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TORTS OUTLINE – Gomez-Arrostegui – Fall 2011
A. PRINCILES
I.
II.
III.
What is a Tort? -- a civil wrong, arising from a breach of duty imposed outside of a
contractual obligation,* for which the law provides a remedy
Three major classes of torts:
a. Intentional/Fault required
b. Negligence/Fault required
c. Strict Liability/No fault required
Sources of duties under tort law:
a. Corrective justice: aim or tort law to hold Ds liable for harms they wrongfully
cause and no others; liability imposed when Ds hurt someone else, & if it’s the
“right & moral” thing to do to, regardless of whether liability yields social good;
wrongdoer should compensate P to put accounts right between the parties
b. Distributive justice: tort liability should be expansive to secure compensation
for injured persons; some Ds should be liable for harm they cause regardless of
fault b/c they can distribute costs to recoup losses from liability (ex. by raising
prices); liability supposed to be good for society as a whole
i. strict liability: party held accountable for wrongdoing even if they did
not act intentionally AND exercised reasonable care in preventing
wrong
1. products liability: manufacturer held liable for any injury
product causes, even if manufacturer acted w/ car & did not
intend to cause harm
2. respondiac superior: employers liable for torts employees
commit within scope of their employment, even if employer’s
policy aimed to prevent employee’s wrong b/c employer better
equipped than employees to handle losses from liability
c. Deterrence: aim of tort law to deter conduct by imposing liability when that
tortious conduct causes harm, as preventative measure
d. Process: tort rules should be made to actually work in real world, be pragmatic
for judges, lawyers, juries to understand & apply
i. Rule: specifically sets standard of care – easy to apply (ex. Do not
exceed speed limit)
ii. Standard: broad, difficult to apply (ex. “Drive at safe speed relative to
traffic conditions.”)
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B. INTENTIONAL TORTS
1) BATTERY - A P must demonstrate both the intent and action/result elements.
I. INTENT: P must intend [A] OR [B]:
[A]
To [1] cause a contact with the P [2] that is harmful or offensive; OR
SINGLE INTENT = [1] only; DUAL INTENT = [1] + [2]
[1].
[2].
The intent to contact is satisfied if the D either:
[a].
Desires to cause the contact; OR
-[maybe only avenue for particulate matter cases – smoking,
int’l exposure to loud music]
[b].
Knows with substantial certainty that the contact will occur.
An intent to cause a contact that is [a] harmful OR [b] offensive is shown if the
D either:
[a].
Desires to harm, OR is substantially certain the contact will harm, the P;
OR
[i].
[b].
For the definition of harm, see below.
Desires to offend, OR is substantially certain the contact will offend a
reasonable sense of personal dignity (i.e. it would be offensive to an
ordinary, reasonable person under the circumstances.)
[i].
For the definition of offensive, see below.
[B] To put the P OR a 3rd person in imminent apprehension of such contact.
[1] The intent is satisfied if the D:
[a] desires to cause the apprehension; or
[b] knows w/ substantial certainty that the apprehension will result.
II.
ACTION/RESULT: The D must actually [1] cause the contact to result and [2] the
contact must be harmful or offensive.
[1].
The D can cause the contact either directly OR indirectly.
[2].
An actual contact must occur with the P’s body OR with items closely associated
with the Ps body or personhood.
[3].
The contact must be [a] harmful or [b] offensive; [and [c] tangible?].
….CONTD p. 3…..
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[a].
A contact is harmful if it is a physical impairment of the condition of the
P’s body, including physical injury, illness, or death.
[b].
A contact is offensive if it would offend a reasonable sense of personal
dignity, i.e., it must be one which would offend the ordinary person and
as such one not unduly sensitive as to his personal dignity.
[i].
Exception: If the contact would not offend a reasonable person’s
sense of personal dignity, and the P is simply hypersensitive, the
contact nevertheless becomes “offensive” if the D is aware of the
P’s hypersensitivity.
2) ASSAULT –
[1] INTENT REQUIREMENT; AND
Intent to put the P OR a 3rd person in imminent apprehension of [1] contact that is [2] harmful
or offensive contact. ( DUAL INTENT = [1] + [2] ) AND [3][a] actual AND [b] reasonable
imminent apprehension of contact that is harmful or offensive contact results.
The intent is satisfied if D: [establish both simultaneously just by addressing [2] ]
[1] intends to put P or 3rd party in imminent apprehension of contact- est. by either:
[a] D desires to cause the apprehension of contact; or
[b] knows w/ substantial certainty that the apprehension of contact will result;
AND
[2] intends to put P or 3rd party in imminent apprehension of contact that is harmful or
offensive
[a] D desires to cause apprehension of contact that is harmful or offensive; or
[b] D knows w/ substantial certainty that the apprehension of harmful or
offensive contact will result;
-If D’s act seems threatening, but threat is countered by words, may negate intent
element. (Ex. “If cop weren’t here, I’d punch you.” )
[2] ACTION/ RESULT
[1] P must [a] actually and [b] reasonably apprehend an imminent harmful or offensive
contact.
[3] Assault Definitions
[a] apprehension: awareness of an imminent touching that would be a battery if
completed.
[b] imminent: no significant delay (as opp. to immediate)
[c] harmful, offensive: See II(3) under Battery above)
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3) FALSE IMPRISONMENT
[SINGLE INTENT – just intend to confine, NOT intent to confine wrongfully]
(1) An actor is subject to liability to another for F.I. if:
a. He acts intending to confine* the other OR a 3rd person within boundaries fixed
by the actor; AND
b. His act directly or indirectly results in such a confinement of the other; AND
c. The other is conscious of the confinement OR is harmed by it
* F.I. is a continuing tort. For every min. person/P confined, new tort created for each time
increment. This means “intent to confine” is not limited to actor’s mindset at time confinement
actually occurred, but rather it extends throughout duration of the confinement
 What constitutes “confinement?”
(1) to make the actor liable for F.I., the other’s confinement within the boundaries fixed by
the actor must be complete – fact sensitive
a. Doesn’t necc. mean phys. boundaries
b. Ex. someone steal’s P’s wallet – they in effect are confined, can’t leave without it
c. Ex. 2 someone steals P’s clothes while they’re in dressing room; in effect they’re
confined
(2) The confinement is complete although [even if] there is a reasonable means of escape,
UNLESS the other knows of it --– fact sensitive
a. Ex. open window on 17th floor is NOT “reasonable” means of escape
b. Ex. 2- first floor open window on 1st floor may be “reasonable” means of escape
for me, but not for 80-yr. old
(3) The actor does not become liable for F.I. by intentionally preventing another from going
in a particular direction in which he has a right or privilege to go.
Intentional Torts To Property: TTL, TTC, Conversion
4) TRESPASS TO LAND
-Basic rule: When D [1] intentionally [2] enters land possessed by P w/o consent.
- single intent – intent to enter land ONLY
-Transferred intent APPLIES
5) TRESPASS TO CHATTLES
RST §217: Ways of Committing TTC:
A trespass to chattel may be committed by intentionally:*
 (a) dispossessing another of the chattel, OR
 (b) using or intermeddling with a chattel in the possession of another

*Intentionally = SINGLE INTENT (just intent to do (a) or (b), not intent to do it
wrongfully will fulfill p.f. case)
o desire to do (a) or (b) OR
o knowledge w/ substantial certainty that (a) or (b) will result.
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RST §218: Liability to Person in Possession – One who commits a TTC is subject to liability to
the possessor of the chattel if, but only if:
 a. Actor dispossess another of the chattel; OR
 b. the chattel is impaired as to its condition, quality, or value; OR
 c. Possessor is deprived of use of chattel for a substantial time; OR
 d. Bodily harm is caused to the possessor*, OR
 e. Harm is caused to some person or thing in which the possessor has a legally protected
interest [ex. business goodwill and reputation]

TTC - Contrast w/ conversion (See 6) below)
o Less serious interference w/ chattel than conversion
o Remedy: actual damages = orig. price – what it’s worth after TTC occurs
o P who can successfully bring TTC claim cannot also bring more severe claim of
conversion.
o Transferred intent applies (see below)

Intangible, electronic activities by D (i.e. spam mail attacking P’s computer equipment)
can be actionable as TTC tort.
6) CONVERSION
RST §222A: what constitutes conversion:
(1) Conversion is an [2] intentional [3] exercise of dominion or control over a chattel [3]
which so seriously interferes w/ the right of another to control it that the actor may justly
be required to pay the full value of the chattel.
a. Like TTC, also SINGLE INTENT – D doesn’t have to intend to exercise
dominion or control over P’s chattel which so seriously interferes w/ P’s ability
to control it wrongfully – just the first part.
(2) In determining the seriousness of the interference and the justice of requiring the actor
to pay the full price, the following factors are important:
o (a) Extent & duration of D’s exercise of dominion or control (b) D’s intent to
assert a right to the property
o (c) D’s good faith
o (d) extent & duration of the resulting interference w/ the other’s right of control;
o (e) the harm done to the chattel
o (f) Expense or inconvenienced for P caused

Contrast w/ TTC:
o More serious interference w/ P’s chattel than TTC.
o Remedy: can be much higher than actual damages – can be full value of
converted chattel (or replevin - return of chattel itself)
o P who can successfully bring conversion claim can by default also claim less
severe TTC
o Intent to convert NOT transferrable


Information (intangible property) can be converted (ex. domain name, lit. works)
All conversion claims can also be brought as TTC claims.
Other points Intent. Torts:
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Transf. intent - applies to all intentional torts except conversion:
o Battery
o Assault
o False Imprisonment
o Trespass to chattels
o Trespass to land
Child liability for intentional torts
o Most states recognize that children may be liable for torts they commit, as long
as injured P can prove required elements, incl. intent
o Some states: very young children presumed to be incapable of harmful intent
o Parents NOT vicariously liable for torts of their children just by virtue of being
their parents.
Thin skull rule – applies to intentional torts
o Assuming D satisfies each element of the intentional tort…
o If harm to P was way more extensive than D could’ve imagined (considering P’s
preexisting med. condition, or high value of P’s damaged chattle) , D still liable
for entire extent of P’s harm b/c extent of P’s harm
o
Defenses to Intentional Torts

Intro: affirmative defenses vs. prima facie
o Prima facie case: things P has burden of proof to prove at trial.
o Affirmative defense: things D has burden of proof to prove at trial (see handout)
 (Additionally, D can attack P on basis that P did not address all elements
of claim)
1) SELF-DEFENSE (AND DEFENSE OF OTHERS/3rd persons)
Overview - D may intentionally:
1. use force against another person [batter] (P)
2. cause an apprehension of imminent harmful or offensive contact to another person
[assault] (P); OR
3. imprison or confine another person [falsely imprison] (P)
I. When Privilege is triggered:
IF D actually AND reasonably believe that the other person (P) is intentionally or negligently
either:
1. Imminently going to cause a harmful or offensive contact [battery] to yourself OR a 3rd
person; OR
2. Imminently going to confine or imprison [F.I.] your self OR a 3rd person
II. Force that may be used:
 You may only use an amount of force /confinement that is reasonably necessary to
prevent or repel the impending contact or confinement.
o Exception - You may threaten to use (but NOT actually use) amt. of force or
confinement that would exceed what is reasonably necessary (as long as you lack
tortuous intent & there’s no transferred tortious intent)
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III. When Retreat Necessary: In some cases, if a safe and reasonable retreat is available, you
must retreat, rather than stand and defend yourself.
1. If the impending threat is one that would not—in the mind of a reasonable person—cause
death OR serious bodily injury:
 you may stand your ground and defend yourself with whatever is permitted under §II
above;
 you are not obligated to use a safe and reasonable retreat
2. If impending threat is one that could cause death OR serious bodily injury—in the mind of a
reasonable person—and there is a safe and reasonable retreat available, then:
a. In most jurisdics., you must:
i. Use that escape; OR
ii. Limit your actions to threats intended to cause apprehension [assault],
see II exception above; OR
iii. Limit your use of actual force or confinement to something less than that
intended or likely to cause death or serious bodily harm
1. Exception to a.: Unless you are in your home, in which case you
may use force or confinement intended OR likely to cause death
or serious bodily harm.
b. In some “frontier” jurisdics., you may stand your ground and defend yourself and
use force or confinement intended OR likely to cause death or serious bodily
harm.
2) DEFENSE OF PROPERTY
 No self-def. privilege to use force to cause serious bodily injury or death against intruder
to protect property if intrusion didn’t threaten death or serious bodily harm to occupiers
o Exception: Property owner can defend property w/ force i.e. batter as long as it’s
less serious than threatening serious bodily harm
o Exception: Threat to use force that would cause serious bodily harm/kill OK.
o Policy basis: Value of trespasser’s “life and limb” outweighs interest of
“possessor of land”
 App. of Transferred intent
o D privileged to use threat of force for serious bodily harm to defend property
against intruders he’s aware of.
o Since D’s threat of force for serious bodily harm was privileged, no tortuous
intent (to assault known intruders).
o Therefore no transferred intent from assault to battery from known intruders to
unknown intruder P, who is actually injured from what D intended as mere threat.
3) CONSENT
1. Express or Apparent
a. Expressed: Orally or in writing
b. Apparent: reasonable person would assume there’s consent (based on
context/surrounding circumsts.)
2. Is consent better suited as affirmative defense or element of P’s prima facie case?
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
Consent may be better suited for P’s prima facie case of battery (where burden of proof
on P), not affirmative defense (where burden on D)
a.
3. Negated by:
a. Incapacity
i. Legal incapacity – i.e. prisoner (P) / corrections guard (D) sexual
relationship; given inherent power imbalance of this “special relationship”
recognized by law, prisoner’s consent to relationship not valid defense
ii. Mental incapacity (adults) –usually established only by showing adult did not
understand the nature and character of the act consented to
iii. Minors
1. Even if minor consents to something, invalid
2. Exception: generally minors can consent to a number of touchings
appropriate to their age.
3.
b. Duress
i. Phys. duress – consent procured under phys. threat is invalid.
ii. Econ. duress1. Generally doesn’t negate consent
2. ex. fed. statutes against employment discrim. forbid employers’
sexual harassment of employees, who depend on employer for job,
wage increase, promotion
c. Exceeded consent
i. Ex. “Medical battery” - P, patient, consents to contact only on specific
condition or only on specific body part & D, doctor, exceeds scope of that
consent by either violating condition or operating on part of body beyond
patient’s consent
ii. Also applies in any context when party (P) gives consent to touching in one
way but D exceeds that consent (ex. groping when P only consented to
kissing)
iii. Exception: Emergencies  Implied consent
d. Fraud
i. Consent procured by fraud is no consent.
e. Revoked consent
i. P can revoke consent at any time by communicating revocation to D.
4) NECESSITY [Public & Private]
Public Necessity - Privilege triggered:
 Govt. entity OR private person may commit an act which would otherwise constitute a
TTL, TTC, or Conversion of the private property interests of another if:
1. It’s effort to prevent an imminent disaster affecting real or personal
property OR persons. . .(AND)
2. to the “community” [ public at large or large group of people] . . . (AND)
3. action you take is REASONABLE.

Effects of this privilege
*D doesn’t have to pay for damage to individual
o Trumps property owner’s ordinary privilege to defend own property (subject to
exceptions, see above under defense of property)
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o

At C.L.,
 Public necessity is complete defense, for govt. entity.
 Private persons can also use public necessity defense if actions are
reasonable
 this principle modified or completely trumped by constitution or statute
today in some jurisdictions,
Public Neccessity policy rationale- debate o (In context of Surrocco- mayor’s decision to burn down one house to save whole
town)
 Doctrine prioritizes corrective justice > distributive justice
 Although it’s city better equipped to deal w/ liability, & holding city
liable would be “fair,” ct. finds that city not liable to P, whose house it
burned to save town
 It’s “the right thing” for mayor to be shielded from liability b/c his act of
burning down house of 1 to save many people’s homes was act for public
interest; his tortuousness canceled out by his “good faith”
o Other jurisdics. have rejected public necc. defense based on prioritization of
distributive justice > corrective justice
Private Neccessity




If D’s interference w/ or destruction of P’s property (TTC, TTL, conversion) for
private purpose (i.e. self-preservation) were part of unavoidable accident or
disaster prevention, D’s private necessity defense applies & property destruction
is privileged….
But D must pay for the damage
[i.e. hiker about to die in cold privileged to commit TTC and enter cabin to save
his life],
Policy
o Corrective justice: if D damaged P’s property under reasonable violation of
TTL/TTC, “it’s the right thing” for D to pay for it.
C. NEGLIGENCE
A. PRIMA FACIE CASE
Plaintiff bears the burden of proof on the following elements of the prima-facie case.
I.
Duty:
Overview: The issues of whether:
 [1] D’s duty exists and, if so,
 [2] what the applicable standard or duty of care is
 Both issues are generally legal determinations for the judge only:
[1]
Whether D owes a legal duty to P; this is a binary issue, “yes or no.”
[a].
Always yes. . . unless…
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[b]
UNLESS a special no-duty rule applies:
i. D has no duty to prevent risks inherent risks of activity
 Ex. sports players & spectators
 [see implied assumption of the risk under Defenses]
ii. Child (P) owes no duty to protect herself against sexual abuse from an adult
[In context of contrib.. negl. ]
iii. Lessors Trad. Rule, Exceptions, and Discarding Trad. Rule:
1. Lessors owe no duty to their own tenants and the tenant’s guests [i.e.,
licensees and invitees] resulting from defects on the premises .
2.
3.
Exceptions which impose a duty to act with reasonable care
toward tenants & tenant’s guests:
a.
If the landlord has contracted to repair defects, and
landlord learns about the defect;
- Ex. If had tenant reported defect a month ago
& landlord failed to fix it, landlord would owe
duty of reasonable care .
b.
If the landlord knows or has reason to know that a defect
exists at the time the tenant takes possession;
c.
If the premises are specifically leased for public use;
d.
If the premises are retained in the landlord’s control;
e.
If the landlord repairs something on the premises.
Discarding the Traditional Lessor no-duty to tenants Rule and its
Exceptions: [several cts. today]

A lessor DOES owe duty of reasonable care to maintain the premises
iv. The No-Duty-to-Act Rule [Nonfeasance cases only]
1. Trad. Rule: No duty to act in cases involving “nonfeasance” –
failure to rescue or warn or protect P
(when “should have done” is intervening to help or protect)
i. ***Exceptions*** which impose a duty to act with
reasonable care:
a.
D knows or has reason to know his conduct, whether
innocent or tortious, has already caused some harm to P
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-Ex. I hit person attempting suicide who’s jumping into
street. When I see him unconscious (but not dead) I owe
him duty to help (act reasonably).
b.
D creates an unreasonable [future] risk of harm, whether
tortiously or innocently, to P
- Ex. I do hit & run, then decedent killed later by
someone else who runs him home- I owe him duty of
reasonable care (to help).
c.
Statute imposes the duty
d.
If D starts to affirmatively help P, then D DOES have
duty to act reasonably
e.
D and P are in a special relationship
i.
Common undertaking, aka co-venturers
ii.
RST 3d recognized relationships:
 1. Carrier – passenger
 2. Innkeeper-guest
 3. Landowner-lawful entrant
 4. Employer-employee
 5. School-student
 6. Landlord-tenant; AND
 7. Custodian-person in custody
f. D has made certain enforceable promises.
[“undertakings”]
o
o
1. D who undertakes [promises], gratuitously OR for
consideration, to render services to P which D knows OR
should know would reduce the risk of physical harm to P or
her things [= property or chattels], owes a duty to P, if. . .

[1] D’s failure to perform those services would
increase the risk of such harm to P OR her things
beyond that which would have existed without the
undertaking; OR

[2] P relies on the undertaking.

Qualification: If P only suing based on econ. harm
from breach of K, no leg. cog. harm  no tort duty
2. Duty owed to 3rd party beneficiaries of K
 D who undertakes [promises], gratuitously or for
consideration, to render services to another which D
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knows OR should know would reduce the risk of
physical harm to a third person or her things [=
property or chattels], owes a duty to that third
person, if:

[1]D’s failure to perform those services would
increase the risk of such harm to the third person OR
her things beyond that which would have existed
without the undertaking [promise]; OR

[2] D has undertaken [promised] to perform a duty
owed to the third person by another; or
- RST: Even if “another” contractually
shifts duty he owed to 3rd party to D, both
“another” and D still owe duty to 3rd
party/P]

[3] the person for whom the services are rendered,
OR the third person, OR another relies on the
undertaking.

a. If D has pattern of previous repeated
promises to P OR conduct– this can become
promise to continue to that conduct /
promise in the future that P can reasonably
rely on.]

b. Qualification: D must be in “direct
contact” w/ P [not just 3rd party informants]
to create duty on these grounds.
vi. Duty to Control 3rd Persons - applies for both misfeasance &
nonfeasance
General Rule: D has no-duty to protect [P] from 3rd persons [who injure
P].
Exceptions
 A. D has affirmative duty to protect P from 3rd persons and
D & P are in a spec. relationship . . .
o (see recognized relationships above under
nonfeasance exceptions, incl. ones based on Kpromises)

B. D has affirmative duty to protect P from 3rd persons if D
and 3rd person are in special relationship :
1. custodian-ward
2. parent-dependent child
3. employer-employee w/ facilitation
4. Mental health professional – patient
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
Unsettled issue- When D lacks knowledge
of 3rd person’s violent propensities. . .
o Some jds: no duty
o Others: there IS duty; but D’s
knowledge of 3rd party’s violent
tendencies really speaks to scope of
the risk analysis
C. Negligent entrustment exception- One who supplies a
chattel for the use of another whom the supplier know OR has
reason to know to be likely because of his youth, inexperience,
or otherwise to use it in a manner involving unreasonable risk of
phys. harm to himself and others…owes a duty NOT to entrust
that chattel to the person.
-Usually cases involving entrustment of , guns, cigarette
lighters, cars
D. Briggance Rule : a commercial vendor for on the premises
consumption of alcohol DOES owe duty of ordinary care to 3rd
persons
-Other jds. have held the opposite
-Dram shop (bar regulation) statutes might create potential
liability where P /3rd person sue commerc. alcohol vendor, but
only under certain circumsts.
-HOWEVER, social hosts who provide alcohol owe NO DUTY.
E. Duty to control spouses or fam. members
- Courts generally create affirm. duty for D to act
reasonably when spec. relationship between D & 3rd
party has “control” component
-Ex. custodian-ward
-No duty where D has no control over his family
member (ex. emancipated child)
-No duty exception (There IS a duty) when
parents = D and dependent child = 3rd party
[2].
What standard of care does the law prescribe?
[a].
Generally, reasonable & prudent person standard: to act as a reasonable and
prudent person would under the same or similar circumstances to avoid or
minimize a risk of harm;
[b] .
Sometimes this standard is modified—more or less.

1. Children –
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o
o
If D is a minor, SoC changes to what reasonably careful child of same age /
intelligence / maturity /training /experience would exercise under similar
circumsts.
Exception: modified child SoC reverts back to ordinary (adult) SoC if:
 1. Child performed activity “characteristically undertaken by adults”
AND
 2.That activity was “distinctly dangerous”

2. Phys. impairments - Conduct of actor w/ phys. disability negl. only if it does not
conform to that of a reasonably careful person with same disability –

3. Duties landowners/ possessors [but NOT lessors] owed to persons on land
-Entrant status categories:
 Invitee:
o Any person on premises:
 (1) at least in part for pecuniary benefit of landowner (“business
invitee”) OR
 (2) who is on premises held open to the general public (“public
invitee”)
o Types
 Undiscovered
 Discovered
 Frequent
A.

Licensee:
o (1) Person on land with permission BUT….
o (2) With limited license to be there
o Usually includes social guests

trespasser:
o (1) person who has no legal right to be on another’s land AND
o (2) Who enters land w/o landowner’s consent
o Types
 Undiscovered
 Discovered
 Frequent
Common Law “Status” Approach – Diff. Duties owed based on status:
1.
Trespassers
a.
Undiscovered Trespassers – Reduced SoC
-OK for me to act negligently toward them, but not wantonly /
intentionally
b.
Discovered AND Frequent Trespassers—Reasonable care owed
if:
i.
Discovered:
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(1) D knows OR should have known* that P was on the
property and
(2) knows or should have known* that P was at risk of
harm.
Frequent: duty of ordinary care if :
(1) D knows that an area of her land is frequently used
by trespassers AND
(2) knows that a trespasser could encounter a risk of
harm there.
ii.
-Ex. if I own beach front property & I know trespassers
frequently walk through it for beach access by
footprints) – I owe them ordinary/reasonable care
c.
Child Trespassers—Reasonable Standard of Care if Attractive
Nuisance Doctrine Applies:


2.
(think pool / neighbor case)
- RST 2d Torts § 339: A possessor of land is subject to liab. for
phys. harm to children trespassing thereon caused by an artificial
condition upon land IF:
o (a) the place where the condition exists is one upon
which the possessor knows OR has reason to know* that
children are likely to trespass, AND [foreseeability]
o
(b) the condition is one of which the possessor knows
OR has reason to know* AND which he realizes OR
should realize will involve an unreasonable risk of death
or serious bodily harm to such children [foreseeability]
o
Applies mainly to children of grade school age or
younger – rarely to teens
Licensees (incl. social guests)
a.
Undiscovered Licensees
i.
Conditions—Reduced Standard of Care
o
o
*
Conditions on land = dangers on land, i.e. dangerous
non-obvious excavation, dangerous electrical connection,
hidden step, OR rotten railing that might collapse
OK for D to act negligently towards them, but not
intentionally or wantonly
Cf. “has reason to know.” = D is aware of some specific fact, i.e. shoe on train tracks
(Gladon), that directly shows danger; discovered or received notice of imminent danger to
entrant
16
o
- Ex. I made huge hole on my land & I’ve negligently
left hole there, & if licensee falls into it…
ii. Activities—Reasonable Standard of Care


b.
Discovered/Frequent Licensees—Reasonable Standard of Care
i.
Discovered:
(1) D knows or should have known* that P was on the
property and
(2) knows or should have known* that P was at risk of
harm.
ii.
c.
Frequent:
(1) D knows that an area of her land is frequently used
by licensees and
(2) knows that a licensee could encounter a risk of harm
there.
Child Licensees—Reasonable Standard of Care if Attractive
Nuisance Doctrine applies:
o
o
3.
B.
[See under child trespassers for full attractive nuisance
doctrine above ]
Attractive nuisance doctrine applies mainly to children
of grade school age or younger – rarely to teens
Invitees—Reasonable Standard of Care
Rejecting the Status Approach and Using Reasonable Standard of Care. . .
1.
Model 1 - For all Persons Regardless of Entrant Status; or
2.

Activities = affirmative acts owner does on his land
(i.e. driving on his private road, in process of
excavating land)
Ex. I’m in process of activity of digging on my land,
& licensee comes onto my land & is injured, I’m
held to ordinary reasonable standard of care
Model 2- For all Persons Regardless of Entrant Status Except
Trespassers
4. Duties of Medical and Other Professionals
o
Med. SoC = custom OR procedure used by relevant med. community (specialty
or locale) in very particular circumstances of P’s case.
-BUT scope of the custom must be proven:

A. Sometimes by experts
 1. They est. what SoC is in profession.
17
o
o
o

Qualification - SOMETIMES—obvious cases--- no
expert testimony necessary to est. SoC (i.e. if surgeon
amputates wrong limb)
2. Est. Breach (see under breach –modified SoC breach analysis)
– did dr. follow expert’s description of SoC in given locale /
specialty ?

B. Georgraphical scope of relevant SoC – Models:
 Sometimes based on what SoC is in same town/locale as given
D- physician
 Sometimes SoC in any other similar locale as given physician
 Sometimes nat’l SoC

C. Specialists
 They’re held to SoC of their specialties, NOT their geog.
community
 [Ex. orthopedic surgeon held to higher SoC in setting fracture
than fam. practitioner]

D. Non-med. practitioners
o Ex. chiropractors, podiatrists
o Often held to modified SoC- same SoC as that followed
by others in relevant practitioner community

E. Other professionals
 1. nurses – held to SoC of nurses in sim. practice

2. Hospitals [administration, not med. arm]o

a. May be >1 version in given field for what SoC is [for
given procedure/circumsts.].
In such cases, ct. requires critical mass of professionals
in field that has adopted given approach
Owe duty of reasonable care under nat’l standards fixed
by Joint Commission on Accreditation of Hosps.
 DON’T apply med. profess. SoC here

5. Architects, engineers, accountants, lawyers – SoC for
members of learned professions or skilled trades

6. Edu. malpractice- no such thing, not legally cognizable – no
duty
5. Duty to disclose – informed consent
o
i. Physician’s a.k.a. Professional Rule (trad.)-
18

Dr. only has to disclose to patient info. that’s customarily disclosed in
similar circumsts. (locally / similar communities / specialty / nationally)
by “reasonable practioner”

o
Implications
o
if customarily, physicians/relevant locality/relevant
specialty would not disclose piece of info., no
liability…even if that info. might be material from
patient’s P.O.V.
o
Anti- patient autonomy
ii. Patient (objective) rule (modern): Physician owes patient duty to disclose all
significant med. info. dr. knows OR should know that’s material to patient’s
decision whether to undergo procedure

Definitions
 info dr./profess. knows or should know – est.’ed by expert
testimony

info. has to be material: what a reasonable patient would need
to know in order to make an informed decision.
o
Qualification: If patient informs dr. that he has special
concern about Risk A, then that risk becomes material
o
Pro- patient autonomy
5. Strict Liability setting SoC – abnormally dangerous activities
A.
1.
Strict Liability After Brown
Trespassing Animals. RST:
§ 21. Intrusion by Livestock or Other Animals
An owner or possessor of livestock or other animals, except for dogs and cats,
that intrude upon the land of another is subject to strict liability for physical harm
[person OR property] caused by the intrusion.
§ 22. Wild Animals
(a)
An owner or possessor of a wild animal is subject to strict liability for
physical harm caused by the wild animal.
(b)
A wild animal is an animal that belongs to a category of animals that
[1] have not been generally domesticated and [2] that are likely, unless
restrained, to cause personal injury.
§23. Abnormally Dangerous Animals
19
An owner or possessor of an animal that the owner or possessor knows or has
reason to know has dangerous tendencies abnormal for the animal’s category is
subject to strict liability for physical harm caused by the animal if the harm
ensues from that dangerous tendency.
2.
Abnormally Dangerous Uses. Sullivan; Exner; RST
1. § 20 RST 3d. Abnormally Dangerous Activities –
(a)
An actor who carries on an abnormally dangerous activity is subject to
strict liability for physical harm resulting from the activity.

(b)
Explan
 *S.L. in such cases, even though D may have exercised
reasonable care b/c it’s inevitable (“P”) that D’s activity
sometimes will result, with very great consequences (“L”) , in
phys. harm to person property or chattel
An activity is abnormally dangerous if:
(1)
the activity creates a [1] foreseeable and [2] highly significant
risk of physical harm even when reasonable care is exercised by
all actors; AND
o
(2)
the activity is not one of common usage.
o

“highly sig. risk of phys. harm”
 -Sometimes “B” in breach analysis very high;
law doesn’t require D to take those precautions
(which might actually mean D would not be able
to engage in the ab. Dangerous activity at allnot feasible--i.e. running nuclear power plant)
 Sometimes “B” really low, but “P x L”
extremely high
 can include harm from indirect shockwaves of
the ab. dangerous activity
Means:
 NOT carried on “by a large fraction of the
people in the community” ; OR
 Even if not activity of common usage, many
people in community or country benefiting from
this activity (Policy) – ex. D’s op. of nuclear
power plant
*Once strict liability established, must est. other negl. prima facie
elements:
20




[ except Breach (NON-ISSUE) ]
Harm
Cause-in-fact
Prox. Cause
[ii].
Other times the standard is not modified but the following evidence
may be admitted on breach, § II below, to satisfy the standard
o
o
o
o

1. Dangerous instrumentalities
o Ordinary SoC, despite the level of danger (i.e. when D handling
dangerous instrumentalities ( or whatever the modified SoC is)
o Still relevant in context of reasonable person standard on breach

2. Emerg. situations
o ordinary SoC. (or whatever the modified SoC is)
o Info. still relevant in context of reasonable person standard

3. Superior knowledge –
 Ordinary SoC (or whatever the modified SoC is)
 When person has superior knowledge. he is required & expected to
use it in a manner reasonable under the circumstances
 Superior knowledge = Knowledge relevant to situation not
available to most people
 Applies to profess. malpractice breach analysis
4. (Voluntary) Intoxication5. Mental disability –
6. Old age – ordinary
7. Industry custom –
 Evidence of safety manuals or codes by private or govt. orgs.
 Relevant of what was customarily done, but not as setting
/changing SoC
 D’s compliance w/ them if they’re below SoC does NOT
absolve D of negl.

Exception: DOES change SoC for professional malpractice. See
above.
o
[b].
Sometimes the standard is prescribed by statute or regulation, i.e., negligence
per se. (NPS) – specific rules governing conduct


II.
Overview
i. Statute directly defines SoC
o NPS does not set standard of care if MODIFIED SoC APPLIES
(children, phys. disabled, etc.)
o See breach section for when to apply NPS / if there was breach.
Breach of the SoC:
21
A. Creation of Unreasonable Risk
Overview
 (unless NPS) Breach issues are for the fact finder (the jury, in a jury trial), unless there is
no triable issue of fact [e.g., recall SJ or JMOL].

Once the judge decides on the proper “standard of care” for the case, see supra § I.[2],
the fact finder must determine whether the D has failed to conform to the applicable
standard of care. A.k.a. whether the D has breached his or her “duty of care” /was
“negligent…”
B. Unreasonable Risk Analysis – for Ordinary Care
[1].
Has D created an unreasonable risk of harm [to others] in light of the applicable
standard? OR

Step 1: Assuming ordinary SoC applies. . .

Step 2: identify P’s specific. negl. theory – “should’ve done”

Step 3: For D to be negl. & therefore liable, this risk/benefit formula must be true: B
< P x L (plugging in P’s should’ve done)
o B = burden on D to do “should have done”*
 *“should have done” = specific untaken precautions P says D
should’ve taken to reduce/eliminate risk of harm to others

o
Sometimes B bears its own sub- P & L if Burden has its own
separate probability that harm TO D will occur & its own severity of
potential injury from this burden TO D
 In such cases, modified formula must be true for D to be
negl. : Bp x Bl < P x L
 Bp = probability of potential harm for D if he undertakes
burden of “should have done”
 Bl = Severity of potential harm to D if he undertakes “should
have done”
P = Foreseeable probability that D’s conduct (what D actually did ) would
result in harm to others

Factors that can reduce P:
 1. Plaintiff’s knowledge of potential dangers (ex. house
painter aware of/ has extensive experience w/ risks of
painting at great heights)
 2. Obviousness of danger - when likelihood of risk
materializing is so slight there’s no need for D to try to elim.
risk
 3. Expecting P to care for himself (when P of resulting
harm to himself is foreseeable from P’s perspective)
22


o
4. Expecting care by 3rd persons: D can rely on adult
caregivers to protect their children from dangers in D’s home
of which adults were or should have been aware, but not
from danger parent unaware of (in which case it’s reasonably
foreseeable that parents will fail to prevent minor child from
encountering that unknown danger)
Factors that can increase P:
 1. Plaintiff had known severe inexperience in given risky
situation (ex. very inexperienced house painter painting at
great heights)
 2. Plaintiff has known mental incapacitation
 3. Plaintiff has known med. condition (ex. painter w/ vertigo
might off ladder )
L = Foreseeable severity of any harm to others (from what D actually did)
 If L is high enough, P doesn’t have to be very high to indicate D
should have taken burden (B) of “should have done”
C. Breach analysis w/ modified SoC. . .
 Strategies
o B<PL doesn’t help always when SoC is modified. – use common sense –
proxy for determining party behaved reasonably or not.
o
Did D breach modified standard of care (act reasonably) under the
circumstances, taking into account modified SoC?  Make best B<PL
analysis you can OR just apply subjective analysis.

Child modified SoC - If it’s unclear whether adult or kid SoC applieso 1. Apply adult SoC first – B<PL
o 2. If adult not negl, then kid not negl;
o 3. If adult would’ve been negl. under normal SoC B<PL analysis, then
compare to kid –
 Even though B < PL for reasonable adykt might be fulfilled, B for a
kid might be just too high.
 (in other words, B < PL would not have been fulfilled.)

Med/ professional malpractice
o
o
1. Expert often establishes relevant SoC.
2. Did D follow SoC established by expert?
 No B<PL.!!!
 If SoC in field divided, if P followed one approach w/ “critical mass,”
no breach
 Superior knowledge doctrine relevant.
23
D.
In a negligence per se case, has D violated the applicable statute or regulation [without a
legally recognized excuse]? 1
o
1. Is P (or D) entitled to NPS instruction?
RST 3d §14- Statutory violations as NPS: An actor is negligent if:
-Judge decides these issues:

1. Actor violates statute that does not expressly provide private (civil)
cause of action; AND

2. Statute prohibits specific conduct; AND

3. Statute is designed to protect against type of harm actor’s conduct
causes; AND

4. Accident victim must be within class of persons statute designed to
protect; AND

[ 5. Actor has no excuse. ] -see 3 below
o
2. Has D (or P) violated statute (as interpreted by judge)?
 Jury decides whether D has violated statute as interpreted by judge,
unless there’s no triable issue of fact
o
3. Is D (or P) entitled to excuse instruction?
 Judge decides which excuses, if any, are legally recognized in jurisdic.

o
1
RST 3d § 15- Actor’s violation of statute is excused and NOT NPS if:
 a. violation is reasonable in light of the actor’s childhood, phys.
disability, or phys. incapacitation;

b. actor exercises reasonable care in attempting to comply w/ the
statute

c. actor neither knows nor should know of the factual circumsts.
that render the statute applicable;

d. the actor’s violation of the statute is du to the confusing way
in which the requirements of the statute are presented to the
public; OR

e. the actor’s compliance w/ the statute would involve a greater
risk of phys. harm to the actor or to others than noncompliance.
4. Is D’s (or P’s) violation of statute excused?
 Jury decides, unless here’s no triable issue of fact
 If so, no breach.
D bears the burden to prove that any violation was excused.
24
C. Proving the Underlying Conduct in Negl. Claims
Generally
 Burden of proof in negl cases. – on P
 Standard of Proof for negligence claims? Preponderance of the evidence:
o “more probably true than not true”
o Probability D is negligent must be 51% for D to be liable.
Evidence – What P (or D for contrib. negl.) needs to prove to est. negl.
 Jury considers BOTH circumstantial & direct evidence
o Direct:
 requires no inferential leap for factfinder
 more weight than circumst.
o Circumstantial:
 Enables inference that gives jury enough evidence to determine what
actually happened in accident. Then jury can analyze whether what
actually happened actually constituted negligence , baesd on P’s “should
have done” theory



Jury determines how much weight to give any evidence
Common knowledge vs. expert testimony
o Experts’ not always necessary in substantiating/establishing facts of negl. claim
or defense
o Sometimes experts are necessary to est. underlying technical facts of case- med.
malpractice
o Sometimes juries can rely on common knowledge, w/o expert testimony, to make
reasonable inference about facts
Unreliability of eyewitness testimony – memory issues
C. Evaluating the Underlying Conduct to Determine if it constitutes unreasonable risk
 Common knowledge vs. expert testimony
o Sometimes expert needed to help jury navigate B < PL analysis
o Sometimes juries can use common knowledge to do breach analysis to determine
whether D acted reasonably

D’s own rules of conduct vs. Standard of Care
o Company cannot substitute its own policies as standard of care (reasonable &
prudent person standard)
o
Industry custom & usage
 D’s departure from custom of community, or of others in like
circumstances, in a way that increases the risk relevant as evidence of
that person’s negl. (breach) but does not require finding of negl.
 Admissible as evidence for breach, even if D only following govt. code
that prescribes lower safety requirements than industry custom
 Poss. for entire industry to fall behind standard of care; just b/c whole
industry following industry custom DOES NOT NECC. MEAN that
there was no breach/negl.
25
D. Res Ipsa Loquitur (RIL) – Exception for allowing jury to consider breach in absence of
circumst. and direct evidence from P
1. Generally

P doesn’t even have to est. prima facie case for negligence

These kinds of cases speak for themselves. They don’t generally happen unless there was
negligence (breach). Therefore, w/o understanding fully what happened (P has little
circumst. Or direct evidence), jury has permissible (though not mandatory) inference,
based on common knowledge, that:
o
o

a) there was negligence and
b) D particularly was negl. (breach)
Ex. Classic cases: airplane crash where all key witnesses die; P goes into surgical
procedure on x body part, and after she wakes up, has injury to completely unrelated y
body part
2. Rule- P can apply R.I.L. to establish breach when the following are true:
a. Occurrence must be one which ordinarily does not happen unless there is negl
(must be more likely than not).; AND
o
i. In some jds, theoretical case by P acceptable, unless P offers specific
evidence- complete factual explanation-- of the case

Med. malpractice Exception: R.I.L. expert testimony allowed for spec.
case of med. malpractice
.
 P MAY use specific evidence of expert testimony to help jury
“bridge gap” between jury’s common knowledge and inference
of breach.
o Ex. if it’s a very specialized procedure
o
ii. In some jds., P NOT be precluded from RIL theory if it can’t establish that D
has superior knowledge; regardless of this info., this wouldn’t change jury’s
probability assessment of D’s negligence
 Other jurisdics. have held opposite
o
Explan.:
 jury infers negligence generally;
 few facts that P has and presents + common knowledge, give rise to
inference that mere happening of event reveals it’s more likely than not
that someone was negligent
b. –It’s more likely than not this particular D negligently caused injury. (Other poss.
causes of accident, incl. conduct of P & 3rd persons, or natural forces, have been
sufficiently eliminated by the evidence.)
26
i. P not allowed to use RIL theory unless P can show that specific evidence
of negl. (breach) (ex. expert opinion of underlying conduct) --to rule out
other explanations for accident besides D’s negligence-- was
unobtainable
ii. Exclusive control: Minority of jds. require showing D was in “exclusive
control” over injury-causing instrument for R.I.L. instruc.
1. They interpret “control” liberally –
A. Enough that D has right or power of control and
opportunity to exercise it;
B. Even if P also had some control over injury-causing
instrument, jury can still find D had exclusive control.
iii. Serial control: when multiple Ds had control over injury-causing
instrumentality / activity consecutively
1. Usually, means no R.I.L. instruc.
A. Ex. Medical malpractice- if several drs. & healthcare
workers handle P during surgical procedure, no R.I.L.
instruction.
2. Rationale: Either D could’ve caused P’s injury – not more likely
than not one or the other was negl.
o
For a jurisdic.’s R.I.L. doctrine to be compatible in comparative negl. jurisidic.
(most), R.I.L. must allow some contributory negligence on part of P  P can
still recover, but if/when P does recover based on R.I.L. theory, P’s recovery
reduced
4. Effect of Jury RIL Instruction- Different Approches
 Burden of production:
o party must produce some evidence of something – lower burden than burden of
persuasion
o If P has permissible inference of D’s negl. (has fulfilled R.I.L. elements), means
P has fulfilled burden of production & overcome all procedural hurdles to get to
jury

Burden of persuasion:
o Encompasses both burdens
o P must prove jury on preponderance of the evidence (that case is satisfied by
>51% standard)
o More onerous than burden of production; requires P to actually prove that its
theory of case is more likely than not, aka > 50% what happened.
o Even if P & fulfills burden of production & gets all the way to jury based on
R.I.L. theory, P still may not fulfill burden of persuasion; jury may reject
permissible inference of negligence based on P’s R.I.L. theory & bring verdict
for D

Permissible inference effect (majority approach)
27
o
o
R.I.L. creates permissible inference that jury may draw if it sees fit
RI.L. doesn’t shift burden of persuasion from P to D; so D may introduce no
evidence at all, & jury may reject the permissible inference and bring verdict for
D.

Presumption effect (minority approach)
o R.I.L. creates presumption of negl. 2 variations:
 A. Jury told that once presumption applies, burden of persuasion shifts to
D – D now has burden of showing he is not negligence; OR
 B. Judge directs verdict for P, unless D produces some evidence that he
was not negl.
o Much stronger implications than permissible inference effect.

Abnormally strong inferences of negligence:
o When P’s R.I.L. super-circumstantial proof is so convincing and D’s response is
so week that inference of D’s negl. is inescapable, permissible inference becomes
mandatory inference, so trial judge directs verdict for P.
o Rare that trial judge will do this.
3. Some courts:
a. P NOT precluded from RIL theory if it can’t establish that D has superior
knowledge; regardless of whether or not D has superior knowledge, it ultimately
doesn’t change jury’s probability assessment of D’s negligence (“more likely
than not” /element 1 standard for RIL to apply)
i. Other courts disagree with this sub- RIL rule.
3. Policy rationale
 Corrective justice – assumption that it’s “right and moral” thing to compensate injured P
 Res ipsa promotes C.J. in situations when P has no direct or circumstantial evidence of
D’s negligence, in that although P would otherwise not be able to fulfill burden of proof,
this doctrine at least gives P chance to recover by getting case to the jury, enabling jury to
infer, even w/o knowledge of underlying conduct giving rise to P’s injury, that D was
negligent.

III.
Legally Cognizable Harm:
A. Actual Injury
Harm is a mixed question of fact and law. Whether P has suffered actual “harm”/damages is
an issue for the fact finder, unless there is no triable issue of fact.
-Whether the “harm” suffered is legally cognizable—one the law will recognize—is an issue for
the judge only.
[1].
Traditionally, P must suffer actual injury, harm, or damage to self OR property.
 What DOESN’T count to recover for negl. claim?
o Impermanent bodily changes w/o pain do not count (ex. temp. heartrate
increase w/o pain or actual harm)
o Nominal damages – damages in name only
28
[2].
Some exceptions exist where the rule is relaxed a bit and other harms become
cognizable.
B. Reconceptualizing Harm Because of Causation Problems
1. Loss of Chance for a Better Outcome (LCBO) as Harm
i. Generally
 Cases in which even if D had exercised proper care, P still may not have lived /
been seriously injured
 LCBO can be P’s harm in event of causation issues with death or serious injury,
when odds were high, despite D’s negl., of death or serious injury.
3 approaches

1. Traditional (minority approach)
o Did D’s negl. deprive P of a more favorable outcome than she actually
received?
o “all or nothing”
 If P proves that had D exercised reasonable care, she would’ve had at
least a 51% chance better outcome, P can recover for entire
underlying preexisting injury
 If not, then P gets nothing.
o Ex.
 Patient who was negligently misdiagnosed, but who would have had
only a 50% chance of full recovery from her condition, even if D had
exercised reasonable care
 No recovery, b/c this falls below requisite causation threshold: 51%
chance for better outcome

2. Relaxed Causation (modified trad. Approach)
o Permits P to submit case to jury if he proves D’s negl. more likely than not
(>51%) destroyed substantial possibility of achieving a more favorable
outcome
o P can still recover if her chance for better recovery was <51%, as long as she
could prove that D’s negl. increased her harm to some degree (varies by
jurisdic.)

3. LCBO = the leg. cog. harm itself (not phys. injury or death)
o
Delta = (Chance of living, had P received proper care) - (Chance of living
w/ existing negl. care)
o
P must prove that D caused LCBO = delta by PoE; that there was a at leat
51% chance that lost chance would’ve resulted in better chance of recovery
o
Recovery:
 P can recover even if her chances of better recovery are < 51%.
 Not for entire injury, but rather for total damages x Delta
29
o
o
Example - Given:
 W/ proper, due care: P would’ve had 30% chance living/ 70% dying
 In reality, negligent care: P now has 5 % chance living / 95% dying
 Harm = LCBO = difference between chance of living w/ proper
care & w/ neg. care = 25%
 P claims D’s negl. care caused his death.
Here, P can’t use death as legally cognizable harm b/c it’s hardly clear that
D was a “but for” cause of death.
 Even if D had exercised proper care, chance of death was more
likely than not (70%)
 Means D’s causation of death (harm) by PoE unfulfilled if death is
leg. cog. harm
o
P needs diff. legally cognizable harm (other than death) to avoid this
causation problem  LCBO
 Chance of living, had P received proper care = 30%
 Chance of living w/ existing negl. care = 5%
 Harm = LCBO = Delta = 25%
o
Measuring & proving Delta
 P defines delta w/ expert (med.) testimony
 P must prove D caused delta, LCBO, by preponderance of the
evidence (>51% )
Recovery: LCBO here = 25%, so D pays 25% of wrongful death damages
o
Pure Increased Risk of Future Harm
 When D knows he was exposed to risk of harm (i.e., thru toxic exposure) long before
claim brought, but wasn’t physically “harmed” in legally cognizable way up through
time he brings claim
 While P does not have trad. legally cognizable harm (actual harm to person or
property), he might still have other harms:
o emotional distress &
o expenses of medical monitoring
o P can reconceptualize these non-legally cognizable harms as increased risk
of future harm to fulfill harm element
 Timeline: TOXIC EXPOSURE --------COMPLAINT
 risk of future harm
C. Special Types of Leg. Cog. Harms

1. Emotional Harm: IIED & NIED – (stand-alone, no accomp. phys. injury to
person or property)
o
a. IIED : an actor is subject to liab. for emo. Disturbance, and, if the emo.
Disturbance causes bodily harm, also for the bodily harm if by:
 (1) extreme & outrageous conduct**- ISSUE!
 Weigh severity and regularity (time-frame – long or short?)
of D’s conduct
30




*Spectrum - very fact-sensitive
Relevant: Abuse of power – D in more powerful position
than P & takes advantage of P’s vulnerability
Exercising legal right Person can’t be held liable for IIED
just for exercising legal right, like filing for divorce, firing
at-will employee, collecting debt; but if such person goes
very far beyond what’s necessary to exercise that right, may
“e & o” enough to subject D to IIED claim
(2) intentionally OR recklessly
o Intentionally: (1) Desire OR (2) Knowledge with
substantial certainty
o
Recklessly: D knows there is / could be high risk of emo.
Distress, but consciously disregards this
o
Generally, transf. intent DOES NOT apply to IIED.

Except Ltd. Transferred intent…when such
conduct [1] directed at 3rd person, and [2] there’s
no proof D intended to cause harm to P, P can
still recover if D intentionally or recklessly
causes severe emo. distress:
 a) to member of such person’s (P’s)
immed. fam. who is present at the time,
whether or not such distress results in
bodily harm, OR
 b) to any other person who is present at
the time, if such distress results in
bodily harm
 Ex. D intentionally kills husband (3rd
party) in presence of his wife (P)
 *Intent only transfers to P in this rare
situation.

(3) causes
 But-for test
 (*Usually not at issue- easy to infer)
 Occasional calls for psych. expert

(4) severe emo. disturbance to another – obj/subj. test
 1. Subj: P must claim he actually suffered severe emo.
distress (easy)
 2. Obj: distress must be so severe that no reasonable person
would be expected to endure it
o Exception: If D knows that this partic. P has a
“hypersensitivity” to partic. issue, & D takes
advantage of this, that suffices even though a
reasonable person might not suffer emo. distress in
such circumsts.
31

1.
2.
2. Negligent Infliction of Emotional Distress (NIED) —Risk of Physical Injury to
P or Certain Other Special Cases; and P Suffers Serious Emotional Distress
Duty.
a.
D legal duty to P. Yes, unless a no-duty rule applies.
b.
Standard of care—reasonableness
D acted negligently—i.e., breached due care—and
(a) placed the P in risk of immediate physical bodily harm or
(b) in some special cases there need not be a risk of physical harm to the P (but
rather harm can be to 3rd party, ex. his loved one) but the case must involve:
 1. a special relationship (e.g. Burgess v. Superior Court), OR
 1. Doctor-patient
 2. Other K-relationships for services “that carry….deeply
emotional responses in the event of breach”
3.

2. the mishandling of dead bodies (often couched as involving a special
relationship), or
 *Cts. split on whether P (usually close fam. member) can recover
for mishandling of decedent

3. the erroneous notice of death of a close relative (e.g. Johnson v.
State).
HARM: P actually and reasonably suffered serious emotional distress [i.e., an ordinary,
reasonable person would have also suffered serious emotional distress], PLUS
(depending on jurisdiction):
a.
Model 1- Physical impact [nearly obsolete & inapplicable under 2(b) above]; or
b.
Model 2- Physical manifestation [this = objective proof of emotional harm]; or
c.
Model 3- Emotional distress alone suffices as a legally cognizable harm [RST 3
d]….usually With qualifications:
o 1. Emo. Distress must be [1] serious or severe where [2[ reasonable
person would be unable to cope
o 2. Claimed injury must be supported by expert proof

4.
D’s negligence was a cause in fact of P’s emotional distress.
5.
D’s negligence was a proximate cause of P’s emotional distress.
-Negligent Infliction of Emotional Distress -- Serious Physical Injury to 3d Person and P
Suffers Serious Emotional Distress —“Bystander Claims”
32
1.
Prove D committed a tort of negligence to a 3d person resulting in serious physical injury
to the 3d person.
a.
D [1] owed a duty to 3d person,[2] breach, [3] harm, [4] cause in fact, and [5]
scope of risk.
*(NIED derivative of tort D committed against 3rd party)
2.
P [1] actually and [2] reasonably suffered serious emotional distress [i.e., an ordinary,
reasonable person would have also suffered serious emotional distress], PLUS
(depending on jurisdiction):
a.
Physical manifestation [serves as objective proof of emotional harm]; or
b.
Emotional distress alone suffices as a legally cognizable harm [RST 3d].
[contd. below!!}
3.
EITHER
a.
P [1] w/in zone of danger (at risk of physical injury) AND [2] fear or
apprehension for own safety at time or near it [in many ways this is the same as
the scenario described above in B]; OR
b.
P is [1] closely related to injured victim AND [2] present at the scene during the
injury producing event + aware that it is causing the injury.
4.
D’s negligence was a cause in fact of P’s emotional distress.
5.
D’s negligence was a proximate cause of P’s emotional distress.
Loss of consortium
o a. harm = intangible loss of support or services when 3rd party is injured seriously or dies
owing to D’s negl., incl:
 love, companionship, affection
 sexual relationship No such thing as loss of filial consortium
o
b. Claim derivative of 3rd person’s claim against D…Implications:
 P’s claim can rise no higher than claim from which it derives.
 Some cases: injured 3rd party’s contrib.. negl. will bar or reduce LoC claim as
it would bar/reduce phys. injured 3rd party’s claim
 Other cases: derivative LOC claim independent of main claim, not affected by
contrib.. negl. of phys. injured 3rd party OR his release
o
c. P must be special relationship between w/ injured 3rd person – (varies by jd.):
 spousal relationship – most jds.
 child’s claim for loss of parental consortium – mixed by jds.
 unmarried cohabitants?
 Trend towards some cts. allowing LoC claims
 Gay & lesbian partnerships –if statute in jd. treats domestic parternships as
marriage, then yes
33

Loss of filial consortium?
 *No such thing as loss of filial consortioum for adult child (parents = P, injured
3rd party = adult child)
 Parent’s claim for loss of minor child’s society & companionship – most courts
say no

Pets - No LoC claims for D’s negligent damage to pets = property
o
d. Recovery by P w/ stand-alone emo. distress by 3rd party? When injured 3rd person in spec.
relationship w/ P NOT physically injured, just emotionally injured by D’s negligence, courts
more divided on whether P can recover under LoC theory
3. Prenatal / Conception Torts – **see chart attached **
4. Death –
o
o
IV.
Survival statutes- analyze the given statute
 Revives a case where P or D dies  estate steps into shoes of party
who died & case continues
 Remedial- permits recovery by reps. of deceased for damages the
deceased could have recovered had he lived

Wrongful death statutes- **MORE COMPLICATED**
 Compensate survivors of deceased for lossess they’ve sustained as a
result of a wrongful killing
 Often incl. prospective loss of earnings & contribution; prospective
expenses; loss of services; loss of companionship, comfort, consortium;
mental anguish & grief
 Statute lists recognized beneficiaries, i.e. heirs, grandchildren, children,
but not stepchildren – relationships defined (VARIES
Actual Cause / Cause in Fact:
-Actual-cause issues are for the fact finder, unless there is no triable issue of fact.
1. Tests
[1].

Purpose: to determine whether D’s negligent conduct was a cause-in-factfact of P’s
harm, not the cause in fact, of P’s harm, & therefore liable
In the vast majority of cases, P must show that “but for” D’s breach [i.e., negligence] , P
would not have been harmed.
 Explan: If D had done what a reasonable person would have done [the “should’ve
done” precaution] / if D had exercised proper care under the circumstances, P would
not have been harmed.

2 Ds causing 2 separate, divisible injuries to P:
34
o
o

[2].
Under this test, more than 1 D’s conduct can be actual cause of P’s
(respective) injuries.
Each D’s respective liability apportioned to match harm that individ. D
actually causes
2 Ds are both necessary, together to causing a single, indivisible injury (horse
carcass hypo)
o If D1 had exercised proper care under the circumstances, P would not have
incurred injury x.
o Furthermore, if D2 had exercised proper care under the circumstances, P
would not have incurred injury x.
o Therefore both A & B are “but for” causes in fact of P’s single injury and
both are subject to liability.
In some limited circumstances or jurisdictions, P may instead show that D’s breach [i.e.,
negligence] was a substantial factor in causing P’s harm.

Rationale : when multiple Ds are independently sufficient causes for P’s injury,
“but for” test doesn’t work
o
o
This is b/c either D’s cause alone would’ve been suffic. to cause harm to P;
Still, most courts agree P should still be able to recover / multiple Ds should
be held liable, even though “but for” test fails in these cases.

In these cases, Ds jointly & severally liable [see **insert section*** ]

[3] Causation In Informed Consent Cases (but not regular malpractice cases)
o
Jury question-
o
Had patient received x material information, would reasonable person*
have still undergone procedure with the full disclosure?  OBJECTIVE
B. Proof of Causation
1. P must prove D(s) was/were cause-in-fact of injury using above tests by preponderance of the
evidence. (PoE) (>51% chance D(s) caused the given leg. cog. harm)

Exceptions:
o 1. (Summers v. Tice dual gun shots)
 When P can only est. that 2 Ds who caused P’s single injury each
had 50% chance of actually causing that injury, this would not prove
causation by PoE.
 However, in such cases, where it’s unclear which of the 2 Ds caused
P’s single injury, but the 2 Ds commit substantially similar negl. acts,
burden of proof for causation shifts to Ds (they individually must
work out who was cause-in-fact; if they can’t, but will be liable)
o 2. Vicarious liability
35


D1 = tortfeasor
D2 strictly liable for D1’s tort pursuant to strict liability doctrine, i.e.
respondiat superior , even though D1 NOT a cause-in-fact of P’s
injury
2. Res ipsa loquitur
 R.I.L. doctrine usually (but not always) assists P in fulfilling causation through
inference
 In cases that don’t generally happen unless there was negligence (breach), jury can
infer that D’s negl. causd injury without even understanding what actually gave rise
to accident
 ( Also see under breach above )
V.
Proximate Cause (Scope of Risk):

Which of potential Ds whose negl. were cause-in-fact of injuries can be held liable?
(policy reasons of limiting class of potential Ds)
Scope-of-risk issues [1] and [2] are for the fact finder, unless there is no triable issue of fact.
[1].
Type of harm suffered by P must fall within the scope of the risk the D
negligently created—i.e., a reasonable person would have foreseen harm of the
same general type; AND
**MUST TAKE INTO ACCOUNT MODIFIED SoC.***
Ex. child – A reasonable child of the same age/maturity level
would have foreseen harm of the same gen. type.
[a].

Intervening Cause
An intervening act or force (by nature, other tortfeasor, or innocent 3d. party)
can fall within the scope of the risk the D negligently created. . .so long as the
intervening act or force, or one of the same general type, is foreseeable.

Intervening  Superseding cause
o When intervening act/force was not foreseeable, it breaks proximate
causal chain  D not proximate cause of P’it’s a superseding cause
(negates D’s liability b/c D not proximate cause)

Criminal intervening acts –
 Many cts: D not bound to anticipate crim. acts of 3rd parties who inflict
damages  crim. act breaks causal chain & negates D’s liab.
36
o

Suicide (maj.)
o Where P intentionally attempts to commit OR does commit suicide, that
act is a superseding cause of P’s harm  D not liable for negl.

Negl. intervening Acts
o Tortfeasors Acting in Sequence – when D1 “merely furnished condition
by which injury was possible” but didn’t himself directly cause it.
o An intervening act of some 2nd tortfeasor should relieve the first
tortfeasor of liability only when the resulting harm is outside the SoR
negligently created by the first tortfeasor
o Even if D2, 2nd tortfeasor, ultimately injures P, that doesn’t negate D1’s,
1st tortfeasor’s, negligence, even if result of D1’s negl. was over by the
time P got injured. D1 can still be held liable for P’s entire injury.
[b].
The precise manner in which the harm occurs need not be foreseeable for D to be
prox. cause. – manipulable
[c].
The extent of the harm suffered by P need not be foreseeable for D to be prox.
cause. Thin skull rule:
o Assuming D satisfies each element of prima facie case -- duty, breach,
causation, actual harm, proximate cause . . .
o If harm to P was way more extensive than D could’ve imagined (considering
P’s preexisting med. condition, or high value of P’s damaged chattle) , D still
liable for entire extent of P’s harm b/c extent of P’s harm suffered does not
need to be foreseeable


[2].
HOWEVER, RST 2d § 449 disagrees: “The happening of the very event
the likelihood of which makes the actor’s conduct negl. and so subjects
the actor to liability cannot relieve him from liability.”
Enhanced injury - Medical malpractice is always foreseeable.
 When D causes harm to P, that D will also be liable for any “enhanced harm”
caused by the later negligent provision of aid, including neg. medical
treatment. . .incl. any injuries P suffers during her transportation to med. facility
 Medical malpractice is always, categorically foreseeable.  Easier for P to
recover against D1 for full cost of injury (enhanced by D2’s med. malpractice)
P must fall within the class of persons risked by D’s negligence—i.e., a
reasonable person would have foreseen harm of the same general type to a class
of persons to which P belongs.
**MUST TAKE INTO ACCOUNT MODIFIED SoC.***
Ex. child – A reasonable person of same age/maturity would have
foreseen harm of the same gen. type….”
[3] Proximate Cause Sub-Rules
 superior knowledge rule:
37
o
o

part of foreseeability analysis is what “reasonable person would’ve foreseen”
under conditions;
this includes using superior knowledge if D has any
rescue knowledge
o Rescuer can recover from D whose negl. prompts the rescue if rescuer
harmed in course of a rescue
o Rationale: if D negligently creates danger to P, rescue is foreseeable
B. Apportioning Fault Among Multiple Tortfeasors

Joint & several liability vs. comparative fault [or “proportionate share” or
“several only”] apportionment
o
o
o
o
o
o 1. Joint & several liability system:
Each D is liable for full amt. of P’s damages, and P may sue either one or both
tortfeasors – but P cannot recover for more than total damages
 P can go after D1 OR D2 for entire damages; or
 P can go after D1 for part and D2 for part (“deepest pockets”)
Ds act separately, w/o agreement, & their independent acts combine to give P a
single injury (it’s P’s resulting, single injury that’s joint, as opp. to Ds’ actions )
Does not apply if Ds respectively caused 2 separate injuries
Damages Implications: affects max. amt. damages P can recover from each
respective D in context of pure comparative negl. system and multiple
tortfeasors analysis
Contribution:
 Under J&S system, allows D1 to obtain contribution from D2 to make
D1’s payment to P of damages proportional to its fault
 Ds must work out among themselves (one sues the other) to determine
what the “fair” apportionment of liability is; P doesn’t have to do
anything
 ; P gets full damages regardless (assuming Ds can pay)
o
2. Proportionate share [a.k.a. Comparative Fault or Several Only]
system: Jury must assign fault to each respective D
 If D1 was 30% responsible, P can only recover 30% total damages
from D1.
 If D2 was 70% responsible, P can only 70% total damages from D2
 If 1 of the Ds can’t pay their fair share, then P screwed out of that
amount
 Richer D doesn’t have to pay more than his fair share of fault to
compensate or other D’s inability to pay, as opp. to joint & several
system
 Damages Implications: affects max. amt. damages P can recover
from each respective D in pure comparative negl. system w/ multiple
tortfeasors analysis
38

o
DAMAGES ANALYSIS – Interaction of Contributory/Comparative Negligence
[% P’s fault] and System of Fault Apportionment [% multiple tortfeasors’ fault]
1. Can P recover ?

A. Contrib..
 If P at fault AT ALL, NO

B. Pure comparative
 P can be any % at fault….and still CAN recover

C. P’s fault > D’s bars


Non-aggregate system: Only if P’s %fault less than OR = to each
respective D’s % fault; OR
o Compare P’s % fault to each D’s % fault

Aggregate system: Only if P’s fault less than or = to combined % fault of
all Ds
o Compare P’s % fault to each D’s % fault
D. P’s fault > OR = D’s bars
 Non-agg.: Only if P’s % fault less than each respective D’s %

o
Agg: Only if P’s % fault less than combined % fault all Ds
2. If so, what is P’s total max. recovery, taking into acct. reductions?


Contrib.
 N/A
Pure Comparative
 No matter % P’s fault. . .
39

o

P’s fault > D’s bars
 total damages - (total damages x % P’s fault)

P’s fault > OR = D’s bars
 total damages - (total damages x % P’s fault)
3. What is total amt. P can recover from each respective D?
 Contrib. – N/A


P can recover max total of:
total damages - (total damages x % P’s fault)
All comparative systems: pure, modified model 1, model 2
 Several only/comparative fault/ proportionate share:
o Each respective D pays share of P’s total max. recovery: his
own % fault x total damages
 Joint & Several system:
o P can recover total max. recovery from any singl D; or Part from
each D
Insolvent or immune tortfeasors: If D1 has no insurance & no personal assets from
which P could collect judgment (or if D was immune to tort liability).:
o Under joint & several liability rule,
 P would recover damages from D2, solvent tortfeasor
 D2 would not be able to recover contribution from insolvent D1;
 Means D2 would have to pay ALL of insolvent, uninsured, or immune
tortfeasor’s share of damages
o
Under several only / comparative fault/ proportionate share system:
 P can’t recover more than a given D’s share of fault. If D1 90% at fault
and D2 10% at fault, but D1 can’t pay full amount, P can’t recover the
difference from D2. / No contribution
o
Policy implications
 Tort law’s goal of reimbursing victim for injury > D paying
proportionate share of his fault. D2’s payment to P is NOT proportionate
to his fault.
C. NEGL. – AFFIRMATIVE DEFENSES
I.
Contributory Negl
A. Trad. Contributory Negligence Defense – (MINORITY TODAY)
 All-or-nothing: Bars P’s recovery completely, even if P just a little bit at fault compared
to D
 Very easy to apply
1. ANALYSIS: D must fulfill prima facie negl. case in terms of P’s duty….etc. to himself for this
defense to apply:

1. Did P have duty to himself to act reasonably & prudently?
40
o
o
EXCEPTION - no-duty cases
If yes…
 P does owe duty to himself? OR no-duty rule?
 If so, then what is P’s SoC to himself?
o Is P child?
o Does P have phys. disability?
o Is P a trespasser?

2. Breach- Did P create unreasonable risk to himself?
o B < P x L ? – Was P’s burden untaken precaution < probability of harm to others
[including himself?] x extent of harm to others [including himself? ] ?
o (Taking into acct. poss. modified SoC)

3. Legally cognizable harm
o Easy – if P is suing D for legally cognizable harm, the same harm will apply

4. Was P’s negl. cause-in-fact of his own harm?
o But-for
o Substantial factor

5. Was P proximate cause of his own harm?
o Was harm of same general type suffered by P within the scope of the risk the P
himself negligently created?
o Did P fall within the class of persons risked by P’s own negligence?
2. When is conributory negl. defense unavailable for public policy reasons?
 Meaning D fully liable…

When P’s injury relates to D’s core breach, and P’s own contrib. neg. is within the scope
of risk that D negligently created.
o Bexiga – D was negligent in failing to install machine safety device. It claimed P
was comparatively negl. in operating machine. But P’s negligent operation of
machine that resulted in injury was within scope of risk of D’s breach, so D
cannot invoke contrib.. neg. defense .

When special no-duty rule applies
o Child has no duty to guard against sexual abuse by an adult sexual abuse victim,
owes no duty to herself to protect herself against
o Property owner’s entitlements  P entitled to use her property, even if in doing so she is in danger of harm
by the D’s negl.
3. Implications for Damages

In calculating max. amt. P can recover, if P even 1% at fault, recovery COMPLETELY
BARRED = 0.
D. Trad. exceptions to the Contrib. Negl. Bar (enabling P’s recovery)
41
(These defenses only apply in small minority of jurisdics. that still have trad. contrib.. negl.
scheme)

1. Rescue Doctrine –
o One who sees a person in imminent danger caused by the negl. of another
(person in danger) cannot be charged w/ contrib.. neg. unless rescuer acted
recklessly

2. Last Clear Chance & Discovered Peril Doctrine
o Last clear chance:
 Negl. P could have full recovery when P was left in a helpless position
by his own negl. and D, who had last clear chance to avoid injury,
negligently inflicted it anyway
 If D discovered or should have discovered the P’s peril, AND could
reasonably have avoided it, P’s earlier negl. would neither bar nor reduce
P’s recovery
o Discovered peril: (less generous version)
 Last clear chance rule appies only if D actually did discover P’s peril
o P couldn’t invoke either doctrine unless P was helpless / could not extricate
himself from danger at any time

3. D’s reckless OR intentional misconduct
o If P can show D wasn’t just neg., but was actually worse than neg. (reckless,
wanton, or intentional), trad. contrib.. neg defense then does NOT apply & P can
recover fully.
o These torts worse than negl./border on intentional torts b/c they involve bad state
of mind + risky conduct
o
II. Comparative Negl.
1. Analysis - Walk through P.F. negl. case in terms of P’s duty…etc. to himself

1. Did P have duty to himself to act reasonably & prudently?
o EXCEPTION - no-duty cases
o If yes…
 P does owe duty to himself? OR no-duty rule?
 If so, then what is P’s SoC to himself?
o Is P child?
o Does P have phys. disability?
o Is P a trespasser?

2. Breach- Did P create unreasonable risk to himself?
o B < P x L ? – Was P’s burden untaken precaution < probability of harm to others
x extent of harm to others?
o (Taking into acct. poss. modified SoC)

3. Legally cognizable harm
o Easy – if P is suing D for legally cognizable harm, the same harm will apply
42

4. Was P’s negl. cause-in-fact of his own harm?
o But-for
o Substantial factor

5. Was P proximate cause of his own harm?
o Was harm of same general type suffered by P within the scope of the risk the P
himself negligently created?
o Did P fall within the class of persons risked by P’s own negligence?
2. Implications for Damages
A. Pure comparative negl. system:
 If P x% negl. and D y% negl., P recovers max of
total damages – (damages x % P’s fault )
 Ex. Even if P P 99% neg. and D 1% negligent, P still recovers, albeit a little 
total damages – (99% x total damages) of her liability
B. Modified comparative negl. system Type 1
 P can still recover max. of (total damages) – (damages x % P’s fault) , as long as P’s neg.
was
less than OR = to D’s fault
 Therefore P can still recover if he was 50% neg; but NOT if he was 51%.
 Before fault of P and Ds compared, must consider if jurisdic. has statute that allows for
aggregation – fault of 2 Ds can be combined before fault between Ds & Ps compared
C. Modified comparative negl. system Type 2
 P can still recover max. of (total damages) – (damages x % P’s fault) as long as P’s fault
was less than D’s fault
 Therefore if P was 50% at fault, P can’t recover.
 Before fault of P and Ds compared, must consider if jurisdic. has statute that allows for
aggregation – fault of 2 Ds can be combined before fault between Ds & Ps compared
D. When is comparative negl. defense unavailable for public policy / justice reasons?
 P’s/patient’s antecedent negl. that provides only the occasion for medical treatment may
not be compared to that of a negl. physician (who negl. injures P when he goes to hosp.
as a result of harm from his own negl.)
o P’s recovery undiminished here
-Jury role in apportioning liab. –distributing % fault among several D’s and between Ds and P
RST 3d §7
 Factors for assigning shares of responsibility to each party whose legal responsibility has
been established include:
o (a) The nature of the person’s risk-creating conduct, incl. any awareness or
indifference with respect to the risks created by the conduct AND any intent with
respect to the harm created by the conduct; and
 *Conduct relevant for determining % of responsibility only when it
caused the harm AND when the harm is within the scope of the person’s
liability
43





o
how unreasonable conduct was under the circumstances
extent to which the conduct failed to meet the applicable legal standard
circumstances surrounding the conduct
each person’s abilities and disabilities
Each person’s awareness, intent, or indifference with respect to the risks
(b) the strength of the causal connection between the person’s risk-creating
conduct and the harm
 how attenuated the causal connection is
 timing of each person’s conduct in causing the harm
 comparison of the risks created by the conduct
 actual harm suffered by the P
III. Assumption of the Risk
1. Contractual (Express) Assumption

Express assumption of risk can still arise even if release K is not in writing
o P expressly agrees (signs release) that she will not hold D liable for injury she
suffers from risk D creates, even if risk arises from D’s negl.

Consequences of express assumption of risk: P’s claim completely barred

Survives as a Separate, Complete Defense Everywhere
o
(1) Except when contract is void as a matter of policy. OR
 “Tunkl” Factors:
 The business is of a type generally thought suitable for public
regulation.
 D’s service is essential to the public, and perhaps a practical
necessity.
 D is holding itself out as performing the service generally for the
public.
 The need for D’s service and the economic setting give D
decisive advantage of bargaining strength.
o Ex. if D is only childcare center in town
 If lang. of release unclear or ambiguous OR written in fine / obscure
print
 If release has clause barring recovery for reckless or negligently caused
injury (more serious than negl.)

44
o
(2).Except when the risk of injuries/negl. is outside the scope of the contract.
 Sometimes releases don’t actually cover certain dangers that actually
result;
 (Ex. Moore ATV course case- unnecessary danger of improper training
course layout/jagged rocks was an unnecessary danger for a beginner’s
course that WAS NOT within the scope of the release which covered
normal risks & negl. assoc. w/ ATV riding)
 Agreement to assume risk of injuries will not extend to collateral risks
beyond P’s contemplation (here, poorly laid out safety course / jagged
rocks)
2. Implied Assumption of the Risk

A. Separate, Complete Defense in Traditional Contributory Negligence Jurisdictions.
(MINORITY)

o

“all or nothing” _ Complete defense/ bar to P’s recovery if D shows:
 1. P knew of the risk; AND
 2. P appreciated its danger; AND
 3. P voluntarily confronted risk
Unless against some public policy.
B. Eliminated as a Separate Defense in Most Comparative Negligence Jurisdictions
o
1. Most simply “merge” the doctrine into comparative negligence.

Can mean:
 P’s implied assumption of the risk (if all elements fulfilled) is
accounted for in determining P’s % fault in modern comparative
fault analysis
 I.A.R. not complete bar to P’s recovery (“all or nothing”), but rather
reduces amt. of P’s recovery proportionately in comparative fault
analysis

Also can mean:
 If P reasonably impliedly assumed the risk, then I.A.R. defense does
not apply & replaced by comparative neg. analysis completely

o
If P reasonably confronts known risk, she is not negl.  P
can recover fully
o
When P unreasonably confronts known risk, P’s neg. in
doing so reduces her recovery of damages (per comparative
fault analysis)
If D reasonably believes P has accepted the risk, D may not be negl. at all in
relying on P to achieve safety.
45

2. Qualifications: But old scenarios (that would have fallen merged
comparative negl. / I.A.R. analysis) may now be treated as creating no duty
owed to the P or a limited duty owed to the P.  same result as “all or
nothing” trad. I.A.R. rule.



D has complete defense when D’s negl. was an inherent risk of the
activity - D has no duty to prevent risks inherent risks of activity
Ex. sports players & spectators
Also has expanded beyond sports
IV. Statute of Limitations
1.) Accrual Jurisdic. SoL – harsh results for P
 SoL starts running at date harm actually happens. – When all elements of the P.F. tort
case are present.
o
Pure increased risk of future harm
 When P exposed to toxic chem.. w/ no symptoms, but it still increases
risk of future harm, i.e. cancer
 Present injury: Medical monitoring for cancer prevention; “fear of future
harm”
 If jurisdic recognizes this as leg. cog. harm, then AS SOON AS toxic
exposure happens, then that qualifies as harm  SoL starts running

P doesn’t have perceive injury yet / know that his injury was assoc. w/ D’s negl. conduct
/ that P has cause of action for SoL to start accruing

If settlement negotiations eat into SoL period, tolling agreement prevents D from raising
SoL defense on grounds of equitable estoppel;
o D’s incentive: wants to settle  avoid expense of pursuing litigation further
2.) Discovery Jurisdic. SoL
A. Models


MODEL 1: Accrual of claim does not begin (SoL pauses/tolled) until:
o
[1] all the elements of the actionable tort (intentional or negl.) are present; AND
o
[2] P discovers, OR a reasonable person should discover the injury.
MODEL 2: Accrual of claim does not begin (SoL pauses/tolled) until:
o (1) all the elements of the actionable tort (intentional or negl.) are present; AND
o
(2) P discovers, OR a reasonable person should discover:

[a] the injury AND
 [Some jurisdics: P must associate symptoms with a serious or
permanent condition ]

[b] That D was cause-in-fact of injury
46

MODEL 3: Accrual of claim does not begin (SoL pauses/tolled) until:
o (1) all the elements of the actionable tort (intentional or negl.) are present; AND
o

(2) P discovers, OR a reasonable person should discover:

[a] the injury [harm] AND
 [Some jurisdics: P must associate symptoms with a serious or
permanent condition ]

[b] That D was cause-in-fact of injury; AND

[c] That D caused the injury wrongfully [negligently ; or intentionally; or
other tortuous state of mind]
In summary, Discovery scheme very pro-P, avoids harsh results for P under accrual rule
B. Things that May Toll (Pause) SoL Period in Discovery Jurisdics.
1. Repression & SoL Accrual – Child Sex Abuse Cases
 Some jurisdics:
o Recog. repression theory in child sexual abuse cases brought decades after
incident
o Allow SoL to be tolled (paused) under discovery rule
 Other juridics:
o Reject concept that SoL should be tolled on grounds of repression
o Equate repression with “forgetting”
2. If you’re a minor when you were injured
 SoL doesn’t begin to accrue until minor turns 18
 Only applies in discovery jurisdics (b/c minor not yet “aware” of injury)
3. If you’re “of unsound mind” at time of injury
 Means person was unable to manage daily business affairs or estate; or
 Person was unable to to comprehend his legal rights or liabilities
4) Bars to SoL Defense – Equitable Estoppel Claim Elements:
 1) Delay in filing an action that is induced by the D; AND
 2) D misled the P; AND
 3) P must have acted on the information in good faith to the extent that he failed to pursue
his action in a timely manner
5) Limitations to SoL not based on accrual
A. The Notice Bar
 Statute may require P to give notice to D of his claim within a specific # of days prefiling legal action
 May be imposs. for P to file legal action until this requirement met & SoL may run in the
mean time
47

Ex. If notice must be given 30 days pre-filing the action, SoL effectively shortened by 30
days. So if P gives required notice 15 days pre-SoL has run, P can’t file legal action in
time, since he must wait 30 days after notice in order to sue. By that time, SoL will have
run & he won’t be able to sue.
B. Pre-accrual bar: Statutes of repose
 They make SoL clock begins ticking, even though P can’t sue yet, b/c P not yet injured
 If statute of repose is 10 years, it starts to accrue whenever tortuous conduct was
“substantially completed”
o ex. at time building negl. constructing
o This means P injured 15 years later cannot sue D, because statute of repose has
run, and already ran at point 15 yrs . later when P actually injured

Policy grounds:
o Certainty- Lobbied for frequently sued special interest groups) to promote
“certainty” that they wouldn’t be sued after certain point
6. Implications of Classifying Tort as Continuing vs. Permanent:

(In context of D’s intrusion on P’s property – ex. D’s chemical contamination continually
intruding on property; D’s house built in part over P’s property line )
A. Continuing or temporary (ex. False Imprisonment)

Accrual: claim does not begin to accrue SoL time until tortuous conduct has ceased
o Each’s day’s intrusion treated as new cause of action
o P can sue again and again if D’s intrusion continues.

Damages: limited only to those that arise up until time of trial (meaning P can’t sue for
future damages)
o No res judicata problem: P could theoretically sue over and over again if D’s
acts continue
o P usually just seeks prospective injunction to get D to stop tortuous activity
B. Permanent Tort

Accrual- SoL begins to accrue when intrusion 1st occurs, OR P discovered it OR should
have discovered it

Damages: P who isn’t barred by SoL recovers ALL DAMAGES , present & future

Suit is res judicata - P can’t sue again later for contd. damage.
o Implication: Once D has satisfied the judgment, he has “in effect bought the right
to continue the intrusion”
o Ex.if person builds house that crosses over my property line, I would win both
past & future damages (value of land w/o encroachment – value w/
encroachment)
C. Factors for determining whether tort is to be classified as continuing or permanent:
 **Does society want this tort, as a matter of public policy, to continue?
48
o
If no, labeled continuing, NOT permanent
 No res judicata - Moment-by-moment creation of new cause of action
incentivizes D from stopping the interference
o
If yes, labeled permanent
 Res judicata - After first suit, once D satisfies judgment, he’s bought
right to continue intrusion
D. SoL Policy rationales (310)
 Cases get stale over time –
o testimony will be lost altogether or cease to be accurate over time ;
o docs. Relevant to facts will have been destroyed;
o witnesses will have disappeared, died, or forgotten important details
 “Certainty” / “respose”
o SoL brings closure to a certain dispute
o After stated period, D can be sure no suit will be filed
 (ex. w/ regard for doctors/malpractice suits, avoid escalated malpractice
insurance premiums )
 (ex. businesses set aside $ for potential exposure to litigation – if they
knew after certain date exposure would be eliminated, they could
efficiently repurpose that $)
o In context of negl., law aims to judge person by “reasonable person standard
under the circumstances” of the time of the purported neg.
 A long time after the negligence incident actually took place, harder for
jury to assess reasonable person standard….at time of purported
incident ;
 “hindsight bias” – may require expert testimony of circumstances
unique to that particular time, many years before
Strict Liability : liability without fault (hist. background – see above under special duties of
care
**See under DUTY ABOVE FOR DOCTRINE***
A.
Strict Liability for Trespassory Torts and the Advent of Fault Theory
1.
Strict Liability Under Trespass at Early Common Law. Text

Orig. common law cts. in middle ages created S.L. w/ no enterprise liability policy
justifications of today (599)
o Writ system – if P wanted to bring suit in ct., had to fulfill strict template to have
cause of action
 Writ of trespass –
 had to be some direct application of force directed against person
or property;
 no intent required
 Civil trespass- no “felonious mind”(fault) or “harm” required
(S.L)
 Crim. trespass- did require felonious mind
 Writ of case – P does have to est. a) harm and b) fault
49



Much more flexible form of action than writ of trespass favored by attys.
Today, no actual harm needed for TTL today – legacy of writ of trespass
For battery & assault, sometimes no need for P to show phys. injury –“ “
2.
Strict Liability Applied and Signs of Change to Come. Weaver
o
o
- May be cases in which if D is without fault in directly applying force against
person or property (trespass), that might excuse D
1st step towards requirement of fault, even in case involving trespass (which was
trad. a S.L. tort) -- even in cases involving assault & battery (which evolved into
intentional torts, later requiring fault)
3. Change Arrives: Fault Theory Adopted. Brown




S.L. (no fault-based liability) is NOT basis for liability; some fault must
be required
 FAULT NOW BASIS OF TORT LIABILITY
That fault must be either:
 a) intent or
 b) negligence based on reasonable person standard, OR
 c) other form of fault – “unlawfulness”
o 1. Based on negligence per se – violation of statute
setting SoC
o 2. Other forms of intent – intent to commit offensive
(though not harmful) contact
S.L. still exists in residual form today – SEE ABOVE UNDER DUTY
ANALYSIS
4. Defenses to S.L.
a. P’s comparative negl. IS a defense today
i. . D can be strictly liable due to ab. dang. activity, but amt. P able to
recover may be reduced taking into account P’s comparative negl.)
1. § 25. Comparative Responsibility
If the π has been contributorily negligent in failing to take
reasonable precautions, the π’s recovery in a strict-liability claim
under §§ 20-23 for physical harm is reduced in accordance with
the share of comparative responsibility assigned to the π.
b. P’s assumption of the risk IS NOT a defense today
5. S.L. Policy rationale: Corrective justice
 D liable even though he acted reasonably & without fault
 Another person is also innocent and is injured (P)
 Even though D not legally at fault, D should pay person who’s more innocent than he is
b/c …
o it’s the “right thing to dO”regardless of whether liability yields social good;
50
o
“less innocent” party who operated the abnormally dangerous activity should
compensate P to put accounts right between the parties
Vicarious Liability
A. Basic Elements
**To prove vic. Liab. D was vicariously liable for main D’s tort, P only needs to prove these 2
elements. (NOT p.f. case for the tort w/ respect to the vicariousy liab. D)

1. Tortfeasor and vicariously liable D must be in actionable (special) relationship

2. Primary tortfeasor’s tort must occur within scope of actionable relationship.
B. Respondeat Superior

1. Tortfeasor and vicariously liable D must be in actionable (special) relationship
 I. Employer-employee relationship – definitely actionable
 II. Not as clear - “independent contractor”
 A. Some jds.: employer must have ability to actually control
independent contractactor for there to be actionable relationship
 B. Other jds use these factors:
o Did tortfeasor supplied own tools? (If so, no actionable
relationship)
o Was tortfeasor “ paid hourly rate” (suggesting employeelike status and employer’s vic. liab.) as opp. to by the job
(no vic. liablility)


III. clearly not employee OR actual control; but apparent agency creates
actionable relationship
 So long as P justifiably relies on tortfeasor’s apparent agency
(Ex. restaurant franchise), principal (ex. main corp. franchisor)
can be held vicariously liable /treated as “employer
2. Primary tortfeasor’s tort must occur within scope of actionable relationship.
o
i. Test- D’s tort is within scope of employment “if it’s foreseeable in light of
D’s operation or business or within torteasors’s job responsibilities & obligations”

i. Must be work-related dispute OR other work-related emo. involvement
with P.

ii. Tortfeasor’s motivating emotions must be causally attributable to his
employment
 Sexual torts on the job- A sexual tort will NOT be considered
within scope of employment unless its motivating emotions were
fairly attributable to a work-related event or condition (ex.
therapist-patient)
51

ii. “coming and going rule” – while employee commuting to & from
work, employer WON’T be vicariously liable (b/c it’s not within scope
of employment )

a. Exception 1:When trip involves incidental benefit to
employer (as opp. to ordinary commute) this rule doesn’t apply
& employer can be held vicariously liable.
o ex. worker traveling to distant labor market & employer
willing to pay for employee’s travel time & expenses

b. Except 2: dual purpose doctrine:
o in add. to just commuting, employee performs
concurrent service for his employer that would have
necessitated a trip by another employee if the
commuting employee hadn’t done it  so employer IS
vic. liab. from torts employee commits during
commute.
o

Variation: If [1] employee gains personal benefit AND
[2] is performing concurrent service for employer from
commute , then must determine predominate purpose of
trip by weighing employers vs. employee’s benefits
from trip….If predom. Purpose of trip:
 A. Benefit for employee,  no vic. Liab. for
employer (gen C&G rule applies)
 B. Persona benefit for employer- then employer
IS vic. liable (gen. C&G rule doesn’t apply)
iii. Frolic & detour rule
 Trad. rule: Any deviation (frolic) away from your job/ task,
employer not liable, but deviation (detour) toward your
employment does count as “within scope of employment”
o
Exceptions today:
 tortfeasor’s conduct that slightly deviates from
his work is to be expected;
 so long as such deviations are necessary for an
employee’s comfort, health, & convenience
while at work ARE within the scope of
employment So employer can be held vic. liab.
 Ex. eating, drinking, smoking, bathroom while
“on the clock”
C. Other Forms of Vic. Liab.
1. Partnerships
-If there’s distinct partnership business entity, “partnership” = employer.
-Tort of one partner committed within scope of the partnership means BOTH
PARTNERS PERSONALLY liable
52
2. Joint Enterprise
-J.E. exists where there’s:
(1) agreement, express OR implied
(2) common purpose
(3) community of interest
(4) equal right of control
[elements interpreted liberally- sometimes includes social venture if all elements
present]
-when persons outside the enterprise are injured within scope of joint
enterprise. - vicarious liab. imposed upon all members of joint enterprise
-When someone within the enterprise injured – no vicarious liability among all
enterprisers; just main tortfeasor liable
3. Conspirators
-Those who act in concert to commit tort = partners in tortious enterprise (& vicariously
liable for the other’s torts within the scope of that relationship)
-Same for person who aids & abets (encourages) tortfeasor’s commission of tort
D. Vicarious Liab. Policy
 ***Distributive justice a.k.a. enterprise liability** - Best rationale
o Employers in better position to redistrib. Costs of accident to whole community
through: incr. pricing of own products OR liability insurance,
o free market incentivizes businesses producing safer goods & services: if co.’s
cost of accidents high  higher prices  consumer will buy less of good 
business incentivized to make safe product
 Deterrence –
o employers could take steps to prevent accidents if there’s s.l. in these contexts –
if they have something to lose (ex. speed limiter on vehicle)
o (weak arg.)
 Deep pockets justification - Primary D won’t have deep enough pockets to pay
damages , as opposed to employer
 Trad rationale: employer had control over employee, so it’s fair to hold employer liable
 Employer has benefitted from hiring of employees…so it’s “right thing” that he should
also incur costs as “cost of doing business”
o If employee commits tort, even though employer not at fault, it’s more fair that
employer compensat P
o (also in recog. that often employee won’t be able to pay.)
o P (innocent)  D1 (tortfeasor, at fault) & D2 (employer, no fault)
o Corrective justice: P should recover something since he’s most “innocent “party
– right thing to do for employer to compensate him & in best position to ($$)
Misrepresentation

harm = purely economic
53
A. Theories of Liability- corresp. w/ different damages
 1.intentional tort (fraud claims) – party knows that their misstatement is false OR
recklessly believes it’s true/false
o
o
Requires scienter: (943)
 (1) D’s knowledge statement is false; OR
 (2) recklessness – means D just guessing - he knows he doesn’t
know misrepresented proposition
Privity issues ; when P NOT party to K with D but hurt economically by D’s
fraud.
 D on the hook for person w/ which D is directly in privity w/ (party
w/ whom D contracted); AND
 D liab. to entire class of persons to all persons to whom D has reason
to expect will rely on the misrepresented proposition (incl. parties
NOT parties to K)’
 Privity expands more broadly under fraud theory, than under negl

2. Negligence-based misrep. claim - party negligent (careless) as to truth of matter
represented
o Purely econ loss = leg. cog. harm
o Privity issues ; when P NOT party to K with D but hurt economically by D’s
fraud.
 RST: Liability extended to all those in a “limited group of persons
for whose benefit and guidance” D’s misrep.’ed info. is supplied….if
the transaction is similar to the one D expected to influence
 Sometimes mean specifically identifiable P

3. Strict liability misrep.
o Privity: Only person who has cause of action against D for misrep. Is person
w/ whom D contracts/ person to whom D directly privy to
B. Reliance and Related Doctrines
o
Regardless of misrep. theory, P most show:
 (1) actual reliance
 D’s misrep caused P to in fact rely on false statement /to engage in
transaction

(2) reliance was justifiable/reasonable
 Justifiable / reasonable – (P’s recovery reduced if P contributory
(compara.) negl. in context of negl.-based fraud)

(3) reliance must be material
54
C. Duty to Disclose

omissions – passive, failure to tell the truth (as opp. to affirmative misrep/telling
someone falsehood)

Gen. Rule: no duty to disclose
o ***Exceptions*** - trigger duty to disclose
 i.Where seller actively conceals defect or prevents investigation

ii. Where seller has told half-truth OR has made ambig. statement
if seller’s intent is to create false impression AND he in fact does.

iii.Where there’s fiduciary ($) relationship between the parties

iv. Where facts are exclusively within knowledge of ONE party to
the transaction AND The other party is not in a position to discover
the facts for himself- imbalance in bargaining power/knowledge –
 When vendor is skilled & knowledgeable and purchaser is
not
 buyer in poor position to discover non-obvious condition,
and
 buyer may justifiably rely on knowledge & skill of the
vendor
 (ex. real estate deal)

v. When either party to a K of sale conceals or suppresses material
fact which he’s in good faith bound to disclose

vi. RST 551 2d Party to a transaction under duty to disclose “facts
basic to the transaction if:”
 i. He knows the other is about to enter into it under a
mistake as to those facts; AND
 ii. The other, b/c of the relationship between them, customs
of trade, or other objective circumstances, would
reasonably expect a disclosure of those facts
- “facts basic to the transaction” = goes to the essence of
the transaction; is an important part of the substance of
what is bargained for