Torts Outline
§3 Pittman
Fall 2004
Negligence- any conduct, except reckless, which falls below the standard established by law for the
protection of others against unreasonable risk of harm
Elements of Negligence:
 DUTY to use reasonable care-conform to certain SOC
 BREACH – failure to conform to required Duty/Standards
 CAUSATION
 DAMAGES
Burden of Proof- P must allege and prove each element by preponderance of the evidence.
-Negligence can be based on D’s act or omission to act if he is under an affirmative duty.
DETERMINATION OF RISK
Unreasonable RiskP must show that D’s conduct imposed an unreasonable risk of harm on P.
Lubitz v. Wells- golf club on lawn- Ct. looks at LH v. RH. Act must not be unreasonable. Shotgun would
have been different.
*RH and LH- the higher the RH, more likely ct will find duty.
Two purposes for Tort Law:
1. to compensate people injured
2. to deter future conduct of same nature
Blythe v. Birmingham Waterworks Co.- water main freezes and causes flood- Take precautions a
reasonable ordinary person would take under same circumstances- Unusual conditions.
Gulf Refining Co. v. Williams- defective gas container explodes- It is only necessary that injury is likely to
occur, not that it’s highly probably. Especially if injury would be great harm.
Chicago (R.R.) v. Krayenbuhl- child’s foot cut off b/c playing on RR turntable w/ no padlock- Utility v.
Risk of product. Operator of inherently dangerous equipment has duty to take reasonable precautions to
make equipment safe- put $10 padlock on. What would a RPP do?
Davidson v. Snohomish County- car skids off bridge b/c crappy rails- brings Cost (C) into LH and RH
equation. Here, C is burden public could not bear, so no duty exists.
U.S. v. Carrol Towing Co.- barge’s mooring lines break b/c no attendant- If Possibility and Likelihood of
Harm are greater (>) than the Burden, a duty should be imposed. The Hand Formula: PxL>B (like a costbenefit analysis).
Restatement(2d) §291: A risk is unreasonable and an act negligent if the risk is of such magnitude as
to outweigh utility of the act
STANDARD OF CARE- RPP under SSC
The Reasonable Prudent Person under Circumstances
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Vaughan v. Menlove- burning hay rick- rule of RPP is an objective standard, not subjective. One has a
duty to act if there is an existence of some likelihood of injury great enough that a RPP would take
precautions. Ignorance/Stupidity/Lack of Intelligence is not a defense.
S.O.C.- a reasonable man of ordinary prudence, ordinarily prudent man, typical prudent man, average
person of ordinary prudence.
RPP ≠ extraordinarily careful person
Delair v. McAdoo- old tire blows out- Duty exists to have a general knowledge. One is deemed to know
condition of car parts(generally).
Trimarco v. Klein- glass shower door shatters- A custom can be used as standard of care (SOC). Custom
must be reasonable under all circumstances. To show jury a custom, use expert if necessary-industry
custom.
Special Circumstances:
Emergency: Cordas v. Peerless Transportation Co.- gunman in taxi, driver bails- Emergency may cause
RPP to act differently. An emergency falls under RPP “considering all the circumstances”. If emergency is
caused by D, he’s negligent. Must do what a RPP in that emergency would do.
Disability: Roberts v. State of LA- blind man knocks over old man- Different SOC for handicapped- Blind
person SOC = Duty to act as a RPP blindperson would.
Children: Robinson v. Lindsay- children snowmobile accident- Held child to adult SOC when child’s
actions are inherently dangerous.
-Normally children SOC: child of like age, intelligence, and experience.
3 exceptions: (depends on jurisdiction):
 Adult Activity- if child engages in adult activity, held to SOC of adult
 Inherently Dangerous Activity- where child engages in IDA, held to adult SOC. This recognizes
hazard and discourages.
 Rule of 7- SOC determined by age
 Under 7- incapable of negligence
 B/t 7-14- presumed incapable, but can be proven negligent
 Over 14- presumed capable, but can be proven incapable
-No special SOC rule for elderly, but they are held to RPP under the circumstances(being old).
Mental Illness:
Breunig v. Am. Family Ins. Co.- crazy, insane delusion causes car wreck- Inane person held to same SOC
as RPP- no exemption. But, sudden, unforeseeable, delusion will not cause negligence.
Policy basis for holding insane liable:
1. When 2 innocent persons must suffer loss, should be suffered by one who caused
2. Induce guardians of insane to control them
3. Fear that insanity defense will lead to false claims of insanity
Professionals:
Professionals are expected to adhere to the SOC of a RPP employed in that profession.
Heath v. Swift Wings, Inc.- Pilot crashes airplane- Professionals held to Professional SOC. It is objective
standard  what a RPP pilot would do under same or similar circumstances.
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Persons w/ special skills held to higher SOC
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Level of experience does not matter
Specialist in a profession(i.e. ob-gyn) held to even higher SOC
All doctors held to SOC of other doctors- have knowledge, training, and skill of an ordinary member
of the profession in good standing.
To prove professional SOC- use expert witness
Attorneys: Hodges v. Carter- attorney’s error in judgment- Attorney SOC  will use reasonable care and
diligence in applying requisite skills and knowledge to client’s cause.
Not held liable for mere error.
Attorneys who hold themselves out as Attorneys state:
- you posses the requisite degree of learning, skill and ability that minimally competent lawyers posses.
- You will use best judgment
- You will use reasonable and ordinary diligence to do client’s work.
***Remember:
1) Attorney is a member of a profession and held to a higher SOC
2) Custom was okay in Hodges b/c it was something a RPP attorney would have done.
Doctors:
Doctors SOC: look at ordinary, minimally competent physician. An expert will tell what training,
knowledge, and skill a RPP doctor would have.
Two components for all SOC:
1. must have knowledge
2. must apply it
Boyce v. Brown- ankle fracture, no xray- If negligence by doctor isn’t “grossly apparent,” proper standard
must be established by expert medical testimony. What a doctor would personally do isn’t important.
Must prove either that doctor:
1. Didn’t posses the knowledge of an avg. ordinary doctor, or
2. That he did, but didn’t use it
-Expert witness testimony is deemed conclusive
-Custom: if customary practice is lagging behindliable for negligence
Nat’l SOC: Morrison v. MacNamara- D.C. lab using bad practice in test, plaintiff fell- Ct. abandons
locality rule for nat’l standard.
SOC is differs with jurisdiction:
1. Locality rule- conduct measured by other members in same locality/community.
2. Same/Similar locality- other communities of same size/resources
3. Nat’l Standard- usually used for board certified physicians. MS makes exceptions depending on
resources.
a. Hall v. Hilver- MS- est. 2 components for Nat’l SOC:
1. Knowledge of RPP
2. Resources of RPP
*Trend is towards nat’l soc.
Informed consent- knowing choice made by patient after physician discloses info a RPP provider would tell
a patient re: risks. Follows principle of self determination.
Scott v. Bradford- doctor must make full disclosure of all material risks (risks likely to affect a patient’s
decision) and alternative treatments.
To sue under informed consent, P must allege and prove:
1. D physician failed to inform of material risk
2. If patient had been informed, he would not have consented
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3.
P was injured b/c of submitting
-2 Standards of what a doctor must tell patient:
1. Professional- subjective- duty to disclose all risks that a RPP physician would disclose.
2. RPPatient- objective-duty to disclose all risks material to patient’s decision.
-Regarldess of which standard used, doctor has duty to explain certain areas:
1. Risk/Benefits of doing nothing.
2. Risk/Benefits of p treatment
3. Risk/Benefits of alternative treatment
4. Doctor’s experience in performing treatment.
5. Reputation of the facility (resources)
6. Medical problems: HIV, Alcoholism, Physical/Mental Conditions
7. Contagiousness of patient’s disease- so patient can warn persons he’s come in contact w/. Duty
to warn others sometimes is to family, sometimes to patient.
8. Side effects of medication given.
9. Financial/Economic Interests of Doctor (Moore v. Regents of U. of Calif)
Medical Battery- if no consent given- failure to give informed consent.
Material Risks- may be small, but should still inform.
-Must inform of alternative to do nothing and risk of not having treatment.
Moore v. The Regents of the University of California- Golde using Moore’s cells for research and cell lineDuty exists to disclose research, financial, and personal interest. If no disclosure-breach of fiduciary
duty.
-Doctors must inform risks relating to physician or his capacity to perform: AIDS, alcoholic, on probation,
financial incentives.
AGGRAVATED NEGLIGENCE:
Simple negligence- failure to do what a RPP would do
Gross negligence- failure to exercise even slight care; extreme departure from ordinary standards; Punitive
damages allowed under “gross”.
Damages: compensatory (amount suffered), punitive (punishment)
Automobile Guest Statutes- if guest is riding in car, can’t sue driver for negligence unless grossly
negligent.
RULES OF LAW- SOC acknowledged by courts and given effects of law. Duty depends upon the
circumstances.
Pokora v. Wabash Ry. Co.- truck and RR crossing, driver must get out to look- Exceptions exist to
established “Rules of Law”. Juries, not judges, will decide what RPP should have done. All depends on
circumstances- no ironclad rules.
VIOLATION OF A STATUTE:
Sometimes, violation of a criminal statute is held by a court to be negligence. Negligence exists w/ breach.
Liability only exists if P is in class protected and injury was meant to be protected.
Three views of violation: (explained in detail below)
1. negligence per se
2. rebuttable presumption
3. merely evidence
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Osborne v. McMasters- no label on poison- Ct. has discretion in determining whether to apply statute as
fixed SOC. To determine, ct looks at:
1. If P is member of class meant to be protected.
2. If Harm/Injury is type statute intended to prevent
3. Proximate Cause of violation to injury
**if statute is not accepted as SOC, duty is to do what RPP would have done.
Stachniewicz v. Mar-Cam Corp.- drunken bar brawl- Ct. accepts violation of regulation as standard
imposing duty. Statute or regulation must not be vague in what class is to be protected and what harms
they are protected from.
-Fed’l laws have no “doctrine” of negligence, but it’s sometimes implied that violation of a criminal statute
can result in civil action for negligence. Ct has discretion to adopt state or fed’l statutes.
Administrative regulations- given lesser effect than statutes
Advisory codes, voluntary industry standards- admissible, but not binding on issue of negligence
Ney v. Yellow Cab Co.- keys left in ignition, cab stolen, wreck- Relation of injury to violation- Ct. here
goes far in applying statute to facts at hand. Applying statutory SOC and proving violation is only prima
facie negligence. Jury decides proximate causation.
Perry v. S.N. and S.N.- Perry violated child abuse reporting statute- The absence of a relevant common
law duty should be considered in deciding whether to apply negligence per se. Ct. doesn’t allow statute to
establish a SOC.
*Violating license statutes normally doesn’t establish SOC.
Violation of Statute by Plaintiff:
Per se: Martin v. Herzog- buggy w/ no lights hit by car- violation of safety statute is negligence per se.
Now, causation must be proved.
In determining whether to adopt a statute, ct decides if it will be fair, workable, and wise:
1. Statute clearly defines prohibited or required conduct
2. will applying statute create liability w/out fault?
3. Will negligence per se impose ruinous liability disproportionate to D’s conduct?
4. Did injury result directly or indirectly?
Violation of applicable statute is seen as negligence now causation must be proven
Rebuttable Presumption: Zeni v. Anderson- snowy slippery sidewalk and hit by car- Rebuttable
Presumption- negligence due to violation of statute may be rebutted by adequate excuse- jury decides on
adequacy.
Restatement (2d) §288A: Excused violation is not negligence.
Excuses allowed:
Actor’s incapacity
Actor doesn’t know of compliance
Is unable to comply
Emergency
Compliance is greater risk of harm to actor or others
No Excuses:
a) Child labor laws
b) Pure food act
c) Federal Safety Appliance Act
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d) OSHA
e) “safe place” statutes
f) Firearms to Minors statutes
3 Different Views of Statute Violation: First, judge decides if statute applies to case. If it does, the
negligent violation of said statue will be viewed as one of the following depending on jurisdiction.
1. Presumption of Negligence- violation is prima facie negligence and may be rebutted- rebuttable
presumption- Zeni v. Anderson.
2. Negligence Per Sea. Negligence per se- some cts allow for excuses so it’s really “presumption of negligence”.
b. Strict Negligence Per se- strict liability. If violation  negligent. Causation needs to be
proved. Martin v. Herzog.
3. Evidence of Negligence- Cts look at all circumstances, other facts. W/ these facts, jury decides if RPP
under those circumstances would have done as she did.
*Compliance with a statute doesn’t necessarily preclude evidence of negligence.
PROOF OF NEGLIGENCE: must prove breach w/ evidence
Circumstantial Evidence- evidence of one fact…from which the existence of the fact to be determined
may reasonably be inferred.
Goddard v. Boston & Maine R.R.- a D does not have a duty unless P proves that D knew or should
have known of a dangerous situation. P slipped on peel in station, but no evidence presented that P
was there long enough for D to know.
Anjou v. Boston Elevated Ry.- slip on banana peel that was dirty, gritty, and black in color.
Constructive Notice- a notice presumed by law. D, through due diligence, should have known.
Joye v. Great Atlantic and Pac. Tea Co.- slip on banana in store. Storekeeper is allowed a
reasonable time to correct a dangerous situation unless it was a direct result of employees action.
-To prove D had constructive notice, evidence must be presented showing hazard was there long
enough for store to have discovered it and removed it.
Jasko v. F.W. Woolworth Co.- pizza counter case- P must show D had notice of a dangerous
situation. Unless manner of business is such that a dangerous situation is continuous or easily
foreseeable.
Rule of Constructive Notice:
1. Did D directly cause the hazard
2. Did D have actual notice of its presence.
RES IPSA LOQUITUR:
The thing speaks for itself. One is presumed to be negligent if he had control over the thing which caused
the negligence. Res Ipsa allows a case to get to a jury. It’s a form of circumstantial evidence. When P
doesn’t know, D should explain what happened if res ipsa applies b/c D is in better position to explain.
Byrne v. Boadle- barrel of flour falls from store window- fact of barrel falling is prima facie evidence of
negligence. Ct. applies res ipsa- P doesn’t have to explain what happened, D must rebut what P alleges.
Elements to allow res ipsa: (for this case)
(1) instrument causing injury is in custody of D
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(2) accident is one which normally doesn’t occur w/out negligence
Delaughter v. Womack- MS- Doctrine of res ipsa does not apply where there is direct evidence as to the
precise cause.
McDougal v. Perry- D’s spare tire came loose and hit P’s car. Is fact that tire flew out enough to est. res
ipsa in this case? Yes b/c it meets 2 elements. P must only show that most of the time negligence is the
cause of accident.
-R. § 328 D- requires P to show D’s control by eliminating other possible causes.
Aviation- b/c of technological advancement in airplanes, negligence is usually presumed where there is a
crash. In old days, this was not true, so res ipsa was not applied.
-Escalators that suddenly stop do not usually cause res ipsa
Larson v. St. Francis Hotel- P hit from chair thrown from hotel window during celebration. Res ipsa not
applied.
Test for applying res ipsa:
(1) that there was an accident
(2) thing which caused accident was under the exclusive control of D (cts do not always hold this
strict of a standard)
(3) accident does not normally occur w/out negligence
-Just b/c res ipsa is not granted, D can still be liable if P can come up w/ evidence
-Any time parked car moves and injures someone, res ipsa will be applied unless D can show involvement
of 3d party.
-D’s superior knowledge: basis of res ipsa is D’s ability to obtain evidence.
-Res ipsa applies when a car leaves traveled portion of hwy and injures someone
Yabarra v. Spangard- P’s shoulder injured during surgery when he was unconscious. Can res ipsa
loquitur be applied to multiple Ds (doctors) when P can’t determine who caused injury? Yes b/c all Ds
had control over his body and a special responsibility to him. Res ipsa used to avoid conspiracy of silence.
Used expert testimony to show negligence was probably (51%) the cause of the injury.
Loch v. Confair- res ipsa applied against multiple Ds b/c they had a special relationship. Coke bottle
explodes- bottler and retailier both had control.
-If multiple Ds acted independently, res ipsa will not be applied.
-Res Ipsa is used b/c otherwise P would not be able to show how injury occurred. Allows a case to get to a
jury.
Sullivan v. Crabtree- D lost control of truck and crashed. Res ipsa did apply, but warranted only an
inference of negligence. Jury then decided that D wasn’t negligent.
Three ways courts respond to res ipsa
(1) inference of negligence- jury may or may not draw upon. MS uses this.
(2) presumption of negligence- requires jury to find negligence if D does not produce evidence sufficient
to rebut the presumption.
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(3) strong presumption shifts BOP- D must prove by a preponderance of all evidence that the injury was
not caused by his negligence.
Powell v. Methodist Health Care- MS Supreme Ct. held there are 3 elements that must be met for res ipsa
to apply:
1) D had control of instrument causing P harm
2) Injury is one that does not ordinarily occur w/out negligence
3) Injury is not a result of P’s voluntary act- No evidence that result of injury was not a voluntary act
on Powell’s part.
States deal w/ #3 differently
1. any act- any act, even 1% negligence, by P, will bar him from suing
2. comparative negligence- (MS)- res ipsa may be used if P is partial cause, not just sole
(100%) cause.
Factors necessary for res ipsa:
1. Accident
2. D had exclusive control (or multiple Ds Yabarra)
3. Type of accident that occurred is one that does not normally occur in ordinary course of events
w/out negligence.
4. P cannot prove (no evidence) how accident occurred.
-Res ipsa will w/ stand motion for directed verdict and get you to jury.
CAUSATION***
Causation divided into
(1) Cause-in-fact:
a. “but for” test- accident would not have occurred but for D’s negligence
b. Substantial factor- D’s negligence was a substantial factor in injury- easier to prove
(2) Proximate Cause: policy determination that at some point your negligence will be cut off from
liability
a. Direct result/consequences
b. Foreseeability
CAUSATION IN FACT
Sine Qua Non- without which not- Injury would not have occurred “but for” the D’s negligence. D’s
negligence was the sine qua non of the injury. This is a Defense that can be used by D.
Perkins v. Texas and New Orleans Ry. Co.- speeding train hits truck negligently crossing tracks. Even if
train had not been speeding, it would still have hit truck. Just b/c one is negligent, one is not liable unless
negligence is cause-in-fact of the injury.
-For liability, must pass “but for” test
-Normally, intentional acts will cut off causation
-P has burden of presenting evidence to prove causation
Proof of Causation
Gentry v. Douglas Hereford Ranch- Gentry shot when someone stumbled at ranch and discharged rifle.
For Ranch to be liable, their steps must have been a “but for” cause of injury. P must prove, but didn’t.
Shooter testified he may have stumbled before reaching steps. P must prove more likely than not.
Reynolds v. Texas and Pac. Ry. Co.- P stumbled down stairs that had no handrail and was not lightedWhen D’s negligence greatly multiplies the possibility of injury, the mere possibility of P’s negligence
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does not break the chain of causation. When you have a negligent thing that causes injury, you may infer
that negligent thing caused injury.
Kramer Service v. Wilkins- D injured when glass falls and cuts him. Cancer forms at site of cut. P must
deal in probabilities, not possibilities. P’s expert only testified it was possible cut directly caused cancer.
If no probable relation- no cause in fact.
Wilder v. Eberhart- After P offers expert testimony that injury was more likely than not b/c of negligence,
burden of proof does not shift to D. D must only produce other “possible” causes.
Herskovits- failure to diagnose lung cancer resulted in 14% lost chance of survival. P already had over
50% chance of death. But for test- failure to diagnose may not have been cause of death. Substantial
factor- easier to prove here.
2 different awards for lost chance of survival
1. value of entire life
2. value measured according to reduction of survival caused (here 14%)
Pittman: “But for, Substantial factor, and Value of Life don’t really work in this type of case. Only
thing that really works is awarding damages relative to loss of chance.
-MS Rule: If P already has 51% chance of death- no recovery.
Hamil v. Bashline- Ct held that once a P has demonstrated that D’s acts increased risk of harm to another,
that evidence furnishes a basis for the jury to determine if risk was a substantial factor. JURY!
-Attorney malpractice- to prove CIF- majority of jurisdictions require P to prove he would have won the
case.
Daubert v. Merrell Dow Pharmaceuticals- Court establishes 2 prong test for determining admissibility of
expert medical testimony:
DAUBERT TEST
1) Does testimony reflect scientific knowledge, where findings derived by the scientific method,
and does their work product amount to “good science.”
2) Fit requirement- proposed expert testimony must be relevant to the task at hand, and it must
logically advance a material aspect of the proposing party’s case. More likely than not the cause of
injury. (CA – must double – depends on jurisdiction)
Concurrent Causes- where two events occur to cause harm and either one would have been sufficient to
cause substantially the same harm w/out the other.
- Joint tortfeasors are said to be joint and severally liable.
- “substantial factor” test is used.
Hill v. Edmond- When separate acts of negligence combine to produce one injury, each negligent actor is
joint and severally liable.
Joint and Several liability- damages may be apportioned:
1. among the two or more parties responsible for the injury
2. to only one of the parties, at discretion of P
Anderson v. Minneapolis- two separate FIRES come together and burn down P’s property. Ct will use
“substantial factor” test in fire cases. Usually, both will be found to be a substantial factor.
-the rule of double liability applies only where each of concurrent causes would, by itself, bring about
substantially the same harm.
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Problems in determining which party caused the harm:
P bears burden of proof, but in some cases it is impossible to determine which D caused injury.
Summers v. Tice- quail hunting, 2 shooters, 1 injury. P doesn’t know whose bullet injured him. Both are
negligent. Which is liable?
***Alternative liability rule- burden shifts to Ds to absolve themselves. Ds are in far better position to
offer evidence. Both held liable. Similar to Yabarra(res ipsa).
-All those negligent will need to be joined as Ds to shift burden of proof.
-To apply Summers v. Tice, both or all Ds must be NEGLIGENT. If only one is negligent, rule
doesn’t apply.
Policy: Where innocent P is injured, he should not have to bear burden of injury.
Apportioning Damages When Actual Tortfeasor is Unknown:
-“Enterprise Liability”- Hall v. E.I. DuPont- Blasting cap injury consists of 6 mnf.- injury occurs from
cap, but P doesn’t know which exact manufacturer. Industry wide liability for defective products.
Burden shifts to Ds to prove they could NOT have caused injury to P.
Policy- Ds are in better position to allocate costs of injury and encourages public
safety.
Sindell v. Abbott Labs- P injured b/c mother took DES. Don’t know which of 200 producers made it. P
files suit against 5 Ds- represent 90% of market share. If Ds consist of substantial market share, it is
reasonable for Ds to bear costs of injury.
-Awards differ by Jurisdiction:
1. liable for percent of market share (maj. rule)
2. damages divided evenly b/t Ds in suit.
-Market Share Liability (Alternative Theory of Liability) is not extended beyond drugs very often.
Cause in Fact CONCLUSION: Two tests: but for and sub. Factor. Tend to get same results for both
tests unless you have fire case. Sometimes P can’t identify who was CIF. This is when burden of proof
may be shifted to Ds to prove away liability. May be done if both Ds are negligent, or if Ds represent a
market share.
PROXIMATE (OR LEGAL) CAUSE
Atlantic Coast Line v. Daniels- Despite being cause-in-fact, to be liable, must be Prox. cause.
Proximate cause- must be limits on liability- a policy determination that at some point your negligence will
be cut off.
-R. §434(2) uses “legal cause” for prox. cause.
-Px cause concerns a determination of whether legal liability should be imposed when a CIF has been est.
Policy decision.
Unforeseeable Consequences:
Ryan v. NY Central RR- engine sets fire to woodshed, then spreads to P’s house. Neg. person not liable
for remote results. Direct Causation- proximate cause limited to direct result. Policy: NY wanted to
protect the RR->important to state.
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-Jurisdictions differ over how far prx cause extends- policy- KS allowed liability for train fire that spread 4
miles. Farms are important in KS.
-Insurance is also important factor.
Bartolone v. Jeckovich- minor injuries in car accident, later accident formed to cause pre-existing
paranoid schizophrenia. D must take P as he finds him. Ct finds chain of direct cause.
-“Egg Shell” rule- take P as you find them, even if D didn’t know of P’s pre-existing condition.
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All Cts apply “egg shell” rule to pre-existing physical conditions, but only some apply it to pre-existing
psychiatric problems.
2 RULES:
1. Direct Consequences/ Hindsight view- unbroken chain
2. Foreseeability/ Foresight
(1)
Direct Cause Rule- consequences which follow in unbroken sequence, w/out intervening
efficient cause, from the original negligent act are natural and proximate.
Polemis- plank dropped, caused spark, ignited gas, destroyed vessel. Direct Cause Rule- an unbroken
chain of events stemming from D’s negligence. If any injury/damage is foreseeable, D is liable for all
injuries/damages that occur, even unforeseen.
-often attacked that it may result in limitless liability
Argument against direct cause: “remote,” “broken chain”
(2)
Foreseeability- would limit D’s liability to those results that are of a generally foreseeable nature,
both as kind of injury and as to person injured.
Wagon Mound I- boat negligently spills oil. Welders ignite cotton, floats into oil, fire. Ct. rejects
Polemis/ Direct Cause and applies reasonable foreseeability- limits liability to what the RPP would
foresee.
Wagon Mound II- ct relaxes I’s test, and holds injury must only be “in some way” foreseeable.
*Cts adopt 1 of 2 tests. Foreseeability is majority test. Analyze fact patterns w/ arguments for and
against both tests- Direct Cause and Foreseeability.
Palsgraf- man(X) gets pushed by guard and drops package/fireworks. Explode and cause scales to fall
thus injuring P. Is D liable to P for his negligence to X?
Majority (Cardozo): No liability to P b/c D was not negligent towards her. Not reasonably foreseeable
that she would be injured b/c package was ambiguous. Only foreseeable consequences may be
recovered for.
-Zone of Danger Risk- Duty owed to all w/in zone of danger- what zone one can reasonably
foresee a danger. Outside that zone, not duty is owed. Circle of Foreseeability.
Dissent (Andrews): If DUTY was owed to anyone, D is liable to unforeseen P. Almost argues direct
cause. Duty to act as RPP owed to society at large. Liberal opinion. There is a duty to protect society
from unnecessary danger.
Kinsman Transit- the fact that injury to a particular P was not especially foreseeable is irrelevant, so
long as P is a member of a class to which there was a foreseeability of harm. Also, precise manner of
injury mustn’t be foreseeable, so long as injury to that property was foreseeable.
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Yun v. Ford Motor Co.- spare tire falls off, P’s dad crosses hwy to get it, hit and killed. Case shows
that cts can differ about whether injury was “highly extraordinary” or “reasonably foreseeable”.
Juries may be better decision makers.
-------------------------------------------------INTERVENING CAUSES- PX CAUSE
Intervening Cause- a force which takes effect after D’s negligence, and which contributes to the
negligence in producing the P’s injury.
Superseding Cause- an intervening cause that is sufficient to prevent D’s negligence. They cancel D’s
liability.
Test: If D should have foreseen the possibility that the intervening cause might occur, or if the kind of
harm suffered by P was foreseeable (even if intervening cause wasn’t) D’s conduct will be prox. cause.
Derdiarian- employer didn’t put up proper barrier @ worksite to protect against cars from entering. A
driver has seizure, crashes into worksite injuring employee. Rule: 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 negligent.
 Risk was that car would enter work site and injure P. It doesn’t matter how that happens.
 The exact manner in which the accident occurred is not important if risk to be guarded against
materializes.
 Risk must be foreseeable, NOT manner in which it occurred.
 For a 3rd acts to be superseding, they must NOT be
o Foreseeable
AND
o Risk must not fall w/in original risk that was created by D’s negligent conduct
Superseding Acts- highly EXTRAORDINARY- not natural consequences of the negligence.
Intentional Acts- not superseding if they are foreseeable- e.g. high crime area.
-If P acts negligently, knowing of risk, his acts can be superseding.
-2 or more intervening causes may combine to form a superseding cause.
Acts of God:
a. unforeseeable= superseding
b. foreseeable= intervening
NOTE: there may be more than one prx cause of an injury.
Watson v. KY and IN Bridge and RR. CO- Gas tank car derails and spills gas onto road. 3 rd strikes match
and ignites flames which injures P.
 Intentional Acts
o Foreseeable  intervening
o Unforeseeable  superseding
 An intervening criminal act will be superseding only where it is unforeseeable.
 Look at what has happened in past, crime rate, RPP standard
 Notes 1, 2, 3, 4a – NF, b – NF, c – NF, d – F left to jury, 5, 6, 9
Normal Intervening Causes: may not be foreseeable, but are normal incidents of the risk the D has created.
Fuller v. Preis- car accident; later, injured P commits suicide. Prx cause is not cut off by suicide when
there is an IRRESISTABLE IMPULSE that may be traced back to the auto accident. Most cts are
skeptical of this rule. They make the distinction b/t whether or not person knew what he was doing. If he
knew, suicide is superseding.
 Some jurisdictions require (for superseding) suicide to be in “sudden frenzy”
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If doctors negligently treat a patient, that patient’s suicide will NOT be a superseding cause- Drs
have duty to prevent suicide
Notes 2, 5
Rule pg. 336 – 5th paragraph from top of page
Minority view
Rescue Doctrine:
McCoy v. Am. Suzuki- a D will be liable to a rescuer if a rescue is foreseeable and if rescuer is injured. If
rescuer is reckless he can be held liable
Notes 9,
2 principles seeks to enforce
1. Duty to impose liability upon manufacturer that runs to the rescuer
2. No assumption of the risk
4 elements to be rescuer:
 D was negligent
 Peril was imminent
 RPP would have concluded that peril existed
 Rescuer acted w/ reasonable care
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If P acts recklessly, rescuer can sue both P and D
For rescuer to be held liable, must be reckless. Public policy: encourage rescues
Rescue doctrine works for products liability  e.g. rescuer can sue negligent manufacturer of smoke
detector.
Firefighter Rule: bars professional rescuers from recovering from D so long as injury occurred w/in
scope of job.
Unless physician is grossly negligent, original D can be held liable for negligent treatment that was a
result of original injuries.
Being injured in ambulance accident en route to hospital is foreseeable- Original D liable.
D may be liable for subsequent injuries to P or rescuer if it can be proven that 2 nd injury(re-brake arm)
was b/c of weakened condition.
Dependent Intervening Causes- response to D’s negligent conduct- e.g. ambulance driver- something
that wouldn’t have been invoked had D not been negligent
Independent Intervening Cause- e.g. a 3rd who negligently runs into ambulance. Usually
superseding.
NOTE: if D is liable for some injury, it’s easier to extend liability, esp if extra injuries are dependent.
Original D will NOT be liable for injury caused by physician, if injury occurs to site NOT being
operated on.
Each is liable for what they cause---everything foreseeable.
Foreseeability- A D need not reasonably foresee the particular event that has occurred, so long as he
should have foreseen that some event of the same general nature might occur.
If the D created the risk, he is liable for foreseeable intervening causes or damages that are the normal
results of the risk. If the act of the original D is a substantial factor, lack of foreseeability will not
prevent liability.
Public Policy: even if injury is foreseeable, D may still not be liable for some public policy reason.
Kelly v. Gwinnell- while this ct did hold social host liable for DUI guests, MAJORITY RULE does not
hold social hosts liable for injuries caused by their DUI guests to a 3 rd party. Public Policy.
Reasons NOT to hold liable:
1) Difficult to determine if too drunk to drive.
2) Hosts normally drink too
3) Guests serve themselves
4) Hosts cannot pass cost of insurance on to anyone (like bars can)
5) Notes 3,4,5,6
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6) 5 – Most states reject the principle case. Most would not find host liable.
Social Hosts will be liable if MINORS are served
Dram Shop Acts hold bars liable if they serve visibly drunk person.
Some cts impose liability on employers—ex. work party.
Negligent Entrustment- loaning car to visibly drunk person- liable
Selling car, gun, or dangerous instrument to visibly drunk  liable
Enright v. Eli Lilly- DES case by granddaughter, who’s grandmother took DES. Rule: Grandmother and
mother can sue for injuries, but 3 generations is too far. Public Policy Reasons- promote creation of new
drugs.
 Doctor performing abortion-severs womb-is not liable to later born child b/c public policy---too
remote.
 Notes 4(A)(B), 5
o 4(B) – No. He would not be liable.
o 5 – Cannot sue publisher for publishing book
o 2 ways to show proximate cause
 1. Direct cause
 2. Foreseeability
Pg. 357 – (A)-(K) – better explains proximate cause
KNOW ALL TESTS FOR PROXIMATE CAUSE: Ryan - Palsgraf
JOINT TORTFEASORS
Bierczynski- Where 2 people are acting in concert, and are acting negligently, both are liable for Ps
injuries, even though only one may have caused injury. Cars drag racing.
 J and S liability- P can choose a D and collect 100% from him. P cannot collect 2 recoveries.
 3 ways Ds can be held J and S liable:
1. Acting in concert
2. Common duty owed to P- employer/employee; manufacturer/wholesaler
3. Ds who acted independently and caused indivisible harm
4. Note 4
5. Notes 3(A)(B)(D), 6
504-454-4626
Coney- Rule: J and S liability exists even in a comparative negligent regime. Rationale: Just b/c P was
somewhat negligent, she should still be able to collect all of damages. Burden of insolvency should be
placed on D.
Comparative Neg- P can collect amt of damages represented by Ds negligence
Contributory Neg- If P is even 1% neg., can collect NOTHING.
Bartlett- exact opposite of Coney rule. Rule: If P is comparatively neg., she can collect only severally
from Ds.
 MS has purely several liability
 Contribution only applies when you have J+S liability b/c w/ several, each tortfeasor is only
responsible for his %.
 In several liability state, jury will assess all tortfeasors percentage of negligence. Even absent Ds.
 Intentional Tortfeasors- some states assess % fault, others require him(if sole prx. Cause) to pay
everything.
 Immune Tortfeasors- In J+S liability state, other Ds required to pay immune’s portion. In Several
state, P is SOL.
 Notes: 1, 2 – trying to compare a system with J+S liability vs. a system with only several liability.
They work out the same unless one defendant has no money. 4, 5 – a case like the principle case with J
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+ S, the percentage of negligence of the absent defendant will not be calculated. Therefore, the present
defendant will pay 100 percent. Some states will consider the absent defendant’s negligence. Others
will not. 6, 8 – intentional act of assault is not a superseding act because it is foreseeable. The
apartment complex owner is still largely liable.
Restatement § 27: Majority of states hold J+S liability if Ds are acting in concert. But beyond that, trend
is towards S liability.
5 ways cts deal w/ Jt. Tortfeasors NOT acting in concert:
1. Pure J+S liability
2. Several liability
3. Several liability plus percentage share of insolvent D’s percentage fault- Insolvent % is reallocated
among P and Ds.
4. J+S liability when above a certain percentage fault- if below, several liability
5. J+S liability depends on TYPE of damages- ex. j+s only for economic damages.
Bundt- P can only rec’v one satisfaction of full amt of damages. The moment D PAYS, P has been
satisfied. Prevents double recovery.
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Once judgment is entered, P may not try to re-litigate for more damages –collateral estoppel
Notes 1, 2 – if plaintiff is unhappy and does not collect, they can continue to sue. 5, 6 – if jury
determines that plaintiff’s damages are ZERO, can the defendant #1 bring that to light and try to regain
his damages paid. 7, 8, 9 –
Settlements:
 In J+S liability state where D1 settles, D2 damages are:
o Dollar for Dollar- full amt. minus settlement
o % Fault- only liable for % damages he is responsible for.
 Non-settling D cannot sue settling D for contribution if state is dollar-for-dollar, and settling D got
good deal (unless collusion or bad faith).
 Both Ds do not have to be sued to be req’d to pay. D1 can later sue D2 for contribution. More
efficient to implead (Rule 14).
 A settling D is usually entitled to contribution if he paid more than pro rata share. Non-settling D
usually can’t seek contribution from settling D- supports policy to settle. Some states DO allow
nonsettling to sue- supports fairness.
A release of one joint tortfeasor is the release of another. A covenant not to sue is NOT a release of the
other tortfeasor.
Release and Satisfaction:
Cox- Rule: Settlement agreements that release 1 tortfeasor does not release all unless expressly stated
so(look at intent and language). The title and the reservation language are important. Common
law(MAJORITY RULE): release of 1 tortfeasor releases ALL. Important: Label you affix to your
document and reservation language(if you want to only release one D, must reserve right to others in
release language).
Depends on Jurisdiction: Sometimes you need certain language, other times only intent is looked at,
sometimes a release w/out reservation is only a release of that one D, other jurisdictions release all.
Pittman: regardless of language, w/out express reservation, all Ds are generally released.
***See NOTE 5 p 372 for rules of diff. jurisdictions.
7, 8 – if there is only one tortfeasor who enters into settlement and is released. Then damages
become worse after settlement. Can the plaintiff go back and sue for more? No. They can try to undo, but
cannot simply say they made a mistake.
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In some jurisdictions, the release of an agent, is a release of the employer. (doctor-hospital also)
Original D will be liable for original injury AND malpractice that occurred at hospital. If original D
settles, most states would not allow the successive D(doctor) to take advantage of the settlement- b/c
they were not acting in concert.
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Be careful when signing releases. If P messes up and settles for too little, and injuries later cost more
than she thought, she is SOL. Once you settle, that’s it w/ respect to any future manifestation of injury
UNLESS you can prove fraud, duress, etc.
General releases: “any and all persons and injuries now known or that will be known”- generally
enforceable.
Attorneys MUST advise client who they are releasing, if not, malpractice.
“Mary Carter” settlement agreements- D1 settles and promises to testify against D2 for P. P in return
promises to give settlement money back to D1 if P collects X number of dollars on D2. Strategy is to
collect lots of money from D2. Danger: D1 lies. D1 tries to keep his percentage low. NOT allowed b/c
allows settling Ds to gang up on non-settling D in ct- testify against, etc. MAJORITY RULE: Must
balance promoting settlements vs. collusion b/t D1 and P. Dissent: Doesn’t have problem w/ agreements
so long as jury knows. Pittman: Thinks they’re okay so long as jury knows about it/not secret.
Knell v. Feltman -Right to Contribution belongs to JT who paid judgment regardless of whether or not P
sued other JT. Rule 14.
Notes 3, 4 – half or percentage of fault, 5 – contribution is normally allowed between joint
tortfeasors, but not between intentional tortfeasors. 6 – if no JS, no right to contribution.
Yellow Cab Co. v. Dreslin- J+S liability state where one D was sued and paid all. Rule: D may sue other
tortfeasor for contribution for any amt paid to P who had RIGHT TO SUE that Jt. Tortfeasor that
wasn’t sued. A spouse has NO RIGHT to sue a spouse.
Immunity: Spousal, employee/employer
Notes 5 
A Jt. Tortfeasor who settles may seek contribution. Must prove:
o You and other Tortfeasor were J+S liable
o –AND—
o Amt settled for was reasonable
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In dollar for dollar jurisdiction, P will collect full judgment regardless of settlement amt.
Percentage set off jurisdiction- P will collect only pro-rata share from non-settling D.
Indemnity- wrongdoers who have unequal degrees of responsibility and require one primarily liable to
bear entire burden and compensate the one secondarily liable who was initially held to compensate P. Ex.
vicarious liability
Slocum- if release is given in good faith, that tortfeasor is discharged from liability for contribution to any
other tortfeasor.
 No contribution from D that settles (some jursd. DO allow b/c fairness trumps settlements)- must be in
good faith- to prevent collusion. Cts. are divided over whether or not “good faith” looks into adequacy
of settlement.
 Indemnity- allows indemnified party to get back ALL of what they paid. Ex. employer/employee.
 3 types of indemnification:
o Common law
o Statute
o K
Bruckman v. Pena- P involved in 2 separate accidents at 2 separate time periods. P can recover from Ds
only what P can prove. “Eggshell Rule” applies for D2. If injuries can’t be divided, D2 may be
responsible for all injuries. D1 will only be responsible for injuries caused in 1 st accident if they can be
proved. Must prove “more likely than not.”
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Concurrent tortfeasors are liable for full injury if both negligent.
Successive Tf- unrelated accidents- D1 liable for only 1st injuries; D2 may be liable for entire injuryeggshell
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Successive Tf- related- initial Tf liable for ALL, or can apportion.
NOTE: Apportioning damages for physical injury is not easy
Notes – 1, 3, 4
Michie- if Jt. Tf. create one single act/injury, P does NOT have to show P fault of each. If Ds want pro
rata, they have burden of proving it’s divisible. This was a concurrent act. If not concurrent, P must
show each % fault. Public policy decision to allow the plaintiff to collect even though he cannot prove one
specific thing that caused injury.
Dillon v. Twin State Gas – Man slips and falls off a bridge; When he reaches out to try to save himself, he
is electrocuted on wires. Should a court consider the value of the object or person harmed in relation to
potential harms which may reduce its or his value? Yes.
DUTY OF CARE
Zone of danger- must be in it to be owed a duty
Privity of K1. Non feasance- when K is not performed- no tort claim lies
2. Mis feasance- when D misperforms the K- tort claim usually lies
Winterbottom- old English case not allowing for claim b/c nonfeasance and no privity of K
MacPherson v. Buick Motor Co.- Allowed suit w/ no privity of K.
2 requirements:
1. Injury must be reasonably foreseeable.
2. User/injured person must be reasonably foreseeable.
Notes: 1, 2, 3 – once performance has started, defendant must continue in a non-negligent way, 4
H.R. Mock v. Rensselaer Water- Ct makes a policy decision not to allow a 3rd party beneficiary to a water
co. to sue—nonfeasance.
 It would be a misfeasance to have defective water.
 Note 3 – principal case is majority rule
Clagett v. Dacy- Attorneys owe a duty, and can only be sued by their clients and foreseeable 3rd party
beneficiaries- heirs under a will. Holding attorneys liable to adverse parties would create a conflict of
interest.
 Tort law frowns upon economic loss damages. Best way to get them is to sue under K law
 If the third party is intended to benefit, then there is a case. Otherwise, there is not.
o Wills
o Opinion letters
o Title Search
Notes 2, 3, 4 ,5, 6
Hegel- Rule: no duty on universities to regulate the private lives of their students. Otherwise, U would
have too much liability.
 U do have a common duty to keep buildings safe.
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Common law: No duty to rescue exists.
No privity of K exists w/ police/fireman until they begin the undertaking. Can’t sue if they show up
late-nonfeasance. CAN sue if they begin putting out fire, but screw up-misfeasance.
While AMA requires that doctors help, the law imposes no such duty unless a pre-existing relationship
exists.
Volunteer Protection Act (1997)- limits tort liability on volunteers to encourage.
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Ayers v. Hicks- ct creates exception to no duty to rescue rule. Exception: when you are master or invitor,
or when you control the instrumentality causing harm.
Notes: 4
3 exceptions that impose duty to rescue:
1) Voluntary Undertaking- once you begin, you must act as RPP.
2) Control of instrument causing harm.
3) Special Relationships
a. employer/employee
b. common carriers/passengers
c. innkeepers/guests
d. people having custody over children
e. jailor/ prisoner
f. owners/occupiers of land
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Duty of bar owners- no duty to act for things occurring outside bar, but duty to allow “good
Samaritan” to use phone to call for help.
Duty to rescue if you put someone in their situation of peril (even if innocently)
“Hit and Run” violates duty to stop and give aid.
Anytime a D assumes or undertakes a responsibility to act, and such undertaking increases risk, or is
relied upon, a duty to act may be imposed.
Merely having an emergency room may be an undertaking to provide care (to stabilize)
J.S. and M.S. v. R.T.H.- husband is molesting neighbors’ girls. If spouse has reason to know or actual
knowledge of a dangerous situation, duty exists to rescue 3 rd.
Factors to consider in determining whether to impose duty of care:
a) Special Relationship exists
b) Foreseeability: “particular knowledge” or “special reason to know”
c) There is a “particular P” or a “particular class of Ps”
d) Ability to control
e) Societal interest/public policy vs. burden on wife.
 Duty requires wife to exercise care of a RPP: warn of danger, call police, etc.
Notes: 2 – When defendant has special relationship to third person, defendant must control that person.
3 – When a duty is imposed, the standard is still one of reasonable care.
4 – Child molestation by a babysitter – no duty owed to parents of child because no prior
knowledge of propensity of baby sitter
(b) – One school system discharged a teacher for molesting a child but did not tell another school.
Tarasoff- If MD has reason to know of dangerous patient, he has a duty to warn the endangered party or
notify others to prevent crime. Public Policy: public’s interest is greater than right to confidentiality. VA
requires that D/MD has “taken control” of patient b/f duty exists.
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MD has duty to warn HIV patient’s known sexual partners- if unknown, must tell patient.
Balance patient’s confidentiality vs. Public safety or the safety of an individual.
o Notes 6, 7, 8, 9 – does lawyer have duty to warn if his client issues a threat against
someone? No., 10 – Human Genome Project – Does he have propensity for alcoholism,
etc? Should he tell the patient’s employer or wife about a gene for alcoholism?
Testbank- Majority Rule: no recovery for economic loss absent physical damage to a proprietary interest
(Robbins rule).
Don’t understand this. Damage must be foreseeable, but damage must also be different in kind for
all others.
Dissent- people should be liable for foreseeable injury they cause.
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Notes 4(a)(b)(c) – They would be able to collect.
(d) – No
5 – proximate cause can also cut off liability.
Daley v. LeCroix- Mental Disturbance- Rule: to collect emotional distress, must prove that physical
or mental illness is result of the emotional distress. Need physical manifestation. Why? To prove
damage actually occurred.
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Damage needs to be objectively determinable
Emotional distress damages can be collected for fear of future injury (cancer or harm)- difficult to
prove.
VA, a conservative jurisdiction, requires clear and convincing evidence that e.d. occurred.
Notes 1, 3(A)(B), 4(A)(B), 5, 6, 7
Thing v. LaChusa- child hit by car, mother sues for distress damages. Requires actual presence at scene of
accident. Rule on pg. 461 – Thing test
Notes: 1, 2 – child in therapy has repressed memories - , 4,
Bystander Rules- Different tests used by cts for emotional distress damages:
1) Zone of Danger- requires P to have been standing by injured
2) Foreseeability- Dillon test- requires foreseeability that bystander would be distressed. To
determine look at:
a. Proximity to the scene- only near
b. Observance of injury
c. Close relatedness.
3) Physical Impact Rule- common law rule-MINORITY- distinct physical impact required.
4) Thing test- a limitation on foreseeability rule. Requires:
a. P is closely related to victim
b. P is present at scene of injury at time it occurs, and is aware that it is causing injury
to victim
c. P’s reaction must be reasonable.
Exceptions to requirements:
1) Dead body cases
2) Telegram falsely stating someone died
Note: the above tests are for bystanders, NOT direct victims
Direct victims- are not required to go through above tests, they can sue regardless- e.g. mother/babyspecial relationships
Endresz v. Friedberg- Wrongful death action of unborn child. NY rule- no cause of action may be
maintained for unborn child b/c it cannot be a decedent(b/c it was never alive). MINORITY RULE.
Notes: 1, 2, 4,
Quicken- MS allows wrongful death action at this stage- when the baby starts to move in the womb.
Viability- other states allow coa here- point the fetus could live outside mother’s body if it had to (about 6
months).
Wrongful Life & Wrongful Birth:
Procanik v. Cillo- 2 coa brought
1) Wrongful Birth- mother’s claim against doctor- if she would have known of problems, would
have terminated pregnancy.
2) Wrongful Life- brought by child- claims he was wrongfully born.
MAJORITY of cts allow a claim for wrongful birth. Only 4 states (NJ, CA, WA, NY) allow a claim for
wrongful life.
Damages: Most cts allow extraordinary expense damages, and some allow emotional distress damages
for mother only. Minority allows mother to get entire cost of raising child.
Extraordinary expenses- medical care, cost to raise child in that condition.
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Notes: 1, 2
Owners and Occupiers of Land
Taylor v. Olsen- P/Landowner only owes duty to use reasonable care to persons outside his land.
However, if P has constructive notice of a danger, must warn. What would RPP do? Note: Artificial
conditions that create a danger that D knows or should know about requires further precaution.
Salevan v. Wilmington Park- bball park knew balls flew over fence, so they had duty to take precaution.
They took some, but issue is not, did they take enough? Use expert to testify what could have been done,
then weight RH+LH>B.
 Artificial condition of land increases duty
 Adjacent landowners to road must warn or protect of some danger on land in case driver enters land to
go around obstruction. Also sidewalks.
Sheenan- Trespassers- no duty is owed to trespasser until owner receives notice of them. It arises at the
moment of discovery.
Exception to no duty owed rule:
a) Actual knowledge of
b) Reasonable anticipation
c) Tolerated intruders- may become licensee
d) Dangerous conditions.
Licensees and Invitees:
Licensee- social guest- on land of another w/ consent of owner/occupier.
Duty Owed: To warn of known dangers, use reasonable care, refrain from willfully/wantonly
injuring.
Invitee- business or public purpose- on land w/ consent of owner for economic purpose for which promises
is held open. In business to buy or intent to buy in future. Normally invited.
Duty Owed: to inspect for dangers and warn or repair those dangers. Higher duty owed.
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Whether or not customer bought something is irrelevant, b/c they could become customer in future.
If invitee exceeds his invitation and goes to another part of the premises (storeroom), if the possessor
consents he is not a licensee(lesser duty owed), but if no consent he is a trespasser.
If landowner knows of unreasonable risk of harm to invitee, precautions may not be enough. May
need to fix danger. Warning sign probably won’t cut it.
Attractive Nuisance Doctrine- R. 339- A possessor of land is subject to liability for physical harm to
children trespassing if there is some:
a) artificial condition on the land
b) owners knows or has reason to know children are likely to trespass
c) children do not know of risk b/c they are young
d) Risk outweighs the utility
e) Owner fails to exercise reasonable care
Elements that must be proved:
1) Unreasonable risk of harm to children
2) Child will not discover risk
3) Child will play there
Age requirement(jurisdictions differ)
1) Under 12
2) Up to 14
3) Look at other children of that age
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Policemen/Firemen are dealt w/ 5 different ways
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i. Classified as licensees
ii. Classified as invitees
iii. Entitled to duty that some other person on premises at that place and time is
owed
iv. Separate classification w/ a special duty owed
v. Reasonable care under all the circumstances
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Other public officers, e.g. health inspector, safety inspector, are owed duty of invitee.
Rescuers are classified as persons they are rescuing.
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Minority Rule- Calif. in Rowland terminated the distinctions of persons on premises. The duty owed,
regardless of their status, is to use reasonable care to guard against harm to your guest.
Note: Majority rule is to look at categories w/ different SOC.
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Landlord/Tenant- The tenant owes a duty to people on his premises. There are six exceptions to this
rule, where the landlord will owe a duty.
1) Undisclosed dangerous conditions known to lessor and unknown to lessee- landlord
conceals harm
2) Conditions dangerous to persons outside the premises- e.g. tree rotting near highway
on rented land.
3) Premises leased for admission of the public- only liable for conditions existing at time
of transfer. After transfer, tenant liable.
4) Parts of land retained in lessor’s control which lessee is entitled to use- common
areas- reason: lessor is only one w/ control over areas.
5) Lessor who contracts to repair
6) Negligence by landlord in making repairs.
Pagelsdorf- Ct abolished licensee/invitee difference, and held that landlord owes duty to act as a RPP to
tenant and tenant’s guests. Note: if landlord had no access to building, would be factored in for notice
requirement.
Kline- tenant assaulted in common area of apartment building, sues landlord. Where a landlord has
notice that criminal activity occurred on the premises exclusively in his control(i.e. common areas),
he has every reason to expect like crimes to happen again, and has power to take preventative action.
Landlord will therefore probably be held liable although no common law duty is owed to protect
from criminal acts of a third party.
---Is the criminal act foreseeable? Issacs said you don’t have to show prior criminal activity, only that it’s
foreseeable.
Summary of chapter: Duty landlord or tenant owes to person on premises depends upon status of that
person. Later cases saw a merger of classifications, so that in some jurisdictions, the same duty to use
reasonable care is used in all. Then we looked at landlord/lessors and whether they are liable to guests of
tenants. CL rule- landlord has no liability once premises is turned over to tenant. See restatement rules of
exceptions where a duty is owed. Some states say that a duty is owed to guests of tenants even after
building has been rented. Then we looked at criminal areas. Common areas- reasonable duty if crime
foreseeable.
DAMAGES
3 Types:
1) Nominal
2) Compensatory
3) Punitive
Anderson- child badly burned when space heater ignited.
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1) Excessive verdicts can be reduced by remittitur---use maximum recovery rule
2) Different categories of damages:
a. Past Physical and Mental Pain- pain and suffering suffered from day of accident up
until jury verdict. No fixed dollar amount. Excessiveness determined on past cases and
awards.
b. Future Physical and Mental Pain- pain and suffering that will occur in the future.
Consider life expectancy of injured party, future med expense.
c. Loss of Wages- 2 types: past and future loss of wagesi. Past- look at time lapse from injury to verdict and determine how much has
been lost.
ii. Future- calculate life expectancy, then multiply yearly earnings for each year.
Must take inflation, raises, increased earnings into calculation. Lost wages need
to be discounted to the present value. For future, they need to be discounted to
present day- add in inflation, then discount to amt of money, that can be invested
at a certain interest rate, and will grow to inflated calculation. Why? b/c a
dollar today is worth more than in the future. It would be unfair to give her
inflated future wages, when she can invest the money to compensate for
inflation. Use ECONOMIST to get future value and present value w/ inflation,
etc. Even for children who’ve never worked b/f, jury can still put future lost
wages to a figure.
iii. Discounts- Pain and suffering is not normally discounted to present value.
Future loss of wages ARE discounted.
d. Permanent Disability and Disfigurement- prove by evidence.
Excessive Award- Richardson- To determine if jury award is excessive, ct decides if verdict shocks the
conscious of the ct. Generally, the more excessive the verdict is over the amount the expert testifies, more
likely to shock. P’s experts should, therefore, use liberal figures.
Notes: 12 – real interest method, 19 – compensatory damages gotten are not subject to federal income tax.,
24, 25 – states have done some things to control damages.
2 types of remittitur:
 Maximum Recovery Rule
 Shocks the Conscious Rule
 Grossly Excessive
Different types of damages:
 Past medical care
 Future medical care
 Past and future lost earnings
 Disability- note that this is distinguished from disfigurement.
 Disfigurement
 Pain and suffering
Rule: If the court thinks damages are excessive, they will grant remittitur
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Inflation- don’t forget that economist must factor inflation into damages.
Special Damages/Economic Damages- out-of-pocket expense, e.g. lost wages, med expenses (future
and past)
General Damages/Non-economic- pain and suffering, etc.
Future lost wages are reduced to present value. As are future medical expense calculations. However,
future pain and suffering is not usually reduced to its present day value b/c they do not have a precise
market value.
Fed’l Income Tax- not paid on any damages from D. If you invest that $, you will have to pay tax on
that, but not on the principle.
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Structured Settlement- payments over years. No income tax paid on that money. The principle amount
of a structured settlement is not taxed.
Interest on the $: different type of interest- many jurisdictions will award interest on money from the
D. You add what the jury awarded plus the percent interest on that to compensate. States do award
interest on verdict/$ you are given to compensate to money you could have had.
Additur- is unconstitutional b/c it adds damages to verdict- violates 7th Amd.
Collateral Source Rule- any compensation rec’d from any source collateral to the tortfeasor (insurance,
benefits, friend) are not used to reduce Ds verdict.
 Cts are now beginning to subtract collateral sources
 Collateral sources can now be considered by the jury.
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Loss of Consortium- claim made by spouse of injured.
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Attorneys Fees- Each side pays his/her own legal fees, unless statute otherwise states.
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Contingency Fees- Based on total amt of verdict/settlement. Some states allow only a certain
percentage. MS does not.
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Federal Tort Claim Act- allows one to bring suit against fed’l gov’t. Limits contingency fee to 25%
of verdict or 20% of settlement.
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Periodic/Structured Settlement- D can pay out verdict. It’s not taxable.
Zimmerman v. Ausland- When trying to decide whether P should be required to undergo surgery to
mitigate damages, depends upon what a reasonable prudent person would have done under same or
similar circumstances. Relevant factors include the risks of the procedure, the probability of success, and
the money and effort involved, and even the accompanying pain.
 P has a right to mitigate damages.
 Notes: 3,
 Original cost of necklace, etc. 550 – reasons to collect on heirlooms
Physical Harm to Property:
 Destroyed property- look at fair market value for location where damage occurred.
 Damaged property- look at difference in value b/f damages and after damages.
 Stocks, Bonds, and other things that fluctuate in value
o Rule of highest intermediate value- from time taken to trial, what is highest price
traded at.
o Rule of highest replacement value- value that P could have replaced goods forencourages mitigation.
Punitive Damages: 2 purposes
1) Deter
2) Punish
 Normally received only when Ds conduct is intentional or where D acted wantonly and willfully.
 Not for mere negligence.
Gryc v. Dayton-Hudson Group- p.j’s caught fire- punitive damages awarded. In order to assess punitive
damages in this jurisdiction, the test was that the D must have acted willfully and reckless. P must
prove this by clear and convincing evidence.
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No punitive damages for strict liability tort, unless you can show some prioir knowledge.
Normally, no punitive damages against a dead D’s estate b/c purpose is to deter and punish, and you
can’t do this to a dead guy.
Usually must show some compensatory damages b/f you can get punitive.
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Destruction of medical records in a medical malpractice case does not cause physical injury, but cts
will still allow punitive damages.
BMW v. Gore- a grossly excessive award of punitive damages, esp when inproportional to compensatory,
may be unconstitutional.
Damages can be excessive b/c:
1) degree of reprehensibility- evidence of intentional acts
2) Ratio b/t punitive and compensatory
3) If way more than sanctions for comparable misconduct- i.e. other criminal and civil penalties.
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Financial condition of D is sometime considered re: punitive.
If they have been criminally punished.
Cts often bifurcate trial b/t compensatory and punitive damages.
Many jurisdictions require clear and convincing evidence for punitive.
Some states require punitive damages to go to state b/c they are not really Ps.
Employer in vicarious liability cases are not liable for punitive damages assessed against employs
unless employer authorized conduct or if employer was reckless.
Price v. Hartford- insurance policy didn’t exclude coverage for punitive damages, they were required to
pay them.
Majority Rule- D must always pay b/c they are to punish.
Minority Rule- Insurance must pay punitive if not contracted out.
DAMAGES
Contributory and Comparative:
Contributory Negligence: if P was even 1% negligent, he is barred from recovery. Today, only 5
jurisdictions have this. D has burden of proof. This is an affirmative defense. If D committed an
intentional tort, or was willful, wanton, or reckless, contributory negligence is not used. States differ over
whether strict liability prevents the aff. defense of contributory negligence.
---Strict liability situations come up w/:
Abnormally dangerous activities
Defective products.
Last Clear Chance Doctrine: A defense to contributory negligence. Even though P may have been 99%
at fault, because D had last clear chance to avoid accident, he is not barred from recovery. Allows P to
collect despite contributory negligence. See Davies v. Mann
Comparative Negligence: the principle that reduces P’s recovery proportionally to the P’s degree of fault
in causing damage, rather than barring recovery completely. See McIntyre. The majority of states (all but
5) have switched over to this rule. States have different types:
 Pure form of comparative negligence: P is allowed to recover damages against D, to degree of Ds
negligence. Even if P is 99% negligent, he can still collect 1% from D. MS has this type.
 Modified Comparative Negligence:
o Less than D’s % negligent- P’s negligence must be 49% or less. If it’s 50% or above, P
has no recovery here. TN adopted this kind.
o More than D’s % negligent- P can be 50% and recover, but if P if 51% or above, cannot
collect anything.
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Comparative negligence does away w/ need for last clear chance doctrine. No need b/c jury can
allocate the negligence to various parties.
When multiple Ds in a modified comparative state, aggregate all Ds’ %s to determine if P’s percent is
less or equal to.
This doesn’t mean P has J+S liability. The Ds are severally liable.
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In Ds were acting in concert, probably will have J+S liability.
In comparative negligence state w/ no J+S liability, no longer right to contribution b/c no D will ever
pay more than his pro rata share.
Jury still considers an absent Ds % fault.
Not all states that adopt comparative do away w/ J+S. Pittman thinks it should still be used for certain
circumstances, e.g. indivisible injuries.
Comparative negligence is NOT used if D was acting intentionally, willful or wanton.
If P is minor or mentally impaired, P’s % fault will not be factored into comparative negligence.
Assumption of Risk
Express- either written or oral- P expressly states that she some how assumes the risk of the Ds
negligence. Can be done by signing a release. This releases the D from all liability and all claims
concerning any negligence that occurs from D. Express release does not violate public policy. Exceptions
when it does violate public policy: (from Tunkl case)
1) Subject matter- is it the type suitable for public regulation, e.g. medical care.
2) Is subject matter of great importance to public?
3) Is the service available to the public?
4) Was there unequal bargaining power?
5) Is K an adhesion K?
6) Did D violate a statute enacted for benefit of P? e.g. child labor laws- not usually
allowed to assume risk.
 Types of releases that would be against public policy: public utilities, common carriers, innkeepers,
public warehouses, parking lots.
 When analyzing assumption of risk:
1) Look at written document: does injury incurred fall w/in scope of risk expressed in
agreement?
2) If so, does release K violate public policy?
Notes re: AOTR
 Lawyers/MDs cannot make client sign AOTR Ks
 2 merchants can sign if have equal bargaining powers
 Stowaways assume risk
 Express AOTR can be oral or written.
Implied- Any factual situation where the P consciously and voluntarily places himself in a position where
he is subject to a known risk. P must know and appreciate the risk of harm. Must voluntarily encounter
risk. Rule: If P did not voluntarily assume the risk, then the defense of AOTR does not apply.
 Elements to prove AOTR:
1) Knowledge of risk- can be shown by direct or circumstantial evidence (constructive notice)
2) Appreciated magnitude of risk
3) Voluntarily encountered risk- rescues are not voluntary in legal sense. If there was no
alternative route, P’s act cannot be seen as voluntary
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Many jurisdictions have gotten rid of AOTR for comparative negligence. This prevents P from being
totally barred, and allowing him to collect D’s % negligence.
Wearing seatbelt- some states reduce P’s recovery by 5%, other’s reduce comparatively as jury decides
%. Also, motorcycle helmets.
Statute of Limitations: SOL does not begin to run until there has been some damage. The possibility of
future damages is insufficient. W/ re: to medical malpractice cases, the SOL will begin only when the P
has or should have discovered the damage.
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Negligent suits have 2-3 year statute of limitations. From what? Most states say from date
of injury. In the best case scenario, on Day 1, you would know that you have been injured.
But sometimes, it takes time to learn that you’re injured. E.g. malpractice.
To avoid harshness, cts adopt the discovery rule- P has 2 years from date of injury to bring
suit. Date of injury is determined by date that P discovered or should have discovered
injury. Whichever is later will be used.
Most states have this rule in the SOL.
D must know all of the elements b/f the statute of limitations begins to run.
Intentional Torts- generally short- 1 year
Negligence- generally 3 years.
MedMal- 2 years- b/c of lobbying by special interest groups
Breach of K- generally 6 years.
For continuing torts- SOL begins after last incident of abuse.
Latent Defects in Houses- some SOL begin on date constructed, some begin upon discovery,
some states have special SOL for this
Attorneys are treated like medical malpractice- SOL begins when client knows or should know of
injury.
Tolling- MS SOL is 2 years from date of injury or 6 months from discovery.
Tolling for Minorso 7 years from date of injury
o Tolled until age of majority-18 or 21- then SOL begins to run
Tolling for Fraud
Only 1 COA exists against D. If additional injuries are discovered after trial, tough shit. Res
Judicata.
Statute of Repose- generally 20 years- after that time, no suit can be instated for defective product,
even if malfunction has not yet caused damage.
Immunities:
1) Husband/Wifea. Common Law Rule: no suits against spouse
i. Rationale:
1. husband/wife one entity
2. would destroy marital harmony
3. would encourage divorce
4. May cause collusion to defraud insurance co.
5. Legislatures duty to change
ii. Exceptions for some jurisdictions that retain CL rule:
1. After divorce, may sue for torts occurring prior to and sometimes
during marriage
2. Can sue if either spouse is dead
3. Can sue if tort occurred prior to marriage, even if still married.
4. Intentional Torts
b.
Majority Rule: No inter-spousal immunity.
i. Some states that have repealed the immunity retain it for automobile
collisions, to prevent collusion.
2) Parent/Child Immunity: only applies to acts occurring while child is minor. Once over age of
majority, neither is barred from suit.
a. Rationale:
i. If allowed, will destroy harmony/integrity of family
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b.
c.
d.
e.
ii. Will lead to fraud/collusion
iii. Will deplete family resources.
Majority Rule: Abrogated the immunity. Insurance exists to cover costs, and cts don’t
think it will destroy family relationships(at least any more than they already are).
Minority Rule: Only 8 states still retain the immunity. Those that do have exceptions:
i. Some retain immunity w/ exceptions:
1. Father kills mother, then commits suicide in front of child- child can
sue father’s estate.
2. Acts that completely abandon parental relationship- sexual abuse,
assault/battery, child abuse.
ii. Some states that retain the immunity, but only do so for parental
supervision- what sports child can play, what they eat, wear, do, etc. Cts don’t
want to look over parent’s shoulder.
iii. Intentional or willful/wanton conduct
iv. When either parent or child dies b/f suit
v. Actions for wrongful death
vi. Step-parents
vii. Legally emancipated children
viii. Automobile accident cases where relationship is coincidental to the conduct.
SOC required:
i. General Negligence- RPP for ordinary acts.
ii. Parental Supervision- must show parent did something intentionally or grossly
negligent act.
MS S.Ct. was first to establish parent/child immunity, but has since abrogated it.
3) Charitable Immunity: designed to protect charitable organizations from negligence, not
intentional acts.
a. Majority Rule: Charitable institutions can be sued like any other institution
i. Rationale:
1. Corporate entities bringing in millions
2. Have insurance to cover liability
b. Minority Rule: Retains charitable immunity
i. Rationale:
1. Receiving charitable care waives right to sue
2. “Trust Fund” doctrine- donations are made to support charity, not to
pay lawyers fees.
c. Some states abrogated the immunity, but cap damages. These are found in state
statutes.
d. Other states retained the immunity, but allow damages for intentional torts.
e. Some states have abolished immunity for charitable hospitals, but retained for
religious organizations.
f. Some states only allow people receiving benefit from charity to sue.
g. Some states allow suit for only non-trust fund monies
h. Some states limit damages to the extent that the D is covered by liability insurance.
4) Employer/Employee Immunity: states require employers to have workers comp insurance.
Workers Comp covers injury that employee receives, so long as employee is injured during the
scope of employment. Employee can recover whether employer was negligent or not. In return,
employee waives his right to suit.
a. Exceptions:
i. Intentional Torts by Employer
ii. Employer who does not obtain workers comp insurance- contrary to state law.
5) Government Immunity
a. Majority Rule: no longer exists- can sue local gov’t or gov’t agency.
i. Exceptions:
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b.
c.
d.
e.
f.
g.
h.
i.
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1. Only allowed suit if gov’t entity has insurance.
2. Damages are sometimes capped
3. SOL is often shorter
4. Notice of suit is often required
Minority Rule: keeps gov’t immunity
i. Policy Reasons:
1. Too many lawsuits would occur
2. No money to pay damages
3. Better for individual to take loss than state.
MS has abrogated gov’tal immunity, but has statute that caps money damages. Must
show that municipality has insurance to cover.
Proprietary v. Governmental: some states only allow gov’t to be sued for proprietary
functions.
i. Proprietary- water service, sewer service, construction
ii. Governmental- decisions made, how many troopers to hire, where to build a
bridge.
Ministerial v. Discretionary: Ministerial functions can be sued for, no discretionary.
i. Ministerial- sweep sidewalk, snow removal, etc.
ii. Discretion- decisions re: police, location of lights, amount of money to spend.
State statutes often lay out degree of gov’t immunity
Fed’l gov’t has abrogated immunity by the Federal Tort Claims Act
Note: Can’t sue gov’t for failure to provide police protection b/c they owe duty to public
at large, not you specifically.
However, once police assume a duty, but act negligently, can be liable.
5 affirmative defenses the D can make:
i. Contributory Negligence
ii. Comparative Negligence
iii. Assumption of Risk
iv. Statute of Limitations
v. Immunities
Go through Each individual plaintiff and defendant. Give facts on plaintiffs, not
defendants yet.
Make general comments defi’ning Duty, Breach, Causation, and Damages and stating
that all must be proven. Also, here explain Standard of care. hen
Go through individual duties owed by defendants.
Try to argue both sides of the following questions –
Duty – (1) Judicial Decision – Do they like it? Is it common experience? (2) Violation of
statute – is person within statute? Does injury count as one that is guarded against? – look
at language of statute plus legislative history. If not within statute, duty is RPP. (3)
Common Law (RPP) – Would a reasonable person do this?
Breach – Statute – obvious; RH + LH + BP –
For Cause-In-Fact –
Describe But for
Describe Substantial Factor
Show difference between the two
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Then apply to the facts.
J&S Liability or not?
Contribution?
Blake Smith – 662-801-3498
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