Torts 2014

I. Intentional Torts
A. Intent
1. Elements of Intent; there is intent if there is:
a. Purpose to cause a tortious contact; OR
b. Substantial certainty that such contact will result
Garret v. Dailey
Facts: ∆ (5yo) moved chair out of π way as a joke as ∆ was sitting down. Π injured pelvis.
Issue: Is intent satisfied if substantial certainty that the contact will result?
Holding/Rule: Intent is satisfied if the actor has substantial certainty that the contact will result
regardless of it being a prank.
Comment: Age does not matter in intent
2. Process of Intent
a. One has to entertain a thought
b. One must act on that thought
c. The action rises to the level of it being offensive or harmful
Spivey v. Battaglia
Facts: ∆ gave π a “friendly unsolicited hug” during lunch, which ended up causing paralysis on the
face of π.
Issue: If ∆ acts with substantial certainty that a certain risk will follow, is ∆ liable for all
consequences that follow regardless of how unforeseeable?
Holding/Rule: Yes. If ∆ has intent for an offensive contact (intentional tort), then he is liable for all
consequences that follow it regardless of how unforeseeable they may be.
3. Contact vs. Consequence
a. The consequence does not determine whether there was intent. See Spivey.
b. Intent is about the contact not how unforeseeable the consequence is; otherwise, people would be
able to make “offensive” contact while still being able to say the result was unforeseeable. All
Battaglia had to do was act on a thought. If we interpret that act as a wrong, he will be liable.
4. Mistakes
Ranson v. Kitner
Facts: π and ∆ were wolf hunting. ∆ shot π’s dog by mistake (w/ good faith) thinking it was a wolf.
Issue: Is a person liable even if the action/tort was made by mistake?
Holding/Rule: Yes. ∆ is liable for damages even if it was due to a mistake.
 A mistake does not negate intent
 5. Capability to Entertain
 All a person has to be able to do is have capability to entertain intent. This will be sufficient for
liability.
Ex. An epileptic person would not be liable because they would not have the capability to
entertain a tortious act during a seizure.
McGuire v. Almy
Facts: π was caring for ∆, who is an insane person. ∆ had an episode and struck π as π was trying to
help ∆ by moving broken furniture out of the way so that there wouldn’t be any harm.
Issues: Can an insane person be liable for an intentional tort?
Holding/Rule: Yes. An insane person can be liable for an intentional tort.
6. Transferred Intent
 Intent can be transferred if a person intended to commit a tortious act on one person but ended up
doing it to another.
Talmage v. Smith
Facts: π throw a stick at two boys but ended up injuring ∆ instead.
Issues: Can ∆ be liable for causing harm to the person who he wasn’t intending to harm?
Holding/Rule: Yes. ∆ is liable for causing harm to π even though π wasn’t the original person ∆ was
intending to harm.

B. Battery
1. Elements of Battery
a. Intent
b. Harmful or offensive contact; Offensive contact = gray world
2. Intent (See I. A.)
a. Purpose to cause a tortious contact; OR
b. Substantial certainty that such contact will result
3. Harmful or Offensive Contact
a. Harmful Contact
Restatement of Torts § 13
An actor is subject to liability to another for battery if:
(a) He acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such a contact, and
(b) A harmful contact with the person of the other directly or indirectly results

b. Offensive Contact
 i. Restatement of Torts § 18
(1) An actor is subject to liability to another for battery if:
(a) He acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such a contact, and
(b) An offensive contact with the person of the other directly or indirectly results.
(2) An act, which is not done with the intention stated in (1(a)), does not make the actor
liable to the other for mere offensive contact with the other’s person although the act
involves an unreasonable risk of inflicting it and, therefore, would be negligent or
reckless if the risk threatened bodily harm.
ii. Offensiveness is determined by the context, time, place, and circumstances of the contact.
(1) One will not be liable if it is a customary contact; or
(2) One that is reasonable pertaining to the intercourse of life
iii. Offensiveness is determined by what would be offensive to an ordinary person not the person
to whom the contact was made.
Wallace v. Rosen
Facts: π was at top of staircase talking to daughter at her school. ∆ is a teacher at that school. An
unannounced fire alarm goes off. ∆ calls out to π who didn’t hear her. ∆ taps π on the shoulder to
get her attention, and π falls down the stairs.
Issue: Is contact in a crowded area enough to constitute battery? Is it offensive?
Holding/Rule: Contact in a crowded area is not enough to constitute battery. It would only be
battery if it were offensive to the ordinary person. (See B. 3. B. ii & iii)
c. Indirect Contact
i. A person can be liable even if the contact was indirect.
ii. A person can be liable for making offensive contact with something that is intimately
connected to another person. (i.e. plate, book, hat, horse, car, etc.)
iii. A person can be liable for making offensive contact with something that is being grasped by
the hand of another.
iv. A person can be liable for battery even if the contact is not done directly with the actor’s
body. (i.e. bat, gun, stick, etc.) They just have to set the chain in motion.
Fisher v. Carrousel Motor Hotel, Inc.
Facts: π was at a luncheon at ∆’s hotel. Employee at ∆ offensively knocked a plate out of π hand.
Π sued ∆ for battery.
Issues: Does making offensive contact with something a person is holding constitute battery?
Rule: Making offensive contact with something a person is holding can constitute battery. (See c
(iii))
C. Assault
1. Definition: "There must be an intentional, unlawful, offer to touch the person of another in a rude or
angry manner under such circumstances as to create in the mind of the party alleging the assault a
well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the
attempt, if not prevented."
2. Apprehension: The sense that something harmful or offensive is about to happen. Apprehension is
necessary for assault; contact is not. The π must be aware that they are about to be touched.
3. Intent: The ∆ must have the intent to cause such a harmful or offensive contact.
4. Every battery does NOT require an assault. One can cause an offensive contact while the π was
unaware of the apprehension. (Ex. Some transferred intent situations, kissing a stranger while they
are sleeping without them finding out until later, etc.)
D. False Imprisonment
1. Definition: False Imprisonment is the direct restraint of one person of the physical liberty of another
without adequate legal justification. (Big Town Nursing Home v. Newman)
2. Elements of false imprisonment:
a. Intent to confine
b. Actual Confinement
c. Awareness of confinement
3. Intent to Confine (Refer to I. A. Intent)
4. Actual Confinement
a. There must be a specific area in which one is completely confined without a reasonable means of
escape.
b. Moral persuasion is insufficient for false imprisonment. (Hardy v. LaBelle’s)
c. Exclusion is not confinement.
 Hypo: π not being allowed to enter AAA for a concert that was paid for is not false
imprisonment
5. Awareness of confinement
a. False imprisonment is not suffered unless its victim knows of his confinement or they are
harmed by it.
 Example of being harmed by it: getting drugged up and then confined
b. Being less than sober does not mean that one has no sense of being confined. (Parvi v. City of
Kingston)
6. Damages: There must be mental, physical, or economical damages to collect in false imprisonment.
7. False Arrests (Enright v. Groves)
 a. False arrest happens when one is taken into custody by someone who claims to have proper legal
authority to do so, but they don’t.
b. There must be probably cause in arresting someone. Otherwise, there would be false
imprisonment.
8. Means of confinement: (1) Physical force, (2) physical barrier, (3) threats of physical force, (4) by
other duress [see below], and (5) asserted legal authority.
 Restatement § 40A: The confinement may be by submission to duress other than threats
of physical force, where such duress is sufficient to make the consent given ineffective to
bar the action.
E. Intentional Infliction of Emotional Distress
1. Definition (Restatement): one who, without privilege to do so, INTENTIONALLY causes SEVERE
emotional distress is liable (1) for such emotional express, and (2) for BODILY harm resulting.
2. Elements of Emotional Distress: (Harris v. Jones)
a. The conduct must be INTENTIONAL or RECKLESS
b. The conduct must be EXTREME or OUTRAGEOUS
c. There must be a CAUSAL connection between the conduct and the ED
d. The emotional distress must be SEVERE
3. Intentional or Reckless Conduct
a. A cause of action is established when one INTENTIONALLY subjects another to mental
suffering via threats to the well being of another. (State Rubbish v. Siliznoff)
b. Intentional: Intention to cause severe ED exists when the act is done for the purpose of causing
the distress or with knowledge on the part of the actor that severe ED is substantially certain to
be produced.
4. Extreme or Outrageous Conduct
a. There is liability only for conduct exceeding all bounds which could be tolerated by society, of a
nature especially calculated to cause mental damage of a very serious kind.
5. Severity
a. The intrusion must cause severe emotional distress to a person of “ordinary sensibilities” in the
absence of special knowledge.
b. Mere vulgarities/insults are not inclined to be considered severe emotional distress. (Slocum v.
Food Fair)
6. Transferred Emotional Distress (Taylor v. Vallelunga)
a. Rule: A person cannot recover damages for ED for witnessing something if the ∆ did not
know that a bystander was there.
 b. Hypo: "A is sitting on her front porch watching her husband B, who is standing on the sidewalk.
C, who hates B and is friendly to A, whose presence is known to him, stabs B, killing him. C is
liable to A for the mental anguish, grief and horror he caused."
F. Trespass to Land
1. Elements of Trespass to Land: (Disjunctive test)
a. Enter land in the possession of the other, or causes a thing or a third person to do so, OR
b. Remains on the land, OR
c. Fails to remove from the land a thing, which he is under a duty to remove. (Rogers v. Board of
Road)
2. There must be INTENTION. The actor must act with a purpose to cause the intrusion on land, or
with substantial certainty that she will cause it.
3. Damage to property is not an element to trespass to land.
4. Mistakenly trespassing is treated the same way as battery and assault.
5. Effect of consent: One who effectively consents to conduct of another intended to invade his
interests cannot recover in an action of tort for the conduct or for harm resulting from it. This is also
inclusive of PURPOSE for being on the land. (ex. If it’s a birthday party, you cannot go on the land
and ride their horse)
6. The airspace near the ground over your land is as much your property as the land itself. Everything
directly under is my property as well. A person owns a “reasonable space” above and below their
property. (Herrin v. Sutherland) (Not applicable to natural resources)
G. Trespass to Chattels
1. Elements of Trespass to Chattel
a. § 217: A trespass to a chattel may be committed by intentionally
i. Dispossessing another of the chattel, OR
ii. Using or intermeddling with a chattel in the possession of another
2. When is a person actually liable?
a. § 218: One who commits a trespass to a chattel is subject to liability to the possessor (NOTE: it
says possessor NOT owner) of the chattel, IF and ONLY IF,
i. He dispossesses the other of the chattel, OR
ii. The chattel is impaired as to its condition, quality or value, OR
iii. The possessor is deprived of the use of the chattel for a substantial time, OR
iv. Bodily harm is caused to the possessor, or harm is caused to some person or thing in which
the possessor has a legal protected interest
3. Actual damages must be shown in trespass to chattels.
 4. CompuServe v. Cyber Promotions: Trespass to chattels occurs when the defendant intrudes upon the
plaintiff’s chattel such that damage results. The standard set down in this case is that trespass to
chattels may lie for sending unwanted e-mails if the value of the computer equipment involved is
diminished and the plaintiff can show actual damages. In this case, the plaintiff shows that they
have lost business because of the spam. Note that trespass to chattels typically involved tangible
property. This is a clever use of the tort to apply to intangible property.
H. Conversion
1. What constitutes conversion?
a. Conversion is an intentional exercise of dominion or control over a chattel, which so seriously
interferes with the right of another to control it that the actor may justly be required to pay the
other the full value of the chattel.
b. In determining the seriousness of the interference and the justice of requiring the actor to pay the
full value, the following factors are important:
i. The extent and duration of the actor’s exercise of dominion or control;
ii. The actor’s intent to assert a right in fact inconsistent with the other’s right of control;
iii. The actor’s good faith;
iv. The extent and duration of the resulting interference with the other’s right of control
v. The harm done to the chattel;
vi. The inconvenience and expense caused to the other.
2. In order for conversion to occur, some property must be interfered with in a “complete or very
substantial” way. The difference between conversion and trespass to chattels is that conversion
means you recover the market price of the item converted, but you don’t get the item itself back. So
if you use a chattel in a way you weren’t authorized to and you mess it up badly, you could be liable
for the entire replacement cost of that chattel. So watch out!
3. Conversion of a chattel is the forced sale of that chattel. It gets sold, and then you get the proceeds
from the sale. When a piece of property gets converted, you get damages, but you don’t get the
thing back. If you want to keep the chattel, you must go for an action of trespass to chattels.
4. Conversion is an inefficient way to get your goods back because you force the sale of the goods.
Generally, the further away goods move, the more likely a jury will call it conversion. The question
is: at what point is it so inconvenient that the plaintiff can sue for conversion? An alternative action
to conversion is to replevin the goods, which means to get the stuff back rather than forcing it resold.
If somebody took a lottery ticket or a special pet, the situation would suggest using an action for
replevin instead of an action for conversion.
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II. Privileges
A. Consent
1. Consent can be determined from: (1) the circumstances of the act, (2) implied acts or words, (3) a
prior course of conduct between the parties, (4) custom, (5) whether a reasonable person would
believe the person consented, and (6) whether the ∆ exceeded the scope of the consent given.
2. Consent which is obtained through fraud is not valid consent. (De May v. Roberts)
B. Self-Defense
1. You can use reasonable force in amount and duration based on the circumstances to protect your
person.
2. It is a privilege to forestall an impending battery, not to retaliate for prior ones. Can’t use for verbal
assaults.
3. Must not become the aggressor
C. Defense of Others
1. Majority: Can defend others using same reasonable force they would use
2. Minority: If unaware of situation and mistakenly interpret actions and defend the aggressor, you
become the aggressor even if you reasonably believed you were helping.
D. Defense of Property
1. You do not have the privilege to cause death or serious injury to a trespasser unless the trespass itself
threatens death or serious injury. (Katco)
2. Can use deadly force in protecting yourself of your family.
3. A warning that there is deadly force on the property is not sufficient if the deadly force is
unreasonable.
E. Recovery of Property
1. One who is wrongfully dispossessed of a chattel by force or fraud has the privilege to repossess that
chattel with reasonable force through fresh or hot pursuit.
F. Necessity
1. Public: Kicks in when there exists a great danger to a whole community. (Surrocco)
2. Private:
G. Discipline
1. You must use reasonable force
2. There can be parental-child immunity if reasonable force is used
H. Justification
1. Use when no other defense exists but the ∆ shouldn’t be held liable. If there is no serious harm to the
public good, the ∆ is not justified.
 2. Factors to consider: (1) What is the manner and place of occurrence? (2) Are there alternative
actions? Intentional tort should be last resort (3) Was the ∆ acting in the public interest? (4) Did the
∆ have the duty to aid in the apprehension of the wrongdoer? (5) Was the ∆’s conduct reasonable
under the circumstances?
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III. Negligence
A. Elements of Cause of Action
1. A duty to use reasonable care.
2. A breach of the duty to use reasonable care. (Failure to conform to required standard)
3. A reasonably close causal connection between the conduct and the resulting injury.
4. Actual loss or damages resulting to the interests of another.
B. Duty and Breach
1. When determining whether it is negligent to leave an object lying around, one must look at whether
the object is obviously and intrinsically dangerous. One is to prevent unreasonable risk to
danger. (Lubitz v. Wells)
2. One is negligent if they fail to do what a reasonable person would have done or what a reasonable
person would not have done.
 In determining this, one must look at the average circumstances. (Blyth v. Birmingham:
Used to determine P)
3. Test of Foreseeability of Injury:
a. It is NOT the balance of probabilities that damage will result…
b. It is the existence of some real likelihood of damage, of such appreciable weight as would
induce action to avoid it on the part of the reasonably prudent person. (Gas Refinery: Used
to determine P)
4. When an accident occurs, compare it to the burden of doing something differently. Do not look
at the outcome (injury) to determine liability.
5. The Reasonable Person
a. How the Reasonable Person Thinks; The RP considers:
i. The foreseeable risk of injury that that conduct will impose on the community
 The reasonable person considers those risks (the ones that are imposed on the
community) in light of the utility of the conduct. § 292
What is Utility?
(a) The social value which the law attaches to the interest which is to be advanced or
protected by the conduct; (i.e. Low utility = texting while driving)
 (b) The extent of the chance that this interest will be advanced or protected by the
particular course of conduct;
(c) The extent of the chance that such interest can be adequately advanced or protected
by another and less dangerous course of conduct.
ii. The extent (magnitude) of the risks posed by their conduct § 293
(1) What is extent (magnitude) of risk?
(a) The social value which the law attaches to the interests which are imperiled;
(b) The extent of the chance that the actor’s conduct will cause an invasion of any
interest of the other or of one of a class of which the other is a member;
(c) The extent of the harm likely to be caused to the interests in danger;
(d) The number of persons whose interests are likely to be invaded if the risk takes effect
in harm
iii. The likelihood of a risk actually causing harm § 293(d)
iv. Alternatives to their proposed conduct would achieve the same purpose with lesser risk §
292(c)
6. The Carroll Towing Test/Hand Formula
a. If the burden (B) of adequate precautions is less than the loss if the injury (L) occurs multiplied
by the probability (P) that the injury occurs, then one is being negligent. (B < PL)
b. Hypo #1: Davison v. Snohomish
c. Hypo #2: Plastic gun detector that cost $1M per machine to install in an airport. Is B too high?
7. Custom
a. Accepted practice can be a legal duty. Proof of the existence of a custom and practice coupled
with evidence showing failure to adhere to it may establish liability. (Trimarco v. Klein)
b. Following customs can be evidence of reasonableness, but it cannot be conclusive of negligence.
8. Internal Circumstances
a. An individual is not held to the standard of using his or her own best judgment. (Menlove)
b. Physical impairment
i. Physical impairments are treated differently than mental impairments.
ii. A person with a physical impairment must act as a reasonable person with such physical
impairment would act. (Ex. A blind person must act as a reasonable blind person. Roberts v.
State of LA)
c. Children
i. Generally, children are held to the standard of children of like age. This isn’t followed when
children are engaging in adult activity.
 ii. The court may hold a child to an adult standard of care when they partake in inherently
dangerous activities. (Snowmobile Robinson v. Lindsay)
d. Insanity
i. People with mental disabilities are held to the standard of care of a reasonable person under
the circumstances.
ii. Minority rule: A sudden bout of insanity is an exception to the rule. (Breunig v. American)
9. External Circumstances
a. Emergency Situations
i. Negligence is not absolute but is always relevant to some circumstances of time, place, or
person.
ii. You are not negligent in protecting your own life.
b. Proper maintenance as precautionary measure
i. You can still be liable for negligence for not properly maintaining something in which an
injury occurs as of a result.
10. Professional Standard of Care
a. Definition: The professional standard of care is acting with the knowledge, training, and skill of
an ordinary member of the profession in good standing. (Pilot is held to standard of care of what
a pilot in the profession would do. Not what Heath as a pilot would do. Heath v. Swift Wings)
b. Attorney Malpractice
i. You must act with the skill and knowledge and skill of an ordinary person in your profession
ii. You must not fail to use reasonable care and diligence
iii. You must not fail to use your best judgment in attending your work
11. Medical Malpractice
a. Definition: The proper standard of care must be established by expert medical testimony unless
negligence is so grossly apparent that a layman would recognize it. (Boyce v. Brown)
b. Custom is important in determining med mal cases.
c. The defendant must exercise the degree of reasonable care and skill expected of members of the
medical profession under the same or similar circumstances.
d. Local vs. National Standard of Care
i. The locality rule says that doctors should be held to the standard of doctors in their
community.
ii. Court abandons locality rule in Morrison v. MacNamara and states that a nationally certified
professional must be held to a national standard of care.
12. Informed Consent
a. Lack of disclosure of risks and alternatives to patients
 i. Three standards
(1) Reasonable doctor (majority): doctor testifies as to what a doctor would do
(2) Reasonable patient: use reasonable man standard
(3) Subjective patient standard (minority): the patient can say what they would have said and
it’s up to the jury to consider the credibility of the plaintiff.
(a) Is there a material risk?
(b) Would patient have agreed to procedure had it been disclosed?
(c) These procedures not disclosed caused injury
ii. Exceptions
(1) You don’t need to tell the patient anything he knows or should know
(2) You don’t need to disclose information that would be detrimental to the overall best
interest of the patient
(3) You don’t need to disclose in an emergency situation where consent will be impossible to
obtain
b. Lack of disclosure for economic gain: A physician must tell the patient if he has personal
interests that may affect his professional judgment.
13. Rules of Law
14. Negligence Per Se (IF IT DOES NOT APPLY, THEN USE HAND FORMULA)
a. MarCam Test
i. What injury is the statute intending to protect?
ii. Was plaintiff within the class of persons that the statute was intending to protect?
b. An unexcused violation of statute is negligence per se. (Majority Rule: Strict per se according to
Roman with NO EXCUSE)
c. An unexcused violation of statute is a rebuttable presumption of negligence. (Some jurisdictions:
According to Roman, this is per se BUT WITH AN EXCUSE) (Zeni)
i. There must be an adequate reason. Plaintiff must show that he acted the way a reasonable
person would have under his circumstances.
d. An unexcused violation of statute is evidence of negligence. (Minority Rule)
i. Evidence that the defendant violated a statute
e. Excuses to negligence per se § 288A
i. Incapacity (minor)
ii. Lack of knowledge of need to comply (Tail light goes out while he is driving and before he
has the opportunity to discover it)
iii. Inability to comply (blizzard makes it impossible to comply with a statute requiring railroad
to keep its fences clear of snow)
 iv. Emergency (driver swerves across the center line to avoid child on street)
v. Compliance poses greater risk than violation (pedestrian walks with her back to the traffic
due to unusually heavy traffic going the other way)
15. Res Ipsa Loquitur (Sullivan v. Crabtree) (Use this if YOU HAVE NOTHING ACCORDING TO
CARROL TOWING)
a. Three requirements for res ipsa
i. The accident ordinarily would not happen without negligence
(1) Common knowledge suggests that this is probably not an accident. Someone’s careless
conduct is likely the explanation. This is not to say that neg is the only conceivable
explanation. Π burden of proof is not to eliminate all possible alternative causes. Π has to
prove neg is the most probable cause.
(2) Examples:
(a) A newborn baby is matched to the wrong mother in the maternity ward
(b) An airplane disappears without a trace in good weather
(c) A chunk of glass or a tack is found in a can of spinach
(d) Oil spills from a tank truck on the highway
ii. The negligence, if any, is attributed to the defendant
(1) It is not enough to show that ∆ probably caused the harm. The evidence must point to the
∆ as the negligent party.
(2) Easy cases: It’s obvious when cement drops from ∆’s crane
(3) Difficult cases: explosion of bottle of soda in hands of consumer. Bottles should not
explode unless the π was being negligent in handling it. But a distributor or retailer
making it harder to show negligence may have handled the bottle.
(4) This requirement is often not met unless the instrumentality that caused the harm was
“under the defendant’s control” at the time of the accident.
iii. The event must not have been due to any voluntary action or contribution on the part of the π.
b. Common defenses
i. There are lots of defendants making it hard to prove exclusive control
ii. There are lots of instrumentalities
iii. The control of the instrumentality that caused the harm is uncertain
c. Burden?? (Zeni)
C. Causation
1. Actual Cause/Cause in Fact (DOMANAT TEST Cramer v. Wilkins: Reference this on exam
when bringing up the test)
a. The ∆’s conduct is a cause of the event if the event would not have occurred but for the conduct;
conversely, the ∆’s conduct is not a cause of the event if the event would have occurred without
it.
b. The test invites us to look at what DID happen and compare it to what WOULD HAVE
happened if the ∆ had not been negligent.
c. Where the negligence of the ∆ greatly multiplies the chances of accident to the π, and is of a
character leading to its occurrence, the mere possibility that it might have happened without the
negligence is not sufficient to break the chain of cause and effect between the negligence and the
injury. (Reynolds v. Texas & Pac: While it is possible that the Plaintiff might have fallen had she
exited the train during the daylight, the possibility is not sufficient to divest the Defendant of
liability for its negligence. The Defendant’s negligence was of a character naturally leading to
the character of the Plaintiff’s injury and therefore causation is established.)
d. Correlation does not imply causation. (DOMINANT TEST: Cramer v. Wilkins: Reference this
on exam when bringing up but for test)
e. Concurrent Causes
i. Hill (both “but for”): When separate acts of negligence combine to produce a single injury,
each tortfeasors is liable even though neither act alone would have caused the injury.
ii. Anderson (substantial factor test): the ∆ would be a cause in fact of the damage if the jury
found that its act was a material or substantial element in producing it.
(1) The ‘substantial factor’ test is an alternative approach to cause in fact for those unusual
situations in which the “but for” test does not yield satisfactory results.
(2) You typically apply Hill first. You don’t have to prove both “but for” and “substantial
factor” to prove cause in fact.
(3) If you remove one of the parties and the injury could have still happened, use this test.
iii. Summers situation: Where two or more ∆s commit substantially similar negligent acts, one of
which caused the π’s injury, the burden of proof shifts to each ∆ to show that he did not cause
the harm. This is only used when the “but for” analysis fails. Both ∆s have to be doing
something negligent and the ∆’s have to be doing roughly the same thing.(Two ∆’s fired
shotguns and a pellet from one or the other injured the π’s eye)
(1) Elements
(a) Each ∆ is shown to be negligent
(b) The actual wrong doer is one of the ∆s
(c) The nature of the accident makes it impossible to prove negligence either way
f. Market Share Liability
 i. This allows the π to sue a number of manufacturers—and assuming they are at fault—hold
each liable for part of the π’s damages.
ii. Each manufacturer’s liability is determined by the proportional share of the product it has in
the relevant market place.
iii. There is no difficulty in determining what caused the injury. The problem is determining
WHO caused the injury.
iv. Under this approach, the ∆ will be held liable to a π even though they did not cause her any
harm.
v. VERY RARE. Not all defendants are in court. It's saying that the π was injured and that it's
the duty of the ∆ to prove that they are innocent. This could be considered a perversion of our
system. This applies in a concentrated marketplace and you can't tell who did it.
2. Proximate cause (USE EACH ON THE EXAM; GO TO DAMAGES IF EITHER TEST IS
PASSED)
a. Actual cause questions, “what happened?” ; proximate cause questions ask, “What shall be done
about it?” Proximate cause is used to see how far the liability extends.
b. Polemis Test (Focused on “directness” to establish proximate cause. Not used often but should
be mentioned on exam.)
i. Questions to ask:
(1) Was the ∆ negligent?
(2) Was the ∆ negligence the direct cause of the damages?
ii. The ∆ is liable if his conduct is the “direct cause” of the π’s injury, as opposed to a “remote”
cause.
iii. In Polemis, a workman dropped a board into the hold of π’s ship, which caused a spark and
ignited vapors in the hold, destroying the ship. Although the explosion was deemed
unforeseeable, the court held that the ∆ was liable, since the negligent act of its employee
was the “direct cause” of the harm.
c. Wagon Mound Test (Turned the focus from “directness” to foreseeability in establishing
proximate cause.)
i. The π can only recover for the injuries that the ∆ should have anticipated at the time of the
negligent act.
ii. F: ∆’s oil fouled the waters around the π’s dock, where welding was in progress. Because of
its high ignition point, the oil was unlikely to burn, but it did, through a strange concatenation
of circumstances found in the case to be unforeseeable. Other injury to the dock, however,
was foreseeable, and in fact took place: fouling of the docks by the oil. The dock owner
 argued that since the ∆ could foresee SOME injury to the dock, it was liable for ALL injury,
which actually resulted. Court rejected this and only held liability to the foreseeable injury.
d. Palsgraf Test
i. If the ∆ would not have anticipated injury to the π from their conduct, they owe no duty to
avoid the injury and are not negligent in relation to the π. The π becomes an “unforeseeable
π” to whom no unreasonable risk was to be anticipated.
ii. Risk imports relation
iii. Looks at the foreseeability of the π not the injury
iv. F: ∆’s conductors were negligent in assisting the rushing passenger onto a moving train,
causing him to drop a package. Although there was no reason for the conductors to suspect it,
the package contained firecrackers, which exploded, overturning some scales a distance
away. The scales fell and injured π. The foreseeable πs were the passenger or his package,
not Palsgraf.
e. Proximate Cause Tips
i. If the π’s injury is truly beyond the type of harm to be expected from the ∆’s conduct, the π
will virtually always go uncompensated.
ii. Where a particular type of injury to the π is foreseeable, the ∆ is liable for the injury
sustained, even though it is more serious than might have been anticipated. (Ex. ∆ knocks
down π causing πa cut. Π is a hemophiliac and dies from loss of blood. ∆ is liable for the full
injury sustained.)
iii. An injury does not have to be likely or probable in order to be foreseeable in proximate cause
analysis. (Ex. If ∆ throws a flowerpot out a third story window without looking, there may be
only a 3% chance that someone will be hit. But this conduct is clearly negligent, because it
poses an unreasonable risk of injury to a passerby. Foreseeability is not to be measured by
what is more probable than not, but includes whatever is likely enough in the setting of
modern life that a reasonably thoughtful person would take account of it in guiding
practical conduct.)
f. Intervening and Superseding Causes
g. Rescuers
i. Third-party intervention
h. Social Host Liability
IV. Joint Tortfeasors (UNDER DAMAGES FOR EXAM)
A. When two parties act in concert, they will be held jointly and severally liable. That is, either of two
persons whose concurrent negligence contributed to cause π’s injury and damage may be held liable for
the entire amount of the damages caused by them. (Bierczynski v. Rogers)
 1. If one defendant is insolvent, you can get the entire judgment from the other party.
2. Comparative fault does not eliminate joint and severable liability. (Coney v. JLG)
3. Two views on comparative negligence in terms of jurisdiction:
a. Either a jurisdiction will hold a defendant fully liable for damages even if they were less than
50% at fault; or
b. A jurisdiction will favor comparative negligence and hold the party liable to their share of the
negligence. (Bartlett v. New Mexico: 30% contribution; 30% damages)
B. Satisfaction and Release: Although there may be several suits and recoveries, there can only be one
satisfaction. When one ∆ satisfies the π injuries, the other ∆s are discharged.
1. Satisfaction: Receiving full compensation for the injury; this is different from a judgment.
Satisfaction is met when the judgment is paid.
2. Release: Satisfaction is acceptance of full compensation for the injury. A release is a surrender of the
π’s claim.
3. Covenant not to sue: Different from release. One releases the claim, one is a K to withhold the claim.
C. Contribution and Indemnity
1. There need not be a joint judgment against two people who are negligent in order to enforce
contribution.
2. Based on common law, neither husband nor wife is liable for tortious acts by one against the other.
(Yellow Cab v. Dreslin)
D. Apportionment of Damages (Liability for Subsequent Injuries)
1. Defendant #1 is not liable for damages from an accident caused by defendant #2 where defendant #2
is a distinct cause. If the injury is indivisible, all defendants are liable. If the plaintiff was already
injured, the second defendant is liable for the harm caused (mitigated by the plaintiff’s condition).
The plaintiff’s condition is a jury question.
2. Damages can be reduced in situations where someone already has some existing condition. If you
kill someone with cancer, they’re already likely to die, and so their damages are likely to be reduced.
The value of someone’s life is to be measured by their anticipated future earnings and other factors.
V. Duty of Care
A. Additional External Circumstances: the court will put a duty into effect; still do traditional Hand
Formula and then mention other duty issue
1. Privity of K
a. Dominant View (Winterbottom): What happens when an end-user is injured from a product,
which was not purchased from a manufacturer? Absent privity of K, there is no redress. Unless
you purchased the item from the producer, you did not have a claim against that producer. (Not
applicable today)
 b. MacPherson: Joint collaboration between Buick and manufacturer of wheel. The undertaking is
so foreseeable that injury could arise; that you’ll be held liable no matter what precautions you
took. (Not on exam/Strict liability) When the nature of a thing is such that it is reasonably
certain to place life and limb in peril when negligently made, it is then a thing of danger.
It’s nature gives warning of the consequences to be expected, If to the element of danger
there is added knowledge that the thing will be used by persons other than that purchaser,
and used without new tests, then, irrespective of K, the manufacturer of this thing of
danger is under a duty to make it carefully. If you can’t conceive of anything but negligence
doing this, then it is probably res ipsa.
c. HR Moch v. Rensselear: Proximate cause. Was it foreseeable that a danger would arise? Was the
plaintiff the foreseeable plaintiff?
d. Clagett v. Dacy:
e. If an employee is injured on the job, his claim against the employer is an issue of worker’s
compensation.
2. Failure to Act
a. Hegel v. Langsam: There is no duty to act. The burden is too high for the university to keep track
of every student. (Can cite to for burden on exam)
b. LS Ayres v. Hicks: Inviter/invitee relationship is a duty. If as a business you are invited to view a
product, there is an affirmative duty for the business to make the place safe for you.
c. JS and MS v. RTH: Foreseeability and the circle. The wife was found to a person who could
foresee the plaintiffs. There was proximate cause.
d. Tarasoff v. Regents UoC: crime-fraud exception: patient tells psychiatrist that he will kill
someone. Physiiatrist has a duty to inform others.
3. Pure Economic Loss
a. State of Louisiana v. M/V (Similar to BP): The majority rule does not allow recovery for
economic loss, unless physical damage to property occurs. (Pure economic loss rule: pure eco
loss is not recoverable, there has to be physical damage to the person or property even if
foreseeable)
VI. Damages
A. Single recovery rule: π has one trial to seek compensation for all his losses whether they be past, present,
or future.
B. Compensatory damages are a bulk of what we talk about. To make someone whole (lose limb and
property damages) you give their loss a money value.
1. Anderson v. Sears: Defective heater caught fire and severely burned the πs
 a. Past physicals and mental pain: burns everywhere and this happened at an age where med
experts claimed the child’s entire psyche and personality formed. Bed wetting, nightmares,
refusal to sleep alone, etc. $600,000.
b. Future physical and mental pain: future operations and future stresses in life because of her
mental capacity now. $750,000
c. Future medical expenses: $250,000
d. Loss of earning capacity: $330,000
e. Permanent disability and disfigurement: evaluates in monetary terms the compensation due this π
for the permanent physical, mantel and emotional disabilities and disfigurements proved by the
evidence adduced at trial. $1,100,000
C. Nominal damages; you technically won but received no real damages. Court recognizes your cause of
action.
D. Punitive damages; only available if the defendant made an (1) intentional tort or (2) did something
negligent that shows a disregard for human life at stake. (this justifies punitive damages) (Cite to State
Farm)
E. Emotional Distress: you can have damages for ED. IT’s very limited. Who can bring such a claim?
(Daley v. LaCroix)
1. Use the Dillon TEST (pg. 300 E&E)
a. Π was located near the scene of the accident as contrasted with one who was a distance away
from it
b. Whether the shock resulted from a direct emotional impact upon the π from the sensory and
contemporaneous observance of the accident, s contrasted with learning of the accident from
others after its occurrence
c. Whether π and the victim were closely related, as contrasted with an absence of any relationship
or the presence of only a distant relationship
VII. Wrongful Death
A. Covers what happens after death not before. Pain and suffering that happens before is covered by
survival statutes.
B. Morgane v. States Marine: π was killed working aboard a vessel in navigable waters in FL. Wrongful
death predicated upon both neg and the seaworthiness of the vessel.
1. Common law did not honor wrongful death claims. Once the person died he could not complain of
injury.
C. Wrongful death claims are governed by statute not the courts. They very from state to state.
D. Wrongful death statutes do not compensate the decedent herself. It compensates survivors who were
close to the decedent for the losses they suffer as a result of the decedent’s death.
 E. Historically, many WD statutes limit damages to pecuniary losses. (economic contributions the decedent
would have made to the beneficiaries; stricter jurisdictions may just give burial costs)
VIII. Survival Statutes
A. The claim itself survives after the death of the π.
B. Covers what the π suffered before his actual death because of the cause.
C. Usually brought up by the estate.