
TORTS
Goals of tort law
o want to compensate plaintiff
o deterrence for negligent or wrongful activity
VICARIOUS LIABILITY


Respondeat Superior: employer is vicariously liable for negligence of employee while
employee is acting in the scope of employment (Christenson v. Swenson)
o Policy
 Prevent future injuries
 Assure compensation…spread losses (fairness)
 Incentive to discipline/supervise
 Successful suit may deter business for tortuous behavior and give them
an incentive for better future behavior (hiring policy)
o need all three criteria to establish what is the SOE: Birkner Test
1. ee’s conduct must be of the general kind that they were hired to perform
2. conduct must be within hours and ordinary spatial boundaries of
employment (generally not if you are driving home from work, etc;
employer loses control as you get later after operating hours and location)
3. conduct must be serving the employer’s interests (Swenson was trying to
be efficient and needed to eat to be effective on the job to help company)
o SOE is highly contextual, and for a jury to rule on (where reasonable minds could
differ—Christenson)
o if intentional tort by e’ee, usually they are not hired to do that, and often they are
not doing it for employer (what is the drive? are you personally motivated?)
o start with E’ee tort  then look at VL
Apparent Authority (Roessler v. Novak)
o Principal: hospital; Agent: doctor; Third Party: patient suing
o Three elements must be present for apparent agency:
1. representation by the purported principal (seemed like doc was an
employee of the hospital)
2. reliance on that representation by third party (relied on hospital to make
a good decision for him)
3. change in position by third party in reliance on representation; you
would have acted differently had you known the truth (issue is that
patient could not really change his position)
o Restatement does not look to D’s conduct, but to P’s reliance
o Apparent authority exists when principal creates appearance of an agency
relationship
o AA is mostly a question for the jury and based on “reasonable belief”
o Concurrence looks to “nondelegable duty”: hospitals s/b VL for activities w/i the
hospital where the patient cannot and does not realistically have the ability to
shop for another provider
 hospital is in better position to assure adequate service providers
 this has to be an agreed-upon test
Independent Contractors
 Generally you cannot sue an employer for the tort of an IK
 Policy
o Doesn’t make sense to go after the company because they have less
control and understanding of the work of the independent contractor
o Consumer expectations are different
o Insurance/Business Management
o Fairness
 You want to be able to hire an independent contractor to have a
job done more adequately, without concerns of liability
 Both parties benefit
 Seems fair to spread risks to those actually doing the work
 Exceptions
o Employer’s own liability
o Non-delegable duty
o Inherently dangerous activities
_________________________________________________________________________________________________________
NEGLIGENCE
1. DUTY




Misfeasance (an affirmative act which harms or endangers P) v. nonfeasance (a mere
passive failure to act)
o Commission makes it easier to find duty, for an omission you have to prove
an affirmative duty
Matter of law for the judge to decide
on exam: treat like a yes/no question—is there a duty of care?
o then breach will be what the D should have done (what the standard of care
should be)
in most cases, we will be owed a duty of care
o could be policy reasons for no duty
o why do we have no duty of care for inaction? autonomy, you could make the
situation worse
Affirmative Obligations to act
 Affirmative Duty to Aid (Harper, Farwell)
o Harper
 failure to warn about the shallow water: omission
 omission: no duty, except a special relationship
 social host has no special relationship with guest; when no special
relationship exists, NO DUTY
 superior knowledge alone (with no duty) does not establish liability
 cannot go around and impose duty on others independently
o Special Relationships:
 if P is in a vulnerable position (doctor/patient)
 Good Samaritan rule for physicians to stop and assist at accidents
 custodial duty: parent/child
 common carriers, employer/employee, landlord/tenants
o Creation of Risk (negligently or not—some juris; historically N creation): you
have a duty of reasonable care to prevent/warn/minimize harm (because you
are putting them in a position that they would not have otherwise been in)
o Farwell
 duty to co-adventurers; companions on a common undertaking
 if this special relationship exists, and one party knows of the peril that the
other is in and could give assistance w/o endangering himself, then there
is an affirmative duty to come to the aid
o No general duty to rescue: we want to deter inept rescue
o HOWEVER: if you begin rescue, you must proceed with reasonable care; cannot
stop aid or leave person in worse position than when you began rescue
 some juris: if you leave worse off, you have a duty

Affirmative Duty to Third Party (Tarasoff)
o Sometimes when special relationship between two people will create a special
relationship with a third (therapist and patient relationship; special relationship
between therapist and patient’s acquaintance)
o public policy: unnecessary warning is a reasonable price to pay if some victims’
lives are saved; confidentiality privilege ends where public peril begins
o must be limited to specific threats (i.e. naming the person)/identifiable victims
(but some jurs say reasonably FOS) (minority say no duty)
o concerns: therapy will be ineffective without trust; a lot of it is just venting =
hard to predict; burden for getting to 3rd party
o jury will decide what the duty was; only rule here is that the duty existed
o might look like he began to rescue when he called the police

Policy Basis for Invoking No Duty (Strauss, Reynolds)
o Strauss
 Failure of CE Elec. Led to NYC blackout. P fell in common area of building
where landlord paid for electricity. Court held permitting recovery to
those in P’s circumstances would violate the court’s responsibility to
define an orbit of duty that places controllable limits on liability
 electric company should not be answerable to the tenant for negligence of
landlord
 Policy is crucial here: avoiding “ruinous liability”; liability cannot be
contained to manageable levels; no reasonable opportunity for these Ds
o Reynolds
 when social hosts serve minors with alcohol, they do not owe duty of care
to third parties for injuries
 omission argument: failed to card
 commission argument: they provided the alcohol
social hosts are not as able to monitor consumption as, say, commercial
vendors (also no profit motive like comm. vendors, and no ability to pass
costs on)
 liability would affect almost every adult
 policy: it is going to be much to burdensome
 Dram shop acts: impose liability on commercial vendors for harm
resulting from intox when they over serve
o in an exam go after the obvious parties first!! victim would go after the drunk
teen first! then talk about the social hosts
 Landowners’ Duty to Occupiers (Carter, Heins)
o Key points
 Liability based on condition of land/property is generally imposed
on possessor of the land
 Rather than the owner
 This is because possessor is best situated to control condition of
land
 Limited duties generally apply only to injuries to someone who comes on
the property…if conditions of or action on your land cause injury to those
outside your property
 Ordinary principles generally apply
 OR sometimes SL principles apply
 Rationales for limiting duty to those who enter your land as
compared to those off your land:
o Individualism concerns
o Notion of sanctity and privacy of home
o Right to use your home as you choose
o Three classes of plaintiffs (NOTE: STATUS CAN CHANGE):
Definition
Duty of Care
Trespasser
All entrants unless given
No duty of care
permission
Invitee
Material benefit; open to the Duty to exercise reasonable
public; some juris: are you
care to protect visitor
having a business
against known and “should
relationship (some juris
have known of” dangers, and
limits to landowner gets the those revealed by
benefit)
inspection.
Licensee
Visitor with permission, but Duty to make safe dangers of
no material benefit to
which possessor is aware.
defendant OR land is open to
the public
 Duties Owed to Trespassers
 No duty of reasonable care regarding conditions of or activities on
premises
 Often, duty to refrain from intentional, willful, and wanton conduct

Exceptions
 Discovered trespasser
o When possessor knows that T is on property, there is a
duty to refrain from intentional, willful, wanton injury
o Some courts:
 Duty to use reasonable care, particularly where risk
is from activity on, as opposed to conditions of,
premises
 Rationale: misfeasance v. nonfeasance decision
 Frequent trespasser
o E.g., person who regularly cuts across your lawn
o Some Js
 Duty to warn of hidden dangers
 Duty of reasonable care to avoid harm through
activities
o Other Js
 Also duty of reasonable care for conditions or
premises
 Rationale: begins to look like tacit permission,
merges in licensee
 Child trespasser
o liability if:
 Possessor knows or should know children are likely
to trespass
 Possessor knows or should know that condition
poses unreasonable risk of death or serious bodily
injury
 Children do not discover the condition or realize the
risk of condition
 Utility of maintaining condition and burden of
eliminating it are slight compared with risk AND
 Possessor fails to exercise reasonable care to protect
children
 Rationale: trespassing children are FOS, whether or
not enticed; traditional rationale… “attractive
nuisance”
Duties owed to licensees
o Sometimes its hard to distinguish Ls from Ts
 E.g. if possessor does not stop people from taking a shortcut, may
lead to jury question regarding status
o Permission may be implied from
 Possessor’s conduct
 Or from condition of property
o Licensee is expected to accept premises as possessor maintains them
 May be entitled to be warned of known conditions


No duty
 To inspect premises
 To discover dangerous condition
 Or to make premises safe for the visit
 Carter v. Kinney
 P slipped on ice on D’s driveway. Court held that Ds had no
duty to protect P, a social guest, from unknown conditions
because he was a licensee. Social guests are classified as
licensees because there is a common understanding
that the guest is to take premises at the possessor uses
them and does not expect preparations regarding his
safety, etc.
o Some Js
 May be duty
 To warn of known hidden dangers; duty to make safe
known dangers
o Some courts impose duty of care regarding activities on, as opposed to
conditions of, land
 Operating machinery; Backing up a car, etc.
Duties owed to invitees
o Possessors owe an affirmative duty of care:
o includes:
 to discover dangers
 to protect against dangers of which possessor is or should be
aware




Heins v. Webster Co.
o removes the distinction between licensee and invitee (don’t assume this
for an exam though—it is a slight majority)
o requiring standard of reasonable care for ALL lawful visitors (keeps
trespassers separate)
o eliminates complexities of distinctions
o concern with elimination: having to take more care than you would
otherwise take
o 7 factors to determine whether a landowner or occupier has exercised
reasonable care (breach):
 Foreseeability
 Purpose of visitor’s entry
 Time, circumstance and nature of entry
 Use to which premises are put or expect to be put
 Reasonableness of the repair, inspect or warning
 Opportunity and ease of repair, correction or warning
 Burden on plaintiff in terms of inconvenience and money
Immunities (NO DUTY)
o
o
o
o


spousal immunity: abolished
parental immunity: abolished
governmental
charitable
Intrafamily duties (Broadbent)
o parental immunity judged with the “reasonable parent test” standard; if they
owe a duty to the rest of the world, the child can then sue (some Js)
 breach is changing
 technically eliminating parental immunity
o if the child can’t sue the parent, then the government (other 3rd party) cannot
sue parent either
o rational parent test takes into account different parenting styles, norms, and
expectations
o **not an affirmative defense, it is ELIMINATING a component (saying NO
DUTY)
o Earlier reasons advanced for parental immunity- Court thinks these are weak
reasons
 Domestic tranquility
 Court says injury to the child disrupts more than a lawsuit
 also might help the family if money is awarded
 Danger of fraud
 Court says this is present in all lawsuits
 jury can figure this out
 Deplete family resources
 Court says the opposite is true because insurance money will
come to parents
 Benefit the parent
 Court says this is a problem for probate court and inheritance,
not for tort law
 Interference with discipline
 Court hints that parents can be sued for intentional torts
Governmental Entities
o GI is now the exception rather than the rule, but there are exceptions
o varies by jurisdiction, and by type of government
o Bottom line: you cannot sue them unless they say you can
o immunity when offering protection from external hazard-protecting the
public
o Riss v. City of NY
 P repeatedly asked for protection from crazy ex-boyfriend, courts said
she could not sue
 essentially treat gvnt’s like citizens: no duty to affirmatively act
 allocation of resources problem; not wanting to have judicial brance
interfere with executive branch
o Exception to governmental immunity doctrine






Reliance: when they make a promise
Police sought out help, and people responded; in doing this, they
create a risk
when police are witnessing harm or beginning to aid
NY rule for 911: direct contact with victim + reliance
Special relationship
 Assumption by municipality of promise or action to act on
behalf of party
 Foreseeability
 Direct contact between government agent and injured party
 Reliance
Duties to Avoid Emotional Harm
o must have no physical injury!! or emotional distress that causes physical harm
o tough areas:
 physical harm is a result of ED
 bystanders have ED
Direct Victims
o Falzone v. Busch
o D’s husband was struck by a car in front of her.
o Court held that where negligence causes fright from a reasonable fear of
immediate personal injury or sickness, the injured person may recover if
such bodily injury or sickness would be regarded as proper elements of
damage had they occurred as a consequence of direct physical injury rather
than fright.
o could have also been indirect victim as well (watch
o Elements you must show (Zone of Danger test):
 reasonable fear of
 immediate harm
 some division on this element
 that results in severe emotional distress (substantial bodily injury)
 permanence or evidence that it is severe
o Also must be in zone of danger (must immediately fear for her own safety,
and not of someone else’s
o must have proof
o Policy
 Medical evidence suggests relationship between emotional
disturbance and physical injury
 Fraud may come up in all tort cases
 Difficultly of proving causal connection should not bar P’s recovery
 Expansion of “judicial machinery” in reaction to the impending flood
of litigation
 However, overdeterring remains a pertinent issue
o Gammon (minority approach—stretching)
o P was sent what he thought was his father’s severed leg
o Exceptional vulnerability of the family of recent decedents makes it highly
probable that emotional distress would result from mishandling the body.
Therefore, defendant reasonably should have foreseen that mental distress
could result from his negligence.
o Elements:
 ordinary person (especially a vulnerable victim) (FOS)
 high probability of severe emotional distress
o Emotional eggshell cannot recover for NIED because its psychological damage
Indirect Victims
o Portee v. Jaffee
o mother sees child die in elevator shaft
o duty to avoid inflicting ED on third party if:
 close relationship
 P witnesses accident (contemporaneous observation)
 are near the injured person
 death or serious injury to third person dt D’s negligence
 severe emotional distress (not if extraordinary reaction to less
serious injury)
o Loss of consortium
o Historically only the husband could recover for loss lost of consortium
o has roots in economic loss (what is the value of a lost wife)
o Parents usually can recover from lost of children
 Historically rooted in children being economic assets
o now it is rooted in emotional distress of sorts
o Courts reluctant to allow recovery for co-habitants on grounds of loss of
consortium
o Courts are divided on whether or not to allow kids to recover for the death of a
parent
o Scherr v. Hilton Hotels Corp.
o no recovery for wife watching television showing fire in hotel her
husband was staying at
 she perceived endangerment, rather than injury
o courts are divided on whether or not people should be able to recover from the
mistaken perception of a loved one’s serious injury or death
o i.e. injury not as serious as it seemed
Economic Harm (from online outline—not sure if needed)
 Duty of lawyers to clients
o Meeting filing deadlines
 Good claims exists for legal malpractice
o Making strategic choices
 Court not likely to allow such claims
 Expert testimony would be necessary
o Recommending settlements
o Criminal cases
 P who had been convicted of a crime could not sue his defense
attorney for malpractice without proving that he was innocent of
the underlying crime
o Emotional distress
 Usually not likely, recovery for legal malpractice is often
grounded in economic harm
 However, other courts have suggested that when the attorney is
retained for non-economic purposes, such as criminal defense,
adoption proceedings, or marital dissolution, damages for
emotional distress may be foreseeable and may be recovered as
one item of damages
_________________________________________________________________________________________________________

2. BREACH
Adams test OR Hand test… don’t need to do both
Historical Development of Fault (Brown v. Kendall)
 Two dogs fighting. Owner of one of the dogs took a stick and in the process of
beating the dogs to separate them, struck the plaintiff in the eye, inflicting a
severe injury
 Judge moves away from fault requirement (historically writ of trespass) and
starts to discuss “ordinary care” (“that kind and degree of care, which prudent
and cautious men would use”; also s/b contextual)
 burden of proof should be on the P to show D’s negligence
 in order to be liable for accidental, lawful harm, one must be found to lack due
care
Factors to Assess Reasonableness
 Adams v. Bullock
o Boy’s guardian filed suit for his injury resulting from swinging wire on bridge
above trolley line and was shocked when wires touched. Court held that jury
trial should not have even existed because there was insufficient evidence of
fault.
o Sets standard of due care; D’s ordinary precaution could not have expected
this extraordinary accident
o when D has taken all precautions to avoid risk during a lawful activity and
the harm was unFOS, then D could not be held liable
o if D was liable, it would be treating them as an insurer for harm that they
could not forsee
o Adams Factors for due care
 custom
 foreseeability
 reasonable anticipation of harm
 likelihood
 feasibility (cost, effectiveness, burden, possible alternatives)
 social value of the activity
 lawful act
 magnitude of harm
 US v. Carroll Towing
o Defendant was negligent in securing the Connor’s barge. The barge rammed
against a tanker, and sank. United States is seeking compensation for its flour
on board, while Connors is seeking recovery for barge.
o Hand Formula
 B < PL = negligence (breach of standard of care)
 P- probability (FOS)
 L- injury (magnitude of harm)
 B- burden (feasibility, value of activity)
o bargee should have been on boat, or they could have hired another bargee
o Policy:
Advantages:
 Economic efficiency (won’t pay $5 to avoid $2 of damage)
 The equation attempts to capture the community standard and is
simple
 Limits duty – not liable every time an accident occurs
Disadvantages:
 Immoral to put a cost on life – not everything can be put into
monetary terms, we will take risks for the social value; don’t want
to be reduced to this and the equation makes us do this
 Assessing value is difficult
 Hard to apply to individuals
 Information costs in assessing value (administrative costs)
 Juries cannot use this equation, so it’s not real life
Reasonable Person Standard
 external, objective evaluation
 consider reasonable person in like circumstances
 Exceptions to the reasonable person standard
o Children: SOC – reasonable child with that age, intelligence, and experience
 In some states, children < 6-7: conclusive presumption (can’t
comprehend risk); and 7-14: rebuttable presumption (can’t
comprehend risk)
 When engaging in adult activities, however many jurisd. hold children
to regular standard (kids driving)
o Common Carriers (Bethel changed (in NY) this because it is outdated to hold
them to higher SOC)
 highest SOC (B < PL + x) is very vague; sets standard to “whatever you
can do” regardless of cost
 Highest Standard of care for parents whose children cause damage:
Wood v. Groh (2000): Father had a gun and ammunition in the locked
cabinet. 15 year old son broke into the cabinet and took out the gun
and ammunition, and shot plaintiff. Court ruled that father should be
held to the highest standard of care and it does not matter if the
cabinet was locked because amm was in there
o Emergency: SOC- person in the same emergency situation. Some states reject
this though.
o Distinct, Apparent, Physical disabilities- SOC as a reasonable person with that
disability
o Sudden disability
 Hammontree v. Jenner
 Court held that SL will not be applied to drivers who cause
harm as a result of seizure-induced accidents
 No exception because of
o Mental disability (hard to prove; risk isn’t apparent to warn others; policy
issues: gives incentives to caretakers); sometimes total insanity is an
exception
o Gender (may lead to marginalization)
o Elderly (what is the cutoff? they have already learned concepts of
reasonableness
Role of Judge and Jury in Assessing Negligence
o Judge decides law
o if reasonable people would not differ on facts (no need for jury)
o determining what the duty was (if any)
o role of jury:
o decipher facts
o Andrews v. United Airlines
o briefcase fell out of overhead compartment and injured P
o Common carrier have heightened duty, so even small risk of serious injury
may form liability (Note that this is California jurisdiction, not Bethel’s New
York)
o Defense has not demonstrated that the burden of additional measures would
be prohibitively high or that it would be inconvenient for customers
 Jury could find that United failed to everything all that “human care,
vigilance and foresight reasonably can do under all the circumstances.
o needs to go to jury to determine
Role of Custom
o should just serve as a guide; does not define the standard of care (some evidence,
but not conclusive)
o must look at purpose of the custom: is it to protect the public/individual, or just for
aesthetics?
o look at it’s reasonableness
o custom show feasibility (must be feasible if everyone does it)
o shows FOS: was the custom about preventing a certain type of danger?
o Trimarco v. Klein
o Landlord left older shower doors in apartment bathrooms. Court held that it
is for jurors to decide whether evidence presented establishes a general
custom or practice
o Ignorance of customary safety measure MAY establish liability, and
accordance MAY defend against it
 Customs help develop reasonable expectations, but cannot define
them
 cannot look at this particular actor, but landlords in general
 What’s usually done may be what ought to be done is defined by a
standard of reasonable care, regardless if it what is usually done or
not
 We cannot presume that customs are reasonable
Role of Statutes
o Note: violating statutes is ONE FACTOR/SOME EVIDENCE for proving contributory
negligence (similar to use of customs)
o look at the statute’s purpose: not enough to just violate a statute, but it has to be one
that is intended to protect against risk (is it generally about preventing harm, or is it
about just keeping the peace; what type of harm is it trying to prevent—look at
narrow and broad interpretations; what type of P is it trying to protect)
o unavoidable/unexcused accidents might be a different story
o if it’s avoidable, and it’s a safety statute, it is NEGLEGENCE PER SE
o Not clear how many excuses would be allowed
 4 variations of negligence per se:
1. Pure negligence per se
 Bright line rules
 gives jury least amount of freedom
 minority view/more historical…. Martin v. Herzog
 Three requirements:
 D violated a statute
 The statute was designed to protect against the same type
of accident that D’s conduct caused; and
 The accident victim (presumably P) falls within the class or
persons the statute was designed to protect
2. Negligence per se with excuses (most common)
 Usually judge decides what counts:
3. Rebuttable presumption (most common) for Prima Facie negligence
 Usually jury decides what counts
 Rebuttable presumption- claim made by P which D must rebut in
order to avoid liability
 if D offers such a rebuttal, P still has to burden of proving
negligence
 Some evidence (gives most freedom to jury)
o Martin v. Herzog
o P and husband were driving in buggy. Killed by D’s car coming in opposite
direction
 P: D did not keep to right side of road
 D: P did not have lights on (evidence refused in trial)
o When there is a unexcused violation of a statutory duty, and the statute is a
safety statute, the defendant is negligent as a matter of law and there is no
jury question on the matter of breach.
o Impson v. Structural Metals
o Court held defendant truck driver liable for injuries incurred by P because he
violated a statute intended as a safety measure and said violation was found
to be of proximate cause to P’s harm
o P: driver was passing too soon (points to criminal statute that prohibits it)
o D: intersection sign was not visible
o Court found negligence per se for D
o Where are there excuses? The second Restatement:
o violation is reasonable because of the actor’s incapacity
o if they don’t know the occasion for compliance: if your tail lights aren’t on,
but you don’t know that they arent
o unable after reasonable diligence or care to comply: tire blowing up and
roads are bad
o if confronted by and emergency not due to his own misconduct: avoid hitting
a child
o compliance would involve a greater risk of harm to the actor or to others:
pedestrian walking rules if it seems safer to walk on the other side
o Licensing statutes:
o drivers licenses: not really relevant to what you did, and not causally related
(getting in an accident was not because of the license)
Proof of Negligence
o need to prove conduct and standard of care
o most time, all you have is circumstantial evidence; lawyer needs to
investigate
o Circumstantial evidence:
o Negri v. Stop and Shop
 circumstantial evidence about time lapse and dirty food on floor—
sufficient for a jury question
 can look at dirty food (jars were on the floor for a while—maybe)
 theory of n brought: constructive notice: shop should have known—
but insufficient evidence
 ***deciding on evidence, we must look at the case in the light most
favorable to the losing party; if not enough evidence, then case should
be dismissed
o Gordon v. American Museum of Natural History
 to show evidence of constructive notice, the evidence must be visible,
apparent, and must exist for a sufficient length of time prior to
accident
 no evidence in the record to support this and case should have been
dismissed
o Res Ipsa loquitur
o RIL is a jury question!
o Key: trying to figure out the story and trying to fill in the gaps
o Elements
 accident would normally not happen without negligence
 usually freakish or improbable
 negligence is attributable to defendant (instrumentality was under
the D’s control)
 conduct of P or other Ds are eliminated by the evidence
 show the cause was D more likely than not
 P cannot have contributed
 only in some juris
 why did it make sense in the past but not here? we don’t really
have comparative negligence anymore
 explanation of event must be more accessible to D than to P
 only in some juris
 based in fairness argument
 not likely to be controlling factor
o Byrne v. Boadle
 Person passing by store struck by barrel of flour, which fell from
window in defendant’s shop; he had no recollection of how it fell from
the window. No warning given.
 barrel would not have rolled out without negligence
 based on prima facie evidence (rebuttable presumption)—
 D has to prove that it was not them
 without rebuttal, P still has burden of persuasion
o McDougald v. Perry
 Plaintiff driving behind a tractor-trailer driven by defendant. The
spare wheel of the trailer came off and bounced into the air and
crashed into the windshield of plaintiff’s Jeep.
 do not have to disprove all other possibilities
 not rebuttable presumption, but permissible inference (majority)
 D will not present evident
 P has burden of persuasion
 use common experience/general knowledge
 sometimes have directed verdict is evidence is so
overwhelmingly in favor of P… or if D destroys inference
o MULTIPLE Ds: Ybarra v. Spangard
 Group of doctors and nurses performed appendectomy on the
plaintiff. Following operation, he suffered paralysis and atrophy of
muscles around the shoulder. Plaintiff sues all doctors and nurses.
 trying to combine alternative liability and
 special case: when the instrumentality that caused the harm is
unknown, and the d’s are the only one with access to evidence, RIL
 stretches the rebuttable presumption
 minority approach
 ruling makes you liable for negligence of team—should
provide incentives to make sure team is careful
 each person must rebut the evidence
Special Case: Med Mal
 Sheeley v. Memorial Hospital
o national standard of care upheld; discards the locality rule
o reasoning: family practitioners should be held to the same standard of care
as specialists; nationalization of communication, education
o POLICY rationale: may help break the conspiracy of silence within local
medical communities
o competency of expert witnesses to be determined by a judge; need to assess
the knowledge of the field, not that they are in the same field
o custom is basis of SoC in medicine
 generally need expert witnesses
 Informed consent
o without physical damages, you cannot recover
o not dignitary harm: the harm in not being able to make the decision
o Matthies v. Mastromonaco
 81 year old plaintiff fell in her apartment and broke her right hip. Defendant

orthopedic surgeon prescribed bed rest rather than surgery. Plaintiff’s right
femur displaced, her right leg shortened, and she lost ability to walk. Plaintiff
was not informed of her options.
physician has duty to inform patient of all “medically reasonable” alternative
courses of treatment/risks, even if non-invasive (look to reasonable doc—
slight majority; or reasonable patient for what is material)


duty considered an omission, but is overcome by special relationship
POLICY: increase patient autonomy
for patient to recover, they need to show that they would have chosen the
alternative treatment (causation)
 maj: objective reasonable patient
 minority: subjective test
3. CAUSATION
o For each case, need to show actual cause + proximate cause
Cause in fact – Actual Cause
 But-for Causation
o “but-for” D’s negligence, the injury would not have occurred/ sine qua non
o Stacy v. Knickerbocker
 P brought three claims: failing to erect a fence around the thin ice;
failing to notify its employees of the location of the thin ice; failing to
keep ropes and other equipment near the lake to pull the horses out
 had all of the precautions been taken, they would have not saved the
horses
 Lack of Particularistic Evidence
o Stubbs v. City of Rochester
 P contracted typhoid fever says that it was the city water; unable to
prove direct cause
 court: if P establishes fact from which it can be said with “reasonable
certainty” more than 50% that the direct cause was the one for which
D was liable, then P doesn’t have to disprove all other causes
 jury question
 important to determine if the negligence caused P’s typhoid, not the
other 51 people’s typhoid
o Deterrence (look at handouts…)
 100 Ps w/ typhoid, 75 are new
 probability D caused harm: 75%
 compensation to each: $100
 optimal compensation? 25% overcompensated, 75% optimal
 overall payments: $10,000
 amount harm caused: $7,500
 optimal deterrence: overdeterred
 100 Ps w/ typhoid, 25 new
 probability D caused harm: 25%
 comp to each: $0
 optimal? : 25 undercomp, 75 optimal
 overall: $0
 amount harm caused: $2,500
 optimal deterrence: underdeterred
 Loss of Chance (but-for cause)


o Matsuyama
 argued that because of doctor’s negligence, he lost the chance to have
timely testing and treatment
 if patient goes from 70% chance survival down to 10%, then it is 60%
loss of change, which is greater than 50% = wrongful death
 these cases you would get full recovery
 don’t use LoC doctrine here
 rationale for LoC
 going to doctor to increase chance
 if you don’t die, you should still be able to recover because the INJURY
is LOSS chance; HOWEVER: no court does this
 must prove by a reasonable degree of medical probability
Alternative Liability
o Summers v. Tice
 Ds negligently shot P. court held that burden is on each of the Ds to
show that it was the other’s shot which hit P. D’s “brought about a
situation where the negligence of one of them injured P, hence it
should rest with them each to absolve himself if he can.” Otherwise, P
might be left remediless
 when two or more defendants are acting in concert and both are
negligent, alternative liability allows P full recovery (jointly and
severally liable)
 “substantial factor”
 difference from Ybarra
 Ybarra is dealing with breach, while AL is dealing with
causation
 using rebuttable presumption for two different things
Multiple Defendants/Joint and Several Liability
o alternative liability: all were negligent, but we don’t’ know who caused the
harm
o a way to get to but-for causation
o Joint and Several Liability
 If more than one person is the proximate cause of P’s harm, and the
harm is indivisible, then under the traditional common-law rule,
each D is liable for the entire harm. The liability is said to be “joint
and several.”
 JSL
 Each of D is L for full amount of P’s damages
 P cannot recover for more than the allocated amount
 Ds may be sued singly or with the other tortfeasors
 Applies only to single indivisible injury
 P is only entitled to one satisfaction of his claims
o Example
o D1 and D2 jointly caused $2000 damages
o P sues and gets a judgment against D1

o Under JSL, how much can she recover from D1?
o $2000, assuming D1 has the resources
o Under SL, how much can she recover from D1?
o Only some portion of the damages
o How damages are divided up depends on jurisdiction
o May be pro rata (1/2)
o OR based on percentage of degree of fault
Market Share
o Hymowitz
 Argument for AL: s/b D’s responsibility to prove they weren’t the one
that caused damage to the specific mother because they have better
access to info; HOWEVER, seems less fair because the pool of Ds is
getting too big
 NY approach: several liability based on market share
 rationale: compensation and ***deterrence
 No exculpation: this is inconsistent with tort law; the only way to
exculpate is if you can prove you only marketed the pill outside the
group of pregnant women
 you can inculpate (parties show that someone else caused the
problem); full damages if P can show causation; creates
overdeterrance
 P may not get full damages: some Ds might be out of business, others
may exculpate, but that is OK because D is only responsible for their
proportionate share of the harm
Proximate Cause (legal cause)
 related to duty (duty is decided by a judge)
 a mixture of law and fact, but this is mostly a jury question—if you want to avoid
jury, then just say it is a breach of duty
 looks to whether the wrongfulness of act and Ps harm are connected
 factors:
o FOS of
 harm
 type of harm
 extent of harm
 manner of injury
 P
o directness
 are there intervening causes?
 how direct is the act from D’s original acts: time/space
 often there are multiple causes… do these cut off liability
 Benn v. Thomas
o Plaintiff died of a heart attack six days after he suffered from bruised chest
and a fractured ankle in a motor vehicle accident caused by defendant’s
negligence



o Eggshell P rule: liability for the full extent of damages, not just those FOS to
the D
 take the P as the D finds him
o what is UnFOS: extent of harm (injuries expected, but not death); type of
harm (thought he might just break an ankle, not die)
o what is FOS: harm, P (he is driving in the car)
o independent intervening causes may cut off liability (lighting hitting
ambulance on way to hospital)
Polemis
o D negligently dropped a plank into hold while unloading it… plank struck
spark and ignited ship (filled with benzene), that was later destroyed
o rule: “as long as the damage is directly traceable to the negligent act, and
NOT due to operation of independent causes”, causation is found
Wagon Mound (majority approach)
o oil spill from WM caused sea to catch fire
o burning is unFOS, but slipways messy is FOS
o rule: FOS type of harm (burning was not FOS here).. Polemis overruled
o D should only be responsible for FOS consequences of his act because they
have to be judged from the reasonable person standard
When property, use WM; when personal, Benn’s eggshell P rule applies
Superseding causes
 Doe v. Manheimer
o Plaintiff was raped by unidentified assailant on defendant’s property at 8 am
in an area that had considerable overgrowth that shielded her from public
view. Plaintiff suffered serious emotional and psychiatric problems
afterward, requiring hospitalization, and attempted suicide.
o Three questions:
 is the conduct a substantial factor
 is it in the scope of the risk
 is it reasonably FOS
o if P is n, then it will only reduce damages, nut cut off liability
o here we are not FOS-ing the rape; rather, it would be something like it
scraping you
Unexpected Victims
 Palsgraf
o Plaintiff was standing on defendant’s railway platform. Two men ran to catch a train
and a guard on the car and a guard on the platform helped the second man get in
but, in the process, the man’s package fell and exploded because it contained
fireworks. The shock of the explosion threw down some scales at the other of the
platform many feet away, which injured plaintiff.
o Cardozo looks to scope of danger; P is not in the zone of danger because she was so
far away—he wants everything to center around duty (minority opinion): once we
find a duty and you breach it, it doesn’t matter about how weird the outcome is; if
you are in the scope of FOS, liability exists
o Andrews (Dissent/majority)—looks at proximate cause


duty to the world at large once you act affirmatively
factors:
 natural and continuous sequence
 substantial factor
 direct connection
 without too many intervening causes
 not too attenuated
 is the cause likely + is the result too remote from the cause
 FOS
 time and space
_________________________________________________________________________________________________________
DAMAGES

Compensatory (Personal Injury/Property Damages)
o goal is to “make the P whole” or “return the P to her pre-injury condition”
o problem of commodifying life, limb—but no better alternative
o prove past and future (reasonably probable) damages
o may be a windfall for either party
 P windfall if recovers damages for future harm that doesn’t happen
 D windfall if P doesn’t recover damages for future harm that happens
o Future disease
 can usually recover if future disease is “reasonably probable”
 difficult to prove if you have to wait years
 P could get damages even if disease doesn’t develop…could deplete D
of money to pay those who do get disease
 most common approach is “two-disease” rule: allow P to sue for
second disease when it develops
 some bar recovery under single recovery rule even if future disease
develops
o Elements of Compensatory Damages
 Economic losses:
 medical expenses (past and future)
o requires expert medical and actuarial testimony
 lost earning (past and future)
o from time of accident to trial
o future:
 expected duration of injury/disability
 type of work P would have done without injury
(difficult when career path is undefined:
students, children, homemakers)
 how long P would have worked if no injury (life
expectancy, type of work, level of interest)
 fringe benefits
 reduced by earning capacity post-injury
 property damage
Non-economic losses
 Pain and suffering
o physical pain from injury, recovery and/or disability
o emotional distress: anguish, humiliation from
disfigurement, fear of recurrence, depression, reduced
life expectancy
o Loss of Enjoyment of Life (LEL; Hedonic damages): loss
of ability to enjoy experiences enjoyed prior to injury;
measured against pre-accident life expectancy
 unconsciousness? most courts deny recovery for P and S;
divided as to whether they may recover for LEL
o Collateral Source Rule:
 traditional view: none of D’s business if P is compensated from
“collateral sources”: private insurance, workers comp, etc
Wrongful Death and Survival Actions
o governed by statute (common law said death was not an injury): allows
actions based on injuries that cause death
o [P injured -----SA-----{death]------WD----}
o WD: actions on behalf of survivors for losses due to death of decedent
 statutes determine which survivors can recover
 Economic (lost financial contributions; lost household services)
 non-economic (loss of consortium/companionship; emotional
distress)
o SA
 actions for personal injuries of decedent that decedent could have
brought if still alive
 economic and non-economic losses PRIOR to death (med expenses,
loss of earnings, property damage, P&S)
o Contributory neg of decedent affects recovery in the way it would have if
decedent had lived and brought suit (reduced)
Punitive Damages
o above and beyond compensatory damages
o intended to punish D for wrongdoing
 limited to egregious wrongdoing (spite, malice, fraud/evil motive)
o often N is not sufficient; mainly for intentional torts (but depends on
motive/conduct)
Nominal Damages
o apply in some cases where P has not suffered compensable harm through D’s
intentional wrongdoing (offensive contact batteries)
o not intended to compensate, but to recognize D’s wrongdoing
 really rare, small $, usually only to some intentional torts




**DEFENSES TO NEGLIGENCE

burden of proof on the D: “assuming that I had a duty that I breached, even if all four
elements can be shown, I’m not liable because:
o P’s fault as well: contributory/comparative negligence
 most juris in comparative negligence
 look to standard of conduct: reasonable person of ordinary prudence
in like circumstances
 contributory:
 completely bars P from recovering
 seems contrary to goal of letting P recover
 consistent with individualism: holds people responsible for
taking care of themselves
 never a defense for intentional torts, recklessness or willful
misconduct
 Last Clear Chance
o when it applies, D is L in full for the entire harm as if the
P had not been contributorily N
o Allows P whose N placed him in a position form which
he is powerless to extricate himself to recover for his
injuries when:
 D discovers the danger
 still has time to avoid the harm, AND
 D fails to exercise reasonable care to do so
o EX: P’s N causes her to fall over bridge into river; D in
boat could have avoided harm, but acts negligently and
doesn’t
o eliminated in most juris
 comparative
 reduced damages for P
 based on degrees of fault (negligence)
 some also consider causation
o Uniform Comparative Fault Act:
 nature of the conduct of each party
 extent of the causal relationship
 excludes intentional torts
 pure comparative
o most judicially adopted
o UCFA (see above)
o Ps recovery reduced in proportion to their fault
o If P is 80% at fault, D is 20, $100 damages, P gets $20
 modified comparative
o most statutorily adopted
o Not-as-great-as: P recovers if fault is < D’s
o Not-greater-than: P recovers if fault is <= D’s
o who do we compare to?
 Some juris say with each D
 some say with the aggregate fault of Ds; this is
better because P has better chance of having less
fault than the aggregate; most juris use this
 multiple Ds: JSL applies:
o if P is 20% fault, D1 is 30%, D2 is 50%, D1 is liable for
$80
o SOME juris hold D’s severally L: pro rata ($40) or
degree of fault ($30)
o Contribution: Ds can get help from other Ds for paying
for damages
 Some Js apportion damages equally (traditional
rule)
 some Js (UCFA) apportion based on respective
fault
 If P is N and D is reckless: most states with pure comparative
N compare conduct
 If P is reckless, D is N: traditional contributory N rules barred
recovery; modified states P loses because fault is greater than
D; in pure comparative, P gets reduced damages
 If Ps conduct is criminal: mixed juris responses
 Do not talk about duty; just do Adams/Learned Hand
o P’s assumption of risk
 express and primary implied are not affirmative defenses because this
means there is no duty
 bar recovery in this case
 reduce damages in secondary AoR
 Express Assumption of Risk
 Hanks v. Powder Ridge
o snowtubing accident due to negligence of tubing facility;
Court concluded that the agreement expressly and
unambiguously purported to release the facility
operators from liability; HOWEVER, ti violated public
policy
o minority approach because of policy reasons
 Tunkl factors

o suitable for public regulation
 P: potential danger, open to the public, for family
fun (want to help protect kids)
 D: you can do it anywhere, not statutorily
regulated anywhere else
o importance to the public
 P: healthy
 D: leisure
o any member of the public can use it:
 for the P; no argument that it is open to the
public
o advantage of bargaining strength
 P: if you don’t sign, then you have to drive home
 D: don’t have to go to that specific venue to do it
 BUT: can you go to another resort that won’t
have a waiver for you to sign
o standardized adhesion contract
 for the P; no moment where it was not a contract
o purchaser is placed under the control of the seller
 P: run is designed and controlled by Ds
 D: he was in control of his own activity; not as
much as the cases in hospitals
 most juris will not uphold waivers that cover things worse
than neg (gross negligence, recklessness, intentional neg)
 this is treated as a barred recovery because you are
ELIMINITATING duty—not technically an affirmative defense
because of this reason
Implied Assumption of Risk
 Murphy v. Steeplechase Amusement Co.
o Plaintiff fractured knee cap defendant’s amusement
park ride (“The Flopper”) due to a sudden jerk. Plaintiff
was fully aware that the ride consisted of jerks before
he got on it.
o when a person takes part in a sport that you have
observed, you accept the inherent dangers (violenti non
fir injuria)
 AoR is subjective: did THIS person know and NOT what she
should have known
 don’t want to inhibit vigorous participation in sports
 spectators: too much protection would reduce quality
experience and would increase ticket prices
 Elements:
o must appreciate the nature and extent of risk
o must voluntarily accept it
 Types



o primary implied: risk is inherent to the particular
activity
 why bar: flood of litigation; vigorous
participation; hard to tell what is negligent
activity and not—hard to assess
o secondary implied: encountered risk created by D’s
negligence
 **true defense here because negligence exists
Davenport v. Cotton Hope
o Plaintiff was descending unlit stairway near his
apartment and fell and was injured. He had complained
to defendant management that the lights were not
working two months prior to fall.
o P not barred from recovery unless degree fault > D’s
negligence  JURY QUESTION
o reduces damages if it was unreasonable to confront the
risk
INTENTIONAL TORTS
Intent
o the person acts with the purpose of producing the consequence or
o the person acts knowing that the consequence is substantially certain to
result
o ***contributory negligence is not a defense here
o Majority feel like children can have intent just as easily as with adults
o Garratt v. Dailey
 Five year old defendant allegedly pulled chair as defendant was about
to sit down, causing injury
 intent can be proven though substantial certainty that a certain
outcome will occur
 if you are on notice that an act will cause an intentional tort, you are
substantially certain, thus liable (we don’t care about intent here)
 what if there is no SC, but there is intent? LIABLE!
 You cannot simply intend the act, you have to intend the injury
 battery… see below
Battery
o Elements:
 Intentionally (either actual intent or constructive/legal intent proven
though SC test)
 Causing
 Harmful, offensive, or unconsented to (you could intend assault
too)
 (offensive contact): damaging to a reasonable sense of
dignity; usually results in nominal damages (see Wishnatsky)


unconsented: hard to prove unless P has given notice
o if you are on notice that act will cause intentional tort,
then you are substantially certain and thus liable (even
if unreasonable: think “no hugs” sign)
 **implied consent to touching (going through a crowded
hallway, metro station)—no liability
 Bodily contact
o protects: security of person, dignity, respect to personal space and
boundaries
o known eggshells depend on juris
 majority: say no recovery
 minority: yes recovery (because this shows intent and “substantial
certainty of harm”)
Assault
o Elements
 Intentionally
 no hostility required
 intend to cause fear (sometimes to cause battery)
 intent can be transferrable: if you intend to cause battery but
cause assault instead, it transfers, and visa versa
 what if you intend to hit someone but hit someone else? Intent
will transfer (deterrence)
 Causing
 A reasonable apprehension of imminent harm
 eggshells cannot recover: worried about fraud
 known eggshells? still fraud concern; flood of litigation
(minority approach says OK)
 mere words are usually not enough; sometimes enough in the
context
 conditional threats can work now
 Harm being threatened must be imminent (no futurity; you
have alternatives)
 P must be AWARE of threatened contact (think of Suter
throwing book at an oblivious person)
o protects: mental autonomy; peace of mind
o Picard v. Barry Pontiac-Buick
 Plaintiff hired D to do a break inspection. She suspected foul play so
she took picture of the 2nd inspection. D came after her shouting and
pressed his finger against her camera. P claims to have suffered back
trauma and sues for assault and battery
 Battery? Yes: camera is “intimately connected” to the body and is such
an extension
 Assault? Yes: waving finger in menacing manner
o Wishnatsky v. Huey




Plaintiff entered room without notification, and defendant, who was
in a meeting, pushed the door closed, thereby pushing plaintiff back
into the hall. Plaintiff sought damages for battery.
behavior that is rude and abrupt is not battery so long as the bodily
contact was momentary, indirect, and incidental such that a
reasonable person would not be offended under similar
circumstances
must be a reasonableness factor for offensive contact; based on social
usages
offensive contact/battery without damage = nominal damages
Eggshell Plaintiff
NIED
A
Offensive Conduct
Harmful
No
Yes
Recovery
No
No
Defendant knows
of sensitivity
No
Yes (Minority)

Maybe
Yes
False Imprisonment
o Elements
 Intend
 Unlawful restraint
 space must be confined
 Restatement:
o actual physical barriers (cage)
o apparent physical barrier (door is rigged and will
electrocute)
 overpowering physical force
 threats of physical force (imminent)
 other duress (moral pressure is not enough, nor is
economic threat) (think threats to property or family—
could count)
o no threats of firing because you typically have that
power as an at-will employer
 asserting false legal authority
 against Ps will
o P must be aware of imprisonment or be harmed
o reasonable period of time
o Lopez v. Winchell’s Donut House
 Ds called P into donut shop back room to confront her about
stealing. Ds used no physical force, did not keep her against her
will, and did not admit using unlawful restraint. Therefore,
judgment upheld, no FI.
 mere future threats (firing) is not sufficient

o Damages: nominal; may also recover for mental suffering, humiliation,
loss of time; sometimes punitive damages
Intentional Infliction of Emotional Distress
o Elements
 Intentional or reckless
 recklessness: the harm will be likely to occur (greater
probability than negligence (“likely” is slightly less than
“substantially certain” which is the rule for intent)
 Extreme and outrageous conduct
 abusing power, known eggshells (this helps make the case,
but does not prove), look at the time context, if it is
repeated
 nursing student decision was unusual (normally this would
count as extreme and outrageous)
 Causes (but-for, and proximate)
 liable for a broader range of harms than for negligence
 SEVERE emotional distress
o Womack v. Elridge
 Defendant, in the course of investigating a case for an attorney,
took picture of plaintiff that was later used for verification in a
pedophilia charge. D fraudulently told P that she was a reporter,
and later, D was summoned to appear before court several times,
and suffered great emotional distress.
 Court does not require physical harm; can recover for pure ED
o Review so far:



Negligence: moderate risk; objective test (what is “reasonable”)
Reckless: serious, grave risk; could be either—moving towards
more likely
Intentional: substantially certain; subjective (state of mind of D)
Defenses
 Consent
o consent is to battery what assumption of risk is to negligence
o not a defense for anger fights (these are not planned)
o must show capacity to consent; no duress, no fraud, and no
misunderstanding
o **can be affirmative OR implied consent
o children can consent to small things (handshake), but not to big decisions
(medical decision)
o Hart v. Geysel
 P dies in an illegal prize fight
 both engaged in the illegal behavior; unfair to deter one but not the
other
 consent is a defense here; also, battery requires unconsented
touching, which didn’t happen here since he consented!
 Self-Defense
o Elements:
 reasonable belief in light of the circumstances (this is an objective
standard—not an “honest” belief—subjective)
 imminently harmful circumstances (cannot be retaliation)—mistakes
are ok because of the imminence of the danger
 means of defense was reasonable/proportional force (nonproportional force will reduce damages)
o true affirmative defense? yes because you are admitting to the crime, but you
are saying that you did it in self-defense
o Carvoisier v. Raymond
 P thought D police officer was part of a group of angry men mob and
fired a shot at him in the crown
o third party self-defense? (trying to protect a loved one, etc)
 mistakes go to the Ps benefit (creates disincentives to not act rashly)
 cannot be retaliation; harm must be imminent
 maj: if you rx believe that [all the elements] then no liability, but if
mistaken, minority says liable
o Duty to retreat?
 restatement and minority view: yes, you have a duty to retreat
 no duty to retreat if in your own home
 majority: no duty to retreat if they are presenting with non-deadly
force
 if you can reasonably escape, then you have a duty to retreat and not
use deadly force (majority)


Defense of Property
o must have a verbal demand prior to using force (GET OUT!)
o must be reasonable/proportional force (jury question) if they don’t leave
o can use deadly force if justified in self-defense (not defense of property)
o if there is a substantial chance that someone would get hurt, it reaches to a
level of recklessness
o better to use things like barbed wire: it is apparent and non-deadly
o Katko v. Briney
 D, owner of unoccupied farm house, experienced several trespassing
and housebreaking events. He installed a spring gun which fired at
plaintiff who entered house to collect antiques. P entered house by
removing board from porch window without glass. No sign warning
spring gun. P sued for battery
 court holds life more valuable than property
 have signs: AoR
 landowners are not responsible for eggshell Ps
 punitive damages? depends on the severity of the injury; con: the
trespasser broke the law too!
Necessity
o usually deals with interference on property
o must have reasonable fear of of imminent serious harm using reasonable
means (risk avoided > risk caused)
o D is privileged to harm the property interest of P where it is necessary to do
so in order to prevent greater harm to third persons or to D herself
o Public: protecting the interests of others
 complete privilege: not liable for damages; we don’t want to deter
service to public interest
 have to have reasonable fear of imminent serious harm
o private: protecting your own interests
 D has to pay damages here
 incomplete defense
 complete defense if you are doing it to protect the landowners’
property because you are helping them out
 what if you are harmed in the process? assumption of risk,
unless caused by neg of LO
o Ploof: person comes on the land and the person expels the person; person
does not have this right because they are on there because of necessity
o Vincent v. Lake Erie Transportation
 D moored ship to P’s dock. Storm  stayed on dock and kept tying it
on. Ship rocked and caused damages
 P is allowed damages because D did it to protect his own property
 case where burden is so high that D would rather pay damages than
bear burden (feels like SL: you caused the harm, even though out of
necessity)
 Elements:



 reasonable belief of
 serious imminent harm
 cannot pose a greater risk
rationale:
 both are innocent
 religious tradition: the poor can take what is necessary to
sustain life, but they still have to pay (not entirely clear)
if considering the “no duty to rescue” rule, there should be no
necessity defense: if you are bleeding in the street, I don’t have to save
you, so why should saving you from a storm be any different
we want to incentivize the least amount of harm: staying on the dock
STRICT LIABLITY
Ultrahazardous activities
 more economic reasons
 wild animals
 in America, we recognize that by living near each other we are assuming risk;
negligence should be the test
 Fletcher v. Rylands
o Under no fault of D’s, his reservoir broke and the water entered P’s mine; D
took due care, and did not realize that the two lands were connected
o holding: when a person for his own purpose brings something that is likely to
do mischief onto his land, and it escapes, he is liable regardless of if he was
not negligent
o Rationale:
 importance of land
 innocence of P
 water was not “naturally” there
o Excuses: contributory negligence OR act of God
o what about highway drivers? equal risk and reward to both
 Sullivan v. Dunham
o case of trespass on the person (not the land)
o through no fault or negligence of defendant, they dynamited a tree and a
fragment killed P on the highway
o impose strict liability where injury is direct result of act
o tension between landowner’s use of their land and the safety of others
 Restatements:
o 1st: ultrahazardous activities, risk of serious harm, can’t eliminate risk, not
common usage
o 2nd: abnormally dangerous; 6 factors; have to show proximate cause (what
about it makes it abnormally dangerous; is it FOS)
o 3rd focus on FOS, value to community
 Indiana Harbor Belt


o Posner: law and econ; uses 2nd restatement
o railcar was carrying toxic chemical and it leaked during transport.
homeowners forced to evacuate, and decontamination $$. Suing
manufacturer
o this should be negligence, not SL
o uses 6 factors:
 high degree of risk: NO—very few accidents, non-corrosive substance
 likelihood that the harm that results from it will be great: YES
 inability to eliminate the risk by using due care: NO; can eliminate risk
 extent to which the activity is not a matter of common usage: Common
usage; important transportation hub
 inappropriateness of the activity (locale): NO; rerouting would
increase danger
 extent to which its value to the community is outweighed by its
dangerous attributes: NO; benefit to the entire country; cheaper
property, more jobs
o focus on the activity, not the specific act; negligence focuses on specific act
o SL can stop the activity all together
Moves us into Economic Theory
o is B > PL , we need to consider whose activities levels we want to change
 it will make D change/reduce/stop activity levels if they are going to
be held SL
o Loss spreading:
 goal: spread among multiple actors is less harmful than one person
paying $100 (each dollar for them is worth more than the one before)
o Loss avoidance:
 reduce number of accidents and the costs of those accidents
 do this through DETERRANCE
 specific: laws against it
 general: tort law, taxes, the actors can decide now
o Loss allocation:
 internalizing the costs
 if they have to internalize, then they will make judgments on good
uses of the resources
 who do we want to internalize the cost: the party that can avoid the
risk and who can reduce the risk most cheaply (look for cheapest cost
avoider)
o administrative efficiencies
Special cases
o Wild animals: look at context (wild animal in one country might not look like
a wild animal in another)
 not necessarily based on propensity of harm: zebra and tiger are
equally as wild
 probably no SL for zoos/circuses: we want to encourage these
activities

look to what is normally expected of the type of animal (abnormally
dangerous poodle you would be SL)
Product Liability
 **Theoretically could sue for SL, negligence, and implied warranty (on exam, treat it
for SL… don’t do negligence or IW)
 issues: how are D and P connected? how is the product defective? where in the chain
of distribution do the parties lie
 MacPherson v. Buick Motor Co.
o Plaintiff was thrown out of a car that the defendant manufactured when the
wooden wheel that plaintiff did not manufacture crumbled because of
defective wood/spokes. There was evidence that the defect could have been
found through reasonable inspection. There was no contractual relationship
between plaintiff and Buick, the only contract was between plaintiff and
dealer.
o moves away from privity of contract
o could recover for negligence
o duty will go to manufacturer because consumers cannot test these things
o scope: FOS (know P will be the user—FOS P); know there will be no
inspection by consumer; knowledge that the danger is probable
o difference between visible and invisible defects
 Escola
o Coke bottle exploded in waitress’ hands when moving it
o Majority: RIL, but it’s a stretch
o Traynor says SL
 Policy reasons:
 loss avoidance: eliminate products that are a menace to society
 internalization: business is more able to bear costs
 risk spreading: mfr is able to spread losses to public
 lessen admin costs: SL is more straightforward
o SL when normal and proper use, in the market, and when it is used w/o
inspection (MUST SHOW DEFECT CAUSED INJURY)
 Potential Ds:
o retailers can be SL (they will put pressure for quality on the manufacturer)
o supplier of parts can if they provide a defective parts (split jurisdiction)
 Potential Ps
o user/consumer
o passengers: must be FOS victims who are unable to inspect
o bystanders: split because they are more remote, BUT they have zero chance
to inspect, and they can’t change their activities
Manufacturing Defects
 came off the assembly line incorrectly even if manufacturer exercises care; deviates
from the intended design
 restatement sets up the consumer expectation test (“unreasonably dangerous”)
Design Defects
 the design itself is defective (“unreasonably dangerous”) and all of the products
reflect that
 have to show but-for cause and proximate cause; think about intervening causes
 3rd Restatement creates the 3 types of defects (manufacturing, design, warning)
o Consumer Expectation is incorporated into Ortho factors
o says you have to show RAD except if the product is irreducibly unsafe and
they have no utility
o not all that different than Ortho factors
 Cronin court wants to get rid of “unreasonably dangerous” from the restatement
because it sounds too much like negligence
o A bakery truck driver was injured when in a crash the bakery trays came
forward and struck him in the back – safety latch broken
o holding: This is not the majority of J’s. Here P does not need to show that the
defect was unreasonably dangerous, must show manufacture or design
defect and proximate cause
 Barker case
o Liability not only when product is being used properly, but also when the
product is being used in an improper but reasonably foreseeable fashion
 Ex: using chairs to change lightbulbs—reasonably FOS misuse
o Two tests:
 consumer expectation test:
 origins in implied warranty
 feels more like SL
 consumer wants it if it was hidden/complicated
 consumer doesn’t want it if the danger was open an obvious
 Risk/Utility test (R/U)
 sounds a lot like Learned Hand test/negligence
 Soule v. General Motors Corp.
o The plaintiff claims that a defect in the defendant’s automobile design allowed the
left front wheel to break free in an accident and collapse rear-ward, smashing the
floorboard into the plaintiff’s feet. Alleged defect caused enhanced injuries
(CRASHWORTHINESS)
o Court decides to use R/U because it is a more technical/complex matter/product

o CE Rule: Use where experience of the consumer permits evaluation on
whether the product is performing as it should (beneficial to D where danger
is open and obvious)—makes sense in manufacturing defects cases because
we know what to expect as customers
 Manufacturer thinks this test is stupid and wants to eliminate it:
consumers don’t have reasonable expectations; they don’t have the
manufacturing knowledge to know how complex it is
 good for bizarre things: car randomly exploxing
o R/U Rule: Use where too technical for consumers. (hidden defect) (better
for manufacturer in this case)
Camacho v. Honda
o The plaintiff bought a new motorcycle manufactured by the defendants and was in
o
o
o
o
an accident where his legs were severely injured. The plaintiff claims that the
absence of crash bars made the product defective. Crash bars were available from
other companies as optional equipment.
Honda wants CE test: pro-consumer-autonomy; consumer can make their own
choices
Camacho wants R/U (Ortho factors): if you use CE, then there would be no incentive
for man. to make product safer, but just to make risks more obvious
 USE ORTHO FACTORS ON EXAM
 utility (usefulness/desirability)
 probability/magnitude of harm
 safety
 available substitute (like RAD)
 ability to eliminate danger w/o impairing utility/cost
 user’s ability to avoid danger
 user’s awareness (like the CE test)
 feasibility of spreading loss: always in favor of manufacturer
 3rd restatement requires an RAD (mention this)
Irreducibly unsafe products (knives)
 look at utility
 knives have high utility, no RAD = no defect
 choppers have low utility, no RAD = defect
Still in SL?
 we are focusing on the product itself, not the conduct of the manu.
(negligence)
 but in reality, we are still blaming the manufacturer and saying they made
the wrong cost/benefit analysis
 more like direct SL for the retailer because they didn’t make any design
choices, they just carry the product
Warning Defects





two types of defects: failure to warn AND inadequate warning
two types of warnings:
o how to use product safely
o to make customers aware of inherent risk
you cannot “warn away” risks—must warn for any risk that cannot be reasonably
designed away (3rd restatement)
First question: do you need a warning, or should it be common knowledge?
o if yes, is it adequate?
Hood v. Ryobi
o Plaintiff operated a miter saw without the blade guards in place despite
numerous warnings on the saw and in the instruction manual. As a result,
the blade flew off and severely injured the plaintiff
o P thought that the guards were there to protect one’s clothing and hands
from coming into contact with saw, not to protect the blade from flying off
apparatus
o claim: insufficiently specific warning
o court’s test: warning that is reasonable under the circumstances (sounds like
negligence)—if you overdo warnings, then the ones that are there lose their
meaning
o Considerations for warnings (from the restatement)
 Intensity: how it is seen
 size, font, placement, color, context
 language/diagrams/pictures/symbols
 Comprehensibility
 Characteristics of users: audience (children?)
 Content: consequences of violation—type of harm, severity,
probability
o need to show causation
 looks like informed consent: a good warning would have led to
different actions
 heeding presumption: you presume that your P would have heeded
the different warning; pro-P; burden on D to show that P would not
have heeded warning
 Vassalo
o are warnings required only if they were known/knowable, or can you be
liable for things you find out after?
o defective silicone breast implant
o liability if:
 reasonably FOS (feels like breach)
 through reasonable testing
 based on standard knowledge of an expert in the field
o majority do it ex ante: reasonably knowable based on what you knew at the
time
o Minority:
 what is the argument for having to warn everything: admin ease,
research, invest in safety
 concerns for this rule: might restrict innovation
o Duty to warn:
 known or should have known
 can id who can benefit from warning and
 can effectively communicate
Defenses
 Is contributory neg a bar under 2nd restatement: no
o Assumption of Risk: bar
rd
 3 restatement:
o contributory: damages reduced
o AoR: doesn’t really talk about it
 Tensions: can you really compare SL with N? Seems so different
o in favor: incentivizes consumers to use products carefully and reduces risks
of accidents
 GM v. Sanchez

o duty to discover?
o Texas: no duty
o 3rd restatement: duty to inspect if you could reasonably discover the defect
 3 ways that consumer could be at fault:
 negligently failing to discover the defect
 negligently assuming the risk
 misuse: using the product in a negligent way
o design defects: is it a FOS misuse = defect
o prox cause
o defense: if misuse is negligent
courts divided about express assumption of risk