TORTS OUTLINE

Evans

If you were able to believe in Santa for 7 years, you can believe in
yourself for 4 hours.

If you fall, I’ll always be there. – The ground

Table of Contents
Causes of Actions:..........................................................................................................................5
CoA Defenses:................................................................................................................................6
Negligence:.....................................................................................................................................7
Duty........................................................................................................................................................7
Physical Injuries..................................................................................................................................................7
e. Don’t know if there is a duty? Rowland Factors:......................................................................................8
Nonphysical Harm - Negligent Infliction of Emotional Distress...................................................................11
A. Emotional Harm – Direct.....................................................................................................................11
B. Emotional Harm – Bystanders (danger to 3rd party that you witness):..............................................12
Pure Economic Loss - negligence.....................................................................................................................12
a. Privity of contract – clients. Extremely narrow, contractual parties only..........................................12
b. Near privity – some non-contracting 3rd parties..............................................................................12
c. Restatement § 552 – some non-contracting 3rd parties....................................................................12
d. Foreseeability – any foreseeable party..............................................................................................13
Procreation..........................................................................................................................................13
A. Wrongful birth: suit by parents for having a child they tried to not have..........................................13
B. Wrongful life: (cannot sue anywhere) suit on behalf of child born after parents tried to stop their
unborn child from having health problems....................................................................................................14
Vicarious liability..............................................................................................................................................14
o Elements: Birkner factors (4 W’s)......................................................................................................14
Independent contractors:.............................................................................................................................15
 “Borrowed Servant”..............................................................................................................................16
Role of Statutes:.................................................................................................................................................16
B. Private Right of Action - can victim of statutory violation sue violator at all?..................................16
C. Negligence per se – does violating applicable statute is automatically a breach of SoC?..................17
Governmental Immunities................................................................................................................................18
a. Federal Torts Claim Act (FTCA) allowed for people to sue gov’t. There are some exceptions.......18
D. Duty of the Police................................................................................................................................19
i. Cuffy Factors:......................................................................................................................................19
Standard of Care/ Breach:..................................................................................................................20
A. Calculus of risk – D must be breach SoC to be liable..............................................................................20
B. Ordinary standard of care......................................................................................................................20
i. Children...............................................................................................................................................22
j. Disabled persons...................................................................................................................................22
C. Extraordinary standard of care - You need to make things safe that you know have a risk, you also
have a duty to inspect and discover unknown risks and repair/warn the unknown risks....................................22
E. Res Ipsa Loquitur – the thing speaks for itself.....................................................................................23
F. Medical Malpractice................................................................................................................................24
c. Witness for med mal...........................................................................................................................24
d. Informed Consent...............................................................................................................................24
e. In 2003, Texas passed med mal practice reform that makes it difficult for patients to sue doctors.25
f. Latency.................................................................................................................................................26
Premises liability...............................................................................................................................................26
b. Trespasser:...........................................................................................................................................27
c. Licensee: social interactions.................................................................................................................27
d. Invitee: public or business....................................................................................................................27
C. Modern Premises liability: harms caused by visitors who hurt people on your land (duty to keep
your own property safe)..................................................................................................................................28

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 Causation.............................................................................................................................................28
A. Actual Causation........................................................................................................................................29
b.Cause-In-Fact........................................................................................................................................29
iii.
When is expert testimony admissible?..................................................................................................29
e.Medical cases.......................................................................................................................................29
B. Proximate Cause......................................................................................................................................30
c. Unexpected victims: Was the P foreseeable & was the injury foreseeable?.......................................30
d. Unexpected Harm...............................................................................................................................30
e. Superseding Causes............................................................................................................................31
C. Joint and Several Liability; Multiple Defendants............................................................................32
D. Toxic Harms........................................................................................................................................32
Defenses................................................................................................................................................32
A. Contributory Negligence...........................................................................................................................32
B. Comparative Negligence.........................................................................................................................33
i. Uniform Comparative Fault Act.......................................................................................................33
ii. Iowa Statutory Law............................................................................................................................34
iii. Pro Tanto Rule (Texas & California follow)......................................................................................34
g. Math! A = Plaintiff & B, C, D = Defendants – C is your client...........................................................34
C. Avoidable Consequences.........................................................................................................................36
D. Assumption of Risk..................................................................................................................................36
ii. Tunkl factors: when is it not appropriate for a business to contract out of liability?.........................37
E. Preemption:..............................................................................................................................................38
e. Medical Device Amendment (MDA) give classifications (I, II, or III)...........................................39
Strict Liability (SL).......................................................................................................................40
a. Duty, Injury, Causation..............................................................................................................40
D. Categories of Abnormally Dangerous Activities......................................................................41
G. Defenses.......................................................................................................................................41
Product Liability...........................................................................................................................41
F. Manufacturing Defects...............................................................................................................43
G. Design Defects.............................................................................................................................43
H. Failure to Warn..........................................................................................................................44
d. Learned Intermediary Doctrine (LID) - DRUGS......................................................................................44
f. Children....................................................................................................................................................45
I. Defenses to Products Liability...................................................................................................46
i. Statutes of Repose: similar to statute of limitations, but the time begins to run when the product is first
sold 46
ii. Waivers & disclaimers: Products Liability Restatement: "disclaimers and limitations of remedies by
product sellers… do not bar or reduce otherwise valid products liability claims".............................................46
b. Bulk supplier defense: duty is owed only to the employer and not to the employees...............................46
J. Work-Related Injuries...............................................................................................................46
K. Beyond Products.........................................................................................................................47
Intentional Torts...........................................................................................................................47
B. Assault.........................................................................................................................................47
i. Intent: D intends to cause harmful or offensive contact (or to create apprehension of harmful or
offensive contact)................................................................................................................................................47
ii. Actually putting Plaintiff into apprehension..............................................................................................47

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 C. Battery.........................................................................................................................................48
i. Intent: D intends to cause harmful or offensive contact (or to create apprehension of harmful or
offensive contact)................................................................................................................................................48
ii. Harmful or offensive touching...................................................................................................................48
iii. No consent.................................................................................................................................................48
D. False Imprisonment....................................................................................................................49
i. Intent: D has intent to retrain or confine P................................................................................................49
ii. Actual Confinement: P constrained in a limited physical area from which there is no reasonable or
apparent means of escape....................................................................................................................................49
iii. No consent: P did not consent to confinement..........................................................................................49
iv. Plaintiff actually aware of the confinement or Plaintiff unaware of the confinement and was injured as a
result of the confinement.....................................................................................................................................49
E. Infliction of Emotional Distress.................................................................................................49
i. Intent:.........................................................................................................................................................49
ii. Conduct is extreme....................................................................................................................................50
iii. Conduct is the cause of the P’s emotional distress....................................................................................50
iv. Plaintiff experiences severe emotional distress.........................................................................................50
F. Defenses to Intentional Torts..................................................................................................................50
b. Privilege: no tort is considered to have occurred, there is justification for defendant’s otherwise
tortious behavior.............................................................................................................................................50
c. Immunity: a tort exists, but no liability is assigned.............................................................................50
d. Consent.................................................................................................................................................51
e. Self Defense..........................................................................................................................................51
f. Protection of Property........................................................................................................................52
g. Private Necessity.................................................................................................................................52
Defamation & Privacy- Related Torts.........................................................................................52
A. Defamation..................................................................................................................................52
i. Libel: defamatory statement is made in writing........................................................................................54
ii. Slander: defamatory statement is spoken..................................................................................................54
c. Special damages- a plaintiff must show some sort of loss of economic benefits, in addition to pure
reputational/ dignity harm...................................................................................................................................54
d. Per Quod:...................................................................................................................................................54
f. Defenses:...................................................................................................................................................54
i. Absolute privilege: no matter how false or defamatory the statement, D cannot be sued....................54
ii. Conditional privilege: Plaintiff can only sue Defendant when malice is shown..................................54
B. Invasion of Privacy.....................................................................................................................54
a. Intrusion on a person’s seclusion...........................................................................................................54
b. Unreasonable publicity given to a person’s private life.......................................................................55
c. Placing a person in a false light..............................................................................................................55
d. Appropriation of a person’s name or likeness......................................................................................56
Harm to Economic Interest..........................................................................................................56
C. Deceit...........................................................................................................................................56
b. Deceit by Silence......................................................................................................................................57
D. Negligent Misrepresentation......................................................................................................57
E. Interference with Contract Relations........................................................................................58
F. Interference with Advantageous Relations...............................................................................58
Damages........................................................................................................................................58
C. Single judgment rule: P has one shot at getting their damages...............................................58

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 D. Collateral source rule:................................................................................................................59
E. Types of Damages:......................................................................................................................59
o Compensatory damages..........................................................................................................................59
 Economic Loss (out-of-pocket losses).................................................................................................59
 Non-Economic Loss (intangible damages)..........................................................................................59
o Punitive Damages (exemplary damages – these are rare)........................................................................59
 “Fault-plus” evidence needs to be shown to recover punitive..............................................................59
Random Things............................................................................................................................61
Sentences to Use:..........................................................................................................................63

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 Causes of Actions:
Negligence: duty, standard of care, actual case, proximate cause, damages
- Vicarious Liability
- Negligent Entrustment
- Premises Liability
- Negligent Infliction of Emotional Distress (NEID)
- Economic – privity, near privity, R § 552, foreseeability
- Medical Cases
o Medical Malpractice
o Informed Consent – negligence
o Informed Consent – intentional (battery)
o Loss of Chance
o Wrongful birth & Wrongful life
Strict Liability: duty, causation, damages
- Not product: Abnormally dangerous
Product Liability
- Strict Liability
o Manufacturing defect
o Design defect
o Failure to warn
- Negligent
o Manufacturing defect
o Design defect
o Failure to warn
Intentional Torts
- Assault
- Battery
- False Imprisonment
- Intentional Infliction of Emotional Distress
Defamation
- Libel: written
- Slander: spoken
Privacy Torts
- Unreasonable Intrusion on a Person’s Seclusion – no publication needed
- Unreasonable Publicity Given to a Person’s Private Life –offensive & not concern to public
- Placing a Person in a False Light – could be true or false statements
- Appropriation of a Person’s Name or Likeness
Harms to Economic Interests (Business torts)
- Deceit & Deceit by Silence
- Negligent Misrepresentation
- Interference with contract relations
- Interference with Advantageous Relations
Damages
- Noneconomic loss: Wrongful Death, Loss of Consortium, Pain & Suffering, Hedonistic

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 - Economic loss: Lost wages, Medical bills (past, present, future)
- Punitive damages (“exemplary”) ^Compensatory (noneconomic & economic)

CoA Defenses:
Negligence
- Contributory negligence
- Comparative negligence
- Avoidable Consequences
- Assumption of Risk – Tunkl Factors
o Implied Assumption of Risk
- Preemption
o Implied Preemption
- Emergency
Strict Liability
- Assumption of Risk
- Comparative Fault
- Preemption
- Statute of Limitations
Product Liability
- Protection against misuse of product
- Disclaimers and contractual waivers
- Statue of Repose & Statute of Limitations
- Preemption
- Assumption of Risk
- Bulk supplier defense
Intentional Torts
- Consent
- Self Defense
o Defense of a 3rd party
- Protection of Property
o Pets, land
- Private Necessity
- Immunities - perpetrator committed the tort, but because of their status, no consequence
- Privileges - justification for defendant's otherwise tortious behavior
Defamation
- Truth
- Privilege
Privacy Torts
- Consent
- 1st Amendment: Freedom of Speech
Business Torts
- Contributory negligence is not a defense
- Debate over whether comparative negligence is a defense

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Negligence:
- Negligence is a failure to behave with the level of care that someone with ordinary
prudence would have exercised under the same circumstances
- An unintended injury
Elements of a Prima Facie Case
A. Duty: defendant owed a plaintiff a duty of care
a. Generally, no duty to protect people from risks that you did not create, but there are
exceptions to the “no-duty” rule
b. Special relationships
c. Common carrier
d. If you start care, you have a duty to follow through
e. Commercial relationships can give rise to duties, as agreed in the contract
f. When you sell someone a product, duty to ensure the product does not create unreasonable
risks when used in a foreseeable manner
B. Standard of Care that was Breached: defendant breached the standard of care that was expected.
C. Actual Causation: defendant’s action (or inaction) was the actual cause of the plaintiff’s
injury
a. Actual cause - legal cause, "but for"- cause in fact
D. Proximate Causation: defendant’s action/inaction was the proximate cause of the plaintiff’s
injury
a. Proximate cause (where liability should attach): liable for potential & foreseeable
risks
E. Damages/ Injury: the plaintiff in fact suffered an injury

Plaintiff has burden of production of evidence: plaintiff must show through evidence the
elements of their case
Plaintiff has burden of proof – unless burden is flipped for special case (like RIL)

Duty
Physical Injuries
A. If you have a physical injury or property damage, you can recover for emotional harm due to
the damage anywhere/ in any state (try to make you whole)
B. Generally- No duty to rescue or warn, unless:
a. Creation of risk: Defendant owes duty when they created dangerous situation
i. Lacognata v. Hospira Inc.- The drug company (defendant) did not create the
plaintiff's vitamin A deficiency, so they were not responsible for when they
stopped manufacturing the vitamin injection.
b. Undertaking – If D starts to perform, takes on duty
i. Farwell v. Keaton: Joint venture (left friend in car after drinking together)
1. Defendant and decedent had been drinking together. Decedent was
beaten up and defendant drove him around and never got help.
2. Legal duty of every person to avoid any affirmative acts which may
make the situation worse.
c. If you undertake activities that could injure people, you have a duty to take
reasonable care

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 i. Ex: driving a car
1. Hammontree v. Jenner: P had a seizure while driving and crashed
into D’s shop. D tried to sue under Strict Liability. Court found it
would fall under negligence not strict liability.
2. "Liability of a driver, suddenly stricken by an illness rendering him
unconscious, for injury resulting from an accident occurring during
that time rests on the principles of negligence."
d. Superior knowledge alone is not enough on its own to create a duty
i. Harper v. Herman (guy diving into water off boat): No duty to adult. Adult
should have known of inherent dangers associated w/ water
1. Plaintiff dove off boat was paralyzed. Defendant owned the boat and
knew the waters were shallow.
ii. Superior knowledge is relevant when there is a commercial relationship
1. If boat owner was getting paid to take person out then sup. knowledge
is relevant
e. Don’t know if there is a duty? Rowland Factors:
i. Foreseeability of harm to P
ii. Degree of certainty that P suffered injury
iii. Closeness between D’s conduct & P’s injury
iv. Moral blame attached to D’s conduct
v. Public policy of preventing future harm
vi. Extent of burden to D and policy implications of such liability
f. Special relationships:
i. Contractual relationships (Privity of Contract)
1. Not in contract? Learned Hand – the more hurt people, the more you
are let off. Weird public policy.
2. Strauss v. Belle Realty (power outage, man fell, not in privity of K)
 Strauss did belong to narrowly defined class as a tenant &
injuries may have been foreseeable, but his relationship with
Consolidated Edison was no different from millions of other
city residents
3. Moch case: Water company owed no duty to supply water to fire
hydrant meant to put out a fire
ii. Landlord/ tenant
1. Landlord is in best position to take necessary protective measures, but
are justified in passing costs to tenants
iii. In-keeper/ guest
iv. Employer/ employee
v. Professional: attorney/client, physician/patient, teacher/ student,
accountant/client
vi. Parent or guardian or custodian/ child
1. Bjerke v. Johnson: the defendant agreed to look after a minor living
at her stable. The plaintiff, a minor at the time, had a sexual
relationship with the defendant’s adult boyfriend. The court found for
the plaintiff stating that the defendant had agreed to be a surrogate
parent/ custodial role and had a duty to protect her

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 vii. Common carrier/ passenger
viii. Joint venture/ common social undertaking
g. No duty
i. Crushing liability = defendant will be crushed if held liable
1. 2nd hand asbestos cases
2. Strauss v. Belle Realty
a. P fell down common area stairs during blackout. D argued P
was within area of someone else’s contract – privety of
contract
i. P was in a defined class & injury was foreseeable
ii. Court did not want to extend duty to millions of people
b. Court limited orbit of duty to limit the legal consequences of
wrongs to a controllable degree
i. If not limited, burden likely to fall on taxpayers. Public
policy problem.
ii. Social Host
1. No duty to protect guests from injuring each other
2. No duty to protect 3rd parties from drunk social guests
a. Reynolds v. Hicks (Minor left defendant’s wedding drunk then
drove and hit plaintiff)
i. Statute against minors drinking. Intended to protect the
minors, not random 3rd parties
ii. Court did not want to make social hosts liable for all of
their guests’ actions – no fun
iii. Comply with robber’s demands – no duty for shopkeepers
iv. Doctors
1. No physician-patient relationship when physical is performed for
insurance physicals or pre-employment physicals
C. Duty to third parties
a. Randi W. v. Muroc Joint Unified School District (School employee sexually
assaulted student)
1. Qualified privilege: person writing reference is protected against false
statements. Does not protect the person from saying knowingly false
statements.
2. In general, a person is not liable to another for nondisclosure or a
failure to act
3. Defendants should have foreseen that a child could be injured by their
misrepresentation of the employee
b. Availability, cost, and prevalence of insurance for the risk involved
i. Heins v. Webster County: Premises liability case
1. Plaintiff (Heins) fell while exiting a hospital (defendant). Plaintiff said
he was visiting to be Santa for the hospital - alleging he was an invitee,
but the hospital was arguing he was only at the hospital to visit his
daughter (licensee).
2. Court said hospital had duty to reasonable care because anyone could
fall on ice on their property.

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 c. Extended Duty: Defendant sued for their own negligence
i. D has relationship with A, A has a relationship with P, P sues D.
1. Not same as vicarious liability
ii. Therapists/ doctors – When is there a duty to disclose information?
1. Duty changes based on jurisdiction
2. Tarasoff v. Regents of the University of California (Therapist has
duty to 3rd party to warn of danger)
a. Man in therapy session threatened to kill ex-gf. Therapist told
police, but not the girl. Man killed girl.
b. There must be a specific threat where the person is reasonably
identifiable.
c. Bellah v. Greenson- Tarasoff does not apply where the risk is
"self- inflicted harm or mere property damage"
3. Third party must be specific and identifiable
a. Reisner: Dr. had duty to disclose that patient had HIV, patient
became sexually active but did not know she was HIV+, doctor
told her two years later. Doctor had duty to significant other
who contracted HIV.
i. Causal relationship: had the doctor disclosed the HIV,
the patient would have told the sexual partner.
b. Dr. had no duty to warn patient’s parents of suicide risk
4. Duty to tell children about parent’s genetic diseases
a. Pate: doctor did not disclose that the cancer was genetically
transferable. Court found duty to child who argued her cancer
would have been found sooner had she known the genetic link
b. Majority view: If patient tells doctor they don’t want anyone
told, then physician does not have to tell children
i. Genetic testing is more common now, so children could
just go get their own tests done
c. Genetic info: if you are going to offer info, you ask if they
want to know info first? Very unreliable info should not
necessarily be offered - more harm than good.
5. No duty to “strangers” that later become familiar with patient
a. Hawkins: distinguished from Pate. Doctor told patient that she
did not have Hep C even though she did. Husband later sued
for contracting it. Court ruled no duty because husband was not
known at time of negligence
iii. Statute can sometimes create a third-party duty
1. Reynolds v. Hicks (drunk nephew at wedding) plaintiff has to be in
protected class of the statute, in this case, they weren’t
iv. Other cases after: duty to 3rd party of patient when the 3rd party is known
d. Negligent Entrustment
i. Negligent Entrustment – Torts R2nd §390
1. One who supplies directly or through a third person a chattel for
the use of another whom the supplier knows or has reason to know to
be likely because of his youth, inexperience, or otherwise, to use it in a

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 manner involving unreasonable risk of physical harm to himself and
others whom the supplier should expect to share in or be endangered
by its use, is subject to liability for physical harm resulting to them
a. Suppliers of chattel: seller, lessor, donor, lender
ii. Vince v. Wilson (Defendant bought car for her grandson who was clearly an
incompetent driver. Duty to others on road.)
iii. Co-signer: can’t have negligent entrustment (Peterson v. Halstead)
iv. Car company: cannot be liable for renting a car to a guy with a license who
gets in a drunk driver accident. Can be liable for renting car to someone w/o a
license or if the guy is drunk when you give him the car. (Osborn v. Hertz)
v. Helping drunk guy at gas station get gas is neg.
vi. Keys in the ignition
1. Not negligent per se.
2. Duty limited to special circumstances: dangerous neighborhood, many
alcoholics nearby, car left for a long time, large vehicle, etc.
e. Employers:
i. Limited liability to employees. Employees can only get workers comp
1. Covers medical bills, lost wages, no pain and suffering
ii. Employees can sue employer’s contractors
1. Palka v. Service Master: Nurse’s tort suit against contractor – ability
to get pain and suffering as well as medical bills. Did not sue employer
hospital – only get workers comp from employer.

Nonphysical Harm - Negligent Infliction of Emotional Distress

A. Emotional Harm – Direct
a. Different state rules for recovery:
i. Physical Manifestation of Emotional Distress: sustained & severe
manifestations (heart attack, panic attacks, nausea, etc.)
1. Gammon v. Osteopathic Hospital: Plaintiff found severed leg &
thought it was his dad’s. Hospital’s negligence was so severe it is
borderline gross negligence
ii. Impact rule (some states still follow). "If you are close enough to get even a
minor touching -dust or pebbles- you were very close to physical harm and
can recover for emotional harm" (danger to yourself)
1. Contact that amounts to no more than exposure is not "physical
impact"
a. Metro-North Commuter RR v. Buckley – expose to
asbestos
i. Plaintiff was exposed to asbestos repeatedly at work
and tried to sue his employer under FELA for
emotional distress over fear of developing asbestos
related diseases and damages to cover cost of future
medical checkups.
iii. No Impact rule: may recover for purely emotional, zone of danger (danger to
yourself)

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 iv. Doctrine of non-liability: a person is legally responsible only for the natural
and proximate result of the negligent act.
b. No injury – plaintiff cannot recover if they do not have any symptoms
c. Medical malpractice: family cannot sue for their distress caused by hospital’s
negligence towards their family member
i. Johnson v. Jamaica Hospital: third party stole baby from hospital, hospital
did not owe to family (this case was not on behalf of the baby)
1.
d. Policy note – courts aren’t generous with plaintiffs when the outcome is happy
e. Potter v. Firestone Tire and Rubber Co.: plaintiff may recover in the absence of
physical injury for fear of cancer, when the plaintiff pleads and proves that the P was
exposed to toxic carcinogens as a result of D's negligence AND that the fear stems
from a knowledge, corroborated by reliable medical or scientific knowledge that the
P is more likely than not to develop cancer
B. Emotional Harm – Bystanders (danger to 3rd party that you witness):
a. Dillon Factors: Negligent infliction of emotional distress requires proof of 4
elements:
1. The death or serious physical injury of another caused by defendant's negligence
2. Marital or intimate familial relationship between a plaintiff and the injured person
3. Observation of the death or injury at the scene of the accident
4. Resulting severe emotional distress
5. Portee v. Jaffee: Mother watched her son trapped in elevator door, suffer, and
die. Mother had severe emotional distress (suicidal) afterwards. Perfect example for
NIED – bystander.
b. Falzone v. Busch: lady watched her husband get hit by car and was almost hit
herself, fear must be "reasonable" fear of immediate injury
c. Some states do not allow recovery for bystanders at all
d. No recovery if you mistake injured person for your family member
i. Court not sympathetic. You should be happy it wasn’t your family member.
e. Often no recovery for nontraditional families – like partners who are not married

Pure Economic Loss - negligence

A. Purely commercial context tort
a. Focus on professional defendants: consultants, lawyers, financial advisors
b. Restrictions on who can be a plaintiff
B. Can they sue? May depend on the jurisdiction. Some states apply the same rule, but apply it
very differently.
a. Privity of contract – clients. Extremely narrow, contractual parties only.
i. Can be a class, but must be well defined
ii. Ex: attorney- client. Doctor- patient. Contractual relationships.
b. Near privity – some non-contracting 3rd parties
i. Person can be sued: someone who provides mistaken/careless info
(negligently faulty) can be liable for economic loss for noncontracting 3rd
party if the 3rd party relies to their detriment
ii. Ex: Accountant knew the negligent report on advice was going to be used for
a particular purpose.

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 c. Restatement § 552 – some non-contracting 3rd parties
i. Acting through business
ii. Business person provides false info (must prove the provider knew it was
false)
iii. The 3rd party justifiably relied on the info
1. Do not need to prove actual knowledge. 3rd party does not need to be
a specific party, it can be a group, say "banks"
d. Foreseeability – any foreseeable party
i. Liable to anybody who could foreseeably get ahold of the info
ii. Large number of people can sue.

e. Nycal v. KPMG: who can sue?

i. Plaintiff used defendant's audit report to decide to invest in Gulf, Gulf filed
for bankruptcy 2 years later and Plaintiff lost (~16 million) money – P argued
under R 552 that he should be able to sue
ii. The defendant auditor accountant did not intend for Gulf to use their report for
the transaction and did not know of the transaction until after the transaction
occurred.
iii. Courts don’t want to reward laziness. People should do their own research for
their investments. SEC reports are used by many people, don’t want to let
them all sue.
f. LAN/STB v. Martin K. Eby Construction
i. Contractor tried to sue subcontractor project architect. 3rd party (contractor)
could not recover for negligent misrepresentation b/c of economic loss rule
ii. Economic loss rule: purely economic loss cannot be recovered unless you
have privity
g. 532 Madison Ave. Gourmet Foods v. Finlandia Center
i. Plaintiff had business closed for 5 weeks due to building nearby that had
severe structural damage that was recently aggravated and a wall fell. Other
businesses joined suit alleging all of businesses in the area suffered economic
loss.
ii. NY Court: if you are going to do business here, you should get business
interruption insurance…. Refused to follow foreseeability test

Procreation
A. Wrongful birth: suit by parents for having a child they tried to not have
a. A physician has a duty to patient for negligently performed sterilization procedure
b. Different state rules:
i. Limited Recovery Rule:
1. Immediate medical expenses
ii. Full Recovery Rule:
1. Medical expenses and cost of raising child
iii. Balancing:
1. Full recovery, with some offset where the court can lower recovery
based on the benefit you get for keeping the child.
iv. Handicap children:

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 1. "Special costs": most states will allow recovery for additional costs of
handicap.
2. Notice requirement- some states require that if you are getting
sterilized for the risk of genetic disorder, you must notify doctor.
These states will not allow you to collect for "random mutation"
illness recovery.
iii. R § 920: "[w]hen the defendant's tortious conduct has caused harm to the
plaintiff or to his property and in so doing has conferred a special benefit to
the interest of the plaintiff that was harmed, the value of the benefit conferred
is considered in mitigation of damages, to the extent that this is equitable."
c. Emerson v. Magendantz: Plaintiff underwent a negligently performed sterilization
procedure & became pregnant afterwards. P delivered a healthy baby & kept it. She
then underwent another sterilization procedure. Plaintiff sued to obtain damages for
medical expenses, emotional distress, and costs of raising the child
i. Court said physician had duty, so awarded medical costs, but followed limited
recovery rule b/c court said parents keeping child indicates p thought benefits
of raising a healthy child outweighed the costs/ burden
ii. “Joy Rule”
- idea that pregnancy is a total joy or blessing that absolves the negligent
physician from practically all liability to his victim patient
iii. The "abort, give away, and get no emotional trauma and child support
damages" rule
- appears to deny a woman's constitutional right not to have children.

B. Wrongful life: (cannot sue anywhere) suit on behalf of child born after parents tried to stop
their unborn child from having health problems
a. Wrongful life cases are not recognized anywhere. Courts won't decide on the position
whether someone is better off if they were never born.

Vicarious liability
 Any time you could have vicarious liability, there is also a possibility of direct liability!!!
 Imputing liability: doctrine that lets one person be held liable for a tort committed by
another person
o The principal is liable for negligent acts of an employee acting within their
foreseeable scope of employment
o Elements: Birkner factors (4 W’s)
 Who did the tort?
 Threshold issue
 What did they do?
 Was the tort related to their work functions?
 Why did they do the tort?
 Was it to further the employer’s objectives or was it strictly for the
employee’s own purposes?
 Where and When did they do it?
 Were they at work and during normal working times?

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 o Christenson v. Swenson: employee, but question was whether she was within
scope of employment.
 Defendant (employee) was in car accident with plaintiff while picking up
lunch. D was expected to each lunch at her work. Court found reasonable
minds could differ whether she was out of scope of employment – no
summary judgment, so fact finder would have to decide.
 Even if an employee is breaking company rules, it does not mean that their
actions were not motivated by serving the employer's interests.
 They could be breaking rules while attempting to fulfill other
interests of employer – still within scope of employment
o Must prove that a tort was first committed, then find if employer could be
responsible
 Scope of employment problems: courts work hard to find that employees were within the
scope of employment
o Cosmetic policies against things that employers actually want employees to do.
 Even if employer said “don’t do it”, they can still be liable.
o Court will look at whether the employer profited from the behavior that is
ostensibly forbidden by company policy
 Ex: Truck drivers driving longer than the limited 8 hours to meet
deadlines.
 Limitations:
o Employers not typically liable for independent contractors
o Intentional torts: under common law, employer traditionally was not liable
 Modern trend to hold employer liable if the tortious act was somehow
within the scope of work.
 Bouncer who is too aggressive and punches a dude in the face – bouncer
could still be within scope of employment
 Lisa v. Henry Mayo Hospital: (1995) hospital technician sexually
assaulted patient, court found that the assault was “not a risk predictably
created by or fairly attributed to the nature of the technician’s
employment”
 Trend now is to hold hospital liable for employees who sexually
assault patients because it is foreseeable

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Independent contractors:
 The distinction between employer and independent contractor is key.
o Court looks at substance of relationship to determine if the agent is an
independent contractor or employee
 Employee is paid a salary or wage, rather than paid on a piecework or per
job basis
 Employees are not necessarily doing work that is highly skilled or highly
specialized (although they can be)
 Employees tend to not own their own business. They tend to be using tools
supplied by the principle/ employer and often work at the principal’s place
of business.
 Employees are usually long-term workers
o Independent contractors tend to
 (1) own their own business,
 (2) have their own tools,
 (3) get paid by the job or amount of service,
 (4) short-term,
 (5) specially skilled…like a pool cleaner or surgeon
o Roessler v. Nowak: doctor was not an employee of the hospital, he was an
independent contractor. Hospital is not liable unless there is a special situation-
like if doctor had apparent authority to act for the hospital, or was performing a
non-delegable duty
 Liability for independent contractors:
o IC was hired to perform an inherently dangerous activity
o IC was hired to engage in a nuisance
o Nondelegable duties
 “Borrowed Servant”
o Employer no longer responsible for employee’s actions
o Most common in hospitals where employee nurses are “borrowed” by IC doctors
and become their borrowed servant. The doctor becomes responsible for the
nurse.
 “Fellow Servant”
o Involves a tort committed by an employee against another employee (coworker)
at work
 The injured person can only sue their coworker, not their employer
 Partnerships: Liable for partners torts w/in scope of their business
 Joint Enterprise or Joint Ventures: If two or more people are in a joint enterprise, then the
tort of one may subject the others to vicarious liability.
o Ex: Friends drag racing their cars. Injured 3rd party can sue either or both of the
people participating in the common, dangerous venture
 Parents & Children: parents not vicariously liable for bad acts by their kids. Parents can
be liable for their own torts though: example - negligent supervision.

Role of Statutes:
A. Statutes can create a duty
B. Private Right of Action - can victim of statutory violation sue violator at all?

16
 a. When does a statute create the right for a private party to sue – expressly or through
evaluation
b. Elements: Three prong Sheehy Test for silent statutes
1. Protected class – whether the plaintiff is one of the class for whose
benefit the statute was enacted
2. Promote purpose- whether the recognition of a private right of action
would promote the legislative purpose
3. Consistent w/ legislative scheme- whether the creation of such a right
would be consistent with the legislative scheme
c. Statute may be express language to allow or express no right. If silent, infer right of
action and evaluate 3 prong test
i. Uhr v. East Greenbush Central School District
1. Little girl was not checked for scoliosis even though education law
called for children to be tested. She ended up needing surgery, which
doctors thought would not have been so bad if caught earlier
2. Statute can create duty sometimes…. 3 prong test
1) 1 & 2 met, but not 3rd prong – statute has its own enforcement
mechanism, so allowing suit would be the 2nd and costly
d. Try and bring an independent privacy tort for standard of care at common law if
private right of action is rejected
C. Negligence per se – does violating applicable statute is automatically a breach of SoC?
a. Violation of statute may just be evidence that there is negligence
b. Violating a statute or regulation may amount to an automatic breach of the tort
standard of care
i. If you break a safety related law and injure someone, the law is relevant
1. Martin v. Herzog - Not having a car light is negligence per se since
the law to have one was created for safety.
1) The defendant was charged with negligence for failing to keep
to the right of the center of the highway. The plaintiff was
charged with negligence for travelling without lights
ii. Elements: R2nd § 286 “when the standard of conduct defined by a [statute] is
adopted”
1. (a) to protect a class of persons which includes the one whose interest
is invaded, and
2. (b) to protect the particular interest which is invaded, and
3. (c) to protect that interest against the kind of harm which has resulted,
and
4. (d) to protect that interest against the particular hazard from which the
harm results.
iii. Reg practice of breaking the statute is not a defense against neg. per se
iv. Excused violations: R3rd § 15: An actor’s violation of a statute is excused
and not negligent if:
1. (a) The violation is reasonable in light of the actor’s childhood,
physical disability, or physical incapacitation
2. (b) The actor used reasonable care in attempting to comply with the
statute

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 3. (e) The actor’s compliance with the statute would involve a greater
risk of physical harm to the actor or to others than noncompliance
1) Tedla v. Ellman- Statutes are meant to protect life, limb, or
property. You cannot reasonably expect a person to follow a
general rule of conduct intended to prevent accidents when
observance might cause accidents

Governmental Immunities
A. You will know you have FTCA question when she gives a statute (paragraph of
what is in statute), you have to figure out if actions are ministerial or discretionary
B. When can the gov’t be sued?
 Three levels:
1) Baseline rule before FTCA – you can’t sue the fed gov’t in tort
2) FTCA creates an exception – allows some tort suits against fed gov’t,
subject to restrictions
3) Exception to FTCA, certain suits are never allowed
a. Federal Torts Claim Act (FTCA) allowed for people to sue gov’t. There are
some exceptions
i. District courts have juris. of civil actions on claims against the U.S., for
money damages, for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee of
the Gov’t while acting within the scope of his office or employment
- Cases are tried w/o a jury
- US is not responsible for interest prior to judgment or punitive
damages
- Limits attorney fees to not more than 25% of any judgment
- Provides that the remedy is exclusive of other civil action
ii. Discretionary function- use personal judgment for action
- When someone can sue (2 steps)
b. Whether any federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow AND
c. Whether the discretionary acts of the gov't employee are of a
nature that Congress intended to shield from tort liability.
- You can sue for minor discretion. You cannot sue for major
discretions.
d. Major discretions affect big things like entire U.S. economy
iii. Ministerial function- rules/laws meant to govern action - explicit
instructions
- You can sue: Ignoring clear instructions. Not using due care.
a. Did the act, acted in good faith effort. No suit.
iv. How do you know if it is Ministerial vs. Discretionary?
- Look at statute, look at regulations - in the language (not explicitly)
- Discretionary has a lot more detail.
- Does it say "must, shall, may?"
- Within a statute, some parts may be ministerial and other parts
discretionary- more often than not, it is discretionary in U.S

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 f. Cope v. Scott: (Wet, curvy road - Cope sued alleging the park was negligent in
failing to maintain the roads and maintaining adequate signage- both are
discretionary.
i. You can sue for little discretionary decisions
1. Big: do we fix the bridge falling down? Or fix a slippery road?
2. Little: should the signs be orange? Or red?
g. Suits that are NOT allowed - 28 U.S.C. 2680:
i. Any claims based on:
1. An act or omission of an employee of the gov’t, exercising due
care, in the execution of a statute or regulation, whether or not such
statute or regulation be valid, or
2. The exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or
employee of the gov’t, whether or not the discretion involved be
abused
ii. Disallows suits related to faulty transmission of mail by post office
iii. Limits intentional tort suits
iv. Disallows suits for mismanagement of the monetary system
v. Disallows suits for combatant or military activities in time of war
D. Duty of the Police
a. Generally, police only have a duty to the public, not to individuals
b. When is there a special relationship w/ police?
i. Cuffy Factors:
1. An assumption by the municipality through promises or action, of an
affirmative duty to act on behalf of the party who was injured
2. Knowledge on the part of the municipality's agents that inaction could
lead to harm
3. Some form of direct contact b/w the municipality's agents and the
injured party
4. Justifiable reliance
c. Lauer v. City of New York
i. Any member of government does not have a duty to an individual of the
public unless they have a special relationship or if the defendant gov't
assumed an affirmative duty to the plaintiff individual on which the plaintiff
may have reasonably relied upon
1. Sorichetti v. City of New York (Assumed an affirmative duty case):
Plaintiff had a protective order, the father had a documented violent
history, and the front desk police officer made assurance, so the court
ruled the police had a duty
2. If you speak to 911 operator and they assure you the police is on their
way, then they may have a duty.
3. Schuster v. City of New York: (special relationship with police)
Schuster was killed for helping the police. The police exposed him to
additional risk, so they had an affirmative duty to protect him

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 d. Riss v. City of New York
i. Riss (plaintiff) tried to sue the City of New York (defendant) for failing to
provide protection to her after she called the police multiple times to try to get
protection when her ex was threatening her and she ended up having lye
thrown in her face by a thug hired by her ex
ii. Generally, no tort liability for police protection to individual members of the
public. Too costly

 Party giving reasonable effort to follow law? No suit

Ministerial  Party acting unreasonably? Yes suit
Government Act
Discretionary Big discretionary act (cost-benefit/budget)? No suit
 Small discretionary act? Yes suit

Standard of Care/ Breach:  

SoC is the degree of caution required of an individual who is under a duty of care. Standard of
Care is determined from case facts.

A. Calculus of risk – D must be breach SoC to be liable

a. Learned Hand – Hand Formula: B < PL
i. Burden (inconvenience of prevention) < Probability of an accident x Loss that
occurs
1. Any preventative step of which the burden is less than the potential harm
must be taken
2. Cost inquiry to burden must be done
ii. When B<PL then you should take safety measures, failing to do so breaches
standard of care
iii. United States v. Carroll Towing Co
1. Barge owned by Connors (plaintiff) had cargo owned by the US
(plaintiff). Barge broke lose from the tug Carroll (defendant). The barge
rammed into a tanker which broke a hole in the barge causing it to sink.
2. P was negligent themselves b/c while the barge should not be the
bargee's prison, that the bargee should be on board during working hours
& he wasn’t. This would ensure some adequate care when work is
completed with "inevitable haste and bustle"
b. Industry standard
c. Common practice – useful in influencing decision
d. Statutes
e. Ordinary v. Extraordinary standard

B. Ordinary standard of care

a. Reasonable person standard: what an ordinary prudent person would do
b. If you know there is a hazardous condition, then you have a duty to make safe or warn
people
c. Must take reasonable care to prevent foreseeable harm & fix/warn of known risks

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 i. Adams v. Bullock – (little boy swinging wire on bridge was electrocuted by
trolly wire) unforeseeable accident, a very remote risk of someone swinging
wire around. Trolley wire was not accessible by regular means & could not have
been insulated.
1. Case also has hints of charitable immunity for the bridge, but this is not
applicable for cases today
2. Braun: wire hung that was expected to stay insulated 3 years, near an
area that was becoming more developed. 15 years later, a carpenter was
electrocuted
a. This was a foreseeable risk for the future as the land was
developing and they new the insulation would eventually fall
off/ need maintenance
ii. Green v. Sibley – it would not be reasonable to have everyone warn of your
movements before you move
1. Woman claimed a worker should have warned her that he moved behind
her
2. She fell over the man since she did not see that he moved behind her and
claimed she was injured
d. Actual notice – D must have actual notice of hazard to be responsible for failure to
fix
i. Prove state of mind through witness, previous attempt to fix, camera footage
ii. Negri v. Stop and Shop – baby food on floor was blackened/dirty, evidence it
had been there for a while. D knew or should have known of it. D should
inspect floors of its business.
iii. Gordon v. American Museum – P fell on white food paper, general awareness
of potentially dangerous condition is not enough, not negligent if you don’t
know or have reason to know of the hazard
e. Industry norms
i. What is customarily done is reasonable, but it is not definitive to make decision
ii. Trimarco v. Klein – departing from custom or accepted practice is a departure
from standard of care
1. Plaintiff was badly hurt when he fell through a glass door, where the
glass door "no longer conformed to accepted safety standards"
f. Custom practice
i. 1920 radio on tugboat case: Even though it was custom to not have a radio,
they should have had a radio on the boat because it would not have cost much
money, so the benefit outweighs the burden
ii. Customs are always a relevant factor, but not dispositive of a standard of care
1. Customs will lose to the law
g. Business practice - continuous and foreseeable risk of harm
i. Past pattern could be used for showing foreseeable risk
ii. Court will allow patterns if you are talking about hiring a negligent employee
h. Contract
i. Explicit terms in contract can provide what the standard of care would be
ii. Also would look at other things like statutes for contractual relationships

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 i. Children
i. Reasonable child standard – children held to standard of what a reasonable child
of their age would do
ii. Very young kids cannot be held for negligent torts- usually age 5 is the limit,
but they can for intentional
iii. Children engaged in adult activities (activities that only adults engage in), most
cases require child to conform to same standard as adults
- Ex: child driving a car
j. Disabled persons
i. Physical disability are held to the standard of a reasonable person with similar
disability
ii. Mental disability is treated as something that cannot be judged (hard to prove),
so they are held to the standard of a reasonable person
- You are still liable for torts if you are insane

C. Extraordinary standard of care - You need to make things safe that you know have a risk,
you also have a duty to inspect and discover unknown risks and repair/warn the unknown
risks
a. Duty to invitees for premises liability
b. Actual notice: witness, previous attempt to fix, camera footage - proving a state of mind
c. Constructive notice: show patterns of practice
i. Easier for P to prove than actual notice
d. Common carriers: was under extraordinary standard of care – need for higher level b/c
people did not have many options for transport
i. Some jurisdictions still hold common carrier to extraordinary
ii. Bethel v. NYC Transit Authority (1998) – updated common carriers to ordinary
standard of care
1. Bethel (plaintiff) was injured by a "wheelchair accessible seat"
collapsing on a bus and sued NYC Transit
2. The court ruled that through technological advances and intense gov't
regulation that public transit is at least as safe as private transit
iii. Andrews v. United Airlines (1994) – Plaintiff was injured by bag falling from
overhead bin. Sometimes a warning is not enough.
1. United airlines flight crews do issue warnings upon arrival that items
stored overhead might have shifted in flight and passengers should use
caution in opening bins
2. United failed to demonstrate that adding any additional safety features
would be prohibitively expensive, nor that such steps would grossly
interfere with the convenience of its passengers

D. Negligence per se – see above pg.

a. Act was negligent in itself
b. When a statute requires an affirmative action, the failure to perform that action
constitutes a violation of a legal duty

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E. Res Ipsa Loquitur – the thing speaks for itself
a. Plaintiff must ask to proceed under RIL
b. Res Ipsa Loquitur: alternative method that may let a plaintiff survive summary judgment
& get to the jury in a negligence case, even if the plaintiff lacks evidence to make out all
the elements of a negligence case
i. Three elements
1. The accident must be of a kind which ordinarily does not occur in the
absence of someone's negligence
2. It must be caused by an agency or instrumentality within the exclusive
control of the defendant
3. It must not have been due to any voluntary action or contribution on the
part of the plaintiff
c. Effect of Res Ipsa Loquitur
i. Inference version: lets P get to the jury, but P still has burden of proof & D is
under no burden to produce evidence
1. D can win even if silent
ii. “Middle” version: lets P get to the jury, P still has burden of proof at trial, but
puts burden of producing evidence on D.
1. D must provide some alternate version of what happened
2. P must prove their version of events is more persuasive
3. P could win on directed verdict (or judgment as a matter of law) if D
does not produce alternative explanation
iii. Strongest version: let P get to the jury, flips burden of proof at trial to D
1. If P and D’s version of events are equally plausible, D would lose
d. Assume you use inference version, unless you are informed the relevant jurisdiction
treats RIL differently, or… bad enough to use stronger RI
e. When are cases bad enough to flip the burden?
i. Defendant destroys key evidence "spoliation of evidence"
1. McDougald v. Perry: Defendant got rid of the tire (evidence), so
plaintiff would be unable to prove breach of standard of care. Court
decided RIL applied and flipped burden to defendant to prove.
ii. Defendants conspire in silence
1. Ybarra v. Spangard: Strongest version of RIL applied. P was
unconscious, arm shouldn’t have been injured during other surgery,
doctors/medical staff were conspiring in silence. Judge flipped burden.
iii. "Bad behavior" of defendants makes the court mad
f. Byrne v. Boadle:
i. Witness claimed that a barrel of flour fell from a window above in defendant's
house and shop and knocked the plaintiff down.
ii. The plaintiff recalled no one called out to warn of potential danger and he saw
no danger, but was nevertheless injured
g. Hotel cases
i. Larson v. St Francis Hotel: Not res ipsa b/c the hotel did not have exclusive
control over the situation. Hotel guests are an intervening force
1. Plaintiff has no way of proving what happened in the hotel that led to the
chair flying out the window. Defendant hotel unlikely to know either.

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 ii. Connolly v. Nicollet Hotel: The hotel knew about the danger going on for days
and did not do enough to try to stop it

F. Medical Malpractice
a. To win a med mal case, you must
i. Prove the relevant recognized standard of medical care and;
ii. Prove the defendant departed from that standard
1. Med Mal does not follow the regular, ordinary person standard
b. Standards for med mal cases
i. Arpin v. US - holding residents to the same standard of care as physicians who
have completed their residency in the same field
c. Witness for med mal
i. To prove standard of care in medical cases, you must have an expert witness.
ii. "Same locality" and "same and similar locality" rules are outdated. We want all
doctors to have same level of care & with today’s technology, no excuses to not
have high level of care.
- “Same locality” – must get doctor expert from same locality that tort
occurred in
- "Same and similar locality" – must get a doctor expert witness from
the same or a similar locality that the tort occurred in
- Rules for getting doctor expert witnesses within the area or similar
area in recognition in differences in "opportunities, experience, and
conditions" between densely and sparsely populated communities
- "Same locality" rule created a possibility for a conspiracy of silence in
a plaintiff's locality, so “same and similar locality” was adopted
iii. Sheeley v. Memorial Hospital- Same or similar locality is outdated.
1. A proposed expert witness with a board certification that reflects a
national standard of training and qualification in the particular specialty
in which the procedure in question is, is qualified to render an opinion.
d. Informed Consent
i. Battery theory of informed consent
1. Unconsented touching- touching turned out to be harmful
a. Withholding treatment is not battery
2. No consent at all
a. Fraud in getting consent = no consent
b. Ex: Did not consent to the other doctor to perform the surgery
ii. Negligence theory of informed consent
1. Consent was somehow defective
2. By not telling someone their options, you are taking away their ability to
consent - negligent failure to do a good job of informing someone
iii. Implied consent – actions may imply consent
1. Ex: if you stick your arm out when doctor is performing shots
iv. Matthies v. Mastromonaco – to have informed consent, a doctor must explain
all reasonable methods of treatment, including those he recommends and those
he does not

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 1. Matthies (plaintiff) lost function in her leg after Mastromonaco
(defendant) prescribed bed rest rather than surgery for treatment of
plaintiff's broken hip.
2. People should be given the choice for their medical treatment when there
are multiple valid options
v. Consent standards for duty to disclose treatment:
1. Customary professional standard – what do other doctors disclose?
2. Reasonable professional standard – what would a reasonable doctor
disclose?
3. Objective patient – what would a reasonable patient want to know?
4. Subjective patient – what would this specific patient want to know?
e. In 2003, Texas passed med mal practice reform that makes it difficult for patients to
sue doctors.
i. This reform lowered amount of damages you can claim
ii. Health care torts are now worth less – damage caps
1. Wrongful death capped at $500,000 (in 1977 dollars – amount adjusted
annually for inflation – today is almost $2 million)
2. Noneconomic damages capped to $250,000 for physician or health care
provider for each claimant, regardless of the number of defendants
3. Noneconomic damages capped to $250,000 per healthcare institution
4. Total noneconomic damages $750,000 cap ($500,000 from healthcare
institutions and $250,000 from physicians)
iii. Statute of Limitations
1. No med mal action may be brought more than two years from the date of
the breach or tort or from the completion of treatment
a. Two years for minors will not begin to run until they reach 18
years old
b. No “discovery rule” (other states allow statute of limitations to
begin once injury is discovered)
c. If plaintiff can prove injury was fraudulently concealed, then
the statute of limitation can be extended
d. The date of injury is used in med mal cases resulting in death–
not date of death
2. Statute of limitations can be extended 75 days upon notice of intent to
assert a claim
iv. Notice
1. Person asserting a health care liability claim must give written notice of
such claim by cert. mail, return receipt requested, to each healthcare
provider against whom claim is made at least 60 days before the filing of
suit. Notice must be accompanied w/ release of protected health info
v. Pre-judgment interest: accrues from the date of injury through one day prior to
entry to judgment. Only accrues for past damages, it does not accrue for
compensation for future loss.
vi. Pretrial mediation is routine. Arbitration is not mandatory.
vii. Texas follows comparative negligence
1. If plaintiff’s liability is greater than 50%, he cannot recover at all

25
 viii. Joint & several liability only applies if D’s liability is greater than 50%
ix. Vicarious liability for independent contractors… P must show
1. He had reasonable belief that the physician was the agent or employee of
the hospital,
2. Such belief was generated by the hospital affirmatively holding the
physician out as its agent or employee or knowingly permitting the
physician to hold himself out as such, and
3. He justifiably relied on the representation
- Hospital not liable for physicians’ error on theory of negligent
credentialing unless it acted with malice
x. Expert Reports
1. P w/in 120 days after filing health care liability claim must serve other
party one or more expert reports, with curriculum vitae, of each expert
listed in the report for each physician against whom claim is asserted
a. Court may grant 30 day extension
b. Court may grant challenge on the expert report if the report
was does not represent a good faith effort to comply with the
definition of an expert report
2. Until expert report is served, discovery is stayed, except for acquisition
of healthcare info by P
3. After claim is filed, P cannot take more than 2 depositions before expert
report is served
xi. Expert Testimony
1. Generally expert testimony is needed to prove prima facie case of med
mal
2. Qualification for expert = physician who:
a. Is practicing at the time such testimony is given or was
practicing medicine at the time the claim arose;
b. Has knowledge of accepted standards of medical care for
diagnosis, care, or treatment of illness, injury, or condition
involved in the claim; and
c. Is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standard of medical
care
f. Latency
i. Ex: Doctor leaves sponge in you after surgery (2013), you keep going to doctor
with pains, but they say nothing is wrong. In 2017, you have another surgery for
unrelated problem and they find the sponge.
1. Most states have a discovery rule - this would start in 2017 for this case.
Texas does not have this.
ii. Discovery rule: statute of limitations begins when injury is discovered

Premises liability
A. Harms due to condition on the land.
a. Exceptions:
i. Unreasonably dangerous conditions adjacent to your land.

26
 - Ex: Putting barricade to prevent people from falling into an excavation
at the edge of property
ii. Duty to take precautions to protect persons passing by from dangerous
conditions on your land
B. A person on another's land is either a (1) trespasser, (2) licensee, or (3) invitee.
a. There is a duty to all, but standard of care varies significantly (varies on jurisdiction)
i. Traditional: three labels
ii. Modern: no labels
1. Abolish distinction b/w invitee & licensee.
2. Heins v. Webster County: Labels can get too picky – if person could
really be either, you should take the precaution for foreseeable harm.
1) Plaintiff (Heins) fell while exiting a hospital (defendant).
Plaintiff said he was visiting to be Santa for the hospital -
alleging he was an invitee, but the hospital was arguing he was
only at the hospital to visit his daughter (licensee)
b. Trespasser:
i. Standard of limited care
1. No wanton or willful injury
2. No duty for natural conditions of the land
ii. Child trespassers are unique – section 339 restatement (attractive nuisances)
1. Landowner is responsible for unnatural/ artificial conditions
2. The condition is one that the landowner should have known it posed a
risk to children
3. Children do not appreciate the risk due to their youth
4. The utility to maintain is slight as compared to the risk
 Attractive nuisance: ex- Kids are drawn to swimming pool. It does not
have to be "attractive" in the sense of it being nice.
c. Licensee: social interactions
i. Standard of ordinary care: fix or warn of known hazards
d. Invitee: public or business
i. Standard of extraordinary care: fix or warn of known hazards + must inspect
(liable for hazards found upon reasonable inspection…aka actual +
constructive)
1. Public invitee:
1) Walking into a store to use restroom
2) Park, Museum, Church
3) If you get to a public park/ space and there is no one there to
take your money and the gate is open, you are an invitee. Note:
If the gate is closed, you are trespassing.
2. Business invitee:
1) Invited to convey material benefit to the owner
2) Shopper in store
e. Carter v. Kinney:
i. Carter (plaintiff) tried to sue Kinney (defendant) because he slipped in the
defendant's driveway on a patch of ice while walking into the defendant's
house for bible study and broke his leg.

27
 1. Plaintiff's lawyer should have argued that the defendants should have
actual notice that ice would have formed overnight in February in
Missouri (standard for licensee)
ii. An entrant becomes an invitee when the possessor invited with the expectation
of a material benefit from the visit or extends an invitation to the public
generally
C. Modern Premises liability: harms caused by visitors who hurt people on your land (duty to
keep your own property safe)
a. Tests used to determine premises duty & standard of care:
i. Specific harm test: if possessor knows of imminent harm, there is a duty to
help
- Very landowner friendly. Super narrow to win as Plaintiff, under
protects.
ii. Prior similar incidents test: foreseeability is established by evidence of
previous similar crimes on or near property, there is a duty to prevent
- Burden on landowners in high crime areas. Bad social effects. Nice
towns have grocery stores, but high crime towns have no grocery stores.
iii. Totality of the Circumstances test: takes nature, condition, and location of
the land into account (similar incidents + any other factor to make crime
foreseeable), there is a duty to prevent
- Too defendant unfriendly. Plaintiff can win many ways.
iv. Balancing test: cost of prevention vs. benefits of prevention
- Only test that takes economics as a factor. Balanced to help P & D.
b. Posecai v. Wal-Mart Stores, Inc.: Court used Balancing Test.
iii. Plaintiff was mugged in parking lot at gunpoint in the defendant's parking lot.
Plaintiff contends that Sam's was negligent in failing to provide security in the
parking lot.
iv. There was a low risk of crime in the defendant's parking lot and the high cost
of an extra security guard in the parking lot would be too great, so the
defendant owned no duty to the plaintiff to protect from a 3rd party
e. A.W. V. Lancaster County School District
i. A kindergarten student (plaintiff's son) was sexually assaulted in the bathroom
at school (defendant). Defendant alleged that they did not have a duty as the
assault was not foreseeable. School was not very secure.
ii. Instructors must exercise a standard of reasonable care to protect students
from reasonably foreseeable risks of harm.

E. 4 types of torts related to land:

a. Harms due to condition on the land. (Premises liability)
b. Harms from things you do that bother neighbors. (Nuisance)
c. Harms from activities on your land.
d. Harms caused by visitors who hurt people on your land. (Modern Premises liability –
duty to keep your own property safe)

Causation
 Legal cause is both actual and proximate cause

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A. Actual Causation
a. P’s injury would not have occurred “but for” D’s action/negligence
b. Cause-In-Fact
c. Proof
i. D’s negligence probably caused the injury – “more likely than not”
- Must rule out other possible causes
- Stubbs v. City of Rochester – P must show with reasonably certainty
that D caused P’s injury
o Contaminated water caused typhoid fever
o Statistics - always some cases of typhoid at the time, during
this time, there was an excess of cases.
- Don’t want to make the standard to win too difficult/ all P’s lose
(underdeterrent for D) or too little/ all P’s win (overdeterrent for D)
ii. "Substantial factor test" (pg. 346) - used where there are multiple sufficient
causes
1) Zuchowicz v. United States – Defendant's doctor employees
negligently directed plaintiff in taking medication – shifts burden of
proof to D with 2 elements
a. Negligent act was wrongful b/c it increased a particular type of
accident
b. That particular type of accident occurred
iii. When is expert testimony admissible?
1) Frye “generally accepted” standard
2) Daubert four factor test (interpretation of Fed R of Evidence 702)
a. whether the methods upon which the testimony is based are
centered upon a testable hypothesis;
b. the known or potential rate of error associated with the method;
c. whether the method has been subject to peer review; and
d. whether the method is generally accepted in the relevant
scientific community
d. Injury limitations
i. Injuries with no clinical symptoms are not compensable
ii. Two disease rule: where plaintiff develops a second disease as a result of the
first disease caused by negligence tort. Plaintiff can only recover for the
second disease and related emotion distress when the 2nd disease actually
occurs.
e. Medical cases

29
 i. "All or nothing" rule of tort recovery: if patient had less than 50% of survival,
blanket release from liability for doctors/ hospitals regardless of how flagrant
the negligence.
1) If you show all elements, you win everything (100% of value of life -
pain& suffering, loss income, hedonistic damages)
2) "fails to deter" medical negligence
ii. Loss of chance: plaintiff must prove by a preponderance of evidence that the
physician's negligence cause the plaintiff's likelihood of achieving a more
favorable outcome to be diminished.
1) Give portion of damages
2) Too hard to measure percentages for every case
iii. Proportional damages approach: (straight diagonal line on graph) the
percentage probability by which the defendant's tortious conduct diminished
the likelihood of achieving some more favorable outcome.
iv. Matsuyama v. Birnbaum – Doctor’s negligence reduced P’s chance of
survival from 30-50% to 0-4% and P died. Court used loss of chance rule.
1) If doctor reduces chance for survival & P survives w/o additional
injury, P cannot recover
2) Iatrogenic injury is caused by the care itself. Ex: injury caused by
surgeon leaving sponge in patient

B. Proximate Cause

a. All proximate causes are actual causes

b. Proximate cause – where liability should attach. Liable for potential and foreseeable
risks

i. Was the plaintiff reasonably foreseeable?

ii. Was the injury/harm reasonably foreseeable?

c. Unexpected victims: Was the P foreseeable & was the injury foreseeable?

i. Palsgraf v. Long Island Railroad – algorithm of factors to look at whether

plaintiff is foreseeable. Palsgraf was injured from the subsequent explosion of
package dropped by a passenger containing fireworks and sought to hold the
railroad liable for negligence.

1) Zone of danger (Cardozo/ majority opinion): would the defendant

been aware of the plaintiff? Was the plaintiff in the zone of danger?

2) Unbroken chain of events (Andrews/ dissent): was the type of harm

foreseeable?

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 a. Problem because any injury could be foreseeable if you look
hard enough

d. Unexpected Harm

i. R2nd 461: “The negligent actor is subject to liability for harm to another
although a physical condition of the other… makes the injury greater than
that which the actor as a reasonable man should have foreseen as a
probable result of his conduct.”

ii. Benn v. Thomas – eggshell plaintiff = extra harm to plaintiff that may not be
foreseeable by defendant

1) P & D involved in a car crash caused by D's negligence. Decedent had

a history of coronary disease and had a previous heart attack before
crash

2) Eggshell plaintiff rule widely applied for physical illnesses

a. Requires D to take his P as he finds him, even if that means

that the D must compensate the P for harm an ordinary person
would not have suffered

b. Court are more leery of using eggshell plaintiff for mental

illness

iii. In re an arbitration between Polemis and another: Defendants caused a

wood board to drop, which caused a spark, which ignited petrol vapor and led
to a giant fire that destroyed the plaintiff's ship

1) A party whose action that foreseeably could cause some harm and was
negligent, could be held liable for damage inflicted by an
unforeseeable harm that actually occurred

2) Learned Hand: to make prudent decisions to avoid harm, you need to

know what kind of harm there is

a. On this ship, had the people know of the potential loss, they
may not have just laid down the wooden board and may have
fixed it to the ship

iv. Overseas Tankship v. Morts Dock (The Wagon Mound)

1) Overseas Tankship crew had carelessly allowed furnace oil (also

referred to as Bunker oil) to leak from their ship.

31
 2) Mort's dock caught on fire and was not functioning for a period of
time. Wagon Mound (WM) would have been completely responsible
under Polemis

a. Problem: at the time, many people thought oil on water could

not burn

b. Mort stopped work and then restarted - privy council thought

Mort had some foreseeability since he stopped work initially

e. Superseding Causes

i. The role of intervening forces or actors in the proximate cause inquiry

1) If a person intervenes, they can become the actual cause

ii. Restatement of Torts 442B: a negligent defendant, whose conduct created or

increases the risk of a particular harm & is a substantial factor in causing that
harm, is not relieved from liability by the intervention of another person,
except where the harm is intentionally caused by the third person and is not
within the scope of the risk created by the defendant's conduct

iii. Doe v. Manheimer

1) Test for cause in fact is would an injury have occurred were it not for
an actor's conduct

2) An abductor assaulted and raped the victim and the evidence suggested
that the sexual assault had been planned with the owner's property in
mind

a. Actual causation of bushes - likely only cause of rape occurring

on the specific land - not that it happened in general

iv. Eggshell plaintiff is not break the chain of events

C. Joint and Several Liability; Multiple Defendants

a. Independent tortfeasors: parties only liable for their part of the damage caused, if the
damages can be traced among them.
b. Multiple defendants. Courts prefer several > joint, but sometimes you really can't sort
out who was responsible for what percentage, so they will use joint.
i. Several: how much each defendant is responsible for and they are only
responsible for their portion.

ii. Joint and Several (alternative liability): Not possible to find out which d did
what, so sue everyone P sues all Ds and then can pick from who they want to

32
 collect the amount from. Make sure the P gets paid. D can then dispute with
the others to get paid what should be their portion

c. Summers v. Tice

i. Plaintiff shot by hunters. Impossible to tell which shot hit the P. Ds acted
jointed, so joint & several liability applied.

d. Hymowitz v. Eli Lilly & Co.

i. Plaintiffs were injured when pregnant mothers ingested a drug, DES, which
caused a very rare cancer in the babies when they were adults. The injuries
were not identified often until the statute of limitations had run. Identifying
which of the many drug manufacturers made the specific drug each mother
ingested would be impossible.

1) Court went with national market share, several liability, no

exculpatory evidence

ii. Possible Methods to Use

1) Market share concept - defendant responsible for the damages equal to

the percent share of the national market that they had.

2) Several or joint & several liability used

3) Exculpatory evidence allowed. Court went with national market share,

several liability, no exculpatory evidence

D. Toxic Harms
a. Problems of identification
i. Disease does not occur instantaneously
b. Problems of boundaries:
i. Both the 2 - party structure of traditional tort litigation and the underlying
premise of a sudden injury that are confounded by environmental harm
c. Problems of source
i. Toxic and pollutant harms, environmental harm is very often collective harm -
cause widespread harm and also produced by a vast number of enterprises
1) "Proportional liability" in toxic tort
ii. Issues of causation have an additional layer than in drug cases.
iii. Uncertainty about exposure - was injury caused by it or something else? Often
multiple sources.

Defenses

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A. Contributory Negligence

a. Historically, contributory negligence meant "all or nothing", any degree of fault at all
& the plaintiff would lose.

i. Burden to prove contributory negligence is on the defendant

b. Limitations:

i. Statutes: may bar contributory negligence

ii. Recklessness: contributory neg. is not a defense for recklessness

iii. Last clear chance: plaintiff claims defendant had failed to utilize the "last
clear chance" to avoid injury to the negligent plaintiff

1. The plaintiff’s contributory negligence becomes irrelevant

iv. Danger invited rescue (emergency doctrine)

1. If defendant is being careless & puts someone at risk, people will be

motivated to help that person

B. Comparative Negligence

a. A negligent plaintiff's recovery depends on how serious plaintiff's negligence was

compared to the defendant's

i. Fact finder determines fault percentages & damages

ii. Damage caps: applied after plaintiff’s comparative share is deducted from the
verdict amount

1. If cap is $10,000 & verdict is $15,000 and the P is liable for $5,000
then P is awarded $10,000.

iii. Seatbelt non-usage: some states (CA & NY) allow failure to use safety
decides to fully reduce recoverable damages

iv. Scott v. Country of Los Angeles: intentional tort feasors should be given a
greater percentage of liability

b. Pure Comparative Negligence

i. If Plaintiff was 20% responsible & Defendant was 80% responsible, D has to
pay 80%  $800 for $1000 claim

34
 ii. No set off

c. Modified variants between jurisdictions: “not as great” and “not greater than”

i. Determines at what % someone can recover damages

1. Not as great as = (<50%)

2. Not greater than = (<51%), so % can = 50

d. No set off rule: each party must pay what they owe. Amounts do not “set off”
between parties

i. If A owes $1K and B owes $2, B can’t just pay $1K difference and call it
done

ii. This is to get insurance companies to pay what they should & ensures lawyers
can get paid

e. Jurisdiction Variations:

i. Uniform Comparative Fault Act

1. Any contributory fault chargeable to the claimant diminishes

proportionately the amount awarded as damages

a. “Fault includes acts or omissions that are in any measure

negligent or reckless – includes breach of warranty,
unreasonable assumption of risk

2. Court should find ercentage of the total fault of all of the parties each
claim that is allocated to each claimant, defendant, 3rd party defendant,
and person who has been released from liability

3. (2C) Enter judgment against each party on rules of joint and several
liability

a. Many states have not adopted this subsection

4. Uncollectible amounts from any party should reallocate among the

other parties, including a claimant at fault according to their respective
percentages at fault

5. Claim and counter claims are not set off against each other, except by
agreement of both parties

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 6. [Right of Contribution] Contribution is available to a person who
enters into a settlement with a claimant only (1) if the liability of the
person against whom contribution is sought has extinguished and (2)
to the extent that the amount paid in settlement was reasonable

a. When a tortfeasor settles with plaintiff, they are released from

any contribution claims by non-settling defendants

7. [Enforcement of Contribution] Action for contribution must be

commenced within one year after judgment becomes final

ii. Iowa Statutory Law

1. Iowa also has a no set off rule. This makes insurance companies pay.

2. Contributory fault shall not bar suit unless the claimant bears a greater
percentage of fault (over 50%) than the combined percentage of fault
attribute to the defendant & settling parties

a. Any damages allows shall be diminished in proportion to the

amount of fault attributable to the claimant

3. Joint and several liability shall not apply to defendants who are found
to bear less than 50% of the total fault assigned to all parties

a. A defendant guilty of 50% or more of fault shall only be jointly

and severally liable for economic damages and not for any
noneconomic damage awards

iii. Pro Tanto Rule (Texas & California follow)

1. Incentive to settle first

a. The last defendant to settle can be held liable for the remaining
amount (difference in amount for other defendants who got a
good deal)

2. If A settles for $100 when they should be liable for $400, the last
defendant to settle can be liable for that extra $300

3. Doctors have an exception - “Let them stand and fight”

a. If all doctor defendants agree in a suit, they don’t have to

follow

36
 b. Don't want to force doctors to settle. Protect their reputation,
they have to report any settlements to board
f. Fritts v. McKinne: patient drove drunk & got into accident, at hospital the doctor
performed med mal. Contributory negligence is only relevant in medical situations
where the contributory negligence contributed towards the injury of the medical
malpractice
g. Math! A = Plaintiff & B, C, D = Defendants – C is your client
i. Pure Contributory
1. A will not recover if they are any % at fault
2. Norm is several liability
3. If no joint and several, then A won't get paid for the "broke defendant"
ii. Pure Comparative Law
1. Percentage recovery for what A is not responsible for
2. No “set off” – likely to be counterclaim suit
iii. Uniform Comparative Fault (UCFA)

1. If party D cannot pay… %/amount remaining (A/A+B+C)

2. Always joint and several liability

iv. Iowa Statutory Law

1. No recovery if A is 51% or more liable

2. If party D cannot pay… amount only redistributed to defendants if

they are more than 50% responsible

3. Defendant found to bear 50% or more of fault shall only be jointly and
severally liable for economic damage

v. There has been an accident in which A has suffered damages of $100,000

and has brought suit against B, C, and D. A trial has established that the
relative shares of fault are A- 40%; B – 30%; C – 10%; D – 20%. Assume
all are solvent.

1. Contributory (traditional common law): no recovery for A in any of

the conditions

2. UCFA: A could recover $60,000 of their $100,000. C must pay

$10,000

3. Iowa: A could recover $60,000 of their $100,000. C must pay $10,000

vi. At trial it appears D is insolvent. Now what?

1. UCFA: 20% split amongst the other 3… A: 50%, B: 37.5%, C: 12.5%

37
 a. %/amount remaining (A/A+B+C)…. (40/80)

2. Iowa: Amount only redistributed to defendants if they are more than

50% responsible

a. A could recover $40,000. C still only has to pay $10,000

vii. What is C was also hurt and sustained $25,000 of damages?

1. UCFA: C could potentially recover $22,500 (90% damages)

a. C would still owe 10K for A suit

b. A would owe 10K to C suit…. These suits do not "set off"

2. Iowa: C has damages of $25,000 - C could potentially recover 90%

($22,500)

viii. What if shares of fault are A- 50%; B – 30%; C – 10%; D – 10%. What if
A – 51%?

1. UCFA: A could recover 50% of damages $50,000. If A is shifted to

51%? Collect 49% damages

2. Iowa: Claimant A now bears an equal percentage – A could still

recover. If it shifts so A: 51%, then A cannot recover

ix. Suppose we are in the 1st hypo and A tells B to pay $60,000. Does B have
to pay or can B just pay their $30,000?

1. UCFA: Always joint and several liability. A could get $60,000 from B
and then B would have to try to collect from C and D (2c of UCFA)

2. Iowa: "defendant found to bear 50% or more of fault shall only be

jointly and severally liable for economic damages". Defendant is only
responsible for their percent

x. What if defendant wants to settle? Liability percentage determined in court,

so you’re operating w/ uncertainty

1. UCFA: P should not settle

2. Iowa: P should settle, difference in settlement won’t be split amongst

others
3. Pro Tonto: P should settle. Each D wants to be first to settle. Last D
can be held liable for the remaining amount

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C. Avoidable Consequences
a. Addresses the measure of damages, but not the issue of liability

i. Plaintiff’s damages reduced to the extent he failed to exercise due care to

mitigate harm

b. Defendant is not liable for Plaintiff’s failure to obtain medical attention or to follow
medical advice

i. Ex: if D breaks P’s leg and P refuses medical care, D is liable for the leg break
but won’t owe damages for the leg setting wrong

c. Should you be responsible for injuries that occur from someone's religious beliefs?
i. Courts should not be in the business of deciding which religious beliefs to
recognize. Courts can rule on whether your beliefs are genuine/ if you are
lying

D. Assumption of Risk

a. Express:

i. When looking at express preemption, the wording is important.

1. "This federal statute preempts state safety standards"

2. Identical except it uses "safety requirements" instead of standards

a. Can be decisive on which is actually preempted.

3. Safety requirements preempts. Safety standards is not necessarily.

a. If you violate state standard of care in Tort suit, you must may
money…. This is more of a requirement.

b. You can violate state standards and nothing happen.

4. Assumption of risk exculpatory agreement standards

a. Tunkl factors

i. Agreement concerns a business typically thought

suitable for public regulation

ii. Party seeking exculpation is engaged in a service

thought to be of great importance to the public

39
 iii. Party holds himself out to the public

iv. The party invoking exculpation possesses a decisive

advantage of bargaining strength

v. No provision where the purchaser may pay additional

fees and obtain protection from negligence

vi. The person or property of purchaser is placed under

control of the seller, subject to the risk of carelessness

b. Virginia Supreme Court: no agreements are enforceable

c. Vermont Supreme Court's totality of the circumstances

5. Children

a. Courts are reluctant to allow adults to waive rights of children.

Parents can sometimes waive rights

b. An adult signing for a child that is not theirs will not be upheld
and the adult can actually be sued by the parent.

6. Sports

a. Sports do have an inherent level of risk

b. Football has a significant level of roughness, you could only

sue for injuries that go beyond the normal level of roughness.
ii. Tunkl factors: when is it not appropriate for a business to contract out of
liability?
1. Is the business in question usually regulated?
a. Airlines, healthcare facilities, transit systems, energy, pharma
b. Serious industries that serve the public. People have a necessity
to them and they are risky
c. Void contract is business is regulated- regulation shows there
are risks.
2. Is the service important or necessary?
d. Going to a hospital is important. Snowtubing is not
e. Void contract is service is important/necessary.
3. Open to the public
f. Does not need to be the entire public. Can be a very large
group.
g. Ex. Everyone over the age of six.
h. Void if open to public
4. Is it an essential service -> bargaining power

40
 i. Void if you have no bargaining power
5. Contract of adhesion?
j. Ex. Clickwrap agreements: you cannot use service without
agreeing
k. You will be denied service if you don't agree to them. You
don't have the ability to pay more to keep your rights.
l. Void. If people have the choice to pay more, then not void.
6. Plaintiff under control of defendant while using the service
m. Ex. Doctor is in charge of an unconscious patient
n. Void if P is under control of D
iii. Hanks v. Power Ridge: Family went snowtubing & was injured. They
wanted to sue. But signed an agreement that the family assumed all risk
- Whether an exculpatory agreement will be enforced given the activity
involved? Inherent risks are everywhere, but people still have a certain
duty to make things safe. – examine Tunkl factors!

b. Implied:

i. Plaintiff engages in dangerous activity with no express statements regarding

liability

1. You may assume the inherent risks – especially for sport and fun
activities

2. You might not assume the risks you are aware of under certain
circumstances – if you have no other reasonable options

ii. Murphy v. Steeplechase

1. Plaintiff could not sue for an injury caused from falling on a ride
where he watched people falling and the fun is basically in the
possibility of falling. The defendant did pad the ride to cushion falls
and there is not a significant history of injury on the ride.

2. When you choose to take part of risky activity, you assume the
inherent risks of that activity that could reasonably occur

3. One who takes part in a sport accepts the inherent dangers

iii. Davenport v. Cotton Hope Plantation: Plaintiff repeatedly told defendant

landlord that the stairway lights weren't working. Plaintiff continued to use the
stairs and fell and was injured

1. You can sue for injury caused by risky activity that you know of and
still you take part of

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 2. Defendant not barred from recovery due to his assumption of risk

E. Preemption:

a. Federal statutes reducing the scope of state tort liability

b. Is there express preemption?

i. Yes: Stop. No suit.

ii. No: Implied preemption analysis

1. Conflict,

2. Field,

3. Minimal vs. optimal regulation

a. Role of federal regulator. Is it a floor or a ceiling?

c. Implied: Federal statute does not say whether or not Congress intended to preempt
state tort lawsuits, so courts draw inferences about whether there was an intent

i. Conflict preemption

1. Wyeth v. Levine: drug MFR argued they could not comply w/ both
state and federal law through labelling, but Court said they could put
an additional risk and then file with FDA for approval, but they could
do it in the meantime. FDA does not preempt.

ii. Field preemption

iii. Minimal v. Optimal regulation

d. Riegel v. Medtronic: MEDICAL DEVICES

i. Medical device: something that helps treat, diagnose a preventable disease by

mechanical means or electrical means.

1. From band aids to heart implants

ii. Plaintiff, a patient and his wife, sued respondent medical device manufacturer
after a catheter ruptured in the plaintiff patient's coronary artery during
surgery.

1. The device was not used according to the device's approved labelling.

42
 e. Medical Device Amendment (MDA) give classifications (I, II, or III).

i. Class III needs premarket approval

1. Process - clinical trials
a. Problem with device trials: its hard to blind. Sometime do
"sham surgeries" & quickly gets unethical
ii. 510(k): Substantial equivalence: so similar to thing already on market that was
approved
1. Predicate device (the one approved). Chains of predicates.
a. Davinci robot original predicate is a surgical clamp
2. "Kind of a fiction"
iii. De Novo for class I and II: for new and novel, but "perfectly safe"
iv. Old devices were grandfathered in. Then new products could show they were
similar. The scheme was that eventually all new products would go under
review… this did not happen.
1. 1990 FDA was falling behind. Congress passed the classification two
tier scheme to be permanent.

f. ERISA preempts state tort suits. It has its own conflict resolution provision.

i. Preemption clause -> Saving clause -> Un-saves some of saved suits

Federal Tort Claims Act Preemption Doctrine

Question: Can the federal agency itself be sued?  
Question: Can an entity that is regulated
by a federal agency be sued? Does federal
regulation preempt state tort suits against
the regulated entity?
 
   
Impact of 28 USC § 2680(a) Express Preemption: Purely a question
  of what the federal statute says: Does it
Ministerial Acts: Where there is a very preempt state tort lawsuits against the
specific statutory instruction that gives the regulated entity?
federal official specific instructions what to  But: Court cases have
do: clarified how to read statutory wording.
- Suits are not allowed if the official was E.g., a federal statute that says it
exercising due care (making a good faith effort preempts state “standards and
to follow the instructions). requirements” preempts state tort suits,
- This would still allow a suit if the official but a federal statute that says it preempts
negligently failed to follow the specific state “standards” would preempt state
statutory instructions. regulations but not preempt state tort
  lawsuits.
Discretionary Acts: If the governing statute  
leaves the official with discretion to make Implied Preemption: The federal

43
 decisions (i.e., the statute is not fully specific statute does not say whether or not
and leaves some decisions to be made by the Congress intended to preempt state tort
official), then the general rule is that the lawsuits, so Courts draw inferences
official cannot be sued in tort. But courts have about whether there was intent to
interpreted this so that not all discretionary preempt.
actions by federal officials are immune from  Conflict preemption: State
tort suits. tort suits may be preempted if it would
 Tort suits may be allowed for non- be impossible to comply with both the
policy-related discretionary actions—i.e., federal statute and the requirements
those that do not involve making delicate imposed by state tort judgments.
trade-offs between costs/benefits, or trade-offs  Field preemption: There is
between conflicting interests of different not necessarily a direct conflict, but the
groups of stakeholders, or trade-offs that are federal scheme of regulation is so
made subject to a budgetary constraint. detailed and broad that it appears that
 But suits based on policy-oriented Congress intended for the federal
discretionary decision or action are not government to occupy the entire field,
allowed. Courts wish to protect major policy leaving no room for state courts to set
judgments from being second-guessed by state additional requirements via tort lawsuits.
courts.  Minimal vs. Optimal
regulation: In recent cases like Wyeth
and Geier v. American Honda:
“Minimal” federal regulation that sets a
floor or minimal safety requirement is
not seen as preemptive. “Optimal”
regulation that sets a floor and a ceiling
for safety is seen as preemptive.

Strict Liability (SL)

A. The imposition of liability on a party for an action regardless of what his intent or mental
state was when committing the action. You only need to prove that the tort occurred and that
the party was responsible
a. Duty, Injury, Causation
B. Public Policy
a. SL helps fix problems with Hand’s formula
b. SL makes people ask whether they should do the activity in the first place
C. Goals of strict liability (King Article)
a. Loss spreading
iv. Accident costs should be "collectively, not individually, borne"
b. Loss avoidance (or risk reduction)
v. Imposing liability in a way that reduces the number and severity of accidents
c. Loss allocation (or internalization)

44
 vi. Loss to be borne (or internalized) by the enterprise whose activities
engendered it and whose activities are sufficiently connected to the loss to
make it appropriate to reflect the loss in the cost of the enterprise's services
d. Administrative efficiency
vii. Reducing the "tertiary" costs of accidents - the systematic transaction costs
involved in imposing liability
e. Fairness
viii. Paradigm of reciprocity- the relative magnitude and quality of the risks
created by the activities of the defendant and those of the victim
D. Categories of Abnormally Dangerous Activities
a. Wild Animals
b. Explosives – dynamite
c. Disease/poison – anthrax
d. Ultrahazardous behavior = strict liability… b/c high level of danger that cannot
feasibly be prevented by the actors being careful or potential victims altering their
behavior
E. Rylands v. Fletcher cases
a. The person who for his own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does
not do so, is prima facie answerable for all damages which is the natural consequence
of its escape.
b. US did not follow this - Rylands was on his own land and had rights to do whatever
he wants/ enjoy his land.
F. Sullivan v. Dunham
a. Plaintiff's decedent was struck while on the public highway with a piece of wood that
was flying through the air after an explosion on the defendant's land. The defendant
employed two people to dynamite a tree on his land.
b. The safety of travelers upon the public highway is more important to the state than
the improvement of one piece of property, by a special method, is to its owner.
G. Defenses
a. Assumption of Risk
b. Comparative Fault
c. Preemption
d. Statute of Limitations

Product Liability
Negligent Liability Strict Liability
Manufacturing Defect All elements needed Is D eligible
Design Defect All elements needed Is D eligible
Failure to Warn All elements needed Is D eligible

A. 2nd Restatement of Torts

a. One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby
caused to the ultimate user, or to his property, if
45
 i. The seller is engaged in the business of selling such a product, and
ii. It is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold
b. The rule stated in Subsection (1) applies although
i. The seller has exercised all possible care in the preparation and sale of his
product, and
ii. The user or consumer has not bough the product from or entered into any
contractual relation with the seller
rd
B. 3 Restatement of Torts: Products Liability
a. Section 1: “One engaged in the business of selling or otherwise distributing products
who sells or distributes a defective product is subject to liability for harm to persons
or property caused by the defect”
b. Section 2: for purposes of determining whether a product was defective there are 3
types of defects. A product:
i. Contains a manufacturing defect when the product departs from its intended
design even though all possible care was exercised in the preparation and
marketing of the product;
ii. Is defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the alternative design
renders the product not reasonably safe;
iii. Is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced or
avoided by the provision of reasonable instructions or warnings by the seller
or other distributor, or a predecessor in the commercial chain of distribution,
and the omission of the instructions or warnings renders the product not
reasonably safe
c. Section 3: a provision complementary to its section 2 for establishing the existence of
a defect; it may be inferred that the harm sustained by the plaintiff was caused by a
product defect existing at the time of sale or distribution, without proof of a specific
defect, when the incident that harmed the plaintiff:
i. Was of a kind that ordinarily occurs as a result of product defect and
ii. Was not, in the particular case, solely the result of causes other than product
defect existing at the time of sale or distribution
C. Is the defendant eligible?
a. Defense: Are they a seller in the business?
i. Chain: parts supplier - manufacturer - wholesaler - retailer - customer
ii. Excuses used goods sellers – people who sell their own used cars
iii. It does not take much to be in the business.
iv. If you sell an items once per year, you are in the business
b. Was the product modified downstream of them?
D. Strict liability
a. If the defendant is “eligible”, then they are strictly liable
i. Ensures that victims of unavoidable accidents get paid
b. SL does not create an incentive, but it does get people paid

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 c. Exception: Most courts decline strict liability on sellers of used goods
i. Wilke exception (to the exception) used vehicles - there is a duty to conduct a
reasonable inspection of the vehicle.
E. Negligent liability
a. Must show the defendant did a negligent action that caused the problem
i. Defect by defect – who did the tort, is there a vicariously liable employer
ii. Incentive for suppliers to do things well
b. Must meet all elements of negligence
i. Duty, Breach, Actual Cause, Proximate Cause, Injury
F. Manufacturing Defects
a. Where the defect is outside of how the manufacturer intended the product to be
i. Ex: removed blade guard makes saw out of manufactured specifications
ii. Contains a manufacturing defect when the product departs from its intended
design even though all possible care was exercised in the preparation and
marketing of the product
b. Malfunction theory, however, does not reduce the P's evidentiary burden
c. McPherson v. Buick Motor Co.
i. Injured plaintiff tried to sue Buick for their defective wheel on their car. They
bought the car through a separate dealer who purchased from Buick.
ii. You can sue someone "up the chain" of sale where you are a foreseeable
injured party and the person you are suing had the duty of ensuring the
product was safe.
d. Escola v. Coca Cola Bottling Co.
i. A waitress was injured when a soda bottle broke in her hand as she moved it
from the case to the refrigerator.
ii. If tests are not commercially practicable to test used bottles before reuse, the
bottles should not be re-used.
1. Public policy demands responsibility to be fixed wherever it will most
effectively reduce hazards to life and health
e. Greenman v. Yuba Power Products
i. Loose screw injured Plaintiff. Not necessarily saying its res ipsa
ii. A screw could be loose for many reasons, not just by fault of manufacturer
G. Design Defects
a. Product is how it was intended to be, but it is unreasonably dangerous
i. Ex: blade guard was too easily removable
b. Ordinary Consumer Expectation
i. You don’t need experts to testify. Experts would defeat the purpose of this
idea.
c. Reasonable Alternative Design (RAD)
i. Ortho Factors
1. The usefulness and desirability of the product – its utility to the user
and to the public as a whole
2. The safety aspects of the product – the likelihood that it will cause
injury and the probable seriousness of the injury
3. The availability of a substitute product which would meet the same
need and not be as unsafe

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 4. The manufacturer’s ability to eliminate the unsafe character of the
product without impairing its usefulness or making it too expensive to
maintain its utility
5. The user’s ability to avoid danger by the exercise of care in the use of
the product
6. The user’s anticipated awareness of the dangers inherent in the product
and their avoidability because of general public knowledge of the
obvious condition of the product, or of the existence of suitable
warnings or instructions
7. The feasibility, on the part of the manufacturer, of spreading the loss
by setting the price of the product or carrying liability insurance
ii. Need experts to testify
d. Soule v. General Motors Corporation
i. P injured from car defects that caused car wreck; car made by GM
ii. Risk v. benefit theory
iii. Irreducibly Unsafe Products: products that are unsafe, but there are no
RADs
1. Ex: You can’t make a knife not sharp & still have it work
2. O’brian v. Muskin: above ground swimming pools are open and
obvious dangers & have no RADs but the judge found the risk
outweighed the benefit, so held manufacturer liable for person diving
in despite the pool having warnings not to
a. Other courts objected to this ruling & found that products with
no RADs & have proper warning, manufacturer should not
have liability
e. Comacho v. Hona Motor Co.
i. Motorcycle crash – motorcycle did not have leg protectors b/c plaintiff
declined to buy them. Court – motorcycles held to crashworthiness doctrine &
even if danger is open & obvious, manufacturer can still be held liable
1. Dissent: consumer opted out of paying for the extra safety so
manufacturer should not be held liable for open and obvious danger
ii. "Crashworthiness Doctrine": a manufacturer may be held liable for injuries
sustained in a motor vehicle accident where a manufacturing or design defect,
though not the cause of the accident, caused or enhanced the injuries.
H. Failure to Warn
a. Bad placement of warning
b. No warning that should be present
c. Over warning can have an adverse effect
d. Learned Intermediary Doctrine (LID) - DRUGS
i. MFR  warns physician  physician prescribes Rx to patient
MFR  warns patient
Under LID, patient only has med mal suit against physician if
manufacturer warned the physician
ii. Only applies to drugs, does not apply to devices
1. FDA provides standards through drug’s labeling & other conditions
for manufacture, distribution, sale, and use of drug

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 iii. If manufacturer (MFR) warns the physician of the drug’s risks through
labelling warnings and instructions, then they do not have a duty to warn the
customer directly
1. Mere presence of the warning on labeling tends to shift liability to
physicians.
2. LID tends to shield MFRs from liability for disclosed risks
iv. If a customer is injured by the drug, they can only sue the physician for a med
mal suit.
1. Physician have no financial consequence if disregard for safety
warnings is so widespread that it is the professional standard
v. All states have exceptions to LID
1. Vaccines
2. Contraceptives: all have a failure rate, so don't rely on physicians to
warn.
vi. State v. Karl
1. The court decided it would not adopt the learned intermediary
doctrine, so that liability remains with drug manufacturers to give
warnings to consumers.
2. Dissent: The learned intermediary doctrine may be useful for
prescription drugs that are not heavily market, where a physician's
expertise is relied upon to make the selection of which particular drug
to prescribe.
3. If physician prescribes drug off-label, they have responsibility.
4. If physician prescribes on label, two routes (1) label fails to warn, then
suit against manufacturer allowed or (2) label warned, then suit against
manufacturer not allowed.
vii. Should manufacturers be allowed to advertise new drugs?
1. Idea that they may expand the market. Not necessarily be selling
particular drug instead telling people about drugs
2. Drug marketing problem. Sales reps in doctors offices.
3. FDA summary of potential risks of drugs on advertising
e. Hood v. Ryobi America Corp.
i. Hood removed the guards and the spinning blade detached from the saw and
injured him. Ryobi had multiple warnings on the product to not remove the
guards. Hood complained the warnings were "insufficiently specific"
ii. A clear and specific warning will normally be sufficient
f. Children
i. Moran - kids tried to make a candle using cologne. It caught fire. Court said
adding a warning on the cologne would not cost much compared to the
potential injury
1. Its easy to say in hindsight that adding a warning would be cheaper.
You would have to warn for everything.
ii. Hernandez v. Tokai Corp - adult products, like cigarette light, should have
warning for adults.
1. Other cases have said adult products should be designed so most
children would be unable to use

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 g. Negligent failure to warn
i. Vasallo v. Baxter Healthcare Corp.: a defendant will not be held liable
under an implied warranty of merchantability for failure to warn or provide
instructions about risks that were not reasonably foreseeable at the time of sale
or could not have been discovered by way of reasonable testing prior to
marketing the product
I. Defenses to Products Liability
a. Affirmative defenses:
i. Statutes of Repose: similar to statute of limitations, but the time begins to run
when the product is first sold
1. Ex: In federal statute, airplanes have a statute of repose of 18 years
ii. Waivers & disclaimers: Products Liability Restatement: "disclaimers and
limitations of remedies by product sellers… do not bar or reduce otherwise
valid products liability claims"
b. Bulk supplier defense: duty is owed only to the employer and not to the employees
i. Where one company supplies a bulk number of products to an enterprise
where it will be used by many workers
c. Hospitals that perform surgeries are not a part of the product chain for things like the
parts for a hip replacement. They are mostly performing a service and are providing
the product for your convenience
d. GM v. Sanchez
i. The plaintiff decedent put the truck in neutral and somehow the car shifted to
reverse, he was crushed and died from bleeding out. The truck owner's manual
describes safety measures designed to ensure that the truck would not move
when parked.
ii. A plaintiff's conduct other than the mere failure to discover or guard against a
product defect is subject to comparative responsibility.
e. Subsequent remedial measures: you cannot bring evidence that the original product
was defective by the fact that they updated the product to improve their product and
made it safer
f. Disclaimers & contractual waivers: "disclaimers and limitations of remedies by
product sellers… do not bar or reduce otherwise valid products liability claims"
i. Westlye: court held the express assumption of risk barred the negligence
action, but not the strict liability
ii. Mohney: court held a disclaimer barred a strict liability claim

J. Work-Related Injuries
a. Workers' tort suits against their employers for accidental injuries are barred b/c of the
"exclusive remedy" provision of workers' compensation statutes
b. Workers can sue product manufacturers simultaneously with getting workers comp.
c. Jones v. Ryobi
i. Plaintiff's employer modified a printing press and made it unsafe. The
manufacturer provided tools for general maintenance, which were used by the
employer to remove the guard on the printing press
ii. When a third party's modification makes the safe product unsafe, the seller is
relieved of liability even if the modification is foreseeable

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 1. There is a public benefit of allowing people to modify products to their
own needs
d. Liriano v. Hobart
i. Plaintiff's hand was caught in a meat grinder and he lost his hand & forearm.
The guard was removed from the grinder and there was no warning on the
machine against using it without the guard
ii. You can have failure to warn even if you can't bring a suit for design defect
for modifications
K. Beyond Products
a. Royer v. Catholic Medical
i. Plaintiff had knew surgery & got an implant. The implant was defective & P
tried to sue the hospital
ii. Hospitals do not sell the medical devices they use

Intentional Torts
A. Intent
B. Assault
a. Elements:
i. Intent: D intends to cause harmful or offensive contact (or to create
apprehension of harmful or offensive contact).
ii. Actually putting Plaintiff into apprehension
1. You cannot assault an unconscious person
b. Transfer of intent: If D intends to cause contact to one person, but causes it to
another, the intent transfers.
c. Conditional assault: Plaintiff is not required to comply with a condition set by D.
Assault is proven with the threat.
d. Reality of Threat: D must have apparent, present ability to cause harmful contact. If it
appears D has the ability to cause the harmful contact, even though factually D does
not have the ability, assault is proven
i. Cultural dependent - culture where the tort occurred
e. As a general rule, words alone are not enough to constitute an assault.
i. Exception: when the situation is such that words are all the P has to go by in
judging the validity of the threat.
ii. Words used can negate an assault.
f. Standards: objective (would most people been in fear?) and subjective (if this one
person fears it, there is assault regardless if that’s how most people would think)
g. Cases:
i. Picard v. Barry Pontiac-Buick, Inc. (assault & battery)
1. D pointed angrily at P while P was taking pictures of D. D then
touched P's camera which P was holding.
2. P argued for assault and battery. Appeals court upheld these charges
because P although D did not make contact with P, assault does not
require contact. Battery was upheld too because D touched the camera
P was holding, which constitutes as "unpermitted and intentional
contacts with anything so connected with the body"

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C. Battery
a. Elements:
i. Intent: D intends to cause harmful or offensive contact (or to create
apprehension of harmful or offensive contact)
1. Standard is really: "intent to make contact, which turned out to be
harmful contact"
ii. Harmful or offensive touching
1. Direct touching of the victim's body
2. Touching of something connected to the victim (hat, camera, bicycle)
3. A bodily contact is offensive if it offends a reasonable sense of
personal dignity
4. Touching of a separate object that sets a chain of events in motion
(poisoning someone's food, pulling someone's chair out)
5. Indirect touching: ordering a hit
iii. No consent
1. P must prove they did not expressly or impliedly consented
2. Implied: what would a reasonable D have thought from the P's
actions?
3. Consent can be inferred from social custom
b. You can batter an unconscious person
c. Battery theory of Informed Consent Tort: see Med Mal page
d. Problem of express consent that is procured by fraud or deception
i. If the deception involved a misrepresentation about the essence of the
touching, then it will negate the P's consent
1. Type, extent, or bodily consequences
ii. If the deception involved a misrepresentation about a collateral matter, it will
not negate the consent
1. The touching is exactly how they represented it, but the collateral
matter was misrepresented
2. Someone consents to your harmful touch and you say you'll give them
money, but then you don't give them the money
e. Problem of express consent procured under duress: must be immediate threat
f. Wishnatsky v. Huey
i. A bodily contact is offensive if it offends a reasonable sense of personal
dignity
1. Court ruled D acted rude and abruptly, but did not rise to the level of
battery
2. We live in a crowded world and a certain amount of personal contact
is inevitable and must be accepted
ii. P was "unduly sensitive as to his personal dignity"
g. Garratt v. Dailey
i. Little boy (5years old) pulled chair out from lady. She alleged battery & is
suing for quite a bit of money - battery chain of events set in motion by the
defendant
ii. Little boy testified that he pulled the chair out, sat in it, and when he saw she
was moving to sit down, he tried to return the chair, did not get there in time
& she fell

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 iii. Court remanded case to determine if he knew with substantial certainty that
the lady would attempt to sit down where the chair had been
h. Picard v. Barry Pontiac-Buick, Inc. (assault & battery)
i. D pointed angrily at P while P was taking pictures of D. D then touched P's
camera which P was holding.
i. O’brien case: doctor was giving vaccines & plaintiff held arm out but did not
verbally consent. P gave implied consent – no battery.
D. False Imprisonment
a. Elements:
i. Intent: D has intent to retrain or confine P
ii. Actual Confinement: P constrained in a limited physical area from which
there is no reasonable or apparent means of escape
iii. No consent: P did not consent to confinement
iv. Plaintiff actually aware of the confinement or Plaintiff unaware of the
confinement and was injured as a result of the confinement
1. Any injury validates you being unaware
2. Jurisdictions vary on the "awareness" elements.
3. R. 2nd requires awareness of the confinement, absent injury to the P
b. Special problems of shoplifting:
i. Stores hold accused shoplifters while they call the police
1. Shoplifting is a misdemeanor: citizen’s arrest for this is v questionable
2. Insurers won't cover shoplifting. Shoplifting is typically petty theft-
misdemeanor.
3. Very shake-y citizens arrest for misdemeanor. If you're wrong and you
hold someone over $50, they can sue you
ii. Many jurisdictions: If detained for reasonable time, in a reasonable manner,
and detainer has reasonable amount of info to hold then its ok to hold while
calling the cops
c. Consent obtained through fraud or force is not consent
d. Words alone are almost never enough to be false imprisonment
e. Lopez v. Winchell's Donut House:
i. P was accused of stealing from her employers. Employers (D) asked her to
join them in the back of the store to discuss
ii. P said due to their questioning, she felt compelled to stay and then became ill
iii. Court said it is not enough for the P to be felt compelled to remain in the
baking room to protect her reputation
1. No duress or actual threats
E. Infliction of Emotional Distress
a. Elements:
i. Intent:
1. Subjective intent, or
2. the D acted with substantial certainty that his actions would cause
distress, or
3. the D acted with a reckless disregard of the probably consequences or
his behavior
ii. Conduct is extreme

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 1. Must be way outside socially accepted behavior or exception when
there are extra circumstances when behavior would be socially
accepted but isn’t actually
iii. Conduct is the cause of the P’s emotional distress
iv. Plaintiff experiences severe emotional distress
b. Intent does not transfer
i. Bystander plaintiff may recover if
1. Plaintiff is a member of the 3rd party’s immediate family and was
present at the time of the conduct- regardless of bodily harm caused by
emotional shock
2. If the plaintiff is unrelated to the 3rd party, but the P is present at the
time of D’s conduct, and plaintiff suffers bodily harm as a result of
emotional shock
c. Words alone can prove this tort, but they have to be really outrageous
i. Ex: if you invite a person to a PTA meeting, but you know their child just died
and you know this would greatly distress them
d. Special relationships may be relevant
i. Someone in a position of special trust, common carrier, landlord, innkeeper,
public utility
ii. They can be liable for insults of a highly offensive nature
1. Does not extend to all business owners (like shops) – would need to
prove severe emotional distress for shop owner insulting you
e. Womack v. Eldridge
i. Court decided whether P could recover for emotional distress caused by
extreme or outrageous conduct intentional or reckless actions by D
ii. Lawyer sends person to Womack's house - Womack simply works at the
location where Seifert was arrested. Seifert is being represented by Eldridge
for child molestation.
iii. D took P's picture under false pretenses and it was used it a case of child
molestation. The children said P was not who molested them. The opposing
side's attorney asked for the picture that was shown to the children
F. Defenses to Intentional Torts
a. Insanity is not a defense to an intentional tort even though it is a defense for the
crime.
b. Privilege: no tort is considered to have occurred, there is justification for defendant’s
otherwise tortious behavior
i. Self defense
ii. Acting on defense of a 3rd party
iii. Acting to protect property
iv. Teachers and parents have a privilege for disciplining children. This is subject
to a reasonableness test. No tort is the force used is reasonable.
c. Immunity: a tort exists, but no liability is assigned
i. Historically there were more, but have been severely cut down
ii. Some immunity of the government
1. Most immunities waived from Federal Torts Claim Act (FTCA)
iii. Modern trend: charities can be held accountable for their torts

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 iv. Parent - child: children traditionally could not sue their parents
v. Spousal: this was to prevent insurance fraud. Also, women were not
considered legal citizens - women had to get their husband to sue for them.
d. Consent
i. "To one who is willing, no wrong is done"
1. Scope of consent: outside scope or consent obtained through fraud is
invalid
ii. Restatement: (1) no man shall profit from his own wrongdoing and (2) one
who has willingly expressed his willingness to suffer a particular invasion has
no right to complaint if another acts upon his consent so given.
iii. Implied consent: "If words or conduct are reasonably understood by another to
be intended as consent, they constitute apparent consent and are as effective as
consent in fact"
iv. Hart v. Geysel
1. Cartwright (P's decedent) died as a result of a blow received in a prize
fight. Statute made prize fighting illegal.
2. Mutual combat in anger
a. Majority rule: both civilly liable to each other
b. Minority rule: if you consent, you cannot sue each other
e. Self Defense
i. Self-defense only entitles one to use reasonable force when she reasonably
believes that another is about to commit an actionable battery on her
ii. Escape exception: you have no right to use deadly force as self-defense if you
can escape
1. Exception to exception: you don't have to escape from your own
house. You can use deadly force in your home.
iii. Differ in jurisdictions on issue if you are mistaken – Is it ok to batter someone
if you are in fear for your life?
1. Impact of being wrong. If you think someone was coming up to attack
you, but they actually aren't…
2. Objective standard- was your mistake a reasonable one? (This is the
ruling in almost all states)
3. Some states hold that if the defender is mistaken as to right of self-
defense of person he's defending, the defender is liable for battery
iv. Acting to protect property
1. No deadly force
2. Fresh pursuit exception
v. Threat of Excessive Force: You can threaten to shoot someone as a defense -
assault is ok, but actually shooting them may not be ok.
vi. Courvoisier v. Raymond
1. Court stated the D must satisfy the jury, not only that he acted honestly
in using force, but that his fears were reasonable under the
circumstances, and also as to the reasonableness of the means made us
of
f. Protection of Property

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 i. Reasonableness test to determine whether the use of deadly force is justified
to protect property interests
1. Court examine situation to determine if your level of force was
appropriate
ii. Recapture of chattels: if you see your property that was stolen from you, you
can only recapture if timely done, otherwise, you must seek help from the
police
iii. Katko v. Briney
1. Owner tried to protect personal property in an unoccupied boarded-up
farm house against trespassers and thieves by a spring gun capable of
inflicting death or serious injury
2. Law puts higher value upon human safety than upon mere rights in
property
3. Cannot use lethal force to defend property. Can only use lethal force to
defend yourself - and sometimes to protect a 3rd party.
g. Private Necessity
i. A party uses, or in extreme cases destroy, the property of another in order to
preserve his or her person or property of greater value
ii. Vincent v. Lake Erie Transportation Co.
1. Steamship was tied to dock to avoid damage to the ship from extreme
weather. The ship repeatedly hit the dock during the storm, causing
damage to the dock
2. The court held that the defendant (ship people) prudently and
advisedly availed itself of the plaintiff's property for the purpose of
preserving its own more valuable property
3. Plaintiff entitled to recover compensation for the injury done

Defamation & Privacy- Related Torts

A. Defamation
a. Elements:
i. Defendant published a communication
1. D either intentionally or negligently communicated the defamation to
at least one other person other than the P
2. Communication to one person is sufficient
3. Publication must be voluntary. Someone stealing your information is
not publication.
ii. Nature of the communication was communication of a fact
1. If reasonable people would understand the statement to be
exaggeration or satire, it is not actionable
2. No actionable if statement is clearly opinion
a. However, saying "in my opinion" does not make it opinion
iii. Communication concerned the Plaintiff
1. Who can sue?
a. Some states allow defamation suits in their survival statutes- so
suits on behalf on decedents

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 b. Legal persons (corporations, partnerships, etc.) can sue
2. "of and concerning"
a. The person to whom the defamation is published has to be
reasonably able to connect it with the plaintiff
iv. Communication was false
1. Plaintiff must establish the statement is not true
2. Untruth must be substantial, not merely a minor wrong detail
v. Communication was defamatory
1. Restatement: statement…
a. Tends to harm the plaintiff's reputation, so as to lower plaintiff
in the estimation of the community (large group of people), OR
b. Tends to deter third parties from associating with the plaintiff.
This involves a community standard, i.e. tends to lower the
plaintiff in the minds of considerable and respectable segment
of the community
2. Libel per quod: written statement is not defamatory by itself, but
becomes defamatory in light of other facts known to the reader
vi. The person receiving the communication understood it to be about the
Plaintiff and to be defamatory
vii. Defendant was guilty of fault
1. Plaintiff’s status affects level of fault
2. No fault: If defendant genuinely thought statement was true, it’s not
defamation
3. Negligence standard: D negligently thought it was true. Reasonable
investigation would have immediately shown statement was false.
a. Private figures: ordinary private citizens who are not in news
b. most states impose a negligence standard in situations where a
malice standard is not constitutionally required
4. Malice standard: some states require plaintiff to show malice to
recover. Malice means the statement was false and was made with
a. Knowledge of its falsity; or
b. Reckless disregard of whether it was true or false
5. Which plaintiffs have to show malice? People in the news.
a. Public officials (all elected officials, appointed gov’t officials,
public employees who have significant responsibilities)
b. Public figures (celebrities, people who are in the news)
i. All- purpose public figures
ii. Limited- purpose public figures: must show malice only
for statements related to their limited purpose
1. Ex: environmentalist public figure- malice for
only environmental related defamation
viii. Communication proximately caused harm to the Plaintiff
b. Statement
i. Libel: defamatory statement is made in writing
1. “Written words are durable” & always damaging
2. Recorded spoken statements are considered libel now

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 ii. Slander: defamatory statement is spoken
c. Special damages- a plaintiff must show some sort of loss of economic benefits, in
addition to pure reputational/ dignity harm
i. Libel per se: written defamation is considered libel in itself if its defamatory
nature is apparent on its face
ii. Slander per se: common law identified 4 types
1. Falsely saying the p committed a criminal act
2. Falsely charging the p with conduct detrimentally affecting his
business (business misconduct)
3. Falsely saying the p has engaged in serious sexual misconduct
4. Falsely saying the p has a "loathsome disease"
d. Per Quod:
i. Slander per quod: any other slander - Plaintiff generally needs to prove
special damages
ii. Libel per quod: written statement is not defamatory by itself, but becomes
defamatory in light of other facts known to the reader
e. Romaine v. Kallinger
i. Fact v. Opinion:
1. Opinion: statement that cannot be objectively verified
2. Fact: could be objectively verified
ii. True fact v. False fact:
1. True fact: objectively verified as correct
2. False fact: objectively verified as incorrect
f. Defenses:
i. Absolute privilege: no matter how false or defamatory the statement, D
cannot be sued
1. Spouses
2. Statements in judicial proceedings by judges, witnesses, attorneys
3. Members of congress in the course of legislative activities
4. Federal officials
5. High state officials – like the governor
ii. Conditional privilege: Plaintiff can only sue Defendant when malice is
shown
1. Lower state public officials
2. People writing letters of recommendation for job applications
3. Persons reporting crimes to the police
4. Credit bureau reports
iii. Consent: plaintiff consented to let the defamatory statement be made
B. Invasion of Privacy
a. Intrusion on a person’s seclusion
i. Invasion of person’s life to obtain confidential/private information. Invasion
must be unreasonably intrusive
1. Photographing someone in their home w/o their consent
a. Photographing someone in public is not intrusion on seclusion
ii. No publication requirement

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 iii. Restatement 2nd: one who intentionally intrudes, physically, or otherwise,
upon the solitude of another, or his private affairs and concerns, is subject to
liability to the other for invasion of his privacy, if the intrusion would be
highly offensive to a reasonable person.
iv. Nader v. GM
1. Nader’s allegations that GM wiretapped his phone and eavesdropped
on his private telephone conversations, as well as kept him under
surveillance in a public place for an unreasonable amount of time, do
amount to truly “intrusive” behavior by GM
2. Privacy is invaded only if the information sought is of a confidential
nature and the defendant's conduct was unreasonably intrusive
v. Schulman v. Group W Productions, Inc.
1. The cameraman filmed Shulman’s extrication from the vehicle, the
medical care provided, and her transportation to a hospital in the
helicopter. Neither Shulman nor her son consented to the video or
audio taping of the rescue efforts or of the broadcast.
b. Unreasonable publicity given to a person’s private life
i. Publication requirement: must publicize info that would be highly offensive
to a reasonable person and is not a concern of the public
ii. False statement not required
iii. Restatement 2nd: one who gives publicity to a matter concerning the private
life of another is subject to liability for invasion of his privacy, if the matter
publicized is of a kind which (a) would be highly offensive to a reasonable
person, and (b) is not a matter of legitimate concern to the public
iv. Haynes v. Knopf
1. Plaintiff alleged details about his life 30 years ago written in a book
was an invasion of his privacy
a. Use of real names can strength the impact & credibility of
factual telling
2. The facts about his life were true facts relevant to the historical telling
c. Placing a person in a false light
i. Can include matters that are not bad enough to constitute outright
defamation
1. Information could be true or false
2. True but not defamatory, if publicized in a certain context could put
you in a false light
ii. Conditional issues: constitutional/ freedom of speech issues
iii. Restatement 2nd: one who gives publicity to a matter that places a person
before the public in a false light is subject to liability to the other for
invasion of his privacy, if (a) the false light in which the person was places
would be highly offensive to a reasonable person, and (b) the actor had
knowledge of or acted in reckless disregard for the falsity of the published
matter and the false light in which the other would be placed
iv. Cantrell v. Forest City Publishing Co.
1. Article was published by defendants about the plaintiff's lives after the
death of their family member that stressed the family’s poverty

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 2. It made various statements and even though Mrs. Cantrell (P) was not
home when the news people came by, the article described her as not
willing to talk and that she wear the "same mask of non-expression"
d. Appropriation of a person’s name or likeness
i. Restatement 2nd: one who appropriates to his own use or benefit the name or
likeness of another is subject to liability to the other for invasion of his
privacy

Harm to Economic Interest

C. Deceit
a. Elements:
i. Defendant made a misrepresentation of an existing fact
1. Existing at the time the deceitful statement was made – if you thought
it was true & it turned out to be false, not deceit
2. Misrepresenting an opinion or an intention can amount to deceit
ii. The fact was material
iii. Intent requirement: D intended to induce reliance form P (or from an entire
class of people, of which P is a member)
1. If P overhear a statement D made which was not intended for P to
hear, traditionally no action for deceit
a. Limit range of people to whom the D may be liable
b. Some modern trend to expand
iv. Scienter requirement: D knew the statement was false or had reckless
disregard for its truth or falsity
1. Mere want of care is not enough to sustain an action
2. State of mind must be inferred – often whether a reasonable man in
D’s situation would believe it when he said it
a. some grey area where D has an honest but completely
unreasonable belief
v. Detrimental reliance by the plaintiff- plaintiff relied on the false statement
and was harmed thereby
1. Reliance must be reasonable
2. All plaintiffs must have justifiable reliance. Even noncommercial
buyers are expected to know when a seller is “puffing” or engaging in
“seller’s talk” (talking up the virtues of the product)
3. Reliance produced harm – P must prove: out of pocket damages vs.
benefit of the bargain damages – based on D’s culpability to which
applies
a. Out of pocket: P recovers amount lost by doing transaction – P
gets his money back
b. Benefit of the bargain: P recovers benefits he would have
gained from the transaction, had the transaction been the way
the D represented it
b. Deceit by Silence
i. Partial disclosure

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 1. Even if seller has no duty to make a disclosure, making a partial
disclosure can create a duty to make a full disclosure
ii. Special relationship/fiduciary duty
1. D may have an affirmative duty to disclose all material facts & failure
to do so may amount to deceit
2. Ordinarily, no affirmative duty to speak
iii. Concealed defects
1. Even when no special relationship exists, D may commit a fraud by
concealing defects in a piece of property that is being sold
iv. Misrepresenting the law
1. Traditionally you could not sue. Law is a public record which you can
look up for yourself
2. Modern trend:
a. Giving a wrong opinion is not actionable “I interpret this to
mean X”
b. State of fact may be actionable “the law says you can do Y”
3. Even in jurisdictions that don’t treat misrepresentation of law as fraud,
it may be found if there is a difference in knowledge of the law and the
speaker is taking advantage of other person (a lawyer taking advantage
of a plumber) or a fiduciary relationship/ other relationship of trust
exists
v. Restatement (Second) of Torts, § 551(2)(e): a party has a duty to disclose
facts that are basic to the transaction if the other party is about to enter into
the transaction under a mistake as to those facts, and would reasonably
expect them to be disclosed
c. Ollerman v. O’Roarke
i. Deceit by silence case
ii. P purchased lot from D. Lot had a well on it that D was aware of, but did not
disclose to P.
1. D argued the well was common knowledge, so did not feel the need to
disclose, but P was not aware
D. Negligent Misrepresentation
a. Elements
i. Defendant, in performance of his/her trade or profession
ii. Negligently provided erroneous information
iii. Which is used by the plaintiff to plaintiff’s detriment
b. § 552 of the Restatement (second) of Torts, liability is limited by a person/group for
whose benefit and guidance he intends to supply the information or knows the
recipient intends to supple it AND through reliance upon it in a transaction that he
intends the information to influence a similar transaction.
c. Only applies to commercial torts – business context
d. KPMG
i. Plaintiff used defendant's audit report to decide to invest in Gulf, Gulf filed
for bankruptcy 2 years later and Plaintiff lost (~16 million) money – court
used report that D did not intend for P to use or rely on
1. Court does not want to reward laziness

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 ii. Privety, near privety, 552, or foreseeability
E. Interference with Contract Relations
a. Elements:
i. P had an existing contract with a third party
ii. D knew of the contract
iii. D intentionally interfered with that contract
b. Imperial Ice v. Rossier
i. Defendants induced Coker to breach the contract & P claimed that they
induced the breach in order to sell ice to Coker at a profit
ii. An inducement is justified where it has greater social value than the
protection of the contract’s stability
1. Court said defendants induced breach for their own economic benefit
since they were in competition with P & the breach of the K benefited
the Ds
c. Fair rigorous competition vs. Tortious behavior
i. Did they know there was a K? Did they know they were procuring a breach?
ii. Discourage unlawful behavior/ lying to get someone to breach
iii. No tort for procuring a strike
d. Lumley v. Gye: opera singer hired by one theater and then left to work for another
theater. You can't force someone to work for you, you can get damages they cause
though.
e. Intentional interference with promisor's contract - tort does not require breach of
contract, just prove that D intentionally made it more difficult for promisor's
performance of contract
f. Consultants hired by a business to advise it cannot be liable when they suggest the
business breach its contract if it was done honestly and in good faith
F. Interference with Advantageous Relations
a. Elements:
i. P had an existing advantageous (non-contractual) relationship with a third
party
ii. D knew this
iii. D intentionally interfered with that advantageous relationship

Damages
A. Injury must occur for P to get damages
o No injury… D may lose case, but damages set to zero
 Dignitary torts can be this or damages set v low (think T Swift)
o No injury … D may ‘win’ the case or get it dismissed
B. Monetary awards are the ordinary remedy
C. Single judgment rule: P has one shot at getting their damages
o Plaintiff may have ongoing need for medical treatment, but they have to estimate their
lifetime expenses & claim it all in the original lawsuit.
o When you file suit, you must give full prospective damages for entire lifetime.
Damages are very speculative. Get experts to provide statistics on
D. Collateral source rule:

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 o Traditional - you can sue for entire amount, even if your insurance already paid out.
 Encourage people to be prudent & get good insurance
 Also prevented defendants to be unjustly enriched by P’s prudence
o Modern trend - if insurance pays out and you sue the other person, you must pay
insurers cost back first before you get your cut of money(subrogation)
 Less popular trend: some states are getting rid of collateral source rule.
E. Types of Damages:
o Compensatory damages
 Economic Loss (out-of-pocket losses)
o Lost wages: past, present, future
o Future lost wages handled differently by jurisdiction
 Some allow lost earning capacity
 Some allow only actual or prospective earnings
o Medical bills: past, present, future
o Non-medical expenses: bills proximately resulting from injury
 Ex: building ramps & lifts in house for being paralyzed
 Non-Economic Loss (intangible damages)
o Pain and Suffering
 All injured P’s will have some pain& suffering
o Hedonistic damages: award for loss of enjoyment of life
 Not all jurisdictions allow
o Wrongful death
o Loss of consortium
 Typically, jurisdictions only recognize spousal consortium
 Some jurisdictions allow parental consortium for loss of child
 Some jurisdictions allow child to recover for death or disability
of parent
o Punitive Damages (exemplary damages – these are rare)
 Available when tortfeasor committed egregious misconduct w/ bad intent/
bad state of mind
o Ill- will, intent to injure, evil motives, malice… often must be more
than gross negligence
 Some states have statutes to put a cap on punitive damages: ratio to
compensatory
 Some states require reallocation of a portion of punitive damages above a
certain amount to a state agency rather than to the plaintiff
 “Fault-plus” evidence needs to be shown to recover punitive
o Can recover compensatory damages for products liability under SL,
but need extra evidence for punitive
 Calculated by:
1. The degree of reprehensibility of defendant’s act;
2. The disparity between the actual harm resulting from the defendant’s
act and the amount of punitive damages awarded (do damages bear a
“reasonable relationship” to the compensatory damages?)

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 3. The difference between awarding punitive damages remedy & the
other civil or criminal penalties used to punish defendants in
comparable cases

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Random Things
Medical Malpractice- Informed Consent (ALWAYS mention BOTH & ANALYZE)
 Battery (Intentional Tort)
o Medical care consists of unpleasant touching - like getting a shot vaccine- so you
must get consent to do this touching
o Fraud in getting consent
o Med Mal insurance does not cover intentional torts
o This is a crime in Texas.
 Negligence ("Lousy Communication" Tort)
o By not telling someone their options, you are taking away their ability to consent -
negligent failure to do a good job of informing someone

res ipsa loquitur = the thing speaks for itself - it has 3 conditions
1. The accident must be of a kind which ordinarily does not occur in the absence of
someone's negligence
2. It must be caused by an agency or instrumentality within the exclusive control of the
defendant
3. It must not have been due to any voluntary action or contribution on the part of the
plaintiff
Prima facie case - when the plaintiff has to provide some evidence of all the elements - give a
story for the elements
 Account for why defendant had a duty, that there was a standard of care, that the
defendant breached the standard
 Must show actual and proximate causation
 Must show that the plaintiff was actually injured

Qui Tam suit - not tort suit, but it is an example of enforcing a statute (mobilize the public)
 Hospital defrauding medicare
 Government can join your suit and they will take over paying the expenses
 As a plaintiff, since you identified fraud, you get part a reward for bringing the suit

Palka v. Service master case (note this case!) nurse doesn't sue the hospital because you cannot
bring a tort suit against your employer while you are at work; she could get workers comp, but
that does not give pain and suffering. Nurse goes after contractor so she can get more money…
and keep her job. This is a better indicator of how the court treats duty.

Tort of Negligent Entrustment - Torts Section 390!!!

If you get to a public park/ space and there is no one there to take your money and the gate is
open, you are an invitee. If the gate is closed, you are trespassing.
Note: child trespassers are treated differently when there is something "attractive" to them.

If you have a physical injury or property damage, you can recover for emotional harm due to the
damage anywhere/ in any state (try to make you whole).

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Things to know:
 Bystander- Dillon factors
 Impact Rule
 Nonimpact rule
 Physical bystander
When looking at express preemption, the wording is important.
 "This federal statute preempts state safety standards"
 Identical except it uses "safety requirements" instead of standards
o Can be decisive on which is actually preempted.
 Safety requirements preempts. Safety standards is not necessarily.
Res ipsa loquitur is a doctrine of proof.

Child negligence:
 Restatement (Second) of Torts § 283A provides that a child defendant will not be liable
for negligence if the child’s conduct conformed to that of a reasonable child of the same
age, intelligence, and experience under similar circumstances.
Product Liability:
 You can have failure to warn even if you can't bring a suit for design defect for
modifications
 Tests for Whether Product is Unreasonably Dangerous – Design Defect
o (1) the consumer expectations test: did the product perform as expected? Did the
gun fire from the opposite end?
o (2) the risk-utility test: is there are RAD available?
Standard of Care:
 Emergency doctrine does not alter the standard of care, but it is part of the overall
circumstances to be considered.
 Custom, usage, common practice establish what the trade deems reasonable & can
influence what the court thinks is the standard of care.
Causation:
 Restatement (Second) of Torts § 431 states that an actor's negligent conduct is a legal
cause of harm to another if his or her conduct is a substantial factor in bringing about the
harm.
Intentional Torts:
 Apprehension is not the same as fear. To apprehend something means to be aware of it,
or to foresee or anticipate it.
- Assault: apprehension, believing such contact will occur imminently
Privacy Torts:
- Unreasonable Intrusion on a Person’s Seclusion – no publication needed
o Intentionally intrudes on your solitude & is highly offensive to a reasonable
person
- Unreasonable Publicity Given to a Person’s Private Life
o Gives publicity to information about you: highly offensive to reasonable person &
is not newsworthy or a matter of public record
- Placing a Person in a False Light – could be true or false statements

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 o 1. Gives publicity to a matter, 2. Information puts you in a false light, 3.
Information would be offensive to a reasonable person, 4. Malice standard
- Appropriation of a Person’s Name or Likeness
o

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Sentences to Use:
Negligence is a failure to behave with the level of care that someone with ordinary prudence
would have exercised under the same circumstances.
 Duty refers to a legal obligation for one party to act or perform in some way with respect
to another party
o May examine the Rowland factors to determine whether the defendant owed a
duty.
 Standard of Care is the degree of caution one party is required to follow. Deviance from
the degree of caution is a breach of the standard of care.
o May examine Learned Hand, the reasonable person standard, industry, business
practice, and customs to determine if the standard of care was breached.
 Actual causation refers to whether the harm would have occurred but for the defendant’s
actions.
 Proximate cause refers to whether the injury was foreseeable and whether the plaintiff
was a foreseeable injured party.
 A plaintiff must have some type of injury in order to claim damages.

Strict Liability is the imposition of liability on a party for an action regardless of what his intent
or mental state was when committing the action. You only need to prove that the tort occurred
which caused damages and that the party was responsible.

Product liability may have strict liability and/or negligence claims. A strict liability claim
 A product may have a design defect if it fails the consumer expectation test or if it fails
the risk utility test. The risk utility test examines whether there are any RADs available.

The elements of defamation:

1. Defendant published a communication
2. Nature of the communication was communication of a fact
3. Communication concerned the Plaintiff
4. Communication was false
5. Communication was defamatory
6. The person receiving the communication understood it to be about the Plaintiff and to be
defamatory
7. Defendant was guilty of fault
There are some instances for a defamation in which additional special damages. where a plaintiff
must show some sort of loss of economic benefits, in addition to pure reputational/ dignity harm
to win. In regard to libel per se, written defamation is libelous per se if its defamatory nature is
apparent on its face. Generally the court does not require plaintiff to prove special damages for
libel per se. In regard to slander per se, there are 4 types of slander per se where Plaintiff does
not have to prove special damages to win: Falsely saying the p committed a criminal act, Falsely
charging the p with conduct detrimentally affecting his business, Falsely saying the p has
engaged in serious sexual misconduct, or Falsely saying the p has a "loathsome disease".

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