Tortfeasor does not intend the
consequences of the act or believes
they will occur.
 Actor’s conduct merely creates a
foreseeable risk of injury. 

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
2

Analysis:
 Duty: Defendant owed Plaintiff a duty
of care;
 Breach: Defendant breached that duty;
 Causation: Defendant’s breach caused
the injury;
 Damages: Plaintiff suffered legal injury.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
3

Defendant owes duty to protect
Plaintiff from foreseeable risks that
Defendant knew or should have
known about.
 A foreseeable risk is one in which the
reasonable person would anticipate
and guard against it.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
4

Duty of Landowners to warn
invitees, exercise reasonable care.
 Landlords owe duty of reasonable care
to tenants and guests for common areas
such as stairs and laundry rooms.

CASE 7.1 McClain v. Octagon Plaza, LLC.
(2008). Can a landlord be liable for
negligent misrepresentation about the size
of a leased space?
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
5

Duty of Landowners (continued).
 Duty to Warn Business Invitees of
Foreseeable Risks (knew or should
have known).
 EXCEPTION: Obvious Risks.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
6

Duty of Professionals.
 Professionals may owe higher duty of
care based on special education, skill or
intelligence.
 Breach of duty is called professional
malpractice.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
7

No Duty to Rescue.
 Law requires individuals to act
reasonably, but there is no duty to
rescue (or warn, or come to the aid of
another), unless there is a special
relationship of trust.
 However, if rescue is attempted, the law
requires due care and follow through.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
8

Even though a Tortfeasor owes a
duty of care and breaches the duty
of care, the act must have caused
the Plaintiff’s injuries. Causation is
both:
 Causation in Fact, and
 Proximate Cause.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
9
Did the injury occur because of the
Defendant’s act, or would the injury
have occurred anyway?
 Usually determined by the “but for”
test, i.e., but for the Defendant’s act
the injury would not have occurred.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
10
An act is the proximate (or legal)
cause of the injury when the causal
connection between the act and
injury is strong enough to impose
liability.
 CASE 7.2 Palsgraf v. Long Island
Railroad Co. (1928). Were the

plaintiff’s injuries foreseeable?
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
11
To recover, Plaintiff must show
legally recognizable injury.
 Compensatory Damages are
designed to reimburse Plaintiff for
actual losses.
 Punitive Damages are designed to
punish the tortfeasor and deter
others from wrongdoing.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
12
Assumption of Risk. 
 Superseding Intervening Cause.
 Contributory or Comparative
Negligence.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
13


Plaintiff has knowledge of the risk,
and voluntarily engages in the act
anyway.
Defense can be used by
participants, as well as spectators
and bystanders. 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
14

Assumption of the risk can be
express or implied.
Express by agreement.
Implied by plaintiff’s knowledge of
risks and subsequent conduct.
 CASE 7.3 Pfenning v. Lineman (2010).
Is the driver of a beverage cart a
“participant” at a golfing event?


© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
15

A unforeseeable, intervening act
that breaks the causal link between
Defendant’s act and Plaintiff’s
injury, relieving Defendant of
liability.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
16
Under common law doctrine of
contributory negligence, if Plaintiff
in any way caused his injury, he was
barred from recovery.
 Most states have replaced
contributory negligence with the
doctrine of comparative
negligence.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
17
Comparative negligence computes
liability of Plaintiff and Defendant
and apportions damages.
 Pure Comparative Negligence
States (California and New York):
allows Plaintiff to recover even if his
liability is greater than that of
Defendant.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
18

Modified Comparative Negligence
States: percent of damages Plaintiff
causes herself are subtracted from
the total award.
 50 Percent Rule: Plaintiff recovers only if
liability is less than 50%.
 51 Percent Rule: Plaintiff recovers
nothing if liability is greater than 50%.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
19

Res Ipsa Loquitur.
 Facts and circumstances create
presumption of negligence by
Defendant.
 Burden of proof shifts to Defendant to
show he was not negligent.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
20

Negligence Per Se occurs when
Defendant violates a statute designed
to protect Plaintiff:
 Statute sets out standard of care.
 Plaintiff is member of class intended to be
protected by statute.
 Statute designed to prevent Plaintiff’s
injury.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
21



“Danger Invites Rescue” Doctrine.
Good Samaritan Statutes.
Dram Shop Acts.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
22

Development of Strict Liability.
 Theory of strict liability started with
Rylands v. Fletcher (1868 England).
 Defendant’s liability for strict liability is
without regard to: Fault, Foreseeability,
Standard of Care or Causation.
 Strict liability based on abnormally
dangerous activities is one application.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
23

Ultraharzardous or abnormally
dangerous activities:
 Involve serious potential harm;
 Involve high degree of risk that cannot
be made safe; and
 Are not commonly performed in the
community or area.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
24

Wild Animals:
 Persons who keep wild animals are
strictly liable for injuries caused by the
beast.
 Persons who keep domestic animals
are liable if the owner knew or should
have known that animal was
dangerous.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
25
Product Liability: manufacturers can
be found liable without regard to
fault (see Chapter 22).
 Bailments: when goods temporarily
transferred to another (see Chapter
49).

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
26