Battery: Intentional Infliction of Emotional Distress

If one acts _, a colorable claim for ___ exists.
| A plaintiff can recover for/under __ if __ | In establishing ___, a court considers

[the following factors:] / [whether __]
BATTERY - Coker Standard—threat of bodily harm—or 2) any other person Silence/Inaction may be consent,
violence & present ability to carry present at time suffers bodily harm. depending on what rsnble person would
—acts intending to cause an
out threat think under circumstances. Failure to
unprivileged harmful/offensive contact,
Extreme/outrageous: Goes beyond all object infers consent if manifest consent
or has substantial certainty act will - Hancock Standard—unlawful possible bounds of decency, and to be outwardly, regardless of inward feelings.
cause contact, and such contact directly attempt w/ apparent present ability regarded as atrocious, and utterly O’Brien v. Cunard.
or indirectly results
intolerable I a civilized community;
- A contact is harmful if it injures,
conduct the average person is not, in Cases: Bee Line, Inc. (no rec. for stat.
disfigures, impairs, or causes
pain to any bodily organ or FALSE our friction-filled world, expected to live rape, consent w/minor) Hackbart v.
with. Cincinnati Bengals (no consent to
function IMPRISONMENT Does not apply to: Insults, indignities, conduct outside scope of regular play)
- Unlawfulness of intent function —intending to confine w/in boundaries threats, annoyances, petty oppressions State Farm v. SS & GW (no battery in
of context fixed by actor & results in confinement & —trivialities. sex. context, consented to conduct, D
Depending upon jurisdiction, courts victim is conscious of confinement or - However, some of these may not substantially certain contact will be
may adopt the rule of either single harmed by it harmful—dissent: whether man subst.
become outrageous given
or dual intent. Single intent only cert. intercourse without first disclosing
circumstances such as
requires that the actor intend the - effected by words, acts, or both. would injure her even if she did not
continuousness, relationship
contact, whereas dual intent requires contract herpes, did not consent to
the actor intend the contact and the - totality—restriction to country between P and D, situations in
exposure to herpes )
insufficient which constitutional rights are at
harmful consequence that results Medical Consent
stake(Cohen v. Smith—religious
- force—against P or P’s family beliefs), the mishandling of corpses. —unauthorized and performed without
Employment Contexts. consent = battery.
- threats—threats to use force to Where D is at considerable remove,
- Virtual certainty—clear and prevent escape it’s questionable whether actions o Bang v. Charles T. Miller non-
convincing evidence E deliberately satisfy reckless requirement. emergency where doc can
intended to injure, or engaged in
- barriers actual or apparent—
o Transferred intent inapplicable. ascertain options in advance &
conduct E actually knew, based on - assertion of legal authority— no emergency exists, patient
similar accidents or explicit reasonable belief or doubt does, Rule: A cause of action is established should be informed of
warnings specifically identifying moral influence will not create when it is shown that one, in absence of alternative treatment, given
known danger, was virtually certain colorable claim. any privilege, intentionally subjects opportunity to decide.
to result in injury or death. Whittaker—not necessary to apply another to mental suffering incident to o Kennedy v. Parrott non-
- Two-Prong Laidlow Test—sub. physical force, just constrain P serious threats to his physical well- emergency where P cannot
Rougeau—P must not expressly or being, whether or not the threats are
cert. and whether Inj. result of give consent, no one authorized
impliedly consent. made under such circumstances as to
everyday industrial life (if so, just to give consent, general
Sindle v. NYC—P falsely imprisoned not constitute a technical assault.—State
work. comp.) consent given to remedy
relieved of duty of reasonable care for Rubbish Collectors Association.
Cases: Vosburg (single) Garrett conditions proximate to the
own safety in extricating himself from
(sub.cert.) Fisher (plate) Leichtman original incision which, in doc’s
unlawful detention.
(smoke—changing social standards, cf. professional judgment, should
Coblyn—Restrained of personal liberty
McCracken)
by fear of personal difficulty, it amounts PRIVILEGES be remedied then.
to false imprisonment. If shop-keep has o RS 2d 892D—only in cases of
reasonable grounds for believing P Consent Generally emergency in which D has no
Even if P succeeds in proving elements reason to believe P would
ASSAULT commit/committing larceny, detainment
of prima facie case, D may escape decline.
allowed for reasonable length of time.
—intending to cause harmful/offensive
liability by proving existence of a
contact, or imminent apprehension Self-Defense
privilege to inflict the harmful or
thereof, and does put P in imminent —generally If D uses
offensive contact.
apprehension. INTENTIONAL INFLICTION OF excessive/unreasonable force, D liable
EMOTIONAL DISTRESS Implied-by-law – If necessary to save for damages arising from amount of
- §21(2) without intent, actor not 1) with intent to cause or recklessly life/impor. intrest force excessive.
liable even though unreasonable inflicts 2) severe emotional/mental Implied-in-fact – P acts such that - D must satisfy obj. and subj.
risky act—requires subjective distress (even in the absence of harm) rsnble pers. would believe he consented standards
awareness & reasonable 3) through extreme/outrageous conduct. to invasion of rights. o D must subjectively believe
apprehension Most courts view consent as an facing threat;
where conduct directed at 3rd person,
- Imminence—t, space, prox., actual
actor liable if 1) immediate family
affirmative defense. A few require P to o such belief must be reasonable
—not potential. Extra-sensitive P? shoe lack of consent as part of prima (subj. & obj.)
member present at time regardless of facie case.
no liability unless D knows of
sensitivity.
One may avoid liability for __ if [he can show__] | One can rebut a claim of __ if _.
If one acts _, a colorable claim for ___ exists. | A plaintiff can recover for/under __ if __ | In establishing ___, a court considers
o If D is reasonably mistaken, D - actor has requested other to desist Mallett (WI)(extending to lead paint
avoids liability for reasonable and other has disregarded request, Joint and Several manufacturers.
force. OR actor rsnbly believes request will When two or more persons possibly
—no threat of death/srs bodily harm be useless or that substantial harm (independently or concertedly) caused Doe v. Cutter rejection—Court used
If one rsnbly believes facing present will be done before it can be made. the indivisible harm of P & P introduces statutes limiting joint and several
threat of force not threatening death/srs Katko v. Birney—indiscriminate and evidence that one of two persons is liability to indicate public policy desiring
harm, malicious intent. culpable, the burden shifts to D to a restriction of liability.
- She may use reasonable force even Some states have enacted statutes exonerate himself. Sum.Tice.
allowing homicide in place of business, - ex. A’s car collides with B due to Concurrent and Successive
if she can rsnbly avoid using force
home, or motovehicle. fault of both, passenger in A’s car Causation
by
can hold them jointly and severally If two or more causal agents would—
o retreating home
Necessity liable for harm of P. independent of each other—have caused
o giving up rights
o complying with commands
Private Necessity—One may claim the - At common law, if P sues just one P’s harm
privilege of private necessity when risk of the Ds, D was without legal - Dillon v. Twin State Gas—look at
other has no right to enforce to one person or his property can be recourse against others to compel alternative state of the world,
—force threatening death/srs bodily reduced or eliminated only by them to share burden of liability. apportion damages according to
harm rsnbly believes intended to/likely destroying someone else’s property.
to cause death/srs bodily harm - Thirty states have adopted some differentials.
- §197 Privilege is qualified: D must version of Uniform Contribution Majority Rule D liable for harm caused
- She may use force intending to
pay for any damage. Among Tortfeasors Act, providing a even if concurrent and independently
cause death/srs harm EVEN IF she
Private Necessity—A public official Right to Contribution, Pro Rata sufficient fire originated from natural
can avoid use of force by
using private property for greater good Shares of Fault forces played a role.
 retreating to her home of the public may claim the privilege of Minority Rule (Kingston v. Chicago)—
 permitting other to intrude, or public necessity. When P is unconscious to receive natural/unnat.
 abandoning a lawful arrest - Fork medical treatment & injured by - If other cause was natural, D not
o If can retreat somewhere other o Absolute privilege: No negligence, those in range of actors that liable
damages ned be paid could have caused injury bear the - If manmade, J & S liability
than her dwelling place, she
should retreat to avoid using o Compensation required b/c of burden of disproving their own liability.
such force statutory Ybarra.
mandate/constitutional
Courvoisier v. Raymond. provision Market Share
If P joins manufacturers of a substantial VICARIOUS LIABILITY
Defense of Others Offensive Use—seek damages for
share of the market representing One may be liable for vicariously liable
Traditional, minority view: landowner’s interference w/P’s person or
production, then burden of proof shifts for harm caused by another once
intervener “steps into shoes of person property under circumstances of
to the Ds to prove that they did not causation has been established.
aided” and assumes the risk of mistake. necessity. One cannot refuse the use of
Modern, majority view: intervener’s his property as a haven. Ploof. supply the product to P. If D does not
make such a showing, then each is liable Master-Servant. Consensual
privilege is independent of that held by Defensive Use: to avoid landowner’s
for the proportion of their market share relationship, one performing services on
person to be protected. § 76. claim for intentional
as opposed to the full extent of the behalf of another, and in which master
- May use reasonable force to protect interference/trespass. Vincent. controls or has right to control conduct
inuries. Sindell v. Abbott Laboratories.
3rd party as long as intervener of servant. (e.g., employer-employee,
reasonably believes intervention is - modified (no need to join) The friendship, courts tend to shy away
plaintiff need commence suit
necessary & 3rd party would be
privileged to use self-defense if able
ACTUAL CAUSATION against only one Dand allege that 1)
where religious orgs and non-employee
members involved).
to do so, even though 3rd party may P was exposed to/took product; 2)
not be privileged to defend himself.
General—Whether activity is inherently product caused subsequent injuries;
- Masters liable for torts
capable of causing harm suffered. 3) D produced/marketed type taken committed while acting within the
Specific—Whether activity specifically by P; and D’s conduct constituted a scope of employment, no wage
Defense of Possession by Force not
caused H suff. breach of duty owed to P Collins v. necessary.
Threatening Death or Serious Bodily
But-For—But for D’s conduct, would x Eli Lilly Co. - Early common law courts bar
Harm
have happened?
Privilege not intended or likely to cause - typically reject attempt to intentional torts of servants unless
death/srs bodily harm to - popular sense: D bears some extend DES cases (asbestos, master some way affirmatively
prevent/terminate another’s intrusion if responsibility handguns, lead paint) solicited or encouraged such
- intrusion not privileged contact
Circumstantial evidence admissible to - but see In re Methyl Tertiary Butyl
- reasonable belief that intrusion can
Ether (concentrations of MTBE
- Modern courts reluctant to hold
be prevented/terminated only by show causation. employers liable for intentional torts
use of force conspiracy, oil cos.) and Thomas v.
of servants
ALTERNATIVE LIABILITY
- Some jurisdictions are - and the burden on the defendant of
increasingly willingly to hold taking precautions to reduce or Proof of customary practice, coupled
with a showing that it was ignored and
employers liable for intentional torts
of employees.
NEGLIGENCE eliminate the ham. Carroll Towing
3rd RS—courts regularly consider private that this departure was the proximate
Independent Contractors (IC). interests because general public good is cause of the accident, may serve to
Employer generally not liable for harm DUTY promoted by he protection and establish liability if fact-finder finds the
caused by contractor’s wrongful Generally, ___ owes a duty of reasonable advancement of private interest. custom meets the test of
conduct. care to all foreseeable plaintiffs. - Consideration of fairness and reasonableness. Trimarco v. Klein. (not
nec. universal)
- Exceptions to IC nonliability Are there any exceptions which
efficiency.
o Negligence in selecting, heighten/lower standard duty of care? High degree of gravity of harm/very Consider: perhaps courts should
instructing, or supervising IC intervene when P class does not have
- heightened: small possibility of accident, the product
power to pressure D class to raise
o Duty of employer, arising out of does not outweigh the substantial
some relation to public or o special carrier (extraordinary, cstomary practice and standards, or be
burden or costs of relocating or taking
particular plaintiff, is utmost) “one who engages in non-interventionist when P and D work
precautions against the harm.
nondelegable transportation of persons or together to set standards.
Washington Power.
o Work is specifically, peculiarly, things from place to place for - Policy Argument for Deference:
or inherently dangerous hire, and holds himself out to
Violation of Safety Statute Judicial deference to custom spares
DETERMINGING NATURE/SCOPE the public as ready and willing
the tort system of difficult and error-
RS of Agency Sec. 220 Nature of to serve the public,
Majority Rule: Violations of a safety prone tasks of externally
Business Relationship indifferently, in the particular
state constitutes per se negligence if determining appropriate standard of
- Whether employee is engaged in a line in which he is engaged.”
accident is that which the statute was conduct.
distinct occupation or business  NY exception: general designed to protect against and the o Unwisely ignores invisible hand
- The skill required in the particular standard victim is within the class of persons the of custom.
occupation o licensees, invitees legislature intended to protect when it
- Length of time for which person is - lowered: trespassers, enacted the statute. Medical Practice Majority Rule:
employed
- method of payment (by time or by
o minority state—auto guest - no cause-in-fact Herzog. Professional standard of care is the
legislation standard of care owed.
job?) - impossibility (Bush v. Harvey
- parties’ subjective belief of nature of
If not, then D must act as a reasonably
Transfer Co.) - Modern trend to turn to national
prudent person/corporation similarly standard to determine medical
relationship situated would act under the - violative of custom, common sense, custom at least with respect to
circumstances. and legislative intent (i.e. specialists. Brune v. Belinkoff.
RS of Agency 229 Determining Scope of compliance poses risk of greater
Employment o Willl not necessarily forclose
- Whether causal act is commonly
- Remember that Primary harm) relevance of limited recources
done by servants involved in Assumption of Risk (PAR) is a - “Sudden Emergency” occurs, D in rural-impoverished areas.
particular case deficiency in P’s prima facie case, didn’t create, making it impossible Medical Practice Minority Rule: If
- Previous relations between master not an affirmative defense. You’d to comply test is easily administered and reduces
and servant bring it up here. Minority Rule(s): risk of later harm, then it should be
- Whether master has reason to BREACH - Violation of safety statute gives rise performed. Heller v. Carey.
expect act will be done There are several ways to establish to rebuttable presumption of
- Similarity in quality of act done to act breach, including violations of a safety negligence (VT). Sheehan v. Nims. Res Ipsa Loquitur
authorized statute, failure to follow industry - Merely some evidence of
- Whether act is seriously criminal custom, or by one of the judicially- It may be inferred that the defendant
negligence (Neb). Orduna v. Total has been negligent when the accident
accepted balancing formulae balancing Const. Services.
Frolic and Detour burden, foreseeability and gravity of causing the P’s harm is a type of
- Whether purpose of trip is harm, and utility(See Factor Test Sheet) accident that ordinarily happens
predominantly to serve master’s because of the negligence of a class
Violations of Non-Safety Statute of actors which D is a relevant
purposes To determine whether one acted
- If so, whether servant’s detour unreasonably, a court may balance member. Byrne v. Boadle.
Majority Rule: Breach or neglect of
deviated to a significant degree - the foreseeable likelihood of harm duty imposed by statute or ordinance
- misapplication: P lost all feeling
from the route strictly necessary to from navel-to-knees after injection.
serve that purpose - the likely gravity of the harm may be evidence of negligence only if
Consequence was “unusual” but no
there is a logical connection between
- the utility of the defendant’s neglect of stat. duty and alleged evidence that when it did occur it
Joint enterprise actions, was usually produced by
negligence. Brown v. Shyne.
family purpose—vicarious liability on negligence.
auto owners Custom
- Sense of justice offended if P were - should realize it involves unrsnble Counter to Rowland v. Christian
to lose because it couldn’t establish risk of harm Artficial Conditions Highly Balancing Approach: Homeowner
exactly why D was negligent. Dangerous to Known Trespassers shouldn’t have to hover guests with
- Situations where mere fact of the - fails to exercise rsnble care to One has breached a duty of care to warnings of possible dangers to be
accident having occurred is protect them. known trespassers if found in condition of home. Opens dor to
Invitee-Licensee Distinction—owner
evidence of negligence.
has affirmative duty to investigate and
- the possessor knows or has reason potential unlimited liability despite
to know of trespassers’ presence in purpose and circumstances motivating P
Requires: D must be in exclusive discover conditions in entering premises of another.
dangerous proximity to condition
control of harm-causing incident and
Licensees and the condition is such - Rowlands upsets stability of
wouldn’t occur without negligence and P
did not contribute. Licensees—people privileged to enter - condition is such that he has reason common law
and remain on land on land by virtue of to believe that the trespasser won’t - Injects a degree of unpredictability
owner’s consent. discover condition or realize the into process
Majority Rule: Permissible inference of
negligence. - e.g., tacitly permits boys to play ball risk. - Delegates social policy decisions to
Minority Rule: Rebuttable on vacant lot or policeofficers fire jury with minimal guidance. Might
presumption of negligence. fighters acting in official capacities Artificial Conditions Hi- Danger’s to subject landowner to unlimited
as licensees. Trpssing Kids liability. Younce v. Ferguson.
Limitations: Shutt v. Kaufman’s— Licensee Liability—possessor One is liable for harm to children
Courts want Ps to use res ipsa to end- trespassing by artificial condition if Middle Ground—Mounsey v. Ellard
- knows or has reason to know of
run evidentiary hurdles.
condition
- Condition’s location is one which (Mass.)
- Retains trespasser category but
- Traditional, Majority Rule: - should realize it involves unrsnble
possessor knows or has reason to
abolishes licensee/invitee
Introduction of evidence of specific know children likely to trespass
risk of harm - Knows/reason to know conition will distinction.
neglect precludes res ipsa.
- Modern, Majority Rule: Presence - should expect licensee won’t involve an unreasonable risk of
Duty to Rescue
discover/realize dngr death or serious bodily harm
of some direct evidence of The fact that the actor realizes or should
negligence should not deprive P of - fails to exercise rsnble care 1) to - Children because of their youth will realize that action on hs part is
res ipsa inference. make condition safe or 2a) to warn not discover condition or realize the necessary for another’s aid or protection
licensees of condition and 2b) risk risk involved in intermeddling w/ it does not o itself impose upon him a duty
Special Relationships Between involved or coming within area made ot take action—if actor has not created
Parties: Invitees, Licensees, and dangerous by it and the harm. RS2d § 314.
Trespassers Trespassers - Utility to possessor maintaining the
Trespassers—person who enters or condition and burden of eliminating Affirmative Duty
Invitees remains upon landin possession of danger are slight compared to risk Pre-existing or special relation—A
Inviteees--There must be inducement another without privilege created by of children involved and duty of care may arise from a special
or encouragement to enter or some possessor’s consent or otherwise. relation which imposes a duty upon the
- Possessor fails to exercise
conduct indicating that the premises are - Duty of possessor toward reasonable care to eliminate danger
actor to control the third person’s
provided and intended for public entry trespasser is to refrain from conduct or (b) a special relation that
or otherwise protect children.
and use, and that the public will not wanton or willful conduct. gives to other right of protection.
merely be tolerated, but is expected and Trespassers Committing Crime—only Tarasoff.
Rowland v. Christian—Cali’s more
desired to come. for intentional injury to trespassers. open-ended balancing approach: - Once a therapist does in fact
- cmt d RS 332 determine, or under applicable
Dispenses with common law distinctions
o public/business visitor invited Highly Dngr’s Art’ficial Cond’s between licensees, invitees, and professional standards reasonably
Constant Trepassers on Limited trespassers, balancing: should have determined, that a
 signs inviting entry Area: Posessor who knows or from facts
- Foreseeability of harm to P patient poses a serious danger of
 mail carriers w/in knowledge should know that violence to others, he bears a duty
 utility meter readers trespassers constantly intrude upon - Degree of certainty P will suffer to exercise reasonable care to
 person who provides services limited area of land is liable for harm by injury protect foreseeable victim of that
for benefit of landowner, even artificial condition IF: - Closeness of connection D’conduct- danger. While discharge of this duty
if person does not enter for - possessor created it or maintains it injury suffered of due care will necessarily vary
any explicit business purpose - to his knowledge likely to cause with facts of each case, in each
Hall v. Cagle (MS) (helped death or serious bodly harm to - Moral blame to D’s conduct instance the adequacy of therapists
move into home) trespassers - Policy of preventing future harm conduct must be measured against
Invitee Liability—liable for physical - has reason to believe that - Burden to P and consequences to the traditional negligence standard
harm caused by condition if and only if trespassers won’t discover it community of imposing duty, of the rendition or reasonable care
availability, cost and prevalence of
- knows or by rsnble care would - possessor failed to exercise rsnble insurance
under circumstances.
discover condition care to warn of condition and risk
o Duty to warn if someone has - RS3d 42. Actor who undertakes to - A negligent D may be liable to one  Some jurisdictions limit
disease and there is a known render services to another that who is injured in effort to rescue follow-on liability to cases of
person with reasonable belief to actor knows or should know reduce another put at risk by D’s intentional tort.
acquire the disease? risk of physical harm to other has negligence, since rescuers are a
duty of reasonable care to other foreseeable class. Solon v. Schuell.
 Intervening or Criminal
 Deterrence from treatment— Acts Generally, an
stigmatization. confidentiality conducting undertaking if: - Fire Fighter’s Rule-bars recovery to intervening intentional or
needed. o Failure to exrcise care to whom professional rescuers injured in the criminal act will generally
services rendered or other’s course of their duties.
 Full disclosure. un/conscious sever liability of original tort-
reliance increases risk of harm o prof. rescers, volunteer depts..,
inhibition feasor, except when 3rd party
beyond that which existed w/o po-po, med. technicians acts are within the reasonably
 Successful treatment. trust undertaking o Reflects judgment that foreseeable harm.
needed. o another is imperiled and professional rescuers have
Established Reliance—Where helpless or unable to protect been compensated ahead of Substantial Factor
voluntary action wouldn’t exist as matter himself time for risks inherent in work [see full outline or don’t discuss]
of law, but an established practice o Discontinued aid or protection  At least one court holds its - ------------------------
causes another to rely upon it, some is subject to duty of reasonable inapplicable to -------------
positive duty must rest upon the care to refrain from putting nongovernmental employees. Special Instances of Nonliability for
voluntary actor. Erie R. Co.v. Stewart. other in worse position than Was THIS harm (the nature and Unforeseeable Consequences
o Pharmacist has no duty to warn existed before actor took circumstances) to the plaintiff
of side effects, but if charge of other. foreseeable? NEGLIGENT INFLICTION OF
pharmacist has provided a -Tubbs v. Argus—imposes a legal Foreseeable Harm—In establishing EMOTIONAL DISTRESS (NIED)
detailed warning, he or she obligation to take positive or foreseeability of the harm, a court may Impact Rule
must take care to make sure affirmative steps to effect rescue of follow the Polemis (eggshell skull) - Plaintiff must suffer a physical
warnings are complete. person who is helpess and in a approach or the Wagon Mound (was the impact in order to recover for non-
- Good Samaritan. Duty to act with situation of peril, when the one extent of harm caused foreseeable) physical injuries
due to care once the Good proceeded against is a master or Nature - Traditional impact rule requires
Samaritan has undertaken rescue invitor or when injury resulted from - Eggshell According to the "eggshell contact
operations. Lacy v. United States. use of an instrumentality under plaintiff" (or "thin-skull") rule, if it is o Liberalized into the zone of
All states enacted statutes control of defendant. foreseeable that an action will cause danger rule
designed to protect rescuers from or precipitate injury, the defendant Zone of Danger Rule
claims arising out of rendering PROXIMATE CAUSE is liable for the full extent of bodily - P must have been in zone of danger
gratuitous assistance in emergency. or phychiatric harm to the herself and must have suffered a
- Some states: applies only to med. ___ must show that it was the negligent defendant, even if the extent is physical manifestation of a fright or
practicioners aspect of ___ conduct that caused his unforeseeable (Polemis, Petition of shock in order to recover for non-
Kinsman Transit Co—barge, dam, contact harms. Waube v.
- Other states: practicionsers, fire harm and that both ___ and the harm
flood). Washington (WI)(mother sees child
fighters, rescue swuad members, were reasonably foreseeable.
and police officers - Extend of Harm Foreseeable A hit from inside her home).
But For: Wrongful Aspect court might cut off liability if the o Rationale: D owes bystanders
- Many states: all who render aid But for Wrongful Quality of D’s type or extent of harm was a duty of care because they are
are protected against liability for Conduct, would P have suffered within area of risk created by
unforeseeable. Wagon Mound.
negligence. Same harm? conduct.
Circumstances
Exceptions to No Duty to Rescue:
- If harm would have nevertheless - Continuing Condition A wrong
- VT—if knows another is exposed resulted, then the act is not the may be the proximate cause of an Dillon Rule MINORITY VIEW
and can help without danger/peril to proximate cause. Ford v. Trident - Three factors to consider
injury when the risks created by the
himself or without interference with Fisheries; Lyons. o Proximity to the accident (but
wrong have not been effectively
important duties owed to others, not necessarily within the zone
neutralized before an injury occurs.
give reasonable assistance to Foreseeability of danger).
Marshall v. Nugent.
exposed person unless assistance or Was harm to THIS plaintiff
care is being provided by others. - Intevening Cause Intervening o Whether the shock resulted
foreseeable?
MN & RH—requires individuals at causes must be within the the range from a direct emotional impact
Foreseeable Plaintiff (Class of
scene to provide reasonable of foreseeable risks created y a on the plaintiff from sensory
Plaintiffs)
assistance ot those who are exposed party’s negligent conduct for that and contemporaneous
- An actor owes a duty of care only to
to or have suffered grave physical party to be held liable for the harm observance of the accident vs.
those who are in the reasonably
harm. caused therby. Lodge v. Arett Sales learning of accident from others
foreseeable zone of danger.
Corporation. after its occurrence;
Rescue Doctrine
o Exception:
o Whether plaintiff and victim - Criteria for determining whether D and as a result P is injured by Private Nuisance
were closely related, vs. an owes P a duty of care are: intruder. RS3d 24. - P has some interest in property
absence of any relationship or o The extent to which transaction - D’s conduct is cause of invasion of
the presence of only a distant was intended to affect P Punitive Damages not generally P’s interest in use and enjoyment of
relationship. o Foreseeability of harm to P subject to apportionment. land
o Degree of certainty that P - and results in significant harm
- Majority View requires that the o Must be intentional and
plaintiff suffer some physical
suffered injury TRESPASS TO LAND
o Closeness of connection unreasonable (balancing of
symptoms as a result of the
conduct-injury AND NUISANCE factors) OR
emotional distress caused by
o Policy of preventing future o unintentional and wrongful
conduct. Thing vs. La Chusa. Intentional Trespass
harm (negligent, reckless, abnormally
o Policy: Provides additional P must have exclusive possession of the
corroboration that plaintiff’s land dangerous)
People’s Express. Recovery available
claim is genuine (Mass.). if Ps part of an identifiable class whom D must intentionally (or with sub. cert.)
o Reign in liability be creating intrude on land Unreasonableness of
the defendant knows or has reason to Intentional/Subt. Cert. Invasion
greater certainty. know are likely to suffer damages from unauthorized
- D is liable without P showing of If gravity of harm outweighs utility of D’s
o Rigid doctrinal limitations Ds conduct.
actual damage (nominal damages conduct
inevitably result in disparate
okay) - Is unreasonable if malicious or
treatment of plaintiffs in same
Unintentional Trespass indecent §829 of could be avoided
position.
o Some courts refuse recovery CONTRIBUTORY D liable for harm caused by an without undue hardship §830 or
where P’s use of land is suitable and
even if distress is genuine NEGLIGENCE unintentional trespass if he
D’s conduct is not
- unintentionally--recklessly,
unless the direct victim of the
accident suffers serious injury Last Clear Chance Rule
negligently—enters onto land or by - Under §829A, if the harm is severe
engaging in extra-hazardous activity and greater than the other should
(Conn.)
enters land. be required to bear without
o Some courts require P prove Express Agreement—if P agrees to
Public Nuisance compensation, D’s conduct is
“serious” or “severe” distress accept risk of harm arising from D’s
D’s action must cause significant unreasonable.
to recover, while others require negligence/reckless conduct P cannot
interference with right common to o Even if utility outweighs gravity
even expert testimony to recover unless agreement is invalid as
general public—public health, safety, of harm, it would appear that
establish existence of distress contrary to public policy.
peace, comfort or convenience; the invasion may be found
(S.C.). Primary Assumption of Risk—D was
D may also be liable if conduct is unreasonable based solely
not negligent, i.e., either owed no duty
o At least one court allows P to or did not breach duty owed.—P cannot
prohibited by statute, ordinance, or upon the magnitude of harm to
recover simply on showing that regulation; OR the conduct is plaintiff and accompanying
recover. Knight v. Jewett.
severe emotional distress was continuous and long-lasting AND actor financial burden.
Secondary Assumption of Risk—D
reasonably foreseeable from knows or has reason to know of - Fact that P acquired/improved land
owes duty of care, breaches duty,
D’s negligent Act. Wages v. significant effect on public right. after nuisance interfering won’t bar
plaintiff continues in the face of known
First Natl. Ins. Co. of America - May even include illegal lottery claim, but is a factor to be
risk. Meistrich folded into comparative
(Mont.) EVEN if conducted in quiet, considered in determining whether
negligence.
unobtrusive manner nuisance is actionable.
PURELY CONSEQUENTIAL ECONOMIC Who Can Recover under Public
Comparative Fault
LOSS Nuisance - Gravity of harm
Pure form—minority rule—Ps recover
- Those suffered harm of kind o extent and character of harm
irrespective of relative share of fault
Barber Lines: One may recover for different from other members of
Modified form—majority rule— involved
financial harm only upon a showing of public
physical injury to the plaintiff or his
establishes a floor of Ds negligence
- To maintain a proceeding to enjoin o social value to type of use of
below which P cannot recover. enjoyment
property. Barber Lines. or abate a public nuisance, one
- Bases of Liability. Some courts must o suitability of use or enjoyment
- Exceptions (pg. 29) refuse reduction in damages to
willful, wanton, or intentional Ds.
- have right to recover damages as invaded to character of locality
set forth above, have authority as a o burden of avoiding harm
J’aire Corp (typically applied in
contractual context). recovery will be - Failure to protect other from public official or public agency to
limited to instances where harm is specific risk of intentional tort is J & represent the state/pol. subd., have -
foreseeable AND is closely connected S liable for share of comp. standing to sue as a representative Utility of Conduct
with D’s conduct, where damages are responsibility assigned to of the general public, as a citizen in - social value to primary purpose of
not wholly speculative and injury is not intentional tort feasor. citizen’s action or class action conduct
part of P’s ordinary business risk. o e.g., hotel operated by D has member.
- suitability to locality
inadequate security devices,
- impracticability of preventing or - Indiana Harbor Belt Co. v. American protection and multiple avenues for frequency and regularity of exposure to
avoiding invasion Cyanimid relief. and proximity with D’s products.
- o SL does not apply to - Sellers off hook when manu. is Two step Causation Analysis: Cause-
Appropriateness for Granting solvent. States have legislated in-fact and whether policies or principles
unintentional acts.
Injunctions sellers off the hook in cases where at the heart of cause dictate further
RS2d 519 – SL
limitation on liability. Union Pump Co.
- nature of interests to be protected Abnormally dangerous activity—liability manufacturer is solvent.
limited to kid of harm, the risk of which
- adequacy to P of injunction and makes activity normally dangerous. Product: tangible personal property Specific causation-
other remedies distributed commercially for use or Used Products—SD. seller of used
- Commonly regarded “dangerous
- Any unreasonable delay by P on consumption. Real property and clothes dryer held strictly liable for fire
activities”
electricity are products when the that started when thermostat failed.
bringing suit o Toxic agricultural chemicals
context of their distribution is sufficiently Crandell v. Larken. Defective repairs or
- Any relative misconduct on part of P - Courts reluctant to classify
analogous to the distribution and use of new component parts replaced by dealer
marketing of products as dangerous
- relative hardship likely to result to D (p.438-9) tangible property. of used goods. NJ. Other courts believe
if injunction is granted - Beautician services strict liability inappropriate in used
o Exception: Saturday Night
products cases in which seller does on
- relative hardship to P if it is denied Specials
introduce defect into product.
- practicability of framing and (marketed/manufactured for RS 3d 2(a). A product is
sole purpose of facilitating defective when, at the time of - RS 3d 8. Imposes liability when
enforcing order of judgment defect results from failure to
crime) sale or distribution, it:
exercise reasonable care or defect
- contains a manufacturing
is from manufacturing defect and
defect
STRICT LIABILITY - is defective in design
seller’s marketing of product would
RS 520 Abnormally Dangerous cause a reasonable person in the
Maintaining Custody of Animals Activities - or is defective because of position of the buyer to expect the
Livestock. Livestock which intrude upon - activity involves high degree of risk inadequate instructions or used product to present no greater
land of another triggers strict liabilty for warnings. risk of defect than if product were
intrusion and for any harm done while
- gravity of harm likely to be great o cmt n. Some courts have new.
on the land. - substantial risk can’t be eliminated adopted a consumer
Comparative causation—Award may
- Strict liability for damage caused by exercise of reasonable care expectations definition for
be reduced in proportion to the amount
by trespass or intrusion not only ot - activity is not a matter of common design and failure to warn
the plaintiff contributed to the harm.
livestock but to all other owned or usage defects involving harm to
Murray v. Fairbanks Morse. If P
possessed animals other than persons or property. In some
- activity is inappropriate to place jurisdictions you can claim all
voluntarily and unreasonably proceeded
dogs/cats where it is carried out to encounter known danger—assumption
Wild Animal. liable if animal likely to three. Other jurisdictions favor
- value of activity to community of risk is a defense. Haglund v. Philip
cause injury if unrestrained and is not SL or UCC.
Morris.
typically domesticated. RS 3d 20—Abnormally Dangerous o Baker two-prong test—
Domestic Animals. Only if owner Activities if: consumer expectations & risk Economic Loss Doctrine
knows of vicious tendencies of animal. - creates a foreseeable and highly utility test. consumer Majority Rule: P is denied recovery in
Private zookeepers. SL applies. significant risk of physical harm expectations only when cases of purely consequential economic
Public zookeepers. Must be negligent. despite reasonable care and; appropriate (consumers have loss caused by disappointment in
- activity is not one of common
- RS2d 23 dispenses with all usage.
an idea how it should perform quality/performance of product itself.
distinctions and applies SL in all foreseeable situations. Damage to other property creates a
according to onwer’s actual or Soule. colorable cause of action in tort. East
(See p. 39 for arguments for and against
constructive knowledge of animal’s River Steamship. (Economic Loss
applying SL)
abnormal dangerous. Doctrine).
- Warranty law remains the
appropriate vehicle to redress
Ultra-Hazardous or Abnormally Prima Facie Case: purchaser’s disappointed
Dangerous Acivities P must show actual and proximate cause expectations.
Rylands Test—introducing that which PRODUCTS LIABILITY —harm to ultimate user and that the
- Privity issue. Limestone Farms, Inc.
defect caused the harm.
in its natural condition was not in or
RS 3d Sec. 1: Imposes J & S liability on Majority Rule In cases of exposure to o But, Santor v. A & M, P could
upon it. product, P must establish exposure was maintain breach of implied
all commercial sellers in the vertical
- Big Lake Oil “natural” = normal or chain of distribution. Adds incentives for substantial factor contributing to harm. warranty claim for defective
ordinary, economic/geographic safety; P should have maximum P must prove with specificity the carpet against manufacturer
considerations. despite lack of privity.
danger, that liability should attach even A manufacturer cannot warn its way out RS 2d 402A cmt. jP must show that the
absent proof of reasonable alternative of a defective design if a reasonable product
Breach of Warranty design. alternative design is available. If - contains an ingredient
- Express warranty cases where - Not trampolines. Jump King. alternative design cannot be reasonably - to which a substantial number of
manufacturer ensures product will Determining reasonableness of implemented, adequate instructions will people are allergic AND ingredient’s
perform safely and not cause alternative normally be sufficient to render a danger not generally known
injuries of sort suffered, P has better o magnitude and probability of product reasonably safe. - OR If known one which consumer
chance at recovery. Baxter v. Ford. the foreseeable risks of harm would reasonably not expect to find
o UCC 2-213 affirmation of o instructions/warnings Manufacturing Defect in the product
fact/promise/sample which accompanying product
becomes basis of bargain o nature/strength consumer __ may recover under products liability if Does not apply to:
creates express warranty. expectations he can show that the product - common allergies
o possibly relative dis/advantages - departed from its intended design - dangerous only when consumed in
Defective (Flawed) Design of product as designed and its excessive quantity over a long
alternative
- despite exercise of all possible care period of time when danger or
RS 3d 2 (b) A product is defectively in prep and marketing of product.
o effects of alternative design on potentiality is generally known and
designed when foreseeable risks of harm o A product may be brought
 esthetics recognized
could be reduced or avoided by adoption under implied warranty of
of a reasonable alternative design, and  product longevity merchantability under UCC. Where warning is given, seller may
the omission renders the product not  maintenance
reasonably assume it will be read and
reasonably safe.  repair Inference of Defect: ordinarily occurs headed, and is not unreasonably
 range of consumer choice— as a result of product defect and not in dangerous or defective.
Troja “Wade test”: Determining proof not necessary for all the particular case, solely the result of
whether Product is Reasonably Safe these factors. causes other than product defect. Allows Where warning is not given, there is
- usefulness and desirability of  effect on coroporate P fair opportunity to recover especially a heeding presumption that the user
product—utility to user and public earnings/unemployment NOT in cases where harm-causing incident is would have read it
as a whole a factor lost or destroyed in accident. - To rebut, D would need to show that
- safety aspects—likelihood that will P’s company or was informed of
cause injury, and probable danger and chose to disregard info.,
seriousness of injury. - Widely used, generally available or P was aware of danger and
. Absent proof of defect, however, Failure to Instruct or Warn continues behavior.
- manufacturer’s ability to eliminate
unsafe character without impairing courts have not imposed liability for
products generally available and RS 3d 2: a product is defective because Open and Obvious Danger RS 388
its usefulness or making it too No duty to warn of a product-connected
expensive to maintain utility. widely used and consumed EVEN if of inadequate instructions or warnings
they pose substantial risks of harm. when the foreseeable risks of harm danger which is obvious, or of which
- user’s ability to avoid danger by o Question of Institutional posed by the product could have been person who claims to be entitled to
exercise of care reduced or avoided by provision of warning knows, should know, or should,
Competency: Legislatures and
- user’s anticipated awareness of administrative agencies better- reasonable instructions or warnings by in using the product, discover. See also
dangers inherent in product and seller or other distributor, or predecessor RS 3d Sec. 2 cmt. j.
suited to consider product’s
their avoidability, because of public desirability. in chain of distribution, and the omission
knowledge of obvious condition, or of the instructions or warnings renders Raw Material/Component Supplier
existence of suitable
- Patent Danger Rule. No liability
the product not reasonably safe. RS 3d 5:
for injuries caused by an open and One engaged in business of
warnings/instructions.
obvious risk created by a product’s - cmt a. Society does not benefit selling/distributing product components
- Feasibility on part of manufacturer design. from products that are excessively is liable for harm cuased by product into
of spreading loss by seting the price safe. From a fairness perspective,
of the product or carrying liability
- Express warranty cases where
requiring individual users and
which component was integrated if
manufacturer ensures product will - component itself defective and
insurance. consumers to bear appropriate causes the harm
perform safely and not cause responsibility for proper product use
injuries of sort suffered, P has better - comp. seller/dist. substantially
Also Baker Test consumer prevents careless users and participates in integration of
chance at recovery. Baxter v. Ford. consumers from being subsidized
expectations and risk-utility component into design of product
o UCC 2-213 affirmation of by more careful users and
fact/promise/sample which AND integration causes product to
Manifestly Unreasonable Products consumers, when the former are be defective AND defect causes the
RS 3d 2(b) cmt e. becomes basis of bargain paid damages out of funds to which
creates express warranty. harm.
The designs of some products are so the latter are forced to contribute
manifestly unreasonable , in that they through higher product prices. Seller Knowledge: For liability system
have low social utility and high degree of to be fair and efficient, risk-benefit tests
must be done in light of knowledge of - States recognizing duty to warn Loss of Impaired Earning Capacity. consequences of injury, such as pain and
risks and avoidance techniques directly. Largely a function of probabilities. suffering.
reasonably available at time of o oral contraceptives MacDonald - Based on P’s economic horizons, not - Excessiveness. Damages for pain
distribution. v. Ortho current earnings. Ruzzi v. Butler and suffering are excessive if they
 substantial risks affiliated Petroleum. shock the conscious. Walters v.
Defenses Against Failure to Instruct with product’s use - Court considers: Hitchcock.
or Warn
Learned Intermediary—see
 feasibility of direct warnings o Percentage by which earning - Requirement of Consciousness.
 limited participation of capacity has been diminished P has to be conscious even if he’s
“prescription drugs” below
physician o expected duration of disability not aware of what’s happening in
Sophisticated User—supplier has no
 communication between and if permanent, life order to recover.
duty to warn of danger when danger is
physician and consumer may expectancy of plaintif o baby can recover b/c conscious
already known to purchaser
Sophisticated Intermediary— be insufficient standing alone  Several jurisdictions now o Some states you can recover
variation of sophisticated user defense to apprise consumers of allow recovery for shortened for conscious pain and suffering
focusing on end user’s employer. danger. life expectancy before death
- Some courts have held product  Prior-tort economic
supplier has no duty to warn opportunity. Grayson v. Emotional Distress Damages related
ultimate user where Irvmar Realty Corp. to inj. allowed.
o user’s employer already has full DAMAGES  Training likely to have had Loss of Enjoyment of Life.
range of knowledge OR received - Requirement of Cognitive
o supplier makes employer COMPENSATORY Awareness. part of pain and
Medical Surveillance and Risk of suffering. McDougald v. Garber.
knowledgeable by providing
Pecuniary Future Harm Caused by Medical o A number of jurisdictions hold
warning and instruction.
Mitigation of damages—P has duty to Condition.
that damages for loss of
 Applicable to act reasonably to minimize any loss that - Courts will allow recovery for
enjoyment is an item for
sophisticated flows from D’s conduct. Cannot recover probable future injuries, but not
recovery separate from that of
user/intermediary, etc. for consequences P could have merely possible future injury.
pain and suffering.
General warning insufficient if reasonably avoided. Williams v. Bright o must be more likely than not
supplier has greater general (>50 percent) PUNITIVE
knowledge of dangers and/or Medical Expenses Gratuitously o Why it’s desirable to disallow Purpose: To punish and deter.
specific knowledge of Provided claims that do not probability - Criticism: risk of over-deterrence:
ineffectiveness of avoidance P cannot recover damages for medical rule discouraging risky but socially
techniques. Gray v. Badger services he did not pay for.
Mining.
 Enforceability—decreases beneficial activities.
- D gets windfall to some extent.
Bulk Supplier—applies because of Might be incentive to others not to
difficulty for juries to award - State farm v. Campbell. Put
based on speculation constitution limits on state tort
difficulty reaching end user; supplier of help if they know it will give D a
material delivered in bulk can discharge windfall.  Administration and damages.
duty to warn end user by warning buyer shaping public policy— Factors to Consider when awarding
of dangerous condition of materials Moral Obligations to Repay creates strain on docket, punitive damg.
- Not an injury for which damages more likely to be awarded to - Degree of reprehensibility of
Prescription Drugs and Other Medical may be awarded. Ps who never develop conduct.
Products disease, exacting societal o actual/potential harm-conduct
Generally. Drug companies owe Collateral Source Rule. D’s cost in form of higher disparity.
patients duties to use reasonable care in requirement to pay is not minimized b/c premiums and product costs.  Ratio of comp. and pun.
testing their products and in warning of insurance or another third party damages.
 Fairness—unjustly imposes
prescribing/treating physicians of covering medical expenses or lost wages costs on D o Few awards exceeding single-
harmful side effects. or other damages. digit ratio will satisfy due
- If timely and adequate warnings  Opportunity of Later
given, company not liable
- Rationale: Tort feasor shouldn’t be Claims—removal of state-of-
process.
allowed to escape pecuniary o Single digit ratio is appropriate
limitations and single-
consequences of wrongful act unless compensatory award
Pharmacies—where pharmacy has controversy doctrines as a bar
merely b/c victim has benefits from isn’t substantial.
information that patient will have enhances access to remedy
3rd party. o Determining reprehensibility—
harmful reaction to a drug, court may
- Collateral source has been physical v. economic harm,
impose an independent duty to warn. Non-Pecuniary
overruled by statute in a lot of tortious conduct evinced an
Non-Pecuniary damages awarded to
states. indifference to/reckless
Modern Trend: Direct Warning from compensate for physical and emotional
disregard of health/safety,
Drug companies financial vuln. of P, intent.

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