Intentional Torts: battery, assault, false imprisonment, IIED

Intentional Torts =
Volitional act +
Intent (purpose or knowledgesubstantial certainty of result, Garratt, even if
unlikely to occur, e.g. throwing rock at far-off person)+
o Transferred intent- 1) A intends a tort on B, but commits a tort on C
OR 2) A intends one tort, but accomplishes another= STILL LIABLE
available in assault, battery and false imprisonment (limited in
IIED)
Causation (conduct of D is substantial factor in bringing about injury)
o must allege fault, as the atty did not do in Van Camp
Liability:
1. Insane NOT excused
2. Children generally NOT excused if P can prove elements, incl intent
a. EXC: not liable in some states where young children (usually <7) are held
to be incapable of intent or tort generally
b. Parents: NOT liable for childrens torts
i. EXC: where statute imposes liability (in most states, but limited to kids
willful/wanton acts and damages capped at low amt)
3. Respondeat superior: employers sometimes liable for employee torts
committed in course of employment. If worker is injured, workers comp
usually covers (except intentional torts, Bruce, unless in furtherance of
company)

Battery
Elements (1-3):
1. Intent to cause
o Purpose OR knowledge (Garratt, boy pulling seat out remanded to
determine of there was knowledge since there was no intent)
o RULE CHOICE: dual intent (majority)- intent to cause a harmful or
offensive contact via a touching vs. single intent (minority)- intent to
touch
o Transferred intent applies (Stoshak, hit teacher), but SOL remains same
(Baska)
o Tortfeasor need not be rational (Polmatier, insane son in law liable for
shooting his father in law)
2. Harmful or offensive contact (would offend a reasonable sense of
personal dignity, RS 19, Turk) contact, or imminent apprehension of such a
contact, AND
o Harmful: Must mention, even if it is self evident
o Offensive contact (no injury necessary)
offends a reasonable sense of personal dignity, (Turk, pulling
nurse towards surgical opening) OR
via prior knowledge, defendant knows plaintiff will be offended
by the contact (Cohen, naked C-section No comment by RS)

Dual vs. Single Intent

i.
Dual: intent to make contact + intent that contact be H/O
(White, no liability on old lady with dementia hitting nurse).
Rationale: more subjective, refocus punishment on those
meaning to harm.
ii.
Single: intent to make contact--which ct determines was H/O
(Wagner, mental patient attack). Rationale: practical
consequences of dual intent unworkable/insufficiently
protective.
3. H/O contact to the s body
a. Including items connected to the s body, such as a plate (Fisher), cane
or anything else you are holding..
b. Victim need not realize H/O contact at time (e.g. asleep)
c. Medical care over objection always = battery (Cohen, naked C-section)
4. Causation- liable for
o Direct contact of (or extension of P, e.g. cane, plate (Fisher)
o Indirect contact- not necessarily touching P (i.e. throwing object at P,
Leichtman, smoke particles blown in your face)
Sufficient if defendant sets in motion a force that brings about
harmful or offensive contact
i.e. Plaintiff falls in hole dug by defendant
5. Actual damages not required; can recover for nominal damages
o

Assault
Elements
1. Intent (knowledge/purpose) to place in reasonable
apprehension OF
2. An imminent battery (H/O touching)
Cullison, trailer visit from Sandys fam

Reasonable based on s knowledge of s apparent ability to cause harm

(e.g. unloaded gun, unless knows it is unloaded, would still cause
reasonable apprehension) OR based on unreasonable fear has knowledge
of.
--Words alone not enough to cause reasonable apprehension unless
accompanied by other action or circumstance (Hands in pockets, Im going
to kill you. Is not enough)
-- Words may negate apprehension (e.g. Id punch you if I werent so nice)
--P must be aware of threatened contact, contrast to battery

Imminent= no significant delay, D has present ability to carry out threat

o threats of future contact insufficient (i.e. beat you up tomorrow not
assault)
o also no assault if D is too far away to do any harm or merely preparing
for future harmful act

Conditional threat:
o Liable if actor gives the other an option to escape the contact by
obedience to a command unless command is one which the actor is
privileged/has a legal right to enforce
EX: Burglar P enters Ds house. D says, If you dont leave,
Ill throw you out. No assault on P b/c D has legal right to
force P to leave.
balls up fist and says I will punch you if you dont give me
your money. This is a battery, even though the could
comply and avoid harm.

Actual damages not required; can recover for nominal damages

False Imprisonment
Elements (1-3):
1) Intent to confine (knowledge or purpose)
2) Act of restraint
a. Physical: Closing and locking a door
b. Threats (if operative on the mind of a reasonable person):
i. Operative: (w/photo of child) If you leave this room, I will kill
your child
ii. Operative: You need to stay here while I search your bag
(security at a store)
iii. Non operative: If you leave this room I will turn you into a
kangaroo.
c. Duty is owed to facilitate movement: Failure to complete a required act
i. If you are driving me and you do not let me out where I was
supposed to go
ii. Airline leaves a handicap passenger onboard and leaves without
summoning a wheelchair
3) Confinement in a bounded area
a. There must be a perimeter fence, but perimeter must be established
i. If there is a reasonable means of escape
1. Is it dangerous, disgusting, humiliating or unknown to the
, it is not a reasonable means of escape.
Physical barrier/force (held within certain limits, not that P is
prevented/excluded from entering certain places, e.g. restaurant)
o Force can be directed at him, member of his immediate family, or his
property

 EX: cannot leave building because has her purse.

By threat of force/duress/invoking legal authority
o Must be plausible threat (reasonable person standard)
o E.g. NO, Hardy, didnt ask to leave/not told she had to stay, vs.
McCann, reasonable people wouldve thought Wal-Mart would use
force/had authority, child not allowed to use restroom.
4) must be aware of confinement OR harmed by it
o E.g.: baby locked in bank vault false imprisonment
o E.g.: sleeping person locked in room, learns later that door was
locked not false imprisonment
5) Damages: not limited to actual compensatory damages, exc. in case of
harm not awareness

6) Similar act not done w/intent to confine is NOT false imprisonment, but
may be negligent/reckless if risk threatened bodily harm (e.g.
accidentally locking grocery employee in cold vault)

Intentional Infliction of Emotional Distress (IIED)

ELEMENTS:
1) intentionally or recklessly
2) By extreme and outrageous conduct (outrageous = exceeds all
bounds of decency tolerated in a civil society)
Patterns that help establish outrageous conduct
o Relationship between the parties (esp abuse of power, emp/ eee,
race, police/civilian)
o is aware of s particular sensitivities and exploits them
o Public rather than private (boss berating someone in front of coworkers)
Also look to severity and regularity of the conduct (GTE v. Bruce,
abusive boss, not Jones, which was offensive but not beyond the bounds
of civil decency)
Mere insult is not sufficient
Ex.: Falsely reporting the injury/ death of a loved one is pretty outrageous
3) Causes severe emotional distress to
a. That is severe, does not necessarily require medical attention
(physical or emotional) or missed work, but those are strong
indicators, if present.
i. Jones: no evidence beyond transient uncomfortableness
demonstrating severe emotional distress
b. Does NOT apply when exercising legal right (e.g. divorce)
c. Limited transferred intent: Third party/bystander IIED (NOT
Long, wife seduced, failed for presence requirement, i.e. Was not
there to witness the abuse)
o P can recover if
the act was intended to be directed at the non-present
actor OR

A) present (and defendant knows that is present

because must be substantially certain he will cause
severe emotional distress to ) AND
B) related to party OR suffers actual bodily harm
Courts reluctant to recognize this tort- high standards
Actual damages are required- nominal damages will not suffice

Affirmative Defenses to Intentional Torts

Protective Privileges based on s conduct
Require:
1. Imminent threat
2. Reasonable belief that threat is genuine

RS 63: Self-Defense by Force NOT Threatening Death/Serious Bodily

Harm:
(1)Actor can use:
a. reasonable force (must be proportional)
b. not intended to inflict death/serious harm
c. to defend against H/O conduct which he reasonably believes
another is about to inflict intentionally upon him (or 3rd party, RS
76, if (1) reasonably believes 3rd party would have self-defense
privilege and (2) Ds intervention is necessary for 3rd partys
protection) (Touchet, words not sufficient threat to satisfy the
use of force)
d. NO duty to retreat (majority)
e. NO need to comply w/command to escape injury
f. NOTE: applies to cover discipline privilege in schools, as long
as shown corporal punishment wasnt unreasonable/excessive
RS 65: Self-Defense by Force Causing D/SBH
(1)Privileged if actor reasonably believes that:
a. Other about to inflict intentional contact/bodily harm AND that
b. He is thereby in peril of death/serious injury which can ONLY be
safely prevented by immediate use of such force.
c. Retaliation must be proportionate to the threat.
a. If someone is about to punch you and you whip out your
revolver NOT proportional.
b. Causing D/SBH never proportionate response to defense of
property
i. Katko style spring gun is illegal because it is not
proportionate.
ii. Brown, farmer who shot away from one boy stealing
to scare him off but struck another was liable since
D/SBI is never justified to protect property
5

Arrest and Detention: RULE CHOICE, up to legislature

Trad. Common Law: prop owner can detain thief at his peril (liable for false
imprisonment if turns out they didnt commit crime). Firm rule
Modern Common law: prop. owner can detain thief so long as:
1. There is reasonable cause, even if they are wrong
a. Such as seeing someone pick something up and not put it down
(Gortarez, cousins believed to have stolen from super-mart)
2. It is in a reasonable manor
a. Gortarez: headlock does not seem reasonable for a .59 cent air
freshener
3. It is for a reasonable amount of time (for questioning or calling the
police)
Raises question but remains silent on whether detaining can include offpremises vicinity. Flex standard
Statutory: e.g. WI statute allowing off-premises chase if reasonableness
requirements are met (Menard, Inc)

Defense of property: NOTE: trumped by necessity (e.g. docking boat)

RS 77: Defense of Possession by REASONABLE Force NOT Threatening

D/SBH okay if:
a. Intrusion isnt privileged or other intentionally/negligently causes
actor to believe its not privileged; AND
b. Actor believes intrusion only preventable by force used, AND
c. Actor has 1st requested other to desist or believes request will be
useless/substantial harm will be done before request can be made.
RS 84:
a.
b.
c.

Use of Mechanical Device NOT Threatening D/SBH if:

Use of device is reasonably necessary to protect from intrusion; and
Use of device reasonable under circumstances, and
Device is one customarily used for such purpose OR reasonable care
is taken to make its use known to intruders.

RS 85: Use of Mechanical Device Threatening D/SBH: Privilege exists only

when ACTOR would have privilege to prevent intrusion by intentional
infliction of such harm if present. Katko (deadly/SBH force by act or device
only ok if intruder threatens w/same, making force
reasonable/proportionate).

Effect of reasonable mistake by varies

o Mistake as to danger- if s mistake is about whether force is
necessary, is protected by reasonable mistake
o Privilege- but if the owners mistake is about whether the intruder has
right to be there, the use of force will not be privileged
Deadly force

May use deadly force only where:

Non-deadly force will not suffice
AND the owner reasonable believes that without deadly force,
death or serious bodily harm will occur
i.e. use of deadly force allowed against a burglar

Consent

1. Express and conduct complies with terms

2. Implied from reasonable person standard and conduct
a. Common custom: If it is the norm it is okay. Playing sports, girl
scouts on the stoop.
b. EXC if person has taken steps to make contrary intention known
(e.g. posting no trespass sign = no RP consent to solicitors)
c. May disadvantage those w/limited cultural/linguistic knowledge
(OBrien, vaccination)
d. Medical consent implied usually in emergency situations where
consent cant be obtained (Miller, resuscitated baby, Miller, drunk
patient)
e. Body language:
3. Substituted consent: may be a jury Q (e.g. Harvey, mother consenting
for adult son under anesthesia)
4. Scope: whats reasonably expected in course of what is agreed to,
(Shoving in basketball, NOT stomping on foot after game)

Does NOT apply when:

(1) Duress (gun to my head; may be jury question, e.g.
student/professor)
(2) Fraud
a. Omission of information: Johnson, STD where knows other
doesnt know
b. Falsely claiming to be a doctor and examining you
(3) Lack of ability to consent (minors, mentally disabled, under
influence, those with no legal independence (such as sex with inmate
in Robins))
(4) Conditional and condition exceeded (e.g. Ashcraft, non-family
blood transfusion, Duncan, non-authorized drug given; BUT Kaplan
says the same treatment can be preformed on a different herniated
disk than permission was granted for)
(5) Policy decision to preclude (Robins, discussion of whether to omit
for inmates toward jailors)
(6) Revoked (must be while D still has time to alter conduct)
Privileges Not Based on Conduct
1. Arrests/searches: officers may enter land to execute
searches/warrants, does not incl privilege to invite media
7

2. Public rights: user of public utilities; public accommodations laws,

privilege to enter land to reclaim ones own goods, and limited
privilege of free speech in shopping malls
3. Necessity
RS 196: Public Necessity: Private party has privilege to enter land in
possession of another if actor reasonably believes it to be necessary to avert
imminent public disaster.
*May involve breaking/entering or reasonable force against possessor if
it appears reasonably necessary
*Does not involve compensating owner, Surocco (fire break in
SanFran); however, when govt authorities acting in official capacity cause
property damage in emergency to mitigate disaster, they may have to
compensate for taking (differs by state), e.g. Wegner (Police policy
distroying house with gunman)
RS 197: Private Necessity: In case of emergency, private actor has:
(1)Privilege to enter land of other if it appears necessary to prevent
serious harm to:
a. Actor or his land/chattels (Ploof)
b. Other or a 3rd party UNLESS knows 3rd party wouldnt want him to
(2)If entry is done for benefit of actor/3rd party, actor liable for any
damage unless entry is caused by tortious conduct/contributory
negligence of possessor.
--Rationale: forcing party in the emergency to pay for their actions
(encouraging them to sacrifice cheaper asset to make efficient choice),
Vincent (saved boat liable for damages to dock.)
Negligence
Generally, imposing on others an unacceptable degree of risk of injury, failure to
take precautions moral blameworthiness
ELEMENTS OF NEGLIGENCE
1) Duty
2) Breach (small n negligence)
3) Factual cause
4) Proximate cause
5) Damages

Institutions of Negligence Practice:

(1) Litigation financethe attorney fee is contingent, usually 25-50%. In large, timeconsuming cases, there must be high pain/suffering or punitive damages to make it worth
atty time.
(2) Liability insurancethough auto insurance may be compulsory, policy limit (sum to
pay for injuries) likely too low to cover most serious injuries.
(3) Role of settlement: few trials, but lawyers must have sense of what could be awarded
to ensure good settlements
8

Duty
Duty to behave like a RPPUTC (to all foreseeable s)

The standard of care remains the same under all circumstances (Stewart,
car blew up while repairing a car)
o The standard of care stays the same, but the level of care
required varies by the circumstance.
***EX: Because there are no special duty rules applicable here,
the general standard of reasonable prudence under the
circumstances applies. Because the activity is so dangerous, the
level of care would likely be quite high. ***
o But if the danger is high, the reasonable person will ordinarily exercise
care greater than if danger is low
o Dangerous instrumentalities: standard remains the same (RPP), but
amt of care so provided changes (Stewart, gas tank blew up)
o Sudden emergency doctrine- in midst of crisis, a RPP may not be
thinking clearly, might do things that one cannot do under normal
circumstances but standard remains the same; can not consider it to
be a sudden emergency if you caused the harm. (Posas, car crash bc
following too closely)
-- Varies by state but most recognize different instruction rarely
appropriate
Reasonable person- objective standard
o When the has lower knowledge than a reasonable person, they are
still held to the RPPUTC standard.
***EX. Because the standard is objective, , even though he is
stupid/ had intellectual disability/ is a novice/ has never
experienced these things before, will be held to the same
standard of care.***
Person with physical disability is held to the standard of a RPP
with the same disability UTC (Shepard, blind person tripped in
the parking lot of a business)
o Yet defendant with knowledge superior to that of the average person to
required to use that knowledge
Dave, the race car driver, must act RPP with the added skill UTC
Daryl, the stupid high school drop-out who knows about a bind
spot in the road, should act like a RPP with that knowledge UTC
o The difference because of knowledge is only relevant if it applies to the
situation
Blind person storing kerosene rage= not relevant for negligence

Particular Standards of Conduct: Exceptions to General Rule (specialized trumps

general)

What Circumstances Count? (constitute a defense/specialized rule)

Counts
Does Not Count
Children
Child doing adult things
Superior skill
Insanity
Physical disabilities
Intoxication
Emergencies
Mental disabilities
Professional duty
Statutory standards
Child standard of care (5-18)- specialized rule
Duty for a child is to exercise the same care as a reasonably careful child of
the same age, intelligence, experience, acting under similar circumstances
o Subjective standard used for children is more pro-defendant than adult
standard, evidence of mental/emotional deficit considered (unlike
adults)
EXC: children are held to adult standards if child engages in adult activity
(Robinson, 13 year old driving snowmobile)
EXC: Some courts say that children of very young age (under 3, RS 10 says 5)
are incapable of negligence (no duty to the world)
EXC: minority approach: where children > 14 = rebuttable presumption in
favor of negligence, children 7-14= rebuttable presumption against capacity,
children < 7 = incapable of negligence

Knowledge and Skills (RS 12):

If actor has knowledge/skills exceeding those of others, they must be taken
into account in determining whether he/she acted as a reasonably careful
person, though instruction remains same (Cervelli, professional trucker, Hill,
tractor operation, drs must report own symptoms properly). If actor is below
avg judgment/knowledge, its generally ignored.
Intoxication NOT an excuse
EXC: sometimes for adult learners who cause harm to teachers
Disability (RS 11):
(a) Conduct of physically disabled actor negligent only if conduct doesnt
conform to that of a reasonably careful person w/ same disability
(NOTE: old age not in and of itself considered a disability).
(b)Conduct during period of sudden incapacitation resulting from physical
illness negligent only if sudden incapacitation was reasonably
foreseeable (e.g. seizure/didnt take meds, foreseeability often a jury
question)
(c) Actors mental/emotional disability not considered
Mental Disabilities- no specialized rule
Held liable for intentional AND negligent torts
Policy reasoning
o Allocates losses between two innocent parties to one who caused the
loss

10

Provides incentive to those responsible for people with disabilities and

interested in their estates to prevent them from causing harm to others
and restrain those who are potentially dangerous
o Removes inducements to fake mental disability
o Avoids administrative problems involved in courts and juries
attempting to identify and assess significance of actors disability- too
difficult to draw line between mental deficiency and variations of
temperament, intellect and emotional balance
o Forces people with disabilities to pay for damage they do if they are to
live in the world
EXC: If someone is mentally disabled, institutionalized, and hurts a
caregiver not liable (Rusk)
o

Insanity- no specialized rule

MAJORITY rule= Mental illness is never a defense. Insane are held to same
standard as everyone else.
MINORITY rule- treat sudden insanity same as sudden physical incapacity
(Breunig (sudden delusion while driving)
Professionals (medical, attorneys, architects)
Must provide the same service as the average professional in the field.
o Custom becomes the standard of care
o Where are the experts from? State by state issue.
Same community as ?
Similar community as ?
No geographic limitations?
Using Statutes to Define Duty: Statutory Standard of Care (RS 14)
Negligence per se: When a safety statute has sufficiently close application to the
facts of the case at hand, an unexcused violation of statute by defendant is
negligence per se and that conclusively establishes that was negligent (breach
and duty of care satisfied (some states: only breach satisfied, Martin, illegal lack of
lights on buggy was not a sign of potential negligence, it IS the negligence); still
need to establish causation and damages).
Used when:
1) is in class of persons that statute protects (not usually gen pop but
sometimes, e.g. person bit by non-quarantined dog whether actually rabid
or not) AND
2) Ps injury is class of risks statute was designed to prevent (e.g. not selling
ammo to someone <21 who commits suicide)
a. [Inferred by cts to allow civil COA when statute itself is silent as to
civil liability on top of public-law penalty, so somewhat
discretionary, OGuin: read protecting health to cover safety of
landfill]
EXC: s violation of statute is excused when:
o Compliance would involved greater risk of harm to the actor or to
others
Swerving into other lane to avoid hitting child
Situation would be judged under a RPPUTC

11

Violation due to impossibility of following law

had a heart attach and drives through intersection
o NOT an excuse that is unaware, careless (Impson, carelessly driving
through intersection) or thinks its unwise
Statute prescribes precise contours of reasonableness
o Rather than, has duty to act like a reasonably prudent person unlike
like circumstances, now, has duty not to sell ammo to anyone under
21 (in this case, only issue is age- if is under 21, is negligent)
Licensing: may or may not be neg per se (e.g. YES furnace permit when
fumes harm someone, NO motorist moving and not having new license yet).
Look to whether regulation represents legislation on how to do something
(usually not met).
o

14: Statutory violations as negligence per se

An actor is negligent w/o excuse if the actor violates as statue established to

prevent the type of accident which occurred against the class the statute was
designed to protect

15: Excused violations

Excused and not negligent if:
1

Violation was reasonable because of actors incapacity, physical disability, or

actors childhood

The actor exercises reasonable care in attempting to comply w/ statute

He neither knows, nor should know of the factual circumstances that render
the stature applicable

Actors violation is due to the confusing way requirements were presented to

the public
a

If a sign or signal would confuse a reasonable motorist, it should not be

negligence per se

Compliance would involve a greater risk of harm to the actor or to others

16: Statutory compliance

Complying with a statute does not preclude a negligence finding

If adoption of a precaution would violate a stature, then an actor can not be

held liable for not applying that precaution.

Alternative Duty Standards

12

Special duty standards

o Land possessors
o Medical and other professionals
o No duty- immunities
o Duty to act affirmatively
o Duty to control third persons

Special Duty of Possessors of Land

NOTE: 50% of states still have these categories
--Some retained ltd trespasser duty but abolished licensee rule (hybrid)
--Others redefined boundaries of categories (e.g. MD bare licensees, like
hunters, treated as discovered trespassers)
50% of states follow Rowland and have substituted a general RPP
duty of care (rationale: old rules out of date, lead to wrong results, too
complicated)
Warnings always satisfy duty
What kind/category of entrant is P?
1) Invitee- person who enters land in response to express/implied invitation
a. Business invitee- on premise for pecuniary benefit of possessor
(customer, employees)
b. Public invitee- on premise held open to general public
i. Two may overlap- i.e. shopping at supermarket
Loses invitation if acting beyond scope/area of permission (Gladon, becomes
trespasser (no owner consent) or licensee (consent))
Duty: to use ordinary care in keeping property reasonably safe for invitee
Duty includes duties owned to licensees (to warn of nonobvious dangerous conditions known to landowner and to use
ordinary care in active operations on property) + duty to make
reasonable inspections to discover dangerous conditions
and make them safe
make them safe = usually warning is sufficient
EXC: open/obvious danger (OSullivan, pool dive)
some cts wait to apply this as CF. Does NOT apply if has
no choice (icy walk) or if likely to be distracted
(McIntosh, EMT delivering patient). Alternatively, some
juris say duty exists but no breach b/c so obvious, making
it a question of whether harm was foreseeable even if
danger is obvious (e.g. construction balcony w/o railing,
bar at top of stairs).
2) Licensee- enters with permission but not for pecuniary benefit of owner, e.g.
social guest, gas reader
Duty: to warn of dangerous condition known to owner that creates
unreasonable risk of harm and licensee unlikely to discover
NO duty to inspect for defects or repair known defects

13

Duty to exercise reasonable care in conduct of active

operations for protection of licensees known to be on property
Incl firefighters/police (policy decision, cant recover for failure to
inspect/repair)
3) Undiscovered Trespasser- no permission
o No obligation to discover and no duty of care owed (Palsgraf
applied to land possessors)
o EXC: there is a duty to refrain from willful/wanton injury
o EXC: must exercise reasonable care for flagrant trespasser who is
imperiled and helpless OR unable to protect themselves

4) Discovered trespasser- must behave with ordinary care

i. May arise b/c of frequent trespass on limited area (know
trespass likely)
1. Reasonable care to make premise safe or warn of dangers
ii. Child trespasser- see below for Attractive Nuisance
Doctrine
Attractive Nuisance Doctrine (majority): May be applied to pools, abandoned
cars, lumber piles, sand bins, etc. Usually applies to children of tender years
(normally under 10, contra new Amtrak case, 17 yr olds!). liable to harm to
trespassing kid if:
(1) knows/has reason to know kids likely to trespass
a. Location: Rural or suburban?
b. knows/has reason to know condition involves unreasonable risk to
kids (pool, swing set)
(2) Kids dont realize risk due to age
(3) fails to take steps which would establish reasonable care to eliminate
danger/protect kids (Stanley, pool-pond)
Undiscovere
d Trespasser

Discovered
or
Anticipated
Trespasser

Licensee
(present w/
permission but no
economic benefit to
land owner)

Activity

No Duty

Ordinary Care

Ordinary Care

Static
Conditio
n

No Duty
(refrain from
willful/reckless
injury)

Limited duty to
protect against
a condition if:
(1) artificial,
(2) highly
dangerous, (3)
concealed and
(4) known to
landowner
Exc: peril

Duty to protect
against a (1)
concealed condition
(2) the existence of
which is known in
advance

14

Invitee
(present for benefit
or person on land
open to general
public)
Must be within scope
of invitation Gladon
(train case)
Ordinary Care
A duty to protect
against a 1.
concealed 2
condition which was
known or knowable
by a reasonable
inspection.
EXC: recreational
use

Duties of Medical and Other Professionals

These rules extend to other professionals, such as architects, lawyers, etc.
Medical Professionals
Standard duty of care in medical malpractice= custom of the
profession, care of reasonably careful/skilled physician of class of drs to which
he belongs (BUT when medical authority divided, no liability if choice of
considerable # of med professionals)
Therefore, always need an expert
o Jury= lay person with no expertise in the area need expert to explain,
testifying to practice standard, not own practice (Walski, if there are
multiple accepted standards, any will be okay)
o Specialists: compare to other drs in specialization, not medicine
generally
o Referrals: often req to refer where standard of care so reqs
o EXC: in obvious cases (i.e. surgeon amputates wrong arm)- no expert
testimony needed
No malpractice w/o preexisting duty to aid: Doctor who attempts to assist but
acts negligently not liable unless there was a preexisting duty to aid (Hirpa,
coded in hospital, Dr. responded but acted negligently and was immune for
lack of duty.)
Alternatives (Locality)
o Strict locality rule: (maintain in some states), which measures Ds
conduct against that of other doctors in the same community. Growing
movement in legislatures to make malpractice suits harder. Issue:
conspiracy of silence.
o Modified locality rule: standard is care exercised by ordinarily
careful physicians at time and in similar localities
o National rule: A physician must exercise that degree of care, skill,
and proficiency exercised by reasonably careful, skillful, and prudent
actors operating under the same or similar circumstances. (as imposed
in Vergara)

Duty to disclose risks of surgery- see informed consent

Other Professionals
Education- acceptance standard across country for all education levels= NO
COA for educational malpractice (Loyola, but see dissent, maybe for
unfulfilled K?)
Non-medical practitioners (e.g. chiropractors): held to their school of
belief, not med standard
Mental health care providers (i.e. clinical psychologists, social workers)owe duty of customary practice
o Compared to each other, not psychologist to social worker
Clergy- no duty or standard of care
o Yet as Pastoral role- similar to mental health professionals (clergy
malpractice)

15

Malpractice Messwho pays for suits? Complete negligence

unavoidable, but no alternative to litigation system (e.g. trying to deal
directly with dr/hospital, must go through cts and sue insurance). Alternative
approach (vaccines, New Zealand)set aside some money tacked onto
every transaction for fund for those injured, program does not try to sort out
claims of bad luck vs. negligence but has list of recoverable injuries based on
severity/frequency. If not satisfied one can sue but people usually dont.
Benefits: predictable, evenly distributed, keeps vaccine companys in
business (otherwise theyd be bankrupted by suits), downsides: if applied
broadly (e.g. to too many/all injuries), it would exceed cost of universal
coverage, doesnt allow emotional satisfaction of day in court. Caps? Limit
liability but remains frustrating and not uniform in fair compensation (like
current litigious system).
*Problems w/custom standard? Reduces innovation (dont want to try
something new b/c wont measure up to standard of care), creates problem
of conspiracy of silence, reduces tailored care by patient, progressive overcare overall. Customary standard applies to all practices (e.g. lawyers,
accountants, etc).
Res Ipsa in MedMal (Use to Show BREACH of Medical Duty)
1) Injury causing event does not occur in absence of negligence
2) Injury was most likely caused by D or instrumentality in exclusive control of
a. May be constructive control/right of control, ALL s who had shared
control over body/instrumentality causing injury have control unless
shows proof to contrary, Ybarra (rationale: in worse position to
prove who actually did it, encourage drs to come forward and say who
actually caused the harm)
b. NOT exclusive control when attributable to frailty/previous condition,
must offer evid to exclude these to show MOST likely drs fault (Kelly,
failed b/c of preexisting pre-enema probs)note this makes it hard for
who went to dr for prob in 1st place
c. Usually need expert testimony to explain that the situation could not
have happened w/o negligance UNLESS obvious breach (e.g. sponges
left in body) (States v. Lourdes Hospital, allowing expert testimony
to supplement RIL)
Informed Consent
Informed consent- owes patient duty to disclose risks of non-negligently
performed surgery so patient can make intelligent decision. Most cts treat as
negligence, a few as battery (ins may not cover). EXC: emergency situation
threatening Ps life

16

ELEMENTS
1) Physician failed to comply with the standard for disclosure
a. Minority: Disclose what doctors customarily disclose
Usually requires expert testimony
Rationale-professional standard since malpractice case, may be
therapeutic reasons for withholding information, and adds little
burden to since must produce medical testimony on other
issues
Overlooks purpose of requiring disclosure, protect patients right
to decide for himself
b. Majority: Disclose what a reasonable patient would want to know (Harnish,
wasnt told about potential loss of tongue function)
General Rule: physician owes to his patient the duty to disclose
in a reasonable manner all significant medical information that
the physician possesses or reasonably should possess that is
material to an intelligent decision by the patient on
whether to undergo proposed procedure
Information a physician reasonably should possess =
information possessed by the average qualified physician
(practicing in that specialty)
What physician should know involves professional
expertise and can be proved only though testimony of
experts
Extent to which he must share that info with his patient depends
upon what information he should reasonably recognize as
material to patients decision
Material determination is one that lay persons are
qualified to make without aid of expert
Situations that call for non-disclosure- complicate procedure or
render unfit for treatment
c. Disclose what the particular patient would want to know
2) The undisclosed risk occurred and harmed the P
3) Causation: (maj: objective): the + a reasonable person UTC (some cts: judged
by reasonable person in light of s personal fears/beliefs) would NOT have
consented if informed
Specific examples:
1. IC = risks of procedure itself
a. NOT drs own success rate (Wlosinski), contra Johnson, patient entitled to
info that more successful/experiences drs available
--But cant LIE, state statutes prevent fraud
b. Must disclose risks of turning down procedure (Truman, declined pap
smear w/ no medical harms from not doing the procedure)

17

c. If outside procedure itself, use practice standard (e.g. must share life
expectancy, Arato)
d. Contributory fault in the context of informed consent (Dibbell): When
patient does not inform doctor of relevant conditions, they can be held
partially liability as well.

IMMUNITY= no duty
Family Immunity
1. Spousal: nearly all abolished, some partially abolished (e.g. immunity from
negligence but not intentional torts or motor vehicle accidents)
2. Children: (majority) abolished BUT 2 exceptions remains, some partially
abolished (immunity not applied in intentional torts/motor vehicle accidents,
Rousey)
a. Where the alleged negligent act involves an exercise of reasonable
parental authority over the child
i. [Courts have expressed this is not a question of reasonableness of the
actions, but reasonably within of the scope of parental authority]
1. How to discipline your child: spanking, locking your child in a
cupboard
b. Where the alleged negligent act involves an exercise of reasonable
parental discretion with respect to the provision of food, clothing,
housing, medical and dental services, and other care (necessaries)
--NOTE: doesnt apply where duty is to world at large not kid (e.g. Hoppe,
exploding nail gun, duty not to negligently maintain explosives applied to all
potential victims)
a. No duty approach (Augsburger, cabinet)doesnt apply if intentional
tort
b. RPP (small minority)
3. Policy fears of parent/child lawsuits:
Misappropriation of family resources: taking from brother and sister
Risk of subverting parental discipline
To permit suits would be encouraging fraud and collusion
Suits would disrupt family harmony
4. Immunity does not apply to siblings

Charitable Immunities
Mostly abolished, some retain/partially retain (e.g. neg but not willful/wanton
acts, abolished only as to hospitals, etc)
o Some cap damages by statute
o No immunity for paying patients in hospitals/immunity for charity
patients

18

o
o

Statutes MAY provide immunity for individuals engaged in charitable

activities, e.g. fed statute for nonprofit volunteers)
Traditional view: IMMUNITY, EXC: non-trust funds (ins), administrative
neg, claims by paying users, collateral commercial activity (e.g. YMCA
ski trip), intentional torts

Federal and State Government Immunities

1. Federal Immunity: FTCA abolished after WWII
FTCA Cases:
1. Governed by state law
o E.g. in MD, no recovery if hit by federal vehicle while jay-walking
because its one of the five states with CN
o Standard of care established is the same that would apply to an
ordinary private person completing the same or similar task.
Can not look to state/ muni governmental entity (Olson, no
private mine inspectors but can be held to the standard of
private companies who do safety inspections.
2. Key conditions on waiver of immunity:
o Before filing suit in court, P must submit claim to govt agency involved
o Suit is not permitted until agency has refused payment or has delayed
over six months in making a decision on it
o Bench trial- no jury
o Fed ct
o No punitive damages
o No SL under FTCA
3. EXCS from bar on immunity:
o Intentional torts (possible exc: fostering the risk, e.g. letting off-duty
officer take govt rifle off base)
o Government activities (e.g. mail delivery: immunity for lost letter, NO
immunity for negligently-driven mail truck)
o All claims arising in foreign countries
o Combatant activities of military
o Feres Bar: judicially created
Government is not liable under the FTCA for injuries to service
men where the injuries arise out of or are in the course of
activity incident to the service. (e.g. Jefferson, towel in
abdomen not recoverable; Purcell, suicide in barracks barred by
Feres doc (questionable since we dont dont know if the suicide
is an incident to service or if his girl friend broke up with him)
Fares policy rational:
The need to protect the unique relationship between he
fedgov and the armed forces which could be adversely
affect by differing tort laws
The existence of statutory compulsory schemes
The need to avoid interference with military discipline and
effectiveness
No private rationale

19

Different state laws

Does NOT bar claims by spouses/children on base
Discretionary functions
--Note: no immunity when govt disregards own regulation (Loge,
vaccine not controlled according to regs)
Apply Gaubert test:
1. Barred
a. Was challenged act discretionary (did govt have a
choice of action)?
b. Was challenged act one Congress meant to protect as a
policy decision (design or implementation)?
2. Not barred
a. Error in implementation (Whisnant, poor maintenance
not immune)

Is it a design decision? Discretionary function exception:

Ex. Guard rails
o If they chose not to implement them, then that is discretionary
(immune)
o If they negligently maintain or implement them, it is a matter of
implementation (not immune)
2. State Immunity: abolished/limited by legs in 60s/70s
o Most states follow federal model and waive generally, retaining it in
particular, specified situations
o Smaller but significant number work in reverse, retaining immunity
generally but abolishing it in particular, specified situations
o Smaller number retain virtually complete immunity (e.g. AL)
3. Municipality Immunity (chartered by sovereign): may be separate or same as
state rules
Traditionally afforded immunity (public duty doctrine: no private person can
recover) (Riss not being helped by police demonstrates a policy choice [Cant
respond to everyone])
4 things that a person must show to establish a special relationship (and
thus duty) by a municipality
1. Promises or actions that represent an assumption of an affirmative
duty to act on the plaintiffs behalf
a. EX: when they have undertaken responsibilities to specific
members of the public, creating a special relationship
voluntarily assumed duty to exercise ordinary care in
performance of task (DeLong, dispatcher fail is implementation
problem)
2. Knowledge by the municipalities agents that inaction could lead to
harm
3. Some form of direct contact between the municipalities agents and the
injured party
4. That party's justifiable reliance on the municipalities affirmative
undertaking.

20

Establishes the causal link between the special duty assumed

and the alleged injury

4. Public Officials Immunity: Applies to public officer carrying out his official duties
when they involve discretionary acts done without malice or improper purpose (no
immunity for ministerial acts- operational level)

Duty to act affirmatively/ Nonfeasance/Misfeasance

Nonfeasance- doing nothing = no liability (Phelps not saving beautiful drowning 8
year old; Kitty Genovese with dozens of onlookers; Estate of Cilley, someone
killing themselves in your house)
o Misfeasance- something affirmatively done
o Nonfeasance- whether you are obligated to take the action in the first
place
Exceptions and Qualifications to No Duty to Rescue
a. Voluntary rescue: If you choose to rescue, you must rescue like a reasonably
prudent person under similar circumstances while other is in your custody +
when terminating rescue
a. Cannot make a person worse off by abandoning the rescue AND if
other is in immediate peril at time of termination must show
reasonable care in terminating (Wakulich, boys not helping 16y/o after
they paid her to drink Goldschlager)
b. Yet if this rescue is danger to yourself, then you dont have to rescue
EXC: Good Samaritan laws immunize voluntary rescuer in some states,
sometimes limited to professional rescuers/meds who gratuitously aid
b. Special relationship duty to rescue person in peril with whom you have a
relationship (Farwell v. Keaton, boy drives companion in common
undertaking around for hours instead of getting help after being beaten)
a. Parent-child; school-student; doctor-patient; custodian-one in care;
employer-ee; landowner-invitee; carrier-passenger; innkeeper-guest;
shopkeepers-patrons (and other relationships in places of public
accommodation).
b. NOTE: NOT exhaustive, cts can add discretionarily (Farwell, friend in
car/imposed duty, vs. Faltys, frat bro drowning/not imposed)
c. Own conduct (RS 39, negligent or innocent) places another in peril (or
contributes, e.g. giving gun to assaulter) = duty to use reasonable care to
aid/assist that person
--NOTE: others helplessness not reqd, must take steps to mitigate risk
created if in better position to render aid than injured person (jury Q of duty
when in position to influence tortfeasors rescue/position to influence
outcome, B<PL)
--Can be a case-by-case consideration in some states, e.g. Podias (NJ), where
friends w/cell phones did not call for help for hit motorcyclist after letting
friend drive drunk
Because the burden was so light (calling 911) and the situation so
serious (death of the biker), the court holds the boys to a duty to act

21

reasonable under the circumstances (NOT a duty to rescue, or risk your

own safety)
d. Statute/ordinance requires a person to act affirmatively for the protection of
another
37: No duty of care with respect to risks not created by actor
An actor whose conduct has not created a risk of physical or emotional
harm to another
has no duty of care to the other unless a court determines that
one of the affirmative duties
provided in 38-44 is applicable.
39: Duty based on prior conduct creating a risk of physical harm
When an actors prior conduct, even though not tortious, creates a
continuing risk of physical harm of a type characteristic of the of the conduct, the
actor has a duty to exercise
reasonable care to prevent or minimize the harm
40: Duty based on special relationship with another:
a. An actor in a special relationship with another owes the other a duty of
reasonable care
with regard to the risks that arise within the scope of the
relationship
b. Special relationship giving rise to the duty provided in subsection (a)
include:
1) A common carrier with it's passengers.
2) An inn keeper with his guests
3) A business or possessor of land that holds the land open to the
public with those
who are lawfully on the land.
4) An employer with employees when, at work,
a. They are in imminent danger or
b. Are injured or ill and helpless
5) A school with it's students
6) A landlord with his tenants
7) A custodian with those in his custody
a. If the custodian is required by law to take custody or voluntary
takes
custody of the other AND
b. If the custodian is has a superior ability to protect
Duty to Protect From Third Persons (TPSH)
Generally no affirmative duty to protect, EXC where:
1) Special relationship (what counts? Look for named legal relationships ( such as
Eee/Eer)
--Iseberg, shooting business partner, no SR
--Schools: duty where supervisory + acting in loco parentis. Some states:
limited to on-premises/school hrs (Young, kid crossing street on bike to go
back to school for parent teacher conference)
--Colleges: no duty (no SR)
--Landlords: no duty to protect against 3rd party attacks (Ward, crazy
neighbor beat down) or maintain security measures (other cts: must maintain
security employed when tenant became a resident, Kline). Must act when:

22

Landlord knows of a defective condition that foreseeability

enhances the risk of criminal attack
a Door not intended to be operable from outside is defective
and operable form outside and someone breaks in using hole.
2 Landlord who undertakes to provide security has a duty to act with
reasonable care
a Security guard decides to go get a beer instead of doing
patrol.
--Hospital: duty to take reasonable measures to protect domestic violence
victim (McSwane)
2) Foreseeable harm (how much?)
o 4 Approaches to Foreseeability
Specific harm (outdated)- duty only when is aware of
specific, imminent harm to
Prior similar incidents duty if past history of criminal conduct
put owner on notice of risk to ; courts consider the nature and
extent of previous crimes, coupled with their recency, frequency,
and similarity to the crime in question
Totality of the circumstances (majority)- takes additional
factors into account, such as the nature, condition, location of
the land, plus any other relevant factual circumstances bearing
on foreseeability
Balancing test (cost benefit analysis) (small minority)- duty
when foreseeability of harm and gravity of harm > burden of
imposing a duty on business (NOTE: this misconstrues breach
element, Carroll Towing. Shifts burden of security from public
(police) to private enterprise (pay for security), only a few
states: CA, TN, Posecai, cost burden of having full time security
in the parking lot is greater than the less than the benefit form
imposing the duty)
*Still need to prove breach (consider McSwane)
*Duty may not matter after damage calculation (political, states vary)
(Reichert, owner had duty to protect patron from violent invitee, but if not
joint/several liability, % liability may yield low damages)

Duty Based On Relationship with 3rd Party Sources of Harm (TPSH) (RS 41)
1. Duty of reasonable care when risk posed by 3 rd party within scope of special
relationship
2. Special relationships include:
a. Parents/children
a. Basic limits: parent is not vicariously liable for a child's tort merely on
the basis of parental relationship.

23

b.
c.

d.
e.

f.

b. Parents are not liable for a child who is generally rough, but can liable
for the specific dangerous habit of a child if they knew or should have
known them to exist.
c. For parents to be held liable, there must be more than parental
suspicion, there must be some specificity of a present opportunity and
need to restrain the child to prevent some imminently foreseeable
harm.
Custodian/those in custody: duty to protect those known to be threatened
and those who are directly and foreseeably exposed to risk of bodily harm by
those in their charge (Dudley, halfway house duty to victim of violent ex-con)
Employer Employees
a. Scope: In addition, employers being vicariously liable for employees
torts during work, they may also have an affirmative duty to prevent
harm when employment facilitates the employee's causing harm
b. Can be liable for negligently hiring a dangerous person who later
harms the if they should have know that emp. Would subject others
to an unreasonable risk of harm
c. Negligent supervision at work could afford a duty to care
d. Such as providing an underage emp. Alcohol for work purposes
e. Forced conditions of work: extremely long work hours causing a person
to drive home fatigued has split court, with many recent decisions
going toward not imposing liability.
Sometimes: landlord/tenant
Mental health professional/patients (Tarasoff, not warning 3rd party of
danger)
--Note: reasonable care, also still relies on foreseeability of specific harm
caused to usually readily-identifiable victim (Thompsonstates disagree)
--Other drs: Tarasof duty may apply, e.g. duty to warn of dangerous effects
of meds, duty to warn of how to avoid spreading communicable disease, NO
duty (even prohibited) from revealing AIDS patients identities to possible
partners
--Criticism: unworkable b/c therapist cant predict (administrability), conflicts
w/confidentiality duty
--Codified/rejected/expanded (to cover bystanders who see confided-of
violence, duty to prevent suicide) depending on jurisdiction
Negligent Entrustment: giving/selling dangerous item to TPSH who
knows or should know will use it in a dangerous way (e.g. selling gas to drunk
driver, Brigance: alcohol to drunk people/minors)
i.
some cts reject alcohol provider liability (traditional):drinking is
the cause not selling
ii.
some cts allow social host liability
iii.
some states have dram shop statutes:
a. Statutes regulating the sale of alcohol to minors or intoxicated
persons do not generally create private causes of action; some
states specifically allow civil liabilities for such things
b. Sometimes these laws create strict liability because they do not
require fault but rather only a factual causation
c. Others states fully bar civil lawsuits, even when a business should
have known. Sometimes attending safety classes provides
immunity or safe harbor.

24

Breach (small n negligence): D acted unreasonably

--Foreseeability plays a role for precautions: RPP obligated to take precautions more
often when risk is more likely.
--Note: if 9/10 times RPP would avoid risk, jury must find breach (not human
fallibility)
--Note: where AUC is inadvertent (not balanced and ignored), B = cost of greater
attention (matter of common sense for jury)
Steps:
1. Identify AUC (be specific, e.g. failure to make Johnene leave car not failure to
drive safely)
2. Ask if theres a factual dispute about whether act/omission occurred
3. Identify theory of why AUC was unreasonable:
***P will argue what acted unreasonably by looking at the radio. This is
unreasonable because ***

How to evaluate reasonableness:

o Assessing risk and costs
It is usually reasonable to do what is customary (Mathew starting lawn
mower in garage is customary)
It is usually reasonable to value life over property (Mathew, not
running into garage to push out mower values life over property)
It is usually reasonable to avoid greater damage
It is reasonable to take cost-justified precautions (Boston Edison,
company has a responsibility to mitigate risk, weighing cost versus
likelihood of harm)
NOT reasonable to warn against obvious (Stinnett, roofing work is
dangerous)
NOT reasonable to protect people who can protect selves (Stinnett,
worker with roofing experience is more able to protect themselves than
one who hires them)
Evidence of custom is admissible but not conclusive (TJ Hooper,
custom may lag but the RP standard still applies)
13: Custom
An actor following with the custom of the community is evidence
that their conduct is not negligent (n) but does not preclude a
finding of negligence (N).
An actor departing form customs is evidence of negligence (n)
but does not require a finding of negligence (N).
--Departure from own custom not conclusive (may have been
excessively careful)( Walmart Stores, Inc. v. Wright, Walmart
handbook does not set standard, RP does)
--Bears on: foreseeability of harm, whether D knew/should have know
of risk, that risk was unreasonable w/o precaution, unreasonable in
community opinion, and feasibility of safety option

25

--Defenses: question custom, show specific conduct posed less risk

than other activities of kind, D adopted alternative methods to reduce
risk
--Can introduce evidence as P sword or D shield
--Expert: testifies as to safety/cost, not whats reasonable
Passage of time (needed for slip and fall, Thoma, slippage in cracker
barrel after a long period of time)
--Note: slipnfall theories: (a) created condition, (b)
discovered/shouldve discovered condition, (c) in s mode of
operations it was foreseeable a dangerous condition would be created
+ didnt take precaution to avert (e.g. grocery display)
--Not clear liquid, Stinnett bars
--Constructive notice to D (time on floor) hard to est, some states ease
P burden(e.g. need pattern of conduct)
Violation of a statute (negligence per se)- establishes duty AND breach
--Note: safe custom may trump weak ordinance (Duncan, wood for
steps)
Compliance w/ statute does not satisfy duty per se (Statuary
compliance is normally a minimum standard of care; Miller, not
requiring smoke detectors by law does not give a hotel a free pass not
to have them)
Hand Formula B<PL (Carroll Towing), esp. warning (low B)
B= burden (may incl risk created by precaution, e.g. looking ahead
while driving)
P= probability of loss
L= cost of loss
Note: memory of RP reqd (e.g. not reasonable to forget hole in yard
could trip someone, but even memory has cost (reminders/staffing/etc)
Note: may be hard to determine cost, may need to account for COST of
getting cost (such as hiring firms, surveys, consultants)

1. Evaulating risk-utility assessment (p. 157): (1) it provides deterrence in right amount
(proportion) and maximizes community resources (community richer if members do not spend
$10 to save someone $5). (2) Some say basic liberties of freedom of action and security should
take precedence over considerations of wealth. (3) There are alternative ways juries may judge
negligence: (a) intuition, (b) by statutory prescriptions, (c) hard-and-fast judicial prescriptions,
(d) custom, (e) moral rules.
Zipursky, Sleight of Hand: Hand formula cannot be a uniform field theory of breach
(negligence). Momentary error cases do not make sense (e.g. waiter who drops hot soup),
trying to calculate the burden is too difficult. Jury instructions also do not match up. There are
other ways to conceive of negligence as well, e.g. deontological/rights based perception of
reasonableness (relational carefulness to others, Golden Rule), virtue theory (template of a
virtuous prudent person, to be negligent is to fail to be virtuous), civic competency
(Zipurskys preference, mix-and-match from other theories)

26

E.g. p. 196, kid hit in dark/rain driving 20 mpg. B<PL guides argument, better to
argue B of honking/flashing lights too low NOT to be unreasonable, not that driving
differently was better
Res Ipsa Loquitur- the thing speaks for itself, circumstantial evid (to
establish breach)
--Note: may use as one of multiple theories (specific neg/RIL)
Two prong text
1) Injury/accident is of type that normally occurs through negligence
a. Appeal to common sense (Byrne, flour barrel falling out of a window,
Koch, Cosgrove)
b. Exclude other possibilities (Warren, car rolled down hill)
--Judge Posners bus example: RIL not a free ticket out of burden to
prove: if 51% of buses owned by company A, not RIL b/c could
undertake investigation to find out who was actual cause (unless
shows investigation impossible)
c. Expert testimony required in medical cases (Persinger, toddler ankle
break)
d. Requires more than 50% likelihood of
2) Injury/accident normally caused by person in s position (instrumentality in
exclusive control of must show MORE probable was cause, Barbie,
mullion bar could have just as likely been someone else)
--Flexible rule, where was probably neg and contributed, RIL allowed (Giles,
elevator lady)
--2+ s in serial control = RIL allowed (Collins, ambulance/hospital yielded
broken leg)
3) did not contribute to the injury
--Depends on juris but most: less rigid now, enough that was A neg party,
(Giles, allowing elevator lady with contributory negligence to still recover)

Elements above different from RS elements:

o 1) event is of a kind which ordinarily does not occur in absence of
negligence
o 2) other responsible causes, including the conduct of the plaintiff and
third persons, are sufficiently eliminated by the evidence
o 3) the indicated negligence is within the scope of the defendants duty
to the plaintiff

Factual Causation (but-for breach, harm wouldnt have occured)

Imagine alternate situation where defendant doesnt commit the breach. Infinite
causes: need to be A cause not THE cause (Hale, bushes growing that forced
woman into street, Salinetro, not asking if patient was pregnant before xray).
: But for the breach of Dave looking at the radio, Dave would have
let up on the accelerator and Peat would have crossed safely.
: Even if

27

1. Indivisible Injury
o

Merged (duplicative) causes- occurred at same time (or dont know

which occurred first) to bring about an injury, each of which would have
been enough by itself to cause the harm
Substantial factor test: both Ds liable if each breach was a
substantial factor sufficient to cause the harm (Landers, 2
causes not salt packet; Lansley, both truck which caused
backup and drunk rear-ender were necessary for harm to have
happened, both liable)
Covers multiple causal sets (e.g. if A, B, and C lean on car
and only 2/3 are needed to push over cliff, all 3 liable. RS no
comment if A responsible for 2/3 itself and B only 1/3 where 2/3
needed).
Burden shifts to to show he was not a substantial
factor
Ct may excuse de minimis contributor (e.g. faulty dam when
flood, salt packet with salt water spill)

Sequential causes
Loss of chance doctrine/loss of opportunity doctrine
only receives damages for lost opportunity (time harm is
accelerated, higher risk, lost opp), NOT entire injury if deprives
of substantially better outcome, and V SMALL risks may not be
compensable.
Medmal form of recovery that allows , whose preexisting injury
or illness is aggravated by negligence, to recover for lost
opportunity to obtain a better degree of recovery
Causation Tests
a. Traditional:
burden: 51%+ chance of more favorable outcome than
received
Recovery: Full value of the chance (100% of future earnings+
medical bills+ P&S; If difference in chance is <50%, recovers
nothing.
b. Relaxed
burden: lower, must show s neg more likely than not
increased harm by some degree or destroyed substantial
possibility of better outcome; Does not need to be 50%+.
Recovery: Full value of the chance
c. Hybrid/ Loss of chance/ Value of the Chance (1/2 of
states)
burden: s neg deprived of some chance for better outcome
by preponderance of evid (any % of reduced chance)
Recovery: damages for loss of opp, not whole injury, damages
being proportional to chance lost (Future earnings+ medical
bills+ P&S * % of likelihood lost) (Mohr, delay in medical
treatment meant decreased chance of walking out fine.)
*See notes on lost opportunity damages below

28

Sequential/Unascertainable Causes
If ascertainable, only preempting cause is actual cause (e.g.
shooting before poisoning)
May be a jury question of preempting cause or not (Dillon, was he
already falling to his death (not liable) or would he have survived
in injured state (liable, but only to compensate for ltd earning
capacity as injured person)).
Otherwise, in case of 2+ actors, burden shifts to to show he
was NOT a cause or jointly/severally liable (Summers, hunting)

2. Divisible Injury: each only at fault for harm he caused, no joint/several liability

Lost Opp Damages:

Proportional damages (lost opp test): e.g. if 40% chance of survival
eliminated by s neg, gets 40% of damages if had caused the harm
itself. Note: 75% chance gets 75% damages (doesnt change to 100% by a
preponderance of evidence rule).
Note also: 40% chance that theres a 30% chance changes quantified
analysis, chance of chance requires preponderance of evidence
Under traditional: but-for cause loss of opportunity often wouldnt be
compensable (e.g. reducing 40% chance of improvement to 20%, wasnt
preponderance of evidence for claim that recovery would be greater). Loss
of chance theory is more pro- approach (policy rationale, drs should be
deterred from giving patients less than maximum chance for recovery). --If
chance of recovery goes from 60% to 40%, gets 100% damages b/c can
prove by preponderance of evid
Liability of 2+ Persons (Damages)
A. Indivisible injury

Comparative Fault (): (most states) in negligence and strict liability

cases (not intentional torts), recovery reduced in proportion to own fault/
liability correspondingly reduced.
Joint/Several Liability: (traditional) can enforce 100% of claim against
either tortfeasor. After that, if one pays more than their share, they can
collect contribution (proportional payment from other (s) for their fault)
by cross-claim suit. BUT if one D is insolvent/uninsured/ immune, other
cant recover contribution payment (has to pay full amount).
Policy: Doesnt leave handling the bag for one s financial problem,
when there is another that is (at least partially) responsible and could
pay.
Several Liability/Proportionate Share Liability/Comparative Fault Liability:
(alternative enacted by many states by statute) Trier of fact apportions
fault, collects proportional amount from each individually. No
29

contribution, if one cannot pay (insolvent/immune/uninsured), suffers

loss (cant collect from other to cover for the co-).
B. Divisible injuries: each liable for only harm he caused, no fault
apportionment needed

C. Agreement: may be responsible even if his own conduct was not the cause of
harm, e.g. respondeat superior, partners, conspiracies
Proximate cause (legal cause, scope of responsibility)
Elements must show that (at the time of the careless event)
1. he was a foreseeable victim
2. who sustained a foreseeable type of harm.
not liable unless a reasonable person in Ds position UTC should have
foreseen that his conduct risked injuries (1) of the same general type that
occurred (Medcalf, non-functioning intercom was not there to protect visitors who
were standing outside the building) to (2) a general class of persons to which
P belongs (Palsgraf, not a foreseeable victim at the time of the action since was
unaware of fireworks). Ex ante exercise: determine risk created and then compare
to harm caused, not the other way around (Crenshaw, breaking arm after slipping
on vom is not foreseeable from serving rotten shrimp). If cant determine whether
harm was w/in scope of risk created by neg, jury Q. Same rules apply when
determining s CF.
Intervening medical malpractice: Hit by car, then doctor act with malpractice:
foreseeable as a matter of law ( liable for increased damage form
intervening medical malpractice)
Intervening negligent rescue: Hit by car, then good Samaritan pulls him away
and dislocates the s shoulder: it is added to the tab of the .
Intervening reaction or protecting force: broken leg from being hit by car, and
is stepped on by others avoiding being hit: Negligent driver is responsible
Subsequent disease or accident: runs red light and breaks s leg, trips
because of the crutches he must use, is responsible for the additional harm.

Cardozo/Andrews disagreement dimensions: (1) substance: whats the

limiting principle on liability? Cardozo: foreseeability, zone of danger
Andrews: multi-factor test, when someone is harmed, they should not be
forced to deal with it on their own (p. 227), (2) procedure/verbiage: where to
situate the limiting principle? Cardozo: duty, judge question Andrews:
question of proximate cause, jury question. Most cts agree w/Cardozo
to limit by foreseeability, but use Andrews procedural positioning of
proximate cause.
Defining Scope of the Risk:

A. (What) Medcalf, risk is w/in class of risks created by neg conduct

B. (Who) Palsgraf, P is w/in class of persons risked by neg conduct. EXC:
rescue doctrine, danger invites rescue, rescuer w/in foreseeable class of
persons harmeddoesnt count when not involved to aid, e.g. husband
coming to scene to be with wife

30

C. (How) Manner in Which Harm Occurred: if harm caused is same

type/degree as harm risked to type of victim risked, LIABLE even if exact
manner of causation was unforeseeable (Hughes, kid burned in surprising
way after lantern was left out). If harm that occurs is different in degree/kind
from harm risked, not foreseeable (Doughty, burned, but risk of uncovered
vat was splash, not explosion; Darby, death, but risk of open lake was Weils
disease, not drowning). Note: latitude in characterizing, diff sides will
characterize unforeseen mechanism differently.
D. (Where/When) Intervening Act (break causal chain or w/in risk created)?
liability limited to those harms that result from the risks that made
the act tortious (RS 34)
1. NOT Superseding if it was w/in risk or connected to it
o Very duty rule: If the duty was to prevent someone else's unlawful
actions, the unlawful intervening action the duty was to established
to prevent does not negate that duty (Marcus v. Staubs, giving
kids booze is there to prevent them from drinking and driving, thus
drinking and driving does not negate neg act)
2. Criminal acts: sometimes supersede, depends on whether w/in risk
created
3. Suicide: e.g. Delaney, gun securing, took case-by-case approach:
a. Traditional (most states): suicide IS superseding
b. Exceptions (rare): if s conduct induces mental illness/suicidal impulse
+ where special relationship exists where knows/should know of risk
4. Negligent Intervening Acts: still liable if put in situation of
heightened danger that results in harm (e.g. Derdiarian, roadside
construction against traffic, vs. Ventricelli, trunk lid not closing being
foreseeable for being hit by another car; Collins, not being up to fire
standards does not become ignored when someone sets a fire)
5. Termination of the Risk: D remains liable until situation has
normalized after
negligent conduct (Nugent, liable for someone hit responding to a
situation you caused (truck in storm) Horton, risk shouldve terminated
when parents got blasting caps)
--But resulting harm must still be a what risk created (e.g. Sheean, but
stopping illegally not prox cause of passenger injury when sanitation
truck hit it).
6. RS 35: Enhanced Harm Due to Efforts to Render Aid: D liable for
enhanced harm due to effects of 3rd party trying to render aid reasonably
required (EXC: not unreasonable efforts to render aid, e.g. enlarging cut)
Intervening causes
|---|-------|-|-|-----------------|-----|
's breach
's injury

Foreseeable results, foreseeable intervening force- defendant liable

Subsequent medical malpractice- original tortfeasor is usually
liable for the aggravation of plaintiffs condition caused by the
malpractice of plaintiffs treating physician

31

Negligence of rescuers- rescue is foreseeable response to

accident or injury; original tortfeasor still liable when injured
person is hurt more by rescuers or rescuer is hurt (true even if
rescuer is negligent)
Unless performed in grossly careless manner
Cardozo: Danger invites rescue
Efforts to protect person or property- defendant is liable for
negligent efforts on part of persons to protect life or property of
themselves or third person endangered by defendants
negligence
Reaction forces- where defendants actions cause another to
react (i.e. negligently firing a gun at someones foot), liability
attaches for any harm inflicted by the reacting person on
another
Subsequent disease- original tortfeasor liable for diseases
caused in part by weakened condition in which defendant has
placed plaintiff in by negligently injuring her
Subsequent accident- when plaintiff suffers a subsequent injury
following her original injury, and the original injury was a
substantial factor in causing the second accident, original
tortfeasor usually liable for damages arising from second
accident

Foreseeable results, unforeseeable intervening forces- defendant usually

liable
o Intervention is neither foreseeable or normal, but leads to the same
type of harm as that which was threatened by defendants negligencedefendant liable
Most courts will find liability here because they give greater
weight to foreseeability of result than to foreseeability of
intervening force
EXCEPTION: When intervening force is an unforeseeable crime
or intentional tort- then it is deemed a superseding force- cuts
off defendants liability
EX: fails to clean residue out of oil barge, leaving it full
of explosive gas.. Negligence exists because an explosion
resulting in harm was foreseeable. Yet unforeseeable bolt
of lightning strike barge causing explosion. is liable.
o BUT if arsonist caused explosion, no liability.
Unforeseeable results, foreseeable intervening forces- defendant not liable
Unforeseeable results, unforeseeable intervening forces- defendant not liable

Damages
*Must suffer actual harm or injury (Breen, can not simply recover nominal
damages) and is expected to mitigate damages (enhancement)

32

*Collateral source rule: any payment from outside sources to compensate does not
alter judgment against , may subrogate. Rationale: may under-deter guilty party
and s decision to self-insure should not affect s liability.
* Nominal damages are not available in negligence (only in intentional torts)
Compensatory damages- to give you back what you lost
Economic/pecuniary damages specials
Out of pocket expenditures that have been made or will be made by
plaintiff: lost wages, medical monitoring (controversial), medical
expenses, extras?- mowing lawn
Ct may allow periodic payments instead of lump sum (or structured
settlement), lump sums must be adjusted for inflation (up)/investment
(down)
Non-economic/non-pecuniary damages
Pain and suffering
More than just physical pain- reduced quality of life, mental/emotional
suffering
Where lawyer fees come fromneeded to take case
Most cases require that person be consciously aware of injury and loss
of enjoyment not separately measured from pain/suffering,
McDougald (brain damage) (minority of cts do allow separately)
Per diem/Golden Rule (cost to trade places)/comparable case
measures: allowed in some cts, not others. Most say no mechanical
way to do it, must calculate case by case.
The trial court must grant a new trial absolute if the if the amount of the
verdict is grossly inadequate or excessive as to shock the conscience
of the court and clearly indicates the figure reached was the result of
passion, caprice, prejudice, partiality, corruption, or some other motive.
(Dillon, super low recovery even when bills were demonstrated)
Punitive damages- punishment/sanction against defendant
Only for intentional or reckless torts, not negligent torts
General Rules of recovery, p. 860-862:

1. Requires misconduct w/ intent/malice or wanton/reckless disregard

(can bring in negligence case though if showed conscious
indifference to consequences)
2. Purposes: retribution, deterrence, sometimes litigation finance
3. Jurys discretion determines whether and how much to award. Not per
se unconstitutional, but extreme awards may violate due process
4. Statutes may limit amount, otherwise reasonable proportion
guideline
5. Comparative fault does not reduce punitive award
6. Awarded for various reasons, e.g. bullying, profit from tort (OwensCorning, intentionally mislead employees on safety issues for years)
7. Measuring: reprehensibility of conduct, wealth, ratio rules (compare
punitive damages to potential harm of conduct). Limiting: amount of
award or number of cases where they may be awarded (increased
proof standards, single liability statutes, specific malice requirement,
33

redirecting funds, statutory caps/ratios).

Extent of Harm: Eggshell skull rule: if extent of harm is greater than
expected, does not reduce liability.
--But must be neg act that wouldve foreseeable cause harm to a normal
person, not something that ONLY harmed b/c of s condition
--Rationale: benefits when already doomed (Dillon, low damages if
reduced capacity already), should pay for flip side too. Also, take as you
find him: just injuring someone on the fragile side of the bell curve doesnt
remove foreseeability.
Guideposts (State Farm):
1. The degree of reprehensibility of the 's misconduct
2. The disparity between the actual or potential harm suffered by the and
the punitive damages award
3. The difference between the punitive damages awarded by the jury and the
civil penalties
authorized or imposed in similar cases
Gore v. BMW: Punitive damages can be unreasonable
o A court may not enforce laws broken in other states; a jury may not
award claims for people not involved in this case
o The multiplier should be no more than 10x (unless the compensatory
damages are very low)
Not a hard limit: 5k comp, 186k pun in Mathias with evidence of
repeated misconduct (ticks instead of bedbugs)
o Look for similar award info
Damage caps- of states have these- tort reform
--Others have found unconstitutional, overridden by other statutes, used
annual cap increases, only applied to certain claims, or removed in extreme
cases
31: Eggshell plaintiff rule: When an actors conduct causes greater harm than
expected, the actor is responsible for all the damages
901 General principal for damages
Damages should be based on of these reasons:
A To give compensation, indemnity or restitution for harms
B To determine rights
C To punish wrongdoers and deter wrongful conduct
903: Compensatory damages: damages awarded as compensation, indemnity or
restitution for harm sustained by him
904: General or special damages
1 General damages: compensatory damages so frequently resulting from a tort
that the existence of the damages is anticipated and hence need not be
alleged to be proven.

34

Special Damages: damages for harm other than what is normally given

905: Compensation for nonpecuniary harm

Compensation that may be awarded without proof of pecuniary loss include
compensation
A For bodily harm
a An impairment of the physical condition of the body including illness or
physical pain
B For emotional distress
905: Compensation for pecuniary harm
Compensation that will not be awarded without proof of pecuniary loss
include compensation for
A Harm to property
B Harm to earning capacity
C Creation of liabilities
910: Past, present and perspective harms
One injured by the tort of another may recover for past, present and
prospective harms legally caused by the tort.
908:
1 Punitive damages: Damage awards, other than compensatory or nominal
awards to punish him for his outrageous conduct and to deter him form
similar future conduct
2 Punitive damages may be awarded for conduct that is outrageous, because of
's evil motive, or his reckless indifference to others. Trier of fact can
consider: character of the 's act, nature and extent of the harm the
defendant caused or intended to cause, and the wealth of the defendant.
918 Avoidable consequences
1 Except as stated in (2) one injured by the tort of another is not entitled to
recover damages for any harm that he could have avoided by the use of
reasonable effort or expenditure after the commission of the tort
2 One is not prevented from recovering damages for a particular harm resulting
from a tort if the tortfeasor intended the harm or was aware of the harm and
recklessly disregarded it, unless the injured person with knowledge of the
danger of the harm intentionally or heedlessly failed to protect his own
interests.

Damage Arguments:
High premiums more correlated to market returns than tort suits
Cap/comparative fault calculations timing may drastically impact total amount.
Side effects: cts may be more inclined to resolve close Qs of liability for when
damages are capped (e.g. Sept. 11 litigation)
Arg for abolishing pain/suff damages: s will pass on costs of award to consumers,
creating compulsory insurance, when most consumers would be better off

35

enjoying cheaper goods and no pain/suff award if hurt. Plus, taking out own
pain/suff insurance would be cheaper than working through tort suit system. But
would there be any deterrent effect then on companies?
*Attys: successful cases subsidize unsuccessful ones, delays compensation (might
work on case for 2 yrs before pay), can result in low or astronomical salaries
depending on damages. Atty fees not usually included in award/settlement b/c of
contingency arrangement.
*Costs: may be recoverable (usually on appeal) for
*Damages depend on the person (e.g. hitting homeless person, less damages,
women less, etc), system designed to restore a status quo ante that is unequal
Six Ways Liability Insurance Shapes Tort Law in Action Article
1. LI is an element of tort liability for all but the wealthiest potential s
2. Contractual limits on amount of LI place a practical limit on the amount of
damages a can receive
3. Liability is shaped to match available insurance coverage (e.g. rarely
intentional torts, neg framing to get ins to kick in, ins complies b/c required to
put individual interests ahead of ins interests)
4. LI makes insurers repeat players pursuing portfolio strategies through
individual cases according to their long-term interests in development of tort
rules and settlements (e.g. chilling claims)
5. LI personnel transform tort rules into rules of thumb for claims
administration that end up determining real recoverability (and therefore tort
rules in action)
6. Negotiations over insurance boundaries drive in-action bounds of tort
inquiries/development of tort law in action
Defenses to Negligence: Contributory Negligence
1. Contributory Negligence= Ps fault in any capacity is an absolute bar to
recovery (Butterfield, driving horse too fast in derby completely barred
claim)
o Doctrine has been abandoned by vast majority of jurisdictions- only 5
jurisdictions retain this rule (AL, NC, MD, VA, DC)
o Zero-sum P/D game
o When the injury is a result of his knowing or intentional participation in
a criminal act, he can not seek compensation for the loss. (Barker, boy
shouldnt have made a pipe bomb)
Public policy; courts should not aid one who engages in
substantial violation of the law
2. Comparative Fault
a. Pure CF: doesnt bar recovery but reduces damages according to Ps
% neg (e.g. NY)
b. Modified/Partial CF: various conditions
E.g. WI, no bar to recovery as long as P neg NOT greater than neg
of D, and damages are proportionally reduced 50/50 split would be
allowed to recover but 51/49 would not
E.g. ND, bar if P fault as great as (=) combined fault of all Ds;
50/50 not allowed

36

c. Equitable and Just Reduction: (ME only): Ps damages reduced by

amount jury considers equitable and just, not in proportion to fault
*To fight jury award, must be against weight of evidence, one
way to determine (Posner) is to compare cost of non-neg
conduct to avoid injury for each party (Wassell)

E.g. if 70% CF in $100,000 award, recovers $30k in NY but $0 in WI; if 50%: $50k in
NY, $50k in WI, $0 in ND
e.g. 2-car collision, 1 ran stop sign 1 drunk
As damages = $100k, 40% fault
Bs damages = $200k, 60% fault
NY: A gets $60k, B gets $80kct nets out so A owes B $20k (even though B was more
blameworthy, damages change situation)
WI: A owes B $0 (b/c B greater neg), B owes A $60kB owes A $60k
8: Factors for Assigning Shares of Responsibility:
a. Nature of persons risk-creating conduct [com: how unreasonable UTC,
extent to which deviated from standard, surrounding circumstances, each
actors abilities/disabilities/awareness/intent], incl any awareness or
indifference w/respect to risks created and any intent with respect to harm
caused;
b. Strength of causal connection b/t risk-creating conduct and harm [com: how
attenuated the causal connection, timing, comparison of risk created and
actual harm.]
3. All-Or-Nothing Outcomes After CF
a. If duty breached is to protect D from his own carelessness (Bexiga, child
using manufacturing machinery when the business had not added safety
features), e.g. children, mentally incompetent, repetitive work. P
vulnerability important if: D knows of Ps disability + Ps risky conduct
endangers himself but not others. Stinnett doesnt apply when Ps
ability for self-care is reduced.
b. If P has an entitlement/absolute right to behave as he did (Leroy
Fibre, had right to store flax on the edge of his land)
c. If P has no duty to be careful as a matter of law ( has a duty to protect
's own stupidity) (Christensen, teacher had sex w/ 13 y/o had duty to
care and child had no duty to act in reasonable self-protection)

Defenses to Negligence: Assumption of the Risk

Express AR= contractual waiver of D liability (total or ltd). Must be:
o Enforceable (e.g. not fraud/unconscionable/contrary to policy, look to:
essentiality of service (e.g. hospital vs. recreation), other vendors,
competitive bargaining, e.g. compulsory waiver in emergency setting
void)
o Scope: must cover AUC

37

Signed before injury

Implied AR: may est no duty, affect CF, or immunize D from suit
1. Implied Primary AR: law sets lower standard of care in case of inherently
dangerous activity (than RPPUTC), no duty to reduce risks but duty not to
increase risks (Avila)
--Applies to sports and some other situations (Murphy, the timorous can stay
home)
--Normal RPPUTC wouldve told player to chill out, here ok not to
--May apply to criminals (e.g. mugger AR that cop might shoot)
2. Implied Secondary AR: waiver like express AR but inferred from conduct
(e.g. getting in car with drinking driver). Overlaps w/CF (Betts, maid trips
over childs toy, should have known the risk). must:
a. Know of risk
b. Voluntarily decide to encounter risk
3. 3. Primary assumption of the risk: by participating, you assume the
risk of the activity
a. Generally, only apply to sports
b. Murphy v. Steeple Chase Amusement Park
"The timorous may stay at home"
c. Primary assumption of risk: being hit by a pitch is an inherent risk of
baseball; being intentionally hit is also a risk Duty: Not to act
recklessly
Why? Because if we demand people play sports as RPPUTC, the
players would be less likely to play the game well and that would
take the excitement out of sports
d. Sunday, assuming the risk of a sport includes inherent risks such as
non-maintained ski slope
Negligent Infliction of Emotional Distress (no physical harm)

NIED: 3 fact patterns:

1. Loss of consortium: a) services, b) society, c) sex. Derivative claim,
cannot rise higher than original claim (e.g. CF may reduce/bar recovery), but
some states treat as independent claim
--Loss of childs consortium (a few states recognize, majority no,
Boucher, parents sued after
child became quad paraplegic)
--Loss of parental consortium (a few states recognize, majority no).
Rationale: multiplies liability, higher costs, invades leg province
--Unmarried cohabitants: depends on juris, Medley
2. Near-miss (fear or shock from risk of physical harm). States differ on
standards:
--Impact rule (e.g. even gravel from car, horse tail brush) (Mitchell,
team of horses
stopped around her but she could not recover
because it was just a near miss; Battalla
abolished impact
rule in NY, overruling Mitchell)
38

--Zone of danger
--Physical manifestations (objective verifiability), e.g. miscarriage, rash
--Medically diagnosable emotional harm, e.g. depression
--No specific rule
3. Bystander (sadness/grief after seeing harm to family member)
--Dillon: flexible standard based on
1 Whether was located near to the accident as contrasted with one
who was a distance away from it.
2 Whether the shock resulted form a direct emotional impact upon
the from the sensory and contemporaneous observance of the
accident, as contrasted with learning of the accident from others
after it's occurrence
3 Whether and the victims were "closely related"
--Thing: firm rule ( ), need presence at scene + serious distress +
close relationship
1 Is closely related to the injury victim (by blood, marriage, residing in
the same household)
2 Present at the scene of the injury at the time it occurs and is aware
that it is causing injury to the victim
3 Suffers some serious emotional distress as a result-something
beyond a normal disinterested witness and which is not an
abnormal response to the circumstances
*Some cts allow delayed perception if scene is unchanged (Dillon type
usually)
*Recovery affected by CF (e.g. dad who lets kid wander off and be hit by
car)
*Close relationship determined by state
4. Relationship + Foreseeability Claims: D behaves carelessly, no
physical injury, but theres a preexisting relationship and as a result P is
upset, which was a foreseeable result of the Ds conduct (e.g. dead body
cases, false positive test results (Heiner), irreplaceable tissue samples, baby
swap; NOT sex tape, Boyles, maybe wrong, or administrability issue)
5. Toxic Exposure [emerging area]: no present disease but > 50% chance
of developing (cts very divided about whether such cases are recoverable,
some states have no case law position yet).
PRODUCTS LIABILITY
1. Merchant
2. Defect
3. Prove that the product was not altered (presumed in most states if you bought
the product through the ordinary sails chain
4. must be making a foreseeable use of product at the time of injury.
1. Can be a misuse, but it must be a foreseeable misuse (standing on chair
and it collapses)
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McPherson v. Buick, Cardozo: duty does not run only to those in privity of
K, allowed buyers to sue manufacturers for negligence. However, when
difficult to establish negligence, P attys used merchantability (but still an
implied K issue with a specific manufacturer). Then overruled need for
privity in merchantability claims, then *Greeman: eliminate verbiage, all
merchants in a distribution chain are strictly liable if they sell a dysfunctional
product (incl manufacturer, wholesaler, retailer). Incorporated into RS2d,
402A: SL for products
SL: chief req is that consumer prove product is defective (3 forms):
1. Manufacturing defect: production flaw,
a. Anomalous product (Different than all the others that came off the
assembly line)
b. Tests:
More dangerous than consumers would expect (consumer
expectation test, p. 645 n2), vs.
Physical departure from its intended design (RS3d, n3)
Challenge for P: proving defect existed at time it left Ds hands. If
product has been subsequently altered (deliberately/accidentally, as
by negligent/rough handling), no claim. Lee, p. 643: proof issue:
only 3 reasons bottle can explode: thermoshock (none), physical
force (none), overcarbonated/glass problem (P gets showing of evid
cuz its left). RIL w/ diff jury charge, doesnt allow B<PL type
determination of breach (SL).
MAY be able to est proof simply by showing product to factfinder,
who will know by nature of product that the defect existed (e.g.
razor sharp edge on toy truck, unless manufacturer can show you
sanded it down).
What if product is destroyed, e.g. car crash? Logical deduction,
rule out other likely explanations
Note: p.647, Mexicali Rose, no duty to provide perfect enchilada
when defect is natural to the food. Most cts REJECT this natural
to the food argument.
2. Design Defect: product itself designed in a way thats dangerous to
consumers (more worrisome to manufacturers, mass liability).
a. Tests:
a. Alternative design must:
i. Be Safer
ii. Be the same cost or only slightly more expensive
iii. Practical (cant make it more difficult to use, or
change the function)
Some: retain consumer expectation test, but problematic
Majority: Risk utility test: if design produces degree of danger
that couldve been eliminated at reasonable cost, product
considered defective. Basically just negligence (showing
40

manufacturer made neg decision in weighing utility). Honda, killer

seatbelt case, P must prove existence of reasonable alternative
design (safer but not much costlier or unworkable) P here failed,
moving release lever closer to driver would make it harder for a 3rd
party rescuer to press, also failed to show it was econ viable (even
though Toyota was using another design, could be different cost
structures, whats price-effective for an expensive car isnt
necessarily so for a cheap car). HEAVY BURDEN ON P, NEED EXP
ENGINEERING TESTIMONY, RS USES BUT NOT ALL CTS AGREE.
3. Information Defect: even if no way to cost-effectively eliminate
danger of design (e.g. ladder, possibility to fall off top step), obligation
to give adequate (prominent, understandable, maybe bilingual/pics)
warning about non-obvious danger that cannot be designed out, to
consumer or learned intermediary (skilled dispenser, e.g.
pharmacist) UNLESS danger is obvious. Liriano, hurt in meat-grinder
where store had removed safety guard: Calabresiwarning need not
just identify danger, may identify alternative, e.g. dont use w/o safety
guard, so there WAS a defect.
Note: still need to show causation, 674n10, but heeding
presumption as to warning, shifts burden to D to show P wouldnt
have heeded warning (like informed consent, reasonable person
standard as to what we think someone wouldve done).
If misuse of product is foreseeable, it is NOT P fault (product should
be designed to take that into account, like Bexiga). But if misuse NOT
foreseeable, theres no liability b/c no defect. CF may still apply
though, e.g. crushing machine.

Products Liability
Strict products liability= liability without fault
o Yet when someone says products liability, dont always mean strict
liability
Products liability can often overlap with negligence (no costbenefit justified precautions, drunk on assembly line) or
contracts
Analytic shift: No longer focus on conduct, look at product itself
o Not interested in behavior of defendant
Who would be exposed to liability for strict products? ONLY IMPOSED ON
MERCHANTS
o All merchants in distribution chain (manufacturer, retailer, wholesaler)
Cuiseneart Macys You
Can sue both Macys and Cuiseneart

41

Yet if you sell food processor to friend/eBay- they cannot sue you
because you are just a casual seller
Joint and severally liable- if you recover from anyone lower on chain, they can
seek indemnification from highest (100% recovery)
In order to have a claim
o 1) Must sue merchant
o 2) Must prove
A) Product was defective
B) Defect existed when product left the possession of defendant
being sued
3 Types of Defects
Manufacturing defect-When the product departs from its intended design
1 in a million
Product can still be defective if no negligence is found
Elements
o Product was in fact in a defective condition, unreasonably dangerous
for its intended use
Test for defect/unreasonable danger: Consumer expectations
test- must make a product more dangerous than consumer
reasonable expects (used by more jurisdictions)
Used in food products cases- did consumer reasonably
expect to find i.e. a bone in their enchilada?
Alternative test: Products Liability Restatement- product has
defect when product departs from its intended design even
though all possible care was exercised in making product
o Defect existed when the product left defendants hands (can use res
ipsa)
Can infer that defect exists at sale/distribution if a) event was of
a kind that ordinarily occurs as a result of product defect, or b)
event was not solely the result of causes other than defect
o Defect was proximate cause of injuries sustained
Design defect
o Every unit of product is vector for liability- dangerous propensities
o Alternative test often used with design defects= risk-utility testdefective if the risks inherent in the design outweigh the benefits/utility
Weight the likelihood of harm, gravity of harm if it occurs against
cost for preventing harm by using different design (includes loss
of benefit in present design and direct costs of alternative
design- production and ads)
Note: Restatement of Products Liability adopts risk-utility test for
design defects (consumer expectations test- not independent
standard for judging defects)
o Plaintiff must/should offer evidence of RAD- reasonable design
alternative
Safer
Economically plausible
Practical- doesnt introduce new problems regarding
products use (i.e. dull carving knife)

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Restatement 3rd of Product Liability- says must offer evidence of

RAD
This almost always requires expert testimony
Honda v. Norman- Seatbelt traps woman who drives her
car intoxicated into body of water.
RAD is not enough- must also show that product was
unreasonably dangerous and foreseeable that it would cause
harm similar to that suffered by plaintiff
o Problems with design defects
Consumers dont necessarily know about design before they use
it
You may cease to expect any better if you are a repeat user (i.e.
industrial press- Knitz)
Information Defects- failure to provide appropriate information (instructions
or warnings) about a product may make an otherwise safe product dangerous
or defective
o Warnings
Used to 1) warn of danger and 2) educate user about safer
alternatives
Subject to risk-utility analysis. Almost always economic, safer,
and practical, yet can be superfluous or counterproductive
No duty exists to warn of dangers that are/should have been
obvious
Warning must be reasonably clear and of sufficient force and
intensity to convey the nature and extent of the risks to a
reasonable person
Sometimes must warn of extend of harm that can result
Danger to small amount of people- duty to warn turns on
magnitude of danger
o Heeding presumption- courts assume that plaintiff would read and
heed warning
o Learned Intermediary Doctrine- warn doctors about downsides of
medication- assume that they will pass it on to patients
Doesnt apply if vendor markets drugs to end-users
o Liriano v. Hobart- Young immigrant hurt on meat grinder without any
warning.

Affirmative defenses
Early products liability decisions hesitated to make Ps
contributory/comparative negligence a defense
Modern approach: whatever jurisdictions standard method of dealing with Ps
negligence is (typically comparative negligence), that method applies to
products liability
Different types of negligence by P
o Failure to discover risk- prob not negligence since P is entitled to
assume that there was no defect at all
o Assumption of risk- modern trend treats this as comparative
negligence- to the event that Ps decision to use the product in face of

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o
o

known risk was unreasonable, it will cause Ps recovery to be reduced

proportionally
No long an absolute bar to recovery
Ignoring safety precaution
Misuse: If P totally misuse the product, D will not be relieved from
liability unless misuse was so unforeseeable that either 1) the misuse
couldnt be reasonably warned or designed against or 2) misuse was
found to be superseding
Third party alteration- no defense if it was foreseeable- Spadone
Hughes- misuse is not affirmative defense; rather, part of Ps
case

Boyle Article
Precedential Arguments
1. Purposive interpretation v. formalist interpretation
a. Purposive- imagine purpose behind rule and determine words in light of
purpose
b. Formalist: explain meaning of word by taking it out of context and
without considering purpose behind word. Then apply that definition
to your facts.
2. Broad v. narrow rule
a. Broad rule- take each phenomena in case and make it as abstract as
you can
b. Narrow- rules in specific case are not capable of deciding another case
that is marginally different
3. General Manipulation of precedent
Policy Argument/Non precedential
1. Judicial administrability
a. Firm rule- easily administered, citizens know the law, another standard
would open floodgates to litigations, undermine the rule, confusion
b. Flexible standard- Rule X= harsh and rigid standard, would lead to
unfair outcome, cannot adapt to changing times, courts hands would
be tied, will allow justice to be delivered on case by case basis
2. Institutional competence- is particular claim suitable for court to take?
a. Courts are competent institutions- issue is suitable for courts to deal
with, needs to be resolved by institution which takes outside expert
advice with firm understanding of changing moral consensus of
society, set up to deal with complex factual issues, to respond to
changing circumstances, and be objective
b. Court are not competent- leave it to legislature, courts should apply
and not make law (threaten separation of powers), legislature is body
that reflects changing public opinion, can use outside experts, used to
dealing with complex matters, cannot have quick fix judicial decision
3. Moral arguments
a. Making moral decisions on formal classification of dispute (two
contracting parties) v. making moral decisions based on substantive
relative social power of people involved

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i. Morality as form (a contract is a contract) v. morality as

substance (why should K be enforceable against person with
unequal bargaining power)
b. Other moral arguments; morality as freedom v. morality as security;
individual v. community; content v. process; individualistic v. altruistic
4. Deterrence or social utility arguments
a. One side argues that proposed action will deter good conduct and
encourage bad behavior. Other side argues the opposite.
5. Economic arguments: cost benefit analysis

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