Table of Contents

Intentional Torts: .................................................................................................................................................. 3

The Concept of Intent....................................................................................................................................................... 3
Battery and Assault .......................................................................................................................................................... 4
Battery: ........................................................................................................................................................................... 4
Assault: ........................................................................................................................................................................... 4
 Dickens v. Puryear ............................................................................................................................................................. 5
Transferred Intent ............................................................................................................................................................ 5
Insanity: ............................................................................................................................................................................. 5
Trespass: ............................................................................................................................................................................ 6
 Trespass to Land .................................................................................................................................................... 6
 Trespass to Chattels ............................................................................................................................................... 7
Defenses: ............................................................................................................................................................................ 8
Consent ........................................................................................................................................................................... 8
 Hellriegel v. Tholl, ............................................................................................................................................................. 9
 Mulloy v. Hop San ............................................................................................................................................................. 9
Self Defense ................................................................................................................................................................... 9
 Lane v. Holloway, ............................................................................................................................................................ 11
 Silas v. Bowen,................................................................................................................................................................. 11
Defense of Property ...................................................................................................................................................... 11
 Brown v. Martinez, .......................................................................................................................................................... 12
Discipline ..................................................................................................................................................................... 12
Necessity ...................................................................................................................................................................... 13
Public Necessity ........................................................................................................................................................................ 13
Private Necessity ....................................................................................................................................................................... 13
Chapter 3: Negligence: ....................................................................................................................................... 14
The plaintiff’s Prima Facie Case ................................................................................................................................... 14
The Standard of Care ..................................................................................................................................................... 15
The Reasonable “Person” ............................................................................................................................................. 15
Variations of the “Reasonable Man” Standard ............................................................................................................. 15
 Vaughan v. Menlove ........................................................................................................................................................ 15
 Delair. V. McADO ........................................................................................................................................................... 16
 Charbonneau v. MacRury ................................................................................................................................................ 16
 Goss v. Allen .................................................................................................................................................................... 16
 Haley v. London Electricity Board .................................................................................................................................. 16
Calculus of Risk ........................................................................................................................................................... 16
 Barker v. City of Philidelphia, ......................................................................................................................................... 17
 US v. Carroll Towing Co. ................................................................................................................................................ 17
 Pitre v. Employers Liability Assurance Corp ................................................................................................................... 17
Establishent of the Standard of Care by the Legislature: Violation of Statute ............................................................. 17
 Martin v. Herzog, ............................................................................................................................................................. 18
 Brown v. Shyne ................................................................................................................................................................ 18
 Tedla v. Ellman ................................................................................................................................................................ 18
 Barnum v. Williams ......................................................................................................................................................... 18
Proof of Negligence; the Use of Custom and Expert Testimony ................................................................................. 18
 Dempsey v. Addison Crane Co ................................................................................................................................... 19
 C. Malpractice .................................................................................................................................................................. 19
 Shillkret v. Annapolis Emergency Hospital Association, ........................................................................................... 20
 Helling v. Carey .......................................................................................................................................................... 21
 Miller v. Kennedy ....................................................................................................................................................... 21
The use of Circumstantial Evidence: “Res Ipsa Loquitur” .......................................................................................... 21
Historical Roots ............................................................................................................................................................ 22
 Byrne Byrne v. Boadle ................................................................................................................................................ 22
The modern Doctrine ................................................................................................................................................................. 22

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  George Foltis, Inc. V. City of New York .................................................................................................................... 22
 Swiney v. Malone Freight Lines ................................................................................................................................. 22
Some Special applications of the Doctrine of Res Ipsa Loquitur ................................................................................. 23
 Ybarra v. Spangard .......................................................................................................................................................... 23
Negligence: Foundational duties ........................................................................................................................ 23
A. What is duty, and how generally do courts decide it? ............................................................................................ 23
B. Foundational duty rules ............................................................................................................................................ 23
1. The duty not to create a risk of physical harm ......................................................................................................... 23
A. The Risk-Creation Rule as Strong Default ....................................................................................................................... 24
a.
Thompson v. Kackinski, .............................................................................................................................................. 24
B. The Risk-Creation Rule Conditioned on Foreseeable Harm or Risk ............................................................................... 24
 Brown v. Kerr, ............................................................................................................................................................. 24
C. The Risk-Creation Rule Conditioned on a Foreseeable P. ............................................................................................... 24
 Palsgraf v. Long Island Railroad ................................................................................................................................. 25
2. Affirmative Duties to Warn, Protect or Rescue ................................................................................................... 25
A. The General Rule: No Duty to Warn, Protect, or Rescue ..................................................................................................... 25
B. Policing the Line Between “Misfeasance” (risk creation) and “Nonfeasance” (Rescue) ...................................................... 25
 Price v. E.I. DuPont de Nemours & Co ....................................................................................................................... 26
D. Exceptions to the General Rule: Affirmative Duties ........................................................................................................ 26
1. Affirmative Duty Due to Special Relationship with P ................................................................................................ 26
Grimes v. Kennedy Krieger Institute, Inc., ...................................................................................................................... 27
2. Affirmative Duty of a Volunteer Rescuer ................................................................................................................... 27
 Farwell v. Keaton, .................................................................................................................................................. 27
3. Affirmative Duty of Those Whose Conduct has injured or created a risk of injury to Others .................................... 28
 Maldonado v. Southern Pacific Transportation Company, ..................................................................................... 28
4. Affirmative Duty Due to Special Relationship With Third-Party ............................................................................... 28
 Thompson v. County of Alameda, .......................................................................................................................... 28
C. No-Duty Based on Public Policy ............................................................................................................................... 29
 Strauss v. Belle Realty Company ........................................................................................................................ 29
 Graff v. Beard ...................................................................................................................................................... 29
Chapter 5: Causation ..................................................................................................................................................... 29
A. Cause in Fact – The But-for Test and the Notion of “Substantial Cause” ........................................................... 29
B. Proximate Cause .................................................................................................................................................. 33
C. Intervening Causes as Superseding Causes ......................................................................................................... 35
Chapter 6: Negligence: Special Duties .......................................................................................................................... 36
A. Special Duty Rules Depending on the type of P or D ......................................................................................... 37
 Visitors statues ................................................................................................................................................................. 37
Immunities ................................................................................................................................................................................. 40
 Immunity or Just Plain Duty? ...................................................................................................................................... 40
B. Special Duty Rules Depending on the Type of Harm. ........................................................................................ 41
A. Emotional Harm ............................................................................................................................................................... 41
 IIED ..................................................................................................................................................................... 44
 Star v. Rabello .................................................................................................................................................................. 44
 Snyder v. Phelps ............................................................................................................................................................... 44
Chapter 7: Others’ Conducts as a Contributing Cause .................................................................................................. 45
Contributory Negligence .............................................................................................................................................. 46
Comparitive Neglignece ............................................................................................................................................... 46
Last Clear Chance: ....................................................................................................................................................... 50
Assumption of the Risk ................................................................................................................................................ 51
Responsibility of Multiple Parties, Including the P ..................................................................................................... 55
Vicarious Liability: .................................................................................................................................................................... 55
Chapter 8: Strict Liability.............................................................................................................................................. 59
A. Animals................................................................................................................................................................ 59
Chapter 9: Products Liability ........................................................................................................................................ 62
 A. Negligence Actions – Overcoming the Privity Barrier ................................................................................... 62
 Thomas v. Winchester ...................................................................................................................................................... 63
 MacPherson v. Buick Motor Co ....................................................................................................................................... 63
Restatement (Second) of Torts § 402A (1965) .......................................................................................................................... 65
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 Restatement (Third) of Torts: Prod. Liab. § 1 ........................................................................................................................... 67
Restatement (Third) of Torts: Prod. Liab. § 2 ........................................................................................................................... 67

20 pages ~ 6000 words

Intentional Torts:
The Concept of Intent
 Rstmt (third) of Torts: Liability for Physical and Emotional Harm, Section 1. Intent
 A person acts with the intent to produce a consequence if:
 the person acts with the purpose of producing that consequence; or
 the person acts knowing that the consequence is substantially certain to result
 Comment:
 A. Purpose and substantially certain knowledge: coverage and relationship. A purpose to cause
harm makes the harm intentional even if harm is not substantially certain to occur. Likewise,
knowledge that harm is substantially certain to result is sufficient to show that the harm is
intentional even in the absence of a purpose to bring about that harm. Of course, a mere
showing that harm is substantially certain to result from the actor’s conduct is not sufficient to
prove intent; it must also be shown that the actor is aware of this. Moreover, under Subsection
(b) it is not sufficient that harm will probably result from the actor’s conduct; the outcome must
be substantially certain to occur.
 Substantial certainty: limits. The substantial-certainty definition of intent requires an
appreciation of its limits. The applications of the substantial-certainty test should be limited to
situation in which the defendant has knowledge to a substantial certainty that the conduct will
bring about harm to a particular victim, or to someone within a small class of potential victims
within a localized area.
 Rstmt (third) of Torts: Liability for Physical and Emotional Harm, Section 2. Recklessness
 a person acts recklessly in engaging in conduct if:
 the person knows of the risk of harm created by the conduct or knows facts that make that risk
obvious to another in the person’s situation, and
 the precaution that would eliminate or reduce that risk involves burdens that are so slight relative
to the magnitude of the risk as to render the person’s failure to adopt the precaution a
demonstration of the person’s indifference to the risk.

Comment:
 a. Terminology and scope. Terms conveying the idea of wrongdoing that is aggravated-even
though falling short of the wrongdoing involved in intentional torts-are common in the discourse
of torts.
 Sometimes the term used is “gross negligence.” Taken at face value, this term simply means
negligence that is especially bad. Given this literal interpretation, gross negligence carries a
meaning that is less than recklessness.
 The term ‘willful or wanton misconduct’ is also frequently employed. “Willful misconduct”
sometimes refers to conduct involving an intent to cause harm; but “wanton misconduct” is
commonly understood to mean recklessness. Frequently, courts refer to conduct that displays
a reckless disregard for risk is equivalent to stating that the person’s conduct is reckless.
 Cases that deal with the concept of intent outside of the context of the traditional intentional torts.

 Rstmt Section 33: It does not matter if the injury was worse than what was foreseeable in intentional
torts, you are fully liable for all injury. See Masters v. Becker
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 Battery and Assault
 An infant who forcibly invades the person of another is liable for a battery regardless of an intent to inflict injury; the only intent
which is necessary is that of doing the particular act in question. Battery requires only the intention of the violent act.
Negligence requires the ability to realize that the conduct might lead to injury. An infant may have the capacity to intend the
violent contact which is essential for battery while the same infant would be incapable of realizing that his heedless conduct might
foreseeably lead to injury to another which is essential capacity of mind to create liability for negligence.

Battery:
 Rstmt Section 13: Battery (pg. 19)
 a battery is the intentional infliction of either a “harmful contact” or an “offensive contact” with the
person of another. An actor is subject to liability to another for battery if
 He acts intending to cause a harmful or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact and
 A harmful contact with the person of the other directly or indirectly results

 Rstmt Section 16: Character of intent necessary

 To recover damages for an assault or battery founded on bodily contact, a P must prove only that
there was bodily contact; that such contact was offensive; and that the defendant intended to make
the contact. The plaintiff is not required to prove that defendant intended physically to injure him.
Certainly he is not required to prove an intention to cause the specific injuries resulting from the
contact. (Rstmt Section 16, Masters v. Becker).

 Restatement, 2d., §18 Battery: Offensive Contract

(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and
(b) an offensive contact with the person of the other directly or indirectly results.
(2) An act which is not done with the intention stated in Subsection (1)(a) does not make the actor liable
to the other for a mere offensive contact with the other’s person although the act involves an
unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened
bodily harm.
 Comment C: Rstmt Section 18, Comment C. of 2nd Restatement: Since the essence of plaintiff’s
grievance consists in the offense to the dignity involved in the unpermitted and intentional
invasion of the inviolability of his person and not in any physical harm done to his body, it is not
necessary that the plaintiff’s actual body be disturbed.

 Section 19: A bodily contact is offensive if it offends a reasonable sense of personal dignity
 Rstmt Section 19: The contact need not be harmful, it is sufficient if the contact offends the person’s integrity. The
propriety of the contact is assessed by an objective “reasonableness” standard. It must offend a reasonable sense of
personal dignity, i.e. it must be one which would offend the ordinary person, and as such one not unduly sensitive as to
his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and
place at which it is inflicted

 The fact that a person does not discover the offensive nature of the contact until after the event does not,
ipso facto, preclude recovery.

Assault:
a. Rstmt Section 21: Assault:
i. The intentional putting of another in imminent apprehension of a harmful or offensive
contact constitutes the tort of assault. Again, the requisite intent may be shown by an
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 intent to cause a harmful or offensive contact or by an intention to cause an imminent
apprehension of such a contact.
b. Rstmt (2nd) of torts: to make the actor liable for an assault he must put the other in apprehension
of an imminent contact. The comment states: The apprehension created must be one of imminent
contact, as distinguished from any contact in the future. “Imminent does not mean immediate, in
the sense of instantaneous contact. It means rather that there will be no significant delay.

c. Rstmt Section 22: Attempt Unknown to Other

i. An attempt to inflict a harmful or offensive contact or to cause an apprehension of such
contact does not make the actor liable for an assault if the other does not become aware
of the attempt before it is terminated.

d. Rstmt Section 30: Conditional Threat: Liable for assault even if he gives the toher the option to
escape the contact by obedience to a comman given by the actor.

e. Rstmt (2nd) Section 31: Threat by words

i. provides that words do not make the actor liable for assault unless together with other
acts or circumstances they put the other in reasonable apprehension of an imminent
harmful or offensive contact with his person.
f. Rules: Prosser said “threats for the future are not actionable as assaults
i. The fact that a person does not discover the offensive nature of the contact until after the event does not,
ipso facto, preclude recovery
g. Restatement (Second) of Torts § 33 (1965)
i. To make the actor liable for an assault, it is not necessary that he have or that he believe
that he has the ability to inflict the harmful or bodily contact which his act apparently
threatens.
h.
Cases:
 Dickens v. Puryear Supreme Court of North Carolina, 1981 (relatively recent) – Conditional threats are assaults,
however, they must be immediate threats not threats for the future.

Transferred Intent:
 Timmy: If defendant unlawfully aims at one and hits another he is guilty of assault and battery on the party he hit, the injury
being the direct, natural, and probable consequence of the wrongful act. The rule is not confined to criminal cases. (Singer v.
Marx)

Insanity:
 Minority Rule: Dual intent: Historically there was the dual intent requirement of intentional torts:
 A person had to intentionally contact another resulting in a harmful or offensive contact AND
 The actor had to understand that his contact would be harmful or offensive. (The actor need not have intended, however,
the harm that actually resulted from his action)
 However, more recently, some courts in the US have abandoned this dual intent requirement in an intentional tort setting:
They require only that the tortfeasor intend a contact with another that results in a harmful or offensive touching. The actor
thus could be held liable for battery because a reasonable person would find an injury offensive or harmful, irrespective of the
intent of the actor to harm or offend. In most instances when the defendant is a mentally alert adult, the comingling of these
definitions prejudices neither the plaintiff nor the defendant

 Rst 2nd Section 895J state One who has deficient mental capacity is not immune from tort liability solely for that reason.
Comment c gives an example. The main rationale is that someone must bear the lass and sound policy favors placing the loss on
the person who caused it, whether sane or not.

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 Where the D loses all capacity for voluntary action, such as where he unexpectedly becomes ill, then the D will not be held to be
capable of forming the requisite intent. Nevertheless, even in such instances, the D may be held liable on a negligence theory if,
having reason to know that the was subject to such seizures, he engages in activities that create a high degree of risk to others if
he should suddenly suffer a seizure.

 White states a minority rule. Many, many cases have held insane people responsible for their tort under a battery theory. The
prevailing American view is that a finding of insanity does not preclude a finding that a D acted intentionally. A jury may find
that an insane person acted intentionally if he intended to do what he did, even though his reasons and motives were entirely
irrational. Rst 2nd Section 895J state One who has deficient mental capacity is not immune from tort liability solely for that
reason. Comment c gives an example. The main rationale is that someone must bear the lass and sound policy favors placing the
loss on the person who caused it, whether sane or not.

 Where the D loses all capacity for voluntary action, such as where he unexpectedly becomes ill, then the D will not be held to be
capable of forming the requisite intent. Nevertheless, even in such instances, the D may be held liable on a negligence theory if,
having reason to know that the was subject to such seizures, he engages in activities that create a high degree of risk to others if
he should suddenly suffer a seizure.

 The insanity defense is in fact not an affirmative defense at all. Rather, it is a denial that the P has proven an essential element of
his claim i.e. that the D intended to batter the P. The term “defense is usually resrved for situations where the D accepts the fact
that the P has proven each element of the tort, but claims there are other circumstances that vitiate the P’s right to recover, e.g. the
P consented or the D was acting in self-defense.

Trespass:

 Trespass to Land
 A. General
 Trespass only requires intention of the action that constitutes the invasion of another’s land or the action that
constitutes the physical interference with the chattels of another. It is not necessary that the D have intended to enter
the land of the P.
 As is the case with other intentional torts, the D may be liable if she knows her actions make entry onto the land of
another a substantial certainty.
 Accidental entry is not trespass unless you cause injury and there was reckless or dangerous conduct.

 Restatement, 2d., §158 Liability for Intentional Intrusions on Land

 One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any
legally protected interest of the other, if he intentionally
 enters land in the possession of the other, or causes a thing or a third person to do so, or
 remains on the land, or
 fails to remove from the land a thing which he is under a duty to remove.
 Restatement, 2d., §163 Intended Intrusions Causing No Harm
 One who intentionally enters land in the possession of another is subject to liability to the possessor for a
trespass, although his presence on the land causes no harm to the land, its possessor, or to any thing or
person in whose security the possessor has a legally protected interest.
 Restatement, 2d., §164 Intrusions Under Mistake
 One who enters the land of another in the mistaken but nevertheless reasonable belief that he is entering onto his own land is
nonetheless liable in trespass. See Restatement (Second) of Torts Section 164. As long as the D intended to take the step
which resulted in his entry onto the P’s land, the requisite intention exists.

 B. Privileged Entries Upon the Land of another.

 Not all intentional entries onto the land of another are actionable. Some are privileged as,
for example, when one enters the land of another with the consent of the possessor. In
many everyday situations consent is implied.
 Case: Dobrin v. Stebbins: a door to door salesman was attacked by D’s dog was not
considered a trespasser.

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  Defense of necessity: in some emergency situations, public authorities and also private
persons can enter the land of others without consent and even destroy the real and personal
property of others, to avoid greater perils
 Other privileges: travelers upon the public highways to enter adjoining land in order to avoid
obstructions upon the highway and of the owners of animals being driven upon the public
highway to enter adjoining land to recapture animals that have strayed from the highway

 C. Variant Situations
 There are some situations where a person may be held liable in trespass although his initial entry
upon the land was lawful: arises where a person lawfully enters upon the property of another,
under license of the law, and then abuses his license by doing some tortuous act. The law will
consider him to have been a trespasser “from the beginning.”
 This doctrine is not usually applied where the original entry was by the consent or invitation of
the party injured. However, one who has entered land with permission cannot remain upon the
land after the possessor has asked him to leave.
 If a person has been permitted to place personal property on the land of another and refuses to
remove it within a reasonable time after the permission has been revoked, trespass to land will
then lie. To facilitate removal of the chattel, the person is permitted to enter the land in a
reasonable manner and within reasonable time to remove the chattel

 D. Extent of the Interest protected.

 The land possessor’s interest is in:
 Typically, the exclusive possession of the surface area of the land, but also,
 Subsurface areas of the land
 Public easements for sewer lines or subways may be so far below the potentially useable subsurface areas
of the land as not to constitute a compensable “taking” of property.
 Trespass claims also arise with respect to oil and gas wells and underground pollution, out of scope of first
year class.
 Airspace above land
 Since the Air Commerce Act of 1926, the FAA says navigable air space is within the public domain.

 Trespass to Chattels
 A. General
 All that is required is that the defendant act voluntarily. A good faith and reasonable belief that
the chattels are one’s own is no defense.
 Animals are considered to be chattels
 Where, the defendant has merely intentionally interfered with the chattel, an action for trespass
to chattels will only lie if the plaintiff can show some actual damages. ().
 The damages can consist in physical damage to the chattel itself or in the loss of the use
of the chattel for a substantial period of time.

Restatement, 2d., §217 Ways of Committing Trespass to Chattel

A trespass to a chattel may be committed by intentionally
(a) dispossessing another of the chattel, or
(b) using or intermeddling with a chattel in the possession of another.

Restatement, 2d., §218 Liability to Person in Possession

One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if,
but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or

7
 (c) the possessor is deprived of the use of the chattel for a substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in
which the possessor has a legally protected interest.
 The internet has created new and interesting ways to trespass on another’s chattel.
 In eBay v. Bidder’s Edge, Inc.: To acquire info, Bidder’s Edge used software robots whose
function was to retrieve info from the web sites of others. EBay sued the defendant, alleging
the robots constituted a trespass to eBay’s chattel i.e. its servers. The court agreed. Part of the
claim was that the robots threatened to reduce eBay’s system performance and system
availability.

 B. Relationship to Conversion
 The tort of trespass to chattels is closely related to the tort of conversion. Conversion covers the
intentional “exercise of dominion or control over a chattel which so seriously interferes with the
right of another to control it that the actor may justly be required to pay the other the full value of
the chattel.” Rstmt (2nd) of Torts Section 222A.
 In other words, under a conversion theory, the defendant is forced to purchase the chattel from
the plaintiff. The exercise of dominion can consist of the intentional unauthorized use,
destruction, possession, or wrongful disposition of the chattel. In a case where the defendant
intentionally destroys a chattel, the remedy will be the same whether the plaintiff brings his
action in trespass to chattels or in conversion.
 Under both theories the damages will be the fair market value of the chattel at the time of its
destruction. Where the chattel is not totally destroyed however, the remedy under a trespass
theory will only be the damage caused to the chattel, that is an amount representing the
diminution in the chattel’s fair market value. In those circumstances a plaintiff might prefer to
proceed in conversion if he is able to establish that the defendant has exercised the requisite
dominion or control over the plaintiff’s property.
 Similarly, to take a case of unauthorized use of a chattel, conversion will lie, and the defendant
will in effect be forced to purchase the chattel, if the unauthorized use “is a serious violation of
the right of another to control its use.” Rstmt (2nd) of Torts Section 227.
 Class Notes: Trespass is a specific intentional tort with defined elements. Trespass to Land: the entry
onto the land is voluntary. Someone who faints and falls into someone’s land is not trespassing, but a
voluntary mistake IS trespass. There are some exceptions: some people enter someone’s land with privilege (a
postman). If Timmy threw rock onto the next door neighbor’s property it would be a trespass. If Timmy directs his dog to go
onto his neighbor’s land? Yeah. Even if actual damages cannot be proven P can recover nominal damages. Lots of entries
onto land can be consented to: A gas station or school is open to the public but they have the right to withdraw someone’s
right to be there. Consent can be implied. Trespass of Chattels: The law places a higher importance on protecting someone’
land than property. Conversion: exercise of dominion over a chattel to such an extent that you need to pay him back
completely for the chattel. The dividing line between trespass to chattel and conversion depends on the nature of the
situation. If you are at a restaurant with a coat closet but you accidentally take someone else’s coat, if you promptly turn
around and return it, technically yes you committed a tort, you exercised dominion over it but no damage has happened to the
coat so it’s a trespass to chattel. If you keep the coat for all of witner at that point its probably conversion. You owe the
market value. Determining the market value of of when? It’s a tough question sometimes.

Defenses:

Consent
 Can be given in different ways - Consent need not be expressed in words. It can be inferred from the circumstances. What is
crucial is not so much what the person purportedly consenting intended but what a reasonable person interacting with that
individual would conclude under the prevailing circumstance. That is, the law is searching for apparent consent. Consent can
be either expressly given or impoed from the circumstances.
 Fully expressed – medical consent forms, sometimes it is so fully elaborated the patient gives up reading.
 Implied – put out hand to shake is consenting the other person to shake your hand, police officers coming onto a premise.
 Sometimes the appearance of consent is an important factor.
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  Scope – Consent to what?
 If I consent to someone holding my hand, did I consent to have him squeeze my arm aggressively? The medical consent
forms define consent.

 Restatement (Second) of Torts § 892A (1979)

 (1) One who effectively consents to conduct of another intended to invade his interests cannot recover
in an action of tort for the conduct or for harm resulting from it.
 (2) To be effective, consent must be

 (a) by one who has the capacity to consent or by a person empowered to consent for him, and
 (b) to the particular conduct, or to substantially the same conduct.

 (3) Conditional consent or consent restricted as to time, area or in other respects is effective only within
the limits of the condition or restriction.
 (4) If the actor exceeds the consent, it is not effective for the excess.
 (5) Upon termination of consent its effectiveness is terminated, except as it may have become
irrevocable by contract or otherwise, or except as its terms may include, expressly or by implication, a
privilege to continue to act.

Restatement (Second) of Torts § 53 (1965)

The rule stated in § 892A(2) as to consent to the particular conduct applies to intentional invasions of
interests of personality.

 Rstmt Section 53, Comment a: To constitute consent, the assent must be to the invasion itself not merely to the act which
causes it but comment b says the term “invasion” refers to the intentional acts, such as blows received in a boxing match, and
not the injuries which may result from accidents such as accidental slipping, as in the case at bar.

 Consent, once granted, can be withdrawn.

 Rstmt Section 60 takes the minority position that consent should operate to bar a tort action when the conduct consented is
criminal. There is a distinct split in authority on that point.

 Hellriegel v. Tholl, Supreme Court of Washington, 1966

 The setting in which the words were spoken is key to their meaning.

 Mulloy v. Hop Sang – if consent is withdrawn before surgery you can’t do it. However, consent may be presumed if
the patient is under anaesthesia and a situation arises that would require to be treated immediately. Consent is also
presumed in an emergency.

Self Defense (heavy overlaps with criminal law)

 Although some jurisdictions are to the contrary, the predominant view in the US, as in England, is that
provocation is not relevant to the issue of compensatory damages. Provocation is of course always relevant
on the issue of punitive damages.

 Even if provoked, if the returning blow is way out of proportionto the circumstnaces it is not a defense.

 The fact that the P may not have desired or in any way intended to harm the D is irrelevant. When the issue
is defense of person, the law focuses upon how the situation would have appeared to a reasonable person in
the D’s position.

 Restatement (Second) of Torts § 63 (1965)

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(1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm,
to defend himself against unprivileged harmful or offensive contact or other bodily harm which he
reasonably believes that another is about to inflict intentionally upon him.

(2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or
reasonably believes that he can avoid the necessity of so defending himself,

 (a) by retreating or otherwise giving up a right or privilege, or

 (b) by complying with a command with which the actor is under no duty to comply or which the other is
not privileged to enforce by the means threatened.

 Rstmt (Second) of Tortes Section 63 permits one to defend himself from harm by using non-deadly force,
even if he could avoid injury by retreating.

 When it comes to deadly force, however, Section 65 of the Rstmt adopts the so-called English common-law
rule that resort to deadly force, that is force threatening death or serious bodily injury, cannot be justified if
retreat is possible unless the defender is attacked within his own dwelling or is defsending his own dwelling
against intrusion or dispossession. It is said, however, that the majority of American jurisdiction have not
adopted this retreat to the wall rule. As the principal case illustrates, there are some states that have adopted
some type of intermediate position between the traditional majority view and the doctrine espoused by the
Rstmt.

 Restatement (Second) of Torts § 65 (1965)

 (1) Subject to the statement in Subsection (3), an actor is privileged to defend himself against another
by force intended or likely to cause death or serious bodily harm, when he reasonably believes that

 (a) the other is about to inflict upon him an intentional contact or other bodily harm, and that
 (b) he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be
prevented only by the immediate use of such force.

 (2) The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that
he can safely avoid the necessity of so defending himself by

 (a) retreating if he is attacked within his dwelling place, which is not also the dwelling place of the
other, or
 (b) permitting the other to intrude upon or dispossess him of his dwelling place, or
 (c) abandoning an attempt to effect a lawful arrest.

 (3) The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that
he can with complete safety avoid the necessity of so defending himself by

 (a) retreating if attacked in any place other than his dwelling place, or in a place which is also the
dwelling of the other, or
 (b) relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion
upon or dispossession of his dwelling place or to effect a lawful arrest.

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 The rule that one need not retreat from his home is sometimes called the “castle doctrine.” A person’s home
is his castle and one need not retreat from one’s castle to the uncertainties of the street. A number of states
have codified the castle doctrine. Other states go further, and create a presumption that the use of deadly
force when confronting a criminal in one’s home is reasonable. The Rstmt Section 76 gives a person the
right to use force to protect third persons “under the same conditions and by the same means as those under
and by which he is privileged to defend himself if the actor correctly and reasonable believe that the
circumstances are such as to give th third person a privilege of self-defense and his intervention is necessary
for the protection of the third person. Under the common law, the majority of states, however, followed an
earlier doctrine that one who seeks to justify the use of force, on the grounds of protection of a third person,
steps into the shoes of the third person. Rstmt Section 143, Section 131

 Lane v. Holloway, Court of Appeal, 1967 – Even if provoked, if the returning blow is way out of proportion to the
circumstnaces it is not a defense. The Judge claims provocation is not defense. Provocation can wipe out punitive
damages but not actual damages.

 Silas v. Bowen, US District Court, District of SC, 1967

 Rule/Analysis: In testing self-defense, it is necessary at the outset to note the circumstances of the parties at the
scene of the controversy. The D at the time of the battery, was at his place of business in the doorway to his office.
The plaintiff, though initially perhaps an invitee, had become a trespasser on the defendant’s premises as a result of
the demand of D that the he vacate the parking low now.
 Legal rights of the parties were:
 D had a plain right to order the plaintiff and his companions to depart and use reasonable force to eject them
 While this right does not ordinarily encompass the use of a deadly weapon, such use will be authorized, by way
of self-defense, if the conduct of the trespasser under all the circumstance is such as to produce in the mind of a
person of reasonable prudence and courage an apprehension of an assault by such trespasser involving serious
bodily harm.
 A D in his own place of business is not required to retreat in the face of a threatened assault in order to be able
to plead self-defense. While it is well-settled that mere words, however, “abusive, insulting, vexatious, or
threatening” will not in themselves justify the use of a deadly weapon, such words if “accompanied by an actual
offer of physical violence” reasonably warranting fear of serious bodily harm, may be an integral part of a plea
of self-defense against liability for an assault and battery.
 In determining whether there was reasonable cause for the apprehension of serious bodily harm, the difference
in age, size, and relative physical strength of the parties to the controversy is a proper matter for consideration.
 The D, in order to support his plea of self-defense, must not have been at fault in provoking the difficulty but by
demanding that the plaintiff and his companions leave his parking lot, the defendant acted within his legal rights
and can in no way be regarded as provoking the difficulty in this case.
 Conclusion:
 The defendant made out this plea of self-defense. He acted in reasonable apprehension of serious bodily harm
and to repel what he reasonable feared would be a serious and dangerous assault by a person of overpowering
size.

Defense of Property
 While the law justifies the taking of life when necessary to prevent felony, one cannot use deadly
force to defend his property, other than his habitation, for the mere purpose of preventing a
trespass.

 Upon a principle of necessity, a well-founded belief that a known felony was about to be
committed is a defense for homicide committed in prevention of the supposed crime; but when
the necessity ceases, and the supposed felon flees, a killing in pursuit will not excuse the offense
of the pursuer. This defense rests upon an actual felony committed and a necessity for the killing
to prevent the escape of the felon.

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  while a man may use as much force as is necessary in the defense of his property, it is generally
held that, in the absence of the use of force on the part of the intruder, he is not justified in the
use of such force as to inflict great bodily harm.

 It also says the use of a deadly weapon in the protection of property is generally held, except in
extreme cases, to render the owner of the property liable, both civilly and criminally, for the
assault.

 Restatement of Law of Torts, Section 16: If an act is done with the intention of affecting a third
person in the manner stated in Subsection (1), but causes a harmful bodily contract to another, the
actor is liable to such other as fully as though he intended so to affect him
 And it is following by Illustration 3 which is identical to the situation before us:
 A and B are trespassers upon C’s land. C sees A but does not see B nor does he know that
B is in the neighborhood. C throws a stone at A which misses him. Immediately after C
has done so, B raises his head above a wall behind which he has been hiding. The stone
misses A but strikes B, putting out his eye. C is liable to B.

 if the threatened misdemeanor constitutes a threat to one’s property, one may not use reasonable force to protect one’s property
but the fact that the threat amounts to a misdemeanor does not give one an independent basis for resorting to force.

Restatement (Second) of Torts § 140 (1965)

 In the absence of legislative authority, neither a peace officer nor a private person is privileged to use
force against or impose confinement upon another for the purpose of preventing the violation of a
statute or a municipal ordinance or a continuance or commission of a misdemeanor other than an
affray or other equally serious breach of the peace.

 Brown v. Martinez, Supreme Court of New Mexico, 1961

 The case does not present a question of fact of whether or not force used by appellee was reasonable or excessive.
Thus use of a gun was as a matter of law not permissible. There is no proof that Martinez in any way felt his safety
was threatened. He acted improperly and is liable for injuries caused in using a gun in the manner he did in order to
drive away trespassers on his property, or to protect his watermelons, or to scare the intruders.
 Does it make any difference that the act was unintentional? The appellee intended to shoot only for the purpose of
scaring the trespassers and in a direction where he did not know any boys were present, Restatement of Law of
Torts, Section 16, reads as follows: If an act is done with the intention of affecting a third person in the manner
stated in Subsection (1), but causes a harmful bodily contract to another, the actor is liable to such other as fully as
though he intended so to affect him
 And it is following by Illustration 3 which is identical to the situation before us:
 A and B are trespassers upon C’s land. C sees A but does not see B nor does he know that B is in the
neighborhood. C throws a stone at A which misses him. Immediately after C has done so, B raises his head
above a wall behind which he has been hiding. The stone misses A but strikes B, putting out his eye. C is
liable to B.
 Conlcusion: It follows that the cause must be reversed and remanded to determine appellants’ damages.
Discipline
 In a number of situations the law gives individuals the privilege to discipline others. The most important examples
of this privilege are between parent and child and between teacher and student. Many state have codified this
privilege in their criminal code. See Rstmt Section 150.
 It is very difficult however, to formulate a standard describing the limits of the privilege. Except where parental
behaviors rise to the level of criminal child abuse, there are few modern cases concerning parental discipline. An
exception is Willis v. State (Indiana, 2008). There the court found that the parental privilege to use physical force in
disciplining a son was a complete defense to a criminal charge of battery on a child. Suits by a student and his or her
parents against a teacher or principal are more frequent. Most cases address the scope of the privilege in the context

12
 of corporal punishment. Statutes or local school regulations may limit or completely eliminate the teachers’
privilege to administer corporal punishment. Cases occasionally raise the question of constitutionality of physical
school discipline.
Necessity
Public Necessity.

 United States v. Caltex, Inc, 1952: In denying the claim for compensation, the Court fell back on the long
recognized distinction between a taking for use, which must be compensated, and the destruction of property in the
course of combat operations for which compensation is not required.
 In Burmah Oil Co. v. Lord Advocate, 1965 the House of Lords rejected the distinction but Parliament disagreed and
made the War Damage Act of 1965
 Underlying much of the traditional doctrine is the judgment that, if compensation is to be paid in such
circumstances, the questions should be decided by the political branches of government.
 In National Board of Young Men’s Christian Associations v. United States, 1969 United States Army troops who
had been sent to protect the buildings retreated into the buildings to gain protection from sniper fire. One of the
buildings was subsequently set afire by Molotov cocktails and the troops were forced to evacuate the buildings. In
affirming rejection of the claims, the Court held that the occupation of the buildings in the course of trying to protect
them was not a taking of property.
 In less dramatic circumstances it has long been recognized that public authorities have the right to destroy private
property in emergency situations, such as destroying buildings to prevent the spread of fire, destroying the wallpaper
in the bedrooms of small pox victims, destroying mad dogs, and destroying commercial elk herd suffering from
tuberculosis
 A closer case is present when the police destroy property in an effort to apprehend felons.
 While the cases hold that the public is not legally required to pay for property destroyed pursuant to a valid claim of
public necessity, statutory schemes for compensating the owners of destroyed property have been established in
many types of situations.

Private Necessity
 Defense of Private Necessity for what otherwise would be trespass.

 Necessity will justify entries upon land and interferences with personal property that would otherwise have been trespasses. This
doctrine of necessity is applied with special force to the preservation of human life. One assaulted and in peril of his life may run
through the close of another to escape from his assailant. One may sacrifice the personal property of another to save his life or the
lives of his fellows.

 Vincent: In this case, the steamship was deliberately held against the dock. Defendant preserved its steamship at the expense of
Plaintiff’s dock. The Defendant is responsible for the damage done to Plaintiff’s dock. This is not a case where life or property
was menaced by any object or thing belonging to Plaintiff, the destruction of which became necessary to prevent the threatened
disaster. Nor is it a case where, because of the act of God, the infliction of the injury was beyond the control of Defendant. In this
case, Defendant prudently availed itself of Plaintiff’s property for the purpose of preserving its own more valuable property.
Plaintiff is entitled to compensation for the damage done to the dock.

 Restatement (Second) of Torts § 197 (1965)

(1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears
to be necessary to prevent serious harm to

 (a) the actor, or his land or chattels, or

 (b) the other or a third person, or the land or chattels of either, unless the actor knows or has
reason to know that the one for whose benefit he enters is unwilling that he shall take such action.

 (2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any
harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the

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possessor in the land or connected with it, except where the threat of harm to avert which the entry is
made is caused by the tortious conduct or contributory negligence of the possessor.

Illustration : A, an aviator, while carefully and skillfully operating his airplane makes a forced landing on B's
field in the reasonable belief that it is necessary to do so for the protection of himself and his plane. A is not
liable for his mere entry, but under the statement in Subsection (2) is subject to liability for any harm thereby
caused to B or to B's buildings, crops or other belongings.

Notes:
 The court appears to suugest that if in the circumstance of Ploof, the sloop had damaged the D’s property in the
course of the attempt of the P to save the life of his family, he would ave been liable for the damage done. This is the
position adopted byt eh Rstmt Section 197. There is very little authority on this point. Given the fact that our society
value life more than property, this results seems contrary to public policy. Public authorities have a privilege to
destroy property to save life and , in the exercise of that privilege, there are under no common-law duty to pay
compensation to the owner of the property.
 Necsity is generally used to excuse trespasses to land or trespasses to chattel. When should it be avalue for other
intentional invasions like battery. In the most extreme case, should the necessity defesne ever by extended to the
aking of human life in situations where one life may be traded for many?
 Rstmt Section 263: a person is privileged to commit an act that would otherwise be trespass to the chattle of another
or a conversion of it if it is or is reasonable believed to be reasonable and necessary to protect the person or property
of the actor or of others, subject to the actor’s being liable for any damage he may cause. But the issue is : does the
possessor of the property
 Class Notes: Here they say if the Poof’s had damages the Putnam’s dock they would been held liable but it’s hard to
find anything in Ploof that reaches that conclusion. Here we are dealing with a commercial vessel. Was it trespass
for them to dock and unload cargo there? No. The parties had a contract. They tried to see if they could move it to a
safer spot but the tugboats were not running. The court agrees it would have been improper to move it. The weight
and foce of the ship beating against the dock damage it. The crew was using the lines and applied more lines. The
market value of the ship was likely way more than the cost of damage to the ship so the master was probs not fired
for this. What was the theory of liabily here? Despte the necessity, the damager is still liable for the damage done to
property. When you choose to save your more valuable asset to the determinant of someone else’s less valuable
property you should pay.

Chapter 3: Negligence:
A person is under a duty to use due care: such care as would be used by a prudent man under similar circumstances and conditions.
Failure to use such due care is negligence, and if the negligence is a proximate cause of an injury to someone, the injured party may
recover damages from the defendant.

The plaintiff’s Prima Facie Case

 The P must establish what is called a prima facie case to survive a motion to dismiss at the close of the
presentation of his evidence. When the P has est. a prima face case the trial judge may no longer decide the
case as a matter of law but must, like a jury, weigh the evidence and resolve all the disputed issues of
material fact.
 In an action for negligence the P must allege and prove: Injury, duty, breach, causation.
 1. Damage to the P: an action for negligence cannot be brought merely for nominal damages
 2. Fault on the part of the D. The P must establish
 a. the existence of a duty on the part of the D towards the P
 b. the breach of that duty by the D (In most tort litigation, the existence of a duty is presupposed and
is not contested.)
 3. Causation: Establishing that the D’s fault (or breach of duty) was the factual and legal cause of the P’s
damages.
 Most jurisdictions now place the burden of pleading and proving contributory negligence upon the D. Many
courts in routine cases usually dispense with the duty analysis and speak merely in terms of fault, when it
has been shown that the D has exposed the P to a reasonably foreseeable risk of injury. The notion of duty is

14
 reserved for those situations, where for reasons of policy the law does not impose liability when a person
injures others through exposing them to a reasonably foreseeable risk of injury.
 Rstmt (3rd) Section 7
 (a) an actor “ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of
physical harm.”
 (b) in exceptional cases, when an articulated countervailing principle or policy warrants denying or
limiting liability in a particular class of cases, a court may decide that the D has no duty or that the
ordinary duty of reasonable care requires modification. The exceptions to this general doctrine have
arisen for a mélange of historical and policy reasons.
 – a lot of negligence law focuse on the creation of risk. Someone that creates a risk of injury to others has a
duty of reasonable care. One is not creating a certianry or substantial certainity that a harm will occur. That
is what distinguishes it from intentional torts.

The Standard of Care

The legal standard pursuant to which a jury must decide whether the D breached its duty of care.

The Reasonable “Person”

 objective standard.
 The ordinary person is “presumed” to know certain facts of common experience. A D may be under
a “duty to find out” that is to obtain knowledge about the characteristics of the environment in which
he lives.
 the duty of care is determined by weighing the burden of avoiding the risk compared to the
foreseeability of the risk occurring.

Variations of the “Reasonable Man” Standard

 Restatement, 3d., §9 Emergency
 If an actor is confronted with an unexpected emergency requiring rapid response, this is a
circumstance to be taken into account in determining whether the actor’s resulting conduct is that
of the reasonably careful person.
 Rstmt (3rd): Section 10 Children
 a. A child’s conduct is negligence if it does not conform to that of a reasonably careful person of the same age,
intelligence, and experience except as provided in Subsection (b) or (c).
 b. a child less than five years of ages is incapable of negligence
 c. the special rue in subsection (a) does not apply when the child is engaging in a dangerous activity that is
characteristically undertaken by adults.
 Restatement, 3d., §11 Disability
 The conduct of an actor with a physical disability is negligent only if the conduct does not
conform to that of a reasonably careful person with the same disability.
 The conduct of an actor during a period of sudden incapacitation or loss of consciousness
resulting from physical illness is negligent only if the sudden incapacitation or loss of
consciousness was reasonably foreseeable to the actor.
 An actor’s mental or emotional disability is not considered in determining whether conduct
is negligent, unless the actor is a child.
 Restatement, 3d., §12 Knowledge and Skills
 If an actor has skills or knowledge that exceed those possessed by most others, these skills or
knowledge are circumstances to be taken into account in determining whether the actor has
behaved as a reasonably careful person.

 Vaughan v. Menlove. - We ought to adhere to the rule which requires in all cases a regard to caution
such as a man of ordinary prudence would observe.
15
 Delair. V. McADO, - Supreme Court of Pennsylvania, 1936. The ordinary person is “presumed” to know
certain facts of common experience A D may be under a “duty to find out” that is to obtain knowledge about
the characteristics of the environment in which he lives. When using something dangerous like a car, a
vehicle owner is responsible for maintaining it in safe condition. He cannot say he did not know.

 Charbonneau v. MacRury (New Hampshire, 1931) - Minors are held to a standard of an average person of their age and
experience.

 Goss v. Allen, Posture: Supreme Court of New Jersey, 1976 - The courts have been almost universally reluctant to disagree
with the majority in Goss that there is a single standard whether the issue is the negligence of a child defendant or the contributory
negligence of a child P. Certain activities engaged in by minors are so potentially hazardous as to require that the minor be
held to an adult standard of care. Driving a motor vehicle, operating a motor boat and hunting would ordinarily be so
classified.

 Mentally deficient adults: No cases have been found in which a mentally deficient adult was not held to the objective reasonable
adult standard when the mentally deficient person was a D in an action for neglgicent. It’s diff for cont negligence.

 Standard applied in emergency situations: Rstmt, Liability for Physical and Emotional Harm Section 9: the reasonable person in
an emergency will not be required to exercise the judgment and care of a person who has ample time to reflect about what he
ought to do.

 Haley v. London Electricity Board, House of Lord, 1964. – the duty of care is determined by weighing the burden of
avoiding the risk compared to the foreseeability of the risk occurring.
 Notes: A reasonable blind person must take measures to offset his handicap but to ignore his handicap in determining
what he must do would be tantamount to imposing upon him a legal obligation not to be blind. In Haley it was assumed
that the D’s had sufficiently marked their excavation so that it presented no unreasonable danger to persons with sight
and the issue became not only what standard of conduct the law expected of the blind but also the extent of the obligation
if any to anticipate the presence of blind people.

Calculus of Risk
 Did the actor fall below the standard of care - Once one determines the standard of care expected of a potential P and the
existence of an obligation to anticipate a particular potential P because of a foreseeable degree of risk to that potential P, the
question becomes what should the D, as a reasonable person, have done under the circumstances. The standard of care is a
question of law, applying the standard to the facts is a question for the jury.

 Restatement, 3d., §3 Negligence

 A person acts negligently if the person does not exercise reasonable care under all the circumstances.
Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the
foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm
that may ensue, and the burden of precautions to eliminate or reduce the risk of harm

 [B<P*L]. In determining whether a person was negligent the courts will often consider the social utility of
his conduct and the social utility of the interests that have been harmed. The comments of the restatement
flesh out the balancing process of the elements.

 Negligence requires that the risk be foreseeable and unreasonable. Ordinary care requires only that
precautions be taken against occurrences that can and should be foreseen; it does not require that one
anticipate unusual and improbable, though entirely possible happenings. The risk of foreseeable harm to
others, and the probability of an accident of this nature occurring is outweighed by the utility of purpose for
which the enterprise was conducted.

16
  Barker v. City of Philidelphia, US District Court, Eastern District of Pennsylvania, 1955. – if injury in general is
foreseeable, then the extent of the injury does not have to be foreseeable to be liable.
 What he could foresee is important in determining whether he was negligent in the first instance, but not all decisive in
determining the extent of the consequences for which, once negligent, he will be liable.
 Notes: It is generally agreed that a D is the legal cause of injuries whose extent he could not reasonably have foreseen. It
is another question whether, before legal liability can attach, the D must not at least have been reasonably able to foresee
the general type of injury he has inflicted. (See Chapter 5).

 US v. Carroll Towing Co. Circuit Court of Appeals, Second Circuit, 1947: the Learned Hand Formula to determine if a
P was negligent.

 Pitre v. Employers Liability Assurance Corp. - Negligence requires that the risk be foreseeable and unreasonable.
Ordinary care requires only that precautions be taken against occurrences that can and should be foreseen; it does not require
that one anticipate unusual and improbable, though entirely possible happenings. The risk of foreseeable harm to others, and
the probability of an accident of this nature occurring is outweighed by the utility of purpose for which the enterprise was
conducted.

Establishent of the Standard of Care by the Legislature: Violation of Statute

 If violation of the statute by the defendant was the proximate cause of the plaintiff’s injury, then the plaintiff
may recover upon proof of violation. If violation of the statute has no direct bearing on the injury, proof of
the violation becomes irrelevant.

 Consider the Purpose of the Statute and the Causation.

 Greater harm principle: When complying with the statute would put them at greater risk then you don’t have to follow it.

 The burden shifts to the D in cases of violation of statute to prove reasonableness.

 A jury can determine that a defendant was acting reasonably even while in violation of a statute.

Restatement (Third) of Torts: Phys. & Emot. Harm § 14 (2010) Statutory Violations as Negligence Per Se
An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the
type of accident the actor's conduct causes, and if the accident victim is within the class of persons the statute is
designed to protect.

Restatement (Third) of Torts: Phys. & Emot. Harm § 15 (2010): An actor's violation of a statute is excused and
not negligence if:
(a) the violation is reasonable in light of the actor's childhood, physical disability, or physical
incapacitation;
(b) the actor exercises reasonable care in attempting to comply with the statute;
(c) the actor neither knows nor should know of the factual circumstances that render the statute
applicable;
(d) the actor's violation of the statute is due to the confusing way in which the requirements of the statute
are presented to the public; or
(e) the actor's compliance with the statute would involve a greater risk of physical harm to the
actor or to others than noncompliance.

Restatement (Third) of Torts: Phys. & Emot. Harm § 16 (2010)

(a) An actor's compliance with a pertinent statute, while evidence of nonnegligence, does not preclude a
finding that the actor is negligent under § 3 for failing to adopt precautions in addition to those mandated by the
statute.

17
 (b) If an actor's adoption of a precaution would require the actor to violate a statute, the actor cannot be
found negligent for failing to adopt that precaution.

 Martin v. Herzog, Court of Appeals of New York, 1920. – Violation of statute is negligence per se, however, to be liable for
that negligence it must be a cuase of the injury.

 Brown v. Shyne. - If violation of the statute by the defendant was the proximate cause of the plaintiff’s
injury, then the plaintiff may recover upon proof of violation. If violation of the statute has no direct bearing
on the injury, proof of the violation becomes irrelevant.
 Synopsis of Rule of Law. The protection, which the statute was intended to provide, was against risk of
injury by the unskilled or careless practitioner. Unless Plaintiff’s injury was caused by carelessness or
lack of skill, Defendant’s failure to obtain a license was not connected with the injury. The mere failure
to be licensed does not impute carelessness. To show negligence, Plaintiff needs to prove that Defendant
treated Plaintiff with lack of skill.

 Tedla v. Ellman. - Greater harm principle: When complying with the statute would put them at greater risk then you don’t have
to follow it.
 Main Point: Strict compliance with the statute might create dangerous results in some cases. The
purpose of the statute was to provide for orderly, certain rules of the road – but does not require an actor
to walk on the unsafe side. This was an excused violation of the statute.

 Barnum v. Williams, Supreme Court of Oregon, 1972

 Defendant driver was over the centerline while rounding a sharp curve going downhill. He struck the
plaintiff. A statute prohibited driving over the centerline. The jury was instructed that the defendant was
liable for negligence per se unless he introduced evidence showing he was acting reasonably under the
circumstances.
 Main Point: A jury can determine that a defendant was acting reasonably even while in violation of a
statute.

Proof of Negligence; the Use of Custom and Expert Testimony

Restatement, 3d., §13 Custom
(a) An actor’s compliance with the custom of the community or of others in like circumstances, is evidence
that the actor’s conduct is not negligent but does not preclude a finding of negligence.
(b) An actor’s departure from the custom of the community, or of others in like circumstances, in a way that
increases risk is evidence of the actor’s negligence but does not require a finding of negligence.

 Custom is observed, substantial requlatiry in conduct, it is not directly compelled by the law, it can actually
be illegal in some cases.

 Custom and usage are properly considered in determining whether sufficient care has been, but custom and
usage are not decisive since the customary way of doing a thing may be negligent and may create a false
standard of care.

 TJ Hooper: Learned hand says there are rare cases where the entire industry is lagging and acting
negligently. You have to prove that the lack of the device caused the injury and you also consider the
burden/cost of using the new technology. Then you would have to look at the elements of negligence, did it
cause the injury, would the burden be excessive, etc.

 Under the standard rubric neither compliance with an industry-wide custom nor the failure to comply with
such a custom is conclusive evidence of due care or of lack of due care. However, it would be rare to find
18
 instances in which a D was found to have failed to conform to customary standard but was nevertheless not
found negligent. To realistically expect to succeed in a case where it was shown that the D failed to conform
to an industry-wide custom the D would have to show that its alternative methods for dealing with a safety
problem were safer than the customary standards of the industry.

 Pitre: Post-incident enhancement of safety are not admissible evidence. They look like admissions of guilt
and for public policy matters we don’t want to stop people from improving safety.

 In modern law, the standard rubric is that evidence of custom is not conclusive on the issue of due care.
However, in activities that are engaged in by practically everyone, customary behavior is, for all practical
purposes, probably conclusive on the issue of due care. Examples: Failing to chacek level of brake fluid
every morning might be dangerous but no one does that and likely a jury will not find that as an impositions
of unreasonable risk.

 Possible exception it’s the standard of conduct expected of certain types of professionals, principally doctors
but also probably lawyers whose profession requires eteh exercise of considerable skill and, more
importantly, of judgment.

 Dempsey v. Addison Crane Co., US District Court, District of Columbia, 1965 - what ought to be done is
fixed by the standard of reasonable prudence, and in law that requirement remains the same whether it is
usually complied with or not. If there is an available inexpensive alternative it can be used.

 C. Malpractice –In an ordinary negligence case it usually doesn’t require an expert. But in malpractice it’s different. The role
of the expert is enhanced because the practice of medicine is less routine.

 The general principles which ordinarily govern in negligence cases also apply in medical malpractice
claims. BUT whereas the conduct of the average layman charged with negligence is evaluated in terms
of the hypothetical conduct of a reasonably prudent person acting under the same or similar
circumstances, the standard applied in medical malpractice cases must also take into account the
specialized knowledge or skill of the defendant.

 It has been generally accepted that where a physician holds himself out as a specialist, he is held to a
higher standard of knowledge and skill than a general practitioner.

 Reasonable care may require more of doctors than what is customarily followed in the profession.

 The failure to tell the patient about the perils he faces is the breach of a duty amounting to negligence.
 The relationship between a doctor and his patient is one of trust calling for a recognition by the
physician of the ignorance and helplessness of the patient regarding his own physical condition. It is
a fiduciary duty. The patient is entitled to rely upon the physician to tell him what he needs to know
about the condition of his own body. The patient has the right to chart his own destiny, and the
doctor must supply the patient with the material facts the patient will need in order to intelligently
chart what destiny with dignity.

 The inquiry as to each item of information which the doctor knows or should know about the
patient’s physical condition is “Would the patient as a human being consider this item in choosing
his or her court of Treatment?”

 The burden of proving that a physician failed to warn is on P who must establish existence of the
following elements of the informed consent doctrine:
 The existence of a material risk unknown to the patient
19
  The failure to disclose it
 The patient would have chosen a different course if the risk had been disclosed
 Resulting injury.
 (Two exceptions: 1) if the patient is unconscious, and 2) if the disclosure would result in such
physical or emotional distress as to put the patient at risk.)

 Medical experts just need to establish the existence of a risk and what should have been disclosed.
Witness testimony can be used to establish other things like whether the patient knew of the risk or if the
avg. person would consider the risk in making a decision. The jury is capable of deciding whether the
doctor did not tell the patient about something that should have been revealed without experts.

 Testimony of the custom of other practitioners is not needed. There is a duty to warn and advise
regardless of the custom.

 Shillkret v. Annapolis Emergency Hospital Association, Court of Appeals of Maryland, 1975

 1. The Standard of Care Applicable to Physicians.
 Strict locality rule: the standard of care exercised by physicians in the defendant’s own
community or locality
 appeared a century ago as an exclusive product of the US to protect the rural and small town
practitioner who are less adequately equipped than the big city counterparts.
 Cons: immunized from malpractice liability any doctor who happened to be a small town
doctor; A conspiracy of silence in the P’s locality could preclude any possibility of finding
expert testimony.
 Similar locality rule: the standard of care observed by physicians of ordinary skill and care in
either the defendant-physician’s locality or in a similar community.
 Pros: Enables the P to obtain expert witnesses from different communities, thus reducing the
likelihood of their acquaintance with the D.
 Cons: Still a low standard of care in some of the smaller communities. Also, it’s hard to
define a similar locality.
 So, the trend continues away from standards which rest solely on geographic considerations.
 The “national” rule: the standard of care is not tied to a particular geographic locality. The
courts in another group of cases has adopted the same standard of care for all physicians. Others
have a national standard for specialists only (This is the position of the ALI). Since the medical
profession itself recognizes national standards for specialists that are not determined by
geography, the law should follow suit.
 Same and similar circumstances rule: This court aligns with Kentucky and holds that a physician
is under a duty to use that degree of care and skill which is expected of a reasonably competent
practitioner in the same class to which he belongs, acting in the same or similar circumstances.
Under this standard, advances in the profession, availability of facilities, specialization or general
practice, proximity of specialists and special facilities, together with all other relevant
considerations, are to be taken into account.

 The standard of care for hospitals should conform to that applied in cases against physicians. Therefore, a hospital is
required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or
similar circumstnaces with the same considerations taken into account.

 Notes: the same or similar communities rules have probably now been abandoned by most jurisdictions in favor of a
national standard where specialists are concerned. But there continue to be cases applying the same or similar
locality rules even to specialists. Although the trend, even as to general practitioners, is clearly away from the same
or similar locality rules, the majority of states may still be applying the same or similar community standards.

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 Helling v. Carey, Supreme Court of Washington, 1974. - Here, reasonable prudence required the timely giving of the pressure
test to the P. Irrespective of its disregard by the standards of the profession, it is the duty of courts to say what is required to
protect patients.

 Miller v. Kennedy, Court of Appeals of Washington, 1974 - The performance of an operation without consent may be an
assault and battery. But the failure to tell the patient about the perils he faces is the breach of a duty amounting to negligence.
The inquiry as to each item of information which the doctor knows or should know about the patient’s physical condition is
“Would the patient as a human being consider this item in choosing his or her court of Treatment?”

 The case made some important observations on the possible exceptions to the physicians duty to disclose:
 1. The patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and
outweighs any harm threatened by the proposed treatment. The physician should attempt to secure a relative’s consent if
possible. But if time does not allow for that the physician is okay to proceed with treatement without consent.
 2. When risk-disclosuere poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a
medical point of view. It is recognized that patients occasionally become so ill or emotionally distraught on disclosure as
to forecloase a rational decision, or complicate or hinder the treatment, or perhaps even pose psychological damage to
the patient. In those cases, the physician is armed withteh privilege to keep that info from the patient. This must be
carefully applied and not just for paternalistic reasons.

 In Canterbury, the court indicated that the action could be brought on either a battery or negligence theory. Cases dealing with
inadequate consent reahter than a total absence of consent seem to prefer negligence. Detering the adequacy of the physician’s
disclosure from the point of view of the patient favors the patient but Using negligence rather than battery requires the P to show
actual injury to recover and that a reasonable patient would have refuse the treatement if he had been adequately advised.

 Other types of malpractice: Attorneys, architects

The use of Circumstantial Evidence: “Res Ipsa Loquitur”

 The general logical requirement for the application of the doctrine of res ipsa loqutor are:
 (a) the accident which injured the P is of a kind that normally does not occur in the absence of someone’s neglginece and
 (b) the D has had a sufficiently close connection with the instrumentality that cuased the injury that it is more likely than not
that he is the negligent somebody.
 Rstmt Section 17: Res Ipsa Loquitur
 The factfinder may infer that the D has been negligent when the accident causing the P’s harm is a
type of accident that ordinarily happens as a result of the negligence of a class of actors of which the
D is the relevant member.

 Class Notes: Res Ipsa is a distinctive form of circumstantial evidence. The accident alone is a prima
facie evidence of negligence. It is used to withdraw an inference that the D is negligent. In a typical Res
Ipsa case there may be 3 things going on:
 1. The action is of a type usually caused by negligence
 2. Actors of the action are usually of the type that includes the D.
 3. Asymmetric access to relevant info. D and P are not equally positioned to have access to relevant
info. – D is in charge of the instrumentaliy of causing injury.

 Where the instrumentality which produced an injury is within the exclusive possession of the person
charged with negligence, and such person has exclusive knowledge of the care exercised in the control
and management of that instrumentality, evidence of circumstances which show that the accident would
not ordinarily have occurred without neglect of some duty owed to the P is sufficient to justify an
inference of negligence and to shift the burden of explanation to the D.

 res ipsa loquitor relieves a P from the burden of producing direct evidence of negligence, but the P must
provide evidence which shows at least probability that a particular accident could not have occurred
without legal wrong by the D. To negative every possibility that the accident occurred in some

21
 extraordinary manner which would exculpate the D is often impossible. We must be satisfied with proof
which leads to a conclusion with probable certainty where absolute logical certainty is impossible.

 Res ipsa loquitor means that the facts present circumstantial evidence of negligence where direct
evidence may be lack, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that
they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be
decided by the jury, not that they forestall the

 If the D proves definitely by uncontradicted evidence that the occurrence was caused by some outside
agency over which he had no control, that it was a kind which commonly occurs without negligence on
the part of anyone, or that it could not have been avoided by the exercise of all reasonable care, the
inference of negligence is no longer permissible, and the verdict is directed for the D. But, if the D
merely offers evidence of his own acts and precautions amounting to reasonable care, it is seldom that a
verdict can be directed in his favor.

 P should not have to identify a single actor as the person who did the alleged negligent act if multiple
could have been negligent. Also not identifying the actual instrument of injury and the exertion of
control of the instrument is okay. The test has become one of right of control rather than actual control
(of the instrument). It should be enough that the P can show an injury resulting from an external force
applied while he lay unconscious in the hospital; this is as clear a case of identification of the
instrumentality as the P may ever be able to make.

Historical Roots
 Byrne Byrne v. Boadle, Court of Exchequer, 1863
 Synopsis of Rule of Law. A plaintiff must persuade a jury that more likely than not the harm-causing event does
not occur in the absence of negligence. The plaintiff does not have to eliminate all other possible causes for the
harm, nor does the fact that the defendant raises possible non-negligent causes for the harm defeat plaintiff’s effort
to invoke res ipsa loquitur (Latin for “the thing speaks for itself). The key is that a reasonable jury must be able to
find that the likely cause was negligence.
 When the doctrine of res ipsa loquitur is invoked, not only may counsel argue that proof of a set of facts, Y, is proof of a
set of facts, Z, but the P is also entitled to have the trial judge specifically tell the jury that they may make this inference.

The modern Doctrine

 George Foltis, Inc. V. City of New York, Court of Appeals of New York, 1941 .
 Analysis: Here, the evidence show the break was not due to an original defect, which careful inspection might have
revealed, in the pipes or in the manner in which the pipes were laid.
 Holding: Even where defendant City of New York did not produce evidence to rebut plaintiff’s
prima facie case established by application of res ipsa loquitur, it was for the jury to determine
whether the inference of negligence should have been drawn.
 Class Notes: D has way more evidence. This res ipsa case is not as strong as the falling barrel case.
The D put in evidence that the pipe was laid correctly and maintained correctly, but it did not
provide evidence of the cause of the break. The court leaves it to the jury whether or not to credit the
D’s evidence. A “complete rebuttal” by D would have to include firm evidence of what caused the
water line break and that it was not due to their negligence but D does not have evidence of this
force. It is sufficient to provide evidence of reasonable care and the jury can decide. Here the jury
found for D, the city.

 Swiney v. Malone Freight Lines, Court of Appeals of Tennessee, 1976 - If the D proves definitely by uncontradicted
evidence that the occurrence was caused by some outside agency over which he had no control, that it was a kind which
commonly occurs without negligence on the part of anyone, or that it could not have been avoided by the exercise of all
reasonable care, the inference of negligence is no longer permissible, and the verdict is directed for the D. The res ipsa case
22
 has been overthrown by showing that it is not a res ipsa case. But, if the D merely offers evidence of his own acts and
precautions amounting to reasonable care, it is seldom that a verdict can be directed in his favor.
Some Special applications of the Doctrine of Res Ipsa Loquitur
 Ybarra v. Spangard, Supreme Court of California, 1944 - The doctrine of res ipsa loquitur has 3 conditions: Prosser on
Torts
 The accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence
 It must be caused by an agency or instrumentality within the exclusive control of the D
 It must not have been due to any voluntary action or contribution on the part of the P.
 Holding: Where a P receives unusual injuries while unconscious, and in the course of medical treatment, all those D’s
who had any control over his body or the instrumentalities which might have caused the injuries may properly be called
upon to meet the inference of negligence by giving an explanation of their conduct. The actual D and actual
instrumentality does not have to be identified.

Negligence: Foundational duties

A. What is duty, and how generally do courts decide it?
 Assuming that the D acted unreasonably, should the court impose a legal obligation to have acted reasonably. This is the duty
inquiry. As the only element of negligence decided in the first instance by the court rather than the jury, duty serves a gatekeeping
function. Duty consists of legal obligations not necessarily moral obligations.
 Prosser: Duty is simply an expression of the sum total of those considerations of policy which lead the law to say that the
particular P is entitled to protection.
 Despite the myriad of factors examined by various jurisdictions, the “essence” of the duty inquiry might be boiled down to 5
general considerations: foreseeability, community notions of obligation, a broad sense of social policy, a commitment to the rule
of law, and a concern for courts’ administrative capability and convenience.
 Class Notes: Duty is the only element in the prima facie case decided by the court instead of the jury, it is a gate keeping function
but it’s a gate that is almost always open when the actor has been in some way negligent.

B. Foundational duty rules.

1. The duty not to create a risk of physical harm

Rstmt (3rd) Section 7
(a) an actor “ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a
risk of physical harm.”
(b) in exceptional cases, when an articulated countervailing principle or policy warrants denying
or limiting liability in a particular class of cases, a court may decide that the D has no duty or
that the ordinary duty of reasonable care requires modification. The exceptions to this general
doctrine have arisen for a mélange of historical and policy reasons.

 The Third Rstmt treats the risk-creation duty rule as a strong default, from which courts should
depart only when faced with an extraordinary countervailing principle or policy, not including
foreseeability.
 Rstmt says foreseeability is better decided in the context of jury-arbitrated, fact-specific elements
like breach and proximate cause. Also, foreseeability typically plays an identical role in breach
and proximate cause. Consideration of foreseeability as part of duty is therefore redundant, and
creates the potential for internally inconsistent rulings.

 In most jurisdictions, the default risk-creation rule is conditioned on some form of foreseeability.
 Most courts condition the risk-creation rule on foreseeability. Courts differ, however, in the
scope of generality with which they describe the object of the foreseeability analysis

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  General Risk-Foreseeability: Whether the D’s actions created some general range of risk or
harm. If the D’s conduct created Any foreseeable risk, then a duty is imposed. In Barker v.
City of Phil this was used to determine breach.
 Specific Risk-Foreseeability: Focuses on the particular injury at issue in the case. If the type
of manner of the harm that actually occurs was not foreseeable.
 Foreseeability of a Class of Risks: Limits inquiry to some class of foreseeable injuries of
which the P’s injury is a member.

 Foreseabilty of P: As of this pringting, 33 courts conditinon the existence of a duty on plaintiff-

foreseeabilyt. Only 4 jurisdictions clearly follow Judge Andrews in holding that P-foreseeability is
solely a matter for proximate cause. 3 of the 4 states reserving P-foreseeabilty to proximate cause
have done so in recent years, each by express adoption of the recently published Restatement (3rd).

 IA, AZ, NB, WI: Have expressly adopted the Restatement view that foreseeability is not a factor in
determining duty and that the risk-creation duty rule should only be departed from in the event of
countervailing principle or public policy. See Note 2 on p. 267.
 AR, MN, NC, SC, SD: Foreseeability is the only relevant factor in difficult duty cases. See Note 2
on p. 267.
 AK, FL, GA, IN: General foreseeability in duty determination. See Note 2a on pp. 273-74.
 CA: Specific foreseeability. See Note 2b on p. 274.
 TX: No social host liability

A. The Risk-Creation Rule as Strong Default

a. Thompson v. Kackinski, Supreme Court of Iowa, 2009 – Trampoline Case
B. The Risk-Creation Rule Conditioned on Foreseeable Harm or Risk

 Foreseeability is to be determined by viewing the facts as they reasonably appeared to the party charged
with negligence, not as they appear based on hindsight.

 Brown v. Kerr, Court of Appeals of Kentucky, 2010

 Issue: Did Roy’s parents owe a duty of care to stop Clayton from shooting Roy
 Rule:
 Whether a party had a duty of care is a question of law. The duty applies only if the injury is
foreseeable. Foreseeability is to be determined by viewing the facts as they reasonably appeared to
the party charged with negligence, not as they appear based on hindsight.
 Whether a harm was foreseeable depends on the foreseeability of such harm, not whether the
specific mechanism of the harm could be foreseen.
 The actor must recognize that his conduct involves a risk of causing an invasion of another’s interest
if a reasonable man would do so while exercising such attention, perception of the circumstance,
memory, knowledge of other pertinent matters, intelligence and judgment as a reasonable man
would have. Knowledge of pertinent matters means knowing: qualities and habits of humans and
animals and other things that are matters of common knowledge at the time int eh community, the
common law, legislative enactments and general customs that apply to the actor.

C. The Risk-Creation Rule Conditioned on a Foreseeable P.

 As of this pringting, 33 courts conditinon the existence of a duty on plaintiff-foreseeabilyt. Only 4

jurisdictions clearly follow Judge Andrews in holding that P-foreseeability is solely a matter for
proximate cause. 3 of the 4 states reserving P-foreseeabilty to proximate cause have done so in
recent years, each by express adoption of the recently published Restatement (3rd).

24
  Palsgraf v. Long Island Railroad, Court of Appeals of New York, 1928. Cardozo – the victim or class of victims must
be foreseeable.

2. Affirmative Duties to Warn, Protect or Rescue

 Duty is only an expression of the sum total of those considerations of policy which lead the law to say that
the particular P is entitled to protection. These policies include: convenience of administration, capacity of
the parties to bear the loss, a policy of preventing future injuries, and the moral blame attached to the
wrongdoer.

 2 of the relevant facts: the nature of the harm likely to result from a failure to exercise due care, and the
relationship that exists between the parties. Such a relationship may be established in a number of ways: by
statute or rule, by contractual or other private relationship, or indirectly or impliedly by virtue of the
relationship between the tortfeasor and a third party

Restatement, 3d., § 18 Negligent Failure to Warn

(a) A defendant whose conduct creates a risk of physical or emotional harm can fail to exercise reasonable
care by failing to warn of the danger if:
1. The defendant knows or has reason to know:
(a) Of that risk; and
(b) That those encountering the risk will be unaware of it; and
2. A warning might be effective in reducing the risk of harm.
(b) Even if the defendant adequately warns of the risk that the defendant’s conduct creates, the defendant
can fail to exercise reasonable care by failing to adopt further precautions to protect against the risk if it
is foreseeable that despite the warning some risk of harm remains.

A. The General Rule: No Duty to Warn, Protect, or Rescue

 One generally owes no duty to warn, protect, or rescue another from a risk created by some other source.

 Restatement (2nd) Section 314: The fact that the actor realizes or should realize that action on his part is
necessary for another’s aid or protection does not of itself impose upon him a duty to take such action

 The common-law has gradually come to impose duties to warn, protect, or rescue others in a variety of
circumstances, known as “affirmative duties.”

 Courts often impose an affirmative duty under one of five circumstances:

 1. Where there was a pre-existing “special relationship” between P and D of a type that commonly
carries with it an obligation of affirmative care
 2. Where the D voluntarily promised aid to or, in fact, came to the aid of the P
 3. Where the D, whether tortuously or not, created the risk from which the P required aid;
 4. Where the D had a special relationship with a 3rd party, who caused harm to the P
 5. Where a statutory duty is found sufficient to justify the imposition of a negligence duty.

 First we address a preliminary matter: How do courts decide whether a case implicates the risk-
creation rule or the rescue rule, a distinction traditionally referred as that between misfeasance and
nonfeasance.

B. Policing the Line Between “Misfeasance” (risk creation) and “Nonfeasance” (Rescue)

 Misfeasance: the actor created a risk of harm and owes a duty of care.
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  Nonfeasance: the actor simply does not act and owes no duty unless there is an affirmative duty.

 Section 7 comment o. of the third restatement offers an approach that is both clear and principled, if
expansive:
 An actor’s conduct creates a risk when the actor’s conduct or course of conduct results in greater risk
to another than the other would have faced absent the conduct. Conduct may create risk by exposing
another to natural hazards, as, for example, when a pilot of an airplane flies the plane into an area of
thunderstorms.
 The notes say: one useful characterization of whether an actor has created a risk as distinguished
from whether a pure affirmative duty is at issue is to consider whether, if the actor had never existed,
the harm would not have occurred. This creates a duty not a breach so saying that but for Henry Ford
I would never have been in a car accident does establish a duty. But the court would dismiss the case
by holding that, as a matter of law, Henry Ford’s act of inventing the automobile did not breach his
duty of reasonable care.

 Price v. E.I. DuPont de Nemours & Co., Supreme Court of Delaware, 2011
 Difficult Cases: Randi W. v. Muroc Joint Unified School District. Randi W.’s school hired him and
allowed it to happen but it seems like they used reasonable care. The duty of his prior employer was
triggered by misfeasance. Did the prior employer have a duty to respond to the inquiry for a
reference? Could they have just said we choose not to comment? can they say nothing? SO there is
no duty to speak. The fact that the prior employer had important info doesn’t matter. But, having
chosen to speak, the duty is to speak with reasonable care. Having chosen to speak they have a duty
to tell the truth and not to tell the partial truth to mislead.

D. Exceptions to the General Rule: Affirmative Duties

1. Affirmative Duty Due to Special Relationship with P

 In most jurisdictions it is clear that the court determines whether a particular category of relationship gives
rise to a duty but in most courts determinations of whether category fits a relationship is determined by the
jury.

 The Third Rstmt Section 40: Duty Based on Special Relationship with Another
 (a) An actor in a special relationship with another owes the other a duty of reasonable care with regard
to risks that arise within the scope of the relationship.
 (b) Special relationships giving rise to the duty provided in Subsection (a) include:
 A common carrier with its passengers
 An innkeeper with its guests
 A business or other possessor of land that holds its premises open to the public with those who are
lawfully on the premises
 An employer with its employees who are: (a) in imminent danger; or (b) injured or ill while at work
and thereby rendered helpless
 A school with its students
 A landlord with its tenants, and
 A custodian with those in its custody if: (a) the custodian is required by law to take custody or
voluntarily takes custody of the other; and (b) the custodian has a superior ability to protect the
other.
 Comment h: implies that this list is not exclusive; i.e. that courts might recognize additional special
relationships under the right circumstances. So none of these categories include Grimes.

26
  Comment e: Although courts are not unanimous on the question. Comment e captures the majority
approach: whether or not a particular relationship supports a duty of care is a question of law for the
court. If disputed historical facts bear on whether the relationship exists, as with a dispute over whether
a P was a paying guest in a hotel or was a trespasser, the factfinder should resolve the factual dispute
with appropriate alternative instructions.

Grimes v. Kennedy Krieger Institute, Inc.,Maryland Court of Appeals, 2001

 Issue: Did KKI owe a duty of care to the subjects in the research study, based on the nature of the
agreements between them and also based on the nature of the relationshiop between the parties.
 Analysis: Here, the relationship of a medical researcher and research study subject not specifically
recognized in MD as giving rise to a duty but given the gap in knowledge between investigators and
participants and the inherent conflict of interest faced by investigators, participants cannot and should
not be solely responsible for their own protection.

2. Affirmative Duty of a Volunteer Rescuer

Restatement 3d., §44 Duty to Another Based on Taking Charge of the Other
(a) An actor who, despite no duty to do so, takes charge of another who reasonably appears to be:
1. Imperiled; and
2. Helpless or unable to protect himself or herself
Has a duty to exercise reasonable care while the other is within the actor’s charge.
(b) An actor who discontinues aid or protection is subject to a duty of reasonable care to refrain from
putting the other in a worse position than existed before the actor took charge of the other and, if the
other reasonably appears to be in imminent peril of serious physical harm at the time of termination, to
exercise reasonable care with regard to the peril before terminating the rescue.

 Courts have been slow to recognize a duty to render aid to a person in peril. Where such a duty has been
found, it has been predicated upon the existence of a special relationship between the parties; in such a case,
if D knew or should have known of the other person’s peril, he is required to render reasonable care under
all the circumstances.

 Duty not to increase the risk during rescue: Shhould a rescuer’s efforse increase the risk to the helpless
person, the rescuer owes a duty of care (1) not to have do so unreasonably and (2) to warn, protect, or rescue
the person from that increased risk.

 Duty based on promise to rescue: Rstmt(2nd) 323 and 324A says there is liability in tort for negligent failure
to perform a gratuitous undertaking if there is at least some partial performance and the failure to perform
increases the risk of harm or leads to harm because of reliance on the promise.

 Interference with rescue: A D also owes an affirmative duty if either the promise to rescue or the
commencement of rescue efforts might have interfered with other potential rescuers.

 Duty to continue rescue: This basic rule is that there is no duty to continue a rescue effort, even if doing so
would pose no risk to the rescuer. Section 44 (b) of the Rstmt gives exceptions to the rule.

 Promises: In some courts, a promise of aid alone might be sufficient to create a duty where a D should have
expected the P to rely on such a promise.

 Farwell v. Keaton, Supreme Court of Michigan, 1976 – 2 guys get beat up and his friend dies - once you
undertake to aid another you are under an obligation to act reasonably in doing so (rstmt Section 44) and
you have a duty to aid based on special relationships.
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 3. Affirmative Duty of Those Whose Conduct has injured or created a risk of injury to Others

 Restatement, 3d., §39 Duty Based on Prior Conduct Creating a Risk of Physical Harm
 When an actor’s conduct, even though not tortious, creates a continuing risk of physical harm of a type
characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the
harm.
 Continuting duty: Where the risk that he D created was of a continuing nature, the duty to protect against that riskcontinues.
Exmample Tresemer v. Bare: Doctor implanted device in patient.

 Maldonado v. Southern Pacific Transportation Company, Court of Appeals of Arizona, 1981- RR workers injure
Maldonado and fail to rescue.
 the 2nd restatement mentions helpless but the 3rd drops the helpless part. If your act creates risk of injury you have a duty to render
aid whether or not the act was intentional or negligent.
 Restatement Second Section 322 now Section 39 of 3 rd Rstmt: If the actor knows or has reason to know that by his conduct,
whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further
harm, the actor is under a duty to exercise reasonable care to prevent further harm.
 Comment a: the rule stated in this Section applies not only where the actor’s original conduct is tortious, but also where it is
entirely innocent. If his act, or an instrumentality within his control, has inflicted upon another such harm that the other is
helpless and in danger, and a reasonable man would recognize the necessity of aiding or protecting him to avert further harm,
the actor is under a duty to take such action even though he may not have been originally at fault. This is true even though the
contributory negligence of the person injured would disable him from maintaining any action for the original harm resulting
from the actor’s original conduct.
 Comment b. the words “further harm” include not only an entirely new harm due to the dangerous position in which the other
has been placed by the actor’s tortious act but also any increase in the original harm caused by the failure to give assistance…
and any protraction of the harm which prompt attention would have prevented.

4. Affirmative Duty Due to Special Relationship With Third-Party

 Restatement, 3d., §41 Duty to Third Persons Based on Special Relationship with Person Posing Risks
(a) An actor in a special relationship with another owes a duty of reasonable care to third persons with
regard to risks posed by the other that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in subsection (a) include:
1. A parent with dependent children,
2. A custodian with those in its custody,
3. An employer with employees when the employment facilitates the employee’s causing ham to third
parties, and
4. A mental-health professional with patients.

 Employer: Maldonado – the workers created a risk under Section 39 but the Railraod company might be
liable under Section 41.

 Parent: Singer v. Marx: Timmy poses risks to other children. Timmy is a dependent child to his parents.
Timmy is clearly a dependant. Brown v. Kerr: Bfast of champs. Son cause harm to 3rd party. Is he really a
dependent under

 Thompson v. County of Alameda, Supreme Court of California, 1980 – For public policy and practical reasons
 Rule: In considering the existence of “duty” in a given case several factors require consideration:
 the foreseeability of harm to the P,
 the degree of certainty that the P suffered injury,
 the closeness of the connection between the D’s conduct,
 the policy of preventing future harm,

28
  the extent of the burden to the D and
 consequences to the community of imposing a duty to exercise care with resulting liability for breach,
 and the availability, cost, and prevalence of insurance for the risk involved.
 When public agencies are involved, additional elements include the extent of the agency’s powers, the role
imposed upon it by law and the limitations imposed upon it by budget.

C. No-Duty Based on Public Policy

 Courts sometimes revert to a public policy analysis to reach a no-duty holding even where an existing duty rule might
otherwise apply.
 It is still the responsibility of the courts, in fixing the orbit of duty, to limit the legal consequences of wrongs to a controllable
degree and to protect against crushing exposure to liability. In fixing the bound of that duty, not only logic and science, but
policy play an important role.

 Strauss v. Belle Realty Company: Court of Appeals of New York, 1985 – Floodgates problem
 Analysis: While limiting recovery to customers in this instance can hardly be said to confer immunity from negligence
on Con Edison, permitting recovery to those in P’s circumstances would, in our view, violate the court’s responsibility
to define an orbit of duty that places controllable limits on liability (this is the public policy argument). Con Edison is
not answerable to the tenant of an apartment building injured in a common area as a result of Con Edison’s negligent failure
to provide electric service as required by its agreement with the building owner.

 Graff v. Beard, Supreme Court of Texas, 1991 - the common law's focus was on the drinker as the person
primarily responsible for his own behavior; the court did not impose a duty on a social host who made
alcohol available to an adult who the host knew would be driving.
 HOLDING: The court held that there was no common law duty on a social host who made alcohol
available at a party to a guest who the host knew would drive.
 ANALYSIS: The court determined that the legislature had declined to make a social host so
accountable and therefore it would not create such a duty either. The court decided that it was far from
clear that a social host could reliably recognize a guest's level of intoxication and that guests may not
respond to a host's attempts to prevent the guests from driving. The court held that the drinker was the
person responsible for his own behavior and therefore appellants were not responsible for appellee's
injuries.
 RULES: In the absence of a relationship between the parties giving rise to the right of control, one
person is under no legal duty to control the conduct of another, even if there exists the practical ability to
do so.
 Dram Shop Acts: Most states have adopted legislation, known as “dram shop acts” that impose liability
on commercial businesses for serving alcohol to intoxicated patrons or for serving patrons to the point of
intoxication. These statutes vary on a number of grounds including whether D’s may be liable to third
parties injured by the patron, and whether the D must have known that the patron was planning to drive
a car.

Chapter 5: Causation

A. Cause in Fact – The But-for Test and the Notion of “Substantial Cause”
 General
 The P, as part of his prima facie case, must prove that the D’s negligence “caused” his injuries. This is
usually broken down into 2 inquiries: was the D’s conduct the cause in fact of the P’s injures and if so,
was it the proximate cause of the P’s injuries. Rstmt 3rd breaks it up into factual case and scope of
liability.
 Cause in Fact: But for the D’s conduct, the P would not have suffered his injuries. In the real world
this is not always provable or even possible; therefore, event X can be established as the cause in
fact of event Y if

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  There is a sufficiently high statistical correlation between the occurrence of events of type X and
the occurrence of events of type Y, and if
 In the particular case under consideration, there is no other plausible explanation of the
occurrence of event Y that does not require the occurrence of even X.
 General Conclusion: a particular event will be a cause in fact of another event if (a) it can be
described as part of a number of antecedent event which culminate in the event under consideration
and (b) the absence of this particular antecedent event would diminish the probability of the
occurrence of the consequent event.
 Class Notes: It is not necessary for the P to establish a sole cause of harm. It is enough that an actor’s
conduct fell below the standard of care and was a cause of the injury. Think in “but for” terms. But for the
conduct of D the harm would not have occurred.

 Rstmt (3rd) Section 26 Factual Cause

 Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause
of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a
factual cause of harm under Section 27.

 Rsmt (3rd) Section 27: Multiple sufficient Causes

 If multiple acts occur, each of which under section 26 alone would have been a factual cause of the
physical harm at the same time in the absence of the other act is regarded as a factual cause of the harm.

 Rstmt (3rd) Section 28:

 (a) Subject to Subsection (b) the P has the burden to prove that D’s tortious conduct was a factual cause
of the P’s harm
 (b) When the P sues all of multiple actors and proves that each engaged in tortious conduct that exposed
the P to a risk of harm and that the tortious conduct of one or more of them caused the P’s harm but the
p cannot reasonably be expected to prove which actor or actors caused the harm, the burden of proof,
including both production and persuasion, on factual causation is shifted to the D.

 Section 876 of Rstmt (2nd) Persons Acting in Concert

 For harm resulting to a third person from the tortious conduct of another, a person is liable if he
 Orders or induces such conduct, knowing of the conditions under which the act is done or intending
the consequences which ensue, or
 Knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or
encouragement to the other so to conduct himself of
 Gives substantial assistance to the other in accomplishing a tortious result and his own conduct,
separately considered, constitutes a breach of duty to the third person.

 In Stubbs v. City of Rochester the court held that the P need not disprove every other possible cause and that
P’s circumstantial evidence of causation was sufficient to allow a jury to infer causation.

 when 2 or more persons by their same person are possibly the sole cause, and the P has introduced evidence
that the one of the 2 person or the one of the same person’s 2 acts is culpable then the D has the burden of
proving that the other peron, or his other act, was the sole cause of the arm. The injured party should not be
denied redress simply because he cannot prove ho much damge each did, when it is certain that between
them they did all; let tem be the ones to apportion it among themselves.

 This rule should apply whever the harm has plural causes and not merely when they acted in conscious
concert. D’ are in a far better position to offer evidenc to determine which one cause the injury. See Ybarra.

30
 Loss of Chance is used in medical malpractice when a P can prove by a preponderance of the evidence that
the reduced probability of survival was caused by P’s negligence. Modern technology and big data show
that probabilities of survival can now be calculated with some certainty. The decedents in these kinds of
cases are already ver ill and would have a less than 50% chance of survival before the D’s ngeglgient care.
Most states have adopted loss of chance. The rstmt 3rd recognizes the doctrine but takes no position on it.
Some states have rejected it.

 The Cases
 Kingston v. Chicago & Northwest Railway Co. Supreme Court of WA, 1927 – when the negligent acts
of two tortfeasors result in injury they are both liable. If the injury would have occurred without any
negligence then the D is not liable even though his negligent act contributed (so had the second fire been
natural he would not have been liable). Even if they know the cause of the other fire D is liable.
 Class Notes: Causally relevant factors like oxygen (which is necessary for fire) are referred to as
conditions in comment d of section 26 of Rstmt. What if D says the dry weather are the cause of the
fire. This was the first time there had been a drought in Wisconsin in the winter. They could say the
didn’t breach their duty because the custom was to not use spark guards.
 Cause in the law is not the same thing as a sequence of events. Just showing that one thing
happened after another is not enough. Abbey is speeding down the highway, Ben is driving and
swerves around a large brown paper in the road so he swerves and Abbey hits him. Then you
could say her speeding and his swerving are both causes. If she hadn’t been speeding she could
have avoided him hitting him. However if Abbey had slowed down before reaching Ben and
then she hits him, just because her speeding got her there at the right time does not mean it’s a
cause. Just because a sequence of events ends up with an injury doesn’t make it a cause.
 Suppose D did a bad job putting out his campfire and caused a small fire but the RR fire was
huge compared to it. It “destroyed the identity of the little fire.” Had there not been the other fire,
the little campfire would not have caused any damage. But maybe the little fire was the last thing
that put it over the top like the last drink that made the guy so drunk he killed someone while
driving. But the oxygen and dry weather won’t be enough to to eliminate the cause in fact of D’s
action.
 Preemptive cause: Suppose a train is carrying explosives and they are negligently thrown off into
the fire that was already going. Would this train be another D? This is like a negligent driver who
runs over an already dead body. If the second train causes damage that is distinctive, as in they
hit a differnet part of the property or created a crater thye could be liable but otherwise tort law
will have to stomach the lucky train.

 Kramer Service v. Wilkins, Supreme Court of Mississippi, 1939 – guy at hotel gets hit by large thing
and develops cancer.
 Rule: Proof that a result was possibly caused by a past event is not enough to take the question to a
jury. It is not enough that the negligence and the injury coexisted but the injury must have been
caused by the negligence.

 Daly v. Bergstedt, Supreme Court of Minnesota, 1964: The legal concept of causation is not always the
same as the concept of causation used in scientific inquiries
 Rule: Inference, if rational and natural, which follow from a sequence of proven events, may be
sufficient to establish causal connection without any supporting medical testimony.
 Analysis: A question of fact as to causation was presented which question was properly submitted to
the jury. Just because the proof is uncertain or speculative does not mean the jury’s verdict cannot
stand.
 Notes: Many authorities say the law is only concerned with establishing whether the D’s conduct
was a “substantial cuase” of an even and that this is not the same thing as est. that the D’s conduct
31
 was THE cause of the event. Howver the Rstmt (3rd) rejected the substantial factor. This problem
arises when the scientific evidence est that there is a high correlation between say a substance and a
disease but does not conclusively show that the P’s injuries were cuased by theat substance rather
than some other possible cause. In the toxic tort context, most courts requires the P to prove both
general and specific causation by a preponderance of the evidence.

 Summers v. Tice, Suprem Court of Cali, 1948 - Once P shows he was injured due to negligence, justice
requires that he be compensated even if we are unsure exactly who is guilty so the burden shifts to D’s
to prove guilt or innocence.
 Rule: when 2 or more persons by their same person are posilby the sole cause, and the P has
introduced evidence that the one of the 2 person or the one of the same person’s 2 acts is culpable
then the D has the burden of proving that the other peron, or his other act, was the sole cause of the
arm. This rule should apply whever the harm has plural causes and not merely when they acted in
conscious concert. D’ are in a far better position to offer evidenc to determine which one cause the
injury. See Ybarra.
 Class Notes: there’s judgment against both D’s with one judgment amount. This means it’s up to the
P to decide what to do next. If one D is wealthier he could choose to make him pay the whole thing
or a larger percentage. The court says there was definitely negligence. Both D’s shot at the same
quail at around the same time in the general direction of the P and they knew where he was so they
clearly acted with less than ordinary care. Both are co-authors of the same situation and the harm can
justifiably be ascribed to both of them. Now the burden shifts to D’s to prove themselves, just like
Ybarra.
 What if Simonson hated P and intentionally shot at him? So they both acted wrongfully and
injury follows but now there may be punitive damages so why should Tice have to pay so much
when he was only negligent. They may apportion more of the damages to Sumers.

 Loss of Chance: Suppose a person is already subject to some particular risk, say permanent paralysis or the
development of cancer. The D, by his admittedly negligent conduct, increases that risk, a situation which
could analytically be described as the loss of chance to avoid permanent paralysis or cancer. For what
damages should the D be liable? The problem could look at from the point of view of either damage theory
or of causation. The practical problem is determining how to value the loss of a chance in monetary terms.
 Matsuyama v. Birnbaum, Supreme Judicial Court of Mass., Norfold, 2008 – Loss of Chance is used in
medical malpractice when a P can prove by a preponderance of the evidence that the reduced probability
of survival was caused by P’s negligence. Modern technology and big data show that probabilities of
survival can now be calculated with some certainty.
 Rule/Analysis: The probability of survival is part of the patient’s condition and when a physician’s
negligence diminishes or destroys a patient’s chance of survival, the patient has suffered real
injury.
 Damages: most widely used approach is the proportional damages approach under which damages
are measured as a percentage probability by which the D’s tortious conduct diminished the
likelihood of achieving some more favorable outcome. The factfinder must do the following
calculation:
 1. Total amount of damages for wrongful death or injury due to malpractice, ie. The full amount
of compensatorv damages for the decedent’s death or injury
 2.The patient’s chance of survival or cure immediately preceeding (but for) the malpractice
 3. The chance of survival or cure that the patient had as a result of the malpractice
 4. Subtract the amount derived in step 3 from 2
 5. Then multiply the amount in step 1 by the percentage calculated in step 4 to derive the
proportional damages award for loss of chance.
 The evidence to calculate these amounts must come from experts not jury members.

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  Notes: Many courts and observers have distinguished between cases trying to establish some historical
fact in which traditional standards of proof by a preponderance of the evidence are appropriate and cases
in which, as in Matsuyama, the issue is what would have happened but for the negligence of the D. The
American cases seem to be largely confined to medical malpractice.

B. Proximate Cause
 Restatement Section 29: Limitations on Liability for Tortious Conduct: An actor’s liability is limited to
those harms that result from the risks that made the actor’s conduct tortious.

 Restatement Section 30: Risk of Harm Not Generally Increased by Tortious Condut: An actor is not liable
for harm when the tortious aspect of the actor’s conduct was of a type that does not generally increase the
risk of that harm.

 Unforeseeable Harm: Section 31: When an actor’s tortious conduct causes harm to a person that, because of
a preexisting physical or mental condition or other characteristics of the person, is of a greater magnitude or
different type than might reasonably be expected, the actor is nevertheless subject to liability for all such
harm to person.

 The section makes it clear that the unexpected magnitude of the harm that ensues from an actor’s
negligence does not in any way limit liability. The fact that the harm suffered is of a different type than
might reasonably be expected likewise does not limit liability. This does suggest something of a residual
direct cause test, the extent of which depends upon what one means by “type.” But the Reporter’s Note
to Section 31 make it clear that, when it speaks of compensation for a “different type” of harm, it is only
talking about a different type of unexpected physical or emotional harm when the reason the actor was
negligent was his creating a risk of some physical harm to that person. By parity of reasoning the same
considerations limiting what is meant by compensation for different type of harm should apply when the
only reason the actor was negligent was his creation of a risk of damage to the property of the P.

 Direct Cuase: the first 2 restatements seemed to have adopted a direct cause approach and also appear to
give the court an escape when the accident, although foreseeable, might be considered to be a bizarre one.
Direct cause considers only causation, it does not matter whether it was foreseeable.

 Harm within Risk The third restatement Section 29 make it clear that it adopts a foreseeability test for
negligence and that the harm must result from the risk that made the actor’s conduct negligent.
Cases:

 In Re Arbitration between Polemis and Furness, Withy & Co., Ltd., Court of Appeal, 1921 – Just because
the actual damage was not foreseeable if any damage was foreseeable then you are liable. Seems to be a
spatial limit In Polemis they said if the D is guilty of negligence, he is responsible for all the consequences
whether reasonably foreseeable or not but it also introduced the concept that negligent actors are not
responsible for consequences which are not “direct.” Just because the actual damage was not foreseeable if
any damage was foreseeable then you are liable. Seems to be a spatial limit.

 Palsgraf v. Long Island Railraoad, Court of Appeals of NY, 1928

 Andrews Dissent in Palsgraf: He accepts Polemis. It does not matter if the damage is unusual,
unexpected, unforeseen, and unforeseeable. BUT the damages must be so connected with the
negligence that the latter may be said to be the proximate cause of the former. It’s unclear where
to draw the line for proximate cause. You use common sense. The proximate cause must be at least
be, something without which the event would not happen. Whether there was a natural and continuous
sequence between cause and effect. Was is a substantial factor? Was there a direct connection or too
33
 many intervening causes? Is the cause likely, in the usual judgment of mankind, to produce the result? Is
the result too remote from the cause? Consider remoteness in time and space. Foreseeability of injury
can be an indication of the proximate cause.
 Andrews gives a hypothetical: the chauffer negligently collides with another car which is filled with
dynamite, although he could no know it, an explosion follows and injures random people. A walking on
the sidewalk, B sitting in a nearby window, C is cut by flying glass a block away. Also a nurse maid
drops a baby 10 blocks away. C will not recover, A would recover because no reasonable jury would not
find for A, B is a question for the jury. If the explosion causes Rusty to bark which causes B to fall out
of the window, then Rusty’s bark is a direct cuase which causes injury to B but Rusty’s barks is breaking
the chain of causation.
 Harm within risk: if you hand a 9 year old a gun, the focreseeable risk is that she will shoot someone
so if she drops the gun on her toes, he is not liabili for the broken toe.

 Overseas Tankship (U.K) LTD. V. Mort’s Dock & Engineering Co., LTD. (The Wagon Mound #1), Privy
Council, 1961- A tortfeasor is responsible for the reasonably foreseeable or probable consequences of his
negligent acts. In this case, the test for liability for fire is foreseeability of injury from fire. The “direct”
consequence test leads to nowhere but the never-ending and insoluble problems of causation. The essential
factor in determining liability is whether the damage is of such a kind as the reasonable man should have
foreseen.

 Hughes v. Lord Advocate, House of Lords, 1963 - foreseeable injuries or harm that are caused in a unique,
unforeseeable manner are still considered within the scope of risk a defendant has a duty to protect plaintiffs
from. The proximate cause limit here is the “type of injury.” Three different judges agreed that the
Plaintiff’s burns were foreseeable, even though the manner in which they occurred was not.

 Doughty v. Turner Manufacturing Co., Court of Appeal, 1963 –The accident was not foreseeable. This was
not a risk of which the Ds at the time of the accident knew, or ought to have known. In causing, or failing to
prevent, the immersion of the cover in the liquid, Ds were not in breach of a duty of care owed to P, for this
was not an act or omission which they could reasonably foresee was likely to cause him damage. The D’s
duty owed to P is only to prevent foreseeable risk, that is of splashing. His duty was to avoid knocking the
cover into the liquid or allowing it to slip in in such a way as to cause a splash which would injure the P.
Failure to avoid knocking it into the liquid, or allowing it to slip in, was of itself no breach of duty to the P.
The reasoning in Hughes v. Lord Advocate cannot be extended far enough to cover this case. The D’s
cannot be held negligent.

 Petition of Kinsman Transit Co., US Court of Appeals, 2nd Circuit, 1964: Liability is imposed when
consequences of the same general sort as expected occur, regardless of the extent. Foreseeability of the harm
matters, not the mechanism causing the harm. Harm within the risk, which works with the Restatement, 3d.,
§29 risk standard.
 Judge Friendly said there was a high level of foreseeability for a small harm. And although a greater
harm occurred. It was the same type of injury. A risk of the smaller damage is of the same type as the
damage that was foreseeable.

 The Wagon Mound 2, Privy Council (1966) – p. 443

 Owners of the ship that was docked at the wharf were able to recover from the tanker that was leaking
oil.
 Main Point: Looks at foreseeability as a spectrum include risk, gravity of risk, and cost of precaution
(almost like Carroll Towing reasoning).
 Held. If a reasonable man can foresee and prevent the risk, then he is liable for the foreseeable damages.
 Discussion. Based on the trial court’s findings, it is true that the Wagon Mound’s operators would have
foreseen that oil spilling into the harbor had a possibility of causing a fire, but would have only a very
34
 low probability. A fire could only result under exceptional circumstances. However, because the risk of
fire was foreseeable, the defendants bore a duty to prevent the risk, even if the risk was a remote
possibility.

C. Intervening Causes as Superseding Causes

 Intentional torts = superseding cause

 Look at the sequence of events – did the intervening cause break the causal sequence between the
original tortfeasor’s conduct and the injury?

 Important to distinguish between intervening/superseding cause situations and joint tortfeasor situations
or situations like Summers v. Tice.

 Where the type of intervening negligent act is at all foreseeable, even if the specific intervening act is
not, the original tortfeasor will normally be held liable for the P’s injuries. Where the intervening
negligence is considered unforeseeable, the originally negligent party will usually escape liability.

 The grossness of the intervening negligence will be a factor considered by the courts in determining its
foreseeability. The more reckless the intervening act is, the more likely it is to be held to be
unforeseeable and to lead to a finding that the original negligence was not the proximate cause of the P’s
injuries.

 The greater moral culpability of the intervening party is probably also a factor that might lead to
assigning sole causal responsibility to him.

 Acts of God: To the extent that there are considered reasonably foreseeable, they will not serve to cut off
the responsibility of a negligent defendant.

 Aggravation of Injures: Generally one who negligently injures another is also responsible for any
aggravation of injuires suffered by the P during the course of medical treatment, even if the injuries are
aggravated owing to the negligence of the attending physicians.

 Rescuers: Danger invites rescue so the original tortfeasor has been held liable for injuries suffered by
those going to the rescue of those impereiled or injured by the original tortfeasor. The liability will even
attach if the interest threatened is a property interest and even if the person threatened or injured is
responsible for his own predicament. Whenteh injured rescuer is a so-called “professional rescurer” such
as a fireman or pocieman, however, there are a number of cases denying recovery.

 Restatement (3rd) Section 34: Intervening Acts and Superseding Causes:

 When a force of nature or an independent act is also a factual cause of harm, an actor’s liability is
limited to those harms that result from the risk that made the actor’s conduct tortious. Comment e
disucsse unforeseeable, unusual, or highly culpable acts, simpley states that “when these other
causes-intervening acts- are unforeseeable, unusual, or highly culpable they may bear on whether the
harm is within the scope of the risk.”

 Restatement, 2d., §439 Effect of Contributing Acts of Third Persons When Actor’s Negligence is
Actively Operating
 If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm
to another, the fact that the active and substantially simultaneous operation of the effects of a third

35
 person’s innocent, tortious, or criminal act is also a substantial factor in bringing about the harm
does not protect the actor from liability.”

 Glasgow Realty Co. v. Metcalfe, Court of Appeals of Kentucky, 1972 – kid pushing on glass but hotel
was negligent . Where the type of intervening negligent act is at all foreseeable, even if the specific
intervening act is not, the original tortfeasor will normally be held liable for the P’s injuries. Where the
intervening negligence is considered unforeseeable, the originally negligent party will usually escape
liability. The grossness of the intervening negligence will be a factor considered by the courts in
determining its foreseeability. The more reckless the intervening act is, the more likely it is to be held to
be unforeseeable and to lead to a finding that the original negligence was not the proximate cause of the
P’s injuries. The greater moral culpability of the intervening party is probably also a factor that might
lead to assigning sole causal responsibility to him.

 Brauer v. NY Central & Hudson River Railraod, Court of Errors and Appeals of NJ, 1918 - The act of a
third person intervening and contributing a condition necessary to the injurious effect of the original
negligence will not excuse the first wrongdoer, if such act ought to have been foreseen.

Chapter 6: Negligence: Special Duties

The role of affirmative duty tends not be focused on the the entrant to land cases but it’s important. You must
first ask if there is a duty.

 Restatement Section 51: General duty of Land Possessors

o Subject to Section 52, a land possessor owes a duty of reasonable care to entrants on the land with
regard to:
 Conduct by the land possessor that creates risks to entrants on the land;
 Artificial conditions on the land that pose risks to entrants on tehlad
 Natural conditions on the land that pose risks to entrants on the land; and
 Other risks to entrants on the land when any of the affirmative duties providing Chapter 7 is
applicable.

o Comment A. This Section rejects the status-based duty rules and adopts a unitary duty of reasonable
care to entrants on the land. At the same time Section 52 reflects a policy-based modification of the
duty of land possessor to those on the land whose presence is antithetical to the rights of the land
possessor or owner.

o Class Notes: Rstmt adopted Cali Law which adopted a reasonable care for all entrants of all status.
The reasonable care depends on the circumstances. Duty of reasonable care for all entrants except
flagrant trespassers but they don’t define what a trespasser is.

o Flagrant trespassers are not the same as regular trespassers.

 Restatement (3rd) Section 52: Duty of Land Possessors to Flagrant Trespassers: different than a normal
trespasser.
o The only duty a land possessor owes to flagrant trespassers is the duty not to act in an intentional,
willful, or wanton manner to cause physical harm
o Notwithstanding Subsectin (a), a land possessor has a duty to flagrant trespassers to exercise
reasonable care, if the trespasser reasaonbly appears to be imperiled and
 Helpless; or
 Unable to protect him or herself

36
 A. Special Duty Rules Depending on the type of P or D.
 Visitors statues:
 Invitees: visitors with permission to enter and in whose visit the landowner or occupier has a “material
interest” or Visitors invited as a member of the public for a purpose for which the land is held open to
the public. Examples: person shopping at a business or the person visiting a place of workship or other
venue open to the public.
 Landowner Duty: strongest affirmative duty – the duty to use reasonable care to warn, protect, or
rescue invitees from dangerous conditions about which the landowner knew or should have known.
 Licensees: visitors with permission to enter but in whose visit the landowner has no material interest.
Example: a social guest
 Landowner Duty: typically defined as the duty to use reasonable care with respect to conditions of
which the landowner is aware. In BK they said they owed licensees a duty to make safe dangers of
which BK is aware.
 In Ohio the duty owed to licensee was a duty to refrain from willful injury or wantonly exposing
them tto danger which is a much lower bar.
 Trespasser: an entrant without permission
 Landownder duty: no duty other than a duty not to intentionally, or wantonly or willfully injure
trespassers. The only duty is not to commite an intentional tort against the trespassers.

 Over time, these traditional duty rules have accumulated a variety of subtle exceptions and sub-rules. For
this and other reasons, many courts have abandoned the traditional tripartitie duty approach in favor of a
unitary duty of reasonable care in the maintenance of their premises for the protection of lawful visitors.
occupiers of land are not insurers of their premises. They should not undergo unwarranted burdens in
maintaining their premises.

 Duty to rescue a person injured on the land: Regardless of a visitor’s status, should the visitor become
injured on land such that the visitor cannot aid herself, the landowner owes an affirmative duty of
reasonable care to rescue the visitor.
 Restatement (3rd) Section 52: Duty of Land Possessors to Flagrant Trespassers: different than a normal
trespasser.
 (a) The only duty a land possessor owes to flagrant trespassers is the duty not to act in an intentional,
willful, or wanton manner to cause physical harm
 (b) Notwithstanding Subsectin (a), a land possessor has a duty to flagrant trespassers to exercise
reasonable care, if the trespasser reasaonbly appears to be imperiled and
 Helpless; or
 Unable to protect him or herself

 Risk- Creating Activities: A landowner or occupier owes invitees and licensees a duty to conduct risk-
creating activities with reasonable care. Class Notes: If a driver is speeding through the parking lot
negligently, ad hits a person taking his trash to BK’s dumpster. You could say it was a risk creating activity
and he owed a duty of reasonable care to licensees and invitees.

 Firefighters Rule: In some jurisdictions, the so-called “firefighter rule” bars liability for injuries sustained
as a result of the negligence that gave rise to their emergency duties. Other jurisdictions, rescue personnel
are merely treated as licensees.

 Attractive Nuisance: The Ohio Supreme court adopted the “attractive nuisance” doctrine of the
Restatement of Torts 2d Section339 in this case, which provides that “A possessor of land is subject to
liability for physical harm to children trespassing thereon caused by an artificial condition upon land if:
(a) the possessor knows or has reason to know that children are likely to trespass on that place;
37
 (b) the possessor knows or has reason to know the condition will involve unreasonable risk of death or
serious bodily harm to such children;
(c) because of their youth the children do not discover the condition or realize the risk involved
(d) the risk of harm to the children outweighs the possessor’s utility of maintaining the condition and his
burden of eliminating it;
(e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the
children.”
Also, while the attractive nuisance doctrine is not ordinarily applicable to adults, it may be successfully
invoked by an adult seeking damages for his or her own injury if the injury was suffered in an attempt to
rescue a child from a danger created by the D’s negligence.

 Duty to patrons from criminal acts of third parties: Although business owners are not insurers of their
patrons’ safety, they do have a duty to implement reasonable measures to protect their patrons from criminal
acts when those acts are foreseeable. Determining when a crime is foreseeable is therefore a critical inquiry.
There are 4 approaches fused for foreseeability:

 1. Specific Harm Rule: No duty unless landowner is aware of a specific, imminent harm about to befall
patrons. – outdated and not used
 2. Prior similar incidents test: foreseeability is established by evidence of previous crimes on or near the
premises. Courts consider the nature and extent of the previous crimes, as well as their recency,
frequency, and similarity to the crime in question. – this can lead to arbitrary results
 3. Totality of the circumstances test – most common. Takes into account additional factors such as the
nature, condition, and location of the land, as well as any other relevant factual circumstances bearing on
foreseeability. Tends to place a great duty on business owners to foresee the risk of criminal attacks on
their property and has been criticized as being too broad a standard.
 4. Balancing test – used in Cali and Tenn. It seeks to address the interests of both business proprietors
and their customers by balancing the foreseeability of harm against the burden of imposing a duty to
protect against the criminal acts of third persons. – Adopted by LA. The greater the foreseeability and
gravity of the harm, the greater the duty of care that will be imposed.” The foreseeability and gravity of
the harm are to be determined by the facts and circumstances for the case. The most important factor to
be considered is the existence, frequency, and similarity or prior incidents of crime on the premises, but
the location, nature and condition of the property should also be taken into account. Under this test, the
high degree of foreseeability necessary to impose a duty to provide security, will rarely, if ever, be
proven in the absence of prior similar incidents of crime on the property.”

 Cases:
 Cochran v. Burger King Corporation, Missouri Appellate Court, 1996 – Deviation (trespass) from an
invitation (license) occurs when the entrant acts in a manner inconsistent with the scope of an
express or implied invitation, thereby demonstrating a change in relationship between that person
and the possessor.
 Class Notes: Is it a defense if BK can prove they don’t own the property? No, if BK is leasing
the land, they occupy the land, control the land and they should be liable for injury on it. When
he was crossing the lot to go to Hardy’s he was a gratuitous licensee because the lot was open to
the public. What if there is a sign that says patrons only? We would probably assume that meant
parking for patrons only but if it specifically bans walkers is he a licensee until he gets to the
sign and reads it? BK put a physical fence around the dumpsters to discourage traffic so when he
entered the gate he became a trespass. People who use BK’s dumpsters for their own trash are
also trespassers. Why does P not recover here? He left the grey area of licensee and became a
trespasser when he started to climb the wall. If there hadn’t been a fence you might be able to
argue that there was implied permission to enter the dumpster area and the BK would have taken
precautions to make the area safe in the middle of the night so he was a licensee but maybe not.
38
 Nelson v. Freeland, Supreme Court of North Carolina, 1998 - NC eliminates the distinction between
licensees and invitees by requiring a standard of reasonable care toward all lawful visitors. Owners
and occupiers of land are not insurers of their premises. They should not undergo unwarranted
burdens in maintaining their premises. Rather, they only have duty to exercise reasonable care in the
maintenance of their premises for the protection of lawful visitors. They still retain a separate
classification for trespassers.
 The trichotomy was developed by a society obsessed with land. The trichotomy was created to
restrict the jury’s power because juries were comprised mainly of potential land entrants who
would most likely act to protect the community at large and thereby reign in the landowner’s
sovereign power over his land. The trichotomy allowed the judge to take the case from the jurt
based on legal rulings or by forcing the jury to apply the mechanical rules of the trichotomy
instead of considering the pertinent issue of whether the landowner acted reasonably in
maintaining his land. Also, the trichotomy was created at a time when principles of negligence
were not in existence.
 Reasons for the trichotomy
 Jurisdictions have retained the trichotomy for fear of jury abuse: P-oriented juries will
impose unreasonable burdens on D-landowners. However, this has not occurred in other
areas of law and today jurors are more likely to be landowners than they were in modern
times.
 Another fear is that landowners will be forced to bear the burden of taking precautions such
as the expensive cost associated with maintaining adequate insurance policies. However,
every court which has abolished the trichotomy has explicitly states that its holding was not
intended to make the landowner an absolute insurer against all injuries suffered on his
property. They only require landowners to exercise reasonable care in the maintenance of
their premises
 Ensuring predictability in the law. However, jurisdictions have realized the trichotomy and
its excepts and sub classifications is more complex and confusing than the negligence
standard of reasonableness.
 Reasons Against:
 It is based on principles which no longer apply to today’s modern industrial society.
 The preceding cases demonstrate that the trichotomy has failed to make clear the duty a
landowner owes to entrants upon his property. Rather it has caused confusion amongst our
citizens and the judiciary – a confusion exaggerated by the numerous exceptions and sub
classifications engrafted into it.
 Finally, the trichotomy is unjust and unfair because it usurps the jury’s function either by
allowing the judge to dismiss or decide the case or by forcing the jury to apply mechanical
rules instead of focusing upon the pertinent issue of whether the landowner acted reasonably
under the circumstances.
 Facts: The landowner requested that the injured person pick him up at his house for a business
meeting that the two were attending, and the injured person tripped over a stick that the
landowner had inadvertently left lying on his porch.
 Issue: whether the landowner's act of leaving a stick on his porch constituted negligence and
whether the injured person was entitled to a jury trial.
 Analysis: The jury must determine whether D Freeland fulfilled his duty of reasonable care
under the circumstances.
 Notes: In jurisdictions that have rejected a separate category for trespassers, legislatures
have almost uniformly passed statutes affording landowners some form of immunity. Class
Notes: Rstmt 3rd replicates the content of Cali’s civil code Section 847 by allowing liability
to ordinary but not “flagrant trespassers.”
39
  Bennet v. Stanley, Supreme Court of Ohio, 2001 – Attractive Nusiance. Kid drowning in pool and
mom dies trying to rescue
 Class Notes: the Attractive Nuisance Doctine considers more than just foreseeability. We look at
the burden compared to the risk to children and the foreseeability. If a child was not involved, he
would have been a trespsassser and not owed a duty of reasonable care. Looking back to Kramer
Service what was P’s status: a licensee becaue he was not a guest, he was visiting his friend there
but you could argue that he’s an invitee. In Miss. Law it does not matter whether he was a
licensee or invitee because there is a duty to protect licensees from known dangers and they
knew about the broken glass so they were liable either way. Ohio is a trichotomy jurisdiction so
without the attractive nuisance doctrine, the child would be a trespasser and no duty of
reasonable care would be owed him. In Ohio the only duty owed to trespassers and licensee is a
duty to refrain from willful and wanton conduct that is likely to injure. Here we had a pond with
frogs in it which could be attractive to children so it would be foreseeable that children would
use it. And the child is unlikely to foresee the risk. A child’s liability depends on the age and
maturity. Under subsection (e) if they had a fence around the pool you might argue that
reasonable care was taken. The court of Appeals ssaid that Cher is privileged to enter the
property to rescue so she’s a licensee not a trespasser but that means there was no duty. They
overrule this and say that the she adopts the same status of the child. But what if she enters to
rescue an adult not a child does she take on the status of a trespasser? Could they find that the
mom was cont negl because she knew she couldn’t swim or its was too deep to save him? No,
what is reasonable depends on the situation and here it’s a true emergency and reasonable for a
parent to rescue a child.

 Posecai v. Wal-mart Stores, Inc, Supreme Court of Louisiana, 1999

 LA chooses the balancing test as the best method for determining when business owners owe a
duty to provide security for their patrons. The economic and social impact of requiring
businesses to provide security on their premises is an important factor. However, business
owners are in the best position to appreciate the crime risks that are posed on their premises and
to take reasonable precautions to counteract those risks.

Immunities.

 today the substantial immunities apply to government entities and foreign sovereigns. As to private
parties there was extensive creation of immunities for private parties but today most are no longer in
effect. These days’ immunities are the product of legislation such as Cali giving landowners immunity
from flagrant trespassers.
 Immunity or Just Plain Duty?
 An immunity consists of a judgment by the court that although the D might have acted tortuously
thereby injuring the P, they ought not be held liable due to certain considerations of public
policy. There is at least one potential procedural difference between courts’ treatment of
immunity and duty. An immunity is said to be a bar not only to liability, but also to suit.
 Charitable Immunity.
 Interspousal Immunity.
 Parent-Child Immunity
 Brunner v. Hutchinson Division, Lear-Siegler, Inc., US District Court of SD 1991
 Facts: Jeremiah Brunner, aged 2.5 years was injured when the infant came into contact with
machinery manufactured by D and third party complaint seeking indemnity and/or
contribution from third-party D’s Brad Brunner and HL Brunner & Sons.

40
  Rule: This Court adopts the more modern approach of the Rstmt (2nd) of Torts Section
895(g), which simply recognizes that in limited circumstances a parent is privileged form
liability with respect to certain causes of action. Among those causes of action for which a
parent is privileged is a claim of negligent supervision, a cause of action that is not
recognized at law in the State of SD.
 The Restatement embraces the Goller approach by completely rejecting general parent-
child tort immunity: (1) A parent or child is not immune from tort liability to the other
solely by reason of that relationship, (2) repudiation of general tort immunity does not
establish liability for an act or omission that, because of the parent-child relationship, is
otherwise privileged or is not tortious.
 Privileges:
 Certain disciplinary acts which would be tortious if directed at a third party like a
parent who spanks a child would be privileged from being sued by the child for
battery.
 Parental authority and discretion is privileged and this is an exercise or act involving
discipline, supervisor, or guidance of a child. An exercise of discretion would tend to
concern a parent’s decision concerning food and clothing, the home environment,
medical care, and other necessities.
 The scope of these privileges is likely to be as broad as the circumstances in which
they may arise.
 Analysis: Brad Brunner did not transgress the boundaries of the privilege accorded acts of
parental authority and discretion. D nowhere alleges that Brad Brunner acted willfully or
maliciously toward Jeremiah, but instead attempts to distinguish Brunner’s supervision of
Jeremiah as being different from mere negligence on the grounds that the father “physically
brought” his son into a dangerous area. The fact that Jeremiah Brunner was in his father’s
company for purposes of supervision sufficiently implicate function of parental authority and
discretion as to fall within that privilege.
 Jurisdictions: Many states have since followed Goller and the Restatement. A substantial majority of
states have now abandoned the doctrine in whole or in part. 11 states have abrogated it entirely or have
declined to adopt it; 11 have abrogated it in automobile negligence cases; 5 have abrogated it in
automobile negligence cases in which the parent has liability insurance; and 7 have abrogated it except
in cases in which the parents allege tortious act involves an exercise of parental authority over the child
or ordinary parental discretion with respect to such matters as food, care, and education.

 Class Notes: Cali imposes a duty on a parent to act reasonable in all cases.

B. Special Duty Rules Depending on the Type of Harm.

A. Emotional Harm

 Restatement (3rd) Section 47: Negligent Conduct Directly Inflicting Emotional Harm on Another: An actor
whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the
conduct: (a) places the other in danger of immediate bodily harm and the emotional harm results from the
danger; or (b) occurs in the course of specified categories of activities, undertakings, or relationships in
which negligent conduct, is especially likely to cause serious emotional harm.

 Comment f: Recovery under subsection (b) does not require that the D have created a risk of bodily
harm to the P. Examples include: delivering a telegram or other communication erroneiously
announcing death or illness, mishandling a corpse or bodily remains, food that is later found to have

41
 been contaminated with a foreign object, misdiagnosis of a patient with a dreaded or sious disease,
exposure to HIV.

 Courts often cite the culpability of the D’s conduct and the strong foreseeability of harm as reasons for
doing so. Although courts often do not articulate the pattern, areas of liability seem to arise where the facts
of the cases are so horrible that they make one gasp.

 Restatement (3rd) Section 48: Negligent Infliction of Emotional Harm Resulting from Bodily Harm to a
Third Person: An actor who negligently causes sudden serious bodily injury to a third person is subject to
liability for serious emotional harm caused thereby to a person who: (a) perceives the event
contemporaneously, and (b) is a close family member of the person suffering the bodily injury.
 The Restatement Comment e: says that if the person later learned about the events. Later viewed a
recording of them, or later observed the resulting bodily injures it is not enough. So if you see a video fo
the accident you cannot recover.

 NIED is not an independent tort. The most common approach for assessing the duty of law enforcement is
the multifactor duty analysis from Rowland. The Rowland Factors:
 The foreseeability of harm to the P,
 the degree of certainty that the P suffered injury,
 the injury suffered,
 the moral blame attached to the D’s conduct,
 the policy of preventing future harm,
 the extent of the burden to the D and consequences to the community of imposing a duty to exercise care
with resulting liability for breach,
 and the availability, cost, and prevalence of insurance for the risk involved.
 When public agencies are involved, additional elements include the extent of the agency’s powers, the
role imposed upon it by law and the limitations imposed upon it by budget.

 Catsouras v. Department of the Calif. Highway Patrol, Cali Court of Appeal, 2010
 Notes: Although Catsouras arguably falls within one of the oldest, most established categories of NIED
claims, it also takes a modern tack in declining to recognize NIED as an independent cause of action.
Several courts have adopted Cali’s ostensible approach, although it remains unclear whether this
seemingly expansive doctrine results in more extensive negligence liability for emotional distress.
Indeed, it is questionable whether Cali itself truly effects this rule.

 Falzone v. Busch, Supreme Court of NJ, 1965 - Overrules the precedent requiring a physical impact for a
recovery. As long as the negligence was the proximate cause of the injury (with or without physical impact),
recovery is permitted as long as the plaintiff was within the “danger zone” where it would be reasonable to
fear a physical injury.
 Holding: Where negligence causes fright from a reasonable fear of immediate personal injury,
which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness,
the injured person may recover if such bodily injury or sickness would be regarded as proper
elements of damage had they occurred as a consequence of direct physical injury rather than
fright. Where fright does not cause substantial bodily injury or sickness, it is to be regarded as too
lacking in seriousness and too speculative to warrant the imposition of liability.

 Notes: An overwhelming majority of courts have followed Falzone in abandoning the physical impact
requirement. Falzone’s holding that an emotional injury must be serious enough that it manifests in
“physical symptoms” on the other hand, remains a frequent requirement in NIED claims. In many
jurisdictions, the rule has been interpreted more expansively to require only that the emotional harm be
serious enough to result in “diagnosable psychological injury.” Inability to sleep, nausea, loss of
42
 appetite, and dizziness have generally not been held to be sufficient bodily harm or physical injury.
However, a nervous breakdown or the prolonged pressure of such symptoms that seriously interferes
with a person’s ability to pursue a normal lifestyle have been considered to be enough of a showing of
physical injury or bodily harm. In some jurisdiction, courts allow recovery in NIED either when the P
was within the zone of danger or was subject to physical impact. Cases in which the P seeks emotional
distress damages after having been exposed to a dangerous substance fall somewhere in between these
categories. Generally courts have been more willing to allow NIED claims in HIV exposure cases than
in carcinogen-exposure cases.

 The eggshell psyche: The Falzone court imposes a duty only where the P suffered a “reasaonble fear” of
physical injury. This requirement injects an objective requirement – reasonableness – into the duty
analysis in claims for subjective emotional distress. In so doing, the court finds a useful mechanism for
sorting out illegitimate and trivial claims. But what if the courts holds that the reasonable person would
have suffered fear under the circumstances of a particular case, but that the P suffered emotional distress
far more acute than would the reasonable person? In such a case, most jurisdictions invoke the “eggshell
phsyche” rule and allow recovery for the full extent of the damages. Class Notes: D takes the P as he
finds him. Falzone does not seem consistent with this.

 Horribleness: Class Notes: liability seems to arise when facts of the case are unusually horrible.

 Pre-death emotional distress: Virtually all states have passed survival acts, which allow a decdent’s
estate to recover injuries suffered by the decedent before his or her death. Pursuant to these actions, most
courts have allowed recovery of pre-death emotional distress suffered by a decedent killed by the D’s
neglgingece. The primary issue in such cases is whether the P has offered sufficient proof of injury.

 Molien v. Kaiser Foundation Hospitals, Supreme Court of California, 1980 – Here they say inflicting
foreseeable serious emotional harm is enough to go to a jury even if there are no physical manifestations of
the harm.
 Class Notes: How is this different than Falzone? P was not in the zone of danger. There was never any
impact. There is only distress from a misdiagnossi of his wife. Molien ahs never beenoverturned but it’s
difficult to get a precise holding from it. The D and the doctor clearly have a defined legal duty to their
patient. But what about a duty to her husband? You could say the doctor brings her husband into the
relationship when he tells her to tell her husband of her diseases.
 Notes: Regardless of the tumultuous state of Cali’s law on NIED, Molien offers 2 important lessons that
are generalizable across jurisdictions: (1) Molien represnents another category of cases in which courts
frequently impose a duty not to cause emotional distress – cases in which a D doctor has negligently
made a false-positive misdiagnosis of a serious disease. (2) the real issue with whitht e court struggled in
Molien is what to do in a case where the D’s negligent act arguably caused emotional harm to the P
indirectly, by harming a third party. As Molien reflects, courts are less willing to impose a NIED duty in
such cases. Thus the court in Molien resorted to the strained conclusion that D’s harm to the P was in
fact direct. Courts have created a different set of rules limited duty in cases of indirect emotional harm –
these rules are set out in Portee v. Jaffee

 Portee v. Jaffee, Supreme Court of NJ, 1980 – Bystander Rule: Indirect negligent infliction of emotional distress requires proof
of the following elements:
 The death of serious physical injury of another caused by defendant’s negligence
 A marital or intimate familial relationship between plaintiff and the injured perso
 Observation of the death or injury at the scene of the accident
 Resulting severe emotional distress

43
  A duty of reasonable care to avoid physical harm to others extends to the avoidance of thise type of mental and
emotional harm. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the
relationship of the parties, the nature of the risk, and the public interest in the proposed solution.

 Boyles v. Kerr, Supreme Court of TX, 1993

 Holding: there is no general duty in TX not to negligently inflict emotional distress. A claimant may recover mental
anguish damages only in connection with D’s breach of some other legal duty. There must be a breach of some other
duty: emotional distress from direct physical injury, wrongful death, battery, failure of telegraph company to timely
deliver death message, invasion of privacy, defamation are all recoverable damages because there was another duty
violated.
 Facts:
 Rule: The holding does not affect the right of bystanders to recover emotional distress damages suffered as a result of
witnessing a serious or fatal accident. Texas has adopted the bystander rules from the California Dillon v. Legg case.
They also are not imposing a requirement that emotional distress manifest itself physically to be compensable. Where
emotional distress is a recognized element of damages for breach of a legal duty, the claimant may recover without
demonstrating a physical manifestation of the emotional distress.
 Most other jurisdictions do not recognize a general duty not to negligently inflict emotional distress. Many limite
recovery by requiring proof of a physical manifestation. Others allow recovery where the claimant establishes the
breach of some independent duty. A few jurisdictions recognize a general right to recover for negligently inflicted
emotional distress, but these jurisdictions are squarely in the minority.
 Some courts have recognized an independent cause of action for “serious” or “severe” emotional distress.
However, it is difficult to imagine how a set of rules could be developed and applied on a case by case basis to
distinguish severe from non-severe emotional harm.

 McDougal v. Lamm, Supreme Court of NJ, 2012

 Rule: Under Portee it has never been conclucdied that relief can be applied tot eh observation of a death, however
traumatic, by one who did not share a close familial relationships or intimate, marital-like bond with the victim. Bonds with
pets do not rise to that level The narrow grounds established by Portee dod not expand to claims arising from the death of
a pet.

 IIED – the doctrine is pretty settled. It is very demanding so the frequency of successful or even plausible
IIED claims are low in frequency so we don’t spend much time on it.

 Restatement, 3d., §46 Intentional (or Reckless) Infliction of Emotional Harm

 An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional
harm to another is subject to liability for that emotional harm and, if the emotional harm causes
bodily harm, also for the bodily harm.

 Star v. Rabello – there is one powerful defense to IIED, the 1st Amendment
 Facts: Judge determine that Star started the fight and Rabello’s daughter witnessed it.
 Rule: Recovery on the part of a third party wintess to an outrageous act is permitted if that third
party is a close relative of the person whom the outrage was directed. Most Ps who have been
permitted recovery as bystanders, however, have witnessed acts which were not only outrageous but
unquestionably violent and shocking. Prosser says the outrage requirement is more difficult to meet
when the act has been directed against a third party in cases in which the P has been a mere witness
to the occurrence. Knowledge of a witness’s condition tends to increase the outreagious nature of the
act (weeak or pregnant person may be more prone to suffer).
 Analysis: Star knew the daughter was present but an assault of the kind here is insufficient to
warreant recovery by a witness to such an assault.

 Snyder v. Phelps –
 Plaintiff wanted to recover on an IIED claim against the Westboro Baptist Church for the distress
caused by the church’s picketing of his son’s funeral. In a divided opinion, the Supreme Court

44
 denied recovery. Speech can be a vehicle for IIED, but in this case, the narrow requirements for an
IIED claim were not met.
 Rule: IIED in MD requriems that D intentionally or recklessly engaged in extreme and outrageous
conduct that caused the P to suffer sever emotional distress. Whether the 1st amendment prohibits
liability turns on whether that speech is of public or private concern as determined by all the
circumstnaces of the case.
 Analysis: the content of Westboro’s signs plainly relates to broad issues of interest to society at
large, rather than matters of purely private concern. Also, the location of the picketing did not make
it a private matter. Dissent focuses on the context of the speech.

Chapter 7: Others’ Conducts as a Contributing Cause

 Restatement, 3d., §3 Ameliorative Doctrines for Defining Plaintiff’s Negligence Abolished
 Plaintiff’s negligence is defined by the applicable standard for a defendant’s negligence. Special
ameliorative doctrines for defining plaintiff’s negligence are abolished.

 Comment a: the same standard used for assessing D’s conduct will also be sued to assess the P’s. However,
in Section 7 comment h it says that some courts have held a mentally ill patient is under no duty of self-
protection with respect to a caretaker.

 Comment c: Relationship to implied assumption of the risk and D’s negligent. This Section applies to a P’s
negligence even when the P is actually aware of a risk and voluntarily undertakes it. Except as provided in
Section 2, no jury instruction is given on assumption of risk. A P who is actually aware of a reasonable risk
and voluntarily undertakes it, as when a parent tries to rescue a child from a fire, is not negligent. The parent
may, however, be negligent for other reasons, such as the manner of the rescue. When a P is negligent, the
P’s awareness of a risk is relevant to the P’s degree of responsibility.

 The fact that P knew of the risks is also relevant in determining whether D was negligent.

 Restatement, 3d., §4 Proof of Plaintiff’s Negligence and Legal Causation

 The defendant has the burden to prove plaintiff’s negligence and may use any of the methods a plaintiff
may use to prove defendant’s negligence. Except as otherwise provided, the defendant also has the
burden to prove that the plaintiff’s negligence, if any, was a legal cause of the plaintiff’s damages.

 Restatement, 3d., Apportionment of Liability §8 Factors for Assigning Shares of Responsibility

 Factors for assigning percentages of responsibility to each person whose legal responsibility has been
established include
 the nature of the person’s risk-creating conduct, including any awareness or indifference with respect
to the risks created by the conduct and any intent with respect to the harm created by the conduct;
and
 the strength of the causal connection between the person’s risk-creating conduct and the harm.

 Danger invites rescue so it doesn’t matter if you’re rescuing property or people. The rule does not exclude
liability for rescue of property if the rescue is needed because of D’s negligence. Restatement

 In NC contributor negligence still operates as a complete defense. However, if D’s fault is worse than
negligent such as willful and wanton (reckless and intentional), then the P’s negligence is not a defense at
all. With comparative fault jurisdictions it matters less how we classify the parties fault, we just compare the
level of fault of each.

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 The plaintiff’s contributory negligence must be a proximate cause of the injury in order to serve as a defense

Contributory Negligence
 Only 5 jurisdictions retain the contributory negligence rule – AL, MD, NC, VA, and District of
Columbia. However, in VA and NC, as in some other states, there is legislation applied comparative
negligence to certain actions such as those brought by employees of RR’s engaged in interstate
commerce.

 The law concerning what constitutes contributory negligence has not, for the most part, been altered
with the adoption of comparative negligence. Only the amount of damages that the P can recover has
changed.

 Courts made serveral exception to cont negligent rule including that it is not a defense if the D’s conduct
was intentaionl, willful, or wanton misconduct. However, if a jury found that the P’s misconduct
measured up to the same degree of fault as the D the cont negligent rule would once again apply.

 Violation of a statute can constitute contributory negligence as a matter of law (Martin v. Herzong).
Contributory negligence will normally also be a defense to an action based on the D’s violation of a
statutory duty. There are exceptions: see pg 620 Note 4.

 Butterfied v. Forrester, King’s Bench 1809

 D had put a pole across part of the road leaving room for passage around it. P left a public house
when there was still enough light to see the pole from 100 yards away. IF P had not been riding so
hard he might have seen the pole and avoided it, but he was riding very hard and rode into, fell from
his horse and hurt himself badly.
 Conclusion: Just because D was at fault does not relieve P from liability for not using ordinary care.

 Smithwick v. Hall & Upson Co., Supreme Court of Errors of CT, 1890
 Employee was not supposed to be working in a particular area because of the risk of slipping on
melted ice. Employee worked in that area but was injured by a falling wall.
 Main Point: The plaintiff’s contributory negligence must be a proximate cause of the injury in order
to serve as a defense
 Class Notes: The court says if he had not been born or hadn’t shown up to work that day he would
not have been injured, but that’s not a contributory cause.

Comparitive Neglignece
 Pure comparative negligence concept, under which a P may recover regardless of the degree of his
cont negl, but the jury is required to reduce his award in proportion to his cont negligence.
 Cons: it is difficult to rationalize a system which permits a party who is 95% at fault to have his day
in court as a P because he is 5% fault free. The pracitical result of such a system is that it favors the
party who has incurred the most damages regardless of his amount of fault or negligence.
 The less than formula adopted in WV, AK, CO, KS, ID, ME, ND, and UT (if P is less than 50% liable
they can recover).
 The most popular form is the “not greater than” formula: if the negligence was not greater than the
negligence of the person against whom recovery is sought, contributory negligence does not bar
recovery. (50% or less and they can recover). – Makes a big difference because a lot of juries award
50/50.
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 Levels of fault and intentional acts:
 Rstmt (3rd): Apportionment of Liability Section 1 comment b calls for a comparison of all types of
misconduct, but this position has not been widely adopted. The most extreme case occurs when the
D’s behavior is intentional.
 Applying comparative responsibility to intentional torts remains the minority rule. However, there
are an increasing number of cases that fold even intentional acts into the comparative fault process.
Some comparative responsibilty statues seem to require this approach. A closer case is presented
when D’s behavior constitutes willful and wanton negligence. The jurisdictions are split.
 A number of courts refuse to permit comparison here as well.
 Strict Liability: Rstmt (3rd): Products Liabilty Section 13 includes product liability cases withing= the
ambit of the comparative responsibility treatment, reflecting what most states are now doing with the
issue.

 Class Notes: Challenge for trier of act: Relative fault - takes into account degree of causal connection
also consider degree of relative culpability. If there is no causal connection, there is no claim. The
formulation is NOT ambiguous to DeMott, she thinks its not specific, which one matters more.
Sometiems the 2 factors merge. Studies show that juries tend to assign fault as 50:50. There is an issue
of whether juries should be told the outcome of their relative fault decision.

 The Tide of Judicial Change

 Hoffman v. Jones, Supreme Court of FL, 1973
 Issue: Whether or not the Court should replace the contributory negligence rule with the
principles of comparative negligence?
 Analysis: Whatever may have been the historical justification for cont negl, today it is almost
universally regarded as unjust and inequitable to vest an entire accidental loss on one of the
parties whose negligent conduct combined with the negligence of the other party to produce the
loss. If fault is to remain the test of liability, then the doctrine of comparative negligence which
involves apportionament of the loss among those whose fault contributed to the occurrence is
more consisten with liability based on a fault premise. Cont. Negl is a more equitable and
socially desirable system. A primary function of a court is to see that legal conflicts are equitably
resolved. In the field of tort law, the most equitable result that can ever be reached by a court is
the equation of liability with fault.
 Holding: A P in an action based on negligence will no longer be denied any recovery because of
his cont. negligence. If P and D are both at fault, the former may recover, but the amount of his
recovery may be only such proportion of the entire damages P sustained as the D’s negligence
bears to combined negligence of both the P and the D. The doctrine of last clear chance would no
longer have any application in these cases. In rare cases the net result of 2 such claim will be that
the party more responsible for an accident will recover more than the party less responsible. Trial
court judges of this State can adequately handle any problems created by the change to comp
negl using the following rule:
 To allow a jury to apportion fault as it see fit between negligent parties whose negligence
was part of the legal and proximate cause of any loss or injury and
 To apportion the total damages resulting from the loss or injury according to the
proportionate fault of each party.
 Notes: Hoffman was followed by other judicial abroagations of the traditional rule that
contributory negligence is a complete defesne. IN 1991 and 1992, 2 more states adopted
comparative nelgignece by judicial decision: SC and TN. Both adopted modified systems,
however, similar to that presented in the Bradley case, which follows next. Most states that have
adopted comp negl have done so by statue . Not every state Supreme Court confronted with the
request to shift to comp negl has agreed to do so.

47
 Bradley v. Appalachian Power Co., Supreme Court of Appeals of WV, 1979 – Less than formula for
comparative negligence: if P is less than 50% and they can recover.
 Issue: Reexamination of the common law doctrine of contributory negligence.
 Rule: Four states have by judicial decision adopted a “pure comp negl concept, under which a P
may recover regardless of the degree of his cont negl, but the jury is required to reduce his award
in proportion to his cont negligence. However, it is difficult to rationalize a system which
permits a party who is 95% at fault to have his day in court as a P because he is 5% fault free.
The pracitical result of such a system is that it favors the party who has incurred the most
damages regardless of his amount of fault or negligence.
 Holding: This court does not accept the major premise of pure comparative negligence. Instead
contributory negligence is modified to so a party is not barred from recovering damages in a tort
action so long as his negligence or fault does not equal or exceed the combined negligence or
fault of the other parties involved in the accident.
 The sum of the negligence of all the parties to a given accident cannot exceed 100%.
 It will be the jury’s obligation to assign the proportion or degree of his total negligence
among the various parties, beginning with the P . The jury should be required by general
verdict to state the total or gross amount of damages of each party whom they find entitled to
a recovery, and by special interrogatory the Percentage of fault or contributory negligence, if
any, attributable to each party. After the veridcts have been accepted, the trial court will
calculate the net amount by deducting the party’s percentage of fault from his gross award.
 Our comp negl rule is not designed to alter our basic law which provides for joint and several
liability among joint tortfeasors after judgment. It also does not change the right of a joint
tortfeasor to obtaini a pro tanto credit on the P’s judgment for monies obtained by the P in a
settlement with another joint tortfeasor.
 In appropriate circumstance the doctrine of las clear chance is still available.
 In the case of an intentional tort, contributory neglgince is not a defense. Therefore, comp
negligence would not come into play, and the P would recover his damages undiminished by
any cont negligence.
 Conclusion: Our comparative negligence rule still bars the substantially negligent P from
obtaining a recovery, but it does permit the P who is more than slightly at fault to recover his
injuries diminished by his percentage of contributory negligence.
 Notes: 12 states have adopted pure comparative responsibility. Most states however have
adopted some form of “modified” comparative responsibility. Most states adopting comparative
responsibility by judicial opinion have opted for the pure form while a majority of state that
have adopted it by statute has opted for the modified form. Why?
 Most early federal statutes chose the pure version. The pure form has been adopted in Great
Britain and other common law jurisdictions.
 Modified comparative fault has 2 primary variations:
 The less than formula adopted in Bradley; also in AK, CO, KS, ID, ME, ND, and UT (if
P is less than 50% liable they can recover).
 The most popular form is the “not greater than” formula: if the negligence was not
greater than the negligence of the person against whom recovery is sought, contributory
negligence does not bar recovery. (50% or less and they can recoer).
 Informing the jury of the consequences of its fault allocation. Juries must be given special
interrogatories asking them to assign a percentage of responsibility to various parties. Ps and
Ds are always included and most jurisdiction ask juries to allocate to other parties as well
such as the settling parties. Should the jury be informed of the result of the fault allocation?
They may not be aware that a finding of fault on the part of P in a cont negl jurisdiction or

48
 assigning more than 50% in a modified jurisdiction will have the legal result that the P will
take nothing.

 Isses that Arise in the Application of Comparative Negligence

 The terms comparative fault and comparative responsibility have become more accurate in many
situations. Comparative approaches are applied to cases other than those involving mere negligence
including cases involving intentional behavior and cases where fault ostensibly is not the
determinative issue. The obvious problem is how to define the appropriate comparison: Should it be
based on relative levels of culpability or by comparing the degree to which each party’s fault
causally contributed to the P’s injury.
 The Rstm(3rd) of Torts: Apportionment of Liability Section 8 offers factors for assigning shares
of Responsibility:
 Section 8: Factors for Assinging Shares of Repsonbility
 Factors for assigning percetages of responsibility to each person whose legal
responsibility has been established include
 A. the nature of the person’s risk-creating conduct, including any awareness or
indifference with respect to the risks created by the conduct and any intent with
respect to the harm created by the conduct; and
 B. the strength of the causal connection between the person’s risk-creating conduct
and the harm.
 Many statutes assign responsibility on the basis of the relative degree of fault but there is
substantial variation across jurisdictions.
 The Iowa statue, like the Restatement attempts to find a middle ground by considering the nature
of the conduct of each party and the extent of the causal relation between the conduct and the
damages claimed.
 Comparative fault has not prevented the application of res ipsa loquitur, with appropriate
modifications.

 In cases where there are multiple Ds, should the P’s degree of fault be compared to each D
separately or to the sum of all of the D’s fault?

 Levels of fault and intentional acts:

 Rstmt (3rd): Apportionment of Liability Section 1 comment b calls for a comparison of all types
of misconduct, but this position has not been widely adopted. The most extreme case occurs
when the D’s behavior is intentional.
 Applying comparative responsibility to intentional torts remains the minority rule. However,
there are an increasing number of cases that fold even intentional acts into the comparative fault
process. Some comparative responsibilty statues seem to require this approach. A closer case is
presented when D’s behavior constitutes willful and wanton negligence. The jurisdictions are
split.
 A number of courts refuse to permit comparison here as well.

 Strict Liability: Rstmt (3rd): Products Liabilty Section 13 includes product liability cases withing=
the ambit of the comparative responsibility treatment, reflecting what most states are now doing with
the issue.
 Guest statutes:
 Class Notes: Hypo: The Tort Lawyers Road Trip, starts in Florida and ends in Wisconsin. For every
collision they have, the drivers as well as the other car are equally liable 50:50

49
 FL: Pure comp neglg rule so the damages will be divided 50:50. Who will come out with more
money depends on who suffered the most damage. A party who was 95% responsible would still
have a claim.
 GA: Less than Rule: so if it’s 50:50 P’s nelgigne is NOT less than D’s so P reocvers ntohign
 NC: 50:50 is an easy case. P will not reicover. If D’s act was worse than negligent, then P could
recover.
 WV: Less than Rule: P recovers nothing
 WI: Statute: Most popular form of statutory comparative negligence. Not greater than Rule: 50:50
means P can revocer.

Last Clear Chance:

 Recognized that negligently caused injuries often result from a sequence of events. The courts tried
to allocate legal blame for the injury to the last party that had a chance to avoid the accident under
the last clear change doctrine. It worked primarily as a device to soften the impact of P’s cont
negligence when the D had perceived the perilous positions of the P and could have avoided the
accident by the exercise of reasonable care.
 Rstmt (2nd) of Tor Section 479 Last Clear Chance: Helpless P
 A P who has negligently subjected himself to a risk of harm from the D’s subsequent
negligence may recover for harm caused thereby if, immediately preceding the harm,
 A. the P is unable to avoid it by the exercise of reasonable vigilance and care and
 B. the D is negligent in failing to utilize with reasonable care and competence his then
existing opportunity to avoid the harm, when he
 i. knows of the P’s situation and realizes or has reason to realize the peril involved in
it or
 ii. Would discover the situation and thus have reason to realize the peril if he were to
exercise the vigilance which it is then his duty to P to exercise
 Section 480: Inattentive P
 A P who, by the exercise of reasonable vigilance, could discover the dagner created by
the D’s negligence in time to avoid the harm to him, can recover if, but only if, the D
 A. knows of the P’s situation, and
 B. realizes or has reason to realize that the P is inattentive and therefore unlikely to
discover his peril in time to avoid the harm, and
 C. thereafter is negligent in failing to utilize with reasonable care and competence his
then existing opportunity to avoid the harm.
 Notes:
 The justification is a causal one. Because she had the last clear chance, the D’s conduct is the
proximate cause of the accident. The causal theory works in the case of the helpless P; it breaks
down when the P is merely inattentive.
 When the P is helpless and the D actually discovers the P’s peril, almost all American
jurisictions permitted the P to recover, even if they otherwise purported to reject the doctrine of
last clear chance. Whether the P is inattentive and the D is aware of the P’s situation a majority
of courts followed the Restatement position.
 If last clear chance is based on notions of causation its continued existence is not inconsistent
with comparative fault. Howver, the predominant view has been that last clear chance does not
survive the inro of comp fault.
 Class Notes: The doctrine does not have much practical effect now. Comes up in cases where the
injury is caused by a sequence of events. We had a case in the past the rejected las clear chance:
Kindsment

50
 Assumption of the Risk
 The Rstmt (3rd): Apportionament of Liability Section 2: When permitted by contract law, a contract
between the P and another person absolving the person from liability for future harm bars the P’s
recovery from that person for the harm. Unlike a P’s negligence, a valid contractual limitation on
liability does not provide an occasion for the factfinder to assign a percentage of resonsibility to any
party or other perons.
 Comment c: A contractual limitation on liability may occur by written agreement, express oral
agreement, or conduct that creates an implied-in-fact contract.
 Express Assumption of the Risk: Parties may make contracts exculpating one of his negligence but it
must be done knowingly and willingly by both parties. Also exculpatory clauses are not against public
policy except when:
 one party is at such an obvious disadvantage in bargaining power that the effect of the contract
is to put him at the mercy of the other’s neglgiencce, This is applicable between employer and
employee.
 Transactions affecting the public interest such as public utilities, common carriers, innkeepers,
and public warehousemen on the ground that the indenspensible need for their services deprives
the customer of all real equal bargaining power.
 Also, exculpatory agreement are not construed to cover the more extreme forms of negligence or
any conduct which constitutes an intentional tort.
 Express assumption of the risk continues to be a complete defesne because the “contract” between
the parties relieves the D of responsibility.

 Primary Assumption of the Risk = D owes no duty or a limited duty. It’s not a defesne

 Elements to constitute a defense of implied assumption of risk:

 (1) Knowledge on the part of the injured party of a condition inconsistent with his safety
 (2) appreciation by the injured party of the danger in the condition
 (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that
danger in such a manner as to register assent on the continuance of the dangerous condition.

 Assumption of risk is governed by the subjective standard of the P itself whereas contributory
negligence is measured by the objective standard of a reasonable man, and assumption of risk is a jury
question in all but the clearest cases. Subjective knowledge is more difficult to prove.
 The type of assumption of risk in Herod: where the P can be said to have been negligent in exposing
himself to the risk of being injured, is the type that is most likely to have been absorbed by the
concept of comparative negligence.
 Subjective determination – awareness of the risk – inevitably in the course of judicial decision-
making comes to be made by reference to objective criteria, namely, what a rational person would
clearly have understood about the situation. The nexus of course is that what a rational person would
have understood is evidence of what this particular P understood.

 Recreational Activities: An operator of such an establishment will be liable for injuries to his patrons
only where he fails to use reasonable care in the construction, maintenance, and management of the
facility, having regard to the character of the exhibitions given and the customary conduct of patrons
invited.
 Recovery is not granted to those who voluntarily expose themselves to the kind of risks involved by
participating in or viewing the activity. This rule is limited to those injuries incurred as a result of
risks any baseball spectator must and will be held to anticipate.

51
  No duty rules apply only to risks which are common, frequent, and expected and in no way affect the
duty of theatres, amusement partks, and sport facilities to protect patrons from foreseeably
dangerous conditions not inherent in the amusement activity.
 California: In Cali they say that in recreational activities, it is improper to hold a sport participatnt lliable
to a coparticipant for ordinary careless conduct committed during the sport. Liablilty can only be
imposed where the participant intentionally injures another player or engages in conduct that is so
reckless as to be totally outside the range of the ordinary activity involved in the sport. Assumption of
risk is divided into 2 separate categories: express and implied.
 Express – a contract where the P signs a document and openly agrees to hold the D harmless for
known and inherent dangers of a particular activity.
 Implied – 3 subcategories
 1. Primary Assumption of the Risk – occurs when the P voluntarily accepts known risks involved
in a particular sitatuion, and the D has no duty of care with respect to the P. Example: Spectator
at a baseball game assumes risk of being hit by baseball.
 2. P voluntarily encounters a known risk created by D’s negligence: continuting to use a
defective lawn mower that you know is defective because the inconvenience of repair outweighs
the added risk of injury.
 3. The P unreasonably accepts a known threat of danger in pursuing a particular course of
conduct. – Knowlingly taking a dangerous shortcut, confronting known hazards along the way.

 The advent of comparative negligence produced a general trend to either abolish secondary implied
assumption of risk as a separate defense or to merge it with the notion of comparative fault.
 With primary assumption of risk, situations where it is held that the D has no duty or a limited duty
towards the P, comparative negligence has generally affected no change in the law. However, as this
case show, some jurisdictions have chosen to sweep primary assumption of the risk into the
comparative negligence calculation as well. The primary effect of this choice is on the role of judge
and jury. The absence of a duty is a question of law for the ocurt. If thequestion is simply whether
the D and P were neglgienct these are questions for the jury.

 LaFrenz v. Lake County Fair Board, Court of Appeals of Indiana, 1977

 Facts: Linda LaFrenz was in the pit area during the demolition derby. To enter the pit area she
executed a document entitled, WAIVER AND RELEASE FROM LIABILITY AND
INDEMNIFICATION. While standing in the pit area, an automobile participating in the derby
jumped the area barrier and struck Linda. She subsequently died from the injuries.
 Rule: Parties may make contracts exculpating one of his negligence but it must be done knowingly
and willingly by both parties. Also exculpatory clauses are not against public policy except when:
 one party is at such an obvious disadvantage in bargaining power that the effect of the contract is
to put him at the mercy of the other’s neglgiencce, This is applicable between employer and
employee.
 Transactions affecting the public interest such as public utilities, common carriers, innkeepers,
and public warehousemen on the ground that the indenspensible need for their services deprives
the customer of all real equal bargaining power.
 Also, exculpatory agreement are not construed to cover the more extreme forms of negligence or
any conduct which constitutes an intentional tort.
 Analysis: Here, there was no unequal bargaining power between the parties. The decedent was under
no compulsion to be in the restricted pit are. The activity did not exhibit any of the characteristics of
one affected with the public interest. Each and every signature line contains printing in bold, black
print approximately 3/16th inch, stating “THIS IS A RELEASE.” The from and language of the
agreement explicitly refers to the appellee’ negligence; and the decedent could not have signed the
instrument without seeing the wording “THIS IS A RELEASE.” Thus the form and language is so

52
 conspicuous that reasonable men could not reach different conclusions on the question whether the
deceases “knowingly and willingly” signed the document.

 Herod v. Grant, Supreme Court of Miss. 1972

 Facts: P and D were hunting chasing a deer. P was sitting on toolbox in bed of truck. D was driving,
he sped up in attempt to run over deer and P fell and was seriously injured.
 Rule: Elements to constitute a defense of implied assumption of risk: (1) Knowledge on the part of
the injured party of a condition inconsistent with his safety (2) appreciation by the injured party of
the danger in the condition (3) a deliberate and voluntary choice on the part of the injured party to
expose his person to that danger in such a manner as to register assent on the continuance of the
dangerous condition. Assumption of risk is governed by the subjective standard of the P itself
whereas contributory negligence is measured by the objective standard of a reasonable man, and
assumption of risk is a jury question in all but the clearest cases. Subjective knowledge is more
difficult to prove.
 Issue: Whether the P comprehended a knowledge of the risk involved in riding in the rear of the
truck. A
 Analysis: Here the parties were hunting at night, travelling through a cultivated field traversed by
plowed rows. Joseph Grant, by hunting deer from a seated position upon a tool box in the bed of the
truck in the late evening hours in a cultivated field, assumed the risk that the vehicle might either
pass over rough ground or that it might be accelerated or swerved in the excitement of the chase, or a
combo thereof, none lending itself to safety, but rather all pointing directly to a precarious position
from which injury could very easily flow.
 Notes:
 The type of assumption of risk in Herod: where the P can be said to have been negligent in
exposing himself to the risk of being injured, is the type that is most likely to have been absorbed
by the concept of comparative negligence.
 Subjective determination – awareness of the risk – inevitably in the course of judicial decision-
making comes to be made by reference to objective criteria, namely, what a rational person
would clearly have understood about the situation. The nexus of course is that what a rational
person would have understood is evidence of what this particular P understood.

 Jones v. 3 Rivers Management Corp, Supreme Court of PA, 1978

 Jones was at the Pittsburgh Pirates baseball stadium. The players were having batting practice on the
field. She was standing on the second walkway in the vicinity of the large right field opening when
she was struck in the eye by a ball hit at practice.
 Rule: An operator of such an establishment is not an insurer of his patrons. Rather, he will be liable
for injuries to his patrons only where he fails to use reasonable care in the construction, maintenance,
and management of the facility, having regard to the character of the exhibitions given and the
customary conduct of patrons invited.
 Recovery is not granted to those who voluntarily expose themselves to the kind of risks involved
by participating in or viewing the activity. This rule is limited to those injuries incurred as a
result of risks any baseball spectator must and will be held to anticipate.
 No duty rules apply only to risks which are common, frequent, and expected and in no way
affect the duty of theatres, amusement partks, and sport facilities to protect patrons from
foreseeably dangerous conditions not inherent in the amusement activity.
 Issue: Whether Jones’s case is governed by the no duty rule applicable to common, frequent, and
expected risks of baseball or the ordinary rules applicable to all other risks which may be present in a
baseball stadium.
 Analysis: the openings built into the wall over right field are an architectural feature of the staduium
which are not an inherent feature of the spectator sport of baseball They are not compelled by or

53
 associated with the ordinary manner in which baseball is played or viewed. The rinclpeles
underlying our rules barring recovery in amusement facility cases cannot extend to the kind of risk
of harm here. These concousrse openings are not part of the spectator sport of baseball. Therefore,
recovery is not foreclosed who was struck while standing in the interior walkway of the stadium.

 Auckenthaler v. Grundmeyers, Supreme Court of Nevada, 1994

 Facs: P and D were riding horses. The ride was purely recreational and none of the participatnts
obtained any compensation or commercial gain from the activity. Auckenthaler was injured when
the horse she was riding strayed too close to Bu. Bum turned and kicked at Auckenthaler’s horse,
strking her in the leg. She filed for negligence.
 Rule: In Cali they say that in recreational activities, it is improper to hold a sport participatnt lliable
to a coparticipant for ordinary careless conduct committed during the sport. Liablilty can only be
imposed where the participant intentionally injures another player or engages in conduct that is so
reckless as to be totally outside the range of the ordinary activity involved in the sport. Assumption
of risk is divided into 2 separate categories: express and implied.
 Express – a contract where the P signs a document and openly agrees to hold the D harmless for
known and inherent dangers of a particular activity.
 Implied – 3 subcategories
 1. Primary Assumption of the Risk – occurs when the P voluntarily accepts known risks
involved in a particular sitatuion, and the D has no duty of care with respect to the P.
Example: Spectator at a baseball game assumes risk of being hit by baseball.
 2. P voluntarily encounters a known risk created by D’s negligence: continuting to use a
defective lawn mower that you know is defective because the inconvenience of repair
outweighs the added risk of injury.
 3. The P unreasonably accepts a known threat of danger in pursuing a particular course of
conduct. – Knowlingly taking a dangerous shortcut, confronting known hazards along the
way.
 NV abrogates all forms of implied assumption of risk as an affirmative defense, and instead uses a
traditional negligence (and comparative negligence) analysis. The negligence standard is sufficiently
flexible to accommodate liability issues underlying all recreational injury cases. There is no
reduction in the D’s standard of care, nor is there any fictitious undertaking that the D does not woe
a duty to the P. Implied assumption of the riks improperly focus on a lack of duty in the D rather
than the more compelling issue of comparative breach of duty by the parties. Whether the D has
failed to act reasonably in the particular circumstances is not an issue of law, but is a matter for the
jury to decide. The negligence standard is a more attractive alternative to resolving these types of
cases. The standard is malleable and the jury simply exampines each case to determine wehther the
D acted unreasonably under the circumstances. Also, claims regarding a potential flood of litigation
and the chilling effect upon participation in recreational activities seem overstated.
 Analysis: She was not injured by any intentional conduct. Here we have a great primary assumption
of the risk case. Horsebackriding is a recreational or sporting activity with inherent dangers By
choosing to participate, the P impliedly consents to the inherent risks of the activity and the D has no
duty or a reduced duty to protect the P. Howver, the facts of this case are to be examined utilizing
the sime negligence rubric.

 Avoidable Consequences, the “seat belt” defense, and mitigation of damages.

 Mitigation before the accident
 With the advent of comparative responsibility, courts have increasingly come to the conclusion that
the evidence of P’s behavior ought to be admissiable and the fact-finder should be allowed to assing
the appropritate adegree of resonablty of each party. Rstmt Section 3 Comment b Illustraiotn 3
 Before the accident by wearing a seatbelt or a helmet.

54
  Controversial and courts are split on how to treat this.
 Not wearing a seatbelt is not negligence per se in any court.
 Mitigation after the accident
 Rstamt (3rd) section 3 Illustration 5 says evidence of failure to mitigate after the injury is admissiable
to allow th jury to reduce D’s responability for the damages assocatiesd with the re-injury.
 After the accident by seeking necessary medical care.
 Refuisng medical care based on religious reasons?
 Failure to take additional tests to ascertain the nature of the injury.
 IF the P’s action is egregious enough, the court may hold that that action is a superceding , proximate
cause of the accident and relieve the D of all responsibility.

Responsibility of Multiple Parties, Including the P

 Cases in which P chooses to sue 2 or more D’s:
 Vicarious liability: A D is held legally responsible for the tortious conduct of another who is the one
actually at fault in causing the injury.
 Joint tortfeasor: more than one party has allegedly cause P an indivisible injury.
Vicarious Liability:

 Liability based not on fault but on status. Most important pocket of it: liability of the employer for the
torts of its employee. The concept of vicarious liability in the context of employee/employer
relationship: respondeat superior

Restatement, 3d., of Agency §7.03 Principal’s Liability – In General

 A principal is subject to direct liability to a third party harmed by an agent’s conduct when
 As stated in §7.04, the agent acts with actual authority or the principal ratifies the agent’s conduct and
 The agent’s conduct is tortious, or
 The agent’s conduct, if that of the principal, would subject the principal to tort liability; or
 As stated in §7.05, the principal is negligent in selecting, supervising, or otherwise controlling the agent;
or
 As stated in §706, the principal delegates performance of a duty to use care to protect other persons or
their property to an agent who fails to perform the duty.

 A principal is subject to vicarious liability to a third party harmed by an agent’s conduct when
 As stated in §7.07, the agent is an employee who commits a tort while acting within the scope of
employment; or
 As stated in §7.08, the agent commits a tort when acting with apparent authority in dealing with a third
party on or purportedly on behalf of the principal.

Restatement, 3d., of Agency §7.07

 An employee acts within the scope of employment when performing work assigned by the employer or
engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope
of employment when it occurs within an independent course of conduct not intended by the employee to
serve a purpose of the employer.

Respondeat Superior

Restatement (3rd) Section 2.04 Respondeat Superior

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 AN EMPLOYER IS SUBJECT TO LIABILTY FOR TORT COMMITTED BY EMPLOYEES WHILE
ACTING WITH THE SCOPE OF THEIER EMPLOYMENT.

 Under respondeat superior, an employer may be liable for the negligent acts of its employees that occur
within the scope of their employment.
 To recover under RS a P must establish:
 a negligent act of the employee, i.e. breach of a duty that is the legal cause of P’s injury and
 that the negligent act was within the employee’s scope of employment.
 Whether an employee is acting within the scope of his or her employment is ordinarily a question
of fact to be determined in light of the evidence of the particular case. The applicable test is
whether:
 the employee’s conduct was related to the employment enterprise or
 if the enterprise derived any benefit from the activity

 The analysis of negligence under respondeat superior should focus completely on the actions of the
employee, without consideration of the acts of the employer. A P need not show any act or fault of the
employer when defining the allegedly negligent act in a respondeat superior claim.

 RS liability may be imposed even if the foreseeable effects of the actor’s negligence conduct occur
outside the scope of employment

 Frolic and detour: The trier of fact determines when something becomes a frolic versus a detour. (See
Note 5 pg 698). If the employees acts are enough to be considered a frolic, the employer may not be
laible but if it’s just a detour they can be.

Apparent Agency

Restatement (Third) of Torts: Phys. & Emot. Harm § 65 (2012)

An actor who hires an independent contractor to perform services is subject to vicarious liability for physical
harm if:

 (a) the services are accepted in the reasonable belief that the actor or the actor's employees are rendering
the services; and
 (b) the independent contractor's negligence is a factual cause of harm to one who receives the services,
and such harm is within the scope of liability.

Rstmt (3rd) or torts: Liability for Physical and Emotional Harms Section 56: Duty Limitation as to Work
Entrusted to an Independent Contractor
(a) An actor who entrust works to an independent contractor owes no duty as to the manner in which
the work is performed by the contractor, except as provided in Subsection (b)
(b) When an actor entrusts work to an independent contractor but retains control over any part of the
work, the actor has a duty of reasonable care as to the exercise of the retained control.

 Did the empoyer do somehitng to hold them out as doing something under their authority as employer
 Did the 3rd party act reasonably in believing the authority?
 It does not matter if the act was intended to benefit employer, if Timmy cashes the money from the stock
buyer it could still be apparent authouity.

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Generally, a principal is immune from liability for the negligence of an independent contractor, or that of its
employees, in the performance of the contracted services. However, there are exceptions to the general rule, one
being the exception at issue referred to as “apparent authority.”

 See Section 429 of rstmt of torts (2nd): liability is imputed to a principal “who employs an
independent contractor to perform services for another which are accepted in the reasonable belief
that the services are being rendered by the employer or by his servants.

 Section 2.03 of the Rstmt (third) of agency defines “apparent authority” as the power held by an
agent or other actor to affect a principal’s legal relations with third parties when a third party
reasonably believes (not justifiable reliance) the actor has authority to act on behalf of the principal
and that belief is traceable to the principal’s manifestation.

 Rationale: so a principal may not choose to act through agents whom it has clothed with the
trappings of authority and then determine at a later time whether the consequence of their acts offers
and advantage.
 Hosptibal liability is not limited to the neglgince of physicians. Comment c of rstmt (3rd) of agency.
Apparent authority applies to any set of circumstances under which it is reasonable for a third party
to believe that an agent has authority, so long as the belief is traceable to manifestations of the
principal.

 Wong-Leong v. Hawaiian Independent Refinery, Inc., Supreme Court of HI, 1994

 Facts: Rellamas crashed into vehicle killing 3 people. He was returning home after drinking at a party
celebrating his recent promotion held at the picnic area on HIRI’s premises. After the accident, alcohol
was no longer served at the pau hana parties and the parties themselves were eventually discontinued.
 Rule: Under respondeat superior, an employer may be liable for the negligent acts of its employees that
occur within the scope of their employment.
 To recover under RS a P must establish:
 a negligent act of the employee, i.e. breach of a duty that is the legal cause of P’s injury and
 that the negligent act was within the employee’s scope of employment.
 Whether an employee is acting within the scope of his or her employment is ordinarily a
question of fact to be determined in light of the evidence of the particular case. The
applicable test is whether:
 the employee’s conduct was related to the employment enterprise or
 if the enterprise derived any benefit from the activity
 The analysis of negligence under respondeat superior should focus completely on the actions of the
employee, without consideration of the acts of the employer. A P need not show any act or fault of
the employer when defining the allegedly negligent act in a respondeat superior claim.
 RS liability may be imposed even if the foreseeable effects of the actor’s negligence conduct occur
outside the scope of employment
 Analysis:
 A RS claim may be made upon actor’s alleged negligent act of drinking while aware of the need to
drive, provided that the act takes place within the scope of employment. Rellamas was aware he had
to drive home and yet, by becoming intoxicated he impaired his ability to drive. Whether or not he
breached his duty of care presents a question of fact for the jury.
 Also, a reasonable trier of fact could infer that the promotion party was a custom incidental to the
enterprise rather than a purely social function and that HIRI benefitted either directly or indirectly
from the promotion party. Testimony said it was a morale booster. Also after the incident they
stopped serving drinks and people stopped going.

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  Conclusion: A reasonable trier of act could find a sufficient nexus in the instant circumstnaces between
the employee’s negligent act (drinking while award of the need to drive) and the employer’s interest
(fostering employee good will). The record provides support for a fiding that there was a history and
tradition of drinking activities in HIRI’s picnic area, and that this practice benefitted the enterprise. The
trier of fact could reasonably find that Rellamas was acting within the scope of his employment when he
negligently drank alcohol at this party; therefore, HIRI could be held vicariously liability for Rellamas’s
neglginent act. The 2 questions are remanded for jury determination.
 Class Notes 11/9/16:
 Wong Leong –
 Respondeat Superior. You’re looking at the employee first for the prima facie case of negligence.
The tie to employment is important. We need 2 incidents of negligence: one in scope of employment
(drinking at party knowing he had to drive) and the other was driving while drunk.
 Hypos:
 Suppose this particular employee does not drink. What if he is driving home and caused the same
accident because he was not paying attention while driving? No respondeat superior. It is
necessary to establish negligent conduct within the scope of employment. What made this a RS
case was that he was drinking in scope of employment knowing he had to drive, not the actual
drunk driving.
 What if he thought he had a ride home when he was drinking but then didn’t? Need to know if he
made the choice to drive under the influence while in the scope of employment.
 What if the negligence occurs off the employer’s premises? If the party was off the premises it
would likely still count.
 What if the employer did not provide the alcohol? Probably would still count.
 Suppose employees are allowed to take breaks at certain times of the day. What if the tort on a
3rd party occurs while employee is on a smoke break? Does employer have control?
 Frolic and detour: The trier of fact determines when something becomes a frolic versus a detour.
(See Note 5 pg 698). If the employees acts are enough to be considered a frolic, the employer may
not be laible but if it’s just a detour they can be.
 What if the employee’s injurious conduct was intentional and not just negligent? (See Note 6, pg.
698). JURISDICTIONS ARE APLIT O NTHIS QUESTION. WHERE THE INTENTIONAL
CONDUC OCCURRED IN THE COURS OF THE EMPLOYMNET COURTS ARE
INCREASINGLY WILLING TO IMPOSE VICARIOUS LIABILTY.
 Admitted evidence: Alcohol was no longer served at parties after the accident. BUT in Pitre this
kind of evidence was not allowed. They allow it here to attempt to prove that the negligence
occurred in scope of employment. It provided benefit to employer. As a matter of public policy it
would not be admitted to prove employee was negligent
 The fact that the conduct of the employee violates the employer’s rules then that alone is not a
defense by itself for the employer, Employer instructions are relevant when determining if the
conduct in question benefits the employer. RS is a robustly litigated element of tort doctrine.

 Jones v. Healthsouth Treasure Valuey Hosp.

 Facts: Dr. Doerr advised Jones to have surgery at TVH. He ordered B&B Autotransfusion to provide
the cell saver machine and the cell save technician for Mrs. Jones’s surgery. B&B perform all
autotransfusion services for TVH as an independent contractor. But TVH paid B&B and then billed the
patient. TVH’s consent fordms did not indicate their status as independent contractors. B&B’s
techniciians wore the hosptibal’s scrubs with not logos. She underwent lumbar spine surgery and
sustained a fatal air embolism.
 Rule: HI previously extended the doctrine of apparent agency to tort claims. Generally, a principal is
immune from liability for the negligence of an independent contractor, or that of its employees, in the

58
 performance of the contracted services. However, there are exceptions to the general rule, one being the
exception at issue referred to as “apparent authority.”
 See Section 429 of rstmt of torts (2nd): liability is imputed to a principal “who employs an
independent contractor to perform services for another which are accepted in the reasonable belief
that the services are being rendered by the employer or by his servants.
 Section 2.03 of the Rstmt (third) of agency defines “apparent authority” as the power held by an
agent or other actor to affect a principal’s legal relations with third parties when a third party
reasonably believe (not justifiable reliance) the actor has authority to act on behalf of the principal
and that belief is traceable to the principal’s manifestation.
 Rationale: so a principal may not choose to act through agents whom is has clothed with the
trappings of authority and then determine at a later time whether the consequence of their acts offers
and advantage.
 Hosptibal liability is not limited to the neglgince of physicians. Comment c of rstmt (3rd) of agency.
Apparent authority applies to any set of circumstances under which it is reasonable for a third party
to believe that an agent has authority, so long as the belief is traceable to manifestations of the
principal.
 Conclusion: We reverse the district court’s award of summary judgment to TV, and remand the case for
a determination whether appellants presented sufficient evidence for their claim of apparent agency to
survive summary judgment dismissal.
 Notes: The doctrine now appears as Rstmt (3rd) or torts: Liability for Physical and Emotional Harms
Section 65. In some cases, it is unclear whether an employee was an independent contractor. Courts
determine this by asking whether the employer exercised – or had the right to exercise- control over the
manner and means by which the person employed conducted the work. The rationale for the independent
contractor doctrine is that the employer justifiably relies on the skill of the contractor and does not enter
into any active control of the execution of the enterprise. Rstmt (3rd) Section 56.
 Most jurisdictions refuse to hold parents vicariously liable for the torts of their children simply
because of the parent-child relationship.
 Partners and joint venturers are legally responsible for any torts committed by the other partners or
joint venturers in the course of furthering the common activity. The modern tendency of the courts is
to limit the reach of the joint enterprise classification in those situations where there has been no
express agreement among the parties. A distinct situation arose in the law with the advent of the
automobile. Is the car owner lialib t for torts committed by those who drive the car with owner’s
consent?

Chapter 8: Strict Liability

Strict liaiblity is liability without proof of fault. In any given case it should not be assumed that the D was
without fault. Under either a strict liability or a negligence theory the causal link between the D and the P’s
injury still must be established. Based on policy choice to place accident losses from the activity on the actor
rather than on its victims. The D, it is said, “acts at her peril” in conducting such activities. No matter how much
care she takes to avoid injuries to others, she will be held strictly liable.

A. Animals
Restatement, 3d., §21 Intrusion by Livestock or Other Animals
An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of
another is subject to strict liability for physical harm caused by the intrusion.

Restatement, 3d., §22 Wild Animals

(a) An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild
animal.
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 (b) A wild animal is an animal that belongs to a category of animals that have not been generally
domesticated and that are likely, unless restrained, to cause personal injury.
 Focus is on the category of animals, not the particular animal in question
 Rationale: keeping a wild animal in a community is an uncommon, unnecessary, and highly dangerous
activity. Given the low utility, inappropriate location, and high risk of such acitivity, it might be appropriate
to ban it entirely. It is a good idea because
o 1. Those who are tempted to keep a tiger will hopefully give it serious thought and may decide to foego
it
o 2. Those who do need a tiger will take all precautions to avoid liability
o 3. The tiger’s victims will at least be compensated for injuries

Restatement, 3d., §23 Abnormally Dangerous Animals

An owner or possessor or an animal that the owner or possessor knows or has reason to know has dangerous
tendencies abnormal for the animal’s category is subject to strict liability for physical harm caused by the
animal if the harm ensues from that dangerous tendency.

Restatement, 3d., §24 Scope of Liability

Strict liability under §§20-23 does not apply
(a) if the person suffers physical or emotional harm as a result of making contact with or coming into
proximity to the defendant’s animal or abnormally dangerous activity for the purpose of securing some
benefit from that contact or that proximity; or
(b) if the defendant maintains ownership or possession of the animal or carries on the abnormally dangerous
activity in pursuance of an obligation imposed by law.
 Common carriers who are required to ship dangerous animals by statute or dog catchers who are required to
take a dangerous animal into their possession are not subject to strict liability per subsection (b).

Restatement, 3d., §25 Comparative Responsibility

If the plaintiff has been contributorily negligent in failing to take reasonable precautions, the plaintiff’s recovery
in a strict-liability claim under §§20-23 for physical or emotional harm is reduced in accordance with the share
of comparative responsibility assigned to the plaintiff.
 Contributory/comparative negligence might establish that defendant is not subject to strict liability, but is
not a defense in cases that proceed under the strict liability regime
 Express assumption of risk is a defense

 Duren v. Kunkel, Supreme Court of Missouri, En Banc, 1991

 Facts: Kunkel bought a limousine bull at a sale. One day on Kunkel’s land, Kunkel had Duren drive
the bull to a point about six feet from some blood on the ground. The bull turned and attacked Duren
causing serious injuries.
 Rule: In MI one who harbors a domestic animal with dangerous propensities known to the owner
may be held liable even without a showing of negligence on the part of the owner.
 Rstmt (2nd) Section 509: A possessor of a domestic animal that he knows or has reason to know
has dangerous propensities abnormal to its class is subject to liability for harm done by the
animal to another, although he has exercised the utmost care to prevent it from doing harm.
 For public policy reasons the rule requires actual or constructive knowledge of an abnormal
dangerous propensity of a domestic animal.
 A dog’s social utility justifies permitting the owner a degree of freedom from potential liability.
Other domestic animals, though naturally somewhat dangerous, also have utility to human
beings: Comment c of Rstmt excludes bulls, stallions, and rams from the list of abnormally
dangerous animals to be kept under the strict lability rule.

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  Rstmt (2nd) Section 518: Except for animal trespass, one who possesses or harbors a domestic
animal that he does not know or have reason to know to be abnormally dangerous is subject to
liability for harm done by the animal if, but only if, he is negligent in failing to prevent the harm.
 Issue: Whether P should have been permitted to submit a claim based on a theory of ordinary
negligence due to D’s failure to provide sufficient personnel to drive the bull from the corral.
 Analysis: here, the evidence falls short of est that Kunkel knew or should have known that he bull in
question had viscous propensity different from other bulls of its breed or class. Thus, a strict liability
case was not established. However, one who owns or possesses a bull may be found to have actual or
constructive knowledge of the animal’s normally dangerous propensities and be required to take
reasonable steps to prevent foreseeable harm to invitees and employees. A submissible case of
nelgigence is shown. Judgment is reversed and the cause is remanded for a new trial on the issue of
negligence based on D’s duty to P as an invitee or employee.
 Notes: Strict liaiblit is liability without proof of fault. In any given case it should not be assumed that
the D was without fault. Under either a strict liability or a negligence theory the causal link between
the D and the P’s injury still must be established.

 B. Dangerous Activities
 Why not ban high risk activities? Legislatures often do ban dangerous activities under particular
circumstance or in particular place. But many activities that pose unusual risk are also unusually
productive. Strict lability allows such socially useful activities, but requires them to bear the accident
costs associated with them.
 Rylands v. Fletcher, Excehquer Chamber, 1866
 Rylands v. Fletcher, House of Lords, 1868
 The D had introduced a dangerous force – a large body of water- onto his hand, which escape
unexpectedly and injured his neighbor’s property. No evidence he had been negligent in his
efforts to contain the hazard but the court held that the keeping of this metaphorical tiger support
strict liability for the resulting damage. This decision posed many doctrinal complexities, but the
underlying spirit of Rylands to impose strict liability on those who impose grave and truly
unusual risk on the comity.
 Losee v. Buchanan, Court of Appeals of NY, 1873
 The modern doctrine
 Today, many jurisdictions accept the principle that actors should be held labile without fault for
injuries resulting from activities that pose an unusually high risk of injury.
Restatement, 2d., §520 Abnormally Dangerous Activities
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
 existence of a high degree of risk of some harm to the person, land or chattels of others;
 likelihood that the harm that results from it will be great;
 inability to eliminate the risk by the exercise of reasonable care;
 extent to which the activity is not a matter of common usage;
 inappropriateness of the activity to the place where it is carried on; and
 extent to which its value to the community is outweighed by its dangerous attributes
 Shift from “ultra-hazardous” in the first Restatement to “abnormally dangerous” in the Restatement
2d. to reflect that the activity must be dangerous relative to its time and place

Restatement, 3d., §20 Abnormally Dangerous Activities

(a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm
resulting from the activity.
(b) An activity is abnormally dangerous if:
(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable
care is exercised by all actors; and
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 (2) the activity is not one of common usage.
Comment e: typically, the victim is a passive, uninvolved third party.
 The 3rd Restatement redefines “abnormally dangerous activity” and eliminates the last 2 factors
in the 2nd restatement:

 Rationale: high level of risk posed by such activates and also based on eh unilateral nature of the risk
the D has created. Driving is dangerous but drivers and accident victims typically share in creating
the risks of driving, while unusual activities generally involve a large risk created solely by the D.
Also, the unusual nature of the activity, which may be useful, but that judges believe should pay its
own way if it is to be tolerated.
 Economic advantages
 Cost avoidance: encourages people to find other ways to accomplish what they need or to at least
reduce the costs by taking extra precautions making the high-risk activities safer
 Cost spreading: SL places the loss from high risk activities on the party who can most easily
spread the costs of the enterprise by adding the cost of compensation for accidents resulting from
the activity to the price of the product: buy more insurance, raise cost of product. The victim
would have no such ability to protect itself.
 Not in common usage: The 3rd Restatement changes this from a factor to a necessary element of a
strict liability claim. Many strict liability cases have concluded that strict liability only applies if the
D’s activity was unusual or extraordinary as well as dangerous. This suggests that an activity might
give rise to strict liability in an area where it is rare but not in another where it is more common.
(drilling an oil well in OK versus downtown LA). An activity that involves great and irreducible risk
will not support strict liability if it is a matter of common usage: driving. Rationale: Activities that
are common, such as driving or building excavation, often involve creation of reciprocal risks
between actor and victim. The P who is hit by a car at one time probably travels by car herself. That
is why dog-bite victims have usually been required to prove negligence in order to recover.
 Many courts have embraced the Second Restatement multifactor approach to strict liability. The
third restatement suggests a somewhat simpler analysis, but is largely consistent with the thrust of
the Second. Under both formulas, strict liability should apply to activities so inherently dangerous
that the level of risk will remain high despite all reasonable efforts to reduce all reasonable efforts to
reduce it. If reasonable care can make the activity generally safe, courts will not impose strict
liability. If reasonably care cannot eliminate a substantial risk of grave physical injury, strict liability
will probably apply, even though the activity is socially valuable and conduct conscientiously. The
D’s best argument to avoid strict liability in such cases is that the activity is one of “common usage.”
Whether or not courts expressly adopt the third restatement formulation in place of the widely
adopted Second Restatement, they will probably decide cases almost entirely on the 2 factors
emphasized in the third.
 Klein v. Pyrodyne Corp., Supreme Court of Washington, En Banc, 1991
 Indiana Harbor Belt R.R. Co. v. American Cynamid Co., US Court of Appeals, 7th Circuit, 1990
 Foster v. Preston Mill Co., Supreme Court of Washington, 1954

Chapter 9: Products Liability

 A. Negligence Actions – Overcoming the Privity Barrier.

 MacPherson marked the beginning of the end of the privity rule in products liability cases. The
notion that liability to persons not in privity of contract for negligently manufactured products
depends on some finding that the product is in some way potentially dangerous was soon abandoned
in most jurisdiction. All that is necessary is that the product presents a foreseeable risk of physical
injury to person or property, if it should be neglgignetly manufactured. Once it was generally
accepted that an action for neglign
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 Thomas v. Winchester, Court of Appeals of NY, 1852
 Facts: Mrs. Thomas’ physician prescribed for her a dose of dandelion. Her husband bought what was
believed to be a bottle of dandelion at the store of Dr. Foord. The medicine gave her alarming
effects. The medicine administered was belladona, and not dandelion but it was labeled dandelion.
Dr. Foord purchased the bottle from a Aspinwall who bought it from the D believing it to be
dandelion.
 Rule: In an act of negligence imminently dangerous to the lives of others, the party guilty of the
negligence is liable to the party injured, whether there be a contract between them or not; if it not so
dangerous, the negligent party is liable only to the party with whom he contracted, and on the ground
that negligence is a breach of the contract.
 Analysis: However, here the D was a dealer in poisonous drugs. He would have been punishable for
manslaughter if she had died. In the other cases, no such imminent danger existed. D’s negligence
put human life in imminent danger. His contract with Aspinwall does not excuse the wrong done to
the Ps. It was part of the means by which the wrong was effected. The D by affixing the label to the
jar, represented its contents to be dandelion; and to have been “prepared” by his agent Gilbert. The
word “prepared” on the label, must be understood to mean that the article was manufactured by him,
or that it had passed through some process under is hands, which would give him personal
knowledge of its true name and quality. Whether Foord was justified in selling the article upon the
faith of D’s label would have been an open question in an action by the Ps against him. But as far as
D is concerned, Foord was under no obligation to test the truth of the representation.
 Concurring: Stated that he violated a statute.
 Winterbottom v. Wright is the most famous expression of the old common-law privity requirement.
 Loop v. Litchfield says dangerous subjects include: poison, gunpowder, torpedos, spring guns, a loaded
rifle, or the like.
 In Losee v. Clute, the case of the explosion of a steam boiler. P brought a negligence action against the
manufacturer of the boiler. The court reinforced the privity rule. They said the risk of injury was too
remote. The buyer in that case had not only accepted the boiler but had tested it. The manufacturer knew
that his own test was not the final one. The finality of the test has a bearing on the measure of diligence
owing to persons other than the purchaser.
 Devlin v. Smith was a case in which a 90 foot high scaffold was defective and caused the death of
Devin. The court said any defect in the contstruction of the scaffold would foreseeably result in harm to
users that are not in the contract (construction workers)

 MacPherson v. Buick Motor Co., Court of Appeals of New York, 1916

 Facts: D is a manufacturer of cars. It sold a car to a retail dealer who resold it to P. While P was in
car it collapsed and threw him out, injuring him. One of the wheels was made of defective wood.
The wheel was bought by D from another manufacturer. However, the defects could have been
discovered by reasonable inspection, and that inspection was omitted. There is no claim that D knew
of the defect and willfully concealed it.
 Issue: Whether the D owed a duty of care and vigilance to anyone but the immediate purchaser.
 Rule: In old cases the distinction was made between conduct that was negligent but not likely to
result in injury to anyone except the purchaser and whether it was of imminent danger. The early
cases suggest a narrow construction of the rule. Later cases, however, evince a more liberal spirit. A
scaffold is not inherently a destructive instrument. It becomes destructive only if imperfectly
constructed. A large coffee urn may have within itself, if negligently made, the potency of danger,
yet no one thinks of it as an implement whose normal function is destruction. What is true of the
coffee urn is equally true of bottles of aerated water. Therefore, the principle of Thomas v.
Whinchester is not limited to poisons, explosives, and things of that nature that are implements of
destruction in their normal operation. If the nature of a thing is such that it is reasonably certain to
place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives
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 warning of the consequences to be expected. If to the element of danger there is added knowledge
that the thing will be used by person other than the purchaser, and used without new tests, then,
irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.
There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost
anything in a way that will make it dangerous if defective. That is not enough to charge the
manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be
sometimes a question for the court and sometimes a question for the jury. There must also be
knowledge that in the usual course of events the danger will be shared by others than the buyer.
 Analysis: the D was not absolved from a duty of inspection because it bought the wheels from a
ruptable manufacturer. It was responsible for the finished product. It was not at liberty to put the
finished product on the market without subjecting the component parts to ordinary and simple test.
 Notes: Cardozo stressed that NY Law on the subject of a manufacturer’s liability to third person was
laid down in Devlin v. Smith and that the MacPherson case is merely an application of the doctrine
of Devlin. MacPherson marked the beginning of the end of the privity rule in products liability cases.
The notion that liability to persons not in privity of contract for negligently manufactured products
depends on some finding that the product is in some way potentially dangerous was soon abandoned
in most jurisdiction. All that is necessary is that the product presents a foreseeable risk of physical
injury to person or property, if it should be neglgignetly manufactured. Once it was generally
accepted that an action for neglign

 B. Misrepresentation and Breach of Warranty – Negligence law is not the only possible approach to
product disappointments. Because product sales are often accompanied by respresentations concerning
the goods and because they typically involve a contract between the buyer and seller, both
misrepresnetiaotn and warrant law offer potential remedies to P

 1. Misrepresentation
Class notes: Misrepresentation counts even if the misrepresentation is not made fraudulently or negligently or
without a contract. It counts even if the misrepresentation is not made fraudulently or negligently or without a
contract. You can be a consumer who did not even buy the product. If the claim is targeted to a vulnerable
group then it might be justifiable that a person relied on the representation.

 Restatement (Second) of Torts Section 402B: Misrepresentation by Seller of Chattels to Consumer

 One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the
public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him
is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon
the misrepresentation, even though
 (a) it is not made fraudulently or negligently, and
 (b) the consumer has not bought the chattel from or entered into any contractual
relation with the seller.
 Notes: the P may recover on Section 402 B misrepresentation claim even in the absence of
manufacturer negligence.

 Restatement (Third) of Torts: Prod. Liab. § 9 (1998)

 One engaged in the business of selling or otherwise distributing products who, in connection with
the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation of material fact
concerning the product is subject to liability for harm to persons or property caused by the
misrepresentation.

 2. Breach of Warranty

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 When there is a direct contractual relationship between the injured P and the seller of a product, a
breach of contract action
 Notes: The leading case marking the modern liability under the warranty approach is Henningsen

 C. Strict (Defect) Liability in Torts

 1. Historical Development
 Judge Traynor argued that “if public policy demands that a manufacturer of goods be responsible for
their quality regardless of negligence there is no reason not to fix that responsibility openly.”
 Greenman v. Yuba Power Products, Inc., Supreme Court of California, 1963
 Facts: P brought this action for damages against the retailer and the manufacturer of a
Shopsmith, a combination power tool that could be used as a saw, drill, and wood lathe. After he
had worked on the piece of wood several times without difficulty, it suddenly flew out of the
machine ad struck him on the forehead, inflicting serious injuries. P introduced substantial
evidence that his injuries were caused by defective design and construction of the Shopsmith.
 Rule: A manufacturer is strictly liabile in tort when an article he places on the market,
knowing that it is to be used without inspection for defects, proves to have a defect that
causes injury to a human being. The purpose of such lability is to insure that the costs of
injuries resulting from defective products are borne by the manufacturers that put such products
on the market rather than by the injured persons who are powerless to protect themselves.
 Analysis: Implicit in the machine’s presence on the market, however, was a representation that it
would safely do the jobs for which it was built. Under these circumstnaces, it should not be
controlling whether P selected the machine because of the statements in the brochure, or because
of the machine’s own appearance of excellence that belied the defect lurking beneath the surface,
or because he merely assumed that I would safely odo the jbobs it was builti to do. It should not
be controlling whether the details of the sales from manufactuer to retailer and from retailer to
P’s wife were such that one ore more of the implied warranties of the sales act arose. To
establish the manufactuerer’s liability it was sufficient that P proved that he was injured while
using the Shopsmith in a way it was intended to be used as a result of a defect in design and
manufactuer of which P was not aware that made the Shopesmith unsafe for its intended use.

 Shortly after Greenman was decided the ALI promulgated Section 402A. which became the
cornerstone of a rapid movement toward “strict” products liability. The importance of this
provision can hardly be overstated.

Restatement (Second) of Torts § 402A (1965)

 (1) One who sells any product in a defective condition unreasonably dangerous to the user
or consumer or to his property is subject to liability for physical harm thereby caused to
the ultimate user or consumer, or to his property, if
o (a) the seller is engaged in the business of selling such a product, and
o (b) it is expected to and does reach the user or consumer without substantial change
in the condition in which it is sold.
 (2) The rule stated in Subsection (1) applies although
o (a) the seller has exercised all possible care in the preparation and sale of his
product, and
o (b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller.

Caveat:
The Institute expresses no opinion as to whether the rules stated in this Section may not apply

65
(1) to harm to persons other than users or consumers;
(2) to the seller of a product expected to be processed or otherwise substantially changed before it reaches the
user or consumer; or
(3) to the seller of a component part of a product to be assembled.

 2. Plaintiffs ad Defendants
 Beyond users or consumers – liability to bystanders. Shortly after section 402 was published in final
form, with its caveat as to whether liability extended to person other than those who might be
classified as “users or consumers,” the cases started to extend strict liability for defecteive products
to “mere ystanders,” at leastif they were foreseeable victims.
 Comment f: f. Business of selling. The rule stated in this Section applies to any person engaged in the
business of selling products for use or consumption. It therefore applies to any manufacturer of such
a product, to any wholesale or retail dealer or distributor, and to the operator of a restaurant. It is not
necessary that the seller be engaged solely in the business of selling such products. Thus the rule
applies to the owner of a motion picture theatre who sells popcorn or ice cream, either for consumption
on the premises or in packages to be taken home. The rule does not, however, apply to the occasional
seller of food or other such products who is not engaged in that activity as a part of his business. Thus
it does not apply to the housewife who, on one occasion, sells to her neighbor a jar of jam or a pound of
sugar. Nor does it apply to the owner of an automobile who, on one occasion, sells it to his neighbor, or
even sells it to a dealer in used cars, and this even though he is fully aware that the dealer plans to
resell it.
 One important consequence of the movement to strict liability was that everyone in the chain of
distribution who sells a defective product became a proper D. Ps no longer needed to search out the
negligent D in the chain of distribution. The practical effect of this legislation is that the wholesalers
and retailers are liable only when they have been negligent or when the manufacturer has gone out of
business or is unreachable through judicial process.
 The P must still show that the D owed a duty to the P and breached that duty. The P must also prove
damages and a causal connection between the breach of duty and the damages.

 3. Defining a Defect: To impose liability there has to be something about the article which makes it
dangerously defective without regard to whether the manufacturer was or was not at fault for such
condition
 Section 402A’s definition of defectiveness.
 Comment g: Defective condition – must be in defective condiitin at the time it leaves the seller’s
hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably
dangerous to him. Safe condition at the time of delivery by the seller will, however, include
proper packaging, necessary sterilaization, and other precautions required to permit the product
to remain safe for anormal length of time when handled in a normal manner.
 Comment i: Unreasonably dangerous – the article sold must be dangerous to an extend beyond
that which would be contemplated by the ordinary consumer who purchases it, with the
ordineary knowledge common to the community as to its characteristics.
 Both comments g and i adopt a “consumer expectations” test. A product is defective and
unreasonably dangerous when the risks it poses are “beyond the contemplation” of the ordinary
consumer. This worsk well when the products are whiskey and butter but proved less successful
when the courts were confronted with cases involving complex machinery like cars and planes.
 The varieity of defect: In teime the law came to recognize 3 distinct types of defect: manufacture,
desing, and warning, all with somewhat different legal definitons.

 D. The concept of Defect in Products Liability Law Today.

 The new restatement replaces Section 402A with 21 separate sections

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Restatement (Third) of Torts: Prod. Liab. § 1: One engaged in the business of selling or otherwise distributing
products who sells or distributes a defective product is subject to liability for harm to person or property caused
by the defect.

Restatement (Third) of Torts: Prod. Liab. § 2 (1998)

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective
in design, or is defective because of inadequate instructions or warnings. A product:

 (a) contains a manufacturing defect when the product departs from its intended design even though all
possible care was exercised in the preparation and marketing of the product;
 (b) is defective in design when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor,
or a predecessor in the commercial chain of distribution, and the omission of the alternative design
renders the product not reasonably safe;
 (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the provision of reasonable instructions or
warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and
the omission of the instructions or warnings renders the product not reasonably safe.

Restatement, 3d., §3 Circumstantial Evidence Supporting Inference of Product Defect

It may be inferred that the harm sustained b the plaintiff was caused by a product defect existing at the time of
sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of
sale or distribution.

Strict liability in the sense of liability without fault exists only for manufacturing defects. The existence of both
design and warning defects turns on the “reasonableness” of the design or warning.

 1. Manufacturing Defects
 Smmot v. Mazda Motors of America, Inc. , US Court of Appeals, 7th Circuit, 2006 – Res Ipsa is applied
to manufacturing defects only.
 Facts: Mrs. Smott was driving at 35 mph and hit a chunk of asphalt and the airbags triggered causing
her injuires.
 Rule: Her lawyer wanted to use res ipsa. However, the doctrine required that the D had exclusive
control of whatever it was that caused the accident. If taken literally this would bar applying to
prouducts cases. However, Res ipsa applies in products cases (because an accident can itself be
evidence of liability) as long as the product defect that is claimed to have caused the accident existed
before the D shipped the product rather than being created by tampering or use after he parted with
it. D can contest the prima facie case with evidence that this particular could and did occur without
negligence on his part. Res Ipsa is not a device forcing the D to presne tevidnec; it is rather the
acknolwedgemnt of a probabily that the accident was due to the D’s neglginect. That probability is
weakended, but not necessarily to point of extinction, by contrary evidence presented by the D. So
really presumption should be changed to permissible inference of negligence. In res ipsa the P does
not initially need to present expert testimony. Consistent with the view that the function of res ipsa is
just to identify a ground for an inference of negligence, allows the P to present expert testimonty to
show that such an injury would indeed, despite aht the D may have tried to show, not ordinarily
occur in the absence of negligence.

67
  Issue: The issue is not whether the D was negligent but whether its product, namely the car in which
Mrs. Smoot was injured was defective. However, here need be no practical difference between a
claim that a product was negligently manufactured and a claim that it has a defect rendering it
unreasonably dangerous so res ipsa is applied in products cases.
 Analysis: Here the P could not prove a product defect without expert testimony so res ipsa did not
apply. Without it the Ps were left with the recall notice plus a certain implausibility in the notion that
a properly controlled airbag would deploy when a car travelling at a relatively low speed hit a chunk
of asphalt. The expert testimony was weak and a case based on so little evidence gives rise to an
inference that the Ps searched no further because they were pessimist that their case had any real
merit.
 Notes: the problems that confront Ps in manufacturing defect cases almost unifmorly involved
proving the existence of a defect at the time the product left the possession of the D. The difficulty
arises in differently forms. In some cases the product is literallyd estoryed int eh accident, leaving
little evidence of what went wrong. In another group of cases there is a controversy as to whether the
defect casused the accident or the accident casued the defect.
 Restatement (third) of Torts Section 3 clarifies any ambiguity concerning the application of a
circumstantial evidence rule in products liability cases:
 Posner said there are significant differences between res ips and the circumstantial evidence rule
in products cases: Res Ipsa is a negligence doctrine directed to the question of whether the D
exercised due care, whereas products liabilyt focuses on the product only. Also the second
elemtn of res ipsa requies that the D have control of the instrumentaility whereas the second
elemnt of products liability requires the product to have left the D’s control in a defective
condition. However in Smoot Posner say s there is no practical differenc.
 The frequent focus on circumstantial evidence in manufacturing defect cases should not
cuase us to lose sight of the fact that under the Third Restatment this remains a matter of
strict liability. The P must prove that when the product left the hands of the manufacturer
it deviated from its design specs in a manner that rendered it unreasonably dangerous. The
P does not have to demonstrate that this deviateion was the result of negligence.
 Restatement(third) section 7 deals directly with food.

 2. Design Defects
 Branham v. Ford Motor Co., Supreme Court of SC, 2010
 Facts: Cheryl Hale purchased the 1987 Ford Bronco in June of 1999 for a nominal sum. One day she
took her eyes off the road and responded by overcorrecting to the left. The vehicle rolled over and
Branham was thrown from the vehicle and was injured. Branham alleged a design defect related to
the rollover propensity of the Bronco.
 Rule: Design defect claim: A P must show that the design of the produced caused it to be
“unreasonably dangerous.” There are 2 tests to determine whether a product was unreasonably
dangerous as a result of a design defect:
 1. The consumer expectations test – the test of whether a product is or is not defective is whether
the product is unreasonably dangerous to the consumer or user given the conditions and
circumstances that foreseeably attend use of the product.
 2. The risk-utility test – numerous factors must be considered when determining whether a
product is unreasonably dangerous, including the usefulness and desirability of the product, the
cost involved for added safety, the likelihood and potential seriousness of injury, and the
obviousness of danger.
 SC hold that the exclusive test in products liability is the risk-utility test with its requirement of
showing a feasible alternative design. This is what the third restatement did. It is the best means
for analyzing whether a product is designed defectively. Unlike the consumer expectations test,
the focus of a risk-utility test provides objective factors for a tire of fact to analyze when

68
 presented with a challenge to a manufacturer’s design. Conversely, we find the consumer
expectations test and its focus on the consumer ill-suited to determine whether a product’s design
is unreasonably dangerous.
 Restatement (Third) of Torts: Prod. Liab. § 2 (1998)
 A product is a defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable alternative design by the
seller or other distributor, or a predecessor in the commercial chain of distribution, and the
omission of the alternative design renders the product not reasonably safe;
 Comment a. the use of post-distribution evidence to evaluate a product’s design
through the lens of hindsight is improper
 The inquiry asks whether the increased costs (lost dollars, lost utility, and lost safety) of altering
the design – in the particular manner the P claims was reasonably necessary to the product’s
safety – would have been worth the resulting safety benefits.
 A product is not in a defective condition unreasonably dangerous merely because it “can be
made more safe.”
 In a product liability design defect action, the P must present evidence of a reasonable alternative
design. The P will be required to point to a design flaw in the product and show how his
alternative design would have prevented the product from being unreasonably dangerous. This
presentation of an alternative design must include consideration of the costs, safety and
functionality associated with the alternative design.
 P must show that the product was in a defective condition at the time that it left the hands of the
particular seller and unless evidence can be produced which will support the conclusion that it
was then defective, the burden is not sustained.
 Similar accidents are admissialbe if they tend to prove or diprove some fact in dispute. A p must
present a factual foundation for the court to determine that the other accidents were substantially
similar to the accidenta t tiise.
 Analysis:
 Whether the Ford Bronco was defectively designed and in a defective condition unreasonably
dangerous must be determined as of the 1986 manufacture date of the vehicle.
 To the extent that Branham is able to establish the rate or number of rollover accidents of the
Brocon was greater as compared to other vehicles in its class, such evidence may well be
releavatn on whether the Bronco was unreasonably dangerous.
 Where the preice cause of an accident is not known, Bronco II rollover accident data has
relevance when compared to rolloever accident date of other vehicles in class.
 Hale’s neglginegnce is irreleavant because cars are designed with utility and safety in mind, and
careless driving is a foreseeable reality. The general nature of the alleged negligent driving on
the part of Hale was part of the evaluative process that culminated in the ultimate decision of
Ford to design, manufacture and market the Bronco II to the driving public.
 Notes: the second restatement’s consumer expectation test has largely been replaced by a risk-utility
analysis. Only a handful of states have retained consumer expectations as the sole test in design
defect cases.
 Crashworthiness: the crashworthiness doctrine imposes liability on manufacturers for design
defects which only enhance injuries rather than cause them. The doctrine is applicable when a
design defect, not causally connected to the accident, results in injuries greater than those which
would have resulted from the accident had there been no design defect. Enhancement of injuries
is the gist of crashworthiness cases, not the precipitating cause of the accident. The focus in the
enhanced injuries suffered by the P, not injuries suffered due to the underlying accident. Where it
is possible to divide P’s injuries in this way, courts will instruct the jury to do so.
 Consumer tastes and product desirability: The Claytor court, cited in Branham states that a
product’s desirability should play a role in the risk benefit analysis. Desirability is closely related
69
 to consumer tastes. Indeed, some “obvious defects” that may reduce crashworthiness are the very
reason the consumer chooses the product.

 Riley v. Becton Dickson Vascular Access, Inc., US District Court, ED Pennsylvania, 1955
 Judge troutman noted that the focus of the risk-utility test should be on the theoretical risk of injury
to all users of the product not the particular injury suffered by the P.
 3rd restatement: Comment b: acknowledge that sometimes a P may be able to rpove a design defect
through circumstantial eviden arising fomr the way a product malfunctions.

 Grunsberg v. UpJohn Co.

 Holding: A drug approved by the FDA, properly prepeared, compounded, packaged, and distributed,
cannot as a matter of law be “defective” in the absence of proof of inaccurate, incomplete,
misleading or fraudulent information. This expands comment k of section 402A.
 Notes: most jurisdictions agree and have refused to conclude that all prescriptionon drugs are
unavoidably unsafe. Rather, comment k is an affirmative defecnse to be assessed on a case by case
basis. The third restatement seems to reject comment k.

Restatement, 3d., §6 Liability of Commercial Seller of Distributor for Harm Caused by Prescription Drugs and
Medical Devices
(a) A manufacturer of a prescription drug or medical device who sells or otherwise distributes a defective
drug or medical device is subject to liability for harm to persons caused by the defect. A prescription
drug or medical device is one that ma be legally sold or otherwise distributed only pursuant to a health-
care provider’s prescription.
(b) For purposes of liability under subsection (a), a prescription drug or medical device is defective at the
time of sale or other distribution the drug or medical device:
1. contains a manufacturing defect as defined in §2(a); or
2. is not reasonably safe due to defective design as defined in subsection (c); or
3. is not reasonably safe due to inadequate instructions or warnings as defined in subsection (d).
(c) A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable
risks of harm posed by the drug or medical device are sufficiently great in relation to its foreseeable
therapeutic benefits that reasonable health-care providers, knowing of such foreseeable risks and
therapeutic benefits, would not prescribe the drug or medical device for any class of patients.
(d) A prescription drug or medical device is not reasonably safe due to inadequate instructions or warnings
if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to:
1. Prescribing and other health-care providers who are in a position to reduce the risks of harm in
accordance with the instructions or warnings; or
2. The patient when the manufacturer knows or has reason to know that health-care providers will not
be in a position to reduce the risks of harm in accordance with the instructions or warnings.
(e) A retail seller or other distributor of a prescription drug or medical device is subject to liability for harm
caused by the drug or device if:
1. At the time of sale or other distribution the drug or medical device contains a manufacturing defect
as defined in §2(a); or
2. At or before the time of sale or other distribution of the drug or medical device the retail seller or
other distributor fails to exercise reasonable care and such failure causes harm to persons.

 E&E
 The privity reqruiemnet was rejected in MacPherson and virtually all courts today would follow
MacPherson.
 Reasons for strict products liablity:
 It is often difficult to prove that a manufacturer’s negligence led to the defect atht injured the P.
 There will be no remedy against the avaialbe D.
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  Ps have also invoked several contractual theories of recovery for injuries due to product defects. One
such theory is breach of express warranty under Article 2 of the UCC but this remedy is limited.
Breach of implied warranty is better but limits the class of Ps.
 Misrepresention is a tort that could also be used. The P est. a misrepresentation claim by showing:
 D made a misrepresentation about a fact material to the transaction
 The P acted in reliance on that misrepresentation
 She suffered injury because the prudct wasnot as represented by the seller.
 Advantages: No defect is required, it just has to fail to live up the representation
 Limitations: must have been an inaccurate representation by the seller about the particular
characteristic of the product that led to the P’s injury. Also, it my not support recovery for third
parties such as bystanders.
 The development of strict liability for defective products.
 Greenman: Justic Traynor held a manufacturer strictly laible for an injury caused by a defective
power tool. Strict liability was appropriate in order to insure that the costs of injuries resulting from
defective products are borne by the manufacturers that put such products on the market rather than
by the injured person who are powerless to protect themselves.
 Huge development in products liability was Section 402A. It authorizes recovery
 By a user or consumer
 From a seller
 Who is engaged, in the business of selling the product
 For a physical harm
 Caused by a defective product
 That is unreasonably dangerous
 The section makes no mention of fault. So the seller is subject to liability to the user or consumer
even though he has exercised all possible care in the preparation and sale of the product.
 Types of Product Defects:
 Under Section 402A, a manufacturer is liable for injuries resulting from the “defective
condition” of its products. Such product defects usually fall into one of three categories:
Manufacturing defects, design defects, and warning defects.
 Manufactugin Defects: P alleges that the product was defective because it did not meet the
manufactuerer’s own specificiations for the product. Today, these are the only true strict
products laiblity claims recongnized in most states. The P recovers by showing that he
product does nt meet the manufactuer’s own specs for the product, and as a result the product
was dangerously defective. It does not matter how the defect occurred. The p need no show
that negligence led to the defect, or that manufactuer should have discovered the defect. She
need only establish that the defect existed, made the product unreasonably dangerous, and
cused her injury.
 Design Defects: A product can also be defective if its desin makes it unnecessarily dangerous
to the user. A manufacturer should not be liable simply because its product involved some
risk of injury. If so auto akers would be liable for all motor vehicle injuries. Since many
products cannot be functional without imposing some level of risk, products liability law
needs some standard for distinguishing acceptable designs from those that pose unacceptable
risks.
 To do this, a good many courts have applied the consumer expectations test from Section
402A: A product is unreasonably dangerous if its is dangerous to an extent beyond that
which would be contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its characteristics.
 Benefits: More intuitive, leaving more leeway to the jury to make a common sense
evaluation of the product. The P does not have to demonstrate a safer way to design

71
 theproduct. She need only show that the product was less safe than a reasonable
consumer would expect. This may mean no experts are required.
 However, others have used a risk/utility balancing approach to design defects cases
applying a number of factors, whether the product’s design represents a fair balance
between the cost of designing the product to prevent the risk of injury, the effect the
redesign would have on the utlity o the products, and the extent of the risk that the
product psoes.
 The third restatement endorses the risk/utility approach to desing defects but also
requires the P to establish that a “a reasonable alternative design” would have
eliminated the risk that injuired the P. the evidence must show that the suggested
alternatives are not only technically feasible but alos practicable in terms of cost and
the over-all design and operation of the product. Without a reasonable alternative
desing the product is presumably not defective under the third restatement approach.
Yet it may still pose more danger than consumers would expect.
 The majority of state now applyt the Third Restatement approach.
 Branham: The risk-utility test – numerous factors must be considered when
determining whether a product is unreasonably dangerous, including the usefulness
and desirability of the product, the cost involved for added safety, the likelihood and
potential seriousness of injury, and the obviousness of danger.
 The inquiry asks whether the increased costs (lost dollars, lost utility, and lost
safety) of altering the design – in the particular manner the P claims was
reasonably necessary to the product’s safety – would have been worth the
resulting safety benefits.
 A product is not in a defective condition unreasonably dangerous merely because
it “can be made more safe.”
 In a product liability design defect action, the P must present evidence of a
reasonable alternative design. The P will be required to point to a design flaw in
the product and show how his alternative design would have prevented the
product from being unreasonably dangerous. This presentation of an alternative
design must include consideration of the costs, safety and functionality associated
with the alternative design.
 P must show that the product was in a defective condition at the time that it left
the hands of the particular seller and unless evidence can be produced which will
support the conclusion that it was then defective, the burden is not sustained.
 Similar accidents are admissialbe if they tend to prove or diprove some fact in
dispute. A p must present a factual foundation for the court to determine that the
other accidents were substantially similar to the accidenta t tiise.
 Design defect claims will generage a vigourous defense from manufacturers. A
manufacturing defect claim alleges that a single unit of a product was defective, because
something went awry in the manufacturing process. When the P claims that the product
desing is defective, a lot more is at stake, since a design defect claim asserts that all utnits
of the product are defective. A finding th thte proudct’s desing is unreasonably dangerous
suggests that the product should not be marketed at all, unless it is redesigned to reduce
the risk of injury. In addition, such a finidng may lead other users injured by the same
product to sue for their injuries and to assert that the manufacturer is estopped from
denying that the product was defective.
 Defects due to Failure to Warn: Many products are safe if used as intended, but pose risks of
injury if not properly used. In such cases, the user is often the “cheapest cost avoider”: She
can avoid the risk posed by the product at a low cost, by taking precautions in using it, while
redesigning the product to eliminate the risk would be considerably more costly-or

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 impposible. However, if the user is to avoid the risk, she must have clear directions and
warnings to allow her to do so. Thus, a product may be safe enough with the appropriate
warnings and directions, but unreasonably dangerous without them.
 What dangers does a manufacturer have the duty to warn users about? Each case turns on
the facts, it is hard to articulate a standard other than that of reasonable care. The
manufacturer should consider the extent of the risk, the likelihood that it will arise, the
user’s likely understanding about the danger, the means available to convey a waringng,
the likelihood that too many warnings will decrease the effectiveness of eac, and other
factors in decidings which warnings to give.
 Third Restatement Comment i: “Warnings must be provided for inherent risks that
reasonably foreseeable product users and consumers would reasonably deem material
or significant in deciding whether to use or consume the product.” The reasonable
standard essentially makes it a negligence claim.
 If a warning is required, it must be an adequate warning. The jury will likely be instructed
to assesss the adequacy of the warning under a general reasonableness anlysis.
 A product may also be defective because it provides inadequate directions for use or
assembly. Directions are different from warnings, and both may be required.
 More Products Liablight: Commone Defenses to Strict Products Liability Claims
 Affirmative defense refers to evidence offered by a D that may avoid liability, even though te P
proves the basic elements of her claim.
 Contributory negligence: under the second restatement contributory negligence was not a bar to a
P’s recovery. However, with the advent of comparative negligence, a majority of states apply
comparative fault to strict products liability claims as well as negligence claims. Some states still
adhere to the notion that a P’s negligence is irrelevant to a strict products liability claim. NC
treats contributory negligence as a full defense to a strict products liability claim. Any negligence
of the P bars her from recovery entirely.
 Assumption of the Risk:
 Majority Position: many states that have comparative negligence regimes treat a P’s
conscious choice to encounter a risk as a form of negligent conduct. Thus, the jury will be
instructed to assign the P a percentage of fault for deliberately encountering the risk, just as
they do for other forms of P’s negligence. Consequently, assumption of the risk, like other
forms of P’s negligence, become a partial defense to a negligence claim rather than a
complete bar to recovery.
 Minority positions: A few states, however, continue to treat conscious assumption of the risk
as a separate and full defense to a negligent action, even though they otherwise appy
comparative negligence to account for a P’s negligence.
 Products Liability: Under 2nd restatmet a P’s deliberate assumption of the risk barred her
from recovery entirely on a SL theory. In recent years, however, a good many states that
have adopted comparative negligence, and treat assumption of risk as a form of negligence in
negligence cases, have adopted the same approach for strict PL claims as well. That is, they
now treat a P’s conscious choice to encounter the risk posed by a defective product as a form
of comparative fault. This is the positionof the third restatement.
 Misuse; Sometimes mususe defeats the P’s prima facie claim, because it indicates that the
product was not defective; in other cases, it constitutes a form of P misconduct that reduces or
bars recovery.
 Defeat proof of defect: If people use a product in truly unforeseeable ways, ways so
unusuaual that the manufactuere, when it made the product, would not reasonably have
anticipated them. In these cases, a court may find that the product was not defective, even
though it was dangerous when used as the P did, bcuase it was never designed to put to that
use. In thses cases, the P’s misuse is not an affirmative defense but rather prevents the P from
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 establishing a prima facie case. She cannot establish that the product was defective, since she
does not show that it was used for a purpose the manufacturer intended or should have
foreseen. Somes states consider this an affirmative dfense instead of as defeating P’s proof of
her prima facie case.
 Affirmative or partial defesne: In other cases, the P’s injury may be created by a defect in the
product, but also by her own misuse of it. Example: Take, for example, the P who stands on
the pain shelf of a stepladder. It might be foreseeable that it would be used this way and there
should have been a warning. However, her doing so was a negligent misuse by the user. This
defense would depend on the jurisdictions view of comparative negligence. Same for
assumption of the risk.
 Resulting harm was unforeseeable: Also misuse of a product may undermine a P’s strict PL
claim in yet another way. She may misuse a product in such an unexpected way that she loses
based on ordinary proximate cause analysis. This is probably an easier way to look at it but
under current strict PL law the term misuse is frequently invoked, in each of the forms
discussed above.
 Open and Obvious Danger Defense: If there is an alternative design just because the danger was
obvious does not bar recovery. But if the obvious danger is not due to a desing flaw, if a danger
is obvious, there is no need to warn about it, because people know about obvious dangers. The
manufactuer has no duty to warn people of dangers they already understand. If the danger is not
obvious, the user may not understand it, and the manufacturer may be liable on a failure to warn
claim if it does not warn of it.
 State of the Art Defense: Manufacturers are not liable for failing to warn of a danger unless they
knew or should have know of the need for a warning.
 Modification: It must be that it transformed the object. An unforeseeable
 Test: In order to make out a PL Cause of action under any particular theory of defect, P must allege
and prove that the D was a seller, the product was defective, the defect existed at the time that the
product left the seller’s possession, cause if fact and proximate, and damages.
 Manufacturing Defect: P must allege and prove that the product was unreasonably dangerous by
virtue of a manufacturing defect – that is that it was delievered to the P in a manner that did no
conform to the products design. This PL c/a is the most similar to strict liability, whearas the
other 2 theories are more of a negligence hybrid. IF the product was manufactured defectively, it
does not matter how cearely the seller was in testing or assuring safe production. Strict liability
cares not for fault.
 CIrcusmtnatial evidence may be needed to infer that there was a defect
 Experts
 No need to rule out every other possible cause of injury, just need to create the inference
that it more likely than not cause the defect.
 Design Defect: Look to the desing of the product to show the product’s defectiveness. To prove
defective design:
 Some court use consumer expectations: Product failed to perform as safely as an ordineary
consumer would expect.
 Other courts think risk/utilty anlysis is more appropriate where the question of design defect
is one which is too technical for an ordinary consumer to form an opinion without the aid of
experts. The Branham risk-utility test – numerous factors must be considered when
determining whether a product is unreasonably dangerous, including:
 the usefulness and desirability of the product,
 the cost involved for added safety,
 the likelihood and potential seriousness of injury, and the obviousness of danger.

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  The inquiry asks whether the increased costs (lost dollars, lost utility, and lost safety) of
altering the design – in the particular manner the P claims was reasonably necessary to
the product’s safety – would have been worth the resulting safety benefits.
 The third restatement requires P to show that there is a reasonably alternative design and that
this design must bear a favorable safety/cos/utility ratio.
 FDA approval – can be used to show that the FDA has already engaged in some sort of
risk/utility calculus prior to granting approval.
 Warning Defect: A product that has significant social utility, and which carries with it certain
risks, can minimize, if not eliminate, those unreasonable risk by providing either instruction on
use or warnings to the consumer. In this sense, the manufacturer transfers to the consumer the
risk/utility information and she then decides for him or herself whether to use the product.
 Learned Intermediary: The default rule that the manufacturer must communicate these
warnings to the consumer is excepted where the product is delivered to the consumer through
a learned intermediary such as a doctor prescribing medication. The warning to the LI must
be adequate.
 Consider any FDA labeling requirement.
 Economic Harm
 Where a D breached a duty not to cause emotional or physical harm (including harm to property), a P
may recover economic damages caused thereby. But what if the P’s harm is solely economic? Do we
have a duty of reasonable care not to cause economic injury to another?

 The majority approach is known as the “economic loss rule.” The doctrine, often framed as a “no duty”
rule, states that, as general default matter with some exceptions, tort law does not allow recovery for
pure economic loss.
 1. The rule does not mean that all losses that are economic are not recoverable. Lost wages and
medical expenses are purely economic losses; damage to property usually is only economic. Yet all
these are recoverable when the P can establish an initial personal injury or some type of physical
damage to property.
 2. The rule does not mean that tort law alltogether exempts wrongful conduct that causes only
economic loss. Most jurisdictions, for instance, recognize the tort of professional negligence for
attorney and accountant misconduct, as well as claims for tortious interference with contract,
misrepresentation, etc. These are usually claims for purely economic losses, yet tort avenues exist
for tehm in most jurisdictions. Once can see that claims for purely economic lsos arise in 2 general
categories:
 Stranger contexts: when P and D are not in contractual private and not even indirectly connected
to the same market transaction.
 Non-stranger contexts: P and D are in a contractual relationship or at least are indirectly
connected through a market transaction.
 Most jurisdictions apply the economic loss rule to bar recovery in tort if the product dfect
causes only economic harms or only damage to the product itself.
 Probably the most dominant approach is the following: a P can bring a claim for a tort, even
if the recovery sought is purely economic and even if the claim has a contractual nexus – if
the P can establish the elements of an “independent” tort. That is, P cannot simply present a
theory that the D breached a contract negligently. Rather, the P must show some other,
independent tort. This might be fraud, negligent misrepresentation, breach of fiduciary duty.
 Restatement (3rd) of Torts: Liability for Economic Harm

 Aikens v. Debow
 Facts: Owner of Econo-Lodge suffered economic damages when a truck negligently plowed through
a bridge and blocked access to the hotel.
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  May a claimant who has sustained purely economic loss as a result of an interruption in commerce
cause by negligent injury to the property of a third person recover damages absent either privity of
contract or some other special relationship with the alleged tortfeasor? No.
 Conclusion: No an individual who sustains purely economic loss from an interruption in commerce
cause by another’s negligence may not recover damages in the absence of physical harm to that
individual’s person or property, a contractual relationship with the alleged tortfeasor, or some other
special relationship between the alleged tortfeasor and the individual who sustains purely economic
damages sufficient to compel the conclusion that the tortfeasor had a duty to the particular P and that
the injury complained was clearly foreseeable to the tortfeasor. The existence of a special
relationship will be determined largely by the extent to which the particular P is affected differently
from society in general. Where failure to exercise due care only creates a risk of economic loss, an
intimate nexus between the parties is generally required. The requirement of an intimate nexus is
satisfied by contractual privity.
 Misrepresentation: Intentional and Negligent
 Personal injury versus purely economic loss: Misrepresentations can lead either to personal injury or
to purely economic loss. Liabiliyt for misrepresenatiion exists for both contexts. With repsect to
personal injury contexts, if a D intentionaly or negligently gives false information, and if aperson
suffers phsycial harm as a result of reasonably relying on this information, then the D is liable for
full tort damages. Courts also developed a theory of liabliyt ofr personal injury based on “innocent”
misrepresentation; that is, false statement of fact that were not made eiher fraudulently or as a result
of lack of due care.
 Misrepresentstion: stands as an exception to the general economic loss rule
 The D’s state of mind: the differences in the D”s state of mind is reflected in the 3 theories of
liability: fraud, negligent misrepresentation, and innocent misrepresentation.
 Fraudulent Mirepresentation: deceit or intentional misrepresentation.
 Elements of Fraud: there are severl formulations of the elements of fraud depending on the
particularity with which each aspect of the tort is defined. In Missouri:
 A false, material representation
 The speaker’s knowledge of its falsity or his ignorance of its truth
 The speaker’s intent that it should be acted upon by the herarin in the manner reasonably
contemplated
 The hearer’s ignorance of the falsity of the statement
 The hearer’s reliance on its truth
 The hearer’s right to rely thereon
 The hearer’s consequent and proximately caused injury
 Falsity, Fraud, Purpose, and Intent
 The second element in both of these definitions requires proof of a particular state of mind with
regard to the statement’s truth or falsity. The third element requires proof that the D had the
purpose to induce reliance; some courts require either “purpose or intent” to induce reliance.
Notice that the P does not need to prove that the D intended or had a purpose to cause harm to
the P.
 Remedies: because fraudulent misrepresentation is a tort, tort’s general damage principle is usually
thought to apply: restoring the P, to the degree money can do so, to the position P occupied before
the wrongful act. Applying this general principle to misrepresentation scenarios has raised a number
of interesting damages issues.
 Benefit of the bargain vs. out-of-pocket damages:

 Justifiable Reliance: Most courts require that the P have relied in fact on the representation, and that
the reliance be justifiable. According to the restatement justifiable reliance requires that the matter
misrepresented be a “material” one; materialy is definded as follows:
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  The matter is material if:
 A reasonable man would attach importance to its existence or nonexistence in determining
his choice of action in the transaction in question, or
 The maker of the representation knows or has reason to know that its recipient regards or is
likely to regard the matter as important in determining his choice of action.
 The option set out in (a) employs the objective “reasonable man” standard, but option (b)
offers a way to bypass the objective stnadrad.

 Opinion: the question of how far general “puffing” or “dealers talk” can be the basis of an action for
deceit. The Restatement focuses non on whether an opinion can constitute a misrepresentation, but
on the circumstance when “justifiable reliance” on an opinion can be established. Althought those 2
approaches appear to concentrate on different “elements” of the cause f action, the approaches are
fundamentally the same because each allows the recipient to recover if certain circumstnaces are
present. These circumstances include: (1) the maker purports to have special knowledge that the
recipient does not have (2) the maker is in a fiduciary relation with the recipient; or (3) the maker
has some special reason to expect that the recipient will rely on the opinion.

 Statements of Law:

 Nondisclosure and Concealment: Suppose the D has not made a representation, but instead has
remained silent about or has concealed some material fact. Outside the real estate context, there is no
general duty to disclose, unless special circumstances are present. These can include the presence of
a fiduciary relationship or some other legal duty.

 Third party recipients: A third party also might act in reliance on the misrepresentation, even though
the D did not make the representation directly to him. Most courts such a third party to establish
fraudulent misrepresentation, so long as the maker “intends or has reason to expect” that the
substance of the misrepresentation will be communicated to the third party and will influence the
conduct of the third party.

 Breach of contract versus fraudulent misrepresentation: The misrepresentation claim does not
require a contractual relationhip, and breaches of contract can occur without misrepresentation.

 Negligent Misrepresentation
 The elements:
 Misrepresentation
 Justifiable reliance
 P must have suffered ham as a result of the reliance
 Negligent misrepresentation, unlike fraudulent misrepresentation, requires only that the P show
the D failed to exercise reasonable care with regard to whether or not the representation was true.

A finding of liability requires the injured party to prove (1) inaccurate

information, (2) negligently supplied, (3) in the course of an accountant’s
professional endeavors, (4) to a third person or limited group of third
persons for whose benefit and guidance the accountant actually intends
or knows will receive the information, (5) for a transaction (or for a
substantially similar transaction) that the accountant actually intends to
 Rule: influence or knows that the recipient so

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 intends, (6) with the result that the third party justifiably relies on such

misinformation to his detriment

At the time of issuance, Defendant did not know, not did they intend
for, a 3rd party to rely on that information. Evidence of this is found in the
report itself which stated that it should not be relied on anybody but
Brief Analysis: Keystone.

Topic Area: Misrepesentation

Keystone Bank was under investigation by the OCC for their banking
activity. An independent auditor (Defendant) took a llok at their finances,
and gave them a positive report. Keystone approached Plaintiff with an
offer for him to take over as President of Keystone Bank, Plaintiff took a
look at Defendant’s audit report. Allegedly, relying on the report,
Plaintiff took the position. It turned out that Defendant’s report was
flawed, and Plaintiff brought suit for misrepresentation. An important
note: the report stated in bold letters that the report should not be relied
Facts: on by 3rd parties (i.e., Plaintiff)

P Argument:

D Argument:

Approach 1: negligence actions were only permitted by parties in privity

of contract or in a situation so close as to approach that of privity
Approach 2: parties in privity of contract or in a relationship sufficiently
approaching privity only permitted negligence actions.
Approach 3: a person or a limited class of persons who the auditor can
foresee as parties who will (and do) rely upon financial statements are
allowed to recover.
Approach 4:: reasonably foreseeable approach. All parties who are
reasonably foreseeable recipients of financial statements for business
purposes to recover as long as they rely on the statements for those
Rule: business purposes. Court adopts this test.

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 Restatement (Second) of Torts § 552 provides in relevant part: (1) One
who, in the course of his business, profession or employment, or in any
other transaction in which he has a pecuniary interest, supplies false
information for the guidance of others in their business transactions, is
subject to liability for pecuniary loss caused to them by their justifiable
reliance upon the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information.

[T]he liability stated in Subsection (1) is limited to loss suffered (a) by

the person or one of a limited group of persons for whose benefit and
guidance he intends to supply the information or knows that the recipient
intends to supply it; and

(b) through reliance upon it in a transaction that he intends the

information to influence or knows that the recipient so intends or in a
substantially similar transaction.

A finding of liability requires the injured party to prove (1) inaccurate

information, (2) negligently supplied, (3) in the course of an accountant’s
professional endeavors, (4) to a third person or limited group of third
persons for whose benefit and guidance the accountant actually intends
or knows will receive the information, (5) for a transaction (or for a
substantially similar transaction) that the accountant actually intends to
influence or knows that the recipient so
intends, (6) with the result that the third party justifiably relies on such

misinformation to his detriment. The third party has the burden of

proving each of these elements. Moreover, the accountant’s ‘‘actual
knowledge should be ascertained at the time the audit report or financial
statement is issued. At the time of issuance, Defendant did not know, not
did they intend for, a 3rd party to rely on that information. Evidence of
this is found in the report itself which stated that it should not be relied on
Analysis: anybody but Keystone.


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