Torts Outline

1. Principles of tort law

a.
b.
c.
d.
2.

Compensation
Deterrence
Punishment
Fairness

Degrees of Fault
a. Strict Liability recovery without proof of fault
b. Negligence objective reasonable person
c. Reckless
i. Majority use subjective test aware of but disregards a high degree of risk
ii. Minority use objective test should have known of high degree of risk
d. Intentional purpose or knowledge to a substantial certainty that consequences
would result

3. Burdens
a. Burden of pleading legally compensable claim
b. Burden of production more than a scintilla of evidence, not just conclusory
allegations
c. Burden of persuasion preponderance of evidence, more likely than not
4.

Evidence
a. Real documentary
i. Signature disease existence of the disease is a signature of exposure to a
particular agent
b. Direct no inference, but credibility is questionable (e.g. eyewitnesses)

i. Admissibility of expert testimony

1. Fed. R. of Evidence if specialized knowledge would assist

understanding of the issues, expert opinion testimony is allowed from a
witness that is qualified as an expert by knowledge, skill, experience,
training, or education
2. Daubert factors interpretation of a federal rule, state courts employ
another standard or adopt the standard to help trial judge determine
whether the reasoning or methodology is scientifically valid
a. Tested according to the scientific method?
b. Method subjected to peer review and publication?
c. Potential rate of error?
d. General accepted theory?
c. Constructive notice Imputes knowledge; must be visible and apparent + must
exist for a sufficient length of time prior to the accident to permit employees to
discover and remedy it

i. Mode of operation rule

1. The business practice creates a continuous and foreseeable risk of

harm to customers no need to prove actual or constructive notice
a. E.g. self-service = specifically designed to attract customer
attention elsewhere + increases hazard by requiring customers
to obtain items themselves?
b. Business may rebut this presumption by
i. Visible warning signs
1

ii. Regimented and frequent cleaning intervals with notated

proof
ii. Prior history of similar accidents may be relevant when there are
1. Substantially similar circumstances relating to a material issue in the
current case
2. Not outweighed by countervailing policy considerations (e.g. unfair
prejudice, undue delay)
d. Circumstantial
i. Res ipsa loquitor the thing speaks for itself
1. Collapses duty, breach, and actual cause; permits neg to be
inferred by the nature of an accident without evidence of an
act
2. Reasonable person standard still applies plaintiff must provide
evidence from which reasonable persons can say that on the whole it is
more likely that there was negligence
a. Should include all potential defendants to form probability of
negligence and remove from speculative sphere (policy:
fairness?)
b. Not applicable where surrounding facts are discoverable and
provable
3. Elements TEN Type of accident, Exclusive control, Not
contributory
a. 1. Type of accident which ordinarily does not occur in the
absence of neg
b. 2. Caused by an agent or instrumentality within the
exclusive control of the D
i. Actual exclusive control
ii. Constructive control not in actual possession, but no
change occurred after it left the persons possession
iii. Right to control in medical cases
c. 3. Plaintiff was not contributorily negligent
4. Basis of conclusion inference from common sense / general
knowledge OR expert testimony about evidence
5. Effect on litigation
a. 1. Evidence of neg
i. Jury can infer negligence
ii. Burdens of production and persuasion stays with plaintiff
b. 2. Weak rebuttable presumption (CO jurisdiction)
i. Jury must find negligence, unless plausible rebutting
evidence
ii. Burden of production shifts to def, but persuasion stays
with plaintiff
c. 3. Strong rebuttable presumption
i. Jury must find negligence, unless persuaded that not
ii. Burdens of production and persuasion shift to D
ii. Spoliation of evidence where a party destroyed important evidence to
prevent his adversary from gaining access to it; generally a separate claim,
although court might alternatively impose procedural sanctions during the
original trial
2

Negligence Duty
-

A legally recognized relationship obligating a party to conform conduct to a

particular standard of care

Question of law
o

Jury may still determine the factual circumstances giving rise to a duty

o No foreseeability NO duty Courts leave foreseeability determination to

jury unless no reasonable person could differ on the matter = Palsgraf
plaintiff

Eroding distinction between

o Misfeasance active misconduct creating a peril or changing the nature of the
existing risk
o Nonfeasance failure to act when person has a duty to do so

Generally no duty to others

o

Policy = Fairness
Unacceptable possibility of punishing people who try but fail to help another
Individual autonomy variable capacities and motives (e.g. time, bravery)
Critique
Deterrence social goal of protecting lives, to encourage action
Punishment for socially condemned behavior, law is based on morality

- Sources of duty
o
o

o
o
o
o
o
o

NOT merely superior knowledge of a danger absent a duty to protect

Special relationship
Parental /custodial role
Joint venture companions engaged in a common undertaking
Doctor and patient
Land possessors separate from special relationship
Voluntary assumption of care
Statutory duty
K privity
Promise to help and reliance
Creation of an unreasonable risk (DEFAULT!)
Misrepresentation extends to third parties
Furnishing alcohol
Negligent entrustment
Non-negligent creation of risk duty to warn if actor should have known they
created a risk

- Voluntary assumption of care

o
o

One who undertakes to act or takes charge of another who is helpless

Liable for
1) Failure to exercise reasonable care while within charge of the individual;
and
2) Discontinuing aid if doing so leaves the other in a worse position than
when the actor took charge of him

- Duty to warn third parties

4

o
o

Policy ordinarily disfavors imposition of a duty to third parties for failure to disclose
Exceptions:
Special relationship therapist-victim-law enforcement
Where the patient has communicated a serious threat of
physical violence against a reasonably identifiable victim or
victims Duty to make reasonable efforts to communicate the
threat to the victim or victims and a law enforcement agency
Not for
o AIDS
o Suicide
o Property damage (most jurisdictions)
Policy
o Rationale: the protective privilege ends where the public peril
begins societal interest in protecting against physical threats
of violence outweigh the patients right to privacy
o Critique: confidentiality needed for effective treatment (trust,
disclosure, seeking help) + unpredictability of violence
Creation of an unreasonable risk non-disclosure amounts to affirmative
misrepresentation when one party knowingly makes misleading half-truths
represented as the whole and the other party reasonably relies on those
statements to his detriment

Privity limiting the orbit of duty

o
o

Privity doctrine policy decision that there generally must be a direct K

relationship
E.g. tenant who fell down stairs in the common area lacked privity with the electric
company because only his landlord had a K with the company for that part of the
building
Undertaking doctrine exception to privity installation v. maintenance
There may be a duty where an entity has a direct K responsibility to maintain
services for the benefit and protection of a known and identifiable group
(which includes the injured non-contracting party) + the injured party is
injured as a result of direct reliance upon that obligation
Policy considerations
Rationale: Controllable limits placed on liability due to
Large numbers of potential plaintiffs
To ensure cheap /readily procurable services
Critique:
Reduces incentives toward safety
Arbitrary distinction regarding whether inaction is merely denial of a
benefit versus the commission of a wrong

- Intoxication and liability to third persons

o Intoxication

Social host not receiving financial benefit

Duty to the minor, but not expanded to third persons injured by the
intoxicated minor
Rationale:
o Generally unaccustomed to the pressures involved in taking
responsibility
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Far reaching social implications given the wide sweeping class of

social hosts and lack of predictability required to card? Hire a
bartender? Obtain a breathalyzer? Check all guests before they
leave the premises?
Commercial vendor proprietary interest
Duty imposed for both minors and adults,
Rationale: Narrow class, better organized and financially capable to
exercise greater supervision over patrons
Dram Shop Acts statutes in most states impose liability for harm
resulting from serving persons to the point of intoxication or serving an
intoxicated person
o May apply to sports stadiums
o Variable triggers for liability and causation requirements
o Some states require knowledge that person will soon be driving
a vehicle
o E.g. airline that served passenger until drunk was not liable to a
third person who was injured by the passenger while driving
home airline knew the passenger would disembark but did NOT
know whether he was taking public transit, had a connecting
flight, or driving
o

Designated drivers

A person who agrees to act as a designated driver has a duty to third

parties only once performance begins
Modern view = a bare promise may be sufficient to constitute an
undertaking

Negligent entrustment

D creates an unreasonable risk by supplying chattel to another who

then injures a third person
Issue: whether the entrustor knew or should have known that the recipient
would likely use it in a manner involving unreasonable risk of physical harm
to himself and others
Combined negligence of 2+ people!!
Applies to anyone who supplies a chattel for the use of another
o Sellers, lessors, donors, and bailors
o Not merely co-signing a document as guarantor without further
assistance
The entrustor should know risk when the
Other belongs to a class notoriously incompetent to use the
chattel safely
o Youth, inexperience, intoxication, etc.
o E.g. Selling gasoline to a drunk driver and assisting in the
purchase
Entrustor is responsible for encouraging or facilitating
dangerous conduct
o e.g. catch the DJ on the freeway contest for a minor-oriented
radio show

e.g. author of a manual for murders stated he knew and

intended the book to be used to assist in killing people, First
Amendment issue?
Keys in the ignition permitted a third party to acquire chattel and
cause harm
Car owner leaves auto unlocked with the key in the ignition. Thief
steals it and crashes into a third party. Injured party brings claim
against the only solvent party, car owner.
Statutory liability courts split on whether the goal is safety v. avoiding
costly police searches and insurance payments
Factors to find special circumstance where car owner has duty to the
general public
o Area where parked dangerous?
o Time period overnight?
o Size of vehicle capable of inflicting more serious harm?
o Difficulty of operating vehicle not common experience?
o

- Duties of landowners and occupiers Premises Liability Law

o Affirmative act of the possessor reasonable care under the
circumstances

o Condition of the property

Injury on land caused by hazard not owned by possessor no duty
Lacks power to correct the hazard
Unless danger was known (then perhaps duty to warn based on
reasonableness)

Majority foreseeability

Standard of reasonable care for all lawful visitors

o 10 states also include trespassers unless criminal or flagrant
Among the factors to be considered
o Foreseeability and likelihood of harm
o Purpose of entrance
o Circumstances of entrance (time, manner, etc.)
o Expected use of the premises
o Reasonableness of inspection, repair, or warning
o Opportunity and ease of repair or warning
o Burden on possessor of providing protection (i.e. inconvenience
and cost)

Substantial minority status

Traditional view: The possessors intent in extending an invitation to

the visitor determines the visitors status and in turn establishes the
legal duty of care owed
Status may change depending on the specific purpose of the injured
partys action at the moment when harm occurred
Judge decides status because duty is a question of law
Licensee permissive entrance onto anothers land
o Includes intangible benefits such as human intercourse

Duty to warn entrant must take the property as the possessor

himself does; not entitled to expect any additional preparations
other than what the possessor would do for his own safety
Invitee permissive entrance with an invitation that implies a
warranty of safety deriving from the prospect of pecuniary gain
o Types
Business visitors expectation of material benefit from
the visit
Public invitations invitation extended to general public v.
limited class
o Duty to inspect and make safe the premises
Must exercise reasonable care to protect against dangers
that the invitee likely would fail to protect against but are
known to the possessor or would be discovered upon
reasonable inspection
Expenses and efforts beyond reasonableness must be
directly tied to commercial interest in the visit
Elements
Unreasonable risk known or would be by
reasonable inspection
Should expect invitee will fail to protect himself
against it
Failure to exercise reasonable care to protect
against risk
Trespasser any non-permissive entrance onto anothers land
o E.g. walking in a city park after closing hours
o There is a duty to not willfully or wantonly harm the trespasser
o Generally no affirmative duty to warn UNLESS
Possessor knows that people frequently intrude upon a
limited area of the land and may encounter a hidden
danger
Evidence of frequent trespass (e.g. footprints)?
Evidence that some danger was known and disregarded?
Known trespasser
Child trespasser
Attractive nuisance doctrine broadly covers injuries to
children who were unaware, because of their immaturity, of
risks associated with the property
Open and obvious danger mention in comparative/contributory
negligence
o Plaintiffs neg in failing to take appropriate precautions for an obvious
danger
o BUT a duty exists if the land possessor could foresee danger to
entrant
Recreation statutes in almost all states limit owner liability on
recreationally used land to prevent suits involving natural dangers
o

Entrant approaching an owners front door Statutes generally hold the

entrant to be a licensee unless there is some visible signal to the entrant
that indicates otherwise

o Landlord-Tenant Law

Traditionally, landlord was liable only for injuries attributable to

Hidden danger in the premises of which the landlord but not the tenant is
aware
Premises leased for public use
Premises retained under the landlords control (e.g. common stairways)
Premises negligently repaired by the landlord
Today, housing codes and statutory provisions impose expanded duty
Criminal activity landlord has duty to take reasonable protective measures
to mitigate the risk of intruders, not an insurer of tenant safety
Policy for imposing liability on landlord financial inability and lack of incentive
for tenant versus the pecuniary benefit and control of the landlord

- Parental Immunity
Parents may still have immunity for negligence suits by children; the standard
varies by jurisdiction
Complete immunity bars neg suit; unfettered parental discretion given
differing personal backgrounds and beliefs
Palpably unreasonable acknowledges parents prerogative and duty to
exercise authority over child; immunity for parental conduct that is within the
exercise of ordinary discretion or parental authority
Reasonable parent whether parental conduct comported with that of a
reasonable and prudent parent in a similar situation
o Policy
Disturb domestic tranquility BUT injury to child more than law suit disrupts the
tranquility
Danger of fraud and collusion BUT present in all law suits
Depletes family resources BUT generally suit is not brought without available
insurance coverage, so immunity could actually place a financial burden on the
family
Interferes with parental care, discipline, and control!!!!
o Insurance subrogation clause allows insurance company to litigate suit so as not
to pay damages
o Fetal injury courts vary on whether or not they treat as dif or the equivalent of a
child already born
Unique situation still biologically joined to the injured party; collateral social
impact
Government actor Take note of potential immunity issue here but place in defenses
section
Neg infliction of emotional distress non-physical interests harmed by
unintended interference
o Physical impact
All courts permit recovery
Does not encompass physical contact to disease
o

o Direct
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Risk of physical harm absent physical impact majority of courts

permit recovery
Zone of danger test allows recovery for emotional injury for plaintiffs
who, by Ds neg conduct, either sustain a physical impact or who are put in the
immediate risk of physical harm
1. Within zone of danger
o = risk created by defendants neg conduct
o Foreseeability / what risks could be expected
o Palsgraf plaintiff!!
2. Reasonable fear for safety
o Measured by an ordinarily sensitive person
o No compensation for hypersensitive P /eggshell psyche
3. Severe emotional distress with physical manifestations
o E.g. potential physical manifestations seeking professional help,
medical testimony regarding mental health, hospitalization, suicidal
preoccupations, nervous breakdown, miscarriage, nausea, anxiety,
weight loss/gain
EXCEPTIONS (majority)
Emotional distress implied even without proof of physical impact
for
o Negligent mishandling of body parts or corpse
o Negligent transmission of death of a loved one
Rationale: exceptional vulnerability of the family of recent decedents
makes emotional distress highly probable and removes concern of
fraudulent claims
Uncertain how much courts may extend these, but there are cases where
court included in this category false positive communication of AIDS
and sterility
Diseases
Physical manifestations of disease may recover
HIV majority require proof that the dirty needle actually contained the
virus; a few courts allow recovery for the window of time between event
and negative test results

Window Rule Pre-impact Suffering

Recovery for emotional distress of victim during the period of awareness

before death or serious bodily injury
Period of awareness can be very short
Must provide fact-specific evidence of suffering (e.g. skid marks, seated
by wing of plane that breaks off)
Death Estate may sue under survival statutes for claims that could
have been brought by decedent but for his death
o Policy regarding estates
For: Illogical to deny recovery when feared harm came to pass
Against: Persons receiving payment did not suffer that distress

Indirect

Bystander absent either physical impact or risk of physical

harm
Often allowed / evolving area of liability
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Dillon/Portee test
Distress suffered by a close relative who witnesses the physical injury
Factors or elements depending on jurisdiction:
o Relation close relative
o Temporal contemporaneously observes
o Gravity death or serious injury of a neg victim
o Proximity near the scene of the accident
Many states do not require all factors to be proven
Child sexual abuse parents might still recover because the
circumstances sufficiently assure distress was severe and genuine
Unmarried couples duration of relationship, degree of mutual
dependence and emotional reliance, extent and quality of shared
experience, members of same household?
Injury to baby at hospital Standard for categorizing parents as direct
victims or only interested bystanders; If injury occurs during labor and
delivery, mother has action regardless of whether conscious or not
Damage to property most states deny recovery
Pets may be considered personal property and thereby denied recovery,
but several states have enacted statutes against this antipathy

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Negligence Breach
-

Question of fact jury makes the assessment

- Measuring the standard of care

o BPL Economic Assessment

N = B < PL Negligence is proven when the cost of preventative is

less than the probability of injury multiplied by the degree of loss
Burden of prevention / adequate precautions
Probability / risk of injury
Loss / gravity of injury
Used primarily for property damage and weighing business judgments, but
may also be factored into loss of life/limb valuations
Policy critique: 1) Lack of deterrence and 2) ignores morality Cost-benefit
formula allows potential tortfeasors to ignore known risks

o Reasonable person

Degree of care that would be exercised by a RP of ordinary prudence

under like circumstances
Normal standard of community behavior what ought to be done
External and objective based on conduct without regard to state of
mind
Exceptions
Common carriers / public transit
o Duty of utmost care that human prudence and foresight can suggest
o Rationale: because person is subject to anothers control
o Critique: subjectivity is inconsistent with the fundamental concept of
neg
Dangerous instrumentality
o Duty of highest care
o E.g. safekeeping a handgun
Superior attributes
o Asymmetrical liability = RP + actors subjectively superior qualities
o E.g. Medical malpractice or Shaun White
Children
o Reasonable child of similar capacity with like age, intelligence, and
experience
o Unless engaged in adult activity argue about what activities should
be categorized as adult
o Culture Foreign child without conception of another way of life?
Emergency (trend NO)
o Required to exhibit only honest exercise of judgment
o Increasing number of states apply RP standard because the standard
flexibly factors in emergency situations in light of circumstances
Physical disability
o RP under like disability
o No liability if not foreseeable + wholly beyond the actors control
o E.g. stroke that impairs consciousness does not excuse liability
because only impaired
NOT insanity or mental deficiency
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Characterize the disability as physical rather than mental!!! Any

scientific evidence that provides proof of physical element to
disability?
o Policy:
Vague and unsatisfactory character of evidence slippery slope
of excusing liability and ability to feign illness
Mental defectives live in this world and so should pay for damage
done
Encourage caretakers to closely monitor the defective
o Critique:
Lack of personal and general deterrence reality that the actor
cannot conform conduct to the standard of care and so liability
does not impact future actions
Vicarious liability for caretakers already extremely expensive, so
this standard is unduly burdensome on caretakers
NOT inexperience for dangerous activities
o Lack of competence does not excuse liability; risk must be borne by
the beginner rather than innocent victims
NOT gender
o Most often argued in sexual harassment cases
o Policy: inequitable v. permissive of discrimination
o

Custom

Aids in formulation of reasonableness via the general

expectation of society
o Note: reasonableness is still considered under ALL circumstances
o No need for specific notice to the particular defendant actor may be
charged with knowledge or neg ignorance

Applicability

1. Fairly well-defined and in the same field

2. Reasonable what ought to be, not always in line with the
general average
o 3. Purpose of the custom is to avoid like injuries
Policy: 1) has a direct bearing on feasibility; 2) reflects the judgment,
experience, and conduct of many; and 3) ensures the court decision
would not impose great social costs to the industry
Non-custom as a defense Ps suggested safer technique is not common
knowledge
Expert witnesses may have more general qualifications, not necessarily
employed within the precise industry whose practices are being
challenged purpose is to prevent letting the industry indirectly set its
own standards of reasonableness
o
o

o Statutes

Criminal liability does not determine civil liability

Applicability CIIK

Is the purpose of the statute is to protect

o CLASS a class of persons, of which the plaintiff is one
o INTEREST the particular interest being invaded
o INJURY against the kind of harm that resulted
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RISK CREATED against the particular hazard that caused the

harm; based on foreseeability of the risk created by the
defendants conduct
Still rejected if obscure, unknown, outdated, or arbitrary such that it
would be inequitable to adopt it as a standard of reasonable care
o

Effect on litigation: three distinct jurisdictions

Lack

MAJORITY negligence per say: if applicable, violation of the statutory

definition of reasonable conduct is per se negligence unless some limited
excuse applies
o Exceptions: (judge decides)
Emergency
Incapacity or inability to comply
Ignorance of an instantaneous fact causing violation
Compliance would be more dangerous
MINORITY evidence of negligence: neg is a permissive inference and the
statutory standard is considered alongside other circumstances of the
case
3 JURISDICTIONS rebuttable presumption: neg is presumed but violator
may rebut by demonstrating they acted as a reasonable person
of license generally not considered proof of unreasonable conduct
Rationale: 1) not the cause of injury and 2) statutory purpose for licensing
is to protect against actions by unskilled persons, which necessarily
entails proof of negligence
Possible exception: NY legislative enactment made the unauthorized
practice of medicine prima facie evidence of negligence in personal injury
cases

- Medical Malpractice
o

Failure to do something and unreasonable under the circumstances

Higher standard of care but tempered by measuring reasonableness to others in the
same medical field and, depending on the jurisdiction, perhaps similar locality.
National standard is more likely to be invoked if board-certified.

o Expert testimony

Admissibility any doctor with knowledge of or familiarity with the

procedure, acquired through experience, observation, association, or
education, is competent to testify
Res ipsa
Medical expert testifies that such injuries do not occur in the absence of
neg
Plaintiff shows that all the potential causes of injury were under the
management and control of the defendants
Defendants possessed greater access to knowledge about the cause of
injury than P
Residents held to same degree of care as physicians (majority)
If no special knowledge or expertise is required, reasonable person standard applies
If there are two schools of thought about reasonable procedures physician may
apply either one so long as it is recognized by a reputable number of medical
experts even if in the minority

o
o
o

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- Vicarious Liability
o

Theory of recovery based on relationship to the tortious actor, regardless of

reasonableness or whether they should have known
NO negligence elements
Critique should require a foreseeable and avoidable act, implying a choice
(Holmes)

o Product liability
o Parents

Not usually vicariously liable for child unless

Failure to exercise control; or
Permitted child to do something beyond the childs ability

Respondeat Superior (Neg or Int)

Employers are held liable for the negligent acts of their employees if
the employee was acting within the scope of employment
Elements:
1. Negligent Act
2. Employee
o Employee or independent contractor? SPASTIC
SUPERVISION extent to which employer directs their actions?
PAYMENT method of payment? Lump sum or payroll?
ACTIVITY distinct activity separate from employer?
SKILL level required of the individual? Specialized training?
TIME length of time hired for? Concrete end date?
INSTRUMENTALITIES who supplies them? Brought own tools?
CUSTOM custom of the industry as to supervision?
o If a contractor employer is not generally liable, unless
Peculiar risk
Work involves inherently dangerous activity or peculiar risk
Test: contractor failed to take appropriate precautions in light
of the risk?
E.g. hazardous waste disposal
Non-delegable duty of care
A party will be held vicariously liable when it possesses
substantial bargaining power in hiring employees to ensure
competence while the injured party client cannot and does
not realistically have the ability to negotiate and bargain on
the open market for another provider
E.g. city maintains the roads
E.g. personnel at a hospital
Apparent agency
A principal may be liable to a third party for acts of its
agent which are within the agents apparent authority
1. Purported principal created the objective
appearance of an agency relationship
o Words or actions (knowingly tolerates or permits)
Posted signs stating not an employee?
Required to sign a disclaiming form?
15

2. Detrimental reliance on that representation by a

third party
3. Within the scope of agents apparent authority
3. Scope of employmentemployers conduct must
o A) General kind of work employed to perform
o B) Within special boundaries of employment
Geographic area?
Within the hours of employment?
o C) In part to serve the interests of the employer
Employer tacitly sanctioned the act?
Company policies?
Assault not within scope of employment UNLESS injury arose out of jobrelated stimulus
Hiring practices Analyzed under negligence
E.g. bartender punched a customer unreasonable under the
circumstances because knowledge of criminal record + hired for position
where he would be dealing with the public in a volatile atmosphere
Indemnity Employer can seek to recover loss from the employee
Policy
Fairness
o Preventing future injuries
o Assuring compensation to victims
o Equitably spreading the losses
Deterrence
o Incentive to police ones workforce
o Incentive to consider alternatives such as mechanization of tasks

16

Negligence Causation
-

Actual cause
o
o
o
o

Basic connection between conduct and injury

Burden of proof on plaintiff
Preponderance of evidence standard more likely than not Ds conduct caused Ps
injury
But-for Cause
Single Defendant
Multiple necessary conditions
Multiple competing potential causes
Joint and Several Liability
Joint tortfeasors are each wholly responsible for Ps injury
P may go after only one of them to satisfy judgment
Entitled to contributions from each other
Multiple independent actors
Concurrent sufficient acts Substantial Contribution
Indep actors + either alone sufficient to cause harm + both caused harm
If NOT substantial cause is too insignificant to subject D to liability
Alternative Liability
Indep neg acts + only one caused Ps harm + impossible to prove which
was cause-in-fact
Small number of tortfeasors
Burden shifts to defendants to prove who was at fault
Rationale for forcing Ds to exonerate themselves
o All breached a duty to P
o Likelihood that each may have caused injury is relatively high
o Ds are ordinarily in a better position to determine who caused injury
o Should not exonerate Ds to Ps detriment
Market Share Liability
P was injured by a fungible product + can show that all Ds produced the
defective product BUT the precise cause-in-fact manufacturer is
unascertainable all Ds held liable
Elements
o 1. Clear causal relation between product and harm
o 2. P unable to identify manufacturers
o 3. Fungible product
Exculpation:
o Proof that D was not a participant in the common group activity
o NOT by showing his product did not cause the plaintiffs injury
Liability in proportion to each manufacturers market share at time of
injury
Fact finder determines applicable market, may be
o Narrowly defined to increase likelihood of fault (e.g. specific
pharmacy)
o Nationally defined corresponds with overall risk of injury created to
the public
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Asbestos problem with fungibility; asbestos = generic name for a family

of minerals; several varieties of asbestos fibers + dif products containing
asbestos create dif risks
Childhood vaccines not held liable because of public policy goals
Multiple cooperative actors
Concert of action parallel conduct
Each defendant directly participated OR tacitly assisted and encouraged
one another in the tortious conduct
Generally
o Small number of actors
o Short time span
E.g. Several men fire guns in Ps direction all are liable despite proof
that Ds bullet could not have caused the injury because D knew the
others were acting tortuously and encouraged them by doing the same
Enterprise liability
Industry-wide standard and cooperation in defective design
Generally
o Small number of producers
o Not an area of close gov regulation
Post hoc, ergo propter hoc
Rebuttable presumption of causation when a neg act increases the risk of a
particular type of accident and such accident occurs, D must come forward
with evidence negating causation
Three factors: 1. Circumstantial evidence; 2. Relative ability of the parties to
obtain evidence; and 3. Reason to have dif concerns about error favoring P
over D
Medical Malpractice
Enhanced risk where plaintiff shows precursors or early symptoms of the
disease
Loss of opportunity physicians neg diminishes likelihood of achieving a
more favorable medical outcome; usually limited to malpractice suits involving
death

- Proximate cause

o Legal cause / scope of liability

o Analyze unexpected events, harms, persons
o Majority
Threshold questions both the plaintiff and type of harm must
be foreseeable

Look at defendants conduct

1. Plaintiff Who was within the scope of the risk created by defendants
conduct?
o Danger invites rescue exception
If D imperiled life of a third party and Ps injury resulted from
trying to help
No time to reflect and weigh
Natural and probable consequence of the danger
o Not within scope no duty = Palsgraf plaintiff
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If yes to both, D is liable for Ps injuries including

2. Harm What type of harm could you expect to occur due to

defendants conduct?
Eggshell Plaintiff
o D must take his P as he finds him and compensate for harm
extraordinary harm brought on by despite pre-existing dormant
condition
Emotional distress
If ordinarily sensitive person standard has been met
P might recover greater damages than those foreseeable
because of preexisting physical or mental conditions
o Rationale P has right to live his life as he chooses and would not
have experienced that injury without Ds conduct
o Defenses:
Injury not exacerbated by Ds conduct
P wouldve experienced injury later anyway; injury only
precipitated onset

Secondary harm occurring concurrently or after Ds conduct

D may be liable for further injuries that would have been avoided absent
Ds neg acts
Within scope of the risk?
o NO Superseding causes unforeseeable bizarre events which
cut off liability
Plaintiffs culpable conduct can likely be considered a superseding
cause (Supreme Court holding: no inconsistency with comparative
fault here, but limited to admiralty cases)
o YES Intervening causes foreseeable and dont cut off liability
o YES Medical necessity rule makes conduct foreseeable as a
matter of law
Public policy matter necessary steps in securing medical
services as a consequence of Ds conduct
Normal efforts of third persons in rendering aid which the injured
party reasonably requires even if the helper acts negligently
DO NOT HAVE TO FORESEE
Manner of how injury occurs even if highly unusual
Exact consequences even if only small risk of great devastation
o If actor engages in conduct which entails a large risk of small damage
and a small risk of other greater damage from the same forces and to
the same class of persons not relieved of responsibility for greater
damage
Relatives of plaintiff who may bring suit

o Minority

If there is foreseeability as to the neg conduct, as analyzed in breach, then

liability extends to direct consequences regardless of whether those
consequences were foreseeable
Policy: Unreasonable risky conduct creates a duty to the world
Critique: lack of deterrence because people cannot conform conduct to
unforeseeable risks
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20

Negligence Defenses
- PLAINTIFF ALSO CAUSED INJURY
o
o

Affirmative defense even if D was negligent, P is also responsible for neglecting

some duty to himself
Parallels basic neg elements except based on Ps duty to himself

o Contributory Negligence total bar to recovery

Only a few states

Limitations that bar D from invoking this defense
Statutory No Duty Rules
o Where purpose is to protect some group against its own liability to
protect itself
o E.g. statute requiring bus drivers to instruct students in crossing
street, flash red lights, wait until safely crossed to move purpose
understood as protecting school children from their own neg and
allowing this defense would thwart leg purpose
Reckless or intentional D
o Where Ds misconduct was more serious; may assert contributory
recklessness or contributory willful misconduct though
Last clear chance
o Where P behaved carelessly for his own safety and got into a
dangerous situation BUT D had and failed to use the last clear chance
to avoid injury to P
o Applies where either
Helpless peril
P got into a position of helpless peril and was no longer able
to take protective steps
D knew or should have known of Ps plight while still able to
avoid the harm by exercise of due care
Oblivious to danger
P could have, if behaving reasonably, become aware and
avoided harm up to the last moment
D generally required to have actual knowledge of Ps danger
Refusal to impute vicarious contrib neg
o Where persons related to P would be held vicariously liable, but
imputing neg to defeat the action would leave innocent victims
uncompensated
Jury nullification
o Where judge finds that reasonable persons could differ as to the
alleged defense
o Juries would be more likely to reject that defense and presumably
apply a comparative negligence standard by proportionally reducing
the damage amount rather than bar all recovery to P

o Comparative negligence allocates % of fault which

determines recovery

Jurisdictions
About a dozen states Pure
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Allocation of fault based on %

P 90% at fault then may recover 10% from D, while D may recover
90% from P
The rest are split between two variants that allow recovery based on % of
fault only if Ps fault is not as great as or no greater than Ds fault
o Not as great as 50% P fault bars recovery Equal fault bar
o No greater than 51% P fault bars recovery Greater fault bar
o
o

Fault
Determined by examining how responsible each party is for causing the
injury, not the amount of damage caused (e.g. car swerves and causes a
pile-up the car did not directly cause the damage but is most at fault)
Includes unreasonable
o Assumption of risk not constituting an enforceable express consent
o Failure to avoid injury or mitigate damages
o Product liability Misuse of a product for which D otherwise would be
liable
Types of comparative apportionment:
Neg = neg + reck
Fault = neg + reck + int
Responsibility = neg + reck + int + SL (minority but quickly moving to
majority)
Apportionment between Defendants
Neg D might be held more at fault than the Int D D who is neg because
of failure to protect P from the specific risk of an intentional tort is jointly
and severally liable for the intentional tortfeasors share of fault
Contribution employs a comparative notion
Indemnity all-or-nothing recovery (e.g. Respondeat superior)
P engaged in criminal conduct when injured policy debate
For allowing P to recover:
o Ps conduct does not impact his legally protected interests
o Policy concerns against Ps conduct are best effectuated through
penal law
Against recovery:
o Lack of proximate cause for Ps claim against D
o Ps violation directly resulted in the injuries for which he wants
money
Medical cases Ps neg in originally injuring himself is irrelevant to doctors
liability for neg care
Rescuers Most courts have removed special protection for rescuers who
were not barred from recovery unless rash or reckless because the social
value and altruistic motivations can be taken into account with determining
negligence and comparative responsibility)
Drunk driver kills himself estate may bring for decedent drunk driver
against the licensed vendor who supplied the alcohol; some states also permit
neg entrustment action against persons who knowingly loan the drunk driver a
car

- PLAINTIFF EXACERBATED CONSEQUENCES

o Avoidable Consequences
22

P does not contribute to or cause original injury but exacerbates it

Partial defense P not barred from recovery but it reduces damages
Duty to mitigate damages!
Recognized Risk Exception P has no duty to undergo treatments involving
a recognized risk (does not have to be significant or even probable) Issue
with religious beliefs!!
Failure to use safety equipment (e.g. safety belt, helmet)
Anticipatory avoidable consequences
Statutory violation as well leg vary in imposing civil liability
o Violation inadmissible (to encourage manufacturers to design
vehicles safer)
o Allowed small % reduction (to not prohibit recovery if majority
comparative fault)
o Allow full reduction in recoverable damages

- Assumption of Risk
o

Lead with the elements in analysis

D must prove AR by a preponderance of the evidence
Must be VOLUNTARY Choice of evils OR warning of risk without reasonable
alternative = insuff

o Express AR

When the parties expressly agree in advance, in writing (holdharmless agreement) or orally, to release D from his legal duty toward
P and any prospective liability
Continues as an absolute defense even in comparative fault jurisdictions
because based on express manifestation of consent through K
1. Express and unambiguous?
Specifically related to the neg causing injury
Courts generally hold that gross neg and reck can are non-disclaimable
2. Does the agreement violate public policy?
Trend void against public policy
Factors determining policy violation:
o Type of business generally thought suitable for public regulation
o Performing services of great importance to the public, often practical
necessity
o Holds himself out to the public
Within established standards?
Business-invitee law?
o Bargaining power advantage resulting from essential nature of the
service
o Standardized adhesion K
No alternative reasonable option for purchaser to gain protection
from neg
Informed only upon arrival after invested in trip
o Purchaser placed under sellers control as a result of the transaction
Plaintiff lacked the knowledge, experience, and authority
D had sole ability to properly maintain and inspect premises, train
employees, and guard against neg
Also underlying concern signee doesnt understand what they are
assuming the risks of and have a default presumption of safety and trust
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that D wont act neg has D given a clear example within the K to dispel
these concerns?

o Implied AR generally

No express language or agreement indicates the intentions or understandings

of the parties
Subjective tests based on Ps awareness of risks

o Primary Implied

P knowingly encounters and impliedly assumes risks inherent in

activity
NO BREACH OF DUTY
Issue: whether Ds legal duty encompasses the risk encountered by the
P?
Not an affirmative defense
Analyze the particular circumstances:
Inherent risks of activity injury resulted from the very hazard that
was invited and foreseen v. outside realm of anticipation?
Generally accepted customs within normal practice of the activity?
Awareness of risks prior experience or time to acclimate and become
aware of risks?
Rebuttal for P trap for the unwary
Obscure or unobserved danger
Too perilous to be endured
o Number of similar accidents v. mass of total participants
o Some quota of danger is permissible
Participants in sports volenti non fit injuria
One who takes part in such a sport accepts the dangers that inhere in it
so far as they are obvious and necessary
Jurisdictions may modify either
o Duty of care liability only for intentional or reckless injury
o Reasonableness standard adapted to circumstances
Spectators limited duty rule for stadium, not likely liable unless injury
resulted from a neg defective screen or willful/wanton conduct

o Secondary Implied

P knowingly encounters risks created by Ds neg

Elements
1. Aware of the dangerous condition
2. Appreciates the magnitude of the risk
3. Voluntarily encounters it
Whether the risk was out of all proportion to the advantage which he is seeking
to gain?
Jurisdictional split
1. Abolished AR
2. Complete bar to recovery maintained it as a separate defense
3. Merge with comparative neg (most likely majority)
Dif from contributory negligence not objective based on exercise of free will

- Government Immunity
o Discretionary acts decisions involving the exercise of reasoned judgment,
balancing of costs and benefits Completely immune
24

o Ministerial acts

conduct requiring adherence to a mandatory policy with a

compulsory result Immunity abrogated; NOTE: merely remove issue of immunity,
do not necessarily make gov action tortious

o Sources of liability

Proprietary action gov displaced or supplemented traditionally private

enterprises (e.g. hospitals) although there has been a shift away from this
distinction
Providing services and facilities for the direct public use (e.g.
public highways)

NO duty to protect the general public from external hazards

o EXCEPTIONS
Special relationship undertaking!!
o

Active use of private citizens for help

Calling upon + utilizing assistance Duty created to the helper

E.g. FBI flyer asking citizens to provide info to police leading to capture of
criminal creates a duty of protection if the FBI uses that help when
rendered

Custodial relationship

Aff duty specifically to plaintiff, not general duty to society (orbit of duty)
Elements (UKDR)
o 1. Undertaking Gov assumed aff duty to plaintiff by promise or
action
o 2. Knowledge Gov agents knew that inaction could lead to harm
o 3. Direct contact Between agents and plaintiff / not to a 3 rd party
o 4. Reliance Injury results from justifiable reliance on gov
undertaking
E.g. child hurt during mandatory visit to father duty
o Undertaking agents assurance to intervene
o Knowledge violent history + protective order from court granted
broad discretion to act
o Direct contact wife made repeated efforts to initiate intervention
o Reliance legal visitation rights
E.g. public transit without night guards no duty

E.g. schools
o Duty to reasonably supervise school premises
o May occur off school property, but must still be considered on
premises
E.g. truant student injured blocks away from campus within duty
E.g. student injured after leaving bus stop duty already
terminated
o No claim for educational malfeasance for not teaching kids well

Statutory violation ONLY IF leg intended to benefit individual

personal interests

NOT to benefit all members of the community through a well-ordered

government
Clear statutory language imposing a burden?
Absent clear leg intent Court will not otherwise impute an obligation to
the personal interest of any individual
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Policy
No general duty of police protection
Infringes upon separation of powers province of legislative
determinations; should not foist judicial judgments upon another
institution acting within their const capacity
Institutional competency acknowledge difficult duties imposed upon
police (limited resources and inherent risk) so should defer to their
expertise and judgments on risk
Would inevitably determine how limited police resources should be
allocated without predictable limits to liability
Critique
Compensation for personal injury + pay taxes to receive protection so
should be liable
Non-delegable duty

Damages
-

Compensatory Damages
o
o

To put the P in the position he would have been in had the injury not
occurred
Decision-makers
Jury question of fact
Must discount to present value if P invests money prudently to earn
interest sufficient to support future whole payout; interest is taxable
Trial judge may grant a new trial or use remittitur or additur to change a
damage award if persuaded the verdict is unacceptable as a matter of law
Remittitur conditionally grants a new trial unless P consents to
reduction of award
Additur conditionally grants a new trial unless D consents to upward
adjustment of award
Appellate standard of review must be so out of line with reason that it shocks
the conscience and necessarily implies passion and prejudice in the decision
Taxation determined by Congress
Physical injury not taxable
Emotional injury taxable
Statutory caps
Intangible losses / pain and suffering recent trend to strike them down on
const challenge of separation of powers for encroaching on fundamental
judicial prerogative of assessing jury determination)
Total award for certain types of cases in a few states (medical malpractice +
gov units)

o Pecuniary economic loss

Past pecuniary losses = from time of accident to time of trial

Medical expenses doctors, hospitals, drugs
Earnings
Future = life expectancy standardized table including factors like gender and
smoking habit
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Analysis to determine the # years P would have lived and worked absent
injury
o 1. Average life expectancy tables and average work career of
employee in Ps field
o 2. Evidence why Ps particular lifestyle/career varies from the norm
Medical e.g. drug costs, how long course of treatment is expected,
additional surgery
Income
o Lost future earnings if working at time of injury Inflation?
Promotion?
o Lost earnings capacity if unemployed based on prior
employment?
o Loss of earnings opportunity if special opportunity for great
financial success P must show had already had access to it and
would have succeeded
o Offset courts often declare the lost fringe benefits roughly equal to
decrease in work-related expenses

o Non-pecuniary intangible losses

SOME LEVEL OF AWARENESS REQUIRED FOR RECOVERY

Rationale rests on legal fiction that money damages can compensate
for a victims injury, so without awareness it lacks solace, meaning, or
utility to the injured person
Paradox the worse a person is injured, the less likely they may be able
to recover

Pre-impact suffering
Pain and Suffering
Infliction of a negative experience

Loss of enjoyment of life

Physical and emotional stress caused by injury

Subjective
Analyze:
o Physical pain e.g. severity of injury, length of recovery time,
potential long-term consequences
o Emotional and psychological trauma e.g. scar on face causing
insecurity, shock, grief
Loss of a positive experience
Objective, but with an element of subjectivity with using proxies to
analyze enjoyment
Emotionally based, not monetary expenses of activity
The person really loved to do XX and now can no longer do XX because
of D

Loss of consortium and companionship

- Vehicles into court for estate, loved ones, and beneficiaries

o

As a public policy matter, courts create duty to allow recovery

o Relationship losses Both pecuniary and intangible losses

Loss of consortium injury to marital interest

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Deprivation of services, pecuniary! virtually all states allow recovery for

physical loss
Emotional harm to relationship some states allow recovery for
intangible aspects of relationship
Loss of companionship most states allow / parent suit for severe injury or
death to child
Loss of parental society a few states allow / minors who are dependent on
parent (economic + filial need for closeness, guidance, and nurture)

o Decedent Plaintiff

Statutes enacted to reverse common law refusal of a claim

Claims often made in conjunction in the event that Ds wrongful conduct
resulted in the injured partys death
Survival action
Brought by the estate
Based on injury to the decedent between the time of injury until death
Permits recovery for the entire cause of action decedent would have had
if he had survived
Recovery:
o Past lost income and medical expenses
o Loss of enjoyment of life
o Loss of life in some jurisdictions; to compensate a decedent for the
loss of value he would have placed upon his own life; misaligned with
the purpose of compensatory damages?
Wrongful death
Brought by the beneficiaries as determined by the states wrongful death
statute
Based on injury to the beneficiaries (lost company and support from
decedents death)
Many states have eliminated or broadened the cap on these awards
Grief expert testimony? for impact of wrongful death on the family
Recovery now includes pecuniary as well as non-pecuniary and punitive
damages (in some states, unless D dies before trial)

- Medical Malpractice
o

Enhanced risk Jurisdictions vary windows of probability required

Majority More likely than not

Minority 0-20% chance of injury materializing
Recovery may be impacted by a smaller % window so could benefit plaintiff to
wait
Two disease rule may recover only when the more serious disease occurs;
some allow emotional harm recovery for fear of future disease

Loss of opportunity

Proportional damages approach measured as the % probability by which Ds

conduct diminished Ps opportunity to achieve a more favorable outcome
Purpose to fairly allocate costs and risks of injury and mitigate the all or
nothing rule
E.g. $100,000 leg lost where the chance of keeping the leg reduced from
70% to 50%... loss of opportunity = 20% x 100,00 compensation would
be $20,000
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Most states grant full recovery for cases involving greater than 50% loss

- Joint and Several Liability

o
o
o
o

Varying statutory changes in 40 states recently

If abolished, P must sue all potential causes to receive full compensation because
individual Ds are not liable past their share of fault
P might sue them together or separately and recover the full extent of damages
against either one
Contribution Ds may assert a contribution claim against the other D in proportion
to their fault
Comparative fault based on proportional % cause (no longer pro rata equal
shares)
Insolvent D places the whole burden of payment on a single D because
cannot seek contribution

- Collateral Source Rule

o
o
o

Flag when you see gifts of money, charitable offering, insurance coverage
Rule: P in personal injury action may still recover full damages even if they received
compensation for their injuries from a collateral source
Rationale:
D should not recover windfall from the thrift and foresight of P
To encourage people to obtain insurance
Money partly goes to attorneys so P would not be fully compensated
Subrogation clause standard in insurance policies which allows the company to
litigate suit

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ONLY FOR INTENTIONAL TORTS

-

Nominal symbolic award allowed without any proof of harm; only for intentional harm
Punitive exceeds the amount necessary to replace what plaintiff lost
o
o

Purposes punishment + deterrence

Limiting factors
Standard of proof = clear and convincing evidence
Bifurcated trial to delay inclusion of Ds financial status coming into play
Wealth of a D cannot justify an otherwise unconst punitive award
Gore reasonableness and proportionality standard
Restricted by Due Process (Gore guideposts)
1. Degree of reprehensibility of the Ds conduct
Factors:
o Physical harm, not economic
o Recidivist repeat misconduct must be shown to replicate prior
transgressions, but may be punished more severely because more
reprehensible than an isolated incident
o *** Intentional malice, trickery, deceit ***
o Indifference or reckless disregard of others
o Financial vulnerability of the victim
2. In practice, damages greater than a single-digit ratio between the harm and
damage award likely will not be found reasonable / instructive, though not
binding
3. Similar damage award to comparable cases of civil liability
Recklessness
Duality where some courts may expand the doctrine to recklessness (e.g.
drunk driving)
Rationale:
Def of reckless conscious disregard insinuates choice
To fill the gap where criminal law has failed
Insurance
Coverage limits may affect companys willingness to settle a case
Courts impose duty to settle within the policy limits whenever a reasonable
insurer that was exposed to the risk of an adverse judgment would do so
Breach liable for entire judgment
Respondeat superior many states require 1) reckless retiring or retention OR 2)
told employee to act

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Intentional Torts
-

Legal Test

Subjective
o Must be volitional possible defense?
o Established by either
Desire to cause the consequences
Knowledge to a substantial certainty of the direct consequences of his action
o Proximate cause
Can be foreseeable or unforeseeable
Direct consequences test liable for all injures resulting directly from the
wrongful act, whether or not the injuries could have been foreseen by him
o Punitive damages available if proof of malice
o Liability cannot be discharged by bankruptcy
Battery Intentional infliction of a harmful or offensive bodily CONTACT
o Offensive Contact which would offend a person of reasonable sensitivity and
personal dignity
Must be unpermitted / unwanted!!
Eggshell psyche not recoverable UNLESS D has knowledge of and exploits Ps
sensitivity
o Contact = includes objects attached to or identified with Ps body (e.g. clothing,
cane)
Volitional, not incidental
Assault threatening physical act which puts an individual in reasonable
APPREHENSION of injury
o Apprehension the expectation itself is the injury
P must be AWARE of the act!!
Future non-immediate threats do not constitute apprehension
o Includes extension of the person and bodily space
Civil conspiracy agreement of the parties to engage in an unlawful objective
Insanity majority rule = not a defense to liability
Insurance policies often exclude intentional injuries courts interpret against the drafter
so if provision excludes caused intentionally then court will say this is the unintended
result of an intentional act and find act within the insurance policy

- Intentional infliction of emotional distress

o
o

Only recently recognized, still evolving

Elements
1. Intentional or reckless conduct by D
2. Extreme and outrageous = offends generally accepted standards of decency
and morality
3. Causation between conduct and emotional distress note: proximate =
direct consequences
4. Emotional distress was severe no physical injury required!!
Policy
For
Mental suffering may constitute a major element of damages, so its
anomalous to deny recovery because misconduct fell short of physical
injury
Against
31

o
o

Difficulty in assuring actual harm occurred and speculative damage

measurement
Certain amount of verbal abuse is part of everyday life
Public figures and officials may not recover for publications containing false
statements of fact made with actual malice; even when motivated by hatred or illwill
Outrageousness standard
Totality of the circumstances would offend an average member of the
community and lead him to exclaim outrageous!
Impermissible in political and social discourse inherently subjective
Actual malice knowledge that statement was false or with reckless disregard as to
whether or not it was true
1st Am Const defense need to give adequate breathing space to freedom of
speech
Aspect of individual liberty
Essential to the common quest for truth free trade in ideas
Intentional interference with family relationships
Based on adultery + alleged against the third party in the affair
Most states abolished this cause of action through judicial decision or heart
balm statutes
1. Alienation of affection outsiders through any means drive a wedge
between family members
2. Criminal conversation sexual intercourse of an outsider with husband or
wife

- Employees Title VII

o
o

o
o

Protects certain classifications by forbidding employers with 15+ employees from

discriminating in terms and conditions of employment
Protected Categories:
Gender / sexual harassment
Race or national origin
Religion
NOT cover sexual orientation
Tell employee if youre the counsel dont be late or insubordinate otherwise
summary judgment granted for employer because reasonable to fire

Sexual harassment / Gender

Quid pro quo employment benefits conditioned on sexual favors

Hostile environment
1. Unwelcome harassment in workplace
2. Harassment is because of membership in a protected category
3. Harassment is severe or pervasive enough to alter conditions of work
and create a hostile environment
o Objective reasonable person standard policy against reinforcing
stereotypes
4. Vicarious liability employer knew or should have known and took no
action to remedy
o Aff defense grievance procedures available and not used
o Should have multiple methods of reporting or prevention

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