KNOW FISHER AND WLW
Leichtman v wlw- The court ruled the touching of smoke from a cig to the plaintiff’s face counted as a battery
POLICY QUESTION- looking forward deterrence
I.
Definition of tort
 Latin word torquere means to twist
 To commit a tort is to behave in a twisted or wrongful manner that causes injury to another, thereby
entitling the injured party to seek relief in court from the wrongdoer
 Focused on people who allege an injury (usually physical) and are seeking money to remedy the wrong;
specifically wrongs that the law doesn’t recognize (deeming them rather moral or social)
 Need an injury to have a tort; crim law does not require an injury (not enough for P to show wrongful
conduct needs to be some type of injury)
 Focuses on regular people
II.
3 general types of tort
 Negligence- harm that occurs by accident or inadvertence, not intentionally. To will the P must show
failure of reasonable care when D had an obligation to do so (injury not intended/accidental and D’s
fault)
 P needs to show there was a breach of duty where D failed to act w reasonable care
 Strict liability- I ate the meat and got sick, you’re liable other facts don’t matter, harm still occurs by
accident but P not required to show a failure of reasonably care, the act was done you’re liable (injury
not intended/accidental)
 You broke it your liable, P doesn’t need to do anything
 Intentional torts- harm is intentional, assault, battery, false imprisonment, infliction of emotional
distress (D’s fault)
III.
Negligence
 Prima facie case (P’s job to put together the prima facie case)
 1) injury- harm done physical damage body or property
 2) duty of care- obligation to act according to the standard duty of care
 3) breach- did the D breach the standard
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IV.
4) causation- connection between duty and breach; asks if P would have been injured if the D
hadn’t been neg
 Actual- but for
 Proximate- foreseeable
Elements of negligence
 Injury
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Never disputed
Economic v physical
 Economic- less duty, impacts on physical property owned by P, harm to environment that the P
needs to remain clear for business operations, negligently performed professional serviceaccounting and the law
 Accounting firms- hired to prepare financial statements to attract investors (near privity)
 Centrist- third parties that it intended to benefit, carelessly provides false info for the
guidance of others in their business transactions
 Liability limited to the group of people that benefit- the accountant doesn’t need to
know who the people are to owe them a duty but must have an idea of how many of
them there are and the reason they will rely on this info
 Physical- more finite or bounded, not limitless, easier for a person in the role of D to think abt
and understand, easier for court to manage
 Duty
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Duty of care is owed- is there an expectation of reasonable care
1) They are engaged in activity (behavior must be active)
2) which a reasonable person would think (belief abt the risk must be reasonable)
3) poses a risk of physical injury to persons or damage to property if done without care (little
interest in other types of injury)
 Did the D owe P reasonable duty care?
 People owe a duty of care to themselves too (Antoinette Walter and pharmacy when she took
the drug)
 owed duty of care- pharmacist to customers
 P has the burden
 Ordinary care- is what a pharmacist owes their client still demanding (reasonable care-low
threshold)
 Limited duty- no care obligation or not much of one, of reasonable care
 Examples of no duty of care
 Not duty to rescue
 A person has no obligation to come to the aid of another who is in peril
(serious/immediate danger)
 When a person has not acted in such a way that would bring about the perilous
situation of person B the law does not impose a duty to rescue on that person
 If they didn’t cause it they don’t have a duty
 Some people view it as charity you have no obligation to give money to someone
random—>so you have no obligation to rescue someone
 EXCEPTION- to the no duty to rescue rule- if a person acts in such a way that put
person B at risk of physical harm, that person has a duty to make reasonable
attempts to prevent person B from experiencing further harm
 Person A need not have acted neg when her action placed person B in imminent
peril (if you caused it you have to help)
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voluntary undertaking- if you choose to voluntary save someone you are subject to
giving them reasonable care; if you jumped in the boat like Hill to set out and save
someone this voluntary undertaking would trigger a duty to exercise reasonable care
 If there is a special relationship duty of care is imposed- where one person entrusts
himself to the control and protection of another with a consequent loss of control to
protect himself
 Business-customer, jailer-inmate, school-student, nursing home-resident
 Is of itself a voluntary undertaking- these people volunteered to take care of
others
 Lawyers and accountants have certain duties to their client (third party)
 Legal malpractice- typically in agreement under contract, carelessness of
attorney
 Duty owed by mental health professionals- who know or should know that their
client will cause harm even though other people might be similarly aware that
someone has the potential to cause harm)
 Failure to warn
 No duty to some land visitors
 Premises liability (falls under duty)
 A P suffering an injury as a result of a dangerous condition on the D’s
property
 Need to determine duty of care (varies based on invitee, licensee, or trespasser)
 Invitee- a guest on someone else’s property for the mutual advantage of both
parties and is owed the highest level of care
 Ex- a customer at a restaurant ordering dinner
 Licensee- although permitted to be on the property is there for her own
benefit or pleasure such as a guest at a party
 Trespasser- someone who enters someone else’s property w out any kind of
implicit or explicit permission (lowest degree)
 Hazardous conditions v hazardous activities
 If an injury arises from a hazardous activity that P engages in then the limited
duty rules do not apply
 Ex- land possessor fails to warn licensee of broken glass on the bathroom
floor and the licensee is injured by stepping on the glass, the special duty
rules apply (needs to be passive choice of injury)
 If licensee gets injured while playing football on the premises his
status as a licensee will not be noted in the neg action
 The level of care owed to licensees and trespassers varies by jurisdiction
LABEL
How the land possessor
feels abt this position
Duty that land possessor
owes this person
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Trespasser
Not wanted
Only to refrain from willful
and wanton injury.
Basically no , least care,
obligation of care at all
Licensee
Tolerated. Possessor is
okay with visit (social
invitation)
Must warn of hidden
danger about which the
possessor knows, entitled
to not much more than a
trespasser
Invitee
Actively desired as a
member of the public or
someone who can
advance the possessor’s
business of professional
interest, restaurant
customer
Reasonable care
(hazardous conditions are
treated the same as
hazardous conditions to
the invitee ), the only
visitor entitled to
reasonable care
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 If merged- all duty
 If preserved- distinct
 Restatement third of torts- invitees, licensees, and trespassers all owed a duty of
care unless the trespasser is flagrant, if the trespasser is flagrant (the normal
standard of refraining from willful misconduct applies)
 No duty to guard against “consequential economic loss”
 Need to professional
 No duty as “policy” by the court
 Generally courts wont allow P to recover for purely economic industry
 Court worries all hell break lose
 Limited duty with respect to emotional well being
Tumble down house (can be a location of 2 contrary duty rule for a lessee)
 Depending on the nature of the lease, there may be a different duty of care owed to the
lessee
 Lessee renting a property as a place to live
 No duty owed to an injured guest
 Lessee renting a property as an event space (ex: wedding, rave)
 Duty of care owed to an injured guest
It is judges who get to say who is owed a duty of care
Imminent peril- If the actor does an act, and subsequently realizes or should realize that it has
created an unreasonable risk of causing physical harm to another, he is under a duty to exercise
reasonable care to prevent the risk from taking effect (this applies even if at the time of the act
the actor has no reason to believe that it will involve such a risk) as long as the action created an
imminent peril (danger) that put the P at risk D owes P reasonable care (D PUT THE P IN
DANGER)
 If you do smtg and then after you do if you realize you caused them harm you have a duty to
help them
 The obligation to act after you realize you have hurt someone
 Even when the D’s action wasn’t negligent, if its action created an “impenitent peril” (a
danger) that put the plaintiff at risk, D owes the P reasonable care
 You can’t put another person in imminent peril unless you do smtg
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 Can be used to strike out the no duty to rescue rule One cant place another in danger and then refuse to assist
Identify the risk then determine the duty of care, then who it ought to be owed to
When privity doesn’t work it must be rejected
Liability can be owed to a third party spouse (like in Mussivand if I give you aids)
The power to decide duty is to the judges
Didn’t know you had but should have known and you gave aids to someone
 No liability if you have no clue and had no reason to have a clue (if you had a reason to have
a clue that you had aids your negligently liable)
 “no clue but reason to have a clue”
 Actual knowledge- Dr. David knew he had an STI (subjective)
 When the standard courts ask what the D as individual human knew before the
injury occurred not what the D should have known
 Constructive knowledge- the actor may or may not have known but should have known
it (foreseeable)
 if a person who has aids is engaging in sexual intercourse w someone who that person
knows or should know has a sexual partner they are liable to the partner’s spouse
 health of a person is an economic asset (perseveration of health is of importance to the
state (to the individual nothing is more valuable than health)
cheapest cost avoider
 the option that is best to prevent the injury but also the cheapest
 ex- Bell Realty:
 1) Straus could never leave the apt (burdensome)
 2) Belle could maintain the stairs and buy a generator (cheapest)
 3) Con Ed- keep the grid in reliable repair (expensive)
 The cheapest cost avoider is Belle Realty maintain the stairs
 Ex- manufactures are typically cheaper cost avoiders bc they can detect a defect more
cheaply than individual buyers
Negligent standard of an independent contractor
 Breach
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Role
 1) jury must follow the instructions on the law (when they don’t an appellate court can undo
what the jury concluded)
 2) the trial court has the power to enter summary j in factor of D when it concludes that no
reasonable jury could find breach
 3) some actorts have their subjective traits taken into account others are helf to an objective
reasonable person standard
 4) the jury or factfinder is to consider custom
 For most actors, using an “evidentiary” approach
 For doctors/medical malpractice/professional- “per se” approach
 Informed consent- prudent patient doctrine understandable as a rejection of custom
 5) Hand formula- breach is expressed as the failure to take a cost justified precaution
 6) res ipsa loquitur
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Duty of care is breached
What the D did or failed to do that was unreasonable
Jury decides – question of fact but judge plays a vital role in instructing the jury on what the law is
before the jury deliberates
 For judge to take the case away she must conclude that based on undisputed facts a reasonable
jury could not find that the D was negligent (via summary judgement)
 Isn’t what a group of lay people think the judge instructs them
 If the trial judge mis-instructed the jury about the law on an element that’s a reversible error
and the appellate court that finds for the reversible error with conclude that it must be
remanded for a new trial
Conduct or omission that a jury could conclude was no reasonable
 professional v ordinary standards of care for jury instructions
 professional care- expert testimony
 ordinary care- jury can draw on personal knowledge, experiences, and other evidence
presented at trial
 emergency situations- if the injury the D caused occurred in an emergency situation, the D will
likely be able to present evidence of the emergency and might be able to convince the judge to
add the instruction for emergency when deciding negligence (ppl in emergencies may act
differently than they would otherwise)
objective standard of care- when faced with a claim of breach an actor typically a D will be held to a
standard of care which ignores the actor’s personal charchtertistics
 overall view- how a reasonable man would acct; how a man of ordinary prudence —
>reasonable person
 ignoring personal charchteristics
 unitary imposed on all
 if recognized favors D
 court assesses D’s conduct sperate from specifc abt their identity
 Actor’s accused of neg will receive no break on the standard of care based on their individual
lack of intelligence, awareness, bad judgement (using actors bc P’s can also be accused of neg)
 Neg law notice- child, physical disability releveant to the circumstance, actor being a member of
a profession or occupational group
 EVERYTHING ELSE IGNORED
subjective standard- takes personal charchteristics in account, takes into acct a charachertis
personal to the actor
 American tort law rejects the subjective possibility that gender race, sexual orientation, or
national orgin might suppor a standard of conduct that’s different from the reasonable person,
rather it treats us all the same except children
 anything related to the mind or temperament is ignored in neg law
 less experienced could be considered, less intelligent or mental illness
child standard of care- subjective
 negligent parental supervision- Parents liable for the child
 P’s must establish parents should had or should’ve had the knowledge of specific past
conduct sufficient to put them on notice that the child was likely to injure the P and that
they were able to control the child at that moment
 Restatement- No duty unless parents had knowledge of dangerousness AND ability to
control the dangerous child
 If a child drives a motor vehicle are liable
 Tender years- if you are under 7 never liable
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 MA rule- comparing child to similar age by intelligence, and experience
Physical disabilities
 How a reasonable person w that given disability should act
 Ex- a blind man not required to see at his peril
 Restatement 3d of torts §11
 The conduct of an actor w a physical disability is negligent only if the conduct does not
conform to that of reasonably careful person w the same disabilitu
 An actors mental or emotional disability is not considered in determing neg conduct
unless they are a child
2 approaches to custom (standard)
 Flexible- extends the evidence abt custom that the P wants to introduce
 TJ Hooper- evidence that one party followed custom, here the common industry procedures
is of interest but does not itself establish that the party must prevail
 Rigid- D acts w reasonable care if they follow the standard set byt the profession and P cant
reach a jury without furnishing this evidence depending on the case sometimes the stand
 Both sides can establish breach via custom- sometimes D may want it sometimes P may
 Ex- TJ Hooper the D attemped to escape liability by argung that it followed the custom of the
tugboar industry thus acting w reasonable care
 Dispositive in medical malpractice- when P claims medical malpractice the P has no choice but
to prove that the Dr was inconsistent w the professional standard within the medical industry
 If the P cannot do so the P will fail; the burden is on the P to call an expert witness-dr to
testify that the Dr failed to follow industry standards
 Expert testimony in medical mal practice
 Expert testimony in a professional malpractice case is admissible only if the expert
has actual professional knowledge and experience in the area abt which he or she is
testifying as a result of having been regularly engaged in the active practice of such
area of speciality in his or her profession for at least the last 3-5 yrs
 Lay people unaware of knowledge of an expert so need to use expert
 Informed consent
 Applies to only risks out the of control to the D-dr
 The dr’s duty to impart info is based on reasonable effore not whether the P
actually grasps the info
 Ex- Zaw- P’s failure to understand Dr would be performing a vasectomy rather
than a circumcision is not enough for zaw to be successful on his informed
consent claim
 Locality- same community
 Same or similar locality- comparing your community with another town that’s similar
 National standard- anywhere
path of righteousness
 what the D could’ve done differently to reduce the risk (inspect the car etc.)
 Macpherson could have helped him out but chose the path of breach could have acted
differently morally correct (ex- defects could have been discovered by reasonable inspection but
there was no inspection)
 The path that must be followed to avoid negligence liability
Facts abt the physical world- sources of danger related to the nature of objects
 Gravity, leverage- weight on one side of the seesaw other side goes up
 Some courts hold this standard – McAdoo- all drivers must held to know that when a tire is
worn through to the fabric its use is dangerous and should be removed
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Hypo- city cousin visits country cousin. She goes for a walk on the country cousins property and
sees a peaceful pasture enclosed by a fence, a calm bull is inside, city cousin enters, she gets
gored and had no idea of any danger?
 City cousin said should’ve be warned
 Country cousin says the danger of a bull is obvious (most courts agree)
Informed consent
 Medical informed consent- they did the procedure correctly but communicated the surgery to
them neg
 Informed consent claims regarding medical malpractice don’t require expert testimony that the
Dr’s conduct did not meet standard of care (ordinary medical malpractice claims do)
 Informed consent
 Applies to only risks out the of control to the D-dr
 The dr’s duty to impart info is based on reasonable effort not whether the P actually
grasps the info
 Ex- Zaw- P’s failure to understand Dr would be performing a vasectomy rather
than a circumcision is not enough for zaw to be successful on his informed
consent claim
 P must show communication about the risks and benefits was not consistent w what
a reasonable physician would have provided
Economic analysis
 Hand formula- cost benefits (USUALLY IN MPC UNLESS SPECFICALLY REQUESTED IN ISSUE
SPOTTER)
 When a precaution is cheaper than the expected cost of the accident the actor does not
act w reasonable care when they fail to take precaution n
 B<P×L
 Where:
 B = the price of precaution
 P = Probability of accident occurring; the chance of odds the accident will
occur. P is always a number between 0 and 1. If it were 0 there is no chance
the accident will occur
 L = the value of the loss
 P x L is the expected cost of the accident
 If B is less than P x L —> negligent
 If B = PL —> not negligent
 If P x L is greater than B —> not negligent
 A person acts neg if the person does not exercise reasonable care under all
circumstances. Primary factors to consider in ascertaining whether the person’s conduct
lacks reasonable care are
 1) the foreseeable likelihood that a person’s conduct will result in harm (B)
 2) the foreseeable severity of any harm that may ensure (P)
 3) and the burden of precautions to eliminate or reduce the risk of harm (L)
 Alternatives to doing math:
 When L is 100,000 and P = 1 in 10,000
 1 in 10,000 is 0.0001
 Multiply 100,000 by 0.0001 and you get PL= 10
 Take 100,000 and erase 3 zeros at the end: 100
 One chance in 10,000 results in PL of 10
 When L is 100,000 and P= 1 in 10
 1 in 10 chance is 0.1
 Take 100,000 and erase one zero at zero at the end
 PL= 10,000
 When L = 100,000 and P= 1 in 100
 1 chance in 100 is the same as 0.01
 Take 100,000 and erase two zeros at the end
 PL= 1,000
 Whether a person has acted reasonable depends on a comparison of cost benefits, or
burdens and gains
 Hypo
 Children enjoy sneaking into a railroad yard and playing with the equipment at night.
Nothing better to do in rural Nebraska around 1900; no electronics! The railroad can
take precautions aimed at avoiding the harm to the trespassing children. Assuming it has
a duty of care, is it negligent with reference to the Hand formula when it omits one or
more of the precautions described below? Here are three options for the railroad along
with dollar costs that I made up with the date of the case in mind—they’d be higher
today.
 Over one week of time the harm to think about is a child spinning a turntable (a large
hunk of metal on wheels) and trapping his foot, amputating it. Assume the injury of an
amputated foot = $100,000. The chance of a child’s foot getting amputated over the
course of one week is 1 in 10,000. On the menu of precautions the railroad might take:
(P- 1 in 10,000; L-100,000)
 (A) Guards in shifts, 24/7, at a total of $100 per week, to keep trespassing children
out.
(B) One part-time guard for the high-risk early evenings, at $25 per week. In all its
years of operation, the railroad has never experienced a child losing a foot on its
turntable.
(C) A staple lock on the turntable, which keeps the turntable from spinning.
Amortized cost for acquisition and maintenance, spread out over time: $2 per week.
(A-C is the B; this is the cheapest)
 Now assume the plaintiff is a child who sneaked in and got his foot amputated on the
turntable. For his negligence claim against the railroad, consider B, P, and L.
L = value of the loss
P = probability
B = price of precaution
 (1) What is PL for this hypothetical?
 (A) $10.
 (B) $100.
 (C) $100,000.
 (D) $2.
 P = 1 in 10,000
 L = 100,000
- equation: P: 10,000 x 1= 0.1
P x L:
 (P) 0.1 x (L) 100,000= 10
 (2) The cost-justified precaution for the railroad to take against the risk of foot
amputations to child trespassers is:
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(A) either the part-time guard or the staple lock. (wrong bc part-time exceeds the
cost)
 (B) the staple lock only.
 (C) any of the three precautions, because the staple lock is cheaper than PL, and
the other two can reduce or eliminate other risks.
 (D) none of the three precautions mentioned, because all of them exceed PL.
Res ipsa loquitur- (thing for itself speaks) permits a jury to say D careless w out evidence (abt
particular facts-similar to strict) BARELY USED
 P’s who want damages for accidently inflicted injury will use it
 Gives P’s a benefit only if the P can succeed in qualifying for it
 Similar to strict liability expect here P’s don’t need evidence if unreasonable conduct before
they can reach a jury (but to show P’s must show they are entitled to exceptional treatment)
 Requirements
 1) injury bespeaks neg. Neg in the sense of breach of duty not the entire claim
 2) The instrumentality causing the injury must have been in the D’s exclusive control
 exclusive control- P needs to show nobody else could have been responsible for the
injury; courts interpret this as forcing the P to show that it is likely the D engaged in
whatever acts probably cause the injury rather than 100% control
 P’s usually want multiple D’s for this- ex- the dr, owner of the hospital the surgeon, the
anestholigist
 Medical malpractice-Res ipsa loquitur
 P does not know what the D did or failed to do but can show that the medical materials or
supplies were left inside there body for the operation (don’t need evidence if the material
inside looks like them)
 Circumstantial evidence- evidence that requires an inference (direct evidence contains an
assertion by a person)
 Ex- length of skid marks on the road suggest vehicle was going fast, fingerprints matching
the killer on the accused person suggest they killed them
Negligence per se (of itself)
 When the D has violated a statute/regulation that states a standard of conduct
 Like strict liability, if applies D cant argue abt duty and breach
 Requirements: an actor is neg if w out excuse the actor violates a statute that is designed to
protect against the type of accident the actor’s conduct causes and if the accident victim is
within the class of persons the statue is designed to protect
 The P must do more than establish D violated the statute
 1) type of hazard- the accident must be what the legislature identified as worth worry
about—>the right sort of accident
 The court needs to identify the accident in the statue; what the statue was designed
for
 Ex- Gorris- the court said the statue was designed for fires not slip and fall
injuries
 2) class of persons
 If not met go to ordinary neg to see if there is a breach- did D acts as a reasonable person?
 Resembles res ipsa loquitor in that it benefits P’s on the issue of breach and most P’s don’t get it
 IF SATISFY NEG PER SE DON’T NEED TO SATISFY BREACH OR DUTY
 Excuses
 the actor’s youth or physical incapacity thwarted compliance
 the actor made reasonable efforts to comply w the staute
 the actor was justifiably ignorant of facts that made the statue applicable to her conduct
 the statutory standard was vague or ambiguous
 compliance to the staute would have been more dangerous than noncompliance
 P’s who can identify the statute violation= if fail neg per se may still be able to establish a neg
claim if she can prove duty and breach without referring to the statute
 Wawensa- flunked neg per se on purpose criterion
 Insurance company paid out a claim then brought a tort action against the person who
caused the loss
 M carelessly dropped a lit cig onto L’s property causing a fire. Neither L nor M was a party to
this action
 L- lumber company insured by P
 M- a teenager, and his friend trespassed onto L’s property
 D- gas station that sold the cigs to M’s friend violating statute prohibiting sale to minors
 P- property insurer
 Causation
 Breach of the duty caused the injury
 A connection between the injury and the breach of duty
 Judges are more interventionists on proximate cause than breach or actual cause and more likely to
enter summary judgement for the defendant
 Actual- but for the breach of duty the injury would not have occurred
 If the actor had not breached her duty would the harm have happened
 Ex- but for Lovin’s failure to fill the script w ordinary care of a pharmacist, Walter would not
have been poisoned by the wrong drug
 Certain situations breach might be present but not causation
 Ex- Walter intends to take the drug given by the pharmacist which would have harmed her
but she isn’t injured by it bc she dies before opening the container
 If you know D negligent but can’t identify who is negligent
 Loss of chance
 Identification
 Alternative liability
 Market share liability
 Substantial factor and its discontents
 Multiple necessary causes
 Each D’s breach of duty wat not enough to cause the injury by itself but tg it did (belle
realty)
 If there was only 1 D it wouldn’t have happened need the other to create the accident
 Multiple sufficient causes
 A D’s breach of duty was enough to cause the injury but at least one other antecedent
existed that was also forceful enough to cause the injury
 Always flunk in the but for approach for causation
 They breached their duty but the harm would have happened regardless
 Proximate- the injury must be foreseeable? Some sort of injury one could expect would be caused
by the breach
 Even if the P can prove that she would not have been injured but for (despite would’ve
happened) the D’s carelessness, she must also prove prox cause- a connection between the
injury and D’s carelessness
 Foreseeability-
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 SCOPE OF RISK- test for prox cause that asks whether the injury to the P falls within the set
of dangerous possibilities that make the D’s act or omission a breach of duty
 An actor’s liability is limited to those harms that result from the risk that made the
actor’s conduct tortious restatement of torts §29
 Need to be foreseen- limited to the harms that result from the risk
 Palsgraff- P victim when employees of LIRR neg pushed a passenger onto a train causing
an explosion; Cardoz says unforeseeable bc she was outside the zone of ppl in danger
but she was owed a duty of care by the person who had thee package but no reasonable
jury would conclude D breached duty to her
 Foreseeability as an eye- if I do what I am doing without due care which bad
consequeneces should I anticipate
 The ones you know and can see are within the scopr of risk; the unforeseeable
consequences are outside of the risk
 The foreseeable one- prox cause
 Unforeseeable- no prox cause
 If P want to broaden the scope
 If D want to tighten the scope
 Other forces can break the causal link for prox cause
 Superseding cause- breaks the chain of causation bc it falls outside the scope of risk
 1) D did smtg careless
 2) a third party wrong doer acts independently of D but in a way that uses or takes
advantage of D’s careless action
 3) the third party injures P
 Intervening causes- don’t break the chain
Dram shop act- the tort cause of action they provide against bars and restaurants for harms caused
by patrons who left these establishments in an intoxicated state and then injured someone
 Doesn’t apply to social hosts only bars and restaurants
Gun manufacturer- immunizes gun manufactures when they market their product in such a way
that makes them accessible to people who get them illegally
Jury decides (but judges more likely to take the prox cause element away from the jury)
If D had acted w reasonable care would the injury have occurred (answer must be no for P to
prevail)
Toxic torts- P’s allege that exposure to a dangerous substance caused them physical injury
 Actual cause has more layers when there is a toxic substance
 Difficult to provide evidence the toxin caused the injury
 1) whether the substance that the P says was neg supplied is a capable of causing the harm
alleged
 2) whether the P as a individual was harmed by the substance
Multiple necessary causation- when P’s injury would not have occurred without both a lack of
electricity from Con Ed and lack of staircase safety from neg of Belle Realty
When identification is an issue an individual D’s product or action might not have touched the P’s
body or property
 Mult sufficient cases by contrast all made contact w the P
Concert of action- don’t have to both agree to do the wrong to have done the wrong
 Drag race 2 speeding cars hurtle through a populated area—>each D’s neg is understood to be
part of a common enterprise (Tice and Simonson were hunting tg but their breach of duty did
not include an agreement to do smtg careless tg in the way that a drag race was)
 The idea requires D’s to have participated in a dangerous action jointly w a common purpose

V.
VI.
In medical mal practice
 In MA said that a P recovering in a medical malpractice action needs to the meet the 50% more
probable than not standard/preponderance of evidence
 Loss of chance- chance of death is not limited to doctor D’s and wrongful death (any deprivation
and any neg could qualify)
 Can recharacterize loss of chance:
 If the injury is Falcon’s death then P cant show more than probably than not the lapse by
the D caused the injury but if you recharacterize as loss of chance then the Dr’s lapse
deprived Nena of a valuable lottery ticket
 The value of her life
 Alternative causation- require each D in a mult D case to disprove that his carelessness caused the
P’s injury (only if the P can demonstrate their entitlement to exceptional doctrine treatment)
 Alternative liability
 Market share liability (similar to that of loss of chance)
 Each D will be held liable for the proportion of the judgement represented by ts share of (the
DES) marker unless it demonstrates that it could not have made the product which caused P’s
injuries because liability here is based on the over all risk produced and not causation in a single
case
Negligence defenses
 Plaintiff negligence- carelessness by the P with respect to her safety (in some states say no recovery if
found)
 Contributory neg- completely bar a P from recovering if they played a role; can never recover
 Comparative neg- reduce P’s recovery if they played a role in her injury
 For damages need to determine the fault of the P and then D to determine the fault chargeable
to each= called apportionement- between the P and D (also used to divide responsibility
between 2 or more D’s)
 Pure comparative- P always recovers
 Not greater than- P’s neg must be 50% or less to recover, if 50 can
 Not as great- must be less than 50%; if 50 cant recover
 Assumption of risk (affirmative defense- D must prove it)
 Says the P embraced the risk knowingly and voluntarily (not comparative or cont)
 Can be expressed or implied
 Expressed- put into words which don’t need to be in writing but typically are; written statement
about the risk exists in the record; verbal can be oral or written
 Implied- the ct deduces from P’s conduct that he understood the risk or accepted it voluntarily,
the assumption of risk is inferred from the P’s conduct (no words)
 Knowledge and volition
 Primary- applies when the ct finds that the D owed no duty of care with respect to the
present in the case
 Secondary- an affirmative defense available after the P fulfills the elements of the prima
facie
 Applied narrowly
 Exists in recreational activities- zip lining
Prenatal negligence
 Wrongful pregnancy- birth control failed and as a result an unplanned child was born
 Damages exist when a P can link the formation of a baby to a lapse on the part of D
 Impairment- Birth of a child with an impairment that could have been avoided through reasonable
conduct in testing or genetic counseling

P’s do not blame the D’s for having caused the child to be created rather they hold D’s responsible
for the neg failure to recommend termination of pregnancy
 Wrongful life- P contends that he ought not to exist and his existence would not have happened but
for the D’s neg (wrongful birth)

albala

enright

breach of duty-medical malpractice lack 
Breach of duty- neg failure to test DES
intergenerational duty
and learn of dangerousness; was a breach of
duty owed to the baby

P unbornat time of breach

P unborn at time of breach

Injury- brain damage

Injury- brain damage
VII.
VIII.
Damages
 Egg shell doctrine- D is liable for P’s unforeseeable and uncommon reactions to the D’s negligent or
intentional act (anxiety)
 Compensatory damages- put the factfinder’s measurement of a P’s injury into 2 groups
 Economic losses- medical bills and lost earnings
 Noneconomic losses- intangibles, past and future pain and suffering, destruction of previous
lifestyle
 Decided by the jury
 Punitive damages- additional damages awarded to P when comp damages do not provide adequate
redress, set out to deter egregious conduct, rarely awarded, P must establish D was more than just
careless
 Willful and wanton disregard- in NY goes beyond mere negligence and are warranted only where
aggravating factors demonstrate an additional level of wrongful conduct
 If the punitive damages award is too high it will be sent to fed courts (bc it violates the constitution)
 Guideposts
 Degree of rephrenshibility
 Ratio
 Sanctions from outside tort liability for comparable misconduct
 Proportionality
 Economic punishment- supposed to deter criminal conduct
 Collateral source rule- jurors are not allowed to be told P may have insurance to cover the loss
Strict liability (injury not intended)
 Strict liability can apply for an ultrahazardous or abnormally dangerous activity
 Respondeat superior- let the master answer for the wrongs of the servant (employer strictly liable for
employee) (form of strict lib)
 An employer is liable for certain torts that employees commit within the scope of their
commitment
 Strict lib- Walmart employed Lovin, Henry did smtg in the scope of his employment that fulfilled the
elements of neg (all P has to show)
 Giving someone aids
 Vicarious liability- liability that the law imputes to someone for the actions of another (security guard
to jail mate) Respondeat superior falls under this
 Statutory strict liability- different than neg per se doesn’t have to meet those requirements and does
not have explicit mention of strict liability

Ex- no person shall operate any vehicle in violation of any restriction contained on his license
 Activities that are not dangerous enough to warrant criminal prohibition but too dangerous to be
covered by the leniency of negligence all under strict lib
 Prima facie
 1)an activity the court regards as abnormally dangerous AND
 2) injury AND
 3) causation (the injury to P must be the type of injury that makes the activity dangerous to begin
with-in the scope of risk)
 YOU BROKE IT YOU PAY FOR IT DOESN’T MATTER IF YOU HAD REASONABLE CARE ETC
 Prox- outside scope of risk or inside scope of risk
 Matter of common usuage- majority concludes that the setting off of fireworks is not common
 Defenses to strict liability
 Comparative fault
 Statute of limitations
 Reciprocal v non-recirporcal risks
 Reciprocal- negligence, that a typical person imposes them on others while at the same time being
in danger of harm herself or himself. I have a dog that might bite you; you have a dog that might
bite you
 Non-reciprocal- strict liability- a small number of ppl engage in it and are not themselves
endangered by that activity, strict liability becomes fairer
 Judge made strict liability
 Activity appears hard to keep safe through merely “reasonable” care
 Kind of odd as a chosen activity
 Odd- in context* beekeeping odd depending on who is doing it
 Odd- in the location where it occurs
 Asymmetry- the activity chosen by D put P at risk, but P isn’t doing anything similar to endanger D
 Deviant in a risky way-abnormally dangerous
 Prima facie
 1) injury
 2) abnormally dangerous activity
 3) causation and actual and prox cause
 Test for determining ultrahazardous restatement second of torts §520(4 out of the 6 is sufficient)
KNOW THEM AND BE ABLE TO APPLY THEM TO A FACT PATTERN
 In determining whether an activity is abnormally dangerous the following factors are to be
considered
 A. existence of a high degree of risk of some harm to the person, land or chattels of others
(higher degree of risk similar to P in hand formula)
 B. likelihood that the harm that results from it will be great (similar to L)
 C. inability to eliminate the risk by the exercise of reasonable care (whether reasonable care will
eliminate risk, similar to B)

IX.
X.
XI.
D. extent to which the activity is not a matter of common usage (whether the activity is of
common usage)
 E. inappropriateness of the activity to the place where it is carried on (appropriateness of the
activity within its location)
 F. extent to which its value to the community is outweighed by its dangerous attributes (value of
the activity to the community)
 A,b, and c have hand formula counterparts
 D, e, and f bring societal considerations, always necessary when is looking for abnormally in
a legal rule
 Majority doesn’t need to be all
 “high degree of risk of some harm to the person, land, or chattels of others and that harm
must be great”
 Third restatement §20
 Abnormally dangerous activities
 A. An actor who carries on an abnormally dangerous activity is subject to strict liability for
physical harm resulting from the activity
 B. An activity is abnormally dangerous if
 1. The activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors and
 2. The activity is not one of common usage
 Only physical harm
 Somebody has to suffer
Liability rule- the “is” and the “ought”- whether its sounds
 Even if did everything right doesn’t matter still had a duty of care
Repeat player defendant
 Via industrialization- a business enterprise that regularly generates physical injuries through the course
of its operations; can expect to be litigating personal injury claims as long as it stays solvent in business
 If repeat player want neg not strict liability
Products strict liability
 Policy justifications for those imposing a form of strict liability on manu whose defective products
injure people
 Absolute- form of lib should be imposed on D
 Defective- what the P has to prove
 Imposing a form of strict liability on manufactures whose defective products injure people
 The purpose of such liability is to ensure that the costs of injuries resulting from defective products are
borne by the manu that put such products on the market rather than by injured person who are
powerless to protect themselves
 Traditional form breaking breach of warranty

 Policy- even if no neg public policy demands that responsibility be fixed wherever it will most
effectively reduce the hazards to life and health inherent in defectivtive products that reach the market
 Health and wealth
 Making life better for the public through tort liability rule AND looking forward more than backward
 Not focusing so much on P and her injury but on risks experienced by the larger population
 The idea is that injury happens D, doesn’t want to be liable so creates safer product to reduce its
exposure to liability
 As a result tort is delivering safety and insurance
 Express warranty- contends that the D made an exploicity, overt representation, and then didn’t meet it
(wrote it or said it and then didn’t live up to the standard)

 Implied warranty- the illicit intercourse of tort and contract






A warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is
a merchant with respect to goods of that kind
 Goods to be merchantable must be at least such as
 Pass without objection in the trade under the contract description and
 Are fit for thew ordinary purposes for which such goods are use
3 types of prodyct defect
 Manufacture- bad unit the rest of the product line is okay
 Design- P is challenging the entire product line
 Warning- P challenging the entire product line
3 options
 A- the most conservative pro seller- a sellers warranty whether express or implied extends to any
natural person who is in the family oor household of his buyer or who is a guest in his home if it
reasonable to expect that such person may use, consume or be affected by the goods and who is
injured in person by breach of warranty
 B- the centrist option- a seller’s warranty whether express or implied extends to any natural person
who may reasonably be expected to use, consumer or be affected by the goods and who is injured
in person by breach of warranty
 C- the most pro liberal-pro consumer- a seller’s warranty whether express or implied extends to any
person who may reasonably be expected to use, consumer or be affected by the goods and who is
injured by breach of the warranty
Products liability elements
 Actor A is subject to person P in products liability if:
 1) P has suffered an injury
 2) A sold a product
 3) A is a commercial seller of such products
 4) at the time it was sold by A, the product was in defective condition and
 5) the defect functioned as an actual and prox cause of P’s injury
Seller= always businesses
402a
 in the business of selling- for a person or business to fit the definition of a seller in the context of
product liability law the person must be engaged in the business of selling that product. Therefore, the
owner of the restaurant who sells his care to his friends does not fit the definition as a seller, can’t be
an occasional seller need to be engaging in constant business
 What is the effect of labeling an action “products liability rather than neg
 Products liability introduces strict liability for breach of contract
 Manufacturing Defect Claim: A plaintiff claims one bad unit within the product line caused injury.
 Design Defect Claim: Challenges the entire product line, with the plaintiff arguing that the design itself is unsafe.
This often includes failure to warn as an aspect of the claim.
 Main Tests for Design Defects:
 Risk-Utility Test/third restatement : This is commonly used by courts. It assesses the design’s safety based
on the Wade Factors, which focus on what a reasonable person would consider a safe design.
 Requires the P demonstrate that the foreseeable risk of harm posed by the allegedly defective
product could have been reduced or avoided by the adoption of a reasonable alternative design
 Expert testimony typically required to prove
 A product is defective in design when the forseeable risks of harm posed by the prodct could have been
reduced or avoided by the adoption of a reasonable alt design and the omission of the alt design renders
the product not reasonable safe
 More like neg
 Follows neg + hand formula
 Expensive for P but sometimes a safer alt design is easy for P’s to establish; de-emphasizing the P also
de-empahsizes that fault the P’s conduct
 Consumer Expectations Test: a design is defective if the product fails to perform as safely as an ordinary
customer would expect when (the product is) used in an intended or reasonably foreseeable manner.
 Concerned w what reasonable user except products safety
 More like contract
 Focuses on the product
 Cheap for P’s but its not clear whose expectations should govern when the injured P did not buy the
product; emphasizing the P also emphasizes defenses that fault the P’s conduct
 Reasonable Alternative Design Requirement (under the Third Restatement's risk-utility test):
 Plaintiffs must demonstrate that a reasonable alternative design could have prevented the injury.
 This often requires expert testimony to prove the feasibility and cost-effectiveness of an alternative design.

 Prox cause Superseding cause
 Comparative neg
 Assumption of risk
XII.
Intentional torts – P needs to show CoA, D had intent and knew consequences
 2 requirements for all intentional torts
 1) desire or purpose (D obvi wanted to hurt P)
 2) substantial certainty (awareness the risk will happen)
 Beyond willful and wanton—>relatively egregious
 Trespass- injury in trespass, every unauthorized intrusion of land
 Need to be lawfully in possession of land can bring claims for trespass (owners of property and
renters; members of a household who lawfully reside in that household can bring claims for
trespass)
 kind of like strict lib don’t need to show injury
 A P may recover even where the D initially had permission to enter the P’s land if the permission
eventually expires or they withdraw permission
 Trespass above and below/ cujus est solum ejus est usque ad coelum ed at inferos- physical
intrusion above or below the property of a landowner constitutes a trespass to land
 Drones- if interference w enjoyment of the land
 Private necessity
 Defense to trespass to land claim where an actor asserts that his entity onto the property of
another was necessary to prevent imminent harm to the actor or to the actor’s property
 Entry on prop was necessary to prevent harm to actor or his prop
 Harm caused by a reasonable looking trespass Restatement second §158 for trespass to land as strict lib



One is subject to lib to another for trespass, irrespective of whether he thereby causes harm to
any legally protected interest of the other, if he intentionally
 A. Enters land in the possession of the other, or causes a thing or a third person to do so, or
 B. remains on the land or
 C. fails to remove from the land a thing which is under a duty to remove
 D intentionally caused an entry into the land of the P
Tresspasser does not mean a person who commits intentional tort of trespass (refers to the P who
suffers a physical injury while present on land against the will of the D land possessor
Family tree history of trespass (all intentional, wrongful, direct, interference)


Property
 To land
 Chattels (intruding on your moveable object- your computer)
Person
 Battery
 Assault
 False imprisonment
 Battery
 Actually commiting it no apprehension
 Prima facie
 Actor A is subject to liability tp othjer person P for battery if
 1) A acts
 2) intending to cause contact w P and
 3) the contact with P that A intends is harmful or offensive types
 4) A’s act causes P to suffer a contact that is harmful or offensive


Intent Requirement:
 Single Intent: The defendant must simply intend to make contact, with no requirement that they intend
harm or offense.
 Dual Intent: Some jurisdictions require that the defendant must (1) intend the contact and (2) intend
that the contact be harmful or offensive.
 Restatement Endorsement: The Restatement (Third) of Torts supports the single-intent rule, meaning
liability can be established with intent to contact alone.
Relationship with Assault: Battery requires actual physical contact, unlike assault, which only requires that
the plaintiff apprehend imminent harmful or offensive contact.
 Assault
 Apprehending the harm, threat to commit violence
 Prima facie
 Actor A is subject to liability to other person P for assault oif
 A acts
 Intending to cause in P the apprehension of imminenet harmful or offensivce contact w P
and
 A’s act causes P reasonably to apprehend such contatct
 Apprehension of an imminent harmful or offensive contact
 Reasonableness abt P’s belief that she is abt to experience human bodily contact
 P apprehends A’s act causes P reasonably to apprehend such contatct- P is aware that the aware
it was going to happen
 Aiding and abetting

 False imprisonment

Prima Facie Case
o
o
o
o
Actor A is subject to liability to another person P for false imprisonment if:
i.
A acts,
ii.
intending to confine P,
iii.
A’s act causes P to be confined; and
iv.
P is aware of her confinement.
Definition of False Imprisonment: False imprisonment is defined as “wrongful confinement,” which may be
broader than literal “imprisonment.” The term suggests a restriction of freedom without legal justification.
Geography of Confinement: Case law considers various environments for confinement, including stationary
settings (e.g., rooms, buildings) and non-stationary settings (e.g., moving vehicles). For instance,
confinement in an automobile restricts the plaintiff’s movement even without walls.
No Physical Harm Required: The plaintiff does not need to suffer physical harm, but the elements of
confinement (intent, act, confinement, and awareness) must all be met for liability.


If I confine you by accident doesn’t work
The elements of a false imprisonment cause of action are:
 Willful detention by the D
 W/out consent of detainee
 W/out authority of law
 Infliction of emotional distress
 Elements of IIED (Restatement (Second) of Torts § 46)
 Actor A is liable for IIED to person P if:
 A intentionally or recklessly engages in conduct.
 Conduct is extreme and outrageous.
 Conduct causes P to suffer severe emotional distress.
 “Or recklessly” (Mental state):
 IIED allows recklessness (not just intent) to satisfy the mental state requirement.
 Desire vs. Substantial Certainty:
 Desire = Defendant aims for the result.
 Substantial certainty = Defendant knows the result will almost certainly occur.
 Recklessness lies closer to substantial certainty, giving plaintiffs a lower threshold to
prove intent compared to older torts.
 Extreme and Outrageous Conduct:
 Conduct must be beyond mere negligence—“willful and wanton” behavior is
required.
 Courts use terms like “degree of reprehensibility” (BMW v. Gore) to gauge the
severity of conduct.
 Judicial conservatism:
 Courts are hesitant to find conduct “outrageous” unless it is deviant or shocking
(e.g., “gaslighting” or systemic bullying is not always deemed outrageous if it’s
“commonplace”).
 Judicial Attitude Toward IIED
 Courts are skeptical about IIED claims:
 Plaintiffs must overcome stringent tests for “extreme and outrageous” conduct and “severe
emotional distress”.
 Courts often grant summary judgment for defendants.
 Important for exams: Do not stretch to find IIED unless the facts explicitly suggest
intentional or reckless emotional harm.
 Negligent Infliction of Emotional Distress (NIED)
 Courts view NIED claims with judicial hostility and are reluctant to entertain them.

Judges fear opening the floodgates for emotional distress claims unless tightly constrained by
established rules.
 Limited Duty Doctrine in NIED (negligence with emotional distress)
 NIED involves a limited duty of care:
 No general duty to rescue or protect emotional well-being.
 Examples of no duty:
 No duty to rescue strangers.
 No duty to safeguard economic or emotional well-being.
 Courts apply Strauss v. Belle Realty logic to limit duties.
 Example Robb
 The Impact Rule (physical impact that causes emotional distress from D’s neg conduct)
 Traditional rule: Emotional distress is recoverable only if tied to a bodily harm claim.
 Example: Antoinette Walter v. Wal-Mart:
 Plaintiff’s distress was recoverable because it stemmed from physical harm
caused by negligence (e.g., being given the wrong medication).
 Zone of Danger Rule
 A modern alternative to the impact rule:
 Plaintiffs can recover for emotional distress if they were near the locus of
potential harm (e.g., “almost impacted” by harm).
 Example: Robb case:
 Plaintiff was in the zone of danger but did not suffer direct impact. Car stuck
ion railroad she moved and freak
 Courts permit recovery without physical impact if distress arises from
imminent danger of harm
 Mental state for disabled
 If your experiencing delusions can be liable
 If you cant control your movements then not liable
 Single intent v dual intent
 Single- actor must intend to cause a physical contact w the person of the P
 Dual- the actor must
 1) possess that single intent (intend to cause a contact))
 2) intend that by that contact either to offend the other or cause the other bodily harm
 AB- intent fulfilled when the D intended to a cross a boundary
 Transferred intent
 Only can be used for trespass, battery, assault, and false?
 D wishes to cause harm in one way but ends up causing harm differently
 1) same victim diff intentional tort
 D wanted to achieve assault, ended up w battery
 D wanted to achieve battery, ended up w assault
 D wanted false imprisonment ended up w battery
 2) same intentional tort, different victim
 Defenses to intentional torts
 Consent
 A P can consent to what could amount to an intentional tort implicitly through conduct, or
expressly through writing or some kind or verbal communication
 Implicit consent- participating in football
 Medical consent- express consent
 Self defense

 Justification
 A D asserting self-defense as a justification for committing an intentional tort argues in
essence that although he intentionally injured the P, he was justified in injuring the P to
prevent the P from injuring the D
 Not liable for damages
 D has the burden of establishing self-defensive by preponderance of credible evidence
 Needs to establish that they reasonably believed that D was attacking or abt to attack
(him, her) and that the force that P used to prevent injury was reasonably under the
circumstances
 If you had the reasonable belief that someone was facing a physical attack from D and that
the force P used was reasonable under the circumstance you will not be liable for battery
 An injurer may invoke self defense only if he actually and reasonably perceives an imminent
risk of physical injury to himself
 Actually- subjective, personal to the injurer
 Reasonably- objective
Deterrents and nondeadly force as acceptable self defense
 Gentler instruments of potentional pain- spiked walls, broken glass- are understood by
courts as detterents rather than instigators of harm
 1) impose force that is not deadly
 2) perceived by courts as more like warnings than the intentional infliction of harmful
contact- they put potential intruders on notice that the intruders are likely to suffer
physical injuries if they carry out their intrusion
 Deadly force to protect property
 Deadly force is acceptable
 1) when the threat to property also threatens human life
 2) to prevent breaking and entry into a dwelling place but dwelling place cant be
occupied by human beings
 3) to prevent wrongful dispossession (eviction) from the user’s dwelling place even if
this dispossession does not threaten bodily harm
 4) to achieve an arrest for certain felonies even though the felony might not threaten
bodily harm
