TORTS FALL 2021 ATTACK SHEET
Johnson, Ian
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Table of Contents
TORT PERSPECTIVES ........................................................................................................................................................2
BATTERY—INTENTIONAL TORT ...................................................................................................................................2
Prima Facie Case ......................................................................................................................................................... 2
ASSAULT—INTENTIONAL TORT....................................................................................................................................3
Prima Facie Case ......................................................................................................................................................... 3
INTENTIONAL INFLICTION OF MENTAL UPSET—INTENTIONAL TORT .............................................................4
Prima Facie Case ......................................................................................................................................................... 4
DEFENSES TO INTENTIONAL TORTS ............................................................................................................................4
Consent ........................................................................................................................................................................... 4
Self-Defense .................................................................................................................................................................. 4
Defense of Others ........................................................................................................................................................ 5
Defense of Property ................................................................................................................................................... 5
Necessity Defense ....................................................................................................................................................... 5
ACTUAL CAUSATION—INTENTIONAL TORTS AND NEGLIGENCE .........................................................................5
Basic Causation ............................................................................................................................................................ 5
Concurrent Causation................................................................................................................................................ 6
Successive Causation ................................................................................................................................................. 6
Alternative Liability ................................................................................................................................................... 6
Joint/Several Liability ............................................................................................................................................... 6
Market Share Liability............................................................................................................................................... 7
Vicarious Liability (Respondeat Superior) ........................................................................................................ 7
NEGLIGENCE ........................................................................................................................................................................7
Prima Facie Case ......................................................................................................................................................... 8
Duty.................................................................................................................................................................................. 8
Breach of Duty.............................................................................................................................................................. 8
Absence a General Duty to Rescue ...................................................................................................................... 11
Proximate Cause........................................................................................................................................................ 12
Mental and Emotional Upset (Negligence)....................................................................................................... 12
DEFENSES TO NEGLIGENCE ......................................................................................................................................... 13
Contributory Negligence/Fault ............................................................................................................................ 13
Assumption of Risk................................................................................................................................................... 13
Comparative Negligence/Fault ............................................................................................................................ 13
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STRICT LIABILITY ........................................................................................................................................................... 14
Maintaining Custody of Animals .......................................................................................................................... 14
Abnormally Dangerous Activities ....................................................................................................................... 14
PRODUCTS LIABILITY .................................................................................................................................................... 15
(2R)—Revolutionary (Strict Liability Approach) .......................................................................................... 15
(3R)—Functional Approach .................................................................................................................................. 15
Contributory Negligence ........................................................................................................................................ 15
Marketing Defects ..................................................................................................................................................... 16
DAMAGES .......................................................................................................................................................................... 16
Compensatory Damages ......................................................................................................................................... 17
EXAM TIPS
Multiple Choice
 If no jurisdiction listed, assume the majority jurisdiction!
Essay
 Discuss all approaches/jurisdictions when talking about the rule!
 Assume she doesn’t know anything
 Use your judgment when analyzing the problems. i.e., spend more time/write more about the
relevant issues.
 For rule in IRAC—Talk about each element in a separate paragraph and do the analysis and
conclusion within that paragraph.
TORT PERSPECTIVES
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Instrumentalist Perspective
o Maximize total welfare in society by deterring wasteful injury and accidents
o Associated with law and economic movement
Non-Instrumentalist Perspective
o Corrective Justice—Victim has right to recover from injuries from nonreciprocal risks
 Legal means to get back at wrongdoers
 Help avoid conflict outside of court
o Retributive Perspective—Punishment helps address sense of loss generated by anti-social
conduct
Civil Recourse Perspective
o Purpose of tort is to empower aggrieved individuals to seek redress against wrongdoers
 Private law/anti-instrumentalist
o Helps further liberal goals
BATTERY—INTENTIONAL TORT
Prima Facie Case
 (1) Intent to cause harmful or offensive contact with another; AND
 (2) Harmful or offensive contact directly or indirectly results
 (3) D’s actions are the actual and proximate the incident would not have occurred
 (4) D’s contact was unprivileged
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(1) Intent—Purpose, Desire, or Knowledge with Substantial Certainty (Garratt)
 Substantial Certainty—Constructive intent via knowledge w/ substantial certainty (Garratt)
 Single Intent—Only need to intend to make contact
 Dual Intent—Need to intend to make contact AND intend that contact to be harmful/offensive
 Vosburg—Only need to intend to make contact AND the contact was “unlawful”
 State Farm—Mere knowledge & appreciation of risk (short of substantial certainty) is not intent
 Transferred Intent—
o Intend to injure A  Intend to injure B
o Intend tort A  Intend tort B
(2) Harmful or Offensive Contact—
 Harmful Contacts—Detrimental physical changes to a person, object, or thing
o 2R—Bodily Harm (Loss to a person) and Ordinary Harm (Alteration)
o 3R—Any detrimental change in the physical condition of ones body
 No minimum amount of harm required
 Offensive Contacts—Contact that offends a reasonable sense of personal dignity
o 3R—A contact unwarranted by social usages
o Fisher—Intentionally offensively touching anything physically connected w/ P
o Leitchman—Smoke in face
o McCracken— “glass cage defense” liability not be imposed if liability violates public policy
by making actor avoid contact would be unduly burdensome
 Contact—
o Direct—D’s actions resulted in direct physical contact with P (Vosburg)
o Indirect—
 D’s actions cause P to come into harmful contact (Garratt, Leitchman)
 D’s actions result in physical contact with something closely related to P (Fisher)
 D’s contacts an object, which, sometime later, comes into contact w/ P (Stratton)
(3) Causation—P must prove both actual causation AND proximate causation
(4) Injury—
ASSAULT—INTENTIONAL TORT
Prima Facie Case
 (1) Intent to cause harmful/offensive contact OR an imminent apprehension of such contact
 (2) P is put in such imminent apprehension
(1) Intent—D must intend to cause the contact or imminent apprehension
 D not liable if no intent
 D not liable if the act involves unreasonable risk of causing imminent apprehension
(2) Imminent Apprehension—Reasonable person would have been put in imminent apprehension
 If a reasonable person would have been put in imminent apprehension, action for assault (Beach)
 Words alone are not enough to cause imminent apprehension (Minority- Read)
 Apprehension must be imminent! Not threats of harm at some indefinite future time
Assault v. Battery
 Cannot get double damages for assault and battery, they often merge
 If you prove intent for assault, you can prove intent for battery through transferred intent
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INTENTIONAL INFLICTION OF MENTAL UPSET—INTENTIONAL TORT
Prima Facie Case
 (1) D engages in extreme and outrageous conduct
 (2) Intentionally or recklessly causes severe emotional harm or at least in a reckless disregard
 (3) D’s conduct causes severe emotional harm (grief, shame, humiliation, anxiety, etc.)
 (4) There is proof of such harm—P’s physical consequences or in D’s conduct
(1) Extreme and Outrageous Conduct—So extreme it would make someone say, “that’s outrageous!”
 VERY high standard. Not often met
(2) Recklessly—Conduct that creates an unreasonable risk of harm to others. D is conscious of the risk.
Third Party—D also liable to members of that person’s immediate family present at the time of incident
DEFENSES TO INTENTIONAL TORTS
Consent —Willingness for the conduct to occur
 Even if P proves all elements of prima facie case, D can escape liability via consent affirmative def.
 Implied— (1) An emergency makes it necessary for D to make physical contact w/ P before P
could consent; and (2) D has no reason to believe the P would decline to consent if he could
 Manifestation—Consent can be inferred from P’s overt acts/manifestations of feelings (O’Brien)
 Criminal Conduct—You cannot consent to a crime (Majority)
 Policy—Reinforce the criminal process
o Okay if P has “full understanding of the nature and quality of the act” (Minority-Barton)
 Policy—Deters illegal activity by denying a tort reward to those injured
 Capacity—Sometimes P may not even be capable of consenting (Minority- Barton)
 Medical Context—Courts look to see if consent by patient was informed and uncoerced
o Negligence—When a doctor obtains consent BUT has breached a duty to adequately
inform the patient of risks, the patient has a cause of action in negligence
 The doctor can avoid liability by proving failure to explain was reasonable
o Bang—P must be fully informed of the details of the operation to consent
o Bang—Doctor needs explicit consent IF performing a nonemergency surgery
 Policy—Limitations on doctors/making them more liable will raise health costs
o Kennedy- Sort of Minority—Doctor may proceed w/o express consent if inconvenient to get
o Emergencies (2R)—No consent needed if (1) Emergency is necessary to prevent harm to
another before an opportunity to obtain consent; and (2) Doctor has no reason to believe
the other would not consent if he had the opportunity to
 Violent Activities—P does not impliedly consent to all forms of violent conduct when consenting
to play a violent game (Hackbart)
o Policy—Social policy does not dictate whether one’s action can be tried as tortious
 Fraud or Duress—D still needs intent element for the intentional tort even if consent was
procured by fraud or duress (State Farm)
o Consent procured by fraud or duress is not consent
Self-Defense—D must have a subjective belief there was imminent harmful/offensive contact AND that
belief must be reasonable (Courvoisier, subjective/objective test)
 Typically, self-defense is unavailable to the initial aggressor
 Proportionality—Response must be proportionate to threat, if the victim uses force not
reasonably proportionate to the initial aggressor’s force, the initial aggressor has right to SD
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Extent of Force Permissible—Actor not privileged to cause bodily harm in excess of what
believes is necessary for his protection
Excessive Force—If D uses excessive/unreasonable force, D responsible for amount above
necessary (objective test)
Non-Deadly Force Use—Still privileged even if actor can escape
Deadly Force Use—No privileged if actor believes he can reasonably escape w/ complete safety
Policy—
o Objective reasonableness inspires caution when actor think a/b harmful activity
 However, deliberation is unlikely to occur in the heat of the moment
o Justifiable privilege as if P had been in D’s shoes, the same outcome may have occurred
Defense of Others—(2R) Actor entitled to use reasonable force to protect 3rd party as long as he
reasonably believes intervention is necessary
 Mistakes—Courts are split as to whether privilege exists if intervenor mistakes the other’s right
to defend himself
 Policy—Objective reasonableness inspires caution/reflection in an actor before harmful activity
Defense of Property—
 Not Deadly Force or Serious Bodily Harm—Privilege to use reasonable force, not intending
death/serious bodily harm to prevent/stop another’s intrusion upon the actor’s land or chattels if
o (1) Intruder not privileged
o (2) Actor reasonably believes intrusion can be stopped only by force
o (3) Actor has told other to stop but they didn’t, or such request would be useless
 Deadly Force or Serious Bodily Harm—Only can use if actor believes intruder likely to cause
death or serious bodily harm
o Katko—Actor may not use deadly/serious bodily harm force except where there is also a
threat to personal safety that justifies self defense
 Policy—Law has always placed a higher value upon human safety than rights in property (Katko)
Necessity Defense—When circumstances NOT caused by P require the necessity to use others property
 Offensive Use—If you have necessity privilege and a party denies you that privilege, you can
recover damages (Ploof)
 Defensive Use—You may recover damages caused by another who is necessarily privileged to use
your property (Vincent)
 Private Necessity—There is a risk to A’s property & it can be reduced by sacrificing B’s property
o Qualified Privilege—Individual who uses necessity privilege must pay property owner
back for damages that their use of the property caused
 Public Necessity—Use of private property for the greater good of the public
o Absolute Privilege—Individual who uses necessity privilege doesn’t have for damages
ACTUAL CAUSATION—INTENTIONAL TORTS AND NEGLIGENCE
Basic Causation—P must show that D’s conduct “caused” the harm
 General Causation—Is D’s wrongful conduct capable of causing P’s harm?
o Circumstantial Evidence—May be used to establish causation (Hoyt)
o Hazardous Substance Exposure—More difficult to establish, issues of general
acceptance/testimony
 Specific Causation—Did D’s wrongful conduct specifically cause P’s injury?
o Circumstantial Evidence—May be used to establish causation (Hoyt)
o Statistical Odds—Statistical odds ALONE are not enough to establish causation (Smith)
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o Hazardous Substances Exposure—Difficult to establish
But-For Causation Test— “But for” D’s actions, would P have suffered the harm? (Perkins)
Concurrent Causation—When 2 or more causal agents concurrently cause harm to P AND each cause
alone would be insufficient to cause the injury
 USE SUBSTANTIAL FACTOR TEST
 Substantial Factor Test—D will be held liable if his conduct was a substantial factor in bringing
about P’s harm (Anderson)
o Asks—What DID happen?
 Natural Causes—
o (Majority, Anderson)—D cannot escape liability even if the other cause was a natural factor
o (Minority, Kingston)—D can escape liability if the other cause was a natural cause, but the
burden shifts to D to prove the natural cause would have caused the harm anyways
 Kingston—D is liable for all the damages even if another PC would have caused the damages
 “But-For” Test—Would allow 2 negligent acts to be innocent so don’t use here
Successive Causation—When 2 or more independent causes occur in close succession causing P’s harm
 USE “BUT FOR” TEST
 “But-For” Test—Actor is not liable if the other independent cause would’ve caused all the injury
independently (Dillon)
o D is only responsible for the aggravation of the injury (Dillon)
Alternative Liability—When all possible tortfeasors are present (usually not applied when MORE than
2), but the P cannot show which tortfeasor actually committed the act (Summers)
 Prima Facie Case—
o (1) All the D’s in the case are wrongdoers (they have to all be negligent)
o (2) No one other than the D’s caused the harm AND
o (3) Causation is from within the group
 Burden Shift—Burden of proof shifts to D’s to show they didn’t cause the harm
 (Minority, Ybarra)—P may recover from 5 parties when unidentifiable negligence is produced
from one of them
 Outcome—If both D’s cannot show they didn’t create indivisible harm, turns into J/S liability
 Policy—
o D’s have a better sense of who caused the harm
o P should not be denied recover b/c they can’t say who did it
o Conspiracy of silence (Ybarra)
Joint/Several Liability—Applicable when D’s acted in concert and when D’s created indivisible harm
 Prima Facie Case—
o (1) All D’s in case are wrongdoers (at least vicariously) AND
o (2) Each of them caused some amount of harm (in some way), but it is impossible to
establish how much harm each of them caused
 Situation 1—Where the D’s acted in concert to cause the harm
o All D’s responsible for harm caused by one of them
o Form of vicarious liability, Respondeat Superior
 Situation 2—Where D’s acted independently, each causing harm to P, but impossible to allocate
harm to either D’s conduct
 Outcome—D’s are each liable in full for P’s damages, although P can only get one full recovery
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Market Share Liability—If all D’s are in one group and if all P’s are in one group, then each D is
responsible for the portion of their damages
 Requirement Approaches—
o (1) Requires P to have a claim against a “substantial share (>50%)” of the market (Sindell)
o (2) Requires P only need one D. That D will be responsible for his % of the market (Collins)
 Burden Shift—Burden of proof shifts to D’s. If D can’t carry its burden, it’s liable for the % of
damages approximating its individual share of the relevant market
 Policy—
o Not widely used  hard to determine which company drug caused the harm
o Large # of victims so hard to get all D’s joined in one legal action
Vicarious Liability (Respondeat Superior)—Master liable for employee’s scope of employment actions
 Prima Facie Case—
o (1) The tortfeasor was a servant at the time of the harmful conduct AND
o (2) The servant was acting within the scope of employment
 Requirements— (1) Servant’s conduct is tortious; (2) Master has control/right to control the
servant’s harmful behavior; (3) Master empowered servant w/ the means/chance to cause harm
 Scope of Employment Factors—
o (1) If the misconduct occurred within the time and space of employment
o (2) If the employee was motivated, at least in part, by a concern for employer’s interests
o (3) The foreseeability of the wrongdoing
o (4) Courts may bypass these factors by saying the employer is directly liable because of his
own negligence in hiring, supervising, or monitoring the employee (Fisher)
 Employer Liability for Employee Intentional Tort Factors—
o (1) If the misconduct occurred within the time and space of employment
o (2) If the employee was motivated, at least in part, by a concern for employer’s interests
o (3) Foreseeability of wrongdoing
o (4) Court may bypass factors by saying employer was negligent in hiring, supervising, or
monitoring the employee (Fisher)
 Frolic & Detour—Generally, employee’s commute to and from work is not in employment scope
o Deviations—When employee goes out on trip for master’s purpose. Court will look to see
if the deviation was significant by looking at time and distance of detour
 Employer Nonliability of Independent Contractor—Generally, employer not liable for ICs
o Independent contractor factors— (1) If engaged in a distinct occupation or business; (2)
if skill required in occupation; (3) length of employment; (4) method of payment; (5) if
parties believe they are creating a master-servant relationship
o Exceptions— (1) Employer negligent as hirer, supervisor; (2) Nondelegable duty of
inherently dangerous activity (Taxi company is liable for bad repairs); (3) Ostensible agent
 Other Forms of Vicarious Liability—
o (1) Joint Enterprise—When 2 or more persons join together in enterprise having equal
control of each other’s conduct
o (2) Family Purpose Doctrine—Owner of family liable for negligent harm caused to others
by a family member while operating the automobile on a family purpose (pg. 22)
o (3) Aiding and Encouraging—A party who knowingly grants substantial encouragement or
aid to another committing a tort
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NEGLIGENCE
Prima Facie Case—
 (1) Duty—Duty of care D owed P (usually a reasonable person under the circumstances)
 (2) Breach—D breached the duty owed to P by failing to act in a reasonable manner under the
circumstances
 (3) Causation—D’s conduct was the BUT-FOR cause and PROXIMATE cause of P’s harm
 (4) Injury—P sustained actual loss or damages because of D’s conduct
 Duty and Breach in the given circumstances are determined by the judge, the jury finds if the facts
conform to the standards set by the judge
Duty—Ordinary care that a reasonable person would use under the circumstances (OBJECTIVE)(Brown)
Exceptions to Normal Standard—
 Professionals—Reasonably prudent professional (Doctor, Lawyer, Piolet) (Heath)
o Heath—Has to be a “Nexus” between profession and “professional”
 i.e., street racer not held to F1 standard
 (2R) Children—Judged by what might be expected of a child of similar age & experience
 (3R) Children—Kids engaging in dangerous conduct that is usually undertaken by adults are
judged by the duty standard applicable to adults. Kids under 5 incapable of negligence
o Physical Disabilities—Judged by what might be expected of a person w/ similar disability
o Mental Disabilities—Not factored into reasonable (Difficult to discern spectrum of mental)
Different Uses of Duty—
 Typical Sense—Whether D owed a standard of care at all
o Rodriguez—Foreseeability CANNOT be considered in determining if a duty exists
o Need to use policy-driven/analysis reasons unrelated to foreseeability
 “No-Breach-as-a-Matter-of-Law”—Court will not let negligence case go to jury if it thinks no
reasonable fact finder could conclude D failed to meet the ordinary standard of care
 Nexus—D’s injury-causing breach must be a breach specifically owed to the P
 Exemption—Policy-based limitations, as a matter of law, that certain classes of actors don’t owe
certain classes of victims the same duty owed by all to all
o Heath—D did not owe P a standard of care because she wasn’t in the plane
 Policy—
o Instrumentalist  Goal is to achieve optimal level of accident prevention so that the total
costs of accidents and accident prevention will be minimized
o Non-Instrumentalist  Goal is to achieve zero injury. Duty to “not harm others”
 When actors take conscious risks  Strict liability
 When actors take unconscious risks  “subjective best-efforts standard”
 Medical Context—When a doctor obtains consent BUT has breached a duty to adequately inform
the patient of risks, the patient has a cause of action in negligence
o The doctor can avoid liability by proving failure to explain was reasonable or that a
reasonable person in the patient’s position would have consented if fully informed
Breach of Duty—When a risk is unreasonable and therefore, D breached a duty
Start With B<PL
 Carroll Towing—A risk is unreasonable if the burden of precautions is less than injury
probability—Learned Hand Formula (B<PL)
o Burden of Precautions—Reasonable alternative course of action available that more likely
than not would have prevented, or at least mitigated the P’s injury
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Louisiana Power—B<PL is a global approach. What is the burden of taking all the precautions
against all the possibilities of harm? Not just the precautions to P
 Policy—Doesn’t encapsulate moral perspectives, favors large companies
Next, Look to Special Rules for Easier/Quicker Proof of Duty and Breach
 (1) Safety Statutes—An unexcused violation of a safety statute is negligence per se
o Requirements—
 (1) P’s injury needs to be within harm the statute is designed to prevent
 (2) P needs to be in the group of people the statute is designed to protect
o Safety Statute—Statute regulating conduct between 2 parties
o Licensing Statute—Statute regulating conduct between a party and the government
 Brown—Violation of licensing statute is NOT negligence per se
o Procedural Effect of Violation of Safety Statue —
 (Majority, Martin)—Unexcused violation of safety statute is negligence per se
 Exception—Unexcused violation may be excused if following the statute in
the given circumstances would contradict its intent (Tedla)
 (2R)—Excused Violations— (1) Violation is reasonable b/c of the actor’s
incapacity; (2) He neither knows nor should know of the occasion for the
compliance; (3) He is unable after reasonable diligence or care to comply;
(4) He is confronted by an emergency not due to his own misconduct; (5)
Compliance would involve a greater risk of harm to the actor or others
 (Majority, Vermont)—Unexcused violation of safety statute gives rise to the
PRESUMPTION of negligence that D can rebut by showing that a reasonable person
would have acted as D did
 (Minority, Arkansas)—Unexcused violation of safety statute is some evidence of
negligence (inference jurisdiction)
o Policy—Quicker proof of duty and breach = less time in court = less $
 (2) Custom—Unexcused violation of custom/accepted practice is SOME evidence of negligence
o Proving violation of custom much more difficult than proving violation of statute
o Custom provides aid to the jury on if D acted reasonably under the circumstances
o Trimarco—Evidence of failure to comply w/ industry custom is evidence of negligence, but
it is NOT conclusive
 When D conformed to custom  May establish ordinary care
 When D ignores custom  May establish liability
o TJ Hooper—Industry custom cannot be relied on to set standard of care
 There are precautions so imperative that even their universal discard cannot excuse
their omission
 Policy—New standard of care may just be lagging
o Helling—Courts may depart from ordinary higher professional standard of care
 What is usually done may be evidence of what ought to be done—but what ought to
be done is fixed by a standard of reasonable prudence
 (3) Res Ipsa Loquitor—The occurrence of an accident implies negligence
o Key use of RIL is to prevent the D from getting a directed verdict
o Policy—Not fair if P couldn’t recover b/c he couldn’t establish how D was negligent
o Marrero—P can use direct negligence and RIL, IF there is NOT all available evidence
 RIL cannot be used in cases w/ conflicting eyewitness testimonies
o Requirements—
 (1) D had exclusive control of the instrumentality which caused the harm
 (2) The accident does not normally happen in the absence of negligence
o Procedural Effect of RIL—
 (Majority)—Jury may infer negligence, but it is not required
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(Minority)—Jury has to find negligence IF D fails to rebut presumption
o Burden shifts to the D to show he wasn’t negligent
o Exclusive Control Element—
 Stricter Approach—
 D is not absolute insurer of P’s safety (Shutt, Humphrey)
 Shutt—If P has better access to evidence, more indicative of no negligence
 Humphrey—To use RIL, P must establish D’s exclusive control w/ respect to
all plausible causes
 Less Strict Approach—
 Boyer—If P has some access to evidence, does not dispense w/ RIL
 Escola—Sometimes, P need only negate all other possible sources of
negligence to establish D’s exclusive control
o Court can stretch TEMPORAL aspect of RIL
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Next, Special Relationships
 Landowners—The duty of a landowner depends on if the entrant’s status
o Duty Owed Scale (2R)—
 Reasonable Care—Invitee
 Intermediate Level of Care—Licensee  Children Trespassers 
Constant/Known Trespassers
 Avoid Wanton/Willful Conduct—Ordinary Trespassers
 Avoid Intentional Conduct—Trespassers Attempting Crime
 Invitee (2R)—
o Duty—Reasonable care under the circumstances
o Breach— (1) D knew or should have known the condition involved unreasonable risk; (2)
Should expect they won’t discover the danger or protect themselves from it; and (3) Fails
to exercise reasonable care to protect them against the danger
o Public Invitee Definition—
 Inducement to enter indicated the land is intended for public use
 Public member invited onto land for a purpose for which the land is held open to the
public
 Example—Playground with sign saying open for kids
o Business Visitor Definition—
 Person invited to enter land w/ purpose directly or indirectly connected w/
business dealings with the landowner
 Example—Mailman, Utility Workers, Landscape Crew
 Licensee (2R)—
o Duty—Lesser duty of care than invitees
o Breach— (1) D knew or has reason to know the nonobvious condition involved
unreasonable risk; (2) D fails to exercise reasonable care to make condition safe or warn of
risk; and (3) Licensee didn’t know or have reason to know of the condition and risk
o Licensee Definition—Person privileged to enter land b/c of landowner’s consent
 Example—Social Guest, Police, Firefighter, Solicitors, Users of Gov’t Property
 Trespasser—
o Duty (Unknown)—Avoid wanton and willful conduct causing harm (lowest duty)
o Exceptions— (1) Trespassers attempting crime; (2) Constant trespassers; (3) Known
trespassers; (4) Attractive nuisance doctrine
o (1) Trespassers attempting crime—Duty to avoid intentional injury
o (2) Constant/Known Trespassers—Duty to notify of ONLY artificial conditions on land
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o (3) Attractive Nuisance Doctrine—Dangerous conditions to children
 Landowner liable for injury of children trespassing caused by artificial condition if:
 (1) D knows of has reason to know children are likely to trespass; (2) D
knows/should know and realizes/should realize, the condition involves
unreasonable risk of death or serious bodily injury to such children; (3)
The children, due to their youth, do not discover the condition or realize the
risk; (4) Utility of the condition and burden of eliminating danger do not
outweigh the risk to children; and (5) D fails to exercise reasonable care to
eliminate the danger/protect the children (D needs to warn of actual danger)
 Exception—Not applicable if condition is obvious & child recognizes the danger
Modern Approach
o Rowland—Abolished traditional classifications of invitees, licensees, trespassers, & duties
o Question is—Whether in management of D’s property, he acted as a reasonable person
in view of the probability of injury to others? Status of P is not determinative.
o Majority Approach—Most courts have been in favor of a PARTIAL Rowland adoption
(3R)—Embraces Rowland
o A landowner owes a duty of reasonable care to entrants with regards to:
 (1) conduct by the landowner that creates risks to entrants
 (2) Artificial conditions that impose risk
 (3) Natural conditions that impose risk
o Flagrant Trespassers—Duty not to act in an intentional, willful, or wanton manner to
cause physical harm
 Exception—Landowner has duty of reasonable care for flagrant trespassers who
reasonable appear to be imperiled AND helpless or unable to protect themselves
Common Carries—Held to a higher standard of care than reasonable care (“utmost care”)
o Example—Planes, Buses, Cruise Ships, Ambulance, Ski Lift, Elevator, FedEx, NOT pedi-cab
o Policy—They are in a hazardous business w/ a dangerous nature, passengers totally
dependent on the carrier
Operators of Motor Vehicles—Generally, a duty of reasonable care
o Owners of automobiles not liable for torts committed by another driving the car (CL)
o Automobile Guest Statue—Lower standard of care owed to non-paying guests
Absence a General Duty to Rescue
 (2R)—No duty to rescue
 (3R)—No duty to rescue unless court finds affirmative action was required because of a special
relationship
 Exceptions—Situations where there is a duty to rescue
o Good Samaritan Statutes (MN, RI, VT)—Statutes that impose a duty to rescue in certain
circumstances
 Some states provide immunity against negligent rescues
 Not liable in civil damages unless the act is willfully or wantonly negligent
o Reliance—
 Erie Railroad—When actor has induced another to rely on a voluntary safety
precaution, there is a duty to uphold this precaution unless the actor gives warning
 Lacey—Duty to act with due care once an actor has undertaken rescue operations
 Long—D may be liable for an employee if D makes a promise to P and they rely on it
o D’s Instrumentality—
 Tubbs—Duty to assist when P’s initial injury results from an instrumentality under
D’s control
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 Imposes duty even if D is NOT negligent
 Automobile Guest Statute bars original injury recovery but not aggravation
o Special Relationships—Duty may be imposed when there is a special relationship
 Examples—Common Carries/Passenger; Innkeeper/Guest; Landowner/Land
Entrant; Parent/Child; School/Student; Landlord/Tenant; Employer/Employee
 Tarasoff—D’s who are in a special relationship (Psychiatrist-Patient) owe a duty of
reasonable care to either the person whose conduct needs to be controlled or the
person who the conduct is directed towards
 Duty arises when there is foreseeable harm to the P
 Dissent— (J. Clark)  Deter patients from getting treatment
Proximate Cause—Requires a sufficient relationship between D’s actions and the harm caused to P
 General Rule—D is liable for all harmful results that are the normal incidents of and within the
increased risk caused by his acts
 Proximate cause is usually a question for the jury
 Palsgraf—D liable if he owes a duty to P, breaches, & resulting harm was reasonably foreseeable
o Majority (Cardozo)—D owes duty to P if: D’s conduct creates an unreasonable,
foreseeable risk to P
o Dissent (Andrews)—Focus on proximate cause, P owes duty to everyone, did D’s
conduct create a foreseeable risk to P? Would a reasonable person have sought to minimize
or eliminate the risk?
 Proximate Cause Factors:
 (1) Substantial factor test; (2) Intervening causes; (3) If cause & effect too
attenuated; (4) If cause likely to produce harm; (5) Foreseeability; (6) If it
was a natural and continuous sequence; and (7) if it is remote in terms of
time and space
 Solomon—You can recover from original negligent party if you’re injured while rescuing someone
o Rescuers are foreseeable by negligent parties
 Firefighter’s Rule—No recovery for professional rescuers form injuries during their job
 Marshall—Proximate cause depends on some part if the situation has stabilized or not
o Time and space factor into whether a situation has stabilized
o Exact nature of harm need not be foreseeable, only “general nature” of the harm
 Criminal Conduct & Proximate Cause—
o Herrera—Negligent actor only owes a duty to those whose injuries are foreseeable
 If criminal conduct is a foreseeable risk, there is a duty of reasonable care
o Stahlecker—Efficient intervening cause (superseding force) breaks causation chain
 Generally, criminal conduct is an efficient intervening cause
 3 basic requirements for PC:
 (1) That w/o negligent action, the harm would not have occurred (but-for)
 (2) That the injury was the natural & probable result of the negligence
 (3) That there was no efficient intervening cause
 Statute Violations—
o Gorris—To establish PC via a statue, the statute’s purpose must pertain to the negligent
acts complained of
 (3R)— (1) Harm needs to be within risk designed to protect; (2) P need to be
within the group of people designed to protect
Mental and Emotional Upset (Negligence)
 When— (1) P put in danger of physical injury, but nothing happened; (2) P sees another hurt
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Requirements—If you are in the zone of danger and prove D, B, C, and I, you can recover
Bystander Rule—
o Bright-Line Jurisdiction—Uses Bystander Factors to See if You’re in Zone of Danger
 (1) Was P near the accident? (2) Did P suffer shock? (3) Was victim & P closely
related?
o Foreseeability Jurisdiction—More flexible rules
DEFENSES TO NEGLIGENCE
Contributory Negligence/Fault—Subjective Inquiry
 Rests on P’s failure to exercise the care of a reasonable man for his own protection (OBJECTIVE)
 Traditional Contributory Negligence—P’s contributory negligence is a complete bar
 (Minority, Butterfield)—P barred from recover if he was also negligent during the accident
 (2R) Approach to Contributory Negligence—
o Conduct that falls below the standard to which the P should conform to (reasonableness)
o P’s negligence is a PC of his injury
o Not a complete bar of recovery
o Not a defense to intentional torts
 Wrongful Death—Recovery is allowed only to the extent that the deceased could have recovered
had she lived
Assumption of Risk—Objective Inquiry
 Express Assumption of Risk—Agree by K to waive your right to bring a tort action
o Stelluti—Courts may waive negligence if P signs exculpatory clause AND it is not against
public policy
 Primary Assumption of Risk—A deficiency in P’s prima facie case
o Failure to prove breach of a duty of care
o NOT AN AFFIRMATIVE DEFENSE
 Secondary Assumption of Risk—When P voluntarily proceeds despite understanding the
specific risk of any caused by D’s acts
o Complete bar of recovery
o D owes duty to P, but the P voluntarily encounters a risk of injury caused by D’s breach
o AFFIRMATIVE DEFENSE (some jurisdictions have merged w/ contributory negligence)
o Meistrich—SAOR is not an independent defense  It merges with contributory negligence
o (2R)—SAOR is an independent defense  If P understands the risk, then P cannot recover
Comparative Negligence/Fault
 P’s % of negligence reduces his recovery by that % instead of completely barring recovery
o Most jurisdictions aggregate D’s fault (P=40%, D1=30%, D2=30%)
 Knight—SAOR is not a complete bar to recovery
 Pure Comparative Fault—P may recover until P reaches 100% of fault
 Modified Comparative Fault—2 Approaches
o (1) P may recover if his fault is less than D’s fault (D must be at least 51% negligent)
o (2) P may recover if his fault is not more than D’s fault (D can be 50% negligent, TX)
 Issues of Comparative Negligence/Fault
o Intentional Torts—Courts split on whether D can take advantage of comparative fault in
reduction in damages
 D liable for negligence if 3rd party intentionally injures P due to his negligence (J&S)
o Seatbelt Rule—If P doesn’t wear seatbelt, no recovery for D’s negligence in car crash
o Last Chance Doctrine—When D had the last chance to avoid the accident
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o Joint & Several Liability—Most jurisdictions have retained it
 If one D insolvent, other D picks up the orphan shares
Beneficiaries in Wrongful Death—A negligent beneficiary’s recovery would be reduced by his
fault, reducing the overall award granted to the estate
STRICT LIABILITY
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An actor whose conduct PROXIMATELY CAUSES harm to another is liable regardless of
whether reasonable care was exercised as long as the person injured did nothing,
voluntarily, or consciously to bring about the injury
Strict liability = liability without fault = D is complete insurer
Determination of strict liability standard is usually made by the court as a matter of law
Policy—Non-Reciprocal Risk By D
Maintaining Custody of Animals
 Livestock—Owner of livestock that intrudes on P’s land is strictly liable for intrusion & harm
done even if owner exercised the utmost care
o Some states require that the P must have adequate fencing if livestock is around
 Wild Animals—An owner of a wild animal is strictly liable for harm caused by the animal
o Wild Animal  Not widely domesticated animals
o Exception—Zookeepers are only liable for negligence
 Domestic Animals—Owner strictly liable if he knows or had reason to know the vicious
tendences of his animal
o Domestic Animals  Look to see if animal is domesticated
o One Bite Rule—Owner gets one “free” bite before put on notice unless it’s a vicious animal
 Some states have strict liability regardless
Abnormally Dangerous Activities
 Decision usually up to the court but 2 typical categories—Explosives and Toxic Waste
 P’s injury needs to arise from the abnormally dangerous activity
 D’s Possible Defenses— (1) Act of God (extraordinary natural event); (2) Contributory
Negligence; (3) Comparative Negligence; (4) SAOR
 Fletcher—Actor is strictly liable for unnatural use of land or anything he brings onto his land
likely to cause mischief
o If D uses land for natural use  Only liable for negligence
o Policy—Non-Reciprocal Risk—D taking risk and only one benefitting (unlike driving)
 Turner—Actor is not strictly liable for natural use of land
o Natural/Unnatural Test—Look at the location of the land
 Siegler—Courts may use (2R) factors ambiguously
o Most actors who handle explosives are strictly liable
 (2R)—Abnormally Dangerous Activities
o (1) If activity involves high degree of risk of harm; (2) If gravity of harm is likely to be
great; (3) If risk cannot be eliminated by exercise of reasonable care; (4) If activity is not a
matter of common usage; (5) If activity is inappropriate to the place where it is carried out;
(6) The value of the activity to the community
 (3R)—Abnormally Dangerous Activities
o An activity is abnormally dangerous if:
 (1) The activity creates a foreseeable and high risk of physical harm even when
reasonable care is exercised AND
 (2) The activity is not one of common usage
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PRODUCTS LIABILITY
 Policy—Better compensate injured P, Cost-spreading, Forces sellers to make good on implied
representations of the product, Encourages investment in product safety, Eases evidentiary
burden on P
 Can only be used against the commercial provider
 Need proximate cause, no privity requirement (K), strict liability
 Prima facie case— (1) D is a commercial supplier; (2) D produced or sold a defective product;
(3) Defective product is the actual and proximate cause of P’s injury; and (4) P suffered damage to
person or property
(2R)—Revolutionary (Strict Liability Approach)
 No specific categories
 One who sells any product in a defective condition unreasonably dangerous to the user/consumer
is subject to liability for physical harm thereby caused to the ultimate user/consumer or to his
property if: (1) Seller is engaged in the business of selling such a product; and (2) it is expected to
and does reach the user or consumer w/o substantial change in the condition in which it is sold
 Comparative Negligence—SAOR is a complete bar to recovery
 Manufacturing Defects—Defection condition unreasonably dangerous
o Must be dangerous to an extent beyond what an ordinary consumer would expect
 Design Defects—
o Defective condition unreasonably dangerous
o Troja—Risk-Utility Test (Wade Factors) (Implied B<PL)
 Also factors in reasonable alternative design
o Parish—Manifestly Unreasonable Exception
 Compare to “exploding cigar”
o Consumer Expectation Test—Must be dangerous to an extent beyond what an ordinary
consumer would expect
 Marketing Defects—Seller knows or should have known the risks
(3R)—Functional Approach
 Manufacturing Defects—Departs from the intended design
 Design Defects—
o When foreseeable risks of harm posed by the product could have been reduced/avoided
by adoption of reasonable alternative design by the seller, other distributor, or a
predecessor in the commercial chain of distribution
o Parish—Reasonable Alternative Design Factors
 A form of risk-utility analysis but more precise than 2R
 Manifestly Unreasonable Exception
o Rejects consumer expectation test (although it is factored into RAD)
 Marketing Defects—
o Defective when foreseeable risks of harm could have been reduced by adequate
instructions
Contributory Negligence (3R)
 Murray—Comparative causation can be used in strict liability when D’s fault product and P’s
negligence caused the injury
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Marketing Defects
 Sheckells—Product warnings need to inform users of specific risks they may reasonably
encounter, they cannot just provide a blanket statement for all possible danger
 Heeding Presumption—In causation cases, assumption is that victims would have read any
warning and acted as so to minimize the risk
(2R)—Special Liability of Seller of Product for Physical Harm to Consumer
 A seller of any product in a defective condition unreasonably dangerous to the user or his
property is liable for physical harm (proximate cause requirement) if
o (1) the seller is engaged in the business of selling such product, AND
o (2) it is expected to and does reach the seller unchanged in condition
(3R)—Seller/Distributor
 One sells a product when, in a commercial context, one transfer’s ownership thereto either for
use or consumption or for resale leading to ultimate use or consumption. Commercial product
sellers include, but are not limited to, manufacturers, wholesalers, and retailers.
 One otherwise distributes a product when, in a commercial transaction other than a sale, one
provides the product to another either for use or consumption or as a preliminary step leading to
ultimate use or consumption
(3R)—Definition of Product
 Tangible property that is commercially distributed for use or consumption. Other items such
as real property and electricity, are products when the context of their distribution and use of
tangible personal property that is appropriate to apply the rules in this restatement
 Services, even when provided commercially, are not products
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DAMAGES
Punitive Damages
 Takes into account D’s wealth  Result is P can get too much $
Compensatory Damages
 Tort law’s goal is to provide “fair” rather than “full” compensation for wrongs
 P must take reasonable steps to mitigate injuries to make full recovery
o Avoidable Consequences Rule—P generally cannot recover for consequences of the D’s
wrong that the P could have avoided by taking harm-reducing measures
 Example—Personal Property, Medical Expenses, Lost Earnings & Impairment of Earning Capacity,
P&S, Loss of Consortium
Medical Expenses
 Expense must be related to D’s conduct (Hospital bills, Mental health treatment, special car)
o Duty of care is owed to a fetus
 Collateral Source Doctrine—D’s requirement to pay damages is not reduced just b/c insurance
or another third party covers P’s medical expenses, lost wages, or other damages
o Not adopted in all states
o Policy—D should not escape liability b/c another party helps P
 Religious Views—Reasonable beliefs standard (reasonable Jehovah’s witness)
 (Minority, Coyne)—Gratuitous service rendered by third parties are not compensable. Results in
unjust enrichment of P
 Healy—Insurance payments to P are recoverable (if P pays consideration)
 Drinkwater—Collateral source money except for insurance payments are not recoverable
 Future costs of raising a child is not recoverable
Lost Earning and Impairment of Earning Capacity
 P needs to mitigate damages!
 P can recover for lost earnings up to the time of trial and decreased capacity to earn in the future
 Ruzzi—P’s future earnings are measured from his economic horizons, not his actual earnings
 (Original earning basis)(Period of time) – (Disabled earning capacity)(Period of time)
o Issues with adjusting for inflation, present value, taxes, interest on future investments
 Native Talents & Training
o Grayson—Native tales generally receive less damages b/c less probability they will make $
o Young people/kids Factors  Parents success, what family has earned
o Homemakers Factors  Cost of replacement, or what they could have earned in the market
Pain, Suffering, and Other Intangible Elements
 Per Diem Approach—P’s attorney suggests $ amount for P’s pain for an increment of time
 McDougal—Loss of enjoyment of life has a requisite of cognitive awareness
o Loss of enjoyment of life and P&S are separate
 Jones—Jury has discretion and court should not disrupt their findings
o P&S—Established by (1) Circumstances of case; (2) Medical testimony; (3) Victim
testimony
o Loss of Paid Wages—Jury considers (1) P’s physical condition before injury; (2) P’s past
work history & work consistency; (3) What P would have probably earned absent the
injury; (4) Probability that P would have continued to work the rest of her working life
o Loss of Consortium—When P can no longer do activities with their spouse
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TRESPASS

Prima Facie Case—
o (1) An act of physical invasion of the P’s real property by the D
o (2) Intent by the D to bring about a physical invasion of the property
o (3) Causation