Torts Outline Gibson 2015

Augustine-Adams
1. Introduction
a. Purposes of Tort Law
i. Recompense/restore
ii. Encourage responsible behavior
iii. Deter wrongful conduct
iv. Peaceful resolution for those who take the law into their own hands
2. Tort liability: 3 Possible Bases
a. Intentional conduct
b. Negligent conduct
c. Strict liability
i. Sometimes with abnormally dangerous activity, there is strict liability
1. No matter how many precautions you take, things will still go wrong (inherently
dangerous)
2. Like blasting
3. To internalize all of its costso they can be distributed more equally (blasting to
city)
4. Business cost (part of the cost of doing business)
a. As a society we can look at the real cost of the service (to have a tunnel in
NY)
ii. Public policy
1. Then there has to be a judgment about whether the societal benefit subsidizes the
service
3. Trespass v. Case
a. Trespass (preferable)
i. direct, immediate throw log at guy in road
ii. no proof of actual damage
iii. intent not required
iv. quasi-criminal invasion of someones rights
b. Case
i. indirect fall and trip on log later in day
ii. proof of actual damage required
iii. must show something intent, wrongful conduct
iv. civil not criminal
4. Progression of Tort law:
a. Weaver v. Ward: liability without fault
b. Brown v. Kendall: negligence is lack of ordinary care
c. Cohen v. Petty
d. Spano v. Perini: absolute liability
i. For ultra hazardous activities the question is not whether it was legal to blast or not but
instead who should bear the cost of any resulting damage
INTENTIONAL TORTS
(Establish prima facie case, so there is no directed verdict)
1. Intent (fault based standard)
a. Two standards
i. Intent to cause the action which harms harmful or offensive
1. Or Intend or know with a substantial certainty (Garratt v. Dailey) the action will
result in contact that ends up being harmful
a. HYPO: what if you punch someone because you think it is fun?
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i. Look at if you intended a contact that a reasonable person would

find to be harmful or offensive.
e. Intent
i. When and how do you evaluate if the contact is harmful or offensive?
1. Depend on context, interchange, place and culture
2. Social interchange, what the reasonable person would think.
ii. When do you evaluate, before or after, harmful or offensive?
1. Ex ante or ex poste?
a. Divided in courts
b. Two kinds of intent
i. Subjective (no exception for age) (did you intend to make the contact?)
1. Usually show subjective by reference to objective standard
ii. Objective (majority approach) (now that the contact has been made, would a reasonable
person view as harmful or offensive?)
c. Special Groups
i. Minors
1. Can be held liable for their torts
2. Hold to a reasonable person standard
3. Must be old enough to form substantial certainty intent
4. Many states have enacted statutes to make parents liable
a. free radicals: young kids, insane, normal incentive programs do not
work that they are not able to prevent the harm, so it should be on the
parent.
ii. Insane (McGuire, lady w/ chair leg)
1. Liable
2. Must have been able to entertain the intent
3. Policy
b. Innocent people should not have to pay damages
c. Encourages those taking care of insane people to be cautious
d. Keep people from using defense of insanity
d. Transferred Intent (Talmage, boys on roof)
i. Intent transfers between torts and people
1. Even if your intent is assault, and you end up battering someone else it is a battery
2. WHY? Tortfeasors action is just as culpable when her aim is bad as when the aim
is good
3. From the old trespass writ, transferred intent only occurs in:
a. Battery, assault, false imprisonment, trespass to land, trespass to chattel
ii. Intent does not transfer in IIED
i. Restatement of battery incorporates transferred intent?
1. It does in a way that it incorporates assault
ii. HYPO: intend to hit a dog and hit a person (intent to commit trespass on chattels)
1. By a terms if the jurisdiction has adopted the restatement, good argument that it
does not transfer.
2. Assault (IUIPI):
a. Definition:
i. Acts intending to cause a harmful or offensive contact with the person (or another),
or an imminent apprehension of such contact
a. Intent
a. Intent to make contact (real or substantial certainty)--battery
b. Intent to create apprehension
b. Unlawful
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c. Imminent apprehension
i. Need to be aware at the time of the threat itself (i.e. cant be asleep)
ii. Doesnt require being scared (dont have to be afraid, just apprehend that the contact
would occur)
d. Present apparent ability
i. Must be present, not future threat
ii. Reasonable person standard
iii. Actual ability isnt necessary, only reasonable ability (question for the jury)
1. Unloaded gun to someones head, does the person know its unloaded?
2. (Western Union midget says Ill fix your clock but cant reach P)
e. Imminent battery
i. Immediacy, future threats dont work (no significant delay) do that again/next time I
see you, Ill kill you! not assault
ii. Proximity whistles from a car passing by on street not assault because cant inflict
imminent battery
iii. Words alone are not enough
iv. Words with an overt act is enough (I de S, at tavern door)
f. Standard
i. Objective reasonable person (if not informed)
ii. Subjective (I hate people touching me) if informed
g. Exceptions
i. Asleep or unconscious cannot be assaulted
i. Not necessarily every battery constitutes an assaultnot put in imminent apprehension of
the contact (if person is asleep, no assault).
1. HYPOS:
a. Defendant who is 100 yards toward plaintiff, throwing rocks. Assault?
i. At some point he will get close enough, there will be imminent
apprehension
b. KKK members carrying guns and scaring fisherman
i. Flashing guns, and there is a context that this is a threatening
group. Reasonable apprehended imminent contact.
c. If you dont go to bed with me, Ill throw you out the window
i. Assault, the imposition of a condition that the assailant has no right
to impose will
3. Battery (IHC)
a. Definition:
i. Intentional infliction of a harmful or offensive bodily contact
a. Voluntary Act:
a. Must be a volitional movement by the actor of some part of his body
b. Intent:
a. Higher level of culpability than mere carelessness
b. 2 possible standards for intent:
i. Garatt standard: contactthat is harmful
ii. Restatement standard: harmful contact
c. 3 types of Intent for Battery:
i. Desire to cause Harmful or offensive contact
1. Objective
I.
Did the contact happen? Was the contact one that a reasonable
person would find harmful or offensive? (offensive generally
held to an objective standard unless informed)
II.
Offensive: offends a reasonable sense of personal dignity
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ii. Desire to frighten (assault): intent to cause assault is enough for battery
iii. Substantial certainty that the harmful or offensive contact is likely to occur
1. Subjective test: issue is what D really thought, not what he should have
thought.
2. Means almost certain, not very likely
c. Contact substantially certain: that a contact is substantially certain to result
a. Objects intimately connected to the person (Fisher, grabbed plate)
i. Setting a wire out, knowing that the person will trip later is enough contact
d. Causation: the harmful/offensive touching must be caused by the Ds act or some force that the
act sets in motion. This element is satisfied if the Ds conduct directly or indirectly results in
the injury
e. In a rude, angry or insolent manner Not required but it does strengthen the argument
a. Generally if held liable for a battery, held liable for all damages that occur (not just those
reasonable or anticipated)
b. ALSO through transferred intent from battery of another person.
i. Transferred Intent Doctrine:
1. If the D acts intending to cause battery (or any of the other 4 intentional
torts that evolved from trespass) to a person, the D will be liable on an
intentional tort theory if ANY of the given harms occur to that person OR
to another person even if the other person is unexpected and the harm is
unexpected
4. False Imprisonment (IADUN) NOT COVERED
a. When you restrain or confine another person, against his will, without legal justification.
5. Trespass to land (IUP)
a. Definition
i. A trespass to land can occur when the defendant enters the plaintiffs land, or causes
another person or an object to enter the plaintiffs land
1. Wrongfully remaining after permission has been withdrawn
2. Failure to remove
a. Intent
a. To step on property, not necessarily to trespass (but must be VOLUNTARY entrance)
b. Trespass for good reason is NOT a defense
c. Damages are presumed, no actual harm required (Dougherty, surveyor who did no
damagegrass treading down)
b. Unauthorized Entry/Intrusion Upon Land
a. Must be a physical invasion where something tangible physically touches the realty
(MAJORITY)
i. MINORITY: when anything tangible or physical crosses property lines (Herrin ,
fires shotgun over land)
b. No need to put up a sign or fences as the owner
c. Exceed scope of consent (Rogers, snow fence left on property)
d. Constructive Consent UPS man, mailman, etc.
c. Property of another
a. Land above and below is included (Herrin, bullet in air as trespass)
i. Trespass only if immediate reaches of airspace, if it interferes with the quiet
enjoyment/ encroachment of space.
b. Action can be brought by owner or tenant in exclusive possession
c. Usually should be tangible, non-tangible usually treated as nuisance
d. P in Possession
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a. At the time of the trespass, the Ps interest in the land must be either actual possession or
the right to immediate possession
i. Actual possession: The person actually in possession may bring an action for
trespass because any possession is a legal possession as against a trespasser. Even
a wrongful occupier (adverse possessor) may maintain a trespass action against a
wrongful intruder
ii. Right to Immediate possession: If no one is in actual possession, the person
who has the right to immediate possession may maintain the action. Immediate
means the holder of some present possessory estate, as contrasted with a future
interest
e. Causation:
a. Invasion must be caused by the Ds intentional act or some force set in motion thereby
b. Trespasser IS liable for harm to person or property caused to the owner, even if the harm
was NOT foreseeable
i. Ex: confrontation with the trespasser caused owner to have a heart attack (Baker
v. Shymkiv)
f. Even if it is a mistake
a. Mistake is NOT a defense
b. Even if you think you are on your own land but actually are on someone elses, it is a
trespass
g. No need for actual damages
a. Entitled for nominal damages ONLY in trespass cases
i. HYPO: tenant overstays lease, then a 3rd party comes in and trespass. Tenant still
has right to assert possessory interest. (even though you are illegally squatting on
the land)
ii. HYPO: shoot across land, and accidentally hits owner (only intending to
trespass). Transferred intent you can hold for battery.
1. Does it always make sense? Shoot a dog and hit a person? Trespass on
chattel.
6. IIED (IRE CSP)
a. Intentional or reckless (some states) conduct
a. Types of Intent:
i. D intended to bring about the distress
ii. D knew with substantial certainty distress will occur (Taylor, saw father beaten, D
didnt know she was there)
1. Havent required that you intend the consequencemore intend the
contact.
iii. D recklessly disregarded the possibility that distress would result
b. Intent CANNOT transfer
i. Transfer is limited to old trespass: assault, battery, trespass on land, false
imprisonment, trespass to chattel
b. Extreme or outrageous conduct/action
a. Objective standard
b. Mere insults generally NOT enough (Slocum v. Food Fair Stores of FL)
c. Usually an objective standard: person of ordinary sensitivity (unless person knew of
sensitivity)
d. How extreme does the conduct have to be? Sometimes you look at the consequences
instead.
c. Causal connection between conduct and emotional distress
a. Must show a causal relationship (Harris, stuttering problem)
b. If P already had distress before Ds conduct, no casual relationship
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c. Egg Shell Rule: take your P as you find him

d. Severe emotional distress (can argue both ways if the distress is severe enough)
a. Normal person standard (not a hypersensitive person, unless D is aware)
b. Two Standards:
i. Restatement do not need physical manifestation of harm
1. Difficult to determine damages (value)
2. Difficult to prove (expert testimony)
3. Courts are not well-equipped to deal with this kind of harm
4. Floodgates of litigationdont want to make a tort out of every action.
(juries decide)
ii. CA Most jurisdictions allow you to recover for emotional distress alone, DO
NOT require P to show that the distress resulted in bodily harm
1. MUST have at least sought medical aid
2. But usually threatened of physical harm
e. Exception:
a. If D directs conduct to member of immediate family, where the P is present, and Ps
presence is known, then can claim IIED.
b. However, if D does NOT know that member of immediate family is present, then no
IIED because there is no intent to inflict emotional distress upon her (Taylor v.
Vallelunga)
PRIVILEGES
1. Consent
a. Objective standard: what a reasonable person would think is consent
b. To an illegal activity?
i. Consent is invalid, cannot consent to an illegal activity
1. Illegal prize fight, injured in fight, even though consented, consent is invalid and
will be able to recover for injuries
ii. Generally dont allow minors to consent to illegal activities (statutory rape)
c. POLICY:
i. Think carefully about the actual incentives about the actual rule
ii. Dont use general standards about deterrence
1. Usually ends up to be a wash
2. 2 Basic Types of Consent
a. Consent Based on Ps Behavior:
i. Actual Express Consent
1. Intentionally conveyed by word or conduct, communicates to the D a willingness
to submit to the Ds conduct
ii. Apparent Consent/Implied in Fact
1. Acting in a way that a RPP would take as consent
a. action as implied consent (OBrien, arm vaccination)
2. Standard of OBJECTIVE MANIFESTATION
a. you cant always know what is in someones mind
3. Silence can be viewed as consent
b. Implied in Law:
i. Person is incapable of giving consent but RPP would have
1. Medical Emergencies requirements:
a. Patient is unable to give consent (unconscious)
b. Physician has no reason to believe patient would refuse treatment under
circumstances
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c. Reasonable person in the Ps condition would consent

d. Life-threatening emergency, immediate decision is necessary
2. Non-emergencies dont work (Mohr, right ear to left ear)
c. Exceptions:
i. Fraudulent consent is invalid (DeMay, married woman giving birth)
ii. Sports are not a free for all (Hackbart, football player)
1. General customs of the game ok, but players do NOT consent to violence/harm
outside of the regular course of the game or after a play has ended
iii. Consent given under duress is invalid
iv. You cannot exceed scope of consent given
v. Some people are unable to give consent (minors, insane people)
vi. Beneficial nature if dr. operated in good faith, you may not have much recovery (Mohr)
d. Burden of Proof
i. Minority: D must prove consent as an affirmative defense
a. BUT ALWAYS for trespass of land cases (affirmative defense)
ii. Majority: lack of consent is part of Ps prima facie case (not an affirmative defense)
a. What about illegal activities? Is there tort liability? (deterrent effect,
policy)
3. Defense of Self (Self-Defense)
a. Rule of Self-defense (RFNR) almost always affirmative defense (only exception is police
officer as D)
i. Reasonable force (to defend against threatened battery from another)
ii. Force Proportional to level of threat
1. Considerations:
a. differences in age, weight, height, size, relative strength, if there is a gun
used
2. To justify deadly force, D must have reasonable apprehension of loss of life or
great bodily injury
a. D has burden of proof that amount used was necessary
iii. No Retaliation Privilege terminates when battery is no longer imminent
iv. Duty to Retreat?
1. Restatement: D may use non-deadly force rather than retreating; not deadly force
unless in home.
2. MINORITY rule: retreat rather than employ deadly force, not if you have the
slightest doubt that a retreat can be safely made
3. MAJORITY rule: you can stand your ground and you dont have to retreat, can
respond with reasonable force
4. In your own home you do not have to retreat
b. Reasonable Belief/Mistake
i. Privilege exists when D reasonably believes, even if mistake, that force is necessary
against a battery even if no actual necessity (subjective), must be actually reasonable
(objective).
1. THEREFORE, reasonable mistake is ok, can still invoke privilege (as opposed to
trespass)
c. Provocation
i. Insults, verbal threats, and contemptuous language are insufficient
d. Amount of Force, must be proportionate
i. Privilege limited to use of force that appears reasonably necessary for protection against a
battery
ii. If D uses force beyond that which is reasonable, then attacker has the privilege
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e. Injury to 3rd party

i. Transferred intent, 3rd party injured unintentionally as result of SD, privilege carries over,
D is not liable
f. Threats of Force:
i. D is privileged to threaten more force than he would in fact be privileged to use in selfdefense, provided he has no reason to believe his threats will do more than place the P in
apprehension (this protects the D from liability for assault based on such threats)
4. Defense of Others
a. Nature of Privilege
i. Mostly about defending family members, but not so limited
b. 2 Views of Reasonable Mistake:
i. Intervener steps in the shoes of person he is defending, and if he helps the aggressor, he
is liable
ii. Other courts hold that D is privileged to use reasonable force to defend the person,
whether or not there is a reasonable mistake (restatement position)
5. Defense of Property/Land/Chattels
a. No deadly force or serious bodily injury
i. Some exceptions Stand your ground laws in TX and LA, and some other states,
make my day laws in CO and FL
1. BUT, most state statutes protecting homeowners that use deadly force only apply
when the homeowners are actually present in their homes, in which case the
home-defense situations are really self-defense situations
b. Reasonable force; only deadly force if defending life or limb (Katko, mans leg shot off by spring
gun)
i. Human life more valuable than property
c. Warnings are not usually sufficient for deadly force
i. Barbed wire might, in itself, be a sufficient warning
ii. Mechanical devices (spring guns): only allowed if deadly force would have been allowed
against that particular intruder
d. Reasonable mistake applies
e. Threats of Force:
i. D is privileged to threaten more force than he would in fact be privileged to use in selfdefense, provided he has no reason to believe his threats will do more than place the P in
apprehension (this protects the D from liability for assault based on such threats)
f. Shop Owners privilege; able to detain a potential shoplifter
6. Necessity
a. Generally
i. A person may injure the property of another to avoid greater harm to public, himself or
his property
ii. Private rights give way to protecting the public
b. Public necessity (AID)
i. Apparent/Actual necessity mistakes are okay, (Surroco, San Francisco house blown up
to stop fire)
1. Should be reasonable, action must be done in good faith
2. Act does NOT have to actually prevent the disaster/protect the public interest, it
just has to be done for that purpose
3. weigh the risks vs. the costs of avoiding the harm
a. Should it turn on whether the house was going to be destroyed anyway?
Causation perspective
ii. Imminent threat of harm
iii. Does not require public office or authority
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1. if all criteria apply, you pay no damages (unless property was not going to be
damaged)
a. Default rule: Surroco standard; If want damages, then the legislature can
pass a law in any given instance to allow compensation.
b. Rationale for damages rule:
i. Adverse incentive: if damages had to be paid, wouldnt have
incentive to protect the public if it was too expensive. Let the fire
burn down as many houses, and individuals would pay, not city.
ii. Distribution of costs or concentration of costs.
iv. Complete Privilege: D that successfully pleads the privilege of public necessity does not
have to pay any damages at all
c. Private necessity (AID)
i. Actual or apparent
ii. Imminent threat of harm to a private interest
iii. Does not require office or authority
iv. Incomplete privilege
1. You must pay damages, even if not morally accountable, but not tort or punitive
damages (if there is an intentional tort for trespass).
2. (Vincent, steamship tied to dock during storm)
a. HYPO: dock owner thinks that his dock is incurring too much damage.
Can he untie the boat himself?
i. Shipowner could tie up boat in the first place, but the dock owner
has his own necessity defense to protect his own property. Who
pays?
ii. Best incentive to make the right decisions. Law cant do very much
to influence behavior
v. Reasonable necessity (consider value of things involved)
vi. Act of God

ADD JUSTIFCATION
NEGLIGENCE
1. Elements of Negligence:
a. Duty
b. Breach: failure to conform behavior to duty
c. Causation: factual (but for) and legal (proximate) causation
d. Harm/Damages: different than intentional torts (which were nominal damages), no sense of
nominal damages
i. Grew out of trespass on the case, which always needed to show damages
2. DUTY
a. Reasonableness test
i. P must show that Ds conduct imposed an unreasonable risk of harm on P
ii. Should it be empirical or normative? What you should do or what people actually do?
iii. Asking jurors to conceptualize a hypothetical reasonable person.
iv. An emergency qualification: to be excused, emergency must be unforeseen, sudden, and
unexpected. (Peerless, cab driver jumps out of hijacked cab)
1. Jury instructions: reasonable under the circumstances? (emergency is just part of
what makes this)
b. Ways for setting a Duty
i. Hand Formula
ii. Rules of Law
iii. Statute
iv. Custom
c. General Duty
i. RPP - Ordinary, cautious, using best judgment
1. Holmes opinion: separate out morality from conduct
ii. Objective v. Subjective standards
1. Smart Person (UP)
a. If D has superior intelligence, judgment or knowledge, he is held to higher
standard
b. One who sets himself out as an expert
2. Dumb (SAME)
a. Even if lacking common sense, held to RPP standard
b. No subjectifying down for intelligence (Vaughan, haystack)
3. Ignorant Person (SAME)
a. Liable for what we know or should have known (DeLair, driving on bald
tires)
i. applies to social customs in a communitya stranger is assumed
to know or seek out the information
4. Emergency (DOWN) - Under the circumstances
a. Emergency situations make an otherwise negligent act reasonable
b. Actor is not obligated to protect others at his own expense (Cordas,
runaway cab)
5. Physical limitations (DOWN)
a. RP Blind person (Roberts, blind deli worker)
i. If held to a higher standard, might lose incentive to act as a
reasonable blind person. They could never reach that standard.
ii. Sometimes this means more care than a reasonable person, as in
crossing the street.
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6. Mentally Handicapped/Insane (SAME) (Breunig, delusional driver, fly like

Batman)
a. Policy: Courts want to discourage people from using this as an excuse
i. That person caused the harm should be responsible/ caretakers
more careful
ii. BUT dont you want to give them incentive to be the best
handicapped person?
b. BUT: down syndrome/autism will probably receive a subjectified lower
standard
c. Exception - Sudden, unforeseeable w/ no previous knowledge (or with
biological origins)
7. Children (DOWN)
a. Law subjectifies down to level of RP child of that age
b. Exception: children engaging in adult activities/ inherently dangerous
activity (Robinson, snow mobile)
i. Greater potential for harm
ii. Ohio Approach:
1. Up to age 7, there is an irrebuttable presumption that you
cannot be negligent
2. 7-14 a rebuttable presumption that you cannot be negligent
3. Above 14 rebuttable presumption that you can be negligent
8. Gender (SAME)
a. Majority: Same
b. Minority Exception: RP Woman 9th circuit (Ellison, sexual harassment)
iii. Professional
1. Generally
a. One who engages in professional occupation is held to RP Professional
standard
b. Subjectify UP for additional training, but SAME for lack of training
2. Pilots
a. Objective professional standard (Heath, airplane crash kills passengers)
3. Attorney
a. Expected to have skill, knowledge and ability of RP attorney
b. Good faith effort
i. Uses best judgment
ii. Exercises ordinary care and diligence in use of his skills
iii. NOT liable for a mere error of judgment, or on which reasonable
doubt about the subject would be entertained by well-informed
lawyers.
c. Custom v. Law
i. If attorney relies on a custom in good faith, but the statute says
otherwise, court may still rely on custom and say their effort was
reasonable
ii. (Hodges, service of process doesnt work)
d. Question of causation would they have lost anyway?
4. Doctors
a. Ordinary Doctor
i. Licensed
ii. Degree of learning and skill by ordinary member of profession
iii. Standard of care for community/ similar locale
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iv. Standard shown by affirmative evidence (requires expert w/ one

exception)
1. Exception: grossly apparent, even lay person would
understand
v. Expert must testify to custom of doctors in that area (Locality rule)
1. CUSTOM is dispositivemore than in the legal profession
2. Could look at similar jurisdictions, hold to that standard of
care
a. Doctors dont like to testify against other doctors in
same hospital
3. Argue: Morrison case, holds to National standard (used to
be because of urban-rural disparity, doesnt exist so much
any more)
a. Specialists more likely to have a national standard
of care
b. Movement toward national standard
c. Or something like similar locality
vi. Access to technology??
1. Argue: is a national standard of care for doctors in effect a
requirement that all doctors have the same or at least have
access to the same technology?
b. Specialists
i. Held to a higher standard, when someone holds herself out as a
specialist in a certain portion of her profession
ii. Ex: ophthalmologists and tax lawyers
5. Dr. has Two Torts
a. Failure to disclose/lack of informed consent
i. Patient must show that they were not informed
1. Informing standard
a. RP Doctor
b. Reasonable Patient (MAJORITY)
c. Actual Patientwhat this person would have done
2. Patient must be told for Informed Consent (what RP patient
would want to know to make reasonable decision, not what
RP Doctor would tell her)
a. Treatment
b. Available alternatives
c. Collateral risks (side effects)
d. Material Risks (HIV, alcoholism, success rate, sue
rate, probability of death or dismemberment)
e. Personal interest of the doctor (Moore, leukemia
kidney)
3. No need to disclose IF:
a. Risks are common knowledge
b. Disclosure would not be in the best interest of the
patient
c. It is an emergency and the patient cant decide for
himself
4. Patient must show that they would not have consented
Causal Connection (two jurisdictions)
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a. Objective standard: reasonable person would have

consented
b. Subjective standard: this person would have
consented
5. The harm not warned of must have occurred
ii. Material v. Important
1. Doctor is only required to inform of what is Material, not
important
b. Malpractice
i. Generally
1. Professionals must act with the level of skill and learning
commonly possessed by members of the profession in good
standing.
a. NOT held that there would be a successful result,
just that someone acted without the requisite
minimum skill and competence
ii. Standard
1. Expert testimony
a. Must establish both the standard course of conduct
in the profession, and that the D departed from it
b. Exception: when the conduct of the D is so
obviously negligent that a lay person could tell it
was malpractice (ex: leaving a 8-inch surgical pad
inside the body)
2. Standard of the community: OBJECTIVE
a. Local standard (minority
b. National standard (growing)
i. Increases standard of care
ii. Training is better
iii. National certification
c. Similar locality (majority)
i. Need to protect small town Dr.s from big
city standards
iii. Proving Malpractice (Boyce, doctor doesnt X-ray foot)
1. Reasonable care, skill, learning of RP doctor
2. D must have done or not done something the standard
requires
3. Standard of medical community affirmatively proven
4. Negligence is never presumed
5. Negligence proved by expert medical testimony
6. Testimony of others that they would have done differently
is not enough
iv. Custom
1. The way a certain activity is habitually carried out in a trade or community
2. NOT DISPOSITIVE jury still gets to decide
a. Exception: medical malpractice requires experts
b. Custom is determinative in the medical field
3. Ultimately depends on what a jury requires
4. Custom can establish a duty (Trimarco, shower door shatters landlord liable)
a. Cost-benefit analysis: the custom has established from doing such an
analysis
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i. EXAM: Look at incentives, market value, do we want people to

make these choices (are they informed about the risks that they are
taking?)
ii. Problem: Whose custom do you abide by? Big companies or small
ones?
b. But courts dont want to just sign off on whatever an industry is doing
5. When there is a customary way of doing things and D fails to conform, subjectify
UP
v. Learned Hand Formula
1. P must show unreasonable risk
2. The equation (US Carroll Towing, boat breaks away w/ no personnel, negligent
not to have him there?)
a. B<PL=Liable, B>PL=Not liable
i. Burden is less than Probability times Loss (or Injury)
ii. Burden and Probability are easy to decide, Loss can be hard to
decide
1. B= burden or cost of taking precaution
2. P=probability that loss/injury will occur
3. L= likely cost of injury/ loss/damages
b. High loss makes up for low probability (Gulf Refining,
exploding gas cap)
c. Unforeseeable events, not liable (Blyth, water pipes freeze)
d. Low burden against high injury (Chicago RR, railroad
turntable)
e. Too great a public burden (Davison, weak freeway barrier)
3. The Hand Formula is not a replacement of RPP, but rather a way
to figure out what a RPP would do
a. Policy
i. Less subjective, more predictable
1. Shows how Ds who are economically motivated will act in
response to negligence liability
ii. not a concrete mathematical formulaknew these things could not
be easily quantified
iii. if a jury has to make nominal determinations to impose damages,
why not do it before hand? (rebutting the fact that this is all done in
money)
iv. need to look at MARGINAL COSTS (in pieces, separate out how
much cost for each step)
1. so $1 of precaution avoids $1 of cost
4. Problem w/Formula
a. Should economic efficiency be preferred to determine use of resources?
i. Places a dollar amount on injury
ii. Foregone opportunities cannot be placed in a single currency
b. Inadvertent or unforeseeable activity not taken into account
c. tendency to underestimate frequency of catastrophic events (ex. Tanker
spill)
d. Social utility might be a concern, how much value does the service
provide?
14

i. Under restatement, a jury would be able to evaluate the social

value of a dangerous roller coastertakes everything in account
under a money analysis
e. Businesses: disconnect with Hand/ might be worried about punitive
damages more than concrete damages
5. Consider
a. character and location of the premises
b. purpose for which they are used,
c. probability of injury therefrom
d. precautions necessary to prevent such injury
e. relations such precautions bear to the beneficial use of the premises
(depends on particular facts in each case) use RPP standard, under like
circumstances
6. Who is in better position to take the precautions?
a. Least cost avoider (whoever avoiding the accident it would cost the least)
b. Learned Hand formula might say that both the P and the D should have
taken steps to avoid the risk
vi. Rules of Law/ Case law
1. When courts attempt to regulate standards of behavior by issuing strict
rules, these standards are likely to be too inflexible and courts dont like to
apply in every situation.
2. Should bright line rules be established? (Pokara, man hit by train who doesnt get
out and look)
a. predictable
b. it would make negligence decisions less arbitrary
c. promotes judicial economy
d. increase general safety
3. Justice Holmes: there should be one rule (pro rules of law), i.e. if you cant see
RR, get out of car
4. Judge Cardozo: Different circumstances make standard of care question for jury
(against rules of law)
5. Majority:
a. Negligence, as a matter of law, is not to stop, look and listen when at a RR
b. However, this rule has proved unreasonable in many circumstances
6. Rules of Law = Courts, Statutes = Legislature
7.
vii. Statutory Negligence: Negligence Per Se
1. Statute is only relevant if the following are true:
a. Injured person is member of class meant to be protected (Osborne,
unlabeled poison)
b. Harm suffered is type statute trying to protect against
(Stachniewicz, bar room brawl)
i. Perry analysis (criminal statutes)
1. Omission or commission?
2. Causation?
3. Disproportionate difference between the wrong and the
liability?
4. Vagueness?
5. Common Law duty? (goes to notice)
15

c. Ds not complying w/ statute caused the harm (Ney, cab left

running; thief gets away)
i. Discretionary with the court
1. Factors:
a. Causal connection
b. Imposed ruinous liability disproportionate to
seriousness of conduct (disproportional requirement
in legislatures eyes)
c. Statute clearly defines conduct
2. How to apply the statute: 3 Procedural Effects of a Statutory Standard of
Negligence
a. Negligence per se (by itself) as a matter of law
i. Where an unexcused violation of a statute is negligence and D
will not be permitted to show that there was an unduly high
standard of care
ii. Strong Negligence per se: (DBCH)
1. If you violate the statute you recover NOTHING (Martin,
buggy in road)
a. Almost strict liability
2. Negligence as a matter of law cannot defend against
3. Bright-line if you violate statute, you are liable, no need
to send to jury (Osborne v. McMasters, statute required
bottle to be labeled poison)
4. Failure to meet statute of limitations is negligence per se
for attorneys
iii. Weak Negligence per se: (DB only)
1. D and B decided by judge as matter of law
2. C and H decided by jury as matter of fact
b. Rebuttable presumption/Presumption of negligence
i. Prima facie negligence
ii. D is presumed to have been negligent but given the opportunity to
rebut
1. Allows you to explain the circumstances (Zeni, woman
walking in snow)
2. D has the burden of production to give excuse
iii. Can defend against, but it is pretty strong
iv. Two standards
1. Minority: No excuseGoes to the jury
2. Majority: No excuse negligence presumed
v. Requires:
1. Positive/Affirmative
2. Strong
3. Credible
4. Unequivocal evidence
5. that it was more reasonable to violate the statute than not to
vi. Ways to rebut: Excuses (restatement approach)
1. Not an excuse that you were otherwise exercising due care/
for violating statute
a. Physically disable
b. Emergency
c. Incapable of complying
16

d. No knowledge, unaware of the factual

circumstances
e. Greater risk in Complying
vii. Policy
1. Protects DP and intent of legislature
c. Evidence of Negligence
i. Violation of the statute is just evidence of negligence for jury to
consider
ii. Question goes to the jury; violation is merely evidence of
negligence
iii. Court asks
1. Knowledge of the duty
2. Clearly defined duty?
3. Should Strict Liability apply?
4. Disproportionate result from imposing liability (Perry,
child abuse)
5. Can proximate or direct causation be shown?
3. BREACH
a. Determining if a breach took place:
i. Time (sufficient notice)
1. Constructive Notice (Kmart, milk on floor)
a. Did D have sufficient notice of problem to correct?
b. Burden of proof is on P to show D had constructive notice of the problem
and failed to fix
ii. Did D exercise reasonable care to reduce or eliminate the risk?
b. Burden of proof on D to show he did not breach duty
c. Mode of operation rule
i. Dangerous conditions continuous or easily foreseeable (Jasko, pizza on floor)
ii. Actual or constructive notice is not required
iii. Inherently dangerous
d. Circumstantial Evidence
i. One or more inferences which can be said to reasonably arise from the facts
ii. Pay attention to details if good enough, and closely tied enough, it might be enough to
draw conclusion
iii. Allows for an inference of negligence
1. Burden of proof shifts to D to show that he was not negligent
2. Jury determines whether there was negligence and liability
e. Bananas
i. Has the instrument been there for a reasonable period of time?
ii. If the evidence has been there for a while, was there active notice to D?
iii. If not active notice, was there constructive notice (should have known)?
iv. If there is neither constructive nor actual notice, there is not evidence of negligence
v.
4. Res Ipsa Loquitur: The thing speaks for itself; VERY RARE
i. Elements
1. No direct evidence as to whether D was negligent
2. D has exclusive control (St. Francis, chair falls from hotel window, no control)
3. Not the type of accident that would occur w/o negligence/D must have been
negligent (Byrne, falling barrel of flour)
4. P sufficiently eliminates other possible causes (older rule)
17

a. Just has to prove more than 50% probability that there was negligence
b. Other jurisdictions - P is free from contributory negligence
ii. Almost approximates strict liability
1. If there is no real argument D can use to get out of liability, it is REALLY close to
strict liability
iii. Immediate precipitating cause may permit a conclusion of negligence
b. Res Ipsa w/ Collective Exclusive Control (Ybarra, has surgery and wakes up w/ hurt arm)
i. Each D must show they were not responsible for the harm
ii. If all Ds show they were not responsible, all are held liable (responsibility reverts back to
group)
1. D is in the best position to produce evidence
2. Smoke out rule
iii. Generally, need to show that the Ds all bore an integrated relationship as professional
colleagues.
1. When strangers, or have only an ordinary duty of care to the Plaintiff, res ipsa
generally NOT applied
c. 3 Applications/ PROCEDURALEFFECT of Res Ipsa: (progressively more harsh, LOOK at
shift of Proof)
i. Inference of negligence: usually
1. Jury determines whether there was negligence and liability
2. w/ statute it is called Evidence of Negligence
3. Ordinarily, RIL merely permits jury to choose inference of Ds negligence
a. GOES TO JURY AFTER RES IPSA is met
ii. Rebuttable Presumption of negligence
1. Assume D is negligent
2. D has an opportunity to show he was not negligent to rebut the presumption
(burden of production)
a. If 50-50, burden of persuasion with Plaintiff, then D wins
3. positive, unequivocal evidence in statute
iii. Negligence per se; Directed verdict; Shifts burden of proof to D (ULTIMATE)
1. Very rare; all 3 elements must be satisfied w/o a doubt; sets high standard of
evidence P must prove
2. A preponderance of the evidence (like negligence per se but still allows D to do
something to show he was not negligent not quite as harsh)
3. Burden of proof is on the plaintiff
4. Jury has the option of deciding whether or not to apply res ipsa (judge will
instruct them and they make the choice)
iv. Policy
1. D generally has control of the environment and
2. Either caused the harm himself or
3. Has best position to tell who caused the harm
a. Generally a smoke out policy, so there is no conspiracy between parties
v. Less application today
1. Broader access to discovery mechanisms (better procedural tools)
a. BUT discovery is expensive, bogs down law suits

CAUSATION
a. Causation in fact (gets you in the door and allows you to form a cause of action)
vi. Sine qua non but for causation
18

a. A but for cause, NOT the but for cause

b. more likely than not (51%)
2. But For application (Perkins, train at 37 mph instead of 25 mph)
a. If P was likely injured ONLY because of Ds negligence, but for.
b. If the person would have been injured anyway, no but for.
i. Due care from the negligence would have had to prevent the injury
from happening
3. Burden of Proof
a. Ds burden: Possibility (less than 50%)
b. Ps burden: probability (more than 50%)
c. P has initial burden
4. BOTH causation in fact and causation in law (Proximate Cause) must be met
vii. Joint and several liability
1. Both Ds negligence was necessary to cause the injuryboth but for
2. Single, theoretically indivisible harm
3. Separate acts of negligence combine to produce single result (Hill, passenger in
car, 2 negligent parties, didnt see tractor in middle of road in PM liable for
entire harm)
4. Each tortfeasor responsible for entire result (even if his act alone may not have
caused it)
a. Each are but for causes, and each substantial factor, then you can
collect
b. Each negligent defendant is liable for the whole harmdeep pocket
i. HYPO: D1 scratches P. P goes to the hospital where D2 is a doctor
who negligently causes her to lose her arm. P can generally recover
the entire damage either from D1 or D2.
viii. Substantial Factor Test (proof of causation in fact)
1. Generally
a. If P shows enough that Ds acts or omissions increased risk of harm, that
evidence gives a basis for a jury determination as to whether the
increased risk was a substantial factor
2. Lower threshold than SQN; less strict
3. Court may limit damages
4. Application
a. Suspicion not enough for SF (Gentry, deer hunter falls on porch w/ gun)
b. Co-existence not enough for SF (Kramer, cut in forehead and cancer)
c. Probable reduction of chances is enough for SF (Herskovits, 39 to 25, Dr.
didnt diagnose early enough)
d. Future damages as enough?
i. Majority: P will have to show 51% likelihood that he will be
injured
ii. Minority: Not SF
e. D doesnt have burden of proving a difference cause
f. Possibility harm would have happened w/o D doesnt defeat SF
(Reynolds, fat woman on stairs)
5. Loss of Chance doctrine: Medical Misdiagnoses
a. If a doctor misdiagnoses the patients condition, thus delaying treatment,
and can be shown statistically that this delay caused the patients chance of
survival to be reduced, is the doctor liable?

19

i. Some jurisdictions: Dr. can be liable, even if the patient would

have died with proper diagnosis (Herskovits, doctor didnt
diagnose patient early enough)
ii. Increased risk without actual damage
1. When damage has not yet occurred, traditionally the dr. is
not liable.
b. Where loss of chance is found, only a portion of the full damages is
awarded
6. Scientific Evidence (Daubert, bendectin studies were really litigation not
science, expert opinion)
a. Old test: Frye test, evidence would be admissible if it was based on a
scientific technique generally accepted as reliable within the scientific
community.
b. NEW: Soundness of methodology testderived by scientific method
i. Is expert testimony scientific knowledge?
ii. Were findings derived by scientific method?
iii. Is work product Good science?
iv. Is it testable?
v. Was it published in a reputable journal?
vi. Is expert testimony relevant to the task at hand?
1. It either caused Ps injuries or more than doubled likelihood
of the defect (CA standard)
2. does it logically advance the argument (fit requirement)
3. Basically, this is bringing in a but for standard where
they have to prove 51% more chance
c. Supposed to assist trier in fact (jury or judge)
d. Litigation v. science
i. Was study independent of litigation or before litigation?
e. P must prove that the thing (Bendectin) more than doubled chances of
birth defects
i. Now, sometimes class actions are used instead if causation is less
7. Concurrent Causes/ Substantial or material element or factor (Anderson, fire
merged w/ unknown fire)
a. Either defendants negligence alone would have caused the injury
i. Neither a but for causewould end that the P would have no
recovery if no liability
ii. Just if substantial factor in causing the injury
b. Was each part of the result to this extent, if so, liability
c. Only applies when there are other causes
i. Ex: if fire set by two engines, both liable. If fire set by one engine
and the other fire set by unknown source, the engine is still liable.
d. Ends up in POLICY
i. HYPO: teenage driver, drives too fast where loose gravel, and goes
up in face of a walker by
1. Could be liable? Teenager, parents, county, pedestrian (all
but for)
2. Substantial factor: teenager, other people might be about
DETERRANCE of reckless behavior
a. Eliminates some minor cases (if fire really small)
8. Alternative liability or Double Fault
20

a. Both breached duty, even though only one caused harm (unknown which
one), both are liable
b. Where it cannot be proved which D caused harm, but both breached, both
liable (Summers, hunters shoot man)
c. Already know that they are negligentthis is different than res ipsa
d. Burden on Ds to figure out whose fault it was
9. Market Share/ Unknown Tortfeasor (Sindell, DES 6 companies out of 200)
a. Market share liability (hasnt really expanded beyond DES)
i. Each D liable for their share of the market
ii. More likely than not that P took medication manufactured by one
of the Ds
1. Ds who cannot meet the burden of proof that they were not
liable, then they must pay damages in the market share
(will be severally liable)
2. Might be more prudent to make a class action
iii. Policy
1. Cost spreading - Ds are better able to bear cost of injuries
2. Incentive for D to be more careful
3. Better access to information
4. D can prove not liable (she took green pill, D manufactured
red pill)
iv. Consider Market share in
1. Nation (decided in CA)
a. Who was throwing out the most risk, what
proportion to the public as a whole, and dividing up
2. state
3. community
4. pharmacy
b. Enterprise liability (Hall, entire blasting cap industry)
i. Acting in concert, safety regulations were industry wide
ii. All before the court, usually small industry
c. Joint and Several Liability
i. P can split up the 100% between the Ds however he wants
10. Liability for imposition of risk standardsevolvement of causation
a. Ybarra all not necessarily negligent, we dont know how many caused
harm, all liable
b. Summers one caused the harm, both liable
c. Sindell all negligent, only one caused the harm, all liable
i. Cant use substantial factor testpushing to impose liability where
it hadnt before
b. Causation in Law/ Proximate Cause (both Causation in Fact and Causation in Law MUST be
met) limits liability
ix. Basic Areas for Proximate Cause (development)
1. Direct cause v. remote cause (Polemis, dropped plank, struck spark, ignited
petroleum, destroyed ship)(Ryan, RR operates negligently, engine sets fire to
woodshed, and Ps house-remoteness)
a. Defendant is liable for all consequences of her negligent act, provided that
these consequences are not due to superseding intervening causes; no
matter how far-fetched or unforeseeable
b. Ex-post analysis: look after the fact if there is a direct line from the
negligence to the harm
21

c. Problem: could result in limitless liability

d. Policy for direct causation:
i. everyone should insure own property
ii. Has already been negligent, should bear the burden
e. HYPO: put grease on the bottom of the shoe, which led to a trip, drop and
fire?
i. Directness doesnt always tell you very much
2. Foreseeability test WM1, WM2
a. If the D should have anticipated a particular risk at the time he acted,
and he negligently failed to avert the risk, he would be liable if that
risk caused the Ps harm
b. Egg shell skull test: take victim as you find him (Bartolone)
i. Generally only for pre-existing, physical conditions after physical
injuries
ii. If negligently cause a foreseeable physical injury, then you are
liable for all consequences that flow from it, even if unforeseeable
(extended later to mental results from physical injuries)
c. If the result is foreseeable, despite the sequence of events, there is usually
is liability
i. Liable for foreseeable, not unforeseeable harm (WM1)
ii. Irrelevant that the harm occurred in an unusual manner, just of the
same general sort
iii. Ex-ante, look at whether this is something that you would expect
d. Language:
i. Duty language: didnt have a duty to because it was unforeseeable
ii. Causation language: regardless of whether there was negligence,
that breach of duty was not the proximate cause of the fire, because
the fire was not foreseeable (WM1)
3. Natural and probable consequences
a. Shouldnt be liable for an entirely different type of accident? Ct. dismisses
this distinction (Ryan)
4. Substantial factor
5. Scope of the risk (related to foreseeable)
a. Unforeseeable plaintiff? (Palsgraf)
i. Not be liable for a plaintiff that is unforeseeable (out of the zone)
b. What sort of risks are foreseeable, if injury is foreseeable within the scope
of the risk.
6. Intervening and superseding causes
x. Nearness in terms of
1. Physical space
2. Time
xi. Cause in fact is necessary predicate to inquiry into proximate cause
1. If no cause in fact, no need to inquire about proximate cause
xii. Description of cases:
1. (can approach them in terms of duty or negligence)
Ryan (fire in woodshed only extends to first house burned)
Palsgraf (fireworks on the railroad)
Wagon Mound I (oil ignites and burns wharf)
Wagon Mound II (oil ignites and burns other ships)
Polemis (Plank falls and hits petrol)
Bartolone (weight lifter)
22

xiii.

xiv.

xv.

xvi.

xvii.

Yun (Spare tire rescuer)

Least to most expansive:
1. Ryan 1st lot can recover
2. NY rule post-Ryan 1st adjacent lot to recover (problems, large lot v. small lot)
3. Palsgraf (Cardozo) foreseeable P w/in zone of danger can recover AND duty to
EVERYONE (negligence is relational, ask more specifically if there was
negligence with respect to the P), she was an unforeseeable P, outside the orbit of
danger=defines orbit of duty. Range of reasonable apprehension/ causation is
foreign to the case. (need breach to get to causation)
a. Andrews duty to EVERYONE, liability should be extended to all
proximate causes, ask whether there was an unreasonable risk posed.
Proximate cause: informed by notions of public policydoesnt choose
on a test. Was proximate cause of injury.
i. Duty: might take the issue partially away from the jury, (if duty)
more control.
4. WM 1 RF harm by fire to be liable (have to foresee type of harm will happen)
5. WM 2 RF harm and B<PL , more of a balancing test
6. Polemis Directness, if act is the direct result of the harm. BUT if foresee any
damage = liable for all damage (property);
7. Bartolone foresee any injury = liable for all injury (people); take P as you find
him (thin skull)
BASIC RULES to Proximate Cause
1. Must be type of harm that was reasonably anticipated
2. D liable for all injuries sustained, even if they are more serious than anticipated
(thin skull)
3. Foreseeable-injury-in-an-unforeseeable-manner still imposes liability on D (rat in
room w/flame)
4. Injury does not have to be likely or probable to be foreseeable (even if low risk,
doesnt matter)
Policy
1. Where is it good for society to draw the line?
a. Economic analysis: if an actor must pay for unforeseeable harms it will
affect the actors choices about activities that impose risk
b. Wont make the world safer or any more efficient, actor cannot plan
conduct for those things that he does not anticipate
Intervening causes (participator)
1. An act from a 3rd party that enters the chain of events
2. Foreseeable (Derdiarian, car breaks through excavation site and man is burned
foreseeable)
3. Does not break the chain
4. Results in liability for the 3rd party
5. Becomes a concurrent cause
a. Precise manner of event does not need to be anticipated
6. If you can foresee severe harm, you are liable for the severe harm, it doesnt
matter exactly how that harm occurs. If the IC is a foreseeable consequence of
not having a barrier there then you are liable even if you couldnt necessarily
foresee the way that harm would occur.
Superseding causes (cutting off)
1. An act from a 3rd party who breaks the chain of events
2. Breaks the chain of events
23

3. Criminal Acts/ intentional torts usually cuts off liability, unless the criminal act
was foreseeable or invited by the persons conduct (drop someone off at a risky
place)
4. Severs liability for the first parties
5. NO foreseeability
a. EX: intentional torts, acts of God, crimes,
6. Suicide is NOT necessarily a superseding cause (Fuller, doctor w/ seizures after
car wreck)
xviii. Joint and Several Liability
1. Joint: P chooses how to divide damages
2. Several: D is only liable for the % of harm he caused
a. W/o contribution: If P chooses to go 100% against one, the D cannot go
against other Ds
b. W/ contribution: If P chooses to go 100% against one, D can go against
other Ds
c. Limited Duty
xix. 2 types of duty
1. D has a relationship with the potential P
2. D has a relationship with the potential tortfeasor/perpetrator (Tarasoff)
xx. Failure to Act
1. No general duty to act
a. UNLESS there is a special relationship (Hegel v Langsam, university has
no duty to stop criminal association, drug user of student)
b. Moral vs. Legal standards, about whether there should be a moral duty to
rescue
i. Courts arent well-equipped to deal with this type of harm
ii. Good Samaritan statutes (protect those who come on
circumstances, protect from liability): take on risk, if end up
hurting, could be liable
1. Dont want to deter people from trying to help
2. Other legal systems say that you need to help if you can do
so in safety
xxi. Duty to Rescue
1. Rule no duty to rescue initially but if you begin rescue must carry it out in a
reasonable manner
a. Words alone dont create duty even if the victim relies on those words
i. Ex: you see someone drowning, say let me give you a hand, then
leave; no duty
b. Throwing a rope creates a duty; you have begun a rescue
2. Exceptions to the rule of no duty:
a. Special relationships
i. Harm is Foreseeable and D has ability to control the harm
1. Common carriers, innkeepers are generally liable for failure
to rescue
2. Husband/wife, temporary legal custodian/ child, jailor/
prisoner
b. Ds Act creates the Peril
i. If D injures someone through its negligence, D has a duty to rescue
24

ii. In control of harming agent (Ayres, child gets hand caught in store
escalator)
c. D has undertaken a rescue
i. You cannot leave a person in a worse position then you found him
ii. However, if you give your best effort, you wont be liable
d. Other exceptions
i. College does NOT have duty to rescue student (Hegel, 17 yr. old in
dorms, drugs)
ii. Wifes duty (JS and MS, sisters sexually abused by neighbor who
owned horses)
1. Spouse must have actual knowledge or special reason to
know of a likelihood her spouse is engaging in sexual
behavior
2. Against a particular person (cannot just be general)
3. Duty to take reasonable steps to prevent or warn
4. Problem it leaves the wife in a terrible position we want
to protect marital relationships but we also want to protect
children
iii. B<PL
iv. Balancing of Factors
1. Nature of underlying risk of harm, foreseeability, severity
2. Opportunity and ability to exercise care to prevent harm
3. Comparative interests and relationships between parties
4. Consideration of public policy and fairness, societal interest
xxii. Duty to Warn (Tarasoff, psycho stalker tells Dr. he will kill girl, then does)
1. D has a relationship with the potential tortfeasor/perpetrator (should have
CONTROL)
2. Doctor has a duty if:
a. Reasonably foreseeable
b. Serious threat of violence
c. Identifiable victim
3. Policy Problems:
a. How much is required on the duty to warn?
i. Call the victim?
ii. Call the police?
b. Doctor-patient privilege
i. Warn: violate patient confidentiality
ii. Not warn: keep patient confidentiality
iii. Reporting might make it likely that other psychos wont come get
help
1. Ex. HIV diagnosis, some courts say that there is a duty to
inform spouse, if the person will not tell
2. Public policy: more important to protect person from AIDS
than confidentiality of relationship
4. Rule for Clergy ripe for expansion
a. No duty to reveal child abuse when made in confession
b. Duty to turn over information gained by other means
5. Rule for Attorneys
a. Lawyer MAY turn over information he believes is necessary to
i. Prevent his client from committing a criminal act
ii. Establish a claim on behalf of the attorney
25

1. Lawyers arent experts on predicting violence

2. Sanctity of attorney-client privilege, for sake of legal
profession
b. In past, Duty extended only to serious physical harm; now includes serious
financial matters (Enron)
xxiii. Duty of Care to the Public (NIED, Negligent Infliction of Emotional Distress)
1. Progression
a. Initial physical injury (parasitic)
b. Initial physical Impact
c. Zone of danger (Daley)--at risk of physical injury by negligence
i. Need physical manifestation
d. Pure Bystander Cases(Thing)
i. No physical injury, no impact, no zone of danger
ii. Dillon Test (foreseeability with guidelines)
iii. Pure foreseeability
1. Cts require: objective manifestation, pure foreseeable,
Dillon test, NOW thing test
2. Duty
a. You have duty to avoid proximately causing anyone emotional distress
(Daley, flying car)
3. Physical Impact
i. Need to show that you had a physical response, like vomiting,
sleeplessness, as a result
ii. Policy floodgates, contain liability, which impact requirement
does
4. Zone of Danger
a. No longer need physical impact/contact
b. Need to have been in fear of danger yourself AND physical manifestation
c. (Daley, car flies of highway into power lines, shock in house)
i. REASONABLE PERSON response from injuryexcludes egg
shell rule (unless resulting from physical impact, not
hypersensitivity)
5. Bystander Rule
a. Dillon Rule (Overruled by Thing) (Sister in zone of danger, but mom is
not, ct. lets her recover)
i. NO zone of danger: Whether P was at the scene
1. 3 factors: proximity, visibility, and relationship
ii. Direct emotional impact from contemporaneous observance of the
impact
iii. Foreseeability: likelihood of emotional impact if these 3 factors are
there
b. Thing Rule (Thing, Mother is around the block, child is hit by car, no
recovery--has to see it happen) (NIED)
i. Closely related by blood or marriage
ii. Present at the scene at the time it occurs and aware of injury (cant
just hear about it)
iii. AND emotional reaction must be the sort beyond that which would
be anticipated by a disinterested witness and was not an abnormal
response to the circumstances
c. Problem precludes fiance from recovering
26

i. Attempt to limit expansiveness of Dillon but not go all the way

back to Amaya
Owners and Occupiers of Land
xxiv. Duty of Property Owners
1. Invitees
a. Definition
i. Permission to be on land for the benefit of the landowner
ii. Business relationship
iii. Does not require a purchase to be a customer (Campbell, fell
through trap door)
1. future expectation that he may buy is sufficient
b. Duty
i. More than owed to licenseeDUTY TO INSPECT (main
difference with licensee)
ii. Make premises reasonably safe
1. Requires you to REMOVE the dangers that are hidden,
unknown
iii. Posting a sign does not suffice
c. Exception If a hazard is natural as well as obvious (like snow, ice, etc.),
some jurisdictions hold that the invitor owes no duty to the invitee who
slips and falls
i. If go somewhere like the back room to get something, become a
licensee (entering into a premises for his own purpose) (Whelan)
2. Licensees (Barmore, mentally ill son stabs lodge member paying his dues)
a. Definition
i. Social guest, on property w/ permission for his own purposes
b. Duty
i. to warn of hidden, unknown dangers
ii. No need to warn of obvious dangers
iii. Licensee takes premise of the host as he finds them
iv. NO DUTY TO INSPECT
c. Includes tolerated trespasser who comes frequently enough that he
becomes a licensee
3. Trespassers (Sheehan, train runs over mans foot)
a. Definition
i. One who enters on land w/o permission
b. Undiscovered Trespasser
i. No Duty at all
ii. You still cannot set up spring-guns though
c. Discovered trespasser
i. Avoid harming by your active operations
1. Cannot injure by willful or wanton operations
ii. Does not require a particular knowledge of the trespasser
1. Where trespassers are common, like near a path, there is a
duty to be more careful
4. New Standard (Rowland, man uses bathroom, porcelain handle break, owner
knew about it but failed to warn)
a. Imposes duty of reasonable care to EVERYONE (California)
27

i. Distinctions, at least for invitee and licensee are abolished

ii. Policy: value of life and limb is not determined by a category
b. New Duty:
i. Act reasonable under the circumstances
ii. Take into account the foreseeability of the harm
iii. Factors affecting the status of the relationship
1. Closeness of injury and Ds acts
2. Moral blame attached to Ds conduct
3. Policy of preventing future harm
4. Prevalence and availability of insurance
5. Cost of insurance
c. Jurisdictions are about half and half, new standard is still a minority
d. Most jurisdictions have rejected collapsing trespassers into the other
categories
i. Still carve out special exceptions to trespassers
5. Children
a. Courts are reluctant to apply same limited-duty rules to child-trespassers
or licensees
b. Higher standard of care to children
i. Principally policy society has interest in protecting children from
harm
c. Child licensee
i. There may be obligation to warn of risk where no duty w/ regard to
an adult
d. Attractive Nuisance Doctrine
i. When a landlord sets a temptation in front of kids that he has
reason to believe will lead them to danger, he must use ordinary
care to protect them from harm
1. Only for artificial structures, not natural
2. Common hazards dont count (a canal, river, etc.)
e. Restatement Artificial Conditions Highly Dangerous to Trespassing
Children
i. Elements
1. Likelihood of trespass: place where condition exists is one
owner knows children likely to pass
2. Danger: owner knows or should know condition is kind w/
unreasonable risk of death or serious injury
3. Children ignorant of risk: the children, because of youth,
do not discover condition or realize risk of being in the area
made dangerous by it
4. Utility: utility of maintaining risk in safe state and burden
of eliminating the danger are slight compared to the risk
involved
5. Lack of reasonable care: owner fails to exercise
reasonable care to eliminate the danger or protect the
children
ii. NOT essential child be lured by thing that injures BUT P has to
show there was a condition that would cause owner to know it was
likely children would be there
1. if children did not trespass before and owner had no reason
to think they would, recovery may be denied.
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f. How Courts Go with Children

i. Most states follow the restatement; others apply the attractive
nuisance doctrine, and others follow the Rowland case (where
there is just a reasonable care to everyone)
6. Scope of Invitation
a. Status can change depending on what you are doing (Whelan, customer
goes to back room)
b. If you exceed the scope of the invitation, you will probably be a trespasser
c. You can cease to be a licensee or invitee after reasonable time to
accomplish your purpose
AFFIRMATIVE DEFENSES TO NEGLIGENCE
1. General
a. Burden and proof of pleading is on D
i. Privilege negates an element of the tort; you did not commit the tort
ii. Affirmative Defense says you were negligent, but you have a good excuse
b. Prima Facie Case
i. If pleading, must plead
1. DBCH
c. Affirmative Defense
i. Must plead
1. Comparative negligence
d. Requires DBCH
2. Assumption of the risk OR
3. Immunity
ii. If D does not plead one of the above at the proper spot, it may be waived
2. Contributory Negligence (Minority)
a. Affirmative Defense (Butterfield, rider riding too fast at dark)
b. Strict CN (minority)
i. Complete bar to recovery
1. Even if only 1% contributory, no recovery
ii. Cardozos Hypothetical Argument (under Palsgraff)
1. Other persons negligence is not foreseeable
2. Ps negligence was a superseding cause, would have completely cut off Ds
liability
ii. HYPO: (3rd parties effected, not barred by contributory negligence)
1. Pole in road, horse rider goes too fast, falls and destroys flower bed.
a. But for cause: both pole guy and horse rider (can have more than one
but for, and proximate cause)
b. Proximate cause: probably for both
c. Flower bed ownernot barred by contributory negligent
iii. Rationale for contributory negligence (not very persuasive)
1. P needs clean hands
2. Punish wrongdoer
c. Relaxed CN (majority)
i. If Ps action was a substantial factor of the negligence, no recovery
d. Other ways to soften the rule
i. Leave the question to the jury
ii. Limit causation
iii. Burden of proof on D
29

a. Last clear chance (Davies, Donkey tied up in road)

i. If D has opportunity to avoid the accident after the opportunity is no longer available
to P, then D is the one who should bear the loss.
a. Contributory negligence doesnt apply here
b. D is particularly blameworthy places him as a superseding cause
c. Last wrongdoer, but doesnt always attribute bigger negligence
2. 2 categories
a. Helpless Plaintiffs
i. Conscious D: last clear chance (railroad engineer, sees person on
railroad)
ii. Inattentive D: courts are split on LCC (engineer is distracted)
b. Inattentive Plaintiffs
i. Conscious D: LCC (gives P a break here)
ii. Inattentive D: no LCC
3. Comparative Negligence (Majority)
a. Compare Ps fault w/ Ds fault and reduce Ps damages according to his measure of fault
(adopted by 46 states)
i. Liability assigned proportionally to the negligence of P and D
b. As long as Ps negligence is less than Ds negligence, P may recover (49%)
c. Two Forms:
i. Pure damages allocated based on % of each party
1. P can recover 90% if he was 10% negligent or P can recover 10% even if he was
90% negligent
2. Will not be barred from negligence
a. Problem: assigning numbers, arbitrary (who was more negligent)
ii. Modified
1. not as great as --49% rule (UT) (McIntyre, drunk driving, want compatibility
with fault based)
a. P recovers minus the % he was negligent if he was less than 50%
negligent
b. P is barred if 50% or greaterPs negligence must be less than the Ds
a. Rationale:
i. P should be less culpable than the D
2. not greater than--50% rule (most jurisdictions)
a. If Ps negligence is 50%, then they get 50%, not bar to recover (51%
would be barred)
b. P will recover minus the % he was negligent if 50% negligent or less
c. Ps negligence cannot be greater than the Ps. (can be the same)
a. HYPO: hand caught in printing press, damages of 500,000. P and
D are both 50% responsible
i. Pure: 50%: 250,000
ii. Modified (50%)- 250,000
1. 49%--would recover nothing
iii. Slight/Gross: nothing
iii. Slight/Gross
1. P can only recover if her negligence was only a slight contributor (1 state)
2. Didnt want to get into assignment of percentages
3. If slight negligence, then not barred
iv. Jury determines the % because it is a question of Fact and juries determine questions of
FACT
30

d. Multiple Ds (just need to know that these are questions, and arguments to support one or the
other)
i. Joint and Several liability
1. Even though harm may be apportioned to all Ds, P may recover ALL from just
one D
ii. Several liability
1. If harm is apportioned, P can only recover the % from each D that was assigned to
him
2. Risk of an insolvent or unknown D falls on P
3. Utah is Several liability unless the other party is immune or unknown
iii. If there are multiple Ds, all Ds negligence may be combined and as long as Ps
negligence < all Ds, P may recover (aggregate Ds fault)
iv. DO NOT aggregate Ps fault
1. HYPO: P is 30% at fault, D is 20% at fault, 2 nonparties are 25% each
i. Point of disagreement among courts, if collective fault? Lots of
issues
v. NOT a defense to an intentional tort
4. Assumption of the Risk complete bar to recovery
a. Express (Seignur, lady w/ bad back injured during fitness evaluation at gym)
i. Two main issues to determine whether P expressly assumed the risk:
1. The action was voluntary
2. Not contrary to public policy
ii. Exculpatory Clauses might be void IF:
1. Void language: is the language of the clause clear, specific, and unambiguous?
2. Grossly unequal bargaining power
a. Is this an adhesion contract? one which she signs because she has no
choice if she wants to use the facilities?
b. Do other options exist?
c. Is it an essential service? (can P survive w/o it? Gym does not count here,
but hospitals, schools, daycare do)
3. Gross negligence, recklessness, maybe even intentional
4. Public interest factors to consider (courts consider totality of the circumstances,
no determinative factors)
a. Businesses generally thought suitable for public regulation
b. Essential services, of great necessity to the public
c. Party holds himself out as willing to perform this service for any member
of the public who seeks it, or at least for any member coming within
certain established standards
d. Bargaining power
e. As a result of the transaction, the person or property of the purchaser is
placed under the control of the seller, subject to the risk of carelessness by
the seller or his agents
5. Legislation does a statute specifically say that the exculpatory clause is void?
iii. Exception: No assumption of risk where P is a member of a statutorily protected class
1. Where the Ds negligence consists of violation of a statute designed for the
protection of a certain class of persons, a P who is a member of that class is
deemed legally incapable of assuming the risk either expressly or by
implication.
iv. Exculpatory Clauses might not APPLY if the risk that injured P was outside the scope of
the unambiguous terms of the agreement
b. Implied (Rush, lady falls through floor of privy)
31

i. Requirements:
1. Actual knowledge of the risk (subjective standard, you need to know)
2. Appreciate the magnitude of the risk
3. Voluntarily assume the risk
ii. You cant consent if you have no other choice
c. Primary Assumption of the risk
i. Occurs when P accepts the risk before the allegedly negligent event occurs/ D had no
duty in the first place assumption of risk
1. Train example obviously you will be jostled against people in crowded train
(Blackburn says this will be analyzed under duty)
2. Baseball, or skiing example, assume the risk before the negligence has come to
pass (DUTY now)
d. Secondary Assumption of the risk
i. P assumes the risk after becoming aware of Ds negligence/ D has a duty of care
1. Reasonable (pure or strict): you reasonably assumed the risk after becoming
aware NO assumption of risk
a. POLICY: These are things that public policy wants to encourage, like a
person that runs into a burning building to save a child. That person has
NOT assumed the risk and should be allowed to recover.
2. Unreasonable (qualified): you should not reasonably have assumed (analyzed
under comparative or contributory negligence) assumption of risk
a. POLICY: things that public policy does NOT want to encourage, like
running into a burning building to save a hat. That person will not be able
to recover.
e. Court says DO AWAY W/ ASSUMPTION OF THE RISK and just use Comparative Negligence
(Blackburn, FL court eliminates Assumption of the Risk, merges into comparative negligence)
1. In comparative negligence, courts perform a case-by-case analysis of
reasonableness already, essentially they perform the same analysis that you would
in an implied assumption analysis of reasonableness
2. Some jurisdictions have moved away from it, others have kept assumption of the
risk
ii. HYPO: driving up the canyon, try to pas s on wrong side of the road, and other person
was speeding. Did you assume the risk?
1. Actual knowledge: that there could be accident, is this enough actual knowledge?
2. Ct. would usually say that there is a general assumption of risk, but not the
specific accident, and this is too general
iii. HYPO: attend a ball game, get hit by a foul ball. Assumption of risk?
1. Probably. No nets out, should be aware, generally an assumption of risk.
5. Sovereign Immunity
a. Definition
i. Privileges attach because of certain circumstances
1. Status of the defendant
2. Relationship with the P: spousal immunity, parent-child immunity, charitable
b. Generally not saying that they werent wrong or negligent, just that they are immune.
i. Common law says - Sovereign immunity immune from all suits
1. Stems from the king can do no wrong
b. FTCA:
i. Discretionary v. Ministerial
1. Discretionary Function Exception (Deuser, guy grabbing womens buttocks in
St. Louis)
i. Allows govt. employee to make decisions based on circumstances
32

ii. If not governed by policy then it is probably discretionary

1. EX: Deuser, policy on how to make arrest, no policy on
how to terminate arrest (termination is discretionary)
iii. EVEN IF it was a REALLY BAD decision, if discretionary then
govt. is immune
iv. Two part test
1. Were the actions a matter of choice or matter of procedure?
2. Was the judgment the kind the discretionary act intends to
shield?
3. Consider social, political, and economic factors
a. Ministerial
i. An action prescribed by the government; you are told to do it
ii. Government is not immune
1. Congress can also waive immunity in other areas
a. EXAM: look at if one of the parties is associated with the government, police officer
c. State sovereign immunity
i. 11th amendment makes states immune in federal court
1. Some have waived tort immunity
2. Some have abrogated sovereign immunity, but immunity for core
governmental functions
i. Decided on a state-by-state basis
ii. Applies to State Agencies
1. Prisons, hospitals, educational institutions, highway authorities
iii. General principles: POLICE POWER
1. No duty to protect the general public (Riss, stalker in NJ where lye was thrown in
face)
2. Assuming protection for specific individuals, govt. NOT immune (Delong, 911
call)
a. Reliance interest? Duty to undertake to protect the public?
b. HYPO: police stops a drunk driver, let him go, is the city liable?
i. Town could be held liable
3. Police DO have a duty if they put a person in a position and expose them, then fail
to give protection
a. When a relationship is created between police and an individual which
gives rise to a special duty, the municipality loses its governmental
immunity and liability may result
b. Particularly:
i. Informers
ii. Undercover agents
iii. Person under court order protection
iv. School children whom municipality has provided crossing guards
c. Reliance and affirmative representation
iv. Policy arguments
1. Floodgates
2. Limited Resourcesprotects state coffers
3. Courts cant enforce, dont want them to look powerless
4. Courts unwilling to second-guess police operations
d. Municipalities (City and County)
i. Have corporate feelcourts have generally recognized distinction between
government and propriety function
ii. Most states have abolished municipal immunity
33

i. Shielded from liability when

1. applying judicial or legislative functions
2. Performing discretionary functions
a. An individuals own choices while in employ of the govt.
ii. Proprietary (private-like, banks, day cares) NO IMMUNITY
1. More liability for proprietary functionssomething that private factors would do
2. Revenue making, like gas or water utilities, airports, garages
iii. Governmental function actually required to operate govt.--IMMUNITY
1. Police and fire departments, school systems, health inspectors
iv. Policy: Government is always short of funds
1. Dont want to impinge on decisions made by the executive branch about how to
spend that money
a. HYPO: city transit bus driving recklessly, if this is protected from
sovereign immunity
i. Probably not. Performing a proprietary function, basic duty to
drive safely
ii. Concerns
1. Opening floodgates to sue the govt court held this is unlikely to happen though
1. Changing the rules (no immunity for Municipality) will encourage socially
responsible behavior because there is more potential for the govt. to be liable
Harm and Damages (want to make wholeall done in money)
d. First: P must prove by a preponderance of evidence that she has suffered, or will suffer, the
losses for which she claims in damages
e. Single recovery: lump sum is awarded to the P for past and future losses
i. Advantages: case does not go on forever, closure in life, incentive to stay sick or injured
disappears when trial is over (would be more sympathetic to jury), economic planning
can continue without uncertainty, economic efficiency in litigation
ii. Disadvantages: less accuracy in measuring damages, needs to be a good investor or will
not have money in the future that she needs.
f. Nominal Damages
i. Small sum awarded to P to vindicate rights, make judgment available as a matter of
record in order to prevent the D from acquiring prescriptive rights
ii. NOT for negligence
iii. Amount is unimportant as long as it is trivial ($1)
g. Compensatory Damages
i. Designed to make P whole again return him to position he was in before injury (lump
sum)
ii. Two Types
1. General
a. No specific numbers (pain and suffering, humiliation, fright and shock,
anxiety, unable to lead ones previous life)
2. Special
a. Attach specific numbers (medical bills)
iii. Elements to determine how much P should get
1. Past and Future physical and Mental Pain
2. Past and future medical expenses
3. Loss of wages/earnings
4. Permanent disfigurement/disability
iv. FUTURE MONEY? (Anderson judge analyzes jury damages)
1. How do you judge future money: Discount Rate (discount to present value)
34

v.

vi.

vii.

viii.

a. Like to reduce the predicted damages to the present value

i. Present value
ii. Federal Income Tax
1. Most damages that a plaintiff recovers are not taxable in a
federal system on personal injuryEXCEPT punitive
damages
2. Why?
a. Lump sum: highest tax rate, complicated analysis as
to when the sum arrives
b. Unpredictability of tax system
c. Tort system is to compensate, make whole
iii. Interest
1. Starts when the judgment is entered
2. Incentive for delay for the P
iv. Inflation vs. Market Rate of Return
1. Supreme court says that these will all counterbalance and
one will offset the other
2. Some jurisdictions are following this lack of a standard
2. Criticism do monetary damages really put P back in the position they were
before the injury?
Maximum Amount recovery rules (Anderson, young girl severely burned by Sears
appliance, gets $2Mfor remittitur)
1. Limited judicial review
a. Court reviews and asks what is the maximum amount that could be
awarded (low level review)
i. if more then the amount of punitive damages awarded, then the
award will stand
ii. if less than the amount awarded, then the amount will be lowered
b. Excessive if:
i. It falls outside the range of fair or reasonable compensation OR
ii. Results from passion or prejudice OR
iii. It is so large that it shocks the judicial conscience
Remittitur
1. P sues and D wins. Jury awards damages to P. D asks for R to lower the
amount.
2. Judge will look at maximum recovery
a. If too high, judge will offer new amount or give a new trial
b. It amount is okay, judge will deny remittitur
Addittur
1. P sues D and doesnt get enough from jury, P asks for A
2. Judge will raise the damages to the lowest amount he thinks the jury could award
3. P can accept or ask for a new trial
a. In federal system, (not really state courts) addittur is not allowed. Only
option is to ask for a new trial. From supreme courts judgment about the
7th Amendment.
Collateral Source Rule
1. When determining how much money the jury can give you, in most jurisdictions
the judge will not tell the jury that some of the expenses have been paid through
insurance
2. ISSUE: of optimal deterrence v. occasional overcompensation
i. Prudence: Dont want to deter from buying insurance
35

ii. Double recovery: doesnt generally happen

iii. Inefficient in terms of deterrence if they know that they injure
people that tend to be insured
b. Most insurance agencies have subrogation clauses, will assume their part
of the litigation
ix. Mitigation of damages
1. P has a general duty to mitigate damages (seek medical care, etc)
2. Generally applies after the accident
a. HYPO: other party not wearing a seatbelt and you hit them (want to give
P incentive to be careful)mitigation doesnt apply here, generally
applies to things after accidents. Generally, courts ask to decrease damages
to what you would have suffered have you mitigated (or if you would have
worn you seatbelt)
x. Damage to Property (compensatory damages)
1. Valuing property: courts approach in valuing personal property (pictures, difficult
to quantify)
a. Where something has sentimental value, the jury can take this into account
the special value of a family heirloom
b. Jury can try to assign a value for these things
xi. Policy
1. How do you award money for loss, pain, and suffering?
a. Should be given because:
i. Contingency fee basis: There are attorney fees that are taken out
ii. Tort law is primarily intended to make a person whole
iii. Deterrence
b. Disadvantages
i. Cant insure with pain and suffering insurance
ii. Encourages litigation
iii. Unpredictable jury awardscould lead to overdeterrence of
companies, taking inefficient precautions
iv. Class actions: attorneys come out on top
2. How damages fall short:
a. Money damages arent enough for pain and suffering (this is all the jury
has available)
b. NO Damages for family members (parents and siblings); although a
spouse has a mechanism for recovery
c. NO damages for children of parents that are injured (loss of parenting, loss
of affection)most jurisdictions, no way for children to recover
i. UNLESS the child witnessed the incident and can recover on the
bystander rule
3. Should damages vary depending on the money making ability?
a. Ex: young child injured and can never work
b. Homemaker analysis
h. Punitive Damages
i. Additional sum, over and above compensatory damages awarded to:
1. Punish
2. Deter
3. Make an example to prevent others from committing tortious conduct
ii. 3 Guideposts (State Farm, Gore, jury awarded $145M in punitive damage)
1. degree of reprehensibility of Ds conduct
36

2. disparity between the actual or potential harm suffered by P (compensatory

damages) and the punitive damage award (S Ct. says it should be in the single
digits)
a. 4 to 1 is acceptable as well, not 145 to 1
b. Smaller compensatory damages, might be greater ratio for punitive
damages
3. difference between the punitive damages awarded by jury and the civil penalties
authorized or imposed in comparable cases (compare cases)
iii. You can only punish for ACTUAL damage that happened to P (even if D did bad stuff
around the nation)
1. Cannot tell the earning potential of the companies until punitive damages trial
(not before)
2. PROBLEM: windfall judgments?
a. State statutes can set caps on punitive damages, or ratio cap
b. Might need clear and convincing evidence
c. Funds might be placed in different hands
d. First plaintiff might be the only person who could collect in punitive
damages
iv. For Punitive Damages in Negligence cases:
1. Need to show reckless or willful, wanton behavior
2. Must be disregarding what he knew to be a substantial risk to P or others

VICARIOUS LIABILITY
1. Respondeat Superior
a. Liability based on relationship of the parties
b. Process to look for w/ negligent torts
i. First: Employee needs to be negligent (employer does not need to be negligent)
ii. Is the person an employee or an independent contractor? (Murrell, paper delivery and
broken glass)
1. Independent Contractor: RS does not apply
a. Supervision/ control
b. Extent of control the master is authorized to exercise over details of work
(most important)
c. Whether actor is engaged in distinct business or operation (different than
business)
d. Whether the kind of work actor is doing is customarily performed with
employers supervision
e. Who supplies the tools and workplace
f. Length of time of employment (longer indicates more employee)
g. How paid
h. Whether the task is part of the employers business
i. Parties own beliefs about the nature of the relationship
2. Employee: RS does apply
a. One who follows procedure
3. Exceptions to non-liability for IC: (in Restatement of Agency)
37

a. Hire someone to do something that is inherently dangerous, still liable

under RS
b. Illegal activity, liable
c. Non-delegable duty (statute or regulation that requires you to do
something...i.e. safe workplace)
i. HYPO: statute requiring you to drive a safe car, take car in to
replace breaks, they dont fix them, then get into an accident.
Whos liable for the accident?
1. You are liableit is not a delegable duty to drive a safe car.
Incentive to choose a really good break companies to fix
breaks.
ii. HYPO: bishop who get a report of child abuse. Doesnt know
what to do, thinks he should keep confidences (doesnt know about
reporting law). Something bad happens to the children. Sue the
church.
1. Bishop more like an employee. Church would say that they
did everything to ensure that they could. Would likely be
liable.
4. Rationale for divide:
a. Independent contractor has his own enterprise to internalize costs
(insurance within own realm) what enterprise we are talking about
b. Independent contractors are more likely to be financially secure agents
themselves, can generally recover from them
i. Think there should be liability on the employers: would make
employers be more picky about who they contract with, try to find
people who are financially secure (so that they could indemnify).
iii. Employee acting w/in the scope of his employment?
1. Coming and going rule: Commuting is NOT w/in scope of employment (control,
risk)
a. Exceptions:
i. Getting to a meeting FOR employment
ii. Employee endangers others w/ risks related to or arising from work
1. Foreseeability? (Bussard, pesticide at work makes woman
light-headed)
2. Slight deviation rule: was employee on a frolic or a detour? (OShea, dropping
off tickets, hits car)
a. Detour Employer liability
b. Frolic No employer liability
c. Consider
i. Act employee is employed to perform
ii. Occurs substantially within the authorized time and space limits of
the job
iii. Motive: actuated at least is some small part by desire to benefit
employer
iv. Intentional torts: if force is intentionally used by the servant, not
unforeseeable
iv. Intentional Torts employer liable IF:
1. Not entirely unforeseeable
2. The tort was w/in the scope of employment/reasonably connected to employment
OR
38

3. If they authorized or ratified the act, were reckless in employing or retaining the
employee, or the agent was in a managerial capacity and acting w/in the scope of
his employment
v. Employer CANNOT insulate himself by imposing strict rules or safety training
1. HYPO: employee of a gun seller, who was told to never sell to minors, did so.
Employer liable?
a. Yes. Employer cannot insulate himself with rules or instruction. Still
within the scope of employment.
2. HYPO: employee gets mad during shift, and hits someone. Employer liable?
c. Policy for Respondeat Superior
i. Control: A business should absorb the costs its undertakings impose on another
(Bussard, woman getting sick)
ii. Type of strict liability
iii. Employers need incentive to avoid harmpresumption of control over their employees
1. Rationale
a. Belief that there is something that the employer could have done better,
and this is hard to discover.
iv. Enterprise liability theory
1. Costs of doing business on the business
2. Protection for employees
3. Protection for victims (can recover more $, deeper pockets)
a. Products reflect the loss of society: employer buys insurance, then the
company raises prices, this is the real societal cost of making the product
b. Put costs on a person who could better spread the loss
v. Indemnification: employer can go after employee afterwards
d. Punitive Damages?
i. Limited on employers
ii. Can recover punitive damages only if the employer authorized or ratified (praised) the act
iii. Malice, recklessness, fraud indicating that the employer is more involved
e. HYPO: lawyer talking on the phone and got in an accident
i. Scope of employment? Dont separate personal and business.
STRICT LIABILITY
1. Generally
a. Liability w/o fault even w/o fault you still have to pay
b. Does not mean Absolute Liability - There are still numerous defenses
c. Strict liability takes care of DB still must prove CH
d. Court order D to pay damages, although he neither negligently nor intentionally acted
e. Policy Problems:
i. Does it really work?
1. If even if you spend money to safeguard but something bad happens and you are
strictly liable, why would you ever spend money to safeguard?
f. Big Issue is not take care but rather weigh how much you want to participate
2. Two Areas
a. Animals
i. Trespassing Animals
1. Owner of animal likely to roam and do damage is strictly liable for trespass
(cows)
ii. Wild Animals
1. Strict liability
2. Just because it is kept as a pet does not mean it is domesticated (ferrets)
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iii. Domestic Animals

1. One Bite Rule
a. Owner liable only if he knew or had reason to know his animal had
vicious propensities
2. Do analysis of how much the future harm would cost v. how much safeguarding
that harm costs
b. Ultra-hazardous/Abnormally Dangerous activities
i. Natural v. Non-natural use of land (Rylands, reservoir and mines)
1. If you use your land in a natural way=not liable, if you use your land in an nonnatural way=liable (J.Cairns)
a. Non-natural use of the land: manmade, or artificial, AND about what the
ordinary person uses the land for (non-conforming use?)
i. Not efficient to make strict liability for something that is expected,
what the land is used for
ii. Reciprocal risks, both impose the same risks (ex-ante risk, what
would they have agreed to beforehand?)
2. Normal or traditional would probably have been better words than natural
ii. If you bring something onto your land and it escapes, you are strictly liable (J.
Blackburn)
1. When the case comes to the US, it comes w/ the Blackburn standard you act at
your own peril
2. Exception:
a. Acts of God which owner has no reason to anticipate = not liable (Golden,
dam overflows because of hurricane)
iii. Strict liability is a question of law not a question for the jury
iv. Restatement Factors for determining whether it is an abnormally dangerous: JUDGES
decide here, as a matter of law (Miller, shooting range)
1. High degree of risk?
2. Harm that results will be great?
3. Inability to eliminate the risk by exercising reasonable care? first 3 factors go to
residual harm
4. Is the activity a matter of common usage? reciprocity of risk, society as a
whole has accepted
5. Inappropriateness of the activity to the location risk of residual harm
increases
6. Is the value to the community outweighed by dangerous attributes? activity
level, how much?
v. Ultra-hazardousness is about activities, not about substances (Indiana Harbor Belt RR,
spilled chemicals)
1. Posner thinks that negligence is the default for our legal system, SL is exception
2. Should focus on reasonable care, if it can be deterred, that is all we should do,
start at 3.
a. SL would lead to:
i. Decreasing production of chemical
ii. Stop shipment
iii. Rerouting transportation of chemical to rural areas, expensive
iv. Worried about over-deterring productive things
b. Probably not enough, should just raise conduct to due careBUT
shouldnt the chemical company be doing research to find a safer
alternative? Should shift residual costs. (make companies to think about
the most optimum way to do something)
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c. Rationale
i. Economic efficiency
1. When an activity might injure others, we want to encourage the right amount of
it
a. This is for strict liability, not negligence.
b. Presumption that people can make an accurate assessment of due care
i. Problem with negligence scheme: underinvestment, discount
harm percentage --usually only think about themselves, not
societal harm
ii. Problem with SL: tend to take precautions that arent rational,
since the notion of getting sued is really great, take inefficient
precautions
1. Fairness, reciprocity of risk, overdeterrance of conduct,
etc.
2. Spread losses
3. People will only engage in the right or economically efficient amount of the
activity
a. Incentive System
i. Posners opinion (American Cyanide): want to give incentives to
be safe in building use the Learned Hand theory B>PL standard in
determining
1. Want the right standard of care
2. Might take too many precautions from an efficiency
standard
b. Strict liability and negligent standards of care are the same.
i. Does NOT affect the activity levelwho do we distribute the
harm to ?
1. Enterprise liability: residual costslook at if he should
continue in the activity
ii. BUT does not take into account activity, with strict liability, the
farmer has an incentive to think about his activity level (or where
he is engaging in the activity) doesnt enter into negligence
analysis.
c. 2 axis:
i. How carefully we engage in an activity, and how often we engage
in the act
4. FARMER HYPO:
a. Farmer and a neighbor, raises 10 cattle, 10 escapes per year and 1000
dollars of damage. Could build a fence for 7500 dollars. If you build, then
only 2 cattle escape per year. (PL is the avoided loss)
i. Efficient to build fence?
1. BPL analysis: expected loss per year would be 10,000 and
the fence precaution would be 9500would have avoided
8,000 of loss.
2. 15,000 dollar fence? Should he build it? NO!
a. Want to spend money on precautions so long as one
dollar avoids one dollar of loss (marginal costs)
b. 7500 dollars extra would be used to build the 15000
fence, and it gets you 2,000 dollars worth of
avoidance of harm.
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i. Negligence: not liable, wouldnt be

reasonable to spend an extra 7500 dollars to
avoid 2,000
ii. Strict liability: no liable.
3. 7500 dollar fence? SHOULD buy it.
a. avoids 8000 of loss: efficient to take this precaution,
courts would say that the farmer was negligent if he
didnt take this precaution, SAME under Strict
Liability
3. Limitations to Strict Liability
a. Harm has to be kind that makes the thing dangerous--DISPOSITIVE (Foster, mink kittens killed
from vibrations)
b. Acts of God are not foreseeable, no SLscope of the risk, most courts hold that anything that is
so unforeseeable, company will not be strictly liable (Golden v. Amory, hurricane that hits,
overflows)
c. Assumption of Risk (Sandy v. Bushey, didnt assume the risk when entered the pasture and got
kicked by horse)
i. Want Ps to take socially optimal care
PRODUCTS LIABILITY
1. Strict Products Liability
a. Definition: the liability of the manufacturer, seller, or other supplier of chattels, to one with
whom he is not in privity of contract, who suffers physical harm caused by the chattel.
b. Old rule
i. Privity in contract (Winterbottom, mail coach driver hurt but not party to contract so no
recovery)
ii. Nonfeasance v. Misfeasance was the old rule/ privity of K is necessary to sue for
negligence
1. Misfeasance: negligently perform, fail in performance of K (privity of K is
abandoned as a limitation)
2. Nonfeasance: dont perform at all (remedy is in contract)
c. Expansion (MacPherson, car wheel made of wood)
i. Manufacturer may be held liable, not just to those in privity of contract
ii. Recovery extends to:
1. Foreseeablilitygrounded in tort law, not in contract Negligence
a. Economic way o
2. Car Ex: driver, passenger, and even person on sidewalk likely foreseeable; robber
stealing car is not
iii. Rule: If nature of a thing such that there is reasonable certainty of loss of life or limb
when negligently made, it is a thing of danger
1. Requires knowledge of danger be probable, not just possible
d. Reasons for imposing Strict liability (coke product hypo)
i. Expertise/ corporation (best information, safety)
ii. Not abnormally dangerous/dangerous
iii. Spread loss, insuranceto everyone who benefits from the product (reflects true societal
cost)
e. Limited warranty
i. It is not fair to limit a warranty in a way that harms a consumer (Henningson)
f. Strict Products liability
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i. One who sells any product in a defective condition unreasonably dangerous to consumers
or user is subject to liability of physical harm IF:
1. engaged in the business of selling that product
2. reaches consumer w/o substantial change in the condition in which it was sold
ii. No privity of contract is necessary
2. Warranties
a. Express
i. Affirmation of fact about a product (must be specific)no longer have to be in privity of
contract
1. Initial limitations
a. Privity of K
b. Reliance
c. Specificitycant be a vague warranty
ii. Strict liability (relatively) NOT negligence analysis
1. Even if there was no way to live up to representation, relatively strict liability
that grows out of contractual remedies (P is getting the best of both worlds) (Ford
Motor, unbreakable windshield is broken)
2. In terms of the actual building of the windshield, hard to show that they were
negligent
iii. Specific warranty
1. Promise of safety must be a specific one in order to constitute a warranty.
2. Something labeled safe is a warrantyskin lotion, wheels
iv. Rationale for No Privity of Contract:
1. Dont want to put manufacturers in a position where they make a representation,
but cant be sued because of a lack of privity of contract.
v. Reliance
1. If a person relied on a statement, the manufacturer is subject to liability for
physical harm to a consumer even if it is not made fraudulently and the consumer
has no privity of contract.
a. HYPO: there are no insurance brochures indicating a warranty?
i. Baxter Rule: have to have relied and seen warranty, otherwise no
recovery
ii. Modern trend: looking at the objective side of test, if a reasonable
person would rely on itBaxter rule is limited today in terms of
reliance.
b. HYPO: saves your life once, a warranty. Specific enough for a
warranty?
i. Probably not
b. Implied
i. Warranty of Merchantability
1. Fit for intended use, that you are buying what you think it is, and will do what it
says it will
2. Hennigson, driving a car and something went wrong with the wheel, got badly
injured
a. Solution: the old cases were never about contract, but always grounded in
strict liability and tortsno notice, privity
ii. Judge Traynors Approach: strict liability, because the costs of the injuries should be
absorbed by manufacturerthis is the major approach today
1. Manufacturer gets profit
2. Real societal costs
iii. Rationale for manufacturer strict liability
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1.
2.
3.
4.
5.
6.
7.

Too difficult to prove negligence against manufacturer

Incentive to make product safe
So that manufactures stand behind their products
Better position to protect against harm
Time consuming process, expensive and wasteful
Seller is representing to the public that the product is fit for use
Costs should be placed on a party best able to determine the means to prevent an
accident

3. Defenses
a. Comparative negligence
i. Recovery limited or possibly barred if comparatively negligent even in strict products
liability (Daly, drunk driver car accident defective door)
ii. Strict liability is not absolute liability
1. Manufacturer not responsible for injury that results from an unforeseeable use of
its product
iii. Manufacturer still held strictly liable for the portion of the damage not due to P
b. Assumption of the risk
i. Does not necessarily bar recovery
c. Misuse
i. Not a bar to recovery if it was foreseeable misuse and the product was defective (Ford
Motor Co. v. Matthew, starting tractor in gear while standing was foreseeable)
SLIPPERY SLOPE ARGUMENTS:
Palsgraf, Cardozo opinion (unforeseeable plaintiffs)
Pure economic loss
Duty of Carenegligent infliction of emotional distress
Privity of Contract (early on in products liability)
THEORIES OF JUSTICE
1. Consequentialism:
a. Evaluate the rightness or wrongness of an act based on its consequenceswhether it further the
good, net societal utility
b. Utilitarianism:
i. basically the idea that acts that further net societal activity are moral, those that decrease
net societal utility are wrong.
ii. Utility=pleasure, non-utility=pain
iii. Produce the most happiness for the most amount of people. (law and economic theory, to
maximize net wealth)
1. Critique:
a. Tyranny by the majority (can justify all sort of things, slavery)
b. Sacrifice individual rights for net societal benefits
2. Deontological moral duty
a. Theories that base rightness and wrongness based on other things than the consequences
i. Kant: lie is always wrongmoral duty not to lie, consequences are not determinative
3. Tort law for the Individual GoodArticle
a. Veil of ignorance
i. Not knowing what is going to happen to you in life
1. John Rawlsdeontological: how to ground moral theorynotions of social
contract
ii. What would we have agreed to under the veil of ignorance?
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1. Liberty: people would agree that they would have the most extensive freedom
consistent with like liberty with other people
b. Article Assumes: what a person would do behind a veil of ignorance would be to maximize own
well-being
i. Best you can do is maximize average well-being by:
1. Optimal precautions: that would eliminate unreasonable risk (cost incurring
greater than the cost to avoid) end in a consequentialist theory
a. Legal system should pour resources into precautions against reasonable
risks
2. Optimal Insurance: small fixed costs are not worth as much as the possibility of
this large loss that would cut deeply
3. Redistribution
ii. But even once you define these goals, ask whether tort law would do this better than a
legislative agency, etc., some other institution,
iii. Tort law should NOT value:
1. Day in court: day of scarce resources should prefer money over dignitary day in
court idea.
2. Corrective justice: doesnt tell us what it means to have wrongfully injured
someone else
a. Ex-ante , people shouldnt prefer these things
b. Maybe discourages punitive damages?

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