INTENTIONAL TORTS

1. BATTERY

Elements:
1. ACT that causes harmful or offensive contact (unauthorized/unpermitted)
2. INTENT desire or substantial certainty that harmful or offensive contact will occur.
3. CAUSATION - ∆’s act caused Π’s injuries; must show ∆ is at fault
4. DAMAGES – usually easily shown

Rule Name Facts

If ∆ has knowledge that a certain conduct Cohen v. Smith Π was in hospital to deliver
is offensive to a person and commits it baby; made it clear it was
anyway, then BATTERY against her religion for male
to see her naked; male nurse
saw and touched her naked
If a Reasonable Peep could predict the Reasonable
outcome of the action that caused the Π’s Person
injury, it can be derived there was intent Standard/Intent
No liability b/c no reasonable peep would Class hypo If a wife hugs hubbie and his
find intent to cause offensive act. vertebrae snap, paralyzing
him, is she liable for battery?
Battery must have some sort of Leichtman v. Acclaimed anti-smoker
particulate matter or physical WLW Jacor appears on radio show; host
connection with the injured party. Communication blows smoke in his face.
(Sneeze counts; breathing doesn’t) s
If ∆ has substantial certainty that Garratt v. 5 y.o. moves chair; Π
actions will inflict harm (∴ intent), then Dailey attempts to sit where chair
BATTERY was and falls; sustains
injuries
∆ who intends a battery is liable even if Davis v. White
the peep harmed is not the originally
intended victim of the ∆’s harmful or
offensive contact; there is intent under
doctrine of transferred intent.
∆ must be able to understand and Van Camp v. Π was on public sidewalk, ∆ -
formulate intent; McAfoos 3 y.o. struck Π’s right leg
H: no strict liability re: battery cases; with tricycle, Π suffered
intent is necessary element injuries.
H: ∆ lacked malicious intent to commit Walker v. Kelly Π taunting ∆ with bicycle. ∆
offense; additionally, ∆ does not possess throws rock at bike, strikes Π
full mental capacity to have substantial in head
certainty to what her actions would lead to
H: ∆ was unable to form intent required White v. Muniz ∆’s g-ma in assisted living
due to diminished mental capacity. home and suffered from
Mental condition alone is not defense for dementia; Π tried to change
battery; fact finders must decide whether diaper while g-ma throw fit;
the ∆ was able to form the necessary Π change diaper and g-ma
intent strike her and throw her out
of room
NO INSANITY DEFENSES in Torts; may Polmatier v. ∆ kills Π’s hubbie. ∆ claims
work in criminal cases Russ insanity covers him from
H: rational intent not required for liability. intent.

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Insanity does not excuse liability for tort
so long as all elements of tort were
present.

Elements of ∆’s conduct

1. ∆ intends to create an offensive or harmful contact.
H: ∆ is liable for battery when he acts Snyder v. Turk ∆ was performing surgery. Π
intending to cause a harmful/offensive was an assistant to ∆ and
contact and a h/o contact results. had been making mistakes.
∆ gets agitates, grabs Π by
the shoulders and pulls her
down into the surgical field.

2. Contact can be with the Π or with and Object the Π is also in contact with.
H: Battery b/c of physical contact through In class Π holding books to side of
objects in hand scenario body; ∆ pushes them, does
not touch Π
H: no battery, must have some physical In class Π has computer in front of
contact with peep A. Even if the object is scenario him; ∆ touches it
only few inches away, it is not battery if
Peep A is not touching it.

3. NO Medical Operations w/o consent (Medical Battery cases – where a doctor performs an
operations without consent)

H: Battery claim can be asserted when Montgomery v. Π went in for penile plaque
there was NO consent for prosthesis Bazaz-Sehgal removal; came out with
operation. inflatable penis prosthes

2. ASSAULT

Elements:
1. ACT that causes immediate apprehension of harmful or offensive contact.
2. INTENT to cause apprehension of harmful or offensive contact or actual h/o
contact to occur
3. CAUSATION - ∆’s act caused Π’s apprehension (must be reasonable)
4. DAMAGES – usually easily shown
1. Words alone do not constitute assault.
H: Threats regarding the future are Dickens v. In 1975, ∆ and buds beat Π
actionable, if at all, as IIED, not assault. Puryear badly, threaten murder and
Assault must be imminent & immediate castration, and release him.
fear. Ordinary words w/o imminent bodily ∆ tells Π to leave town or
contact cannot be assaults. Immediate he’ll kill him.
must be reasonable.
H: 1) If the ∆s put the Π in immediate fear Cullison v. Π was accused by the ∆s of
for his life, an assault has been Medley bothering a female family
committed. member. ∆s enters Π’s
2) Actions that would not constitute home, berate him and
assault are: threaten to shoot him.
A) Words alone (e.g. “I’ll kill you” but
no actual movement
B) Words that negate immediate harm
(e.g. I would kick your ass if there won’t so

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many people around)

2. Doctrine of Transferred Intent applies here as well; can transfer peep or intentional
tort.
H: A ∆ is liable under transferred intent Altieri v. Π is in backyard of
when he/she Colasso someone’s house. ∆ is next
1) Intends to commit a torts against door and intentionally throws
peep A and results in committing a a rock over the fence
tort against Π meaning to scare, not hit, the
and/or peep who lives there.
2) Intends to commit one type of tort Instead, the rock hits the Π
and instead accidentally commits a
different type (e.g. intends assault,
commits battery)
Transferred Intent: Π is allowed to recover In class ∆ shoots at peep C, but hits
since ∆ intended to hit Peep C, but scenario Π. ∆ intended to commit
inflicted injury on Π instead. battery against C.

Random in class scenarios

No assault, stalkers must show pattern of Psycho ∆ calls Π repeatedly
conduct to be liable for assault, b/c it is saying he is watching Π
impossible to prove after one instance that (stalker)
there is imminent bodily harm.
Could be assault but there is a problem Late at night, Π is walking to
with gender differences. Male jurors may the car and hears footsteps
find it hard to reasonably decide that a that seem to be following the
woman was in immediate fear of harm. As Π.
a result, many states are trying to clear up
the gender gap through statutes.
Assault? No, no apprehension. ∆ throws a rock at Π w/ the
intention to scare/threaten Π.
Π never even sees the rock
Assault? No. No apprehension. Battery? Same as above, but rock hits
Yes, b/c contact. Π.
Assault? No, no apprehension. Battery? Black male (Π) at whites only
Yes, b/c physical contact with something buffet. Manager ∆ grabs
that was touching plate away from Π Π does not
see mgr coming.

3. FALSE IMPRISONMENT

Elements:
1. ACT of restraining an individual against her will
2. INTENT to restrain individual against her will
3. LACK OF PRIVILEGE – sometimes lawful imprisonment is allowable
4. MEANS OF ESCAPE – if there is a reasonable means of escape, then Π must try
5. DAMAGES – the Π must either know of imprisonment or must suffer harm due to
imprisonment

H: The mere threat of physical force, or a McCann v. Π is at walmart w/ kids; 2

claim of lawful authority to restrain , is WalMart Stores employees accuse kids of
enough to satisfy the confinement shoplifting week before; tells
requirement for false imprisonment, AS Π that they must come with

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LONG AS: them until cops arrive. They
1. The injured party is aware of the do not call cops and instead
confinement; OR call security guard for ID;
2. The injured party is unaware of security guard tells
false imprisonment, but sustains employees they have the
injury during their confinement wrong kids. Π and family are
released. Employees never
used physical force.
H: a) False Imprisonment IF Π feels leaving In class Professor ∆ threatens
would invoke physical force. scenarios student Π in office: sex or F.
b) Assault IF Π feels immediate bodily
danger.
c) Battery IF Π sleeps with professor b/c of
offensive contact.
Transferred Intent case: ∆ 1st Assaulted Π In class ∆ points gun at Π. Π falls off
and the False Imprisoned Π. scenarios a cliff and is dangling from a
limb.
No False Imprisonment b/c there is no In class Professor tells class to “stay
threat of physical contact or force. scenarios in the classroom until 9:32 or
you will receive an F”
YES, false imprisonment, b/c reasonable In class Prof. and 10 steroid boys
minds would find threat of physical scenarios block door and keep students
contact. in room until a question is
answered intelligently.
No false imprisonment b/c reasonable In class Same as above, but Prof is
peeps would not feel a threat of physical scenarios with 105# girl.
contact.
YES, false imprisonment b/c it is against In class Π is in wheel chair at rehab
Π’s consent. scenarios place. Π is taken to sunroom
and argues not to be put
there. Π is stuck there for
one hour.
YES, false imprisonment even if there is a In class Π and ∆ are in a car going 70
possible escape from the false scenarios mph. Π wants out. ∆ says
imprisonment, the means of escape must “fine, but I am not stopping”
be safe and reasonable.
** IF you did not place the peep in the imprisonment and find out about it, you have no legal
duty to release that person; but, id you begin to set the peep free, you must follow through
with the actions, or you will be liable.
EXAMPLE: you hear a peep in a locked closet, you open the door, see it is someone you hate
and close the door again – you are now liable for their false imprisonment; however, had you
just heard the peep and never opened the door, you are not liable.

4. TRESPASS TO LAND

Elements:
1. ACT – either your body or tangible object enters the land
2. INTENT – either actually intend to enter, or accidentally enter and refuse to leave
land
3. DAMAGES – liability even if there is no physical or economic harm done.
**Can be an invasion or possession, not just ownership (thus apartment renter could sue for
trespass.)

∆ has intentionally entered onto ∆’s land In class ∆ sees a dog coming toward

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and is thus, by strict definition, committed scenario him. ∆ steps onto land of Π.
trespass.

5. CONVERSION OF CHATTELS

Elements:
1. ACT – exercise substantial dominion over chattel
2. INTENT – this can either be intentional taking or could be mistaken taking, either
way liable; it just must be an intent to exercise substantial dominion over chattel
3. DAMAGES – compensate Π for damages

H: ∆ is liable b/c he is exercising dominion In class Peep B steals Π’s watch and
over chattel and has intended to do so scenarios sells it to ∆. B skips town.
(exc. UCC).
H: ∆ is liable even though he did not know In class § takes tort book and burns
of his wrongdoings. scenarios it, ∆ believes tort book is his.
Book is actually Πs.

6. TRESPASS TO CHATTELS

Elements:
1. ACT – exercise dominion over chattel (intermeddling with chattel; time period
does not matter)
2. INTENT – this can either be intentional taking or could be mistaken taking, either
way liable; it could just be an intent to exercise dominion over chattel
3. DAMAGES – compensate Π for damages and return chattel

The ∆ has trespassed on the Π’s site and is In class Ebay Π wants to sue spider
thus liable for damages. It would not scenario websites ∆ for violating their
matter if the ∆ had only trespassed for 1 website
second, time is irrelevant.
1. Conversion – loss in gas ∆ takes Π’s car from Π’s
2. Trespass to Chattel – “borrowing” garage for a joyride
the car
3. Trespass to Land – when ∆ stepped
on property to get car.

7. CIVIL RIGHTS VIOLATIONS

**Section 1983: Person, acting under the color of law, who deprives a citizen of rights,
privileges, or immunities secured by the Constitution, will be liable to the injured party.

A peep operating under the color of law is
liable if he fails to intervene when another
color of law operator is :
1. Using excessive force,
2. Unjustifiably arresting a citizen, or
3. Committing a constitutional violation
against a citizen.
H: 1) 4th Amendment protects citizens
when law enforcement harasses or abuses
Yang v. Hardin Π’s store was broken into. Π
notices one of the cops (∆’s
partner) is stealing a pair of
shorts and confronts him.
∆’s partner gets into
argument with Π.
Argument/fighting occurs
over a period of time. ∆
never tries to intervene on
the abuse.
Graham v. Π has diabetes. Π was
Connor detained on false pretenses

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them, while suffering from an
2) The test of the harassment/abuse must insulin attack and was not
be reasonable, not subjective, and allowed to receive treatment
3) Reasonableness will be relied on he needed.
through the eyes of reasonable peeps at
the scene.
H: 1) There was no search or seizure, thus County of Speeding motorcycle
there is no 14th amendment claim, and Sacramento v. passenger (Π) falls & dies
2)Liability for negligent infliction of harm is Lewis during a high speed chase
not under the threshold of constitutional with cop. Cop car (∆) hit Π
due process. when he fell.
H: 1) Application of unreasonable force to Hudson v. Prison inmate (Π) claims 8th
a prisoner does not violate the 8th McMillan amendment violations for
amendment b/c the 8th is enacted when beatings by prison guards
cruel or unreasonable punishment is (∆).
applied, but
2) Prison officials are liable for malicious
force against inmates.

INTENTIONAL TORT DEFENSES (∆ has burden of proof)

1. SELF-DEFENSE/DEFENSE OF 3rd PERSONS

Elements:
1. PRIVILEGE extends as reasonably necessary to prevent immediate harm;
retaliation and excessive force will not be considered self-defense
2. THIRD PEEPS may be protected in the same way as he would defend himself
**Property defense does not allow deadly force
**Deadly force only allowable when the same force or reasonable peeps would find the same
force is threatened.

H: If Π has a safe and reasonable escape, In Class ∆ pulls gun on Π from 10 ft

Π must try that 1st. If Π does not, he can scenarios away
use deadly force to defend himself from
deadly force threatened.
H: Reasonable peeps would believe that In class Same as above, but Π’s gun
threat is real and thus self-defense is scenario isn’t loaded. Π doesn’t know
legal. that.
H: Π must try to escape if he can do so, In class Same as 1st scenario, but ∆
retaliation is NOT allowable. scenario stops to reload.
H: Self-defense is not claimable, b/c In class ∆ taps you on the shoulder, Π
reasonable peeps would not find the scenario thinks it is mortal enemy,
situation appropriate. turns and karate chops ∆
(who turns out to be buddy)

2. ARREST AND DETENTION

Elements:
1. Privileged if Law Enforcement
2. Shopkeepers’ Privilege (Restatement)
a. Reasonable belief by ∆
b. Peep has possession of goods without paying

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 c. Detention time, Purpose and Hospitality is REASONABLE

H: If a property owner has reasonable Great Atlantic Π was recovering from hear
cause to believe one is stealing from his & Pacific Tea attack and shopping at
store, he may detain individual to Co. v. Paul grocery store (∆ was
retain/recapture property. However, if no manager); ∆ thought Π was
“reasonable belief” is found, he can be shoplifting. Detained Π and
held liable for false imprisonment. searched him. Π had not put
Decision by Maryland courts which did not anything in his jacket nor
follow Restatement. made any movement toward
door.

3. DEFENSES AND REPOSSESSION OF PROPERTY

H: The setting of dangerous devices is only
justifiable if:
1. Trespasser is committing a felony
of violence or felony punishable by
death, OR
2. Endangering human life in his act.
**The use of deadly force is not allowed
when protecting property.
H: Force toward another is only justifiable
if it is appropriate to the threat. One can
only use deadly force if one’s safety (or
another peep’s) is at risk when intruder is
on his property.
Katko v. Briney ∆ rigged a shotgun at the
door of his farmhouse which
kept getting broken into. ∆
broke in and suffered
damages from shotgun blast.
Brown v. ∆ shoots Π at the side of his
Martinez property. Π’s friends were
stealing watermelons at the
other side of property; ∆
meant to scare Π’s friends –
didn’t know Π was there.

Regarding Shoplifters
You can only regain possession if in hot pursuit if a criminal; after that, you must leave it up
to the police or will be liable for any problems as you are escalating a situation and not
keeping the peace.

Repossession of Goods
UCC provides this is lawful; IF it can be taken peacefully, it is allowable, if not it would just be
escalating the situation.

4. CONSENT

Elements:
1. Peep must have capacity to give consent (minors, drunk, mentally ill, druggies
DO NOT0
2. Conduct and/or Words may give consent
3. Illegal acts cannot be consented to

H: Consent is not effective if a person Reavis v. Π previously worked for ∆

lacks capacity to give consent. If ∆ knows
of incapacity, ∆ is liable; if ∆ is truly
unaware of incapacity, ∆ can claim
consent as a defense.
H: If specific consent is given regarding an
act or conduct, that consent must be
Slominski and had sex with him while
there; Π returns to work and
at new year’s eve party ∆
comes onto Π. ∆ says you
want it and Π felt compelled.
Ashcraft v. King Π agreed to operation on
condition any blood

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followed else the ∆ could be liable for all
actions outside of the realm of consent
given.
H: “Implied consent” is given btw a doctor
and patient after the patient is put under
and if there is no one with authority to
consent for patient immediately available.
Why? b/c most reasonable peeps would
comply with the doctor’s orders. Implied
consent does have its limits (e.g. can’t
remove breast or testicle b/c tey found
cancer)
H: If ∆ knows or has reasonable belief that
the consent is not informed consent from
Π, he is not allowed to use consent as a
defense (judged by reasonableness)
transfusions come from
relatives; ∆ uses non-
relative’s blood which was
HIV positive
Kennedy v. Π goes in for appendectomy;
Parrott ∆ finds ovarian cyst and
punctures it. Π develops
phlebitis in leg and files claim
against ∆ claiming it resulted
from punctured cyst which
was outside of her consent.
Doe v. (Magic) Π sleeps with ∆; ∆ has HIV. ∆
Johnson knew of STD or had
knowledge he was at high
risk and did not use condom.
Π knew none of this and
contracts HIV.

State statutes regarding consent

States limit age for the following conduct: sex and abortions.

5. PRIVILEGES NOT BASED ON Π’S CONDUCT

ARRESTS AND SEARCHES

Law Enforcement is privileged to enter land to execute search or arrest warrants. They are
not privileged to invite the media to cover their heroics. Sans Florida, media has no
independent privilege to enter to cover news in the absence of landowner’s permission.

PUBLIC RIGHTS
1. Public places cannot exclude peeps on basis of such things as race or gender.
2. There is a privilege for peeps to enter other’s land to reclaim one’s goods.
3. Privilege of public and private necessities (cases below).

H: ∆ is not liable for Π’s damages if: Surocco v. ∆ blew up/destroyed Π’s
1. In good faith; AND Geary house to stop a growing
2. Necessary to stop and impending conflagaration in San
disaster. Francisco. Π recovered
nothing for his damages.
H: In a public necessity situation, ∆ must Wegner v. Π’s house became involved
compensate innocent parties for damage Milwaukee in a police suspect chase
done. However, the individual ∆s here Mutual Ins. when the suspect ran into
would not be liable, the city/police Co. her house and held himself
department would. there for 3 hours. To end
standoff, cops shot tear
gas/flash-bang grenades into
house, causing extensive
damage. ∆s (cops) refuse to
pay for damages.
H: There is a limit to private necessity; Ploof v. ∆ owned island; Π’s are
there is a justifiable cause of putting one’s Putnam sailing near it when a huge
personal property below another’s life. storm begins. Π tried to tie
Thus, test is what actions a reasonable boat onto ∆’s dock. ∆’s
peep would do because of necessity. servant, acting under orders,

8
 undocks boat. Damages
result.
H: A ∆ is liable for all damages resulting to Vincent v. ∆’s boat is docked on Π’s
the Π’s property when ∆ has been forced to Lake Erie dock while unloading cargo.
remain on the property in the best interest Transportation Upon finishing, a storm blows
of preserving human life. Co. in; ∆ is unable to leave dock.
∆ has private necessity to trespass: ∆’s boat causes damages to
1. If no damage, no liability Π’s dock.
2. If damage, liability for Π’s damages
caused by trespass.

Greater Good vs. The Needs of Few

Privileges cover those for the greater good (e.g. killing 2 kids on the side of the road rather
that having entire bus go over cliff).

NEGLIGENT TORT CASES

Elements:
1. Does ∆ OWE A DUTY?
2. Did ∆ BREACH THAT DUTY?
3. Was ∆’s breach CAUSE OF Π’S INJURIES?
a. Cause in Fact
b. Legal Causation (proximate cause)
4. Did Π SUFFER INJURIES?

1. Establishing Duty
DUTY OF CARE – changes proportionally to the danger/conduct/person involved in act; not a
constant, always changing.
STANDARD OF CARE – what a reasonable peep would do; never changes, is constant.

DUE CARE/REASONABLE PRUDENT PERSON STANDARD

H: There is one standard of care required
for all peeps – this standard requires
reasonable peeps to exercise their duty of
care in proportion to the danger involved in
his act.
SUDDEN EMERGENCY DOCTRINE: (rejected
by some states, Texas included) a peep
who is confronted in sudden peril, not
resulting from their own actions, is not
expected to act as a reasonable peep in
calmer situations, but is expected to act as
a reasonable peep under the same
circumstances. The SED generally just
results in jury confusion.
H: The conduct of a handicap peep must act
Stewart v. Π and ∆ were repairing a car
Motts fuel tank; Π poured gas on
carburetor. ∆ turned key at
some time; sequence of
events is contested. Π is
injured.
Lyons v. Π pulled out of a parking lot
Midnight Sun in front of ∆; Π was killed. ∆
Transp. Servs. claimed he braked and tried
Inc. to steer around her.
Disputed is: 1) ∆ may have
been speeding, & 2) ∆’s acts
may have been inadequate.
Shepard v. Π suffered from cataracts. Π

9
with the same duty of care as another with Gardner tripped on a raised concrete
the same inflictions. Exception is that Wholesale, slab in front of ∆’s business.
drunk peep must act with SOBER Inc.
reasonable care.
H: The conduct of a handicap peep must be Roberts v. Young blind man knocks
with the same reasonable care as others State of LA down old guy on way to
with his same inflictions. toilet.
H: Peeps with Mental Disabilities are liable Creasy v. ∆ suffers from Alzheimer’s
for their negligent torts. BUT a peep who Rusk and was put under the care
inflicts a tort against one who is hired to of BHC. Π was a nursing asst
care for the tortfeasor is not liable. at BHC; Π was aware that ∆
was prone to
violence/aggressive
behavior. ∆ kicked Π many
times during a temper
tantrum.
H: There is a higher duty of care with an Hill v. Sparks ∆ operated a machine and
increase of expertise. Held to duty of care had seasonal experience with
of a reasonable peep with the same it. ∆ instructed Π’s wife to
knowledge. stand on a ladder on
machine; wife fell and died. ∆
knew of risk as he had
overheard a conversation
discussing the risk.
H: A child engaging in activity that is Robinson v. Π, 11 y.o., lost full use of her
inherently dangerous shall be held to an Lindsay thumb while ∆, 13 y.o., was
adult standard of care. A child’s normal operating a snowmobile
activity holds her to the standard of care
which would be reasonable for a reasonable
child of her age.

Negligence as a Matter of Law (Negligence per se)

Violation of Duty of Care Arising from a Statute/Ordinance/Administrative Regulation
1. Π IS WITHIN THE CLASS OF PEEPS PROTECTED BY STATUTE
2. INJURY WAS INJURY STATUTE WAS TRYING TO PROTECT
**there may be no negligence per se just because a peep was unlicensed in a situation
where he should have been licensed.
**the resulting injury must be result of violation of statute.
**Eliminates Π’s need to prove a duty was owed b/c statute prescribes duty.

H: All violations of statutes/ordinances/ Martin v. Π was traveling by buggy

administrative regulations can constitute
negligence per se.
H: Π is not liable for contributory
negligence, even if breaking statute, if the
actions taken were ones that reasonable
peeps would have taken for safety
measures. Statutes designed to protect
pedestrians, but in this case, statute was
Herzog and rounded a curve when ∆
was coming around same
curve; ∆ crossed the center
line and struck Π; Π died.
Statute states buggies must
have front/back lights; Π had
no lights on.
Tedla v. Πs were walking w/ the flow
Eilman of traffic; ∆ hit them. Statute
states peeps must walk to
the left of the center line; Πs
were walking to right.

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putting pedestrians in more danger.
H: EXCEPTIONS – BASIS FOR IGNORING Impson v. ∆’s truck attempted to pass a
STATUTE: Structural car with in 100 ft of an
1. Violation is reasonable b/c of actor’s Metals Inc. intersection; ∆’s truck struck
capacity (too young, medical a car turning left into the
emergency, lack of mental capacity) intersection. Statute holds
2. Violator does not know, nor should no passing within 100 ft of
the violator know, of the occasion for intersection.
compliance (unexpected tail light
goes out)
3. Violator is unable after reasonable
diligence or care to comply;
4. Violator is confronted with
emergency not due to his own
misconduct (unexpected tire
blowout, brakes failing, smoke/dust
from highway)
5. Compliance would involve greater
risk of harm to actor or others
H: Conduct of child in negligence per se is Rudes v. Π, 8 y.o., was struck by ∆’s
not held to a standard of an adult; rather, Gottschalk car when crossing a
child is treated with the general rule of child “controlled access
standard of care. expressway”; ∆ is claiming
negligence per se b/c Π was
not in a crosswalk and
statute holds that
pedestrians must yield to the
right of way if not in
crosswalk.
H: There is no negligence per se claim b/c Wright v. Dog was released from
Π’s injuries were not the injuries the statute Brown quarantine early (in quar. b/c
was meant to protect. Thus, no negligence he bit a peep); quarantine is
per se if circumstances are outside the meant to hold dogs for 14
statute. days to check for rabies. Π
was attacked by dog while
dog should have been in
quarantine. Π suing dog
warden of quar. area and
city.
H: Π must be in class of peeps statute is Haver v. ∆ pulled over on the left hand
trying to protect. Had ∆ been following the Hinson side of the street and parked
statute and the same circumstances to talk to a friend. Π was a
occurred, the results would have been the little kid with the friend.
same. Upon leaving ∆ checked
mirrors and pulled out. ∆
heard a thud and stopped
car. Small kid was under car.
∆ broke a statute of parking
on the wrong side of the
road.

2. Establishing Breach

ASSESSING REASONABLE CARE BY ASSESSING RISKS/COSTS

H: If ∆ acts with the same standard of care Indiana ∆ was borrowing brother’s

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as a prudent peep in same circumstances Consolidation lawnmower; lawnmower
would have, ∆ is not negligent. v. Mathew catches fire and burns
The law preserves that you hold any chance garage down.
of harm to human life over any chance of
harm to property.
H: Stinnett v. Π was employed by ∆ as a
1. Some jobs have inherent risks and Buchele farm laborer. Π was painting
there is no way to make them totally barn roof, fell and sustained
safe; as long as reasonable injuries. ∆ was a doctor and
measures are taken, there is no Π has had jobs where he has
negligence. painted roofs before.
2. Employers owe a duty of ordinary
care as other employers would hold
in same situation. An employer’s
duty is limited to their own
knowledge.
3. If the situation is in Π’s expertise,
and not in the knowledge of ∆, Π is
in the better position to minimize
the risk due to expertise.
H: Some hazards are so inherently Halek v. Π (mechanic) attempted to
dangerous that their existence is adequate United States retrieve a bold which fell into
warning and thus dissolving the a cage surrounding an
landowner’s duty of care. This does not elevator pulley. Pulley
hold if the danger along is not, in itself, injured Π. ∆ had put cage
enough to eliminate serious injury. For around elevator pulley to
example: Chrysler Case – Texas S. Ct. held protect workers.
that Chrysler did not need to warn of riding
in back of trucks b/c danger was obvious.
A landowner’s duty is to warn of danger.
H: A design company must anticipate the Bernier v. ∆ owns an electric pole which
environment in which its product will be Boston Edison was involved in a number of
used and it must design against the Co. events resulting from a
reasonably foreseeable risk attending the traffic accident. The pole fell
products in that environment. on Π’s legs; Π is suing for the
negligently placed pole.
H: Foreseeability alone does not constitute Giant Food, Π was shopping at ∆’s store.
negligence. The risk of harm to an invitee Inc. v. Mitchell Store manager attempted to
is weighed against the privilege to protect apprehend a shoplifter.
one’s property. Obviously, the ∆ would Shoplifter knocked down Π as
have overstepped this privilege had ∆ shot he ran out the store.
a gun in the store.
H: Benefit of society at large may outweigh Parsons v. Π was thrown from a horse
particular interest of 1 peep. Foreseeability Crown when a garbage truck’s noise
must be present for negligence; here there Disposal Co. startled the horse.
was no foreseeability, had the ∆ been at a
horse track, there would have been
foreseeability.
H: Hand’s Risk Utility Formula = cost – United States Peeps operating Carroll
justified rules of safety v. Carroll Towing negligently caused
Towing Co. another boat to break adrift.
Burden<Probability (Injury/Loss) = That boat collided with a
Duty tanker and sank. The boat
Burden>Prob. (Injury/Loss) = No Duty did not have a bargee on

12
 board.

Proving Conduct

H: Negligence must be proved by a Gift v. Palmer ∆ was driving down street. Π

preponderance of evidence (must prove ∆ was hit by ∆’s car. No
was negligent and that ∆’s negligence was eyewitnesses; ∆ does not
cause of Π’s injury). Π must prove ∆ know what happened and Π
breached a duty. cannot remember.
H: A witness’ credibility is judged by the Upchurch v. Π was riding with ∆; ∆ lost
fact finders (jury). Rotenberry control of car and Π died.
H: Circumstantial evidence that infers other Forsyth v. Villa hit a car where Π was an
evidence is allowable. Joseph occupant. Circumstantial
evidence showed Villa was
speeding.

Evaluating Conduct

H: If the appropriate amount of care is District Π was on a slide located in a

within the realm of everyday activities and Columbia v. playground maintained by ∆.
common knowledge, expert testimony is Shannon Π put her thumb in a hole at
unnecessary. top of slide and thumb came
off.
H: If a jury can reasonably infer, by John Q. Π grabbed onto a towel bar
common knowledge and ordinary human Hammons, in ∆’s bathroom (at a hotel).
experience, that the ∆ did or did not Inc. v. Poletis Towel bar fell off, exposing
exercise reasonable care, expert testimony mold.
is not needed.
H: The longer a potentially dangerous Thoma v. Π slipped in common area of
situation exists, the greater the likelihood Cracker Barrel ∆’s restaurant. She and a
that someone will be hurt and the greater witness had not seen
the likelihood that the ∆ breached his duty. anything spilled there in
approx 15 minutes.
H: Proof of general custom/usage is Duncan v. Π was injured when ∆’s top
admissible evidence b/c it may establish a Corbetta step collapsed.
standard of ordinary care, even where an
ordinance state certain minimum
requirements and those requirements have
been met.
Evidence allows jury to decide what the
standard ought to be.
H: Safety Codes/Manuals may be admitted McComish v. ∆ did not follow
into evidence as they show a “common DeSOI manual/safety codes in
practice.” They may not be presented as making an “a” sling and
an absolute measure of due care. peeps were hurt.
H: While custom and “reasonable peep” T.J. Hooper 2 barges towed by 2 tugs
acts may or may not overlap, custom may were lost at sea. Tugs did
be overruled by the standard of care a not have radios on board.
reasonable peep would have been better
and safer.
EXAMPLE: medical research – custom may
be laparoscopic surgery, but the surgery
may be safer if done open.

Res Ipsa Loquitur

13
“The Thing Speaks for Itself”
Π must prove:
1. Event normally does not occur absent of negligence.
2. Negligence is attributable to ∆ and all other possible reasons/peeps have been dismissed.
** There is a 3rd more debated element (see below)

H: Res Ipsa Loquitur – the thing speaks for Byrne v. Π was walking down the
itself. Boadle street; barrel of flour
The act itself was SO obviously negligence dropped on his head. Barrel
that proof of breach is unneeded. #1 was from ∆’s store.
Question: Does the act happen more often
than not b/c of negligence?
H: RIL – harm suffered by Π may be inferred Valley Prop. V. Π rented ∆ workspace at his
to have been caused by ∆’s negligence Steadman’s warehouse. Fire starts in ∆’s
when: Hardware area and burns warehouse to
1. Event normally does not occur the ground.
absent negligence
2. Negligence is attributable to ∆ and
all other possible reasons/peeps
have been dismissed.
3. Negligence is within scope of ∆’s
duty to Π.
H: RIL – Eaton v. Eaton Mom and daughter involved
1. Event normally does not occur in car wreck. Dad sues
absent negligence. daughter for mom’s death
2. Instrumentality under ∆’s exclusive b/c she was driving.
control – debatable.
3. No negligence on part of injured
person – Π or 3rd party cannot have
contributed to the injury.
H: Control requirement is not rigid; it is a Giles v. City of Π is an elevator operator hurt
basis for the inference of negligence, but it New Haven b/c of elevator problem. ∆ is
does not have to be found that the ∆ the maintenance for the
maintained exclusive control. Π’s use of elevator.
the instrument does not, in itself, bar RIL
instructions.
H: Pure speculation cannot be sufficient for Warren v. ∆ is run over by car which
RIL claim. Π has the burden of producing Jeffries was parked at his house and
some type of evidence. If the Π does not he was in b/c his momma
produce this, the court may think/infer: and family were running
1. Evidence proves Π wrong, or errands.
2. Π didn’t bother to investigate.
H: If Π’s evidence toward RIL is so extensive Windmyer v. Airplane crashed; no one
as to leave nothing for the fact finders to Southeast knows why.
infer, no need to instruct on RIL. Skyways

3. Establishing Harm and Causation in Fact

H: No injury for ∆’s negligent actions, no Copeland v. Π alleges ∆ negligently

liability for ∆. Compton caused accident btw them
and Π suffered injuries. Π’s
injuries concurred with the
same injuries he had for

14
 years.

CAUSE IN FACT

1. But-For Test

H: Negligence must prove cause in fact; Π Salintero v. Π was in accident, went to ∆

must show but-for ∆’s actions, Π would Nystrom for xrays. ∆ forgot to ask if Π
have avoided injury. was pregnant. Π didn’t know
she was pregnant. Π had to
abort baby.

2. But-For Possible Issues

H: If the tortuous act of 2+ ∆s join to Landers v. Π owned a small lake which

produce an indivisible injury, all ∆s will be East Texas ∆’s dumped salt water and oil
held jointly and severally liable. If the Salt Water into. There was no way to
injury can be divided, proportional damages Disposal separate the injury to the
should be awarded. lake.
H: Where a ∆’s negligent acts occurred at Anderson v. Π’s house burned down;
the same point of another’s negligent acts Minneapolis, proof that another fire may
(NOT Πs), and both acts alone would have St. Paul have mingled with ∆s fire
resulted in Π’s injury, the jury may be Railway and that fire would have
charged with the substantial factor test. destroyed Π’s property
SUBSTANTIAL FACTOR TEST – requires a anyway. (indivisible cause –
jury to decide the ∆’s degree of causation, if either origin would have
the degree of causation is found to be resulted in injury)
substantial, the jury may hold the ∆ liable.

3. Proof of what exactly was caused

H: ∆ is liable for injuries they cause and Dillon v. Twin Π lost balance off of bridge
which can be determined. State Gas & girder and in an attempt to
**When ∆’s negligence causes harm, but Electric Co. stop his fall, grabbed on to
other circumstances exist so that harm an uninsulated high voltage
would have been caused absent of ∆’s current wire (∆s); Π died of
negligence, the ∆ is liable for the difference electrocution.
btw the condition the Π would have been in
had ∆ not been negligent and the Π’s
condition.
H: Where 2+ ∆s commit substantially Summers v. Π was with 2 ∆s hunting.
similar acts, one which caused the Π’s Tice Both ∆s shot in Π’s direction.
injuries, the burden of proof shifts to the ∆s Π was hit in the eye and the
to prove whose act caused the injury. If the mouth. No way to tell which
∆s are unable to do so, both ∆s must be ∆ hit where.
held liable for the injury (i.e. no divisibility,
both held liable)
H: There is a cause of action for LOST Wollen v. Π’s hubby dies of cancer. ∆
CHANCE OF SURVIVAL in med mal cases. DePaul Health failed to diagnose and treat
Here, the ∆ could recover for the 30%. Center Π’s hubby. Had ∆ done so,
Π’s hubby would have had
30% chance of survival.
H: Π must prove by a preponderance (50%) Fennell v. Π’s wife dies b/c of
of evidence that ∆’s actions caused the Souther negligence in operating
death. Thus, in this case, 40% chance of Maryland room. Had she been seen

15
survival means that it is more likely that the Hosp. Center and diagnosed, should would
disease caused the death, not the doc’s have had a 40% chance of
negligence. Had the Π had a 51% chance, survival.
preponderance of evidence shows it was
more likely the doc’s fault. CHANCE OF
SURVIVAL BY PREPONDERANCE.
H: INCREASED RISK OF HARM – a decrease Alexander v. Π was misdiagnosed by ∆
of probability in long-term survival due to Scheid and by the time she went for
the ∆’s negligent actions is grounds for Π’s a 2nd opinion, her chance of
recovery as a negligence c/a. survival was significantly
**EXAMPLE – TOXIC TORTS: difficulty is that reduced due to the delay.
problems take a long time to develop; thus
creating a challenge of who gets
compensated now for projected increased
risk; statutes have begun to regulate
distribution of award.

4. Legal / Proximate Cause

H: Π’s injuries must be within the Medcalf v. Π buzzed her friend from
foreseeable scope of risk created by ∆’s Washinton outside of apartment; buzzer
negligent actions for ∆ to be negligent Heights Condo for door broken. Before
under proximate cause. Assn friend could come and get Π,
Π was attacked. ∆ is condo
assn.
H: The duty to avoid injuring others extends Palsgraf v. ∆ was railroad guard; pushed
only to those who the ∆ should foreseeably Long Island man into rr car as he was
anticipate are at risk from ∆’s negligent RR Co. trying to make the train.
actions. Unknown man’s package fell;
Π was “unforeseeable Π” whom ∆ owed no fireworks were inside.
duty. i.e., Π was not in a foreseeable zone Fireworks cause an explosion
of danger. which caused scales flying.
**DISSENT: ∆ owes a duty to everyone! Π injured by scales.

Rescue Doctrine
A attempts to rescue B from C’s breach of duty (B is in peril). A is injured rescuing B; C is
liable. It is foreseeable that C’s negligence may bring about a rescuer. Therefore,
proximate causation and C is liable fore damages resulting to A (as long as A is not acting in
risky, etc. behavior).

H: An accident which occurs in a way that is Hughes v. Lantern fell into exposed
not foreseeable is still held to the ∆’s Lord Advocate manhole left open by ∆s. Big
liability IF the ∆’s breach of duty foresaw explosion, Π seriously
type of accident that occurred. injured.
The accident was w/in the ∆’s scope of risk.
H: There is no proximate cause action for Doughty v. Π was a worker at
negligence if ∆’s breach of duty does not Turner manufacturing plant. ∆
cause the foreseeable injury/risk to the Π Manufacturing knocked asbestos/cement lid
(here ∆’s duty was to not splash Π when he Co. into a vat of hot-ass molten;
negligently knocked lid in; nothing was the lid and chemicals in vat
known of unexpected factor). caused and unexpected
explosion and seriously hurt
Π.
H: If ∆’s negligence results in the Hammerstein Π had diabetes, was
foreseeable harm/injury, ∆ is liable for the v. Jean supposed to stay on ground

16
full extent of the harm, regardless if the
extent was not foreseeable.
H: ∆’s actions are negligent if a foreseeable
harm/injury results to a peep w/in the ∆’s
duty of care; if the injured peep us not w/in
that class of peeps, Π’s injuries were not
foreseeable and ∆ is not held liable.
**B<P(I) – define duty, is risk w/in scope of
duty?
Development floor, got put on 4th floor, had
West to go down the stairs when a
false fire alarm went off (had
occurred many times before,
∆ never got the glitch fixed).
Π sprains ankle and gets a
blister . . . ends up losing
foot.
Mellon Π was stopped by a cop and
Mortgage Co. taken to parking garage and
v. Holder sexually assaulted. ∆ owned
parking garage and knew
that crimes took place there
(generally).

Thin Skull Cases

Contact caused by ∆ which may have caused only minor damages to most, creates large,
unforeseen damages to Π. Π recovers fully. ∆ must “take the Π as she finds him.”
Therefore, if Π has small blood clot and ∆’s knock on head causes it to rupture, ∆ is liable for
full extent of damages.

Fire Cases
∆ negligent in setting fire. Fire spreads beyond foreseeable injury. If through no fault of the
Π’s damages are more severe, ∆ is liable. New York limits loss to the 1st Π; that Π is the only
one who recovers.

H: ∆ is not liable for intentional criminal acts Watson v. ∆’s RR negligently dumps
of another party which inflicted the Kentucky & derails gas tank car and gas
harm/injury. The acts are not foreseeable Indian Bridge springs a leak. 3rd party
and constitute a superseding intervening & RR throws a match; explosion
cause. occurs and Π is injured.
H: An intervening act will not serve as a Derdiarian v. Π was working beside a
superseding cause (∴ releasing ∆ of Felix kettle full of lot liquid
liability), IF the foreseeable risk of the Contracting enamel; ∆ set kettle facing
intervening act is the same foreseeable risk Corp. on-coming traffic with only 1
associated with ∆’s negligence. *B<P(I) horse barricade and 1
flagman. 3rd party comes
down the road and has
seizure (4got to take
medicine). Car hits kettle and
hot liquid strikes Π. Π
harmed extensively.
H: ∆ & 3rd parties negligence were not Sheehan v. Sheehan (∆) drives NYC bus;
concurring. The ∆ negligence put the bus City of New Π is a passenger. Sheehan
into the position which had NO bearance on York does not pull in bus lane and
the 3rd parties negligence (thus bus was but instead lets peeps out in
a condition). The result would have been driving lane. Sanitation
the same had there been no negligence on truck’s brakes fail; sanitation
∆’s part (i.e. sani truck is only culprit) truck rams bus.
H: ∆ is not liable for 3rd party’s intervening Ventricelli v. ∆ rents Π a car with a faulty
act which was not foreseeable to the ∆’s Kinney trunk. Π, parked on side of
negligence. Π could have been in the same System Rent A street properly, is attempting
position without ∆’s negligence. Car to slam trunk shut. A 3rd
party (a couple of car lengths

17
 back) car suddenly lurches
forward and rams Π.
H: TERMINATION OF RISK – when the risk of Marshall v. Π was in car w/ buddy.
∆’s negligence is over, and further Nugent Buddy was forced off the
situations can no longer be attributed to ∆ road b/c of oncoming truck.
as a matter of proximate risk. Truck pulls over to help
buddy pull car back onto the
road. Π runs to top of hill to
warn oncoming traffic.
Another car hits Π.
H: If a ∆ responsible for an accident which Anaya v. Trash truck collides with Π’s
causes Π’s injuries, ∆ is also liable for any Superior Court family. Π is being airlifted to
injuries/death which occurs during the a hospital. Helicopter
course of medical treatment while treating crashed; Π dies.
the Π’s injuries.

DEFENSES TO NEGLIGENT TORT CASES

1. Contributory Negligence/Comparative Fault

Traditional Old School Rule

OLD SCHOOL CONTRIBUTORY NEGLIGENCE Butterfield v. ∆ had part of road blocked

– Π may not recover any damages if Π was
not exercising due care when involved in an
accident arising from ∆’s negligence. ∴ Π
is barred completely from recovery.
Forrester with a pole while he was
repairing his house. Π came
along riding his horse (Sans
ordinary context) and was
thrown when the horse hit
the ∆’s pole.

Comparative Negligence Rule

H: A jury may reduce Π’s damages if it is Brittain v. Π went into excavation of

found that Π was contributory in the Booth underground tank and it
negligence (reduction is in the % the jury caved in on him. Π was
finds that the Π was negligent). found 49% negligent and ∆
Contributory negligence is based on what a (supervisor) was found 51%
reasonable peep would have deemed as negligent. Jury deemed
risky, regardless if the Π did or did not. damages to be 10K, ∆ had to
thus pay his portion, $5100.

Pure Comparative Negligence Rule

Comparative Negligence – jry weighs the Wassel v. Π was raped repeatedly by a

cost of the Π and ∆ to avoid injury; thus, the
amount of negligence charged to each
party is based on the cost of their non-
negligence and weighed.
Π CAN RECOVER REGARDLESS OF % FOUND
NEGLIGENT, BUT CAN ONLY RECOVER FOR
THE % ∆ WAS NEGLIGENT.
Adams man in a seedy motel she
was staying at. Motel was in
a bad part of town, but
innkeepers had not warned
her of this. She opened the
door at 2:30am thinking it
was her fiancé.

Modified Comparative Negligence Rule

Π’s NEGLIGENCE MUST BE LES THAT ∆’S OR Π IS BARRED FROM RECOVERY.

18
**i.e. Π is 51% negligent and ∆ is 49%, Π is barred from recovery.

H: RESCUE DOCTRINE – a rescuer cannot be Ouelette v. ∆ was pinned under fallen car
held liable for contributory negligence Carde in garage; Π came to rescue
UNLESS the rescuer was acting recklessly in him. When Π flipped the
the rescue; ∴ ∆ cannot ask jury to reduce garage door opener, Π
damages from rescuer’s contributory caught on fire b/c a spark
negligence. from door opening ignited
car gas.
H: Rescue Doctrine holds that ∆ owes duty Govich v. Defective coffee maker
to rescuers. Jury must decide the allocation North catches house on fire. Π1
of negligent fault btw Π and ∆. American runs into house to save
Systems hearing aid dog; Π2 runs into
house to save Π1. Suit filed
against coffee maker
manufacturer.

Last Clear Chance or Discovered Peril

If ∆ establishes that the Π was contributory negligent, Π will take nothing unless last clear
chance comes into play. Last Clear Chance – if ∆ has the last clear chance of recovery, Π
can recover regardless of negligence.

H: As a matter of public policy, No Barker v. Π (15 y.o.) makes pip bomb

Comparative Negligence in this case b/c Kallash from firecrackers he bought
court will not aid Π who engages in from ∆ (9 y.o.); bomb
substantial violation of the law - ∴ no explodes and hurts Π.
contrib.. fault if illegal act, but must be
substantial illegal act, not just jaywalking.
H: Π’s negligence is shielded from a contrib. Bexiga v. Π (minor) is using ∆’s
negl. Defense when Π’s injuries were the Havir machine; Π places hand
same result as the injuries ∆ is under a duty Manufacturing under ram while depressing
to prevent. Corp. the foot pedal. Π’s hand is
∴ not defense for ∆ when ∆’s breached screwed up; engineer
duty and the injury/negligence is testifies that there are safety
foreseeable. ** could utilize Carroll Towing devices that the ∆ could have
here: B<P(I) . . . cannot cost that much as manufactured on the
manufacturers are already putting them on machine to prevent
their machines. accidents such as this.
H: There is NO contributory negligence McNamara v. Π hanged herself in a mental
defense when ∆’s duty of care included Honeyman health hospital; Π died from
preventing the acts which injured Π. In this injuries sustained.
case, ∆ had a duty to prevent self-abuse or
self-destructive acts which may cause
injury.
H: Idea of ENTITLEMENT – a peep has a duty LeRoy Fibre Π’s land was adjacent to ∆’s
of care to not injure others on his property. co. v. Chicago RR; Π stacked flax on that
If he has thus not breached this duty by RR side of property and flax
negligence, a ∆ cannot claim negligence. caught fire for RR sparks. ∆
argued Π was contributorily
negligent b/c he stacked flax
near RR.

II. ASSUMPTION OF RISK

BOYLE v. REVICI

19
F: ∏ had cancer, was advised of surgery. Instead went to doc (Δ) who treated cancer with
medicine. Δ warned ∏ that his medicine was not FDA approved and he could give no
guarantee; ∏ died.
H: If ∏ makes a voluntary express assumption of risk, ∏ is barred from recovery.
(traditional)

TUNKL REGENTS OF UNIVERSITY OF CALIFORNIA

F: ∏ alleged hospital (Δ) caused injuries to him while under their care. Δ said ∏ can’t sue b/c
∏ signed a waiver of rights prior to treatment.
H: Exculpatory agreements cannot be valid if the release is
1. Involuntary (i.e. sign or no health care!),
2. Without consideration, and
3. Against public policy (imagine if all hospitals had such a clause).

CIOFALO v. VIC TANNEY GYMS, INC.

F: ∏ signed waiver when she joined gym; ∏ slips near pool and sues Δ.
H: Exculpatory Clauses (one which excludes liability) can be valid:
1. Language must be express before Δ will be exempt from liability;
2. ∏ appreciates the risk;
3. Clause will NOT be upheld if there is a special legal relationship or overriding
public interest (i.e. public utilities, hospitals (as above), etc.).

JONES v. DRESSEL
F: ∏ was sky-diving and signed waiver for all Δ’s actions (negligent or non-neg) while on
premises or in aircraft. Plane crashed and ∏ sued.
H: 1. Clause was not an adhesion clause b/c there was no disparity in bargaining
power (∏ could have gone elsewhere or not gone at all).
2. An exculpatory clause will not cover willful or wanton negligence.
3. Exculpatory clause will cover normal negligence as long as an unambiguously
expressed intent is present.

BETTS v. CRAWFORD
F: ∏ was housekeeper for Δ and tripped on items on stairs. Δ claims assumption of risk.
H: There is no longer a distinction between assumption of risk and comparative
negligence.

CREWS v. HOLLENBACH
F: ∏ was called to fix gas leak (∏ works for gas company) that Δ negligently caused.
Explosion occurs and ∏ is injured.
H: Assumption of Risk (Traditional Analysis) – bars all recovery of injury
(1) ∏ has knowledge of the risk of danger (objective standard);
(2) ∏ appreciates the risk (i.e. understands);
(3) ∏ voluntarily exposed him/herself to the risk.

SIRAGUSA v. SWEDISH HOSPITAL

F: ∏ was a nurse at the Δ hospital; ∏ was at wash bin when the door opened and a large
hook jabbed her in the back.
H: An employer has a duty to furnish the employees with a safe work environment. If
the employer breaches this duty, the employer is barred from using an assumption of risk
defense against employee. However, had the employee’s voluntary exposure to the
risk itself not been unreasonable, the defense may be used.

SUNDAY v. STRATTON CORP.

F: ∏ was skiing on Δ’s smooth novice trail. ∏’s ski hit a small brush on trail covered by snow
and was injured.

20
H: Primary Assumption of Risk
Δ owes no duty to the ∏; ∏ recovers no damages b/c no duty for Δ to breach.

Secondary Assumption of Risk

Δ owes a duty to the ∏; ∏ goes ahead and participates in the risk.

**here, the Δ owed a duty of reasonable care to ∏ and thus there was a breach of this
duty.

BJORK v. MASON
F: ∏ is with Δ playing on an inter-tube at the lake; rope snaps and hits ∏ in the eye.
H: ∏ assumes all risks and dangers inherent with the sport; however, ∏ does not assume
those risks/dangers not inherent in participation. Thus, here, Δ had a duty to upkeep
his equipment and he breached that duty.

TURCOTTE v. FELL
F: Jockey was thrown from a horse; jockey claims Δ clipped his horses heels and should be
held liable.
H: Comparative negligence must be weighed by (1) ∏’s assumption of risk, and (2) how
and if Δ had a duty to him after ∏’s assumption of the risk. Here the Δ would have to
have acted recklessly or intentionally to be held liable b/c ∏ did not assume nor
consent to such action.

GAUVIN v. CLARK
F: ∏ was butt-ended by Δ during college hockey game in the abs.
H: Unless the trier of fact finds that the Δ acted recklessly, willfully, or wantonly, injuries
in athletic events are usually dismissed against the Δ as the ∏ has assumed the risk in
participating in the event/sport.

What about SPECTATORS? Spectators assume the risk of injury resulting from the
sport activity when they arrive at the event; however, if it is found that the event has not
provided reasonable safety to known and frequent risks, the event may be found
liable (however, this only covers the basic safety precautions as it would be ridiculous for a
baseball park to be enclosed from the spectators for fear of a home run knocking
down a grandmother).

III. STATUTE OF LIMITATIONS

CRUMPTON v. HUMANA, INC.
F: Medical Malpractice suit filed after 3yr statute of limitations.
H: Statute of Limitations can and will bar suits from being adjudicated if the time period
has lapsed. Extremely important that lawyers do not screw this up. Additionally, even if
an adjustor of someone of the like tells you that “we can work it out without the courts”,
and the statute is about to run, file the suit. Never rely on something like that.

SHEARIN v. LLOYD
F: Appendectomy performed in july of 1951; removed sponge (oops) in nov 1952; ∏ had
numerous other problems resulting from sponge originally left in body in 1951.
H: TRADITIONAL (HARSH) RULE – statute commences when the cause of action arises
(injury occurs); thus, in the instant case, it began running in july of 1951.

SCHIELE v. HOBART CORP.

F: ∏ experienced medical problems resulting from Δ’s machine’s fumes; she used product in
1972, quit job and underwent testing in march 1974; diagnosed and doc told of probable link
in april 1974.

21
H: DISCOVERY RULE – statute of limitations begins when (1) a reasonable peep
associates his/her symptoms with a serious or permanent condition and, at the same
time, (2) a reasonable peep would think Δ may have induced the condition.

McCOLLUM v. D’ARCY
F: ∏ sues parents for alleged sexual abuse 35 yrs earlier; ∏ recovered memory in therapy.
H: Discovery rule tolls statute of limitations. However, Δ could argue that ∏ should have
or in fact did discover earlier.

DOE v. MASKELL
F: ∏s were sexually abused by school chaplain in the late 60s and early 70s. ∏s’ allege the
memories were repressed and filed suit upon remembrance in the 1990s.
H: COLLECTIVE REPRESSION – memory is repressed after a cluster of memories of
events are gathered – no recovery b/c the ∏ remembers for a period of time
before these memories are repressed.
SERIAL REPRESSION – memory of event is repressed immediately; unable to
distinguish this from “forgetting” b/c there is no scientific evidence which supports
either the theory itself or whether the ∏ is telling the truth about repression or forgetting.
Therefore, the theory does not allow the discovery rule to toll the statute of
limitations.
HYPNOSIS ISSUES – don’t know if these memories are for-real or if they are a result of
projection, thus again problematic for court to distinguish

LATENT POTENTIAL HARM

Issue raised in toxic tort cases a lot, when will statute run out if ∏ has been exposed to
cancer causing substance now, but will not likely get the cancer for 20 years? 4 options.
(1) ∏ can recover now for any actual harm plus future injuries (future injuries reduced
to reflect actual probability).
(2) ∏ may only present actual now damages, but these damages may include
inflictions of emotional distress for future harm.
(3) ∏ recovers only what he can prove now and is barred from further recovery.
(4) ∏ can recover for present harm and allow further suits if a substantially different
damage occurs in the future.

TOLLING THE STATUTE OF LIMITATIONS FOR DISABILITIES

(1) Minors have the statute tolled until age of maturity.
(2) Incompetents have statute tolled until they become competent or a guardian is
appointed to them.
(3) Disabilities (1 and 2) may be have clock stopped (“tolled”) until peep is no longer
disabled.
EXAMPLE: ∏ is in accident on January 1st, 2002; ∏, for other reasons, is in coma from
March 1st, 2002, until August 1st, 2002. Tolling begins March 1st and ends August 1st.
Therefore, if ∏ had 2 years to file claim normally this would be January 1st, 2003,
however, under “tolling” the new date would be June 1st, 2003. (Roughly).
(4) OR jurisdiction may instead use Grace Periods, thus the clock is not stopped, but there is
an extension to the time.

DASHA v. MAINE MEDICAL CENTER

F: Δ misdiagnosed ∏’s brain tumor; treatment rendered ∏ mentally incompetent. Another
doc realizes mistake two years later.
H: The negligent diagnosis occurred before ∏ was rendered mentally incompetent and
therefore, the discovery rule cannot be used to toll the statute of limitations.

MILLER v. WARREN

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F: ∏ suffers burns when fire breaks out in motel room; no smoke alarms (fire code didn’t
require it).
H: Statutes, like custom, set the floor for the standard of care. If Δ knows or reasonably
should know of foreseeable risks that the statute does not cover, Δ still has a duty to
protect against such risks. This case is like the case where the ∏ put his foot through
the step and there was a debate about which type of wood to use.

DUTIES FOR CARRIERS, HOST-DRIVERS, & LANDOWNERS

I. CARRIERS AND HOST-DRIVERS
DOSER v. INTERSTATE POWER CO.
F: ∏ was passenger on Δ’s bus when a car turned in front of bus. ∏ was injured.
H: A carrier of passengers for hire owes a higher duty of care for both the foreseeability
of danger and in guarding the passengers from danger.

II. LANDOWNERS’ DUTIES TO TRESPASSERS, LICENSEES, CHILDREN, INVITES

TRESSPASSER
(1) No duty save avoiding intentional, wanton, or willful injury

LICENSEE (SOCIAL GUEST)

(1) Permitted on land by owner’s consent or licensee’s privilege
(2) Has a duty to warn/give notice of known, dangerous, hidden, and artificial conditions; no
duty to inspect; has duty for no intentional, wanton, or willful injury

INVITEE (I.E. DILLARD’S CUSTOMER)

(1) On premises to bring a benefit to occupier/landowner or it is a public place
(2) Duty to inspect and reasonably warn of hazardous conditions
(3) Duty to exercise ordinary care

LESSOR
(1) Not liable for hidden/unknown dangers
(2) Liable for dangers known of or faulty repairs of dangers; but, if the lessee knows of
danger, lessee is liable, not lessor

ATTRACTIVE NUISANCE (LIABILITY FOR TRESSPASSING CHILDREN)

(1) Foreseeable that child will enter land
(2) Foreseeable that child will be hurt
(3) Child is too young to appreciate or protect himself from risk or danger
(4) Landowner fails to act reasonably by allowing danger to exist
(5) EXCEPTIONS: Common Hazards
1. Pools of Water
2. Fire

GLADON v. GREATER CLEVELAND REGIONAL REANSIT AUTHORITY

F: ∏ jumped by 2 guys while waiting for train. ∏ ends up on tracks; ∏ hit by train.
H: ∏ became a trespasser when he fell onto tracks; Δ owed only a duty to refrain from
wanton, willful, or reckless conduct.
If landowner knows or discovers a trespasser or licensee is in a position of peril, the
landowner must exercise ordinary care to avoid injuring him.

O’SULLIVAN v. SHAW
F: ∏ attempted a racing style dive into Δ’s pool; ∏ failed to clear the shallow end.
H: Open and Obvious Danger Doctrine
(1) Presumes ∏ is exercising reasonable care for his own safety.
(2) Δ has no duty to warn about dangerous conditions if the condition is so blatantly
obvious for an ordinary intelligent ∏.

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III. FIREFIGHTER’S RULE
(1) No recovery for injuries within scope of occupation
(2) If risks incurred and injury caused are outside of scope not inherent to job, FF excluded

PINTER v. AMERICAN FAMILY MUTUAL INS. CO.

F: ∏ was a firefighter who got an inguinal hernia while holding a woman at the scene of a car
accident. ∏ sues peep that caused woman’s accident.
H: Professional Rescuers, who are specially trained and employed to conduct rescue
operations in dangerous emergencies, cannot recover for damages resulting from
such rescues.
Assumption of Risk – must be totally and extremely unforeseeable to ignore rule.

IV. REASONABLE CARE FOR LANDOWNERS

(1) Abolishes above laid out categories
(2) Duty to warn all peeps of dangers that landowner can reasonably foresee and duty to
exercise reasonable care under the circumstances
(3) Status of peep may still be a factor in the duty the landowner owes under the
circumstances

ROWLAND v. CHRISTIAN
F: ∏, social guest of Δ’s, used bathroom in Δ’s house. Δ failed to warn of cracked faucet
handle.
H: Categories abolished; Duties now based on basic law of negligence.

SCURTI v. CITY OF NEW YORK

F: 14 year old kid is electrocuted in railroad yard after getting in through hole in fence.
H: Negligence depends on landowner’s care compared to a reasonable care standard.

V. RECREATIONAL USE
(1) Limits landowner’s duty for peeps using their land for recreational uses.
(2) Must warn of known dangers.

IV. LESSORS
(1) Lessor has duty of ordinary care in maintenance of property.
(2) Additional duty for the public areas (common areas).
(3) Pre-existing Defect – Landlord liable until tenant learns of defect; but if not known to
tenant, landlord has duty to tell of defect.

PAGELSDORF v. SAFECO INSURANCE CO. OF AMERICA

F: ∏ falls from dry rotted balcony while helping friends move out.
H: Landlord is generally not liable for defects of property, EXCEPTIONS:
(1) Dangerous condition is one landlord was contracted to repair
(2) Landlord knew of defect and tried to conceal it
(3) Premises is leased for public use
(4) Premises is retained in landlord’s control
(5) Landlord negligently repaired the defect

DUTIES FOR MEDICAL & OTHER PROFESSIONALS

I. DUTIES
(1) Medical and other professionals are held to a standard as a reasonable prudent person
within their field.
(2) If standard of field and specialist standards differ – peep is held to standard of specialist.

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(3) Non-Medical Practitioners (i.e. chiropractic, homeopathic) – held to a standard of the
peeps in their practice. This creates a fine line b/t freedom of religion when the issues are
raised concerning the Christian Scientist decisions.

WALSKI v. TIESENGA
F: Δ removed ∏’s thyroid and ended up (oops) paralyzing ∏’s vocal cords.
H: Medical Malpractice
(1) ∏ must establish standard of care through expert testimony (unless ordinary
intelligence could infer negligence).
(2) ∏ must prove that the doctor was unskilled or negligent from standard of care.
(3) ∏ must prove the injury resulted from the negligence/unskillness.

VERGARA v. DOAN
F: Med Malpractice for negligently delivered baby who now suffers from injuries.
H: Strict Locality Approach – No Longer Rule – standard of care is that which is exercised
by reasonable physicians at the same type of operation and similar locality.

National Standard of Care – reject locality rule and adopt the standard that a
physician must exercise the degree of care, skill, and proficiency exercised by a
reasonably careful, skillful, and prudent physician in the same field and under the same or
similar circumstances.

HIRPA v. IHC HOSPITALS

F: ∏ “code blued”; Δ (doctor) came in the room to help. ∏ died. ∏ was not under Δ’s care.
H: Good Samaritan Rule for Doctors – medical providers acting in good faith and within
the confines of their training when rendering emergency care at the scene of an
emergency cannot be held liable for civil lawsuits resulting from their acts or their
omissions. EXCEPTION: if the peep injured is under the care of the medical provider
before the emergency, there is no GS Rule.

SMITH v. KNOWLES
F: ∏ sues for death of wife and child.
H: (1) ∏’s have burden of proving prima facie case. Therefore, they must have sufficient
evidence. ∏ must also prove the death resulted more likely than not from Δ’s actions.
(2) Must have direct evidence, i.e. do not try to establish the case through cross-
examination of Δ’s witnesses.
(3) Medical Treaties may be admitted into trial; they must be recognized in testimony
as authoritative.

II. RES IPSA LOQUITOR

KELLY v. HARTFORD CASAULTY INSURANCE CO.
F: ∏ was given enema; ∏ felt pinch while tube was in. ∏ had issue with this and subsequent
surgery. ∏ had history of anal diseases.
H: Res Ipsa Loquitor is applicable in Med Malpractice Suits, IF:
(1) Laymen is able to say that the injury would not normally occur without
negligence; or
(2) Expert testimony aids laymen to make the inference of #1.
**CONTROL CONCEPT – if the injury could have been caused by a pre-existing
condition or other reason apart from the Δ; Res Ipsa Loquitor cannot be invoked.

SALATHIEL v. STATE
F: ∏ went in for bile study; came out with issues in nose; surgery and severance of olfactory
nerve resulted.
H: The resulting injury is not an ordinary risk of the procedure.

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YBARRA v. SPANGUARD
F: ∏ was under anesthesia and upon awaking had a pinched nerve in arm. No way to prove
which Δ caused injury and Δs’ are invoking a conspiracy of silence.
H: ∏ may name all peeps in control over him or any instruments used on him; Δ must
then testify to their own actions and possible negligence.
Res Ipsa Loquitor can be a tool to break silence and prove liability.
Any Δ who was negligent and any Δ who allowed negligence to occur and injury to
result are both liable for ∏’s injuries.
Different from Summers (two guys with shotguns that put out eye of Π) b/c that case
dealt with 2 negligent Δs, but no way to prove each Δ’s liability; here, there is no way
to prove who was negligent. In Ybarra, by not speaking up, they are “spoiling” the evidence.

III. INFORMED CONSENT

Must disclose that which an ordinary physician must disclose. Standard is that which is the
medical communities.

HARNISH v. CHILDREN’S HOSPITAL MEDICAL CENTER

F: Underwent surgery to remove tumor from ∏’s neck; ∏ ended up losing all function of her
tongue. This was a risk of the procedure, but doc had not told ∏.
H: Doctors have a duty to disclose to a patient all significant medical information that is
material for the patient to make an intelligent decision on whether to have the
operation. Factors for this breach are:
(1) Resulting injury must arise from the unrevealed risk or no legal consequence, and
(2) ∏ must prove that a s/he AND a reasonable peep would not have underwent the
surgery had the ∏ or reasonable peep known of the risk.

WOOLLEY v. HENDERSON
F: ∏ was injured in a normal risk of procedure incident during back surgery; doc hadn’t
disclosed risk.
H: ∏ must prove the above two factors and that a reasonable medical practitioner would
have disclosed the information. To do this, ∏ must utilize medical testimony to prove
the disclosure standard was in fact breached.

MONTGOMERY v. BAZAZ-SEHGAL
F: Penile Plaque case discussed in battery cases.
H: Negligence – Uninformed consent for operation.
Battery – No consent at all for operation.

ARATO v. AVEDON
F: ∏’s decedents suing doc for giving false hope and not disclosing survival statistics.
H: No duty to disclose information not regarding risks of operation as long as it is not a
standard of practice within the medical community.
As for the issue of disclosure outside of risk of operations, one must look at the
medical community’s standard.

TRUMAN v. THOMAS
F: ∏ had refused pap smears that Δ offered every year; Δ had never told ∏ the risks of not
having pap smears. ∏ died of cervical cancer.
H: Doctors must disclose all material risks which could arise if a patient does not take
tests or treatments.
Fiduciary Trust b/t doctor and patient – this is usually a non-able to consent
peep??????

BROWN v. DIBBELL
F: ∏ underwent double mastectomy and claims uninformed consent.

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H: A doctor can allege contributory negligence on the part of the patient ONLY if patient
failed to disclose necessary information.
No contributory negligence for a patient who did not verify the doctor’s information;
ridiculous idea, should be able to trust the doctor.

IMMUNITIES BY STATUS – FAMILY MEMBERS & CHARITIES

I. FAMILY MEMBERS
(1) Traditional Tort Law – restricted claims within family for 2 fundamental reasons
1. Lawsuits could encourage fraud and collusion.
2. Lawsuits could disrupt family unity.
(2) Law has been modified and jurisdictions vary. Exceptions include intentional torts, auto
accidents, etc.
(3) THREE approaches after the widespread rejection of IMMUNITY
1. There is NO immunity for parents, EXCEPT:
(1) Alleged negligent act involves the exercise of parental authority over child.
(2) Alleged negligent act involves exercise of parental discretion with
(1) provision of food,
(2) provision of clothing,
(3) provision of housing,
(4) medical and dental services, and
(5) other care.
2. Parents are liable under a reasonable person (reasonable parent) standard.
3. Emphasis on Child’s Individuality: Parents have always had the right to determine
how much independence, supervision, and control a child should have; and to best judge
the character and extent of development of their child.

GOLLER v. WHITE
F: Foster kid was not warned by foster dad about danger of riding on drawbar of tractor.
H: There is NO immunity for parents, EXCEPT:
1. Alleged negligent act involves the exercise of parental authority over child.
2. Alleged negligent act involves exercise of parental discretion with (1) provision of
food, (2) provision of clothing, (3) provision of housing, (4) medical and dental
services, and (5) other care.

COMMERCE BANK v. AUGSBURGER

F: Foster kid dies of hypothermia and asphyxia b/c foster parents lock kid in cabinet.
H: Parental discretion in the maintenance of family home, medical treatment, and
child’s supervision is held to have immunity.

II. CHARITIES
Generally immune to liabilities; EXCEPTIONS:
If charity has insurance to cover liabilities;
If charity has money earmarked for liabilities;
If charity charges for services.

IMMUNITIES BY STATUS – GOVERNMENTAL ENTITIES & OFFICERS

I. TRADITIONAL IMMUNITY
Traditionally, the government was immune to all b/c of the Old English maxim “The King Can
Do No Wrong.”

II. FEDERAL TORT CLAIMS ACT

1. Waives Sovereign Immunity
2. Discretionary Decisions Still Have Immunity

III. THE FERES EXCEPTION

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BROOKS v. UNITED STATES
F: Two brothers are on furlough from armed forces; army truck hits them. Gov’t claims
immunity.
H: The gov’t is not granted immunity solely on the basis of the ∏’s status as members of
the armed forces.
The accident was not at an “incident to military duty” and thus no immunity for govt.

FERES v. UNITED STATES

F: Three joined cases (1) ∏ killed in barracks fire, (2) ∏ had a large towel left in his abdomen
after medical military surgery, (3) ∏’s relatives claim gov’t responsible for med malpractice
that resulted in ∏’s death.
H: Gov’t is IMMUNE: all injuries occurred were during active duty and thus “incidents to
military duty”.

IV. DISCRETIONARY OR BASIC POLICY IMMUNITY

LOGE v. UNITED STATES
F: Case regarding polio vaccination.
H: Discretionary Immunity does not extend to gov’t when the statutes and rules
proscribed for the gov’ts regulations and procedures are not followed.
Same Principle for Private Peeps: Private Peeps would be liable if s/he undertook
something safe and negligently failed to maintain it.

MAAS v. UNITED STATES

F: Nuke cleanup team that was exposed to radioactive material and subsequently got
cancer.
H: Government Discretionary Immunity:
(1) Act involves element of judgment or choice;
(2) Judgment involves challenged conduct;
(3) Policy was regarding legislative or judicial act.

Discretionary Duty Defining Standard

If policy is specific as to action, no discretion is excusable.
High to Low Standard – nondiscretionary duty (high standard); discretionary duty (low
standard)

V. IMMUNITIES UNDER STATE LAW

RISS v. CITY OF NEW YORK
F: ∏ threatened by weirdo; called cops after he told her this was her last chance; cops did
nothing; she was attacked.
H: NO liability for claims against police for inaction unless relationship is created.

DE LONG v. COUNTY OF ERIE

F: ∏ hears burglar and calls 911. Operator gives cops wrong address. ∏ dies.
H: A special relationship arouse because Δ accepted action. Thus, no immunity because
the special relationship gave rise to a duty to exercise ordinary care.

BARILLARI v. CITY OF MILWAUKEE

F: ∏ sexually assaulted; reported to cops and told them where abuser would be. Cops failed
to show up or even arrest the man or notify ∏ that he was at large; ∏ killed days later.
H: Police discretionary decisions are immune from liability.

HARRY STOLLER AND CO., INC. v. CITY OF LOWELL

F: Firefighters decided to use hoses in lieu of sprinkler system; resulted in 5 bldgs being
burned.

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H: Here, there was no policy decision involved, therefore, the city can be liable because
it is the decisions are not under immunity.

PLETAN v. GAINES
F: Police-bad guy car chase; bad guy hits and kills kid.
H: OFFICIAL IMMUNITY – a public officer charged by law with duties that call for the
exercise of judgment or discretion is no personally liable for damages UNLESS he has
acted willfully or maliciously. (Operational Discretion)

THOMPSON v. COUNTY OF ALAMEDA

F: Previously detained juvenile threatens to kill a neighborhood child upon release. He does.
H: If state/county knows of foreseeable harm/injury to a specific peep, a duty to that
person is created and state must warn them. Peep/party threatened must be
identifiable. Thus, if not directed to an intended party, the state has no duty to warn.

PUBLIC DUTY DOCTRINE

Have a duty to act, BUT do not act. ∏ must rely on the actions of the dispatcher or cops.

VI. OFFICERS
PENTHOUSE, INC. v. SABA
F: Zoning ordinances were denied capriciously.
H: Even in bad faith or malice, government officials have absolute immunity on
legislative and judicial power.
Executive power is limited to qualified immunity – if peep acts in bad faith or malice,
no immunity. Question of fact – usually practical problem of proof.

K.H. v. MORGAN
F: Kid is shifted around and suffers emotional and sexual abuse in foster care.
H: 1. NO officer liability – (+) cases are brought to attention; (-) abuse of power
2. NO officer liability, but government liability – (+) checks and balances to avoid
abuse of power; (+) ∏ gets compensated.
3. Officer and government liability – (+) might be fewer cases of abuse of power
4. Officer liability, no govt. liability – (+) bad doer is being held accountable; (-)
government won’t supervise as well; caseworkers have no money
5. Immunity to All

VII. STATE AND MUNICIPAL LIABILITY UNDER § 1983

NAVARRO v. BLOCK
F: 911 caller said hubbie is on the way to hurt her; no action. Caller and others are killed.
H: To hold a municipality under § 1983, ∏ must prove that a policy, or established
custom, violates a constitutional right (like discrimination between groups of peeps).

NONFEASANCE
I. NO DUTY TO ACT RULE
NEWTON v. ELLIS
H: Nonfeasance is not a defense when Δ had legal obligation to act. This is a case of
misfeasance. Misfeasance is having the duty to act, but failing to do so (sin of
omission) or acting, but doing so negligently (sin of commission); Nonfeasance is failing
to act.

YANIA v. BIGAN
H: Enticement (through words or actions) does not give rise to liability.
Δ has no duty to rescue ∏ when ∏ is in peril and is therefore not liable.

II. EXCEPTIONS, QUALIFICATIONS, & QUESTIONS

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SOUTH v. NATIONAL RAILROAD PASSENGER CORP.
F: ∏ is injured in train collision. Δ did not aid ∏ (blood on jacket worries).
H: A person who, by innocent or tortuous conduct, knows or should know that his
conduct has caused harm to another has the duty to render assistance to the injured
peep to prevent further harm from occurring; a peep who does not is liable for harm
which occurs after breach of duty.

MALDONADO v. SOUTHERN PACIFIC TRANSPORTATION CO.

F: ∏ tried to catch moving train; ∏ fell under train after Δ’s actions caused train to bump. Δs
rendered no aid and told others not to help also (∏’s arm severed).
H: INSTRUMENTALITY – if you are the instrumentality of harm, duty to aid.
Regardless if ∏ is contributory negligent or if aggravation of injuries is not connected
to original cause of injuries, Δs have a duty to render aid to prevent further injury when
their conduct has harmed ∏ (regardless if conduct was negligent, innocent, or
intentional).

FARWELL v. KEATON
F: ∏ & Δ are out drinking; piss off some girls. Girls’ boys jump them. Δ gets away; finds ∏
beat up under car. Δ places ∏ in car, gives him an icepack and leaves him there; Δ dies.
H: If Δ and ∏ have special relationship, Δ has duty to render ∏ aid as long as it does not
put Δ in peril. Legal point when duty arises – when special relationship (common
enterprise) begins.
Regardless, if no duty exists, a Δ who voluntarily renders aid to another has
voluntarily taken on duty to use reasonable care and not further injure.

KRIEG v. MASSEY
F: ∏ moved into apt. managed by Δ; Δ saw ∏ with gun and placed it on a shelf. She was
going to take him to doctor later, ∏ committed suicide an hour later.
H: Δ was not under a duty to ∏ as Δ was not involved in a special relationship. Had there
been a duty, Δ would not be liable because Δ’s act had not put ∏ in a worse position
had Δ not acted.

DeSHANEY v. WINNEBAGO COUNTY DEPT. OF SOCIAL SERVICES

F: Δs knew ∏ was being abused and did nothing. Δ is severally retarded due to abuse.
H: Child was never under custody and thus there is no state created danger (see below).
State can claim that the child is no worse off than he would have been had the state
done nothing §324(b), thus no detrimental reliance.
However, child may have a claim if he can prove that the state (1) had a special
relationship with him OR (2) had undertaken a duty to render services to him and did
so negligently.
DISSENT MAIN POINT: State should be liable because the state undertook the duty to
aid and in doing so cut-off any other avenues of help to child, thus theoretically, the
state confined the child to the abuse

K.H. v. MORGAN
F: Earlier case regarding baby with gonorrhea and then shifted between abusive foster
homes.
H: STATE CREATED DANGER – if a state has a peep in custody, the state has a duty to
render reasonable safety to that person. This applies to prisoners, children, mentally
ill peeps. Regardless if state actions did not place ∏ in a worse situation had the state
never been involved – the duty arises because the state assumed custody.

SINTHASOMPHONE v. CITY OF MILWAUKEE

F: Dahmer case – 2 women find naked, drugged man. Police come and release him to J.
Dahmer.

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H: Police had a special relationship with, and thus had a duty to, ∏ b/c ∏ was taken into
custody; then the cops proceeded to make him actively worse off than he was by
giving him over to Dahmer. These were actions, not nonfeasance.

DUTY TO PROTECT FROM 3RD PERSONS

I. Δ’S RELATIONSHIP WITH ∏
POSECAI v. WALMART
F: ∏ attacked in sam’s parking lot while walking to car.
H: Different approaches to FORSEEABILITY TEST
1. BALANCING TEST – like carroll towing; burden balanced with foreseeability
and gravity of harm
Burden includes loss of business and bad will which would result.
Greater the burden, lower the duty; Greater the F and G, higher the
duty.
2. SPECIFIC HARM – landowner has no duty to protect against 3rd peeps save
landowner has awareness of specific harm.
3. PRIOR SIMILAR INCIDENTS – foreseeability established by evidence of past
incidents.
4. TOTALITY OF CIRCUMSTANCES – takes many factors into account; relevant
circumstances looked at (most common test).

PARISH v. TRUMAN
F: Δ lived in high crime area and opened the door to his house while ∏ was there. Men come
in and start altercation; shoot ∏ three times.
H: In absence of a special relationship, private peep has no duty to protect one from 3rd
peeps criminal acts.
HOWEVER, if a drunk is driving with a special guest, there is a duty. This is because
of specific knowledge.

HOSEIN v. CHECKER TAXI CO.

F: ∏ leased cab from Δ; cab was not equipped with bullet-proof glass and ∏ was shot.
H: Affirmative duty to protect only held for special relationships (carrier/passenger,
innkeeper/guest, business invitor/invitee, custodian/ward).

MARQUAY v. ENO
F: ∏s sued school district for sexual abuse from their employees. ∏s claim school did know
or should have known.
H: School district will be liable if the ∏s can show that the school officials acted or did
not act which in the scope of their duty and that the inaction/action proximately caused
the ∏’s injuries. Thus, school employees who have supervision duties to the students and
who should have known or did know of abuse will be held liable.

MIRAND v. CITY OF NEW YORK

F: ∏ and sister badly beaten by a 3rd party at school; 3rd party had earlier death threatened
∏. ∏ reported to a teacher, and tried to report to security.
H: A school (thru compulsory attendance) assumes parental custody and control over
children while on the school premises.
Thus, schools have a duty to supervise their students and will be held liable if there is
foreseeable danger, or actual knowledge of danger, and the school does nothing.
Schools take on the duty of a “reasonable” prudent parent in same circumstances.

FAZZOLARI v. PORTLAND SCHOOL DISTRICT

F: ∏ was high school student who was dropped off early at school; beat and raped outside of
school.

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H: School is liable b/c (1) violence was foreseeable, (2) time the ∏ was at school was not
unusual b/c others were present at that time.
A reasonable school must either take precautions to protect students OR warn the
parents of the foreseeable danger (thus transfer duty to parents).

II. Δ’S RELATIONSHP WITH DANGEROUS PERSONS

ROSALES v. STEWART
F: 10yrold shot by 3rd party from the party’s backyard.
H: If a lessor has control over the lessee, he has a duty of care and will be held liable for
the actions of the lessee. Thus, the lessor has a duty to rid the leased premises of dangerous
conditions (as much as he can do legally).

DUDLEY v. OFFENDER AID AND RESTORATION OF RICHMOND

F: 3rd peep was a violent prisoner, not supposed to stay at any halfway houses; somehow
was allowed to stay at private halfway house. Δ, the house, neglected to keep watch over
him. 3rd party raped and killed ∏ who lived near house.
H: Special relationship b/t 3rd party and Δ, thus Δ had duty to identify foreseeable
victims of the 3rd party. Absent special relationship, no duty to control 3rd party
conduct.

COLLEGES
Normally colleges have mucho latitude of liability avoidance, however, if a college requires
an experience, the college can be held liable if it is an unreasonably dangerous situation.

TARASOFF v. REGENTS OF U OF CALIFORNIA

F: 3rd party told therapist (Δ) he would kill ∏; he did.
H: Social Policy overrides the patient/doctor privacy privileges; if a therapist determines
or should have determined that a patient poses a serious threat to himself or another,
the therapist has a duty to protect the identified victim and disclose information to that
victim with enough reasonableness to prevent threatened danger. Texas rejects this
judgment.

DIMARCO v. LYNCH HOMES-CHESTER COUNTY

H: A physician has a duty to the patient and those who are within a foreseeable risk of
injury when dealing with a patient who has been exposed to a
communicable/contagious disease; physicians must give proper advice regarding
potential spread of disease.

WITTHOEFT v. KISKADDON
F: Eye doctor finds patient has 20/80 eyesight, does not warn patient against driving. Patient
hits and kills a bicyclist while driving.
H: No duty when patient is in better position to minimize risk.

WEST AMERICAN INSURANCE CO. v. TURNER

F: Δ lends car to 3rd party who has been drinking for hours. 3rd party crashes.
H: NEGLIGENT ENTRUSTMENT THEORY
Cause of action arises when a car owner knows or should know of a peep’s
incapacity, incompetence, recklessness, or inexperience and car owner allows peep to
use car. Owner must have knowledge that peep is mentally or physically handicapped
to drive car at the time of entrustment.

VINCE v. WILSON
F: Both 3rd parties aunt and the seller of car knew 3rd party was incompetent to drive. Aunt
gave money for car; seller sold car.

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H: Since both Δs knew of incompetence, and both entrusted 3rd party with car, both are
liable.
**Recent debates regarding negligent entrustment in regards to gun sellers; no
general census yet, D.C. shootings may change this.

BRIGANCE v. VELVET DOVE RESTAURANT

F: ∆ is tavern owner who sells minor booze and then minor drives and ∏ is injured.
H: One who sells alcohol to an intoxicated patron can be held liable for injuries caused
by patron’s driving intoxicated. It is foreseeable that the patron will drive and hurt
someone. Duty to exercise reasonable care – may not sell more alcohol to a drunken
peep. ∏ must still prove causation, i.e. illegal sale led to drunkenness and it was proximate
and but-for cause of injuries. **Comme Bohlin payments.
**SOCIAL HOST IMMUNITY in these types of situations.

SNYDER v. AMERICAN ASSOCIATION OF BLOOD BANKS

F: ∏ underwent surgery in 1984 and received a bad batch of HIV blood.
H: The AABB was liable because blood banks and others relied on their assurances, the
AABB had actively invited this reliance, the severity of the risk of the HIV virus, and
the foreseeability of the infection through blood (journal articles, tasks forces, etc.).

EMOTIONAL HARM
I. INTENTIONAL INFLICTION OF EMOTIONAL HARM
GTE SOUTHWEST, INC. v. BRUCE
F: Employer who terrorized employees.
H: Employer Approaches to Emotional Harm
1. Strict approach allows for greater leeway so employer can effectively
manage his employees and business (obviously to an extent).
2. Laxer approach says less leeway because the positions themselves put
employees in a position riped for abuse of power.
An employee must show that the conduct is outside the range of ordinary
employment and that the conduct is extreme and outrageous (this is judged by the severity
and regularity of conduct).
INTENTIONAL INFLICLICTION OF EMOTIONAL DISTRESS ELEMENTS
1. Δ acted intentionally or recklessly.
2. Conduct was extreme or outrageous.
3. Causation – conduct caused distress.
4. Injury – emotional distress was/is severe.

TAYLOR v. METZGER
F: Sheriff and the Jungle Bunny remark.
H: Jury decides whether the conduct is outrageous, extreme and beyond the bounds of
decency (thus it is a question of fact, not law).

WINKLER v. ROCKY MOUNTAIN CONF. OF THE UNITED METHODIST CHURCH

F: ∏ volunteered at church to get over fear of workplaces. Pastor touched her, stroked her,
and whispered sweet nothings to her.
H: A fiduciary duty is based on the undertaking to act primarily for the benefit of
another.
There can be a cause of action for both an intentional tort (battery) and another
intentional tort (emotional distress). The ∏ can claim on both or just one; if the
statute of limitations is out on one, ∏ can still claim on the other.

HOMER v. LONG
F: ∏’s wife was seduced by therapist; now ∏ and Δ are divorced.

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H: A ∏ may be able to recover for intentional infliction of emotional distress when a Δ
inflicts outrageous and extreme conduct on a 3rd party IF:
(1) ∏ is a member of a 3rd party’s immediate family (some jurisdictions allow
fiancées some do not) AND ∏ is present at the time of the conduct. (NO
bodily injury required).
OR
(2) ∏ is anyone present at the time of the conduct AND the ∏ suffers distress that
is a result of a bodily harm.
**INTENT (to inflict emotional distress) MUST STILL BE PRESENT regardless who
the ∏ is.

REID v. PIERCE COUNTY

F: ∏s allege that county employees are keeping autopsy photos for personal use (sick).
H: Requirement of presence is not meant; presence is required to establish proximate
cause, and because it creates the risk of claims years later.

II. Negligent Infliction of Distress / Emotional Harm

ELEMENTS
1. Negligence of Δ
2. Severe Emotional Distress for ∏
3. Outrageous Conduct from Δ

MITCHELL v. ROCHESTER RY. CO.

F: ∏ suffered shock and miscarriage when Δ charged his horses in her direction. ∏ not
physically touched.
H: TRADITIONAL IMPACT RULE
(1) Some sort of physical harm must occur to recover.
(2) The physical injury would show causation through proximate cause of Δ’s
negligence.

MILEY v. LANDRY
F: ∏ had a history of emotional and physical problems. Her accident with the Δ aggravated
her emotional issues.
H: If a Δ’s negligent actions aggravated the ∏’s pre-existing condition, Δ is liable for the
full extent of ∏’s injuries. Like the intentional tort’s THIN SKULL RULE.

GRUBE v. UNION PACIFIC R.R.

F: ∏ was train engineer that saw bodies after train collided with a truck.
H: ZONE OF DANGER RULE
(1) ∏ MUST be in the zone of danger of physical impact.
(2) ∏ MUST suffer immediate apprehension at or near time of danger of ∏’s own
physical harm; this apprehension must cause/contribute to ∏’s
emotional injury.
Example: 2 peeps walking across the street; 1 gets hit by a car and the other
nearly does. The one who was not hit can recover under the zone of
danger rule.

3rd Party Negligent Infliction of Emotional Distress Recovery

DILLON RULE
∏ may recover for distress caused by observing a Δ’s negligent infliction of injury IF:
(1) ∏ and injured party have a CLOSE relationship.
(2) ∏ is located near the scene of the accident.
(3) Resulting shock is due to ∏’s “contemporaneous and sensory” observation of
accident.
**all factors determine foreseeability.

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THING RULE
∏ may recover for distress caused by observing a Δ’s negligent infliction of injury IF:
(1) ∏ and injured party have a CLOSE relationship.
(2) ∏ is located at scene of injury when injury occurs (thus aware injury is being
caused).
(3) ∏ as a result suffers emotional distress.
**there is a grey area where one may still recover if not exactly at the scene (i.e. mom is
walking up the block while child is hit – can still have sensory perception).

BURGESS v. SUPERIOR COURT

F: ∏’s child is severely brain damaged after birth; blame doctor’s negligence.
H: There are 2 classes of which one may recover for neg. emotional distress.
(1) BYSTANDER (Thing and Dillon rules apply) – Δ has no relationship with ∏.
(2) DIRECT VICTIM – claim based on pre-existing relationship which Δ has a duty
to ∏.
(1) Duty is assumed by Δ.
(2) Duty is ascribed by matter of law upon Δ.
(3) Duty arises out of a relationship with ∏.
**thus, in an instance where the distress is inflicted upon the mother from an injury to the
fetus, doctors can be liable because the doctors have a relationship with the mom and fetus.
Social policy, if not doctors would have an incentive to sedate the mothers.

Missing Boucher case

WASHINGTON v. JOHN T. RHINES CO.

F: Dead body cases – shipment to El Paso from Washington D.C. gone bad (literally).
H: Here, the court ruled that the ∏ was not in the zone of danger and thus cannot
recover. However, most courts allow recovery for these type of cases.

HEINER v. MORETUZZO
F: ∏ misdiagnosed twice as having HIV. ∏ actually did not have the disease.
H: There is no neg. infliction of emotional distress claim when the resulting distress is
fear of a non-existent peril. Social policy, a false positive is better than a false negative.
However, had the woman began excruciatingly painful treatment, she may have a
recovery chance.

BOYLES v. KERR
F: ∏ is videotaped by Δ when having sex. Δ shows tape to other peeps (i.e. all of university
of texas and southwest university students).
H: Texas recognizes cause of actions for negligent inflictions of emotional distress only
when the Δ creates risk of physical harm to ∏. Thus, they only allow parasitic claims
of emotional distress; the claims must piggyback on something else.

SACCO v. HIGH COUNTRY INDEPENDENT PRESS, INC.

F: ∏ accused of stealing from former employee.
H: Negligent or intentional infliction of emotional distress requires that ∏’s serious and
severe distress is a FORSEEABLE consequence to Δ’s negligent or intentional act or
omission; the difference in negligent and intentional is the nature and culpability of
Δ’s act or omission.
**The question of whether the distress is severe and serious is a question for the jury.

CAMPER v. MINOR
F: ∏ sues the decedents of a woman who negligently caused an accident between ∏ and
woman. ∏ saw the dead body and now suffers distress.

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H: Severe and serious distress occurs when a reasonable person would be unable to
adequately cope with the mental stress of the situation.
∏ must show through expert medical testimony that ∏ is suffering from sev/ser
distress.

POTTER v. FIRESTONE TIRE AND RUBBER CO.

F: Firestone dumped waste into ∏s drinking water.
H: MORE PROBABLE THAN NOT
(1) Δ’s negligent breach of duty exposes ∏ to a toxic which can cause cancer.
AND
(2) ∏ shows through medical testimony that ∏ has a more probable than not
chance of getting cancer, and ∏ shows through medical testimony that
distress is sev/ser.
EXCEPTION:
IF ∏ can show that Δ’s breach was done in “oppression, fraud, or malice”, the more-
probable-than-not can be excluded and ∏ may still recover even though ∏’s chances
are less-probable-than-not.

HARTWIG v. OREGON TRAIL EYE CLINIC

F: ∏ was cleaning office and was stuck with needles. Told she could be HIV exposed.
H: ACTUAL EXPOSURE rule does not apply for HIV potential exposures because of
medical and social policy that one who may have been exposed act as one who has
been exposed until peep is found HIV negative.
THUS, ∏ must show the following to recover:
(1) Identity of peep who the medical instrument was used on is unknown.
(2) There is no way to prove or disprove that the suspected blood, tissue, or
fluid is HIV negative or positive.
(3) The contact was through a medical or scientific acknowledged way of
exposure.

LOSS OF CONSORTIUM CLAIMS

Historically, the loss of consortium was for masters and servants as a loss of services. Thus,
employers and husbands could recover. Today seen more as a loss of sexual relations; now
husbands and wives may recover. However, most states have seriously limited or done away
with the claim altogether, thus allowing the claim only as a type of damage, not as an
individual claim itself. In the states where this is still a valid claim, claims for adult children
are usually not allowed, and claims for little children may be. Additionally, most states
refuse to allow the claim for unmarried co-habitants (hetero or homosexual). Some states,
those who allow same-sex marriage, will allow the recovery for the spouse; however, those
who do not recognize the marriage will not. Thus if there is a legally recognized marriage,
those spouses will be allowed in the states where the loss of consortium independent cause
of action still exists. There is no claim in any states for the loss of consortium of an animal
(the animal is a chattel).

PRENATAL HARMS
I. PRENATAL AND PRECONCEPTION INJURY
*Traditionally, there was no recovery for injury to a fetus.
*Now, there is usually recovery for an injury fetus that is viable at time of injury and that is
born-alive or stillborn.
*There is generally recovery for an injured fetus that was non-viable at time of injury if the
fetus is born alive.
*There is generally no recovery for a fetus injured before viability and stillborn.

Maternal Care while in Womb

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Generally there is a dividing line against maternal outrageous legal and illegal acts. Thus, a
mother who refuses pre-natal treatment, drinks like a fish, and smokes (cigarettes) is not
going to be held liable for fetal injuries (mother’s right to privacy). But, a mother who
smokes weed and snorts cocaine can be held liable (duty to child).

RENSLOW v. MENNONITE HOSPITAL p604

F: ∏’s mom had been given a bad blood transfusion. Years later she is pregnant and finds
out that her blood is sensitized b/c of transfusion; child has jaundice and hyper something.
H: A duty of care may be owed to one who is foreseeable EVEN IF that one is unknown
or remote in the time or place.

ALBALA v. CITY OF NEW YORK

F: ∏ had abortion and uterus is perforated; ∏ has child years later. Child suffers brain
damage due to faulty uterus.
H: This case is less foreseeable than Renslow – remoteness would cause staggering
implications in liability
Pre-natal injuries recognized when there are 2 identifiable beings within the zone of
danger.
This type of liability would encourage defensive medicine. Hence, doctors would be
scared to try new treatments because the treatments may have implications in future
generations.

II. WRONGFUL LIFE, BIRTH, AND CONCEPTION

GRECO v. UNITED STATES
F: ∏ claims doctors neglected to diagnose physical defects of fetus and tell the mum of
these defects; ∏ claims she would have aborted had she known.
H: No Wrongful Life Claims – forces jury to decide whether baby is better off never being
in existence. These claims also bar recovery for cases where peeps have signed no
resecitation clauses yet someone does rescitate them and they become a vegetable.
Wrongful Birth Claims – $ damages for caring for “defective” baby. This can be show
causally through but-for “but-for malpractice, I would have aborted.”
Wrongful Conception Claims – $ for damages of pregnancy; additionally, damages for
raising “defective” child (Cost of Raising Healthy Child – Cost of Raising Defective
Child).
No Loss of Service/Consortium/Etc. – mom says she would have aborted so no cause
of action for these claims.

WILSON v. KUENZI
F: ∏ birthed a child with down syndrome; doctor failed to tell mum of risk and tell mum
about genetic testing. ∏ claims she would have aborted had she known.
H: NO wrongful birth actions in that it is too hard to judge whether a mother is telling
the truth about but-for…abortion or if the mother is just pursuing a financial desire. No
way to verify testimony.

DEATH
SMITH v. WHITAKER
F: Δ was using a known defective truck when the brakes went out and killed the ∏’s
descendent.
H: Wrongful Death Cause of Action
1. Brought by descendant’s family.
2. Damages are in the form of monetary damages for monetary support; thus,
the family recovers what the descendant would have contributed to the
family had they still been living. Also compensate for any medical or
hospital bills and funeral cost.
3. NO punitive damages allowed.

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 Survival Cause of Action
1. Brought by descendant’s estate.
2. Bring any actions descendant would have been able to bring had they not
died.
3. Damages are for any pain and suffering the descendant went through before
death (must be provable by some evidence). Thus, no p and s damages if the
descendant died on impact.
4. However, regardless if there are or are not p and s damages, a survival action
may recover punitive damages against the Δ (obviously only if punitive damages
are warranted). Policy that Δ should not escape aggravated conduct just
because peep died.

KLOSSNER v. SAN JUAN COUNTY

F: Mother, descendant’s original kids, and descendant’s step-children bring wrongful death
cause of action.
H: The statute states “child or children” the court interprets the language strictly and
states that there is no recovery for step-children in the wrongful death statute.
GENERALLY, this has been abolished and illegitimate and legitimate children may
recover (was a violation of equal protection). However, parents of illegitimate
children, usually only the fathers, cannot recover for the death of an illegitimate child.

VICARIOUS LIABILITY
WHEN FAULT OF TORTFEASOR ISN’T A NECESSARY ELEMENT FOR LIABILITY
I. RESPONDENT SUPERIOR AND SCOPE OF EMPLOYMENT
POLICY REASONING:
1. Prevent Future Harms.
2. Assure the victim’s compensation.
3. Spread the loss through the enterprise equitably.

RIVIELLO v. WALDRON
F: Employee was flinging around a knife in the restaurant and hit a customer in the eye.
H: RESPONDENT SUPERIOR – Owner of restaurant is liable.
Test of liability rest on whether the act occurred while the employee was doing the
employer’s work. Master/Servant relationship.

FRUIT v. SCHREINER
F: Fruit on business trip; trip included socializing. Fruit went to a bar a 2 am to find some
peeps, they were not there. On the way back to the hotel he was involved in an accident.
H: RS is present – Fruit was acting to derive a benefit to his employer.

HINMAN v. WESTINGHOUSE ELECTRIC CO.

F: Employee was an elevator contractor’s helper. The company he worked for did not require
him to come into the office, rather he was sent to job sites. Paid for travel time and cost.
H: COMING AND GOING RULE
Generally, an employer will not be held liable for the actions of his employees when
they are coming from or going to work, i.e. commuting.
EXCEPTIONS: the trip involves incidental benefit to the employer or the trip
involves benefits to the employee and employer (either way, benefit to
employer).
**ici, the employer made the economic decision to pay for the employees travel time
and mileage, thus the liability is extended.

FAUL v. JELCO, INC.

F: Construction worker was living at employer’s trailer. Left to go home for the weekend, on
the way back to work on Monday morning, he was involved in an accident.

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H: 2 MORE EXCEPTIONS TO COMING AND GOING RULE
1. Special Hazards
2. Dual Purpose – employee performs a service during his commute that the
employer would have had to send another employee to do had
the commuting employee not done the service.

EDGEWATER MOTELS, INC. v. GATZKE

F: Manager burns hotel down while on a business trip.
H: An employer is liable for an employee when the employee is engaged in deriving a
benefit to the employer and temporary acts of personal comfort (smoking, eating) do
not disengage liability, as long as the employee is still within the scope of business.
Generally, an employer will not be vicariously liable for punitive damages.

LISA M. v. HENRY MAYO NEWHALL MEMORIAL HOSPITAL

F: 19 yr old pregnant girl sexually assaulted by hospital technician.
H: An employer will not be held liable for an intentional tort if it is not caused by the
employment (i.e. attributable to the work related events or conditions); seems to rest
on the idea of foreseeability. If something is totally unusual and out of left field, probably
not going to be held liable. However, if it is something that is known to possibly
occur, the employer will be liable.

RODEBUSH v. OKLAHOMA NURSING HOMES, LTD.

F: Intoxicated nurses’ aid slaps Alzheimer’s patient at elderly home.
H: Generally, an employer is not liable for an employee’s assault.
EXCEPTIONS:
1. Servant is engaged in Master’s business.
2. Conduct was fairly/naturally incident to Master’s business.
3. Conduct arose from an impulse which is incident to or naturally grows from
attempts to perform master’s business.

FAHRENDORFF v. NORTH HOMES, INC.

F: ∏ was in a group home; employee was the only one on night duty and he made sexual
advances to her.
H: Foreseeable that the situation could occur.

VOLUNTEERS
Are employer’s vicariously liable for volunteers?
IF employer has control over the volunteer like employer would have over an employee, yes
the employer is vicariously liable. Why? Employers are deriving benefit from the volunteer
such that there is no salary paid and the business is getting work done. Thus, the employers
should carry higher insurance to cover their volunteers.

II. EMPLOYERS WHO ARE NOT MASTERS

KASTNER v. TOOMBS
F: ∏’s employer arranged for Δ to furnish a back-ho and operator to dig a ditch. Operator
warned there was danger in ∏’s employer’s instructions; employer shrugged off. ∏ injured.
H: Borrowed Servant Rule
When a servant is loaned to another master, the borrowed master has liability
for the servant, not the loaning master – thus only one master is liable.
Factor of Control Test for Borrowed Servant (Traditional)
Master in control of the situation is liable as he is the one who can best
minimize the risk – generally hard to decide b/c both masters have some
element of control; additionally, courts differ on what factors decide control
Whose Business is Being Done Test for Borrowed Servant

39
 Master who is benefiting from servant’s act is liable – generally hard to
decipher as both masters have some benefit from the work
**Dual Liability** Rule
Liability will be distributed based on contribution and indemnity principles
TODAY… typically these types of situations are now delegated through the parties
contract; i.e. the contract will state which party assumes risk and liability
“Captain of Ship”
Control is such that borrower has total control over situation and servant; the
control is so substantial that the true employer loses his control, thus
also his liability (example is doctors control over nurses in operating
rooms)

DISTRICT OF COLUMBIA v. HAMPTON

F: ∏’s son was taken from her and placed in foster care. Son was beaten to death by foster
brother. ∏ sues human services alleging foster mom is an agent and thus hs is liable.
H: Factors to Determine if there is A Relationship (Master/Servant)
1. MOST DETERMINABLE FACTOR: The employer’s right to control the
employee in performance and result of task
Look at actual relationship and the agreements made b/t the parties
2. Selection and Engagement of Servant
3. Wage Payment
4. Discharge Power
5. Whether the work is regular part of employer’s business
**in this situation, hs did not have control over the day-2-day routine at the house
and the court held that there was no relationship

O’BANNER v. McDONALD’S CORP.

F: ∏ slips and falls at franchise restaurant; sues Δ claiming apparent authority.
H: Apparent Agency/Authority Rule
If the injured party relies on the apparent agency and is harmed as a result,
the principal of the agency is vicariously liable; requires the injured party
to show:
1. Principal created the appearance that the agency is part of the
principal
2. Injured party relied on this appearance
3. Harm results
**the court held for McDonalds in that there was a lack of control; Cochran totally
disagrees in that franchises have massive control over their franchisees

BOROUGHS v. JOINER
F: Independent contractors employed by Δ sprayed the Δ’s crops. IC used bad pesticide and
it contaminated ∏’s pond, killed the fish, and lowered his land value.
H: Some duties are inherently non-delegable – thus liability is based on the failure to
exercise reasonable care in light of the activity. Normally viewed as acts which are
peculiar risks or inherently dangerous. Courts have held this for cases involving
fireworks, pesticides, car maintenance, maintenance of public lands, and other acts.

DEVELOPMENT OF COMMON LAW STRICT LIABILITY

I. OLD SCHOOL STRICT LIABILITY AND TRESPASSORY TORTS
WEAVER v. WARD
F: ∏ and Δ were in military; Δ discharged musket; accidentally hit ∏.
H: Trespass occurred – there is no need for fault, just direct harm; the only defense to
this was if the injured party had caused the accident, i.e. ran in front of musket

BROWN v. KENDALL – signals end of strict liability

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F: Δ was separating a dog fight with a big stick; ∏ was behind him and was struck in the eye
when Δ attempted to strike dogs. Pure accident.
H: ∏ must now prove fault OR negligence for a prima facie case

II. STRICT LIABILITY AFTER BROWN

TRESPASSING ANIMALS
Trespassing animals would be liable for any damages; Strict Liability with some exceptions…
1. Type of animal – s.l. with sheeps, goats, etc.; no s.l. with dogs, cats, etc.
2. Texas exception – reprise later in chapter

BAMFORD v. TURNLEY
F: Δ made brick kilns on his land and produced vapors, smoke fumes, stenches, and stinks
which annoyed ∏ (neighbor) and caused family and servants to fall ill.
H: Nuisance Cases
1. Nuisance is not for public benefit
2. Conduct was malicious or wanton
3. Conduct was nuisance to ∏’s habitation – the conduct interfered with
the ∏’s use and enjoyment of land; additional factor: the nuisance
resulted in loss of property value

RYLANDS v. FLETCHER
F: Δ’s operated a mill and contracted to have a pond built to store water. The pond flooded
underground mining shafts. This caused ∏’s mine to be flooded.
H: Δ is liable if the Δ brings/accumulates anything, which if it escaped, would naturally
cause damage to his neighbor. Δ does this at his own peril and will be liable if
damage results
Societal Benefit will be taken into consideration, i.e. is Δ’s conduct benefiting society
Best Question to ask: WHO is in the BEST position to minimize the risk??

TOMALEN v. MARRIOT CORP.

F: Hotel hosted a troupe of actors for a murder mystery weekend; ∏ was injured when one
actor became engulfed in flames after a botched fire-eating trick and another actor,
attempting to aid, knocked over can of lighter fluid. ∏ was burned (sitting near stage).
H: No strict liability b/c there was no escape of a dangerous instrumentality from
Marriott’s property.

III. STRICT LIABILITY TODAY

ABNORMAL RISKS
1. The existence of a high degree of risk of harm
2. The likelihood that the harm that results from the activity will be great
3. The inability to eliminate the risk by using reasonable care
4. The extent to which the activity is not a matter of common usage
5. The activity’s inappropriateness to the place where it is carried out
6. The extent to which the activity’s value to the community is outweighed by its
dangerous attribute

Landowner is strictly liable for toxic wastes that escape from property
Strict Liability: blasting, storage of explosives, vibration damages, lateral
support of land
No Strict Liability: Spread of fires

**No Contributory Negligence for Strict Liability

TORT LIABILITY FOR DEFECTIVE PRODUCTS

Old school rule: No privity b/t manufacturer and consumer (no strict liability)

41
Today’s Rule: Idea of Fairness.
Manufacturer is liable b/c the nature of the product is such that it is
reasonably certain to place life and limb in peril when negligently made; it
is then a thing of danger. If the manufacturer is negligent where danger is
reasonably foreseeable, a liability will follow.

MOORMAN MANU. CO. v. NATIONAL TANK CO.

F: Grain tank cracks. ∏ suffers only economic losses.
H: Strict Liability does not apply to pure economic losses. ∏ will have a remedy in K law.

II. ESTABLISHING A PRIMA FACIE CASE

MANUFACTURING DEFECTS
LEE v. COOKSTON COCA-COLA BOTTLING CO.
F: Coke bottle explosion.
H: Defect may be inferred from circumstantial evidence; if the evidence shows that a
defect is more likely than not the cause for the harm, there will be strict liability. RIL
doctrine applies here.

MEXICALI ROSE v. SUPERIOR COURT

F: Chicken bone in enchilada.
H: No strict liability b/c it is inherent in the product; ∏ still has negligence in food
preparation claim. ∏ assumes home-style error when purchasing home-style product.

JACKSON v. NESTLE-BEICH INC.

F: Pecan shell in candy bar.
H: Consumer Expectation Test – would a reasonable consumer expect the product to
contain the pecan shell? No, then strict liability.

DESIGN DEFECTS
LEICHTAMER v. AMERICAN MOTORS CORP.
F: Roll-bar enhances ∏s injuries when ∏s where in an accident.
H: Consumer Expectation Test – normal reasonable consumers would expect the
product to perform reasonably well in a foreseeable activity
Expectation Test is set with the price of the product – i.e. Volvo expectations
will differ from pinto expectations
Punitive damages are allowable when the Δ has held the product out to be good for a
type of use when the Δ knows or should know that the product has not been tested for
that type of use

KNITZ v. MINSTER MACHING CO.

F: Activated machine w/ foot pedal while ∏’s hand was in the press, lost her fingers.
H: Product Design is Defective IF:
1. Fails Consumer Expectation Test
OR
2. Risk-Utility Test – The Benefits of the Design are less than the Risk
Inherent in such Design (like Carroll Towing). Is B < or > the R?
**Still must prove causation here!
Factors: Likelihood of Injury
Gravity of Danger posed
Mechanic and Economic Foreseeability of
Improved Design
**∏ chooses which test the suit will use by asserting his claim and the proof the ∏
introduces.

WILSON v. PIPER AIRCRAFT CORP.

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F: Suit on carburetor in an airplane freezing up. ∏ argues there should have been a fuel
injection.
H: For Risk-Utility analysis, the ∏ must show there is an alternative design that would
have been safer in the same situation – BUT, ∏ must also show that the design is
Reasonable and Practicable, i.e. more than just technically possible, must be economically
and operationally feasible.

McCARTHY v. OLIN CORP.

F: 3rd party shoots 25 peeps with Δ’s bullets.
H: 1. The “unreasonable danger” was not created by the product’s defect, the
“unreasonable danger” arose from the product’s intended
function – thus no liability.
2. No risk utility b/c risk is in the product’s intended function, not design.
3. No duty from the manufacturer to control the distribution of potentially
dangerous products – there is no special relationship b/t manufacturer and
consumer (?)

Firearms
Design defect theory has been widely rejected.

Smokes
∏’s typically lose design defect cases; thrust of settlements were more along the lines of
marketing and advertising.

Drugs
Design defects are rarely, if ever, imposed – BAD social policy, peeps would have to trash
medicines b/c of potential side effects.

Negligence in Marketing and Advertising (Upcoming Issue in Judicial System)

Judges are waiting for legislature to change the statutes if they intend to do so; most courts
refuse to impose this claim on Δs

WARNING OR INFORMATION DEFECTS

Learned Intermediaries
Doctors are the learned intermediaries for drug manufactures to patients – the doctors are
supposed to warn their patients of risks. If the drug manufacturer markets directly to the
consumers, there is a duty to the drug manufacturer to warn of the risks. Pharmacists are
under a professional duty to warn, but there is rarely, if ever, a legal duty to warn the
customer.

Open and Obvious Dangers

Is there a duty to warn for O&O dangers?
1. Knowlton’s theory: Whether the danger was sufficiently clear to warrant no
warning? This is a question of fact for the jury to deliberate on.
2. NO, where there is a O&O danger, the duty to warn is discharged.
3. If ∏ is aware of O&O, assumption of risk defense may arise.

2 Types of Warning Messages

1. Warning states that an activity/product is dangerous. i.e. “Machine is Dangerous”
2. Warning states that there are alternative uses/ways for a peep to use the
product/activity that are less dangerous. i.e. “Safety Guard Should be on the Machine
While in Use”

**Products must provide adequate warnings – where the warning is hidden in a

7pgsmallprint pamphlet, the manufacturer may be liable for inadequate warnings. (Carruth)

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COMSTOCK v. GENERAL MOTORS
F: 1953 Buicks’ brakes are bad. General motors knew this, but failed to warn peeps who had
already bought the car.
H: Generally, there is no post-sale duty on the manufacturer. However, if a
manufacturer learns of a latent defect in the product which existed at the point of sale and
is hazardous to life, the manufacturer has a duty to “give prompt warning”. This defect
must be discovered shortly after product is put on the market – thus, the 1960s
machine which was technically adequate for its time CANNOT be held liable in 1989
when the machine injures someone, even if dangers where discovered in the 1970s (No
recovery for knowledge gained way later of how to avoid injury).

BITTNER v. AMERICAN HONDA MOTOR CO.

F: 3-wheeler turned over.
H: Just because there is a similarity in products’ purpose does not mean there is any
similarity in the products design

TURPIN v. PHARMASUTICLES
F: Morning sickness pills allegedly caused birth defects.
H: Judges must review scientific expert testimony before allowing it to go to the jury.
Rational: Possible fraud, possible jury confusion, scientific opinion must be
based on reasonable scientific measures (confidence interval and confidence level).

BOWLING v. HEIL CO.

F: ∏ killed while looking under a dump truck hoist; hoist fell.
H: Traditional Rule
NO comparative or contributory fault defenses are allowed in strict liability
cases
Rational: bases of strict liability focuses on the product, therefore the
consumer’s conduct is not a factor.
Assumption of Risk Defenses are allowed. AssuRisk will bar all Δ’s liability.
Some Jurisdictions reject the traditional rule and apply comparative or contributory
negligence to strict liability cases.
Sidebar: failure to wear seatbelts does not effect strict liability (in a jx that follows Bowling).

HUGHES v. MAGIC CHEF

H: Misuse is not a defense. Unforeseeable misuse which causes harm does not lead to
liability b/c the product is not defective if use was unforeseeable. Foreseeable Misuse
does impose liability because manufacturer must precaution against Foreseeable Misuse.

∏ must show that the product became unreasonably dangerous while ∏ was using
the product in a reasonably foreseeable way; therefore, ∏ must allege he was not
misusing the product.

REID v. SPADONE MACHINE

F: Guillotine machine chops fingers.
H: Δ in a strict liability case MAY have a 3rd party superseding act defense IF the Δ can
prove that the 3rd party’s negligent/misuse act was NOT foreseeable. If the 3rd party’s
act was foreseeable, no superseding defense.

Foreseeable Misuse – rises to product liability

Unforeseeable Misuse – no duty; proximate cause issues because of foreseeability
issues; product is not defective

VAUGHN v. NISSAN

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F: ∏ suffers from asthma due to boiling battery fluid fumes.
H: The ordinary consumer test is only to test the product’s defectiveness.
The ordinary consumer test is not for damages or injuries; thus, a ∏ may recover for
injuries which the Δ’s product caused even if ∏’s injuries were not “normal” (kind of
like thin skull rule).

Shifting Responsibility
A Δ may shift the responsibility to, for instance, an employer who “Substantially Modifies”
Δ’s product.

Well-Known Dangers
If well-known danger, no duty, no liability. Thus, alcoholics can not sue miller lite for causing
their alcoholism.

Disclaimers
New product disclaimers do not count to exclude liability.
Old, i.e. used, product disclaimers do exclude liability.

Federal Issues
If the federal government through statutes, over-regulation, congressional acts set product
standards, the states are preempted – exceptions may be provided.

Military Contract Defense – if the manufacturer was following government specifications,

and the government approved specs, and specs are precise, there is no product liability for
defects. Rational is that the military contract prices would rise if liability was imposed.
(Boyle)

COMMUNICATION OF PERSONALLY HARMFUL IMPRESSIONS TO OTHERS

I. DEFAMATION – LIBEL AND SLANDER
The Common Law Defamation Rules
CASSIDY v. DAILY MIRROR NEWSPAPERS, LTD.
H: Defamation is an INJURY TO A REPUTATION – is measured by the effect on others
esteem of you, i.e. “viewed in the eyes/hearts/souls of other peeps”

Libel
Written Defamation
Media Publications (radio, tv, newspapers, etc.)

**Knowledge/Communication must be made to a 3rd party, i.e. Δ slams ∏ in a memo to ∏ --

no libel defamation b/c no 3rd party knew of it

**Defamation is INTENTIONAL – even if no intention to defame, there is an intent to say or

publish the remark. No intent needed to cause injury, just intent in the act.

Defamatory Meaning
Must prove that words had a defamatory meaning – Context of words is very important. Any
ambiguity is a question for the jury.

“Single Publication Rule”

Example: a book is published and sells 1K copies; ∏ can only recover one time, not 1K times.

Website Publications
Statute of Limitations begins when originally published (though obviously discovery rule may
apply). Minority of jurisdictions hold that the statute of limitations starts anew every time
website is accessed.

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Damages
Traditional Rule
Libel damages are presumed and some slander damages are presumed (libel per se
and slander per se).
Slander per se: Accusation of Serious Crime
Accusation of Sexual Misconduct (really only for women)
Accusation of Loathsome Disease (AIDS not so much
now)
Accusation of traits or conduct incompatible with ∏’s
trade, business, profession
Other Slander damages must be proven.

DEFENSES, i.e. Privileges

TRUTH
∏ must prove that the statement is false

OFFICIAL PRIVLEGE
Judicial and Legislative officers have privilege within their official duties. Executive officers
have qualified privilege.

PRIVLEGE TO COMMUNICATE ONE’S OWN INTEREST

Self-Defense: I didn’t do it, he did.
Protection of Loved Ones: Don’t trust him, he is an ass.
Sharing Important Information: I fired him b/c he sold crack behind the bar.
*Privilege is destroyed when speaker publishes excessively, publishes maliciously, or
publishes for an improper purpose.

PRIVLEGE TO REPORT A CRIME TO APPROPRIATE PEEPS

Lost if malicious or grossly negligent.

FAIR COMMENT
Accurately stated facts concerning a matter of public concern are privileged – limited to the
accurately stated facts.

The Constitutional Constraints of Free Speech

NEW YORK TIMES CO. v. SULLIVAN
F: Suit for NYT ad which inferred that Alabama cops were racist.
H: ∏ must prove the following for Libel vs. Public Official
1. False Statement
2. Δ made statement with actual malice – malice or reckless disregard
3. Statement had defamatory content
4. Statement refers to ∏
**Erroneous statements alone will not be libel – must be totally reckless. (Public
Policy)

Fundamental American Right to have unhindered discourse regarding

public officials.
– Public officials have put themselves in the limelight. Additionally, normally
private peeps may be public figures if they put themselves out for a
position, candidacy, etc. (i.e. someone who runs for politics).

GERTZ v. ROBERT WELCH, INC.

F: Lawyer accused of being communist and part of a conspiracy theory.
H: Removes Sullivan malice requirement for Private peeps.

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 ∏ Must Show:
1. Fault – States differ floor is negligence, ceiling is Sullivan standard
2. Damages

DUN & BRADSTREET, INC. v. GREENMOSS BUILDERS, INC.

F: Misprinted credit report.
H: Private peep in private concern – can recover actual and punitive damages.

PEEP? CONCERN? ∏ MUST SHOW:

Public (sullivan) Public ACTUAL MALICE/RECKLESS DISREGARD
Private (gertz) Public FAULT & DAMAGES
Private (dun) Private FAULT (no damages needed to be proved)
**Spectrum for Private Peeps – can fall between negligence and malice (state’s choice)
**Public “Figures” are treated pretty much like Public Officials.

II. MALICIOUS PROSECTION

Malicious Prosecution
1. Must be a Prosecution
2. Δ Must Have Instigated the Prosecution
3. Δ Must Have Had Actual Malice
4. Δ Acted w/out Probable Cause
5. Suit is Terminated in Favor of the ∏
Not a Trespassory Tort like False Imprisonment – rather an Indirect Personal Interference.
Very rarely would a MP suit be against a private citizen, usually against police peeps – even
if complaint is made by a citizen, the police have the duty to investigate

Improper Civil Litigation

FRIEDMAN v. DOZORC
F: ∏ (doctor) sues lawyer who filed a frivolous claim against him.
H: Lawyers have no duty to adversary parties – a lawyer will not be liable for filing a suit
for his client; but, he may face Rule 11 sanctions.

III. ABUSES OF PROCESS

1. Misuse of Legal System
2. Misuse is for an Ulterior or Improper Purpose
**Not Plea Bargains**
Must be either personal gain or a personal benefit.
Example: I’ll drop the charges if you have sex with me, etc.

IV. PRIVACY
1. Intrusive Invasions
intrusions into someone’s seclusion; i.e. listing in w/ electronic devises
2. Commercial Appropriations
takes your likeliness/persona for commercial purposes
3. False Light
information is true, so not slander or libelous, but paints the person in a false
light, i.e. saying you stand for a political action that you do not
4. Public Revelation of Private Facts
usually deals with sexual matters (Pamela Anderson &Tommy Sex Tapes)

Why sue under privacy in lieu of defamation?

Libel and Slander – provably false statement/implication
Privacy – true statement; provably false implication

TAYLOR v. KTVB, INC.

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F: TV station aired naked man being arrested.
H: Liability for Disclosure of Private Facts (Public Revelation)
Δ will not be liable if it is an occurrence of Public Interest (i.e. News) UNLESS,
the ∏ can prove malice (i.e. purposeful embarrassment or reckless
disregard of disclosure’s embarrassment)

CAPE PUBLICATIONS, INC. v. BRIDGES

F: Photographer caught naked women being rescued by cops from estranged ex-hubbie.
H: The standard of a person’s right to privacy is based on a reasonable person standard.

Interference with Family Relationships

Some states still recognize torts like alienation of affection. Courts are reluctant to do so
though because it is stepping into a family private matter.

MISREPRESENTATION AND OTHER MISDEALINGS

I. THEORIES OF LIABILITY AND CONSEQUENCES
ELEMENTS OF MISREPRESENTATION:
1. Material Fact Communicated from the Δ to the ∏.
2. Economic Loss to ∏.
3. Scienter Required, i.e. knowing or reckless act.
4. ∏ Relies on the Misrepresentation.

ULTRAMARES CORP. v. TOUCHE, NIVEN & CO.

F: Public acct. certified a company’s audit. ∏ lent money to company based on this
certification; company collapsed, ∏ lost money. Δ (PA) knew ∏ would rely on the
certification.
H: Negligence alone does not constitute misrepresentation. If one has a negligence
claim, liability only exists b/t the contracting parties; policy says it would be too widespread
if different.

GAUERKE v. ROZGA
H: IF Δ is reckless in stating a material fact (i.e. Δ doesn’t know about the fact, but holds
himself as knowing) then Δ is liable. Thus, not knowing and purporting yourself as
knowing, is a misrepresentation.

Reliance and Related Doctrines

PINNACLE PEAK DEVELOPERS v. TRW INVESTMENT CORP.
H: Misrepresentation may be very hard to prove b/c ∏ must prove the intent of Δ’s mind.

II. DUTY TO DISCLOSE

Traditional Rule: Δ actively conceals a defect – Misrepresentation.
Contemporary Rule: Δ actively conceals a defect – Misrepresentation.
Δ does not disclose, nor does seller hide a defect – Misrepresentation.

Not Misrep.: Δ has no knowledge of defect and nor should have known of defect.

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