Torts- Maatman
1
I. Intentional Torts
1. Battery “(A) he acts intending to cause a harmful or offensive contact with the person of the other or
a third person, or and imminent apprehension of such a contact, and (B) a harmful or offensive
contact with the person of the other directly or indirectly results[intent, contact(physical), harmful or
offensive, unconsented]
a. Offensive Contact is said to occur when the contact “offends a reasonable sense of personal
dignity.”- “disagreeable or nauseating or painful because of outrage to taste and sensibilities
or affronting insultingness.” Leichtman v. WLW Jacor Communications, Inc
1. “particulate matter” has the physical properties capable of making contact
b. Intent-acting for the purpose (to cause the contact) or with substantial certainty (contact will
occur)- all intentional torts
c. Dual Intent- intend the contact and intend it to be harmful or offensive-majority only for
battery
d. “A muscular reaction is always an act unless it is a purely reflexive reaction in which the
mind and will have no share” sec 2 of restatement
e. An insane person may have an intent to invade the interests of another, even though his
reasons and motives for forming that intention may be entirely irrational
2. Assault
a. elements1. one acts
2. intending to cause a harmful or offensive contact
3. with the person of the other or
4. an imminent apprehension of such contact (battery) (don’t need touching- touching of
the mind)
b. Imminent- no significant delay
c. Assault and Battery roll together
3. Intentional Infliction of Emotional Distress
a. -elements
1. intentional or recklessly
a. if intent was to motivate but D ends with ED not enough must intend to inflict
2. extreme and outrageous- factors to consider- context, conduct regular?, severity,
relationship (abuse of power), knowledge of vulnerability
3. cause ED
4. ED must be severe
5. in determining whether certain conduct is extreme and outrageous courts consider the
context and the relationship between the parties
6. some courts have held that status as an employee should entitle to greater degree of
protection from insult and outrage by a supervisor with authority over him than if he
were a stranger- based on the rationale that the workplace envir provides a captive
victim and the opportunity for prolonged abuse
7. other court including TX courts have adopted a strict approach relying on the fact that
to properly, manage its business an employer must be able to supervise, review,
criticize, demote, transfer, and discipline employees(Supreme Court agrees with)
8. TX courts says to establish a COA for intentional infliction of ED in the workplace an
employee must prove the existence of some conduct that brings the dispute outside
the scope of an ordinary employment dispute and into the realm of extreme and
outrageous conduct
9. Outrageous- 1. repeated or carried out over a period of time or 2. an abuse of power
on the one hand or abuse of a person known to be especially vulnerable
10. -the Restatement –“where such conduct is directed at a third party, the actor is subject
to liability if he intentionally or recklessly causes severe ED
Torts- Maatman
2
a. to a member of such person’s immediate family who is present at the time,
whether or not such distress results in bodily harm, or
b. to any other person who is present at the time, is such distress results in
bodily harm” (limited transferred intent rule)
11. Ordinarily recovery in such cases is limited to P who are not only present at time but
are known by the D to be present so that the mental effect can reasonably be
anticipated by the D
4. False Imprisonmenta. Elements
1. intentionally without lawful privilege and
2. confines another against his consent within a
3. limited area(bounds set by actor)for any appreciable amount of time, however short
4. conscious of confinement or harmed by it
b. Transferred intent (third party is injured, imprisoned and assault occurs liable)
1. Tortfeasor intends a tort on one person but commits a tort on another
2. A tortfeasor intends one tort but accomplishes another
c. Extended liability- closely related ^
1. ex: hand buzzer one says don’t buzz me – when he zaps her he intends a battery but
when she has neurological reaction liable for what occurred
II. Torts to Property
1. Trespass to Land
a. Elements
1. intentional
2. entry upon
3. land of another
b. Still liable if think its yours- acting for purpose of being there
c. For one situation intentional entry is not required but if then you refuse to leave the refusal is
the trespass
d. Intent includes either purpose to enter or substantial certainty that entry will take place- entry
is by yourself or an object
e. Land includes airspace directly above your land and feet below ground
f. In trespassory torts the D is liable for damages even if no physical or economic harm is done
– if physical harm is done liable for difference in value of property from before harm to now
g. Punitive damages may be awarded if the trespass is deliberate or malicious
h. The trespasser is liable for damages inflicted even if he never intended harm or could foresee
it(extended liability rule)
i. Limiting extended liability- the extended damages for which the trespasser is liable are those
that are somehow related to security of possession
j. Trespass is theoretically an invasion of one’s right to possession, not to ownership (leased
property can still sue)
2. Conversion of Chattels
a. Intentional deprivation of property of an owner- act like you own chattel
b. Stealing is a conversion the person who steals is the converter- “converted the property to his
own use” by exercising substantial “dominion” over prop of another- can sue for value of
property at time of stealing- earlier conversion was known as Trover
c. D must intend to exercise substantial dominion over the chattel- there is no requirement that
the D be conscious of wrongdoing
d. since a finding of conversion means the D pays the full value of chattel the American law
Institute concluded that the interference should be serious enough to justify imposing such
liability and that a number of factors were important including:
1. extent and duration of control
Torts- Maatman
3
2. the D intent to assert a right to the prop
3. the D good faith (maybe thought it was yours took it realized it gave it back- would
prob be Trespass to Chattels)
4. the harm done and
5. expense or inconvenience caused
e. serial conversion if D steals a watch then sells it; the P can sue both or either though he could
collect only once
1. the uniform commercial code- a comprehensive statute enacted in almost all states
regulates many commercial dealings
2. P might instead of seeking market value of chattel seek “replevin” or “claim and
delivery” an actual return of the chattel itself
3. Trespass to Chattels
a. Involves some intermeddling with a chattel of another person, and at times even,
dispossession, but something short of a conversion- matter of degree
b. Liability is imposed only of the possessor of the chattel suffers(elements must have one)
1. dispossession or
2. lost use, or
3. if the chattel or the possessor is harmed
c. Measure of damages- Liability is based on actual damage not on the market
value(Conversion)
III. Affirmative Defenses to Intentional Torts
1. Self-Defense
a. One is privileged to use reasonable force to defend against harmful or offensive bodily
contact and against confinement- depends on apparent necessity of self-defense not on actual
reality
b. proportionality - the D privilege extends only so far as reasonably necessary to prevent the
harm and if the harm threatened is not itself death or serious bodily harm, then the D may not
use force likely to cause death or serious bodily harm
c. the D is not required to retreat or otherwise avoid the need for self-defense- when the D is
sexually attacked or attacked by force likely to cause death or serious bodily harm she is
privileged to respond with such deadly force of her own so long as it is reasonable
d. Excessive force- the privilege covers only reasonable force- any excessive is unprivileged
and the D is liable for it- this is a matter of degree and depends very much on the facts of
each case
e. Provocation is not sufficient to raise the self defense privilege
f. this privilege permits one to resist false imprisonment as well as assaults and batteries
g. D may be privileged to put the P in apprehension of a harmful or offensive bodily contact
even though the contact itself would not be privileged
2. Defense of Third Persons
a. In general one may defend others on the same basis that he may defend himself
3. Arrest and Detention
a. Exception to the rule- any prop owner, including a storekeeper, has a common law privilege
to detain against his will any person he believes has tortiously taken his prop
b. this can be exercised only to prevent theft or to recapture prop and does not extend to
detention for the purpose of punishment- this common law right is exercised at the
shopkeeper’s peril however and if the person detained does not unlawfully have any of the
arrestor’s prop in his possession the arrester is liable for false imprisonment (Maryland
opinion is a minority opinion Restatement is the majority opinion)
c. in Md a private person has only authority to arrest without a warrant only when
1. there is a felony being committed in his presence, and the arrester has reasonable
ground (prob cause) to believe the person he arrests has committed it, or
Torts- Maatman
IV.
V.
VI.
VII.
4
2. a misdemeanor is being committed in the presence or view of the arrester which
amounts to a breach of their peace.
d. Restatement 2d privilege to detain when
1. Reasonably believe
2. Reasonable investigation
3. Time necessary
e. Police and private persons are privileged to make an arrest under warrant that appears to be
authorized and on the basis of “probable cause” or rescannable grounds to believe that a
felony has been committed by the arrested person- if the private person was mistaken the
privilege would afford no protection
f. Proportionality Principle
1. -Proportionality is central to the defenses of assault and battery. In defense of one’s
self, of another person, or of one’s land or property, an actor may use force
proportionate to
a. The interest the actor is protecting and
b. The injury or harm threatened by the other – the law values the interest in
human life more highly than the interest in personal prop – a general approach
to this issue first requires establishing how much force may be used and then
deciding whether the actual force used was greater than the allowable
maximum
g. (Exception)However, resort to dangerous weapons to repel an attack may be justifiable in
certain cases when the fear of danger of the person attacked in genuine(subjective test) and
founded on facts likely to produce similar emotions in reasonable men(objective test)
Defense and Repossession of Property
1. The force used must be of a kind appropriate to the defense of the prop
2. since the law has always placed a higher value upon human safety than upon mere rights in prop, it
is the accepted rule that there is no privilege to use any force calculated to cause death or serious
injury where only the prop is threatened. The D may use the force reasonably necessary to overcome
resistance and expel the intruder, and if in the process his own safety is threatened, he may defend
himself, even kill if necessary but in the first instance a mere trespass does not justify such an act.”
Brown v Martinez
Discipline
1. some states refuse to permit children to sue their parents for torts- where they are parents enjoy a
privilege to discipline children and to use force and confinement to do so- they may use reasonable
force as they reasonably believe necessary
2. people who are in charge of a child not their own also enjoy a similar privilege
3. Military discipline is now almost entirely governed by the Uniform Code of Military Justice and
dealt with within the military
Observing Privileges
1. Many common law privileges have the effect of resolving the issues in the case into matters of
reasonableness and degree
2. In self-defense the issue is usually whether the D reasonably believed that defense was necessary
and then whether he used the amount of force reasonable to cope with the apparent threat
3. in common law actions there are cases in which “degree is not important and other cases in which,
because the issue of privilege is injected, degree becomes quite significant
Consent
1. this is an affirmative defense to all intentional torts
2. Legal requirements
a. Actual- subjectively consents; explicit, clear, words
b. Apparent- implied- conduct (can include words(less explicit than actual)) that is reasonably
understood by another as consent
Torts- Maatman
5
3. either would bar recovery of damages
4. in battery cases, consent or apparent consent conveys the idea that a touching is not offensive, so one
element of battery would be missing
5. consent is not effective if a person lacks capacity to give consent
6. Incapacity of an adult P renders her consent ineffective only if her condition substantially impairs
her capacity to understand and weigh the harm and risks of harm against the benefits flowing from
the proposed conduct
7. the P’s incapacity does not render her consent ineffective unless the D has knowledge of the
incapacity
8. Incapacity of an adult is usually established only by showing that the adult could not manage his
own affairs, or in consent cases, that he did not understand the nature and character of his act.- if find
this, consent can not bar from damages
9. Our notion of consent must, therefore, be modified to appreciate the power relationships between the
parties.
10. Restatement (2d) Sec 892 Consent
a. Consent to conduct is effective for all consequences of conduct
b. consent….by substantial mistake concerning nature of invasion… and mistake is known or
induced by misrepresentation not equal to effective consent
11. Nature of invasion- when it’s a public place open to anyone (Desnick) misrepresenting purpose is
fine but when it’s a meter reader misrepresented to enter private home nature is worse- food critic
does not have to announce self in restaurant- there is a line not a bright one
12. be careful to distinguish ‘medical battery’ cases from ‘informed consent’ cases, informed consent are
a species of negligence-based medical malpractice where a patient expresses consent to a named
operation or procedure, but is not informed adequately about its nature or material risksa. battery claims involving lack of consent for ex occur when the dr fails to operate within the
limits of the patient’s consent
b. Informed consent claims for ex those involving the dr’s obligation to provide information
must be brought as negligence actions
c. substituted consent is almost a sub-specialty itself- when someone is appointed as guardian
for a person who is incompetent to give or withhold consent , should the guardian make the
decision a. in the best interest of the patient or b. on the basis of what the patient herself
would do is she were competent
d. people who are not able to manage their own affairs are usually legally incompetent
e. it is generally assumed that minors may consent to a number of touchings appropriate to their
age
f. right to an abortion extends to minor women consenting as well
g. incapacity to an adult’s consent to intercourse is effective to preclude any claim from battery
so long as the consent was not secured by fraud or some other tort- but statute impose
criminal liability for sexual conduct with a minor where consent is no issue
h. some courts have said that the consent to illegal acts is ineffective-restatement rejects this
saying consent is generally effective
i. P can revoke her consent at any time by communicating her revocation to the D
13. where the D knows he has a STD but neither warns nor provides protection several cases have
imposed liability
14. Restatement Sec 892A(2)(b) provides for consent to be effective, it must be to the particular
conduct, or substantially the same conduct as that in which the D engages
15. if the P manifests consent only because she relies upon the D misrepresentation or her own mistake
of facts there is no consent at all- when it is the P mistake it must be about the “nature” of the
transaction consented to
VIII. Public and Private Necessity Privilege
Torts- Maatman
6
1. common law adopts the principles of natural law and places the justification of an act otherwise
tortious precisely on the same ground of necessity
2. in such cases the indiv rights of prop give way to the higher laws of impending necessity
3. ordinary rules regulating prop were suspended by forces beyond human control
4. Protects from trespass but not damages
IX. Negligence
1. Elements for COA
a. Duty, Breach, Actual Harm, Cause in Fact, Proximate Cause
2. Negligence is not defined by naming specific forbidden acts- but may be any conduct that creates an
unreasonable risk of harm to others- it is actionable as a tort when that risk comes to fruition in
actual harm
3. Not all risk is negligence!!
4. all courts require the P to sustain the burden of proving each element
5. if P fails to meet the burden of any one P cannot recover
6. Duty
a. General Duty of Care- The duty owed by all people generally is to exercise the care that
would be exercised by a reasonable and prudent person under the same or similar
circumstances to avoid or minimize risk of harm to others- RPPSSC
b. RPP- The reasonable person exercises care only about the kinds of harm that are foreseeable
to reasonable people and risks that are sufficiently great to require precaution
c. Neg per se- statute defines standard of care
1. Negligence per se doctrine enables the courts to mold standards of conduct in penal
statutes into rules of civil liability –
a. enables the courts to use a penal statute to define a reasonably prudent
person’s standard of care
2.
a. Whether the P belongs to the class of persons the statute was designed to
protect and
b. whether the P’s injury is of the type that the statute was designed to protect
court also consider- Rains v. Bend of the River
3. 5- Bundle of Policy considerations
a. whether the statute source of the D’s duty to the P
b. whether the statute clearly defines the prohibited or required conduct
c. whether the statute would impose liability without fault
d. whether invoking the negligence per se doctrine would result in damage
awards disproportionate to the statutory violation
e. whether the P’s injury is a direct or indirect result of the violation of the
statute
d. Restatement § 288A -an excused violation of a legislative enactment is not neg If falls in one
of Five non-exclusive categories: pg 145 ex
1. the violation is reasonable because of actor’s incapacity(blind, mental)
2. he neither knows nor should know of the occasion for compliance(night driver tail
light out)
3. he is unable after reasonable diligence or care to comply(trying to stop doesn’t do it
in time)
4. he is confronted by an emergency not due to his own misconduct(tire blowout)
5. compliance would involve a greater risk of harm to the actor or to others(walking
facing traffic-if construction might walk other side) Impson v Structural Metals Inc
e. Negligent as a matter of law means that the court concludes on the facts that reasonable
persons could not find otherwise and accordingly directs a verdict for opposing party on the
issue
Torts- Maatman
7
f. Children Standard of Care
1. currently care of child compared to a reasonably careful child of the same age,
intelligence, maturity, training, and experience- Robinson v. Lindsay
2. Other courts won’t look to child standard if the child was engaged in an activity
which is normally one for adults only- Robinson v. Lindsay
3. When the activity a child engages in is inherently dangerous, as is the operation of
powerful mechanized vehicles, the child should be held to an adult standard of careRobinson v. Lindsay
4. Rule of Sevens- Minority view-Few courts think over 14 capable of negligence, 7-14
rebuttal presumption of incapable, and under 7 incapable of negligence as a matter of
law
5. Rule of sevens not so common but most states hold that children of very young years
three and under are simply incapable of negligence
g. Mentally Impaired
1. generally accepted rule elsewhere is the mental disability does not excuse a person
from liability for “conduct which does not conform to the standard of a reasonable
man under like circumstances” restatement-Creasy v Rusk
2. People with disabilities are commonly held liable for their intentional and negligent
torts- no allowance is made for lack of intelligence, ignorance, excitability, or
proneness to accident restatement- Creasy v Rusk
3. Mental Disability same standard of care as someone without mental disability
4. Neither insanity nor mental deficiency relieves the actor from liability
h. Physically Impaired
1. “a person with impaired vision is not required to see what a person with normal
vision can see- not required to exercise a higher degree of care to avoid injury that is
required of a person under no disability- ordinary care in the case of such a person is
such care as an ordinarily pp with a like infirmity would have exercised under the
same or similar circumstances”- RPPSSC –SSC person w/ same disability- Shephard
v Gardner Wholesale Inc
i. Emergency Circumstances
1. the general principle that the care employed by a reasonable man must be
proportionate to the danger of the activity
2. Restatement – “The care required is always reasonable care. The standard never
varies, but the care which it is reasonable to require of the actor varies with the
danger involved in his act and is proportionate to it. The greater the danger the greater
the care which must be exercised”
j. Special Knowledge
1. if actor has more than the minimum of these qualities he is required to exercise the
superior qualities that he has in a manner reasonable under the circumstances
Restatement -Hill v Sparks
7. Breach
a. P must prove each element of the case by a preponderance of the evid that is by the greater
weight of the evid- neg must be shown to be more probable than not- trier of facts must
reasonably believe that the probability of neg exceeds one-half
b. Neg per se- if statute violated yes breach- unless excuse
c. Implied cost benefit analysis
1. Breach is when you take an undue risk
2. breach of duty is issue for jury
3. Cts likely to use the term ‘foreseeable’ to mean that harm was not only foreseeable
but also too likely to occur to justify risking it without added precautions
Torts- Maatman
8
d. Explicit cost benefit analysis -BPL- Many cases approve risk-utility weighing to determine
neg(US v Carroll Towing)
1. Hand Formula
2. B< P times L yes breach
3. B> P times L no breach
4. B-burden of adequate precautions; P- probability; L- gravity of harm - Looked at how
appear before accident
e. Safety codes/manuals/ordinance
1. rules and policies may exceed its view of what is required by ordinary care (Wal-mart
v Wright)
2. Higher care in manual than ordinary care so they can seek to achieve perfection in
marketing
3. Some safety codes have been adopted by statute or ordinance – not only admissible
but may set standard of care
f. Custom
1. proof of a general custom and usage is admissible because it tends to establish a
standard by which ordinary care may be judged even where an ordinance prescribes
certain minimum safety requirements which the custom exceeds (Duncan v Corbetta )
2. Evid of a safety custom might prove
a. the harm was foreseeable
b. D knew or should have known of the risk
c. the risk was an unreasonable one unless the customary precaution is taken
d. unreasonable in the opinion of the community in general
e. a safety precaution was feasible
3. customs that arise for convenience rather than safety don’t work to show neg
4. Judge Hand telling an industry I know what the standard of care not custom yet but
should be and you guys are not doing well enough buy radios (TJHooper)
g. Specialized standards of slip and fall
1. P can show neg on part of D by proving(Thoma approach)
a. D created dangerous condition (waiter spills drink)
b. D did not directly create the condition but discovered or should have
discovered a condition created by others and should have taken precautions to
prevent injury from that condition
c. the D’s mode or method of business operations made it all too likely that
others would create a dangerous condition(grocery bins design make so
regularly things fall to floor)
2. chief method approved by the cts to should have discovered is to show that the
substance had been there for a relatively long time
3. when such proof is presented cts may say that the D was on constructive notice of the
danger (should have discovered it)
4. reasonableness factor- cts consider
a. the P can show the volume of customer traffic in an area where she fell
b. can the risk-utility test be applied in evaluating the restaurant’s conduct
5. slip and fall P’s have serious proof problems – some cts have aided P a little- don’t
want to let off hooka. burden shifting approach- ky fl la colo NJ- P must show
i. slipped and fell on a substance(breach)
ii. caused injury
iii. D must disprove knew or should have known
b. mode of operation approach- applies to areas of a self-service business 23
states minority approach
Torts- Maatman
9
i. P must prove slipped or fell on substance
ii. P must prove chosen mode of operation the risk of injury is continuous
or foreseeable inherent in the nature of the business or mode of
operation and D does not take care to avoid the risk
h. Res Ipsa Loquitor doctrine
1. event ordinarily does not occur without neg
2. D controls instrumentality
a. Need not be exclusive control just “sufficient”- power and opportunity ex:
exclusive contract to maintain something
b. Scope of duty D had to P
3. no other causes- including P and other parties
4. In Byrne justices felt accident spoke for itself- D must have been(Byrne v Boadle)
5. To invoke res ipsa loquitur the P must show that neg is more probable than not, or as
commonly expressed, that the event does not ordinarily occur without neg of
someone
6. In some cases, judges believe juries lack sufficient knowledge or experience, to
conclude that neg is more probable than not
7. In situations like Byrne judges believe that common knowledge and general
experience of jurors permit them to think that, more likely than not, the D was neg
8. Neg can be inferred when the accident causing harm is a type that “ordinarily happens
because of the neg of the class of actors of which the D is the relevant member”
9. The application of res ipsa loquitur means that on the neg issue the P will survive a
motion for directed verdict and get to the jury which can then decide the case either
way
10. If the P has adduced evid from which the jury could conclude that the elements of res
ipsa loquitur are present, then trial judges commonly give a res ipsa loquitur
instruction to the jury. The instruction “merely tells the jury that if they do find the
existence of these elements then they may draw the inference of neg” not that they
must do so
11. Most cts hold that res ipsa loquitur creates a permissible inference that the jury may
draw if it sees fit
12. A small number of courts say that res ipsa loquitur is not merely a common sense
assessment of evid which permits an inference of fault, but that instead it creates a
“presumption” of neg
13. Cts usually enforce one of two possible effects when a presumption of neg applies:
a. the jury is told that once the presumption applies the D has the burden of
showing he is not neg or
b. the judges will direct a verdict for the P unless the defendant produces some
evid that he was not neg
14. sometimes courts describe the presumption as
a. shifting the burden of persuasion or
b. shifting the burden of production (meaning production of evid) or
c. the burden of going forward with evid
15. Res ipsa loquitur does not ordinarily assist the P when 2 or more D are in control of
the relevant instrumentality at different times. In such a case of serial or consecutive
control, the occurrence of injury does not usually tend to show which D was neg,
much less that both were.
16. powerlines do not normally fall without fault on behalf of the company that maintains
them and that res ipsa loquitur is applied in the absence of a substantial significant, or
probable explanation (Koch v Norris)
Torts- Maatman
10
17. In determining the probabilities that the D was somehow neg judges draw on their
common experience in life rarely on actual data
18. address threshold of complete explanation and
a. nothing left to infer and factual- if there is then do not apply
b. When the evid presents a complete explanation for the accident -courts refuse
to apply res ipsa loquitur
19. superior knowledge
a. Sometimes courts say or imply that res ipsa loquitur cannot be invoked unless
D has superior knowledge
20. Then look to three part test of res ipsa loquitur
a. accident which normally does not happen without neg,
b. exclusive control of the instrumentality by the D, and
c. absence of voluntary action or contribution by the P or other causes
21. If meet gets past a directed verdict and goes to jury where they can decide either way
8. Actual Harm
a. the P must suffer legally cognizable harm or actual damages- necessary to win case
b. Was harm caused
1. ex: got in accident but comes out hurt from falling off bed a week ago- no actual
harm in accident
9. Cause in Fact- causal relationship- the harm was in fact caused by D
a. But for Test
1. requires the judge or jury to imagine an alternate scenario that never happened that is
to imagine what would have happened without the D’s neg
2. But for [if D had done/not done breach, would outcome be different]
3. If yes then not liable if no than liable
4. Acting in concert- both can be held jointly liable- all liable for harm caused even
though only one of the conspirators is a direct cause of harm
5. Look to when single D
b. Substantial Factor Test
1. one that has such an effect in producing the harm as to lead a reasonable person to
regard it as a cause
2. harm being the actual damage; cause- jurors consider what was caused
3. if it was then must be liable- usually used if more then one possible actor
4. Multiple D acting independently but both cause injury to P
5. can have more than one substantial factors – depend on state law for who is
responsible for what damages – joint and several liability(either D in full) or several
liability (only recover for percentage fault from each D)
c. Joint and Several Liability
1. the P can enforce her tort claim against either tortfeasor and actually obtain a
judgment against them both but can not collect more than her full damages- 14 states
including DE
2. for indivisible injuries- can’t figure out who caused what injury
3. If one D pays full amount then can obtain contribution from other to make its
payments proportional to fault
4. If one D has an immunity or no insurance or is insolvent other D would be
responsible for full damages
d. Proportional Liability / Proportionate Share System
1. Majority- the trier of fact makes a comparative fault apportionment of liabilitydiffers from joint in that no tortfeasor is liable for more than his proportionate sharecontribution not needed - PA
e. Alternative Liability
Torts- Maatman
11
shifts burden to D’s to prove I’m not cause in fact
Only used with small set of D- more likely than not one of them did it
If you can prove you didn’t do it won’t be liable
Summers v Tice - one shot P - ordinarily D are in a far better position to offer evid to
determine what one caused the injury
f. Loss of opportunity doctrine
1. has 3 approaches- Cause in Fact
a. Traditional- 51% chance better recovery then get entire damage
b. Variation- if more likely than not caused substantial loss of opportunity, can
still recover for everything
c. Lost opportunity- can recover even if less than 51% was lost- but only for
value of loss
2. Lord v Lovett- find 3rd approach most sound- it allows the P to recover for the loss of
an opportunity for a better outcome, an interest we agree should be compensable,
while providing for the proper valuation of such an interest
3. May be an apportionate problem- comparative fault might reduce damages
10. Proximate Cause-nature of causal relationship
a. Liability limiting- policy-limit liability to foreseeable harms- creates scope of risk
1. D not liable for harm when the harm actually resulting was not the kind of harm that
led to a finding of neg in the first place
2. Ask what harm was risked? is this something we want to hold D liable for?
b. prox cause is an actual cause that is a substantial factor in the resulting harm- ask whether the
harm which occurred was of the same general nature as the foreseeable risk created by the
D’s neg
c. question of fact to be decided by the trier of fact and becomes a question of law when the
mind of a fair and reasonable person could reach only one conclusion
d. “An actor is not liable for harm different from the harms whose risks made the actor’s
conduct tortious”
e. the harm that occurred to the P must be of the “same general nature as the foreseeable risk
created by the D neg
f. Multi-factor test-Andrews test dissent in Palsgraf
1. The prox cause involved as it may be with many other cause, must be, at the least,
something without which the event would not happen.
2. The court must ask itself whether there was a natural and continuous sequence
between cause and effect.
3. Was the one a substantial factor in producing the other? Was there a direct connection
between them, without too many intervening causes? Is the effect of cause on result
not too attenuated? Is the cause likely, in the usual judgment of mankind, to produce
the result? Or, by the exercise of prudent foresight, could the result be foreseen? Is
the result too remote from the cause, and here we consider remoteness in time and
space.
g. D is only liable
1. for types of injuries risked by his neg and
2. to classes of persons risked by his neg
h. in terms of foreseeability the D is not liable unless a reasonable person should have foreseen
injuries of the same general type that occurred and the general class of persons who would
suffer them
i. so if a reasonable person would foresee no harm to anyone as a result of his actions we do
not reach the proximate cause issue
j. today decisions on prox cause almost always emphasize foreseeability in some form as a
limitation on liability
1.
2.
3.
4.
Torts- Maatman
12
k. Unforeseeable P- was P within the class of persons put at risk
l. Unforeseeable manner of harm - is the manner of harm different from manner of harm risked
1. is it a mere variant of the expected manner of harm(if so prox cause yes) or
2. greater than or different in kind from expected manner (if so prox cause no)
3. new, unexpected manner of harm?
m. Unforeseeable extent of harm- Extent of harm test/problem - you will have prox cause if the
harm would occur to a normal person or D knew or should have known that P was more
susceptible to the harm occurred
1. Thin Skull Case
a. If the D is in fact guilty of tort-that is he was neg or guilty of intentional harmthen the fact that the harm was much worse than anyone would have expected
does not limit his liability
b. Generalized by saying the D takes the P as he finds her
n. Superseding Cause-majority - Whether second actor’s conduct was normal or foreseeable
consequence of D acts1. An intervening act may not serve as a superseding cause, and relieve an actor of
responsibility, where the risk of the intervening act occurring is the very same risk
which renders the actor neg- is it extraordinary or unforeseeable? (Derdiarian)
2. Majority- if succeed the other is completely liable
3. Minority opinion- would not use superseding cause unless it is an intentional tort,
force of nature, or a criminal act
4. An intervening act may not serve as a superseding cause, and relieve an actor of
responsibility, where the risk of the intervening act occurring is the very same risk
which renders the actor neg
5. Foreseeable intervening forces are within the scope of the original risk and hence the
D’s neg – they will not supersede D responsibility
o. Contributory negligence- all or nothing defense- even relatively minor failure of the P to
exercise ordinary case for her own safety would completely bar recovery
1. minority
p. Comparative Negligence
1. Pure- The culpable conduct attributable to the claimant or decedent including
contributory neg or assumption of risk shall not bar recovery, but the amount of
damages otherwise recoverable shall be diminished in the proportion which the
culpable conduct attributable to the claimant or decedent bears to the culpable
conduct which caused damages
a. Damages shall be diminished in proportion to own conduct
2. Modified-Contributory neg does not bar recovery
a. If the neg was not greater than the neg of the person against whom recovery is
sought but any damages allowed shall be diminished in the proportion to the
amount of neg attributed to the person recovering
b. Let you recover unless P was responsible equally or more in proportion to D
for injury of P
3. So if P responsible for 55% and D 45% in Pure P would get 45% recovery in
Modified wouldn’t get anything
4. one way to make sense of comparative neg is to assume that the required comparison
is between the respective costs to the P and to the D of avoiding the injury
5. The relevant factors for assigning percentages of responsibility include the nature of
each person’s risk creating conduct and the comparative strength of the causal
connection between each person’s risk creating conduct and the harm
6. Mercer v Vanderbilt- looked to in Gray the court concluded without analysis that the
decedent suffered an indivisible injury and limited the scope of Gray’s holding to
Torts- Maatman
13
cases in which “there is one indivisible injury proximately caused by the separate
independent acts of the patient and the physician”
a. policy problem with Gray Patients who may have neg injured themselves are
entitled to non-neg medical treatment and to an undiminished recovery if such
subsequent non-neg treatment is not afforded
b. No other juris seems to utilize this approach in determining whether principles
of comparative fault or contributory neg apply
c. most have held that a patient’s neg that provides only the occasion for medical
treatment may not be compare to that of a neg physician
7. McNamara v Honeyman -there can be no comparative neg where the D’s duty of care
includes preventing the self-abusive or self-destructive acts that caused the injury
a. McNamara can be understood as holding that when the D undertakes to
protect the P from her own fault or when the law imposes such a duty, the
entire responsibility for care by definition falls upon the D and the P;s fault
cannot be held against her
8. Statutes sometimes impose a duty upon the D to protect P who are vulnerable or
disabled
9. Worker’s compensation statutes also reject the contributory neg defense when a
worker is injured on the job
10. One char that unites these cases is that the D imposes a risk upon the P but that the
P’s fault imposes no similar risk upon the D
11. The P disability or vulnerability might be especially important if
a. the D knows of the P’s disability which prevents or inhibits the P’s care for
himself and
b. the P’s risky conduct endangers himself but not others
q. Assumption of the risk
1. explicit
a. oral agreement - can find express assumption of the risk even when there is no
written document Boyle v Revici
b. essential service- can’t have an agreement to shoulder the burden of a risk on
P - Tunkl v Regents of Univ of Cal
c. is harm outside the risk you agreed to take on by contract- Allegedly improper
course layout may be actionable if the course posed a risk beyond ordinary
neg related to the inherent risks of ATV riding assumed by the releaseMoore v Hartley Motors
2. implied
a. stand alone affirm defense
b. merged with comparative neg
c. Modern analysis
d. Assess whether P voluntarily and with awareness of specific risks inherent in
the activity nonetheless engaged in the activity that produced the injury of risk
e. Operative fact is P’s voluntary choice to undertake risk
f. If criteria is met judge will not send to jury because the D owed no duty
g. If not met then will send to jury with comparative neg instruction
h. assess the scope of P’s consent
r. Crews v Hollenbach- To determine known danger look to whether the P
1. had knowledge of the risk of danger
2. appreciated the risk and
3. voluntarily exposed himself or herself to the risk
s. apply an objective standard
Torts- Maatman
14
t. The question of whether a P knew and understood the risk in a case is generally one for the
trier of fact but if a person of normal intelligence in the same position as the P would clearly
have comprehended the danger the question is one for the court
u. if a person was compelled to act and had no freedom of choice regarding whether to act we
will not say as a matter of law that he or she acted voluntarily
v. when in doubt will go to jury with comparative neg instruction
w. Turcotte v Fell- pro sports-D breached no duty to the P either because of consent or because
courts concluded on policy grounds that the D was under no duty or that he was not neg
1. Duty to make conditions safe as they can appear to be
X. Affirmative Defenses
XI. Variations
a. Most center on duty
2. Landowners(possessor) – Traditional categories of P status
1. Trespasser- any person who has no legal right to be on another’s land and enters the
land without the express or implied consent of the landowner
2. Invitee- any person on the premises
a. at least in part for the pecuniary(monetary)s benefit of the landowner(business
invitee) or
b. who is on the premises held open to the general public (public invitee)
3. Licensee- someone who is on the land with permission, but with a limited license to
be on the premises
a. social guests are considered licensees in the traditional view
b. When don’t know trespasser is there D is under no duty to anticipate trespassers and could
only be liable for injures resulting from willful or wanton conduct
c. When know trespasser is present D is under duty to use ordinary care to avoid injuring P
does not arise until D knew or should have known that P was there
d. Willful conduct “involves an intent, purpose, or design to injure”
e. Wanton conduct involves the failure to exercise, “any care whatsoever toward those to whom
he owes a duty of care and his failure occurs under the circumstances in which there is great
probability that harm will result” (recklessness)
f. Invitees duty- reasonable care for their safety if, but only if, he should expect that they will
not discover or realize the danger, or will fail to protect themselves against if
1. will not be liable for dangerous conditions not identified with reasonable care
g. Licensees duty- failure to carry on his activities with reasonable care for their safety if, but
only if, he should expect that they will not discover
h. Traditional view – landowners do not owe a duty of reasonable care to either trespassers or
licensees- landowner owes only the duty to avoid intentional, wanton, or willful injuryusually applied only when the landowner has not discovered or received notice of imminent
danger to the entrant
i. If landowner discovers both the presence of the entrant and the fact that he is about to
encounter a danger the situation is different
1. if fail to act reasonable then guilty of willful or wanton misconduct
j. if landowner knows trespassers frequently use a limited area ct might impose liability
k. an owner owes no duty to warn or protect others from a defective or dangerous condition on
neighboring premises unless the owner had created or contributed to it
l. when a natural condition on the land creates a risk to persons outside the land, the case may
be moving toward a duty of ordinary care
m. Attractive nuisance doctrine- A possessor of land is subject to liability for physical harm to
children trespassing thereon caused by an artificial condition upon land if
Torts- Maatman
15
1. the place where the condition exists is one upon which the possessor knows or has
reason to know that children are likely to trespass and
2. the condition is one of which the possessor knows or has reason to know and which
he realizes or should realize will involve an unreasonable risk of death or serious
bodily harm to such children and
3. the children because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous by it
and
4. the utility to the possessor of maintaining the condition and the burden of eliminating
the danger are alight as compared with the risk to children involved and
5. the possessor fails to exercise reasonable care to eliminate the danger or otherwise to
protect the children
n. Open and Obvious Danger Doctrine- landowners duty to protect visitors against dangerous
conditions on his prop ordinarily does not extend to dangers that would be obvious to persons
of average intelligence
o. Test: Ask where a danger would be obvious to a person of ordinary perception and judgment
a landowner may reasonably assume that a visitor has knowledge of it and therefore any
further warning would be an empty form
p. Presumes a P exercising reasonable care for his own safety and asks whether the dangerous
condition was objectively speaking so obvious that the D would be reasonable in concluding
that an ordinarily intelligent P would perceive it and avoid it
q. Rowland was the first case to abolish the categories ad substitute general duty of reasonable
care
r. Must take reasonable measures to prevent injury to those whose presence on the prop can
reasonably be foreseen(Scurti v NY)
s. When categories have been abolished the landowner is still not liable unless he is neg
3. Nonfeasance
a. Exceptions
1. If a person knows or has reason to know that his conduct, whether tortious or
innocent, has caused harm to another person, he then has a duty to render assistance
to prevent further harm
2. If a person has created an unreasonable risk of harm, even innocently, a duty of
reasonable care arises to employ reasonable care to prevent the harm from occurring
3. If a statute or ordinance requires a person to act affirmatively for the protection of
another
b. Common law- one person owes another no duty to take active or affirmative steps for
another’s protection
c. Nonfeasance- doing nothing- not liable for not doing anything
d. Misfeasance- neg in doing something active
e. Duty to engage in activity non-neg
f. no legal duty to rescue unless legally responsible in whole or part for placing P in the
perilous position -Yania
g. An adult encouraging another adult to engage in dangerous activity can not give rise to a
legal duty
h. Wakulich v Mraz -One who voluntarily undertakes to render services to another is liable for
bodily harm caused by his failure to perform such services with due care or with such
competence and skill as he possesses
i. Farwell v Keaton -Minority opinion- Companions on a social venture- implicit in such a
common undertaking is the understanding that one will render assistance to the other when in
peril
Torts- Maatman
16
j. 7 kinds of formal relationships that place a D under a duty or reasonable care for the P’s
safety, including reasonable affirmative efforts to rescue
1. carrier-passenger
2. innkeeper-guest
3. landowner-lawful entrant
4. employer-employee
5. school-student
6. landlord-tenant
7. custodian-person in custody
b. list is not exclusive and cts may identify additional relationships that give rise to a duty to
assist
c. where the P and D are in a special relationship the D will have a duty of reasonable care
whether or not the D had anything to do with creating or increasing the risk of harm to the P
4. Duty of D to protect P from third persons
a. 4 approaches to whether duty to protect from 3rd persons
1. specific harm rule- landowner does not owe a duty to protect patrons from the violent
acts of 3rd parties unless he is aware of specific imminent harm about to befall themcts say to restrictive
2. prior similar incidents-foreseeability is established by evid of previous crimes on or
near the premises- putting landowner on notice of future risk- but may be arbitrary
because use diff standards(amount of crimes)
3. majority- totality of the circumstances- takes additional factors into account such as
nature, condition, and location as well as other factual circumstances bearing on
foreseeability
4. minority- balancing test- addresses the interests of both business proprietors and their
customers by balancing foreseeability of harm against the burden of imposing a duty
to protect against the criminal acts of 3rd persons (BPL)
b. absent some special relationship a private person has no duty to protect another from criminal
acts of 3rd person
c. Relationship between D and P
1. Special relationship ^
d. Relationship between D and 3rd party
1. Ability to control or
a. under duty to third persons to do all that he legally can to get rid of a
dangerous condition on the leased premises even if it means getting rid of the
tenant
2. Ability to warn P
e. Duty of Parent’s to control Children
1. Parents are not liable for a child’s torts merely on the basis of the parental
relationship alone- or for failure to control a child merely because the child is known
to be rough
2. Are liable only for failing to control some specific imminent dangerous habit of a
child of which the parent knows or should know in the exercise of reasonable care
a. Some states stress a parent’s inability to control their children’s behavior as a
reason not to impose a duty of care- don’t want to get involved in family
f. D relationship with Dangerous Persons
1. Tarasoff v Regents of University of California-Balancing of a number of
considerations when D has relationship w/ dangerous
a. foreseeability of harm to P
b. the degree of certainty that the P suffered injury
Torts- Maatman
17
c. the closeness of the connection between the D’s conduct and the injury
suffered
d. the moral blame attached to the D’s conduct
e. the policy of preventing future harm
f. the extent of the burden to the D
g. consequences to the community of imposing a duty to exercise care with
resulting liability for breach
h. availability, cost, and prevalence of insurance for the risk involved
2. most important for duty is foreseeability- D owes a duty of care to all persons who are
foreseeable endangered by his conduct with respect to all risks which make the
conduct unreasonably dangerous
3. Proof aided by hindsight that he or she judged wrongly is insufficient to establish neg
4. Thompson- Cal-duty arises in those instances in which the third party poses a
predictable threat of harm to a named or readily identifiable victim
5. Majority- PA “Only in those situations in which a specific and immediate threat is
communicated can a duty to warn be recognized. Moreover, the duty to warn will
only arise where the threat is made against a specifically identified or readily
identifiable victim.”
6. Minority- Wis- a duty exists when it is established that it was foreseeable that an act
or omission to act may cause harm to someone. Consequently, the duty to warn or to
institute commitment proceedings is not limited by a requirement that threats made be
directed to an identifiable target.
g. Neg Entrustment
1. “Liability for neg entrustment results when an - Turner
a. owner having knowledge of a person’s incompetency, inexperience, or
recklessness,
b. entrust his automobile to another
c. with permission to use itd. at time of entrustment the owner must have actual or constructive knowledge
of the incompetency to operate the vehicle”-test for knowledge- by reason of
some mental or physical disability evidenced by youthful age, mental
impairment, physical handicap or intoxication
2. some courts have extended the duty to sellers who know or should have known that
the buyer is dangerous to others
3. A person in control of a chattel owes a responsibility not to entrust that chattel to a
person whom the entruster knows or should know is apt to use it in a dangerous way
a. once duty is imposed use elements of neg
b. may be liable to third person injured but also to entrustee
h. Emotional Harms
1. Stand alone emotional distress claim
a. intention infliction of ed
b. neg infliction of ed
i. P is “direct object” of D’s neg (near miss of being injured)
ii. Bystander – P is onlooker and suffers ED when D neg causes physical
harm to another
iii. Independent duty
c. Loss of consortium
2. P is direct object- approaches used by jurisdictions- worried about fake claims
where’s the line
a. minority- Physical impact rule ex: P miscarries after fright of almost being hit
by horses ct found D because no impact – outdated now
Torts- Maatman
18
b. Zone of danger plus physical manifestation rule
c. Objective corroboration rule- require some medically diagnosable emotional
injury
d. Corroboration from facts
e. Zone of danger
3. Bystander
a. Zone of Danger Rule
b. Rule under Dillon analysis-ct held that D might owe a duty to protect not only
the injured person but those who might foreseeably suffer emotional harm
because of the injury- identified factors to be considered
i. Whether P was near the scene
ii. shock resulted from a direct emotional impact upon P
iii. P and victim were closely related
c. Rule under Thing analysis- P may recover for damages of ED caused by
observing the neg inflicted injury of a third person if but only if said P
i. closely related to the victim(blood or living in house- defined by juris)
ii. present at scene at time of occurrence and then aware of D neg which
is causing injury to victim and
iii. as a result suffers serious ED(reaction beyond disinterested witness
and not abnormal to circumstances)
4. Independent duty
a. ex: Burgess Dr had duty to patient which included to protect from neg
infliction of ED due to neg work
5. Derivative claim of Loss of Consortium
a. legal harm in a chronic ongoing sense of loss
5. Vicarious Liability- who can be held liable for someone else neg or intentional tort
a. Respondeat Superior principle- Employers could be held liable for torts of certain
employees- provided committed within scope of employment
b. Goals-policy
1. prevention of future injuries
2. assurance of compensation to victims
3. equitable spreading of losses caused by an enterprise
a. employers have insurance
b. reflects cost of doing business
c. control cost of business
c. Riviello test is whether the act was done while the servant was doing his master’s work no
matter how irregularly or with what disregard of instructions
d. Basic Test- Hinman- gave factors for them to decide w/in scope of employment
1. whether his conduct was authorized by his employer either expressly or impliedly
2. the nature of the employment its object and the duties imposed thereby
3. whether the employee was acting in his discharge thereof
4. whether his conduct occurred during the performance of services for the benefit of the
employer either directly or indirectly or of himself
5. whether his conduct even though not expressly or impliedly authorized was an
incidental event connected with his assigned work
e. Going and coming rule - says not liable for employee when g and c to work
1. Exception commute is to benefit of employer
a. Should be required to pay for the risks inherent in decision to reach outside
labor market or POB in remote area
2. Exception of special hazard- distance alone not enough
Torts- Maatman
6.
7.
8.
9.
19
3. Exception of dual purpose -applies when in addition to merely commuting the
employee performs a concurrent service for his employer that would have
necessitated a trip by another employee is the commuting employee had not been able
to perform it while commuting
f. Respondeat superior has been held to apply when
1. the employee is engaged in a special errand or mission on the employer’s behalf
2. the employer requires the employee to drive his or her personal vehicle to work so
that the vehicle may be used for work-related tasks
3. employee is on-call
g. If own purposes- if characterized as mere detour employer still liable if frolic of her own not
1. employee must have formulates an intent to act in furtherance of the employer’s
business
2. the intent must be coupled with a reasonable connection in time and space with the
work in which he should be engaged
Respondeat Superior when employee commits intentional tort
a. Lisa M- sexual battery by ultrasound tech P trying to hold hospital
1. Did intentional tort arise out of (or was a causal nexus) to the employment
2. Whether risk of tort is a foreseeable consequence of enterprise
3. Respondeat Superior liability should apply only to the types of injuries that are as a
practical matter are sure to occur in the conduct of the employer’s enterprise
4. conduct must in whole or in part be for purpose of employers interest
b. not ordinarily liable for assault however this rule does not apply when the act is one which is
fairly and naturally incident to the business
1. ex: Rodebush not odd to get frustrated w/ Alzheimer’s patient
c. inappropriate sexual contact or abuse of power in these situation is a well known hazard in
the enterprise- group homes, police officers
Other Forms of Respondeat Superior
a. Joint enterprise- cts have imposed liability upon all members of a joint enterprise when
persons outside the enterprise are injured- when:
1. an agreement express or implied
2. there is a common purpose
3. there is a community of interest and
4. there is equal right of control
b. social and joint venture will also qualify if meet elements
c. if injure within enterprise only liable to one injured
d. Acting in Concert- when understood agreement, parallel activity – need evid of agreement to
commit intentional tort, or awareness of imminent danger
Products Liability
a. Can bring
1. Neg
2. Breach of warranty
3. Strict product liability
a. Defective manufacture- one of product was bad
b. Defective design- all bad
c. Defective warnings- didn’t tell me something or not enough
Damages
a. Punitive- willful, wanton, or intentional behavior
b. Compensatory
1. medical expenses, lost wages, pain and suffering- pain- physical; suffering-mood loss
of enjoyment, lost household services, loss of consortium