INTRODUCTION TO NEGLIGENCE

Tort Law Generally

 Tort law is about justice for the victim, NOT enforcement of state rules (like criminal law)
 Case law (judge made law) can always be amended by statute (through legislation)
 Legislation > case law, except when there are questions regarding constitutionality
 Tort law is not about culpability or blameworthiness, it's about responsibility

 "To commit a tort is to act in a manner that the law deems wrongful toward and injurious to another, such that the
other gains a right to bring a lawsuit to obtain relief from the wrongdoer (or tortfeasor)"
 The word “torts” in turn refers to a collection of named and relatively well-defined legal wrongs that, when
committed, generate a right of action in the victim against the wrongdoer.
 Tort law articulates legal responsibilities or duties that persons owe to one another, and provides victims of conduct
breaching those duties with the power to obtain redress against those who have wronged them.

Elements of Negligence

1. Duty [defendant owed a duty to the person or class of persons]

 Do you owe anything at all to begin with?
2. Breach [defendant breached that duty]
 What do you owe to someone?
3. Cause [the breach of duty was a cause of injury]
 Actual
 Proximate

4. Injury [legally-cognizable harms]

 Legally-cognizable harms = physical harms (injury, property damage, loss of wealth)
 Interests to your person & yourself

*ALL ELEMENTS MUST BE PROVED BY A PREPONDERANCE OF EVIDENCE

WALTER v. WAL-MART STORES, INC. (2000) (p. 49)

 A plaintiff is entitled to a judgment and a compensatory award when the evidence of liability is overwhelming, and
the evidence of the harm establishes a rational basis for the damages. Trial court was within its right to pull question
of liability from a jury since Walter met each element of the prima facie case. Monetary amount is acceptable.

Respondeat Superior

 Vicarious liability doctrine specific to employer/employee relationship

 Applies to employers' responsibility for their employees
 In Walter v. Wal-Mart, this means that Walmart is also on the hook, but does not replace Henry (does not matter that
Wal-Mart had precautionary systems put in place)
INJURY

 Physical harm: (1) bodily harms and (2) damage to, or destruction of, tangible property
 Loss of wealth
 Emotional distress (previously not treated as an injury)
THE DUTY ELEMENT
A viable claim in negligence involves the plaintiff showing that the defendant had an obligation to the plaintiff to be
careful not to cause their injury

 Duty is a question of law [i.e., judge makes decision about the element] that revolves around reasonable foreseeability
 object of reasonable foreseeability: injury to a specific person or class of persons
 For most activities, there is an unqualified, general duty of care
 Qualified duties: (1) Affirmative duties to rescue and to protect, (2) Premises liability, (3) Pure economic loss
 Easy duty cases: privity rule, imminently dangerous products

Black Letter Law in MacPherson [liability for injuries caused by carelessly produced products]

 Privity [contractional relationship between π and ∆] is normally not a necessary condition/predicate for the
recognition of duty [obligations owed between parties] in negligence law
 Cardozo: Source of duty of care is IN THE LAW [owed by manufacturers to users of their products], as
opposed to solely contractual obligations [i.e., your contractional relationships do not limit your duties]
 Reinforces Heaven v. Pender; broad range of activities carry with them the a duty to be vigilant of others physical
well-being based on the fact that it's reasonably foreseeable to injure them
 An unqualified duty to take reasonable care not to cause physical harms is owed to another whenever a person
“of ordinary sense” recognizes that careless conduct would create “danger of injury to person or property"

GENERAL DUTY RULE [in cases of misfeasance]

 For most activities, you owe an unqualified duty to take reasonable care not to cause harm when it's reasonably
foreseeable that acting carelessly would likely cause injury to a class of persons
 To whom a duty should run depends on the foreseeability of harm.
 Harm to a person is foreseeable if a reasonably prudent person would anticipate that such harm was likely to
result from the negligent conduct at issue [q of fact]
 Should they reasonably have foreseen (even if they didn't) injury to the particular plaintiff [if ∆ was not taking
reasonable care]?

 unqualified duty = no exceptions

 Misfeasance = in cases where you are actively causing the harm = duty to refrain from harming others = negative duty

Affirmative Duties to Aid/Rescue/Protect

 Typically no duty to take affirmative steps to aid/rescue/protect another person [osterlind v. hill]
 Nonfeasance is usually legally permissible [nonfeasance = duties to aid/assist other people = positive duty]
 In cases of nonfeasance, you did not cause the harm, but you could have intervened to stop it from happening;
core idea is the absence of any effort by someone to prevent something bad from happening to another person
 Little pockets where there will NOT be a duty, even if you reasonably foresee injuries
Standard Common Law Exceptions [to No Duty Rule in Cases of Nonfeasance]

*varies by jurisdiction, state statute typically determines specifics of affirmative duties

1. If ∆ had some hand in placing π in peril, they may INCUR a duty to take reasonable steps to warn/protect/assist π
2. A voluntary undertaking to warn, protect, or rescue can generate a duty to do so

 If you start to assist someone in some way, thereby deterring others from doing so, tort law will recognize a duty
3. Special relationship (pre-tort relationship, typically between ∆ and π)

 Doctor/patient  Co-venturer
 Business/patron  Neighbors
 [Taco Bell: duty to take reasonable steps  Duty to 3rd parties
to assist a stricken patron of your business  [Tarasoff: therapists owe duty to warn
(ex. providing basic first aid, calling 911)] known/identifiable victims when they
 Police officer/arrestee predict/determine, or pursuant to
 Train operator/passenger (common carriers) standards of his profession, should
 Employer/employee predict/determine (i.e., has constructive
 Innkeeper/guest knowledge), that patient poses a serious
 Prison/prisoner danger of violence to that individual]

PREMISES LIABILITY

In part because land ownership is distinctive (in that there is not always any immediate participation of the
possessor/owner; the possession of land is often passive), courts recognize special duty rules in cases alleging carelessness
in the maintenance of real property [distinct class of negligence claims, specifically re: duty analysis]

 Only applies to claims when injury is caused by something about the land itself [caused by a defect in the premises]
 Duty is qualified by status as someone on the property; status is what determines the duty owed to them

Distinction of Statuses in Premises Liability - Plurality Rule [no majority rule]

 Most common [plurality]: two-way distinction: (1) trespassers (2) non-trespassers [Demag v. Better Power Equip.]
 Less common: tri-partied distinction: (1) invitee (2) licensee (3) trespasser [Leffler v. Sharp]
 Least common: no distinction
 CA says a possessor of land owes a general duty of care to anyone on their premises; allows jury to factor in
statuses to "reasonable" analysis when deciding breach element to determine whether ∆ acted reasonably

Status Category & Definition Duty Owed [answers the breach question]

INVITEE [permitted entrance, non-trespasser]  Duties owed to invitee are robust

 Duty to warn (similar to licensee)
 An invitee answers an invitation to enter the  In addition to the warning, you have to correct the
owner’s premises “for their mutual material defect in the premises that put them at risk (address
the dangers)
 advantage"[ex. Target shopper]
 Advancement of commercial interests

LICENSEE [permitted entrance, non-trespasser]  Duty to warn them of known but hidden dangers
[i.e., features of your property that you know to be
 A social guest dangerous but might not be apparent to them]

TRESSPASSER [non-permitted entrance]  No duty of care, only duty owed to trespasser is to

refrain from willfully or wantonly injuring them
 Someone who is on the premises without permission
(you don’t have to realize you are trespassing to be
considered a trespasser)

Two Exceptions [to rule that trespassers are owed no duty]

1. Child trespassers - "attractive nuisance doctrine"

 Possessors of land must exercise reasonable care to eliminate potential dangers or provide adequate warning
 "Attractive nuisance doctrine" injury is caused by an object on the land that is likely to attract children
2. When possessors of property have reason to know about constant trespassing in a limited area
 Possessor/occupier of property does not mean owner (renter)

PURE ECONOMIC LOSS

Pure Economic Loss

There is no unqualified duty of care to avoid causing someone economic loss NOR recovery for pure economic loss

 Qualified by a predicate injury, in cases where economic loss piggy backs off an injury caused by ∆ (ex. if DD (∆)
crashes into π loss of wages caused by inability to work due to injury]]
 Purely economic injury occasioned by interruption of commerce is not recoverable in a negligence action absent
damage to person or property, a contractual relationship, or some other special relationship sufficient to compel
conclusion of duty to avoid economic injury [Aikens v. Debow]

Factors

1. Forseeability - necessary but not sufficient

2. Policy factors [policy considerations = pragmatic considerations]
 Likelihood & magnitude of injury
 Magnitude of action required to prevent loss
BREACH [fault]
Breach [fault]

 A duty is breached when the risk imposed on a person you owe the duty to is unreasonable (per RPP/OPP standard)
 risks must be foreseeable, and foreseeable risks must be reasonable [if unreasonable, then not foreseeable]
 you cannot be held liable for an unforeseeable risk
 Breach is a question of fact for the jury; it is solely the jury's role to evaluate the testimony and to decide whether ∆
exercised reasonable/ordinary care under the circumstances [Martin v. Evans]
 The mere facts that (1) you owe an unqualified duty to π & (2) you injured π, do not equate to a breach of duty
 Breach revolves around fault; you can fulfill your duty and still injure someone [Campbell v. Kovich]

BASELINE/DEFAULT STANDARD OF CARE

Reasonable/Ordinary Care

 Requires individuals to take all reasonable precautions to prevent harm when your conduct poses a risk that makes
harm reasonably foreseeable to a class of persons (not all possible precautions) [Campbell v. Kovich]
 reasonable care is not extraordinary; designed to safeguard against 98% of risks, not 100%
 does not require someone to foresee such extraordinary perils [Adams v. Bullock]
 Factors to consider when establishing reasonable care:

 notice (has type of incident happened before?)  are precautions taken?

 foreseeability (is harm reasonably foreseeable?)  is there a special danger here (at this point of
 violation of the law (what does stat. law say?) railway, is more danger created?)
 what is burden on ∆ to create a safer option?

Reasonable/Ordinary Person: [the RP/fault standard] asks whether the actor (∆) behaved as would an ordinarily
constituted person acting reasonably under the circumstances
 Objective in focusing on: (1) conduct (not state of mind) and (2) a hypothetical construct [as to ask whether ∆'s
conduct conforms to what a RPP would have done, not ∆ themselves and all their idiosyncrasies]
 Objective standard does not entail that it's never relativized; a single standard of ordinary care can be relativized
or indexed based on circumstances (level of expertise, physical disability, etc.)
 Ratcheted down for ∆ with discreet, documentable physical disabilities (ex. blindness) to reflect their physical
disabilities (ex. what would a blind RPP do?)
 Generally not true in cases of cognitive/mental disabilities [Vaughan v. Menlove]
 Occasionally discreet mental disabilities will be treated differently but no official insanity defense in tort law
TJ Hooper Rule: Customary, common, average, care does not equal reasonable care [even if true for most cases]
 The mere fact that it is customary to do something a particular way does not settle the question of whether reasonable
care was taken [customary care is PROBATIVE or illuminating, not definitional nor dispositive re: reasonable care]

 There are customary ways to do things that are NOT reasonable [even if ∆ has acted with care that is customary
for people/enterprises like ∆ to take, that alone is not sufficient to establish that ∆ met RPP standard]
SPECIALIZED [heightened?] STANDARDS OF CARE
Professionals or Experts [Dakter]: a person engaged in a profession or trade is required to exercise the care that a
reasonable member of the profession or trade [with such special knowledge or skill] would exercise in SoSC [Dakter]

Common Carriers [Jones v. Port Authority]: commercial and governmental operators of boats, buses, planes, and trains
are held to an extraordinary standard of care; heightened duty owed to fare-paying passengers

Children: A child is held to a standard calibrated to the capacities of an average child of the same age and experience
unless that child has engaged in an adult activity (ex. driving a car), in which case they'll be held to ordinary RPP standard

 In some jdx, children under a certain age will not be held to any standard at all (i.e., they don't owe a duty)
[Appelhans: Tender Years Doctrine IL]
Parental Liability: No strict liability for parents; Liable IF: parent was aware of prior conduct sufficient to put them on
notice that dangerous conduct was likely AND there was an opportunity to intervene
CUSTOMARY CARE

Anti-TJ Hooper Rule/Professional Negligence Rule [Johnson v. Riverdale Anesthesia Assoc.]

I. Substantive rule: In cases of professional negligence (medical/legal malpractice), customary care IS reasonable care
(custom is incorporated into the definition of reasonableness, π has to prove that ∆ deviated from standard of care
used by other members of the profession
II. Evidentiary rule: you need to have expert testimony in order to establish what customary care even is given the
circumstances [& expert witness can't testify as to how they would've personally acted in SoSC*** overruled]
 Anti-anti TJ Hooper Rule [clarifies how customary care is established, doesn't overturn Johnson]
 Expert witnesses can be cross-examined to testify about their own practices in SoSC insofar as they relate to
an applicable standard of care, [and jury can consider expert's testimony as relevant to their determination of
the custom, as well as jury's determination of credibility (battle of experts)], unless evidence is excludable on
other evidentiary grounds [Condra v. Atlanta Orthopaedic Group].

INFORMED CONSENT CASES [sub-set of medical malpractice cases revolving around informed consent]
 states split on whether to follow Anti TJ Hooper Rule (professional negligence) or revert back to TJ Hooper rule
1. Reasonable/prudent patient standard [Largey v. Rothman; TJ Hooper Rule]
straight question of fact for jury
 Whether reasonable patient considered undisclosed risk a material factor in their decision to undergo the
procedure in question [considers the significance of patient's self-determination in consenting to treatment]
 If a reasonable patient in SoSC would consider the risk to be "material" in their decision to undergo the procedure,
then it must be disclosed by the physician; failure to disclose constitutes breach
 Physicians are more likely to be held liable in these jurisdictions because a reasonable patient may demand to
know more than what is customarily disclosed by physicians in that profession
2. Reasonable physician standard [Jurisdictions that follow Anti-TJ hooper rule]
 Whether a physician would customarily disclose this risk to patient [expert testimony establishes custom]
 If physician discloses all of the risks that are customary for physicians in that profession to disclose, they are not
liable even if patient suffers injury caused by undisclosed risk. [failure to disclose customary risks = breach]
 Provides physician a substantial amount of discretion based on the particular physician or medical community
because juries have to defer to expert testimony of customary care

HAND FORMULA [U.S. v. Caroll Towing Co.]

 Learned Hand formula adds precision to the reasonable person test [standard is a function of three variables]
 Determines breach by calculating whether the burden of taking adequate precautions to avoid a bad outcome was less
than the probability that the bad outcome will occur without precautions multiplied by the magnitude of the loss
 B > P x L = ∆ was not careless
 Economic cost-benefit analysis: literally putting dollar amounts on everything and doing the math
 If just money, no questions/issues with valuation [see Rhode Island Hosp. Trust. Nat'l. Bank v. Zapata Corp.]
 You will rarely see a court ask a jury to conduct cost-benefit analysis, instead they'll ask what RPP would do in SoSC

RES IPSA LOQUITUR ["the thing that speaks for itself"; evidentiary doctrine to shift burden of proof from π to ∆]
 When applicable in negligence actions, it permits a jury to infer that P’s injury was caused by D's carelessness even
when P presents no direct evidence of particular acts or omissions on the part of D that might constitute carelessness
 Three features of these cases:
1. Injury happened in a way that ordinarily does not occur absent carelessness on someone's part;
2. ∆ had exclusive control over instrumentality causing the injury or they were exclusively responsible for it
3. The injury must not have arisen from acts or carelessness on the part of plaintiff
 Prevents a grant of summary judgement to ∆ on issue of breach notwithstanding plaintiff's failure to produce evidence
that describes exactly what ∆ did that was careless [leaves it to jury to decide whether ∆ was careless in light of RIL]
 [Byrne v. Boadle] barrel of flour - harm doesn't happen absent carelessness, ∆ in exclusive control, π didn't
contribute
 RIL instruction should be given in a medical malpractice suit where the circumstantial evidence is such that the jury
could draw a reasonable inference of negligence using common sense and experience [Kambat v. St. Francis Hosp.]

NEGLIGENCE PER SE [statute replaces RPP standard ]

 The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an
administrative regulation whose purpose is found to be exclusively or in part
 to protect a class of persons which includes the one whose interest is invaded, and
 to protect the particular interest which is invaded, and
 to protect that interest against the kind of harm which has resulted, and
 to protect that interest against the particular hazard from which the harm results [Victor v. Hedges]
 Where there's legislation or regulation that directly addresses some conduct, it replaces the reasonable person standard
[even if the ∆ acts reasonably enough to meet RPP standard but falls short of statutory standard, they're in breach]
 Permits a negligence π to point to a standard of conduct that's set out in a safety statute or regulation as establishing
the standard to which the defendant was required to conform
 The violation of a statute that governs the manner of automobile operation constitutes negligence per se. Here,
defendant was not wearing prescription glasses as required by their license [Dalal v. City of New York]

Burden of Proof
 Burden of production: the requirement of providing to the court some evidence in support of an alleged fact or set of
facts that the party bearing the burden seeks to establish.
 Evidence will often be “circumstantial” rather than direct; π may seek to enlist expert testimony to help establish
inferences based on circumstantial evidence (i.e. skid marks at car accident scene = can infer careless driving)
 Burden of persuasion: the requirement that the plaintiff must persuade the judge or jury that it is more likely than not
that the defendant acted as the plaintiff alleges.
 To say the same thing in reverse, if the plaintiff’s evidence establishes that it is equally likely (or less likely than
not) that ∆ did or did not engage in the conduct alleged by π, then the judge or jury must find for ∆.
CAUSATION
One must show that a defendant CAUSED the injury, the defendant's negligence/carelessness/breach must have CAUSED
that plaintiff's injury in order to be held liable
 Two separate requirements
1. Actual cause (factual cause, cause in fact)
2. Proximate cause (legal cause)
 Causation is a question of fact for the jury

ACTUAL CAUSE [causation v. coincidence distinction]

 ∆'s breach is an actual cause of π's injury only if it the injury would not have occurred "but-for" ∆'s breach
 "But-for" test: Is the breach a necessary condition of the injury occurring? [test of necessity, not sufficiency]
 If it would have happened anyway, then the breach wasn't an actual cause
 When we get to "cause", we've proved duty, injury, and breach elements [not a question of what ∆ did/didn't do]
 We're never looking for THE cause, we're just looking for A cause

Standard of Proof for Actual Cause

π must prove that but-for ∆'s breach, that π would not have suffered their injury to meet standard of proof
 The evidence presented must establish a causal link between the alleged breaches of duty and the injury in order for it
to be a matter that must be determined by a jury.
 Evidence establishing an increased risk of harm is insufficient evidence to claim that those conditions caused
injury [Butts v. Weisz]
 Plaintiff is not required to disprove other possible explanations for bladder cancer [Cooper v. Takeda Pharma.]
 Preponderance of the evidence standard: more likely than not; greater than 50% probability that the fact alleged is true
 Burden shifting technique (burden shifts to ∆)
 Alternative Liability
 Market Share Liability
Actual Cause in Failure to Warn Cases [Cooper v. Takeda Pharma.]
 In a failure to warn context, determination of actual cause has two steps
1. Whether absence of adequate warning was a but-for cause of π's adopting/retaining treatment regimen
2. Whether treatment regimen was a but-for cause of π's bladder cancer (not just cancer, specific type of cancer)
 Expert testimony on medical causation is admissible if there's no substantial evidence of an alternative explanation;
should not be excluded unless it's speculative, based on unconventional matters or grounded in unsupported reasoning

ACTUAL CAUSE - MULTIPLE CAUSES

 If each are necessary (if you need both to cause an injury), then neither are sufficient on their own
 If each cause is sufficient (if you only need one to cause an injury), then neither one is necessary [necessary = but-for]

Multiple Necessary Causes [McDonald v. Robinson]

1. Plaintiff is not required to produce evidence that eliminates all other possibilities
2. If the acts of two or more ∆s concur in contributing to and causing an accident [combined, concurrent negligence]
and but for such concurrence the accident would not have happened, the injured person may sue both actors jointly or
severally, and recover against one or all of them, according to the proven or admitted facts of the case."

3. Both defendants made an essential contribution to the injury; both necessary conditions; plaintiff must prove A but-for
cause, not THE but-for cause [individually necessary, jointly sufficient = jointly and severally liable]

Multiple Sufficient Conditions [Ford Motor Co. v. Boomer]

 In multiple-causation cases, defendants may be liable if plaintiff demonstrates the negligent exposure was more likely
than not sufficient on its own to have caused the harm.
 The negligent actions of two or more defendants that concurrently and sufficiently cause a plaintiff to become injured
may result in each defendant being held liable for the harm caused if plaintiff demonstrates the negligent exposure
was more likely than not sufficient on its own to have caused the harm.Al
 MSC/NESS Test: According to this test, an actor’s tortious conduct counts as the actual cause of a victim’s injury so
long as (a) the conduct was one of a set of conditions that existed prior to the injury; (b) the set of conditions, taken as
a whole, was sufficient to generate the injury, and (c) without the actor’s tortious conduct, the set of conditions, taken
as whole, would NOT have been sufficient to generate the injury.

Alternative Liability/Alternative Causation [Summers v. Tice, shifts burden of proof from π to ∆]

 Two independent tortfeasors may be held jointly liable if it is impossible to tell which one caused π's injuries [50-50
chance that each ∆ caused injury, doesn't meet preponderance standard (51%)], and the burden of proof shifts to ∆ s to
either absolve themselves of liability or apportion the damages between them

 When two or more persons by their acts are possibly the sole cause of harm, and the plaintiff has introduced evidence
that one of the two persons is culpable (responsible)
 π has to show that two defendants have independently engaged in careless conduct that was equally likely to have
caused π's injuries, but that the conduct of only one of those careless defendant's actually did cause π's injuries.
 At that point, if there is none or highly inconclusive evidence regarding which defendant actually caused the
injury, P is entitled to presumption of joint liability for their injury and burden of proof shifts to defendant

Market Share Liability [Sindell v. Abbot Labs]

 If multiple manufacturers of fungible goods are named as defendants in a negligence action and it cannot be
determined which manufacturer caused the precise harm complained of, the manufacturers will be held
proportionately liable in accordance with their market share in the market of the good that caused the injury
 Harming instrumentalities are fungible; no relevant difference in who manufactured the pills
 The court MUST establish…

1. Large enough group – that is likely to include actual cause [harming instrumentalities are fungible]
2. π cannot prove which one was the actual cause through no fault of their own
3. π must be prepared to meet the normal burden of proof for other elements & establish general causation [since
cannot prove specific cause, must show that ∆'s breach can normally cause the injury]
4. If those conditions are met…. The BURDEN SHIFTS to the D
5. If the D cannot show defenses… then they are LIABLE TO P for the % of their market share at the time of the
injury

PROXIMATE CAUSE

Proximate Cause [aka legal cause]

 The actual cause element makes the connection between breach and injury
 The proximate cause element makes sure that it's the right sort of injury; necessarily an actual cause
 Proximate cause is subject to a re-description maneuver
 Modern tests of proximate cause [solving same puzzle]: (1) Reasonable Foreseeability Test and (2) Risk Rule

Reasonable Foreseeability Test for Proximate Cause

 Much less structure than risk rule; re-description maneuver
 If and only if the injury was among those that were reasonably foreseeable, then ∆ can be a proximate cause of injury
 Revolves around reasonable foreseeability
 The role that RF plays in injury is to say "is this type/manner of injury a reasonably foreseeable type of injury to be
brought about by this breach of duty?" If not foreseeable, then ∆ is not liable [Union Pump Co. v. Allbritton]
 Depending on how you describe the injury, it can be less likely or more likely to reasonably foresee
 More general description of risks = easier to reasonably foresee = more likely π wins
 More specific/detailed description of risks = harder to reasonably foresee = more likely ∆ wins
 Adopt the more generic description of what happened & then ask if that was reasonably foreseeable
Risk Rule; Harm within the Risk Test
 [Jolley v. Sutton London Borough Council]: ∆ can be deemed liable for negligence where the nature of the risk and
the type of injury were reasonably foreseeable—even if the precise manner and extent of the injury were not.

 Proximate cause is satisfied IF and ONLY IF the injury π suffered was a realization of one or more of the risks
that rendered ∆'s conduct as careless
 Is the harm that π suffered the type of harm within those risks that made ∆'s conduct careless? If yes, then prox. cause
 List what makes the conduct careless (potential risks) and then look to see what happened to see if it's on list

Superseding Cause
 Two basic features: (1) two wrongdoers acting independently of one another; no concert of action or common plan
between them and (2) their wrongs are committed in a sequence such that there's an initial wrongful act by T1 that is
more remote in time/space from π's injury, and subsequent wrongful act by TP involves a relatively direct or
immediate infliction of injury on the plaintiff [T1 is actual cause but not proximate cause]
 T1 has to do something that is careless & necessary to the injury
 TP's conduct has to intervene between the time of the initial careless actor's careless act and T3's injury
 An intervening act of a second tortfeasor blocks the attribution of responsibility to an earlier tortfeasor such that the
earlier tortfeasor is in no way liable to π for their injury [although there are two careless actors, only one party can be
liable because intervening tortfeasor supersedes the liability of the previous tortfeasor]

 Where “the use of the product is beyond its intended or reasonably anticipated scope,” an injury resulting from that
use is “not...probative of whether the product was fit, suitable, and safe" [Port Authority of NY, NJ v. Arcadian Corp.]
 Manufacturer of component that's adulterated for criminal purposes is not liable for injuries caused by the
adulterated end product where the component itself was not defective or unreasonably dangerous and where the
component’s adulteration was not reasonably foreseeable
 If the intervening act is merely careless, it is less likely to be held a superseding cause than if that act were deliberate
 Exception: intervention in medical malpractice [intervening in medical malpractice is considered to be reasonably
foreseeable (if drunk driver hits you, puts you in the hospital, a doctor performs surgery due to your injuries)]

Palsgraf Case
 Weird set of facts that brings out further feature of negligence (besides main 4 elements)
 Proximate cause is an alignment concept (tries to make sure breach & injury are more aligned)
 Palsgraf Problem: failure of alignment between duty and breach [carelessness/breach not properly directed]

 No breach as a matter of law because relationality

 "The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its
relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave
notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable
unless it involves the invasion of a legally protected interest, the violation of a right."
 Although π suffered a harm, π's rights were not violated & ∆'s breach was not directed at π so no wrong

π = Package Carrier π = Mrs. Palsgraf π = Adjacent Commuter

Did π suffer an injury? Yes Yes Yes
Duty owed by LIRR to π? Yes Yes Yes
Breach of that duty? A rsble jury could find No rsble jury could find A rsble jury could find
Causation (actual & prox.) A rsble jury could find A rsble jury could find A rsble jury could find
(dictum)
 Contributory negligence? Yes, as a matter of law No, as a matter of law No, as a matter of law
RESULT P.C. would be lose as a matter Mrs. Palsgraf loses as a A.C. would win if jury finds for
of law matter of law her

Identifying the Framework of Negligence

 [Cardozo] There's no cause of action if the ∆'s conduct does not constitute a breach in the duty owed to the π
 No breach as a matter of law
 Importantly, you have to establish that you breached a duty of care owed to the plaintiff [relationality]
 Need for careless act to be wrong, a wrong in relation to the plaintiff (showing a rights violation AS TO π)

Relational Aspect of Negligence

 General duty is owed to those within reach of a ∆'s conduct because “[t]he risk reasonably to be perceived defines the
duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.”
 Breach must be careless towards π (has to have that relational aspect in order to be considered a wrong)
 What the plaintiff must show is “a wrong” to herself (i.e., a violation of her own right), and not merely a wrong
to someone else, nor conduct “wrongful” because unsocial, but not “a wrong” to any one.
 Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other
travelers, only because the eye of vigilance perceives the risk of damage.
 The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to
others within the range of apprehension.
 Qualified duties only make sense if duties are relational (biggest argument for cardozo)

Kinsmen
 None of the Kinsmen plaintiffs have a Palsgraf problem because both defendants could definitely expect that their
careless conduct in insecurely mooring the ship could cause injury to any riverside owner

 According to Friendly, Continental's (∆ with deadman) agents could readily foresee that a ship insecurely moored
poses a serious threat to all structures down river and persons thereupon them
 Kinsmen was in an even better position to be able to reasonably foresee who is at risk than Continental
 Question under proximate cause: whether the manner in which these events unfolded was so crazy as to render the
breach of each of the defendant's as a remote cause instead

Quisenberry [duty & proximate cause] BLL: In take-home asbestos cases, a growing number of jurisdictions have said
you're liable to third parties of employees despite no direct interaction because it's foreseeable and the party is fixed [looks
similar to Mussivand v. David]

 Dissent thinks foreseeability is not relevant

All professionals (doctors, lawyers, accountants, architects, etc.) are experts, but not all experts are professionals
DEFENSES

CONTRIBUTORY NEGLIGENCE

Contributory Negligence [p. 817-824]

 Was a discrete defense that said: "ANY carelessness on the part of the plaintiff whatesoever (that is determined to
have been a cause of his injury), the plaintiff is deemed to be totally responsible, despite the fact that the defendant’s
carelessness also caused the injury"
 If the plaintiff’s carelessness contributed to his injury, then as a matter of law his conduct would be deemed the only
legally relevant cause of the injury.
 Plaintiff's careless conduct sort of functions as a superseding cause by blocking the imposition of liability on the
defendant (where ∆ is a remote cause)
 Rules of contributory negligence do NOT apply in claims alleging recklessness or intentional wrongdoing by ∆
 "Even in negligence cases, the harshness of the contributory negligence regime was ameliorated both by informal
practices and explicit legal rules. Informally, jurors were often made aware of the harsh implications of a finding of
contributory negligence.
 Jury nullification [jury knows that π would lose if they say π
 Ex. Jury may have been apprised by the trial judge’s instructions that they would be required to find for ∆ if they
found that the π's fault played a role in her being injured. Following, some jurors may have “nullified” the formal
law by declining to assign fault to a plaintiff whom they thought deserving of compensation.
 Doctrine of Last Clear Chance: "If a defendant has the last opportunity to prevent an accident resulting from careless
acts of both the defendant and the plaintiff, the defendant will not enjoy the protection of the contributory negligence
defense"

COMPARATIVE FAULT

Comparative Responsibility/Comparative Fault [p. 824-842]

 Contributory negligence has been abandoned in favor of comparative fault in all but 5 jdx (AL, DC, MD, NC & VA)
 An affirmative defense to negligence by which the plaintiff’s own carelessness operates to limit (and in some cases
defeat) defendant’s liability
 Different from "apportionment of liability," which encompasses ∆ v. ∆ comparisons
 Re: Intentional Torts
 Comparative fault is not even a partial defense to an intentional tort, whereas “apportionment” between an
intentional tortfeasor & negligent tortfeasor is appropriate
 Comparative responsibility regimes differ in many respects, but they all do away with the idea that any degree of
carelessness on the part of π constitutes a per se bar to recovery
 Pure comparative fault: π's fault will only reduce ∆'s liability regardless of the degree of π's fault [12 states]
 Modified 50%: If the π is 50% or more at fault for their own injury, then π loses outright & ∆ is not liable.
 Modified 51%: If the π is more at fault than ∆, then π loses outright and defendant is not liable [PA, NJ, etc.]
 P's carelessness can affect their case in different ways
 Proportionality-based damages
 Divided damages

Jurisdictions: Comparative Fault v. Assumption of Risk

 Most states have gotten rid of implied assumption of risk as a defense
 For the states that haven't done that (they have both implied assumption of risk AND comparative responsibility),
those jurisdictions are in effect saying you can voluntarily encounter risks in a way that isn't careless
 It can be reasonable to voluntarily encounter a risk that you appreciate as a risk
 In these jurisdictions, it can be the case both that where you are careless and injure yourself, you could still recover
something OR you where you were not careless and injured yourself, you could recover nothing
 Both comparative responsibility and assumption of risk

ASSUMPTION OF RISK

Assumption of Risk

 Core idea: A competent π who adequately appreciates the riskiness of some activities and then who voluntarily
chooses to encounter one of those risks cannot seek redress from ∆ on a claim that ∆ owed [3:42]
 If I had a clear eyed view of what risks I was facing, but I nevertheless chose to encounter those risks, even if I'm
aware that those risks exist in part due to ∆'s carelessness, then I assume that risk and cannot sue ∆ if I suffer an injury
 Assumption of risk is a complete defense (π loses outright if they assume the risk) unlike comparative responsibility

Implied Assumption of Risk: Although assumption of risk understood as incorporating π's fault is not a defense, implied
assumption of risk is still available to as for non-negligent conduct which constitutes a waiver or consent of which
involved no negligence

 There are certain instances in which the choice to confront a danger is a reasonable choice, yet because that choice is
an authentic choice (voluntarily, made with full awareness), π loses right to complain about that danger [instances
where you're not signing a waiver, you're not acting unreasonably, but you still lose your right to complain because
you have chosen to proceed in the face of a danger that you fully appreciate]
 Natural home for implied assumption of risk is recreational activities [b/c inherently fully optional]
 [Smollet v. Skating Dev. Corp.] Even though π's decision to skate was reasonable, her lawsuit can't prevail
because she fully understood the risks of no guard rail, etc. but voluntarily continued to skate in spite of that

 When π exercises near complete control over whether they will confront a danger that is generated (in part at least) by
∆'s carelessness, and they proceed to confront that danger voluntarily even though they fully appreciate the danger
[magnitude of injury, etc.], then π's decision to proceed in the face of that danger overwhelms/supersedes ∆'s
carelessness

 Renders the danger π's problem, not ∆'s problem

Express Assumption of Risk: Someone, in advance of doing something, has waived their right to sue in the event that
they get injured through someone else's careless while doing that act (doctrine of waiver)

 Not every state recognizes implied assumption of risk, but every state recognizes express assumption

STATUTES OF LIMITATIONS

Statute of Limitations
 Set deadlines on when you can bring legal claims [if π misses deadline, they lose their right to sue]
 The mere passage of time can affect (can entirely eliminate) the ability of a plaintiff to seek redress
 It's a feature, not a bug, that it keeps an otherwise meritorious claim from going forward

 Modern statutes of limitations incorporate the discovery rule (which says that the limitations period doesn't start until π
discovers or should have discovered through reasonable diligence or inquiry that they may have suffered a compensable
injury)

 Limitations for workers comp. claims (inquiry notice) commences when the employee discovers or in the exercise of
reasonable diligence should discover the nature of seriousness and probably compensable nature of his disease (when
you have reason to believe disease was caused by someone's tortious conduct towards you) [Ranney v. Parawax Co.]

Statute of Repose

 A fairly strict version of SOL, usually applying only to medical devices that are put in your body [clock starts ticking
right when it's put in] (achieved through medical lobbying)

IMMUNITIES

Sovereign Immunity

 Federal Torts Claims Act: To render injurious conduct that was attributable to the government actionable under
ordinary principles of tort law by imposing respondeat superior liability on them
 Rolls back sovereign immunity; liability payable by the federal government for wrongful acts committed by its
employees acting within their scope of employment (incorporates tort law of the state in which tortious conduct
occurs)

No-Duty Rules for Government

 To protect against people second guessing policy decisions by the government, the FTCA barred actions for injuries
caused by "discretionary functions"

 Placement of mailboxes = discretionary function

 Discretionary function exemption test: (1) Is decision a matter of judgement/discretion? (2) Is that decision
subject to policy analysis? [Riley v. United States]
DAMAGES

Damages

 How do you measure how much money someone is entitled to as a plaintiff if they win their case?
 Plaintiff has won the case if they prove prima facie case & defendant has no complete defenses against them
 Types of relief
 Compensatory damages [money to compensate π, determined by a jury]
 Injunctive relief
 Punitive damages

COMPENSATORY DAMAGES
π is entitled to fair and reasonable compensation from ∆ in light of the losses they have incurred because of ∆'s tortious
conduct to them [for injuries that owe in part due to ∆'s conduct]

 The Eggshell Skull Rule: the tortfeasor takes his victim as he finds him. [Smith v. Leech Brain & Co. Ltd]
 The idea is that, having wronged and injured another, a tortfeasor cannot be heard to complain that the amount of
damage caused to that other was much greater than anyone could reasonably have expected because of a hidden
physical vulnerability in the plaintiff.

WRONGFUL DEATH ACTS

Wrongful death acts are statutes that allow for two different kinds of lawsuits to go forward: survival actions (brought by
decedent's estate) and wrongful death actions (brought by next of kin)

1. Overturns acteos personalis doctrine (that lawsuit dies with ∆ or π, instead lawsuit is filed by or against estate)
2. Allows for survival actions
3. Empowers new class of claimants to complain about losses caused to THEM in "wrongful death actions"

Wrongful Death Action

A decedent's next of kin, may bring a wrongful death action to recover losses suffered as a result of a decedent's death
under wrongful-death acts

 Recoverable damages include (1) lost future income/earnings of decedent, (2) loss of consortium damages (3) pain
& suffering ONLY IN SOME JURISDICTIONS
 States are split on whether next of kin can recover damages for emotional distress***

Survival Action

Brought by decedent's estate on behalf of decedent to recover damages for claims that the decedent would have had at the
time of their death.

 Depending on the facts, the decedent's estate can recover for: pain & suffering, medical expenses, funeral expenses,
and lost wages (in a very specific way; that is, if not killed immediately and out of work while dying)
PUNITIVE DAMAGES
Plaintiff must make a certain threshold showing that ∆ committed a tort involving willful misconduct, malice or reckless
disregard for the rights of other people before a jury is authorized to decide whether punitive damages are owed at all

 Since standard instances of careless conduct don’t involve that degree of willfullness, malice or recklessness,
punitive damages are very rarely available to plaintiffs suing for negligence
 What determines appropriate amount of punitive damages owed?
 Procedural rules, evidentiary rules, common law rules, statutory rules, constitutional rules, etc.

VICARIOUS LIABILITY
Agent who acts with authority of principle (even if acting outside scope of authority) generates vicarious liability

Respondeat Superior [one type of vicarious liability]

 Most courts use either benefits test or characteristic activities test

 Characteristic Activities Test: asks whether employees conduct was characteristic of the job [Maine v. Taber]
 Court asks whether the cost of on base drinking are "fairly chargeable to the military" [concept of cheapest cost
avoider = person who is in best position to prevent a given harm should be held liable if harm results]
 Because Maine's drinking occurred on base, it was characteristic of the job
 Distinction between employees and non-employee: Contractors are NOT employees
 Older formulation of rule of respondeat superior focused on "benefits"
 Benefits Test: Whether employees conduct was done for the benefit of the employer (If no, then conduct doesn't
fall within scope of employment)

JOINT LIABILITY

Bases for Joint and Several Liability

1. Cases involving vicarious liability

2. Cases where harm/injury is indivisible
3. Cases where ∆s have been found to have aided and abetted a tort, concert of action, conspiracy
4. Principles and agents (the person who is represented and their representative are both liable)

Indivisible Injury (2)

 Courts are split on whether comparative responsibility is compatible with joint and several liability (no majority rule)
I. Comparative responsibility IS compatible with joint & several liability [Ravo v. Rogatnick]
 Damages (fault) are still apportionable even when injury is indivisible
 Plaintiff will be fully compensated if a defendant is missing or judgement proof because they'll just take
100% of their damages from the available defendant
 Defendant bears the risk of a missing codefendant
II. Comparative responsibiltiy is NOT comaptible with joint & several liability [McIntyre v. Balentine]
 In case of missing or judgement proof defendant: Injured plaintiff is NOT fully compensated because they're
only able to take % of damages commensurate with the degree of fault of each defendant, so they only get
proportion from available defendant
 Plaintiff bears the risk because a missing defendant means they can't collect full damages
BATTERY, ASSAULT & FALSE IMPRISONMENT

BATTERY

Battery Elements
1. ∆ acts
2. Intending to cause a contact with π
3. Intended contact is harmful or offensive
 Does not need to be direct, flesh-on-flesh contact
4. Act causes contact

Examples of Battery
 Blowing smoke in someone's face
 Smacking lunch tray out of someone's hands

Cecarelli v. Maher (p. 1094)



Paul v. Holbrook (p. 1096) [purposeful and offensive contact]

 Paul (π) and Holbrook (∆) were coworkers at PMP, ∆ made several Summary judgement for ∆ on all claims except
for the battery claim
 Contact was purposeful and offensive
 Offensiveness is objective (not whether π specifically was offended; it's about whether a reasonable person would be
offended; what is society's view about this type of contact? What's a socially acceptable view?)

Doctrine of Extended Personality (in notes section)

Vosburg v. Putney (p. 1106) [intended contact must be unlawful]

 Vosburg (14 y/o) kicked Putney (12 y/o) in leg during school hours
 Judgement for π for $2500, eggshell π
 Intended contact was unlawful because ∆ kicked inside classroom; maybe not unlawful if they were on playground

Cole v. Hibberd (p. 1109) [intent to cause contact]

 Woman looking over stroller at friend's kids at bar gets kicked in the lower back/tailbone by her friend (probably
drunk/drinking)
 She tries to sue for negligence and not battery because battery claim already barred by SOL
 You don't need specific intent to cause harm, just intent to cause contact
 Case of under-pleading (suing for negligence instead of battery)

Wagner v. State (p. 1118)

 Defendant with severe mental illness, supervised by Utah State Develop. Center in K-Mart, attacks a customer in line
 Customer sues state, alleging negligence and says π couldn’t have formed intent to make contact since they were so
mentally disabled
 This case fails because of analytical structure of intent element in tort of battery (no intent)
 Utah state statute says state is immune from liability for battery (essentially putting superseding cause into legislation)
 The weaker Wagner's claim is against ∆, the stronger her argument is against sovereign immunity
 The persons right not to be a victim of harmful or intentional touching is as seriously infringed by contacts made with
intent to harm or offend as those contacts made without that intent
 Subjective intent to make contact with victim and actual contact was made, if that contact caused harm or was
offensive then we've got battery

Spectrum of Intent (least to most demanding)

 Proof of intent to act
 The intent to act so as to cause any contact with that person [battery]
 Proof of specific intent
 Proof of intent to cause actual harm or offense that resulted

A Note on Purpose and Knowledge

 Either is sufficient, so neither one is necessary
 Can establish purpose without knowledge and vice versa
 Don’t need to establish both
 If knowledge is used for intent, it's a subjective standard
 Did ∆ actually know they were going to make contact?
 In some jurisdictions, it's sufficient that the ∆ SHOULD HAVE KNOWN

Distinguish between batteries committed with knowledge and negligence

 Is this negligence or an intentional tort?
 Knowledge to a substantial certainty DOES NOT MEAN reasonably foreseeable risk of injury

Hypo: shooting a gun in middle of nowhere if you haven't seen anyone = no torts

Shooting a gun in middle of nowhere but you saw few people = RF harm if careless = negligence

Shooting a gun with thousands of people around: knowledge to a substantial certainty = battery

ASSAULT

Assault involves no contact

Assault Elements
1. ∆ acts
2. Intending to cause π the apprehension of an imminent harmful or offensive contact
 Intent to cause someone the belief that they're about to be touched in a harmful or offensive way (they just have to
believe that you're about to batter them)
3. ∆ causes π to have that apprehension

Beach v. Hancock (p. 1138)

 FACTS: While engaged in an altercation with Beach (plaintiff), Hancock (defendant) stepped into his office and
brought out an unloaded gun, aimed it at Beach who was nearby, and pulled the trigger two times. Beach did not
know that the gun was unloaded. Thereafter, Beach filed an action against Hancock for assault.
 HELD: Jury entered verdict for Beach, appellate court affirmed

Brooker v. Silverthorne (p. 1139)

Vetter v. Morgan (p. 1143)

 Road rage case, Laura Vetter was injured when her van was run off the road by Chad Morgan's car, driven by Dana
Gaither.
 At a red light, when red light changes to green, they start to drive & then swerve into Vetter's lane
 Vetter swerves to avoid them, hits the curb and then her head hits the steering wheel and she falls to the floor
 Trial court granted summary judgement to Morgan bc he wasn't driving
 Appellate Court reversed
 Words can constitute an assault if "together with other acts or circumstances they put the other in reasonable
apprehension of imminent harmful or offensive contact with his person.”
 Ability to flee does not preclude an assault
 257

Transferred Intent

In re White (p. 1149)

 Davis and his brother were washing cars in front of their mom's house when Walter White (a neighbor about a block
away) started resuming an argument with William Tipton (who he had started arguing with about a week ago)
 White got a gun before resuming the argument with Tipton, and when they were arguing he pulled the pistol out
 When Tipton saw pistol pulled out, he hopped on his motorcycle and sped away
 When he was speeding away, he shot at Tipton; the bullet missed and hit Davis in the stomach
 White fled scene. At trial he said he didn't intend to fire the gun, he argues the gun went off when he slipped over a
rock in the street
 Under the doctrine of transferred intent one who intends a battery is liable for that battery when he unexpectedly hits a
stranger instead of the intended victim. W. Prosser, The Law of Torts, 33 (4th ed. 1971). If one intentionally commits
an assault or battery at another and by mistake strikes a third person, he is guilty of an assault and battery of the third
person if “defendant’s intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it
is not essential that the injury be to the one intended.” Morrow v. Flores, 225 S.W.2d 621, 624, Tex. Civ. App. (1949),
rehearing denied 1950.
 Every person is liable for the direct, natural and probable consequence of his acts, and that every one doing an
unlawful act is responsible for all of the consequential results of that act.
 White files for bankruptcy, question is whether tort liability could be absolved
 No because tortious conduct was intentional

"Since White did intend to shoot Tipton, he is deemed to have intentionally shot Davis" intent is transferred across parties

Intentional Tort

 Same victim, different tort

 Hypo: if someone brandishes a gun & believes the gun is unloaded but shoots & hits
someone, that is still a tort even without intent to cause harm
 Across Victims
 Across Torts and Victims
 Hypo: tried to scare one person but scared
 From Things to Persons

If you didn’t form apprehension then no assault (if π

313PM 11/1

DEFENSES

General Notes on Defenses to Battery/Assault

 Comparative responsibility is not an official defense to battery, assault or false imprisonment

 Principal defenses to intentional torts: (1) consent, (2) self-defense and defense of others, (3) defense and recapture of
property

Consent

 Questions about consent: do you make it part of prima facie case or part of defense? Who has what burden?
 If consent is part of prima facie case, π has to prove no consent
 If consent is an affirmative defense, ∆ has to prove consent

 Consent must be freely given (not through force or fraud)

 Thereby state of mind
 Express consent: ["yes you may tackle me" or waiver signed by parents]
 Sometimes consent has to be informed
 Cheating spouse hides fact that they're cheating, has sex with current spouse, current spouse sues after finding
out about affair
 Implied consent [participating in the sport]
 If you behave as if you're consenting such that a reasonable person forms a belief that you're consenting (does not
mean that if π believes there was consent, then consent)
 Reasonable mistakes about consent = consent
 Doctor not liable because although they were mistaken about consent existing, their mistaken belief was
reasonable
 In criminal law, cannot use silence as indicia of consent
 Given rise to affirmative consent (want people to make affirmative statement)

Koffman v. Garnett
 13 year old raised more than 2ft in air & slammed on the turf by football coach (~120lbs heavier than him) in practice
after losing a game & coach was mad; assistant coach acted intending to cause contact, contact was harmful & they
succeeded in making that contact
 PROCEDURAL HISTORY: Trial court dismissed the Koffman's action, held no COA
 Found that the trial court erred in holding that the Koffmans’ second amended motion for judgment was insufficient
as a matter of law to establish a claim for battery
 HELD: no assault because no apprehension, battery was already in progress at time π alleges apprehension occurred.
A jury could reasonably conclude that this tackle was not among those that Koffman consented to
 Participating a particular sport “does not manifest consent to contacts which are prohibited by rules or usages of
the game if such rules or usages are designed to protect the participants and not merely to secure the better
playing of the game as a test of skill.”
 Πs consented only to Andy’s engaging “in a contact sport with other children of like age and experience.
 Not characteristic, coach outweighed player by 100+ lbs, coach seemed to have rendered player defenseless (told
him to stay there & do nothing) and no warning; therefore tackle falls outside scope of consent
 Concurrence/dissent (Kinser)
  Agrees with majority that trial court erred in holding π's motion re: battery was insufficient as a matter of law
 Disagrees on issue of consent; argues that π did consent to this
 In his view, π consented to instruction on proper tackling techniques are aspects of sport (football) that a player
consents to when making decision to participate in sport.

Self-defense and Defense of others

Defense of Property

FALSE IMPRISONMENT
Intentional Infliction of Emotional Distress [IIED]
IIED is a gap filler tort [if the facts that have been pleaded are enough to file some other tort claim (assault, false
imprisonment, etc.) then you cannot claim IIED
 IIED can only be used if no other tort could cover the facts
 Covers conduct that is clearly wrong and deeply problematic so that the state incentivizes people to bring suit to deter
people from doing this type of behavior
 These claims lose far more often than they win (both because it's a gap filler and because there's two different
threshold showings needed in order to make this work: (1) you have to engage in outrageous conduct and (2) the
emotional distress experienced has to be itself substantial (merely experiencing emotional distress by itself wasn't
enough)
 Easier to win because you can prevail on showing that ∆ acted with reckless disregard for plaintiff's emotional well-
being (lower standard than intent because no substantial certainty needed)

IIED protects against threats or conduct that cause a person to anticipate or fear future harm

ELEMENTS OF IIED

1. ∆ must engage in extreme and outrageous conduct

2. ∆ must intend to cause severe emotional distress (or shows reckless disregard)
3. ∆ must cause severe emotional distress

Dickens v. Puryear
 31 y/o John Dickens shared alcohol with Puryear's daughter and had sex with her
 Battery and assault claim was barred by one-year SOL so Dickens argued IIMD
 The parents lure Dickens to a remote location & ambush him, beat him semi-conscious, tied him to farm equipment
(false imprisonment), cut his hair (all batteries), talked about castrating him in front of him (assault) and kill him if he
didn't go home, destroy his phone, pack up his belongings and leave the state (IIED)
 Assault doesn't cover the last threat because there was no threat of imminent bodily harm there; conditional threat
was ongoing
 HOLDING: Reversed summary judgment for defendants based upon the 1 year SOL for battery/assault; remanded for
further proceedings against defendant Earl Puryear
 Re threat of future harm if π did not go home, pack clothes, destroy phone & flee state: "We disagree with the Court
of Appeals’ characterization of this threat. The threat was not one of imminent, or immediate, harm. It was a threat for
the future apparently intended to and which allegedly did inflict serious mental distress; therefore it is actionable, if at
all, as an intentional infliction of mental distress."
 RULE: An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to
another is subject to liability for that emotional harm and, if the emotional harm causes bodily harm, also for the
bodily harm. ****
 IIED addresses nefarious conduct that causes ongoing or future distress or suffering
 Jurors can only compensate individual for the aspect of injury that can be traced to the IIED

Littlefield v. McGuffrey
 Racist landlord changed mind about renting to tenant when discovering she was in an interracial relationship with
interracial child; told tenant he changed locks & her belongings were outside
 Grossly overt racial discrimination figures in the elements of IIED
 Federal housing law claim & tort law claim
 If a winning suit is free to bring, then we're more likely to bring civil rights violations claims in court
 Jury's findings on IIED liability should be upheld if the findings bear a reasonable relation to the evidence deducted at
trial
 Defendant must meet high standard to prove that
 Some states require IIED claims to have physical injury manifesting from the emotional distress, IL is not one of
those states
 Claims of excessive damage awards aren't sustained unless the award is unbelievably excessive or irrational
 If defendant claims that evidence is insufficient to support compensatory or punitive damages, the defendant's burden
of proof must be significant because the jury is better at deciding factual matters
 McGuffey's claim wasn't grounded in IL law so damages were not excesssive
 In emotional distress and racial discrimination claims, evidence of the plaintiff's emotional response to conduct is
relevant in assessing compensatory damages
 Rejects argument that physical manifestations of emotional distress claims must be present
 Π's testimony about emotional well-being was directly relevant to assess compensatory damages (death threat
alone was sufficient)
 Evidence for punitive damages sufficient because of McGuffey's harassment/humiliation campaign under federal
law claim (not state law claim)
 Fair Housing Act's $1K punitive damage cap was lifted in 1988
 "Typical racism" will not usually qualify at outrageous for IIED claims

Hunt v. State

 RULE: A school officer may be liable for intentional infliction of emotional distress in using extreme and
outrageous conduct to detain and question a child under his authority.
 Officer was to come to talk about bullying to 5th graders in detention
 The day after, one student told officer that another student stole money from an autistic student
 The officer confronted both students
 Pritchett's conduct during the search was unreasonable: He knew Hunt didn’t steal the money, interrogated
him anyways, used threats of arrest (sending him to juvenile facility) to make him cry which was
UNREASONABLE

Common law tort claims can be paired with federal claims

 IIED and employment discrimination

Negligent Infliction of Emotional Distress [NIED]

NIED: most common way to characterize: simple negligence subject to special duty rules (because it expands what a
legally cognizable injury was)

[2:44PM]

All jurisdictions

 Circumstances where emotional distress can be basis of a lawsuit (negligence claim)

 Where it's piggybacking off of a physical harm
 Pure emotional distress where there's certain special relationships that impose an obligation on defendant to be
vigilant of [2:47] (mortician, etc.)

Plurality Rules

 Zone of Danger Rule: When a ∆ acts carelessly to subject π to risk of damage of imminent bodily harm, of which that
plaintiff is aware, …… then that ∆ can be held liable to π for emotional distress [2:49-2:50]
 Bystander Rule: Where ∆ carelessly causes a traumatic physical injury to a victim in the presence of the π, that π is
there at the scene of the injuring & is aware that it's occurring & it's a close relative of the victim, then that π can
recover for THEIR emotional distress because of what they witnesses (even though they haven't suffered physical
injury themselves)

Wyman v. Leavitt

 Leavitt (defendant) was blasting rocks onto land adjacent to property of the Wymans (plaintiffs). The blasting caused
rocks to be thrown onto the Wymans’ property. The Wymans sued Leavitt for property damage and for anxiety
suffered by Mrs. Wyman, who feared for the safety of herself and her son. No members of the Wyman family were
physically injured by the blasting. A jury awarded $264 damages for Mrs. Wyman’s mental suffering. Leavitt
appealed.
 Damages for mental suffering: recoverable for negligence when they accompany a physical injury (2) recoverable for
intentional torts even when no physical harm is inflicted IF there's malicious intent OR willfull disregard for other's
rights
 HELD: insufficient absent any physical injury

Robb v. Pennsylvania R.R. Co.

 No contemperaneous physical injury/impact from negligence but suffered emotional harm that later manifested itself
in physical consequences
 Suffered extreme emotional disturbance, lost milk supply & ability to care for her baby, was forced to abandon her
business and paid work as an author
 "Zone of physical risk"
 Rejected impact rule, adopted "zone of danger or zone of injury" test
  Some courts worried that lack of impact rule would open floodgates to a bunch of frivolous tort claims
 [3:15PM] fright produced
 Objective test of whether you're in zone of danger
 Second element about proximate cause that links endangerment to the experience of fright: endangerment that must be
the cause of the fright
 "Physical manifestation of distress" requirement isn't actually requiring a physical injury, but rather as providing
circumstantial evidence of the genuineness of the emotional distress