Torts
Law simply assumes a duty of ordinary care.
Basic Issues
(1)
(2)
(3)
(4)
 OC
 OC
 OC caused ’s harm
damages
Other Issues
(1)
(2)
(3)
(4)
proximate cause – weird events (PC)
duty to rescue (DTR)
negligent infliction of emotional distress (NIED)
pure economic loss (PEL)
General Expansion of Liability: Where to draw the line?
PRO: When innocent  is injured, no expansion leads to  bearing the full cost of the harm inflicted
(1) increases safety, promotes prevention
(2) insurance companies will have the incentive to identify potential injurers w/ low probability of
mishaps and will expend the resources to obtain the necessary information to make differentiation
CON: Courts generally are concerned with open-ended liability [slippery slope] as well as unclear and
vague rules because they can lead to a flood of merit less claims, fraudulent claims.
(1) increase in # of cases litigated  potential increase in false claims
(2) increase in complexity of cases makes mistakes by juries more likely
INTENTIONAL TORTS
I. BATTERY: intentional, unprivileged, and either harmful or offensive contact w/ person of another
A. RSMT §13 / §18: Harmful Contact / Offensive Contact
1. Actor acts intending to cause harmful or offensive contact w/ the person of the other or a
third person, or an imminent apprehension of such contact, AND
2. an offensive contact with the person of the other directly or indirectly results
B. Prima Facie Case
1. Intent: a DESIRE to cause a harmful of offensive contact or to cause an apprehension that
such a contact is imminent, or BELIEF that such a contact or apprehension is substantially
certain to result.
a. less malicious states of mind than intent may support liability for harm
b. objective facts may be introduced to prove one’s subjective mental state
case on point: Garratt v. Dailey p. 19
Court remanded case to find out whether Dailey, a child of 6, knew with substantial certainty that the  would sit
down where the chair which he moved had been. The mere absence of any intent to injure  or the play of prank on
her would not absolve  from liability if he knew she would sit where the chair used to be. When a reasonable
person would believe that harm would result from acts, that person would be found liable.
1
2. Contact: a harmful or offensive contact w/ ’s person
a. As in Garratt, indirect contact also suffices
C. Unlawful Act
case on point: Vosburg v. Putney p. 14
Court held that Putney did not have to prove Vosburg intended the harm that resulted. Putney can show that Vosburg
committed an unlawful act or had an unlawful intention to commit harm: since the boys were not playing at recess,
there was no implied license (permission) of the playgrounds. Since incident occurred during school hours, school
laws applied. Kick was against school rules, so Vosburg is liable for battery that resulted from unlawful conduct. The
fact that Putney’s knee was in a diseased condition and more susceptible to injury did not mitigate liability.
II. Privileges: defenses–means of escaping liability by proving existence of a privilege to inflict contact
A. Consent: willingness for conduct to occur; can be expressed (as in words) or implied (as in
acts reasonably understood to mean consent) or implied-in-law or custom
1. Objective consent: when  acts in such a way to give appearance as would be understood
by a reasonable person to be consent (e.g., silence or failure to raise an objection)
case on point: O’Brien v. Cunard Steamship Co. p. 36
Doctor believed  consented to smallpox vaccination when she lifted arm and did not object any further. Court held
that under the circumstances, it was reasonable to believe  consented by her non-objection and silence. Court
guided by objective perception of acts and not the subjective state of mind of  as to whether consent was given.
2. Subjective consent:  actually consents or had full understanding of the quality or nature of
her act irregardless of what  knows,  is barred from recovery.
case on point: Barton v. Bee Line p. 41
Despite consent by , criminal statute makes  liable for statutory rape. Court decided policy behind statute was to
protect innocent females and  not considered innocent b/c she consented. Court believed policy would be
frustrated by encouraging females to become seducers in order to collect damages in civil actions.
3. Implied-in-law or CUSTOM
a. Medical profession: Doctors are generally subject to same rules as others regarding
invasion of rights, but certain exceptions have developed.
i. If doctor discovers a condition that requires immediate attention OR
ii. Requires an additional surgical procedure, consent is considered implied-in-law
b/c patient is assumed to have consented based on what a reasonable person
would want under similar circumstances
case on point: Bang v. Charles T. Miller Hospital p. 47
Unauthorized surgery: ’s spermatic chords where severed during surgery.  consented to surgery, but did not fully
understand what would be involved in the surgery when doctor asked for consent. Court held that when a doctor
knows of alternatives to a surgical procedure and no emergency situation exists, a patient should be informed of
alternatives and given opportunity to decide which alternative to go with.
case on point: Kennedy v. Parrott p. 50
Patient underwent surgery for appendicitis, but during surgery doctor discovered cysts on her ovaries, which he
proceeded to remove. Patient developed complications to surgery, but court found that doctor exercised due care in
the procedure based on custom. Court held that doctor had a duty to extend surgery to remedy a newly discovered
2
condition b/c (1) patient is incapable of consenting at the time, (2) an immediate decision in necessary, (3) no reason
to believe patient wouldn’t consent, (4) a reasonable person would consent under similar situation.
B. Self-Defense: §63 (p. 59)– one is entitled to use reasonable force when there’s a reasonable
belief of the need to protect oneself against unprivileged harmful or offensive contact which one
reasonably believes another is about to intentionally inflict. May have a duty to retreat if one
can avoid the necessity of defending oneself unless one is in own home.
1. §70 – Permissible Force: one cannot use force in excess of that which once believes
necessary for protection.
case on point: Courvoisier v. Raymond p. 65
 slept over a jewelry store that was being robbed.  fired shots to scare rioters away. Shots caused , a policeman,
to approach.  believed officer was a rioter b/c he did not have his glasses on nor did he hear officer identify himself,
so he shot officer claiming self-defense. Court held that when it is reasonable to believe one’s life is in danger, the
one is justified in using force against another who he mistakenly believes is part of the danger.
2. Defense of Property: §77 / §79 (p. 78) – allowed if force used is reasonable; one believed
intrusion can only be prevented by force; one has requested others to desist or believes request
to be useless or that substantial harm would result before request can be made. Using deadly
force is permitted ONLY when one believes intruder is likely to case death to himself or one who
he is privileged to protect.
a. Necessity – to enter upon another’s land to avoid public disaster requires:
i. an immediate or imperative necessity, but not for expediency or utilitarian motives
ii. act is in good faith or a public good
case on point: Ploof v. Putnam p. 88
 tied boat to ’s dock when violent storm arose.  untied boat and pushed boat back into waters where
damages and injuries occurred. Court ruled that doctrine of necessity applies w/ special force to
preservation of human life. Threatened loss of life or property justifies entry onto another’s land. Komesar
suggests even if necessity wasn’t a defense, could argue  used excessive force in defense of property.
case on point: Vincent v. Lake Erie Transportation Co. p. 90
Severity of storm prevented  from removing vessel from dock, which caused damage to dock. Court ruled
it wasn’t an act of God that caused damage to wharf, b/c circumstances were w/in ’s control, since  took
deliberate action to protect ship at expense of wharf. Necessity not an escape from liability unless damage
was caused by (1) an act of God beyond ’s control OR (2) ’s property was menaced by ’s object/thing.
ACTUAL CAUSATION
I. Definition: But for ’s lack of OC and ’s use of OC, injury to  would not have occurred.
A. Specific Causation: Did the  do it?
case in point: Hoyt v. Jeffers p. 102
[circumstantial evidence]
’s hotel damaged by alleged sparks from  chimney.  did not use spark-catcher or butterfly
valve.  had no direct evidence of sparks falling or that fire started from spark except large
amount of testimony of fires starting from sparks at distances longer than ’s building.
3
case on point: Smith v. Rapid Transit Inc. p. 105
[mathematical probability]
 injured by a bus coming toward her, forcing her to collide w/ another car. Court held that while  had sole
franchise for operating a bus line on Main street it did not preclude private or chartered buses from using this street
even though there was a high correlation that it was ’s bus. Court was strict about finding causation.
B. General Causation: Does ’s activity cause this sort of injury as a general matter?
1. General causation analysis: Benedectin, widely used prescription drug
a. Drug Co. pulled drug b/c of scientific studies alleging it caused severe birth defects
b. Benedectin litigation appeared to be a growing area for ’s lawyers
c. However, further studies could not est. an adequate level of statistical significance of
causation
d. Courts began issuing summary judgments on behalf of  b/c of the great weight of
contrary scientific opinion
2. increasing prevalence of expert evidence cautions against the admission of scientific
evidence which is still the subject of dispute and controversy in the relevant scientific
communities
C. Alternative Liability: When at least one of several s did it, but can’t tell which one.
1. Joint and Several Liability: s who are jointly liable can be joined in a single suit, although
need not be. s who are severally liable are each liable in full for ’s damages, although  is
entitled to only one total recovery. Common situations:
a. where s acted in concert to cause the harm
b. where s acted independently but caused indivisible harm
case on point: Summers v. Tice p. 119
[indivisible cause of harm]
 went shooting w/ 2 s and in the course of hunting, one of s accidentally shot  in attempt to shoot quail. Court
found s jointly liable b/c unable to ascertain who actually shot . Each  has burden of proving the other  was
sole cause of harm b/c it would be unfair to deny  redress simply b/c he cannot prove how much damage each did,
when it was certain between them they did it all.
case on point: Ybarra v. Spangard p. 121
[burden shifts to  to show OC]
 underwent surgery for appendicitis, but came out w/ pain in right arm and shoulder.  was rendered unconscious,
so it was manifestly unreasonable for  to insist that  identify any one of the s as the person who did the negligent
act (res ipsa loquitur case). Every  whose custody  was placed for any period was bound to exercise OC to see
that no unnecessary harm came to him and would be liable for failure in this regard.
2. Enterprise Liability [industry-wide liability]: several s acting independently adhere to an
industry-wide standard w/ regard to the safety features of a product. They had delegated some
functions of safety investigation and design, such as labeling to a trade association or risk
management association. There was industry-wide cooperation and collaboration in the
manufacture and design of the product. Under these circumstances the s all jointly controlled
the risk and thus, could be liable for all injuries caused by the product by virtue of adherence to
an industry wide standard. This theory applies to industries composed of a small number of
units. If s can establish by a preponderance of the evidence that product was manufactured by
one of s then burden of proof as to causation shifts to all the s.
4
case on point: Hall v. E. I. Du Pont de Nemours & Co. p. 160 in Sindell handout
s were injured by the explosion of blasting caps in 12 separate incidents occurring in 10 different states. s were 6
manufacturers, comprising nearly the entire industry. s argued that the practice of the industry to omit a warning on
individual blasting caps and of failing to take other safety measures created an unreasonable risk of harm.
D. Market Share Liability: When 3 or more parties can’t prove which caused actual harm, but can
show that all were negligent, burden shifts to s to probe they’re not at fault. If s cannot prove they
didn’t cause the injury, court can require them to pay by the % of their market sales.
case on point: Sindell v. Abbott Laboratories handout supplement
There were 200 manufacturers of DES and  sued 5 of them, who comprised 90% share of market. Each  can
show that they did not manufacture ’s particular DES, but if they cannot, they will be responsible for their share of
the market. DES is interchangeable product produced w/ an identical formula, so it can’t be traced back to a specific
manufacturer. As in Summers, between an innocent  and negligent , the latter should bear the cost of injury.
case on point: Doe v. Cutter Biological p. 134
 is a hemophiliac and received a clotting agent know as Factor VIII, which caused him to contract HIV. Unlike DES
in Sindell, Factor VIII was not interchangeable or manufactured w/ identical formulas.  required to specifically
identify at least one  who was negligent and cause the harm or else  is barred from recovery b/c (1) product not
generic, (2)  can get access to records identifying or tracing specific producer who manufactured product, (3) Idaho
statute bars JSL.
1. Arguments against Market Share Liability
a. ’s are no more capable of disproving causation than  is at proving causation
b. “substantial” mkt share too vague, complex, and speculative
c. s that are brought in may only represent a comparatively small mkt share and many
may not have played a role and are innocent of ’s harm
d. too arbitrary: gives s the freedom to pick and choose s
e. s who can’t show cause are treated more favorably than those who can and are
rewarded by being offered a wider selection of potential s to gain recovery
f. guilty s may have to pay more than their market share
g. juries may be going for “deep pockets” which is an unreliable indicator of guilt
h. s will have to absorb the cost of the missing market share
i. if “substantial” mkt share is not large enough, then deterrence signal may not be strong
enough and best cost avoider may not have incentive to incur costs to understand signal
j. increased litigation & cost would lead to higher prices or extinction of very product due to
the high cost of damages.
E. Concurrent and Successive Causation: When two or more causal agents would,
independent of each other, have caused ’s harm.
1. Courts attempt to apportion harm, separating injury into distinct events in successive
causation and holding liable for the entire indivisible nature of harm, if it was due to concurrent
causation.
case on point: Dillon v. Twin State Gas & Electric Co. p. 144
[successive]
 maintained wires to carry electric current over a public bridge. ’s decedent fell and was electrocuted on
wires. Court ruled  not entitled to protection from  to keep from falling, but ’s only liability was in exposing
the boy to the danger of charged wires.  deprived the boy, not of a life or normal expectancy, but of one too
short to be given pecuniary damages. Boy probably would’ve died from fall (successive event) separately from
5
electrocution. If found that boy would have only been injured by the fall,  would be liable for loss of life or
earning capacity resulting from electrocution.
case on point: Kingston v. Chicago & N.W. Ry. p. 145
[concurrent]
Sparks emitted from ’s locomotive caused fire on ’s northeast property while a northwest fire, origin unknown,
created a union with northeast fire. Jury found that fire constituted a proximate cause of destruction of ’s
property. Burden on  to show that by reason of such union w/ fire of such character the fire set by him was not
the proximate cause of damage. No principle of justice requiring  be placed under burden of specifically
identifying the origin of both fires to recover the damages for which either or both fires are responsible.
F. Contribution: A tortfeasor who has paid more than his equitable share of damages to a 
seeks to recover over and against a co-tortfeasor for the amount of such excess payment.
NEGLIGENCE
I. Definition: an injury to another arising from the failure to of the  to take ordinary care to avoid an
unreasonable risk.
A. Determining applicable general standard is a question of law for judge and determining whether
 failed to meet that standard and was negligent is a fact for the jury.
B. Origins and development of the Negligence concept: intentional or negligently caused injury
case on point: Brown v. Kendall p. 167
Two dogs were fighting in the presence of owners.  took stick to beat dogs, but accidentally strikes  in the eye.
Reason for dispute was whether it was necessary or proper for  to interfere and what degree of care was used by
each party. Court held before a cause of action may exist, there must be some form of fault or intentional
wrongdoing. To recover,  must show that  failed to use ordinary care.
C. General Standard: reasonable care under the circumstances
1. §283 (p. 175-6) – “the standard of conduct to which [one] must conform to avoid being
negligent is that of a reasonable man under like circumstances”; Why use this standard:
a. standard more comprehensible to non-experts, who make up juries
b. suggests the objective nature of the standard: it is not enough the  “did the best that
he could”; instead, the  must be judged by what is expected of the reasonable person.
case on point: U.S. v. Carroll Towing Co. p. 178
Sinking of barge along w/ cargo b/c of ’s negligence. Bargee was ashore for 21 hours, when barge got into
difficulties. Court held that owner should have had a bargee on board b/c harbor was crowded and work might
not be done properly w/o bargee. Judge Learned Hand introduced B < PL equation which examines:
(1) B = burden of taking adequate precautions (safety steps)
(2) P = probability of accident occurring
(3) L = loss incurred/gravity of injury or ham
2. Proper balancing of costs & benefits: Judge Hand’s inquiry has been recognized as the
central inquiry in determining whether  has been negligent.
a. §291 – Unreasonableness: How determined: Magnitude of Risk and Utility of Conduct
i. weighs risk of harm against utility of act
6
ii. ultimate question in negligence case: Not simply whether a reasonable person
would have recognized the risk, but whether recognizing the risk, that person
would have acted differently.
b. §292 – Factors Considered in Determining Utility of Actor’s Conduct (p. 180)
i. considers social value of the interest to be advanced or protected by the act
ii. extent of the chance that this interest will be advanced or protected by the act
iii. extent of the chance that such interest can be advanced or protected by less
dangerous means
c. §293 – Factors Considered in Determining Magnitude of Risk
i. considers social value attached to the interests which are imperiled
ii. extent of the chance that this interest will cause an invasion of another’s interests
iii. extent of harm likely to be caused to the interests imperiled
iv. # of people whose interests are likely to be invaded if the risk results in harm
case on point: Blyth v. Birmingham Waterworks Supp. p. 1
Judgment for  b/c  did what was reasonably expected under the conditions.  could not foresee on the
severest frosts would occur.
case on point: Livingston v. Seaboard Airline Supp. p. 3
 ruled to have exercised reasonable and proper care in arranging temporary care for minor with a priest. 
only liable for the consequences of their acts which they could reasonably foresee and by reasonable care and
prudence provide for. No reason to really suspect a priest’s intentions in 1952.
case in point: Hauser v. Chicago Supp. p. 6
 alleged that  failed safety step of installing guards on heating pipes. Judgment for  b/c construction of room
was with reference to its purpose and intended use and w/ reference to the prudent and careful use by
passengers.  couldn’t have reasonably foreseen ’s injuries would have occurred. Circumstances too remote.
Weaknesses in argument: ease of producing safety step and foreseeable potential victims like children.
case on point: McDowall v. Great Western Railway Co. Supp. p. 6
Safety step issue was parking the car behind the catch point, but safety step would not have made a difference
b/c kids likely to find a way to still let car loose.  did use a series of safety steps including putting on the brakes
and locking the cars.
case on point: Cooley v. Public Service Co. Supp. p. 12
Court would not tolerate a theory of “liable if you do and liable if you don’t”.  had a duty to also protect
electrocution on the street, where danger is more obvious and immediate. By producing such a safety step for
one risk, another risk increases. ’s duty under the circumstances can’t be to both.
case on point: Pease v. Sinclair Supp. p. 15
 filled bottles labeled “kerosene” and “gasoline” w/ water w/o a warning label of the actual contents.  should
have taken the safety step of a warning label b/c it was easy and low cost.
case on point: Paris v. Stepney Borough Council Supp. p. 8
 was employed at garage and injured his only good eye and sued company for negligence b/c of failure to
provide and require use of goggles. Court differentiates between probability of injury and extent of injury and say
negligence is based on probably of injury not seriousness of injury.
D. Special Rules Governing Proof of Negligence
1. Violation of Criminal Statutes
7
a. Safety statutes operate to particularize, rather than necessarily to raise the applicable
minimum standard of care.
b. Effect of particularization is to allow issues to be resolved by the judge as a matter of
law, which would ordinarily be decided by the jury as issues of fact. Especially true in
cases where violation of a statue is held to be negligence per se.
c. Mere violation of a safety statute does not automatically trigger negligence per se
inquiry. The harm suffered by  must be w/in the risks envisioned by the legislature.
case on point: Martin v. Herzog p. 201
[Negligence per se]
 crashed into  by not keeping to the right of center on the hwy. Trial court ruled for , but appellate reversed
b/c  did not have a light on vehicle (contributory negligence). There was a statute requiring lights for the
guidance and protection of other drivers. Cardozo says ’s negligence was negligence per se, and determinative
b/c of penal statute violation.
case on point: Tedla v. Ellman p. 20
[Rebuttable presumption of negligence]
 and brother were walking on hwy when struck by .  violated a statute by not walking on left side of hwy. 
chose to walk on the side with less traffic. Legislature’s intent for the statute was the preservation of life and limb
of pedestrians. Cannot assume that legislature would require observance of the statute if observance would
subject pedestrians to more imminent danger. Court concluded that statutes are subject to exceptions in
unusual/emergency circumstances where intent of statute is still adhered and deviation is with good cause.
case on point: Brown v. Shyne p. 207
 had no license to practice medicine, but himself out as being able to diagnose and treat disease. Appellate
court ruled that trial court erred in jury instruction stating that if  violated a statute (practicing w/o a license),
negligence could be inferred. Court held that failure to get license was not connected w/ injury. License does
not confer immunity from failure to exercise care.  had to prove that  failed to exercise proper care and skill
and this could not be inferred from the lack of a license. Strong dissent was that trial court was correct in ruling.
2. Custom: evidence of standard of care owed
a. prior relationship necessary
b. Medical malpractice is situation when custom is determinative: if cannot prove 
deviated from custom, then cannot recover
case on point: Trimarco v. Klein p. 215
 alleged  was negligent by failing to install shatterproof glass on shower door. When a customary way of
doing things precludes danger, this may establish liability of the departure is the proximate cause of the injury.
Evidence of custom reflects judgement and experience of larger group. Although such evidence is not
conclusive, it can serve as evidence of reasonable care. New trial ordered for jury to decide whether, at the time
of accident, the modest cost and availability of safety glass and the growing custom of using such glass, the 
should have take the safety step.
case on point: TJ Hooper p. 216
Following custom is not always a defense. Custom was not to have a receiver on boats. Court says this custom
is unreasonable. If industry-wide standard is low, the court must raise the standard.
case on point: Helling v. Carey p. 230
 failed to perform glaucoma exam. Risk of glaucoma slight, but test to detect was simple and inexpensive.
Seriousness of harm outweighed custom. Court willing to look beyond custom b/c it is not a complex issue.
Normally decisions concerning malpractice are taken away from jury b/c it’s on overly complicated issue.
8
3. Res Ipsa Loquitur – “the thing speaks for itself” – the facts speak for themselves. Allows 
to win cases in which the gap in the evidence prevents them from proving the specifics ’s
negligent conduct. Mere fact of accident occurring is evidence of negligence. RIL shifts burden
of proof to . Required elements:
a.  had EXCLUSIVE CONTROL –  most likely the one to take safety step
b. accident would not normally have occurred w/o ’s lack of ordinary care
c.  has exercised ordinary care and can’t determine ’s lack of ordinary care
d.  has access to information and knows what happened [not necessarily a required
element, but helps in some cases, especially surgical operations]
case on point: Boyer v. Iowa High School Athletic Association p. 239
 injured when bleachers collapsed. Court found  negligent for failure to inspect bleachers when  had control
before the start of the game.  claimed equal access to information, but court did not believe that  had access.
case on point: Shutt v. Kaufman’s, Inc. p. 242
 sat down on a chair in ’s store and knocked down display. Storeowner owes customers a reasonably safe
store, but is not an insurer of safety of customer. RIL not applicable in this case b/c  had significant accessibility
to cause of accident, so she had the opportunity to prove ’s negligence.
case on point: Escola v. Coca Cola Bottling Co. p. 248
 injured by when Coke bottle broke in her hand. RIL can still be used even if the injury occurred after the
instrument left ’s control, if  can prove that  had exclusive control when it left ’s hands and can exclude
other possible causes subsequent to ’s possession then  is still liable. Injury was a result of not discovering
the defective bottle when  had exclusive control.
Judge Traynor’s concurring opinion emphasizes concern over situations where consumers can’t assess risk,
but producers can, and thus consumers can’t insure against risk to avoid accident. He advocates strict liability
on the basis that responsibility should be fixed wherever it will most effectively reduce the hazards.
E. Limitations on Liability
1. DUTY TO RESCUE: The duty to do no wrong is a legal duty. The duty to protect against
wrong is a moral obligation only, not recognized or enforced by law.
a. Exceptions to general rule of no duty to rescue:
i. When  begins to rescue or sets up circumstances in which people rely on
case on point: Erie R. Co. v. Stewart p. 268
 was hit by ’s train. Watchman was not around to warn. There was not statutory requirement of a
watchman, so he was provided for voluntarily. Court held that people relied on the watchman, so practice of
having a watchman could not be discontinued w/o exercising reasonable care in warning of discontinuance.
Railway assumed a duty/responsibility of warning people of coming trains.  took the safety step of having
a watchman, so  is required to continue to taking the safety step as a standard of OC.
ii.  has control over the instrumentality that injures .
§322 (p. 271) – If the actor knows or has reason to know that by his conduct, whether
tortious or innocent, he has caused such bodily harm to another as to make him helpless
and in danger of future harm, the actor is under a duty to exercise reasonable care to
prevent such further harm.
9
case on point: Tubbs v. Argus p. 270
 rode as guest passenger in ’s car.  drove car into tree causing ’s injuries. After accident,  left
vehicle and failed to render assistance to , who suffered additional injuries. Court held that b/c  had
control of the instrumentality [car], he could be held liable for aggravated injuries due to failure to render
reasonable aid, even if he is not liable for the original injury [accident].
iii. a special relationship allows  to have certain knowledge of harm to a 3rd party:
When prevention of foreseeable harm requires  to control the conduct of another
person, or to warn of such conduct, the common law imposes liability only if the  bears
some special relationship to the dangerous person or to potential victim.
case on point: Tarasoff v. Regents of University of California p. 279
’s killer confided intention to kill  to psychologist. Court held that psychologist had a duty to warn parents
of danger b/c of special relationship w/ killer. Exception is imposed b/c of foreseeable harm of dangerous
person and there is a foreseeable victim.
Dissent: Duty to rescue should only arise when the  has actually predicted peril to 3rd party w/ certainty.
Otherwise, imposing such a liability would frustrate psychiatric treatment. People w/ violent tendencies will
be reluctant to seek help, and lack of confidentiality will reduce the effectiveness of whatever help is
obtained, thereby increasing violence as less patients get treatment. It is impossible to accurately predict
violent behavior and juries can make mistakes due to complexity of the case. This expansion of liability
would also discourage physicians from making certain diagnosis to avoid possible litigation.
2. Contributory Fault
(Note: assumption of risk & comparative negligence also under contributory fault heading, but
won’t be covered on final exam)
a. CONTRIBUTORY NEGLIGENCE – If  found to have contributed to his injuries, then
recovery is barred.  has burden of proving ’s negligence as well as disproving his own
contributory negligence.
§463 (p. 410) – conduct on the party of the  which falls below the standard to which he
should conform for his own protection, and which is legally contributing cause cooperating with the negligence of  in bringing about ’s harm.
§464 (p. 410) – appropriate standard of conduct is that of a reasonable man under like
circumstances.
case on point: Butterfield v. Forrester p. 409
 lacked OC w/ obstruction on road.  lacked OC b/c found to be riding hard and violently and failed to see
obstruction.  failed to use common and ordinary caution, so judgment for .
case on point: Davies v. Mann p. 410
’s ass was grazing on the road, when ’s wagon ran over it.  lacked OC by running at a “smartish
[hasty]” pace.  argued ’s contributory negligence by leaving ass on hwy, but court ruled that even if ass
was wrongfully there,  still had to go on the road a pace likely to prevent mischief. Rule in the case is
known as Last Clear Chance doctrine:
LAST CLEAR CHANCE: ’s defense against contributory negligence
(1) Helpless : a negligent  who is subjected to ’s subsequent negligence may recover if:
a.  is unable to avoid ’s negligence w/ OC
b.  is negligent and didn’t reasonably exercise OC to avoid harm when
i.  should have known of ’s vulnerability OR
ii.  would have discovered situation if he exercised vigilance
10
c. ’s lack of OC is after ’s lack of OC
(2) Inattentive : a  who w/ OC could discover the danger created by ’s negligence in time
to avoid the harm to him can recover if and only if:
a.  knows of ’s situation
b.  realizes/should’ve realized that  is inattentive and unlikely to avoid harm
c.  is negligent in failing to use OC to avoid harm
3. NIED – NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS: a special instance of
nonliability for foreseeable consequences
a. Continuum of recovery for mental and emotional harm reveals the struggle of courts in
cutting off liability to injured when  has clearly been negligent.
b. Struggle to cut off liability is often dealt with by using Proximate Cause doctrine
Impact Rule
Mitchell v. Rochester
(1896)
Zone of Danger
Waube v. Warrington
(1935)
Thing
Thing v. La Chusa
(1989)
Dillon
Dillon v. Legg
(1968)
Impact Rule: Any harm not caused by actual contact is not recoverable.
Mitchell v. Rochester [p. 344] –  negligently drove two horses up to . When horses stopped,  was
standing between them w/ no contact.  frightened and suffered a miscarriage. Court ruled that there could be no
recovery for any physical manifestations resulting from the fright, such as “nervous disease, blindness, insanity or
even miscarriage.”
Zone of Danger (Bystander Recovery): If  is the area in which a reasonable person would
perceive himself to be in danger of physical impact as a result of ’s negligence, even absence
contact,  may recover.
Waube v. Warrington [p. 344] – Mother looks out a window and watches child get killed by car and dies.
Court will not extend liability to cover  b/c she was out of range or ordinary harm.  had to show that she was in fear
of being struck by car to recover.
Thing v. La Chusa [p. 351] – Mother suffered emotional distress after son was injured in auto accident. She
was not at the scene of the accident. Court limited recovery allowed in Dillon. To recover,  must suffer “severe
emotional distress,” that is, reaction beyond that which could be anticipated in a distinterested witness.
Factors for determining recovery (limited those allowed in Dillon)
(1) close relatives to injured victim
(2) presence at “injury-producing event”
(3) awareness that this event was causing the injury to the victim and subsequently suffered emotional distress
Courts were frustrated with the uncertainty that emerged after Dillon and that minimal consideration had been given
to the importance of avoiding limitless exposure of liability. Case-to-case or ad hoc development of the law has
misled courts. Court tried to provide greater clarity to Dillon’s open-ended structure
Dillon v. Legg [p. 348] – Court held that a mother could recover for physical injuries caused by emotional
distress allegedly suffered as a result of witnessing death of daughter after being struck by car after crossing the
street.
Factors to be taken into account in determining liability:
11
(1) Whether  was located near the scene of accident
(2) Whether shock resulted from the direct emotional impact upon  from the sensory and contemporaneous
observance of the accident
(3) Whether  and victim were closely related
Court extended recovery to many foreseeable s who suffered emotional harm by no injury and who were not at the
scene of the accident. Court merely set up guidelines and gave jury case-by-case power to decide recovery for
innocent  who had legitimate case. Guidelines allow for combination and weighing of factors to determine
foreseeability. Dillon extends recovery to an area not really meant to be protected by law: emotional distress suffered
by 3rd party.
Direct Victim Principle [p. 361]
(1) damages for NIED may be recovered absence physical injury or impact
(2) NIED damages are allowed, despite the criteria imposed upon recovery by bystanders, in
cases where a duty arising from preexisting relationship is negligently breached.
Burgess v. Superior Court [p. 360] –  undergoes C-section and was under general anesthetic. Baby
suffered permanent brain and nervous system damage as a result of oxygen deprivation.  moved for summary
judgment arguing  did not meet requirements in Thing. Intermediate court reversed, ruling Thing not applicable b/c
 was a “direct victim” of ’s negligence rather than a “bystander”. Court used relationship of parties to establish
duty and therefore, liability. Pre-existing relationship between doctor and mother leaves no question that the duty of
care was breached.
Molien v. Kaiser Foundation Hospitals [p. 360] – First used the “direct victim” label.  mistakenly told
woman she had syphilis. Woman immediately suspected that she contracted disease from husband, and even
though mistaken diagnosis was corrected, the marriage could not survive the stress put upon it. Husband brought
action seeking damages for negligent infliction of emotional distress. Court held that someone who suffered
emotional distress as a result of conduct “directed toward” himself could recover for emotional distress even without
showing any physical injury.
4. PURE ECONOMIC LOSS: another instance of nonliability for foreseeable consequences
a. Traditional rule: Recovery of purely economic loss w/o injury is not recoverable even
though it was a foreseeable harm
i. allowing recovery would lead to limitless liability involving complex cases b/c in a
typical accident there is likely to be high # of people suffering financial harm
ii. complexity would drive up costs and make it difficult to discern between fraud and
legitimate claims
iii. reduces incentive to purchase insurance by high stakes players, who unlike,
Escola/Traynor’s ignorant consumers, understand insurance and are thus better
prepared to manage any harm than are consumers.
iv. creates compensation costs that are unnecessarily high
case on point: Barber Lines v. Donau Maru p. 392
’s ship spilled fuel oil in Boston Harbor, which prevented the Tamara from docking at a nearby berth, so she
had to discharge cargo at another pier & incurred significant financial costs. Recovery denied despite injury
being foreseeable and ’s proven negligence. s failed to bring themselves w/in any recognized category which
financial damages are allowed and failed to provide convincing reasons for the creation of any new exception of
class that would work to their legal benefit. Court points to policy considerations for limiting liability:
(1) administrative concerns: high # of people suffering financial harm in typical accident would significantly
raise the costs of tort actions and increase the complexity of cases
12
(2) disproportionality between liability and fault: tort liability provides a powerful set of economic incentives and
disincentives to engage in economic activity or to make it safer; allowing liability for pure financial harm
could create incentives that are perverse
b. Modern trend: allowing recovery for anticipated lost profits b/c harm foreseeable
case on point: J’Aire Corp. v. Gregory p. 397
Court determined s owed s duty of care by applying following criteria:
(1) extent to which transaction was intended to affect : ’s performance was intended and did directly
affect  b/c renovation occurred on premises of ’s restaurant
(2) foreseeability of harm to : clearly foreseeable that ’s delay would adversely affect ’s business beyond
the normal disruption associated w/ such construction
(3) degree of certainty that  suffered injury: unable to operate for a whole month + suffered additional
losses w/o heating & air conditioning
(4) closeness of connection between ’s conduct & injury suffered: ’s delay directly caused injury
(5) moral blame attached to ’s conduct: ’s negligence continued even after the probability of damage
was drawn directly to ’s attention
(6) policy of preventing future harm: wilful failure or refusal to complete a construction project with diligence,
where another is injured has made grounds for disciplining contractor
c. An indentifiable class of s: avoids the fear of mass litigation
case on point: People Express Airlines, Inc. v. Consolidated Rail Corp. p. 401
 forced to evacuate its premises and suffered interruption of business operations b/c of ’s negligence in
allowing chemical to escape. Court ruled that  who has breached duty of care to avoid risk of economic injury
to particularly foreseeable s may be held liable for actual economic losses that are proximately caused by ’s
breach of duty. Economic losses are recoverable damages when they are the natural and probably consequence
of a ’s negligence b/c they are reasonably to be anticipated in view of ’s capacity to have foreseen that the 
is demonstrably within the risk created by ’s negligence.
d. Although courts have moved away from Barber Lines’ no liability rule, no consensus has
emerged at to what the appropriate rule of liability is on purely economic losses.
PROXIMATE CAUSE – under above Limitations on Liability heading
I. Definition: The legal cause of an accident – whether and to what extent the ’s conduct foreseeably
and substantially caused the specific injury that actually occurred. Attempts to deal with liability for
unforeseeable or unusual consequences flowing from ‘s negligent acts. Involves public policy
considerations of how far we should extend liability.
A. Elements: Foreseeability – whether a reasonably prudent person would have foreseen the
harm ’s negligence would cause (easily manipulated concept and actually doesn’t define a
whole lot b/c the standard is open-ended and general)
1. harm foreseeable – Questions to ask:
a. At the time  took safety steps, what risks/dangers were foreseeable? AND
b. If injury has already occurred, was the result foreseeable?
2. s foreseeable: Was any harm at all to the  reasonably foreseeable when the  acted?
13
case on point: Palsgraf v. Long Island R.R. p. 309
 was standing on train platform when a package from a man rushing to get on train dropped and exploded.
Explosion threw some scales down that injured . Cardozo set a principled line to cut off liability –  had no
duty to  b/c there was no notice that package contained anything that would require care. Harm and  were
both unforeseeable. Dissent: Andrews argues that liability should be established with direct cause – natural
and continuous sequence of the dropped package causing ’s injuries, which were the proximate cause of ’s
negligent conduct. There was no remoteness in time and space.
case on point: Petition of Kinsman Transit Co. handout supplement
1-defectively installed deadman; 2-failure of devils’ claw; 3-too slow to raise bridge. s failure to take safety
steps could be linked to flood victims. Case not similar to Palsgraf b/c risk for foreseeable for a ship insecurely
moored in a fast flowing river is a known danger not only to herself but to the owners of all other ships and
structures down river, and to persons upon them. Dissent: Damming of the river was not foreseeable b/c it was
a weird event, too tenuous to foresee that vessels would arrange themselves as to create a dam.
B. Resolution will often depend on degree of particularity which judge or jury defines as reasonably
foreseeable consequences.
C. Remoteness in time and space: Were the particular nature and circumstances of the ’s
harm reasonably foreseeable when the  acted?
1. To establish PC, consequences must be reasonably foreseeable at time and place when 
acted (similar standard as est. negligence)
a. If results were too extraordinary and unusual, must decided whether the circumstances
warrant extension of liability. [see dissent in Kinsman]
2. PC may be established if injury follows from an unbroken sequence of events regardless of
remoteness
case on point: Marshall v. Nugent p. 320
After a collision occurred,  volunteered to go up the road to warn oncoming traffic.  walked about 75 ft before 
skidded and hit .  charged  and Socony, the owner of the oil truck that caused first accident. Court ruled that ’s
injury was not too remote in time or place from Socony’s negligent conduct b/c it occurred while the traffic mix-up
caused by Socony’s negligence was still persisting and not after traffic flow had normalized.
D. Intervening force that contributes to ’s injury does not necessary insulate  from liability if
1. intervening force was set in motion by 
2. intervening force was foreseeable and  failed to guard against such conduct
3. injury would have occurred despite intervening force
case on point: Watson v. Kennedy & Ind. Bridge & Ry. p. 326
’s injury caused by  spilling gas and Duerr throwing a match causing the explosion. If Duerr inadvertently or
negligently lighted and threw match in gas, this act by itself did not produce the explosion b/c it couldn’t have
done so w/o the negligence of , so  is liable. If Duerr’s act was malicious, ’s are not liable b/c they could not
foresee or reasonably guard against such an act.  is not bound to anticipate criminal acts of others by which
damage is inflicted. HOWEVER,  will NOT ALWAYS escape liability even if intervening act is intentional or
even criminal. If the intervening act is set in motion by  or when intervention is foreseeable,  is liable.
E. Other approaches to Proximate Cause [English Cases]
1. Once act is negligent, the fact that the result was not specifically foreseen is in immaterial.
14
case on point: In re Polemis p. 340
s owned ship that  was unloading.  dropped a plank into a hold of the ship that contained cans of benzine which
caused a fire destroying the ship. Arbitrator found that  was negligent in dropping the plank b/c some damage to
ship could be foreseen, but it was unlikely that dropping the plank would cause the spark. A reasonable person
standard is used to determine whether it is foreseeable that an act would cause damage. If the act is directly
traceable to the negligent act, then  is liable.
2. Polemis law changed: direct causation not enough
case on point: Overseas Tankship v. Morts Dock [Wagon Mound No. 1] p. 341
Wagon mound spoiled oil in Sydney harbor. At the time, acetylene torches were being used to repair the wharf. The
oil and embers from the wharf work ignited a fire that destroyed the wharf. Court held that “it does not seem
consonant w/ current ideas of justice or morality that, for an act of negligence, however, slight or venial, which results
in some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and
however grave, so as they can be said to be ‘direct’.”
3. American Formula: Balancing magnitude of risk and gravity of harm against utility of
conduct and have it applied to foreseeability in relation to proximate cause.
F. Where to draw the line in cutting of liability?
1. Argument to push line forward: would not be a slippery slope situation b/c unforeseeable
events do not occur often and will allow innocent s to recover.
2. Argument to push line back: extending liability will bring in too many cases, the more
unforeseeable the event, the more prone to mistake the judgment may be; also, increases the
complexity of cases. Holding  liable for unforeseeable circumstances may subject  to loss
wholly out of proportion w/ actual fault.
TRESPASS TO LAND and NUISANCE
I. Trespass [Common Law defn.] – any unauthorized entry, either by person or thing, upon another’s
land directly resulting from a volitional act; one of the earliest and strictest forms of strict liability.
A. Trespass law has been rendered more flexible by the development of and expansion of
nonconsensual privileges (e.g., private necessity), which in a variety of circumstances,
excuse intentional entries upon another’s land.
B. Unique characteristics of trespass:
1. Seeks protection of ’s exclusive possession of land
4. To constitute trespass, entry must be unauthorized AND
a. intended by 
b. caused by ’s recklessness or negligence
c. result of ’s carrying on an ultrahazardous activity
5. Circumstances of ’s privilege are carefully limited by judicial decisions, and there exists no
broadly based privilege deliberately to enter the land of another simply because, on balance,
the social benefit of doing so appears to outweigh the risks of harm to the land.
6. Once  is found to have committed an intentional trespass, in the absence of privilege,  is
entitled to at least nominal damages and to injunctive relief.
15
case on point: Peters v. Archambault p. 440
 seeks to compel s to remove a portion of their house which encroaches on s land. Prior to purchasing house 
had no knowledge of actual location of ’s dwelling on ’s land. Court stilled ordered removal of encroachment.
Dissent: Unusual circumstances of case justify denial of injunction otherwise it would be “oppressive and
inequitable”. Discovery of encroachment is best characterized as an unexpected windfall rather than intentional
injury. s are innocent of any wrongdoing and they did not deprice s of something which they believed they were
entitled to at the time of purchase. Injury to  is much greater than original unknown loss to .
II. Nuisance – protects ’s interest in the use and enjoyment of land and doesn’t require physical
entry, but the invasion must be wrongful.
A. Public Nuisance [§821B, p. 445] – an unreasonable interference with a right common to the
general public; a very broad concept and need not involve interference with interests in land
B. Private Nuisance [§821D] – a nontrespassory invasion of another’s interest in the private use
and enjoyment of land; narrower concept and necessarily involves interference with private
interests in land
1. To maintain a private action for public nuisance,  must suffer harm that is different inkind
that that suffered by the public at large.
C. General Rule [§822, p. 447] – One is subject to liability for private nuisance if, but only if, his
conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of
land, and the invasion is either:
1. intentional and unreasonable OR
a. §826, p. 447 – defines unreasonableness of intentional invasion as
i.
the gravity of the harm [§827] outweighs the utility [§828] of ’s conduct OR
ii.
harm caused by the conduct is serious and the financial burden of compensating
for this and similar harm to others would not make the continuation of the conduct
not feasible
2. unintentional and otherwise actionable under the rules controlling liability for negligent or
reckless conduct, or for abnormally dangerous conditions or activities.
case on point: Crushed Stone Co. v. Moore p. 466
 sought action b/c ’s operation of quarry damaged their property and interfered w/ rights to quite and peaceful
occupation and enjoyment of land. Judge ruled that quarry was a public and private nuisance, but that  should have
opportunity to correct problem.  attempted to correct problem, but ’s countered w/ evidence that quarry was still a
nuisance.  argued that the comparative injury to  ceasing operations was much greater than injuries s would
suffer w/ continuation of ’s business. Court held that in “where damages in an action of law will not give s an
adequate remedy against a business operated in such a way that it has become a nuisance,  are entitled, as a
matter of right, to have same abated, but injunction…notwithstanding the comparative benefits conferred thereby of
the comparative injury resulting therefrom.”  also tried arguing the “coming to a nuisance” doctrine, but 
successfully argued that they purchased their home w/ knowledge of the operation of the quarry.
case on point: Boomer v. Atlantic Cement Co. p. 469
s allege injury to property from dirt, smoke and vibration from ’s cement plant. Trial court found nuisance, allowed
temporary damages, but denied injunction. The ground for denial of the injunction is the large disparity in economic
consequences of the nuisance [damage total = $185,000] and of the injunction [$45 million investment + 350
employees at the plant]. Court chooses to grant injunction conditioned on payment of permanent damages to s
16
which would compensate them for the total economic loss to their property present and future caused by ’s
operations. Court concludes it is reasonable to think the risk of being required to pay permanent damages to injured
property owners would be a reasonably effective spur to research for improved techniques to minimize nuisance.
case on point: Spur Industries, Inc. v. Del. E. Webb Development Co. p. 476
 appeals a judgment permanently enjoining  form operating a cattle feed lot near ’s property. Court is concerned
with protecting a lawful business from the result of knowing and willful encroachment by others near his business
[coming to the nuisance]. Having brought people to the nuisance to the foreseeable detriment of ,  must
indemnify  for a reasonable abmount of cost of moving or shutting down business.
DAMAGES
I. Compensatory: amount of money necessary to restore  to pre-injury condition; often unavailable,
then damages include monetary value of difference between pre-injury and post-injury conditions.
A. Personal Injury: Medical expenses
1. expenses must be reasonably related to ’s wrongdoing
2. expenses must be reasonable amounts
3. Avoidable consequences rule: no recovery for consequences of ’s wrong if  could have
avoided it by taking reasonable measures (mitigation), such as refusing medical care.
Damages would be based on what would’ve happened if care had been taken.
4. Egg shell skull:  is liable for all harm, including unforeseeable, caused by wrongful conduct
5.  can recover future expenses proven w/ certainty. Future expenses are reduced to present
value, which does not take into consideration inflation.
case on point: Williams v. Bright p. 617
 refused to refused to a have a blood transfusion based on her religious beliefs (Jehovah’s Witness).Question for
appellate review was not merely the measurement of ’s damages under traditional tort law, but the broader
controversy involving ’s beliefs and their proper affect on her monetary award. Issue was whether the
consequences of ’s beliefs must be fully paid for here on earth by someone other than the injured believer.
case on point: Coyne v. Campbell p. 623
’s injuries were treated by colleague, so he didn’t incur in any medical expenses. No court awarded any damages
b/c only entitled to what was actually paid for or lost. Does not consider the moral obligation  will have to treat
colleagues is they get into similar situation. Dissenting opinion considered collateral source doctrine: a wrongdoer
will not be allowed to deduct benefits which  may have received from another source. Tortfeasor should not be
allowed to escape pecuniary consequences of his wrongful act simply b/c victim received benefit from 3 rd party.
Doctrine justified in terms of a safety signal needing to be sent.  should pay for injury inflicted.
B. Lost Earnings and Impairment of Earning Capacity
1. Basic measure of recovery: out-of-pocket losses up to the time of the trial/settlement and
anticipated losses in the future
case on point: Holton v. Gibson p. 630
 less able to perform certain services. “Economic horizon” less board, meaning possible promotional opportunities
and future earning capacity. Despite ’s failure to show diminution in wages, does not mean  is entitled to
17
reduction in financial responsibilities. Where permanent injury is involved it’s not the status of immediate present
which determines the capacity for remunerative employment, but the earning capacity of ’s whole life span.
Variables for determining Diminished Earning Capacity:
(1) ’s basic earning capacity
(2) % by which earning capacity has been diminished supported by expert medical testimony
(3) expected duration of disability, and if permanent…
(4) life expectancy of  (use of life expectancy tables)
2. Recovery for future harm only permitted if  has evidence that such a harm is probable.
case on point: Mauro v. Raymark Industries, Inc. p. 634
 sued b/c exposure to asbestos had increased the risk of developing lung cancer. Trial court awarded only $7500
and instructions to jury rejected claim for enhanced risk of cancer development. Prospective damages are not
recoverable unless reasonably probably to occur (>50%) b/c too speculative and  can later sue. Damages would
be rendered for diseases that might never occur and would exact societal costs in the form of higher insurance
premiums and higher product costs. Dissent: rewarding damages for increased risk appropriate b/c enhanced risk
is a present injury.
case on point: Grayson v. Irvmar Realty Corp. p. 640
 was engaged in development of operatic career when a fall on ’s premises impaired her hearing. Consistent w/
Mauro, court doesn’t allow recovery b/c assessment of future earning capacity too speculative. Amateurish interest
has no pecuniary value. Judgment modified from $50,000 to $20,000.
3. Calculating Impaired Capacity to Earn w/ respect to Homemakers & the Young:
a. Homemakers: For those who have never worked, possible considerations are
(1) the likelihood of entering the workforce at some time in future
(2) placing market value upon services a typical homemaker performs for the family to
reach a total replacement cost
(3) “opportunity costs” – the income that the homemaker could’ve earned if she worked
in the market
b. Young:
(1) minimum wage
(2) intelligence & skill tests administered at school prior to injury
4. Adjustments in Reaching the Final Recovery Figure
a. Reducing the recovery to present value: the right to receive one dollar for x number
of years at y rate of interest b/c judgment is a lump sum and is supposed to cover a
specified number of years
b. In some states recovery not reduced to present value b/c of inflation rate consideration
c. More courts have adopted an inflation-adjusted rate for discounting present value and
use a rate lower than the then current low risk rate of return on investments
C. Pain, Suffering and Loss of Enjoyment of Life [Non-pecuniary damages]
1. Pain and suffering is the most difficult element of recovery to measure.
a. per diem argument: a dollar value for ’s pain for whatever time segment ’s attorney
chooses
b. to recover for physical pain associated w/injury  must have been conscious, but need
not necessarily be aware of what is happening
case on point: Walters v. Hitchcock p. 650
18
 went into surgery w/ low-risk operation or removal of thyroid gland, but doctor accidentally removed part of
esophagus. Damage award was $2 million when medical bills were only $59,000. Award considered not too
exorbitant b/c  had not been restored to condition prior to surgery and still suffers a great deal. Dissent: 
made no claims of lost earning capacity or claims for future surgery or medical expenses, thus $1,940,000 of
award was for general damages, which judge considered to more than compensate . Judge considered about
higher insurance premiums b/c of growth in malpractice liability awards.
2. Loss of Enjoyment of Life: cognitive awareness is a prerequisite for recovery
case on point: McDougald v. Garber p. 656
 underwent C-section and during surgery  suffered oxygen deprivation leading to brain damage and comatose
condition. Jury found  liable & awarded $9,650,102 in damages – $1,000,000 for conscious P&S, separate
award of $3,500,000 for loss of enjoyment of life, balance of damages was for lost earnings and the cost of
custodial & nursing care; husband received $1,500,000 for derivative claim of loss of wife’s services. Judge
reduced award to $4,796,728 – striking entire future nursing care ($2,353,374) and by reducing separate awards
for conscious P&S and lost of pleasures & pursuits of life to one sum $2,000,000. Conscious awareness is
required for loss of enjoyment of life b/c goal of tort is to make injured party whole not to punish to degree of
injury. P & S should not considered separately from loss of enjoyment of life b/c it’s duplicative and excessive
awards will result. Dissent: Loss enjoyment of life is an objective damage item, conceptually distinct from P&S.
P&S compensates physical and mental discomfort while LEL compensates for limitations on one’s life.
3. Komesar’s article:
a. Arguments against granting P&S: Difficult to measure, giving juries leeway that will
result in inconsistencies that will fail signal and deterrence mission of torts system. People
would not buy insurance for nonpecuniary damages b/c money is inadequate replacement
for P&S (quality of life, enjoyment of recreational activities, etc.)
D. Wrongful Death
1. Any action for recovery from tortuous  are terminated with ’s death, but law has changed
a. survival statutes prevent abatement of existing causes of action due to death of either
party
i. recovery is what ’s decedent would have been able to recover had he/survived
b. wrongful death statutes create causes of action that allow recovery when ’s tortuous
conduct causes someone’s death
i. Basic measure of recovery is harm caused to ’s decedent’s family by ’s conduct
2. Most widely adopted measure of recovery for wrongful death: measures recovery by the loss
(in some states including mental anguish) suffered by surviving family members
E. Damage to Personal Property
1. recovery: difference between market value of property before injury and market value after
2. if property has been totally destroyed than the market value is the salvage value, if any
F. Punitive Damages: awarded against a  for wilful, wanton, malicious, or reckless tortious
misconduct, intended to punish wrongdoer and provide a deterrent to others
1. Standards for considering whether to award:
a. whether there is a reasonable relationship between the punitive damages award and the
19
harm likely to result from the ’s conduct as well as the harm that actually occurred.
b. degree of reprehensibility of ’s conduct, the duration of the conduct, the ’s awareness,
any concealment, and the existence and frequency of similar past conduct
c. profitability to  of the wrongful conduct and the desirability of removing that profit and
of having  also sustain a loss
d. financial position of 
e. all the costs of litigation
f.
the imposition of criminal sanctions on  for his conduct, these to be taken in mitigation
g. existence of other civil awards against  for same conduct, to be taken in mitigation
2. Pro:  needs to be sent a strong signal to deter such behavior
3. Con: jury attack of “deep pockets” – general hostility toward rich and sympathy for injured
a. When jury awards are irrational, signal sent is inconsistent and fails to determission
b. When punitives to high, it might cease production of valuable products or drive prices up
too high (also, over insurance)
case on point: Owens-Illinois, Inc. v. Zenobia p. 689
 sues for damages alleged to have been caused by asbestos manufactured by . Court raised standard for
granting punitives. Burden of persuasion becomes “clear and convincing” rather than “preponderance” and 
required to show “actual” vs. “implied” malice. Court argues implied malice has been overbroad in application and
has resulted inconsistent jury results. Dissent: argues many eligible cases will be left out w/ higher standard.
20
CA
NY
WI
Burgess v. Superior Ct [1992] – “driect victim” standard for NIED
Dillon v. Legg [1968] – standards for NIED
Escola v. Coca Cola Bottling Co [1944] – Res ipsa loquitur (Traynor advocates strict liability)
J’Aire Corp v. Gregory [1979] – extensive criteria for PEL
Molien v. Kaiser [1980] – “direct victim” standard for NIED
Sindell v. Abbott Laboratories [1980] – Market share liability, DES
Summers v. Tice [1948] – Alternative liability, indivisible cause of harm
Tarasoff v. Regents of the UC [1976] – duty to rescue
Thing v. La Chusa [1989] – new standards for NIED based on Dillon
Ybarra v. Spangard [1944] – Alternative liability, burden shits to  to show OC
Barber Lines v. Donau Maru [1985] – strict recover for PEL
Barton v. Bee Line, Inc. [1933] – Subject consent (privilege to battery)
Boomer v. Atlantic Cement [1970] – Nuisance, awarding of permanent damages
Brown v. Shyne [1926] – Negligence (doctor practices w/o license)
Coyne v. Campbell [1962] – damages, medical expenses, collateral source doctrine
Grayson v. Irvmar Realty [1959]– damages, future harm
Hall v. E.I. Du Pont de Nemours [1972] – Enterprise liability
Kinsman Transit [1964] – Proximate cause, foreseeable s
Marshall v. Nugent [1955] – Proximate cause, remoteness in time and space
Martin v. Herzog [1920] – Negligence per se
McDougal v. Garber [1989] – damages, loss of enjoyment of life
Mitchell v. Rochester [1896] – Impact rule for NIED
Palsgraf v. Long Island R.R. [1928] – Proximate cause (exploding package on train platform)
Tedla v. Ellman [1939] – Rebuttable presumption of negligence
Timarco v. Klein [1982] – Custom, landlord-tenant
TJ Hooper [1932] – Custom, receivers on boats
US v. Carroll Towing Co. [1947] – Negligence, general standard
Williams v. Bright [1997] – damages, medical expenses
Kingston v. Chicago & NW Ry. [1927] – Concurrent causation (2 fires)
Vosburg v. Putney [1891] – Battery (unlawful act)
Waube v. Warrington [1935] – “zone of danger” for NIED
Bang v. Charles T. Miller [1958] MN – Custom in medical malpractice
Boyer v. Iowa High School [1967] IA – Res ipsa loquitur (bleachers)
Brown v. Kendall [1850] MA – Negligence
Courvoisier v. Raymond [1896] CO – Self defense, permissible force
Crushed Stone v. Moore [1962] – Nuisance, comparative injury
Dillon v. Twin State Gas & Electric [1932] – Successive causation (wires over bridge)
Doe v. Cutter Biological [1994] ID – Alternative liability, Factor VIII as compared to DES
Garratt v. Dailey [1955] WA – Battery (intent)
Helling v. Carey [1974] WA – Custom, failed glaucoma exam
Holton v. Gibson [1960] PA – damages, lost earnings, diminished “economic horizon”
Hoyt v. Jeffers [1874] MI – specific causation w/ circumstantial evidence
Kennedy v. Parrot [1956] NC – Custom in medical malpractice
Mauro v. Raymark Industries [1989] NJ – damages, recovery for probable future harm
O’brien v. Cunard Steamship Co. [1891] MA – Objective consent (privilege to batter)
Owens-Illinois v. Zenobia [1992] MD – punitive damages
People Express v. Consolidated Rail [1985] NJ – identifiable class of s for PEL
Peters v. Archambault [1972] MA – Trespass
Ploof v. Putnam [1908] VT – Defense of property
Shutt v. Kaufman’s Inc. [1968] – Res ipsa loquitur (shoe store)
Smith v. Rapid Transit [1945] MA – specific causation w/ mathematical probability
Spur Industries v. Del E. Webb [1972] AZ – Nuisance, indemnification
Tubbs v. Argus [1967] IN – duty to rescue
Vincent v. Lake Erie Transport. [1910] MN – Defense of property
Walters v. Hitchcock [1985] KS – damages, P&S
Watson v. Kentucky [1910] KY – Proximate cause, intervening force (match thrower)
21
TORTS QUICKLIST
Intentional Torts
I. Battery: harmful or offensive contact
A. Intent [Garrett]
B. Contact [indirect also suffices, see Garrett]
C. Unlawful act [Vosburg]
II. Privileges
A. Consent [O’Brien, Barton]
1. Custom [Bang, Kennedy]
B. Self-Defense
1. Permissible Force [Courvoisier]
2. Defense of Property
a. Necessity [Ploof, Vincent]
III. Actual Causation
A. Specific Causation [Hoyt, Smith]
B. General Causation [Benedictin example]
C. Alternative Liability
1. Joint and Several Liability [Summers, Ybarra]
2. Enterprise Liability [Hall]
D. Market Share Liability [Sindell, Doe]
E. Concurrent and Successive Causation [Dillon, Kingston]
F. Contribution
IV. Negligence
C. General Standard [US v. Carroll Towing]
2. Proper balancing of costs & benefits [supplement cases]
D. Special Rules Governing Proof of Negligence
1. Violation of Criminal Statutes [Martin, Tedla, Brown v. Shyne]
2. Custom [Trimarco, TJ Hooper, Helling]
3. Res Ipsa Loquitur [Boyer, Shutt, Escola]
E. Limitations on Liability
1. Duty to Rescue [Erie, Tubbs, Tarasoff]
2. Contributory Negligence [Butterfield, Davies]
Last Clear Chance
3. NIED
Impact Rule [Mitchell]
Zone of Danger [Waube]
Thing v. La Chusa
Dillon v. Legg
Direct Victim Principle [Burgess, Molien]
4. Pure Economic Loss
a. Traditional Rule [Barber]
b. Modern Trend [J’Aire]
c. Identifiable class of s [People Express]
1
1
2
2
2
2
3
3-4
4
4
5
5-6
6
6
7
7-8
8
9
9-10
10
10-11
11
11-12
12
12
13
13
22
V. Proximate Cause
A. Foreseeability
1. harm foreseeable
2. s foreseeable [Palsgraf, Kinsman]
C. Remoteness in time and space [Marshall]
D. Intervening Forces [Watson]
E. Other Approaches [English Cases]
F. Where to draw the line?
VI. Trespass to Land and Nuisance
A. Trespass [Peters]
B. Nuisance [Crushed Stone, Boomer, Spur Industries]
VII. Damages
A. Compensatory
1. Personal injury [Williams, Coyne]
B. Lost Earnings and Impairment of Earning Capacity [Holton, Mauro, Grayson]
C. Pain and Suffering and Loss of Enjoyment of Life [Walters, McDougald
D. Wrongful Death
E. Damage to Personal Property
F. Punitive Damages [Owens]
13
14
14-15
15
15-16
16-17
17
17-18
18
19
19-20
23
1998 Final Exam – Disaster in Pol Valley
July 1, 1998 Explosion created by strange combination of factors unlikely to occur again
(1) GORE – airborne pollutant
a. produced by Kenstar, Newt, and Lott, each produced 1/3 of total production
[joint and several liability – Kenstar would be liable for all the damages]
[market share liability – Kenstar will likely only pay for % of market share]
b. since explosion, Newt and Lott went out of business
(2) Hide owned a boat w/ a FIBERGLASS hull
a.
SONIC VIBRATION created when Hide’s boat struck the side of
Hott Dam, combined w/ GORE, explosion occurred.
(3) Hutch let the boat loose tied to his private dock. Hide and other boaters tied their boat to Hutch’s
dock b/c it was convenient and Hutch was rarely there and never complained about the practice.
Additional Facts
(1) GORE was interchangeable/generic, so it was impossible to know which company produced the
pollution that interacted with the boat.
[Sindell v. Abbott]
(2) Feb. 14, 1995 – report was issued regarding GORE and the increased probability of death from
lung cancer and emphysema in smokers and other people already susceptible to these diseases.
a. report indicated a device that would eliminate most of pollution at moderate expense
b. also suggested limited chance that connection between GORE and disease would be
discovered; wrongful deaths are limited; most victims of pollution would not bring suit
[distribution #2]
(3) State statute required that all boats carry and use rubber bumpers to decrease damage to piers and
other docking facilities. Hide did not use bumpers at the time of accident.
[violation of penal statute – negligence per se]
State of Dread
Contributory Negligence considered
Negligence per se for violation of penal statutes
Pure Economic Loss: courts are between Barber Lines and People Express approach
Punitive Damages allowed when they serve important social purpose
24