Torts

Negligence
1
2
I. Definitions
Neggence-- to prove the charge of negligence the following elements must be established:
1. duty of care
2. breach of duty
. the breach is the cause n fact of the in!ury
". the breach is the proxmate cause of the in!ury

Vcarous abty--liability based not on fault but status. #by far the most
common type is respondeat superior$.
Respondeat superor--to recover under this theory% plaintiff must
establish:
1. a negligent act of employee #a breach of duty$
2. the negligent act was within the scope of empoyment .
Scope of empoyment--proof must meet the following elements:
1. of the &ind he is employed to perform
2. substantially within the authori'ed time and space limits
. purpose to serve master () employer would have benefitted
Independent contractor--the defaut rue s empoyer
s not responsbe under respondeat superor.
*+,*-T: non-deegabe dutes
i. peculiar ris&s #blasting.e/cavating$
ii. duty to inspect #land.chattel$
The employer test to distinguish I, from employee:
1. relies on sk of contractor
2. does not enter nto actve contro of enterprse
. does not contro manner and means of task
|withholding of taxes and soca securty hallmar& of
empoyee0
1 The liability stems from unreasonabe and unntentona conduct.
2 Defenses to negligence are comparative fault, contributory negligence, express assumption of the risk,
implied assumption of the risk.
3 This is also called the ega cause or the scope of abty.
1. Duty--the default rule is 1a duty to e/ercise reasonable care when the actor2s conduct
creates a ris& of physical harm.3
"

the ma|orty poston is that foreseeability is a part of duty. #Kacznsk trampoline$4
in some !urisdictions courts find that pantff/cass of persons ought to be foreseeable
#although !urisdictions split on the latter issue$.
The current trend% led by the Restatement 3rd% is away from foreseeability as a part of duty
#and considering it later down the line% by the !ury% as a part of causation$.
7 Duty
a) an actor ordnary has a duty to exercse reasonabe care when the actors
conduct creates a rsk of physca harm.
b) In exceptona cases, when an artcuated countervang prncpe or pocy
warrants denyng or mtng abty n a partcuar cass of cases, a court
may decde that the defendant has no duty or that the ordnary duty of
reasonabe care requres modfcaton.
Duty
1. Does a duty e/ist5
2. 6hat is the duty owed5 #it2s reasonable care% but this is different depending on the
circumstances4 this is the standard that the !ury uses$.
the duty nqury--assuming the defendant acted unreasonably% should the court impose a legal
obligation to have acted reasonably in the first place5
The ma|orty rue is to consult policy factors regarding reasonable
foreseeability:
a$ e/isting duty categories don2t dictate a clear result ()
b) when the law dictates an outcome that goes against a sense of fairness or
intuition given the facts of a particular case.
The duty is decided by a !udge
7
and these decisions should be broady categorca
#does the driver of a car owe a duty5$% pocy-based #what types of harm should be punished$%
and based on effcency #can the courts handle a class of cases$.
Tarasoff Factors for deciding whether a duty should be imposed:
#a$ Foreseeabty of harm to the plaintiff4
#b$ Coseness n connecton b.w the D2s conduct and the -2s in!ury4
#c$ Mora bame attached to D2s conduct4
#d$ Pubc pocy attached to preventing future harm4
4 6hen loo&ing at duty of care% you need to loo& at the information available to the individual at the time that they
acted. The court points out that hndsght bas leads us to believe% after something has happened% that our
estimation of the chance of a given thing happening goes up.
7 8owever the !udge can instruct the !ury: if on 9 you find fact 91% then duty :1 applies4 if you find 92% then duty
:2 applies.
#e$ */tent of the burden to the D n mposng a duty #cost of
preventative.insurance measures$
The duty nqury as&s the following ;uestion: assuming the defendant acted
unreasonably% should the court mpose a legal obligation to have acted reasonably in the
first place5
9n ambiguity in the facts is assumed n favor of non-movng party%
since we haven2t yet gotten to the !ury.
aduts--standard of the 1prudent and cautious person3 under given circumstances.
considered by court: education and e/perience with given activity
not considered: intelligence
mnors #under 1<$--duty of care of reasonable person of li&e age% intelligence% and
e/perience under li&e circumstances
=N>*?? the activity is so potentay hazardous #using blowtorch$
or characterstcay undertaken by aduts #motor boating$.
dsabed--duty of care is prudent and cautious man for mentay dsabed% and for
physcay dsabed the prudent and cautious #one-armed man.blind man$.
8istory of Duty Doctrine: Pasgraf
,ardozo: ma|orty poston
@
#zone of harm% must be a foreseeable plaintiff$.
reatona--negligence is about a duty between individuals% and what results
when that duty is breached.
A

Andrews: minority position
<
#act-centered% the act is unreasonable and responsible for any
plaintiff harmed$.
anyone n the word--negligence is about the potential harm of our acts to any
person.
Affrmatve dutes to Warn, Protect, or Rescue
The default rule is that there is no duty to warn% protect% or rescue.
B
*+,*-T affrmatve dutes:
@ currently the ma!ority view of duty in =.?. courts. 9ccording to ,ardi% although this is the ma!ority view a slight
ma!ority of those courts still leave the ;uestion to the !ury.
7 =nder Pasgraf% according to ,ardo'o a duty e/ists #the railroad owes a duty to Crs. -alsgraf$ and there is a
breach of duty #the guard breached his duty in the !ostling of the pac&age$% but there needs to be a nexus between
the duty owed and the duty breached to lead to negligence.
< currently the minority view of duty in =.?. courts.
B The rationale is that to re;uire otherwise in an infringement on personal liberty. Note that the special relationships
are different because they involve a necessary reduction of liberty in the assumption of the role.
1. pre-e/isting 1special relationship3
1D
between - and D of the &ind that
commonly carries an obligation of care for foreseeable in!uries.#Grmes v.
Kennedy Kreger Inst.
11
$
,ourts create the categories of special relationships.
These are the factors used by courts to determine whether
a special relationship e/ists:
a. where the D was in a better position to understand
potential ris&s
b. practical ine;uities between parties where D has superior
&nowledge 9ND - is particularly vulnerable
c. the degree of trust placed in the D
d. whether the D benefited from the relationship.
2. where the D voluntarily promises aid or comes to aid
12
of - #Farwe v.
Keaton)
6hen one voluntarily begins a rescue that person owes a duty to
do that rescue effort reasonably. The courts are protecting the
liberty interest to stop the rescue effort. :ut this duty does not include
a duty to continue to do the rescue effort.
=N>*?? the person is in 1imminent peril of serious bodily
in!ury3 in which case% in most !urisdictions% there is a duty to
continue the rescue effort assuming that there is reliance on
this aid. This is a reasonable person standard. There is also
a duty not to abandon the person in a worse position than
they were previously to the rescue. This is not really an
e/ception to the rescue rule% since this is ris&-creation.
. where the D created the ris&% even if non-negligent
1
#Madonado v.
Southern Pacfc Transportaton Co.$
". where the D had special relationship with third party who created ris&
1"

#Thompson v. Aameda4 although court found no duty$
1D The )estatement Third of Torts recogni'es the following 1special relationships3: 1. a common carrier with
passengers 2. in&eeper with guests . business to guests lawfully on premises ". employer with employees when #a$
imminent danger or b$ in!ured at wor& 7. school with students @. landlord with tenants A. custodian with those in
custody if #a$ custodian is re;uired by law to protect or #b$ has a superior ability to protect the other.
11 In most !urisdictions |ures determne whether the facts of a case ft a partcuar category of
"speca reatonshp."
12 The logic for this e/ception is that once someone has promised aid or given aid they have given up their liberty
interest% and thus there is no danger of its being compromised.
13 Restatement Thrd 39 Duty :ased on ,onduct ,reating a -rior )is& of 8arm
6hen the actor2s conduct% though not tortious% creates a ris& of harm% the actor has a duty to e/ercise reasonable care
to prevent or minimi'e that ris&.
1" )estatement #Third$ of Torts E "1. Duty to Third -ersons :ased on ?pecial )elationship with -erson -osing
)is&s
#a$ an actor in a special relationship with another owes a duty of reasonable care to third persons with regard to
ris&s posed by the other that arise within the scope of the relationship.
#b$ special relationships giving rise to the duty provided in #a$ include:
1. parent with dependent children
The reason for imposing a duty is that the D is a class of defendant
with the a$ ability to foresee 9ND b$ the ability to control the actions
of the wrongdoer #6$. This class includes psychiatrists and parents.
The Tarasoff factors have been adopted by more courts than
any other set of factors for considering the essence of a
third-party duty #although still a minority of !urisdictions$.
Tarasoff : once a therapist has determined% or should have
determined% that the patient poses a serious danger of
violence he must use reasonable care to protect the foreseeable
victim% including the duty to warn the victim or those who can
reasonably be e/pected to notify him% and to do so discretely.
7. where a statutory duty
17
is sufficient to !ustify the negligence duty
1@
#Uhr
v. East Greenbush Schoo Dstrct; although the court found no duty$.
1A

9 statutory tort must either be e/plicitly allowed #plain meaning approach: the statute allows a
prvate rght of acton$ or a purpose interpretation:
1. a plain meaning interpretation of the tort #does it say that a
private right of action is allowed$ ()
2. a purpose interpretation using an implied three-pronged test:
i. would a private right of action fit within the statutory scheme?
ii. would a private right of action further the goas of the
statute5
iii. does the - fit within the cass of persons to be protected5
The standard of enforcement for a statute is not reasonableness4 rather%
violation of the statute automatically entails breach and obedience to the
2. custodian with those in custody
. employer with employees% when the employment facilitates employee causing harm to third parties
". a mental health professional with patients
6ith physician-patient relationships% most courts have endorsed suits by a foreseeably harmed third party against a
physician for the failure to warn the patient of the ris& of spreading the disease to a third party. 9n even greater
ma!ority have imposed a duty of reasonable care to warn third-parties foreseeably at ris& of infection. #Tarasoff v.
Regents of the Unversty of Caforna$.
15 This is different from Martn v. Herzog because in that case a duty already e/isted #misfeasance$ and they
were using violation of a statute to determine breach. The case of Martn v. Herzog is not relevant to the
e/istence of a duty. In the case of statutory duties% as in Uhr% what is at issue is the e/istence of a duty. *ven though
in both cases a statute is relevant. Not all statutes that govern behavior create a civil duty from one person to another
person.
16 In cases where there are overwhelming public policy reasons% the court may find no duty. This is the case in
Strauss v. Bee Garden Reaty% where the court limited liability for ,on *d to those 1in privity3 #those who
had entered into a contract with the utility% and whose in!ury resulted from that contract$ as a way of limiting the
liability. The public policy concern was that otherwise there was a danger the utility would go ban&rupt% or they
would have to short change investors or raise electricity rates. This is an e/ception under A#b$.
1A Cany states dram shop acts that impose liability for serving alcohol to into/icated patrons% and these statutes vary
on a number of grounds including whether they are liable to third parties in!ured by the patron% and whether their
was &nowledge that the patron would be driving. (nly four states #,9% I9% NF% C9$ have recogni'ed social-host
liability for in!uries to third parties.
statute automatically entails no breach . That is the sole ;uestion that the
!ury has to answer in determining whether there was negligence.
If there is no statutory tort% then it is still possible for the court
to find that there is a duty and that the case involves
negligence. 6ith common law negligence the legislature has
not ordered the court to impose a duty% but the court can do
so. They can loo& at the special relationship analysis or any
other e/ception to the no duty to assist rule. The statute may
be a reason to find that there is a special relationship% but
this does not have to be the case. If there is a special
relationship then the standard is reasonableness. In this case%
the ruling in Martn v. Herzog is again relevant #what is the effect of
the violation of a statute$. Thus there might be negligence per se for
violation of the statute.
Gor statutory analysis:
1. Is there a private right of action5 If yes% go to causation.
2. ,an a private right of action be implied based on the statute5 If
yes% go to causation5
. If neither #1$ or #2$% might a court impose a duty based on
violation of the statute5
Cisfeasance and nonfeasance
The concepts of misfeasance and nonfeasance are easily intertwined. The following as a way to
sort through them:
Msfeasance #ris&-creation rule$ - alleges---H D2s conduct created #foreseeable5$ ris& #to
foreseeable -5$--H duty to do that conduct reasonably.
Nonfeasance #rescue rule$ - alleges---H D2s conduct did not create ris& ---H no duty to warn%
protect% rescue---H e/ceptions.
1<
Neggence: Speca Dutes
Landowner abty
There are affirmative duties to use reasonable care to protect visitors from dangerous conditions
on land. 6here a landowner2s conduct in!ures a visitor #other than the conduct of creating the
dangerous condition$ normal duty rules apply.
1B
Iisitors to land are categori'ed in three ways
2D
:
1< This formula holds true even for affirmative duties.
1B This applies e;ually to renters or owners of land.
2D The trichotomy system of premises-liability is an attempt to protect property rights.
1. nvtees-- a$ a visitor with permission to enter and in whose visit the occupier or landowner
has a material interest b$ a visitor invited as a member of the public for a purpose for which
the land is held open to the public.
duty: to use reasonabe care to ma&e safe dangerous condtons of
which the landowner s aware or those of whch he shoud have been
aware.
2. censees--a visitor with permission to enter but in whose visit the landowner has no
material interest #for instance% a social guest$.
duty: to use reasonabe care to ma&e safe dangerous condtons of
which the landowner s aware.
The )estatement ?econd E 7 treats even foreseeable
trespassers as mped censees. This can also be hard to &now
when to apply% but E 7 recogni'es 1constant trespassing on a limited
area3 by persons over a period of time as !ustifying 1implied licensee.3 This
category includes door-to-door salesmen% political solicitors% or religious
solicitors.
3. trespassers--an entrant without permission.
21
duty: to not ntentonay, or wantony or wfuy n|ure
Rowand v. Chrstan #1B@<$ began the movement to abandon the trichotomy
#invitee.licensee.trespasser$ in favor of the reasonable person standard. In that case a social guest
#a licensee$ was in!ured while using the bathroom fi/tures and suffered 1severed tendons and
nerves of the right hand.3 The trial !udge found for the defendant. (n appeal this decision was
reversed% and the !udge determined that the 1reasonable man3 standard should be employed as to
whether 1in the management of his property...Jthe possessor0 has aced as a reasonable man in
view of the probability of in!ury to others.3 The court ruled that the invitee.licensee.trespasser
categori'ations of 1status3 may have 1some bearing on the ;uestion of liability%3 that the 1status
is not determinative.3
In !urisdictions that have re!ected a separate category for trespassers% legislatures have almost
uniformly passed statutes affording landowners some form of immunity. #9fter Rowand% for
instance% ,9 legislature passed a statute protecting landowners against liability to trespassers$.
Restatement (Second) of Torts 339 |attractve nusance|
22
19 possessor of land is sub!ect to liability for physical harm to children trespassing thereon
caused by an artificial condition
2
upon land if:
21 This does not apply if a person 1trespasses3 without e/erting agency #person hit on the head and carried onto land
is not a trespasser$.
22 This is more than a duty rule% it is also a liability rule. ,ardi points out that c$ is comparative fault% and d$ and e$
are the reasonableness standard #breach$.
2 This means 1man-made.3 It could include a campfire or a pool. ,ardi says that courts don2t treat houses as an
attractive nuisance.
(a) the place where the condition e/ists is one upon which the possessor &nows or has reason to
&now chdren are key to trespass% 9ND
(b) the condition is one of which the possessor &nows or has reason to &now and which he
reazes or shoud reaze w nvove an unreasonabe rsk of death or
serous body harm to such children% 9ND
(c) the chdren because of their youth do not discover the condition or reaze the rsk
nvoved in intermeddling with it or in coming with the area made dangerous by it% 9ND
(d) the utility to the possessor of maintaining the condition and the burden of emnatng
the danger are sght as compared with the ris& to children involved% 9ND
#e$ the possessor fails to e/ercise reasonable care to eliminate the danger or otherwise protect the
children.3
2"
Premses abty for Thrd-party Crmna attacks
The default rule is that business owners have no duty to protect customers #invitees$ from
criminal harm% but a duty arises if such harm is foreseeable.
There are four different approaches that have been used to determine when the harm is
foreseeabe:
1. specific harm rule --no duty unless landowner is aware of a specfc, mmnent harm.
#most courts have found this duty 1too restrictive3$
2. prior similar incidents--no duty unless pror smar ncdents ma&e the incident in
;uestion foreseeable. #this approach can lead to 1arbitrary results3$
. totality of the circumstances--no duty unless the nature, condton, and ocaton of
the and, as we as the number, nature, and ocaton of pror ncdents ma&es a
criminal act forseeable #this is the ma|orty test adopted$.
4. balancing test --no duty unless the nterests of customers outwegh the nterests of
busness propretors. This test aims to ta&e into account the economic and social impact
of re;uiring security% against the costs for customers if such security is not offered.
Immuntes
9n immunity consists of a !udgment by the court that although the D may have acted tortiously
and in!ured the -% certain considerations of public policy suggest the D should not be held liable
#for instance% intruding on the freedom of decision ma&ing of a parent or a government entity$.
There was previously charitable immunity% but that no longer e/ists. There used to be a degree of
charitable immunity in the =.?.% with the idea being that it was contrary to the intent of the
donors to such funds to e/pend those funds for the payment of tort !udgments. 8owever% the
24 9 common e/ception is that adult who attempts to rescue a child from an attractive nuisance assumes the status
of the child #meaning that ordinary care is owed$. #adopted from Bennett v. Staney$. ,ardi highlights.
doctrine of charitable immunity has been totay or partay aboshed in most states. There
used to be inter-spousal immunity% but that has largely been dissolved and parents can sue each
other for negligence with the e/ception of claims regarding intentional infliction of emotional
distress.
-arent-child--previously there was parent-child immunity% although there is now no parent-child
immunity in most !urisdictions. 9fter Goer v. Whte #1B@$ there has been no parental
immunity in most !urisdictions. 6here it has been retained% it has been parental immunity for
parental discretion. In other !urisdictions it is the reasonable parent standard.
27
Kovernmental Immunities
Federa Immuntes
Deeply rooted in the history of the common law in *ngland was the immunity of the sovereign
from the process of the law #1the Ling can do no wrong3$. The government cannot be liable
unless it says it will be. This doctrine of sovereign immunity was incorporated into 9merican
law. =nli&e all other employers% in the =.?. the state prevousy bore no legal responsibility
for the torts of its agents. -ractically every country of western *urope has admitted such liability%
as has ,anada% 9ustralia% New Mealand% and ?outh 9frica. The Federa Tort Cams Act
#1B"@$ was initiated following an airplane crash of a plane piloted by >ieutenant ,olonel ?mith
into the *mpire state building. The GT,9 covers all claims occurring 1on or after Fanuary 1%
1B"7%3 and allows private individuals the right to sue the government. *ven after the GT,9%
government immunity in the =.?. is still much stronger than anywhere n Europe.
State and Loca governments
9fter the enactment of the Gederal Tort ,laims 9ct% many states passed similar state claims acts%
waiving much of the immunity they had previously en!oyed.
The application of the public.private duty doctrine is most often used in cases involving either a
failure to rescue or a failure to protect the in!ured party by a governmental entity.
2@

The pubc duty doctrne is that when a government entity owes a duty to everyone
they owe a duty to no one% unless they have ta&en on a duty to a particular individual. The public
duty ony appes to nonfeasance. If the claim is msfeasance it is either a private duty
or no duty.
27 If the allegedly tortious action does not arise from the parental relationship then immunity doesn2t apply even if
the !urisdiction allows immunity for some types of parent.child harm #hypo: parent flying a model airplane above
house% loses control% crashes into &id at bus stop two bloc&s away% happens to be his son$.
26 Cost !urisdictions mirror the GT,9 in refusing to apply strict liability to government entities. Cost !urisdictions
do not recogni'e educational malpractice as a valid tort claim% due to the 1flood of litigation against schools3 that
would otherwise result. Cost !urisdictions grant absoute tort mmunty for egsators, |udges, and
prosecutors.
The prvate duty doctrne re;uires detrimental reliance on a specific promise or
action.
Cuffy factors used particularly in police cases% but used in governmental immunity
cases in many !urisdictions. ,ardi points out that the Cuffy factors re;uires the I to
detrimentally rely and not other #for instance% he collapses in diabetic sei'ure and his daughter is
told ambulance is on the way$.
This test provides that a private duty e/ists only where:
1. the city assumes a duty% either by promise or action
2. the city &nows that inaction could lead to harm
. there is some direct contact between the city and the in!ured party
". the in!ured party !ustifiably relies on the city2s promise.
GT,9 determination of governmental immunity
1. cannot be held liable for strict liability. no strct abty
2. discretionary function #!udging whether a drug is safe and effective by GD9$ these acts
are mmune JThis is a HUGE excepton.0
dscretonary (pannng) /mnstera (operatona) test--to determine
whether discretionary immunity applies.
discretionary #allocation of resources$.ministerial #failing to follow
through on a plan that has already been decided$
3. Feres doctrine #?,(T=? 1B7D$: mmunty for negligence involving war #anything
that happens to soldiers% and ,ardi states this includes a lot of acts and events of war$.
There is a difference between federal immunity and state immunity% and in some !urisdictions
there is a difference between state immunity and local immunity.
Kovernmental immunity: suing in Individual ,apacity
1. Is the - suing the D in his or her official capacity #attempting to get NNN from govt$ or
individual capacity #attempting to get NNN from person$5
2. If suing D in his or her official capacity% then there is ;ualified immunity.
;ualified immunity #immunity for actions *+,*-T 1. corruption 2. malicious actions . actions
outside of the scope of duty ". acting in bad faith 7. willful and deliberate harm$.
. If suing D in his or her individual capacity:
a$ in a minority of !urisdictions they as& if a public officer or employee
public officer--e/ercise of sovereign power
;ualified immunity #immunity for actions e/cluding corruption% malicious% outside
of the scope of duty% in bad faith% willful and deliberate$. #p. 7"2 in Schmdt$
public employee--not an e/ercise of sovereign power
liable in the same way as a private citi'en committing a tort.
b$ in most !urisdictions% there is no such distinction and it is !ust ;ualified immunity.
?pecial Duty )ules Depending on the Type of 8arm
Emotona Harm
6e have so far considered cases of physical in!ury% but in this section we analy'e cases where
the only in!ury alleged is emotional in!ury. The focus of this section is cases involving the
negligent infliction of emotional distress #NI*D$. The defaut rue s that a D does not
owe a duty not to nfct emotona harm.
27
The NI*D cases that have been accepted
involve facts that are so horrible they almost ma&e one gasp #a relative2s corpse mishandled4
airline passengers who have survived a harrowing accident4 a parent who witnessed the death of
a child4 a - was negligently given a false diagnosis of a terminal disease$. In order to
recover, there has to be an actua (not magnary) bass for the fear #fear of
being stabbed by needle that will contract 9ID?% no recovery unless needle is positive for
disease4 fear that child was &illed in car wrec&% no recovery when child is not actually in car
2<
$.
9n overwhelming ma!ority of courts have followed Fazone% and abandoned
physical in!ury as a re;uirement for a negligence suit. In Fazone such a suit is
appropriate if the incident has resulted in 1physical symptoms.3 Cany courts ta&e this
even further% and include any 1diagnosable physical in!ury.3
29
The Fazone v. Busch court imposes a duty only where the - suffered a 1reasonable
fear3 of physical in!ury. This is an ob!ective re;uirement #reasonableness$ regarding a claim
for sub!ective emotional distress. >ater courts have followed Fazone and gotten rid of the fear
of physical in!ury re;uirement.
2A There are a host of policy reasons for this% including: 1. flood of litigation 2. proof problems . difficult of
determining damages ". uniformity of awards
2< 8owever% there is recovery if the child is in the car% there is a fear of severe in!ury.death% and child in fact not
badly in!ured.
29 In some !urisdictions% courts allow recover by -s when they were either in the 'one of danger or were sub!ect to
physical impact. ,ourts have been reluctant to allow NI*D claims in carcinogen-e/posure cases #where there was a
threat through e/posure not manifested in bodily symptoms$% but more willing in cases of 8II-e/posure. Iirtually
all states have passed acts that allow a decedent2s estate to recover in!uries suffered by the decedent before his or her
death. -ursuant to these actions% most courts allow recovery of pre-death emotona dstress #for instance% a
I hit and &illed by a car where the s&id mar&s of A1.7 feet showed that I was 1aware of the impending peril.3$.
Note that a decedent2s estate cannot collect damages suffered as a result of the death itself #although they can
recover damages for the harm the loss did to them$.
In cases where a reasonable person would have suffered emotional distress% but the -
suffered emotional distress far more acute than the reasonable person% most !urisdictions invo&e
the eggshell psyche rule and allow recovery for the full e/tent of the damages.
D
Tarasoff Factors for deciding whether a duty should be imposed in cases of
emotional harm #where there is no NI*D in the district% or where the guidelines for duty
don2t comport with !udge2s sense of whether there should or should not be a duty$:
#f$ Foreseeabty of harm to the plaintiff4
#g$ Coseness n connecton b.w the D2s conduct and the -2s in!ury4
#h$ Mora bame attached to D2s conduct4
#i$ Pubc pocy attached to preventing future harm4
#!$ */tent of the burden to the D n mposng a duty #cost of
preventative.insurance measures$
survvor cam
1
--virtually all states allow claims by the decedent2s estate for a pre-death
in!ury #e/. if someone committed fraud against the decedent before death$. Cost courts also
allow claims for pre-death emotional distress #for instance% a I hit and &illed by a car where the
s&id mar&s of A1.7 feet showed that I was 1aware of the impending peril.3$.
2
wrongfu death cam--claim by family members against D for loss of the decedent #may
include lost wages% loss of consortium% companionship% etc.$
bystander emotona dstress

--recover for NI*D based on in!ury to another.

1. death or serious physical in!ury of another caused by D2s negligence
2. a marital or intimate familial
"
relationship between - and I
. observation
7
of death or in!ury
@
at the scene of accident
". resulting in severe emotional distress.
A

Economc Harm
D eggshell s&ull is the corrolating concept for physical in!uries.
1 This is different than a wrongful death claim% which is not for the in!uries to the spouse but rather for the in!uries
to the family as a result of the loss of the spouse #income% companionship% love% en!oyment$. 9ll !urisdictions allow
survivor claims and wrongful death claims.
2 ?ome !urisdictions re;uire physical proof #s&id mar&s$. (ther !urisdictions re;uire proof that 1. person was
conscious 2. person actually e/perienced the fear in ;uestion.
33 Portee v. |affee an e/ample #mother sues building owner for NI*D after son trapped in elevator shaft%
ultimately dies after several hours$.
" (ther courts #for instance% NF$ e/tend this to fiancees% or loo& to the length and seriousness of the relationship.
#,9% by contrast% re;uires marriage$.
35 Gor the element of 1observation%3 the Portee court re;uires both seeing the accident and being present at the
scene% but some other courts do not re;uire both #e/. seeing accident on tv$% and in some cases courts allow recovery
without either and even rela/ the time re;uirement #parents arriving at scene of accident that had already happened4
parents who learn of se/ual abuse of child% without witnessing$.
36 ,ourts do not allow NI*D recover where the in!ury is to property #e/. Lubner% destruction of priceless art
collection due to city garbage truc& not recoverable$.
37 ?ome courts have allowed recovery where a family member is hit% and reasonably be believed to be seriously
in!ured or &illed% but not actually that badly hurt. 8owever% no court has allowed recovery for error where for
instance a parent thin&s it is their child and in fact not ther chd.
6here a - breached a duty that did not cause physical or emotional in!ury% but rather economic
in!ury. The defaut rue s D owes no duty of care
38
(absent prvty of contract
or speca reatonshp) not to cause purey economc harm. #Akens v. Debow
where motel owner cannot recover against truc& driver who damaged bridge% caused NB%DDD in
loss of revenue when customers could not come$.
The default rule is that there is no duty not to cause economic harm. :ut recogni'ed e/ceptions
are a$ fishermen for pollution b$ special relationship between - and D #malpractice suit against
attorney or accountant% where the in!ury is financial
B
$ c$ privity . In a small minority of courts
economic harm claims are allowed where there is clear and overwhelming foreseeability.
Wrongfu Lfe/Brth
The cases of tort liability relating to the birth of a child involve:
1. a child born alive% but with disabilities allegedly the result of pre-birth negligence by D
"D
2. a child stillborn as a result of prebirth in!uries--this might give rise either to a wrongful death
or a survival action. These claims of action are statutory creations% and are dependent on the
e/istence of a statute. 9 ma!ority of states have interpreted statutes for wrongful death as
allowing a claim for stillbirth. 9 minority of states re;uire a live birth.
3. a parent who claims 1bystander3 emotional distress as a result of watching the birth of child
born due to negligence by D #allowed under the same theory as Portee$
". 1wrongful birth3--the D2s actions lead to birth of the child #for instance% negligently
performed sterili'ation$
7. 1wrongful life3--claim by the child against the doctor% for negligence by doctor to properly
sterili'e the child2s parents.
Interference with -rocreation and *nd-of->ife Decisions
:$6rongful :irthOif a court imposes a duty% there are measures of damages:
,$Three Tests for )ecovery:
1$Lmted Recovery (Ma|orty Approach)
#a$,osts of the unwanted pregnancy% lost wages% cost of subse;uent procedures
#b$?ometimes includes emotional distress and loss of consortium
#c$Does not ncude chd rearng costs
2$Gull )ecovery with (ffsets for :enefits
#a$9llows for the costs of child rearing% but subtracts the emotional and economic
benefits of having a healthy child
$Gull )ecovery without (ffsets for :enefits
#a$9llows for the costs of child rearing and does not subtract Pbenefit2 costs
< policy reasons: 1. difficult to measure the amount of economic in!ury 2. proof problems . economic ripple effect
#how far to go$.
B tortious interference in a business contract is a type of tort in this class.
"D ,ourts do not recogni'e claims against mothers due to negligence% and if they did this would create a host of
problems #insurance e/lusion of payment of these claims4 estranged father using theses claims to get bac& at
mother$.
2. breach of duty--proof requres that:
1. The individual could have acted differently 9ND
2. The ordinary care of a reasonable person would use dictates a different action.
ordnary care--3that &ind and degree of care which the prudent and
cautious man would use% such as is re;uired by the e/igency of the case% and
such as is necessary to guard against Jforeseeable danger0.3
"1
Learned Hand formua--influential in the way !udges assess
whether a breach of duty occurred. :Q cost of measure
-Qchance of harm >Qseriousness of harm #N value$
If:
-> #w.o measure$ - -> #w. preventative measure$ H :
then breach.
custom evdence--1. unwritten and prevailing
practices 2. trade rules or standards. Neither compliance
with custom% nor failure to follow custom is conclusive evidence of lac&
of due care% although failure to follow custom often means negligence.
"2
customary behavor R reasonabe prudence
=N>*??
1. a profession of considerable s&ill and
prudence #doctor and lawyer$.
reasonabe doctor standard
1. locality rule #standard of care in area$
"
2. similar locality rule #compares to similar$
a$ enables the court to filter out
anomalies for a particular area.
b$ provides a bigger base of
e/perts% which is advantageous
because Drs don2t want to testify
against people they &now.
. national rule #which is accepted in =.?.$
""
"1 9n e/ception to &eep in mind are emergency situations where even a prudent and cautious man might ma&e a
flawed choice.
42 9 ma!or custom case is The T.|. Hooper where a tug followed custom in failing to have a radio for the
purposes of being notified of a storm% and they were negligent despite following custom.
43 This is the ma|orty standard at least for general practitioners.
44 The courts are moving toward this natona standard% but there is not uniformity.
voaton of safety statute
45
consttutes neggence
46
per se
47
(Martn v.
Herzog) in a ma|orty of |ursdctons #minority of !urisdictions it is prima facie evidence
"<


of negligence$.
#a$ statute is violated
#b$ D is part of the class of persons to be protected
#c$ harm suffered by D is of type to be prevented
#d$ une/cused #reasonabeness not a suffcent excuse; |udge
decdes).
Speca excuses to Neggence per se
1. where it was safer under the circumstances to
disobey #Teda$
2. where D e/ercised reasonable care to comply with
the statute
. where D had a sudden incapacity and was unable
to comply with statute.
res psa oqutur--3the circumstances spea& for themselves.3----H prma face evdence
of neggence. The !udge decides whether !ury gets to consider and can even nstruct the
|ury to ma&e the inference.
a$ means of harm in the soe contro of D.
b) accident does not typcay occur in absence of negligence.
"B
S
The crucial issue is how much evidence is present.
50
S
In order to 9I(ID a res psa oqutur !udgment a D must provide evidence that
ma&es it D(=:TG=> either a$ that a reasonable person would find proof of the occurrence of
the accident made it more li&ely than not that the defendant was negligent () b$ that the
defendant2s conduct caused the accident.
nferrng neggence from the crcumstances
permssbe nference--Jma|orty view0 even if the !ury finds two
elements #control% not usual$ they can st fnd for defendant #although
unusual$.
"7 This does not apply to licensing statutes.
"@ If the statute prescribes strict liability rather than negligence% then violation of the statute ends the analysis.
"A 1. If D has not violated a statute it is still possible he will be found negligent since: 1. it is up to !ury 2. the statute
does not govern all possible negligent conduct. If you violate a statute% negligence is established as a matter of law
#assuming private right of action or purpose interpretation of the statute arguing for the li&elihood of private right of
action under duty$.
48 prma face evdence--1. evidence sufficient to establish element of a cause of action4 which leads to:
a$ if D produces no evidence contra% will result in summary !udgement
for - b$ if D does offer evidence contra% then unless
!udge finds no reasonable !ury could find for D% will go
to !ury.
"B 9 small minority of states #including ,9$ have a third prong of the test that as&s whether the harm is a result of a
1voluntary action3 by the -. This is the vast minority view. ,ardi says it is a pointless way of raising contributory
negligence within the res ipsa lo;uitur test.
7D If a res ipsa lo;uitur case reaches the !ury% and despite evidence the !ury finds for defendant% it is possible for
!udge to issue FN(I and reverse.
rebuttabe presumpton--Jmnorty view0 if the two elements are met%
!ury must find for - unless D then puts on additional evidence #and then up to !ury$.
51
res psa oqutur where there are mutpe Ds
|ont contro (one instrument% multiple people using it$
concerted acton--where the Ds entered a$ in concert to do the action and b$ many Ds
handling many different instruments any of which might be the cause of the harm. This involves
not only actual control but right of control.
72
J!oint control and concerted action most common in medical malpractice cases0
. Cause n fact
cause n fact--to establish that a D2s neggent act #must be negligent$ is a cause n
fact
7
of in!uries% the - must establish causation.
a$ "but for"
7"
causaton--but for the D2s e/istence in the world would the harm have
occurred.
b$ substanta factor
55
test--where there is more than one D #two fires e/ample$% and each on
its own would have ndependenty resuted n the damage , then each party can be
held liable for a the damage.
snge-|udgement rue--- may sue only once for all of the harm caused by the
D2s negligence.
*+,*-T
1. when harm may resut n future n|ury
#e/. - can sue now for asbestosis due to e/posure to
asbestos% and again in the future if cancer develops
and he alleges the e/posure is the cause$.
2. ?ome courts allow a present awsut for the
possbty of a future n|ury #e/. !ury awarded N7DD&
for the D-2DT ris& of future in!ury due to a piece of
catheter left inside a patient$.
7@

71 This is similar to prima facie evidence% but tends to be even stronger because of the language of presuming.
72 If someone is not physically present and also limited or negligible control then concerted action is not applicable
#hypo of anestheiologist monitoring vitals on computer screen at home$.
7 There are almost always multiple causes #e/. plane falls on woman sleeping in her bed4 ,ardi highlights even she
is a cause for sleeping in that spot$.
54 If there are two potential causes #9 and :$% and nether of them woud be suffcent on ther own to
cause the harm% but together they do cause the harm% then each s a "but for" cause.
77 There is a split in !urisdictions between those that distinguish between natural and non-natural causes. In the
distinguishing !urisdictions if 9 shoots : at the same time that : has a heart attac&% there is no cause in fact and thus
no negligence. In the non-distinguishing !urisdictions there would be negligence in this case.
56 - can sue for the probabty of sufferng future harm and try to recover for the present emotona
harm arsng out of the fear of sufferng future harm. These are distinct harms% and a - may sue for
In cases where there are safety precautions that the D has not ta&en% but where it is not cear
whether the precauton woud have prevented the n|ury #boat company operating
without life !ac&ets4 boy who does not &now how to swim drowns$% the default rule is no
causaton since there is no way to establish the li&elihood% if the safety precaution had been
followed% that the in!ury would have been avoided.
7A

Kngston v. Chcago and Northwest Raway Co. (Supreme Court of WI 1927)--
there were two fires responsible for damage to property.
7<
The !ury found the D was responsible
#spar& from train ignited$.
7B
The court finds only that the D is responsible for one of the fires% but
nonetheless rules that they are wholly responsible as the fire in ;uestion would have caused the
same damage. Rue: The court establishes the substanta factor
60
test. *ach party can be
held liable for a the damage if their actions would have ndependenty resuted n
the damage. The fact that neither fire satisfies the 1but for3 test is dismissed.
Summers v. Tce (Supreme Court of CA 1948)--three hunters% one goes up hill% the
other two fire at the bird% the - is hit with birdshot and in!ured. It is not clear who is responsible
for shooting him
@1
% although both Ds are found negligent and either one or both of them is
responsible for the in!uries. Rue: This is the aternatve abty doctrne. If one of the
Ds is responsible for the harm% but it is unclear which one% then each D is found to be a cause of
the harm% and is liable for the full damages% and the burden is on each D to prove they are not
responsible.
@2

both.
57 :ut there are cases where the failure to provide safety precautions is so severe that the burden of persuasion is
shifted to Ds #Haft v. Lone Pam Hote% where father and son drowned in pool with no lifeguard% no warning
signs% no depth of water indications% no phone numbers for police.fire.ambulance...$. In this case% the boo& points out
that the failure to provide a lifeguard might be alleged as a grounds for shifting the burden of persuasion% since were
one present the person would be a source of evidence as a witness.
58 This is a situation of overdetermned causaton.
7B It is very rare for a !udge to overrule a finding of a !ury% as happens here.
@D There is a split in !urisdictions between those that distinguish between natural and non-natural causes. In the
distinguishing !urisdictions if 9 shoots : at the same time that : has a heart attac&% there is no cause in fact and thus
no negligence. In the non-distinguishing !urisdictions there would be negligence in this case.
@1 hypo: suppose the evidence shows that Tice shot first and hit the I in the eye and ?imonson shot a split second
later and went through the e/act same who hole in the eye5
The are both causes in fact. Tice is a cause in fact of the split second of blindness before the
?imonson shot hit. ?imonson is the cause in fact of everything following when his pellet hit.
9pply the substantial factor test. ?imonson shooting here is analogous to 9 shoots I and &ills4 :
shoots I later% but this is shooting a corpse. 8ere this is shooting an 1eyeball corpse.3 ,ardi says that in some cases
li&e this the court would say that Tice is a cause in fact but ?imonson is not a cause in fact. (ther courts have said
both are causes in fact% but the damages are limited to the time period #a split second for Tice4 and everything after
for ?imonson$.
62 If there are many potential Ds each of whom is e;ually li&ely to be responsible #e/. A hunters% where each is
roughly 1"T li&ely$ would it be fair to shift the burden to each of them5 In Ha v. E.I. Du Pont de Nemours
& Co. #1BA2$ a motion to dismiss by Ds was denied in a case where the - could not identify the company
responsible for manufacturing the blasting cap that in!ured him% and there were si/ manufacturers. (n the other
hand% in Burton v. Waer #1BA"$ the court held that the burden of persuasion on the issue of causation could not
be put on seven patrolmen accused of firing their weapons during a public disturbance.
aternatve abty doctrne--If two Ds are actng n concert, and their action results
in n|ury, they are |onty responsbe for the in!ury even if you can prove that the
n|ury was caused by one person.
63
8owever% the individuals have to be in the same
physca pace to be acting n concert.
@"
Matusyama v. Brnbaum (Supreme |udca court of MA 2008)--in a case where a
physician negligently failed to diagnose gastric cancer% but the decedent2s chance of living at the
time that he consulted the doctor was arguably less than 7DT% the court adopts the loss of chance
doctrine in the mted doman of medca neggence
@7
% under the theory that the all or
nothing rule of tort recovery is un!ust #patient with 71T chance of survival dies% doctor
responsible for failure to diagnose4 patient with "BT chance of survival dies% doctor not
responsible by a preponderance of the evidence$. In awarding damages% the !ury estimated the
1full3 damages and then multiplied these by .A7 to compensate the family for the loss. Rue:
the court uses the loss of chance doctrine to ma&e the calculation.
oss of chance doctrne--used% rather than the all or nothing rule% in some cases #primarily
medical or where there are statistics$ to calculate the effect of D2s negligence on the li&elihood of
- suffering the harm. #e/. if decedent has "DT chance of living at time of treatment% and
ultimately dies following the negligent treatment% the !ury uses ." / value of life #wages% loss of
consortium% value of household labor$ to calculate damages.
i. The oss of chance doctrine is only applicable when the chance to suffer the
harm was more key than not #e/. - in car accident4 has A7T chance of
&eeping leg4 negligent treatment by doctor4 loses leg4 damages are 100%$.
ii. If the negligence reduces the li&elihood of avoiding the harm% then f ths
reducton s greater than the orgna kehood of the harm there
will be 1DDT recovery #hypo: - gets into car accident. - comes in with in!ured leg% with
@7T chance of &eeping the leg. 9nd due to the doctor2s negligence it is reduced to
2DT% and he subse;uently lost his leg. The patient would recover 100%
because (65-20%) > (100-65%). Ths s not oss of chance, ths s pure
neggence.).
enterprse abty--when there are multiple producers of an item #a particular drug$% and the
item is responsible for harm to -% but - does not &now the source of the item in ;uestion% the
court can impose market share abty #based upon the share of the mar&et that each
producer has$.
Proxmate Cause (scope of abty)
@ ,ardi gives the e/ample of two men hunting with one gun. (ne person sees the bird and tells the other% and calls
out when to shoot. The person shoots and in!ury results. They are both responsible for the harm.
@" If the hunting scenario #note @1 above$ happened and the person yelling out was on the telephone% he is not a but
for cause of the harm.
65 This seems to hold true in terms of the scope% and =.?. courts have for instance refused to e/tend the doctrine to
a case where the - alleged legal malpractice and the loss of chance to win on appeal in Daugert v. Pappas
#1B<7$.
-ro/imate cause is not a factual ;uestion #what happened here5$. It2s a !udgment call. 6e need to
limit liability in such a way that the D does not have to pay for the in!ury. This intuition is not
easily put into words or a test that can be applied in all circumstances.
Basc Prncpes of proxmate cause
9$ *ven a negligent actor cannot be held liable for a of the nfntey extendng
consequences of hs actons #holding 9dam and *ve responsible for every negligent act
in the world$
:$ *lement by which !uries decide whether the actual conse;uences of an D2s conduct were so
unforeseeabe or far-removed from the ris&s that made the actor2s conduct negligent that
the D% although blameworthy% should not be held liable for the resulting harm
,$ (perates primarily as a pocy |udgmentOunder certain circumstances% it would be
unfar to hold a U responsible for certain conse;uences
D$ 1Eggshe Sku Pantff3 rule applies to pro/imate causeOa D is responsible for all
direct in!uries caused to a plaintiff% even if those in!uries are greater than e/pected
Common Tests for Proxmate cause
i. Foreseeabty Test #Wagon Mound$Othe essential factor in determining
pro/imate cause is whether the damage is of such a &ind as the reasonable man should have
foreseen #If an in!ury occurs that was not a foreseeable result of the D2s negligence% it is not
fair to hold D liable$
ii. Drectness/Remoteness Test (Poems)Opro/imate cause is established
for all harm that flows from D2s negligent conduct% regardless of how unforeseeable% as long as
the harm was a drect resut of that conduct and was not unreasonaby remote
#Poems case: due to negligence of D2s employees% a wooden plan& was
&noc&ed into a ship2s hold4 the plan& spar&ed when it hit and ignited some fumes% which caused
a large fire4 D was held liable$
iii. rsk rue ()estatement Third of Torts ")--19n actor2s liability is limited to
those harms that result from the ris&s that made the actor2s conduct tortious3
@@
iv. Andrews Pasgraf factorsOpro/imate cause is a matter of practical politics%
convenience% common sense% public policy% and a rough sense of social !ustice. Gactors include:
i$ Foreseeabty of the harm
ii$ Drectness of the connection b.w the D2s act and the -2s harm
iii$ 6hether there was a natura and contnuous sequence b.w act and harm
iv$ 6hether the act was a substanta factor
@A
in causing the harm
v)6hether the harm was too remote n tme and space
@@ e/. throw a match into a buc&et of gasoline. The type of harm to be e/pected is fire.e/plosion. This the type of
harm that the act could pro/imately cause. If it results in a nail falling out of the ceiling into someone2s s&ull% then
under the ris& rule the act is not a pro/imate cause.
8ow is the ris& rule different from foreseeability5
They are very similar% and ,ardi says they really aren2t really that different. In both cases the issue is whether the
harm is of the type that might be e/pected to result.
@A 9ndrews is using the term 1substantial factor3 differently than in the causation test. ,ardi emphasi'es that when
courts employ what they call a 1substantial factor3 test they are invariably actually either loo&ing at
directness.remoteness or foreseeability.
Intervenng acts
Gasgow Reaty Co. v. Metcafe (Court of Appeas of KY 1972)--owner of building
failed to properly maintain glass window4 nine year old boy #ntervenng cause$ pushed on
class window% it bro&e and fell to the ground. The crowd rushed to get away from glass% person
pushed Cetcalfe% and she was in!ured #bro&en hip% partially disabled$ and sued the real estate
company. Fudgement against the company is affirmed. Rue: if a person2s negligent conduct
leads to harm% the fact that there is an ntervenng cause of someone acting innocently%
tortiously% or criminally does not relieve the original party of responsibility% f the type of
ntervenng act s at a foreseeabe
@<
even if the specfc ntervenng act s not
foreseeabe.
supersedng cause--an intervening cause that destroys the causal chain and interrupts
pro/imate cause.
@B
?ome courts still ta&e into account ntervenng acts% but there is a general trend toward the
Restatement 3rd rsk rue analysis in which case the intervening act typically does not
supersede and prevent pro/imate cause.
Gor an intervening act: analy'e it both ways #as a superseding cause% and as not$.
8obo2s hollow:
train passing station failing to drop off woman who wanted to get off% and drops her off a mile
down. The woman had to wal& through 8obo2s hollow #dangerous area$. ?he wal&s bac& and is
raped on the way.
Is pro/imate cause established under )estatement rd5 Ves.
Where the ntentona tort was part of the reason that made the Ds conduct
neggent n the frst pace, the D s hed abe #every !urisdiction finds this$.
Brauer v. NY Centra & Hudson Rver Raroad (Court of Errors and Appeas of
N| 1918)--New Vor& ,entral W 8.).).2s #D$ train hit :rauer2s #-$ wagon and harness. The
accident &illed -2s horse% destroyed his wagon% and spilled -2s goods onto the road. Third parties
stole :rauer2s goods while he was still disoriented from the collision. :rauer sued New Vor&
,entral for damages including recovery for the stolen goods. D denied liability for the stolen
goods% asserting that thrd party nterventon bro&e the chain of causation. The trial court
ruled for - and D appealed. Rue: 9 negligent party is liable for the intervening acts of third
@< The more rec&less the intervening act% the less li&ely it is to be found foreseeable.
69 Intervention of a health care wor&er% even when negligence% is never a supersedng cause #destroying
pro/imate cause$
parties if those acts should have been reasonably foreseen.
AD
#Dssent (Garrson, |.): There
must be "unbroken contnuty" for an act to be the proxmate cause.)
XXX#is this true5$: It is generally held that one who neggenty n|ures another is responsible
for any aggravaton of n|ures suffered by the - during the course of medical treatment%
even if the in!uries are aggravated owng to the neggence of the attendng
physcans.
9 preexstng n|ury cannot be considered in determining pro/imate cause #for instance%
treating a - who dies of a heart attac&% who had a heart attac& a year earlier% differently$. 6ithout
this rule either the foreseeability test or the directness.remoteness test might disallow recovery
when there is this type of pree/isting in!ury.
Defenses to Neggence: The Conduct of Others as a Contrbutng
Cause
I. Contrbutory Neggence--if - is even 1T at fault% he is barred from recovery
>imitations
Ji. Reckessness--if a D acts with rec&lessness or willful misconduct%
,ontributory Negligence is barred as a defense
ii. Last Cear Chance--if - behaved negligently and got into a dangerous
situation% but the D had the last clear chance to avoid the in!ury to the -% then the
D can be found liable.0--,ardi says we haven2t tal&ed about either% not to worry
about last clear chance or rec&lessness.

II. Comparatve Faut--if - is at fault he can still win% but the damages are determined based
on allocation of responsibility for harm between - and D#s$.
) 8istory: during the 1Bth century the courts in some states e/perimented with comparative
negligence. 9 number of !urisdictions in the late 1Bth century adopted measures allowing
railway wor&ers to recover against their employers% and this culminated in the Federa
Empoyer Labty Act of 1908 #a 1pure3 form of comparative liability% where a wor&er
could recover even if BBT at fault and the railroad was 1T at fault #though only 1T of
damages$$. The tide had turned% and today only five !urisdictions retain contributory
negligence #9>% CD% N,% I9% and D,$.
) Factors for assgnng responsbty #Restatement 8$: a$ the nature of the
rsk-creatng conduct% including any awareness or indifference with respect to the ris&s
created and the any intent with respect to the harm created by the conduct b$ the strength of
the causa connecton between the ris&-creating conduct and the harm.
Three ?ystems have developed
i. Pure comparatve neggence: - recovers for the percentage of fault of
the D.
If a D is found to be 1DT at fault% - can recover 1DT of damages from him
AD The boo& says that a recurring situation involves the leaving of &eys in an automobile ignition where there is a
statute or ordinance prohibiting leaving &eys in the ignition% and a vehicle is then stolen and subse;uently harm
occurs. In these cases courts have split% since they have disagreed whether the intent of the statute was to protect
persons li&e the plaintiffs% or whether it was to cut down on car thefts for the preservation of police resources.
ii. Modfed System #1: - who is at fault can recover as under the pure
system but only so long as that negligence is ess than the D2s negligence #"BT or less$
iii. Modfed System #2
A1
: - who is at fault can recover as under the pure
system but only so long as that negligence is ess than or equa to D2s negligence
#7DT or less$
Cultiple Defendants
i. Ma|orty vew is to compare -2s negligence to the combined negligence of all
negligent Ds #aggregatng |ursdctons$. Cinority view is to compare the
-2s negligence to each D #non-aggregatng |ursdctons$.
ii. Doctors cannot avoid or reduce percentage of negligence liability by asserting
that a - patient2s negligence caused his in!uries in the first place
Ratonae: patients who negligently in!ure themselves are still entitled to
non-negligent care from a doctor
iii. Many |ursdctons have barred claims by frefghters or poce
offcers for bringing suits against the person for negligence% but the person is still able to sue
the firefighter.police officer for negligence.
6hen apportioning damages% you have to first determine that each D was both a cause-in-fact
and a pro/imate cause of those specific damages.
Anayss of neggence wth mutpe Ds
1. 9naly'e cause in fact for each D
2. 9naly'e pro/imate cause for each D
. Gor each D where there is both pro/imate cause and cause in fact% determine what portion of
the harm they are responsible for. Kiven the different segments% a !ury will determine liability
#a T for each D$.
Unform Comparatve Faut Act--drafted with the intention of harmoni'ing state laws on
liability% under a theory of !oint and several liability. (nly a few !urisdictions have adopted
wholesale% and others have adopted it in modified form.
1(a-b): the !ury compares the relative liability of parties.
2(a)(2): the !ury determines the T responsibility 1to each claim3 #but typically if there
are multiple claims in a case% the T of liability will be the same for each$
2(b): the !ury considers: 1. who s more wrongfu?
2. who s more cosey a proxmate cause of the
n|ures?
2(d): insolvent D
A2
#the percentage gets reallocated to everyone% including the -$
3: no set offs #every party writes a chec&% insurance$.
A1 ,ardi says the difference between Y1 and Y2 is a huge difference% because if the !ury comes bac& and says 7D.7D
then they are told the rule% and in Y1 the court says !udgment for the D and in the second D pays 7DT.
A2 -olicy issues for allocating liability
1. If a D is insolvent% this is bad luc&--where should the bad luc& fall5
4(a): a D can raise a cause of action against an un-named D for contribution
5(a): contribution among tortfeasors #if D pays more than share% can sue other D#s$ for
recovery$
6: pro rata settement (%4 this is a disincentive to settle$
i. |ont and severa abty
A
--the - may sue and try to recover from any of the
Ds if they are !ointly liable% and it is the responsbty of the Ds to sort out their relative
responsibilities. #e/. 9 is struc& by a drun& driver% :% who was served alcohol at bar ,. If it was
found that : is BDT at found% and , is 1DT at found% if the damages were N1 million% then under
proportionate liability : would pay NBDD%DDD and , N1DD%DDD. =nder !oint and several liability 9
may recover the fu damages from either : or ,$.
A"

Wat Dsney Word Co. v. Wood (Supreme Court of FL 1987)--the -
was in!ured% and the court found that she was 1"T responsible% a D #her fiancee now husband$
was <7T responsible% and Disney was 1T responsible. ?ince the first D was unable to
pay% the court ordered Disney to pay <@T of the damages #A7&$. The ?upreme ,ourt
of G> affirms this decision% and refuses to discard !oint an several liability.
A7
a$ ntentona torts--The =niform ,omparative Gault 9ct does not bar these comparisons% but
in practice !urisdictions do not allow reduction or increase because of intentionally tortious
conduct.
b$ D nctes the Ps tortous conduct--if part of the ris& caused by the D2s negligent
conduct was the li&elihood of inciting the -2s intentionally tortious conduct% then comparative
fault is not allowed. The - would be able to recover without reduction for their own tortious
conduct. #e/. where a D wears a Na'i uniform to a Fewish school% and the - attac&s him4 the -2s
conduct is foreseeable$.
ii. Contrbuton Among |ont Tortfeasors--at common law there had been no right
on the part of the D% to get contribution or partial payment of the !udgment from another D% even
though the other D had also been held liable. 8owever% n most Amercan |ursdctons
ths rue has been aboshed or modfed so that a D that pays the award can
coect from other Ds. #Unform Comparatve Faut Act 5(a))
In several liability% the bad luc& falls on the - #who can2t collect$. In pure !oint and several liability% the bad luc&
falls on the other Ds. =nder the =niform ,omparative Gault 9ct% the bad luc& falls on everyone #including the -$.
73 severa abty--the - only recovers from each D up to that D2s share of responsibility. If a D is insolvent or
immune% - cannot collect that share.
74 )easons in favor of !oint and several liability: 1. even if the court determines a T responsibility% each D s a
proxmate cause of the entre n|ury 2. if proportionate liability was used there would be instances where
the P was not neggent yet coud not coect the entre award because one party was financial unable
to pay . even where a P s partay at faut, hs cupabty s not equvaent to that of a D% since the
- has shown a lac& of due care for his own safety #which is not tortious$ but the D has shown a lac& of due care for
the safety of others #which is tortious$. ". emnatng |ont and severa abty woud hnder n|ured
Ps from recoverng adequate compensaton.
A7 Cany states% in moving from contributory negligence to comparative fault% have discarded !oint and several
liability.
a$ Insovent neggent Ds--if any D is insolvent or cannot be collected from% that party2s
percentage of fault is divided proportionally among the other negligent parties% including the -% if
applicable. This is an excepton to pure |ont and severa abty. Unform
Comparatve Faut Act 2(d).
b$ Reapportonng after one D settes--if one D settles% there are two different ways of
reapportioning the amount that they previously owed.
i$ Pro rata--that D2s percentage of liability is removed from the total pool of
liability and cannot be recovered from anyone else
#e/. award of NDDD e;ually against three Ds4 one settles% and regardless of the
amount of the settlement% the other two Ds now responsible for N2DDD$
ii$ Pro Tanto--if one D settles% only the dollar value of that settlement is
removed and his percentage of fault is untouched for !oint and several purposes #e/. award
of NDDD e;ually against three Ds4 one D settles for N7DD4 now the other two Ds
are responsible for N27DD$.
c$ assgnment of faut to non-partes--if for whatever reason the - fails to include a
relevant D in the lawsuit% there is a spt n |ursdctons about whether the court can assign a
share to an unnamed D or whether the named Ds simply have to cover the amount that would
otherwise be distributed to the non-party.
A@
9lso% under the Unform Comparatve Faut
Act 4(a) a named D can raise a 1separate action3 to recover from an unnamed D.
Assumpton of the Rsk--If the - e/pressly or impliedly consents to confront the harm
from a particular ris& created by the D% - is held to have assumed that ris& and thus is barred
from any recovery for negligence.
9nalysis of assumption of ris&
1.express assumpton of rsk
AA
i. was there a valid contract% #is there consideration% etc.5$ and what does the
contract cover5 #does it cover the event in ;uestion5$
ii. is the contract enforceable #is it void for public policy5$5

excupatory agreements--the defaut rue is that these
agreements #which release a party from the conse;uences of their own
negligence$ are not aganst pubc pocy% e/cept in a few
instances.
A<
Tunk Gactors for determining whether e/culpatory agreement is
void for public policy
1.there is not free and open barganng between the parties
2. the agreement covers a pubc necessty #e/. public utilities%
common carriers% inn&eepers% public warehousemen$.
76 Unform Comparatve Faut Act 2(a)(2) e/cludes !ury determination of fault as to non-parties.
77 ,ourt generally have a strong deference in favor of the individual2s right to contract% and this is part of the reason
that express assumpton of rsk is still honored.
78 There is a split in !urisdictions about whether such agreements can be made by parents on behalf of children
engaging in ris&y behavior.
. there is an open nvtaton to the pubc #e/. a lot of
people might be in!ured% and then barred from recovery$
". the property is paced under the contro of the other
AB
7. business is suitable for pubc reguaton
@. If there is a disparity in bargaining power% under adhesion
contract could the P pay addtona fees and have further
coverage.
S
If - was only heedessness or ndfferent to rsk% the assumption of ris& defense will
not succeed for D #- must have impliedly or e/pressly assumed the ris&$
S
If the D commits an ntentona tort% then there is no assumption of ris&.
2. mped assumpton of rsk--
i. - recognzed
80
and understood the partcuar rsk
<1
or danger
involved
ii. - voluntarily chose to encounter the ris&
two types:
a$ prmary mped assumpton of rsk
82
: - accepts &nown
ris&s of particular activity% and D has no duty of care with respect
to - #e/. person at baseball game% who cannot e/pect a batter not to
hit ball into stands$.
b$ secondary mped assumpton of rsk
83
: - voluntarily
encountering a &nown ris& created by D2s negligence #e/. - using a
defective lawnmower rather than replacing it due to cost of
replacement or la'iness$.
Lafrenz v. Lake County Far Board (Court of Appeas of IN 1977)--- was fatally
in!ured when an automobile participating in a demolition derby !umped a barrier stri&ing and
&illing her as she stood in the pit area. In the trial court the D moved for summary !udgment%
which was granted on the basis of a waiver signed by the -. The waiver is an indication of
e/press assumption of ris&. The court considers whether the circumstances in which the waiver
was signed involve any of the e/ceptions listed above% and finds that it does not. Rue: In cases
in which a - recogni'ed and understood the ris& or danger involved% and voluntarily chose to
encounter the ris&% then the - is barred from recovery against the D absent special circumstances
#e/culpatory agreements and e/ceptions above$.
79 e/. s&i slope is under control of resort4 for white water rafting% river not under control4 for e/pedition tour guide%
nature is not under the control.
80 This is different from comparative fault% where there is no re;uirement to prove the - knew anything. =nder
negligence the standard is shoud have known #reasonable person$% but under implied assumption of ris& the
standard is knowedge.
81 The scope problem: e/. no assumption of ris& by evander holyfield for ear biting off% since not the particular ris&
of bo/ing ring4 getting on the Glopper #,ardo'o$ a person does not assume the ris& of decapitation. e/. if you play
russian roulette where someone tells you the gun has 7%DDD chambers% but it actually has 7% then probably the suit
would not be barred #,ardi says some courts ignore probability% but these courts are wrong$.
<2 Cost courts have gotten rid of primary implied assumption of ris&% since it can be handled under normal
duty.breach.
< *very !urisdiction that has comparative fault has gotten rid of secondary implied assumption of ris&.
Herod v. Grant (Supreme Ct of MS)--- was sitting in the top of a pic&up truc& driven by
D with a headlight and a rifle to 1rid the appellee2s bean field of predatory wild animals.3 8e
was in!ured% and the trial court awarded him N17& in damages. (n appeal% the ?upreme court
reverses on the grounds that he assumed the ris& of the endeavor.
<"

In the past the doctrine of assumption of the ris& was used to preclude employees to sue their
employers regarding unsafe wor& conditions% but much of this litigation is now absorbed by
wor&er2s compensation.
Auckenthaer v. Grundmeyer (Supreme court of NV 1994)--- was in!ured after
being &ic&ed by horse while riding through obstacle course with random birds to train dogs. In
the trial court the Ds were granted summary !udgement under the theory of implied assumption
of ris&. The - appealed on the grounds that implied assumption of ris&% while the law in ,9% is
not the law in NI. The Ds argued that although this is true there are public policy reasons for
imposing implied assumption of ris&% including the flood of litigation that may follow without
out. The court finds that there is no implied assumption of ris& in NI nor is there a need to
impose this precedent.
The secondary type of implied assumption of ris& #e/. - using a defective lawnmower bc doesn2t
want to buy another one$ has been largely abrogated due to the rise of comparative negligence.
9s Auckenthaer demonstrates% many courts have been tempted to merge the primary type of
implied assumption of ris& into comparative negligence as well.
?trict liability
<7
strict liability
<@
is its own cause of action #although you might thin& of it as replacing duty and
breach$. It is not neggence. The D can show that they acted reasonaby% and the
reasonable person under the circumstances would act the same% and still held responsible.
Procedure for strct abty
1. - has to prove this is the type of suit where ?> applies:
i$ animal
domestc anmas
In order for the - to be able to prove strict liability the standard is knows
or shoud have known but there is still not fault re;uired. If the - cannot
prove ?>% then he can proceed under negligence and try to prove duty.
breach.
<" The D argues assumption of ris& rather than comparative negligence% since the former bars recovery and the later
would li&ely only reduce it.
85 The liabilty is withoutfault or culpability.
<@ 6hy impose strict liability5
1. incentivi'es Ds to avoid dangerous activities
2. the - gets paid every time under ?>% and not under negligence
. arguably less transaction costs in ?> than negligence
". unless the D is made to pay the cost of the harm% this cost is not included in the cost of the good or services
The danger that materiali'es into in!ury has to be of the knd that the D
shoud have been aware #*/. pit bull shits in pool% someone swims%
drin&s the water% gets sic&% there is no ?>$.
=nder negligence% if the D proves reasonable care% he will win4 under ?>%
!ust showing &new or should have &nown is enough to get to causation.
wd anmas #animals not typically domesticated% and dangerous$
strict liability for harm caused% regardless of whether D &new or should
have &nown
ii$ abnormally dangerous activity
Abnormay Dangerous Actvtes
87
(Restatement 520)
Keneral )ule: one who maintains an abnormally dangerous condition or
activity on his premises or engages in an activity that presents an
unavoidable ris& of harm to the person or property of others may be liable
for the harm caused even if the defendant has e/ercised reasonable care to
prevent the harm
Factors:
a$ high degree of ris&
b$ li&elihood the resulting harm will be great
c$ inability to eliminate the ris& by e/ercise of due care
d$ activity is not a matter of common usage
e$ the activity carried out in an inappropriate place
f$ is the value to the community outweighed by its dangerousness
Restatement 3rd test for abnormally dangerous activity:
1. does it present a ris& of harm that cannot be eliminated with due care5
2. Is it a matter of common usage5
iii$ product liability
<<
#all three are a potential source of strict liability
<B
$
Restatement (Thrd): Products Labty (ma|orty approach)
(ne engaged in the business of selling or otherwise distributing products
who sells or distributes a defective product is sub!ect to liability for harm
to persons or property caused by defect.
Girst ;uestion for a defective product: what s the type of defect 5
a$ manufacturng--departs from its intended design
87 not products, not conditions on land
88 9lways also argue neggence also% using res psa oqutur if appropriate.
<B third-parties can sue for ?> where they are in!ured #e/. product e/plodes out window hits bystander$ whereas
under negligence foreseeability would be relevant.
b$ desgn--the foreseeable ris&s of harm posed by the product could have
been reduced or avoided by the adoption of a reasonabe
BD
alternative
design
B1
by the seller or other distributor.
Three possible approaches to design defects
1. ordnary reasonabe consumer expectatons--
-roduct may be found defective in design if it violates 1ordinary consumer
e/pectations3 where consumer e/pectations actually e/ist from a
base of common e/perience with that product and the situation that
gave rise to the in!ury #usually doesn2t apply to comple/ products
or brand new products$
i. Gactors
a. The manufacturer2s product failed to perform as safely as an
ordinary consumer would e/pect it to
b. The defect e/isted when the product left the manufacturer2s
possession
c. The defect was a Plegal cause2 of the -2s Penhanced in!ury2
d. The product was used in a reasonable foreseeable manner
2. rsk-utty
92
--9 design is defective and its
production is negligence per se if its ris&s outweigh its utility
Gactors:
i. Kravity of the danger posed by the challenged design
ii. >i&elihood that such danger would occur
iii. Cechanical feasibility of a safer alternative design
iv. ,ost of an alternative design
v. 9dverse conse;uences to the product and to the consumer
that would result from an alternative design
)is&-utility test is usually used where a product or a use is too
comple/ or unordinary to be assessed by the ordinary consumer
3. reasonabe aternatve desgn--9 design is defective if a
reasonable alternative design would have reduced the foreseeable
ris&s of harm posed by the product
i. Gormula for determining )9D:
If rsk-utty of desgn (more rsky) > rsk-utty of
aternatve desgn then there s a defect
c$ warnng--the foreseeable ris&s of harm could been reduced or avoided
by reasonabe instructions or warnings
three circumstances where they are re;uired:
1. safety instruction--how to minimi'e ris&s associated with the use of the
product.
BD The standard for design defect and instructions or warnings is reasonableness. Gor manufacturing defect there is
no such re;uirement.
B1 The D doesn2t need to have &nown of the alternative design for the - to ma&e this claim.
92 4. a small minority of !urisdictions have a combned ordnary reasonabe consumer/rsk-utty
test% where the default is to gauge by consumer e/pectations% and if there are no clear e/pectations #for instance% the
product is new$ to then consider ris&-utility
2.unintended ways #e/. use the &nife to cut fruit% not your arm$
. irreducible ris&--notify the consumer of an irreducible ris& associated
with use of the product.
Zuestions for warning claims
1. Is a warning necessary5 #some times its not--no need to warn of
the danger of a &nife$
9 warning is only re;uired where absent the warning
people will not &now of something that they very li&ely
won2t &now and need to &now.
2. Is the warning ade;uate5
i. ade;uately indicate scope of danger
ii. reasonably communicate e/tent or seriousness of the harm
that could result
iii. physical aspects ade;uate to alert reasonably prudent user
to danger #prominence$
iv. simple directive may be insufficient if it doesn2t indicate
the conse;uences
B
v.ade;uacy of means used to convey warning #on product% in
manual% etc.$
B"
vi. appropriate for li&ely audience
B7
vii. balanace of costs and benefits of additional warning
earned ntermedary doctrne--the duty of the D is to
ade;uately warn the physician #the 1learned intermediary3$ of the
ris&. #this is an e/ception to the general rule that the manufacturer
must warn the user of ris&s associated with a product4 it is limited to
medical devices and pharmaceuticals% where the individual is unli&ely
to use on their own. In this case it is enough to warn only the doctor.
*ven where the warning includes a directive to tell the user of ris&s%
they still have been found not to be re;uired to do this$.
6ith regard to causaton% courts
typically include a rebuttable
presumption that the - would have
still used the product even if warned.
a$ the manufacturer
b$ the retailer
c$ component parts manufacturer Jonly if the part was the source of the
in!ury0
93 ex. case where man took off bladeguard, blade flew off, ricocheted, hit him. The injury was slicing but
not as expected. But the court found for the D (Ryobi) that in this case there was no need to warn of
every possible thing, in which case people would disregard the warning.
94 the more dangerous the product, more likely the warning needs to be on the product itself (rather than
on box or separate manual, which could be disregarded or thrown away).
95 ex. if product to be used by children, they need to give the warning in pictures; if used largely by
immigrants from Mexico, need to have warning in spanish.
the test for res psa oqutur n strct abty
1. - has to show the accident only occurs as a result of defect
2. evidence supports the conclusion more li&ely than not:
a$ the cause of the harm was the defect
b$ the defect was present at the time of sale
Defenses for products abty
1. msuse doctrne--the product wasn2t used in the intended way. some
courts view this is an affirmative defense. most courts view this as a lens
through which the view the case: if the - used the product in a way outside
of intended use then this can be used as a defense.
2. open and obvous dangers queston (mnorty)--this is a defense%
although it is a minority rule% and now it is a part of the ris&-utility rule. In
this defense the D argues that the - was aware of the defect.
9 warning itself is not sufficient to absolve a D from a design defect. #*/. you cannot sell a car
and then provide a warning that there are no seatbelts4 when there is an option of more safety
#normal airbags included% side airbags optional$ the law is less clear$.
6hat about products li&e cigarettes and lawn darts% which are inherently dangerous5 Imagine
how the different tests play out #consumer e/pectation: no defect% we all &now4 reasonable
alternative design: no defect% since no reasonable alternative4 ris&-utility test: yes% defect$. ?o
courts in these cases apply the ris&-utility test #and !ust ignore the other tests$.
?ome unavoidably unsafe products will not be found defective% in spite of their danger #&nives%
guns% prescription drugs$.
Intentional torts
Zuestion for intentional torts
1. Did the D intend his actions and the conse;uences of the actions5
Restatement Thrd: Labty for Physca and Emotona Harm
Intent
9 person acts with the intent to produce a conse;uence if:
#a$ the person acts with the purpose of causing that conse;uence
B@
or
#b$ The person acts &nowing
BA
that the conse;uence is substantially certain to result.
96 ex. boy pulls out chair, aunt falls and breaks hip. what is the consequence that she falls or that she
breaks hip? What is required is contact (so in this case the consequence is contact with the ground).
97 hypo: boy pulls chair out from aunt who is about to sit down% and he isn2t thin&ing about the
fact she is about to sit% and wants to sit down% it is going to be neggence #not intentional tort$.
,ardi points out that in intent #above$ the difference between #a$ and #b$ is huge #intending to
harm vs. substantially li&ely it will happen$.
Battery and Assaut
battery--the infliction of either a 1harmful contact3 or an 1offensive contact.3 The necessary
intent is either to produce the harmful or offensive contact% or to put the other in 1imminent
apprehension of such contact.3 #this need not be body contact4 e/. grabbing a plate out
of someone2s hand could be ruled a battery4 e/. stri&ing the horse upon which a person is riding
is a battery4 e/. spitting in someone2s face is an 1offensive contact34 e/. &issing someone who
doesn2t want to be &issed is also an 1offensive contact3$
*lements of :attery
1. 9n act intended
B<
to cause
2. and in fact causes
. an offensive contact or unconsented touching or trauma #though no intent to
cause in!ury necessary$
". upon the body of another% including anything so connected with the body as to
be customarily regarded as part of the other2s person.
hypo: is a manufacturer guilty of battery where they &now that 1 out of " million users will be
harmed. No% not battery. There has to be intention that a specific person will be harmed. This is a
limitation on proving intent.
hypo: 9 goes up to his friend% :% and slaps him on the bac&. It2s actually not :% but ,. Is this a
battery5 No. :ecause 9 believed that it would be implied consent #assuming it would not be
1unconsented touching3$. 9nother reason this would li&ely not be a battery claim is because
there are a variety of everyday minor interactions that shouldn2t be punished.
dgntary harm--battery claim where there is no real physical in!ury% but rather an offense to
dignity.
In claims of dignitary harm% courts typically assess whether a reasonable person
would have been offended or traumati'ed by the harm.
transferred intent doctrine--applies in intentional torts the same as in criminal law.
eggshell s&ull rule--applies in intentional torts the same as in negligence.
assaut--the intentional putting of another in imminent apprehension of a harmful or offensive
contact.
assault
BB

1. threatening of physical act or offer of corporal in!ury
2. that causes the - reasonable fear
98 The person acts knowng
"1
that the consequence is substantay certan to resut.
BB this includes conditional #e/. leave now or i2ll &ill you$ with the e/ception of when the D is entitled to the
alternative #e/. get off my land or i2ll carry you off% and D owns land$.
. of imminent bodily harm
hypo: D &new that - was unreasonably !umpy and nervous. 9nd D went and said 1boo3 and -
frea&ed out and in!ured. The D2s &nowledge is ta&en into account in this case% and it is still an
assault.
Trespass
The most important function of this claim today is environmental cases. In the past it was based
on actually being on the land. Cost courts have gotten rid of direct.indirect trespass% but have
retained the intentional.unintentional trespass distinction.
The ntenton is to enter the and #regardless of whether they &new the land was someone
else2s$.
The four levels of culpability relevant to trespass
1.No act that led to D entering -2s land #e.g. thrown onto land by another$--no trespass
2.9ct that led to D entering -2s land #whether non-negligent% negligent% or rec&less$ but no intent
to enter the land #e.g. tire blew out while driving which caused car to enter -2s land$--no
trespass, but neggence.
3.Intent to enter land% even if reasonable belief that land was public or even owned by D--
trespass, actua or nomna damages, though not key not puntve
damages
4.Intent to enter land with &nowledge that land is owned by another--trespass, and
perhaps puntve damages
trespass
1DD
--an actionable invasion of a possessor2s interest in the e/clusive possession of land.
possessor2s interest is the 1feeling
1D1
3 or 1sense of
ownership3 in the land.
nusance--an actionable invasion of a possessor2s interest in the use and en!oyment of his land.
There is a distinction between nuisance and trespass.
e/. playing loud music% a nuisance and not a trespass. 8owever% if the music is so
loud that you leave the house and stay in a hotel% it is a trespass.
hypo: ,ardi spits into another person2s yard. Is this nuisance or trespass5 There is an argument
both ways.
II*D
IIED (ntentona nfcton of emotona dstress)--
100 Under certain facts, an event could be a trespass and an abnormally dangerous activity. look into this
Cardihighlights.
101 If the owner doesnt feel that there is a disruption in the possessory interest, then there is no
trespass.
1. e/treme and outrageous conduct
1D2
#no definition% e/cept under the )estatement that it is
conduct which would lead a reasonable person to e/claim 1outrageous3$.
2. that intentionally or rec&lessly
1D
. causes
". severe emotional distress
7. creates liability for emotional distress or physical in!ury
|gap filler tort% that is often only allowed when there is no other cause of action0
8ustler v. Galwell--
Ferry Galwell against >arry Glynt #owner of 8ustler maga'ine$. >arry Glynt posted a full page ad
with Galwell drun&% having se/ with his mother in an ad. Galwell sued for II*D. The court said
no liability. :ecause Ferry Galwell is a public figure.
?tandard for public figures
1. false statement of fact
1D"

2. made with actual malice.
Defenses for Intentona Torts
i. Consent
1D7
--can be e/pressed in words or inferred from the circumstances.
1D@
6hat is
consented to is what a reasonabe person would e/pect under the circumstances. Gor this
defense to wor&% the - must have consented to the type of n|ury that occurs #e/.
however% if in bo/ing the in!uries include bro&en bones% but if opponent puts a weight inside a
bo/ing glove and hits you% there is no consent$.
The central issue in a consent defense is to what did the plaintiff consent.
In a sport conte/t% you typically consent to the violation of the rules in a
manner that they are typically violated #hit below the belt in bo/ing4 not
consent to being hit by tennis rac&et by opponent when changing sides$
ii. Sef-Defense
1DA
The ability to use this defense is a reasonable amount of force if the D behaved as a reasonable
person
1D<
would under the circumstances. It is per se unreasonable to use deadly force in defense
of property. It ma&es no difference if either person is a man or a woman% but the physical
characteristics #height% strength% etc.$ are ta&en into account.
102 -This is decided by a |ury. It is probably irrelevant if what is said is true #e/. telling a little girl she2s short% not
as smart as you% cannot ride the rides at Disneyworld$.
1D If there is evidence only of rec&lessness% there is a good chance the court will infer intention #to prevent the D
from lying and saying they didn2t intend$.
104 In Huster the ad was not found to be a 1statement of fact3 since no one would view the ad and ta&e it as true.
1D7 This is the analogue of assumption of the ris& as a defense to negligence.
1D@ 6hen the action consented to is criminal% it has been consistently found that the consent of the victim does not
prevent criminal prosecution. The !urisdictions are split on whether there can be a tort claim under these
circumstances.
1DA The analogue in negligence is comparative fault or contributory negligence.
108 This is decided by a !ury.
hypo: pulling a gun on someone who insults you: unreasonable.
hypo: intending to not fully punch% drawing bac& at last minute% the standard is what is
reasonable.
hypo: 8olloway was threatening >ane2s wife. self-defense can be used to protect third-parties.
however% if wife is a nin!a% there will not be necessary for the protection #defense of third persons
below$.
caste doctrne--one need not retreat from one2s home.
defense of thrd persons--is allowed under the )estatement% in situations
where there is a reasonable belief that a$ the third person has a right of self defense4 and
b$ intervention is necessary for the protection of the third person.
iii. Necessity
Pubc Necessty--a public entity or private person is able to do damage when
it is reasonable to do so to achieve some public good. This is essentially a utilitarian
defense.
In some situations there is general need for an action that will cause harm
#destroying buildings to prevent the spread of fire4 destroying the wallpaper in the
bedrooms of smallpo/ victims4 destroying commercial el& suffering from
tuberculosis4 aerial spraying for a mediterranean fruit fly over the entire state of
,9% even though the pesticide causes the paint on cars to deteriorate$. In a
criminal conte/t: when the police burn a building to the ground in order to get
escaped felons hiding inside to come out% the owner can recover the value unless
the government can demonstrate 1public necessity3.
Prvate Necessty--is a valid defense if one causes damage to another2s
property in a situation where it was reasonably necessary to do so to save an individual2s
own life or property. ,an only avail oneself to a private necessity defense if the
property that you are defending is more valuable than the property you are
destroying to save it #this is an ob!ective standard4 not whether you &new that the
value% but whether it is more valuable$.
hypo: what result if the value of the doc& was ten times the value of the boat. No
defense% given that there is no defense on utilitarian grounds.
II. Terms
burden of proof--has two parts: 1. burden of production #who has burden to enter evidence$
and 2. burden of persuasion #who has burden to convince !ury.!udge$.
contrbutory neggence--if the plaintiff is 1T at fault they cannot collect.
drected verdct--a decision for party in which the !udge ta&es the case away from the !ury
after all evidence has been presented#ruling that reasonable minds could not differ$. This can be
granted when there is 1$ no dispute of facts () 2$ no reasonable !ury could find otherwise.
duty of care--an element of the negligence claim. The only element decided by court.
expert--one who is able to testify before the !ury on matters of fact within a special field.
1DB
faut--negligent breach of duty. This concept established by Brown v. Kenda (1850).
forseeabty--a crucial part of the breach of duty with regard to ordinary care. The person in
;uestion does not need to be able to foresee the specific harm. This is necessary but not sufficient
for breach of duty% since the individual needs to be able to act differently and it must conflict
with the ordinary care of the reasonable man.
froc and detour--a master is not responsible for the frolics of employees% but is responsible
for detours in course of performing assigned tas&s #respondeat superior$.
|NOV--!udgement notwithstanding the verdict% a type of verdict as a matter of law ordered at the
end of a case #the !udge overturning the !ury% in which he.she finds 1no reasonable !ury3 could
find$.
|udge/|ury--triers of fact. |udges rule on matters of law% |ures decide ;uestions of fact. 9
!udge can create more consistency in decisions going forward% and this is desirable.
ndependent contractor--an employee whose s&ill the employer !ustifiably relies on and
thus employer does not enter into active control of the e/ecution of the enterprise.
Learned Hand formua--used for calculating breach of duty and reasonableness of failing to
ta&e a measure #U.S. v. Carro Towng$. This is never used in !ury instructions.
msfeasance/nonfeasance--misfeasance is the ris&-creation rule. nonfeasance is the rescue
rule. The )estatement proposes the 1but for3
11D
test as a way of disentangling these concepts: if
the harm would not have occurred 1but for3 the D% then it is misfeasance. :ut this is a messy
concept to implement. Prce v. E.I. Dupont #2D11$ shows how difficult it can be to
disentangle the concepts.
ordnary care--the standard established by the prudent and cautious person #based on the
circumstances$. #Brown v. Kenda). 1That &ind and degree of care which the prudent and
cautious man would use% such as is re;uired by the e/igency of the case% and such as is necessary
to guard against Jforseeable danger.3 #originally 1probable danger3$.
per se evdence--establishes element as a matter of law. #this is a stronger than prima facie
evidence which allows D to put on contra evidence or !ury to find otherwise$.
prma face evdence--1. evidence sufficient to establish element of a cause of action4 which
leads to: a$ if D produces no evidence contra% will result in ?F for - b$ if D does offer evidence
contra% then unless !udge finds no reasonable !ury could find for D% will go to !ury.
respondeat superor--a form of vicarious liability #employer.employee$.
rue of aw--represents our resistance to anarchy% arbitrariness% and pre!udice and our instance
of neutrality% consistency% generality% transparency% predictability% procedural fairness.
rue/standard--a rule creates consistency over time. a standard is a guide that allows for
fle/ibility as circumstances change.
scope of empoyment--1. performing wor& assigned by employer and 2. engaging in a
course of conduct sub!ect to employer control.
summary |udgment--a !udgement for one party before the completion of the trial. It can be
granted if: 1. no dispute of the facts () 2. no reasonable !ury could find otherwise. There is
tactical value of re;uesting ?F: 1. unpredictability of the !ury 2. even if you lose it goes to the
!ury . save time and money.
109 Note that an e/pert can testify to whether an individual used reasonable care. 9 !ury is permtted to come
to a dfferent concuson than the e/pert *+,*-T 1. in medical malpratice cases% where they typically cannot4
2. in cases where% in the absence of e/pert testimony% the plaintiff is unkey to survve a drected verdct.
11D This test has not been adopted by any courts.
tort--3a civil wrong casing in!ury% not arising out of a contract or statute.3
tortfeasor--the individual responsible for the wrong.
trespass/trespass on the case--forms of action under *nglish law for in!uries an
mmedate resut or a consequenta effect of someone2s actions.
vcarous abty--a form of neggence #liability based on status rather than faut$.
III. ,ases
Negligence
Iicarious liability
Wong-Leong v. HIR #8awaii 1BB"$
Can a summary |udgment moton be granted regardng
scope of empoyment gven drnkng at a work
promoton party? (N)
|ones v. Heathsouth TVH #Idaho 2DDB$
Is the standard that a person acts on a prncpas behaf
reance or reasonabe beef wth regard to ndependent contractors
n a respondeat superor cam? (RB)
Gault
Brown v. Kenda #?upreme ,ourt of C9% 1<7D$
111
In the case of unntentona n|ures from a stck n breakng up a
dog fght, what s the standard of care and who has the burden
of provng that standard? (OC of P&C M; P)
The )easonable Can
Vaughan v. Menove #*ngland 1<A$
Is the standard of faut n a neggence cam nvovng a
haystack that s set on fre and burns down a neghbors cottages
that the ndvdua acted to the best of hs |udgment or the
standard of the man of ordnary prudence? (M of OP).
Goss v. Aen #?upreme ,ourt of NF 1BA<$
Shoud a mnor who s a novce sker and crashes nto someone
be hed to the standard of the reasonabe man or the reasonabe
person of ke age, ntegence, and experence? (RP of AIE).
The ,alculus of )is&
Barker v. Cty of Phadepha #*astern Dist. of -9% 1B77$
If an ndvdua can foresee that a possbty, such as runnng
over a huge paper mass wth a garbage truck may ead to harm,
such as the death of hs chd, s he neggent f he does the
acton? (Y).
Unted States v. Carro Towng Co. #,ircuit ,ourt of 9%
1B"A$
Coud a reasonabe tra |udge have found that CTC breached ts
duty of care when the bargee eft the boat that drfted away,
was damaged, and sank? (Y. Learned Hand Formua: PL(no
preventatve measure) - PL (wth preventatve measure) > B (cost of
measure).
The Gunction of the Fudge and Fury
Batmore & Oho Raroad Co. v. Goodman #?,(T=?%
1B2A$
What s the standard of care for a motorst crossng a raroad
track, n the day tme wthout a tran whste or any nose, and
does reasonabe cauton requre hm to stop & ook before crossng?
(Y; accordng to Card, Homes erred n 1. not aowng |ury to
decde matter of fact 2. creatng a generazed rue based on
very specfc crcumstances). This ruling puts the burden of care for crossing
railroad trac&s on pedestrians.motorists.
Pokora v. Wabash Raway Co. #?,(T=?% 1B"$
111 This case established the almost inescapable existence of the duty to use ordinary care.
Does the standard of reasonabe cauton of Goodman precude
a neggence cam for a motorst where there s no safe pace for
hm to stop and vsuay check for a tran? (N; accordng to Card,
Cardozo here mts Homes decson n Goodman).
?tandard of ,are: Iiolation of a ?tatute
Martn v. Herzog #,ourt of 9ppeals of NV% 1B2D$
Is a |ury nstructon n a case n whch a motorst drove wthout
hs headghts, voatng a state statute, that tes the |ury ths s not
neggence tsef a reversbe error? (Y, f pantff s of cass of
persons and n|ury s of the knd to be avoded).
Teda v. Eman #,ourt of 9ppeals of NV% 1BB$
If persons wakng aong a hghway, voatng a statute for
pedestrans b/c the desgnated sde has heavy traffc, does ths
consttute neggence as a matter of aw? (N. The s an excuse
to the rue of safety statutes).
*ffect of *vidence of ,ustom
Dempsey v. Addson Crane Co. #=? District ,ourt% 1B@7$
If t s customary n the constructon ndustry to use sngs to
attach a |b to a boom, and there s an nexpensve and safer method
of attachment, s t possbe to fnd a party guty of neggence
where they comped wth custom? (Y. reasonabe prudence not
common prudence).