I.
Intentional Interference With Person or Property
A. Intent
A person acts with the intent to produce a consequence if:

1.
The person has the purpose of producing that consequence
2.
The person has knowledge to a substantial certainty that the consequence will
ensue form the person's conduct
Transferred Intent

When one attempts any one of the five torts that fall within the trespass writ:

battery, assault, false imprisonment, trespass to land, and trespass to chattels and
accomplishes any one of the five, he is liable even if the plaintiff was not the
intended target
Talmage v Smith

Insanity

Does not negate intent. If an insane person by his acts does intentional damage to

the person or property of another he is liable for that damage in the same
circumstances in which a normal person would be liable.
o
All insanity is not irrelevant, must be able to prove that the insane person
formed the requisite intent
o
The person in charge of the mentally ill person may be found to be
responsible
McGuire v Almy

Infancy/Kids

Must be proven that the act was performed with the purpose of producing the

consequence or that the defendant knew to a substantial certainty that the
consequence would occur
Garret v Daily

Mistake

If a defendant intends to do acts which would constitute a tort, it is no defense that

the defendant mistakes, even reasonably, the identity of the property or person he
acts upon or believes incorrectly there is a privilege.
o
Ranson v Kitner - A shoots B’s dog, reasonably believing it is a wolf, A is liable
to B, assuming B has not wrongfully induced the mistake.
B. Battery
Rule

Act: Harmful or Offensive Touch

Intent: Touch must be the purpose or defendant must know to a substantial

certainty touch would occur
Fisher v. Carrousel Motor Hotel – snatching plate

a. Touch to something connected to someone or closely identified with someone
counts as touching person.
b.
Battery originally meant to protect from physical harm, but in this case the harm was
construed to be verbal and mental.
c.
Must be an offense to a reasonable person.
d.
Context can play a large role.
Harmful Touch - Restatement §13 - liable if:

a.
Acts intending to cause a harmful or offensive contact with the person of the other
or a third person and
b.
Harmful contact with the person of the other directly or indirectly results
Offensive
Touch - Restatement §18 - liable if:

a.
Acts intending to cause a harmful or offensive contact with the person of the other
or a third person and
b.
Offensive contact with the person of the other directly or indirectly results
Plaintiff does not need to be conscious of the harm for battery to lie
STDs - Defendant must know to a substantial certainty that the sex will be harmful
Assault
Rule

a.
Overt Act
o
An attempted battery
b.
Intent
o
Purpose to cause apprehension of an imminent harmful or offensive contact
o
Knowledge to a substantial certainty that the act will result in the
apprehension of an imminent harmful or offensive contact
c.
Apprehension
o
The victim must perceive the harmful contact is about to occur
o
Doesn't have to be fear, just an awareness
o
Adds another state of mind, must also figure out what P thinks
d.
"Apparent and present ability” to create such a touch (usually decided by the
jury).
o
Western Union Telegraph v Hill
Threat

a. Not necessary that the act be threatened against P, just that P perceives the threat of
battery to himself.
b.
So long as P perceives a battery, it is an assault.
Reasonableness

a. It is subjective, so it still counts if P is overly sensitive.
Words

a.
Words alone are not enough.
b.
Words may give sufficient threatening character to an otherwise inoffensive
movement.
c.
The more words, the less touch required for liability, and vice versa.
Apprehension of future battery doesn’t count, threat must be imminent.

Conditional Threat

o
A threatens to bash B unless he hands over his wallet - Assault
o
A says to B "If not for the presence of this police officer I would kill you!" No
Assault


C.
Not every battery constitutes an assault (Sleeping Beauty wasn’t aware).
Practical joke or intent to be helpful may be an assault.
D. False Imprisonment
 Rule
a. Act/Omission
b. Intent
a. Must be purpose or know to a substantial certainty that there is physical
confinement
c. Confinement/Physical Restraint
 Awareness
o Courts are divided on this issue
o Consciousness is a general requirement for FI
o Just because you don't remember now doesn't mean you weren't conscious then
 Parvi v City of Kingston - plaintiff was drunk at time of confinement in police car
and no longer can recall the incidence, still false imprisonment
Nature
of
Confinement

o Must be definite physical boundaries
 May be as small as a car or large as a state
o Must be no known reasonable means of escape


Escape is unreasonable if it involves exposure of the person, material harm, or
danger of harm to another
o When does someone have an obligation to provide means of escape?
 Gas station hypo - refuse to sell leaving person stranded
The person needs to have some connection to the plaintiff's situation
Commercial establishments have right to refuse service
 Mistreatment
o No actual damages need be proved
o You can be treated like a king while confined and still FI, point is against your will
Shopkeepers

o Have special privilege to detain suspected shoplifters for awhile
 False Arrest
o If convicted of crime arrested for, FI does not lie
 Enright v Groves - FI b/c plaintiff was arrested for failure to show license, not
for dog w/o leash
 In GA failure to produce license would be obstruction of justice in a
police investigation 16-10-24a
Threat
of
future
actions
is not enough to constitute FI

 Moral or social pressure to remain in a place does not constitute FI
E. Intentional Infliction of Emotional Distress
 Four Elements
o The conduct must be intentional or reckless
o The conduct must be extreme and outrageous
o There must be causal connection between wrongful conduct and emotional
distress
o The emotional distress must be severe
 Intent
o Usually must be intentional, but can be reckless
 Jones v Clinton - Clinton did not mean to inflict distress or know to a substantial
certainty that he would, it was reckless for him to disregard the possibility
that it would
o Knowledge to a substantial certainty that it would occur
 Act
o Reasonable person must consider it to be outrageous
 Contributing Factors
 If D is in a position of power over P
 If Ds act were done repeatedly i.e. debt collection
 If act was done in a public setting
 If D is exploiting a known vulnerability of P
 Highly factually specific - context matters a lot
 Identify the specific facts that lead you to believe conduct is
outrageous
 Causation and Severity
o Need to articulate why the quantity of harm is necessary to support a claim
 This element distinguishes tort from battery, assault, FI
 Third Parties
o Courts have usually awarded a third-party victim recovery only if, in addition to
proving
the elements of the tort, she is
(1) a close relative of the primary victim;
(2) present at the scene of the outrageous conduct against the primary victim; and
(3) the defendant knows the close relative is present

Courts have strict requirements with this tort
o Harris v Jones - Courts found distress not severe even though Ps stuttering worsened,
consulted Dr., and repeatedly asked to be moved to a different position within
company
F.Trespass To Land
 Rule
o Act: Enter land owned by another without permission
o Intent: Intend to be walking on the land
o Damage is not necessary
Intent

o Even if acting in good faith that land is yours, still trespass
o Liability is not affected if Ds behavior was socially beneficial to P
o Trespass can lie when a visitor overstays their welcome
Rogers v. Board of Road Com’rs for Kent County - D given permission to use
land for a specified period of time. After expiration of that period they failed to
remove stakes from Ps property that resulted in Ps husband's death. Held trespass
o If one uses land for purpose other than which they have been given permission
trespass lies
 Projectiles/Airpsace
o Landowners have right to not only surface ground, but airspace and subterrainian
land as well.
o If D causes a tangible object to enter Ps land there is trespass even though D himself
has not entered
o Herrin v. Sutherland - committed trespass by firing shots over Ps land which interfered
with the "quiet, undisturbed, peaceful enjoyment of the P"
Pollution/Particles

o Have to prove 2 things:
 Accumulation of particles
 Actual and substantial damages


Bradley v. American Smelting and Refining Co
G. Trespass to Chattels
 Rule
o Act: Conduct that intermeddles or interferes with another’s chattel
o Intent: Purpose to intermeddle or knowledge that it will occur
o Result: Actual harm required - has to be damage
 Intent
o You don't have to intend to cause harm, must merely intend act that causes harm
o Mistake is not a defense
o Transferred Intent Applies
 Harm
o Chattel is impaired as to its condition, quality or value; or
o The owner is deprived of its use for a substantial time; or
o Bodily harm is caused to the possessor or some person or thing in which the
possessor has a legally protected interest in
o If no harm occurs no trespass to land
Damages are detemined by the diminution in value caused by the interference
 Glidden v. Szybiak
o CompuServe v. Cyber Promotions - Ds trespass of electronic signals to server was deemed
to have hurt Ps server.
H. Conversion
 An intentional exercise of dominion or control over of a chattel which so seriously interferes
with the right of another to control it that the actor justly be required to pay the other the
full value of the chattel
Must intend to exercise dominion or control over the property
In determining the seriousness of the interference and the justice of requiring the actor to
pay the full value consider:
(Restatement § 222A)
o The extent and duration of the actor's dominion or control
o The actor's intent to assert a right inconsistent with the other's right of control
o The actor's good faith
o The extent and duration of the resulting interference with the other's right of control
o The harm done to the chattel
o The inconvenience and expense caused to the other
 The ways I which one may convert a chattel include:
o Acquiring possession of the chattel - stealing
o Damaging or altering the chattel - intentionally running over an animal and killing
it
o Using it - bailee violates the terms of bailment
o Receiving it - obtaining possession after purchase from a their
o Disposing of it - bailee wrongfully sells chattel
o Misdelivering it – delivery to wrong person so chattel is lost
o Refusing to Surrender it
 Damages are fair market value – no sentimental value
Privileges
A.
Consent – in all intentional torts except for trespass, lack of consent is part of the
Plaintiff’s prima facie case and they must plead and prove it
 Types of Consent
o
Express – “Yes, you may vaccinate me”
o
Implied – implied from the conduct of the plaintiff, viewed through the eyes of the
defendant.
a. Test: Whether a reasonable person in the position of the defendant would
believe that the plaintiff had consented
b. O’Brien v Cunard - raising of arm by plaintiff implied consent to vaccination by
Dr.
c. Implied consent in medical emergencies
**How did it the act reasonably appear to defendant?
 Medical Care Providers
May act in the absence of consent when
1. The patient is unable to give consent (unconscious, intoxicated, mentally ill)
2. There is a risk of serious bodily injury if treatment is delayed
3. A reasonable person would consent to treatment under circumstances
4. The physician has no reason to believe this patient would refuse treatment under
circumstances
Jehovah’s witness an exception – would refuse a blood transfusion under circumstances
 Scope of Consent
o Although X consented to ______ did he consent to _______?
a. Hackbart v Bengals - consent to play football did not also consent to touches
that lie outside the general rules and customs of the game
b. Mohr v Williams - consent to surgery on right ear does not consent to surgery
on the left ear as well. The surgery was neither immediate nor serious
 Capacity to Consent
o When plaintiff is a child, intoxicated, mentally ill, unconscious, etc. he is incapable of
giving consent and any objective manifestation of consent will be invalid
a. Some minors of 17/18 are allowed to consent to minor medical procedures vaccine
b. Parents must provide consent for minor children


II.
c. You can legally give someone power to make decisions for you - power of
attorney
i.
GA Code 31-36-1
 Consent Based on Deceit/Misrepresentation/Fraud is Invalid
o DeMay v Roberts - Consent to hand holding is invalid because defendant failed to
disclose he was not a Dr. which the court held to be deceitful
o The misrepresented fact must go to the harmfulness of the touch
a. In STD cases the defendant must know that he has the STD
 Withdrawal - Once consent is given it can be withdrawn
o Difficult to determine when it can be withdrawn
a. Withdrawal while a medical procedure is in progress must be unquestionable
response from clear and rational mind and it must be medically feasible for
Dr. to stop
 Criminal Activity - Courts are Divided
o Majority view consent to crime is still consent
o Restatement - there are some criminal statutes that are designed to protect certain
groups from their own poor judgment - statutory rape
B. Self-defense
 1.) Privilege - anyone is privileged to use reasonable force to defend himself against the
threatened battery on the part of another
o Affirmative Defense to be pleaded and proved by defendant
o If Police Officer is defendant burden is reversed
o Trial court judge makes initial judgment if self-defense is warranted
 2.) Retaliation - defense against threatened battery, when the battery is no longer threatened
the privilege terminates
o Even if person was initial aggressor he has right to self-defense against person
originally threatened
o Garrett wouldn't be privileged to spank Daily because threat had ceased
 3.) Reasonable Belief - privilege exists when defendant has a reasonable belief that the
force is necessary to protect himself against battery, even though there is in fact no necessity
o "Self-Preservation as the first law of nature"
 4.) Provocation - Insults, Verbal threats, or opprobious language generally do not justify
self-defense
o Does not justify battery, but may limit liability to actual damages
 5.) Amount of Force - privilege is limited to the use of force that is or reasonably appears to
be necessary for protection against a threatened battery
o Differences in age, size, and strength are proper considerations
o To justify resistance with a deadly weapon defendant must have a reasonable
apprehension of loss of life or great bodily injury
 6.) Retreat - disagreement about this - whether the defendant must retreat if he can do so
without increasing his danger, rather than stand his ground and use deadly force
o Common law rule - "retreat to the wall"
o Not applicable to guns….
 7.) Injury to a 3rd party - transferred intent - the privilege of self-defense is carried over, an
the defendant is not held liable to B in the absence of some negligence towards him
C. Defense of Others
 RULE - The D is privileged to come to the defense of any third person under the same
conditions and by the same means that he himself would be privileged
 Reasonable Mistake
 Some states hold that if it turns our the D has intervened to help the aggressor, te he
is liable
 Other states hold that the D can be mistaken in is belief that intervention was
necessary, so long as is mistake was reasonable (Restatement view)
If the D is under a duty to protect another or his land or chattels, the he is privileged to use
reasonable force to do so.
D. Defense of Property
 RULE - A possessor is privileged to use reasonable force to expel another from his land, or
to prevent another's imminent intrusion upon or interference with his land or chattels
 Must first request that the intruder desist unless it appears that it would be useless or could
not be made in time
 You are only privileged to use the minimum amount of required to stop the intrusion
 Katko v. Briney - Spring Guns - you are only use the amount of force you would have been
privileged to use had you been present
E.Recovery of Property
 RULE - D has a privilege to use reasonable force to take property back that has been
wrongfully or forcibly taken
 If property is not taken fraudulently or forcefully then force is not appropriate to get back
the property (Hogden v. Hubbard)
 D must ask for property back, and resistance has to be shown before he is allowed to use
force
 D must be in fresh pursuit
 D is not privileged to make a reasonable mistake
 Car Repo - Can't use force but can use trickery
 Shopkeepers Privilege
 If there is a reasonable belief that someone committed larceny, then you are
privileged to detain them to find out (Bonkowski v. Arlan's Department Store)
 Only applies to merchants - self-check, merchants want customers to feel
comfortable in their stores so they are going to be careful of making accusations
 Reasonable suspicion is a jury issue
 If chattel was rightfully acquired, but is merely being withheld from D, no privilege
F. Necessity
 Basically, sometimes it is necessary to commit an act which would otherwise be a conversion
or trespass in order to defend something or promote the public good.
 Public Necessity - class of people protected is the public as a whole, privileged, no
compensation is necessary
 A private citizen may act in public good - destroy liquor when Union army is
approaching
 Private Necessity - D is protecting his own interests, privileged, but must pay for resulting
damage
 Mistake – the D can make a mistake as long as it is reasonable
 Not necessarily clear how many people have to benefit for the action to be reasonable, but at
least more than would be hurt by the action.
 Classic example – (Surocco v. Geary – mayor decides to burn down a house in order to stop
the further spread of a fire).
o D typically not liable for damages because the private party is in a better position to
get insurance. Also, don’t want to spread the liability to the public b/c then there
could be reluctance to act in emergency situations that require necessity.
o Sometimes though, the government does have to pay for the destruction of property,
so how do we distinguish?
It is a case of “use versus destruction.” If the property itself was causing the problem, then
the P typically cannot recover from the government (whereas if a SWAT team destroyed a
building b/c they were trying to get someone who was inside) (“public necessity” versus
“public takings”)
 HYPO: What if a neighborhood watch group decides to burn down a crack house? They are
not privileged to do so, because the actual property must be a threat, not what’s in the
property.

Privilege is most commonly invoked by public officials, but sometimes can be invoked by
private citizens.
 Restatement – Defense Against Privileged Action
a. The actor is not privileged to defend himself against any force or confinement which
the other is privileged for any purpose to inflict upon the actor except where the
other’s privilege is based upon a reasonable mistake of fact not caused by the fault of
the actor.
 Vincent v. Lake Erie Transport Co. (ship owners kept their boat tied to a dock during a storm)
– where the D prudently availed himself of the P’s property for the purpose of preserving
his own more valuable property, then the P’s are entitled for compensation for the injury
done.
Exception example: If I jump on your car to escape your dog, then I don’t have to
compensate you. (you are causing my harm, not some outside source).
G. Justification
 Sindle v. New York City Transit Authority (On the exam last year) – School bus driver who
takes a student to the police station after several students on the bus were damaging
property on the bus. Unknown if the student in question was actually participating. The
student and his father, P, sued for false imprisonment, and the bus driver, D, claimed
justification.
 Rule set down by case: Generally, restraint or detention, reasonably under the
circumstances and in time and manner, imposed for the purpose of preventing
another from infliction personal injuries or interfering with or damaging real or
personal property in one’s lawful possession or custody is not unlawful.
Important point of this case is that you can’t pigeon-hole cases into certain genres much of
the time. The court draws analogies, and says the case is kind of like a shopkeeper, and also
kind of like a parent disciplining a child, but the bottom line is that the court thinks what
happened is a good idea. It shows that you can’t necessarily say the preexisting categories of
privilege are the sum total of all privileges.
 Officer/Citizen May Arrest When:
1. To prevent a felony/breach of peace is being committed
2. If a felony has been committed
3. For a past breach that was not a breach of peace or felony must have taken place in
his presence
4. Not for mere misdemeanors - has been extended to when occurs in officer's
presence
5. Can't use excessive force
 Felony must have actually have been committed for a citizen to be justified

III.
Negligence
A. General
The tort of "negligence occurs when Ds conduct imposes an unreasonable risk upon

another, resulting in an injury to that other. Ds mental state is irrelevant.
Four elements of Negligence

1.
Duty - assume that there is a duty to act reasonably
2.
Breach - Did D fail to use reasonable care
3.
Causation - has to be a causal connection between Ds failure to use reasonable care
and the injury for which P seeks compensation
4.
Harm - must have suffered legally recognized injury - physical, property, medical
expenses
Key
consideration:
Was the Ds conduct reasonable?

1.
Identify the specific conduct alleged to be unreasonable conduct
2.
Identify the factors needed to determine if the act was unreasonable
3.
Is there enough evidence to get it to the jury?
B.
Standard of Care - Reasonable Person
Reasonable Man - What would a reasonable person do under the circumstances

Starting point is Vaughan v. Menlove (D built a rick near P’s land, and it caught sheds on P’s

land on fire). Adults are expected to have a threshold level of skill, knowledge, memory, etc.,
and if they fall below that standard, then they can be held liable.
Constructive Knowledge

1.
Not what D actually knew, but what a reasonable person SHOULD have known.
2.
It may not be unreasonable to not know something, but may be negligent and
unreasonable to not find out. (Delair v. McAdoo – faulty care tire)
If
D
has
superior knowledge or training, he is held to a higher standard to prevent harm; but

if he is less intelligent, then held to the reasonable person standard (negligence is a floor, not
a ceiling).
D has a duty to investigate - purple traffic light

Custom

a. Customary practices are evidence of what is reasonable. This is not conclusory, but is
a good rule to follow (Trimarco v. Klein)
b.
Based on a faith in markets, and that people who provide goods and services will
respect a level of safety.
c.
In some cases the industry custom will be negligent - tugboats without radios
Emergency and Distraction

a. A reasonable person can become distracted. Distracted attention, lapse of time or
other similar factors make it reasonable to forget, and it can be found there is no
negligence (usually a jury issue).
It is commonly held that the reasonable person will not forget what is

actually known (forgetfulness does not excuse negligence.)
Cell phone is not a legitimate distraction

b.
A reasonable person sometimes acts differently in emergency. To qualify as an
emergency the event must be unforeseen, sudden, and unexpected
Usually not applicable if D created the emergency, or

If D negligently failed to anticipate the emergency

D must act reasonably in light of emergency - throwing gas on a fire in an

effort to help
Physical characteristics and disabilities are subjectively taken into account in assessing the

standard of care, and the D will be measured against a reasonable person with his disabilities.
a. Roberts v. State of Louisiana – evidence it would have been more dangerous for D to
use cane
Children

a. Subjective test to the extent of what is reasonable conduct for a D of child’s age,
intelligence, and experience under the circumstances.
Exception: If the child is engaged in an “adult activity,” or an activity that is

inherently dangerous, then held to an adult standard of care (Robinson v.
Lindsay)
Large variance in what is considered an adult activity; judge decides if the

certain activity is considered an adult activity.
Children are held to superior knowledge, but given a break for inferior

knowledge
Mental Capacity

a. Typically, insanity or other mental impairments are not taken into account in
deciding reasonableness.
Exception: In Breunig v. American Family Insurance Co., Wisconsin adopts a

different standard, and says that insanity could be a defense if it prevents the
D from knowing what is reasonable, and if they can’t comply with what is
reasonable.
But, it usually needs to strike without warning, and the D must have no
previous knowledge of the disability in order to comply with Wisconsin’s
rule.
Note: Bender article in Anthology tells us that the reasonable person standard has an
inherent male bias, and a better standard could be the “caring neighbor” standard. However,
many cases would not come out differently if this standard is used


1. The Professional
 “malpractice” – negligence by a professional
 Professionals are held to the standard of a reasonable person in their profession.
 Who can be charged with malpractice generally? Lawyers, doctors, architects, engineers, and
accountants.
 Who can’t be charged? Teachers and clergy.
 Custom
a. Customary practice of professionals is more than evidence of what is reasonable, it is
the STANDARD of what is reasonable.
 In these cases, the P MUST show what is the standard of care.
b. Reasons custom is held to this high standard:
 Because there is no other choice; the jury usually doesn’t know what good
practices are in professional areas
 Unlike merchants, professionals have a higher level of education, and they are
held to a higher level of trust.
c. To establish a claim, the P must first show the standard was not met. Once standard
has been set by expert witnesses, then the P must either have eyewitnesses testify
that D didn’t follow standards, or have expert witnesses give opinions based on facts
of the case.
d. It’s not enough to show that the D did something wrong, must show that he didn’t
comply with customary practices.
e. Expert witnesses must testify to what is reasonable, not what THEY would do.
f. “Common Knowledge Cases”:
 Slipping on floor in doctors’ office – don’t need expert testimony
 Raising guard rails on bed after medication has been administered – might
require an expert witness
“Foreign
objects” cases – don’t need expert testimony

 Locality Rule – Dictates that you have to judge the standard against usual practices of
doctors in the surrounding area
a. Developed out of traditional variances in medical care between rural and urban areas.
b. Disadvantages of locality rule:
 Limits the pool of expert witnesses
 Reduces definition of standard of care
 Doctors aren’t willing to testify against their colleagues
c. Some places expand the locality rule to “similar localities”
 Problem: don’t know exactly what a similar locality is
d. Locality rule is largely diminished now
 Problem: both sides will present witnesses from all over the country who will
give refuting testimony, so the jury must decide who is right, which is the
problem to begin with
 Informed Consent – considers more directly patients’ autonomy interests rather than care
interests. Three elements: (from Scott v. Bradford – tumors on uterus)
a. Defendant physician failed to inform P adequately of a material risk before securing
his consent to the proposed treatment
b. If P had been informed of the risks then he wouldn’t have consented to the
treatment

c. The adverse consequences that were not made known did in fact occur and he was
injured as a result of submitting to the treatment.
d. Two views of informed consent (courts are basically split as to which one to apply):
 Tell patient what is customary to tell them
 Need an expert to testify to what is customary
 This view doesn’t really preserve patient autonomy
 Tell patient everything that is “material” to the procedure
 Still need expert to testify, but he just says what risks are associated with a
procedure, and then the jury decides if they are material
Problem:
are we asking doctors to be mind readers?

e. Causation – It is a cause only if it would have changed the patient’s mind
 Objective view – what would a reasonable patient have done differently?
 Problem: lost the autonomy we were after in the first place
 Subjective view – what would this patient have done differently?
 Problem: patient could lie. But, juries will look at things like if the patient’s life
was saved, or if there is something peculiar in this patient’s life that would
lead to a different conclusion (don’t have to accept patient’s testimony)
Courts
use both views

f. Disclosure
 Doctor must inform patients of any possible alternative treatments, any
possible psychological risks (not just physical), and the risks of NOT having
the procedure.
 Doctor usually does not have to disclose personal info (don’t have to disclose
substance abuse problem).
 Does a doctor have to disclose if he is HIV positive? Probably.
 Exceptions creating privilege not to disclose:
 Don’t have to disclose risks that either ought to be known by everyone, or are
already known to the patient.
 Where full disclosure would be detrimental to a patient’s total care and best
interests
 Where there is an emergency and the patient is in no condition to determine
for himself if treatment should be administered
g. Moore v. Regents of California
 Full disclosure would probably have made Moore go to a different doctor
because Moore’s doc could have been ordering unneeded procedures
 Court found doc should have to disclose his research and financial interests.
h. Statutes
 Sometimes statutes will denote what procedures require informed consent (as
in GA)
 There are six categories of information that must be disclosed (in statute
handout)
So,
first look if procedure is covered by statute, then see if it is one of the six

categories.
 GA uses the reasonably prudent patient standard.
i. Harm from which P complains must be from the risk that wasn’t disclosed!
Three factors of the reasonably prudent lawyer (Hodges v. Carter) (p. 172 in book)
a. He must have the requisite knowledge and skill
b. He must use his best judgment
c. He must act in good faith
2. Law and Economics
 Typically, in determining if D was negligent, court must consider:
a. The probability of injury, the precautions necessary to prevent injury, and the
relations of the precautions to the beneficial use of the property.
b. The character and location of the premises (near children? Etc.)
c. The purposes for which the property is used
 Chicago B & Q.R. Co. v. Krayenbuhl – court says must weigh the public benefit against injuries
that would be caused from using a piece of property and the precautions required to make it
safe.
 Hand Formula (BPL)
a. Burden of taking the precaution (cost) – B
b. Likelihood the accident will occur (probability) – P
c. Loss or damages (injury) – L
 B < PL (negligent)
 B > PL (not negligent)
d. Not all factors in the Hand formula can be easily calculated, so it is more of a general
measure (usually is consistent with the reasonable man standard)
e. P MUST present evidence to support his claim (numbers or statistics or values
related to the elements of the formula)
f. If B is extremely small, then you don’t need much of a PL to be negligent.
g. Look at BPL in a broad sense, not specific (are there any outside injuries or costs
that could apply other than what is directly involved?).
h. A particular party’s ability to pay for a precaution is irrelevant, as long as the formula
is followed. (The relevant societal question is whether the precaution is cost
effective)
i. Many states choose not to use the Hand formula because it can confuse the jury.
 If something hasn’t happened before, then generally D can’t be expected to guard against it
(Blyth v. Birmingham Waterworks, Co. – temperature of pipes had never gotten that low)
a. Exception: if the risk is foreseeable, then may have to guard against it, even if it has
never happened.
3. Violation of Statute
 The violation of a statute is negligence per se, in some jurisdictions it is a rebuttable
presumption, while in others it is evidence of evidence of negligence.
 Negligence Per Se:
 Evidence of a violated statute can get directed verdict for P
 Rebuttable Presumption
 Burden shifts to D, evidence gets the case to the jury
 Violation as Evidence of Negligence
 Up to the jury
 Inquiry:
 Is this they type of statue that should be enforced under negligence per se?
 Was the statute violated?
 Is this the class of people it was intended to protect?
 Is this the type of risk the statute was designed to protect?
 Is there a causal connection between the violation and the harm?
 Why is so much weight given to a statutory violation as opposed to BPL or custom?
 Legislative interpretation of what is reasonable
 Negligence per se is not liability per se there can be defenses
 Restatement 288A, A violation is excused when:
 The violation is reasonable because of actor's incapacity
 He neither knows nor should have known of the occasion for compliance
 He is unable after reasonable diligence or care to comply
 He is confronted by an emergency not due to his own misconduct
 Compliance would involve a greater risk of harm to the actors or to others
The judge will usually decide what is a legally valid excuse, and the jury will decide of the
facts support it
 No negligence per se for children
 Compliance with a statute is evidence of reasonable care, but not conclusive
4. Res Ipsa Loquitor - The thing speaks for itself
 Sometimes the mere facts of an accident's occurrence raises an inference of negligence as to
establish a prima facie case of negligence
 Three Requirements
 Type of action that doesn't ordinarily occur in the absence of negligence
 Common Knowledge
 Just because an accident is rare doesn't mean it was negligent
 Defendant must have been in exclusive control of the instrument
 Relevant time frame is when the probable negligence occurred
 Larson v. St. Francis Hotel - no Res Ipsa, chair not in exclusive control of
hotel
 Plaintiff did not contribute
 Usually not an issue, shifts burden to D to prove
Three
Ways
to Treat Res Ipsa

 Inference of Negligence
 Goes to the jury, if 50/50 D wins, P has the burden of pursuasion
 GA is an inference jurisdiction
 Presumption of Negligence
 D must provide evidence, goes to jury, if 50/50 D wins
 Shifting the Burden to D
 D has to provide evidence & persuade, 50/50 P wins
Byrne
v.
Boadle
- Flour fell from window, classic res ipsa case

 Ybarra v. Spangard
 Ps injuries are obvious result of negligence but he was unconscious at the time
 It is unclear who had exclusive control at the time of the injury
 The court shifts the burden to the D to explain their conduct
 They were in best position obtain evidence
 Will be more forthcoming if they are to be held liable
 All had a fiduciary relationship to patient
 All the nurses/doctors were held liable
 People can be held liable for injuries they didn't cause
 Jurisdictions are split as to whether to apply this approach
 If there is contradicting explanations is a res ipsa case then it should go to the jury, and P
has the burden to prove.
Causation
A. But-For Causation
Create a situation where everything remains the same except for Ds wrongful conduct

Ask: If D had ______ than P would have injury P is suing for?

1.
If yes - D wins
2.
If no - P wins
P bears the burden of proof, must show that it is probable that the injury would have

occurred without the Ds act
The risks associated with the unreasonable act must be connected to the injury

1.
Is it more likely than not?
Inherently speculative - asking jury to determine if things would have happened differently

B. Lost Chance
Three Approaches to Medical Recovery


IV.
1.
C.
D.
Traditional but for test with a preponderance of the evidence, where the P gets to
recover ALL of the damages if he can prove more likely than not that the bad events
would have been avoided.
2.
If the Ds negligence increased the risk of a bad event happening, then it goes to the
jury. The jury will then decide whether this particular P was in the majority or
minority of people who would have died from their illness. All or nothing recovery.
3.
Lost chance centers on how we define the harm, which isn't the bad outcome itself.
But
Traditionally a P had to show that a loss was "more than likely" to occur. But in these cases,

even if there was no negligence the P would have less than a 50% chance of survival.
In these cases P is arguing that Ds negligence hurt him by taking away his chance to survive

Damages are determined by multiplying the value that would have been recovered for death

by the lost chance of survival
Eaton has never seen lost chance applied to 50%+ case

Theoretically could apply to other contexts - legal malpractice

Expert Testimony
Daubert Test

1.
Must determine whether experts' testimony reflects "scientific knowledge," whether
their findings are
"derived by the scientific method," and whether their work amounts to "good
science"
2.
Courts consider:
a. If theory is generally accepted in the scientific community
b.
If work has been subjected to peer reviews or publication
c.
Whether it can and has been tested
d.
Known or potential rate of error
3.
It has thrust the trial judge into a gatekeeper role
Expert testimony is expensive - Plaintiff's counsel comes out of pocket, Defense client pays

for
Concurrent Causes
Hill v. Edmonds - negligent driver runs into truck parked in the middle of the road

1.
Both parties were negligent, causes in fact
2.
Can have more than one but-for cause
3.
Both are liable for the accident
Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co. - two fires merged to destroy a house, one

of which was started by the D, the other was of unknown origin
1.
Both fires were separately sufficient to cause the damage
2.
A literal application of the but-for test would lead to a finding that neither party is
liable
a. Ex. Horse spooked after 2 motorcycles ride by. But not for D1 still would
have been spooked by D2, but-not for D2 still would have been spooked by
D2.
3.
The courts develop the Substantial Factor test - when you have multiple
independently sufficient causal forces, if your negligence was a substantial factor in
bringing about the harm, then you are liable.
a. Plaintiff friendly test
b.
Up to the jury to determine what is substantial
c.
When you have multiple parties, we should pick the rule that favors the
innocent victim rather than the negligent actor
4.
The Restatement keeps the but-for test as the starting point, but apply different rules
when you have multiple independent forces
In Hill it was the combination of the two actors that caused the harm, in Anderson each fire

would have been sufficient to cause the harm
E.
Who Caused the Harm?
Summers v. Tice - P was shot in the eye, 2 negligent actors, 50/50 chance each caused the

injury
1.
P would usually lose in this situation, it is up to him to prove the causal connection
2.
CA courts shift the burden of proof to the Ds, and if they can't exonerate themselves
then they are held joint and severally liable
a. Both the Ds were negligent
b.
Every wrongdoer is in the courtroom
c.
Since there were only two negligent parties, the probability is high that the
actual wrongdoer will have to pay
3.
Could apply to a situations with more than 2 Ds, Eaton says 4 is too many for him
personally
Sindell v. Abbott Laboratories - D is suing for injuries sustained prior to birth from her mother

taking DES, she doesn't know the specific manufacturer of the drug so she is suing 5
companies, though there are 195 others.
1.
Market Share Liability - a mass marketed product with an identical flaw; court
assigns a market share of responsibility to the manufacturers, they pay out in the
aggregate a proportionate amount of the amount they produced
a. Court says only applicable when a substantial share of the market is present
in courtroom
2.
The court first considered and rejected 3 theories:
1.) Summers v. Tice - It is a 90% certainty that one of the Ds is responsible for the
drug her mother took, the burden would shift, and if they can't prove they didn't do
it all are held jointly and severally liable
Culpable D v Innocent P, the Ds should bear the burden
Courts distinguish this case from Summers because there are 195 other possible
defendants who are not in the courtroom
Michigan has reached a different conclusion note 2E
2.) Concert of Activity - when Ds work as one to bring about a harm, acted together
on purpose, would be held jointly and severally liable
Court says facts fail to prove the Ds acted together. Sindell pled that there
was collaboration in the market in developing and promoting the drug. They
encouraged each other in providing inadequate labels… court rejects
3.) Industry-Wide Standard - how is this different from concerted activity - not much
of a difference, a bit more specific, explained not by independent determinations of
self-interest but conscious and purposeful adherence to industry practice, joint and
several liability
The court rejects it - it's a it lot less likely when there are 200, and in Hall much was
mandated by a trade association which all were voluntarily a part of. Not the case in
Sindell - the government determines if you product is safe
3. Policy Reasons for market Share
a. Ds are in a better position t know about and reduce the level of risk
b. The Ds are better suited to meet the cost of an injury
c. Also in a better possession to bring forward evidence
4. If any D can show that he wasn't responsible in a way that alleviates responsibility
for the whole group, then the case can be dismissed
5. Different states apply different versions - notes after case
F.Proximate Cause
 Proximate cause is a policy determination that, arising out of a judicial sense that a
defendant, even one who has behaved negligently, should not be automatically liable for all
of the consequences no matter how improbable or far-reaching of her act.
 Unforseeable Consequences
Ryan v. New York Central RR Co. – D negligently maintained engine, which caused
sparks, and sparks started fire that burned a woodshed, which then burned P’s
house.
a. D’s act was a cause in fact of the injury, but the court says it wasn’t a
proximate cause
b. Court says first building catching fire was foreseeable, but others were not
c. Four letter F-Word: FAIR, it's just not fair to impose liablity on RR
d. Reasons:
 Fires can spread a long way, and don’t want the liability to grossly
outweigh the culpability.
 “first party insurance” – the owner of the house is in a better position
to get insurance than the RR company to get third party insurance for
every house it passes
 Requiring D to get insurance would be “over deterrence”
(they might not operate their railroad if the costs are too
high)
 This view distributes the risk most efficiently
e. Modificatons:
 NY modified this rule to include the first adjoining landowner
 Kansas has completely opposite rule, and the RR company would be
responsible (most likely based on societal values of particular
state/community)
 Eggshell Skull – have to take D in the condition you find him
 As long as some harm is foreseeable, liable for all resulting harm
 Bartolone v. Jeckovich – P in this case had underlying dormant condition that
produced psychological problems after a car accident (D is liable)
 If D has existing physical condition, then D is still liable if condition
worsens
 This rule seems to broaden the scope of foreseeable harm.
 This rule applies to intentional torts as well, not just negligence.
Direct Cause Approach (Polemis – dropping plank, starts fire)
 D concedes that he should be responsible for the unforeseen extent of harm that
occurs, but not the TYPE of harm that occurs.
 The court however says the anticipation of a certain type of harm is irrelevant
 Rule – as long as there is a direct connection between the act at the beginning
and the injury at the end, and there are no intervening causes, then there is
liability even if the steps between the act and injury are unforeseeable (Mouse
Trap example)
 Policies supporting this rule:
 Deterrence (Ds will act with more care in general)
 Loss should be borne by negligent rather than innocent party, fairness
 Limits of liability under this approach are:
 The court’s assessment of the directness of the causal connection, and
 Whether there are independent forces that come into play after the negligence.
 Foreseeability does not matter under Polemis
Foreseeability Approach (Wagon Mound)
a. How much foreseeability is needed? “The way in which the event occurs need not be
foreseeable, so long as the event itself is to be anticipated.”
b. Wagon Mound 1 – D’s negligence was a cause in fact of the injury
a. What is the type of harm that leads us to say don't ____? Spill oil= slippage
i.
Is ____ that type of harm? Fire=No
b. Very similar to limitations on negligence per se - did the violation produce the
type of injury the statute was designed to protect?



c.
d.
e.
f.
c. Ex. Parent lose custody of child after child eats rat poison at day care. Under
Polemis day care would be liable, direct consequence. Under Wm day care
would not be liable, as parents losing custody is not a forseeable consequence
of child eating rat poison.
Wagon Mound 2 – new P’s (people that owned the boats, not docks)
 The way in which the event occurs need not be forseeable, so long as the event
itself it to be anticipated. You just need to foresee the fire, no the events
leading up to the fire
 Why would this come out differently? Different fact-finder, benefit from
previous case, but probably b/c the dock owners were using torches, if it was
reasonably foreseeable that the oil would catch fire dock owners would be
establishing contributory negligence.
 Both Wagon Mounds apply thin skull rule
 The D is going to want lots of details, the more details the more likely you are
going to say who can foresee that? P wants general details
 Should it matter whether the actual harm is greater or smaller than the
foreseeable harm? (Such as tripping over a box of dynamite). The
Restatement says it shouldn’t matter, it just has to be foreseeable (but this
position has been scrutinized.)
Palsgraf v. Long Island RR Co. – “unforeseeable plaintiff” problem
 Cardozo said the D owed P no duty of reasonable care. A duty is only owed to
the “orbit of danger,” or the risks reasonably perceived.
 Does the guy carrying the package have a case (if he were injured)? Yes. What
if he was carrying an expensive vase that broke?
i.
Yes, liable for all damages no matter how novel or extreme - thin
skull
 Why not transferred intent? Because the guards were trying to help the falling
passenger, not hurt him.
 Transferred Intent does apply to negligence
 Andrews’ dissenting opinion – agrees there need to be limits, but he says
you owe a duty to the world at large
 Andrews says in determining foreseeability, you should look at:
i.
Intervening causes
ii.
Directness
iii.
Remoteness in time and space (physical closeness and nearness in
time)
 Andrews’ approach makes it difficult to draw the line between what is
foreseeable and what isn’t.
Negligent cheauffer hypo, why doesn’t the baby get to recover? Too remote in space.
In examining these cases, think of the most persuasive reasons you can come
up with for limiting liability to the foreseeable consequences to foreseeable
Ps, and what are the most persuasive reasons for adopting the direct
consequences approach. Use fairness, deterrence, and judicial efficiency, and
be able to justify the outcome.
1. Intervening Causes
 Definition: An even that comes between the initial event in a sequence and the end result,
thereby altering the natural course of events that might have connected a wrongful act to an
injury.
 Before examining any liability based on an intervening cause, we must first conclude that the
D was negligent, and that negligence was a cause in fact of the harm.
 An intervening cause could be human or natural.
 Superseding Cause – intervening force that relieves D of liability.




a. Two key factors to think about in determining if someone’s conduct is superseding:
 The extent the intervening cause was foreseeable to the D
 The moral culpability of the intervening actor (his mental state)
Concurrent Cause – intervening force that adds to liability.
There may be more than one proximate cause of an injury, thus more than one D may be
held jointly and severally liable. (It would be prejudicial to the P to instruct the jury on
whether the D’s conduct was THE proximate cause.)
It doesn’t necessarily matter if the P caused his own injury (negligently swinging on a rope
swing attached to a branch the county knew was faulty)
Foreseeability
a. Derdiarian v. Felix Contracting Corp. – driver has a seizure, and thus negligently crashes
into job site. Court held that the driver’s conduct did not relieve the D of liability.
b. The court said the risk of a driver entering the work site was foreseeable, so it didn’t
matter how the driver came to do that.
c. Basic rule is that it doesn’t matter if the intervening causes that led to the harm were
foreseeable, as long as the end result was reasonable foreseeable.
d. Watson v. Kentucky & Indiana Bridge & RR Co. – negligently spilling gas.
 Court held that if lighting the gas on fire was malicious or negligent
(intentional), then that was NOT foreseeable (but if it was accidental, then it
was foreseeable).
 However, this does not mean that just because someone did something on
purpose, that the D should never be liable.
 Rape of RR passenger when she was left off in a bad part of town,
forseeable result of letting off in bad part of town=liable. If she had
to stay in hotel and it burned down killing her, not liable because that
is not a foreseeable result of letting her off in bad part of town
 Also, the D will sometimes be liable for criminal acts of third parties if it is
foreseeable
 It has to do with the risks associated with the negligent act.
 The key question is whether the criminal act of a third party is
foreseeable at the time of the D’s negligent action, so that the D
could take it into account.
e. These cases are often difficult to determine. It has to do with more than just
foresight; there is a judgment of moral responsibility to be made.
f. The focus of the Third Restatement seems to not be whether the intervening
conduct was foreseeable, but whether the resulting harm was foreseeable. (This is
consistent with Derdiarian, but doesn’t really agree with the ruling in Watson)
g. Fuller v. Preis – Negligent driver is held responsible for causing the victim to commit
suicide 7 months later.
 In this case, death was foreseeable, but at the time of the accident and related
to physical injuries, not by suicide 7 months down the road.
P
is arguing the decedent had an “irresistible impulse,” and therefore had no

control over killing himself.
 The D would argue in response to that that the P could have gotten help
earlier. Or, because he was saying “I must do it, I must do it,” that could
prove the decedent had the possibility of choice.
 Problems with this case:
 It is extremely difficult to prove there was in fact an irresistible
impulse (P’s burden)
 This is a very unforeseeable result
 Case illustrates that suicide is not always a superseding cause.
 What about irresistible impulse as related to workers’ comp? Sometimes they
have been allowed to recover (use the substantial factor test)
Rescue Doctrine – allows an injured rescuer to sue the party which caused the danger
requiring the rescue in the first place.
a. Cardozo’s Rule: It doesn’t matter whether the harm/risk was foreseeable or not, if
there is danger caused by a D, and someone helps, then that someone can sue for
their injury.
 Generally, if someone else is injured while helping the rescuer, then they can
recover also. Even if someone additionally helps that second rescuer, they
can recover too. (New Restatement agrees with this position)
b. The rescue doctrine extends liability beyond what is reasonably foreseeable in order
to protect someone in society.
c. Firefighter Rule – says that someone like a policeman cannot bring action for an
injury sustained while rescuing because they have already assumed the risk. (majority
view)
 However, some jurisdictions have abandoned this rule as a public policy
matter (rescuers should be admired, not admonished) (minority view)
d. If a rescuer is taken to the hospital for his injuries, and he is negligently injured
further, then the original D is typically still liable.
 If he weren’t, then courts would be forced to separate out the claims, which
would lead to messy litigation.
e. What about a second injury caused by the weakened condition resulting from a
previous condition? (such as the second breaking of a limb that had not fully healed
at time of rescue). In this case, the P usually gets to recover for the second injury.
Factors the court will consider in determining if P gets to recover:
 Length of time between the accidents
 Location and nature of second injury
 Reasonableness of the P’s conduct
 Character of the second injury
2. Public Policy
 Kelly v. Gwinnell – negligently serving alcohol to guest as a social host
 Court holds D liable for serving alcohol to guest, not necessarily because the result
was foreseeable, but because there is a concern over drunk driving, and the court
says the policy considerations far outweigh those of not imposing liability on social
hosts.
 The court bases this decision mainly on deterrent factors, and allowing just
compensation for the injured party (ensuring they will get paid b/c more D’s
involved)
 The dissent says liability should not be imposed because social hosts are different
than commercial licensees:
 The social host is in no position to be able to determine someone’s level of
drunkenness
 What lengths must the host go to in order to stop the guest from drinking
further?
 Social hosts don’t have the ability to spread liability through increases in costs
or anything like that.
 Most jurisdictions reject this ruling, but almost all accept it when the guest is a
minor.
 Several modifications have been made to this ruling (only making the social host
partly responsible, requiring a certain BAC, etc.)
 Enright v. Eli Lilly – P’s grandmother ingested DES, causing the P problems
 The court refused to extend the liability line because of policy considerations, and
especially over deterrence.
 You have to draw the line somewhere, the effect is marginal since there are plenty
of first generation claims out there
