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Torts Outline

1. Tort Law: Aims, Approaches, and Processes....
Torts are wrongs recognized by the law to hold wrongdoers liable for their wrongdoing
-Seven types of intentional torts: assault, battery, false imprisonment, trespass to land, trespass to
chattels, conversion, and intentional infliction of emotional distress.
-Goals of tort law: Morality, corrective justice, social utility, and public policy.
-Tort actions can protect against (1) physical damage to a person or property; (2) dignity and emotional
harm; (3) economic harm.
-Implementing Tort Law’s Goals with Damages AwardsDillon v. Frazer - if the judge finds the court’s award damages are grossly inadequate or excessive
the judge can remand the case to reassess damages. Grossly inadequate or excessive damages can
suggest improper considerations on part of the jury.
Nisi Additur – motion for a new trial as to damages only
Additur – Power of the judge to get the defendant to agree to pay an increased award of damages, as
opposed to holding another trial
Remittitur - The Judge’s power to deny a defendant’s motion for a new trial if the plaintiff remits part of
an excessively high award
Compensatory Damages - are anything that can be compensated for; medical expenses, lost wages,
anything to be repaid
Punitive Damages - meant to punish the plaintiff and deter similar conduct in the future
Attorney + Court Fees - In most cases the losing party is not required to pay the winning party’s
attorney’s fees as a line-item, unless a special statute says otherwise
Collateral Source Rule - Payments such as those from insurance or third parties are irrelevant to the
jury’s damages award against the defendant
Extended Liability Principle - contends that a person who commits an intentional tort, at least if it
involves conscious wrongdoing, is liable for all the damages caused, not merely those intended or
foreseeable. (pg. 43)
Vicarious Liability is a situation in which one party is held responsible for the unlawful actions of a third
-The Role of FaultVan Camp v. McAfoos - if fault is not admitted, the plaintiff must allege a particular type of fault
(intentional, negligent, reckless)
Strict Liability - is liability without fault e.g., Damages from animals owned or possessed,
abnormally dangerous acts, and product liability
Vicarious Liability - a situation in which one party is held responsible for the unlawful actio ns of a
third party. E.g., an employer. Respondeat Superior
Sine qua non - means, "Without (something), (something else) won't be possible".
Respondeat Superior - A legal doctrine that holds an employer or principal legally responsible for
the wrongful acts of an employee or agent, if such acts occur within the scope of the employment
or agency.
2. Reading Torts and Understanding Trial Procedure....
-Looking for Facts, Rules, and ReasonsDemurrer- is a defense asserting that even if all facts in the complaint are true; they’re insufficient
to establish a valid cause of action; often recognized as motion to dismiss
Prima Facie Case - a case that appears good/viable at face value
-Procedures at Trial1. Complaint filed by the plaintiff alleging facts and cause of action
2. Morion to Dismiss* filed by the defendant alleging the facts (even if true) don’t suggest a
valid legal claim prima facie. Rule 12(b)(6) under Federal Rules for Civil Procedure.
3. Answer is filed by the defendant denying alleged facts and asserting a defense
4. Discovery consists of fact finding through depositions, requests for documents, and records
5. Motion for Summary Judgement* is the motion to dismiss and assumes all the facts in the
complaint are true and argues that even so, the complaint fails to show a good legal claim.
The defendant shows that (1) there is no real dispute about the important facts and (2) on
the undisputed facts the law compels judgment for the defendant. If the defendant can
prove these elements summary judgment will be granted.
6. Pretrial Briefs and Motions in Limine are filed by each party asking the judge to shape the
trial in a particular way. Can request the judge not admit certain facts or evidence
7. Objections to and Offers of Evidence can be presented to the judge by either party either
before or during the trial
8. Trial includes testimony by the parties and witnesses and presentation of evidence
9. Motion for Directed Verdict* which is also known as a Motion for Judgement as a Matter
of Law in federal courts. It contends that the proof offered by the plaintiff is legally
insufficient to warrant a jury's verdict for the plaintiff. It is like Summary Judgement, but it
is filed after trial and is based on the evidence heard at trial
10. Jury Instructions and Objections the Judge’s instructions must accurately state the law.
Legal rules are left to the judge, and fact finding is left to the jury.
11. Jury Verdict
12. J.N.O.V Motion* a renewed motion for Judgement as a Matter of Law. This motion again
asserts that the evidence is not legally sufficient. It’s a post-trial motion. The judge may
grant this after the jury has reached its verdict. N.O.V is Latin for non obsrante verdicto
which means notwithstanding the verdict.
13. Motion for New Trial* can be filed by either party if they believe the court made a serious
legal error in handling the case. If the Judge believes an error was made and could have
prejudiced the jury the motion should be granted. This can also be granted if the damages
awarded are grossly excessive or inadequate as noted in Dillon v. Frazer.
14. Appeals are when either party wants a higher court to review the determination and
examine any alleged errors. Torts can be appealed all the way up to SCOTUS , though it is
unusual for tort cases to get that far and be heard by them. Tort law is generally more
suited for state courts. The appellate court can affirm or reverse a lower court’s decision in
part or in whole, they can also remand the case to be heard again in the trial court.
3. Intentional Torts to Person or Property....
-IntentIntent is a subjective inquiry looking at what the defendant knew and what their purpose was.
Dual Intent – intent to make a bodily contact AND intent to harm or offend
Single Intent – Intent to make bodily contact
Dual intent requirement where applicable can be useful in helping a defendant who is either a
minor or mentally ill.
General Intent - when an actor has reasonable knowledge of a consequence.
knew with substantial certainty that Garratt would fall. Garratt v. Dailey
Specific Intent - when an actor specifically intends for the outcome. Ranson intended to kill the animal,
he had specific intent. He is not absolved for mistaking the animal. Ranson v. Kitner
Transferred Intent - when an actor intends an action and does so with unreasonable force but
afflicts another party, intent is transferred, and the actor is liable. Smith threw the stick at Byron
but struck Talmage instead. The intent was transferred. (Talmage v. Smith)
Commits a different tort against that person
Commits that same tort as intended but against a different person
Commits a different tort against a different person.
Intent v. Negligence - when an actor cannot predict the outcome with reasonable certainty, it
cannot be considered intentional. Knowledge or appreciation of a risk is short of substantial
certainty. Negligence cannot be intentional. Spivey v. Battaglia
Negligence v. Recklessness- recklessness requires a conscious choice of course of action either
with knowledge of the serious danger to others involved in it OR with knowledge of facts which
would disclose this to any reasonable person and the actor must recognize that his conduct
involves a risk substantially greater than that which is necessary to make his conduct negligent.
(pg. 35)
White v. Muniz - Where dual intent is required for a battery tort, the plaintiff needs to prove that
the defendant had both intended to make contact AND intent to harm or offend. The jury must
examine the defendant’s intent subjectively to interpret what the defendant was thinking at the
time of the contact to establish whether they intended the contact and appreciated the
Garratt v. Dailey - Battery is the intentional infliction of a harmful bodily contact upon another. If
the actor acts with reasonable knowledge that a certain act could produce a certain effect, then
the action is intentional.
Minors and the Mentally Ill - can be found to form the requisite intent and can thereby be held
liable for the intentional torts they commit. No requisite age where minors cannot be held liable.
Parent Liability - most states have statutes allowing parents/guardians to be held liable for their
intentional torts, but they are usually limited in two was, (1) the child’s tort must have been
committed willfully or wantonly; (2) the damages that may be obtained are limited. (pg. 36)
-BatteryElements: (1) Intent OR negligence AND (2) a harmful OR offensive contact, AND (3) a harmful or
offensive contact occurs
Snyder v. Turk - Battery is defined as intentional unconsented-to contact with another. Unless dual
intent is required, the defendant needs not intend the specific consequences. Intending
harmful/offensive contact is sufficient. Personal injury is not required.
Cohen v. Smith - Liability for battery emphasizes the plaintiff’s lack of consent to the touching,
regardless of the defendant's intent or if the contact would be objectively offensive. Even if the
contact isn’t harmful, or objectively offensive, if it is against a person’s consent, it can be a battery.
Applicable parts of a person’s self - battery can be extended to harmful/offensive contact with
something in someone’s hand or on their person. E.g., a plate, clothing, hat, etc. Fisher v.
Customary contact - in a crowded world there need not be consent for non-hostile touching. If a
consequence is not reasonably certain to occur, it is not an intended consequence, therefore, not
battery. Wallace v. Rosen
Hostility as a factor - Old common law from the UK, intentional touching in a hostile manner is
battery, even if the touching cannot be avoided. Cole v. Turner
Battery does not require physical harm - consider offensive/insulting contact. Even if there is no
physical damage or injury to their person, the defendant can still be liable. Negligence requires
damages. (pg. 32)
Nominal Damages - awarded to a plaintiff who has suffered harm or offense from the defendant,
no matter how trivial, a battery is actional, even if the damages only amount to a dollar.
Economic Damages - medical expenses, lost wages or earning capacity are recoverable upon proof.
Pain, Suffering, and Emotional Distress Damages - can be claimed for emotional distress suffered
as a consequence of the battery. There is no fixed measure or standard available to the trier of fact
in determining the measure of damages for pain and suffering.
Punitive Damages - in addition to compensatory damages the court can allow punitive damages to
punish the defendant for their wrongful conduct.
-AssaultElements: (1) Intent, and (2) apprehension/anticipation of an imminent harmful OR offensive
For the tort of assault, the victim must anticipate or expect (have an apprehension) of contact, and it is
not necessary that the defendant have the actual ability to carry out the threatened contact, so long as
the victim believes the defendant has the ability to do so.
Cullison v. Medley - Assault is found where one intends to cause a reasonable apprehension of
imminent harmful or offensive contact in another. Physical harm is not required, a defendant can
still be held liable.
There must be an unlawful, and intentional offer to touch the person in a rude or angry manner,
sufficient to create a well-founded fear of imminent battery.
Apprehension should not be confused with fear or intimidation. It is the anticipation of a contact.
Interference with one’s person is actionable and need not include actual physical contact so long as the
plaintiff reasonable anticipates a harmful or offensive contact. Western Union Telegraph Co. v. Hill
Words Alone can be insufficient. Future threats do not qualify.
-False ImprisonmentElements: (1) intentional confinement in a limited area, (2) without lawful privilege or consent, (3)
for an appreciable amount of time.
McCann v. Walmart - The threat of physical force, and/or a claim of lawful authority to restrain is
sufficient to satisfy the confinement requirement for false imprisonment. False assertion of legal
authority is significant in cases regarding false imprisonment.
Confinement by Threats or Duress - (1) Threats or demands, can be implicit or explicit, (2) assertion of
authority, and/or (3) duress of goods which involves the defendant taking something of the plaintiffs
and refusing to give it back as a way to prevent them from leaving.
False Imprisonment is a trespassory tort, so the plaintiff can recover damages even if they didn’t sustain
actual harm.
False Arrest - has the same rules and elements as false imprisonment
-Torts to Property...
-Trespass to LandElements: (1) plaintiff must prove ownership or possessory interest in the land, and (2) a tangible
invasion or intrusion or entry by the defendant onto said land, that (3) harms the plaintiff’s
Intentional Entry can include either direct or indirect contact. Digging beneath the surface or flying close
to the ground over someone’s property can qualify as trespass to land too.
Exception: when someone unintentionally enters a property to no fault of their own and refuses to leave
can still be liable for trespass.
Limited rights to enter are not permanent rights.
Even if the defendant was mistaken about the ownership of the land and wrongfully believed they had
permission to enter the land, they can still be held liable because they intended to enter the property.
Trespass v. Nuisance trespass is a tangible invasion whereas a nuisance is intangible. Trespass is the
invasion of a plaintiff’s interest/possession of land whereas a nuisance is an interference of their
enjoyment of the land.
A trespasser will be liable for at least nominal damages. Punitive damages may be awarded if the
trespasser acted maliciously. The trespasser is liable for damages directly resulting from their trespasser,
even if they never intended to harm and could not foresee the harm. Where damages are inadequate,
and the trespass is continuous or repeated, the judge may grant an injunction.
-Conversion of Chattels—TroverElements: intent and substantial dominion of someone else’s property.
Trover is an action to recover the value of personal property that has been wrongfully disposed of by
Whether the defendant is conscious of wrongdoing is irrelevant, they can still be liable.
Substantial Dominion is the exertion of substantial or extensive control over a chattel. Important factors
to consider (a) extent and duration of the control; (b) the defendant’s intent to assert a right to
property; (C) the harm done, and (d) the expense or inconvenience caused.
“Conversion would not apply where the intention is good, the duration brief, and the event harmless.”
Qualifying Property is evolving, to include cases of stocks, hard drives, and data
Serial Conversions - happens when someone unlawfully sells another person’s property. The seller and
buyer can both be sued, even if the buyer didn’t know or intend to purchase the stolen property. Both
can be sued but the plaintiff can only collect once.
Exception: is when the seller tricks the buyer into believing the sale is legitimate and legal by
providing a title to the buyer suggesting legitimacy.
Universal Commercial Code (UCC) provides that if goods are entrusted to the possession of a merchant
who deals in goods of that kind, the merchant has the legal power to transfer all the rights of the
Transferred Intent does not apply to conversion
The usual remedy for conversion is damages measured by the value of the chattel at the time of
conversion. In some cases, the courts have permitted the plaintiff to recover the highest market value of
the chattel that occurs within a reasonable time for a replacement.
-Trespass to ChattelsElements: Damage or interference to a plaintiff’s chattel. No actual damages required.
An actionable claim for trespass to chattels or personal property generally requires dispossession of the
property, impairment of condition, quality, or value of the property, loss of use of the property, or other
Unwanted emails could be considered a trespass to chattels
4. Defenses to Intentional Torts—Privileges....
These defenses supply a legal justification for the defendant’s actions, rendering them non-tortious.
-Self-Defense and Defense of OthersProvocation is generally insufficient to justify the use of self-defense.
A defendant’s privilege to use force in defense of themselves or others only extends as far as reasonably
necessary to prevent death or serious bodily harm.
The defendant who is attacked is usually not required to retreat- this can be especially true in Stand
Your Ground states
If the defendant saw the plaintiff attacking another person and reasonably believed that person needed
help, the defendant can be justified in defending the harmed person, even if the defendant was
Grimes v. Saban – A person is justified in using physical force to defend themselves from what they
reasonably believe to be the imminent use of unlawful force.
In a motion for summary judgment, a judge must evaluate all the facts in a light most favorable to the
unmoving party.
A summary judgement is inappropriate when there are issues as to the genuine material of facts.
-Defense and Repossession of Property13
Katko v. Briney - A property owner is not privileged to use force capable of death or serious injury in
defense against his property until or unless the intrusion threatens death or serious harm onto a person.
Property owners can forcibly resist a trespasser’s illegal entry. However, they cannot use deadly force to
prevent mere trespass or theft
The law will favor the safety of persons over property.
Brown v. Martinez – The reach of the Castle Doctrine varies across jurisdictions
Excessive force is any force greater than the apparent threat
A reasonable mistake could justify a reasonable response
Any privilege to regain possession of chattels is limited to if the defendant acts in “fresh pursuit” of the
thief. Otherwise, they must use the courts to seek redress.
-Arrest and DetentionGortarez v. Smitty’s Super Value Inc., Shopkeeper Privilege allows a shopkeeper with (1) reasonable
cause to detain a suspected shoplifter in a (2) reasonable manner for a (3) reasonable amount of time so
that a suspect could be questioned, or the police called. All three elements are required for a valid
defense under the AZ statute.
The use of force is NEVER privileged unless the shopkeeper has already requested that the suspect
remain, and the suspect’s resistance made force necessary.
Shopkeepers have some ability to detain suspected shoplifters but what they can do is limited by the
situation, suspects are still to be treated fairly and reasonably.
Once a possession is lost the owner or shopkeeper cannot forcibly recapture it a week later
-The Special Case of Consent-
Was the consent valid?
i) Did the defendant stay within the boundaries of consent?
ii) Was the consent induced by fraud?
iii) Was the consent given under duress?
Consent is an agreement or willingness for something to occur, it can be explicit or implicit.
Implied consent is subjective. It is the jury’s job to determine if the action was within the scope
of consent given/implied.
When a demand or contact is unreasonable, silence should not be considered consent.
Consent can be an affirmative defense if it was valid and within the scope or privileged.
People without capacity are incapable of giving consent
Robins v. Harris - A jailer cannot use consent as an affirmative defense to their wrongdoing because it
has reasonably been found that a jailer holds both power and authority over prisoners. Defendants in a
position of authority or power will tend to be less successful in eliciting consent as a defense.
Kaplan v. Mamelak – A doctor who operates on a patient without that patient's consent (in a nonemergency situation) commits a battery. Further, if a doctor does an operation that is substantially
different from the procedure consented to, it is a battery.
Competence to consent (or refuse consent) should be measured by the plaintiff’s ability to understand
the condition, nature, and effect of the proposed treatment or its rejection.
If consent is given as a result of false information, it may be considered invalid or fraudulent
Consent can be revoked at any time by communicating the revocation to the defendant
Consent to crime is inconsistent - some courts have held that consent to a crime is invalid while others
have held that the plaintiff’s consent bars the tort claim
-Public and Private NecessitySurocco v. Geary - A person or party who destroys the property of another will not be liable for it if they
did so in good faith and out of public necessity. 5th amendment didn’t apply either because the federal
government had not taken Surocco’s property. Since this case, city mayors are now considered to be
state actors for constitutional purposes, and the fifth amendment’s Takings Clause has been
incorporated into the states.
The public necessity privilege protects public officials and private citizens who act in the public’s interest
so long as they reasonably believed the action was necessary and the action taken was reasonable to
the need.
Some states have held that police destruction or seizure of property is not a constitutional “taking.”
Public or private necessity can be an affirmative defense for trespass
Vincent v. Lake Erie Transportation Co. - A defendant is liable for the damage to another’s property
when acting out of private necessity.
The difference between private and public necessity is significant.
It may not be held that an intentional killing to save a greater number of lives is not a privileged act
PART THREE: The Prima Facie Case for Negligence
5. Element of Duty
Elements: (1) Did the defendant have a duty owed to the plaintiff? (2) Did the defendant negligently
breach that duty? (3) Did the plaintiff suffer actual damage? (4) Was the defendant’s negligence a
factual cause of the plaintiff’s negligence? (5) Was the defendant’s negligence a “proximate cause” of
the plaintiff's damage, or is the damage within the “scope of liability”?
If the plaintiff fails to prove the requisite elements, they cannot recover.
Negligence may be any conduct that creates an unreasonable risk of harm to others
Duty is a question for the judge
A defendant may not owe any duty to the plaintiff.
In negligence cases a duty is owed the standard of care to be applied is ordinarily reasonable care under
the same circumstances.
Stewart v. Motts - The care deployed by a reasonable person must be proportionate to the danger of
the activity and/or instrument. The reasonableness of conduct standard is flexible calling for more care
the more dangerous a situation is, conversely, lower danger holds a lower standard of care.
The standard of reasonable care is consistent (reasonable and prudent), if the foreseeable danger is
high, a reasonable person would be expected to demonstrate a greater degree of care. This is the
orthodox view.
Posas v. Horton - Sudden-emergency doctrine jury instructions are only appropriate when the defendant
faced a true sudden emergency at no fault of their own.
Under the sudden-emergency doctrine, a person can avoid liability for negligence if they can prove that
they were faced with a sudden and unforeseeable emergency at no fault of their own and that a
reasonable person would have behaved similarly in the same emergency.
A true sudden emergency calls for extraordinary circumstances. The defendant’s reaction to the danger
must be practically instinctive or intuitive.
Some courts hold that separate emergency instructions should never be given; the orthodox reasonable
care standard is sufficient.
Shepard v. Gardner Wholesale – The standard of care for a physically disabled person is the same as for
someone with a similar disability. In other words, disabled people are not obligated to operate at a
higher standard of care because they’re disabled. This contrasts to holdings regarding mental disability.
Creasy v. Rusk - Adults with disabilities are generally held to the same standard of care as their ablebodied counterparts. An exception is afforded to incapacitated people who harm their caregivers when
the caregiver is aware of their condition and responsible for the patient.
It is important for a judge to consider and evaluate the policy implications of adopting a rule, prior to
formally adopting it.
Pros to adopting the rule that holds all mentally disabled people liable for he harms they do is that it
allocates risk to the party who caused the harm, incentivizes caretakers to prevent harm, eliminates the
potential of faking incompetence to avoid liability, and saves the court and jury the trouble of having to
determine the extent of a defendant’s disability
In determining a duty of care in this case the court considered the relationship, foreseeability of harm to
Creasy, and public policy concerns. As such they determined that putting responsibility on Rusk didn’t
seem reasonable given that Creasy was employed to care for him and knew of his aggressive tendencies.
Therefore, they concluded the Rusk didn’t owe Creasy a duty of care
A mentally disabled person who is involuntarily hospitalized does not owe a duty of care to his or her
As a matter of law, the defendant may be expected to take greater care in light of the plaintiff’s
Intoxication - Generally, an intoxicated person is held to the same standard of care as a sober person
under the same circumstances. If a sober person were found to be negligent, an intoxicated person
would be too.
Sudden Incapacitation – If a person’s alleged negligence is caused by a sudden physical incapacitation
that is not foreseeable, there should be no liability. The burden of proof for sudden incapacitation falls
on the defendant.
Contributory Negligence – If the plaintiff was found to be negligent also, it could reduce or bar the
defendant’s liability.
Hill v. Sparks - The standard of the reasonable man requires only a minimum of attention, perception,
memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk.
Your duty to exercise appropriate care is relevant to your knowledge of the risks AND experience
Stevens v. Veenstra - Being a student or beginner at a reasonably dangerous task does not lower the
standard of reasonable care in negligence when the activity is dangerous or an “adult” activity.
Generally, minors are held to the standard of care that other minors would reasonably be expected to
have. An exception is when the minor is using a type of motor vehicle, be it a boat, ATV, etc., and when
a minor is using firearms. In other words, if the minor is using “adult” things, they will be held to an
adult standard regarding negligence.
In Texas, children under 6 cannot be negligent
Plaintiffs only owe a duty to themselves (and thus comparatively to defendants) to use ordinary care not
to expose themselves to the danger that may arise from a defendant’s negligence.
However, the defendant’s duty is different from the plaintiff’s duty. (See, Civ. Code, § 1714(a).) For
instance, the defendant’s duty is to use reasonable care under the circumstances to prevent all
foreseeable injury to the plaintiff. The injuries need only be foreseeable and not specific.
Negligence per se.....
Negligence per se doctrine - A defendant in a tort action is negligent as matter of law if the conduct
violated a statute.
Absent admission of a statutory violation, it is up to the finders of fact to determine whether a party
violated a statute, in such case the burned of proof is on the plaintiff
Shibboleth – is a custom, principle, or belief distinguishing a particular class or group of people especially
a long standing one, regarded out dated or no longer important
Chaffin v. Brame - A person is only contributorily negligent if they fail to act as a reasonable and prudent
person would have acted under similar circumstances.
In some states a defendant may assert contributory negligence as a complete defense to a negligence
claim if the plaintiff’s own conduct was negligent and contributed to their own harm – North Carolina is
one of a few states that adheres to this doctrine
A person isn’t required to see obstacles that are invisible to a person exercising ordinary care.
Martin v. Herzog - An omission or failure to perform an act required by statute can constitute negligence
per see. Justice Cardoza contended that generally applicable laws are intended to protect all people and
a violation of such laws that causes harm is negligent
Negligence per se is negligence that applies as a matter of law, without requiring proof that the actor
breached a duty of care.
Contributory negligence bars a negligent plaintiff’s recovery completely.
Comparative negligence fault is fairly apportioned in instances of mutual negligence
Negligence per se is not applicable to all statutes, statutes that either (1) do not expressly provide for
civil liability or (2) cannot be readily interpreted as creating a private right of action
Statutes can supplement the usually common law standard of care, and violation of such a statute can
establish the elements of duty and breach.
Some states like California make violation of a statute some evidence of negligence that may be
considered by the jury, rather than allowing the statute to be the standard of care.
O’Guin v. Bingham County - A statutory duty of care will replace the reasonable person standard in a
negligence action only if the statute or regulation clearly defines the standard, the statute or regulation
is intended to prevent the type of harm caused and to protect a class of persons of whom the plaintiff is
a member, and the violation proximately caused the injury. This case illustrates how a statute or
regulation defining a standard of care can replace the ordinary-person standard used in common-law
Negligence per se replaces the typical duty of care head in common law when the duty is defined by
statute or regulation.
Negligence per se occurs when a statute or regulation clearly defines the required standard of conduct
AND the statute or regulation was intended to prevent the harm that occurred.
Once the plaintiff proves that the statute or regulation establishes duty AND the defendant has
breached that duty, they only need to prove the violation of the statute that caused the injury – no need
to apply common-law duty of care
Limitations - scope of intended persons and harm. The dissenting opinion in the above cases relies on
this- contending the statute wasn't intended to protect the boys or prohibit their activities that led to
their demise.
Does the statute create tort liability? Is it a violation of the statute negligence in and of itself? Who is
the statute intended to apply to? Is the violation of the statute directly or proximately related to the
harm? Was the plaintiff contributorily negligent?
If the court determines that the class protected by a statute is the public at large, the plaintiff will always
fit within it.
Getchell v. Lodge - A defendant’s statutory violation is excused when they acted reasonably in an
emergency they didn’t cause. Once a plaintiff shows that the defendant was negligent per se, the
burden of proof shifts to the defendant so that they may show their violation is excused.
Minors- courts have consistently held that a minor’s violation of a statute does not constitute proof of
negligence per se, but may in some cases be introduced as evidence of such negligence.
The only real defense is that the actor was not at fault, they acted reasonably and prudently under the
circumstances, but something happened beyond their control that caused them to unintentionally
violate a statute at no fault of their own. For example, a statute requires a person have good brakes, but
a manufacturer defect causes a defendant to break to fail and she hits another car she shouldn’t be
found negligent per se because the defect wasn’t her fault, and a reasonable and prudent person
wouldn’t have behaved any differently or known their new car had defective brakes.
6. Breach of Duty...
Worker’s compensation statutes proceed upon the theory that work-connected injuries may be
generally regarded as a part of the employer's cost of doing business.
Pipher v. Parsell - driver owes a duty of care to his passengers because it is foreseeable that passengers
may be injured if through inattention or otherwise, the driver involves the car in a collision. The court
expanded on the well-established principle that drivers (even teenage drivers) owe a duty of care to
their passengers and should avoid reasonably foreseeable risks on the road and from their own conduct
to include protecting passengers from the foreseeable misconduct of other passengers.
Majority Rule – that a driver owes a passenger a duty of care to prevent injuries resulting from careless
When a reasonable person in the same situation as the defendant would not foresee any danger, the
defendant is, “simply not negligent.”
When there is evidence to suggest that a risk was foreseeable, it becomes the jury’s duty to decide if the
defendant breached their duty of care.
Limones v. School District of Lee County - Whether a duty was breached is a factual question for the jury.
Reasonable care is not and should not be a fixed concept. Such a narrow definition of duty, a purely
legal question, slides too easily into breach, a factual matter for the jury.
Duty owed is a question of law for the judge
Breach of duty is a question for the jury.
“Foreseeable” is to means that harm is not only foreseeable, but also likely to occur, and as such calls for
added precautions. If the risk of harm was so low, a reasonable person wouldn’t take extra action to
prevent it because the risk of harm was low.
Indiana Consolidated Insurance Co. V. Mathew - In a negligence action, a person is held to the
‘reasonable person in like circumstances’ standard, which values human life over property and applies
even in the face of a sudden emergency not of the person’s own making.
Worker’s compensation statutes do not protect all workers. Statutes may exclude agricultural, domestic,
and causal employees.
“A conclusion that the burden of precautions would substantially exceed the loss such precautions could
prevent forecloses the possibility of recovery.” ???? Some case
Some courts reach their conclusions in terms of duty rather than breach
Bernier v. Boston Edison Co. - To avoid negligence, a manufacturer must consider the reasonably
foreseeable risks of injury created by a product’s use in its normal environment and design the product
to prevent an unreasonable risk of such injuries.
If a setting gives rise to reasonably foreseeable risks, the product’s design should include reasonable
efforts to present or minimize those risks.
If the product’s design alludes to reasonably foreseeable risks that may result in serious harm the
designer must give serious consideration to potential safety features, even if the likelihood of the risk
manifesting itself is low.
United States v. Carroll Towing Co. - Liability for negligence due to failure to take safety precautions
exists if the burden of taking such precautions is less than the probability of injury multiplied by the
gravity of any resulting injury, symbolized by B < PL = negligence liability.
B<PL if the burden is lower than the probability x possible injury, there’s negligence. Conversely, if the
Burden is greater than the probability x possible injury, the defendant is not negligent.
Reasonable care often requires the consideration of unlikely but serious consequences
Liability of one person does not necessarily exclude the liability of another.
Thoma v. Cracker Barrel Old Country Store, Inc. - To prove negligence in a premises liability case, the
plaintiff must show that the defendant either caused a dangerous condition or had actual or
constructive notice of the dangerous condition.
This case goes to show that constructive notice can be proved by showing that a condition had existed
for so long that a reasonable defendant would’ve detected and remedied it.
Slip and fall in an establishment:
The owner has a duty to keep the premises safe for patrons and ameliorating dangerous conditions.
Wal-Mart Stores v. Wright - In a negligence action, the appropriate standard to be applied to a
defendant’s conduct is whether he objectively exhibited ordinary care that a reasonably prudent person
would have exercised under like circumstances, rather than a subjective standard held by the particular
This case clarifies that although a violation of company policies is admissible evidence, it isn’t admissible
to prove the applicable standard of care
A company’s policies don’t affect the objective ordinary-care standard applicable in negligence cases
and don’t necessarily reflect the company’s beliefs about ordinary care.
Santiago v. First Student Inc. - A plaintiff in a negligence case has the burden of presenting evidence
sufficient to demonstrate the existence of a material issue of fact relating to the defendant’s negligent
The fact that the plaintiff was injured in an accident does not provide an inference that the defendant
was negligent
1. A plaintiff must establish by competent evidence that the defendant was negligent
2. Proof of negligence can't’ be based solely on conjecture or speculation
The T.J. Hooper - A business may be liable for failing to adopt new technology, even if the industry has
not widely adopted it if the use of the technology constitutes reasonable prudence. Justice Hand Ruled:
If a readily available device is necessary to protect persons and property, a party that doesn’t utilize it
may be operating negligently. This case demonstrates that we expect business operations to use
currently available technology to protect their people and property.
Tech that is widely used – failure to use it may constitute negligence
Technology not widely used but still necessary may still constitute negligence if the defendants fail to
make use of it
Res Ipsa Loquitur
Res Ipsa Loquitur states that the occurrence of an accident implies negligence
1. Accident which produced injury which ordinarily would not happen in the absence of
2. Instrumentality or agent which caused accident was under exclusive control of
defendant; and
3. Circumstances indicated that the event not caused or contributed to by any act or
neglect on the part of injured person
Byrne v. Boadle - If a type of injury that does not typically occur without negligence does occur;
negligence is presumed from the mere fact of the occurrence.
Warren v. Jeffries - For the doctrine of res ipsa loquitur to apply, an accident must have been more likely
than not caused by the defendant’s negligence. It cannot be applied to a purely speculative claim of
Res ipsa loquitur doesn’t apply IF: (1) more than one inference could be drawn from the evidence; OR
(2) defendant’s negligence was a matter of conjecture; OR (3) the instrumentality that caused the
accident wasn’t under the defendant’s exclusive control.
Plaintiff can use a defendant’s instrumentality without having exclusive control over it- the jury must be
allowed to draw that inference or not
Right v Breen - A plaintiff must prove actual damages to succeed in a negligence claim.
Nominal damages are appropriate as a deterrent in intentional tort claims
However, nominal damages are inappropriate in cases with merely negligent conduct absent any proof
of injury.
Salinetro v. Nystrom - To succeed in a negligence claim, the plaintiff must prove that the harm would not
have occurred but for the defendant’s negligence.
Plaintiff must prove BOTH cause-in-fact AND proximate cause.
Further, to prove cause-in-fact: the plaintiff must prove that but for the negligence of the defendant the
plaintiff wouldn’t have been harmed.
Lasley v. Combined Transport Inc. - In deciding whether a defendant's act is a factual cause of a plaintiff's
harm, the effect of the defendant's conduct, and not whether that conduct fell below the expected
standard of care, is the relevant consideration.
Asserting factual cause doesn’t involve determining if each defendant’s conduct could’ve separately
caused the harm, rather it involves determining if each defendant’s act was a substantial factor in the
chain of events resulting in the plaintiff’s injury.
What is substantial factor test? Pg 189
But-for Causation
Hale v. Ostrow - It’s not necessary that the defendant’s act be the sole cause of the plaintiff’s injury, only
that it be a cause. So long as the defendant can prove causation in fact, and proximate cause, they can
have a viable claim.
Negligence requires:
Proof of a duty to care
Breach of that duty
An injury
Breach was the cause in fact and proximate or legal cause of the injury
Summers v. Tice - Under the doctrine of alternative liability, two independent tortfeasors may be held
jointly liable if it is impossible to tell which one caused the plaintiff's injuries, and the burden of proof
will shift to the defendants to either absolve themselves of liability or apportion the damages between
Both defendants were wrongdoers, and the law required them to provide proof to exonerate
themselves if they could, otherwise, they’re both liable.
The rule in this case made it easier for an injured plaintiff to recover from multiple negligent defendants
Mohr v. Grantham - In Washington, a plaintiff asserting a claim for medical negligence may show, in
place of the “but for” causation requirement, that the defendant’s action was a substantial factor in
causing the plaintiff’s injury.
Arguments against extending lost-chance doctrine:
Fear of overwhelming the court system
Potential negative effects on the healthcare industry
Desire to maintain traditional tort rules
Scope of Liability (Proximate Cause)
Landers v. East TX Salt Water Disposal - If an injury is indivisible, multiple defendants who acted
independently may be held jointly and severally liable for that injury
Indivisible injury is an injury caused by two or more defendants in such a way that it’s impossible to tell
which defendant caused what damage.
This case demonstrates that if it’s impossible to tell which defendant caused which portion of an injury,
the only fair approach is to let the plaintiff sue the defendants together.
Marcus v. Staubs - In West Virginia, a defendant whose negligence is a substantial factor in an injury is
not relieved from liability by the intervening acts of third persons, if those acts were reasonably
foreseeable by the defendant at the time of the negligent conduct.
Proximate Cause – the last negligent act contributing to an injury and without which the injury wouldn’t
have happened
Derdiarian v. Felix Contracting Corp. - An intervening act between the defendant’s negligence and the
plaintiff’s injuries will not break the causal connection and cut off liability if the intervening act was
reasonably foreseeable.
Key factor when assessing proximate cause is whether the intervening act was a foreseeable result of
the defendant’s negligence
Third-party negligence becomes a superseding cause ONLY when the act is extraordinary not
foreseeable, or completely independent of the defendant’s negligence