Torts table of contents/issue spotter
I. CAUSATION OF HARM
A) Traditional “But-for”
1. Causation is the link between the negligent actor and the harm
2. Traditional “But-for” test: without it, the harm would not have occurred.
3. Traditional burden of proof: preponderance of the evidence
B) Concurrent causes: substantial factor test
1. Sometimes ’s conduct can meet “cause in fact” requirement, though it is
not a “but for” cause (2 events combine to cause the harm)
2. Can’t get above 50% but want to compensate
3. Restatement accepts substantial factor where concurrent causes; but-for
must be a substantial cause.
C) Relaxed causation
1. Must show that  destroyed a substantial possibility of recovery
2. Don’t require  to specify causation if  negligence destroyed a substantial
possibility of survivial.
D) Lost chance
1. Compensating the loss of the chance of survival (not the death)
2. Produces aggregate justice, but sacrifices individualized justice
3. 4 approaches
II. JOINT AND SEVERAL LIABILITY (MULTIPLE CAUSATION)
A) Joint and several liability generally
1. If more than 1 person is a proximate cause of ’s harm and the harm is
indivisible, each  is liable for the entire harm
2. Can escape liability if can prove it wasn’t you.
B) Several situations where it applies
1. Concerted activity: 2 people get together to do something (act in
concert)(Summers v Tice)
2. Common duty: people acting in concert who had an obligation to do the
same thing. (wall of warehouse)
3. Independent acts: acting independently, but negligently produce an injury
that is incapable of apportionment (auto accident)
III. COMPARATIVE FAULT (PROPORTIONATE AND JOINT
LIABILITY)
A) Rejects “all or nothing” approach
1. Attempts to divide liability between  and  in proportion to their relative
degrees of fault.
B) Development in US
1. Recent in US, not until 1970s
2. Mostly adopted by legislatures, although some (like CA) judicially
C) Pure v. Modified
1. Pure: no amount of fault by  will bar
2. Modified: varies; may need >50%, or some % larger than 
D) Last clear chance disappears (usually)
E) Assumption of the risk
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1. Li v. Yellow Cab approach: if  consciously decides, then apportionment
2. Hypo
F) Applying comparative fault to intentional torts
1. Not many apply
G) Mitigation of damages:courts say can’t recover for damages didn’t mitigate
1. Traditional contributory negligence (bar to recovery)
2. Some courts use “apportionment”: won’t bar, but will apportion damages
3. Comparative negligence jurisdictions: 40 states—reduce  damages by fault
H) Contribution and indemnity
1. Contribution:  gets back a proportion of what they paid other people
2. Indemnity shifts the entire loss from one party to another
3. Pro Rata share
I) Differing opinions on whether joint and several survives move from
contributory negligence to comparative fault
J) Apportionment of liability:
1. Majority view: jury should not be allocated to allocate fault between
negligent and intentional torts because can’t come up with logical comparisons
2. Minority view: yes
IV. EXTENT OF LIABILITY: PROXIMATE CAUSE—THE
FORESEEABILITY PROBLEM
A) Foresight and hinsight: how far should one’s liability extent for causing
harm (hindsight v foresight).
B) Direct causation:  is liable for all consequences of his negligent act,
provided that these consequences are not due in part to “superceding causes.”
C) Foreseeability
1. Dominant view:  generally liable only for those consequences of his
negligence which were reasonably foreseeable at the time he acted.
D) Superceding causes
1. No set formula for determining, but a) must come into play after actor is
negligent, b) must be foreseeable at time of ’s conduct, and c) did ’s
conduct increase ’s exposure to harm.
2. Restatement: refers to superceding causes as a subset of intervening causes
3. Unforeseeable : (Palsgraff), duty runs to those in zone of danger,
foreseeable s
4.  liable for additional consequences:  takes  as finds/thin skull
5. Foreseeability rule not strictly applied where  is a rescuer
6. Suicide cases: generally an actor’s negligence is held to be the proximate
cause of suicide if the actor had the power to prevent the suicide
7. Dram shop: usually are responsible
E) Beyond physical harm (limitations based on the type of damage)
1. Traditional rule disallows pure economic loss (resulting from negligent act)
2. Exceptions
3. Emotional impact: originally didn’t allow recovery, then developed impact
rule—now recover when  fears for his own safety if that fear leads to physical
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results (various tests).
V. INSURANCE
A) It’s a mechanism for spreading loss.
1. Decreasing marginal utility of a dollar
B) People are risk averse, are willing to pay a premium
C) Chance of loss: probable loss/total exposure to loss
1. If there are 1000 stores and 1 is predicted to burn, chance of loss=1/1000
2. Risk: uncertainty about chance of loss (1/1000 might not be right)
D) Insurance reduces uncertainty about chance of loss
1. If have enough homogenous risk units then predictions can be made
2. To have effective insurance there must be enough homogenous risk units
E) Insurance companies attempt to segregate risk into pool
1. Homogenous units: want them to be the same as much as possible
2. Can segregate by class characteristics
3. Can also use individual characteristics
F) Insurance contrary to the world of tort
1. Tort looks to deter, contrary to loss spreading goals of insurance
2. Tension with other social goals (could create differences in rate structure)
G) 1st party insurance is typically cheaper and more efficient than 3rd party
1. Typical auto will have both
2. No fault is 1st party
3. Uninsured motorist is a hybrid
4. If justice is goal, will favor 3rd party, if spreading then maybe 1st
VI. STRICT LIABILITY
A) Beginnings with Rylands v. Fletcher
1. Responsibility for consequences of non-natural use
B) Reciprocal v. Nonreciprocal risks
1. If imposing higher levels of nonreciprocal risks, fairness requires
compensation of the injured party
2. Dawn of the industrial age: a question of what activities that produce injury
should be subject to strict liability.
C) Restatement rule
1. Codifies Rylands to impose strict liability in cases of “abnormally
dangerous” activities (change from 1st Restatement). Lists 6 factors to be
considered.
2. Very malleable analysis
3. First Restatement talked about “ultrahazardous” whereas 2nd talks about
“abnormally dangerous” where there is a level of danger and how does it fit in.
4. Contributory negligence is not recognized as a defense to abnormally
dangerous activities.
5. Comparative fault probably is not a defense because we want to internalize
costs (so don’t want to shift them to injured party)
6. Assumption of risk can be a defense
7. Proximate cause: trend to apply some rules that were developed in the
context of comparative fault
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VII. PRODUCTS LIABILITY
A) Historically, negligence was limited by privity
B) Requirement of privity for negligence actions is later dropped
1. Consumers can now bring claims against remote manufacturers (must still
show causation).
2. Universally the rule that one who negligently manufactuers a product is
liable for any personal injuries proximately caused by his negligence.
3. Policy reasons: overcomes jurisdiction and gives incentive to inspect
4. Still requires showing a negligent act or omission that was cause in f act
D) Drastic reduction in privity requirement for warranty action
1. Breach of warranty started out basically as a contract action
2. Henningsen v. Bloomfield Motors drastically reduces the privity
requirement in warranty actions the same way MacPherson had for negligence
3. Privity: some courts distinguish but now generally abandoned.
4. §2-318 provides 3 alternatives for horizontal privity
5. 2 types of implied warranties: implied warranty of merchantability and
implied warranty of fitness for a particular purpose
6. Warranty defenses (disclaimers, must use UCC formula, if give any…)
D) Introduction of strict liability in tort to products liability
1. Historical emergence: many courts have abandoned language of “implied
warranty” and gone to “strict tort liability.”
2. Some UCC provisions which address these issues
3. Restatement applies product liability in tort (Traynor) to the manufacturer,
retailer, and other persons in the distributive chain
4. Virtually any reasonably foreseeable user or purchaser of a defective
product will have standing to sue the manufacturer or seller
5. Product v. service: distinction still relevant in most jurisdictions (strict
liability doesn’t apply where it’s a service)
6. 3 approaches to recovering from retailers (allow, limited, bar)
7. Holding retailers liable
8. Component manufacturers: most allow
E) Design Defect
1. Product manufacturer isn’t responsible for all injuries in the use of their
products.
2. Restatement lists 3 ways that products could be defective (manufacturing,
design, instructions and warnings).
3. Aspects of negligence: most design defect claims have heavy negligence
aspects.
4. Design defect cases problematic
5. Consumer expectations test: is product dangerous beyond the expectations
of an ordinary consumer?
6. Pure negligence (risk/utility balancing): some courts have explicitly held
that whether a product suffers from a “design defect” is to be determined by a
pure negligence standard, in which the product’s utility is to be weighed
against the risks it presents.
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7. Difference from negligence depends on when the calculation of risk-utility
is made.
8. Combination: consumer expectations a floor, not a ceiling to recovery.
9. California test: assures no dv for , case must go to jury on causation or
risk utility grounds.
10. Alternative design must be practical as well as safer
11. Inherently dangerous products: don’t want courts making these decisions
F) Duty to warn
1. Presence or absence of a warning may have a great bearing on whether the
product is “defective” or “unreasonably dangerous.”
2. Significance: defective product can’t be made undefective by warning, but a
product that is not defectively designed and manufactured may treated as
defective if adequate warnings aren’t given. Value to consumer autotomy.
3. GA rule: don’t have to warn of obvious risk.
4. Courts may apply different categories of what is scientifically knowable for
drugs.
5. Differing opinions on whether there is strict liability for drugs.
6. Manufacturer is liable, in strict liability, for any representations made.
7. Restatement says that a drug can’t be defective unless the risks are so great
that a doctor wouldn’t prescribe it to any class of persons. Different than other
products for several reasons.
8. If warn of all things could lessen impact
G) User (mis)conduct
1. Misuse is a defense that may be raised by a manufacturer to say that a
product was safe but for the misuse.
2. A defense of misuse will succeed only if the misuse was unforeseeable.
3. Cost internalization: most courts say this is consistent with cost
internalization.
4. Comparative fault may not provide proper incentives for cost internalization
5. Assumption of the risk (should it be a separate and complete defense).
H) Preemption
1. Some laws establish standards for labels or designs
2. Federal laws could trump state law if it gives more specific guidelines.
Presumption, based on federalism, is that Congress didn’t intend to preempt.
3. Preemption could be express or implied
4. Preemption allowed if the manufacturer commits fraud against the agency.
I) Statues of repose: if a product doesn’t hurt anyone within a certain time
after manufactuer, claims barred.
VIII. BEYOND TRADITIONAL TORT PROCESSES
A) Mass Marked Products: cause in fact problems with product liability
1. Market share liability: where we know  wrongful, but don’t know which 
hurt which  might hold each  liable for % of ’s injury based on ’s market
share.
2. Alternative liability: They all did something wrong and one of them
actually hurt , if it’s defective for one manufacturer then it’s defective for
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them all. Therefore, want all of them to be responsible via joint and several.
3. Concerted activity theory: involves some type of conscious collaboration
that would justify joint and several.
B) Market share as basis for damages
1. % of market share: give to people who  didn’t hurt, but end amount same
2. How to define “the market.” (becomes problematic when using different
markets).
3.  could end up paying more than its share.
4. Achieves aggregate justice but sacrifices some goals of individualized
justice.
5. Review of approaches
IX. COMPENSATION FOR HARM
A) Damages generally
1. Compensatory damages: meant to put  in roughly same position (applies
to every kind of tort).
2. Types of damages: economic/special (lost wages/med) v.
noneconomic/general (pain and suffering).
3. Per diem argument: split of authority on whether counsel should argue per
unit damages for pain and suffering in front of a jury
4. Lost enjoyment of life (aka Hedonic): minority (refuse), majority (consider
as a fact) and make it a separate item.
B) Problems in computing future damages: 3 ways to deal with future harm.
1. Enchanced risk of future harm: recovery for harm that hasn’t developed yet
but might (courts don’t like claim splitting).
2. Present emotional distress: allows claim splitting to better approximate
damages.
3. Allow monitoring expenses, but not damages where enchanced risk can’t be
calculated (let alone rise above 50%).
4. Future lost earnings should be calculated based on a preinjury rather than
postinjury life expectancy.
5. Installment payments: NY statute splits into annual payments. In other
jurisdictions, if payments aren’t annual,  gets a lump sum discounted for
present value.
C) Collateral source rule
1. Accepted in a majority of jurisdictions; as long as payment for any aspect of
harm is not made by  or someone acting on his behalf, the ’s recovery is not
diminished by the amount of these payments.
2. Situations where it applies
3. Rationale: payment by , aiding wrongdoer, and subrogration.
4. Rule has been attacked and half states have modified it under tort reform
D) Punitive damages
1. Sometimes awarded to penalize  and deter similar wrongdoers
2.  must exhibit willful, outrageous conduct with malice.
X. WRONGFUL DEATH
A) Consequences of injured party’s death
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1. Survival and wrongful death statues enacted
B) Survival statutes
1. Every states has them, about half claim survives decedent. Some
differentate between injuries that didn’t lead to the death or damage.
2. No claim for death itself: where there are 2 statutes, survival action
restricted to losses prior to death.
3. Survival of action against dead : action can still be maintained.
C) Wrongful death
1. Most states have special wrongful death statutes which allow defined group
of persons to recover the loss they sustained by virtue of decedent’s death.
2. Statutory coa that defines who can and can’t recover.
3. Pecuniary loss: wrongful death generally limited to pecuniary (what dead
guy would have given someone), but some open up to more intangible factors.
4. Would have covered Jane Doe for whatever was stopped by periodic paymn
D) Defenses in wrongful death and survival actions
1. Survival actions—whatever defenses exist against decedent when he is
alive still against him when he is dead ( in his shoes).
2. Wrongful death-- suing for own harm (affects if  can assert defenses that
would have been avalible against the decedent). Majority allow.
3. If beneficiary was negligent: joint and several liability might be a way
around but could create immunity problems.(???)
E) Loss of consortium
1. Courts all over the map.
2. Spouse can always recover.
3. Children: parents generally allowed to recovery medical expenses, some
allowing recovery for society and companionship.
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