BDF
TORTS SUMMARY 2006 (Allen)
NEGLIGENCE, GENERAL ............................................................................................ 2
DUTY ................................................................................................................................. 2
The Reasonable Person Standard ......................................................................... 2
Statutes/Custom ........................................................................................................ 3
Special Duties ............................................................................................................. 3
Medical Malpractice .................................................................................................. 3
Affirmative Duties .................................................................................................... 4
Duty to Third Parties .............................................................................................. 4
Duty of Landholders ................................................................................................. 4
No Duty Rules ............................................................................................................. 5
Emotional Harm .......................................................................................................... 5
Economic harm ............................................................................................................ 6
BREACH ............................................................................................................................ 6
Constructive Notice .................................................................................................. 6
Res Ipsa Loquitor ...................................................................................................... 6
CAUSE IN FACT ........................................................................................................... 7
PROXIMATE CAUSE .................................................................................................... 7
Superseding Cause ..................................................................................................... 7
AFFIRMATIVE DEFENSES TO NEGLIGENCE .................................................... 8
Contributory Negligence .......................................................................................... 8
Comparative negligence ............................................................................................ 8
Assumption of Risk .................................................................................................... 8
Pre-emption ................................................................................................................. 8
STRICT LIABILITY ..................................................................................................... 8
Defenses to Strict Liability ................................................................................... 9
PRODUCTS LIABILITY ............................................................................................... 9
Emotional Distress ................................................................................................... 10
Manufacturing Defects .......................................................................................... 10
Design Defects ......................................................................................................... 10
Warning Defects ...................................................................................................... 10
Products Liability for Pharmaceutical Companies.......................................... 11
Products Liability for Services ........................................................................... 11
DEFENSES TO PRODUCTS LIABILITY .............................................................. 11
Assumption of Risk .................................................................................................. 11
Comparative Responsibility ................................................................................... 11
BDF
NEGLIGENCE, GENERAL
To establish a prima facie case for negligence a plaintiff must show my a preponderance of the
evidence:
1. that the defendant had a duty
2. that the standard of care under that duty was breached
3. that the defendant’s conduct was the cause-in-fact
4. that the defendant’s conduct was the proximate cause
5. that the plaintiff suffered injury
DUTY
Duty can be described as a policy decision to hold someone liable for an injury. It is determined
after the fact according to a standard of care.
NOTE: A broad conception of duty would include a duty of reasonable care even to
unforeseeable plaintiffs. If this is the case, then a duty may be owed to anyone injured by the
negligent act. (see Andrew, J. dissenting in Palsgraf v. Long Island Railroad). If this is the case, then
proximate cause becomes the limited factor.
NOTE: A more limited vision of duty would only hold a defendant liable for injuries to
foreseeable plaintiffs. (See Cordozo, J. Palsgraf v. Long Island Railroad)
The Reasonable Person Standard
The default standard of care for negligence actions is that of a “reasonable person under the
circumstances.”
Factors indicating reasonableness:
1. foreseeable risks of injury
2. the extent of the risks posed by the person’s conduct
3. the likelihood that a risk will cause harm
4. whether alternatives to the person’s conduct would achieve the same purpose with less
(or greater) risk
5. the costs associated with various courses of conduct.
The reasonable person standard is an objective standard. It does not depend on what the
defendant believed was reasonable but on how a reasonable person of ordinary prudence would
act in the same or similar situation.
The standard is that of a reasonable person under the circumstances. The standard of care can be
extrapolated to cover those with similar circumstances (disability, child, etc.).
EXCEPTIONS: those with mental disabilities are held to standard of person with average
intelligence; children engaged in adult activities held to adult standard.
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Hammontree v. Jenner
See Brown v. Kendall where Δ allowed to recover even when Πs accident causing behavior
was unintentional when the Π failed to exercise “ordinary care.”
BDF
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Adams v. Bullock, where court held that trolley company could not be held liable for
electrocution of 12-year-old boy waving eight foot wire along trolley bridge because the
event was not reasonably foreseeable.
United States v. Carroll Towing Co.: duty where B<PL
See Bethel v. New York Transit Authority where court holds that common carriers should
only be subject to reasonable person standard. This is the current trend in the law.
Statutes/Custom
A person is negligent per se when they injure someone while engaged in an activity prohibited by
statute and the statute was crafted to protect the victim. (Martin v. Herzog). Elements of
negligence per se: (1) statutory duty clear (2) violation is within statutory purpose (a) to prevent
specific type of injury or (b) to protect a specific class.
Simple violation of a statute is not negligence per se when the statute was not intended to protect
the victim injured or if following the statute would itself have caused harm (Tedla v. Ellman)
Proof of deviation from a custom may be used as evidence to establish that plaintiff has breached
a duty of care if the custom itself is reasonable (Trimarco v. Klein)
Special Duties
Common carriers are often held to a higher standard of care: a duty of “utmost” care, but this
special duty is slowly being abandoned in favor of the reasonable person standard. (Bethel)
Respondeat Superior: Employers are held strictly liable for the acts of employee acting within the
scope of their employment. Three factors determine scope of employment:
1. the employee must be about the employer’s business and duties assigned by the
employer.
2. the employee’s conduct must occur substantially within the hours and ordinary spatial
boundaries of the employment.
3. the employee’s conduct must be motivated, at least in part, by the purpose of serving the
employer’s interest
The employers of independent contractors are generally not liable unless the plaintiff can
reasonably believe that the contractor is actually an employee or the independent contractor is a
hospital employee and the plaintiff does not have option to go elsewhere
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See Christenson v. Swenson were employee’s negligent injury of plaintiff in traffic accident
while getting lunch at café adjacent to workplace was enough to trigger respondeat
superior.
See Roessler v. Novak where hospital held liable for radiology scans negligently performed
by independent contractor.
See Andrews v. United Airlines where airline held to standard of “utmost care”
Medical Malpractice
BDF
Physicians must meet standard of a reasonable person under the circumstances. For doctors,
these “circumstances” include that of a reasonable doctor anywhere in the country. (Sheely v.
Memorial Hospital.
Doctors have duty to inform patient of alternative methods of treatment (Matthies v.
Mastromonaco)
There are three approaches to recovery for negligence that results in conception and birth
(wrongful birth suites)
1. limited recovery for cost directly related to pregnancy
2. full recovery for costs directly related to pregnancy and costs of child-rearing
3. modified full recovery for costs directly related to pregnancy and costs of child rearing
minus benefits of having a child.
Full recovery is more likely when the child suffers from a birth defect.
Affirmative Duties
There is generally no affirmative duty to act to prevent harm to another party (Harper v. Herman)
Exceptions: situations where affirmative duty imposed
1.
2.
3.
4.
5.
“Special Relationships”
a. individuals engaged in common social venture (Farwell v. Keaton)
b. the therapist/patient relationship when therapist is aware of specific, imminent
harm (Tarasoff v. Regents of the University of California)
A duty to act if one has caused harm (negligent or non-negligent)
Duty to warn when one has created a heightened risk of injury (negligent or nonnegligent) (Simonsen v. Thorin)
Duty to correct a misrepresentation (Randi W. v. Muroc Joint Unified School District)
Duty of a landowner towards invitees: landowner must inspect property for unknown
harms.
Duty to Third Parties
Negligent entrustment occurs when (Vance v. Wilson):
1. a person supplies directly or through a third party
2. a chattel for the use of another
3. whom the supplier has reason to know to be likely because of his youth, inexperience or
otherwise
4. to use the chattel in a matter involving unreasonably risk of physical harm to himself and
others whom the supplier should expect to share in or be endangers by its use.
Duty of Landholders
Common law duty was dependent upon the nature of the party’s visit (Carter v. Kinney)
1. trespass—no duty to trespassers
2. licensee—landowner has duty of a reasonable person and a duty to warn of and repair
known hazards.
BDF
3.
invitee—landowner has duty of a reasonable person and a duty to inspect the property
for known and unknown hazards.
Businesses may have a duty to prevent the foreseeable acts of third parties. Foreseeability can be
determined by different tests (Posecai v. Wal-Mart)
1. specific harm rule
2. prior similar incidents test
3. totality of circumstances test
4. balancing test
Other jurisdictions simply impose the standard of a reasonable person (Heins v Webster County)
No Duty Rules
Courts will not impose a duty when doing so would result in “crushing liability” (Strauss v. Belle
Realty)
Social hosts have no duty to third persons for the actions of their guests. (Reynolds v. Hicks)
At common law, the government had sovereign immunity from suit. Government can now be
held liable for “ministerial acts”—acts that require adherence to a compulsory governing rule—
but not for discretionary acts.
 See Lauer v. City of new York in which city was not held liable after medical examiner
negligently failed to notify police that death was not a murder
 See Friedman v. State of New York where state’s decision not to provide median barriers
that could have prevented an accident was held to be negligent ministerial act because
government had itself determined need for barriers.
The Federal Tort Claims Act allows suits against the government in Federal Court in the form of
a bench trial. The FCTA exempts discretionary acts. Test to determine if an act is discretionary
(Cope v. Scott):
1. Step one: determine if a federal statute, regulation or policy specifically prescribed a
course of action. If so, employee had not choice and hence no discretion.
2. Step Two: determine whether the discretionary act is of the nature an quality that
congress intended to shield from liability.

See Riss v. State of New York in which City of New York not held liable for injuries caused
to plaintiff by ex-lover who hired man to throw acid in her face even though plaintiff had
specifically requested protection from police
Emotional Harm
The question is whether the plaintiff has a duty to avoid emotional harm
Majority view: recovery for economic harm possible if the plaintiff was in the “zone of danger”
and the emotional harm results in physical injury.
 See Falzone v. Bush (“zone of danger”)
 See Metro-North Commuter Railroad v. Buckley (no present physical injury)
 See Johnson v. Jamaica Hospital (foreseeability alone does not establish duty).
BDF
Minority view (CA): recovery for emotional distress that is reasonably foreseeable. Factors that
determine foreseeability
1. whether the plaintiff was near the scene of the accident
2. whether the shock resulted from a direct emotional impact upon the plaintiff from the
sensory and contemporaneous observance of the accident, as contrasted with learning of
the accident from others after its occurrence.
3. whether plaintiff and the victim were closely related
A minority of states allow recovery even if the emotional harm does not manifest itself in
physical injury (Gammon v. Osteopathic Hospital of Maine)
Economic harm
The common law prohibits recovery for purely economic losses when there is no underlying
physical injury.
BREACH
The “Hand Formula”: breach occurs when B<PL; when the burden of avoiding the accident is
less than the cost of the product of the likelihood of the injury and the size of that injury (United
States v. Carroll Towing Co.)
Constructive Notice
If plaintiffs had or should have known of the situation that caused the accident, then these
circumstances can be used as evidence of breach of the standard of care (Negri v. Stop and Shop,
Inc.)
Elements of constructive notice (Gordon v. American Museum of Natural History)
1. defect must be visible and apparent
2. defect must exist for sufficient length of time prior to the accident to allow discovery and
remedy.
Res Ipsa Loquitor
Res Ipsa Loquitor is an evidentiary rule in the which the plaintiff can use the fact of an accident’s
occurrence as proof that negligence has occurred. (Byrne v. Boadle)
Elements of Res Ipsa Loquitor
1. Accident must be of a type that normally does not occur absent negligence (McDougald v.
Perry)
2. the defendant must have control of the instrumentality that caused the accident.
3. the plaintiff nor a third party must have contributed or caused the plaintiff’s injuries
Once elements are met, the defendant has the burden of proving that she was NOT negligent.

See Ybarra v. Spangard where court found exclusive control in a group of physicians even
though plaintiff could not determine actual cause because of anesthesia.
BDF
CAUSE IN FACT
The standard test to establish cause-in-fact is to ask if the defendant’s conduct is a “but for” cause
of the plaintiff’s injuries.
Other tests for cause in fact (when but-for test isn’t enough)
1. reasonable certainty—causation established if defendant’s conduct reasonable certain to
have caused the injury
2. substantial factor. A factor is substantial when
a. defendant’s conduct is “but for” cause
b. the negligence was causally linked to the harm
c. the defendant’ s negligent act or omission was proximate cause
When multiple defendants may have caused the harm they may be held “joint and severally”
liable or concurrently liable
Market-share liability has been imposed for DES cases.
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See Stubbs v. City of Rochester (“Hemlock” water system)
See Zuchowicz v. United States (substantial factor test)
See Summer v. Tice (hunting accident)
See Alberts v. Schultz (loss of opportunity)
See Hymowitz v. Eli Lilly & Co. (DES)
PROXIMATE CAUSE
Proximate cause is a public policy component of the negligence action. It asks if the conduct is the
sort that the court would like to hold the defendant legally liable for the conduct. The elements of
proximate cause are thus (1) “but for” cause (2) policy rationale
J. Cordozo would limit liability to foreseeable plaintiffs. J. Andrews would impose a duty of
reasonable care extending to unforeseeable plaintiffs and would then limit liability at the
proximate cause level of analysis. (Palsgraf v. Long Island Railroad Co.)
Proximate cause decision tree:
1. Is the plaintiff’s injury reasonably foreseeable? If no, then no proximate cause. If yes, then
2. defendant is liable for the injury sustained, even if is more serious than expected or of a
different type (“eggshell plaintiff” rule and Wagon Mound Rule”
defendant is liable even if the injuries took place in an unforeseeable manner (what matters is
that the injury itself was foreseeable).
Defendant is liable even if the injury is unlikely or improbable—if it was foreseeable then
proximate cause can be found.
Superseding Cause
A defendant is not liable for the superseding acts of third parties if (Doe v. Manheimer)
1. the harm is intentionally caused by the third party
2. the harm is not within the scope of the risk created by the defendant’s conduct.
BDF
AFFIRMATIVE DEFENSES TO NEGLIGENCE
Contributory Negligence
Contributory negligence occurs when the plaintiff’s conduct has contributed to the injury. To
establish contributory negligence, the defendant must show, by a preponderance of the evidence,
that plaintiff’s conduct establishes all the elements of a normal negligence claim.
If a defendant was not just negligent but reckless or willful, then contributory negligence is not a
defense.
The last clear chance doctrine would allow a plaintiff to recover despite contributory negligence
if the defendant had, but failed to utilize, the last clear chance to avoid injury to the plaintiff.
Comparative negligence
Most states have passed comparative negligence statutes that compare the negligence of the
plaintiffs and the defendants and assigns damages based on an apportionment of fault.
Assumption of Risk
Assumption of risk relieves the defendant of liability if the plaintiff is found to have consented to
the risk of injury.
Elements of assumption of risk
1. plaintiff must have knowledge of facts
2. plaintiff must know the condition is dangerous
3. plaintiff must voluntarily expose herself to the danger
Many states will have held that an express waiver of liability is void as against public policy
(Tunkl v. Regents of the University of California)
Other states use a “totality of the circumstances” test to determine whether a waiver is valid
(Dalbury v. S-K-I, ltd.)
The firefighter’s rule holds that a landowner is not liable for injuries sustained by firefighters or
police officers as a result of their activities on the property.
Pre-emption
In certain cases, a defendant may argue that a tort action is overridden by legislative or
regulatory standards intend to pre-empt tort claims (i.e., Federal Motor Vehicle Safety Act) (Geir
v. American Honda Motor Company, inc)
STRICT LIABILITY
When a party is subject to strict liability, he or she is held liable for an accident they have causes
regardless of whether they acted according to a standard of reasonable care (Rylands v. Fletcher)
BDF
Factors used to determine whether to impose strict liability (see Indiana Harbor Belt Railroad Co. v.
American Cyanamid Co.)
1. existence of a high degree of risk of some harm to the person, land, or chattels of others
2. likelihood that the harm that results from it will be great
3. inability to eliminate the risk by exercise of reasonable care
4. extent to which the activity is not a matter of common usage
5. inappropriateness of the activity to the place where it is carried on
6. the extent to which its value to the community is outweighed by its dangerous attributes
A defendant will be subject to strict liability if they are engaged in an “abnormally dangerous
activity.” An activity is abnormally dangerous if
1. the activity creates a foreseeable and highly significant risk of physical harm when
reasonable care is exercised by all actors
2. the activity is not a matter of common usage
Activities for which strict liability is often imposed
1. trespass by livestock
2. possession of wild animals
3. blasting
4. possession of abnormally dangerous domestic animals
5. physical harm caused by aircraft
policy
1.
2.
3.
4.
5.
6.
rationales for strict liability
loss spreading
loss avoidance (deterrence)
“least cost avoider principle”
loss allocation (internalization
administrative efficiency
fairness
Defenses to Strict Liability
Assumption of Risk
Assumption of risk bars recovery for harm on a strict liability theory
Contributory Negligence
Contributory negligence is NOT a defense to strict liability for someone how carries on an
abnormally dangerous activity.
BUT if the contributory negligence consists of assuming the risk, then recovery may be barred
PRODUCTS LIABILITY
“strict” products liability holds that the manufacturer or seller of a product ought to be held
strictly liable for defects in the product that cause physical injury.
Strict liability for defective products is supported by the same policy rationales that support strict
liability
BDF
Elements of Products Liability
1. One who sells any product
2. in a defective condition
3. unreasonably dangerous
4. is subject to strict liability for physical harm
5. caused
6. to the ultimate user or consumer or to his property
Emotional Distress
Emotional distress claims have been granted when the user of a machine suffers emotional
distress viewing an accident (Bray v. Marathon Corp.)
Manufacturing Defects
A manufacturing occurs when the product does not meet the standards set by the manufacturer.
It is the only really “strict” products liability in that injury alone triggers liability. (Welge v.
Planters Lifesavers Co.)
Design Defects
A design defects case has traces of a negligence claim because, under the Second Restatement, the
design must be “unreasonably dangerous.”
Consumer expectations test: the court will ask if the product’s performance feel below the safety
expectation of the ordinary consumer. (Barker v. Lull Engineering co.
Risk/Utility test: the risk utility tests balances the risk of the adopted design against its utility
(Camacho v. Honda Motor Co, Ltd.)
The “crashworthiness doctrine” states that an automobile design is presumed to be defective the
car is not designed to provide reasonable protection against foreseeable collisions.
Reasonable Alternative Designs (RADs): under the Third Restatement, a plaintiff must prove that
a reasonable alternative design would have reduced the risk of foreseeable harm.
Defenses
1. “open and obvious” (Camacho v. Honda Motor Co., Ltd)
2. simple too rule
3. state of the art defense
4. government contractors
Warning Defects
A failure to warn claim is close to a negligence claim. The plaintiff must show that the
manufacturer breach a duty of reasonable care to warn users about the dangers associated with
the product.
Factors to consider in determining whether a warning is needed
1. the extent of the risk
2. the likelihood that it will arise
BDF
3.
4.
5.
the user’s likely understanding of the danger
the means available to convey a warning
the likelihood that too many warnings will decrease the effectiveness of each additional
warning
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See Hood v. Ryobi America Corp where court held that existing warning was adequate and
additional warning might actually cause more harm by diluting the effectiveness of
existing warnings.
Defenses
1. “open and obvious”
2. state of the art (Vasallo v. Baxter Healthcare Corporation)
Products Liability for Pharmaceutical Companies
The state of the art defense will allow a defendant to escape liability if the manufacturer did not
have the ability to reasonably foresee an injury at the time the drug was manufactured, despite
reasonable testing.
The “learned intermediary doctrine” will allow defendant manufacturer to disclaim liability on
the grounds that the appropriate warnings have been provided to doctors, who in turn must
advice their patients of the risks (Edwards v. Basel Pharmaceuticals) Exceptions to the doctrine:
1. mass immunizations
2. FDA mandates
3. direct advertising by the defendant to the consumer
Products Liability for Services
The general rule is that products liability does not apply to services (but negligence does).
Medical devices are often said to be delivered as part of an overall package of medical services
that are not subject to strict liability (Royer v. Catholic Medical Center)
DEFENSES TO PRODUCTS LIABILITY
Assumption of Risk
If the user discovers the defect and is aware of the danger but nevertheless proceeds
unreasonably to make use of the product and is injured by it, he is barred from recovery
Comparative Responsibility
Many states will compare a plaintiff’s negligence with a defective design and assign fault based
on an apportionment of responsibility for the accident (General Motors Corporation v. Sanchez)