I. COURSE OVERVIEW & INTRODUCTION TO TORTS
A. Liability without Fault
a. Two common law writs are precursors to torts
i. Trespass
1. Direct, tangible invasion required
2. No damage required
3. No fault required (direct contact alone is enough)
4. Precursor of intentional torts (battery, trespass)
ii. Trespass on the case
1. Indirect invasion sufficient
2. Actual damages necessary for liability
3. Proof of culpability (wrongful intent or negligent conduct required)
4. Precursor of negligence
b. Liability w/o intent - Thorns
i. Material falls from house and injures > liable (even w/o intent)
ii. Raises stick in defense and injures another > liable (even w/o intent)
c. Beginning of fault liability - Weaver v. Ward
i. Man liable for gun accidentally firing in military drill
ii. But if no fault whatsoever > no liability
B. Towards Liability Based on Fault
a. Transition to negligence – judges began eliminating distinction between direct/indirect harm
i. Trespass
1. Intentional act
2. No damages required
ii. Trespass on the case
1. Unintentional/negligent act
2. Actual damages necessary
b. Liability based on fault - Brown v. Kendall
i. Two dogs fighting, defendant hits plaintiff trying to stop fight
ii. If action is necessary, one is duty bound and should use ordinary care
iii. If not necessary, one should use extraordinary care
iv. “the kind and degree of care, which prudent and cautious men would use, such as is
required by the exigency of the case”
v. Burden of proof placed on plaintiff
c. Foreseeability - Cohen v. Petty
i. Man gets sick while driving, crashes, and passenger is injured
ii. Must be foreseeable
iii. Volitional act is required
iv. If unexpected, unforeseeable, and unanticipated, then accident > no fault
C. Strict Liability
a. Abnormally dangerous – Spano (blasting damages neighbor’s garage)
i. Activity inherently dangerous if it is so dangerous that even the greatest degree of
care and vigilance could not guard against harm
ii. Abandons direct force and fault requirement
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b. Policy: who should bear the cost? Gives blasters incentive to exercise more care and have
insurance.
II. INTENTIONAL TORTS – Intentional Interference with Persons or Property
A. Intent
a. Spectrum of knowledge of risk
i. Negligence: actor may know the risk exists (or be oblivious). Question is the
reasonableness of the risk, evaluated objectively.
ii. General intent: actor has substantial certainty that the risk will be realized or
iii. Specific intent: actor intends (purposes) that the risk be realized
b. Two types of intent
i. Desire or purpose to inflict have – specific intent
ii. Belief that result was substantially certain to occur – Garratt v. Dailey (Kid pulls
chair out chair) Spivey v. Battaglia (Man puts arm around shy co-worker)
c. Transferred intent – Talmage v. Smith (Man throws object at kid on shed, hits other kid)
i. If defendant intended to commit a tort, intent transfers if:
1. Defendant intends one tort, commits another
2. Defendant intends to harm one plaintiff, but harms another
d. Possible Exceptions to formation of intent
i. Age – It is only of consequence in determining what the party knew – In Garrett,
intent b/c he knew it would cause contact
1. Must be old enough to have capacity for substantial certainty
2. Parents usually held liable when no capacity for substantial certainty
ii. Mental capacity – Only of consequence if person could have entertained notion of
intent to cause harm
1. McGuire v. Almy (Woman caretaker injured by insane woman)
2. Two part test
a. Are they capable of having requisite intent?
i. Subjective test for capacity
ii. Motive doesn’t matter—just capacity
b. Did they have the requisite intent?
i. Same standard as sane person (purpose/SC)
e. Mistaken Intent – Ranson v. Kitner (Man kills dog thinking it is a wolf)
i. Although in good faith, still liable
f. Malice – Irrelevant—only “substantial certainty” requirement important
g. Distinguish:
i. The intent to do an act: D throwing rock
ii. The intent to bring about consequences of act: the rock hits someone (sufficient to
establish intent if consequence is harmful or offensive)
iii. The intent to bring about specific harm: rock breaks leg (sufficient to establish
intent, but not necessary)
iv. The intent to do an act with actual knowledge on the part of the actor that the
consequences are substantially certain to follow (this is sufficient to prove intent)
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v. The intent to do an act with knowledge on the part of the actor that he is risking
particular consequences (not sufficient to establish intent, although it can be used to
show negligence if the risk undertaken is unreasonable given the circumstances)
vi. Also, it is important to distinguish negligence and intentional torts because a cause
of action under each could yield different legal results
B. Battery, CB 30-41, Wallace, Fisher, I De S, Western Union
a. Definition: Intentional harmful or offensive contact (HOC + Intent)
b. Test: Two parts—Intent + HOC
c. Intent - two approaches
i. Formalistic:
1. Does the actor intend, or know with substantial certainty, that a contact will
result?
2. Did a contact occur?
3. Judging ex post (after the fact), was the contact harmful of offensive
ii. Restatement (more common interpretation today):
1. Does the actor intend, or know with substantial certainty, that a contact will
result?
2. Did a contact occur?
3. Judging ex ante, would a reasonable person find that contact harmful or
offensive?
d. Harmful or Offensive Contact (HOC)
i. There must actually be HOC. If not, then it is assault.
1. Intimately connected to a person’s body sufficient
a. Fisher v. Carrousel (Abruptly took plate from hand)
b. Knocking or snatching anything from P’s hand or touching anything
connected w/ his person, done in an offensive manner, is sufficient
ii. Reasonable person standard
1. Would reasonable person have found that contact harmful or offensive
iii. Crowded world – ordinary contact not sufficient – Wallace v. Rosen (Teacher touches
parent in stairway during fire drill)
1. Unless D knows of P’s sensitivities
e. § 13 Battery: Harmful Contact
i. An actor is subject to liability to another for battery if:
1. A. He acts with an intention to cause harm to a person, or a third person, or
has imminent apprehension of such harm (to make the person
apprehend/believe that contact will happen)
2. B. A harmful contact with someone else directly or indirectly results
f. § 18 Battery: Offensive Contact
i. An actor is subject to liability to another for battery if:
1. A. He acts intending to cause harm or offensive contact (as in 13a)
2. B. An offensive contact with another person liable of battery if the contact
came through an unreasonable risk of inflicting—the action would then be
negligent or reckless if risk threatened bodily harm
C. Assault
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a. Definition: Intentionally inducting reasonable apprehension of harmful or offensive contact
with plaintiff’s body
i. I de S (Woman assaulted by man while she was hanging out window)
b. Restatement §21
i. An actor is subject to liability of assault of another if:
1. He acts intending to cause a harmful or offensive contact with the person
of the other or a third person, or an imminent apprehension of such contact,
and
2. The other is thereby put in such imminent apprehension
c. Also known as an unlawful attempt to commit battery, incomplete by some reason or other
intervening cause
i. Western Union (Where woman brought cause of action against employee at phone
company)
d. Elements
i. Intent
1. Purpose or substantial certainty (SC) to bring about HOC, or
2. Purpose or SC that plaintiff will become apprehensive of HOC
ii. Imminent
1. Harm threatened cannot be in the future
iii. Apparent present ability to cause HOC if not prevented
1. Plaintiff only need think that defendant can carry out assault
2. Must be directed at plaintiff, not third party
3. Even if fake gun, still liable because it caused reasonable apprehension
iv. Apprehension must be reasonable (judged by objective RP standard)
1. Even if battery would have been impossible to carry out (fake gun, Western
Union)
2. Fear ≠ Apprehension
e. Differences between assault and battery
i. In assault, the plaintiff must be aware of the potential harm
ii. In battery, plaintiff does not need to be aware, as long as there is HOC
iii. Damages or contact not required to prove assault, but necessary for battery
f. Limitations to assault
i. Words alone are not sufficient to constitute assault
1. Must be accompanied by more—but even innocent actions could be
construed as assault under the circumstances (handkerchief as gun)
2. Previous interactions can kill limitation
a. Do previous interactions
D. Intentional Infliction of Emotional Distress
a. Restatement §46
i. Intentionally or recklessly
ii. Extreme and outrageous conduct
1. Siliznoff – Garbage collector
iii. Causes severe emotional distress
iv. Bodily harm to the other results from it, for such bodily harm.
1. Originally ulcer, vomiting or some type of physical injury necessary
2. In recent years, PTSD or depression may be sufficient
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b. Elements
i. Without privilege (e.g., boss to employee)
ii. Conduct must be intentional or reckless
a. Harris v. Jones – Mimicked stuttering, not enough for IIED
2. Intent must also include intent to cause ED
3. No transfer of intent from other tort to IIED
a. Taylor – Daughter watches dad get beaten up
4. Presence of the individual must be known (Taylor)
iii. Conduct must be extreme and outrageous
1. Exceeds all bounds normally tolerated by society
a. Words alone usually not sufficient (Slocum v. Food Stores – You stink
to me/heart attack)
b. Place/environment can compound extreme
i. One thing if at work, another if in front of family
2. Would cause ED to person of normal sensibilities (RP standard)
a. Unless D had knowledge of P’s special sensitivities
iv. Must have causal connection between wrongful conduct and ED
v. Emotional distress must be severe
1. Objective standard to determine sever
vi. Proof of damages
c. Limitations
i. Common carriers
1. Often held to higher standards; sometimes liable for insulting language
d. Bystander recovery: restatement allows for a bystander to recover if:
i. D knew of the bystander’s presence
ii. Bystander suffers bodily harms as a result of distress
iii. Conduct was directed at member of bystander’s family
1. Depends on the court what type of relationship. Some require family, some
allow fiancés, etc. to recover
E. Trespass to Land
a. Definition – An unauthorized (unlawful) entry onto land of another (Dougherty – Surveyor
mistakenly entering land; still trespass)
b. Test
i. Intent – Intent need only be to go onto land, to be in that place, not necessarily to
commit trespass
1. Transferred intent – applies
a. E.g., shooting in someone’s land and accidentally hitting owner can
bring COA for battery
2. Reasonable belief – Can still be intentional even if D has reasonable belief
land is his own
3. Altruistic intent – Trespass even if action was “socially useful” or
“beneficial”
ii. Unauthorized
1. Consent – Continued presence after P’s permission has lapsed is trespass
(Rogers – Licensed fence post left in ground was trespass)
2. Purpose – Individual must only be on land for authorized purposes
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iii. Entry
1. Accidental – Does not matter, still trespass
a. Unless physically placed on land by someone else
iv. Onto land of another
1. Air space
a. Air close to ground is inviolable part of property (Herrin – Shooting
ducks over neighbor’s land)
2. Particles/Vapors
a. Usually particles must actually accumulate; smoke usually OK unless
laden with something else
b. The ability to accumulate is the essential part, however
c. Easier to sue for nuisance than trespass
3. Possession v. ownership – prescriptive right “squatter’s rights”
4. No physical trespass – Tort of nuisance can apply when D’s actions interfere
with P’s use and enjoyment of the land
c. Result
i. Ejectment – If D is in possession of P’s land, authorities called in to enforce
ii. Title action – If dispute over land ownership, this is most appropriate
iii. Nominal damages – Even if no harm is shown, nominal damages awarded
iv. Emotional damages – Can be awarded where “trespass is deliberate and
accompanied by aggravating circumstances
III. PRIVILEGES
A. Consent: If P consents to conduct done by D or with D, recovery not allowed
a. Rest §892: “willingness in fact for conduct to occur”
b. Elements to demonstrate consent
i. Express consent: clear, intentional consent by P (rare)
ii. Implied consent
1. Implied in fact: RP would find that P’s conduct/behavior is consent
a. P’s conduct (objective manifestations of feelings; actions) used to infer
consent
b. Objective, not subjective
c. O’Brien – vaccination, actions manifested intent
2. Implied in law: Examines situation to determine if there was an expectation
of consent (all four must be met)
a. Medical emergencies, when:
i. P unable to give consent
1. Not competent (young child, although parents must
give consent)
ii. Mentally incapable (very sick) or mentally ill
b. Immediate action necessary to save P’s life/health
c. No indication that P would not consent to procedure
d. RP would consent to such a procedure
c. Limitations/Exceptions
i. Fraud/Misrepresentation
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ii.
iii.
iv.
v.
1. If P is induced to consent by substantial mistake and mistake is known to D or
is incurred by D’s misrepresentation, consent is not effective
2. Medical provider – Consent limited to authorized individuals – DeMay
(Doctor brings friend to help, woman assumes another doctor)
a. Injured party can collect for fraud
Capacity to consent
1. Young children and mentally ill cannot legally consent
2. Minors cannot consent to sexual intercourse, D liable
Scope of consent
1. Consent to contact
a. Sports: players consent to contact incidental to game itself (Hackbart –
Football, kick to the head)
i. Do not waive right to protection from all contact
b. P must show that the act was intentional, not just that it violated the
game’s safety rules
2. Medical consent
a. Consent limited to the procedure itself
b. Mohr – doctor operates on wrong ear
Consent to medical procedures
1. If it is serious procedure, consent must be given in the same language
2. Informed consent – requires a physical or surgeon to disclose to the patient
the risks of proposed medical or surgical treatment
Criminal acts – is consent to legal act valid?
1. Minority – If you consent to illegal activity, your consent is valid, can’t
recover
2. Majority – If you consent to illegal activity, your consent is not valid, can
recover
a. However, if someone is clear victim, law is written to protect them,
then minority would probably allow recovery
3. Both give an incentive for not entering into illegal activity, but one puts
liability on injurer and one puts it on 7njure
B. Self-Defense
a. Definition – A person is entitled to use reasonable force to prevent any harmful or offensive
bodily contact or confinement/imprisonment from another
b. Elements
i. Reasonable force
1. You can only use the amount of force necessary for protection against
imminent battery
2. E.g., differences in age and size are important considerations
3. Generally, D has burden of proof to show that force was reasonable (shifts to
P if D was police officer)
ii. Reasonable belief
1. Self-defense only available when D believes that force is necessary
(real/imminent)
a. Reasonable mistake by D will protect him in this case
iii. Limitations to self-defense
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1. Provocation – Most courts exclude insults/language as justification for SD
a. Does not justify battery, but may limit liability to actual
liability/punitive damages
b. If the abusive words are accompanied by an actual threat of physical
violence reasonably warranting an apprehension of imminent bodily
harm, SD reasonable
c. Sometimes provocation can signify consent to fight—in this case, SD
not justified
2. No retaliation – SD is only valid against threatened battery, no immunity
against aggressor
a. If battery no longer a threat, privilege of SD terminated and original
victim is liable for future actions
b. If the initial aggressor retreats, he also has a right to SD if his
aggressive behavior has terminated
3. Retreat – all agree that D can stand ground and defend himself as long as
force will not cause serious injury
a. Majority – No duty to R, D can stand ground/use deadly force if
necessary
b. Minority – D must “retreat to the wall”
c. Restatement – D must first assess situation/attempt to retreat, but can
use deadly force if there is even slight doubt that retreat cannot be
made safely
i. All agree that retreat does not apply in your own home—D
may usually stand ground and use deadly force if necessary
(this is increasing in scope to workplace)
iv. Injury to a Third Party
1. If D protecting himself from A injures B instead, D not liable unless D
negligent
a. Emergency and necessity of defense against A are considered in
determination
C. Defense of Others
a. Definition – D may use reasonable force to defend another person against attack
b. Reasonable mistakes
i. “Shoes” doctrine (Minority)
1. Intervenor steps into the shoes of the person he is defending
2. Privileged only when that person would be privileged to defend himself
ii. Restatement
1. Defendant is privileged to use reasonable force to defend another when he is
mistaken in belief that intervention is necessary
2. So long as mistake was reasonable
D. Defense of Property
a. Definition – Person may use reasonable force to defend property
i. Policy: Value of human life more important than property rights, so deadly force
cannot be used unless same threat reciprocated
b. Direct deadly force can only be used when:
i. Never justified in defense of property
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ii. Only justified when trespasser’s aggression is violent or threatens life
1. If unknown (intruder at night, force may be justified)
iii. Can only be used against those who unlawfully enter you land
1. Unreasonable if intrusion is peaceful and D does not ask P to leave
iv. Owner reasonably believes that w/o deadly force, serious bodily injury or death will
occur
c. Indirect deadly force (by device or other triggering mechanism)
i. Also never justified in defense of property (Katko – rigged shotgun)
ii. Only justified if force reasonable under circumstances
d. Exceptions/Limitations
i. Crime prevention
1. Deadly force sometimes can be used to prevent serious crimes; only
reasonable force can be used to prevent more minor crimes
ii. Clear notice
1. If D gives clear notice of danger to P, D not liable. If force used is still
unreasonable, however, D still liable
a. Modified in some states if D gives clear notice of danger
iii. Transferred intent
1. If D accidentally injures intruding party, still liable if the force was excessive
iv. Ejectment from property
1. Limitation on possessor’s privilege may also restrict poser to eject P from
property into position of danger
a. E.g., can’t through kid from fast moving train
2. If P’s presence endangers the personal safety of those on premises, SD or
defense of others may justify ejection
E. Necessity
a. Definition – D has a privilege to harm the property interest of P where it is necessary to
prevent great harm to third persons or D
i. Life/Property – When act done to preserve life and not just property, necessity much
more easily substantiated
ii. Difference between necessity and self-defense
1. D is injuring an innocent party to avoid danger from another source
b. Elements of necessity
i. Public necessity – provides complete immunity from liability
1. Definition – interference with property necessary to prevent disaster to
community or many people (Surocco – Blast homes to save more from fire)
ii. Private necessity – D liable only for actual/nominal damages
1. Definition – Interference with property necessary to prevent disaster to self,
property, or other persons/property (Vincent – Boat and dock, D liable for
damages done to dock, but allowed to stay in dock during storm)
2. Alternative – There must be no less damaging way of preventing harm
3. Reasonability – If damages unreasonable, additional damages may be
imposed (b/c perhaps not necessity)
4. Policy – Protect private individuals, but limit liability under necessity; unlike
public necessity, property owners act out of self-interest
c. Limitations/Exceptions
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i. Act of God – If damage came because of a result of an act of God or unavoidable
accident, D not liable because it was completely out of his control
ii. Mistakes – If act was done out of apparent necessity, necessity can still be
substantiated, and damages depend on private/public differentiation
iii. Tort liability – When private necessity substantiated, then D can only be held liable
for damages and not for tort liability or punitive damages
F. Authority of Law
a. Definition – If D commanded by LAW to do what they (police, prison officials), no liability
G. Discipline
a. Definition – Some situations and relationships warrant use of reasonable force or restraint
b. Protected relationships
i. Parent and child
1. Considerations: age, sex, condition of child, nature of offense, apparent
motive, influence of conduct on other children in family, whether force or
confinement reasonably necessary, or likely to cause permanent harm
2. Privilege extended to caretakers, although the degree of force allowed may be
less
ii. Teachers
1. Only allowable amount may be used to maintain reasonable order, even if
parents object, some degree of discipline may be used
iii. School-connected activities
1. Depends on nature of punishment, conduct of student, age and physical
condition of the student, motive of the instructor
iv. Others
1. Military discipline and shipmasters
H. Justification
a. Definition – It is the “catch-all” privilege against intentional torts under reasonable
circumstances
i. If action is reasonable under the circumstances and is preventing even more egregious
violation of rights, it may justify commission of intentional tort
ii. Burden of proof – D must still prove that his case was justified
IV. THE PRIMA FACIA CASE FOR NEGLIGENCE: DUTY
A. Negligence Elements
a. Duty: use reasonable care under the circumstances
i. Not to inflict unreasonable risks
ii. Actors must conform to a certain standard of conduct to protect against unreasonable
risks
b. Breach: failure to act in accordance with duty
c. Causation: breach of the duty caused the plaintiff's injury (both required)
i. Causation in fact (But for…)
ii. Legal/proximate cause
d. Actual loss or damage
i. Origin – “Action on the case”
ii. Nominal damages – cannot be recovered; harm must be shown
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iii. Exception: If a D’s risk-taking behavior threatens P but no harm done, there may
instead be an action for nuisance
e. Non-discrete: elements are not discrete
Determining the Standard of Care (Duty)
A. The Reasonable, Prudent Person (RPP)
a. Would a reasonable prudent person in D’s position do as D did?
b. What would the reasonable have known or done in those circumstances?
c. Consider following:
i. Lack of Mental Abilities (being dumb)
1. Vaughn – burning hayrick, D claimed he was slow
ii. Ignorance*
1. Doesn’t matter if RPP should have known
iii. Common Knowledge*
1. Forgetfulness – not an excuse for something commonly known
iv. Community Standards*
1. RPP doesn’t have to know EVERYTHING, but what is reasonably or
expected in community
2. Can’t blatantly ignore advice/standards or community
v. Gender
1. Majority – NO
2. Minority – “Reasonable Woman Standard” (Ellison – sexual harassment case)
a. Definition: What a “reasonable woman would consider sufficiently
severe or pervasive to alter the conditions of employment and create
an abusive working environment”
vi. Insanity*
1. Permanent Insanity – Never a defense, RPP standard
2. Temporary Insanity (exception)
a. Factors:
i. Sudden,
ii. Incapacitating,
iii. Temporary physical ailment, AND
iv. No way of knowing
b. Treat like sudden heart attack/seizure
vii. Higher Knowledge/Intelligence
1. Applicable if D holds self out to higher standard or is a professional
2. Still taken into account if a hobby (and you still hold yourself to higher
standard)
3. Restatement: If you aren’t in the industry and you have significant knowledge
on the subject, you are held out to the higher level
viii. Emergencies (Cordas – Cabbie jumps out of car)
1. Must be unforeseen, sudden, and unexpected
a. If act was negligent under normal circumstances, it might not be in
emergency
b. Exceptions:
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i. If situation created by negligence of actor, ED does not apply
ii. Situations like hydroplaning, locking brakes, children running
in road, blinding sun, etc. do not warrant ED because they are
all foreseeable and drivers must use caution
2. Policy: RPP may act differently in an emergency, and they cannot be held to
normal standard
3. Application: Courts consider negligent conduct before the fact—not D’s
actions after the original negligent act
ix. Physical Disabilities
1. D must act as reasonable man with same physical characteristics—reasonable
blind man (Roberts – blind man not liable for knocking man over)
2. Intoxication – NOT considered physical disability
3. Policy: Incentives, don’t want to discourage those with disabilities
(distinguish from mental disabilities)
x. Children
1. DO consider age, capacity, experience, and maturity
2. Exceptions
a. Superior Capability – More may be required of a child of superior
capacities
b. Inherently Dangerous Activity – Child will be held to adult standard
(Robinson – snowmobile)
c. Adult Activities – Held to adult standard (Pipher – friend grabbed
steering wheel)
3. Policy: Stop children from doing dangerous activities
B. Custom
a. Definition
i. Custom not definitive (only probative), but reflects what a reasonable standard of care
is; can be presented as evidence
b. Sources to consult:
i. Industry standard / expert – based on experience and standard of may, helpful
ii. Bulletins, brochures, manuals – clearly available to professionals
iii. Federal standards
c. Application
i. Clear knowledge – Standard must be well defined—D must be charged with
knowledge of custom or negligent ignorance. Trimarco – Shower door
ii. Reasonableness – Jury balances custom with reasonableness of custom
d. Limitations/exceptions
i. Negligent custom – Cannot be presented as defense; some customs negligent, some
reasonable
ii. Evidentiary – Not dispositive
iii. Medical field – Custom has its limits
e. Policy: Standard is aggregate of many
C. Reasonable Prudent Professionals
a. Definition – If D possesses a higher degree of knowledge, skill, or experience than the
RPP, D held to higher standard
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i. Objective standard – It is not what one would have done having the same training
and experience as D, but rather the knowledge, training, and skill of the ordinary
member of the profession in good standing
ii. Heath – Airplane crash – NOT what “a reasonable pilot with same training and
experience would do”
b. General malpractice
i. Professionals – (doctors, lawyers, accountants, engineers, etc. must act with level of
skill required by/commonly possessed by members of the profession in good standing
1. “Average” – Not a good term, implies that 50% don’t meet that standard
2. Expert testimony – often required to establish RPP’s standard of care
(especially in technical field
3. Advanced training – If professional holds himself out to have specialized
training, then held to even higher standard
ii. Near professionals – E.g., medical interns, held to same standard as the ordinary
physician
1. Policy: Encourages supervision and greater degree of care
2. Policy: Parents should expect same quality of care
iii. Pro-bono – Same RPP standard of care applies
1. Policy: Clients should expect the same quality of work
iv. General rules
1. No guaranteed result – Client/patient cannot be guaranteed any specific
result unless expressly written into contract
2. Negligence clause – No need for clause, law applies either way
c. Attorneys and doctors
i. Held liable for three standards:
1. Learning, skill, and ability
a. Requisite degree of learning, skill, and ability ordinarily possessed by
others in the profession
b. Sources – Schooling, bar/certification, specialized knowledge
2. Best judgments
a. Doctor or lawyer usually not liable for a “mere error of judgment”
b. Unsettled law – If law unsettled, attorneys not held liable (judgment
call)
c. Policy: Professionals wouldn’t handle cases or patients if fearing
negligence; lack of representation/medical advice
3. Care and diligence
a. Exercising reasonable and ordinary care in application of knowledge
b. Liability – Failing to file suit w/in statute of limitations, failing to read
patient’s chart
ii. Limitations/exceptions
1. P’s burden - In attorney negligence cases, plaintiff-client must show that but
for the attorney’s negligence the client would have been successful in
prosecution
2. Justifications
a. When decision made in good faith
b. When law is unclear
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c. Even if “reasonable,” attorneys may differ
d. Doctors only – Custom only question to ask, usually dispositive
i. Elements to prove malpractice
1. Affirmatively proven – No assumption of negligence (e.g., patient died)
2. Expert medical testimony – required unless common sense would dictate or
negligence so grossly apparent that even layman would have no difficulty in
recognizing negligence
a. Expert “personal” opinion – Another doctor’s personal opinion ex
post not relevant (Boyce – ankle surgery)
i. Doesn’t matter how she would have done it.
b. Locality – Courts allow testimony from doctor in similar community
c. Policy concern: Courts concerned about “professional experts” who
make a living testifying in medical malpractice cases
ii. Standard of practice
1. Definition – The degree of reasonable care and skill expected of members of
the medical profession under the same or similar circumstances
2. Geographic standards – Morrison – stand/sit problem
a. Strict locality rule – standard of conduct expected of other member of
the profession in the same locality (Minority/defunct)
i. Policy issue: Preserves status quo and may allow rural doctors
to provide substandard care and shield them from liability
b. Similar community or circumstances (Majority)
i. Policy: Avoids evaluating doctors in rural community against
specialists in advanced urban areas
ii. Policy issue: Difficult determining what is a “similar”
community
c. National standard
i. Especially for specialists who are certified by a national board
within their specialty areas
ii. Jury determines what the national standard is
iii. Time standard – P must prove what standard was at time of injury (Boyce – ankle)
e. Informed consent
D. Calculating Reasonable Risk
a. Definitions
i. Unreasonableness: “the risk is unreasonable and the act negligent if the risk is of
such magnitude to outweigh what the law regards as the utility of the act or of
the particular manner in which it is done?
1. Balance risk with utility of act
ii. Utility of actor’s conduct
1. Consider the following:
a. The social value attached to interest advanced by conduct
b. The extent of chance that interest will be advanced by conduct
c. The extent of chance that interest could be advanced by less dangerous
conduct
iii. Magnitude of the risk
1. Consider the following:
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a. Social value attached to imperiled interests
b. Extent of chance that conduct will invade interests
c. Extent of harm likely to be caused
d. The number of persons whose interests are likely to be invaded
iv. Negligence (Rest 3d Torts):
1. A person acts negligently if the person does not exercise reasonable care
under all the circumstances. Primary factors to be considered in ascertaining
whether the person’s conduct lacks reasonable care are (1) the foreseeable
likelihood that the person’s conduct will result in harm, (2) the foreseeable
severity of any harm that may ensue, and (3) the burden of precautions to
eliminate or reduce the risk of harm.
b. Foreseeability test: Damage must be foreseeable (Pipher – Steering wheel—happened
before, was foreseeable that it would happen again)
i. Would RPP know to protect himself/others from such a situation?
1. E.g., Blyth – Freezing pipes not buried deep enough. Never happened before,
ruled not foreseeable
c. Social Burden/Benefit – Must weigh possible costs against public benefit
i. Social Utility – E.g., baseball field by highway
1. Character and location of premises
2. Purpose for which they are being used
3. Probability of injury
4. Precautions necessary to prevent such injury
5. Balance between precautions and beneficial use of premises
ii. Economic – (Davison – guardrails on road. Ruled too burdensome)
1. Burden must be cost-effective
d. Hand’s B vs. PL analysis – Carroll Towing – Barge breaks loose, balance cost of having
full-time bargee
i. B = Burden of adequate precautions (cost of hiring full-time bargee)
1. Affected by social utility
ii. P = Probability of risk being realized (must be reasonably probably, not just
possible)
iii. L = Magnitude of damage or injury (Liability or Loss; damage caused by barge if it
breaks loose)
iv. If B < PL, precaution should be taken, if not, then negligent
v. If B > PL, not negligent even if precaution is not taken
e. Restatement’s approach [see above definitions]
f. Consider the marginal costs:
i. The goal is to find the point at which spending $1 on precaution nets less than $1 of
benefit
ii. Want people to spend a dollar on precaution only if it will save $1 in expected
accident cost
iii. Policy: Not efficient to spend $40 to save $30 should accident occur
iv. Policy: Human life – given greater weight as a cost; how to value human life?
E. The Role of Judge and Jury (Reasons to use bright-line rules v. reasonableness standard)
a. Definition: Courts use bright-line “rules of law” for clarity; they set precedent
b. Benefits
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i. Predictability
ii. Efficiency, judicial economy
iii. Notice
iv. Clarity – when standard can be made clear, should be laid down
c. Problems
i. Inflexible
ii. Fairness is questionable
iii. Rule may not match conduct – Pokora (forced to get out of truck to check RR X-ing)
iv. Negligence – nearly impossible to create bright-line rule for negligence (RPP
evolves)
d. Development
i. Hard, fast rules continually give way to exceptions – Pokora (rule about getting out
and check tracks changed)
e. Modern day standard
i. Courts have stepped away from bright-line rules to use RPP standard
F. Statutory Violations
a. Determining reasonableness by reference to statutes:
i. Issue One: Applicability – When does a statute apply to the negligence analysis?
1. Plaintiff is in the class of persons that the statute is designed to protect
2. Plaintiff’s injury is of the type that the statute was designed to prevent
3. Court otherwise decides it should apply
a. Consider following:
i. Notice and definitions – Does statute clearly define and give
notice of permissible/illegal behavior or penalties associated?
1. Policy: If not clear, might impose to heavy liability
ii. Liability w/o fault – Would recognizing new tort duty create
unexpected liability without fault?
iii. Proportionality of tort liability – what is criminal fine in
relation to tort liability?
iv. Did injury come as direct or indirect result from D’s conduct?
v. Is statute a strict liability statute, and does it create strict
liability for tort law?
ii. Issue Two: Procedural effect – What is the procedural effect of the statutory
violation?
1. Negligence Per Se (as a matter of law)(still must prove causation)
a. Rule – A statute just establishes a fixed standard by which the fact of
negligence can be determined
i. Might shift burden of proof on excuse to the defendant OR
ii. Might simply limit defendant to “recognized” excuses
b. Examples
i. Osborne – poison not labeled – “All the statute does is to
establish a fixed standard by which the fact of negligence may
be determined”
ii. Martin – no headlights – “statute designed for the protection of
human life is not to be brushed side as a form of words”
2. Rebuttable Presumption (prima facie negligence)
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a. Shifts burden of production to the defendant (D says nothing, then
loses)
b. But ultimate burden of persuasion remains on the plaintiff
c. Excuses can go beyond recognized excuses and can include evidence
that defendant otherwise exercised due care.
3. Evidence of Negligence (Minority)
a. Jury may accept or reject as it sees fit
G. Proof of Negligence
a. Circumstantial Evidence
i. Rule: What can jury reasonably infer from evidence presented
ii. Process
1. Circumstances
a. Banana peel cases: depends on nature and circumstances
2. Inference – Where evidence suggests condition was present for a sufficient
period time to infer constructive knowledge, P need not show actual
knowledge
a. Notice – none required if reasonably foreseeable
3. Difference from Res Ipsa – in Res Ipsa, no facts are being inferred
b. Res Ipsa Loquitur – “the thing speaks for itself”
i. When is Res Ipsa applied?
1. The event must be of a kind ordinarily does not occur in the absence of
someone's negligence
a. I.e., the ordinary inference from the event would be negligence
2. The event must be caused by an agency or instrumentality within the
exclusive control of the defendant
a. If within defendant's control, the inference of negligence by defendant
is more reasonable
3. In some jurisdictions: the event must not have been due to any voluntary
action or contribution on the part of the plaintiff
ii. What is its procedural effect?
1. Inference of Negligence: Res Ipsa merely allow a plaintiff to get past a
directed verdict without offering evidence of the precaution untaken by
the defendant and creates an inference of negligence for the jury (vast
majority)
2. Rebuttable Presumption: Res Ipsa raises a presumption of negligence
which requires a jury to find negligence if defendant does not present
evidence sufficient to rebut the presumption (a few jurisdictions)
a. I.e., defendant has burden of producing evidence form which a jury
could be reasonably find that the presumption was rebutted
3. Rebuttable Presumption + Burden Shift: Res Ipsa raises a presumption of
negligence and actually shifts the ultimate burden of proof (persuasion) to
the defendant (even fewer jurisdictions)
iii. Policy:
1. Ybarra – P received unusual injuries while unconscious – D is in best position
to present evidence
2. Problem: Holds parties liable that were innocent
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V. THE PRIMA FACIA CASE FOR NEGLIGENCE: CAUSATION
A. Causation in Fact
a. Sine Qua Non: “But for” test (Perkins – Train going 37 mph instead of 25 mph – ruled
NOT but for)
i. Application – Isolate negligent act – “BUT FOR negligent act, would accident have
occurred?”
1. More likely than not that negligence caused injury
2. Must link negligence at issue and damage at issue
ii. Exception – Even if “but for,” did D’s negligence actually make a difference?
iii. Policy problem: but for causation chain is infinite (need proximate cause)
b. Substantial Factor Test (Only for unusual circumstances) Anderson – two fires at same
time
i. Definition – When two causes jointly bring about and event and either of them,
operation alone, would have been sufficient to cause the identical result, both are
liable if each of their acts was a “substantial factor” in causing the injury
ii. Application – D’s conduct is a cause of the event if it was a material element and a
substantial factor in bringing it about
1. Loss of chance – sufficient
a. Medical – If jury determines D’s actions alone increased risk of harm
i. Herskovitz – Survival rate dropped from 39%-25% b/c
misdiagnosis
b. Damages – Award based only on damages caused directly by
premature death (doesn't fully capture the fact that they might have
survived)
c. Concurrent Causes
i. Rule – When separate acts of negligence combine to produce a single injury or
single “but for” cause, each tortfeasor responsible for entire result, even though his
act alone may not have caused it
1. Acts can either be in concert (Summers – individual hit, group of hunters
liable) or independent (Hill – truck in road + negligent driver)
ii. Joint and Several Liability
1. P must show that two or more are at fault
2. Burden then shifts to each D to dispel negligence if they can (Summer – 2
shooters)
3. Result:
a. P can choose which one they want to sue (or both)
b. P chooses who they will collect from
i. Tortfeasors can then collect from each other
ii. Policy: Burden should not be on injured party; P shouldn’t
have additional duty
iii. Market Share Liability (Enterprise liability) – “Who contributed to the creation of a
general risk of injury?” (Sindell – Morning sickness drug; P not able to identify
manufacturer, so each liable based on market share)
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1. Rule – Possibility if P cannot identify a specific manufacturer of a product b/c
passage of time and D’s drugs are fungible
a. Measure likelihood – particular D supplied product by the percentage
of 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 that caused the injury
2. Policies
a. Complex society – Manufacturers better poised in complex world to
warn consumer of risk and make sure products are safe
b. Least-cost avoider – D in better position to burden the cost of injuries
c. Spread cost – Cost should be spread evenly and fairly
B. Proof of Causation
a. Rule – P must show that he was “more likely than not” injured b/c of D’s negligence
b. Frye Test (old) – only required that evidence was based on scientific technique generally
accepted as reliable within scientific community
c. Daubert Test (for admissibility of expert scientific testimony)
i. Reliability
1. Reflects scientific knowledge
2. Peer reviewed
3. Can it be tested, replicated
4. What kind of error rates do we have
5. Known rate of error
6. Significant factor – Conclusions based on independent and preexisting
research better than as result of litigation
ii. Relevance – Is proposed testimony relevant to the task at hand?
1. Fit – logically advances a material aspect of case
2. Causation – It must have (1) actually caused the defect or (2) more than
doubled the likelihood (e.g., 4/100 chance to 9/100)
d. Evidence – P must show by a preponderance of evidence that D is liable
C. Proximate Cause
Ryan
NY Standard
Palsgraf (Maj.)
WM #1
WM #2
Palsgraf (Min.)
1 House Rule
1st Adjoining
Landowner
No liability
Reasonable
outside circle of person would Duty to Society;
Zone of Danger
reasonable
foresee type of
Causation
foreseeability
risk
Polemis
Bartolone
Direct and
immediate
effect
Take P as is
a. Completely policy driven determination
b. Direct v. Remote Causes – Polemis – plank fell, caused spark and explosion
i. Direct Rule
1. Not foreseeability, direct and immediate effect
2. Unbroken sequence (as in Polemis)
3. Immediate – Injury was immediate result of negligence
4. Natural/probable consequence (not a concurrence of accidental
circumstances D can’t control like wind/heat)
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ii. Remoteness Rule – D liable for proximate damages that result from act, not remote
damages.
1. One-house rule – Liability only extends to first damaged house – Ryan (RR
Co. only liable for first house in fire to avoid crushing liability)
2. Landowner rule – Liability extends to the first adjoining house – NY rule
iii. Problems
1. Limits – No reasonable limit for D’s liability
2. Incentives – How does punishing for uncontrollable events change actions?
3. Insurance – How can people buy insurance for things that they cannot plan
for?
c. Foreseeability/Scope of the Risk – D is generally liable only for those consequences of his
negligence which were reasonably foreseeable at the time D acted
i. Unforeseeable Plaintiff – Although D’s act exposed a certain group of potential
victims to a foreseeable risk, the person hurt was NOT a member of that group
(Palsgraf – woman injured by scale an “unforeseeable plaintiff”)
ii. Unforeseeable Manner – A foreseeable result can occur even if it comes about in an
unforeseeable manner (e.g., gas-soaked rat causes explosion by open flame)
1. Given the circumstances, would the result have been reasonably foreseeable?
iii. Unforeseeable Result – The foreseeable P has been injured, but an unexpected extent
or type of harm has occurred.
1. Unforeseeable type of injury
a. Polemis – Liability for unforeseen consequences (as long as direct)
b. Wagon Mound 1 – No liability for consequences outside “circle of
reasonable foreseeability”
2. Unforeseeable type of risk
a. Wagon Mound 2 – RPP would foresee this type of risk (even if small)
3. Unforeseeable extent of injury
a. Egg-shell plaintiff rule – If D negligently causes a foreseeable injury
or impact, D is liable for any additional unforeseen physical
consequences
i. Must first have foreseeable physical damage for this to apply
ii. Bartalone – P & D in car accident due to D’s negligence; D
mentally breaks down
b. Policy – The damage here personal injury, not property; courts
generally allow more recovery for personal defense
4. Policy
a. Economic – Actors need to foresee risks to prevent/insure against
them
d. Proximate Cause Based on Duty – (Palsgraf) did action give rise to a duty to 3rd person?
i. Cardozo – Must have a specific duty to P
1. Was damage to P foreseeable? If not, then no duty.
2. Was P within “zone of danger”?
ii. Andrews – Have a duty, regardless of reason, and then you look at causation—limits
liability by causation
1. Was damage to anyone foreseeable? (Duty analysis is too narrow)
2. If damage is caused, then duty breached (Look at causation)
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3. The further from direct cause, the more intervening causes, so less liability
4. Policy: Fairness – one should make good for every injury flowing from
negligence
e. Intervening/Superseding Causes – Felix – Construction, seizure, truck into boiling enamel
i. Intervening (foreseeable) – A force which takes effect after D’s negligence, and
which contributes to that negligence in producing P’s injury
1. Rule – If D should have foreseen the possibility of intervening cause or if the
harm suffered was foreseeable, D’s conduct will be proximate cause
2. Definition – Intervening act must be a normal or foreseeable consequence of
the situation created by the defendant's negligence
3. Effect – Does not cut off D’s liability
ii. Superseding (not foreseeable) – If neither the intervening cause nor the kind of harm
was foreseeable, cause is superseding
1. Rule – Superseding act if
a. Extraordinary under the circumstances
b. Not foreseeable in the normal course of events
c. Independent/far removed from D’s conduct
2. Effect – Cuts off D’s liability
iii. Criminal conduct
1. Not bound to anticipate the intentional criminal act of others
2. Was the criminal act foreseeable?
a. If it was, then intervening cause and D jointly liable
b. Watson – RR case, man lit wreck on fire (if intentional, not
foreseeable)
c. E.g., leaving keys in car in bad neighborhood might make you liable
for whatever happens with your stolen car (foreseeable)
3. Did D have duty to stop criminal act?
a. E.g., duty to detain criminal, fails and criminal kills someone –
intervening cause
iv. Voluntary or Impulsive
1. Rule – If your negligence causes an irresistible impulse to commit suicide
later, usually impulse is not superseding cause
2. Limitation – Voluntary means it can’t be an irresistible impulse or losing the
ability to judge outcome rationally
v. Rescuer – McCoy – Suzuki car and man injured flagging. “Danger invites rescue”
1. Rule – Rescuer foreseeable as a matter of law, still have to show harm to
rescuer was foreseeable
2. Elements
a. D was negligent to the person rescued and such negligence caused
the peril or appearance of peril to the person rescued
b. The peril or appearance of peril was imminent
c. A RPP would have concluded such peril or appearance of peril
existed
d. The rescuer acted with reasonable care in effectuating the rescue
3. Extent – If someone in weakened state due to 1st injury, they can collect from
resultant disease if 1st injury a “but for” cause
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4. Policy: Rescuers, in fairness, should be able to collect
vi. Note (Duty v. Proximate Cause) – Proximate cause usually used to bar liability for
unforeseeable harm, and duty to impose policy limits on liability for harm that is
foreseeable.
VI. INSTANCES OF LIMITED DUTY
A. Failure to Act
a. Rule – Generally, D is not liable for failing to act
i. Hegel – no liability for university to protect student from drugs
b. Two types of exceptions:
i. Special relationship with the person being harmed (Ayres – Boy caught in
escalator, injured, condition worsened in D’s delay)
1. Employee/employer
2. Innkeeper/guest
3. Common carriers (e.g., public utilities)
4. Legal custodians (including prisoners)
5. Parent/child, husband/wife
6. Business premises: must furnish warning and assistance to visitors
ii. Special relationship with the person doing the harm
B. Duty to Rescue
a. Rule – Generally, D has no duty to rescue
b. Exceptions (that create duty)
i. Protective/control relationships
1. Traditional relationships of protection
a. Employee/employer
b. Innkeeper/guest
c. Common carriers (e.g., public utilities)
d. Legal custodians (including prisoners)
e. Parent/child, husband/wife
2. Control relationships
a. Control relative – but where D is better positioned to control or change
situation (e.g., doctor)
b. D must have control over perpetrator OR special knowledge of
perpetrator
ii. D involved in injury
1. 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
iii. Assumption of duty
1. Rule – Once D begins to render assistance, D must proceed with reasonable
care
2. Key – If P relies on help to the detriment, a duty to rescue is created
3. Limitations – If reliance is economic, not physical, courts will not usually
find duty
C. Duty to warn – Tarasoff – Psychologist liable for not warning about patient
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a. Rule – Duty to exercise reasonable care to predict/protect foreseeable victims is imposed
when:
i. D determines (or reasonably should have determined under professional standards)
that a patient poses a serious danger of violence to others
D. Pure Economic Loss (Testbank – Ships crash on river, spill PCP, cause major damage)
a. Rule – Economic loss, absent physical injury to property, is unrecoverable
i. Two elements for purely economic recovery:
1. Proprietary interest AND
a. Physical damage must be to your property
2. Direct physical damage
a. A contractual relationship is NOT an injury to property
b. The harm must result from physical damage
ii. Policies
1. Line drawing – Arbitrary, but line has to be drawn somewhere
a. Dissent: Fairness – Utility of majority approach outweighed by
disutility of injured parties
2. Insurance – Premiums must be limited to foreseeable damages; injured
parties in better position to get insurance to prevent this type of harm
3. Incentives – If damage not foreseeable, ruling against them would not create
incentive for future
4. No social loss – Money for business will be spread around, so there is no
overall market effect
b. Privity of contract rule – If there is a direct K between D and P, P may recover for pure
economic damages. A third party usually cannot recover even based on privity of K with P.
If no K between 3rd party and P, even less likely to occur
E. Mental Disturbance and Resulting Injury (Daley v. LaCroix – Vehicle left highway, caused
physical and emotional damage, now liable if physical symptoms)
a. Oldest rule: Must have initial physical injury to recover
i. Parasitic damages rule
b. Impact rule: Includes instances without physical injury but at least an impact
c. Zone of danger
i. No impact necessary as long as within the zone of danger
1. You were at risk of physical harm
ii. Courts still generally require objective physical manifestation
d. Bystander situation: No physical injury/impact/no zone of danger
i. Still can recover if objective physical manifestation + one of the following
(depending on jurisdiction):
1. Thing test must have all three elements
a. Close relation to victim
i. Typically just family relationship, but some courts expand to
fiancé and close people
ii. Grandparents/cohabitation not allowed
b. Witness accident
c. Severe distress
2. Dillon test – Not an immutable test, just factors to consider, ultimate question
was foreseeability:
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a. Located near the scene
b. Shock resulted from a direct emotional impact upon plaintiff from
the sensory and contemporaneous observance of the accident
c. P and the victim were closely related
3. Pure foreseeability
e. Why would P prefer IIED rather than negligence?
i. More punitive damages for intentional tort
ii. However, more damages actually awarded through insurance for negligence
1. Insurance may not include intentional torts
f. Exceptions
i. Telegraph cases (mistaken death)
ii. Mishandling of corpses
iii. Mother v. Father – Mother is closer to infant (so direct) but father not (bystander)
VII. DUTIES OF OWNERS AND OCCUPIERS OF LAND
A. Origin – The privilege given to land and landowners within the feudalistic system. This could
account for many of the reasons why today’s society often has problems with these rules
B. Trespassers – Sheehan (RR trespasser – duty arose when discovered presence)
a. Rule – Generally, landowners owe no duty to trespasser to make land safe, to warn of
danger, or to protect trespasser
b. Exceptions
i. Reasonability – Landowners cannot willfully or wantonly hurt the trespasser in their
active operations; they are governed by doing what is reasonable
ii. Frequent trespassers – If the owner has reason to know that a limited portion of his
land is frequently used by trespassers, he must use reasonable care to make premises
safe or at least warn of known dangerous conditions (Foreseeability)
iii. Knowledge – Once owner has knowledge of a trespasser, the owner is under a duty to
exercise reasonable care for trespasser’s safety
1. This duty only arises at moment of discovery
iv. Tolerated intruders – D’s continued toleration of trespass amounts to an “easement”
for use of land, so P in essence becomes licensee
C. Licensees – Barmore – Officer from lodge visits, stabbed by man’s son
a. Definition – Has owner’s consent but does NOT there for owner’s benefit (no business
purpose)
i. E.g., social guest
b. Rule – No duty to inspect for unknown dangers; licensee takes premises as they find it
c. Exceptions
i. Hidden dangers – Must warn licensee of hidden dangers
ii. Reasonable care – Most jurisdictions still apply duty of reasonable car
iii. Licensee children – Higher duty to warn than an adult
1. Policy: Young children that cannot take precautions on their own may leave
you with the burden of taking precautions to remedy harm
D. Invitees
a. Definition – One who goes to the land in furtherance of the owner’s business
i. If customer, they do not have to buy anything to still be invitee
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b. Rule – Take reasonable care to make premises reasonably safe by:
i. Duty to inspect for hidden danger and remedy them
ii. Duty to warn of dangers
iii. Exercise control over third parties on premises
c. Persons who are invited as members of the public for purposes which the land is held open to
the public (e.g., customer/storeowner)
i. Do not actually have to patron the store to be an invitee—must enter the store with
the intent to do business either then or sometime in the future
E. Rejection or Merging of Categories – Rowland – Faucet breaks, cuts tendons
a. Rule – Ordinary principles of negligence and reasonable care should apply
b. Application – Weigh several factors, including closeness of connection between D’s conduct
and injury and insurance
c. Policy – Distinctions are archaic; also, foreseeability of harm to trespasser may be greater
than to a license
i. Dissent: Predictability of old distinctions have created reasonable and workable
approach
ii. Dissent: Unlimited liability – Now opened without categorizations
d. Some jurisdiction – Collapse licensee/invitee, keep trespasser
F. Attractive Nuisance
a. Definition – When landowner has on land a temptation that he ahs reason to believe would
lead children into danger, he must use ordinary care to protect them from harm
b. Britt
c. Restatement – (Majority) A landowner is subject to liability for physical harm to children
trespassing theron caused by an artificial condition upon the land if
i. (a) the place where the condition exists is one upon which the possessor knows or
has reason to know that children are likely to trespass, and
ii. (b) the condition is one of which the possessor knows or has reason to know and
which he realizes or should realize will involve an unreasonable risk of death or
serious bodily harm to such children, and
iii. (c) the children because of their youth do not discover the condition or realize the
risk involved in intermeddling with it or in coming within the area made dangerous
by it, and
iv. (d) the utility to the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children involved,
and
v. (e) the possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children.
G. Person outside established categories
a. No need for consent
i. Inspectors – May enter even though not invited, D’s work couldn’t be carried on w/o
them (licensee)
ii. Private person – If they enter land to protect themselves or rescue/aid another, they
are also privileged
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iii. Rescue personnel – Firemen, policemen, etc., may enter w/o permission; still
licensee
iv. Public servants – Depends on purpose for entering (invitee/licensee/reasonable care)
VIII. DAMAGES
A. General rule – P must have proof of damages for negligence claims
B. Types of Damages
a. Nominal Damages – Small sum. Why?
i. Vindicate rights
ii. Prevent prescriptive easement
iii. D carry at least part of cost in action
b. Compensatory Damages – Financial equivalent of loss/harm suffered by P
i. Purpose – Put P in condition they were in before torts
c. Punitive Damages – Above and beyond compensatory to punish + deter D from similar
behavior in future
i. Three guideposts in determining amount:
1. Degree of reprehensibility of D’s conduct
2. Disparity between compensatory and punitive award (10%)
3. Disparity between punitive damage and authorized civil penalties
C. Themes
a. P has one chance to recover damages
i. Calculate PV of damages for lump sum
b. Judicial control of amounts – Limited, although new trial can be ordered if shocks courts
i. Maximum recovery rule – If jury amount exceeds maximum amount they could
reasonably find, judge can reduce to maximum amount only (Anderson – Fire burned
girl)
c. Judgment satisfied
i. Action for contribution
ii. Action for indemnification
D. Personal Injury Compensatory Damages: what P has suffered and will continue to suffer
a. Must have actual injury, unlike intentional torts, no nominal damages
b. General Elements
i. Direct loos of bodily functions
ii. Out of pocket economic losses stemming from injury
iii. Pain and suffering
iv. Future damages
c. Cardinal elements of damages
E. Economic Losses (Specials) vs. Non-Economic Losses (Generals)
a. Economic
i. Medical expenses
1. Plaintiff can be compensated for reasonable medical expenses
2. Bills for hospitals, doctors, psychiatrists, medication, etc.
3. Future medical expenses (e.g., surgery p will need in future) must be proved
by expert testimony
ii. Lost wages
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1. If the plaintiff was employed at a fixed wage at the time of injury, the wages
lost during the time of injury are relatively easy to calculate
iii. Loss or impairment of future earning capacity
1. If the injury is one from which the plaintiff does not recover and re-enter the
workforce, the measure of damages will include loss of earning capacity
2. Expert testimony is needed to assist the jury in estimating what the plaintiff
would have earned during the plaintiff’s lifetime
3. “Sex, prior state of health, nature of daily employment and its perils, manner
of living, personal habits, and individual characteristics” will the life
expectancy figure provided by a mortality table
4. Law does not require absolute certainty of data
iv. Damage calculation
1. Present value of all future lost income in one lump sum
2. Future inflation: most jurisdictions have recognized the need to adjust for
expected future inflation in some way
3. Federal income tax: plaintiff’s award for personal injuries is not subject to the
federal income tax
4. Interest: courts traditionally have not permitted the plaintiff to collect interest
on the award until judgment is entered or until a verdict is reached
b. Non-Economic
i. Physical pain and suffering, mental anguish
1. Since pain, suffering and mental anguish are not capable of being reduced to
any precise equivalent in money, there can be no fixed standard by which
damages for them can be measured
2. Best that can be done is to leave the question to the jury
3. Most common is the physical pain caused by the injury
4. Relationship issues are hard to quantify
ii. Loss of function or appearance
1. Plaintiffs have recovered for loss of sense of taste and smell, impotency, and
change of personality
iii. Emotional distress from legal malpractice
iv. Litigation-induced stress
1. Most courts have not recognized it as a separate component of damages
2. Interest runs from time of judgment
v. Loss of enjoyment of life
1. Most jurisdictions allow plaintiffs to recover for the loss of specific aspects of
their lives as part of the recovery for pain and suffering
2. Plaintiffs have been largely unsuccessful in persuading the courts to permit
expert testimony on the issue
3. Most courts have held that since damages for pain and suffering do not have a
precise market value, they need not be reduced to present value
vi. Per-diem argument
1. Divide life into a bunch of units
2. How much would you be willing to pay to not experience that pain for that
one minute, day, week? Multiply that by life expectancy
vii. Reduced life expectancy
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1. Traditionally, courts have denied any damages for the shortening of the
plaintiff’s life expectancy itself
F. Judicial Control
a. Remittitur - can accept reduced amount of damages or a new trial (possibly some cap)
i. Rather than taking lower amount, plaintiff can decide to go through new trial
ii. Risks liability ruling not being in their favor the next time
b. Additur - A trial court's order, issued usually with the defendant's consent, that increases the
jury's award of damages to avoid a new trial on grounds of inadequate damages.
i. Has been held to violate constitutional rights to jury trial in federal system
ii. Some states still allow
iii. Judges will often just grant a new trial
G. Collateral source rule – Even if insurance or other source pays costs, this not considered
a. Subrogation clause – insurance company can be entitled to some damages if plaintiff is
awarded
IX. DEFENSES TO CLAIMS OF NEGLIGENCE
A. Contributory Negligence – Butterfield – P riding fast on horse, didn’t see negligent obstruction, P’s
own negligence barred recovery
a. Rule – P’s negligence contributes proximately to his injuries; P is totally barred from
recovery
b. Limitations – NOT a defense to an intentional tort
c. Burden of proof – D has burden to prove P’s negligence
d. Exception: Last clear chance doctrine - If the defendant had the opportunity to avoid the
accident after the opportunity was no longer available to the plaintiff, the defendant is the one
who should bear the loss. (Davies – ass and wagon)
i. Helpless plaintiff (unconscious drunk; staked donkey)
1. Conscious defendant who negligently accounts for risk (e.g., engineer who
sees drunk but blows whistle rather than brakes)
a. All courts conclude that D had LCC and that contributorily negligent P
can still recover; classic LCC type of case. Must be proof that (1)
defendant discovered the situation; (2) defendant had time to take
action to avoid injuring plaintiff; and (3) defendant failed to exercise
due care to avert the accident
2. Inattentive defendant – simply the wrongdoer, similar to driver primping in
the mirror
a. Modern courts are split as to whether LCC should apply.
ii. Inattentive plaintiff (P reading book and wandering into street)
1. Conscious defendant (sees P but is negligent in being too slow to brake, e.g.,
because he thinks P will surely look up and see him)
a. Most courts agree that LCC principles apply in this situation
2. Inattentive defendant (driving primping and pedestrian reading)
a. LCC does not apply in this situation
iii. Process
1. Yes/no inquiry; if no, revert to rule that P is barred from recovery
2. Acts as defense for P to contributory negligence
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3. Even if P was contributorily negligent, burden to avoid under last clear chance
lies with D
e. Statutes – P’s conduct completely ignored (no-fault rules)
f. Some courts allow a “remote” standard: P’s negligence too remote or minute to bar recovery
g. Policies
i. Penal basis – P denied recovery for misconduct
ii. Clean hands – Court will not aid someone who contributed to own injury
iii. Care – Encourage optimal care by both parties; creates incentive
iv. Superseding – P’s negligence is intervening/superseding cause which could make
D’s negligence no longer proximate
h. Damage phase – Avoidable consequences deducted (ONLY in damage phase)
i. Amelioration (to help P so they will not be barred)
i. Burden of proof on D
ii. Leave question to jury – More likely to find against D
iii. Causation in fact – Recovery barred only if P’s actions substantial factor
iv. Proximate cause – Defense narrowed by limiting scope of proximate cause as
applied to risks P exposed to himself, not to specific harm involved
B. Comparative Negligence (Majority standard) – McIntyre – two drunk tractor drivers
a. Rule – Divide liability between P and D along their relative degree of fault
b. NOT defense for an intentional tort
c. Different methods
i. Pure – P can ALWAYS recover, but only in exact proportion to D’s negligence
ii. Modified rules:
1. Not greater than (50% or below)
a. A 50% fault can still recover
2. Not as great as (P must be 49% or less negligent)
a. A 50% fault will not recover
3. Slight/Gross: P’s negligence must be slight in comparison to D’s
a. P recovers a pseudo %
b. NO rule or definition on what “slight” means
c. Once P is over “slight” negligence, P CAN’T recover
d. Jury instruction – Some jurisdictions allow jury to know what will happen if 50% and P
cannot recover
e. Last clear chance – Jurisdictions are split as to whether it applies here or not
f. Multiple parties (2 approaches)
i. Compare P’s negligence to all Ds’ negligence
ii. Compare P’s negligence to each D
C. Assumption of the Risk
a. General rule – If P has voluntarily assumed risk, P is barred from recovery
b. Express assumption of risk – Seigneur – Man rips muscle at health club)
i. Explicitness – Did the risk that injured P fall within the unambiguous terms of the
agreement (agreement clear and unambiguous)
ii. Public policy – Did the contract itself violate public policy (therefore, not
enforceable)
1. Gross/wanton negligence – Almost never can be waived
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2. Bargaining poser – If bargaining power very unequal with no real other
choices
3. Public interest – Does the transaction involve public interest?
a. General rule – Judged by totality of circumstances with backdrop of
societal expectations
b. Does it shock the conscious of the community?
c. Is the service essential?
d. Important to the economy?
4. Writing – This agreement does not need to be in writing
5. Policy
a. Balance freedom of contract vs. public interest
c. Implied assumption of risk
i. Comparison – Contributory negligence is carelessness, assumption of risk is
venturousness
ii. Rule – 2 requirements
1. Voluntary assumption of risk and
a. Exception – There was not a reasonable alternative, not voluntary
i. Rush – Trapdoor and privy
2. Knowledge of the risk (2 parts)
a. Knowledge of the particular risk
b. Appreciation of the magnitude of the risk
d. Primary implied v. secondary implied
i. Primary – typically occurs when plaintiff voluntarily enters into some relationship
with defendant knowing that there are certain inherent but commonly accepted risks
against which defendant will not protect him.
1. This is another way of stating that defendant owed no duty to plaintiff in the
first instance.
2. Can be dealt with in duty (“Does train co. owe duty?”)
ii. Secondary – Occurs when the plaintiff voluntarily encounters a risk that has already
been created by defendant’s negligence (OR voluntarily enters some relationship with
defendant knowing that there is a substantial risk that the defendant will act
negligently in the future). Secondary in that defendant’s negligence has already
worked out and assumption is second in chain.
1. Reasonable Assumption of the Risk (Plaintiff’s acceptance of the risk is
reasonable but still bars recovery); also called pure or strict A/R
a. Go into burning house to save child
b. Use cab that has brake problems, assume that risk
2. Unreasonable Assumption of the Risk (Plaintiff’s acceptance of the risk is
unreasonable and thus bars recovery), also called qualified A/R
a. Go into burning house to save hat
e. Merging categories – Trend that implied AR merged into comparative negligence;
Blackburn – AR abolished altogether b/c subsumed in negligence
i. Work that used to be done by AR can be done with either duty (Primary) or
comparative negligence (Secondary)
ii. Note: Some comparative negligence jurisdictions still use assumption of risk
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X. VICARIOUS LIABILITY
A. Respondeat Superior
a. Rule – If employee acting within scope of employment and commit a tort, employer is held
strictly liable – (Bussard – Woman get sick at work, gets in wreck on way home)
i. Company policies will not excuse company from liabilities
b. Exception – Coming-and-going rule: While commuting to job, employer-employee
relationship is suspended, and employer not liable
i. Aren’t you doing duty for employer when you are coming to work?
ii. But do we want to extend liability that far?
c. Scope of employment (Rest Agency §228 factors on “scope of employment”)
i. It is an act he is employed to perform;
ii. It occurs substantially within the authorized time and space limits of the job;
iii. The act is actuated, at least in some small part, by a desire to serve/benefit the master;
and
iv. If force is intentionally used by the servant, it is not unforeseeable
d. Frolic v. Detour – O’Shea – Man delivering Chiefs tickets to managers stops to get car
serviced
i. Frolic – Pursuit of the employee’s personal business as a substantial deviation from
or an abandonment of the employment
ii. Detour – Deviation that is sufficiently related to the employment to fall within its
scope
e. Notes
i. Does not exonerate the actual wrongdoer; the liability is imposed upon both
1. Remains liable to the plaintiff and will be required to indemnify the other to
the extent that he is able to do so,
ii. Acts necessary to the comfort, convenience, health, and welfare of the employee
while at work, though strictly personal and not acts of service, do not take the
employee outside the scope of employment (detour)
iii. Even if you are doing both personal and business, still liable
1. Unless work portion is very incidental
2. Must be very personal, exclusively personal for liability not to transfer
3. Courts likely to hold employer liable
4. “No nice inquiry will be made as to which business he was actually engaged
in at the time of injury, unless it clearly appears that neither directly nor
indirectly could he have been serving his employer”
5. Employer cannot insulate himself from liability by imposing safety rules or
by instructing his employees to proceed carefully-no matter how specific and
detailed his orders may be
iv. Courts don’t care how much the employer did or didn’t do
1. Not negligence claim against employer, but employee
2. Employer may have done everything they could have done to not be
negligent but still liable
v. Under certain circumstances, employer liable for willful and malicious torts
1. Liable for punitive damages only if
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a. The principal authorized or ratified the act,
b. Act was reckless
vi. May be within scope of employment even if it contravenes an express company
rule and confers no benefit to the employer
f. Action must be foreseeable in scope of employment
B. Independent Contractor – Murrel – Newspaper carrier and fight, sufficiently removed
a. Rule – If they acting as an independent contractor, the employer in NOT liable
i. Exception - Can have a non-delegable duty (chemical spill, something relating to
safety, can’t delegate your legal responsibility)
ii. Also, action may not be sufficiently removed
b. Rest of Agency – Factors for Distinguishing Employee from IC:
c. [1] the extent of control which the master is authorized to exercise over the details of the
work;
d. [2] whether the actor is engaged in a distinct occupation or business;
e. [3] whether the work is customarily performed under the employer’s supervision or by a
specialist without supervision;
f. [4] who supplies the tools and the place of work;
g. [5] the length of time for which a person is employed;
h. [6] whether the person is paid by time or by the job;
i. [7] whether the employer is in business or the task is part of the employer’s regular
business; and
j. [8] the parties own belief/contract as to the nature of the relationship
C. Process
a. Determine if there is negligence
b. Determine whether employee or IC
c. Determine scope of the employment
D. Rationale/Reasons for vicarious liability
a. The employer’s ability to control his employees and insist upon appropriate
precautions. Perhaps we think there is often something the company could have done which just can’t identify exactly what and company is in the best position to figure out
what the appropriate precaution would be
b. The belief that an enterprise should pay for the risks created by carrying on the business
c. The metaphysical identification of employer and employee as a single person
d. The fact that the employer has deep pockets and can compensate the injured victim
e. The belief that the employer will be the best loss spreader. The cost of insurance to an
employer can be reflected in the price of the product or service
XI.
STRICT LIABILITY
A. Animals
a. Trespassing animals (4 different rules)
i. Fencing out – P landowner has SL action against owner of trespassing animals
ONLY if P has constructed a fence to keep animals out. Rule – look at P’s actions
ii. Fencing in – P landowner has a SL action against owner of trespassing animal ONLY
if animal’s owner has failed to construct a fence to keep animals it. Rule – look at
D’s actions
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iii. Common law – Strict liability for animals—regardless of fence
iv. Negligence rule – Liability ONLY if the owner of the animal was negligent
1. E.g., did not put up fence, did not feed cow so it escaped
v. Exceptions
1. Animal has to be kind that is likely to roam and do damage (not dogs/cats)
2. Highway – If P’s animal escapes from highway where it can lawfully be, P
only liable for adjacent landowner, not 2nd adjacent owner
b. Wild animals
i. General rule – (Unowned) – Liability not imposed unless landowner tried to
domesticate or control animal
ii. General rule (Owned) – Owner of animal always SL if animal injures anyone
c. Domesticated animals
i. General rule – Owner of the animal is not negligent UNLESS they know or have
reason to know that the animal has dangerous tendencies abnormal to the class
1. E.g.,
ii. Exception – Harm must be related to violent tendency of animal (e.g., dog has
muzzle, but knocks you over instead of biting; not liable)
d. Note – Both the owner and controller of the animal can be held liable
B. Abnormally dangerous activities
a. Background case – Rylands v. Fletcher – mining and reservoir
i. Blackburn – If D brings something onto land that is dangerous and likely to cause
damage if it escapes, D will be held strictly
ii. Cairns – Distinguish between natural and non-natural use of the land
1. SL for non-natural use (meaning reasonable to circumstances and situation—
look at object in relation to surroundings
iii. Modern American law – Focuses mostly on whether activities are abnormally
dangerous
iv. Policy – SL was rejected more in frontier society because the policy of encouraging
use and expansion of land was so highly encouraged; however, today society is very
complex with more interactions and dangers
v. Incentives the ruling creates for owners of dangerous activities:
1. Avoid unnatural risks
2. Weight B<PL and see if it is worth it
3. Provide adequate insurance to prevent costs
b. Factors in considering abnormally dangerous activity
i. (a) High degree of risk of harm to the person, land or chattels of others;
ii. (b) Likelihood that the harm that results from it will be great;
iii. (c) Inability to eliminate the risk by the exercise of reasonable care;
iv. (d) Activity is not a matter of common usage;
1. E.g., driving is dangerous, but common
v. (e) Inappropriateness of the activity to the place where it is carried on; and
vi. (f) Value to the community is outweighed by its dangerous attributes.
c. Balancing approach – Not all factors necessary for SL
d. Posner’s approach – American Cyanamid – Chemical spill, switching line liable
Rest question 3 – Can risk be eliminated with due care?
i. If NO – Then SL almost certain, but still weigh other factors
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ii. If YES – Move on and consider other factors in a negligence standard (still may be
SL, but unlikely)
1. Do B<PL analysis with the rest (is it still worth it to me?)
iii. Outcome – Makes SL harder to get, which is good b/c people shouldn’t be punished
for important societal services
iv. Distributive v. Allocative – SL is meant for allocation of risks, not distributing costs
to person with deepest pockets
v. Problems – Heavy focus on ex post analysis and not necessarily on similar types of
accidents
e. Exception – As industry get better at taking care of operations, less liability imposed
C. Limitations on strict liability
a. Court – Judge decides whether SL applies, not jury
b. Appropriate harm – For SL to be appropriate, harm must result from that which makes the
activity abnormally dangerous – Foster – Mink mother eats kittens b/c nearby blasting
c. Acts of God – Not SL – Golden – Hurricane, overflowing, no reason to anticipate
d. Assumption of the risk
e. 3rd parties – Acts of 3rd parties over whom D has no control cannot give rise to liability even
where D’s activity is subject to SL
f. Statutes – Can preclude liability for SL, but negligence standard still applies
g. Proximate cause – Often in SL cases there are problems for P in establishing PC
D. SL v. Negligence
a. Incentives – The same—to take cost-justified, reasonable, optimal precautions
i. Build fence to prevent 80% of loss from cows getting out, either way
b. Residual costs – Costs that cannot be eliminated through
i. 20% left over after fence is reasonably built
c. Care levels v. activity levels – If activity has more residual accident costs, then the activity
level must be considered by actor and it is a question of SL; still, both make you think about
care levels to the same degree
d. Best position – SL actors in best position to make trade-offs and know what costs/benefits
are
e. Costs of SL – SL might decrease some costs by incentivizing settlements, but DOES
increase the number of suits, so overall cost is still higher
f. Rule and contextual evidence – In negligence cases, evidence not heard about the activity
itself, but rather if actor was negligent in carrying out the activity.
g. Court standard – Court does not want SL activities to seem “wrong,” so they are just SL
and not negligent
h. Both claims – An actor may be both SL and negligent—COA could be brought for both
E. Ex ante v. Ex post
a. Ex ante – Views that everyone agrees on based on rational choice; rules we would establish
before we knew who the winners and losers were
b. Consequentialist – Look to make result based on based on consequences
c. Minimizing sum of accident costs – (ex ante) – Actors will want least cost for higher
benefit, so implies 3 functions for legal system:
i. Optimal precautions (cost of precautions) – (B<PL)
ii. Optimal insurance (administrative costs) – Full coverage of residual, reasonable risk
that arises when optimal precautions are taken
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iii. Funding of both above (cost of having people bear risk) – Redistributed in places
where wealth is unevenly distributed—but not to point of hampering incentives
d. Purposes of tort
i. Deterrence
ii. Compensation
iii. Civil recourse
1. “Day in court” – opportunity to be heard
F. Policy outcomes of SL
a. Threat of liability will encourage actors to forego risky activities entirely or better ways of
achieving the same result
b. Reduce costs of accidents by taking extra precautions
c. Best cost spreaders
d. Reflects true cost of activity (internalizing costs)
G. Strict Products Liability
a. Privity of Contract
i. Rule – P cannot recover unless they are in privity of contract
b. Generally – Manufacturer is strictly liable in tort if they place an item on the market,
knowing that it will be used w/o inspections for defects, and that item proves to have a defect
that causes injury to a human (Greenman – Lathe)
i. SL – look at the product; Negligence – look at the person
c. Elements
i. Injury occurred
ii. Item must be used for its intended purpose for which it was created/sold
iii. Must be a defect in the design or manufacturing, AND
iv. Must be something that P was unaware of
d. Rest § 402(a)
i. 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 caused to
the ultimate user or consumer of the product IF:
1. Seller is engaged in business of selling such a product, AND
2. It reaches consumer w/o substantial change
ii. Liability still applies even if
1. Seller exercised all possible care in preparation and sales of product, AND
2. User/buyer hasn’t bought from/entered into K relationship with the seller
e. Rest 3d
i. Manufacturing – The only true “srict” PL claim b/c it is the only one where
manufacturer is liable w/o any proof of fault
1. Affects just one or a couple of the products
2. Measured at time product left facility
3. P does NOT have to prove how defect occurred
ii. Design – More similar to negligence standard
1. Could product’s foreseeable risk of harm be eliminated or avoided by
alternative design?
2. Consumer Expectations Test – Dangerous beyond extent contemplated by
reasonable consumer
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3. Risk/Utility calculation – is there a fair balance between risk and effect on
product’s utility?
iii. Warning – even more like negligence
1. Majority: Must have reason to know that warning is insufficient for them to
be SL
2. Minority: Must prove negligence
3. Still presumption party will read warning—even if not printed on product
f. Policy for strict products liability
i. Proof – Consumer finds it too difficult to prove negligence against manufacturer
ii. Incentive – SL provides an effective and necessary incentive to manufacturers to
make their products as safe as possible
iii. Reputation – Reputable manufacturers stand behind products, therefore all should be
responsible
iv. Cost Spreader – Manufacturer is in a better position to protect against the harm and
pass loss onto general public
v. Distribution – SL can already be accomplished through series of actions distributions
chain. Allowing consumer to sue manufacturer directly is a cost effective, time
saving, and resourceful short-cut
vi. Retailers – They are only conduits and should not be liable for manufacturer’s
mistake
vii. Least Cost Accident Avoider – Costs of accidents should be placed on the party best
able to prevent accident. When those means are less expensive than the cost of
accidents, the manufacturer will pursue more careful means
viii. Assessing Risks
1. Comparative negligence defense
a. Rule – Most jurisdictions have extended comparative negligence
principles to SPL
b. Effect – AR defense subsumed in comparative fault – P can recover
under simple negligence because AR would completely bar SPL action
2. Foreseeability
a. Rule – Looking for unforeseeable misuse – cuts off liability
XII. POLICY
A.
B.
C.
D.
Considering age in intentional torts
Considering mental status of insane and adults
Rules v. standards
Bright-line rules
a. Pros
i. Predictable
ii. Efficient, judicial economy
iii. Notice
b. Cons
i. Inflexible
ii. Does not work under all circumstances
iii. May produce unjust results
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E. Standards
a. Positives
i. Takes account of extenuating circumstances
ii. Common sense principles applied to each case
iii. 12 people provide better RPP than judge
iv. Allowsfor geographic differences and custom
b. Negatives
i. Unpredictable
ii. Inefficient
iii. No notice
F. Custom – a good measure of RPP?
G. Tort reform – too much?
a. Limit recovery
b. What to hold people accountable for
c. Award punitive damages to worthy causes, NOT victim
d. No-fault liability – make a pool which all liability damages taken from
H. Shift from contributory negligence to comparative negligence
I. SL v. negligence
J. Major purposes of tort law
a. Compensate injured
i. Better for innocent not to pay for others’ actions
ii. Torts expands to meet justice’s needs
b. Encourage productive behavior as long as in ordinary care
i. E.g., intent and insane – not to punish insane
ii. Duty to warn > doctor-patient privilege
c. Deter careless behavior
i. Trespass – seldom used, deterrence is enough
ii. Torts impose on everyone obligation to conform to the objectively reasonable
standard
d. Peaceful resolution so law not taken into own hands
i. Essence of battery is personal dignity, live in crowded world
ii. Life outweighs property
iii. Public welfare > private rights
e. Vindicate individual rights of redress
K. Other way of saying same thing
a. Purposes of tort
i. Deterrence
ii. Compensation
iii. Civil recourse
1. “Day in court” – opportunity to be heard
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