Contents

Contents.......................................................................................................................................... 1
Offensive Battery............................................................................................................................3
Transferred Intent.....................................................................................................................3
The Case of Minors.................................................................................................................... 3
§35. False Imprisonment.................................................................................................................6
Intentional Infliction of Emotional Distress......................................................................................8
....................................................................................................................................................... 9
Privileges....................................................................................................................................... 10
CONSENT...................................................................................................................................10
INSURANCE................................................................................................................................12
SELF-DEFENSE........................................................................................................................... 13
Actual Causation...........................................................................................................................16
IDENTIFYING RESPONSIBLE PARTIES..........................................................................................16
ALTERNATIVE LIABILITY..............................................................................................................16
CONCURRENT AND SUCCESSIVE CAUSATION............................................................................17
VICARIOUS LIABILITY..................................................................................................................18
Negligence: Duty of Care.............................................................................................................21
THE GENERAL STANDARD.............................................................................................................21
B<PL.............................................................................................................................................21
B = burden on the defendant of taking precautions to reduce or eliminate harm........................21
Special Rules Governing Proof of Negligence.............................................................................22
Violations of Safety Statute....................................................................................................22
CUSTOM.................................................................................................................................. 23
RES IPSA LOQUITUR “The Thing Speaks for Itself”..................................................................23
MODIFICATION OF THE GENERAL STANDARD ARISING OUT OF SPECIAL RELATIONSHIPS
BETWEEN PARTIES..................................................................................................................... 25
Responsibility of Possessors of Land for the Safety of Trespassers, Licensees, and Invitees..25
Responsibility of Common Carriers for the Safety of their Passengers..................................27
Responsibility of Operators of Motor Vehicles for Safety of Their Passengers........................27
The Abence of a General Duty to Rescue...................................................................................27
Strict Liability (SL).........................................................................................................................32
Products Liability...........................................................................................................................34
Damages.......................................................................................................................................35

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Offensive Battery

Generally.
- D is liable to the P for battery if:
o D acts
o intending (desires to or has substantial certainty act will §8)
o to cause harmful or offensive contact, unprivileged, to the P and;
o A harmful or offensive contact with the P directly or indirectly results—causation

Defining Elements
- Harmful and Offensive
o Harmful if it injures, disfigures, impairs, or causes pain to any bodily organ or function; and
o Offensive if “offends reasonable sense of personal dignity . . . not to such one unduly
sensitive . . . must be unwarranted by social usages prevalent at the time and place at which
it is inflicted.” §19.
- Contact must be some physical contact with P or something attached to or closely associated with
P. Fisher v. Carrousel.
o Includes objects set in motion or a force (e.g., electricity). Force need not be set in motion as
long as contact results from D’s act Garrett.
- Act – an external manifestation of actor’s will and does not include any of its results.
- Intent – An unlawful intent to bring about a result which will invade the interest in a way that the
law forbids.
o Unlawfulness is a flexible standard—look to context (cf. playground vs. classroom)
o Substantial certainty governs situations where actor does not subjectively desire harmful or
offensive contact.
 must be primary motivation (c.f. manufacturer may have substantial knowledge
someone might get hurt, but it is not their primary motivation.
 Requires particularly identifiable victims. Not used in case linking action to a broad
statistical relationship; must be specific.
• Evaluation of benefit of action in question to society.
- Causation – conduct must directly or indirectly bring about harm

Intent
- FORK (50/50): Simple Intent vs. Dual Intent
o Simple Intent – One must only intend to cause the contact—not the harm—that is unlawful
or unprivileged; requires neither intent to harm nor knowledge-based intent. ("substantial
certainty"). Vosburg v. Putney.
o Dual Intent - One must intend to cause the contact as well as the harmfulness or
offensiveness thereof, or be reasonably certain that such harmful or offensive contact would
occur.

- Eggshell Skull Rule – A plaintiff is liable for the consequences of an unlawful act, even those
unforeseeable. Applies only to battery.

Transferred Intent
- Actor intends to commit battery on one person and inflicts it accidentally on someone else. Intent
transfers from target toward victim. Carnes v. Thompson.

The Case of Minors

- JURISDICTIONAL FORK: Age at which children are capable of forming mental state
required to commit an intentional tort.
o Bailey v. C.S. (TX) four-year-old struck baby-sitter in throat.
o DeLuca v. Bowden (OH) child under 7 incapable of committing an intentional tort.
o McCormick v. Hoddinott (DE) – rebuttable presumption kids under 7 are incapable of
negligence.
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 - Parental Liability.
o FORK in the Law: Common Law vs. State Statutes
 Under common law, parents are not held vicariously liable for their children's torts.
o All 50 states have enacted substitutes imposing some degree of liability on parents
for the torts of their children.
 The specifics vary from state to state.
• Typically require that minor's conduct be willful or malicious before
parent can be held liable.
• Other statutes impose broader liability.
• Louisiana statute imposes parental liability regardless of
whether the parents could have prevented the act of the child and
regardless of whether the child was too young to be capable of
committing a tort.
- Recovery: Homeowner's Insurance. Liability portion of most homeowner's policies excludes
liability for intentional torts.
o So, if the young child is likely to be held liable for intentional tort, homeowner's insurance
won't cover it.
o Covers negligence when parents are liable for their own negligent supervision of child.
- Policy purposes
o Reduce juvenile delinquency
 Response: ignores factors that influence child's behavior.
• In absence of empirical evidence, parental liability should not be the primary
focus in an effort to reduce juvenile delinquency.
• Other factors--peer influence, environment, inborn personality traits--
contribute to delinquency that are arguably beyond parental control.
Employment Contexts: Virtual Certainty
- Statutory worker-compensation systems offer exclusive no-fault remedies and bar tort claims by
employees against employer, limiting remedy to worker’s compensation.
- Virtual Certainty Principle Turner v. PCR
o P must prove by clear and convincing evidence either that
o Employer deliberately intended to injure,
o or engaged in conduct employer actually knew,
o based on similar accidents or explicit warnings
o specifically identifying known danger,
o was virtually certain to result in injury or death.
- Two-Prong Laidlow Test
o Substantial certainty and
o [context] whether injury was result of everyday industrial life [if so, worker’s comp applies]

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§21. Assault
Generally.
o D intends to cause harmful or offensive contact,
o or an imminent apprehension of such contact;
o does put P in such imminent apprehension—causation
- §21(2) Action not done with intent does not make actor liable although act involves an
unreasonable risk of causing it, and therefore, would be negligent or reckless if the risk threatened
bodily harm.

Explanation of Elements
- Act – Must be volitional movement of body. Words alone are generally insufficient except where
surrounding circumstances force P to rely on mere words.
- Intent: Same as Battery – Acts intending to cause a harmful or offensive contact w/person of
other or 3rd person, or an imminent apprehension of such contact
- Apprehension (as opposed to contact)
o Plaintiff must be placed in reasonable apprehension of imminent harmful or offensive
touching and subjectively aware of the threat at the time thereof.
- Causation – P’s must be legally caused by defendant’s act or something D set in motion.

Two Key Issues: Imminent Harm and the Extra-Sensitive Plaintiff

- Harm threatened must be imminent immediate in time, close in space, and actual—not
potential.
- Extra-sensitive P – no liability for making threats that would not satisfy requirements for assault if
made to typical person, unless D knows of P’s extra-sensitivity.

Read v. Coker Standard

- Threat of Violence & Capacity An assault is committed when there is a threat of violence
exhibiting an intention to assault, coupled with a present ability to carry the threat to execution.
o Note: Does not require actual attempt or striking.

Beach v. Hancock Stnadard

- Apparent Ability & Unloaded Gun
o An assault is an unlawful attempt, coupled with an apparent present ability, to place another
in apprehension of imminent harm.

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§35. False Imprisonment

Generally, Actor subject to false imprisonment if

o He acts intending to confine another or third person w/in boundaries fixed by the actor, and
o His act directly or indirectly results in confinement of the other, and
o The other is conscious of the confinement or is harmed by it.
- An act lacking intent does not make actor liable for a merely transitory or otherwise harmless
confinement, although the act involves an unreasonable risk of imposing it and therefore would be
negligent or reckless if the risk threatened bodily harm.

Notes
- No imprisonment if there’s consent.
- May be effected by words alone, acts alone, or both words and acts.
- Unjustified restriction of P’s freedom of movement is not a harmful or offensive contact.
- Confinement must be total.
- P must be aware of confinement, or otherwise suffer some actual harm.
o If P is locked in a room but doesn’t know she’s locked in, it most likely isn’t false
imprisonment
o If P is unconscious but contracts scurvy (harm) then it is false imprisonment.

Elements Discussed
- Intent – Measured by the desire or belief in substantial certainty – Intent to confine is required
o Without intent D is not liable for merely transitory o otherwise harmless confinement.
- Confinement – In addition to the requirements under “Notes,” P must be restricted to a limited
area / without knowledge of reasonable means of escape.
o Does not include confinement to a whole country. Shen v. Leo A. Daly Co.
- Cause of Confinement
o Physical force – exercised against plaintiff or member of P’s family
 Physical force is not necessary if there is a threat of force.
 However, moral influence will not create a colorable claim for false imprisonment.
o Threats of immediate harm – Threats: Defendant threatens to use force if P tries to
escape.
o Actual or apparent physical barriers to escape (includes refusing to release plaintiff
when under duty to do so)
o Assertion of legal authority and submission thereto
 D’s assertion that he has legal authority to confine P. True even if D doesn’t in fact
have legal authority so long as P reasonably believes that D does, or is in doubt
whether D does (ex: citizens arrest – most states pass laws allowing detention if
reasonable cause for a reasonable amount of time, i.e., until an officer arrives)
 Mere moral influence will not create a colorable claim for false imprisonment.

Relevant Cases
- Whittaker v. Stanford D leader of religious sect convinced P sect member to return to US from Syria
aboard sect’s yacht, but upon arrival would not let her disembark.
o Rule: To commit false imprisonment, it is not necessary that tortfeasor actually apply
physical force to the person, but only that P be physically constrained.
- Rougeau v. Firestone – P was asked to wait in his employer’s guardhouse during an investigation.
Sued employer for false imprisonment when it was determined he had nothing to do with suspected
theft.
o Rule: False imprisonment is the intentional confinement of another within boundaries set by
the actor, and P must not consent to this. Outcome: No imprisonment because P was never
restrained; never revealed to anyone that he didn’t want to stay therefore gave implied
consent.
- Sindle v. New York City – P 14-yr-old was injured when he fell under wheels of an Authority school
bus when he attempted to climb out after the bus driver locked doors to prevent vandals from
escaping

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 o Rule: A person falsely imprisoned is not relieved of duty of reasonable care for his own
safety in extricating himself from the unlawful detention.
 Rationale: RS2d §35: Does not make actor liable to other for a merely transitory or
otherwise harmless confinement
 Also, if there is reasonable justification to engage in confinement then look to see
whether the execution of it is reasonable.
- Coblyn v. Kennedy’s – P was detained by an employee of Kennedy’s, Inc. who suspected P of
shoplifting; employee doesn’t identify himself.
o Rule:
 If a man is restrained of his personal liberty by fear of a personal difficulty, it
amounts to false imprisonment
• Note: Man didn’t object but he was scared; felt he had no alternative.
 If a shopkeeper has reasonable grounds to believe a person has committed or is
attempting to commit larceny of goods for sale on the premises he may detain that
person in a reasonable manner for a reasonable length of time.
• Use an objective standard (prudent and cautious man).

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Intentional Infliction of Emotional Distress

Generally. – Prima Facie Case: An Intentional or reckless infliction, by extreme or outrageous conduct, of
severe emotional or mental distress even in the absence of physical harm. §46(1).
o (2) Where such conduct is directed at a third person, the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress . . .
 (a) to an immediate family member present at the time, regardless of bodily harm, or
 (b) any other person who is present at the time if such distress results in bodily harm.

Elements defined
- Extreme and outrageous. Goes beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community; conduct the average person is not, in our
friction-filled world, expected to live with.
o Does not apply to: Insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.
 However, some of those things above may become outrageous given circumstances
such as:
• Continuousness insults day in, day out (Samms v. Eccles, D persistently
annoyed P with indecent proposals)
o NOTE: One slur/insult alone does not necessarily preclude from
being extreme and outrageous. Taylor v. Metzger.
• Type of Plaintiff Elders, youth, pregnant women, generally the “peculiar
vulnerability to mental upset
• Type of defendant: common carriers and innkeepers held to higher standards
of conduct (bus driver insults you)
o NOTE: Types of P and D category underscores importance of the
relationship between the two. Osborne v. Payne (D priest who had
affair with P’s wife liable for IIED since P had nervous breakdown, lost
religion, house, and job)
 In context of common carrier and innkeepers, it is not enough
to find type of D; you also need to find the right type of P, e.g.,
a guest/passanger.
• Situations in which constitutional rights are at stake – See Cohen v. Smith
infra.
• Mishandling of corpses – See Meyer v. Nottger (IA)
o Although note that where D is at considerable remove, it’s
questionable whether the actions satisfy reckless requirement. See
Heitzman v. Thompson, morticians failure to obtain consent to embalm
a body “unprofessional or careless—but not outrageous.”
- Intent. D must intend to cause severe emotional distress. However, reckless conduct also suffices
(i.e. where D disregards a high probability that his act will cause emotional distress), and intent is
inferred where D knows P is particularly sensitive.
o Note: Doctrine of transferred intent is not applicable here.
- Causation. Under traditional view, demonstrable physical injuries were required, but under the
modern approach, distress aone suffices.
- Severe emotional distress. More than a reasonable person expected to indure.

Relevant Case Law

- State Rubbish Collectors Assocociation v. Siliznoff (CA) – D threatened to beat up P, destroy his
truck, or force him out of business unless he joined association and paid dues.
o Rule: A cause of action is established when it is shown that one, in the absence of any
privilege, intentionally subjects another to mental suffering incident to serious threats to his
physical well-being, whether or not the threats are made under such circumstances as to
constitute a technical assault.
- Ford Motor Credit Co. v. Sheehan (FL) – In order to locate debtor, false represented that debtor’s
children had been involved in serious auto accident.

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- Cohen v. Smith (Ill.) P brought action against D hospital when P underwent cesarean section; male
nurse attended; didn’t honor P’s religious beliefs against being seen naked; D didn’t honor beliefs.

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Privileges

Even if plaintiff succeeds in proving elements of a prima facie case, the defendant ma escape liability by
pleading and proving the existence of a privilege to inflict the harmful or offensive contact.
- Two types:
o Consensual, where plaintiff agrees to the defendant’s otherwise tortious act, and;
o Nonconsensual, which shield defendant from liability for otherwise tortious conduct even if
plaintiff objects to the defendant’s conduct.

CONSENT
Generally.
- Most courts treat consent as affirmative defense; a few require plaintiff to show lack of consent as part
of prima facie case.
- Consent it willingness for conduct to occur. It . . . need not be communicated to D (express implied).
§891(1).
- Consent procured by fraud or duress will not shield defendant from liability.
o Types of Implied Consent –
 Implied-by-law - If necessary to save life or other important interest
 Implied-in-fact – person acts such that a reasonable person would believe he
consented to invasion of his rights.
o Different views of Consent a court could employ:
 Consent unless there is a physical struggle
 Consent unless there is a verbal “no”
 Consent unless actions suggest “no”
 No consent unless actions suggest “yes”
 No consent unless there is a verbal “yes”
 No consent ever
- Exceptions to premise if person has capacity to consent and not under duress refuses to submit to
physical contact

Silence or Inaction as Consent

- Silence or inaction may be consent, depending on what a reasonable person would think under the
circumstances.
- Failure to object allows person to infer consent—you’re deemed to consent if you manifest consent
outwardly, regardless of inward feelings. O’Brien v. Cunard (woman receives shot but denies consent).
Consent from nonobjection.
o Note: D bears burden of proving consent by P.

Informed Consent
- Consent must be voluntary and informed. Consent cannot be obtained where there is a mistake of fact
by P, a mistake of law by P, fraud, or duress.
o FORK: Courts split on whether individuals can consent to unlawful acts.
- Note: One must have the mental capacity to consent.

Statutory Rape – Jurisdictional Fork

- Minority Rule. (NY) A female of minority has no civil cause of action against a male with whom she
willingly has intercourse, if she knows the nature and quality of her act. Barton v. Bee Line (Instead of
incapacity to consent being a shield to save, it might be a sword to desecrate).
o Public policy is to prevent promiscuity, but here award might encourage seduction if she ‘knew
nature and quality of her act.’
- Majority Rule. Most courts will allow recovery even if there is consent of a minor.
o Most states consent to a criminal act is totally irrelevant in civil cases; consent doesn’t
constitute privilege, victims still allowed to sue for damages.

Medical Procedures –
- FUNDAMENTAL FORK: Battery or Negligence?
 Treatment Unauthorized and Performed Without Consent.
• Where treatment is unauthorized and performed without consent, the doctor
has committed battery.
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  Failure to Warn of Adverse Side Effects.
• Where doctor fails to explain to the patient risk of side effects of treatment to
which patient has consented, MOST courts determine liability by the law of
negligence.
o Under battery theory, only issue is whether D adequately explained
nature of operation; under negligence, doctor may be able to avoid liability
by proving failure to explain was reasonable.
o Furthermore, under negligence, D can avoid liability proving that even
fi collateral risks had been fully explained, plaintiff would have consented.
Failure to inform did not cause harm.
-
- Non-Emergency Situations Rule: Where doctor can ascertain options in advance of operations and
no emergency exists, a patient should be informed of alternative treatment and given opportunity to
decide.
o Bang v. Charles T. Miller Hospital. (prostate operation and during operation severed P’s
spermatic cords).
 P consented to operation, but question if consent to cut cords goes to jury.
- Duty of Disclosure. Patient should be told both expected outcome of procedure and expected result
if procedure is not performed.
o Duty varies by Risk and Probability.
 Dentist did not owe patient duty to warn of a 1-in-20,000 chance face would suffer
slight loss of sensation as a result of a tooth extraction. Henderson v. Milobsky.
 One to three percent chance of developing intracranial bleeding merits disclosure by
physician, especially in light of possibly fatal consequences of disorder. Martin v. Richards.
 Wisconsin holds doctrine of informed consent may require disclosure of fact that
different physicians may have substantially different success rates with same procedure.
 Other jurisdictions, however, have been reluctant to impose dsuch a duty but have
held that an affirmative misrepresentation of physicain’s credentials may allow a claim
based on doctrine of informed consent.
o Reasonable person standard.
 Standard is to inform any risk that reasonable person would attach weight to in making
decision
 In order for doctor to be liable for failure to disclose patient must show that additional
disclosure would have led to a different decision, not just that it was significant.
o Canterbury v. Spence
 Reasonable doctor standard (
- FORK:
o Non-Emergency Situations Where Consent Cannot Be Obtained (Need Conditions
proximate)
 Implied Consent In absence of proof against partial consent, the implied consent is
presumed.
 Consent during surgery Where patient cannot give consent, and no other person
nearby is authorized to give consent, general consent is given to doctor to remedy
conditions proximate to the original incision which, in doctor’s professional judgment,
should be remedied at time of procedure. Kennedy v. Parrot (punctures ovarian cysts
unauthorized).
• Policy Rationale
o It is unreasonable to hold the physician to the exact operation that his
preliminary examination indicated was necessary. We know that now
complete diagnosis of an internal ailment is not effectuated until after the
patient is under the influence of the anesthetic and the incision has been
made.
o Law should encourage self-reliant surgeons to whom patients may
safely entrust their bodies, and not men who may be tempted to shirk from
duty for fear of a law suit.
 Limitations
• Negligence still applies
• Explicit ‘no’= no implied consent
• If local anesthetic, not general, then no implied consent (can ask)
• If husband outside door, consent implied
 Represents clash between technology/efficiency and autonomy/privacy.

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  Questions to ask: How urgent? How necessary? How foreseeable? What would a
reasonable doctor have done?
 NOT UNIVERSALLY FOLLOWED: SOME STATES INFER CONSENT ONLY IF IT IS
AN EMERGENCY THAT REQUIRES TREATMENT NOT EXPRESSLY AUTHORIZED. SEE
§892 below.
o Restatement (Second) of Torts: Emergency Action Without Consent, §892D
 Conduct that injures another does not make the actor liable to the other, even though
the other has not consented to it if
• (a) emergency makes it necessary or apparently necessary to act before
opportunity to obtain consent from other or someone else empowered
AND
• (b) actor has no reason to believe that the person acted upon would decline.
- Formal Consent Forms. Whether and to what extent courts will lok behind them and review facts of
particular cases to see if the consent given was truly informed and uncoerced.
o Extremes: give form conclusive weight or give agreement no weight, making full-blown inquiry.
o General approach: All courts allow plaintiff to escape K if he can show it’s a product of fraud or
coercion on part of health care provider
o Informed consent doctrines rest on premise that patients lack knowledge of relevant risks and
must be informed before consent is meaningful.
 So, did patitent in fact understand relevant risks and injury?
 Does K spell out in gory detail?
• Usually not; counterproductive from point of patient’s welfare.
o Problem with general provisions—insulates physicians from
consequences of overbearing conduct.
o Instrumentalist perspective.
 Efficiency. Tortfeasors have improperly substituted forceful unilateral takings for
peaceful bilateral agreements. Physicians done just what they should have done—tried to
substitute before-fact contractual agreements for after-fact review under tort law.
- Informed consent--controls in Minnesota
- Klass says:
- If no medical emergency exists, a doctor should inform the patient of the pros and cons of
the procedure and decide in advance.
- HOW DO WE MEASURE THE VALUE OF PATIENT'S AUTONOMY WITH GIVING DOCTORS THE
POWER TO USE THEIR PROFESSIONAL JUDGMENT.

Sports
- Participation in violent activity—general roughness of the came—does not imply consent to all contact
whatsoever.
o Where harm is against rules (and expected contact there is no implied consent. (Hackbart v.
Cincinnati Bengals)
Minors and Consent
- No consent may harm minors (incentive to violate statutes designed to protect. Hudson v. Craft.

INSURANCE

Fist Party Insurance (Insurance for one’s property)

- Features.
o Insured party is first and only party besides the insurer; the insured’s right do not depend on
any other person and the insured deals directly with his or her own insurance company, not
the insurance company for another person.
o Insured is entitled to recover upon proof of loss covered y the policy; it is not necessary to
show fault on part of anyone. Even the insured’s own fault, short of intentional damage to
one’s own property, is irrelevant.

Subrogation (a feature of some but not all first party insurance)

- Insurer “stands in the shoes” of insured and takes insured’s claim against tortfeasor

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SELF-DEFENSE
Self-Defense
- For All Claims of Self Defense
o If D uses excessive or unreasonable force, D is liable for damages arising from the
amount of force that is excessive.
o D must satisfy subjective and objective standards
 D must subjectively believe she is faced with threat of force; and
 Such Belief must be reasonable under the circumstances
 If D is mistaken, but her mistake is reasonable, self-defense is available to
avoid liability if carried out reasonably.
- § 63 No Threat of Death or Serious Bodily Harm
o If a person reasonably believes she is faced with present threat of force NOT
threatening death or serious bodily harm:
 She may use reasonable force NOT intended or likely to cause death or
serious bodily harm
 She may use such reasonable force even if she can reasonably avoid self-
defense by
• retreating,
• giving up rights,
• or complying with commands the other has no right to enforce
- §65 Self-Defense By Force Threatening Harm or Serious Bodily Harm
o If threatened with force she reasonably believes is intended or likely to cause death
or serious bodily harm
 She can respond with force intending to cause death or serious bodily harm
And use that force EVEN IF
 She could avoid the need for defense by
• Retreating to her home
• Permitting other to intrude into home, or
• Abandoning a lawful arrest
 If she can safely retreat to somewhere OTHER than her dwelling place, she
SHOULD retreat to avoid using for intdended to cause death or serious harm
Note: § 71. Self-defender not privileged to use in excess o that which she correctly and
reasonably believes to be necessary for her protection.

- Relevant Case Law

o Courvoisier v. Raymond – D trying to chase out burglar’s w/ gun; accidentally shoots
cop who came to scene, thinking officer was going to attack him.
 Rule: An action of force is justified b self-defense whenever the
circumstances as to a cause a reasonable man to belllieve life is in danger or is in
danger of receiving great bbbodily harm and iiit’s neccceeessary too use it for
his protection.
Defense of Others
- FORK of Reasonable Mistake:
o Traditional View (Minority): The intervenor “steps into shoes of person aided” and
assumes risk of mistake.
o Restatement Modern View (Majority: The intervenor’s privilege is dependent of
that held by person to be protected. §76.
 Intervenor may use reasonable force to protect a third party as long as the
intervenor reasonably believes intervention is necessary and that the third party
would be privileged to use self-defense if able to do so, even if the person to be
protected would not be privileged would not be privileged to defend himself.
• §76 Cmt c: Actor does not take risk that the person for whose
protection he interferes is actually privileged. He may be guided by
appearances which would lead a reasonable man in the actor’s position to
believe that the third person is privileged.

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 - Private Necessity
o Applies where: Risk to only one person or his property that can be reduced or
eliminated by destroying someone else’s property
o Rule: Privilege is qualified in that D may use P’s property/land but must pay for any
damage after the fact.
- Public Necessity
o Applies where: Public official uses private property for the greater good of the
public
 E.g., setting fire to house to avoid spread to entire neighborhood
o Jusidictional FORK:
 Privilege is absolute: No damages need be paid.
 In other jurisdictions, state/city must compensate property owner under state
constitution or b/c of statutory mandate
Defense of Property

- §77. From force NOT threatening Death of Serious Bodily Harm

o Generally, a person may use reasonable force to defend property, both land and
chattels (non-deadly).
 Force cannot be such as will take human life or inflict bodily harm. Katko v.
Briney (shotgun trap in unoccupied home).
 Warning required first: Owner must make demand that intruder stop, unless it
reasonably appears that violence or harm will occur immediately, or that request
to stop will be useless.
 Mechanical devices to protect property only if you would be privileged to use
similar degree of force if you were present and acting yourself.
- §79. From force INDEED threatening Death or Serious Bodily Harm
o Owner may use deadly force only where:
 A person is threatened as well.
 Non-deadly force won’t suffice.


Necessity
- Purpose of defense. Necessity is a defense to claim for trespass or other intentional
interference with property.
- Applies where:
o Circumstances not caused by the P to require the necessity.
- Private Necessity
o Applies where: Risk to only one person or his property that can be reduced or
eliminated by destroying someone else’s property
o Rule §197 (Entry): Privilege is qualified in that D may enter P’s property/land to
avoid serious harm to one’s person, land, or chattels, or to those of a third person but
must pay for any damage after the fact.
 Policy: As between two innocent parties, the one whom nature put at risk
should bear the cost of saving himself, rather than the owner of property that
saves him.
o Rule §263 (Damage): Actor privileged to damage the chattels of another in order to
avoid serious harm to actor’s own person, land, or chattels, or to those of a third person.
- Public Necessity
o Applies where: Public official uses private property for the greater good of the
public
 E.g., setting fire to house to avoid spread to entire neighborhood
o Jusidictional FORK:
 Privilege is absolute: No damages need be paid.
 In other jurisdictions, state/city must compensate property owner under state
constitution or b/c of statutory mandate
- Using it.

14 | P a g e
 o Offensively to seek damages for landowner’s interference w/P’s person or property
under circumstances of necessity. One has privilege to use another’s property to protect
onself and property owner cannot refuse the use of his property as a haven. Private
necessity afforded plaintiffs Ploof v. Putnam (P docked to D’s dock and D’s servant cut
him off, causing damage. Rule:)
o Defensively to avoid the landowner’s claim for intentional interference. Vincent v.
Lake Erie Transportation Co.

Miscellaneous Privileges

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Actual Causation

IDENTIFYING RESPONSIBLE PARTIES

- Cause-in-Fact / But-For Test: “But for” the presence of D, would x have happened? Connection
b/w D’s conduct and resulting injury to P?
o Requires specific and actual causation

General causation: Whether the activity alleged is inherently capable of causing the sort of harm
suffered by P (e.g., can car fumes harm cows?)
- Circumstantial Evidence.
o Circumstantial evidence is admissible to show causation, and it is for the jury to decide how
much force and weight is to be given to such evidence. Hoyt v. Jeffers (Smokestack Case).
 May be enough to prove causation even though there is no direct proof or evidence
 May be stronger than direct evidence when none is available (i.e.., no one witnessed
a particular spark from smokestack hit hotel) or when other factors weaken the direct
evidence (witness was P’s brother).
• There are also times when proving a fact circumstantially rather than directly
may be advantageous—direct evidence is only as strong as the credibility of
the witness.
- Pure statistical probabilities are not enough to show causation.
o Causation cannot be shown by mathematical probabilities in absence of other convincing
evidence. Smith v. Rapid Transit.
 Statistics proffered may be based on the wrong premise or in response to the wrong
question.
o Distinguished from circumstantial evidence in Hoyt because all sparks are bad negligent. But
the high probability of Ds bus being on the road does not link the Ds action to the negligent
act.

Specific Causation: Whether activity alleged specifically caused the harm suffered by P (e.g., did D’s car
fumes harm the cows?)
- Scientific expert testimony.

ALTERNATIVE LIABILITY

Joint and Several Liability

- When two or more persons are possibly the sole cause of a harm.
o Rule: If P introduces evidence that one of two persons is culpable, each D has burden of
showing that the other person was the sole cause of the harm, then the burden shifts to the
defendant in proving that the other possibly liable person was the sole cause of the harm.
Summers v. Tice.
- Where P is unconscious to receive medical treatment and injured by negligence.
o Rule: If range of actors could have caused injury, Ds bear burden of disproving their own
tort liability. Simply because P is unable to identify single culpable actor does not preclude
liability. Ybarra v. Spangard.
o Justification: All of the Ds were involved in a common enterprise (not necessarily tortuous)
and had a duty of care (even though all Ds probabilities of causing harm may not be equal.

Market Share Liability

- Rule: If P joins a substantial share of the market representing production, then the burden of proof
shifts to the Ds to prove they did not supply the product to the P. If D did not make such a showing,
then each is liable for the proportion of their market share as opposed to the full extent of the
injuries. Sindell v. Abbott Laboratories (rejecting Summers’?).
o Benefits:
16 | P a g e
  Underlying theory is that once it is clear that each Ds product injured some of the Ps,
Ds should not escape liability merely because Ps cannot show which D injured which
P.
 Theory is that in the long run each defendant only pays according to market share, it
will all sort itself out
o Problems
 Administration Corrective justice less well served b/c there is not matching up of
each P w/D whose product injured P wrong is corrected, but not necessarily by party
who wronged P
 Enforceability
• Relevant market-share data is not always available, especially when relevant
time period is in distant past
• If there are alternative causes of disease suffered by Ps, market-share is not
accurate surrogate for total amount of disease caused by any given D bc
cause of disease in some people cannot be traced to any of Ds.
• It is not always feasible to sue all possible Ds.
 Unfairness to Ds If Ds can get off, that contradicts theory that liability will be
equally spread; substantial percentage of market is unequal to damages against D
based on how likely to cause harm.
- Doe v. Cutter rejects market share liability
o Court used statutes limiting joint and several liability to indicate the public policy desiring a
restriction of liability (even though Market share liability is different than that of J & S—P
only gets percentage represented, not full).
o Not a fungible product
o Goods here could be traced to specific producer.

CONCURRENT AND SUCCESSIVE CAUSATION

Concurrent and Successive Causation: Two or more causal agents would, independent of each other, have
caused plaintiff’s harm.
 Not always physical
• Employee passed over for a partnership, bringin a Civ. Rts Act suit against
employer, claiming that the reasons for rejecting her were impermissibly
based on gender. Discriminatory and non-discriminatory reasons for
employer’s decision. Supreme Court ruled on appeal that employer could
defend itself from suit if it successfully proved that non-discriminatory means
would have yielded same result. No longer a defense in amended CRA.
- Dillon v. Twin State Gas & Electric Co. (boy electrocuted by wire grabbed as he started to fall off the
bridge)
o Look at alternative state of the world
 If would have survived otherwise, damages would be for harm caused including
death
 If he would have died anyway, damages for pain and suffering caused by shock
 If he would have survived but in maimed state, difference between death – maimed
state
o The evidence of alternative state of the world is only admissible when two causal agents are
part of the same causal event.
- Ask: “But for the defendant’s negligence, what would have happened?”
- Kingston v. Chicago – two fires join 900 feet from property and wipe out property. Look to how
mystery fire started to determine D’s liability.
o Minority Rule make a distinction between concurrent causes of natural and human origin.
 If natural, no liability
• Not responsible for acts of God
 If manmade, then there is still liability
• Joint and several liability
 Part is consistent with Dillon and part is not
• D gets to rely on fortuity that other fire was natural
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 • May be unsatisfactory, but it is the rule.
o Majority Rule D would be liable for harm caused by a fire originating from its locative even
if a concurrent and independently sufficient fire originated from natural forces. Anderson v.
Minneapolis, St. P. & S.S. M. Ry.

VICARIOUS LIABILITY
The extent to which one person may be held liable for harm actually caused by the tortious conduct of
another once causation has been established.

Vicarious Liability applies where:

o Servant’s conduct must be tortious;
o Master must control or have right to control servant’s harmful behavior—but need not be
shown to have been at fault.
 IN employment context, they must be acting within scope of employment. RS of
Agency §219

Masters, Servants, and Independent Contractors—Respondeat Superior “Let the Master Pay”
o Master-servant relationship. A consensual relationship in which one person or legal
entity, the servant, performs services on behalf of another person or legal entity, the
master, and in which the master controls or has right ot control the conduct of the servant.
 Includes: empoyer-employee, service out of a sense of friendship. Courts tend to
shy away from finding vicarious relationship where religious organizations and their
non-employee members are involved.
o Servants vs. Independent Contractor.
 Independent contractor is one who contracts with another person to do something
but who is not controlled by other person nor subject to the other person’s right to
control
 General Rule: Employer not liable for harm caused by contractor’s wrongful
conduct. RS2d Torts §409.

1. Masters, Servants, and Independent Contractors--

a. General Principles
1. Masters are vicariously liable for the torts of servants committed while
acting within scope of employment. See Generally Restatement (Second) of
Agency Sec. 219
2. Servant need not receive a wage; someone can be servant of another even
if performing services out of friendship.
3. The reach of master-seravnt vicariously liability outside employment
contexts is limited.
b. Distinguishing Servants from independent Contractors
1. Independent contracts do not call for the application of the principle of
respondeat superior.
2. Independent contractor is one who contracts with another person to do
something but who is not controlled by the other perosn nor subjectt other
person's right to control.
• See Restatement (Second) of Torts Sec. 409
3. Restatement (Second) of Agency Sec. 220
• Considerations in determining employee/r relationship
i. Whether one employed is engaged in a distinct occupation or
business
ii. the skill required in the particular occupation
iii. length of time for which person is employed
iv. method of payment
v. by the time or by the job
vi. whether or not parties believe they are creating the relation of
master and servant
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 • D.A.R.E. American v. Rolling Stone Mag (2000), writer was an
independent contractor, reasoning mag only had editorial control over the
final draft, Glass provided his own instrumentalities, was not paid regular
salary, etc.
• Throop v. F.E. Young & Co (1963) Salesperson was an independent
contractor, free to choose anywhere he wanted, when he wanted, and
limited contact relationship with employer
c. Relationship between Servant's Conduct and Scope of Employment
1. Courts do not impose vicarious liability unless plaintiff deomnstrates
servant was acting within scope of employment
2. Restatement (Second) of Agency Sec. 229
• Determining scope of employment, look at:
i. Whether act that causes one is commonly done by servants
involved in particular case
ii. Previous relations between master and srevant
iii. Whether master has reason to expect that such an act will be
done
iv. Similarity in quality of act done to the act authorized
v. Whether or not act is seriously criminal
• Richard v. Hall (2004, La.), duck lease used by executives. hunting
was outside scope of employment. no vicarious liability for wrongful death
of an employee during hunting.
• Tortious conduct need not involve physical injuries in vicarious
liability.
i. Orser v. State (Mont. 1978), liability could be imposed on the
state for malicious prosecution by game wardens of alleged violation
of game laws by plaintiff
3. Limits of scope of employment most severely pressed when servant
engages in intentional wrongdoing.
• early common law barred vicarious liability for intentional torts of
servants unless the master in some way affirmatively solicited or
encouraged such contact.
• modern courts are reluctant to hold employers liable for the
intentional torts of their servants.
• Some jurisdictions reflect an infreased willingness to hold employers
vicariously liable for intentional torts of employees.
i. Courts focus on
1. whether misconduct occurred within time and space of
employment
2. whether employee was motivated by concern for
employer's interests
3. whether potential for wrongdoing was foreseeable to
the employer
ii. Courts may also forego the scrutiny and hold defendant liable
for its negligence in hiring, supervising, or monitoring the servant
1. Avitia v. U.S. fed. gob't held liable in negligence where
doctor at fed. funded clinic assaulted patient during exam, clinic
failed to provide a chaperone in accordance with its own policy
• "Frolic and Detour" - describes type of conduct that falls outside
scope of employment.
i. Court will determine whether purpose of trip is predominantly
to serve master's purposes. If so, the court must determine whether
the servant's detour deviated, to a significant degree, from the route
strictly necessary to serve that purpose.
ii. Whether the servant's detour deviated, to a significant degree,
from the route strictly necessary to serve that purpose.
d. Exceptions to the General Rule of Nonliability of Independent Contractors

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 1. the employer is negligent in selecting, instructing, or supervising the
independent contractor;
2. duty of employer, arising out of some relation to the public or to the
particular plaintiff, is nondelegable
3. the work is specifically, peculiarly, or inherently dangerous
1. re: (a), employer is not held liable vicariously, but in its own right for its
own acts of negligence.
• Even though servant may have acted beyond the scope of
employment, the master may be held directly liable for negligence in
"selecting, instructing, supervising, or retaining the employee."
DOESN'T THE EXCEPTION SWALLOW THE RULE?!
2. Re: (b) and (c)
• Invoked with defendants engaged in activities which expose public to
significant risks.
i. Simmons v. Tuomey Reg'l Med. Ctr (S.C. 2000)
3. "Ostensible Agent"
• When acts or omission of employer induce third party to reasonably
believe person is employer's agent, employer is as vicariously liable as
if M-S relationship existed. Independent contractor status is irrelevant
to empl. liability.
2. Other Forms of Vicarious Liability
a. Joint Enterprise
1. Two or more persons will join together in an enterprise win which each has
an equal right to control the other's conduct.
b. Family Purpose Doctrine
1. In many states, a special rule has developed which imposes vicarious
liability upon auto owners for harm caused by persons to whom autos have been
loaned or made available.

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Negligence: Duty of Care

There are several ways to establish breach, including violations of a safety statute (discussed under
negligence per se below), failure to follow industry custom, or by one of the judicially-accepted formulae of
balancing the foreseeable likelihood of harm, gravity of harm, the utility of the defendant’s actions, and
the burden on the defendant of taking precautions to reduce or eliminate the harm. See U.S. v. Carroll
Towing; Restatement (2nd) of Torts § 291; Restatement (3rd) of Torts §§ 3, 292, 293

THE GENERAL STANDARD

U.S. v. Carroll Towing
- Where the burden is less than the probability that harm will occur multiplied by the cost of loss that
will result, the defendant is liable.
B<PL
B = burden on the defendant of taking precautions to reduce or eliminate harm
 P = probability that harm will occur
 L = gravity of harm
- Application
o Look for the cost of additional protections and comparing this with probability and gravity of
harm.
- Difficulties of B<PL
o Incommensurable items
 Even if measurable on own terms, hard to compare to other categories

The Restatements
- §291. RS2d—Unreasonableness: Magnitude of Risk and Utility of Conduct
o If risk is greater than (what the law regards as) the utility of the act or of the particular
manner in which it is done.
- §292. RS2d.—Determining Utility. Factors.
o Social value which the law attaches to the interest which is to be advanced or protected by
the conduct.
o Extent of chance this interest will be advanced.
o Extent of chance that such interest can be advanced/protected by another and less
dangerous course of conduct.
 Alternative safer way?
- §293. RS2d.—Determining Magnitude of Risk.
o Social value of interests imperiled.
o Extent of chance conduct will invade the interests of another.
o Extent of harm likely to be caused to interests.
o Number of persons whose interests are likely to be invaded.
- §3. RS3d.—Negligence.
o Foreseeable likelihood conduct will result in harm
o Severity of any harm that may ensue
o Burden of precautions to eliminate or reduce harm
 Cmt e – risk-benefit test where risk is overall level of foreseeable risk created by
conduct and benefit is the advantages actor or others gain if actor refrains.
 Contrary to RS2d, 3d says courts regularly consider private interests because
general public good is promoted by protection and advancement of private interests.
• That is, the Hand Method encompasses fairness as well as efficiency
values.
 The ultimate question in a negligence case is whether, recognizing the risk, that
person would have acted differently.

Relevant Case Law

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 - Washington v. Louisiana Power and Light Co. (LA). (Decedent electrocuted when antenna
touched uninsulated transmission line—five years earlier Decedent and son burned hands when it
antenna contacted wire. D would only insulate it at decedent’s expense.)
o Gravity of harm high multiplied by small probability of careless moving of an antennae is not
greater than the burden in cost it would be to relocating or insulating power line
 Consideration must be given that the burden of precaution applies not just to this
single case, but all others foreseen by it—meaning, all such slight possibilities of
harm w/r/t to all antennain service area.
- Weirum v. RKO General, Inc.
o “All persons are required to use ordinary care to prevent others from being injured as a
result of their conduct. Foreseeability of the risk is a primary consideration in establishing
element of duty.”

Special Rules Governing Proof of Negligence

Violations of Safety Statute

o Negligence Per Se Presumption—A violation of a statute creates a presumption of
negligence per se against which plaintiff may have rebuttable defense—such as:
 no cause-in-fact—Martin v. Herzog (car drives on other side of road, runs into car
w/lights off—negligent, but lights off not cause-in-fact, therefore, it is not
contributorily negligent).
 or that person harmed did not belong to a class intended to be protected by statute.
 Impossibility Bush v. Harvey Transfer Co. (Ohio)
 Would undermine legislature’s intent Obedience to statute would violate custom
and common sense and undermine the legislature’s intent.
 “Sudden Emergency Exception” Hatala v. Craft (Ohio).
• Emergency occurred
• D didn’t create emergency, and
• impossible to comply.
Violations of non-Safety Statute
o Majority Rule: Logical connection between neglect and violation? Breach or neglect
of duty imposed by statute or ordinance may be evidence of negligence only if there is a
logical connection between the proven neglect of statutory duty and the alleged negligence
 lack of medical license not connected to injury sustained during treatment.
• “Unless the plaintiff’s injury was caused by carelessness or lack of skill, D’s
failure to obtain a license was not connected with the injury.
o Minority Rule(s)
 Sheehan v. Nims (Vermont)
• Violations of safety statute give rise to rebuttable presumption of negligence
which may be overcome by proof of the attendant circumstances if they are
sufficient to persuade a jury that a reasonable and prudent driver would have
acted as defendant did.
 Martin trial court approach
• Allows jury to accept the fact of a violation of statute, regulation, or ordinance
as some evidence of negligence, but not necessarily negligence per se.
 Wiersgalla v. Garrett (IA)
• Violation of an OSHA safety regulation could constitute negligence per se in
an action by an employee against an employer, but it’s evidence of
negligence in suits by other parties likely to be harmed by violations.

Note: The harm caused by violation of safety statute must be within the visions of the risks of the
legislature when it enacted the statute.
Note: The Victim must be within the class of persons the statute is designed to protect.

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CUSTOM

- Proof of Customary Practice

o coupled with a showing that it was ignored and that this departure was a proximate cause of
the accident, , may serve to establish liability if the fact-finder finds the custom meets the
test of reasonableness. In other words, customary practices are still subject to a finding of its
reasonableness. Trimarco v. Klein (NY).
“What usually is done may be evidence of what ought to
be done, but what ought to be done is fixed by a
standard of reasonable prudence, whether it usually is
complied with or not." – Holmes
• Needn’t be universal. Just clearly defined so defendant can be charged with
knowledge or negligent ignorance.
 Dominant Standard
• Custom is relevant, but not decisive.
o Commentary
 Perhaps courts should intervene when plaintiff class does not have power to pressure
defendant class to raise customary practice and standards.
 Perhaps courts should be less incentivized to intervene when plaintiff and defendant
classes work together to set standards.
• Criticisms
o Judicial deference to custom spares the tort system the difficult and
error-prone task of externally determining an appropriate standard of
conduct.
 Custom develops over time when a group of actors, acting
independently of, and often in competition with each other
reach the same decision regarding the manner in which their
activity should be conducted.
o supplants the invisible hand of custom
o Led to populist manifesto giving rise to products liability

• How you get to statute and how you get to custom are two different
processes. Legislature has met ahead of time to engage in its own cost-
benefit analysis in democratic process. We don't trust industries as much
because they are first beholden to themselves and are primarily motivated by
profit.
• Keep in mind: viol. of saf. stat. raises presumption and favor plaintiffs, than
compliance with safety statutes are helpful to defendants.
o Medical Malpractice
 Majority Rule Professional standard of care is the standard of care.
• Modern trend is to turn to the country as a whole to determine medical
custom, at least with respect to specialists. Brune v. Belinkoff; Hawes v. Chua.
o However, will not necessarily foreclose the relevance of limited
resources of physicians.
 Minority Rule If a test is easily administered and greatly reduces risk of later harm,
then it should be performed.
• Heller v. Carey (Glaucoma!)

RES IPSA LOQUITUR “The Thing Speaks for Itself”

- The Rule
o It may be inferred that the defendant has been negligent when the accident causing the
plaintiff’s physical harm is a type of accident that ordinarily happens because of the

23 | P a g e
 negligence of a class of actors which the defendant is the relevant member. ~RS2d §
17.
 The thing must not usually happen without negligence.
• Misapplication: P lost all feeling from navel-to-knees after injection.
Consequence was “unusual” but no evidence that when it did occur was
usually produced by negligence.
o Applies to:
 Exclusive control The harm-causing incident was under exclusive control of D and
typically wouldn’t occur unless there was some negligence, then we can say that it
sets up a prima facie case (some courts say it constitutes some evidence).
 Normally wouldn’t occur but-for negligence
 Plaintiff did not contribute.
• Situations where sense of justice would be offended if the plaintiff necessarily
were to lose because it could not be established exactly what it was that the
defendant did that was negligent.
• Situations where the the mere fact of the accident having occurred is
evidence of negligence (big ole barrels of flour in Byrne v. Boadle)
- Majority Rule
o Gives rise to permissible inference of negligence.
- Minority Rule
o Gives rise to a rebuttable presumption of negligence; burden shifts to D to disprove
negligence
- Limitations
o Shutt v. Kaufman’s Inc. (P in shoe store sat down bumped a shelf, stand fell and hit her
head; store could’ve been negligent, but Shutt could have proven this was the case and she
didn’t
 Courts don’t want to res ipsa everyone and their mothers to serve as a
shorthand for cases when specific negligence can actually be proved.
• HOWEVER, Modern, Majority Rule: the presence of some direct evidence of
negligence should not deprive plaintiff of the res ipsa inference.
o In some cases, evidence may conclusively establish sequence of
events leading up to the accident as well as circumstances of D’s
conduct.
o In other cases, claim of specific negligence can coexist with res ipsa.
Jury should be encouraged to first consider specific negligence. Res
ipsa only an alternative. Comes up in multiple possible cause
situations (med. Malpractice).
• Traditional, Minority Rule: Any presentation of evidence/testimony to
prove specific negligence waives res ipsa loquitur claim.

o In City of Louisville v. Humphrey, D city’s police were not held strictly liable for
prisoner’s well-being.
 Pirson keeper is not absolute insurer of the safety and well-being of the prisoner;
that’d be an unfair burden. It would be difficult to provide each and every prisoner
with a padded injury-proof, individual cell. After all, in a great majority of cases the
helpless drunk is safer in prison than outside.
• Not going to hold liable becaues the prison didn’t know that the other person
was violent (or if other person was even there).
o Case might have turned the other way
o There is some care in place and there are a lot of people who are
protected
o Notice the way duty interacts with res ipsa
 Duty of care owed to prisoner to guard against fellow prisoners
with a known propensity for violence.
 Turn res ipsa on or off by determining if there is a duty owed by
city for certain types of causal elements.

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MODIFICATION OF THE GENERAL STANDARD ARISING OUT OF SPECIAL
RELATIONSHIPS BETWEEN PARTIES

Responsibility of Possessors of Land for the Safety of Trespassers, Licensees, and

Invitees

Invitees (RS2d § 332)

- Applies to: people induced or encouraged to enter
o Public Invitees—There must be some inducement or encouragement to enter, some
conduct indicating that the premises are provided and intended for public entry and use,
and that the public will not merely be tolerated, but is expected and desired to come. Cmt
d.
 Public or business visitor invited to remain on land ofr a purpose for which land is
open to public.
• E.g., Landowner puts up a sign saying vacant lot is open free for play to all
children.
• Mail carriers
• Utility company meter readers
• A person who provides services for the benefit of the land owner—even if
person does not enter for any explicit business purpose Hall v. Cagle (Miss) (P
invited to help Ds move into new homw, sustained injuries when she fell on
steps to Ds back door)
- LIABILITY—RS2d § 343
o Landowner subject to liability for physical harm caused to invitees by a condition on the land
if and only if he
 Knows or by the exercise of reasonable care would discover the condition, and
 Should realize it involves an unreasonable risk of harm to invitees, and
 Fails to exercise reasonable care to protect them.
o Entitled to higher degree of protection than licensees
o Distinction is that there is an affirmative duty to investigate and discover
conditions

Licensee (RS2d § 330)

- Applies to: people on land by virtue of owner’s consent
o Licensee—person who is privileged to enter and remain on land only by virtue of
possessor’s consent.
 E.g.,
• landowner tacitly permits boys to play ball on his vacant lot
• Most courts hold police officers and fire fighters acting in official capacities as
licensees.
- LIABILITY (RS § 342)
o Possessor knows or has reason to know of the condition and
o Should realize that it inovlves an unreasonable risk of harm ot licensees
o And should expect that they will not discover or realize the danger and
o Fails to exercise reasonable care to make condition safe or to warn the licensees of the
condition and risk involved and
o The licensees do not know or have reason to know of condition and risk involved.

Trespassers (Rs § 329)

- Applies to:
o Trespasser –person who enters or remains upon land in possession of another without a
privilege created by possessor’s consent or otherwise.
 Duty of possessor toward trespasser is to refrain from wanton or willful conduct.

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 • However, if trespasser is on land for purpose of committing a crime,
possessor may be liable only for intentionally injuring trespasser
- Artificial Conditions Highly Dangerous to Constant Trespassers on Limited Area § 335
o Possessor of land who knows, or from facts iwthin his knowledge should know that
o Trespassers constantly intrude upon limited area of land
o is liable for bodily harm caused to trespassers by an artificial condition on land
IF condition
• possessor created it or maintains it
• is, to his knowledge, likely to cause death or serious bodily harm to
trespassers
• is such a nature that he has reason to believe that trespassers will not
discover it and
• posessor has failed to exercise reasonable care to warn such trespassers of
condition and risk involved.
- Artificial Conditions Highly Dangerous to Known Trespassers
o Liable if
 Possessor knows or has reason to know of their presence in dangerous proximity to
condition
 Condition is such that he has reason to believe that trespasser will not discover it or
realize the risk.
- Artificial Conditions Highly Dangerous to Trespassing Children (Attractive nuisance)
o Liable for harm to children trespessing by an artificial condition if
 Condition’s location is one which possessor knows or has reason to know children are
likely to trespass
 Knows/reason to know condition will involve an unreasonable risk of death or serious
bodily harm
 Children because of their youth do not discover condition or realize the risk involved
in intermeddling with it or coming within the area made dangerous by it and
 Utility to possessor of maintaining the condition and the burden of eliminating danger
are slight compared to the risk to children involved and
 Posessor fails to exercise reasonable care to eliminate danger or otherwise protect
children.
- Rowland v. Christian
o California haas a more open-ended balancing approach
 Foreseeability of harm to P
 Degree of certainty plaintiff will suffer injury
 Closeness of connection between D’s conduct and injury suffered
 Moral blame to defednant’s fonduct
 Policy of preventing future harm
 Burden to D and ocnsequences to community of imposing duty, availability, cost and
prevalence of insurance
• Dissent: Person is a licensee. Homeowner shouldn’t have to hover over his
guests with warnings of possible dangers to be found in the condition of the
home. Opens door to potential unlimited liability despite purpose and
circumstances motivating plaintiff in entering premises of another.
o Stability
o Predictability of unitary standard
o Delegates social policy decisions to jury with minimal guidance. Might
subject landowner to unlimited liability. Younce v. Ferguson (WA).
- Middle Ground (Mounsey v. Ellard) (Mass.)
o Retains trespasser category but abolishes licensee invitee distinction.

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Responsibility of Common Carriers for the Safety of their Passengers
- Applies to: “one who engages in the transportation of persons or things from place to place for
hire, and who holds himself out to the public as ready and willing to serve the public, indifferently,
in the particular line in which he is engaged.”
 E.g., ski lifts, elevator, ambulance, cab drivers (not carriages for pleasure), public
transit in general
- FORK
o Majority Rule—common carriers owe higher standard of care, with courts holding carriers
to “highest” degree of care, “extraordinary care, “utmost care,” etc.
o Minority rule—general standard of reasonableness (NY).

Responsibility of Operators of Motor Vehicles for Safety of Their Passengers

- FORK
o Minority Rule—lower standard of care owed (Mass.—overturned by legislation, Georgia)
 Automobile guest legislation—only a few states retain modified duty
• Alabama “wilful or wanton misconduct”
• Oregon applies to operators of aircraft and water-craft

The Abence of a General Duty to Rescue

“The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or
protection does not of itself impose upon him a duty to take such action.” –RS2d § 314

“An actor whose conduct has not created a risk of physical harm to another has no duty to the other
unless a court determines that one of the affirmative duties provided in other sections of Restatement is
applicable.” –RS3d § 37

Affirmative Duty
- Pre-existing relationships between rescuer and rescue-ee RS3d § 40.
- Reliance on other
o Where

The Imposition of Duty

- Justifications of Imposing Duty – Guidance of history, continually refined concepts of morals and
justice, the convenience of the rule, social judgment as to where the loss should fall.

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- Negligence: Proximate Causation, Special Categories of Nonrecovery,
and Defenses

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Trespass to Land and Nuisance

Intentional Trespass
• P must have exclusive possession of the land
• D must intentionally intrude (cause physical invasion) on the land or intend to act with substantial certainty
that the act will cause an intrusion
• Intrusion must be unauthorized
• D is liable without P showing of actual damages (nominal damages OK)

Unintentional Trespass
• Unintentional enrance onto land in possession of another is liable only for recklessness, negligence, or
engaging in extrahazardous activity.
• Unintentional intruder is liable only for harm actually caused by the entry.

General Notes on Trespass

Injunctive Relief
Jurisdictional Fork
• “Minority Rules” — A plaintiff can obtain injunctive relief in most trespass cases for a building
encroachment. Peters v. Archambault (Mass. 1972).
— Airborne particulate matter can support a nuisance claim, but not a trespass claim.
Adams v. Cleveland-Cliffs Iron Co. (Mich. 1999)
• “Majority Rules” — Cases of innocent trespass only call for damage remedies.
— Injunctions trigger a balancing test. Otherwise, courts will not institute balancing
tests for damages. Davis v. Georgia-Pacific Corp. (Oregon 1968)
—

See standards for granting injunctive relief infra.

Public Nuisance – Liability (RS2d 821B)

• D’s action must cause significant interference with right common to the general public
o i.e., public health, safety, peace, comfort or convenience;
OR
• Conduct is prohibited by statute, ordinance or regulation;
OR
• Conduct is continual/continuous? and long-lasting and actor knows or has reason to know of significant effect
on public right

Note: need not involve interferences with interests in land.

May include illegal lottery even if conducted in quiet, unobtrusive manner.

Who Can Recover for Public Nuisance – (RS2d 821C)

• Must have suffered harm of a kind different from other members of public exercising right common to general
public
• In order to maintain a proceeding to enjoin or abate a public nuisance, one must:
o Have right to recover damages as set forth above
o Have authority as a public official or public agency to represent the state or political subdivision in the
matter
o Have standing to sue as a representative of the general public, as a citizen in citizen’s action or class
action member.

Note: Balancing test required for injunctions

Private Nuisance – Liability (RS2d 822)
• P has “some” interest in property
• D’s conduct is cause of invasion of P’s interest in use and enjoyment of land (no physical invasion required)
• Invasion results in significant harm
• D’s invasion is:
o Intentional and unreasonable (balancing of factors focusing on impact of invasion)
OR
o Unintentional and wrongful (negligent, reckless, abnormally dangerous)

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Unreasonableness of Intentional Invasion – (RS2d 826)
• Invasion is unreasonable if gravity of harm outweighs the utility of D’s conduct
OR
• Harm to P is serious and financial burden on D t ocompensate for this type of harm is feasible

Gravity of Harm – Factors Involved (RS2d 827)

• Extent of harm involved
• Character of harm involved
• Social value to type of use or enjoyment
• Suitability of use or enjoyment invaded to character of locality
• Burden of avoiding harm for D

Utility of Conduct – Factors Involved (RS2d 828)

• Social value to primary purpose of conduct
• suitability to locality
• Impracticability of preventing or avoiding the invasion

Gravity vs. Utility – Severe Harm (RS2d 829A)

Coming to the Nuisance – RS2d 840D

Fact plaintiff acquired or improved his land after nuisance interfering is not itself sufficient to bar his action,
but it is a factor to be considered in determining whether nuisance is actionable.

Comment b. Otherwise D could condemn all landin his vicinity without paying any compensation, thus
arrogating himself a good deal of the value of the adjoining land. D must contemplate and expect adjoining
land may be settled, sold, or otherwise transferred and result in nuisance claims.

Illustrations—
• A operates copper smelter. Smoke, fumes, gases create private nuisance for use and enjoyment of B.
C buys land from B to bring a lawsuit. That C’s acquisition was motivated by land will prevent recovery.
• A operates brewery in former residential area in which industrial plants begin to appear. B finds it a
nuisance. C buys land from B. Motivation as well as changing character of locality may be sufficient to
prevent recovery.

Standards for Granting Injunctions (RS2d 936)

• Appropriateness of injunction is based on;
o Nature of interest to be protected;
o Adequacy to P of injunction and other remedies;
o Any unreasonable delay by P on bringing suit;
o Any relative misconduct on part of P;
o Relative hardship likely to result to D if injunction is granted
o Relative hardship to P if it is denied;
o Practicability of framing and enforcing order of judgment (enforcement and administration)

Case Law Authority

Peters v. Archambault (Mass. 1972)— A plaintiff can obtain injunctive relief in most trespass cases for a building
encroachment. MINORITY RULE.

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Strict Liability (SL)
Maintaining Custody of Animals
FORK (Law) RS2d v. RS3d. FORK (Fact) Livestock v. Wild Animal
• Livestock.
o “Possessor of livestock which intrude upon land of another is liable for the intrusion and for any
harm done while upon the land although possessor exercised the utmost care to prevent them
from intruding.” § 504 RS2d Torts.
o Strict liability for damage caused by trespass or intrusion not only to livestock, but to all other
owned or possessed animals other than dogs and cats. § 21 RS3d Torts.
o “Some Jurisdictions” Common Law Rule Landlord cannot recovery for harm caused by wandering
livestock unless owners have protected their property with appropriate fencing.
• Wild animal.
o Owner responsible for actions of animal if it is likely to cause personal injury if unrestrained and
not typically domesticated. RS2d §22(b).
 Gallick: New York City Friends of Ferrets v. New York City
• Contra: Ferrets less dangerous per capita than dogs, techno. adv. (rabies vaccine)
o Plaintiff must establish ownership or possession.
 Ownership or possession may be difficult (rabid mongoose in abutment v. landlord lease)
• Generally, Domestic animals.
o strict liability applies only if owner knows of vicious tendencies of animal.
• Private zookeepers. Strictly liable.
• Public zookeepers. Must be negligent.
• NOTE: § 23 RS2d dispenses with all distinctions ad applies SL according to owner’s actual or constructive
knowledge of animal’s abnormal dangerousness alone:
o “Knows or has reason to know” animal “has dangerous tendencies” abnormal for the animal’s
category is subject to SL “if harm ensues from that dangerous tendency” (cause).
Ultrahazardous or Abnormally Dangerous Activities
THREE-WAY FORK (Law)
• Rylands Test
o Unnatural use—introducing that which in its natural condition was not in or upon it—triggers
strict liability
o See Turner v. Big Lake Oil Co.
 “Natural” = “normal or ordinary,” economic and geographic considerations, dumping
of salt water
o Indiana Harbor Belt Co. v. American Cyanamid
 Court rejected effort to apply strict liability to manufacturer and shipper of acrylonitrile,
a flammable, highly toxic, and possibly carcinogenic chemical used in many
manufacturing processes.
• Restatement (Second) of Torts § 519
1) One who carries on an abnormally dangerous activity is subject to liability for harm to persons,
land, or chattels even if he used the utmost care.
2) Strict liability is limited to kind of harm, the risk of which makes activity normally dangerous.
• “Abnormally Dangerous Activities” Restatement (Second) of Torts § 520
WHETHER
a) Activity involves high degree of risk;
b) Gravity of harm likely to be great;
c) Risk can’t be eliminated by exercise of reasonable care;
d) Activity is not a matter of common usage;
e) Activity is inappropriate to the place where it is carried out;
f) Value of activity to community
o Siegler v. Kuhlman (spilt gasoline and exploding car allowed a res ipsa loquitur inference)
• “Abnormally Dangerous Activities” Restatement (Third) of Torts § 20
b) An activity is abnormally dangerous if:
1. It creates a foreseeable and highly significant risk of physical harm
even when reasonable care is exercised by all actors; and
2. Activity is not one of common usage.
o Commonly regarded as dangerous activities
 Toxic agricultural chemicals
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 oRoberts v. Cardinal Services (aerial crop dusting in Louisiana)
oKell v. Appalachian Power Co. (toxic herbicides for clearing right-of-way)
oBUT SEE Bennett v. Larsen Co. (spraying pesticide with heli not ultrahazardous)
 Courts reluctant to classify the marketing of products as dangerous (p.438-439)
o Exception: Saturday night specials (Kelley v. R.G. Indus., Inc. (Md. 1985)
• Manufactured and marketed for the sole purpose of facilitating crime.

LAW AND POLICY: WHY STRICT LIABILITY?

i. Holmes: Liability without fault would tend to discourage behavior by individuals and other
actors in society that, although potentially harmful to others, was still desirable from the overall
perspective.
ii. Noninstrumentalist perspective: Liability is justified on fairness grounds when the defendant
imposes unusual or nonreciprocal risks on the plaintiff. The concept of nonreciprocal risks is
especially relevant to the justification of strict liability. Abnormally dangerous activities represent
threats of harm that exceed the level of risk to which all members of the community contribute in
roughly equal shares. Pets, for example, are widely owned; these risks off-set each other as they are,
as a class, reciprocal risks. Problems: Many activities that are subject to strict liability are
economically important. Despite the fact that such activities generate asymmetrical risks in society,
they are arguably more socially valuable than other risk-generating activities. In such cases, it is
hard to see why the nonreciprocity or risk should trigger strict liability.
iii. Instrumentalist perspective: A rational actor will not necessarily invest more in care under a
strict liability rule than under a negligence rule. Because residual losses are cheaper to incur than to
prevent, actors will simply pay for such losses rather than the additional investments in safety
necessary to avoid them. Defendants retain the option of simply paying strict liability damages as a
cost of their activity unless liability costs exceed whatever private benefits the activity generates.
Reasons why strict liability is preferred over negligence: Despite ability in theory to
encourage same optimal level of care, the two may vary in practice in incentives they impose on
harm-causing actors. Under negligence, P must show D caused harm and it was unreasonable
behavior. This can be messy and costly Strict liability redresses deficiency in the process of proof by
removing issue of fault. Thus, it functions similarly to res ipsa in correcting perceived imbalances in
trial process. More important, holding actor strictly liable may affect threshold whether and to what
extent to engage in the activity in the first place. Why not have strict liability govern all torts?
Administrative costs (easy vs. more suits "floodates"), unfair to impose liability on those who are
acting in a manner that is deemed to be socially reasonable, advantages of a negligence system in
monitoring plaintiff behavior. Political and cultural factors, such as the desire to promote
industrialization and halt the "crises" in tort litigation and insurance markets.

WHAT AM I DOING WITH PSI Energy v. Roberts?

PSI Energy, Inc. v. Roberts – Examined whether vicarious liability should attach to a principal under an
“intrinsically dangerous” activity exception to the general rule of nonliability. The due precaution exception to
the general rule of non-liability of a principal for acts of independent contractors imposes liability on a principal
where the act to be performed will probably cause injury to others unless due precaution is taken. Requires
foreseeability that performance under conditions absent precautionary measures and probability of causing
injury. Does not render principal liable for contractor’s failure to take normal precautions that would minimize
risk.
Foster v. Preston Mill Co. – A plaintiff cannot recover for damages if the harm is not a normal consequence of
the risk imposed by a dangerous activity. See RS2d 520. (mink mother slays kittens in skittishness from
blasting)

Offensive Battery......................................................................3 Strict Liability.........................................................................32

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Products Liability

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Damages

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