All about Torts: The famous Bachrach outline, finally put on disk
Some guy’s additions in Arial Narrow.
My additions in Calisto MT (Fall 2001)
CHAPTER 1: DEVELOPMENT OF LIABILITY BASED UPON FAULT
I.
Brief History of Torts
A. History helps us figure out the purpose and use of tort law. This is why we are looking at old cases.
1. Torts is a product of history. Some decisions happen only because of history, and it sometimes
predominates over logic (but you already know this from Criminal Law).
2. Prior to 1066: judgment now, proof later. X will win if he proves his case by oaths and ordeals (witch
trials). Oaths meant a lot because of “divine intervention.”
B. Predecessor of jury was cumpergator—group of twelve individuals who swore they knew the
litigant was telling the truth
1. Proof was to be decided by ideal: hot water, cold water, iron, morsel
2. Earliest legal claims resulted from clan feuds
a. Initially killed members of other clans for compensation
b. Later, if claim was made against an unintentional action, then compensation was by barter,
not death
3. A Legal Fiction developed that the king of the area was also injured when something happened
in his realm, thus payment was to be made to the king also.
4. King got more active in cases for fun and profit, fining for trespass and trespass on the case.
a. Eventually, criminal portion made its own system, and the “legal fiction” became the tort system.
Punitive damages are a carry over.
B. Torts
1. Used to be combined in civil and criminal actions
a. Payment to the injured party, AND
b. Payment to the governing authority (usually the king) payment was called a writ
2. To bring an action, one needed a writ from the king
3. Ultimately, the king was having to issue more and more writs and was forced to limit the
types of writs granted to:
a. Distinction between trespass and trespass on the case: a log falls on a road, if it hits P
then it is trespass; if P stumbles on it on the road later, this was trespass on the case.
Trespass
Trespass on the Case
1. grew out of crime
1. grew out of modification of existing writs
2. direct and immediate application of force
2. NOT direct and immediate application of
force
3. no proof of damage needed
3. had to prove damages
4. liability in absence of fault
4. fault was an essential element
5. courts were not likely to change rules
5. courts likely to change rules because there
was less history involved
6. Four main trespass claims were battery,
6. Negligence and Defamation, etc.
assault, false imprisonment, and trespass to
INTENT IS NOT AN ISSUE HERE
land, I.E. INTENTIONAL TORTS
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C. What is a tort and what do they do?
1. Definition—Civil wrong other than breach of contract, for which the law provides a remedy. Most crimes
are also torts. Even if a defendant is not guilty of a crime, (s)he can still be liable in tort (e.g., O.J.
Simpson)
2. Purpose of torts
a. Peaceful means of adjusting the rights of the parties (no retribution)
b. Deter wrongful conduct
c. Reduce accidents
d. Define new rights/duties
e. Encourage socially responsible behavior (establish standards)
f. To restore injured parties to their original condition, in so far as the law can do this, by
compensating them for their injury (Is this the same as ‘a’? You decide.)
D. Cases to “break us gently” to torts and their nature
1. 1842 Winterbottom v. Wright. Parties within a contract are liable only to each other, except in cases
where there is a “public nuisance.”
2. Thomas v. Winchester. Allowed parties in contract to be liable to those outside of contract through
several means:
a. Harm is NATURAL AND INEVITABLE CONSEQUENCE
b. Criminal acts
c. Negligence
d. “Imminently Dangerous” act.
e. Strict Liability
3. Loop v. Litchfield. Distinguished from Thomas due to inevitability of harm/ danger of instrument (i.e.,
belladonna is poison, always dangerous)
4. Losee v. Clute. Boiler case. No liability, not dangerous instrumentality.
5. Devlin v. Smith. Scaffolding case with an independent contractor. With Loop v. Litchfield—
dangerous instrumentality
6. Coughtry v. Globe Woolen Co. Finally, a break from case history. Improper construction of scaffolding
killed worker, company that built scaffolding liable. Globe had duty to foreseeable construction workers
on scaffolding.
7. McPherson v. Buick. Buick has duty to foreseeable users of automobile.
Who Will Pay?
D OK
D Neg
P OK
P Pays
D Pays
P Neg
P Pays
P Pays
II. Original Torts
1. Originally, liability was strict liability without regard to intent or negligence
a. It reduced violence at the time and increased the need to be more careful.
b. Weaver v. Ward—accidental discharge of musket during skirmish – in a trespass case,
there was no need for intent, at the time, if you committed the act, you were liable
regardless of intent – should have plead “complete and utterly without fault.”
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c. 1850 Brown v. Kendall – accidental blow with stick while trying to separate dogs–
BASIS OF MODERN TORT LAW (Fault is basis for liability)
A. No liability without wrongful intent or negligence
B.
Court distinguished between:
1. Necessary Acts – must use ordinary care, P has burden of proof
2. Permissive Acts – Extraordinary care, D has burden of proof.
d. 1933 Cohen v. Petty – man suddenly ill while driving, wrecks – not negligent so no
liability for unforeseeable event
e. 1969 Spano v. Perini – damaged property from nearby blasting – previously, P needed to
show negligence unless there was a physical invasion. Now, strict liability for
“abnormally dangerous activities.”
f. Initially strict liability was imposed, then near strict liability, then liability with
negligence, and now movement is toward strict liability
III. A brief blurb re: tort reform
1. What should people get money for?
2. Should award be limited?
3. Collateral Source Rule – subrogation question
4. Joint and Several Liability – drunk driver exception
5. English system – user pays expenses v. American system – both parties pay
6. Contingency fee
IV. Real world Considerations:
1. Accidents happen – there is often some fault on both sides
2. Insurance
3. Transaction costs – does your lawyer get half your money (of course not)
4. Access to Court system
5. Litigious – should everything go to court?
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CHAPTER 2 – INTENTIONAL INTERFERENCES WITH PERSON OR PROPERTY
GENERALLY:
1. Fault not important
2. Physical Damage not important
3. Rules are rigid from history
I. INTENT
A. To be Subject to Liability for an Intentional Tort, there must be:
1. A Voluntary Act – Immediate external qualification (last act done; ex: shooting a gun 
immediate manifestation is pulling the trigger), AND
2. Act with Specific Intent—Purpose OR Substantially certain knowledge
a. Purpose—the desire to cause the consequences of an act (this is not the same as
motive—not emotional), OR
b. Substantially Certain Knowledge – knowledge that the event will occur. Ask the
what’s in the actor’s mind (not a reasonable standard)
1. This is a Subjective Test (i.e., what was in the actor’s mind NOT is a reasonably
prudent person’s mind)
a. Garret v. Dailey – boy pulls out chair from old lady – if boy actually had
substantially certain knowledge (SCK) that the action would result in an
offensive bodily contact (fall), then he had the intent. Intent to injure is not
necessary, only need to do act with purpose or with SCK that results will
occur.
b. Spivey v. Battaglia – unsolicited hug paralyzes girl – court holds that it is not
an assault or battery because he had no purpose or SCK however as we
analyzed in class it was an assault because there was purpose (to give a UBC
– the hug because she was shy), thus there was intent. The contact must be
intentional but the consequences don’t have to be intentional,
substantially certain or even foreseeable.
c. Tort of Battery – a volitional act with the intent (purpose or SCK) to cause a harmful
or unsanctioned bodily contact and such contact in fact occurs.
1. Unsanctioned can be unpermitted, offensive, or not in accordance with customs
d. What is SCK?
Negligence (not reasonable care)  Shooting at a target without looking
Gross Negligence (super careless)  Shoot at a target with someone near but no
intent to hit them
Reckless (total disregard)  Shooting an arrow into the crowd
SCK  Shooting an arrow while aiming at someone
B. MISTAKE IS NOT A VALID DEFENSE FOR AN INTENTIONAL TORT
1. Accident – you do not have the intent to cause the physical consequences of the act.
2. Mistake – actor does an act with the intent to cause the consequence but does so under an
incorrect belief that there is a legal justification for him to do it (i.e., consent or privilege) or
something else goes wrong.
3. Mistake v. Accident Hypo
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a. Accident – you thought the gun was not loaded, you pulled the trigger and shot
someone; you are not subject to liability because no purpose or SCK.
b. Mistake – you went to arrest someone and you arrested the wrong person; you are
subject to liability for false imprisonment.
c. Woman pinches man on ass believing it to be her husband. OOPS! She is still
liable for battery
4. ACCIDENT IS A DEFENSE TO AN INTENTIONAL TORT, BUT MISTAKE IS NOT A
DEFENSE
a. Ranson v. Kitner. D. believes he is shooting a wolf and shoots P’s dog—even if it
was a reasonable mistake, it is not a defense.
C. INSANITY – does not invalidate intent
1. If an insane person is capable of entertaining the intent of a normal person and in fact
entertains the intent, he is liable for all torts that he may commit, except those torts that
require a specific intent (i.e. malicious). This is a general rule because it would be too
difficult to figure out levels of insanity of liability.
a. McGuire v. Almay. Insane person hit someone – court said she entertained intent to
strike – courts don’t want to have to deal with determining mental capacity, so they
put responsibility on care providers.
b. Regan v. Hinkley: he was let off criminally because he was insane but could be
held liable in tort because he intended the HBC
D. TRANSFERRED INTENT
1. From person to person – A throws a stick at B and hits C (liable)
2. From tort to tort – A threw a stick to scare B and hit B (liable)
a. A threw a stick to scare B and hit C (liability because intent transferred from tort to
tort and person to person.)
b. Talmage – D throws stick to hit A and hits B – transferred intent; there was also a
privilege issue here; D was not liable if he was using reasonable force to defend his
property from tresspassers. Remember you can be subject to liability but not be held
liable if you have a defense.
3. Doctrine of Transferred intent only applies to original 5 torts: (1) battery, (2) assault, (3) false
imprisonment, (4) trespass to land, (5) trespass to chattels – DOES NOT APPLY to
intentional infliction of severe emotional distress
4. Can be both to person to person and tort to tort in the same case.
5. HYPOS:
a. Druggist gives mother placebo instead of birth control pills and unknown to the
motion or the druggist, daughter takes the pills too, and both get pregnant – Doctor is
liable to both. (Daughter due to transfer intent)
b. Boy is walking down a road and a man throws a stick at him and hits him. Is the
man subject to liability for an intentional tort if…
i. He intends to hit his arm and his eye “by accident”? Yes.
ii. He intends only to hit the boy’s boot? Yes still a UBC
iii. He threw the stick b/c of a twitch? No. The act is not voluntary
iv. He wanted to show the boy how to throw the stick and hits him in the
eye? No he had not intent (purpose or SCK)
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II. BATTERY
A. Elements
1. Voluntary act,
2. With the intent to cause a harmful or offensive (unsolicited) bodily contact, AND
3. Bodily contact occurs (It is not necessary to intend harm to do injury, only to intend to
make contact)
B. Court begins to analyze cases in terms of interests
1. Interest – any human desire (some interests are protected & some are not) Examples:
a. To be free from harmful bodily contacts
b. To be free from offensive bodily contacts
c. To be free from emotional distress
d. To be popular
e. To run around naked
f. To kill, rape, pillage, etc.
2. Right – legally protected interest (interest to be free from murder)
3. Injury – invasion of any legally protected interest
4. Harm – any loss or detriment in fact (bodily harm = physical impairment)
a. Harm without injury – making gestures at someone
b. Injury without harm – trespass without damage to property
C. Battery protects two interests
1. Freedom from harmful bodily contact (protection from intentional invasions)
a. Intentional invasion protected under battery
b. Negligent invasion protected under negligence
c. Non negligent non intentional invasion (sometimes, i.e. blasting; strict liability)
2. Freedom from offensive/ unsanctioned bodily contact (offends reasonable sense of personal
dignity – does not look at specific person affected)
a. Unsanctioned – contact that is unwarranted at time and place of contact. Examples:
i. Glove in the face
ii. Spit in the face
iii. Spit on clothing
b. Do NOT have to show damages
c. Does NOT necessarily have to be physically harmful
d. Must be intentional – NOT protected in negligence
i. Motive is irrelevant; even if you have good intention
3. Definition of unsanctioned bodily contact: Offends a reasonable sense of dignity – not
one who is unduly sensitive. It must be a contact that is socially unacceptable at the time
and place that it occurs.
4. Person does NOT have to be aware of being battered (A kisses B while B is sleeping – A is
liable, except in “Sleeping Beauty” case, where it is first aid.) True for UBC and HBC.
5. Unforseen Consequences: Once the D has intended a tort, he is liable for any
consequences that ensue (i.e. intends assault but battery occurs, held liable for damages
of battery)
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6. Cole v. Turner (1704) – unintentional/ socially acceptable contact is NOT battery. The Black
Letter Law is still basically the same back then as it is now. The least touching of
another in anger is battery but if the touching is gentle without violence or design, it is
not battery.
7. Fisher v. Carousel (1967) – employee takes away black man’s plate – extension of the body –
a battery may be committed even though there is no physical contact with the person’s body
so long as there is contact with something which is attached to or customarily regarded as
part of the person. (Intentional Infliction of Severe Emotional Distress was not yet Tort.)
8. Insults are not generally considered to be battery.
D. Balancing Interests: Something Banzhaf harps on
1. Balancing interest of right to smoke/to be free of smoke; Radiation, Pollution, etc.
2. Balancing Right to be free from battery/give your co-worker a hug
E. Torts Represents:
1. Doctrinal Law—formal/inflexible – small number of rules applied to cases
2. Legal realism – pragmatism – doctrinal law is limited in some areas, thus, use what seems
fair – more flexible and individualized
F. Views on Battery
1. Restatement – “an actor is subject to another for battery if (1) he acts intending to cause a
harmful or offensive contact with the person of another or if (2) a harmful or offensive
contact directly or indirectly results.” Ambiguous.
2. Restatement appears vague, the following are interpretations:
a. Keaton – act must intend to do act with the intent to cause a bodily contact and must
intend contact to be harmful or offensive
i. Problem is with the “inconsiderate clod”. He gets away with his stupidity.
ii. People are hurt but no intent  no recovery
b. Prosser – an actor must intend to cause a bodily contact (that is unsanctioned by
society) which is fact turns out to be harmful or offensive, but he needed not have
had the specific intent that it be harmful or offensive.
i. Problems: (1) people not at fault are held liable and (2) what touchings are
permitted in a particular social setting?
c. Under either formulation, a person is not liable in battery if her causes a bodily
contact which is normally permitted by social usages, but which turns out to be in
fact harmful
3. Roberto v. Robert (handout) – Foreigner commits a battery completely unaware that the
conduct is considered unsanctioned. Intent not only to cause the act but the intent to
cause the injury.
a. Keaton: Roberto is not subject to liability b/c he did not intend harm – allows
reasonable good faith argument
b. Prosser: Roberto is subject to liability b/c he did the act which turned out to be
harmful.
4. HYPO: A pinches a number of women hoping some won’t think it’s offensive.
a. A is subject to liability because he did an act with SCK that it was an unsanctioned
bodily contact.
III. ASSAULT – MENTAL INTEREST IS PROTECTED
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A. Elements
1. Volitional Act
2. With intent (purpose or SCK) to cause the apprehension of an IMMEDIATE harmful or
offensive bodily contact (i.e., apprehension of immediate battery), AND
3. Such apprehension occurs (this is an abnormality in tort law b/c it is designed to protect
an interest which is mental).
B. Requirements
1. P Must be aware of the threat (must have apprehension)
2. Apprehension is NOT fear, being scared, etc.
3. Must appear to P that contact is imminent – future threats are NOT assault
a. Immediate means there is no other course available to the P, if there is no other
alternative it is immediate, if there is, it is not immediate
4. D must have the apparent ability to carry out the threatened conduct
a. Western Union – assault by clock fixer – D need not have actual ability to carry out
threat as long as P believes D can carry it out. This case held that every battery has
an assault. This is not true. (i.e. I shoot you in the back of your head)
C. Note that Intent is solely mental and narrowly defined. Interest is in being free of a harmful and
imminent bodily contact. It protects against only intentional invasions.
D. Words alone cannot constitute assault but they can create an apprehension in an ordinary
activity (i.e. reaching into a pocket and saying “I’ve got a gun”)
E. I De S Et Ux v. W de S (1348) – D drives axe into door next to P’s head – held that although
no harm was done, an assault was intended and punitive damages were rewarded.
F. Examples of Threats
1. “Look, a spider (six feet away)”  NOT assault; maybe assault if very close
2. Making a rattlesnake noise with intent to cause apprehension  Assault
3. Throw a knife at someone and they don’t see it and it misses them and then someone tells
them about it  NOT assault
4. “If you weren’t in my class I’d punch you  No apprehension, No assault
5. Same situation but they know you have another knife and fear that you will throw that
one too  Assault
6. “I’ll kill you after class”  future threat, NO assault
7. Cannot condition a situation on something you are not legally obligated to do – “if you
weren’t going to give me your wallet, I’d shoot you”  Assault
8. “Get out of my house or I’ll throw you out”  subject to liability but may not be liable
because of privilege
9. “I am a great knife thrower and I promise I won’t hit you”  assault b/c still have SCK
that you will have the requisite apprehension.
IV. FALSE IMPRISONMENT
A. Basics
1. Grows out of trespass
2. Doesn’t require actual damages
3. Transferred intent applies
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4. Defined as the direct restraint of one person of the physical liberty of another without
adequate justification. Elements:
a. Volitional Act (spasms/seizures, etc. are not volitional),
b. Intent that it would cause the P to be confined within certain fixed boundaries by
certain improper/unauthorized means, AND
c. Result occurs (i.e., person is confined by improper/unauthorized means)
i. P must either be aware of the confinement or he must be harmed by it
(remembering isn’t necessary).
ii. At common law, the interest being protected was more like assault in that
it was a mental interest and awareness was necessary. Now it is enough
if harm results.
iii. Keeping someone OUT is not confining, and (therefore) not
imprisonment.
5. If there is a means of escape but P doesn’t know about it, it is still false imprisonment.
B. Improper Means
1. Direct application of physical force
2. Creation of real or apparent physical barriers
3. Other situations which impede escape:
a. Dangerous/damaging/distasteful/embarrassing/unreasonable
4. Express or implied threat (“don’t you dare move or else”) of immediate physical force
5. Express (“you are under arrest, don’t move”) or implied (“don’t move, you need to fill
something out”) assertion of apparent LEGAL authority
6. Omission to act when a duty to act is present
7. Big Town Nursing—false imprisonment by direct restrain without justification
NOTE:
If the only means of escape would cause physical harm and the P could remain
imprisoned without any risk of harm, he may not recover for injuries suffered in making
the escape
C. NOT improper means – These do not constitute false imprisonment
1. Social or moral pressure (i.e., if A stays so he doesn’t hurt B’s feelings)
2. Reliance upon duties
a. As an employee
b. As a student – “I will flunk you if you leave.”
c. As a guest or passenger
d. As a customer/shopper
3. Threat of future force – “I will punch you after class if you leave.”
4. Threat of future legal consequence – “I will take you to the dean if you leave.”
5. Fear of losing job or failing class (same as a and b)
D. Person must be aware of confinement at time of confinement or must be harmed by it
1. Parvi—drunk dropped off at abandoned golf course – present recollection of confinement is
not necessary if elements can be satisfied by evidence
2. HYPO: student goes to deserted cabin to study and classmates lock him in but he is not aware
that he is locked in, then a person comes to ask him a $1 million question that he knows the
answer to but leaves because the cabin is all boarded up.
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a. False imprisonment because student was harmed
3. Hardy – Employee takes polygraph test because of alleged theft – Not improper means
because it was an appeal to honesty (she could have left but she wanted to defend herself)
Note: In a case of shoplifting, even when detention is involuntary, there may be a
privilege.
a. Why don’t we allow false imprisonment when employer threatens to fire?
i. Limited/older tort that courts are reluctant to expand
ii. Law can’t protect against everything in everyday life
iii. Cases may turn on minute distinctions of who has authority
iv. Alternative ways to deal with these abuses (i.e., contract relations)
E. Assertion of Apparent Legal Authority
1. False arrest by person who claims to have legal authority but doesn’t and P believes the
authority exists and stays against his will
2. It is NOT false imprisonment if the person has a valid warrant or probable cause or if you are
convicted for the crime arrested for.
3. Enright—arrested lady for not showing driver’s license. False Imprisonment because cop did
not have authority to arrest her for this reason. If you are arrested on invalid grounds it is
FI even if you are guilty of a different crime. Note: Need not be law enforcement officer
making the arrest.
4. Private citizen who aids the person asserting legal authority may be liable if he taken an
active role
F. Omission to Act When A Duty To Act Is Present
1. Duty – legally enforceable obligation to act or refrain from acting
a. Wherever there is a right on someone there is a duty on someone else
b. Can be affirmative or negative.
c. Duties (where you can be subject to liability) can arise from:
i. Operation of law
ii. Cause of relationship
iii. Custom
iv. Privilege
v. To release
vi. Agent of Operator (i.e. bus driver hears you locked in the bathroom but
fails to unlock the door)
vii. Promise and Breach (Whittaker)
d. LIMITS of duty
i. Customs and understanding
ii. Agreement
e. Problem with duty is that they are vague
f. There is no liability if there is no duty
NOTE:
False imprisonment is the only intentional tort in which an omission to act is
sufficient to constitute the “act” element of the tort
 Thus, if you let a blind man walk off a cliff, you may e liable for negligence, but
not for an intentional tort.
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2. Whitaker—refusal to release cult member from boat – denial of a personal right by not
lending boat when there was no other means to leave was a wrongful denial.
3. HYPOS resulting in liability
a. If jailer does not let prisoner go when it is time (legal right to leave)
b. Man climbs on roof because neighbor says he will bring ladder back and doesn’t.
c. Rock climber gets stuck and his partner does not help him  liability based on duty
within custom and practice
d. A makes it dangerous for B to get out of the car when B wants to.
e. If there is a secret exit, there a duty to tell.
f. If car crashes due to no negligence of D, is D liable to P? Yes, b/c of FI, then he is
liable for all consequences following his actions.
4. HYPOS not resulting in liability
a. Terrorists are coming and Prof looks the classroom door. Not FI b/c there is a
privilege to protect us.
b. Woman’s handbag is stolen and she gets into car with crook to get it back.
Maybe FI if needs the $ to get home.
V. INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS
A. Elements
1. Subjective: An act with the intent to cause SEVERE emotional distress to another. (INTENT
can be proved by RECKLESSNESS.)
2. Objective: Conduct must be SHOCKING AND OUTRAGEOUS in character beyond all
bounds tolerated by society (reasonable person standard), AND
3. Conduct must cause SEVERE emotional distress (take into account the sensitivity of the
person)
B. Examples
1. Threats of serious bodily harm
a. 1959 State Rubbish Collectors Ass’n v. Siliznoff. Mafia-like garbage collectors’
union makes scary threats to Siliznoff because he collected someone else’s garbage.
Not assault b/c no apprehension of immediate harm. Not FI b/c threat was not
immediate. Siliznoff wins on this brand-new tort.
2. Threats to property
a. These may be future threats
3. False statements about damages to another
4. Misleading statements of legal action/consequences
5. “Hate crimes” type threats
C. What is Shocking and Outrageous?  objectively measured
1. Abuse of relationship of trust and power (school scenarios)
a. See page 59—person in authoritative position abusing trust (school authorities,
collection agencies, insurance adjusters), using position to obtain advantage.
2. P has particularly susceptibility and D is aware of it
a. Allowances for pregnant women, children, mentally incompetent (pot of gold)
b. Factors to look at: closeness of relationship, witnessing, outrageousness of act
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3. If conduct is repeated or sustained over a period of time (stutter, phobias)
a. 1977 Harris v. Jones. P Harris is GM employee who was regularly harassed by his
coworkers because they thought he was a loser (he has a stuttering problem). We
can’t consider these cases in a “sterile setting.” Guy was in a factory, and judge
apparently thinks factory workers are more prone to behave badly.
4. There must be a causal connection between the conduct and the emotional distress.
5. Court may take into account the sensitivity of the D especially if D knows about it.
a. Pot of Gold case: P an eccentric old woman, believed that a pot of gold was
buried in her yard and she constantly dug for it. D buried a pot and when she
dug it up, he insistd that she open it in front of whole town. Held that P has a
special sensitivity and D has knowledge before hand.
6. Act for improper purpose or to gain an improper advantage
a. Insults/slurs/Solicitations/Vulgarities do not qualify (Most courts will require a
“thick skin” in our society)
i. COMMON CARRIER RULE—common carriers, and innkeepers, have
higher standard of care and are generally liable when employee uses highly
insulting language to customer (also liability is generally found when there is
a dead body involved)
1. Slocum v. Food Fair Stores of Florida: YOU STINK TO ME case.
I’m sure we all remember it fondly. Court ruled that language was
not severe enough to cause heart attack, decided that grocery store
was not held to as high of a standard as a “common carrier” like a
train or plane. (Said common carrier standard is outdated, but we
really don’t believe that.)
b. REMEMBER: “There’s no harm in asking!”
7. Mental suffering is sufficient – there does not need to be physical injury
8. Must look at aggravating circumstances
D. Early Steps Leading to this tort
1. Parasitic damages – once elements of an existing tort were established, one could assert a
claim for emotional distress
2. Physical harm – if physical harm resulted from emotional distress, there was liability
3. Freedom from severe emotional distress is an interest worth protecting in some instances –
now P doesn’t necessarily need physical harm evidence
a. Argument against this tort is that it would open up floodgate of suits (isn’t this same
reason court didn’t see liability in Winterbottom v. Wright?)
b. Prosser said that it is responsibility of law to protect certain interests regardless of
what it would cause.
E. Transferred Intent For Intentional Infliction Of Severe Emotional Distress
1. Generally, not applicable because liability would spread too far
2. Factors for an exception
a. Was Family member present?
b. D knew of P’s existence/relationship/presence
c. Closeness of relationship to the victim
d. Outrageousness of the act committed
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i. 1959 Taylor – D was not aware that girl was watching him beat her father,
therefore there could be no liability to her for emotional distress
F. Intent can be found in recklessness
1. HYPO: man commits suicide in someone’s kitchen (he won’t be invited back!)
a. Reckless disregard for the consequences of your action can be sufficient to show
intent for infliction of severe emotional distress
G. How to create a new tort.
1. Notice that people are suing for other things under guises
2. Accept these guises on a regular basis—LEGAL FICTION
3. A few breakthrough cases allow for new tort and write persuasively.
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VI. Trespass to Land
A. Elements
1. Act with intent to cause something to enter another’s land (D need not be the thing that goes
on the land)
2. Transferred intent does not apply.
B. Generally
1. Originally required a direct and immediate application of force
2. Now, interest protected is exclusive possession of land against physical invasion
3. Person in possession (either actual or constructive) is the only person who can sue (not
necessarily the owner). If you are leasing an apartment, you are in active possession.
a. Even a trespasser can bring an action IF HE WAS IN POSSESSION OF THE LAND
4. Mistake is not a defense even if it is a reasonable belief. Reasons are importance of land,
title and prescriptive right.
5. No damage has to be shown (Dougherty)
a. the person in possession of the land may even benefit
C. Why are the rules so strict?
1. Tremendous importance of right to possess land (from feudal times)
2. Sometimes used to determine ownership of land. Very clear tort, as opposed to “Nature Of Quiet
Possession,” which is less dramatic.
3. Necessary to prevent trespasser from acquiring a right to land (adverse possession). This is
why in New York, the streets around Times Square are barricaded on New Year’s Eve.
D. Invasions
1. Indirect Invasion—violation of airspace by a tangible object is a trespass to land (Herrin – D
shot gun over P’s land – liable; no harm/damage needs to be shown)
a. Under common law, land went from the middle of the earth up to the heavens.
2. Particulate Matter – must show actual damages (Bradley—P must how actual damage from
smelter. This changed rules for trespass. Particles and sound waves don’t count.)
a. 4 Elements necessary
i.
Invasion of exclusive possession
ii.
Intent
iii.
Reasonable forseeability
iv.
Substantial damages: this is unusual for trespass
b. Doctrinal Analysis v. Law and Economics Movement.
i.
Law and economics: everything had a $ value. Coase theory analyzed Bradley v.
American Smelting in terms of efficiency and equity. Coase looks for balance (what
people will pay for). This case establishes trespass which is nonphysical.
 Efficiency: best use of resources
 Equity: distribution of resources
c. Problems:
A. Consumers may not always act rationally
B. Dealing with the “holdout” “free ride” homeowner
C. If smelter had a duty, homeowner has a right which may include the
right to injunction which means that they can go out of business
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D. If smelter is liable, more homeowners could move into the area and put
the smelter out of business
E. Coase Theory addresses economic efficiency, but not economic
equality, or equity or fairness.
E. Theories related to Airspace
Trespass to Land
Nuisance
1. Protects interest in possession of land
1. Protects interest in use and enjoyment of land
2. Must be intentional
2. Intentional or Negligent
3. Damage not needed
3. Requires actual damage
4. Does not deal with reasonableness
4. Deals with Reasonableness (weighing and
balancing)
5. Balances D’s interest against social utility
F. Types of actions to bring by landowner involving airspace
4. Airspace—exclusive possession does not extend beyond the immediate reaches of the land –
any space above that necessary to use in connection with the land is public domain and is
navigable airspace (usually airports win in these cases)
5. Action in trespass to land:
a. Plane must go directly over the land but government can use the navigable airspace
or glide paths (difficulty in proving where planes are so it is not a practical legal
remedy)
b. Plane must be below navigable airspace
c. Problems of Proof
d. Prescriptive right to nuisance: who was there first?
6. Nuisance: public v. private
a. Public & Private Nuisance can be concurrently used
b. P & P can be statutory, intentional, or unintentional
c. Very clear action
d. Public: protects physical use of land
e. Private: protects possessors from “unreasonable disturbances”. Action in nuisance:
i.
Plane does not have to go directly over the land but the P must show
damages
ii.
Involves a balancing of landowner and Ds use (airport = high utility)
iii.
Prescriptive right – a person who does something wrong on their land before
it is inhabited is not allowed to do everything once people move there.
7. Inverse Condemnation – if the government takes your land they must give you reasonable
compensation for it. The “inverse” is that the government first devalues your land (say, by building a
highway nearby), then takes it.
8. Strict liability
9. National Environmental Policy Act
10. State and Local Laws
G. Failure to Remove an Object Placed on the land pursuant to license is considered trespass when:
1. Consent has been terminated (must give reasonable time to leave)
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Note:
Note:
VII.
2. Failure to remove it after privilege has been terminated (expiration)
a. Privilege can be given and revoked at any time.
b. Rogers – government left post in farmers yard which killed him
3. Breach of a legal duty creates the tort (i.e. omission of the act)
4. D must also be aware that consent has been terminated.
Once the trespass is committed, D is liable for all consequences regardless of forseeability
There is no proximate cause requirement with regard to intentional torts
TRESPASS TO CHATTELS
A. Elements
1. Act with intent to interfere with use or enjoyment of another’s chattel. (Chattel is property that
is not land or buildings.)
2. Must be some sort of damage/harm
a. Impair condition
b. Deprived of use
c. Bodily harm to P, or harm to something which P has interest
B. General
1. Strict Liability: Mistake is not a defense
2. Can be Direct or Indirect
3. How is it different from trespass to land? P must show actual harm (i.e., something more than
intermeddling) or deprivation.
a. Actual Harm
i.
Damage to chattel itself
ii.
Possessor is deprived of use of chattel for a substantial time
iii.
Harm occurred to possessor due to interference with the chattel
b. Glidden—no trespass to chattels because dog was not harmed.
i. With regard to domesticated animals, you aren’t liable unless negligence
c. CompuServe—sneaking ads onto online server company is intermeddling. It is intentional
and causes a problem to P.
4. HYPO: A parks car and goes for a 4 hour hike. B steals the car but intends to bring it back
within 4 hours. A is attacked by a bear and can’t use the car to get to the hospital and dies.
a. This is trespass to chattel because B deprived A of the use of his chattel and harm
occurred (B does not have to intend harm, just must intend to interfere with use).
VIII. CONVERSION
A. General
1.
Applies to chattel as well.
2.
More serious interference than trespass to chattel
3.
Applies to a serious type of taking where it is more equitable to require D to take title to
the item and pay its value than to actually return the item (i.e., if D ruins the item taken)
I.
Forced Sale – you are now the owner; If D takes P’s car and wrecks it, P is
entitled to the value of the car at the time D took it. As if P is buying the car
before damage.
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CHAPTER 3 – PRIVILEGES/DEFENSES
II. Introduction
A. Definition – although the tort has occurred (i.e., the D is subject to liability), because of some
benefit to society or to the individual, the action of the D outweighs the value of the
compensation to the P and we create a privilege.
1. Basically, a privilege is a defense to a lawsuit
2. Benefit to society as a whole: To arrest, to imprison, to execute
3. Benefit to an individual: Self defense and defense to property
4. Benefit to others: Defense of others
Note: consent is NOT a privilege because it completely invalidates the tort
B. Types of privileges
1 Absolute – No conditions/qualifications/limits
2 Conditional – certain conditions/qualifications/restrictions (i.e., ability of a cop to use force to
arrest in certain situations). Conditions attached: reasonable belief, good faith, reasonable
force (competing interests).
3 Limited—privilege to do something but you have to pay for it
C. Right v. Privilege
1 Right—a legally enforceable claim creating a corresponding duty and the breach of the duty
is the basis for the legal action (the SWORD). E.g. To have a contract performed, to be free
from intentional infliction of severe emotional distress.
2 Privilege—legal freedom of one person to do or not to do an act – there is no duty (the
SHIELD). E.g. To say defamatory things, to make an arrest, to cross land in an
emergency.
D. Two-Step Test
1 Was there a privilege?
2 Did the D act within the scope of that privilege?
II. Consent
A. Consent negates the existence of an intentional tort
1. Was the consent manifested? Actions or words/ some outward manifestations
2. Was the consent valid?
3. Was the D’s act within the scope of the consent?
4. Was consent invalidated (e.g. by mistake or duress)?
5. Effect of consent to an act which is illegal
6. Was the consent revoked and when was the revocation effective?
7. Was the consent informed?
B. Restatement
1. Old: To constitute the consent the assent is to the act and not the invasion of it
2. New: TO be affected, the consent must be to the particular conduct or the substantially the
same conduct. The effectiveness of the consent when revocation is told to the consenter it
terminated. In some situations, consent can be irrevocable or the revocation would be very
unfair to the person.
C. External Manifestations of Consent
1. Would a reasonable person in the D’s position believe that the P consented?
2. Types of External Manifestations
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a. Conduct – the general rule is that outward manifestations of consent are generally
controlling even if inward desires are to the contrary
i.
O’Brien. D vaccinated P because she put out her arm even though she
subjectively did not want a vaccine. There is battery but he may have a
defense of consent.
1. Nuances of O’Brien case:
a. Feminist legal studies
b. Critical legal studies – legal rules are often shams to cover up how we do
things for real
b. Silence/Inaction – Silence and inaction can manifest consent when a reasonable person
would be expected to speak up and negate consent (i.e., would a RPP believe that silence
indicated consent)
i.
A tells B he is going to punch him if he does not leave, B does not leave and A
punches him – Battery
ii.
A tells B in a romantic setting that he is going to kiss her. B does nothing and A
kisses her – B has consented, thus NO battery
iii.
Evidence of P’s subjective consent may indicate consent when conduct
indicates “no”. Liability will be prevented.
1. Problem with this: doesn’t seem fair to hold B liable when A subjectively
consents but policy argument – sexual offense, if one looks deep and far
enough, you might find some form of consent even if she said “no”.
2. Example: Nurse plays hard to get but her diary shows she wants it. No
liability.
c. Custom – unless expressly negated
3. Consent in Sports Activities
a. A person is deemed to have consented to contacts permitted by the rules of the game
AND customs of the game
i.
According to the restatement
1. Violation of the playing rule (If you act within the rules of the game)– no
liability
2. Violation of a rule that protects players --- liability
3. If you see violence is uncustomary but keep playing, Banzhaf thinks you
have consented. But Restatement says that look only at rule of the sport
when you enter a game; you agree only to those actions.
ii.
Hackbert – violation of rule that protects players – liability
iii.
It is complicated b/c there are many competing interests
1. Protecting players from getting hurt
2. Protecting players from getting sued
3. Interest in protecting the game itself
b. A person is NOT deemed to have consented to actions beyond the bounds expected in a
game – no consent means D will be liable
4. Conduct within the scope of consent
a. Can always revoke prior to act except…
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b. A person CANNOT revoke consent where there is a contract or where it would be unfair
or inequitable to allow revocation
c. Note: at some point society will not tolerate conduct and will not allow consent
d. Consent is to conduct or Substantially Similar Conduct (consent is to the conduct, not the
consequence – result irrelevant within scope)
5. HYPOS:
a. Co-ed basketball game, and the girl is getting grabbed, another takes her place, does
she consent?
b. A allows B to swing at him expecting that A can get out of the way.
1. If B actually hits A, there is no liability because B’s conduct was consented to
regardless of the result (if within scope)
b. Mutual Punching Game – A hits B and revokes consent for B to hit A
1. Cannot revoke because revocation would be unfair or inequitable
c. Mutual Punching Game – A does something unexpected (i.e., kicks B)
1. Liability because this conduct was not consented to nor was it conduct substantially
similar to conduct consented to.
d. A and B consent to a boxing match and A hits B with a glove containing a horseshoe but
the impact is the same as if A would have hit B without a horseshoe
1. A is liable because his conduct was not consented to – look to scope of the consent
NOT the particular result
9. Medicine and Consent
a. Mohr – Operated on the left ear instead of the right. A doctor is liable if he exceeds
consent by performing an act not expressly agreed upon by the patient (it is irrelevant
whether or not the patient benefited)
i. Important social interest: everyone should be able to figure out what they
want when it comes to their own body.
b. Exceptions
i. Unconscious patient in a life threatening situation: consent applied
ii. During operation, the doctor realizes the cause of the problem is different
than expected and it is life threatening: consent applied
iii. Doctor is able to fix that which is causing the infliction he was authorized to
fix (i.e., Doctor thinks A is causing pain and opens up the patient and finds
out it is B – he can fix it.)
1. If doctor sees something in the course of an operation, that he thinks
in his sound professional judgment should be taken care of, there is
consent.
1. May be an action in negligence if decision is NOT sound
iv. Medical consent form
v. Generally, you need consent of parents for procedures involving their
children.
1. However, if child is dying and the parents won’t allow medical
attention, the court may step in (even in irrational reasons: religion,
confidence…)
2. A child may be able to consent to some minor procedures as they get
older
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c. Today:
i. Even if an action in battery won’t lie may have an action in negligence if
doctor didn’t exercise good judgment
ii. Consent must be informed: i.e. even relatively small risks are required to
be disclosed by doctors
d. Problems:
i. Can you consent to quick and painless death? I.e. stop feeding mom.
ii. Can a pregnant dying woman consent to a caesarean what will save the
baby and kill her?
iii. What about parental consent to procedures on their children?
iv. Can parents refuse treatment for their dying child for religious reasons?
(Court will usually intervene)
10. Mistake as to consent
a. Consent gained through D’s misrepresentation is INVALID
b. To invalidate consent:
i. D must know about the mistake or cause the mistake that causes the outcome
(failure to disclose a material fact)
1. De May—De Mays allowed non-medical assistant to witness childbirth
because they thought he was medically trained
ii. Mistake must be of a certain type or character
1. Mistake must extend to the Essential Character (nature/harm) of the
act itself rather than some collateral act that makes it inducement
2. If consent does not have to do with act itself, it is not invalid
3. Consent is valid if it is by inducement
iii. Prosser and Keeton: About the nature and quality of the invasion; it must
go to the essential character of the act itself, that which makes it harmful or
offensive, rather than to some collateral matter which merely operates as
an inducement.
iv. Restatement of Torts 2nd §892B: A substantial mistake concerning the
nature of the invasion of his interests, or the extent of the harm to be expected
from it.
v. Epstein: The act consented to is different in kind from that which was
actually performed.
c. HYPOS:
i. Mock marriage so A has sex with B
1. This negates consent because it goes to essential character
2. If A promises to marry B, B has sex with A, and A does not marry B,
consent is valid because it is inducement
ii. Superman Demo – A punched steel instead of stomach
1. Consent is not valid because of mistake as to expected harm
iii. Professional arm wrestling hypo – he breaks the arm of an amateur. It is
battery – he did an act for the purpose of an UBC and one did occur but did
he consent if D knew he could break the arm but didn’t tell him?
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iv. A real doctor but medical procedure is not necessary – consent is not
valid
v. “magnetic healer” has patient take her cloths off so he can massage her
and treat here – no liability
vi. I accept a tide on a motorcycle and get bumped around – no liability
because it is reasonably expected
d. Sex is normally an UBC but consent validates it.
i. If sex is consented to because of fraud or mistake, consent is invalid when:
1. Must be substantial mistake concerning nature of the invasion or
expected harm
2. Mistake must be known or caused by D
ii. Examples: SEX – each intends an unsanctioned bodily contact but they rely
on consent by the other
1. A gives B V.D.  not a substantial mistake
2. A gives B AIDS  substantial mistake invalidating consent if A
knew the consent was mistaken or caused the mistake as to the harm
to be expected
1. Cannot use mistake as a defense if you are not married
iii. Lying about birth control  no action because court should not be involved
in intimate relationships
iv. REMEMBER: consent includes the reasonably expected risks of undertaking
the activity
11. Consent to Illegal Act
a. Two types of illegality:
i. Protect people from themselves
ii. Protect society
b. Majority – consent is NOT valid and is thus not a defense
i. You cannot legally consent to illegal activity.
ii. Recovery isn’t barred
iii. Defendant is liable
iv. Similar to criminal rule that consent to an act does not bar persecution.
c. Minority and Restatement—consent is valid thus no liability and no relief (it is a
defense)
i. Recovery is barred.
ii. Defendant is not liable.
1. One who consents has no basis to complain
2. No one should profit form his own wrongdoing
3. Civil courts should not add to criminal penalties
iii. Exception for conduct that was in violation of positive law (a law made to
protect a certain class of people – like statutory rape or hazing or a clear rule
of illegal sale of fireworks to children; unclear is anti-abortion law)
1. Hart – illegal prize fight and P gets injured – it is a defense for D
that P consented. Court refuses to adopt either rule but says no civil
liability.
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III. SELF-DEFENSE
A. Elements
1. Reasonable belief that it is necessary for you to defend yourself - you have no choice
(Objective)
a. Mistake is allowed if it is a reasonable one because the situation is not by choice, it
happens quickly, and involves great emotion/stress.
2. Must use reasonable force under all the facts and circumstances (Objective)
a. Reasonable force is NOT retaliation nor does it result from provocation by words or
threat of future harm
b. Under all the facts and circumstances takes into account age, size, strength, and
relevant prior experience
c. Deadly force—causes death or serious bodily harm—it can only be used to protect
yourself from deadly harm (still must be reasonable)
i.
Whenever using deadly force, it must be reasonable (can’t shoot a 7 year
old with a knife)
ii.
Problem: Reasonable belief often gives way to escalation
d. Once a battery is no longer threatened, the privilege terminates
3. Why do we have self-defense?
a. Higher law to be able to defend ourselves
b. Basic value of society
c. Reduces the need for government intervention
d. People will do it anyway
III. DEFENSE OF OTHERS
A. Elements—same as above (reasonable belief and reasonable force)
1. Restatement allows you to give the defense of mistake if it is a reasonable mistake.
2. Some courts say:
a. The person aiding steps into the shoes of the victim and has no greater privilege than
the person he is protecting
ii.
If the person being aided was being arrested, he had no privileges and the
person aiding therefore has no privilege to help and therefore may be taking a
risk that he will be subject to liability
iii.
Both sides can have reasonable mistake to each other.
3. Few court have a Make My Day Statute: If someone enters your home, you need not to
fear bodily harm to retaliate: automatically have privilege of deadly force.
B. History – first extended to servants, then family, then everyone
VI. DEFENSE OF PROPERTY
A. Elements—same as above (reasonable belief and reasonable force)
1. Obligation to warn: unless is vain, it would be useless, or no time
2. Deadly force: cannot use deadly force unless there are other related privileges such as being
confronted with deadly force
3. Reasonable Mistake—defeats privilege more than the latter two unless the trespasser
contributes to the mistake (there is no cut throat rule)
a. Mistake in trespasser’s status does defeat the privilege. I.e, You are renting out
an apartment and you think the person on the property doesn’t belong there but
22
he in return is the owner of the apartment. The privilege is defeated. Unless he
contributes to the mistake.
4. Mechanical devices in defense of property—owner can not do more indirectly than he could
do directly—thus, the owner may use only the same degree of force that would be necessary
to protect his property if he was present and acting himself (reasonable force)
a. Owner must provide clear notice of presence to mechanical device unless the danger
and presence is obvious and visible
b. Law disfavors mechanical devices because they may injury innocence and there is no
opportunity for human intervention
c. Katko—old man used shotgun trap to wound intruders – Liable
d. Value of life and limb outweigh value of property.
5. Limitations – may not be able to eject P from your property into a position of
unreasonable danger. I.e. throwing X out of house into snow if he is ill.
6. Make my day laws: Once someone has broken into your house, anything goes (rare)
VI. Recovery of Property
A. Elements
1. One must act immediately – “fresh pursuit”
2. Must make a request if possible
3. Reasonable force
a. Escalation may provide for use of force
B. Mistake
1. Common Law—any mistake negates privilege (i.e., if you forcibly stop someone and you are
wrong, you are liable); Interest protected is very low
2. Mistake of status will defeat privilege.
3. Shopholder’s Privilege—if a merchant has a reasonable belief (even if mistaken), he enjoys
the privilege to detain the individual for a reasonable investigation (temporarily/investigative
purposes only, NOT a right to arrest)
a. Problems with this exception:
i. How far beyond store does this privilege go? Mall? Parking lot?
ii. What if shoplifter resists the rent-a-cop?
iii. Does this privilege extend to services?
iv. How much can a rent-a-cop do/hold till police arrives?
b. Bonkowski v. Arlan’s Dept Store: Rent a cop stops woman on her way to parking
lot of department store and had her return and empty her bag which she believed
was stolen. Court held that this extends the right to detain to area immediately
surrounding the store.
4. Hodgeden—P fraudulently took stove from Ds; Ds went to get stove back immediately but P
draws a knife and becomes the aggressor. He had not right to property since it wasn’t really
his anyway. Ps resistance was such (escalation) that the Ds had to use force to get the stove
back—if they used no unnecessary force then they are not liable.
VII.
Necessity
A. Public Necessity—when there is a danger to the general public or a large group of people serious
enough to allow tortious activity to be lawful (necessary to prevent a greater harm)
1. This is a complete privilege which means there is no liability for damages
23
2. Policy Reasons:
a. Public need overrides private rights
b. Natural Higher Law
c. Fairness—action for general public good should not be bases for liability
4. Person acting is not liable if the act was:
a. In good faith—a subjective test
b. Apparent necessity—(objective test) Reasonable mistake does NOT defeat the
privilege (again, look at all surrounding circumstances)
1. Factors to determine reasonableness include: risk of occurrence, change of
the action being successful and presence of alternatives
5. Surrocco—D a public official blew up building to prevent the spread of a fire—done for the
public good; certain times individual rights give way to public necessity—D is NOT liable
for payment
6. Doctrine of public necessity applies to a private citizen – if there is a public official who
does not act, a private citizen may and will not have to pay for any damages (i.e.
Silkwood)
7. Restatement: If public officials take control, citizens can’t reasonable act unless official is
not competent.
8. Governmental Immunity – generally there is no rule that makes the government liable
for these situations.
9. Private Actor Under Public Necessity Re 2nd §196(e) - If the public authorities have taken
control of the situation, it would ordinary be unreasonable for a private individual to
attempt to exercise the privilege on his own initiative. It may happen, however, that, in
the absence of a public official competent to deal with the situation, or when the
appropriate official unreasonably refuses to act, action by a private individual to avert a
public disaster would be reasonable.
10. Policy Reasons: Public needs override private right, natural (higher) law, and fairness
(action for general public should not be a basis for liability)
B. Private Necessity—Danger is to a person or small group of overwhelming seriousness; has
privileges but is liable for damages.
1. Rule: a person is privileged to prevent injury to himself, his property, etc., by injuring the
property of another, if he acts in good faith (subjective) and out of apparent necessity
(objective—reasonable belief)
2. Ploof—P docked his boat on D’s land during a storm – D unmoored it and it crashed and now
D is liable (classic case of private necessity)
a. Theory 1: Privilege of necessity (during a storm) overrode and nullified the privilege
of the landowner to use reasonable force to evict a trespasser
b. Theory 2: Even if there was no doctrine of necessity, the landowner did not use
reasonable force given the circumstance (i.e. casting off in a storm) – even if the
state doesn’t recognize the doctrine of necessity.
c. Theory 3: Necessity created a legal right for P to use the land and a corresponding
legal duty on D to permit P to use it and D breached the duty
d. RE 2nd 197: The privilege stated in this section carries with it the subsidiary
privilege to use reasonable force to the person of the possessor of any third
person. Under this privilege, the actor is entitled to be on the land and therefore
24
the possessor of the land is under a duty to permit him to come and remain there
and hence is not privilege to resist entry.*
3. Vincent v. Lake Erie—D docked his boat during storm at P’s dock. Dock is damaged. D had private
necessity privilege to dock during the storm but now must pay damages to dock.
a. RE 2nd 197 Comment (regarding Vincent):
In general, where the entry is for the purpose of protecting a legally protected
interest of the actor or a third person, the privilege to enter is an incomplete
(limited) one, in that, although the possessor of the land is not privileged to resist
the entry, the actor is subject to liability for all harm to the possessor or to his
interest in the land which the actor may cause, whether intentionally, negligently, or
accidentally, while exercising his privilege.
4. This is a limited privilege and therefore a person invoking private necessity is liable for all
damages (actual damages NOT punitive)
e. Liable for all foreseeable and unforeseeable damages (intentional, negligent,
accidental, act of god)
5. Owners of land owe different duty to trespassers, invitees, and intermediaries: Own less
so trespasser is liable for all foreseeable and unforeseeable damages – intentional/
negligent/ accidental/ act of God. Invitee – may be a different rule.
6. Problem: Has tremendous possible scope b/c doesn’t need to be right (could not have
been necessary at all as long as thought it was).
C. Different between Necessity and Self Defense
1. The distinction from self defense is that the party injured does not create the risk (i.e., they
are an innocent third party)
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CHAPTER 4 NEGLIGENCE
I.
History
A. Negligence grew out of trespass on the case
1. P must prove actual damages and fault
2. Negligence is more flexible than intentional torts
3. Negligence concerns the actions of the D
4. Lies between strict liability and intentional torts
5. Culpability is central element
II. Elements of a cause of Action
A. Duty—legal duty to P to conform conduct to a certain standard (usually a reasonable standard);
an obligation by D to exercise sufficient care towards the P when danger is reasonably
foreseeable.
B. Negligence – breach of the duty by failure to exercise due care(failure to conform conduct to the
required standard) Note: It is possible to be negligent under this prong without being liable for
the tort of negligence
1. Methods used to show negligence
a. Calculus of risk
b. The Reasonably Prudent Person
c. Custom and Practice
d. Malpractice standards
e. Judicially created statutes
f. Statute as setting standards
2. What is the standard of negligence: may be action or failure to act
a. Failure to observe
b. Failure to appreciate risk (i.e. smoking in a gas station)
c. Failure to remember (i.e. doctor forgets P’s allergy, forget to fix a tire)
d. Calculated failure
e. Carelessness in Performance
f. Faulty conclusions
C. Actual Damage—actual loss or damage of a type recognized by negligence law - not just harm
or injury – a person cannot recover punitive damages unless actual damages occurred
D. Cause in Fact—“But For” test—breach as a matter of fact must have caused the damages (a factual
inquiry); negligence must in fact be the cause of the damages complained of; but for D’s act,
P would have suffered damages.
E. Legally Responsible Cause—reasonable causal connection between the D’s conduct and the P’s
resulting damages—is it fair and appropriate to hold the D liable? (This element combined with
element D constitutes proximate cause.)
F. If any of the above elements is missing there is no liability.
G. Note: Always judge a person by actions NOT by consequences.
H. A person is to be judged by the standard of their conduct at the time of the offense and not by its
consequences.
I. Conventional elements combine: Proximate Cause = Cause in Fact + Legal Cause
26
J. The Difference between Intentional Torts and Tort of Negligence
1. Intentional Tort
a. Act
b. Done with intent to cause a specific consequence
c. Specific cons in fact occurs – the cons required depends on the tort
d. No damages necessary
e. Liable for virtually all consequences
f. Not based upon fault or culpability
2. Tort of Negligence
a. Act not required
b. Done without any intent to cause harm
c. No specific cons required – negligence includes many cons
d. Damages are necessary
e. Liability limited by duty and legal cause tests
f. Requires fault and culpability
III. The Negligence element of the tort of negligence
A. The calculus of risk approach (Always useful analytical argumentative tool and most useful
where estimates can be made)
1. Probability (P)—the probability of the occurrence of the accident (likelihood)
a. The probability that the D’s conduct would result in the P’s damage
b. Was the conduct reasonable considering the risks?
c. It is not necessary that there be more than a 50% probability of harm occurring
for D to be negligent for not taking precautions.
d. Ask if the risk was justified? If conduct was reasonable considering the risks?
Blyth where a new plug burst pipes in exceptional cold.
e. Factors affecting probability (Lubitz—D leaves gold club in the yard and his son
whacks neighbor kid with it; parents are not automatically liable for the torts of
their children; court held that the father is not negligent because the gold club is
not so dangerous of an object; Banzhaf disagrees, he thinks that it was reasonably
foreseeable accident)
i. Son:
1. duty: yes b/c they play together
2. breach of duty: yes by swinging and no warning
3. damage: yes, broken jaw
4. cause in fact: yes, if warning given wouldn’t have
happened
5. legally responsible cause: yes
ii. Dad
1. duty: to anyone using his property
2. breach: by leaving it in the yard
3. damage: yes
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4. cause in fact: questionable b/c if he had not left the club
there would be no accident but if he had warned them,
there may have not been any difference
5. Legally responsible cause: ???
6. Object/Instrumentality
a. Is it obviously and intrinsically dangerous?
i.
Higher probability
ii.
Object creates unreasonable risk (ex. Machete v. gold club)
7. Where the instrument was placed or left
8. Maturity/age/propensity of person/child
9. Amount of supervision
f. Not concerned with the consequences—P must prove that D’s conduct at the time it
occurred was unreasonable because it was foreseeable that the result would occur.
g. Standard of Case – Reasonable man under similar circumstances—conduct cannot
create an unreasonable risk
2. Loss (L)—the magnitude of the harm or the loss to be expected
a. Elements of loss and probability balance with each other—although the probability
may be low (P), a substantial loss (L) makes D negligent
i. Example: A man with one eye not given safety goggles, L is higher than a
man with two eyes in the same situation
b. Gulf Refining— (Bunghole) resulting loss from defective gas cap was substantial.
There must be a preponderance (large amount more than 50%) of evidence for P to win. It
was held that we must look at the likelihood of the accident to determine
foreseeability.
3. Burden (B)—the burden of preventing or reducing the accident; Ask what is a justified risk?
a. Monetary costs
1. Davidson: Car accident on curving road. P claims railings on side of road should
have kept car from going off road. Ruling for D county.
 Technology, experience, value of life raise standards of care
 Real problem with situation was slant of road. (Opposite of banked)
b. Difficulty/inconvenience in installing
1. Blyth v. Burmingham Waterworks Co. – Co. didn’t bury pipes deep
enough to avoid unusually deep frost. Pipe ruptured and flooded Blyth’s
basement. Burying them deeper was not “reasonable burden.” Court found
for D because the standard of care is foreseeability and it wasn’t
foreseeable.
c. Social utility/practicality i.e. Yellowstone giesers: signs to warn to stay on the
path but no fence b/c then people would not be able to see them
d. Burden under the attractive nuisance doctrine
1. Generally, a landowner has a duty of reasonable care to those invited or
permitted on property and there is little duty to trespassers
2. If landowner has something on his property which attracts people then if
injury occurs they are treated as invitees b/c it is reasonable to expect
them to be there. For example, when the owner of dangerous premises
knows or has good reason to know that child trespassers will be attracted to
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4.
5.
6.
7.
8.
the premises, he is under a duty of care to protect such children from the
risks arising from such activity (higher standard of care)
a. Chicago RR—had duty to lock turntable; doesn’t require absolute
certainty
i. P is not high, L can be high, B is low for both the cost and
inconvenience.
e. Burden Changes over time—Effect of Technology
1. New technology developments make new things possible – Davidson
originally the county was not held liable but now because of new
technology, they would be
2. Can affect the cost—make things more economically feasible
3. Learn about previously unforeseen damages
4. Law becomes more sophisticated and sympathetic
5. Problems:
a. Deciding today’s cases based on old standards
b. Retrofit—expense to fix something that has already been built
c. Decisions from one era may have impact on others (problem for the jury)
6. Federal Torts claims Act: originally government had sovereign immunity and
cases like Davidson couldn’t have occurred but with this act, government
agrees to be sued as if they were a private party.
US. v. Carroll: Judge Learned Hand finally invented calculus of risk formula to deal with this case
Calculus of Risk FORMULA: P x L = expected loss/foreseeable risk
a. B < P x L  negligent
b. B > P x L  no liability
Considerations
a. High “P” indicates that D is likely to be negligent
b. High “L” indicates that D is likely to be negligent
c. High “B” indicates that D is not likely to be negligent
1. In situations where numbers can be estimated, the calculus of risk provides
ONE way of calculating the standard of care
d. Economic man theory: it doesn’t make sense to spend 3 million dollars to prevent
2 million dollars worth of accidents
Problems with the Calculus of Risk
a. Difficult to put dollar value on human life or pain and suffering
b. Ignores the transaction costs (legal fees, cost of conducting the study, etc.)
c. Who should bear the burden? (Gov’t, manufacturer, consumer?)
d. What if it’s cheaper to have the users do something rather than the manufacturer?
e. Have economically desirable accidents
f. Incentive not to fix things with impunity
i.
Ford Pinto—extra $10 per car was larger burden than possible lawsuits.
HYPO for Calculus of Risk—A sells TVs and on the average 100 sets out of one million
malfunction and results in liability of $20,000 per malfunction. It would cost $3 per set to
prevent the malfunction from occurring.
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100/1,000,000 x $20,000 > 3
or
100 x $20,000 > $3,000,000
2 > 3 (greater)
2,000,000 > 3,000,000 (greater)
Therefore, by economic standards, it is cheaper for the manufacturer not to fix the malfunction.
B. The Reasonably Prudent Person
1. General Rule—The standard applied with respect to mental traits is to hold people to a
standard of a reasonably prudent person under like and similar circumstances unless the actor
has a higher mental ability than reasonable and then that person is held to a higher standard—
this is an OBJECTIVE TEST but it does take into account some individual characteristics.
2. Rest 2d §289: The actor is required to recognize that his conduct involves a risk causing
an invasion of another’s interests if a reasonable man would do so while exercising:
a. such attention, perception of the circumstances, memory, knowledge or other
pertinent matters, intelligence, and judgment as a reasonable man would have AND
b. such superior attention, perception, memory, knowledge, intelligence, and judgment
as the actor himself
3. Knowledge
a. There are certain things which are common knowledge in a community which
everyone must know (obligation to know common facts)
1. Even imbecile is held to “average” standard. Vaughn v. Menlove—hayrick built too
close to neighbor’s cottages
2. Duty to investigate what is common knowledge in a community (a
reasonable period of adjustment is allowed). If you come into a new town,
you have the duty to investigate and discover practices (according to the
restatement).
i. Delair v. McAdoo—accident when tire blew out. Liability to driver, who should
have known about tire problems.
ii. Footnote: Gas heater in unventilated bathroom expels Co2: landlord
is required to know but not the tenant.
3. Rest 2d §290: For the purposes of determining whether the actor should
recognize that his conduct involves a risk, he is required to know:
i. the qualities and habits of human beings and animals and the
qualities, characteristics, and capacities of things and forces is so far as
they are common knowledge at the time and in the community AND
ii. the common law, legislative enactments, and general customs is so far
as they are likely to affect the conduct of the other or third parties
iii. Comment: As a reasonable man, the actor is required to possess such
scientific knowledge as is common laymen at the time and in the
community. Thus, he is required to know the ordinary operation of
well-known natural laws. He is required among other things to know
the poisonous qualities of many drugs, chemicals, and gases and the
explosive or inflammable qualities of many chemical compounds and the
intoxicating quality of certain liquids.
b. Superior Knowledge—if the D has knowledge/skill that is superior, the law demands
that a person’s conduct be consistent with that higher knowledge
i.
Heath—pilot should have known to have flaps down. Uniform standards
for all pilots, regardless of experience.
30
4. Emergency Doctrine—What would a RPP do under the circumstances? How would a RPP
act when confronted with a similar emergency situation? Do NOT judge the conduct from a
cool hindsight view. Look at the totality of circumstances.
a. Example: Cordas v. Peerless—oddly written verdict where taxi was carjacked and driven in
unbecoming manner. Driver acted in freaky—and understandable—way. Such an
emergency situation is not necessary to act as a RPP but as a RPP in a
emergency situation. Note: in this situation, the cab driver also had defenses of
duress and necessity.
b. Exceptions:
1. The actor created the emergency
2. Situations in which you must expect an emergency (i.e. driving near a
school)
3. Occupations in which it is required to be prepared for emergencies such as a
doctor, fireman, etc.
5. Physical Characteristics—RPP of similar physical characteristics/handicap
a. Exception to general RPP rule: standard is the same but type and amount
changes
b. A reasonable blind man
1. Roberts—blind man walking w/o stick bumps into and knocks over Roberts. Was
Bursen a “reasonably prudent blind man?”
2. Also take into account experience
c. Different people must take different levels of care to conform to the RPP standard
(i.e. deaf person driving must take more care)
d. Intoxication—there is no different standard of care (NO reasonably prudent drunk)
1. There is no allowance for a physical infirmity that was either voluntary or
negligent
e. Addiction—generally not given special treatment but may be a different standard
i. Pharmacist mistake leads to pill addiction – case of contributory negligence
ii. Alcohol manufacturer found contributorily negligent when teenager
drank entire bottle of tequila
f. Must look at the standard of care, the amount of care and the type of care
6. Mental Characteristics—Not taken into account on individual basis
a. No allowance for mental condition – held to RPP standard
b. For extremely low mental capacity/retardation, short of most extreme cases, no
allowance is made. Rationale is that it is too hard to draw the line.
i. An example of an extreme case is Lynch v. Rosenthal where a
retarded boy was hit by a tractor. It was held that he couldn’t
appreciate the danger so D is liable. P was not considered to be
contributorily negligent.
c. Need to create a uniform standard
1. Exceptions
a. Temporary or sudden mental incapacity
i.
If it was sudden and totally unexpected, D is not negligent.
If condition is permanent it is held to a RPP standard
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ii.
Driver overcome by sudden insane delusion was not held to
RPP standard (Breunig)
b. Old age – can this be taken into account? Consider the policy
arguments. 2nd Restatement would not consider this exception.
c. Children
i.
Standard is to RPP of like age/intelligence/experience under
like circumstances (reasonably prudent child)
ii.
Exception—children participating in activity meant for
adults (Robinson v. Lindsay—child driving ATV)
 child engages in an activity meant for adults
 inherently dangerous activities (snowmobile
driving)
7. Why is a RPP a cop out?
A. Ad hoc basis (spontaneously put together) – formed for this particular purpose
B. Refuses to take responsibility to take the result; cop out
C. A cover up; under our system, juries are only supposed to decide factual issues
and judges are to decide law (juries have no expertise, no information, no
balancing of advantages and disadvantages, emotional bias…)
D. May be a very bad system but then again, democracy might be as bad although
there may not be an alternative
E. Confusion compounded – jury decides years after events happen
C. Custom and Practice
1. Business Custom—provides a Permissible inference that the conduct is reasonable
a. Hodges—attorney used mail service on insurance company as per local custom. Court said
service was not good, but not malpractice.
b. It is relevant/persuasive evidence, but it is NOT conclusive or binding
c. Jury is NOT required to accept it as the standard of care
f. Shows certain things in industries i.e.:
i. What people believe to be the balancing and calculus of risk: shows
people in similar situations have chosen to do x or y
ii. Feasibility: whether it has or has not been cost burden to others in
business. i.e. smoke detectors
iii. Show technique is well known
g. Must be reasonable
g. Rationale:
i.
Industry standards tend to be low (adherence is not an absolute defense)
ii.
In doing something new, RPP would follow custom
iii.
Standard of care changes over time (retrofit problem) see Trimarco case
iv.
No particular group can set their own rules (through standard or custom)
h. Custom provides evidence that:
v.
Others are doing it
vi.
Tends to show that it is not burden
vii.
Shows there is widespread knowledge of the technique
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a. Landlord has duty to reasonable care to tenant; shower glass case
(Trimarco)
D. Standard of Care of the Professional
1. Malpractice—a negligence action against a professional
2. Standard of Care – a person engaged in a profession is supposed to have all of the skill,
knowledge, and judgment normally practiced by members of the profession (and usually in
the same community)
3. General Rules of law in medical malpractice
a. Doctors are presumed to possess degree and skill of learning of average member
of profession in good standing in the community in which he practices and to
apply that skill with ordinary and reasonable care.
b. To be liable he must have done something in treatment the recognized standard
in his community forbids of tails to do that which is required.
c. For P to win, he must give affirmative evidence of standard in the community.
d. Expert testimony is necessary unless departure form norm is so obvious that a
layman can see it
e. Testimony by a doctor that he would have acted differently is not enough. You
must show the community’s custom and practice.
4. This standard is judged by an objective test: articulated in Heath (pilot) – test must be
objective as to whether a professional exercised ordinary care and caution of a
reasonable and prudent ____ (fill in the blank).
a. Why professions set their own standards (unlike other trades)
i.
Because of social policy, there is a greater social good in having the
profession set their own standards – examination, accreditation, continuing
education (Social Policy and proper role of law (best standard))
ii.
Theoretical stand – the professional says that they have the same skills
and judgment so it is only fair to hold them to that standard.
iii.
Practical Stand – not good to second guess the profession; professionals
set themselves out as having necessary knowledge and skills in the
particular field.
b. The conduct is judged against a RPP under the same circumstances
i.
This is an objective standard and does not take into account a D’s specific
training and experience
c. An adequate defense is that the D was acting in good faith and followed the
established custom in an unsettled area
i.
Results are not guaranteed – a professional is required to use his own best
judgment and he is not liable for judgment error
5. Standard of Attorneys: Hodges
a. 3 part duty
i. requisite degree of learning
ii. best judgment
iii. ordinary care and diligence
b. Cause in fact is hard to prove if you are suing your own lawyer for malpractice.
Can never say “I should have won”. Lawyer with all fats of case should be able
to prove you had no chance
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c. trial within a trial results (often in malpractice cases)
i. first show negligence in actions of professional
ii. then, prove situation/outcome would have been different
5. Problems with the standard for professional
a. Professionals set their own standards which the jury must apply
b. Growing expectation – when things go wrong, we blame the doctor/attorney
c. Higher than normal risk (especially in medical cases)
d. Stronger likelihood that emotions will cloud judgment of jury: sympathetic to
injured party even if not really doctor’s fault.
e. Conspiracy of Silence—P generally must present evidence of the professional
standard by way of expert testimony. According to the locality rule, the expert must
be from the same area/community as the D. This often presented a problem for the P
because of the conspiracy of silence – medical experts would refuse to testify against
a fellow doctor.
i.
Boyce v. Brown—Medical Malpractice. P lost because no doctor would
testify as to “ordinary standard of care.” You cannot compel witness to give
professional judgments re: other professional’s actions.
ii.
Morrison v. MacNamara—Urinary Tract Test taken while standing up. Court
broke from “locality” rule in order to “raise the bar” of care and “exchange
knowledge.”
iii.
Conspiracy of Silence has gradually disappeared
 locality rule has broken down, now National Standard of Care
 Doctors are board certified in specialties
 Communications and procedures have expanded and there is more
access to equipment
4. Doctrine of Informed consent
a. Stages of Development
A. Battery Action—must have consent—was there valid consent (i.e., was the
patient warned? Was action within scope of consent?
B. Negligence action—prior to Canterbury
1. There was a duty to inform and disclose – duty determined by
standard of medical profession—subject to conspiracy of silence
C. Canterbury—held that it was no longer appropriate for doctors to make
their own rules. There is duty to disclose all material risks according to an
objective standard – RPP would not have consented – no need to show
customary practice to disclose
D. Scott—Sues for failure to warn claiming that she would not have had
the operation if she knew of the risk. Material risk is a subjective
standard – would the particular patient consent if the risk had been
disclosed? Held that a patient suing under informed consent must
allege and prove.
b. Today to prove malpractice under the theory of informed consent, a plaintiff must
prove:
A. D physician failed to inform him adequately of material risk before
securing his consent to the proposed treatment,
34
B. If he had been informed of the risks he would not have consented to the
treatment, AND
C. The adverse consequences that were not made known did in fact occur and
he was injured as a result of submitting to the treatment
1. These elements give the P the chance to determine his fate
c. Medical Community Concerns
A. Risk may deter people from beneficial operations
B. Disclosure may affect people’s attitude toward recovery
C. Warnings can complicate the procedures itself
D. Undermines the trust relationship between the doctor and patient
d. Standard of Care is an absolute defense and the jury must apply the standards set by
the profession unless there was a material risk the P should have been informed of
e. Malpractice standards
A. Required to have skill and knowledge ordinarily possessed by others in profession
(custom & practice)
B. Jury may not depart from that standard
C. Prima Facie requires expert witness (conspiracy of silence)
f. Reason for rules:
A. Theoretical: professional is not perfect, but needs to follow standards
B. In absence of expert testimony, it is inappropriate for laymen to judge professionals
C. Social policy and the proper role of law with “learned professions”—we expect them
to maintain high standards to protect public. (Laymen’s second guessing weakens
this.)
g. Rise in incidence of malpractice:
A. Growing expectation of medical care
B. Growing opinion that everyone is her own expert
C. Medical procedures often produce “dramatic” results (brain death, deformity, etc.)
E. Rules of Law—should the courts establish a standard of care by judicial decision?
1. Two perspectives:
a. Holmes—courts should set rules of law to take the issue out of the jury’s hand – if
the legislature did not law down the law, the court should. Holmes felt the court
should establish a National Common Law to be applied uniformly
1. This view came about with the arrival of the railroads—this changed tort law
because there was no longer mutuality of risk—RR had trouble wining cases
because they were considered the outsider/intruder
2. Advantages:
a. Avoids uncertainty and prejudice
b. Avoids delay and waste of judicial resources
c. Provides certainty, uniformity, and predictability
d. Jury no longer deciding what amounts to questions of law (only
questions of fact)
b. Cardozo: courts should not set rules of law—rules of law must be flexible to the
situation and the jury must consider each case—issues should be left to the jury to
find if a rule is ineffective and/or unreasonable (Pokora—view of train track was
35
obstructed and P was hit; the issue was what is the proper standard of care for
crossing RR tracks) – Rules must allow for special circumstances
1. Criticism of Holmes
a. Difficult to anticipate conditions (too many exceptions). Rule is not
workable; spend too much time litigating exceptions.
b. Courts are judicial not legislative – not equipped to investigate
c. Rules make law too rigid—law must change with the times
d. Predictability is not that important
2. General rule for trains under Cardozo: develop precedents, let jury
decide.
c. Case showing modification of rule (Helling—32 year old P gets glaucoma because D
did not give him a pressure test which under custom and practice was only given to
people over 40)
1. Court wrongly overruled the standard of care set by the profession and
applied the calculus of risk which indicated the test should have been given
2. Even though the doctor followed normal standard – he must use
reasonable prudence. This is an example of rule of law.
F. Violations Of Statute – evidence of negligence but Not conclusive
1. Statutes can have 3 effects on torts and negligence
a. Can create an entire new tort (i.e. new duty  new breach)
b. Can set the standard of care to apply in an existing tort (i.e., negligence, ex. wearing
of tires)
c. Miscellaneous procedural effects: Can create a duty, can create standing (ability to
bring a case), limit recovery, etc. and affects damages an dprocedure.
2. Applying a criminal statute as a standard of care in a negligence action (tort/civil action)
a. Justifications
i. Legislative intent: courts create a legal fiction of legislative intent. If
congress has truly intended it, they would have done it.
ii. Reasonable people will obey – not necessarily so
iii. Appropriate balance of power – legislative judicial comite. Reasonable
working relation between judicial and legislative branches. Court should
advance interests of legislature even if they don’t specifically provide for
it.
b. Problems
i. No 5th Amendment protection
ii. Proof by preponderance NOT beyond a reasonable doubt
iii. Too many “laws” are completely overlooked
iv. Too strict for civil case
c. Flow chart
i. What is the effect of the statute?
1. Step 1: Could you bring the negligence action even in the absence of
statute?
a. No  may make a new cause of action
b. Yes  may set a new standard of care
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2. Step 2: Is it appropriate to adopt the statute as a standard of care?
a. Considerations:
i. Purpose of statute
ii. Hazard it seeks to prevent
iii. Persons to which it applies
iv. Harm it seeks to prevent
v. Problems of proof
vi. Problems of causation
vii. Frustrate policies – it is unfair
b. If no  generally statute as no impact on negligence act
c. If yes then the restatement below:
d. Restatement §287, 288. Generally, the courts will not adopt
a statute as a standard of care when the purpose of the statute
is to:
i. Protect the interests of the state
ii. Secure rights and privileges of individuals
iii. Protect a class of people other than the one invaded
iv. Protect an interest other than the one invaded
v. Protect against a harm other than harm that resulted
3. Cases
a. Ozborne—not labeling a bottle as poison as required by law
i. Action could have been brought without statute because the D owed a
reasonable standard of care to the public
ii. Appropriate to adopt the statute because it was designed to protect a class of
people that includes the P
b. Stachniewicz—P injured in a bar room brawl
i. Action could be brought without statute  reasonable standard of care
ii. Statute prohibits serving liquor to intoxicated persons therefore it is not
intended to adopt as a standard of care
iii. Ordinance—purpose was to prevent bar brawls and therefore is an
appropriate standard to adopt
iv. State—legislative enactment by state or federal legislature
Ordinance—statute passed by subdivision of state (city/county)
Regulation—rule passed by agency set up by legislature (Department of
Health)
c. Brown (p. 217 footnote #3)– unlicensed chiropractor; P hires D for medical
treatment and she ends up paralyzed. Held: statutory violation of practicing
without a license has nothing to do with the arm done. It was not the failure to
have a license that caused the harm but lack of skill. No proximate cause.
i. Action could be brought without statute
ii. Not appropriate to adopt as standard of care because the purpose was to
protect the public against unskilled labor
1. Unlicensed does not mean unskilled
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2. P must show that the D fell below the standard of care (i.e., lacked
the appropriate skill—same standard for driver’s license)
d. Yellow Cab: D left key in the cab and thief steals it.
i. Thief is an intervening cause and it is a criminal act.
ii. If there were no statute, could would probably dismiss because of lack of
legally responsible cause
iii. Court says that arguably, one of the purposes of the statute was to
prevent this from happening, question should at least go to the jury
(statute may have more than one purpose)
1. Step 3: Determine if the situation at bar is an exception (usually a
question of law for the judge)?
a. Did the legislature not mean for the statute to apply in this
kind of situation (this is not usually relevant)?
b. If yes  statute will have no impact on negligence action
c. If no  go to the next step
2. Step 4: What is the rule in this state concerning the effect of a
criminal statute found to be an appropriate standard of care in a
negligence action?
a. Evidence of Negligence – jury considers as evidence to be
weighed along with all other evidence (jury may but is not
required to infer that D’s conduct was negligent—a
permissible inference)
b. Negligence Per Se—“negligence in itself”
i. Negligence is determined as a matter of law in the
absence of a valid excuse
ii. Judge decides if there is a valid excuse/justification
(as a matter of law)
iii. Factual issues are left to the jury with appropriate
instructions
c. Presumption of Negligence—jury is required to accept the
presumption of negligence unless D introduces sufficient
rebuttable evidence
i. Jury decides if there is a valid excuse/justification
3. Now ask: Is there a valid excuse or justification?
a. Yes  statute has no impact on the action
b. No  negligence has been established, but the P must still
establish that there was a duty, cause in fact, legal cause, and
damages
c. Definitions
i. Justification—violation of statute because action
serves a more important function or overriding
public purpose (i.e., speeding to get someone to the
hospital)
ii. Excuse—violated statute but there are mitigating
circumstances:
38
1.
2.
3.
4.
Act as a result of latent damage
Non-compliance due to unforeseen problem
Acted as RPP
Exercised highest degree of care possible
and still couldn’t comply (Freund)
5. Reasonable violation b/c of actors of
incapacity
6. Confronted by emergency
4. As per above states, treat negligence for violation of statutes in 3
ways.
a. Evidence of negligence: permissible inference of
negligence. Small minority of states use the issue purely
for jury to decide either way
b. Negligence per se: negligence in itself:
i. Will be considered negligence as a matter of law
unless D proves otherwise (has a valid excuse)
ii. Judge decides if there is a valid excuse as a matter
of law
iii. Factual issues given to the jury with appropriate
instructions
1. Martin v. Herzog – A couple get into a car
accident while driving around the bend
and P died. P did not have his lights on
and D did not stay in the right lane.
Driving buggy at night with no lights on
in violation of statute is negligence per se.
Jury has no dispensing power. If they find
he was driving without lights on , they
must find him negligent
c. Presumption of Negligence:
i. Jury required to accept presumption of negligence
unless D introduces sufficient rebuttable evidence
in form of a justification or excuse
ii. Jury decides if the excuse/justification is a valid
one
iii. Creates shift in power from judge to jury
1. Zeni v. Anderson – a nurse gets hit by a car
on a snow covered road. D claims P was
contributorily negligent because she
violated a statute which forbids walking in
the street. Held that P presumed negligent
but this is a rebuttable presumption and
she rebutted it.
e. Perry v. S.N. and S.N. –a child day care case with child abuse going on
f. Freund v. Debuse – P was injured when D’s pick up was rear ended by his car. D
says that his breaks unexpectedly failed. Statute says that all breaks must be
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maintained in proper working order. P wants negligence per se. Held that the
rebuttable presumption of negligence which P rebuts.* The significance of this
case is that originally there were no exceptions allowed for latent defect, lack of
control, highest degree of care possible exercised. Now burden is no D to prove
that he acted as a RPP.
G. Proof of Negligence
1. Court and Jury
a. Pre-trial Discovery – vast body interrogatories, depositions, examinations, etc.
i. Adv—encourages settlement/ little surprise in the court room/ ability to meet
other sides evidence
ii. Disadv—Costly/time consuming/subject to abuses
b. P’s burdens
i. Getting to the jury—convince the jury—convince the judge there is enough
evidence that a reasonable jury could decide your way (i.e., by permissible
inference not unwarranted speculation), And
ii. Convince jury by a preponderance of the evidence
c. Circumstantial evidence – evidence based on inference and not on personal
knowledge or observation.
i. Testimonial – eyewitness accounts (easy to manipulate and not accurate)
ii. Real – more persuasive (can see it, feel it, and/or hear it)
d. Circumstantial evidence must allow a reasonable inference
i. Weak almost by definition but can often be almost convincing as hard
evidence.
ii. Banana peel cases—must be able to make a reasonable inference that it was
on the ground for a reasonable amount of time (i.e., employee saw it or it was
dirty and gritty) to get to jury
1. Goodard – peel on floor and may have been dropped by anyone
extremely recently. No case because there is a lack of evidence.
2. Anjou – employee leading P. Evidence that the peel was there for
a long time (black and gritty) enough to prove there should have
been constructive notice. Note: R.R. is a common carrier and
should have higher duty of care.
3. Joyce – peel in supermarket, no evidence of notice
e. Notice
i. Actual notice—employee or agent is told of the condition
ii. Constructive notice—if there has been a reasonable amount of time for RPP
to see it and take action
iii. Constructive notice due to knowledge of the business—business is dangerous
by the nature of the way it’s conducted (Jasko, pizza on a slippery floor)
1. Basic operating techniques make dangerous conditions easily
foreseeable.
2. Look to custom and practice to see if this was standard care; not
creating inferences here, just standard of care
Notice: when dangerous conditions are continuous and/or foreseeable, the notice
requirements do NOT have to be met
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H. RES IPSA LOQUITOR—the thing speaks for itself
1. Res Ipsa is a category of circumstantial evidence as to which the law has developed some
general rule or principle
2. Allows the jury to make a permissible inference
3. Evidence does not have to prove by a preponderance – it must be more likely than not that
there was negligence (this allows the P to smoke out the evidence from the superior
knowledge of the D)
4. Allows P to “smoke out” evidence/ superior knowledge of D
5. Three Requirements to prove Res Ipsa
a. More likely than not there was negligence (generally need expert testimony to
establish MLTN),
b. D had exclusive control and management of the instrumentality at the time of the
accident, AND
c. P was Not contributorily negligent
6. Cases Illustrating the three requirements
a. Negligence
i. Byrn—P injured by barrel that fell out of D’s shop—reasonable inference
(MLTN) that one of the D’s employees was negligent, D had exclusive
control, and P was not contibulatory negligent.
ii. Cox—Unexpected airplane crash—MLTN due to negligence
1. contrary evidence does not destroy the inference – P does not have to
rebut every possible explanation
ii. Jogitis Hypo: patient has operation with a 50/100,000 chance of death
resulting—if P dies can we rely on RIL to get to the jury?
1. Depends on what % of the deaths are caused by the negligence as
opposed to other factors X/50 (i.e., how many out of 50 are caused
by negligence?)
iii. McDougald – P driving behind a truck whose spare tire came undone and
flew and hit P’s car; D was negligent
1. Instrumentality was under the control of D or if there was
negligence it was done by D
iv. Problem with Res Ipsa in the medical field
1. Mortality rates depend on various factors
(sex/age/smoker/weight/lifestyle/etc.)
2. Difficult to get expert testimony
b. Exclusive Control – at time of negligence, who was most likely to be in control?
v. St. Francis Hotel v. Larson – chair thrown out of hotel window—Not a RIL
case because the hotel was not in exclusive control, the guests control the
furniture (3rd party)
1. P should have applied custom and practice or Calculus of Risk
vi. Hypo of car rolling down hill (influence of time)
1. Rolls down soon after being parked – reasonable inference
2. Rolls down 5 hours later with a person running away – Not a
reasonable inference because it must be MLTN
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vii. Ybarra v. Spangard (know name) – P suffered injury to shoulder during an
appendix operation while he was under the care of many different doctors
and employees)
1. P can prove negligence and non-contributory negligence but Not
exclusive control because too many people involved.
2. Rule: when a P receives an unusual injury while unconscious and in
the course of medical treatment, all of those Ds who had control over
his body or the instrumentalities which might have caused the injury
may properly be called upon to meet the inference of negligence by
giving an explanation (i.e., rebut the inference)
g. Rationale: RIL applies to Ybarra because the case falls within the spirit of the
doctrine:
i. Integration – all employees should be interacting
ii. P deals with doctors as an entity – all work together
iii. Special obligation of the medical profession to care for safety and health of
people
iv. Knowledge of D – MLTN someone knew what happened
v. Reaction to conspiracy of silence
vi. Helplessness of P
vii. Deep Pocket Theory – if it’s clear hospital caused the problem, it is fair to
place the burden on it (balance of fairness, or a balance of “Unfairness”)
h. Doctors are independent contractors, therefore, respondeat superior (let the superior
answer) does not apply because they usually don’t have people below them
e. Hypo: turkey was made by 6 mothers, and one of the turkeys gave people food
poisoning, they were not held liable because unlike the Doctor case, the doctors
were working in unison, and they all had the opportunity to observe
I.
The procedural Effects Of RES IPSA LOQUITOR (handout)
1.
Permissible Inference – an assumption of the existence of one fact which the law permits
(but does not require) the trier of fact to make on account of the existence of another fact
or set of facts (dirty banana peel  jury permitted to infer it has been there a while) (D
would likely move for a directed verdict for lack of sufficient evidence)
a. Jury permitted (but not required) to assume that negligence is more probable then
not based on set of facts.
b. Test: D’s motion to dismiss will be granted if the evidence is so weak that a jury
cannot be permitted to infer a necessary fact (i.e., negligence) and the P will not be
permitted to take his case to the jury
2.
Rebuttable Presumption – an assumption of the existence of one fact which the law
requires the trier of fact to make on account of the existence of another fact or set of
facts, at least in the absence of rebuttal evidence (toe in coke bottle  jury required to
infer negligence in absence of rebuttal evidence); In other words, an inference drawn
from certain facts that establish a prima facia case, which may be overcome by the
introduction of contrary evidence.
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3.
4.
5.
6.
7.
a. Test: D’s motion to dismiss will be granted if the evidence is so weak that a jury
cannot be permitted to infer a necessary fact (i.e., negligence) and the P will not be
permitted to take his case to the jury
b. Burden of production shifts to the D to rebut the evidence.
Burden of Proof (Risk of non-persuasion) – if the persuasive effect of all of the evidence
(evidence can be introduced by either party) on a particular issue is exactly equal, the
trier of fact must decide against the person who has the burden (usually the P)
a. In rare cases, a judge may rule that Res Ipsa has shifted the burden of proof (which is
normally on the P) to the D. He must introduce evidenc of greater weight than P.
D must prove 51% in his favor and P only 50%
Negligence Per Se—in most states if a P can show that the D violated an appropriate
criminal statute which the court adopts as a standard of care, negligence is established as
a matter of law (negligence per se) if there is no evidence of facts which the court
determines would constitute a legally valid justification or excuse
Inference or Presumption?
a. Look at the factors of: how strong is the inference and how persuasive is the
argument, in view of all the facts, common sense, and common knowledge
i.
Permissible inference—negligence is more likely than not but not so
compelling that a reasonable person couldn’t find the cause to be something
else (i.e. car or plane crash on nice day)
ii.
Rebuttable presumption – circumstances are so extreme and unlikely to
happen otherwise that a reasonable man could not help but find negligence,
except where sufficiently strong rebuttal evidence is introduced (i.e., 2 trains
in different directions on same track, c-section on a male, toe in coke bottle)
Effect of Rebuttal Evidence
a. If Res Ipsa originally created and Permissible Inference:
i.
Rebuttal evidence is very weak  inference will remain
ii.
Rebuttal evidence is strong  inference may be destroyed
b. If Res Ipsa originally created a Rebuttable Presumption:
i.
Rebuttal evidence very weak  presumption remains
ii.
Rebuttal evidence is mild  reduce presumption to inference
iii.
Rebuttal evidence is strong  completely eliminate Res Ipsa
Goldstein v. Levy - chandelier in a theater fell and injured a patron – presumption; res
ipsa applies and D must rebut presumption of negligence but didn’t do so.
a. However,
i.
If D introduced evidence that it never fell before, this is probably so weak
that presumption will remain and verdict for P
ii.
If D introduced evidence of recent careful inspection, it would probably
reduce the presumption to an inference and it would be permissible for the
jury to infer that there was negligence
iii.
If D introduced evidence of careful inspection and evidence that a person
was seen shooting at the light at exactly the time it fell, it would probably
destroy the persuasive effect of Res Ipsa and judge would grant D’s motion
to dismiss
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iv.
Someone sneaking around the music hall suspiciously, would destroy the
permissible inference
8. HYPO: Someone with an Arabic name crashed a train, does this still create a presumption that
a jury could only find negligence? This evidence would weaken the Res Ipsa, but it still may
leave alive the inference.
a. FBI has evidence that they were going to crash the train, then the defendant would
win
9. HYPO: can use Res Ipsa with automobile accidents?
a. car hits car, can not use Res Ipsa
b. Bus hits car, the passenger of bus can sue the bus company because they have a
standard of care, while the car passenger cannot sue the car driver
c. Two busses crash, the passenger of Bus 1 can sue the Bus 1 company, but the
passengers of Bus 2 can only sue the owners of Bus 2 (the passengers of the bus can not
sue the other bus company)
CHAPTER 5, CAUSATION IN FACT
I.
Factual Issue – was the negligence the cause in fact of the injury?
A. Methods of Showing Causation in Fact
1. Sin Qua Non – “but for” a particular thing, the accident would not have occurred – D’s
conduct is a cause of the event if the event could not have occurred but for the D’s conduct
(i.e., if you took the D’s conduct out of the videotape, the accident would not have occurred);
can have more than one “but for” cause.
a. Hypos illustrating proof of causation:
i. Bus is speeding, car runs a stop sign and accident occurs
1. Bus driver was negligent – was he the cause in fact? There is not
causation in fact because even if the bus driver had not been
speeding, the accident still would have occurred because the bus
could not have stopped in time
ii. Reynolds – fat lady falls down stairs
1. MLTN that the fall would Not have occurred but for no lights
2. Where the negligence of the D greatly multiplies the chances of the
accident to the P and is of a character naturally leading to its
occurrence, the mere probability that it might have happened without
negligence is Not sufficient to break the cause and effect chain
between the negligence and injuries
3. the jury may make a reasonable inference, and it can go to the jury
on causation of fact
iii. Gentry v. Douglas Hereford Ranch, INC.
1. man shoots someone in the head when he tripped on stairs with a
rifle in his hands
2. assuming there is negligence, did it cause the accident. If the
negligence caused the accident, then they are liable, but if they are
negligent, but it did not cause the accident, then one would not be
liable.
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3. the faulty stair did not meet the but for test, in that it was the cause in
fact
4. can not make the same assumption in the Gentry case because
there is no testimony that he was even on the step when he fell
iv. Kramer – D’s negligence causes cut in forehead and cancer develops
1. Must show more than a possibility that the injury was caused by
another’s negligence (court says we don’t know the cause of cancer
therefore we can’t say it is negligence – this is a weak argument
because we may know that something causes something else without
knowing the exact causal mechanism)
v. Perkins – negligent car driver and negligent RR for speeding
1. Negligence will Not give rise to liability if the injury would have
happened even if the negligence had not occurred (i.e., would the
train have been able to stop if it was going the speed limit)
HYPO: woman in accident, hit by a car on breast injured, and it caused a cancer that lead to double
mastectomy, and 50% chance of survival
└ judge let it go to the jury
└ bruise lasted for 5 months, never healed, occurred at an unusual site of the breast, it happened at the
exact point of the bruise
2. Substantial Factor Test (concurrent causes)
b. When separate acts of negligence combine to produce directly a single injury, each
tort factor is responsible for the entire result, even though his act alone might not
have caused it (usually applied when uncertain of which of the two Ds caused the P’s
injury)
c. Examples
i. Anderson – D sets fire which merges with another fire (of unknown origin)
and burns the P’s property
1. “but for” does not work because either fire could have caused the
damage
2. D’s fire was a substantial factor in causing the P’s damage
ii. Hill—P’s car hit an unlit truck; driver of the car was negligent
1. each was negligent, therefore, each was a cause in fact – each tort
feasor can be held liable for the accident because each was a
substantial factor – each is joint and severally liable
***Causation in fact on web***
iii. Wilder – tears in esophagus
1. In malpractice cases, D doesn’t have to establish that another cause
was the one in fact that caused the accident, only that there were other
possible causes
iv. Herskovitz – doctor reduces chance of patient to live from 39% to 25%
1. The chance the doctor caused the death:
Before treatment
39 live
61 die
After treatment
25 live
75 die
14/75 maltreatment caused the death
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61/75 patient would have died anyway
14/75 = 18.67 therefore there is not a preponderance (over 50%)
that the treatment caused the P’s death, however anytime a patient
comes in with less than a 50% chance of living there will be no
way that you can prove by a preponderance of the evidence that the
doctor was the cause – Court still holds that the causation issue
should go to the jury and that the doctor is liable because reduction
of the chance of survival is a substantial factor
General Rule: If the initial survival rate is less than 50%, cause in
fact under the “but for” test cannot be established
v. Daubert (Bendectin)
When is expert opinion admissible? Is the evidence generally
accepted? Metanalysis – took different studies and tried to
combine them. New law of evidence is adopted and permits
testimony based on scientific knowledge. Is it subjected to peer
review? Problem with this case was that this research was done for
this testimony. It was never published. There was no general
causation (no preponderance of evidence)
v. Hypo: a car rental company rents a car with defective brakes, the driver
negligently fails to see the P and hits him.
1. Under Sin Qua Non, neither company nor the driver is the cause in
fact but both were substantial factors and both are joint and severally
liable.
vi. Throwing a match into an already raging fire: not substantial
4. Toxic Torts
a. Problems
i. To show a particular thing caused a particular problem (how do we prove
that chemicals cause cancer?)
ii. First start with general causation then specific causation. If we prove they do
generally, how can we prove by a preponderance of the evidence in this
situation?
iii. Problem of identifying the source of manufacturer
b. Agent Orange: Vietnam vets exposed and kids have birth defects—chance of getting
cancer by exposure to agent must be greater than 50% to prove by a preponderance of
the evidence that it is MLTN that the death was a result of exposure
i. Normally 100 people die in a population of 100,000.
If 90% increase in risk; relative risk = 1.9 (1.0=normal)
190 die when agent orange is present – the chance that any one person died
from the agent is 90/190 = 48%, therefore you cannot prove by a
preponderance of the evidence that any one person died as a result of the
agent. (even if the risk was double)
Thus, manufacturer is not liable.
If 210 people die when the agent is present (100 normally die):
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110/210 = 52%, therefore there is a preponderance and the manufacturer is
liable to all Ps.
c. Problems in determining which party caused the harm
i. Alternative Liability – where the conduct of two or more actors is tortious,
and it is proved that harm has been caused to the P by only one of them, but
there is uncertainty as to which one has caused it, the burden is upon each
one to prove that he has not caused the harm.
1. Each D is jointly and severally liable – P can collect the entire
amount of his damages against any one D
2. It is unfair when there ware a large number of Ds and therefore a
small probability that any one D was the cause in fact
3. Reserved for the rare case where one the P can prove that they were
not the one liable.
4. This rule applies to joint tortfeasors and master/servant relationship
5. P must bring all Ds to court and each must prove they didn’t do it
6. Summers – 2 Ds shot at quail and hit the P in the eye
a. General rule is that you must prove causation by a
preponderance of the evidence and this case bends the rule
because of an unusual situation where both Ds were
negligent – if only one D was negligent, P would have to
prove negligence.
ii. Concerted Action – where a D does a tortious act in concert with the other or
pursuant to a common design with him, or substantially assists him
1. When the Ds acted pursuant to an express or tacit agreement to
perform a tortious act, and where injury probably would not have
occurred but for the agreement
2. Elements are different if not impossible to prove
3. Ds are joint are severally liable
4. Hypo: drag racing
iii. Enterprise liability – holds Ds liable for sharing in industry-wide misconduct
(i.e., improper labeling, testing, standards, etc.)
1. Applied only in a small number of cases involving close industrywide cooperation, and only an industry composed of a small number
of companies.
2. Each manufacturer is jointly and severally liable, therefore, liability
is imposed even if a particular D can prove that he clearly was not
the cause in fact of a particular accident or injury
iv. Market Share Liability
1. To avoid the harshness of the above rule (where the P can collect the
entire amount of his damages from any one manufacturer)
2. P must join in the action the manufacturers of a substantial share for
the product in question (at least 50%)
3. P may collect from each D only the fraction of the judgment
corresponding to the D’s relative market share
4. Sindell—DES case. Daughters of women who took it got substantial
increased chance of cancer.
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a. Problem: at the time of negligence, Ps were not even born
so the questions arise: Did the drug company have the
duty to them? Yes. Did the drug cause the condition?
Can’t tell because all women who took the drug already
had a similar problem of miscarriage. Theoretical theories
didn’t work so used the market share.
b. Example: Drug X industry
10 producers of drug X at time it was taken by P (each has a
10% market share)
Damages to P = $1,000,000
P sues 6 out of 10 producers and wins ($100,000 each)
P gets $600,000
II. LEGALLY RESPONSIBLE CAUSE
A. Guidelines
1.
First need causation in fact then look tot determine if there was a legally responsible
cause.
2.
Even when there is cause in fact we don’t always want to hold D responsible so we
determine if he is the legally responsible cause.
3.
Legal and Policy considerations of where liability should be cut off for damages
which were in fact caused by D’s negligence.
4.
Rule of Thumb: If injury is reasonably foreseeable there will usually be proximate
cause. If an accident and the resulting damages do not seem in some sense to be odd,
unusual, or unduly related to or disconnected from the D’s negligence, virtually all courts
will find proximate cause exists
a. Exceptions: for reasons of a specific policy, we may wish to have the advantage of a
clear rule which always yields predictable results and/or limits liability (Ryan – NY
spreading fire rule. Held D was the cause in fact but damages were too remote for
him to be held legally responsible)
5.
If the damages are in some sense unusual, although the sequence of events which caused
them is not, virtually all courts will likewise find proximate cause
a. Example: Thin Skull Doctrine (Eggshell Doctrine) – a D is liable for all of the P’s
bodily (including mental) injuries, regardless of how unlikely they were – D takes the
P as he finds him – this extends liability beyond reasonably foreseeable (Bartolone—
P is a weightlifter that was injured in a car wreck went psycho)
b. Exception: look for contributory negligence or reduction of damages
6.
Subsequent injuries: tortfeasor is liable for all subsequent injuries that result from the
original act.
a. HYPO: A breaks B’s leg; B trips because of broken leg and breaks his other leg, A is
liable for that leg too.
7.
If the result of D’s negligent act is reasonably foreseeable, but the exact manner in which
the injury occurred is not, most courts will find proximate cause
B. Tests for Proximate Cause
1. Reasonably Foreseeable – D is only responsible for those consequences which are reasonably
foreseeable (those the disregard of which make the D’s conduct negligent in the first place);
taking into account what the loss would be (calculus of risk); If the consequence is too
remote, D will not be liable even if he was the cause in fact
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a. Wagon Mound 1—ct said when oil is dumped in the water, it is not foreseeable that a
spark will cause it to go off – it’s not fair to hold someone liable for something they
cannot reasonably foresee; if the end result is foreseeable then he is liable
b. Wagon Mound 2 – Here P is a 3rd party  court said the fire was reasonably
foreseeable (remember P actually set the fire in WM1); the risk must be weighed
against the difficulty of removing it
c. Disadvantages to Reasonably Foreseeable Test
i.
Imprecise Test – Can be applied differently because what is foreseeable to
some is not necessarily foreseeable to others
ii.
Unforeseeable result v. unforeseeable method
iii.
Narrow focus
2. Direct and Natural
a. Polemis—dropping plank causes a spark which sets off gasoline and causes fire.
Court assumes that D was negligent in dropping the plank. Court rejects the
reasonable foreseeability test and uses Direct and Natural. As long as result was
D and N (no intervening cause), it cannot have been too remote even if it was
unforeseeable.
b. D liable for all damages which are a “direct and natural” result of the D’s negligent
acts (occurred solely as a result of the acts of nature without some intervening human
act); D is negligent in letting the dangerous vapors to be seeped out
c. D is liable for all consequences no matter how far-fetched or unforeseeable, so long
as they flowed “directly” from his act and Not from independent new causes
d. Clear and easier to apply than the reasonably foreseeable test
e. Problem: this view could result in Limitless Liability – D is liable whether the
consequences are foreseeable or not
3. Restatement Hindsight Test – D is Not liable for consequences which looking backward after
the event with full knowledge of all that has occurred, would appear to be highly
extraordinary – Foreseeability is irrelevant (no proximate cause)
a. Proximate cause only if, when looking at the sequence of events with the advantage
of hindsight, the result does not seem to be highly extraordinary
b. Problem: how should people act if they don’t know until they look back if they will
be liable or not?
5. Unforeseen Plaintiff (Palsgraf – P hit by scale that falls as a result of a fire cracker dropped at
the other end of the station)
a. Test 1 Duty: Majority (Cardozo) – D has a duty (and therefore liability) only to
persons to whom he could have foreseen his negligent act would create some risk of
danger; he hypothesizes that there is proximate cause but the issue is duty;
neglect to mention that railroads are a common carrier and that a BIG scale was
knocked down
i.
Issue is Duty rather than proximate cause
ii.
Did D have a duty of care to the P which was breached?
iii.
P was an “unforeseen P,” therefore, there was no duty and no liability, even
if there is proximate cause
iv.
Problem with duty: not a very good analytic tool (better for policy)
b. Test 2 Proximate cause: Dissent (Andrews) – issue is Proximate Cause; Modified
View; “matter of rough logic”
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i.
ii.
D has a burden of care to protect society from unnecessary danger
Proximate cause  “step by step forseeability test” and prevision (closer to
direct and natural)
iii.
Problem: anything broken into small enough components is foreseeable.
2. Kinsman – ship came loose in storm went down river, knocked into another boat, they went
down river crashed into bridge because bridge guy was late coming on duty and didn’t open it
in time, the river backed up and flooded houses past where the ship had originally been
docked; court says that it is all a matter of expediency
a. Under Palsgraf unforeseen Plaintiff:
i.
All down river are foreseeable but what about people up river?
ii.
Bridge tender is liable because its all foreseeable using hindsight
iii.
Harm was unforeseeable but breaking loose was not.
iv.
Ships are liable
v.
What about the people that constructed the dock?  all damage is
foreseeable but its not appropriate to hold them liable
b. Under Wagon Mound reasonably foreseeable:
i.
What is reasonably foreseeable?
c. Under Polemis Direct and Natural (the approach adopted by the court)
i.
Policy reason for not holding the bridge tender who was late coming on duty
– don’t know why he was late – can’t hold everyone liable for being late
because it may not be their fault
6. Yun –
1. under reasonably foreseeable – could go both ways
2. direct and natural – doesn’t work here
3. in hindsight – it is not highly and extraordinary
4. step-by-step test – it is reasonably foreseeable;
5. goes back to duty vs proximate cause; duty is an issue that goes to the judge;
when it is fact specific it goes to proximate cause and goes to the jury
7. Jenny Jones Case – did the talk show have a duty?
1. A duty not to embarrass someone to the point not to injure someone else, to
screen the people that are going to be on the show, post show counseling.
2. The issue of duty seems to be closely related to the duty of negligence
C. Intervening Cause (Superseding Cause) – subcategory of proximate cause which should only be used
in a small sub category of cases (every intervening cause is a proximate cause)
A. Definitions
1. Intervening Cause – force which takes affect after the D’s negligence (merely a time issue)
and which contributes to that negligence in producing the P’s injury
a. Doesn’t necessarily have a legal consequence
b. Cause in fact
c. Operates later in time
d. If intervening cause, it may supersede the liability
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2. Superceding Cause—an intervening cause that is sufficient to prevent the D’s negligence
from being held to be the proximate cause of the injury
a. Cancels D’s liability because of policy reasons
b. All superseding causes are also intervening causes but only a small number of
intervening causes are also superseding causes
c. Prerequisites:
i. Intervening at is extraordinary under circumstances
ii. Not foreseeable in normal events
iii. Independent of or far removed from D’s acts
d. Usually Intervening cause is considered a superceding one for policy reasons
B. General Rules
1. Except where policy reasons tend to dictate a different result, an intervening cause which is
reasonably foreseeable is not a superseding cause
a. Acts of God: If a natural force i.e. winds is reasonably foreseeable, then it is not a
superceding cause and D is still liable but if the natural occurrence is entirely
unforeseeable, it is usually considered to be a superseding cause
2. If the result of the D’s negligent act is reasonably foreseeable, but it is set off or triggered by
an intervening cause which is itself not reasonably foreseeable, the foreseeable intervening
cause is not a superseding cause because the D created a dangerous situation, the end result of
which (the accident) was reasonably foreseeable
a. Felix Contracting Case: an epileptic crashes into an unprotected work site. D sues
construction company for failing to provide him with a safe workplace. Held
that driver was intervening cause. The causes were unforeseeable in the
particular case but otherwise, the idea that harm could occur from a car entering
the work place was generally foreseeable.
b. Flaming Rat case (footnote) – D is held liable
3. If there is both an unforeseeable intervening cause AND an unforeseeable result, it is a
superseding cause
a. Last Human Wrongdoer Test: intentional malicious act, this person’s culpability is
more so he is liable instead of the first human wrong doer – probability of
superseding cause determination tends to increase with the wrongfulness of the action
of the intervening cause if it is the action of another human being (Watson Case, if
Duerr maliciously threw the match down)
i. The worse the act, the greater the possibility of being held liable
ii. Problems: Sometimes can’t locate that person and D is held liable
iii. Hypo: Keys left in a bull dozer – held liable, negligent in leaving a
destructive vehicle available to anyone who might not know how to
operate it.
b. Suicide: 2 competing principles
i. “irresistible impulse”: recovery is allowed when Ds action caused P to
have an injury which caused an irresistible impulse to commit suicide.
ii. Last human wrongdoer: D is not liable for the intervening, superceding
act of decedent.
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iii. Fuller – A man commits suicide after developing epilepsy from a car
accident. Estate sues negligent driver for wrongful death. Intervening
cause is the suicide (in some states this is a crime)
c. “Rescue Doctrine” – a rescuer is an intervening act, but not a superceding one
(Cardozo “danger invites the rescue”); the original D is liable to the rescuer as
well as long as his attempt was reasonable.
d. Irresistible Impulse Test – intervening cause would no longer be a superseding
cause
C. Examples
1. Intervening cause but not superseding – if reasonably foreseeable, it can include acts of
nature, humans, animals, etc.
2. Principal-Agent Law—way to sue god – if damaged by principal and cannot find principal in
jurisdiction, you can bring action against someone who collects money in the name of the
principal (i.e., agent) (Nice for Banzhaf to rip off Ally McBeal but then dis the show.)
D. Miscellaneous
1. Generally if the P is injured by the same risk that made the D negligent in the first place then
the cause will be an intervening cause and Not a superseding cause
2. Where the D creates a dangerous condition and it is foreseeable that harm could result, there
is liability no matter how the harm occurs (flaming rat case)
3. Where a person leaves his keys in the car and a thief steals it and negligently injures the P
most courts have declined to hold the owner of the car liable unless the car was left in an area
where crime is especially likely to happen
4. Dram Shop Act (Kelly case; NJ holds social host liable) – statutes creating liability for
commercial purveyors of alcoholic beverages who serve to visibly intoxicated people
a. Commercial purveyor is deemed to have better judgment than a social host because
they see drunk people more and generally are not drinking themselves (They can
anticipate such activity)
b. They can afford the risk (insurance, cost of drinks)
c. Subsidiary problem: To what extent should the social host have the duty? Very
few states extend this liability to private social hosts. Who should decide this
issue? Policy issue and who should decide this issue, the court or the legislature?
There is currently nothing. Here the court acted. The social host is not liable to
the full 100% but only liable in the portion of his culpability.
d. Corporate activity: should corporations be liable when they serve alcohol at
Christmas party? Often answer is yes.
5. Product Liability case (McCoy) – strict liability case even in the absence of negligence; if
the intervening cause falls into a category, then you can use the rule (Rescue Doctrine);
there is no superseding cause
6. Public Policy (Enright) – DES case; at common law, no duty to unborn – no separate
identity
a. Problem: Duty to preconception tort? Ex: milk; caesarian damage of a
miscarriage
52
b. Difficult and different cases; court holds that there is no duty; it would be hard to
prove generically
c. Court is worried about the rippling effect and it is limitless
d. Never any torts: Only if drug is never tested and in third generation there are
signified damages to them that are different than others in different generations
INTERVENING CAUSES
Foreseeable – Not Superseding
Unforeseeable – Superseding
1. Foreseeable result of unforeseeable
1. Crime or Intentional Tort of 3rd Party
causeSerious, dangerous condition triggered in
unforeseeable manner (focus on
forseeability of result) Derdiarian—
epileptic drove through barriers negligently
constructed – D is liable
2. Foreseeable Negligence of 3rd Party2. Gross Negligence by 3rd party
D’s negligence must greatly multiply risk
(i.e., hire rapist to work in women’s dorm)
Watson—strike match negligently near gas
3. Serving of Liquor
3. Social Host Serving Alcohol (Kelly)
a. Commercial Bar – Dram Shop Act
 policy reason not to hold the host liable –
 Pros are better able to make better
may impose too much unfair liability
determination and to bear cost of
 Person who gets in wreck supersedes. I.e.,
accident
social host not liability
b. Serving alcohol to minor—person gets in
wreck is not superseding cause
4. Foreseeable Criminal Intervening Act
-- consider dangerousness and probability
5. Suicide by irresistible impulse
6. Second Accident Situation
4. Unforeseeable Criminal or Tortious
Conduct of 3rd Party
-- Last human wrongdoer – the more
wrongful the act, the less foreseeable
(Watson—if match lit intentionally,
criminally, or maliciously)
5. suicide by sane person
6. Highly unusual intervening causes
-- unforeseeable acts of god
7. Attempt to escape danger created by D
8. Rescue Doctrine—original D is
responsible to rescuer – must be
reasonable (Wagner)
9. Aggravation of Injury during treatment
10. Second injury caused by weakened
condition
I.
ECONOMIC ANALYSIS OF TORT SYSTEM
Why is economics helpful to torts, especially product liability?
53
1. Justification of Liability or Fault
2. Transfer of money is the purpose of torts
3. Economic analysis gives us one way to balance interests by assigning values; weigh and balance
competing interests
4. Use to Predict
5. Method of persuasion
6. Economics and law movement is growing
II. Kinds of Accidents
1. Kinds we want to deter  impose liability
2. Kinds we don’t want to deter  no liability imposed (too costly to prevent)
a. There is no benefit from the cost of accidents or the cost of preventing accidents, therefore,
we want to achieve the optimal level of accidents (costs are too great to get rid of accident
entirely)
b. Need to keep the benefit of deterring > cost of deterring
c. Remember if P x L x B, then economics is feasible
III. Problems with deterring some kinds of accidents using economic analysis
1. Complicated Evidence
a. Witnesses, hearsay, inept juries
2. We think we can determine what is and isn’t an acceptable amount of accidents.
3. Transaction Costs
a. Costs of lawyers and the costs of the court
b. Costs create barriers to entry into our legal system (i.e., small claims are kept out of legal system)
4. We don’t wasn’t to deter “economically desirable accidents but who should bear the burden of
the costs?
TRADITIONAL DEFENSES FOR THE MANUFACTURER DEFENDANT
I.
Traditional defenses for the defendant manufacturer
A. Contributory Negligence—conduct by the P – absolute Defense
1. If P is negligent, cause in fact, and proximate cause, then P is contributory negligent and
cannot recover even if D is negligent
a. Started when railroads were invented
b. Judge can rule that there was such as a matter of law and take case away form
the jury
c. Involves an act which contributes to outcome
d. So many states have turned to this
P Not Neg
P Neg
D Not
Neg
P
P
D Neg
D
P
B. Assumption of Risk – analogous to consent (i.e., mental) – Absolute Defense
1. If P has knowledge of risk and voluntarily assumes that risk, P cannot recover
2. Three types of assumption of risk
a. Express Assumption of risk - P expressly takes risk; in many causes you will not
recover
54
b. Implied Assumption of risk – P is aware of the risk but does it anyway
c. D has already done some act which creates the risk and P is aware of the risk and
assumes it anyway
3. Contributory negligence without assumption (P may not know of risk); guy that throws match
in a dangerous environment when he doesn’t know the danger
4. Assumption of risk without contributory negligence (using a car with bad brakes in an
emergency situation—i.e., not negligent)
5. Note: If P does not understand that there is a risk then it is contributory negligence, and
not assumption of risk
C. Comparative Negligence—Limited Defense
1. Compromise to help P – When both the D and the P are negligent, P can recover for the % he
was not negligent (i.e., if P is only 30% negligent, he gets 70% recovery)
2. Looked upon as more fair
3. A limited defense
P Not Neg
P Neg
D Not
Neg
P
P
D Neg
P
P/D
D. Strict liability – No defense
P Neg
D Not
Neg
D
D
D
D
ADVANTAGES AND DISADVANTAGES OF STRICT LIABILITY SYSTEM
I.
Advantages
1. Strong incentive to come up with cheap ways to solve the problem (i.e., reduce accidents
efficiently)
2. Consumer education by manufacturers
3. Encourage safer products to be sold (Dangerous products will have higher prices)
4. Manufacturer can shift the costs to the consumers (users will bear cost of accidents)
5. People will buy safer products if they are forced to bear the cost of accidents
II. Burdens
1. Tremendous burden on manufacturers
2. New products kept from coming out on the market
3. Barriers to entry in the market because of high costs
4. Decreases self-reliance – everyone will depend on the fact that they will be compensated
55
PRODUCTS LIABILITY
I.
Why Courts are moving in the direction of making manufacturers strictly liable:
A. Escape flaws and limitation of the negligence system
1. transaction costs
2. barriers to entry
3. difficulty and expense of proof
4. Uneven bargaining power
B. Hope to create technological means of reducing accidents
1. Better inspection techniques
2. Incorporate safety
C. Economic incentive to reduce accidents by non-technological means
1. Advertising – limited advertising for certain products (i.e., guns, knives)
2. Minimum age requirements
3. Basic Knowledge test
4. Require formal certification and training
II. Benefits Of Imposing Strict Liability On Manufacturers
1. Shift costs from the majority to those who use the product
2. Force the product to justify its usefulness in the market place
3. By imposing all costs on the users, it encourages the users to stop using entirely or reduce the
use
4. Increases cost of dangerously made products as opposed to safe products
5. People shit to less dangerous products
6. Costs of accidents are inherent in products, thus, it’s fair to impose on manufacturers because
they are better able to estimate costs
7. Manufacturers create a demand for a new product
III. Disadvantages
1. Large financial burdens on certain enterprises (hard to get insurance)
2. Keeps new and valuable products of the market (drugs, contraceptives)
3. Creates expensive barriers to entry and thus limits the freedom of choice (lack of
competition)
4. Discourages self-reliance  “someone else is responsible” attitude
5. Unfair to place liability on manufacturer when adults make choice (cigarettes)
6. Manufacturer is liable even when there is no valid public purpose being served
7. Where do you draw the line on who the P is allowed to sue? (slippery slope)
8. Discourages self reliance and encourages victimization
PRODUCT LIABILITY THEORIES
I.
Theories
A.
B.
C.
D.
Negligence
Express Warranty
Implied Warrant
Strict liability
II. Negligence
A. Privity
1. Originally under Winterbottom, privity of contract was necessary to recover
2. McPherson – a car collapses die to defect in wheel. Buick could have discovered the fault
thru reasonable inspection. Got rid of privity requirement and adopted the reasonably
foreseeable standard (Manufacturer liable for any injuries proximately cause by his
negligence) In other words, P can recover from Buick even though he had no contract
56
with him and it established general principle that if product will be unreasonably
dangerous if defective, then he may sue without privy of a contact.
B. Methods of Establishing Negligence
1. Design negligence—affects the entire product line, however, just because there is danger
does not mean there is negligence
2. Manufacturing defect – particular product in a line is defective
3. Negligence in:
a. Testing or inspection – how much? What kind? Frequency?
b. Container or packaging (Tylenol case)
c. Directions for use
d. Failure to warn adequately
e. Failure to anticipate (foresee) unusual uses or application
f. Terms of sale – i.e., underage
g. Promotion and advertising
h. Human factor analysis – duty to handicapped
4. New theory: people get used to things and then they are switched
C. Disadvantages for P (i.e., problems of the negligence system)
1. Difficult to prove by preponderance that D is negligent
a. Time and expense of proof, expert witnesses, learning the D’s business
2. Assumption of risk, contributory negligence, Comparative negligence
3. Note: Negligence is still the bedrock of products liability
D. Advantages of negligence system
1. Allows you to bring negligence evidence in (RIL)
2. Sympathy from the jury – larger rewards
III. Warranty – if the D makes a promise or assertion of facts concerning the product, D is held liable to
that promise
A. Does not depend on the manufacturer’s knowledge or whether the manufacturer knew his
statements were false
1. Action arose as a hybrid between torts and contract
a. Contract statute of limitations applies
b. Contract damages limited but in torts punitive damages are allowed
2. Originally required privity – exceptions were then made for human consumption and intimate
bodily use
B. Express Warranty – express representation that goods have certain qualities (Baxter – P injured in
car claimed to have shatterproof glass. P had a right to a remedy on D’s assertions and can
collect even in the absence of privity of contract)
1. D makes a promissory assertion of the material fact about the product (may be innocent) –
generally has to be more than puffing and there must be reasonable reliance
2. Problem of privity of contract requirement relaxed slowly: first applied to food, then
intimate body use items, then everything
3. The claim was incorrect
4. It creates a tort type damage
5. Must show reliance on the claim
a. There does not need to be privity for the D to be liable
b. Irrelevant if they knew the claim was false or whether they could have done what
they claimed (state of the art defense)
6. Problem: most manufacturers don’t say material facts about the product – limited
C. Implied Warranty – implied from the fact that the product was sold – the implied warranty
attaches to the product and runs with the product no matter who uses it (courts circumvent
privity) (Henningsen—car hits wall. Held that she can collect even though there is no privity of
contract)
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1. Implied warranty of merchantability—warrants that the product is fit for the ordinary purpose
for which the goods are used
2. Implied warranty of fitness for a particular use – when the seller knows the buyer wants the
good for a particular purpose, and the buyer relies on the seller’s judgment to recommend a
suitable product
D. Problems with warranty system
1. Part contract type action – “stop gap measures”
2. U.C.C. limits implied warranties, provides for disclaimers, and requires notice of injury to be
given to the manufacturer
3. Contract Defenses
IV. Strict Liability – D is liable regardless of fault – becomes the “warranty without the excess baggage”
A. Must show that P was injured while using the product in a way it was intended to be used as a
result of a defect in the design and manufacture of which the P was not aware (Greenman v.
Yuba—P injured while using work bench); don’t have to read the brochure; focus on the
product and not the seller; focus on the condition
1. Court was not happy with the contract theory and complications so it brushes aside
issues of privity and notice consequently creating this new theory
2. Extends to all products
B. Restatement—liability for a product in a defective condition which makes it unreasonably
dangerous
C. Causes a basic shift in focus from manufacturer (negligence) to product itself (strict liability)
D. Instead of liking at conduct (negligence) we look at condition of product (strict liability)
E. To establish liability, P must show
1. P was injured while using the product
2. Was used as intended
3. Result of defect in design or manufacture that makes the product unsafe
4. P was not aware of the defect
5. It was defective when it left the factory
F. Types of defects
1. Manufacturing Defect: flaw in a particular product within the line (rare) (Greenman); True
strict liability
a. Particular product is different than all the others in the line and the difference caused
P’s injury
b. Can use inferences and circumstantial evidence (focus is on product and not why)
c. Negligence, precautions, testing, etc. are irrelevant, manufacturer is strictly liable
d. P need not show how it happened
e. Irrelevant that manufacturer was careful
f. Problems: Difficult for laymen to identify what went wrong but can infer
2. Design Defect—something fundamentally wrong with the product line; condemns the entire
line (Prentis)
a. More difficult because you cannot prove by comparison (all the same)
b. Proving is more difficult. Must establish liability by the danger utility test or the
consumer contemplation test
3. Warning defect – failure to adequately warn
G. Tests to apply strict liability to certain products involving design defects – here courts are trying
to impose greater liability than in negligence but less than in strict liability. Two design defects
tests:
1. Danger Utility Test (Risk Utility Test with Imputed Knowledge)
a. It is a product that a reasonable person would put in the stream of commerce if he
knew of the danger?
58
i. If a RPP would not put the D’s product on the market if he knew of the
defects, the D is liable
ii. It reflects the judgment that some products are so dangerous that the risk
of using them outweighs their utility.
iii. This differs from the calculus of risk in negligence because there we only
ask if the defect was reasonably foreseeable at the time.
iv. Imputes knowledge of the manufacturer “if they had known the hindsight
test”
b. This test assumes the manufacturer knew the risks of the product and knowing these
risks, would a RPP have put the product on the market – Factors to consider in
balancing the risk and the utility
i. Usefulness and desirability of the product by the public
ii. Chance it will cause injury and the severity of the injury (safety aspects)
iii. Availability of a substitute product
iv. Manufacturer’s ability to eliminate the unsafe characteristic
v. User’s ability to avoid danger by exercise of care during use
vi. User’s anticipated awareness of the danger of the product
vii. Feasibility of manufacturer spreading loss through insurance/price
c. If the benefits outweigh the risk, then liability should not be imposed
d. This is different than negligence (calculus of risk) where D should have known of
foreseeable risk, here, the D is presumed to know the risk
2. Consumer Contemplation Test – if the product is more dangerous than the ordinary consumer
would have contemplated, the D is held liable; not widely used; if it is foreseeable, same
result as the risk utility test
a. Problems:
i. Consumer is not aware of the problem
ii. Problems may be so obvious that they didn’t even know it was a problem
(i.e. gas tank under seat)
iii. Manufacturers of valuable things would be liable (i.e., drugs)
iv. Difficult and awkward standard to handle (doesn’t differentiate between
purchaser and average user)
v. Could lead to strange results
3. Ordinary Risk Utility Test – virtually the same as the negligence standard; no presumption of
knowledge
H. Strict liability cases
1. Kimwood – P injured when wood was spit out of sanding machine
a. Generally, this case is covered by workers’ compensation and the worker is entitled
to compensation regardless of fault because he was injured on the job.
i. Workers’ comp limits the damages to out of pocket cost only – this case is an
attempt to get around the limitations
b. Repair doctrine – evidence concerning a manufacturer making repairs on a product
after injury occurs is not allowed into court as evidence of the defect because if it was
allowed, no manufacturers would ever repair products
c. This case as well as Yuba could have been brought in negligence
d. Mainly uses a risk utility analysis to determine strict liability.
2. Tampon example: TSS under negligence theory. They are not liable because it was not
foreseeable. Under strict liability theory, they are liable in hindsight.
3. Tylenol safety seal: Same logic applies.
4. Prentis – P using hand forklift fell and was injured – this is an implied warranty case for a
design defect
59
a. If there is a goal to reduce the number of unsafe products, maybe a negligence theory
should be used for design defects
i. Greater incentive for loss prevention
ii. Negligence theory rewards careful manufacturers (i.e., they foresee problems
and fix them)
iii. Negligence doesn’t put the burden on safety oriented manufacturer
b. To win this case P should have shown inexpensive alternative for actions the
manufacturer should have taken (i.e. low battery warning)
5. O’Brien—P injured diving into above-ground pool; claims a failure to warn not to dive and
vinyl bottom
a. Strict liability when the product is defective, and defect existed when the product left
the manufacturer, AND the defect caused injury to a reasonably foreseeable user
b. Court looks to see if there is other alternatives, but even if there are no other
alternatives, it still may not be a safe product for the market (A product can be
defective even if there is no other alternative)
c. State of the art defense: Feasibility; D claims that they used the most
technologically advanced material, part, etc. that they could have.
d. Defense is often allowed but is in no way dispositive. Jury must look at risk
utility and D may still lose if risk outweighs the benefits.
4.Common Examples
A. employer-employee respondiat superior (employer is responsible for what his
employee does)
B. abnormally dangerous activities
C. keeping wild animal as a pet
D. keeping a dog, at least under some statutes
E. violating “no-excuse” statutes
F. auto owner liable for guest negligence (sometimes)
G. workman’s compensation systems
H. black lung liability (tax & compensation system
I.
DEFENSE OF MANUFACTURER
Defenses
A. “State of the Art” defense
1. D tries to show that it is technologically impossible to improve or modify the product in such
a way that the accident would not have happened (i.e., that D used state of the art materials at
the time the product was sold)
a. Economic impossibility is not a state of the art defense
2. This is a persuasive defense but is not conclusive (O’Brien)
B. Economic Feasibility – it can scientifically be done, but for a variety of reasons manufacturer did
not do it (i.e., cost prohibitive); feasibility defense
C. Unavoidably Unsafe Products (Hines—infected blood case. Hemophiliac gets hepatitis from
tainted blood. No strict liability b/c blood company did not hat the technology to detect
tainted blood. Didn’t warn b/c benefits seem to outweigh risks. If held liable then they
would not want to supply this much needed item)
-Major social value but unforeseeable side effects– prescription drugs; benefits so far out way
risks; no strict liability
-Less important value but risks are generally well known – butter, eggs, caffeine, twinkie;
problem with these, people can never prove causation; don’t generally apply tort liability; impose
tax on these
-Less social value and has some risks that hurt others than users – hidden weapons, fireworks,
muscle cars, alcohol
60
1. Products still must be properly made with proper directions and warnings
2. If blood a product or a service?
3. Why not impose strict liability?
a. The products are necessary
b. The product is inherently unsafe and there is not way around it
c. The benefits outweigh the risks
d. The products are valuable despite the possible side effects
e. Drugs can not be completely tested (especially for long term relations)
f. Products less valuable but the risks are well known and occur form overuse (coffee,
alcohol) – there is a causation problem too; it is hard to prove that these items were
the cause if fact
g. There products are more justified than those with no societal value and an
unavoidable danger to others (i.e., handguns)
D. Warnings (Woodhill – drug given to pregnant mothers injured babies. Unforeseeable danger.
Courts generally held imputing knowledge: if manufacturer did not or could not have
known, there is no liability)
1. Must warn about any significant dangers
a. Obvious dangers: old courts said no warning was necessary, new courts say there
may be a duty to warn even though some things appear obvious
b. Woodhill applied a negligence standard and said if there was a failure to warn and the
manufacturer knew or should have known of the danger, then there is liability
2. When is a warning insufficient?
a. When there is an inexpensive and effective alternative?
3. How strong/specific/conspicuous should the warning be? What about a subsequent duty to
warn? What if there are too many warnings?
a. There is only a duty to take reasonable stops to provide warnings for post-sale
products
4. Where is the best place to put the warnings?
5. Is there a subsequent duty to warn if you don’t know of the danger originally then
discover one?
E. Problems of Proof
1. For defective in manufacturer: is it possible to prove that defect was present when it left
the manufacturer.
2. For defective design: must show how it can be done better
3. Friedman—man started car in “drive” and he wrecked it.
a. Hard to prove what was the cause because how do you know what condition the car
was in before it crashed?
b. Here, the car was only 1 and ½ years old, and should not have been having these
problems, thus there was a preponderance of the evidence.
c. Focus on the case was wrong because the attorney should have focused on how the
car could have easily been made safer. (should have been treated as a design defect)
CIGARETTE SPEECH
I.
Generally
A. Before 1965 no warnings at all on cigarettes though we’ve known of the danger since the 40’s
B. Until now warnings were not adequate: no mention of specific disease or magnitude of harm
possibility of addiction, never says causes death
C. Do risk/utility analysis: like Wilks enjoyment relaxation v. death
D. Sales: companies don’t try to prevent sales to kids etc. vending machines
E. Impurities in cigarettes (i.e. asbestos, shallac) not made known
61
II. Supporting Arguments for Cigarette Manufacturers
A. Causation Problem – few cases have proved that smoking was the cause in fact
B. How do you make a safe cigarette – is there a defect?
1. There are warnings on packages
III. Arguments Against Cigarette Manufacturers
A. Economic and Policy Arguments – everyone (non-smokers) bears the cost of smokers through
higher health care costs, taxes, insurance, etc.
B. Warnings on the packages are inadequate
1. No mention of specific disease, magnitude, addiction, and death
2. No warnings prior to 1965, though we’ve known dangers since 1940s
3. Additives (formaldehyde, asbestos, shellac) not made known
C. Risk Utility Analysis – Wilkes article: all that is needed is to prove causation
III. Defenses to actions brought against manufacturers
A. Contributory Negligence/comparative negligence (usually now only look at the comparative
negligence)
B. Assumption of risk – this is a narrow outlet because there must be clear evidence of the risk and
the knowledge of taking the risk
C. Unavoidably Dangerous Product – they cannot be safer except by restriction on use
IV. Plaintiff Arguments
A. Stared smoking as kids when they didn’t know better – defense would be that Ps ratified their
decision by continuing to smoke after they turned 18 – what if they are addicted (not a voluntary
assumption of risk, furthermore, tobacco companies generally deny that there is a risk)
D. Little effort to prevent the sale to children
Note: strict liability is not absolute liability
62
I.
II.
III.
IV.
V.
DEFAMATION
Generally
A. Prosser, a backer of torts said defamation is a confusing issue
B. Prior to NY Times v. Sullivan
1. Originally it was a state law tort
2. Subject to strict liability – truth was the only defense
C. Today, the First Amendment plays a large role in defamation cases
Defamation is different from other torts
A. Other torts generally protect two interests:
1. Protect a personal interest
2. Protect a property interest
B. Defamation is the first relational tort – it protects an individual’s existing relationship with others
Defamation Elements (Plaintiff, Defendant, X)
1. Statement is communicated to X by D about P (i.e., there must be publication),
2. Statement must be understood and believed by x
3. X must understand that the statement refers to P, and
4. Statement must harm the relationship between P and X
What is defamatory?
1. Communications which tend to hold P to contempt/ridicule/hatred
2. At common law
a. It must be more than an opinion unless it implies a fact (i.e., his breath smells like a gin
mill)
i. You’re a jerk, a big ape, fat cow, etc.—not defamatory
b. Must imply a defamatory fact
c. General abuse is not defamatory
d. Thing said must be capable of defense
3. A statement which lowers a person’s esteem in the eyes of at least a substantial minority of the
population (deter a reasonable minority)
4. The statement must be false
5. The defamatory effect can depend on the time and the context it was used in (changes with time)
6. Certain things are automatically defamatory
7. Defamation requires publication: statement must be transmitted to others and be understood.
Forms of Defamation
A. Libel – generally written -- Sight
1. There is a presumption that damage has occurred, thus, there is no need to show damages
2. Photos, signs and most visual things are classified as libel
B. Slander –generally oral -- Hearing
1. P must show damages for slander, except slander per se
2. Slander includes sign language and obscene gestures
3. Radio can be libel or slander depending if it was originally written or not
4. Slander Per Se more like liable in that there is no need to show damages:
a. Imputation of a major crime – A murdered B; originally applied to all crimes, not
just ones of Moral turpitude (character of the act)
b. Imputation of a loathsome disease – X has leprosy
c. Injurious to business/trade/profession – should be reasonably specific to a trade
d. Serious sexual misconduct originally was for calling women unchaste (never
applied to men) Now questionable.
e. Homosexuality is a half category (is this still true?)
C. Libel per se & libel per quod
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1. Libel per quod: when a statement is not defamatory on its face hearer must be aware of
certain extrinsic facts to appreciate the defamatory nature of the statement. P must prove that
the statement was understood in context in order to recover.
2. Libel per se: regular libel: no damages necessary
D. Defamatory statement to a large group (Neiman Marcus—girls are hookers)
1. It is impossible to show damages  a member of a group cannot sue
a. If it is an all-inclusive statement about a small group defamatory
b. If it is about a large group generally not defamatory
c. If it is about a large group  defamatory if it is about their characteristics
2. An indirect reference can be defamation if the P is easily identifiable
a. The test is whether a reasonable person would relate the story to the P
E. Remember – There must be a publication of the defamatory statement
1. Publication – transmitted to others and understood (i.e., not in Swahili)
2. Certain groups have privileges to say what they want in a certain forum – policy: want to
encourage communication:
a. Husband/wife (absolute)
b. Boss/secretary (qualified)
c. Absolute privilege – legislatures on the floor, judge in court, on the bench
d. Qualified privilege – not defamatory if it was not malicious and it was said with a
good faith reasonable belief, or to protect the interest of others, or to protect the
interest of a group; privilege to protect public record
F. Indirect reference can be defamation if person is easily identifiable. (Nude marathon doctor)
VI. Defamation Standards – a balancing of Freedom of Speech v. Right of People not to have Reputation
Destroyed
A. Public Official – NY Times—suits brought by a government official, as a P in his official
capacity. NYT published an ad criticizing police tactics in handling nonviolent civil rights
movement. Head of police (P) felt ad targeted him
1. Must prove – actual malice by clear and convincing evidence
a. A false statement was made
b. About official duties
c. Made with either a knowledge of the falsity or a reckless disregard for the truth
(negligence is not enough). Recklessness is a subjective STD, i.e., did the D have
any knowledge that what he said was false?
2. NYT theories
a. Newspapers should have an absolute privilege to report on public officials
b. Fall back position: there should be a balance between individuals rights and
freedom of speech
3. Supporting arguments:
a. By allowing suits by public officials about government activities, you are allowing
the government to sue the newspaper
b. Suits by government officials were like Alien and sedition acts which were held
unconstitutional.
c. Public officials enjoy absolute privilege or broad qualified privileges not to be sued
for defamation so they should not sue for it
d. Public officials have ready access to the media to refute allegations
i. Damage can be minimized – its better to respond than to limit speech
e. If we impose liability for statements that turn out to be inaccurate, we force
newspapers to self-censorship and inhibition of debate
4. It was held that the suits brought by public officials about statement made about them
are only defamation if there is actual malice
a. Definition of actual malice: knowledge of falsity and reckless disregard of falsity
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B. Public figures – those not elected to office but make themselves voluntarily thrown into public
controversy Comparison to public officials
a. Similarities: Ready access to media and there is a strong public interest in knowing
about these people
b. Differences: public figure suit is not one representing the government and public
figure has no privilege to speak about others
2. NY Times standard applies – P must prove by clear and convincing evidence both the falsity
of the statement and that it is made with Actual Malice (i.e., defendant’s knowledge of the
falsity or reckless disregard for the truth). An impersonal account cannot constitute
defamation.
C. Private Individuals (3rd Party Individuals) – These people end up in the limelight even though
they don’t voluntarily thrust themselves into the public (Gertz, accused of being a communist)
(could also be heroes, criminal suspects, etc.)
1. The only argument that applies is the public interest argument (no government, no ready
access, and no privileges)
2. States can set their own standards
a. There is no strict liability but there must be at least ordinary negligence
b. The statement must be defamatory on its face or give notice of its defamatory nature
c. Recovery is limited to Actual Damages (financial or other real damage)
i. Individual can only recover humiliation and pecuniary loss damages.
ii. For punitive damages, there must be actual malice (NY Times standard of
proof)
d. If not of public interest and not in the mass media (non media private individuals),
there only must be negligence (Dunn, false credit report case) – only need negligence
for liability for actual & punitive damages
e. Burden of proving the falsity is on the P
3. Time v. Firestone: P sues Time for calling her an adulteress. She is well known but court
determines that private individual standards apply to her b/c a public figure must
deliberately seek limelight.
D. Purposes of defamation
1. Neutral forum to determine the truth or falsity of the statements
2. Provides compensation for actual damages
3. Desire to prevent and deter outrageous conduct
E. Statement of Opinion
1. Up to the jury
2.Court says that they do not want to carve out a new test
3. Expressions of opinion that imply an assertion of objective fact may be the basis of a libel
action (Milkovich, wrestling coach)
PRIVACY
I. Introduction – an old legal concept from the Magna Carta (man’s home is his castle; everyone has the
right to be left alone)
A. Privacy was not recognized as a tort until this century and must of the law comes from the
constitution
II. Four Branches
A. Appropriation of P’s likeness and/or name, akin to a property right tort without permission of
commercial or non commercial use—Flake – a newspaper put a picture of a girl in a strip show
ad by mistake – Defamation was not applicable because the ad was not believed
1. A person has an intangible property right in their name and face and it cannot be used for
commercial or other purposes without compensation
a. No authorized use for commercial purposes, regardless of truth
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B.
C.
D.
E.
F.
2. Reasons for the tort
a. Creates mortifying noteriety
b. Mortifying notoriety
c. Similar to a copyright – if a person creates something, they are entitled to certain
rights (but what here was created)
d. There is value in your name (inherent right) even without reputation
e. Tort value: deterrence of wrongful conduct? Not really because it was an accident.
Compensation? Not really
Intrusion into private affairs (Pearson I)– intrusion into the solitude or seclusion of a person or
personal matters
1. Must be highly offensive to a reasonable person (i.e., physical intrusion, hidden
microphones/cameras/records held by a third party)
2. Dodd – Senator’s aids give materials to newspaper. No intrusion since he had a political
career and they may have a public interest to expose a government official
3. Motive is relevant: i.e. taking a strand of hair from your seat to prove paternity
4. Physical invasion is not necessary
5. No publication is necessary
6. May be negligent—does not have to be intentional
7. Examples: videotaping, bugging, spying; Not observing P in a public place
Disclosure of private facts (Pearson II and Cox)—public disclosure of private facts about P
1. Disclosure of non-public information in the mass media
2. Does not have to be done intentionally
3. That is not of a legitimate concern to the public, and
4. Is highly offensive to a reasonable person
a. Involves balancing the interest of the person with the newsworthiness. (If its
newsworthy, truth is a defense.)
b. The more famous the person, the more of interest to the public it is
i. Legitimate public concern is a defense (i.e., newsworthiness)
c. Truthful information obtained lawfully is Not punishable unless there is a higher state
interest (Cox—reporting rape victim’s name; Held that it is not wrongful disclosure
when the facts are on public record.)
False Light concern with reputation - of putting P in objectionable false light in public eye,
akin to defamation (Cantrell – a victim’s family from a bridge collapse)—invasion of privacy
important in states limiting defamation
1. Involves a publication which even if it is newsworthy and technically correct, it has the effect
of holding someone up to a false light (i.e., pity and ridicule)—it need Not be defamatory
2. It must be highly offensive to a reasonable prudent person
3. If it is a newsworthy person malice is required
4. Truth is not a defense
5. Similar to defamation but must be done intentionally (defamation only negligence) and
don’t have to prove anyone believed it
6. Fills gaps left by defamation
7. Subject to ridicule is sufficient
Malice
1. Actual malice (state of mind)—focus is on the state of mind; the issuance of a publication
with knowledge of the falsity of the statement or with reckless disregard as to its truth
2. Common law malice - It is the standard for punitive damages—focus on the D’s attitude (i.e.,
personal ill will or bad feelings toward the P)
First amendment challenges – Not all speech is protected
1. Public individuals—actual malice is needed
2. Private individuals—negligence is needed
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3. Remember that “privacy” is not mentioned in the constitution
G. Intentional Infliction of Emotional Distress (Hustler Magazine v. Falwell—not defamatory because
nobody believed it)
1. For a public figure, there must be actual malice
2. Run into potential conflict with harassment
I.
NO FAULT INSURANCE
History leading up to no fault
A. Tort system began as strict liability and gradually moved to a system based on culpability—Why
was there a shift?
1. Industrial Revolution came about—needed to protect new industry
2. Focus on Individual Justice – people were supposed to be able to take care of themselves
3. Ability to handle the culpability issue in the complex judicial system
B. Still retained strict liability in certain areas
1. Workers’ Compensation
a. Initially, it was difficult for worker to recover for work-related injury because he had
to prove negligence and overcome the following:
i. Assumption of risk
ii. Fellow servant rule—Employer was not liable for negligence of employee’s
fellow servant—in a master-servant relationship, servant was closer to the
problem than the master
iii. Contributory negligence—worker was required to be careful
b. Present Workers’ Comp system (Rationale is Public Policy)
i. Strict liability for injuries “arising out of” the employment (this is all the
worker has to prove—i.e., no need to prove negligence)
ii. Compulsory insurance – employer must have money to pay claim
iii. Schedule of compensation (barred from bringing an action in tort against the
employer)
1. Only covers real, economic damage and loss of wage (i.e., out of
pocket costs)
2. Does not cover pain and suffering
iv. Commission or administrative body oversees process (Not courts)
v. Strict limitation on Attorney’s fees
2. Ownership of automobile
a. Generally: The 3rd party is liable and not the owner but because that person in
many cases does not have the money for damages (unfair), the P has to sue the
owner
b. Owner is strictly liable (vicarious liability) for anyone driving with his permission
because he is the one with the insurance, and originated the danger (by lending it out)
i. Because it is foreseeable
c. Problems with auto liability tort system (1968 figures)
i. Half of the recovery awards go to attorney fees (1967 figures)
ii. Overpayment to those who need it least and vice versa
iii. Only covers about 15% of out of pocket costs
iv. Delay and court backlog (ins. Co. attempt to delay for settlement)
v. Poor effect on law – problems of proof and perjury
vi. Basic principles of tort (compensation and deterrence) are not being served –
general tort system does not work well in auto industry
1. Although, an expensive form of deterrent
3. Strict liability for Products
4. Vaccine Clinic
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5. Advantages to the system as it is now (With fault): social functions served
a. Compensation
b. Deterrence: liability leads to innovations at least on the institutional level,
however, it doesn’t help the individuals
II. No Fault Insurance
A. Generally
1. Each driver insures himself and he recovers from his own insurance co.
2. Eliminates negligence suits against other drivers (automatic compensation by your own
insurance)
3. Compensation is limited to actual economic loss
4. Prohibits dual recovery (recovery from medical insurance and laws)
B. Why we want to leave the tort system available for certain situations? (Why we haven’t we
switched to pure no fault?)
1. No fault is unfair in very serious situations – tort system allowed
2. Constitutional restrictions
3. Attachment to fault principle
4. Pressure from groups with economic interest (i.e., lawyers)
C. Advantages of the no fault system
1. Less hassle with the insurance company
2. Shorter delay in recovery, fewer cases, etc.
3. More money goes to victim
4. Lower premiums
D. Disadvantages of no fault
1. Requires everyone to have insurance of a certain type and amount
2. Leads to exaggerated claims
3. Why solely have it for automobiles? Why not for heart attacks?
4. Shouldn’t people be able to recover for pain and suffering (no fault only gives out of pocket);
It keeps the money down but P gets shafted
5. Lawyers help get larger recovery – jury is better indicator of what is fair
6. Effect on legal system – no incentive to discovery defects/improve safety
7. Lawyers are less able to work cheaper for lower and middle class
8. Everyone has a fundamental right to bring suit: jury trial is most fair
E. In essence, no fault is the flip side of strict liability
1. Both compensate without showing fault
2. Both attempt to spread the costs to those who can afford it
F. Application of no fault
1. 50% of states have no fault but they also have insurance based on fault which is not a good
indication of no fault’s effectiveness (many states have some form of no fault)
2. When P can not show negligence, he’ll use no fault
3. Mostly in addition to regular insurance: this makes rates high
4. Proponents of no fault say we aren’t using it right. Threshold is too low and it needs to
be used alone.
G. Two competing philosophies
1. Conservative (Autonomy): individuals should protect themselves
2. Liberal (Interventionist): Government has a responsibility to protect
I.
MISUSE OF LEGAL PROCESS
Types of Misuse
A. Malicious prosecution – abuse in manner of bringing suit
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B. Abuse of Process – comes into play after suit is filed (using process improperly)
II. Background
A. Tort – any civil wrong other than a breach of contract for which the law provides a remedy
B. Problem: Anyone can file a lawsuit and the filing starts an elaborate process
1. Expense of hiring a lawyer
2. Effect on D’s credit rating, ability to finance, increase in insurance premium
3. Other powers created by filing (search, discovery, testimony, examination)
a. Basically allows the P to harass the D
C. Why is an attorney given these awesome powers?
1. He provides a valuable and important service necessary in good faith situations
III. Malicious Prosecution – wrongfully filing of a civil or criminal suit without proper cause and for
improper purposes (hostility, ill will, etc.) (Freedman)
A. Elements
1. Prior proceeding terminated in favor of the accused (P in this suit)
2. Absence of probable cause (what is probable cause?)
3. Malice (may be presumed from lack of probable cause); Improper purpose or malice by the
D
4. Institute or continuation of criminal (civil) proceedings against the P
5. Damages to P resulting from the action
B. Problem is that sometimes legitimate lawsuits require novel ideas that look frivolous on their face
C. Attorney does not have a duty of care to the opposing party in bringing a suit because it would
create a conflict of interest
D. American System v. English System
1. American
a. Generally each side pays their own legal fees
i. Small cases won’t be brought—only most seriously injured get represented
ii. Test cases are not discouraged
2. English
a. Losing party pays winner’s reasonable legal fees
i. Few novel suits are brought and small suits result in more for winner
(because the legal cost gets paid for too) – however most attorneys will only
take cases they can win
b. Malicious prosecution in England Requires
i. Damage to fame, reputation, person, liberty, or property (some American
jurisdictions follow these requirements)
3. A way around the problem
a. Permit the trial judge to award damages (if there is malice) immediately following
the trial rather than in a separate action
i. But, judge may be biased if you already pissed him off at trial
III. Abuse of Process
A. Use of a legal process (after filing) for improper purposes
1. Abuse although initial action was meritorious (i.e., excessive, unreasonable discovery
demands, seizing assets, etc.)
2. Balance of innovative legal theories v. abuse of process
3. Need NOT show improper institution of proceeding
4. Need NOT show lack of probable cause
5. MUST show that D engaged in a willful act in the use of legal process (eg subpoenas,
attachments, etc.) not proper in regular conduct of case AND
6. Did so with an ulterior and/or improper purpose (e.g., delay)
B. Rule 11 of FRCP
1. Deter filing of unnecessary cases and motions
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I.
TORTS IMPLIED FROM LEGISLATIVE PROVISIONS (Statutes)
Issue – no negligence applies, thus the question is whether the statute allows a suit where normally
would be no suit
A. Legislature can take three actions
3. Legislature has the power to create new torts
4. Legislature can modify existing torts
5. Legislature can pass criminal or other statutes without creating torts
a. Problem is that when the legislature passes the statute, it doesn’t tell what the intent
was behind the statute (did they want a tort?)
B. State v. Federal Government
1. Federal Government
a. Can imply a new tort from existing statute (when appropriate)
b. No federal common law  Cannot create a new cause of action
i.
Examples:
 class action suit (several parties brought together to save resources) –
advantage is tremendous leverage
 Stockholder derivative action – shareholder sues corporation on behalf of
the other shareholders (Transamerica)
d. Cort v. Ash – just because Congress creates a statute, a violation does not
automatically create liability, must look at that following factors: (Does a Statute
Create a New Tort (Private Right of Action)?)
i.
People protected – small class or specific people?
ii.
Do we want to encourage or discourage a certain activity?
iii.
Did legislature expressly prohibit a private remedy?
iv.
Similar statutes in other jurisdictions?
v.
Does it comport with overall legislative scheme?
vi.
Are there already sufficient state laws to handle the situation?
vii.
How practical is it? Can you show damages? Cause? Are there other
mechanisms?
e. Private Attorney General Concept—provisions allowing individuals to bring private
lawsuits against a statute
2. State Government (Common Law)
a. Can imply a new tort from existing statute
b. Can create a new tort (i.e., privacy, IISED, wrongful life and wrongful birth etc.)
c. Consider factors above in creating a new tort
C. Bivens Tort for violation of the U.S. Constitution
1. Implies a cause of action for violation of constitutional rights
a. Constitution directly applies to federal and state government, not to private
institutions
b. Until this case, you could not sue the government itself nor its agents because they
had sovereign immunity (unless they were state agents); now it waives it
c. Bivens action—in certain situations, individuals can take action against federal
officers for violations of the Constitution; in other words, it is an action for
unconstitutional acts for federal people
d. This is a reminder that anyone can make new law
e. Many states have adopted similar provisions
f. Though congress exempts self from lots of statutes, it cannot do so from
constitution
D. RICO – one must participate in the operation or management of the enterprise itself to be
subject to liability under this provision.
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MISCELLANEOUS TORTS
I. Prima Facie Intentional Torts – also considered the “generalized intentional tort” (similar to the
negligence concept but applied to intentional torts)
A. Elements
1. Intentional lawful act by the D (purpose or SCK)
2. Intent to cause injury to the P
3. Injury to the P
4. Absence or insufficiency of justification
B. When can we have this tort? You can always try.
C. Great for P: open ended
D. Dangerous for D
E. For every wrong there is a remedy
F. Restatement: if one injures another and the conduct is culpable and not justified, the person
is subject to liability
II. Contract Breaches as Torts
A. Refusal to deal in good faith (Critsci) – widow and her insurance company disagree on whether to
go to court – they go and lose and now the widow owes $90,000 as opposed to zero that would
have been settled upon had they not gone to court; Every contract is an implied covenant of
good faith and fair dealing. It is based on relationship of trust and reliance.
1. Damages are generally larger in tort (b/c you can collect for emotional and punitive) and
there is generally a longer statute of limitations
2. Generally, contract damages are limited to that which were foreseeable at the time of the
contract
3. When a party to a contract denies that the existence of a contract when one does in fact exist,
there is a cause of action for wrongful denial
III. Civil Conspiracy (Margolin)
1. Where by the force of numbers, the Ds cooperate together and have a power of coercion on
the P that they don’t have individually, or
2. Exceptional circumstances where the group has more effect than an individual
i. Factors to consider:
1. motive
2. excuse
3. harm caused
4. relationship of actors
IV. Wrongful Termination of Employment – no longer employment at will
A. Retalitory Discharge—Parties cannot have an agreement that contravenes public policy
B. Theories of suit
1. Public policy (that which is right and just and affects citizens) is to protect individuals and
society
2. Every employment contract has an implied covenant of good faith and fair dealing
3. Due Process- generally only applies to government issues but may be applied in certain
employment situations where the employee feels that he is entitled to certain rights
V. Limited Duty Torts – where the D owes less than reasonable degree of care
A. Negligent infliction of mental anguish – less culpable than IISED
1. Example—negligent misdiagnosis causes fear and emotional distress
2. Smaller scope of liability than IISED—limits on this tort:
a. Impact rule – some type of impact/contact to prevent faking and put the D on notice
i. Basically abandoned but most states require that there be more than the
normal disturbance/emotional distress than expected under the circumstances
b. Physical Manifestations rule – also abandoned – do not have to prove damages
c. Zone of Danger – P must be in the zone of danger
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i. Exceptions: negligent telegram of another’s death or negligent interference
with a dead body
B. Wife’s Duty to Warn – (J.S. and M.S v. R.T.H) her duty to tell that he was sexually assaulting
neighbor’s kids
C. Psychiatrist’s Duty to Warn
1. Common Law: No duty to warn
2. Courts have changed this to impose duty because the D has a special relationship with the
victim and the attacker (Tarasoff)
a. Advantage: saving of life by warning of danger
b. Disadvantages:
i. Distinguishing if the threat is serious
ii. Problem of false warnings (may upset things)
iii. Interferences with the special privileged communication between the doctor
and patient
D. Limited Duty v. Proximate Cause
1. Proximate cause may lead to different results in different cases because issues are decided by
juries and generally have little precedential value
2. Duty provides fairness, predictability, and certainty for those areas where situations with
similar characteristics arise
a. Generally applies when people have different relationships with different types of
people
VI. Rights of or Relating to unborn children
A. Fetal injuries due to someone’s negligence (i.e., car wreck)
1. Common Law: there was no tort and thus no recovery for the infant
a. Rationale for common law:
i. How can there be a duty to someone not yet alive
ii. Mother and fetus were considered one—not separate entities
iii. Proof of causation was difficult
iv. Damages were speculative
2. 1946 Breakthrough: Duty to Fetus
a. Injury is recoverable if the fetus was eventually born, AND
b. If the fetus was viable at the time of the injury
3. Problems of suing for still born (majority says still born cannot maintain an action)
a. Survival—did the person exist?
b. Wrongful death? (Applies to a person)
4. Philosophical Questions
a. If you deny recovery, you allow a wrong without a remedy (person who lives for a
short time can recover, but a still born cannot)
b. Unmerited bounty to the parents?
i. Still born gets no money
ii. If it was born it could use the money for medical care
5. Controversial Issues
a. Does the mother have an obligation to mitigate damages (i.e., abortion)
b. Fetal rights movement
i. Anti-abortion—fetus is an independent entity with rights
ii. Pro-Choice—doesn’t recognize life – woman has a right to terminate the
pregnancy, but if chooses not to, the fetus enjoys protection from injury
c. Is there a duty by the doctor? To the mother? To the fetus?
d. What about pre-conception harm to the male or female?
B. Negligence in Diagnosis
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1. Wrongful Birth Action—brought by parents where they were not advised tin time that they
were likely to give birth to deformed child
a. Receive special and general damages (emotional distress/extra medical)
2. Wrongful Life Action—brought by child
a. Receive special damages (additional medical care and expenses)
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