TORTS OUTLINE FALL 2021
1. Overview of Liability
1. Fault (mental culpability)
■ Culpability of fault (from hardest to assert/prove to easiest)
■ Malice, ill will
■ Intentional wrongdoing
■ Intentional
■ Intentional wrongdoing
■ Reckless Activity
■ Negligence
■ Lack of reasonable care
■ No fault (Strict Liability)
■ Even when defendant is guilt of no fault
■ A defendant must allege elements in the complaint to win
■ Van Camp takeaway: fault is a necessary element in a claim
■ Every jurisdiction cannot sue child under 4 for fault based
tort
2. Exceptions to fault
■ Strict liability
■ The idea of liability without fault
■ Something happens and you are automatically liable and
responsible
■ Children
■ children under 4 are not held liable. (4 and up are liable)
■ For other kids, court will examine what a child should know given
age, life experience, and circumstances.
■ Mentally Handicapped
■ Mental Handicap (Alzheimers, Dementia, Retardation) does not
excuse a defendant for actions.
■ A jury must look at what a mentally handicapped person should
know or what they were capable of knowing.
2. Strict Liability
1. Affirmative defenses can apply to strict liability AND negligence
■ Some animals
■ Wild animals
■ Any animal or reptile not usual or normal to the area in
question
■ Lions, bears, tigers, etc.
■ No matter how much care, the owner can be liable
■ Limited to the harm that results from a dangerous
propensity that is characteristic of wild animals of the
particular class; OR
■ Of which the possessor knows or has reason to know
■ Domestic (dogs, cats)
■ Old rule: one free bite; now owner on notice
■ Now: if animal has a "known" vicious propensity or owner
has reason to know of vision propensity and the injury results
from that known vicious propensity (same kind of injury
feared) then owner liable
■ Check statutes as well, can impose strict liability and trump
common law
■ (i.e. for pit-bulls, Rottweilers, etc.)
■ Live stock: owner is SL for damage to crops and land (caused by
horses, cows, sheep, pigs)
■ if an animal causes physical harm to anther, owner can be
sued for negligence
■ Abnormally dangerous activities
■ R2d § 519
■ One who carries on an abnormally dangerous activity is
subject to liability for harm to the person, land, or chattels
of another resulting from the activity, although he has
exercised the utmost care to prevent the harm
■ This strict liability is limited to the kind of harm, the
possibility of which makes the activity abnormally
dangerous
■ Factors court consider (don't need all, and no one factor is
determinative)
■ Existence of a high degree of risk of some harm to the
person, land, or chattels of others
■ likelihood that the harm that results from it will be great;
■ inability to eliminate the risk by the exercise of reasonable
care;
■ extent to which the activity is not a matter of common
usage;
■ inappropriateness of the activity to the place where it is
carried on; and
■ extent to which its value to the community is outweighed
by its dangerous attributes.
■ Examples of abnormally dangerous activities
■ Manufacturing/Storing/Transporting/Using explosives &/or
highly toxic chemicals
■ Blasting
■ Pest Control/Fumigation/Crop Dusting • Activities
involving nuclear reactions or radioactivity/Hazardous
Wastes
■ Pile driving
■ Releasing poisonous gas/dust in air
■ Oil drilling
■ Activities many courts say are not necessarily subject to Strict
Liability:
■ Firecrackers/fireworks
■ Bulldozing
■ Land filling (distinguished from Lateral/subjacent supports)
■ Vicarious liability (via statues)
■ Nothing to do with respondeat superior
■ Workmen's comp – hurt on the job
■ Statutes on parental liability – responsible for their kid’s tort
■ Worker’s comp
■ Statutory law (every state has one)
■ Administrative remedy with
■ No pain and suffering
■ No punitive
■ No jury
■ Damages very limited
■ Broader than respondeat superior doctrine
■ Statutory remedy is the employees exclusive remedy
■ Spouse, children cannot sue employer on employees
behalf
■ Exception:
■ Employer commits intentional torts against
the employee, then employee can sue in
court
■ Statutes on point
■ Federal and state OSHA laws,
FELA, etc.
■ Employees working in very
dangerous environments without
safety measures/equipment
■ Can sue for battery
■ Parental liability for young children
■ Person injured by tortious action of child can sue parents
only if statute authorizes such suit
■ Statutory requirements must be met, or if parent is at fault
themselves
■ Child's tort must be committed willfully or
wantonly
■ Damages that may be obtained are limited
■ (Respondent superior) Vicarious liability via common law
■ Common law doctrine (will never see it in a statute)
■ Employee must commit a tort
■ Employee needs to commit tort in course and scope of
employment
■ Elements:
■ There is an employer/employee relationship (employee
does not need to be paid, i.e. volunteer)
■ Employee commits a tort
■ Must name the tort and prove all the elements
■ Tort was committed within the scope of employment
■ Scope of employment
■ Employee's work is within the same general kind of
authorized or expected tasks, and the employee was acting
within authorized time and space limits
■ Employee must be motivated (at least in part to serve the
interests of his employer
■ Relationship can exist without payment
■ i.e. volunteer work
■ Frolic
■ Frolic on your own, employer not responsible
■ "re-enter" employment when intent to act in
furtherance of the employers business and
reasonably connected in time/space with the work
the employee was to be engaged in
■ Other considerations
■ Going and coming rule
■ An employer cannot be held liable for an
employee's negligence in commuting to and from
work
■ EXCEPTIONS:
■ dual-purpose rule
■ If during employee's commute they
undertake an action to further the
interests of their employer, then they
are acting under the scope of
employment
■ When employer pays for your travel time
and expenses
■ Doctor on call
■ Borrowed Servant Rule
■ Multiple owners of the servant
■ Liability typically stays with first employer
but
■ Court can allow liability for both employer
and allow juries to apportion fault
■ Independent contractors
■
■
not a borrowed servant or employee
Cannot be held vicariously liable unless
■ Negligently hire a independent contractor
who is incompetent
■ Involved in inherently dangerous activity
■ Principal retains control over the details
■ Captain of the Ship Doctrine
■ Will hold the person in charge of a group of people
liable for any errors on the job
■ Typically applies to operating room
■ Doctor is captain of the ship and is
responsible and in charge of nurses helping
■ Can hold doctor liable for what the
nurses do
■ Suits plaintiff can bring
■ Options
■ Pursue action against ER only for negligence
■ Pursue action against ER only
■ Count 1 for ER’s own fault (negligent hire)
■ Count 2 for respondeat superior
■ Pursue action against both EE and ER in same
lawsuit
■ ER at fault: ER gets contribution from EE
■ ER not at fault: ER entitled to indemnification from EE
■ Strict Liability for Intentional torts
■ The employee was doing the employer's work (i.e.
bouncer)
■ Motivated, in whole or part, by a desire to serve employer's
interests (bartender gets into fight trying to manage drunk
customer)
■ Naturally grew out of/incident to the business (bouncer)
■ Casual nexus to the employee's work
■ Endangered (produced/caused) by the employment
■ Employment predictably created risk that employees will
commit intentional torts of the type at issue in the case
■ Generally foreseeable consequence (motivating emotions
fairly attributable to work related events or conditions)
■ Policy behind respondeat superior
■ Right to control the employee
■ Encourage the employer to hire the best people and stay
concerned with safety
■ Employer hired the employee
■ Compensate the victim
■ Easy for employer to spread cost through society
■ Employer more likely to be financially viable
■ Tort done while fulfilling employer’s business purpose so
this is just the cost of doing business
■ Defective products
■ Manufactures and retailers of negligent products are held strictly
liable for the harm they cause
■ Products liability - you made the product, you pay for it
■ Manufacturer can raise prices of their products to pay for strict
liability
■ Privity (relationship between user and manufacturer)
■ Not required, general users and others harmed may bring
actions
■ Theories of Recovery for Product causing injury to plaintiff:
■ Statutory Fraud (follow statute language)
■ Consumer fraud statutes
■ Deceptive merchandise practices
■ Negligence
■ Same elements, same analysis
■ Strict liability 402A
■ 401A elements
■ Defendant sells a product
■ Defendant in business of selling product of that kind
■ The product was expected to and did reach
purchaser/consumer/user without substantial change in
condition in which originally sold
■ Product was defective and unreasonably dangerous at time
it left defendant's control
■ Physical harm results to plaintiff or plaintiffs property
when product was used in reasonably foreseeable manner
■ Some have signaled willingness to expand this to
include stand alone emotional distress
■ Person harmed is foreseeable
■ The defect was the cause in fact and proximate cause of the
harm
■ SAME TESTS FROM NEGLIGENCE
■ Pure economic loss:
■ If product merely stops working
■ No tort claim
■ This is a pure economic loss situation
■ You can only pursue your breach of contract
remedies
■ i.e, breach of warranties
■ If product damages self but no other property or person
■ No tort claim
■
This is a breach of contract/breach or warranty
■ If product damages other property or causes injury to
person
■ Can bring tort claims in addition to any breach of
contract claims
■ Tort claims for us are
■ Negligence and strict liability
■ Everything discussed in negligence applies
here
■ Emotional distress claims harder to get
■ Three kinds of defects
■ Manufacturing Flaws
■ Product at issue standard, different from siblings,
not of intended design
■ Allows use of Res Ipsa circumstantial
evidence to help prove product defect
■ Test of defect: Consumer Expectations (CE) Test
■ Is it more dangerous than average consumer
using it would contemplate?
■ Food cases are also flaw cases
■ Although some courts use
natural/foreign distinction, most stay
with CE test
■ Defects in Design
■ All of the products in the line are identical.
Something about the design makes them dangerous
to the public.
■
rd
Majority/Restatement 3 . Product is defective in
design when something about that design subjects
the public to unreasonable dangers
■ The foreseeable risks of the product could
have been reduced or avoided by the
adoption of a reasonable alternative design
by the seller or other distributor
■ The omission of the alternative design
renders the product unsafe.
■ MOST: courts us Risk/Utility test
■ Virtually identical to Hand/Restatement test
from negligence
■ How likely is injury?
■ Gravity?
■ Value of product?
■ Does the value of the
products' utility outweigh the
risks of injury posed by the
product
■ Is there a reasonably safer
design?
■ Enhanced injury cases can be liable
■ Will typically need evidence that there was a
better way to make product (reasonably safe
design)
■ Informational Claims:
■ Inadequate warning, directions, instructions
marketing
■ Pretty much negligence analysis
■ Remember if danger is obvious most say no duty to
warn
■ Liriano argues that even though danger obvious,
didn't know there were alternatives (safer ways to
operate)
■ This might help plaintiff establish duty
■ BUT: watch out for "sophisticated users
(note 4 p. 791)
■ They KNOW if danger; industrial
hazard type situations – no duty to
warn
■ Includes failure to warn of danger or to advise user
how to properly use the product.
■
rd
Majority/Restatement 3 . Product contains
inadequate instructions or warnings.
■ The foreseeable risk of harm posed by the
product could have been reduced or avoided
by the provision of reasonable instructions
or warnings;
■ The omission of the instructions or warnings
renders the product not reasonably safe.
■ Numbers 2-8 of “FLAW” must be proven as
well.
■ Issues arising under warning
■ Is danger obvious? (Is there a need to warn
at all)
■ Are words sufficient? Symbols? Should
warnings be given in language other than
English.
■
Has the defendant watered down the
warning (glossed over it)
■ Is the warning conspicuous
■ Are instructions and directions provided?
■ What if the person does not read?
■ Is there a post sale duty to warn?
■ Test: risk utility test applies here too
■ Main themes on why strict tort product liability
■ Consumer expectations
■ Presence on market implies safe to use as intended
■ Fault is too hard for injured to prove
■ Encourage useful conduct and incentives to always
improve the product
■ Deters unsafe products/protect
■ Manufacturer better able to spread loss; pass on to
consumers
■ General rules to remember:
■ Must be seller (retailer, manufacturer, distributor) of the
goods of that kind
■ Homemaker makes cookies at home and brings to
school, someone gets sick
■ No liability
■ Does not generally cover used or leased products unless in
the business of selling used or leasing products
■ Design defect, R3d and Most require evidence of
Reasonably Safe Design
■ Exceptions to RSD are few and dar between
■ Product can be defective for failure to have a necessary
safety device
■ Product can be defective in design because it enhanced a
risk of injury
■ Warnings include a wide range of issues
■ Directions/instructions
■ Languages/symbols
■ Word placement
■ Don’t size/type
■ Who to warn
■ Recalls
■ Post sale warnings
■ Differences in Drugs/Medicines
■ We need drugs
■ Not each to bring design defect and warning claims
■ Flaw (actionable – proceed as normal)
■ Design—very difficult to bring
■
design flaw must be so big that no reasonable
health-care provider would have prescribed the
drug.
■ This is a big standard.
■ Warning—possible
■ a prescription drug company is liable for giving
inadequate warnings only if they do not provide
warnings to:
■ The health-care providers who are in a
position to reduce the risks (learned
intermediary)
■ The patient when the manufacturer knows
the health-care provider will not be in a
position to reduce risks.
■ Intermediaries
■ Intermediate sellers have a duty to use reasonable care not to
sell defective products.
■ An intermediate seller is negligent if he knows or has
reason to know that a product is defective, but sells it
anyway, without at least warning the customer of the
defect.
■ Defenses (same defenses seen in negligence)
■ Contributory Negligence
■ Assumption of the Risk
■ Comparative Responsibility
■ Unforeseeable Misuse (this is an intervening cause)
■ If jury finds conduct was foreseeable then defendant
does not escape liability
■ Alterations to the product.
3. Intentional Torts
1. All intentional torts (Except IIED) require intent (involves getting into the mind
of the wrongdoer)
■ Desire, purpose, want; OR
■ Know with substantial certainty of risk
2. Motive is irrelevant
3. Children over 4 can be liable
■ Held to stand of other children with same age, intelligence, experience
4. Mentally challenge people can be liable
■ Question: what did they intend?
5. BATTERY
■ A Trespassory tort
■ Accomplished by the use of some physical force considered
harmful in and of themselves
■ These torts are actionable moment invasion occurs
■
■
■
■
■ Don’t need physical harm
■ Examples:
■ Battery
■ Assault
■ False imprisonment
■ Some property torts
■ Battery protect body and personal autonomy
Elements (need bodily contact for claim)
■ Defendant does an act (voluntary, not a mere reflex) directly or
indirectly
■ With intent to cause:
■ A harmful or offensive bodily contract; OR
■ Causes apprehension of an imminent harmful or bodily
contact
■ The harmful bodily contact results or offensive bodily contact
results
Dual Intent: Majority of jurisdictions and this torts class
■ Intent of mere contact not enough
■ Has to be intention of harmful or offensive contact
■ Must find intent for bodily contact, AND that contact MUST be
intended to offend or harm
■ Elements
■ Defendant intended to perform an action; AND
■ that action was meant to cause harm/offense
Single Intent
■ Does not care about proving intent to engage harmful/offensive
bodily contact
■ Only that defendant DID HAVE bodily contact
■ Defendant intended to perform an action
■ which resulted in a harmful or offensive contact
■ Favors plaintiff (Protects bodily autonomy)
Offensive Bodily Contact
■ Reasonable Person Standard:
■ Would a reasonable person find the contact offensive?
■
Offends one’s reasonable sense of personal dignity
■ This is a matter of fact.
■ Defendant’s knowledge of offense:
■ The “offensive bodily contact” element is fulfilled if the
defendant knows the plaintiff’s idiosyncrasies (or what
plaintiff finds offensive) and does it anyway.
■ What counts as Contact
■ Bodily Contact
■ Direct contact
■ Intentional hit/slap etc.
■ Indirect contact—contact through some other means.
■ Intentionally cause object to touch plaintiff
■ Throw/shoot, etc.
■ Extended personality Rule:
■ Touch something connected to Plaintiff
body
■ snatch, kicking car while plaintiff is
in it, etc. can be a battery
■ Intangibles/invisible touching
■ Smoke, gas, etc.
■ Some courts can consider it is a battery but depends
on the court
■ Light not been successful
■ Words: an order to cause harm or offense
■ Non-action
■ sometimes non-action counts as a battery
■ Informing hospital staff of patients desire not to be
seen/touched by male staff
■ Liability will generally not be imposed if it violates
public policy (i.e. not wanting to be treated by an
African-American). HOWEVER
■ Public policy will NOT trump religious objections
(PP can trump other objections)
■ Not a defense
■ Decreased mental capacity
■ Question did they act with intent
■ Mistake not relevant
■ Did you have intent?
■ Plaintiff does NOT need to be conscious as body is being
protected, not the mind
■ Extended Liability Doctrine
■ Extended liability will hold you liable for injuries you did not
intend
■ Liable for extended injury
■ No argument that the injury was not foreseeable or that it
was not intended
■ Examples
■ You slapped X but it cracked X's skull (thin skull)
■ You assaulted X while X was running away from you, X
runs into a car and is physically injured
6. ASSAULT
■ 3 elements
■ Defendant does an act (voluntary, not reflexive) (can be words)
■ With intent (intent for assault and battery identical) to cause:
■ Harmful or offensive bodily contact; OR
■ Plaintiff has Imminent apprehension of harmful or
offensive bodily contact
■ Imminent: apparent, present ability to carry our the
threat, then and there without significant delay
■ Apprehension: awareness
■ Plaintiff placed in apprehensive situation
that a reasonable person would be
apprehensive of
■ Imminent apprehension of harm and offense results
■ Circumstances
■ Circumstances matter.
■ Always look at circumstances
■ Mere words can be enough (but look at the context)
■ Other considerations
■ Defendant needs apparent, present ability to carry out threat
■ Then and there, imminent, without significant delay
■ Future threat not sufficient
■ Plaintiff consciousness required
● Imminent:
○ Apparent, present ability to carry out threat without significant delay. Will it
happen right then and there?
○ A threat to do something in the future is not an assault
■ It does not put a person in imminent danger.
● Apprehension
○ P must be put in apprehension AND a reasonable person would have been placed
in such apprehension.
■ UNLESS D knows that P's idiosyncrasies, quirks, and particular mindset
would put P in apprehension of danger from D's action
■ Must be conscious of the assault
1. FALSE IMPRISONMENT (False Arrest if Police)
○ Elements
1. An actor commits an act (words or threat of force counts)
1. Direct: lock you in a room
2. Indirect: words or threat of force
2. With intent to confine plaintiff (within boundaries established)
3. Confinement against Plaintiff results (reasonableness is embedded here,
was P reasonably confined)
1. Plaintiff has to be conscious of confinement UNLESS injured
■ Drugged does not count, need to be injured
2. Plaintiff has to be confined but can be a large area
■ i.e. left in a country without passport or money could be
false imprisonment
○ Intent
1. Transferred intent can apply to false imprisonment.
2. Remember rules for conscious intent.
○ Factors
1. Confinement must be for an appreciable amount of time.
2. Must be confined against your will
3. Future threats are not enough
4. Lock outs and restricting access is not enough
5. Reasonable attempts at escape
1. Recovery for injuries from reasonable attempts at escape
2. No recovery for injuries for unreasonable attempts at escape.
1. TRESPASS TO LAND
1. Elements
1. One is subject to liability for trespass irrespective of whether trespass
causes harm to land, if he intentionally:
■ Act
■ With intent (mistake is no defense) to enter land, or cause entry of
a third person or tangible visible object to do so
■ Visible to the naked eye, exception
■ Defendant intentionally did the act, reasonably
foreseeable that it would result in invasion of
plaintiff's interest, entry occurs, and there is
substantial damage to the land
■ Entry results
■ On/above
■ Immediate reaches
■ Through airspace (bullet)
■ Below ground
■ Defendant does not need to know that they are trespassing ,
mistake is not a defense
■ Intent to enter property is enough for trespass to land
2. Property
1. Plaintiff must prove that they have a superior right to ownership in the
property OR a superior interest in the property over Defendant
2. Trespass includes under the ground AND the air space above the property
■ only to a certain height; Fed. Gov. owns airspace over a certain
limit.
3. Entry
1. Tangible:
■ This can be a physical object or a person
■ Usually must be tangible (intangible is filed under a nuisance
claim)
■ One can enter legally but end up remaining unlawfully
■ i..e permission expires or is revoked
■
One can legally trespass to avoid danger to self or extreme
valuables (cars or boats, but not normal property)—but is still
liable if any damage occurs.
■ Continuing Trespass—an object is left on the property, a new
trespass action arises each day
2. Intangible:
■ Not visible to naked eye or something that can't be touched
■ Gas, odors, smoke, light
■ Liability only if:
■ Defendant intentionally does the act
■ It was reasonable foreseeable tat this act would result in an
invasion of plaintiff's possessory interest
■ Entry occurs; AND
■ Plaintiff sustains substantial damage to the property
4. Duty Owed
1. Trespasser:
■ Duty to refrain from willful, wanton, intentional, reckless conduct
■ If discovered in position of peril, THEN
■ duty reasonable care to avoid injury
■ Discovered trespasser rule parallels
2. R3rd §52’s rule for “Flagrant Trespassers.
■ We are following the discovered trespasser rule.
■ Remember other rules too:
■ open, obvious dangers, social hosts
■ alcohol consumption, child trespassers, etc.
1. NUISANCE
○ Nuisance is similar to Trespass (but it does not need to be an intentional tort)
■ Type 1: Private Nuisance
1. conduct that substantially and unreasonably interferes with
plaintiff's enjoyment of property
2. Conduct must cause or threaten to cause substantial harm to
plaintiff's interest
■ Substantial: harm of importance more than slight
inconvenience or petty annoyance R2d
■ Can be intentionally caused or negligently caused
■ The Nuisance must result in substantial and unreasonable
interference
■ Balance Defendant's right to engage in the conduct versus
the plaintiff's right to enjoy his own property
■ Type 2: Public Nuisance
1. An unreasonable interference with a right common to the general
public
2. Conduct that substantially interferes with public health, safety,
convenience, welfare
3. Does not need to involve real property
■ Same balance of defendant's right to do something and
plaintiff's right
■ Only an official can bring suit for public nuisance
■ EXCEPTION: A private plaintiff may sue for
public nuisance if they can allege and prove the
individual harm done to them is different from the
general harm to the public
■ Factors of Nuisance
1. Whether a nuisance is affecting a plaintiff in their home or in their
business
2. Whether the defendant doing the action in their home or business
3. The value of plaintiff's interest to society (of not being nuisanced)
4. Did plaintiff come to nuisance?
5. How great is the harm (gravity, severity)
6. Social utility of defendant's conduct (value to society, Is it purely
economic?)
7. Is defendant's use unusual in the area, not well adapted to the area
■ Remedies (up to plaintiff, what do they want)
1. Damages (money)
2. Injunctions
■ Make defendant do/not do something
3. Combination
1. Trespass to Chattels
1. Elements:
■ Act
■ Intentional, physical interference with plaintiff's personal property; AND
■ Legal harm to plaintiff results (need only 1 of the 4 below)
■ Plaintiff is disposed of chattel (entitled to at least nominals); OR
■ The chattel was impaired (condition, or quality, or value); OR
■ Plaintiff is deprived of use for a substantial period of time; OR
■ Bodily harm to plaintiff (possessor) or some person or thing in
which the plaintiff has legally protected interest (rare)
2. Remedies
■ Actual damages (money)
■ Emotional distress should attach
3. Purposeful Infliction (New Tort)
■ Established if:
■ Actor purposefully causes bodily harm to the other, either by
actor's affirmative conduct or by actor's failure to prevent bodily
harm when actor has a duty to prevent such harm
4. Relationship to conversion
■ closely related
■ Bring everything you have though
■
both conversion and trespass to chattel
■ Many have said “every conversion brings a trespass to
chattel”
1. Conversion [of Chattel]
1. Big sister to trespass to chattels
2. What it is:
1. Forced sale
2. Damages normally based on market value of the item at the time of the
conversion
3. Extent and duration of control:
■ Should the court make the defendant pay for the full market value
of the thing being converted?
3. Factors to consider:
1. Extent and duration of resulting interference with plaintiff's right of
control
2. Defendant's intent to assert a right in fact inconsistent with plaintiff's right
to control
3. The defendant's good faith
4. Harm done to the chattel
5. Expense and inconvenience caused to the plaintiff
4. Bona fide purchasers can be converters (who buys in good faith for real value)
1. Unless: bought from the person who got the property from true owner by
trick
2. Court has tethered where they get the product from to them
3. Good faith no defense
5. UCC (Uniform Commercial Code)
1. Different rule for merchants
2. Provides more protection
3. Mistake no defense
6. A party commits conversion if the owner’s property is lost, destroyed, or
otherwise seriously interfered with at a time when the defendant did not have the
right to lawfully possess it.
1. This includes if an object is borrowed with permission.
2. Must use object for purpose it was lent.
3. Must return object in the time and manner in which it was lent.
4. Keep past the due date=liable for conversion if anything happens to it.
7. Elements:
1. An act
2. To exercise substantial dominion over tangible property (of another); and
3. dominion or control results
■ (this does not require a person to know that the property belong to
another, just that they acted to take control of the property).
8. What cannot be converted
1. Real property
2. Any moveable tangible objects
■ unless you have actual serial numbers
3. Blood, cells, tissue
■ UNLESS: Ted Slavic situation
9. What can be converted
1. Copyright, patents
2. Accounts, stocks, bonds
■ Courts have begun to allow
3. Any moveable tangible objects except those specified (i.e. money)
4. Embryonic cells
■ Courts treat eggs very differently from blood/tissues
10. Remedies
1. Forced sale of item (Defendant pays for replacement or buys the item as
is—whichever is higher)
■ BUT Defendant gets to keep the item.
2. REPLEVIN: Plaintiff demands defendant returns the item + money for
any damages caused while plaintiff was deprived of the property
■ Plaintiff get the property back
■ SEPARATE CAUSE OF ACTION (not tied with conversion)
● Transferred Intent Doctrine
○ Applies to
■ Assault
■ Battery
■ False imprisonment
■ Trespass to land
■ Trespass to chattels
■ Conversion
○ When you intend to batter x, and you batter y
■ Intent transfers to any other person you end up committing tort against
instead
■ Different person/same tort
■ Baska case
■ Different person/different tort
■ Born to include/protect for y, because otherwise intent would fail and y
would lose under dual intent jurisdictions
○ A different tort to X occurs (you intend to assault X, you falsely imprison X
instead)
■ Same person/different tort
1. 42 U.S.C § 1983
1. 3 Elements:
■ Actual person
■ Need a state actor (police officer, prisoner custodian,
teacher/school administrator)
■ Cannot sue state itself
■
BUT, can sue municipalities and counties
1. Cannot sue municipality under §1983 to get
respondeat superior
■ Acting under color of state law
■ exercising power made possible by state law
■ Deprived plaintiff of their federally protected right
■ In torts we usually see allegations that the defendant has violated
the
■ 1st, 4th, 8th, and 14th amendments
■ Provide close analogies to personal injury claims
2. Bonus of S. 1983
■ Prevailing Party gets Attorney fees paid for by losing party
■ but it can be very hard to prove in constitutional cases
■ There is no federally set statute of limitations
■ but local federal courts may look at local jurisdictions statue of
limitations on similar cases to determine a statute of limitation for
the offense
3. Two Types of immunities
■ Absolute immunity
■ Judges – judicial actions
■ If performing judicial acts that are not in clear absence of
all jurisdiction
■ Prosecutors – for prosecutions
■ If acting as an advocate for the state
■ May be entitled to qualified immunity for acts that are
investigative or administrative
■ Witnesses
■ Who testify in judicial proceeding
■ Mere qualified immunity protects the complaining witness
1. Who initiates prosecution
■ Legislators – for their legislative acts.
■ Qualified immunity: there is qualified immunity when
■ Qualified Immunity (big one)
■ For all other individual state actors who carry out executive or
administrative functions (police officers, teachers, school
administrators); when
■ There is no violation of the constitution; OR
■ The right alleged to have been violated was not "clearly
established"
■ Can get very technical
4. Other considerations
■ Can bring § 1983 and any state common law tort claims
■ § 1983 claim can be brought in federal court
■ There is no statute of limitations
■
Feds "borrow" the most similar state tort statute of limitation
5. Defendant's attacks
■ No violation
■ Qualified immunity
2. Intentional Infliction of Emotional Distress (IIED)
1. Transferring intent doctrine does NOT APPLY to IIED claims
2. Two ways of recovery for emotional distress damages
■ (most popular) recovery as an element of damage connected (parasitic) to
another tort
■ Standalone claim—can recover on own merits (we do not like this claim)
3. 5 Elements (of standalone claim)
■ An actor, who by extreme AND outrageous conduct
■ Intentionally OR recklessly causes
■ High risk; conscious disregard
■ Severe emotional distress to plaintiff
■ Something which would cause a regular person to suffer
■ Severe emotional distress results
■ defendant is subject to liability for that emotional harm
■ if the emotional harm causes bodily harm, also for that bodily harm
■ Courts have added causation element:
■ BUT FOR the defendant's outrageous conduct, the severe
emotional distress would NOT have occurred
4. Outrageous/Extreme vs. Mere Insults
■ Extreme and Outrageous
■ Conduct that goes beyond all bounds of decency
■ Is regarded as atrocious and utterly intolerable in a civilized
community
■ No person normally constituted should be expected to endure it
■ Mere Insults
■ Not actionable
■ Trivialities, words we are expected to endure in life
■ Exceptions (where action for mere insults are okay)
■ Innkeepers (hotels)
■ Public utilities
■ Others who provide essential services to the public
5. Red Flags that help establish extreme and outrageous
■ Repeated/continuous conduct
■ Abuse of power
■ Defendant has knowledge of plaintiff's vulnerability
■ Directed at a person known to be vulnerable
■ Done in front of others
6. “Severe” Emotional Distress considerations
■ 2 part test that the plaintiff must prove that
■ They suffered severe emotional distress; AND
■
A person of ordinary experience, ordinary constitution, sensitivity ,
and susceptibilities would have suffered (thin skinned plaintiff then
no claim)
■ UNLESS Defendant knew of plaintiff's particular
vulnerability to certain actions and acted anyway
■ No longer need physical manifestation but courts usually REQUIRE
medical/therapeutic and/or scientifically based evidence
7. Third Party IIED Claims (Triangle)
■ Restatement 46 § 2
■ A third party may bring an IIED claim for an intentional tort committed by
one person against another if:
■ The tort was directed at a third party who is an immediate family
member of the plaintiff; AND
■ The third party plaintiff was present and contemporaneously aware
during the tort
■ Defendant is also liable to any other person who is present
and suffers bodily harm
1. If a third party is NOT a family member, then
presence is not enough, they would need to have
suffered bodily harm as well
■ Tricky
■ Suing defendant for reckless or intentional tort against a third party
■ Reckless goes to defendant's mental state
■ Argument that they cause plaintiff IIED
■ Need to prove that defendant intended to or recklessly caused the
third party severe emotional distress
■ Have to make argument that the defendant either
1. Knew third party was there
2. Or were reckless in their actions
■ i.e. seeing backpacks in the hallway and
carrying on with tort anyways
1. Affirmative Defenses
1. Defenses allows force
■ Reasonable
■ That degree of force a reasonable person would use
■ Excessive
■ Exceeds force a reasonable person would have used
■ Deadly force
■ Misnomer
■ Refers to any force calculated to cause serious bodily harm or
death
2. Self-Defense
■ One is privileged to use reasonable force to defend from what one
reasonably perceives to be:
■ An assault
■ Or battery
■ Or false imprisonment
■ Must be reasonable force – degree that one reasonably believes is
necessary to repel the threat
■ If force exceeds situation then you are liable
■ Jury can't separate, you pay for all damage
■ Self-Defense Argument Analysis
■ No defense for initial aggressor; unless
■ You make clear you are withdrawing and the person is
still coming toward you
■ No right to retaliate
■ Right to defend ceases when threat ceases
■ Mistakes
■ Okay within reasonable belief
■ Threatening force you can use
■ At your own peril
■ Have to have right to use reasonable force
■ Several jurisdiction will allow to threaten deadly force
(force not allowable under the circumstances)
■ Deadly force if you reasonably believe that deadly force
will be used against you
■ Deadly Force
■ Force that is calculated to cause serious bodily harm or
death
■ Privileged to use deadly force if party thinks that Deadly
Force is about to be used against them
■ Dying minority follow original rule:
■ Duty to Retreat/Stand Your Ground
■ Exception: no duty to retreat if you are at
your home
■ Most jurisdictions have dispensed with the
retreat rule
■ Majority: stand your ground laws
■ No duty to retreat before using deadly force
■ Even if you could
■ Used to protect life, not property
■ Can stand your ground and use if you
reasonably believe that deadly force is about to
be used against you
■ Some Stand-you-ground laws provide immunity
from arrest and criminal and civil prosecution
3. Defense of Others
■ Restatement and majority
■ You reasonably believe you are helping the right person; AND
■ You use that degree of force reasonably necessary to repel the
threatened
■ Assault,
■ Battery,
■ Or false imprisonment of the person you are defending
■ Minority view
■ You step into the shoes of the person you defended
■ If it turns out you defended the wrong person, you are the proper
defendant in lawsuit and cannot claim this defense
■ Courts not happy with this rule because it could make people
hesitant to help for fear of being liable
4. Defenses of Property
■ May use reasonable force to defend own property (Majority)
■ No right to use deadly force to defend property
■ Includes use of vicious dogs, mechanical devices, etc.
■ Human life more valuable than property
■ Can threaten to use deadly force—but do so at own peril.
■ Can recover own property in fresh pursuit.
■ EXCEPTION: Missouri Castle Doctrine
■ Seems to allow deadly force to defend property, dwellings
vehicles, BUT
■ Courts so far have ruled that one must still
reasonably believe deadly force is about to be used
against you before you can respond with deadly
force
■ Defense of the property of another (R2d § 86)
■ Not so much allowed but rule allows it:
■ Defendant can inflict a harmful or offensive bodily contact or other
invasion of another's interests of personality for the purpose of
preventing or terminating the other's intrusion upon a third person's
possession of land or chattels under the same conditions and by the
same means under and by which he is privileged to make similar
invasions of another's interests to prevent or terminate intrusion
upon his own land or chattels, IF
■ The actor correctly or reasonably believe that
circumstances were such to give third person such a
privilege to defend property of another; AND
■ His intervention is necessary to protect the third person's
possession from intrusion; AND
■ The third person is or is reasonably believed by the actor to
be a member of his immediate family or household, or a
person whose possession the actor is under a legal duty to
protect.
■ Best choice, just call 911
5. Recapture of Chattels
■ Must be done in HOT/FRESH PURSUIT
■ On the heels of
■ Reasonable force for assault, battery, etc. to retrieve chattel
■ Liable if you exceed the scope of privilege
■ Must be in the right
■ Act/mistake at your own peril!
■ Once you are in the throes of recapturing, self-defense (& rules about
reasonable force vs. deadly force, etc.) may kick in.
■ Going on land of another to retrieve property:
■ R2d § 198 allows you to enter land with reasonable time and
reasonable manner to retrieve
■ You are liable for harm done to land except: where the
chattel is on the land through the tortious conduct or
contributory negligence of the possessor
■ Most people would advise you to get permission from land owner
before entering
6. Arrest and Detention
■ Private Person to detain: the circumstances under which a private person
may arrest another without a warrant:
■ If the other has committed the felony for which he is arrested; OR
■ If an act or omission has occurred and the actor reasonably
suspects that the other has committed such an act or omission.
■ If the other, in the presence of the actor, is committing a breach of
peace…
■ If the actor has attempted to commit a felony…
■ If the other causes the actor to believe there are facts that would
give the actor the privilege of the arrest
■ Merchant’s Privilege: A merchant can detain a person if the merchant
has 3 elements
■ The merchant/security has probable cause to believe that X has its
property
■ The merchant/security can conduct a reasonable investigation and
detain for
■ Reasonable cause
■ Reasonable time
■ Reasonable manner
■ If person did not have anything, then they can sue for false
imprisonment
7. Discipline
■ Most: kids can sue parents today for torts, BUT parents have privilege to
use reasonable force to discipline their children
■ Parents have right to assault, batter, falsely imprison their kids
(within reason)
■ i.e. time outs, grounding, grabbing
■ This privilege extends to children in the care of others (i.e.
teachers, babysitters, bus drivers, etc.)
■ BUT: don't have the same rights as parents
■ Parents are given more leeway but the rule says that
the person acting in the parent's footsteps can
"discipline" the child
■ Most schools/nurseries/daycare centers, etc. have rules
prohibiting physical punishment
■ Even though 19 states allow corporal punishment
■ Restatement 2nd says that parents "may use reasonable force as they
reasonably believe necessary."
■ Mass elements: a parent is not liable for use of force against a minor under
the care and supervision of the parent if:
■ The force used against the minor child is reasonable
■ The force is reasonably related to the purpose of safeguarding or
promoting the welfare of the minor, including the prevention or
punishment of the minor's misconduct
■ The force used neither causes, nor creates a substantial risk, of
physical harm, gross degradation, or severe mental distress
7. Consent
■ Meaning: a knowing, voluntary agreement; must be based on material
facts
■ Two types
■ Express: verbal assent, signature
■ Easy one
■ Implied: based on conduct/custom
■ Big one, more common
■ Look at the perspective of the defendant: Would be
reasonable person assessing the situation believe based on
plaintiff's conduct that plaintiff was consenting
■ Crime
■ Restatement says consent is effective (bars lawsuit)
■ Exceptions: consensual killings, statutory rape, etc.
■ People who consent to tortious conduct do not have the privilege to
sue.
■ Did plaintiff consent
■ Look at:
■ Words
■ Conduct
■ How things appeared to defendant and to a reasonable
observer
■ Situations where consent might not be obtainable
■ Power Relationships: where one party holds power over the other
■ Employers and their employees
■ Incapacity of minors to consent
■ Incapacity to consent: adults
■ Adults can't consent by establishing that the adult could not
manage own affairs
■ Ways to attack consent
■ Against Public Policy
■ Examples:
■ Sexual relationships between
■ Teacher/student
■ Therapist/patient
■ Jailer/jailee
■ Lawyer/client
■ Right to die/assisted suicide
■ Minors in statutory rape context
■ Fraud, mistake, omission
■ Plaintiff didn't have all the material facts but defendant
does have the relevant info
■ Goes to material fact
■ Substantive
■ Average person would have deemed worth
knowing and if known consent would not
have been given
■ Relates to important, major feature/nature of
the transaction
■ Person is incapacitated (Physically, mentally)
■ General rule: one who has reached the age of majority can
give an effective consent to all kinds of conduct unless the
defendant knows or has reason to know of some kind of
abnormality, temporary or permanent, of the consenting
person
■ Exceptions
■ If the person was incapacitated (can include
intoxication), had mental challenge, or was
otherwise vulnerable at the time;
■ This condition substantially affected plaintiff's
ability to understand what s/he was consenting or
not consenting to;
■ AND, defendant knew or has reason to know this
■ If you have all 3, consent is not valid
■ NY voluntary intoxication does not
invalidate consent
■ Cali opposite, puts burden of proof on
defendant to prove he/she had affirmative
consent
■ Duress – overpowering of will
■ Really tricky
■ Constraint of another's will by which he is compelled to
give consent when he is not in reality willing to do so
■ Someone overpowered your will
■ Threats of force
■ If someone threatens physical violence or
imprisonment to you or a family member, then
duress may be a possible defense
■ i.e. I'll kill your kid if you don’t do X
■ Limits: can't batter or fatally injure someone else
when under threat of duress
■ Does not cover all threats, i.e.
■ Threat of not being a friend
■ Threat of some economic duress (loss of job)
■ Courts extremely hostile to this argument
■ Courts usually give resounding no
■ Power dynamic
■ Minors
■ Minors can consent to some things (i.e. abortion)
but sometimes not to others (i.e. sex)
■ Generally covers the range of their maturity
■ Employees
■ Person who consented did not have authority to consent.
■ Hospitals
■ No emergency
■ Need consent
■ General rule: Cannot exceed scope of consent given
(does not matter if doctor/medical staff meant good)
■ No touching without consent unless – see
document you signed
■ Rule: if there is no emergency, then there is no reason to
touch without consent
■ Even if person is unconscious or incapacitated
■ During surgery
■ Person is unconscious and on operating table, doctor sees
problem in area of original incision. Impractical to get it
later
■ Old rule: Kennedy
■ Permission extends to area of original incision.
Consent is said to be implied (of course you want
doctor to deal with it)
■ NOW: Kaplan Rule
■ Implied consent as to complications inherent to the
procedure
■ Is there a contract?
■ If not, then wait for consent
■ Minor?
■ Get consent from parent
■ Emergency
■ Plaintiff is rational and not incapacitated
■ Defendant must obtain consent and follow
Plaintiff's wishes
■ Plaintiff is incapacitated/unconscious
■ Doctor should get court permission
■ If no time, hospitals have been allowed to act in
parents best interests
■ NOT TRUE for religion-based blood
transfusions (That’s a BATTERY)
■ Minors
■ Hospitals may act in best interest of children, even
against parent wishes.
■ Even in religion based blood-transfusion
cases (Miller)
■ Preexisting Duty
■ Some actors may have a duty to intervene and commit a
tort (Police; medical care).
■ Battery
■ Occurs when doctor performs substantially different
treatment from that covered by the patient's expressed
consent
■ Implied Consent: Consent may be implied if:
■ the overall circumstances give a reasonable person in the actor’s
position reason to infer the victim’s consent; OR
■ the law deems consent to occurred have, even if it has not. In
general, the law implies consent if:
■ an emergency makes it apparently necessary for the actor to
physically contact the victim to prevent harm to the victim
before the victim can consent, and
■ the actor has no reason to believe that the victim would
decline to consent if given the opportunity.
■ Substituted Consent
■ When a person gets the right to speak on behalf and consent on the
behalf of others (when a person may be incapacitated).
■ SOME courts say to do what is in the person’s best interest.
■ MOST examine what the person themselves would have
consented to or what they would have wanted. (Do what
the person would want)
■ FOR CHILDREN—always for the best interests of the
child.
■ Hospitals usually need court order unless
emergency and there is no time
■ Person unconscious etc.
■ Issue of who can consent on person's behalf/no one around
■ Hospital can act if no time to go to court
■ Informed consent
■ Hospital/doctor/medical establishment must tell plaintiff all of the
facts a reasonable patient would wan to know for HAVING a
medical procedure
■ And the risks of having and not having the procedure
■ Otherwise consent can be invalidated
■ This is covered in medical malpractice world
1. Necessity
1. Historically tied to land
2. Private Necessity
■ Defendant is privileged to assault, batter, falsely imprison, trespass to
chattel, trespass to land
■ Needs to act in good faith
■ Defendant actually or reasonably believes the conduct is necessary to
protect imminent danger or threat of harm to himself and or loved ones
■ This is an incomplete defense!
■ Defendant is liable for actual damage caused
■ Major difference between private and public necessity
3. Public Necessity
■ Complete defense!
■ No not need to pay for actual damages
■ Do not need to be a public official or state actor
■ Common law defense that is the complete opposite of the "takings clause"
■ Defendant is privileged to assault, batter, falsely imprison, trespass to
chattel, trespass to land
■ Defendant must actually or reasonably believe the conduct is necessary to
protect imminent danger or threat of harm to the public and you act in
good faith
■ When defendant acts and commits a tort if defendant reasonably believes
such conduct is necessary to avert public disaster
■ E.g. destroying a person’s home to prevent the spread of fire
■ Plaintiff receives no compensation when private defendant acts
■ Complete Defense
■ If Government Acts, Defendant is entitled to compensation under the idea
of “Eminent Domain” and the Takings Clause
■ The government cannot take for public use without fair
compensation
■ Takings Clause:
■ 5th amendment
■ …nor shall private property be taken for public use,
without just compensation."
■ Applies to states under 14th amendment
■ Applies to the federal government under the 5th
amendment
■ Triggered only when
■ State action
■ Taking
■ For public use
■ Situations that may not be covered:
■ Many say destruction to property in connection with
apprehending criminal suspects not for public use
■ Situations covered
■ if property taken to build a park, airport,
government building etc.
■ If constitutional takings clause does not apply, the fall back
is common law public necessity doctrine
■ Usually will fail as well if takings clause has failed
1. Negligence
1. Negligence vs. recklessness
■ Negligence = failed to practice reasonable care
■ Reckless = really high risk and you consciously disregarded risk
■ Step above regular negligence
2. Elements of Negligence
■ Duty is owed
■ Decided by judge
■ Breach of that duty
■ Decided by jury
■ Actual cause (cause in fact)
■ Negligence was the actual cause of the injury
■ Proximate (legal) Cause of the injury
■ The negligence was the proximate cause of the injury
■ The damage is within the "Scope of liability" of the defendant
■ Injury
■ 1 + 2 conduct is negligent (but not liable for conduct…yet)
■ Need all 5 elements for liability for negligence
■ NOTICE: tort hold defendant liable even if they did not intent to cause
harm/injury
3. Negligence as a matter of law
■ Common law: Duty to act like RPP under same/similar circumstances
■ Breach: you failed to do what RPP would have done under same/similar
circumstances
4. Standard of Care
■ Reasonably Prudent Person Standard
■ Exercise degree of care that the reasonably prudent person would
exercise in the same or similar circumstance
1. Includes very dangerous situations and emergencies
2. Emergency: sudden, unexpected, unforeseen happening or
condition that calls for immediate action
1. If sudden emergency not of your making,
jurisdiction may allow sudden emergency
instruction
2. Most courts do not issue emergency instructions:
the standard of care is met by looking at the
circumstances.
■ Physical disabilities:
1. Standard: reasonable person takes on the physical
disability
2. Intoxication
1. Voluntary: no (RPP standard)
1. Treated like mental limitation
2. Involuntary: reasonable person takes on physical
disability
3. Incapacitation
1. Reasonable person takes this on
2. If incapacitated person had warning, reasonable
person with that knowledge is key
4. Old/Age is not a physical disability
■ Mental disabilities
1. Standard: reasonably person will NOT take on disability
(still held to RPP standard)
2. Decreased capacity:
1. For defendant: we ignore mental difference and
hold person to RPP of average intelligence; BUT
1. If plaintiff and defendant knew/duty to
protect, then we take into account
3. Greater intelligence:
1. Reasonable person always goes up; not down
2. A person with additional expert knowledge is held
to a higher standard because of specialty
knowledge.
1. Reasonable person takes on any benefits
■ Child Standard
1. Standard: duty to exercise degree of care that a reasonable
child of the
1. Same AGE,
2. INTELLIGENCE (includes mental capacity here);
and
3. EXPERIENCE would exercise in the same or
similar circumstances
2. Engaging in Dangerous Adult Activities
1. Minors who engage in adult activities will be held
to the same standard as an adult.
1. Stevens v Veenstra (1998)
■ Adult Standard
1. Duty to exercise the degree of care that the ordinary,
average, prudent, reasonable person would exercise in the
same or similar circumstances
5. Element #1: Duty
■ Common law duty
■ General standard: to exercise reasonable care/ordinary care/prudent care
■ That degree of care a reasonable, ordinary, prudent person would
exercise
■ Question of law for the judge
■ Factors
■ Foreseeable plaintiff rule must be included
■ Policy, social, economic interest
■ Foreseeability of risk of injury (most use totality of circumstances test
when assessing if duty to act to prevent criminal act)
■ Fairness of potential liability
■ Economic impact on the defendant and on similarly situated parties
■ Need for an incentive to prevent future harm
■ Nature of defendant activity
■ Potential for an unmanageable flow of litigation
■ Historical development of precedent
■ Direction in which society and its institutions are evolving
■ Duty Limited to foreseeable people (Palsgraf)
■ Rescuers foreseeable as a matter of law
1. Private—private rescuers are foreseeable as a matter of law
2. Professional—generally, no duty to professional rescuers.
1. Exceptions
1. Intentional tort
2. Violation of statute
3. Hidden and opportunity to warn
4. Risks above and beyond
■ Reasonable person
■ average height, weight, intelligence, has average vision, reflexes,
experiences etc.
■ Faster, stronger, smarter – reasonable person takes on
■ Physical challenge – reasonable person does NOT take on
■ Below average intelligence, mental challenges, intoxication
1. No
2. Not a circumstance to be considered
1. Except when involuntarily intoxicated
■ Gender, race, ethnicity issues
1. Some courts allow modification when gender/race, ethnicity
part of the case but it is hard to get the judge to accept if not
■ Religion
1. Haven't found any cases
■ General duty/exceptions
■ General common law rule
1. The standard does not change
2. That degree of care the reasonable person (ordinary, average,
prudent) would exercise under same or similar circumstances
1. Includes emergencies – and if one caused the
emergency that is also taken into account
■ Changes/modifications
1. Greater strength, intelligence, experience
1. Reasonable person takes on
2. Physical challenge
1. Reasonable person does NOT take on
3. Children
1. Reasonable child of same age, intelligence, experience
2. No negligence as a matter of law for children under 4
3. Minority still follow the "rule of 7s"
4. Adult standard applied to children who engage in
dangerous adult activities (inherently dangerous)
1. I.e. guns
■ Duty to Act: Nonfeasance/Misfeasance
■ General rue: no duty to act (nonfeasance)
1. No liability
■ Definitions
1. Misfeasance: Affirmative action, and acting badly
2. Nonfeasance: Complete failure to act
■ Exceptions
1. § 37 No Duty of Care With Respect to Risks Not Created
By Actor
1. An actor whose conduct has NOT created a risk of
physical or emotional harm to anther has no duty of
care to the other unless a court determines that one
of the affirmative duties provided in §§ 38-44 is
applicable
2. § 38 Affirmative Duty Based on Statutory Provisions
Imposing Obligations to Protect Another
1. When a statute requires an actor to act for the
protection of another, the court may rely on the
statute to decide that an affirmative duty exists and
to determine the scope of the duty
2. Courts don’t typically follow this provision
3. Good Samaritan statutes might impose criminal
duty
4. As a general proposition, Negligence Per Se not
applicable since no similar duty at common law
1. If the good Samaritan Law imposes a CIVIL
obligation, THEN the statute must be
followed
1. Not a Negligence Per Se situation
3. § 39 Duty Based on Prior Conduct Creating a Risk of
Physical Harm
1. When an actor's prior conduct, even non-tortious,
creates a continuing risk of physical harm of a type
of characteristic of the conduct the actor has a duty
to exercise reasonable care to prevent or minimize
the harm
4. § 40 Duty Based on Special Relationship with Another
1. An actor in a special relationship with another owed
the other a duty of reasonable care with regard to
risks that arise within the scope of the relationship
2. Special relationships giving rise to the duty include
1. A common carrier with its passengers;
2. An innkeeper with its guests;
3. A business or other possessor of land that
holds it premises open to the public with
those who are lawfully on the premises;
4. An employer with its employees who, while
at work are:
1. In imminent danger; or
2. Injured or ill and thereby rendered
helpless
5. A school with its students;
6. A landlord with its tenants; and
7. A custodian with those in its custody, if
1. The custodian is required by law to
take custody or voluntarily takes
custody of the other; AND
2. The custodian has a superior ability
to protect the other
5. § 41 Duty to Third Parties Based on Special Relationship
with Person Posing Risks
1. An actor in a special relationship with another owes
a duty of reasonable care to third parties with regard
to risks posed by the other that arise within the
scope of the relationship
2. Special relationships giving rise to the duty in this
section include:
1. A parent with dependent children;
2. A custodian with those in its custody;
3. An employer with employees when the
employment facilitates the employee's
causing harm to third parties; and
4. A mental-health professional with patients
6. § 42 Duty Based on Undertaking
1. An actor who undertakes to render services to
another who knows or should know that the services
will reduce the risk of physical harm to the other
has a duty of reasonable care to the other in
conducting the undertaking IF:
1. The failure to exercise such care increases
the risk of harm beyond that which existed
without the undertakings, OR
2. The person to whom the services are
rendered or another relies on the actor's
exercising reasonable care in the
undertaking
7. § 44 Duty to Another Based on Taking Charge of the Other
1. An actor who, despite no duty to do so, takes charge
of another who reasonably appears to be:
1. Imperiled; AND
2. Helpless or unable to protect him/herself
Has a duty to exercise reasonable care while the other is within
the actor's charge
1. An actor who discontinues aid or protection is subject to a duty of reasonable care to
refrain from putting the other in a worse position than existed before the actor took
charge of the other, AND if the other reasonably appears to be in imminent peril of
serious physical harm at the time of termination, to exercise reasonable care with regard
to the peril before terminating the rescue
● Landowner: condition on land, duty to act
1. Invitee
■ A person on the property for the pecuniary (economic) benefit (or
transaction) of the land owner, or is in a public space
■ Owed the duty of reasonable care to discover and make reasonably safe
2. Licensee (person with permission to be on property – i.e. guest)
■ Duty to warn of hidden peril landowner knows/should know about
■ Duty to refrain from willfully causing licensee harm
3. Trespasser (someone uninvited on property)
■ Duty to refrain from willful, wanton, intentional, reckless conduct which
is likely to injure the trespasser
■ If discovered and the trespasser is helpless or unable to protect self, most
require duty of reasonable care to avoid injury
4. Other rules
■ Open, obvious dangers = no duty
■ Social hosts and alcohol consumption = no duty
● Actor to protect plaintiff from danger of third persons
1. State Actors
■ No constitutional duty to act unless
■ State created danger or state has taken person into custody against
will and deprived person of ability to care for self
■ Check state law to see if common law duty to act
■ Still have public duty or official immunity issues to deal with
2. Store with its Customers
■ Special relationship not enough
■ Totality of circumstances test relevant to duty
3. School with its Students
■ Custodial relationship
■ §§ 40 and 41 relevant
4. Parents with Children
■ Vicarious liability possible
■ If negligence difficult
■ Many require foreseeability of the danger that occurred
■ Argue for application of R3d § 41
5. Employers with Employees
■ Negligent hire/retention § 41
■ Also R2d §317 (did not cover in class)
■ A master is under duty to exercise reasonable care so to control his
servant while acting outside the scope of his employment as to
prevent him from intentionally harming other or from conducting
himself as to create and unreasonable risk of bodily harm to them
IF
■ The servant
1. Is upon the premises in possession of the master or
upon which the servant is privileged to enter only as
his servant; OR
2. Using a chattel of the master; AND
■ The master
1. Knows or has reason to know that he has the ability
to control his servant; AND
2. Knows or should know of the necessity and
opportunity for exercising such control
■ § 317 different from respondeat superior as it is premised on employer's
breach and aforementioned duty of care
■ Negligent supervision is direct liability theory
■ NOT AN EXCEPTION TO RESPONDEAT SUPERIOR
■ General rule that employers are not liable for the
intentional torts of their employees
● Four Tests to determine foreseeability when assessing whether a duty should be imposed:
1. Specific harm rule/test
■ no duty of landowner to protect patron from the violent acts of third
parties unless land owner knows/aware of the specific, imminent harm
about to befall them
■ Outdated, courts have generally agreed that the rule is too restricting and
limiting the duty of protection that business owners owe their invitees
2. Prior similar incidents test (inconsistent results)
■ Under this test, foreseeability is established by evidence of previous
crimes on or near the premises
■ Idea that past history of criminal conduct will put the landowner on
notice of future risk
■ Courts will consider nature and extent of previous crimes, frequency, and
similarity to crime in question
■ Test can lead to arbitrary results as it is applied with different standards
regarding number of previous crimes and degree of similarity required to
give rise to a duty
3. Totality of circumstances test (MOST COMMON)
■ case-by-case basis
■ MOST jurisdictions here
■ Takes additional factors into account
■ Nature, condition, location of the land as well as other relevant
factual circumstances bearing on foreseeability
■ A substantial factor in determination of duty is the number, nature, and
location of prior similar incidents
■
But the lack of prior similar incidents will NOT preclude a claim
where the landowner knew or should have known that the criminal
act was foreseeable
■ Application focuses on level of crime in surrounding area and courts that
apply test are more willing to see property crimes or minor offenses as
precursors to more violent crimes
■ Tends to place greater duty of business owners to foresee the risk of
criminal attacks on their property
4. Balancing test
■ adopted by Posecai, (& a few other jurisdictions)
■ VERY similar to Hand Risk/Utility test and discussion of foreseeability
■ R.3d rejects this approach, it takes on the role of the juror too much in
deciding duty
■ In determining duty that exists, the foreseeability of the harm and the
gravity of the harm mist be balanced against the commensurate burden
imposed on the business to protect against that harm
● Negligence per se
○ Another way to establish duty
○ Not using common law, using statutory law
■ Replaces common law standard
○ Judge has total discretion to adopt/apply (party seeking to use the law must convince
the court to adopt)
■ Most judges will NOT use if a similar duty did NOT exist at common law
■ Court rejects using a non tort law to create a tort duty
○ If a child violates a statute, the court will rarely apply Negligence Per Se
○ Tort statute vs. non-tort statute
■ Does the statute provide a cause of action for personal injury?
■ Yes: it is a tort statute, can't ignore it
■ Do not use negligence per se rules
■ Examples of civil tort statutes:
■ OSHA
■ Dram Shop Statutes
■ FELA
■ Product Liability Statutes
■ Deceptive Marketing Practices Statutes
■ Worker's Compensation
■ No: probably criminal law, municipal code violations, safety law,
building code
■ How is it relevant?
■ How do we get the court to use it?
■ Courts very hesitant to apply to children
■ Failure to act § 38 not a common law section
■ When a statute requires an action to act for the protection of another,
the court may reply on the statute to decide that an affirmative duty
exists and to determine the scope of duty
■ Good Samaritan statute (two)
■ One makes it a crime with a $500 fine
■ Subject to negligence per se
■ Requires one to act
■ Civil obligation
■ Creates its own action
○ How judge decides if statute will apply
■ Statute clearly defines the conduct
■ The statue is not creating a duty that didn’t exist at common law
■ The law was intended to prevent the very harm that occurred
■ The person injured as a result of the violation was a member of the class of
persons the statute was designed to protect
■ Judge likely to apply statute
■ Judge still has role: must determine fact of violation and whether the violation
was the proximate cause of the injury
■ Also decide if excuses relevant
○ Excuses: § 15 of R3d (Majority)
■ Reasonable because actor is child, physically disabled, or physically
incapacitated
■ Different from R2 which simply said "incapacitated" and thus
included mental incapacitation
■ Actor did exercise reasonable care in attempting to comply
■ No excuse if you caused the emergency
■ Actor reasonably does not know nor should have known of factual
circumstances that render the statute applicable
■ Law confusingly presented to the public
■ Greater risk to actor or to others if the actor were to comply
○ Compliance
■ Never a complete defense
■ Unless it says so
■ Is evidence of due care
■ Reasonable person may have done more
■ Same for industry customs and standards, etc.
■ All relevant (and therefore admissible) but not conclusive
1. Element #2 Breach
○ Breach of duty: failure to do what a reasonable person in same/similar
circumstances would have done
■ Trier of facts look at 3 variables to determine what a reasonable person
would have done
■ Professor does not care if we use Judge Hand Formula or R3d
Factors
■ They are the same, restatement just takes out the "math" aspect
○
○
○
○
■ To show that a defendant breached a duty, typically, a plaintiff must show
that the defendant had a reasonable alternative course of action available
that more likely than not would have prevented, or at least mitigated, the
plaintiff’s injury
Hand Formula
■ Says duty is a function of 3 variables (risks v. utility)
■ PxL>B
■ P: probability of the risk developing (foreseeability comes
in here)
■ foreseeable likelihood that the person's conduct will
result in harm
■ L: Gravity (severity) of the harm that will/could occur if the
risk develops
■ B: Burden of adequate precautions to eliminate or reduce
the risk
■ What is the interest that will be sacrificed to avoid
or minimize the risk?
■ Inquiry includes:
■ what is value of the conduct to our society?
■ Is there a safer alternative?
■ Practical, technological, and economic
feasibility
Restatement 3rd
■ Same as hand formula
■ Foreseeable likelihood that the conduct will result in harm, foreseeable
severity of the harm, burden of precautions to reduce or eliminate risk
■ Used to formulate if there was a breach
Proving breach
■ Plaintiff needs to allege a specific failure
■ Defendant failed to do this specific thing
■ i.e. texting while driving, speeding, drinking and driving)
■ Res Ipsa is an exception to this rule
■ Evidence to prove breach
■ Basic testimony
■ Jury cam figure it out themselves
■ Expert testimony
■ If beyond common knowledge
■ i.e. building codes, custom in industry/community,
■ Circumstantial evidence
■ Used to infer facts
■ Most important evidence in tort cases
■ All types of evidence is admissible but does NOT establish breach
Common ways of proving the defendant should have discovered the danger:
■ The length of time the danger existed
■ Defendant was on constructive notice of the danger
■ Prior accidents occurred showing accidents happened.
○ Violation of Private Standard or Common Custom
■ Actor’s Own Standard
■ Generally—an actor’s own private standard of care does not create
a different standard. The standard is always the reasonable person.
■ Wal-mart Stores, Inc. v. Wright (2002): plaintiff slipped on
some water in Wal-Mart. Wal-Mart had a manual that
stipulated the floors should be kept clean and free of spills.
A private, subjective standard of care cannot be used to
replace the duty of ordinary care of a RP under common
law.
■ Custom
■ Generally—evidence that the defendant violated customary safety
precautions of the relevant community is sufficient to get the
plaintiff to the jury; professional standards and custom can create a
standard.
■ courts may use the internal operating procedures to determine what
the company itself viewed as reasonable care.
■ The court will then use that information as a factor in the ultimate
decision about what standard of reasonable care will be applied to
evaluate whether the company was or was not negligent.
■ Evidence of standard of care, but does not replace the standard.
■ Restatement Third
■ Departure from the custom of the community, or of others in like
circumstances, in a way that increases the risk” is evidence of that
person’s negligence"
■ “but does not require a finding of negligence.”
○ Compliance with Statute
■ Generally: Statutory compliance usually reflects a minimum standard of
care, not a maximum obligation
■ Violation of statute—can help establish negligence
■ Compliance with statute—does not dismiss ordinary duty of care
○ Res Ipsa Loquitur - Establishing Breach without Proof
■ Form of circumstantial evidence used to help establish breach when plaintiff
does not know what defendant did
■ Elements
■ This is the type of thing that ordinarily does NOT occur in the
absence of negligence;
■ Other responsible causes have been sufficiently dispelled; AND
■ Defendant had control at probable time of the negligent act
■ One instance where courts push back on the bring in everything tactic
■ Court says you need to choose to use res ipsa or providing evidence
of breach
■ Not uncommon for plaintiff to start with res ipsa then through
discovery amend complaint to take out res ipsa and put in specific
claim
■ Effect of using Res Ipsa
■ Only circumstantial evidence provided
■ Jury does not gave to accept, only an inference of breach
■ Plaintiff still needs remaining elements of negligence
■ Duty, causation, injury
■ Courts do not normally allow res ipsa to be used when multiple
parties are unconnected
■ i.e. pedestrian hit by 2 different cars
■ Some courts limited use in hospital/doctor/nurse cases and
nursing home/ems case
■ Both involved linked/connected businesses
2. Element #3 Cause in Fact (Actual Cause)
○ Who caused what?
■ Do you have multiple contributors to injury/injuries?
■ How many injuries?
○ Assessing responsibility when more than one party is present:
■ Separate out
■ Divisible:
■ 1 party is the cause of an injury (can parcel out which party is
responsible for which injury)
■ D1 breaks P's arm, D2 breaks P's leg
■ Each defendant pays for the injury they caused
■ Causal apportionment
■ But-for test typically applies to causal apportionment
■ Indivisible:
■ Injury is shared by multiple defendants
■ Jury will apportion fault percentage to each defendant
■ fault apportionment
■ But-for test can apply to fault apportionment, but not
always
○ Tests assessing if defendant's conduct caused plaintiff's injury:
■ But-For Test (General Test)
■ “But-for the defendant’s negligent behavior, the injury would not
have occurred.”
■ Hale v. Ostrow (2005) 219. Overgrown shrubs, broken sidewalk.
Court allowed Plaintiff to bring the suit against the property owner
of the bushes.
■ A defendant does not need to be sole-cause of an injury,
only a-cause of an injury.
■ But-for the defendant’s negligence, plaintiff would not
have had to step off crumbling sidewalk. Injury would not
have occurred.
■ Salinetro v. Nystrom (1977) 220. unknown pregnancy, x-ray,
recommended abortion
■ Court: If any injury were to happen anyway, then there is
no "but-for” causation.
■ Always use when divisible injury OR one actor.
■ If indivisible injury (multiples sources contribute to the
injury) OR concurrent sufficient causes (Anderson), or you
just plain aren’t sure, you might need to use the
“substantial factor” test
■ Often fails when there are multiple, independent sufficient
causes or in other kinds of cases where you know the
defendant was a factual cause but the "but-for" test would
allow defendant to escape responsibility
■ Court asks in these cases whether plaintiff should
lose for failure to satisfy the test when clearly the
defendants are factual causes to plaintiff's injury
■ Many say no and allow plaintiff's to use the
substantial factor test
■ Substantial Factor Test
■ Purpose of test is to denote the fact that conduct had such an effect
in producing the harm as to leave reasonable people to regard it as
a cause
■ Defined differently in court: material factor, contributing
factor, cause in the philosophical sense of responsibility not
insignificant, important
■ “If an actor’s behavior was a substantial factor in causing an
injury, they can be found to contribute to causation”.
■ Third Restatement embraces as well
■ If tortious conduct of one tortfeasor fails the but for test
only because there is another set of conduct also sufficient
to cause the harm, that defendant's conduct is STILL a
cause in fact
■ Used to hold negligent tortfeasors liable when but-for fails.
■ Lasley v. Combined Transport, Inc. (2011) 228. Combined
Transport truck had a spill, caused a traffic jam on the road. Lasley
was stopped there. A driver drunk and high on cocaine slammed
into him. Lasley sued Combined Transport alleging their
negligence contributed to his injury.
■ Court ruled that a defendant’s conduct is used to determine
whether the defendant was a substantial factor in plaintiff’s
injury. It does not relate to the standard of care.
■ When to use:
■ there were two acts or forces, set into motion by two
sources, and
■ each act or force would have been sufficient to
independently cause the plaintiff’s injury.
○ Who?
■ General rule: plaintiff must prove more likely than not (more than 50%)
that defendant caused injury
■ If plaintiff cannot do this then plaintiff loses
■ Exceptions:
■ Alternate Liability Theory
■ Bring when only one cause but you can't tell who
■ Bring all possible tortfeasors in court
■ prove all negligent (breach of duty), AND
■ Establish that the negligence prevents plaintiff from
determining who did what
■ Then burden of proof shifts to defendants to
prove "not me"
■ Defendants can't prove, then joint and
severally liable
■ “to avoid the unfairness of denying the injured person
redress simply because he cannot prove how much damage
each [tortfeasor] did, when it is certain that between them
they did all the damage, the tortfeasors are left to apportion
the damages between themselves when causation is
potentially indeterminable.”
■ Liability imposed on multiple tortfeasors who have all
breached a duty to the plaintiff, but there exists uncertainty
as to which tortfeasor proximately caused the plaintiff’s
harm.
■ Case examples:
■ Summers v. Tice (1948) 234. Summers was hunting with
two friends. Both of them fired their guns. A pellet hit
Summers in his eye. Only one of the two caused the
damage, but it is impossible to determine who it was.
■ Court decided to apply alternative liability Two
independent tortfeasors may be held jointly liable if
it is impossible to tell which one cause plaintiff’s
injuries, and the burden of proof will shift to the
defendants to either absolve themselves of the
liability or apportion the damages between them.
■ Ybarra v. Spangard (1944) 438. Ybarra went into the
hospital. He was put under for surgery, woke up with a
broken shoulder. During the time, he was handled by 8
different people. Impossible to determine who it was.
■ Court decided to apply res ipsa—there was
negligence. A patient does not normally wake up
with a broken shoulder without some negligence.
Court also applies Alternative Liability. Holds all
defendants at fault, and it is up to each of them to
prove “Wasn’t me
■ Joint and Several Liability (Majority)
■ Plaintiff can sue all tortfeasors together and hold
them individually (severally) and collectively
(jointly) liable
■ Plaintiff can choose which of the defendant to
collect from and how much
■ Paying defendant can go after other
contributing defendants for contribution
■ Only applies in indivisible injury cases where jury
apportions fault
■ If injuries are divisible, each defendant paus for the
injury caused
■ Causal apportionment
■ Several Only Jurisdiction
■ Comes up in two way
■ Causal apportionment: divisible injuries
■ Each defendant pays only what is
caused
■ Indivisible injuries
■ Jury apportions
■ Each pays only what it is assessed
■ Concert of Action Cases
■ Always works
■ All agreed and participated in tortious conduct
■ There was a conspiracy
■ Drag racing is a prime example
■ Market Share Liability
■ Many defendants, all made fungible (identical) product
■ Know way to know who made damaging one
■ Minority: join substantial share of market
■ Proof made
■ proof of breach of duty
■ Product caused
■ Or strict liability (defective and unreasonably
dangerous product)
■ Caused injury
■ Then burden of proof shifts to each defendant to
prove "not us"
■ Only severally liable
■ 4 general approaches
■ In Sindell v. Abbott Labs, 607 P.2d 924 (1980), the
California Supreme Court allowed recovery when
only a “substantial share” of defendants were before
the court, and held that any manufacturer unable to
prove that its drug did not injure the plaintiff would
be liable according to the manufacturer’s market
share.
■ Brown v. Superior Court, 751 P. 2d 470 (1988)
modified Sindell slightly by holding that DES
liability is several, and that a court should use the
national market in determining market share.
■ In Collins v. Eli Lilly & Co., 342 NW 2d 37 (1984),
the Wisconsin Supreme Court took a broader
approach to market share, holding that each
defendant was liable proportional to the amount of
risk the manufacturer created that DES would injure
the plaintiff.
■ The Washington Supreme Court took a different
approach, allowing defendants to exculpate
themselves by proving that they did not
manufacture the DES that injured the plaintiff.
However, all unexculpated defendants are then
presumed to have a market share of one hundred
percent, so that the plaintiff receives a full recovery.
■ Hymowtiz v. Eli Lilly & Co. (1989) 864.
Hymowitz (P) was a DES baby. Had a
signature injury. Her mother had no clue
which drug from which DES manufacturer
she took. NY legislature passed statute
extended Statute of Limitations to allow
suits against these drug companies. Court
applied a market share liability for
establishing harm. The court adopts the rule
from Sindell, that if a substantial number of
drug manufacturers were before the Court,
fault would be apportioned according to the
national market share (the most reliable way
of recovery”. This Is appointed by several
liability only. There is no chance for a drug
manufacturer to get out of paying this.
■ Enterprise Liability Theory—if the number of companies
in an industry are small, and all are present in an action, all
can be held liable.
○ Causal/Fault apportionment
■ Causal apportionment—determining which defendant(s) caused which
injury(ies).
■ Fault apportionment—dividing up the fault of each of plaintiff’s
injury(ies) among the defendants at fault.
■ Ways to apportion Fault
■ “Joint and Several”
■ Plaintiff can sue one, some, or all of the tortfeasors
■ If plaintiff wins, Plaintiff can collect all $ from only one defendant
■ IF plaintiff sues more than one and wins, and plaintiff collects
from one defendant, then the paying defendant(s) get right to
contributions from non-paying co-defendants
■ DYING MAJORITY, BUT A MAJORITY
■ Landers v. East Texas Salt Water Disposal Company (1952) 731.
Salt water from two companies overflowing.
■ Court overturned precedent to allow an injured party to
recover from defendants without having to prove but-for by
holding plaintiffs joint and severally liable.
■ “Several” Only (Proportionate Share Liability/Comparative Fault
Liability)
■ Plaintiff can sue one, some, or all
■ If plaintiff sues one and wins, jury will assess fault. Plaintiff can
only collect the % of $ from the defendant as allocated by the jury
■ BUT A party that is liable to another based on its failure to protect
the plaintiff from the specific risk of an intentional tort is jointly
and severally liable for the share of comparative responsibility
assigned to the intentional tortfeasor in addition to the share of
comparative responsibility assigned to itself.
○ Concurrent Cause Test
■ The concurrent-causes test for actual causation applies if:
■ multiple acts or forces combined to cause an injury, and
■ none of the forces alone would have been sufficient to cause the
injury.
■ Ex: 3 people each provide 2 alcoholic drinks to a minor.
Alone, 2 drinks would not have harmed the minor.
Together, 6 drinks harmed the minor.
○ Loss Chance of Survival/Recovery
■ Traditional Rule—for each element of negligence, the plaintiff must show
through a preponderance of evidence that each element is fulfilled. “the
plaintiff cannot recover for loss of an opportunity to survive or an
opportunity to achieve a better result unless the opportunity was greater
than 50%”
■ Plaintiff must show that it was more likely than not that the plaintiff would
have survived through injuries were it not for the doctor’s negligence
■ Relaxed Causation Tests—Some courts allow recovery when the
damage is less than 50% loss of chance of survival. This is the
substantial factor test. Plaintiff can recover by showing the
“defendant’s conduct destroyed a substantial possibility of
achieving a more favorable outcome.”
■ Lost Chance—some courts hold that the “loss of
chance/opportunity” is the injury itself that is recovered for.
■ Increased chance of risk—general rule is that the increased lifetime
risk because of medical malpractice is not generally recoverable.
■ What injury did defendant cause:
■ Several issues
■ Scientific cause issue
■ i.e. did leaving sponge in stomach cause stomach
cancer?
■ Loss chance of better outcome (and increased risk of future
harm)
■ Limited to medical malpractice
■ Did the medical professional's negligent conduct
increase the change of injury, decreased lifespan,
etc.?
■ MOST: say plaintiff must prove injury more likely than not
■ Growing Minority: Mohr
■ Whatever the loss is, prove it will occur more likely than
not
■ Same issue with increased risk of future injury
3. Element #4 Proximate (Legal) Cause – Scope of Liability
○ Limiting Principle
■ Majority: scope of the risk test
■ You are only liable for the risks you could have anticipated at the
time of your conduct
■ Foreseeable risks, injuries
■ Minority: direct cause test
■ Once negligent you are liable for whatever results
■ Even if not foreseeable
■ Unless: unforeseeable intervening cause breaks chain
○ Assessing Scope of the Risk
■ As long as what happened was a variant of the foreseeable then the chain
of liability is not broken
■ Do not need to foresee exact details or manner of occurrence
■ Thin skull says you take plaintiff as you find plaintiff (extended liability
doctrine)
■ As long as initial injury is foreseeable, defendant is liable for the
unforeseeable extent of the injury
○ Intervening causes
■ After defendant's negligent but BEFORE plaintiff is injured, something
comes in between to cause the injury
■ Vocabulary:
■ Intervening = “was foreseeable”
■ does not remove legal liability
■ Superseding = “was not foreseeable”
■ completely removes legal liability (unless exception)
■ intervening and superseding forces cannot precede the defendant’s
negligent conduct.
■ Majority:
■ Was the intervening cause natural, normal, foreseeable
consequence of the risk created by defendant's conduct?
■ If yes then chain of liability not broken
■ This applies to intentional, criminal, negligent intervening causes
■ Strong minority
■ R3d and Trend: ignore the intervening cause
■ Was the thing that happened within the scope of the risk?
■ Act of God
■ Doesn’t need to be foreseeable as long as same risk of harm
manifests
■ Thing that made your conduct negligent (i.e. leaving something out
in the open) can't argue that an unforeseeable act of God (i.e.
strong wind) blew it and caused injury saves you from liability
■ Still negligently left item, negligence was waiting for a
secondary thing to come along
■ Can't say just because it was stronger than expected, that it
changes that fact
■ Suicide
■ Supersedes liability, unless:
■ Duty to prevent suicide (custodial relationship); or
■ Defendant caused uncontrollable impulse in plaintiff to
commit suicide
■ Marcus v. Staubs (2012) 272. Marcus provided alcohol to
the Staub sisters. They got drunk. They asked Marcus to
drive them home. He refused. The sisters stole a car,
crashed. Marcus argued the sister’s criminal activity was
superseding cause. Court ruled that a tortfeasor’s
negligence is not excused by intervening cause if that
intervening cause was foreseeable. Juries determine the
extent of the foreseeability of intervening causes.
■ Derdiarian v. Felix Contracting Corp. (1980) 280. Felix
Corp. was doing roadwork. They had no barriers around the
area, and only one employee flagging people. They had a
hot kettle of 400-degree liquid enamel. Derdiarian was a
subcontractor doing work. Dickens forgot to take his
epilepsy medication, had a seizure, drove through the work
zone, hit Derdiarian. He sued. Trial court found for
Derdiarian. Felix argued that the Dicken’s negligence was
not foreseeable and was an intervening cause. Court of
Appeals affirmed ruling. An intervening act between the
defendant’s negligence and the plaintiff’s injuries will not
break the causal connection and cut off liability if the
intervening act was reasonably foreseeable.
○ Second injuries
■ Occur after defendant's negligence caused the first injury to plaintiff
■ Defendant is still liable if
■ Second injury is foreseeable; AND
■ Usually medical malpractice
■ If plaintiff re-injures self as natural, normal consequence of
impairment
○ Firefighter’s Rule: Professional and Non-Professional Rescuers
■ Generally
■ Danger invites rescue
■ An injured, non-professional rescuer
■ can recover for injury suffered in the middle of rescue
■ Can sue defendant
■ A rescuer can be sued if they acted recklessly
■ Professional Rescuers cannot recover
■ Justification for rule
■ They signed up for the duty to rescue
■ It is not always foreseeable to make property safe
for rescuers or their type of rescue
■ Professionals get workers compensation (can't have
them get compensated for injuries and then have
plaintiff pay out even more money)
■ Taxpayers already pay for salary
■ Exceptions
■ Δ engaged in willful, wanton or intentional conduct
(Arson)
■ Injury arises from violation of fire-safety statute or
ordinance
■ The injury results from risks not inherent in the job
OR separate & apart from risk bringing you to the
scene the rescuer has undertaken
■ Δ knew/should have known of the danger the
professional rescuer faced & had opportunity to
warn the professional rescuer but did not
1. Element # 5: Injury
○ Plaintiff has burden of proof that she has an injury
○ Not all "injuries" are recognized
■ Watch out for limits on emotional, fear
■ loss chance not an injury unless it exceeds 50% threshold
○ Thin skull/skin: defendant takes plaintiff as he finds him
○ Actual harm required
■ We do not assume harm just because defendant is negligent
■ Courts do NOT award "nominal" damages for merely negligent conduct
■ Even if defendant is negligent, plaintiff has to prove, more likely than not that
plaintiff sustained an injury from defendants conduct
■ Cant do then no liability
■ Liability for negligence without proof of injury is different from intentional
torts
■ An unreasonable interference is not the same as an intentional one
■ Former is not considered a significant interference with public interest
such that there is any right to complain of it, or to be free of it without
evidence that it caused harm
○ Questions to ask:
■ Does plaintiff have evidence of an actual injury?
■ Is what the plaintiff has offered an injury the court recognizes?
■ What about a change in blood pressure/heart rate, loss of brain cells,
etc. do these county?
■ Loss chance of better outcome?
■ Pure emotional harm unaccompanied by an actual physical injury?
■ Phobias? Fear? Emotional distress
■ For a long time courts did not recognize this as an injury
■ Today: limited duty
■ Pure property damages
■ Tort protects injury to persons and property
■ What about loss of business? Loss of benefit of bargain?
Product stopped working?
■ No personal injury, no risk of harm, pure economic loss
■ General rule is you cannot recover
■ Property interest invaded has to be connected to risks
of unreasonable harm to others
1. Negligent Infliction of Emotional Distress (NIED)
○ Traditional Rule: no recovery for purely emotional damages
■ Exceptions
■ Death messages/telegrams
■ Okay if there is some physical impact on plaintiff
■ Physical injury that preceded the emotional harm; then
emotional damages recoverable as “parasitic to” the “real”
harm.
■ Today only 4-5 states
■ If physical manifestations with objective symptoms
■ Minority today
■ TODAY: follow R3d §§ 47 and 48 as majority rule
○ Stand alone NIED claims today
■ Small group: allow
■ This is a negligence claim
■ Emotional distress is an injury
■ P 642
■ Small group:
■ No claim
■ Stand alone emotional distress is NOT an injury
■ Note 1 p 625
■ Small group:
■ Need touch. Physical impact
■ Then we will believe it
■ MAJORITY: §§ 47 and 48
○ Direct Victim R3d § 47
■ This is a foreseeable plaintiff
■ Duty owed to this person
■ An actor whose negligent conduct causes serious emotional disturbance to
another is subject to liability to the other if the conduct:
■ Places the other in immediate danger of bodily harm and the
emotional disturbance results from the danger (Zone of Danger
Test)
■ Plaintiff feared for their own safety
■ OR, occurs in the course of specified categories of activities,
undertakings, or relationships in which negligent conduct is
especially likely to cause serious emotional disturbance
■ Zone of Danger—allows recovery for plaintiff’s who were placed “in
immediate risk of physical harm” without physical injury
■ Catron v. Lewis (Neb. 2006): Plaintiff was driving daughter’s
friends. Jet ski struck and killed girls.
■ Court allowed NO recovery for emotional distress because
plaintiff was not in the zone of danger
■ Had to be in zone of danger to recover.
■ What plaintiff must allege/prove:
■ Defendant owed a duty to exercise reasonable care towards
foreseeable plaintiffs
■ I was put in fear for my safety, OR the relationship/undertaking
was especially likely to cause severe emotional disturbance
■ Breach of duty
■ Cause in fact
■ Injury
■ I suffered severe emotional disturbance
○ Bystander R3d § 48
■ An actor who negligently causes serious bodily injury to a third person is
subject to liability for serious emotional disturbance thereby caused to a
person who:
■ Perceives the event contemporaneously; AND
■ Presence at the injury producing event and is then aware
that it is causing injury to the victim
■ Is a close family member of the person suffering the bodily injury
■ Jurisdictions define close family members as
■ Spouses
■ Most now allow fiancés
■ Children
■ Parents
■ Siblings
■ Relatives residing in the same household
■ What plaintiff must allege/prove
■ Claim is derivative of claim to third person
■ Harder to prove than direct victim
■ Defendant negligently caused serious bodily injury to a third
person
■ Duty
■ Breach
■ Cause in fact
■ Proximate cause
■ Serious bodily injury to third person
■ I am closely related to third person
■ I perceived the event contemporaneously
■ I was present at the injury producing event; AND
■ I was then aware that it was causing injury to the victim
■ I suffered severe emotional disturbance
○ What if there was no risk of injury present? Burgess P. 638
■ Court invents new rule; if Defendant assumes duty to plaintiff, and
violates that duty, then the plaintiff can be a direct victim for purposes of
emotional distress damage
■ Funeral homes/directors
■ Hospital and medical professionals
1. Fear (stand alone)
1. Not uncommon to accompany a physical injury
2. Fear of Cancer
1. Physical injury
■ You recover for the physical injury and attach the emotional as a
parasitic claim
2. No physical injury: Follow Potter
■ Negligence elements established; AND
■ Actual exposure to cancer-causing substance; AND
■ Fear from knowledge, corroborated by reliable medical or
scientific opinion that more likely than not plaintiff will develop
cancer
1. Over 50% chance
■ Recall loss chances case
3. Damages
■ Damages for fear allowed, including medical monitoring costs
3. Fear of HIV
1. Mere physical injury (i.e. needle prick) not enough
2. Need ACTUAL exposure (to blood/bodily fluids) that are infected with
HIV
3. Exposure must occur via channel or transmission deemed medically or
scientifically sufficient to receive the infection
4. Damages
■ Medical monitoring PLUS damages for emotional distress suffered
during the "window of anxiety"
1. i.e. traditional rule was the first 6 months of exposure
2. Loss of Consortium:
1. Elements
1. You tortiously injured my spouse
■ not girlfriend, not boyfriend, not significant other, not partner, etc.
Courts SLOWLY changing but this is still minority
2. As a result, my personal relationship w/ injured person was damaged. Our
company, support, services, love, companionship, affection, society,
sexual/intimate contacts, solace, etc. suffered
2. NOTE:
1. The claim is DERIVATIVE!
■ if the spouse loses the first claim—was not tortiously injured or
was comparatively at fault in contributing to the injury, etc. this
directly affects the loss of consortium claim
3. PARENTS/CHILDREN:
1. SLIGHT MAJORITY:
■ Now allow minor (BUT NOT ADULT) child to recover for the
loss of the parent’s consortium although this is arguably more
troublesome since one act of negligence can result in multiple loss
of consortium claims
1. Parent with 5 kids. All 5 kids sue.
2. Loss of child
■ Parent cannot recover for loss of consortium
3. Prenatal Duties (duty to the unborn)
1. Restatement S.869: One who tortuously injures a fetus can be liable for injuries if
the fetus is born alive
1. Courts have read in "but not the mother"
■ Mothers cannot be liable
2. Most courts allow claims for injuries to fetus if the fetus is subsequently
born alive
■ Someone on behalf of the baby will bring a negligence action
against non-mom defendant
3. Used to require viability of the fetus
■ Fetuses that were capable of sustaining life on their own at time of
injury (usually starting around 20 weeks) could bring claim
■ MOST: have rejected viability. Now must be born alive to bring
claim
2. Fetus is a stillborn
1. Note 4 p 655
2. Most courts will allow the claim under the state's wrongful death statute IF
■ The wrongful death statute considers a fetus a person, AND
■ The fetus was viable at the time of the injury
1. Was "Alive" for purposes of the claim (usually starting at
20 weeks)
3. Preconception Negligence (liability limited to medical professional world)
1. Majority: yes, If a health care professional caused the injury
2. No: for non healthcare professional
■ i.e. drunk driver hits care with 16 year old who suffers injury to
uterus. Injury causes birth defect in child she conceives 7 years
later
4. Wrongful Birth
1. Yes for nonhealthy babies
■ Damages:
1. Damages for extraordinary expenses as a result of the
disability
2. No damages for ordinary expenses of raising a child
■ Wrongful birth parents wanted children and were
prepared for the normal expenses of raising a child
3. No emotional distress damages
2. If baby born healthy
■ Damages
5. Wrongful conception (negligent sterilization)
1. If healthy: Parents normally entitled to recover
■ The medical expenses of the ineffective sterilization procedure
■ The medical and hospital costs of the pregnancy
■ Expense of subsequent sterilization procedure
■ Loss wages
■ Loss of consortium to the spouse
■ Medical expenses for prenatal care, delivery, and postnatal care
■ NO EMOTIONAL DISTRESS
2. If not healthy, in the event of the birth of a child who suffers congenital
defects
■ Special medial and educational expenses beyond normal rearing
costs should be allowed
■ Extraordinary costs of maintaining a handicapped child would not
end when the child reached majority
■ Emotional distress damages
6. Wrongful Life
1. 99% of jurisdictions reject these claims
4. Affirmative Defenses to Negligence
1. Procedural
1. Statutes of limitations
2. Motions to dismiss
3. Wrong defendant
4. Wrong court
5. Etc.
2. Substantive
1. Immunities
2. Illegal conduct
3. Avoidable consequences/failure to mitigate
4. Contributory negligence
5. Comparative fault/responsibility
6. Assumption of the risk
■ Express
■ Primary
■ Secondary
7. Product misuse and alterations
3. Immunities
1. Regular defense
■ Public duty rule:
1. Government owes common law duties of care to the public
at large, not individual
2. Unless there is a statute to the contrary, the common law
duty looks at duty to individual in 3 areas:
■ A special relationship existed between the
governmental agency and the wrongdoer
■ i.e. wrongdoer was in state's custody/care
■ A special relationship existed between the
governmental agency and the injured person
■ i.e. the injured person was in the state's
custody/care
■ Or, the government agency performed an
affirmative act that caused injury or made a specific
promise or representation that under the
circumstances created a justifiable reliance on the
part of the person injured
■ Official immunity (affirmative defense)
1. The doctrine of official immunity shields a police officer
from liability for negligence in the performance of his
discretionary, as opposed to ministerial, duties
2. Consider:
■ The nature of the officials duties
■ The extent to which the acts involve policymaking
or the exercise of professional expertise and
judgement
■ And the likely consequences of withholding
immunity
■ Public duty doctrine and Official Immunity often overlap (but don't
have to)
1. Defendant can assert both
2. The public duty doctrine is defined differently than the
official immunity doctrine
3. The public doctrine holds that a public official or employee
may NOT be held liable to a person injured by his
negligence in the performance of his public duty
■ BECAUSE his duty owed only to the general
public, not the person injured
4. Public OFFICIAL: rarely if ever will the public duty
doctrine shield from liability where official immunity
doctrine would not
5. The two doctrine often produce the same result
6. It may be that the public duty doctrine will furnish
protection to a public employee who is not a public official
in a case where the official immunity doctrine would not
■ i.e. public employee = teacher (not an "official")
4. Contributory Negligence (only 4ish states – Traditional Rule)
1. Complete bar on recovery: All or nothing
■ Despite fact that defendant was also negligent
2. Elements:
■ Defendant has to more, more likely than not, that
1. Plaintiff failed to exercise reasonable care for own safety;
AND
2. That failure was the actual and proximate cause of
plaintiff's injury
3. Not a defense for
■ Reckless acts
■ Intentional acts
5. Comparative Responsibility (New Rule)
1. Almost all jurisdictions say that P can still recover even if P shared a
portion of fault, it should represent a loss of damages.
2. Elements (same as contributory negligence): Δ must prove, more likely
than not, that:
■ Plaintiff failed to exercise reasonable care for own safety &
■ that failure was the actual & proximate cause of plaintiff's injury.
3. "Pure" jurisdictions (12ish states)
■ As long as plaintiff is not 100% at fault, plaintiff can recover
4. "Modified" jurisdictions
■ Version 1: 20 states
1. Plaintiff can recover (minus plaintiff's assessment) as long
as plaintiff's not greater than the given defendant
2. Will look at each defendant separately for our exam
■ Tie goes to plaintiff (50-50 okay)
■ Version 2: (12ish states)
1. Plaintiff can recover (minus plaintiff's assessment) as long
as plaintiff's assessed responsibility does not equal given
defendant's
■ Tie goes to defendant (50-50 NOT okay!)
5. Questions to Consider
■ Was the plaintiff negligent? (Breached own duty of care?) (if no,
defense fails)
■ Was the plaintiff’s negligence the actual and proximate cause of
own injury? (If no, defense fails)
■ Was the defendant negligent (5 elements) (If not, defendant wins)
■ Is plaintiff’s conduct a superseding cause (unforeseeable) (if yes,
defendant wins).
1. Factors to Consider in Comparing Negligence
■ Whether the conduct was inadvertent or involved in the awareness
of danger
■ How great a risk was created by the conduct?
■ The significance of what was sought by the conduct
■ The actor's capacities
■ Any extenuating factors that might require the actor to proceed
with haste
■ Judge Posner: "the required comparison is between the respective
costs to the plaintiff and to the defendant in avoiding the injury"
(Risk Utility Approach)
6. Avoidable Consequences
1. A plaintiff's failure to take reasonable steps to mitigate damage BARS
RECOVERY
2. Not in totality but only for the damages which might have been avoided
by reasonable efforts
3. Defendant must prove the worsen injury as result of the failure to mitigate.
■ Defendant can’t prove, more likely than not, π’s failure caused this
additional injury
1. Defendant loses.
4. Can be all or nothing:
■ Plaintiff doesn’t take medicine and now foot must be amputated.
1. Defendant not responsible for that.
5. Policy factors in allocation of risks to the defendant. "the policies involved
when judges limit comparative fault defenses include:
■ Plaintiff incapacity
■ Structural safety (defendant can be expected to take care of
plaintiff)
■ Role definition (defendant owes an obligation)
■ Process values (litigating comparative fault would harm litigants)
■ Fundamental values
■ Autonomy and self-risk (plaintiff's negligence only created risk to
others, so more latitude for plaintiff's choice.)
7. What juries consider when apportioning fault
1. Most courts do not give juries any guidance
2. Restatement 3rd § 8 Factors for assigning shares of responsibility:
■ The nature of the person's risk-creating conduct, including any
awareness or indifference with respect to the risks created by the
conduct, and with any intent with respect to the harm created by
the conduct; AND
■ The strength of the causal connection between the risk-creating
conduct and the harm
3. Consider:
■ How unreasonable the conduct was under the circumstances
■ The extent to which the conduct failed to meet the applicable legal
standard
■ The circumstances surrounding the conduct
■ Each persons abilities and disabilities
■ Each person's awareness, intent or indifference with respect to the
risks
4. Consider with respect to the Strength of the causal connection
■ How attenuated the causal connection is
■ The timing of each person's conduct in causing the harm
■ Comparison of the risks created by the conduct
■ The actual harm suffered by the plaintiff
8. Additional Doctrines that Arise in Affirmative Defenses (Exceptions to Allor-Nothing Approach)
1. Common law
■ Public policy argument to protect plaintiff from own conduct
2. Statutes designed to protect plaintiff from self
3. Rescue doctrine
■ Rescuer injured during rescuer
1. Ordinary negligence will not bar plaintiff
2. Rescuer's injuries must be a result of reckless conduct
before bar applies
■ Rescuer is injured during rescue wants to sue defendant in negligence,
defendant raises contributory negligence
■ Courts:
1. Ordinary negligence of the rescuer will not be used against the
rescuer; rescuers conduct must amount to reckless conduct
before rescuer’s fault will be assessed and bar or reduce recover
4. Reckless/intentional misconduct
■ Apples/oranges
1. Can’t compare apples with oranges
2. If intensity of negligence is not on the same level can’t compare
■ i.e. Intentional tort can’t be compared to negligent act
■ This rule still applied in contributory negligence
jurisdictions
■ Super minority rule (maybe 5 states that follow
contributory negligence)
■ Note: Restatement takes not position
5. Entitlement concept
■ Plaintiff had right to engage in the conduct
6. Unlawful acts Doctrine
■ Plaintiff's participation in an illegal activity
■ Majority: no longer a complete bar
1. Reduction
■ Challenge is: what conduct counts
9. Last Clear Chance
1. Defense for the plaintiff when suing in negligence
2. Defendant asserts contributory negligence
■ If plaintiff can say you were last clear chance to avoid the injury,
plaintiff’s contributory negligence goes away
3. Discoverable Peril Doctrine
■ Defendant is negligent
■ Plaintiff is negligent
■ Plaintiff's negligence renders him HELPLESS
■ Defendant then discovers or should have discovered plaintiff's
helpless condition in time to avoid the injury
■ If plaintiff is inattentive, defendant must actually discover in time
to avoid
10. Assumption of the Risk
1. Express
■ Writing, oral
■ If a contract, factors to consider when determining if the contract
enforceable:
1. Is defendant performing a service of great importance to
the public?
■ Practical necessity for some members of the public
2. Does defendant have decisive advantage of bargaining
strength against those seeking service
3. Are we talking about a standard adhesion contract of
exculpation
4. Does it offend public policy
■ Try to exclude liability for defendant's intentional
conduct
■ i.e. does the document "unfairly" attempt to
take away plaintiff's choice-almost a
compulsory assumption
5. Is it otherwise unconscionable, unclear, ambiguous?
■ Scope:
1. What does it cover
2. Cant exclude gross negligence, intentional misconduct
3. Anything inherent in the activity assumed
■ Express assumption = total bar on recovery
2. Implied assumption of the risk
■ Based on conduct
1. Not express, no contract
■ Original rule
1. Total bar to recovery
2. Still lives in those jurisdiction that follow contributory
negligence doctrine
■ 4-5 states
■ Trend
1. Makes no sense to have contributory responsibility reduce
assumption of the risk bar
2. Assumption of the risk now merged into contributory
responsibility models
■ Either via statute or common law
3. Many courts follow
■ Primary v. secondary
1. Primary
■ Plaintiff, by mere participation relieves defendant in
advance of any duty of care
■ Primary assumption of risk i.e. no duty
■ Example: plaintiff goes to work for person with
Alzheimer's, person known to be violent.
■ Taking job, plaintiff relieving defendant of
duty of due care
2. Secondary
■ A duty of care exists
■ Talking about plaintiff's contribution to the injury
■ Secondary assumption of risk
■ i.e. housekeeper trips on toy on stairs
■ Court: no duty situation, homeowner owes
duty to provide reasonably safe place for
employees to work
1. Sports
○ Spectators
■ Most: ask if injury is a result of risk inherent in activity
■ Dangers that cannot really be eliminated with reasonable care,
unavoidable, ordinary risks of activity
■ If yes, no duty owed
■ By participation you agree no duty to protect you
○ Baseball Rule
■ Dying majority
■ Only duty is to provide screened seats for as many spectators as may be
reasonably excepted to call for them on any ordinary occasion
■ Some say: mere duty to provide a choice
○ Participants
■ Majority: did the injury occur as result of risk inherent in the sport
■ Yes: no duty
■ By participating you limited duty by defendant
■ Complete bar
■ Need risks beyond inherent
■ Duty is to avoid reckless or intentional injury
■ Violation of rules do NOT necessarily affect outcome
■ Merely violating a rule isn't ground around the inherent risk
bar
■ notes:
■ While there is no duty for injuries incurred in connection with
dangers that are normal/inherent part of sport
■ The bar does NOT include:
1. Defective equipment
2. Unsafe playing area
3. Hits after call/game over
2. Recoverable Damages
○ Compensatory
■ Designed to compensate, make plaintiff whole
■ Includes
■ past and future medical expenses
■ Loss wages
■ Future earnings
■ Pain and suffering
■ Emotional distress
■ Damage to property
■ Etc.
○ Punitive damages
■ Rare
■ Designed to punish and to deter
■ Misconduct plus malice or reckless disregard to the extremely high risk of
injury
■ Not reduces by plaintiff's fault
Wrongful Death and Survival Actions
1. Common Law View
1. Cause of action died either with defendant or plaintiff or both.
2. There was no separate cause of action on behalf of those who were dependent
upon the deceased person.
1. Required Statutes to enable a cause of action after a defendant or plaintiff
had died
2. Survival Actions: Statutes that allow the cause of action to survive the death of the
plaintiff, the defendant, or both
1. If the defendant did NOT wrongfully cause death, and either the
1. decedent had claims against others at the time of death or
2. that others had claims against the decedent, those claims survive
2. Estate representative appointment by court to handle
3. Wrongful Death: Statutes that allows independents to file a cause of action for the loss of
decedent.
1. Vehicle only, need a tort claim and all elements of tort to establish
2. Intended to compensate for the losses plaintiffs have sustained because of a
wrongful killing. Loss of Consortium.
3. Procedure:
1. Identify who can bring a claim (usually family)
2. Prove tort of defendant wrongfully caused the death
3. Determine what damages are recoverable
4. Defenses
1. Decedent’s contributory negligence or assumption of risk
2. Beneficiary’s contributory negligence or assumption of risk
3. Statute of limitations: Most jurisdictions say claim must be brought within 2
years of the death
5. Damages
1. Pecuniary damages (lifetime worth of a person, all the money a person may have
gained over the course of their life).
2. Non-pecuniary damages (occasionally)—damages for pain, suffering, and
emotional distress
3. Funeral costs
4. Damages decedent may have recovered between the time of injury and the time of
death (hospital bills and such)