Intentional Torts
Torts to the Person
1
Battery
1
Act
Intent
Vosburg
Harmful or Offensive Touching
1
Alcorn v. Mitchell
2
Causation
2
Vosburg v. Putney
2
Assault
Act
I de S and Wife
Intent
Tuberville v. Savage
3
Apprehension
Intentional Infliction of Emotional Distress
Act
Alcorn v. Mitchell
4
Intent
Causation
Bouillon v. Laclede Gaslight
Severe Emotional Distress
George v. Jordan Marsh
5
Defenses to IIED
5
Freedom of Speech
Hustler Magazine
Free Exercise of Religion
Policy
Defenses to Intentional Torts
I. Consent
Hudson v. Craft
Mohr v. Williams
7
Criminal Acts
Hudson v. Craft
8
6
II. Self-Defense
Non-deadly force
Deadly force
Courvoisier v. Raymond
III. Defense of Land
A. Non-deadly force
M’Ilvoy v. Cockran
9
1
B. Deadly force
10
C. Use of mechanical devices
Deadly mechanical devices
Rationale
Bird v. Holbrook
E. Threats
Torts to Property
11
I. Trespass to Land
A. Act
B. Intent
C. Intrusion upon land
D. Possession
E. Causation
II. Defenses to Priviledged Invasion of Land
12
A. Consent
B. To reclaim property
a. Landowner at fault
b. Property owner at fault
c. Act of God
C. Public Necessity, Rationale
D. Public Necessity
E. Private Necessity
13
Vincent v. Lake Erie Transp’n
Ploof v. Putnam
NEGLIGENCE
I. Act
14
II. Duty of Care
A. Reasonable Person Test
Vaughan v. Menlove
Policy
B. Establishing the standard
15
Custom
Compliance with statute
C. To whom does the standard apply?
a. Children
i. Daniels v. Evans
Rationale
b. persons with disabilities
i. Roberts v. Ring
2
c. mental deficiency
Rationale
16
Breunig
Rationale
d. knowledge and skills
i. medical profession
Brune v. Belinkoff
a. informed consent
Canterbury
17
D. To whom is the duty of care owed? 18
a. to P’s who are disabled
i. Fletcher v. City of Aberd
b. drunk people
i. Robinson v. Pioche
F. What is the duty owed?
a. Unreasonable risk
i. Blyth v. Birmingham W.W.
b. emergency
i. Eckert v. Long Isl RR
c. foreseeability
d. reasonableness of the risk
e. ordinary care
f. duty owed to 2 or more classes
i. Cooley v. Public Service
19
g. Cost-benefit analysis and
Unacceptable risk
US v. Carroll Towing
B <PL
h. warning would’ve been futile
III. Custom
TJ Hooper
20
IV. Violation of Statutes
A. Def’s Defenses
a. Contributory negligence
b. Assumption of risk
B. D violates statatute
21
Osborne v. McMaster
V. Negligence per se
Martin v. Herzog
A. Licensing Statutes
a. Brown v. Shyne
3
B. violation of statute and liability
22
a. Ross v. HarmanLocked vehicles
C. Dramshop acts
a. Vesely v. Sager
D. Judge and Jury
E. Proof of Negligence
23
a. Res Ipsa Loquitur
i. Ybarra v. Spangard
1. many doctors
VI. Contributory Negligence
Butterfield v. Forrester
VII. Assumption of Risk
VIII.
24
Comparative Negligence
a. Li v. Yellow Cab
b. Knight v. Jewett
IX. Joint and Several Tortfeasors
25
A. Concurrent causes
Kingston v. Chicago RR
B. Alternative Liability Rule
Summers v. Tice
C. When actualy tortfeasor unknown
i. Enterprise Liability
Blasting Cap Case
ii. Market Share liabiilty 26
Sindell v. Abbot Lab
X. Vicarious Liability
A. Employer-Emp’ee
Ira S. Bushey and Sons
(drunk seaman)
b. Independent contractors 27
Hardy v. Brantly
Causation
28
I. Cause-in-fact and Prox cause needed
II. Proof of causation
B. Last Chance of Survival
a. Herskovits
(lung cancer reduced chance)
4
C. Proximate Cause
a. Remoteness
Ryan v. NY Central RR
b. violation of statute
c. rescue
29
d. kind of danger foreseeable
e. duty owed to foreseeabe P’s
i. Palsgraf
f. placing P in position of peril
i. Marshall v. Nugent
g. intervening causes
h. emotional injury
30
Duties to Defendants
31
I. No duty to warn
Buch v. Amory
8 yr old trespasses onto factory
III. Misfeasance
Montgomery v. Nat’l Convoy and Trucking
(Trucks stalled, no original neg)
IV. Gratuitous Undertakings
Coggs v. Bernard
(Casks of brandy)
A. reliance on volunteer
a. Erir RR v.
(attendant at crossing)
b.Marsalis v. LaSalle
(cats locked up) 32
V. Special Relationships
Kline v. 1500 Mass Ave apt
(robbed and assaulted at apt)
Policy
Strict Liability
33
Ultrahazardous or abnormally dangerous activities
Rylands v. Fletcher
(brings dangerous onto land)
I. Causation
Madsen v. East Jordon Irrigation—mink case
5
32
II. Shipment of Ultrahazardous chemicals
Indiana Harbor and Cyanamid
NUISANCE
35
I. Types of harms
II. Basis of Liabililty
A. Negligence
B. Strict Liabiilty
a. Abnormally dangerous act
C. Intentional Conduct
a. Morgan v. High Penn Oil
(restaurant and trailer and gases)
III. Light and Air
36
Fontainbleau Hotel
IV. Standard for Measuring Offensiveness
Rodgers v. Elliot and bell ringer
V. Coming to Nuisance
Ensign v. Walls—St Bernards
VI. Permanent Damages or injunction
Boomer v. Atlantic Cement
V. Defenses to Nuisance
PRODUCTS LIABILITY
I.
37
modern rule
a. Macpherson v. Buick
II. Causation
II.
Product Defects
A. Construction Defects
Pouncey v. Ford Motor co.
B. Apparent Risk
38
Micallef v. Miehle
(printing press)
C. Defective Design
Volkswagon v. Young
Barker v. Lull (high lifter)
Consumer Expectation Test
Linegar v. Armour of America
III.
Failure to Warn
a. McDonald
39
6
Sarah’s Final Exam Outline
Torts
INTENTIONAL TORTS
TORTS TO THE PERSON
I. Battery
Prima Facie case:
 Act
 Intent
 Harmful or offensive touching
 Causation
A. ACT by the defendant
– an external manifestation of actor’s will=volitional movement.
1. unconscious acts don’t count b/c has to be volitional
2. reflex actions count, i.e., a muscular reaction
3. acts by incompetants count
B. INTENT
– had to intend the harmful contact, just so that he meant to actually kick the kid
[not that he meant the outcome of the kicking].
1. test: belief in substnatial certainty that the result of kicking will occur
2. motives don’t matter
3. trasferred intent
• battery
• assault
• trespass
Vosburg v. Putney
P didn’t have to show D intended to cause the harm, just that D committed an
unlawful act and P didn’t consent to it.
C. HARMFUL OR OFFENSIVE TOUCHING
-- must’ve touched P’s person or something so closely associated with P as to
count (touch hat, cane, plate out of someone’s hand).
1. “harmful” -- inflicts pain, injury, disfigurement, or impairment
2. “offensive” touching
• if P is hypersensitive then doesn’t count b/c use reasonable person
standard. The exception is if D knew of P’s hypersensitivities, then D is
liable.
3. no awareness at the time is necessary – if you kiss sleeping beauty, it’s a
battery when she finds out and is offended.
7
Alcorn v. Mitchell page 70
At the close of trial, P spit in D’s face.
Held: Liability for such an affront as spitting and we’re going to award
punitive damages b/c we don’t want pp to have to retribute and have to watch
violence escalate.
For offensive or lighter batteries
Policy: we don’t want pp to retaliate, so we hold pp liable so violence doesn’t
escalate.
D. CAUSATION
– direct or indirect result
1. can’t be independent and unexpected force which causes harm.
2. no foreseeability requirement like in negligence cases.
Vosburg v. Putney
Take the victim as you find him. Doesn’t matter that kid couldn’t have foreseen
that the microbes were going to be revivified.
II. ASSAULT
Prima facie case:
• act
• apprehension
• causation
• intent
A. ACT by the defendant
-- no contact required.
1. words alone don’t suffice b/c requires an anticipation of immediate harm.
[side note: words will suffice for intentional infliction of emotional harm,
though].
I. de S. and Wife v. W. de S.
Beating on door with a hatchet, no contact, but scared lady inside house.
Held: There’s an assault where P is caused to fear for her safety even when
there’s no actual harm.
B. INTENT
-- must have intended to
1. inflict a harmful or offensive touching on P
OR
2. to put P in apprehension of an immediate harmful or offensive touching.
8
Tuberville v. Savage ~ page 68
Hand on sword, “If it were not assize-time, I would not take such language from
you.” Then D struck him for saying it, in claimed self-defense.
Held: No liability if the words negate the intent to harm the person. The other
person is not justified in self-defense. D’s apprehension was not reasonable.
Mohr v. Williams
Intended to operate but not to harm her. Liable for assault.
C. APPREHENSION
--D must apprehend an imminent harmful or offensive harm, but need not be
afraid.
1. P must be aware of the threat
2. Imminence of threatened harm
i. Threats of future harm don’t count
ii. Conditional threats can count, depending on who’s in control of
the condition.
3. nature of the apprehension
i. doesn’t have to fear, just anticipate the touching
ii. liable even if D appeared to have the ability to hurt or touch
III. Intentional Infliction of Mental Distress
Mental Distress is characterized by physical injury or severe mental suffering
resulting from emotional disturbance (w/o physical impact) caused by highly
aggravated words or acts of D done with intent to cause mental suffering or with
knowledge or belief on the part of D that such is substantially certain to result from
such words or acts, and w/o consent or privilege.
(Closely tied to assault, so see assault)
Prima facie case:
• Act by defendant which is “extreme and outrageous conduct”
• Intent
• Causation
• Severe Emotional Distress
A. ACT
-- extreme and outragious conduct, “exceeding all bounds of decent behavior.”
-- words or gesture can count




threatening language by bill collectors
an insurance co’s refusal to pay benefits clearly owing
a moving company’s failure to deliver
a doctor’s having sexual relations while he had herpes
9
Alcorn v. Mitchell page 70
At the close of trial, P spit in D’s face.
Held: Changing attitudes and social conditions are relevant to this issue.
Racial slurs held actionable.
B. INTENT or recklessness
• D must have intended to cause sever emotional distress ormental anguish. Or
even if he didn’t intend, a recklessness will suffice for intent. Definitely requires
a more culpable state of mind than negligent infliction of mental disturbance.
• No transferred intent liability available
Restatment requires intentional or reckless state of mind.
C. CAUSATION
1. Distress alone is sufficient
REASONING: The outragious nature of D’s conduct may be a more reliable
indication of damage to P than actual physical injury.
2. Liability to third persons only when it’s to members of that person’s family
and they’re present at time of the conduct and D knew of P’s presence. OR
conduct was reckless.
RATIONALE: D must have known that his conduct was substantially certain to
hurt P or the conduct was at least reckless toward P.
Bouillon v. Laclede Gaslight
Meter reader demanded to be let in to apt, finally desisted. Lady miscarried later.
Parasitic damages resulting from another tort: Liable for the natural, necessary,
direct, and proximate damages of his trespass. Ct allowed claim for parasitic
damages for the trespass that was committed.
D. SEVERE EMOTIONAL DISTRESS
--Must be severe to allow recovery. More than the reasonable person could
endure. Used to require a serious injury. Today, however, there seems to be
amove away from the req’t that there must be some physical injury manifestations
from the emotional disturbance casued by D.
Also liable for resulting bodily harm if it results from the emotional distress. See
case below:
10
George v. Jordan Marsh
Debt collection guy harassed lady, causing P two heart attacks.
Held: one is liable for emotional distress and bodily harm when, with extreme
and outrageous conduct, intentionally causes severe emotinal distress, with bodily
harm resulting from the distress. This is the case even when he has caused no
heretofore recognized common law tort.
E. DEFENSES TO INTEN’L INFLICTION OF MENTAL DISTRESS
1. Freedom of Speech
Freedom of Speech and Public Figure
Hustler Magazine v. Falwell
Parody comic about Falwell’s “first time” as a drunken encounter with his
mother in an outhouse.
Held: No liability for Hustler b/c P was a public figure and First Amendment
concerns arise just like in defamation.
2. Free Exercise of Religion
Policy why ct might NOT award IIMD:
 The character of the injury suffered in mental distress is difficult to determine.
You can’t see the mental distreess, whereas a broken arm is easy to see.
 The damages resulting are subtle and speculative, hard to assess.
 Fraudulent, ficticious claims
 Many more pp will be able to sue, opening up floods of litigation.
 Will encourage perjury, through overstating the facts or fabrication.
11
DEFENSES TO TORTS TO THE PERSON: BATTERY, ASSAULT, and I.I. of
EMOT’L DISTRESS
I. Consent
A. Types of Consent
i. Based on P’s behavior
a. Unlawful acts
Majority rule—a protected person under a statute cannot “consent” to
the act proscribed by the law. So, even though he seemed to consent to
the illegal activity, he can still sue.
Hudson v. Craft
18 y.o. sued promoter of illegal carnival boxing concession for
assault and battery after he was induced to box and was injured.
Held: The statute forbids boxing matches unless a licensed by the
state boxing commission. The statute demonstrates a concern for
the safety of participants. Therefore, a boxer who is hurt in an
unlicensed match (doesn’t have to do with minors in this case) may
sue the promoter.
Public policy was v important in deciding this case.
b.
- Actual express consent
- Apparent consent (implied by P’s conduct in light of the circumstances)
O’Brien v. Cunard
P’s failure to object to a vaccination D is preparing counts as consent.
Ex: playing sports impliedly means consent to normal contacts.
Ex: someone who rides the subway, impliedly consents to taps on the
shoulder or brushings.
iii. Consent implied by Law if it’s necessary to save a life or some other
cardinal interest in person or property. And one of the following:
- P is unconscious or otherwise unable to consider the matter;
- An immediate decision is necessary;
- There’s no reason to believe that P wouldn’t consent if able to do so;
- A reasonable person in P’s position would consent.
B. Consent is not a defense when…
i. goes beyond the consent given
12
Mohr v. Williams
D exercised an unpriveleged battery b/c it went beyond the limits of the
consent given.
ii. Fraud
If fraud is used to get consent, then no good.
Exception: if the fraud is only with respect to a collateral or peripheral
matter, then the consent is good. Ex: even if bill is counterfeit, the act is
still okay, just D owes P a real $20 bill.
iii. Duress
iv. Mistake
if the mistake was caused by D.
- mistake of law
- mistake of fact
v. Incapacity to consent
minor, drunk, [mentally insane pp CAN form consent, though].
Exception: insane pp will be held liable and consent will count under the
following policy reasons:
• guardians will take better watch over the insane persons
• an innocent victim shouldn’t have to bear the costs when the
insane person is able to make restitution
• Very difficult to determine when person’s mentally incompetant
vi. Criminal Acts
Majority view:
Consent good, thus D is off the hook:
If no breach of the peace was involved, then P’s consent is good.
Otherwise, the consent is not effective and then P can recover.
Rationale: Where a breach of the peace is involved, there is a public
interest in seeing the participants bear full liability for their acts.
Minority view:
No real consent, thus D is held liable: Some courts will hold the consent
good in any case, but this is minority view.
Rationale: No reason is seen to invalidate P’s consent and thus allow her a
cause of action merely b/c it was a crime. If they’re allowed to recover
from one another, one might “profit” from her own wrongdoing.
Exception under minority view, holding consent good even if it’s a
crime: if P is a member of a protected class.
13
Hudson v. Craft
The statute forbids boxing matches unless a licensed by the state
boxing commission. The statute demonstrates a concern for the
safety of participants. Therefore, a boxer who is hurt in an
unlicensed match (doesn’t have to do with minors in this case) may
sue the promoter.
Defenses to Intentional Torts (cont’d)
II. Self-Defense
A. Non-deadly force is allowed when:
1. Reasonable apprehension of any immediate bodily contact which is harmful or
offensive
2. Reasonable means are used, which are necessary to avoid or prevent the
contact threatened.
3. No duty to retreat except
Need to retreat: (1) where you realize he’s not intending to create the risk
and (2) when you realize he thinks you’re someone else. Obligated to
come up with other reasonable solutions rather than self-defense.
B. Deadly force is allowed when there’s
1. Reasonable apprehension of serious harm or death b/c of P’s actions.
Courvoisier v. Raymond page 35
Comes out of home at night above jewelry store. Armed with
revolver, he fired shots in the air to dispell rioters. A deputy
sherrif came upon scene and attempted to approach Raymond the
jewelry owner. Raymond shot at sherrif, thinking him one of the
rioters.
Held: Raymond was justified in shooting sherrif b/c a reasonable
person would have thought the same, even though he was
mistaken.
• D would’ve been justified in shooting one of the rioters, and he
simply believed P to be a rioter.
14
2. Duty to retreat
a. Majority view: no duty to retreat.
Rationale: When you’re threatened with deadly force, the
feasibility of retreat shouldn’t be second-guessed by courts
after the event. Also, the actor has the right to be where he is.
b. Minority view: duty to retreat [rarely used when guns are
involved].
When can be done safely.
Rationale: The social interest in preventing deadly affrays
outweighs the actor’s right to stand his ground.
C. Threats of force used in self-defense
You can use threats as a means of self-defense and won’t be held liable for
assault.
D. Limitations on right to self-defense
1. danger is terminated and D knows it.
2. Excessive force used
3. Can’t injure third person intentionally, but if it was unintentional and
not even negligent, then it’s okay.
4. Everything about self-defense is couched in reasonableness, the
objective test. NOT how D saw it or even how it actually was, but how
the reasonable person would have seen it.
5. What if you go to someone else’s defense in mistake? Cts are split on
this one.
Defenses to Intentional Torts (cont’d)
III. Defense of Land “I was only protecting my property.”
A. Non-deadly force is allowed when all of these are present:
1. P is not privileged to intrude
2. D reasonably believes force is necessary to prevent the intrusion
3. D first demands that P desist or leave and P doesn’t leave still. [this last
one isn’t nec where it’s obvious it would be futile or would further
endanger the situation. M’Ilvoy]
M’Ilvoy v. Cockran page 40
Plaintiff Cockran tore down M’Ilvoy’s fence. M’Ilvoy caught him in the
act and severly beat him. P brought an action for assault and battery for
hurting him even though he was tearing down the fence.
Held: A landowner cannot attack a trespasser whose entry was nonviolent. He should have asked him to first leave. Also b/c the trespassor
did not first assault.
15
B. Use of deadly force
Usually only allowed in defending house, not other property. Some cts not even
your house, just your person from death or serious bodily injury.
C. Use of mechanical devices
(high-voltage fences, spring traps, etc.)
ONLY WHEN:
1. The use of such means is reasonable and necessary under the circumstances,
or customary in the locale AND
2. Adequate warning of the use is posted or given.
D. Use of deadly mechanical devices
Only allowed if the intrusion in fact constitutes a threat of death or serious bodily
harm. Rationale: Simple trespass or theft isn’t sufficient justification for use of
deadly devices.
Bird v. Holbrook
page 42
D Holbrook placed spring gun in his garden to protect his flowers. No
warning sign was posted. P Bird attempting to recover peahen was severly
injured when he tripped up the wire.
Held: Liable when you use excessive force without posting notice in order
to protect private property.
• D’s only purpose was to injure trespassers; it went beyond deterrence.
• If he’d intended to deter only, he could’ve used other devices which are
not hidden.
• A warning sign would’ve been better deterrent rather than a punishment.
Rationale: very high value placed on human life, even trespassor’s life.
Property isn’t more valuable (usually) than life.
If landowner isn’t home when felony is committed, clear notice is usually
required when use dangerous device, animal, or poison. Katko v. Briney.
E. Using Threats
You can use more threat than you’re actually allowed to legally use in order to
create fright or apprehension in P.
16
Torts to Property
I. Trespass to Land
• Act
• Intent
• Intrusion upon land
• P in possession
• Causation
Even if D’s presence is based upon mistake, ignorance as to whose ownership, boundary
of land, claim of right, or some other matter, he’s liable for tresspass. To recover, P need
prove neither damages or actual harm to the land.
A. ACT by defendant
Volitional movement by defendant of some part of his body which results in an
intrusion onto another’s land or that’s sets such a force in motion.
B. INTENT
To do the act that causes the intrusion onto the land. He doesn’t need to realize the
land belongs to another. He’s liable for intentional entry even though he acts in good
faith, believing himself to be the owner.
Compare negligence: If he doesn’t intentionally set foot on property, but
negligently allows his luggage rack to fly off onto his property, he can be held
liable for damages due to negligence.
Compare strict liability: Dynamite explosion.
C. INTRUSION UPON LAND
Your person intrudes or you cause someone or something else to intrude.
Note: if it’s non-physical in nature, courts will look at it as a nuisance.
D. POSSESSION
E. CAUSATION
Invasion must be legally caused by D’s intentional act or some force set in motion by
Def. Even if the harm wasn’t foreseeable, he’s still liable. Harm may include
emotional distress and any resulting illness or physical harm.
17
II. Defense and Privileged Invasion of Land and Chattels.
“I was allowed to trespass.”
A. Consent
B. Privileged Invasion to reclaim chattels
i. Landowner at fault
ii. Chattel owner at fault
iii. Act of God: storm, wind, floot, etc.
creates an incomplete priviledge to enter the land to reclaim the chattel.
a. extent of priviledge. Recall the priviledge is incomplete in
that def is still liable for actual damage done to P’s land in
the process of recapturing his own chattel. But he’s not
liable for the damage just as a result of his ship being put
there by the wind or deposited there.
b. Causation: was the trespass really caused by the act of God
or by D’s negligence in failing to secure chattel properly?
iv. Mistake does not create even an incomplete priviledge.
D. Public Necessity creates Priviledges Invasion of Another’s Land or Chattles
To invoke the privilege: (1) an immediate and imperative necessity and not just
one that is expedient or utilitarian; (2) an act that is in good faith, for the public
good. The privelege disappears when the act becomes unreasonable under
circumstances. Rationale: when peril threatens the whole community, or so man
people that there is public interest involved, one has a complete defense to act to
protect the public interest.
1. Averting Public Disaster
i. public officials have complete privilege to enter if it reasonably appears
necessary to avert a public disaster.
ii. Extent of priviledge—not liable for any damage
- priviledged to break and enter bldgs, dwellings.
- Force to the person
1. Def may use whatever force nec, including deadly force if the
public disaster warrants it while in the trespass.
2. Detouring around obstructed highway has incomplete privilege to enter
neighboring lands as a matter of a public right.
i. Reasonable need: availability of alternate routes, urgency of the traveler’s
business, can the obstruction be removed?
ii. It’s an incomplete privilege, meaning he’s liable for any actual harm
caused to the land.
iii. No privilege to traveler who caused the obstruction.
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E. Private Necessity creates Privileged Invasion
1. conditions of privilege – where such entry is (or at least reasonably
appears to be) necessary to protect: (1) any person (2) from death or
serious bodily harm OR where it appears reasonably necessary to protect
(1) any land or chattels (2) from destruction or injury.
Idea of reasonableness means person is expected to weigh harm which is
likely to result with the harm it’s likely to prevent.
2. Extent of Privilege
a. force to person or property—may break into houses, fences, bldgs and
even resist the owner if necessary. [Probably not able to use deadly force
since not a public necessity].
Recall Ploof was able to tie boat to Putnam’s island even though Putnam
resisted. See 4. below.
3. Privilege Incomplete
Def is liable for all harm done to the land or chattels.
Rationale: Damage is resulting—not from an act of God—but from
circumstances within D’s control (see Vincent, below).
Vincent v. Lake Erie Transportation
D had to dock onto wharf b/c of violent storm while unloading cargo and
caused damage to the dock.
Held: D is liable for damage to the other guy’s deck even though D had a
private necessity b/c it’s an incomplete privilege.
4. Supersedes owner’s privilege to exclude trespassers
Any force used by landowner to exclude the defendant is wrongful and
then landowner becomes subject to liability for harm caused as he tries to
deny entry.
Rationale: Preservation of life is more important than property rights.
Ploof v. Putnam
Page 53
Storm comes up, forcing P onto D’s island. P ties boat to dock to protect
boat and family. D has his agent untie boat and set it adrift in the storm,
causing substantial damage.
Held: The privilege to invade another’s land b/c of private necessity
supersedes owner’s privilege to prevent the invasion by use of reasonable
force.
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NEGLIGENCE
Act/Omission
Duty
Breach of Duty
Causation
Part I Based on “Duty of Due Care”
I. ACT
The failure to act when you have the duty to do so, normally won’t make you liable
for intentional torts, but for negligence, yes.
II. Duty of Care
A. Reasonable person test
(1) Objective test
Vaughan v. Menlove (1837)
Doesn’t matter if you used your best judgment; we care about what
ordinary, prudent person would have done.
FACTS
Defendant places rick too close to boundary of neighbor’s land. He was
warned it was too close by friends and thought he’d “chance it.”
Eventually the rick burst into flames and burned down Plaintiff’s cottage.
HOLDING
Yes, there is a cause of action for negligence if a person acts in conformity
with his own best judgment, although his actions are less reasonable than
those of a person of ordinary prudence.
POLICY
It would be v difficult administratively to determine in each case whether
a def has acted according to his own best subjective judment.
(2) Standard remains same under all circumstances; just the amt of care and
conduct may vary with the circumstances.
(a) Application :
--Risk of harm is greater, then greater care is required.
--Emergency. Certain conduct becomes reasonable b/c we
remember the guy is in an emergency situation.
--Exception for common carriers. Many cts hold that the duty of
due care is inadequate when the def is a common carrier
transporting passengers for hire. He’ll have a higher standard.
20
B. How to establish the standard
(1) custom—it’s admitted as evidence, but is never conclusive.
a. proof of compliance—not binding, but may indicate that an
adverse opinion will affect many people and that there is
better way to perform the task in question.
b. proof of deviation from custom may help plaintiff
(2) Effect of compliance with a statute—admissible, but not conclusive.
C. To whom does the standard apply? All.
(1) children with age, intelligence, and experience being considered as
part of the circumstances.
a. Exception—when kids are involved in adult activities.
Cars, airplanes, boats.
Daniels v. Evans (1966)
Minor was riding motorcycle when it crashed into Def
Evan’s auto.
HOLDING
Minor will be held to adult standard when he underatkes
a potentially dangerous adult activity.
Rationale: other drivers have no forewarning that a kid is
behind the wheel.
(2) persons with disabilities, take disability into consideration as a
circumstance.
Def is disabled, yes taken into consideration but doesn’t get
him off.
*Roberts v. Ring (1919)
Robert’s son struck while crossing busy street by a car driven
by D Ring, age 77. D’s sight and hearing were defective.
HOLDING
The standard of care should not be lowered to take into acct
def’s physical infirmaties. D should not have been driving at
all.
21
(3) mental deficiency
persons are judged w.o any allowance for their mental deficiency.
Rationale: difficult to determine what kinds of mental aberration
will lessen the care owed, plus the fear of complication tort law the
way the insanity defense has complicated criminal trials.
Breunig (1970) page 182
Thought God wanted her to “fly like Batman” over the truck.
She’s found guilty.
FACTS
Suddenly and without warning defendant was seized by
mental delusion so she couldn’t operate car with conscious
mind.
RESULT
Trial jury found her negligent on theory that she “had
knowledge of her mental delusions.”
RATIONALE
A permanently insane person is liable b/c
1. When one of two innocent persons must suffer the loss,
the loss should be borne by one who caused it.
2. To act as inducement to ones who care for insane person
to take necessary precautions.
3. Don’t want false insanity claims to get pp out of liability.
(4) Knowledge and skills—all persons are held to a certain
minimum standard in their activities. If they’ve achieved superior
skills, they’re held to a standard commensurate with their superior
knowleldge or skills.
1. general rule—held to standard of others in the trade or
profession exercised by members in same or similar
communitities.
2. medical profession
a. modern trend: used to be in same community, but
now it’s same or similar community, like other
professions.
Brune v. Belinkoff (1968)
Medical practitioner req’d to exercise the level of
care and competence possessed by others in the
same specialty of average qualifications.
22
b. Informed consent
Doctors have a duty to disclose relevant
information about benefits and risks inherent in
proposed treatment, alternatives to that treatment,
and the likely results if the patient remains
untreated.
Informed consent, not custom
Canterbury v. Spence (1972), p. 233
FACTS
Plaintiff has back pain and gets an operation. He
recuperates for the first
day, then gets out of bed and falls down, causing years of
spinal
complications.
ISSUE
failure to tell the plaintiff the risks of the operation.
Why does the doctor have a duty to disclose all risks?
Aside: to Mohr v. Williams –
Personal autonomy.
What standard does the court ultimately articulate?
Reasonable doctor and reasonable patient? Yes.
Issues:
• Would this information have been material to this
patient?
• Would this have affected the patient's answer?
• Exceptions -- some patients become unreasonable; puts
a burden on docs.
RULE P. 237 -- "A risk is thus material when a
REASONABLE person, in what the physician knows or
should know to be the patient's position, would be likely
to attach significance to the risk or cluster of risks in
deciding whether or not to forego the proposed therapy."
Exceptions:
1) When patient is unconscious.
2) If disclosure would do the patient more harm than
good.
Don’t forget causation!! Still P has to prove would not
have gone through with operation had she known NOR
would a reasonable person.
23
D. To whom is the duty of care owed?
(1) owed to plaintiffs who are disabled.
P is disabled
*Fletcher v. City of Aberdeen (1959)
P Fletcher fell in excavation ditch dug by the city.
HOLDING
P’s blindness did impose a higher burden of care of the city
b/c city should know its streets are used by blind people also.
The physically disabled are allowed to use the streets also.
(2) you still owe a duty to voluntary intoxicated people b/c you could be deemed
comparatively negligent. You have a duty to protect all pedestrians like in
Robinson v. Pioche.
E. What is the duty owed?
1. Unreasonable risk. Take the care that’s commensurate with the hazard
involved.
Blyth v. Birmingham Water Works* (1856)
FACTS
Def sued for neg when a water hydrant it had nstalled 25 ys earlier
sprang a leak in an extraordinary frost, and water flooded Blyth’s home,
causing damage. D had taken good precautions in installing the hydrant
and took into consideration the frosts that they were used to.
HOLDING
D took the necessary precuations so is not liable. He did all that the
reaosnable person would have done. Just b/c they had a crazy frost, it’s
not D’s fault.
2. In an emergency, def is expected to act differently, just as a reasonable
person would.
Eckert v. Long Island RR (1871) , held the person in emergency
saving third party is not contributorily negligent. Wasn’t rash or
reckless. Didn’t have time to deliberate.
Exception: if D creates the emergency.
3. Foreseeability
4. Reasonableness of the risk
a. Balancing factors: magnitude of the risk, value of objects placed at
risk, value of objects sought and the necessity of goals.
5. Ordinary care
6. Duty owed to two or more classes
24
Cooley v. Public Service Co (1940)
D maintained uninsulated power lines above tel. Lines. During storm
lines broke. P was talking on phone when loud noise caused severe
physical injuries.
HOLDING
If D had taken precautions to help P, then passersby would have been put
in more danger. Where two or more classes of people cannot both be
protected from injury, that class most likely to suffer the greater harm
should be protected, even at the expense of some injury to the other
class.
7. Cost-benefit analysis --Reasonable persons and the recognition of
unacceptable risk
*US v. Carroll Towing Co. (1947)
FACTS
Barge came unloosed and sank. The bargee had been ashore for 21
hours.
HOLDING
Learned Hand. Liability depends upon whether his burden of adequate
precautions (B) is less than the probability that the barge will break
away (P), multiplied by gravity of resulting injury if it does (L).
If B < PL, the barge owner is negligent.
8. But the warning would have been futile
Rinaldo v McGovern* (Page 208)
A golfer is not liable who accidentally misses the fairway and instead
hits the ball of the course onto an adjacent roadway and injures
someone in a car.
1.
A warning of “fore” wouldn’t have done any good to
homeowners so they weren’t negligent. The P in the car wouldn’t
have hear anyhow.
2.
They weren’t fooling around or being reckless.
3.
The rule: if you hit someone on the course, will you be liable? Not
unless you were goofing off. They won’t sue the individual unless on the
course and you didn’t yell “fore.”
III. CUSTOM
A. Intro—custom is always introduced as evidence, but never as conclusive.
Custom not conclusive
25
TJ Hooper Page 215
FACTS
Radio case. You should’ve ha a radio to warn when a storm was coming;
everyone has radios. Appellate ct said, I’m learned Hand and I know BPL
equation. Not everyone has a radio, but you’re going to pay anyhow.
Disrespects custom but picks up efficieny argument.
TJ Hooper is now the law.
Custom should be more persuasive in consensual relationship cases, but not in
stranger cases. Don’t give any weight in stranger—there’s no assumption of
risk.
HOLDING
1. The fact that most tugs were not equipped with receivers is not the final
answer.
2. An idustry may not set its own tests for reasonable prudence.
3. The court must, in the end, say what is required.
4. Tugs towing several barges cannot easily maneauver and are very
vulnerable to bad weather.
5. Although the whole industry has lagged in the installation of receivers, they
are required by reasonable prudence to install them.
IV. Violation of Statutes
A. Defendant’s Defenses:
Contributory neligence & assumption of risk.
26
B. When a plaintiff is injured b/c of a defendant’s violation of a statute, P may obtain
a remedy through a negligence action. She must prove she’s among the class of
persons protected by the statute and same type of injury.
To collect, prove:
In the protected class
Same type of injury, the statute was created for.
Osborne v. McMaster (1889)
Liable for selling poison w.o warning label according to the law.
FACTS
A drugstore clerk employed by Def sold decedent poison w.o warning label as is
req’d by law.
HOLDING
The statute created a duty in D to use reasonable care to protect customers from
taking wrong drug. The statute created such a right to collect. Injury was
proximate cause of death.
V. Negligence per se
Martin v. Herzog (1920)
Ct didn’t decide who was liable, just that it was negligence that P
failed to follow the law with no good excuse.
P was thrown from wagon when D failed to drive on right side of
highway. But P’s wagon didn’t have lights, which was a statutory
violation.
HOLDING
The unexcused violation of a statute is negligence in itslef.
a. Licensing statutes
Brown v. Shyne* (1926)
Chiropractor isn’t shown to be negligent just b/c he wasn’t licensed, as
the statute req’d—he still may have exercised due care just like any
other physician.
FACTS
D was practicing w.o license as a chiropractor in NY, against law
creating a misdemeanor. P became paralyzed after visiting him 9
times.
27
HOLDING
• Negligence can’t be inferred from a chiropractor’s violation of the
statute req’g licensing of medical practitioners.
• The statute is intended to protect the public from unskilled
practitioners. Nevetheless, the violation of the statute was not the
proximate cause of P’s injureis—it had no direct bearing on the injury.
• P must prove that D failed to exercise the care and skill that would
have been exercised by a qulaified practitioner. This may not be
inferred from the fact that D was unlicensed.
b. You have negligence where the violation of a statute creates a hazard that
thte statute was intended to prevent.
Ross v. Harman (1943).
• statute requiring vehicles be locked was not to prevent from theft but
promote safety of public streets by preventing kids, thieves, and others
frommeddling with cars.
Even when you have an intervening actor like in above case: the
unknown person who drove truck away was himself a proximate cause,
but Def is still liable and also deemed proximate cause.
c. Dramshop acts
The seller of alcohol owes a duty to third parties who may be injured by
the person who becomes intoxicated by the alcohol. Vesely v. Sager.
F. Judge and Jury: Question of Fact OR Law?
Negligence per se—should jury be instructed that def was neg as a
matter of law?
RR cases of stop, look, and listen prove that there are no ironclad
rules as to what is negligent conduct; the duty varies with the
circumstances. A Plaintiff should be given the chance to let a jury
decide the extent to which his neglignece contributed to his woe.
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d. Proof of Negligence
i. Res ipsa loquitur—RIL “the thing speaks for itself.”
We can infer that D ws negligent even w.o direct proof when:
• where it’s highly probably that the injury would not have
occurred in the absence of someon’es negligence.
• the indicated source of the negligence is within the scope of a
duty owed by the defendant to the plaintiff, and
• neither P nor any third party appears to have contributed to P’s
injureis
D can introduce evidence to overthrow the inference.
It will apply when:
1. the acciden is thekind that will not normally occur w.o
someone’s negligence
2. The casue of the harm was in the complete control of D [even
if subcontracted out maintenance one escalators], and
3. P did not in any way voluntarily bring about the harm.
Exception: when you’re unconcious and can’t prove one person
had complete controll, then go after the group who had complete
control.
Ybarra v. Spangard
B/c all d’s will be motivated to protect each other, the court departs
form thenormal res ipsa loquitur doctrine in order to smoke out the
evidence.
VI.
Contributory Negligence—duty to exercise reasonalbe care for his own
safety rather than the safety of others.
Butterfield v. Forrester*
P was not ordinarily careful, so he can’t collect.
Plaintiff Butterfieeld was injured when he failed touse ordinary care to
guide his horse around an obstruction that Forrester D had negligently
placed in the road.
HOLDING
P can’t collect even though D was negligent b/c P failed to use ordinary
care to avoid it.
• Causation D must prove--Must prove that whatever it was that P
failed to do actually caused his injuries and was not just some random
other element.
29
• You don’t have a duty to protect your property from someone
else’s negligence. Like in LeRoy Fibre where the landowner had his
straw only 100 feet from train’s path. But the train was negligently
emitting sparks. So train is still liable b/c homeowner has no duty to
move his straw.
VII.
Assumption of Risk—when P voluntarily encounters a known danger and
by his conduct expressly or empliedly consents to take the risk of the
danger. Doesn’t have to include negligence on part of P.
[However, most courts adopting comparative negligence schemes don’t talk
of assumption of risk. Instead they say P had to be contributorily neg or
consented to negligence on part of defendant.]
--can assume risks of
• amusement park rides
• NOT if you accept arbitration agreement at a OB GYN clinic, for
instance b/c it’s like an adhesion contracts.
VIII.
Comparative Negligence
We began with Li v. Yellow Cab Co.
i. Pure Comparative Neg—can collect even if P was more negligent than
D.
ii. 50% rule—only can collect if P’s neg was less than D’s.
Knight v. Jewett* (1992)
Assumption of risk is still a good defense in cases where it says P
determined D no longer owed her any duty.
You can still have total assumption of risk, meaning D no longer owes
P a duty. OR you can have the case wehre D breached a duty of care, P
just decided to encounter the risk involved. In this last case, you’d talk
about comparative negligence.
Rule about co-participant sports: D’s only duty is to avoid reckless or
intentional harm to P.
30
IX. Joint and Several Tortfeasors
Joint tortfeasors—person who either act in concert to cause injury or act
independently but cause a single indivisble injury. That is, two people who
cause a single injury, which can’t be separated into who caused what. If
you’re a joint tortfeasor, you’re jointly and severally liable.
A. Concurrent causes—test is whether your cause was a substantial
factor in bringing about the harm.
*Kingston v. Chicago & Northwestern RR (1927)
FACTS
One fire set by sparks form D, joined with fire of unknown origin and
together they destroyed P’s property. They were of comparatively
equal size, so both were proximate cause of P’s damage.
HOLDING
Each tortfeasor is liable if two separate acts constitute the proximate
cause.
Exception: if second fire was of natural origin, maybe.
B. Alternative Liability Rule
Ex: Two D’s sell bullets to children who then shoot and kill someone.
Summers v. Tice (1948)
Shifts burden to D’s to disprove casusation just as they must disprove
breach of duty in Ybarra.
Only one of D’s shot Summers, but both were negligent.
RULE: Where there is w/o a doubt fault and alternative liability, the
rule of causation is relaxed. Both D’s must’ve been negligent.
C. Apportioning Damages where actual tortfeasor is unknown.
A. Enterprise Liability
Blasting Cap case—industry was concentrated among six
manufacturers, who had collaborated through a trade association in
designing the caps.
Held—All D’s were jointly controlling the risk and if P could
prove if was manufactured by one of the D’s, the borden of proof
as to causation would shift to all D’s.
31
B. Market Share Liability
Sindell v. Abbot Laboratories
FACTS
P sued several drug co.’s who produced DES. P could not prove
which one produced the DES used by her mother.
HOLDING
All mfgrs are liable even though P cannot identify which drug
mfgr produced the drug b/c they were all identical. Use mkt share
to determine liability.
• Alternative liabilitly can’t hold b/c can’t show that a specific
mfgr actually hurt her.
• Enterprise liability doesn’t apply b/c we have more than just a sm
number of mfrs who aren’t colluding on the risk, and b/c pervasive
gov’t standards aren’t involved.
X. Vicarious Liability
A. Employer-Employee
Liable for any tortious acts committed by his employee within the scope of the
employment. Applies whether or not the employer had the actual ability to
control the employee’s conduct.
1. Scope of employement
a. intentional torts are usually outside the scope of employment except
where the employee’s duties involve the use of physical force on others.
Ira S. Bushey & Sons (1968)
Seaman returns drunk to ship and opens the valves on one side of
the dry dock, flooding the vessel and damaging ship and dock.
HOLDING
The Government was held liable for reasonably foreseeable act
within general scope of employment, even though there was no
motivation to benefit the employer.
• Motive test isn’t helpful
• His presence at the ship wasn’t just personal, b/c he was req’d to
return there.
32
B. Independent Contractors
a. Employer will be liable if it did not exercise due care in selecting a
competent contractor.
b. Not held liable for negligence of i.c. even within scope of duties b/c
emp’r doesn’t have control over i.c.
c. Exceptions:
i. Nondelegable duties
• provide emp’ees with a safe place to work
• refrain from obstructing a highway
Hardy v. Brantley (1985)
Hospital is liable for negligence of i.c. physician b/c hospital
holds itself out as providing a service, and the patient expects that.
ii. Dangerous activities—if it’s intrinsically dangerous and ivolves a
peculiar risk of physical harm.
33
CAUSATION
I. Cause-in-fact and Proximate Cause Needed
II. Proof of Causation
A. Expert Testimony—one expert’s testimony is not sufficient proof of
causation for the jury to decide b/c P’s duty to prove is by standard of
more probable than not. Richardson v. Richardson (1986).
B. Lost Chance of Survival
*Herskovits (1983)
FACTS
Failure to diagnose lung cancer in time reduced P’s chances of living
from less than 50% to 14%. Decedent’s estate sues for lost chance of
survival .
HOLDING
Yes this is considered a cause of death tort.
POLICY
Otherwise, medical profession would be let off the hook anytime
someone was less than 50% chance of living.
C. Proximate Cause—really deals with how far public policy will extend
liability to D.
i. remoteness—
1. fire cases
Ryan v. NY Central RR (1866)
[NOT the common rule. Usually holds for consequences,
not just one house.]
P can’t collect when D’s engine negligently set fire and
spread to consumer P’s house. Can’t collect b/c house was
too far away, so not proximate cause. Foreseeability was
key here.
ii.
Violation of a statute
Still have to prove proximate cause even when person violated
a statute. Berry v. The Borough of Sugar Notch
34
iii.
iv.
Rescue
It’s foreseeable that a natural human response will be to try
and rescue.
Kind of danger foreseeable
Conflicting authority:
One view:
Def is liable for unforeseeable consequences of his acts if
some damage is foreseeable, but not the damage which
actually occurred.
Once negligence is established, the negligent party is liable
for all damages, regardless of foreseeability. Foreseeability
just comes into the picture when you’re first determining if
he even was negligent in the first place. Polemis case. But
see Wagon Mound case with exact opposite holding: the
actual damage must be foreseeable.
v.
Duty owed only to foreseeably Plaintiffs
Palsgraf v. Long Island RR* (1928)
No liability b/c D owed P no duty b/c she was not a
foreseeable plaintiff.
vi.
Placing P in position of peril
*Marshall v. Nugent
P was passenger in auto the left road to avoid a collison
with a truck negligently operated by a Socony emp’ee.
The emp’ee suggest that P warn other drivers. While
doing so, P is struck by an auto driven by Nugent.
HOLDING
D is liable even for his continuing consequences of his act
if the jury deems the consequences to be reasonably
foreseeable.
• a negligent tortfeasor can remain liable until the
situation returns to normal. Jury can decide foreseeability
issue.
vii.
Intervening causes—generally don’t relieve D of liability
unless they are both unforeseeable and bring about
unforeseeable results. In those cases, they’d be called
“superseding.”
35
Test: whether the average, reasonable person faced with like
or similar circumstances would have foreseen the likelihood
that the force or cause would intervene.
viii.
Emotional injury—mental or emotional distress claims are
uncommon.
a. Defenses—deny the link b/w D’s acts and the
distress or at least the proximate cause.
b. No recovery based on fright in Mitchell, but in
Dillon v. Legg, they dispensed with the “zone of
danger” rule.
c. Molien, ct awarded damages to P when his wife
was misdiagnosed with syphallis and marriage was
dissolved as a result.
The emotional distress is clear and capable of proof,
so physical harm is unnecessary.
d. Two common ways to recover when you don’t have
accompanying physical harm.
i. Mishandling of a corpse
ii. Misdelivery of a death notice.
36
DUTIES to DEFENDANTS
I. No duty to warn
--Buch v. Amory
No duty to warn 8 yr old of patent dangers on the land when he trespassed onto
Amory’s mill where dangerous weaving machinery was in operation.
Attractive nuisance is N/A to machinery in a factory.
But where landowner is aware of presence of infant, he should take minimal
steps to put child out of the reach of dangerous machinery.
III.
Misfeasance
Montgomery v. Nat’l Convoy and Trucking (1937)
They weren’t orignally neg (their trucks just stalled), but then became neg
when failed to place warning signs.
And there is sufficient causastion that if they’d taken precautions, lady wouldn’t
have hit them.
IV. Gratuitous Undertakings
Coggs v. Bernard
D agreed to move casks of brandy belonging to P. No consideration was given for the
contract. D damaged the casks while moving them.
HOLDING
He’s liable for the damages even though it was an unenforceable contract under the
tort of gratuitous underatkings. P entrusted D with certain goods and D accepted this.
A. Reliance on a volunteer
Erie RR v. Stewart (1930)
D wasn’t req’d to have an attendant at crossing, but voluntarily had stationed
an attendant and P knew of this practice. One day, he wasn’t there and so
failed to warn P, and a truck hit P by Erie’s train.
HOLDING
D’s negligent for his failure to have an attedant w.o placing a sign of
discontinuance. P relied on one being present. The co. had established itself
for this custom.
37
B. Misfeasance
Marsalis v. LaSalle (1957)
Neighbor promised to keep cat locked up (didn’t have to promise, but did).
So when cat escaped and bit P, D is liable.
C. Third Party Duty
V. Special Relationships
A. Landlord/Tenant
Kline v. 1500 Mass Ave Apt (1970)
Kline (P) was seriously injured when assaulted and robbed while in the common
hallway of a lg, unguarded office-apartment owned by D.
HOLDING
A duty is placed on the landlord to take steps to protect tenants from foreseeable
criminal acts committed by third parties. The risk of criminal assault and
robbery on any tenant was clearly predictable. It was a risk he had specific
notice of and especially with increasing frequency.
POLICY
The ll is the only person able to take the necessary acts of protection req’d, he’s
obligated to minimize the risks to his tenants.
38
STRICT LIABILITY
Ultrahazardous or Abnormally dangerous Activities—
The question isn’t whether it’s lawful or proper to engage in the dangerous
activity, but who should bear the cost of any resulting damage.
Those abnormal to the area, which necessarily involve a risk to persons, land, or
chattels, and which cannot be eliminated by the use of utmost care.
*Rylands v. Fletcher (1868)
On second appeal
A person who brings on his land something unnatural that will cause harm
to another if it escapes has an absolute duty to prevent its escape.
I. Causation
Madsen v. East Jordan Irrigation* (1942)
While reepairing its canals, East Jordan Irrigaton engaged in blasting. P
reasied mink about 100 yds from the canal. B/c of blasting, mink became v
excited and killed 230 of their offspring.
HOLDING—Restatement may decide this case differently.
Strict liability is not appropriate b/c damages were only indirectly caused
by blasting operations. Causation problem. Lacking direct causation with
the mink as the intervening actor.
II. Shipment of ultrahazardous chemicals
Indiana Harbor Belt RR v. American Cyanamid* (1990)
Clark thinks perhaps it should’ve been strict liability
HOLDING
Not a case for strict liability b/c negligence is perfectly able to remedy
the accidental spillage of acrylonitrile from the rail cars. The leak in this
case was not caused by the inherent properties of acrylonitrile but by
carelessness. When a lack of care can be shown, they’re adequately
deterred by threat of laibility for negligence. Here, the shipper didn’t
have much control.
Six factors relevant to strict liabilty, b/c the following are deemed
dangerous activities:
1) high risk
2) probability of danger
3) accidents can’t be prevented by exercise of due care.
4) not common usage of the activity, showing it wasn’t a nec highly
39
valued activity. The other explanation is a social contract theory:
reciprocity rationale perhaps. I don’t get to trample your vegetables, so
you don’t get to do it to mine.
5) activity was carried out in poor location.
Why not negligence? Clark: And we know neg as a rule doesn’t do a
good job of forcing pp to look at where and how often, etc.
Activity level—it’s v important, but how to measure ideal activity level
when judging on a case-by-case basis?
40
NUISANCE
D’s interference wth a plaintiff’s right or with a plaintiff’s use and enjoyment of
property. Utility versus harm.
I.
I. Types of Harms
A. Deprivation of use or enjoyment
B. Temporary diminution in value
C. Permanent diminution in value
D. Personal discomfort
E. Injury to health
E. Reasonable expenses
II. Basis of Liability
A. Negligence
B. Strict Liability
a. Abormally dangerous activities, defined by:
i. High degree of risk or harm to person, land, or property
ii. Likelihood that resulting harm will be great
iii. Inability to eliminatie risk through reasonable care
iv. Extent to which activity is a matter of common usage
v. Inappropriateness of an activity to the place where it is carried on
vi. Extent to which value of activity is outweighed by its dangerous
attributes by the community
C. Intentioanl Conduct
*Morgan v. High Penn Oil (1953)
P owned a restaurant and trailer park abutting D’s oil refinery which
periodically emitted nauseating gases and odors. Often casued those
residing on P’s property to become ill.
HOLDING
Even though no neg in construction or operation is shown, D’s refinery is
a nuisance in fact.
41
III. Light and Air
Fontainbleau Hotel (1959)—finds for D
D began bldh a 14-story addition, which would cast a shadow on the area used
for sunbathing by P’s guests. P sought injuction.
HOLDING
Landowner is not going to be issued an injunction to keep him from building the
addition b/c property owner doesn’t have the right to freeflow of light and air
across adjoining property of his neighbor.
IV. Standard for Measuring Offensiveness
Rodgers v. Elliot* (1888)
Mgr of a church regularly rings the bell.
HOLDING
To be a nuisance, it must be offensive to a reasonable person of ordinary
sensitivities.
V. Coming to the Nuisance
*Ensign v. Walls (1948)
St. Bernards
HOLDING
you can still have a nuisance even when P “came to the nuisance.”
VI. Can order permanent damages instead of an injunction where the business is a
nuisance but it is vlaued at higher level than the relatively sm damages suffered.
Boomer v. Atlantic Cement
VII. Defenses to Negligence
A. Contributory Negligence—where nuisance is based on neg only.
B. Assumption of the risk—where the nuisance is based on neg and strict liability.
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Products Liability
I. Modern RUle
MacPherson v. Buick Motor
While driving car, wooden wheel comes off b/c it had defective wooden spokes.
Wheel wasn’t made by D car manufacturer, but by a subcontractor. D could’ve
discovered the defect with reasonable inspection.
HOLDING
P can recover against mfr even though it had the wheel made by someone else.
• a car is a thing of danger.
MacPherson rule has been extended to cover following situations:
 Damage to the product sold resultng from its own defect.
 Damage to reasonably foreseeable nonusers in the vicintiy of the expected use
of the product.
 Damage casued by defectws in design as opposed to defects in mfr.
 Damage to property in the vicinty of expected use. Where the product itself is
dangerous to life and limb b/c it is negligently made.
 Liability for products negligently manufactured but posing a foreseeable risk
to property only.
 Liability of a processor of a product at an intermediate stage.
 Liability of one who sells another’s product as his own (including dealers,
distributors and any other party in the chain of sale).
II. Causation
Inherently dangerous products:
Both manufacturers are liable for defects and dealers.
Normal use products:
Dealer is not obligated to inspect products unless under strict liability or
warranty.
Absolute duty to conform to seller’s design.
III. Product Defects
A. Construction defects
*Pouncey v. Ford Motor Co. (1972)
P injured when the fan blade on his car engine broke loose and struck him.
The metal used was defective, but D said it wasn’t.
HOLDING
There was sufficient evidence—even though experts contradicted each
other—for jury to find D negligent.
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B. Apparent Risk
*Micallef v. Miehle (1976)
P employed to run printing press. To remove imperfection, P stuck hand in it
and his hand was pulled into the machine. Sued b/c no guardrails were on the
machine.
HOLDING
Mfgr is liable b/c he’s obligated to exercise the degree of care in its design so
as to avoid the unreasonable risk of harm that might be caused to anyone
using the machine normally.
Still maj view: where object’s danger is obvious, the product is not
unreasonably dangerous.
C. Defective Design
*Volkswagon v. Young (1974)
Young stopped his Beetle at stoplight. IT was rearended and he was thrown
into rear seat of VW where he died.
HOLDING
The intended use of a car includes accidents and the mfr is liable for injuries
sustained in the second collision.
*Barker v. Lull Engineering
P was operating high-lift loader on uneven terrain.
HOLDING
Strict Liability in tort does not apply to design defect cases.
In determining whether it’s defective, the jury must consdier:
1.The gravity of the danger
2. Likelihood that danger will occur
2. feasibility of a safer design
3. cost to make it safer
4. adverse consequences of changing the design
Consumer Expectation Test
Linegar v. Armour of America*
HOLDING
Cannot recover if you’re a person who, while wearing a bullet-resistant vest,
was killed when a bullet entered the body at an area not covered by the vest,
against the mfr of the vest under a theory of strict liability for defective
design.
Obviously, consumers didn’t expect the vest to protect areas not covered.
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D. Failure to warn
May be negligence, may be strict liability
MacDonald v. Ortho Pharmaceutical Corp (1985)
Mfgr should have warned the consumer, not just the Dr. like is normally the
case. The patient might only visit the dr. once per year and the birth control
pills creat a high risk of injury due to stroke.
Although the warning met the FDA guidelines, it wasn’t good enough.
E. Defenses
Misuse: abnormal use, but not foreseeable misuse.
Comparative fault
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