administer a conservative treatment that might have made the
operation unnecessary and the hospital staff failed to follow charting regulations that might have
discovered the infection arising from surgery sooner – liable
3. For π to win: ∆ didn’t follow professional standards (custom) OR ∆ didn’t perform procedure properly; For ∆
to win: he used custom properly
4. “Considerable Number” Rule – most courts use this
a. There are often multiple customs (more than one standard treatment or schools of thought)
i. Two Schools of Thought Doctrine – is an absolute defense to malpractice if a considerable
number of recognized and respected physicians advocate for a treatment among alternative
recognized treatments
i. Cannot be fringe minority of doctors who advocate for the treatment
a. Quantitative Test: how many doctors follow it (Majority Test)
b. Qualitative Test: how respected are the doctors who advocate the treatment
5. Murray v. UNMC – delayed administration of drug pending insurance approval and patient died – doctor met
the medical standard of waiting to start the treatment before the insurance approval because the doctor still
has the patient’s well-being as his priority even though it seemed like the money was his priority
a. starting and stopping treatment would have been worse for the patient
6. The Locality Rule: distinguishes between doctors in small towns and big doctors in big towns because of a
difference in access to resources, etc. but courts have abandoned this rule nowadays because it doesn’t really
apply
a. Use National standard now where doctors are expected to keep up and if they don’t have the
resources or access to them, they have a responsibility to send the patient somewhere that has them
unless it’s an emergency and needs operating immediately but mention LR anyway
7. Types of Malpractice: picked the wrong treatment, picked the right treatment but carried it our negligently, or
failed to get informed consent
Medical Malpractice – Informed Consent  *talk about BOTH Canterbury and Bly approach then choose
better one
1. Informed consent is an objective test – not what patient actually understood, but what a reasonable doctor
should have conveyed to a reasonable patient
2. A physician must disclose to the patient any material risk that a patient would likely attach significance to
in deciding whether or not to forego a proposed treatment (Minority rule: Canterbury v. Spence – Dr. did
not inform patient of a 1% chance of paralysis from procedure – π was paralyzed from operation)
a. Must be a causal relationship between the failure to disclose and the harm to the patient
b. Must be material risk (relevant)  unnecessary to disclose things that are remote and common
knowledge
c. Information to give patient:
i. Risk of alternative treatment
ii. Alternative treatments and their risks
iii. Risks of non-treatment
d. Policy – PERSONAL AUTONOMY!! – true consent is informed exercise of a choice about their
own body
e. Exceptions to Canterbury:
i. Emergency Rule: Patient is unconscious and it is an emergency
ii. Dr. withholds information for medical reasons
1. It would do more harm than good to tell the π about risk – patient so emotionally
unstable
2. Does not apply if the Dr. thinks the π will make a bad choice
3. Only applies if there is a “sound medical judgement” that disclosure if a threat to π’s
well-being
3. Amount of disclosure:
a. You have to give info on particular risks when they are a big enough concern that a reasonable patient
would need to know about – use the reasonable patient standard (what this patient needs to know)
i. Valles v. Albert Einstein – no duty to tell about risk of alternatives (placement of the catheter)
because that is too particular and too much detail
ii. Felton v. Lovett – would want to tell about stroke being a possible risk of neck adjustments
iii. Wells says: if there is a big difference in the risk between methods, the doctor must
disclose
b. Common Knowledge Rule: if the risk is common knowledge, it does not have to be disclosed (i.e.
risk of infection)
c. Doctor’s Knowledge: doctor must disclose even the smallest risk to the patient if there is any
knowledge of the patient’s needs, even if they would normally not disclose that risk to the ordinary
patient
i. Hypo: patient is doctor that uses his hand for a living, another doctor would have to disclose
the small risk that he could lose sense in his hand because he has the knowledge that the
doctor needs the use of his hands for his profession
d. Patients understanding: doctor’s duty is discharged when he makes a reasonable effort to convey the
sufficient information, it doesn’t matter if the patient doesn’t understand it
4. Majority: Bly v. Rhoads
a. Expert testimony required to show whether and to what extent information should be disclosed by
the doctor  no additional burden to π, since the π will probably already have expert to establish
negligence for normal MM claim
b. Policy: risk of damaging doctor-patient relationship if need to inform of remote risks and would lead
to more malpractice law suits
5. Even if you lose on informed consent, there is always still a medical malpractice claim
Statutory Negligence (Negligence Per Se) i.e. as a matter of law
1. Concerned when a statute is silent as to whether it can be used in a tort case to establish negligence
2. 3 ways that courts treat statutes:
a. Statute violation is irrelevant
b. Other party can introduce the statutory violation as evidence but the jury can give it weight they want
to give it
c. Rule is presumptively that if there is a violation it will establish negligence as a matter of law (there
can be excuses in certain circumstances though)
3. General Rule of 2nd and 3rd Restatements: an actor is negligent if, without excuse, the actor violates a
statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident
victim is within the class the statute is designed to protect
4. Statutory Purpose Rule MAJORITY: when a statute or municipal ordinance imposes upon any person a
specific duty for the protection or benefits of others, if he is negligent to perform that duty he is liable to those
for whose protection or benefit it was imposed, for any injuries to the character of which the statute or
ordinance was designed to prevent, and which were proximately caused by such negligence (Osborne v.
McMaster – sells unlabeled poison which is in violation of a statute to have it labeled – woman takes it and
dies)
a. If a person neglects to perform a duty imposed by statute or common law that is designed to
protect a certain class of others, evidence of act or omission is negligence per se
b. Gorris v. Scott – π shipped sheep and ∆ failed to keep them penned up as required by statute to
prevent spread of contagious animal disease. During a storm, the animals washed overboard. Statute
not meant to prevent animals from going overboard, so violation of statute did not create negligence
per se
i. Could win a tort case by other means – that a ship owner could have taken more precautions
ii. For Exam: think of other tort claims people gave even if they don’t have a statutory
action or another one that was specifically asked about
5. Criticism of the Statutory Purpose Rule:
a. Posner (minority rule) – there should be no SPR
b. Owner was under statutory duty to pen sheep, why should he not be liable for disaster that could have
been prevented has he complied with statute?
6. Why have negligence per se:
a. To enforce the statute through tort liability (try to enforce legislative intent)
b. Another argument Well’s likes: use the statute because the legislature is the authoritative
representative of the community as to what is or what isn’t negligent – makes the judgment as to
what is or isn’t reasonable
7. Statutory Violation as Evidence of Negligence:
8.
9.
10.
11.
12.
a. Licensing: a licensing statute cannot use negligence per se period but it can be evidence if you have
other evidence showing the negligence to go along with it (can’t introduce as evidence unless it
violates the safety of something the license requires)
b. Statute passed after the accident took place
c. Regulation made by administrators would make the violation only evidence of negligence for a
jury
Violation of Complex Administrative Scheme:
a. Some government in between the statute and the person who is injured  tendency to find when the
legislature enactment (statute) is part of a complex administration scheme to reject negligence per se
i. Uhr v. East Greenbush Central School District – the violation of a statute requiring scoliosis
tests for students was not evidence of negligence because it was the intent of the legislature for
the Commissioner of Education to establish the regulations – this suggested no private right of
action
How to determine to scope of the Statutory Purpose (no general rule, argue either)
a. Broad Interpretation: Stimpson v. Wellington Service Co. – ∆ drove over city streets without permit,
its weight busted pipes causing flooding in buildings – court found statute had dual purpose of
protecting street and other property in the city
b. Narrow Interpretation: ∆ fell on top of flatbed truck but ∆ won b/c statutes “first priority” was to
protect miners and not delivery me – π was not a member of the class statute was passed to protect
Negligence per se and π’s: Martin v. Herzog – π was negligent per se when he drove his buggy without lights
causing the accident with ∆
Negligence per se and causation: even if an actor violates a statute, he is not negligent unless the violation
causes the harm
a. Negligence shouldn’t count unless it makes a difference
b. Martin v. Herzog HYPO: π drove without lights in violation of statute, but ∆ veered into the π because
∆ was looking at his phone – π’s lack of lights did not contribute to the accident
Violation of local ordinances: most courts treat ordinances and state statutes the same – majority rule in the
RST but some courts distinguish the two
a. Elliot v. City of NY – π fell out of a bleacher that had no rail in violation of a city ordinance – court
ruled that the ∆ was not negligent per se, but the π could introduce the ordinance as evidence of
negligence
Excuses for Negligence Per Se:
1. Violating statute is safer than complying with it (Tedla v. Ellman – statute required pedestrians to walk
against traffic, but taking in conditions of the amount of traffic and the road conditions it was safer for π to
walk with traffic
a. Hypo: speed limit is there for safety purposes but someone violates the speed limit because a
passenger needed immediate medical attention and ends up hurting a pedestrian – sufficient
justification
2. The reason for incapacity: child not held to negligence per se if doing a childlike activity – child commits
statutory violation by darting into the street playing a game – no negligence per se
3. If violation is reasonable in actor’s incapacity, physical disability or emergency – someone gets brakes
checked, but then they fail, there is no breach of the statute RST §15(b)
Res Ipsa Loquitor – “the thing (accident) speaks for itself”
1. The π has to prove the ∆’s negligence and ∆’s causation of harm in order to win
a. Evidence of ∆’s negligence to get the case to jury
i. π gets the chance for the jury to find for him with the doctrine
2. For RIL to apply:
a. Accident is one that ordinarily doesn’t occur without negligence AND
i. Most courts intuit whether this is satisfied – “ordinarily does not happen in the absence of
negligence”
ii. Benedict v. Eppley Hotel – π took ∂’s hotel’s chari and sat in it
b. Instrument that brought about harm has to be the cause at the relevant time AND
i. As long as the π has not misused it
ii. Larson v. St. Francis Hotel - ∆ had no exclusive control of the chair, sudden celebration
could not have had control
iii. Compared to Connelly v. Nicollet Hotel – going on for a couple of days = more
control/ample notice of the drinking and partying so had a chance to do something about it
because it was not sudden
c. Not solely due to voluntary act or omission of the π
d. RIL Ex. Byrne v. Boadle – (flour barrel fell on π) – barrels do not ordinarily just roll out so a jury can
infer negligence
3. RIL in Medical Malpractice
a. Sometimes π can win without expert testimony by using RIL
i. There must be common knowledge exception such as
1. Foreign substance unintentionally left in a body
2. Explosion or fire originating in substance used in treatment
3. Unintended burn cause by heat, radiation, or chemicals in the course of medical care
4. Injury was suffered during the course of treatment to a part of the body not directly
involved in the treatment
a. Ybarra – π suffered shoulder/neck injury in surgery appendicitis
5. Surgical procedure performed on the wrong patient or wrong part of the body
4. RIL with multiple Defendants – must hold someone liable
a. Everyone who could possibly be responsible in the case must be a ∆ in order to have RIL – Chin v.
St. Barnards
b. Anderson v. Somberg – exception in that the court allowed the π to win even though the responsible
party may not be a ∆ in the suit
5. ON EXAM: spend most of the time talking about the facts as ways to establish negligence first then at
the end of the essay, mention RIL and how the π could fall back on to that possibly to win as a last
resort
DEFENSES TO NEGLIGENCE (PLAINTIFF’S FAULT)
Contributory Negligence:
1. The conduct on the part of the π which falls below the standard to which he should conform for his own
protection, & which is a legally contributing cause cooperating with the negligence of the defendant in
bringing about the π’s harm
a. Gyerman v. U.S. Lines Co. – ∆ improperly stacked fish meal sacks and the π was injured when a sack
fell on him. Since the π failed to notify his own supervisor (π was negligent), but there was no defense
on contributory negligence because ∆ did not show π’s negligence was the proximate cause of the
injury – court ruled the injury might have happened even if π has not been negligent in stacking
2. Burden of Proof
a. ∆ has burden of proof to prove the π’s contributory negligence
b. Absolute defense if π is negligent at all, then ∆ is not liable
c. Partial defense if π is negligent to a certain degree
3. Contributory negligence and necessity:
a. There is no contributory negligence if π’s normally negligent act was caused by an emergency
i. Ex. Raimondo v. Harding – π darted into the road to escape attackers and was hit by a car,
emergency excused what would have been contributory negligence
1. π cannot rely on emergency created by his prior negligence
a. if Raimando had been escaping because he stole property = no defense
b. π does not have to pay for damage caused by a private necessity  different than Vincent v. Eerie
Lake
c. Rationale:
i. Fairness – if it’s fair for ∆ to be liable when he is at fault, then it’s fair for the π to not be able
to recover when he is negligent (π could have made a safer choice)
ii. Incentive – if we want a precaution taken with the hand formula, π might have the cheapest
precaution (not allowing π recovery when he is negligent provides an incentive to take
precaution
d. People in Custodial Care
i. There is no defense of contributory negligence if the π is in custodial care
1. Fairness: if person is addict, they are not capable of making a choice
2. Incentive: addicts won’t respond to incentives
ii. Padula v. State – π’s were inmates at rehab center and π’s mixed dangerous alcohol with
Tang and were injured = no defense of contributory negligence
e. Property Rights: the rights of a person and his property cannot be subject to the wrongs of another
(doctrine is out of place when π did nothing but lawfully use his property)
i. Fairness: rights of a man in use of his property cannot be limited by wrongs of another –
party has autonomy over property !!
1. Leroy Fibre – π had hay stakced on his own land and ∆’s negligently drove his train
so that the sparks caught the hay on fire = no contributory negligence because was on
his own property
ii. Incentive: the party who has the cheapest precaution should take it, avoid the more serious
harm
1. Kansas Pacific v. Brady – contributory neg. even when π’s hay was a mile away from
the RR because he had the cheapest precaution
f. Seat Belt Defense: generally, failure to buckle up is not negligence per se
i. Incentive: burden of wearing a seatbelt is less than PL
1. Ex. Spier v. Barker – there is seat belt defense, but it’s only a basis for reducing
liability to extent of injury that would have occurred had π been wearing a seat belt
ii. Fairness: π has autonomy in his own car
1. π not required to account for another’s negligence
2. Criticism: when π leaves his property, and is on the road, he forfeits some rights
g. Imputed Contributory Negligence: barely exists today
i. Only exists where there is vicarious liability
1. Ex. Al is rich who employs Bob as his chauffeur - Al is vicariously liable for Bob's
torts
a. Bob has an accident with Carl and Al is in the car - Bob and Carl are both
negligent
i. Courts say that Bob's negligence is imputed to Al
1. Al is vicariously liable because Bob's negligence was
imputed to him (employer-employee)
Last Clear Chance Doctrine (Transitioning to Comparative Negligence) – exception to defense of π’s contributory
negligence
1. LCC is an absolute defense for π  if the ∆ falls under LCC, π will recover
a. RST 3d completely got rid of LCCD
2. RST §479: Helpless Plaintiff
a. π who has negligently subjected himself to a risk of harm for the ∆’s subsequent negligence may
recover for harm caused thereby if, immediately preceding the harm:
ii. The π is unable to avoid by the exercise of reasonable vigilance and care AND the ∆ negligent
in failing to utilize with reasonable care and competence his then existing opportunity to avoid
the harm when he:
1. Knows of the π’s situation and realizes or has reason to realize the peril involved in it,
OR
2. Would discover the situation and thus have reason to realize the peril, if he were to
exercise the vigilance which it is then his duty to the π to exercise
b. Hypos: Al is a truck driver, Bob gets drunk and negligently falls asleep in the middle of the road. Bob
= helpless π
i. Al comes along driving safely and sees Bob and thinks he can avoid him but swerving and not
slowing down but he ends up hitting Bob – Bob sues for negligence
1. Al had the LCC but did not do all that he could to avoid Bob (could have slowed
down) so liable
ii. Al driving too fast so by the time he could reasonably believe that Bob was in the road, there
was nothing he could do
1. Bob could not recover on LLC because there was no opportunity because he could
not do anything
iii. Al had also been drunk but was going the speed limit – drinking makes it so Al can’t properly
steer or brake even though he was driving slow enough he could have taken the necessary
steps to slow down and he could have avoided being drunk
1. Bob could recover under the LCC because Al’s negligence is not him drinking and
driving but it’s that at the time, he did not respond properly
3. RST §480: Inattentive Plaintiff
a. A π who, by the exercise of reasonable vigilance, could discover the danger created by ∆’s negligence
i. Knows of the π’s situation AND
ii. Realizes or has reason to realize that the π is inattentive and therefore unlikely to discover his
peril in time to avoid the harm, AND
iii. Thereafter is negligent failing to utilize with reasonable care and competence his then existing
opportunity to avoid the harm
b. Hypos: Bob is a law student crossing the street while texting – Al is a truck driver that tries to swerve
to avoid Bob anyway
i. Both are negligent – Al has LCC because Bob is attentive and ∆ has the LCC if he sees and
knows he is inattentive
ii. Add a fact: Bob gets upset because of a text and just stands there in the middle of the road,
looking around and sees Al coming and is staring right at him
1. Al thinks Bob is going to move because he sees him but Al doesn’t realize that Bob is
inattentive  could come out either way depending on the circumstances
iii. Al was texting inattentively while driving so they both don’t see each other and they are both
negligent
1. No LLC because Al didn’t know that Bob was there  π loses if both are inattentive
– LCC does not ever apply here
4. When π has the LCC, then ∆ would not be liable (π should be incentivized to take the LCC to avoid harm)
5. Rationale:
a. Incentive: gives ∆ incentive to take safety measure
b. Fairness: weak argument
Assumption of Risk: decision to assume the risk can be reasonable and unreasonable (independent defense from
contributory negligence)
1. To assert a defense of AoR, a ∆ must prove a π made a:
i. Voluntary
1. If ∆ illegally limits π’s choice, there is no voluntariness
a. Marshall v. Ranne - ∆’s boar attacked π when he left his house – π could either be
attacked or be prisoner in his home, there was no voluntariness
2. Economic necessity: π’s acts are still voluntary even if it was motivated by economic
necessity
a. ADM+: Delivery person and owner of a business is there and delivery person
says, “I don’t want to deal with the slippery sidewalk” and the owner says, “if
you don’t bring it to me I will tell your employer and you will get fired so you
need to bring me a package anyway and you can’t sue me if you fall”
i. Knowing argument = yes
ii. Voluntary = not sure
b. Marshall+: ∆ has 3 boars (against the law) and the ∆ goes to the π and says, “I’ll
put 2 boars in the pin if you let 1 of them run around loose.” π that is illegal, but
okay, 1 is better than 3 running loose” and π signs the agreement
i. Different than ADM hypo because ∆ has no right to keep boars. In
ADM, the owner has a right to keep the sidewalk slippery. Illegal
imposition of constraint on π in Marshall so no AoR (similar to Godfather
– illegal condition)
ii. Knowing
1. Maddox v. City of NY – Yankees outfielder has general knowledge the outfield was muddy,
even if he didn’t know particular risk of wet spot – professionals have a different standard
of knowledge than normal people
2. Some courts refuse to allow summary judgment based on π’s general knowledge  jury
must find particularized knowledge
3. Paternalism/ social cost theory
b.
c.
d.
e.
f.
g.
iii. Agreement that some lesser duty than ordinary care is owed to π
1. Some courts require that the agreement be written, some say an oral agreement is enough
and some that that it can be implicit
2. AoR is murky (MENTION THIS ON EXAM)  there is no clear answer so discuss
reasons for deciding one way or another
3. Murphy v. Steeplechase Amusement – AoR defense was valid because 1) π voluntarily got
on the Flopper, 2) knew the risk because he had been watching others, and 3) the
agreement was implicit
If there is a valid defense of AoR, the π loses even if he acts reasonably, it doesn’t matter because he
voluntarily, knowingly agreed that ordinary care was not owed to him
AoR in Employment Context: can mention one might argue AoR defense but in employment context,
would go through workers comp  (some workers like independent contractors are not employees
though)
AoR in Medical Context: generally disfavored
i. Except: experimental medical treatment
1. Exculpatory clause may be valid in these cases  party is not holding itself out as willing
to perform services for anyone
Rationale for AoR:
i. Autonomy!! – π gets to make their own decisions
ii. Risk premium:
1. For: it’s in everyone’s best interest to make the risk premium deal  society’s well-being
is sum of all individual’s well-being and society is better off with AoR defense
2. Against: But possible that the costs of accident will be borne by other people
Factors for Negating Exculpatory Clause – Tunkle Factors
i. Concerns a business of a type thought suitable for public regulation, but everything is subject to
regulation
ii. Party seeking exculpation is engaged in performing a service of great importance to the
public, which is often a matter of practical necessity for some members of the public  this
is why courts generally do not enforce exculpatory clauses in MM
iii. Party holds itself out as willing to perform this service for any member of the public who seeks its
(experimental medicine ^^)
iv. Party invoking exculpation possesses a decisive advantage of bargaining strength
v. Adhesion K of exculpation – take it or leave it
1. There are cases (collective bargaining) where courts allow exculpatory clauses if adhesion
K was bargained for
vi. Asa a result of transaction, person or property of purchaser is placed under control of seller but
this is most torts
vii. Arguments for and against exculpatory clauses:
1. For: autonomy/freedom of K
2. Against: goal of keeping accidents to minimum level possible (∆ will be more careful if
they are subject to liability)
viii. Exculpatory clauses that deny recovery for gross negligence or recklessness will not be enforced
Distinguishing AoR from Comparative Negligence:
i. Hypo: π sees ∆ is speeding and will not stop, π crossed the intersection anyway and is hit, there is
no AoR because there was no agreement, so just contributory negligence
ii. Meistrich - ∆ negligent in making ice rink ice and π knew it was bad but kept skating (negligent) =
no AoR because there was no agreement
1. But if the ∆ told every customer the ice was bad and makes them agree to that ∆ owes
them no duty before ticket sale but then AoR because ticket = agreement
Comparative Negligence
1. FORMS:
a. PURE form – GRIBBON FOLLOWS THIS – keeps the lottery aspect out of contributory
negligence
iii. Liability is always assigned in proportion to fault
iv. 100% of fault is apportioned between the parties (if party is at 1% fault he is liable for 1%
damages)
v. if π is 60% at fault, he can only recover 40% of his damages
vi. Argument for pure form: unfair that π can recover if he is 49% at fault but not 50% or 51%
h. Modified form – most states adopted this form
i. Equal or less than: π recovers in proportion to his liability if his fault is equal or less than ∆’s
(if it is more, gets nothing)
ii. Less than – π recovers in proportion to his liability if his fault is less than the ∆’s (if at 50%,
no recovery)
iii. Argument for: if π has enough fault, he shouldn’t get anything
2. Arguments for Comparative Negligence:
a. Fairness: the extent of fault should govern the extent of liability – it is not fair that π gets nothing when
both the π and ∆ are at fault
b. Incentive: under comparative negligence, there is no incentive for ∆ to avoid harm if the π was liable
at all
3. Arguments against Comparative Negligence:
a. It is complex and impossible to meet out exact justice (public policy)
4. Comparative Negligence and LCC
a. Under a system of CN, there is no LCC
b. Most courts have abandoned LCC
c. GA has kept it (π or ∆ who has the LCC is liable for all the harm)
i. GRIBBON MAY HAVE IT
d. Argument for keeping LCC: person who has LCC has incentive to take precautions
5. Comparative Negligence and AoR: separate absolute defense in a comparative negligence system
a. If the π assumes risk in a primary sense, ∆ is not liable at all (if no duty is owned because of the
voluntary, knowing agreement, then ∆ does not breach any duty)
i. Knight v. Jewett (broken finger in game) – take on the ordinary risk of the game and agreed
there was no duty owed
b. Comparative negligence is not a bar to π’s recovery, it is used determine the π’s fault
CAUSATION (“BF” & PC)
Cause in Fact
1. RST 3d §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 (“But For” test)
2. Division of Authority:
a. Minority Rule: NY Central RR v. Grimstad – judge overturned the jury decision that ∆’s negligence in
not keeping a life buoy on board was the cause in fact of π’s death because it was too speculative to
say he would have survived had the wife been able to throw it down to him (too many “ifs”)
b. Majority Rule: a case by case basis that often requires the jury to take into account hypotheticals or
counter-factual – greater jury leeway to decide cause in fact (Kirincich v. Standard Dredging Co. –
can’t be certain that drowning victim would have grabbed the buoy if it had been on board, but
reasonable men might differ – court trusts the jury more & doesn’t follow Grimstad)
3. Burden of Proof: π ordinarily has the burden of proof to show there is a duty, breach of duty, causation,
and damages by a preponderance of the evidence but there can be exceptions:
a. Burden can be shifted to ∆
i. If lack of proof is due to the ∆’s statutory violation
1. If ∆ does not show that violation did not cause the harm, then the violation was a
factual cause
b. Haft v. Lone Palm Hotel – statute requiring lifeguard at pool or sign saying there was no lifeguard –
πs drowned in ∆’s pool - court made an exception because one of the reasons to have a lifeguard is to
witness causation
i. Burden of proof on causation shifts to the ∆’s to absolve if they can because ∆’s lack of proof
of causation so to make π show causation would give the ∆ an advantage
4. Cardozo/Traynor Rule (When Negligence Causes Incremental Increase in Chance of Harm)
a. 1) if a negligent act was deemed wrongful because it increased the chance that a particular accident
would occur, and 2) a mishap of that sort occurred, sufficient to support that the negligent behavior
caused the harm (Zuchowiz v. US – gov’t pharmacy provided overdose amount on the drug and the π
died from one of the known side effects but they must prove that the drug caused the death and that the
negligently administered amount increased the risk of that harm)
b. In other words: if you can show the act is negligent because of its tendency to cause a certain
mishap & the mishap happens then π can get his case to a jury
i. Sanchez v. Hillarich & Bradsby – π was a pitcher that could get his case to the jury because
1) negligence in the bat design tends to cause a line drive to which the pitcher can’t read,
AND 2) pitcher was hit because he did not have time to react
1. Rationale: fairness because π has done all he can do by showing negligence, showing
that negligence often produces the harm and shows the harm
5. Rationale for Cause in Fact:
a. Fairness: not fair to hold ∆ liable when he is not the cause of the harm of if the harm would have
happened anyway
b. Incentive: if negligence doesn’t cause any harm, there is no economic reason to intervene
6. Exceptions to the “But For” Test: exceptions to §26
a. RST 3d §27: Multiple Acts (sufficient causes)
i. If multiple acts occur that cause the harm, but neither meet the “but for” test, each act is
regarded as a factual cause of the harm if they occur at the same time (sufficient cause
doctrine)
1. Kingston – there were 2 fires, one from ∆ and one from unknown, either of which
could have accomplished the damage to π’s land  court held ∆ liable (test not met
because the other fire would have happened anyway and would have destroyed the π’s
property alone
a. If the unknown fire burned π’s property and ∆’s fire came along 5 minutes
later, then ∆ is not liable because they didn’t occur at the same time
2. If Kingston case comes up in GRIBBON (where only have several liability) then the
∆’s lawyer would probably make the argument that ∆ is a joint tortfeasor but in
Gribbon, just have several liability & the RST says nothing about joint tortfeasors
making joint & several liability doctrine pointless
a. ∆ would be liable here, but could argue in fairness that he should only pay a
share because the state only has several liability
b. RST 3d §28: Alternative Liability (indeterminate causes)
i. Summers Rule: if people are acting in concert, each is liable for what the other does
1. Summers v. Tice – 2 ∆’s in concert negligently shot at a quail in direction of π and π
got hit by 2 pellets and got injured but not sure which ∆ negligently hit him but at
least one is the cause
2. Even if the ∆’s are not acting in concert, we will hold them liable because we will
shift the burden of proof to them to absolve themselves  no prerequisite that
the ∆’s need to know more than the π
a. One shot then 5 minutes later another shot, then find π injured 1 hour later 
both still held liable (does not have to be at the same time)
b. Can apply comparative negligence – π’s percentage of fault would reduce his
recovery
ii. This RST section only applies when you have all ∆s available to sue (all potentially liable
parties must be able to be sued)
1. When it’s impossible that both ∆’s are negligent then the principle does not apply
(π driving car and brakes fail and he has an accident – Al and Bob both have brake
companies that make generic brakes but π doesn’t know which one provided his faulty
ones and it’s only possible that one of them made the defective one so impossible they
are both negligent
iii. Arguments for AL in GRIBBON:
1. Fairness: negligent ∆s should bear the burden instead of innocent π (∆s should bear
cost of injury)
iv. Arguments against AL in GRIBBON:
1. Summers applied in a system of joint liability, applying to joint tortfeasors  there
are no joint tortfeasors in Gribbon
c. Market Share Liability (no RST section, but in the comments)
i. Holding a group of ∆’s liable according to their market share when π cannot determine
which ∆ caused the harm
1. Rarely applied outside the DES context (some blood products, too)
a. Sindell v. Abbott Laboratories – π injured by DES drug that her mother took
while she was pregnant with her and caused birth defects  court creates a
market share liability to justify recover y where π cannot satisfy the “but for”
test
2. Used when alternative liability won’t work because there are too many possible
tortfeasors
ii. Requirements for MSL – Need to have a case where:
1. All the named ∆s are potential tortfeasors – don’t need them all to be ∆s, just need
them all to be potential tortfeasors (difference from Summers)
2. All of the products need to be fungible (mutually interchangeable – all generic)
3. Π’s harm has to be traced back to the product specifically
4. Π cannot trace their harm to any specific manufacturer
5. “substantial” share of the market needs to be represented by the manufacturers
– under Murphy v. ER Squibb
6. ∆’s liability depends on their share of the market – if their market share is 20%, but
only 10% for the use in the question at hand, then liability = 10%
iii. Rationale for MSL:
1. Incentive: want to give the right incentives to these generic product manufacturers
2. Fairness: ∆’s wouldn’t be liable under the “but for” test so the burden should be
borne by the negligent ∆’s, not the innocent π
iv. If ∆ can prove that he could not have caused some of the harms:
1. A has 50% of market share and there are 100 harms at $1 each  A can prove it did
not cause 50 of them
a. If we don’t allow exculpation (allowing ∆ to say he didn’t cause 50 harms,
then A is liable for $50.
b. If we allow exculpation, A is still liable for $50 because it is probably liable
for the remaining 50 harms
v. MSL outside of DES  applying risk-contribution rather than MSL
1. Assess risk based on a paint-by-paint basis (lead paint poisoning) making the jury
decide how much risk the specified lead paint contributed
vi. MSL open question in Gribbon – argue both sides!!
d. Concert of Action – didn’t talk about this one much
i. RST illustration: teenagers have a drag race and one hits the π = both liable because they acted
in concert (courts in Sindell rejected this too)
e. Loss of Chance of Survival (Increased Risk of Loss) – situations where the ∆’s negligence increases
the chance of the π’s loss
i. Cases where there is a background risk, and the ∆’s negligence increases this risk
1. In principle, could have the loss chance of survival in any situation, but in practice,
courts have not applied it
a. Almost all loss chance of survival cases are medical malpractice (some are
toxic torts – where ∆ negligence emits a substance into the environment
increasing the chance of getting the illness)
ii. Herskovits v. Group Health Center – π’s risk of death was 61% in Dec (background risk) then
∆’s negligent misdiagnosis makes it 75% chance of death in June (∆’s negligence increased
the chance of death by 14%)
1. π cannot meet “but for” test because it was only 14/75ths the ∆’s fault
2. had he been liable for 50%, then the π could have recovered 100% because would
have satisfied the “but for” test
iii. 3 Possibilities for Damages:
1. Ordinary damages for entirety of wrongful death award
2. π’s who can meet the “But-For” test get a full recovery while π’s who can only show
lost chance of survival get a partial recovery (i.e. show that probably would have
survived if no negligence to get full recovery)  leads to over deterrence of docs
3. Wells Likes: Increased Risk Doctrine – get 14/75 of a full wrongful death
recovery
iv. Arguments for Doctrine:
1. Fairness: not fair to say π never wins when the doctor is responsible for 14/75ths of
the harm but never held liable
2. Incentive: if doctor is negligent in causing 14/75ths of harm and there is no liability,
then there is no incentive
v. Arguments against:
1. Overall better avoiding these complications and just using the “but for” test
2. Medical monitoring (not a majority rule, but some courts allow for medical
monitoring expenses as a result of dangerous exposure)
a. Π been exposed to something that may cause a future injury – there is a
current cost of medical monitoring allowing the people to recover now to
avoid double recovery – no courts apply this
vi. This doctrine is not well-established in Gribbon – still up in the air
Proximate Cause  must show cause in fact AND proximate cause  RST §29, 30 & 34
1. Asks whether the ∆’s conduct should be regarded as a “substantial factor” in bringing about the π’s
harm
a. Issue: what should the scope of liability be for consequences someone negligently caused?
i. Given the duty, negligence, and cause in fact, should the unforeseeability of harm preclude the
liability? Compare Polemis and Wagon Mound
2. Two tests for Proximate Cause:
a. Minority rule: Direct Consequences test (Polemis) – if ∆’s negligent act was the direct cause of the
consequence, he is liable regardless of If the harm was reasonably foreseeable to the ∆
i. Polemis – plank fell n ship der to negligence which caused a spark causing the ship to catch
fire and destroyed it
ii. Policy: want to do what’s fair, ∆ directly caused the harm, even if it was unforeseeable. Better
for the negligent party to bear the loss
iii. Minority Rule governs in some situations like the “Thin Skull” rule – liability for
unforeseeable but direct causes
b. RST §29 MAJORITY: Reasonably Foreseeable Consequences Test (Wagon Mound) - ∆ is only
liable for reasonably foreseeable consequences, not all direct ones
i. Wagon Mound – oil under the ship caught on fire from a rag that caught fire and destroyed
the ship – oil catching fire was not a reasonably foreseeable consequence
ii. Not fair to hold the ∆ liable for all the consequences that may arise
iii. Ex. Negligently puts rat poison on a shelf next to food, reasonably foreseeable that it would
get into the food, but not reasonably foreseeable that it would randomly combust
iv. Palsgraf v. Long Island RR – only the injury to the man getting on the train was foreseeable,
not the injury to Mrs. Palsgraf that was on the platform
3. RST §30: an actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that does
not generally increase the risk of that harm
a. Barry v. Sugar – tortious risk of speeding was not the type that increases the risk that a tree would fall
on you
b. Even if Polemis governed, tree falling was a coincidence, not a consequence
4. Intervening Causes – RST §34 consistent with §29 & 30 – An actor’s liability is limited to those harms that
result from the risk that made the actor’s conduct tortious
a. Central of GA Ry Co. v. Price – RR negligently lets the π off at the wrong stop and she gets a hotel for
the night which sets on fire – RR not negligent even though “But-For” cause of the harm, because it
was not reasonably foreseeable
b. Liable for reasonably foreseeable intervening event (Hines v. Garrat – RR lets π off past her stop, must
walk back through a bad neighborhood and gets attacked – RR liable because more foreseeable)
c. The act of a 3rd person intervening and contributing a condition necessary to the injurious effect of the
original negligence, will not excuse the first wrongdoer – if such an act ought to have been foreseen
(Brower v. NY Central – RR hits wagon causing all of its contents to fall out when thieves came up
and stole them – RR had 2 guards proving that they knew the thieves were a risk and the negligence of
the RR made it impossible for the wagon driver to guard the property so RR liable
Exceptions to §29, 30 & 34:
5. RST §33 Hypo: Al hits Carl when shooting at Bob but he did not know that Carl was there – shooting Carl is
not a foreseeable direct cause but could be liable for transferred intent for intentional tort but not for
negligence
6. RST§32 – narrow exception to §29 & 30 – Rescuer Rule
a. Rescuers are allowed to recover from the original negligence as long as the rescue was with unbroken
continuity – doesn’t matter if it’s deliberate or instinctive
i. Wagner v. International RR – cousin flung off the train so the π went to rescue him and was
injured – π should recover from RR negligently packing the trestle because was injured in
rescue
7. Thin Skull Rule: “take your victim as you find him” – exception to §29
a. Even if the harm goes way beyond what’s foreseeable, you are liable anyways
b. Person with an eggshell psyche are thin skill, too
c. Steinhauser v. Hertz Corp – 14-year-old passenger in her parent’s car when it was negligently struck
by the driver of ∆’s car suffered no physical injury, but soon started suffering from nervous
schizophrenia – driver could be liable
8. RST §36 illustrated by Kingston fire case – when a small fire subsumed by the big fire, the person who
negligently caused the small fire is not liable
9. Special Rule for Enhanced Harm §35: when the original harm is a substantial factor in causing a subsequent
injury, the original harm is not too remote (Atherton v. Devine Hypo– Al negligently injures Bob in a car
accident and Bob seeks aid but gets injured later in the ambulance crash or in the hospital from medical
malpractice – can sue Al for all the later injuries and Al would be liable
10. Last Wrongdoer Doctrine – liability lies with the last wrongdoer but liable if something/ 3rd party severed the
causal connection (argue this if it’s at all possible to help)
a. Pittsburgh Reduction Co. v. Horton – negligent in having dynamite bottle caps and child gets injured
but since his parents intervened with them at home, Pittsburgh was not liable
11. Coming to Rest Principle (overarching principle)
a. At some point the situation has come to rest and the negligent ∆ can no longer be liable – when the
situation has come to rest, ∆’s liability doesn’t matter anymore
i. Marshall v. Nugent – truck driver ran car off road so passenger of car went to warn people
driving that there was a hold up and he got struck by Nugent who was driving another car 
since the situation was not at rest because the passenger’s actions was a reasonable action
from the situation so truck driver is liable
1. If the situation was over and the truck driver had gotten back on the road and then the
π got hit 5-minutes later, then the original ∆’s negligence would have been at rest and
he would not have been liable
12. Reasons for Exceptions: policy for favoring the innocent and the rescuer, protects the weak and naturally
disadvantaged and in regard to intentional torts, the scope of liability is greater than negligence
Proof of Factual Causation: the use of Expert Testimony  Used to inform the jury on what is and isn’t
careless and on causation in the technical areas/specialty areas
1. GE v. Joiner is the law (π developed lung cancer because of contact with PCB – experts tried to show
causation b/w lung cancer and PCB with studies done on animals)
a. Both sides hire experts to testify and it’s up to the jury to determine which one they believe
based on:
i. Relevance – expert testimony/studies have to be similar to the situation at hand (in Joiner, the
study on the infant mice was not close enough because of the concentration, it was on infants
and they got different cancers)
1. Always put in the best evidence to start with because you only get one shot
ii. Reliability – needs to have external validation apart from the studies having just been done for
the testimony (no research done, not in a peer review journal or not done separately from the
litigation prep are not reliable)
2. GA & GRIBBON follow Joiner and the Federal Rules of Evidence
3. General Problem of Expert Testimony – stringent approaches that generally come out the same but are
not really used anymore
a. Frye v. United States – circuit court case that provided the rule governing expert testimony for a long
time saying the reliable test was a “general acceptance of the scientific community” – scientific
community is the gatekeeper
b. Daubert v. Merrell Dow Pharmaceuticals – says judge was the gatekeeper that governed what was
reliable – more broad approach that is not used
i. Kumho Tire – expands these standards to technical as well as scientific evidence
Vicarious Liability: One form is Respondeat Superior  employer is liable for torts committed by the employee
in the course of employment
1. Elements π must prove:
a. Employee committed a tort
b. In the course of his employment
2. Strict liability: π does not need to show the employer was negligent
a. The fact that the employer forbids the activity does not matter
3. To commit a tort in the course of employment:
a. Majority rule = motive test
i. Basic rule: conduct of a servant is within the scope of employment if it is actuated, at least in
part, by a purpose to serve the master
1. If the employee is helping the employer it can be a partial motive
2. Small deviations are allowed (frolic and detour)
a. Coe – driver deviated to pick up lunch, but employer was still liable
b. Minority Rule (Judge Friendly): if the employee’s act is sufficiently foreseeable and connected so that
it is fair to hold the employer liable
i. The act is foreseeable in the work and connected to the work
1. Bushey & Sons – drunk seaman floods drydock – failing the motive test because there
was no purpose to serve the master but it is foreseeable that the sailor would get
drunk and the act was a characteristic of the job
c. Independent Contractor: employers are not liable for the torts of independent contractors
i. Even if the K says someone is an independent contractor, may still be an employee
ii. Court will consider who provides the tools and who controls the way the work gets done to
decide if IC or employ (no bright line test)
d. Negligent hiring = different than RS (Schechter v. MHD – employees’ robbery was outside the scope
of employment so no RS but the employer could be liable for negligent hiring
e. Joint Enterprise Doctrine: partner with other(s), vicariously liable for everything that happens within
the scope of the enterprise (A & B are partners – liable for each other’s torts unless in an LLP)
f. Indemnification in VL: π can recover from employer and employer can seek indemnity for full amount
from the employee
g. Intentional Torts: employer can be vicariously liable because the motive test can still apply (bouncer
commits battery in course of employment unless the motive is overly person like beating up wife’s
lover then no RS)
h. Borrowed Servant – one contractor borrows another’s employee  both employers can be held
vicariously liable for the employee’s tort
Joint and Several Liability – multiple defendants
1. Rights as between two tortfeasors:
a. Common Law Rule: Joint and several liability – most courts have modified this
b. Joint Liability = each ∆ is liable for 100% of the damages (can go after either one for the full recovery)
c. Several = each ∆ has an obligation to pay only a proportionate share to their harm caused  GA
& GRIBBON have several liability only
i. Rationale: fairness  ∆ with a small degree of fault might pay 100% of damages in J&S
which is not fair
2. Indemnity: 2 ∆’s where one is required to pay π (∆ can get 100% of recovery money from ∆)
a. Appropriate where the party has primary or greater liability or duty
b. Applies in GRIBBON
3. Contribution: 2 ∆’s where one ∆ gets a share of what one ∆ had to pay the π
a. Appropriate where is common liability among the parties
4. Four types of Indemnity:
a. One seeking indemnity is only vicarious liability from one sought to be charged
i. Al hired Bob to drive a truck, Bob gets in an accident and injures Carl – Carl recovers from Al
(the employer) and Al is able to get indemnity from Bob (the employee)
b. One seeking indemnity incurred liability by action at the direction or interest of the one to be
charged
i. Al hired Bob (employee/independent contractor) to cut down trees for him but the trees ended
up being on Carl’s property (trespass and conversion)  Carl recovers from Bob, bob can get
indemnity from Al because AL instructed him to do the job
c. Where there is an express K in products liability where the retailer typically has an indemnity
clause where manufacturers has to pay for any tort damages
d. One seeking indemnity has incurred liability because of failure to discover or prevent an issue
i. Union Stock Yard v. Chicago, Burlington, Quincy, RR – defective nut in the RR car, where
either the RR or the terminal company should have discovered the problem (failure on both
parties to not inspect and discover the issue = passive negligence)  Employee sued both and
RR pays but cannot seek indemnity from terminal co. because they were both negligent of the
same caliber
1. If change facts and RR had actively and negligently managed the cars & the terminal
co. didn’t find the problem, when the employee sues the terminal co, they can seek
indemnity from the RR
If the case falls within an indemnity fact pattern like above, then everything below here is outside indemnity and
does not apply
5. Divisible Harms: easy to divide out the harms of each ∆ and you pay only for what you did (you don’t share
at all)
a. Hypo: lake with 2 factories on it admitting 2 different pollutants into the lake that are easily
distinguishable in the lake = divisible harm (Al’s factory caused 90% of harm so he is liable for 90%
of damages, while Bob is only liable for the other 10%)
6. Indivisible Harms: hard to divide out the harm that each person did – practically or really cannot divide
a. Hypo: Al drove through a yellow light as Bob crossed 3 lanes of traffic and they collide and his Carl
(pedestrian)  cannot divide out the harm very easily since they both caused the collision
i. Carl has damages of 100k and he is entitled to 100K no matter which one it comes from and
no more (but could be less)
ii. Can sue both but only entitled to one full recovery of 100K
Negligent Infliction of Emotional Distress
1. IN GRIBBON  might have the impact rule, might not (need to know both rules and the exceptions)
a. Impact Rule (Default in most jurisdictions): recovery for ED is generally given only where one
can show injury/contact (only some jurisdictions follow this)
i. Courts are reluctant to give recovery for fear of risk getting injured later from exposure to
drugs and toxins (i.e. fear of later contracting cancer after having taken DES)
ii. Mitchell v. Rochester Ry. - ∆’s negligence caused π to end up between 2 horses, which scared
her, but there was no recovery because they did not touch her  if horse had licked her, could
have recovered
b. “Zone of Danger” Rule: if you are in the zone of danger, you can recover if you are frightened
for your own safety and also if you get ED from witnessing someone else get hurt
i. Dulieu v. White & Sons – π gave premature birth after almost being run over by the ∆’s team
of horses; premature birth was a direct and natural effect of ∆’s negligence (frightened for
own safety)
ii. Some courts expanded it to include injury to close family members if the π was also in the
ZoD and that you don’t have to be in the zone to recover from witnessing harm
2. Exceptions to the Default Rule – most jurisdictions follow RST §47: can recover for emotional damage if:
a. **∆’s conduct places π in danger of immediate bodily harm and the emotional harm results
from the danger, OR
b. Occurs in the course of specified categories of activities or relationships where negligent conduct is
especially likely to cause distress (Ex. mishandling a corpse, misdiagnosis of STD causing a marriage
to break up, mishandling telegram news of the death of a loved one)
c. Amaya Rule: can recover from emotional distress from seeing an immediate family member harmed if
π was also almost harmed
d. Dillon Rule: can recover for emotional distress for seeing an immediate family member harmed even
if “outside the zone of danger”
3. Factors and Guidelines to Limit this Rule:
a. RST §47: a) nearness & contemporaneous observation; b) closeness of relationship
b. Key thing is foreseeability case by case
4. RST §48: an actor who negligently causes serious bodily harm to a 3rd person who is subject to liability for
serious emotional harm caused thereby to a person who:
a. Perceives the event contemporaneously; and
b. Is a close family member of the person suffering the bodily harm
5. Christy Bros. Circus – horse pooped on π, π can recover for NIED
i. Dillon v. Legg – child killed by ∆walking across the street that the mom and sister witness –
sister could recover because she was in the ZoD but the mother was not so
AFFIRMATIVE DUTIES
The Duty to Rescue
1. RULE: There is not a general affirmative duty to take steps to help or rescue someone else in anyway,
but there is a general negative duty not to harm other people
a. Yania v. Bigan – ∆ convinced the π to jump into a pool of water where he drowned but the ∆ was
under no legal duty to rescue the π unless he put him in the position of peril (mere convincing to do an
act it not sufficient because π knew the risks and did it anyway
2. Good Samaritan Rule has no place in the law  only moral duty
3. No duty is owed to other people to help them – whether they are trespassers or not
a. Buch v. Amory Manufacturing Co. – π trespassed ont0 ∆’s mill and got his hand stuck in a machine 
court ruled the law didn’t compel the owner to stop their business for the protection of a trespasser
i. Owner owes duty not to use excessive force to make trespasser leave, but no other duty (i.e.
no duty to warn)
4. Doctors have no affirmative duty to help (unless family physician or something then he would have a duty
in the special relationship context)
a. Hurley v. Eddingfield – doc refused to go to the sick man’s aid for no good reason but had no
affirmative duty to help
5. Person owes a duty of reasonable care if danger leaves his property because the negative duty is violated
a. If a machine malfunctions and hits a person off of the property, that person can recover
6. Arguments:
a. For No Affirmative Duty Rule:
i. Personal autonomy to do (or not do) what one wishes unless it interferes with the liberty of
others
ii. Unjust enrichment occurs when an affirmative duty creates a forced exchange to confer a
benefit on another
iii. Line drawing: important to draw a hard line between liberty and obligation
iv. Altruism makes the problem a small one and liability may reduce the number of altruistic
rescues by depriving people of credit for altruism
b. Against No Affirmative Duty Rule:
i. Social utility/welfare
ii. Feminist theory: a duty to exercise the “conscious care and concern of a responsible neighbor
or social acquaintance”
Exceptions to the Affirmative Duty Rule: RST §38-§44 if applicable
1. RST §38: statutes can create an affirmative duty to help people – could be general or specific
a. Vermont creates an affirmative duty to provide aid to strangers in grave physical harm
i. Only liable for gross negligence in administering aid
ii. No private cause of action, but a fine for not acting
b. KS & NJ – if you help, you will not be held to the traditional reasonable standard from liability – only
liable for gross negligence
c. More specific affirmative duties created by statute (i.e. affirmative duty of bartenders to stop selling
booze to drunk people)
2. Prior Conduct Creating a Risk of Physical Harm (Complex Act Fact Pattern)
a. RST §39: actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of
a type of characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or
minimize the harm
b. Type of characteristic of conduct: must be a harm characteristic of the situation
i. It is unfair to impose this duty when the actor’s conduct has not generally increased the
risk of harm or is quite removed from the risks that pose harm to the other (similar to
what is foreseeable in consequence in causation)
ii. Hypo: Al takes Betty to a basketball game & Betty trips on the bleachers – Al has no
obligation to help Betty based on §39 because tripping isn’t a characteristic of taking her to
the game
iii. Montgomery v. National Convoy Trucking Co. - ∆’s truck stalled on icy road over a hill and
created a danger non-negligently but still had to take reasonable steps to minimize the harm
(liable for the complex act of not taking those steps
iv. Newton v. Ellis - ∆ not liable for nonfeasance of not putting up lights to show the hole he dug
at night, but the complex act of digging a hole and then providing adequate precaution to
strangers that may come across the hole
v. Hines v. Garret – even if not negligent taking her past her bus stop, now has the obligation to
help her and reasonably take steps to get her to safety
vi. Podias v. Mairs – Mairs drove negligently injury π  Mairs is liable because he negligently
drove causing the accident but are the passengers of his car liable?
1. Wouldn’t be liable because it wasn’t their conduct, but some courts would argue that
they were part of the same enterprise as Mairs so they were liable for the benefit from
Mairs driving them
2. Argue BOTH sides if have a fact pattern like this on exam = gray area
3. Aid to the Helpless, once begun, then undone  need a causal link between discontinuing aid and π
being worse off to be liable
a. RST §44: if you take charge of another person who appears to be imperiled and helpless, you are
subject to liability if
i. a) you fail take reasonable care while the other is within your charge OR
ii. b) you discontinue aid or protection leaving the person in a worse position than when you took
charge of him
b. Elements:
i. ∆ under no duty to help π
ii. takes charge of him who is helpless
iii. intent to provide aid or protection
iv. Liable if:
1. Fails to exercise reasonable care in providing aid or protection
2. Discontinues aid or protection thereby leaving the other in a worse position than
when the ∆ took charge
c. Arguments for §44: fundamental principle to act with reasonable care once you act
d. Arguments against §44: person who honestly but ineptly tries to help another is liable which doesn’t
seem right & doesn’t give anyone an incentive to help
e. Zelenko v. Gimbel Bros – π’s intestate became ill in ∆’s store, ∆ undertook to render aid to π’s
intestate by keeping him segregated without care where aid could not be given. ∆’s neglect was
actionable
4. RST §327: any person who knows or has reason to know that a third person is trying to give another person
aid is liable in tort if he negligently prevents or disables the third person from giving such aid
a. If there was a car accident and an ambulance needs to get to the accident but another car blocks the
intersection anyway negligently preventing/interfering with someone trying to render aid
b. Ploof v. Putnam – landowner had the obligation to use reasonable care to let another use his property
(dock) to save someone
Duties of Owners & Occupiers of Real Property
1. Landowner’s have defenses  AoR is the complete defense
2. Entrants – Traditional Common Law Approach/Categories (from Addie) – GRIBBON FOLLOWS
a. Trespasser: no permission or exceeds permission
i. Owe duty not to use excessive force, but no other duty (i.e. you don’t have to make the land
safe for him)
ii. DUTY not to harm by willful and wanton misconduct
1. You can’t shoot at him
2. Can use a small amount of force to get him off your property
iii. Hypo: Bees attack a trespasser – no duty to warn or to use reasonable care
iv. Gould v. Debeve – jury could not find fixing screen window in violation of statute to be willful
and wanton – trespassing child fell out of the window = stretching concept out of shape here
v. Excelsior Wire Rope Co. v. Callan – kids trespassing on ∆’s property and gets hand crushed
by machine that employees wantonly and recklessly started before making sure no kids were
around
vi. An invitee can become a trespasser if he doesn’t leave when asked – gets a reasonable time
to leave
b. Licensee: allowed on the land, privileged to enter or remain on the land by the possessor’s either
express or implied consent (i.e. social guest)
i. NO DUTY to ensure that the premises are safe
ii. Exceptions:
1. Concealed Dangers – duty not to create or allow concealed dangers to exist that is
not apparent to the visitor, but known, or should be known, to the occupier
a. Majority – must inform licensee of known artificial risks
b. Minority – must inform licensee of artificial risks occupier should know
about
c. Courts split on whether occupier must inform of nature risks
2. Active Operation: duty of reasonable care to licensees when “active operations” are
taking place on the property (duty of reasonable care not to harm others)
a. If driving a tractor & hurt licensee, driver is liable
iii. Trespasser can become a licensee through implied permission – owner waives at trespasser
everyday as he walks through
c. Invitee: person on the property for a business purpose or because it is open to the public – owe a
higher duty of reasonable care (AoR still applies)
i. RST §332: an invitee is either a public invitee or a business visitor
1. Public invitee is a person invited to enter or remain as a member of the public for
a purpose for which the land is held open to the public
a. Ex. farmer opens his farm to the public for a day or someone walking through
the mall even though doesn’t buy anything
2. A business visitor is a person who is invited to enter or remain on land for a
purpose directly or indirectly connected with business dealings with the owner
a. Plumber in a person’s house is an invitee – not open to the public, but there
for business
3. Lemon v. Busey – 5 year old child brought to ∆’s church by her grandmother, a parttime employee and the child wandered off and fell to her death from a rood that she
had reached through an unlocked elevator door – characterized as a licensee and not
allowed recovery
ii. DUTY to warn of dangers, take reasonable steps to discover dangers, and have
reasonable duty to keep the land safe
1. Possible that owner has to warn invitee of danger that seems easily discoverable
a. Ward v. K-Mart – shopper saw the pole coming into the store but forgot about
it on the way out while carrying a large mirror  K-Mart should have known
people could have easily forgotten about the pole, was distracted by the large
package or didn’t really have enough knowledge
i. AoR defense? – π knew about the danger and voluntarily went into
the store  could be an implied duty like Murphy but some courts
wouldn’t allow because the agreement has to be written
d. Distinguish between Invitees and Licensees
i. Focus on the nature of the premises not the π’s purpose for being on the property
1. Rule: those who run business premises, or premises to which the public generally is
invited, are subject to rules for invitees
2. Rule: those who maintain private or residential premises are subject to the rules for
licensees
3. Attractive Nuisance Doctrine – allows a child trespasser to recover when lured onto ∆’s premises by some
tempting condition on ∆’s land that was created and allowed to remain by ∆’s actions
a. RST §339: owner liable for physical harm to trespassing children caused by an artificial
condition upon the land
i. The place where the condition exists is one upon which the possessor knows or has reason to
know that children are likely to trespass
1. Not met if ∆ has never seen children there (Buch has reason to know because the
employee saw the child
ii. Owner knows or should know condition is dangerous to children – not met if ordinary
buildings
iii. Children because of their youth do not realize the risk – not met if child should have
known the risk (ex. 9 yr. old child jumping between trains)
iv. Cost benefit of eliminating the danger vs. the risk to children (Buch could have easily
eliminated the danger)
v. Owner fails to use reasonable care to eliminate the danger to protect the children (Addie
– owner made reasonable efforts to keep people out)
1. Give warnings
2. Stronger argument for ∆ to win
4. Modern Approach - occupier owes a duty of reasonable care to everyone that comes on the property
a. Modern Approach: in the management of his property he has acted as a reasonable man in view
of the probability of injury to others, and, although the π's status as a trespasser, licensee or
invitee may in the light of the facts giving rise to such a status have some bearing on the question
of liability, the status is not determinative
b. Rowland v. Christian – ∆ (occupier) was sued by π (licensee) when he was invited to her apartment
and ∆ didn’t tell π about the concealed danger of the cracked faucet that cut her hand
i. Π could have won under the traditional approach – duty to warn licensee of danger owner
knows about and π is not likely to discover
ii. Majority: proper considerations are not connected to the traditional approach
1. Closeness of connection between injury and ∆’s conduct
2. Moral blame attached to ∆’s conduct
3. Policy of preventing future harm
4. Availability of insurance
5. Foreseeability
6. Burden to ∆
iii. Benefits to Modern Approach: eliminates confusion and conflict
iv. Benefits of Traditional Categories: only the legislature should make big shifts in the law,
might lead to limitless liability for occupier and stability in the law is valuable
c. Pridgen v. Boston Housing Authority – π, 11-year-old boy, climbed into the elevator shaft and became
trapped. ∆’s servant failed to save π’s legs and the court held that there was a duty owed to the
trespasser & abolished the traditional rule
i. Way to win without abolishing the traditional rule:
1. Attractive nuisance won’t work because it was not foreseeable
2. Use RST §39 to hold ∆ liable: those who cause the harm are responsible even if not
tortious – non-negligent conduct of operating an elevator
3. Argue for and against these on exam
d. 8 states have adopted this standard
e. GRIBBON USES TRADITIONAL APPROACH but pressure to move to one of these other
schemes so argue traditional first then push for modern approach
5. Intermediate Approach – 17 states
a. Rule: no duty to trespasser except not to willfully/wantonly cause harm, but duty of reasonable care to
licensee/invitee
b. Peterson v. Balach – keep the old rule for trespassers but take away the distinction between licensee
and invitee because they were both invited onto the land where the trespassers weren’t
i. Still no duty to trespassers except willful wanton misconduct because the trespasser is a
wrongdoer and couldn’t have foreseen the danger as much as when the owner of the land
knows the licensee or invitee was coming onto the property
6. RST 3d §52 comment a: no duty to flagrant trespassers
a. “Egregious or atrocious”, but these terms are left undefined
b. Well’s thinks it’s a burglar, but one case found motorcyclist to be flagrant trespassers
7. What if something escapes your land? Duty of reasonable care not to harm others.
a. Hypo: artificial thing (routed water) escapes from your property, and it harms somebody –
landowner’s liable
8. If someone off your land is harmed by a natural thing on your land, the owner is not liable
a. Tree exception: if the tree is diseased, then duty of reasonable care unless the ∆ does not know of the
disease
b. Sprecher v. Adamson – court imposed an affirmative duty on a land owner to prevent a mudslide after
a heavy rain that would damage the home of his neighbor
i. Wells: not all courts would rule this way, this would normally be a natural thing and there
would be no liability
1. There would be liability under the traditional rule if ∆’s negligence had created the
mudslide
Gratuitous Undertakings – affirmative duty based on the reliance of an undertaking
1. Rule: an affirmative duty can be based on reliance – if ∆ did something to induce reliance and then π relied
a. RST 3d §42: Duty Based on Undertaking – fits nicely with §44
i. Two ways for the π to win
1. a) failure to exercise such care increases the risk of harm beyond that which existed
without the undertaking
2. b) the person to whom the services are rendered or another relied on the actor’s
exercising reasonable care in the undertaking
b. Erie RR Co. v. Stewart – π was a passenger in a truck and was hit by one of ∆’s trains. Π maintained a
watchman at the crossing, but he wasn’t there this time to give the warning – ∆ argued on appeal that
he wasn’t negligent as a matter of law based on reliance (no evidence was stated otherwise)
i. Majority: liability is based on π relying (most courts would agree)
ii. Concurrence: more of a private custom case saying that it does NOT matter is specific π knew
or not – if the custom is known to the general public, negligence can be established as a
matter of law
1. RR should expect anyone to rely
c. Hypo: Driver goes in front of the train – passenger doesn’t know anything about the train
i. Passenger can recover too because a 3rd party can recover from the train owner – doesn’t
matter
d. **∆ has to induce reliance of the π by some undertaking to be liable for reliance theory (but
could always still be liable for some other reliance)
i. can eliminate the reliance but it cannot be abrupt – must take reasonable steps to eliminate
it
e. Limits on Reliance: Martin v. Twin Falls School District –π’s children were hit by a car walking
through the school crossing with proper signs. Π claimed the school had a duty to supply crossing
guards at every intersection because some others had them – court rules for ∆ because not reasonable
reliance just because it’s at some that it should be at all
f. Marsalis v. LaSalle – π was bitten by ∆’s cat. ∆ then promised to keep the cat locked up for 14 days,
but it escaped. π had allergic reaction to rabies shot – court ruled for π
i. No liability based on the original cat bite but liability comes in based on reliance theory
1. What could π have argued instead:
a. Could have classed animal control or something to incarcerate the cat
b. Could have used landowner liability – invitee on the land so the ∆ owed a
duty of reasonable care
i. Act is letting the cat bite π & making the promise and not following
through
c. If licensee or trespasser, §39 could help independent of the invitee rule
d. Could have kidnapped the cat himself using the necessity defense (like Ploof
and Soldano)
2. If the cat did have rabies?
a. No recovery because the “but-for” test would not have been met
i. Π must show damages would not have occurred but for ∆’s breach of
duty
ii. Π would have has the shots either way if the cat was rabid
iii. Failure to keep the cat in was not but-for cause of getting the rabies
test
g. Yania v. Bigan (as gratuitous undertaking)
i. Argument: π relied on ∆ when he encouraged her to jump into the water
1. Π could argue relied on ∆ to help her out
a. Easy case if ∆ said that he would have thrown a rope down or had thrown
down a rope in the past because then ∆ would have clearly relied to his
detriment
h. Difference between Custom and Gratuitous Undertaking is that custom doesn’t require reliance
Privity
1. A & B make a K. A breaches. C is injured. C could not sue A on breach of K – no privity
a. C is not in privity with the K, can C still recover?
i. In some situations, C cannot sue A, but in some C cannot – no rule or RST focusing on this
problem
2. Moch Co. v. Rensselaer Water Co. – ∆ water had K with city supply water and then the 3rd party π sued
because it was a “breach of K” due to the fact the water pressure wasn’t enough from the water hydrant to put
the fire out at π’s barn – court ruled for ∆ because there was no breach of K, common law tort, or breach of
statutory duty
a. Crushing burden argument needs more to work
i. Speculatory argument: hypo
1. Lots of buildings in the city, once fire starts there is a lot that are in danger with some
of more value than others and some more at risk than others to the fire, and some
more resistant
a. cheaper overall because the burden of coping with the fire would be cheaper
than if the individual buildings took charge to have sprinklers, etc. in own
building to protect against fires instead of putting it all on the water works
company
3. Hypo: Al leases property to Bob., Carla comes to Bob’s house (invitee) & gets injured. C sues A. A argues that
he owes no duty to C.
a. Generally, courts reject no privity argument
b. Case is distinguishable from water works because there is not much of a crushing burden & landlord
would be relied on to keep the property safe since he has an interest in it
Special Relationship
1. General Principle RST §315: No duty to prevent 3rd party from causing harm unless:
a. Special relationship between the actor and 3rd party which imposes a duty upon the actor to
control the third person’s conduct OR
b. A special relation exists between the actor and the person to whom harm is caused which gives
the person a right to protection
2. RST 3d §40: an actor in a special relationship with another owes the other a duty of reasonable care with
regard to the risks that arise within the scope of the relationship
a. Special Relationships include: not an exhaustive list
i. Common carrier/passenger
ii. Innkeeper/guest
iii. School/students
iv. Landlord/tenants
v. Custodian/those within custody
3. Land owner has an affirmative duty his tenants through safety measures – reasonable duty under the
circumstances
a. Two questions that arise:
i. Is there a special relationship giving rise to a duty?
ii. What is the context of the duty? (scope)
1. Foreseeability of harm
2. Cost of doing something about it
b. Key factor that links the special relationships: since the ability of one of the parties is to provide for
his own protection has been limited in some way by his submission to the control of the other, a duty
should be imposed upon the one possessing control (and thus the power to act) to take reasonable
precautions to protect the other one from assaults by a 3rd party, which, at least, could reasonable have
been anticipated
i. Verdugo v. Target – Target was under no duty to obtain and make a defibrillator available to
customer who dies of sudden cardiac arrest because it was not in the scope of the special
relationship duty
1. But if had gotten sick in the store, they would be liable to take steps to help call the
doctor  could have been liable for special relationship and gratuitous undertakings
c. Context of Criminal Attacks:
i. Kline v. 1500 Massachusetts Avenue Apt. Co. – π tenant was robbed and criminally assaulted
outside her apartment door in the common hallway – when π signed the lease in 1959, there
were doormen & locked doors at 9pm (no longer supplied that)
1. Court ruled for π – there was no reliance argument because π could not have
reasonably relied – she knew the landlord had gotten rid of security measures
ii. Levine v. Katz – lawyer for landlord could argue that the submission theory is a weak point
because the tenant can move out if they don’t like the situation – can decide how much safety
you want to pay for
1. Most other special relationships are for a shorter period of time like a carrier or
innkeeper – the short-term relationships matter because you cannot choose to move
and you have no knowledge to get out
2. Argument on other side: every apartment building would make you pay more for
safety  would be paternalistic and not consistent with liberty
4. Big change in Torts  NOT traditional doctrine
a. General, widely followed rule – there is a duty because one person has limited the other’s ability to
provide protection for themselves; thus, the one possessing the control has a duty to take reasonable
precautions
i. Tenants doesn’t control common areas
b. Similar duties: landowner-invitee, businessman-patron, employer-employee, school district-pupil,
hospital-patient, carrier-passenger
i. Tenant has some control because he can leave
5. In order to determine the Landlord’s exact duty of reasonable care look to see if prior, similar
dangerous incidents
a. Ann M. v. Pacific Plaza Shopping Center – court refused to allow π, who has been raped in her place
of employment in ∆’s shopping mall, to sue employer’s landlord
i. There had been no previous attacks, so employer’s landlord did not owe a duty of reasonable
care to provide
b. HYPO: Al is a professor at UGA that goes to another university to teach for a year and rents his house
out to Bob who is a student
i. Obligations to prevent will be lower than the landlord-tenant relationship but would have
obligations to have locks that work, an alarm if it’s in a high crime area, but wouldn’t have to
hire guards
6. There is off-premises liability: if the crime is imminent & on-going and can be prevented with minimal
measures then there is a duty
a. Delegado v. Trax Bar & Grill: Patron was attacked while leaving ∆’s restaurant in plain sight of the
restaurants employee’s – court rules it is a landlord’s duty to respond reasonably to criminal conduct
that is imminent or even ongoing in his or her presence
i. Systematically lower duty but still a duty to aid a person who is attacked
1. Cost & foreseeability of taking steps makes the case strong for obligation
a. Distinguish to aid from to prevent
Special Relationship between ∆ and Aggressor
1. RST §41 Duty to Third Persons based on Special Relationship with Person Posing Risks: first three
relationships are easy to justify (involve undertaking), but it isn’t as easy with the fourth one
a. Owe duty of reasonable care to 3rd parties for risks that arise in the scope of the relationship
b. List of special relationships (not exclusive list):
i. Parent with dependent
ii. Custodian with those in its custody
iii. Employer with employees when the employment facilities the employee’s causing harm to 3rd
parties
iv. Mental-health profession with patients (weaker justification than others)
1. Wells’ note: could distinguish mental health professional from other relationships
a. Argument that there should be no duty
i. Other 3 are voluntary undertakings
ii. Doc doesn’t know anything about patient
iii. Not an ongoing, everyday relationship
2. J.S. v. R.T. – wife who knows about husband’s sexual abuse or could reasonably foresee that he would
sexually abuse has a duty to warn
a. Husband and wife can be special relationship
3. Tarasoff v. Regents of University of California – the decedent was killed by Poddar, who had confided in his
doctor about his intention to kill her then her parents sued the hospital
a. Three theories of Liability: OPEN ISSUE IN GRIBBON
i. Tarasoff Majority: ruled there is a duty to warn 3rd parties of theirt patient’s threats if you
should have predicted violence
1. Π could argue this is the majority rule because 17/20 states follow it
2. ∆ can argue only 17/50
ii. Tarasoff Concurrence: if you actually predicted violence, then you have a duty to warn
iii. CA statute: does not matter if predicted/should have predicted… if there is an “actual threat”
against a “reasonably identifiable person”, then the doctor is liable
1. if control over the patient, then still need reasonably specific victim…. If specific
victim, you don’t necessarily need control
iv. Argument: statute is easier to apply than Tarasoff
b. Therapist has to meet reasonable standard of care of the profession when making prediction; but,
whether therapist warned properly, the jury evaluates by an ordinary standard of care
c. Thompson v. County of Alameda – identity of victim was not known so cost of general warning to
neighborhood outweighed the small benefit
d. Duty of reasonable care tends to bite most powerfully in three situations:
i. Where the potential target has been identified by the disturbed person – Tarasoff
ii. There the psychiatrist has somehow facilitated the commission of the crime – Lundgren (doc
vouched for man to get his guns back)
iii. Where the psychiatrist or institution has breached some explicit promise to the future victim –
Long (mental institution promised to warn patient’s wife when he would be released and they
didn’t)
4. HYPO: Psychiatrist/ bartender both make a prediction BUT bartender wouldn’t be liable
DAMAGES
Recoverable Elements of Damages
1. Compensatory Damages (which can always be recovered by π)
a. Elements: should recover all real loss caused by the ∆’s wrongs even if it doesn’t fit neatly into the 3
elements
i. Lost income
ii. Medical expenses
iii. Pain & Suffering
b. Purposes: fairness & deterrence
i. Want π to recover for real losses - ∆ could have taken precaution & π deserves to be
compensated for the loss that he suffered
1. Cummins v. Rachner – allowed recovery for imputed income recovering lost income
even without a salaried job
a. Hypo: housewife injured in accident, has to hire someone to do household
work for 2 weeks  still a real loss to be compensated for
2. Depass v. United States – π suffered leg amputation  showed a connection between
the traumatic limb amputation and decreased life expectancy/ increase in cardio
vascular disease
a. Majority: you cannot get recovery for future loss of life expectancy
b. Posner dissenting: π should recover for work life expectancy if π can offer
sufficient proof
c. Thin- Skull Rule – once liability is established, a person can recover no matter how unforeseeable
i. ∆ injures π, a baseball player, π’s arm is worth $1M  ∆ is liable for the $1M
d. Pain & Suffering – general category of harms that aren’t income or medical expenses
i. Can’t be reduced to money like income or medical expenses
ii. Includes: fright, nervousness, grief, anxiety, worry, mortification, shock, humiliations,
indignity, embarrassment, apprehension, terror, ordeal
iii. Must be conscious because no P&S if not – need to be aware of it at some level to recover
(subjective)
1. If π is not aware of it, it doesn’t exist and there is no real loss
iv. Arguments for P&S when π is conscious:
1. Only way to make π whole is through monetary damages
2. Aim is to provide redress for harm I f can’t make π whole
3. P&S is part of the loss and we want the entire loss to count in the B>PL test
e. Loss of Enjoyment of Life = things π cannot do now
i. McDougald v. Garber – π suffered a comatose condition due to C-Section
1. Issues: should there be compensation for loss of enjoyment of life? Should it be
conscious? Should it be a separate recovery or part of P&S?
a. There should be compensation for loss of enjoyment of life because it is a
real loss
i. The award for loss of enjoyment of life should be included with P&S
otherwise the award would be too much if they were separate (GA
courts place them together)
2. π must be conscious to recover for P$S because if not the money would have no
meaning or utility to the injured person (be like punishment)
a. Fairness would not be served if damages were allowed
3. Dissent: loss of enjoyment of life is an objective damage and is distinct from
conscious P&S
4. Patient might have to be conscious for P&S, but the economic loss for loss of
enjoyment of life exists even if π has no subjective awareness (incentive for damages)
2. Judicial Review for Damages
a. Test for Damages: unclear if the specific wording of each test matters
i. Reasonable trier of fact OR guided by awards of similar injures
ii. Wells’ approach
1. Did the trier of fact abuse discretion? Duncan court forgot this
2. Then look at prior awards
iii. “Shock the conscience” approach
iv. “Inconsistent with the preponderance of the evidence”
v. NY approach – deviates materially from what would be reasonable compensation
b. Approaches for excessive damages
i. Traditional remedy would be a new trial on the damages – or just have a new trial as a whole
ii. Appellate court reduces general damages (like in Duncan – not typical)
iii. Decision/choice on remittitur – π can reduce damages or have a new trial OR on additur – ∆
can add damages or have a new trial  same as GA
c. Some statutes that impose caps on damages have to do entirely with intangible, non-pecuniary
losses (P&S, loos of enjoyment of life)
i. State courts have often overturned these caps based on state constitutional grounds – GA
overturned the caps
ii. Policy for placing caps on recovery – jury awards too much so we need to place a limit on the
damages (usually in the medical context)
d. Examples of Award Schemes:
i. Structured settlements – damages paid out over time which is an advantage to the ∆ because
he pays less at the beginning
1. Policy reason: money could be modified over time i.e. no need to guess about future
medical bills & loss of wage
2. Π could want a structured settlement because he is worried he might outlive a lump
sum
3. ∆ could want a structured settlement because he could end up paying less if π dies
ii. Scheduled damages: specific amount of money for particular injuries
e. Wrongful Death and Survival are statutory topics – all states have both
i. Statute will be present on exam if need to be discussed
ii. Survival statute
1. Tort case survives the death of the π (ex. π dies before the trial and the suit goes on);
and
2. Does not matter how the π dies (ex. accident occurs & π is injured but 2 weeks later
dies of illness – tort case survives)
3. Damages are only available up to the time of death (ex. person dies from earthquake 5
minutes after the accident then not many damages
4. When a person dies, the estate of the decedent is the π in the survival action
iii. Wrongful Death statute only applies if the π was killed as a result of the tort
1. π will be relatives of the decedent
2. Two ways to measure damages:
a. Loss to relatives (majority rule)
i. Ex. Receive money that the decedent would have contributed to them
& not his entire paycheck
ii. Damages estimate what relatives would have received from decedent
iii. If decedent didn’t support the family, they’re in bad shape
b. Loss to estate (minority approach) – more generous
i. Ex. Receive money for the full value of the life including intangible
harms (future value of life)
ii. Even if the decedent had no dependents
iv. Loss of Consortium
1. π is the spouse, not the injured person
2. Real harm for companionship, services, love, and sexual relations
3. Argument to expand to loss to children – resistance to allow parent-child loss of
consortium
a. Most courts reject extending to parents for the loss of children or to children
for the loss of parents
i. Speculative & adds administrative complexity
ii. Line drawing problem: step children? Non-marital relationship?
b. GA limits to spouses
3. Punitive Damages – an award to punish ∆ when his conduct is especially egregious
a. Aim: to punish and deter, goes beyond just making the π whole again
b. Procedure:
i. π asks for instructions on punitive damages at the close of evidence – never entitled to them,
he has to move for them
ii. π cannot appeal PD but ∆ can appeal if they’re excessive
c. Arguments for PD:
i. Compensatory award is inadequate
1. Wells: no logical link between egregious conduct and compensatory damages –
award can be inadequate even if the conduct isn’t egregious
ii. Make sure people channel transactions through the market (want people to buy and not steal)
iii. As a society, we want to express the community’s abhorrence to certain egregious acts so we
punish by PD
1. Ex. Not allow a billionaire to hit someone because he doesn’t mind the $10,000
compensatory damage
iv. Criminal law cannot deal with all the egregious conduct
1. Wells: side-steps the question of why we punish in torts
v. Stronger Argument: there are cases which is it hard to identify and ∆ won’t feel the true
loss without PD
d. HYPO: ∆ sells defective product, 2 million π’s cut their fingers (minor cuts that no one would sue
about but it’s still a big loss) – if someone ever did sue, they should get awarded PD to give ∆ an
incentive to take a precaution
e. Arguments against PD:
i. People should channel their transactions through the market when the costs of voluntary
transactions are low – billionaire shouldn’t bargain to hit other person
ii. When damages are hard to determine, give extra compensatory award
1. Wells: good argument but doesn’t link with rational for punitive damages
Jury can give PD without knowing ∆’s wealth
i. Π not required to put in evidence of ∆’s net worth but is allowed to do so – court usually
allows evidence once a judge gives the instruction on PD
g. Some states cap PD – but if we want to stop the conduct, there is no ground for a PD ceiling (need as
much PD as will stop conduct)
f.
Federal Constitutional Limits on Punitive Damages
1. 8th Amendment: cannot impose C&UP or excessive fine, but has no application to punitive damages
2. 5th Amendment and 14th Amendment Due Process Clause: punitive damages may amount to a deprivation of
property without due process of law (imposes procedural and substantive limits)
3. Procedural Due Process: prohibits grossly excessive harms on a tortfeasor since people should receive fair
notice of conduct subjecting him to punishment & severity of penalty
4. **Substantive Due Process: award is grossly excessive, constituting a deprivation of property
a. State Farm Mutual Automobile Ins. Co. v. Campbell – PD likely cannot be greater than 9x the
compensatory damages amount unless the economic loss is small and the reprehensibility is great
i. Also, must be limited to the harms done to the π’s not to potential other πs who may or may
not have suffered a similar harm
b. Courts look at 3 factors for BMW v. Gore:
i. Degree of reprehensibility of ∆’s misconduct
1. Determine the reprehensibility by focusing on the harm caused to the particular π
a. Whether the harm was physical or economic
b. Reckless disregard of health or safety of others
c. Target of conduct had financial vulnerability
d. Conduct involved repeated actions or was an isolated incident (Wells: get
harm caused to others here)
e. Harm was result of intentional malice or accident
2. Possible to place evidence in a case involving injury caused by ∆ to others out of state,
but it must have a nexus to the π’s harm  can’t punish ∆ for harm caused to others
3. Evidence of actual harm to nonparties can help to show that the conduct that harmed π
posed a substantial risk to others  creates an issue if π can’t show sufficient
similarities with the ∆ conduct
ii. Disparity between the actual or potential harm suffered by the π and the PD award
1. In State Farm, it was 145:1 which is excessive
2. The bigger the ration, the more vulnerable the award is to be unconstitutional
violating DP
3. But there is no bright line test
iii. The difference between the PD awarded by jury and civil and criminal penalties
authorized in comparable cases (other cases had not awarded more than $1M)
c. Courts are reluctant to have a bright line ratio for PD because of the wide variations of facts/
differences in cases
i. Alcorn v. Mitchell (∆ spat on the π) – here, single-digit ratio might not work for
punishment/deterrence since spitting on people would only be a couple of dollars
ii. State Farm suggested single-digit ratio might be a workable limit
Collateral Benefits
1. Collateral Source Rule (traditional): π’s may receive funds from other parties than tortfeasors without
reducing damages – GA rule
a. Hypo: Charlie wins $15,000 from Al and Bob. Charlie’s employer will pay $1,000 of the work he
misses. Does that mean he only gets $14k from Al & Bob?  No, it’s collateral & employer has
nothing to do with the principle that π is entitled to “one whole recovery.”
2. Is the traditional rule a good rule? Well’s says GOOD RULE
a. Argue against traditional rule: Traditional rule seems odd since the goal of tort recovery is
compensation. If compensation is goal of torts, then π shouldn’t be overcompensated by being paid
through multiple people
i. Reason many legislatures have made changes
b. Argue for traditional rule: Considering other goals of tort, the rule doesn’t seem as bad – gives ∆
incentives by making him pay so he feels the actual cost; irrelevant if other people pay the π
i. The goal of tort recovery is to compensate for the sake of doing justice between the
parties
ii. Actual loss doesn’t go away just because someone else paid for it  ∆ should feel actual
loss so he will have incentives
iii. Argument that π is overcompensated by being paid through multiple people (insurance,
employer, ∆, etc.)
1. No, because the damages award is intended to go towards the π, not to penalize ∆
2. Without collateral source rule, insurance premiums are higher and tortfeasor
pays less—this is unfair
3. Subrogation: If the π collected any money from ∆, the π is obligated to pay back their
insurers. Without subrogation, a person could get a "double recovery" - getting paid
twice for the same bill.
a. Ex. If good tort suit, the insurance company will receive the money – clauses
are present in almost all insurance Ks
b. Hypo: π wins judgment--$10,000 for medical expenses, $10,000 for P&S. ∆
can only pay $18,000. π gets $10,000 P&S, insurance gets $8,000.
i. P recovery comes first, then insurance recovery
ii. Most courts rule that a clause in an insurance K that allows ins.
co. to get paid first is unconscionable
3. Tortfeasor & π can’t make an agreement to the detriment of insurance company without the insurance’s
authority
a. Westendorf v. Stasson: ∆ will pay for P&S and loss for consortium (agreement) and the insurance will
have to pay medical expenses  NOT allowed
4. What if U.S. government is the tortfeasor?
a. U.S. government has paid Social Security. Should it be allowed to deduct the amount owed in tort
judgment based on what it paid in SS?
i. Most courts say no
b. U.S. must consent to be sued or it can assert sovereign immunity