FFULL TORTS OUTLINE

INTRODUCTION
Tort Law: A civil remedy, under which provisions an actor that caused harm to someone is held liable to pay
recovery for those damages
A. Litigation Process
1. Initial Pleadings (Complaint, answer and affirmative defenses)
a. Can motion to dismiss (Procedural reasons, failure to state a claim)
2. Discovery
3. Pre-trial Motions – Can motion for summary judgment (when reasonable minds cannot disagree)
4. Trial – directed verdict (before the jury decides, D says P didn’t not prove an element) verdict from
jury ->
a. Judgement Notwithstanding the Verdict - JNOV (Judge gets the jury’s verdict on file for
appellate reasons but defers to his own verdict)
5. Appeal
B. Functions of Tort Law
1. Corrective Justice: To right a wrong, monetary compensation
2. Optimal Deterrence: help prevent futurfe torts by threatening potential wrong doers
3. Loss Distribution: sharing the burden of compensation (ex. With insurance companies)
4. Compensation: promote compensation of those who have suffered injury
5. Redress of Social Grievances: ex. Individuals against authority or corporations, vicarious liability
C. Bases of Liability
1. Intentional Torts
2. Negligence: There is fault for not minimizing the risk, D had a duty to take a certain degree of care
and that duty was breached
3. Strict Liability: liable simply because the act was committed, liability without fault
a. X causes injury to Y, X is liable
b. Hammontree v. Jenner
i. D became unconscious while driving, as a result of a epileptic seizure, crashed into P’s
property injuring & damaging it. Court refused to apply the doctrine of strict liability to
automobile drivers.
ii. Negligence: (have to satisfy all the elements of it, duty owed by the def to the plaintiff,
breach of duty - by the def's failure to conform to the req. standard of conduct,
causation - there is a connection between the neg. conduct which caused the harm and
damage - actual loss of a kind. As opposed to ->
iii. Absolute liability (when evidence shows that a driver on a public street or highway
loses his ability to safely operate and control such vehicle bc of some seizures or health
failure, that driver is nevertheless legal liable for all injuries and property damage, as a
result of the party's inability to control their vehicle)
 Vicarious Liability – liability for the actions of another
II. INTENTIONAL TORTS
A. Involve three things: (1) Intent, (2) conduct and (3) result
B. Intent: there are individual definitions for intent for each tort – no single definition
C. BATTERY
1. RULE: A person is held liable for battery if he or she has acted with intent to inflict a harmful or
offensive contact AND has inflicted an offensive contact either directly or in-directly.
2. INTENT: Intent to make contact or substantial certainty of such contact
a. Substantial Certainty

1
 i. Garratt v. Dailey: D, 5 year old boy, pulled a chair out from behind P as she was about
to sit down, which caused P to have a harmful contact with the ground & fractured her
hip. It was found that D had substantial certainty that a harmful contact would occur if
he moved the chair.
 Rule: Intentionality is central to the tort of battery, and while a minor who has
committed a tort with force is liable as any other would be, a plaintiff must
establish that the defendant committed his or her act for the purpose of causing the
harmful contact or with substantial certainty that such contact will result.
b. Exception to substantial certainty
i. a company is substantially certain that their product will likely harm a person at some
point in time. This company is not liable because having a general knowledge that
someone may be hurt is not sufficient — it would cause a flood of litigation.
ii. Shaw v. Brown & Williamson Tobacco Co.: P attempted to sue D (Tobacco company)
for harm caused by smoking cigarettes. D did not know with a substantial degree of
certainty that the secondhand smoke would touch any particular non-smoker. Its true
they may have known that it might affect some non-smoker. Generalized knowledge is
insufficient for intent.
c. Transferred Intent
i. If you intend to make contact with one person but make contact with a third person
instead, the intent to make contact is transferred to the person that you actually hit.
ii. Hypo: Danny throws a ball intending to make contact with Jake, the ball misses Jake
and hits Krista in the head instead. Danny is liable for single (transferred) intent battery.
d. Single Intent
i. The only intent needed is the intent to make contact
ii. Vosburg v. Putney: D kicked P in the shin, which aggravated a pre-existing condition
and P ended up having to get his leg amputated. In this case, the only intent necessary is
the intent to make an unlawful contact to define the tort of battery, battery can simply
involve the intent to make a contact that has a harmful result.
 Rule: In actions for assault and battery, Plaintiff must show either that the
intention was unlawful, or that Defendant is at fault. The wrongdoer is liable for all
injuries resulting directly from the wrongful act whether they could or could not
have been foreseen by him.
 Another takeaway here was that it P & D were on the playground playing soccer,
there would have been an Implied License: it is implied that you are allowed to do
certain things in that decorum, meaning that some everyday contact in certain
situations is expected.
iii. Wagner v. State of Utah: Ps were at a store when D, ward of the state, attacked P. P
argued that D committed negligence and for the dual intent rule that he was not capable
of, D argued for the single intent rule bc the state cannot be charged with battery. Court
opted for the Ds definition.
e. Dual Intent
i. Intent to make an unlawful contact and that that contact be harmful or offensive
ii. White v. Munis: P was a worker in an assisted living home, was attempting to change Ds
diaper, D hit her in the jaw and told her to leave. TC said that D had to be able to intend
that the contact be harmful/offensive, AC overruled and said that the only intent needed
is the intent to make contact.
3. ACT: any voluntary act that is a harmful or offensive contact
a. Offensive: offends a reasonable sense of personal dignity

2
 i. Alcorn v. Mitchell: P & D were in court together for an unrelated case, D spat in Ps
face. The bodily contact was offensive, especially given the circumstances. A
reasonable person must think that it is offensive also, take into consideration the social
context, physical nature and intentions.
b. Harmful: Physical harm, include any physical impairment of the condition of the body, illness
included
c. Contact: can be direct D makes direct contact with Ps person or extension of or indirect (as
seen in Garratt) D sets an action in motion that ends up making contact with P
d. Contact extends to objects closely identified with the plaintiff
i. Ps person includes his body and those things in contact or closely connect to it and
identified with it, clothing, an object held, etc.
ii. Fisher v. Carrousel Motor Hotel Inc.: P was at a luncheon, D (worker of D), snatched
the plate from Ps hand, called him a negro and said that he could not eat here. This was
all in front of his fellow co workers. Court found that D is liable for offensive battery
iii. Rule: there can be battery without actual physical contact as long as there is contact
with something that closely identifies with the P
e. It is not necessary that the P be aware of the contact at the time it occurs
4. RESULT: Direct/indirect harmful/offensive contact does occur
a. Contact: a person’s body extends to any part of their person and anything to which is attached
to it or anything identified with it.
b. In/direct contact – unpermitted physical contact with the P’s person by the D or by agency set
in motion by D (Garratt)
D. ASSAULT
1. RULE: Assualt occurs when the Ds acts (attempting to or offering to strike) intentionally causes the
victim’s reasonable apprehension of immediate harm/offensive contact.
a. P MUST BE AWARE THAT THEY ARE BEING ASSAULTED.
2. INTENT: Intent to cause harmful or offensive contact or imminent apprehension of some sort in P
a. Intent to make a contact: D intends to cause an offensive or harmful contact with P [OR]
b. Intent to cause imminent apprehension of a contact: all that is necessary is that P is
apprehensive of the harm that D can cause to them, it does not matter if D cannot actually
carry out the act.
i. Allen v. Hannaford: D pointed a gun at Ps face & threatened to shoot them. D argued
that the gun was not loaded so therefore it was not assault. Court said that it does not
matter if she could carry out the act, the only thing that matters is the apprehensions
created in the mind of the person assaulted.
c. Transferred intent: The transferred intent doctrine applies where the defendant intends to
commit a tort against one person but instead (i) commits a different tort against that person,
(ii) commits the same tort as intended but against a different person, or (iii) commits a
different tort against a different person.
i. Intent to assault can be transferred, D intended to do a battery but missed and only
caused an assault
3. ACT: attempt to strike (harmful/offensive contact), or “offer” to strike, there does not need to be
actual contact,
a. Harmful: A touching is harmful if it injures, disfigures, impairs or causes pain to any bodily
organ or function
b. Offensive: The objective standard for “offensive behavior” is whether a reasonable person
would consider the behavior to be offensive.
i. P must be aware of the danger at the time that it occurs
ii. P must have apprehension that they will be contacted, not a third person
c. Actual Physical Contact Not Needed:
3
 i. I.de S. & Wife v. de S.: D was trying to get into Ps house with an axe, P stuck her head
out and D swung it at her but missed. Even though D did not touch her, he is still liable.
ii. Rule: There is assault when an attempt to make contact is perceived, even though there
is not physical contact
iii. Blackstone Commentary: conduct involved is the threatening, attempting to contact but
failing to do so, “an unlawful setting upon one’s person”
d. Threats: words alone do not constitute an assault unless there is imminent harm
i. Brower v. Ackerley – P kept getting calls calling him names, threatening him.
 Rule: words alone do not constitute an assualt, but words may add to the act
(placing your hand in your pocket and saying I am going to shoot you)
ii. Conditional threats – If X, then I will do Y.
 Tuberville v. Savage: P & D were in court for a separate case, D said something
insulting to P, P said “if we weren’t in court, I would get my sword”, D responded
with force, hurting P. D alleged that P assaulted him and he responded in self
defense.
 Rule: conditional threatening statement, without an imminent threat of harm, does
not constitute an assault.
4. RESULT: P is put in imminent apprehension of harm or contact
a. Imminent: there will be no significant delay, it is enough that one is so close to striking
distance that he can reach the other almost at once, or he can ready a weapon in a short
interval of time
b. Apprehension: does not mean fear, it means that you expect harmful or offensive contact to
IMMIENTLY occur. P must be aware of the assualt to be apprehensive.
c. Imminent apprehension is in the mind of the P
i. Allen v. Hannaford – liability is not about if the actor believes that he has the ability to
inflict harm, its about what P perceives.
d. Threat to a third person: The plaintiff must have apprehension that he or she will be contacted
not a third person. (ex. If you see someone about to be beaten up)
e. A combination of factors can cause imminent apprehension when they are taken together
i. Cullison v. Medley: Ds came to Ps house in the middle of the night, had weapons on
their persons, insulted P, motioned for their weapons, P was put in apprehension,
suffered pains after. The motions coupled with the presence of weapons made for a
reasonable apprehension on the part of P.
f. Damages do not have to be proven, P can recover nominal damages.
E. False Imprisonment
1. RULE: A person is liable for false imprisonment if he wrongfully and intentionally confines another
in a particular space or vehicle against her conscious will by means of force or threat of imminent
force.
2. INTENT: The intent to confine P or another where P is instead confined or in addition
a. Transferred intent: you meant to confine on person, but you confined another, still liable.
b. Hypo: A locks the door to the freezer without checking to see if anyone is in there, B is in
there over night and freezes to death. There was no intent, this is not false imprisonment.
3. ACT:
a. Define False: wrongful or illegal
b. Confinement:
i. Boundaries – place of confinement is board, being prevented from leaving an area,
confinement must be TOTAL with P having no reasonable means of escaping
 You can be confined inside a city (area of imprisonment can be large), a car, inside
a country

4
 ii. Bird v. Jones: Guards blocked Ps path from going into an area that was off limits. P
was free to walk back in the other direction. Court found for D bc P was not
imprisoned.
 Rule: FI can take place when a party is prevented from leaving or passing a place
but there must be a notion of restraint like personal menace or force accompanying
it.
 Not FI: blocking ones path, excluding them from a certain place or country
iii. Time frame – any appreciable amount of time, however short
c. Means of imprisonment
i. The imprisonment must be non-consensual
ii. The P must know of the confinement, must be either aware of the confinement or must
suffer some actual harm (if P is confined while sleeping & suffers physical harm, P can
recover for the physical harm)
iii. Restraints – physical barriers, force or threats, exerting legal authority or collateral.
 Social pressure is not significant
 Collateral – someone takes valuable property from you and you have to remain
there to protect it
 Coblyn v. Kennedy, Inc.: P was an old man, accused of stealing an ascot from a
store he just bought a coat from, D stopped him, grabbed his arm, told him he
better go back, they went back to the store & P started to have chest pains. Found
for P
1. Rule: There is false imprisonment when there is any general restraint and
any demonstration of physical power which, to all appearances, can be
avoided by submission, if submitted to as if any amount of force had been
exercised.
iv. Whittaker v. Standford: P went on Ds boat to return to the U.S. Upon arrival D refused
to let her use his boat to make it to shore, she stayed on the boat against her will but
was allowed to occasionally travel ashore.
 Rule: Refusing to provide one with the means to overcome a physical barrier can
constitute restraint such as can give rise to a claim for false imprisonment.
d. Means of Escape:
i. P knows of a reasonable way of escaping -> Not FI
ii. P knows of a way of escaping but it is dangerous or make be offensive to their dignity -
> FI
iii. There is a reasonable way of escaping that P does not know of -> FI
4. RESULT:
a. To be liable D must be an active participant in the confinement (giving info to other Ds does
not count)
b. Damages: Mental harm caused by a restraint of the freedom to move around or physical harm
caused by the confinement
5. Defenses:
a. (1) Shopkeeper’s Privilege: a person can be detained by a merchant in a reasonable manner,
in the vicinity of the premise, for a reasonable length of time on the grounds that there was
reason to believe they were stealing.
b. (2) Consent,
c. (3) Protection of person or property: restraint or detention, reasonable under the circumstances
and in time and manner, imposed for the purpose of preventing another from inflicting
personal injuries or interfering with or damaging real/personal property in one’s lawful
possession or custody IS NOT UNLAWFUL.
5
 i. Sindle v. NYC Authority: Kids on a bus, started to become rowdy, D (bus driver),
drove them straight to the police station. It was found that it was reasonable under the
circumstances for D to do so.
d. (4) Reasonable means of escape
i. Hypo: A locks B, an athletic young man, in a room with an open window at a height of
four feet from the floor and from the ground outside. A has not confined B.
6. Not a Defense:
a. Mistaken identity
b. Good faith that the confinement was justified
F. Intentional Infliction of Emotional Distress (Outrage)
1. RULE: There is IIED where one intentionally/recklessly acts in an extreme and outrageous manner
which causes severe emotional harm to another.
2. INTENT:
a. Intentionally: D intended to cause emotional distress in P
i. Transferred intent does not work the same way here as it does in other torts, it is
applied very limitedly. See special relationships.
b. Reckless: disregard of a high probability that emotional distress will result (step below sub.
Cert.)
i. Between intent (I meant to do it) & negligence (Didn’t meant to)
c. Wilkinson v. Downton: D played a joke on P telling her that her husband was in a bad
accident, this caused P to have a nervous breakdown. Court found for P on the grounds that D
acted recklessly in telling a lie to P that he had to be sustainably certain would result in a
negative consequence. Set up the elements of IIED
3. ACT: Conduct that is so extreme and outrageous as to shock the conscious
a. Extreme & Outrageous conduct: as to go beyond all possible bounds of decency & to be
regarded as utterly atrocious
i. State Rubbish Collectors Ass’n v. Siliznof: P collected garbage from D, P demanded
that D pay or suffer physical consequences, P forced D to sign a note to pay, Ds
countersued for IIED, claiming he was so scared by the threats he became ill for several
days.
 Rule: There exists a cause of action IIED for serious threats of physical violence
whether or not such threats technically rise to the level of assault. When one acts
outrageously, intends to cause such distress and does so, he is liable for the
emotional distress and the bodily harm resulting therefore.
b. Special relationship
i. Contreras v. Crown Zellerbach Corp.: P was employed by D, P coworkers
continuously humiliated and embarrassed him, made false claims about P, P was fired,
P was unable to find another job be of the rumors.
 P was allowed a cause of action bc the D was in a position of power and did not
stop it and changing societal norms. The respondent’s failure to control their
employees resulted in the appellant’s subjection to intentional and severely
indecent conduct. This case demonstrate that cases may be deemed outrageous
when a person with authority (employer) abuses power.
ii. Rockhill v. Pollard: P, her mother-in-law, and infant daughter were seriously injured in
a car accident. The infant daughter was apparently lifeless; both adults had scrapes and
bruises. A passing motorist took them to D, a physician. D did not examine the adult
women and gave the infant a very brief examination. He ordered the women to wait
outside in the cold and rain until P’s husband picked them up. This case demonstrates

6
 that outrageous professional conduct can be sufficient for action for intentional
infliction of emotional distress.
a. Special sensibilities: where D’s knowledge that the other is peculiarly susceptible to
emotional distress, by reason of some physical or mental condition or peculiarity.
i. Contreras v. Crown Zellerbach Corp.: Liability for abuse of special sensibilities, what
is seen as outrageous may depend on society’s values.
ii. Patterson v. Mclean Credit Union: No liability, P alleged that her supervisor harassed
her by staring at her for several minutes at a time, assigning her too many tasks, and
assigning her sweeping and dusting jobs not assigned to whites, and by telling her that
blacks were known to work slower than whites.
 The court rejected the tort suit on the grounds that the allegations fell short of the
North Carolina law. This case demonstrates how actions conducted by an employer
may be deemed “outrageous.” This case also demonstrates the special sensitivities
to historically oppressed racial groups (a sensitivity that changes with social
values).
b. Mere insults are not extreme & outrageous
i. Exception: verbal threats of physical harm against P
 Section 48 Restatement of Torts: planes, trains, hotels, etc. common carriers/public
utilities - common carriers and public utilities have been held liable for gross
insults that would not otherwise be actionable under the common law
requirement of extreme and outrageous conduct (i.e. conduct is directed at guests or
passengers).
c. Totality of the circumstances:
i. George v. Jordan Marsh Co.: P was badgered with phone called from D, a bill
collector. D made calls during late hours of the evening and sent her letters marked
“account referred to law and collection department,” wrote letters saying that her credit
was revoked, that she was liable for late charges, etc. P suffered two heart attacks as a
result of the calls. The court upheld P’s claim for emotional distress. This case
demonstrates how courts will consider the totality of the circumstances in determining
whether a conduct is “extreme” and “outrageous.”
d. First amendment: freedom of expression considerations
e. Future Threats: Generally, not actionable bc the threat needs to be imminent.
2. RESULT: Severe Emotional Distress
a. SEVERE: The law intervenes only where the distress inflicted is so severe that no reasonable
man could be expected to endure it.
b. Emotional distress: includes all highly unpleasant mental reactions, such as fright, horror,
grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and
nausea."
c. Damages
i. Some courts state explicitly that the plaintiff must present expert medical testimony to
prove that the alleged emotional distress was severe.

7
8
E. Trespass to Land
1. RULE: There is trespass when there is intent of entry or cause another to enter on to the land of the
Ps, the conduct is the voluntary act and the result entry on to the land, regardless of damages.
2. INTENT: D must have intended to enter on to the land, it is not enough that you enter the land.
Single Intent.
a. Transferred intent: if you intended to go on to another’s land but you end up one someone
else’s, the intent to enter the land is transferred.
b. The only intent that matters is the intent to do the act that causes the intrusion onto land or have
known with substantial certainty that trespass would result.
3. ACT: Intent to enter the land or cause another object/person to enter the land.
a. Intrusion of intangibles: Where the intrusion consists of intangible things such as dust particles,
smoke, vibrations, noise, odors, etc., some courts treat the intrusion as a nuisance rather than a
trespass. Other courts allow trespass charges where significant damage is caused.
b. Extent of Possession: Trespass may be committed on, beneath or above the surface of the earth.
With the exception of flight by an aircraft, unless it enters the immediate reaches of air space
or interferes sustainably with the others use or enjoyment if the land.
c. Mistaken Entries
9
 i. Dougherty v. Stepp: D entered Ps land with a surveyor, claim part of Ps land was his,
did not cause any damage, the land was actually Ps. D was still liable to P.
 Rule: There is trespass when there is unauthorized, unlawful entry into the close of
another, entry constitutes trespass, regardless of the degree of damage done in the
process
 Good faith, that you believed you were on your land or another’s, is not an
exception.
d. Accidental entries: do not constitute a claim, someone’s car accidently crashes into your yard
bc of something out of their control (random lion runs in front of car) -> not liable for trespass,
however, they are not held liable for the damages.
i. Except where the actor is engaged in an abnormally dangerous activity, an
unintentional and non-negligent entry on land in the possession of another, or causing
a thing or third person to enter the land, does not subject the actor to liability to the
possessor, even though the entry causes harm to the possessor or to a thing or third
person in whose security the possessor has a legally protected interest.
e. Privileged entries; (entries with the permission of the possessor) do not constitute a claim for a
tort action
i. Dobrin v. Stebbins: a door salesman was attacked by a dog; the dog’s owner was liable
because there were no signs warning the salesman and others of the dog and the
salesman was coming peaceably/with privilege to the land.
ii. Privilege cannot be abused Brown v. Dellinger: D, a child, was playing in P’s garage
with his permission. D was playing with matches and set fire set fire to the garage. This
case demonstrates that you can be found for trespass if you are allowed to be on the
land but you abuse this privilege of consent.
f. Trespass ab initio: a person lawfully enters upon the property of another…and then abuses his
license by doing some tortious act.
4. RESULT: An entry to the land that was caused by the defendant’s actions or an action that the
defendant set in motion.
a. Unforeseeable harm: A trespasser is liable for harm to person or property caused to the owner
even if the harm is not foreseeable.
b. Damages: it doesn’t matter whether actual damages were caused; trespass to land is complete
upon the defendant’s intentional intrusion and the defendant will be liable for at least nominal
damages for harm to the plaintiff’s right to exclusive possession.

5.

10
 6. Trespass to Chattels
a. Rule: Trespass occurs when D intentionally interferes P’s exclusive right to possession of
property without permission
b. Intent: Intentionally intermeddles with the Ps chattel in some way
i. Good faith is no defense, intent can be transferred
ii. Intent to physically interfere with the others use or enjoyment of a chattel
c. Act: Conduct is mere interference, unpermitted use for a substantial period or outright
disposition of the property
d. Result: Interference P must show actual physical damage
i. Unpermitted use for substantial period is compensable harm
ii. P can recover for NOMINAL damages when D has intentional DISPOSSESSED P of
chattel; but P CANNOT recover for NOMINAL damages when D has merely interfered
with P’s CHATTEL.
7. Conversion
a. Definition: a voluntary act by one person inconsistent with the rights of ownership of an-other.
b. Intent: D need only have intended to deal with the cattle in the manner in which it was deal.
c. Act: P must show a volitional movement by D of some part of his body that results in a
substantial interference with another’s possession of chattel
d. Result: Substantial dispossession (e.g. destruction of chattels, selling of chattels after they are
stolen, refusing to surrender chattels on rightful demand.)

F. Defenses to Intentional Torts

1. Consent:
a. Exceeding the scope of consent: Even if P consents, D will not be privileged to go
substantially beyond the scope of consent except in emergencies.
i. Mohr v. Williams: D had consent to operate on one ear, but not the other ear
 Lack of consent in medical treatment: if a plaintiff is subjected to a substantially
different procedure from the one to which she consented, battery will lie
ii. Unforeseen consequences of consented contact: P’s consent is effective even when the
consequences are unforeseen by both P and D. (i.e P consents to punch on nose and
broken nose results). It matters that D performed the kind of act to which P consented.
b. Actual Express Consent: “I agree” Writing, words, expressly given consent
i. Mohr v. Williams: P was supposed to have surgery on her right ear, while in surgery,
her doctor found that her left ear was worse off, operated on the left instead, P brought
suit bc she did not consent to surgery on that ear. Did P consent to an operation on the
left ear when she consented to an operation on the right? – No.
1. Rule: If an operation is performed without Plaintiff’s consent, and the
circumstances were not such as to justify its performance without consent,
then the operation is wrongful and thus unlawful.
 Kennedy v. Parrot: A surgeon discovered and removed a cyst on the plaintiff’s
ovary which led to complications during an authorized appendectomy. Consent
forms, empowers the surgeon to perform a different surgery if it effects the area of
incision
1. Rule: Physicians may lawfully perform necessary operations so long as they
stay within the area of the original incision and the patient (or the patient’s
representative) is incapable of giving consent.
c. Implied Consent:
i. Medical Emergency – Emergency Rule: “Every human being of adult years and sound
mind has a right to determine what shall be done with his own body; and a surgeon

11
 who performs an operation without his patient’s consent, commits an assault [battery],
for which he is liable in damage. This is true except in cases of emergency where the
patient is unconscious and where it is necessary to operate before consent can be
obtained”
ii. Hoofnel v. Segal: P consented to an appendectomy, the consent form authorized other
procedures that were medically necessary and related to the surgery. It was found her
ovaries & uterus were in the way and might be cancerous, so the dr. removed them. P
sued saying that she did not consent to the removal of those organs. The court ruled that
while a consent form was not conclusive on the issue, it created a presumption of
consent.
iii. Apparent Consent (Conduct of the Plaintiff): a RPP would infer from Ps conduct that
there was consent.
 Even when the person concerned does not in fact agree to the conduct of the other,
his words or acts or even his inaction may manifest a consent that will justify the
other in acting in reliance upon them. This is true when the words or acts or
silence and inaction, would be understood by a reasonable person as intended to
indicate consent and they are in fact so understood by the other.
 O’Brien v. Cunard: P was on a ship where she needed to be vaccinated, P said she
was already vaccinated but there was no mark. D said that she needed the shot, P
held out her arm and did not say anything and D gave her a shot. P sued for the
adverse reactions.
1. Rule: When consent is used as a defense to an assault action, the totality of
the circumstances must be considered, but only overt acts and outward
manifestations may demonstrate such consent or lack thereof. Silence or
inaction can be seen as consent.
iv. Custom
 Community, neighborhood or informal custom
 Consent in professional sports:
1. Hackbart v. Cincinnati Bengals: Plaintiff, a professional football player, was
injured when one of Defendant’s players intentionally struck him during a
game. Both continued to play in the game and did not make any complaints at
the time. Plaintiff later sued to recover for his injuries.
2. Rule: Even in an inherently violent situation such as a game of professional
football, it is possible for one to go beyond its customs (the harm was not an
“inherent risk” of the game) and so be liable for injuries in tort.
v. Social Norms: you can imply consent from the situation, ex. Someone puts their hand
out for you to shake – it is a social norm that they want you to grab their hand
vi. Objective Manifestation: It is the objective manifestations by P that count – if it
reasonably seemed to one in D’s position that P consented, consent exists regardless of
P’s subjective state of mind.
d. Consent is not effective if:
i. the plaintiff’s consent was procured by fraud
ii. the plaintiff’s consent was given under duress (physical force or threats thereof)
iii. The plaintiff’s consent is ineffective if it is due to a mistake.
e. Criminal Acts:
i. Minority- the plaintiff's consent is valid and thus bars the suit for battery.
 Reasons:
1. The majority position ignores the principle of "pari delicto"--both parties are
equally at fault, so neither should be allowed to sue;
12
 2. no cause of action should arise from an improper cause;
3. "volenti non fit injuria"—plaintiff voluntarily expressed his willingness to be
struck, so suffers no (legal) harm;
4. the minority rule better deters fighting—presumably because both parties may
be deterred from fighting if they know they will not be able to sue if injured
 Barton v. Beeline: P (under age girl) claimed that she was raped by Ds cab driver,
D offered evidence that P consented and the court found no cause of action for P
based on the minority view.
 EXCEPTION: Hudson v. Craft: P was solicited to participate in an illegal fight, P
consented and sustained person injuries from his opponent. P sued for damages.
Court found D liable bc P could not consent to an illegal act.
1. Rule: exception to the above Restatement rule, to the effect that when it is the
policy of the law primarily to protect the interests of "a particular class of
persons . . . from their inability to appreciate the consequences of such an
invasion," the consent of a person within that class is invalid.
ii. Majority- that plaintiff's consent is not valid when he consents to a fight that is illegal,
and thus he may still sue for battery when injured by the other fighter.
 Reasons:
1. Since the state is a party to a prosecution for breach of the peace, no one may
consent to such breach
2. the civil damage suit aids enforcement of the criminal law;
3. the rule deters fighting—presumably because the parties will be deterred from
fighting if each knows he may be sued by the (injured) loser, and most
fighters expect to win.
f. Consent & STDs
i. Mcpherson v. Mcpherson: Defendant failed to disclose STD to wife of 31 years, this is
actionable trespass to person and consent is automatically voided because the defendant
was deceitful — he intentionally misrepresented his diseased condition to his wife.
ii. There is no liability if defendant is negligent and does not know or have reason to know
of his/her STD
2. Insanity: NOT A DEFENSE TO GARLOCK
a. General Rule: insanity is not a defense to a tort claim, where the party is permanently insane
(except in defamation, torts that require a specific intent – nothing we have learned so far)
b. Justify holding an insane person liable for intent:
i. They still have the mental capacity to make the voluntary act of making contact
ii. Public policy- Imposing liability tends to make those who watch over them more careful,
If D has money and she injures the nurse it is unfair to have P carry the damages caused
by D, People might fake insanity in order to avoid liability and Courts do not want civil
cases to dive into mental state
c. McGuire v. Almy: P was a nurse at a mental hospital, D was having a mental episode, P went
in to try to subdue her and D hit her. Court said where an insane person by his act does
intentional damage to the person or property of another he is liable for that damage in the
same circumstances in which a normal person would be liable”
i. Rule: the insane person is held liable even if her mental condition prevents her from
understanding the consequences of her actions
d. Polmatier v. Russ: D killed someone and then claimed to be insane. Court found that rational
choice was not require for intentional torts.
3. Defense of Land & Property – an affirmative defense (typically used for battery, assault, or
false imprisonment)

13
a. Affirmative Defense: the defendant argues that even if the plaintiff has made out a prima facie
case of intentional tort against the defendant, the latter was justified in using force against the
plaintiff and therefore not liable.
b. Use of Non-Deadly Force: an actor is privileged to use reasonable force, not intended or likely
to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the
actor’s land or chattels
i. Peaceful (non-forcible) invasion - you must first ask them to leave and if they don’t you
can use reasonable force (M'Ilvoy v. Cockran)
ii. Forceful invasion - privileged immediately to use actual, reasonable force to expel the
intruder, without the necessity of a demand to leave
iii. But the possessor is not entitled to use deadly force (i.e., force calculated to cause
death or serious physical injury) merely in defense of property.
c. Use of Deadly Force, in person: If the entrant threatens the possessor or his family with force
capable of causing death or serious physical injury, the possessor is then privileged to use
similar force to repel the attack
i. Force is only justified if, the actor reasonably believes that the intruder is likely to
cause death or serious bodily harm to the actor or to a third person whom the actor is
privileged to protect
ii. Timing Requirement: threat must be imminent
d. Use of Mechanical Devices or Traps Threatening Death or Serious Bodily Harm:
i. Trespassers: mechanical devices or traps threatening death or serious bodily harm may
not be used against mere trespassers, even if a sign is present.
ii. Katko v. Briney: D set up a shotgun trap in a property that she owned to hurt
trespassers, P broke into the house and was harmed by the trap. Court held that mere
trespass against property other than a dwelling is not a sufficient justification to
authorize the use of a deadly weapon by the owner in its defenses
 Rest. 2d. §85: says no liable for the use of a device for the purpose of protecting
land or chattels but §143 says that someone has to be in the home, it can only be
used against a violent felony and when the house is actually occupied.
iii. Property of substantial value: deadly force might be used in person to defend valuable
property in a warehouse. (Rst. 2d §143)
e. Recapture of Chattels
i. Allows the owner to immediately go after someone that has stolen their property, there
must be prompt discovery & prompt pursuit to justify the actions
ii. Fresh pursuit: where another’s possession began lawfully (e.g., a conditional sale), one
may use only peaceful means to recover the chattel. Force may be used to recapture a
chattel only when in “hot pursuit” of one who has obtained possession wrongfully, e.g.,
by theft.
 Reasonable force, not including force sufficient to cause death or serious bodily
harm, may be used to recapture chattels.
 Kirby v. Foster: A warehouse manager (Foster) turned over a payroll to the
bookkeeper (Kirby) to distribute to employees. On advice of counsel, Kirby took
out $50 that he claimed was owed him and returned the balance. Foster then used
force on Kirby to retake the $50, injuring Kirby. D used force to retake money from
P. P peacefully took money entrusted to him because he honestly believed that the
money was due to him.
1. Rule: If the owner has consented to the other taking the property, the property
will be deemed to be no longer in the owner’s possession, and the privilege to
retake it will not be available (unless consent is obtained by fraud)

14
  Hodgeden v. Hubbard: Plaintiff purchased a stove from Defendants on credit and
took it away. Defendants quickly discovered that Plaintiff’s credit information was
false and immediately set out to overtake him and recover the stove. Defendants
ultimately retook the stove by force, and Plaintiff sued for assault and battery.
1. Rule: One has a right to retake property that is rightfully his so long as it can
be done without unnecessary violence to the person and without creating a
breach of the peace.
iii. Rationalization: “the recognized necessity of a speedy remedy where legal process is
slow and cumbersome, and likely to be ineffective because it cannot operate in time, or
cannot compel the specific return of the chattel.”

4. Necessity
a. Rule: A person may interfere with the real or personal property of another where the
interference is reasonably and apparently necessary to avoid threatened injury from a natural or
other force and where the threatened injury is substantially more serious than the invasion that
is undertaken to avert it
i. Nature
ii. Reasonably Apparent: The privilege of necessity exists as long as the necessity is
“reasonably apparent.”
iii. Resistance: A property owner may not resist a party who has the privilege of necessity
iv. Ploof v. Putnam: P and fam were out on a boat when there was a bad storm, P tied his
boat to Ds dock to get out of the storm, D untied it and P lost property and was injured.
Found that P had a necessity to be there.
 Rule: Necessity will justify entries upon land and interferences with personal
property that would otherwise have been trespass
v. Rationale: the law places a very high value on human life.
5. Liability for Damages without fault: someone who uses necessity as a defense will still be liable
for damage caused

15
 a. Vincent v. Lake Erie Transportation Co.: D was at Ps loading dock, D got trapped there bc of
a storm, D kept their boats tied down in a way that saved their boat but caused damage to Ps
dock
i. Rule: If one subjects another’s property to damage at the sake of saving their own, they
are liable for the damages caused therein
b. Acts of God: violent force of nature without influence of humans; result in neither the force of
P or D (i.e a violent storm).
6. Public Necessity: Where the act is for the public good (e.g., shooting a rabid dog), the defense is
absolute.
7. Private Necessity: Where the act is solely to benefit a limited number of people (e.g., the actor ties
up his boat to another’s dock in a storm), the defense is qualified; i.e., the actor must pay for any
injury he causes. Exception: The defense is absolute if the act is to benefit the owner of the land.
8. Law of General Contribution: Everyone is treated as joint owners in the property that is damaged.
(i.e a cargo boat driver needs to dump cargo to save ship & rest of cargo, owners of other cargo on
ship compensate person who lost cargo).

9.

16
 NEGLIGENCE
A. Rule: an actor conduct whether commission or omission that creates unreasonable risk of harm to others.
The elements that must be satisfied would be duty, breach of duty, cause in fact, proximate cause and
damages.
1. Elements (ALL elements must be proven):
a. Duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to
others – an obligation to live up to some standard
b. Breach: conduct that falls below standard of care (often referred to as negligent conduct)
involves concept of reasonable person & calculus of risk
c. Causation in fact: (aka actual cause) – a causal connection between Ds breach in care and the
harm that occurred
d. Proximate cause: the scope of liability – how far the liability goes, **HAS NOTHING DO
WITH CAUSATION!!**
e. Damages: physical injuries of persons or property
2. State of mind is immaterial to negligence: negligence is based on conduct.
3. Brown v. Kendall: P & D’s dogs were fighting, D was trying to break up the fight using a stick, D
accidently hits P in the eye, injuring him severely. Remanded for a new trial. P must show that the
act was either intention was unlawful, or that the D was in fault, if the injury was unavoidable and
the conduct of the D was free from blame, he will not be held liable
a. Rule: If the act of hitting the P was unintentional, on the part of the D, and done in doing that
of a lawful act, then D was not liable, unless it was done without the exercise of due care.
4. O.W. Holmes, JR: loss from an accident should lie where it falls (with the P) unless the P can prove
that it was the fault of the D
B. Burden of proof: The burden of proof is the on plaintiff to prove ALL of the elements to prove that D was
negligent and also prove that they were not

DUTY
A. General Rule: Duty to conform conduct to a standard necessary to avoid an unreasonable risk of harm to
others
B. Cardozo View: you are only liable for foreseeable risk to the particular plaintiff (the zone of danger - zone
within the risk created by the D's negligence could operate on the plaintiff (limited view), depends whether
the D has created a foreseeable risk to that person
1. Is there any foreseeable risk to this P? - for the purpose of finding whether this duty was owed
2. Negligence towards someone is not enough; there must be a breach of a duty toward the plaintiff and
there is none unless harm to the plaintiff was foreseeable
C. Andrew’s View: If there is a foreseeable risk of danger to anyone, the duty is owed to everyone, (general
view)
1. The duty to exercise care is owed to all. If the Ds conduct unreasonably creates a risk of harm to others,
it is negligent. One is liable for the consequences of that negligence, foreseeable or not.
D. Affirmative Duties
1. Generally: the law of affirmative duties deals with circumstances under which the defendant may owe
a special duty of care to the plaintiff. Usually, this will be a duty owed in addition to the general duty to
due care the defendant owes under the “reasonable person” standard. In other words, the defendant may
be liable for nonfeasance and well as misfeasance in certain situations.
2. Misfeasance: Breach of duty through an action (positive act), duty is to abstain from hurting other
persons
3. Nonfeasance: Breach of duty through a failure to act
17
 a. liability may be imposed on the defendant for his failure to act because he is under some
affirmative duty to aid, assist, or protect the plaintiff from harms the defendant did not cause or
bring about.
4. Categories: Four main types of categories of affirmative duties:
a. Duty to Rescue
b. Duties of Owners & Occupiers
c. Gratuitous Undertakings and
d. Duties owed to third persons
E. General Rule: NO Duty to Rescue
1. General Rule: § 37 No Duty of Care with Respect to Risks Not Created by Actor: An actor whose
conduct has not created a risk of physical or emotional harm to another has no duty of care to the other
unless a court determines that one of the affirmative duties are applicable.
a. Good Samaritan Doctrine: where the defendant was not responsible for the plaintiff’s
predicament and no special relationship existed between them then the defendant is under no duty
to aid the plaintiff.
i. Yania v. Bigan: D told P to jump into a cut, P did and he drown. Brought suit for failure of D
to jump in and save P. Court said that D had no duty to do so.
b. Duty to Rescue Trespassers
i. Buch v. Amory Manufacturing: P (8yo boy), trespassed at Ds Mill, D told P to leave, P did
not leave, P got his hand crushed in a machine.
 Rule: An owner of land owes a trespasser a duty to abstain from any other or further
intentional or negligent acts of personal violence. Owners are not bound to warn
trespassers of hidden or secret dangers
c. Doctor/patient relationship: Many jurisdictions have adopted statutes absolving
physicians/health professionals from liability for rendering emergency care unless they are grossly
or willfully and wantonly negligent
i. Hurley v. Eddingfield: D was very ill, sent for P (his family doctor) to come to his aid, D
refused to do so for no reason.
ii. Rule: Licensed doctors are not obligated to accept all patients who are in dire need of
medical attention. There is no affirmative duty to be a good citizen and help others in peril
if you have not caused their predicament.
Special Relationships (Exceptions to the No Duty Rule)
F. Duty to Rescue
1. Defendant Created Danger
a. Duty Based on Prior Conduct Creating a Risk of Physical Harm: When an actor's prior conduct,
even though not tortious, creates a continuing risk of physical harm of a type characteristic of the
conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm
b. Montgomery v. National Convoy & Trucking Co.: Ds truck had stalled at the bottom of an icy
hill, D had ample time to warn others of danger, failed to do so. P came down the hill, couldn’t not
stop in time, crashed into D.
i. Rule: One may be negligent by acts of omission as well as of commission, and liability will
therefore attach if the act or omission to act owed to another is the direct, proximate and
efficient cause of injury.
2. Preventing Aid
a. § 327 Negligently Preventing Assistance: One who knows or has reason to know that a third
person is giving or is ready to give to another aid necessary to prevent physical harm to him, and
18
 negligently prevents or disables the third person from giving such aid, is subject to liability for
physical harm caused to the other by the absence of the aid which he has prevented the third
person from giving
b. Louisville & Nashville R.R. v. Scruggs: Ps house was on fire and fire trucks were attempting to
get to it, Ds RR had stopped on tracks leading to Ps house and the workers were beings stubborn
and wouldn’t move the train. D did not have a duty to move their train even though Ps house was
burning
i. Everyone has the right to the natural use and enjoyment of his own property, and if while in
that lawful use, an unavoidable loss occurred to the adjoining landowner without negligence,
no damage could have been awarded.
c. Soldano v. O’Daniels: P(decedent) was in imminent danger of being shot, P asked D to use the
bar’s phone to make an emergency call, D would not let him and P died. D did not have to make
the call himself but he was not allowed to negligently prevent him from placing the call himself.
3. Once you have a duty you have to follow through with it

G. Gratuitous Undertakings
1. Situations where an actor had no duty to do something then incurred a duty by undertaking (rendering
assistance) and may be subject to liable if they do it negligently
2. Duty of One Who Takes Charge of Another Who is Helpless (§324):
a. One who, being under no duty to do so, takes charge of another who is helpless adequately to aid
or protect himself is subject to liability to the other for any bodily harm caused to him by:
i. (a) the failure of the actor to exercise reasonable care to secure the safety of the other while
within the actor's charge, or
ii. (b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a
worse position than when the actor took charge of him
b. Zelenko v. Gimbel Bros: P became ill in Ds store, D did not have any duty to P at first. D took P in
but left him by himself instead of getting him medical care (they made his position worse by
segregating him from others that might help him), by segregating him they took the opportunity
away from others to help him
3. Duty Based on Undertaking:

19
 a. An actor who undertakes to render services to another and who knows or should know that the
services will reduce the risk of physical harm to the other has a duty of reasonable care to the
other in conducting the undertaking if:
i. (a) the failure to exercise such care increases the risk of harm beyond that which existed
without the undertaking, or
ii. (b) the person to whom the services are rendered or another relies on the actor's exercising
reasonable care in the undertaking
b. Marsalis v. LaSalle: P was bitten by Ds cat, P told D to keep the cat under watch so they could see
if it had rabies, D said that they would. D did not take reasonable care to do so, cat got out. P went
ahead and got the rabies treatment, P was allergic to the treatment and had a bad reaction.
i. Rule: One who voluntarily takes upon oneself a duty is under a legal obligation to use
reasonable in carrying out that duty.
4. Majority View: when the defendant makes a gratuitous promise and then enters upon its performance
in any manner has a duty to exercise reasonable care.
a. 1. Any man that undertakes a duty and is negligent, is liable for the goods that are lost or damaged
while under his care
b. 2. Failure to exercise reasonable care is misfeasance and is a sufficient basis for tort liability.
c. Coggs v. Bernard: D moved brandy owned by P, Through Ds negligence some was a lot of brandy
was lost.
i. Rule: If someone voluntarily takes an obligation on themselves, they are liable for any
damage caused by their negligence.
5. Minority View: if one gratuitously undertakes a duty, and the defendant fails to perform that duty
where he knew or should have known that the plaintiff was refraining from obtaining other necessary
assistance in reliance on the duty the defendant can be liable (Reliance on the promise or duty is the
difference between the majority and minority view)
a. Erie R.R. Co v. Stewart: D had a custom of stationing a watchman to warn traffic of oncoming
trains, one day Ds watchman was not there, P crossed the tracks and was struck by a train.
i. Rule: Once an agency establishes for its self a standard of care that lead others into reliance
upon it, the agency is not permitted to say that they have no duty to those people in reliance.
H. Duty Owed to Third Persons
1. Generally: There is no duty so to control the conduct of a third person as to prevent him from causing
physical harm to another unless (§315)
a. (a) a special relation exists between the actor and the third person which imposes a duty upon
the actor to control the third person's conduct, or
b. (b) a special relation exists between the actor and the other which gives to the other a right to
protection.
2. Landlords/Tenants
a. Kline v. 1500 MA Ave.: P sustained injuries when she was criminally assaulted and robbed by an
intruder in the apartment’s common hallway, P had warned her landlord several times and there
were other instances of this.
i. Rule: Landlords have a duty to take steps to protect tenants from foreseeable criminal acts
committed by third parties in common areas of landlord’s property, Limited to foreseeable
criminal acts in common areas
ii. The relationship depends on the foreseeability of harm, issue for the court to decide
3. Store/Customer

20
 a. Posecai v. Walmart: P went to Ds store, when she came back to her car she was robbed at gun
point, not a high frequency of crime in this area. Applying a balancing test to the facts, with the
foreseeability and gravity of harm on Ds property was slight, therefore D owed no duty to protect
P from the criminal acts of third parties under the facts and circumstances of this case.
i. Rule - Balancing Test: seeks to address the interests of both business proprietors and their
customers by balancing the foreseeability of harm against the burden of imposing a duty to
protect against the criminal acts of third persons
 Greater the foreseeability and gravity of the harm = greater the duty of care (vice versa)
 Factors: The most important factor to be considered is the existence, frequency and
similarity of prior incidents of crime on the premises, but the location, nature and
condition of the property should also be taken into account
 *Court adopts this test*
4. § 41 Duty to Third Parties Based on Special Relationship with Person Posing Risks
a. (a) An actor in a special relationship with another owes a duty of reasonable care to third parties
with regard to risks posed by the other that arise within the scope of the relationship.
b. (b) Special relationships giving rise to the duty provided in Subsection (a) include:
i. (1) a parent with dependent children,
ii. (2) a custodian with those in its custody,
iii. (3) an employer with employees when the employment facilitates the employee's causing
harm to third parties, and
iv. (4) a mental-health professional with patients.
c. Tarsoff v. Regents: Patient tells psychologist that he wants to kill P’s daughter. Psychologist
reports incident to medical group, but does nothing else. Patient kills P’s daughter and P brings
wrongful death claim against University. Held, a therapist (or other individual) who has
determined, or under applicable professional standards reasonably should have determined, that a
patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to
protect the foreseeable victim of danger.
i. RULE: Psychotherapists have a duty to warn the SPECIFIC/foreseeable victim if a threat is
made by one of their patients (see Rest.2d §315(a))
ii. Public policy issue: Doctors must balance the Doctor/patient privilege of confidentiality with
the public policy of ensuring safety for members of societ - Dissent in Tarasoff
I. Duties of Owners & Occupiers
1. Three Categories of Occupiers on Owner’s Land (determined by judge)
a. Invitee: someone who is on the land of the owner for some joint purpose
i. Public Invitee - a person who is invited to enter or remain on land as a member of the public
for a purpose for which the land is held open to the public.
 Ex. Someone at a public park
ii. Business Visitor - a person who is invited to enter or remain on land for a purpose directly or
indirectly connected with business dealings with the possessor of the land.
iii. Duty: (Traditionally) - 1. There is a duty to use reasonable care to inspect the land for
dangerous conditions. 2. There is a duty to (a) use reasonable care not to injure the invitee by
negligent activities, and (b) to warn the invitee of hidden dangerous conditions of which
the owner knows or reasonably should know. 3. If a warning of an unreasonably dangerous
condition will not suffice to protect the invitee, the owner may be required to take further
precautions, including remedying the condition
iv. Ex. meter readers, trash collectors, letter carriers, sanitary and building inspectors. (
21
 b. Licensee: One who enters or remains on the land of another with the consent (“leave or license”),
express or implied, of the owner or under a legal privilege.
i. Duty: (traditionally) the landowner has no duty to ensure that the premises are safe, but he
does have a duty not to create a trap or allow a concealed danger to exist on the premises,
which is not apparent to the visitor, but which is known, or ought to be known by the
occupier.
ii. License can be implied by:
 (1) where the owner sees someone come on the land, whether for the first time or not,
and despite opposing that person's presence, does or says nothing to indicate that
opposition. Silence may imply consent when it “would be understood by a reasonable
person as intended to indicate consent and it is so understood by the other.” (Rest. 2d
§892, Comm. c)
 (2) where the owner virtually ignores the presence of habitual (frequent) intruders of
whom he has knowledge
iii. Social guests, fire fighters & police (they are looking after the premise, there cannot be
preparation for their visit)
c. Trespasser: One who enters or remains on the land of another without the consent, express or
implied, of the owner or without other privilege to do so.
i. Duty: (YES THERE IS A DUTY) - There is a duty not to injure trespassers intentionally or
recklessly. Duty to refrain from wanton and willful misconduct.
2. Three Different Approaches that Courts have taken:
a. Classical Approach: some jurisdictions follow the traditional tripartite system which classifies
the duties of the landowners with respect to whether the guest was an invitee, licensee, or a
trespasser.
b. Modern Approach: Some jurisdictions make no distinction between the three categories and apply
a rule of reasonable care under the circumstances to anyone on the landowner’s property.
c. Modified Modern Approach: some jurisdictions continue to treat trespassers as a distinct group but
apply the rule of reasonable care under the circumstances to all other people who come onto
the landowner’s property.
3. Traditional Tripartite Scheme
a. Trespasser: One who enters or remains on the land of another without the consent, express or
implied, of the owner or without other privilege to do so.
b. Licensee: One who enters or remains on the land of another with the consent (“leave or license”),
express or implied, of the owner or under a legal privilege
c. Addie v. Dumbreck: Ds (coal miners) operated a haulage system, used a cable to operate, the cable
passed through a large wheel that was not visible and poorly protected. System was surrounded by
a hedge, but there was gaps in it and people used it as a short cut. Workers warned children and
adults but knew the warnings had little effect, they also had a no trespasser sign. P’s son (4 y.o)
was sitting on the wheel when it started moving, got caught and died.
i. Rule: Landowners are only liable to trespassers if they act willfully or wantonly of reasonable
care and inflict harm on the trespasser.
ii. A trespasser could turn into a licensee if the owner warns the trespasser once to stay off and
then discontinues his warnings, this could create an implied licensee meaning the owner
would have to warn the person of the known dangers, the owner must keep protesting.
d. Test for Determining Invitee or Licensee
i. Depends on the nature of the visit
22
e. Exceptions
i. Known (discovered trespassers): When the presence of the trespasser has actually been
discovered by the owner, a duty arises (a) not to injure the trespasser by one’s negligent acts,
and (b) to warn the trespasser of non-obvious artificial, highly dangerous conditions.
 Active operations - highly dangerous conditions
 § 338 Controllable Forces Dangerous to Known Trespassers: A possessor of land who
is in immediate control of a force, and knows or has reason to know of the presence of
trespassers in dangerous proximity to it, is subject to liability for physical harm thereby
caused to them by his failure to exercise reasonable care
1.(a) so to control the force as to prevent it from doing harm to them, or
2.(b) to give a warning which is reasonably adequate to enable them to protect
themselves
ii. Frequent trespassers: (constant trespasser): Where the owner knows that trespassers
frequently (or constantly or habitually) come on the land in large numbers, entering it at a
particular point and crossing a limited area, the same duties as in para. 3 above arise.
 If RR workers cross the same area every day, the RR would have the duty to take
reasonable care by avoiding harm with an active action
 Duty owed these trespassers is the same as owed to licensees, conduct duty and warn of
concealed conditions
 Excelisor Wire Rope Co. v. Callan: where Ds workers knew that their dangerous work
area was always “swarming” with children from an adjacent park, they have a duty to
check the machines to make sure the kids are not in harms way bc it happens so
frequently
 Duty is one of reasonable care only, usually a warning is enough of the dangerous care
f. Attractive Nuisance
i. the attractive nuisance doctrine allows infant trespassers to recover when lured onto the
defendant’s premises by some attractive condition created and maintained by the defendant,
such as railway turntables, explosives, electrical conduits, smoldering fires, rickety structures,
and the like.
ii. Caveat: exposure to liability under the doctrine, however, is not unlimited, case law has not
extended it to cover rivers, creeks, ponds, wagons, axes, woodpiles, haystacks, and the like.
iii. § 339 Artificial Conditions Highly Dangerous to Trespassing Children: A possessor of land is
subject to liability for physical harm to children trespassing thereon caused by an artificial
condition upon the land if:
 (a) the place where the condition exists is one upon which the possessor knows or has
reason to know (having info. That a person of ordinary intelligence could gather that
this fact exists) that children are likely to trespass, and (no duty to investigate)
 (b) the condition is one of which the possessor knows or has reason to know and which
he realizes or should realize will involve an unreasonable risk of death or serious
bodily harm to such children, and
 (c) the children because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous by it,
and

23
  (d) the utility to the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children involved, and
(hand formula)
 (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise
to protect the children.
4. Modern Approach (Abolition of Categories)
a. Rowland v. Christian: D invited P to her house as a social guest, while P was using the bathroom,
the handle on the water faucet broke and severed the nerves and tendons of his right hand. D knew
of the crack, had asked her landlord to repair it but did not warn P of the crack. The court takes
away that status having a bearing on the duty, just says that reasonable care is owed to everyone
that comes on the land
i. Favors a single standard of reasonable care owed to all entrants on the land of the owner or
occupier.
ii. The proper test to be applied to the liability of the possessor of land is whether in the
management of his property he has acted as a reasonable man in view of the probability
of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may
in the light of the facts giving rise to such status have some bearing on the question of
liability, the status is not determinative.
iii. Factors used to determine if a duty of care is owed:
 foreseeability of harm to the plaintiff,
 the degree of certainty that the plaintiff suffered injury,
 the closeness of the connection between the defendant's conduct and the injury
suffered,
 the moral blame attached to the defendant's conduct,
 the policy of preventing future harm,
 the extent of the burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability
for breach, and the availability, cost, and prevalence of insurance for the risk involved

24
BREACH OF DUTY
A. Breach is conduct that falls below the standard of care – conduct that does not conform to the standard of
care goes under breach
B. Standard of Care: The Reasonable Prudent Person – determined by the trier of fact (jury)
1. Objective standard: A hypothetical construct of an idealized standard of care that all people should have
in similar situations. This RPP has the following characteristics, measured by an objective standard:
a. Physical characteristics: the RPP is considered to have the same physical characteristics as the D.
However, a person is expected to know their physical handicaps & is under a duty to exercise the
care of a person with such knowledge.
 Roberts v. Ring: An elderly man with bad sight & hearing is driving his care cautiously
through the streets and hits a kid that runs out in front of his car. D uses his infirmities
25
 as a defense at the trial level but the appellate court says it is those infirmities that made
him even more liable bc he should not have been driving.
1.Rule: a defendant’s infirmities do not tend to relieve him of a negligence
charge—if anything, they should weigh against him.
 Third Restatement: “the conduct of an actor with a [significant and objectively
verifiable] physical disability is negligent only if the conduct does not conform to that
of a reasonable careful person with the same disability.”.
ii. Average Mental Ability: D must act a s would a person with average mental ability.
Individual mental handicaps are no considered.
 Low IQ is no defense
1.Vaughan v. Menlove: P & D were neighbors, D had a pile of hay on his property
next to Ps cottage. D was warned that it was not safe to leave the hay. D did not
move it & it caught on fire and destroyed Ps property. D basically said he acted in
good faith but was too stupid to understand the risk, court said that did not matter
a. Rule: The standard for negligence is an objective one. One has
behaved negligently if he has acted in a way contrary to how a
reasonably prudent person would have acted under similar
circumstances.
 Insanity is no defense & the D is held to the same standard -
 Breunig v. American Family Insurance Co: P & D were driving on the same road in
opposite directions, D succumbed to mental delusions (batman) and swerved across the
lane and hit Ps car. P gave evidence that D had forewarning of this, so it went to jury
and they found for P. If there was no evidence of forewarning, the case might have
gone for the D. This gave a very limited exception to the general rule that insanity is
not a defense
1.Rule: Some forms of insanity are a defense to negligence, namely a sudden
delusion caused by mental illness that overcomes a driver’s ability to operate her
vehicle in an ordinarily prudent manner and where the driver lacks knowledge
or forewarning of her mental delusions or disability
2.General Rule: insanity is not a defense to a tort claim, where the party is
permanently insane (except in defamation)
 Plaintiff’s Mental Insanity: Courts are split on whether mental deficiency including
insanity can be taken into account when considering Ps contributory negligence.
 Gould v. American Family Insurance: D was an elderly man with Alzheimer’s disease
who lived in a mental health facility, he injured a worker. Court held that a mentally
disabled institutionalized person could not be liable for negligence, as a matter of law,
when the P was a paid caretaker of the institution. Holding a patient liable would place
too big a burden on him since he is already institutionalized
 Note that disallowing mental illness or deficiency as a defense helps to promote
compensation to injured victims; allowing these to be taken into account on the issue of
a plaintiff’s negligence helps to promote compensation to the injured plaintiff.
iii. Same Knowledge as Average Member of Community: The reasonable person is assumed
to possess: (a) normal intelligence, and (b) normal perception, memory, and at least a
minimum standard knowledge of common dangers (e.g., gravity causes objects to fall; fire
burns; water drowns; snarling dogs may bite; bulls may gore).
Particular Standards of Conduct (D most conform their conduct to that of a RPP with their
knowledge/ability/etc) –
iv. Professionals:

26
  Those who have great skill, training or knowledge are expected to exercise that
standard of care. i.e. a higher one.
 Rst. §299
v. Experts & Beginners:
 Experts – those with superior knowledge or skill are expected to conform to a standard
of care of someone with those superior attributes
 Beginners - The standard of reasonable care is not lowered for beginners, but those with
superior knowledge or skill are expected to conform to a standard of care of someone
with those superior attributes. This puts pressure on them to conform to the standard of
care and if they were not held to the same standard then it may endanger the public
1.exception: P has assumed that the D will exercise a lower standard of care, as
happens when an experienced driver agrees to teach a noise how to drive.
vi. Age:
 Roberts v. Ring: Summary above, here focused on the age of the P and the age of the
D. P was of old age and was found negligent, D was 7 years old and therefore is not
held to the standard of a RPP so he was not contributorily negligent/
1.Rule: A child should not be held to the same standard of care for self-protection
as an adult. However, a child who causes injury to another cannot take advantage
of his age or infirmities.
 RST. 3d. does not take this into account
 Daniels v. Evans: P (19 y.o) was killed when his motorcycle collided with D’s car.
Held that a minor should be held to the same standard of care as an adult when doing an
adult activity, such as driving. It would be unfair to the public to permit a minor in the
operation of a MV to observe any other standards of care and conduct than those
expected of all others.
1.Rule: Adult Activity - When a minor assumes responsibility for the operation of a
potentially dangerous instrument as an automobile, he should … assume
responsibility for its careful and safe operation in the light of adult standards
 Child Standard of Care: Jury may still find the child negligent, the standard of care is
just brought down to the care of a child that age.
1.Some courts use the “rule of sevens” – children > 7 are incapable of negligence,
children from 7-14 are presumed incapable but can be rebutted by evidence of
child’s capacity & children <14 are capable of negligence
vii. Intoxication: Intoxication does not vary the standard of reasonable care; an intoxicated person
is held to the standard of care of a reasonable sober person. Evidence of intoxication may be
admitted, however, to show why an actor needed to take additional care in the circumstances
or did not take reasonable care.
viii. Wealth: The standard of reasonable care is not varied to take account of an actor's wealth,
i.e., his or her financial ability to conform to the required standard
 Denver & Rio Grande R.R. v. Peterson: standard of care required of workers is the
same despite their level of income
ix. Heightened duty of care: heightened care should be given with disabled pedestrians and
children
 Fletcher v. City of Aberdeen: P, a blind man was cautiously feeling his way down a
sidewalk when he fell into a hole made by the cities workers that did not have a barrier.
 Rule: The P’ standard of care was of that reasonable prudent person in the position of
the P as a blind man. The city’s standard of care that would notify the person so

27
 afflicted of the danger. (city has a heightened duty of care to anticipate the use of its
streets by disabled pedestrians)
x. Sudden emergency rule:
 Lyons v. Midnight Sun Trans. Servs. Inc.: Decedent pulled out in front of Ds semi-
truck, D tried to avoid her but ended up hitting and killing her. Court applied the
sudden emergency doctrine (what a RPP would do in an emergency situation). Court
held this rule was redundant and may confuse the jury, either way the standard is that of
a RPP in similar circumstance.
 Sudden Emergency: It is a situation in which an actor must make a virtually
instantaneous decision on how to avoid a peril. The Restatement (Third) defines it as
“an event that requires a decision within an extremely short duration.” (§9, comment b)
xi. Holmes: Says to either have the standard of care be completely subjective or never take into
account any other characteristics.

C. Calculus of Risk Standard of care for determining negligence

a. Elements of calculation of risk: (1) foreseeability (2) an unreasonable risk of harm
1. WAS THERE A FORESEEABLE RISK?: (there’s always a foreseeable risk – use the facts)

28
 a. Blyth v. Birmingham: D was a company in charge of the water mains & fire plugs, there was a
very bad frost storm, water got into Ps house bc visible frost on the fire hydrant clogged the
water from getting out the correct way. Court found that D was not liable for not taking enough
precautions against an unforeseeable ice storm.
i. Rule: One cannot be held liable for failing to guard against a risk of harm that is not
expected or so unforeseeable
b. Stone v. Bolton: P lived across the street from a cricket range, P was hit with a cricket ball,
which rarely ever made its way that far. P claimed that D should have moved the pitch farther
& made the fence higher. Court uses foreseeability test. Holds no matter how rare the even, if it
happened before it is foreseeable it will happen again. (appealed below)
i. Rule: D is liable for damages because they were reasonable foreseeable
c. Gulf Refining Co. v. Williams (hypo based on this from the notes): D sold P a gas drum with
worn out threads on the cap, P tried to open the cap and it started a fire. D knew that the
threads were worn. Rule: Foreseeability of a harm is the existence of such a likelihood of
damage so as to induce action to take care against it on the part of a reasonably prudent person.
2. WAS THE RISK UNREASONABLE?
a. Balancing test: cost-benefit analysis — used to determine unreasonable risk of harm
b. Unreasonable risk of harm: Generally, a P must show that D’s conduct imposed an
unreasonable risk of harm on P (or on a class of persons to whom P is a member)
c. Learned Hand’s Balancing Test: if the Probability that the risk occurs multiplied by the
Gravity of the loss -
i. Is MORE than the Burden of precautions against such a risk then D is negligent
ii. Is LESS than the Burden of precautions against such a risk then D is not negligent
iii. United States v. Carroll Towing Co: Ps employees were tasked with watching a barge
but went ashore instead, Ds employees were attempting to get another barge out of the
same harbor, they ended up knocking loose Ps barge which got sent down the river and
hit another boat and sank. D brought defense of contributory negligence
1. Rule: The hand formula - Probability (med) x gravity (high) > burden (low –
should have been on the boat during working hours & busy time.
iv. Bolton v. Stone: An appeal from the lower court case stated above, test to be applied
here is whether the risk of damage to a person was so small that a reasonable man in the
position of the appellants (considering the matter from a point of safety) would have
thought it right to refrain from taking steps to prevent the danger. Court comes back
and says that this is too rare a thing for anyone to guard against, balancing the factors.
v. Osborne v. Montgomery: Balancing interest where the value of an actors conduct can
be weighed with societal conduct. Social utility - the utility of an act may out weight
the risks (E.g. a fire truck driving at a high rate of speed to get to a dangerous fire)
d. Exceptions to reasonable care in negligence
i. Saving a human life:
 Eckert v. Long Island R.R: Decedent attempted to save a kid from being run over by
D’s train. Ds argue that P was negligent for running in front of the train so it is his
fault. Ps say that D was moving too fast in a busy location. However, court does not
find the decedent negligent bc there was a duty of care owed from him to the child
to try to save him bc of societal norms.
1. Rule: limit on the "reasonably foreseeable" context in favor of the plaintiff,
law inherently values human life so gives some exception to those acting
"within the reasonable rescuer" role where they have little time to react in
order to attempt a lifesaving action. However, reasonable actions must still
come into play; the rescuer does not get a free pass on negligence

29
 ii. When preventative measure exposes public to even greater risk:
 Cooley v. Public Service Co.: D (power company)’s, wires crossed with telephone
wires while P was on the phone, during a bad storm and the phone blew up. P said
that D could have created a basket to catch the wire which would have prevented
the damage. However, if D did that they would be creating an even bigger risk.
1. Rule: When an actor's conduct necessarily creates a risk of harm to two
different persons, or classes of persons, both of which cannot be eliminated by
the actor's use of reasonable care, the actor will not be negligent [breach of
duty] for failing to prevent the lesser of the two risks
C. Custom: as EVIDENCE for standard of care
1. Custom: regular usage or way of doing specific things, a practice of some sort, way of doing certain
things, must be widespread, does not need to be unanimous, may be introduced to establish evidence
of a standard of care, this is not conclusive.
2. Evidentiary weight of custom: custom is used as evidence that the defendant is negligent when the
defendant does not comply with custom; custom is used as evidence that D was not negligent when
D complies with custom.
3. The TJ Hooper: D lost two barges & Ps cargo of coal in a bad storm. The captains did not know
there was a storm coming bc the barges were not equipped with radios. Ps tried to establish that it
was custom for tug owners to supply radios. TC said there was a custom, on appeal the court said
that there was not a custom but , “there are precautions so imperative that even their universal
disregard will not excuse their omission”. So D was still found liable.
a. Rule: If the utility of a safety precaution outweighs the cost of the precaution, then it is
negligent not to carry the safety precaution. An industry’s general custom does not dictate the
standard of care; the courts decide what is required of the parties.
4. Custom in medical malpractice: Custom and Causation
a. First element: Determining the standard of care
i. Lama v. Borras: D scheduled P for surgery, neglecting to offer any conservative
treatment for Ps back pain, after surgery Ps pain returned, another operation, no anti-
biotics were given and then P developed discitis. Standard of care given by expert
testimony.
ii. Rule – Setting the standard in medical cases: To establish a prima facie case of
medical malpractice, P must demonstrate: the basic norms of knowledge and medical
care applicable to general practitioners or specialists, proof that and the medical
personnel failed to follow these basic norms in the treatment of the patient and a causal
relation between the act or omission of the physician and the injury suffered by the
patient
 Cost-benefit analysis in medical malpractice: CBA is not relied on in medical
malpractice cases bc judges & juries do not have the expertise needed to judge in
the medical field
 Two school conflict: The two schools problem occurs when it is determined that the
prescribed treatment or procedure has been approved by one group of medical
experts even though an alternate school of thought recommends another approach.
IF there are two acceptable customs, the jury does not decide which is better — this
decision is left to the medical community and it considered to be an issue of law.
 Locality rule: “jack-of-all-trades general practitioners are protected in performing
difficult surgeries in a small country village”. Those in same towns would not have
the same in terms of education/practice as those in larger cities. Not really relevant
anymore bc of technology

30
 iii. Helling v. Carey: Ps eye was permanently damaged bc D failed to diagnose her
glaucoma. Experts for both parties agreed that standards did not require an exam for
patients below 40 (which she was).
 Rule: rejection of custom, Professionals whose actions conform to the standards of
their given specialty may, nevertheless, commit malpractice if such conduct is not
reasonably prudent.
iv. Causation: the issue of causation in medical malpractice cases is whether the injury
sustained by the plaintiff was caused by the physician’s conduct: causation must be
proven in order to find the physician negligent for medical malpractice.
b. Second element: Causal relationship between injury and physician’s act:
i. Causation is an issue for the jury because the issue of causation involves inherent
uncertainties, unlike the determination of custom in the standard of care.
5. Informed Consent: (1) Non-disclosure of risk; (2) Injury; (3) Causal Relationship between (1)
& (2).
a. Non-disclosure of risk:
b. General rule: A doctor proposing a course of treatment or a surgical procedure has a duty to
provide the patient with enough information about its risks to enable the patient to make an
informed consent to the treatment. If an undisclosed risk was serious enough that a reasonable
person in the patient’s position would have withheld consent to the treatment, the doctor has
breached this duty.
i. What makes a risk reasonable/material? a risk is thus material when a reasonable
person, in knowing what the physician knowns or should know to be the patient’s
position, would be likely to attach significance to the risk or cluster of risk in deciding
whether or not to forego the propose therapy.
ii. What must be disclosed:
 1. What is the nature of the treatment?
 2. What is the risk of the treatment?
 3. What are the feasible alternatives?
 4. What are the consequences of non-treatment?
iii. Exceptions to the general rule:
 (1) when patient is unconscious and incapable of consenting, and harm from a
failure to treat is imminent and outweighs any harm threatened by the proposed
treatment.
 (2) risk-disclosure poses such a threat of detriment (i.e severe emotional harm) to
the patient as to become unfeasible from a medical point of view.
c. Canterbury v. Spence: D failed to tell P about the risk of paralysis associated with his surgery,
P fell out of bed after surgery & became paralyzed. D was negligent in failing to tell P of the
minimal risk.
i. Rule: It was a matter of the physician’s duty to disclose all information regarding the
surgery, including the minimal risks, so that the patient could make an informed
decision.
ii. There must be nondisclosure, there must be physical harm from the risks that patients
was not informed it and there must be cause in fact that the patient would not have gone
through the with surgery if they had known the facts or a RPP.
6. Injury

31
 a. Type of injury: the type of injury complained of needs to be the result of a risk that the doctor
failed to disclose. If you do not suffer the harm that you were not warned about there is no
recovery.
7. Causal relationship between a physician’s duty to disclose & the resulting injury
a. Existence of a causal relationship: A causal connection exists when, but only when, disclosure
of significant risks incidental to treatment would have resulted in a decision against it.
i. Objective test: “in terms of what a RPP in the patient’s position would have decided if
suitably informed of all perils bearing significance”
D. Statutes as the Standard of Care
1. Private rights of action based on negligence (1) violation of a statute (2) issue of causation
2. Overview
a. Adoption of a statute may set the standard of reasonable care
b. Rationale:
i. All members of society have a duty to obey laws and regulations
ii. Laws and regulations were enacted to protect particular interests or classes or
people. When a person violates a criminal statute or an administrative regulation, then
they are acting in a way that disregards those protections.
iii. Respect for legislature, practicality (i.e legislature is more effective in establishing
consistent rules), public relies on statutory commands being observed.
c. Negligence cases can be brought under statutes in two ways:
i. 1. Statutes that expressly give a private cause of action by violation of the statute
ii. 2. Court adopts the standard of safety set by a statute (negligence per se)
d. When standard of conduct defined by legislation will be adopted: The court may adopt, as
the standard of conduct of a reasonable man, the requirements of a legislative enactment whose
purpose is to protect: (§286)
i. a class of persons which includes the one whose interest is invaded, and
 P must be a member of the class of persons whom the statute was designed to
protect.
 Ex. A statute that says its purpose is to “protect every working man” from failing
down an elevator shaft. If a pizza man fails down the elevator shaft while on the
job, he is in that class. However, if a sales man falls down the shaft while he goes to
visits his wife on a pleasantry visit, he is not covered
ii. the particular interest which is invaded, and
iii. that interest against the kind of harm which has resulted, and
 the statute must have intended to protect against the particular kind of harm that P
wishes to recover for.
 Gorris v. Scott: D fails to pen up Ps sheep on a boat, as a result of that the sheep fall
off the boat. There is a statute that says sheep are supposed to be penned up but the
purpose of that is to protect against disease not the sheep falling off the boat.
iv. that interest against the particular hazard from which the harm results
e. Party Seeking to Employ a Statutory Violation Must Prove:
i. that she was in the class the statute was intended to protect, (court decides)
ii. suffered the type of harm the statute was intended to prevent, and (court decides)
iii. that the violation caused the injury. (Jury Issue)
f. Dual Purpose/multipurpose:

32
 i. A statute may protect against more than one class of injuries or class of injured
persons
 Stimpson v. Wellington Service Corp.,: D drove a 137ton rig without a permit
(permit intended to protect road-ways from heavy trucks); the rig damaged a
building; court held the stat-ute had a dual purpose: The primary purpose of the
statute was to pro-tect the ways themselves from injury from overloaded vehicles
AND protect against injury to property.
g. Violation of Licensing Statutes
i. the lack of a required license is neither negligence per se, nor evidence of negligence,
unless the evidence indicates that the defendant has also violated the “substantive safety
measures enforced by the licensing requirement”, that they did not use the same degree
of skill as a licensed person would have
ii. Brown v. Shyne: D chiropractor had not obtained a medical license, P claimed to be
hurt by D’s treatments. Court held that the licensing statute could not be used to prove
negligence, because acquiring or failing to acquire a license was irrelevant to the
question whether the practitioner possessed and used the requisite degree of skill and
learning. Statute was designed to protect against unskilled doctors. P would have to
prove that D had no acted with adequate skill.
iii. Caveat: if a person operates a vehicle in a way that suggests a lack of skill, and the
person does not have a license because he or she failed a test that assesses skill, then the
lack of the license may be negligence per se or evidence of negligence, depending on
the jurisdiction's rules
h. Issues of Proximate Cause (P’s injury cause both by D’s violation & 3rd party) Looks at the
three factor test to decide -
i. Vesely v. Sager: (Dram Shop Statutes) D served a guest alcohol at a bar, the guest
drove drunk and injured P. Held that P could recover bc D was a substantial factor in
causing the injury, D is not relieved bc of the acts of a third party if such as was
reasonably foreseeable. [do not use substantial factor on the test]
ii. Coulter v. Superior Court: D served alcohol to a guest at house party, that guest injured
P, who D knew was intoxicated and intended to drive.
iii. Ross v. Hartman: D left the keys in his car with his car running, a thief stole the car and
injured P. Statute said you cannot leave your car running. D held liable, acts of thief
were not superseding
iv. If a case passes the three factor test, the court still has the ability to determine the intent
of the legislature, so passing the test is not always negligence per se
3. Majority View - Statutory Violation as Negligence Per Se
a. the violation of a relevant statute, whether by defendant or plaintiff, is "negligence per se"--
negligence as a matter of law
b. Negligence per se: (as a matter of law) An act is considered negligent simply because it
violates the statute. A factual conclusion (there was negligence) that the law requires the trier
of fact to draw and which may not be rebutted by general evidence of reasonable care
(“conclusive evidence” of negligence)
i. Rest. §14 Statutory violations are negligence per se: An actor is negligent if, without
excuse, the actor violates a statute that is designed to protect against the type of
accident the actor's conduct causes, and if the accident victim is within the class of
persons the statute is designed to protect.
33
 ii. Subsequently enacted statutes CANNOT be used for negligence per se, but they can
be submitted as evidence in the negligence determination
c. Caveat: Some jurisdictions that treat violations of statutes (i.e., laws passed by state
legislatures) as negligence per se treat violations of administrative regulations or local
ordinances as merely some evidence (an inference) of negligence, which the jury may accept
or reject.
d. Martin v. Herzog: D was driving with their lights off, got into an accident with P and killed
them. Statute said you had to drive with your lights on. However, it was not deemed negligence
itself bc A D who travels w/o lights on is not liable unless the absence of lights is the cause of
the damage. A P who does that does not forfeit their rights to damages unless it is at least a
contributing factor.
e. A violation of a statute is excused when:
i. The violation is reasonable because of the actor’s incapacity
ii. The actor neither knows or should know of the occasion for compliance
iii. Actor is unable after reasonable after reasonable diligence or care to comply
iv. Actor is confronted by an emergency not due to his own misconduct;
v. Compliance would involve a greater risk of harm to the actor or to other
4. Minority View – Statutory Violation as Prima Facie Negligence
a. courts treat the violation as creating only a presumption of negligence (prima facie negligence)
or merely an inference of negligence (some evidence of negligence).
b. Osborne v. McMasters: P bought medicine from D that was actually poison and was not
properly labeled. There was a statute that said you had to properly label poisons.
i. Rule: Where a statue imposes upon any person a specific duty for the protection or
benefit of others, if he neglects to perform that duty, he is liable.
ii. Three (possible) functions of a statute in a torts action:
 (1) it can create a private right of action, indv. Injured by a violation of a statute
can sue the offender,
 (2) in that case the court can adopt negligence per se – the statute becomes the
standard of care so the Ds violation is by definition, negligent,
 (3) even if the Ds action does not constitute negligence per se, P can still argue that
the conduct was negligent. (§14 comm. F)
5. Judge & Jury: Who is negligence an issue for when a statute is involved?
a. Negligence is an issue for the jury when it may be shown that, even though D broke the
law, he did not think dangerous consequences would result.
b. Role of Judge v. jury: Judges control the jury’s discretion by controlling (1) which embody the
relevant principles of law and (2) the courts power to keep certain questions of fact from the
jury. Jury instructions state the relevant principals of law, court decides whether there is
sufficient evidence to make a case out to the jury (on the facts of the case).
i. Judge determines whether the plaintiff falls within the class of persons protected by the
statute and also determines whether the plaintiff’s injury falls within the class of
injuries addressed by the statute.
ii. Jury determines whether there was a duty to use care
iii. Duty is decided by the judge, foreseeability by the jury.
c. Rules made by judges:
i. The breach issue is usually reserved for the jury, but on a motion for a summary
judgment a court may decide the issue by holding that no reasonable jury could find in
34
 favor of the nonmoving party. Each time a court makes a breach decision as a matter of
law, it create a rule regarding what conduct is reasonable or unreasonable in a given set
of facts. Some Courts find this attractive in light of the collective experience the court
gains over many trials regarding norms of conduct.
 Standard application of due care: If the rationale for ruling that particular
behavior was or was not negligent as a matter of law is broadly applicable,
then the decision in effect creates a rule of law about the conduct.
d. Holmes: Juries are often unpredictable, judges are predictable in the way that the decide cases,
they have a lot of experience with similar cases and therefore are able to predict what the
outcome and reaction would be based on the similar facts. Here he is basically saying that they
can decide like cases alike but juries are often unpredictable.
e. Baltimore & Ohio R.R. v. Goodman: P was driving and approached train tracks at low speed,
P did not have a good view of the train and he was struck and killed. J. Holmes said that P was
contributorily negligent for failing to “stop, look and listen”.
i. Rule: The question of due care is generally left to the jury. When the standard is clear,
the court should make the decision. However, “when the standard is clear, the Courts
should lay it down once and for all.”
f. Pokora v. Wabash Ry.: P stopped at RR crossing, tried to stop, look and listen, his view was
blocked by the main track, he went over the track and was hit and killed by D. J. Cardozo
overruled the precedent set in Baltimore. Stating that Getting out of his car to check for a train
may be more dangerous than just going over the track alert and by the time he gets back to the
car, a train could have appeared
i. Rule: To get out of a vehicle is uncommon precaution, as everyday experience informs
us. The actions of a plaintiff depend on the situation and the circumstances, and it is up
to the jury to decide whether a particular course of action was reasonable.
E. Res Ipsa Loquitur
1. Overview – this is a jury instruction
a. Definition: the mere occurrence of an accident implies negligence, “the thing speaks for itself”
b. This is an inference that the duty was breached
c. It is a doctrine of circumstantial evidence that enables plaintiff to prove that defendant was
negligent when plaintiff has no or little direct evidence of such negligence. (can still be used
when there is evidence)
d. When applicable, allows the plaintiff to escape summary judgment and directed verdict and
get her case to the jury.
e. Majority View: allows the plaintiff an inference of negligence that a jury is free to accept or
reject, whether or not defendant offers rebutting evidence.
f. Minority View: affords the plaintiff a presumption of negligence. In these jurisdictions, unless
the defendant comes forward with some rebutting evidence, the jury must find for the
plaintiff.
2. Prosser’s elements: (decided by jury if they are met)
a. The event must be of a kind which ordinarily does not occur in the absence of someone's
negligence
i. proven only if the most probable explanation for the accident is negligence.
b. It must be caused by an agency or instrumentality within the exclusive control of the
defendant

35
 i. Requires plaintiff to prove that the defendant, more probably than not, caused the harm
to the plaintiff
c. It must not have been due to any voluntary action or contribution on the part of the plaintiff.
3. Rest. 2d. Elements:
a. the event is of a kind which ordinarily does not occur in the absence of negligence;
b. other responsible causes, including the conduct of the plaintiff and third persons, are
sufficiently eliminated by the evidence; and
c. the indicated negligence is within the scope of the defendant's duty to the plaintiff.
4. Byrne v. Boadle: P was passing Ds business when a barrel fell out of the window and injured P. The
barrel falling out of the window creates a prima facie case of negligence bc barrels do not fall out of
windows without the negligence of someone.
a. Rule: Establishes a presumption of evidence and it is up for the D to prove that it was not
negligent
5. Exclusive Control Element
a. Function is to ensure that the injury was not caused by the negligent conduct of the plaintiff or
the third party.
b. Larson v. St. Francis Hotel: P was injured when guests in Ds hotel through an armchair out a
window. It is assumed that the armchair came from one of the hotel room windows. RIL did
not apply in this case because “a hotel does not have exclusive control, either actual or
potential, of its furniture. Guests have at least partial control. It also cannot be said that if the
hotel was using ordinary care, the accident was such that would not happen”.
i. Rule: RIL does not apply unless the object that caused the accident is under the
exclusive control of the defendant and under ordinary circumstances using ordinary
care, the accident would not have happened
c. Not to be taken literally: A P can prove D was in exclusive control if there are multiple Ds in a
case by showing that the D with the non-delegable duty to care for the instrumentality has
exclusive control over it (see Colmenares vivas v. Sun Alliance Insurance Co).
d. Colmenares Viva v. Sun Alliance Insurance Co.: P was on an escalator at the airport,
escalator handrail stopped moving and P lost their balance and fell down the stairs. Elements
were met of RIL were met bc handrails don’t just stop moving absent of negligence, D had
exclusive control and there was no evidence that P contributed to their fall. D tried to argue
that their maintenance was responsible but court said no.
i. Rule: The authority in control of a public area has a nondelegable duty to maintain its
facilities in a safe condition.
ii. Dissent said that the court does not have enough expertise to say that a complicated
piece of machinery like an escalator malfunctions bc of negligence.
e. Duty to act element from Rst: “The indicated negligence is within the scope of the D’s
duty to the P”
i. Connolly v. Nicollet Hotel: P was also hit by a chair that came out of a hotel room
window, but the differnce in this case was that the hotel was warned that their guests
were going to be rowdy so they should have taken extra care to make sure that no one
was hurt. Therefore, the hotel did have exclusive control of what was going on.
 Rule: The law does not require every fact and circumstance which make up a case
of negligence to be proved by direct and positive evidence; circumstantial evidence
alone may authorize a finding of negligence.
6. Sinking Boats:
36
 a. Walston v. Lambersten: Ps husband drowned while a following an accident on the sea, P
claimed that D’s construction on the boat caused her husband to drown. Court rejected that
claim stating that the sea itself contains many hazards, therefore they would not be able to say
that the defendant’s negligence was the sole cause.
7. Commercial Airplanes
a. Newing v. Cheatham: P was killed in a plane crash that seemed to be caused by the plane
running out of gas. Found beer by plane and assumed that the pilot was drinking and failed to
fill up the plane. RIL was applied & P was entitled to a directed verdict bc the Ps
circumstantial proof was so convincing (D had alcohol on his breath, empty beer cans were
found, it was a clear day, there was not any technical problems with the plane) and Ds response
was so weak that the inference of D’s negligence was inescapable.
i. Rule: there is no evidence of any negligence, incompetence or other defect in the
planning and construction of the vessel or in any changes subsequent thereto to
establish that it was unseaworthy at the time of departure on its last voyage.
8. Exclusive Control in Medicine
a. Ybarra v. Spangard: A multi-defendant suit, P sues the multiple parties bc he is not sure which
one caused his injury. P had surgery, given anesthesia, woke up felt pain in his arm, got worse
and he developed paralysis. P is having an issue proving exclusive control bc he was not
conscious. Burden of proof placed on the D to prove that they did not cause the injury.
i. Rule: Where a plaintiff receives unusual injuries while unconscious and in the course
of medical treatment, all those Ds who had any control over his body or the
instrumentalities which might have caused the injuries may properly be called upon to
meet the inference of negligence by giving an explanation of their conduct
b. Where the P has few or no facts about how the accident happened and the Ds control/instr. Or
whatever caused the injury -> RIL
i. If P can establish exactly how the accident happened, NO RIL (bc there is nothing to
infer)
c. Common Knowledge: Common place injury where any lay person could tell that there was
negligence – (1) Injury to a health part of the body or (2) Injury to a part of the body that was
not even close to the original site.
i. If it is not common knowledge, expert testimony is needed

CAUSE IN FACT
A. Overview
1. the requirement that there must be a relation of cause and effect between defendant’s negligent conduct
and plaintiff’s injury.
a. The P, as part of the prima facie case, must prove both
b. There may be several negligent D's, facts may be too meager, expert witnesses may disagree about
the cause
c. Rst. 3d. §26 Factual Cause: Tortious conduct must be a factual cause of harm for liability to be
imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the
conduct. Tortious conduct may also be a factual cause of harm under § 27.
2. It involves asking whether defendant’s conduct brought about plaintiff’s injury, i.e., was there an
empirical connection between the two.
B. But-For test – Used to determine cause in fact.

37
1. Rule: Cause in fact exists if, but for [or absent] defendant’s negligent conduct, the injury to plaintiff
would not have occurred.
a. Ds negligence is not a cause of Ps injury if it would the injury would have occurred even without
Ds negligence
2. Standard of proof: causation must be proved by a preponderance of the evidence, which means that
plaintiff must establish that defendant’s negligent conduct caused her injury more probably than not
a. When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct
that exposed the plaintiff to a risk of harm and that the tortious conduct of one or more of them
caused the plaintiff's harm but the plaintiff cannot reasonably be expected to prove which actor or
actors caused the harm, the burden of proof, including both production and persuasion, on
factual causation is shifted to the defendants.
3. New York Central R.R. v. Grimstad: Decedent fell off of a boat, could not swim, P (wife) saw him
drowning, went to go get something to save him but he was gone when she returned. She alleged that
but for Ds negligence in not having proper equipment she could have saved her husband. Court said
that even with equipment they do not know for sure that he would have survived, that was only
speculation.
i. Rule: To be liable for negligence the cause of the accident must be more than pure conjecture
and speculation. It must be the cause in fact of the injury.
b. More probably than not:
 Kirincich v. Standard Dredging Co.: Almost the same situation as Grimstad but in this
case the life saving had already begun and it was more probable than not that they
could have saved his life if they had sufficient life saving equipment.
c. Increased Risk of Harm
i. Reynolds v. Texas & Pacific Ry.: The P was injured when she fell down an unlit stairway
while exiting Defendant’s train at night.
 Rule: The standard adopted here would be that: where the negligence of the D greatly
multiplies the chances of accident to the P, and is of a character naturally leading to its
occurrence, the mere possibility that it might have happened without the negligence is
not sufficient to break the chain of cause and effect.
ii. Zuvhowicz v. United States: P was given a prescription that stated the dosage wrong, had bad
side effects, was diagnosed with PPH and died. The issue was the causal link between the
mislabeling and the death of P. Used expert testimony to establish the link.
 Rule: Strong causal link - If (a) a negligent act was deemed wrongful because that act
increased the chance that a particular type of accident would occur, and (b) a mishap of
that very sort did happen, this was enough to support a finding by the trier of fact that
the negligent behavior caused the harm.
d. Joint and Several Liability
i. Joint liability: means that each of two or more defendants who contribute causally to an
indivisible injury of the plaintiff may be liable for plaintiff's entire damage award.
 Plaintiff may recover her whole award from any one defendant or part from each.
 Plaintiff may not recover her whole damage award more than once; she can't recover
her whole award two or more times.
 When the harm is indivisible, each is liable for the Ps damages
ii. Several liability: means that each defendant is liable to plaintiff for only a portion of her
award.

38
  Apportionment of damages among defendants may be done on the basis of causation
where the harm to plaintiff is capable of division--i.e. where each defendant has caused
only a separable part of plaintiff's injuries.
 Today apportionment of damages among defendants may also, or instead, be done on
the basis of each defendant's fault,
iii. Rst. View on multiple causes:
 Endorses the view that all joint tortfeasors are fully responsible for the undivided
consequences of their own actions.
 Damages in joint tortfeasor negligence cases
1.Damages for harm are to be apportioned among two or more cause where the are
distinct harms or where the is a reasonable basis for determining the contribution
of each cause to a single harm. (Restatement (Second) §433A).
e. Multiple Sufficient Causes:
 Kingston v. Chicago & N.W. Ry.: Sparks from Ds train caused a fire in the NE, which
joined with a fire form the NW started by an unknown cause, then together they
destroyed P’s property. Ds negligence in starting the fire was found to be the cause in
fact of Ps injury
1.Rule: When two separate, independent, and distinct agencies, each of which
constituted proximate cause of Ps damage, and either of which, in the absence of
the other, would have accomplished such result, both will bare appropriated
damages.
 Rst. 3d §27 If multiple acts occur, each of which alone would have been a factual cause
of the physical harm at the same time in the absence of the other act(s), each act is
regarded as a factual cause of the harm.
 Hill v. Edmonds: D left their car parked without light in on the middle of the road, P hit
ended up hitting them. Court said that assuming, that [the driver of the car] was
negligent, the accident could not have happened had not the truck owner allowed his
unlighted vehicle to stand in the middle of the highway.
1.Rule: Where separate acts of negligence combine to produce directly a single
injury each tortfeasor is responsible for the entire result, even though his act alone
might not have caused it.
f. Indeterminate Causes (Alternative Liability)
i. Alternative causation, one or the other was the cause of the injury
ii. Summers v. Tice: P was hunting with the Ds, a bird flew by P and both Ds shot at it and P
ended up getting injured. Once P proves both actors are negligent, burden of proof shift to the
Ds for them to prove that they did not cause the damage.
 Rule: Where a group of persons are on a hunting party, or otherwise engaged in the use
of firearms, and two of them are negligent in firing in the direction of a third person
who is injured thereby, both of those so firing are liable for the injury suffered by the
third person, although the negligence of only one of them could have cause the injury.
To hold otherwise would be to exonerate both from liability, although each was
negligent, and the injury resulted from such negligence
1.The burden of proof shifts to the Ds on the issue of causation, where there are
multiple defendants and it is not possible for the P to say which one of them
caused the harm

39
 2.P has to join all the possible causal actors, P has to prove that each and everyone
of them is neligent
3.If not all of the negligent defendants are not present, they cannot use Summers. P
has to prove that all the causal agents are in the case
 Limits: The action has to be simultaneous, increases probability that one of the actors
caused the damage
g. Market Share Liability
i. Under the market share approach:
 D is liable for the proportion of damage represented by its market share
 D can escape liability only if D can prove that it could not have made the product which
caused the P's injury.
 The defendant manufacturers brought to trial must comprise a substantial share of the
market
 The product which caused the P's harm must be fungible
1.Skipworth v. Lead Industries Ass'n: the P was unable to establish a strong causal
connection in an action against D lead paint manufacturers. In this case,
apportioning liability based on a manufacturer D's share of the market would not
serve to approximate that D's responsibility for injuries caused by its lead paint. A
manufacturer whose lead product had a lower bioavailability than average would
have caused less damage that its market share would indicate. Pigments used in
lead do not pose the same exact risk.
2.Guns – cannot use this bc guns are not fungible (generically similar) products.
3.Asbestos – cannot be used for this bc there are different kinds/exposures
ii. Sindell v. Abbott Laboratories: Ps mother took the drug DES while she was pregnant with P.
Ds had been warned to stop marketing the drug to preventing miscarriages bc it caused cancer
in the fetus later in life. Multiple Ds that were manufacturing companies of the drug sued by P
bc she developed the exact illness. Court used market share liability to appropriate the
damages. Ds had to prove that they were not manufacturing the drug during the time that Ps
mom could have taken it.
 Rule: In certain circumstances where the plaintiff is unable to identity the actual
tortfeasor and it is unjust to preclude them from recovery, then the group responsible
for the overall harm can be held liable. Damages are appropriated by their share of the
market.
h. Loss of Chance of Survival
i. Herskovits v. Group Health Cooperative: P accused D of negligently failing to diagnose his
cancer, which lowered decedents chance of survival over 5 years by 14%. Reversed for the P.
Court said that the reduction of a chance of survival is the cause of death bc that reduction
harms you by the loss of the chance of survival.
 Rule: A reduction in P's chance of survival as demonstrated by expert medical
testimony is sufficient evidence of a causal relationship between D's negligence and P's
injury for the case to go to trial.
 Concurring judge’s “all or nothing approach” - a P who shows that but for the D’s
negligence, the decedent would have had over a 50% chance of survival can maintain
an action for the death and D will be liable for all damages arising from the death;
plaintiff who shows that but for the D’s negligence, the decedent had less than a 49%
chance of survival, the P recovers nothing.
40
 ii. Evidence of LCS: expert testimony used
iii. Damages in LCS cases: measured by damages caused by premature death. Like loss of
earnings and additional medical expenses
iv. Increased risk, not yet followed by actual damage

Proximate Cause – SCOPE OF LIABILITY

A. General: Even after P has shown that D was the cause in fact of Ps injuries, P must show that D was the
proximate cause of those injuries, that the injury of P is within the “scope of liability” of the neligent acts of
D.
1. Requires a sufficiently close relationship between Ds conduct and the injury. This is not an issue until
P shows there was a breach. Limiting liability for the harm that D has caused. May not always arise if P
suffers the primary harm associated with the negligent act of D. (ex. P is hit by D bc they ran a red
light)
2. Elements to consider for proximity:
a. Breach  (Time) (Actions)  (Distance)  Injury
3. Two different views: Foreseeability v. Direct Causation
B. Direct Cause View:
1. where the facts present an uninterrupted chain of events (absent of any external intervening force of
any kind) from the time of the defendant’s negligent act to the time of plaintiff’s injury. Type of harm
does not matter, it only matters that the harm resulted from the negligent conduct and there was no
independent intervention.
2. In Re Polemis & Furness, Withy & Co.: Ds workers knocked a plank down to the ships bottom and it
started a fire bc of the chemicals present, Ps ship was destroyed. It was negligent for the workers to
knock over the plank, they could have reasonable foreseen that some harm would have came from that
– it need not be the exact harm that occurred.
a. Rule: As a result of Ds negligence, D is liable for damages that he or she directly causes whether
or not the type of harm is foreseeable
b. Court was deciding whether a P could recover for unforeseeable types of harm that resulted from
the D’s negligence. Held that P could recover for an unforeseeable result (the ship fire) as long as
that result was “directly” caused by the D’s’ negligence. I.E., not brought about by independent
causes having no connection with the negligent act, except that they could not avoid its results.
3. Proximate Cause & Intervening Causes
a. Intervening Causes: a new cause that comes into operation after defendant’s negligent conduct
has begun to take effect and before plaintiff’s harm occurs and that interacts with defendant’s
conduct to bring about plaintiff’s injury, describes when the new cause arises.
b. Superseding Cause: an intervening cause that the court concludes “breaks the chain of
causation,” i.e., defeats proximate cause. Expresses a legal conclusion that the intervening cause
breaks the causal chain, i.e., defeats proximate cause.
c. All superseding causes are by definition intervening causes, but not all intervening causes will act
as superseding causes.
i. A new independent cause, coming into existence after the Ds negligence but before Ps injury
d. Pre-Existing Conditions: if a condition existed before the Ds negligent act, it is a pre-existing one
and will not break the chain of events. E.g. the gas that was in the boat in Polemis existed before
the Ds knocked over the plank and therefore was not an intervening cause
4. Rescuer’s Doctrine – A rescuer is not a superseding cause

41
 a. An emergency invites rescue, because there is a duty owed to the rescuer it negates any defense of
assumption of risk (that the rescuer took on the risk themselves so they cannot complain). If the
rescuer acted in reasonable care, mere contributory negligence of the P will not defeat the duty
unless he was reckless.
b. To achieve rescuer status one must demonstrate:
i. The D was negligent to the person rescued and such negligence caused the peril of that person
ii. The peril was imminent
iii. A RPP would have concluded such peril existed
iv. The rescuer acted with reasonable care & in reasonable time
5. Wagner v. Int’l Ry.: P (decedent) was on a crowded train traveling over a bridge when his cousin was
thrown out of the train. P went to look for him on the tracks potentially as a result of the encouragement
by D, he then slipped and fell.
a. Rule: A tortfeasor is liable to all those who are injured in a reasonable rescue attempt. A tortfeasor
will not be held liable for injuries suffered by a rescuer if the rescue efforts were unreasonable.
6. Acts of Third Persons as Superseding Causes:
a. Pittsburgh Reduction Co. v. Horton: D discarded a dynamite cap that was picked up by a young
boy. The young boy collected caps and often left them out on the floor for his mother to pick up.
Later, the boy traded the cap to another boy who was injured when it exploded. The court did not
allow a claim against D bc the child’s parents acted as a superseding cause.
i. Rule: If the Ds active force has come to rest, but in a dangerous position creating a new
danger which then occurs, we say that Ds act was the proximate cause of Ps injuries. BUT
where the Ds active force has come to a position of apparent safety, the court will no longer
follow it; if some new force later combines with this condition to create harm, the result is too
remote from the Ds act
7. Negligence & Criminal Acts:
a. Brower v. New York Central & H.R.R.: P was traveling in a horse drawn buggy, went over the
train tracks and his horse ended up being killed and buggy damages by the train. Ds flagman failed
to signal to P that a train was coming. While P was in shock over what just happened, thieves stole
the rest of the items from his buggy. D should have anticipated that this was a natural & probable
event bc they were in a big city & D had guards on their train to protect against thieves. Therefore,
D should have afforded Ps items protection from the thieves.
i. Rule: The act of a third person, intervening and contributing a condition necessary to the
injurious effect of the original negligence, will not excuse the first wrongdoer, if such act
ought to have been foreseen.
ii. Dissent: Claimed that the acts of the thieves were an independent intervening cause.
b. Hines v. Garrett: A R.R. missed Ps stop, forced her to walk back to it through an area that was
frequented by tramps, hobos and other questionable characters. P ended getting raped twice. Court
found that it was foreseeable bc it was known that it was a bad area and they owed a special duty
to their passengers so the rapists were not an intervening cause.
c. Britton v. Wooten: P (landlord) sued D (store owner) bc their building was destroyed when an
arsonist set the building on fire and D had negligently stacked up garbage. Court found D liable on
the grounds that it rejected that a third party relieved D of their original negligence.
d. Bell v. Board of Education: D (school) left a young girl behind on a field trip, on her way back to
the school she was raped. Court found for P on the grounds that they could not say that the
intervening act of rape was unforeseeable.

42
 e. Atherton v. Devine: P was injured in a crash caused by D, on their way to the hospital P was again
in another crash. Court found that the initial crash caused by D was a substantial factor in causing
the injury.
8. Natural Disasters: Considered unforeseeable but not considered to be superseding causes
a. Rst. 3d. § 43 Intervening Acts and Superseding Causes: When a force of nature or an independent
act is also a factual cause of harm, an actor's liability is limited to those harms that result from the
risks that made the actor's conduct tortious.
b. Limits that may break the chain of causation, something very unforeseeable like a terrorist attack
or an unforeseen storm.
C. Foreseeability Test
1. D is only liable for the harmful results that are the normal incidents (foreseeable) of and within the
increased risk caused by his acts
2. Overseas Tankship Ltd. V. Morts Dock & Eng. Co. (Wagon Mound #1): D discharge oil in a harbor,
oil came by Ps boat, two days later debris caught on fire and landed in the oil which ended up
destroying Ps boat. Court said that there is know way that D could have known that the oil was
flammable while on water. Discredited the Polemis rule.
a. Rule: D should only be liable for those resulting harms that were foreseeable to the reasonable
person.
3. Wagon Mound #2: Same scenario except this time D had reason to know that harm would occur from
the act of releasing oil into the harbor and there was a statute against doing so. Not just enough that the
risk should be foreseeable but the risk that is foreseeable must be a negligent risk
a. Rule: Tortfeasors are liable for injuries that are (from their own perspective) possible and
therefore reasonably foreseeable consequences of their negligence
4. What kinds of harms are foreseeable? One decides if the harm was a foreseeable kind of harm when
the negligent conduct is reasonably known to cause a certain type of injury and there is not intervening
cause
a. Doughty v Turner Manufacturing Co., Ltd.: D knocked a cement cover into a vat a of molten
chemicals, did not splash anyone then. Eventually it caused an explosion which ended up injuring
P. Court said that the particular harm in which P received was not the risk that D had been neligent
of. The only reason P was injured was because of the unforeseeable explosion. D did not have a
duty to protect P from this, as they could not have foreseen it.
i. Rule: If there is no duty owed to the plaintiff in regard to the initial action that led
consequentially to the injury, then the defendants are not liable for damages.
b. Hughes v Lord Advocate: Workers left lamps as warnings of an uncovered manhole. A child came
by and started to play with the stuff, ended up dropping a lamp into the hole, which caused an
explosion and he was burned. Court said that the type of injury (lamp burns) were reasonably
foreseeable.
i. Rule: As long as the general type of injury can be foreseen, there will be proximate cause.
5. Extensive Consequences from physical injuries:
a. Thin Skull Rule: D takes P as they find them. If there is a preexisting condition, that causes a
greater extent of harm than a D could have foreseen bc the D aggravates a preexisting condition,
they are still liable
i. Not really an exception, if you are negligent and foreseeable cause some injury and it causes a
greater extent than what you could foresee, you are liable
ii. If you can see some extent of harm then you are liable for the full extent of the harm

43
 iii. Smith v. Brain Leech & Co.: Risk of harm here was a burn on the lip, pre -existing exposure
made them susceptible to cancer
iv. A practicality, P would have had to prove in each and every case what a normal extent of
harm was and the jury would have had to address the weakness and abnormality.
v. Everyone has some limitation of some kind, this could be foreseeable
6. Foreseeability & Zone of Danger – The Unforeseeable P
a. Marshall v. Nugent: Truck #1 cut around a corner, pushed Ps car off of the road. P went to warn
oncoming traffic of the road block, driver #2 came up the hill and ended up injuring P bc it could
not get out of the way with the cars blocking the other side of the road. Court found that D #1 was
the proximate cause of Ps injuries.
i. Rule: Any extra risk create by a negligent act is the proximate cause of Ps injuries if it
reasonably foreseeable
ii. Scope: The view point of a common man, as to whether the causal relation between the
negligent act and the plaintiff's harm which in fact was a consequence of the tortious act is
sufficiently close to make it just and expedient to hold the defendant answerable in damage
 The further you get from the accident and how likely the risk was the further you get
from getting the issue to the jury
b. Palsgraf v. Long Island R.R.: P was standing on a train station platform, a man carrying an
unmarked box of fireworks was attempting to get on a train that was already leaving, Ds helped the
man get on but ended up knocking his package on to the tracks which exploded and the force led to
scales falling over and injuring P. Cardozo said the only negligence here is that to the mans
property, that there was no duty to P bc she was not in range of apprehension, there is not breach
of the duty unless you are negligent to the foreseeable P.
i. Rule (Cardozo): A duty that is owed must be determined from the risk that can reasonably be
foreseen under the circumstances.
 A defendant owes a duty of care only to those who are in the reasonably foreseeable
zone of danger. (foreseeability test)
ii. Dissent (Andrews): This issue should be handled according to proximate cause. There was a
natural and continuous series of events which h led to P's injury.
 Remoteness in time or space can be looked upon by courts as inviting some sort of
intervening force between the cause and effect. Here, there is little to no remoteness
between in time or space.
 Everyone owes everyone else in the world the duty of refraining from acts that may
unreasonably threaten the safety of others. (direct causation)
c. Increased risk of harm but damage not a result of that increase:
i. If you give a child a loaded gun and they drop in on their toe and break it, you are not liable
bc the increased risk of harm the P created never materialized.
d. Foreseeable Class:
i. Another exception to the foreseeability rule: the fact that the injury to a particular plaintiff was
not especially foreseeable is irrelevant, as long as P is a member of a class to which there was
general foreseeability of harm.
ii. Petition of Kinsman Transit Co - D negligently moors a ship; the ship breaks away. It smashes
a drawbridge, causing it to create a dam which results in a flood. The Plaintiffs are various
property owners whose property was damaged by the flood. The court held that these owners
can recover against D, even though it would be hard to foresee which particular owners might

44
 be flooded. All of the Ps were members of the general class of riverbank property owners to
which there was a risk of harm from flooding.
7. Rst. 2d. §281: If the actor’s conduct creates such a recognizable risk of harm only to a particular class
of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could
not reasonably have
8. Foreseeability Rule:
a. Rst.2d §448 Intentionally Tortious or Criminal Acts Done under Opportunity Afforded by Actor's
Negligence: The act of a third person in committing an intentional tort or crime is a superseding
cause of harm to another resulting therefrom, although the actor's negligent conduct created a
situation which afforded an opportunity to the third person to commit such a tort or crime, unless
the actor at the time of his negligent conduct should have realized the likelihood that such a
situation might be created thereby and that a third person might avail himself of the opportunity to
commit such a tort or crime.
9. Foreseeability of Creation of Risk:
a. Rst.2d §449 Tortious or Criminal Acts the Probability of Which Makes the Actor's Conduct
Negligent: If pthe realizable likelihood that a third person may act in a particular manner is the
hazard or one of the hazards which makes the actor negligent, such an act whether innocent,
negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm
caused thereby
10. Harm within the Risk
a. Definition: not clear exactly what is to be foreseen, focuses on the particular risks that make the
D’s conduct negligent in the first place
b. Rst. 3d §29: An actor's liability is limited to those harms that result from the risks that made the
actor's conduct tortious.
i. Berry v. Sugar Notch Borough: P was driving during a windstorm at an excess rate of speed,
a tree fell on his car (D knew the tree was dangerous). P was not contributorily negligent bc
his speed had nothing to do with the three falling ON TOP of his car as he passed under it.
The harm that the statute is meant to protect against would be that he would not be able to
stop in time but here that was no a factor.
 Rule: To impose liability based on the violation of a statute, the violation must be the
cause of the injury sustained, and not some mere coincidence
ii. anticipated injury does not make the actor liable to the persons so injured

Negligent Infliction of Emotional Distress

A. General basis of liability: The defendant breaches a duty to the plaintiff by creating a risk of physical
injury and the plaintiff suffers emotional distress as a result
1. The plaintiff must be within the “zone of danger” and ordinarily must suffer physical symptoms from
the distress
2. Exception: The defendant breaches a duty to a bystander not in the zone of danger who (i) is closely
related to the injured person, (ii) was present at the scene of the injury, and (iii) personally observed
or perceived the event
Direct Victims
B. Traditional View - Contemporaneous Physical Injury Rule (Impact rule, first stage)
1. No recovery for emotional distress alone, unless there is an impact then the ED can be parasitic over
those damages (now the touch can be the slightest one)

45
 2. Under this rule, plaintiff could recover for emotional distress as an element of damages (so-called
“parasitic damages”) if:
a. (a) she was struck directly by a negligent defendant (or by an object under defendant’s control,
such as an automobile),
b. (b) she suffered a physical injury caused by the impact (the “contemporaneous physical injury”
requirement), and
c. (c) she also suffered emotional distress arising from the impact or threat of the impact.
3. Courts did not allow recovery for emotional distress even when there were physical consequences of
fright and P was in danger zone because (1) courts were concerned about flood of fictitious claims and
(2) proximate cause issues (thought that fear was a superseding cause)
4. Mitchell v. Rochester R.R.: Pregnant women waiting to board D's street car, as shes standing there Ds
horse car comes up to her and is so close it causes her to faint, eventually she has a miscarriage.
a. Rule: No recovery can be had for injuries sustained by fright occasioned by the negligence of
another, where there is no immediate personal injury.
C. Impact Rule (Second Stage) – only used by four states
1. the impact rule was softened, and courts allowed plaintiff to recover for emotional distress if:
a. (a) the negligent defendant caused even the slightest touching of the plaintiff,
b. (b) plaintiff suffered emotional distress as a result of the touching.
c. While some courts apparently allowed plaintiffs to recover for emotional distress alone, others
required that plaintiff suffer physical injury (miscarriage, heart attack, other illness) as a result of
the emotional distress. Given that there was no requirement that the initial “impact” itself had to
cause physical injury, NIED would seem to emerge as a separate tort at this point.
d. Case where a mouse hair that touched the roof of Ps mouth bc it was in Ds cooking was a
sufficient impact/
D. Zone of Danger – followed as a limit on liability in 10 states
1. Under this rule the plaintiff could recover for emotional distress even if she were not touched at all, if:
a. (a) plaintiff was personally in danger of being struck by a negligent defendant, and
b. (b) she suffered emotional distress caused by her fear of being struck, and
c. (c) she also suffered physical injury resulting from the emotional distress.
2. Courts rejected the impact test as artificial and unfair, believing it screened out too many worthy
claims. These courts believed that the immediacy of the threat of impact and the requirement of
resulting physical injury provided a sufficient guarantee that the emotional distress was genuine.
3. Allow recovery even if there was no touching, but the P had to be able to be harmed (within the zone of
danger)
4. Dulieu v. White & Sons: P claimed NEID after nearly being run over by the Ds team of horses while
working behind a counter caused her to miscarriage. Nervous shock must come out of fear of harm for
oneself not by horror of some other person.
5. Amaya v. Home Ice: P (mother’s) claim for NEID dismissed because she was not in the zone of danger
when her child was injured
E. Other Direct Victims
1. Various situations in which the negligently inflicted ED “occurs in the course of specified categories of
activities, undertakings, or relationships in which negligent conduct is especially likely to cause
serious emotional disturbance.” Rest. 3d §46(b).
2. In these situations there is no requirement that the plaintiff be in fear of being physically struck by
the defendant (or that he or she witness harm to a third person, as under bystander recovery, below).

46
 a. Older cases included negligent mishandling of corpses by hospitals and funeral homes and
negligently sending a telegram erroneously informing the recipient of the death of a loved one.
b. More recent cases have applied this category where the plaintiff suffers ED from “consumption of
food that is then found to have been contaminated with repulsive foreign objects.”
3. Medical Cases
a. Some jurisdictions have allowed NIED claims where physicians negligently diagnose a patient
with a serious disease or cause the loss of a fetus, where a hospital loses a newborn infant, or
where a hospital (or other person) exposes a patient to HIV infection.
b. Molien v. Kaiser Foundation Hospitals, found that a duty was owed to a husband, not himself a
patient of defendant doctor, when the doctor negligently misdiagnosed syphilis in the wife, purely
on the ground that it was foreseeable the husband would suffer ED as a result of the misdiagnosis
of syphilis.
Bystanders (Witnesses to Accidents to third parties) – don’t talk about the three if bystanders
F. The Dillon Foreseeability/Guideline Approach
1. Dillon v. Legg: P (mother) witnessed her son get run over and killed by D, P was standing some feet
away while her daughter was closer to her son. Her daughter was found to be within the zone of danger
and allowed to bring a claim at the TC but the mother’s was dismissed. Appellate court reversed,
overruled Mitchell.
a. The issue is now: whether the negligent defendant owes the witnessing bystander any duty of
reasonable care to prevent ED
b. Holding: a bystander could recover for emotional distress upon witnessing a negligently caused
injury to a third person, as long as the defendant could reasonably foresee such harm to the
plaintiff. Court felt that both the impact rule and the zone of danger rule were too restrictive,
screening out potentially worthy claims.
c. Rule: Whether there was a duty of care, depends on whether a reasonable person in defendant’s
position could foresee causing emotional distress to the plaintiff.
d. Foreseeability existed depended on three “guidelines”:
i. (1) plaintiff’s presence “near the scene” of the accident,
ii. (2) “sensory and contemporaneous observance” of the accident;
iii. (3) close relationship between plaintiff and third-party victim.
e. Additional requirements:
i. (1) plaintiff still had to suffer physical injury resulting from the emotional distress (i.e., no
recovery for ED alone), and
ii. (2) there had to be an actual injury and defendant liability to the third-party victim – if the P
heard the screech of brakes and mistakenly thought the third party had been struck and
suffered resulting emotional distress, P could not recover, as there had been no injury in fact
to the third party
f. Summary: While the defendant did owe an independent duty to the witnessing bystander, that duty
did not arise unless the third party was actually injured
G. The Thing Requirement Approach – physical injury as result the emotional distress
1. Thing v. LaChusa: Where a mother was told by somebody that her son had been hit moments ago,
mother rushed out and saw her son's body lying on the street. Court said there would be no recovery, it
is foreseeable that masses of people may be ED by the death of someone.
a. the court rejected a broad foreseeability approach to duty and turned Dillon’s guidelines into
requirements (elements)

47
 b. Allowed recovery for emotional distress alone without plaintiff having to prove resulting physical
injury. Standard of proof, very high, for ED: Plaintiff must suffer ED “beyond that which would be
anticipated in a disinterested witness.”

Defenses to Negligence
A. Application: On exams if you want to prove this, you have to go through contributory negligence the same
way as regular negligence, don’t have to say the rules, just do the analysis for each element. This would go
after the damages element of the Ds negligence.
1. Usually an issue for the jury
2. Elements
a. Duty: P has a duty to use reasonable care for ones own safety.
b. Breach of Duty: Conduct on the part of the P which falls below the standard to which he should
conform for his own protection, and which is a legally contributing cause co-operating with the
negligence of the D in bringing about Ps harm.
i. RIL CANNOT BE USED
ii. Some JDs are more favorable to the P when it comes to standards of care, especially if they
are a child or physically challenged
c. Cause in fact: Ps negligence that contributes as a cause to their own harm, P & D can both be the
cause of Ps injuries
d. Proximate Cause – the intervening conduct of the P is not regarded as a superseding cause
e. **Damages** - Depends on what view the JD will adopt
i. Contributory Negligence – No recovery for P if Proven
ii. Comparative Negligence – Depends on the percent neligent proven

48
 f. Caveat: just bc a P may be found Contributorily negligent does not mean the D gets a directed
verdict, if reasonable minds might disagree then the P gets to the jury. Only if the issue is so one-
sided then the court would take the issue from the jury. Proving CN is not an automatic win.
B. Contributory Negligence
1. Overview
a. D establishes CN by showing that P’s unreasonable conduct caused the Ps injuries.
b. All or nothing approach – if proven, completely bars P from recovery
c. Policy: P should not recover if P contributed to their injury
d. Rule: Contributory negligence is conduct on the part of the P which falls below the standard to
which he should conform for his own protection, and which is a legally contributing cause co-
operating with the negligence of the D in bringing about Ps harm.
e. Butterfield v. Forrester: There was an obstruction in the highway (D put a pole across the road bc
he was doing construction but left one side open), Bc of the obstruction P was thrown from his
horse and injured, Witness said if P was not going so fast he would have saw the pole.
f. Beems v. Chicago, Rock Island & Peoria R.R.: P (intestate) was a worker of D, P was trying to
uncouple trains, singled to driver that they were going too fast, went back to try to uncouple them
and was killed bc D did not slow down.
i. What contributory negligence is not
2. Statutory Violation
a. D violates a statute that was designed for Ps protection, can CN be used?
i. Same as if the violation was not based on statute law
ii. Absolute protection to certain types of Ps, children
 Child labor acts, sale of guns to minors -> bars CN
b. Driver who runs a stop sign and hits someone?
i. Peds are not as vulnerable as kids are, failure to RPP can be negligence
c. Answer depends on how the court interprets legislative intent
d. Ps negligence, failure to use reasonable care has to be casually connected to the injury.
i. Ex. No headlights (statute saying you need to have your lights on), is not a cause if it is a
bright day
e. Spier v. Barker: if the law says that you have to wear a seat belt and you don’t, negligence per se?
3. Seatbelt Defense
a. Claim that P is contributorily negligent for not wearing a seatbelt (after D causes a crash) because
the failure to wear a seatbelt exacerbated Ps injuries.
b. Derheim v. Fiorito Co.: D hit P while trying to turn left and P was not wearing a seatbelt so they
sustained injuries. Court held that the seat belt defense cannot be used here because if the courts
allow this defense, what would stop defenses in regards to other safety measures not taken (head
rest adjustment, etc.) -> lengthy trials and PP costs. Also, it is unfair to mitigate damages to
someone who is in no way responsible for the accident
i. Court denies the use of the doctrine of avoidable consequences: P could have done something
to mitigate the damages - If you can take the steps to avoid damages, then you should be liable
if you fail to take those steps
 Court denied bc - thin skull rule (which is usually an uncontrollable defect, wouldn't
this rule out any contributory negligence defense?)
 This is usually applied to damages that occur after the failure to meet a standard of care
1. Avoid further damages by taking precautions AFTER the injury

49
 2. If you apply this you are forcing the P to take precautions against something they
really couldn’t foresee
4. Last Clear Chance – P sues D, D uses P’s contributory negligence, P comes back and uses this
a. Overview
i. Rule: If the defendant discovered or should have discovered the plaintiff’s peril, and could
reasonably have avoided it, the plaintiff’s earlier negligence would neither bar nor reduce the
plaintiff’s earlier recovery
ii. (1) It is only a plaintiff’s doctrine—that is, it serves to excuse the plaintiff’s contributory
negligence in the limited situation described above (and two others listed below).
iii. (2) It is still an “all-or-nothing” doctrine—that is, a plaintiff who successfully invokes last
clear chance will recover all her damages from defendant; they are not apportioned between
the parties.
iv. ** If P & D are both inattentive, LCC DOES NOT excuse P’s Negligence**
b. Helpless Plaintiff (§ 479 LCC): A plaintiff who has negligently subjected himself to a risk of
harm from the defendant's subsequent negligence may recover for harm caused thereby if,
immediately preceding the harm:
i. (a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
ii. (b) the defendant is negligent in failing to utilize with reasonable care and competence his
then existing opportunity to avoid the harm, when he
 (i) knows of the plaintiff's situation and realizes or has reason to realize the peril
involved in it or
 (ii) would discover the situation and thus have reason to realize the peril, if he were to
exercise the vigilance which it is then his duty to the plaintiff to exercise.
c. Inattentive Plaintiff (§ 480 LCC): A plaintiff who, by the exercise of reasonable vigilance, could
discover the danger created by the defendant's negligence in time to avoid the harm to him, can
recover if, but only if, the defendant
i. (a) knows of the plaintiff's situation, and
ii. (b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to
discover his peril in time to avoid the harm, and
iii. (c) thereafter is negligent in failing to utilize with reasonable care and competence his then
existing opportunity to avoid the harm.
d. Davies v. Mann: the P had left his ass fettered in the road eating grass, D negligently drove a team
and wagon down the hill and ran over the animal, which, being fettered, was unable to move. The
court held that the plaintiff’s contributory negligence was no defense. The plaintiff “is entitled to
recover,” stressing that if the rule were otherwise, “a man might justify the driving over goods left
on a public highway, or even a man lying asleep there….”
C. Comparative Negligence – use when there is a dollar amount
1. Overview
a. Rule: a partial legal defense that reduces the amount of damages that a plaintiff can recover in a
negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed
to cause the injury.
b. P is no longer completely barred by P is assigned a percentage of fault and Ps damages are reduced
by their percentage of fault
i. Ex. Jury decides the negligence is 30%, damages are 10k, P recovers 70%
c. The fact that a P may have been liable contrib. negligence shall not bar recovery, but the damages
shall be diminished by the jury in proportion to the amount of negligence attributable to such P

50
 2. Pure Comparative Negligence
a. Apportions liability in direct proportion to fault in all cases even if the P is more negligent than
the D the P will recover a portion. (If P is more negligent than D, they can still recover)
b. Li v. Yellow Cab Co.: P had attempted to cross three lanes of traffic, D’s driver was traveling at an
excess speed, ran a yellow light and hit P. Rejects contributory negligence, introduces comparative
negligence. The court said that contrib negligence was unfair, each party should bare the burden on
the injury that they caused.
3. Modified Comparative: damages on the basis of fault up to the point where Ps negligence is either
equal to or greater than the D
a. Greater Fault Bar: P is only barred if their negligence is 51% - greater than the Ds
b. Equal Fault Bar: P is barred if the neg is equal to the D - P barred at 50%
4. Multiple Defendants – states are split
a. Modified System – should Ps negligence be compared to each individual Ds negligence or the total
of Ds negligence?
i. Greater fault bar -is plaintiff barred if her negligence is greater than any one defendant’s
negligence or only if it is greater than the sum of all defendants’ negligence?
 Ex. #2: Plaintiff is 40% negligent; Defendants A, B, and C are each 20% negligent. In
this case, plaintiff will be barred if her negligence is compared to each defendant alone
(40%>20%) but not barred if her negligence is compared with the sum of all three
defendants’ negligence (40%<60%).
 States that would bar -> say it violates equal/greater fault bar to hold any D liable if a P
is more negligent then that D alone
 States that would not bar -> unfair to the P to bar her when her negligence is less than
the combined negligence of all parties.
b. Whether one is in a pure or modified system, is each defendant liable to the plaintiff only for its
proportionate share of negligence, or is each defendant jointly and severally liable to plaintiff for
her whole award?
i. Pennsylvania (371): Plaintiff may initially collect her whole award from any one defendant
(even if that party has been only minimally negligent), i.e., there is joint and several liability.
If any defendant has paid more than its percentage share, it may then seek contribution from
other defendants.
ii. Texas: Each defendant is liable initially only for its own proportionate share; joint and
several liability is abolished.
D. Assumption of Risk
1. Overview
a. Bars plaintiff from recovering even when defendant has acted negligently toward her and plaintiff
has acted reasonably in encountering the risk created by defendant.
b. Elements: Plaintiff must -
i. (1) know of the specific risk that results in her injury,
ii. (2) understand (appreciate) the nature of the risk,
iii. (3) voluntarily encounter the risk, and (some courts would add) that
iv. (4) plaintiff’s conduct under all the circumstances indicates that she consents to relieve
defendant of the duty to protect her.
2. Knowledge of the risk
a. Murphy v. Steeplechase: P was at Ds amusement park, P saw people having fun on a ride and
falling off, P got on the ride, said it jerked and threw him off and he fractured his knee cap. P was
51
 barred from recovery bc P knew there was a risk of falling, that was the point of the ride, the
inherent risk. His knowledge by seeing people on and still getting on the ride he accepted the risk,
even if he didn’t see the people falling, the name of the ride is the flopper.
i. Rule: If you voluntarily encounter some known risk, you will be barred by assumption of risk.
Someone who participates in an activity consents to the risks that are obvious and necessary in
the activity
3. Appreciation of the risk
a. Maddox v. City of New York: P, baseball player suffered carrer ending injury when his foot got
stuck in mud that was on the field. P knew of the risk and being a professional baseball player was
able to appreciate it, even so knowing that mud is wet is common knowledge.
4. Knowledge of the SPECIFIC risk
a. Russo v. The Range Inc.: P went down a giant slide at Ds amusement park, the ticket he bought
said that he assumed liability for any risks, P was injured in an unusual event. P was able to make
it to the jury bc he did not assume that specific risk.
5. Risk encounter voluntarily
a. Marshall v. Ranne: P was trapped in his house for fear of getting bitten by D’s boar. P attempted to
get into his car to leave but the boar came up to him and bit him. P did not assume the risk because
he was not given a choice, he had no alternative and the boar was taking away a legal right from
him.
6. Meistrich v. Casino Arena Attractions, Inc: P was iceskating at Ds park, P fell and got hurt.
Allegations that D negligently prepared the ice and allegations that P assumed the risk bc he knew his
skates were slipping and was skating locked arms with someone.
a. Primary (either no duty owed or the duty was not breached):
i. The plaintiff's assumption of a risk is only the counterpart of the defendant's lack of duty to
protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even
though he was quite reasonable in encountering the risk that caused it.
ii. the court assumes that you fully comprehend the risks of participating in an activity because
those risks are perfectly obvious to any reasonable individual.
iii. Not an affirmative defense, prima facie negligence – P cannot prove that D had a duty or that
they breached it
iv. If plaintiff cannot prove that defendant owed her a duty of care or breached that duty,
"primary" assumption of risk is established, and the plaintiff cannot recover
v. If plaintiff can prove defendant owed and breached a duty of care, then plaintiff is said to
"negate" primary assumption of risk, and plaintiff potentially can recover.
vi. Basically can the P prove their prima facie case of negligence? That’s all primary means
b. Secondary (assumption of risk as an affirmative defense to an established breach)
i. Really an aspect of contributory negligence, comes into play only if P proves duty & breach
ii. If defendant did owe and breach a duty of care toward plaintiff, and if plaintiff then
knowingly and voluntarily encountered the risk so created, the only issue regarding plaintiff's
conduct is whether plaintiff acted negligently (unreasonably) in encountering the risk.
iii. “secondary" or "unreasonable" assumption of risk is really a form of contributory negligence
c. Analysis:
i. First, one must decide whether defendant owed or breached a duty of care toward plaintiff in
relation to the particular risk that resulted in plaintiff's injury.

52
  If defendant did not owe or breach a duty of care toward plaintiff, the case would stop
there, because plaintiff's prima facie case has failed; the court would not have to reach
the issue of plaintiff's negligent (secondary) assumption of risk.
 Only if the court concludes that defendant owed and breached a duty of care to
plaintiff would it then go on to a second level of analysis involving plaintiff's conduct.
ii. The question then would become whether plaintiff acted negligently in encountering the risk
(secondary assumption of risk);
 if so, defendant would have an affirmative defense based on plaintiff's negligence.
E. Assumption of Risk v. Contributory Negligence
1. You can assume the risk without being contributorily negligent
a. You can encounter a known risk carefully [or not]
b. You can be barred, even though you are acting reasonably
c. So, if a shopping mall negligently leaves ice on its sidewalks, plaintiff customer sees and
understands the risk of slipping on the ice, and voluntarily and carefully walks across it to get to a
store, she may have assumed the risk of slipping and falling but would not be contributorily
negligent (at least not necessarily).
2. You can be contributorily negligent without assuming the risk
a. If you do something negligent but you do not know of the risk
b. If the plaintiff does not see the ice but a reasonable person would have (perhaps because there was
freezing rain early that morning) and plaintiff unnecessarily runs across the ice, plaintiff may be
contributorily negligent, but would not have assumed the risk.
3. You can be both:
a. If the plaintiff both sees the ice and unnecessarily runs across it, she may have both assumed the
risk and been contributorily negligent.
4. Implied assumption of the risk under comparative negligence? – courts are split.
a. Courts generally agree that if plaintiff unreasonably (negligently) encounters a known risk,
plaintiff’s conduct is not a complete bar but rather diminishes plaintiff’s damages—i.e., plaintiff’s
negligent assumption of risk merges with comparative negligence. (Li)
b. Some courts continue to hold that plaintiff’s reasonable assumption of risk remains a complete
defense, even after the adoption of comparative negligence.
c. Other courts have abolished assumption of risk as a defense and say that the only issues are
whether defendant owed and breached a duty of care toward plaintiff (primary assumption of risk
is negated) and, if so, whether plaintiff, in confronting the risk created by defendant’s negligence,
acted unreasonably (secondary assumption of risk).
i. Under this view, if plaintiff reasonably confronts the risk created by defendant’s negligence
she is not barred—i.e., reasonable assumption of risk ceases to be a defense, and plaintiff
would recover all her damages.
ii. If plaintiff unreasonably confronts the risk, her damages may be reduced, but she is not
completely barred.
d. Some courts say that even if plaintiff has reasonably confronted a risk created by defendant’s
negligence, her reasonable “assumption of risk” can somehow be compared to defendant’s
negligence and her damages may be reduced, although she will not be completely barred.
e. Garlock prefers - that the better view is that if plaintiff has reasonably confronted a risk created
by defendant’s negligence, she should neither be barred nor have her damages reduced.

53
CONTRIBUTION AMONG JOINT TORTFEASORS
1. Arises in situations of concerted actions, joint duty or indivisible harm./
A. Several Liability
1. A situation in which each person has an obligation to pay only a proportionate share – risk of
insolvency for P. Each D is only liable for the amount they are responsible
2. Each defendant is liable to plaintiff for only the portion of plaintiff’s damages which that party is
deemed to have caused, or, under comparative negligence, which is represented by its proportionate
share of negligence.
B. Joint Liability
1. Arise in a case where one of many Ds caused a Ps injury but it is not possible to determine which D.
See Summers v. Tice
2. Burden switches to the D to show that each did not cause the injury.
C. Joint & Several Liability
1. Overview
a. A situation in which each of several obligors (anyone who bears an obligation) can be responsible
for the entire loss if the other are unable to pay.
b. Any D may be liable for the full amount of damages no matter how much they contributed.
c. That each of two or more defendants is initially liable to plaintiff for the entire amount of
plaintiff’s damage award
2. One D has paid off the entire damages to a P when there are other tortfeasor, now they may seek
contribution or indemnity from the co-defendants
a. At common law, a tortfeasor could not seek either bc the notion was that a culpable party had no
right to the court’s assistance in obtaining reimbursement from other parties.
b. Under the new regime, a tortfeasor who paid more than its “pro rata share” (usually determined on
the basis of equality) might seek contribution from other tortfeasors who were found liable; each
would owe the paying defendant its pro rata share.
54
3. Contribution - allows a loss to be shared among multiple tortfeasors
a. A defendant who seeks contribution from another defendant attempts to recover a portion of the
damages it has paid plaintiff;
b. Used in order to distribute loss by requiring co-defendants to pay a proportion
4. Indemnity - allows a loss to be shifted entirely from the paying tortfeasor to a non-paying tortfeasor in
certain circumstances
a. a defendant who seeks indemnity from another defendant seeks to shift the entire financial
responsibility onto that party.
b. Required another party to reimburse in full the party that has discharged the common law liability
5. In Comparative Negligence
a. AMA v. Superior Court: Defendant sought leave to file a cross-complaint against Plaintiff’s
parents, alleging their negligence and improper supervision of their minor son. Defendant also
requested that the judgment be reduced by the amount of the “allocable negligence” of the parents.
The trial court denied Defendant’s request. Defendant appealed.
b. AMA, defendant AMA argued that since comparative negligence now apportioned damages
between plaintiff and defendant(s) on the basis of fault (under the rule of Li), the court should also
apportion damages initially among defendants on the basis of fault [several liability]. That is, joint
and several liability should be abolished and each defendant should owe plaintiff only its share of
the damages, as determined by its percentage of fault. The AMA court, in keeping with the
majority of jurisdictions at that time, rejected this contention and held that comparative
negligence did not abolish joint and several liability.
i. Adapted the common law doctrine of indemnity “to permit a concurrent tortfeasor to obtain
partial indemnity from other concurrent tortfeasors on a comparative fault basis.
c. Insolvency of a Co-D?
i. In a joint and several liability jurisdiction, two main approaches have emerged to deal with
this issue.
ii. In one, remaining solvent defendants must apportion the insolvent defendant’s portion of
damages among themselves, in proportion to their percentages of fault OR
iii. the insolvent defendant’s share is apportioned among remaining solvent defendants and
plaintiff
d. Settling Co-D?
i. What happens when a D who is responsible for a certain portion of damages settles for less
than what they contributed?
ii. Under the old pro rata contribution scheme, based on equal shares, B and C would be given a
credit for A’s pro rata share, no matter how much A had settled for.
iii. Under the approach adopted in AMA, non-settling B and C would be given a credit only for
the dollar amount for which A actually settled, not an equal pro rata share and not an
amount represented by A’s percentage of negligence. (the non-settling Ds are liable for the
rest)
iv. Under the approach in the dissent of AMA, the non-settling defendants would pay only the
amounts represented by their proportional negligence. In effect, they would be given a
dollar credit for an amount represented by settling A’s percentage of negligence, not the
amount A had settled for. (P would lose out on what she let the other settle for)

55
STRICT LIABILITY
A. Overview
1. Imposition of liability on a party without a finding of fault (it was not negligent and was not
intentional), only need to prove that the tort occurred and that the D was responsible.
2. Purpose is deterrence of inherently dangerous activities.
3. Courts apply SL in situations where seriousness of the risk mandates making the D liable for all
potential harm to the P.
a. Injury from a wild animals owned by D or abnormally dangerous activities under taken by the D.
B. Elements
1. Duty - Duty to prevent harm from abnormally dangerous activities that one engages in
2. Breach - Requires the P to show that the D has not fulfilled his duty
3. Cause in fact – See negligence
4. Proximate Cause – See negligence
5. Damages – See negligence
C. Abnormally Dangerous Activities
1. General Principle (§519)
a. (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the
person, land or chattels of another resulting from the activity, although he has exercised the
utmost care to prevent the harm.
b. (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity
abnormally dangerous. [Proximate Cause – Madsen, mink farm]
2. Multi-factor test for determining whether an activity is abnormally dangerous: (§520)
a. (a) existence of a high degree of risk of some harm to the person, land or chattels of others;
b. (b) likelihood that the harm that results from it will be great;
c. (c) inability to eliminate the risk by the exercise of reasonable care;
d. (d) extent to which the activity is not a matter of common usage; [reciprocal risk]
i. (The activity has to be carried on “by the great mass of mankind or by many people in the
community)
e. (e) inappropriateness of the activity to the place where it is carried on; and
f. (f) extent to which its value to the community is outweighed by its dangerous attributes.
g. Need several of these factors, not all needed but only one will not do.
3. Revised elements of an ADA – (§20) Abnormally Dangerous Activities
a. (a) An actor who carries on an abnormally dangerous activity is subject to strict liability for
physical harm resulting from the activity.
b. (b) An activity is abnormally dangerous if:
i. (1) the activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors; and
ii. (2) the activity is not one of common usage.
4. Common Usage Element
a. Under this factor, if an activity is not a matter of common usage, that will be a factor in favor of
strict liability, and vice-versa.
b. Rest. 2d defines “common usage” narrowly: The activity has to be carried on “by the great mass
of mankind or by many people in the community
i. Under this definition, fewer activities would be a matter of “common usage” (not that many
activities are carried on by “the great mass of mankind, etc.), so strict liability would be
potentially broader (i.e., more activities might not be “matters of common usage”).
56
 c. Rest. 3d defines it: an activity can be considered common usage if “nearly everyone routinely does
it or expects it to have it done for him.”
i. This idea would make the transmission of gas to homes a matter of common usage even
though only a handful of people engage in this activity, so it would not be subject to strict
liability. (Again, the broader the definition of “matter of common usage” the fewer activities
are likely to found subject to strict liability under both Restatements.)
ii. It might apply to activities “that seem usual and normal,” so that activities such as railroading
and golf have been held not subject to strict liability.
5. Rationale for Strict Liability
a. May save the courts time & money in terms of litigation costs
b. Surrogate for negligence? Suspect that there is negligence but it is too difficult to prove
c. Loss distribution
d. Corrective Justice - rectification of a wrong done another, required compensation when one had
imposed an inordinate, abnormal risk of very serious harm on another. [not according to posner]
e. Risk distribution: Liability should be imposed on the party in a better position to absorb the cost
of injury (often a business) and distribute that cost to others, either via insurance or as a cost of
doing business.
f. Utilitarian and Economic: Strict liability should be imposed only when it provides safety
incentives greater than those provided by a negligence rule
6. Indiana Harbor Belt R.R. v. American Cyanamid Co.: Plaintiff sued Cyanamid in both negligence
(for negligent maintenance of the leased tanker car) and strict liability, alleging that transportation of a
toxic chemical through a metropolitan area was an abnormally dangerous activity under Rest. 2d §520
for which strict liability would be imposed under §519 to recoup the clean-up cost of acrylonitrile,
which spilled out of the railroad car.
a. The Court of Appeals, per Posner, J., reversed, holding that strict liability was inapplicable in this
case, and remanded for consideration of plaintiff’s negligence count.
i. Posner argues that it makes sense to apply a strict liability rule rather than a negligence rule
only if the former will give actors greater incentives to prevent accidents than the latter.
 However, if a risk can’t be prevented by using reasonable care, then the imposition of
strict liability may help reduce accidents by giving actors incentives to “relocate, or
reduce the scale of the activity.”
ii. Posner argues that in the instant case, greater deterrent effect cannot be achieved through strict
liability than through negligence. He reaches this conclusion through a selective analysis of
some of the six factors of §520, especially (c), “inability to eliminate the risk by the exercise
of reasonable care.”
 Posner narrows the risk to the danger of a spill from a faultily maintained tanker car lid.
That risk, he says, could have been prevented by the use of reasonable care, so factor
(c) is not met
iii. Posner argues that the relevant activity here is transporting hazardous chemicals, not
manufacturing and shipping them
 Manufacturers aren’t engaging in abnormally dangerous activities simply because their
product may be used or mishandled in a dangerous way after it leaves their premises.
 Court found the manufacturer (D) should not have to bare the cost under strict liability,
negligence is the more applicable theory - accidents that are due to a lack of care can be
prevented by taking care, and when a lack of care can be shown in court, such accidents
are adequately deterred by the threat of liability for negligence
57
 7. Proximate Cause Issues
a. Sec. 519(2) says that strict liability is limited to the kind of harm, the possibility of which makes
the activity abnormally dangerous.
b. Madsen v. East Jordan Irrigation Co. – P owned a mink farm, D was blasting near Ps farm, Ds
blasting scared the minks so much it caused them to kill a bunch of their babies and P lost profit
from that.
i. Court said that this was too remote a damage so P could not recover. The court in effect held
that the kind of harm that makes blasting abnormally dangerous is physical injury to persons
or property from debris or concussion, not mother minks killing their young because of panic
from noise.
c. Sec. 524(a) Harms that occur to plaintiff only because he or she is engaged in an abnormally
sensitive activity, and would otherwise not be affected by defendant’s activity, may be regarded as
harms not within the scope of the abnormal risk created by defendant
d. Intervening Causes
i. §522, takes the position that if defendant is engaged in an abnormally dangerous activity he or
she will not be relieved of strict liability although the harm is caused by the “unexpectable”
(unforeseeable?) intervening cause of (a) the innocent, negligent, or reckless conduct of a
third person, (b) action of an animal, or (c) operation of a force of nature. (Policy reasons) –
not accepted by all courts
 leaves open the possibility that an intentionally tortious or criminal act of a third party
might defeat liability (Yukon – act of thieves did not defeat liability
D. Defenses
1. Not absolute liability, proximate cause is a limitation and D may be able to assert affirmative defenses.
2. Rst. 2d - Assumption of risk is a complete defense (§523), as is that form of contributory negligence
that is a version of assumption of risk, i.e., “knowingly and unreasonably” subjecting oneself to the
risk of an abnormally dangerous activity (§524(2)).
3. “Mere” contributory negligence is not a defense. (§524(1)
a. An example of the latter would be wandering into a blasting area and failing to notice a prominent
sign warning of the danger, as opposed to walking through the area after a worker has shouted,
“Hey, get out of here! We’re blasting with dynamite, you idiot!”
4. Comparative Negligence
a. In Bohan v. Rizzo, the issue was whether plaintiff’s negligence could reduce his damages if
defendant were held strictly liable. New Hampshire had a statute that imposed strict liability on
dog owners for damages occasioned by their dogs. In the instant case, the dog rushed at plaintiff,
causing him to fall off his bicycle and injure himself. The court held that under the state’s
comparative fault statute, the negligence of a plaintiff could be a defense to a strict liability action
so as to reduce plaintiff’s damages. The court noted that the language of the comparative fault
statute applied to all tort actions, not merely actions founded in negligence.
i. How is the jury to compare the negligence of a plaintiff to the strict liability of a defendant for
purposes of apportioning damages?
ii. The court met this difficulty by holding that the fact finder should compare “comparative
causation” to apportion damages. Apparently the jury must still find the plaintiff guilty of
“misconduct,” i.e., “voluntarily or unreasonably” encountering “a foreseeable risk of injury of
the type he suffered.” But if the comparison is between the amount of causation each party
contributes, why must the plaintiff be at fault at all?

58
 iii. the basic point is that some courts today are holding that a plaintiff’s negligence can be a
defense to a strict liability action under a comparative negligence regime in order to reduce
plaintiff’s recovery
5. The Restatement (Third) has endorsed this position in §25, where it says that plaintiff’s recovery in a
strict liability action may be reduced in accordance with the share of “comparative responsibility”
assigned to the plaintiff. Although recognizing that “no literal comparison of the fault of the two
parties may be possible,” the Restatement goes on to say that the trier of fact should consider “the
degree of unreasonableness in the plaintiff’s conduct and the nature of the causal connections between
the conduct of the plaintiff, the conduct of the defendant, and the plaintiff’s resulting harm.”

Vicarious Liability (Form of Strict Liability)

A. Overview
1. Aka respondeat superior (“let the master answer” [in damages])
2. It allows a “master,” although faultless, to be held liable for the tort of a “servant,” usually negligence
but sometimes an intentional tort, when the servant is acting “within the scope of employment.”
3. Liability for the fault of another
4. In most cases, this is so obvious that it is not disputed by the Ds.
5. This varies according to whether the employee is an independent contractor and if they were acting
within the scope of their employment
6. Can also sue the employer for their direct negligence: if the employer hires an incompetent employee,
negligence supervisions (employer knows or should know that he is committing torts) or the employer
directly orders the employee to committee a tort
B. Application
1. To bring such an action, a plaintiff must prove that the servant committed a tort.
2. Two questions must be answered:
a. (1) Was the tortfeasor a servant (employee) or an independent contractor, and
b. (2) if a servant, was he or she acting within the scope of employment?
i. The former question may be important since the general rule (subject to several exceptions) is
that one who hires an independent contractor is not liable for the torts of such contractor.
C. Determining independent contractor or employee?
1. General rule: An employer is not liable for the torts of an independent contractor.
2. Independent contractor: one who, by virtue of his contract, possess independence in the manner and
method of performing the work he has contracted to perform for the other party to the K.
i. those who have the “right to dictate and control the manner, means [or method], and details”
of performing the job. They are “usually persons who are perceived to be operating their own
business and hence not subject to the employer’s right of control over the manner, means, and
details of the work.”
b. RULE: The IC has to be an apparent or ostensible agent or is hired to perform nondelegable
duties or an activity so intrinsically dangerous that the employer should realize it involves a
peculiar risk of harm.
c. Ask: Whether the party for whom the work was to be performed had the right to dictate and
control the manner, means and details of performing the service is the test to be applied?
i. If yes -> Employer is liable, if not -> Employee is liable
3. Some factors courts may look at to determine whether the person employed is a servant
(employee) or independent contractor include:
a. whether by agreement the employer may determine the details of the work,
59
 b. whether the one employed is engaged in a distinct business or occupation, and the
special skills required of him or her,
c. who supplies the place and instrumentalities of the work,
d. the length of time the employment is to last,
e. the method of payment (periodic wages or lump sum?),
f. may the person employed fire his or her own employees?
4. Exceptions:
a. Work involving an inherent danger (e.g., blasting)
i. These activities involve some “special danger” “inherent in or normal to the work,” which
requires the worker to take reasonable precautions against the dangers. This category
overlaps to a certain extent with activities deemed “abnormally dangerous” for the purpose of
imposing strict liability on the one engaging in the activity, but the category may be broader—
including, for example, use of strong acids, acetylene welding torches, or high voltage electric
lines.
b. Work involving some special risk in the particular job, not necessarily inherent (e.g, hauling
giant logs on the highway), and
i. activities that are not necessarily “inherently dangerous,” but where there is a peculiar risk on
the facts of the case requiring special precautions—for example, using cranes in construction
that may drop very heavy girders, demolishing buildings that may fall on adjacent buildings,
or hauling heavy logs that may strike another vehicle.
c. Non-delegable duties (see, Colmenares)
i. These are duties that are of such importance to the public in general or particular parties that
courts feel the duty of reasonable care may not be shifted from the employer to the contractor.
As said in Colmenares, there are “no set criteria” for determining whether a duty is non-
delegable. Others might include the duty not to withdraw lateral support to adjoining property
when doing excavation work on one’s own, the duty not to obstruct public highways, and the
duty to keep premises reasonably safe for business invitees.
D. Determining which acts fall under scope of employment?
1. The master is liable for the tort of his employee if the employee was acting within the scope of his
employment
2. Motive Test: whether the servant’s conduct “was actuated, at least in part, by a purpose to serve the
master”?
a. (1) Conduct of a servant is within the scope of employment if, but only if:
i. (a) it is of the kind he is employed to perform;
ii. (b) it occurs substantially within the authorized time and space limits;
iii. (c) it is actuated, at least in part, by a purpose to serve the master, and
iv. (d) if force is intentionally used by the servant against another, the use of force is not
unexpectable by the master.
b. (2) Conduct of a servant is not within the scope of employment if it is different in kind from that
authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to
serve the master.
3. Policy Test: whether the imposition of vicarious liability under the facts of a given case would serve the
policies underlying vicarious liability? [used by the D.C in Bushey]
a. The judge identified two such purposes:
i. (a) “more efficient allocation of resources” (would vicarious liability induce the master to
take steps to prevent further accidents), and

60
 ii. (b) “loss spreading” (placing liability on the party with greater resources (the “deep pocket”),
who can then spread the loss through insurance or price increases).
4. Foreseeability Test: Was the servant’s tort “characteristic of” the activities of the business (or not too
“unforeseeable”)?
a. Given the totality of the circumstances surrounding an employer’s employees, if it is reasonably
foreseeable that the employees will cause some type of harm, then the type of harm that actually
occurs is irrelevant. The employer will be held liable for the harm done by the employee.
i. In the context of intentional torts - whether the servant’s conduct was “so unusual or startling”
that it should not be fairly attributed to the master as a cost of doing business.
5. Control Test (disfavored): whether the master had “control” or the “right of control” of the conduct of
the servant at the time he or she committed the tort?
a. This test has fallen into disfavor, largely because of its circularity: Q: When is the servant acting
within the scope of employment? A: When the master has control of the servant’s conduct. Q:
When does the master have control of the servant’s conduct? A: When the servant is acting within
the scope of employment.
6. Intentional torts are usually outside the scope of employment, unless they are committed in furtherance
of the employer’s business
a. The employer forbidding that conduct has no bearing on liability.
b. A principal is not chargeable for acts by its agents which only are intended to further the agent’s
own interests. (Usually sexual misconduct, or something purely personal in nature)
7. Ira S. Bushey & Sons, Inc. v. United States: A drunk sailor [U.S Coast Guard] turned wheels on the
drydock wall [where a vessel was being overhauled in a floating drydock], opening valves that
controlled flooding of the tanks and caused the ship to lean to one side, slide off the blocks and fall
against the wall of the drydock. This caused parts of the dry dock and the ship partially to sink
a. An employer will be held liable under respondeat superior (let the superior answer) if the actions
of the employee arise out of the course of his employment.
b. defendant was properly held liable for damages caused to the drydock where it was reasonably
foreseeable that a crewmember might cause some damage, whether negligently or intentionally. It
was held immaterial that the employee's specific acts were not foreseen.
8. Functions of Vicarious Liability
a. Redress of social grievances
b. Loss Distribution
c. Deterrence

61
62