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OUTLINE DETAILS:
School: Harvard Law School
Course: Torts
Year: Spring, 2005
Professor: Douglas A. Kysar
Text: The Torts Process, 3rd Edition
Text Authors: James A. Henderson, Richard N. Pearson, John A. Siliciano

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Torts Outline – Professor Douglas A. Kysar – Harvard Law School - Spring 2005

Doctrine:

I. Intentional Torts
1. Battery: harmful or offensive contact w/ another, resulting (even indirectly) from intention to cause that
contact, or from intention to put another in imminent apprehension of harmful or offensive contact
a. Physical Contact Requirement
i.Physical Contact w/ P
1. Must be some physical contact w/ P, or at least something that is in contact w/ P
2. Ordinarily, this is direct physical contact between P and D
ii.or object set in motion by D
1. May also be some object set in motion by D, such as weapon, or some force such as
electricity
2. Force need not literally be set in motion by D, as long as the contact results from D’s
intentions
3. e.g., Garratt v. Dailey (young boy pulls chair out from underneath old woman… boy
set in motion the force)
iii.What constitutes contact?
1. Direct contact between D and P’s body
2. Direct harmful contact between P’s body and something else (e.g. the ground;
Commonwealth v. Stratton – contact between P and poisoned fruit)
3. Direct contact with something closely associated with P’s person (e.g. clothes)
iv.The eggshell skull rule: If you commit an unlawful act, then you are liable for the
consequences of that act, even if the ONE person you tapped on the head happens to be THE
person in the world w/an eggshell skull (consequences not foreseeable)
1. note: this rule requires an unlawful act and only applies to battery
b. Vosburg v. Putney
i.Facts: Putney lightly kicks Vosburg in the classroom; Vos ultimately develops an infection
on leg.
ii.Rule of Law: P must show either D had unlawful intention to produce harm or that he
committed an unlawful act
1. note: that harmful or offensive contact must result in order for there to be battery
iii.Intent:
1. irrelevant that Putney did not intend to harm (as jury found)
2. if the intended act is unlawful then the intention to commit it must also be unlawful.
iv.Unlawful Determination:
1. flexible standard – look to context, look for implied license (cf. playground vs
classroom)
2. Unlawful contact if it is Harmful (§13) or Offensive (§18)
a. Offensive: if it offends the reasonable sense of personal dignity
b. Harmful: counts if a) there is intent to cause harmful contact and b) harmful
contact results, even indirectly
i.Hypo: P trying to avoid harmful contact injures himself – battery.
ii.note: intent to harm can include imminent apprehension of such
contact
c. Prima Facie Case: You need to establish
1. An act by defendant,
2. with intent to inflict harmful or offensive touching,
3. a harmful or offensive touching,
 4. and causation.
ii.Act by defendant (Need Volitional Movement)
iii.Intent
1. D must either desire to bring about harmful or offensive contact, or act w/
substantial certainty that contact will result from his actions (Garratt), but intent
need not be malicious
2. Restatement 29 §13 (a) - Intent
a. The act is done with the intention of bringing about a harmful or offensive
contact or an apprehension thereof to the other or a third person
3. Not sufficient for D to know that his action merely risks harmful or offensive contact
if there is no intent to cause such contact (Need either desire or substantial certainty)
4. Substantial Certainty
a. Garratt v. Dailey
i.FACT SUMMARY: Brian Dailey (D) pulled a chair out from under
Ruth Garratt (P) as she began to sit down in it.
ii.CONCISE RULE OF LAW: The intent necessary for the commission
of a battery is present when the person acts, knowing, with substantial
certainty, that the harmful contact will occur.
1. issue: Did D know (with substantial certainty) that harmful
contact would occur? (he is 5 ½)
2. hold: yes. no intent to harm but substantial certainty that harm
would occur supplies the needed intent. (constructive intent)
iii.Constructive or Knowledge-Based Intent: if you know something
with substantial certainty (i.e. that a consequence will follow from
act) then you intend that consequence
1. objection: even though we know X is substantially certain to
result we still may not desire it (e.g. utilitarian problems –
what about the terrorist who will blow up the world unless you
shoot your friend?)
2. this allows D to be held responsible for an act that he didn’t
know would happen and didn’t intend to happen.
b. Substantial certainty must be primary motivation
i.Substantial knowledge may be applied to an intentional battery (Must
be primary motivation)
ii.Car exploding hypo: manufacturer may have substantial knowledge
someone might get hurt, but it is not their primary motivation.
1. doesn’t seem like a battery…
2. but c.f. Fenway shooter – seems like a battery. Where do we
draw the line of substantial certainty?
iii.Battery requires particularly identifiable victims. We’re not going to
use the substantially certain knowledge doctrine in a case where we’re
linking an action to a broad statistical relationship. Can’t have a
general knowledge, must be specific.
1. this is what distinguishes Garrat from other exs – Garrat has a
particularly identifiable victim.
c. What is really going on is that courts evaluate the benefit of the action in
question to society.
i.Fenway shooter produces no social benefit, but production of cars (or
cigs.) does.
ii.look to the primary purpose of the activity
5. Intent standard is subjective à did this particular D have requisite state of mind?
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 a. note: determining subjective intent is very difficult to do.
6. Transferred Intent
a. D’s conduct too blameworthy to escape liability just b/c wrong victim
harmed
b. Individual who actually suffers contact need not be person whom D intended
to harm or offend
7. Motives (Malice/Intent to harm) are immaterial to establishing the prima facie
test
a. If there is malice, might be liable for punitive damages
b. Vosburg: doesn’t matter that D did not have subjective intent to harm; all that
matters is that it was an intentional act that was offensive or unlawful.
iv.Harmful or Offensive Touching/Contact
1. see also Vosburg (above)
2. Harmful Contact: Touching is harmful if it injures, disfigures, impairs, or causes
pain to any bodily organ or function.
a. Rstmt 2nd, §7 & §15
i.Loss or detriment in fact of any kind to a person resulting from any
cause; bodily harm which is a physical impairment
3. Offensive Contact: A touching is offensive if it would offend a reasonable
person’s sense of dignity.
a. Rstmt 2nd, §19 (Objective test)
i.Offends a reasonable sense of personal dignity
b. Fisher v. Carrousel
i.Facts: Fisher (P), while in line at a buffet luncheon, had his plate
snatched from his hands by an employee of the motor hotel (D), who
also insulted him.
ii.Rule of Law: A battery may be committed even though there is no
physical contact with the person's body, so long as there is contact
with something that is attached to or closely identified with the body
(Offensive in nature).
iii.note:
1. malicious intent found but that is not required; knowledge of
offensive contact is enough.
2. offending dignity is not enough; there must be some contact
for battery.
a. if no contact look to IIED section
c. Leichtman v. WLW Jacor
i.Fact Summary: After Cunningham (D) encouraged another talk show
host to blow cigar smoke in Leichtman's (P) face, Leichtman (P), an
anti-smoking advocate, filed a battery suit against Cunningham (D)
and radio station WLW (D).
ii.Rule of Law: For purposes of establishing liability for battery, contact
that is offensive to a reasonable sense of personal dignity is offensive
contact.
1. Intentionally blowing cigarette smoke can constitute battery,
no matter how trivial the incident.
2. Don’t need to consider whether the substantial certainty prong
of intent applies, b/c D committed a deliberate act.
3. Don’t need to consider glass cage defense b/c P alleges D
directly blew smoke into his face
v.Causation
 1. Defendant’s conduct must directly or indirectly bring (more flexible than
negligence) about the harm
vi.Lack of Consent
1. Implied Consent v. Express Consent
a. “Unlawful” is whether the touching is permissible and/or accepted by the
social norms in the context
i.Implied License—if the kick occurred on a playground, the conditions
and norms are different than in a classroom. Subjective determination
from a reasonable persons perspective.
b. The idea of intent is not intent to harm, but intent to cause some action which
is not consented to by the victim.
c. Hypo: If a teacher ordered Vosburg onto the playground, does the implied
consent of the playground still apply? (tests outer limits of implied consent)
d. In the absence of an implied license, any touch at all might be battery.
i.Look to social acceptability of touch
2. ex: Hackbart v. Bengals – Interaction between Tort Law and Custom
a. Rule of Law: Custom among the players will determine what is actually
actionable as battery
i.Call in experts. Custom itself will define contours of appropriate
behavior between the players and determine what is beyond the pale.
ii.tort law is just there to back it up.
vii.Damages
1. Actual damages not necessary
2. Even if no actual harm is suffered, as in the case of some offensive touching, the
court will award at least nominal damages.
2. Assault
a. §21 (Restatement Second) Assault if D intends to cause harmful or offensive contact, or an
imminent apprehension of such contact and does put P in such imminent apprehension
i.Fear not required, only anticipation of such contact; protect P’s mental peace (Grandma can
assault a linebacker)
ii.No assault if apprehension/fear is created but that is not the intent of D
iii.Similar requirements as battery, except physical contact requirement not present; most
battery will be assault except when P is unaware of the impeding contact (e.g. Hackbart)
b. Two Key Issues: Imminent Harm and Extra-Sensitive P.
i.Harm threatened must be “imminent” à immediate in time, close in space, actual not
potential
ii.Extra-sensitive P – no liability for making threats that would not satisfy requirements for
assault if made to typical person, unless D knows of P’s extra-sensitivity
c. Prima Facie Elements
i.Act by Defendant: Act must be a volitional movement of the body. Words alone are
generally insufficient except where surrounding circumstances force P to rely on mere
words
ii.Intent: Same as battery
1. He acts intending to cause a harmful or offensive contact w/the person of the
other or a third person, or an imminent apprehension of such a contact
iii.Apprehension (As opposed to contact)
1. Plaintiff must be placed in reasonable apprehension of imminent harmful or
offensive touching of P’s person and must be subjectively aware of the threat at the
time thereof.
2.
iv.Causation: P’s apprehension must be legally caused by defendant’s act or something
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 defendant set in motion.
d. Restatement Second, § 21: Assault
i.An actor is subjected to liability to another for assault if
1. He acts intending to cause a harmful or offensive contact w/the person of the other or
a third person, or an imminent apprehension of such a contact, and the other is
thereby put in such imminent apprehension.
a. An action which is not done w/the intention stated in Subsection (1,a) does
not make the actor liable to the other for an apprehension caused thereby
although the act involves an unreasonable risk of causing it, and, therefore,
would be negligent or reckless if the risk threatened bodily harm
e. Read v. Coker Standard:
i.An assault is committed when there is a threat of violence exhibiting an intention to assault
(i.e., do physical violence to another), coupled with a present ability to carry the threat to
execution.
ii.note: doesn’t require an actual attempt or striking.
f. Beach v. Hancock Standard (Apparent Ability/Unloaded Gun)
i.Fact Summary: Hancock (D) aimed a gun at Beach (P) who was 50ft away, and snapped the
trigger.
ii.Rule of Law: An assault is an unlawful attempt, coupled with an apparent present ability, to
place another in apprehension of imminent harm.
3. False Imprisonment
a. Restatement (Second) of Torts, § 35 (False imprisonment)
i.He acts intending to confine the other or a third person w/in boundaries fixed by the actor,
and
ii.His act directly or indirectly results in such a confinement of the other, and
iii.The other is conscious of the confinement or is harmed by it
iv.An act which is not done w/the intention stated in subsection (1, a) does not make the actor
liable to the other for a merely transitory or otherwise harmless confinement, although the
act involves an unreasonable risk of imposing it, and, therefore, would be negligent or
reckless if the risk threatened bodily harm
b. Notes:
i.not imprisonment if there is consent.
ii.May be effected by words alone, acts alone, or both.
iii.Unjustified restriction of the P’s freedom of movement, not harmful or offensive contact.
iv.Confinement must be total.
v.Plaintiff must be aware of the confinement, or must suffer some actual harm
1. f P is locked in a room but doesn’t know she is locked in, it most likely isn’t false
imprisonment
2. if P is unconscious but contracts scurvy (harm) then it is false imprisonment
c. Intent: This is measured by the desire or belief in substantial certainty – Intent to confine is
required
i.without intent D is not liable for merely transitory or otherwise harmless confinement.
d. Confinement: Plaintiff must be restricted to a limited area without knowledge of reasonable means
of escape and must be aware of the confinement at the time thereof or else be harmed by the
confinement.
i.Plaintiff must be held within certain limits (Not prevented from entering certain places)
ii.Being confined to a country is not false imprisonment.
e. Cause of confinement (Gilbert’s)
i.Physical force exercised against plaintiff or a member of plaintiff’s family
1. Physical force is not necessary if there is a threat of force.
ii.Threats of immediate harm
 1. Threats: Defendant threatens to use force if P tries to escape
iii.Actual or apparent physical barriers to escape (Includes refusing to release plaintiff
when under a duty to do so)
iv.Assertion of legal authority and P’s submission thereto.
1. D’s assertion that he has the legal authority to confine P. True even if D doesn’t in
fact have the legal authority, so long as P reasonably believes that D does, or is in
doubt about whether D does. (ex: citizens arrest- most states pass laws allowing
detention if reasonable cause for a reasonable amount of time - till an officer arrives)
f. Whittaker v. Stanford
i.Facts: Sanford (D), leader of a religious sect, convinced Whittaker (P), a sect member, to
return to the United States from Syria aboard the sect's yacht, but upon arrival in the United
States, would not let her disembark.
ii.Rule of Law: To commit a false imprisonment, it is not necessary that the tortfeasor actually
apply physical force to the person of the plaintiff, but only that plaintiff be physically
constrained.
g. Rougeau v. Firestone
i.Facts: Rougeau (P) was asked to wait in his employer's guardhouse during an investigation.
He sued the employer for false imprisonment when it was determined he had nothing to do
with the suspected theft.
ii.Rule of Law: False imprisonment is the intentional confinement of another within
boundaries set by the actor; and P must not consent to this.
iii.No imprisonment because P was never restrained; never revealed to anyone that he didn’t
want to stay therefore gave implied consent.
h. Sindle v. New York City
i.Facts: Sindle (P), a 14-year-old boy, was injured when he fell under the wheels of an
Authority (D) school bus when he attempted to climb out after the bus driver locked the
doors to prevent vandals from escaping.
ii.Rule of Law: A person falsely imprisoned is not relieved of the duty of reasonable care for
his own safety in extricating himself from the unlawful detention.
iii.Rationale:
1. Key here is Restatement 35: Does not make the actor liable to the other for a merely
transitory or otherwise harmless confinement
2. also, if there is reasonable justification to engage in the confinement then look to see
whether the execution of it is reasonable.
i. Coblyn v. Kennedy’s
i.Facts: Coblyn (P) was detained by an employee of Kennedy's, Inc. (D) who suspected
Coblyn (P) of shop lifting; employee doesn’t identify himself.
ii.Rules of Law:
1. (1) If a man is restrained of his personal liberty by fear of a personal difficulty, it
amounts to false imprisonment.
a. man didn’t object but he was scared; felt he had no alternative.
2. (2) If a shopkeeper has reasonable grounds to believe a person has committed or is
attempting to commit larceny of goods for sale on the premises he may detain that
person in a reasonable manner for a reasonable length of time.
a. use an objective standard (‘prudent and cautious man’) for what is reasonable
grounds for detention.
4. Intentional Infliction of Emotional Distress (IIED) – outrageous conduct causing severe emotional
distress (§46)
a. IIED: Intentional or reckless infliction, by extreme and outrageous conduct, of severe
emotional or mental distress even in the absence of physical harm.
i.Not battery or assault but D still acts in manner intended to severely interfere with P’s peace
of mind
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 ii.“Extreme outrageousness” required – prevents fraudulent claims, doesn’t expand liability
too much
b. Prima Facie Case: Involves extreme and outrageous conduct by defendant, with intent to cause
severe emotional distress, causation, and severe emotional distress
1. Act by Defendant: Defendant’s act must be extreme and outrageous. Words alone
may suffice, but simple assaults are not actionable. The courts will consider the
totality of the circumstances
a. Exceptions: Common carriers and public utilities are held to stricter standard
b. D’s liability also includes emotional distress of members of the intended
victim’s family if their presence was known to D.
2. Intent: D must intend to cause severe emotional distress. However, reckless conduct
also suffices (i.e. where D disregards a high probability that his act will cause
emotional distress), and intent is inferred where D knows P is particularly sensitive.
a. Note: that the doctrine of transferred intent is not applicable here.
3. Causation: Under the early view, demonstrable physical injuries were required, but
under the modern approach, distress alone suffices – outrageousness of the conduct
ensures reliability of the claim.
4. Severe emotional distress: The distress must be more than a reasonable person
could be expected to endure.
c. IIED Extra Notes
i.Outrageous conduct - extreme and outrageous conduct; conduct that the average person is
not, in our friction-filled world, expected to live with. (e.g. people insult others all the time,
not intentional infliction of mental upset). Consider conduct that is normally not outrageous,
but this conduct can be modified slightly to become outrageous: (normally not outrageous
conduct becomes outrageous)
1. Continuous (e.g. insulting language; day in, day out)
2. The type of plaintiff (e.g. D is insulting a very young child): typical examples are
elders, young children, and pregnant women.
3. The type of defendant: common carriers and innkeepers, who are held to higher
standards of conduct. (e.g. bus driver insults you)
a. COMMON MISTAKE: it is not enough to find this type of D; you also need
to find the right type of P, a guest, a passenger. (Under the care of D).
ii.Damage - IIED is unique
1. Don't have to show damage for assault or battery
2. You must show substantial emotional distress (e.g. a few sleepless nights is not
substantial emotional distress)
3. but you don’t need to necessarily have a physical manifestation of the emotional
distress (See State Rubbish)
iii.Courts usually turn to this tort when you cannot make out another type of tort. This is
particularly true with almost-battery.
d. State Rubbish v. Siliznoff
i.Facts: The Association (D) threatened to beat up Siliznoff (P), destroy his truck, or force
him out of business unless he joined the Association (D) and paid dues to it.
ii.Rule of Law: A cause of action is established when it is shown that one, in the absence of
any privilege, intentionally subjects another to the mental suffering incident to serious
threats to his physical well-being, whether or not the threats are made under such
circumstances as to constitute a technical assault.
5. Summary of Defenses for Intentional Torts: Consent, self-defense, defense of others, defense of
property, retaking of land, recapture of chattels, necessity, discipline, detention for investigation, and legal
authority.
a. note: Contributory negligence is NOT a defense of intentional torts.
II. Privileges/Defenses
1. Consent
a. Most courts treat consent as an affirmative defense; a few require plaintiff to show lack of consent
as part of the prima facie case.
b. Restatement 2d § 891 (1): “Consent is willingness for conduct to occur. It…need not be
communicated to [D]”
c. Different Default views of Consent that a court could employ:
i.Consent unless there is a physical struggle
ii.Consent unless there is a verbal “no”
iii.Consent unless actions suggest “no”
iv.No consent unless actions suggest “yes”
v.No consent unless there is a verbal “yes”
vi.No consent ever
d. Gilbert’s on Consent
i.Types of Consent
1. Actual (express) consent
2. Apparent consent – What the reasonable person would infer from custom or from
P’s conduct
3. Consent implied by law – If necessary to save a life or other important interest and
a. P is unconscious or otherwise able to consider the matter
b. An immediate decision is necessary
c. There is no reason to believe P would withhold consent if able
d. A reasonable person in P’s position would consent
e. Manifestations of Consent –
1. Consent may be implied or expressed;
a. implied-in-fact: person acts such that a reasonable person would believe that
he consented to invasion of his rights;
b. implied-in-law: conditions are such that privilege for defendant to act without
liability is created, as when a doctor treats an unconscious person.
2. Consent, however, cannot be obtained by fraud or duress, nor can it be obtained from
someone w/o capacity to give consent.
ii.Silence or Inaction as Consent - silence or inaction may be consent, depending on what a
reasonable person would think under the circumstances.
iii.Failure to object allows person to infer consent - you’re deemed to consent if you manifest
consent outwardly, regardless of inward feelings. (O'Brien v. Cunard - Woman receives shot
but denies consent) One is deemed to consent if he/she manifests consent outwardly. One
need not verbally communicate consent. D may infer consent from P's nonobjection.
1. Note: D bears burden of proving consent by P.
iv.Informed Consent - Consent must be voluntary and informed. Consent cannot be obtained
where there is a mistake of fact by P, a mistake of law by P, fraud, or duress;
1. courts are split on whether individuals can consent to unlawful acts.
2. Note: one must have the mental capacity to consent.
v.Statutory Rape
1. MINORITY RULE (NY)
a. Barton v. Bee Line - 15-year-old alleges rape; D claims consent (Minority)
i.Holding: a female under the age of eighteen has no civil cause of
action against a male with whom she willingly has intercourse, if she
knows the nature and quality of her act.
ii.Any matter of consent to sexual relations must be examined in light
of history of violent sexual acts
iii.State of emotional development of 14 yr old is just not that of the
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 18yr old. Historical reality – men in every era have sought through
force or coercive means to attain sex.
iv.public policy is to prevent promiscuity, but here award to P might
encourage seduction if she knew 'nature and quality of her act.'
2. MAJORITY RULE: Most courts allow for recovery even if there is consent of a
minor.
a. Most states: consent to a criminal act is totally irrelevant in civil cases;
consent doesn’t constitute privilege, victims still allowed to sue for damages.
vi.Medical Procedures - where doctor can ascertain options, and no emergency exists, a
patient should be informed of alternative treatment and given opportunity to decide.
1. Reasonable rule: Where a doctor can ascertain in advance of an operation
alternative situations and no immediate emergency exists, patient should be
informed of alternative possibilities, given a chance to decide
a. Bang v. Charles T Miller Hospital
i.Facts: A doctor (D) performed a prostate operation on Bang (P) and,
during this operation he severed Bang's (P) spermatic cords.
ii.P consented to operation, but question if consent to cut his spermatic
cords should go to the jury.
iii.Rule: In non-emergency contexts, consent must be informed. Allows
an exception for emergencies
iv.Duty of disclosure: patient should be told both expected outcome of
procedure and expected result if procedure is not performed.
2. Non-Emergency Situations Where Consent Cannot Be Obtained (Need
conditions proximate)
a. In absence of proof against partial consent, the implied consent is presumed.
i.Kennedy v. Parrot
1. Facts: – ovaries— During an appendectomy doctor punctures
ovarian cysts not authorized earlier
b. Where patient cannot give consent, and no other person nearby who is
authorized to give consent, general consent is given to the doctor to remedy
conditions proximate to the original incision which, in the doctor’s
professional judgment, should be remedied at the time of the procedure.
c. Limitations:
i.negligence still applies
ii.explicit ‘no’ = no implied consent
iii.if local anesthetic, not general, then no implied consent (can ask)
iv.if husband outside door, consent not implied
d. Clash between technology/efficiency and autonomy/privacy
e. Ask how urgent, how necessary, how foreseeable (sperm cords v. internal
injury undetected), what would a reasonable doctor have done. Murky area.
3. Emergency - Presumption of no consent unless certain aspects are satisfied
a. In emergency, where person or family member cannot give consent and
immediate decision is necessary, doctor can extend authorization to operate
w/ implied-in-law consent unless he has reason to believe patient would
object.
4. Rstmt 2nd, §892D. Emergency action without consent.
a. Conduct that injures another does not make the actor liable to the other, even
though the other has not consented to it if:
i.a) an emergency makes it (apparently) necessary, in order to prevent
harm to the other, to act before you can obtain consent from the
other / a proxy, AND
 ii.b) the actor has no reason to believe that the other, if given the
opportunity to consent, would decline.
5. Duty of Disclosure
a. Reasonable/Objective Patient Standard: Initial duty is to disclose any risk
that a reasonable person would attach weight to in making a decision
i.Not fully up to doctor, nor should there be full disclosure.
ii.In order for doctor to be held liable for failure to disclose under this
standard, the patient must show that additional disclosure would have
led to a different decision, not just that it was significant.
b. Canterbury v. Spence
i.Facts: Young man with back pain who had back surgery performed,
but then fell out of bed and paralysis set in. 1% chance of paralysis
from surgery.
ii.Rule: Initial duty is to disclose any risk that a reasonable person
would attach weight to in making a decision. Have to show that idea
that the objective patient wouldn’t have submitted to the procedure
had the disclosure been made.
iii.Reasonable Doctor Standard (court does not adopt this): Hinges the
duty of disclosure on the customs of practitioners
6. Exceeding Scope:
a. Even if P does consent to an invitation to her interests, D will not be
privileged if he goes substantially beyond the scope of that consent.
i.Ex: consent to operation on right side but Dr. does both sides while
unconscious. Left side actionable for battery.
b. However, an emergency may justify extending the surgery beyond that which
was consented to.
vii.Sports - Participation in violent activity--general roughness of the game--does not imply
consent to all contact whatsoever.
1. Where harm is against the rules (and expected contact) there is no implied consent.
(Hackbart v. Cincinnati Bengals - football player is injured after whistle)
viii.Minors and Consent
1. Hudson v. Craft
a. Facts: Illegal prize fight involving minor.
b. Consent is not a defense. No consent may actually harm minors (e.g.
incentive to violate statutes designed to protect).
ix.Consent checklist
1. Does plaintiff have capacity to consent (e.g. children and mental incompetents)?
2. Was the consent expressly given or is to be implied? Were words used?
a. Apparent implied consent can be due to (1) custom and usage or (2) plaintiff's
conduct.
i.Game of touch football: custom and usage of game of football
implies consent to being tackled.
ii.By standing in the line where vaccinations are being handed out, one
can assume consent
3. Look out for facts where consent was given b/c of
a. Mistake
b. Coercion
c. Fraud (representation)
4. Did defendant exceed the boundaries of the consent (e.g. kicking someone in the
groin after tackling them on the football field?
2. Insurance
a. First party insurance (Insurance for one’s property)
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 i.Two common examples: fire (one’s property is insured against fire) and collision (one’s car
is insured against damage in a collision)
ii.Insured party is the first and only party besides the insurer; the insured’s rights do not
depend on any other person and the insured deals directly with his or her own insurance
company, not the insurance company for another person.
iii.Another common feature of these policies: insured is entitled to recover upon proof of loss
covered by the policy; it is not necessary to show fault on the part of anyone. Even the
insured’s own fault, short of intentional damage to own property, is irrelevant.
b. Subrogation (a feature of some, but not all first party insurance)
i.Insurer “stands in the shoes” of the insured and takes the insured’s claim against the
tortfeasor
c. Liability Insurance (Protect loss through legal liability)
i.Example:
1. if an industry’s factory burned down, it would need first party fire insurance to
protect against loss.
2. If the industry negligently injured a worker and were required to pay a judgment in
his favor, it would need liability insurance to protect against loss
ii.Liability Insurance as Second-Party Insurance
1. We have shifted to a more “social” view of insurance as a device for assisting the
injured which has consequences in practice; e.g. the insurer takes charge of
investigating and defending the claim.
2. Injured person must deal not with his own insurer but with the insurer for the alleged
torttfeasor
d. Liability Insurer’s Duties
i.Depend on K between insurer and insured
ii.Policy/coverage defenses may be available (i.e. saying “our policy doesn’t cover this, you’re
screwed!”
iii.Usually, though, the insurer’s defense is on the merits; asserting that insured defendant was
not negligent or injured plaintiff was guilty of contributory negligence, etc.
1. Two main obligations
a. Pay judgments against the insured
b. Defend the insured
i.Goes with the insurer’s right to control investigation, negotiation,
settlement of claim
ii.Insurer seems like the defendant (the one with whom plaintiff must
deal) – stands in D’s shoes
e. State Farm v. SS & GW
i.Issue of K—pre-Vosburg definition of battery where the actor has to intend the HARM,
not just the ACT--did G.W. intend harm? If intended harm, then State Farm doesn’t pay
(clause in K which excludes coverage for intentional injuries).
ii.G.W.’s settlement for intentional tort did not throw out claim that he did not intend harm
under policy terms since policy terms were pre-Vosburg (battery only if intention to commit
a harm), not post-V (battery if intention to commit an unlawful act). Issue of Consent—post-
Vosburg—liable in tort for committing an unlawful act
1. Majority—If G.W. did not know he could transmit herpes, then her consent is valid.
2. Dissent—G.W. not disclosing that he had herpes vitiated her consent to sex.
3. To determine liability based on consent, questions as to what background liability
should be (no liability without protection, without sores, etc) and if parties can opt
out (disclosure, consent, etc.).
4. Influence of insurance on tort claims
a. G.W.’s catch 22: tort suit (unlawful act) is the strongest if G.W. says he
 disclosed
i.This would make his insurance coverage the weakest (intend to harm)
b. Under-litigation--S.S. wants compensation for her injury, but does not want
to press so hard so they find intentional tort—if so, the insurer ($) wouldn’t
have to pay
c. Strange phenomenon of would-be defendants rooting for the majority that
“excuses” the behavior
3. Workers Compensation
a. General Notes
i.On liability dimension, these statutes established strict liability for employers for on-the-job
injuries
ii.On mutability dimension, workers’ comp became essentially mandatory
iii.On damages dimension, damages were lowered below what they would be in a typical tort
case
1. Pain and suffering unavailable; scheduled amounts for losses
2. Ease of administration, no need to determine fault
3. Deal struck between capital and labor—in exchange for ease of liability workers
would give up some claims
b. Intentional torts exclusions to workers’ comp (some states)
i.Van Fossen
1. Employer subjected employee to hazardous conditions
2. Idea is that the courts are willing to go along only so far with the bargain struck
between capital and labor
3. When they see conduct with a certain level of liability, they want to take it out of
workers’ comp and make the full range of tort remedies available
ii.Vicarious Liability/Respondeat superior
1. Responsibility of employers for their workers’ torts
2. There must be a master-servant relationship (servant’s activities controlled by mater)
3. Servant must also have been acting in scope of relationship when tort occurred)
4. Difficult to prove (Intentional Torts)
c. Kerans v. Porter Paint Co. (Sex Harassment)
i.Sexual harassment not bound to the Worker Compensation scheme
1. Exclusivity-of-remedy (employer’s not liable for workplace injuries.) Intended to
cover physical harms, not psychological harms. This was later amended to include
psychological injury only if arising from a physical injury.
a. Ryan: it was found that a non-physical injury giving rise to physical
consequences is an injury within workers’ comp
2. Court in this case says that certain purely psychological injuries such as sexual
harassment are not precluded by the exclusivity provisions. Court says that this is
outside the purview of workers compensation, meaning that it cleans the slate for
traditional tort analysis.
d. Tort liability against the employer
i.At Common Law: Employer was only liable if employer had inferred intent to harm
employee
ii.Under workers’ comp statutes, employers are strictly liable and the defenses of contributory
negligence and assumed risk are abolished
iii.However, the employer’s liability is limited to fixed amounts for certain injuries and an
administrative agency hears most disputed claims
iv.As well, most workers’ comp statute provide that workers’ comp is the only remedy
1. Thus, with few exceptions, there is no tort action against the employer
2. An employee injured by a third person, though, is free to bring a tort suit against that
third person
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 v.Catch 22:
1. If intentional tort → exception to W.C. → but hard to prove employer (deep pockets)
liable (vicarious difficult to prove; direct difficult with unauthorized actions).
2. If negligent → W.C. exclusive remedy applied → no damages because none are
recognized.
vi.New, additional exception from Kerans
1. If employer retains employee with known past history of sexual harassment,
employer may be liable for employee’s sexual harassment claim even if it was not a
part of further the employer’s business.
2. Case-by-case determination if adequate steps were taken by employer to provide safe
work environment (P friendly)
a. The majority says that the legislature was simply not thinking of these kinds
of harms when it drafted workers compensation statutes.
e. Manipulations of tort doctrine
i.P friendly moves to develop alternative definitions of liability (Kerans); redefinition of what
harm occurred (State Farm)—driving forces may be Ps wanting $, judges actions
(efficiency).
4. Self-Defense and Defense of Others
a. Self-Defense
i.If a person reasonably and honestly perceives an immediate assault/life in danger, even if
mistaken, he/she may use necessary force even if it is likely to cause serious injury or death
in self-defense.
ii.Degree of Force:
1. Equivalence Rule: Only the degree of force necessary to prevent the threatened
harm may be used. If D uses more force than necessary, he will be liable for damage
caused by the excess. If there is a threat of death or serious bodily harm, then the D
is privileged to defend himself or another w/ an equivalent amount of force; but if the
threat is of a lesser harm, then lesser force must be used in defense or privilege is
lost.
2. A subjectively honest but unreasonable mistake is not allowed; but an objectively
reasonably mistake excuses excessive force
a. Deadly force: Special rules limit use:
i.Danger must be serious: D may not use deadly force unless he himself
is in danger of death or serious bodily harm.
iii.Retreat
1. Courts are split on whether D has a duty to retreat if the threatened harm could be
avoided in this way.
a. Restatement 2nd holds that: D may use non-deadly force rather than
retreating but may not use deadly force in lieu of retreating, except if attacked
in his dwelling by one who does not reside in the dwelling.
iv.Courvoisier v. Raymond
1. Facts: D, trying to chase out burglars w/ his gun; accidentally shoots cop who had
come to the scene, thinking that the officer was going to attack him
2. Rule of Law: An action of force is justified by self-defense whenever the
circumstances are such as to cause a reasonable man to believe that his life is in
danger or that he is in danger of receiving great bodily harm and that it is necessary
to use such force for protection.
b. Defense of Others
i.General Rule:
1. A person may use reasonable force to defend another person against an attack. The
same rules apply as in self defense.
 ii.Reasonable Mistake:
1. Courts are split. Older courts hold that the intervener “steps into the shoes” of the
person aided (Minority Rule/Traditional View), and thus bears the risk of mistake
but Restatement 2nd gives a reasonable mistake defense to the intervener (Modern
view).
c. Defense of Property
i.A person generally may use reasonable force to defend her property, both land and chattels
(Nondeadly Force).
1. Warning required first: The owner must first make a verbal demand that the intruder
stop, unless it reasonably appears that violence or harm will occur immediately, or
that the request to stop will be useless.
ii.Property owner may not use deadly force to protect property unless a person is threatened as
well.
1. The owner may use deadly force only where:
a. Non deadly force won’t suffice and
b. The owner reasonably believes that w/o deadly force, death or serious bodily
harm will occur.
i.Burglary: A homeowner is typically allowed to use deadly force
against a burglar if they reasonably believe that nothing short of
deadly force will keep them out.
iii.Defendant may use non-deadly force if (Gilbert’s):
1. Intrusion by O is not privileged (or P led D to believe this)
2. D reasonably believes force is necessary to prevent or terminate the intrusion
3. D, prior to the use of force, makes a demand that the intruder cease or desist (unless
the demand appears futile)
iv.Katko v. Briney
1. Facts: The Brineys (D) placed a "shotgun trap"/spring gun in one of the bedrooms of
a house owned, but not occupied, by them, and Katko (P) was injured by this trap
when he broke into the house.
2. Rule of Law: Reasonable force may be used to protect property, but not such force as
will take human life or inflict great bodily harm.
3. Mechanical Device
a. You can use mechanical devices to protect property only if you would be
privileged to use a similar degree of force if you were present and acting
yourself.
b. Need adequate warning
c. Reasonable mistake: An owner’s right to use a dangerous mechanical device
in a particular case will be measured by whether deadly force could have
been used against that particular intruder.
v.Restatement 79 (Defense of Property)
1. Can use reasonable force after asking the other to stop/leave/desist unless it seems
likely it won’t make a difference (77(c))
5. Property Torts
a. Doctrine of Necessity
i.Under the defense of necessity, D has a privilege to harm the property interest of P where
this is necessary in order to prevent a great harm to third persons or the defendant herself.
ii.Economics viewpoint: parties should have bargained to reach an agreed upon price (Coase
Theorem). Only works when transaction costs are low (hard to bargain in tempest)
1. Coase Theorem: Absent “transactional costs,” the rule of liability doesn’t matter b/c
parties will contractually arrive at the best rule (according to the market)
b. Private Necessity: If a person prevents injury to himself or his property, or to the person or
property of a third person, this is protected by a privilege of private necessity, if there is no less-
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 damaging way of preventing the harm.
i.Qualified Privilege: Where the privilege of private necessity exists, it will be a complete
defense to a tort claim where P has suffered no actual substantial harm. But if actual
damage occurs, P must pay for the damage she has caused.
ii.Vincent v. Lake Erie Transportation Co
1. Facts: D’s ship unloading at P’s dock when a storm arose and was too dangerous to
leave; mooring lines were continually replaced as they chaffed; dock damaged
2. Holding: D had conditional privilege only. Liable because ship was saved at expense
of dock
3. Rule of Law: When P’s property rights are suspended and D is privileged to use
P’s property, D is obligated to pay for any damage that results
4. Policy Justification: As between two innocent parties, the one whom nature put at
risk should bear the cost of saving himself, rather than the owner of the property that
saves him
iii.Ploof v. Putnam:
1. Facts: Plaintiff docked to defendant’s dock and defendant’s servant cut him off,
causing damage.
2. Rule of Law: Necessity justifies the entry upon the land of another.
3. One has a privilege to use another’s property to protect oneself and the
property owner cannot refuse the use of his property as a haven. Private
necessity afforded plaintiffs a limited property interest and so defendant is
liable if they cut them off.
4. Endowment effect – idea that people demand more to give up an object that they
already own than they would pay to purchase the same object
iv.Unqualified Privilege
1. Single-sided liability -- boat owner can use but not pay damage
2. Efficient with PERFECT information
v.Remember!
1. Scope of dock owner’s property right dependent on tort liability rule
2. Deterrence/resource allocation explanation: party with stronger legal property
interest usually has less incentive to prevent damage
vi.Coase Theorem
1. Rule: Absent “transactional costs,” the rule of liability doesn’t matter b/c parties will
contractually arrive at the best rule (according to the market)
2. Potential Transaction Costs/Problems
a. Cash-flow (liquidity) problem – can’t always convert goods into money
b. Agency costs – idea that preferences can be expressed incorrectly;
transaction costs between the owner and agent
c. Ill-specified legal rights – legal rights aren’t always crisp and precise; there
are trade-offs involved in the rule-standard choice, can affect the party’s
ability to bargain in a way the parties specify
d. Strategic behavior – Adverse selection, moral hazard, sequential care, etc.
6. Boats and Docks: Game Theory Model to determine which rules (Liability or Property) lead us to
efficient/desirable result
a. Property Rights
i.Actor must buy the entitlement from the owner, ex ante, otherwise, the owner can call the
police to enforce his property rights
b. Liability
i.If the actor destroys the initial entitlement, and the actor is willing to pay objective (market)
value then we have liability rule
c. Qualified Privilege
 i.Necessity based qualified privilege—boat owner can dock in time of emergency, if kicked
off can get damages later, if damage to dock, then boat owner liable
d. Low Transaction Costs
i.Three Rules: All lead to efficient result when transaction costs are low, and are generally
accepted in legal practice today.
ii.Mathematical demonstration of the Coase Theory (resources are adopted efficiently
REGARDLESS of the rule adopted) and why qualified privileges are superior to unqualified
privileges
1. General Rule (Property Rule)
a. Dock owner property rule protection
i.Not liable if you kick boat off
2. Necessity Rule (Double Sided Liability)
a. Qualified Privilege
i.Can use dock and can sue if kicked off (Ploof). If damages to dock,
boat-owner pays (Vincent)
3. Reverse of General Rule (Property)
a. Boat owner has property rule protection to use the dock. Can call sheriff to
enforce right. Entitlement becomes vested with the boat-owner
e. High Transaction Costs
i.Necessity rule is the only efficient result. Liability steps in when transaction costs are high.
(Justifying rationale of Vincent)
f. Unqualified Privilege
i.Single-Sided Liability: Boat owner can use but not pay damage
ii. Efficient with PERFECT information.
1. But with asymmetric information unqualified rule may lead to inefficient result
(pooling equilibrium; the dock-owner will allow for boat to dock because he doesn’t
know what type of boat there is and he is risk-neutral).
iii.Model shows us why Vincent court held boat owner liable even though not negligent—
efficient!
iv.Contract presumes no difference between property and liability valuations.
g. If liability rules are efficient, why an exception to property rules?
1. More costly (we assumed costless)
2. After the fact review means court does objective valuation. In private contracting
under property rules, the party’s do subjective valuation (more confidence, let you
decide if different value other than market)
ii.Punitive damages are heaped on to enforce property rules
iii.The privilege in the privilege is that in Vincent only damages are paid—no punitive
damages since he did not act wrongly

III. Causation
1. Actual Causation
a. How to identify person responsible, nature of harm, and the damage?
i.Cause-in-Fact / But-For Test: "But for" the presence of D, would x have happened?
Connection b/w D's conduct and resulting injury to P? You have to have specific and general
causation in order to have this.
ii.Two types of causation:
1. General causation: whether the activity alleged is inherently capable of causing the
sort of harm suffered by P. (e.g. can car fumes harm cows?)
a. Circumstantial Evidence
i.May be enough to prove causation even though there is no direct
proof or evidence
ii.May be stronger than direct evidence when none is available (i.e. no
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 one witnessed a particular spark from smokestack hit hotel) or when
other factors weaken the direct evidence (witness was P’s brother).
1. Also, there are times when proving a fact circumstantially
rather than directly could be advantageous. (Direct evidence
is only as strong as the credibility of the witness.)
iii.Hoyt v. Jeffers (Smokestack Case)
1. Facts: Hoyt (P) claimed that a saw mill owned by Jeffers (D)
emitted sparks which set fire to Hoyt’s hotel and destroyed it
2. Concise Rule of Law: Circumstantial evidence is admissible to
show causation, and it is for the jury to decide how much force
and weight it is to be given to such evidence.
iv.Pure statistical probabilities are not enough to show causation
1. Smith v. Rapid Transit Inc. (lady hit by bus)
a. Facts: Smith (P) claimed that a bus had forced her car
off the road causing injuries. Rapid Transit Inc. (D)
denied that it was its bus which was involved.
b. Rule of Law: Causation cannot be shown by
mathematical probabilities in the absence of other
convincing evidence.
v.Problem with the use of stats is that we may be asking the wrong
question. Multiple possible defendants: how likely it was the Ds bus
on the road v. how likely it was the Ds bus that negligently caused the
accident.
1. The reason we feel funny with statistical evidence is that you
can find someone guilty despite the fact that the numbers
don’t directly relate to the D’s guilt. This therefore means that
the D’s guilty is perfectly consistent with someone else
committing the tort, for example.
vi.Distinguished from circumstantial evidence in Hoyt b/c all sparks are
bad/negligent. But the high probability of the Ds bus being on the
road does not link the Ds actions to the negligent act.
vii.Problem with the use of stats: truth in the courtroom--may be
misleading, jury may not understand significance, misrepresentation
of groups/individuals
viii.Probabilistic reasoning in casinos
1. Gambler’s fallacy and the ‘hot hand’ fallacy
ix.Jury craves testimony, even if it is less reliable than probabilities.
Role of jury is ritualistic.
2. Specific causation: Whether the activity alleged did specifically cause the harm
suffered by P. (e.g. did D's car fumes harm the cows?)
a. Scientific expert testimony
i.Correlation v. Causation: correlation—some relationship is present,
but we can’t rule out if another factor caused it, or which of the two
factors caused it. P-value—shows the confidence level of what
percentage of the results are caused by chance alone.
1. Should the tort system adopt a similar method of confidence
levels when determining causation? If so, what level?
a. Data may not exist
b. Too high burden of proof on P (may be beyond
ordinary level of proof required)
ii.Frye Test—admissible scientific testimony must be based on
 “generally acceptable” techniques (Benedictin Cases – p. 110-1).
Good idea? Look to scientific community to decide if test has merit
(not courts)
iii.Daubert Standard—p. 111—“general acceptance” rule from Frye
not necessary; gives courts access to ruling on the merits of the test
itself. (Problem: may be too much for judges to handle; too
specialized).
iv.Does the data we have give a basis for rejecting the hypothesis
that there is no link?
1. Type I – rejected a true hypothesis; this is the more important
error for science
2. Type II – do not reject a false hypothesis; this is the more
important error for tort law
a. Not rejecting is equivalent to acceptance for tort law
b. Can’t wait for more data, have to make a call
b. Multiple Defendants - Alternative Liability
i.Joint and Several Liability
1. Both parties can be joined in a single suit and each party is liable to the full extent of
the injuries irrespective of the relative faults
a. If plaintiff only sues one party, it’s that party’s responsibility to collect from
others
2. Traditional Bases of Joint and Several Liability
a. Two independent tortfeasors cause an indivisible harm (both actually
contributed to the harm). You can’t separate out the individual components.
A installs power line, B inspects, C is injured = indivisible harm caused by
installer and inspector.
b. Acting in concert (both scheme to carry out the negligent event). A and B
decide to beat C up. Even if 100% of harm caused by A, both liable.
ii.Spitball Rule:
1. Where two or more people are possibly the sole cause of a harm, and P has
introduced evidence that one of the two persons is culpable, each D has the burden of
showing that the other person was the sole cause of the harm" Unfair to deny
recovery to P b/c she can't pinpoint cause specifically.
a. Summers v. Tice
i.Fact Summary: Summers (P) sued two defendants for personal injury
caused when both defendants shot in his direction.
ii.Rule of law: When two or more persons by their acts are possibly the
sole cause of a harm, and the plaintiff has introduced evidence that
one of the two persons is culpable, then the defendant has the burden
of proving that the other person was the sole cause of the harm.
iii.Ybara Rule: Where P is unconscious to receive medical treatment and injured by
negligence, and a range of actors could have caused injury, D's bear the burden of
disproving their own tort liability. Simply because P is unable to identify single
culpable actor does not preclude remedy.
a. Ybarra v. Spangard - Patient is under anesthesia when one or more of a
number of caregivers harm him
i.Facts: Patient is under anesthesia when one or more of a number of
caregivers harms him
ii.Notes: P unable to produce evidence for an injury that occurred but
which “stinks” of negligence; P only needs to satisfy res ipsa loquitor
(inference of negligence by showing it was not an ordinary
occurrence) and then show, on top of this, that one of the Ds must
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 have been the cause of the harm. Leave it to Ds to sort out liability,
prove their own innocence.
iii.Justification: All of the Ds were involved in a common enterprise
(not necessarily tortuous) and had a duty of care (even though all Ds
probabilities of causing harm may not be equal)
2. Market-Share Liability
a. Sindell v. Abbott Laboratories
i.Facts: Ps sued manufacturers of drug DES because of injuries they
allegedly suffered as a result of exposure to DES in utero
ii.Rule: If P joins a substantial share of market representing
production, then the burden of proof shifts to the Ds to prove they
did not supply the product to the P. If D did not make such as
showing, then each is liable for the proportion of their market
share as opposed to the full extent of the injuries (rejected
Summers).
b. Benefits
i.Underlying theory is that once it is clear that each D’s DES injured
some of the Ps, Ds should not escape liability merely because Ps
cannot show which D injured which P
ii.Theory is that in the long run each defendant only pays according to
market share, it will all sort itself out
c. Problems
i.Corrective justice is less well served b/c there is not matching up of
each P w/ D whose DES injured her; wrong is corrected, but not
necessarily by party who wronged P
ii.Relevant market-share data is not always available, especially when
relevant time period is 20 or more years before suit
iii.If there are alternative causes of disease suffered by Ps, market-share
is not accurate surrogate for total amount of disease caused by any
given D b/c cause of disease in some people cannot be traced to any
of Ds
iv.Imprecision/unfairness (which Ds brought, not all Ps sue); if certain
Ds can get off, that contradicts theory that liability will be equally
spread; substantial percentage of the market ≠ damages against a D
based on how likely to have cause harm. Highly controversial ruling.
v.Usually it is not feasible to sue all possible Ds
3. Doe v. Cutter
a. Facts: Hemophiliac contracted AIDS and sued two providers of clotting agent
alleging that they had been negligent in preventing the transfer of AIDS
through their products. Question of whether the two could be held jointly and
severally liable or whether the defendant would have to prove which
company provided the tainted clotting agent.
b. Holding: Doe rejected alternative liability (Market-Share, Summers, etc.).
i.Why?
1. Court used statutes limiting joint and several liability to
indicate the public policy desiring a restriction of liability
(even though Market Share Liability is different than that of
Joint and Several – P only gets percentage represented, not
full).
2. Not selling a fungible (interchangeable) product
3. Goods here could be traced to a specific producer
 b. Concurrent and Successive Causation
i.Two or more causal agents would, independent of each other, have caused plaintiffs harm.
ii.Dillon v. Twin State Gas & Electric Co.
1. Boy electrocuted by wire he grabbed as he started to fall off the bridge
2. Look at the alternative state of the world
a. if he would have survived otherwise
i.damages would be for the harm caused which included death
b. if he would have fallen and died
i.then only liable for pain and suffering caused by the shock
c. if he would have survived, but in a maimed state
i.liable for difference in maimed state and death
3. evidence of alternative state of the world is only admissible when two causal agents
are part of the same causal event
4. ask, “but for the defendant’s negligence what would have happened?”
iii.Kingston v. Chicago
1. two fires join 900 feet from the property and wipe out property
2. Look to how the mystery fire started to determine defendant’s liability
a. If it was natural, no liability
i.Not responsible for acts of God
ii.Preserve nature
iii.In this case, it is similar to the but for test in Dillon
b. If it is manmade, then there is still liability
i.joint and several liability
3. part is consistent with Dillon and part is not
a. defendant gets to rely on fortuity that other fire was natural
b. may be unsatisfactory, but it is the rule in this case
iv.All we have here is actual causation
1. but for causation only gets so far
2. look to proximate cause too.

IV. Negligence
1. Origins (negligence vs. strict liability)
a. Struggle between strict liability and negligence as the standard
1.strict liability for intentional, esp. with high transaction costs
b. When should we also require fault in addition to harm?
c. Traditional cases
1.two kinds
a. writ of trespass
a. direct harm
b. unlawful acts
c. strict liability applied here
b. action on the case
a. indirect injury to the plaintiff
b. standard roughly similar to negligence
2.boundaries can be tenuous
d. Could only bring one of these writs
1.out of luck if wrong
e. Scott v. Sheperd
1.Facts:
a. Sheperd threw lighted squib into market stall and it was thrown from one to
another until it came to rest and injured Scott
b. Scott sues Sheperd in trespass
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 c. sheperd threw into a crowded market thinking that it would hurt someone
a. foreseeable that somebody would get hurt.
2.Original judge
a. it is unlawful act, so it falls under trespass and then must be direct harm
b. judge says it was one event quickly in succession
3.Judges on Appeal
a. Blackstone
a. all sorts of intervening steps, so it is indirect harm
b. the plaintiff brought the wrong writ and was out of luck
c. But Ryal, last actor, was negligent in not throwing it into alleyway
i.Blackstone would support writ of trespass by Scott against Ryal
d. Policy arguments
i.not just first actor--want to make the intermediate actors more
cautious
ii.can’t be the case that we can have joint and several liability for all
intervening actors either
b. Nares
a. Emphasized that it was an illegal act and other acts flowed from this act
b. Trespass okay here
c. De Grey
a. Agrees with Blackstone’s principles but thinks it is direct here with only 3
intervening actors
b. Believes that the present action is maintainable on trespass
c. Like transferred intent
f. Hot Air Balloon case briefly mentioned
1.take into account foreseeability of harm
g. Brown v. Kendall
1.defendant is beating back fighting dogs with stick and causes a harm to plaintiff who
brings action of trespass
2.direct and immediate harm
a. if we accept the settled distinction from Blackstone it should be a writ in trespass
which would be strict liability.
3.Shaw
a. harm was not caused intentionally
b. adopts the rule of whether the defendant acted with ordinary care.
c. If cause of action arises, it is trespass, but the strict liability dicta isn’t followed
d. Who bears the harm?
a. if they are both careful, plaintiff bears the harm
b. if the plaintiff is not using care and defendant is, then plaintiff bears harm
c. if neither are careful, then plaintiff bears harm
d. if plaintiff is careful and defendant is not, then the defendant bears the harm
e. adopts negligence with defense of contributory negligence
f. Burden was on the plaintiff to show that there was something other than ordinary
care.
h. Reasons for adoption of negligence
1.Some scholars thought it was designed to provide implicit subsidy to burgeoning industry
2.Another view was that it suffered from a biased collection of cases in casebooks
3.Make the plaintiff responsible for lack of care
i. What if both act with care?
1.Yes-Yes box
a. under strict liability with contributory negligence, then it is the defendant
 b. under negligence rule then it is plaintiff
c. No real fairness or deterrence arguments to make about this box
a. who bears inevitable harm in the world.
j. Fletcher v. Rylands
1.Facts:
a. Defendant builds a reservoir on the property, water seeps through and floods the
mine below plaintiff’s property
b. He didn’t know land was weak, wasn’t negligent, and wasn’t unlawful
c. Plaintiff also blameless
2.Lower court
a. Bramwell looks at this situation
a. The affirmative act of digging creates sole causal element
b. Strict liability should be applied against defendant
b. Martin
a. There is no trespass or unlawful act, so the defendant should not have pay
i.Kysar asks, isn’t it a direct harm, so isn’t there a trespass?
ii.but could argue that indirect cause was weakening of subterranean
surface
b. argues that common law default rule is negligence
c. Barron Pollock
a. agreed with Martin so negligence wins
3.Up to next chamber to Justice Blackburn
a. mischievous use of land
a. default is strict liability
b. negligence is applied if the risk is assumed by the plaintiff
i.such as highway cases
ii.but the plaintiff here did not assume the risk of mischievous water
b. if not mischievous use of land
a. standard is negligence
b. defense if the plaintiff was faulty (contributory) or it was the act of God.
4.up to highest chamber
a. left with strict liability for non natural or negligent use of land
2. Law and Econ (Negligence v. Strict Liability)
a. In order to understand these cases, put on law and econ hat
1.see The Economics of Mills and Mines handout
2.when would we adopt strict liability standard instead of negligence standard
a. critical difference: strict liability takes account of activity levels in a way that
negligence doesn’t
b. so a strict law and economics adherent (e.g. Posner) will say: we will find strict
liability in the law in those areas where we think the behavior of D is risky even
when taking care
c. use strict liability here to apply an additional deterrence effect, not just the basic
insurance effect.
d. this is indeed what you get in the common law
a. e.g. Rylans v Fletcher – court applies strict liability because activity levels
matter in this type of area
e. Restatement Section 520
a. Apply strict liability for abnormally dangerous activities
b. Six factor test §520
c. §520c – inability to eliminate the risk by the exercise of reasonable care
d. modern descendant of Fletcher
3.Law and economics explains law as a quest to minimize cost from accidents
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 a. usually this is by adjusting care levels (via negligence)
b. but in certain cases it is deterring activity levels (via strict liability)
4.Also look to the administrative costs of apply tort laws
a. It is hard to tell whether strict liability or negligence imposes more administrative
costs
5.Summarizing
a. unilateral accidents – where only Ds conduct is relevant – either SL or NEG
gives us efficient level of care. (push)
b. amount of info. court needs in order to apply efficient liability standard is greater
for NEG than for SL – court needs more info to set that standard properly in
NEG (advantage SL)
c. activity levels – SL has the potential to discipline activity levels in a way that
NEG doesn’t (at least according to conventional wisdom) (advantage SL)
d. administrative costs seem to be indeterminate – not clear which is more costly
(push)
e. so SL seems to be the winner on the scoreboard, but in reality NEG is the winner
and SL is the exception to the default rule of NEG.
a. Why? Why does SL only show up as an exception in §519?
b. in this yes-yes box, it could be that courts are looking to other externalities
and benefits that accrue to society
c. So now our rule might be: when we think there are net negative externalities
we want to apply SL; if we think there are net positive externalities we want
to apply NEG.
i.net positive externalities – if judge thinks that an activity has net
positive externalities then we might want to encourage that activity –
by subsidies (through tort)
ii.net negative externalities – beasts or other nuisances – might want to
make Ds internalize all these externalities (through strict liability)
iii.Supported by cases and Holmes arguments
b. Powell v. Fall
1.British case
2.Sparks from an engine damage rick of hay
3.Dangerous Activities held to SL
a. Don’t allow for damages to be externalized
4.If after SL the activity cannot pay for itself then we should celebrate
a. It wasn’t socially useful.
c. Brown v. Collins
1.NH American case. Come over to American law in contrast to above cases in British law
2.Defendant’s frightened horses from railroad engine hit plaintiff’s post
3.Repudiates Rylands v. Fletcher and says English law based on outdated principles
4.Applies negligence and says that D was not negligent, therefore entitled to judgment
5.Support for the idea of positive externalities
a. Benefit to civilized society
d. Losee v. Buchanan
1.American Case
2.Social needs for dams, etc.
3.Person damaged receives compensation for externalities accruing to society
e. England v. America at this time
1.England thinks industry is polluting and damaging
2.America thinks that industry is lifting us out of barbarism.
f. Stone v Bolton
 1.Whether negligence or strict liability should be applied to the case where a woman gets hit
in the head and injured with cricket ball
2.Plaintiff not at fault
a. Walking in front of house
3.Negligence v. SL
a. If negligence, was the defendant negligent in construction of field, failure to take
precautions etc.
4.Lower Judge, Jenkins
a. Talks about negligence, but seems to be closer to SL
b. Was it reasonably foreseeable risk?
a. he says it was and then applies liability (strict liability).
b. later we will ask whether there is reasonably foreseeable risk, but that only
creates a duty
i.once there is a duty, then we determine liability standard
1. negligence or SL?
c. He is adopting SL, why?
a. by our theory, net negative externalities to game of cricket.
5.Appeal to House of Lords
a. Reid
a. rejects foreseeability as liability trigger
b. adopts reasonableness test
i.risk of harm and the magnitude of such harm
ii.must not create a risk which is substantial
iii.implicit statement of Learned Hand’s B<PL principle
1. P is probability of injury
2. L is the loss that results from harm
3. B is the burden on Defendant of avoiding the harm
iv.Difference is that Judge Reid doesn’t care about the B
1. If PL is large don’t do it—strict liability
2. If PL is unsubstantial, no liability
c. Reason for reasonableness instead of foreseeability
i.Value of the activity of cricket and positive externalities
b. Radcliffe
a. D was reasonable and is not culpable
b. Look at what reasonable person would have done considering P and L
i.In this case, nothing
ii.Reasonable person
1. Use this to set standard of liability
2. Objectively determined reasonable person from joint
ownership situation (P and D).
c. demonstrates concern for both B and PL
6.Externalities
a. Jenkins Strict liability
a. negative externalities swamp positive externalities
b. positive externalities included in ticket price
b. On appeal, positive externalities not in ticket price
a. national reasons to favor subsidizing cricket
b. hard to count these, but they seem to be accounted for in opinions
c. holding D to strict liability if he is forced to internalize all of negative
externalities, but not positive externalities would result in sub-optimal level
of activity
3. General Standard
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a. United States v Carroll Towing Co. (pg 158)
1.during WWII in NY harbor, the barge breaks loose from the tug when bargee was not on
board
2.was it contributorily negligent for the bargee not to be on board the barge – the bargee was
on shore for 21 hours?
3.Judge Learned Hand’s Holding:
a. no specific rule to apply to bargee’s absence which will determine contributory
negligence
a. not a case where we can find per se negligence like drunk driving, etc.
b. if we imposed strict liability on the bargee then he would always be required to
be on the barge
a. instead we’re going to need some negligence standard.
b. Hand commits liability fallacy
i.could still leave the barge under SL but would have to balance heavier
liability rule
c. need to balance B against PL – this is where we get the B < PL
a. B – burden on D of preventing the harm
i.burden of being on board
ii.not that substantial here
b. P – probability that the harm will occur
i.Hard to know here
ii.Hindsight fallacy: Mere fact that it happened causes us to increase
probability
c. L – cost of the loss that will result
i.the cost of the barge sinking
d. Hand estimates and concludes that B < PL
a. Therefore, there is negligence
4.Difficulties of B < PL calculations
a. Incommensurable items
a. Some things can’t be measured
b. Or might be measurable on own terms, but hard to compare to other
categories
b. Restatements
1.Unreasonableness
a. Section 291
a. Unreasonable if “risk is of such magnitude as to outweigh what the law
regards as the utility of the act”
b. Section 292
a. Factors in determining utility
i.Social value of interest
ii.Chance this interest will be advanced
iii.Extent of chance that interest can be advanced less dangerously
c. Section 293
a. Factors in determining magnitude of risk
i.Social value of interests imperiled
ii.Extent of chance invasion of interest will occur
iii.Extent of harm likely to be caused to interests
iv.Number of persons whose interests likely to be invaded
2.Duty
a. Section 6
a. “an actor ordinarily has a duty to exercise reasonable care when the actor’s
 conduct poses a risk of physical harm”
b. unless duty inapplicable under section 7, an actor whose failure to exercise
reasonable care leads to physical harm is liable for any such harm within
liability scope
b. Section 7
a. Court may determine no duty or duty other than reasonable care
b. Based on special problems or principles of policy
c. Not liable if there is no duty
d. Liable only for modified duty if a defendant is subject to such modified duty
c. Posner (1987)
1.conceptual as well as practical difficulties in monetizing injuries
2.left to juries to intuit rather than measure the variables in the Hand formula.
3.but predicts that we will eventually be able to give the B, P, and L to actuaries at some
point where they will be able to calculate the monetary value of these variables.
d. Now see The Economics of Barges and Bargees handout
1.takes into account the bilateral accident context and that there is more than just one party’s
care involved
2.Kysar asserts that Learned Hand was wrong to assert negligence with CN if tug owner
acted second
a. Where one party has complete and perfect information, it is probably more
efficient to apply one standard over another
b. It is probably true that defendant tug owner knows when plaintiff bargee is not in
ship when he decides what speed to go
c. Want him to take care, so really we want defendant to be in the no-no box, not
plaintiff
a. Negligence rule
4. Special Rules Governing Proof of Negligence
a. Violation of Criminal Statutes
1.Martin v. Herzog
a. Defendant car driving around a bend on the wrong side hits plaintiff buggy
without lights on
b. Car was negligent by driving on the wrong side of the road
c. Legal question
a. Was the absence of lights in violation of legislative announcement
contributory negligence?
d. Holding
a. Violation of legislative announcement is negligence per se.
e. Jurors should not be able to get rid of this statute
a. if it wasn’t relevant or if it was only evidence of negligence, then they would
have dispensing power.
f. Is this no liability fallacy?
a. assumption that failure to back up criminal law with civil law will weaken
statute’s effect
g. Cardozo explains that law is not an option to conform
a. strong view about moral weight of the law
2.Tedla v. Ellman
a. Plaintiffs struck by negligent defendant driver while walking on the side of the
road
b. Statute told them to walk facing traffic and they were on the other side of the
road
c. Holding
a. Look to intentions of legislature
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 b. It is a rule of conduct and safety
i.But subject to common law, traditional, and customary exceptions
ii.Custom to walk on side with less traffic for safety reasons
c. Based on the exceptions and good reason for being on that side of the road,
violation of the law is not evidence of negligence
d. Rule
a. Back to Cardozo
b. Violation of safety statute is negligence per se with an exception for good
reason safety considerations
3.Brown v. Shyne
a. Defendant offered chiropractic treatment to plaintiff without a license so plaintiff
sues in negligence for harm of paralysis that resulted
b. court says that violation of statute didn’t cause harm itself so there shouldn’t be
per se negligence
a. Instead ask whether there would be negligence if a licensed person had
committed same act?
b. Court says that failing to get a license is not necessarily highly correlated to
negligence
c. Need to ask question about why someone doesn’t have the license
4.Bayne v. Todd Shipyards
a. courts engaged in a similar calculus when evaluating whether an administrative
regulation indicated negligence
b. more hesitant to apply Cardozo’s per se negligence rule
c. courts are split on whether it is evidence where there is a majority with statutory
violation
5.How should we look at evidence of violation of a safety statute?
a. Most jurisdictions look at it as some evidence of negligence
b. A few look at it as per se negligence (cardozo)
c. Could also look at it as no evidence of negligence.
a. Not being licensed was not found to be evidence of negligence
b. Others suggest that not being licensed should be evidence of negligence if
reason is a failure to pass licensing, but not if you failed to renew.
d. causation
a. “But for” causation?
b. General v. specific violation
i.although generally negligent, may not have been negligent in this
specific context (such as in Tedla)
e. Slippery slope
a. What about speeding?
i.look to risk to safety.
ii.custom can totally change laws
1. maybe this is reason that Cardozo is right and we should have
per se negligence.
2. on the other hand, one could argue that there is soft law
5. Custom
a. another way to determine measure of negligence
1.based on the market
b. arose from problems with B < PL which requires so much information
c. saw also that they may look to legislature and agencies for negligence
d. We get a couple of different approaches about how to apply custom
1. Posner and Landis
 a. Positivistic project
b. low contracting costs, they should defer to custom
c. high contracting costs, they should not
2. Epstein
a. Torts should either apply strict liability, or apply custom, but not this hybrid b<pl
b. where parties are strangers
i.strict liability
c. other cases where they are not strangers
i.defer to custom
e. Titus v. Bradford
1. practice of putting broad gauge cars on narrow gauge trucks using locks and telegraph
wire
2. This is in compliance with custom and therefore not negligent
3. Decedent knew the risk and could have demanded greater compensation.
4. Court fears that juries would feel badly for plaintiff and that this would change the
custom
a. Not a desirable result
b. We have a liability fallacy here
ii.if Titus had come out the other way, the railroad could have kept the
same custom and cut the pay instead.
5. Compliance with custom is decisive
f. Mayhew v. Sullivan
1. Plaintiff is consultant on a mine and falls through a hole that defendant put in platform
2. Should evidence of custom be excluded?
a. court say yes
3. The hole is really dangerous so there is a high PL compared to a low B
b. negligence by judicial calculus
4. Don’t use Titus calculus and railing custom because it is not a technically difficult
situation
c. no need for expert custom opinions
d. Can use B<PL instead
e. With custom, it still doesn’t show indication of ordinary prudence
g. The TJ Hooper
1. Learned Hand
2. Middle ground between Mayhew and Titus
3. Also the dominant standard in tort law
4. Facts
a. P sues tug owner for lack of radio on board tug boat, causing the barge to be
destroyed in unexpected weather
5. Was absence of radio negligent?
a. Custom is relevant, but not decisive
b. Hand says it is not customary for tug owners to provide radio, but it is custom for
the independent contractor captains to bring radios on board
c. under B < PL is it negligent?
iii.the B is less than PL clearly, so this says that there is negligence despite
any custom
6. Hand’s generation distrust in the invisible hand
a. Tort law needs to step in more as a regulatory role.
b. swept aside market decisions and added power to tort law
7. Epstein’s criticism
a. the most mischievous sentence in all of tort law
iv.supplanted the invisible hand of custom
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 v.led to populist manifesto giving rise to products liability
b. Customs were misstated
vi.If they were understood, he would have held the same way based on
custom
vii.He thinks custom would have required owner to have radio on tug
c. Very concerned about dicta
d. Should trust custom more than B < PL
8. Landus and Posner
a. Hand had custom wrong
viii.90% of ships had radios
b. on their theory Learned Hand should have deferred to custom due to low
transaction costs
ix.would have found negligence from custom
c. Say that Hooper has only been imposed in high transaction scenarios and so they
aren’t too worried about dicta
3. Did Hand really get the custom wrong?
a. If his custom did apply strictly, then the defendant shouldn’t be negligent
i.But Epstein says this would have been a bad result and that custom
should be applied, but that Hand was wrong on the nature of the custom
b. Kysar thinks Hand was right about the custom
i.Custom of tug owners not providing radios should exonerate our
defendant by strict custom
ii.But we can test whether or not this outcome would be efficient by B < PL
which is what Hand does.
iii.it isn’t, so it seems like it is right to intervene with tort law.
4. Kysar thinks that transaction costs are accordion like and can be adjusted after the fact
a. Some relation between the parties that give reason to defer to customary
allocation between them
b. We don’t have reason to think that the custom will be efficient in some settings
so we should apply liability in those
c. law and econ: we intervene during a market failure
h. Medical malpractice
1.Doctors typically were held strictly liable unless the doctor complies with duty to expose
risk
a. Then still hold the doctor liable for negligent care
2.Typically doctors and patients are not be able to contract out of standard liability
3.Role of custom is much more robust and more akin to Titus than Hooper or Mayhew
a. Helling v Carey is anomaly
b. Plaintiff ordinarily has to hire an expert to speak to custom which is the
controlling standard of liability
i.lay jury members may not be able to grasp BPL analysis, so custom is
better
ii.Faith and respect given to profession that made courts more comfortable
going with custom.
i. Helling v. Carey
1.Somewhat anomalous case
a. Less weight given to custom here, if any at all
2.Facts
a. Glaucoma test wasn’t done on under 40 patient who then went blind from
glaucoma
b. Custom was to not do test for people under 40
 3.Custom is normally the unbending test in medical malpractice
a. But not here
b. Court thought that test was so easily administered and risk was so great later that
it should have been performed
c. Test comports with ordinary care
4.Imposing insurance
a. Courts are requiring this screening test and others to be performed—expensive
and likely to spiral out of control
b. Role of federal statutes vs. state tort law
5.Majority of folks still think this is an exception
6.General rule
a. custom provides the unbending tests
b. unwilling to enforce contractual waivers of liability
6. Res Ipsa Loquitur
a. Shorthand way of finding negligence – “The thing speaks for itself”
b. Restatement Section 17
1.“It may be inferred that the defendant has been negligent when the accident causing the
plaintiff’s physical harm is a type of accident that ordinarily happens because of the
negligence of the class of actors of which the defendant is the relevant member”
c. If it was under exclusive control of the defendant and typically wouldn’t occur unless there was
some negligence, then we can say that it sets up a prima facie case (some courts say it constitutes
some evidence)
d. Differences in the way the court treats the presumption when the defendant brings up evidence that
puts it in dispute
1.in some, res ipsa loquitur stays there and both are presented to jury
2.in others, presumption is gotten rid of
e. aware of relative lack of access to evidence that plaintiff has
f. take duty into account too
g. Boyer v. Iowa High School Athletic Association
1.woman sitting on the bleachers that collapse, causing her to fall 8 ft
2.She sues but there is no specific evidence of negligence
3.In this case, res ipsa shifts the burden of proof
a. Found that the facts speak for themselves
b. Exclusive control and would not have happened were it not for negligence
typically.
4.Burden would be on defendant to show otherwise
h. Shutt v. Kaufman’s Inc.
1.woman sat down on a chair and it bumped a shelf, causing a metal shoe stand fell and hit
her on the head.
2.Store could have been negligent, but Shutt could have proven that this was the case and
she didn’t
a. So the lower court erred in submitting res ipsa instruction
3.she could have shown negligence here, but it would have been hard to show in Boyer
a. go get the shoestand and bring it into court
4.Court doesn’t want to res ipsa doctrine to serve as a shorthand for cases when specific
negligence can actually be proved
i. City of Louisville v. Humphrey
1.Drunk man taken to prison and found dead the next morning with brain damage and bruise
to eye as if someone hit him
2.Holding
a. Shouldn’t hold prisons strictly liable for the prisoner’s well-being
b. Not going to hold liable by res ipsa because the prison didn’t know that the other
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 person in the prison was violent (if there was another person there).
a. note: it would be different if the prison did know
3.could impose difficulties on city that taxpayers wouldn’t want to pay if it came out the
other way
4.Maybe lower the PL and be in a better situation
a. Already, there is some care in place and there are a lot of people who are
protected
5.Notice the way the duty interacts with the res ipsa
a. duty of care owed to the prisoner to guard against fellow prisoners with a known
propensity for violence
b. turn res ipsa on or off by determining if there is a duty owed by city for certain
types of causal elements
7. Modification of General Standard Due to Special Relationships
a. Responsibility of Possessors of Land for Safety of Trespassers, Licensees, and Invitees
1.Problem 15 (see restatement sections on 218-220 for more detail)
a. Assume we’re in a jurisdiction with distinction between licensees, trespassers,
and invitees
b. Boy on a dock at a lake house with permission falls through a rotten plank,
suffering injury
c. Duty depends on how someone is classified
a. Restatement Section 343—invitee (public invitee or business visitor)
i.you are entitled to a higher degree of protection than if you are a
licensee
ii.distinction is that there is an affirmative duty to investigate and
discover conditions
iii.duty of reasonable care
b. Restatement Section 342—licensee (privileged to enter or remain by
possessor’s consent)
i.lesser degree of protection
ii.Reasonable care or warn of condition
iii.only liable if you know or have reason to know
c. Restatement Section 329—trespasser(without a privilege)
i.owner only under a duty to avoid willful and wanton conduct toward
trespassers
ii.complicated by types of trespassers
1. constant trespassers, Restatement 335
a. maybe the owner knows or should know that kids have
been trespassing for many summers
b. duty is to exercise reasonable care to warn trespassers
of an artificial condition where the owner knows that
the condition is likely to cause death or other serious
injury
c. lack of knowledge is a defense though.
2. Restatement 337
a. doesn’t fit our facts
b. exercise reasonable care to warn trespassers of an
artificial condition which involves a risk of death or
serious bodily harm
c. if the possessor knows or has reason to know of their
proximity to the condition
d. and it is of such a nature that he has reason to believe
 trespassers will not realize risk
3. Restatement 339
a. child trespassers
b. do we know or have reason to know of risk of death or
serious injury
c. special conditions and higher duty
d. probably lead to a directed verdict here
2.Rowland v. Christian
a. California - more open ended balancing approach
b. Balance of considerations
a. foreseeability of harm to the plaintiff
b. the degree of certainty that the plaintiff suffered injury
c. the closeness of the connection between the defendant’s conduct and the
injury suffered
d. the moral blame to the defendant’s conduct
e. the policy of preventing future harm
f. the burden to defendant and the consequences to the community of imposing
duty, availability, cost and prevalence of insurance
b. Responsibility of Common Carriers for the Safety of Their Passengers
1.in most states common carriers have duty higher than reasonable care
c. Responsibility of Operators of Motor Vehicles for the Safety of Their Passengers
1.a few states have laws that lower the standard of care owed by operators of automobiles to
nonpaying guests
8. Limitations on Liability
a. Absence of a General Duty to Rescue
i.Hypo – Prof in a Puddle
1. Kysar is lying face down in a puddle drowning
2. could save his life by stopping to roll him over but choose not to
3. no legal liability, despite B < PL calculation
ii.Restatement Section 314
1. “The fact that the actor realizes or should realize that action on his part is necessary for
another’s aid or protection does not of itself impose upon him a duty to take such action”
iii.Affirmative Duty: Cases where we trump and say there is an affirmative duty
1. Certain settings where we do, but here we don’t
2. Also don’t impose on baby walking to a cliff or doctor who receives a call in the middle
of the night.
3. Why not?
a. Liability machine, as a practical matter what do we do
b. Circles could keep expanding
c. Not everyone thinks there is something we should do
d. On the other hand, tort is tailored, so we could ask what it would be for this
particular person.
4. Punishment for saving life, but doing so poorly
a. but bizarre that there is no punishment if we don’t try
iv.Buch
1. announces the general rule that strangers have no duty in the absence of some special
relationship.
v.Erie R. Co. v. Stewart
1. Exception to the no duty rule here
2. Facts
a. the driver of a car gets hit by a train because he didn’t stop, look, and listen.
b. He relies on the watchguard who is normally there, but wasn’t there then.
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 3. efficiency minded approach
a. doesn’t really cost the driver much to check
b. Once the watchperson is in place though, the driver relies on him
4. hold the person liable who lulled the other person into not taking care
a. Look to Lacey
i.deterring other rescuers creates a duty
b. reason they had a duty here seemed to be voluntary act that created reliance
5. important to realize though that they have an independent duty by laying tracks
themselves
a. failure to have a watchperson could be negligent by itself
b. would do a B < PL analysis for this
vi.Tubbs v. Argus
1. Guy crashes car and leaves injured date behind who sues on additional injuries from his
failure to help.
2. Law doesn’t allow for the injuries for the auto accident but does for the injuries resulting
from failure of duty
3. Failure to act or omission?
a. Is there a liability?
i.Yes
b. Doesn’t matter whether or not the defendant is negligent
4. Rule
a. Having acted to put in position that creates danger of future harm, then there is
an affirmative duty to render aid.
b. “legal obligation to take positive or affirmative steps to effect the rescue of a
person who is helpless and in a situation of peril, when the one proceeded against
is a master or an invitor or when the injury resulted from use of an
instrumentality under the control of the defendant”
vii.Problem 17
1. Tubbs theory requires some causal connection between your act and the state of
helplessness
2. Was he the “but for” cause of the accident?
3. Or, was there some sort of reliance created by D’s voluntary act which worked to deter
other rescue?
viii.loss of chance doctrine
1. murky field with enormous judicial variation
2. suppose we have two different diagnostic tests
a. 10 of 100 are false negative
b. 8 of 100 of the other are false negative
3. how do we say it is negligent not to use the second test?
a. Look at customs
b. lead to a point where it is most efficient
c. difference in costs
d. whether it is causally connected to the outcome
4. if there was a false negative and we used the 10%, what chance would there be that it
was due to the false test
a. 20% chance of surviving
b. but still is not ordinary threshold, so the defendant would never be liable by this
even if it was negligent
5. does that create a problem of underdeterrence?
a. if we keep tort rules the same and there is no competition, they will go with
cheap test
 6. could say that defendant must pay proportionate damages
a. ie, in this case it would be 20%
b. it works if your causal theory is purely probabilistic
7. courts have usually had a much more simplistic approach
a. wants to say A hit B, not some probability
b. sometimes said they want a substantial percentage
c. willing to go below 50 percent in this context with a substantial percentage
ix.Tarasoff v. Regents of University of CA
1. Big change in the psychiatric therapeutic profession
2. Development of idea that is implicit in case from yesterday
a. no duty to strangers but if there is a special relationship we might be willing to
impose aid
3. Facts
a. psychologist is alleged to have known that his client threatened harm to a
particular individual and warned the police who detained and released client
b. client went and killed the individual
4. should there be a legal duty through the relationship with this third party?
a. failing to warn her is a culpable omission, even though you wouldn’t ordinarily
be liable in the stranger context
b. there is a duty to warn if reasonable doctor knew or should have known there is
risk of violence to foreseeable victims.
c. analogize the relationship to hospital having duty to prevent harm between
patients even though psychologist doesn’t have control over both parties here
d. Here we are imposing a duty to warn others with whom there is no existing
relationship
5. Tarasoff points in the direction that there is a duty to warn if someone has a disease and
there is a known person with reasonable belief to acquire the disease
6. Effects
a. Who do we want making the judgment of violence?
b. How do we know it is real?
c. Here the psychologists actually thought there was a threat
d. Worry that patients wouldn’t trust as much and wouldn’t be as good as a
psychologist
e. Courts see this as deploying expertise in service of a social goal
d. liberty vs. protection of others
7. ABA has fought any duty to disclose information about threatened client fraud
a. Only after worldcom did this change
b. ABA put in the same situation as psychologists
b. Proximate Cause
a. concentric circles for proximate cause
a. But for
i.But for the negligent behavior, would
the harm have occurred?
ii.Actual Causation
b. Wrongful aspect
i.But for some wrongful aspect, would
the same harm nevertheless have
resulted
c. Nexus
i.Passed first two hurdles, but don’t
want to attach liability.
ii.2 most prominent approaches to the
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nexus question (See Palsgraf)
1. Cardozo
a. hinges
nearly
everythin
g on
foreseeabi
lity
b. Was there
a duty
owing
from this
D to this
P to avoid
the risk
that led to
this harm?
i.La
ter
cal
ls
thi
sa
du
ty
qu
est
io
n
2. Andrews
a. There is a
duty to
and from
everyone
for breach
to one
person
b. says we
resolve
proximate
cause
with
foreseeabi
lity as one
factor
c. Distinctio
n between
calling it
a duty
question
(judge)
 and
proximate
cause
(jury)
2. Exemptions (the empty center)
a. Still have some cases where the court will still say no liability, even if you pass
the other hurdles.
b. Hole in the middle
i.Courts after passing all hurdles may still hold that there is no liability.
ii.For instance they may say no duty of care existed
2.Liability Linked Logically to Defendant’s Negligence and Limited to Foreseeable
Consequences
a. “But For” the wrongful quality
a. Ford v. Trident Fisheries
i.Facts
1. Plaintiff’s intestate fell off fishing boat and defendant was
negligent by having lifeboat accessible but with only one oar
ii.Court finds that the negligence didn’t affect man’s death
1. Drowning causes death
iii.there is a duty here, by virtue of hiring the intestate they assume a
duty to provide precautions on the boat
iv.why no recovery despite this duty?
1. the man would have died anyway
v.But for having hired the intestate, death would not have occurred
1. But for wrongful aspect though, the death still would have
occurred
2. Negligence occurred after falling off boat
b. suppose in Dillon, had sued the bridge owner, what would the claim be?
i.no handrail being there, but no preexisting relationship, such as
employer-employee
ii.why would the bridge have any duty at all?
1. was foreseeable that the boy might play there
2. how much of a duty to install handrail?
a. based on B<PL; reasonable care
b. could go higher or lower than this
c. think back to the trespasser rules and the attractive
nuisance duty to children
c. Lyons v. Midnight Sun Transportation
i.Facts
1. Decedent pulls out in front of MST truck and is hit broadside
2. Asserts negligence that truck was speeding and shouldn’t have
swerved
ii.Passes actual causation “but for” test
iii.Wrongful aspect
1. Even if the defendant had not been negligent, the accident
would have occurred
2. Would have still occurred but for wrongful aspect
iv.Even though there was negligence and wrongful conduct, not
connected to actual harm.
d. Loss of chance
i.way in which causation doctrines are traditionally specified means a
defendant’s negligence in treating a person already more likely than
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 not to die, would mean that the but-for question would always kick
the plaintiff out of court
ii.We saw yesterday that there are other ways
1. Some have reframed as loss of chance of avoiding death
e. Cahoon v. Cummings
i.defendant must pay, but only proportionate damages
ii.question of whether this does violence to the tort law’s preference for
causation
1. don’t know if this act caused the result
2. if you define the injury of losing a chance of avoiding death,
you might say you have the right A and right B
iii.Restatement section 323
1. Subject to liability for physical harm resulting from failure to
exercise reasonable care if
a. Failure increases risk of harm or
b. The harm is suffered because of the other’s reliance on
the undertaking
b. Was any harm to P foreseeable When Defendant Acted
a. Palsgraff
i.Facts
1. Man drops box of fireworks as conductor tries to pull him onto
train
2. Fireworks go off and injure woman when tiles fall
ii.railroad as a common carrier
1. heightened duty of care to the passengers
iii.What was foreseeable?
1. Not foreseeable that there were explosives
2. foreseeability question should not be interpreted as more
likely than not
iv.Cardozo, majority
1. Assumes negligent conduct to help men onto train
2. Does not allow liability
3. because the causal relation between the wrong (the negligent
conduct) and the harm to the plaintiff was too attenuated to
find for liability
4. the outcome is hinged on what would be seen by the “eye of
ordinary vigilance”
a. this set of events could not be seen as proximate cause
of the harm
5. Says we deal with duty, not causation
a. Owes some duty to Palsgraff, but not here
b. Independent relational duties with numerous
passengers
c. Ask what the eye of ordinary vigilance would perceive
as risk and that risk is duty
v.Andrews, dissenting
1. focuses on proximate cause
a. but for this action and for the wrongful aspect of
conduct the harm would not have occurred
2. duty was breached to person on train—doesn’t matter that it
wasn’t to Palsgraff
 a. When you breach, it is to the whole collective
3. Line for ordinary duty is drawn by practical politics
4. Analyze foreseeability assuming fireworks
5. Other factors
a. remoteness in time, direct connection, substantial
factor, natural and continuous sequence, etc.
6. Duty element for judge, proximate cause to jury
7. many argue that Andrews actually carried the day
b. Solomon v. Shuell
i.Facts
1. Plaintiff finds plainclothes cops arresting someone and thinks
person is in danger so he goes to help
2. Shot by cops
ii.just has to be a reasonable belief that the person is in danger.
iii.the way in which the cops affected the arrest was negligent.
1. So it was foreseeable that someone might step in and be
harmed
iv.Duty of care to someone who is trying to rescue
1. like Cardozo because he is the one who bases foreseeability on
duty
2. Questions that must be asked are
a. Could a reasonable person have decided that it was
reasonable for a person to affect this rescue
b. Was this a reasonable method by which to affect this
rescue
3. Liable for harm unless plaintiff unreasonable
c. Nature and Circumstances of Plaintiff’s Harm Foreseeable
a. Marshall v. Nugent
i.Facts
1. Plaintiff passenger riding in a car and another vehicle in his
lane causes car to swerve off the road
2. Plaintiff walks up hill to warn oncoming and is struck by third
party
ii.With respect to driving him off the road, we have actual causation and
wrongful conduct question
iii.Question goes to jury about whether that harm is foreseeable from
that wrongful conduct
1. Common man view – Sounds like Andrews
iv.Plausible that it is
1. Anytime you have someone stopped with fast moving cars,
you have created a dangerous situation
2. So reasonable jury could conclude that it was foreseeable
v.But also could argue it more narrowly for defendant
b. Watson v. Kentucky and Ind. Bridge and Ry.
i.Facts
1. Railroad negligently spills gas and third party throws match to
cause explosion
ii.If match throwing was a careless act
1. more likely harm was foreseeable than if criminal
2. liability to hinge on this determination
iii.Not duty where criminal act cuts in as intervening cause
1. Even though the railroad was negligent and it was foreseeable
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 that the leak of the fuel could cause the same harm
c. Hypos
i.DC Sniper case
1. Store sells firearms when it shouldn’t
2. Is there a duty to the community
3. Duty is to private individuals
4. The sniper act could be an intervening criminal act
ii.Suppose husband comes in intoxicated says he needs to buy a weapon
1. He shoots his wife
2. Negligence is selling to someone who is intoxicated
3. It is foreseeable that he could hurt himself.
4. It is also probably foreseeable that he could hurt someone.
d. Matsuda Article
i.if we think the primary party is responsible and not deterrable, look
farther up the chain and hold someone there responsible as well
ii.slippery slope
1. as you go down it, goods and services become more expensive
2. subsidies
iii.Communitarian approach to liability
1. Could also get there through law and econ
3.Other Approaches to Proximate Cause
a. Restatement Section 431 – call something a legal cause (i.e. proximate cause) if
it is
a. substantial factor in bringing about the harm
i.right up there with reasonableness – very loose test
ii.but seen as more appropriate than foreseeability which can be
manipulated
iii.some courts say foreseeability alone should not be enough to find
negligent liability
b. §431(b) negligence if something is the substantial factor unless there is some
“rule of law reliving the actor from liability”
i.this is the empty center where all the elements for negligence are met
and, yet, negligence does not apply.
b. Restatement Section 433
a. Look to following factors in determining substantial factor
i.number of other factors which contribute in producing harm and
extent of their effect
ii.Whether actor has created a force or series of forces in continuous
and active operation up to harm or harmless situation unless acted
upon
iii.lapse of time
c. no matter what, some amount of practical politics are going to infuse this
discussion
d. Wagon Mound cases
a. with what level of specificity do we require something to be foreseeable
i.distinction between Cardozo and Andrews
1. Andrews assumes provision of fireworks in the package and
then decide what is foreseeable
a. something like a strict liability rule
b. finesse the notions of foreseeability
i.if you think about it long and hard enough anything is foreseeable –
 especially when foreseeable is taken to essentially mean conceivable.
iv.Special Instances of Nonliability for Foreseeable Consequences
1. Mental and Emotional Upset (Non-Physical Injuries)
a. Negligent Infliction of Emotional Distress (NIED)
i.Basic question of who can recover for a harm to someone else
ii.Can operate on the assumption of no recovery for NIED unless falls
within one of the following exceptions—impact, zone of danger,
bystander, or special relationship
b. Impact and Zone of Danger Rules
i.Waube v. Warrington
1. Impact rule – plaintiff must suffer a physical impact in order
to recover for non-physical injuries
a. Traditional impact rule require contact
b. Liberalized into the zone of danger rule
2. Zone of danger rule – plaintiff must have been in zone of
danger herself and must have suffered a physical
manifestation of a fright or shock in order to recover for non-
contact harms
a. Defendant’s duty was to use ordinary care to avoid
physical injury to those who would be put in physical
peril, not to refrain from inflicting emotional distress
on others who were not in physical peril
b. Fear about liability becoming out of proportion with
the culpability if the zone of danger rule is expanded
further
i.Fear of creating a slippery slope and allowing
greater potential for fraudulent claims
c. Majority view requires some physical injury resulting
from fright, shock, etc. for recovery and will not allow
recovery for emotional injury alone (compare with
minority view in Dillon v. Legg)
3. Court discusses how we need to balance the social interests
involved in order to decide how far the duty of defendant and
the right of plaintiff are extended
a. Defendant must have breached duty to plaintiff-mother
in order to be found liable
i.Here, that would be the duty not to subject the
mother to the emotional harm of seeing her
child killed
b. However, court denies recovering finding that
defendant had no such duty here
c. Bystanders
i.Bystander rule is parasitic on some primary injury suffered by another
1. Bystanders – persons not in danger of immediate physical
impact
2. Can think of bystander rule as a broadened version of the zone
of danger
ii.Dillon v. Legg
1. Considers what is reasonably foreseeable in order to decide
what damages to award to bystanders for harm caused by
another
2. Three Guideline Principles
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 a. Whether plaintiff was located near the scene of the
accident or far from it
b. Whether shock resulted in direct emotion impact from
seeing the event itself or from learning about the event
afterwards
c. Whether plaintiff and victim were closely related or
more distant
3. Court weights these three principles on an all-things
considered basis in order to determine the degree of the
defendant’s liability
4. Rule: The zone of danger rule does not bar a recovery for
negligent infliction of emotional distress where a close family
member outside the zone views an accident causing an injury
or death to another family member, as occurred here.
a. Note that this is a minority view of the zone of danger
rule.
b. Expressed as the bystander rule, majority opinon of
Dillon
5. Notes:
a. no liability for bystander harm if the victim was
contributorily negligent in the occurrence of the
original harm
b. D can’t be found liable for harm to a bystander if not
found negligent for the original harm
c. Dillon was applied for twenty years but the consistent
scheme hoped for by the court never developed
iii.Thing v. La Chusa
1. Refines Dillon’s three principles into its own three elements
rule
2. Three Elements for Liability to Bystanders
a. Whether closely related to injury victim
b. Whether present at scene and aware of the injury
c. Whether suffers emotional distress beyond that
anticipated of a disinterested witness
3. Court requires that there be a harm inflicted that is greater than
the ordinary suffering of life
a. Idea that accidents are unwanted but are part of the
inherent pain and suffering of life
4. Rule: Damages for emotional distress should be recoverable
only if the plaintiff is closely related to the injury victim, is
present at the scene of the injury producing event when it
occurs, and is then aware that it is causing injury to the victim
and, as a result, suffers emotional distress beyond that of a
disinterested witness.
5. Rationale:
a. Argues that the Dillon standard is too loose and needs
to be tightened
b. but: Counterargument that the rule with exceptions set
up by Thing is even less predictable
6. Idea that lurking behind both Dillon and Thing is the desire for
evidentiary confirmation of the emotional distress suffered, as
 emotional distress seems more easily falsifiable than physical
harm
d. Direct Victims
i.Burgess v. Superior Court
1. Special relationship rule
a. Rejects distinction of two separate duties to a mother
and a fetus claimed by defendant doctor
b. Finds that since there was such a special relationship
between mother and fetus, the doctor’s duty to the two
was intertwined and that the mother could thus bring a
NIED suit
2. This duty was based on a preexisting duty between the
tortfeasor (doctor) and the mother
3. Rule: A cause of action to recover damages for NIED will lie
in cases where a duty arising from a preexisting relationship is
negligently breached.
ii.Molien v. Kaiser Found. Hosps.
1. Court allowed husband of woman erroneously diagnosed with
syphilis to sue his wife’s doctor as a direct victim of emotional
harm
2. Differs from Burgess in that there was no preexisting
relationship between the tortfeasor doctor and the husband
iii.Marlene F. v. Affiliated Psychiatric Medial Clinic
1. Parents in a joint counseling program for parents and children
allowed to bring suit for NIED based on a special relationship
to the tortfeasor doctor
iv.Johnson v. State
1. Example how direct victim situation exists for recipients of
misdirected death telegrams
v.Ochoa v. Superior Court - COMPARE
1. In contrast to Molien, Court declined to allowed parents of
abused inmate to sue for NIED since they brought suit as
bystanders, not as direct victims
e. Boyles v. Kerr
i.Ds (guys) make film of girl having sex with her then-boyfriend
ii.Victim brings suit for IIED and NIED but it appears her lawyer
dropped the IIED claim in order to recover under the defendant’s
homeowners’ insurance policy
1. Homeowners’ insurance only covers negligent acts, not
intentional acts
iii.Majority seems to decline to allow plaintiff to structure her suit in
this way when it seems that the IIED claim is stronger than the NIED
claim
1. Concurring opinion suggests that this case is only about going
after the deep pockets
iv.Majority opinion dismisses NIED claim and allows remand for IIED
claim to be renewed
1. However, Kysar notes that the IIED claim is by no means a
sure thing and that perhaps the plaintiff should be allowed to
bring both claims
v.Dissent attempts to define NIED clearly but to also keep it within
homeowners’ coverage
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 1. Dissent argues that NIED would not result in utter chaos, as
the majority claims, if conditioned by four requirements:
a. A duty arising from a special relationship, a statutory
duty, or from the voluntary undertaking of an
affirmative action that puts another at risk
b. The duty be breached by conduct that is reckless,
extreme, or outrageous
c. Resulting psychic harm must be severe
d. Likelihood of such an injury must be reasonably
foreseeable to a reasonably prudent person
vi.This case as an example of how insurance mucks up the clarity of tort
doctrine
1. Also as an example of the vague boundary between negligent
and intentional acts
2. Injury to Personal Relationships
a. Diaz v. Eli Lilly & Co.
i.Wife has valid loss of consortium claim because when her husband
dies she must shoulder the load
ii.Question though of where beyond the spousal relationship do we
draw the line for recoverability for lack of consortium
b. Feliciano v. Rosemar Silver Co.
i.Loss of consortium claim denied because victim and plaintiff had
never married
ii.Kysar thinks this case is too easy, as denial seems proper since the
couple had twenty years to get married
iii.Rule: Unmarried persons who are cohabitants may not recover for
loss of consortium.
c. Borer v. American Airlines, Inc.
i.Children bringing loss of consortium claim for accident to their
mother are denied
ii.Rule: A child cannot recover for the loss of its parent's consortium.
iii.Rationale:
1. Calls the decision a matter of policy and says that the children
can never be compensated for their loss, as money is unrelated
to the loss they suffered
2. Court also relies on the importance of loss of the sex life in a
spousal loss of consortium claim and the problems of
multiplication of actions if children are given this right (since
people can have any number of children, such as the nine
involved here)
iv.but: Kysar - a mother’s duty to her children is not entirely emotional
and can be monetizable in many respects—cooking, cleaning,
education, etc.
d. Kysar thinks that the precarious position of emotional harms within tort law
can be understood to reflect an implicit privileging of one side of the
dichotomy from class over the other, as non-economic damages are given
short shrift (see below Chamallas under Feminist Theory)
i.see dichotomy section
3. Purely Consequential Economic Loss
a. Economic loss rule is an exception to the general rule limiting responsibility
for foreseeable consequences
 i.It is the preeminent manifestation of the great torts-contracts overlap
(GTKO)
b. Barber Lines A/S v. M/V Donau Maru
i.Facts: Oil spill by defendant prevented plaintiff’s ship from docking
at its intended berth, leading to extra costs for the plaintiff
ii.Rule: Damages for negligently caused financial harm are recoverable
only upon a showing of physical injury to the plaintiff or his property.
iii.Reasoning:
1. A real economic loss occurred here but not every kind of
financial harm is recoverable in tort
2. rationale: Court finds that one should not be able to recover
for the ordinary risks that we all suffer by virtue of living in
society.
3. Court cites precedent that even foreseeable negligently caused
financial harms were unrecoverable
iv.Note:
1. there are also positive externalities to oil and that
concentrating all the negative externalities on one party is
inequitable
2. traditional rule that there is no recovery for economic loss, but
also that some exceptions are recognized—accompanying
physical harm, intentionally caused harm, defamation, loss of
consortium (see more p. 341)
v.Court notes that since the circumstances here don’t fall within any
established exception, the plaintiff can not recover
c. J’Aire Corp. v. Gregory
i.Facts: Plaintiff lessee restaurant was closed down while contractor
undertook construction work pursuant to contract with lessor
ii.Issue: of whether contractor was responsible in tort for economic
damages when he breached the contract with the lessor by not
completing work in a timely manner
iii.Idea that the plaintiff was a third party beneficiary to the contract but
only the negligent infliction of economic loss claim was kept on
appeal
iv.Six factors in determining a duty of care
1. Extent to which the transaction was intended to affect the
plaintiff
2. Foreseeability of harm to the plaintiff
3. Degree of certainty that the plaintiff suffered injury
4. Closeness of the connection between the defendant’s conduct
and the injury suffered
5. Moral blame attached to defendant’s conduct
6. Policy of preventing future harm
v.Court establishes a new, broad tort based on whether there should be a
duty
vi.Rule: A contractor must use reasonable prudence to protect the
owner's business from foreseeable damages due to a delay in
completion of the work.
d. People Express Airlines, Inc. v. Consolidated Rail Corp.
i.Train car spilled chemicals and forced the surrounding area to be
evacuated
ii.Plaintiff was a commercial airline that had its business interrupted by
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 this evacuation
iii.Court finds defendant breached duty of care to avoid risk of
economic injury to particularly foreseeable plaintiffs
1. Plaintiff airline falls within this class because they were near
the area
iv.Court establishes the readily identifiable class approach to recovery
for economic loss
1. This represents a trend away from the traditional rule barring
financial damages without physical injury (compare to Barber
Lines).
v.Rule: Purely economic losses are compensable without physical
injury or property damage if the plaintiff is within an identifiable class
of persons whom the negligent defendant knows or has to reason to
know are likely to suffer damages from its conduct.
v.Contributory Fault
1. Contributory Negligence
a. Can be thought of as: (1) the entire affirmative defense against a negligence
cause of action, and (2) as the liability standard
b. Butterfield v. Forrester
i.Defendant left a pole obstructing the highway which the plaintiff
struck
ii.Hold: the court does not allow plaintiff to recover for his damages
since he was riding too quickly
iii.Rationale:
1. Court says one person being at fault won’t dispense another
from taking ordinary care
2. Court seems to fear people being reckless and taking
advantage of the negligence of others in order to recover
iv.Rule: A plaintiff will not be able to recover where his lack of due
care contributed to the occurrence of the accident.
c. Davies v. Mann
i.Plaintiff was negligent for leaving his horse along the highway where
it would not be able to get out of the way of traffic quickly enough
ii.Yet, the court finds the defendant liable for the plaintiff’s loss,
because the defendant came down the highway at “a smartish pace”
and struck and killed the ass
iii.Court’s holding conflicts with Butterfield, but court is seeking to
structure the incentives of the parties
iv.Last Clear Chance Rule – if we think one party is in a position to
observe the actions of the other party or one party acts after the other
party, we want to give the second acting party the responsibility to
avoid the harm
1. See Restatement §479 and §480 (essentially follows the
general rule above)
v.Critique of last clear chance doctrine:
1. Potential problem with last clear chance rule that you are
letting the initially negligent person off the hook
2. Moral hazard created here for the ass owner, since he has a
diminished incentive to take care
3. but: Counterargument that the plaintiff has residual incentives
to avoid harm, since monetary awards don’t make up for
 everything
vi.Last Clear Chance Doctrine butts heads with Contributory
Negligence
2. Assumption of the Risk (AOR)
a. Reasons supporting
i.General fairness—don’t get double recovery
ii.Autonomy—workers choose risk
iii.Wage differential thesis—defer to autonomous decisions based on
value of health and safety standards (risk is part of the bargain)
1. perfectionist support that this actually tries to capture
individual choices
2. practical support that this is the best way to decide
b. Complications with assumption of risk
i.Risk information might be different between parties
ii.Workers don’t always have choice and may not have mobility to
move jobs
iii.there is an argument that externalities should be corrected through
law, forcing a wage difference attributable to risk that replicates ideal
market
iv.Difference in compensation based on race
v.Tort has the capability to look at specific facts of the case
vi.Anderson (article)
1. risks are more complicated and they don’t always consent to
the risk
vii.Voluntary risks are less serious than involuntary
viii.Natural v. technologically imposed risks
ix.Risk imposing harms on future generations
c. Meistrich v. Casino Arena Attractions, Inc.
i.Defendant ice-skating rink departed from usual procedure, i.e.
departed from custom, making the ice more slippery than usual
ii.Issue: whether there was contributory negligence or assumption of
risk here
iii.Court sets aside several understandings of assumption of risk or
waiver of liability
1. Doesn’t discuss an express contract not to sue for injury or
loss or situations where actual consent exists
iv.Court discusses two meanings of assumption of risk
1. Primary – proposition that defendant was not negligent, i.e.
either owed no duty or did not breach the duty owed
2. Secondary – affirmative defense to an established breach of
duty, i.e. plaintiff continued in the face of a known risk
a. Reasonable AOR – Meistrich folds into contributory
negligence and no longer allows
b. Unreasonable AOR – Meistrich is not concerned with
v.Question of whether it was reasonable for the plaintiff to continue in
the face of a known danger—if it was reasonable, plaintiff can
recover
vi.Meistrich court folds reasonable secondary assumption of risk
defense into contributory negligence
1. Note that most jurisdictions and the Restatement do treat
assumption of the risk as a defense separate and distinct from
contributory negligence.
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 2. Under the Restatement (§496A-§496G) assumption of risk is a
defense if the plaintiff either expressly accept a known risk or
if his conduct manifests understanding of the risk and
voluntary acceptance of that risk.
a. A plaintiff does not assume a risk, however, if, as a
result of defendant's conduct, plaintiff has no other
way to avoid the harm.
vii.Court claims that it is eliminating reasonable assumption of risk
defense, but makes clear that it is not referring to actual consent
viii.However, there is still an independent affirmative defense of
assumption of risk that doesn’t depend upon whether it’s reasonable
or not
ix.Rule: Assumption of the risk is not a defense independent of
contributory negligence.
3. Comparative Negligence
a. Comparative negligence tends to fold in last clear chance doctrine and
assumption of risk in order to relax the binary harshness of contributory
negligence
i.“Pure” form – minority rule; allows plaintiffs to recover irrespective
of relative share of fault; usually advanced by judges
ii.“Modified” form – majority rule; establishes a floor below which the
plaintiff cannot recover, for instance 50%; usually advanced by
legislatures
b. Comparative fault regimes differ across states based on how they treat the
bases of liability, intentional wrongdoing of third parties, type of plaintiff
fault, basis of allocation between plaintiff and defendant, calculating the
shares of fault, joint and several liability, contribution, last clear chance,
assumption of risk, punitive damages, and allocation of liability to nonparties
c. Uniform Comparative Fault Act
i.§1 – Defines fault as acts or omissions that are in any measure
negligent or reckless toward the person or property of the actor or
others or that subject a person a person to strict tort liability; includes
breach of warranty, unreasonable assumption of risk, misuse of a
product, and unreasonable failure to avoid an injury or to mitigate
damages
ii.§2(a) – Requires that the court get a clear understanding of what
damages are claimed by the parties as well as to determine the
percentage of the total fault allocated to each party
iii.§2(b) – Nature of conduct and extent of causal relation between the
conduct and the damages claimed are relevant to the percentage of
fault
iv.§2(c) – Parties responsible for fault are initially liable for all damages
under joint and several liability
v.§2(d) – However, parties can later assert rights of contribution against
each other so that each party ends up paying the proportion of the
damages equal to its percentage of the fault
d. Knight v. Jewett
i.Problem with Meistrich approach is that under comparative
negligence you create the possibility that a plaintiff who reasonably
assumes a risk gets nothing and a plaintiff who unreasonably assumes
a risk gets something
 1. Meistrich handles this by saying there is no independent
assumption of risk defense
ii.In contrast to the Meistrich approach, the Knight court folds all
assumptions of risk – both reasonable and unreasonable – into
comparative negligence
1. Give all information to the fact finder who will presumably
allocate less fault to a plaintiff who reasonably assumes a risk
iii.Rule: A participant in an active sport breaches a legal duty of care to
other participants only if the participant intentionally injures another
player or engages in conduct that is so reckless as to be totally outside
the range of the ordinary activity involved in the sport.
vi.Feminist Theory
1. Kysar sees a striking contrast between the law and economics and feminist/critical
legal studies approach
a. Law and economics argues that the rules should be adapted to underlying
goals
b. Feminist theory seeks to alter preferences and raise consciousness by
highlighting power relationships and drawing attention to underemphasized
harms
2. Chamallas, “Vanished from the First Year: Lost Torts and Deep Structures in Tort
Law”
a. Offers both positive and normative lessons
b. Binary comparisons
i.Argues that this privileging of one portion of tort law over the other
has gendered effects
ii.Idea that the dichotomy we discussed in class affects our cognition
and thus our jurisprudence
iii.Laments of lost torts in the first year torts curriculum, including
relational interests (wrongful death, loss of consortium), invasion of
nonphysical interests (NIED), and less exploration of dignitary harms
(battery, assault, but also date rape, sexual harassment, and domestic
violence)
iv.Argues that studying these things results in a discovery of the hidden
bias of tort law
c. Tort hierarchies disproportionately harm women of all races and minority
men and produce a legal regime that provides inadequate protection for the
recurring injuries in their lives
i.This rears up in settlement amounts and damage awards, the
devaluation of emotional harm, the marginalization of relational
injuries, and the privileging of economic over non-economic loss
d. Yet, if we think implicit hierarchies are at work as Chamallas contends, it’s
hard to explain the jurisprudential struggles with economic loss, since
economic loss should be on the privileged side
i.Yet, courts have same problem with economic loss as they do with
emotional loss
3. Bradwell v. State
a. Judge says the women are not fit to be lawyers because of their general
characteristics and thus do not have to be admitted to the bar
b. Idea that there are implicit understandings about women that are at work
which animate jurisprudence
c. Kysar thinks this illustrates the general fear that tort doctrine will be either
explicitly or implicitly biased in its effects on groups such as women
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 4. Bender, “Is the Law Male?”
a. Uses simplistic feminist analysis to expose a result she thinks is ridiculous
b. Looks for latent bias in the reasonable person standard, finding that tort law
is male in its application
c. Argues that male bias has paraded as neutrality and that women’s
perspectives and experiences have been left out of the doctrinal development
and law application in the tort area
d. Uses social science evidence about sexual violence to argue for a particular
result under an existing category of tort (the foreseeability doctrine)
i.Argues that since rape is foreseeable in women’s lives in general it
was foreseeable that a key falling into the wrong hands could result in
the rape of a woman in her apartment
e. Interesting how she seeks to change how the law is applied rather than to
change the law itself, making her task as she sees it easier (although still
difficult)
5. Wassell v. Adams (Posner opinion)
a. Case involving woman raped in cheap motel, who at trial was found by jury
to have been 97% responsible for her rape and the motel only 3%
b. Very high standard of consideration for the appeals court—abuse of
discretion
i.Question for the court is whether a rational jury could have found this
proportion of fault (not whether the court agreed with this allocation
of fault)
ii.difficult decision to overturn
c. Comparative negligence according to Posner means each party had some B <
PL he could have taken to avoid the harm
i.Posner discusses how motel’s B of providing a security guard
wouldn’t have been efficient here
ii.However, it must be recognized that providing one B may affect
multiple PLs, i.e. guard could prevent rapes but also robberies and
murders
d. Matsuda would argue here that since the rapist wasn’t deterrable we would
want to deter those actors who might be able to change the broader social
problem, such as the motel
i.why isn’t the rapist deterrable? not caught?

V. Trespass to Land and Nuisance

1. Trespass
a. At early common law, an action for trespass would lie for unauthorized entry, either by person or
thing, upon another’s land directly resulting from a volitional act
i.Strict liability existed for all harm resulting from the entry, however unforeseeable, and
continuous trespasses could be enjoined
b. Later, a distinction between direct and indirect trespass developed
i.Trespass – entries resulting directly from defendant’s conduct
1. Strict liability for intentional intrusions
ii.Trespass on the case – entries resulting indirectly from defendant’s conduct
1. Liability only for recklessness, negligence, or engaging in an extrahazardous activity
for unintentional intrusions
c. Trespass is limited by privileges, such as the privilege of private necessity, that imposes a duty on
land holders to refrain from committing batteries upon would-be trespassers
d. Now, a trespass must have occurred by way of some physical, tangible agency and must have been
 unauthorized and intended by the defendant or caused by the defendant’s recklessness, negligence,
or engaging in an extrahazardous activity
i.Remedy of at least nominal and perhaps actual damages as well as injunctive relief
2. Nuisance
a. Public nuisance – an unreasonable interference with a right common to the general public
(Restatement §821B)
i.Requires that in order to recover an individual have suffered a harm that is different in kind
than that suffered by the general public (Restatement §821C)
b. Private nuisance – a non-trespassory invasion on another’s interest in the private use and
enjoyment of land (Restatement §821D)
i.Can recover for an invasion that violates private use and enjoyment and is either (a)
intentional and unreasonable, or (b) unintentional and negligent, reckless, or abnormally
dangerous (Restatement §822)
ii.An intention invasion is unreasonable if (a) the gravity of the harm outweighs the utility of
the actor’s conduct (essentially B<PL), or (b) the harm caused by the conduct is serious and
the financial burden on the actor would not make continuation of the conduct infeasible (D
can afford to compensate) (Restatement §826)
1. Gravity of harm is determined by: (Restatement §827)
a. extent and character of the harm,
b. social value attached to the type of use or enjoyment invaded,
c. the suitability of that use or enjoyment to the locality,
d. and the burden on the person harmed of avoiding the harm
2. Utility of conduct is determined by: (Restatement §828)
a. social value attached to the primary purpose of the conduct,
b. the suitability of that conduct to the locality,
c. and the impracticability of preventing or avoiding the invasion
3. Intentional invasion is unreasonable if the harm resulting is severe and greater than
one should be required to bear without compensation (Restatement §829A)
3. Judicial Applications of Substantive Law
a. Peters v. Archambault
i.House of defendant encroaching on land of plaintiff ordered removed by injunction
ii.Court refuses to find an exception to the general rule, granting an injunction even though
invasion is classified by the court as an unintentional and negligent trespass (indirect)
1. Does so even though the court can refuse to grant an injunction in exceptional
circumstances, which include:
a. an innocent encroachment,
b. where the cost of removal is greatly disproportionate to the intrusion,
c. or where an injunction would be oppressive or inequitable
2. If this doesn’t qualify as exceptional circumstances then what does?
iii.Court performs no social balancing in making its decision
iv.Idea that the injunction will be used as a bargaining chip in negotiations and that the house
won’t actually be removed
v.Rule: A landowner is entitled to mandatory equitable relief to compel removal of a structure
significantly encroaching on his land, even though the encroachment was unintentional or
negligent and the cost of removal is substantial.
b. Adams v. Cleveland-Cliffs Iron Co. (pollution case)
i.Mine emitting airborne particulates, noise, and vibrations onto neighboring property
ii.Court holds that this invasion is a nuisance, not a trespass as sought by the plaintiffs,
because the court desires to balance harm versus utility (which could not be done under the
traditional form of trespass)
1. Finds that the pollution is intangible, despite the particulates in the air
iii.Rationale:
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 1. Adams court thinks it is important to hold up the bounds of the traditional notion of
trespass by refusing to allow a non-physical invasion to become a trespass
a. Idea that trespass is a more powerful weapon for the plaintiff than nuisance
2. Recognizes the slippery slope problem posed by particulate matter
iv.Rule:
1. Most jurisdictions follow this lead and define pollution as a nuisance, not a trespass
2. The law of trespass does not cover airborne particulate, noise, or vibrations. These
irritants are considered a nuisance.
c. Davis v. Georgia-Pacific Corp.
i.Differs from Adams in that it regards invasion committed by particulates as a trespass
(opposite rule from above)
1. Finds particulates to be tangible
ii.Rationale:
1. Says that the social value of a defendant’s conduct cannot be considered under
trespass
2. However, comes up with a different safety valve (at the remedy stage) by saying that
it is up to a judge to decide if this is trespass as a matter of law, if an exception
applies, and if there should be injunctive of other relief
iii.Note: this decision destabilizes injunction as a remedy for trespass since an injunction is no
longer the norm for trespass
iv.Rule: In an action for damages for trespass, a plaintiff's right to recovery may not be
determined by weighing the utility of defendant's conduct against the rights of plaintiff to
enjoyment of his property.
d. Waschak v. Moffat
i.Defines the pollution as unintentional and reasonable since it came from a customary use of
land (storing coal refuse on land in a town)
ii.Rationale:
1. Along with Adams, Waschak says that substantial certainty that something will
happen is not enough to make the act intentional
2. In contrast with Jost, Waschak finds that if the cost-benefit analysis tips towards the
defendant, there is no liability absence an intent to injure the plaintiff
iii.Rule: Where the utility of a defendant's conduct outweighs the gravity of harm it causes,
and plaintiff's injury did not result from defendant's intentional conduct, no liability may be
imposed for the maintenance of a nuisance.
e. Jost v. Dairyland Power Cooperative
i.Grants relief for nuisance, even without a cost-benefit analysis.
1. c.f. Waschak
ii.Finds that the sulphurous fumes emitted by defendant were intentional and that the injury
inflicted was sufficiently substantial that would not be justified by the social utility of the
defendant’s activity, no matter how great
1. but note that this case concerned damages, not an injunction
iii.Rule: (1) In an action for damages for nuisance, defendant's exercise of due care is
irrelevant if he was aware that his conduct would cause an invasion of plaintiff's property
rights. (2) In an action for damages for nuisance, a court may not balance the utility of
defendant's conduct against the gravity of the harm inflicted.
f. Note: Waschak’s cost-benefit analysis and Jost’s no cost-benefit analysis approaches are both
minority rules as the majority rule is the “reasonableness” test
g. Boomer v. Atlantic Cement Co.
i.Overview:
1. Cement factory that emits dirt, smoke, and vibrations onto neighboring land moves
in among residents in an area
 2. Fairness favors the residents (they were there first) but efficiency favors the polluter
(valuable plant – jobs, etc.)
ii.Court finds a nuisance and grants an injunction that expires after the factory pays objective
measures of damages to the residents
iii.rationale: Court thinks it is dealing with a factory with net positive externalities
1. However, relevant idea in both Boomer and Spur that the net externalities of an
enterprise can go from positive to negative, and vice versa, over time
iv.Rule: In an action to abate a nuisance, a court may award permanent damages in lieu of an
injunction where there is a marked disparity in economic consequences between the effect of
an injunction and the effect of the nuisance.
h. Spur Industries, Inc. v. Del E. Webb Development Co.
i.Long-standing cattle feedlot that emits noxious and harmful odors comes to be surrounded
by a residential development
ii.Fairness favors the polluter (residents moved to the nuisance) but efficiency favors the
residents (want to have retirement communities)
iii.Court wants to eliminate feedlot, but is worried about fairness as the residents “came to the
nuisance”; issues an injunction against the feedlot but requires the plaintiff to indemnify the
feedlot for its costs of relocating (Restatement §840D)
iv.Court thinks it is dealing with a feedlot with net negative externalities
v.Rule: Although the operation of a business, lawful in the first instance, but which becomes a
nuisance by reason of a nearby residential area, may be enjoined in an action brought by the
developer of the residential area, the developer must indemnify the business for a reasonable
amount of the cost of moving or shutting down.

VI. Products Liability

1. Overview
a. Two Types of Accidents
i.Preventable – accidents that can be cost-justifiably prevented through care-level
investments; B<PL
ii.Unpreventable – accidents that cannot be prevented; B>PL
b. Care-Level Effects v. Activity-Level Effects
i.Care-level effects – effects based on how much care each party takes, holding activity-level
constant
ii.Activity-level effects – effects based on how frequently each party undertakes an activity,
holding care-level constant
c. Deterrence Goals of Product Liability
i.An efficient product liability system would:
1. Encourage parties to take the efficient level of care, i.e. encourage parties to avoid all
preventable accidents
2. Encourage parties to cease an activity when the marginal benefits are outweighed by
the marginal costs
d. Possible Liability Standards
i.Absolute Consumer Liability
ii.Negligence – manufacturer liable for injuries only if the manufacturer had some B<PL
iii.*Strict Liability
1. *Has different meaning here in the products liability context than elsewhere
2. Here, strict liability is limited to manufacturer liability for “defective” products, with
“defective” here meaning something very close to negligence
iv.Absolute Manufacturer Liability
e. Mutability Question – should we let manufacturers and consumers contract out of the default
liability standard?
f. The Products Liability Revolution (1960s-1980s)
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 i.Imperfect Consumer Information – holding manufacturers strictly liable would force them to
take cost-justified investments in care or precautions, but also to make the price of a product
include its full cost (i.e. its externalities)
ii.Exploitative Manufacturer Market Power – bargaining in the market is nearly impossible
and there is concern that manufacturers will unilaterally force unfair terms on consumers
iii.Only Manufacturers are Preventable and Deterrable – manufacturers are responsible for
bulk of accidents that happen as a result of product use and therefore manufacturers should
bear the brunt of the cost of those accidents
iv.Risk-Spreading is Desirable for Unpreventable Accidents – idea of using the market as a
rough-and-ready insurance system, with the manufacturer in the position to take the extra
cost of accidents and spread it out among all the users of the product
g. The Products Liability Counterrevolution (1980s-late 1990s) – liability insurance crisis
i.No empirical evidence that consumers don’t have adequate information
ii.Competition among manufacturers will solve many of the problems feared
iii.Consumers are preventable and deterrable (bilateral accident context) and the threat of
moral hazard may be quite real here
iv.Using tort system to make an insurance system fails to account for administrative costs of
doing so and is also an undesirable move
2. Liability for Manufacturing Defects
a. Doctrinal Theories of Liability
i.Negligence
1. Winterbottom v. Wright
a. Court found that a prerequisite to products liability was privity of contract
between the consumer and the manufacturer, i.e. no liability absent some
direct contractual relationship
2. MacPherson v. Buick Motor Co.
a. Eliminates privity rule of Winterbottom
b. Finds duty of manufacturers directly to customers even without a direct
contract based on a theory of negligence
c. Rule: The manufacturer of a finished product owes a duty of care and
vigilance to the user of that product, even where the user is not the immediate
purchaser, if such use is reasonably certain to place the user in danger when
the product is negligently made.
3. Escola v. Coca Cola Bottling Co.
a. Traynor in his concurrence argues for the notion of strict liability for product-
caused accidents
i.Creates an irrebutable presumption that a defective product is strictly
liable
4. Greenman v. Yuba Power Products
a. Traynor in the majority this time announces strict liability standard for
defective products
ii.Breach of Warranty
1. Henningsen v. Bloomfield Motors, Inc.
a. Implied warranty line of analysis under contract law that reaches the same
conclusion for products liability as does the tort law analysis
b. Idea that the customer can sue on the warranties directly to the manufacturer
c. Rule: When a manufacturer and a dealer put a new automobile in the stream
of trade and promote its purchase by the public, an implied warranty that it is
reasonably suitable for use as such accompanies it into the hands of the
ultimate purchaser, despite any contractual provisions to the contrary.
d. See UCC §2-314.
 iii.Strict Liability in Tort
1. Vandermark v. Ford Motor Co.
a. An automobile manufacturer is strictly liable when someone is injured as a
result of a defect that was present in the car it manufactured when the
manufacturer's authorized dealer delivered it to the purchaser
b. An automobile dealer is strictly liable in tort for personal injuries resulting
from defects in cars it sells
c. Manufacturer strictly liable in tort because it placed the car on the market
knowing that it was to be used without inspection for defects, that it did
indeed have a defect, and that the defect caused an injury
i.Who provided the component part that may have been defective was
irrelevant
d. Rule: An automobile manufacturer is strictly liable when someone is injured
as a result of a defect that was present in the car it manufactured when the
manufacturer's authorized dealer delivered it to the purchaser. An automobile
dealer is strictly liable in tort for personal injuries resulting from defects in
cars it sells.
b. Affirmative Defenses Based on Plaintiff’s Conduct
i.Murray v. Fairbanks Morse
1. Court finds that unreasonable assumption of risk is a valid, separate defense in a
strict liability action
2. Idea that some products, such as swimming pools, have some risk but that it is
reasonable for consumers to assume this risk
3. Rule: A plaintiff's comparative fault which is a cause in fact of his injuries may allow
a proportionate reduction in his recovery even where the award is based upon the
strict liability of the defendant.
c. Second Restatement §402A
i.Prosser serving as the reported announced rule based only on Greenman and Vandermark
(see above)
ii.First and most obvious example that the ALI had changed its goal from being a passive
restater of the law who recognized norms to a more active synthesize of the law establishing
norms
iii.Manufacturer liable even if the seller exercises all possible care
1. This sounds like true strict liability, but remember that it is limited to products in a
defective condition that are unreasonably dangerous to the user
iv.Removes manufacturer’s liability from the law of sale (like Henningsen) and removes the
privity barrier (like MacPherson)
v.Through case law, §402A evolved into three categories
1. Manufacturing defect – easiest; when the product departs from the manufacturer’s
own design for it
a. Strict liability
2. Warning defect – manufacturer failed to provide a warning or instruction
a. Strict liability, but manufacturer can remove its liability to the negligence
category by providing a warning; see below
3. Design Defect – hardest; see below
vi.Contributory negligence is not a defense to a products liability claim, but assumption of risk
and misuse are defenses (see Murray above)
vii.Basic approach is that the product has to be in an unreasonably dangerous state
1. Wade test – seven factor, all things considered, macro-balancing approach to decide
if a product is in a defective condition
2. Exception for when a product is inherently unreasonable
a. Some products like whisky and tobacco are inherently dangerous and thus
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 can’t be a defective product under §402A unless they differ from their normal
state
3. Comment i – the rule stated in this Section applies only where the defective
condition of the product makes it unreasonably dangerous to the user or consumer
a. Idea that products that have a known danger aren’t defective, i.e. alcohol
4. Comment j – complying with warning requirement defaults to absolute consumer
liability; warnings are exculpatory
d. Third Restatement
i.Looks at functional categories, not doctrinal terminology, seeing implied warranty and tort
claims as one unit
ii.§1 – anyone selling or distributing products who sells or distributes a defective product is
subject to liability for harm to persons or property caused by the defect
iii.§2 – sets up three distinct categories of product defects – manufacturing, design, and
warning
1. Offers reasonably alternative design (RAD) in §2(b)
2. Offers manifestly unreasonable design (MUD) in §2, comment e
a. Idea that some products are so ridiculous that even as properly designed that
are defective, i.e. an exploding cigar
b. To be a MUD, product must have low social utility and an extremely high
degree of danger that so outweighs its social utility that no reasonable person
would use the product
3. Offers product warning in §2(c) – product defective if foreseeable risks of harm
posed by the product could have been reduced or avoided if reasonable instructions
or a warning had been provided
4. §2, comment i – adoption of reasonable safer design is still required even if a
warning is given; manufacturers must still comply with design defect liability
iv.§3 – sets up a res ipsa loquitur cause of action for products liability
1. Inference of a product defect when incident that harmed the plaintiff (a) was of a
kind that ordinarily occurs as a result of product defect, and (b) was not, in the
particular case, solely the result of cause other than product defect existing at the
time of sale or distribution
v.§8 – for assigning shares of legal responsibility look to the nature of the person’s risk-
creating conduct and the strength of the causal connection between the person’s risk-
creating conduct and the harm
vi.Argument that (Wade – comment i) of Second Restatement §402A is equal to Third
Restatements RAD + MUD
vii.Under the Third Restatement, usually the plaintiff must show RAD in order to recover, but
it’s not needed if there’s MUD or res ipsa
3. Liability for Failure to Instruct or Warn
a. Sheckells v. AGV Corp.
i.Motorcycle manufacturer sued after accident on plaintiff’s theory of the case that the helmet
isn’t as good as the average consumer expects or as the manufacturer advertises
ii.Issues:
1. how to prove what the ordinary consumer expects
2. the adequacy of manufacturer warning or if plaintiff would have obeyed it even if he
read it
iii.heeding presumption: that plaintiff would have read the warning and heeded it
iv.Rule: There is no duty resting upon the manufacturer or seller to warn of a product-
connected danger which is obvious or of which the person who claims to be entitled to a
warning knows, should know, or should, in using the product, discover.
4. Liability for Defective Design
 a. McCormack v. Hankscraft Co.
i.Facts:
1. Toddler disfigure when boiling water spilled out of vaporizer
2. Cap of vaporizer reservoir was not attached in order to let steam escape
ii.Then, plaintiff was required under the Third Restatement to offer a reasonable alternative
design (RAD)
1. This would mean a design that is safer and that wouldn’t be more expensive
2. Expert testified that it would be possible to design a cap that fit tightly and which
still let steam escape
3. Even though this design was customary in the industry, this fact was not sufficient as
the entire industry may have unduly lagged (see Carroll Towing – this is why we
don’t always defer to custom)
iii.Now, we have Third Restatement §2, comment f, idea that we have to evaluate the overall
safety of a product
1. If the new design proposed by the plaintiff has equal or greater risk, it may be
insufficient to get to a jury
iv.Rule: If a manufacturer knows or should know that the use of its product involves danger
not obvious to the consumer in the use of the product, and the manufacturer fails to warn
consumers of that danger, the manufacturer has violated his duty of due care to the
consumer.
v.See UCC §2-313.
b. Troja v. Black & Decker Manufacturing Co.
i.Applies the Wade test, which analyzes the reasonableness of a manufacturer’s design in a
seven-factor balancing test
1. Wade test – gives litigants an ability to talk about the product as a whole, not just
how we could have designed it differently
a. Usefulness and desirability of the product
b. Safety aspects of the product
c. Availability of a substitute product which would meet the same need and not
be as unsafe
d. Manufacturer’s ability to eliminate the unsafe character of the product
without impairing usefulness or making it too expensive to maintain its utility
i.note: this is basically RAD
e. Users ability to avoid danger by the exercise of care in the use of the product
f. User’s anticipated awareness of dangers inherent in the product and their
avoidability because of general public knowledge or suitable warnings or
instructions
g. Feasibility of the manufacturer spreading the loss by setting the price of the
product or carrying liability insurance
2. Important to note that RAD is included in Wade, but that Wade allows much more to
come into play
3. Idea of Wade as macro-balancing and RAD as micro-balancing
a. This is similar to the macrobalancing in B<PL and the microbalancing in
nuisance
ii.Rule: For a personal injury plaintiff to state a prima facie defective design case, evidence
that a reasonable alternative exists must be presented.
c. Heaton v. Ford Motor Co.
i.Pickup truck hit a five inch rock, which damaged the wheel assembly, while traveling at
highway speeds
ii.Challenge of how a layman could reasonably determine if a truck should be able to
withstand such an impact
iii.Court here notes that the jury has no qualifications or factual evidence to judge for
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 themselves
1. Court suggests experts might be needed to inform the jury
2. However, then it would not be the assessment of the ordinary consumer
iv.Consumer expectations here under the Second Restatement §402A would be like res ipsa
loquitur in the Third Restatement, while experts testifying would be like RAD in the Third
Restatement
v.Argument that the methodology here is no different in practice than res ipsa plus risk-utility
analysis
vi.Rule: Where a product fails in circumstances not within the normal experience of a jury, a
defect must be proven by evidence of what the reasonable expectations regarding the
product are.
d. Soule v. General Motors Corp.
i.Driver-side floorboard of car was crushed inward during an accident
ii.Court offers a test for design defect based on the consumer either showing failed
expectations or that an excessively dangerous and preventable products does not have
benefits outweighing its danger
1. This is not RAD though, as the burden is on the defendant to systematically show the
there is no RAD
iii.A substantial minority of courts have adopted this approach and have continued it even
after the Third Restatement
1. One could try to harmonize this approach with the Third Restatement by arguing that
consumer expectations is so minimal that it is probably functionally the same as res
ipsa
2. Two approaches
a. Consumer expectations is the same as res ipsa and is rebuttable by risk-utility
evidence
b. Consumer expectations overlaps with risk-utility analysis in a Venn diagram
with res ipsa in the overlapping space, meaning that consumer expectations is
rebuttable only by consumer expectations
iv.Rule: In establishing liability for a design defect in a complex product, the standard is the
"excessive preventable danger" test, i.e., that the risk of danger in the design outweighs the
benefits of the design.
v.Green v. Smith & Nephew AHP, Inc., contra Soule, holds that consumer expectations test
remains valid and is not limited to non-technical products
1. Risk and utility are relevant, but what concerns us is what risk means to consumers,
not to experts
e. Vautour v. Body Masters Sports Industries, Inc.
i.Plaintiff injured in leg press machine when it malfunctioned despite two safety stops
ii.Sense in which consumer expectations are important in determining if a product is
dangerous to an extent beyond that contemplated by the ordinary consumer
1. Jury makes a normative judgment about what a normal person’s understanding
would be
iii.Court says that it’s impossible for judges and juries to comprehend a RAD
1. Idea that this would make it difficult for them to apply a RAD
iv.Rule: A reasonable alternative design is not an element that has to be proven by a plaintiff
in a cause of action for defective design, but rather it is just one factor to be considered in
the risk-utility analysis. The risk-utility analysis is done to determine whether the design of
the product created a defective condition unreasonably dangerous to the user. Whether the
product was unreasonably dangerous is one of four elements that must be proven in such an
action.
1. To prevail on a defective design products liability claim, a plaintiff must prove four
 elements:
a. the design of the product created a defective condition unreasonably
dangerous to the user;
b. the condition existed when the product was sold by a seller in the business of
selling such products;
c. the use of the product was reasonably foreseeable by the manufacturer; and
d. the condition caused injury to the user or the user's property.
f. Slovic, “Trust, Emotion, Sex, Politics, and Science”
i.Overview of body of psychological literature concerning how people deal with risk and how
their views differ from the technocrat perspective
1. Question of whether distributive justice should be smuggled into the courts through
definition of risk and design defects
ii.Idea that consumers conflate risk and benefit – they associate lots of benefit with low risk
and not much benefit with high risk
1. However, the actual pattern is high risk, high benefit and low risk, low benefit
iii.Social values play a role in risk perception and risk acceptance as risk is inherently
subjective
1. Individuals take into account factors such as uncertainty, dread, catastrophic
potential, controllability, equity, and risk to future generations in the risk equation
2. Experts, purporting to offer objective measurements of risk generally equate risk
with expected mortality
iv.Assessments of risk vary by gender, race, and income level
g. Kysar and Hansen – claim that we need box 8 in product liability – enterprise liability – absolute
manufacturer liability
i.If you put in place true product liability irrespective of fault, warning, or design defect you
can imagine an industry, faced with the bottle/can choice, coming into the market with a can
but also you could imagine a manufacturer that uses his advertising ability to get consumers
to use a cup, thus giving us our most efficient option

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Policy Analysis and Theory:

1. The Overview of Tort Law

a. Alternatives to Tort Law
i.Insurance
1. private insurance
a. first-party insurance - purchase to cover harms you suffer (e.g. fire, life)
b. third-party insurance – purchase to cover yourself when you harm someone
else (e.g. liability, auto, etc.)
2. Public Insurance (e.g. worker’s comp, social security, 9/11 fund, etc.)
ii.Statutory Law
1. rights of action/compensation created by statute (e.g. Title VII – discrimination)
2. but: statutes can also take away causes of action (e.g. tort reform); less compensation
iii.Criminal Law
1. some intentional torts are also crimes
2. crim does not provide compensation directly to the victim; $ goes to state
iv.Claims Facilities or Funds
v.Non-litigation dispute resolution (ADR)
1. less formal resolution methods (arbitration, mediation, etc.)
2. See Shasta supplement – “being good neighbors means no lawsuits”
vi.lumping it: bearing ones own loss
b. Goals of Tort Law
i.Compensation for Injuries
ii.Justice
1. Corrective Justice – traditional theoretical justification for tort law
2. Distributive Justice – tort law redistributes wealth throughout society, make things
more equitable.
a. critique: if redistribution is the goal there are far better ways to do it than tort
law.
b. e.g. tax and transfer (income tax and welfare) is more efficient
c. tort law will only redistribute sporadically and inefficiently; do it through
legislation, not through the courts.
3. but: received wisdom is that justice goals have no place in tort law.
iii.Efficiency:
1. Overview and Goals:
a. law and economics movement – increase efficiency is the goal
b. minimize the cost of accidents – both preventing accidents (taking
precautions) and providing insurance/compensation for those accidents that
cannot be prevented.
2. recent movement is to retreat from broad tort law; use economic arguments to argue
that people already have the insurance that they want; tort law shouldn’t provide
extra
iv.Insurance or Compensation
1. scholars now think tort law is undesirable and inefficient as an insurance system (see
above)
2. reduces incentive for Ps to take care (creates moral hazard problem)
v.Deterrence
1. provide incentives for people to change their behavior
2. rational people realize that tort liability imposes a cost; alter their behavior (prevent
harm) up to the point of economic efficiency
3. note: deterrence is now often seen as the only desirable goal of tort law.
 c. Four Important Doctrinal Dimensions
i.Liability Standard – when does D pay (negligence? strict liability? recklessness?)
ii.Mutability Standard - when can you opt out of the background liability scheme and pick a
different liability standard (e.g. through K)?
iii.Causation Dimension - did D’s conduct cause the harm?
iv.Damages Dimension – what is measure of damages (punitive, etc)?
d. Continuum of Liability Standards
i.Absolute P Liability (no D liability)
1. D is never liable
2. e.g. no duty rules; D causes a harm but court rules no duty to prevent that harm.
ii.Fault-based liability
1. P must show both harm and some sort of fault
2. e.g. negligence, D failed a standard of reasonable care, intentional harm, etc.
iii.Strict or Absolute Liability
1. D is liable for all harms irrespective of care; no regard to fault in the situation
e. Continuum of Culpability (Most Culpable to Least)
i.Intentional Torts
ii.Reckless Torts
iii.Negligent Torts
iv.Strict Liability
2. LAW AND ECONOMICS
a. History and Overview
i.Explain as a positive matter why the laws of tort are the way they are
1. Common law based on efficiency rules even if not explicitly
ii.Yet we came up with a set of assumptions that Carroll Towing didn’t get the efficient
outcome
iii.Shift into a normative approach
1. not saying the law is efficient, but it should be.
iv.Instead of approaching positively, approach normatively.
b. Basic Terms:
i.Pareto Efficiency – exhaustion of voluntary gains from trade
1. rule is pareto superior (or pareto efficient) if it makes one person better off and no
person worse off.
ii.Kaldor-Hicks – ensure that a particular policy move will guarantee that the gains to the
winners will outweigh the losses to the losers; the pie has been made bigger. a necessary
condition for pareto efficiency.
1. Kaldor-Hicks is also described as potential pareto efficiency – demonstrate that the
overall utility is increased; but there is no requirement that this increase in value is
actually distributed.
2. it is enough just to get the extra money on the table. for it to actually be Pareto-
efficient the money must then subsequently be distributed to the individuals.
c. Analysis to apply to tort law
i.Should we have property or tort rules—should we have liability rules at all?
1. Coase
a. If transaction costs are low, perhaps tort law should stay out of it
i.Let parties bargain on subjective valuations
b. When tort law steps in and imposes a liability rule, we think it is helping
parties achieve a desired outcome
c. But there is risk
i.Coase flips right-responsibility dyad
1. Try to identify A and B as being in a binary relationship with
each other
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 2. Not much traction out of the idea
ii.No longer in trespass where we can attach legal responsibility to
particular kinds of unlawful acts
iii.Everything is reciprocal and it is harder to make judgments about
rights
2. Transaction costs
a. We can identify the culpable party under assumptions
b. But in a crowded world it is much more difficult to identify.
c. Transaction costs could be much higher in real world.
d. This is crucial because it divides our intellectual distinction about whether
tort law should be involved
3. Distribution
a. Defining what is efficient assuming the present distribution
b. All of that is assumed as given
c. There might be reasons to think that the law ought to be more broadly
structured.
ii.Are they preventable?
1. some efficient b < pl that they could take?
2. Can they act in a way that is cost justified?
3. If so, then we will say that the party’s action is preventable
iii.Are they deterrable?
1. Will tort law have an effect on their behavior
a. Tort law ineffective?
i.Maybe they have insurance or are judgment proof.
ii.Some of these problems might be overcome through tort law
1. Parties will invest in acquiring knowledge about risk
2. Insurance companies could monitor conduct they will insure
b. tort law redundant?
i.If we already think there are systems that work and deter behavior
perhaps we don’t think tort law should apply.
ii.Non-tort reasons as to why they might take care based on non-
pecuniary measure?
1. No amount of tort law could be commensurable with the loss
of the limb
iv.For tort law to have a role, we think we need to have both of these.
1. Need some sort of care (preventable)
2. Need to be affected by tort law (deterrable)
v.Now look to different kinds of accident contexts
1. Nonlateral – no one involved is both preventable and deterrable
a. In this situation, liability rule will need to be picked on some consideration
other than efficiency
i.Such as insurance
b. Some would say we should impose no liability in order to avoid
administrative costs
i.If tort law isn’t going to help, keep it out of it
2. Unilateral – only one party is both preventable and deterrable
a. We saw in Mills & Mines that we might want to adopt a no hand rule
i.Rule 1 or Rule 6 would do this
b. Rule 2 and 5 would also lead there (we saw in Mills & Mines)
i.However, this would be at greater administrative costs since we’d
have to apply the Hand rule
 c. However, we might also be concerned about externalities
i.Might not be proper to take into account only negative but not
positive externalities
ii.This is a counterargument to saying that the party failing to take care
should be liable regardless
3. Bilateral – things get more complicated here – case like the Barge & Tug; two parties
whose behavior matters and affects the maximizing behavior goal; need to discipline
behavior of both parties
a. Diagonal Factors – could first look at care levels
i.Rules 2, 3, 4, & 5
1. Rules 2 & 4 have plaintiff in no-no box
2. Rules 3 & 5 have defendant in no-no box
ii.If we think one party is going to be a second-mover and be able to see
if the other party is negligent, we may want that party to be in the no-
no box for us to achieve our best world
iii.Perhaps they aren’t moving sequentially, but one party’s behavior
matters much more; one party affects efficiency loss in a much greater
manner
1. tug owner had a greater net loss than the bargee when he
failed to take care
a. If you had to pick which party to give the stronger
incentive to avoid negligence, you might want to pick
the party who has a greater effect
2. Dominant strategy was when what the other party did didn’t
matter
3. If we think that one party’s behavior matters more, that might
be a reason to give them a dominant incentive to take care
b. Horizontal Factors – choice of liability rule affects when both parties have
taken due care; the yes-yes box
i.Such as:
1. Rules 2 & 3 have plaintiff in yes-yes box
2. Rules 4 & 5 have defendant in yes-yes box
ii.How do we choose?
1. Court could think that I’m wrong even though I decided both
parties were careful
a. If this were so, judge could conclude that the activity
level matters, even though they took care
b. Will always be negative externalities from the activity,
even though they acted with care
c. Would put this party in the yes-yes box to give them
incentives not only to think about how carefully they
act but also whether they should do it at all
2. Court could think I’m wrong because my B<PL analysis
missed something important
a. Maybe there are reasons that a particular party could
come up with some care level adjustment that could
lower accident costs cost-justifiably, although we can’t
prove it
b. If this were so, maybe that party should be in the yes-
yes box
c. Still questions of whether one party has better
information, access to insurance, subject to non-tort
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 system of deterrence, etc.
iii.We might be right that both parties took due care, so that there is
nothing more we can squeeze out of it
1. If this is so, we should pick the rule that serves the insurance
goal the most
2. If one party is more averse to risk, if it is more costly for that
party to bear the loss, the court should pick the liability rules
that put the other party in the yes-yes box
a. The other party can insure against the event at a lower
cost
i.Perhaps they are risk neutral
ii.One party may be a self-insurer and spread the
risk through all its transactions
iii.If the other party is not a repeat player, they
will have to get access to a pool to insure him
iv.The transaction costs from achieving access
may make it more costly
b. Administrative costs likely swamp these insurance
costs in reality
c. Vertical Factors
i.Such as:
1. Rules 2 & 5 versus Rules 3& 4
ii.Choice of applying two hands or one hand
1. Rule 3 only asks if plaintiff was negligent
2. Rule 4 only asks if defendant was negligent
4. Split-lateral – maybe one party is preventable but not deterrable and the other party
is deterrable but not preventable
a. Penalty Default – can force information from one party to another
i.force doctor who is preventable to give information to patient who is
deterrable so that the patient can be informed against the risk
1. State Farm – party that has STD ought to be held liable for
failing to disclose it
b. Can think of as kind of combination between Rule 1 and Rule 6
i.we apply Rule 6 unless you comply
1. If you comply we apply Rule 1 and require no liability
c. Could also do it as Rule 6 followed by Rule 2 to keep negligence a factor
following compliance
i.Suppose person is allergic; patient would know but company making
drug wouldn’t know
1. We hold the company liable unless they fully disclose the
allergic potential
2. However, we may still want to hold the company liable, even
if they disclose, if there was some B<PL that could have
eliminated the allergic potential altogether
a. We do this because we know it’s an imperfect world
and not all allergic people will be informed
b. We want some liability rule backing up the disclosure
rule
d. Criticism of law and econ model
i.traditional common law freedom has been constrained by statutes
1. that said, judges are quite ingenious at wriggling out of the constraints on their
 freedom
ii.will look at other ways
1. feminist tort theory
a. law and econ may be efficient but might not note all externalities
i.use feminist theory as an aid
e. Posner, Economic Analysis of Law
i. General/foundational work of law and economics
ii.Idea that economics drives tort law and that tort law has evolved to achieve economic
progress
iii.Kysar does not buy this
f. Coase, “The Problem of Social Cost”
i.Coase emphasizes that it is not enough to think of right-duty dyads like classical legal
approaches do, as broadening to more difficult contexts like pollution makes it harder to
identify injurer-victim
ii.Idea that harms are reciprocal and that the injurer is being harmed when forced to refrain
from engaging in an activity;
1. This is a legal realist move that expands dramatically the normative field one sees in
the construction of legal rules
iii.Coase underscores that legal rules are involved in the parties’ negotiations and are subject
to exchange like other goods
1. This puts us in a frame of thinking about law in instrumental terms, where its one
more variable in a complex system of interactions
2. Thus, when we construct a legal rule we think about how it will affect the parties
going forward, not just about what happened before
g. Calabresi and Melamed, “Property Rules, Liability Rules, and Inalienability”
i.Provide a nice, basic way to think about property and liability standards
ii.These rules bridge the GTKO and GTPO and give us a language to think about them
simultaneously
iii.Two questions courts ask when allocating rights and entitlements
1. To whom should the entitlement be given?
2. What form of protection should the entitlement receive?
iv.Two types of protection
1. Property rule – property protected to extent that someone who wants to remove the
entitlement from its owner must pay the owner an amount he agrees to voluntarily
2. Liability rule – someone may destroy the initial entitlement if he is willing to pay the
objectively determined value for it
v.Look at entitlements which can be based on economic efficiency, distributional preferences,
and other justice considerations
vi.Idea that whenever society choose an initial entitlement it must also determine whether to
protect the entitlement by property rules, by liability rules, or by rules of inalienability
vii.Talk about four rules in the context of pollution
1. Entitlement to be free from pollution protected by a property rule
a. Polluter could enjoined by pollutee
b. If polluter could avoid or reduce costs of pollution more cheaply than the
pollutee
2. Entitlement to be free from pollution protected by a liability rule
a. Polluter pays pollutee damages only—would occur only if polluter is harmed
more than the pollutee is benefited
3. Entitlement to pollute protected by a property rule
a. Pollutee could be enjoined by polluter
b. If pollutee could avoid or reduce costs of pollution more cheaply than the
polluter
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 4. Entitlement to pollute protected by a liability rule
a. Pollutee must compensate polluter to get him to stop polluting—would occur
if pollutee was harmed more than the polluter benefited
b. This fourth rule is not considered by courts and legal scholars but they argue
it is more appropriate than the other three rules in certain situations to
accomplish distributional and efficiency goals
3. Feminist Theory
4. Philosophic Arguments:
a. Tort Liability Based on Right or on Good?
i.Does the right proceed the good or does the good proceed the right?
ii.ex: Vosburg v. Putney:
1. tort liability based on right: wrong-doer is liable because the action is wrong, tort law
will absolutely protect the right to bodily integrity
2. tort liability based on good: get the efficient result; make the least cost avoider
responsible for avoiding injury; create incentives to take care and prevent harm.
iii.ex: Environmental Law – Pollution
1. right: pollution is wrong and it must stop; protect the environment/health regardless
of cost.
2. good: look for economically efficient solutions to pollution rather than simply
banning it (expensive)
iv.ex: Eggshell Skull (right precedes the good)
1. if right precedes the good then D is liable for all harms that result
2. if good precedes the right then we might want P to take precautions; might not hold
D liable for unforeseeable harms.
3. so Eggshell Skull looks like it puts the right first.
v.Coase solution:
1. allow wrong-doer to purchase the right to commit the wrong (e.g. kick or pollute)
2. but: even if this transaction is voluntary there are some transactions we refuse to
enforce (unconscionable, some socially damaging behaviors/actions we won’t allow
regardless of the cost).
5. Misc. Readings
a. Introductory Readings on how the Tort System Works
i.Galanter, “An Oil Strike in Hell: Contemporary Legends about the Civil Justice System”
1. Discusses the state of the tort debate and finds that there is a big divide about what
we know empirically about the tort system and what is going on in the tort reform
debate
2. Finds that law and society scholarship refutes the “jaundiced view,” his term for the
disillusionment with the indiscriminate, arbitrary, and litigation-wild civil justice
system that began in the 1970s
a. Argues that this jaundiced view is based on legends and myths—which fall
into three categories: global characterizations, atrocity stories, and assertions
about aggregate patterns—that are unfounded in reality
3. Supporters of tort reform take advantage of factors such as a derelict knowledge
base, cognitive bias, and media distortion in making their arguments
4. Galanter demonstrates the very intense politicization of the torts system and how
difficult it is to keep a grip on reality as the tort system is dragged deeper and deeper
into what Kysar calls the “spin zone”
ii.Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County
1. Social norms article but fits within law and econ literature
2. Concerns the way law interfaces with social life
3. Idea that parties reach a sort of long-term mutually beneficial equilibrium in the
 absence, and sometimes directly contrary to, what their rights and duties are at law
4. Idea that "Coase overstates the influence of law. His error lies in his implicit
assumption that people can effortlessly learn and enforce their initial legal
entitlements, and that they confront transaction costs only when they attempt to
bargain from their legal starting positions. In a world of costly information, however,
one cannot assume that people will both know and honor law."
5. Idea that social custom, rather than the law, governed the relationships in Shasta
County between farmers and cattlemen—neighbors tend to resolve disputes
according to a norm of "neighborliness" and only resort to litigation only when that
norm has broken down.
b. Economics, Law, and Individual Behavior (Readings from final class):
i.Schelling, Micromotives and Macrobehavior
1. Markets, government, morals
2. Idea that individuals will act in their own immediate interest, even if it costs society
more in the long term
ii.Frank et al., “Does Studying Economics Inhibit Cooperation?”
1. Idea that studying economics may change our willingness to cooperate with people
a. Some evidence that studying law influences us in the same way
2. There may be costs associated with studying economics, but the lesson for us is that
the presence of self-interest is even stronger for lawyers
3. Law profession viewed as lacking basic shared values
a. But, Kysar cautions that these basic shared values may be flat-out wrong and
there are strong incentives to conform
iii.Gilbert and Wilson, “Miswanting”
1. Idea that individuals do not know now what they will want later
a. This is caused by imagining the wrong event, using the wrong theory, or
misinterpreting theories
2. Idea that people make choices based on limited information and with little cognitive
ability about the future

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