Torts Outline – Professor Turley
I. SCHOOLS OF THOUGHT
A. Formalism
1. Code system, consisting of canons, case-made, judge-made rules
2. Rules are “outcome determinative”; goal- prevent bias/ subjectivity of judges
3. Fierce notion of judicial neutrality/deference; court should not engage in determining
what law should be rather than what it is; leave lawmaking to legislative branch
B. Legal Realism- replaced Formalism in the Torts Revolution
1. Rejection of formalism; acceptance of the indeterminacy of the law
2. Karl Llewellyn found judges selected canons and pre-determined outcome (hidden bias);
false neutrality
a. Began policy goal of creating a stable rule; consider broader implications
b. consider what reasonable person would have done and the goal of achievement
C. Normative
1. Goal- determine what is “norm of society”, what is morally right/wrong in society, usually
decided by jury
D. Hobbes- Leviathan guarantees recourse/ remedy; corrective justice- law must make wrongs
right vs. efficiency of CLS (producing most efficient manner of achieving wealth
maximization rather than righting of wrongs)
E. Lockean
1. Labor Theory: In beginning, all was held in common. Then evolved into private
property (mixing of sweat/labor = conversion of common property into private property)
2. Gvmt does not create priv. property- God created private property; gvmt may not
redistribute wealth
3. Locke’s Proviso: One must leave “as good and enough for others” (used by Rawls to
justify redistribution if extreme concentration of wealth occurs b/c it is defeating God’s
plan of allowing man to produce through enterprise)
F. Utilitarianism
1. gvmt must protect individuals, not just market
2. Bentham- goal of gvmt- achieve the greatest good for greatest number; invest in social
action  tremendous productivity (industrial revolution); gvmt = engineer of society
G. Feminism
1. Katherine MacKinnon- law written by middle-aged white men- inherent patriarchal bias
2. Jurispathic v. jurisgenerative
a. Jurispathic- basis of law is combative, male model; lawyer is knight; zero sum gameonly one person wins/ gains
b. Better  Jurisgenerative- judges evaluate merit on both sides and shape an equitable
decision
3. Bender- should have duty to perform low-cost rescues; Posner agrees, but from an
efficiency standpoint
H. Critical Legal Studies
1. Goal- judges should actively work to break down class barriers; help marginalized
2. Sometimes favored judicial activism, courts should be more socially active
3. Duncan Kennedy- peeled onion of Blackstone’s Commentaries
a. Favored de-construction of ‘legal terms’
b. Wealth re-distribution is important (Rawls)
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I. CLS counted by Judicial Restraint
1. Goal- deference to the legislature; judges are not elected and are counter-majoritarian
2. Madisonian System:
a. Tri-part gvmt provides checks balances
b. Factions  political pressure  majority rule (elimination of factions)
c. If left to judges- no faction pressure relief, too much control given to individual
3. Hart and Sachs- the system works best when courts leave it to legislature to fill gaps/
ambiguous legislation; Courts must stay in line w/the Madisonian system
J. But see- Public Choice Movement
a. Hart and Sachs view is wrong; gvmt often favors minority opinions rather than majority
principles; deals/gaps = Congress making decisions to detriment of public
b. Mancur Olson
i. disagrees with Madison’s view- collective action: small groups are actually more
powerful than big groups b/c small groups have concentrated interest
ii. vs. majority groups, that have dispersed interests and more free riders
c. Easterbrook
i. Dealism- gaps in legislation are bought and sold like a market
ii. Court must apply laws exactly as written; do NOT gap fill: limited judicial role
d. Jonathan Macey- agreed w/public choice criticism, but not the result
i. DO gap fill; take Congress at its word and enforce the “public-regarding purpose”
of legislation; Congress can fix it if wrong
ii. Madisonian democracy works best when open and deliberative process; this is
achieved by filling gaps to public regarding purpose, forcing Congress to amend out
in open to continue deal-making
K. Hegel
1. Personality theory of property- the subjective value of an object to an individual is not
recognized by the law- disconnect
2. the only way to understand property is to understand its relationship to the person
L. Law and Economics School
1. Goal- efficiency, not morality
2. Posner
a. morality is bad basis for law b/c of subjectivity; it’s indeterminate; focus on economic
efficiency instead, which is more tangible and will improve the living conditions
b. Negligence is the most effective system; strict liability forces cost-internalization,
leaving it to the market to dispose of inefficient activities
3. 2 most common definitions of EFFICIENCY:
a. Pareto Efficiency
i. Goal- get a pareto superior result- produces at least one winner and doesn’t make
anyone worse off- making things more efficient
ii. Pareto optimality- point of optimal efficiency; point before first loser is produced
b. Kador-Hicks Efficiency
i. Goal- wealth maximization; producing losers doesn’t matter as long as there is a net
gain; no need to compensate losers
4. Externalities
a. Rational actors try to externalize their cost to others (i.e. externalizing pollution)
b. Hardin’s Tragedy of the commons- wealth maximizing farmers will continue to add
cows to shared land w/finite amt. of grass even if doing so will cause the land to stop
producing food; result- everyone starves
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i. Solution? Introduce private property  creates incentive to keep resource healthy
5. Pigou
a. only legislate when the market fails by allowing something contrary to the long-term
needs of society
b. Examples- stimulus package; force a discriminatory firm off market w/legislation
6. Coase Theorum
a. Coase I- in a perfect market, the market determines the outcome of conflicts btw two
uses – more valuable resource will ultimately prevail (farmer/ rancher ex.)
i. redistribution/regulation not necessary- market will handle it
b. Coase II- there is no perfect market; must include transactional costs (cost of reaching
an accord btw parties), which can cause the outcome to flip- less valuable activity can
continue b/c of the high transaction cost of stopping the activity; fewer people affected
= higher transactional costs (Turleyworks ex.)
II. INTENTIONAL HARM
A. Background
1. Intent
a. Rest. § 1: Conduct is intentional if the actor:
i. desires the result/consequence (“purpose” intent); OR
ii. knows or believes the result is substantially certain to occur (“knowledge” intent)
 little boy knew old lady would be hurt when he pulled chair out in Garret v. Daly
 Children may be held liable of intent
b. intent inferred from conduct, not motive
c. Transferred intent- A hits C when intending to hit B; C claims transferred intent; 1st
you must establish original intent
2. Traditional defense- consent
3. Basic Types
a. Physical Harm: Trespass to person, land, and chattels
i. Tresspass to person
 Vosburg v. Putney
o Rule Violation- Putney kicks Π in shin, lost use of leg
o held responsible, even for unforeseen damages
o Rule- For intent, it is sufficient to show rule violation, the natural cause of
which is injury
ii. Trespass to Land- intent to enter someone else’s land, even if by reasonably
mistake (i.e. because unaware it’s someone else’s property)
iii. Trespass to Chattels- intentional dispossession of a thing; loss in valuable int’st
 trespass to chattel (stolen but returnable) vs. conversion (destroyed, unreturnable)
 Rst. § 218, 19: Liable for direct/ indirect phys. contact causing impairment: of
condition, quality, value.
o Intangible property: Intel v. Hamidi- trespass to chattels claim fails- emails
did not damage the computer system
b. Physical Harm: Conversion
i. Rst. § 222- intentional exercise of control over chattel, which seriously interferes
w/Π’s right to control
ii. Moore v. Regents of Univ. Cal.- organ removed from body, used for science ($).
Usually put in trash so NO conversion.
 RULE: custom of chattel disposal effects determination of conversion
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 Possible Defenses:
o slippery slope
o slippery slope- if you say removal of tissue is conversion, huge # of issues
o bright light argument- say this is not priv. property or slippery slope
o floodgates- if tissue is priv. property, thousands of patients whose tissue was
used in research
c. Physical Harm: DEFENSES to Intentional Torts
i. CONSENSUAL DEFENSES- consent vitiates intent
 Rst. § 892: consent when one is willing for conduct to occur
o Need- Π’s subjective state of mind consent
o Don’t Need- communication to Δ
o Apparent consent- Π’s words or conduct is enough (i.e. implied consent in
the O’Brien case- stick out arm, stand in line, receive unwanted vaccination)
o Mohr v. Williams- Dr. diagnoses left ear, while Π sedated, operates on
other ear  civil assault and battery
 Rule: Need consent
 Issue: Patient’s awareness of consent, and to what
 Emergency Rule- Dr.s are not required to get consent if a person is seriously
injured (i.e. unconscious or severe pain) and time is of the essence
 Proper, informed consent is required
o Canterbury v. Spence- Π has back surgery, left unattended, not instruct to
stay still, falls off bed
 Issue: Duty to disclose risks in acquisition of consent?
 Rule: “Informed consent” is required
 Rule: You can’t consent to something illegal
o Hudson v. Craft- Π, minor, goes to carnival, injured in boxing match
 Issue: Did consent to illegal activity negate Δ’s responsibility?
 Rule: If you are part of a protected class (i.e. minor), court may ignore
consent.
 Rule: Public policy can require consent- duty to disclose.
o I.e. If you have an STD, you have a duty to disclose (or be held liable). If
you do disclose, even if transmission occurs, no liability.
ii. INSANITY: Insane/estate usually held liable
 McGuire v. Almy- Π, nurse caretaker, insane Δ hit nurse on head w/table leg
o Rule: Insane held liable for their intentional torts.
o Court uses cheapest cost avoider to determine family is CCA. Turleynurse/hospital CCA b/c they can get insurance, and nurse knows the danger.
iii. SELF-DEFENSE
 RST § 63: Rule: May only use reasonable force against imminent harm.
 Rule: May only use commensurate force.
o May not escalate the encounter by increasing the violence.
 Rule: You do not have to retreat.
o But may not retaliate once danger is passed. Battered women syndrome not
accepted- viewed as retaliation.
 Rule: Mistaken self-defense must be reasonable.
o Courvoisier v. Raymond- Δ fending off intruders, confuses cop w/intruder
and shoots
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 Rule: Reasonable, mistaken belief of self defense is reasonable.
 3rd party privilege to defend others under same conditions and by same means as
one may defend self.
iv. DEFENSE OF PROPERTY
 RST § 77: Rule: May use reasonable force; MAY NOT use force calculated
to cause serious bodily injury or death in defense of property. Human life
more sacred than property. May use molitor manus- laying gentle hands.
 Curtilage- the area around a home that is protected
 Rule: May NOT have lethal devices that cannot distinguish btw friend/ foe.
o Bird v. Holbrook- walled garden w/spring gun kills kid
o Rule: Human life worth more than property; lethal traps illegal.
 Rule: Notice is necessary to prevent liability for use of non-lethal devices that
can cause injury that are not patent (i.e. electric fence, hidden barbed wire).
Patent (visible) barbed-wire is a warning itself.
 Controversial: Castle Doctrine/ Make My Day- whenever someone intrudes your
domicile, you may use the full range of self-protection (i.e. lethal force ok)
v. RECAPTURE OF CHATTELS
 RST § 100: Limited self-help privilege- reasonable force requirement, recapture
must begin promptly
 Kirby v. Foster- Π has gained rightful possession of $, Δ fights for it back
o Rule: Reasonable force may be used ONLY when dispossession was
unlawful
vi. NECESSITY
 An otherwise trespass/conversion on Π allowed in preservation of life or
property.
 Ploof v. Putnam- Π, family sailing in storm, moor to Δ’s dock, dock’s owner
unmoors boat
o Rule: There is a duty to allow acts of necessity in order to preserve
human life.
 Vincent v. Lake Erie Transportation Co.- Δ re-ties failed ropes of boat to
dock during storm, dock damaged by boat
o Rule: Privilege of private necessity does not negate duty to pay for
damages.
o Turley: Reverse arg.- dock owner may be CCA (insurance, internalize
costs). Ability to sue for lost opportunity costs unclear.
 Public necessity- “champion of the common good”; if acting for public good,
may destroy public property and not be held liable
o Gvmt may always use this argument, but gvmt has waived much of its
immunity
 i.e. U.S. gvmt compensates war-time victims
o Most states have restricted it to keep ppl from claiming it
d. Emotional/Dignitary Harm: Assault
i. RST § 21: Assault- intent to cause reasonable apprehension of imminent
battery
 Need: Intention + Act
ii. Δ must have intent to cause offensive contact or imminent apprehension (Π’s
awareness of threat)
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iii. Rule: Mere words are not enough to constitute assault
e. Emotional/Dignitary Harm: OFFENSIVE BATTERY
i. RST § 18: Battery: Intent to cause offensive contact + offensive contact
ii. If no intention, then only negligent, reckless act, NOT offensive battery.
f. Emotional/Dignitary Harm: False Imprisonment
i. False Imprisonment- Δ intends to confine Π w/in boundaries fixed by Δ, and Π is
conscious of the confinement or harmed by it
 Intent is all that’s necessary; mistake is not a defense.
 False arrest = false imprisonment
 Future threats do not equal false imprisonment
ii. Bird v. Jones- Π disallowed to continue down blocked highway
 Rule: Effective confinement required for false imprisonment.
iii. Possible Scenarios:
 Acts of negligence (i.e. stuck on elevator/plane) do not equal false imprisonment.
 Confined in a room, but no restraint? Not false imprisonment
 Confined in a room, but a high window gives escape? False imprisonment
iv. Coblyn v. Kennedy’s- old man trapped in store after suspected shoplifting
 Rule: Short-term ‘imprisonment’ against shoplifters ok if reasonable (equivalent
to citizen’s arrest). Time/place/manner is critical to reasonableness.
g. Emotional/Dignitary Harm: Intentional Infliction of Emotional Distress
i. Usually parasitic- attached to another claim; courts disfavor IIED w/o parasitic
attachment
ii. Emotional Distress- when Δ intentionally inflicts through extreme/outrageous
conduct w/a causal connection severe emotional distress
iii. 3rd parties difficulty
 RST- majority rule- Family members, if present, may recover; 3rd parties
can recover, but (slight) bodily injury/ physical contact is required.
iv. Mishandling a corpse- subject to liability for IIED; only family members can
recover; punitive damages sometimes allowed; shared crim/civil liability;
aggravating element- culture
v. Beckstrom’s Socio-Biological Theory- “last of the line” arguments should be
allowed; judges leery b/c suggests some children worth more than others (i.e.
adopted ones); courts should respect impulse of importance of replicating DNA
III. STRICT LIABILITY AND NEGLIGENCE
1. Brown v. Kendall- man tries to separate fighting dogs, accidently hits Π w/stick
a. Rule: Negligence is deciding standard: If Δ was using “ordinary care”- no liability.
2. Fletcher v. Rylands 1- Δ’s reservoir leaked, damaging Π’s coal mine
a. Rule: Δ is strictly liable regardless of intent/negligence.
3. Rylands 2: Rule: Strict liability applies to damage caused by activities/items originating
from Δ’s property (i.e. cattle, privy, alkaline works, water reservoirs at the time)
a. Posner: Negligence is the most effective system; strict liability forces costinternalization, leaving it to the market to dispose of inefficient activities
b. Duncan Kennedy- here, class issue, courts are protecting the nobility
4. Rylands 3: Rule: Rylands is strictly liable b/c non-natural use (creation of reservoir).
If natural use (mine coal, water percolates through to mine below)- not liable.
a. Defense only if act of god causes the damage
b. U.S. quickly rejected having a dominant system of strict liability 
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5. Brown v. Collins- horse startles, breaks lamp post
a. Rule- SL not applicable b/c horses common and Δ used reasonable care
b. If U.S. had applied Rylands test during Indust. Rev. would have cut growth
dramatically
6. Powell v. Fall- sparks from steam engine cause fire on Π’s property
a. Rule: When statute clearly states liability, common-law supplantedNEGLIGENCE PER SE.
b. Most statutes set a minimum standard of care; compliance w/doesn’t mean you’re
reasonable/ not liable. May be found negligent per se, but this doesn’t ensure liability.
Must still find unreasonableness was legal cause of injury. However, reasonableness
never plays a role in strict liability.
7. Holmes- p. 146, 77- importance of an objective standard
B. Strict Liability and Negligence: Modern Times
1. Negligence (question of degree) vs. Strict Liability (Check social attitude toward
conduct; then  liable or not).
2. Stone v. Bolton 1- Π Stone hit by cricket ball from cricket ground close to public road.
Δ found negligent.
a. Rule: One is negligent if there was a reasonably foreseeable risk of severe injury w/no
effort to mitigate.
3. Bolton 2: Δ prevails; Rule: In negligence, consider “question of degree”- 1. remoteness
of risk of injury and 2. seriousness of consequences. Liability based on negligencereasonable standard of care.
a. D. Kennedy would say law is favoring upper class.
b. Proper rule for sports teams (negligence v. SL)? Turley- SL, stadiums are CCA (most
information, insurance, internalization of cost, gives business incentive to be safer,
forces businesses to bear the cost of their activities or be forced out)
4. Hammontree v. Jenner- epileptic driver crashes into store, injuring Π
a. Rule: No negligence if taking due care and suddenly overcome by medical condition.
b. Rule: SL should apply to unforeseeable instances.
IV. NEGLIGENCE
A. Introduction
1. Turley: Determination of the ‘reasonable person’ standard is relative to the situation,
culture, society, etc. NOT just duty.
2. Elements (§ 281):
a. duty by Δ to act/refrain from acting
b. breach of that duty by Δ’s failure to conform to required standard
c. sufficient causal connection btw the negligent conduct and Π’s injury
d. Actual harm that is measureable/compensable
e. and… w/in scope of liability
i. i.e. proximate cause- not necessary though
3. RST § 282: Negligence- “conduct falling below the standard established by law for the
protection of others against unreasonable risk of harm”
a. The test is objective
b. Care must be reasonable, not perfect
B. The Reasonable Person
1. Knowledge, Experience, and Perception
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a. Reasonable person consists of: Δ’s knowledge and observations, what average society
would do (calculation of the risks), Δ’s possible superior intelligence in an extreme
case
2. Knowledge Common to Community
a. The conduct of a ‘prudent man’ is applied to negligence, which is an objective
standard.
b. Vaughan v. Menlove- ‘dumb’ farmer, dangerous hay rick, burns neighbor’s property
c. Rule: Sub-standard intelligence (subjective arg.) no excuse; must still meet
objective standard (or everyone would claim to be dumb).
i. Holmes- the law uses an objective standard. The law sees you not as God sees you.
3. Activities Requiring Skill
a. Performing a licensed/ special skill activity mitigates consideration of personal
attributes (age, impairments, etc.), holding the person to the standard of that class.
b. Daniels v. Evans- 19 yr. Π old killed when driving a motorcycle
i. Rule: If participating in an adult activity, held to an adult standard of care.
4. Age
a. Children
i. If adult activity, held to reasonable, adult standard (Daniels).
ii. Otherwise, children who commit negligent acts are held to a subjective standard,
considering the age, maturity, and intelligence of the child. < 4 (no capacity for
reasonability); 4 – 7/11 (presumption of no capacity); By 11, presumption of
capacity; After 14, considered to have capacity.
b. Rule: Licensed Activity- MUST meet reasonable person standard.
i. Roberts v. Ring- 77 yr. old man w/sight/hearing issues hits 7 yr. old
5. Physicians
a. Majority- Reasonable person = customary practice of reasonably well-qualified
practitioner, licensed or not.
b. Minority- reasonable person = “- - -” + local conditions
6. Physical Characteristics/ Disabilities
a. Rule: Public areas must be made safe for all; foreseeability requires anticipation of
blindness, height differences, and even intoxication (public policy incentive).
b. Fletcher v. City of Aberdeen- City leaves unfenced ditch by sidewalk, blind Π falls,
injured
7. Mental Capacity
a. Rule: Insanity is a defense to negligence ONLY when sudden.
b. Breunig v. American Family Ins.- Δ has history of mental illness, thinks God is
directing her car, crashes into Π
c. Question to ask: should Δ have known or taken preventative steps?
C. Calculus of Risk
1. General:
a. Two levels:
i. Commonsense version of negligence
ii. Economic version based on costs and benefits- ‘calculus’ of risk
 A reasonable person is not required to avoid all accidents or always pay liability
 In negligence, you may kill/hurt a person and not be liable; assumption that some
acts are reasonable
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b. Risk-Utility Test: Hand Formula:
If B < P x L  liability for negligence
i. B – the burden/cost of adequate provisions to avoid the accident
ii. P – the probability of the injury
iii. L – the loss/injury itself
iv. If B > PL  no negligence liability
c. Theory:
i. Posner- Hand formula maximizes efficiency b/c it allows people on the ground to
make the appropriate decision; applied on small and large levels  wealth
maximization
ii. Calabresi (SL is most efficient method)- Hand formula isn’t that efficient
 Does not consider contributory negligence (common law rule- where if you’re
1% negligent, you get 0); this factor alone kills its efficiency
 i.e., if Δ had a low B and high PL, but Π is 1% negligent- Π gets nothing
and Δ walks away
 Better: Hand w/a factor for mitigation of contributory negligence
 Also- Hand does not consider whether Π could have avoided the accident at the
lowest cost
o Suggests ‘reverse Hand formula’- look at it from the other party’s side, find
the cheapest cost avoider  SL
 Ford Pinto case- calculated cost of projected deaths, BUT didn’t factor in
punitive damage, so Ford ended up losing a lot of $
d. United States v. Carroll Towing- birth of Hand formula; Barge owner took
unreasonable risk by not staying in attendance of barge that got loose, sunk, could
have saved cargo
i. Rule: Π’s negligent acts DO factor into risk/negligence.
2. Determination of “PL” or Magnitude of Risk
a. Consider extent of damage, societal value, and probability (i.e. people more valuable
than property)
b. Blyth v. Birmingham Water Works- coldest frost on record, valve pops, Π’s
property flooded
i. Rule: No duty of care to mitigate exceptionally unforeseeable risks.
ii. Turley: Valve installer is CCA.
c. But see Osbourne- driver opens door, clips handlebars of bike
i. Rule: Calculus of risk must take societal benefit into account; humans live in
association, and duties/rights are relative.
3. Determination of B- Burden of Alternative Conduct
a. Cooley v. Public Service Co.- wire falls, explosive sound, woman suffers neuroses
i. Rule: If no better option exists, Δ will not be held liable for choosing the safest
option.
b. Andrews v. United Airlines- bag falls from overhead compartment, injuring
Andrews. Court- injury was foreseeable, and United could have installed nets at a low
cost.
i. Rule: Common carriers are held to a higher standard, so they can be held
liable for less negligence.
ii. Post Remedial Repair Rule: you cannot use the fact that Δ made a safety reform
against the Δ. But, you can say that other companies are using the safer design.
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4. Conduct in Emergencies
a. Sudden Emergency- just act reasonably
b. Danger invites rescue.
i. Eckert v. Long Island R.R.- baby on tracks, man runs to save, injured by train
 Rule: Cause of peril can be held liable if the person’s act is reasonable.
 Rule: Rescue of life, even if low probability of success, will not be punished.
D. Custom
1. Customary conduct NOT controlling.
a. TJ Hooper 1- Tugboat operators step outside of customary precaution by not having
cheap radios that would have warned them of the storm (prevented loss of cargo)
i. Rule: Customary precaution is significant.
b. TJ Hooper 2- Rule: Custom is not controlling proof of reasonableness. Better to
apply the Hand Formula.
i. Even if only one company has adopted the precaution, it may still be a reasonably
required action.
2. Professional/Medical Exception
a. Lama v. Borras- Π has back surgery, Dr. does not follow prudent procedure/custom.
i. Rule- In professional misconduct, look at what the current standard
procedure- what a reasonable doctor would have done.
b. Helling- Π, 32, not tested for glaucoma, which was industry custom for people under
40. Court rejected this arg., finding the entire industry unreasonable.
c. Canterbury v. Spence- Δ, Dr., didn’t warn Π (receiving back surgery) of 1% danger
of paralysis b/c of industry custom. Reject by court.
i. Rule: Reasonable standard of care (here informed consent) overrides custom if
custom is unreasonable.
 Exceptions made if patient incapable of consent of disclosure poses risk of harm.
d. Locality Rule- a Dr. could argue that his conduct is not considered malpractice in his
locality; this defense is no longer allowed; doctors held to a national standard
E. Statutes and Regulations
1. General
a. Negligence per se- jury can skip calculus of risk by determining someone violated a
standard of conduct (usually codified in municipal code or statute)
i. Standard of conduct required for an activity (must have these
qualifications/training); if standard of care lacking  negligence per se
ii. even if negligent per se, may still not be liable unless Π shows you were factual
cause of injury and there are no defenses
iii. even if not negligent per se, not conclusive, as a ‘reasonable person’ may be
required to take greater precautions
iv. Allows bridge for jury to go straight to causation
b. Public Choice School- issues with statutes being gap-filled by judges
i. Feres Doctrine- military personnel are not allowed to sue the federal government for
damages for injury; this was created by the Sup. Ct. when it was gap-filling the
FTCA
 Easterbrook- dealism- would sharply criticize
 Macy- do gap-fill; interpret w/the public regarded purpose
c. Martin v. Herzog- Π driving w/o headlights, crashes into Δ, Π killed.
i. Rule: If negligence by statutory infraction is linked to the accident, it is admissible.
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d. Brown v. Shyne- Brown practicing chiropracty w/o license paralyzes Shyne.
i. Rule: If you hold yourself out to be licensed in that profession, you are held to
that profession’s standard of care.
e. Uhr- Π suing school system b/c school didn’t follow statutory req. of scoliosis check
i. Rule- In some cases, statutes are meant to be a guide to help society. In that
instance, the institution is NOT to be held to negligence per se.
2. Dram Shop Statutes
a. Statues used statutes to change the common law rule (where previously you couldn’t be
held liable for over-serving)
b. General Rule- you are legally liable if you continue to serve someone who you could
tell was already intoxicated
c. Cases usually do not involve drunk suing the bar; Most involve a 3rd party injured by
the drunk suing the bar
d. 2nd generation of dram shops- homeowners being sued (began as negligence per se,
often involving serving of minors who then wrecked); also frats/sororities; stadiums
i. Also- company parties; avoid liability by: having cash bar, drink tix, taxi vouchers,
have boss there, and make hotel rooms available
F. Judge and Jury
1. Torts is a jury-driven field
a. Decisions of fact by a jury get significant deference in court of appeals
b. Findings of law (by the judge) are much easier to overturn- no deference
c. Mixed legal/factual questions
i. Most circuits give de novo review, treating them as questions of law
d. Restriction of evidence by the judge that the jury may hear- controversial
i. Socio-Biological School- jurors should be allowed to consider the loss of one’s
DNA w/the death of a child
ii. Judges will not allow testimony that gives validation to prejudices (i.e. religious)
2. Jury Nullification
a. Judges scrutinize attorney instructions to ensure ‘jury nullification’ isn’t being argued
G. Proof of Negligence
1. Res Ipsa Loquitor
a. Res ipsa loquitor is NOT factual causation
b. Standard: You must show that the accident:
i. wouldn’t ordinarily occur
ii. caused by an instrumentality exclusively in control of Δ
iii. Not due to any voluntary action on part of Π
2. Basic Exclusive Control
a. Byrne v. Boadle- Π struck by flour barrel being lowered on Δ’s premises
i. Rule: Presumption of RIL for torts arising out of Δ’s possession property.
3. Right or duty to control will satisfy “exclusive control.”
4. Grenade w/short fuse- “exclusive control” was at the point of manufacture, RIL satisfied.
a. Just b/c a product has been in the stream of commerce for a long time does not mean it
is not still in the exclusive control of the maker.
b. 1st element is the POE- there is no other explanation
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5. Colmenares v. Sun Alliance Ins.- escalator malfunctions
a. Rule: Immediate agents, common carriers, of public grounds are directly responsible
for negligence of devices on their premises despite indirect control. Duty is nondelegable- this is the case in general in areas where public is allowed.
i. Independent Contractor Doctrine- creation of sub-contractor co.s to shield liability
6. Ybarra v. Spanguard- Π, patient, injured while undergoing surgery
a. Rule: You can apply RIL regardless of how many Δs there are.
i. Likely helpful where there is cohesion in the profession/situation- i.e. athletes,
police.
b. Turley: Conspiracy of silence problem- doctors were covering up for each other.
Using RIL forces someone to be honest.
V. CAUSATION
A. Introduction: 2-Step Test
1. Cause in Fact (Factual Cause)- “BUT-FOR” TEST
a. You must first show the act of unreasonableness was the factual cause of injury, and
later that it was the legal cause
b. Similar to and often confused w/RIL; Differences:
i. someone may be unreasonable under RIL but not under causation
 i.e. argument that sponge left in abdomen caused cancer; may be successful
w/RIL, but not causation of cancer
c. Usually straightforward, handled as a ‘But-For” test- the harm would not have
occurred absent/ but-for the conduct
2. Proximate Cause (Legal Cause)
a. 2 Approaches:
i. Forward Looking Approach
 Was the chain of events foreseeable/ probable?
 Judgment made from standpoint of Δ at time of act
 Denies recovery of harms not w/in the risk
ii. Backward Looking Approach
 Superceding/ intervening cause?
 Looking for any 3rd party/ natural event severing link btw Δ and Π
B. Cause in Fact/ Factual Cause
1. The injury would not have occurred “but-for” Δ’s conduct.
2. Standard- Basic “but-for” proof must exist. Can’t be speculative/ unlinked to Δ.
3. NY RR v. Grimstad- husband falls in water off boat, Π can’t find life vest, claims but-for
a. Rule: Speculative ‘but-for’ causation is not enough to show negligence.
4. Zuchowicz v. United States- woman prescribed max 2x recommended dosage  fatal
disease
a. Rule:
5. RST § 26: Burden of proof is on Π to show harm is attributable to Δ.
a. Medical situations, consider: Daubert (majority), Frye (minority).
6. GE v. Joiner- Π, electrician has cancer; splashed w/carcinogenic coolant, but also
smoker
a. 2 Standards:
i. Frye Standard- you can only use expert testimony that is “generally acceptable”
(published, recognized) (higher bar than Daubert). Pro-jury.
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ii. Daubert Standard- rules of evidence don’t require scrutiny of expert testimony,
but judges should scrutinize testimony to prevent “bad science.”
 Court is the “gatekeeper,” determining if testimony is relevant and reliable.
 Pro-judge- allows judge ability to kill a case before getting to the jury.
b. GE brought back a general Daubert standard, where judges play a more aggressive
role, allows judge ability to make a legal and factual determination regarding GE’s
standard of the expert’s theory.
i. Madisonian- distrust judges, elitist counter-majoritarians
7. Herskovits v. Group Health- late diagnosis of lung cancer; Π’s survival chance reduced
a. Rule- “lost chance reduction rule”- the test is “but-for” the act, there would be higher
survivability chance (stnd cause in fact Q). NOT “but-for” the act he would’ve
survived.
b. Majority is- loss of any chance rule; Minority- 50% chance rule.
8. Concurrent, indivisible injury – held jointly liable. If only one Δ found, 100%
responsible.
a. Kingston v. Chicago RR- 2 fires joined, burning Π’s home.
i. Rule: In multiple causation cases, each act is regarded as a cause of harm.
ii. Rule: If possible apportionment. If Δ’s acts could’ve been sufficient to cause the
tort, Δ can be wholly liable.
9. Concurrent, independent tortfeasors, one cause – jointly/equally liable. If only one Δ
found, 100 % responsible.
a. Summers v. Tice- 2 hunters, on either side of Π, shoot Π, fault not divisible
i. Rule: When multiple parties are negligent and you can’t prove which caused
the injury, the injured party can hold all negligent parties responsible.
ii. Turley: ‘Joint and several’ liability encourages responsibility of all culpable.
10. Industry Liability
a. Enterprise Liability – sector of industry responsible for tort is identified, and all
neglected to mitigate injury knowingly.
b. Market Share Liability – Maker of fungible product (drugs) unidentifiable, so each
co. is proportionally responsible, by their market share.
i. 1st question- is the product fungible/identical
ii. Sindell case- DES caused birth defects- chemically identical product, imposs. to
identify true Δ (no records)
iii. Skipworth v. Lead Indust.- child suffers lead poisoning, sue on market share
liab. Sindell rule not met b/c liability occurred over 100 yrs.- too big of a class
C. Proximate (Legal) Cause- Physical Injury
1. General
a. Proximate Cause- choke point of causation. Was ‘duty’.
i. But duty analysis still primary in common carriers, respondeat sup., no duty to
rescue rule.
b. Ryan v. NY RR- Δ negligently sets fire to own property, number of other houses
burned
i. Rule: Δ is liable for predictable damages, NOT responsible for remote
damages.
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Unforeeable/Remote/ Indirect Consequences
c. Risk Principle- Δ’s liability limited to: foreseeable consequences, persons w/in zone of
danger, risk to a class of which Π is member (not liable for harm to unanticipated
class).
i. Palsgraft v. Long Island RR- man tries to board leaving train, 2 employees help,
man drops package, which exploded, being full of fireworks
 Rule: When the harm is not foreseeable because it is too remote or is outside of
the zone of danger, no liability. Cardozo- more limited basis for liability.
o Andrews- dissent- wants wider lens w/ substantial impact test- everyone is in
the zone of danger if substantially impacted by the negligence.
 Zone of Danger Test: Is Π inside zone of danger as seen by Δ?
ii. Wagon Mound- ship spilled oil, carried by tide to Πs wharf, Π told not flammable,
welding causes fire- damage to wharf
 Rule: Proximate cause needs reasonable and foreseeable injury. Overrules
Polemis; allows court tighter control over cases, throwing out more if
unforeseeable
d. Direct Consequences Rule (minority- hindsight)
i. As long as injury is not too remote and there is a direct causal link, even if
unforeseeable, Δ can be liable.
ii. In re Polemis- charter boat hired negligent workers who started fire by dropping
board
 Rule: If direct causal link btw negligence and the tort, liable regardless of
lack of foreseeability.
 Turley- Polemis jurisdictions are expansive on proximate cause- more cases go
to jury, rather than allowing judge to dismiss on basis of unforeseeability.
e. Wagon Mound jurisdictions vs. Polemis jurisdictions- even split in U.S.
i. Wagon Mound/ Cardozo jurisdictions- look at what is reasonably foreseeable,
cutting off liability when you would not have reasonably foreseen cause of
injury
 Narrower- Cardozo- must ask if it was w/in the zone of danger (reasonably
foreseeable)
ii. Polemis/ Andrews jurisdictions- more liberal, is there a direct connection btw
act of negligence and the injury?
 Liable if you played a substantial role/ had causal connection to injury.
f. Rescuers
i. Δ is liable if rescuer reacts to peril appearing imminent w/reasonable care.
ii. Wagner v. International Ry.- Wagner falls off train, Π goes searching for his
cousin and is injured
 Rule: reasonably foreseeable someone would come to aid endangered
person; Δ held liable for proximate causation.
iii. Note- profession rescuers fall under “firefighter rule”: limiting recovery when
injured in line of duty
g. Elasticity of “Foreseeable” and “Hazard”
i. Courts can contract/expand each to further policy or scope of liability
ii. Continuum: Herbert  Virden  Polemis
iii. Virden v. Betts- Δ negligently installed ceiling, Π fell from ladder while repairing
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 Rule: Π’s own acts can be superseding if his acts are not w/in the scope of the
hazard created by Δ.
iv. Hebert v. Enos- Δ negligent leaves leaking toilet, Π waters plants, shocked
 Rule: Injury not foreseeable; looser standard than Virden.
h. Thin-skulled, eggshell
i. Δ is liable even if unaware of Π’s extreme susceptibility to harm
2. Intervening Cause
a. RST
i. NO intervening cause if: foreseeable. OR unforeseeable by type that Δ could
foresee as result of conduct.
ii. YES intervening cause if:
 Not foreseeable
 AND- type that Δ could not foresee as result of conduct
b. Foreseeable causes:
i. Coincidence/ Ordinary Act of God
 Berry v. Sugar Notch- Π driving train, tree falls, tree location violated statute
o Rule: Ordinary natural causes are not superseding and intervening.
o Rule: Statutory violation doesn’t necessarily establish causal chain.
o Turley- an intervening cause (i.e. act of God) doesn’t necessarily cut off
liability. It must be SUPERCEDING and intervening.
ii. Criminal Conduct
 Brower v. NY RR- train collided w/Π’s wagon, thieves stole Π’s goods
o Current Rule: criminal acts are presumptively superseding/intervening.
o Rule: if you leave someone disabled, you are responsible for foreseeable
consequences
c. Foreseeable Consequences
i. Marshall v. Nugent- Prince, Δ, drove other car off road, stopped to help, Π injured
when 3rd party hit him
 Rule: When you create a situation of emergency, you are liable for the
injuries that result, even if there is an unforeseeable intervening cause.
D. Proximate Cause- Emotional Distress
1. Old Rule: No emotional distress possible if indirect causal connection; Had to be a
parasitic claim- “Impact Rule”
a. Mitchell v. Rochester RR- pregnant woman miscarries after horse scare on sidewalk
2. Dillon Rule: Emotional Distress possible if:
a. At scene of accident
b. Family member; 3rd party can recover if physical contact/impact
3. Dillon v. Legg- Mother and daughter see sister killed by car. Sister in zone of danger, so
prevails, Mom does on appeal.
a. Zone of danger test collapsed; impact not necessary
b. Artificial- live TV feed not considered near accident
VI. AFFIRMATIVE DUTIES
A. Duty to Rescue
1. General
a. In U.S.- as long as you refrain from harming others, you cannot be liable for harm that
occurs; very individualistic
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b. FEMINISM: Leslie Bender- No duty to rescue rule- impact of male-dominated legal
system.
i. super-individualistic; rejects an individual’s collective responsibility
ii. divorced from morality
iii. Bender allied w/Richard Posner, who argued there should be a duty to rescue:
 inefficient to have this rule b/c many low-cost rescue cases involve a fleeting
wealth differential; problem- people don’t do low-cost rescues b/c the real value
return of the rescue is only a potential
 Requiring rescue would be efficient for society
iv. Law does not distinguish costs, i.e. low-risk rescue cases
c. Yania v. Bigan- Bigan dares Yania to jump into a water-filled hole and then watches
him drown; no duty to help/rescue
2. Buch v. Amory Manuf.- 8 yr. old trespasses into sewing mill, hand crushed
a. Rule: In case of trespassing, owner only under requirement of notification, NOT
‘rescue’ or ‘forcible exit’.
b. Exceptions: Enticement, setting traps, attractive nuisance, anticipated trespassers may
cause liability
3. Hurley v. Eddingfield- Dr. refuses to give care arbitrarily, wife does
a. Rule: Doctors have no duty to rescue/ take patients.
b. Bender- should have duty for low-cost rescue; Posner- more efficient to require rescue
4. But see Montgomery v. National Convoy- Δ trucks stalled, blocking road at bottom of
icy hill, Π’s car collided, Π injured
a. Rule: Unwarranted non-feasance can lead to liability; creation of danger can cause
responsibility to neutralize danger.
5. Good Samaritan Laws- give some protection against liability for coming to another’s aid,
but will not extend to extreme negligence.
a. Liable if one (1) fails to exercise reasonable care or (2) discontinues care, leaving
person worse off than if left alone.
B. Duties of Owners and Occupiers
1. Types of Visitors/ Respective Duties
a. Invitee  highest care (you’ve asked them to come to your property)
i. Rule: Duty to inspect/discover and make safe.
b. Licensees  medium care (social guests):
i. Rule: Duty to warn of any dangers not patent/obvious.
ii. Fireman’s Rule- police/firefighters considered licensees; only duty to warn if
you are there (b/c you didn’t invite)
c. Trespasser  Minimum care
i. Generally- no duty to trespassers; no trespass intent required
ii. Exceptions:
 Attractive Nuisance- if child trespasser, you have a complete duty to warn;
Attractive Nuisance Test:
o liable where one knows children likely to trespass, serious bodily injury
possible, risk children cannot appreciate, Hand Rule weighs against Δ
 Anticipated/Discovered Trespassers
o some states- duty to warn
o allowing trespassers onto your property can increase your duty to them
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 Adverse Possession- if you fail to exclude others from your property (usual 14
yrs. +), they can claim ownership by adverse possession
 Easement- letting people use your property for many years, they can develop a
legal claim to the use
2. Spectrum: Undiscov. Tresp.s  Discov. Tresp.s  Attract. Nuis.  Licensee’s 
Invitees
3. Robert Addie v. Dumbreck- child, habitual trespasser, injured on pulley
a. Rule: Implicit permission to stay may negate ‘trespass’ status. Must take steps to
exclude people from a common area or  easement.
4. Common Standard: General Duty of Care to all but Trespassers
a. Rowland v. Christian- Rowland, guest, injured using handle on water faucet, Δ did
not warn
i. Rule: Duty to warn licensees of non-patent dangers.
C. Bailment
1. Levels
a. Gratuitous bailment (for a friend, for free)- lowest duty
b. Bailment for hire- highest duty
2. Current trend- impose a duty or reasonable care
3. Most common types: dry cleaning, parking garage, coat-check
D. Special Relationships
1. Employee, Business Actions
a. Respondeat Superior- most common special rel’ship- master/servant,
employer/employee liability- form of vicarious liability
i. Rule: When employee is acting w/in the “scope of employment”, employer
liable; if “frolic and detour”- not in scope of employment, employer not liable
b. DJ Real Don Steele- promo event, encouraged teens to speed  car accident
i. Rule: If promo event encourages dangerous conduct, business must take steps to
mitigate risks (i.e. Filene’s Basement wedding dress sales).
ii. Rule: Duty can turn on the unique class targeted (teenagers).
2. Landlord
a. Kline v. 1500 Mass.- woman assaulted in apt. bldg. common area, lack of security
i. Rule: There are some requirements of landlords (who had exclusive control) beyond
what is required in municipal code; if crime occurring, duty to make changes.
ii. Standard: Liability if landlord knew or should have known.
iii. Argument against liability where no municipal code:
 Deference to legislature- judge should not graft onto municipal code when
decision better left to legislature.
o Counter courts must protect marginalized citizens- i.e. the poor. D. Kennedycourt must protect lower income ppl b/c legislature does not.
 Mancur Olson- Public Choice- landlords have more power in legislative
system, will push legis. to further economic bottom line  court
intervene
 Macey- rule on it to force legislature to change it
 Pigou- leave it to market?
o Pareto Superior reached w/this decision? No, there is a lose
o Kaldor/Hicks? Yes, society improved by decreasing breeding of crime
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3. People w/Unique Info
a. Tarasoff v. Regents of UC- grad student obsessed w/girl, tells therapist plans to kill
i. Rule: People in peculiar positions can have a duty to warn if obvious. Standard of
care? (for Dr.- average doctor)
ii. In general, Tarasoff can extend to doctors, media, lawyers, but not religious figures.
VII. CONTRIBUTORY NEGLIGENCE
A. Common law rule- “dirty hands”- barred from any recovery if even only 1% contributorily
negligent
B. Contributory negligence jurisdictions attempted to mediate the unfairness of the rule w/the
“Last Clear Chance Doctrine:”
1. Helpless peril- even if Π is contrib. neg., Δ is still responsible if they had a last clear
chance to prevent the peril b/c they should have known of Π’s helpless state
2. Inattentive Π- common law requires Δ have actual knowledge that Π was in peril
C. Most states went to comparative negligence
1. PURE COMPARATIVE NEGLIGENCE- requires jury to assign responsibility to
either party; take % assigned to Π and subtract it from the award
2. PARTIAL COMPARATIVE NEGLIGENCE- draws the line at 50%; if you are over
50% at fault as Π, you cannot recover; if below 50%, you will lose the % assigned to
you
3. Comparative defenses under negligence and strict liability
a. Rule: Contibutory negligence is NOT defense to strict liability! (impt. for exam)
b. Contributory fault- reduction for fault of Π, even under strict liability (RST 3rd)
i. Controversial; some argue this is a backdoor way to reduce liability)
c. Common Defenses:
i. Assumption of the risk; in intentional tort = consent; good defense in SL
ii. Express assumption of the risk
VIII. JOINT AND SEVERAL LIABILITY
A. Definition- making one Δ responsible for the negligence of all those responsible for the
injury; that one Δ can track down the others, suing for contribution
1. Must argue the individuals had a common purpose (often a financial one)
2. Parallel doctrine- joint enterprise (usually financial too)
B. Vicarious liability
1. Respondeat Superior
2. Parents- not too common, particularly w/very young children; more common- holding
parents directly responsible
IX. STRICT LIABILITY
A. Animals
1. General
a. Common law imposes SL for any wild animals in your possession.
i. Wolves most common wild pet; illegal pet in all 50 states; wolf mix also illegal.
ii. Possession?
 “dominion and control”
 Does it have animus rivertendi? Definition of domesticated animal- habit of
return/ trained to come to you
 Oil/ gas often analogized to wild animal
iii. Certain breeds of dogs treated as vicious/ wild (even if kept as a pet)
 i.e. pitbulls, Doberman pinchers
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b. 1 Free Bite Rule; NOT one free bite- negligence, unless one knows/ should know,
then SL; even if 1st bite, owner held SL if there were indicators animal was vicious
c. Zoos- protected from SL- negligence standard in most states
d. Distress Damage Feasant- if domesticated animal does damage to your property (i.e.
cattle crushes crops), you may hold the animal until owner makes payment of
restitution.
2. Gehrts v. Batteen- dog chained to pickup, Gertz asks to pet, dog bites her in face
a. Rule: SL for ‘wild’ animals (wolves, monkeys, bears).
b. Rule: Negligence (NOT SL) for common domesticated pets. Exception: Unless
owner knows or has reason to know that the animal has abnormally dangerous
propensities.
B. Ultra-Hazardous/ Abnormally Dangerous Activities
1. General
a. Abnormally Dangerous balancing factors: high deg. of risk, likelihood of harm,
inability to eliminate risk w/care, extent to which it’s not a common usage,
inappropriateness in surroundings, value to community
i. Ask: Foreseeable/ highly significant risk even w/reasonable care? Common
usage?
b. Rylands
i. Original Rule: Conduct on land in “non-natural use” w/escaping threat  held to
SL.
ii. Modern Rule: No longer necessary that conducted on land or “escapes.”
c. Spano v. Perini Corp.- Δs constructing tunnel in Brooklyn using dynamite, damage
Π’s car shop.
i. Rule: Reasonability/ intrusion irrelevant: blasting is inherently risk, held to SL
standard.
ii. Potential defense: social utility outweighs costs; hold to negligence standard.
d. Indiana Harbor RR v. American Cyanamid- Cyanamid ships toxic chemical, leak,
RR charged for cleanup
i. Rule: Due care from RR would have prevented spill, so negligence standard makes
more sense than SL.
ii. Turley: Posner sounds like Calabresi here, arguing homes near RR tracks are CCA;
Turley disagrees: RR could charge more, double hulled cars, avoid certain rails.
e. Intervention by 3rd persons, animals, forces of nature does not bar SL.
f. No SL for harm caused to abnormally sensitive activity (i.e. mink farm).
g. Defenses:
i. Π’s Assumption of the risk- bars recovery
ii. Contrib. Negl.- NOT a defense to SL
 BUT knowingly, unreasonably subjecting himself is a defense to SL
C. NUISANCE
1. General
a. Doesn’t fit well w/in SL- more stand-alone.
b. Form of action for harms that can be based on intentional conduct, neglig., or SL.
2. Private Nuisance
a. Private nuisance- thing/activity that substantially and unreasonably interferes w/Π’s
use and enjoyment of his land.
b. Vogel v. Grant Electric- cows on milk farm not producing due to stray voltage
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i. Rule: Nuisance may be either physical or non-trespassory interference.
c. Fontainbleu Hotel- Δ hotel constructing addition whose shadow would block light/air
to Π’s property in South Beach, FL.
i. Rule: Access to light/air is NOT a lawful right.
ii. Ancient lights concept unanimously repudiated in U.S.- idea that you do have some
possession of light/access; idea of your property as a cylinder going up to god.
d. General Rule: you cannot claim aesthetics as a nuisance (i.e. hot pink house).
e. Rule: Spite fences are a nuisance if wholly malicious (must serve no useful purpose).
f. Takings clause- “gvmt cannot take your property w/o compensation” related to zoning
laws (diminishing property value)
i. Renquist majority- more than occupation/ eminent domain, should entail any
diminishment of value
 Takings revolution- massive zoning laws being struck down; stopped b/c
O’Connor starting refusing to accept cases
 Scalia- framers knew of nuisance but didn’t mention it when writing takings
clause; assumption you can prohibit a nuisance w/o compensation
ii. Environmentalists horrified; striking down zoning laws  massive development in
fragile ecosystems
g. Rogers v. Elliot- Δ rings church bell daily, sunstroked Π has convulsions, Δ refuses to
stop ringing bell after asked
i. Rule: “Eggshell thin skull” rule does NOT apply in nuisance; measurement of
nuisance considers normal, reasonable person.
ii. Regulation of church- must consider social value of the activity (mosques call).
h. Ensign v. Walls- Δ breeds dogs, town grows to surround him, barking/smells bad
i. Rule: Doesn’t matter how long Δ has been there if public policy requires removal.
i. Spur Industries- geriatric development next to cattle feed lot, smells; development has
to pay for relocation- equitable remedy. Coasian problem.
j. Boomer v. Altantic Cement- neighbor landowners complain bad air
quality/smoke/dirt
i. “Permanent damages” (or no damages) may be applied if economic/ social value of
nuisance is high enough.
ii. Looks at CCA. Remedy options: 1. enjoin for period of time to give time to make
technological changes; 2. grant injunction for finite period, vacated upon receipt of
perm. damages.
 Problem- Perm. damages bars future home-owners from seeking diff. redress.
Ultimate Coasian problem- 2 resources in conflict.
 Expansion of the universe: homeowners: others suffering from pollution; cement
plant- closure causes lost jobs, lost taxes, loss of needed cement, collateral
businesses hurt
3. Public Nuisance
a. Public nuisance- an unreasonable interference w/a right common to the general public.
b. A private citizen may only seek remedy if the nuisance is:
i. Of a greater degree than to the community.
ii. Anonymous- road from Π’s house to property is blocked
o Rule: Public nuisances are to be corrected by the stated.
 Exception: If Π suffers a special and elevated harm, he may bring a
nuisance claim.
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iii. Of a different kind than the community
 532 Madison Ave. v. Finlandia Center- construction collapse causes
commercial location and surrounding blocks closed for weeks
o Rule: For public nuisance to actionable, person must have suffered injury
beyond that suffered by the community at large
iv. Camden v. Beretta- County sues gun manufacturer claiming criminal use of the
guns is nuisance b/c of governmental costs
 Rule: Public nuisance does NOT apply to products distributed lawfully (even if
they have illegal ends).
X. PRODUCTS LIABILITY
A. Introduction
1. Trend: Privity  Hidden Dangers  Escola  defective design/ duty to warn 
rescission
B. Exposition
1. MacPherson Rule: Ordinary Negligence: Manufacturer liable when:
a. unsafe condition fraudulently concealed
b. product is inherently dangerous to human life
2. MacPherson v. Buick- Π driving Buick, wheel collapses due to defect
a. Rule: Products not “inherently dangerous” may be subject to SL if negligence in
manufacturing elevates the product to a potentially dangerous item.
b. Rule: If product could foreseeably cause danger, duty to examine.
3. Escola v. Coca Cola- waitress unloading coke bottles, one explodes
a. Rule: RIL used to apply SL to products.
i. Manufacturer is CCA; RIL- liability for foodstuffs/products even when no
negligence.
ii. Takeaway- Adam Smith- hidden hand of the market used to get rid of unsafe
products; manufacturer has incentive to make products safer
4. Present Day Threshold Issues:
a. Was the product supplied by a commercial supplier in SOC (excludes casual sellers)?
b. Must be a product, not a service
i. Ambiguous ex.- tainted blood; service or product? hosp. says service, but bills you
for blood, which they received for free. Courts say “service.”
c. Has product been substantially altered, and does Π know about it?
d. Design and warning defects take an initial application of negligence standard, applying
what is reasonably foreseeable. After that, SL kicks in.
C. Product Defects
1. General
a. Products liability can come in negligence, strict liability, or warranty
b. 3 types of defect in product liability:
i. manufacturing (rarely go to court, unless “foreign object” defect)
ii. design
iii. warning (reasonableness standard under both restatements)
c. Note: Apply all 3 tests below on the exam!
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d. RST § 402A- Majority Rule – ORDINARY “Consumer Expectations” – SL
i. RST § 402A
 One who sells any product in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to his property, if
o the seller is engaged in the business of selling such a product, AND
o it is expected to and does reach the user or consumer w/o substantial change
in the condition in which it is sold
 The rule stated in Subsection (i) applies although
o the seller has exercised all possible care in the preparation and sale of his
product, and
o the user or consumer has not bought the product from or entered into any
contractual relation w/the seller (absence of privity)
 Goal- consumer protection purpose; anyone in SOC is potentially liable; cannot
warn away a defect
ii. Standard = Ordinary “Consumer’s Expectations”
 Basic Requirements:
o Applies to products only, not services
 Grey areas:
 blood = service
 Airplanes:
-Transportation is a service, BUT
-The manufacturer of the plane  product
o Must have a commercial supplier, and all liable
 Manufacturers, retailers, assemblers, etc.
 NOT- garage sale person
o Product cannot be substantially altered
 Ex.: Re-working new car’s aesthetics but failure occurs not related to
changes  not substantial alteration
 Exception: Substantial alteration may be held liable if:
 an objectively forseeable modification, OR
 Δ consents to modification, OR
 modification per instructions
e. RST § 402 Hybrid Majority Rule – “Risk-Utility” Test
i. “Risk-Utility” Test for Defective Design
 expansion of “consumer expectation”
 Can be applied as an alternative to “consumer expectation” when the consumer
doesn’t know the expectation (high tech. products)
f. Restatement 3rd § 2- Minority Rule
i. RTT § 2: Categories of Product Defects = Minority
 Categories of Product Defects: Manufacturing, Defective Design (if a
“reasonable alternative design” exists), and warning defect
o RTT § 2(b) shifts attention, increases burden on Π; Π is forced to come up
w/an alternative design
 easy if there already is an alternative design out there; if not- can really
increase litigation costs
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o Much more hostile standard- forces Π to come up w/ reas. alternative design
compared to RST § 402A, where Π just had to say current design itself
dangerous
2. Manufacturing Defects
a. RTT: Proof of specific defect not required when incident is (1) a kind that ordinarily
occurs b/c of defect; (2) when some portion of the injury can be traced to the defect.
b. Issue: RIL can only be applied to a SL standard, and here the local rule is negligence,
so RIL is substituted w/”circumstantial evidence.”
c. Speller v. Sears- house fire, Π argues caused by fridge, experts differ as to cause
i. Rule: “Circumstantial evidence” is permitted when all other possible sources of the
injury have been reasonably shown to not be the cause.
d. Warranty- when you sell something, it comes w/some kind of warranty
i. Implied warranty- minimum expectation as to the use/safety of the product
ii. Express warranty- what was expressly specified as to the capacity/use of the product
e. Food: Consumer’s expectations approach, rather than “foreign object” vs. “natural”
3. Design Defects
a. Standard: Determination of “alternative design:” production cost, effect on
maintenance/aesthetics, range of consumer choice added, risk/benefit analysis
b. Campo v. Scofield- Rule: If machine is w/o latent defect and its functioning creates
no unknown danger, manufacturer is not liable.
i. Rule: No requirement to warn against obvious dangers (hitting self w/hammer,
saw).
ii. W/most design defects, the risk is not patent, so risk is more dangerous than
expectation of ordinary consumer.
c. Volkswagon v. Young- Π killed when rear-ended and seat comes loose from car
frame
i. Rule: Products must be designed for their foreseeable uses (car accidents
foreseeable) manufacturers liable for defects in design which could have been
reasonably foreseen to cause/enhance injuries.
d. Barker v. Lull Engineering- Π injured operating fork-lift on non-level ground, falls
out
i. 2 Pronged Test: Product design is defective if either:
 Product failed to perform safely as an “ordinary consumer” would expect when
used in an “intended/reasonably foreseeable” manner
 The design proximately caused the injury & it can’t be shown that the benefit of
the design outweighs the risk (“risk utility” test)
ii. RTT took the 2nd pong and made it its rule. 3 options for products liability: 402(a),
2-prongs, RTT
e. Subsequent “Product Modification” Rule- usually not admissible evidence unless a
3rd party made the modification or modification directly altered the item that failed
f. Linegar v. Armour- officer shot under arm, where bullet-proof vest didn’t cover
i. Rule: Consumer expectation test- risk was open and obvious (not absolute defense);
can’t subject manufacturer to SL for reasonable design esp. when design chosen by
Π.
g. Halliday v. Sturn, Ruger- 3 yr. old shot self in head w/father’s gun; father ignored
safety warnings
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i. Rule: Absent legislative intent, a “consumer expectation” test will be applied to
normal handguns.
4. Warning Defects
a. General/ Turley:
i. Cannot warn away a defect
ii. Don’t have to warn every issue
 But do have to warn for the ‘worst reasonable person’
 Easily intelligible, tailored to target audience
o Anticipate your audience (i.e. multiple languages)
iii. Excessively dangerous by nature- can’t be mitigated, must warn though
iv. Foreseeable misuse
 Must always warn against/ design against foreseeable misuses
o i.e. if foreseeable misuse, don’t use easily removable guard, use immovable;
or printing press hickey w/o a press guard
v. Advertisements- marketing is part of the product; may erroneously warn
vi. Guideline for defects warnings:
 Latent  Warn
 Latent & Remote  May still need to warn
 Patent  Split Courts, some yes, some no
b. RTT § 6: “Learned Intermediary” Rule:
i. Health care providers in a position to reduce risk should be given adequate
instructions
ii. Patient should be given reasonable instructions if manufacturer knows/should know
health care providers will not be in a position to reduce risks of harm.
c. Exceptions:
i. Pharmacists are not in a position of duty to warn.
ii. Majority rule: Direct warning to consumer warranted when:
 Physician has minimal effect of decision process, OR
 Product targeted directly to consumer
d. MacDonald v. Ortho Pharm- Π used the pill, had stroke, sues for failure of duty to
warn b/c only warned of blood clot, not “stroke”
i. Rule: Learned Intermediary (if legit use of learned intermediary, manufacturer
cannot be sued for lack of warning) applied, BUT
ii. Rule: Exception: Prescribed items where patient has a larger role in deciding to use
and doctor has more silent role (i.e. only annual check-ups).
iii. Sub-Rule: FDA regulations are the floor, don’t exclude you from liability.
iv. Turley: ‘Comment K’- No SL for products of great social value
 Ex.- polio vaccine
 2 Jurisdictions:
o Majority: “my case is like a polio vaccine”
 win  look at negligence, comment k
 lose  SL
o Minority: RTT- “drug not defective in design if reas. health provider would
prescribe it for any class of patients”, i.e. negligence
 So if 1% aren’t harmed, no SL
 Problem- drugs often prescribed for off-label purposes
e. Vasallo v. Baxter- Π has silicone breast implants, injured
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i. Rule: (Negligence Standard) No liability for failure to warn about risks that are:
 Not reasonably foreseeable at time of sale, OR
 Not discoverable by reasonable testing.
f. Hood v. Ryobi- Π takes off saw guards despite warnings, injured
i. Rule: A product warning must be reasonable but does not need to warn of every
conceivable injury.
ii. Rule: But, design against/ warn against foreseeable misuse.
g. Duty to warn of dangerous products by others- even if your product is safe, if you
know during natural use will come into conduct w/3rd party’s product to make unsafe
– duty to mitigate/warn.
h. Daly v. General Motors – Π drunk, speed, loses control, ejected from car, claims
door lock defectively designed
i. Issue: can comparative negligence apply in SL cases?
ii. Rule: (outlier/ minority) Comparative negligence is possible in SL of products
liability.
5. Federal Pre-Emption
a. Damages (part of state law, individual by state)
i. Compensatory- for your costs (pain/suffering, loss of work, direct cost/harm)
ii. Punitive- if conduct so outrageous, damages to convey social judgment
 unbelievably rare, often reduced
 Sup. Ct.- Q: const. limitations on punitive damages (PD)? Yes, fed. violation if
state allows too many PD; PD > 10x compens. damages attract attn. of fed. cts.
iii. Statutory- FDA statutes can sometimes preempt tort cases if tight warning
 Traditional approach- statutes create floor, but you can still be held liable
b. Geier v. American Honda Motor Co.- Π wants to sue for no airbags, Fed. law
doesn’t require airbags, but state law forces. State law preempted by federal
legislation? Yes.
XI. DEFAMATION
A. General
1. Definition: communication is defamatory if it tends to harm the reputation of another as
to lower him in the estimation of the community or to deter 3rd persons from associating
or dealing w/him.
a. Defamation requires: (1) falsity; (2) unprivileged communication (publication); (3)
fault; (4) damages.
2. Rule: Requires publication:
a. Intentional or negligent communication to a 3rd person
b. Intentionally or unreasonably failing to remove defamatory material that he knows to
exhibited on his land/chattels
3. Rules:
a. Truth is an absolute defense.
b. Does not apply to deceased individuals.
c. Corporations and businesses can be defamed.
d. Large groups are generally not able to maintain defamation actions but small groups
may be successful (note Neiman-Marcus case).
e. Opinion is protected when based on known or stated facts (however, can be actionable
when based on undisclosed or personally known facts).
i. Parody and humor are protected as a form of opinion.
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ii. Wilkow v. Forbes- Forbes publishes article about businessman, who ‘plays
fast/loose’
 Rule: Opinion not defamatory.
 Rule: You must show it has harmed your reputation.
iii. Auvil v. CBS (Product Disparagement Libel)- Π sued CBS for segment about a
pesticide used by apple-growers linked by a report to cancer
o Rule: Where media is clearly reaching an opinion, editorial opinion is
protected.
4. Book/ newspaper/ radio/ television broadcast = single publication.
5. Intra-corporate communications are often not treated as “publications.” (variation)
(important defense against defamation; no publication- no defamation)
a. Exception: If there is a showing of actual malice, you can lose the inter-corporate
privilege. (Doe v. Gonzaga)
6. You are subject to defamation if you repeat/ re-publish a defamation
7. Defamation per se- certain areas of defamation are patently defamatory:
a. criminal offense
i. Muzikowski v. Paramount- movie based on Π’s story, adds felonious activities;
defamation per se upheld
b. STD
c. inability to perform public office duties
d. fornication/adultery
e. words prejudicing her trade/ profession
8. Watt v. Longsdon- (private libel) disparaging comments made about Π having an affair
by administrators w/in the co.
a. Rule: On privileged occasions, may state opinions. This privilege can be lost by:
i. going beyond the limits of the duty/ ordinary course of work
ii. showing of actual malice
9. Privilege
a. Absolute privileges: judicial proceedings, legislative proceedings, executive
communications, communications Π has consented to, communications btw
husband/wife, communications required by law to be published
i. Kennedy- everything in court is privileged, but what is stated outside of court can
be defamatory
b. Fair Reporting Privilege
i. Jacobson case- Viceroy Tobacco Co. sued CBS for libel for a broadcast
regarding the manufacturers supposed targeting of youth in ads. Used gvm’t report.
 Rule: Publication of the defamatory matter is privileged if the report is
summarized in fair abridgment
10. NY Times v. Sullivan- elected officials in Alabama accused by NY Times for
discriminatory practices
a. Π, public official prohibited from recovering damages for a defamatory falsehood
related to his official conduct
i. Rule: unless proven that the statement was made w/actual malice (Actual Malice
Standard- if speaker had knowledge of the falsity or reckless disregard for the
falsity)
ii. Higher defamation standard for public officials
iii. Turley: Why? free speech is a check on governmental abuse
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 prevents chilling effect on media; protests wide open debate
 public officials have a greater ability to defend themselves
b. Butts case- Sullivan extended to public figures
11. Gertz- negligence standard, not SL, when suing media
B. Slander v. Libel
1. Libel- the publication of defamatory matter by written or printed words (or its
embodiment in physical form/ any other form…)
2. Slander- the publication of defamatory matter by spoken words, transitory gestures or by
any form of communication other than those stated in Subsection (1).
3. Rule: Radio/ Television = Libel
XII. PRIVACY
A. Basic Privacy Torts:
1. Intrusion Upon Seclusion
a. Definition: intrusion upon the solitude of another; Rules: must be non-public and
highly offensive to a reasonable person, does not require publication
b. Nader case- GM’s PIs looking over Nader’s shoulder in bank
c. Desnick case- investigative reporting; ABC went into Dr. Desnick’s office
i. Rule: Journalists have no special privilege to trespass. But, no violation here b/c
where the journalists went was open to the public.
d. Food Lion case- allowed damages for trespass but not publication damages
2. Public Disclosure of Embarrassing Private Facts
a. Definition: Publicity of a private matter to a 3rd person is subject to liability for
invasion of privacy if the matter:
i. would be highly offensive to a reasonable person, and
ii. is not of legitimate concern to the public.
b. Publicity- disclosure to 3rd persons so that a private fact becomes public knowledge
c. Applies to true facts, not just false factual assertions
d. Media defense of newsworthy story
3. False Light
a. Definition: one who gives publicity to a matter concerning another that places the other
before the public in a false light
i. must be highly offensive to a reasonable person and
ii. actor had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter/ false light
b. Info must be false
c. No exception for matters of legit. public interest
d. Times v. Hill- showing of known falsity or reckless disregarding req.
4. Appropriation of Π’s Name/Likeness
a. Can be brought by estates of the dead
b. Many states require showing that appropriation done for business/ commercial purpose
c. Zucchini case- human cannonball; Held- 15 sec. clip of him on TV did amount to
stolen name/likeness
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