GOWDER, TORTS
Goals of tort law:
● 1. Deterrence and Accident Prevention
● 2. Compensation
● 3. Economic Efficiency
● 4. Administrative Efficiency
● 5. Fairness
Elements of Negligence Case:
● duty, breach, causation, scope of liability, damages
Elements of Strict Liability Case:
Parties/transactions subject
I. NEGLIGENCE
Duty of Care
Foreseeability is an essential component
 D owes a duty of care to all reasonably (objective/reasonable person standard) foreseeable Ps for
all
 Duty is usually question of law; foreseeability is usually question of facts
How careful do you need to be?
 If you are creating a hazard (Weirum v. RKO General, Inc.) vs. the hazard being
incidental (Kubert v. Colonna, where D sent a text, and even if she knew he was
driving, had no “knowledge or special reason to know” that D would actually read the
text while driving)
 If reasonable foreseeability that you could incite a third party to act negligent, you could have a
duty to not act
 Duty
when pressured to accede to criminal’s demands (Boyd v. Racine Currency Exchange teller
didn’t give the criminal money and criminal shot patron)
 foreseeability alone does not impose duty
 businesses do have duty of reasonable care of invitees’ safety and must take precautions
 when in an actual situation, however, individual is not obligated to accede
 if it encourages criminal behavior (policy)
 if it does not (disabled man case), D could be held to have a duty
 Do we want to give businesses incentives to accede to hostage takers. NO.
 if there is no guarantee criminal will do what he promises by acceding
 Court asks the question weirdly: didn’t need to say duty to accede to hostage takers.
 balance of proprietary interest vs. interest of human life (bowling alley case)
 Q1: were they negligent in how they communicated the policy and trained the
employee. Respondeat superior; premised on whether the employee was negligent.
Duty to rescue (105)
Rule: An affirmative duty to act only arises where a special relationship exists between the parties.
 generally no duty to rescue (head in puddle example)
 exception if there is special relationship; “person has custody under circumstances where P
deprived of normal opportunities to protect himself”
 no exception if D did not: hold power over P’s welfare or receive financial gain,
and P either: would not reasonably expect any protection or reasonably should be
aware of the dangers (Herman v. Harper boatowner didn’t warn about shallow
water). Was there a duty to inform harper?
 Violation of relational expectations?
 possibly friends (Farwell v. Keaton drunk fight; guy left in backseat)
 exception when you create the harm: defendant caused peril.
 Some jx say only if you were negligent. Motion in limine- something you don’t want to
get in front of a jury for long enough.
 some jx say even innocent behavior obligates you (South v. Amtrak train driver didn’t
want to get blood on his jacket, so didn’t cover up P)
 exception for psychotherapists – they must warn third parties who might be in danger from
one of their patients
 always duty to avoid affirmative acts which may make the situation worse
 starting, then stopping aid (by starting, you discourage others from helping)
 gross negligence in assisting
Good Samaritan Laws
 for those that try to “rescue”, they will not be held liable for further harm unless they act with
gross negligence
some states cover strangers; some only medical personnel
 transporting likely to be immune from suit (Swenson v. Waseca Mutual lady hit by semi
turning around, after helping injured snowmobiler)
 four states have compelled Samaritan laws – must render aid in some circumstances
Policy Implications
● A - Allocation of loss (compensation)
● Fair - Fairness
● D - Deterrence or Accident Avoidance
● E - Economic Considerations
● A - Administrative Concerns of Courts
● L - Legislative Considerations
Standard of Care
The measure of duty owed by the defendant
Reasonable Person Standard
● Reasonably prudent person in the same or similar circumstances
● Objective standard, community-based standard
● No special jury instruction for superior skills & abilities, physical conditions that can be objectively
perceived, sudden emergencies
Sudden Emergency Instruction
● Combo of circumstances that calls for immediate action or a sudden or unexpected occasion for action
● Not chargeable with negligence if exercises degree of care that a reasonably careful person would have
exercised under same/similar emergency circumstances
● Fact finder excuses a defendant's failure to obey law when confronted with an emergency not of the
defendant's own making
Physical Disability
● Reasonable person with the same physical condition under same or similar circumstances
● Neither a higher nor lower standard than the reasonable person standard; it is just a different standard of
care
Mental Disability
● Held to same as reasonable person without mental disability
Child Standard
● Children required to exercise the same care that a reasonably prudent child of the same age, experience, and
intelligence under the same or similar circumstances
o Exceptions: Inherently dangerous activity; adult-only
Custom
● Deviation from known and well-established custom (or custom that should have been known) can be
evidence of breach
● Compliance with custom can be evidence of lack of breach
● Show the harm custom developed to avoid is same as Ps harm
● Useful in Hand’s formula
● Never conclusive evidence of breach except in medical mal cases
Negligence Per Se
● 1. Is P within the class of persons who the statute was designed to protect?
● 2. Did P suffer the harm the statute was intended to protect against?
● Negligence per se jurisdiction -statute sets the standard of care; presumption of negligence may be
countered with an excuse
● Some evidence jurisdiction- standard of care remains reasonable person; statute is admissible for breach
Breach of DoC (135)
Breach - matter of fact
Baseline Case: What would an ordinary person have done? Was the risk unreasonable?
UNREASONABLE RISK
 Not every foreseeable risk is an unreasonable risk. It does not suffice to establish liability to
prove (a) that defendant owed plaintiff a duty of reasonable care; (b) that an act or omission of
defendant was a contributing cause of injury to plaintiff; and (c) that the risk of injury should
have been foreseeable to defendant.
Reasonable Person Standard
o Breach is... failure to act like a Reasonable Person under the same or similar circumstances would
o If the defendant is less careful than the reasonable person would be, then the duty of care has
been breached.
o Objective standard: Nothing with subjective state of mind of the actor, no character concerns,
direct focus on conduct. Basically, strict liability for everyone all the time.
v. Retrum: situation in which all the elements of a negligence cause of action are present except for
breach of the duty of care.
 Rogers
 Breach
Analysis: Among the considerations in our breach analysis: the power of judges in a
common law system to make these special policy rules.

In Vaughan v. Menlove, D argued he was using best judgment when leaving hay near
neighbor’s property (which ended up catching fire and burning P’s cottages down), but
judge instructed jury to use objective (reasonable person) standard
 although designed to be objective, it can be what’s reasonable within that
community – jury (of peers, i.e. community) would have made a judgment on what
they considered a reasonable person (Vaughan v. Menlove, the local community at the
time probably understood the propensity of damp hay to catch fire, but doubtful 12
bigwig CEOs would, especially in this day and age)
 Policy reasons for using reasonable person include:
o letting people know what the law expects, so they can act accordingly
o it ties up the court system less (thus less money, and more efficiency)

A sudden mental aberration can be an excuse to not find breach; (Breunig v. American Family
Insurance Co. lady had known schizophrenia, and had a hallucination (Batman) while driving)

However, if the person has foreseeability of reasonable risk (e.g. you knew for years you have
epilepsy and attacks can come on at any time, if you have one while driving and cause damage)
you likely breached your duty (Breunig v. American Family Insurance Co.)
o Policy: if there are two “innocent people”, who should bear the loss?
Negligence Per Se (166)
 using standard of care from a statute or regulation
 give P “free pass” on the element of breach of the duty of care
 can be used if it passes the “class-of-risk/class-of-person” test”
 does the injury fall under the kind of risk the statute was designed to cover
 does the plaintiff fall under the kind of persons the statute was designed to protect
 in Gorris v. Scott (sheep falling overboard), P sued under Contagious Disease
Act – CoP was met (animals {or people who owned animals, i.e. Gorris}),
but CoR was not – the Act was designed to protect against animal exposure
to disease, and more so to protect people of UK from infected animals
coming into the country
 for it to work, not only must D have committed it, but there has to be direct causal
link between committing it (breach) and the injury.
Custom: the habitual way of doing things (in a community)
 can be evidence for the jury (of what reasonable person would’ve done), but IS NOT
dispositive
 in T.J. Hooper the bargemen’s custom was not using radio receivers, yet they
were still found negligent, since a reasonable person would say they
should’ve had them (they were cheap and would’ve been the difference in
injury being caused)
 a practice that is customary tends to show that it is a practicable and well-known means
of reducing risk
 Res Ipsa Loquitor (“the thing speaks for itself”)
P can prevail on the breach element, by showing that EVEN THOUGH he can’t prove
how D was negligent (no specific evidence), it was obvious the D was negligent
SOMEHOW (Byrne v. Boadle falling barrel case).
Res Ipsa Loquitur
● goes a step beyond constructive notice in that it permits, in limited circumstances, the jury to infer the
defendant’s unreasonableness/ negligence from circumstantial evidence
● 1. Applies in cases where the plaintiff cannot allege what the defendant did wrong (no evidence of the
negligence, but the injury couldn’t have happened without it)
● 2.The accident does not normally happen without negligence, defendant exclusively controlled the thing,
and the plaintiff did nothing to contribute
● 3. Exclusive control is shown by plaintiff eliminating other explanations
● 4. Method 1 + defendant has greater knowledge of what caused the harm than plaintiff
● NOTE: Effect of RIL evidence differs by jurisdiction
● If P establishes elements of RIL → burden of proof shifts to the D, who will have to prove that one of the
elements has not been truly established OR that they exercised due care
 Two
requirements (194)
 accident was likely negligence (i.e. likely a breach of the duty of care)
 accident was likely the conduct of the defendant
 in some (stricter) courts, there is a third requirement – proof that the instrumentality of
harm was under D’s exclusive control
 also, must not be due to voluntary action on part of P – in Grajales-Romero v.
American Airlines, Inc., Grajales’ friend did pull on the
ashtray which caused the countertop to break and the sign to fall, but (reasonably
speaking) pulling on the ashtray should not have caused the other things, thus there
was some kind of negligence on the part of AA – takeaway? the test is not whether P
took any voluntary action,
BUT whether that voluntary action can be blamed for the accident
 Recurrent RIL situations:
 gravity-driven injuries (barrel or light falling)
 airplane crashes
 packaged food (exploding Coke bottles)
 daycares and nursing homes (where infants/elderly may not be able to speak for
themselves)
 Learned Hand’s Negligence Formula
Balancing Test: B< PxL
▪ Burden of the harm (B) is less than the probability of that harm happening (P) x the magnitude of
the the likely harm if it occurs (L)
▪ B = costs of avoiding harm, feasible alternatives, inconvenience, societal value of the activity
▪ **Policy big here!!
o Untaken Precautions
▪ Plaintiff can show there were feasible, safe alternatives that would have avoided the accident &
wouldn’t be too expensive/ prohibit the defendant’s otherwise useful conduct
 United States v. Carroll Towing Co.: likelihood and potential loss from barge breaking free is significant.
High risk of loss multiplied by gravity of loss is less than the burden of hiring bargee
o Policy: Will this rule be better for society because it provides incentives to act in a more optimal way?
▪ Strong liability rules/low bars for negligence can lead to too much care
o Reasonable Costs and Benefits
▪ R2T §291: An act is negligent if the risk outweighs the utility of the act
▪ Utility – social value, extent of chance that interest will be advanced by the particular course of
conduct vs. alternatives
▪ Magnitude of risk – social value imperiled, extent of chance conduct will cause an invasion of
interest, extent of harm to be caused, number of people at risk
Special Rules for Landowners and Occupiers (210)
 Applies to landowners and occupiers (i.e. renters are liable for the condition of property they
are renting)
 Undiscovered/Unanticipated Trespassers
 owner/occupier has no reason to expect person to be on the property (e.g. thief)
 owed no duty
 Discovered/Anticipated Trespassers
 owner/occupier knows or expects person might be on the property (e.g. people
habitually cut through the yard – even if owner hasn’t seen, but there’s a wellworn path indicating it)
 Children, aka attractive nuisance doctrine
 Can’t
 does
be expected to protect themselves.
not actually need to attract/lure
 duty to remediate a dangerous artificial condition on the land capable of
causing death or serious bodily injury, so long as the condition can be
remedied without imposing an unreasonable burden on the
owner/occupier
 key addition: danger need not be concealed to trigger the duty
 key addition: warning signs are not an easy way out of liability
 Licensees
 default category of nontrespassers – generally people on private property with consent
of the owner/occupier (friends and family)
 owed duty to warn of or try reasonably to make safe concealed hazards that are known
to the owner/occupier
 compared to dis/ant trespassers, this adds: danger need not be artificial; danger
doesn’t need to be threat of serious injury or death
 Invitees – highest duty of care owed to them. Essentially business uses- has them on the land
for their own gain.
 people who are allowed to come on land to conduct business related to
owner/occupier’s business or members of the public on land held open to the
general public
 some jurisdictions include police, firemen, and mail carriers, even when in private
homes
owe a duty to adequately warn of or render safe concealed hazards AND to make a diligent effort to
inspect for unknown dangers (i.e. affirmatively go out and look for hazards)
 Categories can apply to different parts of the same property
 in a store, if customer does not purchase something, he’s still an invitee
 – e.g. in Campbell v. Weathers D tried to say that Campbell was perhaps an licensee to
the business, but a trespasser to the hallway/bathroom within the business
Actual Causation (225)
Cause in Fact
 Standard of evidence is “preponderance of the evidence” (more likely than not)
 Actual Cause: But-for causation ("sine qua non")
o Would the p have been injured if d had acted with the care he was duty bound to act with? “But
for the defendant carelessness the injury would not have happened”
But-For Test
● But for the D’s breach of duty, would the harm have happened?
● P must establish by a preponderance of the evidence that but for D’s culpable conduct or activity the
plaintiff would not have been injured
● R3T §26&27 - argues that courts have misapplied the substantial factor test
o Abandons substantial factor language in favor of but for test
Substantial Factor Test
● Used in situations with multiple parties/causes
● Neither party or cause is the “but-for” cause
● P only has to show by a preponderance of the evidence that D materially contributed to the plaintiff’s injury
● California - substantial factor test its exclusive test for causation
● Majority rule o Use the but for and substantial factor test OR
o Uses the substantial factor test alone
o R2T used substantial factor test and defined it to incorporate but for test
Evidence
● P is going to need to show a “preponderance of evidence” either that:
o But-for: but for D’s negligent conduct P would not have been injured or
o Substantial factor: D materially contributed to P’s injury
● To show connection between act/negligence and harm, P can use direct evidence, circumstantial evidence,
expert testimony
● Such that D now has the burden to present countering evidence on causation
● **try to consider how many other causes P has to rule out to raise question of fact for jury
Joint & Several Liability
● All D’s are equally liable for all of plaintiff’s damages
● Note: P may not receive more than 100% of any damages awarded
● Policy - P usually assured to receive full share of a damage award
● 3 context where courts apply
o Where D’s act in concert
o Where D’s are in an employer-employee or principal-agent relationship
o Where D’s independent acts cause an injury that cannot be divided
● Problem - One D could end up paying more than their fair share of a damage award
o Solution - comparative fault/ hybrid J&S liability models
Alternative Liability
● Multiple negligent D’s, only one could have caused the harm, and the P through no fault of his own can’t
prove which D caused P’s harm (Summers v. Tice)
o D’s sued together → burden of proof shifts to them to prove they are not the cause-in fact
o If can’t do so → J&S liable for plaintiff’s injury
● Requirements for Alternative Liability
o 1. Each D must have been negligent
o 2. Responsible parties are in court
o 3. Harm must have been caused by only one defendant’s carelessness
o 4. Relatively concurrent/simultaneous and similar acts by each D
o 5. P must be unable to show which Defendant caused the harm
o 6. Ds have better access to information
o 7. There must be some sort of relationship among the D’s
Market Share Liability
● Generally, only for unreasonably dangerous products; for suppliers of defective products where P can’t
prove which brand she used
● Requirements for Modified Alternative Liability
o (1) Injury/illness caused by fungible product made by all Ds
▪ Virtually identical products, equivalent risks of harm
▪ Need a singular risk factor
o (2) Injury/illness due to design defect, each D sold same type of product in manner that made it
unreasonably dangerous;
o (3) Inability to identify specific manufacturer that caused P’s injury;
o (4) Enough parties in court to represent a substantial share of the market.
o you are liable for the percentage of your market share
o When to apply?
 Causes

are necessary, but not necessarily sufficient to create the injury
 But-for test – would the injury have occurred without the breach of duty?
 Look to court’s meaning rather than words, when they talk about causation – sometimes they say
“proximate cause”, “cause” (mix of direct and
proximate), “causation-in-fact” (synonym), “factual causation” (synonym), “direct causation”
(synonym), but reasoning implies they mean actual causation
Unlimited amount of Actual Causes – e.g. your mother giving birth was in the line of events
that led to you running over a guy (but proximate cause will help avoid these silly things)
 Plaintiff can sue any and all causers

If breach was a substantial (as opposed to a mere possibility) cause of increased risk of
harm (as opposed to an obvious cause of a harm itself), and the harm actually happened,
it’s up to the jury to determine if the “loss-of-a-chance” was substantial, i.e. caused the
harm
Beswick v. CareStat
 D’s breach of duty to not respond [due to not having a certified ambulance crew] increased
the odds of P’s husband dying enough to cause the death, despite him only having a 34%
chance of surviving even without their breach)
there are two questions present here
 is the reduction a cause (i.e. substantial factor)
 is the reduction an injury (i.e. is lessened chance of survival an injury)
 what is the harm caused by the breach
 “substantial factor” ginormous cop-out- beg the jury.
 death itself (Beswick court said this; “Multiplicity” Issues (247)

Multiple necessary causes
 (multiple actors breached, leading to harm)
 Each one in the chain can be held liable – in Jarvis v. J.I. Case Co., where there was a
pipe/backhoe explosion, P sued the pipe maker, the solvent (used on the pipe) maker, the
backhoe manufacturer, and the backhoe’s engine manufacturer – all were necessary (but-for)
causes of the harm
multiple sufficient causes (269)
 exception to “but-for” test, but actual causation test will be considered met
 generally each of the original causers can be held fully liable individually (i.e. they don’t
necessarily just split the cost of damages)
 shifts burden of proof from plaintiff to defendants
Pokora v. Wabash Railroad Co.
 Reversed Holme's logic in Baltimore
 An individual approaching a railroad track in a private car is not required to stop, get out of the
car, and look for oncoming trains before crossing the track if doing so is not customary and may
ultimately be more dangerous.
Kingston v. Chicago (270)
 When two or more human entities both proximately cause injury to a plaintiff, and only one is
identified, the plaintiff may recover the full amount of damages suffered from the one known
wrongdoer.
Merged Tort (merged fires) where two actual causes (each of which could breach duty of care) would each
have caused injury, but they came together before causing the injury – fires or
perhaps chemicals in a lab
 each cause needs to substantially contribute
 if one of the causes was overwhelmingly “bigger” than the other, the (much)
lesser causer may be found not liable – e.g. small fire but exploding nuclear
plant “swallows” if one of the causes was “natural”, the man-made causer may
be immune to liability
Tice Doctrine (aka “Uncertainty Tort” (Summers v. Tice)
 where two guys shot at their buddy – where at least one of multiple people that acted
negligently are responsible for injury, but we can’t tell which one(s) for sure
 shifts burden of proof to defendants, which is fairer to the plaintiff
 One but for cause, we don’t know which though.
 Joint Tort (aka “concert of action”) – Ds working together; collective action was but-for
cause (e.g. two people operating a machine)
Market-Share Liability
 Each D could be made liable for a portion of P’s damages corresponding to the D’s share of
the market (Sindell v. Abbot Labs, where DES was marketed by 200 companies illegally and
caused cancer in the womb) – like Summers, but a big group of potential Ds
 only applies to D’s who had a “substantial” portion of the industry
 negligence
vs. causal connection between negligence an injury
e.g. In Iowa, physicians typically provide data for specific causation
(causal connection – did toxin cause the harm P suffered), while
epidemiologists provide it for general causation (do such toxins create that
type of harm negligence)
 Enterprise Liability (aka industry-wide liability) – industry wide standard is
established by an industry, and all parties hold to it (usually only works with small
industries, e.g. 6 blast-cap companies) – all D’s control the risk (i.e. custom)
 What if the negligent act was the standard of safety? Becomes a joint tort then.
 Shifting what counts as the negligent act back. HERE it doesn’t apply though.
Herskovitz v. Group Health Coop (297)
 In a wrongful death action, proof that the defendant’s conduct increased the risk by decreasing the
chances of survival of a plaintiff is sufficient as to the issue of proximate cause.
 Causing reduction of the opportunity to recover (loss of chance) by one's negligence, however, does
not necessitate a total recovery against the negligent party for all
 298 damages caused by the victim’s death.
Even if the original chance of living is less than 50%, a jury could still find causation if dr.’s
actions were a substantial factor in the death
 for policy reasons, doctors shouldn’t be able to use this excuse or else they
could be as negligent as they want where patient had less than 50% chance
 Multiple Sufficient Causes:
 The p must prove that d’s negligent conduct probably would have been sufficient by itself to cause the
injury
 Converging fires burning down a house, both can be held jointly liable.
 Alternate Liability
 Summers: Information forcing device: The defendants may have more info about who actually caused
the injury so let them litigate about who will pay the damages.
 NESS- Necessary Elements of a Sufficient Set
 This person could be deemed to be a cause
 If satisfied you can say they are sufficient causes
 But they would never be liable for all of the damages
 You would only be responsible for part of the damages (several liability)
 Multiple Necessary Causes:
 But for the driving of A the injury would not have occurred AND
 But for the driving of B the injury would not have occurred
 It’s a way to hold defendants liable when there are multiple necessary actors
of action:
 Two people drag race and one car hits a pedestrian both parties can be held liable
 Enterprise Liability:
 all are behaving in the same way producing a product
 Like concert of action
 They can be held jointly liable
 Preemptive Cause:
 If two acts were sufficient in and of themselves but one action occurred 1st then only the 1st action/actor
is liable.
 A driver hits a pedestrian and kills them, a second driver hits them but theyre already dead.
 Joint and Several Liability:
 If the injury is indivisible and there are multiple defendants it will be joint and several liability
 Jury can apportion fault but the defendants can still be held jointly and severally liable
 Some states have hybrid statutory schemes that make smaller contributors severally liable and some
larger contributors jointly and severally liable.
 Concert
Scope of Liability (Proximate Cause)



Proximate Cause:
o First it was “natural and ordinary cause” then it moved to a “directness test” but now we have the
Palsgraf theory.
o Test: What is the foreseeable scope of the risk that you are taking with your careless behavior?
(kind of a duty test)
o Question to ask: Is the injury within the foreseeable risk created by the defendant’s actions?
o you owe a duty to people that you may foreseeably harm.
In Palsgraf, majority said it was a matter of duty – the guard could not have foreseen the
danger, so he had no duty to protect D from said
danger. The dissent said it was a matter of proximate cause – if a person performs an act that
unreasonably threatens the safety of others, the person is liable for all proximate
consequences, thus if an act sets of 10 weird coincidences that cause injury (i.e. the injury or
weird consequence could not have necessarily been foreseen), he proximately caused it with his
first act (i.e. harm in general could have been foreseen)
Foresight Test
● Steps
o 1. Unforeseeable P?
▪ Was class of persons including the P within the scope of risks created by D’s negligence?
o 2: Unforeseeable consequence?
▪ Was the result within the scope of risks created by D’s negligence?
o 3. Intervening force?
▪ Was the intervening act a foreseeable risk of the original negligence?
● Exceptions (always foreseeable)
o Eggshell or thin-skulled P rule
▪ If P is a hemophiliac and your negligence harms her, you need to pay for all of it
o Negligent rescuer rule
▪ Good Samaritan tries to help an injured guy hit by a negligent car driver. Good Samaritan ends up
making things worse. Original car driver is still liable (negligent rescue is foreseeable)
Objects of Foreseeability
 unforeseeable plaintiffs – generally if the plaintiff is unforeseeable, then proximate causation
will not be satisfied
 unforeseeable type of harm – no general rule; case-by-case
 unforeseeable manner of harm – generally does not preclude recovery (on p.c. basis), unless
manner was truly extraordinary
 unforeseeable extent of harm – generally will not preclude recovery (on p.c. basis)
Superseding Cause:
o Variety of proximate cause analysis
o Series of negligent acts that follow each other in time, the later person’s negligence will
"supersede” the others liability
o Exception not the rule!!!
o Normally either criminal or reckless acts! But the usual example is when it’s very unforeseeable.
o A very high standard!!! Store owners have been held responsible for criminal acts that occur in
their parking lots.
Intervening/Superseding Force
 If 3rd party intervening act was not foreseeable = superseding cause and D is not liable (act and not
subsequent result)
 Superseding Cause Test
o An intervening act is not a superseding cause breaking the causal connection between negligent
conduct and resulting injury if it was:
 (1) reasonably foreseeable and
 (2) a substantial factor in bringing about the harm
 intervening cause that breaks the p.c. chain
 standard varies widely between courts, but…
 some general observations can be made
 negligence is normally not superseded by someone else’s negligence
 medical malpractice` (including ambulance accidents) is a recurring example – Dr.’s
negligence doesn’t get the original actor off the hook, because medical negligence
is a foreseeable possibility when someone gets injured’
• Minor injury turns into major injury, we have prox cause issue. Was
the negligent medical treatment sufficiently unforeseeable?
 Also,
intervening

exception is criminal behavior (unless the criminal behavior could’ve been reasonably
foreseen – exception to the exception); in Brauer v. New York RR, court ruled held that train
station guards should’ve protected wrecked horse and wagon’s cargo that was stolen by
criminals, which almost feels like duty (to rescue) as opposed to p.c.

On exam discuss policy and foreseeability, then discuss how courts may address an
issue as duty and as proximate cause – something that may help separate

if you read exam question and start thinking about foreseeability of plaintiff, then
duty; if you start thinking about foreseeability of event, then proximate cause.
McLaughlin v. Mine Safety Appliances

the fireman gave heating blocks to a nurse who burned a child.
 D was found not liable, because they could not have foreseen that the firemen they trained
would (negligently) let someone else use them with no guidance oversight (thus the fireman’s
negligence broke the p.c. causal chain).
 Another court may have found that D training people on use of the heat blocks, meanth they
knew there were risks – some courts will allow reasoning, but some won’t (because policy
might say that then manufacturers will stop giving training which would be a negative)
Nallan v. Helmsley-Spear (384)
 it was foreseeable that a guard not being present when he was supposed to be (negligence)
could result in criminal behavior happening
 despite the unforeseeability of a man being shot, general criminal behavior could’ve been
foreseen – this was enough for this court to rule p.c. met
 whole point of the guard was to prevent the harm – his absence (negligence) therefore was a
p.c. of the harm
 the court found it foreseeable that a guard not being present when he was
supposed to be could result in criminal behavior happening can be depending on
the situation –
Risk Principle / Third Restatement
● Liable only for injuries within scope of risk that made D’s act tortious
● R(3)T § 29: An actor's liability is limited to those harms that result from the risks that made the actor's
conduct tortious
● . Consider:
o (1) Full range of harms risked by the D’s conduct that jury could find as basis of D’s breach
o (2) Compare that with the plaintiff’s harm – overlap?
● Lack of any foreseeable risk implies no breach
● Accident from risk not in foreseeable scope of risks - not within scope of liability
Injury (Damages) (394)
 Also
called damages – be careful because damages could mean the injury or the award amount
Factors a court might consider
 whether P was near the scene of the accident, as opposed to a distance away
 whether
the shock resulted from a direct emotional impact upon P from P’s
direct observation, as opposed to hearing about it after the fact
 whether P and victim were closely related, as opposed to absence of relationship, or distant
relationship
 Later, CA SC (who had originally laid down the first 3 factors above) added:
The victim suffers serious emotional distress, beyond that which would be
anticipated in a disinterested witness, and which is not an abnormal
response to the circumstances
 Not just economic damages
 if it accompanies physical damages, then possible
 some exceptions
 a few courts have allowed particular foreseeability – D could’ve foreseen the
economic damage to P – e.g. railroad that caught fire and forced evacuation and
shut-down of airport; airport’s damage was particularly foreseeable to RR
(although airport customers’ were not)
 accountants – varies by jurisdiction
 attorneys – clients, as well as non-clients in the case of a will (because the nonclient suffers the economic damage; the client is dead and obviously can’t sue for
negligence)
Affirmative Defenses to Negligence (400)
Contributory Negligence (largely abandoned)
● P’s negligence completely bars recover for D’s actions
● P’s negligence must combine with defendant’s negligence; it is not sufficient that P failed to do something
wholly independent of the defendant’s conduct
● In english common law if the P was even partially negligent he could not recover from D, even if D was
negligent.
o This is still the case in 5 US jurisdictions: Al, DC, MD, NC, VA
●
Comparative Fault
● Pure: damages reduced by the % the jury assigns to P’s negligence
● Modified, 49% Rule: P can recover only if neg. is less than D
● Modified, 50% Rule: P can recover only if neg. is less than or equal to D’s
● NOTE: walk through negligence analysis as we have done for the defendant- standard of care, breach, cause
in fact, scope of liability
Express Assumption of Risk / Waivers
● Plaintiff consciously appreciates and knows of a particular risk; voluntarily encounters that risk; risk
encountered needs to be the one the plaintiff appreciated and knew of
● Express Assumption: complete defense, no recovery
o Accept responsibility and relinquish right to sue (waiver)
o doesn’t extend to liability release for recklessness, intentional torts, etc.
o Must meet both Tunkl factors & Specificity requirements
● Tunkl Public Policy Factors – waiver violates public policy?
o (1) Business generally thought suitable for regulation
o (2) Providing service/matter of great importance/practical necessity
o (3) Offered to the general public
o (4) Advantage of bargaining power
o (5) Standardized contract of adhesion
o (6) Person/ppty. placed under control of services furnisher
Implied Assumption of Risk
● Primary Implied (complete recovery bar)
o P assumed the risk by partaking in the activity and the organizer has no duty
▪ ex: getting hit by a fly ball in Wrigley Field)
o (1) injurer has no duty at all; or
o (2) injurer has no duty to take precautions to prevent a risk that is “inherent” in the activity = obvious
and necessary
o Policy: It is a good thing to go out and take risks, but you shouldn’t be able to sue if something goes
wrong.
o Primary implied assumption of risk: Decision to do something that is inherently risky ie. Pick-up sports,
skydiving, rock climbing
o Secondary implied assumption of risk: Someone is being careless but you choose to encounter the risk.
Ie. Getting in the car with a drunk person,
● Secondary Implied
o No breach - D wasn’t unreasonable, P’s behavior
o What we think of more intuitively as AOR
o (1) knowledge: P knew of specific risk
o (2) subjectively appreciated/comprehended nature and extent of the risk; and
o (3) voluntarily expose herself to the risk
Policy Considerations - Why Different than Negligence?
● No fault
● Fairness (especially R3T)
● started as no fault standard
● R3T - negligence reintroduced into SPL
● Non-reciprocal nature of risks - asymmetry b/c D’s conduct endangers P; P’s conduct doesn’t endanger D
● SL for high risk activities to reduce frequency
● Greater incentive for actors to prevent accidents - incentive to relocate, change, or reduce the risky activity
● Responsibility fixed where it will most effectively reduce hazards
● Sued retailer can seek indemnification from manufacturer
II.
Strict Liability:
 Created by statute so it takes precedent over common law rule.
o One common example is dog bite statutes: Pingaro
 Analysis of breach and fault are not required.
 Injury and Actual/Proximate Cause still matter
 Abnormally Dangerous Activities (6 factor test): Restatement §520
o Existence of a high degree of risk of some harm to the person, land, or others
o Likelihood that the harm that results from it would be great
o Inability to eliminate the risk by exercise of reasonable care
o Extent to which the activity is not a matter of common usage
o Inappropriateness of the activity to the place where it is carried on
o Extent to which its value to the community is outweighed by how dangerous it is
 It is not necessary that all of the factors be present for strict liability, the most important question is
whether the risk created is so unusual, because of its magnitude or the circumstances around it, as to
justify strict liability
 Cases:
o Rylands v. Fletcher
 Owner of property decided to create a reservoir on the property, the water that was
accumulated ran through unused/abandoned mineshafts and flooded them. This case is
famous for taking a concept that is famous for wild animals (strict liability) and extending
it to include creating a force that can be injurious and that presents a risk of being
unleashed and is not a natural creation
 Policy: Performing party essentially assumes liability because potential injured parties are exposed to
involuntary, non-reciprocal risks; some things risky even if done reasonably – want people to think
about risks & create good incentives (not defense to say couldn’t do it more safely)
Products Liability
 The old law required “privity of contract” to be able to sue someone for a defective product. In the
modern world and supply chain this way of thinking did not protect consumer
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Mention: Defendants want risk/utility test (burden to show safer design on p) and plaintiffs want
consumer expectations (what is contemplated by the consumer?)
Products Liability Prima Facie Case:
a. P suffers an injury (same as in negligence)
b. A sold a product
c. A is a commercial seller of such products
d. At the time it was sold by A, the product was in defective condition
e. The defect served as an actual and proximate cause of P's injury
Defects:
a. Manufacturing Defect:
 A lemon – not made to the specification
 Closest to strict liability
b. Design Defect:
 Specifications themselves result in unreasonably dangerous product
 Consumer Expectation Test: (2nd Restatement)
 §402(a) a condition not contemplated by the ordinary consumer which will be
unreasonably dangerous to him.. to the extent beyond which that would be
contemplated by the ordinary consumer with common knowledge
 This is preferred by plaintiffs – only matters what the consumer thought
 This makes sense because it wouldn’t be good policy to just outlaw all dangerous
products -- you want to respect the market idea that you want a range of products
at different price points that you can buy. When you buy certain products you can
be aware that it may be more dangerous than the alternative. You don't want to
stifle the range of products available to consumer
 Not the preferred test in 3rd restatement
 Risk-Utility Test
 Preferred by defendants
 Burden on the plaintiff to show a reasonable alternative design (3d.
Restatement)
 Assess risk utility under foresight rather than hindsight
 Risk of physical injury balanced against the utility of the particular design
 Wade factors is one way to do this test:
 Utility to public
 Utility to user
 Likelihood to cause injury
 Availability of safer design
 Possibility of redesign that is safer but still functional and reasonably
priced
 Awareness of danger that can be attributed to the user
 Manufacturer’s ability to spread cost of safety-related design changes
 Defenses to design defect:
 Assumption of risk
 Comparative fault – most states
 Unforeseeable misuse – most states call this a variety of
comparative fault
c. Failure to warn:
 Two categories:
 Warnings about the nature of the danger
 Adequate in both content and presentation
 Must cover foreseeable misuses
 Should have known and didn’t provide adequate warning.
 Instructions for safe use
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III.
Must be specific enough for reasonably prudent person to follow
Must warn of consequences if not followed
 Learned intermediary:
 Sometimes it is sufficient to warn a knowledgeable person who will be an
intermediary
 Assumes the intermediary can be counted on to pass the info on. (doctors)
 Plaintiff must show the warning would have been heeded!!
 Heeding presumption – defendants have the burden to provide evidence that is
would not be followed.
Escola v. Coca Cola Manufacturing:
o The majority decided the case on a res ipsa loquitor theory, but it clearly was stretching to do so.
In a concurrence Justice Traynor used a products liability theory.
o The better rule is that a manufacturer incurs absolute liability when an article that he has placed
on the market, knowing it is to be used without inspection, proves to have a defect that causes
injury to human beings
o Better protection for consumers, manufacturer can spread the costs more efficiently.
Greenman v. Yuba Power Pods:
o By placing a product on the market, a manufacturer becomes strictly liable for a defect in the
product that causes injury to the ultimate user of the product
o Opinion picked up and taken by the restatement: Instantly became popular: The courts were
ready for this change.
INTENTIONAL TORTS (566)
Battery
1. act
2. intent
3. harmful or offensive
4. touching of P