An Approach to Torts
Torts, Fall 2011, BYU Law, Prof. Nunez
This outline is a somewhat complete representation of the course, but generally does not mention
cases and is light on policy. It will differ very little from outlines of the same class taught before Fall
2011 by Prof. Nunez.
~crb
Contents
I. Background of Torts ................................................................................................................................ 4
II.
Intentional Torts ....................................................................................................................................... 4
A.
Intent ................................................................................................................................................... 4
1. Intent Transfers ................................................................................................................................. 4
B.
Battery ................................................................................................................................................. 4
C.
Assault ................................................................................................................................................. 4
D.
False Imprisonment .......................................................................................................................... 4
E.
Intentional Infliction of Emotional Distress................................................................................. 5
F. Trespass to Land ................................................................................................................................... 5
G.
III.
Defenses ............................................................................................................................................. 5
Torts of Negligence............................................................................................................................... 5
A.
Reasonable Prudent Person ............................................................................................................. 5
B.
Reasonable Prudent Professional.................................................................................................... 5
1. Attorneys ............................................................................................................................................ 6
2. Doctors ............................................................................................................................................... 6
3. Informed Consent ............................................................................................................................. 6
C.
Calculating Reasonable Risk ............................................................................................................ 6
D.
Bright Line Rules of Law ................................................................................................................. 6
E.
Setting the Statute as a Standard of Care ....................................................................................... 6
1. Should it be set? ................................................................................................................................. 6
2. Effect of Setting Statute ................................................................................................................... 6
F. Proof of Negligence Precipitant .......................................................................................................... 7
1. Slip and Fall (Circumstantial v. Direct Evidence) ........................................................................ 7
2. Res Ipsa Loquitur (The Thing Speaks for Itself) .......................................................................... 7
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G.
Causation ............................................................................................................................................ 7
1. But For test. ....................................................................................................................................... 7
2. Substantial Factor .............................................................................................................................. 7
3. Proof of Causation (Daubert) ......................................................................................................... 7
4. Concurrent Causes ............................................................................................................................ 8
H.
Proximate Cause ................................................................................................................................ 8
1. Intervening/Superseding Causes .................................................................................................... 8
I.
Instances of Limited Duty ................................................................................................................... 9
1. Failure to Act ..................................................................................................................................... 9
2. Duty to Rescue .................................................................................................................................. 9
3. Duty to Control Others or Warn Potential Victims .................................................................... 9
4. Pure Economic Loss......................................................................................................................... 9
5. Negligent Emotional Distress ......................................................................................................... 9
6. Negligent Emotional Distress for Bystanders.............................................................................10
7. Duties of Owners and Occupiers of Land ..................................................................................10
J.
Damages ...............................................................................................................................................11
1. Punitive Damages............................................................................................................................11
2. Compensatory Damages ................................................................................................................11
K.
Defenses to Negligence ..................................................................................................................12
1. Contributory Negligence ................................................................................................................12
2. Comparative Negligence ................................................................................................................12
3. Assumption of Risk ........................................................................................................................12
4. Governmental Immunity ...............................................................................................................12
IV.
A.
No Fault Liability and Other Ways to Recover Moola ..................................................................13
Respondeat Superior .......................................................................................................................13
1. Frolic v. Detour ...............................................................................................................................13
B.
Animals .............................................................................................................................................13
1. Strict Liability ...................................................................................................................................13
2. Fence In, Fence Out .......................................................................................................................13
3. Wild Animals—Strict Liability ......................................................................................................13
C.
Abnormally Dangerous, Ultra-Hazardous Activities (Strict Liability!) ....................................13
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1. Historic Dangerous Activity ..........................................................................................................14
D.
V.
Limits on Strict Liability .................................................................................................................14
Products Liability ....................................................................................................................................14
A.
Negligence ........................................................................................................................................14
B.
Warranty ...........................................................................................................................................14
1. Express .............................................................................................................................................14
2. Implied ..............................................................................................................................................14
C.
Strict Liability ...................................................................................................................................15
D.
Defenses to Product Liability ........................................................................................................15
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I.
Background of Torts
The plaintiff will assert that the defendant had a duty to act differently. Tort law exists to
provide restitution, encourage responsible behavior and deter wrongful conduct, allow for
peaceful adjudication, and to restore/vindicate rights.
The writ of trespass evolved into intentional torts while the writ of case developed into
negligence (requiring plaintiff to show damage and some theory of why the defendant is
responsible
Hulle: strict liability; Weaver: contemplates extreme exceptions; Brown: P must prove unlawful
or negligent conduct absent contributory negligence; Cohen: foreseeability matters; Spano:
strict liability for some situations and activites.
II.
Intentional Torts
A.
Intent
A person acts with intent to make something happen, or acts with substantial
certainty that something will happen.
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The minor is liable if he/she could form intent.
The insane person is liable, except for perhaps maliciousness

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Intent Transfers
Intent to hurt Person A transfer to Person B
Intent to commit Tort A transfers to Tort B
1.
B.
Battery
Intentional, harmful or offensive contact with defendant (that actually occurred).
Defendant acted with purpose or subst. certainty that HOC or apprehension thereof
would occur. HOC with objects on plaintiff’s person counts. Offensive based on
ordinary person in prevailing situation. Damages not required. The majority looks to
the intent to cause the contact, damages following. The minority can quibble and call
a battery negligence if the intended contact wasn’t supposed to be harmful.
C.
Assault
Intentional causation of reasonable, conscious apprehension of imminent harm,
backed by apparent, present ability. Plaintiff must have been aware. Words generally
insufficient.
D.
False Imprisonment
Intentionally, unlawfully restrains/confines plaintiff against plaintiff’s will (must be
conscious or unconscious and harmed) where there is not safe remedy. Confinement
is a physical barrier keeping plaintiff in. Unobvious exit doesn’t count as means of
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escape. A credible threat of imminent harm is sufficient in absence of physical
barrier.
E.
Intentional Infliction of Emotional Distress
Intentional, outrageous conduct that causes severe emotional distress. (The four
elements.)
F.
Trespass to Land
Unauthorized entry or continued presence onto the land or reasonable air space of
another.
G.
Defenses
Consent (Implied in fact or law, must be informed and within scope. Person must
have capacity to consent. Deception invalidates consent.)
Self-Defense (in face of real threat, proportionate force, but not retaliation. Retreat
not obligatory in majority view. Minority allows deadly force when put to wall (or
unsafe to retreat).
Defense of Others (In other person’s shoe test).
Defense of Property (Reasonable, proportionate. Residence status heightens your
options. Mechanical devices can’t do much more than you would.)
Necessity (Public: Act was necessary to prevent disaster and property was toast
anyways. Private: If act was necessary, then it is fine, but you must pay compensation
and ultimately you will weigh cost/benefit.)
Justification (reasonable protection of stuff under custody)
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III.
Torts of Negligence
A negligence action is based on duty, breach of that duty, causation (fact and proximate),
and actual damages that are relevant. Duty +Breach are the standard of care.
A.
Reasonable Prudent Person
What would the RPP have done? Stupidity irrelevant—facts that adults should know
are the standard. (Check tire.) Higher knowledge is relevant. The RPP isn’t a hero—
emergency situations alter standard somewhat. Physical disabilities are weighed.
Childhood is weighed except for when child is doing an inherently dangerous or
adult activity. Permanent insanity is not a defense, but completely temporary and
unexpected insanity/incapacitation is a defense.
B.
Reasonable Prudent Professional
The higher degree of knowledge, skill, or experience makes one accountable. The
standard is still objective and looks at the training of an ordinary member of the
profession. Such accountability must be established by expert testimony and the
“average” is a bad measurement. Negligence of a professional is termed malpractice.
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1.
Attorneys
Should possess requisite learning, skill, and ability. Must exert best judgment.
A small error is insufficient. Must exercise reasonable and ordinary care and
diligence.
2.
Doctors
Malpractice must be affirmatively proven with expert testimony. A testimony
that other Dr. would have done differently not sufficient. Gross negligence
(like a sponge in person) doesn’t require experts. Measured against ordinary
standard of practice. Rules: locality, similar locality, national standard.
3.
Informed Consent
Duty: Doctor must adequately disclose the material risks and alternatives to
treatment. It’s material if it is likely to affect person’s decision. (Moore v.
Regents). Three standards: Particular patient would want to know, reasonable
person would want to know (majority), reasonable physician (tradition).
Exceptions: common knowledge, emergency, disclosure detrimental.
Causation: Patient wouldn’t have consented with knowledge. Damages must
exist.
C.
Calculating Reasonable Risk
 Damage must be foreseeable. (Frozen fire hydrants)
 Courts consider the burden of preventing the harm.
 Burden < or> than Probability x Damages
D.
Bright Line Rules of Law
U.S. Supreme Court rule for train crossings. Is it always wise?
E.
Setting the Statute as a Standard of Care
1.
Should it be set?
Person harmed is member of class statute was to protect. Hazard as one the
legislature intended to prevent. Is it appropriate to use statute? (Overall
effect, whether it meshes with common law, how far damages and liability
spread.)
2.
Effect of Setting Statute
 Negligence Per Se (Majority) (Reasonable excuse can get defendant
off of the hook.)
 Rebuttable presumption (Some)
 Mere evidence of possible negligence.
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F.
G.
Proof of Negligence Precipitant
1.
Slip and Fall (Circumstantial v. Direct Evidence)
Looking at the circumstances and drawing inferences. Was the banana there
a long time? Should the defendant expect that spills would be frequent?
2.
Res Ipsa Loquitur (The Thing Speaks for Itself)
a)
To apply it:
 No direct evidence of D’s conduct.
 Harm doesn’t happen without negligence—general
knowledge or expert testimony.
 Situation in exclusive control of D. (Also an unconscious
patient on operating table.)
 Not the result of P’s conduct. (A contributory negligence
thing.
b)
Effect:
 Warrants inference of negligence.
 Presumption of negligence (D must shove it back to 50%)
 Presumption and burden shift. (D must prove with
preponderance that he didn’t do it.)
Causation
1.
But For test.
2.
Substantial Factor
An alternative test the court may use where there is some damage, but the
But For test doesn’t seem useful. If the defendant’s behavior was a
substantial factor in the end result, then there is some liability for that. Now
used in conjunction with But For—it is an “either or” situation.
3.
Proof of Causation (Daubert)
 Reliability of expert testimony: derived from scientific method,
accepted by community, peer review, can and has been tested,
potential error doesn’t invalidate, conclusions based on independent
and pre-existing research.
 Fit or Relevance: the testimony actually says something the court
cares about.
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4.
Concurrent Causes
There are joint and several liabilities in events where two separate acts of
negligence combine to create a result whether the actors were in concert or
acting independently. The substantial factor test would be useful here.
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H.
Joint and several: The car crashing into tractor trailer leaves either/or
trucker or driver responsible.
Joint and several: The two hunters, negligently shooting are both
responsible.
Market share liability: The drug industry with multiple manufacturers
can be nailed under a sort of enterprise theory, but only
proportionally, and only if they can’t prove definitively that their
product could not have been responsible.
Proximate Cause
Proximate cause is a policy-driven determination that limits the defendant from
liability for far-reaching and improbable results. The defendant is generally liable for
consequences which were reasonably foreseeable or stem from the consequences
that were reasonably foreseeable.
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
1.
Egg-shell plaintiff: If the defendant causes the car accident from negligence,
he/she liable for all injuries that stem from that. (The body-builder that went
nuts).
Palsgraf: Cardozo’s opinion v. Andrew’s opinion. Cardozo argues that the
defendant is liable only for actions that rise from a breach of duty to the
same person. Andrews wanted broader liability—a car accident driver is
responsible for what comes out of that accident, even if the results are
strange. Cardozo says that you must have the duty to that person.
Intervening/Superseding Causes
If defendant should have seen the possibility of the type of intervening cause,
or type of harm that could come, the defendant still has proximate cause.
With the gasoline train, they should foresee that gas spilling through a town
could get lit, but not foresee some delinquent deliberately lighting it up. But
if the train was also carrying convicted arsonists.
The superseding cause is the kind that isn’t foreseeable, is independent, and
far removed from defendant’s conduct. One isn’t bound to usually foresee
someone’s criminal act.
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I.
Instances of Limited Duty
1.
Failure to Act
Generally, a person is not liable for failing to act. For example, universities
have not duty to regulate the lives of their students.
2.
Duty to Rescue
Generally, a person has no duty to rescue.
a)
3.
Exceptions
 Business: must furnish warning and assistance to business
visitors. (The escalator)
 Person involved in causing injury. If person caused injury or
was an instrument under person’s control, they have a duty to
rescue.
 Person assumes duty and victim relies on that.
 Special relationships—innkeepers, boat captains, employers,
common carriers, etc.
Duty to Control Others or Warn Potential Victims
This happens if there is a special relationship—a doctor, person holding
custody, police officer, prison guard, etc. Factors that impose:
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Foreseeability and severity
Ability to exercise care and prevent
Interest and relationship between parties
Considerations of public policy.
Duty to warn others is like the Tarasoff murder where the psychiatrists knew.
4.
Pure Economic Loss
There must be a physical impact before the person can begin suing for
economic loss.
5.
Negligent Emotional Distress
There is no duty with regard to pure emotional disturbance.
a)
Physical Impact or Parasitic Rule
If D causes an actual physical impact, D is liable for emotional or
mental suffering that flows naturally from it.
b)
Physical Manifestation Rule
 D physically endangers P
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

6.
Negligent Emotional Distress for Bystanders.
a)
Zone of danger rule
Physical consequences + zone of danger.
b)
Dillon rule
Balancing test that abandons physical consequences.
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c)
7.
Does not result in physical impact
But does cause emotional distress that has physical
consequences. Generally, there must be actual physical
symptoms.
Physical proximity
Temporal proximity
Relational proximity
Seriousness of injury
Thing rule
Closely related to the victim, present at the scene, result is serious
emotional distress beyond that of normal distress.
Duties of Owners and Occupiers of Land
a)
Trespassers
Generally, a landowner owes no duty to a trespasser to make land
safe, to warn of danger, or to protect trespasser aside from refraining
from willfully injuring them, and attempting to warn or prevent once
they’ve discovered the presence of the trespasser or have reason to
believe that the trespasser is around.
(1)
Attractive Nuisance
The original rule dealt with attracting kids onto the property
with the attractive nuisance. Now, there are more demanding
conditions and it is called artificial conditions especially
hazardous to children.
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Know children are likely to trespass
Know thing poses unreasonable risk of death or
bodily harm.
Children won’t appreciate the risk.
B < PL
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
b)
Licensee
Has the owner’s consent but does not have a business purpose with
the owner. (social guest, etc.) The owner should warn of known
dangerous conditions, especially latent defects. Also should refrain
from causing problems.
c)
Invitee
Person who are invited by owner to conduct business with owner or
are invited as the public for purposes to which the land is held open
as the public. (Don’t have to be a paying customer.)

J.
After the above four which are duty, failure to
exercise reasonable care.
Duty to inspect, warn, and exercise control over third persons
on premises.
d)
Public Servants
You can make an argument for anything and squeeze them into
whatever category.
e)
Rejection of the categories
Some courts reject these categories and demand reasonable actions
under the circumstances.
Damages
Must have actual damages for negligence claims. Nominal claims don’t do the job.
There will be compensatory and punitive damages.
1.
Punitive Damages
 Degree of reprehensibility on defendant’s conduct.
 Disparity between actual and punitive damages—should be
determined by single digit multipliers.
 Difference between award and other past cases and civil
penalties.
2.
Compensatory Damages
Designed to put plaintiff back to where they were with money.
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Past physical and mental pain.
Future physical and mental pain.
Past, future medical expenses
Lost earning capacity
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
K.
Permanent disability and disfigurement
Defenses to Negligence
1.
Contributory Negligence
The plaintiff who contributes proximately to his injuries is totally barred
from recovery in negligent torts—not intentional torts. However, if the
defendant had the last clear chance, he can be put on the hook. Some courts
will say that negligence is super remote.
2.
Comparative Negligence
Divide liability between plaintiff and defendant along the relative degree of
fault. Pure comparative splits the percentage precisely. The modified
comparative says either not more than defendant or less than defendant.
Also slight/gross. Plaintiff’s negligence must be slight compared to
defendant’s negligence.
3.
Assumption of Risk
If P has voluntarily assumed risk, P is barred from recovery.
4.
a)
Express Waiver
 First, must be valid on face. Language is clear and the injury
falls within the boundaries.
 Second, contract must not violate public policy.
o No intentional, wanton tort.
o No grossly unequal bargaining power.
o Public interest—essential service, totality of
circumstances, no other way to get service, contract
of adhesion.
b)
Implied Assumption
 Voluntarily encounters risk.
 Knows risk and appreciates magnitude.
 The two elements shift based on each other.
Governmental Immunity
a)
Municipality
When acting as government, they are immune. When acting as a
proprietary interest, they are liable.
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b)
IV.
State, Federal Government
 Ministerial: where government is implementing standard
operating procedures they are liable for screw-ups.
 Discretionary: where policy is being furthered and
implemented, there is no liability.
No Fault Liability and Other Ways to Recover Moola
A.
Respondeat Superior
Applies to employees engaged in the scope of their employment, employed as
something more than independent contractors. Typically, commutes do not fall in
the scope of employment, though going home or going home impaired because of
employer’s actions can make employer liable.
1.
Frolic v. Detour
Employee may have a deviation. An employee’s frolic is not employer’s
responsibility, but a detour is. Weigh:



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
Intent
Nature, time, place
Time deviation sucked up
Work employee hired to do
Whether it was an incidental act expected by employer
Freedom allowed employee in job.
The employer can only be held liable for intentional torts if they fall within a
reasonable connection of the job.
B.
C.
Animals
1.
Strict Liability
Except for cats and dogs. Once the animal has bit someone, owner is on
notice and has strict liability for any other bites
2.
Fence In, Fence Out
3.
Wild Animals—Strict Liability
Abnormally Dangerous, Ultra-Hazardous Activities (Strict Liability!)
Person strictly liable for non-natural uses of their land absent plaintiff’s own
negligence or an act of God.

Existence of high-degree of risk
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
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

1.
Likelihood that resulting harm serious
Inability to eliminate risk by reasonable or great care
Extent that activity is uncommon
Inappropriateness of activity to place
Extent that value to community outweighed by danger
Historic Dangerous Activity
Blackburn: allow to escape, Cairns: non-natural (unusual, untypical use.)
Mostly superseded by Restatement factors
D.
V.
Limits on Strict Liability
 Damage must come from what makes activity dangerous
 Acts of God exempt
 Contributory negligence not a bar
 Assumption of risk does bar (full knowledge and voluntary)
Products Liability
A.
B.
Negligence
Privity
Privity
No privity
No privity
Non-feasance
Mis-feasance
Non-feasance
Misfeasance
Claim in contract
Claim in contracts and torts
No claim
Negligence claim in torts—
foreseeable end user injured
with negligently made
product—injury likely, no one
else is going to inspect or
further manufacture product.
Warranty
1.
Express
 Specific promise
 Justifiable reliance
 Privity not necessary in consumer world
2.
Implied
 Merchantability
 Specific purpose
 Physical injury not disclaimable
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
Privity not necessary
C.
Strict Liability
 Manufacturer puts on market
 Knows that used without inspection
 Defect in design, manufacturing, warning
 Human injury
 Used properly
 Plaintiff unaware
D.
Defenses to Product Liability
 Comparative negligence
 Assumption of Risk (partial bar only)
 Abnormal, unintended use (some misuse can be foreseeable though)
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