Torts Checklist:

Table of Contents:

• Intentional Torts

o Battery
o Trespass
o Conversion
o False Imprisonment
o Assault
o Outrage/IIED
o Privileges (self/property, private necessity)

• Unintentional Torts

o 1) Duty of Care (background: no duty for nonfeasance)

 Good Samaritan
 Occupation of land
 Control 3rd Persons

o 2) Breach of Duty
 Negligence
• Reasonable Person Measures (LH, custom)
• Design Defects
• Failure to Warn
• Res Ipsa Loquitur
 Strict Liability
• Trespassing Animals
• Non-Natural Uses of Land/Escaping Things
• Abnormally Dangerous Activities
• Respondeat Superior
• Manufacturing Defects
• Defective Food

o 3) Causation (need both)

 In Fact (but for)
 Proximate
 Alternative Liability

o 4) Defenses
 Contributory Negligence
 Pure Comparative Negligence
 Modified Comparative Negligence
 Express Assumption of Risk
 Primary Assumption of Risk
INTENTIONAL TORTS CHECKLIST

• BATTERY. Required elements:

o 1) Action (voluntary)
 Insane action is not involuntary (Polmatier)
 Instinctual action/fight of flight is involuntary (Laidlaw)
o 2) Intent (actual or transferred or constructive)
 Accidents do not constitute intent (Knight)
 Substantial certainty that action would lead to harmful or offensive contact is
constructive intent (Garrett)
 Aiding and abetting can constitute transferred intent (Keel)
• Note: TI can arise w/o A&A
o 3) Harmful or Offensive Contact (reasonableness test versus subjective standard)
 Majority rule: Objective, reasonable person standard defines what is offensive,
given a context; egg shell skull (take plaintiff as you find her) (Vosburg)
 Minority rule: Subjective standard, based on plantiff's individual conception of
harmful or offensive contact (White)
o 4) Damages result

o Defenses: Consent
 Consent to surgery only valid for specific procedure (Mohr) and for specific
person (Grabowski), unless it is an emergency
 Consent is not vitiated when P is touched exactly the way he consented
(Brzoska/HIV)
 Fraud can vitiate consent, but only when it is at the core of that consent.
(Brzoska--no vs Neal/adultery --yes)

• TRESPASS. Required elements:

o 1) Volitional act by D
o 2) Physical invasion of land in possession of P
 Can be effected by a thing or agent of D
• (Pegg, p. 33, L for hunting dogs; analogous to Garratt)
 Can result from failure to leave land (if consent revoked)
 Can result from failure to remove from the land a thing which D is under a duty
to remove (irrespective of whether harm is caused)
• Heightened standard for personal property (Van Alstyne – L for failure
to remove pellets)
o 3) Intent by D
 Majority rule is strict intent: only if D intends to be on P’s land, whether D’s
presence is based on mistake, ignorance, or otherwise, he is liable for trespass
• Intent must be reasonably connected to actual intrusion: Malouf, p. 34 –
NL for golf course.
  Exception: substantial certainty that act would lead an agent or thing to trespass
(Pegg, analogous to Garrett – cf. Malouf, where probability much lower).
• See also Van Alstyne - Roin thinks this is stretching intent too far.
o 4) Causal relationship

o Defenses:
 Consent to entry (conditional, can be revoked)
 Unintentional entry (a mistaken, but intentional, entry is no defense)

• CONVERSION. Required elements (R222):

o 1) Intentional exercise of dominion or control over a chattel

 Conversion requires no proof that offending party appropriated property for his
own use - enough to show that D exercised dominion in exclusion or defiance of
P's right (Russell-Vaughn Ford)
 Conversion claim requires no effort on the part of P to exhaust all possible means
of gaining possession of property (Russell-Vaughn Ford)
o 2) Exercise so seriously interferes with right of another to control it that the actor
may be justly required to pay the other the full value of the chattel.
 Relevant factors to consider (see p. 40) in determining seriousness of interference
and justice of requiring actor to pay full value: a) extent and duration of
dominion; b) actor's intent; c) actor's good faith; d) extent and duration of
interference; e) harm to chattel; f) inconvenience/expense.

o Defenses: Mistake or unawareness can be defenses to conversion, but not necessarily so

when other factors are sufficiently weighted against D. (Wiseman)

• FALSE IMPRISONMENT. Required elements:

o 1) Volitional act intending to confine the other/ 3rd person within boundaries fixed by
the actor
 If intention to confine is not present, actor is not liable for a merely transitory or
otherwise harmless confinement.
• BUT Reckless or negligent act causing false imprisonment can also
result in liability when serious harm results.
 D cannot be liable for false imprisonment when only act was providing
information to police, who consequently confined P (Baggett stek up)
o 2) Act directly or indirectly results in such a confinement of the other/3rd person
 Confinement must be complete (if reasonable escape exists, other must know of
it for D to have defense)
 Restricting entry is not confinement (as opposed to restricting exit)
 Confinement may be by actual or apparent physical barriers (i.e. taking away
someone’s crutches)
o 3) The other/3rd person is conscious of the confinement or is harmed by it
 Need not be harmful if person is conscious of it
 D need not be conscious of it if harmed by it

o Defenses:
  Assent: even if retroactive, can vitiate false imprisonment claim. (Peterson, p. 56
- consent after 3 days of resistance)
• Assent must be volitional/free of duress (Eilers, p. 58 -harsher treatment)
 Citizens Arrest: depending on statute and circumstances - i.e. two innocents vs.
relative fault (Bright, p. 59, mistook for brother by bounty hunter)
• Shopkeepers generally have right to detain potential shoplifters

• ASSAULT. Required elements (RS21, p. 65)

o 1) Volitional act intending to cause

 Transferred intent can arise via agency - parents responsible for reasonably
foreseeable acts of children (Langford, analogous to Keel's aiding and abetting)
 Substantial certainty that such apprehension will arise can constitute assault
o 2) Harmful/ offensive conduct (or imminent apprehension thereof)
o 3) D is put in such apprehension
 Apprehension created must be one of imminent contact
• Brower, p. 66; Tuberville, p. 70)
 Apprehension must be reasonable (but judged by subjective view of P)
• Does not matter if D could actually make the threatened contact, or if D
subjectively had no intent to put P in such apprehension – Newell
 Intent to harm must be known by other person
• Hypos: no assault if D points gun at P and D thinks it’s loaded but P
knows it’s not. BUT assault if D said he was outside P’s window with a
gun but really wasn’t.
 Doesn’t matter if ultimate harm is unforeseen: (Bennight, p. 67)
 With conditional threats are assault unless condition clearly not met: no
reasonable apprehension of imminent contact arises when condition clearly not
met (Tuberville).
• Otherwise, conditional threats can be assault.

• OUTRAGE / IIED. Required elements:

o 1) Extreme and outrageous conduct

o 2) Intentionally or recklessly
o 3) Causes severe emotional distress to another
o 4) Is subject to liability for such emotional distress and any resultant bodily harm
o Factors that give shape to above elements:
 Nature of relationship between plaintiff and defendant – vulnerability?
• Trust-based relationships lower bar for IIED: Cf. Greer, p. 74 (L for
attending physician) with Roberts, p. 73 (NL for past physician)
• Naturally adversarial relationships heightens bar for IIED – Pemberton,
p. 76 (labor union – adversarial employer)
 Characteristics of plaintiff – vulnerability?
• Cf. Greer (patient going into surgery) with Pemberton, p. 76 (NL where
labor leader insulted – thick skin expected)
• Actor's knowledge that other is particularly susceptible to emotional
distress can lower bar for IIED – Muratore, p. 75
  Circumstances surrounding conduct – higher respect expected?
• Situations where paying for service lowers bar for IIED – Muratore (also
captive audience concern)
 Truthfulness and relevance of conduct
• Cf. Pemberton (NL - comments were truthful, could be relevant) with
Muratore (L – untruthful, irrelevant)
 Whether D is a public figure
• Public figures/officials cannot recover for IIED unless they can show a
false statement was made with actual malice. (Hustler).
• Limited purpose public figures (i.e. teacher at school) also cannot
recover within particular context (Walko - NL, Van Duyn - L)
• Relevant factor: extent to which person can rebut the claim
 Whether such conduct is directed at a third person:
• Actor is also subject to liability if he intentionally or recklessly causes
severe emotional distress:
o To a member of person’s immediate family (if present), whether
or not the distress results in bodily harm
o To any person present, if distress results in bodily harm
o General Notes
 Liability only where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.
 Liability does not arise from mere insults, indignities, threats, annoyances, petty
expressions, or other trivialities - public expected/required to be hardened to
certain amount of inconsiderate/unkind behavior – Roberts
 IIED is generally limited because courts are wary about casting a pall on free
speech rights and do not want to convey impression that judges are crafting
social policy/norms

• PRIVILEGES (FOR INTENTIONAL TORTS)

o Self and Property

 Proportionality of act and defense
• Value of human life exceeds rights in property
o Can't use extreme force against non-violent trespassers – Katko,
p. 85 (L for spring gun owner)
o BUT permissible if intrusion threatens death or bodily harm –
Wright, p. 89 (NL - use of firearm to prevent robbery is OK if
robbery is going on AND is violent in nature)
o Note: statutes have chipped away at this common law rule,
allowing for violent defense in the home regardless of threat
• Cost/benefit analysis if choice is property vs. property
o Hull, p. 91 (NL for neighbor who shot dog that ate his eggs)
 Emphasizes that D must try lesser means – only choice
is to destroy one or the other
o Kershaw, p. (NL for neighbor who shot dog attacking his goat)
  Single owner: if property attacking yours is less
valuable, kill it with NL; if it is more valuable, let it
destroy yours but then recover the value of yours
• See also Bamford, p. 94 for this principle
 Purpose of defensive measure (punitive or deterrent)
• Cf. Katko (silent, lethal spring gun) with Woodbridge, p. 90 (NL for
injury caused by guard dogs – which bark and are not as lethal)
 Risk of indiscriminate use – Katko

o Private Necessity
 Preservation of human life is a core private necessity defense
• Ploof – (L where servant unmoors boat from dock in storm, where boat’s
passengers had sought refuge)
o Note: D would not have been liable for merely failing to make
land accessible to trespassers (i.e. if he had a locked gate, and
watched P drown from his balcony). Affirmative act was key.
 Generally must be imminent and unpredictable necessity (not chronic) to prevail
on defense to trespass:
• Cf. Texas Midland (L for rail station owners who excluded woman) and
London Borough (NL for apartment owner who evicted homeless)
 Question of “as between two innocents” – often fact-specific
• Vincent v. Lake Erie, p. 100 (NL for trespass b/c privileged – boat owner
didn’t remove boat after K period b/c of storm – but L for damage to
dock even though justified under single owner calculation)
• Rossi v. DelDuca, p. 99 (L for landowner whose dogs bit trespassing
girls, who were privileged b/c of preservation of life grounds)
o Cf. Woodbridge – much stronger privilege claim

UNINTENTIONAL TORTS CHECKLIST

• DUTY OF CARE

o Duty arises when affirmative conduct creates risk of harm to others (RS3 Torts #7, p.
218)
 Introducing something into stream of commerce constitutes affirmative act

o Only exceptional duties for nonfeasance:

 No duty to rescue – background rule (RS 314)

o Cf. Yania v. Bigan, p. 219 (NL where P drowned in D’s trench upon D’s
inducement – no obligation to warn of obvious danger) with Globe Steel
v. New York (L for railroad which affirmatively obstructed fire truck)

 Duty for good samaritan / taking charge of helpless IF act initiated AND:
o Failure to exercise care increases risk of harm; OR
• Cf. U.S. v. Lawler, p. 231 (L for Coast Guard which dropped
woman from helicopter); with Frank v. U.S. (NL for Coast Guard
 when man fell off boat in midst of rescue attempt – risk already
there)
o Harm is suffered due to reliance on that effort (RS 323).
• Ocotillo v. Superior Ct., p. 233 (L for “rescuers” who promise
golf course to drive drunk golfer home, but later give him the
keys)
• O’Neill v. Montefiore (L for ER doctor who told patient to “come
back at 8” for treatment – affirmative act created reliance)
o But see Hurley v. Eddingfield, p. 230 (NL for family
doctor who refused to treat patient in emergency)

 Duty for certain special relationships (RS 315) – good position to prevent harm
o Right to protection (i.e. common carriers, ships)
• Must be within scope of responsibility: Cf. Brosnahan v.
Western Air, p. 237 (L for falling bag in airplane) with Boyette v.
TransWorld, p. 238 (NL for airline when accident occurred
within airport)
o Duty to control 3rd person
• Must be a specific, serious threat which outweighs social
importance of nonaction: Cf. Tarasoff v. Cal, p. 246 (L for
psychotherapist who failed to disclose murderous intent of
patient) with Thompson v. Alameda, p. 246 (NL for county which
released juvenile offender)
• Applies to landlord-tenant relationship – Kline v. 1500 Mass Ave,
p. 247 (L for landlord who knew of crime trend and could have
prevented with doorman – but consider powerful economic
counterarguments)
• Generally no duty for police – strong policy reasons for not
forcing them to prioritize actions

o Duty owed because of occupation of land

 Trespasser (RS 333, 334, 337, p. 258)

o No duty to inspect for trespassers
• Haskins v. Grybko, p. 256 (NL for accidental shooting on D’s
property)
o Privilege to act unreasonably on own premises limited to situations
where trespasser’s presence is unknown
• Herrick v. Wixom, p. 256 (L where firecracker injured circus
trespasser)
o Attractive nuisance can give rise to liability
• Keffe v. Milwaukee Rail, p. 259 (L where rail turntable injured
children)

 Licensee (RS 341, 342, p. 263)

o No duty to inspect for hidden dangers for licensees (guest takes place as
is) unless host’s negligent act increases risk that licensee will encounter it
• Cf. Davies v. McDowell, p. 261 (NL in CO poisoning) with
 Lordi v. Spiotta (L where P asked D to light a defective gas
heater)
o Houseguests are generally licensees; does not matter if guest was
“invited.”

 Invitee (RS 332, 341, 343)

o Duty to carry on activities with reasonable care for safety but only if a)
should expect that invitee will not discover/realize danger OR b) fail to
protect
o To qualify as invitee on business/public visitor grounds, host must either
be afforded a material benefit or have thrown open their premises to the
public in a way that would imply warranty of safety.
• Carter v. Kinney, p.261 (Bible study visitor a licensee)

 No distinction by property classification: flexible reasonableness standard

o Rowland v. Christian, p. 267 (minority rule – see decision for factors)

• BREACH OF DUTY

o Negligence

 Reasonable Person Measures

o Basic Scope
• Did you fail to take precautions that a reasonable person would
have?
• Restatement 283, p. 122: Unless a child, standard is that of
“reasonable man under like circumstances”
• Mental defects are no defense – Vaughan, p. 125
o Ex.: duty of care to obviously mentally impaired person
– Lynch (L for thresher injury), p. 129
• Typical person in community, given time and place, is RP.
o Weirs (NL for town in covered bridge), p. 129
• Physical defects – RP judged relative to those w/ similar defects
o Kerr (L for deaf man on tracks)
o Davis (NL for blind man on street), p. 134
• Child limitations
o Dunn (NL for six year old swinging stick), p. 139

o Learned Hand measure – Carroll Towing, p. 141: B < PL

• Courts and juries do not formally use this; it is simply an
approximation for a reasonable person’s cost-benefit analysis.
• Calculate B (expected harm) with and without preventive
measure – if difference greater than cost of measure, then
negligent not to use it
o Need to focus on a particular harm
• No viable precautions – Adams, p. 144 (NL for trolley co whose
wire electrocuted boy – Cardozo appeals to “social interest”)
 • Extremely unforeseeable – Bolton, p. 145 (NL for cricket ball)

o Custom measure
• Might be evidence of reasonable person’s calculation, but not
absolute – TJ Hooper, p. 159 (L for tug company which didn’t
carry working radio – clearly negligent under Hand F.)
o But see Ellis, p. 160 (NL for railway which didn’t issue
mask; no such companies issued masks, while at least
some tugs used radios in TJ)
• Importance of custom is context-specific:
o Inherently dangerous usage makes custom less important
• MacDougall, p. 161 (L for power company)
o Contractual relationship makes custom more important
• Rodi Yachts, p. 162 (implication that custom is
less important w/r/t 3rd parties)
o Medical malpractice makes custom determinative (juries
cannot intuit the reasonable person standard):
• National standard with some allowances –
Brune, p. 165
• Modified locality rule – Gambill, p. 166
• Strict locality rule – Small (antiquated)
• Restricted to medical “functions” – Wills
Memorial, p. 167 (NL for hospital that didn’t
protect patient)

 Product liability (other than manufacturing defects – see strict liability)

o Basic requirements:
• Sale/distribution of product must be within D’s primary business
o See Magrine, Keen, Peterson, et al
• Product must have alleged design defect (or lacked proper
warning) when it left D’s possession

o Defense: Product misuse, reasonable design/warning

o Design defects:
• Dominant test: Risk/utility measure
o Do the benefits of design outweigh the risks?
• Jury often must be able to show that a
reasonable alternative design would have
lowered risk to argue no. McCarthy, p. 490 (NL
for talon bullet mfr)
o Even when a particular feature is safest in view of all
potential risks, liability can be found if it is inferior in a
particular context – Dawson v. Chrysler, p. 482 (L for
crumple zone)
• Cf. Dreisenstok v. VW, p. 490 (NL, safety risk is
 obvious and essential to particular purpose of
design)
o Must consider whether product is defective as a whole or
whether certain elements are defective. Mitigating Q’s:
• What if particularly dangerous feature is also
providing benefits? Bunn-o-Matic, Liebeck (NL/
L for hot coffee cases)
• What if entire product is “defective” because of
its intended use?
• Minority test: Consumer expectation measure
o If more dangerous than most consumers would expect, it
is defective – akin to implied warranty. Kinda circular.
o Green v. S&N, p. 487 (NL for latex glove allergy)
• Exception: Learned intermediary
o Most jurisdictions only require that drug companies
apprise physician of risks, except where direct marketing
happens
o Cf. Brooks, p. 506 (NL for drug company) with Wyeth,,
p. 508 (L for drug co which marketed directly to
consumers)

o Failure to Warn – more consistent with Hand formula. Requirements:

• Must satisfy same cause of action as design defects, except
warning is the defect
• Must identify warning that D didn’t adequately give
o Could warning have been delivered at all? --
Bunnomatic
• Lack of adequate warning rendered the product unreasonably
dangerous to average person
o Background rule: No requirement to warn when product
only dangerous if used in excess or if danger commonly
known
o “Commonly known” depends on characteristics of users
– Liriano, p. 503 (L for lack of warning on meat slicer)
o For addictive products, danger must have been
commonly known before P began use – Grinnell, p. 494
o Allergens must pose general danger (to which many
people are susceptible) and be contained in non-obvious
setting – Brown v. McD, p. 501 (L for seafood additive)
• Lack of adequate warning caused this particular P to suffer harm
o Rebuttable presumption that P would have heeded
adequate warning – cf. Graves, p. 499 (found P would
not have heeded baking soda warning b/c of heavy
smoking) with Grinnell

 Res ipsa loquitur – accident speaks for itself (shift burden of proof in
negligence)
o Three basic requirements: (p. 200)
 • (1) Accident
• (2) Defendant had exclusive control over instrumentality causes
(unless policy reason, such as “conspiracy of silence”, otherwise
dictates)
o Larson v. St. Francis Hotel, p. 195 (hotel cannot be held
to RIL for chair falling out of window – joint control
with guest)
o Wolf v. American Tract, p. 213 (no RIL b/c no
conspiracy of silence between contractors and building
owners)
o But see Ybarra v. Spangard, p. 208 (hold medical team
liable for malpractice under RIL b/c of conspiracy of
silence)
• (3) In ordinary course of events, with D using ordinary care,
accident would not have occurred.
o Accident itself becomes evidence of negligence (b/c)
such accidents rarely occur when due care is exercised.
• Within cases of accidents, what is the probability
that accident was caused by negligence?
o Conditional, not absolute, probability is
what matters – Wilson v. Stilwill, p. 198
• Where more safety features, greater potential for
RIL, paradoxically – “expected rate of
compliance is high relative to normal rate of
unavoidable accident”
o Cf. Haasman v. Pacific Alaska, p. 204
(no RIL for airplane) with Walston v.
Lambertsen (RIL for boat)
o Reverse burden of proof, create rebuttable presumption
that D was negligent
• Byrne v. Boadle, p. 192 (flour bags falling is
presumptively negligent)
• But see Combustion Eng. v. Hunsberger, p. 193
(minor things falling at construction site not
presumptively negligent)
• But see Brauner v. Peterson, p. 197 (cows will
escape even with due care)
o Evidentiary concerns (risk of “pocket of immunity”)
heighten need for RIL
• Judson v. Giant Powder Co., p. 201 (dynamite
factory explosion)

o Strict Liability:

 Main reasons for choosing SL over background negligence rule:

[NOTE: If negligence system working properly, level of due care of both
parties will be same as under strict liability.]
o 1) High error rate under negligence system
 • Evidentiary barriers (absence or interpretation difficulties)
• P unable to recover in all situations when he should
o 2) Inadequate activity level settings under negligence
• Even if proper level of due care is taken, activity may be more
frequent than is socially optimal (problem with repeat games)
o 3) D in much better position to mitigate risks – informational factor
• Need to spur incentives to research new ways to lower risk
o 4) Uneven loss distribution under negligence
• Costs of activity not being fully internalized by beneficiaries
• D is able to exercise quasi-insurance function under SL
o 5) Administrative costs per suit too high under negligence
• Assumes that increased # of suits under SL will not outbalance –
specificity of SL criteria must be high to keep per suit cost low

 Harm caused by trespassing animals

o Marshall v. Ranne, p. 605 – undomesticated hog case
• BUT if animal domesticated, may have “one free bite”

 Non-natural uses of land

o SL: Rylands v. Fletcher / Lubin v. Iowa City, p. 414
• Cf. Turner v. Big Lake Oil, p. 413 (no SL in Texas oil case)

 Abnormally dangerous activities.

o Factors to be considered (no single one determinative, see p. 418):
• High risk of some harm to person, land, chattels of others
o Activity not limited to D’s land (evidentiary concern)
• Likelihood that harm will be great
• Inability to eliminate risk by reasonable care
o Consider whether precautions that can be taken are
unilateral
o Indiana Harbor v. American Cyanamid, p. 423 (No SL,
neighbors chose to live next to rail, most rail risk
eliminated with reasonable care) vs. Siegler v. Kuhlman,
p. 426 (SL, dangers of highway make it harder to
eliminate risk with RC)
• Extent to which activity is not matter of common usage
o Is there reciprocal risk, custom? (e.g. no SL for
automobile)
• Inappropriateness of activity to place where conducted
o Force actor to internalize costs and conduct activity level
analysis - shift location/intensity of activity accordingly
o Indiana Harbor v. American Cyanamid, p. 423 (No SL,
mfr cannot alter location/intensity of rail traffic) vs.
Siegler v. Kuhlman, p. 426 (SL b/c trucking company
can alter means/frequency of transporting chemicals)
• Extent to which activity’s value is outweighed by dangerous
attributes
 o Rationale for respondeat superior: The more dangerous an activity, the
more likely it will destroy evidence that will allow P to recover in
negligence; the more abnormal the activity, the more likely it is that D
has predominant control over activity level.
• Generally: the activity has social value but poses inevitable
harms – SL represents a fairer way of allocating cost of those
harms given shortcomings of N in doing so
• Central variables are magnitude and circumstances
• Can contract out of abnormally dangerous activities

 Respondeat superior - Two requirements:

o Was tortfeasor an employee or independent contractor?
• Core of test is control: is the principal directing the job
(employee) or simply stating a desired outcome for agent
(contractor) to achieve?
o See Miami Herald v. Kendall, p. 442
o RS 220, p. 444 for definition
o Was employee acting within scope of employment?
• Test: conduct is 1) of kind he is employed to perform; 2) it
occurs substantially within the authorized time and space limits;
3) it is actuated, at least in part, by a purpose to serve the master,
and 4) use of force (if any) is not unexpectable by the master
(Roth). RS 265, p. 442
o Background rule is that acts outside of work hours don’t
give rise to RS – Miller v. Reiman, p. 437 (crash over
lunch hour)
• But see Konradi, p. 438 (RS in mail carrier crash
b/c employer exercised discretion over
commute)
o Criminal acts generally do not allow for respondeat
superior: Roth v. First National, p. 440
• But cf. Forster v. Red Top, p. 441 (no RS for bus
driver who pulled over and slapped slow driver)
with Reina v. Metro Dade (RS for bus driver
who chased down and beat P who offended
him):
• In Forster, time/space closer to job, also belief in
acting in employer’s interest (versus personal
slight)
o Where employee’s conduct foreseeably causes certain
damage, RS can apply, even if not in service of master
• Ira Bushey v. U.S. (RS for drunken sailors…
distributive, LCA motives)
o Rationale: employee creates risks for master’s benefit; provides deep
pocket able to pay damages; employer in position to spread cost of
invariable accidents
• Can’t contract out of respondeat superior
o Distinguish rationale by Friendly (wants to hold business liable for harms
normally attendant to business activity – fairness of internalizing foreseeable
 costs) and by Posner (who incorporates deterrence logic in applying Friendly –
this rule will induce actors to exercise optimal care and activity.

 Manufacturing defects - Three requirements:

o Product must be defective (deviated from intended design)
o Sale/distribution of product must be within D’s primary business
• Service providers generally excluded
o Cf. Magrine, p. 473 (NL for doctor) and Newmark, p.
474 (L for hairdresser – service incidental to product,
unlike doctor)
• Second-hand dealers generally excluded (breaks the chain of
causation)
o Peterson (NL for used car dealership)
o Product must have been defective when it left D
• If defect clearly introduced before reaching P, all upstream
parties are liable unless they can show when defect introduced.
o Welge v. Planters, p. 466
• If D induced P to take action which allegedly caused defect, no
product misuse defense is available.
o Welge, supra
• Cannot contract out of SL via warranty:
o Greenman v. Yuba Power, p. 459 (L for company selling
defective tool despite warranty – expands on Traynor
concurrence in Escola, which applied res ipsa principles)

 Defective food
o SL only where harm caused by foreign (not natural) additions
• Mexicali Rose, p. 477 (no SL where P swallowed bone in
enchilada)

• CAUSATION – need both “in fact” and “proximate” (and balance story with claim for wrongful
conduct)

o Cause in fact (but for / ex post): harm probably would not have occurred but for the
wrongful act
 Dominant test: Did background risk double as a result of D’s action?
o NY Central v. Grimstad, p. 308 (NL for railroad which failed to equip
barge properly; not enough evidence to say that lack of buoy probably
caused death)
o Cannot recover if background risk > 50% -- potential pocket of immunity
 Minority test: Loss of chance: What percentage of final risk was caused by D’s
action?
o Herskovitz v. Group Health, p. 317 (reversed SJ where background risk
was already greater than 50%, but D’s action reduced survival risk to
some extent)
o Allows for commensurate recovery in any case where D increased risk
o Depends on having good numbers and relative certainty in causation
• More likely to be applicable in medical cases than in Grimstad
 • But see Dumas v. Cooney, p. 326 (finding that Grimstad rule
produces less statistical errors than loss of chance, even in
medical case)

o Proximate causation (ex ante)

 Directness test (generally antiquated)
o As long as damage is caused sufficiently directly by negligent act,
foreseeability doesn’t matter – In re Polemis
o Polemis challenged by Wagon Mound, which reintroduced foreseeability
 Dominant test is whether force released by D’s act or omission, which ultimately
gave rise to the harm, was foreseeable (NOT whether the harm itself was
foreseeable).
o To determine causality, find the reason for determining original act as
negligent, then ask whether harm is within risk that should have been
mitigated by due care
o No exoneration where remote risk is of “same general type, from same
forces, and to same class of people” as common risk:
• Kinsman Transit, p. 356 (L where negligent mooring allowed
boat to cause flood). See also RS 29
o Irrelevant whether exact mechanism/ magnitude of harm is foreseeable
• Colonial Inn, p. 360 (reversed SJ where car backed into hotel,
causing gas leak and fire)
• United Novelty (L where gas soaked rat caused explosion)
o Definition of original scope of “due care” has great effect on liability:
• For instance, if P in United Novelty claimed it were negligent to
allow someone to clean with gasoline (rather than just to do so in
room with pilot light), he broadens possible routes of causation
but also broadens possible defenses D can make (i.e. industry
custom)
 Negligently-released force must have increased risk of ultimate harm
o Price, p. 363 (NL for railway where P missed stop and was burned in
hotel)
o Pridham, p. 363 (L for store that injured P, who was killed en route to
hospital)
o Berry, p. 363 (NL for town where branch fell on trolley)
 Chain of causation can be interrupted by third-party interveners UNLESS the
negligently-released force affected the risk that third party would intervene
o Cf. Watson, p. 370 (reversed DV for gas co, where leak was lit aflame by
third party but unclear whether that action was malevolent) with Brauer
(L for railway in collision with wagon, increasing risk of theft)
o Intervening third party acts do not defeat chain of causation if reflexive
responses to initial force, Anderson, p. 317 (L in firecracker case)
 See example squibs at p. 376

o Alternative liability (multiple tortfeasors; unclear who caused harm)

 Must be demonstrable negligence among all potential D’s (where it is unclear
who actually caused harm) and each act alone must have been sufficient to cause
harm
 o Summers v. Tice, p. 332 (L for both hunters in accident)
 When other potential tortfeasor(s) unknown, known D can be stuck with entire
liability
o Kingston v. Chicago, p. 334 (L for train co which sparked fire that
merged with a fire of man-made but unknown origin).
o If unknown tortfeasor were natural cause, much greater in impact, or
clearly made its impact earlier, then known D could have defense
 Allows for burden-shifting on causation question (cf. res ipsa for negligence)
o Must know that P deserves to recover; only question is who pays.
o Creates “joint and several” liability: $ to P, and Ds can apportion their
share

• DEFENSES

o Contributory negligence (secondary assumption of risk / old rule)

 No recovery if P had any fault – traditional rule of “all or nothing”
 Product misuse defense generally has this effect

o Pure comparative negligence

 P’s damages reduced in proportion to his negligence (New York rule)

o Modified comparative negligence

 D must be equally or more than equally culpable than P for recovery
o McIntyre v. Balentine, p. 577 (multi-factor test for comparative fault)
 Serious unlawful conduct by P (which leads to injury in question) will bar
recovery
o Manning v. Brown, p. 584 (NL in joyriding case)
 Pre-operative negligence does not allow physicians to escape liability for
malpractice
o Fritts v. McKinne, p. 579 (L for doctor who treated drunk driver)
 Rescuers can only be considered negligent if actions were rash or reckless
o Ouelette v. Carde, p. 579 (NL for garage fire – jury not allowed to see
evidence)
 Partial recovery may be allowed even P flagrantly negligent
o Alami v. Volkswagen, p. 586 (shared costs despite P’s drunken crash of
“defective” VW)
 Juries cannot be instructed to apportion fault based on evidence which was not a
proximate cause of harm – Van Vacter v. Hierholzer, p. 586

o Express assumption of risk:

 Did you contract out of D’s liability?
o Policy Q: Hand formula may not work perfectly, good incentive for
waiver
 Restatement 496B, p. 593: generally allows for contracting out of liability for
negligence if it satisfies three prong Tunkl test (see also Manning v. Brannon, p.
588 – NL for skydiving co)
o 1) It is not “contrary to public policy” – Tunkl TEST, P. 591 (L for
 hospital)
• A) Regulated? (i.e. duty of public service - hospital, public
carrier)
o But see Anderson v. Erie Ry, p. 590 (NL for common
carrier which sold cheaper ticket with waiver; market
worked well and actual risks did not vary); Shorter, p.
595 (NL for hospital which didn’t treat Jehovah’s
Witness)
• B) Open to public?
• C) Contract of adhesion (distinguish Tunkl from Anderson)
o 2) Both parties must understand and intend for K to apply to particular
conduct that caused harm – fair and clear terms
o 3) Not enforced where bargaining power is such that there is no free
choice
• Employer-employee relationships
 Waiver must explicitly release D from liability; strong presumption against
drafter in intent question
o Van Tuyn v. Zurich American, p. 581 (L for mechanical bull operator
despite blanket waiver)
 Policy concerns amplified where D has complete control over P
o Vodopest v. MacGregor, p. 595 (L for trekking company despite waiver)

o Primary assumption of risk:

 Did D knowingly assume harm by very act?
o D acted reasonably, thus is not negligent – per Hand formula), and P
suffered injury from a reasonable risk of the activity
o Can be interpreted as an exception to comparative negligence (bringing
ultimate result closer to contributory negligence)
 Participation in activity with obvious risks generally entails consent to those risks
– Murphy v. Steeplechase, p. 597 (NL for amusement park injury)
o But this does not extend to unexpected risks of such activity – Woodall v.
Wayne Steffner, p. 599 (L for production co which substituted unqualified
stunt driver)
o See also Hackbart v. Cincinnati Bengals, p. 604 (L for exceptionally
brutal hit)
Policy Frameworks:

o Should we enforce waivers where agents give up their right to sue for negligence?
 Why should we disallow waivers? (Look at test)
• Information barriers may undermine integrity of decisions.
• Even if we had information, we’d screw up the calculations (paternalistic
view)
• Free rider problem.
• Bargaining power disparities
• Unclear if people understand what they are contracting to.
 Why would people want to contract out of right to sue?
• Negligence system may be so expensive to administer (i.e. attorneys)
relative to its payouts (either in damages or in deterrence), that people
might be better off if they could contract out.
• Individuals may have adequate coverage, be less vulnerable, or value
their safety/interests less than the average person (on whose risk
thresholds the negligence system is based)
• Presumption that if someone agreed to a contract, they felt it was in their
interests.

 Principal policy rationales for RIL

• Where harms typically resulting from a given activity leave no evidence,
we would otherwise create a pocket of immunity for parties engaging in
such activity and decrease their incentive to take precautions.
• Potential for conspiracy of silence among D – part of a general concern
of inadequate evidence.
 RIL almost always applies when P has no knowledge/reason to know why
accident occurred, and D has greater reason to know (either in testifying as to
precautions that were/were not taken, or to the direct cause itself)

1. Should the law impose duties on strangers to rescue one another in some circumstances (p.
224-7)?

a. Ames – practical difficulty in creating good Samaritan legis would be in drawing the line

i. Suggestion: one who fails to interfere to save another from impending death or
great bodily harm, when he might do so w/ little or no inconvenience to himself,
and the death or great bodily harm follows as a consequence of his inaction, shall
be punished criminally and shall make compensation to the party injured or to his
widow and children in case of death

b. Epstein – difficult to set out in principled manner the limits of social interference w/
individual liberty; slippery slope problem

c. Landes and Posner: agree w/ Epstein

 i. “liab for failure to rescue is a form of conscription for social service which would
seem congenial to a state that already regards its citizens time as public rather
than private property

d. Bender – feminist approach

i. “why should our autonomy or freedom not to rescue weigh more heavily in law
than a stranger’s harms and the consequent harms to people with whom she is
interconnected?”

• Factors underlying SL for products liability

o (1) Moral
• Difficult here, because corrective justice view doesn’t like to cede point on
blameworthiness, which it would have to do in this case
o (2) LCA. Necessary assumptions
• Unilateral v. bilateral:
• One party can do nothing to prevent harm; other can do a lot of
things to prevent; we thus assume that by imposing SL on latter they
will figure out most effective way to prevent
• Assumption that negligence is imperfect: B < PL.
• Under negligence regime, injurers are taking less precautions than
they should b/c they are getting off in some cases (where P’s cannot
successfully prove negligence, even where negligence existed in
fact). In theory, where N applied perfectly, precautions/ deterrence
under SL and N should be the same
• Encompasses information costs/disparities
• Res ipsa will address this problem, but won’t apply in all cases
• Innovation?
o (3) Insurance/Risk Pooling
• Company may be able to act like an insurance company – dispersing costs
amongst customers. Compare with severe burden on individual in bearing
costs
o (4) Problems with privity
o (5) Activity level analysis
o (6) Litigation costs
• SL will help reduce burden of proof costs (no need for expert witnesses, etc)
• But it might increase costs by raising number of lawsuits