Torts
Torts, the goals of tort law and the theories of liability
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Tort- a civil wrong, other than breach of K, for which the law provides a remedy
Tort law: evaluating conduct to determine if there is liability
Damages- that which the P is seeking as a remedy; compensation for the value of the injury
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Goals of tort law:
o Deter conduct that tends to put others at an unreasonable risk of injury
o To compensate injuries
o Encourage social responsibility; we want people to be responsible for their acts
o Dispute resolution mechanism: provide a peaceful means for adjusting rights of people
who might otherwise “take the law into their own hands”
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Burden of proof: (2 separate burdens in tort law)
o Burden of argument: P must supply in complaint itself enough allegations from which it
can be concluded that P meets the elements of the cause of action
 Motion to dismiss: “P cannot meet this initial burden of proof”
o Burden of proof: Eventually P has to prove his case to the jury
 Brown v. Kendall (1850) – Chief Justice Shaw says the burden of proof is now on
the P
 Summary judgment- procedural mechanism that allows a party to say to the court,
“We don’t need a trial.” The case can be decided w/o a trial. If the case can be
judged summarily then there is no need for fact finding (no need for a jury)
3 theories of tort liability:
o 1) Theory of liability based on intent
o 2) Theory of liability based on unintentional conduct
 Negligence
 Brown v. Kendall (1850) – 1st time tort liability was based on unintentional conduct
o 3) Theory of liability based on strict liability
 Strict liability- liability w/o the need to prove fault
 Recognizing a cause of action even though the P cannot show intent or negligence
(Spano v. Perini)
 Abnormally dangerous activities
o * Plus: the law of bad luck
 When you’re out of luck; the law provides no remedy
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Damages
- Nominal damages- Consist of a small sum of money awarded to P to vindicate rights, make the
judgment available as a matter of record in order to prevent D from acquiring prescriptive rights,
and carry a part of the costs of the action. Amount of award, so long as it is trivial, is unimportant.
- Compensatory damages- Intended to represent the closest possible financial equivalent of the loss
or harm suffered by P, to make P whole again, to restore P to the position P was in before the tort
occurred.
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Punitive damages- Additional sum, over and above the compensation of P, awarded in order to
punish D, to make an example of D, and to deter D and others from engaging in similar tortuous
conduct.
“Special” vs. “general” damages: Lost earnings and medical and other expenses are treated as
special damages subject to objective measurement of the economic loss, while pain and suffering
and emotional distress are treated as general damages whose loss- although real- is fundamentally
non-economic.
Intentional torts (liability for damages caused by intentional conduct)
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Intent:
o Voluntary conduct w/ the purpose or desire to cause ‘x’…or:
o Voluntary conduct w/ knowledge to substantial certainty that conduct would cause ‘x’
(Garratt v. Dailey)
Transferred intent- If the P can prove that the D acted voluntarily w/ the purpose or desire to cause
(battery, assault, false imprisonment, trespass to land, or trespass to chattels), but committed one
of these 5 original trespass torts on someone else, then the element of intent may transfer
(Talmage v. Smith)
Vicarious liability- recognizes the possibility of someone being liable for the conduct of somebody
else (i.e., employer being held liable for employee’s conduct occurring w/in scope of employment)
Damages resulting from intentional harm:
o Nominal damages may be awarded even if P cannot show actual harm
o Punitive damages may be awarded if the D’s conduct was outrageous or malicious (never
awarded for negligence)
Elements for intentional tort causes of action
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Intent, causation, and injury are elements of all intentional tort causes of action
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Battery- intentional harmful or offensive bodily contact
o Injury may be emotional (Fischer), not necessarily physical
o Contact may be w/ an object, if the object is so intimately connected w/ one’s body as to be
universally regarded as part of the person (plate in Fischer)
o D need not touch the P w/ his own body, but something under his control
o P need not be aware of the contact at the time that it occurs
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Assault- intentional conduct that causes a well-founded (or reasonable) apprehension of an
imminent battery, w/ the apparent ability to do it (from the P’s perspective)
o The P’s apprehension of the battery must be reasonable (i.e., real potential for harm)
(Western Union)
o Intent to cause apprehension of a battery, not necessarily intent to harm
o P must be aware of the threatened contact
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Intentional infliction of emotional distress- intentional or reckless conduct; conduct is extreme or
outrageous; causation; emotional distress must be severe
o Extreme or outrageous: i.e., whether the conduct is intolerable in civilized society
o Causation: between the conduct and the (severe) emotional distress
o There is no longer a requirement that there be a physical manifestation of the emotional
distress
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False imprisonment- imprisonment; intent; causation; injury
o Imprisonment- P must show he was confined; P was not free to leave; P did not have a
reasonable avenue of escape
o Injury- may be physical and/or emotional
 If emotional- P must show consciousness of confinement (Parvi)
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False arrest- the D arrests the P w/ the claim of authority of law which they do not in fact have
o It’s really just another type of false imprisonment claim
o P is deprived of their liberty w/o justification
o I.e., P being arrested for something else than what the P was convicted of (Engright)
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Trespass to chattels- the D intentionally intermeddles with a chattel which is in possession of the
P; causes damages
o Ways to prove damage (Restatement 2nd)
 The chattel is impaired as to its condition, quality or value
 The possessor is deprived of the use of the chattel for a substantial time
 Bodily harm is thereby caused to the possessor or harm is caused to some person or
thing in which the possessor has a legally protected interest
o The P must be aware that the chattel is being used w/o their authorization
o Important consideration- whether the chattel is returned and available to the P when the P
goes to use it
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Conversion- the intentional exercise of dominion or control over a chattel which so seriously
interferes with the right of the P to control it that the D may justly be required to pay the P the full
value of the chattel.
o Greater degree of interference with the property right than for trespass to chattels
o Interference is of such a degree that the court will provide a greater remedy for it: full
market value of the chattel at the time the chattel was converted
 Not sentimental value or use value
o Basically the D having to buy the P’s item
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Trespass to land
o Intentional interference with the P’s property right; causation; injury
o An injury is shown by merely showing that there was an interference
 If there was an interference- then there is an injury
o Any intentional, unauthorized entry on land would give rise to a cause of action for
trespass to land.
Privileges in cases of intentional conduct
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Privilege- a defense that will be raised by the D in cases of intentional torts
o Those arguments that can be made by the D in response to the P’s allegations, but that
those arguments are not attacking the sufficiency of any of any of the elements of the cause
of action
o May or may not have the effect of getting a motion to dismiss
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Consent- the D claims they had the right to do that which the P is now complaining about, and this
right comes from the P’s consent
o Where the privilege of consent is successful, the D will win a motion to dismiss for an
intentional tort
o Can be either express or implied (implied by the P or implied by law)
 Implied consent where a doctor must treat an unconscious patient during an
emergency situation (Mohr)
o Consent can expire; consent can be limited (i.e., by an expression of a time limit, or limited
in scope)
o Consent must be valid (De May v. Roberts- invalid consent to assistance during birth was
obtained, based on false pretenses, misrepresentation, etc.)
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Self-defense- must be reasonable, and must be in response to an immediate threat
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Defense of property- there is a privilege to defend property, but the conduct must be reasonable
o Can never be mortal force (Katko); cannot kill someone to defend property
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Necessity- privilege that allows the D to engage in conduct that results in injury to another’s
property for the purpose of protecting another person’s property
o If conduct involves protecting private property- private necessity
 D can protect his property by causing damage to another’s property, but the D will
have to pay compensation
o If conduct involves protecting public property- public necessity
 D will not have to pay for damages from their conduct
Negligence (liability for damages caused by unintentional conduct)
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Brown v. Kendall (1850 Massachusetts case) Chief Justice Shaw divides the tort law world into 2
theories of liability: intentional conduct and unintentional conduct
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The question of negligence is different from the question of liability
Negligence- acting unlike a reasonable person would under the circumstances
The jury evaluates the D’s conduct by comparing it to what a RPP would have done under the
circumstances (Brown v. Kendall)
5 elements of the cause of action for negligence: (1) duty, (2) breach of duty, (3) cause in fact, (4)
proximate cause, (5) damages
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Duty
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Duty- the obligation to act reasonably
o “Reasonable” – how a RPP would act under similar circumstances
o A RPP would never put another person at an unreasonable risk of injury.
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o If a certain conduct puts others at an unreasonable risk of harm, there should be a duty not
to do it.
Factors to consider when determining whether a duty should be imposed on the D to act in a
certain way: (whether goals of tort law are advanced by doing so)
o (1) Cost benefit analysis- cost of imposing a duty vs. benefit of not recognizing a duty
o (2) Policy issues- any other values or concerns (societal consequences) that would be
affected if we recognize a duty
o (3) Fairness- whether it would be fair to recognize a duty (Cohen- court says it would be
unfair to recognize a duty where the driver passed out but had no prior notice)
Breach of duty- D’s conduct fails to meet that which is expected of the D under the circumstances
(D fails to act as a RPP under the circumstances)
o The standard of care is objective, not subjective (Vaughan v. Menlove)
o The standard of care (usually) does not change from case to case. You must take into
account the circumstances (Cordas v. Peerless Transportation Co.). But in certain cases
the standard will be expressed differently.
The standard of care in special cases
- Physical disability
o Courts typically take a physical disability into account, and express the standard of care
differently than usual
o I.e., “What the RPP would do if the RPP were blind” (Roberts v. Louisiana)
- Mental disability
o Courts usually will not express the standard of care differently than usual in cases of
mental disability
o Courts usually express the standard as “What a RPP would do under the circumstances”
o Exception- certain cases of mental disability which are analogous to those w/ sudden,
unexpected physical disability (i.e., seizures)
 “What the RPP would do if the RPP had a sudden attack of insanity”
- Children
o Courts merely require a child to act as a RPP of the same age, intelligence, and experience
o Exception- where a child engages in an inherently dangerous activity, he is held to the
standard of an adult; a RPP under the circumstances (Robinson v. Lindsay, snowmobiles)
Arguing what the RPP would have done under the circumstances (sources of the standard of care)
- Rules of law
o A court that rules over your jurisdiction has already decided the standard of conduct in a
case w/ exactly the same circumstances to your case (very rarely available; courts rarely
say that a certain conduct is always negligent/breach of duty; circumstances change)
o Pokora- getting out of the car and looking for an oncoming train
- Common knowledge
o A P can base his argument on what a RPP would have done under the circumstances (duty)
on common knowledge
o For a P to base this argument on common knowledge, the P must convince the jury that
everybody should know
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o Delair v. McAdoo- P argued that everybody should know of the condition of their tires, and
everybody should know that driving on worn out tires puts others at unreasonable risks of
harm
Custom
o P can argue what the RPP would have done under the circumstances based on a custom, as
long as it is a custom, the custom is reasonable, and the custom applies
o Trimarco v. Kelin- P argued the D had a duty to act in accord w/ the custom among
landlords, and it was customary practice for landlords to replace old glass w/ safer glass
o Ways D can respond to P’s argument for duty based on a custom: (1) there is no custom,
(2) there is a custom but it does not apply to the D’s conduct, (3) there is a different
custom, (4) under these circumstances we should not allow the P to base his argument for
recognizing a duty on custom because the costs of doing so outweigh the benefits
Violation of a statute or regulation
o In the vast majority of cases, the violation of a statute is not appropriate to show breach of
duty (not every statute is appropriate to express a duty in tort law)
o Factors that courts consider when deciding whether to base the standard of care (duty) on
the text of a statute: (1) statute must relate to conduct, (2) statute has to relate to
minimizing risks of injury, (3) whether P is among the category of people that the statute
was designed to protect from injury, (4) whether P’s injury is of the kind the statute was
intended to prevent, whether the statute clearly defines the required or prohibited conduct,
(5) whether it would impose ruinous liability disproportionate to the seriousness of D’s
conduct (fairness), (6) whether injury resulted directly or indirectly from violation of the
statute
o Ways the violation of a statute may be treated procedurally: negligence per se, negligence
as a rebuttable presumption, evidence of negligence
o The P must show, not only that D’s conduct violated the statute, but that it was an
unreasonable violation of the statute
 Sometimes, given the circumstances, violating the statute may be necessary to
avoid unreasonable risks of harm.
 Sometimes the RPP violates the law.
Is there a (limited) duty to help others?
o At common law there is generally no duty to help others.
o Hypo: You walk down by Lake Michigan and see someone drowning, and do nothing to
help. They suffer an injury because you failed to help. That person cannot sue you. No
duty to help.
o Exceptions to the doctrine of no duty to help:
 Where the D was the cause of the injury
 Hypo: conduct that creates the need for help by pushing someone into the
lake (D has a duty to help), vs. conduct that creates the need for help by
taunting someone to jump into the lake (D has no duty to help)
o Whether the P had the choice to do it
o If the P had the choice to do it, then D has no duty to help.
o If P can make a case that he was reliant on D to make a decision
(i.e., P is a young child), then taunting P is basically the same as
pushing P in the lake.
 Where the D starts to help someone and then stops helping
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Once the D starts to help some, the D has imposed a duty upon himself to
continue to help.
 Hypo: A university puts a guard n duty to help women walk a dark area of
campus at night. The university has imposed a duty upon itself to help the
women walk in a manner that is not negligent.
 Hypo: “I’m going to help you!...Ah, the hell w/ it.” You have imposed a
duty upon yourself.
 Hypo: Jumping in a lake, failing to rescue a drowning person, and then
leaving the lake. D has a strong argument that he did not breach a duty
(failed to rescue, but still tried to help to the best that he could)
 Hypo: D assumes the duty to help but does so negligently. P can try to
make a case for that.
Special relationships
 In certain cases the parties may have a special relationship between them
such that the law recognizes that the nature of the relationship imposes on
the D a duty to help.
 L.S. Ayres case- invitor-invitee relationship: the court held that a store has a
duty to help customers who injure themselves while in the store and injured
by an instrumentality under the D’s control (escalator).
o When does the store-customer relationship begin? Does it extend to
the parking lot? Does it occur if the customer doesn’t buy anything?
(arguments to be made both ways)
The standard of care in cases of professionals
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In general
o The standard of care may change in the case of a professional whose conduct occurs in the
exercise of the profession (the standard will not change for an attorney driving a car)
 But the standard must remain objective (Heath v. Swift Wings; court instructed jury
to compare conduct of D to conduct of D; subjective standard)
o A professional has specific training and education; possesses certain skills and knowledge;
often a certification process
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Sources of the standard of care for cases of professionals
o Custom- This is the source that will be most often relevant for duty in cases of professional
conduct.
 The standard comes from the profession itself; very unique that a group of potential
D’s would be the source of the duty that should be applied to them
 Procedural consequence of the standard of care for professionals being distinct
from the standard of care for non-professionals: P will have to use expert testimony
to testify to the professional standard of care.
o Cannot use common knowledge. What the professional does is not common knowledge.
 Exception: There may be certain circumstances where the jury can use common
knowledge to determine whether a doctor was negligent (i.e., doctor leaves a pair of
scissors or gauze inside the P’s body; everyone knows you shouldn’t do it)
o Statutes- Nothing inherently objectionable to using a statute for the professional standard
of care, but still very rarely will a statute work for this purpose
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Licensing statute- a statute requiring that to be a certain professional you must be
licensed
 Licensing statutes cannot be used because they do not clearly define
conduct that would be required under particular circumstances.
 The fact that someone practices medicine (or drives a car) w/o a license
does by itself create an unreasonable risk of harm.
o Professional responsibility laws- to regulate the practice of the profession of law
 Most states expressly say that rules of professional responsibility in statutes do not
create duties in tort law, but courts ignore this. If the circumstances are such that a
rule would apply to a case, courts in certain cases ignore the very text of the rules
and use them as expressions of duty in tort law.
 Many rules of professional conduct are not specific enough or phrased in a
way that is based on discretion (lawyer “may do x” instead of lawyer “must
do x”). This operates against using the rule as an expression of duty.
o It’s not unusual in general for a court to recognize a duty which will then presumably have
an effect on the conduct of those who are affected by that decision, but it’s not common in
professional liability cases, particularly in the absence of expert evidence
 Rare case: P saw an optometrist for an eye exam; doctor did not test for glaucoma;
standard in field was to test people 40 yrs and older, P was 38; P got glaucoma and
became blind. The court recognized a duty w/o expert evidence (easy test to
administer, inexpensive test, cost-benefit analysis in favor of P)
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Cause of action for attorney malpractice
o Legal malpractice- cause of action based on negligence of a member of the legal profession
o An attorney should possess the requisite degree of knowledge, skill, and ability in order to
practice in the legal profession. The lawyer must act reasonably, and the lawyer must
know certain things: must possess certain knowledge, skill, and ability (If lawyer doesn’t
know certain things, lawyer is negligent)
o P can argue: (1) The D didn’t know the rule, and (2) Even if D knew the rule, he did not
follow the rule; failed to act as a RPP under the circumstances (Hodges v. Carter- attorney
failed to correctly deliver summons)
o D can respond in any of the ways it can respond to a custom in general, arguing in the
alternative:
 There is no custom. If there is a custom, it does not apply. If it applies, the custom
is unreasonable. If the custom is reasonable, the D followed the custom. If the D
didn’t follow the custom, the D was reasonable in not following it.
o Causation: P must show the jury that she would have recovered in the original case, and
what she would have recovered in the original case.
 What is lost is the value of the original case (different from the value of having the
chance to try the case)
 For P to show cause in fact in a case of legal malpractice, P must show that she
would have won the original case (not that she would have had the chance to win
the case).
 Trying the case to see if P would have recovered
 In a criminal D case, that person must show he would not have been convicted had
it not been for the attorney’s negligence. (some courts require the person to show
he was innocent)
o Courts disagree as to whether the standard of care for attorneys should be national or local
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Cause of action for medical malpractice
o Medical malpractice- cause of action based on negligence of a member of the medical
profession
o Morrison v. MacNamara- court adopted a national standard of care applying to the medical
profession instead of a local standard of care (national custom over local custom)
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Cause of action for lack of informed consent
o There is a medical malpractice cause of action based on the theory of lack of informed
consent.
o Doctors have a duty to allow patients to make an informed decision; duty to provide
patients enough information so that their consent may be informed (protects the P’s right to
choose what risks to take)
o The doctor must disclose all material risks to the patient. Material risks are those risks that
may affect the patient’s decision of whether or not to go through w/ the procedure.
 Doctor may have a duty to disclose information that is outside the scope of the
actual procedure itself (i.e., research & economic interests that may affect the
doctor’s professional judgment)
 Moore v. Regents of Univ. of Cal.- the doctor must disclose research &
economic interests where this information would be material to the patient’s
decision
o Duty in a cause of action for lack of informed consent:
 Majority view- whether a RP patient would have wanted to know the information
(objective standard)
 Minority view- whether the P (the patient himself) would have wanted to know the
information (subjective standard; Scott v. Bradford)
o Cause in fact in a cause of action for lack of informed consent:
 Some courts: whether the lack of informed consent would have affected the
decision of a RPP; a RPP, if properly informed, would not have undergone the
procedure
 Other courts: whether the lack of informed consent would have affected the
decision of the P (Scott v. Bradford); the P, if properly informed, would not have
undergone the procedure
o Exceptions creating a privilege for doctor not to disclose: (1) where disclosure would be
detrimental to the patient (very hard argument to make), (2) where the patient already
knew the risk, (3) where the risk should be known by everyone, (4) where there is an
emergency and the patient cannot consent
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Cause of action for failure to act
o Generally there is no duty to help others, but there are some exceptions.
o Good Samaritan statutes- created to encourage people to help under certain circumstances
 Gives immunity to certain people from harm caused in trying to help (usually
medical professionals in emergency situations)
 These statutes so worded do not create a duty to help. They just protect certain
people who do help under certain circumstances.
o A psychotherapist has a duty to take reasonable steps to protect a 3rd party where the
therapist determines or, based on applicable professional standards, should determine that
his patient presents a serious risk of physical harm to that 3rd party. (Tarasoff v. Regents of
Univ. of Cal.)
 Arguments against recognizing a duty: psychotherapists have considerable
difficulty determining the validity of patients’ threats to harm others; importance of
confidentiality of the psychotherapist-patient relationship
 Most courts have adopted Tarasoff, w/ differences in application.
 Some hold the duty to warn extends only to readily identifiable victims.
 Others hold the duty to warn extends to all foreseeable victims.
Proof of negligence: proving the argument of breach of duty
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There is s difference between admissibility of evidence and the probative value (or evidentiary
value) of evidence (strength or weakness of evidence)
Whatever has to be proved, it must be proved by a preponderance of the evidence
Types of evidence (relates to what the evidence is trying to do; not probative value)
- Direct evidence- a piece of evidence that proves itself
o Evidence of a fact in order to prove that same fact
- Circumstantial evidence- evidence that seeks to prove some other evidence
o I.e., trying to prove a fact in order to have the jury infer that a different fact is true
Methods of presenting evidence
- Physical evidence- presenting the object itself
o May be direct or circumstantial
- Testimonial evidence- someone testifies to something that they have the ability to testify to
o 2 kinds of witnesses:
 Expert witnesses- allowed to testify to something that factual witness cannot
 Expert opinions
 Experts can testify as to their opinions in response to lawyers’ hypos
 Layperson (lay) witnesses- can only testify as to facts
 Cannot testify as to their opinions in response to lawyers’ hypos
- Demonstrative evidence- seeking to demonstrate a point (i.e., using a chart or map)
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Burden is on P to prove all elements of the cause of action; must use these categories of evidence
to prove what P needs to prove (“You have to know where you’re going to know how to get
there”)
Expert testimony
- P in a malpractice case will (usually) have to use an expert to support an argument of duty and
breach.
o Could also argue common knowledge of breach of professional standard of care (e.g.,
gauze left inside a surgery patient)
- If a P needs to prove that there was a custom (duty) in the medical profession, the expert must
testify as to the custom of the profession at the relevant time
o Boyce v. Brown- should not merely testify to what he himself would have done
Res ipsa loquitur
- In very rare cases, P can support a claim for negligence w/o evidence of the D’s conduct but w/
evidence of the accident itself occurring.
o Proving breach of duty w/o evidence of D’s conduct
o It’s a very rare case where a court will allow P to support a claim under res ipsa loquitur
- Res ipsa loquitur (“the thing speaks for itself”) - the accident itself is evidence of D’s negligent
conduct (Byrne v. Boadle)
o Res ipsa loquitur is a form of circumstantial evidence (asking jury to infer that someone
was negligent, and that someone was probably the D)
o Can allow P to survive a MTD and to get jury to infer negligence
- 2 conditions: P can establish breach of duty by proving that the accident actually happened, if and
only if (1) the instrumentality causing injury was under the exclusive control of the D at the time
the negligent conduct (not the accident) occurred, and (2) normally the accident would not occur
absent somebody’s negligence (and that someone is probably the D)
o Ex.- Bartender gives guy a beer bottle, he opens it and it explodes, causing injury: D will
argue he was not in exclusive control of the bottle at the time the negligent conduct
occurred.
- 3 possible procedural effects of res ipsa loquitur:
o (1) Permissible inference of negligence- It warrants an inference of negligence which the
jury may draw or not draw
 (Most jurisdictions)
o (2) Presumption of negligence- It raises a presumption of negligence which requires the
jury to find negligence if D does not produce sufficient evidence to rebut the presumption
 D may be successful w/o proving that his conduct was not negligent (by showing
that P could not prove D was negligent)
o (3) It not only raises a presumption but also shifts the burden of proof to D and requires D
to prove that the injury was not caused by his negligence
 D must prove that his conduct was not negligent
- Ybarra v. Spangard- Court applied res ipsa loquitur to allow P to support a claim absent evidence
of not only conduct, but also of who the actor was (not adopted by many other courts, and even
where adopted, very limited to surgical circumstances very similar to this case)
Cause in fact
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Cause in fact- the causal connection (cause & effect) between D’s conduct & P’s injury
P must meet his initial burden of proof (burden of argument) by arguing the case w/ the language
of the ‘but for’ test or the ‘substantial factor’ test
o ‘But for’ test- But for the D’s negligent conduct, the P’s injury would not have occurred
o ‘Substantial factor’ test- D’s negligent conduct was a substantial factor contributing to the
P’s injury.
o P must have sufficient evidence from which reasonable people could disagree as to
whether D’s conduct contributed to P’s injury.
 If reasonable people cannot disagree- D wins MTD
P must prove cause in fact (2nd burden of proof)- must prove to jury that D’s conduct caused P’s
injury (using ‘but for’ or ‘substantial factor’ test)
o If D can support the conclusion that the injury would have (not merely could have)
occurred anyway, D wins
o Gentry v. Douglas Hereford Ranch- Montana rifle P had no evidence to support the
argument that it was the D’s conduct that caused the injury (could not prove how he
tripped); P could not meet 2nd burden of proof
o P must prove by a preponderance of the evidence that D’s conduct caused P’s injury
 More likely than not, D’s conduct greatly increased the risk that P would be injured
 P must prove a probability- more likely than not D’s conduct caused the injury
 Proving that D possibly caused P’s injury (i.e., 1 in 100 chance) is not
enough
Cause in fact in cases of concurrent causes
- There can be more than one cause. The fact that others were negligent does not absolve another
negligent D from liability (Hill v. Edmonds)
- Cases of 2 causes (2 D’s) contributing to an accident:
o Creates a conceptual problem. Sometimes 2 negligent actors may be able to individually
argue that the accident would have occurred anyway, but the result would be unfair
 Midas hypo- the shop negligently fails to fix brakes and driver negligently fails to
pay attention to the road, striking a pedestrian (2 causes, both negligent)
 Anderson case- fire case w/ 2 causes (1 negligent, 1 presumably not
negligent)
 The analysis is the same here, even though in one case both causes are
negligent and in the other case only one of the two causes is negligent
 Some courts get around this by emphasizing the ‘substantial factor’ test instead of
the ‘but for’ test
 Also, P can support cause in fact if D’s were “acting in concert”
 There is a loophole in these cases. Courts must decide whether they will apply the
concept strictly or close the loophole, using ‘substantial factor’ language
 Anderson case- the court circumvents the strict analysis of the cause in fact
analysis, applying the ‘but for’ test
 (pretty rare cases)
- Summers v. Tice- P could prove that both D’s were negligent and that one of the 2 caused P’s
injury, but had no evidence to prove which one of the D’s was the cause
o The court shifts the burden of proof to the D’s - each D has the burden of proving that he
was not the actor causing the damage
o The court allows the burden of roof to shift to the D where:
 (1) All the possible actors were named as a D;
 (2) All of the actors engaged in negligent conduct; and
 (3) One of the D’s had to be the cause
o (very rare type of case; allowing P to support an argument even though P does not have
sufficient evidence to prove it; similar to res ipsa loquitur for meeting element of breach of
duty)
- Sindell v. Abbott Laboratories- P is daughter of woman who ingested DES while pregnant w/ P,
causing P cancer many years later; court applies market share liability
o Market share liability- the court will apportion liability on the D’s according to the D’s
share of the market for that product
 If company A produced 3 times the market share of the product than company B,
then there is a 3 times more likely chance that the product injuring P was produced
by company A than by company B
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


Instead of requiring P to prove that D caused the injury, P must prove the chances
that D caused the injury.
If D can prove D could not possibly have caused P’s injury, then D is not liable
The court is using the market share to prove both cause in fact and damages
(market share liability is not a useful tool for P’s to use in arguing cause in fact;
was only used in DES cases and lead paint cases for a while, but courts have done
away w/ it today)
Proximate cause (legal cause)
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To satisfy proximate cause, P must show that the P’s injury is a foreseeable consequence of the
risk created by the D’s negligent conduct.
Proximate cause is a question of fact for the jury.
Proximate cause is a way to draw the line and not allow the reach of liability to extend forever.
Ex.- A keeps a lighted gas flame next to a gas outlet.
o An explosion is a foreseeable consequence of the risk created by D’s negligent conduct
o A rat walks by the flame, ignites and then walks into the outlet, causing an explosion
 Still a foreseeable consequence of the risk created by D’s negligent conduct
Originally: Direct Causation (directly traceable (?))
o Any harm that may be said to have directly resulted from D’s negligence no matter how
unforeseeable or unlikely.
o In re Polemis: Because dropping a plank of wood that ignited a spark directly cause the
ship to burn there is liability.
o Criticized for resulting in limitless liability
 Ex. Court refused to apply direct causation where the negligent operation of a train
engine sets fire to a woodshed. (Ryan v. NYCentral RR)
Forseeability/Scope of Risk:
o Liable for results that are of the same general sort that made D’s conduct negligent in the
first place.
o Only liable for consequences that were reasonably foreseeable at the time.(Wagon Mound
Case)
o Unforeseen Plaintiff Problem:
 D is negligent towards X but P is also injured – is he liable?
 Palsgraf case: Majority
 Although the train employee may have been negligent towards the
passenger by pushing him onto the train, his conduct did not involve any
foreseeable risk to the P.
 Proof of negligence in the air will not do.
o Did D have a duty of care towards the specific P?
 Palsgraf case: Dissent
 Every member of society bears a burden of due care to protect society from
unreasonable risks
 Determining whether consequences are too remote:
o Natural and continuous sequence between cause and effect?
o Direct connection without too many intervening causes?
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Cardozo’s theory of proximate cause- “the logical way to look at it” (Palsgraf)
o Finding a logical way to determine where to draw the line, which will determine whether a
claim is included in the possible reach of liability, or excluded
o Whether the injury is a foreseeable consequence of the negligent conduct: this is a view
that is used today
Also dissenter Andrew’s opinion: (part of his opinion is also used today)
o Andrew’s view: allows the jury to decide whether it was foreseeable
o This is who decides the question today: it is a question of fact for the jury
 In rare cases, the D may be able to successfully win a motion to dismiss that an
injury was not foreseeable
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3 bases on which D will not be able to defeat a claim by arguing that something is unforeseeable:
o (1) The specific identity of the P
o (2) The specific manner in which the accident occurs
 As long as what occurred is not so incredibly bizarre that it was not possibly
foreseeable, then the specific manner in which the accident occurs is irrelevant
o (3) The extent of the injury itself
 Eggshell skull (thin skull) theory- If you hit someone w/ really a really fragile skull,
you may hurt them much more easily than other people. It is no defense to say that
you didn’t know.
 Ex.- D causes car accident that aggravates P’s paranoid schizophrenia: D is
liable.
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Ayers v. Johnson & Johnson- Everything in the case was foreseeable. The baby oil was meant for
babies. It is foreseeable that a baby could inhale the baby oil, because babies put things in their
mouths.
Intervening cause
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Intervening cause- happens sometime after and independent of D’s negligent conduct and before
P’s injury, and has the effect of a cause in fact
o If the intervening cause was an unforeseeable consequence of the risk created by the D’s
negligent conduct, then the act may be a superseding cause that breaks the causal
connection between D’s negligent conduct and P’s injury
 A superseding cause defeats P’s claim on the element of proximate cause
What determines whether an event is foreseeable is past experience
- Acts of nature- may or may not have effect of a superseding cause (key is past experience)
o D fails to tie his bike to a post outside JMLS, and a strong wind lifts up the bike and it hits
someone. (a strong wind in Chicago is a foreseeable event; a tornado is pretty
unforeseeable)
- Criminal conduct- may or may not have effect of a superseding cause (look at past experience)
o Driver leaves keys in the car while running into 7-11 and someone steals it and runs over a
pedestrian.
o It may be argued that the stealing of a car is unforeseeable, or foreseeable (i.e., rural area
vs. inner city)
o Watson v. Kentucky (1910)- court says criminal conduct is not foreseeable, and therefore is
a superseding cause per se (doesn’t make much sense; now we look at past experience)
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 “Criminal conduct is foreseeable if it is foreseeable”
o September 11 case- court would not allow D’s argument that terrorist activity in the US
was unforeseeable
Rescuers (conduct of a person who is trying to help someone else) – may or may not have effect of
a superseding cause (depends on circumstances; reasonableness)
o The rescue attempt must be reasonable. If it’s not reasonable, then it’s not foreseeable that
someone would attempt it (“Danger invites rescue” is not always true)
o Wagner case- D railroad argued that the conduct of the P rescuer was not foreseeablesuperseding cause. Too much time passed; rescuer should have made a logical judgment
to stop looking for his cousin during that time; a reasonable person in his position, w/ that
much time to think about it, would have realized the danger and stopped looking.
o 2 types of scenarios in rescue cases: P is the person injured originally and rescuer causes an
injury, or P is the rescuer and is injured
 In either case, D may argue that rescuer’s conduct was unforeseeable.
Suicide
o Courts tend to favor the position that suicide is unforeseeable as a matter of law.
o But there seem to be strong arguments to go against this position. Why not treat it like
criminal conduct (may or may not be foreseeable)?
o Fuller v. Price- a rare exception to the general rule that suicide is unforeseeable
o Support for unforeseeability- We have a natural instinct to survive. If we were to think
about it, we would decide not to commit suicide.
o Support fore foreseeability- Empirical evidence- It happens all the time! And certain
mental conditions, etc. may give rise to foreseeability as well.
Limited duties of care (limits to causes of action even if injury is foreseeable)
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To limit the possible reach of liability: can use an analysis of proximate cause or duty
Sometimes the P can establish the prima facie case, but we still feel P’s claim is one for which the
courts should not recognize a remedy (i.e., for public policy reasons)
Liability of social hosts for drunk driving accidents
- Kelly v. Gwinell- NJ is in the small minority, imposing a duty on social hosts in cases of drunk
driving accidents; using tort law as a deterrent to combat the serious problem of drunk driving.
o Dissent (and all other jurisdictions) – Social hosts are distinguishable from commercial
vendors (social hosts aren’t trained to know when someone is drunk, are in very different
financial positions than commercial vendors; and we don’t want socializing to come to an
end) Imposing a duty here on social hosts is unfair.
- Courts use a risk-benefit analysis to determine whether there should be a duty.
- All jurisdictions have dram shop acts. A dram shop act imposes a duty and allows P’s to recover
for alcohol-related injuries under certain circumstances.
- Commercial establishments that allow people to bring alcohol but don’t sell alcohol: fall in
between commercial vendors w/ liquor licenses and social hosts.
Negligent infliction of emotional distress
- Cases here compensation is requested for emotional distress alone; the emotional distress itself is
the injury in the cause of action
o “Pain and suffering” – goes along w/ a cause of action for a physical injury
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Cause of action for NIED occurring due to something that happened to P herself:
o Courts are concerned w/ the possibility of imaginary claims in cases of emotional injury
 Used to require ‘physical impact,’ but times have changed (development of
psychology, etc.)
 Most jurisdictions say: For a claim for NIED, there must be a definite and physical
injury that results from the emotional distress (does not have to be the result of
physical impact)
 P must have a physical manifestation of the emotional distress (i.e., losing
weights, losing sleep, tremors)
Cause of action for NIED for a bystander
o Originally there was no claim (due to impact rule); then came the zone of danger rule (P
must be w/in the zone of danger); criticized as unfair and arbitrary
o Thing v. La Chusa (California) - A foreseeability test is applied to cases of NIED of a
bystander- Emotional distress must be reasonably foreseeable; Limited by 3 factors:
 (1) P must be closely related to the injured victim;
 (2) P must be present at the scene of the injury-producing event at the time it occurs
and must then e aware that it is causing injury to the victim (sufficient to hear it and
be aware of it w/o seeing it); and
 (3) As a result P must suffer serious emotional distress—a reaction beyond that
which would be anticipated in a disinterested witness and which is not an abnormal
response to the circumstances.
o In most jurisdictions, bystander NIED is limited to people who are w/in the zone of danger
Pre-natal torts
- Pre-natal tort- the point in time in which P’s injury occurs is pre-natal (before birth)
- Cause of action for wrongful death of a stillborn fetus
o Endresz v. Friedberg (1969)- The court will not recognize this cause of action, even if P
can establish the prima facie case (no duty). To be death there must be life. A person does
not have its own separate judicial existence from mother until umbilical cord is cut. No
life, so no death. No duty.
o Most jurisdictions say- A person has its own separate judicial existence at the point of
viability; when the baby could survive outside the mother if it were born then (even w/ the
proof problems that this presents)
o A few jurisdictions go back as far as conception.
- Cause of action for impaired childhood- Parents were not prepared to give birth to a defective
child because the doctor did not tell them that they had any reason to expect a defective child
(negligence). Parents claim that because they were not prepared for these circumstances, parents
are not as good parents as they should be. Child claims that he does not have as good a childhood
as he should have, due to D’s negligence (has lost love, affection, etc.)
o Public policy- It is a dangerous proposition to use the tort law system to allow children to
complain about the parenting they are receiving.
o Procanik by Procanik v. Cillo- Court will not recognize a claim for impaired childhood.
- 2 pre-natal tort claims where basis of the claim itself is the same:
o Cause of action for wrongful birth- Claim filed by parents; But for D’s negligent conduct,
P’s would have had the chance to terminate the pregnancy.
o Cause of action for wrongful life- Claim filed by child; But for D’s negligent conduct, P
would not have been born. (life itself is the injury)
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Procanik case- Court will not recognize a claim for wrongful life
 Too difficult to determine the value of damage; no rational way to compare
non-existence to the pain & suffering of an impaired existence
 Court will not allow a child to recover a value for having been born
 Public policy- Our society values life to non-life. Even extremely impaired
life is better than no life at all.
 Not one US court has recognized a claim for wrongful life
Procanik case: The court allows the child to recover for extraordinary (not ordinary, i.e., general
healthcare, regular costs of raising a child) expenses; expenses incurred due to the special needs
(e.g., wheelchair, special clothing, therapy)
o Allowing P to recover for special damages- to be determined in definite & measurable
ways
o These expenses can be recovered until the child reaches majority.
Cause of action for wrongful conception- Parents decide that they do not want any children, and
they undergo a procedure to prevent future pregnancies. Due to the doctor’s negligence they end
up getting pregnant and have a healthy child.
o May be able to argue that parents should recover ordinary expenses of raising the child
o D could argue that there is a superseding cause (defeating proximate cause): It is
unforeseeable that parents who do not wish to have a child would not have an abortion.
 But courts will reject this argument every time, even though it is logically valid.
Courts will not fault parents for the personal decision of not having an abortion.
o D could argue that the child will think the parents do not like him (anti-therapeutic
message)
o Courts are more comfortable allowing wrongful conception claims—allowing parents to
recover ordinary expenses of raising children—than wrongful life claims (less emotional).
Courts generally accept wrongful conception claims.
 Jurisdictions recognizing this cause of action generally agree that expenses include
the expenses of the procedure and the pregnancy; ordinary expenses of raising the
child and extraordinary damages are debatable.
 Some courts award a little bit less than the value of the injury claimed; because
parents get value out of just being a parent (love & affection)
Limits to causes of action imposed by statute
- Most of tort law is typically common law, but statutes are just as relevant to torts as common law
- Rule #1 of statutory interpretation: “Read the damn statute!”
Cause of action for wrongful death
- Wrongful death- P is making a claim to recover for their own injury
o Wrongful death is for the survivor. The death occurs before the claim.
- All jurisdictions have adopted wrongful death claims, most by statute
- Wrongful death statute- recognizes a right to a cause of action, but that right is limited by the
terms of the statute
- 3 key questions:
o (1) When is there a right to sue under the statute to begin w/?
 There is a cause of action for a person for wrongful death if the decedent would
have had a claim if he had not died.
 It’s not just that there was a death; it’s that the death was wrongful
o (2) Who has a right to sue under the statute?
 Typically the cause of action is limited to next of kin, or heirs, or may be very
limited (i.e., the surviving spouse)
 Possible wrongful death claim for death of a stillborn baby
 In IL there is a claim from the point of conception. IL statute says the state
of gestation does not matter, as long as there is gestation.
 Some issues are not clear based on the text of the statute and would have to be
decided (e.g., whether there may be a claim for an adopted child of a homosexual
parent)
o (3) What can be recovered if a cause of action were to be successful under the statute?
 At some point, recovery for wrongful death was limited to out-of-pocket expenses
(but claims for wrongful death of a child- would have to be some sort of emotional
distress claim for pain & suffering)
 Some courts have decided that wrongful death is not available for non-financial
injuries.
 Modern trend- other courts have included non-economic claims for wrongful death,
i.e., emotional injury (we ask juries to do this kind of thing all the time)
Cause of action under survival statute
- Survival- P is making a claim for the person who suffered and died, but whose claim survived that
death
o Survival is for the estate. The death occurs after the claim. The claim survives. A claim
that a person had before they died will survive that person’s death and go to the estate.
- Also recognizes the right to recover under certain circumstances. But survival statutes are
different from wrongful death statutes in many ways (most importantly, issue of who may recover)
- Procedurally, we have to substitute the person who dies w/ something or someone else who can be
a P (since decedent can no longer logically be the P)
- ‘The estate’ – a legal entity that takes the place of a person after they die, for a period of time,
while we settle matters; includes what they owned and owed; has a legal personality and is
administered by someone; eventually estate will be divided, liquidated, and dispersed to those who
have a right to something in the estate
o Practically, this is very important: will determine whether it’s “worth it” for lawyer to take
the case.
- May be an argument that there was an injury suffered between the injury and the death: If
decedent had not died and had filed the claim in a timely manner, he would have had a claim, and
that would have been part of the estate.
o Pre-impact fear- claim where someone dies in an accident, and the state claims that there is
a value of the distress suffered by that person just prior to death.
 In many cases this is a poor argument (It was instantaneous)
 Plane crash- person knows they are going to die for a few minutes; estate argues
that there should be a value recognized for that fear.
 This probably has a value (debatable how much). P must have evidence to
prove that decedent had understood for some period of time that he was
going to die. (Is it a good idea to recognize the claim? Proximate cause?)
Defenses in cases of negligence
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A defense does not attack an element of the prima facie claim. A defense is an element of the
cause of action that may or may not have the effect of a successful motion to dismiss, but is based
on something other than the P’s prima facie case.
2 types of defenses, as they relate to the effect of the defense if successful:
o Complete defense- if successful, has the effect of a motion to dismiss; gets the case
dismissed immediately
o Partial defense- if successful, will have some effect on the case, but will not get the case
completely dismissed
Jurisdictional defenses vs. affirmative defenses (both are types of statutory defenses):
o Jurisdictional defense- defense the basis of which is that the court has no
jurisdiction/authority to deal w/ the matter
 D may bring a jurisdictional defense at any time during the case. If D does so and
is successful then everything the court did up to that point is irrelevant.
o Affirmative defense- (most defenses) defense the benefit of which is waived unless it is
brought at the earliest possible time
 If D has enough facts available in the complaint to realize that there is a defense
available to the D, and fails to raise the defense, then D cannot bring the defense
later.
Defenses based on the passage of time
Statute of limitations
- Statute of limitations- a period of time that by statute the P has to file the complaint; Once the
period of time expires, P loses the right to recover.
- Generally the time begins to run on the day of the accident
o Courts have developed exceptions- circumstances where it may be argued that the date of
the accident should not be used, but instead some later date
 The SoL statute itself usually includes an exception for injuries to minors (i.e., 1 yr
from date of accident, but minors have until 1 yr after they reach majority)
- Typically SoL is a relatively short period of time (1-5 yrs)
- Purpose of SoL- to protect someone who may be sued
o We want to encourage people to go to court while the evidence is still available and things
may be proven w/ a certain level of ease
o Also we don’t want people to live 20 yrs worrying about what’s going to happen.
- May be different SoL’s that apply to different types of claims
- If successful, the SoL is a complete defense
Statute of repose
- Statute of repose- a period of time for the accident to occur; If the period of time expires, and then
the accident occurs, then there is no right to recovery.
- Effect of a statute of repose- a P may lose the right to recover even before they had the right to
recover.
- Argument in support of statutes of repose- There are certain types of people who are involved in
activities that may result in injury, but for whom the protection that the SoL provides is not
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enough. Because there are certain people involved in activities that may cause injury so far away
in time, we need to protect them more.
o Ex.- Architects and engineers put together a building, which can stand for very long
periods of time. These types of D’s argue that it would be unfair to hold them liable for
injuries occurring dozens of yrs after the conduct.
A statute of repose releases a particular person from possible liability after a specific period of
time (i.e., 15 yrs after a building is finished, no one can bring claims against the builders)
IL has 2 very unusual statutes of repose: 6 yrs for legal malpractice claims and 4 yrs for medical
malpractice claims (these are not typical types of industries that allow statutes of repose, and these
are very short statutes of repose)
Defenses based on an evaluation of the P’s conduct
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Policy question- whether P’s conduct should be relevant in any way in determining whether P
should be allowed to recover
o It is consistent w/ some goals of tort law to take P’s conduct into account, and inconsistent
w/ other goals of tort law.
o Deterrence- We want to deter everybody from acting in ways that create unreasonable risks
of harm.
o 2 options: (1) P cannot recover as much (comparative negligence); (2) P cannot recover at
all (contributory negligence)
Contributory negligence
- Contributory negligence- allows D to have the claim dismissed entirely because P contributed to
his own injury
- Butterfield v. Forrester- 1809- court finds for D, dismissing P’s cause of action entirely because P
contributed to his own injury
- Once courts adopted this doctrine, they realized that it may be a little bit harsh (insufficiency of
the old rule of contributory negligence), and courts started carving out exceptions.
- McIntyre v. Balentine (1992) – exceptions to the rule of contributory negligence: where D’s
conduct was intentional, where D”s conduct was grossly negligent, where P’s negligence was
remote, etc.
o Court abandons contributory negligence and adopts comparative negligence (more fair:
allow us to assess the conduct of both the P and the D in a more just way)
Comparative negligence (comparative fault)
- Comparative negligence- the P’s recovery is reduced according to the proportion of negligence
attributable to the P
- “Pure” comparative fault- If P is 90% at fault, then P can recover 10%
- “Modified” comparative fault (really just shifting the doctrine of contributory negligence)
o 50% rule- P can recover is P’s fault is not more than that of the D
 If P & D are equally at fault, P can recover (50% or less attributable to P)
o 49% rule- P can recover if P’s fault is less than that of the D
 If P & D are equally at fault, P cannot recover (49% or less attributable to P)
- If the fair approach is one that takes into account the P’s conduct (and also aims to advance some
other goals of tort law), then the “pure” approach to comparative negligence is really the approach
that is the fairest.
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o Most states adopt some version of the “modified” approach to comparative negligence.
This is really just a new approach to contributory negligence.
Vast majority of jurisdictions (all but 4 states and D.C.) have discarded contributory negligence
and adopted some version of comparative negligence.
It is the jury’s job to evaluate the conduct and to apportion fault.
Assumption of the risk
Implied assumption of the risk
- Implied assumption of the risk- an old common law doctrine that allows the D to ask the trier of
fact to evaluate the P’s conduct to determine if the P’s conduct is such that the consequences of the
conduct should be that the P doesn’t have a right to recover at all
o The notion is that the P has voluntarily decided to assume the risk, and a D should not be
liable for injuries occurring due to that risk.
- Blackmon v. Dorta- the court gets rid of implied assumption of the risk altogether in the
jurisdiction, given that it has adopted comparative negligence over the old common law doctrine
of contributory negligence
- 2 types of implied assumption of the risk:
o (1) Implied primary assumption of the risk
 Not a notion of assumption of the risk at all: It is an argument the basis of which is
an attack on the prima facie claim.
 The argument is: either D did not have a duty to protect P from the risk, or the D
did not breach the duty
 Baseball game- fans assume the risk of getting hit by foul balls
 Not correct: This is not assumption of the risk. It is really an evaluation of
the D’s conduct- argument as to duty and breach
o (2) Implied secondary assumption of the risk
 Actually a defense (unlike implied primary assumption of the risk)
 Implied secondary assumption of the risk is a complete defense (would get the case
dismissed entirely)
 But once we get rid of contributory negligence: we should probably get rid
of implied secondary assumption of the risk (it is like contributory
negligence), and use the analysis of comparative negligence instead.
 Elements to limit the availability of the argument of implied secondary assumption
of the risk:
 (1) It must be a voluntary choice by the P (P must have done it knowingly)
 (2) P must have known of the risk (was aware of the risk)
- Majority of jurisdictions have gotten rid of assumption of the risk, or “merged” it w/ comparative
negligence.
o Minority of jurisdictions have held that assumption of the risk is still a defense available to
the P.
Express assumption of the risk (not technically an evaluation of the P’s conduct)
- Express assumption of the risk is something different entirely from implied assumption of the risk.
- The basis of the defense of an express assumption of the risk is a contract. It is an advance waiver
of liability.
- Express assumption of the risk is a 3-step contract-based analysis:
o (1) Whether there is a valid K
o (2) Whether the K applies
 Whether the risk involved is w/in the risks covered by the agreement
 Whether the agreement itself is clear enough to express that the risk is covered
o (3) Whether the K is valid under public policy
 Public policy issue- whether the activity involved is one of a high level of social
importance (Seigneur case- a gymnasium services are not a public necessity, like
schools, hospitals, and public utilities; P could argue that in our society health &
fitness is a public necessity)
 Whether one party is in a particularly unfair bargaining position as compared to the
other party
Defenses based on a relationship between the parties
- In some cases the relationship between the parties will allow the D to get the benefit of the
defense.
- An immunity is a complete defense (has the effect, if successful, of a motion to dismiss).
- An immunity avoids liability in tort under all circumstances, w/in the limits of the immunity itself.
- An immunity does not deny the tort, but the resulting liability.
Employer immunity
- Worker’s Compensation statutes in effect in all jurisdictions provide that employees may recover
from their employers for work-related injuries w/o having to show any fault on the part of the
employer.
- Because the statutes provide an alternative to the tort system, they confer immunity from tort
liability on the employer and co-employees.
- Therefore, under most circumstances, an employee who is injured on the job cannot file a tort
claim against his employer or co-employees even if they were negligent.
Spousal immunity
- Interspousal immunity- the fact that P and D are married, in and of itself, makes D immune from
possible liability
- Freehe v. Freehe (1972 Washington case)- the court gets rid of the doctrine of interspousal
immunity
o Reasons for the rule no longer apply: notion that W is H’s property; allowing married
people to sue one another would destroy peace & tranquility in the home (makes no sense);
spouses have an adequate remedy through criminal & divorce laws (this does not actually
compensate P for the damage done; provides no remedy for negligent torts)
o Courts are concerned w/ the possibility of spouses colluding and committing fraud:
pretending to hurt one, and the other suing and getting money from insurance, then
splitting the money
 This is a valid concern, but the court trusts the legal system to prevent these types
of cases on a case by case basis
Parental immunity
- Zellmer v. Zellmer (2008 Washington case)- the court continues to recognize parental immunity;
the policies behind the doctrine are still sound (unlike spousal immunity). But it is a qualified
immunity, not an absolute immunity.
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o The state should not dictate how parents should parent. There cannot be undue state
interference in parenting, but there can be due state interference in parenting.
o There is parental immunity for negligent supervision of a child, but not for willful and
wanton conduct (worse than negligence, but not entirely clear what willful and wanton
means)
o Where a parent acts outside the scope of parenting (e.g., running their business), immunity
does not apply.
 In most jurisdictions in car accident cases where there is insurance (and because of
insurance the relationship between parent and child will not be affected), courts
will allow the claim.
o California has gotten rid of parental immunity altogether; instead applies ordinary
negligence
o Zellmer court- Parental immunity applies to stepparents only if they stand in loco parentis
to the P (“can take the place of a parent”)
Traditional view is that if there is to be parental immunity, it is immunity between parents and
minor children.
o The immunity ends at some point (when child reaches age of majority, or child becomes
legally independent from parent, or when child gets married before age of majority)
Governmental immunity (defenses based on the relationship between an individual and the gov’t)
- Originally there was sovereign immunity- the State did not allow anybody to sue it (abandoned)
- The State then allowed people to sue it where the person had permission: person had to go to
legislature and petition a law to give that person a valid cause of action
- Governments began to enact statutes recognizing the right of individuals to sue the gov’t, subject
to the rules in these statutes
o Federal gov’t does this in the Federal Torts Claims Act (1946)
o All states have enacted statutes allowing individuals to sue them under some
circumstances.
Federal Torts Claims Act (1946)
- Allows individuals to sue the federal gov’t due to the conduct of someone who acted on behalf of
the federal gov’t
- Unique procedural features: very specific SoL, very specific description of the process by which to
file claims, etc. (Courts are very strict in making sure litigants follow these procedures)
- Limiting the right to recover: no right to a jury trial, no right to recover punitive damages, federal
gov’t cannot be sued under the theory of strict liability, etc.
- 13 famous exceptions to the act (in these cases the State retains immunity):
o Injuries caused by negligent handling of postal matters
o Injuries in combat (Feres doctrine; covers any injuries related to military service)
o Intentional torts
 Exception to the exception- federal gov’t will allow suits against it for injuries
caused by law enforcement officers under the claim that they are enforcing the law.
 If an FBI agent slaps you across the face in the interrogation process, you
may have a claim. If your mailman slaps you across the face when
delivering your mail, the federal gov’t is immune.
o Discretionary functions


Where the person acting on behalf of the federal gov’t is acting in the process of
exercising a discretionary function, the federal gov’t may be immune.
Some discretionary functions are immune, and some are not immune.
Municipalities’ limited duty
- Where the police begin to help, they have a duty to continue doing so non-negligently (just like
the duty to help in general)
- Riss v. NY – really a case of limited duty of care, not a case of immunity
o Court says- The duty for police to help only arises once they undertake a responsibility to a
particular member of the public. (D police had no duty to help the woman who complained
of threats and asked the police for help)
o “To serve and protect” – not really true; not in all situations
o The state or municipality argues it has no duty (does not argue immunity)
- Public duty doctrine- Essentially says that the State owes a duty to everyone in general, and
therefore, a duty to no one in particular.
- DeLong v. Erie County- a case where the Riss exception is applicable: the State not only was
asked for help, but began to help
o The police began to help (911 dispatcher told victim the police would be there shortly),
and the victim relied on that “assurance” that the police were going to help.
o The assurance by the State that they are going to help the victim, and reliance on the part
of the victim on that assurance- creates a duty.
o No immunity; possible liability for the State; and the State had a duty
Strict liability (liability without the need to prove fault)
-
-
-
Strict liability- liability w/o the need to prove fault (not “liability w/o fault”)
There may be claims for negligence under the same facts that could give rise to claims for strict
liability.
o Procedurally, it is possible to file a complaint w/ different counts: i.e., 1 for negligence and
1 for strict liability, or 1 for negligence and 1 for battery
 D may file a motion to dismiss 1 of the counts
Easier for P to win a case on strict liability than on negligence
There are limits placed on strict liability: very few circumstances under which P will be able to get
the benefits of being allowed to prove a case w/o having to prove fault
What separates strict liability and “absolute liability” – must prove proximate cause for strict
liability (absolute liability would be merely having to prove cause in fact)
o In K law, there may be absolute liability
P still has to prove cause in fact and proximate cause, but does not have to prove duty or breach of
duty
Proximate cause for strict liability- injury must be a foreseeable consequence of that which makes
the case a strict liability case (i.e., injury is the consequence of the use of a product)
P still has to identify the D, but does not have to identify the D’s conduct
o P does have to identify the type of case- that it is one of the types of cases where strict
liability may apply
1st element for a cause of action for strict liability- Determine that the case is one of the types of
cases where strict liability might apply:
o (1) Cases where the injury is caused by an animal (some, not all, of these cases)
o (2) Cases where injury occurs as the result of an abnormally dangerous activity
o (3) Products liability cases (some, not all, of these cases)
Damages caused by animals
- 2 basic categories:
o (1) Animals causing injury by trespass
o (2) Animals causing physical injury to people (i.e., dog bites)
 The distinction historically is between a wild animal and a domesticated animal
 The fact that a pet is kept as a pet does not necessarily mean that the animal
is domesticated.
 If a person keeps a wild animal that injures someone- that person is strictly
liable
 Courts allow strict liability in certain cases of attacks by pet dogs (courts are
concerned w/ the danger of dog bites; impose strict liability for deterrence
reasons)
o Courts will allow P to recover if D had knowledge or should have
had knowledge of the vicious tendencies of the animal.
o “The 1 bite rule” – notion that until the dog bites 1 time, D can
claim it had no knowledge that it would bite.
 This phrase is wrong: There may be evidence showing that D
should have known of the aggressive tendencies of the dog.
P may argue that he should be able to recover under theory
of strict liability.
Damages caused by abnormally dangerous activities
- Courts must determine whether the facts of the case support a finding that the activity in which D
was involved should be considered abnormally dangerous to the point where it should give P the
right to support a claim under a strict liability theory.
- Restatement 2d- gives a list of 6 factors (not all are required)
o Courts essentially give much more weight to 2 factors than the rest:
 (1) How common the activity is (i.e., construction is common); and
 (2) Whether and to what extent the inherent risks of the activity can be minimized
by the exercise of reasonable care
 If, even exercising reasonable care, the risk is still very high, then courts are
more likely to say that strict liability may apply to causes of action for
injuries resulting from that activity.
- The activity should be dangerous enough to allow P’s to have the benefits of strict liability claims.
- The analysis is very specific, and as a general rule the category of cases where strict liability may
apply will be very limited.
Defenses in strict liability cases
- For statutory defenses based on the passage of time, and defenses based on the relationship
between the parties, the analysis in strict liability is basically the same as in negligence cases.
- The difference comes in defenses based on an evaluation of the P’s conduct.
o At common law, the traditional view is that since strict liability is not based on negligence,
the P’s negligence is irrelevant.

Even in a jurisdiction where P’s contributory negligence was a complete bar, in a
strict liability claim the doctrine of contributory negligence had no effect.
 Assumption of the risk was still relevant.
o Since then, most states have eliminated contributory negligence.
o Today- jurisdictions differ
 Most jurisdictions have adopted the modern view that it is more fair to allow D to
use P’s conduct to have an effect on P’s claim, even in strict liability claims.
 In some jurisdictions this is done only in animals cases, or only abnormally
dangerous activities cases (jurisdictions differ)
Product liability
-
Product liability is not a theory of liability. Product liability is a type of case.
o “Strict product liability” is nothing. “It’s foolishness.”
A product liability claim may be brought under any theory of liability: could be an intentional
product liability case; could be a negligence product liability case (Johnson & Johnson case)
Common elements that are relevant to all product liability cases (regardless of the theory of liability under
which it is tried):
- (1) The injury occurs as a result of the use of the product.
o Restatement definition: A thing that is meant to be bought and sold in the market; can be
distributed commercially; is tangible (i.e., not stocks); meant for some sort of use
 Restatement exceptions- i.e., human blood & tissue (public policy- we want to
encourage people to donate their blood and organs w/o fearing being sued)
o “Use” – enjoying the benefits of a product
- (2) There is a sale.
o Typical D in a product liability claim is some sort of seller (manufacturer, or wholesaler, or
retailer)
o Some states have enacted an “innocent retailer” statute- to protect retailers who are in the
chain of commerce but really are not at fault (intermediate sellers)
o Any seller in the chain of commerce is a potential D in a product liability claim.
o Sale vs. service:
 Asking for a service that includes use of a product (e.g., hair straightener) –
whether the salon sells you a product
 If D can successfully argue that there was only a service and no sale, then that bars
the P’s strict liability claim.
 “Don’t be too technical about the word “sale”
 There may not have to be an exchange of money (i.e., you eat something
you are about to buy at the grocery store)
 But D may argue that there must be an exchange of money
- (3) There is a seller.
- (Don’t forget about the element of damages- must be an injury)
-
Proximate cause- whether the injury is the consequence of that which makes the case a strict
liability case (i.e., injury is the consequence of the use of a product)
o Intervening events that may defeat P’s argument for element of proximate cause:
 The key question- whether the intervening event is foreseeable

D brings defense of misuse of a product- D is really arguing that the use of the
product by the P operates as a superseding cause
 D argues that the misuse was unforeseeable.
 There is such a thing as foreseeable misuse of a product.
Cause of action based on breach of warranties
- K’s law does not determine the result of tort law issues. But courts in deciding torts issues may
look to other areas of the law and look at how those areas of the law deal w/ issues to decide how
to deal w/ issues in tort law.
o The product causes an injury, and if this were a K’s claim, P could argue that the product
failed to meet a warranty under K law.
- 3 types of warranties recognized in the UCC that may be relevant to deciding tort claims for
injuries caused by a product
Breach of an express warranty
- Express warranty- representation from seller to buyer that describes the quality, performance,
construction, or durability of a product; seller says that its chattel has certain characteristics or
qualities
- May be oral or written; must precede or accompany the sale
- “This windshield will not fly or shatter under the hardest impact” – P was allowed to recover from
D Ford despite evidence that D’s glass was the most shatterproof glass in existence
Breach of an implied warranty of merchantability
- Implied warranty of merchantability- warranty that the product is fit to do that which the product
is supposed to do
- Heningsen case- Court holds that privity of K between P and D is not required for D to be liable in
tort for damages caused by a product under a breach of a warranty of merchantability.
o This is not a K’s claim. This is a tort claim, so privity of K should not be required.
- Implied warranty of merchantability- arises when the product enters the market.
o The mere fact that the product is on the market carries w/ it an implied warranty of
merchantability.
Breach of an implied warranty of fitness for a particular purpose
- Implied warranty of fitness for a particular purpose- warranty that the product is fit for a particular
purpose
- Elements of a claim for breach of warranty of a particular purpose:
o (1) D had knowledge of the purpose for which the product would be put.
o (2) D had some reason to know that P was relying on seller’s skill and judgment.
o (3) P actually relied on D’s skill and judgment.
-
3 questions to be asked in cases of warranties:
o (1) What is the warranty? (what does the warranty say?)
 A warranty sounds like a statement of fact about any number of elements related to
the product (e.g., safety of product, performance of product)
 Not a statement of opinion (i.e., “I think this is the best car on the market”)
 Some marketing may be a warranty (jingles, marketing strategies)
 “Like a rock” – no one will believe that the car is like a rock
-
o (2) What gives rise to the warranty?
 The expression gives rise to the warranty
o (3) Why is there a warranty?
P must prove the existence of a warranty and a breach of that warranty.
Cause of action based on strict liability in tort
- Greenman v. Yuba Power (1963 California case) – The CA Supreme Court creates a new notion
of strict liability in tort, in a product liability context. This gives rise to a new concept of law
based on strict liability in tort, which gives rise to product liability.
o We should allow the P to recover in tort for injuries caused by use of a product, w/o having
to show negligence on the part of the D: a strict liability claim
- Restatement 2d Section 402(a):
o 2 basic underlying principles for any strict liability claim in tort:
 (1) There must be a product.
 (2) The product has to be defective.
 The basis of a claim in strict liability in tort is that the product has a defect.
o Must be a seller in the business of selling a product
o Product must be expected to and in fact reach the consumer w/o changes (defect must have
been present when it left the D)
o “The product must be in a defective condition unreasonably dangerous.”
 Much litigation and literature on what these words mean exactly
 Must have a defective condition (a defect), and must be unreasonably dangerous
(creates unreasonable risks)
o Comment in section 402(a): the consumer expectation test- a product will be considered
defective if the product falls below what the reasonable consumer would expect from the
product in terms of safety.
 Criticized over time; now the courts use an alternative approach:
 Risk-benefit analysis- whether the benefits provided by the product outweigh the
risks created by the product
 If risks outweigh benefits- then it is a defectively designed product
 Some criticize the risk-benefit analysis as being a negligence analysis (not a
strict liability analysis)
Defect
- Defect in fact vs. legal defectiveness
o Defect in fact- There is something wrong w/ the product as a factual matter.
o Legal defectiveness- That which is wrong w/ the product is so bad that it justifies the
recognition of liability.
- 3 categories of defect:
o (1) Manufacturing defect- The product is not manufactured the way it was supposed to be
 The product does not meet its own specifications/design.
 The product is not what it is supposed to be. (based on an evaluation of the product
itself (strict liability), as opposed to the conduct (negligence))
 “It wasn’t made right” – this is negligence language; relates to conduct
 Only 1 way to determine if a product has a manufacturing defect- you need to look
at the actual design of the product (to figure out how the product was supposed to
be)
o (2) Design defect- There is a defect in the plan itself
 The defect will affect every single product that actually meets the design.
 D’s will litigate design defect cases much more fervently than manufacturing defect
cases (the possible liability exposure that may arise out a design defect case is
much larger)
 Risk-benefit analysis to determine whether a product was defectively designed:
 Benefit of the product, risk of injury, cost of making product safer (i.e.,
whether engaging in the cost to make product safer would eliminate the
benefit the product provides)
o Above ground pools: D may argue that if it spends a ton of money in
an effort to make above ground pools safer, then customers would
not be able to afford them (It would take the product out of the
market)
o Balancing a little bit of safety and a little bit of convenience
 Whether there is a reasonable alternative design
o If D can prove that there is no reasonable alternative design, then
courts must decide whether we ought to even consider the
possibility that a product be considered defectively designed
 If so- court says that this is not a product it wants on the
market, period (or manufacturer may raise the price
substantially to pay for being sued)
o R3d approach- In a design case, P has to support the argument in
their prima facie case that there is a reasonable alternative design
available.
 Many (but not all) courts have rejected this.
 The courts are split. Some require P to show a reasonable
alternative, and others just consider that one of the factors of
the risk-benefit analysis.
 Prescription drugs
o R3d- A drug will only be considered defectively designed if no
doctor would prescribe the drug to anybody (extreme approach)
o (3) Warning defect- P argues that the product is in a defective condition unreasonably
dangerous because it lacks adequate warnings (warnings of the dangers that P faces when
using the product)
 Can sue under any theory of liability for warnings defects
 Some jurisdictions- There is a rebuttable presumption that if there had been a
warning, P would have read it and acted accordingly.
 The gov’t requires warnings for certain products (i.e., tobacco products)
 Poisonous products- courts will easily say it requires a warning
 Product that can cause allergies (but not necessarily death or serious injury)
 Courts may or may not require a warning; product containing peanutsusually courts will require a warning
 If product can only harm if taken in huge quantities- may not be a warning
required
 Types of warning cases:
 Where there is no warning

-
Where there is a warning, but the warning is insufficient, unclear,
inadequate, etc.
o What did the warning say (content)?
o How was the warning presented (manner/form)?
 Other warning cases- i.e., post-sale duty to warn
o R3d- Under limited circumstances, there ought to be a post-sale duty
to warn
o Once the product is already on the market, and the manufacturer
becomes aware of certain dangers, then manufacturer may have a
duty to warn those who have purchases the product.
 Over-warning: If we give too many warnings, people will not pay attention to them
(not a frivolous argument for D)
 Learned intermediary doctrine (good for manufacturers)
 Approach to issues of warnings in prescription drug cases that says that the
manufacturer has a duty to provide a warning to a doctor, who then, as a
learned intermediary, must warn the patient of the danger
 As long as manufacturer provides a warning to the doctor, manufacturer
cannot be held liable for failing to warn the patient.
 Now that we allow manufacturers to market drugs directly to the consumer,
argument is that we ought to require them to provide warnings directly to
the consumer
 Some jurisdictions have abandoned the learned intermediary doctrine, but
most still retain it.
P has burden of proving the case. P can prove defect in fact in any way that P may prove things in
negligence cases (using circumstantial evidence like res ipsa loquitur, etc.)
Basis of a strict liability claim in tort- the product is somehow defective
Defenses in product liability cases
- General statutory defenses apply to product liability cases as in other cases (SoL, statute of repose,
immunities, etc.)
- Defenses based on an evaluation of the P’s conduct
o Whether we will allow the jury to consider the P’s conduct in states that have adopted
comparative negligence for cases of product liability or strict liability in tort
 Modern view- There is no problem w/ this. It’s fairer. If P did something wrong,
then he should suffer the consequences.
 Allow the jury to assign liability to P and D. The fact that it is a strict
liability claim should not matter.
o D’s argument of misuse of a product- attacks P’s prima facie case
 If the argument fails to get the case dismissed, then that same argument may be
used to evaluate P’s conduct- to support a comparative negligence approach.
- Preemption (based on principles of federalism)
o Federal law trumps state law (common law of a state). If a federal law comes into conflict
w/ a state law, the federal law dominates.
o Preemption- a defense that allows D to say that recognizing a claim against D somehow
violates the concept of preemption, because it violates federal law
o Very common where the product is a federally regulated product