Intent
A person acts with the intent to produce a consequence if:
(a) the person acts with the purpose of producing that consequence; or
(b) the person acts knowing that the consequence is substantially certain to result.
a. A person acts with the intent to produce a consequence if
1. (a) the person acts with the purpose of producing that consequence; or
• Garratt v. Daily - intent can be proven with purpose OR knowledge
2. (b) the person acts knowing that the consequence is substantially certain to result.
• Garratt v. Daily - ruled the kid had the knowledge to know with substantially certainty the woman would hit the
ground.
• Shaw v. Brown & Williamson Tobacco - Secondhand smoke case and tobacco company did not satisfy the intent
element; They didn't have specific knowledge that the cigarette was going to hit Shaw. The tobacco company
probably had some general knowledge that secondhand smoke is a thing. But this general knowledge is not
enough. You have to be more particular.
b. The level of intent needed to prove the element can be a spectrum
1. Act itself?
2. Contact (single intent)?
• Idaho case with piano man on the shoulders - contact was enough
• Firecracker in the shoe case - contact that is intentional cannot be negligence, it is intentional, and therefore
battery.
3. Some harm or offense (dual intent)?
• Colorado dementia patient, she needed to be intentional to cause offense or harm
4. Actual/extent of harm or offense?
• Generally not needed to this high of level
c. Intent is subjective
a. The test is not whether a reasonable person would have substantially certain but if that specific actor was.
d. Intent is not motive
a. Motive impels a person to achieve a result. Intent denotes the purpose to use a particular means to effect that result.
Only intent is relevant for purpose of establishing a prima facie case.
i. Skating rink and someone falls: your motive is to help someone, but your intent is to pick the person up off the
ground.
e. Transferred Intent
a. Intent to commit a tort against one person is transferred to the other tort or to the injured person.
a. Transfers if actor commits a different tort against that person.
b. Transfers if actor commits the same tort as intended against a different person.
c. Transfers if actor commits a different tort against a different person.
b. Transferred intent is limited to the Big Five intentional torts
a. Assault; battery; false imprisonment; trespass to land; trespass to chattels.
b. Historically, intent could be transferred between all 5 of them, but now the Restatement only mentions
the transfer between battery and assault.
a. Bank vault example of trying to hit someone in the head with the door but instead you lock them
in the vault. No clear answer whether intent transfers.
Battery - An actor is subject to liability to another for battery if: (a) he acts intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the
person of the other directly or indirectly results.
Battery - must prove intent (purpose or knowledge with substantial certainty), contact, and harm or offense.
•
Intent
a. A person acts with the intent to produce a consequence if
1. (a) the person acts with the purpose of producing that consequence; or
• Garratt v. Daily - intent can be proven with purpose OR knowledge
2. (b) the person acts knowing that the consequence is substantially certain to result.
• Garratt v. Daily - ruled the kid had the knowledge to know with substantially certainty the woman would
hit the ground.
• Shaw v. Brown & Williamson Tobacco - Secondhand smoke case and tobacco company did not satisfy the
intent element; They didn't have specific knowledge that the cigarette was going to hit Shaw. The tobacco
company probably had some general knowledge that secondhand smoke is a thing. But this general
knowledge is not enough. You have to be more particular.
b. Character of intent necessary under battery
1. (1) If the act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact,
or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a
bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the
intention of bringing about the resulting bodily harm.
2. (2) If an act is done with the intention of affecting a third person in the manner stated in Subsection (1), but
causes a harmful bodily contact to another, the actor is liable to such other as fully as though he intended so to
affect him.
• Idea of transferred intent
c. The level of intent needed to prove the element can be a spectrum
1. Act itself?
2. Contact (single intent)?
• Idaho case with piano man on the shoulders - contact was enough
• Firecracker in the shoe case - contact that is intentional cannot be negligence, it is intentional, and
therefore battery.
3. Some harm or offense (dual intent)?
• Colorado dementia patient, she needed to be intentional to cause offense or harm
4. Actual/extent of harm or offense?
• Generally not needed to this high of level
d. Intent is subjective.
1. The test is not whether a reasonable person would have substantially certain but if that specific actor was.
• Contact
a. (1) An actor is subject to liability to another for battery if
1. (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and
2. (b) an offensive contact with the person of the other directly or indirectly results.
b. (2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other
for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and,
therefore, would be negligent or reckless if the risk threatened bodily harm.
c. Contact with an object in intimate association with the body can satisfy the contact element of battery.
1. Fisher v. Carrousel - Fisher holding the plate and it being snatched from him counted as a battery.
• Harm or offense
a. A bodily contact is offensive if it offends a reasonable sense of personal dignity.
1. Must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal
dignity.
• A high five is not offensive to a reasonable person
• James' elbow phobia - an ordinary person wouldn't take offense to having their elbow brushed on a
subway
b. Harm is most likely a little more subjective. Whether the specific person suffered harm.
c. Battery is actionable on nominal damage only because it is a dignitary tort.
1. Dignitary means dignity - a person is able to determine what contact to his person he will allow
2. Fisher - the yelling at the buffet line humiliated him - it affected his dignity
• Causation (getting this element from First Week and brief mention on September 7)
a. Causation in intentional tort is theoretically limitless and unlike negligence you are liable for all harm your actions
caused and not just the harm which was reasonably foreseeable.
• Example of the cat ending up with the coffee from first week
• Voodoo doll then guy hit at baseball game - here there is no bridge linking the voodoo doll to the action, and
therefore no causation
Assault
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and (imminent attaches to contact)
(b) the other is thereby put in such imminent apprehension
(2) An action which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for an
apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or
reckless if the risk threatened bodily harm.
Assault must prove intent, reasonable apprehension of imminent contact; and would be harm/offense
•
Intent
o
An act is done with the intention…if it is done for the purpose of causing such an apprehension or with knowledge
that, to a substantial certainty, such apprehension will result.
o Intent transfers between plaintiffs AND transfers between torts.
▪ Holloway v. Wachovia Bank: cousin sitting in the backseat of the car had a claim of assault even though
the gun was being used to scare the people in the front seat.
▪ Pitcher trying to scare batter and actually hits batter: intent is there b/c transfers between torts.
• Reasonable Apprehension of imminent contact
o Reasonable – Courts generally will not protect a plaintiff against exaggerated fears of contact (unless defendant
knows of the unreasonable fear and uses it to put plaintiff in apprehension). Courts will usually apply a reasonable
person test.
o Does the apprehension necessary for an assault claim have to be 1) apprehension of ANY harmful or offensive
contact or 2) apprehension of a battery?
▪ Restatement goes with 1).
• Example: avalanche hypothetical of person playing landslide sound. Person was in apprehension
of a naturally occurring harmful contact, person playing the sound would still be liable for
assault.
o Actor is liable for assault even if he gives the person a chance to escape the imminent contact, unless the
command is one which the actor is privileged to enforce.
o The apprehension of contact must be immediate. Threats of future contact are insufficient.
• (Would be) harm/offense
o Words do not make the actor liable for assault, unless together with other acts or circumstances they put the other
in reasonable apprehension of an imminent harmful or offensive contact with his person.
• Helpful hypos
o Man points unloaded gun? Assault
o Pointed, loaded gun at the sky above someone’s head? Could be an assault
o Midget took a swing at Muhammad Ali? Could be an assault.
False Imprisonment
(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
© the other is conscious of the confinement or is harmed by it
(2) an act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a merely
transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would
be negligent or reckless if the risk threatened bodily harm.
False imprisonment must prove intent, confinement, and harm or consciousness.
• Intent
o Actor is not liable unless his act is done for the purpose of imposing confinement upon the other, or with
knowledge that such a confinement will, to a substantial certainty, result from it. It is not enough that the actor
realizes or should realize that his actions involve a risk of causing a confinement, so long as the likelihood that it
will do so falls short of a substantial certainty.
o Teichmiller case: Nurse who was getting fired was not falsely imprisoned by her bosses because she couldn’t show
that she was intentionally and unlawfully restrained. Nurse never asked to leave, door was open, boss moved out
of her way.
Confinement
•
o Confinement within the boundaries fixed by the actor must be complete.
▪ Confinement is complete although there is a reasonable means of escape, unless the victim knows of it.
• Victim not required to take the escape if it is offensive to a reasonable sense of decency or
personal dignity. But it is unreasonable for the victim to not make an escape he is aware of
because it’s a slight inconvenience or requires him to commit a technical invasion of another’s
property.
▪ Actor not liable by intentionally preventing another from going in a particular direction.
o Confinement may be by overpowering physical force, or by submission to physical force.
▪ A, a small man, confines B a larger man who could free himself, but still submits. A has confined B.
o
Confinement may be by submission to a direct threat to apply physical force to the other’s person immediately
upon the other’s going or attempting to go beyond the area in which the actor intends to confine him.
o Indirect threats of force.
o Confinement may be by taking a person into custody under an asserted legal authority.
▪ The custody is complete if the person against whom and in whose presence the authority is asserted
believes it to be valid, or is in doubt as to its validity, and submits to it.
o In general, confinement can’t apply to a third party.
o Confinement does not mean exclusion.
o There is no bright line on how big the area of confinement needs to be.
o It is immaterial, except as to the extent of damages, how short the time period of the confinement is.
Harm
or consciousness
•
o Being afraid of someone confining you is not enough to establish the tort action.
Trespass to Land
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest
of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
( c) fails to remove from the land a thing which he is under a duty to remove.
Must prove intent and contact with land (by person or thing).
•
•
•
Intent
o
One whose presence on the land is not caused by any act of his own or by a failure on his part to perform a duty is
not a trespasser.
o The intention which is required is an intention to enter upon the particular piece of land in question, irrespective
of whether the actor knows or should know that he is not entitled to enter.
o It is not necessary that he act for the purpose of entering, it is enough that he knows that his conduct will result in
such an entry.
o One is subject to liability although he acts under a mistaken belief of law OR fact, however reasonable, not induced
by the conduct of the possessor.
Contact with land (by person or thing)
o If the contact is privileged, it is not trespass.
o Intrusion upon the surface of the land or beneath or above the surface constitutes a trespass.
o One who intentionally enters land is subject to liability, although his presence on the land causes no harm.
o It is necessary only that the actor intentionally be upon any part of the land in question.
▪ Ampitheatres: light spillover from the horse track did not fulfill the contact element because, under a
traditional rule, contact must be tangible.
▪ But this tangibility idea is stretched in Martin: intrusion of fluoride particles did constitute a trespass.
(notice the time of atomic weapons when this was decided.)
▪ Bradley v. American Smelting and Refining Co. : smelting company had intent (knowledge with substantial
certainty) and the deposits of microscopic, airborne particles fulfilled the contact element. (Court willing
to go along with something that is not tangible, but damages need to be shown.)
Helpful Hypos
o Intentionally mowing lawn, stone pops out and lands on plaintiff's property.
▪ Intent? No, not intent. Didn't intend contact with neighbor's land.
o If I intended contact with neighbor 2's land, and I'm actually on neighbor 1's land.
▪ Intent for trespass? Yes, intent.
o Guy growing pot on church land?
▪ Intent is there because he intended to make contact with the plot of Earth.
o If guy intends to be chopping down his own trees, he thinks he is on his land, but is actually chopping down B's
trees.
▪ Can he prove intent? Yes because he intended to make contact with the land. (Section 164 of the
Restatement pg. 33. Intrusions under mistake)
o Intended to hit you with the brick, but ended up harming the land by breaking the window of your house?
▪ Can you transfer intent? We don't really know.
Trespass to Chattels
A trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling
with a chattel in the possession of another.
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, (a) he dispossesses the
other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use
of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in
which the possessor has a legally protected interest.
Must prove intent, contact or confinement and injury,
•
•
•
•
Intent
o
Intent is established if the act is done with the purpose of using or otherwise intermeddling with a chattel or with
knowledge that such an intermeddling will to a substantial certainty result from the act.
o Immaterial whether
▪ Actor intermeddling under a mistaken law or fact that he is possessor or that true possessor consented to
it.
▪ the harm so caused was neither intended by the actor nor the result of his negligent or reckless conduct
while trespassing.
o It isn’t clear whether transferred intent (like from battery to trespass to chattels) exists.
Contact or Confinement
o Intentionally bringing about a physical contact.
▪ Beating another’s horse or dog, throwing a stone at an automobile
o Causing a third person through duress or fraud to intermeddle with another’s chattel.
o Intentionally causing the object to come in contact with some other object
▪ Driving a herd of sheep off a cliff
o With dispossession – action lies and nominal damages are available although there has been no impairment of the
condition, quality, or value of the chattel.
Injury
o One who intentionally intermeddles with another’s chattel is subject to liability only if his intermeddling is harmful
to the possessor’s materially valuable interest in the physical condition, quality, or value of the chattel, of if the
possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of
the possessor is affected as stated in Clause (c )
▪ Compuserve, Inc. v. Cyber Promotions, Inc. – injury existed because value of the equipment was
diminished even though not physically damaged. The email intrusion also harmed plaintiff’s business
reputation and goodwill with its customers.
Measure of damages
o Glas – change in value
o Restatement – possessor may recover the full amount of the damage or other impairment to the chattel. He is not
confined to a recovery for the harm done to his possessory interest in it.
Conversion
(1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of
another to control it that the actor may justly be required to pay the other the full value of the chattel.
(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following
factors are important:
(a) the extent and duration of the actor’s exercise of dominion or control;
(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
(c ) the actor’s good faith;
(d) the extent and duration of the resulting interference with the other’s right of control
(e) the harm done to the chattel;
(f) the inconvenience and expense caused to the other.
Must prove intent, control/dominion, and injury.
•
Intent
o
o
Applicable only when the actor receives the possession of a chattel with intent to acquire for himself a proprietary
interest in it.
Bona fide purchaser may be liable if the chattel was stolen.
▪
•
•
•
Bergeron v. Aero Sales – fuel tank purchaser was liable to fuel owner for conversion of fuel because the
title was not bona fide. Seller of fuel tank didn’t know fuel was in there.
Control/Dominion
o Limited to the most serious, major, and important interferences with the right to control the chattel which justify
requiring the defendant to pay its full value.
Injury
o The worse the damage is – the more likely it’s conversion instead of trespass to chattels.
Measure of damages
o Remedy – forced sale/full value
o The measure of damages is the full value (fair market value) of the chattel, at the time and place of the tort.
o Replevin – returning the chattel
Intentional Infliction of Emotional Distress
An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to another is subject
to liability for that emotional harm and if the emotional harm causes bodily harm, also for the bodily harm.
Must prove intent/reckless, conduct (extreme and outrageous), and injury of severe distress.
•
•
•
Intent/Reckless
o Has to be intent to cause distress in addition to the intent to cause the conduct.
o Transferred Intent
▪ Intent transfers within the tort.
• Conduct that is directed towards someone and a third person observes, intent can transfer, but
limited to
o Close family members who contemporaneously perceive the event.
o Practical matter is that most bystanders would fail in their claims.
▪ Intent cannot transfer to battery because IIED is not in the family of five torts.
o Decent argument: If someone is causing harm to a person knowing with substantial certainty it will cause the
witness/bystander emotional distress, then could be liable.
Conduct (extreme and outrageous)
o Requires both that the character of the conduct be outrageous and that the conduct be sufficiently unusual to the
extreme.
o Some degree of emotional harm must be expected in social interaction and tolerated without legal recourse.
o Actor is liable only if the conduct goes beyond the bounds of human decency such that it would be regarded as
intolerable in a civilized community.
o Factors to consider
▪ Relationship of the parties
▪ Whether the actor abused a position of authority over the other person
• Figeueiredo-Torres v. Nickel: therapist was in a position of power by sleeping with his client’s
wife.
▪ Whether the other person was especially vulnerable, and actor knew of the vulnerability.
• Figeueiredo-Torres v. Nickel: he was a therapist who knew the guy’s problem for cripes sake.
▪ The motivation of the actor.
▪ Whether the conduct was repeated or prolonged.
Injury of severe distress
o Law intervenes only when the plaintiff’s emotional harm is severe and when a person of ordinary sensitivities in
the same circumstances would suffer severe harm.
▪ Caldor: store worker couldn’t establish the injury element because his injury wasn’t severe. Worker
continued his normal activities and did not seek psychological assistance until his single visit on the eve of
litigation. Subjective when the person decides to do, but the test of whether the injury was severe is an
objective standard.
Consent
(1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated
to the actor. (2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent
consent and are as effective as consent in fact.
Must prove plaintiff wanted the contact OR plaintiff reasonably manifested willingness.
•
•
•
Plaintiff wanted the contact. OR
Plaintiff Reasonably manifested willingness.
o Directly proven by words or affirmative actions.
o Can be manifested by silence or inaction, if the circumstances or other evidence indicate that it is meaning to be
consent.
o Words or acts or silence or inaction would be understood by a reasonable person as intended to indicate consent
and they are in fact so understood by the other.
▪ Smith v. Calvary Christian Church: no reasonable person could have disagreed that plaintiff consented to
the church’s practices. Express consent by signing the membership thing, implied consent by still engaging
with the church.
o To understand what a reasonable person would consider consent, the customs of the community are to be taken
into account.
▪ Hackbart v. Cincinnati Bengals: rules of the game were relevant to what was going on. The Court looked
to the customs of football. Football player could carry his tort claim forward after being intentionally hit in
the head. The rule against striking helped decide the player didn’t consent also.
• So if you have a rule that specifically permits the action – probably consenting to it
• If the rule is silent – consider custom/usage
• If rule specifically prohibits – likely not to be consenting, but some things in the NBA that are
customs (like fouling) is against the rules but follows the custom.
Things to Know
o Privilege of consent is a complete defense. So intent cannot transfer.
o If your consent is conditional or restricted, you only have consent so far as the condition or restriction is complied
with.
o Consent given by a possessor of land to the actor’s presence on a part of land does not create a privilege to enter
or remain on any other part.
o If the consent to enter land was given for a specific time, actor doesn’t have consent to enter or remain on the
land at any other time.
o Consent obtained by duress upon the possessor of land exerted by the actor, or by a third person to the
knowledge of the actor, is not effective as a consent to his entry.
o Just because you consent to sex, doesn’t mean you consent to STDs.
o Incompetents, drunken persons, and very young children are deemed incapable of consent to tortious conduct.
Self-Defense
Must prove reasonable belief in imminent threat AND reasonable force.
•
•
•
Self-Defense that won’t cause death or serious bodily harm
o Person does not need to retreat, nor comply with a demand
o Person can fight back with non-deadly force
Self-Defense that would be deadly or cause serious bodily harm
o An actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily
harm when he reasonably believes that
▪ The other is about to inflict upon him an intentional contact or other bodily harm, and that he is thereby
put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the
immediate use of such force.
o With this force – you have a duty to retreat if you can do so safely, unless you are in your own dwelling. You also
should comply with a demand before using deadly force (watch example).
▪ Castle doctrine – you can stand your ground in your own home, but you still have to reasonably believe
the force applied to you was going to be deadly or causing serious bodily harm.
o Roberts v. American Employer’s Insurance Co – Officer shot plaintiff in the jaw. officer reasonably believed he was
in danger of substantial physical harm due to plaintiff’s past record of violence, plaintiff was drinking and being
aggressive and was resisting arrest. Therefore, his level of force wasn’t unreasonably excessive, and he could claim
self-defense.
Defense of Third Persons
o Actor can defend a third person under same conditions as he can defend himself if the circumstances are such as
to give the third person a privilege of self-defense, and his intervention is necessary for the protection of the third
person.
o
•
•
•
Mistake of fact is allowed here – Bernice saving third person from police officer who she thought was a mugger.
Policy – we don’t want to discourage the Bernice’s of the world from helping others.
Reasonable belief in imminent threat
o Wife kills her husband in his sleep after long-term physical abuse? Not self-defense because he was sleeping and
therefore not an imminent threat.
Reasonable force
o The force must not disproportionate in extent to the harm from which the actor is seeking to protect himself.
Under the common-law “American Rule,” normally parties are responsible for their own pay arrangements with their
attorneys, no matter who wins the case. But under section 776.032(3) of Florida statute, a defendant in a civil case who
successfully raises the “stand your ground” defense will be able to get his or her attorney’s fees paid for by the losing
plaintiff.
Defense to Property
Must prove reasonable belief in the need to use force AND level of force has to be reasonable.
•
•
•
Reasonable belief in the need to use force.
o Example – if you’ve already warned the person to leave and they haven’t, then it’s reasonable that you need to use
force to motivate them off the land.
Level of force is reasonable.
o Katko v. Briney – spring-loaded shotgun was not reasonable level of force to protect against intruders on
unoccupied personal property. The shotgun was deadly or capable of causing serious bodily harm.
Things to remember
o Defense by non-threatening force
▪ Can use if the intrusion is not privileged or the other intentionally or negligently causes the actor to
believe that it is not privileged and the actor reasonably believes that the intrusion can be prevented or
terminated only by the force used and the actor has first requested the other to desist and the other has
disregarded the request, or the actor reasonably believes that a request will be useless or that substantial
harm will be done before it can be made.
o Use of mechanical device not threatening death or serious bodily harm
▪ Actor can use the device and is not liable for bodily harm done thereby to intruder if
• The use of the device is reasonably necessary to protect the land or chattels from intrusion
• The use of the particular device is reasonable under the circumstances and
• The device is one customarily used for such a purpose, or reasonable care is taken to make its
use known to probable intruders.
o Example of fence spikes: was the force reasonably needed, was the force reasonable,
and was there a warning?
o Use of deadly force
▪ You’re privileged to use the deadly force mechanically to the same extent to which you use the deadly
force.
▪ Usually in trespass to property/chattels – deadly force is excessive.
o You can threaten to use more force than you actually intend to use.
▪ A picks up a stick to scare kids off his property, though he wasn’t going to beat them with the stick.
o Fresh pursuit doctrine
▪ You’re allowed to go after someone and use force to get your property back. The pursuit itself is a
warning you’re going to be using force. But fresh pursuit, there is an undefined time limitation. Also,
peaceable trespass to retrieve stolen property is okay.
o Citizen's Arrest - limited to when a witness has seen a felony, then you are privileged to detain the person.
▪ The shopkeeper's privilege: if you are a shopkeeper, and you have reason to believe someone may have
shoplifted, you can detain that person using reasonable force.
Necessity
Public: One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for
the purpose of averting an imminent public disaster.
Private: (1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary
to prevent serious harm to (a) the actor, or his land or chattels, or (b) the other or a third person, or the land or chattels of either,
unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.
(2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of
the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except
where the threat of harm to avert which the entry is made is caused by the tortious conduct or contributory negligence of the
possessor.
•
Reasonably appears to be necessary
o Ploof v. Putnam – the family had no other choice but to moor their boat to the dock to avoid danger to their lives
and property. Therefore, they could raise the necessity defense.
•
Private Necessity
o Privilege to trespass, the owner cannot use force to keep you out, but you are liable for any harm, when the entry
is for the benefit of an actor or a third person.
o Where the possessor of land resists such a privileged entry, the actor’s use of reasonable force to overcome such
resistance to his entry or remaining on the land so long as the necessity continues is completely privileged.
Therefore, he is not liable for harm so occasioned.
o Considered a qualified privilege.
▪ Vincent v. Lake Erie – ship owners were liable to the dock owners for damage caused to the dock by ship
owners using the dock to preserve its more valuable property.
Public Necessity
o Privilege to trespass, the owner cannot use force to keep you out, and you are not liable for any harm caused.
Considered to be absolute privilege.
o Since the privilege is based upon the appearance of necessity, if the actor believes that the impending disaster may
be prevented or mitigated in some other reasonable way, and such is the fact, the entry is not privileged.
▪ United States v. Caltex kind of belongs here. The government didn’t owe the oil terminal facilities any
money under the takings clause because they blew up the oil facilities to avoid them being used in the
war by the enemy.
•
END OF MIDTERM MATERIAL
Negligence
To succeed in a negligence action, a plaintiff must prove the following elements
(1) A duty of reasonable care
(2) Breach of duty (The AB elements together can be referred to as “negligent” (he acted negligent by breaching duty)
(3) Causation
(4) Damages
1. A duty of reasonable care (question of if a duty exists is a legal question)
a. “Reasonable Person” Standard of Care
i. Duty to act as a reasonable person under the circumstances
1. Caveats
a. Sometimes you don’t have a duty at all – Yania swimming case (below)
b. Sometimes this duty is less – premises liability (below)
c. Cardozo thinks there isn’t a duty for unforeseeable plaintiffs. (Palsgraf)
ii. Brown v. Kendall – dog owner with stick. what constitutes ordinary care will vary with the circumstances
of cases. In general, it means that kind and degree of care, which prudent and cautious men would use,
such as is required by the exigency of the case, and such as is necessary to guard against probably danger.
iii. The standard for negligence is ordinary care, and ordinary care is an objective reasonable person
standard, not a subjective “best this person could do” standard.
1. Vaughan v. Menlove – haystacks on fire case. Court rejected that a defendant’s particular
sensibilities should be taken into account.
iv. Restatement – Ordinary Duty of Care
1. (a) an actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a
risk of physical harm. (b) in exceptional cases, when an articulated countervailing principle or
policy warrants denying or limiting liability in a particular class of cases, a court may decide that
the defendant has no duty or that the ordinary duty of reasonable care requires modification.
b. “Reasonable Person” standard: circumstances
i. Children
1. Compare child to other children of same age, intelligence, and experience, but the modern view
is that if the child is engaged in an adult activity, they are judged by adult standard
a.
c.
Charbonneau v. Macrury – 17-year-old boy who is licensed killed a 3-year-old while
driving. The 17-year-old could have the instruction to have the jury judge him by his age
and experience.
b. Daniels v. Evans – 19-year-old operating motorcycle was judged by the same standard as
an adult.
2. Restatement - Children
a. (a) a child’s conduct is negligent if it does not conform to that of a reasonably careful
person of the same age, intelligence, and experience, except as provided in Subsection
(b) or (c).
(b) a child less than five years of age is incapable of negligence.
(c) the special rule in subsection (a) does not apply when the child is engaging in a
dangerous activity that is characteristically undertaken by adults.
ii. Physical Disability
1. Compare the conduct to reasonable care of person with same disability.
2. If old age affects physicality, can be treated as a disability.
3. Courts are reluctant to acknowledge a mental disability due to fraud, but the trend is toward
making adjustments to allow.
4. Restatement – Disability
a. (a) the conduct of an actor with a physical disability is negligent only if the conduct does
not conform to that of a reasonably careful person with the same disability.
(b) the conduct of an actor during a period of sudden incapacitation or loss of
consciousness resulting from physical illness is negligent only if the sudden
incapacitation or loss of consciousness was reasonably foreseeable to the actor.
i. Breunig v. American Family Insurance Co. – Woman with the Jesus take the
wheel moment could have sufficient foreknowledge that a hallucination like
that could happen. If it really was a sudden onset of this mental problem - then
maybe we can treat it as a physical problem.
(c) an actor’s mental or emotional disability is not considered in determining whether
conduct is negligent, unless the actor is a child.
iii. Knowledge & Special Skills
1. Restatement – Knowledge
a. If an actor has skills or knowledge that exceed those possessed by most others, these
skills or knowledge are circumstances to be taken into account in determining whether
the actor has behaved as a reasonably careful person.
iv. Emergency
1. The emergency doctrine "recognizes that when an actor is faced with a sudden and unexpected
circumstance which leaves little or no time for thought, deliberation or consideration, or causes
the actor to be reasonably so disturbed that the actor must make a speedy decision without
weighing alternative courses of conduct, the actor may not be negligent if the actions taken are
reasonable and prudent in the emergency context”
a. Pelletier v. Lahm – girl who took her hand off the wheel to cover her breasts after the
passenger pulled off her bikini top was in a sudden and unexpected circumstance.
Limited Duty
i. Misfeasance: a lawful act performed in a wrongful manner.
ii. Nonfeasance: the failure to act when a duty to act exists.
iii. When must you do something?
1. When defendant created the foreseeable risk
a. Doctrine: (1) there is no affirmative duty to act, but (2) if the defendant has created an
undue risk, then there is a duty to act reasonably.
b. Restatement: An actor whose conduct has not created a risk of physical or emotional
harm to another has no duty of care to the other unless a court determines that one of
the affirmative duties provided in sections 38 – 44 is applicable.
i. Yania v. Bigan – A husband voluntarily jumped in pit and other man didn’t save
him from drowning. Court ruled there was no duty to rescue, and the husband
was a reasonable and prudent adult and performed an act which he knew or
should have known was perilous; it was the performance of that act and not
defendant’s conduct which caused the husband’s death.
d.
ii. Day v. Waffle House, Inc. – Court ruled that Waffle House owed a duty to
others, including the plaintiff, to use ordinary care to not place them in peril,
especially since a rescue attempt is a foreseeable consequence of the
restaurant’s breach of duty. Because they put glass in the food, it was
foreseeable that someone would make an attempt to rescue and hit another in
an attempt to drive to the hospital.
c. Restatement: When an actor’s prior conduct, even though not tortious, creates a
continuing risk of physical harm of a type characteristic of the conduct, the actor has a
duty to exercise reasonable care to prevent or minimize the harm.
i. Weirum v. RKO General, Inc. – radio station contest where teens were driving
negligently in attempt to win the contest. Court ruled radio station was liable
because they created an undue risk of harm.
2. When defendant voluntarily assumes the duty, and plaintiff reasonably relies
a. Florence v. Goldberg – lack of crossing guard caused injury to a child. Court ruled that
when the police department voluntarily assumed a duty to supervise school crossings,
they could be negligent for failing to provide a crossing guard or notifying the school to
take appropriate action.
3. Special relationship with victim.
a. Farwell v. Keaton – demonstration of how far a Court will take a “special relationship”
this case was two friends and one friend didn’t tell anyone his friend had been
clobbered and left him in a vehicle, where he later died. Court found the defendant had
an affirmative duty to come to his friend’s aid.
b. Restatement: An actor in a special relationship with another owes the other a duty of
reasonable care with regard to risks that arise within the scope of the relationship.
i. Special relationships giving rise to the duty provided in Subsection (a) include: a
common carrier with its passengers, an innkeeper with its guests, a business or
other possessor of land that holds its premises open to the public with those
who are lawfully on the premises, an employer with its employees who, while
at work, are in imminent danger or injured or ill and thereby rendered helpless,
a school with its students, a landlord with its tenants, and a custodian with
those in its custody if the custodian is required by law to take custody or
voluntarily takes custody of the other, and the custodian has a superior ability
to protect the other.
4. If you have a special relationship with the tortfeasor – you have a duty to help a third person
a. Tarasoff v. Regents – therapist had a duty to use reasonable care to protect the
intended victim if the therapist determines that his patient presents a serious danger of
violence to another.
b. Restatement – Affirmative Duties
i. An actor in a special relationship with another owes a duty of reasonable care
to third parties with regard to risks posed by the other that arise within the
scope of the relationship.
1. Special relationships giving rise to the duty provided in Subsection (a)
include: 1) a parent with dependent children, 2) a custodian with
those in its custody, 3) an employer with employees when the
employment facilitates the employee’s causing harm to third parties,
and 4) a mental-health professional with patients.
Premises Liability (see premises liability chart)
i. Trespassers
1. Definition: a person who enters or remains upon land in the possession of another without a
privilege to do so created by the possessor’s consent or otherwise
2. Duty to unknown trespasser
a. not to intentionally or recklessly harm, but force can be used to defend property if there
is a proper warning
3. Duty to known trespasser
a. Not to intentionally or recklessly harm
b. use reasonable care in activities (if risk of serious harm)
c. Warn of known hidden artificial conditions (if risk of serious harm)
4. Duty to known child trespasser
a. Not to intentionally or recklessly harm
b. Duty to use reasonable care in activities
c. Warn of known hidden artificial conditions
d. Use reasonable care to repair artificial conditions – attractive nuisance
5. Restatement:
a. Section 333: Except as stated in sections 334-339, a possessor of land is not liable to
trespassers for physical harm caused by his failure to exercise reasonable care (a) to put
the land in a condition reasonably safe for their reception, or (b) to carry on his activities
so as not to endanger them.
b. Section 334: a possessor of land who knows, or from facts within his knowledge should
know, that trespassers constantly intrude upon a limited are thereof, is subject to
liability for bodily harm there caused to them by his failure to carry on an activity
involving a risk of death or serious bodily harm with reasonable care for their safety.
c. Section 335: a possessor of land who knows, or from facts within his knowledge should
know, that trespassers constantly intrude upon a limited area of the land, is subject to
liability for bodily harm caused to them by an artificial condition on the land, if (a) the
condition is one which the possessor has created or maintains and is, to his knowledge,
likely to cause death or seriously bodily harm to such trespassers and is of such a nature
that he has reason to believe that such trespassers will not discover it, and (b) the
possessor has failed to exercise reasonable care to warn such trespassers of the
condition and the risk involved.
d. Section 339: A possessor of land is subject to liability for physical harm to children
trespassing thereon caused by an artificial condition upon the land if (a) the place where
the condition exists is one upon which the possessor knows or has reason to know that
children are likely to trespass, and (b) the condition is one of which the possessor knows
or has reason to know and which he realizes or should realize will involve an
unreasonable risk of death or serious bodily harm to such children, and (c) the children
because of their youth do not discover the condition or realize the risk involved in
intermeddling with it or in coming within the area made dangerous by it, and (d) the
utility to the possessor of maintaining the condition and the burden of eliminating the
danger are slight as compared with the risk to children involved, and (e) the possessor
fails to exercise reasonable care to eliminate the danger or otherwise to protect the
children.
ii. Licensees
1. Definition: a person who is privileged to enter or remain on land only by virtue of the possessor’s
consent (includes one who presence upon the land is solely for his own purposes, members of
the possessor’s household, and social guests).
2. Duty to Licensees
a. Not intentionally or recklessly harm
b. Use reasonable care in activities
c. Warn of known hidden artificial conditions
d. Warn of known hidden natural conditions
3. Caveat: Kansas treats licensees like invitees.
a. Mozier v. Parsons - Kansas case where kid drowned in a pool. Because licensees and
invitees are treated the same – attractive nuisance doctrine isn’t needed.
4. Restatement:
a. Section 341: A possessor of land is subject to liability to his licensees for physical harm
caused to them by his failure to carry on his activities with reasonable care for their
safety if, but only if, (a) he should expect that they will not discover or realize the
danger, and (b) they do not know or have reason to know of the possessor’s activities
and of the risk involved.
iii. Invitees
1. Definition: either a public invitee or a business visitor; a person who is invited to enter or remain
on land as a member of the public for a purpose for which the land is held open to the public; 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 possessor of the land.
a.
Holzheimer v. Johannesen – boxes tumbling down case. Jury heard both licensee and
invitee instructions because there could have been an economic benefit for the guy to
be there.
b. Palmtag v. Gartner Construction – pregnant wife who fell in her remodeled home due to
construction was still an invitee. She was still an invitee even if it was her own property
because there was an economic benefit to the construction company to have her visit.
2. Someone is an invitee is providing an economic benefit to land owner/possessor, or they have a
public invitation (majority rule)
a. Hambright v. First Baptist Church – minority view of public invitation. The church lady
who slipped on the floor at the church was there as a licensee.
3. Duty to Invitees
a. Not intentionally or recklessly harm
b. Use reasonable care in activities
c. Warn of known hidden artificial conditions
d. Use reasonable care as to artificial conditions, this may include inspection and repair.
e. Warn of known hidden natural conditions
f. Some courts now impose that there is a duty to use reasonable care (inspection and
repair) for natural conditions also
4. Restatement:
a. Section 341A: A possessor of land is subject to liability to his invitees for physical harm
caused to them by his failure to carry on his activities with reasonable care for their
safety if, but only if, he should expect that they will not discover or realize the danger,
or will fail to protect themselves against it.
iv. Attractive Nuisance doctrine
1. Special duty to known child trespassers, defendant has a duty to warn and when reasonable,
repair (but not inspect) known hidden artificial dangers if child would not understand the danger
due to their youth.
2. Majority view – an attractive nuisance need not be what attracted the plaintiff child onto the
defendant’s land. (but traditional view, and Kansas still follows, that is must be.)
v. Firefighter Rule
1. Usually government officials on land are treated as invitees, but firefighters, and now usually
police officers, are treated as licensees with respect to the dangerous condition for which they
are called to land. For other conditions, they are still invitees.
a. Chapman v. Craig – Policeman couldn’t sue the bar owners after being injured by a
drunk bar patron because the injury was associated with the reason the officer was
called. He was demoted to a licensee.
2.
Breach of Duty (question of whether duty is breached is a mixed question of law and fact and fair game to jury)
a. Calculus of Risk
i. Use the Hand Formula: conduct is negligent if B < PL. You’re negligent because it’s unreasonable.
1. B: Burden of precautions to eliminate or reduce the risk of harm
2. P: Probability; The foreseeable likelihood that the person’s conduct will result in harm
3. L: Loss; the foreseeable severity of any harm that may ensure
4. Defendants want to maximize the burden, and minimize the loss and probability.
5. Plaintiffs want to minimize the burden and maximize the loss and probability.
6. United States v. Carroll Towing Co. – where Hand formula was adopted. bargee who should have
been on board. The barge owner was liable because the burden was very low to prevent the
accident, simply paying the bargee to be on board, while the loss and probability were very high
as it was a crowded harbor with lots of expensive cargo.
7. Brotherhood Shipping Co. v. St. Paul – cross-slapping ships; city was negligent because the loss
and probability were substantial, and three types of precautions were available as differing levels
of burden (but still cheaper than PL) and they did nothing.
ii. In less precise terms, usually courts weigh two abstract concepts to decide reasonability
1. The burden of preventing accidents
2. The cost of probable accidents
a. Rinaldo v. McGovern – golfers shattering windshields. The court did not explicitly use
the Hand formula but they did weigh concepts. The idea that a ball flies in a separate
b.
c.
direction is a risk inherent in the game and the presence of such a risk does not, by itself
import tort liability.
iii. Restatement – Calculus of Risk
1. Restatement: a person acts negligently if the person does not exercise reasonable care under all
the circumstances. Primary factors to consider in ascertaining whether the person’s conduct
lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm,
the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate
or reduce the risk of harm.
Role of Custom
i. Comparing defendant’s conduct to those similarly situated. If the act is typically done, it is reasonable to
do it. If it is typically not done, it is not reasonable to do it.
1. Non-professional custom (everything but doctors or lawyers)
a. Majority: relevant but not dispositive
i. Mayhew v. Sullivan Mining Co. – Wanted expert to testify on reasonableness of
holes in mining shafts. Excluding the expert was appropriate because the court
system could decide on their own whether the mining company’s acts were
reasonable.
ii. T.J. Hooper – case for relevant but not dispositive. The industry standard was to
have receiving sets to communicate. This fact was relevant in the final
judgment that the tug owners were negligent, as their vessels were
unseaworthy.
iii. Doe v. Cutter – AIDs infected blood case. The fact that a defendant was
following standards of industry is not dispositive on the issue of negligence,
because what ought to be done is fixed by a standard of reasonable prudence,
whether it usually is complied with or not.
2. Professional custom (doctors & lawyers)
a. Majority: dispositive
i. (Why? Because lay fact-finders are less able to assess the reasonableness of
conduct of professional specialists, so they really have to look at custom to
determine. Then when looking they usually adhere. Law & medicine are
learned professions that are self-regulating and have gained the public trust
and thus warrant more deference than other trades.)
ii. Brune v. Belinkoff – case on dosage of a spinal drug. Local doctor was held to
nationwide professional custom instead of local custom.
iii. Helling v. Cary – minority showing professional custom isn’t dispositive: didn’t
give glaucoma tests under 40 years old as a custom. Court said you didn’t need
to look at custom to determine whether this was negligence, they went
through a cost/benefit analysis instead.
3. Exception: Informed consent, which is a reasonable patient standard.
a. Canterbury- professional custom also isn’t dispositive. spinal paralysis case. doctors have
a duty to inform the plaintiff about the risks that a reasonable patient would have
wanted to know about.
ii. Restatement - Custom
1. (a) an actor’s compliance with the custom of the community, or of others in like circumstances, is
evidence that the actor’s conduct is not negligent but does not preclude a finding of negligence
2. (b) an actor’s departure from the custom of the community, or of others in like circumstances, in
a way that increases risk is evidence of the actor’s negligence but does not require a finding of
negligence.
Negligence Per Se
i. Dipositive - When defendant violates a statute that was created with the purpose of protecting people
like the plaintiff from injuries like the plaintiff suffered
1. Osbourne v. McMasters – the mere failure to comply with the statutory requirement of labelling
a deadly poison was considered negligence
2. Martin v. Herzog – the buggy was negligent by not having lights on their buggy, based on a
statute that ordained lights.
3. Vesely v. Sager – tavern owner who served alcohol to man who later got into a wreck owed
plaintiff a duty of care because the statute prohibiting the behavior was to protect plaintiffs like
d.
this from injuries like that. However, wasn’t entirely dispositive because there was still an
opportunity to rebut the presumption of negligence.
ii. Relevant but not dispositive – when complying with statute, because it could be unreasonable under
circumstances not to be even more careful.
1. i.e. going 69 in a 70 when it’s icy outside and recommended to drive slower.
iii. Irrelevant – when the statute doesn’t have the purpose of protecting (e.g. licensing statute)
1. Brown v. Shyne – Fake chiropractor paralyzed a woman. The licensing statute wasn’t connected
to her injury. The plaintiff could show negligence through normal methods, not by automatically
pointing to statute.
iv. There is a split of authority on whether a regulation or ordinance can be held to same level as statute.
1. Restatement says to treat statutes and regulations and ordinances the same way.
2. But many states don’t take the Restatement position. They treat it as a 1.5 position (as the Vesely
case) where there is a presumption of negligence and the defendant has an opportunity to rebut
the presumption.
v. Restatement – Statutory Violations as Negligence Per Se and Statutory Compliance
1. 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 of persons the statute is designed to protect.
2. An actor’s violation of a statute is excused and not negligence if:
a. The violation is reasonable in light of the actor’s childhood, physical disability, or
physical incapacitation;
b. The actor exercises reasonable care in attempting to comply with the statute;
c. The actor neither knows nor should know of the factual circumstances that render the
statute applicable;
d. The actor’s violation of the statute is due to the confusing way in which the
requirements of the statute are presented to the public; or
e. The actor’s compliance with the statute would involve a greater risk of physical harm to
the actor or to others than noncompliance.
3. (a) An actor’s compliance with a pertinent statute, while evidence of nonnegligence, does not
preclude a finding that the actor is negligent under section 3 for failing to adopt precautions in
addition to those mandated by the statute.
(b) if an actor’s adoption of a precaution would require the actor to violate a statute, the actor
cannot be found negligent for failing to adopt that precaution.
Judges & Juries; Res Ipsa Loquitor
i. Judges and Juries
1. Juries resolve questions of fact, while judges resolve questions of law. Because negligence is a
mixed question of law and fact, the position is to let juries decide but judges have a quick trigger
to pull some procedural device.
a. Baltimore & Ohio R.R. v. Goodman – Wendall Holmes was snatching cases from the jury.
Says people at trains need to get out and look and for all future cases you need to also.
Demonstration of judges pulling a quick trigger.
b. Pokora v. Wabash – follows Baltimore case, Holmes is out and Cardozo is in. another
train case, and Cardozo is saying the question of fact must go to the jury.
c. Wilkerson v. McCarthy – it was a factual dispute whether an employee who sued his
employer after falling in a hole walked over the boards. Therefore, it was improper to
direct the verdict when the jury could decide on the factual dispute.
ii. Res Ipsa Loquitor
1. translates to “The thing speaks for itself.” Meaning the accident itself speaks.
2. It allows a plaintiff to get to the jury despite lack of evidence of what defendant did that
breached duty of care. The jury can infer negligence on the part of the defendant, with the hope
being the potential liability “smokes out” information from the defendant(s) to fill the void.
3. The event must be one that ordinarily happens as result of negligence of “class of actors” of
which defendant is member
4. Note – res ipsa is about proving breach of duty – not causation.
a. Compare alternative & enterprise liability: those doctrines help prove causation
5. Elements
a. Is accident one that does not ordinarily occur without someone’s negligence?
(traditional element)
6.
7.
3.
b.
c.
d.
Cases
a.
Can plaintiff identify instrumentality (thing) that caused injury? (traditional)
Did the (one) defendant have exclusive control over instrumentality? (traditional)
Did accident occur on or near defendant’s premises? (suggested by Byrne)
Byrne v. Boadle - flour falling is friggin plenty. Plaintiff didn’t have to provide the
circumstantial evidence, as the falling was evidence enough. If it wasn’t negligence that
caused the fall – then defendant needed to bring those facts forward.
b. Larson v. St. Francis Hotel – chair falling from hotel. Because the chair falling could have
been from multiple causes, and plaintiff failed to prove that defendant had exclusive
management or control of the falling chair, res ipsa loquitur doctrine did not apply.
c. Brown v. Poway Unified School District – slipping on lunch meat. The court concluded
that res ipsa loquitor did not apply because there was no basis for a finding that
plaintiff’s slip-and-fall was the type of accident that ordinarily would not occur in the
absence of someone’s negligence or that it was within exclusive control.
d. Ybarra v. Spangard – paralysis after appendectomy. Though the plaintiff couldn’t
identify the thing or that one person had exclusive control, res ipsa loquitor could
happen here and jury could hear. All defendants who had any control over his body or
instrumentalities were inferred negligent and had to give an explanation of their
conduct (smoking out evidence).
Restatement – Res Ipsa Loquitor
a. The factfinder may infer that the defendant has been negligent when the accident
causing the plaintiff’s harm is a type of accident that ordinarily happens as a result of
the negligence of a class of actors of which the defendant is the relevant member.
Causation
a. Cause in Fact
i. But-For Test – main test
1. Plaintiff will argue “But-for the defendant’s negligence, plaintiff would not have suffered injury”
a. Thereby defendant usually argues that even without its negligence, plaintiff still would
have suffered the injury
b. You meet the but-for test if, when you wipe away the negligence, you also wipe away
the injury.
2. But for test works for plaintiff in cases with “chain” of causation
a. Back to the Future example, Marty’s grandpa
3. Dapp v. Larson – slipping on the doormat case. Plaintiff failed in showing that but-for the
defendant having the doormat, she wouldn’t have suffered her injury. Not enough evidence to
prove cause-in-fact.
4. Williams v. Emro Marketing Company – there was enough circumstantial evidence to show that
the ice was the cause-in-fact to survive summary judgement.
5. Restatement But-For Cause: 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. Tortious conduct may also be a factual cause of harm under section 27.
ii. Substantial Factor Test
1. Used in “spoke situations” such as when the two fires convene.
2. The purpose of the substantial factor test – without it a plaintiff would fail against each
defendant, because absent one defendant’s negligence, the injury still would have occurred. And
this is unfair. So courts then call each defendant’s negligence a substantial factor.
a. Anderson v. Minneapolis – convening fires, one fire smoldered in a bog, but then the
locomotive sparks caused another fire that teamed up and hurt plaintiff’s property.
Court brought up substantial factor and speculated as to possible outcomes. So there
were three scenarios that could result
i. Simultaneous fires, but other fire is negligence – can prove cause-in-fact,
because both fires were a substantial factor.
ii. Simultaneous fires, but other fire is natural – also fails but-for test, but again
could use substantial factor and might win if the court wants the loss on the
negligent defendant and not the innocent plaintiff.
iii. If one fire is earlier than the other – if defendant’s fire was first, you win but-for
cause and causation is proven. If defendant’s fire was second, you can’t have
causation.
b.
b.
Dillon v. Twin State Gas & Electric – this was the boy who tripped and got electrocuted
on the bridge. Need to figure out if but-for the electricity the boy would have lived.
Substantial factor was a way to prove cause in fact. Court ruled there was sufficient
evidence to hold defendant liable for exposing the boy to the dangerous wires.
3. Restatement Multiple Sufficient Causes: If multiple acts occur, each of which under section 26
alone would have been a factual cause of the physical harm at the same time in the absence of
the other act(s), each act is regarded as a factual cause of the harm.
iii. Lost Opportunity Doctrine
1. Allows plaintiff to meet cause in fact based on an idea of lost opportunity, in situations where a
plaintiff fails the but-for test because they have less than or equal to 50% chance of saving
something.
2. You don’t need to worry about lost opportunity if you can prove evidence above 50%.
3. Most courts accept for certain cases, but not all (i.e. only wrongful death cases)
a. Weymers v. Khera – girl wants lost opportunity for only being able to use 10% of
kidneys. Court held that state of Michigan did not recognize a cause of action for the
loss of an opportunity to avoid physical harm less than death.
4. Remedy is usually for lost opportunity, not for harm itself, and thus is reduced.
a. Full kidneys are $1 million, you had a 30%-40% chance of kidneys, maybe damages are
$300-400k
iv. Statistical Evidence
1. Purely statistical evidence can be used to prove cause in fact if the evidence shows above a 50%
chance (preponderance of evidence) that but for defendant’s negligence, there wouldn’t have
been an injury.
a. Common in drug cases
b. Issue is whether drug defect more than doubled baseline chance of injury
i. Daubert v. Merrell DOW Pharmaceuticals – plaintiff’s expert testimony couldn’t
show causation. What would have shown causation was this doubled baseline,
1. so if normal birth defect was 1/1,000 people
2. The drug’s effect (and defendant’s negligence in manufacturing)
needed to be greater than 2/1000 people (in the Daubert case,
plaintiff’s best evidence only showed 1.5/1000, and wasn’t enough).
Proximate Cause
i. Disclaimer: It is necessary to prove proximate cause in every case of negligence, but it is usually routine. If
plaintiff’s injury is a harm within the scope of the risk that made defendant’s conduct negligent, then
proximate cause is generally met. It’s the freaky cases, or when something about the injury is arguably
unforeseeable, where proximate cause becomes a significant issue.
ii. Direct Cause
1. This is a minority view. Even if the type of harm was unforeseeable, as long as the defendant’s
negligent was “direct cause of the injury”, proximate cause could still be met.
a. Polemis – ropes and sling > board falls > hits benzine gas > explosion. Because the board
falling was the direct cause of the explosion, we don’t care that the type of harm was
unforeseeable. Proximate cause is still met.
iii. Foreseeability
1. Restatement
a. An actor whose negligence is a factual cause of physical harm is subject to liability for
any such harm within the scope of liability (proximate cause), unless the court
determines that the ordinary duty of reasonable care is inapplicable. (note: Restatement
doesn’t like the term proximate cause, they use scope of liability).
b. An actor’s liability is limited to those harms that result from the risks that made the
actor’s conduct tortious.
c. 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.
2. What if the type of harm was unforeseeable?
a. Majority view – There is no proximate cause.
i. Wagon Mound – This was the case where a welding spark hit a rag in the water,
and the oil in the water ignited. Court found that the ignition of the oil was not
a fact which could be reasonably known by Overseas. A negligent act can he
held liable only for such injury as could be reasonably expected to happen as a
3.
4.
5.
6.
consequence, and not for all injury which does happen even if as a direct
consequence of the act.
b. Minority view – is proximate cause if direct
i. Polemis – see above.
What if the plaintiff who suffered the harm was unforeseeable?
a. Consensus: plaintiff’s case will fail
i. Palsgraf – dropping firework package at train station. Because Palsgraf was not
a foreseeable plaintiff to be hurt by the dropping of the package, it was not
reasonable to hold that the defendant’s negligence was the cause of the
passenger’s injuries. The explosion was the proximate cause of the injury and
the railroad could not have reasonably expected such a disaster.
b. Majority: reason for the failure is lack of proximate cause
c. Minority: Cardozo, who believed the reason for failure was because the defendant did
not owe a duty of reasonable care to the plaintiff.
d. Wagner v. International Railway – cousin saving cousin who fell out of a train door over
a bridge. The court ruled the rescuer was foreseeable. “Danger invites rescue.”
What if the extent of harm was unforeseeable?
a. Plaintiff can still prove proximate cause.
b. Eggshell plaintiff/thin-skull plaintiff rule
i. Restatement: When an actor’s tortious conduct causes harm to a person that,
because of a preexisting physical or mental condition or other characteristics of
the person, is of a greater magnitude or different type than might reasonably
be expected, the actor is nevertheless subject to liability for all such harm to
the person.
c. Because this is very plaintiff friendly, plaintiffs like to argue that if something about a
case is unforeseeable, it is merely the extent of harm. (Because it would come out in
their favor).
i. Stoleson – Although the plaintiff lost her case because she failed but-for cause,
the Court noted that the eggshell doctrine rule applies, in that a tortfeasor is
liable for aggravation of the injury he inflicts, even aggravation brought about
by the treatment of the injury of a third party.
What if the manner in which the harm happened was unforeseeable?
a. Plaintiff can still prove proximate cause.
i. Hughes – boy burned by explosion of kerosene lamp
b. Because this is also plaintiff friendly, plaintiffs like to argue that if something about a
case is unforeseeable, it is the extent or manner in which it happened (because it would
come out in their favor).
When will an intervening cause destroy proximate cause?
a. When the intervening cause was unforeseeable. (can be a third party or a natural force).
i. If it is unforeseeable intervening cause, it becomes a superseding cause.
b. Restatement: When a force of nature or an independent act is also a factual cause of
harm, an actor’s liability is limited to those harms that result from the risks that made
the actor’s conduct tortious.
c. Marshall v. Nugent – Truck driver coming around corner caused Chevy to run off road.
Passenger of Chevy got out to warn traffic and was hit. This action by the passenger was
foreseeable interference so truck driver was still liable.
d. Herman v. Markham Air Rifle Co. – Saleswoman got shot in the eye from a customer
testing an air rifle is suing the manufacturer. It was foreseeable interference by the
customer so the manufacturer was still liable.
e. Derdiarian v. Felix Contracting Corp. – Man had a seizure and crashed into a worksite
that wasn’t properly safeguarded with his vehicle. It was foreseeable interference so the
construction company was still liable.
f. McLaughlin v. Mine Safety Appliances Company – Fireman handed heat packets to nurse
and didn’t warn her, and plaintiff was severely burned. Plaintiff suing manufacturers,
but because it was unforeseeable the fireman would act that way, the fireman was a
superseding cause and the case was remanded for a new trial.
g. Watson – if what really happened was the guy threw the match intentionally, then that
action was unforeseeable, and defendant was not liable.
h.
4.
Brauer v. New York Central & H. R.R. Co. – It was foreseeable thieves would steal stuff
off the truck after a collision, so defendant railroad was still liable.
Damages
a. There are only compensatory damages for negligence. Generally, no punitive because the negligence was not
intentional, so why would we punish? Damage will not be presumed, so nominal damages are not available in an
action in negligence.
Defenses to Negligence
• Contributory & Comparative Negligence
o Negligence definition applies to negligence of a defendant and contributory negligence.
▪ Types
• Contributory Negligence – traditional doctrine; any negligence by plaintiff means that plaintiff
loses negligence case; now only used in four states.
o Butterfield v. Forrester – case where plaintiff was riding a horse and tripped over a pole
that was out in the street. Plaintiff was contributorily negligent by riding very hard so he
was barred from recovery.
• Comparative Negligence (Comparative Fault) – an approach that does not necessarily throw
plaintiff’s case out for contributory negligence
o Can be “pure:” even 99% fault by plaintiff does not bar recovery
o Or can bar recovery if plaintiff’s fault is greater than or equal to 50%
▪ If case not barred, reduce recovery by percentage of plaintiff’s fault.
o Stehlik v. Rhoads – owners of ATV couldn’t be held liable for adult guest not wearing a
helmet when riding their ATV.
o Restatement Section 7 (pg. 175): Plaintiff’s negligence (or the negligence of another
person for whose negligence the plaintiff is responsible) that is a legal cause of an
indivisible injury to the plaintiff reduces the plaintiff’s recovery in proportion to the
share of responsibility the factfinder assigns to the plaintiff (or other person for whose
negligence the plaintiff is responsible).
o
▪ Last clear chance doctrine
• Defense for defendant fails
• If defendant had last clear chance to avoid accident, ignore plaintiff’s early contributory
negligence
• Traditionally, a way to negate harsh effect of contributory negligence
o Now gone in most states, but timing is still factor to consider in assigning percentages of
fault
▪ Mitigation
• Can a plaintiff be at fault for failing to reasonably mitigate damages before an accident? (i.e.
failing to use a seatbelt)
o Traditionally: no, that rule protected plaintiffs from harsh effect of contributory
negligence (similar to last clear chance)
o Now: usually yes, though some states have statutes saying no for failing to use seatbelt
• What if the plaintiff fails to reasonably mitigate its damages after an accident?
o If the harm caused by the defendant and the plaintiff’s failure to mitigate cannot be
separated:
▪ Apply normal contributory negligence/comparative fault
o If harm defendant caused can be separated from plaintiff’s failure to mitigate
▪ Majority: defendant liable only for original harm
▪ Minority: defendant also can partially liable for harm from plaintiff’s failure to
mitigate (because they started the harm in the first place)
o Restatement Section 8 (pg. 179): Factors for assigning percentages of responsibility to each person whole legal
responsibility has been established include:
▪ (a) the nature of the person’s risk creating conduct, including any awareness or indifference with respect
to the risks created by the conduct and any intent with respect to the harm created by the conduct; and
▪ (b) the strength of the causal connection between the person’s risk-creating conduct and the harm.
o Restatement section 3 (pg. 171): Plaintiff’s negligence is defined by the applicable standard for a defendant’s
negligence. Special ameliorative doctrines for defining plaintiff’s negligence are abolished.
Plaintiff and defendant drive on opposite sides of a two-lane highway towards each other. Both are speeding and swerving
back and forth over the center line. As they near each other, both swerve sharply away from the center. As a result, plaintiff
crashes into a pole on the side of the road, incurring $10,000 in damages. Defendant also crashes into a pole, incurring
$10,000 in damages. After plaintiff sues defendant, defendant counterclaims against plaintiff. In what amount would each
party receive judgment under the following findings of fault by the jury?
•
Plaintiff: 50%
Defendant: 50%
Contributory
Plaintiff - $0
Defendant - $0
Comparative 50%
Plaintiff – $0
Defendant - $0
Comparative 51%
Plaintiff – $5k
Defendant - $5k
Pure Comparative
Plaintiff – $5k
Defendant - $5k
Plaintiff: 10%
Defendant: 90%
Plaintiff - $0
Defendant - $0
Plaintiff – $9k
Defendant - $0
Plaintiff – $9k
Defendant - $0
Plaintiff – $9k
Defendant - $1k
Plaintiff: 60%
Defendant: 40%
Plaintiff - $0
Defendant - $0
Plaintiff – $0
Defendant - $6k
Plaintiff – $0
Defendant - $6k
Plaintiff – $4k
Defendant - $6k
Assumption of Risk
o Express Assumption of Risk
▪ Total bar to plaintiff’s suit
▪ Restatement section 2 (pg. 169): When permitted by contract law, substantive law governing the claim,
and applicable rules of construction, a contract between the plaintiff and another person absolving the
person from liability for future harm bars the plaintiff’s recovery from that person for the harm. Unlike a
plaintiff’s negligence, a valid contractual limitation on liability does not provide an occasion for the
factfinder to assign a percentage of responsibility to any party or any other person.
▪ Wolf v. Ford – Girl who put her money in an investment firm waived her rights to sue for what otherwise
could be negligence.
o Implied Primary
▪ Because danger is open and obvious, defendant did not breach a duty (prima facie case fails).
▪ Murphy v. Steeplechase Amusement Co. – guy who broke his kneecap on the flopper. Court ruled the risk
of falling from the belt was foreseeable and the plaintiff assumed that risk when he took part in
defendant’s attraction.
o Implied Secondary
▪ Plaintiff was contributorily negligent in voluntarily encountering known risk (affirmative defense) – apply
applicable system
▪ Majority – merge secondary implied assumption of risk with contributory/comparative negligence
▪ Davenport v. Cotton Hope – man falling down stairs due to lack of flood light. The court stated that even if
the injured party assumed the risk of injury, he would not be barred from recovery unless his negligence
exceeded the defendant's negligence. Therefore, a plaintiff was not barred from recovery by the doctrine
of assumption of risk unless the degree of fault arising therefrom was greater than the negligence of the
defendant.
o Deciding on what is primary vs. what is secondary
▪ Primary – what the defendant was doing was reasonable. If you didn’t breach a duty, you were acting
reasonably. Some risk is usually involved, but generally speaking, the risk is reasonable. The risks or
dangers in the situation are open and obvious and reasonable.
▪ Secondary – some risks may be open and obvious, but are still unreasonable. (i.e. you notice a taxi driver
is driving drunk. Taxi driver is unreasonable and has breached a duty, but we still need to calculate the
percentage of the plaintiff who assumed the risk.)
Joint and Several Liability
• Joint and Several Liability: Plaintiff gets judgement against multiple defendants and each judgement is for full amount that
plaintiff is entitled to (after taking into account any fault of plaintiff)
o Allows plaintiff to have options in collecting, protecting plaintiff from risk of defendant’s insolvency
o Plaintiff may not collect more than the amount it is entitled to.
o Carolina, C. & O. Ry. – Railroad and lumber company had a hand in the destruction of the plaintiff’s land. Court
ruled the plaintiff could sue the railroad company for the full damages. Where there are several concurrent
negligent causes, the effects of which are not separable, though due to independent authors, either of which is
sufficient to produce the entire loss, all are jointly and severally liable for the entire loss.
•
•
•
•
•
•
Several Liability: Each plaintiff is liable only for its percentage share of plaintiff’s injury (even if injury is theoretically
indivisible)
o This means that if any defendant is insolvent, plaintiff will not get full amount it is entitled to.
Distinction between contributory negligence/comparative fault & joint and several liability
o From Glas - In case it helps, let me one more time distinguish the questions we addressed in the assignment on
contributory negligence (CN) and comparative fault (CF) from the questions we addressed today. People often
wrongly assume that if a state has gone to CF (rather than traditional CN), it must have ditched JSL as well, but that
in fact is often not true; the two issues are distinct. In talking about CN/CF, we ask WHETHER a negligent P can
recover at all, and if so, HOW MUCH (total). In talking about JSL/SL, we ask WHICH D’s will have judgments against
them in WHAT AMOUNT. In essence, the CN/CF question is from the plaintiff’s perspective: how much can the
plaintiff get? The JSL/SL question is from the defendants’ perspective: how much of that amount will each
individual defendant be liable for? This question becomes crucial to the plaintiff as well if there is an insolvent
(“judgment-proof”) defendant, which there often is.
What situations can make multiple defendants liable for same injury?
o Indivisible Injury
▪ Traditional: joint and several liability
▪ Now: sometimes just several, or hybrid
o Concerted Action
▪ Joint and several liability
▪ Bierczynski v. Rogers – racing automobiles. Even the non-hitter could be held liable because the two
racers were acting “in concert”. What makes the in concert idea more interesting is that even in places
that have moved to several liability, tortfeasors acting in concert will be both held liable for the same
amount, on the theory that the defendants are inseparable.
o Enterprise liability
▪ Joint and several liability (shifts burden of proof on causation – defendants will smoke out the guilty one)
▪ Hall – blasting caps case. The manufacturers could have been held jointly liable because it was alleged
that they had actual knowledge through a jointly-sponsored trade association in which the manufacturers
delegated at least some functions of safety investigation and design to the industry. Court imposes joint
and several liability unless one of the six comes up with evidence to prove that one specific manufacturer
did it.
o Alternative liability
▪ Joint and several liability (shifts burden of proof on causation – defendants will smoke out the guilty one)
▪ Summers v. Tice – plaintiff shot in the eye and lip from a shotgun but cannot tell which defendant did it. (2
people shot). Both defendants were negligent in shooting at this quail, but plaintiff can’t prove but-for
cause by a preponderance of evidence because he is only at 50% for each. Court ends up shifting the
burden, saying it will be joint and several liability until one of the defendants comes up with information
that the other one did it.
▪ Courts limit alternative liability to 2 people.
o Market-share liability
▪ Liability based on percentage of market share
▪ Allows a plaintiff to establish a prima facie case against a group of product manufacturers for an injury
caused by a product, even when the plaintiff does not know from which defendant the product
originated.
o Vicarious liability
▪ Not usually called joint and several liability but same effect: employer fully liable (see below)
Restatement Section 10 (pg. 337): When, under applicable law, some persons are jointly and severally liable to an injured
person, the injured person may sue for and recover the full amount of recoverable damages from any jointly and severally
liable person.
Restatement Section 11 (pg. 338): When, under applicable law, a person is severally liable to an injured person for an
indivisible injury, the injured person may recover only the severally liable person’s comparative responsibility share of the
injured person’s damages.
Restatement Section 17 (pg. 346): If the independent tortious conduct of two or more persons is a legal cause of an
indivisible injury, the law of the applicable jurisdiction determines whether those persons are jointly and severally liable,
severally liable, or liable under some hybrid of joint and several liability.
Plaintiff is speeding on a two-lane highway. Defendant 1 and defendant 2 are speeding toward plaintiff (one is trying to pass
the other). Plaintiff crashes into a pole on the side of the road, incurring $10,000 in damages. Defendant 1 and Defendant 2
are unhurt. Plaintiff sues defendant 1 and defendant 2. In what amount would plaintiff receive judgement against each
defendant under the following findings of fault by the jury? What would be the effect of either defendant’s insolvency?
Plaintiff – 20%
Defendant 1
Defendant 2
Plaintiff result if
Plaintiff result if
D 1 – 60%
Judgement
Judgement
defendant 2 is
defendant 1 is
D 2- 20%
insolvent
insolvent
Pure Several
$6k
$2k
$6k
$2k
Part Several (50%) $8k
$2k
$8k
$2k
Joint & Several
$8k
$8k
$8k
$8k
Sharing burden of
$6k
$2k
$7.2k
$3.2 k
insolvency, but
(6k + .60(2k))
(2k + .2(6k))
joint and several if
plaintiff is without
fault.
P – 0%
D 1 – 60%
D 2 – 40%
Pure Several
Part Several (50%)
Joint & Several
Sharing burden of
insolvency, but
joint and several if
plaintiff is without
fault.
Defendant 1
Judgement
Defendant 2
Judgement
$6k
$10k
$10k
$10k
$4k
$4k
$10k
$10k
Plaintiff result if
defendant 2 is
insolvent
$6k
$10k
$10k
$10k
Plaintiff result if
defendant 1 is
insolvent
$4k
$4k
$10k
$10k
Vicarious Liability
• Liability based not on defendant’s fault but on defendant’s status
o Restatement section 7.05, pg. 256: (1) a principal who conducts an activity through an agent is subject to liability
for harm to a third party caused by the agent’s conduct if the harm was caused by the principal’s negligence in
selecting, training, retaining, supervising, or otherwise controlling the agent. (2) When a principal has a special
relationship with another person, the principal owes that person a duty of reasonable care with regard to risks
arising out of the relationship, including the risk that agents of the principal will harm the person with whom the
principal has such a special relationship.
• Most common type is respondeat superior
o Respondeat Superior: an employer is liable for negligence of employee committed “within scope of employment”
▪ If the employee was on a frolic of their own – the employer is not liable.
▪ Restatement Section 2.04, pg. 258: An employer is subject to liability for torts committed by employees
while acting within the scope of their employment.
▪ Fruit v. Schreiner – salesman who was drinking at convention then hit someone on the road driving –
employers were liable because there was sufficient evidence to show the employee was acting within the
scope of his employment
▪ Wong-Leong – employers were liable for the employee who got drunk they got in a fatal car wreck which
killed multiple people because the party where the employee got drunk was within the scope of his
employment. Throwing the parties benefitted the employers because it boosted the morale of the
employees.
• Factors to determine whether someone is an “employee” or an “independent contractor”
o Extent of control by “master” over details of work
o Who supplies instrumentalities/tools
o Where work is done
o Length of time of relationship
o Whether paid by time or by completed job
o Whether work is part of master’s regular business
•
•
The big idea about vicarious liability is that, as we discussed, the defendant can be without fault. Don’t forget, though, that
an employer can also be directly liable (they did do something wrong) when an employee commits a tort. The plaintiff only
needs one successful theory to win a case.
o Wong-Leong – plaintiff sued also on theory of direct liability (because the employer was failing to control
employees on the job) Court didn’t buy this, but the employers were still liable on theory of vicarious liability.
What if employee commits an intentional tort?
o Courts look at same factors, but it's more narrow. When looking at negligence of employee, look at the activity in
general if it benefitted the employer. When talking about intentional tort - you're going to have to show that the
tortious aspect was benefitting the employer.
▪ Example - collections agencies. Sometimes employees will commit intentional torts for collecting money
(like harassing), and the employers are liable.
The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of, and within
the increased risk caused by, his acts. An indirect cause case is one where the facts indicate that a force came into motion after the
time of defendant's negligent act and combined with the negligent act to cause injury to the plaintiff. Whether an intervening force
will cut off the defendant's liability for the plaintiff's injury and be deemed superseding is determined by foreseeability.
A prima facie case for negligence consists of: a duty on the part of the defendant to conform to a specific standard of conduct for the
protection of the plaintiff against an unreasonable risk of injury; breach of such duty by the defendant; that such breach is the actual
and proximate cause of the plaintiff’s injury; and damage to the plaintiff’s person or property. No duty is imposed upon a person to
take precautions against events that cannot reasonably be foreseen.