I.
Joint Tortfeasors: Cases where more than one party is negligent
A. Joint and Several Liability (With Contribution): Traditional (Democratic)
1. Judgment for entire damage amount ordered against each D
a) i.e. each D is potentially liable for the entire damages award
2. Each D should pay a pro rata %
a) but P can enforce the entire judgment against a particular D in the case
that other D’s are insolvent
3. Contribution: is a separate equitable claim to go after other Ds in the case to
make them pay their share to D who paid P
4. BURDEN on D’s: each D takes risk of others’ insolvency
a) D1 is in trouble if forced to pay 100% to P and D2 is insolvent
B. Several Liability (w/ no contribution): Modern (Republican)
1. No tortfeasor is liable for more than his proportionate share
2. Each D will pay his % of the total damages (and nothing more)
a) Must determine the whole damages amount and the percentage of
liability that each D has.
3. BURDEN on P: P in touble if one of the D’s cannot pay his %
a) If there is an insolvent D, P will not be able to enforce that amount
against the others and so will not get the full damages award
C. California Approach: a compromise of the two
1. Several ONLY  if non-economic damage (i.e. pain and suffering)
2. Joint and Several Liable  if economic damage (i.e. medical costs and lost
wages)
i) More important for P to be compensated for what P paid out/lost due
to injury than some immaterial factor like pain and suffering
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II.
DEFENSES TO NEGLIGENCE CLAIMS
A. OVERVIEW: 4 Defenses to Negligence
1. Contributory Negligence
2. Assumption of Risk
i) Express (“Contractual”) v. Implied
3. Statue of Limitations
4. Compliance with Statute and Preemption by Statute
B. Contributory negligence and comparative responsibility
1. Contributory/Comparative Fault – D must prove the whole PFC of
negligence against P to argue contributory negligence. When looking at RPP,
RPP assumes that others exercise reasonable care as well and so the RPP
standard does not require acting under the assumption that others have no
duty of care
2. Butterfield Rule (4 states):
i) RULE: complete bar to recovery if P is negligent with respect to P’s
own safety and such breach is a cause of P’s harm or P engaged in an
illegal activity
ii) “All or nothing” or “traditional” or “complete bar” rule – if P was
contributorily negligent at all, P cannot recover
iii) principal: one must use ordinary care in order to sue someone else for
breaching their duty
iv) Elements of Contributory Negligence Under Butterfield Rule
(1) Duty: P owes a duty to himself
(2) Breach: Same as we saw it before, except that P is breaching a
duty to himself (acting negligently)
(3) Actual Harm: Not for D to prove; for P to prove in PFC against D
(4) Cause-in-fact: D prove P’s negligence is the but for cause of P’s
harm
(5) Proximate cause/scope of risk: P’s negligent conduct must have
risked the type of harm that occurred and to the class of people P is
in
3. Exceptions to the Butterfield Rule
i) When D owes duty to protect P from P’s own Fault: If always true
that D owes a duty to protect P from own fault, it would erase this
whole course (D doesn’t always owe a duty to protect P from his own
fault, would erase contributory negligence and A/R at the least). Some
situations exist, though, where D does owe such a duty. In these
situations, courts would not allow D to use P’s contributory negligence
to bar P’s recovery
(1) D’s duty is broad enough to protect P from P’s own negligence:
 Cannot use contrib. negli as a defense here
 McNamara v. Honeyman: Mentally ill person hangs self in
state hospital, estate sues for hospital’s negligent supervision.
Ct holds hospital has duty to prevent suicidal patients from
committing suicide
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(2) Still apply? Yes (slight state split on suicide casessee
McNamara)
(3) When P owes no duty to himself
 Christensen: teacher has sex with his student; P says that the
student was contrib. negli.;
 PP: student has no duty to protect themselves from teachers
(4) Bexiga v. Havir: Mfg has a duty to place safety items on machines
because negligence of workers/users of machines is foreseeable
 Shows this Comes up in product liability cases
(5) Common characteristic:
 when D’s fault imposes a risk upon P but that P’s fault imposes
no similar risk upon D
 P’s vulnerability play a part in determining responsibility
 D knows of P’s disability which prevents/inhibits P’s care for
himself
 P’s risky conduct endangers himself but not others
ii) “Rescue” case: one who sees a person in imminent danger caused by
the negligence of another CANNOT be charged with contributory
negligence unless acting negligently – otherwise comparative fault
principle would deter rescue which is socially desirable
(1) Negligent D is liable to rescuer for any injury to rescuer
(2) Rescuer cannot be contributorily negligent unless acting
negligently
(3) Still apply (would comparative negligence defense be barred)?
(exception designed to keep D from avoiding ALL liability)
 Modified: Barring P if negl ≥ negl of D
 Pure: Keeps rescue exception (in that D cannot raise complete
affirmative defense of P’s negligence vis-à-vis their own
safety), and percentages fall wherever they fall
 Traditional/Butterfield: D could not claim P was
contributorily negligent if he was a rescuer even if P was as a
rescuer
iii) If negligence of P leaves him in a helpless position and D, who had
the last clear chance to avoid injury negligently inflicted it anyway.
(1) Last Clear Chance or Discovered Peril: If the D discovered or
should have discovered the P’s peril, and could reasonably have
avoided it, the P’s earlier negligence would neither bar nor reduce
the P’s recovery.
(2) Discovered peril doctrine: ONLY if D actually discovered the P’s
peril.
 requires ACTUAL discovery and does not allow for
constructive/should have known discovery
(3) P could not have invoked these doctrines unless P was helpless
(someone stranded on train tracks, e.g.),
(4) No longer used  dead
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iv) D acted intentional or reckless: Contributory negligence was no
defense to willful, wanton or reckless torts, thus the P charged with
contributory negligence was allowed full recovery against a reckless or
wanton D (D cannot claim P’s own negligence caused the intentional
tort)
(1) Still apply? State Split:
 Some allow comparison (such as R.3d’s “Comparative
responsibility” – everything can be compared in a pure form,
and percentages fall is where damages lie)
 Others say comparable negligence cannot be a defense if D
acted intentionally or recklessly PH is here
v) P’s Illegal Activity: If P was engaged in an illegal activity at the time
P injured, P cannot recover
(1) Still apply? State split:
 Most states have moved away from barring a claim entirely
when P engaged in illegal conduct
 NY Barker Rule: When the plaintiff’s injury is a direct
result of his knowing and intentional participation in a
criminal act he cannot seek compensation for the loss if the
criminal act is judged to be so serious an offense as to
warrant denial of recovery (only bars recovery when
criminal act is sufficiently bad enough)
 Some states pass legislation indicating specific illegal acts
barring recover (i.e. burglary – burglar cannot sue homeowner
for negligence after tripping over something in home while
burglarizing) (CA follows this)
 Some say P’s illegal activity a complete bar
vi) P’s Negligence as a Superseding Cause of His Own Harm
(1) Issue: Can D argue P was a superseding cause in his own harm?
 P must first allege and prove PFC
 D then points not only to contributory negligence, but also to
P’s own negligence being a superseding intervening cause
(attack on PFC). Argument is that if P’s negligence was not
reasonably foreseeable given D’s negligence, P’s actions were
a superseding cause
 Exxon v. Sofec: Admiralty case – Exxon tanker broke away
from moorings owned by D. SC uses above analysis to find
ship operator’s negligence in failing to get a fix on his position
after getting control of the ship, causing the ship to run
aground, was a superseding cause of P’s injury, freeing D of all
liability.
(2) State splits
 Butterfield States: Don’t need this at all because of complete
bar on negligent plaintiffs
 Modified Comparative States: P’s negligence as superseding
cause never allowed; rejected on grounds that superseding
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cause deals only with three actors, not two (P, D, and 3d party)
(all R.2d examples have three parties). These states say P
cannot be superseding cause of his own injury because there is
no 3d party involved
 Pure Comparative States: Allowed in all but one state
because pure comparison would allow P to recover 1% where P
was 99% at fault and D was 1% at fault. Courts do not want
this to happen – when P is overwhelmingly at fault, P’s
negligence is deemed unforeseeable to D and the court will bar
P’s claim completely
(3) Burden of Proof: When D is using contributory/comparative
negligence, D must prove entire PFC against P (P owed duty of
care to himself, breached that duty, was a cause in fact, and was a
proximate cause of harm)
vii) Negligent Medical Care: Ps who negligently injure themselves are
entitled to non-negligent medical care, and P’s negligence in obtaining
injury cannot be used to set off Dr.’s negligent care (mainstream rule,
based on policy)
(1) Mercer v. Vanderbilt University: Jury found hospital negligent but
also found victim 30% negligent; ct says victim’s getting drunk
and getting in an accident could not be a defense to hospital’s
negligence
viii)
Avoidable Consequences/Minimizing Damages Rule: When
P receives medical advice with regards to an injury, P required to
minimize damages by reasonable efforts and expenses (i.e., seeking
necessary medical care)
(1) Causation rationale: A doctor treating P negligently didn’t cause P
not to follow his instructions, thus causal chain is broken; P cannot
argue thin skull rule by saying, “I’m someone who doesn’t follow
medical instructions, so you take me as you find me”
ix) Manufacturer Liability for P’s Negligence (Bexiga v. Havir
Manufacturing): Manufacturer has duty to place safety items on the
machine because negligence of workers is foreseeable; manufacturer
should not be able to use P’s negligence as a superseding cause to bar
recovery when they fail to make safe equipment (NB: wouldn’t be an
issue in Butterfield or modified states; see above
4. Mitigation of damages: Defendant is not liable for harm caused by plaintiff’s
failure to mitigate her damages via reasonable effort and expense. (Is a subset
of the thin skull rule.)
i) Not actually a form of contributory negligence because the nonmitigated harm was not foreseeable, so defendant has not negligently
caused it.
ii) Most common example is failure to follow doctor’s orders so injury
gets worse.
iii) “Reasonable expense”: court rarely accepts plaintiff’s failure to see a
doctor because s/he couldn’t afford it as reasonable.
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5. Full recovery of damages even when P contributed
a) Before contributory negligence statutes, any negligence barred all
recovery (Butterfield rule). Some judges thought this was too harsh
and would let plaintiff recover all damages (despite P being partly at
fault) for public policy reasons.
b) Most common in non-reciprocated risk situations where D knew of P’s
vulnerability (aka plaintiff was abnormally dependent on defendant for
care).
(1) Examples: suicide at a mental health facility, patient injures herself
while being treated at a hospital, products liability such as product
lacking safety valve, child working with dangerous machinery.
C. Comparative Negligence
1. Butterfield JX: (four states), P is barred from all recovery. If P is contrib.
negli (i.e. a complete affirmative defense.)
2. Modified Comparative Fault: Wisconsin Rule (Majority – 34 states): If
D’s fault is greater than that of P, P will recover the % of total damages that is
attributable to D’s fault. But if P’s negligence is greater than or equal to the
negligence of D, P recovers nothing
3. Pure Comparative Fault: New York Rule (Minority – 12 states, incl CA):
Even if P is contributorily negligent, P will recover the % of total damages
that is attributable to D’s fault.
i) In CA, past/future lost wages and medical expenses are jointly and
severally liable damages and pain and suffering are several only 
keep??
ii) Ex: P=10% negl, D1=5%, D2=20%, D3=20%, D4=45%. Some states
group all Ds together and all are liable. Other states (almost all
politically conservative states) will allow D1 to drop out because he
was less negligent than P
4. Comparative Allocation Systems – (these labels are essentially three labels
for the same thing and just have increasing levels of generality in what can be
compared)
i) Comparative Negligence: Original form. Literally compares
negligence only and that’s all. Met if D claims negli of P then compar
negli situation.
ii) Comparative Fault: Allow comparison between negligence,
recklessness, and intentional torts.
iii) Comparative Responsibility: (R.3d approach) - Could even compare
strict liability as well as intentional, reckless, and negligent torts
(strict liability is not a species of fault).
(1) Looks at how wrong the conduct was AND compares causal
relationship.
(2) R.3d Factors for assigning % of responsibility to each person
whose legal responsibility has been established:
 Nature of person’s risk-creating conduct, including any
awareness or indifference with respect to the risks created by
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the conduct and any intent with respect to the harm created by
conduct; and
 Strength of causal connection between the person’s riskcreating conduct and the harm
b) Crownover: Factors for determining percentages:
 Inadvertence vs. awareness of danger
 Severity of risk created and who risk endangered
 Motivation behind the conduct
 Capacities of the actors
 Extenuating circumstances
D. Assumption of the risk: (most common in workplace injury or sports cases)
1. Express Assumption of Risk: “Contractual”, bars claim entirely
i) General Rule: Oral or written waiver of liability/contract is a complete
defense/bar to recovery as long as waiver of liability is valid
(presumption of validity)
(1) Boyle v. Revici: P agreed to nonstandard experimental cancer
treatment w/ Express A/R. She died and sought negli against Dr.
Ct for D cuz A/R is a complete bar on recovery
ii) Exceptions: May be unenforceable for public policy reasons 
primarily goes to general enforceability of the contract
(1) Essential service: against PP to force a member of the public to
waive liability for an essential service
 Tunkl v. Regents of Univ of CA: D admitted to hospital only
if signed Express A/R; said this was against PP  essential
service
 Unequal bargaining power? Forced?
 Non-voluntary/Compelled Waiver
(2) K not valid
iii) Scope of the Release: If the release of liability/contract is valid, look at
its scope – does the release cover the act that caused P’s harm? Does
the contract cover what happened? (Jury Q)
(1) If ambiguities are found, they are enforced against the drafter
(usually the negligent D)
(2) Moore v. Hartley Motors: P signed a release absolving ATV
class from liability resulting from injury. Ct held release did not
discuss or mention liability for general negligence in course
maintenance, only to unavoidable and inherent risks of riding
ATVs (cts cautious to find waivers of liability valid when they are
at all ambiguous)
iv) Process: K Enforceable? K unconscionable? Scope of release?
2. Implied Assumption of Risk: Form of implied consent that looks at the entire
factual situation to determine whether it can be inferred that P assumed risk of
injury (negligence version of consent). Usually between 2 participants, when
P gets injured b/c other party violates a rule. 3 Approaches.
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i) Traditional/ Butterfield JX: (bars claim entirely in Butterfield jdxs and in 8
other states).
a) Focus is on P’s Subj Acceptance of Risk Bars Claim
b) 3 Require:
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(1) P has knowledge of risk of danger;
(2) P appreciated the risk; AND
(3) P voluntarily exposed himself to that risk
 (whether you’re compelled to do it or not, if you have
alternatives)
(4) Diff than Contrib Negli cuz more subj (knew of risks)
ii) Modern Implied A/R  EITHER; Majority Rule (including CA)
(1) Primary IA/R: bars claim entirely because D either owed P no
duty or D breached no duty
 when there is a complete bar b/c either P impliedly freed D of a
duty owed or impliedly b/c of P’s knowledge, D didn’t breach
a duty of care – failure of PFC
(2) Secondary IA/R: treated as contributory negli; essentially the
comparative negli/fault analysis
 where the D does owe a duty of care to P, but P proceeds to
encounter a known risk imposed by the D’s breach of duty
– the doctrine is merged into the comparative fault system
 Implied A/R and contributory negligence used interchangeably;
not a complete bar, but will set off P’s recovery (affirmative
defense).
 no distinction between contributory negligence and A/R when
raised as a defense to an established breach of duty
 Betts v. Crawford: Housekeeper fell on kids toys left on steps;
Sued homeowners for negli duty of care; P wins using
secondary IA/R
iii) Restatement Approach: Eliminate Implied A/R as a separate defense
altogether cuz it’s redundant.
a) Defense is either no duty/no breach (no PFC) or P’s contributory
negligence
b) PH: agrees with Restatement Approach  We don’t need A/R at all
and it should be eliminated as a defense
3. Sports Participant Cases: P assumes the risks inherent to the sport but no
others (if P makes an informed estimate of the risks involved in an activity
and willingly undertakes them, there can be no liability if he is injured as a
result of those risks). Two approaches:
i) Allow D to argue P assumed the risk
(1) If D did not increase inherent Risk  then ‘primary’: no duty or
no breach
ii) Allow tort suit ONLY if D acts recklessly or worse (not a negligence
claim)
(1) More efficient for policy reasons; draws a brightline rule
(2) Burden of proof on P
(3) Gets rid of A/R, which is a defense to a negligence claim
iii) Limited Duty  not to increase “inherent risks” of the sports
iv) Avila: baseball player hit in head w/ intentional “beanball”
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v) Turcotte: Jockey gets illegally knocked off of horse and is paralyzed
in race; D defends on IA/R; Claim barred via primary AI/R
vi) Sunday v. Stratton: Skier injured when hit bush covered w/ snow;
sued ski co. cuz breached duty to skiers by not maintaining slopes; D’s
defense that bush is inherent risk in sport  denied by court
4. If there’s a rule against such behavior then it must happen often enough so
that it is likely an inherent risk
E. Defenses not on the Merits
1. Statutes of Limitation: bars valid “stale” claims not timely brought (2 yrs for
CA)
i) 2 Approaches  for when does accrue/clock start/become operative?
(1) Traditional Rule: A cause of action accrues as soon as the right to
institute an action arises (date of D’s act), regardless of P’s
knowledge
 AKA Occurrence or time of Injury Rule
 Shearin v. Lloyd: Dr leaves sponge in P’s abdomen
(2) Discovery Rule: (MAJORITY): Claim accrues when a RPP
would know or should have known of (1) injury (general nature)
(2) D’s role in causing injury
 Not subjective (“when did P know?”) but objective (“when
would a RPP have known of both the injury and its cause?)
 Schiele v. Hobart: toxic tort case, meat wrapper developed
serious lung problems from fumes.
ii) Continuous Treatment Rule: in ongoing medical care cases, COA
doesn’t accrue until doctor finishes treatment. This is favorable to Ps
because it extends SOL, as well as favorable to doctors because it
allows them time to fix the problem so they don’t get sued
iii) When tolled? Some say when complaint is filed, some say when D is
served
iv) Policy Behind: systemic interest  save money and time on these old
cases; gives D peace of mind that he won’t be sued
v) D may be estopped from asserting SOL defense if D conceals/obstructs
P’s filing of an action
2. D’s compliance with statute: Where D is in compliance w/ a statute
i) Relevant/evidence of due care but NOT determinable; (Treated
exactly like custom evidence)
(1) Defense but NOT not a complete defense
ii) Statute and ordinances usually just set floor of due care, but are not, on
their own terms, standards of care
iii) Evidence of custom/recognizable risk can be brought to show
compliance was not enough
3. Preemption by Statute: When federal law (regulation, statute or ordinance)
“preempts” the field (including state law), so that any state regulation of the
same field is ineffective.
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i) The effect is to displace tort/common law completely and leave the P
without a remedy when D has complied with federal regulations.
(1) No state cuz must go to fed. No fed cause of action cus of fed reg.
(2) Good for corporations b/c immunize them against state tort law
claims
(3) (Ex. consumer products subject to much federal regulation)
III.
LIMITING OR EXPANDING THE DUTY OF CARE
A. Carriers and host-drivers
1. Traditional Rule: If D was a common carrier (traditionally a carrier open to
the public for transportation/those in the business of carrying passengers and
goods who hold themselves out for hire by the public), D owes passengers a
higher duty of care (almost strict liability)
i) ONLY can be used by passengers of the carrier
ii) Private car is never a common carrier
iii) Some have abolished this rule and instead apply RPP standard to all
2. Distinctions
i) Paying vs. Nonpaying Customer (Ps): Paying customer is the only one
owed a higher duty; nonpaying customers owed RPP duty
ii) Common Carrier vs. Non Common Carriers (Ds): If giving friend a
ride, not a common carrier
iii) Therefore, carriers and host-drivers distinguish between Ps and D’s.
Possible equal protection issues
B. Guest Statutes: Removed the duty of reasonable care for those who gave people
rides if driver did not accept money/food/consideration from rider
1. If good, ONLY duty owed to passenger is NOT to act willfully or wantonly
2. Policy Behind: move people west; remove legal disincentives to give people
rides?;
C. Landowners Duty: when P is injured on D’s land and P claims injury due to D’s
negli
1. Require?:
i) D must be the landowner or land occupier
(1) Ex. of Land occupier = renter
ii) Injured on the land (usually by a CONDITION on the land)
(1) Duty of RPP
(2) (some jdx apply this rule to activities on the land as well)
iii) P is an entrant onto the land. 3 Types (diff duty of LO depending on
type of entrant):
(1) Invitee: Any person on the premises (1) at least in part for the
pecuniary (monetary) benefit of the landowner (“business
invitee”) or (2) who is on premises held open to the general public
(“public invitee”)
(2) Licensee: Everybody who is not a trespasser or invitee; someone
who is on land w/ permission (not trespasser) but not business or
public invitee (common ex. = social guest)
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
Lower duty: duty not to willfully or wantonly (or
recklessly) harm; no negli allowed  must have int tort
claim
 Lower duty cuz not being paid like Invitee
(3) Trespasser: Someone on land without permission
 Same lower duty as Licensee
 Slightly different than intentional tort trespasser; R.3d uses
“flagrant trespasser”
2. Duties owed by landowner to entrants on land injured by conditions on land
i) Traditional CL: (minority of states apply to activities) (MAJOR
APPROACH 1 – 50% of states)
(1) MAJORITY 25 states distinguish between Invitee (RPP in
SSC), Licensee & Trespasser (only duty not to act willfully or
wantonly
(2) Invitee owed RPP/SSC standard
(3) Licensees and trespassers are lumped together and owed a
lesser duty not to willfully or wantonly harm (some: recklessly).
Willful, wanton, [reckless] conduct must meet dual knowledge
rule
 Dual Knowledge Rule: If landowner knows (1) of entrant’s
presence, and (2) of the hidden hazardous condition on the
land, then EITHER an RPP duty is created OR LO acts
“willfully or wantonly” if LO fails to warn the entrant of the
hazard
 An exception to lesser SOC, applies in those jdx where
treat entrants differently; RO  so apply to modified too?
 Landowner breaches duty if he does nothing; if he does
something, issue becomes whether he did enough
 Obvious conditions (planks missing on bridge) are NOT
hidden
 Knowledge: depends on facts
(4) Activities vs. Conditions:
 Gladon v. Transit Authority: P bought train ticket (he’s an
invitee), got jumped and ends up becomes trespasser (ends up
on the tracks even though not there voluntarily). Most states
would not have found for train co because they were engaging
in an activity on the land and most states don’t go into
categories at all unless injury pertains to condition on the land.
Good defense argument on exams when not given a JX RO,
look to redo
 PH: case shows trespasser in this instance does not have to
be volun.
ii) Modified: Treat invitees & licensees the same (RPP in SSC) but
trespassers w/ a lesser standard of care; (same as traditional except
licensees are grouped with invitees); 13 states use this
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iii) Abolished Categories: RPP Duty Owed to All (CA Approach); No
classification scheme used; 12 states use this
iv) Special Child Trespass Rule/Attractive Nuisance Doctrine: Duty
exists when
(1) It is foreseeable that a child would trespass due to an attractive
nuisance
(2) LO knows or has reason to know of the dangerous/attractive
condition on the land
(3) Child’s age precludes him from protecting himself against the
dangerous condition
(4) The possessor fails to exercise reasonable care to eliminate the
danger or otherwise protect the children
(5)
 ****burden on Landlord to show that made reasonable effort
to avoid the harm (based on the Carroll Towing analysis of
breach and alternative conduct)
 The utility to the possessor of maintaining the condition and
the burden of eliminating the danger are slight as compared
with the risk to children involved, and
v) Rationale: (just like child SOC, but for when child is a P) children
entitled to a greater level of protection than adults because they may
not, due to their tender years, understand the risk of the condition and
their curiosity may draw them in; let children be children
vi) Common examples of foreseeable hazards to child: pool  Bennet:
old cars on land; old fashioned refrigerators
(1) May be guilty here even if don’t know child are trespassing on
land
vii) Bennett v. Stanley: Neighbors let pool go and now looks like a pond;
neighboring 5 y/o falls in pool and drowns; mother trying to rescue
baby drowns in pool as well
viii)
No special rules for child trespassers under RPP Duty Owed to
All (approach 3 above) because taken into account when SOC to apply
is established
ix) Parental Liability: Hard to sue parents for negligent supervision for
negligent acts of children unless there have been problems before.
May be contributory negligence issue, and could argue child was
negligent if they fall below child standard, but this is hard to meet (but
some states say children cannot be negligent under a certain age)
3. Open and Obvious Hazards:
i) Rule: A LO does not have a duty to warn people of open and obvious
dangers because they provide their own warning (majority??); i.e. no
breach of duty and entrant has no claim
(1) Minority: a claim will not be automatically barred b/c the hazard is
open and obvious, IF D could/should have foreseen person will
not perceive hazard (and also imp. if D could have done anything
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to make a difference)  i.e. D still has a duty and can be held
liable for negligence
 Ex. obvious hole in department store floor; person not likely to
perceive hazard  youth, old, mentally challenged
ii) Rationales
(1) Butterfield/ I A/R: would have barred claim anyway
(2) D’s breach – if harm is so obvious that it would be unforeseeable
that P would allow himself to be harmed, then D either had no duty
or breached no duty
iii) How applied?
(1) Some States: apply Open and Obvious rule to bar claims for failure
of PFC
(2) Other states: Too simplistic to say no duty/no breach. Some courts
may look to foreseeability of whether a P may have nevertheless
fallen into an open or obvious hazard (falling into a hole in a
department store, e.g.). Therefore, courts will not bar a claim
completely because there is no duty/no breach, but allow D to
instead defend with contributory negligence
iv) O’Sullivan v. Shaw: P jumps into shallow end of pool and hurts
himself; ruled as an open and obvious hazard; for D
4. Firefighters’ Rule (Majority)  expanded to all professional rescuers
i) Rule: If professional rescuer (firefighter, police, etc) is injured by the
very harm that brought them onto the land, he cannot recover for
negligence. But allowed to recover for negligent conditions unrelated
to their purpose on the land
(1) Minority Rule: professional rescuers owed the same duty of care
as others when on those parts of the land that are open to others,
may be allowed to recover when violation of fire/safety
statute/ordinance
 Minority: only apply to firefighters
ii) Professional vs. Civilian Rescuers: Sort of an exception from rescue
doctrine, but distinction is between professional and civilian rescuers –
civilian rescuer still owed RPP duty, and under rescue doctrine can
recover from D whose negligence prompts the rescue resulting in
injuries
iii) Rationales/PP: disincentive to call for help, professional rescuers
assume certain degree of risk, compensated through workers’ comp.,
rescuers seen as licensees and therefore lesser duty (only no willful
acts); would mean mult penalties to taxpayers (pay taxes and be sued)
5. Recreational Use Statute: to encourage land owners to open up land for free;
cannot sue LO for negligence if don’t charge them; is liable for charged them
to be on land like guess statutes
D. Governmental immunity (Entities & Officers)
1. Generally presumed immune unless:
i) Takings, under due process clauses of 5th and 14th Amendment
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ii) Municipal immunity – municipalities are not sovereigns but
corporations chartered by the sovereign – liable for takings, nuisances,
torts committed in the course of proprietary activities
2. Govt retention of Immunity = 2 big areas/situation
i) FTCA Itself: “Discretionary function” immunity
(1) Makes it very diff to win suit v. US govt
b) Feres Doctrine: bars claims incident to service
(1) Govt retains complete immunity to injuries caused by combat
activities
3. FTCA: Federal Tort Claims Act  qualifies Fed Immunity
i) Historically, US had total sovereign immunity – “The king can do no
wrong”
ii) FTCA passed by Congress after WWII, waiving sovereign immunity
incompletely and with several restrictions
(1) for most intentional torts, dignitary/economic torts
iii) State tort law applied  law of the state where the injury occurs
(1) No federal tort law
iv) Major Conditions (P vs. US)
(1) No suits vs. individual employees  suit is vs. U.S. govt. itself
 Cannot sue gov’t employee if it occurred within the scope of
their duties
 Gov’t not vicariously liable in the way private employers
are
(2) Must sue in Federal Court
(3) Bench trial (no jury)
(4) Must give notice to govt agency involved before suit,
 Suit then not permitted until >6 months after the agency has
refused payment or delayed decision
(5) No punitive damages
(6) Only negligence claims – no intentional (or SL), with some
exceptions (“assault and battery exception”)
 Exceptions: Gov’t officer commits battery off duty facilitated
by employer (shoots someone with agency gun) and law
enforcement batteries, assaults and FIs
v) P vs. State/Municipality: around 1950’s/60’s, states adopt State Tort
Claim Acts patterned after FTCA
vi) §1983 of Civil Rights Act: Gave P right to sue state officials in
federal court under federal law for violations of Constitutional rights.
Passed after the Civil War to protect newly-freed slaves, but now used
for all kinds of claims
(1) Bivens Claim - §1983 equivalent for suing federal officers (rare)
(2) Cannot sue employee personally; only the government itself
vii) Exceptions to waiver of sovereign immunity
(1) Feres Doctrine: military personnel cannot sue the US gov’t or
officials of the gov’t if the injury was incident to service (includes
just about everything). Feres does not, however, bar a recovery by
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a spouse or child of a person in the armed forces if the spouse or
child is directly injured (common with medical malpractice in
military hospitals)
 Every case gets litigated over whether injury was incident to
service (interpreted broadly)
 Already a bar to suit for claims while at war (combat
exception)
 Can sue if not incident to service (i.e., on furlough)
 only involves those individuals in US military.
(2) Rationales
 A/R (similar to Fireman’s Rule)
 Military is its own world
 Suits for military service would undermine military discipline –
civilian judiciary would dictate how military should be run)
 Feres Rationales: (1) no private-law analogue. (2) The FTCA
invokes the tort law of the state where the injury occurred.
This would subject the unique government-to-soldier
relationship to the varied laws of the states. (3) The armed
forces provide substantial compensation in the form of
pensions or otherwise (4) undermine military discipline (5)
judicial branch has no right to tell executive branch what to do
b) Discretionary Function Immunity: (AKA “Basic Policy” Immunity) if
the negligent act alleged is an act of discretion (a policy judgment),
then it is barred  2680(a) of FTCA
 The FTCA does not waive sovereign immunity for “any claim
based upon the exercise or performance or failure to exercise or
perform a discretionary function or duty on the part of a federal
agency or an employee of the government, whether or not the
discretion involved be abused”
 Generally: In a suit for negligence against the US gov’t (or
agent thereof), if the act or omission that caused the harm was
one in which the agent had discretion (interpreted as involving
policy judgment), the claim is dismissed for want of
jurisdiction
 Related to SOP – if an agent was engaged in a policy-making
decision, judicial branch should not tell that agent how to make
policy
 Gov’t does not have discretion to violate a mandatory statute or
regulation – these suits are allowed b/c does not run afoul of
SOP
 Some courts say you can sue US gov’t for not implementing a
plan but not for making the plan. Gov’t is immune for
negligence made at the planning level, but not on the operation
level (BUT Sup Ct says this is too simplistic, indicating the
question is whether the government is exercising discretion
based on public policy, not the level of that policy)
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
Ex. Park bench in Fed park poorly maintained. P sues
claiming negligence. US can defend by saying it was a
discretionary decision not to spend money on that;
however, if there was a plan to maintain the benches and
the government failed to do so, then the claim would be
valid
 BUT Government doesn’t have discretion to violate a
mandatory statute/regulation: if P is claim operational issue
with respect to legislation Congress has already spoken on,
then government no longer has discretion not to follow it but
must follow it
 Whisnant v. US: illustrates that court must decide whether the
challenged action was discretionary (i.e. was it “governed by a
mandatory statute, policy or reg?”)
 If it was discretionary, did the action involve a decision
susceptible to social, econ or political policy analysis
 Design (discretionary)fits above v. Implementation (not
discretionary)
 No definition of what is a design or implementation so it is
a case by case basis
IV.
Duty based on relationships or their absence
A. Nonfeasance: not acting
1. Rule: there is no duty to act affirmatively. BUT if you DO act, you probably
do owe a duty.
i) So No duty to rescue or assist someone; No duty to protect someone
from a third person
ii) Cannot sue someone on the theory that they did not act at all
(1) (policy: P in a better position to prevent the harm)
(2) Yania v. Bigan: P invited to discuss business. D taunted P to jump
into the water. P then jumped into water and dies. D did not help
him and let him die. D’s estate brought negli claim. Court ruled
that D had no duty to rescue P, only a moral duty.
(3) Rocha: D and P are drunk. D taunts P to swim. P then drowns. D
and others try to save P but fail. Basic nonfeasance rule- D owed
no duty. Would not expect P to act negli, as full adult w/ no
handicap and knows he cannot swim.
iii) Exception: Can sue somebody for failing to act if they had a duty to
act, but then you have to look for a duty
iv) PP: difficult to drawn line, fear for liability might actually reduce
altruistic responses, protects autonomy and freedom to do nothing
 Do not argue this unless absolutely sure. Usually misfeasance
(2) Impossible to win case against police w/ claim “didn’t do anything
to protect me”  no duty here
2. D is subject to liability for misfeasance (ACTING BADLY) NOT for
nonfeasance (NOT ACTING)
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i) Misfeasance or malfeasance: acting badly
ii) Look at the totality of the action to see if D is acting badly or just not
acting
iii) Knowing of the need to rescue and knowing that the failure to rescue
could cause further injury is not sufficient to hold that person liable
3. Exceptions to General Nonfeasance Rule
i) Caused Harm: If a person knows or has reason to know that his
conduct, whether tortious (negligent or intentional) or innocent, has
caused harm to another person, then he has a duty to render assistance
to prevent further harm (classic example: hit and run)
ii) Created Risk of Harm: If a person has created an unreasonable risk
of harm, even innocently, a duty of reasonable care arises to employ
reasonable care to prevent the harm from occurring
(1) (arguably not an exception because if you’ve created a risk you’ve
acted in some way)
iii) Statute or Ordinance create a duty  Follow them
iv) Beginning to Assist/ “Take Charge”/ “Voluntary undertaking”: if D
affirmatively acts to assist someone, then have a duty to assist them in
a reasonable way and not leave them in a worse position than when D
found them/offered assistance
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(1) 2 aspects:
 Take charge of someone’s care AND
 Breach – occurs if the caretaker leaves the person in a worse
position than they were before they took charge of their care
(2) Good Samaritan statutes: immunize the rescuer from negligence
liability for injuring someone while attempting to rescue, but
generally apply to medical personnel
(3) Wakulich: guys prompted girl to drink and she passed out; D’s
took her to room in basement and did not call 911  she died of
alcohol poisoning; D’s actually made P worse off by hiding her
v) P and D are in a “Special Relationship”: If D knew or should have
known of the other person’s peril, he is required to render reasonable
care under all the circumstances.
(1) D will have a duty of reasonable care whether or not the D had
anything to do with creating/increasing the risk of the harm to P
(2) Fairly narrowly interpreted
(3) Hinges on facts of control over 3rd party behavior and knowledge
as to that behavior
 Landlord has a duty to 3rd persons to do all that he legally can
to get rid of dangerous condition on the leased premises, even
if it means getting rid of the tenant
 Custodial – control/foreseeability
vi) Special Rela. Classifications:
(1) Carrier-passenger
(2) Innkeeper-guest
(3) Landowner-lawful entrant
(4) Employer-employee
(5) School-student
(6) Landlord-tenant
(7) Custodian-person in custody
(8) Others
 Contractual
 Statutory Duty
 Superior Knowledge
 From International law
 Joint Venture
 construction/maintenance/operation of towers to families when
foreseeable risk of plane crash
(9) List is not exhaustive – court can infer an ad hoc relationship
 E.g. – Wal-Mart to customer, Shopping Center to customer,
Sept 11 security failure at airports, negligent
vii) NB: In all of these exceptions, P must prove a full PFC: [Duty to Act
+ breach of duty ---causes---> Harm]
(1) Causation is actual and proximate
(2) ii. Harm caused in beginning to assist is the aggravation of the
harm (not the original harm)
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 Causation is actual and proximate
 Harm caused in beginning to assist is the aggravation of the
harm (not the original harm)
viii)
Duty not to prevent others from assisting
(1) Podias v. Mairs: D hits guy on motorcycle and leaves. 2
passengers kind of convince him/conspire not to help. Both
passengers and driver held liable.
4. Burden of proof
i) When the rule states “there is a duty” – burden is on D to show there
was no duty
ii) When the rule states “there is NO duty” – burden is on P to show there
is a duty
5. Analysis for test
i) Duty to rescue or assist
ii) Breach of Duty  negli act = not assisting or not rescuing
iii) Actual harm – harm resulting from failure to rescue
iv) Cause-in-fact: but for the breach (failure to rescue) the harm would
not have occurred
v) Prox cause: foreseeable type of harm/p/class of persons
B. Duty to Protect From 3d Persons: usually NO DUTY Except when 3d Party
Attack Exception
1. Traditional Rule: if 3d party act was intentional, cuts off D’s liability
(compare to prox cause – criminal intervening acts)
2. General Rule: No duty to protect from 3d persons; P has burden to prove duty
exists
i) Despite proximate cause’s approach of looking for reasonable
foreseeability of the intervening act, general rule for duty is that the
issue is never reached because duty doesn’t exist (parallels
nonfeasance)
ii) P generally does not have to prove they’re owed a duty (Andrews); in
these cases, P does have to prove a duty exists (Andrews would agree)
3. 3d Party Attack Exception: 3d Party Attack Foreseeable, AND either (1)
special relationship between P and D, OR (2) special relationship between
D and 3rd Party (attacker)
i) 4 Approaches for Finding Foreseeability for 3d party attack
(1) Totality of the Circumstances Test: (Majority) looks at
everything
 Prior similar incidents are relevant (number, nature and
location of prior similar incidents)
 Also looks at the nature of the land, level of crime in the area,
etc.
 BUT lack of prior incidents will not preclude claim IF
landowner knew or should have known that the criminal act
was foreseeable
 Places a greater duty on business owners for foresee risk on
their property
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(2) Prior Similar Incidents Test: (Minority) foreseeability is
established by evidence of prior crimes on or near premises putting
LO on notice.
 RPP would foresee b/c similar things have happened in the
past
 Cons: Too arbitrary/unpredictable to be uniformly applied;
criticized as vague and uncertain
(3) Balancing Test: (Minority) Foreseeability and gravity of harm
balanced against commensurate burden imposed on the business
 Essentially Carroll Towing but analyzed under duty, not
breach
(4) Specific Harm Rule: (no longer used) – LO does not owe a duty
to protect patrons from violent acts of 3d parties unless he is aware
of specific, imminent harm
 (very much like duty to rescue; beyond foreseeability and
requires actual knowledge). As a policy matter, way too
restrictive
ii) Foreseeability is necessary because P will generally have no actual
knowledge of harm in 3d person cases
iii) Rosales v. Stewart: LL (D) allegedly negligent for not preventing
tenant from firing gun in backyard resulting in death of a 10yo. LL
knew tenant shot guns (foreseeable) and D LL had the ability to
prevent the risk (special relationship between D and 3d party (tenant)
iv) Posecai v. Wal-Mart: Woman gets mugged in parking lot of a Sam’s
Club adjacent to a high crime area and sues for failure to hire security
guard. Court found special relationship alone not enough and
proceeded to look for foreseeability, laying out the rules above
4. Other Exceptions:
i) D voluntarily assumed a duty (analog to takes charge exception)
ii) D created risk of harm: if D has affirmatively acted to create a risk of
harm from 3d persons, then duty flows to P (not really an exception
since there has been affirmative action)
5. Employer/Employee: P who has been injured by the tort of an EE can sue ER
for (1) vicarious liability (tort committed within scope of employment) or (2)
negligent hiring, training, supervision
6. Parental Liability for Their Children: unlikely  only if SUPER foreseeable
i) Rule: NO Duty to control children (not vicariously liable) BUT can be
liable for failure to control some specific behavior parent knows or
should know child has a propensity to do
ii) Exceptions:
(1) Parents are only liable for failure to control some specific
behavior parent knows or should know child would do (“super
foreseeability”)
(2) Parent’s activity creates the risk of harm – this is no longer a
failure to supervise situation but a pure negligence claim
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(3) A minority of jdxs allow for vicarious liability when a child acts
intentionally, willfully, or wantonly, but damages cap is low
7. Duty to Warn 3d Persons
i) Tarasoff ct adopts a balancing test to determine whether duty existed.
Factors to balance:
(1) Foreseeability to P (most imp. factor for finding a duty);
(2) Degree of certainty that P will suffer injury;
(3) Closeness of connection between D’s conduct and injury suffered;
(4) Moral blame attached to D’s conduct;
(5) Policy of preventing future harm;
(6) Extent of burden on D and consequences to the community of
imposing a duty to exercise care with resulting liability for breach;
and
(7) Availability, cost and prevalence of insurance for risk involve
 Crt less inclined to impose duty if no insurance is offered
 Insurance spreads the risk around/ makes less burden
ii) Commonly limited to  Therapist/patient relationship: focus on
therapist’s ability to control/prevent the harm to P, rather than control
over D
(1) Cuz Dr.’s trained to read actual threat/foreseeability and implied
control is present
(2) Ex.  Tarasoff: D told Psychologist he was going to kill P. He
did kill P. Held that Pschol. had a duty to warn P.
iii) Kline: apartment complex had doorman then got rid of him; P got hurt
and won  Shows be careful w/ too much security at first cuz might
not be able to cut back later
iv) Dudley: guy in half-way house had criminal record. He then killed
someone while in care of half-way house. Estate sued half-way house.
For P cuz of est. special rela. and foreseeability  Shows importance
of control
8. Negligent Entrustment: liability for giving a dangerous instrumentality (gun,
knife, etc.) to someone that you know or should know is apt to use it in a
dangerous way.
i) Most Common: giving keys to known drunk person
ii) Only need to be in control and give instrumentality
9. Alcohol Cases: issue is whether P can sue D for providing alcohol to 3rd party
that injured P
i) Similar to negligent entrustment, BUT instead of giving keys to a
drunk, giving alcohol to someone you know has keys (could apply to
drivers, fights, injuries to self, etc)
ii) Traditional Rule: Full responsibility on the drinker – no duty to
provider (provider not the proximate cause /drinker is intervening
superseding cause)
iii) Modern Trend: Yes duty, if (1) foreseeable + (2) relationship
between D and 3d party, where relationship is provision of alcohol
(1) Drunk driving is foreseeable
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 Dram Shop Statutes: some states provide criminal penalties to
providers of alcohol for various infractions (e.g. selling to
minor/known to be intoxicated); provides cause of action for P
if D broke a Dram Shop law
(2) Brigance: Restaurant served minors alcohol. Let known driver
drive away and passenger was injured. For P. Imposed duty on
seller of alcohol selling on premises of reason care.
 Have a duty to ascertain if person you are serving is drunk 
esp. if they are a driver
 Misfeasance and not nonfeasance cuz increasing the risk
iv) Social Hosts: Most states say social hosts have no liability
whatsoever, but some states say duty only where provider is beyond
negligent and is at least reckless
V.
EMOTIONAL DISTRESS CLAIMS
A. Emotional Harm: stand alone nonphysical injury – PURE EMOTIONAL
DISTRESS – protects an interest in mental states & compensate for mental
distress intentionally/recklessly caused that doesn’t fit into a tort already
protecting it (offensive battery, assault, false imprisonment)
B. Intentional Infliction of Emotional Distress (IIED)
1. Elements:
i) (1) Intent to inflict OR recklessly inflicting severe emotional distress
ii) (2) by Extreme and Outrageous conduct (intentional or reckless)
iii) (3) that actually causes severe emotional distress (causation link)
(1) NO PHYSICAL INJURY REQUIRED
2. Intent Element
i) Unlike other intentional torts, recklessness will suffice for mind state
(conscious disregard of a known risk – substantially more than
negligence but not quite substantial certainty)
ii) Dual Intent (recklessness): Intent must be both to engage in the
conduct and to inflict the emotional distress
3. “Extreme and outrageous” Element: conduct intolerable in civilized society
(i.e. conduct that would make a juror rise from his chair and exclaim,
“outrageous!”)
i) Common “Patterns” in (Successful) IIED Cases (for outrageous
conduct): different courts weigh these differently. Some will say that
just one is not enough, but others will allow only one
(1) Abuse of Power  Inequity of power: D’s superior power over P
(2) Repeated conduct: frequency and duration of conduct
(3) D knows of P’s vulnerability and acts on it
ii) GTE Southwest: Boss was abusive and threatening to employees.
Found for IIED
iii) some jdx require D to intend the conduct to be extreme and
outrageous; some jdx require one of the above patterns, some require
a combo of them, some don’t
(1) IIED usually hinges on this factor
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4. Actually Causes Element
i) Traditionally: not as concerned with proof of severity of distress (if
outrageous conduct present, then assumed emotional distress was
severe).
ii) Modern: increasingly focusing on severity now, however, and often
require medical testimony
5. IIED Inflicted on a 3d Party
i) Rule: No Transferred Intent UNLESS D intentionally or recklessly
causes severe emotional distress to P And
(1) (1) Bystander P must be “present” at the time and place of the
injury,
(2) AND (2) P is either (a) a family member of 3rd party OR (b) P is
physically harmed resulting from the emotional distress
 “Family member”: is a social construct, so uncertain, but idea
is to draw a line on liability
 Physical injury: (majority) must be physical injury from
emotional distress
ii) PP (for no Transferred Intent):
(1) No actual touching, so could potentially be unlimited liability.
(2) Therefore, those who were actually emotionally hurt wouldn’t be
able to get their fair share of damages because it becomes a race to
the courthouse to see who gets jdmnt first.
C. Negligent Infliction of Emotional Distress (NIED)
1. Rules/Jurisdictional Limits (where negligent conduct directed at P)
i) Originally/Historically, no claim for NIED at all
(1) Mitchell v. Rochester Ry, Co: w/o physical injury, no claim for
emotional distress; P suffered shock from almost being hit by horse
carriage and had miscarriage
ii) Modern NIED: Must first prove negligence PFC (w/ Actual Harm =
emotional distress, D’s negligence = actual and proximate cause of
P’s emotional distress) PLUS one of the following (jdx split):
(1) P suffered an “impact” – no requirement of physical injury, but
does require a touching (5 states); OR
 produces a literal proximate cause limitation
(2) P had “physical manifestations” of emotional distress: Objective
proof of genuineness and severity of emotional distress; OR
(3) P was in “Zone of Danger”
 Majority: P must fear for their physical safety (subjective)
 Minority: P must be at risk of physical harm (objective), but
no need for physical injury
 P has to show that P was in the zone of danger
 Essentially negligence version of assault
(4) Regular PFC case where P proves “severe” distress by expert
testimony (but no other special rules)
(5) No Add-Rules just Negligent Case
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b) States following this approach believe regular elements and proof
before a jury can solve the problem and jury determines credibility
2. Bystander NIED: when P claims emotional distress from seeing someone
else physically injured by D’s negligence (ED to P resulting from injury to a
3d person)
i) JX split: (Split 50/50 among states)
(1) Half of the states follow the following special rules for bystanders,
(2) ½ the states have no separate classifications
 I.e. fall into the categories above (impact, physical manis, zone
of danger)
 (NO special rules for bystanders)
(3) ½ the states Classify P as a “Direct Victim” OR as a
“Bystander”
 Direct Victim: classified by above (impact, physical manis,
zone of danger)
 Bystander classified by special Bystander rules below (Dillon
Elements and LaChusa Factors)
ii) Special Rules for Bystanders: Factors that determine foreseeability
that bystander will suffer emotional harm
(1) Dillon v. Legg Factors (25% of states):
 P and victim must be closely related
 Left open ended
 P was located near the scene of the accident (direct physical
proximity)
 I.e. not far away distance wise
 P contemporaneously observed accident
 I.e. did not learn of accident from others
(2) Thing v. LaChusa Elements (25% of states):
 P is closely related to the injured victim
 Defined as closely related by blood or marriage; relatives
residing in the same household, or parents, siblings,
children, and grandchildren
 P is present at the scene (of the injury producing event at the
time it occurs) AND is then aware that it is causing injury to
the victim
 And as a result P suffers serious emotional distress
 a reaction beyond that which would be anticipated in a
disinterested witness BUT not an abnormal response to the
circumstances (i.e. thin skull rule does not apply here)
 Called thin skin rule by some
(3) Burgess Exception: If P and D are in a special relationship then
can sue under regular negligence (and don’t have to meet special
bystander rules)
 RULE: because of special relationship, patient can sue doctor
for breach of preexisting duty
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
Ex. funeral cases; doctor-patient relationship (negligent
misdiagnosis or misinformation)
 Pretty much just a way to move case from bystander to
modern/regular NEID
(4) CA: direct V = normal PFC; bystander = LaChusa
(5) Differences in LaChusa from Dillon:
 Defined “closely related” and now more exclusive than Dillon
 Ex. excludes BFF and fiancée
 At scene of crime not near
 Added “serious” then defined serious emotion distress
 Thing is Pro-D and Dillon was Pro-P
 Dillon was very liberal, Thing was very conservative
 Dillon was vaguer/harder to apply
3. Duties of Care to Protect Emotional Well-being Independent of Physical Risks
i) Issue: what if there’s no risk of physical injury to anyone at all? Cts
mostly very cautious and find an excuse not to include it
ii) John T. Rhines: Mishandling of a dead body. Ct applies zone of
danger rule, which would deny recovery because there’s no fear of a
physical injury.
iii) Boyles: Boyles secretly videotapes himself having sex with a girl. Girl
sues for emotional distress resulting from the incident. Ct says that in
TX, only way she can sue is if she’s in a special relationship, which
she’s not
VI.
Strict Liability: liability w/o proof of fault
A. Underlying Policies for Products Liability
1. Enterprise Liability: cost of doing business. Also, mfg (who are in a better
position to cover themselves) can spread costs of liability by passing them to
consumers or purchasing insurance (big theory for products liability)
2. Calibresi theory: Consumers ultimately end up choosing safer companies
because they have cheaper prices. Mfgs who cause more harm face more
liability and therefore must offer higher prices. Consumers then inadvertently
buy the safer products when they buy the cheaper products.
3. Consumer expectations: consumers expect products to be safe, and should
have a recourse when those expectations are dashed (essentially a warranty
theory)
4. Practicality: There are certain defects in products that are clearly caused by
fault, but it is very hard to prove. Ps should have another route to proving
their case
5. Fairness: Enterprise getting the benefit of the activity, so it is fair to allocate
the loss to them and not the consumer, who did nothing but use the product
B. Underlying Policies for Vicarious Liability:
1. Deterrence: employers must work harder to prevent accidents
2. Employer has control over employee, so as a matter of fairness should take
responsibility  cuz EE gets the benefits, should bear the burdens as well
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3. Enterprise liability: liability for harms caused by actions of an employee
considered part of doing business (see above)
VII.
Vicarious liability
A. Respondeat Superior: tort claim against employee w/ a SL claim against
employer (strict employer liability)
1. Rule: Employer is strictly liable for the torts of employees committed within
the scope of employment
i) Employer guilty is above is met, even if took crazy precautious steps to
prevent/train employees from committing torts
(1) BUT more training equals less accidents and therefore less
insurance/price increases on consumers
2. Elements
i) Tortfeasor is an employee (NOT an independent contractor –
employer not liable for torts of independent contractors)
(1) right to control is big giveaway of a EE rela.
ii) Employee must commit a tort (not just an injury – therefore, there is
underlying fault, just not employer’s fault)
iii) Must be within the scope of employment (jury issue)
(1) If you’re on the job (at job site, during working hours) – slam
dunk case, even if disobeying employer’s directions
(2) Coming and Going Rule: EE is not w/in scope of employment
WHEN going to work or coming home from work (i.e. normal
commuting)
 Exceptions: Where trip/commute provides an “incidental
benefit” to ER [not common to ordinary commutes]
 Dual Purpose (major exception): During the commute, EE
is doing something for employer.
 (Ex. Special Errand: on errand for employer on way
home)
 ER Pays for travel time and transportation expenses: b/c
trying to enlarge circle/pool of employees so willing to pay
for travel expense to make job more desirable .:. benefitting
employer
 Westinghouse Electric: Westinghouse EE hit cop on
the way home, but employer liable because paid for
travel time and expenses
 Special Hazard Exception: Applied to people having to
commute long distances, often to a remote job site (home to
work site as opposed to home to office, often where
dangerous to get to site because of winding roads, etc). (Ex.
Construction site)
 Require EE to drive to work to use car at work
 If EE is on-call all the time
 Edgewater Motels: guy got drunk and negli burned
down hotel; ER held liable (w/in scope of employment)
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cuz drinking w/ guy for work, on call 24/7, and doing
work in hotel room
(3) Frolic and Detour Rule: Detour is w/in scope; Frolic out of scope
 Detour: (temporary deviation), ER remains liable (EE is w/in
scope)
 Frolic: when going off the path for own personal mission
(extended in time or distance or so different from the SM of job
duties); ER not liable (EE not w/in scope)
 Factors: Time and Space and EE’s mental state
(4) Motivating Emotions Test (for sexual battery):
 Lisa M: Dr. fingers girl while on the job; crt was reluctant to
hold hospitable liable cuz conduct was so unusual/startling that
would be unfair to hold hospital liable not predictable risk
3. Even if a respondeat superior claim fails, can still try to get on a plain
negligence claim – negligent hiring, training, supervision claims
Products Liability
A. Overview:
1. Covers only D in stream of distribution and only applies when the actual
harm is physical injury to a person or to property (i.e. NOT product itself)
i) Anyone in the chain of distr. can be sued under a product liability
claim
(1) “Chain of distribution” = Mfg  Wholesaler  Retailer  P
(2) If retailer sued, has right of indemnity against others higher in the
chain.
 This makes it easier for Ps
(3) Don’t have to be the person who bought the product to sue – just
have to be injured (pre-60s needed privity, so did have to be
purchaser)
2. Theories: multiple theories of recovery such that if one fails, can always sue
on another (so SL in part only)
i) Breach of Warranty (Traditional); must be in privity w/ manufacturer
ii) Negligence: PFC case w/ breach/negli conduct being product contains
a defect and actual harm (clearly, personal injury or prop damage is
cognizable)
iii) Strict liability: (Modern [incl. CA], easiest path for Ps); sue anyone in
the chain of distribution and then given a right to indemnify self by
impleading all the way back to the manufacturer
B. SL Elements for Defective Products – (P must prove that defect is an actual and
prox cause of P’s harm)
1. Legally cognizable harm (physical injury to person or property)
i) NOT damage to product itself
2. Actual Cause: Defect actually caused harm
3. Prox Cause: Harm was within the scope of risks created by the defective
product
4. Defect existed when it left mfg’s control
VIII.
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i) substitutes for duty and breach of duty analysis
5. Product is defective (3 Categories manufacture, design, or warning)
(1) Defective: when is it unreasonably dangerous when used in an
intended or reasonably foreseeable manner
ii) Manufacturing Defect: (production flaw; only has to affect some
products); SL to mnft. defect
(1) R.3d Approach: physical departure from the product’s original
design even though all possible care was exercised in preparation
and marketing
 Lee v. Coca-Cola Bottling: P was injured when a coke bottle
exploded in her hand.
(2) “Consumer Expectations” Test - (R.2d 402A): Dangerous
beyond the expectations of an ordinary consumer w/ ordinary
knowledge of the product’s characteristics
 All P has to show is that a reasonable consumer would not
expect the defect (very pro-P)
 Very lay-person’s test – did not require expert testimony
 Used for manufacturing Defect and Design flaw
 Ex. on NO: If you cut yourself w/ a knife cuz ordinary
consumer would expect the knife to be sharp.
(3) Manufacturing defect (when negligence claim, rely on res ipsa
loquitor claim)
(4) For Food:
 Rd. of Products Liability: (Majority in Jackson): defective if a
reasonable consumer would not expect the food product to
contain that ingredient
 Foreign Natural Distinction: food is defective IF
thing/ingredient in food not natural (foreign) to the food
 Ex. A chicken bone in a chicken enchilada is not defective,
BUT a chicken bone in a beef enchilada is defective.
 Rejected view in Jackson but CA’s rule
 Jackson v Nestle-Beich: P broke tooth on hard pecan
shell. Sued the manufacturer; NO SL cuz reasonable
cust may have expected that ingredient
iii) Design Defect: Basic prob in how product is designed  affects all
products; expensive fix for D
(1) R.2d Consumer Expectations (CE) Test: (See above)
 Leichtamer v. American Motors: cars roll-bars did not
protect jeep when flipped  meant to protect on roll over; P’s
killed; P won
(2) R.3d Risk-Utility Balancing (RUB) Test: (Majority) prove the
benefits/utilities of the challenged design do NOT outweigh the
risks of the design
 Essentially Carroll Towing: Risk of product’s design (not
conduct) outweighs utility of design
 R.3d also require a P using RUB to prove RAD:
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
P must show a Reasonable Alternative Design (RAD):
there was a safer and (technologically and economically)
feasible alternative, that would have prevented or
significantly reduced the risk of injury, without
substantially impairing the product’s utility
 Helps P  if alternatives already exist on the market
 D has edge in RAD cuz usually manufacturer has
already tested alternative designs
 Best evidence is expert testimony of a competitor
saying it can and they do actually do it differently
(3) State Splits
 Some use CE alone (most pro-P test, unless defect obvious)
 Some use RUB alone (Thought to be fairer and most logical
test overall because it’s so technical) R.3d
 (some don’t require RAD)
 Some states allow P to choose freely between tests, including
pleading in the alternative
 Knitz v. Minster Machine: P can pick between tests
 Factors relevant to the evaluation of the defectiveness
of the product design are (1) the likelihood that the
product design will cause injury, (2) the gravity of the
danger posed, and (3) the mechanical and economic
feasibility of an improved design”
 CA and other states – P chooses between the 2 theories but
limits CE drastically (burden of proof on D in RUD and CE not
allowed for complex designs
 Barker v. Lull: shifts burden of proof in RUD to D
 Soule v. GM: qualifies Barker by limiting CE test to
simple designs; if product complex, cannot rely on CE test
iv) Warning/Information Defect (marketing defect); product may be
perfectly fine in the way it was manufactured and designed but may
still be defective if comes with inadequate warning or dangers on how
to use it
(1) RULE: A product becomes defective when product’s foreseeable
risks of harm could have been reduced or avoided by a reasonable
warning and the omission of such warning renders the product
unreasonably unsafe (Essentially a negligence test)
 P must Prove: that if a proper warning had been given, P would
not have been hurt. (i.e. that lack of adequate warning caused
the injury).
 Most Courts presume that P would have read and heeded
the warning, shifting the burden of proof to the D to
overcome that presumption
(2) Aspects:
 Form: location, what it looks like (size, easy to read), etc
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 Content: Must be comprehensible/clear and inform of real risk
(3) 2 types of Warning:
 activity is dangerous
 people need not risk the danger posed by such activity to
achieve desired result
(4) Defenses
 Obvious Dangers: No duty exists to warn of dangers that are
obvious or should be obvious
 BUT could still be liable if people need not risk the danger
posed by such activity to achieve desired result
 Liriano: guys hand gets in trouble in meat grinder cuz no
warning of hand gaurd
 Rationale: If you had to warn for everything, then people
become less likely to read any of the warnings
 If a slight change in design would prevent serious injury, the
designer may not avoid liability by simply warning of the
possible injury
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