Torts Outline
I.
Introduction
a. Major purposes of tort law
i. To provide a peaceful means for adjusting the rights of parties who might
otherwise “take the law into their own hands”
ii. To deter wrongful conduct
iii. To encourage socially responsible behavior
iv. To restore injured parties to their original condition, insofar as the law is able.
b. Historical origins
i. Gradual acceptance of intent as basis of liability
ii. Forms of action
1. Writ of trespass: originally had criminal character, Δ was fined and
imprisoned. Only for direct and forcible injuries
2. Action on the case: developed most of tort law including nuisance,
conversion, defamation, negligence. For other tangible injuries to person
or property, indirect injuries.
a. Log thrown in highway: person hit by log has writ of trespass
against the thrower, person who later stumbles has only an
action.
b. Differences are not between intent and negligence. Depends
instead on causal sequence.
c. Development of Liability based on fault
i. Hulle, 1466: Strict Liability
1. If in the course of something lawful, injury is committed against another,
with or without intent, the perpetrator is liable.
2. Duty is to act without harming others. If one is injured accidentally,
there is an action though there was no intent.
ii. Weaver v. Ward, 1616: Liability is only avoided if the incident was inevitable
and Δ committed no negligence.
a. First occasion of not being held liable for negligence
b. Starts toward fault based liability
iii. Brown v. Kendall, 1850: Must prove Δ had malicious intent or fault, π has burden
of proof.
a. Plaintiff burden of Proof
b. There must be fault involved
c. Acting in legal duty – not liable for accidental action
d. If it is a legal action, but still a choice, then held liable for
accidental action
iv. Cohen v. Petty, 1933: Negligence does not apply to a sudden, uncontrollable
illness.
a. Reasonable care – could you reasonably foresee circumstances
v. Spano v. Perini, 1969: Abnormally dangerous activities necessitate absolute
liability.
a. Absolute liability, with or without trespass (direct force)
II.
Intentional Torts
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a. Definition of Intent
i. Garratt
1. Intent – substantial certainty is enough
2. Garratt standard: Did Δ have substantial certainty of contact. That
knowledge does not have to include certainty of harmful contact.
ii. Spivey
1. Used different rule to make available resource for Plaintiff – this is the
wrong rule, goes against the vast majority rule
iii. Fault is not necessary as long as there is intent, even with insane persons.
(McGuire v. Almy)
b. Transferred intent: May only intend assault but actually commit battery. Intent transfers
for assault, battery, trespass to land, false imprisonment and trespass to chattels.
c. Assault
i. Western Union
1. Elements
2. Intent to cause an apprehension of imminent h/o contact (defendant)
3. Reasonable apprehension of imminent h/o contact (Plaintiff)
4. Can receive damages without any actual harm.
5. Doesn’t require “actual” ability, only apparent ability. ie-unloaded gun,
etc.
d. Battery
i. Elements
1. Intent (substantial certainty of contact)
2. Harmful or offensive contact (can be objects connected to body/intimate
space)
3. Judged by objective standard
4. Subjective standard if notice is given.
ii. Restatement of Torts (1965) requires intent to cause harmful/offensive contact.
iii. Remember, sometimes battery will also include an assault.
e. False Imprisonment
i. Big Town Nursing Home – wouldn’t let man leave nursing home, tied him up
ii. Whittaker – wouldn’t let leave boat, same as turning key in lock
iii. Elements
1. Intent to cause unlawful restraint
2. Actual unlawful restraint
3. Against the person’s will
4. No reasonable/safe means of escape
5. Awareness or harm required
iv. If a reasonable route of escape exists, there is no false imprisonment. If escape is
taken through an unreasonable route, imprisoner is not liable for those damages.
v. Restatement requires awareness and harm, NY standard requires only awareness.
vi. Cannot sue for FI if being held for a crime you actually committed.
f. Intentional Infliction of Emotional Distress
i. Elements
1. Conduct must be intentional
2. The conduct must be extreme and outrageous (Slocum)
3. There must be a causal connection between the wrongful conduct and the
emotional distress
4. The emotional distress must be severe (Slocum)
5. Physical manifestation (causal link) (State Rubbish)
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III.
6. Extreme/outrageous conduct
7. Severe emotional distress
8. No transfer of intent
ii. Difference between physical injury and physical manifestation
g. Trespass to Land
i. Elements
1. Unauthorized entry
2. Intent to be where you are (Dougherty)
ii. Can exceed limited consent
iii. Don’t need actual damages
iv. Can be committed by leaving something unwanted on the land.
v. Renters may charge for trespass.
vi. No mistake allowed. May be charged even if you think it’s your property.
Defenses and Privileges (Affirmative defenses)
a. Consent
i. Judged by an objective standard
ii. Actual thoughts don’t matter unless they were manifested.
iii. There is never implied consent to unreasonable acts.
iv. In a dangerous occupation such as football, valid lines may be drawn for a
standard of conduct. (Hackbart)
v. Physicians must operate only with express consent unless the condition is lifethreatening or requires immediate attention. (De May)
vi. Consent obtained through fraud is not valid.
vii. No consent if π doesn’t have capacity (minor, mental state, etc.)
b. Self Defense
i. Elements
1. Proportional response
2. No retaliation: when threat no longer exists, no right to defend.
3. No retreat required in majority opinion.
4. Reasonable mistake allowed
ii. Usually no deadly force
iii. Insults and threats do not justify defense unless accompanied by an actual threat
of violence.
iv. Proportional force takes into account age, size, strength.
v. No liability for accidental injury to third party, intent transfers as does privilege.
c. Defense of others takes these same things into account.
i. Courts differ on reasonable mistake for necessity to take action, although
Restatement allows reasonable mistake. You have whatever privilege the person
who needs defending has.
d. Defense of Property
i. Cannot use deadly force to protect only property.
ii. May only intentionally injure a trespasser if he is committing a violent felony.
(Katko)
1. Some jurisdictions allow if notice is posted
iii. If Δ is a police officer, π has burden of proof. Otherwise Δ has burden of proof.
e. Necessity
i. Elements
1. Protect public interest
2. Exigent circumstances
3. Actual or apparent necessity
4. Decided by jury
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IV.
5. Anyone may use necessity, not necessarily gov’t officials.
ii. Public necessity has complete privilege. (Privilege puts some law back in your
hand, but cannot be used to prevent legally sanctioned acts: storing nuclear
waste, biological weapons storage, etc.)
iii. Private necessity is an incomplete privilege: did something reasonable, but at
someone else’s expense and liability exists.
1. Reasonableness (good faith), protect private property, pay actual
damages, emergency situation. –Darren’s notes
f. Justification/Discipline
i. Restraint to prevent infliction of damages is lawful (the catch-all affirmative
defense. Doesn’t fit other defenses but still reasonable)
ii. Parents and teachers entrusted with a child’s supervision may use reasonable
physical force to maintain discipline.
iii. Instructors can be subject to liability for using excessive force based on nature of
punishment, conduct of student, age and physical condition of student, motive of
instructor.
Negligence (Duty, Breach)
a. Elements
i. Duty to use reasonable care
ii. Failure to conform to required standard, breach of duty
iii. Casual connection between conduct and resulting damages
iv. Actual loss or damages
v. Objective standard (reasonable prudent person)
1. Reasonable care differs in emergency circumstances.
2. Reasonable person standard may be altered by disabilities (blindness)
(Roberts), age, (Robinson) sudden incapacitating illness, mental state,
even gender.
3. Child held to standard of children their age unless engaged in dangerous
adult activities.
4. Custom may be used as evidence of reasonable concern, but does not
eliminate negligence.
5. Foreseeability is a factor. If the circumstances could not have been
anticipated, no negligence exists.
6. If you are an expert you are held to a higher standard (Delair)
b. Professional Standard
i. Reasonable professional is an ordinary member of good standing with that
knowledge, skill, training and judgment.
ii. Objective standard is subjectified up.
iii. May be used for lawyers, pilots, physicians.
1. Reasonable attorney: lawyers will be held liable for failure to act as a
lawyer in good standing in their profession, failure to take reasonable
care, failure to use best judgment, usually liable for missing a deadline
due to mistaken fact. (Hodges)
c. Medical Malpractice
i. Elements
1. Presumed to possess skill and learning of an average member in good
standing and to apply that with reasonable care.
2. Must do something in treatment which is forbidden or neglected to do
something required by the standard.
3. Standard of practice must be shown by affirmative evidence.
4. Negligence is never presumed but must be proven. Failure of treatment
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does not equal negligence.
5. Negligence must be supported by expert medical testimony unless it is
grossly apparent.
6. Testimony of other physicians that would follow different course is not
sufficient to establish malpractice.
7. Local/National standard of care depends on jurisdiction.
a. Mostly national standard, may differ in some rural areas. Use
similar locality standard instead of strict locality standard.
ii. Informed Consent
1. Different standards: Reasonable physician, reasonable patient, actual
patient.
a. Breach of duty, failed to inform of risk
b. Causation, if informed, wouldn’t have consented
c. Harm, consequences not disclosed actually occurred
2. Doctor has to give information about treatment, available alternatives,
collateral risks.
3. Exceptions: emergency, common knowledge, if patient is in no condition
to decide for themselves.
d. BPL Analysis
i. Unusual or extraordinary situations, not a question of probability, sufficiently
serious risk
ii. Subjective standard: weigh certain circumstances, look at social policy,
efficiency rather than compensation.
iii. Weigh possible danger and inconvenience of preventing danger
1. Character and location of the premises
2. Purpose for which they are used
3. Probability of injury therefrom
4. Precautions necessary to prevent such injury
5. Relations precautions bear to beneficial use of premises
6. Ordinary care under the circumstances.
iv. Different standard
1. Probability of injury
2. Gravity of injury
3. Burden of adequate precautions.
v. Role of Judge and Jury in determining care: question of reasonableness is for the
jury. If no background or extraordinary situation, just leave it to the jury whether
they acted reasonably.
e. Using Statute to set duty – negligence per se
i. Does the statute apply? (Duty)
1. Class of persons statute protects
2. Type of harm statute prevents
3. Appropriate to use statute
a. Statute overbroad?
b. Proportionate damages?
c. Consistent with common law?
ii. What is the procedural effect? This is by jurisdiction
1. Evidence of negligence
2. Prima facie evidence (rebuttable presumption) start with the presumption
that there was negligence, unless defendant can show it was reasonable
to violate the statute.
3. Negligence per se (as a matter of law, negligence in and of it itself to
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violate the statute) unless there is a specific excuse (this is more like
strict liability, p235)
iii. Statute sets duty of care, reasonable care is not taken into account.
iv. Harm must be of the sort statute is provided to protect against.
v. Statute doesn’t set forth enforcement or punishment mechanism.
vi. Negligence per se—negligence established as a matter of law, so breach of duty
is not a jury question. Can be used if harm was one the statute was meant to
protect.
vii. Procedural Issues: Statutes can be used as negligence per se, rebuttable
presumption or merely evidence.
a. Res Ipsa Loquitur
i. The thing speaks for itself
1. P can point to the fact of the accident occurring to create an inference
that D probably behaved negligently
ii. Requirements:
1. Res Ipsa applies?
a. Instrumentality must be in exclusive control of the Defendant
b. Event is one that ordinarily does not occur w/out negligence
i. More than likely that negligence was involved
c. Some jurisdictions – was plaintiff to blame?
2. What is the procedural effect? (What should we instruct the jury?), 3 choices
(Sullivan v. Crabtree):
a. Allowing inference of negligence (jury may draw inference or not, as
judgement dictates)
b. Presumption of negligence (Jury must find negligence if defendant
does not produce evidence sufficient to rebut the presumption, but
plaintiff must still prove preponderance)
c. Presumption + Shifts burden of proof to defendant (defendant has to
prove it is more likely than not that he was not negligent,
preponderance of evidence)
iii. Effect: Crabtree
a. Inference of negligence: Majority
i. 50%, P must take it the rest of the way
b. Presumption of negligence
i. Past 50%, D must get it back to 50%
c. Presumption and burden shifts to defendant
i. Past 50%, D must get it past 50%
ii. D must show by preponderance of evidence not
negligent
iv. Policy:
1. Ibarra: D is in best position to present evidence and allow P to still
recover.
2. Larson v. St. Francis Hotel “Not limited to actual physical control but
applies to the right of control of the instrumentality which causes the
injury”
CAUSATION
1. Causation in Fact: three approaches
a. Sine Qua Non (without which it would not occur): But for Test:
i. Isolate what the negligence act is then ask: but for the negligence, would the
accident have occurred?
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b.
c.
d.
e.
ii. NO causation if the accident would have happened anyway.
iii. Causation – linking breach to damages (no causation inquiry if there wasn’t a
breach)
iv. Kramer Service, Inc. v. Wilkins “Where the issue is one which lies beyond the
range of the experience or observation of laymen and of which the can have no
appreciable knowledge, courts and juries must of necessity depend upon and
accept the undisputed testimony of reputable specialists”
Substantial Factor Test:
i. Usually used with multi factors: Where the negligence of D greatly multiplies the
chances of an accident, or is a substantial factor in causing the accident, the mere
possibility that it might fail the but for test does not break the chain of cause
1. Suspicion insufficient
2. Co-existence insufficient:
a. cut in the forehead, doesn’t mean it caused the cancer
3. Herkovitz case:
a. Illustrative of the difference between substantial factor and but
for test
In the first instance, is it more likely than not that the negligent act caused the injury
Proof of Causation:
i. Is it more likely than not that there was negligence
ii. Expert Testimony: Daubert
1. Reliability - of the expert witness
a. Published/peer reviewed
b. Methodology/scientific method
c. Independent research/preexisting?
d. Tested or can be
e. Rate of error
f. Accepted?
g. This list is neither exhaustive or required
2. Relevance - Whether testimony is relevant to task at hand
a. If we accept science as true would it help the plaintiff’s case?
b. More likely than not to have caused present injury (more than
doubles the likelihood of injury)
c. But for test w/ultimate result
Concurrent Causes:
i. Where separate acts of negligence combine to produce directly a single injury,
each tortfeasor is responsible for the entire result, even though his act alone
might not have caused it. Hill v. Edmonds
1. Can either act in concert or independently
2. Some courts have held that this is where, and only where the substantial
factor test displaces but for analysis
ii. Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co.
1. 0 but for causes (either fire would have caused the damage,
independently)
2. Substantial factor test – (burden of proof still on the plaintiff) material or
substantial element in causing plaintiff’s damage. This is fact finding for
the jury. No bright line test.
iii. Joint and Several Liability:
1. Π can show that two or more are at fault
2. Burden shifts to Δs to figure it out (Summers, two hunting guys, 2
maybes liable, both negligent, it is definite that one of them caused the
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harm. (Distinguish turkey salad case, not all negligent))
a. If both parties are negligent, they are both liable if they can’t
show proof that one alone could have caused the injury
iv. Market Share liability: mostly limited to DES claims (Sindell v. Abbott
Laboratories)
1. When P cannot identify the specific manufacturer of the product:
a. Measure the likelihood that a particular D supplied the product
by the percentage of their market share
b. Each D will be liable for the proportion of the judgment
represented by its share of the market unless it can demonstrate
that it could not have made the product which caused the injury
c. Policy:
i. Complex industrial society
ii. Spread the cost
iii. Least cost avoider
iv. Who should bear the cost, innocent P or manufacturer?
2. Proximate Cause
a. A policy driven determination
i. After determining the “but for” causation
ii. An attempt to limit D from liability for improbable and far-reaching results
b. Directness
i. The injury must be the immediate result of the negligence
ii. Direct, natural, and ordinary consequences (Ryan v. New York Central R.R. Co.)
iii. Consequences which follow in unbroken sequence
iv. Cannot be too remote
c. Foreseeability
i. D is generally liable only for those consequences of his negligence which were
reasonably forseeable at the time D acted
1. Unforeseeable plaintiff: D’s negligent conduct towards X will not be
liable to P for P being injured in a fluke accident
2. Exception:
a. Egg-shell plaintiff: “A defendant must take a plaintiff as he finds
him and hence may be held liable in damages for aggravation of
a pre-existing illness.” Bartolone v. Jeckovich
b. Doesn’t matter that they couldn’t foresee this type of damage,
they could foresee some type of damage. Polemis
d. Intervening/Superseding Causes
i. Intervening: If D should have foreseen the possibility of the intervening cause or
if the kind of harm suffered was foreseeable, D’s conduct will be the proximate
cause.
1. Intervening act is a normal or foreseeable consequence of the situation
created by D’s negligence
2. Does not cut off liability
3. Barrier at the construction site (Derdiarian v. Felix Contracting Corp.)
ii. Superseding: If neither the intervening cause nor the kind of harm was
foreseeable, the cause is superseding.
1. Superseding act is not foreseeable, independent, or far removed from D’s
conduct
2. Cuts off liability
3. Broken car trunk
iii. Criminal conduct:
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1. Not bound to anticipate the intentional criminal act of others
a. But if it was foreseeable, does not cut off liability
i. RR case w/ lighting match v. transporting arsons
(Watson v. Kentucky & Indiana Bridge & R.R. Co.)
iv. If your injury causes an irresistible impulse to commit suicide later, usually the
impulse is not a superseding cause. (Fuller v. Preis)
e. Proximate cause based on duty Palsgraff
i. Did the action give rise to a duty to a third person?
ii. Was there a duty to the plaintiff? (To whom do you have a duty?)
iii. Moves the proximate cause analysis up into the duty analysis, leaving cause-infact analysis with causation, cuts off the analysis at duty.
INSTANCES OF LIMITED DUTY
1. Failure to act
a. Typically there is no common law duty to act
i. Universities do not have to regulate the private lives of their students (Hegel v.
Langsam)
b. Duty to Rescue
i. Generally, no duty to rescue
1. Exceptions:
a. Business premise: must furnish warning and assistance to
business visitors.
b. Duty of assistance: If the danger to P was due to D’s own
conduct, or an instrument under D’s control, D has a duty of
assistance. L.S. Ayres & Co. v. Hicks
c. Assumption of duty: Once you undertake a rescue, if you fail
there may be liability. This is where Good Samaritan laws come
in to protect rescuers (doctors, and professionals usually only
ones protected).
d. Special relationships:
i. Duty to save if there is a special relationship
ii. Inn-keepers, boat captains, mutual dependence,
employers, legal custodian (nurse/patient,
police/suspect), innkeeper/guest, where you cause the
harm, automobile owner/driver, parent/child, spousal
iii. Mostly limited to where P is unable to look after himself
c. May have duty to control or warn potential victims
i. Special relationships:
1. D may have a duty to P if D has a relationship which D could have
controlled Perpetrator.
2. Factors in imposing a duty:
a. Foreseeability and severity
i. Foundational aspect
ii. In a position to discover
iii. Special reason to know
b. Ability to exercise care to prevent
c. Comparative interest and relationship between parties
d. Considerations of public policy
3. Duty to take reasonable steps to prevent or warn of the harm
a. Husband with a history of child molestation, duty to take
reasonable steps to prevent
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ii. Tarasoff: once a therapist has determined or should have determined a patient
poses a serious danger to others, he bears a duty to exercise reasonable care to
protect foreseeable victim
d. Pure Economic Loss:
i. Usually cannot recover for pure economic loss
1. Must be some physical damage, then can recover for economic loss
2. Stockton – damage to defendant’s pipes causing economic loss to
plaintiff. Court refused to hold Defendant liable for Plaintiff’s loss
3. Robins – because the physical damage happened to someone else
plaintiff cannot recover economic damages
4. Dissent – use proximate cause rule
ii. Privity of contract rule:
1. if there is a direct contract between P and D, then D may be able to
recover for pure economic damage. A third party usually cannot recover
for a pure economic damage even based on privity of contract with P. If
no contract between third party and P, even less likely to recover.
e. Negligent Infliction of Emotional Distress: no duty for pure emotional disturbance
i. Physical impact
1. Physical impact rule – denies recovery for negligently caused emotional
disturbance absent a showing of physical impact.
ii. Physical manifestation rule
1. If D (1) physically endangers P, (2) which does not result in physical
impact, (3) but does cause emotional distress that has physical
consequences P can recover
a. No physical symptoms: where there is no physical impact nor
actual physical symptoms of distress, most courts deny recovery
i. Exception: narrowly escape imminent and serious harm
to one’s own physical well being
iii. By stander rules: fear for others’ safety: split courts
1. Zone of danger rule:
a. If w/in zone of danger you can recover
i. Physical consequence + zone of danger
2. Dillon rule:
a. Balancing test: abandons physical consequences
i. Physical proximity: Was P near or far
ii. Temporal proximity: Direct emotional impact or
learning from others
iii. Relational proximity: P was closely related or no
relationship
iv. Seriousness of injury
3. Thing rule:
a. Hard and fast rule:
i. Closely related to the victim
ii. Present at the scene of the injury producing event at time
occurs
iii. Result is serious emotional distress
DUTIES OF OWNERS AND OCCUPIERS OF LAND
1. Trespassers
a. Generally, a landowner owes no duty to a trespasser to make land safe, to warn of danger,
or to protect trespasser
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b. Exceptions:
i. If the owner has reason to know that a limited portion of his land is frequently
used by various trespassers, he must use reasonable care to make the premise safe
or at least warn of dangers
ii. Once the owner has knowledge of a trespasser, the owner is under a duty to
exercise reasonable care for the trespasser’s safety
iii. Attractive nuisance:
1. When a landholder sets before young children a temptation that he has
reason to believe will lead them into danger, he must use ordinary care to
protect them from harm.
a. Attracted the child in the first instance
2. Restatement reformulation: Artificial conditions highly dangerous to
trespassing children
a. The land is where the possessor knows, or has reason to know,
that children are likely to trespass and
b. The condition is one which the possessor knows or has reason
to know and which he realizes or should realize will involve an
unreasonable risk of death or seriously bodily harm to such
children, and
c. the children because of youth do not discover the condition or
realize the risk involved in intermeddling and
d. BP<L and
e. The possessor fails to exercise reasonable care to eliminate
danger or otherwise to protect the children
2. Licensee
a. Licensee – enters the premises of the owner by permission, but for the licensee’s own
purposes (i.e. social guest)
b. Duty to licensee:
i. Take the premises of the host as they find them.
ii. Warn of known hidden dangers.
iii. Refrain from injuring willfully or wantonly
iv. No duty to inspect for unknown dangers
c. Licensee children
i. Higher duty to warn than an adult
ii. Young children that cannot take precautions on their own may leave you with the
burden of taking precautions to remedy harm
3. Invitees
a. Enters the premises of the owner by permission, but for the licensee’s own purposes
b. Persons who are invited as members of the public for purposes which the land is held
open to the public
i. Do not actually have to patron the store to be an invitee
c. Duty to invitees:
i. Reasonable care in keeping the premises reasonably safe for use by invitee
(sometimes to protect invitee form criminal attacks by 3rd parties)
1. Reasonable care:
a. Duty to warn
b. Exercise control over third persons on premises
4. Status may change during visit
a. Whelan v. Van Natta – Light off in the store backroom man falls down unseen staircase
i. Originally invitee but changed to a licensee and there was no breach of duty
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ii. Storeowner did not know the light was off so did not breach duty to warn of
known hidden peril.
5. Persons outside the established categories
a. Public servants:
i. Courts are all over the board on how to categorize these people
1. Sometimes enter for economic advantage…invitee
2. Sometimes enter for own interests…licensee
3. Some courts uphold general reasonable care
6. Rejection or merging of categories
a. Rowland: rejects all categories and establishes a reasonable actions under the
circumstances
DAMAGES
1. Nominal damages – not compensating for anything, small amounts to vindicate a right
2. Compensatory Damages – make the plaintiff whole again (closest financial equivalent)
a. Must have actual injury, unlike intentional torts, no nominal damages.
b. General Elements:
i. Direct loss of bodily functions
ii. Out of pocket economic losses stemming from injury
iii. Pain and suffering
iv. Future damages
c. Elements of damages:
i. Past physical and mental pain (usually include past medical expenses)
ii. Future physical and mental pain
iii. Future medical expenses
iv. Loss of Earning Capacity
v. Permanent disability and disfigurement
d. Special damages
i. monetary: out of pocket costs, economic loss, continued medical costs
3. Punitive Damages: punish the defendant and make an example of the defendant
a. Gore Test
i. Degree of reprehensibility
ii. The disparity between the actual harm suffered by the plaintiff and the punitive
damages awards
iii. The difference between the punitive damages awarded and the civil penalties
authorized in comparable cases
4. Judgment satisfied:
a. Action for contribution: P can recover from whatever D has the most liquid assets. Other
Ds can sue each other for contribution
b. Action for indemnification: complete reimbursement (insurance)
DEFENSES
1. Affirmative Defenses - Defendant’s burden to prove
2. Contributory Negligence
a. If the plaintiff is at fault to any degree, then plaintiff’s claim is barred (Butterfield v.
Forrester)
i. Last clear chance doctrine (Davies v. Mann)
1. If the defendant has the opportunity to avoid the problem after the
plaintiff no longer can, the defendant must attempt to do so.
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a. A defense to contributory negligence. Even if P was
contributorily negligent, the burden to avoid under the last clear
chance lies with D.
b. Whole loss still placed on one party or the other
ii. Some courts allow a “remote” standard: P’s negligence too remote or minute to
bar recovery
3. Comparative Negligence
a. Divide liability between P and D along the relative degree of fault.
i. Pure: P recovers portion of damages corresponding to D’s fault
ii. Modified:
1. P recovers as long as P fault is ≤ 50%
2. P recovers as long as P fault is ≤ 49.9%
3. P recovers only if P negligence is slight
4. None of these are all or nothing, recover percentage in proportion of the
defendant’s fault (i.e. P 30% D 70% at fault P recovers 70%)
iii. Joint and several liability is abolished
iv. Split as to whether last clear chance doctrine survives
4. Assumption of Risk:
a. If P has voluntarily assumed risk, P is barred from recovery
b. Express waiver:
i. Is it valid on its face:
1. is the language clear and unambiguous
2. does the injury fall within the language of the waiver
3. Coerced?
ii. Does the contract itself violate public policy?
1. Intentionally causes harm or engages in acts of reckless, wanton, or gross
negligence
2. Bargaining power of one party is grossly unequal to the other to put the
party at the mercy of the other’s negligence
3. Transaction involves the public interest
a. Is the service essential
i. Tunkl test: p. 628
1. Business generally publicly regulated
2. Business service of practical necessity
3. Business holds itself out as willing to perform
the service for any member of the public who
seeks it, or at lease any member coming within
certain established standards
4. Bargaining strength
5. Makes no provision to pay additional fees to
obtain protection against negligence
6. Person or property of the purchaser is placed
under the control of the seller, subject to the risk
of carelessness by the seller or his agents
c. Implied:
i. Voluntary encounter of the risk
ii. Knowledge of the risk
1. Know of the particular risk
2. Appreciate the magnitude of the risk
a. These two factors interact
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i. If your knowledge is higher, your voluntary standard
shifts
3. In a comparative negligence scheme is there room for an A of R defense?
a. Can use negligence analysis to arrive at the same thing
5. Governmental Immunities
a. Local government immunity:
i. Proprietary: acting as a private entity
1. Not immune
ii. Governmental functions: what do governments do
1. Immune
b. State government immunity
i. Ministerial: guideline rules, acting within the guidebook
1. Can be liable if performed negligently
ii. Discretionary: where the guidebook is silent or expressly leaves it to official
discretion
1. Immune from liability
2. Review of this would interfere with democratic choice
c. Federal Immunity – partially waived due to Federal Tort Claims Act (FTCA)
i. Exception – shields employee when acting in a discretionary function of official
duties
1. Was it discretionary?
2. Was it the kind of discretionary function designed to be protected?
NO-FAULT LIABILITY & OTHER THEORIES OF COMPENSATION
VICARIOUS LIABILITY
1. Liability for the acts of another
a. Respondeat Superior - employer is ordinarily liable for the injuries its employees cause
others in the course of their work.
i. Employee must be acting within the scope of employment when act is committed
b. Independent Contractor  generally no RS Not candidates for vicarious liability
i. Does the business have the right to control the physical details of work?
2. Employee
a. Respondeat superior
i. Was the employee coming and going?
1. An employee coming and going is not acting within its employment:
ordinary commute
a. Exception – when employee endangers others with a risk arising
from or related to work (Brussard, sick from fumigation)
ii. Was the employee on a frolic or detour
1. Detour – related enough to the employment to fall within its scope, acts
that are necessary for Comfort, Convenience, Health, Welfare
2. Frolic – the pursuit of the employee’s personal business
3. Factors to consider in distinguishing between Frolic and Detour
a. Employee’s intent
b. The nature, time, and place of the deviation
c. The time consumed in the deviation
d. The work for which the employee was hired
e. The incidental acts reasonably expected by the employer
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f.
The freedom allowed the employee in performing his job
responsibilities
4. Reasonable connected to work
5. Negligence analysis
iii. Intentional torts – employer may be held liable for intentional torts if they are
reasonably connected to employment (does it further the business of the
employer)Is there some other way the employer was negligent and can be held
liable
STRICT LIABILITY
1. Animals
a. Domestic animals:
i. Strict liability for animal owner when animal enters another’s land
1. except generally dogs and cats, unless knowledge of vicious tendencies
(one bite rule not borne out by cases)
ii. Strict liability only when the owner know or has reason to know of the particular
animal’s dangerous characteristics
iii. Fencing in – must fence in your animals
1. If you don’t fence them in D is strictly liable.
2. If D properly fences, held to negligence standard
iv. Fencing out – fence your own land to keep animals out
1. (Properly) Fenced – neighbor (animal owner) strictly liable if properly
fenced
2. Not fenced – Defendant no liability
b. Wild animals:
i. Strict liability for any damages that result from a dangerous propensity of the
species
2. Abnormally Dangerous Activities
a. Background case: Ryland v. Fletcher
i. Blackburn: – bring anything onto your land that could cause mischief if released
then strictly liable
1. Exceptions:
a. Acts of god
b. Acts of P
ii. Cairns: Natural – usual or customary.
1. Strictly liable to non-natural use
b. What is an abnormally dangerous activity (Miller v. Civil Constructors, Inc.)
i. High degree of risk of some harm
ii. Likelihood harm result will be great
iii. Inability to eliminate the risk w/ due care
iv. Not a matter of common usage
v. Inappropriateness of the activity to the area
vi. Value to the community
3. Limitations on Strict Liability
a. For strict liability to be appropriate, the harm must result from that which makes the
activity ultrahazardous.
b. Acts of God cannot be held to strict liability
PRODUCTS LIABILITY
1. Privity of Contract
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a. Where the duty only arises out of contract, you cannot recover unless you are in privity of
contract.
i. Nonfeasance – neglecting to do something you are supposed to do (omission)
ii. Misfeasance – doing something wrong (commission)
b. General liability:
Nonfeasance
Misfeasance
Privity of Contract
Claim in Contract
Claim in Contract
Claim in Torts
No Privity
No claim
Claim of Negligence
(MacPherson)
2. Warranties
a. Express Warranties:
i. Baxter v. Ford: Unshatterable glass – May sue without Privity of contract if
1. Foreseeable end user of product would be injured
2. If the product were negligently made
a. The defect must not be readily detectable to a person of ordinary
prudence and experience
b. The reliance must be reasonable or justifiable
i. Most require proof of reliance
ii. Restatements approach: 402b
1. One who sells chattels and communicates to the public a
misrepresentation of a material fact concerning the character or quality of
the chattel sold by him is subject to liability for physical harm to a
consumer of the chattel caused by justifiable reliance upon the
misrepresentation, even though:
a. It is not made fraudulently or negligently
b. No privity of contract
b. Implied warranties
i. Henningsen v. Bloomfield Motors, Inc. – crashes into a wall, implied warranty of
merchantability
ii. No privity of contract requirement. The implied warranty runs with the product
iii. When a manufacturer puts a new automobile in the stream of trade and promotes
its purchase by the public, an implied warranty that it is reasonably suitable for
use as such accompanies it into the hands of the ultimate purchaser.
3. Strict Product Liability
Negligence: you look at D, Strict liability: you look at the product itself
a. Greenman: A manufacturer is strictly liable in tort when an article he places on the
market, knowing that it is to be used without inspection for defects, proves to have a
defect that causes injury to a human being
i. Rationale:
1. The purpose of such liability is to insure that the costs of injuries
resulting from defective products are borne by the manufacturer
2. Warranty claims are strict liability anyway
b. Elements of strict liability
i. P must prove:
1. Injury
2. Product was being used for its intended purpose
3. Injury was due to defect in design or manufacture
4. Which P was unaware of the defect
c. Restatements 3rd approach: new and categorical approach
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i. One engaged in the business of selling or distributing products who
sells/distributes a defective product is subject to liability.
ii. Defective product:
1. Manufacturing: Manufacturing defect that departs from intended design
regardless of possible care
a. Defect must be at the time of manufacture
b. P does not have to prove how defect occurred
2. Design: Defect in design when the foreseeable risk could have been
reduced or avoided by a reasonable alternative design
a. You can usually tie in a design defect
b. BPL analysis
i. Why isn’t this negligence?
1. Not looking at conduct of D
2. After the fact analysis: You are looking at the
injury in fact and whether there are other
marketable options
3. User’s perspective
ii. Sounds a little bit like an implied warranty
3. Warning: Defect in adequate instructions or warnings when foreseeable
risks could have been reduced or avoided by the provision of reasonable
instructions or warnings (doesn’t always cure other defects)
a. Super majority: manufacture knew or should have known that a
warning was appropriate
b. Rebuttable presumption that P did read
d. Policy of strict liability in products:
i. The consumer finds it too difficult to prove negligence against the manufacturer
ii. Strict liability provides an effective and necessary incentive to manufacturers to
make their products as safe as possible
iii. Reputable manufacturers do stand behind their products, therefore all should be
responsible
iv. The manufacturer is in a better position to protect against the harm and pass the
loss on the general public
v. Strict liability already can be accomplished by a series of actions through the
distribution chain. Allowing the consumer to sue manufacturer directly is a cost
effective, time saving, and resourceful short-cut.
vi. Distributors and retailers are conduits and should not be liable for manufacturer’s
mistake
vii. The costs of accidents should be placed on the party best able to prevent the
accident. When those means are less expensive than the cost of accidents, the
manufacturer will pursue more careful means.
4. Defenses
a. Mostly apply to strict liability and warranty
b. No comparative negligence defense:
i. Assumption of the risk (Daly) (this case is by degree)
ii. Misuse of the product: Greenman
1. Complete bar to recovery
2. Ford v. Matthews:
a. abnormal, unforeseeable misuse of the product
b. If a foreseeable misuse then it doesn’t bar recovery
c. Jurisdictions with comparative negligence:
i. Apply comparative fault
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