TORTS FINAL EXAM OUTLINE
(Don’t get overwhelmed! Just take each claim step by step. Don’t forget to separate all the parties. Almost done!)
INTENTIONAL TORTS ................................................................................................................................................................ 3
2.
Battery ........................................................................................................................................................................................................................ 3
3.
Assault ........................................................................................................................................................................................................................ 3
4.
Intentional Infliction of Emotional Distress ................................................................................................................................................. 3
5.
False Imprisonment............................................................................................................................................................................................... 4
6.
Trespass ..................................................................................................................................................................................................................... 4
6.1.
Trespass to Land ......................................................................................................................................................................................... 4
6.2.
Trespass to Chattels ................................................................................................................................................................................... 4
6.3.
Conversion ..................................................................................................................................................................................................... 4
AFFIRMATIVE DEFENSES .......................................................................................................................................................... 5
7.
Consent (Privilege) ................................................................................................................................................................................................ 5
8.
Self Defense (Privilege) ........................................................................................................................................................................................ 5
8.1.
Self-Defense by Force Not Threatening Death or Serious Bodily Harm ................................................................................. 5
8.2.
Self-Defense by Force Threatening Death or Serious Bodily Harm .......................................................................................... 6
9.
Defense of Others ................................................................................................................................................................................................... 6
10.
Defense of Property .......................................................................................................................................................................................... 6
11.
Necessity (Privilege) ........................................................................................................................................................................................ 7
12.
Discipline (page 93 in casebook) ................................................................................................................................................................. 7
13.
Arrest and Crime Prevention (page 95 in casebook) ............................................................................................................................. 7
14.
Shopkeeper’s Defense ..................................................................................................................................................................................... 7
NEGLIGENCE ............................................................................................................................................................................... 8
15.
Negligence .......................................................................................................................................................................................................... 8
16.
Negligence Per Se............................................................................................................................................................................................. 8
17.
Custom ................................................................................................................................................................................................................. 9
18.
Res Ipsa Loquitor (The Thing Speaks For Itself) .................................................................................................................................. 9
19.
Affirmative Duties (duty established by a relationship or nonfeasance and misfeasance) .................................................................10
20.
Landowner and Possessor Liability – Duties ........................................................................................................................................10
CAUSATION ..................................................................................................................................................................................11
21.
Actual Causation .............................................................................................................................................................................................11
21.1.
Actual Causation – Single Defendants ...............................................................................................................................................12
21.2.
Actual Causation – Joint and Several Liability ................................................................................................................................13
21.3.
Actual Causation – Joint and Several Liability (Substantial Factor) ........................................................................................13
21.4.
Actual Causation – Joint and Several Liability (Alternative Causation) ..................................................................................13
22.
Proximate Cause .............................................................................................................................................................................................14
22.1.
Foreseeable Consequences ....................................................................................................................................................................14
22.2.
Intervening Causes ...................................................................................................................................................................................15
22.3.
Proximate Cause for Intentional Tortfeasors ...................................................................................................................................15
22.4.
Foreseeability of Rescuers ......................................................................................................................................................................15
22.5.
Foreseeable Plaintiffs ...............................................................................................................................................................................15
NEGLIGENCE – SPECIAL RULES ............................................................................................................................................ 16
23.
Non-liability for Foreseeable Consequences .........................................................................................................................................16
23.1.
Bystander Emotional Harm...................................................................................................................................................................16
23.2.
Negligent Infliction of Emotional Distress (NIED) .....................................................................................................................17
23.3.
Injury to Personal Relationships (Loss of Consortium) ...............................................................................................................17
24.
Prenatal Harm..................................................................................................................................................................................................17
25.
Economic Harm..............................................................................................................................................................................................18
NEGLIGENCE – AFFIRMATIVE DEFENSES .......................................................................................................................... 18
26.
Contributory Negligence ..............................................................................................................................................................................18
27.
Last Chance Rule ............................................................................................................................................................................................18
28.
Comparative Negligence (Modern Rule) ...............................................................................................................................................18
29.
Assumption of Risk ........................................................................................................................................................................................20
30.
Immunities ........................................................................................................................................................................................................20
1
DAMAGES ..................................................................................................................................................................................... 21
31.
Damages ............................................................................................................................................................................................................21
31.3.
Eggshell Plaintiff Rule.............................................................................................................................................................................22
31.4.
Wrongful Death..........................................................................................................................................................................................22
STRICT LIABILITY ...................................................................................................................................................................... 23
32.
Worker’s Compensation ...............................................................................................................................................................................23
33.
Vicarious Liability ..........................................................................................................................................................................................23
34.
Strict Liability (Activities) ............................................................................................................................................................................24
34.3.
Animal Strict Liability ..............................................................................................................................................................................24
34.4.
Nuisance ......................................................................................................................................................................................................24
34.5.
Affirmative Defenses ................................................................................................................................................................................25
PRODUCTS LIABILITY............................................................................................................................................................... 25
35.
Strict Product Liability ..................................................................................................................................................................................25
36.
Manufacturing Defect ...................................................................................................................................................................................26
37.
Failure to Warn ................................................................................................................................................................................................27
38.
Design Defect ..................................................................................................................................................................................................28
39.
Product Liability – Causation .....................................................................................................................................................................28
40.
Products Liability – Defense: Comparative Responsibility .............................................................................................................28
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1. Reasons for Tort Policy
Instrumental Rationales: Tort law is an instrument for achieving social goals. E.g. Econ. Analysis of Law (Posner) 1) Deterrence: people
should desist from harm producing or wasteful conduct; 2) Efficiency: Maximize total social wealth
Non-Instrumental Rationales: Tort law should punish wrongful conduct. E.g. Non-reciprocal Risk (Fletcher) 1) Compensation (to P): D
causes harm to P; 2) Fairness (to D): corrective justice
INTENTIONAL TORTS
Intent
R 3d § 1
R 2d § 8A
Act with purpose of
producing the consequence
or knowing that the
consequence is substantially
certain (constructive intent)
to result
2.
3.
4.
Recklessness
R 3d § 2
R 2d § 500
Acts with knowing indifference
to a risk of harm that would be
obvious to another in that
situation; Acts with deliberate
disregard of a high probability of
harm
Negligence
R 3d § 3
R 2d § 283
Does not exercise
reasonable care under
all the circumstances;
Creates an unreasonable
risk of harm.
Strict Liability
R3d § 20, Products Liability
R 2d §§ 402A, 519
Engages in certain conduct
that causes harm.
E.g., Vicarious Liability,
Abnormally Dangerous
Activities, Sale of Defective
Products
Battery
2.1. Rule
 Restatement 2d Section 13 (Harmful) & Section 18 (Offensive)
2.2. Prima Facie Case
 D Acts
 Intending (Garratt, Section 8A, Section 20) to
 Cause (Vosberg Rule #2, chapter 2) or the intentional apprehension that D will cause a
 Harmful (Section 15) or Offensive (Section 19)
 Contact with another p. 28-29
 Harmful or offensive contact results to another or a third person (transferred intent, p. 24)
2.3. Related Cases
2.4. Other Information
 Definition of Offensive – Offends a person’s dignity as defined by the time and place. Is the action against the social norm? The
actor does not have to know the contact is offensive.
 Instrumentality – An individual may be guilty of battery if an instrumentality of his causes harm to another. In this case, you must
determine the individual’s intent in using that instrumentality. (Think snowmobile incident)
 Mentally disabled people are commonly held liable for intentional torts even though intentional torts require subjective intent
which they don’t meet.
Assault
3.1. Rule
 Restatement 2d Section 21
3.2. Prima Facie Case
 D Acts
 Intending (Garratt, Section 8A) to
 Cause (Vosberg Rule #2, chapter 2) or the intentional apprehension that D will cause a
 Harmful (Section 15) or Offensive (Section 19) Contact
 Imminent Apprehension ensues
 The threat must be imminent and present.
 The actor must have the ability to do so.
 Ask yourself would a reasonable person have this fear?
3.3. Related Cases
Intentional Infliction of Emotional Distress
4.1. Rule
 Section 46 in the Restatement 2d
4.2. Prima Facie Case
 Extreme and outrageous conduct: so outrageous in character and extreme in degree as to go beyond all possible bounds of
decency and regarded as atrocious and intolerable in a civilized community. (comment d)
 Intentionally or recklessly: acts with the purpose of producing the consequence or knowing that the consequence is substantially
certain to be result; OR knows of the risk created by the conduct or know facts that make the risk obvious to another in that
situation and indifference to the risk.
 Causes
 Severe emotional distress: extreme, that is, no reasonable person should be expected to endure it.
3

5.
6.
Transferred Intent: R. 2d Sect 46(2) – immediate family if present and emotional distress happens, and any other person if
present AND bodily harm results from the emotional distress.
4.3. Related Cases
4.4. Other Information
 Courts typically agree that this tort can be applicable in the first five instances:
o 1) Future threats of serious bodily harm; 2) Debt Collection; 3) Constitutionally protect rights (Fisher w/o plate); 4)
Dead bodies: Restatement Section 868 – Interference w/ dead body; 5) False reports of serious bodily harm (Wilkinson,
telegraph cases); 6) Insulting language? (Taylor, Logan)
 If there is a relationship between the parties, if it occurs 2 or more times and you can establish a repeated pattern of conduct, and
if you are aware of the person’s susceptibility to the conduct, then you can claim IIED.
False Imprisonment
5.1. Rule
 Sections in the Restatement that apply here are 39, 40, 40A.
5.2. Prima Facie Case
 Did the defendant intend to confine the individual or a third person?
 Did the defendant fix the boundaries?
 The act directly or indirectly results in the confinement of the other
 Is the plaintiff aware of the confinement or suffered harm from it?
5.3. Related Cases
5.4. Other Information
 Restraint is the setting of fixed boundaries by the defendant so as to not let the plaintiff leave.
 Physical restraint is not always required, acts and threats are a good sign.
 There must be no reasonable escape
 Merchants have some maneuvering room to do what is necessary to protect property, but it must be reasonable
 Reasonable time (be brief), reasonable grounds (be certain), reasonable manner (be polite).
Trespass
6.1. Trespass to Land
6.1.1.
Rule
 Restatement 2d Section 158 - Intentional, physical entry onto the land possessed by another.
6.1.2. Prima Facie Case
 Basic trespass here. Looking for intent or recklessness, physical entry, of another’s land.
 Defendant acts intentionally
o To enter the land in the possession of the other
o Or remain on the land
o Or failed to remove something from the land they had a duty to remove
o Or caused a third person to do any of the above
 Transferred intent – can put something or a third person on the property and it is still trespass
6.1.3. Other Information
 Check for affirmative defenses here – privilege, necessity, consent
 Restatement 2d Section 163 (No Harm) – still liable to the possessor for a trespass if he intentionally trespasses even if no
harm happened to the land, the possessor, or any thing or person the possessor has a legally protected interest
 Restatement 2d Section 164 (Mistake) – still liable to the possessor for a trespass if he intentionally trespasses even if it is a
mistake, however reasonable, not induced by the conduct of the possessor, that the he is in possession of the land or entitled
to it, that he had consent, or that he had some other privilege
6.2. Trespass to Chattels
6.2.1. Rule
 Restatement 2d Section 217 & 218 - Intentional dispossession or use of the chattel of another.
6.2.2. Prima Facie Case
 Intentional dispossession or use of
 Another person’s property
 And the dispossession is not permanent – aka the property has not been permanently altered
 And there is a negative effect (i.e. bodily harm) to the possessor.
6.2.3. Other Information
 Check for affirmative defenses here – privilege, necessity, consent
6.3. Conversion
6.3.1. Rule
 Restatement 2d Section 222A - Intentional exercise of dominion or control of a chattel of another which so seriously
interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the
chattel. In addition, if it severely prevents someone from using it for their convenience, it could be deemed a conversion.
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6.3.2. Prima Facie Case
 Looking for intent – did they mean to keep it or take it for an extended period of time.
 Did the defendant take control of the property?
 Was it seriously interfered with so as to interrupt the right of another?
 Was it changed or altered? Was there inconvenience? How was the chattel harmed?
 What was the inconvenience and expense done to the other party?
6.3.3. Other Information
 Check for affirmative defenses here – privilege, necessity, consent
6.4. Related Cases
AFFIRMATIVE DEFENSES
7. Consent (Privilege)
7.1. Rule
 Restatement 3d Rules 892 (A – D)
7.2. Prima Facie Case
 Objective manifestation (Restatement Section 892 (2) O’Brien), of
 Subjective willingness in fact (Restatement Section 892 (1)): Voluntary
 For the particular or substantially the same conduct to occur: Knowing (Restatement section 892A)
7.3. Related Cases
Barton, Ban, Kennedy, Hackbart
7.4. Other Information
 Consent is subjective, but it may be manifested objectively. Words or conduct are reasonably understood by another to be
intended as consent, they constitute apparent consent and are as effective as consent in fact. (Implied consent)
7.4.1. Exceptions to Consent
 Consent induced by fraud or duress not valid because not voluntary; R2d §892B
 Emergency Action does not require consent; R2d § 892D
7.4.2. Criminal Consent Rules
 There are three (3) different rules regarding consent:
o Criminal Consent (Majority Rule) – if there is consent from the victim and the underlying activity is criminal then
consent is no longer valid.
o Restatement Rule 892C (Minority Rule – Twist on Barton) – Consent is effective to bar recovery in a tort action
even though it was consent to a crime, UNLESS the conduct was made criminal to protect a certain class of people
at which point the consent of members of that class is no longer valid.
o Barton (Minority Rule) - if she consented to the action, then it would bar her action in court. Her consent is valid
as long as she knows the nature and quality of her act.
7.4.3. Medical Consent
 Consent rules as they apply to doctors. Consent to one body part is not consent to the rest of the body.
 The patient must be given alternatives or at least know all the facts before true consent can be given.
 Cannot go beyond specific consent given by patient UNLESS it is an emergency (Scope of consent).
7.4.4. Informed Consent
 Two types of informed consent violations: 1) Battery 2) Negligence
 Negligence - type of informed consent where someone fails to explain the risk involved. The patient has given consent but
there as been a breach of duty adequately to inform the patient of the risks.
 Battery - type of informed consent. It is unapproved/un-welcomed touching of one’s body. “Where treatment is
unauthorized and performed without consent, the doctor has committed a battery” even if “A condition is on the consent, it
is a matter of primary importance, and the doctor acts in excess of violation of that condition, if proved, constitute a battery”
If the scope of consent is violated, it is a battery.
 Also liable for battery if you explain all risk but did not explain a risk or result that they should have known to a substantial
certainty would happen, then it is a battery. (constructive intent)
 Majority Rule for Scope – consent applies to just the operation that was consented to, unless it is an emergency and you have
a reason to know that they would consent. Bang
 Minority Rule for Scope – you may extend consent to the general area of the operation/incision as a good surgeon would
allow (p. 53). Kennedy
8. Self Defense (Privilege)
8.1. Self-Defense by Force Not Threatening Death or Serious Bodily Harm
8.1.1.
Rule
 Restatement 2d Section 63
8.1.2. Prima Facie Case
 Reasonable force (not intending to cause death or serious bodily harm)
5
 Against unprivileged harmful or offensive contact
 Reasonably believes another actor
 Intends to inflict on him
8.1.3. Other Information
 Self-defense is privileged even though: the actor correctly/reasonably believes (objective – does not have to be right) he
can avoid the necessity to defend himself by retreating or giving up a right or privilege or by complying with a command
which he has no duty to comply with or the other has no privilege to enforce by the means threatened.
 Reasonable belief – a reasonable person would also entertain the same apprehension. This includes acts and statements.
 Reasonable force – must not be disproportionate to the harm which the actor is protecting himself from; the fact that it is
an emergency situation is considered (a reasonable man in this emergency situation)
 Duty to Retreat – there is no duty to retreat in this situation
 Legal Duty Exception – if the actor has a legal duty to comply to a demand then he cannot use self-defense against the harm
the individual is privileged to apply for the purpose of securing compliance.
8.2. Self-Defense by Force Threatening Death or Serious Bodily Harm
8.2.1. Rule
 Restatement 2d Section 65
8.2.2. Prima Facie Case
 An actor is privileged to use force causing death or serious bodily harm when:
o He reasonably believes the other is about to inflict an intentional contact or bodily harm
o He is put in peril of death or serious bodily harm
o Can safely be prevented by the use of such force
8.2.3. Other Information
 Self-defense is privileged even though: the actor reasonably believes he can avoid the necessity by retreating within his
dwelling place or permit the other to intrude or dispossess him of his dwelling place or abandon an attempt to get a lawful
arrest.
 Self-defense is NOT privileged if: the actor reasonably believes he can safely avoid the necessity by retreating (if attacked
anywhere other than his dwelling or in a place which is the dwelling of another) or relinquishing any right or privilege other
than the privilege to prevent intrusion or dispossession or to effect a lawful arrest.
 Standing Ground (the Jason Rule) – a person can stand his ground, if he reasonably believes, the slightest doubt that he
cannot escape safely.
8.3. Related Cases
9.
Defense of Others
9.1. Rule
 Restatement 2d Section 76
9.2. Prima Facie Case
 Can protect a third Person
 From harmful or offensive contact (or other invasion of his interests)
 Under same conditions by which the actor is entitled to self-defense (see section 8 of this outline)
 If the actor reasonably believes:
o The circumstances are such that the third person is entitled to self-defense
o His intervention is necessary for the protection of the third person
9.3. Related Cases
9.4. Other Information
 Restatement 76 (Minority Rule) - Objective rule: You have whatever privilege a reasonable person would have in my
circumstance. If I can see but the one being attacked can’t, I can’t shoot.
 Derivative Privilege (Majority Rule) - Subjective rule: You have whatever privilege the party “in danger” has. If I can see but the
person “in danger” can’t, I can shoot.
10. Defense of Property
10.1. Defense of Possession by Force
10.1.1. Rule
 Restatement 2d Section 77
10.1.2. Prima Facie Case
 Actor can use reasonable force not intended to cause death or serious bodily harm if:
o The intrusion is not privileged or the other acted to make the actor believe its not privileged
o AND the actor reasonably believes the only way to terminate it is by the use of force
o AND a request to desist was made and disregarded or the request would be useless or result in substantial harm before it
can be made
10.1.3. Other Information
6
11.
12.
13.
14.


Incomplete Privilege – This refers to cases where a person has a privilege to protect himself or his chattel so he is free of liability
from trespass, but he is not free from liability for any material harm done to its physical condition. The only way an actor can
prevent this intrusion is if he has reasonable grounds to believe that it is likely to cause substantial bodily harm to him or third
persons.
10.2. Use of Mechanical Device Not Threatening Death or Serious Bodily Harm
10.2.1. Rule
 Restatement 2d Section 84
10.2.2. Prima Facie Case
 Privileged to use device, not likely to cause death or serious bodily harm, to protect land or chattels if:
o It is reasonably necessary
o AND the device is reasonable under the circumstances
o AND the device is customarily used or reasonable care is taken to make it known to intruders
10.2.3. Other Information
 Look at comments for any extra situation regarding the type of device used.
10.3. Use of Mechanical Device Threatening Death or Serious Bodily Harm
10.3.1. Rule
 Restatement 2d Section 85
10.3.2. Prima Facie Case
 An actor is privileged to use a device producing serious bodily harm or death for the purpose of protecting his land and
chattel only if, had the actor been present, he would have been allowed to use such force.
10.4. Related Cases
Necessity (Privilege)
11.1. Public Necessity
11.1.1. Rule
 Restatement 2d Section 196
11.1.2. Prima Facie Case
 Can enter the land of another if the actor reasonably believes it is necessary for the purpose of avoiding an imminent public
disaster.
11.2. Private Necessity
11.2.1. Rule
 Restatement 2d. 197
11.2.2. Prima Facie Case
 One is privileged to enter or remain on another’s land if it reasonably appears to be necessary to protect:
o The actor, his land, or his chattels
o Or a third person (his land or chattels), unless he knows the person does not want such action.
 This is not a full privilege. The actor is still liable for any harm done in the exercise of the privilege unless the threat of harm
was caused by the tortious conduct or contributory negligence of the possessor.
11.3. Related Cases
 Restatement 197(1) – Ploof; Restatement 197(2) - Vincent
11.4. Other Information
 Doctrine of necessity: “An inability to control movements inaugurated in the proper exercise of a strict right, will justify entries
upon land and interferences with personal property that would otherwise have been trespass”
 Using or destroying someone else’s property is justifiable if based on necessity.
 Necessity is a privilege that can negate self defense and defense of property. If the person is privileged to be on the property and
the other uses physical force thinking of self defense, this may be a valid battery claim.
Discipline (page 93 in casebook)
12.1. Prima Facie Case
 Parents and teachers have a privilege to impose reasonable discipline on children.
o Things to Consider - Nature of the punishment itself, nature of the misconduct, the age and physical condition of the
pupil, and teacher’s motive.
o Reasonableness - Must measure the actor’s reasonable perception of the need to use force, and the reasonable harm
inflicted.
Arrest and Crime Prevention (page 95 in casebook)
13.1. Prima Facie Case
 This is in reference to police officers and other law enforcement in arresting lawbreakers and preventing crime.
 Reasonableness of the actor’s perception of the need to use force; reasonableness of the harm actually inflicted
Shopkeeper’s Defense
Shopkeeper has a right to take reasonable action to protect its property.
Remember, human life more important than property.
7

From False Imp. - Reasonable time (be brief), reasonable grounds (be certain), reasonable manner (be polite). Also, you cannot detain
witnesses.
NEGLIGENCE
15. Negligence
15.1. Rule
 NEGLIGENCE - Restatement 3d Section 3 - A person acts negligently if the person does not exercise reasonable care under all
the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the
foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of the harm that may ensue, and the
burden of precautions to eliminate or reduce the risk of harm.
 ORDINARY CARE – Restatement 2d 283 – standard of conduct is reasonable man under like circumstances
RPP apply him to Circumstances
P x G vs. B
OBJ
SUBJ
 BURDEN OF PROOF – It is the plaintiff’s job to show alternate ways the defendant should have conducted their actions. This
way you can show what may or may not have been too burdensome. Each different count of negligence requires its own separate
analysis. There is still the basic duty, breach, cause, and damage, but what is the source of the duty, what a possible breach is, etc.
15.2. Prima Facie Case
 Restatement 2d Section 328A
o Duty = Standard of Care, Question of law for the court p. 163
o Breach= Did D fall below the applicable standard of care? Question of fact for jury, p. 163
o Cause= Actual cause (but for, sub factor, joint and several) and Proximate cause (proportionate scope of liability)
o Damage=Compensatory damages for physical injury, prop damage, lost work capacity and pain and suffering
15.3. Related Cases
15.4. Other Information
Children – Restatement 2d Section 283A
 In order to determine if a child is behaving negligently, a child must conform to what a reasonable person of like, age, intelligence,
and experience under like circumstances.
 Adult Activity - An exception to this rule is when children engage in adult activities where adult qualifications are required. In this
case he will be held to the standard of adult skill, knowledge, and competence required by the activity. No exception will be made
for immaturity.
 Age - Another exception to this is children under the age of 5 since they are incapable of comprehension. Restatement 3d Section
10.
Mental Deficiency – Restatement 2d Section 283B
 Unless the actor is a child with mental deficiency, insanity or other mental deficiencies do not relieve the actor from liability of not
conforming to the standard of a reasonable man in like circumstances. Why? Hard to measure; hard to verify; not entirely
obvious or visible to a third party. However, if it is a child who is mentally deficient, then you can raise the deficiency for the
consideration of the court.
Physical Deficiency – Restatement 2d Section 283C
 If the actor is ill or has a physical disability (blind, handicapped, etc.), the standard of conduct would be that of a reasonable man
under like disability. Why? It is measurable; it is verifiable; it is visible to a thirty party.
 This applies to the circumstances in the reasonable man formula not the RPP half of the formula.
 This also applies to temporary disabilities (i.e. heart attacks); however, if the person knows he is prone to them then he may be
held negligent.
Emergency – Restatement 2d Section 296 (Young v. Clark p. 171 in casebook)
 The fact that the actor is faced with sudden emergency requiring rapid decisions is factored in determining if the person acted
reasonably under the circumstances.
 There is just too little time to determine what a reasonable person should do.
 Just because the person did not act negligently after the emergency happened, does not preclude him from being held liable if his
tortious conduct produced the emergency.
 Courts typically define lack of time as 3 seconds or less.
16. Negligence Per Se
16.1. Rule
 Restatement 2d Section 286 – The standard of conduct for a reasonable man can be defined by legislative enactments or
administrative regulations. These enactments are usually made to protect a class of people, interests, particular kinds of harm, or
particular kinds of hazards.
16.2. Prima Facie Case
 Duty – duty here is determined by the law or statute (it is a question of law if such a duty should apply). The statute must be a
safety statute, and it must be apply and be relevant to the case at hand. (Think of the licensing statute that did not apply to the
physician’s malpractice)
8

Breach – proof that the actor acted in a way contrary to the conduct specified in the law or regulation. In addition, ask yourself if
the violation is excused (look below)
 Cause – same as regular negligence
 Damage – same as regular negligence
16.3. Related Cases
16.4. Other Information
16.4.1. Excused Violations
16.4.1.1. Rule
 Restatement 2d Section 288A – Excused violations is not negligence. Unless the statute states that such exceptions
are not excused, 288A (2) states when violations are excused. Think of the following issues: 1) incapacity (minors),
2) impossibility (doesn’t know or should know the situation calls for compliance) 3) inability (after reasonable
diligence and care is unable to comply), 4) emergency (confronted with an emergency not due to their own
misconduct, and compliance brings a greater risk), 5) greater risk of harm if complied, and 6) statute allows for
exceptions.
 Exception – Restatement 2d 288C: If compliance with the statute may bring more harm than good in the
circumstances, than the defendant must prove that he acted like an RPP in that situation.
Irrelevant
E.g.,
Brown v. Shyne,
Gulla v. Straus, 154 Ohio
St. 193(1950) [driver’s
license]
Statutory purpose is not a
safety purpose, or
violation of the statute
did not cause the harm
Some Evidence
E.g.,
N.Y Civ. Prac. L. & R. § 4504(d),
Gill p. 185
Chambers v. St. Mary’s School, 82 Ohio
St. 3d 563(1998)[Adm. Regs.]
P gets to the jury (prima facie case)
by proving D’s violation of
applicable safety statute; jury
determines whether D was at fault
Rebuttable Presumption
E.g.,
Sheehan p. 184, Peterson p. 185 (internal
police dept. regulation)
Negligence Per Se
E.g.,
Martin v. Herzog,
Tedla v. Ellman
P proves duty and breach by proving
D’s violation of applicable safety statute;
b/p shifts to D to prove D acted as a
RPP under the circumstances
Statutory violation not
admissible. Jury must find
that D did not act as a
RPP
Jury instructed that if they find D’s
stat. violation caused harm, they may
find for P.
Jury instructed that if they find D’s stat.
violation caused harm, they must find
for P unless D establishes that he acted
as a RPP under the circumstances.
P proves duty and breach by
proving D’s violation of
applicable safety statute; b/p
shifts to D to prove legally
recognized excuse
Jury instructed that if they find
D’s stat. violation caused harm,
they must find for P unless D can
establish excuse.
17. Custom
17.1. Rule
 Custom can be made admissible for a prima facie case.
17.2. Prima Facie Case
 Duty – need expert witness to testify what indeed is the custom for that group of people. This is relevant but not determinative.
 Breach – show that the defendant acted inconsistently with that custom
 Cause and Damage - still the same as in basic negligence.
17.3. Other Information
 Exceptions to custom – if the custom causes more harm than good go back to RPP (Learned Hand Balance). Also, if the custom
should change because of safety, custom does not carry. T.J. Hooper
17.4. Professional Malpractice (Medical and Legal)
17.4.1. Rule
 Restatement 2d Section 299A
 Skill and knowledge normally possessed by member of that specialty in good standing in similar communities = national S/C
for physicians, statewide S/C for lawyers.
 If you are a professional, expert testimony is required to establish the custom to get to the jury unless the matter is within the
common knowledge of the jury.
17.4.2. Other Information
 If you do not need an expert witness, you can still submit expert testimony to develop custom.
 The reason they have a higher standard for getting to the jury is because they are more trained, more skilled, more educated
in this area. Not everyone can testify as to the right thing that should be done.
 Medical common knowledge exceptions for expert testimony – 1) Injury to remote body part; 2) foreign objects left in
patient; 3) informed consent in ½ jurisdictions that adopt patient need standard
 Legal common knowledge exceptions for expert testimony – 1) failure to obey client’s lawful instructions; 2) failure to
research law; 3) failure to file case within required time period.
18. Res Ipsa Loquitor (The Thing Speaks For Itself)
18.1. Rule
9

Restatement 3d Section 17: It may be inferred that D is negligent when the accident causing P’s physical harm is a type of
accident that ordinarily (more likely than not) happens as a result of the negligence of the class of actors of which the D is a
relevant member.
 This happens where plaintiffs don’t have access to recreate the accident or to show that there was a specific negligence because
only the defendant had control of it. You must prove as much as you can so that a reasonable inference of negligence can be
made.
18.2. Prima Facie Case
 An inference of negligence is permitted, but not required if P proves:
o DUTY AND BREACH - The accident is such as in the ordinary course of things would not happen if the defendant had
exercised reasonable care.
o CAUSE AND DAMAGE - The instrumentality that CAUSED the HARM is in the exclusive dominion and control of the
defendant (at the time of the negligent act), and
o The instrumentality has not changed after it left the defendant’s possession.
18.3. Related Cases
 Boyer v. Iowa HS (bleachers), Shutt v. Kaufman’s Inc, City of Louisville v. Humphrey, Escola v. Coca-Cola (bottle exploding –
the beginning of Justice Traynor’s Product Liability)
18.4. Other Information
 As a defense, defendant could prove that someone/something else caused the accident, but this is not required.
 Works only in a very small amount of accidents, that you can infer negligence, lack of ordinary care, etc.
19. Affirmative Duties (duty established by a relationship or nonfeasance and misfeasance)
 Misfeasance v. Nonfeasance - Distinguish misfeasance (active misconduct causing injury; taking control of the risk) from
nonfeasance (passive inaction or not causing harm, but being in a position to avoid or prevent harm not caused by a wrongful
act of that person.) E.g. Restatement 2d Section 321
o When you move from nonfeasance to misfeasance, then there may be more responsibility involved because you’re taking
an action regarding the incident.
 Reliance - There is also a question of reliance. Taking action may make others rely upon them, at which point you owe a greater
duty to them, because you willingly took action, and no longer performing that action without notice will increase the risk to those
who relied on it.
 Contract - You may also have an affirmative duty based on contractual obligations. Keep in mind.
19.1. Duty to Rescue
19.1.1. Rule
 Common law rule: No duty to rescue a stranger. See Buch.
19.1.2. Exceptions:
 Negligent performance of undertaking to render services, if you have begun to render services then you have a greater duty
R 2d §323, Stewart; R 3d §§ 42 & 43.
 If defendant caused the harm, then they must render aid Restatement 2d Section 322, Tubbs; R 3d § 39.
 Certain relationships with the injured person, R 3d § 40
1. Common carriers (strict standard of care): Restatement 2d Section 314A
2. Innkeepers: Restatement 2d Section 314A
3. Business inviters: Restatement 2d Section 314A
4. Employers: Restatement 2d Section 314B (in imminent danger and helpless)
5. School: Restatement 2d Section 320
6. Landlords
7. Custody: e.g., Parents: Restatement 2d Section 320 (must be under legal obligation or have voluntarily taken custody)
 Duty to third persons based on certain relationships with the person causing the injury Restatement 2d Section 315, R 3d §
41
1. Parents
2. Employers
3. Custodians: Those in charge of persons who they know have dangerous propensities (jailers, teachers, parents,
employers) Restatement 2d Section 319
4. Mental health professionals and patients, Tarasoff
19.1.3. Other Information
 Tarasoff Interpretations – The Tarasoff case can be read in three ways: 1) reasonable care case, they should have exercised
ordinary care to the victim – extension of Rowland v. Christian; 2) professional malpractice case; 3) special relationship case –
see above; 4) statutory requirement.
 Tarasoff Rule – 1) Therapist has professional standards; 2) the patient presents a threat of violence; 3) to a foreseeable victim;
4) duty to warn. This may apply to other professions as well (i.e. doctors).
 Jurisdiction Differences – certain jurisdictions have rules that make it a misdemeanor for not rendering assistance or calling
for aid when you are in a position to do so.
20. Landowner and Possessor Liability – Duties
10
20.1. Rule
 Invitee (Public or Business): Restatement 2d Section 343 – Induced to come on land. Inspect, Warn, and/or Protect. You must
warn and protect the actor from any risk from any artificial AND natural conditions on the land that the defendant knows or
should know that it could foreseeably cause harm and the invitee would come in contact with it. The common law relationship
to this is ordinary care (P x G vs. B).
 Licensee (On the land with the possessor’s consent): Restatement 2d Section 342 – The defendant must warn or protect from
any risk from any artificial AND natural conditions if possessor knows or has reason to know of danger. The common law
relationship to this is that no greater burden is placed on the licensee than the possessor would impose on him/herself. This
includes social guests.
 Trespasser (No consent): Restatement 2d Section 333 – No duty to trespassers. Must have no intentional injury if criminal
purposes, no willful or wanton conduct. If non-criminal, then you have to duty to protect from intentional and reckless injury.
The common law relationship is that the burden is too great in all cases except intentional injury.
20.1.1. Exceptions to Trespasser No Duty Rule
 Frequent or Constant Trespasser on a Limited Area: Restatement 2d Section 335 – Warn of serious known damages (death
or serious bodily harm) caused by creation or maintenance of artificial condition on land. The common law relationship is
that these trespassers are highly foreseeable.
 Discovered Trespassers: Restatement 2d Section 337 – Warn if serious known danger (death or serious bodily harm)caused
by artificial condition maintained on land. The common law relationship is that this particular trespasser is highly
foreseeable and may be affected by the condition on the land.
 Children (Attractive Nuisance): Restatement 2d Section 339 – Duty to eliminate the danger or protect children known to
trespass from dangerous artificial conditions on land that the possessor knows or had reason to know the condition
existed on the land and had reason to know the children will be there. This duty is right below licensee. The common law
relationship is that children are foreseeable to engage in trespassing activities and they are less able to protect themselves.
20.2. Prima Facie Cases
 Determine status of person (invitee, licensee, or trespasser)
 Is the danger foreseeable?
 Is the danger obvious? (If so, you can rely on others to take care of themselves and not have to warn them)
 What did the trespasser know
20.3. Related Cases
20.4. Other Information
 Jurisdiction Differences – There is a split in the courts as to whether or not to have distinctions between the different types of
statuses. 27 jurisdictions still have all three distinctions; 13 jurisdictions have a distinction between trespassers and everyone else
only; 10 jurisdictions have no distinctions at all between those who come on a person’s property (in this case, P x G vs. B).
 Rowland v. Christian – Balance of key factors when no distinctions are present: 1) foreseeability of harm to a plaintiff; 2) degree
of certainty that the plaintiff suffered injury; 3) the closeness of the connection between the defendant’s conduct and the injury
suffered; 4) the moral blame attached to the defendant’s conduct; 5) the policy of preventing future harm; 6) the extent of the
burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for
breach; 7) and the availability, cost, and prevalence of insurance for the risk involved.
CAUSATION
 Must remember that causation is a piece of all other torts. Need to show causation as it applies to negligence, products liability,
and to a lesser extent intentional torts. So this isn’t a separate topic. Here we’re focusing on the “C” in DBCD!!
 Actual Cause and Proximate Cause are questions for the jury. They are matters of fact.
(Legal)
(Proximate)
Cause
Cause-in-fact
Actual Cause – Chapter 2
Factual Cause – R. 3d
Tortious Conduct
Cause
Damage
Proximate Cause
R. 3d Policy Issue - Scope of Liability
Unlawful Intent
Duty/Breach
21. Actual Causation
1.
A History of Causation in the Law of Tort:
(Start with but for rule, and everything under #2 are exceptions to the rule.)
Single Defendants: P v. D = but for
11
2.
3.
4.
5.
Multiple defendants: P v. D1 and P v. D2 = apportion damages [each D = but for] (Revlon – battery given from one defendant,
emotional distress given from other). Think two separate single defendant claims.
Joint Tortfeasors = P v. D1 and D2 (if tortious acts combine to cause harm) [R. 3d § 26: A factual cause] – acting in concert or
multiple tortious acts
At this point in time we are now shifting the burden of difference to the defenant
Substantial Factor = P v. D1 and D2 (Kingston) (if one tortious and either alone was sufficient to cause all the harm) [R. 3d § 27]
Alternative Causation = P v. D1 and D2 (Summers) (if all acted tortiously and fewer than all caused the harm) [R. 3d § 28 (b)]
21.1. Actual Causation – Single Defendants
21.1.1. Overview
 Actual Cause is also known as cause in fact or factual cause. This refers to the physics of the occurrences.
 Defendants must show an alternative theory of what caused the event as opposed to their conduct.
21.1.2. Rule (in supplement)
 FACTUAL CAUSE – Restatement 3d § 26: Tortious conduct must be factual cause of physical harm for liability to be
imposed. Conduct is factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct
may also be a factual cause of harm under § 27.
21.1.3. Prima Facie Case
Single causes or defendants: If harm would not have occurred absent the D’s conduct. (R. 3d § 26)
 1) “But for” test (sine qua non = without which it is not). “But for the defendant acting at all, would the plaintiff
nevertheless have suffered the same harm?” If “no,” then actual cause is established (Hoyt); if “yes,” then other cause(s) are
responsible and actual cause not established against this defendant (Smith, Dillion).
 2) Wrongful Death more probably than not caused death; OR lost chance of survival more probably than not; OR lost
chance of a % chance of survival. More probably than not means 51% or more. If you accelerate someone’s death, it
qualifies for wrongful death.
21.1.4. Other Information
 General Causation – in general it is feasible that something caused something else. This is not enough; P cannot simply
prove it could have happened.
 Specific Causation – refers to what a plaintiff must prove. Plaintiff must prove that a specific conduct done by D created a
specific result. P does this by looking at all possible alternative theories and eliminating them either directly or via other
evidence. If the plaintiff were to suffer the same harm, then we have no specific causation.
 Probabilities – probabilities are not enough to prove specific causation. This will not get you past a directed verdict and to a
jury.
 Circumstantial Evidence – other evidence such as testimony, past history, information surrounding the event, etc used to
illustrate an event could have occurred as stated without any direct evidence. Can be used in court.
 Direct Evidence – observation or other direct proof of the evident occurring.
 “But For” Serious Injury vs. Death – tricky concept. If the jury finds that yes P would have suffered serious injury as
opposed to die or live longer, then D would have caused the damage with their breach of duty. In that case D would have to
pay P for his expected life. Causation also applies to apportionment of damages. If P would have lived to 70 but after losing
his balance he lives to 45, then they have to pay for the difference between the two. D here would only pay for the damage it
has actually caused. THIS IS A JURY QUESTION. They decide what was caused and how much to pay.
 Loss of Chance Approach – MINORITY RULE. This regards the loss of probability. What we’re focusing on is the loss of
chance. Here P can not recover then entire sum of wrongful death, instead the plaintiff can only recover the proportion of
their survival that they lost by the misdiagnosis. (Did it hasten or aggravate an existing condition?) The damages will be
proportional to the actual damages you have suffered. Therefore if P lost a 30% chance of survival that is what you pay for.
Why create this rule? Because it is unfair to hold D guilty for all the damages of her death since she would have probably
died anyway. However, if you eliminate all liability, it is unfair to P. In addition, there will be zero deterrence of other
doctors to ensure that they perform the appropriate diagnosis. When you are already discussing damages that means that you
have already illustrated a duty and a breach of that duty. It is also efficient, because we are only passing on the costs of what
exactly the doctor was at fault for. So the right people pay the right amount. The MAJORITY RULE is the traditional “but
for” and “more probably than not” test.
21.1.5. Related Cases
 Hoyt –saw mill causing fire at Garvey house. Used cir. evidence to show how: wind, previous fire, D’s knowledge
 Smith – bus accident on Main St. P had a bus schedule and stated it was prob that co. P did not eliminate other causes.
 Ford – Admiralty case involving man who went overboard, but no one saw or heard him go over. P proved that D was liable
based on general causation but could not make the link between D’s breach of duty and the specific harm suffered.
 Lyons – parking lot case; D is speeding and hits decedent. Expert stated that even if D followed the speed limit, there still
would have been a fatal accident. So negligence per se did not result in specific causation.
 Dillon – boy dies by falling off of bridge and onto charged wires owned by D. Key concepts. If boy would have died by the
fall anyway, then no harm by D’s negligence. Then court discusses difference in life between dying on wires and dying
moments later. Should D pay for that? Also court discusses pain and suffering regarding the difference of both deaths.
12

Cahoon – D misdiagnosed cancer patient, and did not find cancer. Experts state if D found cancer during initial visit,
decedent would still only have a 30% chance of survival. D’s negligence was not specific causation because would’ve
happened anyway. Court applied the loss of chance approach.
21.2. Actual Causation – Joint and Several Liability
21.2.1. Overview
 Reject the “but for” rule and apply a different standard for joint and several liability.
 P knows at least several of the parties involved.
 Here the plaintiff can sue all defendants or just one of the defendants to get their full recovery. They have this option. At
which point, the plaintiff can get the full recovery from one or all, but they can only get one recovery.
 After this, there can be a separate contribution case in which one defendant tries to get the other defendant to pay their fair
share because their negligent acts also caused the act.
 The acts do not have to be equal. If they acted tortiously and they all combined to cause the damage, then they’re all
responsible.
21.2.2. Rule
 FACTUAL CAUSE – Restatement 3d § 26 applies here as well.
21.2.3. Prima Facie Case
Joint and Several Liability p. 127
 1) Defendant acted in concert to cause harm = agreement to cause harm by tortious conduct. (Katko p. 80)
 2) Defendants acted independently but caused indivisible harm = two or more tortious acts combined to cause the harm.
(Fisher, p. 30; Leichtman p. 32 (employee and employer); RKO, p. 166)
21.2.4. Other Information
 But for vs. Joint Tortfeasors – In but for, D just has to show that result would have happened anyway, which is easy because
there was another tortious act. In joint tortfeasors, P just has to show that one of the defendants acted tortiously and should
be liable. That’s it, D can then go after the other defendants.
21.2.5. Related Cases
 Katko – couple who set up the shotgun trap. They acted together to cause the harm.
 Fisher – black man in the restaurant who would not be served by the manager. Manager and business both liable.
 Leichtman – Radio station mgr who blew smoke on the employee who asked it not to happen. Manager and radio station.
21.3. Actual Causation – Joint and Several Liability (Substantial Factor)
21.3.1. Overview
 Same as joint and several liability. Under this concept, you can go after only one D if they alone could have caused the harm.
 P probably only knows one of the tortfeasors involved although more were probably involved.
21.3.2. Rule
 Multiple Sufficient Causes – Restatement 3d § 27: If multiple Acts exist, each of which alone would have been a factual
cause under §26 of the physical harm at the same time, each act is regarded as a factual cause of the harm.
21.3.3. Apportionment of Liability Rules
 Effect of Joint and Several Liability – Restatement 3d § 10: When under applicable law, some persons are jointly and
severally liable to an injured person, the injured person may sue for and recover the full amount of recoverable damages from
any jointly and severally liable person.
 Intentional Tortfeasors – Restatement 3d § 12: Each person who commits a tort that requires intent is jointly and severally
liable for any indivisible injury legally caused by the tortious conduct.
 Persons Acting in Concert – Restatement 3d § 15: When persons are liable because they acted in concert, all persons are
jointly and severally liable for the share of comparative responsibility assigned to each person engaged in concerted activity.
21.3.4. Prima Facie Case
 P v. D1 and D2 (Kingston)
o If one tortious conduct alone was sufficient to cause all the harm
21.3.5. Other Information
 Tortious and Innocent Conduct Liable - If you have an innocent act and a tortious act and the tortious act alone would have
been responsible and done the same amount of harm, then the tortious actor is responsible.
 Tortious and Innocent Conduct Not Liable - If you have an innocent act and a tortious act but the tortious act was not
sufficient to cause the damage done, then the tortious actor is not liable for the damage.
21.3.6. Related Cases
 Kingston – 2 fires were created and burned down P’s property. It was known the RR Co.(D) started one of the fires, but the
other is unknown. Under “but for” rule D would not have been liable because they can state that the other fire would have
done the damage anyway (no specific causation). This is unfair so court applied joint tortfeasors rule. P showed that D’s fire
would still have caused damage anyway on its own, and D was tortious in starting that fire. D is liable.
21.4. Actual Causation – Joint and Several Liability (Alternative Causation)
21.4.1. Overview
 Same as joint and several liability in where P brings all the D’s to court or only one.
13
 In Alternative Causation though, P has no idea who amongst the defendants actually caused the harm. So, P sues them all.
 This rule is based on Summers v. Tice.
21.4.2. Rule
 Burden of Proof – Restatement 3d § 28
o (a) Subject to Subsection (b), the plaintiff has the burden to prove that the defendants’ tortious conduct was a
factual cause of the plaintiff’s physical harm.
o (b) When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the
plaintiff to a risk of physical harm and that the tortious conduct of one or more of them caused the plaintiff’s harm
but the plaintiff cannot reasonably be expected to prove which actor caused the harm, the burden of proof,
including both production and persuasion, on factual causation is shifted to the defendants.
21.4.3. Prima Facie Case
 P v. D1 and D2 (Summers)
o If all acted tortiously and fewer than all caused the harm.
21.4.4. Other Information
 § 28(b) Explained - Burden of production means who has the responsibility to bring forward the evidence needed. Usually
burden of persuasion and burden of production refer to the same party. The burden of proof to show that there was
tortious conduct is still on P to prove. The only burden of proof that shifts to D is the causation. They have to prove
what exactly they did or did not cause after P shows that there was tortious conduct involved in causing the damage.
 Policy – Don’t want defendants to get off free because P can’t prove who did what. You still want to deter tortious conduct.
 Consequential Control vs. Shared Control – having control one after another is consequential control, all at once is shared.
 Market Share Liability Theory – only applied to DES cases. Many manufacturers of the same product that caused harm. P
could not tell which caused the harm, so courts allowed P to sue all and they paid relevant to their market share at the time.
21.4.5. Related Cases
 Summers – P and both defendants are hunting quail. D knows safety and where P is standing. Quail flushed and D fire at P.
 Ybarra – P has appendectomy, but ends up with injury to shoulder. No expert witness necessary because remote body part.
Practitioner, surgeon, and three hospital employees in room. Now, P came on res ipsa claim. D agrees to duty and breach
but not cause and damage. Don’t know who caused it, and under res ipsa, P can’t prove that D had exclusive control. The
judge says that is unfair to P since he was unconscious. So P sues all of them because the tortious act happened somewhere
among them. They all shared control, they all shared instrumentalities, and if he can show the negligence, then the burden of
proof shifts to D to prove that they didn’t do anything or show that someone else did it.
22. Proximate Cause
1. Distinguish: Actual Causation (“but for”) Ford, Lyons, Cahoon, from Proximate Causation (legal cause or responsible cause)
Marshall, Watson, Gorris, Wagon Mound
2. Definition: policy considerations that limit a defendant’s liability to a person or for a consequence of a tortious act or omission.
When does D stop being responsible for consequences of D’s tortious act?
3. Legal Standards: Foreseeable Consequences: Marshall p. 273
a. Foreseeable Consequences = Majority [confine liability to consequences that were generally foreseeable in the first
place, i.e. at the time of the tortious conduct] R. 3d Section 29 “physical harms that result from the risks that made the
actor’s conduct tortious
i. Parallel’s P x G in the duty analysis
ii. Requires foresight
b. Direct Result = Minority [confine liability to consequences that are not remote in time or place, i.e. which follow in a
direct unbroken sequence or chain of events traceable to the tortious act]. Does foreseeability need supplementation?
R3d Section 30 & Marshall resumed journey hypo.
i. Parallels but for analysis
ii. Requires hindsight
4. Intervening Cause: Watson, p. 277 [based on foreseeability of the intervening act or acts]. Restatement 3d Section 34,35
22.1. Foreseeable Consequences
22.1.1. Rule
 Limitations on Liability for Tortious Conduct – Restatement 3d § 29: An actor’s liability is limited to those physical harms
that result from the risks that made the actor’s conduct tortious.
22.1.2. Other Information
 Direct Result – minority rule. Confine liability to consequences that are not remote in time or place, i.e. which follow in a
direct unbroken sequence or chain of events traceable to the tortious act
 Special Note on Proximate Cause – The phrase legal cause used to encompass both factual and proximate cause. Proximate
cause actually refers to “Scope of Liability”. Tort law does not impose liability on an actor for all harm factually caused by
the actor’s tortious conduct. Factual cause is separate from scope of liability.
 Clean Up Risks – This makes the original tortfeasors liable for all the conduct involved in getting the injured party back to
normal. This is also known as back to normal risks.
14

Foreseeability of Risk vs. Foreseeable Consequences – foreseeable risks is P x G. This refers to the duty that is owed to
other. This is a question of law. Foreseeable consequences refer to causation (proximate cause). This is a question of fact.
 Intentional Acts – defendants are not liable for intentional acts of other parties, unless they had a duty to prevent the
intentional act. Why? Because these acts are unforeseeable. D can’t expect someone to do something intentionally tortious.
 Intervening Acts – If the intervening act is foreseeable, it is not a superseding act, and the original tortfeasor is still liable.
 Process – Start with actual causation. If you have multiple tortfeasors, you may need to apply other tests like substantial
factor to see who in fact is liable. After that, you will still have a proximate cause question.
22.1.3. Related Cases
 Marshall – Truck driver (D) crosses center line (duty and breach – neg. per se) on hill and pushes third party’s car off the
road. Truck driver tries to help get car back on road; P runs up hill to warn other cars of stopped truck. P is struck by
another car driven by Marshall (D). Actual cause – but for negligent driving, P wouldn’t be on hill. Proximate cause – P was
part of clean up risks. Original risks as well as clean up risks are foreseeable consequences. Marshall not liable, but driver is.
 Watson – RR Co. (D) had a leak in one of its tank cars. Leak caused standing puddles of gasoline. Duerr throws match into
gasoline puddle, causing an explosion and hurting P. P sues RR and others. D argues that Duerr’s act is a superseding
intervening act. Court orders to see if Duerr acted intentional. If not, intervening acts that are foreseeable still make D liable
22.2. Intervening Causes
22.2.1. Rule
 Intervening Acts and Superseding Causes – Restatement 3d § 34: When a force of nature or an independent act is also a
factual cause of physical harm, an actor’s liability is limited to those harms that result from the risks that made the actor’s
conduct tortious.
22.2.2. Related Cases
 Watson – discussed above
22.3. Proximate Cause for Intentional Tortfeasors
22.3.1. Rule
 Scope of Liability for Intentional and Reckless Tortfeasors – Restatement 3d § 33:
o (a) Actor who intentionally causes physical harm is subject to liability for that harm even if it was unlikely to occur
o (b) Discusses the factors to be considered in determining exactly what the tortfeasor is liable for. This is greater if
he acts intentionally as opposed to negligently.
o (c) Notwithstanding Subsections (a) and (b), an actor who intentionally or recklessly causes physical harm is not
subject to liability for harm the risk of which was not increased by the actor’s intentional or reckless conduct.
22.3.2. Related Cases
 Gorris – P alleges D violated a criminal safety statute by not guarding P’s sheep and keeping them in appropriate cages and
therefore losing them overseas. The criminal safety statute was made to prevent the foreseen consequence of disease
entering the country not to keep from losing the animals. D’s violation of the criminal safety statute was therefore unable to
support a negligence claim, because he didn’t breach a duty as stated in the statute.
22.4. Foreseeability of Rescuers
22.4.1. Rule
 Rescuers – Restatement 3d § 32: Notwithstanding § 29 or § 34, if an actor’s tortious conduct imperils another or the
property of another, the scope of the actor’s liability includes any physical harm to a person resulting from that person’s
efforts to aid or protect the imperiled person or property, so long as the harm arises from a risk that inheres in the effort to
provide aid.
22.4.2. Other Information
 Wagoner v. International Railway – this case stated that rescuers are foreseeable. The need to have people rescue others in
an accident is a foreseeable danger involved. This is a direct duty. They are foreseeable plaintiffs. Therefore rescuers can
sue for injuries suffered during rescue. 2 part test:
o 1) It does not matter if you were wrong in your duty to rescue; you just have to have a reasonable belief that there
was a need to rescue. (objective person in subjective circumstances)
o 2) Did the rescuer carry the rescue in a reasonable manner?
 Firefighters Rule – This bars recovery by professional rescuers for injuries incurred in the course of their duties. They have
already been compensated ahead of time for the risks inherent in their work.
22.4.3. Related Cases
 Solomon – Father went to help son being arrested. He had no idea it was a lawful arrest because officers were plain clothed
and were not wearing badges. Father tries to get men off son. There was no duty to rescue here, but there is still a question
of whether or not the father thought it was necessary. If so, then P was attempting a reasonable rescue.
22.5. Foreseeable Plaintiffs
22.5.1. Rule
 New Negligence rule:
o Duty (law) – foreseeability of plaintiff, foreseeable risk (P x G)
o Breach (fact) – break statute, custom, duty, etc.
o Cause (fact) – Factual Cause: But for (single Ds); Joint Tortfeasors (multiple Ds)
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o Cause (fact) – Proximate Cause (Scope of Liability): Foreseeable Consequences (maj.) or Direct Result (min.)
o Damages (fact) – Eggshell Plaintiff Rule (tortious actor liable for unforeseen harm)
22.5.2. Other Information
 Orbit of Danger – this is the foreseeable plaintiff doctrine. This lists who is owed a duty at that time the action occurred.
However, this is not set. It is looked at case by case.
 Foreseeability Multiple Tortfeasors – Foreseeability does the job that comparative negligence will do in the future. If there
are other tortfeasors, then we don’t need to apply foreseeability because there are other tortfeasors who can share the liability.
 Foreseeability Single Tortfeasor - If there is only one tortfeasor, then you need to stick to foreseeability because they are
taking the complete damage, and it can be injustice if we make the one tortfeasor pay for everything.
22.5.3. Related Cases
 Polemis – Plank drops into hold of ship and spark causes fire that destroys ship. This is a direct result case. It was a fairly
immediate result. Direct result means liability. It risked immediate harm to the ship, cargo, and people. But the fire was not
foreseeable. If you applied foreseeability this would not make them liable; yet direct result made them liable. Foreseeability
is only relevant to the negligence. Once there is negligence, D pays for all the damage caused as long as it’s direct. Minority
 Wagon Mound 1 – ship is being filled with oil, but it’s seeping out of ship at a slower pace. Duty not to let oil out, but this is
breached. It is noticed later that oil is leaking. Oil goes all around the wharf. Welding and other activities are stopped.
However, after some time and some information from an “expert” welding resumed. Fire started destroying ships and the
wharf. Wharf owner brought suit. Eliminate the “direct” Polemis case, and saying direct is no longer valid. Foreseeability
result is now the new rule. An actor cannot be liable for all damages unless they are foreseeable. It was unlikely that furnace
oil would ignite. Which means, it was even more unlikely that the wharf would go up. Majority
 Wagon Mound 2 - Boat owners get to recover. How so? Isn’t it the same facts? The fire had a degree of foreseeability to a
chief engineer. Subjective foreseeability. Therefore it was more foreseeable that the ship would light on fire and the entire
wharf. They recovered relief. If the judges don’t like the gut feeling justice of it, they change the rule or apply different law.
 Kinsman – Grain elevator company was negligent in inspecting and installing a deadman because it came out of the ground
and broke away with the boat tied to it. Capt of ship does not drop anchors due to panic. Boat knocks 2 other freighters
loose. Bridge personnel not in place to lower bridge, and a huge accident occurs at the bridge forming a dam. Businesses
along with water are flooded. Bridge is destroyed. Court uses the minority direct/indirect result test. The majority will allow
the damages of the flood because it was a direct result of the negligence. These businesses and properties were already
threatened with the same general risk of the river, and this is just a different way of realizing that harm. Therefore, it was
direct result. Dissent wanted foreseeability, and they stated the damage to property around the river was not foreseeable.
 Palsgraf – Man jumps train; package of fireworks falls and explodes; shock causes scales at other platform to hit P. Once you
have a duty and a breach to someone, you have to see how far down the line you can send the proximate cause to other
plaintiffs. In applying the Learned Hand Balance, you can see there is a breach of duty. But to who was that duty owed to?
Was it owed to P? The foreseeability of the plaintiff is the majority rule that comes from the case. The range of
apprehension – the orbit of the danger. Was she harmed because of a breach of duty to someone else? If so, then she was
not in the initial orbit of danger. The orbit of danger here was around the person getting on, not P at the other end.
NEGLIGENCE – SPECIAL RULES
 These are kind of derivative claims. First you need to find the negligence (DBCD), and then you can sue for all the stuff that
happened outside of the actual harm suffered by the plaintiff.
23. Non-liability for Foreseeable Consequences
 Just as foreseeability based proximate cause serves to limit a defendant’s liability for harms that were actually caused by the defendant,
courts have identified a number of situations where foreseeability itself may be too expansive a test for the limits of liability.
23.1. Bystander Emotional Harm
23.1.1. Rule
 (a) Impact Rule – No recovery for emotional distress damages alone in the absence of physical impact caused by the
negligent acting defendant [e.g. Mitchell, p. 294]
 (b) Zone of Danger Rule – No recovery for emotional distress damages in the absence of plaintiff being within the zone of
danger of physical impact. [e.g. Waube p. 294] Preferred rule by Prof. Martyn.
 (c) Foreseeability – [e.g. Dillon p. 298] Majority Rule in some form or another. This is a flexible standard, but can lead to
uncertainty in the law. Recovery allowed on a case-by-case basis depending on:
o Whether P was located at the scene
o Whether P observed the accident
o Whether P and victim were closely related
 (d) Limited Foreseeability – [e.g. Thing, p. 301] Minority Rule In the absence of physical injury or impact recovery allowed if:
o P is closely related to victim injured by D’s negligence
o P is present at the scene of the injury and is aware that it is causing injury to the victim
o P suffers severe emotional distress beyond that which would be anticipated in a disinterested witness.
23.1.2. Prima Facie Case
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 Prove negligence happened to victim. Then you can apply derivative claims.
23.1.3. Related Cases
 Mitchell – Impact Rule case. Woman scared by horses charging her and has miscarriage. Court ruled impact was needed.
 Thing – P’s son is involved in accident she did not witness. When P ran over, she saw her son lying bloody and unconscious.
P sued for emotional harm. Court does not accept the flexible rule of Dillon, and instead adopts a more stringent rule. The
flexibility of the law leads to uncertainty, which causes trouble for the courts since it is more difficult to come to some kind
of general finding, and it opens up for tons of new plaintiffs and defendants leading to more cases regarding NIED.
23.2. Negligent Infliction of Emotional Distress (NIED)
23.2.1. Rule
 Negligent Infliction of Emotional Distress to Non-Bystanders
o (a) Distinguish: Direct victims (those to whom a duty was created to P due to a pre-existing relationship) and
bystanders (those whose claim is derivative)
o (b) Direct Duties include contractual relationships, e.g. Burgess, p. 309, Johnson, p. 313 and duties voluntary
assumed absent contract, e.g., Molien, p. 310
o (c) Bystanders include those who witness injury to another, e.g., Thing, Ochoa, p. 311, Doe, p. 314.
23.2.2. Prima Facie Case
 DBCD – This is actually a direct duty. So this is different from bystander harm.
23.2.3. Related Cases
 Burgess – P goes in for childbirth; cesarean section is needed; doctor informs P there were complications with the birth and
child suffered sever injuries; P suffers emotional distress because of it. Doctor (D) wanted the Court to use the Thing rule
and make P a bystander. Court disagreed and held that a direct duty was owed to both the mother and child.
 Molien - Here, a woman (P) was misdiagnosed with syphilis, and the doctor instructs P to tell her husband that he should get
tested. This represents a direct duty because there was an undertaking by the doctor to warn the husband. He had begun
to render services, and therefore a duty has been created. Therefore, any negligent action which causes emotional distress is
a breach of duty to both parties, and therefore both can sue.
23.3. Injury to Personal Relationships (Loss of Consortium)
23.3.1. Rule
 Loss of Consortium:
o Distinguish – Harm to a significant personal relationship [Loss of Consortium] from harm caused by observing an
injury [Bystander liability] or from the actual harm itself to a significant other.
o Loss of Consortium generally recognized for spouses, not for other relationships. Must be pleaded as a separate
cause of action for the non-injured spouse.
23.3.2. Prima Facie Case
 Must prove harm via negligence first and then can be plead with bystander liability as a derivative claim.
 A spouse can sue for losing a spouse or for losing a personal relationship. This is widely recognized, but Martyn disapproves.
24. Prenatal Harm
 These issues below all involve negligent actions that adversely affect children prior to birth. As is true with the other rules above, they
all involve situations in which courts fear that a foreseeability-based definition of the scope of liability may sweep too broadly.
24.1. Wrongful Death
24.1.1. Rule
 Wrongful Death: Should a fetus injured in utero be entitled to compensation? [p. 325-27]
o (a) Wrongful Death statutory language governs: When is a fetus a “person?” e.g. Werling, p. 322
o (b) All courts agree that if fetus is born alive, cause of action for prenatal injury is stated.
o (c) Most agree that if the fetus is viable when injured, a cause of action is stated, whether the fetus is born alive.
24.2. Wrongful Birth
24.2.1. Rule
 Wrongful Birth: Should parents of a child have a cause of action against a defendant whose negligence cause or failed to
prevent the pregnancy?
o (a) Costs of the pregnancy usually are recoverable, p. 329
o (b) Costs of raising the child generally are not recoverable, unless the negligence of the defendant failed to prevent
birth of a child with foreseeable disabilities, p. 329-31
o (c) This usually applies to sterility operations such as vasectomies, and it applies to genetic counseling. This refers
to people who want to see if there is a problem with their child regarding genetic issues. The doctor negligently
diagnoses the genetic deficiency, and a child is born with a horrible defect. They can sue to try and recover.
24.3. Wrongful Life
24.3.1. Rule
 Wrongful Life: Should a child born alive have a cause of action for prenatal or preconception injuries? p. 331-32
o Yes, if injured, Renslow, p. 331
o Generally, no if the “harm” is being born.
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o
Most recent cases do allow a cause of action for children with severe birth defects for pain and suffering to be
endured during a limited life span, e.g., Turpin. p. 332, and for living expenses caused by the disability that will be
incurred after the child reaches majority.
25. Economic Harm
 Most often economic harm is based on promise. This is found usually in Contracts as opposed to Torts. Torts looks at mostly
physical injury and damage to property.
 Courts look at the economic harm and state that the parties should have been in contract to recover for any losses that occurred
between the parties. If not, then they lose.
 Torts do have a small section of economic harm that it focuses on.
 These issues concern those where there is no contract, and someone’s negligence affects other parties.
25.1. Rule
 The general rule is that parties cannot recover.
 If there is accompanying physical harm or intentional harm, then you can add the financial loss to it.
25.2. Other Information
 Why the rule? Two reasons:
o 1) Administrative: If you allow parties to begin to recover for financial losses, where do you draw the line before a large
number of plaintiffs begin to raise claims?
o 2) Disproportionality: Refers to the extreme costs that the party causing the injury could be made to paid and the affect
it would have on the insurance carriers.
 Types of Claims – Defamation, injurious falsehood, and loss of consortium are all recognized torts on their own, and they have
their limits and purposes. There are a few more exceptions, but these are the ONLY exceptions. These typically stand on other
recognized Torts, and the financial harm is just added on to the rest of the charges in the complaint.
 Union Oil v. Oppen - There is a totally undeterred defendant without having environmental agencies coming for the defendant.
So the Court instituted the limited foreseeability rule for economic harm. No one else could bring suit to them, so they
allowed the fishermen to sue. They were directly affected by the spill, and they lost their livelihood for some time. They are really
the only conceivable plaintiffs who were not too remote.
25.3. Related Cases
 Barber Lines – P’s boat could not dock in designated pier because of oil. P suffered extra financial costs and sued to recover.
Controlling law denies that a plaintiff can recover damages for negligently caused financial harm, even when foreseeable, except in
special circumstances.
NEGLIGENCE – AFFIRMATIVE DEFENSES
 Comparative responsibility applies to all of negligence and to intentional torts as well. It also applies to physical injury and to property.
 Apportionment of Liability is the new law that looks at comparative fault and how to implement it in the courts today.
26. Contributory Negligence
26.1. Rule
 Restatement 2d 463: Conduct on the part of the P which falls below the standard to which he should conform for his own
protection, which is a legally contributing cause co-operating with the negligence of D in bringing about the P’s harm. Total bar to
P’s recovery. E.g., Brown, p. 148, Butterfield, p. 353.
26.2. Prima Facie Case
 Did plaintiff use ordinary car in his actions?
o Yes, then D is liable.
o No, then it is a complete bar for recovery.
26.3. Related Cases
 Butterfield – Rider (P) is riding pretty hard down highway. D has pole across part of highway while engaging in repairs. P hits
pole suffers harm. Court found that he had a want of ordinary care in his actions, and therefore barred all recovery.
27. Last Chance Rule
27.1. Rule
 Restatement 2d 479, 480: Created to mitigate the harsh all or nothing result of contributory negligence doctrine. If applicable,
allows P to recover in full. Davies, p. 353. The defendant was the last to act, and he had the last opportunity to avoid the accident
completely. However, if his negligence precludes him from doing that, he is still liable.
27.2. Prima Facie Case
 Look at who was last to act:
o If D, then did his negligence preclude him from avoiding harm? If yes, can recover in full.
o If P, then his negligence will prevent him to recover.
27.3. Related Cases
 Davies - D had his donkey tied by a public highway. Its body was still sticking out. P came down at a “smartish” pace and hit the
donkey killing it. P sued for donkey’s death. P is entitled to recover because D had chance to avoid accident if not for negligence
28. Comparative Negligence (Modern Rule)
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28.1. Rule
 Comparative Fault (by statute or common law), p. 360-364. P’s recovery is a function of the percentage of the total fault of all
the parties to the claim, taking into account the nature of the conduct of each party at fault and the extent of the causal relation
between the conduct and the damages claimed. E.g., Uniform Comparative Fault Act, p. 366. Generally, abolishes last clear
chance and secondary implied assumption of risk. R3d Sec. 3
o Majority: Modified Comparative Fault: P can recover so long as P’s share of causally related negligent conduct is less
than D’s. If P’s share is greater than (or equal to, depending on jurisdiction) D’s fault, then P cannot recover.
o Minority: Pure Comparative Fault: P’s recovery is reduced by P’s share of fault that causes harm, but never eliminated
until D is no longer at fault.
28.2. Apportionment of Liability Rules
 Issues and Causes of Action Addressed by This Restatement – Restatement 3d § 1: This restatement addresses issues of
apportioning liability among two or more persons. It applies to all claims (including lawsuits and settlements) for death, personal
injury (including emotional distress or consortium), or physical damage to tangible property, regardless of the basis of liability.
 Proof of Plaintiff’s Negligence and Legal Causation – Restatement 3d § 4: D has the burden to prove plaintiff’s negligence, and
may use any of the methods a plaintiff may use to prove defendant’s negligence. Except as otherwise provided in Topic 5, the
defendant also has the burden to prove that the plaintiff’s negligence, if any, was a legal cause of the plaintiff’s damages.
 Effect of Plaintiff’s Negligence When Plaintiff Suffers an Indivisible Injury – Restatement § 3d 7: Plaintiff’s negligence (or the
negligence of another person for whose negligence the plaintiff is responsible) that is a legal cause of an indivisible injury to the
plaintiff reduces the plaintiff’s recovery in proportion to the share of responsibility the fact finder assigns to the plaintiff (or other
person for whose negligence the plaintiff is responsible).
 Factors for Assigning Shares of Responsibility – Restatement 3d § 8: Factors for assigning percentages of responsibility to each
person whose legal responsibility has been established include:
o (a) the nature of the person’s risk-creating conduct, including any awareness of indifference with respect to the risks
created by the conduct and any intent with respect to the harm created by the conduct; and
o (b) the strength of the causal connection between the person’s risk-creating conduct and the harm.
 Apportionment Section 10: Written above applies here as well.
 Effect of Several Liability – Restatement 3d § 11: When, under applicable law, a person is severally liable to an injured person for
an indivisible injury, the injured person may recover only the severally liable person’s comparative-responsibility share of the
injured person’s damages. Only get their fair share.
28.3. Prima Facie Case
 Modified – look at P’s comparative responsibility.
o Was it over 51%?
o Yes, then bar recovery.
o No, then get amount minus percentage of fault attributed to P.
 Pure – look at P’s comparative responsibility:
o Take number, and subtract from 100%
o D pays remainder
28.4. Hypos
Modified
Pure
P = 49%
D = 51%
The defendant will recover $51,000
The defendant will recover $51,00
P = 50%
D = 50%
P = 51%
P = 20%
D = 49%
D1 = 50% and
uninsured
D2 = 15% and rich
but no insurance
The defendant will recover $50,000 in most
jurisdictions, but it depends on the statute because
some statutes state if the fault is equal then they bar
recovery.
The defendant will recover $50,000
The defendant will collect absolutely nothing.
Plaintiff gets $80,000.
The defendant will recover $49,000
Plaintiff gets $80,000
Plaintiff would then recover $50,000 from D1,
$15,000 from D2, and $15,000 from D3.
Plaintiff would then recover $50,000
from D1, $15,000 from D2, and
$15,000 from D3.
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D3 = 15% and
plenty of insurance
* If there is several liability, then the plaintiff can
collect this amount from any of the parties. Many
jurisdictions kept this along with joint and several
liability statutes.
**This is known as the aggreate theory. The
plaintiff did not act more negligently than the
aggregate amount of all the defendants.
*** Partial aggregate theory is in place if the plaintiff
shows that one of the parties cannot pay the verdict,
and at the point the money is then thrown back to
the other defendants for them to pay.
29. Assumption of Risk
29.1. Rule
 Assumption of the Risk: R 2d Sec. 496A-E: Knowing (completely understanding) and Voluntary (not coerced or of
“practical necessity” to the public) agreeing to accept the risk of D’s negligent conduct. [Equivalent of consent defense in
intentional torts] If applicable, bars P’s recovery in full.
o Express A/R: express agreement by words to accept a risk. R 358B, e.g. p. 359. See also R 3d Sec. 2, Contractual
limitations on liability. Also known as primary A/R. This is a question of duty. (only one that still exists)
o Implied A/R: implied agreement from the conduct of the P. R 496C. Abolished by judicial decision, e.g., Meistrich, p.
356, or comparative fault statute or decision, e.g., Li, p. 369, R 3d Sec. 3 Majority Rule
29.2. Apportionment of Liability Rules
 Contractual Limitations on Liability – Restatement 3d § 2: When permitted by contract law, substantive law governing the claim,
and applicable rules of construction, a contract between the plaintiff and another person absolving the person from liability for
future harm bars the plaintiff’s recovery from that person for the harm. Unlike a plaintiff’s negligence, a valid contractual
limitation on liability does not provide an occasion for the fact finder to assign a percentage of responsibility to any party or other
person. (Express Assumption Risk)
 Ameliorative Doctrines for Defining Plaintiff’s Negligence Abolished – Restatement 3d § 3: Plaintiff’s negligence is defined by
the applicable standard for D’s negligence. Special ameliorative doctrines for defining plaintiff’s negligence are abolished.
29.3. Prima Facie Case
 Look for contractual obligation that is both knowing (COMPLETE understanding) and voluntary.
29.4. Other Information
 Restatement 2d Info:
o Section 496 B R 2d is express assumption of risk
o Section 496 C R 2d is implied assumption of risk – this has been abolished.
o Essentially there is no A/R. This has been reduced to contract, duty, and contributory negligence questions.
o The abolishment of secondary assumption of risk is the majority rule.
o Section 496D is still around for express assumptions of risk as it defines knowledge.
o Section 496E is still around for express assumptions of risk because it explains voluntary.
 Primary A/R – Primary deals with the idea that a defendant did not owe a duty to the plaintiff or that there was no breach of the
existing duty. This is a duty question, P x G vs. B. This isn’t really assumption of risk though. This is duty more
 Secondary or Implied A/R – Secondary implied assumption of risk is that the defendant did owe a duty, they breached the duty,
but the plaintiff did not act reasonably. This deals with contributory negligence.
29.5. Related Cases
 Meistrich – Ice skating rink not prepared properly, and P gets injured. D stated P contributed to injury and assumed the risk.
However if you have express assumption of risk, then they need to tell you what the dangers of risk are. Knowing means you
know the risk, and voluntary means that you are willing do it on your own. There was no express assumption of risk here because
there was no oral or express assumption of risk here. Court rejects primary (duty) and secondary (comp neg) A/R. Only contract
 Knight – P sued D for injuries suffered in touch football game. The rule of the case discusses active sports, and it eliminates
negligence here for the purposes of the case. It only focuses on intentional and recklessness. Court takes secondary A/R and
puts it into comparative fault. Only primary survives, but court makes this a duty question. Was there a duty owed here?
30. Immunities
 Must know if and when it exists.
30.1. Rule – Government Immunity
 No legal right to sue the authority that makes the law on which the right depends, absent consent of the authority. p. 371 (barred)
30.2. Rule – Charitable Immunity
 Largely abolished. p. 372
30.3. Rule – Intra-Family Immunity
 Spouses and Parent-Child, p. 373. Parental Immunity – Court ruled that the immunity only applies to the “exercise of parental
authority, the performance of parental supervision, and the provision of parental care and custody.”
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DAMAGES
31. Damages
31.1. Oveview
I. General Categories and Concepts
a. Nominal Damages – “in name only” = Intentional Torts (e.g., Chap. 1, 10)
b. Compensatory Damages – Amount necessary to restore P to pre-injury condition
c. Punitive Damages – to punish and deter socially unacceptable behavior. Zenobia, p. 598. See also, Williams v.
Phillip Morris
II. Compensatory Damage Rules:
1. Single Controversy Doctrine: Plaintiff is entitled to recover in a lump sum for all damages proximately caused by the
tortfeasors(s), and for all damages that will occur in the future, and is barred from any subsequent adjustment. You have
one chance to bring up all your claims, and if you don’t, you lose the ability to claim it. This works for damages as well.
Must think of the past and the future.
2. Eggshell P Rule: Once liable, D must pay for all harm to P caused by his wrongful conduct, even those unforeseen at
the time of the conduct. Vosberg, p. 13, 258; R 3d 31
3. Avoidable Consequences Rule (mitigation of damages): party seeking damage due to the tortious conduct of another
must use reasonable and proper effects to make the damage as small as possible. P. 536, 540-541. R 3d Apportionment
of Liability Section 3 comment b. – Here, you have to act like a reasonably prudent person and do what is necessary to
help mitigate the extent of the damages.
4. Collateral Source Rule: Once liable, D must pay for all harm caused to P even if P received some previous payment
from a collateral source, such as insurance or an employer. P. 541-42, 545-47 – Even though some people recover
damages from other sources, this does not prohibit the tortfeasor from having to pay. There is a need to properly deter
the tortfeasor, and alleviating that because of insurance or gratuity, would not be a proper deterrence.
III. Compensatory Damages Categories:
a. Special Damages
i. Medical and Rehab Expense: Past and Future, p. 535, 541v, 556-57
ii. Lost Work: Past and loss of future earning capacity, p. 547, 549-51; Grayson
b. General Damages = Pain and suffering: Past and future, Walters, p. 570-71, 577.
IV. Adjustments
a. Future Damages: Discount to present value, p. 562 – done automatically in most jurisdictions regarding bringing
the amount. If you’re supposed to get a certain amount for the rest of your life, then you have to determine how
much money would be needed to invest in a safe investment in order to get that 2 million. Or how much would be
needed in an annuity to get that 2 million dollars.
b. Inflation: Considered if expert testimony provided, p. 564-65. – Not done automatically in all jurisdictions.
c. No Income Tax on compensatory damages, p. 565. – When you look at tax, you do not get charged on
compensatory damages. The argument comes around what can be included in compensatory damages.
V. Death: Read the Statute(s), p. 597.
VI. Personal Property p. 598.
31.2. Rules
 General and Special Damages – Restatement 2d § 904:
o (1) “General Damages” are compensatory damages for a harm so frequently resulting from the tort that is the basis of
the action that the existence of the damages is normally to be anticipated and hence need not be alleged in order to be
provided.
o (2) “Special Damages” are compensatory damages for a harm other than one for which general damages are given.
 Punitive Damages – Restatement 2d § 908 (Majority Rule – Implied Malice & Preponderance of the Evidence):
o (1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish
him for his outrageous conduct and to deter him and other like him form similar conduct in the future.
o (2) Punitive damages may be awarded for conduct that is outrageous, because of D’ evil motive or his reckless
indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character
of D’s act, the nature and extent of the harm to P that D caused or intended to cause and the wealth of D.
 Damages for Past, Present, and Prospective Harms – Restatement 2d § 910: One injured by the tort of another is entitled to
recover damages from the other for all harm, past, present, and prospective, legally caused by the tort.
 Avoidable Consequences – Restatement 2d § 918:
o (1) Except as stated in Subsection (2), one injured by the tort of another is not entitled to recover damages for any harm
that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort.
o (2) One is not prevented from recovering damages for a particular harm resulting from a tort if the tortfeasor intended
the harm or was aware of it and was recklessly disregardful of it, unless the injured person with knowledge of the danger
of the harm intentionally or heedlessly failed to protect his own interests.
 Effect of Payments Made to Injured Party – Restatement 2d § 920A:
o (1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his
tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability.
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(2) Payments made to or benefits conferred on the injured party from other sources are not credited against the
tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable. Collateral source rule.
31.3. Eggshell Plaintiff Rule
 Preexisting Conditions and Unforeseeable Physical Harm – Restatement 3d § 31: When an actor’s tortious conduct causes
physical harm to a person that, because of preexisting physical or mental condition or other characteristics of the person, is of a
greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such
harm to the person.
31.4. Wrongful Death
 Survival Statute – before if P died then there was no recovery because the person isn’t suffering any more, however now statutes
state that even if P or D die before the case is tried, the case can still continue and any recovery will go to the estate. Whatever
damages P is entitled to; she still gets it even if she is dead.
 Wrongful death statutes – are enacted when you can prove that the tortious conduct of the defendant caused the death of the
plaintiff. Wrongful death also gives you a different plaintiff. The plaintiff is now the named beneficiaries in the case of her death.
 Three categories in wrongful death recovery – 1) funeral costs, 2) lost wages and services, and 3) emotional harm suffered by her
loved ones.
31.5. Punitive Damages Constitutional Constraints
 Due process requires adequate guidance from a court to enable a jury to properly enter into the correct constitutional calculus.
Criteria of reasonableness or reasonable notice to defendants include:
o 1) Proportionality of the award to the harm likely to result (economic or physical harm; repeated or isolated misconduct,
single digits multiples) Compare: St. Farm v. Campbell (4 to 1) with Mathias (37.2 to 1) with Williams (97 to 1)
o 2) Sanctions should be based on the wrong done, i.e. reprehensibility of the D’s conduct.
o 3) Profitability of D’s conduct.
o 4) Financial position of D if it enables D to make litigation costly, especially if Ps are financially vulnerable (all the costs
of the litigation)
o 5) Imposition of other criminal or civil sanctions, taken as mitigation. If they have already been deterred via other
methods, then we do not need to further deter them and can reduce punitive damages.
 In order to meet Constitutional constraints, it must meet all factors. In the unusual case, 2 to 5 is met, but number 1 isn’t met.
31.6. Other Information
 Subjectivity – damages are completely subjective to each case. The same set of facts will not produce the same results.
 Subrogation – If an insurer pays for most of your damages, the insurance company can go after the tortfeasor to recover the
money it spent on the hospital bills, etc. They are given the same rights as the victim since they are subrogating, or standing in the
victim’s shoes. This can only happen if there is a contract between the health insurance and the victim.
 Entitlement – a victim is entitled to all three types of damages falling under general and special damages.
Past (time of injury until settlement/judgment)
Future (time of settlement/judgment until P dies, if
permanent, or until injury continues to cause damages)
Medical and Rehabilitation Expense p. 535
Medical and Rehabilitation Expense p. 541, 556-57
Lost Earnings p. 547
Impairment of Earning Capacity p. 549-551; Grayson, p. 557
Pain and Suffering Walters, p. 566
Pain and Suffering p. 577
 Medical Expenses – difficult to determine future medical expenses because of where medicine is now.
 Probability of Future Expenses Arising (2 Different Rules by Jurisdiction):
o 1) If the probability is less than 50%, then you cannot recover for that future expense.
o 2) If the probability can be determined, then you can multiply that by what the cost would be to the victim and awarded
to the victim.
 Factors to Determine Loss of Earnings - How long you’ve been out of work? How much were you paid? How long will you be
out of work? Will the injury affect your future promotion opportunities or future success? Will you not be able to work as long
as you wanted to? Will the person perform at the same level?
 Pain and Suffering:
o Pain – physical pain that the person suffers
o Suffering – embarrassment, loss of future enjoyment of life
 Settlements – The rules of damages apply to only those verdicts that went into trial. If you settled, then you can avoid all the rules
and come to a lump sum both parties feel comfortable with.
 Structured Settlement – This is another option to lump sum settlement. Defendant will buy an annuity, and pay attorney fees and
other damages up front. The rest of the settlement will be paid out in an annuity. This is a contract.
31.7. Related Cases
 Grayson – young vocalist is injured on poorly lit sidewalk, and suffers hearing damage. Rule: you have to find out how much
those careers make, and then multiply it by the probability that P would have reached that level. Artists are tough to gauge.
 Walters – housewife has tumor removed, and doctor’s malpractice leads to severe complications and loss of life expectancy.
Counselor makes testimonial like claim, but not big enough mistake to overturn. Learn categorical approach. Divide damages
into as many categories as possible, and fill in the buckets. Also, court states will not overturn judgment if it doesn’t shock the
conscience of the court.
o
22


Zenobia – P sued for damages alleged to have been caused by asbestos manufactured by D. D knew of the dangerous fibers.
This case dismissed the old standard and me made the new standard of actual malice (evil motive, ill will, intent to injure, or
fraud). This case also changed the standard of evidence. It made it clear and convincing evidence (much more likely) instead of
preponderance of the evidence. This applied to only nonintentional torts. Actual malice (Minority Rule) – knowing the
dangers, and not doing something about it or purposely telling others not be concerned with.
Matthias – Bed bugs case. D knew they had bed bugs and tried to hide it. P was guest, and was bit several times. Supreme Court
had a rule that only in unusual circumstances can punitive damages be greater than a single digit ratio compared to compensatory
damages. Also, if the punitive damages are lower, then there would be no deterrence. It is important to make sure that others
learn from this. Mathias falls under the unusual case stated by the Supreme Court whether more than single digits can be allowed.
STRICT LIABILITY
 You can deter more defendants with strict liability than basic negligence because plaintiffs do not have to prove duty or breach. This
makes the cases a lot easier to prove.
32. Worker’s Compensation
32.1. Overview
 Worker’s Compensation: Employee v. Employer for injuries – the only activity that must be done here is employing the victim.
This is a version of strict liability:
o (a) Arising out of employment (but for causation) and
o (b) In the course of employment (time, place and circumstance)
32.2. Rule
 Statutory administrative relief from a statewide insurance fund for accidental workplace injuries that 1) arise out of (caused by)
and 2) occur in the course of (occur on the job: look at time, place circumstances) the employment. Damages are limited to
health care and rehab costs plus some but not complete wage replacement. No pain and suffering, which you can get in tort law.
32.3. Prima Facie Case
 Employee/Employer Relationship
 Accident or negligence
 Scope of employment (arising out of or in the course of)
 Harm
32.4. Other Information
 Worker’s comp and tort law cannot be used at the same time against an employer.
 Worker’s comp applies except when it is an intentional tort. Intentional torts fall under basic tort law.
 However, that does not mean you cannot sue someone else (a third party).
 Sexual harassment has regularly not been included in worker’s comp, and some states under Title VII take out racial and sexual
discrimination out of worker’s comp and make it tort law.
33. Vicarious Liability
33.1. Overview
 Vicarious Liability: Third person vs. Employer: Master (Employer) is vicariously liable for the torts of its servants (employees)
[but not for the torts of independent contractors] committed within the scope of employment.
o (a) Here the activity is something occurring within the scope of employment
o (b) Vicarious liability is very important in tort law. It gives you a deep pocket, and it gives you a source of recovery.
33.2. Rule
 Restatements 219, 409, 220, 229 (Scope of Employment)
33.3. Prima Facie Case
 Wrongful Act: None (by employer); strict liability for employee’s torts within the scope of employment
 Causation: but for employment, harm would not have occurred.
 Damage: calculated according to the underlying tortious act.
o 1) Servant = R 2d Agency Section 220; Independent Contractor = R2d Torts Section 409 p. 137
o 2) Scope of Employment = R Agency Section 229 p. 138
o 3) Exceptions: p. 140
 (a) Negligence in selecting, supervising or instructing independent contractor
 (b) Non-delegable duty, p. 140 – almost always a statute that imposes the duty on the employer
 (c) Inherently dangerous work e.g., Chapter 5
33.4. Other Information
 Intentional Torts – Even if it is an intentional tort, it may still leave employers vicariously liable.
 Employees v. Independent Contractors – Must distinguish between employees and independent contractors. When the
employment status is different, then it will not meet the legal standard required for a master-servant relationship and thus doesn’t
meet the restatement.
 Policy:
23
Instrumental: Strongest possible deterrence and incentive to control risk also counters practical difficulties of proof;
efficient to pass on costs of doing business in the cost of goods and services. Encourages employers to optimize how
employees act and whether and to what extent they act.
o Non-Instrumental: Greatest possible compensation to P’s; fair to impose liability for non-reciprocal risks created by
business enterprise as a quid pro quo for legally recognized right to do business through agents.
 Franchises – This all depends on who has the control over the thing causes the risk. Doesn’t matter what the franchise contract
says, according to the courts. It depends on manuals and what not. Who controls the item that causes the harm?
34. Strict Liability (Activities)
34.1. Rule
 Abnormally Dangerous Activities – Restatement 3d § 20:
o (a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from
the activity.
o (b) An activity is abnormally dangerous if:
 (1) The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is
exercised by all actors, AND
 (2) The activity is not one of common usage.
 Strict liability should be reserved to the activity that brings the danger to the community.
34.2. Prima Facie Case
 For certain activities:
o Activity:
 Possessing Livestock that Trespass
 Keeping Wild Animals
 Non-natural activity (Rylands)
 Non-general or non-ordinary activity (Turner)
 Ultra hazardous activity (R 1st – Foster)
 Abnormally Dangerous Activity (Siegler)
o Causes: (Proximate) R. 2d Section 524A, (Foster)
o Harm
34.3. Animal Strict Liability
34.3.1. Rules
 Restatements 504 – 518 starting on page 100 in the supplement.
34.3.2. Examples
 What if Ds pet goat injures P’s property and bites P’s child?
o Must determine what type of animal a goat is. If a goat is livestock, then the defendant would be strictly liable for
the damage to the property. Since it is a domestic animal, the common-law according to Rylands v. Fletcher, leaves
the defendant liable only for the trespass and damage done to property.
o However looking at the Restatement Section 504, a person may be liable for all harm done on the property from the
livestock, including the bite, for all things that were reasonably to be expected from that circumstance. Here you
have to look at what is reasonably expected from a goat and from this particular goat.
 What if D kept a half dog/half wolf?
o Well then you have to make a determination of whether the animal is a dangerous domestic animal or if it is a wild
animal. If it is a wild animal, then the person is liable for all damages that are resulting from its natural tendencies.
o If the attack happens three days later, D may not be liable because D is no longer liable once an animal has returned
to its natural state in the wild.
 What if the defendant kept a half-dog/half-wolf and it is a abnormally dangerous domestic animal?
o Must look at Restatement Section 509.
o Here you would have to look at if D knew of that particular animal’s dangerous propensities. This is occasionally
referred to as the one-bite rule. The animal must have done something beforehand to suggest it is dangerous. Most
jurisdictions follow this common-law principle.
 What if an injury occurred in a zoo?
o There is strict liability against private zookeepers.
o The same type of accident involving public zookeepers is a negligence claim.
o With a public zoo, it is a reciprocal risk because the citizens of the area have agreed to have the zoo close-by. With
a private zoo, a company made that decision to have it. This is not a reciprocal risk; the people did not ok the risk.
34.4. Nuisance
34.4.1. Rule
 General Rule – Restatement 2d § 822: One is subject to liability for a private nuisance if, but only if, his conduct is a legal
cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either
o (a) intentional and unreasonable, or
o (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct or
for abnormally dangerous conditions or activities.
o
24
34.4.2. Other Information
 Restatement 2d § 519 – discusses what the liability is with abnormally dangerous activity.
 Restatement 2d § 520 – gives information to determine what is abnormally dangerous activity (New Learned Hand Super
Balance).
o (a) high degree of risk
o (b) gravity
 This together looks like Learned Hand’s foreseeability
o (c) negligence enough and policy – lose evidence because of explosion, policy concerns are what these cases turn
on. In this case, it is efficiency
o (d) common usage (Fletcher)
o (e) appropriate to place – if not appropriate, if some other way to do it.
o (f) value to community – not in this case.
 Subsection d, e, and f are all burden
 Posner Extrapolation Theory - 1) Extrapolate the burden; 2) See if the burden is too high; 3) If so, cannot give strict liability.
Depending on what you’re trying to do, you can make foreseeability or burden huge. So Posner admits the policy is the key.
The greater the risk of the accident, the more we want to give D an incentive to start thinking for a safer way of doing it.
34.4.3. Related Cases
 Atlas – Strict liability will attach in Texas whenever pollutants are intentionally discharged. Plaintiff told defendant to stop
polluting. They continued. Texas applied strict liability, but probably could have applied nuisance.
 Seigler – P gets into accident with a pool of gasoline after freight drunk dumps the gas. Gas ignited and huge explosion
followed. P died, and the proof was destroyed. Supreme Court – brought back res ipsa and strict liability charges, but
decided to state that this was basic strict product liability. Res ipsa is not really necessary because the big reason is because of
the material that was being transferred (dangerous activity).
 American Cyanamid Case – Railroad car spills very dangerous material. It is the 53rd most dangerous material. If you
impose strict liability on 53, then the top 52 should have that liability as well. That is bad policy because that is a large burden
to everyone. People want to buy this material that is lawful, and this material is needed. So if you extrapolate that, then the
burden would be huge.
 Foster – Mink farm was losing mix because of blasting; P informed D. D changed blasting habits. He actively changed his
protocol because of it – this shows that there is no nuisance because he changed what he did after finding out what
happened. Strict liability claim was still pursued, but this was not one of the foreseeable risks (debris, vibration, etc.) Rule:
constrain strict liability to what is foreseeable.
34.5. Affirmative Defenses
34.5.1. Rule
 Comparative Responsibility – Restatement 3d § 25: If the plaintiff has been contributorily negligent in failing to take
reasonable precautions, the plaintiff’s recovery in a strict-liability claim under §20 – 23 for physical harm is reduced in
accordance with the share of comparative responsibility assigned to the plaintiff.
34.5.2. Other Information
 R.2d Section 523 to 524 (page 112 in supplement). This has changed into 3d’s section 25 (handout).
 There is no longer an absolute bar as in 523 and 524 in section 25 for strict liability.
34.6. Related Cases
 Fletcher – Built pond above old mine shafts which the engineer should have found. The leaking of reservoir led to damage to the
plaintiff. This type of destruction should have been foreseeable. Person is strictly liable for having this reservoir. Exceptions to
this rule are if the cause of the damage is natural or if the plaintiff contributed to the accident. A person is strictly liable for
property damage, nuisance, and health issues resulting from the defendant’s actions. (fumes, vapors, etc.)
 Rylands – Here the rule is similar to Fletcher v. Rylands except it adds an additional issue regarding the use of what they kept on
their property. You are strictly liable for a non-natural use of your land that causes harm to others.
o What is the meaning of natural and non-natural? The court in England has limited Rylands’ rule to property damage,
and natural or non-natural means usual or unusual. The words “ordinary” and “extraordinary” have been used as well.
 Turner – D created ponds to hold polluted water from oil digging. Polluted water escaped and harmed P’s property. The law
here turns on whether the use of the land was natural and ordinary. It is natural and ordinary for the purposes of getting oil.
Getting oil is to the benefit of everyone else so we need negligence here not strict liability. Rule: In general, must look not only
if the act is dangerous but also if it is natural or ordinary.
PRODUCTS LIABILITY
35. Strict Product Liability
35.1. Rule
 Restatement 2d § 402A – page 81 of supplement. Superseded by Restatement 3d.
25

Liability of Commercial Seller or Distributor for Harm Caused by Defective Products – Restatement 3d Products Liability § 1:
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to
liability for harm to person or property caused by the defect. (Majority Rule)
 Categories of Product Defect – Restatement 3d Products Liability § 2: A product is defective when, at the time of sale or
distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or
warnings. A product:
o (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was
exercised in the preparation and marketing of the product;
o (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided
by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial
chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
o (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings
renders the product not reasonably safe.
 Circumstantial Evidence Supporting Inference of Product Defect – Restatement 3d § 3: It may be inferred that the harm
sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific
defect, when the incident that harmed the plaintiff:
o (a) was of a kind that ordinarily occurs as a result of product defect; and
o (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or
distribution.
 Liability of Commercial Seller or Distributor for Harm Caused by Defective Food Products – Restatement 3d § 7: One engaged
in the business of selling or otherwise distributing food products who sells or distributes a food product that is defective under §2,
§3, or §4 is subject to liability for harm to persons or property caused by the defect. Under § 2(a), a harm-causing ingredient of
the food product constitutes a defect if a reasonable consumer would not expect the food product to contain that ingredient.
(CONSUMER EXPECTATION TEST)
35.2. Prima Facie Case – This is the same for EVERY type of defect!
 Sale or distribution
 Of a Defective Product: Mfg., Labeling, Design (ALWAYS START WITH MFG DEFECT)
 Causes: Actual and Proximate
 Harm: to persons or property
35.3. Comparison Chart
Negligence:
Against Restaurant
Against Bakery
1850: What result under
Only if negligent (not visible
No privity
Winterbottom v. Wright (coach
&wrapped) – must be privity
driver), p. 438: K trumps Tort
(contract) between the
restaurant and the plaintiff
1900: Pre-MacPherson: What
Same
Imminently dangerous to the lives
result under Thomas v. Winchester
of others? Yes (food and
(mislabeled drug that was actually
poisonous) therefore, P can prove
poisoned), p. 438?
negligence.
1920, ff MacPherson, p. 439
Same
Same
1965 (R. 2d)
1965 (R. 2d)
Same
2002 (R. 3d)
R. 3d Section 1 p. 455
Same
35.4. Other Information
 Manufacturers & Retailers – Both are included in products liability. Both the manufacturer and the retailers are sellers. A person
can sue the retailer and the manufacturer or only the retailer, and the retailer can sue for contribution from the manufacturer.
 Manufacturing vs. Design Defect – The main difference between a manufacturing defect and a design defect is how many
products are affected. If it’s only a few products, it is most likely a mfg. defect. If it’s a lot of the products, then the design or
“recipe” is wrong.
 Used Goods - From a seller, there may or may not be liability via product liability when looking at Restatement 3rd Section 8. If
it’s an individual, then they are not in the business of selling goods then they do not suffer strict liability. If anything happened
where the individual applied the lug nuts, then you have a negligence claim.
 Statute of Repose – a period of time that creates an absolute bar to sue which starts on the date of the sale. Only applies to strict
product liability. It does not apply to negligence claims. It is important to have multiple pleadings or plead in the alternative.
36. Manufacturing Defect
36.1. Rule
 Restatement third section 2(a)
36.2. Other Information
26

2d § 402A vs. 3d § 2(a)
o 402A – Consumer expectations test for mfg defect. This goes to jury who represents consumers.
o 2(a) – But if the product is different from its intended design, then who would know that best other than the
manufacturers themselves. Almost a manufacturer’s expectation test.
 Food Products - This is becoming a little clearer in section 7 of restatement third. This is in regards to foreign and natural defect
in food. This finalized the consumer expectation test for food. This is the developing majority standard which came from 402A.
For non-food products, the rule is restatement third section 2A.
36.3. Related Cases
 MacPherson – P drove car to get man to hospital. P’s car tire explodes and injures the parties onboard. Exception of imminently
dangerous products becomes the rule because anything that threatens the person using it is a thing of danger – now privity
doesn’t matter. You can get to the manufacturer of the product. Therefore all things are open to negligence if there is a defect.
For defective products, negligence is proven by showing the probability of danger under Duty, Breach, the proximity or
remoteness of the danger - Proximate and Actual Cause under Cause, and Damage.
 Riley – Here there is an accident involving a space heater. Court applies 3d § 3 regarding circumstantial evidence. It is much like
res ipsa because the product itself has been destroyed. So court allows other evidence to show that the accident was caused by
the product. Look at past history, pieces involved, etc. This all allows the court to make an inference into the defect.
37. Failure to Warn
37.1. Rule
 Restatement Third Section 2(c)
 Majority and Minority Rules
o 1) Duty, when: knows or has reason to know that the chattel is or likely to be dangerous for the use for which it is
supplied. R.2d comment j: knows or should know of the presence of the ingredient or the danger ; R 3d Section
2(c): foreseeable risk of harm posed by the product AND
o 2) Not an obvious danger: has no reason to believe that those for whose use the chattel is supplied will realize its
dangerous condition. R 2d: danger or ingredient is not generally known; R 3d comment j: could have been reduced
or avoided (will not provide an additional measure of safety) AND
o 3) Adequacy: fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it
likely to be more dangerous. R 2d: comment j: warning against the danger, R 3d Section 2(c) by the provision of
reasonable instruction or warnings (comment i) – it definitely matters where you put the warning, in what language
you make them, you may need symbols as well.
o In section A, the duty is restatement 2nd. In section B, the restatement second is the majority, and in Section C, the
restatement 3rd is the majority.
37.2. Other Information
 Why Not Warn? – Because companies want to sell their products, and they don’t want to draw too much negative attention.
 Sophisticated User Doctrine – Sophisticated user doctrine – they look at the product user, and then they look to see if the
warnings would have made a difference because they knew as much as the manufacturers did. Therefore if they know that much,
then warnings would probably not make a difference, and there may not be a duty to warn. (Not adopted by all courts)
 State of the Art Evidence – Important because it shows what a defendant knew or should have known about a particular risk. If
they do not know of the risk, then they cannot warn against it. The plaintiff has the burden to show what the defendant knew or
should have known. They must present what information was available to the defendant. (allowed in some jurisdictions)
 Failure to Warn: Negligence vs. Strict Liability – There is a difference between failure to warn with strict liability when compared
with failure to warn with negligence. With failure to warn cases in negligence, we have to determine the standard of care that is
required. This is done with the learned hand balance (P x G vs. B). The rule for strict liability is that the manufacturer did not
warn for something that was a foreseeable risk. This would look like P x G (there is no B). Once there is a foreseeable risk, then
you have a duty as a matter of law to warn.
 Absolute Liability – you are liable no matter what. Doesn’t matter what was foreseeable or what you knew. Pure strict liability.
This is so far has only applied to asbestos claims.
 Custom – Custom does not apply in strict liability cases because custom only applies to the burden, and in strict liability the
burden has been eliminated from the formula.
 Should Know vs. Reason to Know - Should know is more constructive. It allows a plaintiff to build a defendant’s knowledge,
while reason to know is tougher. Here you have to look at other factors that existed that may have given the defendant clues as
to the danger. Should know is objective. What would a reasonable person know or at least be aware of? Reason to know is
subjective; what did the defendant know or what data did they have at time. (Should know is the majority)
37.3. Related Cases
 Sheckells – Injury is sustained in riding motorcycle by P’s son. Warning on helmet wasn’t specific enough according to the court.
The court determines that there is a foreseeable danger that the defendant knew or had reason to know of that should have made
them issue a warning. The warning was not specific enough. It does not state which risks must be warned against, and in this
case, the warning tried to be general and create an express assumption of risk.
 Owens-Corning – D manufactured products with asbestos. P charges they didn’t properly warn. This court agrees with the
majority that there should be a know or reason to know standard. This case shows how element one of the failure-to-warn
27
prima facie case is slightly different than what is applied to negligence. In strict liability, we do not care why you didn’t warn.
You don’t get the opportunity to balance the risks with burdens. If you know, then you must warn bottom line.
38. Design Defect
38.1. Rule
 Restatement Third Section 2(b)
 There is more of an economic burden with design defects. So you have to balance that burden with the risk utility of the product.
This is very important.
38.2. Other Information
 Majority vs. Minority Rule – Risk utility is the majority rule. Some jurisdictions still use the consumer expectations test for design
defects.
 Expert Testimony – Three things to consider with experts: 1) qualifications; 2) must show the alternative; 3) must show that the
alternative is feasible.
 Defense – Defense can factor in consumer choices in their defense of the design, but they cannot use lose of market share or
other economic harms in their defense.
 Overlap w/ Design Defect and Failure to Warn – 2 separate causes of action. It may not be defectively designed, but then you
can raise a fact question if the warning was sufficient. OR it could be that the warning would just never be sufficient, and you
may argue that there may be a different design that would prevent the danger.
38.3. Related Cases
 Troja – P takes saw off of base and cuts off thumb; sues D for design defect. Risk utility rule is the rule of this case. This is more
like negligence than strict liability because you must show the foreseeable risk and a way to feasibly eliminate it. The case
illustrates seven things to determine if a product is reasonably safe. Risk-utility is the majority rule to design defects.
 McDonald’s Coffee – P injured when spilled hot coffee all over herself in car. Showed design defect because coffee was
purposely extraordinarily hot. D was aware of this risk, but continued with the design. Here you must show the risk-utility test.
Was the risk worth the utility of more desired coffee.
39. Product Liability – Causation
39.1. Rule
 With product liability we have to use actual and proximate cause.
 Section 15 of the restatement third – prevailing rules of causation in negligence apply to products liability. What does that mean?
“But for” actual cause and foreseeability proximate cause.
 Superseding Intervening causes are still looked at.
 With direct result we look at WHEN where as foreseeability we look at HOW.
39.2. Related Cases
 Union Pump – Employee sues parts used by employer. Producing Cause here is direct result according to Texas. That means in
strict liability they use direct result, and in negligence they use proximate cause meaning foreseeability. This is a weird way of
handling causation. Legal Causation is the umbrella term which includes causation in fact and producing cause for strict liability.
Substantial factor is the “but for” causation – actual cause. Court determined her actions were too remote from the accident.
Union Pump (Texas)
Negligence
Restatement 3d
Legal Cause
Proximate Cause
Special Note p. 8
1. Causation in Fact: Substantial
1. Causation in Fact: Substantial 1. Factual Cause: But for
Factor + but for
Factor (Texas); but for (Dillon,
Section 26
Ford, Lyons).
2. Producing Cause: contributing
2. Proximate Cause:
2. Scope of Liability:
which in a natural sequence produced injuries
Foreseeability (Marshall, Watson) Foreseeability Section 26
(direct result)
40. Products Liability – Defense: Comparative Responsibility
40.1. Rule
 Abnormally Dangerous Activities
o R2d: Section 523-24, p. 433
o Contributory Neg not a defense, but P’s voluntary and unreasonable encounter of a known danger is. (not should know)
 Products Liability
o R2d Section 402A comment n p. 473: Contributory Negligence not a defense but P’s conduct which consists in
voluntarily and unreasonably proceeding to encounter a known danger is.
o R3d Section 17: P’s conduct may reduce P’s recovery if P’s conduct fails to conform to generally applicable rules
establishing appropriate standards of care.
o R3d Apportionment of Liability Section 8 p. 479
40.2. Notes – The conduct to look at is did P knowingly and voluntarily encounter a danger.
40.3. Related Cases
 Murray – P injured installing device. 2 rules – 1) there is no duty on P to discover defect. If he is aware of the defect, it is taken
into account. 2) Then must look at P’s actions as a whole. Were his actions unreasonable independent of the defect?
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