Torts: The Outline

J. Clougherty & G. Pollack

Lamkin 2015

tort: (wrong); the law governs legal responsibility for wrongs people inflict on one another
Purpose
to impose legal responsibility for inflicting harms on others, and
to require those responsible for harms to compensate victims (damages)
o claims should be required to pay for damage done
to furnish victim of conduct with a remedy against the responsible party
Fairness
Whats fair to the parties?
Does deserve compensation?
Does desrve to compensate?
Was or better positioned to avoid the risk which produced the harm?
Effects on Society
How will a particular outcome affect future s and s?
What is the most efficient outcome?
What result will encourage people in invest the right amount of precaution to prevent harm to others?
Intentional v. Unintentional Torts
intentional torts: deliberate conduct battery, trespass, conversion
o distinct prima facie case consisting of certain things (elements of the claim) that must allege
and then prove in order to win the lawsuit
o can respond to prima facie case either by denying what has alleged or by raising an
affirmative defense
unintentional torts: harms caused by accident (inadvertently)
o strict liability: requires to pay for damages caused by an activity regardless of how carefully
the activity was conducted
o negligent liability: requires to pay only for harms caused by s failure to use reasonable care

BATTERY: the nonconsensual touching of, or use of force against, the body of another with the intent to cause
harmful or offensive contact

Restatement (Second) of Torts 18 BATTERY: OFFENSIVE CONTACT

(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a
third person, or an imminent apprehension of such a contact, and
(b) an offensive contact with the person of the other directly or indirectly results
(2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable
to the other for a mere offensive contact with the others person although the act involves an
unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened
bodily harm.
Elements of Battery
intended to make contact
makes contact
contact is offensive or harmful
something wrongful
contact: intentional touching of the person of another or anything that is connected with or in contact with
the others person or intentionally putting into motion anything which touches the person of another or
anything that is connected with or in contract with the others person.
o harmful contact: causes physical pain, injury, etc.
o offensive contact: offends a reasonable sense of personal dignity (R2d Torts 19)
What makes a contact wrongful?
o intent actually cause harm/offense
o intent to commit a different tort
o act violates a rule or norm
o if it would offend an ordinary person
damages: if you decide for on a claim of battery, damages must be assessed
o actual damages: must find sustained actual injuries as a result of the claimed battery; is entitled to
compensation for all injuries caused by the battery, be they anticipated or not.
o nominal damages: finding in favor of , but finding no actual damages awards nominal damages in
the sum of one dollar

Vosburg v. Putney (1891)

FACTS: one little boy kicks another after teacher called
class to orderdue to previous injury, leg becomes lame
PH: trial court gave verdict for , appealed
ISSUE: can be held liable if he did not intend to harm ?
RULE: if the intention was unlawful, intended act is also
unlawful and is liable for damages
HOLDING: yes; he did intend to make contact after the
teacher had called class to order (unlawful), is liable
NOTE: regardless of s intention, act is unlawful
because they were in class, after it had been called to order;
on the playground, would not have been unlawful
Knight v. Jewett (1990)
FACTS: game of touch football; told to stop playing so
rough, but he ended up unintentionally running over her
finger; it eventually had to be amputated
ISSUE: can be held liable if he did not intend to harm ?
RULE: intent to make contact is required for batter
HOLDING: no; testified even she knew did not intend
to step on s finger; without intent there can be no battery
NOTE: in contrast with Putney, the accident in this case
happened during a game between friends (lawful)

White v. University of Idaho (1989)

FACTS: piano teacher visits home of student, comes up behind her and touches her back as if he were playing piano; causes
unexpected injuries which require surgery eggshell plaintiff
ISSUE: can be held liable for battery if he intended to make contact without the intent to harm?
RULE: An actor is subject to another for battery if an offensive contact to another indirectly or directly results.

HOLDING: yes; said the contact took her by surprise, was not consented to and thus was offensive

Polmatier v. Russ (1988)

FACTS: shot father-in-law with a shotgun when he
believed his father-in-law was a spy who planned to kill
him; was found to suffer from paranoid schizophrenia
PH: trial court judgment to , SC affirmed
ISSUE: can be held liable for battery if is insane?
RULE: if the intention was unlawful, intended act is also
unlawful and is liable for damages
HOLDING: yes; he did intend to harm his father-in-law,
regardless of who he thought he was in his state
NOTE: if an insane person is not held liable for his own
torts, his caregivers may no longer have sufficient motive
to take care of him to prevent him from injuring others;
there is more injustice in denying an injured party to
recover damages for wrong committed by an insane
person; still made a choice to harm, even if it was for
irrational reasons; was not a reflexive act; rationality is not
required to make an act voluntary
Laidlaw v. Sage (1896)
FACTS: mysterious man (Norcross) comes into office of
wealthy financier () and threatened to drop his bag of
bombs if does not give him money; moves a clerk ()
in front of s body to shield from blast; Norcross pulls
fuse, it explodes; is severely injured in the blast, while
walks away unscathed
PH: many trials, eventually ruling for reversed
ISSUE: was the act involuntary?
RULE: an involuntary act does not constitute battery
HOLDING: yes; was acting in face of danger for selfpreservation (involuntary)
NOTE: court found Sage was acting under immediate
threatthe action was instinctive, not intentional; this
act was found to be reflexive, which is different from
Palmatier, where was not rational, but still made the
choice to act

Keel v. Hainline (1958)

FACTS: teacher was late to class; in her absence, boys
were throwing erasers at one another; , who was not
participating was hit, her glasses were shattered, and she
lost an eye; sued all of the boys playing
PH: trial court gave judgment to , SC affirmed
ISSUE: can be held liable if unintentionally hits ?
RULE: is liable if he hits intending to make wrongful
contact with another.
HOLDING: yes; even though the game was innocent and
without intent to injure, the conduct (throwing erasers at
one another) was still wrongful; all boys playing held liable
NOTE: bad ruling; this is a poor example of transferred
intent; if boy had hit another thrower, would be implied
consent; no transferred intent because was not intending to
commit a battery against the other boys when he hit the
girl; intent that is wrongful or unpermitted is necessary for
a battery claim
Manning v. Grimsley (1981)
FACTS: was a spectator at a baseball game; was the
pitcher, who was being heckled by fans; continuously
gave hecklers dirty looks and then threw the ball toward
the hecklers; ball went through the mesh fence and hit
PH: trial court gave directed verdict to ; appealed
ISSUE: was liable for battery, even though the fence
broke, rather than stopping the ball?
RULE: an actor is subject to liability to another for battery
if, intending to cause a third person to have an imminent
apprehension of a harmful bodily contact, the actor causes
the other to suffer a harmful contact. (created new rule!)
HOLDING: yes; a reasonable jury could infer that (1)
intended to throw the ball in the direction of the hecklers,
(2) to cause them imminent apprehension of being hit;
reversed and remanded for new trial
NOTE: similar to Keel, in that he was still liable even
though he did not intend to make contact (due to assault)

transferred intent: If A attempts to commit a battery against B, but mistakenly hits C, A is liable to C.

Leichtman v. WLW Jacor Communications (1994)

FACTS: was an anti-smoking advocate invited on a radio
show to discuss smoking/secondhand smoke; one host
urged the other to light a cigar and blow smoke in s face
the entire time; sued both hosts () for battery, claiming
blew smoke in his face for the purpose of causing
physical discomfort, humiliation, and distress
PH: trial court dismissed claim; court of appeals reversed
ISSUE: does blowing smoke in ones face = battery?
RULE: An offensive contact is one that would offend a
reasonable persons sense of dignity.
HOLDING: yes, because tobacco smoke is particulate
matter capable of making physical contact and of
offending a reasonable sense of personal dignity
NOTE: similar to Palmatier, in that hosts intended to make
contact and did so, even though the contact was not
intended to necessarily cause physical harm
Madden v. DC Transit System, Inc. (1973)
FACTS: was standing on a traffic island when he was
contacted by fumes and offensive oily substances that
allowed to spew from their buses
PH: trial court dismissed claim; court of appeals affirmed
ISSUE: can be held liable for battery in the absence of
malice, willfulness, or specific wrongful intent?
RULE: To be liable for battery, must have intent or
malice to make contact which harms .
HOLDING: no, without malice, willfulness, or specific
wrongful intent, cannot be held liable for battery
NOTE: the difference between this case and Leichtman is
intent; the hosts in Leichtman intended to bring smoke into
contact with , whereas there was no intention by in this
case to hit with the fumes

Morgan v. Loyacomo (1941)

FACTS: purchased underwear from s store; s
manager suspected she had taken two and paid for one and
followed or a block; in front of several people, he seized
the package from herand then realized he was wrong;
sued for battery
PH: trial court ruled for ; SC affirmed
ISSUE: did seizing the package as he did hold liable to
for battery?
RULE: To constitute battery, it is not necessary to touch s
body or even clothing; knocking or snatching anything
from s hand or touching anything connected with ,
when done in a rude or insolent manner, is sufficient.
HOLDING: yes, when snatched the package from
(rudely, in front of several people), he committed a battery
against her, as the package was connected with her person
NOTE: Merchants with reasonable cause may detain on
the premises in a reasonable manner and for a reasonable
time any person suspected of shoplifting for questioning or
summoning law enforcement. acted outside of premises.
Wallace v. Rosen (2002)
FACTS: was bringing her daughters homework to
school; was standing in a stairwell when the fire alarm
went off; (a teacher) put her fingers on s shoulders and
turned her 90 degrees; was recovering from foot surgery
and lost her balance; went tumbling down the stairs
PH: trial court refused to instruct jury that it could find liable
for battery if s story was to be believed; jury gave verdict to
; appealed, SC affirmed jury was instructed correctly
ISSUE: did s touching constitute battery?
RULE: In a crowded world, a certain amount of personal
contract is inevitable and must be accepted.
HOLDING: no; contact was inevitable on the stairwell
during a fire drill; was responsible to keep students
moving and her touching of to get her moving was not
offensive
NOTE: Distinct from Morgan in that, while intended to
make contact, it was not intended to be rude, etc. Distinct
from White, as Whites contact was unwelcome (even
though not intended to cause harm) intentional contact,
Garret v. Dailey (1955)
FACTS/PH: 5 yr old kid () pulls a chair out from under an old lady (); breaks a hip; trial court rules for , appellate reverses
ISSUE: can be held liable for battery if he moved the chair without the intent to cause the harm?
RULE: An actor is subject to another for battery if he is reasonably certain his act will cause contact to occur.
HOLDING: yes; he knew pulling the chair out from under her would make her hit the floor, even if he didnt mean to hurt her
NOTE: differs from Madden, where there was offensive contact with no intention; here, s action was definitely directed toward

Restatement (Second) of Torts 18 OFFENSIVE CONTACT (comments)

o Meaning of contact with another person
Not necessary that he should bring any part of his body in contact with anothers body
Enough that he intentionally causes his clothing/anything held/attached to him to come into such contact
If he throws a substance upon the other/sets a dog upon the other
o Intent of contact: direct or indirect contact with a foreign substance can reasonably regard as offensive
Comment c: It is not necessary that the contact with the others person be directly caused by
some act of the actor. All that is necessary is that the actor intend to cause the otherdirectly or
indirectlyto come in contact with a foreign substance in a manner which the other will
reasonably regard as offensive. (i.e. actor daubs a towel in filth with the expectation the other
will rub his face with itthe other does, so the actor is fully liable, just as if he had directly
thrown the filth in the others face or smeared him with it).)
o Knowledge of contact: it is not necessary that the other should know of the offensive contact which is
inflicted on him at the time when it is inflicted; liability is based upon his intentional invasion of the
others dignitary interest in the inviolability of his person and the affront to their dignity involved therein
EXAMPLE: A kisses B while B is asleep; the kiss does not wake or harm B. A is subject to liability to B.
o Necessity of intention: one has interest in the inviolability of his person and, therefore in freedom from
unpermitted contacts which, while offensive to a reasonable sense of personal dignity cause no substantial or
tangible bodily harm, is an interest of dignitary rather than material value. It is protected only from intentional
invasion. The actor is not liable for an act which involves a risk that will cause only an offensive contact, although
his conduct if it involved a similar risk of invading materially valuable interest would be actionable negligence or
even recklessness. The actor whose conduct is negligent or even reckless because of the risk involved of causing
an invasion of some materially valuable interest does not become liable if it causes only an offensive contact.
EXAMPLE: A throws dirty water from his window at B, who is walking on the street below. A few drops
fall on Bs hand, but do him no bodily harm. A is subject to liability to B. INTENTION!
o Crowded world: While walking in a densely crowded street, deliberately but not discourteously pushing, in order
to pass someone, is not offensive touching. If one is suffering from a contagious skin disease and touches Bs
hands, thus causing an apprehension of contagion, this is offensive touching.

BATTERY: CONSENT & ITS LIMITS

Does s consent to such contact free from liability?
o Maybe. may offer s consent as an affirmative defense (privilege) to a battery claim
o Consent may render an otherwise offensive contact inoffensive, negating an essential part of s case.
Is consent a defense to battery?
o has to show unauthorized contact if trying to prove a prima facie case
o If consent has been given, there is no prima facie case.
o If a person consents to contact, they cannot argue battery because wrongful contact is an element of battery

Mohr v. Williams (1906)

FACTS: doctor () told patient () she needed surgery on
her right ear, that left ear was fine; after she was
unconscious, discovered left ear was worse, so he
operated; was success-ful, but injured her person, greatly
impacted her hearing
PH: trial court ruled for ; appellate affirmed
ISSUE: if gives doctor specific consent to operate, does
doctor have implied consent to treat perform other
operations?
HOLDING: no, a person must give consent (expressly or
impliedly) before doctor has right to operate
NOTE: there was no evidence that the left ear was lifethreatening and therefore, consent should have been
obtained; it would have been different if she had been
Grabowski v. Quigley (1996)
FACTS: patient () was to have back surgery; doctor ()
was at another operation, couldnt make it, was already
under; had a different doctor perform; found out after his
surgery when he had foot problems, looked at med records
PH: trial court gave SJ to , appellate reversed for
ISSUE: does consent to one doctor stand as consent to
another, even if not expressly given to the other doctor?
HOLDING: no, must have patients expressed consent, so
long as patient is able to consult about his condition.
NOTE: s consent to the first doctor does not amount to
automatic consent to the other doctor; should have woken
him up and gotten consent or postponed surgery until the
first doctor was able to make it back and perform the
surgery himself

Brzoska v. Olson (1995)

FACTS: dentist had HIV, which became AIDS and resulted in open lesions, etc; denied when patients asked him; when he died,
patients sued for battery; nobody tested positive for HIV, but tried to sue for mental anguish, saying would have found touch
offensive if they knew about his disease
PH: trial court gave SJ to , SC affirmed
ISSUE: Does doctor having AIDS constitute a substantially different touching than to what patients consented?
HOLDING: no, dentist did not commit offensive touching under the reasonableness standard; no channel of infection or actual
exposure to the virus; never touched without consent
NOTE: case is amidst the AIDS scare; SC was probably making a point that someone with AIDS touching another is not an
offensive contact, unless there is an open channel of infection (blood to blood, etc); this was a sterile environment, the fear of
AIDS is ridiculous; dentist said what he would do and then touched as they expected; in Grabowski, patient was operated on by
one to whom he gave no consent; here, patients consented to dentist touching
Cohen v. Smith (1995)
FACTS: needed a C-section; her religion forbade her from
allowing another man to see her naked; male nurse was there
anyway and touched her while her clothes were off; she sued
hospital/nurse () for battery and IIED
PH: trial court dismissed case; appellate reversed
HOLDING: had informed of her religious beliefs
beforehand, yet persisted in treating her as they would
normally treat a patient who was fine with a man seeing her
NOTE: differs from Brzoska, where the patients had
consent for the dentist to perform the treatment and he did
as they expected; here, made her consent (women only)
known, agreed, and then did not follow through, giving
her different treatment than to what she consented to (by
allowing a male nurse into the room)
Werth v. Taylor (1991)
FACTS: was Jehovahs Witness, had signed waiver for
blood transfusion before birth of twins; began to die on the
table and authorized a blood transfusion to save her life
PH: trial court gave SJ to ; appellate affirmed
ISSUE: did violate s consent (waiver) by performing
the blood transfusion to save her life?
HOLDING: no; and her husbands refusals were not
contemporaneous or informed (were not made while her life
was on the line)
NOTE: differs from Cohen, as patient there specifically
said no male during c-section (not life and death); here,
patient did not give consent facing the actual possibility of
death; differs also from Mohr, who performed surgery not
to save a life without consent; here, doctor had implied

Restatement (Second) of Torts 892 MEANING OF CONSENT

(1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be
communicated to the actor.
(2) If words or conduct are reasonably understood by another to be intended as consent, they constitute consent
and are as effective as consent in fact.
apparent consent: Even when the person concerned does not in fact agree to the conduct of the other, his words or
acts or even his inaction may manifest a consent that will justify the other in acting in reliance upon them. This is true
when the words or acts or silence and inaction would be understood by a reasonable person as intended to indicate
consent and they are in fact so understood by the other.
10

Neal v. Neal (1994)

FACTS: found out husband () was cheating on her; sued for battery, claiming would not have consented to sex, had she known he
had been banging someone else
ISSUE: did s misrepresentation violate consent and constitute offensive contact (battery)?
HOLDING: trial court dismissed, but SC reversed and gave a jury trial

NOTE: As , would argue Grabowski (no consent to post-affair sex); as , would argue Brzoska (no different touch than shes used
to); if the husband caused harm to the wife, he is liableif not, he is not liable

Restatement (Second) of Torts 892B. CONSENT UNDER MISTAKE, MISREPRESENTATION, OR DURESS

o A consents to boxing match with B. B knows A is unaware that A has a defective heart. B punches A in
the chest, causing A to have a heart attack. B is subject to liability to A.
o A lets B stain his face, knowing the substance is permanent while A does not. B is subject to liability to
A.
Restatement (Second) of Torts 57 FRAUD OR MISTAKE AS TO COLLATERAL MATTER
o A offers B a counterfeit $20 to have sex with him. A knows it is counterfeit, B does not. A is not liable for battery
to B, as there was no physical harm (possible dignitary harm).
o Same facts as above, but the counterfeit bill is offered if B will submit to a blood transfusion. A is subject to
liability to B for the harm done by the operation to which A had fraudulently induced B to submit..
Hart v. Geysel (1930)
FACTS: Cartwright and engaged in illegal prize fight;
Cartwright died; his estate () sued
PH: trial court dismissed case; SC affirmed
RULE: one who engages in illegal activity has no right to
recover for any damages he may sustain bc of activity
HOLDING: dismissed; the two engaged in illegal activity
and no man shall profit from his own wrongdoing;
Cartwright had consented anyway.
NOTE: Though this court thought otherwise, the majority
of jurisdictions hold that consent to an unlawful act is no
defense to a claim of battery.
McNeil v. Mullin (1905)
FACTS: and were both driving buggies and yelling at
each other; eventually, each dismounted and removed their
hat and coat; fight ensued; sued to recover for injuries
PH: trial court found verdict for ; SC reversed
RULE: consent to an assault is no justification
HOLDING: remanded for new trial

NOTE: Assent to an assault is no justification. If a man

takes part, he cannot complain about it and each party is
left to suffer he consequences; this was not self-defense, it
was a breach of the peace in public, which is an offense to
the state. No consent is required in self-defense.

Restatement (Second) of Torts 892C. CONSENT TO CRIME

(1) Except as stated in subsection (2), consent is effective to bar recovery in a tort action although the conduct
consented to is a crime.
(2) If conduct is made criminal in order to protect a certain class of persons irrespective of their consent, the
consent of members of that class to the conduct is not effective to bar a tort action.
A and B agree to duel with pistols. A shoots B and breaks Bs arm. A is not liable to B.
A statute makes it rape to have sex with a girl under the age of sixteen even with her consent. At the
solicitation of A, a girl of fourteen, B has sex with her. As consent does not bar her action for battery.
A statute makes adultery a crime. A, a married woman, commits adultery with B. Neither is liable to
the other for the contacts inseparable from their crime (adultery).
11

Hollerud v. Malamis (1969)

FACTS: drunk at s bar, arm wrestled bartender; hurt fingers
PH: trial court gave SJ to ; appellate reversed
RULE: intoxicated persons cannot consent
HOLDING: reversed, as was drunk when he consented

NOTE: bartender had knowledge of s intoxication; as he

had knowledge of s intoxication, consent is ineffective

Miller v. Couvillion (1996)

FACTS: injured when he fell while helping his (really cool)
manager demonstrate his karate skills in the warehouse
PH: trial court dismissed; appellate affirmed
RULE: contact must be intended to sue for battery

HOLDING: dismissed; manager was not trying to kick

TRESPASS & CONVERSION

Trespass to Land: Trespass to land is the (1) intentional, (2) unlawful, (3) physical invasion of real property,
(4) as to which the plaintiff is the rightful owner or is otherwise the person with rightful exclusive possession
and control over the property (such as a lessee).

Elements of Trespass:
Intent: The intent required is merely the intent to enter upon the land, cause the entry, or remain.
s good faith (but erroneous) belief that he has a right to be there, or his reasonable mistake
concerning title, right to possession, consent, or privilege, is no defense.
R2d 164 Intrusions Under Mistake
Unlawful invasion:
R2d 168 Conditional or Restricted Consent
(1) Without s effective consent, or
12

(2) Without some other, overriding legal privilege to be there:

can morph into a trespasser if he remains on property after s consent or his
lawful privilege expires
might also be invited onto a certain part of the property, but wanted off into a
different area where he has no privilege or permission to be
Physical invasion: Trespass may be directly or indirectly caused.
R2d 158 Liability for Intentional Intrusions on Land
Vertical boundaries: The boundaries of land extend above and below the surface;
therefore trespass may be by an intrusion at, above, or beneath a surface.
Exception: Aircraft. There are several theories used to balance the possessors rights
against the needs of aviation.
Causing trespass by things: can physically invade s property by causing a physical
object other than s own body to come onto the property.
R2d 166 Non-liability for Accidental Intrusions: Except where the actor is engaged in an
abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of
another, or causing a 3rd person to enter the land, does not subject the after to liability to the possessor,
even though the entry causes harm to the possessor or to a thing or 3 rd person in whose security the
possessor has legally protected interest.

Pegg v. Gray (1954)

FACTS: owned 70 cattle confined by barbed wire.
lived next door and had team of foxhunting
hounds. Dogs would chase foxes onto s property
causing cattle to stampede and break down fence.
PH: Trial ct. non-suited , app. ct. reversed
ISSUE: Can person be liable for intentionally letting
dogs loose to hunt on anothers property?
RULE: Foxhunting as a sport is to follow established
property rights and is subject to laws of trespass.
HOLDING: Yes. In absence of permission to hunt,
dog owner is liable for trespass even though dog
owner does not himself go onto the lands, but
allows his dogs to go in pursuit of game.
knowledge of substantial certainty that dogs could
enter s land (actual or constructive knowledge
that they could end up there)

13

Malouf v. Dallas Athletic Country Club (1992)

FACTS: lived next to golf course; on 3 separate
occasions golf balls from 6 th hole damaged s
cars
PH: Trial ct. ruled for , app. ct. affirmed
ISSUE: Is it a trespass if golf ball is
unintentionally hit towards cars?
RULE: No liability for accidental intrusions that
cause unintentional damage (R2d 166).
HOLDING: No, property right is not violated
when golf ball intended for hole 6 unintentionally
damaged s property. did not intend to cause
damage; no factual evidence that or golfers
intended to hit s car.
NOTES: Similar to Pegg in that should have
known that balls could hit cars. The distinction is
intentional versus unintentional acts. In Malouf,
there was no intent, but in Pegg, intentionally
released dogs to hunt.

Van Alstyne v. Rochester Telephone Corp. (1937)

FACTS: had hunting dogs; phone co. had
easement to fix cable over s yard where dogs
were kept; dropped lead droppings in yard but
didnt realize it; dogs ate them and died
PH: trial ct. dismissed negligence (not
foreseeable to workers that dogs would eat lead
and die), but ruled for ; app. ct. affirmed
ISSUE: When workers left lead, did it become a
trespass since they didnt have consent to do so?
RULE: Easement for maintenance of line conferred
right of access for purpose of repairs or extensions,
not a right to leave substances upon the premises.
HOLDING: Yes, such an invasion of the
premises of another renders the invader liable
whether it be intentional or not, or whether the
loss resulting to the owner be direct or
consequential. did not have right to leave
behind lead, thus became an intruder and is liable
regardless of unforeseen consequences. Having
an easement goes beyond scope of having the

14

Edwards v. Lee (1929)

FACTS: found cave on his land; opened hotel,
charged admission to explore it; said cave goes
under his land and claimed was trespassing
PH: Trial ct. ruled for b/c 1/3 of cave under s
land & enjoined from further trespassing; app.
ct. affirmed
ISSUE: Does landowner have right to what is
below his property?
RULE: Owner of land entitled to free and
unfettered control of his own land above and
beneath the surface.
HOLDING: Yes.

DISSENT: Rule should be he who owns the

surface is the owner of everything that may be
taken from the earth and use for his
profit/happinesscave should belong to man
who owns its entrance and however far it
extends.

Smith v. New England (1930)

FACTS: owned country estate; airport next
door; flew planes over s property in range
from 100-1000 ft.
PH: Mass. Supreme Court
ISSUE: Can an aircraft, in order to reach or leave
an airport, fly as low as 100 ft. against the protest
of owner? Is it trespass?
RULE: Flights at altitudes as low as 100 ft.
constitute trespass.
HOLDING: Yes. Federal and state laws generally
require planes to maintain altitudes of at least 500
ft. Air navigation, important as it is, cannot
rightly levy toll upon the legal rights of others for
its successful prosecution.

Conversion: The interference with personal property of another, to such an extent that is required to pay its full value.
R2d 217 Ways of Committing Trespass to Chattel: A trespass to a chattel may be committed by intentionally
a. Dispossessing another of the chattel; or
b. Using or intermeddling with a chattel in the possession of another.
R2d 218 Liability to Person in Possession: One who commits a trespass to a chattel is subject to
liability to the possessor of the chattel if, but only if,
a. He dispossess the other of the chattel, or
b. The chattel is impaired as to its condition, quality, or value, or
c. The possessor is deprived of the use of the chattel for a substantial time, or
d. Bodily harm is caused to the possessor, or harm is caused to some person or thing in which
the possessor has a legally protected interest.

R2d 222A What Constitutes Conversion

15

1. Conversion is an intentional exercise of dominion or control over a chattel which so seriously

interferes with the right of another to control it that the actor may justly be required to pay
the other the full value of the chattel.
2. In determining the seriousness of the interference and the justice of requiring the actor to pay
the full value, the following factors are important:
a. The extent and duration of the actors exercise of dominion or control;
b. The actors intent to assert a right in fact inconsistent with the others right of control;
c. The actors good faith;
d. The extent and duration of the resulting interference with the others right of control;
e. The harm done to the chattel;
f. The inconvenience and expense caused to the other.
R2d 226 Conversion by Destruction or Alteration: One who intentionally destroys a chattel or so
materially alters its physical condition as to change its identity or character is subject to liability for
conversion to another who is in possession of the chattel or entitled to its immediate possession.
Elements
Intent to exercise near-total, owner-type dominion over personal property
Resulting serious interference with the rights of the true owner or other rightful owner

16

Russell-Vaughn Ford, Inc. v. Rouse (1968)

FACTS: (Rouse) went to to see about trading
in car; asked for s keys; no agreement about
car; asked for return of keys; s employees
couldnt find them and laughed at ; cops come
and finally returns keys, saying they wanted to
make cry a little
PH: Trial ct. for ($5,000), app. ct. affirmed
ISSUE: Does withholding keys from owner
constitute conversion?
RULE: It is enough to show that exercised
dominion over property in exclusion or defiance
of the right of .
HOLDING: Yes. Nothing requires show
appropriated property for his own use, only that
had dominion over it. Ct. said doesnt have to
exhaust all possible means of gaining possession of
chattel that is withheld from him by after
demanding return. s dominion was unintentional
Palmer v. Mayo (1907)
FACTS: rented horse and buggy from ; let
Scott and Cook use them; they crashed, horse died;
claims they were drunk; Cook says not drunk and
didnt drive; Cook thought Buggy belonged to
PH: Trial ct. for against both s; Cook
appealed; app. ct. affirmed
ISSUE: Is bailee liable for consequences arising
from unauthorized use?
RULE: A bailee is liable for injury to bailed property
occurring during the use of it by him or by others
with his consent, which was neither expressly nor
impliedly authorized by the k of bailment even
though such injury was the result of accident and not
of negligence in manner in which property was used.
HOLDING: Yes. Unauthorized passenger on
unauthorized errand outside scope of contract
to give use of buggy to someone else

17

Spooner v. Manchester (1882)

FACTS: hired horse and carriage from to go
from Worcester to Clinton and back; on return,
got lost, asked for help, instructed to go another
route; horse became lame on that part of trip
PH: trial ct. for , app. ct. reversed
ISSUE: Does getting lost amount to conversion
when horse goes lame in area not authorized by k
due to being lost?
RULE: Act involving temp. use, control, or
detention of property may well depend on
circumstance of case and intention
HOLDING: No. did not intend to violate k or
to exercise any control over horse in any way
inconsistent with it; got lost and did what he
thought best
Wiseman v. Schaffer (1989)
FACTS: received call to tow truck from truck
stop; caller said $30 would be inside truck;
located truck and money; towed truck; caller had
been imposter; imposter and truck never found
PH: sued for negligence.
ISSUE: Did Schaffers towing of Wisemans
truck constitute conversion?
RULE: R2d 222A(1), (2)(d)-(f)

HOLDING: Yes. Schaffer mistaken about

possessor but intended to tow car. Tow truck guy
in best position to prevent harm and bear loss.

PRIVELEGES: DEFENSE OF PERSONS & PROPERTY; PRIVATE NECESSITY

Self-Defense: has a privilege to use so much force as reasonably appears to be immediately necessary to
protect himself against imminent physical harm threatened by the intentional or negligent conduct of another.
may use force likely to inflict death or serious bodily harm only when (a) he reasonably believes that he is in
danger of similar harm or a sexual assault, and (b) he is not required to retreat or escape.
63 Self-Defense by Force Not Threatening Death or Serious Bodily Harm
a) Actors duty to avoid forceactor cannot reasonably believe that the use of force is necessary
until he has exhausted all other reasonably safe means of preventing the other from inflicting
bodily harm upon him.
b) Actors duty to retreatif actor reasonably believes that he is threatened with the intentional
disposition of bodily harm/offensive contact, he may stand his ground and repel attack by use of
reasonable force which does not threaten serious harm or death, even though he might with
absolute certainty of safety avoid threatened bodily harm/offensive contact by retreating
65 Self-Defense by Force Threatening Death or Serious Bodily Harm
73 Harmful Contact in Defense Against Harm Threatened Otherwise Than by Other
Example: A and B sailing in a boat about to be swamped. Boat cannot hold both safely. A,
stronger than B, pushes B out. A reaches shore safely, but B drowns. A is liable for wrongful
death of B.
Defense of third person: is privileged to come to the defense of any other person under the same conditions
and by the same means he would be privileged to defend himself.
18

 76 Defense of a Third Person

Defense of property: A possessor is privileged to use reasonable force to expel another or a chattel from his
land, or to prevent anothers imminent intrusion upon or interference with his land or chattels, or to prevent his
dispossession, even though such conduct would otherwise be a tort.
9.41 Protection of Ones Own Property
a) A person in lawful possession of land or tangible, movable property is justified in using force
against another when and to the degree the actor reasonably believes the force is immediately
necessary to prevent or terminate the other's trespass on the land or unlawful interference with
the property.
b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in
using force against the other when and to the degree the actor reasonably believes the force is
immediately necessary to reenter the land or recover the property if the actor uses the force
immediately or in fresh pursuit after the dispossession and:
1) The actor reasonably believes the other had no claim of right when he dispossessed the
actor; or
2) The other accomplished the dispossession by using force, threat, or fraud against the
actor.
9.42 Deadly Force to Protect Property A person is justified in using deadly force against another to
protect land or tangible, movable property:
1) If he would be justified in using force against the other under Section 9.41; and
2) When and to the degree he reasonably believes the deadly force is immediately necessary:
a. To prevent the other's imminent commission of . . . theft during the nighttime ;or
b. To prevent the other who is fleeing immediately after committing . . . theft during the
nighttime from escaping with the property; and
3) He reasonably believes that:
a. The land or property cannot be protected or recovered by any other means...
Basic rule: is privileged to use physical force against another person, but only to the extent that he
reasonably believes the use of force to be necessary in order to defend either himself or someone else
against the use or imminent use of unlawful physical force.
Proportionality: We can use force to defend ourselves and others, but our response must be (from the
point of view of an objectively reasonable person) proportionate to the threat against which we are
defending. Thus, excessive use of force and retaliation are not permitted.
Reasonableness: An objectively reasonable person in the s situation would believe both (1) that the
use of force is necessary, and (2) that the force which the actually uses is not disproportionate to the
threat. The belief must be objectively reasonable, so irrational or unfounded fears of force will not
suffice.
o However, that coin has another side: A reasonable belief is sufficient, even if in reality it is
mistaken.
o Even though the analysis is objective, it does allow for some consideration of the s life
experience, as well as any knowledge the may have concerning the initial aggressor
especially where the initial aggressor knows about the s relevant life experience.
Amount of force: may use force or the threat of force, but only such actual force as is minimally
required to prevent or terminate the intrusion. Force likely to cause death or great bodily harm is not
privileged. The intruder is not privileged to resist.
Watchdogs/spring guns: Spring guns, concealed traps, and other mechanical devices, and vicious
animals, used to defend s property, are used at s risk. is subject to liability for harm they cause to
an intruder that he would not have been privileged to inflict himself if present.
Single owner principle: If a person were a single owner, would they still act the same way if it was
against his own property? This gives incentives to solve problems another way.
19

Wright v. Haffke (1972)

FACTS: owned grocery story; and friend went up to cash register, pushed , grabbed money and ran for
door; shot in the back
PH: Trial ct. for , sup. ct. affirmed
ISSUE: Is privileged to use gun to protect property?
RULE: Firearm may be used if reasonably necessary to prevent commission of felony or to arrest felon after felony
committed
HOLDING: Yes. must not docilely submit to robbery and a felon running away with s property. Felony is
relevant to assess the reasonable use of force. owed no duty to of affirmative care and had right to resist
attempted robbery by whatever means in his power.
NOTES: present for crime and used reasonably force in Haffke, while in Katko, not present for cime and
Katko v. Briney (1971)
FACTS: owned house (mostly for storage) that
got broken into often; no trespass signs; set up
loaded spring gun to go off when bedroom door
opened; broke in and right left injured badly
PH: Trial ct. for , app. ct. affirmed (prima facie
case-elements met)
ISSUE: Does property owner have right to
protect property by deadly force when he is not
on premises?
RULE: A person, in protecting his property, may
not use force calculated to cause death or serious
bodily injury, except where there is also a threat
to personal safety that justifies self-defense.
HOLDING: No. Personal rights are given a
highervalueunderthelawthanpropertyrights.
The use of spring guns or similar devices to
protectpropertyagainstatrespasserorpettythief
isnotjustified.
Crabtree v. Dawson (1904)
FACTS: owned building; dance on 3rd floor,
party on 2nd floor; Noble, a drunk, tries to crash
dance; escorted him out; heard someone yell
about Noble getting bricks; heard footsteps and
yelled for person not to come up; hit in face
with butt of musket
PH: Trial ct. for , app. ct. reversed
ISSUE: Battery if thought he was intentionally
hitting Noble and not Crabtree?
RULE: has duty to exercise higher degree of
care under the circumstances to have ascertained
that person he was going to hit was that right
person he thought previously attacked him.
HOLDING: Yes. It could be excused for selfdefense and necessity if had reasonable
grounds to believe it was Noble and the he
reasonably thought he needed to defend himself
from threat of attack and he used no more force
than was necessary.

20

Woodbridge v. Marks (1897)

FACTS: had 2 watchdogs; knew dogs to be
vicious, kept on chains that couldnt reach house
or walkways; entered s property, left
walkway because too dark to follow; s dogs
threw down, causing severe injuries
PH: Trial ct. for , app. ct. reversed
ISSUE: Is dog owner liable for injuries sustained
by dog even though dog chained up?
RULE: The mere keeping of a ferocious dog,
knowing him to be such, for the purpose of
defending ones home is not in itself unlawful.
HOLDING: Not liable. When injury follows
from a dog so kept, the manner of his
confinement and circumstances are considered. If
owner is liable any time dog bites another, it
would be impossible to lawfully keep a dog to
defend property. Dogs also serve other
roles/purposes, and banning would ban
something valuable.
Bamford v. Tunley (1862)
was a brick maker sued by (a neighbor) for
creating a nuisance
Trial ct. for , app. ct. reversed
In deciding whether a has acted wrongfully,
we might ask how the situation would have been
handled by a single owner
Kershaw v. McKown (1916)
Dogs vs. goats
NL for killing s dog
Single owner principle: which animal is more
valuable?
Hogs vs. chickens: The lawforbids the killing by
one of anothers hog in order to protect his own
chicken because, if it permitted it, the result would be
to lay down a doctrine that would allow the
destruction of a $50 hog to save a 50-cent chicken,
and, consequently, would be measuring the right of a
chicken owner by a standard out of all proportion to
the wrong done by the hog owner.

Necessity: may interfere with the s property rights if a reasonable person in the s shoes would believe such interference to
be necessary in order to avoid injury, which is substantially more onerous (or worse) than the action taken to avert it.
R2d 197 Private Necessity
1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be
necessary to prevent serious harm to
a. The actor, or his land or chattels, or

21

b. The other or a third person, or the land or chattels of either

Ploof v. Putnam (1908)
FACTS: owned island w/ own dock; and family in
sloop during violent storm; tied boat to s dock; s
servant untied them; sloop destroyed, family injured
PH: Trial ct. for , app. ct. affirmed
ISSUE: Is it trespass if out of private necessity?
RULE: Necessity caused by an act of God or other
disaster resulting in an inability to control movements
justifies entries upon land and interferences with personal
property that would otherwise have been trespasses.
HOLDING: No. Doctrine of necessity especially applies
when the danger involves threat to human life. Not a
trespass when one destroys the personal property of
another or enters onto anothers land to save his life or the
lives of others.
NOTES: No duty to rescue under CL, but need to

Vincent v. Lake Erie Transportation Co. (1910)

FACTS: s ship moored to s dock; violent storm hit, preventing ship from leaving; deliberately kept boat
anchored to s dock so it wouldnt drift away; boat repeatedly knocked dock, causing damage
PH: Trial ct. for , app. ct. affirmed
ISSUE: Must a party who ties her boat to anothers dock to keep it from drifting off in a storm compensate the
dock owner for damages?
RULE: A party who damages the property of another while acting out of private necessity must compensate the
property owner for the resulting damage.
HOLDING: Yes. Erie acted prudently and out of a private necessity to protect its boat, but it is nevertheless
liable for the damage to Vincents dock. A party will not be liable for property damage that results from an act
of God. Where a party acts deliberately to protect her property, even if her actions are entirely reasonable under
the circumstances, she will be liable to another property owner for damages that result.
Rossi v. DelDuca (1962)
FACTS: walking home, confronted by dogs,
runs away, chased, hits dead end; enters s field
to get away; had 2 guard dogs; bit by dog
PH: trial ct. for , app. ct. affirmed
ISSUE: Is it trespass if out of necessity?
RULE: One is privileged to enter land in possession
of another it if is, or reasonably appears to be,
necessary to prevent serious harm to the actor.
HOLDING: No because private necessity to
prevent serious harm to body or property.
NOTES: Distinct from Woodbridge bc entered land
and stepped off sidewalk intentionally. Rossi had no
intention of trespassing, entered for private necessity.
Similar to Ploof bc private necessity to prevent serious
harm to body. Necessity justifies entry. Preservation of
22

OUTRAGE (IIED): the intentional infliction of emotional distress.

Elements
must engage in what the law defines as extreme and outrageous conduct
Conduct must be either
a. Intended to cause to suffer severe emotional distress o
b. Must be done with recklessness as to whether the will suffer severe emotional distress
s conduct must actually and proximately cause to suffer severe emotional distress
R2d 46 Outrageous Conduct Causing Severe Emotional Distress
1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional
distress to another is subject to liability for such emotional distress, and if bodily harm to the
other results from it, for such bodily harm.
2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally
or recklessly causes severe emotional distress
a. To a member of such persons immediate family who is present at the time, whether or
not such distress results in bodily harm, or
b. To any other person who is present at the time, if such distress results in bodily harm.
Comment d: Extreme and Outrageous Conduct. The cases thus far decided have found liability only where s
conduct has been extreme and outrageous. It has not been enough that has acted with an intent that is tortious or
even criminal, or that he has intended to inflict emotional distress, or event hat his conduct has been characterized by
malice, or a degree of aggravation that would entitle to punitive damages for another tort. Liability has been
found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to an average member of the community would around
his resentment against the actor, and lead him to exclaim, Outrageous! The liability clearly does not extend to
mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society
are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and
required to be hardened to a certain amount of rough language, and to occasional acts that are definitely
inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are
hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through
which irascible tempers may blow off relatively harmless steam. It is only where there is a special relation between
the parties . . . that there may be recovery for insults not amounting to extreme outrage.
Comment f: The extreme and outrageous character of the conduct may arise from the actors knowledge that the other is
particularly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct
may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would
not be so if he did not know. It must be emphasized again, however, that major outrage is essential to the tort; and the mere
fact that the actor knows that the other will regard the conduct as insulting/ have his feelings hurt, is not enough.
Illustration 4: A makes a telephone call but is unable to get his number. In an altercation with the telephone
operator, A calls her a God damned woman, a God damned liar, says if he were there he would break her God
damned neck. B suffers severe emotional distress, broods over the incident, is unable to sleep, and is made ill. A's
conduct, although insulting, is not so outrageous/extreme as to make A liable to B.
Illustration 9: A, an eccentric and mentally deficient old maid, has the delusion that a pot of gold is buried in her
back yard, and is always digging for it. Knowing this, B buries a pot with other contents in her yard, and when A
digs it up causes her to be escorted in triumph to the city hall, where the pot is opened under circumstances of public
humiliation to A. A suffers severe emotional disturbance and resulting illness. B is subject to liability to A for both.
Illustration 12: A is in a hospital suffering from a heart illness and under medical orders that he shall have complete
rest and quiet. B enters As sick room for the purpose of trying to settle an insurance claim. Bs insistence and
boisterous conduct cause severe emotional distress, and A suffers a heart attack. B is subject to liability to A if he
knows of As condition, but is not liable if he does not have such knowledge.
23

Difficult to prove s conduct caused s harm, due to a possible flood of litigation

Courts are willing to award damages where it results from (or is parasitic upon) the commission of
some other tort.
The difference between IIED and other torts is that there is no clear definition of the prohibited conduct
o Jury decides what is/is not outrageous
o Varies from community to community the setting in which it occurred is important
o Outrageous is a vague term, which does not objectively describe an act or series of acts
o How much distress is enough? Very vague!
o Should not limit personal liberty; people should be able to get angry.
The most important elements of IIED are the relationship between the parties and the contect in which
the behavior occurred.

Roberts v. Saylor (1981)

FACTS: had 3 surgeries; 1 st surgery doc leaves in
sutures; 2nd surgery removes sutures, wanted to
help her sue doc #1 for malpractice; refused; 3 years
later, lying on operating table, sees her and says I
dont like you; distressed, scared, didnt want to go
through with surgery
PH: trial ct. granted SJ for , sup. ct. affirmed
ISSUE: IIED if only insults?
RULE: Conduct sufficient to recover for IIED must be
outrageous to the point that it goes far beyond the bounds
of decency and is utterly intolerable by civilized society.
HOLDING: No. L does not arise from mere insults,
indignities, threats, annoyances, petty expressions, or
other trivialities. People have the freedom to express
unflattering opinions, and law should not intervene.
Greer v. Medders (1985)
FACTS: was recovering from surgery while his own doc
on vacation; was to care for him but did not visit for
many days; called office to complain; yelled at in
front of s wife; as a result, needed psychiatric care
PH: Trial ct. SJ for , app. ct. reversed
ISSUE: IIED when abusive statements made to postoperative patient and wife as patient lay in a hospital bed?
RULE: When determining outrageous element of
outrage tort, we must consider the parties relationship.
HOLDING: Yes. Because was s doctor, a power
relationship existed. The insults that transpire in the
context of a power relationship must be viewed
differently than a random stranger off the streets.

Greer is distinct from Roberts due to the relationship between the parties; in Roberts, there was no liability because
was not s doctor at the time. In Greer, was s own doctor, was already in a vulnerable state (recovery) and the
conduct caused harm (uncontrollable shaking, need for psychiatric treatment).

24

Muratore v. M/S Scotia Prince (1988)

FACTS: was a passenger on s cruise ship; as she
boarded, 2 employees took her pic; said she didnt want
pic taken and walked up backward; employees took
picture of her backside and put a gorilla face over her
head, displayed it; continued trying to take her picture,
made lewd comments, dressed in gorilla suit; spent
many hours in her room to avoid harassment
PH: trial ct gave verdict o ; appealed, App. affirmed
ISSUE: did pics/lewd comments meet outrageous
standard required for IIED?
RULE: Conduct sufficient to recover for IIED must be
outrageous to the point that it goes far beyond the bounds
of decency and is utterly intolerable by civilized society.
HOLDING: Yes

NOTES: in the given context, outrageous element is met

the continued harassment/taunting remarks lead court
to believe conduct to be intentional; knew action was
offensive, but continued anyway

Pemberton v. Bethlehem Steel Corp. (1986)

FACTS: was union official for s employees; was
unhappy with s conduct and hired a PI to investigate him;
obtained evidence was having affair, sent it to s wife;
found mug shots from 15 yrs ago, passed them around
union
PH: trial ct gave SJ to ; App. affirmed
ISSUE: did exposing affair/mugshots meet outrageous element?
RULE: Conduct sufficient to recover for IIED must be
outrageous to the point that it goes far beyond the bounds
of decency and is utterly intolerable by civilized society.
HOLDING: No

NOTES: consider the personality of and the context;

was a union official, a rough and tumble sort; tough
guy in a tough role; sending truthful info about criminal
history and affair do not meet the test; did not show the
degree of distress to which no reasonable person should
be expected to endure (required for outrage) must be
unable to function/attend to necessary matters; must

Pemberton is distinct from Muratore because in Muratore, knew was susceptible to emotional distress due to her
first refusal, but continued their behavior. In Pemberton, truthful information was not considered outrageous to .
Figueiredo-Torres v. Nickel (1991)
FACTS: and wife sought marriage counseling from ; started affair with s wife; began to demoralize and suggest
should leave his wife; sued for professional negligence and IIED
PH: trial court dismissed; app. court reversed
ISSUE: did relationship between and affect cause of action for IIED?
RULE: Where is in particular position to harass and cause emotional distress, conduct is carefully scrutinized.
HOLDING: Yes

NOTES: came out this way due to the relationship between and ; extreme/outrageous character of s conduct may arise
from abuse of a position or a relationship with the other person that gives one authority over the other or power to affect the
others interests; probably wouldnt have been outrageous if not for relationship between the twothe patientpsychologist relationship focuses directly on psyche; suffered a loss due to intentionally inflicted severe emotional distress

Criminal conversion: a tort which consisted of having a sexual relation with the spouse of another; amatory torts
included seduction, alienation of affections, breach of promise to marry
25

Hustler Magazine v. Falwell (1988)

FACTS: was prominent religious/political figure; magazine
ran parody ad with showing that his first time was drunken
incestuous rendezvous in an outhouse; bottom of ad said
parody not to be taken seriously; sued for IIED, libel, other
torts
PH: trial court ruled against for libel, jury verdict to
for IIED ($150k in compensatory and punitive damages);
Supreme Court reversed, ruled unconstitutional
ISSUE: Did fall under public figure role?
RULE: Public officials cannot sue for IIED without showing
false statement of fact that was made with actual malice.
HOLDING: Yes; is not liable

NOTES: parody is not malicious; no reasonable person

would believe the ad to be true; satire plays a big role in
the public and in political debate; Falwell is influential to
public/politics (very powerful in Religious Right)

Van Duyn v. Smith (1988)

FACTS: was exec director of local abortion clinic;
was anti-abortion activist, would follow in his car,
confront her at the airport, interfere with her comings
and goings, published disparaging posters with s pic
and distributed them within 3 block radius of her home
PH: trial court dismissed; App reversed
ISSUE: Did fall under public figure role?
RULE: Public officials cannot sue for IIED without showing
false statement of fact that was made with actual malice.
HOLDING: No; could be liable

NOTES: public figures are those intimately involved in

the resolution of important public questions or, by fame,
shape events in areas that concern society at large; was
private individual, not in position to influence society;
did not want to take away s 1 st amendment rights, but
posters were last in a long list of things did to , case
worthy of jurys consideration; probably would not have
been liable if had been just a few posters and nothing

26

NEGLIGENCE: The failure to exercise the standard of care that a reasonably prudent person would have exercised in a
similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of
harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights; the doing of what a
reasonable and prudent person would not do under the particular circumstances, or the failure to do what such a person
would do under the circumstances.

Restatement (Second) of Torts 283 CONDUCT OF A REASONABLE MAN; THE STANDARD

Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a
reasonable man under the circumstances.
Elements of Negligence
DUTY: had a duty to exercise reasonable care
BREACH OF DUTY: failed to exercise reasonable care
CAUSE-IN-FACT: but for s breach of duty, would not have been harmed
PROXIMATE CAUSE: it was foreseeable that s failure to exercise reasonable care would cause harm
DAMAGES: suffered a legally cognizable harm
Example While Janay is shopping at PetSmart, she sees her dog Nibs pee on the floor. Janay resoinds by
walking away from the mess. Gena, another customer, slips on it and is injured. Gena sues PetSmart for
negligence in failing to clean up the spill or put up a wet floor sign. On PetSmarts Motion to Dismiss, the
company will lose:
Duty: PetSmart () owed Gena () a duty because she is an invitee (there for a business purpose).
Landowners are liable to invitees for failing to discover dangers and fix them (duty to inspect).
Breach of Duty: Possibly enough to pass Motion to Dismiss); at trial, this is a question for the jury!
Cause-in-Fact: would not be injured but for s failing to clean up or warn about pee
Proximate Cause: A slip-and-fall is exactly the kind of injury one would expect from this
Damages: Yes; is injured
Williams v. Hays (1899)
FACTS: was captain a ship caught in torm; stayed on deck for 48 hours steering ship; eventually retired to cabin, took quinine for
fever/malaria, and went to sleep; a few hours later, crew woke for help steering; tug passed, but refused help; second tug, same
result; was acting drunk/insane; ship crashed; remembered nothing; owner of ship () brought suit against for carelessness and
misconduct
PH: jury instructed that if was insane, no liability (if sane, liability)trial court found for ; appealed; App ct reversed
ISSUE: Does insanity furnish a defense for s claim?
RULE: A sane person is just as responsible for his torts as a sane personinsanity does not excuse negligence.
HOLDING: No. Reversed.

NOTES: This case was retried and found for , as the jury found it was the storm itself that caused s insanity, as no careful and
prudent man could have done more than to care for his ship until overcome with physical and mental exhaustionto do more was

Suppose a surgeon at an understaffed hospital performs surgery for 48 consecutive hours; she then capitulates to
exhaustion or madness and commits an act of malpractice. This would not likely limit her liability, as it would give all
hospitals incentive to lower the standard of care. However, medical errors under circumstances of disaster will answer
to a lower standard of care. (Example: Hurricance Katrina)

27

Vaughn v. Menlove (1837)

FACTS: built haystack near edge of property; his
neighbor said it was a fire hazard; said he would chance
it; built a chimney through it; caught fire, burned s
barns/stables, spread to s property and destroyed a cottage
PH: jury verdict for , App. Ct. affirmed
ISSUE: Should be held to standard of care of
reasonable man or of the reasonable moron?
RULE: is bound to use reasonable caution as a prudent
person would exercise under the circumstances.
HOLDING: Jury instructed correctly, affirmed.

NOTES: holding all capable people to same standard of

reasonableness creates incentive for people to conform

Lynch v. Rosenthal (1965)

FACTS: was mentally challenged; lived on s farm for years
doing chores; helped pick corn; stumbled into picker, right arm
got caught, causing serious injuries
PH: jury verdict for ; appealed; App. Ct. affirmed
ISSUE: Was negligent for not warning of danger?
HOLDING: Yes.

NOTES: differs from Vaughan could not appreciate the

danger, no warning was given; medical evidence showed could
understand warning, but would have understood if had warned
him; no contributory negligence, as cannot be held to standard
of reasonable man due to mental incapacity; hiring people with
mental disabilities creates higher standard of care.

Restatement (Second) of Torts 289, Comment n. INFERIOR QUALITIES

Allowance made for inferior qualities and standard is then that of a reasonable man with the same qualities.
Applies to children, ill, physically disabledallowances made for disabilities.
Except in such cases, must still conform to standards of societyif cannot, must make good for damage he
does.
Weirs v. Jones County (1892)
FACTS: county condemned unsafe bridge; posted signs at each end; could not read English and drove over; collapsed, lost
wagon and horse; sued to recover for loss of animal and damage to wagon
PH: jury verdict for ; App. Ct. affirmed
ISSUE: Is not being able to read the language an excuse to not take ordinary care?
HOLDING: No. Jury was instructed correctly.

NOTES: fact that he could not read English should not require to put up barriers or to post signs in every language;
cannot be allowed to claim that the same standard the general population is held to does not apply to him.

Weirs differs from Lynch, as the in the latter case had a defect that excused him from being able to act prudently, but
in the former case, was aware of his limitations and thus should modify his own conduct accordingly (failure to do
so is negligent). Also, the in Lynch failed to warn , whereas in Weirs took all reasonable precautions.
Padula v. New York (1979)
FACTS: heroin addicts in rehab find chemical in print shop with warnings all over it; know its dangerous, but drink it
anyway; one dies, one goes blind; living one sued guards for negligence for allowing them in, not stopping the drinking
PH: judge gave verdict to ; SC affirmed
ISSUE: Are heroin addicts held to the same standard of reasonableness?
HOLDING: No. Verdict for affirmed.

NOTES: addicts lack the ability to control certain kinds of actions where they could get high, but might be dangerous; court would be less
likely to rule for addicts if and not ; was in s custody who had duty to protect and keep chemicals like these out of reach of addicts

28

Typically, the standard of care is an objective standard. A stupid person is held to the reasonable care standard, but
when has a defect and knows of it, has duty to protect, as cannot be held to reasonable care standard. If knows
of his own defect, it is not an excuseneeds to take precautions to compensate.
Fredericks v. Castora (1976)
FACTS: in car that was hit by two trucks (); sued for negligence
ISSUE: Should professional truck drivers with much experience be held to a higher standard of care than the average driver?
HOLDING: No. Verdict for

NOTES: changing standard based on experience would be make having reasonably uniform standard impossible
Restatement (Second) of Torts 299A. UNDERTAKING IN PROFESSION OR TRADE
Unless he represents that he has greater or less skill knowledge, one who undertakes to render services in the
practice or a profession or trade is required to exercise the skill and knowledge normally possess by members of
that profession or trade in good standing in similar communities.
Comment b. Profession or trade. The sectionapplies to any person who undertakes to render services
to another in the practice of a profession, such as that of a physician or a surgeon, dentist, pharmacist,
occultist, attorney, accountant, or engineer. It applies also to any person who undertakes to render services
to others in the practice of a skilled trade, such as that of airplane pilot, precision machinist, electrician,
carpenter, blacksmith, or plumber
Kerr v. Connecticut (1892)
FACTS: deaf walking home next to trolley line; trolley
sounded horn, didnt hear; was hit and died; family
sued
PH: trial ct found contributory neg on ; SC affirmed
ISSUE: Is neg. even though used reasonable care?
RULE: Those aware of their defects have duty to take precautions.
HOLDING: No. Law requires use reasonable care that
a man under his circumstances (deaf) would.
NOTES: was aware of his deafness; had duty to
Davis v. Feinstein (1952)
FACTS: blind walking along with cane and fell in s
open cellar; claimed was the negligent one
PH: jury for ; App. Ct. affirmed
ISSUE: Should blind people be contributorily neg. when
exercising due care?
RULE: Those aware of their defects have duty to take precautions.
HOLDING: No.

NOTES: exercised the due care a blind person would,

using a cane to discern obstacles in his path

Kerr did not do what reasonable deaf man would, while Davis took the due care a blind man would.
Restatement (Second) of Torts 298. WANT OF REASONABLE CARE
Comment d. Necessity that actor employ competence available. The actor must utilize with reasonable
attention and caution not only those qualities and facilities which as a reasonable man he is required to have,
but also those superior qualities and facilities which he himself has. Thus a superior vision may enable the
actor, if he pays reasonable attention, to perceive dangers which a man possessing only normal vision would
not perceive, or his supernormal physical strength may enable him to avoid dangers which a man of normal
strength could not avoid.
Illustration 1. A is driving a pair of well-broken horses. They become frightened and run away. A is unusually
strong and could by the exercise of reasonable care in using his full muscular power bring the horses under
control. He is negligent toward anyone run down by the horses if he fails to do so, although a man of ordinary
muscular strength would be unable to control the horses.
29

Arroyo v. US (2011) SOCIAL UTILITY But this motivational system works only if potential injurers and
potential victims are capable of exercising the care of the average person, or if incapable can at least avoid situations
in which they are likely to cause or suffer injury. . . But a blind person, no matter how careful he tries to be, cannot
cross a street as safely as a sighted person unless he can afford to hire an escort. Holding him to the standard of care
of a sighted person would just discourage him from going out of his house, and this is thought an excessive cost (in
contrast to forbidding blind people to drive); it could lead to levels of social isolation that are no longer found
acceptable.
Short people (Mahan v. State): It is true that persons of small stature may and do lawfully operate automobiles, but if
that condition makes it more difficult for them to discover the presence of children, or objects in the highway, it
imposes upon them the duty of exercising greater watchfulness to avoid injuring others also in the lawful use of the
highway than would be necessary for one of normal stature.
Purtle v. Shelton (1971)
FACTS: 17-year-old shot 16-year-old hunting buddy
()
ISSUE: Is a minor required to use same care as adult with
rifle?
RULE: For child to be held to standard of care as adult, must be
participating in dangerous activity normally engaged in by adults.
HOLDING: No.

NOTES: just because hunting is dangerous, it is not

adult; kids go hunting all the time; Ct of App said

Dunn v. Teti (1979)

FACTS: 6-year-old hit another 6-year-old with a stick
ISSUE: Does 6-years-old fall below minimum neg. age?
RULE: Minors under age of 7 are incapable of negligence.
HOLDING: Yes.

NOTES: standard of care for a child is not the same as an

adult, it is the measure of care of other minors of like
age, experience, capacity, and development would
ordinarily exercise under same circumstances; varies
from age to age, but typically those under 5 cannot ever

Remember! A minor can only be held to an adult standard of care if doing something that is both dangerous to others
and normally only engaged in by adults!
Courts typically follow these guidelines
with potentially negligent minors.

30

ELEMENTS OF NEGLIGENCE REVISITED

NEGLIGENCE STANDARD IN A NUTSHELL

The standard of care is the caution that a person of ordinary prudence would observe.
There are exceptions to the reasonable person standard:
Age: standard is the degree of care exercised by the ordinary child of like age, intelligence, experience
Exception: adult activities; minor held to adult standard if engaging in an activity that is both
dangerous to others and normally engaged in only by adults; policy behind this is to deter
children from engaging in these kinds of activities
Dellwo v. Pearson: fishing on lake with 50 yards of line trailing behind boat; , a 12-yearold-boy, ran over the line in his motorboat, causing fishing reel to pull loose, hit in the eye
o In the operation of an automobile, airplane, or powerboat, a minor is to be held to
the same standard of care as an adult.
o An outside party cannot know whether an approaching car is driven by minor, so the outside
party could not take the precautionary action one would if a child is swinging a baseball bat.
Dellwo is distinct from Purtle v. Shelton (see previous page), where the teenager was not held to the
adult standard of care because hunting may be dangerous, but is not solely an adult activity.
Physical Disability: standard is the degree of care exercised by ordinary person of similar ability.
Knowledge & Skills: if has knowledge and skills that exceed those possessed by most others, these
skills or knowledge can be taken into account in determining whether has behaved as a reasonably
careful person (R3d 12). Individuals required to utilize superior qualities, abilities,
instrumentalities to prevent harm (strength, vision, car brakes, etc).
Characteristics that DO NOT lower the standard of care:
Poor intelligence (Vaughn v. Menlove)
Culture
Lack of knowledge of English (Weirs v. Jones County)
Voluntarily intoxication and insanity (Williams v. Hays first trial)

31

Remember! When Williams v. Hays was tried a second time, it was found s condition arose in
the process of taking reasonable care and was, therefore, not held liable for negligence, as he
cared for the vessel until overcome with exhaustion impossible to do anything more!
NEGLIGENCE: RISKS AND PRECAUTIONS

The Hand Formula: Liability when the burden/cost of taking precaution is less than the expected cost of not taking
it.
B < PL = Liability
o B = burden or expense of adequate precautions
o P = probability of an accident occurring
o L = magnitude of harm
Goes to the standard of care: What precautions would a reasonable person have taken? Think of the
precaution(s) might have taken to reduce the likelihood of the accident and determine whether should have
taken precaution.
Remember! The Hand Formula is not law, nor is it used to instruct juries; it is simply a way of analyzing
cost.
Advantages of the Hand Formula:
o Structured analysis
o Formalizes institutions by drawing attn
to benefits of using reasonable care
o Reduces uncertainty
o Avoids allocation of resources to
non-beneficial undertakings
o Takes risks into account

Disadvantages of the Hand Formula:

o Requires data to be applied strictly,
rather than intuitively.
o Difficult to apply when variables are
hard to quantify
o Overlooks distributional considerations
(there
may
be
a
group
disproportionately harmed by certain
type of negligence)
o Does not account for social utility in
many casesonly
considers
efficiency, even at the expense of others
(company calculates adding safety

32

United States v. Carroll Towing (1947)

FACTS: Conners owned ship Anna C, chartered her to Penn, which included services of bargee between 8am-5pm; Penn moved ship,
loaded with flour, to end of pier in harbor; tug employees improperly tied lines to Conners ship, it broke away from pier and hit a
tanker, puncturing Anna C; bargee was supposed to be on ship, but was not; leak was discovered too late, ship sank.
ISSUE: Was Conners contributorily negligent, since bargee was not onboard?
HOLDING: Yes

NOTES: this is where Judge Hand introduced the Hand Formula (burden of having bargee on board was lower than the cost of
injuries); court found it was a fair requirement that Conners have bargee on board during working hours; no excuse for bargee to be
gonehad he been there, could have gotten help for damage

Adams v. Bullock (1919)

FACTS: ran trolley line that crossed pedestrian bridge, children played there; 12-year-old came across swinging wire, which came
into contact with trolley wire; was shocked and burned; parapet 18 wide protected bridge; trolley wire strung 48 below parapet
PH: trial court ruled for ; appealed
ISSUE: Was negligent in hanging wire low enough and not insulating?
HOLDING: No; App. Ct. reversed, said trial court erred in verdict

NOTES: no evidence ignored duty to take all precautions to minimize perils; trolley wire placed so nobody standing on bridge/bending
over parapet could reach; could not have predicted point where accident like this would occur; no special danger here warned they would
need special precautions; insulation of all wires is impossible; Wright: trolley socially valuable; community decided risks were worth

Professor Richard Wright takes a different view from the Hand Formula. His theory suggests that:
It is not negligent to impose significant risks on others only when:
1) s are participating in the activity that is generating the risk, or
**If answering exam question
2) the activity being engaged in is socially valuable.
with Hand Formula, be sure to
give
Hand
Formula
Even then, risks imposed on others are only reasonable if the risks are:
calculation and the Wright
not too serious;
approach!**
necessary/unavoidable;
reduced to the maximum extent feasible without causing unacceptable loss in the desired benefit; and
significantly outweighed by the desired benefit.
Bolton v. Stone (1951)
FACTS: lived next to s cricket grounds, which were enclosed by 7 fence; hit with ball in her yard; evidence showed that on rare
occasions, balls had been hit over fence, but that none had caused injury before
ISSUE: Was liable for balls hit out of grounds, even though they had the 7 fence in place?
HOLDING: No. NL
NOTES: law of negligence more concerned with what is culpable than what is fair not guilty of culpable act or omission;
reasonable man would not have felt himself called on to either abandon the use of the grounds or increase the fence height
APPLYING HAND FORMULA: B was too higheven if L was high, P was low (no accidents like this before)

DISSENT: should not only take into account the remoteness of such an accident, but also the seriousness of consequences; would
not be right to taken into account difficulty of remedial measuresif cricket cannot be played safely, should not be played there.

33

Eckert v. Long Island Railroad (1871)

FACTS: was standing 50 from railroad tracks; train
coming at 12-20 mph; no whistle; thickly populated area; 2year-old sitting on tracks; ran to save childsaved child,
but died
ISSUE: Was it contributory negligence for to save child?
HOLDING: No. Ruled for , App. Ct. affirmed.

NOTES: when exposure to harm is for purpose of saving life,

it is not wrongful, thus not negligent (unless reckless); not
wrongful to take every effort to save child with reasonable
regard for own safety, even if risk to rescuer is greater than
risk to one being rescued; if believed he could save child
without losing his own life, not negligent to make attempt; no
time to deliberate here; necessity of risk, as child could not
save himselfrisk of child being killed higher than s risk of
being killed; railroad would have probably hired to save
child if had been the circumstance (cheaper alternative)

The Margharita (1905)

FACTS: was sailor on cargo ship; fell overboard and leg was
bitten off; nearest surgeon would have taken 3 weeks to get to;
ship did not stop, kept going for 3 months; was in agony on the
trip, but in good shape when returned, had small bit of nub
amputated
ISSUE: Was negligent for not seeking aid for ?
HOLDING: No. NL

NOTES: master not absolutely bound to go out of way for

if would cause serious injury to cargo due to delay;
humanity weighed less with balance of loss ship would have
incurred; before they could have reached surgeon,
dangerous stage of injury had passedleg could not have
been saved anyway; only injury was prolonged suffering;
sea is always dangerous; duty of master extends only where
permanent injuries or disabilities result from failure to
pursue course

Davis v. Consolidated Rail (1986)

FACTS: was train car inspector; drove unmarked van to rail yard; employee had seen sitting in his van, but did not know who
was and did nothing; began working under train, but did not hang customary blue flag; train began to move without blowing whistle,
lost most of his legs; sued for negligence, as nobody mentioned strange van near tracks, nobody inspected under trains, no
whistle
ISSUE: Was liable, even if did not hang the customary blue flag?
HOLDING: Yes.

NOTES: blowing the horn would have been a tiny burden that would have greatly reduced the risk of all kinds of accidents.
Restatement (Third) of Torts 3. NEGLIGENCE
A person acts with negligence if the person does not exercise reasonable care under all the
circumstances. Primary factors to consider in ascertaining whether the persons conduct lacks reasonable
care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that
may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
Compliance errors: failures to comply with an agreed upon standard of care; typically involve momentary
failures to take repetitive precautions (driver forgetting to look both was at intersection); occur frequently

34

NEGLIGENCE: CUSTOM

Restatement (Second) of Torts 295A. CUSTOM

In determining whether conduct is negligent, the customs of the community, or of others under like
circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not
follow them.
Comment b. Relevance of custom. If the actor does what others do under like circumstances, there is at
least a possible inference that he is conforming to the community standard of reasonable conduct; and if
he does not do what others do, there is a possible inference that he is not so conforming.
Comment c. When custom is not controlling (condensed).
1. Customs that may be reasonable under ordinary circumstances can be unreasonable in
light of specific facts.
2. Some customs may be inherently negligent.
3. A rule that following customs always establishes non-negligence would not provide
incentives to improve safety.
Whenever the particular circumstances . . . are such that a reasonable man would not conform to
the custom, the actor may be found negligent in conforming to it; and whenever a reasonable man
would depart from the custom, the actor may be found not to be negligent in so departing.
Custom is not always conclusive: could be a bad custom; man no longer be reasonable standard
The TJ Hooper (1932)
FACTS: s barges towed by s tugboats that had non
working radios; caught in freak storm, had no warning; all
were lost in the storm
ISSUE: Can be liable for not equipping radios, even though
was not the custom to do so?
HOLDING: Yes. L.
NOTES: may not be custom, but others in industry found
radios necessary; precaution was so imperative that
universal disregard will not excuse its omission; had tugs
had radios, would have gotten weather report
HAND FORMULA: having radios on tugs is a small B
which reduces PL is very high
Ellis v. Louisville and Nashville Ry (1952)
FACTS: s job caused him to breathe a lot of dust, was not
equipped with mask; got silicosis 25 years later from dust
ISSUE: Was negligent in not providing masks when it was
not the custom in the industry to do so?
HOLDING: No. NL.

NOTES: one not considered negligent in acts which conform

to common practice that has existed for years without injury;
no evidence at this time that doing the job without a mask
could lead to future health problems; was no evidence
showing a want to due care; practice across railroads was to
not furnish masks to men doing the same job

35

Ellis is distinguishable from Hooper because of the issue of foreseeability; in Hooper, it was foreseeable that radios
could have prevented exactly what happened, but in Ellis, everyone did the job the same way and it was
unforeseeable that it would cause Silicosis, especially so many years later.
MacDougall v. Penn. Power & Light (1933)
FACTS: was plumber hired to repair rain spout on roof; maintained unmarked fuse box on edge of roof, which conducted
electricity in wet weather; bumped head on box in the rain, was electrocuted, and fell off the roof, sustaining various injuries
ISSUE: Was liable for placing box in customary place for the industry and not marking it with a warning sign?
HOLDING: Yes.

NOTES: even if it followed custom, standard of due care is that which a reasonable person would exercise under the
circumstances; if box must be where people are likely to come into contact with it, there should be adequate warning given of its

In MacDougall, the PL was high enough to justify the precautions requestedthere was also no contractual
relationship or market relationship to keep safe, so the court provided a remedy where the market did not. In Ellis,
the PL was not high and there was a contractual relationship between and could have negotiated pay and
working conditions.
Rodi Yachts v. National Marine (1993)
FACTS: sent barge to TDIs dock to unload; s crew lashed barge and left; days later, before TDI unloaded, ship broke away and
caused more then $100k in damages to other dock and two boats
ISSUE: Were both and TDI at fault or just TDI?
HOLDING: Remanded for new trial. Compliance with custom is not a defense to a tort claim

NOTES: owners of damaged property have no contractual relationship to focus instead on the duties and TDI owed to each
other; both face potential liability to third parties; unable to determine what custom was broken; court needs to determine to see who is

Custom usually comes into play when parties are contractually obligated to one another!
NEGLIGENCE: CUSTOM IN MEDICAL MALPRACTICE
Brune v. Belinkoff (1968)
FACTS: dr gave 8mg of pontocaine to deliver baby, which
was custom dose in town50 miles away in Boston, customary
dose was 5mg or less; fell when she tried to get out of bed
ISSUE: Should the locality rule be used to determine
customary practice in the area and limit liability?
HOLDING: No. liable

NOTES: town was 100,000 people and only 50 miles from

Boston, most likely not lacking in average resources or
better; could have easily known of Bostons practices and
adopted; locality rule used in very remote, rural situations

Gambill v. Stroud (1976)

FACTS: small town Arkansas; surgeon operated on s
wife; complications with anesthesia caused operation to be
aborted, cardiac arrest, brain damage; said was product of
s neg.
ISSUE: Should the locality rule be used to determine
customary practice in the area and limit liability?
HOLDING: Yes. not liable

NOTES: tried to say locality rule was erroneous, but SC

affirmed, saying the standard is not limited to the town, but to
the persons of similar practice in similar localities; at this

While the doctor in Brune practiced in a town near a major medical hub (Boston), the doctor in Gambill practiced in a
rural area and thus would have less access and a modified standard of care based on the locality rule.

36

Johnson v. Wills Memorial Hospital and Nursing Home (1986)

FACTS: s decedent was patient at s hospital, was behaving strangely and had to be forcibly returned to room and sedated; orderly
stationed outside the room; 3 hours later, orderly reported room empty, he had jumped out window; found frozen to death 8 hours later
ISSUE: Should the locality rule be used to determine customary practice in the area and limit liability?
HOLDING: Yes. not liable

NOTES: court determined locality rule is appropriate in regards to adequacy of facilities; not reasonable to hold hospitals in small poor
communities to same standard as big nice onescould make poor hospitals reluctant to provide care; information has become cheap,
but facilities have notpersonnel are considered a part of the facilities

The effect of the locality rule is to lower the standard of care in smaller towns; it is very rare to apply strict locality
in modern times. It has no effect on large, advanced cities and it makes it difficult to find an expert witness in small
areas that will testify as to the standard of care in that area.
In modern times, courts follow a less stringent locality standard modified locality which eliminates the problem of
finding expert witnesses.

CUSTOM IN LEGAL MALPRACTICE

In legal malpractice, it is easier for a jury to understand what a reasonable lawyer would do, but is still more complex
than the reasonable person Custom can still come into play!
Cook v. Iron (1966)
FACTS: tripped and fell in El Paso; were three possible s to sue, lawyer only sued one; lost case and sued lawyer (); got an
expert witness to prove malpractice, an attorney from another town who said failed to exercise standard of care average lawyer
would
ISSUE: Is s expert qualified to testify on what El Paso lawyer should have done, when expert is from Alpine?
HOLDING: No. not liable.

NOTES: Alpine was 220 miles away with a population of 6k; population of El Paso was 314k; expert does not know local situation;

benefits from a national standard, while benefits from the locality rule!

NEGLIGENCE PER SE: court determines violated a rule; violation establishes s negligence as a matter of law

As is matter of law, judge decides.

Rules violated can be statutory or judge-made.
Courts may treat such violations of rules as mere evidence of negligence for the jury to consideror as evidence of
no negligence at all.
General rule: an unexcused violation of a stature constitutes negligence per se
(1) Standing: is from class of persons the statute was intended to protect
(2) Foreseeability: the statute was designed to protect against the type of harm at issue risk that gets
realized in the case must be the type of risk the statute was intended to prevent
Policy justifications: legislatures thought to be more representative than juries; promotion of certainty in the
law (too much uncertainty if juries overrule legislature); the reasonable person follows the law
Exceptions to negligence per se:
statute is merely administrative (i.e. driving without a license does not automatically prove a breach)
37

 a child violated the statute

the breach was the more prudent course of conduct
despite reasonable diligence, could not comply (i.e. bar serves alcohol to minor with realistic fake
ID)
Martin v. Herzog (1920)
FACTS: and husband driving buggy with no lights (illegal); hit
by non-speeding car that had lights on, but was just a bit over
center line (illegal); husband was killed; sued, said negligent
in driving over center line
PH: trial ct found for , App Ct. reversed; SC affirmed
reversal
ISSUE: Does jury have the power to relax the duty that a
highway traveler owes to his fellow travelers under statute?
HOLDING: No.

NOTES: to omit willfully or heedlessly safeguards put in

place by the law for the safety of all falls short of the
diligence to which those in society are under a duty to
conform; not having the lights on the buggy was merely a
breach of standard of careburden shifts to to show that
not having lights was not cause of accident, which did not
do; accident was precisely within the scope of purpose of

Tedla v. Ellman (1939)

FACTS: walking on wrong side of highway (no footpaths on
either side), wheeling carriages of junk; was 6pm on Sunday and
that side of highway had less traffic; hit and brother; brother
died, injured; policeman agreed was safer to walk on wrong
side
PH: trial ct found for , App Ct. affirmed
ISSUE: Did walking on wrong side of highway make
negligent as a matter of law?
HOLDING: No.

NOTES: cannot reasonably assume the legislature intended

the statute would have to be observed when it would put
pedestrians in more danger; violation was reasonable;
deviation without good cause would have been wrong

Tingle v. Chicago B&Q (1882)

FACTS: s train hit s cow; sued , alleging
negligencestate law prohibited trains on Sunday
ISSUE: Was negligent per se?
HOLDING: No.

NOTES: did not claim train operated negligently;

cause of injury was accident, not operation of train;
purpose of no Sunday rule was not to protect
animals (outside the scope of harms)

White v. Levarn (1918)

FACTS: hunting on Sunday (illegal); shot
thinking his hat was a squirrel; sued, hunting illegal
on Sunday
ISSUE: Was negligent per se?
HOLDING: No.

NOTES: unlawful by statute, shooting was

therefore an unlawful act by ; consent to assault no
justification, since the state was wronged; evidence
outside scopejury can take into account to

Restatement (Second) of Torts 286

WHEN STANDARD OF CONDUCT DEFINED BY
LEGISLATURE/REGULATION WILL BE ADOPTED
The court may adopt as to 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:
(a) to protect a class of persons which excludes the one
whose interest is invaded, and
(b) to protect the particular interest which is invaded,
and
(c) to protect against the kind of harm which has resulted,
and
(d) to protect that interest against the particular hazard
from which the harm results.
If s violation is within the scope of harms statute addresses:
38

s violation establishes neg per seestablishes prima

facie case that breached standard of care; that question is
not given to the jury
if can establish the other elements of negligence, bears
the burden of showing his violation was excused
If s violation is outside the scope of harms statute addresses:
the violation does not establish a prima facie case that breached the standard of care as a matter of law
but s violation may still be admissible under relevant evidence that the jury may consider in determining
whether breached the standard of care
Restatement (Second) of Torts 288A. EXCUSED VIOLATION
Comment f. Knowledge. Where the actor neither knows nor should know of any occasion or necessity for action
in compliance with the legislation or regulation, his violation of it will ordinarily be excused.
Illustration 3. A statute provides that no vehicle shall be driven on the public highway at night without
front and rear lights. While A is driving on the highway at night his rear light goes out because of the
failure of an electric bulb. A has used all reasonable diligence and care in the inspection of his car, and is
unaware that the light has gone out. Before he has had any reasonable opportunity to discover it, the
absence of the light causes a collision with B's car, approaching from the rear, in which B is injured. A is
not liable to B on the basis of the violation of the statute.
Controlling the Jury:
The court could award judgment to as a matter of law although rarely!
is assigned the burden of proving all elements of case, including s failure to use reasonable care.
Determination that failed to act reasonably usually has to come from a jury.
Doctrine of negligence per se is an exception to the general rules.
Decisions made as matter of law must come from judge.
A finding of negligence per se is distinctive and important, not just because ends up being negligent, but
because this result is reached without a jury.
Selger v. Steven Brothers (1990)
FACTS: dog poop regularly accumulated on sidewalk in front of s business, which s employees usually cleaned up each morning;
one day, manager saw poop and delayed in telling worker to clean it up; slipped in poop, hurt recent hip implant, needed surgery;
sued for negligence, as the law was that no one shall neglect to keep the sidewalk in front of his place in clean and wholesome
condition
ISSUE: Was negligent per se, as was a city statute?
HOLDING: No. NL

NOTES: the duty was owed to the city an did not create a standard of care owed to traveling public (therefore no negligence per
se); city did not intend for rule to keep sidewalk in front of business clean to put people on the hook for $400k in damages; dogs

39

NEGLIGENCE: RES IPSA LIQUOTUR The thing speaks for itself

From the happening of an accident and the defendants relationship to it, it can be presumed that
1. The harm-causing event was probably the result of negligence, and
2. The defendant was probably the culpable party
s have to show:
1. That there was an accident;
2. That the thing or instrumentality which caused the accident was at the time of and prior thereto under the
exclusive control and management of the defendant;
3. That the accident was such that in the ordinary course of events, the defendant using ordinary care, the
accident would not have happened.
First prong:
In Hand Formula terms, res ipsa loquitur reflects a judgment that:
o The expected cost (PL) of this kind of accident is so high that must use all precautions (B)
necessary to ensure that it doesnt happen.
o So if this kind of accident does occur, it is prima facie evidence that breached the standard of care.
Example: Construction wedge
o P: pretty high
o L: lower than getting hit by barrel
o B: cost of taking care so tools dont fall and hit anyone is pretty high (excessive)
o Optimal # of falling wedges is very low
Second prong:
More than one can have exclusive control
But when multiple s have dependent control, that argument fails.
o Example: the 19 contractors
o Exception: Ybarra (unconscious surgery patient; to prevent silence, all needed to be using
standard of care)
Caused by negligence? Inference of negligence.
Particular caused inference of negligence
only presumed negligent; if can prove not negligent, then wont be held liable
If s prima facie case is met, burden shifts to
Abnormal injury: The injury must be of a kind that ordinarily does not result without negligence
Byrne v. Boadle (1863)
FACTS: was passing by the s warehouse when a barrel
of flour fell on him from a window above. had no
evidence as to exactly how it happened.
PH: Trial ct. for ; reversed on appeal
ISSUE: Can be held liable for accident w/o direct
evidence of negligence?
HOLDING: Yes.
REASONING: The mere fact of the accident having
occurred is evidence of negligence. If there are any facts
inconsistent with negligence it is for to prove them.
has better access to the evidence.

40

Combustion Engineering Co. v. Hunsberger

FACTS: Wedge fell from shaft and hit worker.
PH: Trial ct for . Reversed for .
ISSUE: Injury from to show neg. on part of ?
HOLDING: No.
REASONING: When construction objects fall outside of the
construction zone, negligence can usually be assumed.
When the objects fall within a construction zone it cannot
be presumed to result from negligence because it cannot
be supposed that such a thing is probably the result of
negligence every time it occurs. Law doesnt require
perfection, just reasonable care.

HAND FORMULA:
P: likelihood of barrel falling, causing harm: high
L: how much someone will get hurt: high
B: enough care in handling/barrier: not very high
*Shouldnt happen if using reasonable care

P: falling wedge in con. site will hit someone: substantial

L: how much someone could get hurt: decent
B: bolt tools down/fence/tools on chains: high cost
*Cost > probability of an accident

B>PL

Exclusive control: The instrumentality causing the injury must have been in s exclusive control.
Byrne v. Boadle
o Modern standard of exclusive control
o Must show that D is likely to be the only one to have undertaken or omitted the relevant acts
Widespread public access
o When numerous others have access o the place of the accident or the instrument involved, res ipsa is
generally unavailable
Larson v. Francis Hotel
FACTS: injured by an armchair that presumably fell out of
the hotel window.
ISSUE: Does res ipsa apply?
HOLDING: No. NL.

Connolly v. Nicollet Hotel

FACTS: hit in the eye with a mud like substance

National Junior Chamber of Commerce convention case.
HOLDING: NL.
RULE: Negligence may be inferred from all the facts and
surrounding circumstances, and where the evidence of
such facts and circumstance is such as to take the case out
of the realm of conjecture and into the field of legitimate
inference from established facts, a prima facie case is

REASONING: didnt have exclusive control. didn't

meet evidentiary burden (see res ipsa test above). This

accident is one that might ordinarily happen despite the
fact that used reasonable care and was totally free from

Multiple exception: Can use the doctrine to establish liability of multiple s in certain limited situations.

Brauner v. Peterson
FACTS: s cow escaped and entered roadway. drove his
car into cow. had no evidence to prove how the cow
escaped from s prop.
HOLDING: NL
RULE: The event must be of a kind not ordinarily occurring
in the absence of someones neg.
REASONING: Cow can readily escape from perfectly
adequate confines. The expected cost of a cow wandering
off is pretty low. Not enough to create assumption of neg.

Guthrie v. Powell
Bondfalls
Wolf
v.v.American
Otis
Elevator
Tract
Co.
Society
FACTS: Cow
through
2nd story
floor, injures .

FACTS:

was
working
as athat
contractor
when
a brick
FACTS:
was
on an elevator
went
intofor
a free
fall. Both
Otis
HOLDING:
Ct. said
appropriate
case
for
res
ipsa.
fell
from
the
construction
site
and
struck
him
on
the
head.
and
Adolphus
were
in
charge
of
maintaining
the
elevator.

had
REASONING: Cost of potential accident is so high that
No
proof ofaswho
dropped
the but
brick
orboth.
from where it fell.
no
evidence
to
who
was
neg.,
sued
should have taken all possible precautions. The right
sued 2/19Both
subcontractors.
HOLDING:
liable. the floor is zero.
number
of cows falling
through
HOLDING:
NL
REASONING:
s
hadw/joint
control
of the elevator.
Both
Need res
ipsa b/c it interacts
Hand
formula
The
REASONING:
Rescontrol.
ipsa loquitur
applies,here.
but
some
proof
shared
exclusive
Instrumentality
has
to
be
under
accident must
wouldnt
havetohappened
had been using
be given
exclusive
control
ofenable
! the jury to point out or identify
reasonable
care.
the author of the wrong. Each of the 19 contractors
Distinct
from Wolf, where subcontractors did not have
responsible only for the neg. of his own employees, not
exclusive
control. of the other contractors. Better for
for the employees

Haasman v. Pacific Alaska Air Express

get no redress than to hold innocent
FACTS: vanished with s plane. had no proof of negligence. did not knowinjured
how theparty
plane to
vanished.
parties
liable.
HOLDING: L
REASONING: The rule precluding the application of the doctrine where the s knowledge is equal to that of the [] is applied
to cases where the has equal knowledge or where knowledge of the cause is equally accessible to the not to cases in which
there is an equality of ignorance as in the instant case.
Ybarra v. Spanguard
FACTS: was injured during a surgery. The injury could have
been the result of any one of the s negligence. did no
know whose negligence caused the injury. sued all of the
individuals involved in the surgery.
HOLDING: Liability on all.
REASONING: Where a receives unusual injuries while
unconscious and in the course of medical treatment, all those
s who had any control over his body or the
instrumentalities which might have caused the injuries may
properly be called upon to meet the inference of negligence
by giving an explanation of their conduct. And Without the
aid of the doctrine a patient who received permanent injuries
of a serious character, obviously the result of some ones
negligence would be entirely unable to recover unless the
doctors and nurses in attendance voluntarily chose to
disclose the identity of the negligent person and the facts
establishing liability.

41

Reasons for collective liability

o As an instrumental matter, imposing collective
L can be a good way of identifying perpetrator
delegate task of pinpointing wrongdoers to
group
o Corrective justice ensures s held L in
situations where has difficulty establishing
L
Reasons against collective liability
o Raises moral qualms if you adhere to the idea
that individual should only be responsible for
their own wrongs
o Reason to be skeptical in the modern era with
extensive discovery that res ipsa will do much
marginal good
No contributory negligence injury must not have

DUTIES & LIMITATIONS: DUTIES ARISING FROM AFFIRMATIVE ACTS

Law imposes duties of care on people when they engage in affirmative actsacts that can create risks for others.
An actor ordinarily has a duty to exercise reasonable care when the actors conduct creates a risk of
physical harm.
The claim in negligence is that the had a duty to a duty to use reasonable careand that
breached that duty.
A ordinarily cannot be held liable for simply doing nothing.
The fact that the actor realizes or should realize that action on his part is necessary for anothers aid or
protection does not of itself impose upon him a duty to take such action.
If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable
risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the
risk from taking effect.
If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused
such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a
duty to exercise reasonable care to prevent such further harm.
R2d 7 Duty
(a) An actor ordinarily has a duty to exercise reasonable care when the actors conduct creates a risk of
physical harm.
(b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or
limiting liability in a particular class of cases, a court may decide that the has no duty or that the
ordinary duty of reasonable care requires modification.
R2d 323 Negligent Performance of Undertaking to Render Service
One who undertakes, gratuitously or for consideration, to render services to another which he should
recognize as necessary for the protection of the other's person or things, is subject to liability to the other for
physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
R2d 314 Duty to Act for Protection of Others
The fact that the actor realizes or should realize that action on his part is necessary for anothers aid or
protection does not of itself impose upon him a duty to take such action.
EXAMPLE: A, a strong swimmer, sees B, against whom he has an unreasonable hatred for,
floundering in deep water and obviously unable to swim. Knowing Bs identity, he turns away. A is
not liable to B.
42

R2d 321 Duty to Act When Prior Conduct is Found to be Dangerous

(1) If the actor does an act, and subsequently realizes or should realize that it has created an
unreasonable risk of causing physical harm to another, he is under duty to exercise reasonable care to
prevent the risk from taking effect.
(2) The rule stated in subsection (1) applies even though at the time of the act the actor had no reason to
believe that it would involve such a risk.
R2d 322 Duty to Aid Another Harmed by Actors Conduct
If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused
such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty
to exercise reasonable care to prevent such further harm.
NOTE: even if done innocently, the act that created the circumstance creates a duty for A to help B.
It is important to understand when duties or care exist and when they don't:
Doing nothing, nonfeasancelaw imposes liability
Affirmative acts done carelessly, misfeasances may be held liable

R2d 303 Acts Intended or Likely to Affect the Conduct of the Other, a 3 rd person, or an Animal as to
Involve Unreasonable Risk
An act is negligent if the actor intends it to affect, or realizes or should realize, that it is likely to affect the
conduct of another, a 3rd person or an animal, in such a manner as to create an unreasonable risk of harm to
the other.
General rule: no duty to rescue
Justifications
Reflects tort laws commitment to promoting individual autonomy, not imposing choices on
people libertarianism
Costs of imposing duty to rescue could outweigh the benefits
o Rescuing puts rescuer in danger
o Duty would inhibit action because of fear of liability
o Impossible to sort out who had the duty which of the 30 people on the street had the
duty to keep the person from getting hit by a car?
o Would encourage carelessness on the part of potential victims because they count on
everyone else recuing them
o Might dampen altruism if its required
More problematic in the subclass of cases where rescue would be easy
Slippery slope issue would this principle require is to give all our money to the homeless
Yania v. Bigan
Stangle v. Firemans Fund Insurance Co.
jumped in s trench and drown after taunted him to
Diamond was stolen, asked receptionist to use buildings
jump in. did not attempt to save .
phone to call for help. Receptionist refused. sued
Nobuilding.
liability.
Taunting
and enticing an adult in full mental capacity does
No liability.
not
constitute
actionable
The above rule applies
onlynegligence.
to physical harm, not harm of
A property.
person does
not
have
to rescue another unless the
Not nature ofa duty
true emergency.
person
was
legally
responsible
for putting
themjust
in the
No relationship exists between parties,
they were
in
perilous position.
building conducting their own business.
Distinction from Globe
Globe: Liability
B/c policy concerns
Stangle: No Liability
Line drawing issue
Distinction from Plooth (save boat/fam, so used s dock)
Plooth: life in dangerstate of emergency
Stangle: not true emergencyno physical harm

43

Weirum v. RKO Radio General

The radio station competition car accident case.
Liability.
created an unreasonable risk of harm to . generated
competitive pursuit.
When the defendant is responsible for making the plaintiffs
position worse, i.e. defendant created the risk; the question
of duty is governed by the standards of ordinary care.
Globe Malleable
Soldano
v. ODaniels
v. N.Y. Cent. H.R.R. Co.
would not allow
stop the
someone
train to use
let fire
the phone
truck get
at his
to the
Innfire
in order
at
scall
to
factory.
the police about a man being threatened at the
saloon nearby. was shot and killed.
Liability.
Liability
s conduct of action interfered with the rescue. (Action v.
Duty
to allowInsomeone
to use a Operating
telephone on
in aa public
Inaction).
a public setting.
public portion
street
creates
of
a business
a dutyintothe
getcase
out of
of the
an emergency.
way for a rescue.
The duty would
arise if
andYania
only ifb/cit Globe
were clearly
conveyed
that(refused
there to
Differs
from
is a case
of inaction
exists
an
imminent
danger
of
physical
harm.
Limited
stop). The negligence of not stopping interfered with to
establishments
open
to theissue
public
when
rescue efforts. No
policy
here,
justthey
needare
to open
makefor
way
business.
for fire trucks.

DUTIES & LIMITATIONS: DUTIES ARISING FROM UNDERTAKINGS

volunteered to protect the other from physical harm. Associated to duty to take reasonable care during the
attempted rescue.
R2d 323 Negligent Performance of Undertaking to Render Services
One who undertakes, gratuitously or for consideration, to render services to another which he should
recognize as necessary for the protection of the other's person or things, is subject to liability to the other for
physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
R2d 324 Duty of One Who Takes Charge of Another Who is Helpless
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect
himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the
actor's charge, or
(b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position
than when the actor took charge of him.
When is an undertaking sufficiently extensive to create a duty of care?
A who had no duty to a stranger may acquire a duty by undertaking to provide assistance (voluntarily
assumes responsibility).
ONeil v. Monteflore Hospital
went to hospital but no Dr. was there on s insurance.
Nurse telephoned a Dr. affiliated w/ s insurance plan and
he told to go home and return to the hospital the next
day. wanted immediate help, but the Dr., and hospital
refused to help immediately.
Duty.
A physician, who undertakes to examine or treat a patient
and then abandons him, may be held liable for
malpractice.
If undertakes a rescue, then can be liable for failing to
use reasonable care in undertaking that rescue.

Hurley v. Eddingfield
, a Dr., refused to treat for no apparent reason. died.
No duty.
The physician is not required to practice on other terms than
he may choose to accept.

U.S. v. Lawter
s wife was killed when the coast guard () negligently
performed the rescue.
Liable.
The law imposes an obligation upon everyone who attempts
to do anything, even gratuitously, for another not to injure
him by the negligent performance of that which he has
undertaken.
Placed decedent in worse position & negligently brought
about her death.

44

Frank v. U.S.
was drowned when being rescued by the only available
coast guard boat that happened to be ill equipped for the
rescue. The ship did not succeed in rescuing but did not
make the situation worse off.
Not liable.
A party is not liable for a diligent rescue effort, which is
ineffectual due to lack of adequate equipment, preparation,
or personnel.
No duty b/c undertook to rescue entire ship, did not increase
the risk, and materially changed his position. was not
relying on rescuers at the time of accident.

DUTIES & LIMITATIONS: SPECIAL RELATIONSHIPS

R3d 40 Duty Based on Special Relationship with Other
(a) An actor in a special relationship with another owes the other a duty of reasonable care with regard to
risks that arise within the scope of the relationship.
1. Duty to rescue and assist others
Special relationships:
Carrier-passenger
Landowner-guest
School-student
Employer-employee
Hospital-patient
Prison-prisoner
Petition of Trans-Pacific Fishing and Packing Co.
Three crewmen on fishing boat washed overboard during a storm. Captain did not search for them, engineer advised against it.
Two men were rescued, third never found.
Liability for failure to attempt rescue.
Duty of every ship owner/operator to use every possible available means to rescue from sea any and all persons and members of
crew who may be washed overboard.
Negligent b/c failed to use due care to make any effort to turn around to rescue other than asking engineer, to keep vessel in
condition so it could be turned around to search, to throw out lifeline or flotation device, and to cast into water skiff, debris, life
ring, or other lifesaving equipment.
Special relationship created a duty

2. Duties to Protect Others from Third Parties

Duty is sometimes based on relationship not between and , but between and the party causing harm.
R2d 315 Duty to Control Conduct of 3rd Persons
There is no duty to control the conduct of a 3 rd person as to prevent him from causing physical harm to
another unless
(a) A special relationship exists between the actor and the third person which imposes a duty upon the
actor to control the third persons conduct, or
(b) A special relationship exists between the actor and the other, which gives to the other a right to
protections.
315 Paraphrased
A has no duty to prevent B from harming C unless
(a) As special relationship with B creates a duty to control Bs conduct, or
(b) As special relationship with C gives C a right to As protection.
Tarasoff v. Regents of University of Ca.
a patient killed a daughter. Patient told he intended to
kill s daughter. sued for failure to warn.
Liability (therapist/patient relationship)
R2d 315
When a therapist determines, or pursuant to the standards of
his profession should determine, that his patient presents
a serious danger of violence to another, he incurs an
obligation to use reasonable care to protect the intended
victim against such danger.
Docs required to disclose when becomes necessary in order
to protect welfare of either patient or community. If
disclosure is essential to avert danger, must breach trust.
No social interest to conceal such info, just requiring
reasonable care to disclose such danger.
Benefit of unnecessary warnings outweighs the risk.

Thompson v. County of Alameda

Boy in juvie threatened to kill a boy in the neighborhood. He
was released on parole. He killed s son.
No liability
Those with a special relationship with the third party only have a
duty to warn others of the threat to the third party if the threat is
to a specific person and not to members of the general public.
Warning would do little to stimulate increased safety measures,
they would be difficult to give, might jeopardize rehab
efforts and stigmatize released offenders (state policy favors
release programs).
Distinct from Tarasoff where specific target was known. In
Thompson, the target was broadlarge burden to warn all.
o High B, little to reduce risk

45

Kline v. 1500 Mass. Ave. Corp.

was assaulted and robbed in the hallway of her apartment complex. Others had been assaulted there in the past. sued for failure to
protect.
Duty.
Where the ability of one of the parties to provide for his own protection has been limited in some way by his submission to the control
of the other, a duty should be imposed upon the one possessing control (and thus the power to act) to take reasonable precautions to
protect the other one from assaults by third parties which, at least, could reasonably have been anticipated.
o Exception: If the violence is sudden and unexpected provided that the source of the violence is not an employee of the one in
control.
Landlord has exclusive control over common areas and has a duty to take preventive action. Doesnt seem unfair to place on landlord
duty to take steps that are within his power to minimize the predictable risk to his tenants.
Bradshaw v. Daniel
A man diagnosed by with Rocky Mountain Spotted Fever. He died the next day. A week later, his wife was admitted to a different
hospital and died of Rocky Mountain Spotted Fever. Their son, , sued for failing to warn the wife that she may have had Rocky
Mountain Spotted Fever.
Duty.
If there is a foreseeable risk of harm to an identifiable third party and the defendant has a special relationship with the person that gives
warning of the harm, then the defendant has a duty of care to the third party.
Analogize from Tarasoff:
o Argue for
Specific target identifiable in both
Here, would cost doc nothing to warn wife
Duty here is reasonably narrowduty to warn
Foreseeable risk of harm to identifiable person
o Argue for
No dutywife not his patient
No undertaking to treat wife
Distinguish from Tarasoff:
o No threat to her life at that time
o Doesnt mean she was subjected to tick disease just because her husband was

46

DUTIES ARISING FROM THE OCCUPATION OF LAND

Example

Relationship

Land occupiers duty

Ordinary
trespasser

Class

takes shortcut
across s property

One who enters upon anothers premises without actual

or implied permission

No duty, except refraining from willful

and wanton misconduct

Child
trespasser

takes shortcut
across s property

The younger the child, the more likely attractive

nuisance will be invoked. Child must be so immature
as to be unable to recognize the danger involved.
Presence on land must be foreseeable.

Duty to warn or protect if reasonably

foreseeable risk to child outweighs
expense of eliminating danger and child
would not anticipate danger

Business visitors;
or public if premises
are open to the
public
Social guests;
others present with
owners consent

Enters in answer to the land occupiers express or

implied invitation for their mutual advantage

Duty to make reasonable inspections to

discover non-obvious dangerous
conditions, and warn of or make them
safe
Duty to warn of or make safe known
conditions if non-obvious and
dangerous. No duty to make
inspections.

Invitee

Licensee

Enters with the land occupiers express or implied

permission, for the entrants own purposes, conferring
no benefit to the land occupier

TRESPASSER
Duties to trespassers
Law imposes affirmative obligations on landowners to use care toward those who come onto their property
May be held liable if do nothing when guest is injured by a hazard on the premises as a result
Landowner has no duty to trespassers; dont need to make property safe for them
General rules governing landowners duty of care
Generally no duty
If landowner sees trespasser or knows (or should know) trespassers are likely:
o Duty of ordinary care in carrying out activities
o Maybe duty to warn of hazardous conditions
o In some states, just a general duty to avoid inflicting injury by willful or wanton conduct
R2d 333 General Rule
Except as state in 334-339, a possessor of land is not liable to trespassers for physical harm caused by his
failure to exercise reasonable care
(a) to put the land in a condition reasonably safe for their reception, or
(b) to carry on his activities so as not to endanger them.
R2d 334 Activities Highly Dangerous to Constant Trespassers on Limited Area
A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly
intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to
carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.
R2d 337 Artificial Conditions Highly Dangerous to Known Trespassers
A possessor of land who maintains on the land an artificial condition which involves a risk of death or
serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to
trespassers by his failure to exercise reasonable care to warn them of the condition if
(a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, or
(b) the condition is of such a nature that he has reason to know that the trespasser will not discover it or
realize the risk involved.

47

R2d 339 Artificial Conditions Highly Dangerous to Trespassing Children (paraphrased)

Where trespassing children are injured by an artificial condition on land, the landowner is liable if:
o Landowner knows or should know children are likely to trespass where the condition exists, and
o Landowner knows or should know of the condition and realizes or should realize it poses an
unreasonable threat of serious harm to children, and
o Because of their youth, the children dont understand the risk involved in coming into contact with
the hazard, and
o The utility to the possessor of maintaining the condition and the burden of eliminating the danger
are slight as compared with the risk to children involved, and
o Landowner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Haskins v. Grybko
, while hunting woodchucks on his property,
accidentally shot who was hidden in the bushes.
No liability.
A person is not liable for negligence if the injured
person is a trespasser. He only has a duty to refrain
from intentional injury and from willful, wanton and
reckless conduct.

Herrick v. Wixom
snuck into circus w/o ticket and was injured when
set off a firecracker.
Liability.
Where a trespasser is discovered upon the premises by
the owner or occupant, any negligence resulting in
injury will render the person guilty of negligence
liable to respond in damages.
Presence of was known. No change in burden of
clown to take reasonable care since owed that already
to the audience.

Keffe v. Milwaukee & St. Paul

, 7 and a trespasser, caught his leg in s railroad
turntable. It was not fenced off or anything.
Liability.
If a person knows that something (an artificial
condition) on his property is likely to attract and
injure children then he has a duty to protect them
from that danger. Attractive Nuisance Doctrine.
Cant hold children responsible b/c not expected to
protect themselves; unreasonable to expect parents to
monitor kids all the time

Ryan v. Towar
, a kid, was injured while playing in an abandoned
pump house that he entered through a hole he had
made himself.
No liability.
The defendant is not at fault because they did not lure
the children; were using reasonable care to keep
people away from water wheel; kids broke in.
Cranky judge who hates children case.
More jurisdictions follow Keffe.

INVITEE
R2d 332 Invitee Defined
Public invitee or a business visitor.
o Comment l. If the invitee goes outside of the area of his invitation, he becomes a trespasser or a licensee,
depending upon whether he goes there without the consent of the possessor, or with such consent.
R2d 341A Activities Dangerous to Invitees
A possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to
carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not
discover or realize the danger, or will fail to protect themselves against it.
R2d 343 Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability to his invitees for physical harm caused to his invitees by a
condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it
involves unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
48

(c)

fails to exercise reasonable care to protect them against the danger.

City of Boca Raton v. Mattef

, sign painter, offered to paint the towns water tower. He
was awarded the job, proceeded to paint the tower
before the k signed. fell and died.
No liability.
Since was only a licensee and not an invitee, there was
no duty to inspect the latter to protect him. They only
had to avoid injuring him due to intentional and reckless
acts.
Voluntary undertaking, at most a licensee
City didnt know would be there, nor did they know of
the danger

Rowland v. Christian
cut his hand on a water faucet in s apartment. knew
of the faucet danger but did not warn . argued that
knew of the faucet danger.
Cal. Supreme Court ruled that the traditional distinctions
between duties owed to trespassers, licensees, and
invitees had become obsolete.
Test: whether in the management of his property, he has
acted as a reasonable man in view of the probability of
injury to others, and, although the plaintiffs status as a
trespasser, licensee, or invitee may in the light of the
facts giving rise to such status have some bearing on the
question of liability, the status is not determinative.

Rescuers are not usually considered invitees.

Courts usually consider mailmen and meter readers
as invitees because its known when and where theyll be.
As for household guests in uniform, B is super high to expect homeowners to have very safe home at all
times for unanticipated guests.

LICENSEE (PROCESS OF ELIMINATION)

R2d 330 Licensee Defined
A licensee is a person who is privileged to enter or remain on land only by virtue of the possessors consent
(express of implied).
R2d 341 Activities Dangerous to Licensees
A possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to
carry on his activities with reasonable care for their safety if, but only if, (a) he should expect that they will
not discover or realize the danger, and (b) they do not know or have reason to know of the possessors
activities and of the risk involved.
R2d 342 Dangerous Conditions Known to Possessor
If
(a) Landowner () knows or should know of a condition on the land that poses an unreasonable risk of harm, and
(b) should expect licensee wont discover the condition or realize the danger, and
(c) The licensee doesnt know or have reason to know of the condition and its risk,
has a duty to exercise reasonable care to either:
Make the condition safe, or
Warn the licensee of the condition and its risk.
NOTE: Major difference between licensee and invitee: duty owed by homeowners vs. businessmen
Homeowners: dont have to inspect to protect visitors, just have to warn of known dangers
o More burdensome to impose duty to inspect constantly to keep visitors safe, especially when
they get unexpected visitors
Businessmen: have to inspect to keep risks and dangers to min. (not just duty to warn, but to make sure
the place is safefind dangers)
o Because open to public
o For financial gain (P in Hand formula)
Current state of the law blurring of the distinctions between the three categories
Half of the states have eliminated the licensee-invitee distinction. In these states, only the trespasser
distinction remains
Ten states have abolished all categories and extended the general duty of reasonable care to all
persons on the premises
49

Davies v. McDowell National Bank

was killed by carbon monoxide poisoning when
visiting s office. Evidence showed that did not
know of the condition.
No liability.
The owner of a premises is liable to gratuitous licensees
(social guests), for bodily harm caused by a latent
dangerous condition on his premises only if he has
knowledge of the condition and fails to warn the
guests, realizes that it involves unreasonable risk to
his guests and that they are not likely to discover its
existence.
No knowledge that knew of dangerous condition
Purpose for staying after business visit; licensee; no
duty to inspect for dangers

Lordi v. Spiotta
P was killed when lighting the heater in Ds bungalow. D
thought he had turned off the heater earlier, but had not.
Because the heater was left on, there was an explosion when P
lit a match.
Liability.
1. A person is liable if his negligence creates a hazard on his
property that injures a guest.
o It was an affirmative act that created the danger as
opposed to failing to discover a danger.
o The distinction is that the defendant in Lordi acted
negligently and then directed the plaintiff to perform a
task that resulted from the defendants negligence.
Whereas, in the Davies case, it is not clear that the
defendant knew of the condition, or that it resulted
directly from his negligence. Furthermore, the
defendant in Davies did not instruct the plaintiff to
perform a specific act that resulted in her death.

50

BUT-FOR CAUSATION: the first issue in cause in fact (requirement than must show s negligence caused
his injuries, after has established acted negligently), in which shows the injuries would not have occurred if
had used due care. The standard is that injury was more likely than not caused by s negligence.
New York Central R.R. v. Grimstad (1920)
FACTS: Angell Grimstad was captain of barge, fell
overboard when tugboat hit barge; could not swim; wife ()
ran to cabin for a line, but he had drowned when she
returned; sued owner of barge (), claiming negligently
failed to provide lifesaving equipment on the vessel
PH: jury/trial court ruled for ; appeal reversed
ISSUE: Would a life buoy have saved s husband?
RULE: If s husband would have lived if not for s
negligence, is liable.
HOLDING: No; overturned a jury verdict! Proximate
cause of death was falling into the water; there is no way
to know if additional equipment would have prevented
his drowning.
NOTES: lost on causation: had she said they should have
had a large net around the boat, she would have lost on
breach of duty (as a net would have saved him, but is too
high a B to be within the reasonable standard of care; this
seems like a farfetched outcome with the evidence that we
havea life preserver would have probably saved him
seems like the biggest factor was how quickly he drowned
Gardner v. National Bulk Carriers, Inc. (1962)
FACTS: s decedent (Gardner) went missing from s
ship; he had last been seen six hours earlier; ship continued
on course and did not look for him; court exonerated ,
saying captain had acted reasonably, a ship had traveled 100
miles when Gardner was found missing and he was
probably dead
PH: trial court exonerated ; appeal reversed for
ISSUE: Was captain negligent in not searching for him?
HOLDING: Yes; while it is conceivable that Gardner
was dead, it is known with certainty that seaman often
survive for many hours after falling overboard. The
burden to search for him was very low, as only time
would be lost (maybe half a day); captain neglected his
duty to rescue.
NOTES: trial court said there was no reasonable way they
could have saved him (so unlikely they would have found him)
and their not going back was not the proximate cause of
Gardners death; causation in this appeal lies in the increased
certainty of Gardners death (If he wasnt going to die anyway,
he definitely will now!); failure to go back and look is a breach

51

Stacy v. Knickerbocker Ice Co. (1893)

FACTS: s company cut ice that formed in lake, rented horses
from to help scrape snow off ice; horses got spooked, got away
from s employee Clifford (and another) that tried to restrain
them; horses reached thin ice (hidden), fell through, drowned;
said was negligent for (1) failing to erect fence around thin ice
required by statute; (2) failing to notify employees of location
of thin ice; and (3) failing to keep ropes/etc around that could
have been used to pull horses out of the water and prevent
drowning
PH: trial court directed verdict for , SC affirmed
ISSUE: Was negligent in failing to do these three
things?
HOLDING: No; (1) the fence required by the statute would not
have stopped the horses; (2) knowledge of location of thin ice not
a factor in the deaths (would not have stopped horses from
running on it); (3) no rule requires companies keep ropes around
to save drowning horses and horses were likely dead when
Clifford was rescued (almost drowned trying to save horses)
anyway.
NOTES: violating the statute did not cause the harm (so
Haft v. Lone Palm Hotel (1970)
FACTS: sued (motel) for wrongful death for having no
lifeguard when her husband and son drowned in the pool;
wife told them not to swim, but they did; no lifeguard on duty
or no lifeguard sign at pool; only husband and son were
there, both drowned; requested jury instruction that s
failure to provide lifeguard service was a matter of law (had
to have lifeguard or no lifeguard sign)...judge refused
PH: jury/trial court ruled for , appeal reversed bc jury
was misinstructed and a new trial was required
ISSUE: Was motel negligent in not posting a sign?.
HOLDING: Yes, negligent per se. Statute requiring sign was in
place to protect people like them. Lack of sign was not the cause
of their deaths (sign would not have prevented them from
swimming), but shifted burden to to prove no causation.
NOTES: failure to have a sign or guard was a breach of duty,
but does not establish causation; by not having a sign, must
have a lifeguard is the purpose of the statuteit would nullify
legislation to allow them to fail to even adopt the substitute
requirement; even if it is a slim chance, the sign is a low B that
might deter weak swimmers and thus lower the chances of an

recurring-miss problem: if courts always apply the traditional standard of causation (such as in cases like
Gardner and Haft), courts could potentially create a pocket of immunity, which would allow people to not
try to save someone, if it was unlikely they would actually be able to save them; thus, people would not
exercise as much care

52

Herskovits v. Group Health Coop of Puget Sound (1983)

FACTS: s husband went to usual doctor () in December
1974 for chest pain and coughing, was given cough
medicine, health failed to improve; in summer of 1975, he
went to another doctor (Oscrow) and was diagnosed with
lung cancer; had a lung removed, but died of cancer in
March 1977; Oscrow testified that if hospital had detected a
stage 1 tumor in December 1974 (if it was there), his
chance of surviving would have been 39%; when tumor was
detected at stage 2, chance was down to 25%; moved
for SJ, as he would have died even if had found the tumor
PH: trial court gave SJ and dismissed; SC reversed
ISSUE: Is decrease from 39%-25% in survival chance
sufficient evidence of causation to allow jury to consider
possibility that s failure to timely diagnose was the
proximate cause of death?
HOLDING: Yes; all or nothing approach creates too many
problems; the loss of a less than even chance is an
actionable injury; established prima facie case of prox
cause by showing probably caused substantial reduction
in his chance of survival
NOTES: says that it cannot be that but for s
negligence, man would have livedthis is uncontested;
traditional rule is that doctors cant be held liable if someone
has survival chance of less than 50%...Wis. SC is going a
different route by recognizing a reduction in chances of
survival as an injury (the evidence, in this view, would
establish causation; had Wis. SC taken traditional approach,
could have created a pocket of immunity, giving blanket
liability to all doctors whose patients had less than 50%

Under the traditional approach to causation, we

ask how large a share of the risk of whatever
happened was created by . In effect, has to
show that s negligence at least doubled the
background likelihood of whatever injury
occurred.
The loss of chance approach only applies when
you cannot tell is death was caused by negligence
or if the patient was going to die anyway.
EXAMPLE: is a doctor who performs a risky
procedure on ; there is a 5% chance will die
even if is careful in every respect. is negligent
in some way, which raises s chance of death to
25%. dies. Under the traditional approach, is
liable. The question is Given that did die, how
likely is it that s negligence caused his death?
s negligence caused s chance of death to go
from 5% to 25%. Though the total risk was
relatively small, most of the risk that did exist (4/5
of it) was due to s negligence (80% chance
was to blame).
Under traditional approach, a doctors negligence can
never be considered if s chance of death is more
than 50% (Herskovits), as it will always be more
likely than not that would have died anyway. It is
impossible for a doctor to double s chance of death

53

Loss of Chance Damages Options: court will award one of three in the case of a loss of chance situation
o Full damages: if s neg. increased potential risk of death and patient dies, can collect wrongful death
damages
o Reduce damages to reflect patients chance of survival in the absence of negligence: if patient had a 30%
chance of survival without s negligence, can recover 30% of wrongful death damages
o Impose damages based on the share of risk created: Herskovits odds were 75 chances to die out of 100
situations; 14 of those chances were caused by s negligence; 14/75 is 19%; is liable for 19% of wrongful death
damages
Daugert v. Pappas (1985)

Dillon v. Twin State Gas & Electric Co. (1932)

FACTS: s son was sitting on a bridge, lost his balance, and grabbed wires
maintained by to catch himself; wires were live and kid was electrocuted,
thrown back onto the girder; he died
PH: trial court rejected s motion for directed verdict; SC affirmed
ISSUE: Can be held liable when it is quite possible decedent would have
died from a different cause?
HOLDING: Yes. While he would have fallen off the bridge (and maybe
died/been maimed) anyway, s liability was in s exposing him to the
danger of charged wires.
NOTES: extent of s liability determined by jury; had they found
he would have likely died, no damages would have been awarded;
had they found he would live (injured badly), low damages; there is
no question as to why he died; this is not a loss of chance question,
as we know what killed him; would be too difficult to find out
actual percentages to calculate damages (do not know if he would
have lived, died, been maimed, etc)

FACTS: (lawyer) represented in a contract

dispute, which they lost on appeal; wanted to appeal,
but failed to file timely or follow proper procedure,
resulting in denial of review; jury found 20% chance
would have won on appeal, awarded 20% of
damages incurred in losing the original contract case
PH: jury awarded damages to , appealed to
SC

Loss of chance usually limited to cancer cases.

When calculating loss of chance, it is much easier to

convert the survival odds to chance of death!

ALTERNATIVE LIABILITY: requires to bring forth all possibly responsible s; by bringing all potentially
culpable parties, shows a 100% chance one of them caused your injuries; the common law is more
comfortable shifting the burden of proof to (to show they did not cause the injury) when both s were
negligent.

54

Summers v. Tice (1948)

FACTS: and two s were quail hunting; stood
in a triangle; flushed a quail out, which flew
between them all; both s shot at it and hit in
the face with bird shot
PH: trial court found s had been negligent
in firing in s direction, entered judgment
on them; s appealed on ground that
failed to prove which of them fired at him
ISSUE: Can both s be liable when there is
no evidence as to which one actually hit ?
HOLDING: Yes; inference of negligence was
proximate cause of injury; they brought about a
situation where the negligence of one of them
injured , hence the burden of proof as to which
s fault it was shifts to s; s are in better
position to offer evidence to determine which of
them caused the injury
NOTES: court looks to Ybarra, where all staff in
the room were liable for negligence when patient
was unconscious; both s were negligent, so
burden of proof shifts to to show they did not
cause the injury; court only ruled the way it did
bc both were negligent; had they not been
negligent, would be out of luck

Restatement (Second) of Torts 433A.

APPORTIONMENT OF HARM TO CAUSES
Illustration 3. Five dogs owned by A and B enter Cs farm
and kill ten of Cs sheep. There is evidence that three of the
dogs are of the same general size and ferocity. On the basis
of this evidence, A may be held liable for the death of six of
the sheep, and B liable for the death of the other four.
Restatement (Second) of Torts 433B. BURDEN OF PROOF
Illustration 10. Over a period of three years, A successively stores
his furniture in warehouses operated by B, C, and D. At the end of
that time, A finds that his piano has been damaged by a large dent
in one corner. The nature of the dent indicates it was caused by
careless handling on a single occasion. A has the burden of proving
whether the dent was caused by the negligence of B, C, or D.
Illustration 11. While As car is stopped at an intersection, it is
struck in the rear by Bs negligently driven car. Immediately
afterward, Cs negligently driven car strikes the rear of Bs car,
causing a second impact on As. In one collision or the other, A
sustains an injury to his neck/shoulder. In As action against B and
C, each has burden of proving his conduct did not cause the
injury.
DISTINCTION: In #10, one of them was negligent, but

55

Kingston v. Chicago (1927)

FACTS: two forest fires united and destroyed s lumber; the
one from the northeast had been ignited by sparks from s train;
the origin of the fire from the northwest was unknown, but was
not the product of s negligence; either fire would have
destroyed lumber
PH: jury brought in verdict for ; SC affirmed
ISSUE: Can be held liable even though the origin of the
second fire was unknown and could have been the one that cause
damage?
HOLDING: Yes; allowing to escape liability because the
origin of the northwest fire was not identified would make a
wrongdoer a favorite of the law at the expense of an innocent
sufferer. Burden is on to prove the destructive fire was not his.
NOTES: s challenge is to prove that but for s
negligence, his lumber yard would still be intact; no
reason to believe the second fire isnt of human origin;
differs from Summers bc if one of them here had not
caused the damage to the lumber yard, the other likely
would; no concern that court might punish a nonculpable party, as s negligence was sufficient to cause
Litzman v. Humboldt County (1954)
FACTS: (9 yrs old) picked up what he thought was a flare on
the ground at the county fair; he touched a match to it, it
exploded and blew off his left hand; was an aerial bomb used by
one of two groups (Golden State and Monte Brooks) at the fair;
sued GS and MB; trial court instructed jury they had to exonerate
both GS and MB if unable to determine which was responsible
for leaving the bomb on the ground
PH: jury brought in verdict for s; appealed, stating
jury should have been instructed jury that it could find in
his favor under res ipsa loquitor (set out by Ybarra) and
could have found in his favor under doctrine of
alternative liability (set out by Summers)
ISSUE: Can both be held liable for the actions of one, if no
evidence to show which was responsible for leaving it there?
NOTES: differs from Summers bc only one here was
negligent (if both were held liable, then an innocent party
would lose); the burden to find negligence is on
because only one party had exclusive control over the
instrumentality; common law is more comfortable letting
go uncompensated then finding innocent s guilty

is entitled to the presumption of joint liability if:

(1) Two s who were independently engaged in conduct that was equally likely to have caused s injury, but
(2) The injury was only caused by one of them, and
(3) There is no evidence to identify which one caused the injury.

Restatement (Second) of Torts 431. WHAT CONSTITUTES LEGAL CAUSE

The actors negligent conduct is a legal cause of harm to another ifhis conduct is a substantial factor in
bringing about the harm
Restatement (Second) of Torts 432. NEGLIGENT CONDUCT AS NECESSARY ANTECEDENT OF HARM
(1) Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing
about harm to another if the harm would have been sustained even if the actor had not been negligent.

56

(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any
misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's
negligence may be found to be a substantial factor in bringing it about.

PROXIMATE CAUSE: REMOTENESS AND FORESEEABILITY

Intended to address the concern that even after established but-for causation, could be that the connection
between the injury and the negligence is too remote to hold D liable
Limit liability to accidents reasonably foreseen
Is injury inside or outside scope of foreseeable harm?
57

If s get to escape liability b/c exact sequence of events that are foreseeable doesnt occur, too few s
would be held liable
If like Polemis, too many s would be held liable
Courts try to strike balanceharm, force foreseeable
How would a court rule?
Depends on how court/jury frame foreseeable harm
o Explain how and would frame it
o **If given s approach and told to defend against it, say why is wrong
o s want to broaden frame
o s want to narrow frame
o ***The key is why it was neg. not to remove the harm, etc.
Connection / overlap between proximate cause and duty
Hard to distinguish proximate cause cases from duty cases
One difference is who decides
o Duty judges
o Proximate cause jury
Distinguish by thinking about what they focus on
o Duty asks to decide whether this should be liable to this or class of s (who question)
o Proximate cause asks the what question for what injuries should be held liable?

R2d 29 Limitations on Liability for Tortious Conduct

An actors liability is limited to those harms that result from the risks that made the actors conduct tortious.
o Comment j: Connection with reasonable foreseeability as a limit on liability: Many jurisdictions
employ a foreseeability test for PC, and in neg. actions such a rule is essentiality consistent with the
standard set forth in this Section. Properly understood, both the risk standard and a foreseeability test
exclude liability for harms that were sufficiently unforeseeable at the time of the tortious conduct
that they were not among the riskspotential harmsthat made the actor negligent. Negligence
limits the requirement of reasonable care to those that are foreseeable. Thus, when the scope of
liability arises in a neg. case, the risks that made an actor negligent are limited to foreseeable ones, and
the fact finder must determine whether the type of harm that occurred is among those reasonably
foreseeable potential harms that made the actors conduct negligent.
Goes to duty and proximate cause
o Even when s failure to use reasonable care causes injury
o No duty
o s neg. not proximate cause of s injury
o bears the burden of establishing neg.

Directness test (least common)

Is there a sufficiently direct connection between the
breach and the injury? Was the chain of events so
broken that injury wasnt the natural and probable
result of s negligence?
Policy critique: unlimited liability

In re Polemis
Board falling and igniting the gasoline case.
Liability, falling of plank directly caused ship to explode.
Damage was direct result of negligence.
If the act would or mightcause damage, the fact that the
damage it in fact causes is not the exact kind of damage
one would expect is immaterial, so long as the damage
is in fact directly traceable to the negligent act, and not
due to the operation of independent causes having no
connection with the negligent act.
Not the current common law.

Foreseeability test (most common)

Was the type of harm resulting from the action reasonably foreseeable?
58

Was P in the ambit of foreseeable risk?

Was P a foreseeable victim?
o The manner of the injury doesnt have to be foreseeable
Was P a member of a foreseeable class?

Overseas Tankship (Wagon Mound)

Oil leak spilled into bay. suspended work on
its ship, but then resumed work when it was
satisfied that the oil in the water was not
flammable. The oil caught fire due to their
work.
not liable for starting the fire because they
could not reasonably have known that it was
capable of being set on fire when spread on
water.
The essential factor in determining liability is
whether the damage is of such a kind as the
reasonable man should have foreseen.
Overturned the directness test

Kinsman Transit
The boat came loose, knocking other boats loose, piling up,
blocking and flooding the river.
Liable for flood damage.
A person is liable where the damage resulted form the same
physical forces whose existence required the exercise of greater
care than was displayed and were of the same general sort that
was expectable, unforeseeability of the exact developments and
of the extent of the loss will not limit liability.
Negligence: Continental (dock owner) supplied a defective dead
man, which negligence predates the onset of the accident why
Judge Friendly has trouble linking up the damage; Kinsman
didnt properly deploy the ships anchors once the accident had
begun; City didnt raise the drawbridge in time, which
negligence post-dates the onset of the emergency.

Doughty v. Turner
o Lid on cauldron fell into cauldron and caused an explosion.
o No liability.
o The kind of harm that occurred is the same kind that you would foresee from knocking the lid into the cauldron. (Good
argument, but did not win).
o Court says the damage had nothing to do with the agitation caused by dropping the lid into the cauldron.
o Yet, injury is of the same type as the foreseeable type of injury.
But they were products of two different forces.
Colonial Inn Motor Lodge v. Gay
o D backed into a heating unit at 2mph. This caused gas from the unit to collect in the hotel and ignite.
o Liability.
o If the defendants conduct is a substantial factor in bringing about the injury, it is not necessary that the extent of the harm or
the exact manner in which it occurred could reasonably have been foreseen.
o For liability use Kinsman: Foreseeable injury property damage, Foreseeable force backing into the property. Actual = the
same.
o Against liability use Doughty: Foreseeable injury crushed bricks, actual fire damage. Foreseeable force impact of car,
actual explosion.

DiPonzio v. Riordan
o An unoccupied car that was left running, rolled into P breaking his leg. Ds gas station had a policy that its patrons were to
turn off their engines while fueling. P sued D alleging that it failed to enforce the policy.
o Not liable.
o The defendants duty only extends to that which is within the scope of what is reasonably foreseeably.
o The policy was created for the foreseeable hazard that the running engine would cause an explosion, the hazard that occurred
was a rolling car causing a broken leg
o Stronger case for NL than Doughty.
United Novelty Co. v. Daniels
o P was instructed by D to clean a machine with gasoline. This was near a lighted gas heater. Gasoline fell on rat, rat caught fire
and ignited the fumes from the gasoline.
o Cause of accident?
59

Defendant: The unpredictable movements of a rat

Plaintiff: Ordering Plaintiff to work in unsafe conditions
What had to be foreseeable?
: That a rat would jump out of the machine, run directly toward an open flame, catch fire, and then run back precisely
where it could do the most damage.
: Sending someone to work in small room filled w/ gas vapors/open flame would create unacceptable risk of explosion.

Steinhauser v. Hertz Corp.

Car accident case where the lady got schizophrenia
Court found liability reasoning that the plaintiff was
an eggshell plaintiff. Particularly susceptible to a
particular type of injury that the defendant caused.
Eggshell : mental injury w/i scope of foreseeable
harm?
o Mental distress of same type as physical injury
(harm to person)
o L depending on how scope of mental harm
defined

Central of Georgia Ry. v. Price

s train missed her stop so she was put up in a hotel
and the lamp caught fire.
No liability.

The injury was occasioned by the negligence of the

proprietor of the hotel or his servants in giving her a

defective lamp. The negligence of the company in
passing her station was therefore not the natural and
proximate cause of her injury.

Pridham v. Cash and Carry Building

was injured at s store and was then killed when the ambulance he was in crashed.
Liability.
If is liable to the -decedent in this case, he is also liable for any additional bodily harm resulting from normal efforts
of third persons in rendering aid.

R2d 457 Additional Harm Resulting from Efforts to Mitigate Harm Caused by Negligence
If the negligent actor is liable for anothers bodily injury, he is also subject to liability for any additional
bodily harm resulting from normal efforts of third persons in rendering aid which the others injury
reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.
R2d 460 Subsequent Accidents due to Impaired Physical Condition Caused by Neg.
If the negligent actor is liable for an injury which impairs the physical condition of anothers body, the actor
is also liable for harm sustained in a subsequent accident which would not have occurred had the others
condition not been impaired, and which is a normal consequence of such impairment.

60

Risk Rule (newest Third Restatement)

o A negligent actor is legally responsible for the harm that
(1) Is caused in fact by his conduct, but also
(2) Is a result within the scope of the risks by reason of which the actor is found to be negligent
o Was the injury the realization of one of the risks that made s actions wrongful? (R.3d 29)
o Application of the Hand formula
B<PxL
s breaches are proximate causes when they give rise to injuries that were considered in coming up
with the PxL side of the equation
Proximate causes is about remembering the risks evaluated in the first place when determining
whether there was a breach of the standard of care

PROXIMATE CAUSE: INTERVENING CAUSES

Sometimes a commits an act of neg. that produces harm when combined with a subsequent act of
wrongdoing (negligence or worse) by some 3rd party
The question is whether the intervening act by the 3 rd party is a superseding cause that cuts off the s
liability
o The subsequent act of a second tortfeasor can sometimes relieve an earlier tortfeasor of his
responsibility, even if he is a but-for cause of the victim's injury
61

o Standard: to be a superseding cause (and relieve an intial tortfeasor of liability), the intervening act
must be so highly extraordinary that antecedent negligence should be ruled out as a matter of law
as a substantial factor in causing the accident.
Invokes some notion of reasonable foreseeability
o Acts of God usually count as superseding causes
NOTE: cause in fact does NOT create proximate cause!
Can still find negligence even if act of 3rd party (intervening act) is intentional
Important if breaks causal chain or not
o Train hits carriage caseforeseeable that items would be stolen
o Other train casenot foreseeable someone would intentionally burn it down
R2d 448 Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actors
Negligence (paraphrased)
If A commits negligence that creates an opportunity for B to commit an intentional tort against C
Bs intentional tort is a superseding cause of Cs injury that absolves A of liability
Unless A should have realized:
1. The likelihood that his conduct might create that situation, and
2. That a person like B might take the opportunity to commit a tort or crime.

Brauer v. N.Y. Central & H.R.R. Co.

s train collided with s wagon, killing his
horse, destroying the wagon, and disturbing
the contents of the wagon, which were stolen
by some third party.
Liable
D is liable for the missing contents because the
negligence, which caused the collision
deprived P of the services of the driver.
Dissent: no proximate causenot kind of harm
expected from accident

Watson v. Kentucky & Indiana Bridge & R.R.

Ds railroad car was negligently derailed causing it to spill its cargo of
gasoline. A man named Duerr lit a match, igniting the gas, causing an
explosion that injured P and destroyed much of his house. Duerr claimed
that he used the match to light a cigar and had started the fire inadvertently.
The R.R.s witness said that they heard Duerr say to a companion let us go
and set the damn thing on fire.
Liability contingent on how Duerr came to start the fire.
If fire was started inadvertently, then the RR is liable (foreseeable). If Duerr
intentionally started the fire then RR is not liable (not foreseeable that
someone would intentionally start the fire).

Village of Carterville v. Cook

was bumped by another pedestrian causing
him to fall off of s sidewalk that was
elevated about 6ft above the ground w/out
guardrails.
Liability.

Alexander v. Town of New Castle

was thrown by Heavenridge into a pit on one of s streets. sued for
negligently failing to enclose the pit.
No liability.

s negligent failure to provide guardrails was

the proximate cause of s damages.

Heavenridge was clearly an intervening as well as an independent human

agency in the infliction of the injuries of which P complained. (Not

Scott v. Shepherd
Shepherd tossed a lighted firecracker into a crowd. Several other people
redirected it, until it exploded and put out plaintiffs eye.
Liable.
All that was done subsequent to the original throwing was a continuation
of the first force and first act. Any innocent person removing the
danger is justified. Acting under compulsive necessity for their safety.

62

63

The Roman Prince

was in the cabin of a barge, when it was struck by s steamship. noticed the barge had started to leak but not that it was
sinking, so she declined to board another barge alongside hers. Half an hour later, it had sunk enough to where she decided to
get on the adjacent barge. She injured her knee while changing ships. sued claiming the negligent piloting of its ship that
originally caused the collision was responsible for her injuries.
No liability.
The collision was not the proximate cause of s injuries.
She had 15-25 minutes to get off the boat when she knew it was settling. She chose, because of a somewhat natural desire to stay
by the vessel, to take the risk for a time of the sinking, and finally, from 20-30 min after the collision, suffered injuries because
she stumbled between the two boats.

R2d 449 Tortious or Criminal Acts the Probability of Which Makes Actors Conduct Negligent
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which
makes [A] negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not
prevent [A] from being liable for harm caused thereby.

64

Johnson v. Kosmos Portland Cement Co.

owned barge, hauled oil; flammable gas accumulated in hold; negligently failed to remove gas before having workers fix
barge with blowtorch.
6th Circuit for ; result dependent upon why it was negligent
Against liability: Same kind of harm, not the same kind of force that brought it about
For liability: Failing to remove the vapors creates a foreseeable risk for all different kinds of ignitions.
Henry v. Houston Lighting & Power Co.
Plaintiff arg analysis:
o If plaintiff had been injured in explosion D prob liab
o Plaintiff injured escaping an imminent explosion D prob liab
o P injured fleeing from threatened explosion that never occurred Good arg for liability
o P reasonably believes an explosion is imminent and injures himself escaping it liab still seems plausible
D arg analysis:
o Foreseeable risk = risk of explosion
Not risk of fleeing imaginary explosion and running into a pole

Actual result: reversed. Jury could find proximate cause.

Clark v. El DuPont
Pail of explosives put in rock crevice in cemetery
Workers did not break causal chain between s negligence in leaving pail behind and s injuriesnot new cause, still one causal chain
No new power of doing mischief was communicated to the solidified glycerine by the acts of young McDowell. The power of doing mischief was
inherent in the glycerine all the time. That some terrible accident was likely to happen in letting it out of the close custody of someone skilled in its
use was not only natural and probable, but almost inevitable.
McDowell had no skill or experience in handling the dangerous article. He did the best he could to prevent the damage.... That he attempted to
prevent its doing damage, but failed on account of lack of sufficient knowledge to dispose of it effectively, does not amount to an unrelated and
efficient agency to shift the proximate cause from the [tort] of the powder company to a new proximate cause of his own making.
Thompson v. White
was riding in a car that was rear ended by . sued , and a nearby gas station that had clowns performing on the side of the road, claiming that the
clowns were on a portion of the highway used by cars and could have distracted .
Possible liability for gas station.
We are of the opinion that, from the evidence favorable to plaintiff, the jury, could reasonably infer that the clowns were on the road traveled portion
of the highway, that the activities of the clowns were such as would naturally and probably distract the attention of motorists on the highway, and
that the activity of the clowns did distract White and cause him to drive his car into the car in which plaintiff was riding.
In that event, White was not a free agent but was acting under the influence of the clowns.
Richardson v. Ham (raging bulldozer case)
Automobiles do not arouse curiosity.... The record in the present case, on the other hand, shows that defendants bulldozers
aroused curiosity and attracted spectators...
Campbell
accident,
other
drives,that
F doesnt
noticehits
helpers)
Bell
[Car v.
owners]
will(car
ordinarily
haveppl
nowarn
reason
to foresee
a thief take
will be
an incompetent
driver...
may argue that the original negligence has come to rest
The
risks arising
from Airlines,
intermeddling
however, are entirely different.... Bulldozers are relatively uncommon, and
Singapore
Ltd. bulldozers,
Farmilant
may arguev. that
the accident
is occurred
is one that could be reasonably foreseen from the original negligence
curious
children
or
others
attracted
by
them
ordinarily
will not know how to operate them. An intermeddler who starts a
Not
proximate
cause.
Getting
It is the
foreseeable
that
people
wouldfood
stop poisoning
and help. is the foreseeable injury of not having a ticket available for him. Did not make it
bulldozer accidentally or otherwise may not be able to stop it, and the potentialities of harm from a 26 ton bulldozer in
more
likely
he
would would
get food
It is
clear
that that
[the
plaintiff]
notpoisoning.
have been injured
for on
respondents
negligence....
The
active
and immediate
cause ofand
the
uncontrolled
motion
are enormous,
particularly
when itbut
is left
top of a mesa
from which
it can
escape
and injure persons
Resembles:
Central
of
Georgia
Ry.
Co.
v. Price
second
collision,
however,
was
an
entirely
independent
agency,
Fore.
property located below.
...[R]espondents
If all those facts were
couldrecited
not reasonably
in a first-year
foresee
lawthat
school
the examination
manner in which
question
they(from
operated
whichtheir
theyvehicles
might appear
prior to have
the first
beencollision
lifted),
might
leadobvious
to the serious
injury
deaths to
of persons
not even
in the zone
of danger
as aliable
resultfor
of any
theirdamages
being struck
by another
the most
issue for
theorstudent
spot would
be whether
Airline
could be
associated
with
automobile
which was
some distance
at the time.
[....]bought from a vendor at a stop on his railroad trip from Bombay to
Farmilant's illness.
Farmilant
attributesaway
the illness
to food
Obviously charged
that intervening
or superseding
would
cut off
Airline's
liability....Their
Farmilant
embarrasses
himself
AllMadras....
acts and omissions
against respondents
hadcause
run their
course
and
were complete.
negligence
did not actively
when he says
theway
possibility
of his becoming
ill this
during
was
... reasonably
foreseeabletoby
contribute
in any
to the injuries
involved in
suit.hisIt transportation
simply createdtoa Madras
condition
which
attracted [plaintiffs]
theAirline.
scene,
Farmilant
hisinjured
counselbywould
well Respondents
to read any of negligence
the host of was
casesnot
exemplified
by cause
Central
Georgia
Ry. Co. v. Price...
where
theyand
were
a thirddoparty.
a concurring
of of
their
injuries.
65

Bottom line on proximate cause

Generally agreed that foreseeability is the modern doctrinal test
o Or the risk rule, which could just be another way of phrasing the foreseeability test
From Andrews in Palsgraf and Friendly in Kinsman risk rule is not self-applying
o Consider many factors that were considered in the duty analysis
How to distinguish duty and proximate cause?
o Duty generally a matter of law for the judge to decide, proximate cause a question for the jury
o Duty who
Is this a person to whom a duty is owed?
o Proximate cause what
Should be able to recover for this injury

LIMITATION ON DUTY: AN ALTERNATIVE APPROACH

Palsgraf v. Long Island Railroad
***Doesnt reflect current majority rule of proximate cause!
Firecracker packaged dropped, far away injured
sued claiming that train employees neg. in assisting guy get on train caused her injuries
o Final app ct. reverseddismissed
To whom does a party owe the duty of care? To ?
o owes a duty of care to those in a reasonably foreseeable zone of danger
Like doughty, no one knew would cause this kind of explosion
Not proximate cause: harm resulted not of same type of harm that a reasonable person would expect to result from helping
passenger onto train
Cardozo Negligent conduct must consist of a wrong in relation to , i.e. a violation of her own right
o Duty only those who have a legally protected interest have a cause of action
Says did not breach any duty that it owed to specifically
If you havent acted in a way that poses a foreseeable risk to another then you do not have a duty of care to
that person
The risk reasonably to be perceived defines the duty to be obeyed.
o Corrective justice individuals who are wrongdoers owe a duty of repair to the persons they wronged and only to the
persons they wronged
o This is not a proximate cause inquiry
Andrews dissent what we mean by the word proximate is that, because of convenience, of public policy, of a rough
sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical
politics.
Edwards v. Honeywell
Fire alarm company called the wrong number a couple times before calling the correct fire department, causing them to arrive
three minutes later then they would otherwise have arrived. A fireman fell through the floor and died. His widow sued. Court
Widlowski
Foods
gave sj tov.Durkee
and court
of appeals affirmed.
An
employee
of

entered
anCo.
industrial tank containing nitrogen gas in order to clean it. The gas caused him to become delirious.
Wagner
v. International Ry.
No
liability.
He
was
taken
to
the
hospital
bit
off apart
of because
a is
finger
belonging
to
a nurse
there.
Nurse
sued at
.
s
cousinliability
was thrown
off theand
train
on
the doors
were
leftefforts
open.
The
train stopped
and and the
Imposing
for unforeseeable
types
ofturn
harm
unlikely,
therefore,
tonegligently
evoke
greater
preventing
accidents.
Noconductor
liability. left the train to search for the cousin. fell off the bridge and sued the RR claiming that his injuries were attributable
The
problem of proving causation in such a case is a formidable one, and the plethora of potential defendants makes it difficult
to the same
act of negligence
that
his cousin
to fallthe
offparties.
of the train.
Whether
a dutyoriginal
exists depends,
in part, on
thecaused
relationship
between
(we should think) for an alarm company to estimate its likely liability even if it does foresee the kind of accident that occurred
Liability.
We
hold that did not owe a duty of ordinary care.
here.
Danger
invites rescue.
The wrong
thatatimperils
life isliability
a wrong
to theextend
imperiled
a wrong
also it
to was
his rescuer.
o Accepting
plaintiffs
argument
face value,
would
to thevictim;
world itatislarge,
because
conceivable, though
highly
unlikely,
Wells
wouldthat
have
anyone
he came into contact while in a state of delirium.
Rescuers
are within
thethat
class
of people
areharmed
foreseeable
in with
an actwhom
of negligence.
o doesn't
Publicdiscriminate
policy does not
support
imposition
of duty
in this
Law
between
rescuer
oblivious
to peril
andcase
the one who counts the costenough that the act is the child of
o
Proximate
cause
framework,
but
policy
concern
that

not able to exert control over Wells

occasion
o Duty analysis (take away from jury)
66

ASSUMPTION OF RISK: claims not that was negligent but that assumed the risk of the harm that
occurred and therefore should be barred from recovering from ; chose to encounter a risk negligently
created by

Three types of assumption of risk claims:

(1) expressly assumed the risk by formal agreement.
(2) had no duty to protect harm suffered bc risk was inherent in the activity and chose to undertake
(3) chose to encounter a risk negligently created by
If assumes risk, it removes s duty!
To assert assumption of risk, must show:
(1) recognized and understood the risk involved
(2) voluntarily chose to encounter it

EXPRESS ASSUMPTION OF RISK

Restatement (Second) of Torts 496B. EXPRESS ASSUMPTION OF RISK
Parties can expressly agree to accept risks arising from possible negligence or reckless conduct by others
unless the agreement is invalid as contrary to public policy.
Comments: Must be clear saw the terms, understood them, and agreed to them. Agreements are
construed strictly against the party seeking the release. Agreement must show parties intended to apply
to the particular conduct that caused s harm.
General clauses exempting from all liability arent construed to include intentional, negligent,
or reckless misconduct.
General clauses exempting from all liability for negligence arent construed to include
intentional or reckless misconduct, or extreme negligence

67

Van Tuyn v. Zurich American Ins. (1984)

FACTS: at s club; decided to ride mechanical bull; told
operator to go easy, said he would; signed waiver without
reading; when it sped up, was thrown to floor after 15
seconds; sustained various injuries
ISSUE: Did the waiver preclude recovery for negligence?
RULE: An exculpatory clause can absolve from liability
out of his own negligence, but it must state that it releases the
party from liability for its own negligence.
HOLDING: No.

NOTES: no lang in waiver to release/indemnify for

negligencedidnt say waiving claim for negligence; also
could have failed since did not read would have to show
knew what she was signing

Manning v. Brannon (1997)

FACTS: went skydiving with ; signed waiver after
watching video that explained it released for death/injury on
the fault of ; injured on 3rd jump due to malfunction of chute
ISSUE: Did the waiver preclude recovery for negligence?
RULE: An exculpatory clause can absolve from liability
out of his own negligence, but it must state that it releases the
party from liability for its own negligence.
HOLDING: Yes.

NOTES: differs from Van Tuyn, as he knew exactly what he

was signedno disparity of bargaining; had offered his
money back if he did not want to continue; if had been
grossly negligent, might have come out differently (just bc
neg is mentioned in the clause, does not excuse gross neg)

Restatement (Second) of Torts 496B. EXPRESS ASSUMPTION OF RISK

Comments: Waivers generally not enforced where they appear to be forced upon by the situation (or
disparate bargaining power), rather than freely agreed to. Factors:
s monopoly of a particular field of service
everyone in a particular field insists on assumption of risk, so the service cannot be obtained
without a waiver
service being sought is really important to , so he has no alternative but to agree to the
waiver

68

Anderson v. Erie Ry. Co. (1918)

FACTS: clergyman bought reduced fare ticket; had clause
on back saying he expressly assumed all risk in consideration
for discount; train derailed, clergyman died
ISSUE: Did release in exchange for reduce rate prevent
recovery?
RULE: Releases for liability for neg usually void (public policy).
HOLDING: Yes. NL

NOTES: waiver here was bargained for; had a choice to

buy the regular fare ticket; release stands due to consideration

Tunkl v. Regents of University of California (1963)

FACTS: admitted to med center; signed waiver for neg on
part of employees; injured due to malpractice
ISSUE: Did release signed prevent recovery?
RULE: Exculpatory clauses invalid when bargaining power
uneven.
HOLDING: No. liable

NOTES: also unenforceable if they involve public interest;

patient in no position to bargain or find another hospital; risk
should shift to party better to bear it; businesses subject to

Tunkl Test:
(1) Business is subject of public regulation.
(2) Party seeking exculpation:
a. Provides service of great importance to public
b. Performs service for any (qualifying) member of public
(3) Because of essential nature of the service, party involving exculpation has decisive advantage of
bargaining strength.
(4) Release makes no provision whereby a purchaser may pay additional reasonable fees and obtain
protection against negligence.
(5) The person or property of the purchaser is placed under the control of the seller, subject to the risk of
carelessness by the seller or his agents.
Shorter v. Drury (1985)
FACTS: pregnant, fetus died; dr recommended procedure to remove; was Jehovah Witness; signed release for no blood
transfusions; procedure went badly, begged her to take blood; refused and died
ISSUE: Did waiver release from liability?
RULE: An exculpatory clause can absolve from liability out of his own negligence, but it must state that it releases the party from
liability for its own negligence.
HOLDING: No.

NOTES: found to have done operation negligently; agreement did not cover s negligence (would have been against
public policy if it did); court decided question of proximate cause (s refusal or s negligence) was a question for the jury

69

PRIMARY ASSUMPTION OF RISK: doctrine which prevents from recovering for injuries they suffer
when they freely undertake dangerous activities
Restatement (Second) of Torts 496G. BURDEN OF PROOF
If would otherwise be subject to liability to , the burden of proof of s assumption of risk is upon .
Restatement (Second) of Torts 496D. KNOWLEDGE AND APPRECIATION OF RISK
Except where he expressly so agrees, does not assume a risk of harm arising from s conduct unless he
then knows of the existence of the risk and appreciates its unreasonable character.
Murphy v. Steeplehouse Amusement Co. (1929)
FACTS: broke his kneecap when thrown from The
Flopper; had watched the ride before getting on
ISSUE: Did willingly participating bar s recovery?
RULE: One who takes part in such a sport accepts the dangers
therein so far as the dangers are obvious and necessary.
HOLDING: Yes. NL

NOTES: risk (falling) was obvious and knew that going in;
this kind of injury was foreseeable, even if this was the first
accident of this type; would have been different if the hazards
were unobserved or were obscured from view; saw them all

Woodall v. Wayne Steffner Prod. (1962)

FACTS: was human kite; told driver to go 30mph; was told
driver was a pro; he wasnt, sped, and was injured
ISSUE: Did assume the risk?
RULE: R2d 496D
HOLDING: No. liable

NOTES: surrendered his better judgment on s claim that

driver was a professional and was assured of his competency;
the bad driver was out of s control; the risks assumed did
not include not having a professional driver; one can assume
some risks without assuming all risks

70

Cohen v. McIntyre (1993)

FACTS: had dog neutered; had bitten ppl before; bit vet
when muzzle removed
ISSUE: Did owe a duty to to warn about dog?
RULE: owes no duty of care unless engaged in intentional
concealment or misrepresentation or conduct was so reckless that
it would fall outside of range of behavior ordinarily expected of
those who avail themselves of vet services.
HOLDING: No. NL

NOTES: s ordinary duty of care is negated due to the

nature of the activity and relationship of to ; risk of being
attacked or bitten is part of the occupational hazard of being a
vet; vets are in the best position to guard against dog attacks

Neighbarger v. Irwin Industries (1994)

FACTS: employees of refinery negligently caused fire;
had safety supervisors at refinery (duties included fire
brigade) were injured
ISSUE: As safety supervisors, die assume risk?
RULE: Public owes no duty to first responders.
HOLDING: No. L

NOTES: were private employees and were also not

contractually obligated to ; never paid ; had they been
public firefighters, could not sue, as public pays them (taxes)
for their services

Hendricks v. Broderick (1979)

FACTS: and hunted turkeys, unaware the other was
there; accidentally shot thinking he was a turkey
ISSUE: Did assume the risk by going hunting?
RULE: People hunt every day and nobody reasonably
anticipates one will negligently shoot them.
HOLDING: No, risk was not assumed

NOTES: right to assume until know otherwise or in

exercising due care that other hunters will exercise due care;
only accepted the natural hazards that arise from turkey
hunting and not the culpability of other humans.

Lowe v. CA League of Pro Baseball (1997)

FACTS: hit with foul ball at minor league game bc mascot
was distracting him and caused him to turn attention away
NOTES: summary judgment was denied; had a duty not to
increase the risks spectators assume; because of this, a triable
issue of fact remainedwhether breached that duty and if
it constituted negligence by increasing the inherent risk of
being struck by a foul ball

71

NEGLIGENCE IN SUMMATION

72

STRICT LIABILITY: liability imposed without regard to the actors state of mind or fault

Some activities are somewhat dangerous and, when injury results, one can be held liable for negligence, as
danger could have been minimized using due care. Other activities, however, are inherently dangerous and
are still dangerous even when all reasonable precautions are taken. These activities, when injury is caused,
can be cases for strict liability.
Strict liability creates incentive to not engage in ultrahazardous activity. engage in ultrahazardous
activity less, or take ultrahazardous activity elsewhere

Rylands v. Fletcher (House of Lords, 1865)

FACTS: #1 hired contractors to build a reservoir on his land for #2 to use; contractors discovered some old mining tunnels under the
property, but did not investigate; turned out to be connected to a coal mine owned by ; when filled the reservoir, water broke through the
bottom and flooded s mines; nobody injured, but property damage for ; could not sue contractors because they were out of business
PH: Court of Exchequer held was not entitled to recover against ; Exchequer Chamber reversed, held for ; House of Lords affirmed for
ISSUE: When a person lawfully brings something on his land which will create mischief if it escapes, what duty does the law cast upon him?
RULE: Strict liability applies where someone builds on their property, for their own private gain, something which is not common
and will cause damage to another or anothers property if it escapes.
HOLDING: liable to

NOTES: did not assume the risk from the uses for which built the reservoir had there been reciprocity of risk between and
, this would be a case of negligence; imposed the risk on purely for s own gain (for his own purposes); Cairns analysis
that strict liability applies when there is a non-natural use of the land by is ambiguous even today, as natural can mean just
about anything; this is a good case for strict liability because even if used all due care, accident still could have happened,
as large bodies of water like this carry risk of serious danger (very high L, even if P hard to determine); a case like this
differs from a highway accident even though driving is a very dangerous activity, it is common and the community benefits
from everybody driving here, building the reservoir was not a common activity and it was solely for s benefit
Crowhurst v. Burial Board (Exhequer, 1878)
FACTS: planted yew tree close to railing, grew over to a
horse, who ate it and died; did not know planted yew tree
PH: trial court for ; appeal affirmed
ISSUE: is tree planter strictly liable under Rylands?

Read v. Lyons (FROM SLIDE)

FACTS: made shells for the government; was a gov
inspector; s shell exploded and injured
ISSUE: is shell manufacturer strictly liable under Rylands?

HOLDING: no; shell did not escape the facility and

making shells for war benefits community

Rickards v. Lothian (Australia, 1913)

FACTS: was owner of commercial building; was tenant;
trespasser clogged 4th floor sinks, turned on water, and left;
flooded and leaked into s store, damaging his stock
PH: Privy Council found for
ISSUE: is owner strictly liable under Rylands?
HOLDING: not strictly liable
NOTES: a proper water supply is not only reasonable, but
has become a necessary feature of modern life
In Rylands, unilaterally caused risk for for s own
benefit; here, had pipes in building for common use
benefited from the use of running water; would not want
to put pressure on to deter him from using running
water!!

HOLDING: yes; governed by Rylands

Turner v. Big Lake Oil (SC of Texas, 1936)

FACTS: salt water overflowed from an artificial pond
used to operate oil wells, damaged s pasture
ISSUE: strict liability under Rylands?
HOLDING: not strictly liable
NOTES: in Rylands, storing water artificially was a nonnatural use because England is already so wet; here, salt
water is necessary to store bc oil is key industry (social
utility); had land owners permission to mine oil/store water
Similar to Rickards! Texas benefits from this, as is
necessary for oil production, which in turn benefits the
entire statecannot apply Rylands.

73

ONLY RECENTLY HAS USA FOLLOWED RYLANDS!

Lubin v. Iowa City (SC of Iowa, 1964)
FACTS: city followed practice of leaving pipes in place until
they broke, even as pipes neared end of life; pipe burst,
damaged
ISSUE: is owner strictly liable under Rylands?
HOLDING: yes

NOTES: water mains became extra-hazardous when this

practice was followed; even though socially valuable,

Walker Shoe v. Howards Hobby (SC of Iowa, 1982)

FACTS: owned shoe store, the hobby shop next door;
stored 550 gal of oil in his basement; leaked into s
basement, ignited by pilot light, damage to s property
ISSUE: is owner strictly liable under Rylands?
HOLDING: no

NOTES: took reasonable care; storing oil is not that

dangerous/abnormal; was not expected to occur

Restatement (Second) of Torts 519 ULTRAHAZARDOUS ACTIVITY: GENERAL PRINCIPLE

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or
chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally
dangerous.
Restatement (Second) of Torts 520. ABNORMALLY DANGEROUS ACTIVITIES
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Comment e. NOT LIMITED TO THE DEFENDANTS LAND: In most of the cases to which the rule of
strict liability is applicable the abnormally dangerous activity is conducted on land in the possession of the
defendant. This, again, is not necessary to the existence of such an activity. It may be carried on in a public
highway or other public place or upon the land of another.
Comment f. ABNORMALLY DANGEROUS: factors listed in 520 (a)-(f) are all considered and
important; not necessary that each of them is present; whether risk created is so unusual either because of its
magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for
the harm that resultseven if it is carried on with reasonable care!
Comment i. COMMON USAGE: activity is matter of common usage if it is customarily carried on by the
great mass of mankind; usual dangers resulting from an activity that is one of common usage is not regarded
as abnormaleven though a serious risk of harm cannot be eliminated by all reasonable care!

74

Indiana Harbor Belt Railyard v. American Cyanamid (7th Circuit, 1990)

FACTS: loaded acrylonitrile (flammable/toxic) into railroad care for shipment to NJ; arrived at Blue Island yard in Chicago; several hours
after arrival, employees noticed fluid leaking from broken bottom of cap on car; homes nearby evacuated; decontamination cost $918,022.75;
sued for negligence in maintaining leaking car and for strict liability for transferring such a substance in bulk through Chicago (abnormally
dangerous)
PH: trial court gave SJ to ( strictly liable); appealed, dropped count of negligence; App reversed and remanded
HOLDING: no strict liability, remanded for new trial on claim of negligence

NOTES: manufacturer of product is not considered to be engaged in abnormally dangerous activity merely bc product becomes
dangerous when it is handled or used in some way after it leaves his premises, even if danger is foreseeable; shipper held to
negligence standard, as spill was result of negligence somewhere throughout shipment; strict liability only applies when risk
cannot be eliminated through due care (could have been here); as for question of strict liability applying due to route through city,
manufacturer did not determine routeand even if they did, would have used more track (higher P even if lower L); Posner
thought it better if residents around rail yard moved; no more realistic to propose to reroute shipment of all hazardous materials
around Chicago than to propose the relocation of homes around rail yard to more distance suburbsprobably less realistic;

One economic rationale for strict liability is that it puts the pressure on parties to consider whether they
ought to be engaging in some other activity altogether; a negligence standard, by contrast, considers only
whether the activity the actor chose engage in was undertaken carefully.
Common to get summary judgment for in these cases; burden typically likes with when it is as easy as
This happened, did it.
Siegler v. Kuhlman (SC of Washington, 1973)
FACTS: drove truck/trailer of 9k gallons of gas;
performed all safety checks; pulled onto ramp, trailer jerked
loose; gas spilled and killed who drove over the puddle,
ignited it
ISSUE: strictly liable under Rylands?
HOLDING: yes
NOTES: gas in large quantity is ultrahazardous; no amount
of care can eliminate the danger; destroys evidence that
could be used to prove negligence
Distinct from Inidana Harbor, as actual transporter is
being sued here!
Klein v. Pyrodyne Corp. (SC of Washington, 1991)
FACTS: was GC hired to provide aerial fireworks on the
4th of July; mortar was knocked over, fired into crowd and
caused injuries sued
ISSUE: strictly liable under Rylands?
HOLDING: yes
NOTES: any time a person ignites rockets to blow them up
with large crowd present, a high risk of damage is created;
no way to eliminate risk with reasonable care
Some jurisdictions go the other wayusing fireworks on
special occasion can be considered common usage.

75

Madsen v. East Jordan Irrigation Co. (SC of Utah, 1942)

FACTS: owned mink farm; neighbor used explosives; minks got scared and ate their own babies
ISSUE: is shell manufacturer strictly liable under Rylands?

HOLDING: no; outside of the scope of foreseeable harm; mother minks intervention broke the chain of causation and therefore
required an allegation of negligence and not strict liability.
Miller v. Civil Constructors (Ill. App. 1995)
FACTS: firing range in rural area; struck by stray bullet
ISSUE: strictly liable under Rylands?
HOLDING: no

NOTES: public necessity (training police); located in rural

area, appropriate location

Sullivan v. Dunham (NY, 1900)

FACTS: blasting to remove trees; tree fell on highway and
killed driver
ISSUE: strictly liable under Rylands?
HOLDING: yes
NOTES: blasting is dangerous; no need to show negligence
because of danger of blasting (strict liability)

76

STRICT LIABILITY RESPONDEAT SUPERIOR (let the master answer)

Doctrine of respondeat superior generally holds employer liable for torts committed by employee in course of work.
Ira S. Bushey & Sons v. United States (2d Cir. 1968)
FACTS: drunk seaman returned from shore leave to vessel being overhauled on drydock; turned some wheels on the drydock
wall, opening valves; ship slid off blocks; parts of drydock sank and ship partially sank
PH: drydock owner () granted compensation under respondeat superior; appeal affirmed
ISSUE: Is an employer liable for employees damage when it was foreseeable that damage could have been caused in the scope
of employment, even if the employee was not performing a duty for the employer?
RULE: Employer assumes the risk for the acts of its employees which arise out of, and in the course of, their employment.
HOLDING: yes; employer is liable under respondeat superior
NOTES: sailors conduct was not so unforeseeable as to make it unfair to hold govt liable; proper test bears more
resemblance to that which limits liability for workers comp than to the test for negligence; foreseeable that crew members
crossing drydock might do damage; tendency for sailors to get wasted while ashore is too common to not be foreseeable;
sailor had come within closed-off area where his ship lay, to occupy an area to which the govt insisted he have access; his
act is not readily explicable, but it is not shown it was due to facets of his personal life; risk that seaman going to and from
the ship might cause damage to drydock is enough to make it fair that the govt bear the loss
Miller v. Reiman-Wuerth Co. (SC Wyoming, 1979)
FACTS: construction worker left jobsite with boss permission to deposit check; got into wreck on the way back; sued employer
PH: trial court have summary judgment to ; appeal affirmed
HOLDING: employer is not liable under respondeat superior
NOTES: to accept s argument that workers trip was for his happiness, which would in turn benefit the employer would open
up the scope of employment to include all policies for employee happiness, like vacation time, lunch hour, etc.; under the
legal definition of scope of employment, a reasonable mind could not find activities of these types within the scope

his is an example of vicarious liability: liability for one based on the wrongs of another.
The general rule is that an employer is not liable for torts committed by an employee while on a detour.
The rule finds its origins in Joel v. Morison (English case, 1834): The master is only liable where the
servant is acting in the course of employment. If he is going out of his way, against his masters implied
commands, when driving on his masters business, he will make his master liable; but if he was going on a
frolic of his own, without being at all on his masters business, the master will not be liable.
Classic case of frolic and detour is the employee who departs from the route assigned by the employer to pursue
his own private interests. Size of deviation needed to invoke respondeat superior is usually a question for the jury.
Konradi v. United States
A rural mailman was driving to work when he was in a car accident with . sued the United States. Rural mailmen were
required to drive their own vehicle for work and to drive in the most direct route to and from work.
Liability.
If it is true that one objective of the doctrine of respondeat superior is to give employers an incentive to consider changes in
the nature or level of their activities, the scope of employment can be functionally defined by reference to the likelihood that
liability would induce beneficial changes in activity.
o The Postal Services rule pretty much guarantees that its mailmen will drive to and from work, and by doing this it
increases the amount of driving compared to a system in which, since the mailman does not need to have his own car at
work, he can take a train or bus or join a car pool.
o If the Postal Service insists for times sake that the carrier always travel to and from work by the most direct route,
which may not be the safest route, the Service should be liable for the accidents that result from this directive.
Impose liability on employer when it would create an incentive to change their activities in a beneficial way. (Posners
economic theory)

77

Roth v. First Natl. State Bank of New Jersey

s employee tipped off her boyfriend that carried away large sums of money from the bank. Her boyfriend robbed . sued
. Trial court gave judgment to the bank on the ground that the teller had not been acting within the scope of her employment
when she tipped off her boyfriend to Roths habits. The court of appeals affirmed.
Ordinarily, if the employee deviates from the business of his employer and, while in the pursuit of his own ends, commits a
tort, the employer is not liable. Tellers conduct didnt serve employers interest. 228(2)
Forster v. Red Top Sedan Service
A Red Top bus driver attempted to run s off the highway. He then abruptly stopped in front of them and got out of the bus,
opened their door, and hit them in the face.
Trial court gave directed verdict to Red Top. Florida Court of Appeals reversed, finding that a reasonable jury could bring in a
verdict for the s
o would argue that road rage reasonably related to kind of employment; seems agitated because he is trying to stay on
schedule in order to serve his master
o would draw on Oklahoma standard that action was not a part of the work driver was supposed to do
Reina v. Metropolitan Dade County
Bus driver dispute w/ passenger; beats him up
Direct verdict for , NO LIABILITY
Distinguish from Forster
o Forster: Liability
Attack motivated by drivers attempt to advance his employers interest
Effort to serve his employer
Employee has 2 purposes: advance employers interests in getting to stop on time and hitting these
people
o Reina: No Liabiliy
Just purely a personal dispute with passenger
Not going to serve the interests of the master

R2d 265 General Rule

o (In context of Agency, P means Principal, not Plaintiff).
o A master or other principal is subject to liability for torts, which result from reliance upon, or belief
in, statements or other conduct within an agents apparent authority.
o Unless there has been reliance, the principal is not liable in tort for conduct of a servant or other
agent merely because it is within his apparent authority or apparent scope of employment.
o Illustration 1.
P [Principal] discharges A, his foreman, who regularly directs those under him where to cut timber.
Before the employees have been told of As discharge, he tells them to cut trees on Bs land, which
they do. P is liable for the trespass.
o Illustration 2.
P discharges A, his advertising manager and spokesman, known to be such by all local newspaper
reporters. The following day, before anyone learns of his discharge, for the purpose of harming both
P and T, A states to the reporter that T has been defrauding P, causing P great losses. P is liable to T
for the defamatory statement.
o Illustration 3.
P permits A to appear as his servant and A is generally known as such. While A is driving upon his
own affairs but ostensibly upon Ps affairs, he negligently runs over T, who believes A to be Ps
servant. P is not thereby liable to T.
R2d 236 Conduct Actuated by Dual Purpose
Conduct may be within the scope of employment, although done in part to serve the purposes of the servant
or of a third person.
78

Miami Herald Publishing Co. v. Kendall

Newspaper delivery boy ran over P with his motorcycle. P sued newspaper. Newspaper argued that it could not be held liable
because delivery boy was an independent contractor.
No liability.

It was left entirely to Molesworth to select the conveyance which he would use to transport the papers from the point of
origin to the subscribers front porches.

R2d Agency 220

o (1) A servant is a person employed to perform services in the affairs of another and who with respect
to the physical conduct in the performance of the services is subject to the others control or right to
control.
o (2) In determining whether one acting for another is a servant or an independent contractor, the
following matters of fact, among others, are considered...
o Comment h.
1. an agreement for close supervision or de facto close supervision of the servants work;
2. work which does not require the services of one highly educated or skilled;
3. the supplying of tools by the employer;
4. payment by hour or month;
5. employment over a considerable period of time with regular hours;
6. full time employment by one employer;
7. employment in a specific area or over a fixed route;
8. the fact that the work is part of the regular business of the employer;
9. the fact that the community regards those doing such work as servants;
10. the belief by the parties that there is a master and servant relation;
11. an agreement that the work cannot be delegated.
(First factor is the dominant factor)

79