Torts: Fennell and Miles, Fall-Winter 08-09
TORTS: The Adventure Begins
General
First, ID issue. THEN
1. Will A prevail against B?
i. How is A injured? What is the invasion of the legally protected interest?
Intent?
ii. Review your checklist (claims/defenses)
2. Deploy the doctrine
i. Get the elements of the claim or defense right
ii. “statute was designed to protect the P against the type of injury
suffered…”
iii. Bridge to 3.
3. Apply facts
4. Balance the counterarguments, argue policy
- Keep in mind that information will not always be provided  address what facts
would be necessary to make conclusions
- Stipulate what the defendant should have done differently
Coase Theorem: if two parties have an understanding, regardless of the rule, the resources will
be reallocated. Negotiations will occur to allow people to gain the legal right to do something,
assuming there are no transaction costs which would prevent negotiations from occurring.
- See example of tradable emissions limits.
Contracting in Torts: how can you contract out of negligence? Would the two parties have had
a meeting of minds? If so, what would have been decided?
INTENTIONAL TORTS:
1) Prima Facie case – Plaintiff must first assume burden, followed by Defendant.
a. Plaintiff’s burden of establishing:
i. Act – what factually happened?
ii. Intent – not necessarily to do harm; can be done in good faith.
iii. Causation – To tie together how act resulted in harm.
iv. Injury – depends on tort (ie, assault = imminent apprehension of harmful
contact, trespass = boundary crossing, trespass to chattel = harm to that chattel,
conversion = exercise of dominion and control)
b. Defendant’s burden:
i. Consent:
1. Consent based on plaintiff’s behavior (FACT):
Torts: Fennell and Miles, Fall-Winter 08-09
a. Actual Express Consent – When P communicates to the D a
willingness to submit to D’s conduct.
b. Apparent/ Implied Consent – Implied by P’s conduct.
i. O’Brien v. Cunard Steamship Co – Holding out arm in line for
vaccinations implies consent.
2. Consent Implied by Law – Allowed if action is necessary to save
plaintiff’s life or some other cardinal interest in person or property.
a. Plaintiff is unconscious or otherwise unable to consider the
matter; OR
b. An immediate decision is necessary; OR
c. There is no reason to believe that the plaintiff would withhold
consent if able to do so; OR
d. AND
e. A reasonable person in the plaintiff’s position would consent.
3. WHEN NOT A DEFENSE:
a. Acts in excess of consent given
i. Mohr v. Williams – Doctor operates on left ear instead
of right.
b. Fraud
i. Consent given ineffective if procured by fraud.
c. Incapacity – if P is minor, drunk, mentally incompetent.
d. Criminal Acts:
i. Majority View:
1. If criminal statute is designed to protect a
plaintiff’s well-being, then consent is not
effective.
2. Hudson v. Craft – Anti-boxing statute, plaintiff is
protected class of people  consent not
effective.
a. HOWEVER, minority rule holds that
consent would be effective
(Restatements).
ii. Self-defense/defense of others
1. NONDEADLY FORCE – conditions
a. D must reasonably believe that P was about to inflict imminent
contact.
i. Courvosier v. Raymond – Even though he shot someone
not a rioter, it was still reasonable to believe that officer
was going to assault P.
b. D must use only means that appeared reasonably necessary to
avoid or prevent threatened contact.
Torts: Fennell and Miles, Fall-Winter 08-09
i. D is liable for the any force used in EXCESS of what was
reasonably necessary.
1. P has right to self-defend against any excessive
force.
c. THIRD PARTIES:
i. If D unintentionally injures a third party while
reasonably attempting to defend himself, only liable if
he was negligent towards that third party.
d. RETREAT:
i. Generally no duty to retreat.
ii. UNLESS
iii. D recognizes that P is not intentionally creating the risk.
iv. If D recognizes that P has mistaken D’s identiy.
2. DEADLY FORCE:
a. D must reasonably believe that P was about to inflict imminent
DEATH OR SERIOUS BODILY HARM.
b. Duty to retreat?
i. Majority  no duty when threatened with deadly force.
ii. Minority  Duty to retreat except if in own home, or if
retreating would endanger third party.
3. Only use when plaintiff is the offender!
4. Still liable for negligence.
5. Force used must be proportional to the force being inflicted.
a. Don’t bring a gun to a knife-fight.
iii. Defense of Third Persons:
1. WHO – Anyone endangered, even if complete strange.
2. MISTAKE IN INTERVENING?
a. Third person was privileged to defend himself.
b. Amount of force was reasonable.
c. D’s intervention was NECESSARY.
iv. Defense of property
1. You are allowed to use as much force as you would if, in fact, you were
there.
a. INTRUSTION MUST NOT BE PRIVILEGED – no police officer.
b. D must reasonably believe force is necessary.
c. D must demand, prior to use of force, that P desist.
2. Mechanical devise?
a. ELEMENTS:
i. ONLY IF reasonable and necessary or customary.
ii. Adequate warning is necessary.
Torts: Fennell and Miles, Fall-Winter 08-09
1. Bird v. Holbrook – “he who sets spring guns,
without giving notice, is guilty of an inhuman
act.”
b. If deadly  Only allowed if such act would have been allowed
by you if you were there.
v. Recapture of chattels
1. ELEMENTS:
a. D must have immediate right to possession.
b. D must demand return of the chattel and have demand be
ignored.
c. P must have:
i. Forcibly or fraudulently taken the chattel.
1. Kirby v. Foster – D’s case fails because he
handed over the money willingly.
ii. Have no claim of right to it.
1. Kirby – P had sincere belief in right to money, so
D fails.
d. Fresh pursuit:
i. D must be reasonably diligent in discovering loss.
ii. Following discovery, D must have been reasonably
diligent in effort to retake chattel.
vi. Necessity
1. Public :
a. Completely privileged to enter land or interfere with chattels if
reasonably appears necessary to avert public disaster.
b. NOT LIABLE FOR ANY DAMAGE.
c. Can use force if property owner resists.
2. Private:
a. Privileged to enter land or interefere with chattels if entry is or
reasonably appears to be :
i. necessary to protect
1. Often there must not be reasonable
alternative courses of action.
ii. ANY PERSON from DEATH OR BODILY HARM;
iii. or to PROTECT CHATTLES OR LAND from DESTRUCTION.
1. Reasonable means that harm that is intended to
prevent should not be less than harm being
done by intrusion.
b. Supercedes owner’s privilege to exclude trespassers.
i. Ploof v. Putnam – force used to expel trespasser is
wrongful on part of landowner, and thus liable to
entrant for harm in denying or impeding entry.
Torts: Fennell and Miles, Fall-Winter 08-09
c. Entrant is liable for any damage that occurs as a result of their
entry
i. Vincent v. Lake Erie Transportation Co.  Boat moors to
dock, storm waves knock the boat into the dock,
damaging it.
d. WHY NECESSARY?
i. Defense against REAL PROPERTY violations, where
damage done is not necessary for cause of action.
ii. Coase Theorum  NO TIME TO BARGAIN!
vii. [Insanity] – NOT usually a valid defense.
1. McGuire v. Almy – Found that insanity did nothing to alter defendant’s
intent to strike.
a. POLICY –Liability makes more watchful those in charge of
defendants.
i. Wealthy insane should bear the burden for those
harmed.
2. Can undermine an argument of intent.
SPECIFIC INTENTIONAL TORTS:
1) BATTERY:
a. PRIMA FACIE CASE:
i. Act by Defendant
1. Not unconscious.
2. Nor reflex actions.
ii. Intent
1. EITHER
2. Desire to do the offensive touching (Vosburg v. Putney – he wanted to
make contact with his foot).
3. Or believed offensive result was substantially certain from his act
(Garratt – where the kid pulled the seat out from grandma).
iii. Harmful or Offensive Touching
1. If it injuries, disfigures, impairs or causes pain to party.
2. “offensive” if it would offend a reasonable person’s sense of personal
dignity.
iv. Causation
1. Offensive touching must be caused by D’s act or some force that act
sets in motion.
a. Satisfied if D’s conduct “directly or indirectly” results in the
injury.
2) TRESPASS TO LAND
a. ACT – volitional movement by D causing intrusion on another’s land.
b. INTENT – Intent to do act that results in intrusion.
Torts: Fennell and Miles, Fall-Winter 08-09
i. Does not matter if he thinks he’s the owner.
1. Dougherty v. Stepp – D thought he owned land he entered; found liable.
ii. Only intent to complete physical act, not the intent to cause injury.
1. Cleveland Park Club v. Perry – boy puts ball in a suction thing in pool; it
damages the filtration system.
c. RESULTS – intrusion upon person’s lands.
d. INTANGIBLE TRESPASS  Only liable if P able to prove physical damage to property
caused by INTENTIONAL intangible transmission.
3) TRESPASS TO CHATTELS:
a. ACT – Dispossession of or damage to chattels of another.
i. D must be deprived of use of chattel for a significant amount of time.
1. Intel Corporation v. Hamidi – Sending mass e-mail through system did
not impair its functioning enough for lawful users to be deprived of use.
ii. OR
iii. Chattel must be damaged.
1. Intel Corporation v. Hamidi – trespass of computer system did not
impair functioning of that system = no liability.
b. INTENT – Intended to deal with chattel as he did.
4) CONVERSION:
a. ACT:
i. D asserts control over chattel or land as if he were the owner.
1. Poggi v. Scott – D sells P’s wine kegs, even though in D’s possession;
liable for “exercising an unjustifiable and unwarranted dominion and
control over property.”
ii. Results in Loss
b. INTENT:
i. Dealing with the goods in the role of an owner.
c. RESULT:
i. Serious dispossession:
1. Destruction.
2. Sale of chattels.
3. Refusing to surrender on demand.
d. NATURE OF GOODS:
i. Plaintiff must have possession or is entitled to immediate possession.
1. Moore v. Regents of the University of California – Man’s removed spleen
is used to develop serum; no right of possession  no reasonable
expectation to get spleen back.
5) ASSAULT:
a. ACT:
i. Volitional act by D to create immediate apprehension of imminent harm in the
P.
ii. NOT WORDS.
Torts: Fennell and Miles, Fall-Winter 08-09
1. Tuberville v. Savage—“if it were not assize-time, I would not take such
language from you”)
b. INTENT:
i. To inflict harmful or offensive touching.
ii. To put plaintiff in apprehension of harmful or offensive touching.
1. I de S. and Wife v. W. de S.  Banging hatchet against door, then strikes
out at her, but DOES NOT TOUCH HER.
2. Tuberville v. Savage – Man states specifically that he would NOT HURT
plaintiff, despite putting hand on sword  NO INTENTION TO MAKE
CONTACT OF ANY KIND.
6) MISREPRESENTATION:
a. FRAUD:
i. PRIMA FACIE CASE:
1. Misrepresentation by defendant.
a. AFFIRMATIVE REPRESENTATION:
i. Any representation that would have influenced a
reasonable person in the plaintiff’s position in this type
of business.
1. Pasley v. Freeman  Telling P that third-party
had good credit, when he didn’t is actionable
when that results in an injury.
2. EXCEPTION  Puffing up! When party tries to
“talk up” their business, no reasonable man
should take them at their word (especially if
ability to examine information)
a. Vulcan Metals Co. v. Simmons
Manufacturing Co.  Puffing up not
viewed as actionable fraud.
ii. Representation may be oral, written or by act of
conduct (turning back mileage on car you are selling)
b. FRAUDULENT CONCEALMENT:
i. Acceptable except where:
1. Bill of sale or transaction is marked “as is”
2. Plaintiff is charged with some knowledge or
notice of the facts concealed.
3. Swinton v. Whitinsville Savings Bank 
Termites! No liability for failure to disclose this,
but there might have been if they covered up
the termite markings!
c. FAILURE TO DISCLOSE:
i. GENERAL RULE  Defendant not under any duty to
disclose facts.
Torts: Fennell and Miles, Fall-Winter 08-09
1. Swinton v. Whittinsville Savings Bank  Not
required to disclose the fact that there were
termites in the house (plaintiff’s right and
failure to inspection?)
2. EXCEPTIONS:
a. Fiduciary Relationship  if P and D in
special fiduciary relationship with eachtoher
b. Half-Truth  If D makes a half-truth.
c. New Info  D must disclose when he
has made a statement he believed was
true, but then learns it’s fault.
2. Scienter
a. Defendant must KNOW OF THE FALSITY OF HIS INFORMATION!
3. Intent to induce plaintiff’s reliance.
a. D must intend to induce the plaintiff’s reliance.
4. Causation – actual reliance
a. It must be shown that the misrpresenation played a
SUBSTANTIAL PART in inducing the plaintiff to act as he did
(ACTUAL RELIANCE).
i. Laidlaw v. Organ  Did misrepresentation IMPOSE ON
THE SELLER? IF so, actionable, even though no duty to
disclose!
b. PROXIMATE CAUSATION! Harm cannot be too far removed!
i. Laborer’s Local 17 Health and Benefit Fund v. Phillip
Morris Injury was direct as to smokers, but not to
health care fund, and injuries to health insurance fund
are too indirect in that it was contingent on harm to
third parties.
5. Justifiable reliance
a. Plaintiff’s reliance must be reasonably foreseeable to the
defendant.
i. Edgington v. Fitzmaurice  A reasonable donor would
rely on representations by D as to where the money
would be going, and that should have been reasonably
foreseeable to anyone.
b. Type of representation?
i. Representations of Fact
1. Unconditional reliance on material
misrepresentations of fact are ALWAYS
JUSTIFIED .
Torts: Fennell and Miles, Fall-Winter 08-09
a. Edgington v. Fitzmaurice 
Representations of defendant’s state of
mind and intentions are
representations of fact.
b. EXCEPTION  Where facts are
OBVIOUSLY FALSE.
i. Puffing!
2. No duty to investigate!
ii. Representations of Opinion
1. Not justified in relying on misrepresentations of
opinion, value or quality UNLESS:
a. D has superior knowledge not available
to plaintiff
i. Puff versus misrepresentation?
b. D owes fiduciary duty to P.
c. D and P are affiliated or specially
related.
d. D offers P advice on some transaction P
wants to take with a third party.
6. Damages
a. Proof of ECONOMIC DAMAGES MUST BE SHOWN!
b. NEGLIGENT MISREPRESENTATION
i. Only exists where there is privity of contract or such a relationship that is
essentially as if there were privity of contract (Ultramares v. Touche).
ii. Cause of action limited to “members of a limited group of persons for whose
benefit and guifance the information is supplied, provided that there is reliance
on that information in that transaction or in a substantially similar transaction.”
(Restatement (Second) of Torts)
iii. PRIMA FACIE CASE:
1. Misrepresentation by defendant
a. Must be in a business setting, and negligence by one in the
business of supplying information for the guidance of others in
a business transaction.
2. Negligence toward particular group.
a. DEFENDANT MUST HAVE COMNTEMPLATED THE RELIANCE OF
A PARTICULAR PARTY:
i. Either privity of contract between defendant and
plaintiff.
ii. Relationship approaching privity (where you are
weighing beans on the same dock as the party buying
the beans  Glanzer v. SHepard).
Torts: Fennell and Miles, Fall-Winter 08-09
3.
4.
5.
6.
iii. If they knew that their client would pass information
onto a SPECIFIC individual or group  Ultramares –
Where they did not know who was going to get the
information.
Cause in fact – actual reliance
Justifiable reliance
Proximate Cause
Damages
NEGLIGENCE:
1) WHAT PLAINTIFF MUST SHOW:
a. Duty – legally recognized relationship between the parties.
b. Standard of Care – required level of expected conduct.
c. Breach of duty – failure to meet standard of care.
d. Cause-in-Fact – D’s breach of duty must have but-for caused plaintiff’s injury.
e. Proximate Cause – No policy reasons to relieve D from liability.
f. Damages – P suffered cognizable injury.
2) The Reasonable Person:
a. Each person owes a duty to behave as a reasonable person would do under the same or
similar circumstances.
i. Brown v. Kendall (1850)  Guy walking backwards while hitting dogs with stick.
b. Does not depend on what defendant actually, believed but how a “reasonable person
of ordinary prudence would have acted.” (quote from case below)
i. Vaughn v. Menlove  Liable despite his claims that he was too stupid to know
that building a haystack in such a way would result in inferno.
ii. Lyons v. Midnight Sun  Emergency. Judged as an ordinary person would act
under circumstances, so that means that if there is an emergency situation, how
would a reasonable man deal with said situation?
c. Extraordinary circumstances: Reasonable person need not consider extraordinary
circumstances in planning his conduct (Blythe v. Birmingham Water Works – freezing
pipes)
d. Urgent circumstances: When a person voluntarily exposes himself to a serious injury
when saving a life, unless the act is reckless it is not considered negligent (Eckert v. LIRR
– deceased rescued a child)
e. Common carrier – owes highest duty of care to passengers (hotels, trains)
i. Andrews v. United Airlines  If hazard, arline must do all that technology
permits and prudence dictates to eliminate it.
f. To whom does the standard apply:
i. Children :
Torts: Fennell and Miles, Fall-Winter 08-09
1.
Held to the standard of a reasonable child of that actually age,
intelligence, and experience.
a. Roberts v. Ring – Child of seven runs out into road and is hit by
car  Not liable for contributory negligence.
b. Liable if the child caused injury to another  cannot take
advantage of age as defense.
2. EXCEPTION – No special allowance is made when child is performing
dangerous activity normally undertaken only by adults  treated up to
standards of adults.
a. Daniels v. Evans – “Minor operating a motor vehicle, whether
automobile or motorcycle, must be judged by same standard as
adult.”
i. Policy consideration  B/c dangerous, want to hold
everyone doing such action to the same standard.
ii. Adults with Mental Issues:
1. Judged by reasonable person standard with no allowance for such
deficiency.  TREATED AS A PHYSICAL CAUSE (heart attack, seizure,
stroke).
a. Breunig v. American Family Insurance  Woman crashed car
while under a delusion she was following a light from God.
Since recurring, she should have known of her condition and
acted appropriately  therefore, held to reasonable person
standard in operating vehicle.
iii. Adults With Physical Disabilities:
1. Held to the standard of a reasonable person with their disability.
a. Fletcher v. City of Aberdeen  Blind plaintiff held to the
standard of a likewise blind person; city must provide
protection for people of that class of reasonable blind person.
2. Intoxication
a. Robinson v. Pioche – “A drunken man is as much entitled to a
safe street, as a sober one, and much more in need of it.” 
Him being drunk does not negate city’s liability.
b. Restatement 283C  Intoxication disregarded by the law.
iv. Amateurs v. Professionals
1. Experienced means that “those possessing greater abilty than most are
expected to use it.”  Standard of reasonable person with their
experience level.
3) PROVING NEGLIGENCE:
a. Is conduct unreasonable?
i. Blyth v. Birmingham Water Works – “Negligence is the omission to do
something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do, or doing something
Torts: Fennell and Miles, Fall-Winter 08-09
which a prudent and reasonable man would not do.” Exceptional
circumstances omitted.
ii. So how is this calculated?
Blythe
Eckert
Foreseeability – ordinary circumstances.
1) Value of thing being threatened
2)Probability of successful rescue
3)Circumstances defining reasonable care includes the
emergency
Osborne
Specific to what a reasonable person of such a type would do
in a like situation.
Hand formula
B < PL
iii. Balance of benefits and duties:
1. Cooley v. PublicService Co.  Two methods, one of which would put
people on street at risk versus phone-owners who would have less of a
dire risk  No liability! Risks v. utility!
iv. THE HAND FORMULA (as featured in United States v. Carroll Towing):
1. B (burden) < P (probability) X L (injury) = LIABLE
a. If burden taken upon by defendant is less than the probability of
the accident times the extent of the injury.
b. Probability is the CHANCE OF ACCIDENT W/O D TAKING CARE –
CHANCE OF ACCIDENT THAT WOULD HAVE HAPPENED
REGARDLESS.
2. Proving that D did not take the cost-justified precaution and was
therefore unreasonable!
v. Judge and Jury: Two Opposing Views On Where Standard Should be Set
1. Holmes – Baltimore and Ohio R.R. v. Goodman – Juries are bad, the
judge should set a clear standard of conduct; “fixed standard of
reasonableness.”
2. Cardozo – Pokora v. Wabash Ry. – Standards of prudent conduct should
be determined by the juries since they are taken over from the facts of
life.
b. Custom:
i. May be used as evidence of the standard of care exercised by the Defendants.
ii. P must show that custom is well established.
iii. COMPLIANCE WITH CUSTOM:
1. Can be used as evidence of non-negligence.
2. Titus v. Bradford  Where practice was a “regular part of business;”
Safe according to the “usages, habits and ordinary risks of business.”
3. Jury can find entire custom negligent, though, and impose liability!
iv. DEVIATION FROM CUSTOM:
Torts: Fennell and Miles, Fall-Winter 08-09
1. Failure to abide by customary safety standards can be evidence of
negligence (Mayhew v. Sullivan Mining Co.  plaintiff falls through hole
cut in his mining platform bc not notified that it was done.)
a. Even if an act is customary, if it is also far below average
ordinary care, then it is still negligence.
2. Trimarco v. Klein – Liability when landlord did not put in safety glass in
plaintiff’s shower door; evidence admissible because it “reflects the
judgment and experience and conduct of many.”
v. T.J. Hooper: Even though there’s no law that tug boats should have radio
receiving sets, that doesn’t mean they should wait to act  just because acting
a particular way is safe in law doesn’t mean it isn’t dangerous in fact.
vi. MEDICAL MALPRACTICE:
1. Physicians must meet at least the standard of care existing in the “same
or similar” communities.
2. ELEMENTS (according to Lama v. Borras):
a. 1 – basic norms and knowledge of medical care applicable in the
case at hand.
i. Kalsbeck v. Westview – “a doctor must use that degree
of skill and learning which is normally possessed and
used by doctors in good standing in a similar practice in
similar communities and under like circumstances.”
b. 2 – proof that medical personnel in question failed to follow
these norms in treatment.
c. 3 – causal relationship between act or omission by physician
and injury suffered.
3. Informed Consent: Doctor must disclose relevant information about
benefits and risks inherent in proposed treatment to the patient.
a. EXCEPTIONS:
b. Types of info:
i. Remote – What would not impinge a reasonable
person’s decision not to undergo treatment or not.
ii. Obvious – What a plaintiff can view from his own
standing naturally.
c. Emergency situations – no duty to disclose.
d. Therapeutic privilege – If doctor reasonably concludes that full
disclosure would be detrimental to the patient’s well-being.
i. Burden of proof on the doctor!
e. Inexperience – A doctor does not have to inform patient of his
own inexperience in performing a procedure.
4) VIOLATION OF STATUTES (THREE APPROACHES):
a. Negligence per se – If you violate the statute, then you are negligent!
i. Osborne v. McMasters  Statute is evidence of a legal duty; “imposes upon any
person a specific duty for the protection or benefit of others, if he neglects to
perform that duty he is liable to those for whose protection or benefit it was
imposed for any injuries of the character which the statute or ordinance was
designed to prevent.”
1. Plaintiff must be in a class statute meant to protect.
Torts: Fennell and Miles, Fall-Winter 08-09
a. Martin v. Herzog – Buggy w/o lights (against statute) hit and
driver killed. Lights statute meant to protect travelers on road.
2. Injury must be of a type statute meant to prevent.
a. Martin v. Herzog – Statute meant to prevent accidents.
b. Uhr V E. Greenbush – duty for school to examine for scoliosis
but not administer healthcare-- > statute does not create a
cause of action
3. The Violation of the Statute Must have CAUSAL RELATIONSHIP with
injury.
a. Martin v. Herzog – “to say that conduct is negligence is not to
say that it is always contributory negligence.”
b. Brown v. Shyne - Breach of statute may be evidence of
negligence ONLY WHEN there is a logical connection between
proven neglect of duty and the alleged negligence.
i. Failure to obtain license not connected with the injury
itself.
ii. Not lack of license that caused the injury, but
defendant’s lack of medical knowledge/prowess.
ii. Adherence to Statute not Evidence of Non-negligence generally (T.J. Hooper 
adherence to safety statutes did not bar liability).
iii. CAUSE OF ACTION (As per Uhr):
1. Whether P is one of the class for whose benefit statute was enacted.
2. Would recognition of private right of action promote legislative
purpose?
a. Basically; would this serve to eliminate the type of injury
intended by the statute?
3. Would creation of right be consistent with legislative scheme?
a. Uhr  Legislature intended to relieve schools of civil liability for
the failure to screen for scoliosis.
b. MINORITY VIEWS – VIOLATION OF STATUTE =
i. Evidence of Negligence  Presumption, room for excuse, if person attempts
reasonable care in trying to follow statute but fails, etc.
ii. Statute is irrelevant  No evidence towards anything!
5) Res Ipsa Loquitur (“The Thing Speaks for Itself”)
a. A type of circumstantial evidence that brings about either:
i. Permissive inference that a jury is entitled to make when considering evidence.
ii. Rebuttable presumption of negligence  D must then come forward with
evidence or else suffer judgment as a matter of law.
b. ELEMENTS (From Byrne v. Boadle  man walkint outside of D’s gets hit with a falling
barrel)
i. Acccident must be of a type that does not normally occur in the absence of
negligence.
Torts: Fennell and Miles, Fall-Winter 08-09
1. Colmenares Vivas v. Sun Alliance Insurance Co. – Usually escalator
handrails do not stop unless there is negligence.
ii. Injury must be caused by an agency or instrumentality within the exclusive
control of the defendant.
1. Colmenares Vivas v. Sun Alliance Insurance Co. – Ports authority
effectively had control because they were in charge of a public area
with nondelegable duty to maintain facilities in a safe condition.
a. COMPARE to Holzhauer v. Saks –Where escalot generally
stopped movement; emergency stop things at bottom and top
of it  No liability since others were given control over
functioning of escalator in this manner.
iii. Not caused by any voluntary actions or contributions on the part of plaintiff.
1. Colmenares Vivas v. Sun Alliance Insurance Co. – No evidence that they
contributed.
c. RESTATEMENT VIEW:
i. Not of a type that doesn’t occur w/o negligence.
ii. Other responsible causes, conduct of plaintiff and third person, sufficiently
eliminated by evidence.
iii. Negligence falls within defendant’s duty towards plaintiff.
DEFENSES TO NEGLIGENCE:
1) CONTRIBUTORY NEGLIGENCE:
a. At common law, complete bar for recovery.
b. Violation of duty of due care in reference to avoiding one’s own injury.
c. BURDEN OF PROOF ON DEFENDANT.
i. Gyerman  “burden of proving all aspects of the affirmative defense of CN
including causation, rests on the defendant, unless the elements of the defense
may be inferred from the plaintiff’s evidence.”
d. Restatement Definition:
i. “Conduct on the part of the plaintiff which falls below the standard of conduct
to which he should conform for his own protection, and which is a legally
contributing cause cooperating with the negligence of the defendant in bringing
about the plaintiff’s harm.”
1. Butterfield v. Forrester  D puts log in road, but P rides horse too fast,
as if he were reasonably riding he would have seen the log and been
able to stop in time.
2. Beems  P’s actions in going between cars are reasonable, so D’s
negligence is therefore the only one that matters.
e. ELEMENTS:
i. Plaintiff actions fall below standard of reasonable conduct.
ii. Legally contributing cause (along with D’s negligence)
Torts: Fennell and Miles, Fall-Winter 08-09
1. Gyerman v. United States Lanes  Though plaintiff failed to use
ordinary care, D must all show how negligence proximate cause of
injury.
2. RESTATEMENT:
a. Legally contributing cause if substantial factor in bringing about
harm and no rule restricting responsibility.
b. Same rules of causation as negligence.
3. Seat-Belt Cases
a. Plaintiff’s failure to take reasonable precautions to protect
himself IN THE EVENT of an accident should be distinguished
from CN.
i. Derheim v. N. Fiorito CO. – D. takes the plaintiff “as he
finds him.”  no contributory negligence seat belt
defense.
ii. B-b-b-b-but lowest cost avoider, wah!  suck it,
Friedman.
b. Same with helmets and motorcycles!
iii. Of Injury
f. Breach of Statutory Duty:
i. Contributory negligence per se  Same rules as negligence per se.
ii. Violation must be contributing cause of accident (driving w/o a license NOT a
cause).
g. Emergency Cases
i. If plaintiff confronted with emergency not of her own making, conduct
compared to what a reasonable person would do in such an emergency.
ii. So she might assume extraordinary risks or perform dangerous acts without
being held negligent (Eckert v. Long Island RR).
1. Raimondo v. Harding  “person faced with an emergency and who
acts, without opportunity for deliberation, to avoid an accident may not
be charged with CN if he acts as a reasonably prudent person would act
under the same emergency circumstances.”
h. Use of Property
i. Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul You can use your land so that
you don’t injure others, as the flax keeper was doing, and the railroad operator
used their property in a way that did injure their neighbor. The flax keeper was
using their own property in a way that did not counter maxim, so the view was
different.
i. EXCEPTION, Last Clear Chance Rule.
i. Plaintiff’s contributory negligence would not bar or reduce recovery if the
defendant, immediately prior to the accident, had the “last clear chance” to
avoid the accident but failed to do so.
ii. TWO CATEGORIES:
Torts: Fennell and Miles, Fall-Winter 08-09
1. Helpless peril cases
a. Where plaintiff has put himself in a situation where he is
powerless to extricate himself by exercise of reasonable care.
b. Only remaining opportunity to avert peril rests with D.
c. D LIABLE IF:
i. D had actual knowledge of P’s peril
ii. OR
iii. Should have had knowledge of P’s peril
iv. AND
v. Was negligent thereafter.
1. Fuller v. Illinois R.R.  Train hits man in cart…RR
liable b/c engineer “could have seen that he
was going to cross the track and could only with
difficulty extricate himself.”
a. Any reasonable person on train could
have seen the situation and should
have known of P’s peril!
2. Inattentive Peril Cases:
a. Plaintiff put himself in position of accident but could have
extricated herself by exercise of due care practically to the
point of the actual injury.
b. D LIABLE IF:
i. D had ACTUAL KNOWLEDGE of P’s presence in time to
have avoided accident.
j. IMPUTED CONTRIBUTORY NEGLIGENCE:
i. Generally not allowed.
1. Mills v. Armstrong  Passengers on ship are not barred from recovery
for the accident with another ship, where their navigator was negligent
and contributorily caused the crash.
2. Therefore, passengers not imputed contributory negligence of the
driver.
ii. Parent-Child
1. Accident to child not imputed to the negligent childcare on the part’s of
their parents! NOT YOURS!
iii. Only available in three circumstances:
1. Master-Servant
2. Joint Enterprises
3. Suit based on injury to third person.
2) Assumption of Risk:
a. NOT A DEFENSE FOR INTENTIONAL TORTS.
a. HOW IT WORKS:
Torts: Fennell and Miles, Fall-Winter 08-09
b.
c.
d.
e.
i. Primary: Was there a breach of a duty in the first place? Whether D was
negligent in the first place! (can be read into the Steeplechase case).
ii. Secondary: Affirmative defense – After a prima facie case made for the D’s
negligence, this effectively serves as a subset of contributory negligence. Did
plaintiff act unreasonably in taking on a risk?
ELEMENTS:
i. Plaintiff voluntarily
1. If by necessity, force or fraud  no AOR.
ii. Assumed
iii. The particular risk involved.
1. Not merely a danger generally, but that particular issue!
2. Murphy v. Steeplechase Amusement Co.  “accepts the dangers that
inhere in it so far as they are obvious and necessary.”
a. So the dangers must be open and obvious to the plaintiff!
b. D liable if dangers were hidden and P had no knowledge of the
particular risk!
c. Also, if so many injuries that the sport itself was dangerous and
must be changed!
SUBJECTIVE TEST  Not what a reasonable person would do, but what the plaintiff
actually did!
i. Lamson v. American Axe & Tool Co.  Plaintiff complains about negligent
hanging axes, yet persists to work under them = assumed risk. “P, on his own
evidence, appreciated the danger more than anyone else. He perfectly
understood what was likely to happen.”
LIMITATIONS:
i. Plaintiff must fully appreciate risk  If P through age or inexperience does not
comprehend the danger, then no AOR.
ii. Extraordinary Risks  One who participates in sporting events does not
impliedly assume the risk of an opponent’s flagrant violations of rules that result
in injury.
1. Nabozny v. Barnhill  Soccer goalie kicked in head.
AOR BY AGREEMENT:
i. ELEMENTS:
1. Provision must be part of the contract – prudent person would have
understanding of it.
a. NO FINE PRINT!
2. Enforceability might depend on:
a. If parties are on equal bargaining position, then exculpatory
provisions are usually upheld.
b. However, if one party set all the terms of the contract and the
other had no opportunity to negotiate (ADHESION CONTRACTS)
it may be held INVALID AS PER PUBLIC POLICY.
Torts: Fennell and Miles, Fall-Winter 08-09
i. CAN BE INVALIDATED IF…
ii. Concerns business of a type generally thought suitable
for public regulation.
iii. Party seeking exculpation is engaged in performing a
service of great importance to the public, which is often
a matter of public necessity.
iv. Party holds itself out as willing to perform this sercice
for any member of public who seeks it.
v. As a result of the essential nature of this undertaking,
party possesses a decicive advantage in bargaining
strength.
vi. In exercising as such, no provision for buyer to pay for
insurance.
vii. As a result, buyer is put under the control of the seller
and at the whim of seller’s potential negligence.
1. Dalury v. S-K-I Ltd.  Exculpatory agreement on
skiing ticket invalidated b/c of public policy
considerations.
COMPARATIVE NEGLIGENCE:
1) A FEW DIFFERENT TYPES:
a. Pure Form:
i. Based on pure proportionality.
ii. If Plaintiff is 90% negligent, can still recover 10% of damages.
iii. Established in California through Li. V. Yellow Cab
b. Modified/Impure:
i. Plaintiff is not barred from recovering as long as their negligence has not
reached a particular threshold.
1. If above, then they are barred, and if below they are given that
proportion of damages.
ii. Threshold is usually 50%.
1. “P recovers if fault is not greater than D.” – if 50-50, then P recovers.
2. “P recovers if fault is less than D’s.” – if 50-50, P barred from recovery.
2) HOW DOES IT EFFECT EXISTING STANDARDS?
a. How to apply standards?
i. Give plaintiff’s benefit of the doubt in CN system.
1. Less so here!
ii. When there is heightened blameworthiness on the part of the D, then they
might incorporate a contributory negligence system within the CPN regime.
b. Last Clear Chance:
i. Ditched entirely. We already have the tools to apportion fault, which this might
be included in!
Torts: Fennell and Miles, Fall-Winter 08-09
c. AOR!
i. Primary v. Secondary
ii. Primary AOR – Goes back to prima facie case about whether a duty was ever
breached!
1. Goes to the intial question of whether D was negligent in the first place.
2. Was there a duty that was breached?
3. Plaintiff participating in risk!
iii. Secondary AOR – Subset of CN and thus a subset of CPN!
1. If D breached duty?
2. Plaintiff could obviously tell that something was bad!
a. P was acting unreasonably following D’s breach!
d. Seat belts:
i. Mostly, evidence is inadmissible on the issue of comparative negligence.
e. Strict Liability:
i. Idea of degree of fault with plaintiff to that of the defendant.
ii. Strict liability operates independent of fault.
iii. We will not try to deviate from standard of care and will instead compare the
causal contributive causes for the injury.
MULTIPLE DEFENDANTS: JOINT, SEVERAL AND VICARIOUS LIABILITY:
1) JOINT AND SEVERAL LIABILITY
a. Joint tortfeasors are two or more individuals who:
i. Act in concert to commit a tort.
ii. Act independently but cause a single indivisible tortious injury.
b. Each individual is fully liable to the plaintiff for the entire damage award.
c. Tortfeasor also responsible for ability to pay for other tortfeasors.
i. So if one tortfeasor has deep pockets, he might have to pay for insolvent
tortfeasors.
d. BEFORE COMPARATIVE NEGLIGENCE:
i. Joint-and-several liability (you can recover total amount from any of the Ds, but
you can only sue once) with no right to contribution. P sues D1.
1. D1 is liable for the WHOLE AMOUNT OF RECOVERY.
2. D2 gets off scott free (D1 can move for indemnity, but will not succeed
since he is far less substantial as cause of harm). NO CONTRIBUTION.
a. Union Stock Yards v. Chicago, Burlington & Quincy RR  D2
cannot get indemnity or contribution when both are equally at
fault.
3. BUT, INDEMNITY:
a. Prevents unjust enrichment of primary tortfeasor in escaping
liability!
b. If P sues D2 (who is less responsible for injury than D1), D2 is
liable for the whole amount, but he can claim indemnity against
Torts: Fennell and Miles, Fall-Winter 08-09
D1 as the principle wrongdoer to recover the entire amount
from D1.
ii. STATUTORY REFORMS FOLLOW! One of the major changes is that contribution
is now allowed in a straight factional share.
1. California Statute – Straight fractional share!
2. P sues D1 and gets the entire amount ($200,000).
a. Later, D1 and D2 fight amongst themselves to halve the
amount. So D1 can then sue D2 for half of that and recover
100,000.00.
b. D2 can still sue D1 for indemnification as D1 is so much more at
fault, and is likely to get the money again!
e. AFTER COMPARATIVE NEGLIGENCE:
i. Each joint tortgfeasor remains individually liable for all damages caused, but
contribution allowed between them on a comparative fault basis.
1. American Motorcycle Association v. Superior Court:
a. Comparative regime does not destroy joint and several liability.
i. P = 30% responsible, D1 = 30% responsible, D2 = 40%
responsible.
ii. P can sue D1 for the 70%.
b. Doctrine of partial equitable indemnity was adopted at common
law to permit apportionment of loss among codefendents.
i. D1 can then bring an indemnity action against D2 to get
the 40% of the amount that he contributed to injury.
c. Any defendant may maintain an action against any party
(whether or not they are parties in the original suit) but judge
may put off dealing with those until after original suit.
2) VICARIOUS LIABILITY
a. Where a defendant can be jointly liable for the actions of another.
b. Strict liability  Does not require negligence on defendant’s part.
c. Employer-Employee Relations:
i. Respondeat Superior – “ let the employer answer.”
ii. If intentional tort - Employee must be working in scope of employment.
1. Ira s. Bushey & sons v. United States  Status as government employee
gave drunk sailor access to drydock where he caused mischief.
a. His actions were foreseeable to the gov’t.
b. Gov’t not responsible if he got in a fight on the street  his
relationship with gov’t got him access to drydock.
iii. Liable even if they took all possible precautions  SO if they tell an employee
not to do something, and he does anyway, still liable.
d. Independent Contractors:
i. Generally not liable UNLESS:
Torts: Fennell and Miles, Fall-Winter 08-09
1. They are performing non-delegable duties.
2. They are performing inherently dangerous duties.
3. If Defendant closely supervises independent contractor’s day-to-day
activities.
a. Sanford v. Goodridge  If superviser retains effective control
over day-to-day operations, I.C. is more like a regular employee
and therefore VL!
b. Petrovich v. Share Health Plan of Illinois  HMO held such
control over doctors in the plan, that they were not
independent contractors and HMO was liable.
4. Apparent Authority Doctrine: (In Petrovich v. Share Health Plan)
a. Did defendant hold themselves out as controlling those they
claim are “independent contractors”?
b. Did Plaintiff justifiably rely on the HMO to provide general
health care?
e. POLICY REASONS:
i. Employees just cannot afford to pay as much!
ii. Proper incentive sin controlling everything on the employers part!
iii. Might be hard to get at what’s happening within the workplace!
1. Want them to internalize the cost of an enterprise, which includes the
harm done to others by their own employees.
f. EXCEPTIONS:
i. Frolic and Detour:
1. If Detour, while still achieving things for employer’s benefit 
VICARIOUS LIABILITY!
2. If Frolic, where agent is on his own,  NO VICARIOUS LIABILITY!
CAUSATION!
1) CAUSE IN FACT
a. If plaintiff would not have been injured BUT FOR the defendant’s act, that act is a cause
in fact of the injury.
i. New York Central RR v. Grimstad  Defendant negligent in not providing lifejackets, HOWEVER not liable for lack of life preservers since decedent would
likely have died EVEN IF THE DEFENDANT HAD PROVIDED THE LIFE JACKETS 
Injury did result BUT FOR D’s actions!
b. Burden of proof on the PLAINTIFF: If negligent act more likely than not caused the harm,
then plaintiff has met his burden of proof.
i. Haft v. Lone Palm Hotel  D violated statute to have a lifeguard on duty.
1. It would have been impossible for plaintiff to show but-for since
decedent was dead, burden shifted to the defendant to show that no
effort to save them could have been effective.
Torts: Fennell and Miles, Fall-Winter 08-09
ii. Zuchowicz – over prescription of Danocrine was more probably than not the
cause of injury / substantial factor in producing harm
1. Otherwise, it’s hard to show that the EXCESSIVE use of the Danocrine
was the harm since you cannot state substantively that ordinary use
would not have caused the harm.
iii. Expert Testimony:
1. Frye – Expert testimony must show that the doctor’s research has been
“generally accepted” in the scientific community.
2. Daubert – Federal Rules of evidence are broader than Frye, which
tended to filter out a lot of cutting edge scientific work, by allowing for
more discretion on the part of the judge in allowing evidence.
a. THE BINDING RULE IN FEDERAL EVIDENCE (not in State courts!)
b. General Electric Co. v. Joiner  Judge allowed to disallow expert
testimony when there is a sufficient enough analytical gap
between data and opinion proffered.
c. LOST CHANCE DOCTRINE
i. Traditionally, P could not recover for a loss unless she could prove that she had
lost something that she was more likely than not to have acquired but for
defendant’s conduct.
1. MEDICAL  Courts have recently begun to allow suitds for loss of
recovery chances that are less than 50%.
a. Herskovits v. Group Health Cooperative  The reduction of
survival chance from 39% to 26% is sufficient evidence to allow
proximate cause issue to go to the jury.
2. Also, where defendant’s negligence has denied the plaintiff proof.
d. CONCURRANT LIABILITY:
i. Where separate negligent acts of the defendant and a third party concur to
cause a single injury, and it appears that the plaintiff would not have been
injured but for the concurrence, then both defendant and third party liable.
1. Kingston v. Chicago N.W. RR  joint-and-several liability when both
fires are human based.
a. EXCEPTION  where one fire is natural and the other human
caused, no liability!
ii. Similarly, when tortfeasors are jointly engaged, each is liable even though only
one of them inflicted injury  Joint-and-several liability.
1. Summers v. Tice  Two people fire on guy, and he is hit.  The burden
of going forward with the evidence shifts to each defendant to show
that his negligence was not the actual cause.
iii. SUCCESSIVE TORTFEASORS:
1. When successive acts of unrelated independent tortfeasors produce
harm difficult to apportion, they must try to disprove their responsibility
for the injury.
Torts: Fennell and Miles, Fall-Winter 08-09
a. Phennah v. Whalen  Women injured and gets into accident a
few weeks later that worsens her injured condition. Though
each D responsible only for the portion aused, the burden of
allocating that causation is placed on them.
iv. Market-Share Liability:
1. For large industry cases…
2. Exception to plaintiff’s burden of proof rule  P need not identify which
particular manufacturer made the injurious thing.
3. ONLY IN CERTAIN STATES!
4. ELEMENTS:
a. All named D’s are potential tortfeasors
1. SKipworth v. Lead Industries Association 
Since 100 years ago, more defendants than
were operable at the time will be held liable
(even though they are not at fault)
b. Allegedly harmful products are identical and share the same
defective qualities
c. The P is unable to identify which D caused the injury through no
fault of his own (Summers v. Tice)
d. All manufacturers who developed offending product during
time period are Ds (Sindell v. Abbott – Danocrine case)
1. Each manufacturer’s liability would
approximate its responsibility for the injuries
caused.
2. SKipworth v. Lead Industries Association 
Since 100 years ago, more defendants than
were operable at the time will be held liable
(even though they are not at fault)
2) PROXIMATE CAUSATION
a. More of a policy determination than anything else; under some circumstances, it is
deemed unfair to hold the defendant legally responsible for all consequences of his
wrongful conduct  How far does liability extend?
i. Ryan v. New York Central R.R.  D not liable for damage of house that fire
spread to  It is deemed too remote b/c otherwise is to subject to a liability
against which no prudence could guard; potential for infinite liability.
b. UNFORESEEABLE MANNER
i. Foreseeable result occurs, but comes about in an unforeseeable manner.
c. UNFORESEEABLE RESULT
i. Unexpexted extent or type of harm has occurred to a foreseeable plaintiff.
ii. Berry v. Sugar Notch Borough  Plaintiff’s speeding was not contributorily
negligent since the fact that it brought him to a location where a tree fell down
upon him was TOO REMOTE and NOT FORESEEABLE!
1. Did not result in an increased risk of THAT PARTICULAR RESULT!
Torts: Fennell and Miles, Fall-Winter 08-09
iii. Brower v. New York Central  Plaintiff has cider barrels stolen from his cart
after train accident  RR should have foreseen the potential effect of the
collision on plaintiff’s ability to protect his property, therefore not too remote.
iv. VIEWS ON LIABILITY:
1. Polemis View  Holds defendant liable for ALL DIRECT CONSEQUENCES
OF WRONGFUL CONDUCT!
a. In Re Polemis  Wood falls down and sparks fire that destroys
an entire ship, since direct cause  Liability.
2. Wagon Mound view  No liability for unforeseeable consequences.
a. Wagon Mound No. 1  No liability!
b. So then liability for foreseeable results of negligent act.
i. Marshall v. Nugent  Defendant caused accident, and
in trying to fix the mistake, plaintiff is hit by another
care; liable b/c it is foreseeable that a plaintiff would
attempt to help after an accident.
d. UNFORESEEABLE PLAINTIFF
i. Defendant’s act exposed a certain group of potential victims to a foreseeable
risk, but plaintiff was not a member of that group.
ii. Palsgraf v. Long Island Railroad  RR not liable since their duty did not extend
to random people on the platform; the plaintiff was unforeseeable and the
harm was a rare event.
1. Restatement of Torts (Second)  If actor’s conduct creates
arecognizable risk of harm only to a particular class of persons, the fact
that it causes harm to a person of a different class, to whom the actor
could not reasonably have anticipated injury, does not render the actor
liable to the injured.
e. INTERVENING AGENTS?
i. Was it reasonably foreseeable that result of intervening agents would in fact
occur?
1. Brower v. New York Central  Plaintiff has cider barrels stolen from his
cart after train accident  RR should have foreseen the potential effect
of the collision on plaintiff’s ability to protect his property and the
thieves’ actions, therefore not too remote.
2. ELEMENTS – SUPERCEDING CAUSE UNLESS…
a. Defendant should have realized that situation created would
afford opportunity for 3rd party to commit intention tort or
crime.
b. Likely that 3rd party would TAKE that opportunity!
ii. RESCUERS  Belief that negligent injury INVITES RESCUE!
1. Wagner v. International Ry.  Cousin falls out of train, and then other
cousin who is looking for him falls to his injury. Cardozo imposes
Torts: Fennell and Miles, Fall-Winter 08-09
f.
liability noting that “we may assume…that peril and rescue must be in
substance one transaction.”
PROXIMATE CAUSE AND EMOTIONAL DISTRESS…
i. FOUNDATIONS:
1. Originally only allowed as a cause in action if there was some sort of
physical contact (parasitic rule)
a. Mitchell v. Rochester Railway  Where P was between two
horses heads, no liability because her fright was a superceding
cause and there was no physical touching.
ii. MODERN VIEW:
1. ELEMENTS (from Dillon v. Legg):
a. Close relationship b/w plaintiff and victim.
b. Plaintiff must be at scene of accident and must be aware that
victim is injured.
i. In some states, this need not mean contemporaneous
Corso v. Merrill  Father’s emotional distress valid
after he was summoned to scene of accident by wife’s
screams.
c. Plaintiff must suffer distress beyond that likely to be suffered
by an unrelated bystander who witnesses accident.
AFFIRMATIVE DUTIES:
1) DUTY TO RESCUE:
a. GENERAL – Defendant owes NO DUTY to go to the aid of a stranger in an emergency.
i. Buch v. Amory Manufacturing Co.  “the duty to do no wrong is a legal duty.
The duty to protect against wrong is…not recognized or enforced by the law.
1. Defendant not liable when child trespasses and harms himself after
being told to leave.
ii. Hurley v. Eggingfield  Doctor not liable for refusing to come to the aid of a
patient.
b. EXCEPTIONS:
i. Special Relationship to plaintiff.
1. Parent/Child, Employer/employee, host/guest.
ii. Where defendant responsible for plaintiff’s peril.
1. D has DUTY TO:
a. Aid person in peril.
b. AND
c. Exercise due care in doing so.
2. EVEN IF D’S ACTIONS WERE NOT NEGLIGENT!
a. Montgomery v. National Convoy & Trucking Co.  Trucks
stalled on icy road, they were to exercise DUE CARE in warning
plaintiff placed in perilous situation!
Torts: Fennell and Miles, Fall-Winter 08-09
iii. Statutory Duty
1. Good Samaritan laws make it criminal!
iv. Where Defendant has VOLUNTARILY UNDERTAKEN TO AID PLAINTIFF:
1. If a defendant begins to aid someone who is helpless or in peril:
a. Must exercise reasonably care to secure the safety of the other.
b. May not discontinue his aid or protection, if by so doing he
leaves the other in a worse position than when D took charge.
2) DUTIES OF OWNERS AND OCCUPIERS:
a. AT COMMON LAW:
i. Injury on your land:
ii. Invited by landowner
1. Occupier has the duty of taking reasonable care that the premises are
safe.
2. This includes all business places  storeowner invites public to use the
land.
iii. On land with leave and license by landowner
1. No duty to ensure that premises are safe, but bound not to create a trap
or allow a concealed danger to exist that is not known to the visitor.
iv. As trespasser
1. No duty whatsoever.
2. Robert Addi & Sons v. Dumbreck  Child trespassing on land is harmed
by a dangerous thing; therefore there should not be liability by the
landlowner.
3. EXCEPTIONS:
a. “Willful and wanton”  Where landowner’s actions are willful
and wanton, liability.
b. Attractive nuisance  if landowner maintains something that
would draw children onto the land and subsequently they are
injured.
b. ALTERNATE APPROACH:
i. Now, duties of occupiers are based on traditional negligence principles.
ii. Has occupier acted as a reasonable person in the managemt of her property in
view of the likelihood of injury to others.
1. Rowland v. Christian  Man cuts his hand on a broken faucet;
apartment owner is liable because she should have reasonably warned
him.
iii. OFTEN THIS ONLY REFERS TO LICENSEES AND INVITEES, AND TRESPASSERS ARE
GOVERNED BY COMMON LAW RULES!
3) GRATUITOUS UNDERTAKINGS:
a. Defendant’s failure to perform a gratuitous promise does not give rise to a basis for tort
liability.
i. EXCEPTION:
Torts: Fennell and Miles, Fall-Winter 08-09
ii. WHEN DEFENDANT BEGINS ENTERING ON THE PROMISE, HE MUST EXERCISE
REASONABLE CARE IN DOING SO!
1. Coggs v. Bernard  Where D begins the work of the promise, he is
liable!
2. Marsalis v. LaSalle  Woman bitten by cat, and the owner agrees to
watch it, but let it get out and the woman needs to get rabies vaccine.
HELD, liable.
a. RATIONALE: It was done for the good of the woman.
iii. FORESEEABLE RELIANCE:
1. Defendant liable for failing to perform when he should have known that
plaintiff was RELYING ON THAT SERVICE.
a. Erie RR. V. Stewart  Crossing guard missing – since employees
rely on that service, the RR is liable to them. NOT LIABLE TO
REGULAR PEOPLE WHO DO NOT RELY ON THE SERVICE.
2. HOWEVER, liability does not extend to reliance on third parties in some
cases when duty is actually to the city. TOO REMOTE.
a. Moch co. v. Rensselaer Water Co.  Because duty is TOO THE
CITY and not the public at large!
4) SPECIAL RELATIONSHIPS:
a. Restatement (second) of Torts:
i. No duty to control the conduct of a third person to prevent him from causing
harm to another UNLESS:
1. Special relation exists between actor and third person which imposes a
DUTY UPON THE ACTOR TO CONTROL THIRD PERSON’S CONDUCT.
2. A special relation exists between the actor and the other which gives
the other a RIGHT OF PROTECTION.
b. VICARIOUS LIABILITY!
c. LANDLORDS:
i. Landlord owes duty of reasonable care in maintaining common areas.
ii. Must take reasonable precautions against FORESEEABLE CRIMINAL ACTS OF
THIRD PARTIES  Kline v. 1500 Massachusetts Avenue Apartment Corp.
1. POLICY JUSTIFICATION  Landlord is the only one with the power to
affect changes in these common areas.
2. AGAINST; Cross-subsidy argument  this only raises the rents b/c
landlord will raise them to either pay for settlements or make
changes; therefore against lessees who decided to value cheapness
over more safety.
3. Liability extended to colleges and universities; common carriers and
condominium owners.
d. PSYCHIATRISTS:
Torts: Fennell and Miles, Fall-Winter 08-09
i. Tarasoff v. Regents University of California  Established that a duty exists
where psychiatrists must warn potential victim if it is FORESEEABLE That their
patient will bring harm unto them.
1. DUTY OF CARE TO PUBLIC AT LARGE THROUGH REASONABLE
FORESEEABILITY STANDARD!
STRICT LIABILITY:
1) Animals:
a. Trespassing livestock Possessor of livestock trespassing on land or chattels is strictly
liable for trespass itself and any damage resulting.
b. HOUSEHOLD PETS:
i. WILD ANIMALS KEPT AS PETS  Strictly liable NO MATTER WHAT.
ii. Animals with known dangerous propensities  STRICTLY LIABLE
1. Harm must stem from these known dangerous propensities!
iii. Animals with NO dangerous propensities
1. “One free bite” rule Owner not liable unless he knew or should have
known of that animals dangerous propensities which are exhibited by
the animal having attacked before.
1. If no prior attack, then judged on negligence; did owner exercise
reasonable care in relation to the animal.
2. Gehrts v. Batteen  Dog had no dangerous propensity,
therefore liability hinged on negligence, which was found not to
be there.
2. However, if the animal has attacked before, then STRICT LIABILITY 
because owner should have notice that the dog has a dangerous
propensity.
2) Ultrahazardous Activities:
a. GENERAL RULE  one who maintains an abnormally dangerous condition or activity on
his premises may be liable for the harm caused even if the defendant has exercised
reasonable care to prevent the harm.
b. What is abnormally dangerous?
i. Rylands v. Fletcher: When someone brings something on the land that involves a
NONNATURAL USE and is LIKELY TO CAUSE SUBSTANTIAL DAMAGE IF IT
ESCAPES, is liable if it does escape.
ii. Spano v. Perini: BLASTING with dynamite  Since substantial risk no matter
what care exercised, then there is no reason that user should not be held liable
when injury does occur.
1. Policy = Who should bear the compensation for unavoidable accidents?
 those who are using the material!
c. Restatement (Second) of Torts Elements:  Factors to be balanced when determining
whether an activity is ultrahazardous
Torts: Fennell and Miles, Fall-Winter 08-09
i.
ii.
iii.
iv.
Did activity involve a high degree of risk of harm?
What was the gravity of the risk?
Can the risk be eliminated through the exercise of due care?
Is the activity one of common usage?
1. For example, driving a car, though dangerous, is not ultrahazardous
since the overall social utility is so high through common usage.
v. Was the activity appropriate to the place where it is being carried on?
vi. What is the value of the activity to the community?
1. Indiana Harbor Belt RR v. American Cyanamid Co.  Argues that these
standards are much like the questions being asked of negligence, and
therefore determines that NEGLIGENCE IS THE BEST WAY TO EVALUATE
THE SHIPPERS OF DANGEROUS GOODS!
1. NO STRICT LIABILITY FOR THE SHIPPER OF DANGEROUS GOODS!
2. Res Ipsa Loquitur applies  often, result of dangerous activity is
that the evidence is eliminated because of the nature of the
activity (BOOM GOES THE GAS TRUCK  Siegler v. Kuhlman)
d. Restatement (Third) of Torts  abnormally dangerous if:
i. Activity creates foreseeable and highly significant risk of harm when
reasonable care is exercised by all actors.
ii. The activity is not one of common usage.
e. DEFENSES:
i. Assumption of risk  bars recovery for plaintiff.
ii. Contributory negligence is ordinarily NOT A DEFENSE  HOWEVER< if the
plaintiff’s CN is knowingly and unreasonably subjecting himself to risk of
harm, then it can be used.
iii. NOT liable for the injuries that result from an abnormally sensitive character
of the plaintiff:
1. Rogers v. Elliott  Not liable for person who’s exacerbated health
condition is aggravated by ringing of church-bell.
3) NUISANCE:
a. ELEMENTS:
i. Act by defendant.:
1. Intentional
2. Nonintentional but negligent.
3. Strict liability through ultrahazardous activity.
ii. Nontrespassory invasion of plaintiff’s interest
1. Requires foreseeability on the part of the defendant.
iii. Substantial and unreasonable harm.
1. SUBSTANTIAL: Something that a reasonable person would take offense
at.
Torts: Fennell and Miles, Fall-Winter 08-09
2. UNREASONABLE: Conduct must be unreasonable in the sense that the
harm done by interference outweighs the justifications. THINGS TO
CONSIDER:
1. Suitability of the invading use to the neighborhood where it
takes place.
2. Value of the respective properties.
i. Fontainebleu  “Where a structure serves a useful and
beneficial purpose, it does not give rise to a cause of
action…” when no legal rights are being interfered with.
3. Cost to the defendants to eliminate the condition complained
of.
4. Social benefits from allowing the condition to continue.
i. Rogers v. Elliott  Not liable for highly sensitive plaintiff
since social benefit of church bells in services outweighs
the harm to the one person who will suffer from it.
5. UNREASONABLENES S MUST BE FORESEEABLE TO THE
DEFENDANT  Vogel v. Grand-Lafayette  Intentional invasion
claims fail because defendants tried to fix problem once they
were made AWARE OF IT.
3. AESTHETIC CONSIDERATIONS  Aesthetic considerations are not
actionable nuisances unless the activity is run with unreasonable noise,
odors, etc.
iv. Causation
1. If intentional  same as battery.
2. Negligence or Strict Liability  Rules of causation based on negligence
standards.
b. REMEDIES:
i. Judicial Relief:
1. Compensatory damages (liability rules)
2. Injunctions (for invasion of property)
1. Either total
2. Or Conditional
i. Boomer v. Atlantic Cement Co.  Injunction not wanted
because the value for the cement factory is important,
so instead damages should be awarded  BASICALLY,
INJUNCTION UNLESS THEY BUY OUT THE PROPERTYOWNERS!
ii. “Self-Help”
1. Abatement  Allowance to enter land to fix problem.
2. Michalson v. Nutting  Though no legal remedy, plaintiff can cut any
roots that come onto his own land.
c. DEFENSES:
Torts: Fennell and Miles, Fall-Winter 08-09
i. Contributory negligence.
1. Not a defense for INTENTIONAL NUISANCE.
2. Comparative negligence when there is an ultrahazardous activity being
done!
ii. Assumption of risk:
1. Consent  P cannot recover when he has consented to the building of
structures by the defendant.
2. “Coming to the Nuisance”
1. NOT A DEFENSE ORDINARILY (established in Ensign v. Wells)
2. If Plaintiff did not foresee damage complained of, not barred
from recovery.
3. Even if the plaintiff knew of the nuisance the majority holds that
the knowledge is no defense.
4. Ensign v. Wells  People move to Detroit where a kennel
business is being run, and decides that liability was held even
when the people were moving to the neighborhood.l
i. Social value of urban development is viewed as more
favorable than the actions of the defendant.
d. PRIVATE NUISANCE:
i. DEFINED  Nontrespassory interference with the plaintiff’s interest in the use
or enjoyment of property.
ii. Michalson v. Nutting  Not liable for tree on own property that has roots that
grow into the other land.
1. BUT PLAINTIFF HAS RIGHT TO CUT THOSE ROOTS THAT COME ONTO HIS
PROPERTY!
iii. Not responsible for highly sensitive plaintiffs  Rogers v. Elliott
iv. MUST BE AN INTERFERENCE WITH A LEGAL RIGHT
1. Fontainebleu  not liable when right being interfered with is not a legal
right.
1. Social utility of new hotel is greater than maintaining the
beachfront property of its neighbor!
2. HOWEVER, spite fences are NOT ALLOWED AND UNLAWFUL!
e. PUBLIC NUISANCE:
i. DEFINED  An act by a defendant that obstructs or causes inconvenience or
damage to the public in the exercise of rights common to all, or in the
enjoyment of common property.
1. Generally, only the state can redress public nuisance.
2. Private individual can maintain an action ONLY if she suffers an injury
apart from that common to the public (Anonymous dissent)
1. 532 Madison Avenue Gourmet Foods v. Finlandia Center 
Since public nuisance affected all people WITHIN THE CLASS OF
Torts: Fennell and Miles, Fall-Winter 08-09
PEOPLE WHO LIVED IN THE AREA CORDONED OFF, there was no
special harm suffered.
2. Leo v. General Electric  Since contamination of fish affected
commercial fisherman in an economic sense while recreational
fisherman in another (BOTH CLASS OF FISHERMAN), liability was
allowed.
3. Camden County Board of Chosen Freeholders v. Beretta  Too
remote! Gun manufacturer six steps removed from criminal end-users.
ORIGINAL ACTION MUST BE WITHIN THE SCOPE OF CONTROL OF THE
DEFENDANT!
PRODUCTS LIABILITY:
1) FOUNDATIONS:
a. Once only allowed when there was privity of contract between the end-user of the
product and the manufacturer (Winterbottom v. Wright).
b. PRivity requirement rejected in Macpherson v. Buick, wherein Cardozo insists that the
manufacturer has DUTY OF CARE towards FORESEEABLE END-USERS from FORESEEABLE
DANGERS.
c. Later, in Escola v. Coca Cola, California Supreme Court institutes a strict liability regime
for products liability because of:
i. Deterrent effect.
ii. Manufacturers better situated to front the cost for injuries.
2) LIABILITY BASED ON NEGLIGENCE
a. Macpherson  DUTY TO PROTECT AGAINST FORESEEABLE DANGERS IN REGARDS TO
FORESEEABLE USERS!
i. Liability extended by later courts to all persons foreseeably within the scope of
use (bystanders and pedestrians hit by car).
3) STRICT LIABILITY IN PRODCUT DEFECTS:
a. Most courts have held manufacturers and suppliers of defective products strictly liable
in tort to consumers and users for injuries (Greenman v. Yuba Power Products).
b. RATIONALE:
i. Defendant better able to bear risk (Greenman v. Yuba)
ii. Negligence action may not be adequate remedy.
iii. Incentive for safer products.
c. ELEMENTS:
i. Defect in the product.
ii. Defect attributable to the manufacturer or supplier.
iii. Defect caused the injury.
d. PROPER DEFENDANTS:
i. Manufacturers
ii. Retailers and distributers
1. DOES NOT APPLY to one-time seller; i.e. if I sell my car to you, I am not
liable for design defect.
Torts: Fennell and Miles, Fall-Winter 08-09
a. Only goes towards people who hold themselves out as retailers
and thus have public “trust.”
iii. NOT sellers of used and reconditioned products.
1. Partly assumption of risk on the part of the buyer, since theyu can
negotiate for a uised or worn good  NEGOTIATING AND THE POWER
OF THE MARKET.
iv. NOT service providers
1. Cafazzo v. Central Medical Health Services  Even though doctor used a
defective product, he was providing a SERVICE to the plaintiff and was
not either a seller or manufacturer.
2. Same applies to pharmacists.  if strictly liable, they would stop
carrying new and potentially life-saving medications.
e. THE RESTATEMENTS:
i. Restatement (Second) of Torts: Strict liability/Consumer Expectation Test
1. One who sells any product in a defective condition unreasonably
dangerous to the user or consumer is subject to strict liability for
physical harm if…
a. Seller engaged in business of selling such product.
i. NOT ONE-TIME OR SPORADIC SELLERS!
b. Expected to and does reach consumer with no substantial
change in condition.
c. NO PRIVITY REQUIREMENT!
d. Does not matter how much care seller has exercised!
2. Unreasonably dangerous  “dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it.”
ii. Restatement (Third) of Torts
1. One engaged in business of selling or otherwise distributing products
who sells or distributes a defective product is subject to liability for
hamr to persons or property caused by defect.
a. Manufacturing defect  when product departs from its
intended design even though all possible care was exercised in
preparation and marketing of product.
b. Defective in design  foreseeable risks of harm posed by
product could have been reduced or avoided by adoption of
reasonable alternative design…
c. Defective b/c of inadequate instructions or warning 
foreseeable risks of harm could have been reduced by warning
or instructions, and the omission of instructions renders
product not safe.
f. TYPES OF DEFECTS:
i. Manufacturing Defects:
Torts: Fennell and Miles, Fall-Winter 08-09
1. Product is NOT IN THE CONDITION THAT MANUFACTURER INTENDED at
the time it left his control.
2. Not liable when no injury to property or person is suffered (Casa Clare
Condominiums v. Toppino  Where houses were damaged; since the
only damage suffered was economic and no person or property was
injured).
3. PROOF -- >There can be CIRCUMSTANTIAL EVIDENCE!
a. It may be inferred that the harm sustained was a result of
product defect if:
i. IT WAS OF A KIND THAT ORDINARILY OCCURS FROM
PRODUCT DEFECT.
ii. IT WAS NOT SOLELY THE RESULT OF CAUSES OTHER
THAN PRODUCT DEFECT EXISTING AT THE TIME OF SALE
OR DISTRIBUTION.
1. Speller v. Sears Roebuck  If a jury can
conclude that a plaintiff excluded all other
causes of the fire, they can impose liability.
ii. Design Defects:
1. Product was in the condition intended by the manufacturer or supplier
but was designed in such a way that it presented an undue risk.
2. STANDARDS FOR JUDGING LIABILITY OF DESIGN DEFECTS:
a. “Open and obvious” – Camp v. Scofield
i. When danger is known and obvious to the user, the
manufacturer is not liable.
ii. Only liable for “ hidden dangers.”
iii. Young v. Volkswagon  “There can be no recovery if
the danger inherent in the particular design was
obvious or patent to the user of the vehicle.”
iv. LInegar v. Armour of America  Because cop knew of
the deficiencies in the particular vest AND THERE WERE
OTHER OPTIONS, he in fact made a consumer decision
to use a less-protective vest which would give more
mobility and therefore, NO LIABILITY>
1. Product worked as it was supposed to!
b. Consumer Expectations Test
i. Did the product function as an ordinary consumer
would have expected?
1. If not, liability!
ii. Young v. Volkswagon  Accidents are inevitable and
expected and foreseeable on the part of both user and
manufacturer  DUTY TO CREATE CARS THAT WOULD
BE REASONABLY SAFE IN AN ACCIDENT.
Torts: Fennell and Miles, Fall-Winter 08-09
1. Liability affirmed for car manufacturer for a
hidden danger that results in aggravated injury
upon collision.
iii. Halliday v. Sturn, Ruger and Co.  A product, such as a
handgun, that functions as intended and is dangerous in
its ordinary use, has no defect and cannot give rise to
liability based on defect.  Gun worked exactly,
tragically, as it was supposed to.
c. Risk-Utility Standard  Wade, On the Nature of Strict Tort
Liability for Products
i. Does the product’s utility outweigh the risk of harm?
ii. FACTORS TO CONSIDER:
1. Usefulness and desirability of product.
2. Likelihood that product will cause injury and
probable seriousness of injury.
3. Availability of substitute products which would
meet the same need and not be as unsafe.
4. Manufacturer’s ability to eliminate the unsafe
character of product without:
a. Impairing its usefulness.
b. Making it to expensive to maintain
utility.
5. User’s ability to avoid danger by the exercise of
care in the use of the product.
6. User’s anticipated awareness of the dangers
inherent in the product (either general public
knowledge or warnings).
7. Feasibility of spreading the loss by setting the
price of the product or carrying liability
insurance.
iii. Combined Approach (Consumer Expectation & RiskUtility)  Barker v. Lull  DOMINANT NORM TODAY!
1. Recovery is permitted if plaintiff establishes
either:
a. The product failed to perform as safely
as an ordinary consumer would expect
when it was used in an intended or
reasonably foreseeable manner.
b. BUT, even so, if the product’s design
was defective under the risk-utility
standard, consumer expectation would
not bar recovery.
Torts: Fennell and Miles, Fall-Winter 08-09
i. Barker v. Lull  “A product may
be found defective in design,
even if it satisfies ordinary
consumer expectations, if
through hindsight the jury
determines that… the risk of
danger inherent in the
challenged design outweighs
the benefits of such a design.”
4) THE DUTY TO WARN:
a. GENERAL RULE  Defects might arise from packaging and inadequate instructions,
warnings, labels, etc.
b. UNEXPECTED DANGERS:
i. Danger must be something that a reasonable user would have no reason to
expect or anticipate in the product.
1. Davis v. Wyeth Labs  One in a million chance of polio from vaccine;
liability for failure to warn.
2. If something the defendant might not have anticipated, will be analyzed
as a NEGLIGENCE QUESTION  Would a reasonable manufacturer have
known about this issue?
a. Vasallo v. Baxter Healthcare Group  Breast implants!
Manufacturers held to the standard of knowledge of an expert
in the appropriate field. Duty to warn purchaser sof risks
discovered following the sale of the product at issue.
c. UNAVOIDABLY UNSAFE PRODUCTS:
i. This does not render them defective, per se.
ii. A warning may suffice to avoid liability when a product’s design is NOT
DEFECTIVE ACCORDING TO RISK-UTILITY TEST.
d. ADEQUACY OF WARNINGS:
i. A warning to an unreasonably dangerous product may be inadequate if it does
not :
1. Specify risk product presents.
a. MacDonald v. Ortho Pharmaceutical Corp.  Liable because
warning on bottle does not specifically mention the risk of
stroke.
i. Duty to plaintiff because the plaintiff is so involved in
making the decision as to which birth control product to
use.
b. Hood v. Ryobi  Warning does not specifically detail what could
happen if saw used without protective covering.
i. A WARNING NEED ONLY BE REASONABLE UNDER THE
CIRCUMSTANCES
Torts: Fennell and Miles, Fall-Winter 08-09
1. The problem is, over-warning can render
warnings not useful.
2. Inconsistent with how product is to be used.
3. Does not give reason for the warning.
e. WHO MUST BE WARNED?
i. The warning must reach the person at risk from the danger.
1. Davis v. Wyeth Pharmaceuticals  Liability on failure to warn that there
was a 1 in a million chance that polio vaccine would result in polio.
2. PHARMACEUTICALS  LEARNED INTERMEDIARY:
a. Adequate warning need reach only the prescribing physician.
b. EXCEPTION  FDA rules must meet patient.
i. Where patient is the chooser of a type of prescription,
they should receive the warning. MacDonald v. Ortho
Pharmaceutical Corp.
5) DEFENSES TO PRODUCT LIABILITY:
a. CONTRIBUTORY NEGLIGENCE:
i. If user FAILED TO EXERCISE REASONABLE CARE TO DISCOVER DANGER OR
GUARD AGAINST IT  NOT A DEFENSE!
ii. If user UNREASONABLY MISUSES a product  A manner or for a purpose for
which no reasonable person would use it  A DEFENSE!
b. COMPARATIVE FAULT:
i. Reduce plaintiff’s recovery in strict liability by some amount to reflect the fact
that the injury was caused in part by plaintiff’s own carelessness.
1. Not comparative negligence  STRICT LIABILITY, recovery only reduced
by amount that plaintiff was contributorily negligent.
2. Daly v. General Motors Corp.  Creates comparative fault regime
within strict liability context of product’s liability.
3. ELEMENTS:
a. Conduct of the plaintiff combines with product defect to cause
the harm.
b. AND
c. Plaintiff’s conduct fails to conform to generally applicable rules
establishing appropriate standards of care.
c. Assumption of risk
i. If P KNOWS of the danfer or risk and UNREASONABLY CONTINUES TO USE IT!
1. Even if danger was not obvious, if P had LEARNED of it, then liability!
d. Disclaimers:
i. Generally not a defense as AGAINST PUBLIC POLICY in consumer transactions
 Vandermark v. Ford Motor Co.
1. EXCEPTION  Disclaimers between contracting parties of relatively
equal bargaining power (Ie, corporations).
e. FEDERAL PREEMPTION
Torts: Fennell and Miles, Fall-Winter 08-09
i. Federal legislation has impliedly preempted state legislation.
ii. Geier v. American Honda  Lays out the elements as such:
1. Does not pre-empt ANY tort claims.
2. Only those claims that conflict with the goals, intents and purposes of
the federal legislation.
3. FACTS  National Transportation and Motor Vehicle Safety act and
administrative regulations issued under it preempt state tort action
claiming that a car marketed without airbags was defectively designed.
a. These national acts intend for car manufacturers to experiment
with various types of passive restraints  NO ABSOLUTE NEED
FOR AIRBAGS, thus airbag provisions in state legislation conflict
with federal guidelines.
b. DISSENT  State’s should be able to answer the question about
whether larger public policy requirements for airbags should be
enacted because of its value as a safety device.
ECONOMIC HARMS:
1) INDUCEMENT OF BREACH OF CONTRACT
a. PRIMA FACIE CASE:
b. Defendant’s interference with existing contract
i. Not limited to servants/masters
ii. Lumley v. Gye  Expanded the role from only master/servant to ANY TYPE OF
VALID CONTRACT!
1. Opera singer was induced to sing at another opera house instead of the
one she contracted to sing at
iii. EVEN TERMINABLE AT-WILL CONTRACTS!
1. It is the interference with THE RELATIONSHIP that is the bad thing, and
not the contract itself!
iv. Exception, illegal contracts.
c. Intent – Defendant’s knowledge of existing contract.
i. Defendant must have been aware of the existing contract and that she intended
to cause the interference.
d. Causation
i. Actual and proximate.
e. Special Damages
i. Actual damages
ii. Consequential damages
iii. Mental suffering
iv. Damage to reputation.
v. Punitive.
2) INTERFERENCE WITH PROSPECTIVE ADVANTAGE
Torts: Fennell and Miles, Fall-Winter 08-09
a. PRIMA FACIE CASE SAME AS WITH INTERFERENCE WITH CONTRACT SANS EXISTING
CONTRACTUAL RELATIONSHIP.
i. Defendant’s interference with potential contract.
1. Tarleton v. McGawley  Defendant shot cannon at the native’s ship.
ii. INTENT - Defendan’t knowledge of that potential relationship.
1. Tarleton v. McGawley  “Had this been an accidental thing, no action
could have been maintained, but it is proved that the defendant had an
expressed intention not to permit any to trade…”
a. No right to take law into own hands!
2. Keeble v. Hickeringill  Unlawful act and intent to drive away ducks
from business!
iii. Causation
1. People’s Express Airlines v. Consolidated Rail Group  “A defendant
who has breached his duty of care to avoid the risk of economic injury
to particularly foreseeable plaintiffs may be held liable for actual
economic losses that are proximately caused by breach of duty.”
a. To whom is a duty owed?
i. Foreseeable in terms of type of person or entities
comprising the class.
ii. Certainty or predictability of their presence.
iii. Approximate numbers of those in the class.
iv. Type of economic expectations disrupted.
iv. Special damages.
DAMAGES:
1) PAIN AND SUFFERING:
2) ECONOMIC LOSSES
3) COLLATERAL BENEFITS
4) WRONGFUL DEATH
5) PUNITIVE DAMAGES:
a. REASONS FOR HAVING THEM (Kemezy v. Peters)
i.
b. How measured?
i. Degree of Reprehensibility of the defendant’s misconduct.
1. State Farm v. Campbell  Must be limited only to the conduct between
defendant and plaintiff.
ii. Disparity between actual or potential harm suffered by plaintiff and punitive
damages award
1. State Farm v. Campbell  Supreme Court states that there should only
be a SINGLE DIGIT MULTIPLIER!
iii. Difference between the punitive damages awarded by the jury and the vicil
penalties authorized or imposed in comparable cases.
Torts: Fennell and Miles, Fall-Winter 08-09
1. State Farm v. Campbell  Can be calculated against criminal fines and
punishments!
DAMAGES:
1) Pain and Suffering:
a. CONSTITUTED OF:
i. Mental distress over an injury.
ii. Disfigurement
iii. Loss of enjoyment of life.
1. McDougald v. Garber  Holds that loss of enjoyment is part of pain and
suffering since it is basically speculative, and policy consideration that
the jury should not have to speculate twice for the fear of overcompensation.
a. DISSENT  States that pain and suffering and loss of enjoyment
objectively different, and should be considered as such.
2. Patient must have some sort of COGNITIVE AWARENESS for remedies
for loss of enjoyment of life.
a. Can be slight  Only “some level of awareness”
b. Lots of discretion on the jury in awarding this since these are non-pecuniary damages!
i. “Per diem rule”  Jury asked to tabulate a per diem for each day according to
the plaintiff’s condition, and then multiply that by the expected life expectancy.
1. Prohibited in Botta v. Brunner
2. Some jurisdictions allow it nowadays!
ii. This discretion is such that an appellate court should rarely disturb an award of
general damages unless by ABUSE OF DISCRETION STANDARD OF REVIEW.
1. Duncan v. Kansas City Southern Railroad (church bus hit by train) 
General damages should be based on a review of cases involving similar
injuries.
a. Any amount higher than the highest amount reasonably
awarded in those cases should be considered abuse of
discretion
b. Amount should be reduced to the highest award reasonable in
light of comparison to case law.
c. WHY?
i. Not to compensate would be ignoring a very real loss.
ii. If no damages were avoided, potential tortfeasor lacks appropriate deterrence
to avoid imposing such intangible harm on victims.
2) Economic Loss (Pecuniary damage)
a. Compensated for past and future lost wages.
b. Value time by prevailing workmen compensation rates.
c. Estimates of lost wages must take into account life expectancy of the victim prior to the
injury caused by the tortfeasor and when she would have been expected to retire or
reduce work b/c of advanced age or illness.
Torts: Fennell and Miles, Fall-Winter 08-09
i. O’Shea v. Riverway Towing  Posner states that defendant should have
objected over the estimate of her retirement age.
1. Additionally, estimates should have taken into account her potential to
die or be incapacitated from working earlier than expected.
ii. Duncan  Life expectancy should be limited only to people of the victim’s like
state. Injured girl not compared to normal girls her own age, but girls her age
subject to similar injuries and disabilities.
d. Must be reduced to “present value”
i. Since award in lump sum, must be reduced to present value.
ii. The reduction must reflect the interest that plaintiff can earn on the advance
transfer of money for future losses in income.
1. Predicting what future interest rates or other investment value of the
money will be over the future period to be compensated.
iii. O’Shea  Inflation should be taken into account both in calculating what future
wages will be and also in the discount rate.
1. Problem is undercompensation  Two potential solutions!
a. Take inflation out of both the wages and the discount rate 
basically asserting that there would be zero inflation.
b. Incorporate inflation into both the calculations for discount rate
(subtract risk-free percentage of discount from risk-free +
inflation percentage) and future wages.
3) Mitigation Doctrine:
a. Victims have responsibility to act reasonably to limit losses incurred.
i. Seek medical care to avoid more serious consequences from injury.
ii. Get another type of employment.
1. Difficulty  what should be valued as substantially similar
employment? Does any old job count?
2. O’Shea  Since plaintiff is crippled, she will probably not have been
able to get another job.
a. STANDARD: Judge can decide that there is less than a 50%
probability that plaintiff would be able to get another job if she
reasonably attempted to.
4) DAMAGE CAPS  Should we have these? Statutorily defined limits…
1. Will change the activity levels –> the average will go down!
2. Don’t take nearly enough care b/c you won’t have to pay much in the
truly horrific cases such as Duncan.
3. Eggshell Skull Rule  To create a justifiable result…we should include
the high end as well as the low end of damages!
CONTINGENCY FEES
1) Where plaintiff’s lawyers are only paid out of the funds that the plaintiff recovers from
defendants.
a. Often limited in medical malpractice contexts.
Torts: Fennell and Miles, Fall-Winter 08-09
2) Beneficial, in that they are often the only way that a plaintiff can afford to hire a good
lawyer.
3) Often looked on favorably (freedom of contract argument).
4) Fixed fee  creates incentive to shirk; and a lawyer paid on a lump sum may not put in
as much work as case warrants.
5) Hourly wage  Often, incentive created to run up the hours.
6) Contingency  Though imperfect, better than a conflict of interests@
7) AT THE SAME TIME – Non-legal issues, such as reputation and desire to obtain future
business through word of mouth advertising often keep lawyers hard at work.
8) OFTEN, Defendant’s counsel is paid on an hourly wage basis
a. Requires more supervision of attorneys.
b. Repeat business is what keeps the clients coming back.
c. Sometimes they have tried contingency and it’s weird, since how do you
accurately calculate the amount saved through lawyer’s actions? Plaintiffs have a
baseline of zero, while defendant’s don’t, necessarily.
FEE SHIFTING:
1) Often, sides have to handle expert witness and attorneys fees.
2) Sides can only be awarded attorney’s fees when the prevailing party can clearly
demonstrate that the other side advanced a claim or defense that was frivolous or
malicious.
3) English and continental systems use fee-shifting…
a. Fee-shifting promotes settlements  since loss for both sides would be greater!
b. Therefore, risk-adverse plaintiffs in a fee-shifting system will not bring suit.
Sales of tort’s claims:
1) Currently prohibited.
a. But contingent fee system IS A partial sale of a tort claim.
2) BENEFITS:
a. Gets the victim immediate and certain com pensation at market value, closer to
what they would expect from a court judgment.
b. But couldn’t this result in a predatory market?  More advanced buyers taking
advantage of the plaintiffs!
c. Incentive  plaintiff has no incentive to appear sympathetic once he is
compensated.
i. They would need to factor in contractual agreements for cooperation!
3) What about unmatured?  If prospective patient sells rights to recover for pain and
suffering, they can be resold to health care provider and thereby eliminate pain and
suffering as an element in malpractice!
5) Attorney’s Fees!
a. Can be paid hourly
i. Incentive to run up hours by doing too much work in relation to stakes of the
case.
ii. May be appropriate where it is hard to define output.
b. Fixed Fee
Torts: Fennell and Miles, Fall-Winter 08-09
i. Creates incentive to shirk  lawyer might not work as hard.
c. Contingent fees  contingent on winning the suit (only available to P)
i. May range from 20-50%.
ii. Incentive for the lawyer to look out for plaintiff’s best interests.
d. Fee Shifting:
i. Might inspire more settlements since additional expenditures on litigation might
dis-incentivize a potentially losing party.
e. Sale of Tort Claims
i. Prohibited.
ii. Stupid idea  Overall compensation will go down. Unsympathetic juries 
lower awards  lower value to the claims  lower selling price for your claim.
6) Collateral Benefits
a. Collateral Source Rule:
i. Plaintiff’s recovery against defendant is not affected by compensation P
received from the sources from other sources.
ii. Harding v. Town of Townshend  Insurance!
iii. Some statutory reforms have rejected the rule and allow jury to consider
insurance payouts and deduct them from defendant’s liability.
b. Subrogation  Insurance company can essentially take charge of a suit (occurs in State
Farm Mutual Automobile Insurance Co. v. Campbell)
c. Reimbursement  Allows injured party to control litigation, but insurer can recover its
expenses from the proceeds of recovery.
i. Settlements  Plaintiff can structure the settlement to cut off the claims of the
plaintiff’s first-party insurer.
7) Wrongful Death:
a. Cause of action in the states.
b. No dollar cap on recovery.
c. Two standards
i. Loss-to-survivors: D must pay damages only if some beneficiary depends on
decedent for support.
ii. Loss-to-estate: Damages awarded even if the decedent had no dependents at
time of death.
d. Calculating damages:
i. Value of social company “the value of mutual society and protection, in a word,
companionship”  Wycko v. Gnodtke.
8) Loss of Consortium
a. Basically, you can sue for the loss of “services” by spouse.
PUNITIVE DAMAGES
1) BENEFITS (According to Kemezy v. Peters)
a. Compensatory damages are not always enough to truly compensate.
Torts: Fennell and Miles, Fall-Winter 08-09
i. Often, hard to valuate injuries are under-compensated for and punitive
damages help make the difference.
b. If compensatory damages fall short of actual compensation, then punitive damages
serve as a better deterrent SINCE DEFENDANT WILL NOW HAVE NO COST
JUSTIFICATION FOR ACTION IN LIGHT OF TRIAL.
c. Where actions are not cost-justified, wrongs will now be VALUELESS TO THE
WRONGDOER!
d. Likewise, if a tortfeasor commits multiple torts but only gets caught half the time,
compensating TWICE THE AMOUNT THROUGH PUNITIVE DAMAGES serves to make
none of those times cost-justified!
e. Not economically: punitive damages expresses abhorrence at defendant’’s act...beyond
that of mere negligent tortfeasing.
f. CRIMINAL JUSTICE SYTEM SERVES MANY OF THESE FUNCTIONS, BUT…
i. Tort system allows for people to settle potentially criminal offenses without
burdening the state  thus leading to a more optimal administrative efficiency!
ii. If system is overburdened, then the people will take the law into their own
hands!
2) DE NOVO REVIEW ON APPEAL!
3) ELEMENTS (as per State Farm Mutual Automobile Insurance Co. v. Campbell)
a. Degree of reprehensibility of the defendant’s misconduct.
i. State Farm  Should only be limited to the defendant’s conduct TOWARDS the
plaintiff. Outside conduct should not be factored into deliberations.
b. The disparity between the actual or potential harm suffered by the plaintiff and the
punitive damage award.
i. State Farm  Should only be a single-digit multiplier; anything other than that
is excessive.
c. Difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases.
i. State Farm  Can be judged against criminal fines.