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TORTS Outline

TORTS – Outline
Tort Law – Torts are wrongs recognized by law as grounds for a lawsuit. In almost all cases, the defendant is in
some sense at fault, either because he intends harm or because he takes unreasonable risks of harm.
- Defendants wrong results in a harm to another person.
Goals of Tort Law:
1. Compensation
2. Deterrence – it is the idea that all persons, recognizing potential tort liability, would tend to avoid
conduct that could lead to tort liability.
(IOWA 1968)
- Defendant MCAFOOS was operating a tricycle on said public sidewalk and drove the tricycle into
the rear of the plaintiff without warning, striking the right leg of the plaintiff thereby causing an
injury to the Achilles’ tendon of that leg.
- Plaintiff did not plead a cause of action, so the court dismissed. Plaintiff appealed, but lower court’s
decision was upheld.
Sine qua non: an essential condition
(S.C. 2009)
- Passenger sued driver seeking damages for injuries suffered in a traffic accident. The driver
admitted liability and the trial proceeded as to damages only. He claimed around $500k and was
only awarded $6k.
- Case was remanded for a new trial on damages.
Nisi additur:
- Nisi: (unless) a court order that will come into force at a future date unless a particular condition is
- Additur: refers to the power of a trial court to assess damages or increase a jury award of damages
found to be excessively low. Means for avoiding a re-trial where the damages awarded by the jury
are deemed to be as low as before.
Negligence: intentional tort because they can’t recover from insurance if intentional, frees them from obligation.
Tort Law v. Contract law -> different remedies
o Tort Law: recovery for a non-contractual based harm.
o Contract Law: not focused on money damages
Civil Law:
- Contracts
- Torts
- Domestic relations
- Property
*whether wrongdoer can be held liable or not*
Criminal Law:
- Felonies
- Misdemeanors
- Violations
*whether wrongdoer actually committed the crime*
(IOWA 1968)
- Statements to show intent to harm or even touch?
- Statements that would lead to think that intent was probable?
- Facts to make you think that he was careless?
Only responsible if
Intentional or
for all consequences
of one’s act
Tort Liability
- Corrective justice
- Loss distribution
- Redress of social grievances
- Compensation
- Optimal deterrence
1. Intentional Torts (7)
2. Negligence Actions
3. Strict Liability
A pleader must allege ultimate facts which the fact finder can conclude the essential elements
of cause are present (or fault)
Prima facie case: case good on its face (all elements must be proven)
Purpose or knowing with substantial certainty / (specific or general)
(harmful or offensive) / Voluntary
o Injury: technical injury required of particular tort
Dual intent: reasonable person would find
o Intent to contact
o Intent the contact to be harmful or offensive
Transferred intent:
o D is liable for all consequences of his intentional act whether he knew or not.
 Reasons for transferred intent doctrine
 Recourse for victim
 Difficulty with proof – everybody will say they intended something
else to happen.
 Types of transferred intent
 A intends to hit B but hits C instead
 A intends to assault B but hits or false imprisons B instead.
A. Battery: subject to liability when a person acts intending to cause harm and when harm contact occurs.
a. Unconsented contact
b. Offensive contact or touching
c. Harmful or offensive contact/ touching resulting harm or offense
i. Harmful: physical impairment, pain or illness
ii. Offensive: offending reasonable sense of personal dignity
1. Elements:
a. Intent: (some states recognize that there has to be both [specific and
i. Specific: (purpose) desiring to bring about the technical injury the
particular tort seeks to protect against.
ii. General: (substantial certainty) knowing to a substantial certainty
that the technical injury the particular tort seeks to protect against
will result.
1. Liability of minors?
(OHIO CT. APP. 1993)
- Surgeon performing a gall bladder operation. The operation was not going well so he became
frustrated. The nurse made a small mistake and he grabbed her shoulder and pulled her face down
toward the surgical opening and screamed at her.
- The lower court found for the surgeon, but the higher court sustained an error and said that
“reasonable minds could conclude that the surgeon intended to commit an offensive contact”
(ILL. APP. CT. 1995)
- Patient and husband sued nurse and hospital after a male nurse observed and touched her naked
body against her expressed wishes. She argued the nurse committed battery when he knowingly
disregarded her wishes because of her religious beliefs and knowingly violated her privacy interests.
- The case was dismissed, but on appeal the case was reversed and remanded.
(WASH. 1955)
- A child under 6, pulled out a chair from under defendant when defendant was in the process of
sitting down.
- Substantial certainty
- The court ruled for the defendant.
(COLO. 2000)
- An elderly woman was put on a personal care center, she had erratic behavior and one day while
the caregiver was trying to switch her diapers, she struck her on the jaw. Caregiver filed a suit for
- Lower court found for the elderly woman. On appeal they said she should be liable. The supreme
court then reversed judgment and reinstated the jury verdict for the elderly woman.
- Requires some proof that tortfeasor intended contact and intended it to be harmful or offensive.
- Depends on mental capacity; must be able to appreciate action.
(UTAH 2005)
- While waiting in line, plaintiff was attacked from behind by a mentally disabled patient who was
brought to the store and accompanied by state employees.
- Single intent
- Only “intend to make contact” is required; “the actor need not intend his contact to be harmful or
(KAN. 2007)
- A fight broke out in a party and the owner stepped in the middle to stop it. The owner was
unintentionally hit while one was trying to hit the other person involved in the fight. Owner sued for
assault and battery.
- Transferred intent
** When courts have been forced to choose between the goals of fairness and efficiency, they have opted for
fairness. **
1. Allen intentionally punches bob in the nose. Has Allen committed battery?
a. Yes
2. Don shoots at Pat, intending to hit him with the bullet. Does Dan have the necessary intent for battery?
a. Yes
3. Delvin shoots at Paul, intending to miss Paul, but also intending to make Paul think that Paul would be
hit. Does Delvin have the intent needed for battery?
a. Yes
4. Darrin intends to tap Phillip lightly on the chin to annoy him. If Phillip has a “glass jaw”, which is
broken by the light blow, has Darrin committed battery?
a. Yes
5. Doug spits on Peter. Has Doug committed battery?
a. Yes
6. Dylan kisses Poly while she is asleep. Has Dylan committed battery?
a. Yes
7. Dayton threw a rock at a target, a discarded beer bottle he has found. The stone goes wild and strikes
Pauline. Is Dayton liable under the transferred intent doctrine?
a. No, this would be negligence.
1. A battery occurs only if Dan intends to harm another person.
2. A battery occurs every time a person touches another person.
3. A battery can occur even if Dan didn’t mean to hit A.
B. Assault:
(IND. 1991)
i. Plaintiff clamed assault because of the intentional infliction of emotional distress when
they threatened him with a gun twice in separate occasions.
ii. Trial court entered summary judgment against plaintiff and court of appeals affirmed.
Supreme court reversed and remanded the case for further proceedings.
b. Elements:
i. ACT: Defendant must create reasonable apprehension of immediate harmful or offensive
contact plaintiff’s person.
ii. INTENT: By defendant to purposely bring about apprehension of immediate harmful or
substantial certainty that offensive contact to Plaintiff’s person could occur.
iii. CAUSATION: Defendant’s acts must have caused or approximately caused apprehension
by plaintiff.
1. If not aware, actual harm is needed.
- Apprehension:
o Plaintiff must be in apprehension of an imminent unconsented touching
o Apprehension doesn’t mean fear.. it means the sense of about to be touched. Most of the
time, the damages for assault will involve offense rather than harm.
o Apprehension is necessary for assault. Contact is not. Once you get contact, you move to
- Imminent:
o Threat is immediate (without significant delay) or imminent.
Words alone cannot count as an assault. The plaintiff must reasonably apprehend an immediate
touching and that in most cases words alone will not suffice to create such apprehension. (Words
alone could be assault if the person has a criminal background)
Assault is typically a mental injury. Only when you combine it with battery will you get a physical
o Psychological injuries are compensable
False Imprisonment
Intent to confine
Bounded area (actual confinement)
Must be awareness (knowledge of confinement)
Unconsented and unprivileged (not really part of the prima facie case) – Against P’s will.
a. For confinement to be unlawful, it must be unconsented and unprivileged.
- Confinement for false imprisonment can be accomplished by a false assertion of legal authority.
What kind of injuries must you suffer to be able to recover for false imprisonment?
o You need to have physical, mental, or economic damages.
o You could even make a claim for nominal damages, but you probably wouldn’t want to
In the end, why do we have false imprisonment claims?
o We want to ensure personal freedom and dignity.
o We want to deter abuse by authority figures.
o We put limitations on the tort because we want to protect property rights.
o Allow public officers to make appropriate decisions.
Torts to property
Trespass to land:
a. Trespass occurs when:
i. D intentionally enters P’s land, without permission
ii. D remains on P’s land without the right to be there, even if she entered rightfully
iii. OR - D puts an object on (or refuses to remove an object from) P’s land without
physical invasion to plaintiff’s real property
by defendant to bring about physical invasion
by defendant’s act
o LOWEST BURDEN: No need to prove intent, because the act itself would prove intent.
 Nominal
 Punitive: if trespass is deliberate or “malicious”
Trespass to Chattels: (temporary removal or temporary use of someone else’s possession)
a. Trespass occurs when:
i. ACT:
D interferes with P use or possession of the chattel
Mere meddling with chattel of another
iii. CAUSATION: Actual damage
b. Only damages needed to be paid (not the full amount of the possession you took, because it is
i. Liability is based on actual damages.
Conversion of Chattels – Trover
a. Defendant must intent to exercise substantial dominion, and
b. Defendant must exercise of substantial dominion, control over chattel
i. There is no requirement for the defendant to be conscience of wrongdoing.
Imposing liability:
o Courts consider these following factors in determining whether D’s interference with P’S
possessory rights is severe enough to be conversion, or just trespass to chattels.
 Extent and duration of control
 The defendant’s intent to assert a right to the property
 The defendant’s good faith
 The harm done
 Expense or inconvenience caused
What can be converted
 Tangible personal property
 Money and land cannot be converted
Value of the chattel at the time
Replevin or actual recovery of the chattel itself
c. D can also commit conversion by transferring a chattel to one who is not entitled to.
i. Ex. D, a messenger service, delivers a package to the wrong person, L. L absconds
with the goods.
1. D has committed conversion, even though D did not end up with possession of
the goods.
d. D may commit a conversion by refusing to return goods to their owner, if the refusal lasts for
a substantial time.
Forcible Harms as Civil Rights Violations (42 U.S.C.A. Section 1983)
Every person who, under color of statute, ordinance, regulation, custom, or usage of any state or territory of
District of Columbia, subjects, or causes to be subjected, any citizen of the U.S. or other jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceedings for redress.
** If the professor does not specify dual/ single intent state, you should be able to analyze both sides; BUT most
of the time it will be dual intent **
Florida IS dual intent.
Types of transferred intent:
Transferred intent does not work for conversion or IIED (Intentional Emotional Distress)
Study tools:
Flashcards for memorization
Defenses to Intentional Torts – Privileges
** Defendant has burden of proof their affirmative defense by preponderance of evidence. **
- Self- defense
o Retreat
 Duty to retreat: the principle that the person being attacked should always retreat if
possible instead of using force in self-defense.
 The Castle Doctrine: gives citizens in their homes, and in some states, cars or
workplaces the right to protect themselves, other people, and their property by force,
in some instances even deadly force.
 Stand your ground: a law which places no obligation on a potential victim of crime to
retreat and call police. The potential victim here is instead allowed to respond to force
with force even if flight is a possibility.
 Allows citizens to use deadly force if they feel their life is in danger.
 Florida is a stand your ground law state. (Majority states)
o Excessive Force
o Provocation
 Insults are not sufficient
o Resistance to unlawful arrest
o Assault and imprisonment in self-defense
- Defense of Others
o Defense available if actor has reasonable belief that person being aided would have right of
o D may use same amount of force necessary to defend as he would have used in his own
o No room for mistake
o Some court found no self-defense = liable
Hypo 1:
1. P files a complaint stating that a certain time and place D shot P in the arm with a .38 pistol.
a. This states a claim good against a demurrer or motion to dismiss.
b. Then suppose that D files an answer saying he did indeed shoot P but that on the occasion in
question P and D were in a bar, that P started a fight and broke a glass bottle, that P was
lunging at D with the jagged bottle, and that D fired the shot in self-defense.
i. Battery (offensive and harmful contact)
ii. Now we can see that the defense comes in only when the complaint (or proof) makes
out a prima facie case.
- Assault and battery
o Clearly occurred (she was being hit)
Self Defense argument
o Rule? One has the privilege to use reasonable force to defend themselves from harmful or
offensive contact and confinement.
 Reasonable belief of death or harm in order to defend yourself.
 Retaliation is not allowed.
 Retreat is not necessary (depending on the state)
 Defense is not available if you are the initial aggressor.
Judge vs. jury issue? Judge reversed and remanded for an issue of material facts
Hypo 2:
1. A is in a dangerous part of town, late at night. Walking warily and in some fear for his safety, he
suddenly feels two arms around his neck. In fact, this is B, an old friend, who has often surprised A
in this fashion, but never before in dangerous circumstances. A, thinking he is attacked, probably
with a deadly weapon, goes into a judo defense and throws B over his shoulder. B hits the ground
and suffers serious and permanent back injury.
a. Reasonable under self-defense because he believed he was in imminent danger.
i. Must prove that the amount of force used was reasonable under the circumstances.
Defense and repossession of Property
- D has a general privilege to defend his property by the use of reasonable force
- Privilege applies only when defense appears reasonably necessary
- Privilege belongs to the possessor of land, not merely the title holder
- Justified if the trespasser commits a felony punishable by death, or if the act endangers human life.
- Battery?
- Assault?
- Transferred intent?
o Whether one is privileged to threaten an act one would not actually be privileged to carry out.
o Can you transfer an intent that does not exist?
o If the defendant’s intent is not tortious, there is no intent to transfer.
- Rule: A is privileged to shoot B in self-defense and does so but accidentally injures C in the process,
he is not liable to C in the absence of negligence.
Recapture / Repossession
o Recapture of chattels
 One dispossessed of chattel is privileged to use reasonable force to recover the chattel
immediately after its dispossession
 Limited to:
 Fresh pursuit
 Demand (unless useless or dangerous) and
 Reasonable force under the circumstances
o Repossession of land
 Majority: must seek recovery from the courts, not by force, even by the use of
reasonable force
Minority: some allow owner to use force, limited and always reasonable
- Introduces the merchant’s privilege to detain for investigation.
- The plaintiff was seeking to hold the defendant shop owner and security guard liable for assault and
better, false imprisonment.
- Defendant’s defense was that privilege applied in this case.
- Legal lesson: a shopkeeper or merchant is privileged to detain for reasonable investigation a person
whom he reasonably believes to have taken a chattel unlawfully.
Consent (80)
Expressed consent
Implied consent
o Plaintiff unconscious or otherwise unable to consent
o Life-preserving medical attention necessary
o No reason to belief the plaintiff would not consent
o Reasonable person would consent
** Consent by mistake is still valid, unless the mistake was caused **
- Corrections officer was sued by an inmate for battery after performing oral sex because he was in a
position of power and she felt forced to do it.
- Power relationships
- Doctor operated on two herniated disks that he did not have permission to operate on.
- Exceeding the scope of consent
- Doe sued Johnson for battery because she contracted HIV from him.
- One who knows he has a venereal disease, and knows that his sexual partner does not know of his
infection, commits a battery by having sexual intercourse.
- Public necessity (complete privilege)
- Necessity: acting to prevent threatening injuries from some source of nature
- The plaintiff cannot recover for the value because D had immunity
- Where the defendant prudently and advisedly availed itself of the plaintiff’s property for the purpose
of preserving its own more valuable and the plaintiffs are entitled to compensation for the injury
- Private necessity
o To protect interest unique to defendant (not public)
o Limited privilege
No liability for technical tort
Must pay for actual damages caused
RECAP – Affirmative Defenses (Privileges)
- Defense of self
- Defense of others
- Defense of real property
- Defense and recovery of personal property
- Consent
- Necessity
o Public
o Private
B - Rupert has a claim against Hannah, and Hannah has a claim against Rupert, for battery. Battery is the
intentional infliction of harmful or offensive contact. Each of these two individuals “pounded at” each other in
this fistfight that began as a discussion of professional sports, indicating that the blows were intentional acts.
Hannah and Rupert both desired to inflict harmful contact on the other, and harmful contact resulted from their
actions. Jurisdiction differ on whether their consent to the blows will bar their claims. The fistfight appears to
have been consensual. The majority rule is that consent to an illegal act is ineffective. The Restatement
(Second) of Torts and some jurisdictions disagree, holding that consent to a criminal act is a valid defense in an
action for an intentional tort. If the jurisdiction follows the majority rule, the status of the fistfight as a criminal
breach of the peace would make the consent ineffective, and so Rupert and Hannah would each have a battery
claim against the other.
You could be wrong, but it looks as if the person about to drink has been given a dangerous substance without
her consent. Your privilege to use force in her defense extends to what is reasonable under the circumstances.
Knocking the drink out of her hand onto the floor would be reasonable, and you’d have a privilege in an action
by the person about to drink, should she bring a claim for battery, or by the bar, for trespass to their chattel.
Brawling with the maybe-assailant would go beyond the needs of defense because the person has already
poured the vial of liquid into the other person’s drink. (Defense of others, trespass of chattel, battery?)
Mr. Glenn Garcia sees Mr. Kevin Fertel, a blind man, about to step into the street in front of an approaching
automobile. Mr. Garcia could prevent Mr. Fertel from so doing by a word or touch without delaying his own
progress. Mr. Garcia does not do so, and Mr. Fertel is run over and hurt.
- Is Mr. Garcia liable for negligence? No, no duty.
Types of fault:
- Intentional tort
- Negligence: any conduct that creates and unreasonable risk of harm to others.
- Negligence law is about striking the appropriate balance
- Business of life cannot be rendered absolutely safe
- Weigh public benefit against possible dangers
- HAND FORMULA: Duty exists when B < PxL
o B: burden of taking precaution
o P: possibility/probability of risk
o L: gravity of the potential harm
Legal Elements of a Negligence Claim: [Duty – Breach – Causation – Harm]
- To receive compensation, the plaintiff must allege and prove facts establishing five elements:
o The defendant owed the plaintiff a legal duty;
o The defendant, by behaving negligently, breached that duty;
o The plaintiff suffered actual damage;
o The defendant’s negligence was a factual cause of this damage; AND
o The defendant’s negligence was a “proximate cause” of this damage or, as is sometimes said,
the damage is within the “scope of liability” of the defendant.
- Special danger/ personal injury
- Sets up the SOC (standard of care) as a constant standard
- The standard remains the same regardless of danger, but in referring to that standard we can see that
it may call for greater care when danger is greater.
- Emergency doctrine is a circumstance to consider
o “flexible” side of standard
o What needs to happen in order to use emergency?
- Standard same but circumstances change
- The standard is objective
o I.E. Jennifer is not a bright person who stores rags, gasoline and paint thinner in her garage
and who thus unwittingly causes a fire. What is her standard of care?
- Physical limitations
- SOC takes physical disabilities into account
o If physical limitations were not taken into account, perhaps some people with impairments
could not go into the world without risking liability.
o i.e. a blind pedestrian must act as any other reasonable blind person would act under the
- Disability is neither a “justification” nor an “excuse” for otherwise negligent conduct; rather, the
reasonableness of the actor’s conduct is evaluated in light of the individual’s disability.. With
physical disabilities, then- just as with childhood- the law tailors the negligence standard to
acknowledge the individual situation of the actor.” The New Restatement
A blind man operated a concession stand in the lobby of a post office, and had done so for over three years. He
had special mobility training and good mobility skills. He went to the restroom without using his cane, and ran
into the plaintiff, injuring him.
- What do you think P’s argument would be for the blind man negligence?
o One might think that a reasonable blind person would be negligent for not using a cane; that
was plaintiff’s argument. But testimony came in that blind people routinely and safely use
other techniques, other than canes, when moving around in familiar surroundings.
Standard Of Care – Reasonable Prudent Person
- Old age:
o Not taken into account – but physical disabilities are caused by old age are taken into
o Held to the same SOC as sober individuals unless their intoxication was involuntary.
Sudden incapacitation:
o One who is suddenly incapacitated is not chargeable with negligence.
o Burden of proof was on the D to prove that the sudden physical incapacitation was
Contributory negligence
o May bar the case or reduce the damages and that in general the negligence of the plaintiff is
judged by the same standard as those of the defendants.
- Mental capacity of the actor
- A mental disabled person is held to the standard of someone of ordinary intelligence and knowledge.
- Mentally incompetent patients owe no duty of care to protect paid caregivers from injuries suffered
while caring for those patients
- Whether this case is contrary to Stewart v. Motts?
o No, because the standard of care is always reasonable care. (Reasonable care in accordance
to the circumstances).
- 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. If the actor has
in fact more than the minimum qualities, he is required to exercise the superior qualities that he has
in a manner reasonable under the circumstances.
- The child standard of care.
- Child of like age, intelligence, and experience unless
o Operating motorized vehicle (Dellwo)
o Engaged in adult activity (RESTATEMENT)
o Engaged in dangerous activity (Robinson)
Presumption of (or prima facie) NEGLIGENCE
- Proof of duty and breach as a matter of law that may be rebutted
- Only rebuttable upon showing of credible excuse
- Jury makes determination regarding the validity of excuse
Negligence Per Se
- A criminal or regulatory statute imposes a penalty for violation of a specific duty.
- D violates the statute by failing to perform that duty.
- P is in the class of persons intended to be protected by the statute.
- The harm is of kind which the statute or regulation was enacted to prevent or protect against,
- P’s injuries were proximately caused by D’s violation of the statute.
Unexcused violation is “negligence in itself”
Court makes determination regarding validity of the excuse in deciding
whether to apply statute.
Standard: a model accepted as correct by custom, consent or authority.
Rule: generally an established and authoritative principle.
Reasonable Prudent Person
o Adult
o Child
o Professional
Rule of Law
Statute for Non-negligence purpose
Statute for negligence
Reasonable Prudent Person
- Objective standard
- No mental deficiencies considered
- Takes into consideration custom and still acts reasonably
- RPP in an emergency
- Child standard of care
- Takes on physical characteristics of actor into consideration
Judicial treatment of specific duties:
- General duty is specified to a particular requirement of action.
o A specific duty to drive within the range of one’s lights.
- It is always negligence not to be able to stop within the range of vision.
- Limits the jury’s role.
- Judges decide for themselves that what the specific standard or duty requires.
- Whether the judge should have created a rule of law or should have left the issue for the jury to
determine under the general rule of a RPP.
- Specification of general duty rejected, and jury role restored.
- The same court a year later rejects this specification of duties as too rigid and leaves the question of
ordinary care to the jury.
o Expanding the jury’s role.
o Juries, not judges, decide whether the general, RPP standard was breached in the particular
Legislative treatment of specific duties:
- Involves a legislature-made, not a judge-made rule of law about specific conduct require.
- Violation of the statute requiring lights on the buggy was not merely evidence of negligence as the
Appellate Division has held.
Cardozo holds that “the unexcused omission of the statutory signals is more than some evidence of
negligence. It is negligence in itself”. [Violation of the statute even though the statute itself does not
say this, actually determines the actors negligence]
O’GUIN V. BINGHAM COUNTY (2005) ******* good case for patterns for answers *******
- Trespassing children were killed playing at a county landfill and sued the county on a negligence per
se theory, pointing to the county’s violation of state statutes and federal regulations governing
- The court explains the courts power to adopt or reject non tort statutes and then applies the class of
persons, type of harm test for statutory applicability.
- The court holds that these tests were met, so that the statutory standard “replaces the common law
duty of landowners” in the case.
- A violation of statute is negligence per se only if the
o P is within the class the statute intends to protect and
o Only if the harm sued for is the kind the statute seeks to avoid.
- Lodge’s attempt to avoid a moose on the highway was an emergency.
- Crossing over the center line of the road (an action that would surely constitute negligence per se
without a valid excuse)
- Could rightly have been found by the jury not to have been negligent, given this valid excuse.
Determining a Standard of Care
REST (2D) TORTS §285
- Determining what the RPP would have done in the circumstances.
- Applying a Rule of Law (judicial pronouncement of SOC).
- Applying legislation not expressly defining SOC to be used in a negligence action.
- Applying legislation expressly articulating SOC in a negligence action.
Breach of Duty
The State of Dai adopts a statute requiring people to cut down partially severed tree limbs. The
legislature passes this statute stating that it believes that RPP will cut the limbs down because they
are a hazard. If Delicia fails to remove a hanging tree limb, and it falls and injures Camila, she will
be liable for __ ?
 Negligence per se
Which of the following 15 year-old individuals who injured a plaintiff named Katia through
arguably negligent conduct is most likely to be held to the adult RPP SOC, rather than a child
o Joe: without having good control of the wheel he drove a snowmobile into Katia,
knocking her down,
o Jacob: he mishandled a rifle while hunting, causing it to discharge and fire a bullet into
o Justin: he built a campfire to roast marshmallows and then was unable to put it out; the fire
burned Katia’s property, (SETTING FIRE IS NOT ADULT ACTIVITY)
o John: aware that the brakes on his bicycle had not been working well, he nevertheless
bicycled down a steep hill and collided into Katia. (EXCEPTION SO NOT CORRECT)
In an action for personal injuries, Ashley claims that Mario was negligent. Mario had consumed a
full bottle of vodka before he engaged in the conduct at issue, motivated by curiosity about how this
alcohol would make him feel. He was drunk when he engaged in the conduct. On what basis should
the jury take into account Mario’s intoxication?
o The jury should hold Mario to the standard of a reasonable intoxicated person.
o The jury should hold Mario to the standard of a reasonable sober person.
o The jury should hold Mario to the standard of a reasonable person with a mental deficiency.
o None; this question is not for the jury. Voluntary intoxication makes Mario negligent as a
matter of law.
Lucas brought an action for negligence against Jetskidder Waterski Club, Inc. owner of an artificial
lake that included a marina and a waterskiing facility. A beginner at waterskiing, Lucas suffered a
severe spinal injury when he fell off his skis and hit his head on the bottom of the shallow lake.
Lucas claimed that Jetskidder was negligent for having posted a sign at the lake’s edge reading
DEEP WATER. He said that if Jetskidder had not claimed that the water was deep and therefore safe
to fall into, he would not have skied in that area. The lake was in fact only 3 feet deep. The DEEP
WATER sign was posted in error; Jetskidder had prepared the sign in anticipation of building a
channel for the benefit of boat traffic coming to its dock. An employee had been experimenting with
locations for the sign and forgotten to remove it. Lucas’ claim that Jetskidder breached its duty to
care to him is
o Valid, because a RPP in Jetskidder’s position should have known that the sign gave
false message of water depth that could induce someone to ski in the area.
o Valid, because a lake depth of 3 feet is not reasonably safe for the activity of water skiing
that Jetskidder offered.
Breach: a nonconformity to the SOC.
- Statistical certainty instead of substantial certainty
- Negligence is unreasonable risk
- Negligence is conduct (either an act or an omission to act when there is a duty to do so)>
o A state of mind by itself is not negligence.
- Negligence and intentional torts are contrasting ideas.
- Nevertheless, you need to recognize that many intentional acts merely create unreasonable
risks and thus are merely negligent act, not intentional harms.
- Negligence is conduct that creates unreasonable risks.
o Whether a reasonable person would foresee that harm might result from his actions.
 Foreseeability may be a complex matter
 In some cases it may simply come down to asking whether something similar has
happened before
 And where a reasonable person could conclude that has was foreseeable
 This is an issue that should be left to the jury
- “Where the actions of a passenger that cause an accident are not foreseeable, there is no negligence
attributable to the driver”
o However, reasonable people could believe that Beisel’s second grab was foreseeable since
Beisel had grabbed the wheel once before.
o Jury should be allowed to decide whether Parsell breached a duty of reasonable care.
- The Florida Supreme Court says that “Respondent owed a duty to take reasonable measures.”
o Broad formulation leaves room for the jury to decide what those are.
o You might contrast this broad approach, with the lower court’s narrow and more factspecified framework in which the judge asks whether the school had a duty to use the AED.
o Duty determined by judges and breach by the jury*
o The more appropriate way to look at the second question is to ask if the school breached a
duty by failing to use the AED.
You need to watch that issues framed as duty questions really are:
o If defendant says on a motion to dismiss that it had “no duty to trim a bush that obscured the
intersection,” the plaintiff’s best answer might not be to assert that “the defendant did have a
duty to trim the bush obscuring the intersection.”
 The plaintiff’s might more appropriately go back a move and say “The defendant had
a duty of reasonable care. Whether failing to trim the bush was reasonable or not is a
question for the jury.”
- 3 claims of negligence
o D spilled gasoline
 Is the least interesting. There was no proof that he did.
o D should not have started the machine in the garage
 The garage was large and suited to starting cars and mowers.
 Fire was “unforeseeable.”
o D was negligent in not pushing the mower to a position of safety after the fire started
 Involved a greater risk, that is, a risk of greater harm (not greater probability, but
greater harm).
- Emergency doctrine
- Life vs property – life always wins
- Treating others as you would treat yourself
- The risk may be so small that an employer could reasonably take that risk.
- Judge Posner said “an obvious danger is no danger to a reasonably careful person.”
- The most effective allocation of responsibility would be to hold Stinnett responsible for his own
- If we diffused or eliminated Stinnett’s responsibility for himself by holding Buchele liable, the world
might become riskier for everyone.
- Open and obvious danger
o Merely a factual element in some cases
o The principle is much larger
o Involving the concept of a low probability (risk) of harm, and specifically a low probability
due to the fact that the P can care for himself.
- Focus on the question of negligence rather than causation or apportionment.
- Suppose we added the (hypothetical) fact that stronger poles would also cost $100 more per pole. Is
the increase in safety resulting from strong poles worth this cost?
o That may make the company a good risk distributor; the loss can be absorbed by citizens of
the area as a whole, almost in the same way it would be absorbed if the injury were
compensated from tax monies.
o This would mean that no one would feel the blow very heavily, and that is to the good.
o Is this a good enough reason to impose liability?
o How many taxpayers would vote to have this increased safety on the public streets if it meant
even a small rate increase?
- Was it negligence not to have a bargee on board so that the barge owner’s recovery should be
reduced under Admiralty comparative fault rules?
o No general rule requiring a bargee’s presence or forgiving a bargee’s absence.
o Risk and other factors differ with circumstances so that a “rule” is really not justly possible.
- One’s duty is a function of three variables:
o Probability of harm
o Magnitude or gravity of harm
o Burden of adequate precautions
 *Judge hand’s formula: B<PL
 Imposing liability when the burden of precaution is less than the probability of harm
times its magnitude.
Comparative fault
- The plaintiff’s recovery is reduced to reflect her fault.
- Court does not say it disbelieves the plaintiff
o Her evidence does not show negligence
- Direct proof
o Sufficiency of proof- the requirement of specific conduct
- Circumstantial evidence – inferences of fact
o Permissible inferences of fact to be drawn or rejected by the trier of fact
- Physical facts, including skid marks and post-impact travel, permit an inference that defendant was
- Whether to draw the inference or not is itself a “fact question” for the jury.
- The question is not to determine the facts but to determine whether those facts constitute negligence.
- We need to judge whether 20 mph is too fast for safety.
- What should Ms. Maddux have done differently?
o Speed does not seem very high here.
- Should she have realized that small children might run out in front of her? And if so, should she have
reduced her speed?
- Should she have sounded her horn?
- Need to
o Identify specific conduct you wish to argue as negligence, and
o persuade
- Evaluation of known conduct: can the trier be permitted and persuaded to evaluate the conduct as
- P must show either that
o Defendant created the condition, or
o Had actual or constructive knowledge of it
- Circumstantial evidence may lead to an inference
2 inferences of fact the plaintiff might urge:
o That an employee spilled the liquid and/or
o An employee saw the liquid spilled by someone else but did nothing to clean it up.
- Evidence to assist evaluation: defendant’s own rules.
- Ct. hold that neither the defendant’s rules nor general custom is a standard, but that both are
evidence the jury may consider in evaluating conduct.
- If internal safety rules were given the force of law, they would either be watered-down (to avoid
liability for their violation) or not adopted at all.
- We see similar concern with the ABA’s and that states’ approach to lawyer ethics rules – that they
should not be given negligence per se effect or create a cause of action, in order to promote rules that
are more aspirational in character.)
- Evidence to assist evaluation: custom of the industry
o Admissibility and sufficiency of custom evidence for the plaintiff: custom as a sword.
- The custom may require acts that are not required by statute or ordinance.
- Notes: Proof of custom: just because everyone does it, doesn’t preclude you from liability for
- In Levin, some custom is not relevant to proving negligence.
o We are focused here on proving that the defendant fell below the standard…
THE T.J. HOOPER (1932)
- May the trier ignore compliance with custom?
o Custom as a shield.
- Defendant failed to have a radio receiver on board the tug.
o If have one, the captain could have avoided a storm that sunk the barges.
- Defense: it was a custom of the industry not to have radios.
- One may be in compliance with custom and still negligent.
- Custom does not set the standard of care. SOC ALWAYS REMAINS THE SAME.
- Compliance as evidence of reasonable care
- Statute as setting minimum standards
- Compliance with statute is not a defense
- I.E. imagine a speed limit statute..
o A 35mph speed limit is certainly demanding
o But if you see children playing soccer beside the street you might think that an even lower
speed is required by reasonable care.
BYRNE V. BOADLE (1863) ** landmark case **
- “Res ipsa loquitur” – the thing speaks for itself
- Rule: it is possible for a presumption of negligence to arise solely from a type of accident that has
o Defendant had exclusive control over the instrumentality of harm.
 [Or other responsible causes sufficiently eliminated - Rest (2d)]
o And the event is sort that ordinarily does not occur in absence of negligence
RIL’s Traditional requirements: P.167 (majority)
- Plaintiff MUST prove that:
o Accident must be of type that normally would not occur without negligence on someone’s
o Neither plaintiff nor any 3rd person contributed to or caused the injuries
o Sources of negligence falls within scope of duty owed to plaintiff by defendant (usually
showed by exclusive control or inability to id a specific source of harm)
3rd Restatement – recent/minority
Fact finder may infer that D has been negligent when:
- The accident that caused the plaintiff’s harm is a type of accident that ordinarily happens as a result
of negligence of a class of actors; and
- D is a relevant member of that class of actors
Procedural Effects of RIL (majority)
- Permits an inference of negligence but does not require a finding of negligence
- Raises a presumption of negligence that defendant must rebut or he/she loses
- Raises presumption or inference of negligence and shifts burden of proof to defendant to disprove
his/her negligence
- Courts are attempting to estimate probability that negligence is a reasonably probable explanation
when an electrical line falls and a fire follows
o Kock says it is
o Cosgrove says not
o Neither court has data on the topic
o Cosgrove, there were stormy conditions
 A court emphasized:
 Superior knowledge and
 Duty to the community as grounds why RIL should be applied in the claim
against the gas company
- Why is res ipsa not applied?
- 2 inferences:
o Mechanical defect
o Negligence of the defendant in failing to take proper precautions in parking the car
- Rule: before a party may invoke res ipsa loquitur they must be unable to identify a specific source of
harm when the exclusive control of the instruments causing injury is weak.
- Parties agreed that the first requirement of RIL was met.
- Disagreed about whose negligence was the likely cause
- Court faced both the “defendant’s exclusive control” and “no plaintiff contribution” tests of RIL
- Court redefines control to determine if Defendant had a right and a duty to control
- Court basically eliminates the “no contribution by plaintiff” rule on the ground that if it adds
anything at all to the “exclusive control” rule, it is at odds with comparative negligence.
- Rule: a showing of exclusive control over an instrument is not a necessary prerequisite to allowing
the use of the doctrine of RIL.
- Elements of Negligence case: where we are
o Duty
Breach of duty
Actual Harm
Factual Cause
Proximate Cause
- Without proof of actual damages, the plaintiff could not prevail on the negligence claim
o Connecticut Supreme Court finds nominal damages cannot be awarded in a negligence case
in which no actual damages have been incurred.
A plaintiff who shoes defendant was negligent but shows no actual damages will lose.
If no injury to plaintiff caused by the defendant’s negligence, then plaintiff not entitled to recover.
- Plaintiff must prove that:
o Not only an actual harm but that it was caused by the D
Factual cause = cause in fact = actual cause
Factual cause does not = proximate cause
- There can be more than one cause
- Factual cause is determined using the but-for test
- But for the overgrown bushes, the plaintiff might not have left the sidewalk and tripped on the
- The But-for Test of Causation (but for the defendant’s negligence, plaintiff would not have been
- Cannot say that “but-for the defendant’s conduct, the injury would have been avoided.”
- This demonstrates that there is no cause in fact.
- If asked about pregnancy, the plaintiff would have answered that she was not pregnant and that the
defendant would have proceeded with the x-rays.
- If the defendant had not been negligent, nothing would have changed, so negligence is not a cause of
the harm.
- Rule: before negligence can be assessed, the negligence complained of must be the cause of injures
complained of.
Problems With and Alternatives to But-for tests (Substantial Test)
- But-for test of causation often will not work if:
o There are multiple tortfeasors and can’t be said that defendant’s conduct necessarily was
required to produce the harm;
o Multiple possible cause of plaintiff’s harm, but plaintiff can’t prove which defendant caused
the harm; or
o Defendant’s negligent medical diagnosis increased the probability of plaintiff’s death, but
plaintiff probably would have died even with a proper diagnosis.
- If single (invisible) injury, then both parties liable (joint & several liability used (either party is liable
for 100% damages))
- If separate injuries, then both only liable for injury each individually caused
- Who caused what portion?
- 2 defendants caused salt water to flow into plaintiff’s lake killing his fish
2 defendants can be held jointly and severally liable for the entire damage where the injury is
indivisible even where defendants’ acts were independent
- Causal apportionment vs. fault apportionment
- Abandons the old rule that defendants’ acts must be in concert with each other to be held jointly
- Rule: if a tortious act of two or more wrongdoers join to produce an indivisible injury, all of the
wrongdoers must be held jointly and severally liable for the entire damages.
** Check book for duplicative and preemptive causation ** P.187
Lasley v. Combines Transport, Inc.
- A jury, not allowed to hear evidence about the driver’s intoxication
-assigned fault to both defendants- 22% to combined transport, 78% to clemmer.
- court of appeals reversed
•Intoxication evidence was relevant.
•Whether combined transport’s negligence was a substantia factor in causing decedents death”
-substantia factor is the test when multiple actors produce harm
•Whether the D’s conduct was a substantial factor in causing the p’s harm.
-presents alternative liability theory
-where P can establish that both defendants breached duty of care but negligence of only one could have caused
the injury, the BOP on issue of causation in facts shifts to defendants to absolve him/herself
-assists plaintiff w/proof problem re CIF
-case applies when only when all defendants are negligent.
Rule: if two defendants cause damage that in the alternative one or the other would be liable for, then both
defendants will be held liable for that damage.
- Whether lost chance of avoiding a permanent disability is also actionable
o Yes
- Ct. discusses two potential approaches:
o softening but-for causation to “substantial factor,” or
o redefining the harm as lost chance of recovery.
- Worries that abandonment of a but-for test showing that malpractice caused disability will lead to out of
control healthcare costs, in addition to other ills.
- Only allow recovery when the defendant can be shown to have been a but-for cause of death or disability
a) causation in fact and
b) proximate / legal cause
^parts we’ve gone over for causation element
- D’s owed a common law duty of reasonable care.
- An actor is liable for “those physical harms that result from the risk that made the actors conduct
- The foreseeability or scope of risk rule actually means two different things.
o You are not liable for harms that not foreseeable in general; and
o You are not liable for foreseeable harms that a reasonable person would not have taken
precautions to avoid.
- Cardozo’s zone of danger test
o Negligent conduct I legal cause of injury if
 Harm is general type that made conduct unreasonable in first place and
 Plaintiff was within zone of danger
- Judge Andrew’s dissent
o Does not agree that liability is limited by any logical or moral principle
o Does not embrace the concept of the “foreseeable plaintiff”
o Thinks the case turns on proximate cause, not negligence (duty and breach)
o His description of “proximate cause” mixes both foreseeability and practical policies.
Rescue Doctrine
o When D creates a risk to A and B is injured in attempting A’s rescue, courts treat B, the
rescuer, as being within the class of persons to whom the defendant created a risk
o Danger invites rescue so an injury to a rescuer would be foreseeable and they can collect.
Violation of Statute and “Proximate Cause”
o Thompson and Palsgraf together pursue rules similar to those used in negligence per se cases,
limiting liability to certain classes of harm and certain classes of persons in these cases, to
classes of harm or person foreseeability of which made the defendant negligent.
- Fire was foreseeable and that explosion, though not foreseeable, was a mere variant of the fire so
that the defendant is liable.
- The scope of risk rule does not require foreseeability of the precise harm, only the general type of
harm or instrument of harm.
- Rule: if a known source of behavior causes damage by an unpredictable way proximate cause will
be found.
- This was thought unforeseeable and not a mere variant on the foreseeable splash.
- The unreasonable risk was a risk of splashing as a result of mechanical forces- the lid falling into the
- The harm occurred differently, through chemical forces or interactions after the lid was in the vat.
- Manner of harm is sometimes important
- Can the defendant’s negligence in maintaining the fire alarm be a proximate cause of Hammerstein’s
serious injuries?
o YES – the extent of the harm was not foreseeable, but the type of harm was.
- Note: The thin-skull or eggshell skull rule
o You take the plaintiff as you find him
o If you can reasonably foresee harm that a reasonable person would have avoided, you are
liable for the damages inflicted even if the plaintiff suffers some condition that makes her
damages worse than they would be to a normal person.
o A rule to the extent of harm need not be foreseeable in order to impose liability.
- The jury to determine whether the intervening criminal acts were foreseeable to the defendant in
light of the facts (Marcus).
- Summary judgment was improper and there was a genuine issue of material fact with respect to
foreseeability (Collins)
- Traditional rule, no longer use in today society
o Intentional intervening acts are ordinarily superseding events
o If D1 is negligent but D2 commits a criminal act that intervenes then D1 is not liable
- Modern view
o D1 is not relieved from liability by the intervention of another person when D1 is already
- Intervening act does not necessarily severe causal connection between defendant’s negligence and
plaintiff’s injury.
o Connection severed only if intervening act = superseding cause
o May be superseding if extraordinary, unforeseeable, or independent.
o Not superseding if risk is very same risk which renders defendant negligent.
- The foreseeability of an intervening cause can be both a question of fact and a question of law,
depending on the circumstances.
- Rule: A party be a cause of an accident but not necessarily a proximate cause.
- Other courts have held that a defendant may be found liable for harm caused by an intervening actor
if the defendant negligently created a situation that increased risk.
- Rule: negligence does not end at the completion of D’s direct act. Any extra risk created by the
wrongdoer is still within the proximate cause of his negligence if it is reasonably foreseeable.
a) D is subject to liability for all harm he causes within the scope of the risks he negligently created.
b) D is not liable for any harm he causes that is not within the risks he negligently created.
A harm or risk is not within the scope of the risks negligently created by the defendant in any of the
following circumstances:
o If a reasonable person in similar circumstances would have foreseen harm or risk of the same
general type.
o If a reasonable person should have foreseen the general type of harm but would not have taken
greater precautions to avoid it than the defendant took (a case of no negligence or breach of
o If a reasonable person would not have foreseen harm of the same general type to a general
class of persons that includes the plaintiff.
A harm or risk of the general kind that would have been foreseeable to a reasonable person is within
the scope of the risk even though neither the exact harm nor its extent, nor the exact manner of its
occurrence was or could have been foreseen.
a) A harm or risk is not of the same general kind that the defendant should have foreseen if he risked harm
that would occur only though a specific force or class of forces and the harm that resulted was caused by
a radically different force or class of forces.
b) Unless the defendant created a risk that foreseeably would result in harm only through specific forces, the
fact that harm is most immediately caused by acts of another person that constitute crime or negligence
does not in itself mean that the harm is outside the scope of the risk created by the defendant.
A defendant whose unreasonably risky acts in fact cause harm within the scope of the risks he
created may be absolved from liability on grounds unrelated to scope of risk considerations, usually
under the rubric of “duty”.
o Lots of issues in fact pattern
Defenses to Negligence
A. Contributory negligence
- All or nothing
- If plaintiff is found to be at fault (any percentage) for her own injury – plaintiff’s claim is barred
- Defendant has the burden of proof
- Plaintiff is held to the same standard of care as the defendant
- Only applies where the plaintiff’s negligence contributes proximately to his or her injuries
- Is NOT a defense to intentional torts, or willful and wanton misconduct.
Hypo: plaintiff, while crossing the street, fails to pay attention. Defendant, traveling at a high rate of speed
while drunk, hits and kills plaintiff.
- Had plaintiff behaved carefully, he would have been able to get out of the way.
- Defendant’s negligence is much greater than plaintiff’s
- Plaintiff will be totally barred from recovery because of his contributory negligence, if the doctrine
Suppose that D was traveling so fast that even had plaintiff been careful, defendant would still have struck
- Plaintiff will not be barred by contributory negligence
- Because his negligence was not a “but for” cause
- And not a proximate cause of plaintiff’s injuries
B. Comparative fault
- Adopting comparative fault rules to permit recovery = comparative negligence – apportioning fault
between plaintiff and defendant
- Pure CF
o Applies comparative fault to all plaintiffs in all negligence cases
o No plaintiff is completely barred from recovery because of her contributory negligence
o Plaintiff’s recovery reduced by percentage of fault attributable to plaintiff
Modified CF “not as great as” (“49% rule”)
o Reduced by % age of plaintiff’s fault as long as plaintiff’s fault is not as great as defendant’s
o If plaintiff’s fault is equal to or greater than defendant’s fault, plaintiff recovery is completely
o 50/50 split, plaintiff barred
Modified “not greater than” (“50% rule”)
o Reduced by % age of plaintiff’s fault as long as plaintiff’s fault is not as great as defendant’s
o If plaintiff’s fault is greater than defendant’s fault, plaintiff’s recovery is completely barred
o 50/50 split, plaintiff recovers
C. Assumption of the risk
D. Statutes of limitations
E. Statutes of repose
- Contributory negligence
o Plaintiff’s failure to exercise reasonable care is a CIF of plaintiff’s injury
o Complete bar to recovery
- District court found that both plaintiff and defendant were negligent
o Apportioned fault 60% to the county and 40% to the plaintiff
- Eighth circuit court of appeals reviewed all of the evidence under Nebraska’s clear error standard
and affirmed the judgment
- County’s negligence was its failure to maintain the sign, or place it early enough given its poor
- Pohl’s negligence was his speeding
- Plaintiff negligently operated a power press in such a way as to put his hand in the machine as it
came down
- Manufacturer could have designed a safety feature to protect against worker’s hand injuries
- Court imposes a duty upon the manufacturer to provide a machine that will protect against
foreseeable contributory negligence
- Contributory negligence is no bar
- Defendant has a duty to use care to protect the plaintiff from the plaintiff’s own contributory fault
and that when such a duty exists, the plaintiff’s contributory fault is no defense
- Can contributory fault be assessed against a 13-yr-old victim of sexual abuse for her participation in
the relationship with her teacher?
o The girl had no duty to protect herself from sexual assault and thus a contributory negligence
defense could not be maintained.
o Why not?
 As the dissent rather pointedly argued, children of that age can be charged with all
sorts of comparative fault?
Contractual or Express: Assumption of the Risk
- Traditional exceptions to the contributory negligence bar in a comparative fault regime.
o The rescue doctrine
 Rhode Island court in Ouelleyee was unwilling to use ordinary comparative fault
rules, saying they did not fully protect the policy if promoting rescue.
o Last clear chance
 If defendant discovered or should have discovered plaintiff’s peril, and could have
reasonably avoided it, plaintiff’s earlier negligence would neither bar or reduce
plaintiff’s recovery.
o Discovered peril doctrine
 Applies LCC rules only if defendant actually discovered plaintiff’s peril
 Plaintiff could not invoke these doctrines unless plaintiff was helpless; if he could
extricate himself from danger at any time, defendant did not have the last chance to
avoid injury and the negligent plaintiff would be barred completely
- Focus in the State’s comparative fault act
- Its effect on the common law unlawful act doctrine
- Liability must be apportioned, not barred when plaintiff has committed an illegal act
- Chief reason against appointment – not wanting the criminals to be able to bring suits and recover –
a practice based on the doctrine of unclean hands
- Court concludes that the statute has express terms for barring suit, and only if those are met should a
complete bar apply
- Dissent: disfavorable outcome of allowing defendants with unclean hands to recover, or perhaps
potentially to recover (as jury would be the one to award any damages)
Illegal activity
- Illegal activity did not preclude recovery because the crime was not “serious” however, the crime
could be given “significant weight” in fixing the percentage of comparative fault.
Assumption of Risk
- New Jersey Supp. Court upheld the exculpatory clause because there was no unequal bargaining
power – the plaintiff could have gone to another gym
- Assumption of risk in the context of discretionary physical activities makes sense
- Gym could still be liable for many acts like failure to warn or failure to maintain equipment, which
seem like ordinary negligence
o But court terms “reckless or gross negligence”
TUNK V REGENTS (public policy limits)
- A consent from, signed in advance, purported to absolve the hospital from liability for negligence in
medical treatment
- Held, the consent is informed but not valid
- Court emphasized several factors
o business is of a type generally thought suitable for public regulation;
o the defendant’s service is of “great importance to the public” and perhaps a practical
o defendant is holding himself out as performing the service generally for the public;
o the need for the service and the economic setting give the defendant “decisive advantage of
bargaining strength”
- Court concludes that the D had no decisive advantage in bargaining
- Court thinks the document release the defendant only from the inherent risks and “ordinary
negligence associated with those inherent risks”
o There was an implied “presumption”, that the training course was not itself unreasonably
o A dangerous course layout with hidden rocks may represent a risk that is not necessary or
inherent in a training course
o SJ was an error
Implied Assumption of the Risk
SIMMONS V PORTER (AOR abandoned as a separate defense, a burgeoning trend)
- Both court and the intermediate court appeals court found his claim entirely barred by implied
assumption of risk
- The plaintiff knew of a dangerous situation and voluntarily exposed himself to the danger
- Kansas Supreme Court reversed, joining the trend towards abolition of implied assumption of risk on
the ground that it is inconsistent with comparative fault
- Assumption of risk is decided by judge vs comparative fault which is decided by jury
- Primary and secondary implied assumption of risk retained and applied
- Primary IAOR
o Legal conclusion relieving defendant of duty to exercise reasonable care
o No duty or no breach
- Secondary IAOR
o Knowingly encountering risk created by defendant’s negligence
o Typically decision to encounter risk is unreasonable
Sport Cases
- Whether the plaintiff was injured by one of the “inherent risks” of the sport
- Primary implied assumption of risk
o Not about whether the plaintiff was negligent for his own safety (that would be “secondary”
assumption, or just comparative fault) but rather about the scope of the duty defendant owed
- Two key differences distinguish Coomer from Roundtree:
o Missouri court continues to use implied assumption of risk as a defense, unlike the Idaho
court which eliminated it
o Plaintiff was struck not by a foul ball but rather by a hot dog thrown by the team mascot
- Whether the plaintiff was harmed by an “inherent risk” of baseball
o “Inherent risks” of an activity is a question for law for the jury?judge? despite the factual
Express Assumption of the Risk
- Law will recognize private contracting to allocate risk unless:
o Uneven bargaining power between the parties (a hospital, employer)
o Contract of adhesion (no option to bargain for allocation of liability)
o Services are necessary – so release or waiver of liability is against public policy (like medical
o Consent must apply to plaintiff’s injury
There is an affirmative defense and defendant must prove
If found, plaintiff’s claim is barred
Analysis IAOR
(1) Is there a duty that was breached?
(2) If no, don’t do assumption of risk analysis
(3) If yes, risk analysis – reasonable or unreasonable risk
(4) Plaintiff assumed a reasonable risk of which plaintiff was aware = no recovery
(5) Plaintiff assumed unreasonable risk (but aware of) = plaintiff is comparatively negligent [recover base
on percentage of liability] (FL)
(6) Plaintiff did not assume unreasonable risk (unaware, didn’t assume the risk) = plaintiff gets full recovery
(7) Defendant has burden of proof
(8) Defendant must show:
a. Plaintiff had actual knowledge of a particular risk
b. Plaintiff appreciated the magnitude of the risk, and
c. Plaintiff voluntary encountered the risk
(9) Some courts apply a subjective standard – what a particular plaintiff in fact sees, knows, understands
and appreciates; other courts apply an objective test – what a reasonable person who appreciates,
understands, etc.
Statutes of limitation and repose
- Court applies the "date of injury" rule to start the statute of limitations
- Most courts no longer use this, instead use a form of discovery rule
- Starting clock with "date of the alleged injury or malpractice"
- The latter would be the date of the negligent act, which may or may not be the same as the date of
the "injury"
- A statute of limitation is a statute
o Attention must be paid to the statutory wording itself
o The cause of action accrues when a P discovered or by reasonable diligence should be
discovered, the injury
- Court ultimately agrees with defendant, reversing a $1.855 million jury verdict
- Dissent would have left the issue to the jury for determination. The question given the jury was when
the injury-manganism-was discovered
- Maine court was unwilling to toll the statute for incapacity
- P’s guardian then argued estoppel, but the court rejected this as well
- Misdiagnosis was not equivalent to fraud and the P did not rely upon a misrepresentation
- Tolling or Grace periods to Statue of Limitations
o Minority- until the minor becomes 18, then it runs for 2 years.
o Unsound mind- individual cannot handle her own business affair
o in Prison or Armed forces
o Fraudulent concealment P must proof:
Defendant knew of the alleged wrongful act and concealed it or had material
information which he failed to disclose.
 P did not know or could not have known through reasonable diligence, of the cause of
action within the statutory period.
o Equitable estoppel- extraordinary events prevent plaintiff from bringing timely action.
- May 1999: sign completed and installed
- April 2009: sign fell on the plaintiff’s truck
- Nov 2009: P sued
o P attempted to prove fraudulent concealment, but the court held there was no evidence of
o Statute of repose, the P’s claims were entirely barred
- If P sued in April, 2009, his claim would not have been barred
- Statute of limitations
o Limit the time buy which a cause of action must be filed
o Procedural rules
- Statute of repose
o Limit the time during which a claim must arise
o Substantive rules
Federal Preemption
- Suit was based on a FL common law doctrine called the dangerous instrumentality doctrine
o Owner of a motor vehicle has “strict liability” to “ensure that the vehicle is operated safely”
 Aerolease would seem to be liable
 Aerolease argues that the doctrine is preempted by federal statute
o Whether federal preemption should be implied
 Ct concludes that it only applies to people or property on land or water under the
airplane, not crew and passengers it
o Fl law does not preempt the state rule and FL’s dangerous instrumentality doctrine will
o Dissent
 Find that the death took place on land and FL law would this be preempted
Chapter 14 and 15
- Privileges or Defenses: avoid or decrease liability only in particular circumstances
- Immunities: absolution from liability in all circumstances, based on the status of the defendant
A. Families
B. Charities
C. Employers
D. Local and State Government
E. United States Government
Family Immunities
Common law: interspousal immunity doctrine
o Proposed historical rationale –
 Can’t sue oneself (husband)
 Promote tranquility in marriage
 Collusion concerns
 Increase in litigation
Family Cases
o Illinois applies discretionary immunity
o One argument is that parents should have freedom to raise children in their own way and
under cultural norms that vary considerably from one group to another
o Would it be better to recognize that while parents have a privilege to discipline, they are not
free to take unreasonable risks with their children?
o This was not a case of negligent supervision, said the court.
o A case of plain negligence – a duty derived not from one’s duties as a parent, but rather from
one’s duties to the world at large.
 Interspousal immunity has been abolished in majority of jurisdictions.
 Parents still immune from liability in majority of jurisdictions.
** immunity will be taken away from a parent who has dual responsibility to the child. Ex. Parent is also child’s
Charity Immunities
- The doctrine of charitable immunity has been abandoned in the majority of jurisdictions
- Exists in modified form in several jurisdictions
Employer Immunities
- Employers immune from employee liability
- Employees may recover from employers for work-related injuries under Workers’ Compensation
The Federal Tort Claims Act
- The government waives immunity for torts “under circumstances where the U.S., if a private person,
would be liable to the claimant in accordance with the law of place where the act or omission
- Supreme Court explains the basis of the Act’s waiver of sovereign immunity
- Plaintiff’s claimed that the negligence of federal mine inspectors caused injury to mine workers
o The focus should be on whether the law of the state where the injury occurred would provide
for the liability of a private person in an analogous situation.
 There are “private persons who conduct safety inspections”
 The question is what the Arizona state law says about liability of such private
 Parties disagree over that, so there is a remand for a determination of that issue
- Government defended on grounds of discretionary immunity
Court applies a two-part test to determine whether the immunity applies
o Whether the challenged action was discretionary, that is, whether it “was governed by a
mandatory statute, policy, or regulation.”
o Whether the challenged action “involves a decision susceptible to social, economic or
political policy analysis.
Court looks at earlier precedent on the second issue
o Whether the challenged government action involved the design of a course of action or
merely the implementation of a course of action.
o Determines that the suit is not barred by discretionary immunity
o The alleged negligence was in the “implementation, rather than the design” of safety
- The claim is that the agency violated regulations.
- Court held the decision to prescribe added regulations is discretionary and not subject to suit.
- However, the government may be liable for failing to follow its own regulations in testing for safety.
- A man on active service with the Navy committed suicide in his barracks.
- Claiming that military and DOD personnel were negligent in taking care of him once they were on
notice that he was suicidal.
- Government argued that the plaintiff’s claims were barred by the Feres doctrine
o the government retains an immunity for injuries to active military servicemen and
servicewomen “where the injuries arise out of or are in the course of activity incident to
o The focus is not on the actual act of suicide.
o Court looks at the nature of the “relationship” between the decedent and the military itself at
the time of the incident, and finds:
 The suicide occurred in his residential building on the base
 He was on active duty
 He was experiencing emotional problems that developed shortly after he had enlisted
(suggesting, perhaps, a connection between the military and the motivation to commit
 He deliberately avoided seeing the Navy and DOD personnel who came to help him
in the course of the military related duties.
o The court here holds that the government’s argument is a winner.
- Government immunity waived
- Majority
o Takes issue with recognizing a new, general duty
o More appropriate for legislative determination
- Dissent
o Public duty = sovereign immunity
o Important function of tort law is normative
 Setting forth standards of conduct which ought to be followed
- Rest (2nd) Section 323 – one who undertakes to render services to another is liable for failure to
exercise reasonable care if
o The failure to exercise reasonable care increases risk of harm OR
o Harm is suffered because of the other’s reliance upon the undertaking
- Firefighters negligently failed to use the sprinkler system of a building on fire, fighting the fire with
hoses instead.
- Court says city was not immune since the “negligent conduct that caused the fire to engulf all the
plaintiff’s building was not founded on planning or policy considerations.”
- Held, this is not protected by the state’s discretionary immunity, because although there were
choices and in that sense discretion, there was no choice among policy judgments.
- State officers and employees (here, surgeons at a state-run hospital who operated on a state prison
inmate) are immune from section 1983 liability.
- Plaintiff fails to prove that they violated a constitutional right that was “clearly established.”
- Plaintiff failed to make such a showing, leaving the defendants immune.
- This case illustrates how difficult it is to win a case of this kind and how broad the qualified
immunity sweeps as currently applied.
State and Local Governments
- Governmental immunity applies to local, state and federal government.
- Government is immune from liability unless it has given permission to be sued (e.g., state
legislation, Federal Tort Claims Act)
Carriers and Host-Drivers
- Common carrier owes a higher degree of care.
- Both in foreseeing and guarding against danger.
- Public system not private carrier.
o Common carriers = buses, taxis, railroads, airplanes, ferries, cruise ships, roller coaster
operators, even elevator.
o Amusement park is not.
- Some courts have rejected the higher standard of care for carriers.
o Adopting the general negligence standard.
- Uber considered public. (The minute you rendered payment)
Guest Statutes
- 1920’s-1930’s: states passed “guest-statutes”
o Requiring a guest passenger in an automobile to prove gross negligence in order to recover
from the host-driver.
- Ala. Code:
o If you don’t pay me to drive, you then I am not liable.
o Higher burden on the passenger to prove breach of duty of reasonable care.
 That it is willful, wanton misconduct
o Rule favor the driver and at that time drivers are not common (rich people).
- Invitee who goes outside the area of his invitation = a trespasser or licensee.
- Gladon was outside the scope of invitation, he was a trespasser or licensee (to whom the duties are
the same).
- Trial court erred in giving the ordinary care instruction.
o No duty to use care to discover a trespasser and
o No duty of ordinary care arises as to a trespasser until the landowner is on notice or knows of
his peril.
- Court said there might be enough evidence for jury to find for the plaintiff.
o On the ground that the train’s speed met the wanton standard and
o Whether the operator was on notice from sight of a tennis shoe that someone was on the track
in time to avert the impact by ordinary care.
Trespassers are persons whose entrance upon land is unconsented to or unprivileged.
o A landowner owes no duty of care, except to refrain from wanton and willful conduct
causing injury (majority).
o A landowner owes a duty of ordinary care if he knows trespassers frequent an area of his
land, such as a footpath (minority).
Invitee is a person who is on the premises for the benefit of the owner (usually a business purpose (customers,
service calls to your house), or a person who is on premises generally held open to the public (e.g., a shopping
mall, park, open house).
o Invitees are owed a duty or ordinary care by the landowner.
 To keep the premises in a reasonably safe condition
 Includes warning about dangers that are known to defendant or should be known to
o Florida includes social guest under this.
Licensee is a person who is on the premises with permission, but who does not qualify as an invitee.
o In some states, a licensee is owed the same duty that is owed to a trespasser (none)(must
prove willful or wanton);
o Other states impose an additional requirement on a landowner to warn licensees of any
hidden/concealed dangers unknown to the plaintiff which the defendant has actual
knowledge of.
o Some states have social guest here – a licensee and therefore owed the lesser duty of care.
- Attractive nuisance doctrine
- Adult who attempted to rescue a child from an attractive nuisance assumed the status of the child
and was owed a duty of ordinary care by a property owner.
Child trespasser – Landowners:
- Foreseeable to landowner/possessor that Children would trespass.
Condition would create unreasonable risk/harm to child
Foreseeable that child would not be able to appreciate danger of the risk
Cost-benefit analysis (burden of elimination v. likelihood of harm danger)
Fails to use reasonable care to eliminate danger to protect child
Homeowner owns the duty of reasonable care
*if not apply the law has to prove willful, wanton, negligence
- Raise questions of policy and justice
o Radical view – landowners’ rules simply intend to protect the landowner, even if he is at
o Moderate view – rules are intended to protect the landowner from the vagaries of the jury,
but not from responsibility for fault, and that the rules are designed to let judges decide fault
rather than juries.
o Another view – rules are needed to provide a basis for meaningful adjudication.
- Rowland holds a simple view:
(1) The rules lead to wrong results and
(2) The rules are too complex compared to a simple assessment of negligence
- Court have eschewed the common law rule of premises liability and held that a landowner owes duty
of care to all persons who enter upon his premises.
- Under old rule, landowner due a duty if wanton, and willful.
- Court here adopt new rule that landowner due a duty of reasonable care for all.
- Only certain states abolish the traditional rule. Florida still uses the traditional law.
- Other courts have only abolished the distinction between licensees and invitees, maintaining that no
duty is owed to trespassers.
- In CA. if landowner is due to a standard of reasonable care to all the no need for attractive nuisance.
- Rowland said that landowners of ordinary prudence do not vary their conduct based on the status
category of entrants onto the land.
- But Scurti takes the exact opposite view as a basis for adjudication.
- Scurti court – status on the land is a factor affecting the decision – maker’s judgment about what
constitutes reasonable care.
o This seems to be an application of the reasonable care under the circumstance’s rules, with
trespass as one of the “circumstances.”
o The fact that an entrant had no permission or limited permission may still be relevant to the
issue of foreseeability.
** Florida is still traditional. **
- Open and Obvious Rule
- The rule barring recovery against landowners for obvious dangers is often framed as a no-duty rule,
both about invitees and licensees.
- Where a danger would be obvious to a person of ordinary perception and judgment, a landowner
may reasonably assume that a visitor has knowledge of it and, therefore, the landowner is not
required to give any further warning.
o Assumption of the Risk is an affirmative defense.
- A harm may be open and obvious, but nevertheless the land possessor can anticipate harm to others
from it, despite the obviousness.
- A paramedic rushing to rescue a critically ill patient, may be appropriately watching the patient, not
the ground for impediments.
Recreational Use Statutes
- Most states have enacted statutes that provide some immunity to a landowner from suits by nonpaying recreational users
o Must voluntary assume the risk.
 A recreational user can be a person who is swimming, hunting, or camping on private
 The theory behind the statutes is that it encourages landowners to make land available
for recreation.
 A much less duty of care unless gross negligence.
- Some courts have held these statutes unconstitutional on equal protection grounds.
Landlord’s Duty to Tenants
A wide variety of exceptions:
(1) A lessor is liable for injuries to his tenant or his tenant’s visitor if the lessor contracts to repair defects.
(2) A lessor is liable if, knowing of a defect at the time of the lease, he conceals it from the tenant, who
cannot reasonably be expected to discover it.
(3) The rule is also inapplicable where the land is leased for public use.
a. Example; a lessor who leases a building as a dance hall may be liable for injuries.
(4) A lessor is liable for negligently made repairs.
(5) A lessor is liable for premises that are under his control.
a. This applies to the common areas in an apartment building.
Common Law/ Traditional Rule of Non-Liability – 5 factors:
(1) Contract
(2) Owner’s knowledge/concealed
(3) Public use of premises
(4) Common areas
(5) Negligent repairs
- Minnich rejects the firefighter’s rule, holding that South Carolina has not and does not “single out
police officers and firefighters for discriminatory treatment.”
- Court reviews 3 rationales for the rule barring firefighters’ recovery for injuries sustained in the
performance of their duties, and finds them all lacking merit:
o The firefighter was a licensee on the land to whom no duty of care was owed.
o The firefighter assumed the risk.
o Public policy disfavors liability.
 Policies include:
 That liability for injuries is properly borne by the public, not the individual
property owner;
 That injuries are often unforeseeable because firefighters enter property at
strange times and in places off-limits to the public; and
 Because the public already compensates firefighters for confronting dangers,
landowners would be paying “multiple penalties” if they had to compensate
injured firefighters.
Duties of Health Care Providers
The SOC in Medical Malpractice Actions
WALSKI V. TIESENGA (1978) - (cut nerves in voice box)
- Plaintiff has to establish the “medical standard of care” by proof of what the relevant medical
community holds to be acceptable practice
o Expert testimony required
 Unless within common knowledge of laypersons
o Personal opinion of a medical expert is not sufficient
- Court recognized the common knowledge or gross negligence exception that jurors can decide
without medical knowledge
o The hospital rule: medical care of hospitals must meet the standard required by regulations
and licensing standards and
o The drug rule: warnings and instructions accompanying drugs established the standard for
their use and administration.
VERGARA V. DOAN (1992) – (negligent birth)
- Local medical standard is explained and then ultimately rejected
- Court adopts something like a national standard
- National standard for nationally certified medical providers
- Medical community rule may be stated in its three basic forms –
o “same” community
o “same or similar” community, and
o The general or national standard
Read p.350
- Held to standard of nurses in similar practice.
- The rules in the most states is that pharmacist owe their clients no duty to warn of side effects, that
the physician has prescribed an excessive dosage or that a drug is contradicted, even though the
patient may be seriously injured if the prescription is filled.
HIRPA V. IHC HOSPITALS, INC (1997) – (Utah case, delivered and died)
- Good Samaritan statutes give physicians (and sometimes others) immunity from liability when they
act negligently in an emergency.
- Rationale is to encourage aid by eliminating the requirement of reasonable care.
The Reasonable Prudent Professional
- Objective standard
- The reasonable prudent professional in the same or similar circumstances.
- “Professional”?
o Person belonging to a learned profession or whose occupation requires a high level of
training and proficiency.
Informed Consent
- Two tests of informed consent.
o Materiality test – patient focus test (reasonable – objective test- causation) Majority (a duty
to disclose information)
o But for test: if the risk is disclosed the plaintiff would have not undergone the surgery (a RPP
 Laypersons can determine without the expertise of a physician.
 Nature of patient’s condition
 Nature of the probability of risks involved
 Benefits to be reasonably expected
 Inability of the physician to predict the rules
More common test
 Customary practice standard
o Physician only discloses information to patient that is customary to
 Overlooks the purpose of requiring disclosure.
- Opposite view, holding that there is no liability unless the doctor fails to disclose things that would
be disclosed by the relevant medical community.
- Customary practice standard justifications
o Because this is professional malpractice and the professional standard must be used
o Because there might be therapeutic reasons for withholding information
o Because since the plaintiff must produce medical testimony on other issues.
- What information must be provided?
- The doctor was required to warn of risks of the procedure. However, the doctor’s own success rate
(or lack of success) was not a risk related to the procedure.
Cardozo – “Every human being of adult years and sound mind has a right to determine what shall be done with
his own body; and a surgeon who performs an operation without his patient’s consent commits an assault
(battery), for which he is liable in damages.”
- If there is consent analyze under negligence rule. If not consent then under Cardozo, go to
intentional torts analysis.
“Informed consent doctrine”
o Physician required to inform patient about treatment protocol, available alternatives and
collateral risks
o Requires full disclosure of all material risks
o Negligence action
o Burden of proof on plaintiff to prove action
o Policy concerns?
Affirmative defenses available
o Also known as exceptions to duty to inform
 Common knowledge
 Therapeutic privilege
 Emergency
o Burden of proof on defendant to plead and prove
Reasonable physician would
disclose (slight majority)
Reasonable patient would want
to know (minority)
Objective causation
Reasonable patient would decline
treatment (majority)
Subjective causation
This plaintiff would have declined
treatment (minority)
The NO duty to act rule
It means “doing nothing”. “nonaction”, or “nondoing”
What’s so importance about nonfeasance?
o If nonfeasance is involved, there’s a good chance that you won’t be able to sue, or if you do,
you’ll lose.
Nonfeasance is distinguished from misfeasance (act negligently).
Liability exists for misfeasance negligence, but not for nonfeasance.
The general rule of law is that one person owes no duty to another person to take active or
affirmative steps for the other’s protection.
If someone takes affirmative action in a negligent manner, then usually you can sue.
- Defendant’s former boyfriend accidentally shot himself in her trailer home, and died later from his
- “A party does not have an affirmative duty to aid or warn another person in peril unless the party
created the danger or the two people had a special relationship that society recognizes as
sufficient to create the duty.”
B.R. V. WEST (2012)
- For a duty to exist on the nonfeasance, plaintiff needs to show a special relationship, contract, or
public policy
- If I swing a stick on a crowded sidewalk and put your eye out
o My misfeasance itself founds the duty
o I can’t claim that I had no duty because I had never met you before and had no special
relationship with you.
Exception to Nonfeasance:
(1) A person who knows or should have known that his conduct, whether tortious or innocent, has caused
harm to another has an affirmative duty to render assistance to prevent further harm. If such duty is
breached, liability exists.
(2) If a person has created an unreasonable risk of harm, a duty of care arises to use reasonable care to
prevent the harm from occurring.
(3) A duty will be imposed if a statute says so
- The court first holds that neither of the young men nor their father could be liable for providing
alcohol as social hosts were simply excluded from liability by Illinois law.
- The court then holds that the young men undertook to aid her and were under a duty because of that
undertaking to exercise reasonable care. Whether they did would be for the jury.
- If you do something that is in itself harmful, preventing aid from others, for example, you have acted
affirmatively and you are liable if that is negligent.
Special Relationship
- The Restatement expressly set forth seven types of relationships that require the use of reasonable
care for one’s safety, including reasonable affirmative efforts to rescue. They are:
o Carrier-passenger
o Innkeeper-guest
o Landowner-invitee
- What the basis of the driver’s duty would be?
o 1st exception to nonfeasance – he caused harm
- What the basis of the passenger’s duty would be?
o If they did not cause the injury initially (indeed, one passenger was asleep when the original
wreck occurred), what’s the trigger of their duty?
 Court is less than crystal clear, although morally it seems certain: “given the
circumstances, the imposition of a duty upon defendants does not offend notions of
fairness and common decency and is in accord with public policy, which encourages
gratuitous assistance by those who have no legal obligation to render it.”
 So, what circumstances seem most important?
 Court says the defendants “were far more than innocent bystanders or
strangers to the event”
 Court says that the instrumentality of injury (the car) was operated for a
common purpose and the mutual benefit of defendants
 All defendants acquiesced in the conditions that may have helped created the
initial risk and subsequently those conditions that further endangered the
victim’s safety.
 Courts points out that the defendants had a kind of special relationship to the
incident itself.
- Special relationships are an exception to the “no duty to act” rule and create a duty to aid in times of
- There is a clearly recognized duty of every person to avoid any affirmative acts that may make a
situation worse.
- If one attempts to aid another and fails to use reasonable care in connection therewith, the person will be
held liable.
- If the defendant affirmatively acts to administer aid but then discontinues the aid, liability will exist only
if the defendant has left the victim in a worse position.
- Even if a special relationship exists, there may not be liability if the affirmative acts of the defendant
placed the victim in no worse a position than before the defendant acted.
Affiliated FM Ins. Co. v LTK consulting Services, Inc.
 Services provided by contract and a tort duty of care
 Supreme ct. applies “independent duty doctrine”
o Ask whether the injury “traces back to the breach of a tort duty arising independently of the terms of
the contract.”
 Court looks at if there is a duty, what care is required, and to whom.
 Contract law is about protecting the parties ‘expectations and distributing risk of law.
 Tort law is about promoting physical safety.
 The harm that occurred was a fire to a public train.
 Court concludes that good public policy supports assigning engineers a duty of care.
 Court finds that sms interest are property interest (rather than economic interest), AFM may claim repair
damages as well as damages for consequential losses.
Langlois v. Town of Proctor
 Tort duties can be based on an undertaking
 Where a party undertakes a service necessary for physical wellbeing of person or property, and causes
physical harm to the other by increasing the risk of harm or by the others reliance on the undertaking,
tort liability is established.
 But when only economic loss is risked, a different rule typically applies.
Diaz v. Phoenix Librixation Services, Inc.
Confining the duty of the scope of the undertaking.
The issue here is the scope of the undertaking
Scope of the undertaking by contract significantly influences the scope of the duty.
If jiffy lube had changed the oil in a careless way or not checked the tire pressure (items within the
scope of the contract), Jiffy Lube might well have been liable to the plaintiff if its failure of care
increased the risk or if plaintiff had relied on Jiffy lubes reasonable care.
Palka v. Servicemaster
 Risk to foreseeable third parties.
 Servicemaster would have no duty to the plaintiff apart from its contract with the hospital.
o Yet it is held liable
 It took affirmative steps in the performance of its contract (but not evidently in making the fan safe)
Florence v. Goldberg
Special relationship and reliance.
The police had taken on a specific duty, not merely a general duty to the public.
D having undertaken protection results from the plaintiff’s reliance on the undertaking.
Duty is derived from “taking charge” of another who is helpless to protect himself adequately and liability
results if D acts negligently in taking charge or in discontinuing g aid.
o Reliance must mean choice or at least awareness by the plaintiff or someone acting for the plaintiff
o Plaintiff recovers because his parents knew of the guard, could have escorted him themselves, and relied
on the guards’ presence.
Iseberg v. Gross
 Universally accepted rile: “a private person has no duty to act affirmatively to protect another from
criminal attack by a third person absent a ‘special relationship’ between the parties.
 He claimed that he was an agent of the defendants.
o Court rejected his invitation to enlarge the list
Posecai v. Walmart stores
 When does a business (as invitor) owe a duty to protect customers (invitees from attacks by other on its
 Ct. finds the mere existence of a clear “special relationship” (invitor invite)
 Insufficient in the absence of the foreseeability of an unreasonable risk of harm
 Iseberg is the essential opposite problem- foreseeability without a special relationship. In neither case
does the court find a duty of care.
 Ct. reviews four positions that can be found in (or attributed to ) cases in various states on the “
reasonable foreseeability issue”.
1. The specific harm rule, which is not somewhat outdated.
a. A landowner does not owe a duty to protect patrons from the violent acts of a third parties unless
he is aware of specific, imminent harm about to befall them.
b. Courts have generally agreed that the specific harm rule is too restrictive in limiting the duty of
protection that business owners owe their invitees.
2. A prior similar incident test, which can lead to arbitrary results
a. Foreseeability is established by evidence of previous crimes on or near the premises.
b. It is applied with different standards regarding the number of previous crimes and the degree of
similarity required to give rise to a duty.
c. This view leads to litigation over what incidents are sufficiently similar.
3. The totality of the circumstances test, which tends to place a greater duty on business owners to foresee
the risk of criminal attacks on their property.
a. This method takes additional factors into account, such as the nature, condition and location of
the land, as well as any other relevant factual circumstances bearing on foreseeability.
b. This is the most common approach used in other jurisdictions
c. This approach has been criticized, however as being too broad a standard, effectively imposing
an unqualified duty to protect customer in areas experiencing any significant level of criminal
4. A balancing test seeks to address the interest of both business proprietors and their customers by
balancing the burden of harm against the burden of imposing a duty to protect against criminal acts of a
third persons. (just to see if there is a duty)-balance test of duty after a breach of duty till have to do the
hand test.
a. In determining the duty that exist, the foreseeability of harm and the gravity of the harm must be
balanced against the commensurate burden imposed on the business to protect against that harm.
b. That way, in cases where there is a high degree of foreseeability of harm and the probable harm
is great, ( balance) the burden imposed upon the defendant may be substantial.
c. Alternatively, in case n which a lesser degree of foreseeability is present or the potential harm is
slight, less onerous burdens may be imposed.
The balancing test is the best method for determining when business owners owe a duty to provide security for
their patrons. Posecai v. Walmart stores, inc
 Schools share a special relationship with students entrusted to their care, which imposes upon them
certain duties of reasonable supervision
 Where the principal or superintendent knows or should know that a particular school employee poses a
threat to a student, entrustment of the student to the care of that employee will not satisfy the duty of
reasonable supervision
 Employees with supervisory powers of hiring and firing might be liable for negligent hiring or retention
of a person they knew or should have known was an abuser, and in this type of action the reporting
statue would be applicable.
Ward v. Inishmaan associates
 General rule L “landlord have no duty to protect tenants from criminal attacks”
 Whether the general rule makes good policy sense?
 2 Recognized exceptions in New Hampshire
o whether this court should have perhaps held that “foreseeability” of this particular attack, given
its knowledge of the problems with this attacker for years, should have triggered a duty.
o Defendant was under some specific duties aimed at controlling a very dangerous person
o A custodian in charge has a special relationship to the defendant and this is under a duty of care
o The custodian in charge’s duty of care ran not only to victims that might be identified in advance
but to all those who are directly and foreseeably exposed to risk of bodily harm from the
defendant’s negligence
o When a therapist learns from his patient about intent to do harm to a third party, the therapist has
a duty to take reasonable precautions given the circumstances to warn the potential victim of
o A relationship may support affirmative duties for the benefit of third persons
 For example, a hospital must exercise reasonable care to control the behavior of a patient,
which may endanger other persons
 A doctor must also warn a patient if the patient’s condition of medication renders certain
conduct, such as driving a car, dangerous to others
o Ct recognized the difficulty that a therapist encounters in attempting to forecast whether a patient
presents a serious danger of violence
o The psychiatrist who has reason to believe his patient will attack someone, must warn or
otherwise act with reasonable care for the protection of the potential victim in spite of the
therapist’s confidential relationship with the patient
o One who sells intoxicating beverages for on premises consumption has a duty to exercise
reasonable care not to sell liquor to a noticeably intoxicated person.
o Ct believed the application of the old common law rule of a tavern owner’s non-liability in
today’s automotive society is unrealistic, inconsistent with modern tort theories and is a complete
anachronism within today’s society
 Thus, one who sells intoxicating beverages for on the premises consumption has a duty to
exercise reasonable care not to sell liquor to a noticeably intoxicated person
o Even if a vendor is found to have breached its duty, P must still show the illegal sale of alcohol
led to the impairment of the ability of the driver which was the proximate cause of the injury and
there was a casual connection between the sale and a foreseeable ensuing injury
 Proximate cause is usually decided case by case, often by the jury, but in any event on the
facts peculiar to the case
 Some courts willing to impose liability upon sellers of alcohol are not willing to impose
liability upon social hosts who provide alcohol with the same results; nevertheless, a few
courts have imposed liability upon social hosts
Dram Ship Act
o A person who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a
state of noticeable intoxication, knowing that such a person will soon be driving a moto vehicle,
may become liable for injury or damage caused by or resulting from the intoxication of such ..
person when the sale, furnishing, or service is proximate cause for such injury
Chapter 19, IIED
o A party is liable for intentional infliction of emotional distress only if the party’s conduct is so
outrageous and extreme that it goes beyond all possible bounds of decency and is regarded as
utterly intolerable in civilized society.
o General rules of liability for intentional infliction of severe distress by outrageous conduct
o New York standard differ than the restatement
o The totality of his behavior carried out over a substantial period of time that makes this
sufficiently outrageous
o The power Shields holds over these employees
o Abusive behavior toward a stranger might be different
Intentional or reckless standard from the restatement is widely cited and followed
o Markers of outrage:
 Most common fact patterns involve conduct that is:
 Repeated or carried out over a period of time
 An abuse of power by a person with some authority over the plaintiff; or
 Directed at a person known to be especially vulnerable
o Conduct directed at one person causing distress to another person or to one not present
o Restatement second section 46, requires the plaintiff be
 Present and
 Either
 A family member of the victim
 Suffer bodily harm from the emotional distress
 Exception:
 Terrorism, so extreme and outrageous
 Zone of danger, you can recover
 Emotional harm directly inflicted on the plaintiff
 We now shift from intent and recklessness to negligence (NIED)
 If the horses had run over her – she would have been permitted to recover for that
physical harm and also for any pain and suffering and emotional distress. That is the
parasitic damages rule.
 A standalone claim for NIED is not being allowed by Mitchell; rather, the P must show a
physical injury (as in virtually all of the negligence cases we’ve seen in the course up
until now) caused by D’s negligence
 Note: Development of a stand-alone claim
 Emotional distress resulting from injury to another. “Bystander” case
 The zone of danger test
 Requires P to prove that he was “immediately threatened with physical injury”,
and he did not prove that
o He admitted “he was not in immediate danger” and assumed the jet ski
would turn away and avoid the collision. The girl who was struck 61 feet
away from Catron’s boat
The father isn’t a direct victim because, unlike Stacy, his fear was not for his own
Neither can he recover as a bystander because he is not a close family member of
the victim
Special bystander rules
How it contrasts with Catron’s rule, you can ask whether Mr. Catron (previous case)
could perhaps get to the jury under Dillon?
3 factors of foreseeability:
 Whether the plaintiff was located near the scene of the accident as contrasted with
one who was a distance away from it
 Whether the shock resulted from a direct emotional impact upon the plaintiff from
the sensory and contemporaneous observance of the accident, as contrasted with
learning of the accident from the others after its occurrence
 Whether plaintiff and the victim were closely related
 Presence of all above factors indicated that plaintiff has alleged a sufficient prima
facie case
Answer is maybe. He would have the first two factors
On the third, he would have to show a “close relationship”. This might be difficult to
show, but a flexible approach leaves it as a possibility
However, if the approach to this last factor is a bright-line, hard and fast rule requiring a
familial relationship, as in some cases, Mr. Catron would definitely not be permitted to
get the jury
He is not closely related to the primary victim
 To whom is the duty owed?
 A doctor-patient relationship
 A doctor owes the patient a duty of reasonable care not to cause her either physical or
emotional harm
 She was a patient in burgess because the burgess facts involved delivery of her child; she
and the child were both patients
 But if the father who is not a patient claims emotional harm for the child’s injury, he is
merely a bystander and he must meet whichever rule the jurisdiction adopts for bystander
 He must be aware of the injury at the time it occurred in a Dillion-Thing
jurisdiction, or
 Be within the zone of danger in a Catron-type jurisdiction
 Misinformation to the plaintiff: negligent misdiagnosis
o Boyles v Kerr
 Truthful information about the plaintiff
 A reckless infliction case or an invasion of privacy/breach of duty of confidentiality
 Leave D without liability insurance coverage and hence leave P with an
uncollectible judgement
 Probably why the P’s lawyer tried hard to make a case for negligent infliction – so
the D’s liability insurance for negligence would apply
Class notes nov 6, 2019
 Physical manifestation or injury rule will no longer be followed
 Negligent infliction of emotional distress claims should be analyzed under general
negligence approach,
 Plaintiff must present material evidence to each element of negligence
 Eliminates any requirement of impact, sudden event or shock, physical risk, and physical
manifestation of emotional harm
 D was negligent in creating a physical risk to the plaintiff, although it turned out that the
risk to herself and her ultimate death is what triggered the plaintiff’s emotional harm, not
risk to the plaintiff
 Where Boyles rejects any general duty and even any duty arising out of the special
relationship of Boyles and Kerr, Camper posits a duty to protect against emotional
distress that, as formulated, seems indiscriminate in its breadth.
 Fear of future harm after toxic exposure; causation
 Whatever the court does in this present case, it might still permit a suit later for physical
harm damages if cancer actually occurs
 D has created a physical risk to the P, which so far has brought about no physical harm,
but has caused emotional harm in the form of fear
 In courts that no longer require manifestation of physical harm or symptoms, you’d
expect Ps to recover, at least if their fears were reasonable
 Not the Potter court’s rule
 D is merely negligent in subjecting P to toxic exposures, P cannot recover for fear
of a future resulting disease unless that disease is more likely than not to occur
o Expert testimony would probably be required to prove future disease
 This is the court’s rule even though the plaintiff’s fear is entirely reasonable
o Intent
 Specific intent; or
 General intent; or
 Recklessness
o Act
 Extreme and outrageous conduct
o Causation
o Injury
 Severe emotional distress (limited to what a reasonable person would suffer)
o Traditionally: 18th century rule: emotional distress must be parasitic to another tort
 Ex: Wilkinson, practical joke that husband was dying. Emotional damages parasitic to
 Parasitic – stems from, derives from
o Modern rule: Section 46, “extreme and outrageous” conduct “intentionally or recklessly” causes
“severe” emotional distress
 It must be purpose and/or knowledge or intentional or reckless
 There must be severe emotional distress
 The conduct must be extreme and outrageous
 The plaintiff must suffer actual damages
 Third parties may or may not apply
 Depends on who they are
 Presence
 3RD Party claim- family members must be present to recover damages or a
stranger was presence – need to show bodily harm
o Differences IIED v Other Intentional Torts
 Transferred intent does not apply to IIED (or conversion)
 No nominal damages can be recovered in IIED
NIED (Negligent infliction of emotional distress)
o Traditional rule: (18th century): negligent act must lead to physical harm, then to emotional
injury to be recoverable
o New York Rule: negligent act can lead directly to emotional injury, but must be evidenced by
physical injury
o Modern Rule: No physical injury is required
 Ex: Dillon v Legg, mother allowed to recover for witnessing daughter’s accident because
she was foreseeable class of victims. Test is 1) proximity to accident, 2) whether directly
witnessed injury, 3) closely related. Narrowed by Thing v LaChusa
 Foreseeability is determined by close relation, physical proximity, if plaintiff observed
the accident
o “Eggskull” doctrine applies when plaintiff is in foreseeable class of victims if the defendant
know of the plaintiff’s sensitivity. (its different from not having to know of the sensitivities. If
the D doesn’t know, then not liable)
o (Apply only modern theory on her exam, UNLESS she says otherwise on exam)
Chapter 21: Wrongful Death
Courts here distinguishes among three “distinct claims”:
 Loss of consortium
 Survival actions; and
 Wrongful death actions
The latter two claims (our focus here) are statutory
Court quotes the North Dakota survival statute first, and points out that the plaintiffs did
not seek recovery under that statute
Plaintiffs do state a claim under the wrongful death statute, since they are entitled to sue,
and persons entitled to recover
Wrongful death and survival actions
 Wrongful death statute creates a new claim in favor of designated survivors, such as
children, spouse, or parents, for their losses resulting from the decedent’s death
 Survival action merely continues whatever claim the decedent had at the moment of his
death, such as his claim for pain and suffering and the damages are payable to the
decedent’s estate
 Is not limited to harms that result in death but includes any tort claim that the
decedent could have pursued during the decedent’s lifetime
Survival actions
 Cause of action survives death of either party
 Not new cause of action
 On behalf or against decedent’s estate
 Distinct from WD action
Liability turns on whether the doctor was negligent
A jury, which returned a million-dollar verdict, determined that he was
State statute permits only the first three items of damage and punitive damages where
Statute expressly bars recovery for hedonic damages
Court agreed with D and found that the instructions allowing recovery for the “value of
life” to have been erroneous
Court also objected to statements made in the P attorney’s closing argument alluding to
the value of the decedent’s life
Two measures of the loss of projected lifetime savings of the deceased
 Loss to survivor’s measure
o Originally limited the recovery to pecuniary losses suffered by dependents
or those who would inherit
 Loss to estate measure
o Might allow substantial damages even where the decedent was not
contributing to the support of others
o Allows recovery for whatever sums the decedent would have earned and
saved in her normal lifetime, even if she was supporting no one
Three basic kinds of non-pecuniary loss might be claimed in death actions are:
 Punitive damages
 Damages for the mental anguish or grief of survivors
 Loss of consortium (can include):
o Loss of companionship
o Loss of services
o Loss of guidance
Two measures mentioned above require the court to estimate the earnings the decedent
would have had but for the death
 Most statutes designate classes of beneficiaries, such as children, parents, heirs or the
like; sometimes there is a preferred class, then a second class that can share if there are no
members of the first class
 Although damages are usually calculated by determining the support lost, the statutory
beneficiaries may not be the persons who lost the support
o For example, suppose that the statute designates “child or children, if any” as the sole
 Then parents if there are no children
 Decedent, aged 50, has two grown, self-sufficient children, but she supports her 75-y/o
 It is plain that the financial loss resulting from decedent’s death will be borne by
the mother, not the children, but it is also plain that the statute gives the award to
the children
o For example,
 The decedent was a five y/o child. His grandmother sued for his death, but both parents
were living and the statute authorized suit only by parents
 The court rejected the grandmother’s argument “that she was entitled to bring this
wrongful death claim because she was the child’s ‘psychological’ or ‘de facto’
It is generally held, notwithstanding the care and support of a child, a person
standing in loco parentis is not a child’s father or mother for purposes of a
wrongful death action”
 Both mother and fetus were killed. The father, normally the sole heir, was unknown
 Rather than giving no one at all the right to sue for recovery, the majority of the
court held that the grandparents could sue since there was no means of identifying
the “heir”
o Defenses to wrongful death are “too straight forward, read them from the book”
Jennifer’s husband (Drew) is killed in an accident caused by Luis, whom she sues for
wrongful death. Before the action comes to trial, she remarries and take the name of her
new husband (Felipe). Her marriage to Felipe is a very happy one. When the wrongful
death action for the death of her 1st husband (Drew) comes to trial, Jennifer legally
changes her name back to her 1st husband name for the purposes of the trial itself. Her
attorney files a motion of limine with the trial court to prevent opposing counsel from
mentioning the name change. Keeping in mind that only relevant evidence is admissible
at a trial, should the judge grant or deny Jennifer’s motion? Explain your position.
 Motion is granted – Bell Aerospace Co v Anderson 478, sw. 2d 191 (Texas CT Of
Appeal, 1972 )
Chapter 22
A. Respondeat Superior
B. Independent Contractors
- Why is the employer vicariously liable for the torts of the employee?
o Employers might reduce accidents if liable.
o It is desirable to spread the costs of injury to the community and this can be done by holding the
employer liable, who in turn will pass it to the community in the form of higher prices.
o The employer has control of the employee and so should be liable for his torts.
o If the employers work is being done it is fair, semble (it seems), that the employer be liable for
the torts.
o The employee may not have assets and the employer is more likely able to pay.
o Inevitable losses caused by a business are properly considered expenses of the business and
should be charged to it; in turn, it can increase the price of the product.
- Focus on the going and coming rule
- These facts convince the court that the going and coming rule should not be applied.
o Employer benefits from reaching out into a distant labor market.
o Employer pays for the travel time
o Travel increases risk on the highways
- Are these facts relevant to any reason for liability?
o If I hire a consulting engineer from Japan, who must fly to the U.S. to examine my project, I may
benefit from his travel, but why does that mean his travel torts are my responsibility? And true,
travel increases risks, but not necessarily unreasonably.
o In Hinman, travel by a skilled worker might be safer overall than using local, unskilled labors to
construct elevators. Payment for travel time might be more convincing: that suggest that the
employer and employee themselves regard the travel time as work time.
o In omitted material, Hinman in fact relied on a theory that the master and servant implicitly
agreed to continue employment during travel.
- Hinman parallels the problem in which, in workers’ compensation, is called the “course of employment”
o “course of” problem relates to time, place and circumstance; has the job started and not ended?
- Gatzke parallels the problem which, in workers’ compensation, is called the “arising out of
employment” problem.
o “arising out of employment” problem has a more qualitative component; in fact, it resembles
strongly the issues associated with scope of the risk.
- Purely person acts, even when carried out during employment hours are not acts arising out of
employment, but purely personal acts that are incidental and concurrent with employment duties (such
as smoking) do not take the employee outside employment.
- Can an employer be vicariously liable for an employee’s intentional tort?
 Tort must have had “a causal nexus” to the employee’s work.
 Foreseeable?
o “an employee’s conduct is not so unusual or startling that it would seem
unfair to include the loss resulting from it among other costs of the
employer’s business.”
o Court created two-pronged test
 The conduct of an employee falls within the scope of his or her employment if the
conduct either
 Is required by or incidental to the employee’s duties, or
 It is reasonably foreseeable in light of the employer’s business
Respondeat Superior
- Is Latin for “let the superior make answer.”
- An employer can be held liable for the wrongful acts of its agents or employees when those acts are
committed within the scope of the agency or employment.
o What’s that?
 The scope of an employee’s employment extends to cover the reasonable and foreseeable
actions engaged in by the employee in carrying out and furthering the employer’s
- Imposes liability whether or not employer was itself negligent, and whether or not employer has control
of the employee.
- Comings and goings exception
- “Frolic and detour” exception
Independent Contractors
- Whether Clar Pine can be vicariously liable for Petullo’s negligence
o Was the petullo company an independent contractor, as opposed to an employee of Clar Pine?
 Looked at restatement 2nd of agency factors, which include:
 The extent of control which, by the agreement, the master may exercise over the
details of the work
 Whether or not the one employed is engaged in a distinct occupation or business
 The skill required in the particular occupation
 Whether the employer or the workman supplies the intrumentalities, tools and the
place of work for the person doing the work
 The length of time for which the person is employed
 The method of payment, whether by the time or by the job
 Whether or not the work is a part of the regular business of the employer
 Whether or not the parties believe they are creating the realtion of master and
 Applying multi-part test
 Right to control the details of the work (note 2) is the key to the analysis
 Clar Pine lacked the right to control the manner in which petullo did its work
 Look at 3 main exceptions
 Whether this case falls within an exception
Independent Contractors
- No vicarious liability for torts of IC’s
- Except for non-delegable duties (rest 2nd)
o Making or repair of instrumentalities used in highly dangerous activities. (Liable = subject to the
same liability for physical harm caused by the negligence of the contractor in constructing or
maintaining such instrumentalities….)
- Qualifying Animal Activity
- Causation
- Harm
- “Wild animal”
- Strict liability does not = absolute liability
o Limited to harm characteristic of wild animal of that class
o Defenses
 Assumption of Risk
 Contributory negligence/ comparative fault
- House of Lords – natural v. non-natural use of land
- Exchequer chamber – “anything likely to do mischief”
- Defenses:
o Contributory fault
o Unexpected act of God
(1) Liability without fault was part of the historical heritage from English law.
(2) Brown v. Kendall wanted to diverge and require some showing of fault before holding someone liable
for harm to another.
a. Plaintiff must prove that the Defendant was at fault or was negligent in order to recover, even in
(3) Rylands v. Fletcher – if you brought something onto your land that could do mischief if it escapes, then
you are liable if it does escape – at least ig you were engaged in non-natural use of your land.
- The invasion must be “substantial” to be a nuisance at all, and it must be unreasonable in the sense that
it interferes unduly with the Plaintiff’s rights.
- Nuisance law is rarely strict liability today
- Liability is often negligence-based.
- Plaintiff’s house was severely damaged by the blasting activities of the Defendant.
- Sued on two theories: negligence and strict liability
- Trial court relying on older Maine precedent, held that strict liability was not a viable theory, and
granted summary judgment on the ground that negligence was not proved
- Court here adopts for the first time (in 2009) the restatement seconds imposition of strict liability for
abnormally dangerous activities, and applies it to the defendants blasting
Restatement views:
“ultrahazardous” -1st
“abnormally dangerous” – 2nd and 3rd
Copy strict liability elements from ILS – restatement second of torts
Restatement third of Torts
Plaintiff must prove:
- Defendant’s activities create a reasonably foreseeable risk of physical harm
- The risk is a significant risk
- The risk remains even when reasonable care exercised
- The activity is not a matter of common usage
- Defendant is in control (main participant)
Strict liability is different than negligence) even if no fault can be strictly liable.
A.Injuries caused by animals
-RTT- An owner of livestock or other animals that intrude on another person’s land “is subject to strict liability for physical harm
caused by the intrusion.”
•Cows, horses, sheep and others.
•If on a public road which is used to transport his anima will not be liable.
B.Abnormally Dangerous Animals
RTT- Limited Liability for the owner or possessor of an animal that has “dangerous tendencies abnormal for the animals’ category”
•If and only if the owner knows or has reason to know of the animals abnormally dangerous tendencies and liability attaches only “if
the harm ensues from that dangerous tendency.
C.Wild Animals
Strict liability is imposed for all damages done by wild animals such as bear, Tigers, lions.
-Distinguishing Wild from domesticated
is it “devoted to the service of mankind” eg. Bees, bulls, and stallions.
Abnormally Dangerous Activities
Factors to determines Abnormally dangerous activities
•High degree of risk: existence of a high degree of risk of some harm to the person, land or chattels of others.
•Risk of serious harm: likelihood that the harm that results from it be great.
•Cannot be eliminated even by due care: inability to eliminate the risk by the exercise of reasonably care.
•Not a matter of common usage: extent to which the activity is not a matter of common usage
•Appropriateneness: Inappropriateness of the activity to the place where it is carried on.
•Value: extent to which its value to the community is outweighed by its dangerous attributes.
RTT- reduces the factors… Ask dai which to use?
1.The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors.
2.The activity is not one of common usage.
Must still prove
-Factual cause
-Proximate Cause
Manner in which It occurs:
•Can potentially excuse from strict liability if
oIt’s an intervening act of god.
oPlaintiff, Knowingly, and voluntarily and unreasonably subjects themselves to the danger. (contributory negligence jurisdiction)
oComparative negligence will decrease it by the amount which the person is found negligent or careless