Intentional Torts
Intentional Torts
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Battery
Assault
False Imprisonment
IIED
Intentional Torts =
 volitional act +
 intent +
o purpose- goal/desire is to bring these consequences OR knowledge- knows with
substantial certainty that consequences will result
 substantial certainty- subjective test from defendant’s point of view, not
what he should have thought; doesn’t mean very likely, means almost
certain
o different from motive- impels a person to act to achieve a result (intent= purpose
to use a particular means to effect that result)
o transferred intent- 1) A intends a tort on B, but commits a tort on C OR 2) A
intends one tort, but accomplishes another= STILL LIABLE
 available in assault, battery and false imprisonment (limited in IIED)
 causation (conduct of defendant is substantial factor in bringing about injury)
Minors and incompetents are liable for their intentional torts
 Insane individuals are not excused from tort liability
 Children- in most states, may be liable for torts they commit as long as plaintiff can prove
elements, including intent (Garret, Hall)
o Some states hold young children (usually under 7) as incapable of harmful intent,
few states hold children under certain age as incapable of committing a tort
o Parents not vicariously liable for the torts of their children unless statute
authorizes suit
 Contrast: Employers liable for torts of employees as long as acts are done
in scope of employment- respondeat superior
 Statutes imposing liability exist in almost every state, but limited to 1)
children’s willfully or wantonly committed torts AND 2) damages capped
at very low amount
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Battery
Battery= an intentional infliction of a harmful or offensive bodily contract
ELEMENTS
 An act by the defendant with…
 Intent to cause
o purpose intent (goal/objective) OR
o knowledge intent (acted with substantially certain knowledge that a consequence
will result)
o RULE CHOICE: dual intent (majority)- intent to cause a harmful or offensive
contact via a touching vs. single intent (minority)- intent to touch
o Transferred intent available
 Harmful contact, offensive contact, or imminent apprehension of such a contact AND
o Harm= physical bodily contact
o Offensive contact (no injury necessary)
 offends a reasonable sense of personal dignity OR
 via prior knowledge, defendant knows plaintiff will be offended by the
contact
o Imminent apprehension of such a contact- enough that D intends to “cause
assault”/frighten
 A harmful or offensive contact occurs
 Causation- liable for…
o Direct contact
o Indirect contact- not necessarily touching P (i.e. throwing object at P)
 Sufficient if defendant sets in motion a force that brings about harmful or
offensive contact
 i.e. Plaintiff falls in hole dug by defendant
 i.e. Defendant was angry and broke a glass door. Plaintiff later cut
by glass.
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Different type of contact than intended: Can start with intent to harm and end up
offending or visa-versa; still a battery
Actual awareness: Not necessary that plaintiff have actual awareness of the contact at
the time that it occurs (i.e. sleeping, unconscious) still a battery
Extension: If something is an “extension of you” i.e. purse, cane…it’s a battery if
someone touches it
Responsible for all results, even unforeseen ones: Actor committing battery is
responsible for all results of act, even unforeseen ones (compare with negligence) § 16
Exceeding a privilege= possible battery (i.e. using excessive force in self-defense; using
non-deadly force against ‘intruder” who turns out to be the mailman
Actual damages not required, can recover for nominal damages
Van Camp v. McAfoos
 FACTS: Van Camp sues 3 year old McAfoos for hitting her leg and with tricycle while
she was walking on the sidewalk (injury required surgery)
 ISSUE: Does Van Camp have a cause of action for a battery?
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HELD: For McAfoos. No tort liability without fault (moral blameworthiness). Van
Camp does not allege fault, and court is not willing to extend concept of liability without
fault to childish acts by children.
o This may be limited to children
o Fault- intentional or negligent failure to maintain some standard of conduct when
the failure results in harm to someone else
o All other cases cites re: children (Garrett) extended liability to children because
plaintiffs alleged fault.
Snyder v. Turk- defines intentional
 FACTS: Dr. Turk was frustrated with Nurse Snyder during operation- pulled her face
down towards the surgical opening.
 HELD: Turk committed a battery. Although he claims he did not intend to cause
personal injury, court applied “reasonable minds test” and rules he intended to offend.
Cohen v. Smith- defines offensive
 FACTS: Cohen sues for battery because while having a C-section, a male nurse saw and
touched her unclothed body after she told a doctor about her religious beliefs.
 HELD: For Cohen. An offensive contact occurs when contact offends reasonable sense
of personal dignity. If defendant knew of prior sensitivity and that plaintiff would find
certain contact offensive, defendant is liable.
Leichtman v. WLW Jacor Communications- elaborates on contact
 FACTS: Antismoking advocate Leichtman sues radio host for blowing smoke into his
face.
 HELD: For Leichtman. Smoke= particles that constitute a contact.
Garret v. Daily- defines knowledge intent
 FACTS: Brian, age 5, moves a lawn chair over to sit in it while Ruth, age 60 with
arthritis, was allegedly about to sit down in that chair. Brian allegedly tried to put the
chair back under Ruth, but he was not quick enough and Ruth fell, fracturing her hip.
 HELD: Remanded back to trail. Although one may not have intent to
injure/embarrass/commit a battery, etc., one is liable assuming that he can foresee with
“substantial certainty” that injury will result.
Hall v. McBryde- defines transferred intent
 FACTS: McBryde saw kids approaching his house. Kids shot at his house and McBryde
returned the shots. Hall, next-door neighbor, was shot during exchange. Not sure whose
bullet shot Hall.
 HELD: Remanded for additional findings to determine who shot Hall. Yet establishes
that transferability of intent for imminent apprehension of contract is possible.
Polmatier v. Russ- liability of insane individuals
 FACTS: Russ beat his father-in-law Polmatier over head with beer bottle and then killed
him with a gun. Found to be insane at time of killing.
 HELD: Insane people are liable for their intentional torts.
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o Policy reasoning- Btw 2 innocents, the one who cased the harm should pay,
liability will encourage relatives to restrain insane people, liability prevents
people will faking insanity
White v. Muniz- intent for individuals with diminished capacity
 FACTS: White placed her grandmother in an assisted living home because she was
suffering with dementia. Muniz was hit on the jaw while changing Helen’s adult diaper.
 HELD: Established dual intent- must intend contact and intend that contact be harmful
or offensive. Here, Helen did not have intent to cause a harmful/offensive contact.
Mental deficiency/insanity is not a defense to an intentional tort, but rather, a
characteristic that makes it more difficult to prove the intent element of battery.
RULE CHOICE:
Defendant must have intent to 1) cause a harmful or offensive contract via a touching (most
states have this dual intent, i.e. White, no liability for wife who hugs husband breaks his
vertebrae) OR 2) touch (and turns out to be harmful and offensive)- single intent OR 3) touch in
a way that a reasonable person in this culture would know will turn out harmful/offensive
(foreign student pinches student on butt)
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Assault
Exam Tip: If battery, look to see if P
saw it about to happen (assault)
Assault= intention causing of an apprehension of harmful or offensive contact
 interference with mental tranquility, not body
ELEMENTS
1) Intent (knowledge or purpose) to put plaintiff in
 Intent to create apprehension (assault) or intent to make contact (battery)
 Transferred intent applies here
2) Apprehension of an immediate harmful or offensive contract (battery)
 Apprehension= knowledge, expectation not fear
3) Reasonable and imminent apprehension of battery results
 Reasonable= apprehension must be reasonable and not exaggerated (unless defendant
knows of plaintiff’s unreasonable fear and uses it to put P in apprehension)
 Imminent= does not mean immediate, as in the sense of instantaneous contact; rather, it
means that there is no significant delay, D has present ability to carry out threat
o threats of future contact was insufficient (i.e. “beat you up tomorrow” not assault)
o also no assault if defendant is too far away to do any harm or merely preparing
for future harmful act
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Words alone cannot count as an assault (unless accompanied with other acts or
circumstances)
o Perhaps better to say that words alone will usually not suffice to create a
reasonable apprehension to an immediate touching (usually is accompanied by
some additional circumstance)
o Words may also negate an assault by making an apprehension of immediate
contact unreasonable
 EX: Shakes clenched fist and says “If I wasn’t nice, I would punch
you”- no reasonable apprehension
Must be aware of threatened contact (vs. battery- awareness not necessary)
Conditional threat:
o Liable if actor gives the other an option to escape the contact by obedience to a
command unless command is one which the actor is privileged/has a legal right to
enforce
 EX: Burglar P enters D’s house. D says, “If you don’t leave, I’ll throw
you out.” No assault on P b/c D has legal right to force P to leave.
Defendant’s apparent ability to act is sufficient
o May be placed in reasonable apprehension of immediate h/o contact even though
defendant is not actually capable of causing injury to plaintiff EX: Jan points unloaded gun at Myron. Myron does not know that
gun is empty. His apprehension is reasonable.
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Threat to 3 person: must have apprehension that P herself will be subject to bodily
contact; no recovery for apprehension that someone else will be touched (even loved one)
No hostility necessary- D does not have to bear malice towards P or intend to hurt her
Privilege: Exceeds scope (i.e. homeowner D shoots P who he knows is unarmed burglar)
Actual damages not required; can recover for nominal damages
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Cullison v. Medley- no touching/apprehension of battery
 FACTS: Cullison invited 16 year old Sandy Medley over to his mobile home. Later that
night, Medleys enter his “house.” Father on crutches had gun strapped to thigh. Mother
yelled at him with hand in pocket (thought she had a gun also.)
 HELD: Remanded on element #3: reasonable and imminent apprehension of battery.
Medleys did intend to scare Cullison by surrounding him in his trailer, and Cullison was
sufficiently scared.
Koffman v. Garnett- touching/no apprehension of battery
 FACTS: Football coach Garnett used Koffman in a demonstration, tackling the much
smaller Koffman to the ground without warning and breaking his arm.
 HELD: Garnett liable for battery, but not assault. Koffman did not see it coming- no
apprehension. Issue of consent TBD- was this beyond scope of any consent he had
given?
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False Imprisonment
False imprisonment= occurs when D intentionally confines P.
ELEMENTS
1) Intent to confine (knowledge or purpose)
 Cannot be committed merely by negligent or reckless acts
 Transferred intent applies here
2) Confinement
 Physical barrier/force (held within certain limits, not that P is prevent from entering
certain places)
o Force can be directed at him, member of his immediate family, or his property
 EX: P cannot leave building because D has her purse.
 Threat of invoking legal authority
o Must be plausible threat (reasonable person standard)
 Threat of violence
3) Plaintiff= aware of confinement or harmed by it
 Exception: when person confined is actually injured by confinement (does not have to be
aware of confinement)
o EX: baby locked in bank vault false imprisonment
o EX: sleeping person locked in room, learns later that door was locked not false
imprisonment
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Confinement is complete even if there is a way to escape, unless plaintiff knows about it
o Unless the means of escape would offend a reasonable sense of decency and
personal dignity
o On the other hand, cannot refuse mildly inconvenient means of 3scape
If no intent to confine, but confines and causes bodily harm negligence
Damages can be recovered without actual harm
o Actual harm only required to support claim where plaintiff was not aware of
confinement at time it took place
Time of confinement: not applicable, except as to extent of damages
Confinement must be against P’s will/”enforced”
o If P told you to stay, but a reasonable person in P’s position would believe that
nothing bad would happen if P left, no enforced confinement, therefore no FI
McCann v. Wal-Mart- threat of evoking legal authority
 FACTS: McCann family was stopped by 2 Wal-Mart employees who mistakenly thought
that this was family barred from premise due to previous shoplifting. Family was told
that the police were being called (when in fact, they were not) and told to wait in area
near exit until allowed to leave an hour later.
 HELD: Wal-Mart is liable. Intended to confine family against their will, asserted legal
authority, and family was aware of situation.
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Hardy v. LaBelle’s Distributing- no false imprisonment
 FACTS: Temporary employee Hardy was accused of stealing a watch. Brought into
showroom manager’s office. Claims she was wrongfully detained against her will when
she was questioned in office.
 HELD: For defendants. Hardy did not ask to leave office, wanted to stay and fix the
situation, was not told that she could not leave, and no threat of force compelled her to
stay.
 Implicit subsidiary rule from Hardy case- if you don’t fight it, then you consented to it
o Jurors had gender stereotypes in their heads
 Tells you how to lawyer the case
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Intentional Infliction of Emotional Distress (aka IIMD)
ELEMENTS
1) Defendant’s conduct must be intentional (purpose or knowledge) or reckless (not the
outcome)
2) Defendant must have extreme and outrageous behavior- beyond bounds of decency
 Two factors that help establish this
o Relationship between the parties (specifically abuse of power)
o Defendant is aware of plaintiff’s particular sensitivities and exploits them
 Also look to severity and regularity of the conduct
 Mere insult is not sufficient
3) Defendant’s conduct caused plaintiff’s emotional distress
4) Severe emotional distress
 Measured by intensity and duration
 Some courts hold that distress must be severe enough to cause physical manifestations
(yet R2d and most courts do not require this)
 Usually has to be severe enough that P sought medical attention
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Limited transferred intent: Third party/bystander IIED
o Plaintiff can recover if
 A) present (and defendant knows that P is present…because defendant
must be substantially certain he will cause severe emotional distress to P )
 B) related to party OR suffers actual bodily harm
o Or else, all witnesses could sue if, for example, they saw someone shot
Courts reluctant to recognize this tort- high standards
Special liability for mishandling corpses
Actual damages are required- nominal damages will not suffice
GTE Southwest (defendant) v. Bruce (plaintiffs)
 FACTS: Bruce and two other employees gave testimonies that supervisor, former US
Army sergeant, regularly engaged in abusive, threatening and degrading conduct
 HELD: Plaintiffs have established that defendant engaged in extreme and outrageous
conduct. Severity and regularity of his actions (harassment, intimidation, humiliation,
and daily obscene and vulgar language) established this element of IIED.
 Vicarious liability
o Respondeat superior- a boss is responsible for his employees wrongdoings
 Yet boss not liable for intentional torts
 Unless the tort was committed in furtherance of the company
o Worker’s comp- can’t sue your boss
 Plaintiff’s here were GTE employees
 Maybe intentional torts are outside of worker’s comp
Jones v. Clinton
 FACTS: Jones propositioned by then-Governor Clinton. Alleges IIED.
 HELD: Summary judgment for Clinton. No severe emotional distress.
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Homer v. Long
 FACTS: Home’s wife of many years hospitalized for depression. While in hospital,
Doctor Long seduced her, allegedly taking advantage of her and changing her
personality, which resulted in divorce for the Homer’s. Homer sues for IIED.
 HELD: For defendant Long. Long’s conduct was extreme and outrageous, but it was not
directed at Mr. Homer. Normally must be witness to e/o behavior to seek recovery.
Requirement of presence has been relaxed when families seek recovery for cases
involving child kidnapping/molestation, but n/a here.
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Affirmative Defenses to Intentional Torts
“Privileges” based on plaintiff’s conduct
Self-defense- One is privileged to use reasonable force to defend against harmful or offensive
bodily contact and against confinement
When is the defense available?
 Reasonable belief
o Privilege depends on apparent necessity of self-defense, not on actual necessity
o Therefore, reasonable mistake s to existence of danger does not vitiate the defense
 Retaliation not allowed- must be imminent battery
o Self-defense limited to use of force to prevent commission of tort. May not act
when threat of injury is not longer there. Must act in real time.
 No duty to retreat- majority rule
o Some states/Restatement require that D may use non-deadly force before
retreating, but must reasonably retreat before deadly force is used UNLESS
defendant is in her own dwelling
 i.e. P attacks D on street with knife. D may use fists instead of running
away, but may not use a gun rather than running away if running away
would avoid the danger. Yet if D attacked at home, where plaintiff is not
a resident, may use gun.
 Not available to aggressor
o Initial aggressor may not defend himself against the other party’s reasonable use
of force in self-defense
o However, if other uses deadly force against an aggressor who had only used nondeadly force, aggressor may defend himself with deadly force
How much force may be used?
 May only use force that appears to be reasonably necessary to prevent harm
o Therefore, if harm threatened is not itself death or serious bodily harm, defendant
may not use force likely to cause death or serious bodily harm
o Excessive force is unprivileged
Defense of third person?
 In general, one may defend others on the same basis that he may defend himself
 Some courts have held that defendant is liable for battery if he mistakenly defends (i.e.
police officer trying to lawfully arrest someone who is being difficult); other courts have
held that the privilege covers these situations if defendant’s belief was reasonable
Touchet v. Hampton- Words/provocation cannot justify a physical attack.
 FACTS: After Touchet, sales manager at Hampton Mitsubishi, was fired, he left several
threatening voicemails on Hampton’s machine. When Hampton went to Touchet’s new
office, Touchet whirled around in his chair and yelled, “F you Hampton.” Hampton
allegedly defended himself by hitting Touchet, until co-worker broke them up.
 HELD: No self-defense. There was no actual or apparent threat to Hampton’s safely.
Even if there was, Hampton used excessive force.
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Discipline
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Right to engage in battery if purpose is disciplinary
Parents disciplinary privilege teachers (derivative)
o Other people in loco parentis- babysitter, relatives, military, prison authorizes
Reasonable corporal punishment may be used by parents or others acting in loco parentis
Thomas (mother of minor son, Joseph) v. Bedford- cannot claim self-defense because
provocation occurred 15 minutes before alteration
 FACTS: Bedford used to be Joseph’s teacher, and Joseph used to engage in mischievous
behavior directed at Bedford. One day, Joseph lightly hit Bedford on the back and shot a
rubber band in his face. Bedford chased Joseph and threw a board at him, missing. 15
min later, Bedford brought Joseph into a “project room” and gave him a shaking/beating.
 HELD: Joseph was not the aggressor and therefore, Bedford’s use of corporal
punishment was unreasonable. Altercation in project room was separate incident and not
a spontaneous reaction to original provocation.
Detention/Citizen’s Arrest
ELEMENTS
 Private person can detain without consequence or liability for false imprisonment if
o Felony in presence
o Felony not in presence but arrestor ahs probably grounds to believe felony
occurred
o Misdemeanor committed in presence of arrester which amounts to breach of
peace
 Property owners (i.e. shopkeepers) have right to detain
o Previously, there were two competing rules
 Detain at your peril (MD rule)- liable if you are mistaken about shoplifting
 Detain on your reasonable belief (R2D)- now the law everywhere
Great Atlantic & Pacific Tea Co. v. Paul
 FACTS: Paul, who had recently had a heart attack, was at local A&P. He left his cart at
the end of the aisle and walked up and down looking for food he could eat, and dropping
it back in his cart. Assistant manager watched Paul and believed he put a can of tick
stray in his coat, brought him to manager’s office, where Paul was detained. Manager did
not check shelf to see if anything was missing, nor did he see Paul put anything in his
coat. Also, Paul did not try to leave the store. The tick spray was not found in Paul’s
possession.
 HELD: Defendant did not rightfully detain Paul. A shopkeeper may detain if he believes
someone has taken his property. Yet MD has the “Detain at your peril rule”= if
shopkeeper is mistaken, liable for false imprisonment. A&P argues for the Restatement
rule, “Detain on your reasonable belief” but Court unwilling to adopt it. Even under
Restatements, A&P would be liable because there was no probable cause.
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Defense of property
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May use reasonable force to defend property, both land and chattels
Usually verbal warning is required first (unless clear that warning would be futile or
dangerous)
Effect of reasonable mistake by D varies
o Mistake as to danger- if D’s mistake is about whether force is necessary, D is
protected by reasonable mistake
o Privilege- but if the owner’s mistake is about whether the intruder has right to be
there, the use of force will not be privileged
Deadly force
o May use deadly force only where:
 Non-deadly force will not suffice
 AND the owner reasonable believes that without deadly force, death or
serious bodily harm will occur
 i.e. use of deadly force allowed against a burglar
Mechanical devices- may use mechanical device to protest property only if she would be
privileged to use a similar degree of force if she were present and acting herself
Limited to preventing commission of the tort
o Once D has dispossessed P of property and tort is complete, may not use force to
recapture property. Yet defense still operates if D is in “hot pursuit” of P.
Superseded by other privileges (i.e. necessity)
Katko v. Briney
 FACTS: Series of break-ins to Brineys’ unoccupied farm house. Boarded up windows,
put no trespass sign and finally set shotgun trap in one of the rooms (no warning of the
gun). Katko entered house looking for old bottles and jars and the gun blew off most of
his leg. Katko sues for battery. Brineys claim they were defending their property.
 HELD: For Katko. Owner of premise is not allowed to willfully injure a trespasser.
Only time this conduct would be justifiable would be when trespasser committed a felony
of violence or felony punishable by death, or endangering human life by his act.
 Places infinite value on human life- does this make sense? Torts system values human
life, but not infinitively.
Consent
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Consent is a defense unless
o Duress
 Threats of future action or future economic deprivation are not sufficient
legal duress to invalidate consent
o Incapacity that defendant is aware of or should reasonably be aware of
 Mental disability
 Intoxication
 Minor
 Insane
o Fraud/deception
 Must go to essential, not collateral, matter
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o Action in excess of consent given (unless medical emergency)
Obtaining consent
o Express/explicit- D not liable if P expressly consents to intentional interference
with his person or property
 Consent by mistake- still consent unless D is aware of P’s mistake
o Implied
 Custom
 From plaintiff behavior as reasonably interpreted by defendant (objective
manifestation)
 Consent implied by law in medical emergencies
 1) P unable to give consent; 2) immediate action necessary to save
P’s life or health; 3) no indication that P would not consent if able;
4) a reasonable person would consent in the circumstances
Reavis v. Slominskki- incapacity
 FACTS: Plaintiff works for dentist. History of sexual encounters. Had sex while drunk
at party. Sues for battery. Defendant argues consent. Plaintiff claims that her consent is
ineffective because she suffered from an abnormal inability to refuse sex as a result of
childhood abuse.
 HELD: Remanded to consider defense of consent. Consent is not effective if person
lacks capacity to give consent but 1) defendant must be aware of incapacity and 2)
condition must substantially impair ability to under risks and harm of conduct.
Ashcraft v. King- action in excess of consent given
 FACTS: 16 year old girl consented to blood transfusion using family-donated blood,
which was not used. Girl contracted HIV.
 HELD: Patient has battery claim because transfusion exceeded the consent given.
Kennedy v. Parrott
 FACTS: Kennedy consented to appendectomy and during procedure, Dr. punctured
enlarged ovarian cysts. Kennedy then developed phlebitis and sues for battery on theory
that it was proximately caused by unauthorized extension of appendectomy.
 HELD: No suit for battery. Consent will be construed as general in nature because exact
condition of patient cannot be determined until incision has been made. Rule applies
when patient is incapable of giving consent, and no one with authority to consent for him
is immediately available.
Doe v. Johnson
 FACTS: Magic Johnson knew or should have known that he had high risk of being HIV
positive, and did not inform plaintiff, nor did he use a condom. Plaintiff sues for battery.
Johnson moves to dismiss- consensual sexual activity.
 HELD: Denied. One who knows he has a VD and knows his partner is unaware of his
infection commits a battery by having sex.
O’Brien v. Cunard S.S. Co., Ltd.- implied consent
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FACTS: Immigrant plaintiff stood in line to get vaccinated for smallpox. She knew what
was happening because notices were posted around the ship in difference languages and
saw other women pass before her. She had previously been vaccinated, but bore no
mark. Tried to tell doctor when it was her turn, then presented her arm to doctor. Now
sues for battery.
HELD: No cause of action for battery. Her behavior indicated consent and surgeon
could only judge by her overt acts and manifestation of her feelings, despite what her
unexpressed feelings were.
Privileges not based on plaintiff’s conduct
1. Arrests and searches
 Officers can enter land to execute a search or arrest warrant
2. Private rights
 Privilege to enter land to reclaim goods of one’s own (i.e. goods washed up on plaintiff’s
land)
 Privilege to enter appropriate portions of public property- cannot discrimination based on
race or gender (public accommodation laws)
3. Necessity
Public Necessity
ELEMENTS
 Privileged to enter land in possession of another if
o Reasonable belief act is
o Necessary to avert a public disaster
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When act is for the public good, the defense is absolute
No individual liability- in some jurisdictions, states will pay the damages
“Can enter land”
o Note explains that this extends to modifications/destructions of land and also
personal property (chattels)
Surocco v. Geary (Alcalde of San Fran)- public necessity, individual not liable
 FACTS: Geary, a public officer, destroyed Surocco’s house during the fire of 1849 to
prevent fire from spreading. Surocco was in process of removing belonging and claim
that he would have been able to save more had Geary not interfered. Sues for trespass.
 HELD: Geary not liable for damages because he was acting in public necessity.
Wegner v. Milwaukee Mutual- individuals should not have to pay, city must pay
 FACTS: A suspect enters Wegner’s house. ERU team and suspect were engaged in
standoff. Police delivered tear gas and broke every window of the house. Wegner sued
city and insurance company to recover damages and for trespass.
 HELD: Police officer not liable, but city has to pay for damages done even though act
was privileged. State constitution takings clause says that private property cannot be
taken or damaged for public use without just compensation.
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How are cases distinguishable besides rule changes, centuries apart?
 Geary= person; city of Minneapolis= municipality
o More likely to impose liability on the public than on an individual
Private Necessity
ELEMENTS
 Privileged to enter/remain on someone else’s land if
o Reasonable belief act is
o Necessary to avoid imminent harm to actor, land or chattels or third person
 If in process of taking refuge, you damage land must pay (qualified defense)
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Forces people to internalize externalities (when you impose a cost on someone else)
o  making efficient choices
 Causes you to think of it as if you owned both assets- sacrifice the cheaper
assert to make the efficient choice
Owner must not resist
Ploof v. Putnam
 FACTS: Ploof forced to moor boat to Putnam’s dock due to storm. Putnam had servant
unmoor boat people injured/boat destroyed. Ploof argues that unmooring boat was
trespass.
 HELD: For Ploof. Had right to stay on Putnam’s dock.
Vincent (dock owner) v. Lake Erie Transportation Co. (owner of steamship Reynolds)
 FACTS: Steamship owned by Lake Erie was unloading cargo at the dock when violent
storm developed- too dangerous to leave dock. Lines were put in place to hold ship fast
to the dock, which resulted in damages to the dock.
 HELD: For dock owner. Lake Erie must pay for the damages. Deliberately held ship to
the dock- availed itself of plaintiff’s property for the purpose of preserving its own more
valuable property. No public necessity (acting selfishly). Private necessary imposes
liability on actor.
16
Negligence
Generally, imposing on others an unacceptable degree of risk of injury, failure to take
precautions moral blameworthiness
ELEMENTS OF NEGLIGENCE
1) Duty
2) Breach (small “n” negligence)
3) Factual cause
4) Proximate cause
5) Damages
17
Duty
Duty to behave like a reasonably prudent person under the circumstances
 The standard of care remains the same under all circumstances (Stewart)
o But if the danger is high, the reasonable person will ordinarily exercise care
greater than if danger is low
 Reasonable person- objective standard
o Has same physical characteristics/disabilities as defendant
 Yet expected to know your handicaps and exercise the care of a person
with such knowledge (i.e. someone with epilepsy shouldn’t drive)
o Average mental ability (not deemed to have mental capacity of defendant)
 Individual mental handicaps are not considered (i.e. low IQ no excuse)
o Same knowledge as average member of community
 Yet defendant with knowledge superior to that of the average person to
required to use that knowledge
 Sudden emergency doctrine- in midst of crisis, a reasonably prudent person may not be
thinking clearly, might do things that one cannot do under normal circumstances
(Wilson)
o Really just an embellishment of behaving “reasonably”- defendant must behave as
reasonably prudent person confronted with same emergency
 To whom is duty of care owed? Foreseeable plaintiffs (see proximate cause)
Stewart v. Motts
 FACTS: Stewart goes to Mott’s auto repair shop and offered to help him repair a fuel
tank. While moving car, car backfired and resulted in severe burns over Stewart’s upper
body. Plaintiff requests instruction that there exists a higher standard of extraordinary
care for use of dangerous instrumentalities over and above standard of reasonable care.
 HELD. Denied- No higher standard. Standard never varies. Under same standard, the
level of care must be proportionate to danger involved (because a reasonable person
would increase the level of care used)
Wilson v. Sibert
 FACTS: Sibert was in front of Wilson at drive-in bank window. When car in front of
Sibert abruptly starts to back up towards him, Sibert puts his car into reverse and backs
his car into Wilson’s without honking or determining if someone was behind him.
Wilson sues for negligence. Court gives sudden emergency doctrine and Wilson objects.
 HELD: For Sibert. Sudden emergency doctrine was rightly given. Jury must decide the
rapidity with which a person is forced to act in an emergency situation.
18
Particular Standards of Conduct: Exceptions to General Rule

Specialized rule trumps general rule
What Circumstances Count? (constitute a defense/specialized rule)
Counts
Children
Superior skill
Physical disabilities
Emergencies
Does Not Count
Child doing adult things
Insanity
Intoxication
Mental disabilities
Child standard of care- specialized rule



Duty for a child is to exercise the same care as a reasonable child of like age, intelligence,
experience, acting under similar circumstances
o Subjective standard used for children is more pro-defendant than adult standard
EXCEPTION: children are held to adult standards if child engages in adult activity
Some courts say that children of very young age (under 3) are incapable of negligence
Robinson v. Lindsay
 FACTS: Billy, age 13, was driving snowmobile and got into accident with Kelly, age 11,
who lost full use of her thumb. What standard of care should Billy be held to?
 HELD: An adult standard of care. When child engages in activity which is inherently
dangerous, as in the operation of powerful mechanized vehicles, the child should be held
to adult standard of care
Superior Skill- specialized rule
Cervelli v. Graves
 FACTS: Cervelli began to fishtail on an icy road. Graves, a professional truck driver,
approached from behind, and tried to pass on both sides. Graves eventually lost control
and the cars collided.
 HELD: For Cervelli. No special standards for “professional drivers,” but superior
knowledge and skill are part of the circumstances.
Mental Disabilities- no specialized rule


Held liable for intentional AND negligent torts
Policy reasoning
o Allocates losses between two innocent parties to one who caused the loss
o Provides incentive to those responsible for people with disabilities and interested
in their estates to prevent them from causing harm to others and restrain those
who are potentially dangerous
o Removes inducements to fake mental disability
19

o Avoids administrative problems involved in courts and juries attempting to
identify and assess significance of actor’s disability- too difficult to draw line
between mental deficiency and variations of temperament, intellect and emotional
balance
o Forces people with disabilities to pay for damage they do if they “are to live in the
world”
EXCEPTION: If someone is mentally disabled, institutionalized, and hurts a caregiver
not liable
Creasy v. Rusk- EXCEPTION
 FACTS: Rusk was admitted by wife to hospital for Alzheimer’s- depressed, belligerent,
aggressive, disorientated. One night when Creasy was putting him to bed, he kicked her
and caused her injury to her back.
 HELD: Person with mental disabilities are held to same standard of care as that of a
reasonable person under same circumstances. Yet one employed to take care of patients
such as Rusk have no complaint for injuries sustained in doing so- as to such a caretaker,
duty of care is one-way street.
Insanity- no specialized rule

Majority rule= Mental illness is never a defense. Insane are held to same standard as
everyone else.
MINORITY RULE- Breuing v. American Family Insurance (Wisco)
 FACTS: Emma Veith had a sudden delusion, which caused her to crash into Breuing’s
truck.
 HELD: If her delusion was unforeseeable, then she has a valid defense.
Using Statutes to Define Duty: Statutory Standard of Care
Negligence per se: When a safety statute has sufficiently close application to the facts of the
case at hand, an unexcused violation of statute by defendant is “negligence per se” and that
conclusively establishes that defendant was negligent (breach and duty of care satisfied; still not
to establish causation and damages)
 Used when
1) Plaintiff is in class of persons that statute protects AND
2) Plaintiff’s injury is of the type that the statute was designed to prevent
 Defendant’s violation of statute is excused when…(when not to borrow a statute when
above test is met)
o Violation is reasonable due to incapacity (i.e. youth, blindness)
o Actor neither knows nor should know of the occasion for compliance (i.e. tail
light goes out without driver’s knowledge)
o Actor is confronted by emergency not due to his own misconduct
o Compliance would involved greater risk of harm to the actor or to others
o Defendant made reasonable/diligent effort to comply
o Violation due to confusing way requirements of statute were presented to public
 Statute prescribes precise contours of reasonableness
20


o Rather than, D has duty to act like a reasonably prudent person unlike like
circumstances, now, D has duty not to sell ammo to anyone under 21 (in this case,
only issue is age- if P is under 21, D is negligent)
Allows courts to mold standards of conduct in penal statutes into rules of civil liability
(“judicial legislation”)
o Doesn’t create new cause of action
o Rather, courts use penal statue to define a reasonably prudent person’s standard of
care
Some statutes (i.e. licensing statutes) cause problems
o Licensing statues don’t prescribe conduct
 Therefore, most jurisdiction don’t find Dr. liable for negligence solely due
to lack of license. Most prove negligence by ordinary means.
Rains v. Bend of the River- injury that statute was designed to protect
 FACTS: Rains, 18 years old, stole father’s handgun. Father did not have ammo so he
purchased it from defendant Bend of the River. This was violation of Gun Control Actillegal to sell firearms or ammo to people under 21. Rain committed suicide using
purchased ammo. Plaintiff sues on negligence claim. Wants to borrow criminal statute
and turn it into jury charge.
 HELD: For defendant. Illegal sale of ammo to 18 year old who used it to commit
suicide should not trigger negligence per se doctrine. Congress did not create a private
civil cause of action for this sort of violation of the Gun Control Act- did not intend to
prevent suicide.
Wright v. Brown- class of people
 FACTS: Brown’s dog had previously bit someone and was quarantined by defendant dog
warden. Dog realized prior to expiration of 14 day quarantine required by statute. As
result of early release, dog was placed in situation where it attacked Wright. Brown
argues that Wright was not in class of people protected by statue because she was not bit
by a diseased dog.
 HELD: For Wright- she was in class of people (public!). The statute was also enacted
to prevent people from worrying that they might have rabies. Not solely enacted to
prevent people who were bit by dogs from the disease itself.
Impson v. Structural Metals- excuses
 FACTS: Driver of defendant’s truck attempted to pass a car within 100 feet of
intersection, which is prohibited by statute. Car turned left into intersection and was hit
by truck, resulting in injury and death to car passengers. Defendant offered some excuses
as to conduct.
 HELD: For plaintiffs. Defendant’s excuses were not legally acceptable to warrant
violation of statute designed as a safety measure.
21
Alternative Duty Standards




Assumption in negligence= single standard of care
o Behave like a “reasonably prudent person under similar circumstances”
o Exceptions= children, statutory standards of care
Now, will consider variety of circumstances where assumption is not valid alternative
duty standard
Used to be a rule that limits duty of driver of car to passengers
o Guest Statutes- only liable for intentional or reckless behavior
 Don’t owe your passenger reasonable prudent
 Many courts invented exceptions
 i.e. if you paid yet led to other issues
o Yet these were abolished- no longer special category of duty
Special duty standards
o Land possessors
o Medical and other professionals
o No duty- immunities
o Duty to act affirmatively
o Duty to control third persons
22
Special Duty of Possessors of Real Estate
Entrant (plaintiff) v. Possessor (defendant)
Questions to ask
 What kind or category of entrant is plaintiff?
 Did defendant know that plaintiff was there (discovered or undiscovered?)
 Did plaintiff get hurt by activities of defendant or by conditions on the land?
NOTE: 50% of states still have these categories, 50% of states follow Rowland and have
substituted a general duty of care.
What kind/category of entrant is plaintiff?
1) Invitee- person who enters land in response to express/implied invitation
a. Business invitee- on premise for pecuniary benefit of possessor (customer,
employees)
b. Public invitee- on premise held open to general public
i. Two may overlap- i.e. shopping at supermarket
 Loses invitation if extends scope
 Duty owed
o General duty to use reasonable and ordinary care in keeping property reasonable
safe for benefit of invitee
 Duty includes duties owned to licensees (to warn of non-obvious
dangerous conditions known to landowner and to use ordinary care in
active operations on property) PLUS duty to make reasonable
inspections to discover dangerous conditions and make them safe
 “make them safe”- usually warning is sufficient
 duty to warn does not apply when dangerous condition is so
obvious that invitee should reasonably be aware of it)
2) Licensee- enters with permission for his own purpose or business rather than landowner’s
benefit
 Standard example= social guest
 Duty owed
o To warn of dangerous condition known to owner that creates unreasonable risk of
harm and licensee unlikely to discover
 No duty to inspect for defects or repair known defects
 Duty to exercise reasonable care in conduct of “active operations” for
protection of licensees known to be on property
3) Trespasser- no permission
o Undiscovered trespasser- No obligation to discover and no duty of care owed
(Palsgraf applied to land possessors)
 Yet there is a duty to refrain from willful (intentional) or wanton (with
absolute disregard for human safety- reckless) injury
o Exceptions to “no duty”
 Discovered trespasser- must behave with ordinary care
23


Constant trespass on limited area
 Owner has reason to know that limited portion of land is frequently
used by trespassers, must use reasonable care to make premise safe
or warn of dangers
Child trespasser- see below for Attractive Nuisance Doctrine
Characterizations of privileged entrants
 Entrant serving some purpose of possessor- generally is an invitee (i.e. garbage
collectors, mail carriers)
 One who comes under normal circumstances during working hours- invitee (census taker,
health inspectors)
 “Firefighters rule”- police and firefighters treated as licensees (based on public policy)therefore cannot recover for landowner’s failure to inspect/repair dangerous conditions
Types of injuries
1) Entrants who come onto land and get hurt by activities
2) Entrants who come onto land and get hurt by conditions
 Undiscovered trespasser and condition- no duty
 Discovered/anticipated trespasser- rule that supposed to impose narrow duty of
care
 Only duty to warn discovered/anticipated trespasser, or to make safe,
condition if condition is:
o A. Artificial (man-made) AND
o B. Highly dangerous AND
o C. Concealed from plaintiff/victim/trespasser AND
o D. Defendant/land possessor knew of it in advance
 Licensees- C and D
 Invitees- C and D known or reasonably discoverable by
landowner (imposes duty to reasonably inspect the premise for
dangerous conditions and fix them)
Child Trespasser
 Attractive Nuisance Doctrine- artificial condition attractive to children
o May be applied to abandoned cars, lumber piles, sand bins, elevators
o Bodies of water- not usually because dangers are obvious, yet may be dangerous
if contain elements of unusual danger (floating plants)???
 Special child trespasser rules apply only to children who, because of tender years, are
foreseeable unlikely to appreciate the dangers and avoid them
o Usually applies to children of grade school age or younger
 Adult rescuer of child trespasser- assumes status of child and owed duty of reasonable
card
 Owe children care of a reasonably prudent person; Restatement gives the “under the
circumstances”
 Attractive Nuisance Doctrine § 339- Artificial Conditions Highly Dangerous to
Trespassing Children
o A possessor of land is subject to liability for physical harm to children trespassing
thereon caused by an artificial condition upon the land if
24
o A) the place where the condition exists is one upon which the possessor knows or
has reason to know that children are likely to trespass, and
o B) the condition is one of which the possessor knows or has reason to know and
which he realizes or should realize will involve an unreasonable risk of death or
serious bodily harm to such children, and
o C) the children because of their youth do not discover the condition or realize the
risk involved in intermeddling with it or in coming within the area made
dangerous by it, and
o D) the utility to the possessor of maintaining the condition and burden of
eliminating the danger are slight as compared with the risk to children involved,
and
o E) the possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children
Open and Obvious Danger Rule
 Not a rule per se- just an approximation of general notice- no duty to protect if person can
protect himself
 Examples of open and obvious danger yet duty to protect
o Icy front walk- impose a duty despite open and obvious because no choice but to
traverse the ice
o Distracted- consumer might not notice substance on floor, paying attention to
child
EXAMPLES:
 Friend visiting at hospital= business invitee
o Courts are imaginative at finding business invitee; reason that sick person picked
hospital because they knew that family and friends could visit
 Door to door canvas- can argue that there is implied consent, which would make that
person a licensee
o But if you put up a no trespassing sign or gate…
Outside the premises
 Special rules lowering landowner’s standard of care do not apply to conduct by
landowner that has effects outside of his property
o Therefore, general reasonable care standard usually applies to such effects
 However, if hazardous condition exists naturally on the land, property owner has no
duty to remove it or guard against it, even if it poses an unreasonable danger to people
outside of property
o In urban or densely populated area, courts are less likely to apply this rule
 Artificial hazards- owner has general duty to prevent an unreasonable risk of harm to
people outside the premise when hazardous condition is artificially created
Gladon v. Greater RTA
 FACTS: Drunk Gladon alone traveling home after baseball game gets up at wrong
station and attacked by two unknown men. Somehow ended up on tracks with legs
draped over rail. Operator of approaching train had train in braking mode when saw
25

tennis shoe and then saw legs on tracks. Tried to brake but ended up hitting Gladon.
Issue: was AUC (failing to keep proper lookout, speeding, mis-reacting)…AUC under
the circumstances?
HELD: Gladon was a trespasser because he was on the tracks (not an invitee as the trial
court thought). RTA’s invitation did not extend to area of tracks. Jury now must decide
if he was discovered or undiscovered trespasser. RTA owed no duty to Gladon except to
avoid injury him by willful or wanton conduct if he is found to be undiscovered. Volition
does not matter- still a trespasser if pushed onto tracks.
o Note- term would be used differently if RTA had sued Gladon for tort of trespass.
Volition would be defense for tort of trespass.
Bennett v. Stanley
 FACTS: Young son who was looking for frogs and mother drown in next-door neighbors
pool. The Stanleys had allowed rainwater to accumulate in unused pool, turning the pool
into a pond with slimy algae walls and no ladders. Stanleys were aware that Bennetts had
small children and had seen them outside unsupervised.
 HELD: Children trespassers are owed a different duty of care. Stanleys could have
reasonably predicted that pool would draw him to the land- attractive nuisance doctrine
O’Sullivan v. Shaw
 FACTS: O’Sullivan dove head first into shallow end of swimming pool. No markers
indicated depth of pool, yet diving board at deep end. Sustained injuries. Admits that he
knew he would get hurt if he hit the bottom and that was why he was trying to clear the
shallow end. Argues that defendant was negligence in allowing visitor to dive into
shallow end of pool and in failing to warn of the danger associated with this activity.
 HELD: For defendant. Land owners do not have to warn visitors against dangers that
are open and obvious to a person of reasonable intelligence.
Rowland v. Christian
 FACTS: Rowland was social guest in Miss Christian’s apartment. Porcelain handle of
bathroom faucet broke in her hand. Miss Christian knew about handle that was cracked,
but gave Rowland no warning about it.
 HELD: For plaintiff. Court abolished all categorical distinctions and decided to
adjudicate on “reasonably prudent person approach”
26
Duties of Medical and Other Professionals
These rules extend to other professionals, such as architects, lawyers, etc.
Medical Professionals
 Standard duty of care in medical malpractice= custom of the profession
o In regular negligence, custom is admissible, but not conclusive
 Therefore, always need an expert
o Jury= lay person with no expertise in the area need expert to explain what’s
going on
o “Conspiracy of silence”- doctors won’t testify against one another
o EXCEPTION: in obvious cases (i.e. surgeon amputates wrong arm)- no expert
testimony needed
 In addition to using expert to establish standard of care, must also ask “If defendant did it
right, in your opinion, would Ms. Smith have survived?”
o May be a “loss of chance” case
 Modified locality rule- standard of care is that which is commonly used by doctors at the
time of operation and in similar localities
o Less stringent version of strict locality rule, which measured defendant’s conduct
against that of other doctors in the same community
 Made in time when there was large disparity between rural and urban
doctors
o Majority of states follow this for primary care; specialists have “national”
standard of care
 Duty to disclose risks of surgery- see informed consent
Other Professionals
 Education- acceptance standard across country for all education levels= NO CAUSE OF
ACTION FOR EDUCATION MALPRACTICE’
 Mental health care providers (i.e. clinical psychologists, social workers)- owe duty of
customary practice
o Compared to each other, not psychologist to social worker
 Clergy- no duty or standard of care
o Yet as Pastoral role- similar to mental health professionals (clergy malpractice)
Walski v. Tiesenga
 FACTS: Doctor operated to remove Walski’s thyroid, but failed to locate and segregate
the laryngeal nerves, which resulted in the paralysis of her vocal cords.
 HELD: For doctor. Walski had burden of establishing defendant doctors were guilty of
malpractice and failed to introduce evidence of standard of care which defendants were
bound to. Dr. Berger testified only to his preference, not custom.
Vergara v. Doan
 FACTS: Vergana was born in small town in Indiana. Parents claim negligence on part
of doctor during his delivery that caused him severe and permanent injuries.
 HELD: Rejects modified locality rule- hold that a physician must exercise that degree of
care, skill and proficiency exercised by reasonably careful, skillful and prudent
27
practitioners in the same class to which he belongs, acting under the same or similar
circumstances. This standard uses locality as but one of the factors to be considered in
determining if the doctor acted reasonably.
Miller v. Loyola
 FACTS: AUC- educational malpractice re: “The Legal Profession”- ethics course
 HELD: LA does not recognize a cause of action for educational malpractice under
contract or tort law no standard of care/no duty
Smith v. Knowles
 FACTS: Husband suing doctor for deaths of his wife and unborn child. AUC- failure to
make timely diagnosis of Diana’s pre-eclampsia and treating it correctly.
 HELD: Plaintiff failed to offer sufficient expert evidence for jury to consider his claims
of negligence. No expert witness called- used medical textbook. (maybe could not get
expert- conspiracy of silence, attorney malpractice, $$, or maybe no medical malpractice
at all)
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Medical Malpractice: Negligence of Medical
Professionals
Duty: The medical standard of care
Breach: Use expert testimony or medical res ipsa
Medical Res Ipsa
ELEMENTS
1) Injury causing event does not occur in absence of negligence
2) Injury was caused by an agent or instrumentality in exclusive control of defendant (But
see Ybarra)
a. No longer a strict requirement
3) No act or negligence on defendant’s part contributed to the events





Involves reasoning backwards
More problematic than regular res ipsa because medicine is not an exact science.
Cannot use this theory when injury can be reasonably attributed to a pre-existing
condition, an allergic reaction, or some other frailty in plaintiff (Kelly)
Cannot use this theory when medical procedure carries with it inherent risk of a particular
kind of injury or complication, and the plaintiff suffers from that injury/complication
Expert testimony- allowed to bridge the gap between common knowledge of jury and
common knowledge of doctors (State v. Lourdes Hospital)
o Can show that injury is so obvious that jury does not need expert opinion
o Common knowledge (i.e. sponges left in body cavity or injury to something not
being operated on)
Kelly v. Hartford Casualty Ins. Co
 FACTS: Kelly claims she suffered injury when a nurse negligently administered an
enema.
 HELD: Her history of anal disease makes it impossible to say that the negligence caused
the rectal hematoma.
 NOTE: Wisconsin is only state where you bring cause of action against defendant’s
insurer, not the defendant.
State v. Lourdes Hospital
 FACTS: Plaintiff underwent surgery to remove an ovarian cyst, yet woke up with injury
to her right arm. Claims negligence on part of hospital for hyper-abducting her arm
during surgery. Defendant argues that doctrinal foundation of res ipsa can only lie in
everyday experience, and here, plaintiff must use expert testimony.
 HELD: Expert testimony may be properly used to help jury “bridge the gap” between its
own common knowledge and the common knowledge of doctors. Not surprising that
matters that are commonplace within a particular profession are foreign to general
population. Expert opinion does not negate jury’s ultimate responsibility as fact finder to
draw the necessary conclusion. Jury is free to determine whether the newly accepted
understanding supports the conclusion it is asked to accept
29
Ybarra v. Spangard
 FACTS: Ybarra went in to have an appendectomy, and came out with an injury to his
right arm. The condition of his arm severely deteriorated and he sued all the doctors and
nurses who helped with his surgery. Defendant argue that assuming plaintiff’s condition
was result of injury, no way to show that act of particular defendant, or any particular
instrumentality caused injury
 HELD: “Exclusive control” is no longer a strict requirement for res ipsa. Doctrine
cannot be so restricted that it does not apply to a patient who submits himself to care and
custody of doctors/nurses, rendered unconscious, and received injury from
instrumentalities used in treatment. Otherwise, could not recover unless the
doctors/nurses reveal who caused the injury. Therefore, all defendants who had control
over his body may be called upon to explain their conduct. Does not have to identity the
guilty person- enough that he suffered an injury while he was unconscious.
30
Informed Consent
Informed consent- owes patient duty to disclose risks of non-negligently performed surgery so
patient can make intelligent decision
ELEMENTS
1) Physician failed to comply with the reasonably prudent patient standard for disclosure
 Two options for disclosure
o Disclose what doctors customarily disclose
 Usually requires expert testimony
 Rationale-professional standard since malpractice case, may be therapeutic
reasons for withholding information, and adds little burden to plaintiff
since must produce medical testimony on other issues
 Overlooks purpose of requiring disclosure, protect patient’s right to decide
for himself
o Disclosure material information: what rational patient would want to know
 General Rule: physician owes to his patient the duty to disclose in a
reasonable manner all significant medical information that the physician
possesses or reasonably should possess that is material to an intelligent
decision by the patient whether the undergo proposed procedure
 Information a physician reasonably should possess = information
possessed by the average qualified physician (practicing in that specialty)
 What physician should know involves professional expertise and
can be proved only though testimony of experts
 Extent to which he must share that info with his patient depends upon
what information he should reasonably recognize as material to patient’s
decision
 Material determination is one that lay persons are qualified to
make without aid of expert
 Situations that call for non-disclosure- complicate procedure or render
unfit for treatment
2) The undisclosed risk occurred and harmed the plaintiff
3) A reasonable person under the circumstances would not have consented and submitted to the
operation or surgical procedure had he or she been so informed
 Causation- how can plaintiff prove that she would not have gone through with the surgery
if she knew about the risk?
o Objective test: Reasonable person would not have undergone the surgery
 Yet what happened to patient’s autonomy? (i.e. what if plaintiff is
abnormally scared)
 If this is the case, then the procedure should not exist
o Other courts have compromised- issue is judged by reasonable person standard in
light of plaintiff’s personal fears and religious beliefs
4) The operation or surgical procedure was a proximate cause of plaintiff’s injuries

Appropriate information might include
o Nature of patient’s condition
31
o
o
o
o
o
o



Nature of probability of risks involved
Benefits to be reasonably expected
Inability of physician to predict results, if that is the situation
Irreversibility of procedure, if that is the case
Likely result of no treatment
Available alternatives, including risks and benefits
 Drs not requires to disclose of all risks of proposed therapy or of
information that the physician reasonably believes the patient already has,
such as the risks inherent in any operation
Policy: Informed consent promotes or validates patient’s autonomy and promotes
patient’s rational decision making
Usually treat this as a negligence (not battery) claim
o Battery claim if plaintiff has not consented at all to procedure
Ghost surgery- if consent is limited to one surgery and another doctor comes in and
performs surgery
o Consent form typically gives consent to other interns/medical students (yet you
can specify that surgeon is the only one who touches you)
Harnish v. Children’s Hospital Medical Center
 FACTS: Harnish underwent operation to remove a tumor in her neck. During procedure,
hypoglossal nerve was severed, resulting in permanent and almost total loss of tongue
function. AUC: Failed to inform plaintiff risk of losing tongue function
 HELD: Reversed the dismissal (of the doctors).
Arato v. Aredon
 FACTS: Terminally ill patient is not told that death is coming soon. Mainly a financial
claim- did not get his affairs in order. Duty of doctor to share information includes duty
to share information about prognosis?
 HELD: CA court refuses to impose this standard, unless it is customary.
Truman v. Thomas
 FACTS: Doctor never told plaintiff about downside of declining pap smear. She dies of
cervical cancer.
 HELD: Dr. is obligated to share additional information if test is risk-free and patient
declines.
Howard v. University of Medicine and Dentistry of NJ
 FACTS: Plaintiff is suing doctor for battery and fraud. He went to Dr. Heary for spinal
surgery. Unsuccessful surgery quadriplegic. Allegedly doctor misrepresented himself,
yet doctor denies this.
 HELD: Court does not treat this like a battery. Fraud claim is not allowed either- this is
an issue of informed consent. Doctor does not have an affirmative duty to disclose his
credentials. Rather, he has a duty to not misrepresent and duty to disclose risk
information. This puts burden on plaintiff to ask about credentials.
32
Immunity= no duty
Family Immunity

Rationale for family immunity: 1) to permit suits between family members would
encourage fraud and collusion; 2) to permit suits would interfere with family
(compromise parental authority and discipline) and disrupt family harmony and immunity
o Judicial administrability argument- courts would not be about to tell which cases
are fraudulent
Until advent of modern approach, zero duty of care owed to family members


Spousal immunity
o Traditionally, wife could not sue husband
 With respect to property, she had no property until 1900s Married
Women’s Acts
 With respect to personal torts, married person= one person= the husband
(legal fiction)
o NOW: Every state allows law suits between husbands and wives
 ½ states completely abolished spousal immunity
 Other ½ partially abolished it (immunity for negligence but not intentional
torts or car accidents)
Parent child immunity
o Were allowed to sue parents for property torts (upper class)
o Physical battery/negligence issues never came up until 1891
 MI court said child could not sue parent patient-child immunity (zero
duty)
o Immunity ended when child reached age of majority, or when child was
emancipated. Some states have held that immunity ends if parents dies (resulting
in fact that parent’s estate could be sued)
o Now, slight majority of states of abolished child immunity
 Yet these states grant parents broad discretion in exercise of parental
supervision/authority
o Remaining states retain parent-child immunity but do not apply it in cases of
intentional tortious conduct, and in many of these states, in car accident cases (at
least to extent of insurance coverage)
NOTE: In places where immunity is retained, it is not applicable if family member is
fortuitously involved in injury-causing event (i.e. teenage daughter negligently drives car into
pedestrian who turns out to be her father)
Now the question is, what is the duty a parent owes a child
 Goller exception: Immunity is abolished except where:
1) The alleged negligent act involves an exercise of parental authority over the child
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2) The alleged negligence act involves the exercise of ordinary parents discretion with
respect to the provision of food, clothing, housing, medical and dental services, and other
care
 Therefore, duty is to refrain from reckless, wanton conduct- somewhere between zero
duty and reasonably prudent person
o Why a lesser standard than reasonably prudent person?
 With parents, don’t want to consider what other individuals would do.
Sense of not wanting to overstep parent’s discretion. Many decisions are
religious-based.
 Exceptions
o Some courts go beyond Goller standard and use a “reasonable parent” standard
o Other courts go the opposite direction re: immunity in negligent supervision
cases: NY formulation- parents owes no duty enforceable in tort to supervise
children adequately
Rousy v. Rousy
 FACTS: Father (on behalf of daughter) sues mother after injuries resulting from car
accident. Mom has insurance (so really Rousy v. Gieco). Gieco tries to argue parent
child immunity.
 HELD: Parent-child immunity abolished. Justifications for parent-child immunity:
Avoid disrupting family harmony/tranquility, avoid compromising parental
authority/discipline, avoid collusion and fraudulent suits. Judicial administrability
argument: will not be able to determine which cases are truthful.
Commerce Bank v. Augsburger
 FACTS: Child dies after being placed in a drawer.
 HELD: Plaintiff did not allege intentional tort. Immunity granted to cases of parental
discretion.
 NOTE: Illinois at this point did not have a reckless rule (following old rule- absolute
immunity).
Charitable Immunities



Charities used to not be held liable for their negligent acts (i.e. hospitals, YMCA)
o Logic was that organizations performed social good; did not want to make them
pay their hard earned money to one injured person
Yet now with insurance, charities can purchase it to give compensation to injured victims
Charitable immunity no longer exists in full: some states have adopted various
exceptions
o Only liable for capped amounts (max of $100,000 or insurance coverage)
o No liability where there is insurance
o No immunity for paying patients in hospitals immunity for charity patients
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Federal and State Government Immunities
Federal Immunity
 Historically, no tort suits were allowed against federal/state/municipality (common law:
sovereign immunity cannot sue government)
o Qualification to traditional government immunity: under due process clauses of
5th and 14th amendments, neither state nor federal governments may take private
property for public purposes without just compensation
 Problem: people would call up Congressman to get money- President has better things to
do than sign off on these
 End of WWII- passed statute FTCA- limited waiver of government liability
State Immunity
 Since states are sovereigns too, at one time, claimed sovereign immunity on the same
basis as did the federal government
 In 1960s and 1970s, courts and legislatures acted to abolish or limit immunity of states
and municipalities
o Most states follow federal model and waive tort immunity generally, retaining it
in particular, specified situations
o Smaller but significant number work in reverse, retaining immunity generally but
abolishing it in particular, specified situations
o Smaller number retain virtually complete immunity (i.e. Alabama)
Municipality Immunity
 Not sovereigns- rather, corporations chartered by sovereign
 Traditionally accorded immunity, yet over the years, courts created exceptions
o Liable for takings of property
o Liable for nuisances such as unsanitary garbage dumps, and for torts committed in
course of proprietary activities, as distinct from gov’t activities
 Sometimes covered under state tort claims statutes (therefore it parallels state government
immunity) while other states have separate immunity rules for municipalities
Immunity for public officials
 Applies to public officer carrying out his official duties when they involve discretionary
acts done without malice or improper purpose (no immunity for ministerial actsoperational level)
Federal Torts Claims Acts
 FTCA cases governed by state law
o i.e. in MD, no recovery if hit by federal vehicle while jay-walking because it’s
one of the five states with contributory negligence
 Key conditions on waiver of immunity
o Before filing suit in court, plaintiff must submit claim to government agency
involved
o Suit is not permitted until agency has refused payment or has delayed over six
months in making a decision on it
o Bench trial- no jury
o Must be brought in federal court, not state court
o No punitive damages
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
o No strict liability under FTCA
Exceptions from bar on immunity
o Not liable for number of specific torts
 Defamation/libel/slander/misrepresentation
 Assault
 Battery
 False imprisonment
 Others including malicious prosecution, abuse of process, interference
with contract
 Limitations on immunity for assault, battery, and the like
1. If an off-duty employee commits a battery, the government might
be liable for its negligence in fostering the risk (i.e. might be liable
for allowing an off-duty employee to take a government rifle)
2. Government might be liable for assault, battery, or false
imprisonment if it is committed by investigative or law
enforcement officers
o Judicially created exception: Ferres Bar
 Cannot sue for injuries “incident to service” in United States military
 Interpreted very broadly
 Jefferson- towel found in body cavity marked US Military
Property government found not liable
o Discretionary functions (Loge)
 Still immunity for discretionary/policy making functions of government
(even if discretion is abused)
 If we were to allow negligence on discretionary decisions, it would upset
the balance of powers. Would put federal judges before legislature. This
should become a campaign issue if it is a bad decision.
 More from Loge
 Government not immune from negligence re: not complying with
regulations- gov’t has no discretion to violate the law
 Government has no immunity when engaged in private function
(i.e. University of Wisco operating a dorm)
 Discretionary function= 1) There must be a judgment or choice; 2) The
judgment must implicate social, economic, or political policy decisions.
Loge v. United States
 FACTS: Two types of polio vaccine- one type will give vaccine to others who come into
contact with person who received it. Here, Todd gets live vaccine mother contracts
disease and becomes paralyzed. Sues United States. AUC: Not requiring drug
manufacturer to comply with previously issued regulations; choosing live or Sabin
vaccine instead of killed or Salk vaccine.
 HELD: Still give government immunity for discretionary functions. Cost benefit
analysis. Burden of using Salk vaccine- will not get the same coverage.
Maas v. United States
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

FACTS: Air force crash radioactive spill massive cleanup project. Increased risk of
cancer associated with exposure. Yet government did not inform those who worked on
Project Crested Ice about this increased risk.
HELD: Discretionary function exception bars plaintiff’s claims. Discretionary function1)There must be a judgment or choice 2) The judgment must implicate social, economic,
or political policy decisions
Riss v. City of NY- Immunities under state law
 FACTS: Linda Riss was terrorized for months by a rejected suitor. She repeatedly
sought protection from law enforcement. One day, Pugach followed through on his
threats and hired been to throw lye in her eye loss of vision and significant scarring on
face. AUC of City of NY: Failure to provide police protection.
 HELD: Affirms dismissal. City not liable yet doesn’t base the conclusion on idea that
this was discretionary. Court was unwilling to get involved because it involves allocation
of resources (yet this cannot be right, court routinely held cities liable for issues re:
resources) DeLong- once government and police agree to aid a specific person,
establishes duty.
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Nonfeasance/Misfeasance
Nonfeasance- doing nothing (no liability)
 No duty to act rule= one person owes another no duty to take active or affirmative steps
for the other’s protection
 Usually liability for misfeasance- negligence in doing something active- but not for
nonfeasance- doing nothing
o Misfeasance- how you conducted yourself in an action; something affirmatively
done
o Nonfeasance- whether you are obligated to take the action in the first place?
Exceptions and Qualifications to No Duty to Rescue
 Voluntary rescue: If you choose to rescue, you must rescue like a reasonably prudent
person under similar circumstances
o Cannot make a person worse off by abandoning the rescue (Wakulich v. Mraz)
o Yet if this rescue is danger to yourself, then you don’t have to rescue
 Special relationship duty to rescue person in peril (Farwell v. Keaton)
o Parent-child; school-student; doctor-patient; employer-ee; landowner-invitee;
carrier-passenger; innkeeper-guest; shopkeepers-patrons (and other relationships
in places of public accommodation)
 But if you see someone in peril and you mess it up misfeasance
o “Botched rescue” liability (thereby encouraging nonfeasance)
 Yet legislature has tried to insulate these people
o “Good Samaritan Laws”- different in every state
 Some exempt professionals (doctors, nurses, police) who voluntarily and
gratuitously render emergency treatment from liability for ordinary
negligence (still liable for gross negligence)
 One whose conduct (negligent or innocent) place another in peril- duty to use reasonable
care to aid/assist that person
 If a person knows or has reason to know that his conduct, whether tortious or innocent,
has caused harm to another person, then he has a duty to render assistance to prevent
further harm
 If a person has created an unreasonable risk of harm, even innocently, a duty of
reasonable care arises to employ reasonable care to prevent the harm from occurring
 If a statute or ordinance requires a person to act affirmatively for the protection of
another
Yania v. Bigan
 FACTS: Yania jumps into coal trench and drowns. Apparently Bigan teased him into
jumping? Bigan does nothing and Yania drowns. AUC: 1. Blandishments 2. Failure to
rescue.
 HELD: No general duty to rescue someone who is in peril (favors autonomy).
Blandishments were not an issue because he was a mentally capable adult.
Wakulich v. Mraz
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

FACTS: Mraz brothers offered Elizabeth Wakulich money to drink Goldschlager. Lost
consciousness and defendants did not seek and even prevented medical attention. Yet
they “helped” her by removing her dirty shirt and putting a pillow behind her head to
prevent aspiration.
HELD: Trial court erred in dismissing the suit. Acts indicated a voluntary assumption of
responsibility for decedent’s health/well being. Defendants failed to exercise due care in
that condition.
Farwell v. Keaton
 FACTS: Farwell was severely beaten and his friend “cared” for him. He later diedevidence showed that prompt medical attention could have prevented this.
 HELD: No duty to render aid without a special relationship. Here, they were
companions on a social venture. Implicit in such a common undertaking is the
understanding that one will render assistance to the other if he is in peril if he can do so
without endangering himself. Here, this is an informal relationship, but court
recognizes it.
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Duty to Protect From Third Persons
Plaintiff’s injury is caused by a third party source of harm. Plaintiff brings lawsuit against
defendant


Generally, no duty to protect third person from injuring another. Sometimes, affirmative
duty is imposed
Affirmative duty is function of
1) Relationship
2) Foreseeability
o 4 Approaches to Foreseeability
 Specific harm- landowner does not owe a duty to protect patrons from the
violent acts of third parties unless he is aware of specific, imminent harm
about to befall them
 Prior similar incidents tests- foreseeability is established by evidence of
previous crimes on or near the premises
 Totality of the circumstances- takes additional factors into account, such
as the nature, condition, location of the land, plus any other relevant
factual circumstances bearing on foreseeability. Criticized for placing a
greater duty on business owners to foresee risk of criminal attacks on their
property.
 Balancing test (cost benefit analysis)- foreseeability of harm and gravity of
harm balanced against burden of imposing a duty to protect against the
harm
Posecai v. Wal-Mart Stores
 FACTS: Posecai gets mugged in Sam’s parking lot.
 HELD: Relationship here is landowner-invitee. Landowners owe their invitees a duty to
protection from third party sources of harm only when it is foreseeable. Balancing test
Sam’s did not possess the requisite degree of foreseeability for the imposition of a duty to
provide security patrols in its parking lot.
Marquay v. Eno
 FACTS: Plaintiff’s claim that they were sexually abused by teachers and coaches. Sue
abusers and also higher-ups. Allegation- school should have known and they did
nothing.
 HELD: Children were in the “custody” of the school and insulated from protection by
their parents. Did defendant’s have duty to do something based on their relationship with
the plaintiffs? Yes, but limited to supervising personnel
 NOTE: Why can’t you use respondeat superior theory?
o Doesn’t apply to intentional torts…yet many exceptions
 i.e. Wal-Mart false imprisonment case- here, trying to advance company’s
agenda
o Applies to your boss, not your superior
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Reichert v. Atler
 FACTS: Castillo (plaintiff represented by Reichert) and Ochoa get into fight at A-MiGusto Lounge. Argument stopped when Castillo went into office to cash his check.
There, Castillo told bar employee that Ochoa is violent and carried a gun. When Castillo
returned, Ochoa shot Castillo and fled the scene. Lounge has reputation of most
dangerous bar and despite history of stabbings, shootings, and assaults, owners had no
professional security, and only one bouncer. AUC- failure of owner to protect patrons
from foreseeable harm.
 HELD: Atlers are only proportionally liable. Rule in Reichert: puts economic burden on
non-negligent plaintiff. Would mean that plaintiff can never recover all of its money.
Relationship with Third Party Sources of Harm



Relationship with third party sources of harm- may have enabled that person to commit
harm
o Negligent hiring (i.e. failure to do a background check)
o Negligent supervision (i.e. hospitals)
o Negligent entrustment
 Giving someone something that he is incapable of handling and he hurts
someone (dangerous instrumentality, i.e. car and intoxicated person)
Duty to control children?
o Parents are not liable for a child’s torts merely on the basis of parental
relationship alone
o Not liable for failure to control child merely because child is known to be rough
o Liable only for failing to control some specific dangerous habit of a child of
which the parents knows or should know in exercise of reasonable care
Duty to warn when it is custom- psychologists, lawyers, etc. (Tarasoff)
Tarasoff v. Regents of University of CA
 FACTS: Poddar tells his psychologist that he intends to kill Tatiana Tarasoff. Detained
briefly and released. Then actually does kill Tarasoff. AUC: Failure to warn plaintiff of
impending danger and failure to bring about his confinement.
 HELD: Court imposes duty to warn (when it is custom). Fear that this will erode all
psych. Communications is not plausible (misinterpreting the scope).
Brigance v. Velvet Dove Restaurant
 FACTS: Bartender serves underage kids- knew that Johnson was driving. Johnson gets
into accident and victim sues restaurant. Says the restaurant had a duty to protect him
from harm by not serving Johnson.
 HELD: Alcohol servers are liable. Duty to exercise reasonable care not to sell liquor to
noticeably intoxicated people.
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Breach (small “n” negligence)
When defendant’s conduct falls short of the level required by the applicable standard of care
owed to plaintiff, she has breaches her duty. To prove breach, must show that defendant acted
unreasonably (what we are trying to define here is the word “reasonable”)


Alleged unreasonable conduct
How to evaluate reasonableness
o Assessing risk and costs
 It is usually reasonable to do what is customary (Mathew)
 It is usually reasonable to value life over property (Mathew)
 It is usually reasonable to avoid greater damage (Mathew)
 No duty to warn against the obvious (Stinnett)
 It is reasonable to expect people to protect themselves (Stinnett)
 To extend that you believe someone can take care of themselves
(result from background), then doing nothing is acceptable
 Evidence of custom is admissible but not a conclusive, legally binding
standard of care (TJ Hooper)
 Passage of time
 In slip and fall cases, can prove negligence if substance has been
there for a relatively long time (Thoma)
 Violation of a statute (negligence per se)- establishes duty and breach
o Hand Formula B<PL (Carroll Towing)
 B= burden
 P= probability of loss
 L= cost of loss
Res Ipsa Loquitur- “the thing speaks for itself”
Fact that injury occurred ay establish a breach of duty owed
(Note: separate section on medical res ipsa)
ELEMENTS
1) Injury or accident is one that more often than not is caused by negligence
2) Injury causing instrumentality in exclusive control of defendant
 Need to make sure that you are suing the right person
 Contemporary view of control rule- flexible
o Way to establish that negligence was probably that of the defendant (Giles)
o Multiple defendants- if P can show that at least one was in control, some courts
allow recovery
3) Plaintiff did not contribute to the injury
 Kind of a subset of (2)

No direct evidence of what happened/defendant’s conduct
o “Partial explanation” (Widmyer)
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



While res ipsa is a case of “pure and utter ignorance”, you may offer
actual direct explanation of one possible explanation and also argue res
ipsa
Superior knowledge (Widmyer)
o Some courts say or imply that res ipsa cannot be invoked unless the defendant has
superior knowledge (one def- defendant exercises exclusive control over the
instrumentality at issue)
Ways to prove this
o Prove accident and rely on general experience (Byrne)
 Argue that jury could use common knowledge to conclude the negligence
more likely than not caused the injury
o Offer evidence ruling out alternatives
o Expert testimony (Persinger)
Effect of res ipsa
o No directed verdict for defendant
 Doctrine does not change burden of proof, nor does it create a
presumption of negligence. When res ipsa element has been proved,
plaintiff has made a prima facie case and no directed verdict may be given
o Effect of defendant’s evidence of due care
 Effect of defendant’s evidence that due care was exercised has the same
effect in a res ipsa case as in all cases- jury may find for defendant if his
evidence overcomes the permissible infere3nce that may be drawn from
res ipsa proof.
Elements above different from restatement elements
o 1) event is of a kind which ordinarily does not occur in absence of negligence
o 2) other responsible causes, including the conduct of the plaintiff and third
persons, are sufficiently eliminated by the evidence
o 3) the indicated negligence is within the scope of the defendant’s duty to the
plaintiff
Indiana Consolidated Insurance Co. v. Mathew
 FACTS: Mathew went across street to get brother’s mower and mow both their lawns.
Went into brother’s garage and filled lawnmower ¾ full using a funnel (not spilling any).
When he started the mower, he noticed a flame= shut engine off, but fire continued to
grow and machine started spewing gasoline. He ran home to call the fire department and
the garage was totally engulfed in flames when he returned.
 HELD: Mathew did not act negligently. Not negligent in filling the tank, starting the
mower in the garage, or failing to push flaming mower outside. Sudden emergency
doctrine also applies- not chargeable if acts according to best judgment.
Stinnett v. Buchele- not unreasonable to fail to protect someone who can protect himself
 FACTS: Buchele hired Stinnett as farm laborer- Stinnett was severely injured when he
fell from the roof while applying coating with a paint roller. Not covered by worker’s
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
comp- agriculture worker. Buchele’s AUC: failure to provide a safe working
environment- did not provide safety belts or nets
HELD: No negligence on Buchele’s part. Stinnett had painted barn roofs before,
sometimes using safety belts and nets. Stinnett did not ask Buchele to purchase a safety
net for him, nor did he check to see if one was available.
Bernier v. Boston Edison
 FACTS: Minor car accident 69 year old woman Alice Ramsfell loses control of her
car and knocks down a electric light pole owned by Boston Edison, which comes down
on the legs of Bernier. AUC: Edison failed to design a pole that was accommodated
reasonably to foreseeable vehicular impacts so as to avoid pedestrian injuries.
 HELD: Boston Edison acted negligently. Foreseeable risk of cars colliding with #6 poles
known to company, yet no serious precautions were taken to guard against risk of
pedestrian injury. Could have taken simple and cheap measures to improve strength of
the pole. Reasonable people take cost-efficient precautions to protect against catastrophic
risks.
United States v. Carroll Towing Co.
 FACTS: Carroll Towing company negligently caused the barge Anna C (owned by the
Connors company containing US flour) to break adrift- it was carried into a tanker and
sunk. The bargee was not on board- if he was there, the towing company employees,
who had pumps available, could have saved the Anna C. AUC: failure to have a
backup/relief bargee.
 HELD: Yes, Carroll Towing was negligent in not having a backup bargee on board.
Bargee was gone for 21 hours- had no excuse for his absence and should have known that
the barge might be moved inadequately during the working hours. Duty to provide
against injuries is function of three variable: B<LP.
HAND FORUMLA: If B<LP and defendant retrains from taking precautions, the
defendant is negligent
 B= burden of adequate precautions (cost of precaution, inconvenience, allow an
alternate harm to occur)
o Some burdens are hard to monetize *cost of information, cost of memory)
 P= chance that harm will occur in absence of precaution that we are debating
o In most cases, this is just a guess
 L= value of barge and cargo
 Shift from property loss to personal injury Hand formula doesn’t really work
o Maybe it just provides guidance, not algebraic formula
 Actor only needs to consider those risks that would be taken into account by a
reasonable person
o That is why courts discuss whether the harm is foreseeable- limit liability to
cases in which actor can recognize the risk or danger
Thoma v. Cracker Barrel Old Country Store
 FACTS: After breakfast, Thoma got up from table, took 3-4 steps and then slid and fell
in a common aisle. She claims to have slipped in a 1x2 foot area containing drops of
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
clear liquid. Was in restaurant for 30 minutes before the accident and did not see anyone
drop anything in the place that she fell.
HELD: Thoma’s inferences about the situation are feasible enough to reverse summary
judgment. To recover for slip and fall, must show that owner either created a dangerous
condition or had actual or constructive knowledge of that condition. (in the exercise of
reasonable care, the condition should have become known to the premise owner). While
nobody saw anyone spill anything, from Thoma’s description, the employees should have
noticed the allegedly spill before Thoma fell. For jury to decide what’s going on.
Wal-Mart Stores v. Wright
 FACTS: Wright slipped in puddle of water at Outdoor Lawn and Garden Corral in WalMart. AUC: Not maintaining, caring for, and inspecting the premise. Wright submits
store manual as evidence of ordinary care.
 HELD: No negligence. Just because Wal-Mart has established certain rules and policies
for its employees, this is not evidence of ordinary care. Wal-Mart’s policies may exceed
ordinary care. Law has also recognized that failure to follow party’s precautionary
steps/procedures is not necessarily failure to exercise ordinary care- rather, encourages
following best practices without establishing them as legal norm.
The T.J. Hooper- custom
 FACTS: Barges 17 and 30 were being tugged by petitioner and lost off Jersey coast in
easterly gale. Discovered that tugs’ private radio receiving sets by which they could have
got seasonable warning of change in weather were not working. AUC: Defendant did not
have working radios. Yet defendant makes custom argument.
 HELD: Hand trumps custom argument here! Was not general custom among coast wide
carriers to equip their tugs with radios- only one line did, the rest relied on their crew to
bring sets. Yet adequate receiving sets were cheap and reliable and while it was not
custom, had the tugs been properly equipped, they would have gotten the Arlington
reports. Therefore, injury was direct consequence of unseaworthiness.
Res ipsa cases
Byrne v. Boadle (origin of res ipsa)
 FACTS: Bryne was walking when he lost all recollection. Witnesses say that a barrel of
flour fell on him from a shop window. AUC: Defendant did….?
 HELD: For Bryne. Mere fact of accident is evidence of negligence. Under strict rules,
plaintiff must specify the bad conduct (breach). Here, happening of accident substitutes
for direct showing of evidence- satisfies breach element.
Warren v. Jeffries- offer evidence ruling out the possibilities
 FACTS: Jeffries was parked in Warren’s yard (family of 12) for hour before accident,
during which nobody touched the car. Mother needed to run out- she and 5 children
headed out to car when Terry gave mother his glasses to put back in the house. 5
children got in rear of car- did not touch any control mechanisms. Terry was last to get in
and when he shut the door, something clicked and car started rolling back towards large
ditch. Tried to jump out of car- when Terry did, front wheel ran over his body.
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
Defendant allegedly negligent in (1) failure to set the hand brake; (2) failure to engage
transmissions; (3) failure to maintain brakes
HELD: Res ipsa does not apply- rules for defendant. List all possible causes of accident
(mechanical malfunction- of which defendant was aware and of which he was not aware,
parked car without setting hand brake and curbing wheels, 3rd party tampering- of kids
and of neighbor??) Cannot rule that it was more probable than not that defendant’s
negligence caused the accident (plaintiff wants to rule out those causes that could not
have been a result of defendant’s negligence to shift probability that defendant’s
negligence more likely than not caused the accident or injury).
Persinger v Step by Step- expert testimony
 FACTS: James, in good health, was called by his teacher to come to storytime.
Allegedly, he fell while running, twisting his leg as he hit the ground on carpeted area
with no items on floor.
 HELD: Case may go to jury. Expert testimony introduced proves that fracture resulted
from significant twisting that would not have happened from a fall. This sort of injury
does not occur in absence of someone’s negligence (maybe his foot was caught in crib
slat or he fell from a greater height). It is possible that he twisted it himself (i.e. in crib)
but res ipsa doesn’t require elimination of all other possible occurrences.
Widmyer v. Southeast Skyways
 FACTS: Plane crashes, killing everyone. Negligent explanations include pilot error,
poor maintenance, failure to take precautions against weather. Non-negligent
explanations would be sudden, undiscoverable mechanical failure, sudden onset of bad
weather. Superior court denied use of res ipsa because Skyways lacked superior
knowledge as to the cause of the crash (neither party had superior knowledge because
both ignorant of the facts which occurred immediately prior to the crash). Issue: if offer
actual, direct evidence of one possible explanation, can you also argue res ipsa?
 HELD: Lack of res ipsa instruction was an error. Court says you can play it both wayshave not offered a complete explanation. No cases that show that superior knowledge on
the defendant’s part is necessary. Also, Skyways clearly had superior knowledge, not
about the crash (since there are no survivors), but about the maintenance about the plane,
pilot’s history. Plane crashes normally do not happen without negligence.
Giles v. City of New Haven
 FACTS: Plaintiff was elevator operator for 14 years in New Haven. Compensation
chain hooked on rail on elevator shaft wall and then broke. Car shook and Giles
sustained injuries while trying to get out of car. Defendant had longstanding and
exclusive contract with building owner to maintain and inspect the elevator. Defendant
argues that mis-operation would be the only feasible explanation for the chain hitting the
wall (i.e. rapid reversal of directions). Defendant argues against res ipsa- plaintiff had
control over elevator and its movement.
 HELD: May submit res ipsa to the jury. Court never held that any use whatsoever of the
instrumentality by the plaintiff would automatically preclude application of res ipsa.
Reflects growing trend in res ipsa- not to apply “control” condition in a fixed,
mechanical, rigid rule
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Factual Causation (but-for)
“But-for” test: But-for the breach, the accident would not have occurred (In other words, if the
defendant had not acted negligently, the plaintiff would be free from injury)
 Building on the breach…was the breach a factual cause?
o Imagine alternate situation where defendant doesn’t commit the breach

Merged causes v. sequential causes
o Merged- occurred at same time (or don’t know which occurred first) to bring
about an injury, each of which would have been enough by itself to cause the
harm
 Substantial factor test: if one of the causes was a “substantial factor” in
bring the harm about, it’s deemed a cause-in-fact even though the other
cause could have sufficed alone
o Sequential causes
 Use loss of chance doctrine/loss of opportunity doctrine
 P only receives damages for lost opportunity, not entire injury if D
deprives P of substantially better outcome
 Loss of opportunity doctrine- medical malpractice form of
recovery that allows P, whose preexisting injury or illness is
aggravated by negligence, to recover for lost opportunity to obtain
a better degree of recovery
 Pre-emptive cause
 Alternate Anderson: RR fire destroyed Anderson’s property on
Tuesday, another fire destroyed property on Wednesday RR
only liable for one day (since house was doomed)
 Alternate Landers: Tues- TX Salt Water put salt in Lander’s pond,
Wed- Sun Co. put salt in pond TX Salt is fully liable
o Different if dealing with natural disasters or man-made
cause!!
o Neither merged nor sequential- When multiple defendants commits substantially
similar acts, one of which caused the plaintiff’s injury, the burden of proof shifts
to the defendants to show that he did not cause the harm (Summers)
 Applies in causes where the but-for test fails, and both defendants were
negligent, yet no way to distinguish acts of the two
 Alternative factors test
Liability of two or more persons
Two people (with two sets of negligent conduct) causing a single indivisible injury
 Because we cannot apportion liability by causation (don’t know who caused what), we
must use some form of fault apportionment
 Each is liable for entire harm
 Two forms of fault apportionment
o Jointly and severally liable (with possible contribution): where 2 defendant’s are
negligent, and the negligence leads to a single indivisible injury, they are
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jointly and severally liable if each breach was a substantial factor in causing
the injury (even if they did not act in concert)
 Each defendant is liable for entire harm (therefore P can collect entire
amount from any D or divide it up how he wants)
 Contribution in classical approach: each D owes equal share
 If D1 pays out-of-pocket full damages, can sue D2 for contribution
 Means that the solvent tortfeasor might end up paying the insolvent,
uninsured, or immune tortfeasor’s share
o Proportionate fault liability/several liability/comparative fault liability
 No tortfeasor is liable for more that his proportionate share (P can still
collect entire sum from D1, who may then collect contribution from D2)
Two people causing separate injuries
 Each is liable only for the injury that he caused and no more
o Fault apportionment rules are not needed because liability can be apportioned by
causation
Two people acting in concert (an agreement)
 Jointly and severally liable for entire injury, even if injury is divisible
Saliento v. Nystrom
 FACTS: Anna had an x-ray of her lower back/abdominal area after a car crash.
Unknown to Anna, she was 4-6 weeks pregnant at the time, but nobody there asked her if
she was pregnant. After discovering that she was in fact pregnant, OB/GYN tells her to
terminate the pregnancy due to possible damage to fetus (it was dead at time of abortion).
Issue: Was Doctor’s failure to ask Anna whether she was pregnant or date of her last
period the cause of the injury?
 HELD: For defendant. Omission was not cause of injury because Anna herself said that
she would have said she wasn’t pregnant if she had been asked.
NOTE: Changing the breach changes causation analysis. i.e. AUC= failure to give Anna a
pregnancy test.
Landers v. East Texas Salt Water Disposal Co. (and Sun Oil Company)- merged causes
 FACTS: Landers owned small lack with fish. Pipe lines of ETSWC broke deposited
salt water into his lake and killing fish. On or about the same day, other defendant, Sun
Oil Co also caused large amounts of salt water and oil to flow into lake. Issue: are they
jointly and severally liable?
 HELD: Yes. Previously, because they did not act in concert, it would be impossible for
Landers to collect damages through joint and several judgment when injury is indivisible.
Therefore, overrules prior case that said that defendants are not jointly liable if they acted
independently of each other. New rule: when tortuous acts of two or more wrongdoers
join to produce an indivisible injury (injury that cannot be divided with reasonable
certainty to individual wrongdoers), all wrongdoers will be held jointly and severally
liable for entire damages.
Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway- merged causes
 FACTS: Anderson’s property was burned, allegedly by a fire that RR allowed to smolder
for 2 months before the damage. RR offers proof that other naturally causing fires were
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
coming from same direction and these fires might have originated from other, nonnegligent causes.
HELD: For plaintiff. Trial court did not err in refusing to instruct the jury that defendant
if not liable if damage was caused by a number of fires combing if the other fires of no
responsible origin were of sufficient and superior force that they would have produced
damage to the property regardless of the RR fire. If this Cook doctrine was applied, and
two fires merge, one of unknown origin, then there is no liability. This can’t be right!
Dillion v. Twin State Gas and Electric Company- sequential causes
 FACTS: Defendant utility company maintained uninsulated wires across a bridge, which
boys habitually climbed on. Dillon, age 14, was climbing on the bridge’s steel girders,
and lost his balance. He grabbed the electric wire to save himself from falling and was
electrocuted. AUC- failure to insulate the power lines (to prove this, prove that a
reasonable company would have insulated the wires. i.e. did power company know that
boys habitually climbed bridge?) Two causes of accident: defendant’s AUC and
plaintiff’s conduct- NOT MERGED.
 HELD: Remanded back t o the jury. Asked to determine which scenario was applicable
(doomed at time he grabbed the wire- company cost him 2 seconds of life; would have
been maimed from fall- company cost him life as severely disable person; he would’ve
regained balance)
Summers v. Tice- neither merged (only one bullet hit eye) or sequential causes (not able to figure
out which went first)
 FACTS: 3 men quail hunting. Both defendant’s shot at the quail, one shot hit plaintiff’s
eye, the other hit his lip. Shot to eye was the major factor in damages- could have only
come from one defendant. Yet plaintiff cannot prove which defendant was more likely to
have caused the accident- cannot establish causation.
 HELD: Burden to proof shifts to defendants. Both jointly and severally liable if they
cannot figure out who did it. Unfair to make plaintiff determine which defendant was
wrong (both could escape, leaving plaintiff remediless). Policy and justice reasoning
shifts shift to defendants to absolve themselves if they can.
Lord v. Lovett
 FACTS: Plaintiff suffered broken neck in car accident- alleges that defendant negligently
misdiagnosed her spinal cord injury and thereby failed to immobilize her properly and
administer steroid therapy. Deprived of opportunity for substantially better recovery.
Issue: Can plaintiff claim loss of opportunity?
 HELD: Yes. May recover for loss of opportunity injury in medical malpractice cases
where defendant’s alleged negligence aggravates plaintiff’s preexisting injury such that it
deprives plaintiff a substantially better outcome. Other courts have different approaches.
Loss of opportunity is not intangible- can be calculated through expert testimony.
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Proximate cause (legal cause)
Immediate effect of an incident can have effects until the end of time (butterfly effect)- where
does it end? Legal system cannot trace ripples from negligent event forever. Where is the
stopping point?
Conduct is deemed to be the proximate cause of harm if the harm was a foreseeable result
of the conduct, and the harm was not brought by an unforeseeable sequence of events.
TEST
 Got to AUC and figure out what risk are associated with that conduct
o Yet risk cannot be that someone will get hurt- must be specific
 Compare those risks to the actual harm that occurred
 Short-cut= SURPRISE
o If outcome is surprise, then you may have a proximate cause issue

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Foreseeability will limit liability on both who and what
EXCEPTION to person within the risk rule (Palsgraf)
o Rescue Doctrine (Cardozo): Danger invites rescue (Wagner v. International
Railway)
 Rescue is foreseeable as matter of law
Intervening cause- cannot occur before defendant’s breach
o if it eliminates the liability of the defendant, then it is a superseding/supervening
cause
Terminated risk- defendant’s conduct created a risk but that risk was no longer existent
General rule= defendant is liable for all harmful results that are the normal incidents or
and within the increased risk caused by his acts (based on FORESEEABILITY)
Direct cause- uninterrupted chain of events from time of defendant’s negligent act to
time of plaintiff’s injury
o Foreseeable harmful results- defendant liable
 Unusual manner in which injury occurred is irrelevant to liability- as long
as harm suffered by P is of the same general sort that made D’s conduct
negligent
 NOT ALWAYS- inconsistency as to whether the “how”
counts…most courts find that how the injury occurred does not
matter
 Unusual timing of cause and effect is irrelevant to liability
o Unforeseeable harmful results- defendant not liable
 EXCEPTION: Egg-shell skull doctrine
 once P suffers foreseeable impact or injury, even if it is minor, D is
liable for any additional unforeseen physical consequences
 “D takes P as he finds him”
o Unforeseeable plaintiff- defendant not liable
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
EXCEPTION: fact that injury to particular P was not foreseeable is
irrelevant, as long as P is a member of a class to which there was a general
foreseeability of harm
Intervening cause- force which takes place after defendant’s negligence and combines with the
negligence to create plaintiff’s injury
Test: If D should have foreseen the possibility that the intervening cause (or one like it) might
occur, or if the kind of harm suffered by P was foreseeable (even if the intervening cause was not
itself foreseeable), D’s conduct will nonetheless be the proximate cause. But if neither the
intervening cause nor the kind of harm was foreseeable, the intervening cause will be a
superseding one, reliving D of liability
 Superseding cause: intervening cause sufficient to prevent defendant from
being negligence
 Foreseeable results, foreseeable intervening force- defendant liable
o Dependent intervening forces- normal responses or reactions to situations created
by defendant’s negligent act/often risk of a particular kind of intervening cause is
the very risk which made the defendant’s conduct negligent in the first placealmost always foreseeable
 Subsequent medical malpractice- original tortfeasor is usually liable for
the aggravation of plaintiff’s condition caused by the malpractice of
plaintiff’s treating physician
 Negligence of rescuers- rescue is foreseeable response to accident or
injury; original tortfeasor still liable when injured person is hurt more by
rescuers or rescuer is hurt (true even if rescuer is negligent)
 Unless performed in grossly careless manner
 Cardozo: “Danger invites rescue”
 Efforts to protect person or property- defendant is liable for negligent
efforts on part of persons to protect life or property of themselves or third
person endangered by defendant’s negligence
 Reaction forces- where defendant’s actions cause another to “react” (i.e.
negligently firing a gun at someone’s foot), liability attaches for any harm
inflicted by the reacting person on another
 Subsequent disease- original tortfeasor liable for diseases caused in part by
weakened condition in which defendant has placed plaintiff in by
negligently injuring her
 Subsequent accident- when plaintiff suffers a subsequent injury following
her original injury, and the original injury was a substantial factor in
causing the second accident, original tortfeasor usually liable for damages
arising from second accident
o Independent intervening forces
 May be foreseeable where defendant’s negligence increased the risk that
these forces would harm the plaintiff
 Negligent acts of a third person- defendant is liable for harm
caused by the negligence of third persons where such negligence
was a foreseeable risk created by defendant’s conduct
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
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o i.e. D negligently blocked a sidewalk, forcing P to walk in
the roadway, where he is stuck by negligently driven
driver. D is liable to P.
 Criminal acts and intentional torts of third persons
o If defendant’s negligence created a foreseeable risk that a
third person would commit a crime or intentional tort,
defendant’s liability will not be cut off by the crime or tort
 i.e. Parking lot attendant negligently left keys in P’s
car and doors unlocked, allowing thief to steal it.
He is liable.
 Acts of God
o Will not cut off defendant’s liability if they are foreseeable.
 i.e. Roofer negligently left hammer on roof and P
struck by hammer when strong wind blows it off
roof. Roofer is liable.
Foreseeable results, unforeseeable intervening forces- defendant usually liable
o Intervention is neither foreseeable or normal, but leads to the same type of harm
as that which was threatened by defendant’s negligence- defendant liable
 Most courts will find liability here because they give greater weight to
foreseeability of result than to foreseeability of intervening force
 EXCEPTION: When intervening force is an unforeseeable crime or
intentional tort- then it is deemed a superseding force- cuts off
defendant’s liability
 EX: D fails to clean residue out of oil barge, leaving it full of
explosive gas.. Negligence exists because an explosion resulting
in harm was foreseeable. Yet unforeseeable bolt of lightning strike
barge causing explosion. D is liable.
o BUT if arsonist caused explosion, no liability.
Unforeseeable results, foreseeable intervening forces- defendant not liable
Unforeseeable results, unforeseeable intervening forces- defendant not liable
o Superseding- intervening forces that produce unforeseeable results (i.e. results
that were not within the increased risk created by defendant’s negligence)
 Breaks the causal connection between defendant’s initial negligent act and
the ultimate injury
Medcalf v. Washington Heights Condos- about what risk
 FACTS: Woman outside condo was mugged while waiting for her friend to let her into
condo- intercom was broken. AUC: Failure to maintain intercom.
 HELD: For defendant. While broken intercom may but-for cause, it was not a proximate
cause. The harm that occurred (mugging) was not a foreseeable consequence of
defendant’s negligence. The foreseeable risk was value of lease, not crime.
Palsgraf v. Long Island RR- about which victims
 FACTS: Palsgraf was on platform buying a ticket when two men were running to catch
on train on that platform. Man running to catch train was aided by guards; in process,
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
dropped indiscrete package of fireworks which caused explosion. Explosion threw down
some scales at other end of platform many feet away. Scale hit Palsgraf.
HELD: Defendant was not negligent. Disagreements between majority and dissent
Organizational
Substantive


Cardozo majority
Andrews dissent
Limits on duty- makes liability Proximate cause- owe
not infinite
everyone a duty yet can only
recover if what happened to
them was a proximate result
Multi-factor approach
Foreseeability
“practical politics”
Both believe that liability is not infinite
o Disagreement over what factor limits liability
Most courts mix and match take-away: NO LIABILITY IF NOT WITHIN THE RISK
Hughes v. Lord Advocate- harm outside scope of risk because of manner in which it occurred?
 FACTS: Workers left open manhole unguarded, covered with tent and surrounded with
kerosene lanterns. Boys climbed into manhole, knocked lantern into hole.
Unforeseeably, kerosene vaporized large explosion. Hughes fell into manhole and
suffered severe burns. Defendants argue that burns were foreseeable, but vaporization
and explosion were not, therefore no liability because lamps acted in unpredictable way.
 HELD: In favor of plaintiffs. Just because the foreseeable outcome (burning) did not
occur in a foreseeable manner, the outcome was the same as the risk. Defendant’s try to
narrow the scope of the risk (risk= someone could get burned by touching the lamp) yet
this is denied.
Doughty v. Turner Manufacturing- opposite decision from Hughes
 FACTS: Worker knocked asbestos and cement cover into vat of molten liquid. The
cover sank without a splash, but few minutes later, erupted and injured plaintiff.
 HELD: For defendant. Court here says that Hughes does not apply. The risk was
someone could get scolded by a splash. The outcome was someone got scolded by
bizarre chemical reaction/eruption.
Gaines-Tabb v. ICI Explosives
 FACTS: T1= Defendant’s original breach= mislabeling explosive grade AN as fertilizer
grade AN; T2- McVeigh and Nickels- intervening intentional tort/crime; T3- OK city
bombing. Issue: proximate cause between defendant’s careless act of mislabeling and
resulting injuries (bombing)?
 HELD: No proximate cause- it was not foreseeable that AN would be used for a bomb.
Therefore, McVeigh and Nickel’s intervening act was a superseding cause.
Derdiarian v. Felix
 FACTS: Felix was installing an underground gas main, hired Bayside Pipe Coaters to
seal the mains. Derdiarian worked for Bayside- Felix made him set up kettle of liquid
enamel on side of oncoming traffic. Protected by single wooden horse barricade and use
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of single flagman. Driver who had neglected to take his epilepsy medicine had seizure
and crashed car into worksite, igniting Derdiarian into a ball of fire.
HELD: The intervening act did not break the causation chain. The injury (getting hit by
a negligent driver) was within the risk of an unsafe worksite.
Sheehan v. City of NY
 FACTS: Sheehan stopped at intersection to let off passengers yet did not pull over into
far right area near curb. Then, a garbage truck crashed into the bus due to brake failure.
Novak was injured.
 HELD: Bus driver’s failure to pull over the bus to the loading area was not the proximate
cause of the accident. Case should have been dismissed. Court held that the sanitation
truck’s break failure was sole proximate cause of injuries.
Ventricelli v. Kinney Rent-A-Car
 FACTS: Kinney leased Ventricelli car with defective trunk lid that did not properly
close. As Ventricelli tried to close the lid while it was parked on the street, Maldonado’s
car jumped ahead and run into Ventricelli.
 HELD: For Kinney. This was not within the scope of the risk. The foreseeable risk was
that there would be obscured vision. Kinney’s negligence did not place Ventricelli in a
heightened risk because he could have just been getting something from the trunk.
Marshall v. Nugent
 FACTS: Marshall was a passenger in a car that was hit by an oncoming truck as it was
driving up an icy hill. Truck driver stopped to help pull the car back onto the road- in
doing so, he blocked the road. Marshall went to top of hill to flag approaching drivers.
Nugent was driving down the hill and tried to avoid the truck, causing him to crash into
Marshall. Issue: was truck driver the proximate cause.
 HELD: District court did not err in refusing to grant a directed verdict for truck driver.
His negligence could very well have been a proximate cause. Negligent driving has a
variety of risks- unfolding events between culpable act and plaintiff’s injuries may be
bizarre, but defendant may still be liable. The risk was not terminated yet- if Marshall
had gotten into car accident five miles down the rule, the truck driver would not be liable.
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Damages
Must suffer actual harm or injury
NOTE: Nominal damages are not available in negligence (only in intentional torts)
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2 rules
o 1) No damages= no jury case
o 2) Doctrine in tort law= cannot recover in negligence for “pure economic loss”
 i.e. fisherman cannot sue oil tanker for spilling oil no work for 3 weeks
 Huge exception for preexisting commercial relationship
 i.e. attorney forgets to file patent application and client loses
trademark can recover here
2 kinds of damages
o Compensatory damages- to give you back what you lost
 Economic/pecuniary damages “specials”
 Out of pocket expenditures that have been made or will be made
by plaintiff
o Lost wages, medical monitoring (controversial), medical
expenses, extras?- mowing lawn
 Non-economic/non-pecuniary damages
 Pain and suffering
 More than just physical pain- reduced quality of life,
mental/emotional suffering
 Where lawyer fees come from
 Most cases require that person be aware of loss of enjoyment to
collect damages
o Punitive damages- punishment/sanction against defendant
 Only for intentional or reckless torts, not negligent torts
Damage caps- numerous jurisdictions have these- “tort reform”
o Usually only have cap on non-pecuniary damages
o Some states have caps on certain types of cases
o Some caps go up every year, some are fixed
o Several courts have found capping statutes to be unconstitutional
Damages require predicting the future- what quality of life is the person missing out on?
Two imponderables
o Downward adjustment for investment returns (reduction to present value)
o Upward adjustment for inflation
 Experts perform these calculations
Structured settlement= adjustments not necessary because instead of lump sum, payments
would be given in periodic payments that could be varied according to inflation
Per dium argument- allowed in some jurisdictions
o Imagine pain for a minute…day…year- how much would they have to pay you to
suffer that pain?
Comparative awards
o Some states (NY) consider comparable cases determinative; other states argue
that each case should be considered on its own
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Martin v. United States
 FACTS: Two boys injured while riding a motorcycle, which got caught on sagging power
line- suing government as private party under Federal Torts Claims Act
McDougald v. Garber
 FACTS: Emma McDougald suffered oxygen deprivation during a C-section which left
her in permanent comatose condition.
 HELD: Damages are for a compensatory purpose, and if someone has injures which
preclude any awareness of the loss, those damages do not serve a compensatory purpose.
Cognitive awareness is prerequisite to recover for loss of enjoyment of life (despite the
fact that this creates a paradox where the greater the brain injury, the less the person can
recover. Also hedonic damages (compensation for losing the goodness of a normal life)
are not a separate category from pain and suffering.
State Farm v. Campbell
 FACTS: Campbell was driving with wife, decides to pass 6 vans ahead of them on twolane highway. Ospital was approaching from other direction. To avoid hitting Campbell,
swerved and ended up hitting Slusher. Ospital was killed, Slusher permanently disabled.
Campbell’s insurance company decided not to settle within policy limits, took case to
trial and told Campbells that their assets were safe. Jury verdict rules against Campbellsordered them to pay much greater amount that policy limits. State Farm wouldn’t pay
difference- Campbells pursued bad faith action against State Farm, working with Slushers
and Ospitals. Utah Supreme Court ultimately upholds $145 million punitive damage
award and $2.6 million compensatory award.
 HELD: The $145 million punitive award was grossly excessive- there are procedural and
substantive constitutional limits on these awards. Concerns about imprecise manner in
which punitive damages are awarded led to creation of 3 guideposts (Gore): 1. Degree of
reprehensibility of defendant’s misconduct 2. Disparity between the actual or potential
harm suffered by plaintiff and the punitive damages award (ratio usually 2-4x) 3.
Difference between the punitive damages awarded by jury and civil penalties in
comparative cases
 Note: Bad faith failure to settle within policy limits.
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Defenses to Negligence: Contributory Negligence

Contributory negligence= plaintiff’s fault is bar to recovery (Butterfield)
o Never occurred to them that the damages could be split
o Doctrine has been abandoned by vast majority of jurisdictions- only 5
jurisdictions retain this rule
“Ameliorative Doctrines”- soften absolute bar to plaintiff’s recovery if he was indeed
contributory negligent (traditional exceptions to contributory negligence bar in comparative fault
regime)
 Note- in 46 other regimes, these doctrines are just evidence of defendant’s negligence
 Last clear chance or discovered peril
o Last clear chance: If defendant discovered or should have discovered the
plaintiff’s peril and reasonably could have avoided it, the plaintiff’s earlier
negligence would neither bar nor reduce the plaintiff’s recovery
o Discovered peril: Applied these rules only if the defendant actually did discover
plaintiff’s peril
o These could only be used when plaintiff was helpless (if he could extricate
himself from danger at any time, defendant did not have the last chance to avoid
injury)
o Classic example
 1) Defendant negligent- fails to fix railroad crossing
 2) Contributory negligence by plaintiff- drunk driver falls asleep on the
tracks
 3) Third act by defendant- able to avoid accident but doesn’t- RR
conductor not paying attention, failed to pull emergency break because not
keeping a lookout
 Plaintiff not barred, DEFENDANT FULLY LIABLE
 Defendant’s reckless or intentional misconduct
o Contributory negligence was historically no defense to an intentional tort and by
extension, courts held that contributory negligence was no defense to willful,
wanton or reckless torts (those involving “utter indifference to or conscious
disregard for the safety of others”)
o i.e. jaywalking v. speeding (negligence v. negligence) no recovery for plaintiff
in MD, DC, VA, NC, etc.
 But if driver was drunk and blindfolded plaintiff can FULLY recover
 EXCEPTION: Plaintiff’s illegal activity
o Barker v. Kallish- 15 year old making pipe bomb sues 9 year old who sells him
fire crackers. NO RECOVERY- committed a criminal act.

Other cases where you ignore plaintiff’s contributory negligence
o Plaintiff has “entitlement” to behave in certain way (personal autonomy)
 i.e. landowner can use his land as he pleases without being contributory
negligent- Leroy Fibre Co.
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 Yet entitled to walk to street alone at night??
o Defendant’s duty to rectify problem caused by plaintiff’s previous injury (Mercer)
 When society creates a situation in which you help someone out of a
predicament (professional duty) if you screw up, their previous negligent
actions that brought you there do not count- will still get full recovery
 i.e. duty of healthcare provider to rectify situation created by
negligent patient
o Duty to protect plaintiff from his own subsequent negligence (Bexiga)
 Examples: mentally incompetent, children, repetitive work (Bexiga)
 Plaintiff’s disability or vulnerability might be important if
 1- defendant knows of plaintiff’s disability which prevents/inhibits
care for himself
 2- plaintiff’s risky conduct endangers himself, but not others
**When Bexiga duty applies, ignore plaintiff’s negligence
Reciprocal risk
Defendant knows of plaintiff’s
disability
Defendant doesn’t know
Non-reciprocal risk
Strongest case for duty (no
reduction for comparative
fault)
Weakest case
Comparative fault
 Pure comparative fault (NY)- Plaintiff always gets something
 Modified comparative (WI)- If plaintiff’s fault >50%, plaintiff gets nothing (51%+)
 Modified comparative (ND)- If plaintiff’s fault > 50%, plaintiff gets nothing
Sollin v. Wangler
 FACTS: ND case where jury finds each party 50% liable. Yet in ND, this means that the
plaintiff can recover nothing. Plaintiff appeals, arguing that the jury should have been
instructed re: practical results of their findings.
 HELD: No error because plaintiff failed to request instruction. Yet court does support
allowing the jury to be informed of the legal consequences of its special verdict answers
on damages.
Wassell v. Adams
 FACTS: Wassell opens door to her motel room, which is located in a bad neighborhood,
at 1AM without looking to see who was outside. Man brutally rapes her. Charge Adams
with negligence in failing to warn Susan or take other precautions to protect her against
an assault. Jury found that Susan’s negligence was 97% to blame.
 HELD: Not authorized to upset jury’s apportionment (even though court disagrees with
it). Suggests methodical way to assess percentages- compare costs of precautions of the
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2 parties. Higher cost of precaution lower percentage of fault? Yet this idea is not
really used, %’s usually assigned by squishy restatement (perceived badness).
Butterfield v. Forrester
 FACTS: Defendant blocked highway with pole. Plaintiff was riding his horse quickly,
did not see the pole and rode into it, falling off the horse and injuring himself.
 HELD: For defendant- establishes contributory negligence as an all-or-nothing defense.
Mercer v. Vanderbilt
 FACTS: Larry was seriously injured due to his drunk driving. He sustained severe and
permanent brain damage due to medical malpractice (failure to check levels on oxygen
tanks on ventilator, failure to check alarms on monitor). Hospital argue that they violated
the standard of care, but it was not the cause of his brain damage. Argue that he went
into cardiac arrest due to his drinking.
 HELD: The antecedent drink does not limit recovery. Full verdict for plaintiff. Patient’s
negligent conduct that occurs prior to health care provider’s negligent treatment and
prides only the occasion for the health care provider’s subsequent negligence may not be
compared to the negligence of the health care provider. Vanderbilt was sole cause of the
injuries.
 NOTE: “plaintiff’s negligence provided the occasion”- not exactly correct…always
providing occasion
Bexiga v. Harir Manufacturing Corp.
 FACTS: Bexiga sues manufacturer of power punch press, which crushed the plaintiff’s
right hand- essentially a booby trap since there was no safety devices in basic design.
Defendant argues that John was contributory negligent (and in NJ at the time, this would
be complete bar to recovery for Bexiga).
 HELD: Contributory negligence is not a defense in strict liability/product liability cases.
Maybe suggests that plaintiff’s vulnerability rightly plays a part in determining
responsibility, but only in certain situations.
Leroy Fibre Co. v. Chicago, M & St. P.Ry
 FACTS: Plaintiff’s flax, which was kept on edge of land near RR, was destroyed by
spark from train. Defendant alleges contributory negligence in stacking flax so near to
RR.
 HELD: For plaintiff. P has entitlement to behave in given way and use his property as
he wishes. Will not reduce recovery because of it. Would be a taking of land if the court
said he can’t use that land for flax.
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Defenses to Negligence: Assumption of the Risk
Express Assumed Risk= contractual
 Waiver of right to sue= release of liability
 Two factors to consider
o Enforceability
 i.e. fraud, unconscionability, public policy
o Scope
Moore v. Hartley Motors
 FACTS: Plaintiffs attended ATV rider safety class held on Hartley Motors property after
salesperson provided monetary incentive for them to attend. Signed consent form and
release. During class, thrown from ATV when it struck a rock hidden by high grass.
 HELD: Holding an ATV safety class on unnecessarily dangerous course is beyond
ordinary negligence released by waiver. Error to grant defendant summary judgment.
Enforceability- public policy not an issue, ATV riding was voluntary activity. Scoperelease was not a release from negligence in general.
Implied Assumption of the Risk
 Used to be an absolute bar to recovery
 States that have abandoned traditional rule and use comparative fault rulesimplied
assumption of risk not bar, now factor in determining comparative fault
 Have been used in three different ways
o Consent/waiver
o Contributory negligence (useless superfluous label…same as contributory
negligence)
o No breach of duty
 In activity where people owe you a lower standard of care, you assumed
risk, cannot sue for higher standard of care
Crews test- Assumption of the risk
1) Knowledge of the risk
a. Objective standard- would person of normal intelligence in same position have
comprehended the danger
2) Appreciation of risk
3) Voluntarily exposed himself to risk
 Difference from risk of driving a car. Crews- breach of reasonable prudence antecedent
vs. driving a car- don’t know if another person is going to be careless.
Crews v. Hollenbach- consent/waiver (MD)
 FACTS: Hollenbach struck a natural gas lined owned by Washington Gas- did not
notice/report the subsequent leak. Crews, Washington Gas employee, came to scene few
hours later, was severely injured when working to fix the leak.
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
HELD: Assumption of risk is complete bar to recovery. Crews knowingly and
voluntarily accepted the risk. Smelled the gas, knew it could be dangerous and lead to an
explosion, Danger he confronted was same danger that he accepted the risk of
confronting when he became an employee of Washington Gas.
Turcotte v. Fell- no breach of duty, primary assumption of risk




FACTS: Plaintiff, jockey who won Triple Crown on Seretariat, was thrown off horse
allegedly by “foul riding.”
HELD: Duty of the defendant was not to ride his horse like a reasonably prudent person,
but rather, to ride his horse in a non-reckless way. Therefore, Fell did not breach dutyrode negligently.
Here, assumption of the risk is not used the same way as it is used in statute (ruling seems
inconsistent with NY statute)
o Statute treats contributory negligence and assumed risk alive- “assumed risk” here
should only reduce damages, not be a complete bar to recovery by plaintiff
In activity where people owe you a lower standard of care, you assumed risk, cannot sue
for higher standard of care
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Negligent Infliction of Emotional Distress


NEID- not only way to recover for damages for emotional distress
o If P is victim of another tort that results in physical injury, may “tack on”
damages for emotion distress
 Here, emotion distress damages are parasitic because they attach to
damages for physical injury
 In other words, emotional distress damages are available parasitically in
negligence claim
But when no physical injury or impact, courts limit right to recover for emotional distress
o Here, no parasitic damages because no injury
Stand-alone negligent emotional distress causes
 Still in a negligence world (must prove duty, breach, causation and damages)
 Emotional distress= fright, anxiety, grief, sadness, humiliation
 Used to have no recovery. Exception for recovery in consortium
NIED
 No physical injury yet want a stand-alone claim for NIED (“near miss cases)
o Have to prove zone of danger + physical manifestations
Stand-alone fright claim
 “contact”- 1) harmful contact (then it’s not a stand-alone case- parasitic) or 2) technical
tag
o This has been abolished yet retained in a few jurisdictions, such as FL
OR
 “Zone of physical danger” + subsequent physical manifestation of the distress OR
distress that is serious and verifiable”
o Zone of physical danger- exposed to physical harm (i.e. 1 foot away from falling
couch)
o Physical manifestations of the distress- i.e. heart attack, rash, NOT nightmares,
loss of appetite (because these things are not provable)
o Distress that is serious and verifiable (Siegel)- more flexible standard; use expert
testimony
Stand-alone claims for grief and sadness
 Come in form of bystander claim
o Distressed person witnesses negligent physical injury to someone else (3rd party
victim)
 Thing Rules: Nearness in
1. Relationship (immediate family)
o Firm rule- i.e. in CA/NY- no recovery for Aunt who raised niece as
daughter
2. Space- present at scene of injury
3. Time- personally observed event in real time
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

These used to be guidelines, yet in Thing, they became rigid rules (many
states are more relaxed on these dimensions)
 This denies recovery for i.e. parent who gets to scene of accident after
the injury occurs
Problem of keeping liability in manageable bounds
o Chief concern: if allow claim at all, need principal limits
Other Special Topics
1. Dead body cases
a. DC case- court denied recovery, no zone of danger when corpse was defiled
b. Yet most jurisdictions would not come out this way- consideration to emotional
distress that are associated with dead people
2. Erroneous death telegram cases
3. False positive medical tests
a. Foreseeable that person will be upset
Siegel v. Ridgewells
 FACTS: Non-kosher food served at wedding. Rabbi thinks he may have eaten shrimp.
 HELD: Without rabbi proving that he ate something, he was not in the zone of danger
(but he feared that he did and he was near non-kosher items? Did the court get this
wrong). Adds a more flexible standard. Do not have to prove physical manifestations of
distress. Can prove that distress is serious and verifiable.
Boyles v. Kerr
 FACTS: Boyles videotapes himself having sex with Kerr- commentates and shows his
friends. Kerr sues for NIED.
 HELD: Relief denied. No NIED without risk of physical harm.
 NOTE: Why wasn’t this IIED? Had knowledge that this would be stressful. Cyberbullying- example of legal evolution. Separate categories eventually foreseeability
becomes sole ground.
Sacco v. High Country Independent Press and Camper v. Miner
 These cases appear to discard all constraining rules.
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Consortium
Consortium- derivative claims (no higher recovery than claim from which they derived)
 Historically, only given to husbands
 Must prove services, society (companionship) and sex
 Loss of spousal consortium
o Only for married couples (Medley)
 Loss of filial consortium (plaintiff is parent)
o Services
o Society *emphasis*
 Loss of parental consortium
o Few states recognize this
o Used Palsgraf argument- if you run over someone and they have 8 children, and
you didn’t know that, these children are “surprises”
Medley v. Strong- loss of spousal consortium
 FACTS: Botched penectomy. Unmarried co-habitat sued for loss of consortium.
 HELD: No recovery- Medley fails to expand the tort. Worried that this would re-create
common law marriage (which was abolished in IL) and slippery slope (what about other
couples who would want to claim this?- classical dispute between flexible standard and
firm rule)
Boucher v. Dixie Medical Center
 FACTS: 18 year old kid becomes brain damaged quadriplegic.
 HELD: No recovery for loss of filial consortium when child is an adult.
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Products Liability

Strict products liability= liability without fault
o Yet when someone says products liability, don’t always mean strict liability
 Products liability can overlap with negligence (no cost-benefit justified
precautions, drunk on assembly line) or contracts
 Analytic shift: No longer focus on conduct, look at product itself
o Not interested in behavior of defendant
 Who would be exposed to liability for strict products? ONLY IMPOSED ON
MERCHANTS
o All merchants in distribution chain (manufacturer, retailer, wholesaler)
Cuiseneart Macy’s You
 Can sue both Macys and Cuiseneart
 Yet if you sell food processor to friend/eBay- they cannot sue you because
you are just a casual seller
 Joint and severally liable- if you recover from anyone lower on chain, they can seek
indemnification from highest (100% recovery)
 In order to have a claim
o 1) Must sue merchant
o 2) Must prove
 A) Product was defective
 B) Defect existed when product left the possession of defendant being
sued
3 Types of Defects
 Manufacturing defect-When the product departs from its intended design
 1 in a million
 Product can still be defective if no negligence is found
 Elements
o Product was in fact in a defective condition, unreasonably dangerous for its
intended use
 Test for defect/unreasonable danger: Consumer expectations test- must
make a product more dangerous than consumer reasonable expects (used
by more jurisdictions)
 Used in food products cases- did consumer reasonably expect to
find i.e. a bone in their enchilada?
 Alternative test: Products Liability Restatement- product has defect when
product departs from its intended design even though all possible care was
exercised in making product
o Defect existed when the product left defendant’s hands (can use res ipsa)
 Can infer that defect exists at sale/distribution if a) event was of a kind
that ordinarily occurs as a result of product defect, or b) event was not
solely the result of causes other than defect
o Defect was proximate cause of injuries sustained
 Design defect
o Every unit of product is vector for liability- dangerous propensities
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
o Alternative test often used with design defects= risk-utility test- defective if the
risks inherent in the design outweigh the benefits/utility
 Weight the likelihood of harm, gravity of harm if it occurs against cost for
preventing harm by using different design (includes loss of benefit in
present design and direct costs of alternative design- production and ads)
 Note: Restatement of Products Liability adopts risk-utility test for design
defects (consumer expectations test- not independent standard for judging
defects)
o Plaintiff must/should offer evidence of RAD- reasonable design alternative
 Safer
 Economically plausible
 Practical- doesn’t introduce new problems regarding product’s use
(i.e. dull carving knife)
 Restatement 3rd of Product Liability- says must offer evidence of RAD
 This almost always requires expert testimony
 Honda v. Norman- Seatbelt traps woman who drives her car
intoxicated into body of water.
 RAD is not enough- must also show that product was unreasonably
dangerous and foreseeable that it would cause harm similar to that
suffered by plaintiff
o Problems with design defects
 Consumers don’t necessarily know about design before they use it
 You may cease to expect any better if you are a repeat user (i.e. industrial
press- Knitz)
Information Defects- failure to provide appropriate information (instructions or warnings)
about a product may make an otherwise safe product dangerous or defective
o Warnings
 Used to 1) warn of danger’ and 2) educate user about safer alternatives
 Subject to risk-utility analysis. Almost always economic, safer, and
practical, yet can be superfluous or counterproductive
 No duty exists to warn of dangers that are/should have been obvious
 Warning must be reasonably clear and of sufficient force and intensity to
convey the nature and extent of the risks to a reasonable person
 Sometimes must warn of extend of harm that can result
 Danger to small amount of people- duty to warn turns on magnitude of
danger
o Heeding presumption- courts assume that plaintiff would read and heed warning
o Learned Intermediary Doctrine- warn doctors about downsides of medicationassume that they will pass it on to patients
 Doesn’t apply if vendor markets drugs to end-users
o Liriano v. Hobart- Young immigrant hurt on meat grinder without any warning.
Affirmative defenses
 Early products liability decisions hesitated to make P’s contributory/comparative
negligence a defense
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

Modern approach: whatever jurisdiction’s standard method of dealing with P’s
negligence is (typically comparative negligence), that method applies to products liability
Different types of negligence by P
o Failure to discover risk- prob not negligence since P is entitled to assume that
there was no defect at all
o Assumption of risk- modern trend treats this as comparative negligence- to the
event that P’s decision to use the product in face of known risk was unreasonable,
it will cause P’s recovery to be reduced proportionally
 No long an absolute bar to recovery
o Ignoring safety precaution
o Misuse: If P totally misuse the product, D will not be relieved from liability
unless misuse was so unforeseeable that either 1) the misuse couldn’t be
reasonably warned or designed against or 2) misuse was found to be superseding
 Third party alteration- no defense if it was foreseeable- Spadone
 Hughes- misuse is not affirmative defense; rather, part of P’s case
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Boyle Article
Precedential Arguments
1. Purposive interpretation v. formalist interpretation
a. Purposive- imagine purpose behind rule and determine words in light of purpose
b. Explain meaning of word by taking it out of context and without considering
purpose behind word. Then apply that definition to your facts.
2. Broad v. narrow rule
a. Broad rule- take each phenomena in case and make it as abstract as you can
b. Narrow- rules in specific case are not capable of deciding another case that is
marginally different
3. General Manipulation of precedent
Policy Argument/Non precedential
1. Judicial administration (formal realizability)
a. Firm rule- easily administered, citizens know the law, another standard would
open floodgates to litigations, undermine the rule, confusion
b. Flexible standard- Rule X= harsh and rigid standard, would lead to unfair
outcome, cannot adapt to changing times, courts’ hands would be tied, will allow
justice to be delivered on case by case basis
2. Institutional competence- is particular claim suitable for court to take?
a. Courts are competent institutions- issue is suitable for courts to deal with, needs to
be resolved by institution which takes outside expert advice with firm
understanding of changing moral consensus of society, set up to deal with
complex factual issues, to respond to changing circumstances, and be objective
b. Court are not competent- leave it to legislature, courts should apply and not make
law (threaten separation of powers), legislature is body that reflects changing
public opinion, can use outside experts, used to dealing with complex matters,
cannot have quick fix judicial decision
3. Moral arguments
a. Making moral decisions on formal classification of dispute (two contracting
parties) v. making moral decisions based on substantive relative social power of
people involved
i. Morality as form (a contract is a contract) v. morality as substance (why
should K be enforceable against person with unequal bargaining power)
b. Other moral arguments; morality as freedom v. morality as security; individual v.
community; content v. process; individualistic v. altruistic
4. Deterrence or social utility arguments
a. One side argues that proposed action will deter good conduct and encourage bad
behavior. Other side argues the opposite.
5. Economic arguments: cost benefit analysis
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Vicarious Liability
Respondeat superior doctrine: If employee commits a tort during the “scope of his
employment”, his employer will be liable (jointly with the employee).
 Applies to all torts (including intentional ones assuming that the tort occurred in scope of
employment)
 Applies to employees, but not to cases involving independent contractors
o Idea is that an employee works subject to the close control of the person who has
hired him (i.e. control over the physical details of the work, not just the general
manner in which the work is turned out)
 i.e. newspaper boy= independent contractors
 Scope of employment
o Tort is within scope of employment if tortfeasor was acting with an intent to
further his employer’s business purpose, even if the means he chose were indirect,
unwise, or forbidden
o Accident that occurs when employee is traveling from home to work, not acting
in scope of employment. Returning home: courts are split
o Detour/side trip/frolic during delivery or business trip for personal purposes by
employee may be found within scope of employment if deviation was “reasonably
foreseeable”: minor in time and geographic area
o Forbidden acts- if act done was expressly forbidden by owner, if done in
furtherance of the employment, employer is liable
 i.e. storekeeper tells employees never to load guns while showing them to
customers, but D does and shoots customer accidentally
o Generally not liable for intentional torts unless within scope of employment: i.e. if
bill collector X commits assault, battery and false imprisonment on P in
attempting to collect debt, employer is liable.
 Yet if employee performs acts from personal motives, employer not liable
 i.e. Nurse kills man while man is in hospital because of a prior
fight. Nurse acted from personal motives, not in attempt to further
business.
Parent-child
 Parent not vicariously liable for tortious conduct of child. Most state, by statute, make
parents liable for willful and intentional torts of their minor children up to certain dollar
amount
Tavern keepers
 Dramshop Acts- create cause of action in favor of any third person inured by intoxicated
vendee
o Some courts have imposed liability on tavern keepers in absence of Dramshop
Act
 Based on negligence principals
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