Torts Outline
Don’t Forget!
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Use Headings
Tell her what the tort is using the facts
Deal with the counter-arguments
o All duty issues together, all breach issues together
Majority/minority approach – know who is going to want each test and why
o Only say a little about policy in the essay portion
Go through all the injured plaintiffs
Who caused the harm – defendants
How did they cause the harm –> what kind of tort
You can say there is negligence and intentional tort at the same time
If you do strict liability don’t also do negligence
Start with the people who are closer in time to the injury
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[Negligence]
1) DUTY –
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Is a duty of care owed?
D must owe P a duty of care in order to be held liable under a theory of negligence
It is easy to find duty when there is a commission
In cases of omission D must have an affirmative obligation to act.
Omission/Commission
Affirmative Obligations to Act
Generally, there is no duty to rescue because…
 Increased litigation
 Inept rescue (endanger yourself/make things worse)
 Personal autonomy (law is reluctant to impose duty on people)
 Difficulties in determining what a reasonable standard of care is
Basis for an affirmative duty to act…
 Special Relationship
o Common carriers, inn keepers
o A Judge answers the legal question of what special relationships count; the Jury determines
if the facts support that relationship
 Begin to rescue/ aid
 Reliance
 Innocent creation of risk
 Financial gain
Affirmative Duty to Aid
1) Special Relationship
Just because D knows that there is a danger does NOT mean D owes a duty of care to P
Harper v. Herman: P a guest on D’s boat; P dove into the water unannounced and severed his
spinal cord
 No special relationship because..
o P didn’t lack an ability to help himself
o Lack of experience is not enough
o D received no financial benefit from P
o Apparent hazard (even a child would have known)
2) Begin to rescue/aid
 Some jurisdictions require that you begin to rescue and leave worse off --> duty
Farwell v. Keaton: D and P hit girls who have their friends chase them down, P severely beaten while D
escapes; D begins to rescue but then leaves him in a car in grandparents’ driveway, D dies
 Begin to rescue/aid – D may have been better of if P left him alone
 Majority opinion also finds a special relationship of co-adventurers
o Most jurisdictions would not stretch the special relationship doctrine so far
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3) Reliance (promissory estoppel)
Mixon v. Dobbs House: Restaurant owner promises to tell employee when his pregnant wife calls; fails to
tell employee that his wife was giving birth; wife gives birth in her home
 A promise was made and relied on; the promisor chose to act  accepted the duty
4) Creation of risk
 Historically it was a negligent risk
 Now some jurisdictions say its negligent or non-negligent
Affirmative Duty to 3rd Party
Triangulation of special relationship, D has special relationship to 3rd party so D has a duty to protect P
from 3rd party
 Owe the duty to identifiable 3rd party
 Other jurisdictions think its owed to reasonably foreseeable 3rd party
Tarasoff v. Regents of the University of California: Patient tells psychologist defendant about his intention
to kill victim. Psychologist fails to warn victim. Court holds that he had a duty of reasonable care to
protect the victim
 Omission – failure to warn (defendant’s argument)
 P’s argument: triangulation
Dissent: Mosk doesn’t like the dicta – he is troubled that the court says that if you predicted or should
have predicted you have a duty to warm
Concerns with triangular special relationships: Undermines patient/therapist trust, ineffective (patient
won’t talk), hard to predict what he patient will do, harm to the patient, systemic burden, burden to
getting to the third party, confidentiality issues
Pros of triangular special relationships: Therapist is uniquely situated, confidentiality is not absolute,
preventing harm
Policy Bases for No Duty
Strauss v. Belle Realty Co.: Old man falls and trips on stairs during NY blackout caused my ConEd. ConEd
moved for summary judgment because the contract was with the realty not with P so no duty was owed
to P for policy reasons NOT for reasons of privity of contract
 Policy reason: too many plaintiffs, ruinous liability for D
Dissent: Unsubstantiated decision that they couldn’t absorb the liability; why not consider policy on the
plaintiff’s side; lots of people were injured
Moch v. Rensselaer Water Co.: P’s building is destroyed by fire due to lack of water to fight the fire. P sues
D (water company) for failing to supply the city with sufficient water
 Cardoza says that it is an act of omission so no duty of care, finds no special relationship
o Argument for commission is that they were giving water and then they stopped
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o Policy reasons: The water company will go bankrupt, uses omission argument to avoid
addressing this
Reynolds v. Hicks: Nephew gets drunk at a wedding and injures someone driving home, D sued under a
theory of negligence for serving alcohol to a minor. The court found that there was no duty
 Omission: Failed to stop him from drinking
 Commission: They supplied the alcohol, so they created the risk
 Some jurisdictions thinks that it needs to be the negligent creation of risk to find liability for social
hosts
o Distinguishing social hosts from commercial vendors
o But the source of alcohol doesn’t matter to an injured party
 Policy reasons: Burdens on the social host, parental exception; don’t want to burden the courts
o The statute was intending to prevent harms to the minor not harms to the public
 Dissent: Criminal statutes should be imposed in civil liability; majority conflates duty with breach
Duty Landowners and Occupiers
Liability is imposed on the possessor of land not the owner
Jurisdictions split
 Some maintain the categories
 Many on retain a separate category for trespasser
 Many of abolished some or all of the categories
Heins v. Webster County: P goes to hospital to see his daughter who works there and maybe discuss
playing Santa, slips and falls, court eliminates the distinction between invitee and licensee
 Duty to exercise reasonable care for all lawful guests; status shouldn’t matter; not that
burdensome
 Factors for determining if reasonable care is met
(1) Foreseeability of harm
(2) Purpose of entrant’s visit
(3) Time, manner, and circumstances of the visit.
(4) How the property is to be put to use.
(5) Reasonableness of the inspection, repair, or warning.
(6) Opportunity and ease of inspection and warning.
(7) Burden on landowner, and/or community in providing protection
 Dissent: Infringes on personal autonomy and privacy for homeowners; bigger burden for
homeowners most people that come onto land are licensees and homeowners will now be liable
for things they didn’t know about
 When you eliminate the categories the jury is going to have a larger role  less predictable
 Policy for eliminating invitee/licensee distinction: Status shouldn’t matter, urban industrial
society (people own smaller plots of land they should control all of it), current system is
arbitrary
 Policy against: Predictability, protects landowners
Trespasser: Enters or remains on the land without possessor’s consent or permission
 General Rule
o No duty of reasonable care regarding conditions of or activities on premises
o Often, duty to refrain from intentional, willful, and wanton conduct
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Exceptions
o Discovered Trespassers – Possessor knows that T is on the property
 Duty to refrain from intentional, willful, wanton injury
 Some jurisdictions: Duty to use reasonable care, particularly where risk from
activity on, as opposed to conditions of, premises (Omission v. commission
distinction)
o Frequent Trespassers: Example – person who regularly cuts across your lawn
 Jurisdiction “A”
 Duty to warn of hidden dangers
 Duty of reasonable care to avoid harm through activities
 Jurisdiction “B”
 Also a duty of reasonable care for activities AND conditions of premises
o Rationale: looks like tacit permission, seems like licensee
o Child Trespassers
 Restatement says liability if…
 (1) Possessor knows or should have known children are likely to trespass (2)
possessor knows or should have known that condition poses unreasonable
risk of death or serious bodily injury (3) Children do not discover the
condition or realize the risk of the condition (4) Utility of maintaining
condition and burden of eliminating it are slight compared with the risk (5)
possessor fails to exercise reasonable care to protect the children
 Old View: Attractive nuisance
 Dangerous conditions entice children onto land
 New View: Trespassing children are foreseeable, whether or not they are enticed
Licensee: Has permission to enter the premises, but no material benefit
o Permission is implied from (1) possessor’s conduct and (2) from the condition of property
o General Rule
 No duty to (1) inspect premises (2) discover dangerous conditions (3) to make
premises safe for the visit
 NO duty to warn against dangers you reasonably should have known of
o Some jurisdictions:
o Duty to warn of known hidden dangers AND/OR duty to make safe known dangers
Carter v. Kinney: P came over to the D’s house for a Bible study group and slipped and on some ice;
P claimed that D had a duty to warn him about the ice or remove it. Court finds that P was a
licensee
o Other jurisdictions: duty of care regarding activities on, as opposed to conditions of, land
 Restatement: Possessor is liable for careless execution of activities, IF:
 Should expect licensee will not discover or realize the danger AND licensee
does not know or have reason to know of the activities and the risk involved
o Old view: Licensee = Trespasser
 No duty expect to refrain from intentional, willful, wanton conduct
o Modern view: Licensee is expected to accept premises as possessor maintains them
 May be entitled to be warned of or make safe known conditions
Invitee: On premises with possessor’s permission AND land is open to the public OR business
reasons that concern possessor (some jurisdictions require a material benefit to the possessor)
 Rule: Possessor owes an affirmative duty of reasonable care to discover damages AND
to protect against dangers of which possessor is or should be aware of
o Courts are divided on whether there is a duty if the danger is open and obvious
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Is notice enough to make the land safe?
Status can change
Example: A park open to the public (invitee) after it closes (trespasser)
Duties Among Family Members
Broadbent v. Broadbent: D is watching her own son swimming in the pool, but leaves to answer the
phone. When she comes back he's got severe brain damage. Father sues as conservator of son.
 Court finds that parental immunity does not bar the suit
 Established reasonable parent test
Parental Immunity – [NOT AN AFFIRMATIVE DEFENSE]
Old Rule: Duty to the world v. duty to the child; where there is duty to the entire world then the parent
can be sued
New Rule: Essentially eliminates parental immunity. General parent standard (breach)
 Broadbent concurrence: Sometimes it is replaced with a palpably reasonable standard
o Allows for different views about how to raise a child
Maryland – TOTAL parental immunity
 Rationales
o Fraud. Depletes family resources, parents inheriting, interference with parental
care, can’t be a common law standard for parenting,
California – NO parental immunity
 Rationales
o Broadbent majority: Reasons not as compelling as the need to protect children:
injuries are more disruptive than lawsuits. This stuff is just about insurance:
family resources are not at stake. Parental discretion is not absolute. Parents
owe a parental duty to their children.
Wisconsin – No parental immunity EXCEPT
 Exercise of parental discretion regarding food and care
 Exercise of parental control
If a child can’t sue the parent than the 3rd party generally can’t sue the parent
Example: Child drives motorcycle, can’t sue parent, child sues government for negligently
maintaining roads, government CAN’T sue parents for letting the child drive the motorcycle
Liability insurance motivates the parties to sue, but insurance companies will start to exclude coverage
for inter-family lawsuits
Duties Owed By The Government
 It is much easier to sue the government if the actions are ministerial
o Driving through the town
 More difficult to sue if the government is engaged in discretionary behavior
o Chasing a criminal
 Exceptions of government immunity
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o Creation of a risk
 Affirmatively engaging the public in helping them
o Reliance
 NY rule for 911 calls – there must be reliance AND direct contact
o “Special relationship”
o Beginning to aid (commission) / witnessing the harm (omission)
 Rationale
o Interfering with the separation of powers -- The court shouldn’t decide how other branches
of government allocate their resources
Riss v. City of New York: P asked on many occasions for police protection but they failed to protect her
against her threatening lover
o Dissent: It’s not really interfering; the government can make their own choices.
o BUT you would still have to show breach and that wouldn’t be there if the burden was too
high anyway
Generally, police pare immune UNLESS there is an understanding
Duties To Avoid Emotional Harm – negligent infliction of emotional distress
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Only use this if there IS NO PHYSICAL INJURY
Does the defendant have a duty to the plaintiff to prevent these kinds of emotional harms?
Generally, plaintiffs can recover from emotional distress if it is attached to a physical injury
Tough areas
 Emotional distress w/out physical harm or impact (direct victim)
 Some physical harm resulting from the emotional distress (direct victim)
 Plaintiff experiences emotional distress because they are witnessed to physical harm to a 3rd party
(indirect victim)
Discomfort with duty to avoid emotional harm
 Hard to measure harm– problem in assessing damages
 Worried about fraud
 Shouldn’t encourage wimps
Duty to Direct Victims
Old Rule: Impact requirement
 Policy reasons for old rule:
o Protects against fraud
o Avoids flood of litigation
o Gives D notice – foreseeability of P
 Policy reasons against it:
o Role of conjunctive physical injury is arbitrary
o Fraud is not a huge issue
o Eliminating the rule would not encourage a flood of litigation
o Arbitrary difference between harm to mind and body
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Falzone v. Busch: Falzone was standing in a field next to a roadway when D’s car struck and injured him;
wife (P) was in a parked car and thoughts she would be hit as well so she became ill and required medical
attention. Court allows P to recover damages.
New Rule:
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Elements of recovery based on emotional distress (zone of danger approach)
 Plaintiff’s reasonable fear for an actual immediate substantial physical injury w/ severe
emotional distress
 Some jurisdictions say -- physical manifestation of the emotional injury
 Other jurisdictions – permanent physical injury
 Some division on immediacy
o Reasons for reasonable fear standard (don’t want unlimited number of plaintiffs)
 Possible eggshell psyche plaintiff
 Emotional Eggshell can’t recover
 Concerns about fraud
 Reasonable notice/foreseeability by defendant
 Deterrence; so potential D’s can know about potential P’s they could harm
Survival actions –possible depending on the jurisdiction
 Recovery for the pain and suffering from the period of time between the accident and the death
 Estate would try to recover for survivors of the decedent
Gammon v. Osteopathic Hospital of Maine, Inc.: P’s father dies in D hospital, and upon receiving a bag of his
father’s “personal effects” there was a dismembered leg that was not his father’s. P began having
nightmares, and his relationship with his wife and child suffered. Court rules in favor of P.
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Elements for recovery for emotional distress
o Highly foreseeable emotional distress that would affect an ordinary person
 P not an eggshell in psyche – heightened sensitivity due to circumstances, a
reasonable person could have reacted that way; highly foreseeable given the
circumstances
o Severe emotional distress
 Not necessarily physical symptoms
 Distress needs to have a longer duration than a single instance
o Special relationship
 Not a true special relationship – but there is arguably a special relationship between
hospital and patient’s son
Falzone v. Gammon
 Gammon treats physical = emotional ; focuses on foreseeability
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Duty to Indirect Victims
 Do entire negligence test for direct victim
 And then you do Portee test v. Zone of Danger
Bystander claims –There is a duty that was breached that caused damages to a 3rd party, but P wants to
recover as a witness to that.
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Zone of Danger Test
 You are not extending the pool of plaintiffs; only the damages are being expanded
 A person who would already have a claim under direct emotional distress can now also claim
damages under indirect emotional distress of watching the harm happen to someone else
Portee Test
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Portee v. Jaffee: Mother sued for her emotional distress caused by watching child dying in elevator.
Mother suffers severe emotional distress, some physical symptoms. Court found that the
apartment building owed a duty to the mother in these circumstances.
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Elements
o Contemporaneous observation – she saw him die
o At the scene of proximity (but this might not be required)
o Serious injury or death to the 3rd party
o Interfamilial or marital relationship
 Courts are divided about co-habitants warrant recovery
o P must suffer severe emotional distress
o Cannot be based on a mistaken belief
Possible suits in Portee:
 Negligence: injury, distress, pain and suffering of child
 Wrongful death: emotional distress to relatives of child lost (lost wages if adult)
 Emotional distress of mother: watching her son die in a horrific manner
Loss of consortium
 Today it is a viable claim for both husband and wife
 Parents can find loss of consortium for their child
 SOME jurisdictions allow children to seek loss of consortium for harm done to parents
Attorney Mal-Practice: Difficult to recover emotional distress , prove negligence, quantify recovery
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2) Breach – what is the standard of care?
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acting unreasonably; little “n” negligence
Historical Development of Fault
Writs (judicial command) required to bring D into court
 Writ of Trespass
o Purpose evolved from punishment to offering a remedy for the injured
o Strict Liability -- no need to show fault or blame worthiness
 D’s voluntary conduct caused a (1) forcible, (2) direct, (3) and immediate invasion of
P’s person or property
o Many harms without remedies
 Writ of Tresspass on the Case
o Remedy for obvious wrongful conduct that caused injures that were NOT forcible, direct,
and immediate
o Must show actual damages (source of modern law requirement of damages)
o Required casual relation between D’s actions and P’s harm
Theory: Strict Liability was the norm before the industrial revolution
Fault principle likely developed because…
 As society became more complex, more unintentional torts  need for negligence
 OR negligence was a capitalist protection device
o Strict liability made industry and innovation too costly
o Negligence encouraged innovation
Brown v. Kendall: D accidentally injures P while separating his dog from P’s dog. Court required. The
court ruled that P has the burden of proof to show that the defendant did not use ordinary care under the
circumstances. D is not liable in trespass without showing negligence/fault.
Factors and Equations to Assess Reasonableness
Adams v. Bullock: D owns a trolley line, 12 year old P is walking on a bridge and swings a wire off the
edge, the 8 foot wire hits the trolley wire and the boy is shocked and burnt. P claims D was unreasonable,
D claims that he took due care and the accident was unforeseeable
Factors:
 Danger (magnitude)
 Foreseeability (determined by reasonable, prudent foresight)
 Feasibility
 Probability of harm
 Value of activity (social benefit/ cost to continue activity)
 Custom or industry practice
 Lawful action
United States v. Carroll Towing Co: Barge was unmanned for 21 hours, broke free and hit a tanker causing
it to sink. Hand rule that given the feasibility of inspecting the barge at least once during daylight hours
and the high cost of not manning the barge, bargee’s conduct was negligent
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Formula: B < P x L  negligent
 Burden < probability x the magnitude of the harm
 Rationale: Negligence law a means of regulating conduct to promote efficiency; captures an
intuitive way of assessing risk; reflects the golden rule
 Policy problem: How do we determine the magnitude of harm and the probability in situations
that hare highly speculative to a normal person; juries are rarely instructed to assess
reasonableness in terms of the equation, presumes a uniform assessment of cost-benefit analysis
and gives no room for variations in taste for risk
Concept of Reasonable Person
Objective Standard: We ask whether the risk was foreseeable to a reasonable person and if D did all a
reasonable person could reasonably do to prevent harm
 To set a minimum standard of behavior for the general welfare of the community
 Deterrence
 Administrative Ease
 Compensation
 Fairness to victim
Exceptions to the reasonable-person standard of care:
 Physical disabilities (distinct/apparent)
o Standard of reasonable person with the disability
 Rationale: Victims on notice of the risks
 Children
o Normally held to standard of reasonable child of similar age, intelligence, and experience
o Especially when engaged in children’s activities
 Rationale: Can’t presume that children have the capacity for reasonableness
o Some states
 <6-7: conclusive presumption they can’t comprehend risk
 7-14: rebuttable presumption they can’t comprehend risks
 Rationale: presumptions about capacity to appreciate reasonable calculus
o Exceptions: reasonable adult standard of care when engaging in adult activities
 Rationale: P’s ability to defend against and expect the risk
 Emergencies
o Held to standard of reasonable person confronted with the emergency
 Rationale: Can’t think with same reason and care in an emergency
o Some states reject the emergency doctrine
o Rationale: Fact of emergency considered in the “circumstances”
 Common Carriers
o Some jurisdictions say heightened standard
o Other jurisdictions say ordinary standard of care
No exceptions for…
 Mental disability (total insanity is sometimes an exception)
o Rationale: Problems in line drawing, fraud, victim’s ability to protect themselves
 Gender
o Rationale: Could lead to marginalization, reasonableness doesn’t differ, status quo
 Elderly
o Expectation of capacity in most; have learned concept of reasonableness
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Bethel v. New York City Transit Authority: P was hurt on a bus when the wheelchair accessible seat
collapsed underneath him. The case overrules the extraordinary standard of care for common carriers.
Common carriers should be held to a reasonable care standard
 Why were common carriers held to a higher standard of care?
o Special relationship: high risk, people dependent on the mass transit
 Bethel Standard: If something is really risky activity that fits in with the B exception; no need for
heightened standard with Learnedhand equation
Roll of Judge and Jury in Assessing Negligence
Andrews v. United Airlines, Inc.: Action by P regarding a fallen briefcase that injured P at the end of a flight.
D moved for summary judgment, which court denied. The court found that a reasonable jury could find
that United was negligent or not negligent based on the facts. United, being a common carrier, had a
“heightened standard of care.” Since reasonable minds could see the case falling either way, the court
ruled that summary judgment was not appropriate.
 The Court here is trying to use a heightened standard for the common carrier even though NY had
already eliminate that standard
 If a heightened standard of care is applied it is very unlikely that the jury would find for D
Rationale for judges deciding the standard of care:
 Has experience and knowledge about tort law / nuanced understanding
 More objective
 Understands the goals and policies of tort law
 Less influenced by extraneous information
Rationale for jury deciding the standard of care:
 Less bias because it is a collective view
 Circumstances vary
 More in touch with the common man
 More individualized
 Less paternalistic
In extreme (obvious) cases negligence is a matter of law and decided by judges, but most often
circumstances vary and juries decide
Roll of Custom
 Custom isn’t conclusive, it is evidence
Trimarco v. Klein: P was injured when he fell through a shower door that was built with thin glass, as
opposed to safety glass, which was defined as the industry standard. Court found that custom and usage
may be used to help prove that one charged with negligence has fallen below the required standard of
due care
Role of custom – custom isn’t conclusive, it is evidence we need to know what the custom is, we don’t
want the industry to set the standard
 It may show/be evidence of the standard of care
 Helps show feasibility – if enough people are doing it, it can be done
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o Feasible for the industry NOT for the specific actor
o Capacity to conform to customs will only be considered when there are few others to look
to as examples in a fledging industry
Shows foreseeability – if the custom was about preventing THIS KIND of danger
If an industry has a single custom, the court may be weary of P’s assertion that there are safer
ways
P can show a feasible alternative, but if it is not used anywhere it is reasonable for D to be
unaware of the possibility
Existence of a costly custom may make the court weary of the societal impact if a jury or court
determines the custom to be unreasonable
Roll of Statutes
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First question: Is that statute meant to prevent harms?
Second question: What is the type of harm? Who wants a narrow interpretation? Who wants a
broad interpretation?
Third question: Was it trying to protect this type of plaintiff?
Sometimes there will be statutes that set a standard of care for tort purposes; issues arise in cases with
statutes that DO NOT address tort law
Martin v. Herzog: P was killed in an accident between his buggy and D’s car. P was driving without lights
and D was driving on the wrong side of the road. Both P and D violated a statute
 D waned the absence of lights on P’s buggy to be seen as a prima facie evidence of contributory
negligence
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Violating the statute is some evidence of negligence but does not prove negligence on its own
Impson v. Structural Metals: D’s truck attempted to pass the car within a prohibited distance of a highway
intersection. The car turned left into the intersection and was struck by D, who was attempting to pass
the car in the left hand lane. Court ruled that the violation was unexcused. P was entitled to judgment
An excused violation of a legislative enactment is not negligence:
 Violation is reasonable b/c of the actor’s incapacity
 He neither knew nor should know of the occasion for compliance
o Lack of knowledge about facts NOT lack of knowledge about law
 Unable after reasonable diligence or case to comply
 Confronted by an emergency not due to his own misconduct
 Compliance would involve a greater risk of harm to the actor or to others
Approaches: (don’t spend a lot of time on this, just use approach 1 with Impson factors)
Minority 1 (rare) approach: Negligence per se
 If you violate the statute you found negligent
Minority 2: Some evidence of negligence
Approach 1: Negligence per se w/ excuse
 Judge decides what kinds of excuses are allowed, the jury decides if the facts satisfy that excuse
Approach 2: Rebuttable presumption
 We presume negligence until proved otherwise
 Jury decides
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Violation of licensing statue
 Example driver’s license: Not really relevant of whether you drove with due care
 Some jurisdictions with things like medical licenses as evidence of negligence
o But many jurisdictions would treat it like driver’s license
If the statute requires what is below the required standard of care then compliance is helpful to the
defendant but is not determinative
Proving Negligence
Circumstantial Evidence
Negri v. Stop & Shop: P slipped and hit her head on the floor in D’s grocery store. There were broken jars
of “dirty and messy” baby food nearby. A witness had not heard any jars breaking in that area for
approximately twenty minutes before the accident and the aisle had not been cleaned for one or two
hours.
 Court ruled that the circumstantial evidence permitted the inference that D had constructive
notice; enough to withstand summary judgment
Gordon v. American Museum of Natural History: P is going upstairs to D’s museum, trips on a piece of
paper.
 Court ruled that a finding of constructive notice requires that the defect be known or apparent for
enough time that we can presume D did or should have discovered it.
 P did not show that D knew about the problem  finding for D
Res Ipsa Loquitur -- The thing speaks for itself
Circumstantial Evidence of Negligence
 Way to prove negligence even when P can’t show exactly what happened
 Fault still needs to be shown, but without evidence of specific acts
Elements
 Type of accident that would not ordinarily occur without negligence
o Accidents that are more likely than not the result of negligence
 Examples: freakish and improbable accidents (elevator falling several stories,
handrail stops, while escalator continues, soda bottle explodes)
 Analysis can change with advances in technology
 Instrumentality within D’s exclusive control
o Negligence is more likely than not, and the defendant is the source of negligence
o May be enough to show that D has power or right of control even if not actual control
 Prosser – show that D is more likely than not responsible
 Restatement – N is in the scope of D’s duty to P
 Some jurisdictions
o P must not have contributed to injury through voluntary acts on her own
 Rationale: to link the source of negligence to D, and nobody else
 But we no longer use contributory negligence
 Some jurisdictions – evidence must be more accessible to D than to P
o Most courts think this is a PERSUASIVE not indispensable factor
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o Rationale: If P doesn’t have access to information, why should he be out of luck,
compensation
Ascertain weight of the evidence
 Judge decides whether reasonable jurors could find each element
 Jury decides if each element has been met
o Most jurisdictions then allows jury to infer D’s negligence
o If all elements are satisfied the jury still NEEDS NOT find negligence
 Majority Rule: Permissible Inference
o Usually prevents dismissal of claim – gets to jury
o Form of circumstantial evidence
o D need not produce evidence to avoid losing
o P still has the burden of persuasion
o Directed verdict for P possible ONLY IF no reasonable juror could find for D
 Minority Rule: Rebuttable Presumption
o D has the burden of producing evidence to avoid losing
 Without rebuttal, P has established negligence as a mater of law
 In ALL JURISDICTIONS – res ipsa lightens P’s burden
o No need to offer direct evidence; can recover based on inference
D’s response to Res Ipsa cases:
 Eliminates one necessary element
 Demonstrate that..
o Accident is sort that commonly occurs with out negligence
o D has no control over the instrumentality
o P’s voluntary acts contribute to the harm
If P has evidence of a specific act of negligence…
 Some disagreement
o Majority: P can plead or prove evidence of negligence and still rely on Res Ipsa
 P can use res ipsa if..
 The evidence tends to show specific acts that don’t offer complete
explanation of accident
 And specific facts are consistent with the inference
o Minority: When there is any direct evidence concerning cause of an accident Res Ipsa is
inapplicable
Byrne v. Boadle: P was struck by a barrel falling from a window as he walked past D’s flour shop and
sustained serious personal injuries.
 Court ruled that P does not need to present direct evidence of negligence when the mere manner
and facts of the accident show the incident could not have occurred without negligence.
 Hotel owner can’t be responsible for acts of the patrons
[Hotel Cases]
 You need to not know what the act was but you need to be able identify a specific defendant(s)
 You shouldn’t have specific things about D’s activities.
McDougald v. Perry: P injured when the spare tire on D’s truck falls out of its carrier and collides w/ P’s
windshield. Chain had a loose link that lead to the release of the tire, but D claimed to have inspected it
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

P is not required to eliminate w/ certainty all other possible causes or inferences
Torts law standard: it is more likely than not, preponderance of the evidence
Ybarra v. Spangard: P diagnosed with appendicitis; awakes after surgery with sharp pain between neck
and right shoulder; develops muscle atrophy and paralysis. P sues physicians and nurses and hospital
 Stretch of Res Ipsa: No real legal basis for assuming all Ds are one entity
o Res Ipsa + alternative liability
o We don’t know what the instrumentality was; we don’t know who caused it
o Ybarra only makes sense if the doctors are treated as one unit
 Most jurisdictions reject Ybarra
Special Case of Medical Malpractice
Standard of Care
 Custom sets the standard of care
o There can be different ways to do something
Sheeley v. Memorial Hosptial: P gives birth and receives episiotomy, develops severe complications; P
sought to introduce expert witness testimony, D objected on the ground that expert witness needed to be
in the same field as D; Court found in P’s favor.


What would a reasonable doctor/medical professional do?
o National custom rather than local custom
 Majority: Traditional locality and specialty rules don’t apply since medical training
and certification is now nationalized
 Rationale: Local rule legitimizes low standards of care; national standard
better reflects modern realities of medical profession
 Minority: Local rules still partially define custom
 Rational: Subsidizing doctors in rural localities who might not otherwise
have worked there
Juries role: To decide which expert to believe is articulating the actual standard of care
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Informed Consent
 Goal is personal autonomy
Matthies v. Mastromonaco: P broker her right hip; D prescribes here bed rest rather than surgery. P sues
D claiming that bed rest was inappropriate and she would not have consented if he had told her of the
probable effects of the treatment on her life
 Court found that a doctor must obtain a patient’s consent before implementing a nonsurgical
course of treatment
 Duty: Omission, but there is a special relationship
 Breach:
o Risks
 Slight majority: Reasonable doctor standard (will need expert testimony)
 Rationale: Less burden on the physician, notice, no problems with patient’s
hindsight, Dr. knows what the options are
 Slight minority: Reasonable patient standard
 What would a reasonable patient find material?
 Rationale: Patient- centric; personal autonomy
 NO JURISDICTION has a subjective patient standard
o Medical alternative
 Medically reasonable alternative and viable options
o Exceptions to informed consent
 Emergency
 Waiver
 Informed consent claim DOES NOT need to prove negligence in doing the medical procedure, just
in failing to inform the patient (different from medical malpractice)
 Causation:
o Failure to get the information led to a different decision that they would’ve made
 Majority: Objective reasonable patient
 Rational: Subjective test allows for liars & 20/20 hindsight
 Minority: Subjective standard for that patient
 Rational:
 Damages:
o There has to actually be physical damages
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3) Causation


Must show actual cause and proximate cause
The cause does not have to be the only cause
Cause In Fact

Actual cause
o What happened
o Who did it
But-for Causation
Stacy v. Knickerbocker: P’s horses run onto D’s property, go onto thin ice and drown. P sued D for
negligence alleging that if D had built a fence around the ice as required by statute, the horses wouldn’t
have drowned
 Court ruled there was no but-for causation b/c horses probably would’ve jumped over the 4 foot
fence required by statute.
Lack of Particularistic Evidence
Stubbs v. City of Rochester: P claims that he got typhoid because drinkable water became contaminated
 Court says you need a preponderance of the evidence that D caused harm
 Court let the case go forward
o Some jurisdiction would want more particularistic evidence
Problems with Reasonable Likelihood Standard:
 Over compensation or over deterrence: If 75% chance that D caused harm to 100 Ps
o For each P it is more likely than not that D caused harm
o D will compensate 100 Ps, but only caused harm to 75
 Ps are overcompensated
 D is over-deterred – must pay for more harm than they caused
 Under compensation or under deterrence
o If 25 % chance that D caused harm to 100 Ps
 Than for each P it is more likely than not that D did NOT cause the harm
 D won’t need to compensate anyone
 Ps are undercompensated
 D is under deterred – won’t pay anything for the harm to 25 people
Solution: Alternative Approach of Proportional Recovery (few jurisidcitons)
 D must pay damages proportional to the percentage chance they caused injury
o 75% chance that D caused harm to 100 Ps, 100 Ps recover 75% of damages
 Optimal deterrence
 Some Ps are over compensated; some Ps are undercompensated
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Loss of Chance
 Courts generally limit it to health care context
 Courts are divided on allowing loss of chance damages
Matsuyama v Birnhbaum: Cancer undiagnosed, went to the doctor multiple times but doctor didn’t order
additional test. Eventually diagnosed with gastric cancer but he had lost his chance at survival. Can’t
establish but for causation


D pays P the percentage that P would have not suffered the injury had D treated P with the proper
care
For a group of patients:
o If loss of chance is over 50% P gets full damages
 If loss of chance is 50% or less …
o What would your chance of survival be without negligence?
 Example: 90%
o What is your chance of survival with the negligence?
 Example: 50%
o What is P going to recover?
 Example: 40% of loss of chance
Policy against loss of chance
 Statistics are tricky – population based stats aren’t individualistic
 Disincentive to trick sick patients
Alternative Liability
Summers v. Tice: Two hunters both negligently shot at the plaintiff; all Ds are negligent but we don’t know
who caused the harm
 Courts allow for a rebuttable presumption for causation
Example: Two separate fires come together to destroy a 3rd house. Only one of the fires was started
negligently
 Courts are divided as to whether the negligent actor should be liable
o Plaintiff: D is a substantial factor; innocent P deserves full compensation
o Defendant: Over-burdens D; can’t share the burden with other Ds
Multiple Defendants and Joint and Several Liability
Joint and Several Liability
 Each D is liable for the full amount of P’s damages
 Ds may be sued singly or with the other tortfeasors
o P is only entitled to full damages, no more
 If one D pays, P cannot sue another
 If P gets judgment against D1, but D1 can’t pay P can sue D2
 Only applies when there is a single indivisible injury
Rationale for JSL:
 Guarantees full compensation for wronged P; Single indivisible injury as a result of Ds’ negligence;
Could not apportion responsibility
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Traditional JSL cases
 Concert action
o Multiple Ds ac in concert regarding tortious activity
 Examples: drag racing, planned battery
 Single indivisible injury
o Multiple Ds contribute to single harm (which CANNOT be causally apportioned among
them)
o Can occur concurrently or successively
 Concurrent Example: 2 Ds negligently set separate firs that merge and burn down
P’s house
 No but-for causation
 Basis of recovery: Ds’ negligence was a substantial factor
 Most courts would hold Ds JSL
 Successive Example: D1 negligently causes P to fall in a hole; D2 negligently drops a
stone of Ps head
 Each d contributed to the harm; successively
 Alternative liability
o More than one D is negligent, but only one caused the harm; we don’t know who
 Example: Summers v. Tic
Contribution
 D1 can seek contribution from D2
o Can implead D2 in original suit
o OR can bring separate action against D2
 D1 must show..
 That other torfeasors were liable
 That D1 was held liable
 The D1 paid more than his pro rata share
 Exception: Uniform Act prohibits contribution for intentional torts (3rd restatement
allows it)
Contribution and Insolvency
 Solvent tortfeasors divide full amount amongst themselves
Settlement and Release of Claims
 P can settle with D1 for less than full amount of damages and still go after other tortfeasors
o Rationale: To encourage settlements, they are separate claims
 Uniform act bars D2 from seeking contribution from the settling tortfeasors (some states allow it)
o Rationale: Settlement should end litigation, want to encourage settlement, D1 could settle
for more than pro rata share
o Provides full compensation to P
Several Liability
 Multiple tortfeasors cause harm NOT jointly
o Recovery: P can ONLY sue group of tortfeasors Ds and not individual Ds and cannot
demand full damages from one D but only a portion of the damages from another
o If D1 doesn’t pay his allocated portion, D2 is not effected
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Market Share


Applies to funjable products
Manufacturers are only liable for the % they had in the national market
o Policy rationale for using national market:
 Administrative ease
Hymowitz v. Eli Lilly & Co: Mothers took drugs and later daughters got vaginal cancer; problems of the
long time span between exposure and the harm; drug had over 300 manufacturers
 Pool of defendants is too large for alternative liability to apply; no concert in action; no but-for
causation
 Majority (also a majority amongst courts): Several liability
o Rationale: Optimal Deterrence
o Exculpate No ; Inculpate: Yes
o Encourages P to bring in as many Ds as possible
 Better for D
 Dissent: JSL
o Rationale: Optimal Compensation
 Exculpate; Yes ; Inculpate; yes
o P only needs to go after one D
o Worse for D
Proximate Cause







Legal cause
An attempt to limit liability
o Even if D breached a duty and caused harm to P there are some situations where we will
NOT hold D liable
o Liability within reason of negligence
o Proper allocation of losses
o Liability in proportion to wrongdoing
Typically a jury question; debated how judges should instruct that question
Foreseeable that there will be harm
Foreseeable type of harm
Close in time and space
Intervening causes?
o Are they foreseeable intervening causes?
1. Unexpected Harm
Eggshell Plaintiff (physical)


D takes P as he finds him
o D is liable for the full extent of the harm even though this person happens to be more
vulnerable than the average P
Rationale: P recovers fully, balances out (some people are tougher than others); easy to prove that
an eggshell did have the previous condition
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Benn v. Thomas: D rear ended P’s vehicle. Only injured P’s foot BUT P’s heart problem was aggravated and
he died.
 Court rules that there was proximate cause
Directness & Foreseeability
Minority View: D is liable for all direct consequences
 The only thing that needs to be foreseeable is that there will be harm; it doesn’t matter what type
of harm you foresee
In Re Polemis: Loading a ship full of benzene and a board fell negligently and the boat went up in flames
 D will be liable for all direct consequences
 Minority approach: Foreseeability establishes duty
Scope of the Risk Approach:
 D is responsible only for the type of harm that is foreseeable
Wagonmound: Ds negligently causes oil to spill which does minimal damages to P’s wharf. The oil
subsequently causes a fire when molten metal drops in to the water and ignited cotton waste floating in
the port
 It has to be foreseeable that the type of harm will have occurred
 The burning was not foreseeable; no proximate cause
2. Superseding Causes
Doe v. Manheimer: P raped on property owned by D. Overgrown bushes and tall grass shielded the area
from view in a high crime area; P’s expert claimed that the physical configuration of the specific site
increased the risk of violent crime
 P could not establish proximate cause as a matter of law
 D’s negligence had to have been a substantial factor in causing the rape
 The rape had to be within the scope of the risk of D’s negligence
3rd Restatement: When you have an intentional actor it can cut off liability unless there is a foreseeable
intervening cause
o It isn’t that the intervening actor is so egregious, it is that it so unforeseeable
3. Unexpected Victim
Palsgraf v. Long Island Railroad Co.: P was standing on platform of D’s railway station. A guard pushed a
passenger onto an already moving train and dislodged a package which contained fireworks, which fell
and exploded, knocking down an elderly woman at the other end of the platform
 Test for proximate cause more lenient than Polemis; BUT Cardoza finds no duty
 Dissent: There is a duty to the world at large BUT the issue is proximate cause
o 7 factor test
 Foreseeability
 Type of harm or risk
 Consequences of harm
 General nature of the harm that actually took place
 Directness
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 Time and space between D’s conduct and harm
 Substantial contributing factor to the harm
 Not too many intervening causes
o Rationale/Policy Considerations: Fairness, blameworthiness, deterrence (can’t deter
unforeseeable consequences), ability of D to bear loss
4) Defenses
The Plaintiff’s Fault
Contributory Negligence
 Rejected by most jurisdictions
 D had burden of proof
 Complete bar to P’s recovery
 Standard of conduct: Reasonable person of ordinary prudence in like circumstance
Policy against: Contrary to goal of compensating injured P’s
Policy in favor:
 Avoids necessity of apportioning damages for a single indivisible injury among multiple causes
 Avoids comparison of incommensurables
 Consistent with individualism of common law
Attempts to limit its harshness:
 Last clear chance doctrine:
o Allows P whose negligence placed him in a position from which he is powerless to extricate
himself to recover for his injuries when:
 D discovered the danger
 D still had time to avoid the harm
 D fails to exercise reasonable care to do so
Modified Comparative Negligence
 Combines contributory and comparative N
o In some cases P gets reduced damages; in some cases P is barred from recovery
 Complications when more than one D is involved
o Some jurisdictions compare P’s fault with fault of each D
o Others compare P’s fault with aggregate fault of D’s
 Most states use this approach
 P has a better chance of having less fault than the aggregate of Ds
Two approaches
 Not-as-great-as
o P may recover reduced damages if P’s fault is < D’s
 Not-greater-than
o P may recover reduced damages if P’s fault is ≤ D’s
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Pure Comparative Negligence *** USE THIS FOR ESSAY ***
Most judicially adopted comparative negligence systems
Uniform Comparative Fault Act


P recovery reduced in proportion to fault; regardless of whether P is more or less negligent than D
Sometimes causation is considered
o Uniform Comparative Fault Act, directs attention to
 The nature of the conduct of each party at fault and
 The extent of the causal relationship between the conduct and the damages claimed
Multiple Defendants



Three approaches
o 1) P’s negligence can only be compared with the defendants before the court
o 2) The jury considers the relative fault of all actors, whether before the court or not
o 3) Absent actors must be named as parties if they want the absentee’s conduct considered
Most jurisdictions retain joint and several liability among multiple Ds
o Traditional rule: contribution on a pro rata basis
o Modern rule: Some use the traditional way; but some apportion based on respective fault
Some hold D’s severally liable
o Amount for which D is liable depends on jurisdiction
 Pro rata or degree of fault
When D’s fault is reckless or intentional:
 UCFA excludes intentional torts
 New Restatement allows apportionment to intentional tortfeasors
When P is negligent and D is reckless
 Traditionally: Contributory negligence didn’t apply (claim wasn’t barred)
 Most states with pure comparative negligence compare conduct
o Comparative negligence makes Ps worse off than old rule
When P is reckless and D is negligence
 Traditional contributory negligence rules barred recovery
 Modified comparative negligence states, P loses
o P’s fault is effectively greater than D’s
 In pure comparative negligence state, P gets reduced damages
When P’s conduct is criminal varies
 Some jurisdictions prohibit any recovery
 Others allow reduced damages
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Assumption of Risk
 Traditionally barred recovery

Knowingly and voluntarily accepted the risk
Express Agreements
Hanks v. Power Ridge Restaurant: P injured while snow-tubing at D’s facility. P signed an agreement
before snow-tubing which released D of any negligence
 Court found in favor of P
 Court examines the Tunkle factors
o Suitable for public regulation
o Activity of great importance or essential
o Open to public
o Unequal bargaining power
o Standard adhesion of contract
o Under D’s control
 Minority approach: most courts will uphold recreational waivers
o Most jurisdictions will not uphold waivers for anything that is worse than negligence
(recklessness, gross negligence, intentional torts)
Implied Assumption of Risk
 Subjective test – did P know the risks and voluntarily assume the risk?
Primary Assumption of Risk
 Risk is inherent in the activity
o Rationale: We want to encourage participation, too much litigation, too burdensome, hard
to assess
o Example: Sports
 Requirements for implied assumption of risk defense
o Aware of the danger
o Accept and voluntarily engaged with the risk
Murphy v. Amusement Park: P injured on D’s amusement park ride. P sued Defendant for negligence.
 Cardoza says that the hazard is foreseen and invited
Secondary Assumption of Risk
 Risk is caused by D’s negligence
 Requirements for implied assumption of risk defense
o P voluntarily and knowingly assumed the risk
o P was unreasonable
Davenport v. Cotton Hope Plantation Horizontal Property Regime: A light is out in the middle stairway of
the condo, in spite of repeated complaints. Davenport is walking there one night, in spite of the fact that
he was the complainer. Trips and falls.
 Just because P assumes the risk does not mean that P acted unreasonably
o Assumption of risk is subjective
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o Comparative negligence is objective
[Vicarious Liability ]
Respondeat Superior



An employer is vicariously liable for negligence of an employee while acting in the scope of
employer’s employment
Rationale For: Fairness, employers will be more careful about who they hire, encourages
employers to supervise and hire more responsibly, employers better able to compensate P
Rationale Against: Employer is not at fault ; shouldn’t have to pay
Scope of Employment test
 Elements
o Conduct of the general kind they were hired for
o Time and Space of employment
o Conduct motivated by purpose of serving employer
Christensen v. Swenson: Security guard trip to get lunch within the area served the “see and be seen”
aspect of her job; its important that security guard takes breaks b/c otherwise, she wont be able to
concentrate on her job.
Hospital Employees and Independent Contractors
Roessler v. Novak: P evaluated by a surgeon Hospital. Surgery complications, P hospitalized for 2 ½
months. D alleged that Doctor, the radiologist, misinterpreted the scans taken in the radiology
department.
Apparent Authority Test
 Respondeat Superior for Independent Contractor if…
o Representation of purported principle (represented as a hospital agent)
o Reliance by P
o Change in position by P due to the reliance
Non-delegable duty: When P has no other reasonable option, hospital cannot delegate the duty of care to
independent contractors
26
[Intentional Torts]
Intent Principle



Actual intent
Legal or constructive intent
o Knowing with substantial certainty (technically a subjective test)
o Only relevant when there is no actual intent
Must act with the purpose of producing the consequences, or those consequences are substantially
likely
Assault and Battery
Elements of battery
 Intentional infliction of
 Harmful (or offensive) bodily conduct upon another
o Can be with an object
o Some jurisdictions: un-consented
 Has the lack of consent been made clear
 Causation
Goals: Protecting personal security, dignity, personal space/ boundaries
Garratt v. Daily: 5 year old D pulls chair out from under P when she was about to sit, she falls and breaks
her hip
Transferred Intent
 Intent to cause apprehension that in fact causes bodily conduct
o Transfer from assault to battery
 Intent can be transferred between parties
o Rationale: Goal is to deter bad behavior
 Can do it in assault, battery, and false imprisonment
Wishnatsky v. Huey: D was an assistant attorney general having a conversation; without prior information
or knocking, P enters office. D pushes the door shut and pushes P back into the hall. P sues of offensive
contact
 Eggshells are not allowed to recover
o Fraud, no notice, deterrence, no intent
 What about known eggshells?
o There is notice and intent
 Majority: Retain objective test; no liability
 Minority: Treat known eggshells differently
 Not when touching is incidental
27
Elements for Assault
 Reasonable apprehension
o Both a subjective and objective test
 It has to be reasonable
 And you have to have actually felt the apprehension
o Conditional threat are recognized as assault
o Future threats are NOT recognized as assault
o Majority: Mere words may be enough in the right context
 Imminent Harm
o Eggshells are not allowed to recover
 Fraud, no notice, deterrence, no intent
o What about known eggshells?
 There is notice and intent
 Majority: Retain objective test; no liability
 Minority: Treat known eggshells differently
 Causation
Picard v. Dailey: P took picture of D (for the news) and D lunged at her, finger pointed, and spun her
around which hurt her back
 Assault before the contact happened; batter after
False Imprisonment
Elements of False Imprisonment
 Unlawful restraint (anyone of these is enough)
o Actual physical barrier
o Apparent physical barrier (words and gestures could be enough)
o Threat of physical harm
o Acting under apparent authority (pretending you are police)
o Taking your stuff so you can’t leave… (like a purse)
o Overpowering physical force
o Duress
 Intent (legal or actual)
 Causation
o But for AND proximate cause
 P is aware or harmed by the confinement
Lopez v. Winchell’s Donut House: P worked for D, brought into a room, door closed and locked from inside,
P accused of stealing; D made no threats; P feared for her safety; got up and left the room when she began
to feel ill; brought action for false imprisonment
 Court ruled for D
 Threat of losing job doesn’t count
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Intentional Infliction of Emotional Distress
Elements
 Intentional or reckless conduct
o Knew or should have known that emotional distress likely would result; foreseeable
 Outrageous or intolerable (members of the community would say “outrageous!”)
o One time name calling is not enough
o Repetition helps
o No recovery for unknown eggshells
o Seems more outrageous for known eggshells
 Causation
o But-for and proximate cause
 Severe emotional distress
o Some jurisdictions require physical symptoms
Womack v. Eldridge: D pretended to be a newspaper employee took P’s photo under false pretenses, he is
involved in a child molestation prosecution case that he has nothing to do with him
Defenses and Privileges

Most jurisdictions don’t care if it is a child; they just have to know with substantial certainty
Consent
 Must be capacity to use as an affirmative defense
o NO duress, fraud, or misunderstanding
 Children can give their consent to certain things
Hart v. Geysel: P was killed in an illegal prize fight against D. No anger or any malicious intent to injure
and they both consented to the fight. P sues D for wrongful death
Anger fights
 Majority: Consent is NOT a defense they both have the intent to harm the other
o Rationale: Deterring D from throwing punches
 Implied assumption of risk – you are consenting to negligence NOT to intentional
torts
 Minority: Consent = defense
o Rationale: Deter plaintiff; autonomy argument
Prize fight – it is ALWAYS a defense
29
Self-Defense
Elements
 Reasonable belief
o Under the circumstances known to D
o Honest belief
o Subjective/objective
 Belief has to be reasonable (objective)
 You must actually have that belief (subjective)
o Rationale: no time to make sure you are right
 Reasonable means
o Proportionality: the least force necessary or like force
 Anything excessive are damages (but will be reduced)
 Imminent
o No time to talk to police
Limits
 Retaliation not permitted
 3rd Person defense (reasonable belief) IF mistaken reasonable belief…
o Majority: Same as if you defend yourself
o Minority: Only if the 3rd person had the privilege
 Duty to retreat – never in your own home; NEVER for non-deadly force
 Duty to retreat for deadly force
o Majority: No duty to retreat (personal autonomy)
o Minority: Duty to retreat (Restatement: only when you can safely and reasonably)
 Rationale: Decreased violence
Courvoisier v. Raymond: D jewelry store owner who lived on 2nd floor of store; intruders tried to enter his
store and D chased them outside; intruders threw sticks and rocks; as P (police officer) approached D
shot, believed he was threatening and a rioter,
 Intended to cause unwanted contact but is not liable because of the legal justification
 Jury should have been instructed whether he had a reasonable belief
Defense of Property
Elements
 Reasonable belief that force is necessary
o Telling them to leave is a starting point
 Reasonable means of force
o Least force necessary
 (VERY) Rarely allowed to kill in defense of property
o General rule: you can meet deadly force with deadly force
Barbed wire v. Spring gun
 Apparent AND notice; NOT deadly
Katko v. Briney: P files an action for damages from spring shotgun set up by D in a bedroom of their
abandoned farmhouse that P had been looting
30
 Warning is important to figure out intent, no warning in this case
Necessity
 Reasonable belief,
 Reasonable means
o Risk averted must be greater than the risk imposed by D
o Imminent harm
 Necessity Defense as used by a trespasser
o Expelling D from Prop is not privileged when D is there out of necessity. If LL feels its
unsafe, then LL has privilege to expel.
o Doesn’t excuse tort of destroying Landowner’s property
 Trespassor still has debt to LL if Trespassor destroy LL’s prop
o Intruder has duty to let LL know why his trespass is privileged.
 Otherwise, it is presumed that intrusion isn’t privileged and LL has right to expel
intruder from LL’s prop
Vincent v. Lake Erie Transportation Co.: D keeps boat at P’s dock and storm hits and D cant leave dock.
This eventually ruins the dock. Though D is not condemned for his act, D still should repay P for using P’s
prop and destroying it.
 Court compared D to starving man on ship who eats Ps food to save his life but after, must still pay
P back
 Rationale: incentives the least amount of harm
Private necessity to protect yourself- incomplete defense
 NOT liable for trespass
 Liable for damages
Private necessity to protect owner’s interest – complete defense
Public necessity – complete defense
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[Strict Liability]
Special cases of strict liability
 Trespassory invasion of land
 Wild animals
o Ask if it is abnormal to the community
 Most jurisdictions would not find strict liability for circuses and zoos, but would find
strict liability for lone tiger keeper
 Abnormally dangerous animals
o Domestic animal with a known propensity to be vicious
 Ultra hazardous/ abnormally dangerous
Ultra-Hazardous Activities
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If B > PL we look at whose activities we want to change; if it is the defendant than we hold them
strictly liable
Rylands v. Fletcher: D introduced a large body of water onto his land that escaped unexpectedly and
injured his neighbor’s property. D had not been negligent .
 One who brings onto his land anything likely to do mischief if it escapes, must keep it in at his peril
and if he doesn’t his prima facie responsible for all the damages which is the natural consequence
of its escape
Sullivan v. Dunham: Some guys are blasting a tree. A piece of wood flies onto a highway and kills the
plaintiff's decedent. The blasters were non-negligent
 Strict liability
Indiana Harbor Belt RR Co.: D manufactured a dangerous chemical, which was spilled during
transportation. P, Indiana Harbor Belt R.R. Co. , sues D claiming that the transportation of the chemical
was an abnormally dangerous activity.
 No Strict Liability
Modern Rule: An actor who carries on an abnormally dangerous activity is subject to strict liability for
physical harm resulting from the activity
 6 factor test
o High degree of risk (high probability of harm)
o Great harm
o Inability to reduce risk with due care
o Not common
o Inappropriate location
o Dangers outweigh benefits
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Theoretical Perspectives
Economic Theories
Loss Spreading: Spreading the loss among members in the community
 Rationale: D is in best position to pass over the costs to general public; better for everyone to pay a
little than for P to pay the full price (ruinous liability)
 Alternatives: Insurance
Loss of Avoidance: Risk reduction, reduces the number of accidents and the costs of prevention
 Rationale: Deters risk creating behavior
 Which party can most cheaply deter accidents
o Who can foresee the risk?
o Who has the knowledge and ability to reduce the risk?
 Goal for abnormally dangerous activities
o Change activity levels – you can’t make it safer, but you can do less of it/ switch to a related
activity
 Alternatives: General deterrence (taxes); specific deterrence (criminalize)
Loss Allocation: Internalization; Make the manufacturer experience the pain of the accident costs
 Rationale: Create optimal behavior; target the party that is in the position to decrease the risk and
who can most cheaply avoid the risk
Administrative Efficiency: The cost of assigning who is going to bear the loss and how
Moral Theories
 Non- reciprocity
 Causation
Products Liability
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Questions to ask
o How are P and D connected?
o How is the product defective?
o Where in the chain of distribution do the parties lie?
***DISCUSS CAUSATION***
On the Exam for products DO NOT do negligent OR implied warranty analysis
Possible Defendants
 Retailers
o Rationale: Spread loss, deterrence
 Manufacturers
 Suppliers
o Majority (Restatement 3rd): If the supplier offers a defective good or plays a strong roll in
putting all the pieces together then they could be held strictly liable
 Deterrence
o Minority (Restatement 2nd): No strict liability
 Not in control of the product downstream
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Possible Plaintiffs
 Users/ consumers
 Passengers
o Foreseeable victims; can’t avoid the loss and can’t spread the loss
 Bystander
o Can’t inspect at all; can’t change activity no benefit at all
Emergence of Doctrine
MacPherson v. Buick Motor Co.: Wooden wheel crumbles while P was driving fast; he is seriously injured
 Old Rule: Privity of contract – manufacturer would only owe the duty to the retailer
 Court expands the categories of duty; eliminates privity of contract rule
o Ps are not in the best position to test and inspect the product
Escola v. Coca Cola Bottling Co. of Fresno: A bottle of Coke manufactured by D exploded in P’s hand.
 Court says that manufacturer is the best cost-avoider and can spread the loss
 Strict liability when
o The product is in the market and is meant to be used without inspection
 Role of contract in strict liability
o Express warranty: disclaimers, promises about the quality of the goods up to a certain
point
o Implied warranty: expectation that the consumer has implied by the acts of the
manufacturer
 Rationale: As products get more complicated the manufacturer has more knowledge
compared to the consumer; consumer relies on the manufacturers reputation
Manufacturing Defects
 One of the products is defective, not like the others
o 2nd Restatement: A product that is unreasonably dangerous beyond that which is inspected
by the consumer
 Causation
 Harm
Design Defects
 An entire line of products is defective (and were supposed to be that way)
 Restatement Test: Unreasonably dangerous design
o Cronin Court: Unreasonable is an unnecessary qualifying word
Soule v. General Motors Corporation: P’s car collided with another vehicle. The left front wheel broke free,
collapsed rearward and smashed and floorboard and her feet
Camacho v. Honda Motor Co. Ltd: Camacho bought a new Honda Hawk motorcycle. It didn't have leg bars,
although some other bikes did. Then he had a smash-up and his legs were injured.
Consumer Expectations Test: A product is unreasonable dangerous if it is dangerous to an extent beyond
that which would be contemplated by the ordinary consumer who purchases it, w/ the ordinary
knowledge common to the community as to its characteristics.
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Policy reasons for: Some products may be unreasonable dangerous and can’t be designed to be
safer; comes from implied warranty
More useful in cases dealing with simple non-technical products
Feels more like strict liability
Risk Utility Test: Balances risks and utility/benefits of product design
 Does the product’s design represents a fair balance between
o The cost of designing the product to prevent the risk of injury
o The effect the redesign would have on the utility of the product
o The extent of the risk that the product poses
 Useful in complex product cases
 Ortho Factors *** USE FOR EXAM ***
o Utility
o Likelihood of harm
o Availability of alternative/substitute
o Ability to eliminate unsafe characteristics with out losing utility or prohibitively increasing
cost
o User’s ability to avoid the harm
o User’s anticipated awareness of inherent danger (common knowledge, warnings)
o Feasibility of spreading the loss
3rd Restatement: Requires there to be a reasonable alternative design to hold D liable except…
o Product is irreducibly unsafe AND has utility
o ***Don’t use on Exam*** Use Ortho Factors ***
Some courts allow BOTH tests to be sued
 Best for P
P prefers Consumer Expectation Test when…
 The defect is non-technical
 The defect is hidden
o If it is open and obvious they are going to lose
 Because P does not have to hire expert witnesses to testify about alternative designs of the
products
 P ONLY needs to prove that the product was less safe than the reasonable consumer would expect
P prefers Risk Utility Test when…
 Defect is technical
o Hard to have expectation about complicated products
 Defect is apparent
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Warning Defects
 Two kinds of warnings
o Warnings used to make the product safer
o Warnings that notify to the inherent risk of the products
 Rationale: P can avoid the risk best by reading warning and thereby taking the necessary
precautions in using the product. This would be less costly than redesigning the entire product to
eliminate the risk.
Questions
 Do we need a warning?
 Is the warning adequate
 Causation – would the injury not have occurred with the warning
Hood v. Ryobi American Corp: Despite warnings from the manufacturer, P removed a guard on a miter
saw. The blade flew off and Plaintiff was injured. e read the warnings, but he thought that the warnings
were just there to protect his clothing and to prevent him from getting his fingers in the way, but the
blade ended up coming off
Vassallo v. Baxter Healthcare: P underwent breast implantation surgery in 1977. In 1992, it was
discovered that the silicone had leaked or ruptured.
 In deterring if D had duty to warn its consumers, D was held to standard of knowledge of expert in
appropriate field
Need to warn: When does D have to warn its consumers of a risk?
 Majority Approach: Needs to warn of risks reasonably knowable at time of selling product.
 Minority Approach: Needs to warn under implied warranty
o Presumes Manufacturer is fully informed of all risks of product at time of lawsuit.
 Hindsight Approach
o Rationale: Administrative ease, loss spreading, incentives to do research
o Rationale against: Disincentive for trying new things; asking to invest in an inefficient way
 Generally no duty to recall
Factors for adequate warning
 How easily is it seen
o Font, placement, color, contrast
 Language/ diagram/ symbols /pictures
 Intensity/ Comprehensibility –
o The characteristics of the users – could those users understand
 Content
o Consequences of violating it
o Type of harm/ severity/ probability
o Precautions
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Defenses
Assumption of Risk
 Disclaimers generally DO NOT bar recovery
 Express assumption of risk (courts divided)
o Majority: Signing the paper that P is aware eliminates D’s duty to P
 Secondary Assumption of Risk: Knew of risks involved and decided to use it anyway (no paper)
o Comparative fault (some jurisdictions)
o Complete bar to recovery (other jurisdictions)
o If obvious, it may not be a defect (consumer expectation)
Comparative Negligence
 Fault is a partial defense against strict liability and serves to reduce damages by % of P’s fault
o Rationale for: Increase incentive for P to act reasonably; they are risk avoiders too
o Rationale against: Incommensurable (how can D’s SL be compared to P’s negligence);
lessens incentives for D to do it right
 No duty to discover the defect
 P has the duty to use the product reasonably
General Motors Corp. v. Sanchez: put car in neutral thinking he put car in park and got out of car. Car
moved and crushed P against gate, killing him. D argued that P was N in thinking he put car on break and
not in park and therefore, D is not complete liable.
o Court ruled that P’s negligence reduced P’s recovery by 50%
No duty to discover the defect
3rd restatement: You have a duty to discover the defect if they can reasonably discover the defect (open
and obvious)
 Damages will be reduced
Misuse
 Manufacturer has to design products with foreseeable misuses in mind
o Foreseeable misuse  defect
 Unforeseeable misuse
o Product likely not considered defective
o May prevent proximate cause
o Damages may be reduced based on comparative negligence
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[Damages]
Compensatory Damages
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Goal is to make P whole or return P to pre-injury condition
o Challenge of commodifying life, limb, etc.
 But P will prefer money to nothing
Single Recovery Rule
o Compensation must be sought in a single trial
o Requires P to prove past and (reasonably probable) future damages
 Could be windfall for either party
Risks of Future Diseases
o P can recover if future disease are “reasonably probable (> 50% chance)
 Pros: Difficulty of proof if P must wait years to sue for risk <50%
 Cons: P could get damages even if disease doesn’t develop; Could deplete D of
money to pay those who do get disease
o Non reasonably probable diseases
 Majority: Two disease rule
o Allows P to sue for second disease when it develops
o Minority: Bar recovery under single recovery rule
Elements of Compensatory Damages
Economic Losses: Tangible losses whose actual dollar amount can be calculated
 Medical Expenses (past and future) – Requires expert medical and actuarial testimony
o Medication
o Therapy (physical, psycho-, rehabilitation, etc.)
o Surgery
o Travel
o Therapeutic and other equipment
 Lost earnings (past and future)
o From time of accident to trial
o Lost future earnings
 Expected duration of injury/disability
 Type of work P would have done without injury
o Difficult when career path is undefined:
o Students, children, homemakers, impending career change
 How long P would have worked if no injury
o Life expectancy, type of work, level of interest, other factors
 Fringe Benefits
o Health insurance, stock options, etc.
 Reduced by earning capacity post-injury
 Property damages
Non-economic losses: Intangible losses for there is no objective or accounting basis
 Highly subjective
 Area where legislatures have tried to cap damages
 Pain and Suffering
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o Physical paint from injury, recovery, and/or disability
Emotional distress
o Anguish, humiliation/embarrassment from disfigurement, fear associated with trauma,
frustrations with disability, fear of recurrence, depression, facing reduced life expectancy,
etc.
Loss of Enjoyment of Life
o Loss of ability to enjoy experiences enjoyed prior to injury
o Measured against pre-accident life expectancy
Effects of Unconsciousness on Non-Economic Loss
o Majority: Denies recovery for pain and suffering
 Rationale: No discomfort or pain if unconscious
o Divided as to whether they may recover for loss of enjoyment of life
o Some jurisdictions: No recovery
 Rationale: Cannot benefit from award of damage
o Other jurisdictions:
 Rationale: Loss of enjoyment is an objective test
Collateral Source Rule
 Majority: None of D’s business if P is compensated from “collateral sources”
o Rationale: D shouldn’t get windfall from P’s attempts to prevent loss; Protects insurer’s
subrogation rights (Because Insurer has compensated P can sue anyone P could sue)
o Concerns: Compensates P for losses they don’t incur; Economically inefficient: draws from
most expensive insurance and adds costs of subrogation suits (P’s first party insurance
usually cheaper than D’s liability insurance)
Wrongful Death and Survival Actions
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Prohibited under common law under theory that death was not an injury
Statutorily based reversal: Allows actions based on injuries that cause death
Wrongful death Actions
 Actions on behalf of survivors (usually close relatives) for losses due to death of decedent
 Statutes determine which survivors can recover and for which damages
o Damages are based on actual losses each survivor proves at trial
Economic/ Pecuniary Losses (traditional)
 Lost financial contributions from decedent (sometimes minus living expenses)
 Lost household services
Non-economic losses (modern)
 Many statutes now include them
 Loss of consortium/companionship
o Advice, moral training, education, sexual consortium, emotional support
 Emotional distress
Survival Actions
 Actions for personal injuries of decedent that decedent could have brought if still alive
 Recovery usually goes to decedent’s estate and passes to heirs
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Will be reduced if decedent was comparatively negligent OR if beneficiary was comparatively
negligent
Economic and non-economic losses prior to death
 Medical expenses
 Loss of earnings
 Property damage
 Pain and suffering
Punitive Damages
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Damages over and above compensatory damages
Intended to punish D for wrongdoing
o Limited to egregious wrongdoing
 Spite, malice, fraudulent or evil motive, conscious or deliberate disregard of others’
interests, wanton misconduct
 Motive or conduct that evinces antisocial mental state
o Generally, negligence is not sufficient
Rationale: Compensates for actual expenses of litigation; provides incentive to litigate cases of
outrage and oppression that might escape notice of prosecutors
Concerns: Undue deserts for P; should be paid to the state; Amount is fixed by the caprice of the
jury; Imposed without safeguards of criminal procedure
Nominal Damages
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Apply in some cases where P has not suffered compensable harm through a D’s intentional
wrongdoing
Goal: to recognize D’s wrongdoing NOT to compensate
o Small amount of money
o Rare
o Usually only applies to some intentional torts (offensive contact batteries)
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