I. Intentional Torts
A. Assault
1. Actor intends to cause "harmful or offensive touching" with the person of the other or a third
person or imminent apprehension of such a contact; or
2. if the actor knows with substantial certainty that the action will cause apprehension of a
harmful or offensive touching; and
3. the other is put in such imminent apprehension.
a. Apprehension is different from fright - you don't have to be actually scared (can use
self-defense).
b. It is sufficient for apprehension that the π know that the harm will occur unless something
else occurs to intervene.
c. It depends more on the apprehension created in the mind of he person assaulted than upon
what may be the intent of the person committing the assault.
B. Battery
1. Actor Intends to cause unlawful harmful touching, or knows, or should know, with
substantial certainty that his actions will cause such harm.
a. Intent to commit act is what controls not the intent to cause harm.
i. Ex: Boy who puts rubber ball in pool drain he mistakenly believes to be not sucking is
liable.
b. Transferred intent - intent to commit harmful act is transferred to a third party who is
struck inadvertently.
c. Substantial certainty - Ex: boy pulls chair out from under old woman as she sits.
2. π does not consent to the touching.
a. Implied consent - arises from circumstances.
i. Ex: victim of accident has implied consent to emergency medical services.
ii. Ex: kids playing on playground have implied consent to foreseeable injuries.
iii. Counter Ex: doctor is liable when he performs surgery on left ear when patient
consented to right ear.
b. Substituted consent
i. Ex: a parent or guardian can consent for a minor or incompetent to undergo surgery.
ii. Can be overridden if induced by fraud or non-disclosure of material fact.
c. Duty of Disclosure - true consent can not be given in absence of all material facts.
i. Ex: Doctor must disclose reasonable risks and benefits involved in medical treatments
and non-treatments.
d. Volunteers cannot recover for the reasonably foreseeable injuries they incur.
i. Ex: Illegal prize fighters cannot recover from each other, but may recover from the
promoter as the driving force because they are the intended class of persons to be
protected.
ii. Ex: Football player can recover from blatant injuries contrary to the rules which are not
inherent risks.
II. Nonconsensual Defenses
A. Insanity
1. Insane persons can be held liable for intentional acts, epileptics are not held liable for
uncontrollable acts because as between two innocents, let the actor bear the burden, and
guardians of insane persons can be deterred.
B. Self-Defense
1. Actor must be in imminent apprehension of receiving great bodily harm.
2. If the actor wounds a third party inadvertently while taking reasonable steps to defend
himself, there is no liability.
a. Ex: shop owner purposefully shoots cop who he thinks is a rioter coming to get him.
C. Defense of property
1. Force may be used to repel actual force.
2. Force may be used to repel intruders when they fail to desist after being requested to stop.
3. Force intended to cause grievous bodily harm.
a. Policy: replaceable property is not as valuable as personal safety.
b. Booby traps or spring guns cannot be used solely to protect personal property because
they do not discriminate between innocent trespassers and thieves.
c. Deadly force can be used to protect dwelling places because if the owner were home, he
could reasonably construe the breaking and entering to be an assault.
d. Force may be used to protect property which is not replaceable and has enourmous social
benefit. Ex: cure for AIDS where there is only one vial.
D. Recapture of Chattels
1. Force is not authorized to get property back from a person who peacefully possesses your
property under mistaken claim of right.
a. Policy - a victim cannot be the arbiter of his own claim, public order and peace are of
greater weight, right of defense but not redress.
b. Ex: employee who takes $50 back pay from payroll cannot be beaten-up by his employer.
2. Peaceful repossession is allowed when done in "hot-pursuit" against someone who has taken
under fraud, force or without claim of right.
E. Necessity
1. Actor who cannot control his movements while exercising a strict right.
a. Ex: mooring a boat to protect life and property during a violent storm is not unlawful.
2. Actor may be liable for damages while protecting his own more valuable property at the
expense of another's.
a. Ex: cargo ship moored to dock during storm damages the dock.
b. "Incomplete privilege" - ∆ may cause harm if he pays for it prevents "Unjust enrichment"
where the cargo ship owner walks away unscathed.
3. "Public Necessity" -a public official may act with immunity if he damages a person's property
to benefit the public at large.
III. Strict Liability v. Negligence.
A. Policy
1. Strict Liability
a. ∆ internalizes the costs imposed on others as if he were the injured party (as between two
innocents...)
b. Eliminates difficulty in determining "standard of care"
i. Reduces litigation costs in individual cases; however
ii. Gives incentives for more lawsuits, raising costs overall.
c. Net transfer of wealth from class more likely to reinvest it to a class of victims.
2. Negligence
a. π internalizes the costs he would not have avoided.
b. Requires determination of "standard of care" and "reasonableness".
i. increases cost of litigation in individual cases.
ii. reduces number of lawsuits because costs of litigation outweigh expected
compensation.
c. Wealth remains with class who is productive and takes reasonable calculated risks.
B. Strict Liability
1. Rylands v. Fletcher
a. An actor is strictly liable for trespass, even if he was morally innocent and had no
knowledge that his actions would cause damage. - Judge Bramwell at court of Exchequer.
b. A person who for his own purposes brings on his lands and collects anything likely to do
mischief if it escapes is prima facie liable for all damages which are the natural consequences
of its escape. - Judge Blackburn at court of Appeals
i. Proper defenses are contributory negligence, and Acts of God.
c. A person who uses his land for any non-natural purpose, and in consequence of doing so,
causes damage to another's property, is liable for the damages arising from the non-natural
use. - Judge Cairns at House of Lords.
i. Building owner is not liable when third person causes plumbing to overflow because
indoor plumbing is necessary in modern society and not non-natural. Non-natural means
not ordinary.
2. Respondeat Superior - an employer is strictly liable when his employees are liable (either
strictly or negligently) for damages that they caused while in the course of their employment.
Does not include private contractors.
C. Negligence requirements- Duty, Breach, Causation, Damages.
D. Standard of Care determination
1. Objective Standard - did ∆ act reasonably under all the circumstances?
a. more likely to take into account practical circumstances when actions can be deterred.
ii. Ex: blind person will not be held liable for his lack of sight because his blindness can't be
deterred.
b. Brings substandard behavior up to the average level because general public safety
demands it, otherwise stupid people have built-in defense.
c. Beginners held to an average skill standard because of public reliance and safety.
d. Children a held to an adult standard when they engage in dangerous adult activities. - Ex:
teenager driving a car, operating heavy equip., shooting a gun.
2. Subjective Standard - did π act in good faith?
a. Difficult to determine mindset of actor.
b. Policy - do not deter heroism, do not penalize reliance.
3. Foreseeability - negligence not strict liability.
a. Sudden medical afflictions are not foreseeable - Ex: heart attack while driving, therefore no
liability.
b. Recurring medical conditions are foreseeable - Ex: sudden mental delusion while driving
creates liability only when there is a history of mental delusions.
c. Protecting the disabled - persons are required to take reasonable precautions to prevent
harm to those who cannot protect themselves due to physical disabilities - Ex: blind
pedestrian falls into un-barricaded hole in sidewalk.
d. Valid lack of knowledge precludes foreseeability - Ex: honking horn in good faith to warn
ships is not negligent.
E. Cost-Benefit (Economic) Theory of Negligence
1. Actor is liable if he fails to take precautions where B < P*L (Hand Formula).
a. Ex: barge owner fails to man his barge during daylight in a crowded port - high degree of
risk, low cost of labor in comparison.
b. Problems with strict application of this formula:
i. Forget to calculate all possible precautions.
ii. Forget to calculate all possible injuries.
iii. Units discrepancy.
iv. Marginal precautions- it may be that only the first $100 spent was worth the benefit
gained, even though $150 spent still satisfies B<P*L.
v. Assumes a risk neutral person with full knowledge of the costs/benefits.
2. Don't have to take precautions for which the costs outweigh the benefits.
a. Ex: power lines fall on telephone lines and cause shock - too remote a risk, too expensive to
prevent.
b. Ex: person falls and burns face on steam pipes under a sink - too remote a risk, not liable
for unforeseeable uses.
F. Custom Theory of Negligence
1. Precautions that others in the profession deem necessary.
2. Most representative of good cost/benefit analysis when the custom involves competitive
businesses, or one's own safety, but not the safety of strangers.
3. Difficult to determine how to group the profession - frame grouping so as to minimize losses
and costs while mazimizing deterrence.
a. Ex: Doctors are held to national standard rather than local standard of care because of
modern access to technology.
b. Ex: Should tugboats carry weather radios if they are local tugs, tugs of a certain size, cargo,
time of day, etc.
4. Custom may be used as evidence of reasonable care but is not the strict measure of reasonable
care.
a. Ex: Opthamologist not performing inexpensive glaucoma test on persons under 40. (risks
outweigh the costs.)
b. Ex: Doctor must inform patients of all risks that would affect a prudent patient's decision
to undergo surgery, even if his custom is not to inform so he won't scare the patient.
IV. "Per se" Negligence.
A. Negligence becomes a question of law not fact for the jury.
1. Policy - judgment of legislature deemed probably more wise than judgment of an individual
or a jury.
2. Policy - reliance on the presence of a stop sign, whether or not it is reasonable.
B. Violation of a statute is negligence per se, unless it can be excused by circumstances such as
necessity.
C. The violation of a statute that is technically defective is still negligent because it still represents
good social benefit.
D. Old statutes that are no longer enforced are not strict measures of negligence.
1. Policy- Evidence that the ordinary person's judgment was correct over the judgment of the
legislature.
2. Policy - there may be reliance on the violation of a statute- Ex: persons crossing a yellow line
before they turn because it helps them see better.
E. Only the class of persons intended to be protected by the statute (either express or implied in the
statute) can recover and only for the character of injuries it was designed to prevent.
F. Violation of a statute is not negligent if it following it to the letter would put the actor at a
greater risk because legislative intent was not to increase risk.
G. Violation of the statute must be proximate cause of injury.
1. Just because a license is required does not mean that practice without a license is per se
negligence.
a. Ex: operating a car without a driver's license is probably not per se negligence.
i. Policy: It is easy for a jury to find if a driver is acting negligently, with or without a
license, because they all have common driving experience.
b. Counter Ex: practicing medicine without a license is probably per se negligence.
i. Policy: It is very difficult for the trier of fact to determine negligence in medical cases, so
a bright line is drawn.
ii. Policy - the legislature thought it so important to regulate the activity that it absolutely
prohibited the unlicensed practice of the activity, even though some unlicensed persons
may never injure another.
2. An actor may be liable for violation of a statute even if the actual injury is directly caused by a
negligent third party.
a. Ex: a person who leaves his car unlocked may be liable for damages caused by a thief policy is to protect others from negligent behavior of thieves and children.
b. Ex: a host or bartender may be liable in some states for serving alcohol to an intoxicated
person who later injures another due to his drunk driving.
i. hinges on whether the proximate cause is the serving of the alcohol, or the consumption
by the drinker.
H. A statute that requires determination of reasonableness does NOT aid in a per se negligence
case because the same burden of proof (reasonableness) is required to prove negligence.
V. Judge and Jury (Negligence as a matter of law vs. fact)
A. Policy: sending a fact pattern to a jury is risky because they might return a verdict contrary to
established principles of law.
B. Judge determines negligence when it is a question of law.
1. Judge can determine what conduct is prima facie evidence of negligence if there is no
question of fact of whether the conduct happened or not.
2. An experienced judge should be able to determine many questions of negligence without
needing the assistance of a jury.
C. Jury determines negligence when it is a question of fact.
1. Sometimes courts need the assistance of the experience of the community (a jury) to
determine negligence as a question of law.
2. According to Holmes, once the jury decides a particular fact pattern is evidence of negligence,
then it should become a settled matter of law thereafter, and so not be left to a jury.
a. Ex: it is well established that a person crossing a railroad track should stop, look, and listen
for a train coming.
3. However, according to Cardozo, when taking the negligence determination from the jury's
hands, the court must be careful to base their rule on standards of common experience.
a. Ex: a person should not have to be required to get out of his car and walk down the tracks
to see an oncoming train, only to do what would be ordinarily prudent under the
circumstances.
4. When in doubt - go to jury.
VI. Res Ipsa Loquitur (the thing speaks for itself)
A. Aids the π in recovery where he cannot prove negligence because he has circumstantial
evidence.
B. Requirements for res ipsa loquitur (Prosser)
1. Must be something which ordinarily does not occur in the absence of someone's negligence.
a. Ex: barrel of flour falling out of storehouse window onto pedestrian below.
2. Caused by someone or something under the exclusive control of the ∆.
a. Ex: a hoist carrying the barrel, operated by ∆'s employees.
b. Counter Ex: an act of God, such as a sinking ship.
3. There must be no contributory negligence.
C. An action related to res ipsa loquitur may be brought against several ∆'s, if there is a "conspiracy
of silence" among the ∆'s.
1. Ex: In Ybarra, the patient was allowed to bring suit against several doctors and nurses,
because they collectively had exclusive control of his body, even though they did not
individually have exclusive control over his body at all times. No Respondeat Superior because
they were independent contractors.
a. Policy: to allow a π to get a "foot in the door" so that he can use the power of the court to
break up the conspiracy of silence among colleagues.
VII. Contributory Negligence
A. When the injury would not have happened without negligence on the part of the π, the doctrine
of contributory negligence used to be a complete defense and a bar to recovery.
1. Not a defense to an intentional tort.
2. Must still show CAUSATION.
a. Ex: When a worker continued to work, and failed to notify his supervisor, even though the
fishmeal sacks were stacked dangerously, he could not recover if it could be show that the
supervisor would have done something if told.
B. Property Rights: LeRoy Fibre (flax stacks)
1. The property rights of a π cannot be limited by the anticipated negligences of a ∆, so not
contributory negligence. - Justice McKenna's rule.
2. Although a π may have the right to use his land in any legal way he wishes, the ∆ is liable for
damages only if the π has made a reasonable use of his own land. - Justice Holmes' rule.
a. Policy: Just because we protect property rights doesn't mean we should provide a tort
remedy for careless property use.
3. Coase's Theorem: Neighboring parties have "reciprocal duties" to avoid harm to each other. If
each party were left to negotiate among themselves, in a perfect market, with no transaction
costs, they would reach the most efficient precautions. They would take into account not only
the value of what is to be saved, but the cost of saving it. The least cost avoider would pay for
the precaution.
a. Ex: A candy maker makes so much noise that it disturbs the doctor's office next door. The
social interest is to have better doctor's services, so the candy man would restrict his mfg'ing
as the least cost avoider.
b. Policy: Doesn't work well in real world because of high transaction costs and parties being
strangers before accident.
C. Avoidable consequences - a π who fails to take ordinary precautions to minimize his own
injury - does not mean contributory negligence because it didn't cause the action, only increased
the damages.
1. Ex: patient who does not go to the hospital to seek treatment may only recover for damages
that were a direct cause of the accident, and not due to the delay in treatment.
2. Ex: person who does not wear seatbelt may have his collision damages reduced because the
custom of wearing a seatbelt could be weighed by a jury very heavily.
D. Last Clear Chance is a response to the defense of contributory negligence.
1. Policy: We do not want to reduce the incentive of a person to be careful just because someone
else has placed himself at risk first.
2. A helpless π who had negligently submitted himself to a risk of harm from the ∆'s subsequent
negligence may recover for harm caused thereby if, immediately preceding the harm:
a. the π is unable to avoid it, AND
b. the ∆ is negligent in failing to avoid it when he:
i. knows of the π's situation and peril; OR
ii. would have discovered the π's situation and peril if he were paying attention.
3. An inattentive π, who by the exercise of reasonable vigilance, could discover the danger
created by the ∆'s negligence in time to avoid it, can recover if, but only if, the ∆:
a. actually knows of the π's situation, AND
b. should know that the π is inattentive and therefore unlikely to avoid the harm, AND
c. thereafter is negligent in failing to avoid the harm.
4. Ex: a subway train driver is liable when he fails to stop the train and investigate the
emergency stop, and a transient is killed by the train as it keeps going.
5. Policy: Provides a relaxation of the complete bar of contributory negligence when the ∆ could
have most easily (and therefore most economically) avoided the harm.
VII. Assumption of Risk - a defense to negligence.
A. Three classical elements:
1. π had knowledge of the specific risk.
2. π appreciated the magnitude of the risk.
3. π voluntarily and freely encountered the risk.
4. NO requirement for negligence by π.
5. NOT a defense to an intentional tort.
B. How broadly should the phrase "specific risk" be interpreted. It depends on how well known or
generally understood the risks are and is a task for jury.
1. Ex: A person who falls while stepping onto an amusement ride would be barred from
recovery if the injury was due to a risk inherent in the ride, but not if the ride suddenly jerked
violently (or blew up).
2. Ex: Being hit by a foul ball at a baseball game would be foreseeable, but being hit by a stray
golf ball while standing in a concession line may not be.
C. There are 4 facets of behavior that are normally grouped under assumption of risk:
1. The π contracted out of recovery.
a. Ex: A person signs a waiver form that explicitly limits recovery when obtaining a risky
service. (Obstetrician requiring binding arbitration, dry cleaner claiming they are not
responsible for damages).
2. Plain old contributory negligence. - π negligently subjects himself to harm.
a. Ex: person at a skating rink continues to skate and is injured even after they become aware
that the ice is too slippery.
3. ∆ did not owe a duty in the first place.
a. Ex: kids playing catch with a ball and one is hit in the face.
4. ∆ is negligent, but the π is not contributorily negligent in assuming the risk anyway.
a. Ex: Man darts out in front of runaway train to save a child.
IX. Comparative Negligence
A. Li v. Yellow Cab - a π may recover damages from an injury caused by the negligence of the ∆,
even if the negligence of the π was a contributing cause to the injury, but the amount of the
recovery shall be reduced proportionally by the amount of the π's negligence as compared to the
∆'s negligence.
B. Explicitly absorbs the last clear chance and assumption of risk rules. Now the π's negligence
becomes a matter of fact for the jury to put a number on.
C. Exceptions to the comparative negligence doctrine.
1. Strict liability actions still result in full recovery.
2. Does not apply when the ∆'s negligence is reckless or wanton, because the ∆'s negligence
would be of a different kind rather than simply a greater degree.
3. Does not apply to intentional torts.
a. Ex: a negligent person wandering into the highway may get a full recovery against a driver
who intentionally runs him down.
4. Does not apply when the π has contracted out of recovery.
D. Uniform Comparative Fault Act:
1. Fault is split only among the parties to claim at the trial, both π and ∆s.
2. Each of multiple ∆'s could pay the maximum under joint-and-several liability.
3. An uncollectable judgment shall be reallocated among the remaining parties (including the π)
according to their respective percentages of fault if motion is made in 1yr.
4. There is no set-off of judgments except upon agreement of both parties.
5. Where one party is insured and one is not, the insured party's insurance pays into the court
for redistribution to that same party. If judgment exceeds policy limit, ∆ must pay difference.
6. A settlement can be made on behalf of more than one person, but if one settles for too little,
the others do not make up the difference, they can make a motion for contribution to the extent
that the settlement was unreasonable.
X. Cause in Fact
A. Prevents an injured party from suing anyone who acted negligently and has deep pockets. It is
a procedural safeguard that matches injury with compensation.
B. Five theories for actual causation:
1. The "but for" rule - the damage would not have happened without negligence of the ∆.
a. Ex: A person drowns because there was not a life preserver available. The ship owner is
liable if it can be shown that the man would have survived long enough to be rescued if there
was a life preserver.
b. Ex: A heavy truck drives down a street in violation of a statute, and a neighbor's water
pipes in the basement are ruptured. The driver is liable if other causes can be eliminated.
c. Counter-Ex: doesn't apply when the damage was inevitable, such as boy falling from
bridge being electrocuted by wires.
2. "Substantial Factor" rule - the ∆ is liable if his negligence was a substantial factor in causing
the injury, even though there were other independent forces, each of which would have been
sufficient to cause the damage.
a. Ex: a fire negligently started by one person merges with a fire negligently started by
another, and then destroys a house. The first person is jointly-and-severally liable even if the
other person was unknown. Otherwise perverse incentive to find joint torfeasor.
b. Counter Ex: a negligently started small fire that merges with a large fire of natural origin
does not subject the first person to liability, because the other natural fire would have caused
the damage anyway.
c. Ex: ∆s that negligently start two succesive fires may both be liable depending on time in
between.
3. Summers v. Tice Rule - joint and several liability for 2 negligent parties, even if only one of
them could have caused the injury.
a. All causes are negligent- the injury was due to a poorly aimed shot.
b. All negligent parties are defendants - both hunters are present.
c. π, through no fault of his own, cannot prove actual causation of either party - the
defendants are in a better position to determine who actually shot, because the π is far away.
4. Sindell v. Abbott Labs Rule - Where several mfgrs of a product could be responsible, and all
are negligent, a π can bring an action against less than all possible manufacturers, if he can serve
enough that a substantial market share is represented.
a. All ∆'s have to be negligent.
b. Those ∆'s that can disprove causation are dismissed.
c. Each ∆ pays damages according to their market share.
d. Those mfgrs that are readily identifiable will end up paying more in the long run.
e. Policy: don't let negligent manufacturers be protected by their relative anonymity in
generic markets.
5. Concert of Action Rule- special case of the "but for" 2 or more persons who are aiding and
approving of each other's negligent conduct when only one causes the damage. All are joint and
severally liable.
a. Ex: 2 drag racers race, one hits a pedestrian, but both are liable because the race would not
have happened without the negligence of either.
b. Applies even if the agreement to act in concert was only implied by their actions.
C. "Bare statistical proof" is not enough to show causation.
1. All evidence is inherently "statistical"; even eyewitnesses have some measurable probability
of getting the facts wrong.
2. Just because there is a preponderance of numbers does not mean that there is proximate cause
shown.
a. Ex: A pedestrian is hit at a corner by a blue bus that ran a red light. 60% of the blue busses
are owned by the Big Company, 40% by the Small Company. The Big company is not
necessarily liable. They can show that even though they have more busses, their drivers were
less likely to run the red light because of their strict safety training.
D. Preponderance of the Evidence - better than proportional because it results in less error.
1. Kayes analysis of Herskovits rule: When negligence by doctor pays damages for reducing
chance of survival of a patient with less than 50% chance anyway, holding doctors liable
overdeters ∆ while properly compensating π.
I. Intentional Torts
A. Assault
1. Actor intends to cause "harmful or offensive touching" with the person of the other or a third
person or imminent apprehension of such a contact; or
2. if the actor knows with substantial certainty that the action will cause apprehension of a
harmful or offensive touching; and
3. the other is put in such imminent apprehension.
a. Apprehension is different from fright - you don't have to be actually scared (can use
self-defense).
b. It is sufficient for apprehension that the π know that the harm will occur unless something
else occurs to intervene.
c. It depends more on the apprehension created in the mind of he person assaulted than upon
what may be the intent of the person committing the assault.
B. Battery
1. Actor Intends to cause unlawful harmful touching, or knows, or should know, with
substantial certainty that his actions will cause such harm.
a. Intent to commit act is what controls not the intent to cause harm.
i. Ex: Boy who puts rubber ball in pool drain he mistakenly believes to be not sucking is
liable.
b. Transferred intent - intent to commit harmful act is transferred to a third party who is
struck inadvertently.
c. Substantial certainty - Ex: boy pulls chair out from under old woman as she sits.
2. π does not consent to the touching.
a. Implied consent - arises from circumstances.
i. Ex: victim of accident has implied consent to emergency medical services.
ii. Ex: kids playing on playground have implied consent to foreseeable injuries.
iii. Counter Ex: doctor is liable when he performs surgery on left ear when patient
consented to right ear.
b. Substituted consent
i. Ex: a parent or guardian can consent for a minor or incompetent to undergo surgery.
ii. Can be overridden if induced by fraud or non-disclosure of material fact.
c. Duty of Disclosure - true consent can not be given in absence of all material facts.
i. Ex: Doctor must disclose reasonable risks and benefits involved in medical treatments
and non-treatments.
d. Volunteers cannot recover for the reasonably foreseeable injuries they incur.
i. Ex: Illegal prize fighters cannot recover from each other, but may recover from the
promoter as the driving force because they are the intended class of persons to be
protected.
ii. Ex: Football player can recover from blatant injuries contrary to the rules which are not
inherent risks.
II. Nonconsensual Defenses
A. Insanity
1. Insane persons can be held liable for intentional acts, epileptics are not held liable for
uncontrollable acts because as between two innocents, let the actor bear the burden, and
guardians of insane persons can be deterred.
B. Self-Defense
1. Actor must be in imminent apprehension of receiving great bodily harm.
2. If the actor wounds a third party inadvertently while taking reasonable steps to defend
himself, there is no liability.
a. Ex: shop owner purposefully shoots cop who he thinks is a rioter coming to get him.
C. Defense of property
1. Force may be used to repel actual force.
2. Force may be used to repel intruders when they fail to desist after being requested to stop.
3. Force intended to cause grievous bodily harm.
a. Policy: replaceable property is not as valuable as personal safety.
b. Booby traps or spring guns cannot be used solely to protect personal property because
they do not discriminate between innocent trespassers and thieves.
c. Deadly force can be used to protect dwelling places because if the owner were home, he
could reasonably construe the breaking and entering to be an assault.
d. Force may be used to protect property which is not replaceable and has enourmous social
benefit. Ex: cure for AIDS where there is only one vial.
D. Recapture of Chattels
1. Force is not authorized to get property back from a person who peacefully possesses your
property under mistaken claim of right.
a. Policy - a victim cannot be the arbiter of his own claim, public order and peace are of
greater weight, right of defense but not redress.
b. Ex: employee who takes $50 back pay from payroll cannot be beaten-up by his employer.
2. Peaceful repossession is allowed when done in "hot-pursuit" against someone who has taken
under fraud, force or without claim of right.
E. Necessity
1. Actor who cannot control his movements while exercising a strict right.
a. Ex: mooring a boat to protect life and property during a violent storm is not unlawful.
2. Actor may be liable for damages while protecting his own more valuable property at the
expense of another's.
a. Ex: cargo ship moored to dock during storm damages the dock.
b. "Incomplete privilege" - ∆ may cause harm if he pays for it prevents "Unjust enrichment"
where the cargo ship owner walks away unscathed.
3. "Public Necessity" -a public official may act with immunity if he damages a person's property
to benefit the public at large.
III. Strict Liability v. Negligence.
A. Policy
1. Strict Liability
a. ∆ internalizes the costs imposed on others as if he were the injured party (as between two
innocents...)
b. Eliminates difficulty in determining "standard of care"
i. Reduces litigation costs in individual cases; however
ii. Gives incentives for more lawsuits, raising costs overall.
c. Net transfer of wealth from class more likely to reinvest it to a class of victims.
2. Negligence
a. π internalizes the costs he would not have avoided.
b. Requires determination of "standard of care" and "reasonableness".
i. increases cost of litigation in individual cases.
ii. reduces number of lawsuits because costs of litigation outweigh expected
compensation.
c. Wealth remains with class who is productive and takes reasonable calculated risks.
B. Strict Liability
1. Rylands v. Fletcher
a. An actor is strictly liable for trespass, even if he was morally innocent and had no
knowledge that his actions would cause damage. - Judge Bramwell at court of Exchequer.
b. A person who for his own purposes brings on his lands and collects anything likely to do
mischief if it escapes is prima facie liable for all damages which are the natural consequences
of its escape. - Judge Blackburn at court of Appeals
i. Proper defenses are contributory negligence, and Acts of God.
c. A person who uses his land for any non-natural purpose, and in consequence of doing so,
causes damage to another's property, is liable for the damages arising from the non-natural
use. - Judge Cairns at House of Lords.
i. Building owner is not liable when third person causes plumbing to overflow because
indoor plumbing is necessary in modern society and not non-natural. Non-natural means
not ordinary.
2. Respondeat Superior - an employer is strictly liable when his employees are liable (either
strictly or negligently) for damages that they caused while in the course of their employment.
Does not include private contractors.
C. Negligence requirements- Duty, Breach, Causation, Damages.
D. Standard of Care determination
1. Objective Standard - did ∆ act reasonably under all the circumstances?
a. more likely to take into account practical circumstances when actions can be deterred.
ii. Ex: blind person will not be held liable for his lack of sight because his blindness can't be
deterred.
b. Brings substandard behavior up to the average level because general public safety
demands it, otherwise stupid people have built-in defense.
c. Beginners held to an average skill standard because of public reliance and safety.
d. Children a held to an adult standard when they engage in dangerous adult activities. - Ex:
teenager driving a car, operating heavy equip., shooting a gun.
2. Subjective Standard - did π act in good faith?
a. Difficult to determine mindset of actor.
b. Policy - do not deter heroism, do not penalize reliance.
3. Foreseeability - negligence not strict liability.
a. Sudden medical afflictions are not foreseeable - Ex: heart attack while driving, therefore no
liability.
b. Recurring medical conditions are foreseeable - Ex: sudden mental delusion while driving
creates liability only when there is a history of mental delusions.
c. Protecting the disabled - persons are required to take reasonable precautions to prevent
harm to those who cannot protect themselves due to physical disabilities - Ex: blind
pedestrian falls into un-barricaded hole in sidewalk.
d. Valid lack of knowledge precludes foreseeability - Ex: honking horn in good faith to warn
ships is not negligent.
E. Cost-Benefit (Economic) Theory of Negligence
1. Actor is liable if he fails to take precautions where B < P*L (Hand Formula).
a. Ex: barge owner fails to man his barge during daylight in a crowded port - high degree of
risk, low cost of labor in comparison.
b. Problems with strict application of this formula:
i. Forget to calculate all possible precautions.
ii. Forget to calculate all possible injuries.
iii. Units discrepancy.
iv. Marginal precautions- it may be that only the first $100 spent was worth the benefit
gained, even though $150 spent still satisfies B<P*L.
v. Assumes a risk neutral person with full knowledge of the costs/benefits.
2. Don't have to take precautions for which the costs outweigh the benefits.
a. Ex: power lines fall on telephone lines and cause shock - too remote a risk, too expensive to
prevent.
b. Ex: person falls and burns face on steam pipes under a sink - too remote a risk, not liable
for unforeseeable uses.
F. Custom Theory of Negligence
1. Precautions that others in the profession deem necessary.
2. Most representative of good cost/benefit analysis when the custom involves competitive
businesses, or one's own safety, but not the safety of strangers.
3. Difficult to determine how to group the profession - frame grouping so as to minimize losses
and costs while mazimizing deterrence.
a. Ex: Doctors are held to national standard rather than local standard of care because of
modern access to technology.
b. Ex: Should tugboats carry weather radios if they are local tugs, tugs of a certain size, cargo,
time of day, etc.
4. Custom may be used as evidence of reasonable care but is not the strict measure of reasonable
care.
a. Ex: Opthamologist not performing inexpensive glaucoma test on persons under 40. (risks
outweigh the costs.)
b. Ex: Doctor must inform patients of all risks that would affect a prudent patient's decision
to undergo surgery, even if his custom is not to inform so he won't scare the patient.
IV. "Per se" Negligence.
A. Negligence becomes a question of law not fact for the jury.
1. Policy - judgment of legislature deemed probably more wise than judgment of an individual
or a jury.
2. Policy - reliance on the presence of a stop sign, whether or not it is reasonable.
B. Violation of a statute is negligence per se, unless it can be excused by circumstances such as
necessity.
C. The violation of a statute that is technically defective is still negligent because it still represents
good social benefit.
D. Old statutes that are no longer enforced are not strict measures of negligence.
1. Policy- Evidence that the ordinary person's judgment was correct over the judgment of the
legislature.
2. Policy - there may be reliance on the violation of a statute- Ex: persons crossing a yellow line
before they turn because it helps them see better.
E. Only the class of persons intended to be protected by the statute (either express or implied in the
statute) can recover and only for the character of injuries it was designed to prevent.
F. Violation of a statute is not negligent if it following it to the letter would put the actor at a
greater risk because legislative intent was not to increase risk.
G. Violation of the statute must be proximate cause of injury.
1. Just because a license is required does not mean that practice without a license is per se
negligence.
a. Ex: operating a car without a driver's license is probably not per se negligence.
i. Policy: It is easy for a jury to find if a driver is acting negligently, with or without a
license, because they all have common driving experience.
b. Counter Ex: practicing medicine without a license is probably per se negligence.
i. Policy: It is very difficult for the trier of fact to determine negligence in medical cases, so
a bright line is drawn.
ii. Policy - the legislature thought it so important to regulate the activity that it absolutely
prohibited the unlicensed practice of the activity, even though some unlicensed persons
may never injure another.
2. An actor may be liable for violation of a statute even if the actual injury is directly caused by a
negligent third party.
a. Ex: a person who leaves his car unlocked may be liable for damages caused by a thief policy is to protect others from negligent behavior of thieves and children.
b. Ex: a host or bartender may be liable in some states for serving alcohol to an intoxicated
person who later injures another due to his drunk driving.
i. hinges on whether the proximate cause is the serving of the alcohol, or the consumption
by the drinker.
H. A statute that requires determination of reasonableness does NOT aid in a per se negligence
case because the same burden of proof (reasonableness) is required to prove negligence.
V. Judge and Jury (Negligence as a matter of law vs. fact)
A. Policy: sending a fact pattern to a jury is risky because they might return a verdict contrary to
established principles of law.
B. Judge determines negligence when it is a question of law.
1. Judge can determine what conduct is prima facie evidence of negligence if there is no
question of fact of whether the conduct happened or not.
2. An experienced judge should be able to determine many questions of negligence without
needing the assistance of a jury.
C. Jury determines negligence when it is a question of fact.
1. Sometimes courts need the assistance of the experience of the community (a jury) to
determine negligence as a question of law.
2. According to Holmes, once the jury decides a particular fact pattern is evidence of negligence,
then it should become a settled matter of law thereafter, and so not be left to a jury.
a. Ex: it is well established that a person crossing a railroad track should stop, look, and listen
for a train coming.
3. However, according to Cardozo, when taking the negligence determination from the jury's
hands, the court must be careful to base their rule on standards of common experience.
a. Ex: a person should not have to be required to get out of his car and walk down the tracks
to see an oncoming train, only to do what would be ordinarily prudent under the
circumstances.
4. When in doubt - go to jury.
VI. Res Ipsa Loquitur (the thing speaks for itself)
A. Aids the π in recovery where he cannot prove negligence because he has circumstantial
evidence.
B. Requirements for res ipsa loquitur (Prosser)
1. Must be something which ordinarily does not occur in the absence of someone's negligence.
a. Ex: barrel of flour falling out of storehouse window onto pedestrian below.
2. Caused by someone or something under the exclusive control of the ∆.
a. Ex: a hoist carrying the barrel, operated by ∆'s employees.
b. Counter Ex: an act of God, such as a sinking ship.
3. There must be no contributory negligence.
C. An action related to res ipsa loquitur may be brought against several ∆'s, if there is a "conspiracy
of silence" among the ∆'s.
1. Ex: In Ybarra, the patient was allowed to bring suit against several doctors and nurses,
because they collectively had exclusive control of his body, even though they did not
individually have exclusive control over his body at all times. No Respondeat Superior because
they were independent contractors.
a. Policy: to allow a π to get a "foot in the door" so that he can use the power of the court to
break up the conspiracy of silence among colleagues.
VII. Contributory Negligence
A. When the injury would not have happened without negligence on the part of the π, the doctrine
of contributory negligence used to be a complete defense and a bar to recovery.
1. Not a defense to an intentional tort.
2. Must still show CAUSATION.
a. Ex: When a worker continued to work, and failed to notify his supervisor, even though the
fishmeal sacks were stacked dangerously, he could not recover if it could be show that the
supervisor would have done something if told.
B. Property Rights: LeRoy Fibre (flax stacks)
1. The property rights of a π cannot be limited by the anticipated negligences of a ∆, so not
contributory negligence. - Justice McKenna's rule.
2. Although a π may have the right to use his land in any legal way he wishes, the ∆ is liable for
damages only if the π has made a reasonable use of his own land. - Justice Holmes' rule.
a. Policy: Just because we protect property rights doesn't mean we should provide a tort
remedy for careless property use.
3. Coase's Theorem: Neighboring parties have "reciprocal duties" to avoid harm to each other. If
each party were left to negotiate among themselves, in a perfect market, with no transaction
costs, they would reach the most efficient precautions. They would take into account not only
the value of what is to be saved, but the cost of saving it. The least cost avoider would pay for
the precaution.
a. Ex: A candy maker makes so much noise that it disturbs the doctor's office next door. The
social interest is to have better doctor's services, so the candy man would restrict his mfg'ing
as the least cost avoider.
b. Policy: Doesn't work well in real world because of high transaction costs and parties being
strangers before accident.
C. Avoidable consequences - a π who fails to take ordinary precautions to minimize his own
injury - does not mean contributory negligence because it didn't cause the action, only increased
the damages.
1. Ex: patient who does not go to the hospital to seek treatment may only recover for damages
that were a direct cause of the accident, and not due to the delay in treatment.
2. Ex: person who does not wear seatbelt may have his collision damages reduced because the
custom of wearing a seatbelt could be weighed by a jury very heavily.
D. Last Clear Chance is a response to the defense of contributory negligence.
1. Policy: We do not want to reduce the incentive of a person to be careful just because someone
else has placed himself at risk first.
2. A helpless π who had negligently submitted himself to a risk of harm from the ∆'s subsequent
negligence may recover for harm caused thereby if, immediately preceding the harm:
a. the π is unable to avoid it, AND
b. the ∆ is negligent in failing to avoid it when he:
i. knows of the π's situation and peril; OR
ii. would have discovered the π's situation and peril if he were paying attention.
3. An inattentive π, who by the exercise of reasonable vigilance, could discover the danger
created by the ∆'s negligence in time to avoid it, can recover if, but only if, the ∆:
a. actually knows of the π's situation, AND
b. should know that the π is inattentive and therefore unlikely to avoid the harm, AND
c. thereafter is negligent in failing to avoid the harm.
4. Ex: a subway train driver is liable when he fails to stop the train and investigate the
emergency stop, and a transient is killed by the train as it keeps going.
5. Policy: Provides a relaxation of the complete bar of contributory negligence when the ∆ could
have most easily (and therefore most economically) avoided the harm.
VII. Assumption of Risk - a defense to negligence.
A. Three classical elements:
1. π had knowledge of the specific risk.
2. π appreciated the magnitude of the risk.
3. π voluntarily and freely encountered the risk.
4. NO requirement for negligence by π.
5. NOT a defense to an intentional tort.
B. How broadly should the phrase "specific risk" be interpreted. It depends on how well known or
generally understood the risks are and is a task for jury.
1. Ex: A person who falls while stepping onto an amusement ride would be barred from
recovery if the injury was due to a risk inherent in the ride, but not if the ride suddenly jerked
violently (or blew up).
2. Ex: Being hit by a foul ball at a baseball game would be foreseeable, but being hit by a stray
golf ball while standing in a concession line may not be.
C. There are 4 facets of behavior that are normally grouped under assumption of risk:
1. The π contracted out of recovery.
a. Ex: A person signs a waiver form that explicitly limits recovery when obtaining a risky
service. (Obstetrician requiring binding arbitration, dry cleaner claiming they are not
responsible for damages).
2. Plain old contributory negligence. - π negligently subjects himself to harm.
a. Ex: person at a skating rink continues to skate and is injured even after they become aware
that the ice is too slippery.
3. ∆ did not owe a duty in the first place.
a. Ex: kids playing catch with a ball and one is hit in the face.
4. ∆ is negligent, but the π is not contributorily negligent in assuming the risk anyway.
a. Ex: Man darts out in front of runaway train to save a child.
IX. Comparative Negligence
A. Li v. Yellow Cab - a π may recover damages from an injury caused by the negligence of the ∆,
even if the negligence of the π was a contributing cause to the injury, but the amount of the
recovery shall be reduced proportionally by the amount of the π's negligence as compared to the
∆'s negligence.
B. Explicitly absorbs the last clear chance and assumption of risk rules. Now the π's negligence
becomes a matter of fact for the jury to put a number on.
C. Exceptions to the comparative negligence doctrine.
1. Strict liability actions still result in full recovery.
2. Does not apply when the ∆'s negligence is reckless or wanton, because the ∆'s negligence
would be of a different kind rather than simply a greater degree.
3. Does not apply to intentional torts.
a. Ex: a negligent person wandering into the highway may get a full recovery against a driver
who intentionally runs him down.
4. Does not apply when the π has contracted out of recovery.
D. Uniform Comparative Fault Act:
1. Fault is split only among the parties to claim at the trial, both π and ∆s.
2. Each of multiple ∆'s could pay the maximum under joint-and-several liability.
3. An uncollectable judgment shall be reallocated among the remaining parties (including the π)
according to their respective percentages of fault if motion is made in 1yr.
4. There is no set-off of judgments except upon agreement of both parties.
5. Where one party is insured and one is not, the insured party's insurance pays into the court
for redistribution to that same party. If judgment exceeds policy limit, ∆ must pay difference.
6. A settlement can be made on behalf of more than one person, but if one settles for too little,
the others do not make up the difference, they can make a motion for contribution to the extent
that the settlement was unreasonable.
X. Cause in Fact
A. Prevents an injured party from suing anyone who acted negligently and has deep pockets. It is
a procedural safeguard that matches injury with compensation.
B. Five theories for actual causation:
1. The "but for" rule - the damage would not have happened without negligence of the ∆.
a. Ex: A person drowns because there was not a life preserver available. The ship owner is
liable if it can be shown that the man would have survived long enough to be rescued if there
was a life preserver.
b. Ex: A heavy truck drives down a street in violation of a statute, and a neighbor's water
pipes in the basement are ruptured. The driver is liable if other causes can be eliminated.
c. Counter-Ex: doesn't apply when the damage was inevitable, such as boy falling from
bridge being electrocuted by wires.
2. "Substantial Factor" rule - the ∆ is liable if his negligence was a substantial factor in causing
the injury, even though there were other independent forces, each of which would have been
sufficient to cause the damage.
a. Ex: a fire negligently started by one person merges with a fire negligently started by
another, and then destroys a house. The first person is jointly-and-severally liable even if the
other person was unknown. Otherwise perverse incentive to find joint torfeasor.
b. Counter Ex: a negligently started small fire that merges with a large fire of natural origin
does not subject the first person to liability, because the other natural fire would have caused
the damage anyway.
c. Ex: ∆s that negligently start two succesive fires may both be liable depending on time in
between.
3. Summers v. Tice Rule - joint and several liability for 2 negligent parties, even if only one of
them could have caused the injury.
a. All causes are negligent- the injury was due to a poorly aimed shot.
b. All negligent parties are defendants - both hunters are present.
c. π, through no fault of his own, cannot prove actual causation of either party - the
defendants are in a better position to determine who actually shot, because the π is far away.
4. Sindell v. Abbott Labs Rule - Where several mfgrs of a product could be responsible, and all
are negligent, a π can bring an action against less than all possible manufacturers, if he can serve
enough that a substantial market share is represented.
a. All ∆'s have to be negligent.
b. Those ∆'s that can disprove causation are dismissed.
c. Each ∆ pays damages according to their market share.
d. Those mfgrs that are readily identifiable will end up paying more in the long run.
e. Policy: don't let negligent manufacturers be protected by their relative anonymity in
generic markets.
5. Concert of Action Rule- special case of the "but for" 2 or more persons who are aiding and
approving of each other's negligent conduct when only one causes the damage. All are joint and
severally liable.
a. Ex: 2 drag racers race, one hits a pedestrian, but both are liable because the race would not
have happened without the negligence of either.
b. Applies even if the agreement to act in concert was only implied by their actions.
C. "Bare statistical proof" is not enough to show causation.
1. All evidence is inherently "statistical"; even eyewitnesses have some measurable probability
of getting the facts wrong.
2. Just because there is a preponderance of numbers does not mean that there is proximate cause
shown.
a. Ex: A pedestrian is hit at a corner by a blue bus that ran a red light. 60% of the blue busses
are owned by the Big Company, 40% by the Small Company. The Big company is not
necessarily liable. They can show that even though they have more busses, their drivers were
less likely to run the red light because of their strict safety training.
D. Preponderance of the Evidence - better than proportional because it results in less error.
1. Kayes analysis of Herskovits rule: When negligence by doctor pays damages for reducing
chance of survival of a patient with less than 50% chance anyway, holding doctors liable
overdeters ∆ while properly compensating π.
I. Proximate Cause (Herein of Duty)
A. Three famous cases:
1. In Re Polemis - Foreseeability of some injury is necessary to prove breach, but foreseeability of
the actual injury is not required so long as the actual injury is the direct result of the ∆'s negligent
act.
a. Ex: wooden plank falls into hull of cargo ship igniting a conflagration. Some injury was
foreseeable, and injury was direct result.
b. Counter Ex: person sneezes which caves in eggshell skull. No injury was foreseeable, even
though injury was direct.
2. Palsgraf - Special Rule - Cardozo π may not recover unless he is a member of a foreseeable class
of victims (introduced the concept of "duty").
a. Counter Ex: taxi driver gets in accident. He's so upset that later, while driving home, he has a
heart attack. The wife sues for her damages. ∆ is not liable because wife was not member of a
class of foreseeable victims.
b. Question reserved whether foreseeablitity of the actual injury is necessary if the harm is
direct.
c. Dissent: Andrews "proximate cause" is a convenience of public policy not physics. Duty of
care owed to everyone not just foreseeable classes.
3. Wagon Mound - Foreseeability of the actual injury is required.
a. claimed to directly overruled Polemis, but can be reconciled with Polemis if you find that the
fire was not the direct result of the oil spillage because human intervention was required to light
the fire.
b. Ex: swinging a golf club hits someone in the head. The actual injury was foreseeable.
B. Violation of a statute, although it is per se proof of breach of a duty, does not conclusively prove
liability for a particular injury unless the violation of the statute is the proximate (foreseeable) cause
of the injury.
1. Ex: An old rotten tree in the center of the city falls on a car which is speeding. The owner of the
car is not per se contributorily negligent for his own injuries just because he was speeding,
because the tree could just as easily have fell on him if he were going slowly. Berry v. Sugar
Notch.
2. Ex: Sheep fell overboard because they were not tied down properly in accordance with a
sanitation statute. Although it was per se negligent not to tie down the sheep, the violation of a
sanitation statute was not the proximate cause of the drowning. Gorris v. Scott.
C. Generally, if the ∆'s action has come to rest, but leaves the π in a dangerous position, then the
chain of causation is not broken by an intervening third party because it was foreseeable that a third
party would cause harm.
1. Ex: After train collision, theives steal carriage passenger's luggage. Brower v. NY Central &
HRR.
D. Fire - special case. Draw an artificial distinction because public policy demands that you don't
need to insure neighbor's house against fire. Thus, spreading of negligent fire beyond your house is
unforeseeable. Ryan.
II. Duty to Rescue
A. Two alternative approaches:
1. General no-duty rule - a person does not have a duty to rescue a person from harm when the
rescuer has not created the peril.
a. An actor is not liable for “nonfeasance” if he simply fails to aid a victim if he did not create the
risk, but
b. liable for “misfeasance” if he increases the risk of harm to the victim after undertaking a
rescue.
c. Pro: If strangers were required to rescue, who among a group would be liable for not
rescuing?
d. Con: Results in morally unconscionable results sometimes.
2. Ames’ Rule - a person should have a duty to undertake those affirmative actions needed to
prevent injury to others that impose only minimal costs on the rescuer.
a. Ex: Person on bridge fails to throw a rope to a drowning man should be liable.
b. Counter Ex: Doctor from Calcutta should not be required to travel across country to save a
patient.
c. Pro: quasi-contract between members of society to rescue each other. Reciprocal duties.
d. Con: Weakens contracts because the victim would only need to offer enough to make it a little
inconvenience. Would you be required to donate $10 to save a starving child in Africa?
e. Con: Disincentive to invest in things which make you a better rescuer. Subsidizes careless
persons at the expense of careful persons.
B. Landowner Duties to rescue
1. Traditional approach distinguishes trespassers, licensees and invitees.
a. Trespasser - (uninvited)
1) duty to refrain from willful, wanton, or intentional injury.
2) Ex: don’t use spring guns or traps designed to injure trespassers.
3) Ex: In Addie, children playing on a coal mine winch were treated as trespassers.
b. Licensee - (social guest; allowed on your land but you are not benefiting from them)
1) duty to use reasonable care to warn of hidden dangers known to the landowner.
2) duty to use reasonable care to avoid affirmative acts of negligence.
3) Ex: don’t dig gopher holes (negligence), and warn guest of existing gopher holes.
c. Invitee - (guest who benefit you or your business)
1) duty to use reasonable care to keep the premises in a reasonably safe condition.
2) ex: fix existing gopher holes.
d. Attractive hazard for children - actor is liable if he creates an artificial condition where:
1) he knows or should know that children will play there
2) it involves an unreasonable risk of bodily harm
3) child could not discover the harm due to his youth
4) cost of preventing the danger is slight
5) Ex: in Excelsior, a winch was treated as an attractive trap and so the owner was liable
because he should have foreseen the danger to children playing there.
2. Rowland v. Christian, where a social guest cut his hand on a porcelain faucet. The new
standard was reasonable care under the circumstances.
a. Distinction between licensee and invitee is unclear because most guests are benefiting the
landowner in some way.
b. Although the purpose for being on the property has some bearing on the duty, it is not
determinative. This avoids unconscionable results where the injured party is a trespasser.
C. “Gratuitous” Undertakings - Good Samaritan
1. To result in liability, there must be:
a. Intent (action) to rescue (if you begin, you have waived your right to be left alone); and
1) Reasonable reliance ( “naked” or unreasonable reliance is not sufficient. ) OR
2) failure to exercise care increases the risk of harm to the victim.
2. Policy - if you fail or turn back, you have cost the victim other opportunities for rescue.
3. Ex: Railroad discontinuing watchman after general public relies on it. Erie RR. v. Stewart or
Marsalis v. LaSalle (cat).
D. Special Relationships (Parent-child, common carrier-passenger, landlord-tenant, jailer-prisoner)
1. Policy for creating a duty under special relationship:
a. The beneficiary is stripped of other means of care, either intentionally or by reliance,
b. The relationship may be non-consensual (forced on the beneficiary, but voluntary by the
benefactor),
c. The benefactor has control over the risk because of his position.
2. Ex: In Kline, a landlord was held liable for the failure to provide reasonable protection in the
common areas over which it had control to prevent third parties from attacking tenants.
3. Ex: In Tarasoff, a special relationship was held to have arisen between a psychiatrist and the
intended victim of one of his patients, as soon as he knew that the patient intended to harm the
victim.
a. Policy: weigh special relationship to victim more than doctor-patient confidence for good
therapy.
4. Policy for not waiving duty in landlord-tenant case: bargaining power in cases where tenant has
no other choices.
III. Strict Liability in Modern Times
A. Animals
1. Only applies to personal injuries, not property damages.
2. Two classes of animals:
a. Ferocious by nature - strict liability standard always.
b. Not ferocious by nature - negligence standard unless that particular animal was known to be
ferocious. Baker v. Snell (dog).
B. Abnormally dangerous activities.
1. Restatement (Second) of Torts § 519
a. One who carries on abnormally dangerous activity is subject to liability even if he is exercising
the utmost care to prevent the harm.
b. This strict liability is limited only to the kind of harm which makes the activity abnormally
dangerous (still must show proximate cause).
1). Ex: A person is not strictly liable for damages caused by the crash of a truck carrying
explosives.
2) Ex: ∆ is liable for gas truck explosion Siegler v. Kuhlman.
2. Restatement (Second) of Torts § 520
a. In determining whether an activity is abnormally dangerous, the following factors are
considered:
1). existence of a high degree of risk of harm,
2). likelihood that the harm will be great
3). inability to eliminate the risk by reasonable care,
4). extent to which the activity is not common usage, customarily carried on by the great mass
of mankind or the community.or "non-reciprocal" risks.
5). inappropriateness of the activity to the place,
6). extent to which the value to the community outweighs the dangerous attributes.
b. The activity must be necessary, otherwise it is simply negligent, and there is no need for strict
liability.
c. Abnormally dangerous is question of law, not fact.
d. Policy: put the burden of loss on the person who created the abnormally high risk instead of
the victim and evidence of negligence may be destroyed (quasi-res ipsa loquitur).
e. Ex: dynamite damage to a neighboring garage is strict liability even though lawful and
non-negligent. Spano v. Perini Corp.
IV. Product Liability
A. History of Products liability:
1. No tort cause of action without direct privity (Winterbottom stagecoach crash).
a. court was afraid of opening the gates for too many lawsuits if not confined to contracting
parties. (mail delivery domino effect)
b. did not consider that the proximate cause requirement would screen out distant lawsuits.
2. Rise of negligence cause of action for bodily injury caused by defective products even in the
absence of privity (Cardozo in MacPhereson).
a. the mfgr should be liable for negligence if it is foreseeable that an injury will happen to a class
of ultimate consumers if not manufactured with reasonable care because it will not be altered or
reinspected by a middleman retailer before reaching the consumer.
b. still requires proof of negligence (which may be difficult), but does away with privity
requirement.
3. Rise of strict liability cause of action for bodily injury caused by defectively manufactured
products. (Traynor in Escola and Greenman v. Yuba).
a. public policy demands that the risk of loss be put on the mfgr who can most easily avoid it by
controlling his manufacturing plant more closely.
b. mfgr is in a better position to absorb and spread any residual loss in the cases where he was
not actually negligent.
c. does away with the difficult burden of proof that the victim had because he could not
determine what was happening at the mfgr's plant.
d. the consumer is in a weaker bargaining position and so can not protect himself.
e. deter every negligence case, and put residual risk of accidents on mfgr.
f. Tort is a better forum than contract law for handling these cases because the contract remedy
may be limited to refund of the purchase price for breach of implied warranty, and special
commercial rules might apply.
g. Can hold product up to design specification and determine defect.
4. Rise of reasonableness standard cause of action for defectively designed products and for
failure to warn when such product causes bodily harm.
a. Reasonableness of design itself, even though non-negligently manufactured. Pouncey v. Ford
(design allowed for too many inclusions in fan metal).
b. Made as intended but still unreasonably dangerous for its foreseeable misuses. VW v. Young,
collisions are a foreseeable use of cars. Micallef v. Miehle (printing press without roller guards).
c. Design is either defective by custom based on customer expectation, or by cost-benefit. Barker.
1) If cost-benefit is insufficient, upgrade because of expectation, and vice versa.
2) Warning labels can reduce customer expectation.
d. Failure to warn of known risks is required. Brown v. Superior Ct Mosk held not liable for
failure to warn of unknown DES risks. Quasi-negligence of §402A cmt k.
1) public interest in maintaining development, availability and low cost of drugs outweighs
overdeterrence.
e. But McDonald v. Ortho required actual warning to user of birth control pills.
1) Infrequent doctor/patient interaction.
2) Safer alternatives available.
3) π must still show causation: that she would not have used product if properly warned.
4) information cost of over-warning detracting from main risks.
B. Restatement (Second) §402A - Special Liability of Seller of Product for Physical Harm to User or
Consumer.
1. The seller is liable if the product is in a defective condition unreasonably dangerous to the user
or consumer or his property if:
a. The seller is in the business of selling that product, and it reaches the consumer without a
substantial change.
1). This applies to a movie theater selling popcorn.
2). This does not apply to a housewife who occasionally sells her neighbor a jar of jam.
3) Service providers are exempted Murphy v. E.R. Squibb (DES bought in pharmacy).
b. Unspoiled tobacco is not unreasonably dangerous just because smoking it is harmful, but
laced tobacco is unreasonably dangerous.
2. The rule applies even though the seller has exercised all possible care in the preparation of the
product, and even if the ultimate user has not entered into any contractual relationship with the
seller.
3. Some products can never be safe, (such as the rabies vaccine) but the public good is served by
them such that they are not unreasonably dangerous because the good outweighs the danger, so
it is not unreasonable to sell them.
4. Like other strict liability cases, assumption of risk (>slight cont. neg.) is an affirmative defense.
a. Comparative negligence can apply to deter cont. neg. Daly v. GM. Mosk dissented.
C. Breach of Warranty
1. Implied warranty of fitness for use includes foreseeable users under UCC 2-318.
2. Ex: McCabe v. Ligget Drug exploding coffe maker. Retailer liable because in better position to
inspect goods.
3. Manufacturer liable because of buyer's expectation and it will reach consumer without
substantial change.
V. Nuisance
A. Intentional (or knowledge with substantial certainty) nuisance is subject to a "reasonableness"
standard.
1. If the harm is "serious", then strict liability even when the cost outweighs the benefit. Morgan
v. High Penn Oil (noxious fumes).
a. Policy: weigh property interests more than negligence.
2. If the harm is not "serious", then use negligence cost/benefit.
a. Policy: since they don'r really involve a physical touching, no urge to compensate π.
3. Nuisance per se - is a nuisance no matter where it is because it is a violation of statute.
4. Nuisance per accidens - (in fact) by reason of its location.
5. Policy: Most minor nuisances are common and must be tolerated under the idea of reciprocal
nuisances. Don't sue because of high transaction costs, let Coase Theorem work.
6. Policy: Don't inhibit development of land, allow nuisances that serve a useful purpose.
a. "spite" fence is a nuisance because it does not serve a useful purpose
b. "spite" tool shed is not a nuisance because it serves a useful purpose.
c. Fountainbleu, hotel served a useful purpose.
7. Damages - an injunction will be granted only if the nuisance is of a permanent and unabatable
character, and the value of the nuisance does not significantly outweigh the damage to the π.
Boomer v. Atlantic Cement (Cement too valuable to society, injunction would create probable
extortion settlement.)
8. "Coming to the nuisance" - balance the reliance of the pre-existing nuisance owner against the
property rights of the new residents. Ensign v. Walls (smelly dog farm pre-existed).
B. Unintentional nuisance is an extreme negligence standard.
1. Conduct must be reckless or ultra-hazardous if it is not serious.
C. Extra-sensitive plaintiff
1. The "reasonableness" of an action is measured by its affect on the ordinary man, not the
extra-sensitive one. Rodgers v. Elliot (churchbell ringer).
2. Policy: Otherwise, business would go from legal to illegal based only on the character of
passersby.
D. Public Nuisance
1. More efficiently handled by adminstrative regulation.
2. Individual will only get "special" damages if they are "disproportionate" to the general public.
3. Policy: Prevent the high transaction cost of multiple individual suits.
VI. Immunities
A. Husband and Wife - overruled in most jurisdictions
1. Policy for immunity: preserve the harmony of the marriage by making them work it out alone
and protect insurance companies against fraud from collusion.
2. Policy against: insurance company could write anti-collusion clauses and charge higher
premiums.
B. Parent/Child - confined to negligence cases mostly.
1. Negligent supervision
a. the child can sue the unreasonable parent.
b. a third party defendant can bring the parent as a co-defendant.
c. damages are the childs gain but the parents loss, so there is a net loss due to transaction costs.
C. Charitable Immunity
1. Policy for immunity: deters contributions because it diverts funds from their intended use to
cover damages and subsidize charity (as in tax deductions).
2. Policy against: necessary cost of doing business - they can buy insurance, and the injured victim
is subsidizing the charity, not just the general public.
D. Government Immunities
1. Municipal corporations - no reason to think that the jury is wiser than the electorate selected by
the public.
2. Soveriegn immunity - soveriegn is the source of legal rights.
a. Federal Tort Claims Act - permission to sue the gov't.
1) must file admin action with the agency first which can award in whole or in part.
2) must be in federal court
3) tried by a judge, not a jury
4) must be negligence action (neg. supervision or neg. hiring) not strict liability or intentional
tort.
b. Test for discretionary immunity (Berkovitz polio vaccine improperly tested):
1) was the action a "matter of choice" for the employee or policy?
2) was the action the kind that the discretionary immunity doctrine was designed to protect?
E. Official Immunity - absolute immunity for judges, legislature, and president.
1. Someone has to make the ultimate decision.
2. Elected officials must have freedom to act without fear of reprisal.
3. Elected officials reflect general public's view of reasonableness.
4. Presidential aides get qualified immunity for discretionary acts. (Harlow v. Fitz).
VII. Damages
A. Wrongful Death Acts - provides a cause of action for a living person because of death of
another.
1. Statutory rules on who can sue.
2. The damage to the suing party is the death of the deceased.
a. Ex: covers damages from the point of death forward for lost wages, lost household services,
etc.
b. Compensation for premature death, since everyone eventually dies, so damages limited to
expected lifetime.
B. Survival Acts
1. Torts accrued to the deceased before death.
a. Ex: pain and suffering for a deceased's fear before the plane hit the ground.
2. Statutory rules on who can sue.
C. Loss of consortium - non statutory recovery for complete loss for definite period of time.
1. Spouse can sue, but not children.
D. Pain and suffering
1. Compensationalists favor wide liability but smaller awards because they only wish to prevent
financial devastation to the π. Thus, they limit pain and suffering awards.
2. Deterrence proponents favor narrower liability but higher awards to send a clear message.
Thus, they give generous pain and suffering.
E. Collateral Source Rule
1. If the π receives payment for damages from a third party (rich aunt, charity hospital, or
insurance) the payment does NOT reduce the ∆'s liability.
2. Policy: There is no double recovery because the insurance company (or other third party) may
have a right of subrogation.
3.Policy: Deter the ∆ by making him fully internalize the cost - pure luck that he hit an insured
person.
4. Fleming - compensationalist - unless strong need for deterrence, don't use CSR and don't allow
subrogation because it increases transaction costs, so the π pays $800 premium for $700 recovery.
5. Subrogation - no automatic right, must be in policy.
a. potential to hide recovery in pain and suffering if right of subrogation is only to medical
expenses.
F. No-Fault Insurance
1. Limits damages to economic damages (no pain & suffering).
2. Automatic subrogation of all claims.
3. Victim claims against own insurer.
VIII. Workman's Compensation
A. NOT Tort Law
1. Negligence not required
2. Assumption of risk and ordinary contributory negligence are not defenses.
3. Causation requirement is different (temporal not proximate)
a. injury arose out of employment ("But for")
b. during the course of employment.
1) sufficient that the employer tolerated the action even if illegal. Matter of Richardson v.
Fielder (downspouts taken by roofers).
2) "going and coming" rule excludes injuries during commutes because π has other commuting
choices. Wilson v. Worker's Comp Board.
c. Is it "reasonably related" to the work.
4. Burden of proof is slight, but remedy is equally slight
a. no pain and suffering
b. scheduled damages based on severity
5. Deterrent effect because the "insurer" is the employer who is in the best position to prevent the
harm.
6. Employee's exclusive remedy.
a. can't bring an action in tort unless it is "truly" intentional tort by the employer. Beauchamp v.
Dow Chemical was intentional tort.
b. Employer must have intended act and had knowledge with substantial certainty that injury
would occur.
IX. Non-Physical Harms
A. Offensive Battery
1. Restatement §18 defines offensive battery as requiring actual intent. Alcorn v. Mitchell
(spitting in the face).
a. No liability for recklesness or negligence unless you can prove actual damages.
b. Policy: prevent escalation of violence because of the insult.
2. Do not need to prove actual damages or knowledge.
a. Ex: Kissing a woman while she sleeps is offensive battery even though she does not know and
is not harmed.
B. False Imprisonment
1. ∆ must intend to confine π, there is no recovery for negligent false imprisonment.
2. π must have no reasonable means of escape.
a. Bird v. Jones Coleridge defines as confinement in a particular area, not simply exclusion from
an area.
b. Prosser states π does not need to know at the time, if he finds out later.
3. Defenses are probable cause, or "reasonable error" (shoplifiting Coblyn v. Kennedy's,
self-defense, defense of property, consent, and deprogramming Peterson v. Sorlien.)
C. Intentional infliction of Emotional Distress
1. 18th century rule: emotional distress must be parasitic to another tort.
a. Ex: Wilkinson, practical joke that husband was dying. Emotional damages parasitic to fraud.
b. Ex: Bouillon, gas meter reader. Emotional damages parasitic to trespass.
2. Modern rule: §46 "extreme and outrageous" conduct "intentionally or recklessly" causes
"severe" emotional distress.
a. Ex: George v. Jordan Marsh, bill collector harassment. Emotional distress as its own tort
without a physical injury.
b. Policy: compensate emotional injuries which are real, but keep the standard high enough to
prevent unfounded suits.
c. Defense for public figures: Hustler v. Falwell, harder to sustain burden of proof because of 1st
amendment protection of political satire.
3. Transferred intent applies.
D. Negligent Infliction of Emotional Distress
1. 18th century rule: negligent act must lead to physical harm, then to emotional injury to be
recoverable.
2. New York Rule: negligent act can lead directly to emotional injury, but it must be evidenced by
physical injury.
3. Modern rule: no physical injury required.
a. Ex: Dillon v. Legg, mother allowed to recover for witnessing daughter's accident because she
was a foreseeable class of victims. Test is 1) proximity to accident, 2) whether directly witnessed
injury, 3) closely related. Narrowed by Thing v. LaChusa.
b. Foreseeability is determined by close relation, physical proximity, if π observed the accident.
c. Ex: Molien v. Kaiser, Mosk stated that burden of proof was so high that is some guarantee that
the claim will be meretorious.
4. Eggskull doctrine applies when π is in foreseeable class of victims if the ∆ knows of the πs
sensitivity. Nickerson (crazy woman's treasure hunt).
X. Economic Harms
A. Inducement of breach
1. ∆ is aware of the contract and interferes to cause damages.
2. Actual breach is not required, nor must the contract be enforceable.
3. Ex: Lumley v. Gye malicious inducement of breach to interfere with prospective gains by
Lumley.
B. Unfair competition/interference with prospective advantage.
1. Can not use intentional illegal methods to interfere with another person's business profitability,
but you can use extreme economic competition because it is difficult to draw the line.
a. Ex: frightening customers away. Allowing π to bring action has deterence value on behalf of
customers. Tarleton v. M'Gawley.
b. Counter-ex: predatory pricing and conspiracy is allowable because it does not result in
monopoly, and the consumer benefits. Mogul Steamship (tea trading consortium).
2. For negligent interference with economic gain, the π must be in a class of foreseeable and
"identifiable" victims to recover (People Express chemical spill).
3. News is intellectual property for a reasonable time when parties are in competition with each
other. INS v. API (republishing competitor's news).
3. Passing off - selling your goods as being someone else's.
a. Eli v. Mosler [Hand] held that safe that appeared to have explosion chamber was passing off
on safe that had patented explosion chamber.
b. Mosler v. Eli, [Holmes] still required the safe maker to show that customers would have
bought from him otherwise.
XI. Subrogation clauses
A. Don't limit to tort causes of action (could be property or contract).
B. Don't limit it to medical damages - use any damages.
C. Don't use the word compensation because punitive damages are not compensation.
D. Mentioning attorney's fees allows isured's attorney's to collect first.
E. Include successors and assigns.
F. Don't mention "cases", but rather "claim".