I. Intentional Torts
a. Direct Intentional Torts
i. Battery- An actor must act with 1) intent or substantial certainty 2) to cause a
harmful or offensive contact 3) and the harmful or offensive contact must occur.
1. Requires dual intent.
2. Intent or Substantial Certainty
a. Requiring Fault
i. There must be fault in order to prove liability.
ii. Van Camp v. McAfoos
1. Rule- there must be fault in order to prove liability
for battery.
2.  was hit in the back of the legs by the  on a tricycle. 
did not provide enough facts to suggest  at fault.
a. Corrective Justice- holds s liable only for the
harms they wrongfully caused.  Public Policy
of Fairness.
b. Intent
i. Single Intent- intent to make contact.  offenses against one’s
property.
1. Trespass, Trespass to Chattels, and Conversion.
ii. Dual Intent- intent to make contact and the intent that the
contact be harmful or offensive.  Battery, Assault, FI.
1. White v. Muniz
a. RULE- one must appreciate the offensiveness
of their actions.
b.  had Alzheimer’s. She struck the  in the face
while trying to change her diaper.
c. Jury was instructed that in order to find one
liable for battery they must in addition to
intending the harmful or offensive contact,
appreciate the offensiveness of their actions.
i. Court determined this was an adequate
jury instruction.
d. HYPO-  is delusional and shoots his father-inlaw thinking he was a terrorist. Battery?
i. YES. There was intent to shoot the
father-in-law regardless of who he was.
The  being delusional doesn’t matter
because he intended to cause a harmful
contact.
2. Mullins v. Parkview Hospital
a. Rule- further establishes dual intent by
requiring ’s to prove  acted intentionally.
b.  did not consent to student () operating on her.
 given permission to intubate  and lacerated
her esophagus.
c.  granted summary judgment b/c there was no
material fact to indicate she intended to harm the
.
i. Just causing a harmful or offensive
contact w/out intent is not a battery.
d. Dual Intent- No indication  intended to harm 
because she was acting under the directions of
her superior and was therefore not required to
obtain or inquire about the ’s consent.
iii. Transferred Intent
1. Extended Liability Principle- the  who commits an
intentional tort is liable for all damages caused not
merely those intended or foreseeable.
2. Stoshak v. East Baton Rouge Parish School
a. RULE- transferred intent holds that the actor
is still liable regardless if the harmful or
offensive contact was not intended for the
injured person.
b.  was attempting to break up a fight in school
and a punch intended for the other student struck
the  and he lost consciousness.
c. HYPO- you throw a beer bottle at a rock, miss
and it hits someone else. Battery?
i. NO. The battery was not intended for a
person and there is no intent to transfer.
c. Substantial Certainty
1. Garratt v. Dailey
a. RULE- one must act with intent or substantial
certainty to cause harmful or offensive
contact.
b.  removed chair while  was going to sit down.
’s liability could not be proven because there
was no evidence of intent. Case remanded to
determine if  acted with substantial certainty
that the  was attempting to sit down when he
removed the chair.
d. Requirements of Proof
i. A.R.B. v. Elkin
1. RULE- proving of sexual abuse allows for recovery
of damages—do not need to prove harm.
2. Children were sexually abused by their father who
admitted to it, however, they did not provide any
medical evidence showing emotional harm.
3. It is common knowledge that with sexual abuse comes
harm and therefore one is not required to show proof of
emotional injury.  proof that a battery or assault took
place is sufficient in order to award damages.
e. HYPO- you intend to squirt someone with a water gun and ’s skin has
a reaction to the water. Battery?
i. YES. Person squirting intended an offensive contact and should
be liable for resulting harm.
ii. Extended Liability- responsible for all damages not just those
that are foreseeable or intended.
3. Harmful or Offensive Contact
a. Offensive Contact- what a reasonable person would consider to be
offensive.
i. Exception- when people are informed and have agreed to a
different definition of offensiveness then the new definition
replaces reasonableness.
b. Snyder v. Turk
i. Rule- a person is subject to liability for battery when he acts
intending to cause a harmful or offensive contact and when
a harmful or offensive contact results.
ii.  became frustrated with , grabbed her shoulder and pulled her
face to the surgical opening.  argued he was not liable for
battery because he did not cause  harm by grabbing ’s
shoulder and pulling her face to the surgical opening.  liable
for battery because his contact was offensive.
iii. Defines what a battery is  an intentional, un-consented to
contact with another.
iv. Reasonable Minds Test- whether a reasonable person would
find the act offensive.
v. HYPO-  w/o getting frustrated or saying anything to ,
grabber her shoulder and pushed her face towards the wound.
Offensive contact?
1. YES. The  is not consenting to the  touching her.
c. Cohen v. Smith
i. Rule- if there is an agreement to a new definition of
offensive contact and that agreement is broken one is liable
for the offensive contact.
1. The agreement suspends the reasonable minds test.
ii.  required C-section. It was against her religion to be seen
naked by a male. Male nurse () assisted during procedure. 
liable for battery because his actions were offensive.
iii.  exceeded the ’s consent by assisting in the operating after
being made aware of the newly agreed upon definition of
offensiveness.
1.  argued the ’s consent was unreasonable.
a. Similar to Ashcraft which allows a patient to
place limits on their consent to an operation.
iv. HYPO- Suppose the male nurse had walked into the operating
room and saw the  naked but did not touch her. Battery?
1. NO. There was no contact! Proving of a harmful or
offensive contact is not enough to hold one liable for
battery if there is no contact.
d. HYPO- You have a germ phobia and don’t want anyone to touch you.
You board the T and someone pushes you out of the way. Battery?
i. NO. The person could not reasonably have known about the
germ phobia and therefore did not intend a harmful or offensive
contact.
e. HYPO- On the T with a backpack and someone behind you can’t get
by, grabs your backpack and pushes it out of the way. Battery?
i. YES. Law recognizes that personal integrity includes things that
are attached to a person. There was harmful/offensive contact
because the backpack was attached to the person even though
there was no direct contact with the person.
ii. Assault- intent to cause apprehension of an imminent battery and the
apprehension occurs.
1. Imminent- there will be no significant delay in the occurrence of a battery;
does not mean immediate.
2. Apprehension- there is an awareness of an imminent battery; does not mean
fear.
3. Requires dual intent.
4. Reasonable Minds Test- a reasonable person must believe that a battery will
occur.
5. Cullison v. Medley
a.  was confronted in his home by Sandy, her father, mother, brother &
brother-in-law. Father had a gun in his holster, mother kept her hands
in her pocket to imply she had a gun.  was verbally threatened and
believed he would be harmed.
6. HYPO- Suppose a person sneaks up behind someone and hits them over the
head with a baseball bat. Assault?
a. NO. The person did not know they were going to be hit so there could
not be any apprehension.  battery not assault.
iii. False Imprisonment- an intent to confine in a fixed space, confinement occurs,
and the person confined is aware of the confinement or harmed by it.
1. Notion of Confinement- if a reasonable person believes they are being
confined.
a. Movement must be limited and w/in a confined space.
2. Requires dual intent.
3. Interest Protected- people’s mobility.  the underlying goal of the tort of
false imprisonment.
4. McCann v. Wal-Mart
a. RULE- there does not have to be physical confinement.
b.  and her 2 sons were escorted to the rear of the store and guarded by a
security officer while waiting for the ―police.‖ confinement.  did
not try to leave b/c she was under the impression the police were
coming when in fact they were waiting for a store security official. 
awareness.
5. HYPO- Someone is locked in a ground floor room but it has a large sliding
door that’s not locked. Confinement?
a. YES. A reasonable person would believe they are being confined in the
room despite the door therefore their movement is limited.
6. HYPO- A person is on the 5th floor, door is locked but there is an open
window. Confinement?
a. YES. A reasonable person is not going to jump out the window to
escape. Their movement is limited.
7. HYPO- Someone’s passport is revoked and they must remain in the U.S.
Confinement?
a. NO. Confinement requires a limited range of motion. Having the entire
U.S. to roam is not a limited range of motion until their movement is
restricted.
8. HYPO- Two people are in a room and one is making an unbearable noise.
There are no windows. The noisemaking person walks out of the room
knowing the door locks automatically when it is closed. False imprisonment?
a. YES. The noisemaking person had the knowledge the door would lock
behind them and this shows intent. The other person is now confined
w/in the room and their movement is limited.
9. HYPO- Two people are in a room. There are no windows. One person leaves
closing the door not knowing it would lock behind them and the other person
will be locked in the room. False imprisonment?
a. NO. FI is a dual intent tort  the person who left the room did not
intend to confine the other person even though the door locked behind
them and the person was locked in the room.
iv. Torts to Property- involve an element of force or physical intrusion, which makes
them similar to battery, assault and false imprisonment.
1. Trespass to Land- intent to enter the land of another or to remain on the
land after being asked to leave and entry onto the land of another occurs.
a. Requires single intent- the intent does not need to be to trespass it is
enough that the  intended to enter the land.
i. Exception- if one unintentionally enters the land and is asked to
leave but refuses—their refusal is considered a trespass.
ii. The right to exclusive possession is an abstract idea and it is
harder to prove damage to the land so the mere fact that one is
on it is enough to prove intent.
b. Extended Liability-  is responsible for all damages to the land even if
he never intended harm or could foresee it.
c. Protected Interesti. That land is real property.
1. Real Property- land or the buildings on it.
ii. The rights of exclusive possession.
1. The right to exclusion.
d. HYPO- Kids are fooling around and carry another kid onto someone
else’s land and dump him into a pond. Is the kid a trespasser?
i. NO. There is no intent b/c the kid was taken onto the land
involuntarily therefore there was no intent to enter.
e. HYPO- There is a brook that is a dividing line of property.  crosses
the brook thinking they were still on their land. Trespass?
i. YES. Trespass is a single intent tort and the only intent needed
is to enter onto the land of another.
f. HYPO- There is a cat sitting on a fence between two people’s property
and the cat is wailing. Someone throws a shoe at the cat and misses and
the shoe lands on the other person’s property. Trespass?
i. YES. The person who threw the shoe knew that either it or the
cat would land on the other person’s property.
2. Conversion- intent to exercise substantial dominion over another’s chattel
and the substantial dominion occurs.
a. Chattel- any person or real property.
b. Substantial Dominion- taking over ownership of the property for a
reasonable period of time.
c. Requires single intent.
d. Damage must be serious.
i. Ex. Throw a cat off the roof and it breaks its neck.
e. Remedies
i. Damages awarded based on the value of the chattel at the time
of conversion.
1. The interference must be serious enough to justify
damages.
2. Consider:
a. Extent and duration of control.  substantial
dominion.
b. ’s intent to assert a right to property.
c. ’s good faith.
d. The harm done.
e. The expense of inconvenience caused.
ii. Equitable remedy of an injunction may be granted requiring the
property be returned.
f. HYPO- You steal someone’s car and crash it. Conversion?
i. YES. The person exercised substantial dominion over the car by
taking it and destroying it.
g. HYPO- A teacher takes a student’s tort book and throws it into the fire
thinking it was hers. Conversion?
i. YES. The teacher exercised substantial dominion over the book
because she took it and it was destroyed in the fire.
3. Trespass to Chattels- intent to interfere with another’s chattel and the
interference occurs and there is actual damage to the chattel or the other
person is disposed of the chattel.
a. Requires single intent.
b. Damages does not need to be serious.
i. Ex. Throw a cat off the roof and it breaks its ankle and hobbles
off.
c. School of Visual Arts v. Kuprewicz
i. Rule- one is liable for trespass to chattels only if the chattel
is harmed or the owner is deprived of its use for a
substantial period of time.
ii.  caused large volumes of unsolicited emails to go to the
school’s computers which resulted in depleted hard disk space,
slower processing power and other negative effects.
iii.  had a valid cause of action for trespass to chattels.
4. Difference Between Conversion and Trespass to Chattels
a. Conversion requires the exercise of substantial dominion and more
severe damages; trespass to chattels is the interference with someone
else’s property.
b. Defenses to Intentional Torts
i. Self-Defense, Arrest and Detention, Defense of Property and Consent are dependent
on plaintiff’s conduct.
ii. Necessity it not dependent on plaintiff’s conduct.
iii. Self-Defense- the privilege to use reasonable force to defend oneself against the
threat of imminent assault, battery or confinement.
1. The amount of force used to defend oneself cannot be excessive—it cannot be
greater than the force that is being used against you.
2. A reasonable person must conceive the other person’s actions as an act of
assault, battery or confinement.
a. Public Policy of Deterrence—so people cannot claim self-defense for
everything.
3. One cannot use self-defense to protect against an intentional tort to their
property.
4. 3 Standardsa. Good Faith Belief- if that person in good faith believes they are in
imminent danger.
i. What was the person thinking when they chose to defend
themselves.
1. Ex. Using a grenade to defend yourself against someone
coming at you with a shard of glass.
ii. Subjective inhibitions.
b. Reasonable Belief- if a reasonable person believes they are in
imminent danger.
c. Actual Fact- it is an actual fact that the person believes they are in
imminent danger.
d. HYPO- Steve is working for a television show that pulls "harmless"
pranks on random people. Filming one day, Steve enters a public park
and walks up to a total stranger named Frank. He pulls out a fake gun
and points it at Frank. Frank has no idea the gun is fake and that Steve
has no intention of attacking him. Frank, who happens to be legally
carrying his own gun for self-defense purposes, pulls out his gun and
shoots Steve.
i. Reasonable Belief- A reasonable person would believe that
Steve was committing an imminent battery against him, would
consider it an imminent threat, and would respond with a
proportionate amount of force. In this case, it appeared that
Steve had a gun and was about to use it on Frank, so Frank
defended himself with proportionate, reasonable force. The
reasonable belief test for self-defense should work for him.
ii. Actual Fact- In actual fact, Frank was in no danger. The gun
was fake. It was a television show. Steve was in fact not going
to attack Frank. And no "attack" in the sense of firing the gun
and inflicting physical harm occurred. Even if you considered
the drawing of a fake gun an attack in the sense that it was
assault and Frank was put in imminent apprehension of a
battery, according to the Actual Fact test, Frank's response
would not have been proportionate. Therefore, Frank would not
pass the actual-fact test for self-defense.
iv. Arrest and Detention
1. Peters v. Menard
a. Peters took a drill set out of the store and was approached by security
officers and asked to go with them to speak with the manager. Peters
ran off and drowned in a nearby river.
b. The security officers were privileged by the state statute to follow
Peters off the premises however the Restatement permits detention on
premises.
i. Both state statute and restatement have said there needs to be a
reasonable belief that the merchandise has been taken in order
to arrest or detain whether it be on or off the premises.
c. Actual Fact Standard- Harder for store owners to use b/c they are not
privileged to detain shoppers who they reasonably believed shoplifted.
v. Defense of Property- you can use reasonable force against a trespasser but not
force that can cause serious bodily harm or death.
1. Interest of the trespasser is protected because human life outweighs the
interests and rights of a property owner.
a. Exception- dwellings and warehouses are likely to be occupied and
there is a recognition of the need to protect the lives of the people
inside.
2. Katko v. Briney
a. Rule- use of reasonable force.
b. The s owned an unoccupied farm house and set up a shotgun trap
because people routinely trespassed on the land. The trap went off and
injured the .
3. Brown v. Martinez
a. Rule- use of reasonable force.
b. s were trespassing in ’s watermelon patch.  yelled to the children to
leave and shot his gun in the opposite direction of the s. Unfortunately
one of the s was injured.  found liable for battery.
c.  is liable b/c he used an action that was not equivalent to the actions of
the .
vi. Consent- what a reasonable person would believe to mean consent.
1. Expressed Consent-  explicitly gives consent.
2. Implied Consent- existence of consent may be implied from ’s conduct or
the circumstances.
3. Consent Procured by Fraud- consent induced by false information is not
valid even if the  voluntarily participated in the touching.
4. Duress- if  consents under duress the effectiveness of the consent will depend
on the immediacy and seriousness of the duress.
5. Robins v. Harris
a. Rule- difficult to prove consent when there is a discrepancy of
power between the parties.
b. The  was an inmate and the  was a guard who escorted the  to the
bathroom during a lockdown so she could perform fellatio.
c.  could not use consent as a defense b/c there was a power struggle
between him and the .
6. Exceeding the Scope of Consent
a. Ashcraft v. King
i. Rule- patient has a right to limit consent for an operation.
1. Conditional consent.
ii.  consented to an operation on the condition that any blood
being transfused was used from family-donated blood. The
blood was used from the general supply and the  contracted
AIDS.
iii.  exceeded the scope of consent.
iv. Similar to Cohen when  made s aware it was against her
religion to be seen by a male while the C-section was being
performed.
v. Public Policy of Justice
b. Kennedy v. Parrott
i. Rule- Public Policy of Administrative Expediency—
encourages self-reliant physicians to save money and time.
1.  did not commit an intentional tort of battery because
consent given to a major operation is given in a general
manner and is not specific, conditional or limited.
ii.  consented to an appendectomy. During operation  also
removed cists on her ovaries.  developed blood clots in her
legs due to the removal of the cists.
iii.  never limited her consent for the operation.
c. Doe v. Johnson
i. Rule- consent is not valid if it is induce by false information
even if  voluntarily partook in the touching.
ii.  engaged in sexual relations with  and contracted AIDS.
iii. Speaks to ’s substantial certainty of their actions—should 
have known that he had HIV.
vii. Necessity- the rights of the individual are not greater than the value of the benefit
to the public and the threat must be immediate.
a. Not dependent on plaintiff’s conduct.
2. Surocco v. Geary
a. Rule- public necessity allows one to use or destroy the property of
another if one reasonably believes it will preserve communal
property or life.
i. The value of human life over property  defense of property
values the trespasser.
b. ’s house was set fire by order of the  in order to stop the spreading of
a larger fire. Fire passed over the ’s house and continued burning. s
lost property they were unable to retrieve.  did not have to pay
damages.
3. Ploof v. Putnam
a. Rule- private necessity entry upon the land of another may be
justified by necessity when one sacrifices the personal property of
another to save his life or the lives of others.
b.  moored his boat to ’s dock during a storm.  ordered servant to
unmoor the boat.  and his family were injured and the boat was
destroyed.
c. Conversion-  exercised substantial dominion by unmooring the boat.
d. Battery- dock owner should have known the s would be injured by
unmooring the boat during a storm.  substantial certainty.
4. Vincent v. Lake Erie Transportation
a. Rule- when private necessity provides a valid defense to trespass
the would-be trespasser must pay compensatory relief for the
damage caused to the ’s property.
b. ’s boat after unloading cargo signaled for a tug but one could not be
found due to the storm. The ’s boat caused damage to the dock due to
the way its lines were kept.  had to pay damages.
c. Dissent- boat in lawful position and should not be liable for the
damages.
d. Unjust Enrichment-  protected his boat at the expense of the .
i.  was not privileged to keep his boat docked at the expense of
the .
e. Opposite of Van Camp-  held liable for the damages even though they
were not at fault and did what society would have wanted them to do.
i. If goods lost at sea prices would go up; boat could damage
others in the harbor.
ii. Strict liability.
II. Negligence- conduct that creates an unreasonable risk of harm.
a. Elements of a Prima Facie Case
i. Duty-  owes  a reasonable standard of care.
ii. Breach-  breaches his duty owed to the .
iii. Cause-in-fact- but for test.
iv. Proximate Cause- foreseeability of the harm.
v. Actual Damage
b. Negligence over Strict Liability
i. Encourages society to act b/c they aren’t worried about being held strictly liable for
injuries when they’re not at fault.
1. Anti-deterrence- negligence law will encourage action and progress w/in
society.
ii. Unfair to hold someone liable in the absence of fault.  Van Camp.
c. Negligence law is about the efficient allocation of risk.
d. Contributory Negligence- a  who is negligent and whose negligence contributes
proximately to their injuries is totally barred from recovery.
i. Do not cite to anymore, not current view.
e. Comparative Negligence- divides liability between  and  in proportion to their degrees of
fault.  is not barred from recovery but is reduced by a proportion equal to the ratio between
his own negligence and the total negligence contributing to the accident.
f. Duty-  owes  a reasonable standard of care.
i. Duty is owed when one is acting in a way to impose risks on another.
ii. Reasonable person exercises care only about the kinds of harm that are foreseeable.
iii. Stewart v. Motts
1. Rule-  is held to the standard of care of that of a reasonable person
under similar circumstances.
2.  assisted  in repairing a transmission and poured gasoline into the
carburetor.  started the car, it backfired and  was badly burned.
3. Reasonable care under the circumstances.
a. Reasonable people act with more care when undertaking a dangerous
activity.  this does not increase the reasonable care standard.
iv. Bjorndal v. Weitman
1. Rule- the standard of care is always that of a reasonable person.
2.  was driving looking for her father’s broken down car.  following behind her
and saw ’s father waving his hands.  looked around assuming there was an
emergency.  returned his attention to the road, slammed on his brakes
attempted to pass  on the left however she turned left as well and both
collided.
3. Jury instructions said one is not negligent if they find themselves in an
emergency situation it is ok to make choices that might not be the wisest
choice that would be made in other circumstances.
a. Supreme Court disagreed  if emergency instructions given they must
not condone unwise decisions b/c there was an emergency—need to
make a decision that is wise under the circumstances.
v. Creasy v. Rusk
1. Rule- the standard of care is always that of a reasonable person.
2.  has Alzheimer’s and  was trying to put him to bed and he was resisting. 
kicked  in her left knee and hip causing her lower back to pop.
3.  by taking that job should have been on guard for these types of
circumstances and therefore should have exercised a higher standard of care to
prevent injury to herself.
a. Forseeability of her injuries by working in an Alzheimer’s facility.
4. No sub-categorization for people with mental disabilities.
5. Public Policya. Removes incentive to fake a disability for a defense.
b. More administratively easy if one does not have to identify if someone
has a disability or not.
c. Deinstitutionalization- protects the rest of society.
i. Opposite of Shepard.
6. Strict Liability
vi. Chaffin v. Brame
1. Rule- one cannot be considered contributorily negligent when the
consequences of their actions are unforeseeable or not reasonably
assumed. Excused reason from stopping w/in lights.
2.  was driving at night when an approaching car refused to dim their headlights.
 was blinded by the lights and ran into the ’s car which was left unlit on the
side of the road.
3. The  had no reason to believe the ’s truck would be on the side of the road
and did everything possible to avoid the collision once he saw the truck.
a.  not contributorily negligent.
vii. Exceptions
1. Motor Vehicles
a. Marshall v. Southern Railway
i. Rule- operator of a motor vehicle must exercise ordinary
care. Rigid rule by court.
ii.  was driving at night when a car approached with bright
headlights.  ran into the railroad trestle supports.
iii. The duty was on the  to exercise due care and therefore the 
was not responsible for his injuries.
2. Physical Disabilities
a. Shepherd v. Gardner Wholesale
i. Rule- a person with a physical disability is required to
exercise the same degree of care as a reasonable person with
a similar disability would under the same circumstances.
ii.  has cataracts. She was walking down the sidewalk tripped
over raised concrete.
iii. Extra burden placed on the .  must take into account the
particularities of the many different reasonable persons.
iv. Public Policy Social Utility
1. Social concern for people who have a physical
disability.
2. Encourages people with disabilities to take part in
society knowing they will not be held largely at fault.
3. Special Knowledge
a. Hills v. Spark
i. Rule- a person is held to the same standard of care as that of
someone else with the same prior knowledge.
ii.  was an operator of earth-moving machinery. He was driving a
machine and had his sister ride on it. She fell off and the
machine ran over her.
iii.  liable b/c the risk was foreseeable due to his knowledge of the
activity.
4. Children
a. Robinson v. Lindsay
i. Rule- a child is held to the same standard of care that a
reasonably careful child of the same age, intelligence,
maturity, training and experience would exercise under the
same or similar circumstances.
ii.  lost full use of a thumb in a snowmobile accident in which the
 was the driver of.
iii. If a child is engaged in an activity likely to impose significant
risks to the rest of society the child should be held to a standard
of reasonable care just like a reasonable adult under similar
circumstances would.
iv. Subjective Standard- narrow sub-group of reasonable people.
1. Let’s children be children –don’t want to over deter
children by making them liable for everything.
b. Hudson-Connor v. Putney
i. Rule- a child is not held to an adult standard of care when
no adult skills were required.
ii. Child operating a golf cart hit the accelerator accidentally and
hit the  breaking her leg.  needed surgery.
iii. Golf carts are not generally always operated by adults.
viii. Limiting/Expanding Duty of Care
1. Landowner’s Duties to Trespassers, Licensees, Invitees & Children
a. Either no duty or the duty owed was considerably less than the
reasonable standard of care.
b. Trespassers- on the land w/o permission.
i. Gladon v. Greater Cleveland Regional Transit Auth.
1. Rule- a landowner owes a trespasser no duty except
to avoid injuring him by willful, wanton or reckless
conduct prior to discovering the trespasser.
2.  was attacked and ended up on ’s train tracks. An
approaching train began braking when they saw the ’s
shoes on the track but the train did not stop in time and
the  suffered serious injuries.
3. Discovered trespasser- there is a duty to use reasonable
care in carrying out the activities on the land—failure to
use reasonable care may be considered willful, wanton
or reckless injury.
c. Child Trespassers
i. Bennett v. Stanley
1. Rule- The Attractive Nuisance Doctrine holds a
landowner liable for harm to the child that was
caused by an artificial condition on the land if:
a. The landowner knows that the condition is
located where children are likely to trespass.
b. The landowner knows of the condition and
realizes or should realize that it imposes an
unreasonable risk of death or injury to
children.
c. The children do not discover the condition or
realize its dangerousness.
d. The utility of maintaining the condition and
the burden of eliminating it do not outweigh
the risk it poses to children.
e. The landowner fails to exercise reasonable
care to eliminate the danger or protect
children from it.
2. The ’s neighbors allowed their pool to naturally turn
into a pond. The ’s son fell into the pool and his mother
attempted to save him but both drowned.
3. The doctrine applies only to children of grade school age
and rarely to teenagers.
d. Licensees- those who are on the land w/ owner’s permission but for
limited purpose.
i. Social guests.
ii. Rule- a landowner owes a licensee no duty except to avoid
injuring him by willful, wanton or reckless conduct and to
warn them of dangerous conditions not obvious to the
licensee.
iii. Landowner may be liable to a licensee injured by a condition on
the property where the land possessor knows of a dangerous
condition on the property, fails to make the condition safe or to
warn the licensee about the risk involved, and the licensee does
not know about the danger nor would be expected to discover
the dangerous condition.
iv. Discovered Licensee- landowner owes a duty of reasonable
care in carrying out the activities on the land.
e. Invitee- any person on the property in part for the pecuniary
benefit of the owner or who is on the land open to the public.
i. Person hired to take down trees, hospice workers, customers of
a restaurant, mall etc.
ii. Rule- a landowner owes an invitee a duty to use reasonable
care.
f. Open and Obvious Danger
i. O’Sullican v. Shaw
1. Rule- when a danger is obvious to the reasonable
person a landowner may reasonably assume the
visitor has knowledge of it and is not required to
warn them of the dangers.  no duty rule.
2. The  dived into the shallow end of the ’s pool and
suffered injuries to his neck and back.
3.  did not owe a duty b/c the type of injury was
foreseeable under the circumstances.
4.  did not breach a duty.  Stinnett v. Buchelle
g. Adopting a Reasonable Care Standard for Landowners
i. Scurti v. City of NY
1. Rule- landowner owes a duty of reasonable care to
all persons on their land—it no longer matters if they
are a trespasser or a licensee.
2.  was electrocuted in a RR yard after crawling through a
hole in the fence.
h. The Firefighter’s Rule
i. Has been applied outside the land as well as on it.
ii. No longer limited to firefighters.
iii. Does not apply to private individuals who may attempt to assist
during a fire  rescue doctrine says it is not contributory
negligence or assumption of the risk to assist in a physical
emergency.
iv. Only bars recovery for injuries caused by the ’s negligence
that created the risk.
v. Minnich v. Med-Waste Inc.
1. Rule- precludes a firefighter from recovering against
a  whose negligence caused the firefighter’s injury
while on the job.  no duty rule.
2.  was employed by Med U as a public safety officer and
helped load medical waster onto a truck owned by the .
 notice the truck began rolling forwards, jumped inside
and stopped it but suffered serious injuries.
i. Recreational Use
i. A landowner does not owe a duty of care to keep the premises
safe for recreational use or to give any warning of dangerous
conditions/structures/activities, which people enter onto to his
land for such purposes.
ii. Landowners should be given immunity from liability for
negligence in order to encourage them to permit the public to
use their land for recreation.
2. Medical Malpractice
a. What is the duty that doctors owe to patients?
i. Not tested by cost benefit analysis.
ii. The duty of care is that of another doctor in the same field.
b. Crisis
i. Medical malpractice claims do not raise costs, do not usually
result in heavy damages or punitive awards and do not seem to
be the cause of the crisis.
ii. The problems seem to be access to the system, costs and errors.
iii. Medical malpractice claims keep drs from admitting they made
a mistake b/c if they do there is proof of a cause of action
against them.
c. Walski v. Tiesenga
i. Rule- the standard of care is determined by the care
customarily provided by other physicians under similar
circumstances.
ii. s operated on the  to remove their thyroid. There was a
known risk of damaging the nerve and a solution to avoid it.
The s cut the nerve and the ’s vocal cords were paralyzed.
iii. Necessary to use expert testimony to establish the medical
standard of care.
d. Vergara v. Doan
i. Rule- the standard of care is the degree of care, skill, and
proficiency which is commonly exercised by ordinarily
careful, skillful, and prudent physicians in the same class.
ii. The ’s son was born and the ’s claim the doctor caused their
baby severe and permanent injuries.
e. Hirpa v. IHC Hospitals
i. Rule- a person who in good faith renders emergency care
shall not be liable for damages resulting from their actions.
 Good Samaritan Statute
ii.  became unresponsive during labor. The  responded
unfortunately the  died.
iii. The statute is intended to encourage doctors to act w/o fear of
liability.
f. Specialists are held to the standard of care of other doctors in their
specialty.
g. Nurses are held to the standard of care of other nurses.
h. Hospitals are held to national standards of care fixed by the Joint
Commission on Accreditation of Hospitals.
i. Pharmacists owe not duty to their clients to warn of side effects, an
excessive dosage prescribed by the physician or that the drug is
counter-indicated.
j. Non-medical practitioners are held to the standard of care professed in
their schools not to medical standards.
k. Res Ipsa
i. The basis for medical res ipsa is that as a matter of common
knowledge the ’s injury usually results from negligence.
ii. States v. Lourdes Hospital
1. Rule- expert testimony may be used to assist the jury
in determining if the incident that occurred usually
takes place in the absence of negligence.
2.  underwent an operation and claimed she was
negligently anesthetized causing her injuries.
iii. Ybarra v. Spangard
1. Rule- where a π receives an unusual injury while
unconscious and in the course of medical treatment,
all those s who had any control over his body or the
instrumentalities which might have caused the injury
may properly be called upon to meet the inference of
negligence by giving an explanation of their conduct.
2.  underwent surgery and was unconscious. When he
woke up he had pain in his arm and shoulder which he
never had before undergoing surgery.
3. Possible only 1  breached a duty and the others used
due care.
a. Different from Summers b/c both s breached a
duty.
4. All s can be held liable in the context of medical
malpractice.
a. Encourages those who did not breach a duty to
come forth and say who did.
b. Similar to Collins
l. Informed Consent
i. A person has the right to determine what will be done to their
body and surgeon who performs an operation w/o patient’s
permission commits an assault and is liable for damages.
ii. Moves it out of battery and into negligence.
iii. Harnish v. Children’s Hospital
1. Rule- a doctor owes to a patient the duty to disclose
in a reasonable manner all significant medical info
that the physician possesses or reasonably should
possess that is material to an intelligent decision by
the patient whether to undergo a proposed
procedure.
2.  underwent surgery and was not informed of the risks
of the procedure and she suffered loss of tongue
function.
iv.
v.
vi.
vii.
3. ―all significant medical info that is material‖—any info
that would influence patient’s decision.
a. HYPO- Suppose the dr knew the patient was an
opera singer.
i. The risk of loss of tongue function would
be material b/c of patient’s occupation.
4. ―that the dr possesses or reasonably should possess‖
a. knowledge of an average dr in the same field 
use expert testimony to prove
5. Patient based standard.
6. Encourages patient autonomy.
7. Causation- the  must show that if they had the proper
info they would have acted differently and that a
reasonable person getting this info would have foregone
the procedure.  objective test for informed consent
causation.
Woolley v. Henderson
1. Rule- the standard of disclosure is that of a
reasonable medical practitioner.
2.  operated on ’s back and the  suffered injuries
similar to the risks of such a procedure but the  was not
made aware of the risks prior to the surgery.
3. Recent trend is moving in the direction of the Harnish
rule.
Wlosinski v. Cohn
1. Rule- a dr does not need to disclose their
success/failure rate to a patient b/c they are not risks
of the procedure.
2.  sought out  dr for kidney transplant surgery. The last
5 out of 7 surgeries performed by the  had failed. The
surgery was unsuccessful and the  died.
Arato v. Avedon
1. Rule- a dr does not owe a duty to disclose statistical
life expectancy info to the patient b/c those are not
risks of the procedure.
2.  underwent surgery for his cancer.  indicated to the 
he wanted to know the truth about his chances. The 
did not tell him the truth and the  died w/o his affairs in
order.
Truman v. Thomas
1. Rule- a dr has a duty to disclose of the risks of
refusing to undergo a procedure, if the patient
indicates that is her intention.
2.  was repeatedly advised by the  to get a pap smear but
never warned of the risks of not getting one. The  died
of cervical cancer.
3. Immunities
a. Similar to limited duty rules.
b. Family Members
i. Spouse v. Spouse
1. Generally permitted but usually only in insurance cases.
2. Liability usually imposed for intentional torts.
ii. Child v. Parent
1. Usually not permitted.
2. Terminated when child becomes an adult or is
emancipated.
3. Liability usually imposed for intentional torts.
4. Goller v. White
a. Rule- parental immunity should be done away
with except when:
i. When the negligent acts involve
parental authority over the child.
ii. When the negligent acts involve
parental discretion over the child
(food, water, clothes, housing, medical
etc.)
b.  was a foster child in ’s home.  allowed  to
ride on his tractor w/o warning him of the risks
and the  was injured.
c. The rule bars most children’s claims of negligent
parental supervision.
5. Commerce Bank v. Augsburger
a. Rule- parental immunity applies to the ’s
negligent acts.
b. s confined , a foster child, to a shelf in a closet
and did not supervise her.  died.
6. Hoppe v. Hoppe
a. Rule- parental immunity does not apply when
the duty owed by the parent is owed to the
public at large and not just the child.
b.  while in  father’s care was given a hammer
and an explosive nail cartridge.  hit the
cartridge w/ the hammer and was injured.
iii. Charities
1. Traditional Rule- charities are not liable in tort.
2. Restatement 2nd- there is no charitable immunity
a. Most states have abolished it by statute or
judicial decision.
iv. Government
1. Federal and state governments immune from tort
actions—extends to all their agencies unless statutes
prohibit it.
a. Federal Torts Claims Act
i. Waived immunity for tort suits.
ii. Mostly applies to negligent acts—
situations where a private person could
also be found liable.
iii. Waiver does not apply to many
intentional/strict liability torts.
iv. Waiver does not apply to injuries
sustained in military service.
v. Waiver does not apply to discretional
functions. Ex. decision to build a dam.
vi. To prevent second guessing of
legislative/administrative decisions for
social, economic and political decisions.
vii. The law followed is state not federal.
viii. US v. Olson
ix. Rule- FTCA allows tort actions against
US where if the US were a private
person they would be held liable.
x. s were 2 mine workers injured b/c
federal mine inspectors were negligent w.
inspections.
xi. Feres v. US
xii. Rule- FTCA provides immunity for
injuries sustained in military service.
xiii. Cases were consolidated b/c all 3 s were
injured in some way while serving in US
military.
2. Municipalities- not immune.
4. Nonfeasance
a. A person does not owe a duty to act in order to protect another.
i. Exceptions:
1. Restatement 3rd- if  knows or has reason to know his
actions caused harm to the  then he has a duty to act
and prevent further harm.
2. Restatement 2nd- if  created unreasonable risk of harm
they owe a duty of reasonable care to prevent harm from
occurring.
b. HYPO- Dawson saw a man approach a woman outside his window
with a knife and grab her purse. The man beat the woman to death
while Dawson watched. Woman’s family brought a wrongful death
action against Dawson. Dawson’s motion to dismiss the claim was
granted.
i.  did not owe a duty b/c he was not acting.
ii. Even if you can save someone w/ no risk to yourself the law
does not require you to do so.
c. Yania v. Bigan
i. Rule- there is no duty to rescue someone in peril unless the
 was legally responsible for placing the  in the perilous
position.
ii.  cut trenches in his property for mining coal.  entered ’s
property to assisting him in pumping the mines.  fell in and
drowned.
d. Wakulich v. Mraz
i. Rule- one who voluntarily renders aid to another must do so
w/ due care and is liable for injuries caused in failing to do
so.
ii.  lost consciousness from drinking too much and s provided
aid by brining her to a couch and later on to a friend’s house.
The  was taken to the hospital but died.
iii. Restatement 3rd- when  discontinues aid,  is liable if by
acting unreasonably they leave the  in a worse off position
than before they rendered aid.
iv. Restatement 3rd- a  who renders aid and knows or should
know it will reduce the risk of harm to the  has a duty to use
reasonable care in providing the aid if failure to do so would
increase harm to the  beyond what existed before giving aid.
v. Restatement 3rd- 7 relationships requiring  to use reasonable
care for ’s safety:
1. Carrier-passenger.
2. Innkeeper-guest.
3. Landowner-lawful entrant.
4. Employer-employee—when employee acting w/in scope
of employment.
5. School-student.
6. Landlord-tenant.
7. Custodian-person in custody.
e. Podias v. Mairs.
i. Rule- a  has a duty to act when their conduct places the 
in peril.
ii.  drove drunk and hit the  while on his motorcycle. The driver
and passenger left the scene w/o assisting the . The  was later
run over by another car and died.
iii. The knowledge of peril, death or bodily harm to another which
a  might avoid at little cost to themselves creates a sufficient
relationship to impose a duty of action.
1. Even where the danger was created through no fault of
the .
iv. The Court is trying to find some reason to hold the 2 
passengers liable even though they weren’t driving the car.
f. DeShaney v. Winnebago County Social Services
i. Rule- a public entity must have custody of another in order
for there to be a duty to act.
ii.  made regular visits to  and observed suspicious injuries but
took no action to remove the  from father’s care. Father beat
the  into a retarded state.
5. Duty to Protect from Third Persons
a. Most relationships do not owe a duty to protect from third parties
i. Innkeepers-invitee.
ii. Landlords-invitee.
iii. Common carriers-passengers.
iv. Employer-employee.
b. ’s Relationship w/ 
i. Marquay v. Eno
1. Rule- employees/employers acting in loco parentis
have a duty to protect from a third party.
2. 3 female s alleged teachers/coach sexually abused them
and that other teachers and employees knew or should
have been aware of the abuse.
3. When school officials know of abuse by
teachers/coaches and do nothing they are in violation of
their duty of care.
ii. Posecai v. WalMart
1. Rule- Balancing Test—balance the foreseeability of
the harm against the burden of imposing a duty to
protect against the criminal acts of third persons.
2.  returned to her car in ’s parking lot. A man hiding
under it grabbed her ankle and pointed a gun and robbed
her of her jewels. The store was adjacent to a high crime
area.
3. Basis for determining foreseeability in premises liability
cases is if there were previous crimes on the premises or
nearby.
iii. Landlords have a duty to maintain common areas in a
reasonably safe manner for tenants.
c. ’s Relationship w/ Dangerous Person
i. Dudley v. Offender Aid & Restoration of Richmond
1. Rule-  owes duty of due care to people he knows are
at risk and to those whose risk is foreseeable when
there is a special relationship w/  or 3rd party.
2. Spencer a violent criminal was released to live in ’s
halfway house. One night be broke into the ’s
apartment beat, raped and strangled her to death.
3. Adds aspect of foreseeability to the general rule where
duty is imposed on someone to protect someone else
from the dangers of a violent third party when the risk of
injury is foreseeable.
ii. Tarasoff v. Regents of UCLA
1. Rule- a therapist owes a duty not only to their
patients but also to any foreseeable  who are at risk
of harm from their patient.
2. Poddar killed the  and confessed his intentions to his
therapist who and the  was never warned of her risk of
harm.
3. The duty to warn exists only when the patient
communicates a threat to an identifiable person.
iii. Brigance v. Velvet Dove Restraurant
1. Rule- One who sells intoxicating beverages for on the
premises consumption has a duty to exercise
reasonable care not to sell liquor to a noticeably
intoxicated person.
2.  served alcohol to groups of minor who drove a car
intoxicated and collided w/ the  causing his injuries.
6. Negligent Infliction of Emotional Distress
a. If someone commits a physical injury tort they are also liable for any
emotional injury that results.
i. HYPO- Someone drops a house on a person and injures them
and from then on they are afraid to go outside for fear of having
a house dropped on them
1. That fear counts as emotional distress.
b. Grube v. Union Pacific RR
i. Rule- The essential elements for recovery under the zone of
danger test are that π must be within the zone of danger and
suffer imminent apprehension of physical harm, which
causes or contributes to the emotional injury.
ii.  was operating train when he saw a car stuck on the tracks and
could not stop the train in time.  suffered emotional distress
and became physically ill.
iii.  did not establish he was in fear of harm at any time.
c. Dillon v. Legg
i. Rule- a bystander outside of the zone of danger may recover
for emotional distress if:
1.  is closely related to the victim.
2.  is present at the scene of the injury and knows it is
causing harm to the victim.
3.  suffers emotional distress.
ii. A mother observed her daughter get hit by a car causing her
death.
iii. Broad rule of factors where you can have a little of one and
more of another many courts moving towards rule in Thing
d. Thing v. La Chusa
i. Rule- a bystander outside the zone of danger may recover
for emotional distress if:
1.  is closely related to the victim.
2.  is present at the scene of the injury and aware it is
causing harm to the victim.
3.  suffers emotional distress as a result.
ii.  was informed her son was hit by a car and rushed to the scene.
iii. Turned the factors from Dillon into a rule and required all 3 be
met.
e. Burgess v. Superior Court
i. Rule- a direct victim ( in a preexisting relationship w/ )
may recover for emotional distress.
ii. Dr noticed while  was given birth the cord was wrapped
around the baby’s neck and decided to do a c-section. The baby
suffered permanent brain damage.
iii. Direct victim’s case based on a breach of duty assumed or
imposed on the .
iv. Relationships are important in determining the duty owed.
ix. Negligence per se- allows substitution of a criminal statute for standard of care
and violation of the statute is negligent.
1. Doctrine that describes standard of care.
2. No cause of action necessary.
3. Unexcused violation of statute determines the actor’s negligence.
4. Statute that does not create a duty for an identifiable class of people cannot
have per se effect.
5. When applied by court, statue supplants common law standard of care and
violation of the statute establishes breach of duty.
6. Does not apply to children.
7. Martin v. Herzog
a. Rule- when one violates a criminal statute they are considered
negligent.
b.  driving at night without lights on his buggy, hit another buggy and
killed the driver. Illegal under statute to drive w/o lights on a buggy.
c. Contributory Negligence-  was negligent b/c they did not have lights
on their buggy.
d. Comparative Negligence- compare ’s negligence to ’s negligence
and allocate damages to each.
8. O’Guin v. Bingham County
a. Rule- 4 Requirements of Negligence Per Se:
i. Statute must clearly define the standard of conduct.
ii. Statute must have intended to prevent the type of harm.
iii.  must be a member of the class the statute intended to
protect.
iv. Violation of statute must have been the proximate cause.
b.  trespassed onto landfill on a day it was closed and no employees were
there and was killed. Statute requires the  to fence or block public
access to the landfill when an attendant is not on duty in order to
protect human health.  violated statute therefore negligent.
c. Dissent- statue not intended to prevent trespassers from injuring
themselves—intended to prevent trespassers from dumping materials
that may be harmful to health.
i. Majority interprets health to include death.
ii. Dissent interprets health to not include death.
d. Statue replaces common law standard of care which is to use
reasonable care.
9. Impson v. Structural Metals
a. Rule- Restatement of Torts—excused violation of state statute:
i. Reasonable b/c of actor’s childhood, physical disability or
physical incapacitation.
ii. Actor didn’t know nor should have known for compliance.
iii. Actor exercises reasonable care in attempting to comply.
iv. Emergency not due to actor’s misconduct.
v. Compliance would involve a greater risk of harm to the
actor or others.
b.  attempted to pass  w/in 100 ft. of an intersection and struck the .
Statute prohibits passing w/in 100 ft. of an intersection.
c. ’s Excuses:
i. Forgot the intersection was there.
ii. Sign marking the intersection was small.
iii. There were no lines to indicate no passing.
iv.  watching ’s car ahead of him which was off to the right.
d.  negligent b/c his actions were not excusable.
g. Breach of Duty-  owes  reasonable care but breaches it.
i. Pipher v. Parsell
1. Rule- actions must be foreseeable or preventable in order for there to be a
breach of duty.
2.  and  driving in ’s car. Third passenger grabs the wheel and  does
nothing. Third passenger grabs the wheel again and the car hits a tree injuring
the .
3. If actions are foreseeable and preventable and one fails to prevent those actions
it is a breach of duty.
ii. Indiana Consolidated Insurance v. Mathew
1. Rule- no breach of duty when harm threatened is that of serious physical
injury.
2.  was filling lawn mower w/ gas exercising due care—pulled the mower away
from the garage wall, used a funnel, filled it ¾ of the way, went home for 20
min. to let any spilled gas evaporate— started mower and noticed a flame. 
left to call 911 and when re returned the garage was on fire.
3.  not comparatively negligent b/c human life is valued over property.
iii.
iv.
v.
vi.
a. Serious physical injury could have been sustained if the  attempted to
move the mower out of the garage while the flames were lit.
4. Sudden Emergency Doctrine- requires that when one is faced with an
emergency they must do what a reasonable person would under like
circumstances.
Pipher v. Parsell and Indiana Consolidated v. Mathew
1. Level of forseeability.
2. Alternatives.
3. Risk to others and self—how serious or grave.
4. Precautions to avoid the risk.
5. Similar to Judge Leonard Hand’s BPL formula.
Stinnett v. Buchele
1. Rule- the assumption that the employer has a better more comprehensive
knowledge than the employee ceases when the employee’s means of
knowledge of the dangers is equal or greater to that of the employer.
2. , a doctor, hired the  to repair the roof on one of his barns.  has previously
worked on roofs before.  did not supply  with safety equipment and he fell
off the roof and was seriously injured.
3.  did not breach his duty and was not negligent b/c ’s prior knowledge of the
possible dangers was greater than the ’s.
4. Not the ’s duty to supply  with safety equipment b/c a reasonable person
would not expect to be responsible for that b/c the  had prior knowledge.
Bernier v. Boston Edison
1. Rule- when considering breach of duty it’s important to consider the
forseeability of the accident and the cost of prevention/alternatives.
2.  was injured by a pole that fell on him due to an auto accident. The 
manufactured the pole.
3. The incident was foreseeable due to the large number of poles that have been
knocked down in the past.
4. Alternative of stronger concrete.
a. Risk to drivers increase if use stronger concrete—Risk to pedestrians
increase if don’t use stronger concrete.  polycentric problem.
i. Risk more serious for pedestrians b/c they do not have a vehicle
to protect them.
5. Alternative of hoops and spirals.
a. Public Policy argument of Social Utility- increased price of
electricity.
United States v. Carroll Towing
1. Rule- 3 Principles to Determine Breach of Duty
a. Probability—forseeability of risk.
b. Gravity of loss—seriousness of injury
c. Burden of precautions—cost of alternative
2. Cargo owner is suing barge owner b/c bargee was not on board claiming
accident could have been prevented b/c the bargee could have used the pumps
to save the barge and cargo.
3. Formula:
a. If the Burden>Probability x Injury— not guilty of breaching their
duty.
b. If the Burden<Probability x Injury— is guilty of breaching their duty
and is negligent.
vii. Proving Liability
1. Several Liability/Comparative Fault
a. Deals with ’s negligence.
b. No tortfeasor is liable for more than their proportionate share.
2. Joint and Several Liability-when more than one person is a proximate
cause of ’s harm and the harm is indivisible each  may be liable for the
entire harm.
a. Relationship between s and their degree of negligence.
b. Either  is liable for the full amount of damages.
c.  can choose which  they want to sue—does not have to sue both.
d. One tortfeasor could be responsible for all damages but they can collect
contribution from the other tortfeasor.
A
80%
$2,000
1. Plaintiff $10,000
damages
B
20%
3. Santiago v. First Student
a. Rule- must have a theory to prove negligence.
b.  was riding a school bus and claims it collided with another car
causing her to hit her face against the seat.  was unable to offer any
details about the accident and could not remember the collision occur.
c. ’s case was missing theory.
d. The accusation that an accident happened is not enough to hold one
liable for the supposed accident.
4. Thoma v. Cracker Barrel
a. Rule- 3 Ways to Prove Slip and Fall:
i. The  must show that the premises owner either created a
dangerous condition.
ii. Premise owner had actual or constructive knowledge of a
dangerous condition.
1. Can be established by circumstantial evidence.
iii. The operation on the premises makes it foreseeable that
such an accident could happen.
b.  slipped and fell on a puddle of liquid in a common area near the
entrance to the kitchen. Witness saw waitresses carry beverage trays
but did not see any of them spill anything.
c. Similar to Stinnett—once caution sign is put out the  is absolved of
some liability and it is now placed on the .
5. Wal-Mart v. Wright
a. Rule- storewide manual cannot be introduced to show a standard
of care.
b.  slipped and fell on a puddle of water in the outdoor garden area. Trial
court admitted store manual to allow jury to determine if  negligent
based on a violation of any rule, policy, practice etc.
c. Supreme court ruled the store manual could not be introduced to show
a standard of care.
i. Store manual may pose a higher standard of care than the
reasonable standard but the reasoning for the higher standard is
unclear.
d. Figure out what level of care is reasonable as to safety.
i. Don’t know what the store manual’s aims are.
ii. The store manual is only relatable to Wal-Mart
6. Duncan v. Corbetta
a. Rule- evidence of a custom may be used to show reasonableness.
b.  was injured when top step of an exterior wooden staircase collapsed.
It was custom to use pressure-treated wood for outdoor staircases. 
used nonpressure-treated wood which was permissible under building
code.
i. This custom should have been used to show reasonableness.
c. Departure from custom is evidence of negligence but a finding of
negligence is not required.
d. What custom proves:
i. The harm was foreseeable therefore the activity was risky.
ii. The  knew or should have known of the risk.
iii. The risk was unreasonable in the general opinion of the
community.
e. Difference between Duncan and Wal-Mart
i. Duncan-the custom is general practice.
ii. Wal-Mart- store manual belongs only to Wal-Mart it is not a
general custom.
7. The TJ Hooper
a. Rule- when there is no custom it does not mean one acts as a
reasonable person.
i. Shows us what happens when one tries to use a custom
argument.
b. A barge was lost at sea b/c the tug boats were not equipped with
receiving radios to alert them of the storm.
c. Is there a custom that should tell us something about what the
reasonable person should have done under the circumstances?
i. Although it was not custom for an entire industry to have radios
on tugs they still should be required.
viii. Res Ipsa
1. 2 Elements:
a. The accident ordinarily does not happen in the absence of
negligence.
b. The  had exclusive control—there was no negligence on behalf of
the  or a third party that would have led to the accident.
2. A doctrine that allows the jury to draw an inference of negligence from the
mere happening of an accident.
a. The mere happening of an accident could imply that someone has not
acted reasonably.
3. Creates possibility of holding s liable w/o fault.  strict liability.
4. Use res ipsa when  does not have theory to prove ’s negligence.
5. Byrne v. Boadle
a. Rule- the mere happening of an accident is evidence of negligence.
b.  was walking down the street and a barrel of flour hit him on the
heading knocking him un conscious. The ’s shop was adjacent and the
barrel appeared to have fallen or been dropped from the shop.
c. Case should go to the jury to make an inference of negligence b/c this
is a type of accident that doesn’t happen in the absence of negligence.
d. It is up to the  to prove they weren’t negligent
6. Koch v. Norris Public Power District
a. Rule- res ipsa is applied in the absence of a substantial or probable
explanation.
b. ’s power line broke and started a fire causing damage to ’s property.
c. Element #1- the accident does not happen w/out negligence.
7. Cosgrove v. Commonwealth Edison Co.
a. Rule- res ipsa not applicable when outside forces rather than
negligence may have caused the accident.
b. On a stormy night a power line fell. There was a gas leak which ignited
the sparks from the downed power line creating a fire that damaged ’s
property.
c.  cannot claim res ipsa against the power company b/c other forces
besides negligence led to the downed power line.
d.  can claim res ipsa against gas company b/c gas leaks do not
ordinarily occur w/o negligence.
i. Element #1- accident does not happen w/out negligence.
8. Warren v. Jeffries
a. Rule- res ipsa is not applicable when  has an idea as to what
possibly caused the accident.
b.  parked his car in the driveway. 5 kids piled into the back seat, they
heard a clicking noise and the car began to roll backwards towards a
ditch. One of the older children yelled to jump out. The  jumped out
but fell and was run over and killed by the car.
c. Probability that the accident was due to negligence was reduced b/c 
did not use the evidence available  did not have car inspected after
the accident.
9. Giles v. City of New Haven
a. Rule- the ’s use of the instrument does not bar the doctrine of res
ipsa.
b.  was operating an elevator when the chain broke which caused the cab
to shake and the  to hit her head and shoulders. She directed the
elevator to the nearest floor and jumped out sustaining more injuries. 
had exclusive contract with building to maintain and inspect the
elevator.
c. Exclusive control is a way of proving the ’s responsibility.
i. The  had a long standing contract w/ the building to maintain
the elevator.
10. Collins v. Superior Air-Ground Ambulance Service
a. Rule- if more than one person has exclusive control a case can be
brought against both under the doctrine of res ipsa.
b.  was transported to and from rehab center. When she arrived home her
daughter noticed she was suffering and it was determined she was
dehydrated and sustained a broken leg either from transport or her stay
at the rehab.
c. The ’s case can go to the jury under res ipsa b/c only the s know
what happened.  jury can hold both liable.
d. In a case of serial or consecutive control the occurrence of injury does
not usually show which  was negligent or that both were.
h. Causation
i. Cause in Fact- when the cause and effect chain of events leading to ’s injuries
includes ’s tortuous conduct.
1. The injury would not have occurred but for the ’s conduct.
2. Issue 1- Did the ’s breach of duty contribute directly to the ’s damages?
a. HYPO- a tanning facility in which the ’s employees mistakenly turn
up the dial too far and someone one gets burned. Next day  discovers
she has liver cancer.
i. Have to show that liver cancer is causable by too much tanning
in order to hold  liable.
ii. Just b/c caner appeared simultaneously does not mean it was
actually caused in some scientific way by the tanning.
3. Issue 2- If multiple s breach of duty contributed to the ’s damages can they
all be held liable? How do you allocate the damages?
a. Use the doctrine of joint and several liability
b. HYPO- s on bike and they collide with  who suffers broken leg and
ruptured spleen.
i. Maybe you can identify which cyclist caused the broken leg.
Spleen may be harder to identify.
4. But-For Test
a. Hale v. Ostrow
i. Rule- the plaintiff must establish that but for the
defendant’s conduct their injuries would not have occurred.
ii. ’s bushes had overgrown on the sidewalk making it
impassable. The  thus had to step into the road.  tripped on
the crumbled sidewalk as she was checking for traffic.
iii. ’s breach of duty directly contributed to the ’s damages.
b. Salinetro v. Nystrom
i. Rule- the plaintiff must establish that but for the
defendant’s conduct their injuries would not have occurred.
ii.  was in a car accident and the  dr. treated her by taking x-rays
of her back. The  was unaware she was pregnant at the time
and had to have an abortion.
iii. ’s duty was not to determine if the  was pregnant before the
x-rays were taken.
1. no breach of duty.
c. Two Persons Causing Separate or Divisible Injuries
i. As long as the two injuries are separate liability can be
apportioned by causation.  each tortfeasor will be liable only
for the harms they caused and no more.
d. Two Persons Causing a Single Indivisible Injury
i. HYPO- A negligently runs into a horse and leaves it on the
highway. B negligently runs into the carcass injuring his
passenger.
1. But-for A’s negligence the accident would not have
occurred.
2. But-for B’s negligence the second collision would not
have occurred b/c he would have stopped or taken
evasive action to avoid hitting it.
3. Both A and B are but-for causes of the passenger’s
injury and both are subject to liability.
ii. Can’t apportion liability by causation.
1. Must use fault apportionment
a. Joint and several liability with contribution or
proportionate fault liability.
e. Landers v. East Texas Salt Water Disposal Co.
i. Rule- when two or more wrongdoers commit an indivisible
tortuous act all the wrong doers will be held jointly and
severally liable for the entire damages.
1. Injured party may seek judgment against all or any
one of the wrongdoers.
ii.  owned a small lake stocked with fish. East Texas’ pipes broke
and flooded ’s pond w/ salt water killing his fish. Sun Oil’s
pipes burst and also flooded the ’s pond with salt water and
oil.
iii. Court said it does not matter whether  can prove causal
connection.
iv. Joint and several liability takes us away from causation and
focuses on responsibility.
1. Both East Texas and Sun Oil breached a duty  Both
can be held liable for the full amount of damages
2. In order to invoke the doctrine of joint and several
liability the  will have to show that the amount of water
that came from both companies was sufficient to kill all
the fish.
f. Anderson v. Minneapolis, St. Paul and St. Marie RR
i. Rule- the substantial factor test requires that the ’s actions
contributed to the ’s injuries in order to prove cause in
fact.
1. Similar to the rule in Right where there must be actual
damage in order to prove a negligence claim.
2. The test is used when there are multiple s.
ii. ’s engine set fire in August. ’s property was burned in
October and argued that fire in August smoldered until it burned
the ’s property.  offered proof there were other fires
sweeping the area and one of these might have burned the ’s
property.
iii.  was still responsible for the ’s damages even though a man
made fire combined with a natural fire and the natural fire
would have damaged the ’s property alone  goes a step
further than joint and several liability.
iv. HYPO- a non-negligent fire burned a house first and the ’s
fire burned it a week later after everything was destroyed.
1.  not liable b/c there is not proof of damages.
g. Increased Risk Situations
i. Anderson and Landers
ii. HYPO- a swimming pool has a fence around it and the owner
of the pool forgets to lock the fence. Child opens the door,
walks in and drowns. Is the homeowner’s breach of duty in
failing to lock the fence the cause of the child’s injury?
1. Difficult to show causation—if the risk created by
breach of duty is exactly the type of injury that happens
the  can get to a jury and they can infer causation. 
O’Guin.
iii. HYPO-  1 is driving down the road and hits a large animal
killing it and leaves it on the road. This doesn’t injure anyone
but creates a higher risk for  2 who comes driving negligently
and does not see the animal, swerves and injures a passenger or
pedestrian.
1. Both are liable b/c  1 created a type of accident that 
2’s negligence produced.  indivisible injury.
2. One created a risk that the other completes.
iv. HYPO- 2 s challenging each other to a drag race down
Comm. Ave. One  injures the .
1. b/c s agreed and acted in concert both are liable 
joint and several liability.
a. Summers
2. Consciously acted together creating a joint risk.
h. Proof of Cause
i. Dillon v. Twin State Gas
1.  was on a bridge and high voltage wires were in front
of him.  lost his balance, reaches out grabbing onto the
wires is electrocuted, dies and falls to the ground.
2. Question of what injury was caused?
a. Did the electrocution cause the loss of the ’s
life or simply the loss of a few additional
minutes of it?
ii. Summers v. Tice
1. Rule- the burden of proof regarding causation is
shifted from the  to the s when they have
simultaneously engaged in conduct imposing risks on
the .
2. Two hunters negligently fired pellets in the  direction
but the  was only hit by one.
3. HYPO- one or more truckers spill a hazardous material
when making deliveries. All 7 truckers are sued. It was
proved that one of the truckers spilled the material.
a. different than Summers b/c we don’t know if all
the truckers breached a duty.
iii. Lord. v. Lovett
1. Rule- loss of opportunity doctrine allows a  to
recover when their preexisting injury is aggravated
by doctor’s negligence.
2.  suffered broken neck in automobile accident and
alleges the s negligently misdiagnosed her injury and
did not properly administer therapy causing her to loose
a substantially better recovery.
3. 3 Ways to Handle Loss of Opportunity:
a. Traditional-  must prove that as a result of the
’s negligence they were deprived of at least
51% chance of a more favorable outcome than
they actually received.
b. Causation requirement relaxed and s may
submit their claim to a jury by showing ’s
negligence more likely than not increased harm
or destroyed a substantial possibility of
achieving a more favorable outcome.
c.  needs to establish causal link between their lost
opportunity and the ’s negligence.
i.  may recover for the lost opportunity of
a better outcome and may receive
damages only for this.
i. Proximate Cause- foreseeability of the risks.
i. Test- whether damages occurred were within the scope of the risk of the ’s conduct.
ii. Policy/Justification for the Risk Rule
1. The rule is pragmatic—liability must stop somewhere.
a. The but-for test would leave people exposed to liability as long as they
lived.
2. It is just and logical.
a. If liability only for negligence, and negligence creates a risk of harm
A—then liability should be limited only to harm A.
i. Any other result would create strict liability.
iii. HYPO- , a doctor, negligently performed a vasectomy and the man fathered a child.
The child set fire to the ’s garage.
1. The doctor is not liable for the damage to the garage because it was not a
foreseeable risk of his negligent vasectomy.
iv. Scope of Risk
1. Medcalf v. Washington Heights Condos.
a. Rule- the injury must be w/in the foreseeable scope of risk created
by the ’s negligence—must establish a necessary relationship
between the action and the injury.
i. Test if the injury would be foreseeable if it wasn’t for the
’s negligence.
b. Buzzer system for Condos was negligently maintained and the  was
forced to wait to be let in. While waiting she was attacked and suffered
injuries.
c. The ’s injuries were not a foreseeable risk of negligently maintaining
a buzzer system to let people into the building  unforeseeable injury.
2. Abrams v. City of Chicago
a. Rule- the injury must be w/in the foreseeable scope of risk created
by the ’s negligence.
b. The  failed to dispatch an ambulance for the  whose contractions
were 10 min. apart. The ’s friend drove her to the hospital, ran a red
light and was hit by another driver. The  was in a coma for 2 weeks
and the child died.
c. Take the breach of duty and think of the reasonable risks the one could
foresee—an injury occurring from a risk you did not foresee is not the
proximate cause of the injury.
3. Palsgraf v. Long Island RR
a. Rule- the  must be w/in the foreseeable class of persons likely to be
injured by ’s negligence.
b.  was standing on the platform when the guard assisted a passenger
onto the train. In doing so, the passenger dropped his package, which
contained fireworks. It exploded and injured the .
c. Unforeseeable .
d. Look at foreseeability of the  given the ’s negligence in the situation.
4. Medcalf and Palsgraf
a. The  is liable only for harms w/in the scope of risks he negligently
created
i. The types of injuries foreseeably risked by his negligence.
ii. To classes of person foreseeably risked by his negligence.
b. The  is not liable unless a reasonable person in ’s circumstances
should have foreseen that his conduct risked injuries of the same
general type that occurred to a general class of persons which the  is
w/in.
5. The Rescuer Doctrine
a. The rescuer can recover from the  whose negligence prompts the
rescue—even when the  injures himself and the  is injured in
rescuing them.
v. Manner of Harm
1. Hughes v. Lord Advocate.
a. Rule- the manner in which the harm occurs is insignificant in
assessing the risk.
b. s left a manhole unguarded. 2 boys descended into the hold and when
the came up unharmed, they knocked the lantern into the hole, it
exploded and the  was severely burned.
c. You do not have to foresee the exact chain of events that results in
injury.
2. Doughty v. Turner Manufacturing
a. Rule- the manner in which the injury occurs does not matter as
long as the injury is the type that happens from the ’s negligence.
b. A vat cover was knocked into the molten liquid and no splash occurred.
A couple minutes later the vat exploded and the  was severely burned.
c. Exception to the general rule in Hughes
vi. Extent of Harm is Unforeseeable
1. Hammerstein v. Development West
a. Rule-  is liable for the full extent of ’s harm even where the
extent of that harm was unforeseeable.
b.  negligently maintained their fire alarm. The , who has diabetes, was
forced to walk down the stairs, broke his ankle and suffered gangrene
from a blister.
2. Thin Skull Rule
a. Take the  as you find them—the fact that the harm was much worse
than expected does not limit the  from liability
b. Does not impose liability w/o fault.
c. HYPO-  negligently strikes  and the punch is that a normal person
would suffer slight injury but the  has a thin skull which the  is not
aware of and suffers terrible injuries.
vii. Acts of an Intervening Person or Force
1. Intervening- lies w/in the scope of the foreseeable risk or has a reasonable
connection to it.
a. Should relieve the original  of liability only when the resulting harm
is outside the scope of risk negligently created by the original .
2. Intentional/Criminal Intervening Acts
a. Watson v. Kentucky & Indiana Bridge & RR
i. Rule-  is not liable for another’s intervening actions if they
are unforeseeable.
ii.  negligently derailed a gasoline tank car, it began leaking and
someone threw a match and the gas exploded injuring the .
b. Delaney v. Reynolds
i. Rule-  is liable when the intervening cause is foreseeable,
the causal chain of events remains intact and the original
negligence remains a proximate cause of π’s injury.
ii. , ’s boyfriend, kept his loaded police gun in the house where
the  lived knowing the  had drug problems and was
depressed.  attempted suicide however was only seriously
injured.
iii. The traditional rule states that the purposeful act of suicide will
be deemed the legal cause of a decedent’s injury unless the ’s
negligence rendered the decedent unable to appreciate the selfdestructive nature of the suicidal act or is unable to resist the
suicidal impulse.
iv. Restatement 2nd holds 2 exceptions to the traditional rule:
1. When ’s tortuous conduct induces a mental illness in
the  which the suicide attempt results the  is liable.
2. When there is a special relationship between 2 parties in
which the  knows of the ’s risks of suicide the  is
liable.
3. Negligent Intervening Acts
a. Derdiarian v. Felix Contracting
i. Rule- an intervening act is not a superseding cause when the
risk of the intervening act is the same risk that renders the
actor negligent.
ii.  negligently constructed a barrier protecting a vat of liquid
enamel. A car drove through the barrier and the  was covered
with the enamel and severely burned.
iii. Manner of harm irrelevant
b. Ventricelli v. Kinney System Rent A Car
i. Rule- the harm from the risk must be unforeseeable under
the circumstances making the negligent act outside the
scope of risk and a superseding cause.
ii.  rented a car to the  with a broken trunk.  pulled over in
attempts to close the truck and was hit by a car.
iii. The actions of the car are a superseding cause because the harm
suffered by the  was outside the scope of risk of the ’s
negligence in renting a car w/ a broken trunk.
iv. If the extent of harm was not increased by the ’s actions
anymore than what they would have encountered the  did not
breach a duty.
c. Marshall v. Nugent
i. Rule- when the  negligently heightens the risk to the  and
the  is injured then the ’s actions are the proximate cause
of the ’s injuries if they are foreseeable.
ii. ’s truck ran ’s car off the road. Defendant stopped to help
Plaintiff and told him to direct traffic. Another car stuck
Plaintiff while attempting to avoid hitting Defendant’s truck.
d. Most courts agree that when a  causes harm to a person they are liable
for any enhanced harm caused by negligent provision of aid including
medical treatment.
j. Actual Damage- legally cognizable harm
i. There must be proof of harm.
ii.  must prove the damages claimed were caused in fact by the .
iii. Damages are compensatory and limited only by evidence.
iv. Right v. Breen
1. Rule-  must establish damages in order to have a negligence claim.
2.  stopped at red light and struck from behind by . No physical injuries were
reported at the scene.  later brought action alleging he suffered bodily injury
from the accident.
3. HYPO- A and B get in a verbal altercation, B gets mad and intentionally spits
in A’s face. Doe A have a battery claim against B?
a. Yes b/c there was harmful or offensive contact  you have a cause of
action in an intentional tort even if you can’t show specific harm.
i. You have a case of action w/o there being any specific
damages.
v. Personal Injury Torts
1. Punitive damages are warranted in some cases where the ’s conduct was
willful, wanton, reckless or malicious.
2. Nominal damages are not awarded.
3. Awardable Damages:
a. Reasonably incurred medical expenses.
b. Lost earning capacity or wage loss.
c. Pain and suffering—including mental pain and suffering.
d. Cost of medical monitoring of the ’s condition to intercept a
prospective disease
e. Any other specifically identifiable harm.
4. When a  is aware of their lost ability to pursue life’s pleasures damages are
generally awarded for that ―loss.‖
5. When a  is not aware of their lost ability to pursue life’s pleasures damages
are generally not awarded for that ―loss.‖
6. Martin v. United States
a. Rule – elements considered in calculating damages in a negligence
claim:
i. Past and future medical expenses.
ii. Present value of lost future earning capacity.
iii. Pain and suffering.
iv. Interference with normal and usual activities.
v. s were riding a motorbike when they struck a sagging power
line negligently maintained by the government. Both suffered
severe a permanent injuries
k. Defenses of Negligence
i. Contributory/Comparative Negligence
1. Contributory Negligence
a. Butterfield v. Forrester
i. Rule- when the  acts unreasonably and those actions led to
his harm they will be found contributorily negligent and
barred from recovery.
ii.  left a pole across the road. The  was negligently riding his
horse very fast did not notice the pole and fell sustaining
injuries.
2. Comparative Negligence
a. Compare the ’s negligent conduct with the ’s negligent actions
and determine how much if anything the  should recover.
b. Most courts have moved away from contributory negligence and
adopted a comparative negligence standard.
c. Pure Comparative Fault-  not barred from recovery but receives a
lesser award of damages based on their degree of fault.
d. Modified Comparative Fault- if the ’s negligence is greater than
50% they are barred from recovery.
e. Crownover v. City of Shreveport
i. Rule- Factors Considered in Assigning Degree of Fault
1. Whether the conduct resulted from carelessness or
an awareness of danger.
2. The risk created by the conduct.
3. The significance of what the actors sought from their
conduct.
4. The actors’ capacities.
5. Extenuating circumstances requiring the actors to
proceed hastily.
ii. A PO ran a red light then put his lights and siren on. The 
proceeding through the green light hit the police car and
suffered injuries.
f. Restatement 3rd Apportionment of Liability (prevailing view)
i. The persons conduct including awareness of the risks created by
the conduct and any intent w/ respect to the harm created.
ii. The strength of the causal connection between the person’s risk
creating conduct and the harm.
g. Wassell v. Adams
i. Rule- weigh the cost to the  of avoiding the accident
against the cost of the  of avoiding the accident—the party
w/ the lower cost would be more negligent.
ii.  was sexually assaulted by a man while staying at the ’s
hotel.
h. McNamara v. Honeyman
i. Rule-  is not comparatively negligent when it was the ’s
duty to protect them from self-harm.
ii.  was mentally ill and hanged herself while in a state hospital.
i. Christensen v. Royal School District
i. Rule- when the  stands in a special relationship w/ the
child and owes a duty to protect the child then the child is
not comparatively negligent for their injuries.
ii. , 13-yeard-old student was sexually abused by the , a teacher
at her school.
iii. A child is not comparatively negligent when they have no duty
to protect themselves.
ii. Assumption of Risk-  may be barred from recovery if they knowingly and
voluntarily assumed the risk of any damages caused by the ’s acts.
1. Based on ’s conduct.
2. 3 types:
a. Expressed- what the  did or knew about the risks and did they
voluntarily waive them.
i. rose out of contractual underpinnings.
ii. Does not need to be in writing.
iii.  must expressly waive their right to sue.
b. Implied- what would a reasonable person have done under the
circumstances?
i. Indistinguishable from contributory/comparative negligence
c. Primary- another way of saying that the  did not breach a duty.
3. Expressed Assumption
a. Boyle v. Revici
i. Rule-  must knowingly and voluntarily assume the risk in
order to be barred from recovery.
ii.  had cancer and was treated by a dr that did not use a
medically acceptable method. The dr made the  aware of this
yet she still voluntarily underwent the treatment and die w/in 1
year.
b. Tunkl v. Regents of UCLA
i. Rule- b/c of a hospital’s superior bargaining power and the
essential services they provide, they may not use signed
release forms to bar ’s recovery.
ii.  was admitted to the hospital on the condition that he sign a
release form absolving s of all liability for their negligent acts.
iii.  usually does not voluntarily waive their right to sue.
c. Moore v. Hartley Motors
i. Rule- an exculpatory release can be enforced if the intent is
to release a party from liability for future negligence is
obvious and clear.
ii.  signed a release form to partake in an ATV safety course. The
 was injured while completing the course.
4. Implied Assumption
a. Betts v. Crawford
i. Rule- contributory negligence and implied assumption of
risk are merged when raised as a defense to a breach of
duty.
ii. The  was a housekeeper for the  and tripped over the
children’s’ toys sustaining injuries.
5. Primary Assumption
a. What was the duty owed by the  and was it breached?
b. Avila v. Citrus Comm. College
i. Rule- in recreational activities there is a primary implied
assumption of the risk by the  and the ’s duty is not to
increase the inherent risks—don’t be reckless.
ii.  was hit by a pitch and suffered personal injuries.
iii. The rule establishes a lower duty of care making it harder for
the  to prove negligence.
c. Open and Obvious Danger
i. Stinnett v. Buchele
1.  not responsible for roofer’s injury b/c roofer has more
knowledge about roofing.
2.  did not breach a duty b/c he could reasonably expect
the roofer to care for himself.
ii. O’Sullivan s. Shaw
1.  did not breach a duty b/c the  could expect the  to
see that they were diving into the shallow end of the
pool.
iii. Statute of Limitations
1. Does not focus on ’s conduct.
2. Requires  to sue w/in a reasonable amount of time from when the incident
took place.
a. Cause of action accrues when the  knows that all the elements of the
c.o.a. are met.
i. Discovery rule- the cause of action does not accrue until the 
knows or should have known of the underlying facts necessary
to prove each element.
1. Delays the claim until all elements of the tort are present
and the  discovers both the injury and the ’s role in
causing it.
3. Intentional torts 1-2 yrs., negligence 3-5 yrs.
4. Bars old claims which may be unfair or costly b/c evidence is lost or altered w/
time.
5. Cumpton v. Humana
a. Rule- the statute of limitations begins running from the date of the
injury or the date of the alleged malpractice.
b.  underwent surgery and was injured when her bed was being lowered.
She brought suit more than 3 yrs later.
6. Shearin v. Lloyd
a. Rule- the statute of limitations begins running when the  can sue
on a claim.
b.  removed ’s appendix and left a sponge in his stomach. The 
suffered an infection and required another operation.
7. McCollum v. D’Arcy
a. Rule- statute of limitations is tolled when the  has repressed
memories of the incident.  discovery rule.
b.  recalled of sexual abuse as a child when she attended a child abuse
workshop. She was 50 yrs. when she brought the suit.
8. Doe. v. Maskell
a. Rule- ignorant repression is equal to forgetting and will not
activate the discovery rule in order for the statute of limitations to
be tolled.
b. The s attended a parochial high school in the 1960s/70s and were
physically, mentally and sexually abused. They brought suit in 1992
claiming they repressed their memories until now.
9. Preemption and Compliance w/ Statute
a. Statute requires minimum due care—sometimes due care goes beyond
statute requirement as set by custom or reasonableness.
b. Miller v. Warren
i. Rule- compliance with a regulation does not constitute due
care per se.
ii. s suffered burns in their motel room by awaking to smoke.
There were no smoke alarms in the room and the fire code did
not require them.
iii. If s know or should have known of a risk that would have
been prevented by some reasonable measures not required by
regulation they are negligent if they do not take such measures.
iv. Circumstances may require greater care if the  knows or
should have known of other risks not contemplated by the
regulation.
III. Strict Liability
a. Liability in which there is no negligence or intent.
b. Restatement 3rd
i. There is strict liability w/o proof of negligence if:
1. The ’s activity creates a reasonably foreseeable and highly significant risk of
physical harm even where reasonable care is exercised.
2. The activity is not one of common usage.
ii. Strict liability is appropriate where the victim was uninvolved.
iii. If reasonable care would reduce the risks then strict liability does not apply.
iv. If the activity is common strict liability does not apply.  common usage rule.
c. Writ of Trespass
i. Forcible harm done directly by the 
1. Intentional torts
2. Negligence
3. Non-fault or wrongful actions
4. Question of whether  forcibly and directly harmed the .
ii. Intent and negligence not required.
d. Writ of Trespass on the Case
i. Includes indirectly caused injury.
1. Some negligence injuries—Butterfield v. Forrester ( left log on the road 
negligently rode into it)
e. Trespass by Barnyard Animals
i. Strict liability tort
ii. Conflicting uses- where an area is dominated by ranchers and one’s cattle gets out the
cattle owner is not liable where as an area is dominated by farmers and one’s cattle get
out they are liable for damages.
iii. HYPO- A’s cattle escape from his barn and wander onto O’s property.
1. A is strictly liable for any trampling damage the cattle may do.
2. Jurisdictions where ranching predominates tend not to have strict liability for
this tort—opposite in jurisdictions where farming predominates.
f. Nuisance
i. Interference w/ use and enjoyment of the land.
g. Abnormally Dangerous Activities
i. ’s activities creates a reasonably foreseeable and highly significant risk of physical
harm even where reasonable care is exercised by all actors and the activity is not one
of common usage.  conflicting uses.
ii. Rylands v. Fletcher
1. Rule- strict liability is imposed on one who brings a hazardous nonnatural activity onto their land and it escapes and causes damage.
2. s built a lake on their land in which the planned to operate a mill. Water from
the lake escaped and flooded and damaged the ’s mine.
h. Vicarious Liability
i. A can be held liable for B’s tortuous acts even though A is not negligent in any way.
ii. Respondeat Superior- employer’s responsibility for the torts of its employees
committed w/in the scope of employment.
1. Riviello v. Waldron
a. Rule- employer is liable for the torts of his employees if they’re
committed w/in the scope of employment.
b. Employer was liable for the ’s when he injured the  by accidentally
striking him w/ a knife in the eye.
2. Fruit v. Schreiner
a. Rule- employer is liable for the torts of his employees if they’re
committed w/in the scope of employment.
b. Fruit attended a convention required by him employer. He attended a
bar after the convention and on his way home struck and injured
Schreiner.
c. Enterprise Liability- price of goods and activities should reflect the
accident costs they cause.
i. Holding enterprise strictly liable facilitates internalizations of
costs which reduces costs of accidents.
ii. The market will tend to favor the cheaper product giving an
incentive to companies to make their products and activities
safer.
IV. Products Liability
a. Those involved in commercial distribution of products are potentially liable for product
caused harm.
b.  can bring a claim on a contract theory for breach of warranty or on tort theories of
negligence, strict liability or fraud.
c. Looks at the product itself.
d. ’s Causes of Action
i. Negligence- if the manufacturer was negligent and the risks were foreseeable then the
manufacturer is liable.
1. Privity Rule- basis for liability was the duty undertaken in a contract of sale
and the manufacturer was only liable to buyers in privity—those he directly
sold to.
2. Focuses on ’s conduct.
ii. Strict Tort Liability
1. Focuses on the product.
2. Elements of a Strict Liability Claim:
a. Prove the product was defective.
b. The defect was an actual and proximate cause of the injury.
c. The product was defective when it left the ’s hand.
iii. Products liability began as a strict liability tort w/ manufacturing defects and has
slowly moved towards looking more like negligence w/ the introduction of design and
information defects.
e. Rationales
i. Consumer Expectations- consumers rely on manufacturer’s representations of the
products.
ii. Enterprise Liability- ―loss spreading‖ forces manufacturers to create safer products if
products costs are to represent the costs of accidents they cause.
iii. Practicality- since most defective products are made that way the court is saved time
by not having to prove negligence.
iv. Fairness- manufacturer should incur costs of injury b/c they enjoy the advantages of
putting their products on the market.
1. Non-reciprocal Risks- manufacturer imposes risks on the consumer, which the
consumer cannot impose on the manufacturer.
v. Deterrence- if strict liability imposed manufacturers will make products safer in order
to avoid liability costs.
f. Manufacturing Defects
i. Usually affect a small percentage of a manufacturer’s product in a particular line.
ii. Restatement 2nd- a product contains a manufacturing defect if it exceeded the dangers
a reasonable consumer would expect.  consumer expectation test.
1. Imposes strict liability.
a. Focuses on the product itself
iii. Restatement 3rd- a product is defective when it departs from the manufacturer’s
intended design even though all possible care was used in preparation and marketing.
1. Moves away from strict liability.
iv. Lee v. Crookston Coca-Cola Bottling Co.
1. Rule- the  can use res ipsa to get to the jury and rely on circumstantial
evidence in which it can be inferred that it is more probable than not that
the product left the manufacturer defective.
2.  was a waitress and was injured when a coca cola bottle exploded in her hand.
v. Jackson v. Nestle-Beich Inc.
1. Rule- consumer expectation test determines defectiveness based on
whether the product was dangerous beyond what the consumer expects—
Restatement 2nd.
2.  broke a tooth on a hard pecan shell embedded in the candy they purchased.
g. Design Defects
i. Restatement 2nd
1. A product is defective if it was more dangerous than the ordinary consumer
would expect  consumer expectation test. OR
2. Risk Utility Test- weigh the likelihood of harm, the gravity of harm and the
cost of preventing the harm by using a different design.
a. If the likelihood of the harm and the cost of preventing it is higher than
the gravity of the harm then the product does not have a design defect.
ii.
iii.
iv.
v.
vi.
b. If the likelihood of the harm and the cost of preventing it is lower than
the gravity of the harm then there is a design defect.
c. Same reasoning in BPL formula in negligence from Carroll Towing.
Restatement 3rd- a product is defective in design when the seller could have reduced
or avoided the product’s foreseeable risks by the adoption of a reasonable alternative
design (RAD).
1. Moves away from strict liability.
Leichtamer v. American Motors
1. Rule- a product may be found defective in design if the π demonstrates
that the product failed to perform as safely as an ordinary consumer
would expect when used in an intended or reasonably foreseeable manner.
2. s were passengers in a Jeep when it overturned, the rollbar displaced and both
were killed.
Knitz v. Minister Machince
1. Rule- risk utility test states that if the risk of danger outweighs the
benefits of the product’s design then it is defective.
2. ’s hands were injured while operating a press machine owned by the . The
machine acted as the  expected it to.
3. Consumer expectation test is not relevant for all situations.
Barker v. Lull Engineering
1. Rule- product is defective in design if:
a.  shows the product failed to perform as safely as an ordinary
consumer would expect when used in an intended or reasonably
foreseeable manner.
b. If  proves the product’s design proximately caused their injury
and  fails to prove that the benefits of the design outweigh the
risks.
2.  was operating a lift it began to vibrate as if it were going to fall over. 
jumped out and was hit by falling lumber and injured.
3. Shifts burden of proof to the  to justify the products design through risk
utility test.
a. Attempts to make the risk utility test stricter.
4. All the  must do is prove the design caused the harm.
Honda v. Norman
1. Rule- under the Restatement 3rd the  needs to show a RAD which must
be both technologically and economically feasible.
2. Decedent was driving drunk and drove her car off a cliff into water. She
drowned b/c she could not unbuckle her seatbelt.
3. In addition to proving RAD evidence must also show that the product was
unreasonably dangerous and the harm was foreseeable.
4. RAD takes consumer preferences into account.
5. Negligence- the product was defective but someone was designing it and
designing is an action  there could be negligence in the process of design.
h. Information Defects
i. Risk Utility Test always calls for a warning b/c the cost of one is relatively small.
ii. Whether or not a reasonable warning would have produced a different outcome.
iii. Liriano v. Hobart Group
1. Rule- A manufacturer’s failure to provide appropriate information about
a product may make an otherwise safe product dangerous and defective—
accepted under both Restatements.
2.  was operating a meat grinder and his hand was severally injured. The safety
guard that the manufacturer attached to the product was removed by the ’s
employer. The machine had no warning indicating it should be operated w/ the
guard on.
iv. Prescription drugs- warning given to the doctor—learned intermediary.
1. Drug advertising developed and consumers challenged the rule.
a. Warning should be in the advertisements.
2. If there is no doctor the warning should be given to the consumer.
Type of Defect
Manufacturing
Design
Information
Restatement 2nd
Consumer Expectation Test- a
product is defective when it is
dangerous beyond what the
consumer would expect.
Consumer Expectation Test- a
product is defective if it was more
dangerous than the ordinary
consumer would expect OR
Risk Utility Test- if the risk of
danger outweighs the benefits of
the product’s design then it is
defective.
A manufacturer’s failure to
provide appropriate information
about a product may make an
otherwise safe product dangerous
and defective.
Restatement 3rd
A product is defective when it
departs from the manufacturer’s
intended design even though all
possible care was used in
preparation and marketing.
A product is defective in design
when the seller could have
reduced or avoided the product’s
foreseeable risks by the adoption
of a reasonable alternative
design (RAD) that is
technologically and economically
feasible.
A manufacturer’s failure to
provide appropriate information
about a product may make an
otherwise safe product dangerous
and defective.
i. Defenses
i. ’s Conduct
1. Comparative/Contributory Negligence
a. Bowling
2. Assumption of the Risk
3. Bowling v. Heil
a. Rule- followed minority rule in stating that contributory negligence
by  in a strict liability tort bars them from recovery. Assumption
of the risk is an affirmative defense.
b.  manufactured dump truck.  borrowed the truck and the bed would
not lower.  placed his head the bed and manipulated the valve. The
bed fell killing the .
4. Misuse
a. Foreseeable Misuse- manufacturers under duty to design products w/
foreseeable misuse in mind.
i. ’s misuse can be regarded as comparative fault/assumption of
the risk.
ii. ’s use can be foreseeable even if it was used in a way that the
manufacturer did not intend.
iii. Recovery is not barred.
b. Unforeseeable Misuse
i. No defect- when ’s misuse is unforeseeable the product may
not be defective.  not an affirmative defense.
1. Bars recovery.
c. Whether or not the use was foreseeable/unforeseeable is a question for
the jury.
ii. Causation
1. Cause-in-fact- the defect has to be the cause in fact and proximate cause of the
’s particular injury.
2. Hymowitz v. Eli lilly Co.
a. Rule- In DES cases, any  manufacturer that participated in
marketing DES may be held liable proportional to its market share
of the national DES market—market share theory.
b. DES was a drug given to women in risk of a miscarriage. It caused
cancer in the offspring of women who took it. ’s mother took the drug.
c. Design defect b/c the pills didn’t come off the product line different
than the manufacturer intended.
d. Market share theory is several liability apportioned to the ’s share of
the market