Torts Condensed Outline
Intentionally Inflicted Harms (Δ is responsible for all ensuing harms, foreseeable and unforeseeable):
Physical Harms
 Battery
o RST §13. Battery
 “acts intending to cause a harmful or offensive contact with the person of the other or a third
person
 RTT §1. Intent: purpose of producing that consequence; knowing that the consequence
is substantially certain to result; Δ causes an imminent apprehension of a harmful
contact
 Harmful contact with the person of the other directly or indirectly results.
o Once intentional tort is established, Δ is responsible for all ensuing harms, foreseeable and unforeseeable
o Vosburg – intentional, unlawful or wrongful act against another that causes harm (take victims as they
find them)
o Transfer of intent: can be transferred among people and sometimes among torts
 Trespass to Land
o Dougherty – unauthorized entry onto another’s property (unless necessity)
o Coase Theorem – bargain lead to an efficient outcome if no transaction costs
o Intangible trespass (Van Wyk) – physical damage to the property cause by intentional intangible intrusion
(pollution, radiation)
 Trespass to Chattel – interference of possession
o Intel – occurs only when action causes damage, impairs functioning or interferes with possession
o CompuServe – spam caused damage to ISP, left tangible presence
o Damages: reduction in value of the chattel
 Conversiono Poggi – “unwarranted exercised of dominion over Π’s chattel that lead to harm, acting as owner
o Damages: Δ may return property if no substantial damage or payment for loss of interim use or for repairs
Defenses:
 Consent – action without consent can be battery (Mohr)
o Explicit –written release, verbal interchange
o Implicit – emergency (Allore) or inferred from nonverbal communication (O’Brien)
o Substituted – minors and mentally disabled
o Fraud in factum – doctor assaults patient (vitiates consent) v. Fraud in the inducement – bf tells gf he
loves her for sex
o Limits on Consent defense: protected by statute (Hudson – illegal fight), child, drunk, fraud, duress,
nondisclosure of material fact
 Insanity: McGuire – not a defense in intentional torts
 Self-defense: Courvoisier – no liability if situation leads a reasonable man to believe life in danger and must act to
protect self or others
 Defense of Property: no right to use deadly force in defense of property, must provide warning (Bird); M’Ilvoy –
lawful to handle force with force
 Recapture of Chattel: can use force if taken by force, fraud or without claim of title.
o Kirby - requires: 1) possession by the owner and 2) wrongful taking
o Hot pursuit requirement
 Necessity: valid to preserve property or life; must compensate for damage (Vincent) unless act of God
o Ploof – in necessity case, person may not resist entry but doesn’t have to help
o Public necessity then don’t have to pay damages
Emotional Harms
 Assault (I. de S. and Wife) – Π must have fear of unconsented touching;
 Tuberville – intent (or imminent apprehension of contact) and act that fails to touch
Strict Liability v. Negligence
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
SL v. Neg Debate
o Thorns Case – must compensate those you injured, if act is unlawful then must pay (SL)
o Weaver – if no negligence, then no action
o Scott (lighted squib) – if unlawful then liable, Blackstone –liable if immediate harm, DeGrey – if Δ
intends mischief and commits wrongful act, then liable for all the follows
o
Strict Liability Regime (Δ bears burden of proof)
o Places losses on Δ
P due care
P not using due care
D using due care
Liable
Not liable
D not using due care
o
o
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Pros:
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Cons:


Liable
Not liable (comparative negligence rule)
Decrease litigation costs
Makes easier for Πs to bring suits
Eliminates need for determination of standard of care or need to ask if Δ complied
Eliminates need for evidence to
More lawsuits
Holmes: difficult to act b/c unsure of what you’ll be liable for
 Any party can decide what actions to take if know from outside that they will be
responsible for harm
o Gets people to treat other’s stuff like it’s their own
o Fletcher (reservoir) – if you bring mischief unto land and it escapes, then liable
o Powell v. Fall – if using dangerous machine, liable for all injuries that may occur to another’s property
even if using due care
Negligence Regime (Π bears burden of proof)
o Places losses on Π
o Brown v. Kendall – negligence standard : if exercising due care and unintentional harm, no liability
P using due care
P not using due care
D using due
Not liable
Not liable
care
D not using
due care
o
o
o
o
o
liable
Not liable (contributory
negligence rule)
Pros:
 Sets standard. If you don’t meet it, then liable.
 Cuts out expensive lawsuits since Π must do more to win,
Cons:
 Remaining lawsuits are more complex, requiring more money and time
Brown v. Collins – civilized society so greater probability that something will happen in public way
Stone v. Bolton (cricket)
 1950 decision – SL for things that are reasonably foreseeable, duty to prevent harm
 1951 decision – Neg. – careful man must not create substantial risk and take reasonable care to
avoid injury (consider magnitude of harm)
Hammontree v. Jenner – SL doesn’t apply to drivers, no SL if sudden illness and injures others
Negligence
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Elements:
o Duty – Δ owed duty of care to Π
o Breach – Δ failed to meet duty
o Causation – Δ’s failure to take precautions is causally connect to Π’s harm
 Causation in fact
 Proximate Cause
o Damages – Π suffers personal injury or property damage due to Δ’s breach
Reasonable Man: objective standard, liable for negligence if don’t use caution of man of ordinary prudence
(Vaughan v. Menlove)
o Special considerations
 Mental acuity (Vaughan v. Menlove) – no break
 Consensual agreements: duty of care for bailment depends on the type of bailment
 Insanity – insane person can be held liable unless he has insanity of type that incapacitate him
from complying with the rule (use as affirmative defense)
 Breunig – not liable if: 1) insanity affects person’s ability to understand or appreciate
duty of care or affects ability to control actions in ordinarily prudent manner and 2)person
doesn’t have forewarning or notice that he may be subjet to mental illness or insanity
 Kids v. Adults: adult always treated like adults no matter age, allowance for kid Πs (Roberts);
 However, minors engaged in adult activities will be treated like adults (Daniels v. Evans)
 Flexible for kid Πs(treat like kids), more rigid (treat like adults) for kid Δs
 Beginners v. Experts – beginners held to standard of care of reasonably skilled and practiced in
art (unless Π assumed risk that Δ will exercise lower standard, i.e. drivers ed teacher and student)
 Physical Disabilities: City of Aberdeen – standard of negligence for disabled Π is level of care
engaged in by a reasonable person with same disability
 Intoxication: drunkenness doesn’t entitle you to different standard of care
 Robinson – if Δ commits gross negligence, then no contributory negligence even if Π is
drunk
 Wealth
 Denver & Rio Grand R.R. – wealth is irrelevant
Calculus of Risk
o Blythe – negligence is not doing something a reasonable main would or doing something a prudent
person wouldn’t
o Eckert (rescue kid from train) – cost-justified level of care; no contributory negligence when exposure to
risk is for greater purpose (saving life), not negligent unless act was reckless or rash
No Negligence if:
Expected Gain
>
Expected Loss
Principle object (i.e. saving life) X (probability of success with Magnitude of risk X value of the exposed
risk – probability of success without the risk)
object (object risk taker pursues)
o Osborne v. Montgomery – balance social interest to determine if act warrants liability
o Cooley (noise in phone) – Δ doesn’t have to take a precaution that will create a new danger
o Carroll Towing Co. - Learned Hand Test: If B(urden of precaution) < P(robability of harm) x L(oss),
then negligence; B < (Pwo – Pw) L(fixed loss in both cases)
o Lyons – no need for special instruction for emergency situation because reasonable person standard
already accounts for specific circumstances
 RTT: LPH §9 “If unexpected emergency requiring rapid response, this will be taken into account
in determining whether conduct is that of a reasonably careful person.”
o Andrews – common carrier owes duty of utmost care and vigilance which is consistent with mode of
conveyance and practical operation
Custom: Standards of particular industry
o Sword by Π – Δ negligent for failing to conform to standards
o Shield by Δ – claiming no negligence because Δ’s conduct conforms to custom
 Just because following custom not precluded from negligence, could be industry
o Stranger case: asymmetric information, only 1 party will know custom
o Consensual (relationship) cases: assumption of risk and knowledge since both parties will know custom
o Titus (dispositive view): common practice of business controls
Mayhew: custom irrelevant, custom doesn’t allow gross lack of care, even if universal
T.J. Hooper (tugboat w/out radio): 1931 – custom is evidence and not dispositive: another line equipped
so Δ should be equipped too, as custom requires; 1932 – practices of one line don’t dictate custom, court
should be aware of industry lag
o Jury responsibility to determine liability when custom changed since time product causing injury was
installed (Trimarco)
o Medical malpractice: custom is dispositive since experts best know reasonable standard –
 Lama – doctor must use the degree or 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
Statutes and Regulations
o Used to decide negligence per se, evidence of negligence , or no evidence
o Osborne v. McMasters – violation against statute constitutes negligence per se if statute is: 1) for safety
statute meant to protect or benefit others, 2) meant to protect class of which Π is member, and 3) meant to
protect against injuries like one suffered (similar to RST§286)
o Martin v. Herzog – Π that violates statute and contributing to cause of injury forfeits right to recovery if
link between violation and injury
 However, Tedla says – don’t limit statute to what’s written, take into consideration customary law
o RTT:LPH §15(b). “Accordingly, the common law recognizes that person can rebut negligence per se by
showing that he person made a reasonable effort to comply with the statute.” (i.e. driver who inspects/
maintains brakes, but they fail anyway)
o Brown v. Shyne: statute not designed to protect against trained professionals practicing medicine; for
statute to be evidence of negligence it must be something statute was designed to protect against; standard
of care: qualified chiropractor
o Uhr - A private right of action can be brought when: Π is one of the class for whose particular benefit the
statute was enacted; recognition of a private right of action would promote legislative purpose; creation of
such a right would be consistent with the legislative scheme. Here the Π failed on the 3rd element
Judge and Jury
o Judge (Holmes): case with comparatively small variations repeat, trial judge’s experience enables him to
represent common sense of the community better than jury. Should be able to lead and instruct. Exception
when standard is rapidly evolving
 Jury system is expensive and may be subject to passion or prejudice
o Juries: bring sense of community; provide check against domination of legal system by government
officials and professionals; cases aren’t exactly the same and best able to take into consideration subtle
variations of facts
o Baltimore and Ohio RR (stop, look and listen case) – question of care left to jury but court says since it’s
dealing with clear standard of conduct, law should be laid down once and for all by courts
o Pokora – up to jury to decide suitable conduct for traveler in situation where ordinary safeguards fail him;
caution in framing standards of behavior that amount to rules of law
Proof of Negligence
o Res ipsa loquitor – the thing speaks for itself; burden shifting device (from Π to Δ), allows liability based
on circumstantial evidence
 Where evidence of facts and circumstances is such as to take the case out of realm of conjecture
and into field of legitimate inference, prima facie case made
o When to use it
 Π not in position to provide evidence; Byrne v. Boadle – mere fact of thing happening is
negligence
 Multiple Δs – Ybarra – sued all people in operating room to get info about what happened
o Conditions:
 Colmenares Vivas – 1) event doesn’t ordinarily occur without negligence; 2) Δ has exclusive
control, and 3) Π didn’t cause/contribute to injure. (some duties are non-delegable)
o
o
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Plaintiff’s Conduct
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Contributory Negligence – established when the Π has not taken reasonable care, and in consequence of
her default has suffered injury.
o Δ bears burden of showing contributory negligence: duty, breach, causation and damages
o Complete bar to recovery
o Butterfield v. Forrestor – Π acted in a way to cause injury, which use of reasonable care would
have avoided, then action is blocked
o Beems (train signal) – if acted in way that was expected and cause injury, Π not contributory
negligent
o Gyerman (fish stacking) – contributory negligence if Π’s negligence is substantial factor in
bringing about harm, must be proximate cause
o Cases where establishing CN is difficult
 Safety statute – if Π sole cause of accident protected by statute, then no liability. If Δ
violates statute, can’t claim CN of people hurt
 Custodial cases – can’t claim contributory negligence b/c want to protect vulnerable
group (Padula – drug rehab patients mix tang with ditto fluid)
 Medical Malpractice – differential in knowledge, hard to blame patient from not know
what to do
 Private necessity/emergency – Raimondo – Π ran into traffic to escape gang attack
o LeRoy Fibre (haystack near train) - rights of use of your land do not give way to wrongs of
others; Holmes (concurrence): call in the jury to see whether it was too close (a substantial
certainty of fire)
o Derheim v. N.Fiorito – no seatbelt defense unless statutory law requiring duty to wear one
o Doctrine of last clear chance
 Fuller – contributory negligence of the party injured won’t defeat action if Δ might by
exercise of reasonable care and prudence have avoided the consequence of the injured
party’s negligence
 Inattentive v. Helpless Π on pg. 44 of outline
o Imputed CN
 Usually limited to pecuniary joint venture (master/servant, joint enterprise), don’t impute
CN of parents onto children
 Mills v. Armstrong - both ways test: if A can be held vicariously liable for the torts of B,
then the CN of B should be imputed to A to bar A’s recovery; negligence of driver not
imputed to passenger
 Dashiell – if joint enterprise, then can impute contributory negligence
Assumption of Risk – asks whether Π has deliberately and voluntarily encountered a know risk created
by the Δ’s negligence (only defense in strict liability action)
o Lamson – if Π voluntarily assumes a know risk, can’t recover
 Bargain with employee for higher wage to compensate with riskiness
o Meistrich
 Primary AoR – Π expressly or impliedly relieved Δ of duty to mitigate or relieve the risk
causing injury from which action arises, complete bar
 Secondary AoR – Δ owes duty of care, but Π proceeds to encounter a known risk
imposed by Δ’s breach of duty. Ask: would reasonably prudent man have assume risk. If
so, act the way Π did? (merged into comparative fault scheme)
o Murphy (Flopper) – if foreseen hazard, the Π assumed risk
o Public officials – don’t have AoR defense because they knowingly and voluntary confront hazard
Comparative negligence (legislation and common law moved in this direction) – reduce amount of
damages recoverable proportionate to Π’s negligence
o Pure Form: damages apportioned strictly based on jury’s assessment of Π and Δ’s fault %
o Modified: Π is not barred as long as they don’t reach a threshold don’t bar recover if Π’s
negligence is: (1) < sum of Δ’s negligence; 2) if < than each Δ separately
o Li v. Yellow Cab – adopts pure comparative negligence
Multiple Δs: Joint, Several and Vicarious Liability
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

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Joint liability: implies that each of several Ds is responsible for the entire loss that they all caused in part.
Several liability: holds each D responsible only for his proportionate share of the loss.
Joint and several liability refers to any situation where the Δs are joint to the Π meaning each can be held
responsible to the whole, but bear several liability amongst themselves, if all are available to pay.
o Union Stock Yards – either Δ can be sued without indemnity against the other; except when one Δ is less
culpable than the other
 Law presumes that when Π settle with one Δ, the others are still liable (reduced by proportionate
fault share)
o Partial indemnity – if you’re x % guilty and have to pay 100%, sue other Δ for (100 –x)%
o Pro Rata - liability divided among number of Δs, allows Δ to recover from his coΔs any amount above his
own share.
o American Motorcycle Association - although Li in itself does not discard the doctrine of joint tortfeasors,
the underlying principles hold for a system of partial indemnity between concurrent tortfeasors on a
comparative fault basis. If Δ is insolvent, others are responsible for fault.
 Evangelinos rule – if party is insolvent the shortfall is apportioned equitably among the remaining
culpable parties – Δs and Πs
Vicarious Liability
o Employer/Employees (subject to control of person who hired him)
 Bushey & Sons v. United States – vicarious liability because action was foreseeable and related to
sailor’s duties
 Frolic & Detour
 Employee driving to work – no vicarious liability, courts divided about way home
 Vicariously liable for detours: slight, usual, expected and tolerated, acting in part in service
of employer
 Frolic: longer period of time and far from employment
 Even if act done was expressly forbidden employer can be held liable if act was within scope of
employment or in furtherance of the employment
 If employee commits intentional tort acting on personal motives, no liability; but if can prove that
employer was negligent in not stopping conduct, then liable
 Liable for negligent hiring or supervision, even for wrong that falls outside scope of employment
(Schechter)
o Sexual harassment not within scope of employment, but liable for creation of hostile environment by
superior with direct or successive higher authority over victim
 Affirmative defenses: took reasonable care to prevent and promptly correct harassment, employee
failed to take advantage of preventive or corrective opportunities provided by employer.
o Independent contractors
 One who hires independent contract is not generally liable for the torts of that person
 Exceptions:
 Employer is negligent in her own dealings with independent contractor
 Some duties of care that are so important that they can’t be delegated
 Liable when there is negligence as to danger inherent in the work
 Petrovich - vicarious liability may exist for the actions of independent contractors when an agency
relationship is established under a)apparent authority (give appearance of authority) or b)implied
authority (alleged agent retains right to control manner of the work)
o Borrowed servant
 Traditional rule: If servant is furthering business of general employer by serving another, no
inference of new relationship unless command has been surrendered
 Modern rule: both general and special employer liable
o Partners in joint enterprise: will be held vicariously liable for the wrongs of each other
 4 requirements
 Agreement, express or implied, between members
 Common purpose to be carried out
 Common pecuniary interest
 Equal right to a voice (control) in enterprise
Causation
 Cause in fact – did Δ’s negligent conduct cause Π’s harm
o “But for” test: Δ’s conduct is a cause in fact if the Π’s harm would not have occurred but for the
conduct
o NY Central RR – Δ liable there must be something to show that the Π’s injury would not have
occurred with negligence
o Zuchowicz – Δ acted wrongfully b/c act increased the chances that a particular type of accident
would occur and mishap of that very sort did occur, enough to support a finding that negligence
caused harm
o General Electric – judge is gatekeeper to ensure that scientific testimony is relevant and reliable
(Daubert), extended to technical evidence
o Herskovits – person who negligently renders aid and consequently increases the risk of harm is
liable for any physical damages
 Lost chance doctrine – allows Π to recover in proportion to chance of survival prior to
negligent treatment (must show Π deprived of chance and it resulted from negligence)
o Overdetermined causation: 2 Δs act negligently and either one’s act could have caused Π’s injury
 Kingston: Δ can’t escape liability because can’t determine which one caused harm;
sequential act: 1st one to arrive gets liability (unless 1st is natural then no liability)
o Alternative causation: 2 or more Π simultaneously commit same act
 Summers – held joint and severally liable on theory of alternative liability, each actor
must prove he hasn’t caused harm
o Marketshare liability: not able to tell who caused harm, Δ caused universal harm which Π was a
part
 Sindell:
 All Δs named are potential tortfeasors
 Fungible product (available substitutes)
 Π can’t identify which Δ produced product which cause particular harm
 Substantial share of manufacturers who produced product during relevant time
period are named
 Skipworth – market-share liability doesn’t work if all 4 requirements aren’t met
o Δ in concert – joint and several liability
o Independent actors combining to create harm – joint and several liability
o Two actors acting independently and cause different proportions of harm – break causation apart,
two actions
 Proximate Cause – appropriate scope of Δ’s legal responsibility for negligence that has in fact caused
harm
o Substantial factor test – intervening or concurrent human actions or natural events that occur
after Δ’s conduct but before the Π’s harm sever the causal connection between them
 Forward looking – place burden on Δ who had violated statute in the 1st place, to show
that its negligence was not the cause
o Physical Injury
 Natural and Probable
 Ryan v. NY Central RR – immediate result of act was destruction of Δ’s building,
anything more is too remote
o Better to buy insurance
 Coincidence
 Berry v Sugar Notch: Π’s speeding didn’t increase risk of being struck,
coincidence so liable
 Third Party Interveners

Brower (cider stolen from train): a 3rd person’s act intervening and contributing a
condition necessary to the injurious effect of the original negligence will not
excuse the 1st wrongdoer if such act ought to have been foreseen
o Maliciousness will break the chain
 Rescuers
o Wagner: rescuer can recover damages from person who created situation;
must show Δ was negligent to person rescued; peril was imminent,
reasonable person would conclude that peril existed, rescuer acted
reasonably
 Directness Test
 Polemis – if negligent Δ liable for all direct consequences, natural and proximate
= consequences following unbroken sequence
 Foreseeability
 Palsgraf – no duty to people who you couldn’t foresee hurting. Liable for
unforeseeable harms to foreseeable Π.
 Marshall v. Nugent (truck forces car off highway) – harm within the risk: liable
for consequences of foreseeable risks, but not for consequences of unforeseeable
risk
 Reasonable Foreseeability
 Wagon Mound No. 1 – is the injury the result of conduct that could be foreseen
by negligence; liable for probable consequences of actions
 Virden (fall off later) – no liability if Π’s injury doesn’t fall within scope of
probable risk of Δ’s negligence
 Herbert v. Enos – no liability for freak accidents, where injuries are type of
unforeseeable consequence of an unforeseeable accident
o Emotional Distress
 Mitchell: emotional harms can only be recovered when attached to physical harm
 Dulieu: rejected requirement of physical injury; damage is proximate if direct and natural
consequence of harm
 Dillion: abandon zone of danger requirement, 3 prong test to determine liability: 1) Π
near scene, 2shock resulted from observance of the accident, 3) Π and victim were
closely related
Affirmative Duties
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Duty to rescue
o Buch – Δ has no duty to protect trespasser (even if minor); trespasser exposes self to risk
o Hurley – physician had right to deny services, may choose whether to practice and terms he will
accept
o Montgomery (no warning at top of hill) – Δ owed duty other highway users in such a way as to
prevent harm from risk created, even though not negligent; no duty to help, but duty not to harm
o Zelenko – if Δ undertakes a task, even if under no duty to undertake, Δ must not omit to do what
ordinary man would do in performing the task.
o Soldano – Δ not required to aid, but required to allow police to be called
Duties of owners and occupiers
o Robert Addie & Sons:
 Proprietor has no duty to trespasser, who enters at own risk, unless injury is due to
willful act involving deliberate intention to do harm or recklessness
 Invitees – Δ owes highest care, must take reasonable care that premises are safe
 Business – someone who goes on land for purpose in which he and proprietor
have joint interest
 Public – held open to public for a purpose
 Licensees – no duty to ensure premises are safe, but bound not to create a trap or allow
concealed danger to exist on premises
 Social guests
 People who come on land without permission, but who you don’t make get off
o Attractive nuisance – applies to artificial conditions on land; possessor should have known that
kids are likely to trespass and that condition creates risk of harm. Burden to eliminate risk
o Rowland – abandons classification, general liability principles, Δ negligent for not warning when
aware of defective and dangerous faucet and high probability of harm
Gratuitous undertakings
o Coggs – if any man begins to undertake an act and through negligence causes injury, liable
o Thorne – not liable for gratuitous promise if act hasn’t begun
o Erie RR – where custom established, RR created positive duty for itself by establishing a
standard of care upon which the Π relied (public generally). Once established, duty to warn if
discontinue custom.
o Marsalis – one who voluntarily undertakes to care for or to afford relief or assistance to another,
has legal duty to use reasonable care and prudence
o Moch – city had no legal duty to protect citizen from fire, lack of privity.
Special Relationships
o Cases in which Δ is put in charge of Π
 Carrier-passenger; innkeeper-guest; landowner-invitee; custodian-ward; employeremployee; parent-minor child; doctor-patient
o Weirum (dj promotion): liable for actions of 3rd parties if you inspire them to act in dangerous
ways
o Kline v. 1500 Mass – landlord has duty of reasonable care to provide safe building if best risk
avoider and has greater control to take action; violence must be foreseeable and not by someone
with access
 Let market determine level of security in order to prevent cross-subsidy
o Tarasoff – duty to warn against potential foreseeable harm posed by 3rd party if has a relationship
with 3rd party or with person to be protected, must be identified victim and imminent harm
Traditional Strict Liability
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Animals
o Wild animals – strict liability (Gehrts)
o Domesticated animal: dangerous propensity? (Gehrts)
 If yes, strict liability (Gehrts)
 If no, negligence regime. Liability if negligent (Gehrts)
o Distress damage feasant – taking chattels, that are doing damage to or encumbering land, or depasturing chattels and retaining them by way of security until compensation is paid
o Fencing out v. Fencing in
 American west fencing out rule – allow for grazing
 Now – land used more intensively, so fencing in rule to prevent animals from trespassing
Ultrahazardous activities
o (RST §520): existence of a high degree of risk of some harm to person, land or chattels of another
 likelihood that the harm that results from it will be great
 inability to eliminate the risk by the exercise of reasonable care
 extent to which the activity is not a matter of common usage (undesirable activity?)
 inappropriateness of the activity to the place where it is carried on
 extent to which its value to the community is outweighed by its dangerous attributes
o Spano – one who engages in blasting must assume responsibility and be liable without fault for
injury
o Indiana Harbor Belt RR – deny recovery because 6 RST §520 criteria not met. Not necessarily safer
to rout train away from metro area
Nuisance
o Private nuisance
 Vogel – stray voltage nuisance b/c interfered with private use and enjoyment of land
 Elements
 Π has possessory interest in land
 Unreasonable harm (factors – non-reciprocal, character of neighborhood, social
expectations, magnitude, frequency, duration, gravity of harm, utility of activity)
 Michalson – owner at liberty to use land as he desires, Π can cut intruding roots but not
worth litigating
 Fountainebleau Hotel – Π can’t bring action if structure serves useful and beneficial purpose
even if cut off the light and air, no legal right to free flow of light and air
 Extra-sensitive Π
 Rogers v. Elliot: person’s right to use property doesn’t depend on peculiar
temperament of nearby people
 Coming to Nuisance (Ensign) – nuisance must move as city grows, coming to nuisance isn’t
bar to recovery but rather a factor in considering recovery (also consider highest value user,
harms/externalities, administrative cost, transaction costs, error costs, etc.)
 Boomer – court granted injunction conditioned on payment of permanent damages to Πs
 Other available remedies(conditional injunctions, periodic or permanent damages, no
remedy)
 Π may enjoin Δ but may have to compensate Δ for loss incurred (Spurr v. Del Webb)
o Public nuisance
 Anonymous – private action is maintainable only for special, peculiar or disproportionate
harm to Π
 532 Madison Ave. – injuries should be special and different in kind not just in degree
 Camden County – Δ must exert a certain degree of control over its source. If independent
party caused the nuisance, parties that have not controlled or created the nuisance are not
liable.
Economic Harms
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Inducement of Breach of Contract
o Lumley v. Gye (1835): a person may bring action against a Δ who entices a servant, who is
under a valid contract to give exclusive personal services to the Π for a specified period, to
refuse give such services during the period for which the services during the period for which the
services have been contracted, whereby Π is injured
Interference with Prospective Advantage
o Tarleton – not allowed to take actions of the government into your own hands
o People Express Airlines – Δ owes duty of care to take reasonable measure to avoid risk of
causing economic damages to identifiable classes of Πs whom the Δ has reason to know are
likely to suffer such damage from its conduct (particular foreseeability)
Misrepresentation – Δ’s misstatements or misrepresentation and that Δ knew that statements or representation
were false or at least that he was indifferent to truth or falsity
 Fraud
o Pasley – if no injury is occasioned the by the lie, then it’s not actionable, but if be attended with
damage, then it becomes the subject of an action (requires deliberate proof of lying)
o Peek – fraud when false representation had been maid knowingly, without belief in its truth or
recklessly, careless whether it is true of false. False statement is NOT fraudulent, if person
honestly believes statement is truth
o Vulcan Metals – misrepresentation regarding quality is puffing and not fraud. Buyer could get
this info; misrepresentation regarding vaccums never being put on market – not info Π could get,
relied upon info
o Swinton (termite) – no false statement of representation by Δ or indication that he prevented the
Π from finding out this information about the condition, Δ has no duty to provide Π any info
regarding non-apparent defects know to him
o Laidlaw – no duty on buyers of goods to disclose information to sellers. If both parties are
engage in industry, don’t require them to divulge info
o Edgington – installments and outstanding mortgage are non-disclosure, so no fraud;
misstatement about use of funds is crucial for determining whether to invest, so fraud. Case
about future intentions
o Laborers Local 17 Health and Benefit Fund – court says injuries are not sufficiently direct claims
are derivate of the workers’ claims. Workers should sue and union recover through
indemnification
 Negligent Misrepresentation
o Ultramares Corp. – no fraud because no mal intent to deceive. Distinguished from Glanzer v.
Shepard ( where service rendered by the Δ was primarily for 3rd party, close commercial
relationship, and easy to calculate damages)
Products Liability
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PHASE ONE: privity limitations prevented the injured party from suing the remote supplier of the
product.
o Winterbottom: the liability of the contractor or manufacturer for negligence in the construction
or sale of articles which he makes or vends is limited to the persons to whom he is liable under
his contracts of construction or sale.
o Three exceptions in American cases: (Huset)
 When negligence of manufacturer or vendor is imminently dangerous to life and
committed in preparation of product intended to preserve, destroy, or affect life.
(mislabeled poison)
 owner invites user to use defective product on owner’s premises and user is injured,
owner may be liable. (badly built scaffold)
 one who sells or delivers an article which he knows to be imminently dangerous to life or
limb to another without notice of its dangerousness (Huset), is liable for any injury that
might have been reasonably anticipated, with or without contractual relationship.
(knowledge of defect, fraud (Kuelling), misrepresentation)
PHASE TWO: reject privity limitation and impose liability in negligence on a remote seller.
o MacPherson: If a product is reasonably certain to cause harm if defective, it is a dangerous
thing.Manufacturer of dangerous thing is liable when:
 it is foreseeable that it will be used by those other than the purchaser without
undergoing further tests
 the danger inherent in a defective thing is probable, not merely possible
 PHASE THREE: strict liability should govern manufacturer’s liability (Escola)
 Defect narrowly defined as latent miscarriage in the manufacturing process
 Normal and proper use by P where the defect is traceable to the product in the
condition in which it reached the market.
The Restatements:
o R2T §402A provides: says strict liability
o RTT:LPL §1: Liability of Commercial Seller of Distributor for Harm cause by Defective
Products
o RTT:LPL §2: Categories of Product Defects
 A product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of inadequate
instructions or warnings.
o Caveat: no opinion expressed whether the rules may not apply to harm:
 to persons other than users or consumers,
 to the seller of a product expected to be processed or otherwise substantially changed
before it reaches the user or consumer,
 to the seller of a component part of a product to be assembled.
o A defect is that which is not what the consumer expected.
 Defective condition: rule applies only where product is already defective when it leaves
seller’s hands,
o Contributory negligence doesn’t apply to failure to discover defect or guard against it, but does
apply to voluntary assumption of risk if user discovers defect and uses product anyway.
Phase Four: Modern product liability—defective design and duty to warn are the primary issues
o Cafazzo: Products fall under strict liability, services under negligence Dr was only performing a
service and is not strictly liable for a product defect. 4 part test:
 Are there other members of the market exchange available?
 Would strict liability provide an incentive to safety?
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Would the supplier be in better position than manufacture to restrict the
circulation of defective products than doctors?
 Whether the supplier of the product can distribute the cost of compensating for
injuries resulting from defects by spreading the charges?
 Murphy v E.R. Squibb & Sons, Inc. (Cal. 1985) pharmacists provide services
o Potential Ds—all sellers from manufacturer on down—all held to same standard, all held to same
liability as manufacturer—even when intermediaries have been entirely passive.
 Vandermark held a car dealer strictly liable for product defects. Adds incentive to safety,
because retailer will exert pressure on manufacturer.
 Product liability has been extended to the builders of mass-produced homes, wholesalers
and distributors, and to lessors and bailers of personal property.
 Exception: casual sellers & dealers in used products not in business of selling.
o Potential Ps—all users and consumers of products
 Modern law also allows bystanders to recover from manufacturer
 Only physical harms but not economic harms covered (Casa Clara Condo Assoc)
 Peter’s dissent in Seely is important. Peters has a proximate cause argument. He
says that the nature of the damage sustained is by the Π is immaterial, so long as it
proximately flowed from the defect.
Product Defects
o Manufacturing Defects: manufacturer’s liability for a defective product is predicated upon
negligence in the manufacture or design of the product.
 P has to prove that injury resulted from a condition of the product which was
unreasonably dangerous and which existed at the time the product left the manufacturer’s
control.
o Defect doesn’t have to manifest itself at once
o Have to show that defect renders product dangerous
 Complication: food cases where some natural ingredient is both natural and dangerous.
Test becomes consumer expectations: natural ingredient is defective if not expected.
 CASE: Speller: Π must prove that the product did not perform as intended and exclude
all other causes for the product’s failure that are not attributable to Δ to proceed in the
absence of evidence identifying a specific flaw. (R3T §3)
Design Defects
o Concealed design defects are treated like manufacturing defects—require manufacturer to make
his product design meet his own performance standard.
o Crashworthiness cases expanded design defects liability. Defect lay in car’s failure to protect
occupant [P] against crashed caused by P or by 3rd party
 Volkswagon of America: under negligence, manufacturer is liable for a defect in design
which it could reasonably have foreseen would cause or enhance injuries on impact,
which are not obvious to user, and which in fact lead to injuries in a collision.
o Standards of design defect liability—theories
 Open and obvious dangers—offer and acceptance model. Shifts blame to consumer.
 Campo: Once P has manifest notice of the danger, he can decide whether to use
the product or seek out a safer one.
 But, Micallef—lack of safety mechanism on printing machine. Manufacturer is
obligated to exercise that degree of care in his design so as to avoid any
unreasonable risk of harm to anyone who is likely to be exposed to the danger
when the product is used in the manner for which it was intended as well as
unintended yet reasonably foreseeable use. (liable even though foreseeable)
 Reasonable alternative designs (R3T PL §2(b))—negligence standard generally used.
 Barker v Lull: product is defective in design when (1) the product fails to perform
as safely as an ordinary consumer would expect when used as intended or as is
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reasonably foreseeable, or (2) the benefits of the challenged design do not
outweigh the risk of danger of the design. In deciding (2) jury may consider the
gravity of the danger posed by the challenged design, the likelihood that such
danger would occur, the mechanical feasibility of a safer alternative design, the
financial cost of an improved design, and the adverse consequences to the product
and to the consider that would result from an alternative design, among other
factors. (approach looks at foreseeability from hindsight)
 Cf. Risk-utility test—makes everything relevant and nothing dispositive—favors
P.
o Usefulness and desirability of the product—its utility to the user and to the
general public
o The safety aspects of the product—the likelihood it will cause injury and
the probably seriousness of the injury
o Availability of alternative product which would meet the same need and
not be as unsafe
o Manufacturer’s ability to eliminate the unsafe character of the product
without impairing its usefulness or making it too expensive
o User’s ability to avoid danger by the exercise of care in the use of the
product
o User’s anticipated awareness of the dangers inherent in the product and
their avoidability based on general public knowledge and accompanying
information
o Feasibility, on the part of the manufacturer, of spreading the loss by
setting the price of the product or carrying liability insurance.
 Linegar v Armour of America (8th cir 1990): Law doesn’t obligate
manufacturers only to make the safest possible design, b/c other factors like cost
and consumer preference are involved.
State of the art—products are reasonably safe when D’s product design conforms to state
of the art of the relevant trade or industry. Most courts don’t’ allow compliance with the
state of the art to resolve the design defect question in Δ’s favor but treat it as a factor to
consider what is necessary and probative on the issue of ‘unreasonably dangerous’.
Consumer expectations—totality of the consumer’s knowledge about product
 Looks to appearance, common knowledge about product’s use and limitations,
literature that accompanies it. (R2T §402A)
 Halliday (child kills himself with gun): no cause of action existed under the
consumer expectations test b/c gun did exactly what consumer expected.
Duty to Warn
o Hood: Δ must provide warnings sufficiently clear and specific to apprise the ordinary consumer
that it is unsafe to operate the saw without guards.
o Manufacturer of finished product has to create warning and all downstream distributors have to
transmit it with the product.
o Retailer is liable when manufacturer fails to include warning in a sealed package
o Usual RULE: reasonable efforts should be made to bring the risk to the attention of the actual
users, or, if that is not possible, to qualified intermediaries who then can either act on the
information required or pass it on to those who need it.
 McDonald: birth control manufacturer’s duty is to provide the consumer written warnings
Duty to warn consumer directly b/c: 1) consumers are actively involved in the decision to
use the pill, (2) the patient does not have the regular opportunity to consult with a
physician, and (3) the pill is subject to its own federal regulations.
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If compliance with FDA labeling requirements or guidelines did not adequately
apprise oral contraceptive users of inherent risks, the manufacturer should not be
shielded from liability by such compliance.
 “the adequacy of such warnings is measured not only by what is stated, but also
the manner in which it is stated.” : appropriate level of urgency and appropriate
for audience
o Instructions/warnings have to be transmitted in a way calculated to reach the consumer in its
ordinary use of the product
 Mass vaccination: Where downstream product control is extensive, any duty to warn
should attach not to the manufacturer but to the administrator of the program. (Davis)
o CASE: Vassallo v. Baxter Healthcare Corp.: Δ is not liable to warn of risks that were not
reasonably foreseeable at the time of sale, or could not have been discovered by reasonable
testing prior to marketing. (state of the art)
Plaintiff’s Conduct
o comparative negligence rule (Daly)
Federal Preemption
o The Supremacy Clause of the Constitution provides that any federal statute or regulation shall
take precedence over an inconsistent state law.
o Geier: The doctrine of implied preemption can apply in three circumstances: 1) when the state
law is inconsistent with the federal statute; 2)when the federal statute is sufficiently
comprehensive to occupy the field; and 3)when the enforcement of the state law frustrates the
federal scheme.
Damages
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Sullivan v. Old Colony St. Ry.: purpose of damages is compensation, put Π in position she would be in
if tort had not been committed
Pecuniary damages – economic consequences of the injury (medical expenses, lost earnings and cost of
custodial care)
Non-pecuniary damages – damages awarded to compensate an injured person for physical and
emotional consequence of the injury (pain and suffering and loss of enjoyment)
Pain & Suffering
o McDougald v. Garber – to get pain and suffering you have to be minimally aware, pain and
suffering and loss of enjoyment should be considered together
 Belli – have jury break down person’s life into minutes and ask how much pain and
suffering is each minute – not favored
Economic Losses
o O’Shea v. Riverway Towing Co.: lost future wages could be calculated by either (1) taking
inflation out of the wage and the discount rate, or (2) using a higher discount rate based on the
current risk-free interest rate, and applying that rate to an estimate of lost future wages that
includes expected inflation. (Interest rate, salary/wage, work life, and alternative employment –
mitigation – inflation)
o Duncan v. Kansas City Southern Railway (church van, quadriplegic): trier of fact has a lot of
discretion, but reign them in by looking at other courts
Contingency Fees, Fee-shifting devices, sales of tort claims and litigation insurance
o Harding v. Town of Townshend: collateral source rule – fact of this 3rd party compensation
(insurance) should not be something admissible in Π’s tort action
 Subrogation – indemnification plus. Insurance company steps in and sues on Π’s behalf
 Indemnification – if jury award covers things covered by insurance, insurance can get
money from Π
o Lawyers receive contingency for services (1/3 of damages)
 Hourly pay – some can’t afford this; Π pays only if he wins.
 Contingency fees allow Π to have more control over litigation process
Punitive Damages
o Kemezy – Π does not have to present evidence of Δ’s net worth to jury to assess damages
o Punitive damage necessary to make sure that tortious conduct isn’t undeterred.
o Impose these when conduct is reckless and wanton, malicious, reprehensible, or disregard for
harm they will cause
o State Farm Mutual Automobile: de novo review: following three considerations: "(1) the degree
of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or
potential harm suffered by the plaintiff and the punitive damages award; and (3) the
difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases." Court goes on to suggest that "few awards
exceeding a SINGLE-DIGIT RATIO between punitive and compensatory damages ... will satisfy
due process."