Intentional Torts
I. Elements: 1) act, 2) intent, 3) causation
a. Intent is a voluntary purpose to produce a consequence or knowledge that the consequence is
substantially certain to result.
1. An act is a volitional movement. (no muscle spasms, convulsions, etc.)
2. D ACTS when he strikes another even if it is prompted by insane impulses
3. Not a response to an emergency
4. Inaction does not count because an act is required to show intent, unless the person has a
preexisting duty to protect (employer, hospital, etc)
5. Motive is irrelevant to intent. Intent is the purpose to use a particular means to effect the result
b. Causation is where the conduct is the substantial factor in bringing about the injury. (But-for and actual
cause)
c. Types of Intent
1. Single intent – majority view; only need to show the defendant had intent to cause contact; not the
intent to cause harmful/offensive contact
i. Garratt v Dailey - Battery is established if there is substantial certainty of an outcome
even if there is an absence of intent to injure. Boy pulls out chair as lady is sitting down.
2. Dual intent – minority view; need to show defendant intended to BOTH cause contact and the
contact to be harmful/offensive
i. White v. Muniz - For intent for battery to be established, a person must act with intent to
contact and intent to harm/offend. Alzheimer’s patient strikes nurse.
3. Transferred intent
4. Transferred intent occurs if D intends to commit a tort against one person but 1) commits a
tort against that person or 2) commits the intended tort against a different person or 3)
commits a different tort against a different person
a. Cannot be transferred from an object to a person (b/c you cant tort an object) – ie
if you intend to hit a wall
b. Applies for battery, assault, false imprisonment, trespass to land/chattel
II. Battery & Assault
a. Battery is the 1) intentional act 2) causing 3) harmful or offensive 4) contact.
1. Intentional Act
i. Intentional touching/contact and intent to harm/offend
a. If a person has an intent to harm, they will be liable for all harm that actually
results. (Punch to knock air out but leads to a severe injury)
b. Intent induce imminent apprehension harmful or offensive contact
ii. Mental capacity
a. The majority of courts hold that both minors and incompetents will be held liable
for their intentional torts
i. However, some states will assume that children under seven are incapable
of harm or intent.
2. Causation
i. Liable for direct and indirect contact
3. Harmful or Offensive
i. Offensive contact – Contact is offensive if it offends a reasonable sense of personal
dignity. Reasonable person standard.
a. 3 ways
i. D’s purpose was to offend P
ii. People are generally offended by it
iii. D knew that P would be offended and acted anyway.
4. Contact
i. Contact can be direct or indirect.
a. Indirect: Causes plaintiff to come into contact with something/someone else
ii. D touches some intimate extension of P’s person
5. NOTE: awareness not necessary
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b. Assault is an 1) intentional act 2) causing 3) imminent apprehension of 4) harmful/offensive contact.
1. An act creates imminent apprehension if P is 1) aware of the act and 2) reasonably
apprehends immediate contact.
i. It does not mean immediate, in the sense of instantaneous contact…it means rather that
where will be no significant delay
ii. Fear and intimidation does not count
iii. It does not matter if D was actually capable or not (ie unloaded gun)
iv. Reasonable person standard
2. Words alone do not make the actor liable for assault unless together with other acts or
circumstances they put the other in reasonable apprehension of imminent contact.
i. Words can also negate assault
3. Conditional threats – assault if both are unprivileged (“your money or your life”). However, it is
different if D has privilege to insist the other (“Leave my property or I’ll carry you off myself”)
4. Causation is direct or indirect
III. IIED
a. Actor who 1) by extreme and outrageous conduct 2) intentionally or recklessly 3) causes 4) severe
emotional distress to another.
1. Extreme and outrageous
i. Examples of outrageous conduct
a. Extreme business conduct – Extreme methods of business conduct is construed as
outrageous conduct (ie methods of collection)
b. Misuse of authority
i. Ie teacher threatening/bullying students, bad boss
c. Offensive or insulting language only if there is a special relationship
ii. Repeated or carried out over a period of time
iii. Special Relationship situations
a. An abuse of power by a person with some authority over P
iv. Known sensitivity
a. If D knows P is more sensitive and susceptible to emotional distress and
intentionally causes distress.
b. Examples: children, pregnant women, elderly people
v. Extreme and outrageous must be from the perspective of the plaintiff, not so much as to the
society at large or another person
2. Intentionally or recklessly
i. Intent to cause emotional disturbance
ii. The act was reckless if it shows a conscious disregard to the risk of emotional harm
a. And fails to take precautions to prevent or reduce such distress.
3. Causation
i. But-for, cause in fact, proximate cause
ii. RIL – Since IIED is vague, courts may allow RIL come into play. They will allow that if
D’s conduct is likely to cause emotional distress and P experiences such distress, they will
let the jury decide.
4. Severe emotional distress
i. P must prove SEVERE emotional distress that is more than a reasonable person is expected
to endure.
ii. Liable for all emotional disturbance and harm that ensues
iii. Punitive allowed if conduct was improper motivated
5. 3rd person/bystander
i. Where D intentionally causes severe physical harm to a 3rd person, they are liable to P if 1)
P was present when the injury occurred 2) P was a close relative and 3) D knew P was
present and a close relative. *Intent or recklessness required
a. Presence
i. Some JX allow perception
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ii. Can be relaxed in special situations ie. Parent finds out their child was
molested
iii. Factors courts consider in determining an exception to the presence rule:
1. The relationship of the target of the conduct to P
2. Relationship between the person committing the conduct and P
3. The egregiousness of the conduct
ii. If P is not a relative but was present at the time and physically harmed, they can recover for
bystander.
b. DAMAGES: Multiple tort claims with IIED – some courts allow P to bring both claims while others must
force them to pick one. If you prevail in both claims, remember that you can only collect for one.
IV. False Imprisonment
a. False imprisonment is the 1) intentional act 2) causing 3) confinement 4) where plaintiff aware of
confinement or is harmed by confinement
1. Intent – Intent to confine
2. Causation – direct or indirect
3. Confinement (timing is immaterial, unless it is for assessing damages)
Confinement occurred when D used… leaving P with no reasonable means of escape.
i. Also applies to immediate family. (See McCann v Wal-Mart Stores, p 49)
ii. Confinement implies limited range of movement and it is not enough to exclude the
plaintiff from some space such as a bar or restaurant
iii. Types
a. Physical barriers
b. Physical force
i. Can be directed by withholding a property (ie keeping her purse so she
wont leave)
c. Threats or duress – P must show there is a reason to believe the threat can be
carried out and harm threatened must me immediate not some time in the future
i. Direct Threats/Demand of force
ii. Indirect Threat/Demand of force
1. D use an indirect threat of force when his acts or words reasonably
implied that D will use force against P
d. Instigates confinement – cause the person to be confined (ie calling cops n
reporting false info)
e. Failure to provide means of escape – Where P is 1) legally under D’s control and
2) it would be impossible to leave without D 3) D intentionally detains P
f. Shoplifting detention is allowable if 1) there is reasonable belief of theft 2)
detention conducted in a reasonable manner 3) for only a reasonable time 4) and
for the purpose of making an investigation
iv. Bounded area
a. P’s freedom of movement in all directions is limited and there is no reasonable
means of escape.
4. Plaintiff aware of confinement or harmed by confinement
i. Reasonable person believes they are confined
b. Principle: to preserve freedom of movement
V. Trespass to Land
a. Trespass to land is an 1) intentional act 2) causing 3) entry of person/object to person’s land.
1. Intent
i. Intentional entry
ii. Intentionally causes an object to enter land
iii. Unintentional but wont leave
a. **Unintentional entry + damage  negligence claim
iv. Transferred intent allowed but must show fault
2. Causation
3. The act is a physical invasion of P’s land.
i. Entry of person/object
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ii. Lawful right of entry expires
iii. Pollution, noise, gases, etc are not included
iv. Nonphysical - Since D’s intrusion was nonphysical in nature, P may sue if there is
substantial or unreasonable interference. Therefore, P should claim nuisance rather than
trespass.
v. Overflight - P may have a claim for trespass from overflight if 1) it is in the immediate
reach of the land and 2) it interferes with the use of enjoyment of P’s land
VI. Trespass to Chattels
a. A chattel is a property other than land.
b. Trespass to Chattels is an 1) intentional act 2) causing 3) the interference with another’s use of
property and 4) harm results.
1. Intent
i. Intent to interfere with another’s use and enjoyment of personal property
a. Still liable with mistaken belief
2. Causation
i. But-for, cause in fact
3. Interference
i. Any act that interferes with P’s right to possess his chattels is interference.
ii. D interferes if he damages the chattel or dispossess plaintiff of his chattel.
4. Harm
i. Harm occurs if it materially alters the physical condition, quality or value of chattel.
ii. Harm occurs if plaintiff is deprived use of property for substantial time
c. Owner or someone with immediate right can bring claim
VII. Conversion of Chattels
a. Conversion of chattel is an 1) intentional act 2) causing 3) interference of another’s right to exclusive
control of the chattel
1. Intent
i. Intent to exercise dominion over chattel
a. Even if the conduct was innocent, D is still liable. (buying stolen watch)
b. Accidents are insufficient.
2. Causation
3. The interference must be nontrivial.
i. Wrongful acquisition (theft, embezzlement)
ii. Wrongful transfer (selling, misdelivering)
iii. Wrongful detention (refuse to return to owner)
iv. Substantially changing
v. Severely damaging or destroying
vi. Misusing chattel
b. Damages: fair market value at the time and place of conversion. P is not obligated to take back property
once it is converted. Replevin
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Defenses to Intentional Torts
I. Consent
a. Consent is not an affirmative defense but it negates intent.
b. Express consent.
1. Mistaken consent is still consent unless D caused the mistake or knows the mistake and takes
advantage of it
c. Implied consent
1. A reasonable person would infer that there was consent. (Can be from custom ie bumping in a
crowd)
2. Implied by law – emergency situations
d. Here there was effective consent because the defendant reasonably thought there was consent.
e. There was informed consent because P understood the true nature of the consent.
f. NO CONSENT:
1. Induced by fraud.
i. However, the consent must be essential to the matter and not a collateral. The fraud must
have INDUCED it.
2. Not voluntarily given and defendant knew it.
3. Coercion/duress
i. The person must have the freedom to agree or disagree, or there is no consent.
4. Power imbalance
i. Jailer/prisoner
5. If consent is not meaningful and defendant knows this
i. Plaintiff incapable of understanding nature of act/ consequences/ moral significance (age,
IQ, drunk, incompetence)
ii. Plaintiff misled/mistaken as to true nature of act
g. STD - One who knows he has a venereal disease and knows that his sexual partner does not know of his
infection, commits battery by having sexual intercourse. Doe v Johnson
II. Self-Defense/Defense of Others
a. D can raise self-defense if 1) a reasonable person would believe that he is about to be attacked, 2) his
response was reasonable and not excessive to protect himself.
i. Most JX – NO duty to retreat
ii. Mistake does not negate defense
iii. Retaliation not allowed
iv. P is not allowed to claim self-defense unless D used a deadly forced when P only used a
non-deadly force.
v. Danger terminated – There is no privilege of self-defense if the defendant knows that the
danger has terminated
2. A reasonable response is what is necessary to prevent the harm.
i. Equivalence rule: if there is a threat of death or serious bodily harm. Then the defendant is
privileged to defend himself or another with an equivalent amount of force
3. Excessive force – Defendant is liable for whatever amount of the force is excessive and plaintiff
then has a privilege of self-defense to protect themselves from the degree of the force being
inflicted.
4. BYSTANDER: If D accidentally injures bystander, he can still raise self-defense. However,
bystander can sue for negligence.
b. D can raise self-defense to the DEADLY FORCE if 1) a reasonable person would believe that he is
about to be attacked 2) that would inflict death or serious bodily harm and 3) response was
reasonable and not excessive to protect himself.
c. D can raise self-defense to THIRD PARTY if 1) he reasonably believed that the 3rd person needed
self defense 2) and uses reasonable and not excessive force to protect the 3rd person.
1. Mistake in intervening – modern view holds that D is privileged to defend a 3rd person as long as
the actor correctly or reasonably believes that 1) 3rd person was privileged to defend himself and to
use the means of defense and the amount of force D used 2) intervention was necessary to protect
3rd person
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III. Arrest and Detention – For merchants
a. A person can raise arrest and detention if 1) there was a reasonable belief that a crime was
committed 2) person was detained on or near premises 3) for the purpose of investigation or turning
them in 4) for a reasonable amount of time 5) the act was reasonable.
1. Act was reasonable
i. Chasing is ok
2. The issue was whether arrest and detention included only on the premises, or off the premises as
well. Yes because it would strip merchants of the ability to recover merchandise and to apprehend
shoplifters.
IV. Defense of Property
a. Is permissible if 1) the action was reasonably necessary to defend property and 2) the force used was
proportion to the threat.
1. Reasonably necessary
2. Proportion to threat
i. Deadly force is not reasonable if there is no threat to life or limb.
b. This defense is not available against someone with a privilege (necessity, recapture of chattels) because the
privilege supersedes the privilege of the land possessor.
c. Repossession is chattel – When the person is taking your property and is long gone, you do not have
privilege to use force or arrest and detention to obtain your property
V. Privilege to Discipline
a. Parents have a privilege to discipline, and to use force and confinement to do so. The parents may use
reasonable force, as they reasonably believe necessary.
VI. Privileges to enter land/premises pursuant in connection w/ public rights
a. Officers are privileged to enter land to execute a search or arrest warrant
b. Public rights – A user of public utility or common carrier has the “privilege” to enter appropriate portions
of the premises.
c. Privilege to enter land to reclaim goods of one’s own
1. Wrongdoers land – D has privilege to enter land at a reasonable time in a reasonable manner to
demand the return of the chattel.
2. A person may reclaim their chattel on another’s land at a reasonable time and peaceful manner
upon notice to the land-owner.
VII. Necessity
a. Public Necessity
b. There is privilege of public necessity if 1) the action was intended to benefit the public 2) there was
reasonable belief that the action was necessary to avoid imminent public threat and 3) the response
was reasonable.
c. The individual rights of property give way to the higher laws of impending necessity. Necessity must be
clearly shown. A party is sued because they blew up a building to prevent a fire from spreading. Surocco v
Geary, 74
1. Compensation
i. Common law – if there is public necessity, there is no liability
ii. Some states like MN - even if there was public necessity, the state compensates
a. Policy: Individuals should not be forced to bear public burdens alone. If the
public benefits from a burden it imposes on others, it should pay.
d. Private Necessity
e. A person has a privilege to private necessity if 1) the action was intended to benefit him 2) there was
reasonable belief that the action was necessary to avoid imminent threat/address immediate need
and 3) benefit to the individual outweighed owner’s interest.
1. Private benefit
i. Does not need to be an emergency
2. When there exists a private necessity:
i. Owner will be held liable for interference if there was private necessity. Ploof v Putnam, p
77
ii. Property owner loses right to defend property
iii. No liability when no harm (other than loss of right to exclusive possession)
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iv. The person will be held liable, however, to the extent he or she causes damage to
another’s property or land. Vincent v Lake Eerie Transportation, p 78
3. Policy issues
i. Who should be liable? Another way to look at it is which party is in the better position to
compare the risk to the dock with risk to the ship. The party with both the most relevant
knowledge and the capacity to act on it should be liable.
ii. Unjust enrichment – unfair for someone to lose something for someone else’s benefit
iii. Risk issue – People are not held liable for a risk of non-negligently damaging property. (ie
driving past a neighbor’s house and car spins out of control and damage their property)
But if the risk is high, they can be held liable.
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Negligence
Negligence occurs when there is a 1) duty 2) breach 3) causation (in fact and proximate) and 4) damages
I. Duty of Care
a. Generally two classes of duty:
i. There is no duty to act
1. Exceptions:
a. Assumption of duty to act by acting
b. D created the risk
c. Special Relationships
d. Duty to control 3rd person
e. Owners and occupiers
i. Trespassers
ii. Licensees
iii. Invitees
iv. Attractive nuisance
ii. Those who create risk by doing something (misfeasance) owe standard duty of care to others that
may be foreseeably injured by his action.
1. Immunities
b. A person owes a legal duty to act as an ordinary, prudent, reasonable person under like
circumstances to avoid/minimize foreseeable risk of harm to others.
i. Failure for a party to take precautionary steps or procedures is not necessarily failure to exercise
ordinary care.
ii. Legal duty is when plaintiff’s interests are protected from the invasion of defendant.
iii. Foreseeable – harm was not only foreseeable but also too likely to occur to justify risking it
without added precautions
iv. Unforeseeable – the foreseeable harm was not probable enough to require precaution
c. Standard of care is measured by an objective standard. Always remain the same, but what changes
is the amount of care a reasonable person would take.
i. Characteristics of reasonable person
1. Normal intelligence
2. Normal perception, memory, at least minimum standard of knowledge
a. Forgetfulness can be forgiven for a specific reason (ie distraction, emergency)
b. Variance of knowledge over time (ie danger of asbestos)
c. Information vs knowledge
3. All the additional intelligence, skill, or knowledge they actually possess
4. Actors physical attributes
5. First two – anyone with less is still held to that standard. Second two – will apply with the
situation
d. Employers have a duty to exercise reasonable care and standard of care by prudent employers in similar
circumstances.
i. Economic perspective – a rule to promote efficiency. Not all risks are great enough to justify the
cost of preventing such risk.
ii. Assumption of employer liability – employer has a better and more comprehensive knowledge
than the employees and ceases to be applicable where the employees’ means of knowledge of the
dangers to be incurred is equal to that of the employer
e. Emergencies – Is covered by the negligence standard of care.
i. Sudden emergency doctrine – requires the person confronted with an emergency to do what an
ordinary prudent person would do under like circumstances.
ii. If D creates the emergency situation, they are held accountable.
iii. A person may have leeway if there is an emergency situation. Some people cannot react well to an
emergency situation and may appear negligent even though they were not.
iv. Greater risk of one’s person is justified to save life than is reasonable in protecting property.
1. Indiana Consolidated Insurance v Mathew, Man starts a lawn mower in a garage and it
lights on fire, burning the garage.
v. Jury instruction does not need to include an emergency instruction. Bjorndal v Weitman, p 87
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1. Policy: instructions are necessary because it is included in the reasonable person
standard, instructions can confuse jury, instructions are not neutral (they emphasize D’s
side of the case), it is difficult for trial judges to write instructions appropriately for cases
f.
Disabilities
i. Physical Disability
1. People with a physical disability are held to the same standard of reasonable care as
a person having such disability
2. However, a person who knows they have a disability has a duty to exercise the care
of a person with such knowledge.
a. Ie. Driving with epilepsy
3. Shepherd v Gardner Wholesale - “A person laboring under a physical disability such as
defective vision is not required to exercise a higher degree of care to avoid injury than is
required of a person under no disability”
a. Rule prevents arguments such as a blind person is negligent in crossing the street
because a person would not cross the street blindfolded
ii. Mental Disability
1. Insanity is no defense. They are held to the same standard of reasonable person under the
circumstances.
a. However, a person employed to take care of a patient known to be combative
because of Alzheimer’s disease cannot complain of the harm that occurs.
(Contributory negligence) Creasy v Rusk – Alzheimer’s patient
2. Some courts do not hold the mental disabled plaintiff liable for contributory negligence
because D may be responsible for P.
3. Policies behind holding individuals with mental disabilities to a standard of reasonable
care:
a. Difficult to make causal judgment and appropriate subjective standard. Ie a
schizo may drive well, how will we determine if his incapacity caused a negligent
act?
b. Difficult to distinguishing incapacity to poor capacity. Court will have to draw the
line between stupidity and propensity for bad behavior vs mental incapacity
c. Allocates losses between two innocent parties to one who caused or occasioned
the loss
d. Provide incentive to those responsible for people with disabilities and interested
in their estates to prevent harm and “restrain”
e. Remove inducements to fake a mental disability
f. Avoid administrative problems involved in courts and juries attempting to identify
and assess the significance of an actor’s disability
g. Child with mental disability is not held to ordinary child standards. His
capabilities is taken into account
iii. Unknown physical traits – protect defendants who are reasonably unaware of a physical limitation
or disability until it results in harm. Unforeseeable. If the event is foreseeable (seizure, diabetic)
they will be held responsible for not taking action.
iv. Sudden incapacitation – Where a person’s alleged negligence is caused by a sudden physical
incapacitation that is not foreseeable, there should be no liability.
g. Intoxication - People who are intoxicated are held to a standard of ordinary care of a person NOT
intoxicated.
i. Underlying reason: If the person creates the negligent situation, they are held accountable.
Defendant took unreasonable risks in drinking at all.
ii. Fork: what if there was an emergency and drunk guy HAD to drive to save someone?
1. It is unforeseeable that he was required to drive.
iii. If his overt conduct is blameless, intoxication is irrelevant and he is not liable
1. Not liable if he was drinking and driving speed limit
2. Liable if speeding because his conduct was faulty
iv. Intoxication can be used as evidence to support an inference that the actor’s conduct fell short of
reasonable prudent person standard
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v. Contributory negligence – same rules as intoxicated defendant.
h. Knowledge or Exceptional Skills
i. Professionals or one who has special skills is required to possess and exercise the knowledge and
skill of a member of that profession.
1. Duty to disclose – Doctor has a duty to disclose all risks so patient can make an informed
consent. Not doing so is a breach of duty
ii. Those who have superior judgment, skill, and knowledge are required to use it.
1. It is right to tell the jury that a reasonable person will use the relevant special knowledge
he has, but not right to tell the jury that he is held to a higher standard of care.
2. Policy issue: Encourage caretakers to be extra careful.
3. Hill v Sparks, p 95 earth moving machine
i. Children –
j. A child is held to the standard of care of a reasonably careful child of the same age, intelligence and
experience.
i. Some states, if you are under 7, you do not owe anyone a legal duty
ii. Adult activity - A child is judged under the adult standard of care if the adult activity 1)
requires adult skills and 2) the activity is normally operated by only adults.
1. Snow mobile vs Golf cart
2. Golf Cart issue: The golf cart that moves a maximum 12mph is not inherently dangerous
and does not require adult skills. Hudson-Connor v Putney, p 98
iii. Rule of 7 (under 7- no negligence, 7-14 presumptively incapable of negligence but permit
evidence to show capacity, above 14 – capable of negligence but can show incapacity)
iv. Policy: Why do we not take a person’s mental disability into account but we take a child’s age into
account?
1. Encourage child development - If the standard was “act as an adult do,” it would be
impossible and parents would not send their kids out. We want kids to be themselves and
do what children would do.
2. There is no issue of a person faking to be a kid like a person who would fake a mental
disability
3. Inappropriate to tax a child defendant with tort liability that would affect their entire life
when the child was incapable of taking greater care
4. Can be held contributory negligent unless D had the duty to protect child from his own
immaturity or fault.
v. Child with mental disability is not held to ordinary child standards. His capabilities is taken into
account
k. Vehicles – Reasonable prudent person standard. “Operator of a motor vehicle must exercise ordinary
care…”
i. This includes a duty to keep “a reasonably careful lookout and to keep same under such control at
night as to be able to stop within the range of his lights” Marshall v Southern Railway, p 100
ii. Chaffin v Brame, p 100 – Exercised ordinary care but hit a truck with lights off.
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II. Breach of duty
a. If D’s conduct falls short of the standard of care owed to P, then D breached the duty.
b. Variations:
i. Children
1. Exception maybe when engaged in adult/hazardous activities
ii. Physically disabled
iii. Experts/professionals
iv. Emergency
c. If a reasonable person 1) would have foreseen the harm and 2) would have taken steps to minimize
the risk, the D breached a duty.
i. Would reasonable person have foreseen a risk of harm?
1. Question is not whether technically foreseeable, but how remote
2. Would a reasonable person in similar circumstances avoid or minimize the risk?
3. Was the probability of the harm great enough that a reasonable person would try to avoid
or minimize the risk?
4. If no, then not negligent.
5. If yes, then move on to #2
ii. Would reasonable person have taken steps to avoid or minimize the risk?
1. If no then not negligent. If yes, then negligent.
2. Value life over property
3. Risk-utility balancing
a. Factors:
i. The likelihood of the risk
ii. The amount of harm if it occurs
iii. Weighed against the usefulness of conduct and cost of making it safer
4. Learned Hand formula
5. Community norms/customer expectations
6. Evidence of what reasonable person would do:
a. Internal policies – Compare conduct to what a reasonably person would do in that
situation
b. Statutes/ordinances/regulations – Adopt specific rules about specific kinds of
conduct such as speeding, condemning that conduct as at least prima facie
negligence
i. Custom – customary community behavior (not used as standard but
persuasive evidence)
d. Learned Hand formula (calculus of risk) – used to determine if D has met required standard of care
i. Breach if B< P*L
1. B = burdens to actor of taking steps to avoid or minimize risk
2. P = probability harm
3. L = magnitude of harm
ii. Breach if B< (P (do nothing)*L) – (P (take precautions)*L)
1. B = burdens to actor of taking steps to avoid or minimize risk
a. Includes direct costs + potential risk
b. Potential risk = (P(new risk) *L(new risk))
i. New risk = risk associated with avoiding or minimizing original risk
2. P = probability harm
3. L = magnitude of harm
iii. Breach if: B < Reduction Risk to Plaintiff + Reduction Other Risks
1. Reduction Risk to Plaintiff = (P do nothing*L) – (P take precautions*L)
2. Reduction Risk to Others = (P other harms do nothing*L other harms) – (P other harms
take precautions*L other harms)
3. B = burdens to actor of taking steps to avoid or minimize risk
a. Includes direct costs + potential risk
b. Potential risk = (P new risk *L)
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i. New risk = risk associated with avoiding or minimizing original risk
4. P = probability harm
5. L = magnitude of harm
iv. Benefits: economic benefits (businesses will weight risks and take precautions to avoid loss), helps
protect everyone’s rights and freedom because it can weight everything rather than taking an
intuitive approach
v. Pitfalls: Difficulty in quantifying everything (ie a life), unworkable in some cases (what if D just
simply forgot)
e. Res ipsa loquitor - Circumstantial Evidence – doctrine of– prove duty through breach
i. IF there is NO direct evidence of negligence, RIL can be used as evidence of negligence
1. Presumptive negligence –There must have been negligence, or the accident would not
have happened.
2. Defendant has burden to show he was not negligent
3. If the facts show what D did in detail and it was reasonable care – don’t use RIL
(we only use when we need to infer what he did)
ii. To establish RIL, P must prove that 1) the event would not occur without negligence 2) other
reasonable causes are sufficiently eliminated by the evidence 3) the negligence was in the
scope of D’s duty to P
1. The event would not occur without negligence
a. Not NEVER but USUALLY DOESN’T occur. More than 50% chance, may apply
RIL
2. Other reasonable causes are sufficiently eliminated by the evidence
a. Must also eliminate causes by P or 3rd persons.
b. Probability Rule
3. The negligence was in the scope of D’s duty to P
a. It was in D’s control
iii. Control by D: P can argue that the negligent act was in D’s control. The court can apply either the
traditional standard or the 2R standard.
Traditional vs 2R
a. Traditional:
Under the traditional rule, D must have Exclusive control, that is he is the
only one only one whose negligence could have caused the event.
(ie when it’s a hotel chair thrown out – it could be a guest)
i. If it is undeterminable who is the wrongdoer, RIL does not apply, unless P
can exclude all other people.
ii. If there is pure speculation, RIL does not apply.
b. New Rule:
If the new rule applies, then P can use RIL if the jury can infer that D was
more likely responsible than anyone else.
i. Under this rule, RIL can apply even if there is contributory negligence.
ii. P can use RIL by showing that D had control at the time of the probable
negligence and can do so by excluding the negligence of others
iii. Giles v New Haven (P operates elevator, elevator was still in D’s control
even though it was not exclusive.)
iv. Exception to the rule Santiago v First Student, Inc., (Bus accident) Where a plaintiff cannot prevail
if they cannot prove what the defendant actually did.) P must show the specific conduct vs Byrne,
where showing conduct is not necessary. – Different because there are possibilities of nonnegligence with Santiago
v. Probability Rule #1: Fact of accident suggests more likely than not negligence caused P’s harm
1. Koch – Power lines fall without an explanation
vi. Probability Rule #2: Defendant more likely than not = tortfeasor
1. Majority rule: When 2+ potential Ds, no RIL unless (1) D1 = most likely tortfeasor, or
2. Shared responsibility (Collins Rule)
a. Collins v Superior Air-Ground Ambulance Service (mom returns back injured by
either hospital or ambulance)
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f.
b. Where there are only 2 D’s who had consecutive control over plaintiff, and either
one could have caused P’s injuries, and both are named in the complaint, the
complaint is sufficient for pleading purposes to raise the inference of negligence
under RIL. (Burden shifts to D)
vii. Factors Affecting Probability Analysis:
1. Eliminating potential non-negligent causes
2. Eliminating other potential tortfeasors
3. P or D could have presented evidence and did not do so
4. “Exclusive” control/others involvement
viii. Procedural effects when the rule applies
1. P gets to the jury on the 2nd element – breach of duty.
2. P still has burden of proof of breach of duty
3. Some jurisdictions, app of RIL creates a presumption that D was negligent, so D must
prove that he is not
4. If D presents evidence, the jury still needs to evaluate the evidence
5. Even if you believe one of D’s evidence, there may be other possible causes, so RIL can
still come into play
Negligence per se
i. Statute
1. Provide private cause of action  no negligence per se, but can be used as evidence (ie
FELA, OSHA)
2. Statute too complicated  no negligence per se (ie FDA)
3. If the government enforces the statute  negligence per se applies.
ii. D can be held liable for negligence per se if there is a statute/regulation that 1) clearly defines
the required standard of conduct 2) is sought to prevent the type of harm D caused 3) P is a
member of the class of persons it was designed to protect and 4) the violation is a proximate
cause of P’s injury.
iii. FORK: Some states use negligence per se to prove negligence and some use it as only evidence
1. “Martin v Herzog” approach – violation determines negligence (Car hits a buggy with no
lights on)
iv. Results from the violation of a specific requirement of law or ordinance, a matter of law, so it is
for the judge to decide
v. Excused
1. 3R –The list of excusable situations is not intended to be exclusive. An excused violation
of a legislative enactment is excused and not negligent if:
a. The violation is reasonable in light of the actor’s childhood, physical disability, or
physical incapacitation
b. The actor exercises reasonable care in attempting to comply with the statute
c. The actor neither knows nor should know of the factual circumstances that render
the statute applicable
d. The actor’s violation of statute is due to the confusing way in which the
requirements of the statute are presented to the public
e. The actor’s compliance with the statute would involve a greater risk of physical
harm to the actor or to others than noncompliance
2. Ignorance about the law is inexcusable, ignorance of the facts can be excusable (Impson v
Structural Metals, Inc.)
3. A person cannot argue that they did not agree with the statute’s provision, ignorant of the
law, or that other people customarily violated the statute also.
4. 2nd restatement vs 3rd restatement – mental incapacity was removed – because the
reasonable person standard applies to people with mental incapacity also
vi. Counter arguments
1. Argue that they did not violate it and it will be a jury decision
2. Argue the language of the statute or one of the elements
3. Conduct was outside of the scope of the statutory command
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g. Slip and Fall
i. D is liable for slip and fall if 1) he created the dangerous condition or 2) had constructive
knowledge of the dangerous condition.
1. Notice of a dangerous condition may be established by circumstantial evidence.
2. In the view of reasonable and prudent owner
ii. Slip and fall can be established in 3 ways:
1) D created and failed to take reasonable steps to abate the hazard;
2) D did not create the hazard, but had constructive notice and failed to take reasonable
steps to prevent injury or
3) D’s operations made it foreseeable that there would be a dangerous condition and D did
not take reasonable measures to discover and remove it.
1. D created and failed to take reasonable actions to abate the hazard
(ie waiter spills sauce on floor)
a. “Reasonable” – community expectation not to create hazards
2. The defendant did not directly create the condition but discovered or should have
discovered a condition created by others (constructive notice) and failed to take reasonable
steps to prevent injury
a. Constructive notice – discovered or should have discovered
b. Chief method to prove that defendant should have constructive notice of the
hazard is to show that the substance has been there for a relatively long time.
3. The defendant’s mode or method of business operations made it foreseeable that others
would create a dangerous condition, and the defendant failed to take reasonable measures
to discover and remove it
h. MANUALS AND CUSTOM
i. Manuals – A manual cannot be used to determine standard of care but can show what a
person should do.
1. Walmart v Wright (Lady slips in Walmart)
2. Rules and policies in the Manual may exceed its view of what is required by ordinary care
in a given situation.
a. Fork: Safety manuals or codes created by private or governmental organizations
can be used as evidence that failing to use them fell below standard of reasonable
care.
(But they do not set standard of care, UNLESS they are adopted by statute or
ordinance)
3. Policy issues with using the manuals as ordinary care:
a. If they used the manual as a standard of reasonable care, it can make retailers set
lower standards so they won’t be held liable for accidents
b. The manual could be written for other reasons besides safety, such as
appearances or cleanliness
c. It is unfair to use employee manuals as a reasonable person standard because the
purpose of the manuals may not be for safety.
d. The law has long recognized that failure to show a party’s precautionary steps or
procedures is not necessarily failure to exercise ordinary care.
ii. Custom - Customs can be used as evidence of foreseeable risk.
1. Fork: Some customs may not arise form safety considerations. If so, it alone is
insufficient evidence, but a chain of proof might help.
2. Use safety custom to prove:
a. Harm was foreseeable
b. Defendant knew or should have known of the risk
c. And might prove the risk was “unreasonable” unless the customary precaution is
taken
d. That safety precaution was feasible
iii. Why we wouldn’t want to equate reasonable person standard to regulations: Sometimes, a
reasonable prudent person may have to go beyond complying with building codes, regulations,
ordinances, statutes (out of date, circumstances, standards are too low)
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iv. FORK IN CASE
1. Duncan v Corbetta (Stairs case) - Proof of a general custom and usage is admissible
because it tends to establish a standard by which ordinary care, thus foreseeable risk.
2. The T.J. Hooper (tug boat did not use radio)- Although compliance with the custom of the
community or of others in like circumstances is evidence that the actor’s conduct is not
negligent, but does not preclude a finding of negligence.
v. How to counter a custom: show that the custom is not up to date. Or that a reasonable prudent
person would go beyond custom.
III. Cause in Fact
a. P must prove conduct by direct or circumstantial evidence.
b. But-for test - Without D’s conduct, P would not have been injured
i. It is not necessary that D’s act be the sole cause of P’s injury, only that it be a cause.
c. Substantial factor test: Although there are multiple factors that could have independently cause the
injury, D’s conduct is the substantial factor in causing the injury so there is causation.
i. Ie. If two bars serve P enough booze to get legally drunk the both are cause in facts b/c they both
were substantial factors in getting him drunk and thus causing the accident. OR 2 fires burning
down a house
ii. Injury can’t just be a possible cause it has to be a probable cause. (did glass cut cause cancer? It is
possible but not probably
iii. Preemptive causation – cause was going to happen by 2 different people but one happened first.
The other is still liable
iv. Duplicative causation – if there are 2 D’s and either could have been liable, they are both held
liable
d. Group Liability (Market Share theory, see below) - 2+ Tortfeasors
i. When divisible injury:
1. If there is a divisible injury, each D will only be liable for injuries he caused.
ii. When indivisible injury:
1. If the injury is indivisible, both Ds are held liable and use fault-apportionment to
determine liability.
a. Depending on JX: joint and several liability, etc.
b. We cannot apportion liability by causation.
2. “Indivisible” when:
a. Single injury and each D a but-for cause (Scenario #2),
b. Single injury and each D a substantial factor (Scenario #5),
c. Divisible injury, but don’t know which D caused what injury
i. Landers v East Texas Salt Water Disposal (2 companies spill salt water
and oil into a lake and kill the fish. Not sure who)
ii. If there are 2 or more D’s and the injury cannot be apportioned with
reasonable certainty, then all D’s will be held jointly and severally liable
for the entire damages and P can sue all of them or separately.
3. As between Ds, apportion liability based on comparative fault
iii. If you don’t know which negligent D caused the harm:
1. If it is undeterminable which D was negligent, then they are jointly liable and burden
shifts to D to show that they are not liable.
2. Summers v. Tice - 2 D’s fired at the direction of P and one bullet hit P.) Both are held
liable.
3. We normally don’t hold people liable for negligent acts that does not cause harm but they
are held responsible for obscuring the proof.
IV. Proximate Cause
a. D’s negligent act is a proximate cause of P’s harm if it the harm was a foreseeable and a reasonable
person would have taken steps to prevent the risk.
i. Underlying principle: Liability for negligence is liability for the unreasonable risks the defendant
created, not for reasonable risks or for those that were unforeseeable.
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b.
c.
d.
e.
f.
ii. Policy: Intentional vs unintentional – intentional tort, the person has a higher degree of
culpability, vs unintentional, it would be unfair to hold them responsible for unexpected
consequence
iii. People will fear liability if proximate cause is not limited. But with intentional torts, we are not
afraid of complete deterrence.
Test: Was the risk foreseeable and would a reasonable person have taken steps to prevent the risk?
General Rule:
There is proximate cause if the resulting harm was within the scope of risk of D’s negligence.
i. Not proximate cause if P in position of relative safety
ii. Abrams v City of Chicago (Lady in labor, ambulance did not take her so J drove her and was high
and ran a red light, crashed and lady lost her baby.) D’s action was not a proximate cause for
injuries, because they could have not reasonably anticipated such an accident. Millions of women
make it safely to the hospital by private transportation.
Harm not w/in scope of risk if it was not foreseeable:
i. Reasonable person in similar circumstances would not have foreseen the type harm or risk.
1. Medcalf – broken buzzer leads to attack at a condo, not a foreseeable harm
ii. Reasonable person would have foreseen the type of harm or risk, but not to the general class of
persons that includes P; or
iii. Reasonable person would have foreseen general type of harm or risk, but would not have taken
greater precautions to avoid it than D took
Harm w/in scope of risk if:
i. Reasonable person in similar circumstances would have foreseen harm or risk
1) of same general type, and
2) to the general class of persons that includes the P, and
3) would have taken greater precautions to avoid it than D took
1. General rule: Actual harm can be w/in scope of risk even if exact harm, extent of harm, or
exact manner of its occurrence not foreseeable
Was the harm reasonably foreseeable?
i. Type
Under Hughes, even if the cause was unforeseeable, D is liable if the type of damages were
foreseeable.
1. Hughes (A lamp had a foreseeable danger, but the danger occurred in an unpredictable
way.)
Even though the cause of the accident was unforeseeable, the result (burns) was
foreseeable, so it qualifies for proximate cause.
2. Policy: It would be too narrow a view to hold that those who created the risk of fire are
excused from liability for the damage simply because it came about in an unforeseeable
way.
ii. Method
EXCEPTION TO TYPE
Under Doughty, if the harm was foreseeable but the method causing the harm was
unforeseeable, D is not liable.
1. Doughty (D accidently knocked asbestos into molten liquid, did not splash but changed
chemically leading to a splash later, harming P. Found for D.)
2. The item dropping and causing a splash was foreseeable, not the chemical change. Both
events may cause the same thing but are entirely different. The chemical change was not
foreseeable.
3. When we have a completely unanticipated mechanism causing an anticipated cause, then
it may be out of the scope of risk.
iii. Extent
If D is responsible for some harm to P then he is responsible for all harm that ensues
a. If D causes P to lose one eye and its P’s only eye, D is responsible for total
blindness.
2. Hammerstein (D did not maintain fire alarm. P was diabetic and had to walk down stairs,
injured his foot, which lead to gangrene. Held liable for all harm.) It was foreseeable that
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if the fire alarm was unreasonably faulty, harm to a certain type of P would result (foot
injury). Although the extent of the infection was unforeseeably, the underlying injury
should have been.
3. Thin skull rule –
Although the extent of the harm was unforeseeable, the thin skull rule holds that D
takes P as he finds her and is liable for whatever extra harm that results.
a. NOTE: there must still be fault and must be able to cause some harm to a normal
person. If there’s an act that usually does not harm people, but harms a person
with a specific illness, then D is not negligent.
b. Bumped into a hemoph. – wouldn’t matter b/c the eggshell skull rule says you
take the P as you find him (bump could foresee some harm)
c. CAUTION: we determine proximate cause once we determine that actions were
negligent.
iv. Danger Zone PALSGRAF!!
USE DANGER ZONE IF THERE WAS AN UNFORESEEABLE PLAINTIFF
If P was outside the zone of danger, then P’s harm was unforeseeable.
1. Cardozo view (Zone): Under the Cardozo view, P can recover only if a reasonable
person would have foreseen P’s risk under the circumstances. (Foreseeable zone of
danger)
a. Cardozo ruled the same way but said you didn’t even have to look at causation b/c
it was a duty analysis (he owed her no duty)
2. Andrews view (Anyone): D owes a duty to anyone who suffers injuries as a proximate
result of D’s breach of duty.
3. Palsgraf v Long Island Railroad (Box of fireworks incident harms a lady out of the area of
risk)
a. D is liable only a) for types of injuries foreseeably risked by his negligence
and b) to classes of persons foreseeably risked by his negligence
g. Intervening/Superseding causes
i. If the intervening act was foreseeable then it doesn’t block the first event from being the
proximate cause. If the intervening act was unforeseeable then it acts as a superseding cause
and prevents the first act from becoming the proximate cause.
h. Intervening Causes: A force which takes hold after the D’s negligence and which contributes to that
negligence in producing the P’s injury.
If an intervening act is foreseeable, then it does not stop the first event from being proximate cause.
i. Dependent intervening forces are always foreseeable:
1. Subsequent medical malpractice: D is liable for the aggravation of P’s harm from
subsequent medical malpractice.
a. Medical malpractice does not break the causal chain
2. Negligence of rescuers: Rescuers are a foreseeable intervening force so D is liable for
their negligence
a. See also Rescue doctrine
3. Efforts to protect person or property: D is usually liable for negligent efforts of persons
to protect life or property due to D’s negligence.
4. Reaction forces: D is liable for any harm inflicted by his negligence if it creates a
reaction.
5. Subsequent accident: If P suffers a subsequent injury following her original injury, and
the original injury was a substantial factor in causing the second accident, D is liable.
ii. Independent Intervening forces are foreseeable if D’s negligence increased the risk that these
forces would cause harm:
1. Negligent Acts of 3rd persons:
D is liable for harm caused by negligent 3rd persons if such negligence was a foreseeable
risk created by D’s conduct.
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i.
j.
a. Derdiarian v Felix Contracting Corp (P was injured from negligence of 3 parties
on road construction) D argues the negligence of the other 2 parties supersedes
D’s negligence.
b. If the risk created by D’s negligence is foreseeable, then the precise manner of the
event does not need to be anticipated. (Applied Hughes)
c. Plaintiff must show that D’s negligence was a substantial cause of the events,
which produced the injury. P need not demonstrate, however, that the precise
manner in which the accident happened, or the extent of injuries, was foreseeable.
d. An intervening force which falls squarely within the scope of the original risk will
not supersede D’s responsibility.
rd
2. 3 person criminal acts or intentional tort
If D’s negligence created a foreseeable risk that a 3rd person would commit a
crime/intentional tort, then D is still held liable.
a. But D owes no duty to criminals.
b. (the kid who stole his boat and got hurt even though he left the keys in the boat =
attr nuisance)
3. Acts of God will not cut off D’s liability if they are foreseeable.
4. Any extra risk created by a negligent tortfeasor is the proximate cause of Plaintiff’s
injuries if it is reasonably foreseeable.
a. Ventricelli v Kinney (D loaned P a car with a defective trunk. While he was trying
to fix it, another car struck him.)
i. It was unforeseeable that a parked vehicle in a parking area would strike
him, even though there was negligence from D
ii. Did D’s negligence put P’s position in relative danger?
b. Marshall v Nugent (D’s truck creates a risky situation, P gets hurt by trying to
direct traffic)
i. Plaintiff’s injury not too remote in time or place from the negligent
conduct of Defendant. Defendant put Plaintiff in a dangerous situation.
c. Difference between Vetnricelli n Marshall, in Vetnricelli P was not in danger, but
Marshall, P was placed in a dangerous position because of negligence. The risk
created by D in V. was gone, but risk created in M was still going on
i. There are a variety of risks with negligent driving so it would be
impossible to predict how a negligent act would work out to another’s
injury. Yet this in itself is no bar to recovery.
Superseding Cause: May prevent D from being liable. Cancel the D’s liability b/c it is found that the
intervening cause sufficient to prevents the D’s act from being the proximate cause of the P’s injury.
If the intervening act was unforeseeable then it acts as a superseding cause and prevents the first act
from becoming the proximate cause.
i. Bizarre, unforeseeable events, acts of God
ii. Criminal acts (but not if the person who is negligent was supposed to be preventing that criminal
act, e.g. mace manufacturer)
1. Not bound to anticipate the criminal acts of others.
2. However, some courts, scope of risk extends to foreseeable criminal acts, but not the
ultimate harm.
3. But other courts go back to scope of risk and look at the ultimate harm.
iii. Intentional torts/ Malicious act of 3rd person
1. Watson v Kentucky Indiana Railroad (Railroad incident and a person throws a match and
causes an explosion.)
2. If the intervening agency is something so unexpected or extraordinary as that D could not
or ought not to have anticipated it, he will not be liable.
iv. If simultaneous – one cause does not supercede the other. When two things are simultaneously
negligent they will not supercede
v. If antecedent – unforeseeable, long-shot, unknown, intentionality of the intervener, intervening
crimes, (Intervening criminal activity of the third party) – these type of intervening causes
supersede liability.
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vi. Examples
1. D leaves his keys in his car – he can foresee a third person stealing it and is probably part
of the same general risk that makes leaving a key in the ignition negligence in the first
place. So D will be the proximate cause – Still argue intervening superceding criminal
activity but then say that you could foresee this. (above)
2. D leaves explosives around terrorists and a terrorist steals them – again highly foreseeable.
3. D leaves his car parked in the middle of the road, though careful drivers would miss it.
Negligent drivers are always foreseeable, so a third party’s negligence in driving is almost
never superceding. 4. Rescuers should be argued to be the superceding cause of their own injuries: Yet rescues
are foreseeable “danger invites rescue” so even if the rescuers negligently hurt P, D is still
responsible for those injuries (still = proximate cause). Medical malpractice is also
foreseeable unless its gross malpractice (cutting off the wrong arm)
vii. Suicide rule: Suicide supersedes cause of P’s harm and frees D from liability
1. Exceptions:
a. Where D’s tortious conduct induces a mental illness or an “uncontrollable
impulse”
b. Where there is a special relationship between 2 parties that presumes or included
knowledge by D of P’s risk of committing suicide
c. Unless, D’s negligence rendered the decedent unable to appreciate the selfdestructive nature of the suicidal act, or unable to resist the suicidal impulse
2. Policy: People are considered autonomous actors, so you and you alone are responsible
for your actions and no one else should be held liable
3. Policy reasons: 1) Suicide is an immoral and culpable act. 2) Reluctance to impose a duty
to protect others from harm 3) the inordinate burden to care for another and have the
burden to foresee and prevent suicide 4) the unforeseeability of an intentionally selfdestructive act
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Special Situations of Negligence
I. NIED a. FOLLOW NEGLIGENCE PFC.
b. Types:
i. Fright-to-Self: D’s conduct puts P atii.
iii. Direct Victim: Direct duty to reasonably protect P from emotional distress:
1. Arises from pre-existing special relationship between P and D
2. D assumes duty
3. Imposed on D as matter of law
c. Depending on what the jurisdiction follows P may recover by arguing one of these theories.
d. Argue all three of the 3 possibilities:
i. Direct physical injury
ii. Zone of danger
iii. Bystander not in the zone
iv. 1st step: determine if it is a bystander (fear for another) or if it was fear for their own safety
e. Fright-to-self – P must prove one of the elements below PLUS proof of emotional injury
i. Direct Physical Injury (traditional approach, Mitchell)
1. P must suffer from physical injury to recover for NIED.
2. If P has direct physical Injuries then the emotional distress may be tacked on as an
additional element of recovery (parasitic damages)
ii. Physical Impact
1. There must be physical impact rather than physical injury, even if no injury results
iii. Zone of danger
1. Recovery only where D’s negligence placed P in danger of physical injury and b/c of the
danger P suffered emotional harm
2. Most states permit recovery if the P was in “the zone of danger” – zone in which a
reasonable person would fear physical injury from the result of D’s neg - - 3. Argue Against by saying they weren’t in the zone of danger or that it wasn’t a relative
f. Bystander Recovery (not in the zone) –Fear for someone else
i. 2 approaches: Thing or Dillon, or Camper
ii. Dillon:
D has a duty reasonably protect bystander from emotional distress when foreseeable
1. Factors:
a. Closely related
b. Close to the scene
c. Shock must result from Contemporaneous sensory observation of the accident (not
finding out later)
2. Must have serious emotional distress that manifests into physical injuries later– In this
case no direct physical impact needed just severe emotional distress) (even something like
headaches and loss of sleep will suffice)
3. However you need a physical Injury in this case
iii. Thing:
D has a duty if
1) P is closely related to 3rd person
2) was present at the scene when it occurred
3) and was aware of D’s conduct causing injury and
4) as a result suffers from serious ED that is not an abnormal response under the circumstances.
1. Relation: must be family. Some JX allows an engaged couple to recover.
2. Present at scene
a. Delayed perception is not recoverable but some courts allow recovery where P
arrived at the scene shortly after before there is a material change in the situation
iv. Camper:
1. Imposes a duty to avoid physical harm and emotional harm
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2. But Harm must be serious/severe emotional harm plus expert medical/scientific proof
g. Direct Victim: Direct duty to reasonably protect P from emotional distress:
i. Arises from pre-existing special relationship between P and D
ii. D assumes duty
iii. Imposed on D as matter of law
h. Exceptions – mishandling of a corpse, false death report of a family member, false report of illness
i. Courts will NEVER allow recover if they simply hear about it later
II. Nonfeasance – AFFECTS DUTY OF CARE
At common law, a person owes another no duty to take active or affirmative steps to protect Plaintiff from
harm, unless there is a special relationship.
a. Policy: people should not count on nonprofessionals for rescue. People will be more careful if they know
they won’t be rescued
b. EXCEPTION TO NO DUTY
i. If D conduct creates the risk
ii. Statute/ordinance requires D affirmatively protect P
iii. Voluntarily undertaking care (Once they voluntarily do so, they assume the responsibility and is
held to reasonable person standard.) (Wakulich or 3R)
iv. Special relationship
v. “Relationship” based on fairness principles (Podias)
vi. Action as undertaking + reliance (Florence, Kircher)
vii. Duty not to unreasonably interfere with others attempts to help
c. Special relationships
i. Situations that require affirmative efforts to rescue:
1. Carrier-passenger
2. Innkeeper-guest
3. Land owner-lawful entrant
4. Employer-employee
5. School-student
6. Landlord-tenant
7. Custodian-person in custody, not exclusive
d. Cases
i. Yania v Bigan – Guys jumps into water hole. D owed P no duty to rescue him, unless D was
legally responsible for placing D in the perilous position.
1. Unless D is legally responsible for placing P in a perilous position, D has no duty to
rescue.
2. P was not a child but was an adult in full possession of his mental faculties. Therefore, if
D urged him to jump, it was his decision and D is not liable. Similar to suicide theory.
3. Critical question - Did they do something, an affirmative act, that changed the status
quo of P?
ii. Podias (3 kids hit a cyclist) - Diverges because they have a relationship with P (they hit him)
1. To determine duty, must look at the circumstances and weigh with fairness, public policy,
common sense, and morality.
2. “Responsible for the state of affairs”
e. Voluntarily Undertaking Care
FORK: Wakulich (Undertaking care) v. 3R (Duty not to unreasonably interfere with others attempts to
help. Can hold a person liable.)
i. Under Wakulich, if D voluntarily helps P, he assumes a duty and will be held liable for harm
caused by his failure to exercise due care.
Wakulich – D negligently cares for P after getting her drunk.
1. They were not liable for serving her alcohol, however: They decided to take care of her,
thus assumed a duty, and did so negligently, leading to her death.
ii. Under 3R, If D discontinues aid, he will be held liable if he acted unreasonably and leaves the
person in a worst condition than they were before
iii. (Or If they discontinue aid, if the person is no worst off, then no liability)
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1. Note: Rhodes – called security but it is not sufficient to consider it as voluntarily
undertaking care
f. Action as a Promise or Undertaking of Duty –
i. Under the traditional rule, a municipality cannot be held liable for failure to furnish
adequate police protection.
1. A municipality owes a duty only to the general public.
ii. EXCEPTION (Florence): A municipality owes a duty to go forward if:
1) the duty assumed constituted more than a general duty to the public which,
2) created reliance by others that would commonly result
3) and withholding the benefit will risk injury.
1. Florence v Goldberg - Cop on duty to watch kids cross intersection so mom
a. Cardozo: If conduct has gone forward to such a state that inaction would
commonly result, not negatively merely in withholding a benefit, but positively or
actively in working an injury, there exists a relation out of which arises a duty to
go forward.
iii. Some JX add a rule to Florence that D must have direct contact with P.
A city (D) will be held liable if 1) they voluntarily undertake a duty 2) D has direct contact
with P and 3) P justifiably relies on them.
1. Kircher v City of Jamestown – girl gets kidnapped
2. A city is not held liable for negligent exercise of government functions unless it is a
special relationship with claimant. But if they voluntarily undertake to act on behalf of a
citizen who detrimentally relies on an illusory promise of protection offered, they will be
liable.
iv. Note: Whatever was reasonably taken by D, it must be within the scope of duty to be liable.
g. Public Duty Doctrine
Holds that public entities and officers are not liable to individuals for failure to carry out a duty, even a
statutory duty, owed to the public at large rather than to particular individuals or groups.
i. Ie failure to arrest drunk driver
ii. No private person can recover for an officer’s failure to enforce a statute
iii. EXCEPTION: However, if the statute creates a special duty to a particular group rather than the
general public, entity may be held liable.
1. ie domestic violence statute
iv. Duty may be narrowed and liability imposed if the officer/entity takes affirmative action and
endangers P or if the duty becomes individualized because of a special relationship with P
v. Exception to duty doctrine where
1) There is direct contact or privity between the governmental agency and P, which sets the latter
apart from the general public
2) There are express assurances given by a public official/agency, which
3) Gives rise to justifiable reliance on the part of the plaintiff
k. Duty to protect from 3rd persons
i. General rule: A private person has no duty to act affirmatively to protect another from
criminal act by 3rd person absent a special relationship between parties.
ii. Exceptions:
1. Common carrier-passenger
2. Innkeeper-guest
3. Business invitor-invitee
a. Includes a business or other possessor of land that holds its premises open to the
public with those who are lawfully on the premises
4. Voluntary custodian-protectee
5. Employer-employee
a. Employer must know about it and harm is within the scope of the employment
relationship, harm must be imminent
6. School-student
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iii.
iv.
v.
vi.
a. Marquay v Eno, (did not warn about sex abuse) owe a duty because school
employees stand in as proxies for parents. Duty to report if it would have
prevented abuse.
b. Duty for student on student violations
c. The care owed is that which “a parent of ordinary prudence would observe in
comparable circumstances”
7. Landlord-tenant
a. Landlords owe a duty to protect tenants against attacks by 3rd persons based on
foreseeability. (even dangerous tenants)
b. Duty to keep areas reasonably safe.
c. When the landlord brings in the risk, ie leasing space to a mental place housing
criminals. Held liable because he introduced the harm. “Conduct creates the risk”
If there is a special relationship, D has a duty to exercise reasonable care to protect P if 1) the
risk is within the scope of the relationship and 2) the risk was foreseeable and 3) imminent.
(Iseberg, Posecai)
1. No liability if they do not know of the danger or cannot reasonably foresee
2. Imminent – “set in motion”
Based on relationship b/w D and third party
D has a duty to protect if 1) there was a special relationship with 3rd person 2) D had the
ability to control and 3) the risk was foreseeable to P.
a. Ability to control – D must have actual ability and authority to control 3rd party’s
action.
b. *However, courts typically characterize duty to protect as duty to control third
party, not duty to warn P
c. *Reminder: Duty to protect if affirmative act creates risk (Brigance) or falls under
one of other exceptions to no duty rule
d. See Brigance
Cases:
1. Posecai v Wal-Mart Stores - Lady gets robbed at Sam’s, an area where there has been
abundant criminal activity. Did D have a duty? No, not foreseeable using the balancing
test
a. Policy considerations: based on circumstances, various social, moral and
economic factors, including fairness imposing liability and the economic impact
2. SELLING LIQUOR - Brigance v. Velvet Dove Rest., - P sues restaurant for selling liquor
to a person who hit them.
a. Old rule: seller is not the proximate cause
b. New Rule: One who sells alcohol on the premises consumption has a duty to
exercise reasonable care not to sell liquor to a noticeably intoxicated person.
c. Not unreasonable to expect a vendor to foresee the risk of harm
d. NOTE: Selling liquor is an affirmative act and not nonfeasance
Negligent entrustment – A person in control of a chattel owes a responsibility not to entrust that
chattel to a person whom the entruster knows or should know is apt to use it in a dangerous way.
1. Once that duty of care is imposed, the negligent entrustment case is just like any other
negligence case with the same elements. (alcohol, cars, guns, etc)
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V. Landowner’s Duties (Common Law) AFFECTS DUTY OF CARE
i. Duty not to let your premises fall into disrepair
ii. Adjacent land – Owner owes no duty to warn or protect others from a defective or dangerous
condition on his neighbor’s premises
iii. Person is liable for wanton conduct but not negligence – Gladon: even if the train driver was too
fast, however, she is not liable for negligence, only wanton conduct. So if her speed was from
wanton conduct, then she would be liable.
b. Trespassers (one who comes onto the land without permission or privilege)
i. Undiscovered trespasser – Landowners owe no duty to an undiscovered trespasser, nor does
he have a duty to inspect for trespassers.
ii. Discovered trespasser – If a landowner knows or has reason to know there is a trespasser, he
owes a duty to refrain from willful, wanton or reckless conduct.
1. Willful conduct – involves an intent, purpose, or design to injure
2. Wanton conduct – failure to exercise any care whatsoever toward those to whom he owes
a duty of care. Conscious indifference to the harm
3. If landowner discovers trespasser or licensee in a position of peril, he is required to
use ordinary care to avoid injury.
4. The owner has a duty to warn the trespasser if 1) the owner knows 2) of a dangerous
condition 3) that creates unreasonable risk of harm to licensee 4) that licensee is
unlikely to discover.
a. Owner does not have a duty to inspect or repair of known defects
5. You can use reasonable force to expel a trespasser (the purpose must be to expel
trespasser, not punishment)
6. Fork: some courts impose a duty of care upon landowners who have discovered the actual
presence of a trespasser, provided the land owner knows trespassers frequently use a
limited area
7. Exam tip: They can argue that D should have known, however, Gladon held that D is
only liable if they know or have reason to know.
c. Licensee – Someone who has permission to be on the land but has a limited license to be there.
i. Standard of care: same duty of care as trespasser
ii. FORK: Some states pass statutes that lower the standard of care for invitees for recreational use
(hunting, swimming, etc): duty to refrain from willful or wanton or reckless conduct. There may
be a higher standard of care if you are paying to be there
iii. Social guests are considered licensees in the traditional view and invitee in some states
d. Invitees – A person who enter premises in response to an express or implied invitation by the owner.
i. There are two types of invitees:
1. One who enters land held open for the public (ie museum, church, airport)
2. One who enters land connected with the business or interest of landowner (ie store
customers)
a. Landowner owes a duty of reasonable and ordinary care.
i. Including duty to warn and duty to inspect to discover dangerous
conditions.
ii. Do not owe a duty for obvious dangers
ii. If the invitee goes exceeds the scope of invitation, he becomes a trespasser.
e. Open and obvious danger doctrine: Owner does not owe a duty to P for open and obvious dangers.
i. Plaintiff’s conduct rather than D’s conduct to see if he exercised reasonable care to protect his own
safety
ii. Why: because it is not foreseeable that a visitor exercising reasonable care for his safety would
suffer from such blatant hazards. If the danger is obvious to a reasonable person of ordinary
perception and judgment, landowner may reasonably they have knowledge of it. Even if they warn
them. It would not reduce the likelihood of the harm.
1. O’Sullivan v Shaw - P injures himself by diving in a shallow area of D’s pool.
2. Osullivan vs Bettes – Osullivan, it was unforeseeable that a person would dive in the
shallow end. It was foreseeable that person may trip in Bettes
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iii. Snow and ice: some courts rule that owners owe no duty (even for invitee) to dangers of natural
accumulation of snow and ice. Does not relieve owner of dangers created by owner’s activities
making ice more dangerous
f. Attractive nuisance doctrine:
i. A landowner is liable for physical harm to children trespassing caused by an artificial
condition upon land if: 1) there is a dangerous condition that the owner should be aware of
2) they know or have reason to know that children are likely to trespass within that area 3) D
knows or has reason to know it will involve an unreasonable risk of death or bodily harm to
children 4) the children, because of their youth, do not realize the risk 5) the expense of
remedying the situation is slight compared to the magnitude of the risk 6) D fails to exercise
reasonable care to eliminate danger or protect children.
1. There is a dangerous condition that the owner should be aware of
2. They know or have reason to know that children are likely to trespass within that area
a. Key: not the condition that attracts children, but that it is in the area where they
are likely to trespass
3. D knows or has reason to know it will involve an unreasonable risk of death or bodily
harm to children
4. The children, because of their youth, do not realize the risk
5. The expense of remedying the situation is slight compared to the magnitude of the risk
6. D fails to exercise reasonable care to eliminate danger or protect children.
7. Note: argue the foreseeability of the harm
ii. Fork: Some states hold that “common hazards” such as fire and pools of water are not considered
attractive nuisances, because they are obvious and well known, and does not hold owner liable.
(Sometimes, owner is unable to fence pond so duty is not breached)
1. vs Stinette – breach of duty
iii. Just because something may be open and obvious (giant pillar in the aisle) does not mean no duty.
But whether the harm is still foreseeable (people may still run into it)
VI. Other modifications to duty of care:
a. Sovereign immunity – cannot sue government for some torts depending on state. (ie Federal Tort Claims
Act – sovereign immunity from combatant activity in the army or states are not liable for intentional torts
by government employees)
b. Immunity for charities – Not for profit organizations (hospitals, private schools, camps) to preserve the
charity for charitable services. If they had to pay out tort claims they would have no money for charities.
Some states abolish this (TX) or gives immunity to certain charities (ie church driving welfare recipients)
c. Spousal/family immunity – common law courts say that it is necessary for marital harmony or parent-child
harmony, and fear of fraud
d. Parent-child immunity - only applies to parent and unmarried minor child. Often limited to negligence, not
intentional tort. Majority states have abolished this. TX limits it to only parental activities in caring for the
child (not driving). Does not apply to willful malicious intention of harm
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VII. Defenses to Negligence
States will use either contributory negligence or comparative negligence doctrine.
a. Contributory negligence –
i. This is an absolute defense, even if P is 1% negligent he’s barred from all recovery – ASK: did he
behave w/reasonable care?
ii. Traditional common law rule: If P’s negligence bars his right to recover.
1. P owes himelf a duty of care and it is unfair to hold D liable for P’s fault.
iii. Types of Contributory Negligence
1. P knew the danger and unreasonably decided to encounter it anyway (this type is both
AOR and CN – say its both)
2. Remaining in danger
a. IE riding in a car with a drunk driver (but its reasonable if you are seriously
injured)
3. Children: Remember if it’s a child he can be CN but has to be reasonable for a child of
like age and intelligence
4. Negligence per se can also be a form of CN since it is a form of negligence.
a. NOTE: If D violates a statute, they cannot use CN as a defense. (IE speeding in
school zone and hits a child who did not look when crossing the street)
iv. Cases
1. Butterfield v Forrester (D put a pole across the road, P riding furiously, hits it and injures
himself. Found for D.)
a. If he had used ordinary care, he must have seen the obstruction; so that the
accident appeared to happen entirely from his own fault.
v. DEFENSES/EXCEPTIONS
1. Rescue doctrine – If P who helps a person in imminent danger caused by D’s negligence
cannot be charged with contributory negligence unless they acted recklessly.
a. Rescuer can recover from the defendant whose negligence prompts the rescue.
b. The rule includes cases in which D negligently injures or endangers himself and P
is injured in attempting the rescue.
c. Policy: Do not deter people from rescuing
2. Last clear chance doctrine –
Last clear chance doctrine holds that if D discovered or should have discovered P’s peril,
and could reasonably have avoided it, P’s earlier negligence neither bars nor reduce P’s
recovery.
a. Last clear chance doctrine only applies to contributory negligence rules
3. Discovered peril doctrine – Discovered peril holds that D actually discovers P’s peril and
could reasonably have avoided it, P’s earlier negligence neither bars nor reduces P’s
recovery.
a. Most States that have adopted comparative fault systems have barred last clear
chance doctrine and discovered peril doctrine
4. Defendant’s reckless or intentional misconduct – P charged with contributory negligence
is allowed full recovery against reckless or wanton defendant.
a. Note: Depends on the state
b. Restatement of apportionment §1 calls for application of comparative fault rules
on all claims of harm, including intentional tort but it takes no position on the
question whether P’s fault reduced recovery against an intentional tortfeasor.
c. Some states, if P is negligent, but D was reckless, D is 100% liable. Other states don’t
5. P’s illegal activity – If P participates in a criminal act and gets injured, he cannot recover
for the loss, if the criminal act is judged to be so serious an offense as to warrant denial of
recovery.
a. Illegal activity does not preclude recovery if a crime is not “serious” (riding atv on
bike trail n getting injured). However, the crime could be given “significant
weight” in fixing the percentage of comparative fault.
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b. Some states only use illegal activity as evidence for the jury to consider. Because
although D did something illegal, P is still at fault for behaving negligently
c. Barker v Kallash (P made pipe bomb from powder bought from D, and gets
injured. Found for D.)
d. This is a rule of public policy that courts should not aid one who engages in a
substantial violation of law.
b. Mitigation of damages rule –
P has a duty to make reasonable efforts to mitigate damages caused by D or P will be held
responsible for any new harms that occur.
i. Mitigation ex: if P is injured and doctor tells him to take antibiotics, he doesn’t do it and ends up
injured even worse. He will be liable for the extra harm
ii. D causes hole in roof, and P delays having it fixed, leading to extra rain damage. Under mitigation
of damages, P is responsible for rain damage
iii. Most jurisdictions have stopped mitigation of damages rule because they have shifted to
comparative fault. B/c comparative fault considers these factors
c. Comparative negligence
i. Comparative fault – each faulty party must bear his/her share of losses (not reduced with
intentional tort but with negligent and strict liability cases)
1. Pure comparative fault– If there was culpable conduct by P, then the damages will be
diminished in proportion to the culpable conduct.
2. Modified comparative – If P’s negligence was not greater than D’s negligence, then
damages shall be diminished in the proportion of the amount of negligence attributed to
that person.
a. If it is greater, P is barred from recovery
b. Some states bar recovery if P is at least as negligent as D.
ii. Apportionment among defendants – Defendants pay portion of their fault
1. Factors: (Note: These factors are irrelevant even to apportionment if there is no causal
connection between the referenced conduct and P’s injuries)
a. 3rd RT: Apportionment of Liability factors
i. The nature of the person’s risk-creating conduct, including any awareness
or indifference with respect to the risks created by the conduct and any
intent with respect to the harm created by the conduct; and
ii. The strength of the causal connection between the person’s risk-creating
conduct and the harm
b. Crownover v City of Shreveport Factors:
i. Whether the conduct resulted from inadvertence or involved an awareness
of danger
ii. How great a risk the conduct created
iii. The significance of what the actors sought by the conduct
iv. The capacities of the actors, whether superior or inferior
v. Any extenuating circumstances which might require the actors to proceed
in haste, without proper forethought
c. Jury is allowed to take account of person’s mental state
i. They can take into account how strong the causal connection is
ii. Some states look at the mental capacity of the actors (Departure from
negligence)
iii. Did P create risk of harm only to P? or to others? If to others as well, they
will be more at fault
d. Statutes ie Maine – if there is comparative negligence, the statute requires the jury
to make a reduction it considers to be equitable and just
2. Cause in fact – if there is divisible – we divide it by who caused what
a. If there is divisible injury – then we divide the harm accordingly
b. When we have the indivisible harm, we move to the comparative fault regime
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d. All-Or-Nothing Judgments After Comparative Fault
i. No plaintiff negligence – if P is not negligent, or if her negligence is not the actual or proximate
cause of the harm, then no comparative fault
ii. P negligence that is not actual cause of injury – does not reduce damages
iii. P injury that is not within the scope of risk created by P’s negligence – P’s fault can be disregarded
iv. No defendant negligence – If D is not negligent, or if D’s negligence is not the actual or proximate
cause of P’s harm, P recovers nothing
v. Sorting claims into all or nothing or comparative elements – With comparative fault, recovery can
depend on fault, actual, or proximate cause
vi. Reasonable care by D in light of P’s fault? –
vii. P’s fault as a superseding cause of the harm – P can lose recovery altogether on superseding cause
grounds
viii. Causal apportionment of separate injuries – Comparative fault reductions may also be
inappropriate when P and D caused separate injuries.
e. Allocating Full Responsibility to the D in the Interests of Public Policy or Justice
1. Mental hospital
a. There is no comparative negligence if D’s duty of care includes preventing the
self-abusive or self-destructive acts that caused the injury.
b. McNamara v Honeyman (Mental patient kills self in mental hospital. No
comparative negligence, hospital is liable.)
c. To allow the defense of comparative negligence in these circumstances would
render meaningless the duty of the hospital to act reasonably in protecting the
patient against self-harm
2. Other health care
a. Comparative fault does not apply even if P’s negligence created the need for
treatment .
i. In most jurisdictions, P’s negligence that provides only the occasion for
medical treatment may not be compared to that of a negligent patient
b. Policy: we want physician to use the utmost care in treating the plaintiff. If they
cannot be held fully liable, they might not use the utmost care
c. P’s disability or vulnerability might be important if 1) D knows of P’s disability
which prevents or inhibits P’s care for himself and 2) P’s risky conduct endangers
himself but not others
d. Policy factors in allocating risks to D:
i. P incapacity – P lacks total or partial capacity for self care
ii. Structural safety – due to systemic differentials in knowledge, experience
or control, D can be expected to take better care of P’s safety than P
herself
iii. Role definition – D’s obligation is to care for even a negligent P because
of D’s responsibilities as a professional rescuer
iv. Process values – litigating the comparative fault defense would harm
litigants, create unmanageable litigation, or produce statements of
relative fault where such statements are problematic
v. Fundamental values – a determination of comparative fault would
encroach on fundamental, sometimes constitutional values
vi. Autonomy of self risk – P’s conduct risked only harm to self and as such
3. When D has a duty to protect P from P’s own contributory negligence
a. Example: Expect manufactures to consider that their employees may be negligent
with machinery. We expect them to foresee that they may be negligent so their
duty is to take safety precautions so people wont negligently harm themselves.
Court will not take into account P’s negligence because we want to make
manufactures take appropriate precautions
b. Driving – no duty to protect other drivers, only anticipate other driver’s
negligence
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f.
c. D has duty to protect P from P’s past negligence – ie medical treatment – they will
be liable for any aggravation of injuries
d. Contributory negligence is not available to school employees who have a duty to
students to protect them from reasonably anticipated dangers.
i. Christensen v Royal School District, (P (13) has sexual relationship with
teacher and sues for sexual abuse. D raises contributory negligence.)
ii. Because of the vulnerability of children in school setting, they do not have
a duty to protect themselves from sexual abuse by their teachers. In
addition, they lack the capacity to consent to sexual abuse.
iii. If court allowed contributory negligence defense, the same situation will
arise again with sexual abuse
iv. In light of principle or policy, P’s might sometimes have no duty to act
reasonable in self protection
4. Personal Property
a. D cannot claim contributory negligence if P was making a lawful an
reasonable use of his land.
b. Property policy: Making P liable will infringe on his rights to use his property
however they want
i. Conflicts with tort concern of other’s safety
c. Leroy Fibre (P’s flax on his property (75 ft from railroad) is set fire by D’s
negligently emitted sparks and coals. D claims contributory negligence of placing
flax too close)
i. The rights of one man in the use of his property cannot be limited by the
wrongs of another. Plaintiff need only make sure that he is using his land
properly. The affirmative defense of contributory negligence is not
applicable against a party making a lawful and reasonable use of their
land.
Assumption of risk
Assumption of risk bars P from recovery if 1) P knew of the risk of damage 2) P voluntarily assumed
it 3) either express or implied.
i. Voluntary
1. Not voluntary if P had not other option other than the dangerous route
2. Not if it is a necessity or public utility (ie hospitals)
3. Fraud, force or emergency
ii. Express consent - There is an agreement that shifts the risk
1. A court may not recognize an agreement if they acted grossly negligent or committed
intentional tort. (Fraud, mistake, misrepresentation)
2. Express consent for alternative treatment - Boyle v Revici (P (doctor) received express
consent by D to treat by alternative medicine and died. Reversed for D)
a. Parties to a transaction should be able to agree which of them should bear the
risk of injury, even when injury is caused by a party’s legally culpable conduct.
Consequently, a valid contractual limitation on liability, within its terms, creates
an absolute bar to a P’s recovery from the other party to the K.
3. Pre-Injury Releases - are unenforceable if they offend public policy, or if they are unclear
or ambiguous.
a. The court must then determine whether the risk that caused the injury was within
the scope of the release.
i. Moore v Hartley Motors (P signs a waiver and gets injured during ATV
course.)
1. Compared to Tunkl, the ATV safety course was not an essential
service; therefore, D did not have a “decisive advantage for
bargaining strength.” They had the choice to sign the waiver and
take the class. Therefore the waiver was valid.
2. The scope of release did not discuss liability for general
negligence, only inherent risks and negligence arising from those
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inherent risks. Therefore, they would be held liable for negligence
outside of the inherent risks.
3. Inherent risk is a risk that you cannot eliminate through
reasonable care.
(Breach of duty – person has the duty for foreseeable risk, so
inherent risk is not included. But unreasonable risk – is
foreseeable)
b. Most courts hold that contractual assumption of risk that bars recovering for
recklessly or intentionally caused injury would offend public policy.
c. Releases in recreational activity are usually upheld as long as they are clear and
unambiguous.
iii. Cannot expressly consent for an essential service.
1. Express consent for essential service violates public policy –
a. Tunkl v Regents (P signs consent at hospital absolving D “from any and all
liability for the negligent or wrongful acts or omissions of its employees” and ends
up injured from D’s negligence)
b. In this situation, P did not really acquiesce voluntarily in the contractual shifting
of the risk nor did he receive consideration for the shift.
c. Since the service is one, which each member of the public may find essential to
him, he faces the prospect of a compulsory assumption of the risk of another’s
negligence.
d. Policy: Courts cannot lightly accept immunity from careless failure to provide the
hospital service upon which many must depend
iv. Implied consent –
1. Traditional implied assumption (Boyle) –
Under traditional implied assumption of risk, if P knew the risk, appreciated its
danger, and voluntarily confronted it, then P could take nothing.
a. It was once a complete defense to negligent liability. Considered an all-or-nothing
rule.
2. The contemporary view – Betts case (housekeeper n stairs) – (Used by most courts)
If P is reasonable in facing a risk, she is not negligent, but if she unreasonably
confronts a known risk, her negligence in doing so reduces her recovery of damages.
a. Just b/c they assume a risk does not always mean that she is partially negligent. (If
a reasonably prudent person would have done the same thing, then they are not
negligent.
b. Breach of duty element – D may have a duty, and reasonably avoided the risk, but
P assumes the risk. (D offers P a harness to fix the roof, but P says he doesn’t need
it)
3. 3RT Assumed risk is treated as comparative fault – If P is reasonable in facing a known
risk, she is not negligent, however, when she reasonably confronts a known risk, her
negligence in doing so reduces her recovery of damages.
a. 2 Explanations:
b. If D reasonably believes that P has accepted the risk, D may not be negligent at
all in relying on P to achieve safety.
c. As in Boyle, Restatement recognizes a separate and compete defense based on
contractual (or express) assumption of the risk. Defense à Contractual assumption
d. There is no distinction between contributory negligence and assumption of risk
when raised as a defense to an established breach of duty.
4. Primary implied
Primary assumption of risk arises when, as a matter of law and policy, a defendant owes
no duty to protect a plaintiff from particular harms. But there is duty not to act recklessly.
a. Assumption of inherent risk – owe a duty to non-inherent risk but no duty to
inherent risk. Usually there is a duty to decrease a foreseeable risk, but with
inherent risk, there is no duty to decrease it and duty not to increase it.
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b. Sports - Primary assumption of risk in sports precludes liability for injuries arising
from those risks deemed inherent in a sport; as a matter of law, others have no
legal duty to eliminate those risks or otherwise protect a sports participant from
them.
i. If a participant (in a professional sport) makes an informed estimate of the risks
involved in the activity and willingly undertakes them, then there can be no
liability if he is injured as a result of the risk. P’s consent is not constructive
consent but is actual consent implied form the act of electing to participate in the
activity. The participant understands the usual incidents of competition. However
if it is an act that is not a normal method of playing a game and done without any
competitive purpose, D can be held liable.
5. Secondary implied – usually absorbed by comparative neg.
a. Secondary assumption of risk arises when D still owes a duty of care, but P
knowingly encounters the risks attendant on the defendant’s breach of that duty
g. Other Defenses
i. Statute of Limitations
1. Shearin - Rule: The statute of limitations start as soon the injury or malpractice occurs
(even if they do not find out till later)
a. D’s failure to detect or discover his own negligence did not affect the basis of his
liability.
b. Most states adopt a different rule from Shearin
2. “Discovery Rule” – delays the accrual of the claim until 1) All the elements of the tort
are present, and 2) P discovers, or a reasonable person should discover, both the
injury and D’s role in causing it
3. Equitable estoppel applies if D misleads P of his injury.
4. When did P discover the injury?
a. SOL starts when P has flashbacks of abuse 35 years ago (McCollum v D’arcy)
b. Repressed memories
i. Doe v Maskell (they ruled that mental process of repression of memories
of past sexual abuse does not activate discovery rule)
ii. States hold different views of whether discovery rule applies to repressed
memories of sexual abuse.
iii. Some states say SoL does not apply for the child victim until they become an
adult.
5. Multiple Acts: If D committed multiple negligent acts over time, SoL begins with the first
act.
a. If P can show their condition worsens after each subsequent act, SoL may extend.
6. Statute of Repose – limits the time in which an action may be commenced after the
negligent act occurs. Differs from SoL, b/c it will limit the time after the negligent act. (ie.
If a building wall collapses, there is 15 years after that a person can claim negligence)
ii. Compliance with Statute
Compliance with a regulation can be used as competent evidence of due care but not as
conclusive evidence of due care.
1. Although noncompliance with a regulation is negligence per se, compliance with a
regulation does not constitute due care per se.
2. Statute or regulation merely sets the floor for due care. Circumstances may require
greater care if D knew or should have known other risks not contemplated by the
regulation.
3. Statutory requirements reflect a minimum standard of care. Similar to compliance with a
custom, it is some evidence of reasonable care, even though it is not conclusive.
iii. Avoidable consequences/seat belt defense/mitigation of damages
1. Avoidable consequences rules reduce damages for discreet identifiable items of loss
caused by P’s fault.
2. Ie if P did not do X then P would not lose foot, so P cannot recover for lost foot, but can
recover for other damages
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a. Comparative negligence rules are fault apportionment rules, while avoidable
consequences rules are “casual” apportionment rules
b. ACR does not operate as a defense like CNR. Comparative fault can bar P from
recovery, but ACR does not. CNR comes into play before injury, ACR comes into
play after injury.
h. Multiple Parties
i. Vicarious liability
ii. Indemnity
iii. Imputed contrib. negligence/comparative negligence – “both ways” test
iv. Joint and several liability - Plaintiff can enforce her tort claim against either tortfeasor or against
both, but cannot collect more than her full damages. Take 100% from one defendant, defendant
then collect the percentage from the other defendant
1. Contribution - Under joint and several liability system. If an entire judgment is obtained
against one party, that party can obtain contribution to the other party at fault and make its
payment proportional to its fault
v. Several liability (or proportionate share liability, or comparative fault liability system) – no
tortfeasor is liable for more than his proportionate share. P collect the percentage from each
defendant.
vi. Difference between J&S liability and Several liability is what happens when one is insolvent.
In a joint and several liability system, if 2 parties are at fault, and one cannot pay (no assets
or immunity), the other party has to pay the whole amount
vii. Group liability (Mkt Share theory)
VIII. Vicarious Liability aka Respondeat Superior
a. Employers are vicariously liable for any tortious act committed by an employee if it is within the
scope of employment
i. It is within the scope if the act was done while the servant was doing his master’s work.
ii. General rule: Employer’s vicarious liability extends to the negligent, willful, malicious, or even
criminal acts of its employees when such acts are committed within the scope of the employment
iii. Intentional tort: Employer is not liable for employee’s intentional tort unless it arises naturally
out of the work of the business.
1. Ie: Nurse aid slapped a patient, Bouncer hurting someone, removing customers from
premises
iv. Places with power: Employers are usually not liable for sexual misconduct unless it is foreseeable
that there would be an abuse of power.
1. Officer-prison guard, church, group home. EXCEPTION: Hospital does not count
v. Employer Negligence: Employer can be held negligent for failing to exercise due care in hiring a
competent employee or contractor. (This is not vicarious liability)
b. Contractors:
Employers are not vicariously liable for negligent conduct of independent contractor.
i. Policy: Employers have no right to control independent contractor.
ii. Test for status as contractor: if the employer can only determine what is acceptable as the end
result, if employee runs his own business and works for others as well, if he provides his own tools
or uses special skills
iii. Exceptions:
1. If employer retains sufficient control, then there can be a master-servant relationship and
vicarious liability.
a. Factors to determine whether a master-servant (or principle-agent) relationship
exists:
i. Selection and engagement of the servant
ii. Payment of wages
iii. Power to discharge
iv. Power to control servant’s conduct
v. Whether the work is part of the regular business of the employer
2. Non-delegable duty – A duty is non-delegable if it is a duty as a matter of law.
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a. Nondelegable duty if (1) inherently dangerous work creating peculiar harm
(Pusey), (2) duty imposed by statute, (3) landowners/place of
business/supplier of chattel, or (4) policy reasons
b. Inherently dangerous work – when the work creates a peculiar risk of harms
unless special precautions are taken
c. When special risks are associated with the work that a reasonable person would
recognize the necessity of special precautions.
i. Pusey (security guard negligently harms someone)
ii. Note: a general anticipation does not count
d. If they are required by statute to provide safety precautions
e. Landowner owes duty to maintain land properly for construction people
f. Hospitals:
i. Hospitals are not vicariously liable for allowing outside physicians to use
operating room and other resources.
ii. BUT they will be liable if they let incompetent dangerous physicians use
their facilities.
iv. Other forms of vicarious liability
1. Acts of his business partner
2. Acts of a person engaged in a joint enterprise with the defendant, a kind of temporary
partnership in which each has equal right of control
3. Acts of one with whom the defendant acts in concert or to whose acts the defendant aids or
abets
4. Statutes may impose liability upon car owners when they lend it to another person who
drives it negligently
c. Policy
i. Goals of VL 1) prevention of future injuries 2) assurance of compensation to victims 3) equitable
spreading of losses caused by an enterprise
ii. Employees tend to have no money for a plaintiff to recover. Employer on the other hand, has more
resources such as insurance, so they can spread the impact of the cost
iii. Enterprise Liability Theory
1. The idea that price of goods and activities should accurately reflect the accident costs they
cause. Hold the enterprises strictly liable for the accidents they cause.
2. The market will then tend to factor the cheaper (safer) product or service and companies
will have an incentive to make their product safer
IX. Strict Liability
D is strictly liable if D engages in 1) an abnormally dangerous activity 2) that is not common usage 3) and is
the actual and proximate cause 4) to P’s actual harm.
a. An activity is abnormally dangerous if it involves significant risk of physical harm even if everyone
exercises reasonable care.
b. 3R: Strict liability if:
i. D’s activity creates a reasonably foreseeable and highly significant risk of physical harm even
where reasonable care is exercised by all actors; and
ii. The activity is not one of common usage
1. Only applies when there is no meaningful contribution from the conduct of the victim or
any other actors
c. NOTE:
i. 3R: No contributory negligence/assumption of risk allowed
ii. 2R: Contributory negligence/assumption of risk allowed. allowed
d. Big issue is what is abnormally dangerous?
i. Activity is not one of common usage.
1. If it is normal in the community then there is no strict liability.
ii. Does it involve a high degree of risk?
iii. Is it conducted at an appropriate place?
iv. The value of the activity to the community.
e. Scope of risk Limitations:
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i. D is not liable for all harms caused by his abnormally dangerous activity but only to those
possibility of which makes the activity abnormally dangerous OR limited to those harms that result
from the risks justifying strict liability
ii. Foreseeability – SL is strengthened when D has actual knowledge of the risky quality of the
activity
iii. Courts are split of imposing strict liability with intervening criminal acts
f. Defenses:
i. P or others contribute to activity causing harm
ii. Harm avoidable if D or P used reasonable care
iii. P’s contributory negligence/assumption of risk
X. Products Liability (Strict liability)
A manufacturer is liable for product liability if their 1) defective product, 2) causes (actual and proximate)
3) actual harm (requires physical harm)
Note: Common law adds another element: P is member of class of individuals who would be foreseeably
injured by defective product
a. Consumer expectation test – The product did not perform as safely as an ordinary consumer would have
expected
i. NOTE: What an ordinary consumer expect, not what a reasonable consumer would expect
ii. Issue: if ordinary consumer expectation is too high, seller will have to over invest in safety and it
will affect costs
b. Unreasonable danger – whether the product was dangerous beyond the contemplation of the consumer
c. Types:
i. Manufacturing defect
ii. Design defect
iii. Inadequate warnings
d. Manufacturing Defect –
i. Restatement: A product has a manufacturing defect if it is not in the condition the manufacturer
intended at the time it left his control.
ii. Lee: A product has a manufacturing defect if the departure form its intended design was
unreasonably dangerous.
iii. They are still held liable even if they exercised all possible care.
iv. FOOD: Use consumer expectation test.
v. What P must prove:
1. P does not have to prove what aspect of the product is defective
2. Must provide more than evidence of injury
3. Must show that there was no improper handling
e. Design Defect (Must show a reasonable alternative design)
A product has a design defect if it was in the condition intended by the manufacturer but was designed in a
way that created undue risk of harm.
i. 2 methods:
1. Consumer expectation test (Leichtamer)
a. A product may be found defective in design if P demonstrates that the product
failed to perform as an ordinary consumer would expect when used as intended or
reasonably foreseeable manner.
b. P does not need to be the owner or primary user, as long as they are the class of
people who can be foreseeably injured
2. Reasonable alternative design (Honda or revised version) – USED BY RESTATEMENT
Honda
a. There was a safer alternative design;
b. Safer alternative design:
i. Would have prevented or significantly reduced the risk of injury
ii. Would not have substantially impaired the product’s utility
c. The safer alternative was at time of manufacture both:
i. Technologically feasible
ii. Economically feasible
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d. Safety benefits of alternative design greater than costs
Revised
a. There exists an alternative design that would prevent or reduce risk of injury P
incurred
b. Safer alternative was at time of manufacture both:
i. Technologically feasible
ii. Economically feasible
c. Safety benefits of the alternative design > costs
iii. Safety benefits = reduction in risk of injury
iv. Costs include direct costs, decreased utility of product, and increase in
other safety risks
d. Harm to P foreseeable
3. Occasions when you don’t have to go thru the RAD test:
a. RIL applies to design defect – do not need to show the specific way D was
negligent when the accident speaks for itself
f. Manifestly unreasonable design
i. The utility is really low but the risk is really high. That the product should not be on the market at
all. There is no alternative to make the product safer.
g. Products dangerous by nature or design
i. No design defect if product dangerous by nature
ii. Ie: Guns, knives, tobacco
1. No legal claims for guns unless manufacturer knowingly violated the statute to the
sale/marketing of the product
iii. Dangerous medicinal drugs: Immunity in cases where a reasonable health care provider who
knows the benefits and risks prescribes a drug.
1. Manufacturer is not liable since the doctor makes the decision.
2. However, if doctors don’t prescribe it and they market the drug, they may be held liable.
(RAD and manufacturing flaw still applies)
h. Warning/Information Defect
i. D has a duty to warn if 1) the products risk of harm is foreseeable and 2) it could be reduced
or avoided by a warning.
1. Omission of the warning renders the product unreasonably safe.
2. Liable for no warning or inadequate warning
3. Warning must be reasonable
a. Too many warnings lower aesthetic value or reduces the effectiveness of the
warning.
ii. Obvious danger: There is no duty to warn of dangers that are or should be obvious.
1. Exception:
a. If manufacturer could foresee possible harm in spite of obvious danger, then they
may be liable for not warning.
b. If a slight change in design could have made it safer, designer cannot avoid
liability by warning.
2. Note: cannot argue consumer expectation test.
i. Defenses
i. Assumption of risk – Depending on JX, they will use comparative negligence or completely bar
recovery
1. If P was aware of the risk and negligently assumes the risk.
2. Implied: P knew the risk and used it anyway even though a reasonable person would not.
3. Express: completely bars P’s claim.
ii. Contributory negligence
1. CANNOT USE IF: P’s negligence was part of the causal chain and their negligence was
foreseeable.
a. Manufacturers would not be as careful if they are not held liable.
2. If P’s negligence was part of the causal chain but not foreseeable, then no defective
product.
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3. If the act was not party of the causal chain.
a. IE: Lung cancer due to either asbestos or smoking
iii. Comparative negligence
XI. Damages
a. Property torts
i. Dispossession of personalty – conversion action, where damages are measured by full market
value of the thing converted (ie value of the car at the time of damage)
ii. Dispossession of real property – P recovers rental value of the property during time of
dispossession
iii. Tangible property – where physical harm is done to property, measure of damages is often the
diminished value of the property
iv. Diminished value rule – based on the market value, applies in cases of damage to chattel. Cost of
repair may be used.
v. Injunctive remedy – for trespass, intangible property such as trademark
b. Personal injury torts – damages are the same whether tort is thru intent, negligence or strict liability
i. Main elements of damage:
1. Reasonably incurred medical expenses resulting from the tort
ii. Lost earning capacity or wage loss
iii. Pain and suffering resulting from the tort including mental pain and suffering
iv. In a limited number of cases, award to pay for cost of medical monitoring of P’s condition to
intercept a prospective disease that may develop in the future
v. Any other specifically identifiable harm that resulted form the tort and necessary expenses (ie
medical travel)
c. Types of Damages:
i. Nominal - $1
ii. Compensatory
1. Compensate for damages to their property or body, emotional harm, economic loss
2. Must be proven, prove the harm, and the dollar amount. Past expenses/losses is
recoverable, court will award interest
3. Lost wages – if they have a well-established career, it is not difficult to predict. However,
future salary is speculative
a. In calculating loss wages, court considers investment returns and inflation for
lump sum rewards. Periodic payments would vary accordingly
b. If P will be able to work but cannot pursue true career, court calculates the
difference
4. Pain and suffering - what the fact finder determines is fair, they encourage measuring on a
daily basis (how much they suffer in one day and multiply by how many days they will
suffer)
a. Criticism – jury is out of control and giving too much money for pain and
suffering and punitive awards
iii. Punitive/Exemplary damages
1. Varies by state, but generally awarded if D acted with malice or recklessness. (2 cases: tort
for profit and tort for pleasure)
2. Functions:
a. Deterrence function.
b. Expressive function (moral disapproval).
c. Help finance for litigation costs since most attorneys are paid on a contingency
bases
3. Factors they take into account:
a. Tort for profit – (Owens fiberglass case) such as a manufacturer creating harm
for profit. Punitive damage can deter them b/c they will not profit if they have to
pay out.
i. Courts tend not to emphasize D’s profit, instead, courts have tend to
emphasize ratios. The disparity between the harm suffered (compensatory
damages) and punitive damages. Punitive damages should have a ratio
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with compensatory (ie no more than 8x compensatory). No set rule.
Criticism: if compensatory is small, punitive is small so it loses its
deterrent effect
b. Tort for pleasure – (rage, bully) the more outrageous, the more punitive damages
c. Defendants wealth can be taken into account, because the purpose of punitive
damage is for punishment so it must be a certain ratio to their earnings to create a
deterrent effect
d. Lost Earnings
e. Collateral Source Rule
i. Collateral source rule – if P is hospitalized, even if he receives collateral benefits (work earnings
or other donations), he can still recover from D, full medical expenses, lost earnings, etc. Full pay
from employer is considered gift or job benefit.
1. Some states bar collateral source rule, which has the effect of reducing the damages
2. Subrogation – if P collects from D, P is required to turn over expenses to compensate for
what the insurance paid out
3. Windfall effect – b/c of collateral source rule, P can recover double amount
f. Duty to Mitigate Damages
i. Mitigation rule/avoidable consequence rule – avoidable consequences require the plaintiff to
exercise reasonable care to minimize damages and denies a recovery to the extent that damages
should have been but were not reasonably minimized or avoided
g. Loss of Consortium
h. Loss of Enjoyment of Life
i. Capping Damages
i. Movement toward lowering recovery damages - malpractice insurance is too expensive, business
liability insurance. If you lower recovery amount, products and services will profit more and will
continue businesses and may lower prices, which is beneficial to consumers. They are also trying
to deter frivolous lawsuits.
ii. Cap can be limited to type of tort, or applies to tort, can cap for each defendant, cap for any single
event (if there is more than one P, they will cap the recovery for all P’s in total), Court may take a
portion of punitive damages and give it to state
iii. Limit Noneconomic damages – P can recover for pain, suffering, inconvenience, physical
impairment, disfigurement, disfigurement, loss of consortium, etc, punitive damages not included
iv. CA cap – 250k for medical malpractice, Maryland cap – 350k for any tort
v. If jury award exceeds the cap amount, court will reduce to conform to the limitation
vi. TX: Malpractice: 250k noneconomic, per event. When P is suing health care institution, if 1, then
250k, if multiple is 500k. Death: total 500k, increased by annual inflation. All cases (except one
with crime), punitive damages. Cap on liability for recreational places (paintball, hunting
grounds).
1. Some states (TX) allow periodic payments for damages. It will make it more difficult for
attorney to recover costs for litigation, and D may go bankrupt.
2. TX – D must have requisite state of mind to permit punitive damages. They also require a
unanimous jury vote to P entitled to punitive damages and the amount for punitive
damages
3. Evidence for pain and suffering: common sense, P testifies pain and suffering. Some states
require some evidence that establish pain and D’s negligence caused it. Prevents fraud but
makes lawsuit less attractive for attorneys
XII. Wrongful Death/Survival statute
a. Loss of Consortium
i. The claim derives from physically injured person
ii. Includes loss of support or services, love, sex, etc (wife-husband, master-apprentice)
b. Wrongful death
A surviving relative or spouse can bring a wrongful death action.
i. Wrongful death – a matter of statute – if they die, just say a wrongful death predicated by battery
etc…
ii. They can recover for:
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1. Funeral
2. Economic loss
a. Loss of support (food, clothing, housing)
b. Loss of earning power (Projected earnings – expenses)
3. Cannot recover for decedent’s pain and suffering
4. Non-pecuniary claims
a. Punitive damages,
b. Anger and grief (limited to some JX)
c. Loss of consortium (companionship, services, guidance and care)
c. WD statutes– come in 2 flavors
i. Lord Campbell – designed to compensate others for your injuries – designed to benefit set
categories of beneficiaries (Parents, children spouses)
ii. Estate statutes – give the estate what it would have gotten if the person were not killed – (Money
given to the entire state)
1. Too bad if there is no named beneficiaries (even though there grandparents or
niece/nephews)
d. Survival statute – P is decedent’s estate
A survival statute allows a victim’s cause of action to survive his death and allows recovery from the
time of injury till the time of death.
i. Damages
1. Damages accruing up until their death
2. Medical expenses, wages, pain and suffering, some allow funeral expenses
ii. Even if someone breaks your leg and a year later you can sue that person if you die some
completely other way
iii. Comparative negligence and contributory negligence applies
1. If survivor/heir was also negligent, they can divide damages
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XIII.
MEDICAL MALPRACTICE
c. Battery: A doctor commits battery if the doctor 1) treats patient without consent or 2) in excess of
patient’s consent.
1. Emergencies – A doctor, however, may act in an emergency without patient’s consent if obtaining
consent is not possible.
2. Exceeding Consent: If he has already cut him open, he can extend original operation if he
determines so in his professional capacity. (Kennedy v Parrot)
Efficiency, already on the table, trust physician.
3. Must have informed consent
a. Negligence:
i. Medical Professional is required to possess and exercise the knowledge and skill of a member
of that profession.
1. Duty to disclose – Doctor has a duty to disclose all risks so patient can make an informed
consent. Not doing so is a breach of duty
ii. Those who have superior judgment, skill, and knowledge are required to use it.
1. It is right to tell the jury that a reasonable person will use the relevant special knowledge
he has, but not right to tell the jury that he is held to a higher standard of care.
2. Policy issue: Encourage caretakers to be extra careful.
b.
CAUSE IN FACT: Loss of Opportunity Doctrine (Backwards looking)
i. 1) P’s preexisting injury 2) was aggravated by the healthcare worker’s negligence and 3) P
lost opportunity for a better a degree of recovery.
ii. Traditional approach (all or nothing) –
Under the all or nothing approach, P can recover if D’s negligence deprived P of at least a
51% chance of a more favorable outcome than she actually received.
1. Below 51% then no recovery, above 51% then awarded damages for entire injury.
2. All or nothing test is most similar to but-for test (“more likely than not” test)
3. Policy issues with traditional approach – deterrence for negligent doctors, 30% may still
be meaningful. Can create over-deterrence.
iii. 2nd Approach (Relaxed causation) –
Under Relaxed Causation, as long as P can prove that D’s negligence increased her harm to
some degree, she can recover.
1. Depending on JX, she can either recover by any degree of increase or it must be a
substantial increase. The damage can be up to the entire amount.
2. The Relaxed Causation approach relaxes standard of proof of causation. The degree varies
by jurisdiction.
3. Policy issues with 2nd approach – obtaining full damages for a small percentage of
recovery is unfair. It may also promote people to sue when there is not really an issue
iv. 3rd Approach (Lost chance) – Under Lost Chance P can recover using the relaxed causation
standard of proof but P can only recover damages for lost opportunity
1. Preponderance test – probability is greater than 50%
v. FORK (Forward looking rules) – There must be present injury, not future injury
1. Delay in Diagnosis
P cannot recover if D’s negligence resulted in a delay in diagnosis because we cannot
determine what the harm will be, she may recover.
a. Alexander v Sheid (D did not follow up on Xray and months later P discovers
tumor.) Loss of chance does not apply because there is not an issue whether P
incurred some physical injury as a result of D’s negligence in order to recover for
an increased risk of harm.
b. Forward looking - We know that she has a reduced chance of recovery. We don’t
know what the outcome will be, she may recover
2. Increased risk of future injury damages
If P proves that D’s negligence created a risk of future harm, she can recover for
damages proportioned to the probability of the future harm materializing.
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a. Dillon v Evanson Hospital (D left catheter in patient, which lead to heart
complications.) Awarded damages because there was an increased risk.
b. NOTE: Not all jurisdictions follow these cases. A lot of jurisdictions require
present injury, not future injury.
3. NO PROOF REQURIED:
Defendant can be liable without proof that his conduct caused legal harm if, but only
if: 1) D acted negligently and 2) negligence created an identifiable risk and 3) P was
subjected to the risk and 4) P actually suffered the kind of harm risked by D.
a. D acted negligently, and
b. Negligence created an identifiable risk, and
c. P was one of the person subject to that risk, and
d. P actually suffered harm of the kind risked by D
vi. They all depend on JX!!!!
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