Torts Outline
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Purposes of Torts:
o The legal rules that cover liability and compensation for personal injury and death caused by the
intentional or careless conduct of a third party.
o The purposes are:
 Compensation: making plaintiff whole
 Deterrence: punitive
 Loss-shifting: to those causing injury
 Avoidance of undue burdens on economic activities
 Effective and efficient legal process
 Fairness: provides rules and limits to punishments
 Protection of:
 Physical integrity: avoiding bodily harm
 Dignity interest: personhood
Intentional Torts:
o Basic elements of all intentional torts:
 Act by the defendant: volitional movement
-emotion does not destroy free will
 Intent: specific (purpose, desire) or general intent (knowledge)
 Transferred intent: b/t intentional torts
 Actor may intend to commit an intentional tort against one person but instead
commit:
 a different intentional tort against the same person OR
 the same intentional tort against a different person OR
 a different intentional tort against a different person
 Actor’s initial intent transfers to the tort actually committed or the person
actually harmed.
 Can be single or dual intent:
 Single: the defendant intended the act/contact
 Dual intent: the defendant intended act/contact AND for contact to be harmful.
Jurisdiction determined.
 Causation: but-for test and substantial factor (if it makes sense)
o
Battery
 Rule:
Battery occurs when Defendant intentionally causes harmful or offensive contact to a
person.
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Tests for each element:
 Intent: D’s purpose was to cause harmful/offensive contact or apprehension of,
OR D knew the conduct was substantially likely to occur
 Test 1: D’s purpose/desire was to cause the contact or apprehension
(subjective state of mind) of such contact
 Test 2: D knew such contact was substantially certain to occur
(subjective)
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 Test 3: transferred intent- if D meant to cause apprehension of such
contact to A but contact actually happened to B, intent transfers.
Causation/volition
 Test: but for D’s affirmative voluntary act P would not have been
harmed.
Harmful or offensive contact
 Test: harmful or offensive conduct to a reasonable sense of personal
dignity
 Everyday life contact does not count (people are assumed to have
consented to daily life things)
 Anything that the person did not consent to
To a person
 Test: to a person’s body or something attached or closely associated.
Assault
 Rule:
An assault occurs when a person intentionally causes apprehension of imminent harmful
or offensive contact, or attempts a battery or false imprisonment and fails.
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Affirmative voluntary act: words alone are insufficient
Intent: to cause apprehension (expectation) OR a failed battery
 D’s purpose or desire is to cause the apprehension or D attempts a battery or
false imprisonment and fails
 Or D had substantial certainty
 Transferred intent (if meant to cause it to one person, but ended up causing it
to another person, intent transfers)
Causation/volition: but for causation
Reasonable apprehension of imminent harmful or offensive contact: such as battery or
false imprisonment
 Imminence of threat- no significant delay
 Apparent ability to carry out threat
 P must be aware of threat
 Fear not necessary (apprehension=expectation not fear)
 Reasonable awareness (exception: defendant knows of plaintiff’s sensitivity)
 No physical injury is necessary
To a person
 Test: to a person’s body or something attached or closely associated.
Intentional Infliction of Emotional Distress
 IIED occurs when a person intentionally commits extreme and outrageous conduct to
a person in order to cause severe emotional harm.
 Outrageous conduct
 exceeds bounds of decency/socially tolerable conduct
 outrageous conduct is a normative decision
 tends to be based on community standards (can vary b/t areas)
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 words only may be sufficient- but then you enter difference b/t free vs. hate
speech
 Factors to consider:
 Abuse of positions of power- special or unequal relationships such as
employer/employee; special relationships can create conditions for such
conduct
 Targeting plaintiff’s vulnerabilities or susceptibilities- identity, or mental
illness or example
 Repeating “undesirable acts” or behavior- repetition such as stalking
 Threatening or committing acts of violence- threats to kill for ex
 discrimination
Intent OR recklessness- purposefully desire to cause such or substantial certainty
 Purposeful desire to cause such emotional distress
 Substantial certainty
 Reckless (high degree of risk of emotional harm and D acts in conscious
disregard of risk)
Causation/volition
 But-for causation
 Affirmative voluntary conduct
Severe emotional harm- by reasonable person of ordinary sensibility standard.
 Consider evidence of significant emotional anguish
 Consider intensity and duration, objective evidence not necessary
 Severe emotional distress can be corroborated by physical problems, or by the
outrageousness of the conduct (courts often rely on this)
-evidence of E+O is enough to be evidence for severe emotional harm
 Objective evidence not required but helpful
 Must be directed at plaintiff UNLESS:
 Secondary party exceptions: family members present and known to
plaintiff
-must show a prima facie case of IIED or
-and they are present at the time (defendant must know of plaintiff’s
present and relationship to target)
Justifications: making plaintiff more whole than just for physical/economic damages.
 Allowing IIED helps meets goals of torts: fairness, deterrence, encourage legal
process, efficiency, make plaintiff whole
 Arguments against:
 because so subjective, difficulties of proof/causation, because of this
some courts require physical injuries as “proof”
 Sometimes considered as a way of getting around requirements of
battery and assault
 there is reticence on part of jury/courts/defendant
 IIED =/= emotional damages b/c the moment you win on a cause of
action, you can get damages based on a wide range of factors
 IIED tends to lose (has to be very outrageous behavior)
o
False imprisonment
 Rule:
False imprisonment occurs when a person intentionally confines someone to a bounded
area with either actual or apparent boundaries with no reasonable means of escape. The
person must aware of the confinement or be otherwise harmed.
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Confinement
 Plaintiff must be aware of confinement or be harmed
 Actual or apparent barriers
 Accidental barriers are not sufficient
 No reasonable means of escape
 No heroism or embarrassment should be necessary
 Only brief time required (effectively irrelevant)
Of a person
Causation/volition
 But for causation
 Affirmative voluntary conduct
 Words alone may be sufficient
Intent
 Purpose or desire to cause confinement
 Substantial certainty
 Transferred intent
Privileges/defenses:
 Shopkeeper’s privilege:
 Merchant can detain if there is “probable cause”
 Racial profiling is unreasonable and not privileged
 Allows for limited (reasonable) investigation
 Only reasonable time of detention
 Nominal harm is enough for false imprisonment in CA
Examples:
 Acts of binding (grabbing someone’s arm)
 Cannot be falsely imprisoned if you are locked outside your house (not a
bounded area)
 False arrest
 intentional restraint
 Invalid if there is no scope of authority, consent, outside of scope,
wrongful process, or some other wrongful reason
 No privilege within the situation
Conversion
 Rule:
Conversion occurs when a person intentionally takes control over another’s chattel that
seriously interferes with owner’s rights.
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Intentionally exercising dominion or control over a chattel which seriously interferes
with owners’ rights
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D is liable for full value of chattel (“forced sale concept”)
Wrongful transfer and detention, substantial change, severe damage or misuse
The longer and more extensive the use of the chattel the more like it is conversion
rather than trespass to chattels
Trespass to Chattels
 Rule:
Trespass to chattels occurs when a person intentionally disposes or intermeddles with the
personal property of another.
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Intentionally disposing temporarily or using or intermeddling with the chattel (personal
property) of another
D is liable for harm or damage done to chattel (loss of value)
Liability for harm is limited to one of 4 scenarios in TC:
➢ D dispossesses P of the chattel
➢ Chattel is impaired in condition, quality, or value
➢ P is dispossessed of the property for a substantial period
➢ P suffers physical harm
Trespass to Land
 Rule:
Trespass to land occurs when a person intentionally and physically invades another’s
property without consent.
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Intentional physical movement onto land
Cover intention/causation
Nuisance
 Rule:
A private nuisance is an intentional and unreasonable act that interferes with the use and
enjoyment of one’s land, such as air and water pollution, noise, and bad odors
 Unreasonableness test:
1. Gravity of the harm outweighs the utility of the conduct
2. The conduct is useful but the harm caused by the conduct is serious and
compensation for it would not jeopardize the conduct
3. The harm is severe and greater than the injured party should bear
without compensation
 Injunctions:
 After determining if an act is nuisance, then you determine if there
should be an injunction
 Whether the court should issue an injunction based on equitable
considerations, such as:
-community factors: jobs at stake, economic benefit, community
benefit, public school funding
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Rule:
A public nuisance is an unreasonable act that inconveniences or interferes with public
rights, common to all, such as operating a gambling resort or prostitution house.
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 Unreasonableness factors for a public nuisance:
1. Conduct involve significant interference with public
health/safety/peace/comfort/convenience
2. Conduct is banned by statute, ordinance, regulation
3. Is continual nature or has a permanent or long-lasting effect, and the
actor knows or has reason to know that it has significant effect on public
right
Differences from trespass:
 Trespass= direct invasion, excludes intangible intrusions such as smoke
Defenses
 Self-Defense
 Rule:
Self defense may be asserted as a complete defense if there is apparent or actual
necessity that the defendant reasonably believed in, and to which the defendant
reasonably responded to.
 Actual or apparent necessity
 Defendant reasonably believes in necessity
 Defendant must reasonably and sincerely believe in imminent threat
(subjective and objective standard)
 Reasonable force to the threat
 Even if the force is unreasonable, if it is reasonable in light of the
defendant’s sincere belief
 This rule does NOT apply in deadly force situations
 Limitations:
 Retreat rules
Majority: there is no duty to retreat regardless if deadly forces
are involved
Minority: there is a duty to retreat if the not retreating would
require serious bodily harm
Castle Doctrine exception: if you’re in your house or car
 Verbal provocation
 Excessive force
 Aggression- aggressor cannot claim self defense
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Defense of Others
Rule:
Defense of others may be asserted as a complete defense if there is apparent or actual
necessity that the defendant reasonably believed in, and to which the defendant
reasonably responded to.
 Apparent or actual necessity
 Majority: Same rules as self-defense: requires reasonable belief and
reasonable force
 Minority: says the defendant must step in the shoes of the person
they’re defending. If the person one is defending is actually the
aggressor then this defense does not apply.
 Reasonable force: same rules as self-defense
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Defense of Property
Rule:
Defense of property may be asserted as a defense to liability if there is apparent or actual
necessity that the defendant reasonably believed in, and to which the defendant
reasonably responded to.
 Possessor of land or chattels may:
 Use reasonable force (meeting force with force)
 If reasonably necessary:
To defend against intrusion, taking harm, or trespassers
Less force may be justified in defense of property than in
defense of persons
 Property is never valued more than the bodily integrity/life. Katko v.
Briney.
-to deter booby trapping, to protect children, first responders, people in
general
-can be superseded by necessity
-deadly force is only allowed when there is serious deadly force being
used against
 Castle doctrine: no duty to retreat in one’s own home
 Stand your ground laws: 36 states:
No duty to retreat before using deadly force if D is lawfully
present or when home is under attack (applies to both inside
and outside home)
Statutory modification that extends castle doctrine to situations
outside of house and home.
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Consent: different kinds of consent generally must be consent to the invasion if the
person had full knowledge of what invasion entailed.
-other issues to consider: assumption of risk, power imbalance between
employee/employer
-defense allowed for freedom of choice, and protection of personal liberty
Rule:
Consent may only be asserted as a complete defense if the person had full
knowledge of the invasion and provided either express and actual consent, or
implied apparent effective consent, or there was an emergency situation.
 Express/actually: written consent like in a contract
 Implied: two types
 Apparent- by your actions you show willingness
 Implied by action or custom
 If consent is apparent, the consent must be effective
 Words or actions that show voluntary consent
 Limitation: If you are incapacitated you cannot give effective
consent
 Criminal Conduct: If there is fraud/mistake/duress involved
consent is not effective.
 If apparent implied consent is not effective, you DO NOT have
a complete defense
 For apparent consent to be EFFECTIVE:
 The person must be age of majority->NOT if defendant knows of some kind of abnormality
temporary or permanent on part of consenting person
 The abnormality must substantially impair plaintiff’s capacity to
understand and weight to conduct
 The abnormality must reduce person’s capacity to consent
below the level of an average person.
 Defendant must have knowledge of the abnormality at the time
of the alleged act.
 Cannot go outside the scope of the consent given
 Emergency (such as when a doctor or EMT is present)- a legal factor to
protect healthcare providers
-Substituted consent- family member is allowed to consent for a person
if that person is incapacitated in certain situations.
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Necessity: act justified or privileged because of emergency or necessity that negates the
imposition of intentional tort liability.
-Can be used to negate part of a statute and eliminate liability (Rossi v. Del Duda)
An intentional tortious act may be justified if there is an emergency or necessity in
which there is a serious threat of imminent harm to defendant, property, or the
public.
 Emergency/necessity- serious threat of imminent harm to Defendant or
property
 Private- partial privilege: Defendant is still responsible for damages
 Public- complete privilege: public rather than private interest at stake. No
liability for damages.
 Can be raised when defendant converts plaintiff’s property in
reasonable belief that he can avoid or minimize serious or immediate
harm to the public
must show public not private interests were involved
Reasonable belief in need of action
Action was reasonable response to need
 Defendant reasonably believed action was necessary
 Action was reasonable response to need
 Self-defense is a type of necessity
 Do not use necessity if you’re arguing self defense
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First amendment defense: state cannot use its instrumentalities to violate one’s
constitutional rights, instrumentality being like these torts.
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Negligence
o Basic elements of negligence
 Duty: did defendant have a legal obligation to exercise some level of care to avoid the
risk of harming persons and property
 Breach of duty: conduct below the level of care owed to plaintiff
-in light of foreseeable risks created by conduct was defendant’s conduct unreasonable
under the circumstances?
 Causation: causal connection between defendant’s unreasonable conduct and plaintiff’s
harm
 Scope of liability (proximate cause): did defendant’s obligation include the general type
of harm the plaintiff suffered? Are there any intervening causes that are so unexpected
that they are superseding?
 Damages: what legally recognized losses has plaintiff suffered as a result of the
defendant’s breach of duty?
 Defenses: such as saying plaintiff’s negligence contributed- contributory
negligence (or comparative fault)
o Theories:
 An unintentional act that causes injury
 A breach of duty that leads to harm/damages
 Main theory: we all owe a duty to each to be careful whenever we act affirmatively, a
basic level of conduct that does not put another in unreasonable risk
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Duty
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Rules???? (plz man there’s too much to make into one rule statement):
All people owe a general duty of reasonable care. If a person is a landowner, has a special
relationship with a person, foresees the harm, or for other policy reasons, then they may
owe a limited duty of care to that person.
Policy factors that may determine that a person has duty of care include: allocation of
loss, fairness, deterrence, economic considerations, administrative concerns of courts,
legislative consideration, as well as precedent and logic, among other reasons.
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A legal decision
Steps for resolving duty rules:
1. Start with the presumption that the general duty principle of reasonable care
applies
2. Determine if any limited duty rules apply
3. If one or more limited duty rules apply, determine whether are any exceptions
to the rules that are relevant
4. If no exceptions apply and plaintiff’s claim would fail under the limited duty rule,
then consider whether a new or expanded exception, or an overruling of the
limited duty rule itself might be appropriate
5. If not existing limited duty rule applies, consider whether a new limited duty
rule might apply if the subject area poses a novel situation not previously dealt
with by the court
6. If the court determines that no limited duty rule or exception is applicable or
warranted, the general duty principle of reasonable care applies.
Pg. 350: duty analysis flow chart
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General Duty rule:
 We all owe a duty of care to each other:
-Some baseline exceptions:
 Landowners and occupiers
 No duty to act to prevent harm
 No duty to act for 3rd parties
-there are exceptions to these exceptions
 Examples of special relationships that courts use to limit liability between the
actor/victim
 Physician-patient
 Teacher-student
 Landowner-occupier
 Fiduciary duty/relationship
 Harm-physical, but not emotional or economic
General duty and breach: used to limit liability. Two sides of the same coin. Used to
more clearly define the limited duties a person in a certain person may have.
Limited Duties (based on exceptions)
 Limited Duty rules for owners/occupiers of land + premises liability
Duty of care varies with the status of the visitor
 Invitee: general duty of care; to use reasonable care to protect an
invitee from conditions of which the owner knows and by exercise of
reasonable care would discover.
-requires mutual benefit, one who enters another’s land with owner’s
knowledge and for the mutual benefit of both
 Licensee: if defendant KNEW of condition, then duty to warn or fix
dangerous condition, or duty not to harm through willful/wanton/gross
negligence in harming property
-enters and remains on land with owner’s consent and for his own
convenience or on business with someone other than the owner
 Trespasser: liability for willful/wanton/gross negligence
-enters another property without any lawful authority, permission, or
invitation
 Exceptions:
- Child trespassers: do not apply trespasser standard to children
- Traps: concealed dangerous conditions known to owner, the
owner has a duty to warn
- Active negligence: defendant affirmatively acted to create a risk
of harm on the property
- Landlords have a duty of reasonable care for foreseeable risks
where:
1. Concealed dangerous conditions are known to the
landlord
2. Dangerous conditions create risks to those outside the
premises
3. The premises are leased for public admission
4. The dangerous conditions are in the common areas over
which the landlord retains control
5. The landlord breaches an agreement to repair the
premises
-most often applicable in premises such as malls
 Limited Duty rules to act affirmatively to prevent harm
 No duty to act, no legal obligation to act prevent harm to third parties.
 Nonfeasance is not penalized.
 Exceptions (in general):
 D acted affirmatively to create risks of harm that resulted in P’s
injury (misfeasance)
 Special relationship: carrier-passenger, innkeeper-guest,
custodian-warden, teacher-student, parent-child, control,
relation of dependence or mutual dependence
-such as Farwell case: because co-venture friends= special
relationship and the knowing of the risk= voluntary undertaking
and there is now duty to act.
 Contractual undertaking
 Voluntary undertaking: D’s affirmative action creates a duty;
e.g. D voluntarily begins to assist
-Innocent prior conduct that created the risk: such as dropping
something in the street, you now have a duty to warn
-Reliance on a gratuitous promise: telling someone you are
going to help
-Intentional prevention of aid by others: blocking the assistance
of others
 Statutory duty to assist
-Strohmeyer case: there was no exception that held him
accountable for his lack of actions until a statute was passed
 There is no blanket duty to affirmatively act rule: because of
liberty concerns, to decrease risk-taking, issues of proof,
bystander issues
 Limited Duty rules to take preventive measures against risks by 3rd parties
-no duty to warn a third party/do something about the possible risk presented
by another unless you are someone like a therapist/employer
 Generally there is no duty to prevent harm/criminal conduct by a third
party, to assist or rescue, or to control the conduct of another
 Exceptions (same as act affirmatively)
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If there is any special relationship, control, or knowledge
regarding a 3rd party there is a duty to act, to warn about risks
posed by 3rd persons in any doctor-patient relationship. Tarasoff
(1976).
Special relationship: when a person has a special relationship to
both the victim and the harmer then there is a duty to act.
In regards to the duty in the outpatient setting: court must
balance:
1) The psychotherapist’s ability to control the outpatient
2) The public’s interest in safety from violent assault
3) The difficult inherent in attempting to forecast whether
the patient represents a substantial risk of physical
harm to others
4) The goal of placing the mental patient in the least
restrictive environment and safeguarding the patient’s
right to be free from unnecessary confinement
5) The social importance of maintaining the confidential
nature of therapy
-Estates of Morgan (1997)
-HOWEVER: duty to warn does not extend to
unforeseeable or non-identified victims. Dunkle (1990)
Duty arising out of control relationship
 No duty to protect against dangerous persons UNLESS
relationships that establish a right to authority and duty
to control dangerous persons (and corresponding duty
of care to 3rd parties)
 parents and minor children
 employers and employees using employer’s land or
chattels
 custodian of dangerous individuals
 landowners exerting control over licensees of land or
chattels (re: the negligent entrustment cases)
 negligent entrustment: giving instrumentality to the 3rd
party that can lead to harm, that comes from right to
control/possess chattel (such as giving a gun to
someone)
 once duty is imposed, general duty of care rule applies
 Duty in regards to 3rd parties may arise when a person
has knowledge; position of authority; position of
control/conduct; or there is a foreseeable risk
Duty can arise from the foreseeability of harm
 Liability can be limited by the court by creating a narrow
duty rule + in breach analysis: requiring plaintiff to show
that plaintiff is within category of foreseeable plaintiffs
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Court applies totality of circumstances duty rule to
landowners whether they have a duty to protect their
invitees from the criminal acts of third parties:
 Takes into account things such as specific harm,
prior similar harm: shows things such as
potentiality and foreseeability of crime
increases, duty grows
 Look into the indicators; similar evidence as sign
of breach, through this rule, court can only
determine that the defendant had a legal duty,
whether there has been a breach or otherwise
is for the jury to determine
 Factors uses to determine liability under totality
of circumstances test (for landowners and
criminal acts of 3rd parties)
 Nature, condition, location of land,
 Prior similar incidents
 Prior specific harm
 This considers several possible forms of
foreseeability (as a matter of law) so
that the issue of duty is not arbitrarily
or artificially limited
-Delta Tau Delta (1999).
Duty of alcohol providers to the injured by consumers:
 No duty to control actions of 3rd parties
(baseline)
 Some courts: duty to injured 3rd party (because
harm is foreseeable); social host liability
 Many states: statutes impose liability for
commercial but not social hosts (bars vs party
hosts)
A Fair DEAL: to determine/argue if there should be a duty in the situation, to consider
policy goals
 A: allocation of loss (compensation)
 Fair: fairness
 D: deterrence
 E: economic considerations
 A: administrative concerns of courts
 L: legislative considerations
 Other considerations:
- Precedents
- Analysis of cases
- Statutory support or negotiation
- Restatements of torts
- Decisions in other states
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o
Principles of law
Logic and equity
Breach of duty
 Rules (baseline/necessary):
A defendant has committed a breach of duty if they have failed to meet the standard of
care of the reasonable person under the circumstances, by committing unreasonable
conduct in the light of the foreseeable risks of the circumstances.
The standard of care may be determined by the BPL (burden-precautions-risk) test, by
industry custom, professional standards, or by statute.
When an accident would not have occurred but for a breach of duty and the defendant is
in control of the instrumentality that caused the harm then presence of the harm itself is
proof of breach of duty.
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Have there been:
 Foreseeable risks of harm
 Unreasonable conduct in light of foreseeable risks
Breach: failure to meet the standard/duty of care of the reasonable person under the
circumstances
1. Who is the reasonable person
 What does a reasonable person do in this situation
 Not about acting “honestly” but failing to act up to standard of
care of a reasonable person
 An “ideal”: focuses on average behavior and intelligence; a legal
fiction, always weighs other people’s safety before acting,
thinks of risk, the extent, likelihood, and possible alternatives to
risk of conduct
 Reasonable person: general standard which may be modified depending
on the situation. Consider the following factors:
 gender: reasonable person used to be reasonable man; breach
or lack thereof can be argued for by infusing RP with other
aspects of identity
 emergency: only applies in an event with instantaneous
response, sudden street obstruction or heart attack
 sudden emergency:
1) an unforeseen combination of circumstances
which calls for immediate action
2) a perplexing contingency or complication of
circumstances
3) a sudden or unexpected occasion for action,
exigency pressing necessity
 cannot be best judgment under this doctrine, even if
defendant is under stress, they are still under the
reasonable person standard
 physical disability
 physically disabled people held to the same standard of
care same as reasonable person with that disability
 not relaxed, just different, considered part of the
circumstances
 may be considered as exception to the usual standard
 mental difference
 court does not allow mental illness same leniency as
physical illness
 generally: same standard of care as a sane, entally able
person
 the courts will take into account mental illness as a part
of measure of liability but it cannot be a complete
defense
 policy reasons for this standard of care:
- wants to encourage proper care by caretakers
- easy for defendants to feign mental illness
- this is not a relaxed standard because
sometimes the standard of care is even higher
 child
 standard is generally a reasonably careful child under
the circumstances
 Rule: a reasonably careful child of the same age,
intelligence, maturity, training, and experience EXCEPT
if the child is engaging in inherently dangerous and/or
adult activity then the child is held to an adult standard
of a reasonable person under the circumstances
 Distinctions between ages (in general): below 7 years
old not capable of negligence, 7-14 sometimes, 14-18
always capable of negligence under this relaxed
standard.
2. Establishing reasonable care/standard of care
 Done via balancing of risk x livelihood of harm x actual harm
 Balancing untaken precautions and risks
-the default test for standard of care
 B < (P x L): to be used to determine the standard of care of a
reasonably prudent (adult) person under same or similar
circumstances
 B: burden of the added precautions on the defendant
 P: probability of loss/injury
 L: loss/injury (liability)
 Asks what is the foreseeability of likelihood and severity of harm
if precautions had been taken
 A method to balance risks; against utility and burden of taking
adequate precautions to prevent the harm
 Applies to both plaintiff and defendant (is used for comparative
negligence)
 Criticism: too economic to use cost/benefit analysis in human
issues, overly simplistic, not determinative because it still
depends on foreseeability guesswork.
 Custom and usage: may be used for BPL analysis
 Allowed into evidence to guide juries and determine
reasonableness of actions (to help establish a standard of care)
 Can be used by the plaintiff or the defendant
 Not determinative, another piece of information to determine
reasonable person standard in a situation
 It is under the jury’s duty to determine reasonable person under
the circumstances and custom is part of this determination.
Trimarco v. Klein (1982).
 However custom can be unreasonable and if so, then custom
cannot set the standard of care
 The more some kind of conduct is custom, the smaller burden it
is, especially if that kind of conduct is specifically for preventing
the kind of harm suffered by the plaintiff
3. Variations to the reasonable person standard:
-in certain situations there are different standards of reasonable care.
-standard is developed by considering duty +breach (when a person does not
meet the standard of care)
 Custom of the industry: affects BPL analysis
 Standard of care for children: failure to act like other children of same
age, experience, and intelligence unless engaged in adult activity (see
under what is a reasonable person)
 Standard of care in an emergency: same as normal RP; unless truly
sudden emergency (see under reasonable person)
 Professional Standard:
 Custom sets the standard of care: breach is a deviation from
this standard of care (generally requires expect witnesses to
corroborate)
 Professional must act with the degree of care, knowledge, and
skill ordinarily possessed and exercised in similar situations by
the average members of the profession practicing in the same
field in the relevant geographical community. Effectively,
reasonable person under the circumstances
 Resources available to professional are relevant: a
doctor/lawyer can conduct general practice in an area with less
resources but not in an area where specialties are common
 Medical malpractice negligence: 2 main issues
- Medical performance negligence
 Look to what is normal practice for doctors
 there is a national standard of care for Boardcertified doctors (all must pass same test)
 Some malpractice is so obvious that you don’t
need experts; “common knowledge” cases such
as forgetting a sponge in someone’s abdomen.
Smith v. Finch (2009)
 inherent risks of procedure =/= negligence
- Informed consent
 Tension between two standards: traditional
professional standard (what a doctor decides
what information they will share with patients)
and prudent patient standard
 PPS: what is the reasonable amount of
information that the patient should know
-What would the lay person do, what would a
reasonable person would have wanted to know
to protect freedom and liberty interest of the
patient, including material risks of relevant
medical care
-Material risk: a risk which a physician knows or
ought to know would be significant to a
reasonable person in the patient’s position in
deciding whether or not to have the particular
treatment or procedure (required to be
divulged in certain Jx)
 Exceptions:
-if there is an emergency
-or when the consent would do more harm than
good
-then these excuses may be used by the doctor
for not fully informing the patient
 Discuss both PPS and PS standards of care
 Legal malpractice:
- Similar to medical professionals; must maintain ethical
obligations and standards in the face of economic
motives
- Ex: attorneys have duty to do their due diligence in
research
 Violation of a statute or Statutes/rules/regulations-> negligence per se
 Specific judicial standards; such as statute that says he must go
and check tracks, can increase efficiency and clarity, which leads
to better determination
-critique: it takes power and role away from the jury,
rules/situations change and judicial standards/rules become
outdated
 Safety statutes and regulations as standards
-role of legislation: standard for determining constitutional
relevance
-is the purpose of the statute is to protect these people from
this kind of harm?
Test:
1) Harm suffered by the plaintiff is within class of harms
covered by the statute/legislation
2) Plaintiff is within class of plaintiffs covered by statute
 Negligence per se (generally): when statute applies in the
situation and the person has violated the statute= breach
Minority: uses this as evidence
Majority: uses this as prima facie proof; a rebuttable
presumption that can be defended with an excuse, such as
actions beyond defendant’s control
 Statutory Standard of Care Approaches (broken down more
specifically between minority/majority jurisdictions):
1) strict negligence per se- no excuse permitted (rare)
2) Negligence Per Se- statutory violation creates
presumption of breach, but defendant may try to
approve application of a specific acceptable excuse
(majority)
-potential excuse doctrines:
1) Incapacity
2) No knowledge of occasion for compliance
3) Inability after reasonable diligence to comply
4) Emergency
5) Compliance involves greater risks
6) Reasonableness under all the circumstances
(minority rule)
3) Negligence per se- statutory violation creates
presumption of breach, but defendant may try to show
reasonable care notwithstanding statutory violation
4) Evidence of negligence- standard of care remains
reasonable person (RP) standard but defendant’s
violation of a relevant statute goes to jury as part of
determining whether there has been a breach.
 Proof of negligence: how you show/demonstrate standard of care.
 The burden of proof is on the plaintiff
 Must be proved with a preponderance of the evidence (51%
likely)
 Can be done with direct evidence (possible recollection and
witness testimony)
 OR circumstantial evidence:
-evidence of the situation
-leaves it up to the jury to decide the merits of the case
Circumstantial evidence takes us to res ipsa loquitur: allows
proof of the accident itself to prove negligence (without
needing to show unreasonableness via BPL/other standards
 Sometimes the act itself=breach; res ipsa loquitor
-then goes to jury to determine to make an inference of
negligence, with Jx differences
 Res ipsa loquitur transfers burden of proof to defendant
because negligence is already proven by the accident
occurring
 Allows jury to use common sense to make inferences
 When an accident would not have happened without
negligence and the instrumentality is under the
complete control of one party, the jury may infer
negligence from the accident itself.
1. To infer that SOMEONE was negligent: the
accident is a kind that ordinarily does not occur in
the absence of someone’s negligence
-Proof:
a) facts of accident
b) common knowledge
c) common sense
d) experts
2. To infer that DEFENDANT was negligent: the
apparent cause of the accident is such that the
defendant would be responsible for any
negligence connected with it. Jury must be able to
find that more likely than not the defendant’s
negligent conduct or omission caused the
accident.
-Proof:
a) evidence of the defendant’s control if possible
b) evidence that negligence likely occurred when
instrumentality was under the control of the
defendant
c) disprove possible negligence of third parties
d) remove the plaintiff as possible contributor (or
at least less than 50% responsible in comparative
negligence)
 Other excuses: incapacity, emergency, inability to comply, children
o
Causation

Rules:
Causation between defendant’s negligence and plaintiff’s harm is established if injury
would not have occurred but for the defendant’s actions, or defendant’s actions were
otherwise a substantial factor in causing plaintiff’s harm.
If there are multiple defendants and the harm caused by these defendants is indivisible,
then the defendants are jointly and severally liable for the entirety of plaintiff’s injury


Factual causation ie logical causation
 Causation rule: plaintiff must establish nexus between defendant’s negligence
and plaintiff’s harm
 Plaintiff must demonstrate connection by preponderance of the evidence
 Cumulating proof to identify cause: expert testimony, direct evidence,
circumstantial evidence
 You do not need to rule out all other causes
 D can provide counterfactuals to demonstrate that defendant’s negligence was
not a cause of plaintiff’s harm
Proving the counterfactual:
 The evidence shifts to defendant if plaintiff’s injury is precisely what occurs from
defendant’s negligent conduct or if defendant’s act significantly enhances the
chance of injury.
-see Zuchowicz, and Williams v. Utica College:
-if the defendant can prove that defendant did not do the exact thing that
caused the injury then they can break causation

But-for analysis
 Cause-in-fact; injury would not have occurred without (but for) the defendant’s
act
 Traditional test for causation:
 Sowles: whether but for D’s negligence, injury would not have occurred
is jury’s determination
 Grimstad: (however) jury cannot determine negligence by
preponderance of the evidence if several causes of the injury are just as
likely
 Role of Judge/Jury:
 Causation rule: judge gives jury instruction
 Sufficiency of the evidence to get causation to jury; judge must decide
whether plaintiff has proven each of the elements by sufficient evidence
to justify or warrant a finding in his favor based on that evidence before
causation issue goes to jury
 If not possible because of multiple causes you go to substantial factor test:

Substantial factor test
 Question when there are multiple factors: was defendant’s negligent conduct a
substantial factor in contributing to the P’s injuries
 In some states: exception/modification of but-for test applies to
multiple cause cases
 In some states (including CA), new test of causation, recognizing that
most causation issues involve adequacy of proof issue (causation must
be established by preponderance of the evidence)
 Arguably but-for and SF tests are the same thing
 Can be an easier bar for the plaintiff to overcome in regards to proof
 Is not about comparing defendants’ harm/culpability; allows plaintiffs to choose
their defendants. Smith v. JC Penney (1974).
 Several causes and defendant’s act is cause in act if their act was a substantial
factor in causing the injury
 Multiple causation: values making plaintiff whole vs. fairness to defendant(s)
 Apportioning liability
- Independent tortfeasers rule: independent tortfeasers are not
jointly and severally liable when their acts cause distinct and
separate injuries OR damages can be reasonably apportioned
- Indivisible injury rule: where two or more independent parties
cause a single indivisible harm, each D is liable for the entire
harm (burden shifts to D to show reasonable apportionment is
possible), aka J&S liability
 Joint and several liability
- Several liability: you are responsible as a defendant for the
specific harm that you individually caused
- Employer/employee have vicarious liability as long as there is a
right to control the employee
- When parties act in concert to cause harm to plaintiff, together
they will be liable and the plaintiff does not have to prove which
specific defendant did what specific harm
 Generally: if conditions exist to hold the defendants
jointly and severally liable then they be held liable
together
 Such as: when you can’t distinguish between acts and
injuries, and the harm is indivisible. Fugere v. Pierce
(1971).
 The burden of proof shifts to the defendant to prove
that they caused their specific harm.
- Four different ways joint and several liability can be applied:
1) “true cases”: defendants deliberately engage in joint
tort liability, liable for complicity in joint activity
2) Vicarious liability: defendant’s liability rests on
relationship with wrongdoer. Ex: employee/employer,
principal/agent
-rationale: agent acting in economically beneficial
activity for principal
3) Independent actions concurring to cause harm: efficient
and fair way to deal with difficult causation problems
4) J & S liability v. comparative negligence: minuses
plaintiff’s wrongdoing to award
 Alternative liability: what if P’s injury is not a single indivisible harm but
there’s no way of knowing which defendant’s conduct caused P’s injury
- Burden shifts to D when D’s conduct makes it impossible to
show causation one way or another
- Extension of the indivisible harm rule
- To invoke this rule: P must meet certain requirements to invoke
burden shifting rule:
1) P cannot know where the harm came
2) Defendants are in best position to offer exculpatory
evidence or evidence of non-negligent conduct
3) All possible defendants are parties and one of them at
least caused the harm. See Summers v. Tice.
 Market Share liability
- Extension of alternative liability rule
- What happens if plaintiff does not know which defendant
caused the injury and plaintiff can’t bring all parties into the
lawsuit?
- You can apply liability to an entire industry:
 Procedural and substantive rule: if manufacture can
show that they did not produce the involved product
then they are not liable
- Makes the parties in the room responsible and liable because
you can’t find all the parties
- Does not require all parties to be present (just substantive
share)
- Shifts the burden to defendant, but if defendant can’t prove it
did not harm plaintiff then Defendants are held to liability equal
to market share of national market (at time of injury)
- No inflation to 100% if all participants are not before the court
- This is several liability (not joint liability)
o
Scope of liability
 Rules:
A defendant is liable if the plaintiff’s harm and the plaintiff were foreseeable
consequences from the defendant’s conduct and there are no superseding intervening
forces that break the chain of causation, unless an exception to the foresight rule is
present.
If one of the three exception situations— eggshell plaintiff, medical complications, or
rescuer’s rule— is present, then the defendant is liable to the plaintiff, regardless of
intervening forces.

Otherwise known as proximate cause and/or foreseeability
 How far does the chain of causation go?



 How much foreseeability is needed for scope of liability?
 Are we going to hold the defendant accountable for an unintentional act that
has secondary consequences?
 In most cases, scope of liability is not a major element
All actions have forms of direct risks- but there are ancillary/secondary risks
 SoL is about these secondary risks
 About isolating the foreseeability of plaintiff and harm
 To think about risk of particular negligent conduct, to test whether risk is within
reasonable person’s viewpoint.
Framework for analyzing scope of liability:
 Unforeseeable plaintiffs and unforeseeable consequences
 Intervening forces and shifting responsibility
 Existing exceptions to the foresight test: medical malpractice complications,
eggshell plaintiff, rescuer rule
Tests:
 Direct consequences: you are responsible for direct consequences of your
conduct
 Plaintiff just needs to show direct link between conduct and harm
 Does not account for intervening forces or multiple causation
 Foresight rule: was the risk of harm foreseeable
 consider: who is a foreseeable plaintiff, and what is a foreseeable
consequence
 Modern rule: could defendant foresee harm and plaintiff
- Could defendant foresee risk that injured plaintiff
- If D should have anticipated risk and negligently failed to avert
it, defendant is liable to plaintiff
- If reasonable person could not have foreseen some bizarre
result that comes from risk defendant could not have foreseen
defendant is not negligent
- Consider what reasonable person would anticipate as risk from
defendant’s act and hold defendant to that risk
- As long as negligence could cause plaintiff some kind reasonably
foreseeable risk of harm then the particular way the harm
occurred does not matter and is still considered a foreseeable
consequence. Jiusti v. Hyatt Corp.
-includes criminal conduct of third party. McClenahan (1993).
-third party and defendant do not need to work in concert.
- Palsgraf: two viewpoints on this issue:
 Cardozo (current): foresight rule
 Andrews (not generally used): defendant owes a duty of
care to anyone who suffers injuries as a proximate
result of his breach of duty to someone.
- Limits:
 Not all foreseeable risks creates liability
 See limited liability rules in the duty analysis; even
though harm is foreseeable, fore policy reasons courts
do not want to impose liability in certain situations
 Exceptions to this rule are based on direct consequences rule


 Intervening factors- if the force is foreseeable do you shift liability/responsibility
away from the defendant
-asks: when is the intervener’s act so egregious that we should consider it alone
for plaintiff’s injury?
 If there is no intervening force, defendant is fully liable despite manner
of the harm. Unless the consequences are not from normal risks of the
defendant’s actions
 Shifting responsibility factors:
- Culpability of the intervenor: intentional, criminal, reckless,
negligent, innocent
- Competence and reliability of the person upon whom reliance is
placed
- Intervener’s understanding of the facts and situation
- Seriousness of the dangers
- Number of people likely to be at risk of danger
- Length of time elapsed between conduct of parties
- Likelihood that proper care will/will not be used
- Ease of each of these parties can take precautions
 If the intervening force is foreseeable the defendant is still liable if their
conduct is a substantial factor in causing the plaintiff’s harm
-such as failing to warn about the dangers of a particular product.
McLaughlin.
 If the intervening force is not foreseeable(superseding) it breaks
causation and breaks the liability chain between defendant and plaintiff
- Rule: a superseding act is an act that breaks the causation chain.
An intervening act is superseding ONLY IF it could not have been
foreseen and the conduct was also a substantial factor (ie cause
in fact) in bringing about the harm…..
rd
 3 party rule: if the likelihood that a third person may act in a particular
manner is the hazard (or one of the hazards) that makes the conduct
negligent, then its foreseeable (even if a slight risk), then D cannot shift
responsibility.
Bigbe (1988).
Defendant is generally liable for all harmful consequences that come from normal risks
that are part of their actions
Exceptions: foreseeability rules
 Medical complications: negligent acts of third persons, ambulances,
-these things the defendant is still liable for
 Rule: defendant is liable for medical malpractice from treating plaintiff’s
injury that resulted from defendant’s negligent
 Defendant’s initial negligence is considered the proximate cause of the
damages that flow from subsequent negligent medical treatment; sets
up medical malpractice
 Medical malpractice does not supersede defendant’s initial negligence
 Thin-skulled/eggshell plaintiff
 Rule: if the harm is foreseeable, the negligent defendant is liable for the
full extent of plaintiff’s injury (even if physical condition was unknown
to defendant)
 Rescuers’ rule
 Rule (1): defendant is liable for injuries sustained by rescuer attempting
to help another person placed in danger by defendant’s negligent
conduct
 Rule (2): defendant is liable for harm to rescuer trying to help negligent
defendant
o
Damages
 Rule:
If a defendant is found guilty of negligence to a plaintiff, then a plaintiff is entitled to
damages, economic, non-economic, and if defendant was also reckless, punitive as well.
Economic damages include medical costs, lost wages, and all other pocket costs, while
non-economic damages include pain and suffering as well as loss of enjoyment of life
costs. Punitive damages are calculated according to the severity of the defendant’s
conduct and responsibility.



Nominal:
 Purpose: vindication of plaintiff’s rights (ex. Trespass), compensation,
indemnity, restitution for plaintiff’s harm done by defendant
 Nature of award- symbolic
Generally based on:
 Personal injury
-medical costs, loss of wages, out of pocket costs
 Pain and suffering
-emotional distress, loss of quality of life
-difficult to quantify
 Punitive damages
-there are constitutional limits to these
Economic damages: past and future medical expenses, past and future wages, other out
of pocket expenses
 Medical expenses
 Question: how to anticipate costs of future medical care
-proven with expert testimony
 Elements of an award:
1) The necessary components of future medical care
- Continual evaluations
- Medical equipment
-
Full-time attendant (no duty to mitigate damages, eg
require family to care for plaintiff)
2) Present value of future expenses; 2 ways to calculate
- Plaintiff: market interest rate; considers how inflation
rates affect each other and applies these to medical
costs
- Defendant: real interest rate, uses same calculation as
for wages
 Collateral source rule: prohibits admission of evidence that P has
received compensation or payment for medical or other expenses
 Damages are not reduced if plaintiff receives recompense from
other sources
 Such as insurance for past medical care, or attendant care
provided by family
 Policy: does not reward defendant for insurance luck, legislation
sometimes adjusts this rule
 Loss of wages
 Question: how to value one’s potential
 Evidence: through past and future earnings and diminished earning
capacity
 General expenses

Non economic damages: pain and suffering, loss of enjoyment of life
 Pain and suffering
 Question: how to value mental distress and loss of enjoyment
-mental distress: the actual physical and mental suffering caused by
defendant’s act
-loss of enjoyment of life: for being disabled or limitations that come
from injury
 Evidence: measure loss on a per diem basis, most imprecise of damage
calculations
 Loss of enjoyment of life
 Sometimes separated from mental discomfort/distress (depends on Jx)
 Value attached to loss of ability to live life as if defendant’s negligence
never occurred

Punitive damages: deterrence if the defendants’ actions are reckless
 Determining whether punitive damages should be awarded:
 Likelihood that defendant’s conduct would cause harm
 Degree of defendant’s awareness of harm
 Probability of D’s conduct
 Duration of misconduct and any attempt to conceal
 Attitude and conduct of defendant upon discovery of misconduct
 Financial assets and income of defendant
 Total deterrent effect of punishment imposed on defendant including
punitive to other plaintiff’s and severity of criminal penalties for similar
conduct to which defendant was/may be subjected too
 Proof required: clear and convincing evidence
 Appellate Review of PDs requires courts to determine:
 Degree of responsibility of the defendant’s misconduct
 Disparity between actual or potential harm suffered by plaintiff and the
PD awards
Difference between PD awarded by the jury and civil penalties
authorized/imposed in comparable cases
 Due Process Limits:
 In order to avoid arbitrarily depriving defendant of property without
due process of law, we measure punitive damages by degree of
responsibility. State Farm Mutual v. Campbell
 Due process factors in determining degree of reprehensibility:
- Is this an economic case
- Is this reckless disregard of health and safety
- Is there financial vulnerability
- Was there repeated conduct
- Was the harm the result of intentional malice; trickery, deceit
- 4x is rough max
 Punitive damages must bear a reasonable relationship to the P’s harm
and cannot be for hypothetical claims of a third party against the
defendant.
-consider reprehensibility, responsibility,
o
Defenses
 Rules:
Dependent on the jurisdiction, a plaintiff’s recovery is reduced or even completely barred,
if they have also committed negligence that has contributed to their harm.
Dependent on the jurisdiction, a plaintiff’s recovery may be reduced or barred if they have
assumed the risk of the activity that caused the harm, whether expressly or implicitly.
A plaintiff assumes all inherent risks of an activity, but to have implicitly assumed the
secondary risks, they must have known about the risks, appreciated the risks, and have
voluntarily assumed the risks.

contributory negligence
 historical; bars recovery for the plaintiff completely, minority Jx rule
 unreasonable conduct of plaintiff that contributes to P’s harm
 D proves contributory negligence like a regular negligence case; duty is a given
because everyone has a duty of self-care
 Doctrines that ameliorate contributory negligence’s harshness:
1) Only allowed if D was negligent; NOT reckless or intentional
2) Last clear chance rule: P could still recover if defendant was more
culpable because defendant had the last opportunity to prevent harm
3) Plaintiff can still recover is defendant’s negligence is negligence per se
and plaintiff is in the class protected y statute


comparative negligence
 majority Jx
 reduces plaintiff’s reward from their percentage of negligence
 you have to go through the whole negligence analysis with the plaintiff (we all
have a general duty of care to ourselves)
 judicially abolished over contributory negligence
 2 types of comparative fault systems:
 pure systems: minority Jx, allows a plaintiff proportionate recovery
regardless of how negligent the plaintiff was, even where the plaintiff’s
percentage of fault exceeds that of the defendant
 modified systems: allows proportionate recovery for the plaintiff but
cuts off all liability if the plaintiff’s negligence exceeds a certain
percentage (generally 49% or 50%).
assumption of risk
 is about respecting the choices of the plaintiff
 express
 clear and ambiguous
 void against public policy
 Six Tunkl factors (pg. 604) that shows clause as invalid because
of public policy:
1) Concerns a business of type thought suitable for public
regulation
2) The party seeking exculpation is engaged in performing
a service of great importance to the public
3) The party holds himself willing to perform this service
for any member of the public who seeks it
4) The party involved possesses bargaining advantage over
any member of the public who seeks his services
5) In exercising this advantage, the party presents public
with contracts of adhesion without options for
negligence protections
6) As a result of the transaction, the person/property of
the purchaser is placed under control of the seller,
subject to the seller’s and its agent’s carelessness.
 be within the scope of the risk of the activity
-also cannot consent to long-term risk
 implied
 2 levels of implied risk
 Inherent/primary assumption of the risk
-a risk inherent in the activity, then the assumption of risk is
primary
-it is a risk that is assumed by all participants in that activity
(such as risk of injury in sports)







-therefore there is no breach of duty/duty when you assume
that risk
 Negligence of the defendant/secondary assumption of the risk
-plaintiff understands that is risks above and beyond the
inherent risks of the activity and knowingly assumes that risk
-three part test as seen in Murray (know/appreciate/voluntarily
expose)
Under secondary assumption of the risk:
 Does the plaintiff know of the particular risk of injury
 Did they appreciate the risk: understanding of a reasonable
person
 Did they voluntarily expose themselves to the risk: does not
count if the plaintiff doesn’t have an alternative, such as duress,
fraud, or emergency
Bowen v. Cochran gas grill case
 Cause of action: product liability negligence
 We do not assume a plaintiff assumes the risk they don’t really
understand.
Comparative vs contributory negligence
 In comparative negligence regimes: assumption of the risk
merges into the comparative negligence analysis
-considered by the courts as another form of negligence on the
part of the plaintiff as compared to the negligence of the
defendant
-that it was unreasonable for the plaintiff to assume that risk
 For minority of jurisdictions: assumption of risk= complete bar
from recovery
Subjective standard: you are trying to get into the brain of the plaintiff
An affirmative defense
Limited Duty situation: when a party enters a relationship with another,
knowing and expecting that the other person will not offer protection
against certain risks arising out of the relationship. There
 Cheong v. Antablin: you cannot hold the other sports
participants’ actions negligent unless it was intentionally or
recklessly caused harm.
Exam tips:
o Remember to argue both sides
o Organize by plaintiffs, defendants, within that organization organize by claim
o Some facts will be used multiple times so sections will sound repetitive
o IRAC each claim, then irac each element
o Intentional torts are worth fewer points than negligence, hit the relevant points in intentional
torts and move on.
o Even if some elements of the claim are not disputed, cover them
o Clump plaintiffs with the same claim together
o For jurisdictional issues, just know both rules