INTENTIONAL TORTS
 Must satisfy the 4 elements of a prima facie case
I. Intent
A. Purposeful desire to cause the consequences of an action OR knows/
believes the result is substantially certain to occur
i. Think intent to harm
1. Garrett v. Dailey- D pulls chair from under P as a prank; L
a. Contact with body not necessary
B. Can also be satisfied without intent to harm IF
i. Objectively inappropriate act using the reasonable person
standard OR unlawful act
1. Vosburg v. Putney- student kicks classmate; L
a. Circumstance important for determining objectively
inappropriate
b. CONTRAST: Knight v. Jewett- touch football game;
NL
2. EXCEPTION: Subjective standard is known
C. Transferred Intent
 Must be intent sufficient to make the act a tort in the first place
i. Between people: A intends to commit a tort against B, intent
transfers to any resulting injured party
1. Keel v. Hainline- Eraser throwing students; both liable for
engaging in objectively inappropriate act under
transferred intent; L
ii. Between torts: If D intends to assault P but instead makes
contact, the intent transfers to battery
1. Manning v. Grimsley- baseball player throws ball at fence
to scare heckling fans (assault), ball breaks through and
makes contact resulting in injury (battery); L
2. Bennight v. Western Auto Supply – woman forced to work
where she feared bat infestation (assault); bat bite
(battery); L
D. Incompetency
i. Fact that D is mentally incompetent, insane or a minor does not
preclude a finding that intent existed
1. Polmatier v. Russ- Insane man still possessed the intent to
kill; L
ii. Policy question: Why have this rule?
1. More injustice in denying injured party compensation
2. Gives incentive to family to take care of insane/minors
3. Prevent false claims of insanity
II. CONSENT AS A DEFENSE TO INTENT
 Important in determining objectively inappropriate nature of
act
A. Express words or actions (always)
B. Failure to state lack of consent or implied consent (sometimes)
i. Reasonable person standard
1. Brzoska v. Olson- not barred by idiosyncratic experiences;
HIV+ dentist; NL
2. Cohen v. Smith- unless expressed ex ante; male nurse in
the delivery room; L
a. Werth v. Taylor- exists when unconscious person
needs medical procedure to save their life; Jehovah’s
witness filled out form refusing blood transfusion,
but husband was unclear on refusal; NL
C. Illegal activity
i. Majority Rule (McNeil)- can not consent to a criminal act in order
to bar liability; L
ii. Minority Rule (Hart/ Restatement)- can consent to a criminal act in
order to bar liability; NL
D. Medical Consent
i. Different Procedures
1. Consent doesn’t exist unless emergency or in the course
of consented surgery conditions exist that endanger the
life or health of patient
2. Mohr v. Williams- performed surgery on left ear instead of
right; L
ii. Different Surgeons
1. Consent doesn’t exist unless when given to hospital not
specific doctor, then it may include acts of other
reasonably qualified persons
2. Grabowski v. Quigley- back problem led to foot problem
discovers surgeon was out of town for surgery and
another dr performed; L
iii. Objective Approach (majority rule)
1. Whether a reasonable person would’ve consented to the
surgery if they had been informed of the risks before
hand
iv. Subjective Approach (minority rule)
1. Takes into account specific P and particular operation and
whether they would’ve consented
2. Used in cosmetic surgery cases
3. Argument that patients will always in hindsight say they
would not have consented
E. Fraud
i. Depends on…
1. How invasive of a person’s interest was the fraud?
2. Was there bodily harm or just harm to someone’s dignity?
3. Was the fraud different in kind/ lacking the essential
nature of the offense?
4. Administrability?
5. Social value/ deterrence?
a. Desnick v. ABC – Sent people in posing as patients to
eye centers- NL
b. Neal v. Neal- Wife sued husband for battery b/c she
would not have consented to sex if she had known
he was having an affair; L
ii. Consent not valid when D knows of a mistake of fact (whether
induced or not) and P does not know
iii. If mistake of fact exists, but D doesn’t know, then consent is valid
III. Voluntary Act
 All acts other than convulsions and acts made upon self preservation are
voluntary
o Laidlaw v. Sage- Human shield case; NL
A. Battery
i. (1) An act intending to cause a harmful OR offensive contact with
another OR an imminent apprehension of such a contact AND (2)
an offensive contact directly or indirectly results
1. Harmful- causing physical pain or bodily damage
2. Offensive- damaging to a reasonable sense of dignity
a. Contact beyond level consented to
i. Can be implied from past experiences, words
b. Extends to personal effects
i. Anything closely identified with the body (ie:
hat, clothing)
c. Contact doesn’t actually have to be from D’s body
i. ie: bullets
d. P does not have to be aware of the contact
i. ie: sleeping or unconscious
3. Importance of social cues for objectively offensive
a. White v. University of Idaho- piano teacher touches
student’s back; L
B. Assault
i. (1) An act intending to cause a harmful or offensive contact with
another OR the intent to give rise to the imminent apprehension of
such contact (2) which results in the subjective but reasonable
imminent apprehension of such contact
1. Imminence
a. Future threats are not assault
i. Brower v. Ackerly- threatening phone calls
were too vague; NL
b. Threats that can not be immediately acted upon
from P’s perspective are not assault (DISTINGUISH:
from D’s perspective)
2. Objective standard of reasonable person UNLESS
a. Words alone are usually not enough to constitute
assault
i. Policy reasons
ii. Context is important (think conditional
threats “do this or I’ll kill you” as an
exception)
1. Tuberville v. Savage- After D said that
he wouldn’t attack while judges were
in town, no reasonable expectation of
attack; NL
3. Subjective standard applies when known
a. If a person is known to be particularly timid
i. Langford v. Shu- played prank on skittish
neighbor; L
C. Trespass
i. Regardless of whether harm results, (1) the intentional entering of
the land of another or intentionally causing a thing or 3rd person to
enter the land of another (2) OR remains on the land without a
right to be there (3) OR fails to remove from the land a thing
which he is under a duty to remove
1. Pegg v. Gray – D knew with substantial certainty his dogs
would enter the P’s land which led to cattle stampede and
subsequent broken fence; L
2. Malouf v. Dallas- Golf balls from country club struck P’s
car, D had no knowledge with substantial certainty; NL
ii. Entry must be voluntary [INTENT is important for trespass]
1. Liability for mistake of trespass
2. No liability for accident (pushed onto land) or if trespass
was induced by landowner
D. False Imprisonment
i. (1) Intentional confinement of another or a 3rd person within
boundaries fixed by the actor (2) whose act directly or indirectly
results in the confinement AND (3) the other is conscious of the
confinement or harmed by it
1. Peterson v. Sorlien- D brought daughter (P) to a cult
deprogrammer, she passed up opportunities to escape;
NL
2. Eilers v. Coy- P made multiple attempts to escape
deprogramming; L
E. Intentional Infliction of Emotional Distress (IIED)
i. Intentional or reckless infliction by extreme or outrageous
conduct of severe emotional or mental distress
1. Roberts v. Saylor- Dr’s poor bedside manner insulting a
patient before surgery was only mere insults; NL
ii. Intent transfers only when: immediate family member is present
for the act whether or not the P is harmed OR to any other person
who is present IFF harm results
iii. Importance of special relationship, subjective knowledge, context
and social value (occasionally domestic violence)
1. Figueiredo v. Nickel- Psychiatrist/marriage counselor
encouraged divorce while having a relationship with P’s
wife; L
2. Pemberton v. Bethlehem Steel- Subjective knowledge of P’s
character among those who received mug shots
information of P’s wife’s affair; NL
3. Muratore v. M/S Scotia Cruise- Cruise members taunted P
with warning of her dislike while she was trapped on
boat; L
4. Feltmeir v. Feltmeir- D beats wife (P) for years and in
front of children; L
IV. PRIVILEGES AS A DEFENSE TO A VOLUNTARY ACT
A. Defense of person and property
i. Must reasonably believe force is necessary for protection
1. Because D is fearful of bodily harm
ii. Must act proportionally
1. No duty to retreat in your home
2. Duty to retreat in public
3. Duty to exhaust reasonable measures first
a. Hull v. Scruggs-egg sucking dog kept coming on to
D’s property, given privilege to shoot because other
reasonable measures were taken first; NL
iii. Cannot do indirectly what you cannot do directly
1. Katko v. Briney- mechanical spring gun; L
iv. The Single Owner Principle (defense of property theory)
1. Kershaw v. McKown- D killed dog attacking goat, therefore
liable for killing dog as it was worth more than goat; L
B. Private Necessity (incomplete privilege- always pay rule)
i. Threat comes from elsewhere not the injured party (P)
ii. D is privileged to commit an act which would otherwise be
trespass if the act is (or reasonably believed to be) necessary to
protect the person/property from serious harm
1. Even if privileged, still liable for damages
a. Vincent v. Lake Erie Trans. Co. – D moored to P’s
dock to unload cargo, storm prevented him from
leaving causing damage to dock; privileged but must
pay for damage
iii. Owner of private property has no right to resist when other party
is privileged
1. Proof v. Putnam- P moored his shop to D’s dock, D’s
servant unmoored when P had necessity, boat destroyed;
L
2. Texas v. Midland Ry. Co.- D kicked P out into the rain b/c
train station was closing when P had necessity, P got cold;
L
iv. Privilege only exists when there is no alternative
1. London Borough v. Williams- Necessity not afforded for
squatters in unoccupied house; NL
a. Public policy/ administrability concerns
C. Public Necessity (complete privilege- never pay rule)
i. Privilege exists where interference with the property of another is
necessary or reasonably appears necessary to prevent public
disaster
1. Mouse’s case- D threw cargo off ship to prevent it from
sinking; NL
V. Causation
A. D’s act or a force set in motion by that act must cause P’s injury
VI. Damages
A. Eggshell plaintiff rule- responsible for all damages whether or not
foreseeable; take the P as they are
B. Nominal damages
NEGLIGENCE
 Generally: Did D take a reasonable precaution against harm that
occurred?
I. Duty
A. Sources of Duty
i. Affirmative acts- law imposes a duty because the act creates risk
for others
1. Misfeasance v. Nonfeasance
a. Yania v. Bigan – goaded man into jumping into
water; NL
b. Weirum v. RKO Radio- D encouraged teens to drive
recklessly for contest injured 3rd party driver; L
c. Not mere words unless reasonable reliance, look to
nature of the injured party as well (the goaded party
or 3rd party)
2. Blocking Rescue
a. Duty exists to get out of the way when injured party
is easily identifiable & there is an immediate threat
of danger
b. Globe v. New York- Train blocked trucks from
stopping fire when it could’ve easily stopped; L
c. Soldano v. O’Daniels- Business (while open to the
public) didn’t let someone use phone to report a
man being threatened with murder; L
ii. Special relationship
1. Duty to Rescue
a. Only exists with special relationship not general rule
i. Trans-Pacific Fishing Co- Captain didn’t
attempt to rescue sailors when duty existed;
L
b. Must use due care if you choose to undertake a
rescue even if no SR exists prior
i. US v. Lawter- coast guard dropped woman
during rescue; L
ii. Frank v. US- husband fell off boat being
tugged by coast guard, only undertook tow
not rescue; NL
c. Medical professional
i. Hurley v. Eddingfield- not required to treat all
patients; NL
ii. O’Neill – doctor who has already undertaken
exam can not abandon (reasonable reliance
on medical advice); L
2. Common Carriers
a. Brosnahan v. Western Air- airline didn’t have enough
attendants so passenger dropped luggage on P’s
head; L
3. Social Hosts
a. Not liable under common law and depends on
jurisdiction as laws avoiding liability are often
passed
i. Charles- D not liable for serving alcohol to
party guest who died driving home
ii. Kelley (minority) – host liable for drunken
guest who crashed with 3rd party
4. Duties to protect others from 3rd parties
a. Doctor/Patient
i. Tarasoff v. Regents U of Cal- P was murdered
by a patient of D who confided he intended to
kill her, D didn’t warn her/ family; L
1. Only applies when specific victim
known
2. Must be forseeable
b. Police & Citizen
i. Riss v. City of NY- P broke up with man who
threatened her, reported to police, attacked
her; NL
ii. Schuster v. City of NY- man collaborates with
city to catch someone, threatened, reports,
attacked; L
c. Landlord/ Tenant
i. Kline v. 1500 Mass- didn’t inform tenant or
enact safety measures following multiple
assaults/ break-ins; L
iii. Land occupancy
1. Trespassers
a. Generally no duty to trespassers (people invited can
become trespassers if they fail to stay within scope
of invitation)
i. Haskins v. Grybko- D hunting woodchucks,
kills trespasser; NL
b. Exception: discovered/ anticipated trespassers;
owner has duty to warn of artificial dangerous
conditions
i. Herrick- D accidentally hit P in the eye with
firework while P was a known trespasser; L
2. Licensees
a. = a person who has the owners consent to be on the
property, but is not there for business purposes
(social guest)
b. Duty of reasonable care and…
i. Must warn of known dangers (that are not
open and obvious), including natural
conditions
ii. emergency personnel are considered invitees
c. Lordi v. Spiotta- D knew gas could’ve accidentally
been on, P died after explosion from striking a
match; L
d. Davies- father-in-law did not know of sealed furnace
which leaked carbon monoxide; NL
3. Invitees
a. Public invitee- person invited to enter or remain on
land for a purpose which the land is held open to
public
b. Business visitor- person who is invited to enter or
remain on land for a purpose directly or indirectly
connected with business dealing with land owner
c. Duty of reasonable care and…
i. duty to inspect for hidden dangers
ii. duty to remedy these dangers
iii. duty to exercise reasonable control over 3rd
persons on premises
iv. Non-emergency public employees normally
treated as invitees
d. Jacobsma- P shopping in D’s store as man robs and
flees, employee yells “stop thief”, P stopped the man
and was injured; L
B. Limits on Duty
i. Pure Economic harm
1. If P doesn’t suffer any property or physical damage, there
is no recovery [even if other elements are met]
a. Madison Ave. Gourmet Foods- D’s building
negligently collapsed causing multiple P’s to shut
down and lose business; NL
2. Exceptions: (1) close proximity of business (2) type of
person, number of persons, obvious nature of business
(3) D’s actual knowledge/ expecatation of injury
a. Newlin- P owned mushroom factory which lost
power due to D’s negligent maintenance of
telephone pole destroying mushrooms;L
i. may be minimal physical damage- power loss
b. People Express Airlines – Fire at D’s railyard caused
airport to shut down; proximity, D knew of risk;
forseeability—social value of airport; L
ii. Emotional harm (Negligent Infliction of Emotional Distress)
1. Zone of Danger Rule (majority)- If in immediate zone of
danger and fright manifests into a physical injury
proximately caused by D’s negligence, there can be
recovery
a. Robb v. Penn RR Co- negligently maintained RR
caused P’s car to get stuck, barely escaped death by
train, then couldn’t nurse her child, difficulty
working; L
2. Impact Rule (minority): No NIED if there is no impact
resulting in physical injury; If fright alone is not a cause of
action, the consequences of fright aren’t either
II. Breach
 Did D breach duty (if it exists) by failing to use reasonable care?
 If P wants to recover must show D owed a duty and did not use due care
(take reasonable precaution)
A. Reasonable person standard
i. Rest. 283: Unless the actor is a child, the standard of conduct to
which he must conform to avoid being negligent is that of a
reasonable man under the circumstances
ii. Physical characteristics
1. Standard of care raised for added abilities (ie: super
strength)
2. Standard of care must conform to that of a reasonable
person with a similar disability
a. Kerr v. Connecticut Co- Deaf man (P) didn’t take
precautions a deaf person should, hit by train; NL
b. Davis v. Feinstein- blind man took precautions, using
a cane, still fell through cellar door, but not
contributory negligence; L
iii. Mental Characteristics
1. Usually not taken into account for adjusting reasonable
person standard UNLESS D was aware of P’s mental
condition
a. Vaughan v. Menlove- D’s fire near P’s property
spread due to D’s stupidity in failing to take
precaution; L
b. Lynch v. Rosenthal- D had mentally challenged P
operate machinery without proper warning
knowing P was mentally challenged; L
c. Wiers v. Jones County- P couldn’t read English went
over unsafe bridge, despite posted sign; NL
iv. Religion
1. Freedman v. State- P, jewish girl, jumped from chairlift,
reasonable; L
v. Professionals
1. generally held to higher standard
a. Fredericks v. Castora- P hit by professional driver,
but no higher standard b/c everyone drives; NL
vi. Age
1. children held to standard of care of their age, intelligence,
experience
a. Purtle v. Shelton- Teenage D shot teenage P while
hunting, hunting is not an adult activity; NL
2. EXCEPTION: activities that are (a)abnormally dangerous
and (b) typically engaged in by adults
a. Dellwo v. Pearson- 12 yo D hurt P, held to an adult
standard bc he was engaging in an adult activity
(driving); L
vii. Insanity/ mental deficiency
1. Not usually an exception unless D becomes insane in the
process of acting with due care
a. Williams v. Hays- D, ship captain, stayed up to save
ship went insane, ship crashed; NL
viii. Gender
1. Women held to the same standard as man
B. Measuring Breach: Hand Formula
i. B> P*L = Not negligent; B<P *L = Negligent
ii. Marginal Cost analysis
iii. US v. Carroll Towing Co. – D’s burden of having bargee on board
(not taking precaution) was lower than the probability of the
expected loss times the actual loss
iv. Eckert v. LIRR- P tried to save child, did, but died himself. P was
not reckless, therefore no negligence is saving life. Hand analysis:
B (saving child’s life; high b/c it happened) > P (likelihood of P’s
injury) * (P’s death)
C. Measuring Breach: Custom (not determinative)
i. TJ Hopper- D’s tugboat lost cargo in a storm they didn’t know
about b/c of not having radios. While radio’s weren’t custom, the
burden was low and the risk high; therefore L
ii. Medical malpractice
1. national standard of care (majority rule)
D. Measuring Breach: Negligence Per Se
 NOTE: still must first owe a duty!
i. STATUTE: IF D violates a statute that is (1) designed to protect
against the type of person injured (2) designed to prevent that
type of injury (3) proportional to the nature of the offense and (4)
sets the standard of care for this injury THEN breach has been
determined as a matter of course.
1. Martin v. Herzog- P driving at night without lights on
caused accident; L under negligence per se
ii. Exceptions: breaking the law is more safe and reasonable
ignorance
a. Tedla v. Ellman- P walking on wrong side of the road
according to law but was actually safer according to
custom/ traffic patterns; NL
iii. JUDGE MADE RULE:
1. Negligence per se only applies under a judge made rule if
it is obviously safer (don’t fall asleep while driving) and
not context dependent
E. Measuring Breach: Res Ipsa Loquitur
i. To prove negligence when (1) there is no direct evidence available
as to D’s conduct (2) the event is one that likely would not occur
without negligence and (3) the instrument which caused the
negligence was in the D’s exclusive control
1. shifts burden of proof to D to prove due care
2. Byrne v. Boadle- Barrel of flower fell from D’s business
onto P’s head; L
3. Ybarra v. Spangard- P awoke from appendix surgery with
shoulder pain, allowed to proceed to jury on matter of
fact
a. information forcing
b. pocket of immunity
III. Causation
A. Factual
i. Traditional “but for” causation
1. More likely than not (greater than 50% of the time) that
the precaution would’ve made a difference
a. NY Central RR v. Grimstad- P can’t swim and falls off
D’s boat, dies. Wife sues for negligently failing to
provide lifesaving equipment; NL—can’t decide
what would’ve happened had it been on board
ii. Exception: Pocket of Immunity/ Recurring Miss
1. Gardner v. Bulk Carriers- P, a seaman, aboard D’s vessel
was found missing; D didn’t turn around to look for him; L
2. Haft v. Lone Palm Hotel – P’s son and husband died in D’s
pool, violated statute failing to provide lifeguard signage;
L
iii. Exception: Loss of a Chance
1. Only willing to apply when statistical evidence is available
2. Herskovits v. Group Health- P brought wrongful death suit
against D for failing to make earlier diagnosis of cancer,
chance of survival went from 39% to 25% (36%
reduction); can recover the difference
iv. Alternative Liability
1. Divisible harm: 2 breaching defendants; 1 cause
a. 2 parties acting negligent simultaneously, both can
be found liable for whole damage even though only
one caused the harm; shifts burden of proof to D’s
b. Summers v. Tice- Both D’s shot in P’s direction while
hunting, P hit and injured; BOTH L
2. Single Indivisible harm from 2 different parties:
Concurrent Causes
a. Each of 2 negligent events is sufficient to cause
injury but the actual cause is unknown
b. Kingston v. Chicago- D negligently caused fire,
combined with another of unknown origin,
destroyed P’s property; D liable for all damages
3. Market Share Liability
a. All named D’s are potential tortfeasors
b. Identical products
c. P unable to identify which D caused injury through
no fault of her own
d. Substantial share of the Market
e. Sindell v. Abbott- DES pill caused birth defects to
children of women who took the pill; Market share
liability
B. Proximate
i. Forseeability- D is only liable for consequences that were
reasonably foreseeable at the time he acted
1. NOT exact developments
2. Same general sort of damage
3. Same forces causing damage
a. Kingsman- Negligently maintained dead man caused
boat to come loose and strike other boats; L
b. Palsgraf- Man boarding train drops package of
fireworks which explodes, injuring P not in the
“zone of danger”; NL
c. Doughty- employee knocked cover into cauldron,
which then exploded; NL
ii. Superseding Cause- D is liable for any foreseeable damage caused
by a 3rd party after D’s original negligence caused injury
1. Brauer v. NY Central Co-D’s train negligently collided with
P’s wagon, P’s things were stolen, D held liable for stolen
goods
2. Scott v. Shepard- D threw a firework (squib) into a crowd,
was subsequently thrown again, first thrower L as was
foreseeable others would throw again
3. Alexander- P sued D for negligently failing to close a pit
after being thrown in by another person; NL [intentional
tort that wasn’t foreseeable]
IV. Damages
A. Eggshell Plaintiff Rule
B. Always reduce for loss of a chance (uncertain life prospects)
C. Must be actual damages
V. Defenses
A. Contributory Negligence
i. Any P who is negligent and whose negligence contributes
proximately to his injury is barred from recovery
B. Comparative Negligence
i. Modified [majority]
1. P can recover as long as not more liable than D (50% or
less)
ii. 49 percent rule [minority]
1. P can recover as long as not more than 49% liable
iii. Pure [ASSUME ON EXAM]
1. P can recover whatever % of DAMAGES D is responsible
for, even if P was more liable than D was (ex- D is 30%
liable, P is 70% liable, P recovers 30% of damages)
C. Assumption of Risk
i. Express assumption of risk
1. P explicitly agreed with D, in advance of any harm, that P
will not hold D liable for certain types of harm
a. Typically a complete defense
2. Exceptions:
a. Unconscionable contracts or agreements against
public policy
b. Tunkl Test
i. “Essential” nature of service
ii. Bargaining power between parties: did P
have a choice?
iii. Does P then submit to control of D?
c. Contract indicia
i. Did P understand contract?
ii. Did text specifically cover injury?
ii. Primary assumption of risk
1. Doctrine that prevents P’s from recovering for injuries
they suffer when they freely undertake dangerous
activities
a. Murphy v. Steeplechase Amusement- P injured while
riding the “Flopper” at D’s amusement park, saw
people fall off, thus risk was invited and forseen; NL
2. Even if P assumes risk, if D increases risk in an
unforeseen or non-agreed to way, D is liable
STRICT LIABILITY
I. Doing a certain activity that creates liability regardless of intent or negligence
where (1) the risk is great, (2) the likelihood of risk creating injury is high and
(3) use of reasonable care doesn’t negate or diminish the risk
A. Dangerous animals
i. Uncontrolled wild animals
ii. Notice of viciousness (one bite rule)
1. Behrens- elephant trampled midget; SL
B. Abnormally dangerous activities
i. Existence of a high risk of harm
ii. Likelihood that harm will be great
iii. Inability to eliminate risk by reasonable care
iv. Activity is not common usage
v. Activity is inappropriate for the location where it took place
vi. Social value is not sufficient to offset the risk
1. Indiana Harbor RR v. Am. Cyanide Co. – D loaded
chemicals in RR car and chemicals leaked onto P’s RR
line; NL
a. due care could’ve prevented accident
b. chemical was not inherently dangerous
c. couldn’t change location
d. social value in transporting by train
C. Respondeat Superior
i. Employer is strictly liable for the torts committed by its
employees when…
1. Conduct is of the kind he is expected to perform
2. It occurs within authorized time/space
3. It is actuated by a purpose to serve employer
4. Force is intentionally used by the employee and the
force is not unexpected by the employer
a. Bushey v. US- D, drunk sailor, returned to
drydock and messed with it causing damage; L
b. Miller v. Reiman- D took work break and drove to
bank, got in car accident; NL b/c personal errand
ii. Exceptions:
1. Independent contractors
2. Intentional torts
a. SEE 4 above!
II. Causation
A. Factual
B. Proximate
III. Damages
PRODUCTS LIABILITY
I. Defective Product
A. Manufacturing Defect- Strict Liability
i. A defect that occurs when something went wrong during
the manufacturing process
ii. Top down liability: manufacturer, distributor, seller
iii. Proof of specific defect not required when the injury:
1. is the kind that would ordinary occur because of a
defect (similar to Res Ipsa) AND
2. some portion of the injury can be traced back to
the defect
iv. Escola v. Coca Cola- P was injured when bottle of Coke
broke in her hand due to too much pressure, policy- no
inspection-> SL to deter defective products, loss spreading,
best cost absorber; L
B. Design Defects- Negligence
i. Risk/ Utility Test
1. Compares policy between product/ alternative
2. Loss spreading
3. Cost avoider
4. Fairness
5. Manufacturer could reasonably anticipate but no
one else could know/ avoid
6. Availability of a substitute
ii. Volkswagen- Design risks were obvious & change would
cause the utility of the vehicle to diminish; NL
C. Failure to Warn- Neligence
i. Risk must be unknown and foreseeable
ii. “Common knowledge”—known so generally no need to
warn
iii.
II. Causation
A. Question of fact for the jury: was the defect introduced while in the
consumer’s possession?
B. For warning: would P have heeded a warning?
i. Heeding presumption:
1. objective- what would reasonable person do?
2. subjective- what would this person do?
III. Damages
IV. Defenses- Comparative/ AOR