POLICIES: Compensate injured, preserve individual choice, determine social cost benefit of policy.

OBJECTIVES:Be equitable, wise allocation of

human/economic resources, compensate promptly, reliable, distribute losses, deter risky behavior, incentivize good behavior, minimize fraud.
 INTENTIONAL TORTS: MAJ: Must act with intent to commit the act, not consequences of the act or the offensive/harmful part of the act, otherwise people would easily get off, not dual intent. MISTAKE
DOCTRINE: Under the mistake doctrine, if a defendant intends to do acts which would constitute a tort, it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts upon or
believes incorrectly there is a privilege. If, for example, A shoots B’s dog, reasonably believing it is a wolf, A is liable to B, assuming B has not wrongfully induced the mistake.(see Ranson v Kitner) Remember
though, if privileged, self defense will protect D for reasonable mistakes. INFANCY AND INSANITY: Neither insanity nor infancy is a defense for an intentional tort. (See McGuire v Almy, Insane person did
intentional damage to another person, so is as liable as sane person). However, intent is subjective and requires that the defendant actually desires or be substantially certain the elements of the tort will occur. Consequently,
if the defendant is extremely mentally impaired or very young, she may not actually possess the requisite intent. UNINTENDED CONSEQUENCES: when you deliberately batter/assault someone, you are
responsible for all resulting damages, even unintended damages. Despite that language that there is no proximate cause limit in intentional torts, the court might well refuse to make one pay for say a hospital fire even
though the intentional tort put him in hospital.(things to consider would be the actors intention, the degree of moral wrong and seriousness of the harm when he acted.) Morgan v Johnson- being drunk isnt good defense….
o Battery- *Intentional (desires/sub cert) infliction of a harmful/offensive contact with the person of the P. Harm= pain or injury Offensive= offends a reasonable
sense of personal dignity, based on circumstances, stranger v friend. Transferred Intent: attempt to batter A, but miss and batter B(see Talmage v Smith)…
Similarly, attempt to batter but miss can be assault. Hypersensitive peopleYou can make contacts that reasonable people wouldn’t find offensive, but hypersensitive people
would need to tell you their condition to allege battery. Causation: defendant's voluntary action must be the direct or indirect legal cause of the harmful or offensive contact, but
defendant need not herself actually contact the victim. Vosburg v Putney- D intended to kick P, and tortfeasor must take victim as he finds him and cover all damages..playing?
Alcorn v Mitchell-spitting in face≠harmful but =offensive. Mohr v Williams-D acted w/o wrongful intent and wasn’t guilty of negligence but still committed bat and ass bc he
wrongfully/unlawfully operated. Garratt v Dailey- D child intentionally moved chair so P adult hit ground, P guilty of battery even without intent to harm, bc of sub. cert.
o Assault- *Must act with intent (sub cert.) to cause harmful/offensive contact or imminent apprehension of such contact, and the person is reasonably put in
such imminent apprehension. (anticipation, not fear) Watch out!: its assault when you say, watch out for that falling plank! Or if u make a snake noise behind someone in
a dessert, although there are no cases like this, although you could argue it was mere words too. Transferred Intent: try to assault A, instead assault B. Mere words: not
enough, but mere words+circumstances and others acts✓Conditional threats: are assault (get out or I kill you) unless you have a legal right. IdeSvWdeS-actual touching of
P is not required for assault. Tuberville v Savage-‘if u weren’t old, I’d hit u’≠assault. Brower v ackerley- telephone threats≠ assault bc not imminent)
o Trespass to chattels- Defendant's acts must intentionally: (1) damage the chattel, (2) deprive the possessor of its use for a substantial period of time, or (3)
totally dispossess the chattel from the victim. Trespass to chattel does not require that the defendant act in bad faith or intend to interfere with the rights of
others. It is sufficient that the actor intends to damage or possess a chattel which in fact is properly possessed by another. Intel Corp v Hamidi-w/o actual
damage, there is no cause of action for tres. 2 chattels. Harmless use or touching is tech. tres 2 chat but w/o dispossession is not actionable.
o Trespass to land- D (a) intentionally enters, or causes a thing or a third party to enter, the land in possession of another, (b) intentionally remains on the land
after permission to be on the land is removed, or (c) intentionally fails to remove from the land an item that the defendant is obligated to remove.
Doughertyv.Stepp-D went on to P’s land to survey it. Every unauthorized entry on land is trespass∴damages for even bent grass, property right was protected at the expense of
innocent mistake (Plaintiff does not have to show any harm to the land or to the person to recover for trespass to land. The injury is in the violation of the plaintiff's right to exclusive possession of the land.)
o False imprisonment- *The defendant unlawfully acts to intentionally cause confinement or restraint of the victim against their will within a bounded area.
*Accidental confinement: is not included and must be addressed under negligence or strict liability. False imprisonment can exist with: an unfounded assertion of legal
authority (such as impersonating a police officer), or by confiscating someone's physical property in order to keep the person from leaving, and even from an intentional breach of
a duty to release people, such as keeping someone in a mental institution longer than the state mandated sentence or the failure to place someone in court promptly following an
arrest. Words can restrain person if he fears disregarding them, even if no physical restraint. Duress: false imprisonment will result from duress of person or property, but threats
of duress in the future are insufficient. Moral pressure to leave is insufficient, must be actual restraint. Transferred intent does apply. No reasonable way to exit: False
imprison. exists if there is no reasonable exit (unknown, risky, discomforting). P can’t go where he wants: normally not enough. Escape: Generally held that false imp.
invites escape, so if P hurt escaping, D is liable. Knowledge Majority: P needs to have knowledge of detention (see Parvi v City of Kingston) 2nd§42: allows recovery if
there is knowledge or if damages happen even w/o knowledge. Contra to the Re: some hold a child subject to false imprisonment even if the child was neither aware of the
confinement nor harmed (see Kajtazi v Kajtazi). Bird v Jones- total detention, not partial, is req’d to give rise to false imprisonment. Coblyn v Kennedy’s- statute allowed
detainment on reasonable grounds, in reasonable manner and for reasonable time…D had honest suspicion, but reasonable person would not view P’s conduct as shoplifter like.
o Conversion-*Restatement § 222A defines conversion as “an intentional (like you just need to intend to sell or take it) exercise of dominion and control over a chattel which so
seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” *Only very serious harm to the property
or other serious interference with the right of control constitutes conversion. * Damage or interference which is less serious may still constitute trespass to chattel, basically ask,
will you be asked to pay for it (conversion) or just repair the damage to it (chattels). *Purchasing stolen property, even if the purchaser was acting in good faith and was not aware
the seller did not have title, constitutes conversion by both the seller and innocent buyer. Moore v Regents of U of C- typically if you abandon something, you can no longer sue
for conversion.
o IIED- *Physical injury or severe mental suffering caused by outrageous words or acts of the D done with intent/sub cert/(or even recklessness) to cause ED,
some require extreme distress to result. Objections: hard to tell ED, fictitious claims, flood gates, perjury from overstating/lying about facts. Outrageous=2nd
§46“beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.(ah, but from who’s perspective? Black or white?)”
The vulnerability of the victim and the relationship of the defendant to the victim can be critical. Mere insults: is not enough. Third partiesMaj: only if she is (1) a close
relative of the primary victim; (2) present at the scene of the outrageous conduct against the primary victim; and (3) the defendant knows the close relative is present. Re: is
somewhat less restrictive, requiring only that a primary victim's immediate family members be present and can prove the elements of the tort. Non-relatives who satisfy the
elements of the tort can also recover under the Restatement if they are present and suffer physical manifestation of severe distress. Common carriers: Common carriers and
innkeepers are liable for intentional gross insults which cause patrons to suffer mental distress. There is no requirement the defendant behave in an extreme or outrageous manner
or that the victim suffer extreme distress. Wilkinson v Downton-extreme conduct causing physical injury is actionable, even if it’s just a joke.
 DEFENSES TO INTENTIONAL TORTS:*X pushes Y, Y overreacts and tries to kill X. Some crts say Y can use deadly force and some say he must retreat if possible.
MorganvJohnson- court rejected the D’s argument that the P’s intoxication should be a defense to an intentional tort.
o Self-defense: must use the force reasonably (in eyes of victim) believed (not always correct) to avert the threatened harm. Duty to retreat: Most crts refuse to create duty before
using non-deadly force, even if you could retreat.
o Deadly force in S.D.: Most crts say you can use deadly force in SD only if you reasonably believe you are being threatened with deadly force which can only be prevented
with deadly force. Duty to retreat: Some Crts: require victim of deadly force to retreat if it is clearly safe to do so (unless home), Most: say you can use it even if you could
retreat. Rape: most allow it. Courvoisier v Raymond-can use force against those endangering you & those a reasonable person in same circumstances would believe is
endangering you.
o Defense of others: Basic idea is you have right to use the same force to defend other that you could use to defend yourself. Mistaken Defense of others Most&Re.2nd say:
you have privilege to act upon your reasonable perception…Less say: you better make sure you are right or you are the aggressor too.
o Defense of property: Can’t use deadly force for property, dangerous means to protect property will be highly scrutinized. Even slight force is excessive if a verbal request
would work. Wrong party: Force in defense of property is only a defense when it is actually directed at a wrongdoer. A reasonable mistake that an individual has wrongfully
interfered with property is not an excuse. BirdvHolbrook- spring guns used to injure people, not just as deterrence (no sign), so not ok. KatkovBriney-using deadly force on
unoccupied property is unreasonable. M’llvoyvCockran- if trespass is nonviolentask to leave, don’t hurt, but don’t ask if it won’t work or isn’t harmless.
o Consent: *Express Consent: can consent through words or gestures. *Implied Consent: when the conduct of the individual would make reasonable person think you consented.
Informed: consent must be informed, trickery/force/lack of info/fraud will make it void. Words/gestures/conduct- Most crts say D is privileged to reasonably assume consent
with P’s. *Athletic injuries: are not consented to if outside scope of the game and deliberately illegal (see Hackbart v Cincinnati Bengals). Minors- cannot consent and you
 can always argue you didn’t consent to THAT. McPherson2- actionable when husband fails to tell wife of medical condition. Generally- no liability for stds if no reason to know
you had it. O’BrienvCunard- overt acts and conduct created consent, despite lack of actual consent. HusdonvCraft-(not in case, but there is a another view that you can’t gain
right of action by participating in illegal act), this court said: law was intended to protect participants in boxing contests and P was a member of that group. The promoter is liable.
Policy argument here was to protect 18yr old boxer from promoters. Invalidating Consent: Children, depending on age, may consent only to certain things. Insane/Retarded/Drug
&Alcohol induced individuals normally cannot legally consent. Duress Fraud, consent is invalid if it misrepresents an essential aspect. Physical threats to consent are invalid,
economic pressue is ok. Illegal acts, 1 approach: a person cannot consent to a criminal act; the consent is always invalid. 2 approach: Restatement holds that a person can consent
to a criminal act for purposes of tort liability. The consent is still valid except where the criminal law is specifically designed to protect members of the victim's class.
o Consent Med. Treat: Generally, doctors do what a reasonable patient if conscious would consent to under emergencies (assumed consent). Unanticipated problems: can’t be
consented to in advance, so ‘substituted consent’(ask relative) is very common and well endorsed although if it goes against expert medical advice, some crts will supersede
relative decision and allow surgery, and some courts will provide immunity to doc. who is told not to operate. W/o relative, cases support ‘limited privilege’ to extend surgery
within consented incision unless involves destruction of bodily function. Some say there is implied consent to an extension; this is based on the exigency of the situation based on
what reasonable patient would consent to.  Same w/ unconscious patient in emergency. Nowadays, disclaimers are very heavy and say dr. can do what he thinks is necessary.
MohrvWilliams- consent to operate on right ear, not left. Battery even though properly done.Informed consent: consent must be informed, modern courts treat absence of
informed consent as grounds for negligence rather than an action for battery.
o Recapture of chattels: General rule is to use reasonable force to get it back, limit being grievous bodily harm, if in hot pursuit. 2nd §102-06 says use reasonable force if you are
entitled to immediate possession, you demanded return was refused and you’re in hot pursuit. Innocent party: If force is directed at an innocent party, privileged to possess the
chattel, or against one acting out of a bona fide claim of right, whether or not such right is ultimately vindicated by the courts, the actor is liable even if the mistake was
reasonable. [See Restatement §§ 101-104.] Modern variations: landlords can only recapture homes when they are peaceful, otherwise could become very violent. See Kirby v
Foster- P injured when D used force to get back money he had given to P. D cannot use force to recapture chattel that is rightfully P’s.
o Insanity: Ultimately, it’s a policy choice to hold them liable, we need to assign the loss to someone, may be different if they are severely retarded (sucks when they are poor/have
already paid enough) Mcguire v Almy: We tend to hold insane people liable bc 1 want to incentivize caretakers 2 compensate people injured 3 avoid cost of determining
people’s mental state 4 limit people feigning insanity. Breunig v AmericanFam-had a history of delusion, so insanity defense did not work, it was unreasonable to drive. Gould-
ordin. mentally disabled person is liable for torts, but when he is institutionalized and injures a caretaker, the injured person can foresee the danger and had express knowledge of
danger and is not is not “innocent,” plus almany incentivizers are gone.
o Necessity: normally defense to intentional trespass. Public-injure private party interest to protect community, needs to be immediate necessity and act in good faith for public,
and is complete defense Private- indiv. injures private party for private interest valued greater than injured property. But unlike public, he is liable for damages. Ploof v Putnam-
privilege to enter land and use chattels if there is private emergency (like family life here). Vincent v LakeErie-having deliberately availed himself of P’s prop, as the storm gave
him the right to do, D was liable for injury he inflicted on the warf.
 NEGLIGENCE: In General: to recover1. A duty- on the part of the D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury.
2. Breach of that duty by the D, 3. Causation- the breach is the actual and proximate cause of P’s injury, 4. Damage. (Cooley v PublicService- when2 classes of people can’t both be protected, the class
most likely to suffer greater harm should be protected even at expense to other class.)
DUTY: General Duty: General duty to act in a reasonable manner. Generally the defendant owes a duty to foreseeable victims for foreseeable harm. Special Duty issues:
(1)Courts general refuse to impose liability for doing nothing b/c its hard to impose, infringes individual liberty, and has merely failed to benefit the victim and hasn’t hurt him.(Hurley v
eddingfield-Dr not liable for refusing to render medical services)(2) those who act and create a risk of injury to others, do have a duty to exercise care to avoid injuring others. Defendants
choice to engage in risk creating conduct for his own benefit imposes the reciprocal duty to exercise due care toward those who may foreseeably be injured by that conduct see 2nd §302.
No Duty EXCEPTIONS: Promise: Old rule  mere gratuitous promise to render service does not create duty. Newer rule  cases such as Marsalis find that D is liable for not
living up to his promise to keep the cat, and therefore make P go through painful treatment. Land owners: see back of Epstein. Special Relationship to victim: Courts impose duty
to aid (rescue) based on relationships. E.g. Common carriers, innkeepers, businesses that hold themselves open to public, employer and employees, schools and students, landlords and
tenants, custodians and their custodies, co adventurers. (Kline v 1500 Mass ave Apartments- duty was placed on landlords to take steps to protect tenants from foreseeable criminal acts
committed by third parties. “obligated to minimize risks to his tenants”). (Peterson v San Fran Comm. College-college had duty to protect student against foreseeable criminal assault that
took place in broad day light). Wagner v International- liable for rescuers if one who created apparent peril; peril is imminent; reasonable person known of the peril; rescue was not reckless. Special
relationship to perpetrator: Courts like to impose duty to exercise reasonable care to control one person to prevent him from injuring other. E.g. Parent and child, employer and
employee, and especially those in charge of mental patients and prisoners. This is greatly based on the unique position the D is in to prevent the harm. Has its biggest impact with
(1)potential target is identified(Tarasoff v. Regents of University of California, in which the plaintiffs asserted that the defendant therapist had a duty to warn them or their daughter
of threats made by the psychotherapist's patient and relationship to either was sufficient) (2)the psychiatrist facilitated the commission of crime (Lungren v Fultz where doctor helped
patient get guns back) (3) when a promise is breached to future victim.(Long v Broadlawns- where they promised to call when husband was released, but never did) Thompson v
county of alameda- different from Tarasoff bc the potential victim was general public, no duty. Duty of public utilities/gov: in general, no duty owed to particular plaintiff. Duty
based on innocent creation of risk: If you are non negligent and create a risk, must warn others. E.g. truck is disabled, must warn on-coming traffic. Likewise, if you non
negligently injure someone, you must reasonably assist them. This is based on risk creation rationale, society let you create the risk, so you should minimize the consequences.
(Montgomery v National Convoy-if you create a danger, you must warn those who might be injured adequately) Duty based on gratuitous service: once you decide to get involved,
you assume a duty of care, even though you could have walked away initially. Based on idea that you are noble, but that doesn’t mean you can mishandle. Traditional viewcan’t leave
victim in worse position that she started in, Modern viewjust act reasonably. Good Samaritan statutes limit this type of liability.(Moch v Rensselaer- Parties did not originally intend
that D should be liable to individual members of public, might be different if D’s conduct would normally result in an injury to P) (Erie v stewart- company established custom of due
care and person has relied on it, the company has a duty of care and if it withdraws service must warn)(Coggs v Bernard- P entrusted D with goods, D accepted and damaged goods, D
liable) Negligent entrustment: Negligent entrustment cases involve misfeasance by the defendant. The defendant's liability is premised on supplying a potentially dangerous
instrumentality (such as a car or gun) to a person the defendant knows or should know is not fit to handle it. Risk Creation EXCEPTIONS: Some say there are none (see Heaven v
Pender). Common ones include: (policy reasons) limiting liability for serving alcohol to intoxicated patrons (At common law, neither sellers of liquor nor social hosts were liable to
those injured by those to whom they served alcohol. Courts and legislatures have been reconsidering this common law view. Several have imposed liability on commercial suppliers of
liquor. A few went further and determined that a social host could be liable to a third party injured by a drunken guest. These decisions are controversial and raise complex policy issues.),
secondary economic losses, injuries that occur on others’ land. Good reasons to create duty: Foreseeability-foreseeability of harm weighs heavily in favor of imposing a duty bc we
should avoid foreseeable injuries to others. Morality-very persuasive when the defendant is in a particularly good position to prevent harm. Reasons to not create duty: Excessive
burdens on actors, e.g. wont make people do broad things when others are better suited to do it (hospitals warning patients of all risks vs doctors doing that…see Kirk v Michael
Reese). Chilling effects, Administrative problems. Policies. Achieve rescuer status: (from McCoy v American Suzuki- (1)D was negligent to person rescued & such negligence
caused peril or appearance of peril (2)the peril or app. of peril was imminent (3)reasonably prudent person would have concluded peril existed & (4) rescuer acted w/ reasonable care in
effectuating the rescue.
BREACH-Failure to exercise reasonable care under the circumstances (time/custom/statute/expert(an expert skier will norm, not always, be held to reasonable skier standard
bc we don’t want to ruin the ‘single objective standard’ otherwise we would have to evaluate everyone’s level of expertise, however (1) it would be dif. if one was acting as an expert
(like ski patrol) (2)the jury is likely to have this effect them whether they are told to or not)/other facts)Bolton v Stone- if risk is minor enough to outweigh utility the act is not negligent
(we can put people at risk, just not unreasonable risk.) Common carriers: Andrews v UA-airlines have very high standard of care, the case turns on whether D had done all that human care, vigilance, and
foresights reasonably can do under the circumstances. Internal Standards: if we hold people to higher internal standards, then we risk people lowering standards. But, we choose them for a reason
+ they are the experts and they are the ones that take that level of care. Standards of Reasonableness: Custom: is downgraded in 3rd Re. custom-often means not neg, but isn’t law.
Titus v Bradford- old view- standard of negligence is what the industry custom is. Titus: they found that if something is customary, no matter how dangerous, the court will not find negligence. Mayhew v
Sullivan- one does not exercise care by following industry custom if the custom is itself negligent.TJ Hooper- The industry has lagged in installing receivers, but they are still required
by reasonable prudence to install them. Hand Formula: Burden of precaution<Chance injury results*gravity of injury. Statutes: Negligence per se=harm needs to be one the
statute is meant to avoid and victim needs to be the intended beneficiary. Rationale is that the reasonable person obeys the law. MAJ: the statute replaces the usual “reasonably prudent
person” standard of care. Maj: unexcused violation of relevant statute is n.p.s., but party may offer excuseincapacity/lack of knowledge/ inability to comply/emergency not of actors
making/compliance is worse/children. Min: the standard of care remains that of a reasonably prudent person and the relevant statute is simply admitted for the jury's consideration in
determining whether D exercised reasonable care. Others: hold that statutory violation creates a presumption of negligence. Others: it is merely evidence of negligence and can lead to
not hold liable even if there is no excuse offered. Osborne v McMasters- no label on poison, clerk was liable bc there was a statute saying ‘need label’ meant to protect people of this
type for injury of this type. Martin v Herzog-The unexcused violation of a statute is negligence in itself. Uhr v East Greenbush- Don’t want to disincentivize schools for checking
scoliosis, even if they violated statute. Licensing Statutes: Most courts refuse to use licensing statutes as the standard of care because the lack of a license itself does not establish the
lack of due care. BrownvShyne- Chiro. had no license as req’d by stat, but vio of stat was not prox cause of injury, still need to prove he didn’t exercise proper care. RIL: (1) an
accident that normally does not happen without negligence; (2) exclusive control of the instrumentality by the defendant (liberallymost likely D is responsible);
and (3) absence of voluntary action or contribution by the plaintiff. P need not explain away all possibilities as long as she shows that such an accident ordinarily
does not occur without negligence. P must convince the jury that each of these factors more likely than not exists. It is a form of circumstantial evidence, so normally
won’t use if you have other evidence, circumstantial or not, bc then you would prob just use that. D's superior knowledge is a compelling justification for the application
of res ipsa loquitur, most courts and the Restatement do not require that the defendant have greater access to the facts than the plaintiff for the doctrine to apply. RIL will not work: if
P’s negligence helps create the danger, but will work if you are negligent and get hurt, but did nothing to create the danger. Approaches: (1) RIL merely provides evidence to
support an inference that the D was negligent, but does not compel a finding for the P even where there is no rebuttal evidence, (2) RIL shifts burden of proof on the
defendant to rebut, then P can re-rebut. (3) Presumption of neg is raised, and w/o excuse, court must find negligence as matter of law. Byrne v Boadle- P gets hit with
barrel, more likely than not it was bc of D’s negligence. Walston v Lambersten- ship lost at sea is not RIL because sea has a mystic, awesome quality.
ColmenareVivas v SunAlliance-Although Westinghouse did maintenance on escalator, D had a non delegable duty over them to maintain them in safe condition, so RIL was met.
YbarravSpangard- very unique and not universally accepted…normally 2 unknown defendants won’t cut it.Bc all of defendants would be motivated to protect each other, the court
departs from the normal RIL doctrine that the P must show that the cause of harm is under the exclusive control of the defendant in order to smoke out the evidence. Defenses: attack
1-3, collusion?. Reasonable Man: Considers: foreseeable risks vs utility(§291), extent of risk (§293), likelihood 1:10 or 1:1000(§293d), alternatives(§292c), costs involved.
Physically disabled: is ok, but not oafish/hasty/awkward/mentally ill. Mental capacity- 2nd §283B says: people w/mental incapacity held to same standard of ord. people
Beginners: no beginner standard like drivers ed. Child- held to reasonable person of like age/intel/experience under the circumstances. High Risk/adult activities engaged by child
will result in adult standard of care. Daniels v Evans- minor participates in adult activity, the lower standard will not apply. Vaughn v Menlove-‘best judgment not good enough’ arg
won’t escape liability. Hammontree v jenner- D did not have a reason to expect to have a seizure and was therefore not liable. Roberts v Ring-can’t use physical infirmities to escape
negligence, if anything, makes easier to be negligent. Daniels v Evans-when minor participates in adult activity, lower standard will not apply.. Fletcher v Aberdeen-blind person is
entitled to walk the streets too, and he was reasonable, so d was liable for failing to replace barrier to hole. Eckert v LIRR- not contrib. negligent for saving child on tracks bc act wasn’t
rash/reckless. Blyth v Birmingham-D did what reasonable person would do under circumstances, D can’t be liable for result of unusual conditions. Medical Malpractice: A doctor
must use that degree of skill and learning which is normally possessed and used by doctors in good standing, in a similar practice, in a similar community, and under like circumstances.
Note: some courts hold Acceptable approaches: As long as one of the accepted approaches is followed, a doctor is protected from malpractice liability. Further, the relative merits of
each approach are irrelevant provided there is an established custom supporting the method employed. Sometimes what constitutes an acceptable method is debatable. Informed
Consent: Canterbury v Spence- Dr has duty to disclose, the standard is what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing
significance, if the prudent person could reasonably be expected to decline the treatment if there risks were disclosed, then there is sufficient causation. 2 exceptions: unconscious, or
doing so poses threat to patients well being(very limited). Professional rule(unacceptable to Canterbury)must disclose risks of a given procedure that would customarily be divulged by
doctors in good standing in the relevant community. Patient rule(Canterbury) a physician is obligated to disclose to a patient all material risks involved in a given procedure. Lama v
Borras- (PR court, but indistinguishable from virtually all common law jurisdictions) A doctor must use that degree of skill and learning which is normally possessed and used
by doctors in good standing, in a similar practice, in a similar community, and under like circumstances. 2 exceptions to disclosure- incapability and disclosure poses threat to patient
specialists to national standard of care.
CAUSATION. Causation requires showing a nexus between the defendant's unreasonable act and the injury. To assure liability will only be imposed when P’s loss
is attributable to the D’s conduct, we have 2 requirements: Cause in Fact and Prox. Cause.
Cause in Fact: ‘But-For’ If D didn’t perform the negligent act, would P still have suffered the same injury? Two ‘but-for’ causes: don’t need to be the sole ‘but
for’ cause, just a ‘but for’ cause. Weakness: sometimes it’s very difficult to hypothesize what would have happened, so case specific evidence can make or break the
analysis, and what do you do when X and Y’s actions were individually sufficient to cause injury, so neither action is a ‘but for’ cause. such a scenario
(unsatisfactory results) requires us to use the…‘Substantial Factor’ analysis if the jury finds the act was “a material or substantial element” in producing the harm.
(if one fire burns it first, or one fire is huge, maybe the other is not substantial element and shouldn’t be held liable, like poisoning X’s drink but Y kills X before he
drinks it, so you’re not liable) (see Anderson v Minneapolis, sufficient but not necessary dilemma, 2 fires merged into one and burned P’s property so it seemed fair
to hold him liable w/o but for. Kingston v Chicago, where they held defendant liable bc indivisible injury, and if other fire was natural, D wouldn’t be liable. Shifting
burden of proofSummersvTice stands for the proposition that where 2 or more defendants commit substantially similar negligent acts, one of which caused injury
to P, the burden of proof shifts to each defendant to show that he did not cause the harm, otherwise they are both jointly liable for everything which means someone
who did not commit the crime is liable  but better than leaving P with nothing. Some accept Summers proposition, others say no!, still need but for analysis, so P
loses bc cant muster proof. Causation in DES cases(exception to showing prox. cause)Market Share Liability- Some don’t accept, so P loses. Sindell v Abbott
Laboratories say we need (1) P can’t identify individual manufacturer, (2) product is same (3) Can they show they are not responsible? (4) substantially all the
tortfeasors in front of us. Sindell says sue a number of manufacturers and hold each liable based on proportional share of DES it sold in relevant market. If P can sue
everyone, this will work, but P realistically can’t. 2 ways to interpret Sindell’s payment scheme 1. Pay 10% of damages, or pay 10/60 of damages. Abel v Eli Lilly-
P can join all defendants who might have sold the drug ingested, a D may avoid liability by proving it did not manufacture the particular pill, all other D’s are jointly
and severally liable. Hymowitz v EliLilly- P who proves that she was injured by the DES recovers from any defendant who participated in the US market for DES,
recovery would be in proportion to national market share (which is better bc it is hard to define “market” and worry about drugs moving around, etc), if some D’s are
not before court, P will not fully recover, and NY bars any maker of DES from proving that it did not make the DES that injured the P. Using expert testimony to
prove causation Frye v US: as long as expert testimony is generally acceptable as reliable by scientific community. Daubert v Merrel Dow- Has to be the kind of
evidence that is scientifically testable. Oxendine: evidence is more or less for the factfinder to determine, this is on real decline. Causation in Cumulative Issues
Around asbestos for years from 6 companies and I get asbestosis. This is hard to use but for, so lets us substantial factor test. If company 6’s exposure was small,
maybe it won’t be a substantial factor.(see Rutherford v Owens-Illinois) We didn’t use market share for these cases bc its hard to tell a market for something that
takes place over years, and bc realistically, they all created the risk, not just one person like in DES cases. Unlike market share, this approach would tend to hold each
defendant joint and severally liable for all the damages. Causation in lost chance casesSome courts apply this instead of But for. If X would have died anyway
49% of the time, it is likely P will never win under but for bc it was not more likely than not…so we need something else.(if it was 50% or greater chance of survival,
P might want to try but for causation bc then he can recover everything, not just % difference. Herskovits v GroupHealth: decedent died of lung cancer and evidence
shows that he had a 14% better chance of living (39v25) with a prompt diagnosis. The court sent it to jury under ‘substantial factor’ instruction. In these group of
cases, many courts have chosen to treat the injury as the lost chance, and allow the jury to value damages in proportion to the chance lost due to the defendant
negligence (aka, hold them liable for 15% of wrongful death action, this will either under-compensate, or overcompensate) Future harm: Doc doesn’t diagnose
cancer, then it is diagnosed and removed. Now patient has 40 % better chance of getting cancer again. Some court says you can sue now, other say you must wait for
the actual injury to occur, regardless of whether the court accepts lost chance doctrine. XX Zuchowitz v US, Reynolds v Texas If a negligent act is wrong because
it increases the chances a particular harm will occur then we will assume that there is a causal link, (hospital prescribed wrong dosage, woman fell down stairwell)
Proximate Cause: 1.In Re Polemis-Direct cause testD is liable if his conduct is direct cause, opposed to remote cause, of P’s injury. The direct test would find
proximate cause satisfied whenever the defendant's negligence caused the injury without any intervening force. In re Polemis- guy dropped board and it caused a
spark, and exploded the ship. Explosion was unforeseeable, but negligence of dropping it was direct cause. 2.Foreseeability: Perhaps best approach, ask: what are the
risks that make the defendant’s conduct negligent in the first place? What unreasonable risk should the D have anticipated at the time she acted, and compare that risk
to the injury that actually happened. 3rd Restatement endorses this approach. The extent and the precise manner in which the harm occurs need not be foreseeable…
see United Novelty v Daniels. If the intervening force is characterized as superseding(see below), proximate cause is not established even though the type of harm is
foreseeable. 2A. PalsgrafCardozo held that the duty to avoid injuring others extends only to those risks the actor should anticipate from one’s negligent act. Since
she was an unforeseeable plaintiff to whom no reasonably risk was to be anticipated, Palsgraf was denied recovery. Cardozo used duty analysis to reject Palsgraf
claim. Andrews says she was owed a duty and analyzed the case in proximate cause terms. Says that there is no special orbit to look at to limit liability, instead we
owe the world a duty to be reasonable, a wrongdoer should be held liable for all the proximate results of his acts, whether or not the injured person or manner was
foreseeable or not. He wants to ask whether D’s conduct was a substantial factor in producing the harm. 2B. Wagon Moundheld that P could only recover for the
injuries that the defendant should have anticipated at the time it released the oil. It was not liable for the unforeseeable fire which destroyed the dock. 3.Standard
guidelines for proximate cause: (1) If P’s injury is truly beyond the type of harm to be expected from the defendant’s conduct, the P will prob go uncompensated.
(2) If injury to P is foreseeable, the D is liable for the injury sustained, even if it is more serious than originally anticipated, “D takes the P as he finds her” so if she
has a ‘thin skull,’ then you are liable for her skull. (3) If the risk eventuates in an extraordinary way, you will still be held liable. (e.g. United Novelty Co V Daniels,
D allowed P to us gasoline to clean room with an open flame, rat caught fire and ignited the gasoline and killed employee. The manner was unusual, but an explosion
was exactly the type of accident to be anticipated for using the gasoline. D is liable!) (4) Injury need not be likely to happen to be foreseeable in proximate cause
analysis. E.g. I throw a flower pot out window with 2% chance it hurts someone, I will still clearly be held liable and won’t be able to escape on proximate cause
grounds. Defense of superseding Cause: D may argue that even if she was negligent, a later act supersedes her negligence and breaks the causal chain. Generally,
courts will not hold the negligent party liable when bizarre unforeseeable (intentional torts) events give rise to a risk different from the one the defendant should have
anticipated. When the risk of criminal conduct is foreseeable, it will not cut off the liability of a defendant who negligently exposes the plaintiff to that risk…see
Ilines v Garrell) In WatsonvKentucky& Indiana Bridge, if he negligently threw match the railroad would be liable for fire, if he did it maliciously, they wouldn’t be.
Economic rationale behind foreseeability approachwe want to incentivize people to avert risks since he will incur those costs, but he can only consider the liability
consequences of risk if he can foresee them. Imposing liability for unforeseeable risks will not affect his choice. How defendant won’t pay even if the harm is
foreseeableSay a guy negligently causes a factory fire which is foreseeable, and then the workers obviously lose their wages. D won’t be responsible to pay for the
wages bc the secondary economic losses is too great. In Ryan V NewYork Central Railroad, the court restricted liability for fire damages to the first adjacent
property burned bc it wasn’t the proximate cause…but we know the real reason was too great of economic liability.

DUTY AND PROXIMATE CAUSE: CLASSIC PROX CAUSE SITAUTION: refusing to impose liability for unforeseeable consequences CLASSIC DUTY LIMITATION: refusing, for policy
reasons, to impose liability for ones that are foreseeable.

DEFENSES TO NEGLIGENCE:
Contributory Negligence: Complete defense, “conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection, and
which is a legally contributing cause . . . in bringing about the plaintiff's harm.” (Restatement § 463) 3 exceptions: 1. Not available to the D if the P’s injury did not result from a hazard
w/ respect to which the plaintiff failed to exercise reasonable care 2. Not a defense to intentional torts, willful or wanton conduct, or reckless misconduct. 3. Violation of some statutes,
b/c the point of some statutes are to place entire responsibility on the D to protect the class of people P is in (characteristics of these statutes: strict liability/contrib. negligence not a
defense/assump. of risk not a defense). Distinction:(contributory neg vs avoidable consequences): If P fails to act as a reasonable person in order to mitigate his damages, he may be
barred from recovering for the damages that could have been avoided..see Derheim they mitigated bc no seatbelt. Butterfield v Forrester- P’s claim dismissed, showed no ordinary care
to avoid D’s negligent obstruction in road. Gyerman v USLinesCo.- negligent stacking of sacks would not have been corrected if he said something, so P does not appear to have been
contributorily negligent, although at a certain point of risk, the reasonable worker will walk away. LeRoyFibre v Chicago- Property adjoining to someone is subject to some risks, but
it is not subject to risks created by the wrongful use of the railroad’s property or its negligent operation of trains on the property. It would be impossible to impose a duty to use your land
in such a way that other’s wrongs can’t harm it.
Last Clear Chance: The last clear chance doctrine instructs the court to ignore the plaintiff's contributory negligence if the defendant's negligence occurred after the
plaintiff's contributory negligence. (see Davies v Mann). D was neg, and P was contrib. negligent, and P placed himself in helpless or inattentive peril, and D has last clear chance
to avoid the accident, P may be able to recover despite his contributory negligence. Guidelines for last clear chance are: the def. has to be aware of the danger or should know the
danger, you are aware or should be aware the plaintiff cannot avoid the on-coming danger, and you can avoid that danger, then the persons contributory negligence in placing themselves
in that position will not shield you from liability (see pg 352-53 for Re2nd) Fuller v Illinois- Train hits wagon and man even though it easily could have stopped in time, and is solely
responsible for it despite contributory negligence. WashingtonVJohnson-if purposely put urself in danger, last clear chance won’t work as a way out.
Imputed Contributory Negligence: X is negligent and hurts Z, Y has a special relationship to X. Now Y is vicariously liable to Z or is barred from recovery against Z if X is
contributorily negligent. MillsvArmstrong- Boats crash, both are negligent. Just bc the driver’s employer cannot maintain an action if he were injured while in an omnibus operate by
his driver, that does not mean that a passenger should not be able to do so.
Assumption of risk- Unlike contributory negligence where you do not need to be aware of the danger a reasonable person would be aware of, you do need to have
knowledge or awareness of the particular danger involved. 3 basic elements: plaintiff must (1) know a particular risk and (2) voluntarily (if no other alternative, then
its not voluntary) (3) assume it. Express Versus Implied Assumption of Risk: Express assumption of risk exists when, by contract or otherwise, a plaintiff explicitly agrees to
accept a risk. Implied assumption of risk exists when the plaintiff's voluntary exposure to risk is derived merely from her behavior, and not from explicit assent. LamsonvAmerican
Axe- worker couldn’t recover bc he assumed risk, he knew of the danger and voluntarily kept working. MurphyvSteeplechase- Flopper made people fall, so P got on ride, and fell and
sued D for negligence. P assumed risk bc P saw dangers of ride, and voluntarily got on it. All risks were evident, so no sign was needed, and it wasn’t that dangerous to be closed.
Obstetrics&gynecologistsvPepper- Binding arbitration agreement was no upheld bc no one explained to P the terms of the agreement.(courts will be most suspicious about cases
where you are in an emergency and sign everything…although would a month even make a difference?) Russo v Range- they say ticket isn’t enough to assume risk even if there was a
warning, you still need to communicate the risk in a way that is more than fine print. Marshall v Rain- can’t say someone assumed the risk when they are doing something they have a
right to do.Dalury v S-K-I- essential public services are not the kinds of things we want to release from liability, see pg 375 for criteria. Seigneur v National fitness- clause
unambiguously excused the defendants, and they said it wasn’t an activity of great public interest nor practical necessity. Maddox v City of New York- Maddox knew about the field
conditions and played anyway, and since he was a pro ball player, he was fully capable of appreciating the risk, so he assumed it.
Comparative Negligence: comparative negligence is normally a creature of statute. In almost all states, contributory negligence has been replaced by some form of
comparative negligence, often called comparative fault [See Restatement (Third) of Torts, Apportionment of Liability § 7, endorsing comparative negligence.]
Difficulties include: all responsible parties need to be there/specific % is hard to assign/last clear chance and assumption of risk/willful misconduct. Last clear
chance: most juries will find the fact that you avoided the last clear chance will make your negligence seem worse, but certainly will not make you completely 100
percent liable. Assumption of risk: The modern trend is to allow implied assumption of risk to be absorbed into comparative negligence. This allows the jury to
treat assumption of risk as a partial defense. KnightvJewett where P broke little finger playing football bc of reasonable implied assumption of risk Pure form-
plaintiffs can recover some percentage from liable defendants regardless of the extent of their own negligence. Modified Form- plaintiffs are allowed a partial
recovery just as in pure comparative negligence until the plaintiff is either more negligent (greater than 50% at fault) than the defendant(s) or in other states equal to
the negligence of the defendant(s), or 50%. (=50% and >50% is big diff). LivYellowCab- “Liability for damage will be borne by those whose negligence caused it in
direct proportion to their respective fault.” CA adopts pure form in this case. BohanvRitzo- here comparative negligence can slip into strict liability cases, the court
said we should look at comparative causation in evaluating damages in strict liability cases.

JOINT AND SEVERAL LIABILITY: (if you can divide injuries nicely, no need to use this liability, just apportion damages accordingly) Joint
tortfeasors are two or more individuals who either (1) act in concert to commit a tort, (2) act independently but cause a single indivisible tortious injury, or (3) share
responsibility for a tort because of vicarious liability. Under traditional common law, each joint tortfeasor is “jointly and severally” liable for the plaintiff's total
damages. This means that each individual is fully liable to the plaintiff for the entire damage award. If the plaintiff is unable to collect a co-tortfeasor's portion of
the liability, the tortfeasor(s) from whom the plaintiff can collect are responsible for the other tortfeasor's (s') share. “Acting in concert”(see See, e.g., Bierczynski v. Roge)
is the tort equivalent of being a criminal accessory or co-conspirator. If an individual intentionally aids or encourages another to commit a tort, he is as liable as the
individual who actually committed the physical acts of the tort. “Independent acts cause indivisible injury”:(see Bartlett v. New Mexico Welding Supply) Two or more
individuals who act independently but whose acts cause a single indivisible tortious injury are also joint tortfeasors.
Vicarious Liability: Frolic or Detour? A defendant may be jointly liable for the actions of another through vicarious liability. Vicarious liability
automatically imposes tort responsibility on a defendant because of his relationship with the wrongdoer. Ira Bushey-D bears loss bc court says we are looking for
foreseeability, not scope, seamen will get drunk, people won’t stop being people, they get irritated/flirt/fight, so employer can be liable. Employers/employees The
most frequent example of vicarious liability is when employers are held liable under a theory of respondeat superior for the actions of (1)employees within the
(2)scope of their employment (seeFruit v. Schreiner). Is he an Employee or Ind. Contractor?2nd re. of agency §220 factors: (1)How much supervisory control? (2)is actor
engaged in distinct operation/business?(3)is the work done by a no body or a super specialist?(4)who supplies the tools? (5) how long is the hiring for?(6) hourly pay, or by the job? (7)if employer is in business, is
the work part of employer’s business? (8)what do the parties think? Is he within scope of employment? (1) is it kind of act he is employed to perform? (2) occurred substantially within the authorized
time and space limits? (3)actuated, at least in part, to serve the master? (4) If force is used by servant against another, was the use of force unexpectable or not?(5) common trend is to also include incidental acts
during lunch or smoke breaks, bc they are related in a general way to accomplish work. Intentional torts: If a court takes a broad view of the costs enterprises should absorb, they will impose liability, or if they
emphasize personal motivation of the tortfeasor and deny recovery. Ultimately, it will depend on the “differing judgment about the desirability of holding an employer liable for his subordinates’ wayward
behavior” (Faragher v City of Boca Raton).Courts hold vicarious liability for some int. tortsBouncer, repossessers (they assault people), brawls at work are harder but some courts will include this in incidental
things bc these things happen, sexual harassment cases are mixed. The idea is that you do work for you boss’s benefit, so he should be liable. Economically speaking, he has the
money and he is best equip to handle it bc he can incorporate the cost into the price of the product. Must work in “scope of employment.” Often times you are
employee if the employer has the right of control over the person in the performance of the work. Petrovich-gen. vic lia doesn’t exist with independent contractors,
but not if there is implied/apparent authority. Apparent=(from Gilbert v Sycamore, (1) HMO must hold itself out to be a provider of health care w/o informing the patient that
the physicians are ind. cont. and (2) patient must have relied on this. Implied= HMO exerted sufficient control over the physicians so as to negate their ind. cont. status. Independent
Contractors-generally owners are not liable for the torts of independent contractors. Exceptions: Non delegable duties(see Colmenares v Sun Alliance), where the owner may
delegate the work but cannot delegate away the liability. If there is unusual danger and requires special precautions, (public works) in the work and is done for owners benefit, they can
find the owner liable for the contractors torts in the course of such activities. Contractor’s independence does not always absolve the owner of responsibility since courts often refuse for
policy reasons to allow owners to wash their hands of matter by hiring out the work. LisaMvHenry Mayo-Hosp not liable bc it was intent. tort and very unforeseeable at
that.Burlington industries-even though not in scope of employment, Employers are liable as supervisors for creating hostile work environment in sex. harr. suits, 2 defenses: If the employer exercised
reasonable care and 2. If you(victim) did everything u cud after u found out. Schechter- This case involves the possibility of holding employers responsible for negligent hiring, even for intentional wrongs, even
though its outside scope of employment, this reached jury bc they had a criminal background.
o Allocation of Liability/Settlement/Contribution after comparative fault: American Motorcycle Ass. v SuperiorCourt- comparative negligence does not necessarily
abolish joint and several liability. The allocation though should be based on each person’s comparative fault.
ALLOCATION: Under a comparative approach, instead of dividing liability equally by the number of joint tortfeasors, liability is divided by the proportion of
responsibility each tortfeasor bears to the plaintiff for his injury. Some courts have adopted several liability, which eliminates the need for contribution entirely bc
no defendant is forced to pay more than his “share.” This has a downside though bc the insolvent defendant is now hurts the P, and we don’t like doing that.
Reallocating the uncollectible share: some states fine tune their allocation scheme so that the uncollectable part is allocated amongst all parties based on percentage
fault, others reallocate is just on other tortfeasors.
SETTLEMENT: old rule: releasing one tort feasor released them all. Majority approach: the settling defendant's percentage of fault, as determined by the
fact-finder, is deducted from the damages awarded the plaintiff regardless of the actual cash payment made by the settling defendant to the plaintiff. [See
Restatement (Third) of Torts, Apportionment Liability § 16, which endorses this method of apportionment.] Minority approach: allows the settling defendant's
payment to be deducted from the final total damages owed to the plaintiff. This results in the remaining joint tortfeasors paying the full damage amount actually
awarded to the plaintiff minus the settling defendant's payment, even if that increases the percentage of the damages for which the remaining defendants were
originally liable. Jurisdictions utilizing this approach generally require a “good faith” hearing to confirm that the settlement is not a conspiracy by the plaintiff and
the settling defendant to make another defendant pay an excessive share. This is bad bc if X settles for 2k, Y may be liable for the rest which may be 98k on a 100k
judgment, but we do expect good faith and we do want incentive to settle. McDermottvAmClyde- 3 options to determine credit; 1.pro tanto setoff w/ right of
contribution against settling defendant (discourages settlement) 2.pro tanto w/o contribution (may lead to inequitably apportionments) 3.proportionate share
approach (see majority above).
CONTRIBUTION: Old Rule: No-contribution necessary. Union StockYards vChicago- this case reps the traditional ‘no-contribution’ rule, exceptions include:
one party is primarily responsible/one does not join in the wrong but is held responsible/the principle cause was the result of the first wrongdoers act, this case did not
fall into any of these exceptions. Modern Rule: most states have a right to contribution by statute or judicial decision, many closely modeled on the 55’
UniformContributionAmongTortfeasorsAct, which says you have a right to contribution and how much, assuming you can show the other tort-feasor is also liable.
Effects of settlement on contribution: §4b of Uniform Act says settling tortfeasor doesn’t have to contribute. Benefits of this: 1.Purpose of settling is peace of mind
2.promotes settlements, both sides win. 3.normally there is a good faith requirement(§4). Settling party cannot seek contribution in great majority of times, but they
get to avoid the risk of trial. Enforcement: (show he is liable) Implead him or bring a new suit against him.

 NIED: In certain limited circumstances, negligently inflicted mental distress that does not follow from physical harm is recognized as a basis for recovery. Traditionally, as a prerequisite to recovery for
mental distress, the defendant's negligence must have caused some form of physical impact on the plaintiff's person. Most states today only require that the plaintiff have been in risk of physical impact,
sometimes referred to as being within the “zone of impact” or the “zone of danger.” Most states also require that the victim's mental distress be sufficiently severe to cause physical symptoms of the distress.
Some jurisdictions have flirted with a much broader recovery for pure emotional distress - dispensing with a requirement of physical manifestations and broadly defining the class of proper plaintiffs.
DIRECT ACTIONS: Impact rule: minority: retain that the victim must suffer physical contact by the defendant's negligence to recover. The impact need not itself cause
physical injury. Majority: abandoned the impact requirement, reasoning that its artificiality creates an incentive for overly creative pleading and excessive litigation. Risk of impact
rule: Majority: allow recovery for mental distress if the plaintiff was at risk of physical impact and suffered a physical manifestation of the distress. This “zone of danger” requirement
allows the plaintiff to recover for mental distress caused by near misses. While a heart attack or miscarriage is clearly adequate, such severe physical manifestations are not required, and
assertions of stomach trouble have sufficed. Special Cases: Some courts will do this. For example, a plaintiff can readily recover for mental distress occasioned by the negligent
handling of a close relative's corpse, or the erroneous notification of a close relative's death, situations lacking either impact or a threat of physical danger to the plaintiff. Broadest
Direct Recovery: A few jurisdictions employ general notions of foreseeability. In the place of restrictions such as impact or presence in the danger zone, these states permit recovery
for mental distress to all foreseeable plaintiffs. Others have something of a middle ground, where a plaintiff suffering mental distress is owed a duty provided she can show the existence
of a pre-existing duty. (See Marlene F. v. Affiliated Psychiatric Medical Clinic) Recovery for Fear of Future Physical Harm Should emotional distress damages should be
recovered for the fear of future physical harm? Most courts are wary of permitting recovery due to the difficulty of measuring damages, potentially crushing liability, and serious proof
problems such as the possibility of multiple causes.
BYSTANDERS: (courts have struggled to strike balance between overly burdening D’s and allowing foreseeable Ps to recover) (arg anti- deny connection between
distress and def’s conduct and blame another event for the harm or admit cause in fact, and argue prox cause.)(fright is not good enough, see Mitchell v Rochester Railway) 1st approach:
Under the zone-of-danger rule, the plaintiff can recover for emotional harm suffered from witnessing negligently inflicted harm causing death or serious injury to another (generally a close relative) when she is in
a position to fear for her own safety. 2nd approach: Dillon v Legg approach- No impact required, and not in physical risk. Recovery if: 1. Be near scene of accident (2) have shock from
contemporaneous sensory perception of the accident; and (3) are closely related to the victim. Most of the states following this approach also continue to require that the bystander-
plaintiff suffer some physical manifestation of her distress. 3rd approach: The 3rd Restatement §47-“(a) perceives the event contemporaneously and (b) is a close family member of the person suffering
the bodily injury.” Elden v Sheldon- denied claims for the NIED to an unmarried cohabitant even when he witnessed his death and was injured himself, they required Dillion’s 3rd prong to mean spouses and
siblings bc of states interest in promoting marriage.
 Strict liability and Negligence in the last half of the 19th century
o Brown v Kendall(101) have to act in a way that is without all due care
o Rylands v Fletcher (104-11) if land is used for artificial purpose you are responsible for all the damage caused (UK)
o Brown v Collins (115) in US only liable with artificial land use if negligent—but in most places Rylands is the law
o Losee v Buchanan(117) have to give up some rights in a continuously progressive society
o Powell v Fall (118) have to internalize cost of your actions (train creates hay fire)
 Reasonable Person
o Vaughn v Menlove(145) reasonable person is not stupid even if D is (can not say are not liable because too stupid to know hay will catch fire)
o Roberts v Ring(151) child held up to standard of reasonable child of his age, childhood is subjective
o Daniels v Evans(153)children engaged in adult activities held to adult standard (minor driving is reasonable driver)
o Holland v Pitochelli(153) teaching a kid to drive you know they do not have same standard as adults (because new) and so no liability if aware
of that
o Breuing v American Family(158) if know that a person is crazy then have to account for that (woman thought she saw batman)
 Calculus of Risk
o Blyth v Birmingham(166) no negligence because acted prudently and can not expect coldest winter ever (also they were statutorily compelled
to put in the pipes so court reluctant to make them liable)
o Eckert v LIRR(167) Hand formula does not always work because how to value human life, not negligent in trying to save child stuck on tracks
o Cooley v Public Service(173) unreasonable to put many at risk to be less risky for few (woman heard noise on phone during storm and wanted
a solution that was extremely dangerous to everyone else)
o US v Carroll Towing(175)negligence with the side constrain of custom, this case involved a towing accident (introduction of Hand formula)
o Lyons v Midnight Sun(182)reasonable man incorporates the reasonable emergency, truck hit car when swerving to try and avoid it
o Andrews v United(184) airlines have highest standard of care, overhead storage compartment was opened and something fell
 Custom
o Titus v Bradford(188) is the customarily way the same as what a reasonable man would do (job involves jumping trains)
o Mayhew v Sullivan(190) court can not say things about the custom of mining industry but even still would not insulate from liability (there
was a hole in the dark mine and notice)
o TJ Hooper(191) when customary things are easy then not adopting them is negligence (like not having a radio on a boat)
o Fonda v St. Paul(195) can not hold people to standards they impose on themselves that are stricter than law because court encourages people to
do more but this would createosborn a perverse incentive not to
o Brune v Belinkoff(205) can’t only look at area but want a national standard for specialized medicine (doc said New Bedford has different
standards than NY or Boston)
o Lama v Borras(197) doctor held up to industry standard
o Morilino v Medical Center of Ocean County(204) can not only use physician’s desk reference have to use field experience
 Statutes and Regulations
o Osborne v McMasters(228) not abiding by statute gives a standard to measure negligence-drug bottle was improperly labeled (Restatement
says this is negligence per se)
o Stimpson v Wellington(230) has to be within the scope of things protected by statute, trucks not allowed on roads extended to damage to pipes
below
o Gorris v Scott(230) law about preventing disease does not create liability for overboard sheep
o Martin v Herzog(233) law for lights on carriages and if there is none then it is what the statute is meant to prevent so negligence per se
o Tedla v Ellman(234) if statute for walking against traffic incorporates common law it includes the exceptions to the common law (even if not
stated explicitly in statute)
o Brown v Shyne(235)no license leads to ask if violation is what lead to the harm, man said he was a chiropractor but not
o Uhr v East Greenbush(242) private right of action must be consistent with scheme of the statute, like scoliosis test in school
 Proof of Negligence –Res Ipsa Loquitur (RIL)
o 3 ideas of RIL
 Harm can’t be without negligence
 D had exclusive control
 No contributory negligence of P
o Byrne v Boadle(261) do not have to prove negligence fact that barrel of flour fell was enough
o Scott v London(262) something must be in your exclusive control and this includes employees
o Restatement 328(263) event doe not happen without negligence; other causes eliminated; scope of D’s duty to P
o Gailbraith v Raymond, Pfaffenbach v White Plains Express(265) depends on if P knew D in car accident cases
o Larson v St Francis(264) if not in exclusive control of hotel then no RIL (like hotel guests throwing chairs out window)
o Walston v Lambersten(266) ship lost at sea is not RIL because sea has a mystic, awesome quality
o Colmenares v Sun Alliance(268) non-delegable duties makes RIL remain, like escalator in airport that stops working
o Benedict v Eppley(274) woman fell after sitting on hotel chair and court said they invited her so liable
o Ybarra v Spangard(276) point of RIL is can not prove who is negligent and so can sue hospital, nurses, and doctors (will not put it to
unconscious person to say what went wrong and duty shifts to D to say not liable)
 Contributory Negligence
o Beems v Chicago(289) no contributory negligence if did everything the right way (like making signal to slow before jumping towards the
trains)
o Gyerman v US Lines(293) contributory negligence has to have been the cause of the harm for a the defense to work, not complaining about
poor practices does not contribute to the negligence
o Padula v State(293) no contributory negligence when guards in drug rehab center do not do their job
o LeRoy Fibre v Chicago(300) not contributory negligence if allowed to use property in own way and RR creates fire
 Last Clear Chance
o Fuller v Illinois Central(308) liable if you could have stopped the danger and did not, conductor saw the man on tracks
o Restatement 479, 480(310) If defendant knows the plaintiff is in helpless situation then they will liable for the arm if avoidable
 Imputed Contributory Negligence –Mills v Armstrong(313) are you considered a party to the negligence if you were there but not actually negligent (in
person’s car when they crashed)
 Assumption of Risk
o Lamson v American Axe(318) he knew the risk and continued to work so he assumed the risk, painting hatchets & bad racks
o Murphy v Steeplechase(322)assume the risk when you go on a ride that is meant to jostle people, called “the flopper”
o Marshall v Ranne(327) when one executes legal rights then you can not assume the risk, neighbors wild boar
 Comparative Negligence Common Law
o Li v Yellow Cab(337) CA adopts comparative negligence regime when car is hit after crossing 3 lanes of traffic (proportional liability, until P
is 50% at fault)
o Morgan v Johnson(347) can not have comparative negligence with intentional tort, woman got drunk and D tried to use it as defense
o Bohan v Ritzo(346) comparative negligence is compatible with strict liability, man fell off bike because of neighbor’s dog
 Comparative Negligence By Legislation—current move is statutory imposition of comparative negligence over contributory
 Joint and Several Liability
o Union Stock Yards v Chicago(355) where either of 2 parties or both parties are responsible for negligence then one party can not sue for
indemnification, defective nut in train car and one of 2 companies could have known so both are responsible
o American Motorcycle v Superior Court(359) concurrent tortfeasor can sue for joint liability comparative negligence regime—turns on
divisibility of harm and jointness of casual elements
o McDermott v AmClyde(368) Pro Rata contribution (have to pay percentage of ham) and removes settlement
 Vicarious Liability
o Bushey v US(375) legal standard is foreseeability as part of the job (drunk sailor coming back to dry dock)
o Lancaster v Norfolk, Godar v Edwards(381) employer only liable if knows what is going on if intentional tort (office superiors knew in
Lancaster and in Godar school board did not know what was going on)
o Petrovich v Share(383) is P thinks D is employer than they can be vicariously liable (patient thinks doctor is employee of hospital but not
really)
 Cause in Fact
o NY Central v Grimstad(394) have to show that action causes the harm—even if there were life preservers he could have still died when barge
captain fell into water
o Zuchowitz v US(398), Reynolds v Texas(402) If a negligent act is wrong because it increases the chances that a particular harm will occur then
we will assume that there is a causal link, (hospital prescribed wrong dosage, woman fell down stairwell)
o GE v Joiner(404) Daubert standard used and evidence need only be scientific in nature but judges can decide, man got cancer and could have
PCB or life of smoking
o Herskovits v Group Health(412) liable for decrease in survival chance—lost time is the issue because he was dying anyway but did not detect
the cancer in time
o Kingston v Chicago Ry.(418) liable if other things make your negligent act worse (train fire combined with other fire)
o Piner v Superior Court(422) 2 differing causes make indivisible damage and both D are liable (woman had 2 accidents but only one injury)
o Summers v Tice(425) don’t know which of possible Ds and so all are liable, hunting trip and either of 2 people hit P
 o Skipworth v Lead Industries(428) did not adopt market share liability because all named D have to be potential tortfeasors which was not the
case can not blame all lead paint makers for 120 years
 Proximate Cause—Physical Injury
o Ryan v NY Central RR(436) natural and expected liability, train set fire to RR’s shed but it spread to other property
o Berry v Sugar Notch Borough(446) if the negligence is the type that leads to the harm then there is liability, speeder
o Tuttle v Atlantic City(440) liability of reasonable reaction will cause harm
o Brower v NY Central(444) D’s negligence is the reason that the plaintiff could not protect his property even in the case when there is a third
party that looks like an intervening cause
o Hines v Garret(442) intervening cause doesn’t matter if it was negligence that put P in that situation, train passed stop and girl was raped
o Wagner v International(450) liable for rescuers if one who created apparent peril; peril is imminent; reasonable person known of the peril;
rescue was not reckless
o Steinghauser v Hertz(477) in general take the P as you find him, child got schizophrenia after accident
o Polemis(452) liable because can foresee that negligent act will cause harm, cargo exploded when plank fell into petrol storage
o Wagon Mound 1(471) no liability because what matters is foreseeability of damages, oil spill led to entire harbor on fire
o Wagon Mound 2(474) liability because court says is foreseeable even if chances are slight (new judges now)
o Palsgraf v LIRR(456) no liability to unforeseeable victim, might be liable to unforeseeable harm if victim is foreseeable
 Restatement and Andrews’ dissent(460,465) sufficient causation
o Marshall v Nugent(467) still liable after accident because negligence has not come to rest, icy road and truck causes accidents
 Proximate Cause—Emotional Distress
o Mitchell v Rochester(480) court said can not recover because of fright, NIED must piggyback physical harm (horses’ heads)
o Comstock, Porter, Kenney, Christy Bros(482) all cases where slight touch led to NIED or stretched to find touch
o Dillon v Legg(483) not zone of danger but foreseeability so if P was close to accident; saw accident; related to victim (mother and sister saw
girl get killed)
o Thing v LaChusa(489) bright line rule when mother saw her daughter get injured: 1. close relative 2. present and aware at time of harm 3.
more ED than unrelated witnesses
o Elden(489), Trombetta(491) strictly define relative (aunt who raised from age 11, partner but not spouse of 10 yrs—both not)
 Duty to Rescue
o Buch v Armory(497) no legal duty to a trespasser even if there is a moral duty, 8 year old on property
o Hurley v Eddingfield(499) can not force a doctor to practice medicine
o Yania v Bigan(500) absorb the cost when you created the condition and did not rescue
o K.H. v Morgan(513) once you are dependant on the state then they may have liability but if no state dutythen no liability (this is about foster
system but similar to the 911 case)
 Duties of Owners and Occupiers
o Addie v Dumbreck(513) 3 categories of people: Invitee, Licensee, Trespasser—child trespasser who dies on wheel of haulage system does not
create liability
o Excelsior v Callan(516) Restatement Second says where on discovers or has reason to know there is a trespasser then they owe reasonable care
(can’t be willful and wanton) in this case machinery was near a playground
o Resatement 339(518) attractive nuisance doctrine
o Rowland v Christian(521) court throws out old categories in favor of ordinary negligence principles but really the same-faucet breaks the
guest’s hand
 Gratuitous Undertakings
o Coggs v Bernard(534) one of highest duties person has is one of a bailment, cases of brandy are spilled
o Thorne v Deas(535) not liable for nonfeasance (D said would insure ship and did not and then ship crashed)
o Erie v Stewart(536) when rely on people something and then not there you are liable for the harm that occurs (there was no attendant to warn
that train was coming)
o Marsalis v LaSalle(539) When you volunteer to help somebody you are then obligated to do so non-negligently-said that would lock up cat to
make sure it did not have rabies
o Moch v Rensselear(541) no liability for nonfeasance only misfeasance, taxpayer can not collect on breach of contract with city when hydrant
does not have water
 Special Relationships
o Kline v 1500 Mass(549) Landlord was the only one who could have done something about it because he is the only one in control of the
common areas and so responsible when taking away doorman and making building less safe
o Tarasoff v University of California(559) a therapist is required to divulge confidential information to avoid danger to others such as a crazy
person killing a girl
o Thompson v County of Alameda(565) no liability if could not identify the victim, did not know who kid in juvi was going to kill
 Conversion
o Poggi v Scott(569) no legal right to the property even if did not know and so conversion (sold barrels of expensive wine)
o Moore v University of California(573) doctor is a special relationship and so duty to disclose (used the spleen for medical advances)
o Greenberg v Miami Children’s Hospital(578) no liability if donate the DNA voluntarily, they do not own it anymore
o Kremen v Cohen(580) can have conversion of internet domain names
 Animals
 o Gehrts v Bateen(581) domesticated animals do no lead to strict liability (dog bit a person)
 Ultrahazardous or Abnormally Dangerous Activities
o Spano v Perini(589) liability in ultrahazardous activity (dynamite is just such a thing)—garage blown up by dynamite
o Restatement 3rd(595) if creates a foreseeable highly significant risk of foreseeable harm even when reasonable care is exercised by all actors
and the matter is not common usage
o Yukon v Firearm’s Fund(608) may be liable for somebody’s intentional tort (thieves stole the dynamite)
o Indiana Harbor v American Cyanamid(599) no liability if could be avoided, not up to manufacturers but shippers (train leak)
o Madsen v East Jordan(607) no strict liability if damage is not the type anticipated by the activity (minks killed kittens)
 Private Nuisance
o Vogel v Grant(608) nuisance seems to be a claim that is bundled with other (like trespass) , cites to Restatement §821D (cows are upset but
extra electricity)
o Copart v Con Ed(615) no nuisance if there is no other claim (emissions damaged finishes to cars)
o California Civil Code §3479(613) Anything injurious to health including but not limited to:
 Illegal sale of controlled substances
• Crack house or whore house is a classic example of nuisance
 Indecent or offensive to the senses
 Obstruction to the free use of property so as to interfere with the comfortable enjoyment
 Unlawfully obstructs free passage or use of any navigable river, bay, stream, canal, basin, public park, square, street, or highway
o Rogers v Elliot(622) nuisance should be judged based on what would be bothersome to the ordinary person and not to specific person’s
sensibilities (church bell caused convulsion)
o Puritan Holding(613), Adkins v Thomas(614) depreciation of market value is not an actionable nuisance claim
o Fountainebleau v 45-25(618) court does not want to protect business (as in how well the business does) in the same way it does not want to
protect property values (competing hotel builds addition that blocks pool)
o Prah v Maretti(620) in Wisconsin you have a right to some light
o Ensign v Walls(625) even though D was there first her business was a nuisance and she had to stop raising the dogs
o Spur Industries v Del. E. Webb(638) it is hard to make a huge cattle farm move and so pay economic damages instead
o Boomer v Atlantic Cement(629) don’t have to suspend actions for a nuisance but pay for damages (cement company created a nuisance for P
because of vibrations and dust)
 Public Nuisance
o 532 Madison Ave v Finlandia(641) in public nuisance you injury but be different (in kind) than everyone else’s (building collapse)
o Union Oil(644); Exxon Valdez645) commercial fisherman are affected in a different way than others with water pollution
o Camden County v Beretta(646)  manufacturer can not be a nuisance if the good is removed from them and used for criminal acts (country tries
to sue for manufacturing more guns than the legal market can absorb
 Products Liability
o Winterbottom v Wright(655) initially recovery was denied if no privity with the vendor or manufacturer-postal carriage crash
o MacPherson v Buick Motor(657) liability where you are negligent about a product and there will be an immanent danger
o Escola v Coca Cola(665) manufacturers can be strictly liable because they are in best position to guard against harm (coke exploded on
waitress)
o Henningson v Bloomfield Motors(671) loosen privity requirement (can foresee that man’s wife will drive car)
o Volkswagen v Young(704) traditional negligence applies for car designs if defect is known to manufacturer that could enhance injuries in an
accident
 Damages
o Pain and Suffering
 McDougald v Garber(774) need to be aware to recover for pain and suffering so can not recover if in coma
 McGinly v US(291) no duty to mitigate if it is not guaranteed to help (do not have to undergo high surgery if might not work)
 Duncan v Kansas City Ry.(793) hard to determine lost wages for a child (church van accident and 1 sister killed another paralyzed)
 O’Shea v Riverway Towing(783) can have lost future wages even if no past wages (woman was a cook and hurt leg)
o Wrongful Death and Loss of Consortium –really this was in other damages because people in general sue for wrongful death as the estate and
in many cases that is also the survivors who then sue for loss of consortium
o Punitive Damages
 Kemzey v Peters(824) punitive damages do not need to take into account D’s net worth (security guard hit man in bowling alley), 7
reasons for giving punitive damages
• Compensatory damages don’t always compensate fully because there is something that has no social value so over-deterrence
is not an issue
• To make sure tortious conduct is not under-deterred
• Make sure people channel transactions through the market
• Judgment equal to harm done will under-deter
• Express the abhorrence of defendant’s act by the community
• Relieve pressure of criminal justice system
• Prevent self defensive fighting
 Rono v Ford(829) willful and wanton, knowing that –bronco case because car is half fiberboard
 State Farm v Campbell(831) how to calculate punitive damages (insurance company would not settle in car accident), 3 guidelines of
BMW v Gore
• Degree of reprehensibility
• Disparity between the actual harm and the punitive damages awarded (single digit ratio)
• Difference between these damages and those awarded in similar cases