Subject: Torts II Outline

Semester: Spring 2017

Professor: Modak-Truran
Chapter 4: Duties and Limitations
A plaintiff bringing a suit against a defendant for negligence traditionally must prove five
elements: (1) duty; (2) breach of duty; (3) cause in fact; (4) proximate cause; and (5)
damages.

A. Duties Arising from Affirmative Acts

The law generally imposes duties of care on people when they engage in affirmative acts
the sorts of acts that can create risks for others. This is the most common type of duty.
Duties arising from acts are so pervasive that some analysts consider it more useful to
regard this as the background rule of torts: people have duties to act with reasonable care
unless some exception appliesa no duty rule carved out for reasons of policy.
Duty is a question of law.
Thus, Restatement 3d Section 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
defendant has no duty or that the ordinary duty of reasonable care requires
modification.
Nonfeasance- doing nothing (a defendant who does nothing has no duty of
care to others; no liability/Section 315 provides that liability is limited to those
situations in which the D some special relationship can be established.
Misfeasance- affirmative acts done carelessly, for which defendants may be
held liable.
Restatement 2d Section 314: 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.
Restatement 2d Section 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 a 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
has no reason to believe that it will involve such risk.
Restatement 2d Torts Section 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.

Liability
Wierum v. RKO Radio General
D owned a radio station that sponsored a
contest in which the first person to locate its
DJ in the metropolitan area and answer a
question, won a cash prize. Two teenagers
No Liability
Yania v. Bigan D worked in a coal mine.
Decedent came over and the D asked him for
help draining the water from a trench. The
decedent jumped into the trench and drowned.
Widow sued the D for negligence saying that it
was his fault that he drowned. Her three
racing at 80 mph to find the DJ force another
car off the road, killing the driver. The family
sued the radio station. Jury awarded verdict
for P. D appealed relying on Section 315:
absent a special relationship an actor is
under no duty to control the conduct of the
third parties.
Involves teenagers-> not as prudent as an
adult/also an argument that teenagers are
not sensitive to incentives
Holding; The Ds argument is
inapplicable bc the act was a
misfeasance, not a nonfeasance.
Liability is not predicated upon the Ds
failure to intervene for the benefit of
decedent but rather upon its creation
of an unreasonable risk of harm to him.
(misfeasance argument) limits Yania/verbal
invitation would possibly only apply to
teenagers
Soldano v. ODaniels
D owned a saloon and an Inn. A man
entered the inn to call the police because a
man had been threatened at the saloon. The
bartender refused to call the police and let
him use the phone. The man was shot and
killed and his sons brought suit against the
owner of the establishments.
The court emphasis the threat of immediate
physical harm to a person (Public policy
places a great value on human life)
Holding: No liability if it was a private
residence; however if it is a public
establishment a duty is created to
utilize an accessible phone in times of
emergency when there is clearly
imminent danger of physical bodily
harm (Public Policy) /limits liability to
public place
B. Duties Arising From Undertakings
Sometimes a D who had no duty to a stranger may acquire a duty by undertaking to
provide assistance or otherwise voluntarily assuming responsibilities.
arguments for negligence were: 1. Urged and
enticed him to jump (argues this was an
affirmative act); 2. Failed to warn decedent of
dangerous conditions -> the danger was open
and obvious so no duty to warn; 3. Failed to go
to decedents rescue-> Bigan did not have a
legal obligation to go to his rescue unless he
was legally responsible for placing him in that
danger R 314/shows a value of autonomy in tort
law.
Holding: The decedent was a reasonable
and prudent man in full possession of all
his mental faculties, who undertook to
perform an act which he knew or should
have known was intended with more or
less peril and it was the performance of
that act and not any conduct on the
defendants part that caused his
unfortunate death./rejects the affirmative act
argument
Stangle v. Firemans Fund Insurance Co. P
bought a diamond ring, intending to sell it for
profit. He told his ex girlfriend that if she
helped him sell it he would give her proceeds
from the profit. The girlfriend met with
Richards, a representative of a prospective
buyer, to sell the ring. Richards stole the ring
while claiming to photograph it for insurance
purposes. The girlfriend attempted to use the
receptionists phone after explaining that the
ring had been stolen, but the receptionist
refused. The P sued the D on the theory that it
had a duty, after being informed of the theft, to
make its telephone available. The verdict was
granted for the D.
Rule: A duty would arise if and only if it
were clearly conveyed that there exists
threat of imminent physical harm. (Limits
Soldano)
 Restatement 2d Section 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 others 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 others reliance
upon the undertaking.
Restatement 2d 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) failure of the actor to
exercise reasonable care to secure the safety of the other while within the
actors charge, or (b) the actors discontinuing his aid or protection, if by
doing so he leaves the other in a worse position than when the actor took
charge of him.
Liability No Liability
Oneil v. Monetfirore Hospital Hurley v. Eddingfield

Mr. Oneil was having symptoms of a
heart attack. When he and his wife
arrived at the hospital, the nurse
refused to treat him bc the hospital did
not treat patients with their insurance
plan. The nurse phoned a doctor
affiliated with the Oneils insurance
plan, who after discussing Mr. Oneils
symptons told him to go home and
come back in the morning when a
doctor affiliated with the plan was
there. (The doctor gave medical advice,
as opposed to Hurley) Mr. ONeil died
when he went home. His wife sued the
doctor and the hospital. (The patient
relied on the doctors advice and died
as a result/R 323)
Rule: The law is settled that a
physician who undertakes to
examine or treat a patient and
then abandons him, may be held
liable for malpractice.
COAs holding: held for the
plaintiff that her claims should not
have been dismissed.
The doctor acquired a duty by
undertaking to giving medical advice to
The D was the family physician. The
decedent became very ill. Someone
was sent with money and told his
family doctor (special relationship) that
the decedent was gravely ill and
needed him immediately and that the
decedent was relying on him because
no other doctor was available. Without
any reason, the doctor refused to come
and the man died. (The doctor refused
to give treatment/no advice)
P sued D for 10,000 for refusal to enter
into a contract for employment which
caused the wrongful death of the
victim. Trial court sustained the Ds
demurrer to the complaint. The Indiana
Supreme Court affirmed.
The court said his license does not
engage that he will practice at all
or on other terms than he may
choose to accept. The act regulating
the practice of medicine is a preventive
measure for practicing without a
license, not a compulsive measure.
No contract here because there was
no acceptance. There is no
statutory duty here created by the
licensing of the individual.
the patient who relied on it because of
his special knowledge and died.
U.S. v. Lawter
The P and his wife out into the bay
when a wave overtook their boat. They
were about 500 yards from share and
the bay was only 4 feet deep but the
winds and waves were strong. (the
water wasnt that deep so she could
have possibly been saved without their
help) A U.S. coast guard helicopter
attempted to rescue the victims. One
of the men dropped a cable to the Ps
wife but began to lift it before she could
get herself into the sling; she was
holding on with just her hands. Before
the cable could be raised high enough
for her to get into the helicopter, she
lost her grip and was fatally injured.
The P sued, claiming that the death was
caused by the Coast Guards negligence
in allowing the most inexperienced
member of the crew to operate the
cable.
Holding: The court held that the
Coast Guard placed the deceased
in a worse position than when it
took charge and negligently
brought about her death. (Similar to
Oneil because the D undertaking to
help the Ps and then seizing to do so)
Rule: It is hornbook law that under
such circumstances the law
imposes an obligation upon
everyone who attempts to do
anything, even gratuitously, for
another not injure him by negligent
performance of that which he has
undertaken. /R. 324
Marsalis v. La Salle The Ps were
shopping in the Ds store when the wife
Franks v. United States Ps decedent
aboard a ship which suffered from
engine failure. The Coast Guard only
had one available boat for rescue,
which was a heavy motor life boat. The
decedent was thrown overboard when
a rail broke when the lifeboat heeled
sharply while attempting to tow the
boat. The Coast Guard crew attempted
to rescue the decedent but he
drowned. The administratix sued the
U.S., claiming that the decedent
drowned bc the rescue boat had a
defective reverse gear which delayed it
in reaching the victim when he fell
overboard; the life rings in the lifeboat
were so secured that they could not be
immediately thrown overboard; and the
crew of the lifeboat was less than the
customary Coast Guard complement.
(breach of duty argument)
Rule: The responsibility of the
public agency is the same as that of
a private salvor. A salvor is not
liable for a diligent rescue effort
that proved ineffectual for lack of
adequate equipment, preparation,
or personnel.
An obligation to render aid can grow
out of a relationship such as master
servant. But thats not the type of
relationship here. There was only a
diligent rescue effort that proved
ineffectual for lack of adequate
equipment, preparation, or personnel
(no special relationship) No evidence
that the Coast guard put Frank in a
worse position, it was the defective rail
on the boat that caused him to fall in.
Holding: The court held that the
U.S. was not liable.
Bloomberg v. Interinsurance
was scratched by the Ds cat. The P Exchange of the Automobile Club of
asked the D to keep the cat under Southern California Ps son was
observation for 14 days until it could be stranded on the side of the road and
determined whether or not it was rabid. called a tow truck and waited on them
The D agreed but took no special to arrive. The tow truck got lost and
precautions to keep the confined and could not find the boys. The boys truck
the cat escaped. After learning of the was struck by a drunk driver and death
cats escape, the wifes doctor gave the ensued. The Ps sued the Auto Club.
Pasteur treatment, of which she turned 323 (b) relied on the autoclubs
out to be allergic to and suffered illness. agreement to send the truck, thus the auto
It was later determined that the cat was club had a duty. Had they not relied on the
not rabid and the Ps sued the D for agreement, they could have tried to use
other methods to get home. The breach of
negligence.
duty was not knowing how to find the boys
The D was negligent in not confining
and failing to let the boys know. (Similar
the cat but was not negligent for the
argument as Lawter bc the D put the boys
cat scratch in general. Duty as a
in a worse position bc they could have been
storekeeper to confine the cat for 14
saved by someone else/such as their
days. The promise of agreement
parents 323(a) &(b)) (Also a parallel to
established the duty. 323 (b) reliance
Oneil bc the boys relied on the tow
upon the undertaking 321 Duty to Act
truckers just as the man relied on the
when prior conduct is found to be
doctors advice)
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 a duty to exercise reasonable care to
prevent risk from taking effect. he now
has a duty to confine the cat to protect
others from harm. (similar reliance theory
as Oneil) (the case is distinguishable for
Hurley because he undertook to make an
agreement with the P/in Hurley D refused
to make an undertake to offer aid)
(distinguishable from Frank bc there was
causation from the undertaking of the
agreement to confine the cat and then
failing to do so)

C. Special Relationships
1. Duties to Rescue or Assist Others
Liability
Petition of Trans-Pacific Fishing &
Packing Co. 3 crewmen were thrown
overboard at sea. The captain did not
search for the three men bc of
dangerous conditions. He did call for
assistance but no one came. One was
rescued after 14 hours and being
attacked by a sea turtle. Another was
No Liability
Charles v. Seigfried The P alleged
that the D knowingly allowed a 16 year
to become intoxicated and at the Ds
party and knowingly allowed her to
drive home drunk. She was killed in a
car wreck.
Common Law Rule: There is no
cause of action for injuries arising
recused after 56 hours and had to be
hospitalized. The third man was never
found.
Rule: It is the duty of every ship
owner and ship operator to use
every possible available means to
rescue from the sea any and all
persons and member of its crew
who may be unfortunately washed
overboard. (special relationship of
captain and crew and the captain has
special training so there would be less
risk for danger on his part) (by the law
recognizing this special relationship its
solving the multiple rescuer problem)
(Distinguishable from Ylania bc the D
did not have special training and it
involved open and obvious danger)
Here the captain made no effort
whatsoever and also failed to keep the
boat in a position so it could be used to
search or assist the men.
Holding: held that the captains
inaction was a breach of duty
constituting negligence on his part and
the owners.
out of the sale or gift of alcoholic
beverages. The rationale behind
the rule is that the drinking of the
intoxicant, not the furnishing of it,
is the proximate cause of the
intoxication and injury. Public Policy:
If a duty were imposed in every
instance where an underage driver is
involved in alcohol-related car accident
any adults who may qualify as a host
would be dragged into court. This
would open a pandoras box bc we
would not know where liability ends.
The courts want to provide an incentive
for the drinker to act responsibly. The
social host could be held responsible
even if the parents were also in
attendance.
Holding: The D is not liable.

Kelly v. Gwinnell The D was a social

host whos intoxicated guest killed a
third party in a car accident.
Holding: The social host is liable to
the third party. (arguments that this
approach decreases the incentive for
the drinker to use due care) Public
Policy argument: the burden imposed
on the social host should be measured
against the destruction to society
causesd by the drunk driver)

2. Duties to Protect Others from Third Parties

In cases involving a Ds duty to protect the P from harm inflicted by a third person,
the duty is sometimes based on the relationship not between the P and the D but
between the D and the party causing the harm.
2n R of Torts 315 General Principle: There is no duty so to control the of a
third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which
imposes upon the actor to control the third persons conduct, or (b) a special
 relation exists between the actor and the other which gives to the other a
right to protection.
Liability No Liability
Tarasoff v. Regents of the University Thompson v. County of Alameda:
of California:
Facts: P were the parents of a murdered Facts: Ps and their young son lived
student who sued psychotherapists and next door to the mother of a juvenile
police officers employed by the university. delinquent who was being released.
Poddar told his psychologists he intended to The juvenile told authorities that he
kill the Ps daughter when she returned would kill a young child once released.
home from abroad. The campus police
The county still released him w/o
detained him on Moores request but
released him. No one warned the deceased
warning those within the vicinity of his
of the Ds plans. P sued for failure to detain home of his release, and hill killed the
a dangerous patient, failure to warn of a Ps son within 24 hours. Ps sued the
dangerous patient, which was amended to county for failure to warn parents with
allege that the deceaseds death young children in the close vicinity.
proximately resulted from Ds negligent (no readily identifiable victim)
failure to warn deceased or others of her
danger. Ds state they owed no duty of care Unlike members of the general public
to the deceased and were free to act in in Tarasoff were the potential victims
careless disregard. were specifically known and precise,
the victims here would make up a
Ruling: The court ruled that while as a broad segment of the population and
general rule, one person owed no duty be general in nature. The likelihood
to control the conduct of another, nor to that such warnings be repeated would
warn those endangered by such do little as a practical matter to
conduct, but one exception to this rule stimulate safety measures. It also may
is when the D stands in some special substantially jeopardize rehabilitative
relationship to the foreseeable victim of efforts and stigmatize released
that conduct. Here the relationship of offenders.
the defendant therapists to either the
deceased or Poddar will suffice to
establish a duty of care. Therapists
need only exercise that reasonable
degree of skill, knowledge, and care
ordinarily possessed and exercised by
members of that specialty under similar
circumstances.

Public Policy Argument for Public

Safety: Here public policy favors that
protection of the confidential character
of the psychotherapist/patient
communications must yield to the
extent to which disclosure is essential
to avert danger to others. The
containment of such risks lies in the
public interest.
Police defendants had no special
relationship and are not liable.
(possibly bc police frequently hear
individuals make threats and cannot be
burdened with detaining everyone)
Distinguish Yania which had no
Special Relationship; Ds had no special
knowledge; victim was aware of the
risks; there was more risk to the
rescuer
315 (a) Here the actor is the doctor or the
doctors, and the third party is the killer.
(There was a special relationship b/t the
doctor and the killer, the doctor had special
training, and there was no burden on the
doctor to warn.) (No one else could have
warned Tatiana and they took no effort to
warn them so no multiple rescuer
argument)

Kline v. 1500 Mass. Ave. Corp.

Facts: was assaulted and robbed in the

common hallway of a building where she
rented her apartment. She sued the corp.
that owned the building. When the P first
arrived, there was security at the main
entrance but after a year there was no
longer a doorman and security at the other
entrances to the building declined as well.
Many tenants began getting robbed and
injured by third parties and the owner was
very aware of this. The DC gave judgment
as a matter of law to the D stating he had no
duty to protect his tenants and the CoA
reversed.

As a general rule, a private person does

not have the duty to protect another
from a criminal attack by a third person
but the tenant-landlord is a common
law tradition that the court has not
tampered with. However, in multiple
dwelling houses, this does not apply.
The landlord is no insurer of the
tenants safety but he is certainly no
bystander. Because he had notice of the
repeated incidents and the premises
occurred in the portion of the premises
exclusively w/n his control, and he also
had every reason to expect crime would
occur again and has the exclusive power
to take preventative action, it is not
unfair to place upon the landlord a duty
to take those steps which are w/n his
power to minimize the predictability
risk to tenants. Only the landlord can
take measures in this case. While the
tenants may end up paying due to
increased rent, they are already paying
by being robbed and assaulted. With the
notice of prior robberies, the owner
decreased night guards and monitoring
of the doors. The K can allocate
responsibility (however the K argument
is not really applicable bc the crime
occurred in the common area not her
specific apartment.)

Public Policy Arguments:

(1) Landlord on Notice of problems with
crime (& other tenants)
(2) Exclusive Control of Premises by
Landlord
(3) P lived in building since 1959
where there was a door person,,
and locked door
v.

Traditional Tort Doctrine NL:

(1) Nonfeasance
(2) Superseding Cause Criminal
Activity/proximate cause

The Public Duty Doctrine

Sovereign immunity: A common law doctrine that forbids lawsuits against
the government without its consent.
- The federal government and most states have waived this immunity for
various purposes, allowing tort suits to be brought against themselves under
certain circumstance.
When such suits are permitted, however, establishing the existence of a duty
often is difficult. For example, it might seem obvious that police have a duty
to come to the aid of people in distress; however, courts have interpreted this
as a duty to the public at large, rather than to any particular individual. A P
can only bring a lawsuit of this sort by demonstrating the existence of a
special relationship with the D.
Liability No Liability
Schuster v. City of New York Riss v. City of New York (1968)

Facts: Victim was informant who provided Facts: P ended a relationship with
police with information the led to the arrest boyfriend after finding out he was married.
of a nationally renowned criminal. The
victims role in the arrest was made public
and he began receiving threats on his life.
Victim informed police, but no protection
was provided. Victim was shot and killed 3
weeks later. The P alleged that the city had
a duty to protect people who had
cooperated in law enforcement.
Rule: Where persons actually have
aided in the apprehension or
prosecution of enemies of society, a
reciprocal duty arises on the part of
society to use reasonable care for
their police protection, at least where
reasonably demanded or sought.
Public Policy: If held that the city has no
duty, it would become difficult to convince
the citizen to aid and co-operate with the
law enforcement officers. Because the
witness did something for the public good,
a duty is owed to him to protect him from
what may come as a result.
Reasoning: The government was active in
calling upon private citizens for help in the
apprehension of the criminal; therefore,
failure to furnish police protection
(inaction/nonfeasance) would actively cause
an injury to the person.
Holding: The city had a duty to use
reasonable care for the protection of
the victim which it is liable for
breaching.
(1) Witness for publicity of the city
(2) Public Good:
(a) helping system
(b) put yourself in peril
D. Duties Arising From The Occupation of Land
Boyfriend repeatedly threatened to kill or
maim her if she left. P repeatedly went to
the police for protection and nothing was
done. Boyfriend hired thugs to throw lye in
Ps face, which left her blind and scarred. P
sued the city.
Rule: The amount of protection that
may be provided is limited by the
resources of the community and by a
considered legislative decision as to
how those resources are allocated.
(The legislature decides how police
resources are allocated; not courts)
Reasoning: For the court to proclaim a
new and general duty of protection in the
law of tort, even to those who may be the
particular seekers of protection based on
specific hazards, could and would
inevitably determine how the limited police
resources of the community should be
allocated and without predictable limits.
Policy Issue: If the court created a new
duty of protection it would determine how
the limited police resources of the
community should be allocated and without
predictable limits. The effects could be
that all the resources are invested in places
with higher crime patterns, leaving other
areas w/o protection.
Holding: The courts do not have the
power to impose this duty.
SEPARATION OF POWERS
Dissent: Law prohibits P from carrying a
weapon for self-defense so she was
required to rely on the City for protection.
Imposing this duty on the city could result
in the adoption of better and more
considered procedures. No presumed
cure for the problem of crime would be
imposed on the city because the methods
of dealing with the problem is left
completely to the citys discretion. -- The
court would only make sure the city is held
responsible for its mistakes.
 1. Duties to Trespassers
Rest. 2nd of Torts: 333 Obligations to Trespassers- General Rule Except as stated 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 as not to endanger them.
Rest. 2nd of Torts 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 one activity involving a risk of
death or serious bodily harm with reasonable care for their safety.
Rest. 2nd of Torts 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 and b) the condition is of
such a nature that he has reason to believe that the trespasser will not discover it or realize
the risk involved.
Rest. 2nd of Torts 339 - Artificial Conditions Highly Dangerous to Trespassing
Children: A possessor of land is subject to liability for physical harm to children
trespassing thereon caused by an artificial condition upon the land if
a) the place where the condition exists is one upon which the possessor knows or has
reason to know that children are likely to trespass, and
b) the condition is one of which the possessor knows or has reason to know and which he
realizes or should realize will involve and unreasonable risk of death or serious bodily harm
to
such children, and
c) the children because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous by it and
d) 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
e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to
protect the children.

Attractive Nusiance: From Landes and Posner, The Economic Structure of Tort Law 95-96
Children frequently are attracted to dangerous conditions on land, such as railroad turntables and
swimming holes. As Trespassers they would under conventional tort principles be Barred from
recovering damages if injured by one of those conditions even if the cost of fencing to the landowner
was also less than the expected accident cost so that the landowner was negligent too. Since the cost
of not trespassing is ordinarily much lower than the landowner's cost of fencing, this might
appear to be an alternative care case where the victim's cost of avoidance are lower than those of the
injurer, making no liability the appropriate rule. But by virtue of the attractive nuisance doctrine, the
landowner's negligence is not excused by the child's status as a trespasser.
The cost to the children -- More realistically, to their parents -- of avoiding the lure of the
attractive nuisance are often greater than the cost to the landowner of fencing out the
children.

Liability
Herrick v. Wixom The P snuck into the
circus w/o a ticket. A clown set off a
firecracker and a stray piece struck the P
in the eye 30 feet away. The P sued the
circus for negligence. The trial court
No Liability
Haskins v. Grybko D went outside one
night to hunt woodchucks that had been
destroying his crop. The D heard rustling
in the bushes and saw a moving object.
Thinking it was a woodchuck, the D shot
 brought a verdict for the D, after
instructing the jury that if the P was a
trespasser, the D owed him no duty that
would enable him to recover.
Rule: Where a trespasser is discovered
upon the premises by the owner or
occupant, he is not beyond the pale of
the law, and any negligence resulting
in injury will render the person guilty
of negligence liable to respond in
damages.
Analysis: The presence of the P was
known when the act occurred, and the
danger to him from a negligent act was
also known.
Holding: The question of whether a
dangerous experiment should be attempted
in his presence, or whether an experiment
should be conducted with due care and
regard to his safety, cannot be made to
depend on whether he was a trespasser.
into the bushes; however, he had actually
shot and killed a person. The P sued D for
negligence and won in the trial court,
which ruled the D was guilty of ordinary
negligence.
Rule: If the intestate was a trespasser
upon the Ds land, the latter was not
liable for mere negligence. The D was,
however, under an obligation to refrain
from intentional injury and from
willful, wanton and reckless conduct.
Holding: The victim was a trespasser;
therefore, the D was not liable for mere
negligence. (the lack of knowledge that
the object was a trespasser is key here bc
the D cannot intentionally injure someone
who he does not know to be a person)

Licensees
a. Social guests
i. Ex. Others with owners consent
ii. Duty of ordinary care in undertaking activities, duty to warn of dangerous hidden conditions of
which owner is aware. There is no duty to inspect premises to make them safe, visitor takes premises
in the same condition the owner does.

Rest. 2nd of Torts 330 Licensee Defined: A licensee is a person who is privileged to enter or
remain on land only by virtue of the possessors consent.
Rest. 2nd of Torts 341 Activities dangerous to Licensee- 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.
Rest. 2nd of Torts 342 Dangerous Condition Known to Possessor- A possessor of land is
subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
a) the possessor knows or has reason to know of the condition and should realize that it involves an
unreasonable risk of harm to such licensees, and should expect that they will not discover or realize
the danger and
b) he fails to exercise reasonable care to make the condition safe or to warn the licensees of the
condition and the risk involved and
c) the licensees do not know or have reason to know of the condition and the risk involved

Duties to Licensees
Liability
Lordi v. Spiotta - LIABILITY - The plaintiff
and his son were staying with the
defendant at his home that had a hot water
boiler
in the basement. The defendants son had
lit the hot water boiler and asked the
No Liability
Davies v. McDowell National Bank The
plaintiffs went to visit Thomas who was
feeling ill after a doctor came and attended
to Thomas they promised to stay with him
until he felt better. Thomas and Mrs.
Davies were found dead and Mr. Davies
 defendant to turn it off. The defendant
thought he did but in fact he hadnt. He
asked the plaintiff to go to the basement to
light the boiler when he did it caused an
explosion that killed the plaintiffs son.
(social guest)
Rule: When a defendant asks a guest
to enter a vicinity that through the
defendants negligence is a dangerous
area he is liable for the damages that
incur.
The D on asking the P to go into the cellar
to light the heater certainly held out the
place for the performance of the service
requested to be free from concealed peril;
(active negligence (imperfectly
closing water heater valve) creates
liability without knowledge) This
seems to be fudging a little bit by
having passive and active negligence.
Here the distinction is not clear.
Normally, there is only a duty to warn
of dangerous hidden conditions of
which the owner is aware and there is
no duty to warn or inspect for social
guests who take the premises in the
same condition the owner does.
was unconscious from to carbon monoxide
poisoning due to the fire the damper on the
chimney being rusted shut.
The court classifies the victims as
social guests due to the existing
relationship of stepfather/daughter
and their past association, and bc they
were there to check on him.
ROL- Social guests are gratuitous
licensees. To this class the owner of
premises is liable for bodily harm
caused by a latent dangerous condition
existing thereon only if he has
knowledge of the condition and fails to
give warning to the guest and the
guest are not likely to discover.
(Fireplace rusted shut but he had no
knowledge of it and therefore no duty to
warn bc they were social guests. For
social guests, there is no duty to
inspect.); Passive negligencerusty
flue rather than active negligence

Duties to Invitees
a. Business visitors or open public
i. Duty of reasonable care with respect to everything
ii. Duty to inspect the property and duty to warn visitors of hazards and all activities
Rest. 2nd of Torts 332: Invitee Defined-
1) an invitee is either a public invitee or a business visitor
2) a public invitee is a person who is invited to enter or remain on land as a member of the public for a
purpose for which the land is held open to the public
3) A business visitor is a person who is invited to enter or remain on land for a purpose for which the
land is held open to the public.
Comment 1- 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. Thus one who goes into a shop which occupies part of a
building, the rest of which is used as the possessors residence, is a trespasser if he goes
into the residential part of the premises without the shopkeepers consent; but he is a
licensee if the shopkeeper permits him to go to the bathroom or invites him to pay a social
call.
Rest. 2nd of Torts 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.
Rest. 2nd of Torts 343 Dangerous Conditions Known to or Discoverable by Possessor: A
possessor of land is subject to liability 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 an 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
c) fails to exercise reasonable care to protect them against he danger.
Liability
Jacobsma v. Goldbergs Fashion
Forum- Liability. The plaintiff and
his wife were entering a store when
the stores manager pointed at their
area and said stop thief the plaintiff
then injured himself in an attempt
to stop the thief that was heading
his way.
Rule: The plaintiff was a
business invitee who upon
entering the store the defendant
owed a duty to exercise ordinary
care for his safety. The D had
actual knowledge that the danger
due to a prior attempt with the
shoplifter.
He was not a volunteer because his
size and proximity would lead him
to believe that the managers
(actual authority) instructions to
stop that thief were directed to him.
Also, the fact that the Ps purpose in
attempting to restrain the shoplifter
was to benefit the D, which is
sufficient to sustain invitee status.
Holding: The D breached his duty
of care to the P as a business
invitee.
Rowland v. Christian Plaintiff was
visiting defendant at her apartment
and cut his hand on her water
faucet that she had asked her
maintenance man to fix. (Social
guest)
The D had asked her landlord to fix
the faucet a month earlier. (D had
actual knowledge, but did not warn)
Rule: The test to be applied is
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
No Liability
City of Boca Raton v. Mattef - Mattef
offered to paint the towns name on the
side of the water tower. The council voted
to award Mattef the job as long as the
towns attorney drafted the contract. The
attorney told Mattef that the contract had
not been drawn up because he needed
more information about the job and told
Mattef to discuss them with the town
Engineer. Mattef attempted to paint the
water tower anyway and while climbing the
tower he saw the superintendent (who did
not have authority over the tower) of the
water plant and told him of his plans. The
superintendent did not make any
comments. During the course of the job a
rung on the lawyer and he fell to his death.
His wife sued for $25,000. ROL- an invitee
is normally considered to be one who
enters a premises of another for
purposes connected with the business
of the owner or occupant of the
premises. However, when someone
decides of their own volition in the
fulfillment of an undertaking related to
his own business is a licensee. (R. 342
the duty to a licensee is to warn of
known dangers, however there was no
knowledge) P was not a business
invitee bc the K wasnt finished and he
wasnt a trespasser bc he received
implied consent from the
superintendent. So social guest? Had
there been a K, it could have specified
responsibility for accident.
Carter v. Kinney Carter was a member of
a bible study group that was held at the
Kinneys house. He slipped on a patch of
ice there and broke his leg. He then sued
to recover for his injuries.
Holding: The court upheld the
licensee/invitee distinction because it
creates fairly predictable rules within
plaintiffs status as a trespasser,
licensee, or invitee may in the
light of the giving rise to such
status have some bearing on the
question of liability, the status is
not determinative.
Holding: Bc the D was aware of
broken faucet, he had a duty to
warn.
which entrants and possessors can
determine appropriate conduct and
juries can assess liability.
Carter was a licensee because they werent
here for a material benefit thus there was
no duty to inspect. The ice in the driveway
was considered as an unknown dangerous
condition and the D was unaware.

E. The Privity Limitation

If A and B enter into a K, and B performs it negligently. C is injured as a result. Clearly A
has rights against B; but does C? Courts sometimes have said no, imposing limits on the
duty that a D owes a third party injured when the D breaches a K. The limit is said to be
based on the fact that C has no contract (or is not in privity) with B.

The Privity Limitations

Liability
Glanzer v. Shepard. The D was hired by
a seller of beans to weigh the beans being
sold to the Ps. The Ps paid the man
according to the weight. When the Ps
attempted to resell the beans they found
that the actual weight was less than the
weight the D had certified. Ps sued D to
recover the amount they originally had
overpaid to the bean seller.
Holding: The law imposes a duty toward
buyer as well as seller in this situation.
Reasoning: The Ps use of the certificates
was not an indirect or collateral
consequence of the action of the weighers.
It was a consequence which, the weighers
knowledge, was the end and aim of the
transaction. The sole purpose of the Ds was
to correctly weigh the beans->more
predictable
Biakanja v. Irving The D prepared the
will of the Maroevich, which gave all of the
mans property to his sister. The D
neglected to have a witness present at
Maroevichs signing of the will, which
made it invalid. As a result, Maroevichs
sister only received one-eighth of her
brothers estate instead of all of it. She
sued the D.
Rule: The determination of whether
the D will be held liable to a third
person not in privity requires a
No Liability
H.R. Moch Co. v. Rensselaer Water Co.
The D made a K with the city to supply
water for service at fire hydrants, and
water was to be furnished to private takers
within the city at their homes and factories.
During the contracting period, a fire
spread to Ps warehouse. The D was
notified but neglected to supply adequate
quantity of water and pressure to suppress
the fire. As a result, the Ps warehouse was
destroyed. The P alleged that the Ds
breach of the K between it and the city was
the cause of its damaged and brought an
action for breach of K and tort. Rule: To
give a right of action to a member of
the public, the benefit provided by the
D must be one that is not merely
incidental or secondary. It must be
primary and immediate in such a sense
and to such a degree as to bespeak the
assumption of a duty to make
reparation directly to the individual
members of the public directly to the
individual if the benefit is lost.
Holding: A K between a city and water
company to furnish water at the city
hydrants has in view a benefit to the public
that is incidental rather than immediate, an
assumption of duty to the city and not to its
inhabitants.
Reasoning: Everyone making a promise
having the quality of a contract will be
balancing of the following factors: 1.
The extent to which the transaction
was intended to affect the plaintiff 2.
The foreseeability of harm to him
3.The degree of certainty that the
plaintiff suffered injury 4.The
closeness of the connection between
the defendants conduct and the injury
suffered 5.The moral blame attached to
the defendants conduct 6.The policy of
preventing future harm.
Holding: The D did not receive all of her
brothers estate only because of the Ds
negligence, which was a direct cause of the
Ps injury. Concerned with a pocket of
immunity bc the person who the D was
actually in K with was dead, so he should
be held liable to the person that he injured.
under a duty to the promisee by virtue of
the promise, but under another duty apart
from contract to an indefinite number of
potential beneficiaries when performance
has begun. The assumption of one relation
will mean the involuntary assumption of a
series of new relations, inescapable hooked
together and the law does not spread its
protection that far. The court used the no
privity of contract argument. There
was a policy issue stating that if they
placed a duty on the water company
the field of obligation would be
expanded beyond reasonable limits.
Privity is being within the relationship
of a contract. The court discussed the
fact that this would open up unlimited
or indefinite liability. If they found the
D liable they would be practically
making the water company an
insurance provider for any claim
resulting from inadequate water, i.e.
fire Here there would have been an
indefinite scope of liability.
Einhorn v. Seeley Woman was raped in
her fiance's building. She sued the
locksmith who negligently replaced the
lock on the door.
Analysis: There was a contract between
the landlord and the locksmith but the
Plaintiff had no privity to that contract. Her
fianc might have been a third party
beneficiary to the contract, but there was
no special relationship between the woman
and the locksmith. There is also no
predictability between the locksmith and
the woman. Also there could be intervening
causes she cannot know for sure that the
faulty locks were what let the man in. She
possibly could have sued the landlord for
his failure to protect. This duty is likely
tenuous, she was a licensee, just a duty to
warn IF he knows of the faulty lock.
Different from Biakanja because here
there is an intervening 3rd person, the
rapist, who causes the harm.
F. Pure Economic Losses
Difference between pure economic loss and the privity limitation
a. The privity limitation
i. Limits recovery for negligence only if it occurs while performing a
contract
ii. Cuts off liability even if personal injury or property damage
iii. Overlap casesNegligence in performing a K for a 3rd Party and
b. Pure Economic Loss Rule
i. Limits recovery for negligence even if it occurs while not performing a
contract
ii. Cuts off liability only if no personal injury or property damage
iii. Overlap casespure economic loss (i.e. no personal injury or property
damage)
iv.. Exceptions: Union Oil co The American cases reflect a similar
development. There are numerous cases indicating that economic losses
may be recovered for the negligence of pension consultants, accountants,
architects, attorneys, notaries public, test hole drillers, title abstractors,
termite inspectors, soil engineers, surveyors, real estate brokers, drawers of
checks, directors of corporations, trustees, bailees, and public weighers.

Liability
Newlin v. New England Telephone The
Ds telephone poll fell onto a power line. As
a result, the Ps factory lost power and he
was not able to keep his mushrooms as the
appropriate temperature. The mushrooms
died, and the P sued for negligence.
Holding: The complaint state a good
cause of action. Here there was actual
physical property damage.
People Express Airlines, Inc. v.
Consolidated Rail Corp.- Minority - A fire
started at the Ds rail yard creating an
explosion risk consequently the city had to
be evacuated and the plaintiffs business
activities were forced to cease causing
workers to be unable to work and flights to
be delayed. Reasoning: The element of
foreseeability emerges as a more
appropriate analytical standard to
determine the question of liability than a
per se prohibitory rule. The extent to which
the defendant knew or should have known
the particular consequences of his
negligence, including the economic loss of
a particularly foreseeable plaintiff, is
No Liability
Robins Dry Dock & Repair Co. v. Flint P
chartered a boat from the owners. There
was an agreement that the boat would be
cleaned every 6 months. During the
cleaning, a crack was discovered in the
propeller. The owners hired Robins Co., the
D, to install a replacement. One of the Ds
employees negligently dropped the new
propeller, causing a 2 week delay before
the boat could be used by the Ps. The Ps
sued Robins Co.
Rule: A tort to the person or property
of one man does not make the tort-
feasor liable to another merely bc the
injured person was under a K with that
other unknown to the doer of the
wrong. (Privity Limitation) The K of the
D with the owners imposed no immediate
obligation upon the D to third persons.
(Theres an incentive for the boat owner to
hold the Robins Co. liable so theirs is no
pocket of immunity problem that we saw
Biankanja)
Pure Economic Loss Rule: Robins has
come to stand for the general notion that a
plaintiff who suffers no physical injury
generally cannot recover for
pure economic losses caused by a
dispositive of the issues of duty and fault.
Holding: A defendant owes a duty of
care to take reasonable measures to
avoid the risk of causing economic
damages, aside from physical injury, to
particular plaintiffs comprising an
identifiable class with respect to whom
defendant knows or has reason to know
are likely to suffer such damages from
its conduct. A defendant that fails to
adhere to this duty of care may be
found to be liable for such economic
damages proximately caused by its
breach of duty. An identifiable class of
plaintiffs must be particularly
foreseeable in terms of the type of
persons or entities comprising the
class, the certainty or predictability of
their presence the approximate
numbers of those in the class as well as
the type of economic expectations
disrupted. Reasoning: The plaintiff was
close and it was obvious that their
operations would be impeded by such
accident. Thus it was foreseeable.
Modaks comments: there must be an
identifiable class of plaintiffs and the
defendant must know or have reason to
know the injured will suffer damages.
Theres an identifiable class here. This case
is to give an incentive to reasonable care.
defendants negligences. The privity rule
limits recovery for negligence to only
injuries that
occur during the course of the contract
being performed. The robins rule thus
extends to causes arising from
freestanding acts of negligence not
committed in the course of performing a
contract. (incentive for companies to get
business interruption insurance)
General Ruleif you have any losses you
can go for economic damage, but if it is
just pure economic losses you cant.
532 Madison Avenue Gourmet Foods,
Inc. v. Finlandia Center, Inc. No
liability - The defendants building
collapsed which resulted in the businesses
surrounding the building to have to close
for a period of time. Consequently they
sued to recover there loss. The NY court of
appeals dismissed the complaint based on
a policy issue. A landowner who engages
in activities that may cause injury to
persons on adjoining premises surely
owes those persons a duty to take
reasonable precautions to avoid
injuring them. However, it is not held
that a landowner owes a duty to
protect an entire urban neighborhood
against purely economic losses.
(Indeterminable group)
The Appellate Division wants liability.
Foreseeability. Leaving no liability;
incentive for risky behavior
Phoenix Professional Hockey Club v.
Hirmer - No Liability - Plaintiff owned a
pro hockey team. The D injured Ps goalie
in a car accident and P sued to recover
damages because he had to hire a new
goalie. The case was dismissed. No
liability because no physical injury to
the team, because the team does not
own the goalie. (Pandoras box)
Bryd v. English D was a building a house
near the Ps printing firm. The Ds agents
dug underneath a sidewalk and damaged a
power line, which cause the Ps printing
firm to be deprived of electricity and
 unable to operate for several hours. There
was no contractual liability. There was not
actual property damage unlike the
mushrooms in Newlin. (problem of
indeterminate group of Ps)
Barber Lines A/S v. M/V Donau Maru -
Majority- D spilled oil into the harbor
prevent P from docking. As a result P had
to pay additional docking and unloading
costs. P sued trying to recover the
additional expenses. For policy reasons
because the
potential financial victims are vast and this
would increase the expense of tort
litigation when there are more affordable
means of recovery insurance.
Foreseeability is too indeterminate
It does not surprise us then that under
these circumstances courts have neither
enforced one clear rule nor considered the
matter case by case. Rather they have
spoken of a general principle against
liability for negligently caused financial
harm, while, creating many exception.
These exceptions seem designed to pick
out broad categories of cases where the
administrative and disproportionality
problems intuitively seem insignificant or
where some strong countervailing
consideration militates in favor of liability
thus an award of financial damages to one
also caused physical harm does not
threaten proliferation of law suits, for the
plaintiff could sue anyway (for physical
damages). Financial harm awards to family
members carry with them an obvious self
limiting principle (as perhaps does
awarding such damages to fishermen, as
favorites of admiralty). Awarding damages
for financial harm caused by negligent
misrepresentation is special in that,
without such liability, tort law would not
exert significant financial pressure to avoid
negligence.

Negligent Infliction of Emotional Distress

Rest. 3d of Torts: Section 46: Negligent Conduct directly inflicting emotional disturbance
on another. An actor whose negligent conduct causes serious emotional disturbance to
another is subject to liability to the other if the conduct:
a) places the other in immediate danger of bodily harm and the emotional disturbance
results from the danger or
b) occurs in the course of specified categories of activities, undertakings, or relationships in
which negligent conduct is especially likely to cause serious emotional disturbance.
Rest. 3d of Torts: Section 47 Negligent infliction of emotional disturbance resulting from
bodily harm to a third person
An actor who negligently causes serious bodily injury to a third person is subject to liability
for serious emotional disturbance thereby caused to a person who
A) perceives the event contemporaneously and
B) is a close family member of the person suffering the bodily injury.
"Some courts reject this approach, and some of those that accept its outlines nevertheless
differ on the details. Consider whether the following cases can be reconciled."

Liability No Liability
Robb v. Pennsylvania Railroad Co.-
Liability Issue: May the plaintiff recover for
the physical consequences of fright caused
by the negligence of the defendant? Facts:
There was a rut at one of the defendants
railroad crossings in which the rear wheels
of the plaintiffs car became stuck. The
plaintiff had to jump from the track to
avoid being struck by an oncoming train.
Her car was destroyed in the process.
While she wasnt physically injured she did
suffer harm and shock that she claimed
interfered with her ability to parent and
work. Trial judge gave D summary
judgment because the plaintiff sustained no
physical impactsome connection between
the two. Holding: Where negligence
proximately caused fright within the
immediate area of physical danger
from that negligence, which in turn
produced physical consequences such
as would be elements of damage if a
bodily injury had been suffered, the
injured party is entitled to recover
under an application of the prevailing
principles of law as to negligence and
proximate causation. Judgment
Reversed. Reasoning: Every man for an
injury done to him in his person shall have Lawson v. Management Activities- No
remedy by the due course of law. Modaks liability The trial court dismissed the
comments: There must be physical complaint to recover for emotion distress
consequences and those are too remote that was made by employees at a
and generally unprovable. Here they are dealership who saw an airplane go into a
requiring at least some kind of (1)physical dive near them. Here a Pandoras box is
injury (bodily injury or sickness) flowing open because the zone of danger, physical
from negligence. Mere fright yields no consequences and injury are all
recovery. (2) Physical consequences unpredictable. Modaks comments- The
cannot be too remote or unprovable (with people werent in the immediate zone
advances in medical knowledge, things are of physical risk.
more provable). (3) Public policy and Holding the company liable would not
expediency
Quil v. Trans World Airlines-The plaintiff
was flying on Ds aircraft when it went into
a tail spin and the pilot only pulled it out of
the tailspin 5 seconds before it was about
to crash. The plaintiffs job required him to
fly and since then he has experienced much
discomfort high blood pressure and
anxiety. The jury awarded him $50,000.
Plaintiff was in the immediate zone of
danger bc he was actually a P on the plane.
And he suffered actual physical
consequences which both are
distinguishable from Lawson.
Policy Factors: (1) The degree of
certainity injury to passengers and (2) A
high degree of certainty that passengers
would be injured (3)here it is more
foreseeable that passengers will be injured
so scope of liability is not unpredictable.
Perry-Rogers v. Obasaju- liability- The
plaintiffs were undergoing invitro
fertilization when the embryo theyd
created was implanted into another
womans body. The woman refused to give
them the child after birth; did not receive
the child until four months later. They
sued the clinic for emotional distress due
to lack of prenatal bonding experience of
pregnancy and the four months after the
childs birth that they were deprived of the
child for four months. Reasoning: it is
foreseeable that the information of the
mistake would cause them great distress as
their desire for the child was evidence by
the amount of effort they took to conceive.
Parents are directly injured here. Modak
distinguishes this case from Johnson by
saying that it seems to be treating the
embryo as property. Here it was
foreseeable that the parents would be
injured and there is a more predictable
scope as well. ROL- Damages for
emotional harm can be recovered even
in the absence of physical injury when
there is a duty owed by defendant to
plaintiff and a breach of that duty
results directly in emotional harm.
provide an incentive to airplane companies
to be more careful bc pilots already have
incentive to fly safely to avoid crashes;
Pilots arent really focused on not injuring
people on the ground bc they are more
focused on not crashing at all and the
safety of the people on the plane
Johnson v. Jamaica hospital- no liability-
the plaintiffs daughter was stolen from the
hospital right after her birth and wasnt
recovered until four months later. The
plaintiffs are suing for emotional distress
they incurred during that time as a result
of the hospitals negligence.
Court: The court found there was no direct
duty to the plaintiff. The direct duty
allegedly cause by Ds negligence was
sustained by the infant and the parents
grief are not actionable (indirect injury).
There was a public policy argument that to
permit recovery by the infants parents for
emotional distress would be to invite open
ended liability where the very young or
very elderly or incapacitated persons
experience negligent care or treatment.
Similarly, the general rule in contract
cases is that absent a duty upon which
liability can be based there is no right
of recovery for mental distress
resulting from the breach of a
contractual related duty. The
foreseeability that such psychic
injuries would result from the injury to
the child does not serve to establish a
duty running from defendant to
plaintiffs and in the absence of such a
duty as a matter if law there can be no
liability.
Also, the court dispelled the argument that
the defendant stood in loco parentis bc it
requires more than mere temporary care
and custody, but an intent to support and
care for the child on a permanent basis
must be shown. Modak- this case is
troublesome since the child is already born
they have their own rights and they would
have to bring the case. This has an
unpredictable scope of liability because a
third party can recover when the elderly or
a baby suffers negligence. Foreseeability
There is no requirement that the
plaintiff must be in fear of his or her
own physical safety. However a plaintiff
must produce evidence sufficient to
guarantee the genuineness of the
claim such as contemporaneous or
consequential physical harm, which is
thought to provide an index of
reliability otherwise absent in a claim
for psychological trauma with only
psychological consequences.
Marzolf v. Stone- Ps son was driving a
motorcycle when he was hit by a bus. His
father happened on the scene
before emergency responders and saw his
son before he died he sued the bus
company for negligent infliction of
emotional distress. Here it is hard to
distinguish between the bright line rule.
ROL- the emotional trauma caused by
seeing a loved one injured at an
accident scene stems not merely from
witnessing the transition from health
to injury but also from witnessing the
aftermath of an accident. This is
extending it. Temporal
Proximityextended rule to include
arrival at the accident 10 min. after
while son still alive
Barnhill v. Davis- liability The plaintiffs
mother was trailing him in a car when he
saw her car get hit by another driver.
Although she suffered minor injuries and
was declared weeks later to she was found
to have no physical injuries. The plaintiff
sued the driver for negligent infliction of
emotional distress for the time he spent
worrying about his mother. He claimed
that that the distress caused him dizziness,
difficulty sleeping, and pain in his back and
leg. ROL- it is reasonably foreseeable
that a son who witnessed serious injury
to his mother may suffer mental
distress.
Mother was not seriously injured, but son
was closely related to injured party.
and unpredictable scope of liability.
Dissent argument that the court is being
too formalistic. The abduction of the baby
is serious and by relying on the fact that
there was no direct duty, the court
excludes a serious case of injury.
Gain v. Carrol- no liability. The plaintiff
saw his sons squad car on the evening
news thus alerting him that his son had
been killed; he sued the other driver and
other parties for negligent infliction of
emotional distress. Mental suffering by a
relative who is not present at the scene
of the event is unforeseeable as a
matter of law. Public Policy To allow
recovery only to those who were present at
the time of the injury causing event creates
an unarbitrary distinction. Spatial
Proxmitythe court refused to extend (i.e.,
limited) liability to parent viewing son on
TV at the time of the accident. (i.e. must
be present at the scene) Here the scope of
liability would be unpredictable.
Barnes v. Geiger- NL the plaintiffs wife
witnessed a pedestrian get struck by a care
in the exact spot where her son was
playing. She ran over only to realize it
wasnt him. However she died the next day
of a cerebral vascular hemorrhage. Her
husband sued saying the elevation of her
blood pressure caused her death ROL- a
fleeting instance of fear or excitement
does not present a set of
circumstances against which a
tortfeasor can fairly be asked to
defend. Public Policy: want to limit
liability bc we want the optimal level of
care; Pandora Box due to
unpredictable scope of liability.
Different from Barnhill bc the injured
party was not closely related to the
injured party.
Johnson v. Douglas: Plaintiffs were
walking dog when D came speeding down
the road and crushed the dog. The law is
clear that pet owners cannot recover
for emotional distress based upon an
alleged negligent or malicious
 destruction of a dog which is deemed
to be person property. Public Policy The
extension of such thinking would permit
recovery for mental stress caused by the
malicious or negligent destruction of other
personal property.
Direct Injury Theory
Robb v. Penn R.R. Company ->
Factually distinguishable. Unlike
Robb, there is no evidence of
physical injuries here
Perry-Rogers -> Legally
distinguishable bc there is no duty
here

Indirect Injury Theory

Jamaica Hospital
-harm to property not persons
-emotional distress without physical
consequence

Cause in Fact (requires demonstrating that the injuries would not have occurred if the D
had used due care)
Traditional Approach vs. Lost Chance Approach
Traditional Approach
i. Untaken precaution must be more likely than not the cause of the defendants injury.
ii. The damages are all or nothing
Lost Chance approach
i. The untaken precaution must have been the cause of the lost chance.
ii. The damages are compensation for percentage reduction in chance.
But - For Causation
1) cause-in-fact show this chain of events of the untaken precaution and the injury
2) the proximate cause is sometimes called the legal cause because it has to do with the
scope of liability

Liability
Gardner v. National Bulk Carriers -
Liability The plaintiffs decedent was a
seaman aboard the Ds ship. The man was
found to be missing from the ship;
however, the ship continued on its course
and did not attempt a rescue. The trial
court found that the man had fallen
overboard and the captain had no way of
knowing at one point he had fallen or
where thus a search would have been
fruitless. However the decision was
reversed and held the captain liable
because he would have only lost a half day
of working in exchange for possible saving
No Liability
New York Central R.R. v. Grimstad
(traditional approach) No liability. The
plaintiffs husband fell off the barge and she
ran to get a rope to throw and rescue him
however by the time she had found the
rope he was gone. She sued saying that the
barge should have provided life saving
equipment that was readily available. The
trial court found for the plaintiff the
Appellate court reversed.
Traditional Standard is more likely
than not.
They said the proximate cause of his death
was falling into the water and there is no
a mans life. When turning back would
pose no risk other than a loss of time,
and the captain refuses to do so then
the inaction of the master establishes a
neglect of the duty of rescue a neglect
from which a contributing cause of the
seamans death is fairly and
conclusively drawn by law.
Untaken Precaution did just turn
back search for sailor
Other causes shark, cut in propeller,
suicide
Here they are applying the LOST
CHANCE approach and that they were
more likely than not to save the
individual. Here they are providing
incentives for ships to turn around.
Herskovits v. Group Health
Cooperative of Puget Sound Liability-
The P came to the hospital complaining of
chronic coughing and chest pains. The
doctor prescribed him cough medicine but
his health failed to improve. He later
consulted another doctor who diagnosed
him with lung cancer. He later died and his
wife brought an action against the D for
being negligent in failing to make an early
diagnosis of the cancer. Dr. Ostrow testified
that the Ds negligence probably reduced
the mans chance of surviving for five years
from 39 percent to 25 percent. The D
moved for summary judgment on the
ground that the P probably would have died
from lung cancer even if the D had made an
early diagnosis.
Issue: Is a 36% (14/39) from 39 to 25
reduction in the decedents chance for
survival sufficient evidence of causation to
allow the jury to consider the possibility
that the physicians failure to timely
diagnose the illness was the proximate
cause of his death?
Holding: Yes. Public Policy: (Majority
opinion) to decide otherwise would be a
blanket of release from liability for doctors
and hospitals any time there was less than
a 50 % chance of survival. (There would be
no incentive for medical community to use
reasonable standard of care when ppl are
seriously ill)
proof that had some lifesaving device been
available that it would have saved his life.
No buoy < 51% and the victim couldnt
swim. The husbands drowning wasnt
caused more than 50 % of them not having
a buoy. It was not more likely than not that
the lack of buoy caused the drowning.
Here there were many possible causes of
death.
Dillon v. Twin State Gas & Electric Co. A
fourteen year old boy was sitting on a
bridge which the D maintained electric
wires over. He leaned over the side and as
he lost his balance grabbed one of the wires
and died from electrocution.
Reasoning: The extent of the liability
depends on whether the jury found that the
boy would have died or been maimed from
the fall if they wire had not been present.
The only liability was exposing the boy to
the exposed wires. They had no duty to
keep him from falling. The loss chance
approach doesnt apply bc we already know
that the cause in fact of the boys death
was him falling bc he would have fell and
died anyway regardless of the presence of
the wire.
The court said his probably future but for
the current thus bears on liability as well as
damages. Know the cause of harmfalling
off; they just happened to be there; no real
negligence or duty to prevent him from
falling anyways
Daugert v. Pappas the P brought a legal
malpractice action against his lawyer for
failing to file a timely petition for review of
a court of appeals decision. At trial, both
parties presented expert testimony on the
likelihood that the state supreme court
would have reviewed and reversed the
decision in the case if the petition had been
timely filed.
Reasoning: Despite the Herskovits
opinion and the questioning by
commentators of the use of the but for test
in legal malpractice claims we believe it
inappropriate at this time to change the
test. The primary thrust of Herskovits was
that a doctors misdiagnosis of cancer
Concurrence: Loss Chance Approach
allows recovery for loss of the chance
of cure even though the chance was
not better than even. (This is the more
rational approach) Traditional approach all
or nothing/more likely than not -> is
arbitrary. This subverts deterrence. It
undermines the public policy behind
negligence loss. It puts the Courts under
pressure to manipulate and distort other
rules affecting causation and damages in an
attempt to mitigate perceived injustices.
Gives certain Ds the benefit of an
uncertainty which, were it not for their
tortious conduct would not exist. (damages
are all or nothing in this approach which
may be inequitable in certain situations)
Wendland v. Sparks: liability - A woman
with chronic cancer who was in remission
went into the hospital to recover from
weakness. She went into cardiac arrest
and was in need of resuscitation and the
doctor failed to do so as an act of mercy he
said because she would have had such a
poor quality of life. The husband sued the
doctor. The court applied the lost chance
theory. A victim who suffers from a
preexisting adverse condition (in this
case the patients cancer and other
diseases) and is then subjected to
another source of injury (here the
failure to resuscitate) may have a claim
for the second event. The rationale is that
if it were not for the second event the
victim might have survived the first.
Public Policy: Dont wont give up ppls
choices to live or die; ruling otherwise
would make the doctor the decider of who
lives and dies.
Theres a certain fairness element under
the loss chance with respect to the plaintiff
bc they are compensated for their loss
chances, and for the defendant bc the pre-
existing illness is discounted against the
amount of damages.
Alternative Liability (When P cannot show cause in fact)
Rest. 433A Illustration 3: - Apportionment of Harm To Causes: 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
either deprives a decedent of a chance of
surviving a potentially fatal condition or
reduces that chance. A reduction in ones
opportunity to recover (loss of chance) is a
very real injury which requires
compensation. On the other hand, where
the issue is whether the Supreme Court
would have accepted review and rendered
a decision more favorable to the client,
there is no lost chance. The client in a legal
malpractice case can eventually have the
case reviewed. For example, in the instant
case the clients underlying claim was not
reviewed by the court initially because of
the attorneys negligence. However, in the
subsequent malpractice action the trial
judge should have decided whether the
Supreme Court would have accepted
review and held in favor of the client. If the
trial judge found review would have been
denied, the client could have sought review
in the court of appeals and ultimately in
the supreme court. Hence, the client would
eventually regain the opportunity to have
the claim reviewed by the Supreme Court.
On the other hand in the medical context,
when a patient dies all chances of survival
are lost. Furthermore, unlike the medical
malpractice claim wherein a doctors
misdiagnosis of cancer causes a separate
and distinguishable harm i.e. diminished
chance of survival, in a legal malpractice
case there is no separate harm. Rather the
attorney will be liable for all the clients
damages if review would have been
granted and a more favorable decision
rendered and none if review would have
been denied. Holding: Thus clearly the
loss of chance analysis articulated in
Herskovits is inapplicable in a legal
malpractice case
owned by A and two by B and that all 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 is
liable for the death of four. (Both Ds were negligent bc all of the dogs caused harm)
Rest. 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
damages by a large dent in one corner. The nature of the dent indicates that 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. (Only one negligent party was involved)
Illustration 11: While As automobile 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 upon As car. In one collision or the other, A sustains
an injury to his neck and shoulder. In As action against B and C each defendant has the
burden of proving that his conduct did not cause the injury. (Both negligent and both caused
harm)

Liability
Summers v. Tice The P and the two Ds
were quail hunting. The three stood in a
triangle. A bird flew between the P and the
Ds, and both Ds shot at it. The P was shot
in the face and sued both Ds for negligence.
Trial court found that the Ds had been
negligent in firing in the Ps direction. The
Ds appealed on the ground that the P failed
to prove which of them fired the shot that
hit him.
1) Ps Burden: other elements
2) Ds Burden: Evidentiary Argument->
The Ds have more evidence as to what
happened that the P doesnt and it would
be unfair to place the burden of proof to the
P; similar to Ybarra v. Spangard.
Reasoning: The Ds brought about a
situation where the negligence of one of
them injured the P, hence it should rest with
them each to absolve himself if he can. The
injured party has been placed by Ds in the
unfair position of pointing to which D
caused the harm. Ordinarily Ds are in a far
better position to offer evidence to
determine which one caused the injury.
Holding: For reasons of policy, the case is
based upon the legal proposition that,
under the circumstances here presented,
each D is liable for the whole damage
whether they are deemed to be acting in
concert or independently.
Kingston v. Chicago liability- The Ps
lumber yard was destroyed by two fires;
one from the northeast and the other from
No Liability
Litzman v. Humboldt County The 9 year
old plaintiff lit what he thought was a flare,
but was actually an aerial bomb, at the fair
and the bomb exploded on his hand. These
bombs had been brought onto the fair
grounds by the two Ds Golden State
Fireworks and Monte Brooks. The trial court
instructed the jury that if they were unable
from the evidence to determine which of
the two Ds was responsible for leaving the
aerial bomb on the ground, they should
exonerate both. The jury brought a verdict
for the Ds. The P appealed claiming that
the trial court should have instructed the
jury that it could find in his favor on the
negligence issue under the doctrine of res
ipsa loquitor in Ybarra, and that it could find
in its favor of causation under the doctrine
of alternative liability under Summers v.
Tice. See slide
Argument for no liability: This case is
distinguishable from Summers bc only one
D is blatantly negligent here.
Argument for liability: Extending Summers
bc theres one cause and neither of the Ds
were possibly negligent.
Sanderson v. International flavors and
fragrances.- No liability. The plaintiff
claimed that she suffered brain damages
and loss of smell due to exposure to one of
seven different fragrances. Was unable to
identify which of the seven fragrances
caused her injury. Tried to use the market
share theory
the northwest; the fires united. The fire
from the northeast was caused by the D. It
is unclear what caused the other fire.
Holding: Granting that the union of the fire
caused by the D with another of natural
origin, or with another of much greater
proportions, is available as a defense the
burden is on the D to show that, by reason
of such union with a fire of such character,
the fire set by him was not the proximate
cause of the damage. (Theres no liability if
2nd fire was natural or substantially larger)
Similar to R. 433B Illustration 11 bc both
fires caused harm. (Slighly extends
Summers v. Tice bc the second fire is of an
unknown origin and D doesnt have better
access to information of what caused it yet
the burden still shifts to the D)
Sindell v. Abott Laboratories Issue:
Liability Can a P that was injured as the
result of a drug administered to her mother
during pregnancy who knows the type of
drug involved but cannot identify the
manufacturer hold liable for her injuries a
maker of a drug produced from an identical
formula Facts: The plaintiffs mother took a
drug designed to prevent miscarriages.
However, it caused her daughter to have
cancerous growths and undergo expensive
painful tests. The daughter cant identify
which manufacture made the drug but says
summers says the burden shifts to them to
prove they didnt do it. They urge that
summers did that only when the defendants
were in a better position to discover who
did it they urge that in this case it would be
almost impossible to determine who did it.
Holding: The court said that using a
market share theory they would be able to
determine who most likely did it and they
should have to pay. When a defendant is
in a position to ascertain which
defendant harmed the plaintiff (in this
case by looking at the market share
then they can be held liable and cross
claim against one another to sort out
the proper defendant. The dissent says
that this limits potential defendants to
those only in the courts jurisdiction and to
deep pockets which is wrong.
Holding: plaintiff cannot shift the
causation burden to defendants
because P was not injured by a
fungible product (not all perfumes
have the same ingredients; there are
some unique characteristics) made by
many different manufacturers and
because P has in any event not joined
a substantial share of the market for
the products she alleges injured her.
Thus if attempting to bring a claim you
must have been injured by a product
produced by many manufacturers and
you must join a substantial share of
the market (In Slidell, there was 90%
of the market share and this was
substantial enough) LIMITS Slindell
Smith v. Cutter Biological - Liability - P
contracted HIV from contaminated blood
supplied to him at an army hospital. Didn't
know which of the 4 companies who
supplied it to the hospital was responsible
so he sued all four, claiming market share
liability. Court found that blood was
fungible (hope that you get the same
thing). Sued on idea of market share
liability. There were 4 manufacturers. In
Sindell, we knew all the DES drugs had the
same potential of causing cancer; So here,
some of the providers were more culpable
than others. Some of the blood had HIV
and some did not. This is an extension of
SLINDELL because one of the Ds
responsible may be meeting its duty of care
bc of the possibility it did not and still be
held liable.
Vioxx Cases p. 344 (see slides) - The
novel feature of the settlement was that
while the offer was made to each Vioxx
plaintiff individually, the offer was only valid
if accepted by all the clients represented by
any particular attorney or law firm. In order
to provide closure, however, . . the offer
required any participating lawyer to certify
that all his or her clients had agreed to the
terms. In broad
outlines, the offer provided closure with
each firm independently (subject to an
overall 85 percent acceptance rate to be
Modaks comments: (1) Here all the Ds effective) or it would not become effective.
were negligent; the ds had superior Individual claimants remained free to reject
knowledge was a weaker argument. the proposed deal but, assuming court
(2) Likelihood In Summer there was a approval and barring exigent
50/50 whereas here it was 1/200. circumstances, would have to find other
When you impose a market share counsel too.
there was 5/200(that 5 supplied 90%
of the market) So this is a stronger
argument when considered. (3)
fairness argument on shifting the
burden to the D: market share liability
is fair bc all the Ds were negligent in
continuing production of the medicine
after the FDA ordered them to stop so
it seems more fair to make them prove
that they didnt do it bc they all were
harming somebody. (4) Incentive to
give more care when issuing drugs
when you are producing drugs that
have a likelihood of causing harm.
This extends SUMMERS but has a
slightly different justification for
shifting the burden and we also arent
certain that one of the Ds is actually
responsible but it likely that one is bc
there is a 90% chance.
Dissent: criticizes the market share liability
by arguing that it treats Ps who cannot
identify which D injured them better than Ps
in regularly tort liability cases; and theres
an issue of deep pocket theory which holds
Ds that are wealthy to liability on the theory
that they are better able to handle the
liability.

Proximate Causation
Remoteness and Foreseeability
Rest. 3d. of Torts Section 29: (majority view) Limitations on liability for tortuous
conduct. An actors liability is limited to those physical harms that result from the risks that
made the actors conduct tortuous. (also think about this is 519 in strict liability)
Comment J states that connection with reasonable foreseeability as a limit on liability. Many
jurisdictions employ a foreseeability test for proximate case, and in negligence actions such
rule is essentially 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 actors tortuous conduct that they were not
among the risks (potential harms) that made the actor negligent, Negligence limits the
requirement of reasonable care tot hose risks that are foreseeable. Thus, when scope of
liability arises in a negligence case, the risks that make 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.
Rest. 2d of torts 435 (minority view) Foreseeability of harm or manner of its
occurrence: (Modified direct consequences principle)
1) if the actors conduct is a substantial factor in bringing about harm to another, the fact
that the actor neither foresaw nor should have foreseen the extent of the harm or the
manner in which it occurred does not prevent him from being liable.
2) the actors conduct may be held not to be a legal cause of harm to another where after
the event and looking back from the harm to the actors negligent conduct, it appears to the
court highly extraordinary that it should have brought about the harm
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.
460. SUBSEQUENT ACCIDENTS DUE TO IMPAIRED PHYSICAL CONDITION CAUSED BY
NEGLIGENCE
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.
Liability No Liability
In Re Polemis Bankes (majority) There Wagon Mound #1 No liability: Ds were
were flammable vapors in the ships hold. owners of the wagon mound and there was
The Ds agent spread planks over the oil being pumped into the ship that spilled
opening of the hatch on the ship, using into the sea. The Ds made no effort to
them as a platform to lower the cargo. One disperse the oil bc they did not believe it
of the ropes used to operate the winch would catch on fire. Two days later, the oil
came into contact with one of the planks caught fire after and damaged the Ps
and caused the plank to fall into the hold; wharfs and two boats docked alongside it.
an explosion and fire immediately followed Reasoning: For if some limitation must be
and the ship was destroyed. Ds argue that imposed upon the consequences for which
the damage harm caused by the ship falling the negligent actor is to be held
was not foreseeable. responsible- and all are agreed that some
Reasoning: The act of the board falling limitation there must be -why should that
caused a spark and that ignited gas and test (reasonable forseeability) be rejected
that was a negligent act and as such he is which since he is judged by what the
liable for any and all damages that ensue reasonable man ought to foresee,
as the result of his negligent act regardless corresponds with the common conscience
of whether or not the damages were of mankind and a test (the direct
foreseeable. In the present case the consequence) be substituted which leads to
arbitrators have found as a fact that nowhere but the never ending and insoluble
the falling of the plank was due to the problems of causation. But if it would be
negligence of the defendants servants wrong that a man should be held liable for
the fire appears to me to have been damage unpredictable by a reasonable man
directly caused by the falling of the because it was direct or natural equally it
plank. (direct consequence/minority would be wrong that he should escape
rule)Under these circumstances I consider liability, however indirect the damage if he
that it is immaterial that the causing of the foresaw of could reasonable foresees the
spark by the falling of the plank could not intervening events which led to its being
have been reasonably anticipated. done
Holding: Given the breach of duty which Rule: thus foreseeability becomes the
constitutes the negligence, and given the effective test. A man must be
damage as a direct result of that considered to be responsible for the
negligence, the anticipations of the person
whose negligent act has produced the
damage appear to me to be irrelevant. I
consider that the damages claimed are not
too remote.
Scrutton (concurring) ROL- To determine
whether an act is negligent it is
relevant to determine whether any
reasonable person would foresee that
the act would cause damage if he
would not the act is not negligent. But
if the act would or might probably
cause 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 caused sufficiently
directly by the negligent act and not
by the operation of independent
causes having no connection with the
negligent act except that the would
not avoid its results. (allows for
intervening cause argument)
Modak comments: This is not the way
most courts deal with this now and is
the MINORITY RULE. Because you
could have anticipated some harm,
even if you didnt anticipate the harm,
you can still be responsible.
Courts moved away from the direct
consequences rule.
Wagon Mound 2: Liability. The owner of
one of the boats that was destroyed sued
the D
Rule: If it is clear that the reasonable
man would have realized or foreseen
and prevented the
risk then it must follow that the
appellants are liable in damages. (the
Ps lawyer framed the issue here to focus
more on foreseeability bc the P did not have
the problem of contributory negligence as
the Ps in the first case)
Petition of Kinsman Transit (Liability)
Because a boat wasnt properly secured it
broke loose when ice piled up against and
collided with another ship which broke loose
and collided with the drawbridge, causing
the bridge to collapse and flooded the river.
probable consequences of his act. To
demand more of him is too harsh a
rule, to demand less is to ignore that
civilized order requires the observance
of a minimum standard of behavior.
Holding: The court said that the Ps action
should be dismissed.
Doughty v. Turner (No Liability) A worker
accidentally knocked a metal cover into
molten cyanide which caused an
unexpected explosion, which caused
injuries to the P.
The type of harm you would expect from
this is the splashing of cyanide. It was
argued that it was the same type of harm
but the extent was greater because it was
an actual explosion by the D. However, the
court did not accept this and they said the
type of harm was completely different.
Rule: He must take reasonable care to
avoid acts or omissions which he can
reasonably foresee would be likely to
injure his neighbor; but he need do no
more than this. If the act which he
does is not one which he could, if he
thought about it, reasonably foresee
would injure his neighbor, it matters
not whether he does it intentionally or
inadvertently. In this case the immersion
of the cover was not an act which they were
under any duty to take any care to avoid.
Here the kind of harm you could foresee
was not an explosion. Unlike Petition of
Kinsman Transit, thus is not foreseeable.
You can foresee the lid splashing but the
explosion was not foreseeable.
Diponzio v. Riordan: No liability. P was
filling up his car with gas when an
unoccupied car rolled into him and broke
his leg.
The driver of the car that rolled had not
heeded the store policy to turn off the
engine while fueling and it rolled while he
was away. Because this type of accident
was not among the hazards that are
naturally associated with leaving a car
engine running during the operation of
a gas pump, the alleged misconduct of
defendants employees does not give
The untaken precaution was the deadman
post had been improperly constructed and
was negligently maintained.
Rule/holding: Where the damages
resulted from 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. (For
the proximate cause, if there is a
foreseeable kind of harm then you dont
have to foresee the extent of harm)
Colonial Inn v. Gay (liability) The
Defendant backed into the Ps hotel on
accident and thought he had done no
damage when in fact he has severed a gas
line running through the heater. The gas
ignited and the explosion caused extensive
damage, It was the type of damage that
could have been foreseen as the result of
backing into a building (caused a gas line
to leak and ignite and explode). 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. A negligence defendant must
take the plaintiff as he finds him, even
if the plaintiffs eggshell skull results
in his suffering an injury that
ordinarily would not be reasonably
foreseeable. Here the untaken
precaution was hitting the ac heater.
Here there was the same force and
same general type of harm. The extent
of harm was not necessarily eggshell P.
(more of direct consequences rule
here)
**United Novelty v. Daniels Liability
problem. The work was being performed in
a room eight by ten feet in area in which
there was a gas heater then lighted with an
open flame. The cleaning was with
gasoline. The unique circumstances that
the immediate activating cause of a
resultant explosion was the escape of a rat
rise to liability in tort. Here the
untaken precaution was not enforcing
the policy off the car while fueling.
Here this is not the same general type
of harm. Not turning the car off while
fueling is for prevent explosions, not to
keep cars from rolling.
Central of Georgia RY. V. Price No
liability Woman whose driver missed her
stop spent the night at a hotel and caught
on fire due to a defective lamp. The
negligence of the company in passing her
station was therefore not the natural and
proximate cause of her injury. There was
the interposition of a separate
independent agent, the negligence of
the proprietor of the hotel over whom
as we have shown the railway company
neither had nor exercised any control.
The injuries to the plaintiff were not
the natural and proximate
consequences of carrying her beyond
her station, but were unusual and
could not have been foreseen or
provided against by the highest
practicable care. Here the hotel was
an intervening cause and a separate
independent agency. The risk here of
the fire at the hotel is not the risk
created by their negligence.
from the machine and its disappointing
attempt to seek sanctuary beneath the
heater whereat it overexposed itself and
returned in haste and flames to its original
hideout. Even though such a facts it is not
a controlling fact and serves chiefly to
ratify the conclusion that the room was
permeated with gasoline vapors.
Negligence would be predicated of the
juxtaposition of the gasoline and the open
flame. Under similar circumstances the
particular detonating agency whether as
here an animate version of the classic
lighted squib, a bolt of lightning was
incidental except as illustrating the range
of foreseeability. Here the untaken
precaution was cleaning the machine
without flammable cleaners precaution.
This was the same force and here the
general type of harm was that the gasoline
was flammable. Even though you dont
foresee the same general type of events,
you can foresee the force of using gasoline
by an open flame.

**Steinhauser v. Hertz Liability. problem

Woman in car accident who had a
prescychotic personality that resulted in
her developing schizophrenia when the car
accident triggered it. If the negligence
precipitated the onset of a disease to
which she had a preexisting
susceptibility they could be liable.
Here there is some responsibility here
and they wanted the negligent driver to
be held responsible for those damages.
This is more a Direct consequence
rule.

Pridham v. Cash and Carry Liability. Guy

got hit by some tile because the worker
was negligent on his way to the hospital
the ambulance crashed and killed him. The
law provides that if the defendant is liable
to the plaintiff decedent in this case, he is
also liable for any additional bodily harm
resulting from injury reasonably requires
irrespective of whether such acts are done
in a proper or in a negligent manner. If
you find the defendant case and carry
building center is liable to the P the
 damages awarded to the P would include
all injuries suffered by the decedent
Pridham at Cash and carry; and if you also
find the injuries suffered in the ambulance
crash were as a result of the normal effort
of third persons in rendering aid which the
decedent Pridham required then the
defendant would be liable to the plaintiff
for those also. 457
Here you are increasing the probability of
the type harm here, which was rendering
aid.

Intervening Causes

448. Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actors
Negligence.

1) The act of a third person in committing an intentional tort or crime is a superseding cause
of harm to another resulting therefore, although the actors negligent conduct created a
situation which afforded an opportunity to the third person to commit such a tort or crime,
unless the actor at the time of his negligent conduct realized or should have realized the
likelihood that such a situation might be created, and that a third person might avail himself of
the opportunity to commit each such a tort or crime.
449. Tortuous or Criminal Acts The Probability of Which Makes Actors Conduct
Negligent.

1) If the likelihood that a third person may act in a particular manner is the hazard or one of
the hazards which makes the actor negligent, such an act whether innocent, negligent
intentionally tortuous, or criminal does not prevent the actor from being liable for harm caused
thereby.

Liability
Brauer v. N.Y. Central & H.R.R. Co. Ds
trains collided with the Ps wagon at a grade
crossing. The Ps horse was killed, wagon
was destroyed, and the wagons contents-
keg of cider, some empty barrels, and a
blanket- were stolen by unknown parties at
the scene of the accident. The driver of the
wagon was so stunned by the collision that
he went into a fit and was unable to protect
the property. The railroad detectives on the
train did nothing to protect the Ps property.
The P sued the D for the recovery of
damages for the stolen property.
Rule: The act of a third person
intervening and contributing a
condition necessary to the injurious
effect of the original negligence, will
not excuse the wrongdoer, if such act
ought to have been foreseen.
Reasoning: The negligence which caused
No Liability
Watson v. Kentucky & Indiana Bridge &
R.R. Ds railroad cars negligently was
derailed, causing its cargo of gasoline to
spill out into the streets of the city. The gas
was ignited by a match lit by a man named
Duerr. An explosion resulted which injured
the P. P sued the railway company. Duerr
claimed that he had used the match to light
a cigar and had started the explosion
inadvertently. But witnesses claim that
Duerr intentionally started the fire.
Holding: The railroads liability depends on
how Duerr came to start the fire and that
this was a question for the jury.
Reasoning: While the railway companys
negligence may have been the efficient
case of the presence of the gas in the
street, and it should have understood
enough of the consequences thereof to
have foreseen that an explosion was likely
the collision resulted immediately in such a
condition of the driver of the wagon that he
was no longer able to protect his
employers property; the natural and
probable result of his enforced
abandonment of it in the street of a large
city was its disappearance; and the
wrongdoer cannot escape making
reparation for the loss caused by depriving
the P of the protection which the presence
of the driver in his right senses would have
afforded A railroad company which found
it necessary to have its train guarded by
two detectives against thieves is surely
chargeable with knowledge that portable
property left without a guard was likely to
be stolen. (prescence of guards contributes
to foreseeability argument for liability).
Holding: The act of the thieves did not
intervene between Ds negligence and the
Ps loss; the two causes were to all practical
intent simultaneous and concurrent; it is
rather a case of joint tort than an
intervening cause
Village of Carterville v. Cook The
defendant city maintained a sidewalk that
at one point was 6 feet off the ground.
However, there were no rails. Another
pedestrian innocently and accidentally
jostled the plaintiff and caused him to fall.
He sued saying it was the defendants fault
because there were no rails. The court
agreed. Modak: Having a raised sidewalk
without a rail is creating a risk. The
negligent failure to provide railings was a
proximate cause of their damages. (Here it
was the same type of harm that could
occur because of the absence of railings;
Here the lack of railings increased the risk
of harm to pedestrians; Similar to Brauer
bc here it is foreseeable that ppl would fall)
Scott v. Shepherd Sheperd tossed a
lighted firecracker into a crowded market.
It landed next to a man named Willis, who
immediately flung it away to protect
himself; it then landed next to Ryal, who
also hurled it away. The firecracker finally
landed in the face of the P, where it
exploded and put out one of his eyes. The
to result from the inadvertent or negligent
lighting of the match by some person who
was ignorant of the presence of the gas or
of the effect of lighting or throwing a match
in it, it could not have foreseen or deemed
it probable that one would maliciously or
wantonly do such an act for the evil
purpose of producing the explosion.
449 this is more concerned with the
likelihood and probability, but the
court focuses on malicious intent.
Here we are not concerned about
arson, we are more concerned with the
general risk of explosion. The arson
was not as foreseeable as the actual
risk of explosion from spilling oil itself.
At some point we cut off liability when
promoting the amount of care to take.
Here arson is too much and too far to
promote the amount of care so liability
is cut off.
Alexander v. Town of New Castle The P
persuaded the town justice to appoint him
special constable so that he could arrest a
known gambler personally. As the P was
taking a gambler to jail, the gambler seized
him and threw him into a pit in the sidewalk
that the D town had left open. The P sued
the town of New Castle for negligently
failing to enclose a pit that had been dug
into one of its streets.
Holding: The criminal was clearly an
intervening as well as an independent
human agency in the infliction of the
injuries of which the P complained. (Here
the untaken precaution was that they did
not cover the pit. Here we are thinking
about pedestrians and the general public as
the class of persons; the P, special
constable, is not within the class. It was
more of a coincidence here)
The Roman Prince The P was in the cabin
of a barge when the barge was negligently
struck by the Ds steamship. The P noticed
that the barge had started to leak, but she
did not think that that it was sinking and
declined to board another barge. Half an
hour later the barge had sunk far enough
P sued Shepherd. that the water was coming on deck. The P
Issue: Whether the P stated a good claim then tried to escape and stumble injuring
against Shepherd for trespass, the form of her knee. She sued claiming that the D was
action used to complain of directly inflicted responsible for her injuries.
injuries, or whether the suit should have Holding: The court found for the defendant
been brought as an action for trespass on saying their original act of hitting her boat
the case, the form of action used to bring was not was caused her injury because she
claims for injuries inflicted indirectly. chose because of somewhat natural desire
Holding: The court found for the defendant to stay by the vessel to take the risk of
because the men who hit the firecracker sinking and consequently harmed her knee
away from them were not free agents but trying to flee from the boat, Her decision
were acting under a compulsive necessity was reflective whereas the people in Scott
for their own safety and self preservation. just reacted. Here she made a decision to
stay and put herself in harms way. When a
Thompson v. White - Liability The P, plaintiff makes a reflective decision that
who was injured when her car was struck puts them in harms way they can not
at the rear by the D driver, sued the driver recover. Here there was a passage of time
of the other car and the gas station Gulf. of when the boat was hit and the P chose
Her evidence was that Gulf had hired not to get off.
clowns to stand at the street and waive
signs, which distracted the D driver.
Holding: The court held that his
negligence if any was a concurring cause
and not an independent intervening cause
which would insulate the Gulf defendants
from liability. When an individual is not
a free agent they can not be an
intervening cause; in this case the D
driver was not a free agent because they
were acting under the influence of the
clowns/distracted. Here they should
foresee that there may be one or more car
that is distracted. Similar argument to
Scott because her the distraction of the
drivers by the clowns was a reflexive act
like throwing the firecracker away from
their body was a reflexive act. HERE
MAKE PUBLIC POLICY ARGUMENTS OF
INCENTIVES TO TAKE MORE CARE

Limitation of Duty: An Alternative Approach

Liability No Liability
Palsgraf v. Long Island R.R. Co. Guy is
getting on train with package and jumps on
the and almost falls. The guard on the car
reached and pulled him in and the guard
on the platform pushed him in. The
package dropped and fireworks contained
in the package exploded causing scales at
the end of the platform to fall and injure
the P who was on the other end of the
platform.
Cardozo (majority) - Wants to focus on
duty (the judge decides duty as a matter of
law). The affirmative act that the guard
took was to far remove to create a duty to
other persons on the other end of the
platform. The idea is if you dont know
where the scope of liability is, you dont
know how much care to take. The guards
could not foresee harm when the package
was completely sealed with no notification.
- Proximate cause (the jury decides as a
question of fact) Here the main advantage
here is that the court is trying to draw a
line. The orbit of danger = the orbit of
duty. Here the orbit of danger is helping
him on board they could have used more
care (the package and the passenger is the
care that Cardoza is concerned about not
the woman down the road). Here he does
concern himself with the unpredictable
scope of liability. Here the reason Cardoza
wants this to be a duty issue is bc he wants
to decide the case and get rid of it. Here
the harm to the property is foreseeable but
not the harm to the person. The P was not
within the orbit of danger. No duty owed to
the P was breached.
Andrews (dissent) Duty: Every one
owes to the world at large the duty of
refraining from those acts that may
unreasonably threaten the safety of
others. Not only is he wronged to the
person that harm might reasonably be
expected to result, but he also wrongs
those are in fact injured.
Proximate cause (jury decides as a
question of fact): Relates to idea of
common law and the wishes of the people.
The people should define what the scope of
negligence is. He took more precaution.
Look at foreseeability- too far removed or
to remote. Focuses on what is reasonable
(what is reasonable for the; Here there is a
duty to the world. Here a special
relationship argument would have likely
been a stronger argument.

Strict Liability
A. Liability for Animals
Restatement 3d. 24 Scope of Strict Liability
- Strict liability under 20-23 does not apply
(a) if the person suffers physical harm as a result of making contact with coming into
proximity to the defendants animal or
abnormality dangerous activity for the purpose of securing some benefit from that contact
or that proximity or
(b) if the defendant maintains ownership or possession of the animal or carries on the
abnormally dangerous activity in pursuance of
an obligation imposed by law.
Assumption of the Risk
Express Assumption of the RiskContractual Release
Implies Assumption of the Risk
Primary (complete defense) (similar to contributory negligence)
o No Duty or
o No breach of duty
Secondary (merged into Comparative Fault in many states)

Strict Liability: Public Policy (See slide)

Activities Dangerous even when carefully conducted (additional
precautions not available
Non-reciprocal Risks (George Fletcher)
Incentive to reduce amount of activity (Landes and Posner) rather than
increase the amount of care (negligence)

Liability
Behrens v. Bertram Mills Circus, Ltd.
Dog scared elephant at the circus, which
caused the elephant to run towards the dog
and knock down a booth that the Ps were
inside of. The Ps were injured.
Modaks issue: whether elephant, and
especially these elephants, should be
classified as ferae naturae (wild animal) or
mansuetae naturae (domesticated)?
Rule: A person who keeps an animal
with knowledge (scienter retinuit) of
its tendency to do harm is strictly
liable for damage that it does if it
escapes; he is under an absolute duty
to confine or control it so that it shall
not do injury to others. All ferae
naturae (wild animals) are conclusively
presumed to have such a tendency, so
that scienter need not in their case be
proved.
Holding: As a matter of law an elephant is
ferae naturae, and the judge took judicial
notice that it is common knowledge
(culturally based) that elephants are wild by
nature. Here there is no social utility for the
elephants in London. It does not matter
No Liability
Earl v. Van Alstine No liability. D kept
beehives by a public highway where the
plaintiff was driving his horses and the bees
attacked the horses and killed one of the
horses and injured the other.
Issue: Are the bees a ferocious animal or a
domestic animal? Bees have been studied
and contained and mastered by man for a
period of time. Thus they walk a fine line
between ferocious and domestic
however, because these had been in the
same place for 8 years or so and they had
never harmed anyone thus they should
not be liable. If an animal is useful and
domesticated and can be controlled or
managed there should be no liability.
Here the bees were close to the
borderline but ultimately they were
deemed more mansuetae naturae.
Modern bee like an ox and cow. The
idea of usefulness. Usefulness may be
another reason we reclassify things. A
possible scale with respect to
dangerousness and usefulness.
Banks v. Maxwell - no liability A guy
that the elephant had been tamed; she is to
be treated as if she were a wild elephant. It
follows that the Ds are liable for any injury
done while the elephant was out of control.
Candler v. Smith Lady went to the zoo
when she got back there was a baboon in
her car and it acted threatening toward her
and tore up all her currency she sued the
zoo and she won. Where it is alleged that a
monkey or baboon (being classed as ferae
naturae) had escaped from it splace of
confinement and come upon the plaintiffs
premises and there committed the injury
complained of this is sufficient to withstand
a demurrer even though it is not stated in
the petition how the escape was effected it
is not necessary to allege that the owner
was negligent in allowing the animal to be
at large for his is bound to keep it secure at
his peril. The baboon is not really useful. If
an owner is keeping an animal that is
classified as ferae naturae it is not
necessary to allege that the owner was
negligent in allowing the animal to be
at large because they are bound to
keep it secure. If an animal is wild, you
keep it at your own risk. Baboons are not
very useful. Here it is likely more dangerous
to have a baboon.
Smith v. Pelah If a dog bites someone and
the owner doesnt do anything about it then
he is liable for any subsequent biting that
may occur as a result of his failure to put
the dog down. If a species is held to be
tame that decision does not
necessarily relieve the owner of
liability for damage the animals cause.
Instead the focus of the inquiry
becomes the extent of the owners
knowledge that the animal had a
propensity for the sort of mischief it
created. If the owner had such
knowledge he is held liable for it and
the most common way for such
knowledge to be shown is by
demonstrating that the animal had
behaved the same way in the past.
Thus the one bite rule. After a dog has
bitten once the owner is aware that
walked into a pen with a bull and got gored
ROL- a person injured by a domestic
animal in order to recover damages
must show two essential facts the (1)
animal inflicting the injury must be
dangerous vicious mischievous or
ferocious or one termed in the law as
possessing a vicious propensity and 2)
the owner must have actual or
constructive knowledge of the vicious
propensity character and habits of the
animal. In this case the bull had never
exhibited aggressive behavior before so no
liability. (compare to Smith v. Pelah and
Vaughn) Here the bull is useful and
dangerous, but arguably less than wild
animals.
Vaughn v. Miller Bros. No Liability. A
monkey bit the plaintiff at the circus. She
said the D wasnt negligent but they should
be strictly liable. The court said no liability
because there is a strong public policy
argument in favor of allowing municipalities
to continue keeping zoos. All that should
be required of the keeper of such
animals is that he should take that
superior caution to prevent their doing
mischief which their propensities in
that direction justly demand of him.
Here precaution is taken and the
monkey was socially useful. There is a
social utility in zoos. The P was
contributory negligent.
Bostock-Ferari Amusements v.
Brocksmith No Liability. A man had
muzzled a bear and was walking with it
down the street. The P was walking his
horse and the bear became frightened at
the sight of the bear and injured the P.
Reasoning: When a person is injured by an
attack by an animal ferae naturae, the
negligence of the owner is presume,
because the dangerous propensity of such
an animal is known, and the law recognizes
that safety lies only in keeping it secure.
However, in this case the injury didnt result
from a vicious act by the bear or its owner
keeping it unsecured. When an owner
keeps an animal that is ferae naturae
they have exhibited that behavior and
is responsible if they do it again. Dogs
are useful and not usually dangerous.
The dog can be classified as wild after
the first bite. R.3d Posnerif you have
a dangerous dog and you think the
benefits of keeping the dog are
worthwhile, then you are going to be
strictly liable for the dog (so you
should bear the cost, not the person
that gets bitten)
Baker v. Snell Liability. D owned a hotel
and kept a dog that he knew to be vicious.
Usually the dog was kept locked up.
However, the worker let the dog lose
around the maids to see if it would bite
them. The dog bit the P. D is liable despite
the workers intervening act bc the owner of
an animal known to be savage is strictly
liable for any damage it causes.
Rule: It is a wrongful act for a person
to keep an animal which he knows to
be dangerous that is an authority that
the person so keeping it is liable for
the consequences of his wrongful act,
even though the immediate cause of
damage is the act of a third party.
Here the dog, unlike the bear in
Bostock, was not properly restrained.
secure and an accident occurs that
wasnt the result of an act of that
animal then they are not liable. Here
the bear was kept secure and was properly
restrained. Here the court is saying if you
have a horse that is easily spooked then
you need to take precaution.
Opelt v. Al G. Barnes No Liability. A kid
crossed over all the barriers between itself
and the leopard at the circus. The leopard
scratched him. D is not liable because the
kid willingly put themselves in harms way.
When a plaintiff places himself in
harms way of an animal that is ferae
naturae then the owner is not liable.
Here the P was negligent and there
was an assumption of the risk.
Gomes v. Byrne. Here the plaintiff was
salesman and entered into a lawn where he
knew a dog was present and barking. The
dog bit him and the P responded that it was
the hazard of the game.
The P voluntarily exposed himself to the
obvious hazard. Here the P assumed the
risk by seeing the barking dog and he could
have walked away. In Behrens, there was
no social utility for the elephants, versus
here dogs are socially useful for protection.
Also in Behrens, there was also no evidence
of assumption of the risk because they did
not leave the stall were they were placed.
Here there was an implied assumption
of the risk.

Abnormally Dangerous Activities

Restatement (second) of Torts (1965)
519 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
520. Abnormally Dangerous Activities (Modak Likes Better)
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; (negligence or strict
liability)
(d) extent to which the activity is not a matter of common usage;
(e) in appropriateness of the activity to the place where it is carried on, and by
(f) extent to which its value to the community is outweighed by its dangerous attributes
R. 3d (2005) 20. STRICT LIABILITY
(a) An actor who carries on an abnormally dangerous activity is subject to strict liability for
physical harm resulting from the activity.
(b) An activity is abnormally dangerous if: (Modak says 520 E & F arent as well included)
(1) the activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors, and
(2) the activity is not a matter of common usage (way of bringing in the other
factors).
Two purposes of Strict Liability
(1) discourage activity in question
(2) unreciprocal risk

Liability
Siegler v. Kuhlman - Liability - A truck
hauling gas had an accident and the gas
spilled a 17 year old girl drove over it and it
ignited causing her to die. Hauling
gasoline is an activity for which one
should be strictly liable because it is
very dangerous and risky and it
doesnt matter that there is no other
way of doing it or that it is not
unusual. Different from Indiana Harbor bc
here evidence for negligence was destroyed
by fire and the dangers of hauling gasoline
cannot be eliminated by the exercise of
reasonable care as the facts here state that
the truck driver performed all necessary
safety checks. Here there is a high risk
of destruction of evidence when the
gasoline explodes (the
couterargument to this though is that
here you could still use negligence,
but the res ipsa loquitur (Judson; 201)
could be used and a CA to that is that
gasoline can explode without
negligence on part of the driver). Here
they are worried about a pocket of
immunity. BC everything is destroyed
in the explosion, it may be hard to
prove negligence. Strict liability
(relocate activity or decrease it. (See
slide and print)
Klein v. Pyrodyne Corp. No liability- The
D was a general contractor hired to provide
aerial fireworks. During the display, a
No Liability
Indiana Harbor Belt Ry. Co. v. American
Cyanamid Co.
The D was the manufacturer of acrylonitrile;
it loaded 20,000 gallons of the chemical
into a railroad tank car that it had leased
from the North American Car Corporation.
A train of the Missouri Pacific Railroad
picked the car up and carried it to Blue
Island railroad yard of Indiana Harbor Belt
Railroad, the P. Employees noticed that the
flammable liquid was leaking from the car.
Concerned that there had been
contamination, authorities ordered the P to
take decontamination measures that cost
the P $981,022.75. The P argued that the D
was strictly liable bc the transportation of
the chemical through the metropolitan area
was abnormally dangerous.
Rule: R. 520; When a lack of care can
be shown in court, such accidents are
adequately deterred by the threat of
liability for negligence.
Holding: This case is not an apt case for
strict liability. Here the leak was caused by
a breach of the duty to properly inspect or
maintain the railroad car. The strict liability
argument is flawed because rerouting is not
possible due to the nature of railroad
transportation is that it goes through
metropolitan areas and it could possibly
increase the risk of accidents bc it would
make the route longer. Negligence is
sufficient bc proper inspect would reduce
the risk of this happening. Posner thinks the
mortar was knocked into a horizontal
position and a rocket inside discharged into
a crowd of people who were injured. They
sued.
Holding: The court held that the D was
strictly liable for damage caused by its
fireworks. The court says that no matter
how much care pyrotechnicians exercise,
they cannot entirely eliminate the high risk
inherent in setting off powerful explosives
such as fireworks near crowds. Its also not
really common that as it only takes place
roughly twice a year; changing the location
is not plausible bc fireworks have to be
nearby for the crowd to see; not socially
useful.
Sullivan v. Dunham Liability- Ds used
dynamites to remove trees from land. The
blast caused a section of the tree stump to
strike the Ps intestate, killing her.
Strict liability applies to use of
dynamite.
Holding: The trial court instructed the jury
that they P did not have to show negligence
on the Ds part in order to recover from
them. (Public policy: here there is an
alternative way of removing tress stumps;
no reasonable care in location because it
was close to highway; not much social
utility bc ppl dont tend to use dynamite to
remove tree stumps)
key factor of R. 520 is whether you can
eliminate the risk by the exercise of
reasonable care.
Miller v. Civil Constructors A stray bullet
from a shooting range hit a pedestrian. The
court found that this is not something to be
strictly liable for. Because it is not ultra
hazardous even if it is highly dangerous .
The doctrine of strict liability is reserved
for abnormally dangerous activities for
which no degree of care can truly provide
safety. Using firearms is common. If its in
an appropriate place and has some
social utility. 1. Reasonable care would
eliminate the risk 2. It was in an
appropriate place 3. It was common 4.
There was social utility A negligence
standard would work here bc risk can be
eliminated with the use of due care.
Madison v. East Jordan Irrigation Co.
No liability- The D was using explosives for
repairs. The resulting vibrations and noises
caused the Ps mother minks to kill their
kittens bc they were easily excitable at the
time on the farm located nearby.
Rule: He who fires explosives is not
liable for every occurrence following
which has a semblance of connection
to itthe results chargeable to the
nonnegligent user of explosives are
those things ordinarily resulting from
an explosion. R. 519 (Here mother minks
killing their kittens is not the type of harm
that tends to result from use of explosives)
(similar to Bostock-Ferari bc the there harm
did not result from the bear attacking the
horse, so it was not the type of harm one
would expect to result; anything could have
startled the horse and the minks). (here
blasting is located in a rural place and is
common type of activity to use blasting to
repair canals)

D. Respondeat Superior (vicarious or indirect liability)

Doctrine generally holds employers strictly liable for torts committed by their
employees in the course of their work. It is thus a prominent example of vicarious
liability: liability for one party based on the wrongs of another.

2nd R. of Agency Section 220. Definition of Servant

 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.
2) In determining whether one acting for another is a servant or an independent
contractor, the following matters of fact, among others, are considered:
a) The extent of control which, by the agreement, the master may exercise over the
details of the work;
b) Whether or not the one employed is engaged in a distinct occupation or business;
c) The kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the employer or by a specialist without
supervision;
d) The skill required in the particular occupation;
e) Whether the employer or the workman supplies the instrumentalities, tools, and
the place of work for the person doing the work;
f) The length of time for which the person is employed;
g) The method of payment, whether by the time or by the job;
h) Whether or not the work is a part of the regular business of the employer;
i) Whether or not the parties believe they are creating the relation of master and
servant; and
j) Whether the principal is or is not in business.

2nd R. of Agency Section 265. General Rule.

1) 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.
2) 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.

2nd R. of Torts Section 416. Work Dangerous in Absence of Special Precautions.

One who employs an independent contractor to do work which the employer should
recognize as likely to create during its progress a peculiar risk of physical harm to others
unless special precautions are taken, is subject to liability for physical harm caused to them
by the failure of the contractor to exercise reasonable care to take such precautions, even
though the employer has provided for such precautions in the contract or otherwise.

Liability
Ira S. Bushey & Sons v. United States
(drunken sailor open valves that caused
drydock to flood; parts of the drydock sank
and the ship partially did; the drydock
owner sought compensation. The D argued
that the seamans acts were not within the
scope of employment so they should not be
liable)
Rule: The employer should be held to
expect risks, to the public also, which
arise out of and in the course of his
employment of labor.
Analysis: Here it was foreseeable that
crew members crossing the drydock might
do damage, negligently or even
intentionally. Here the seaman had come
within the closed-off area where his ship
lay, to occupy a berth to which the
No Liability
Miller v. Reiman Wuerth Corp. The D
was the employer a man involved in a car
accident. The D gave the employee
permission to go to the bank to deposit a
check. On the way back, the employee was
involved in the car accident with Ps. They
sued the employer.
Reasoning: To accept contention that the
employer was responsible for the mans
conduct would also require acceptance of
the contentions that policies for employee
happiness by allowing vacations, no
Saturday work, or lunch hours, coupled with
directions to return to work immediately
afterwards would place the employees in
the scope of employment, without more,
while on these outings. A reasonable mind
cannot find such activities within the scope
Government insisted he have access, and
while his act is not readily explicable, at
least it was not shown to be due entirely to
facets of his personal life.
Konradi v. U.S. mailman was driving to
work when he collided with the car of
Konradi, causing Konradis death. His
estate sued the U.S.
Rule: The possibility of the employer
reducing the number of accidents by
caused by his employees by altering
the nature or extent of his operations
(altering activities) is to be considered
in deciding whether to impose strict
liability.
Holding: 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; it has made
them more likely (here it was evidence
that the postmaster required the postal
carriers to take the most direct route in
driving to and from work; nor was the
carrier to stop for personal business, or give
anyone a ride.)
of employment, without more.
Rule: An employer is not liable for
torts committed by an employee while
on frolic or detour of his own.
Holding: Man was not acting within the
scope of employment so the employer is
not liable.
Miami Herald Publishing Co. v. Kendall
Ds newsboy was making home deliveries of
newspapers when he ran over the P with his
motorcycle. The P sued Herald for damages.
D Herald argued that it could not be liable
for newsboy negligence bc he was an
independent contractor rather than an
employee as expressed in the Ds contract
with the newsboy.
Rule: If the one securing the services
controls the means by which the tasks
is accomplished, the one performing
the service is an employee, if not, he is
an independent contractor. The
doctrine of respondeat superior does
not apply to independent contractors.
(It was left entirely to the paperboy to
select the conveyance which he would use
to transport the papers from the point of
origin to the subscribers front porches.
Holding/Analysis: Every element is so
clearly present as to establish beyond
argument that the arrangement between
the appellant and the paperboy one of
independent contractorship. We have
definite opinion that newspaper boys as
they perform their work in this country
constitutes a distinct occupations, Sec.
220(2)(b), and that provisions in of the K
are harmonious with that idea. While
actually making deliveries he was acting
alone and as a specialist to the extent of
following his route, remembering
addresses, and properly accounting for
funds, Sec. 220(c) and (d). He furnished his
own vehicle, Sec. 220(e). The length of the
engagement was specified in the contract,
Sec. 220(2)(f). It is clear from the K that
the parties believed they were making the
paperboy an independent contractor, Sec.
220(2)(i).
Products Liability

R. 402a. Special Liability of Seller of Product for Physical Harm to User or

Consumer (manufacturing defects)
1) One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical
harm thereby caused to the ultimate user or consumer, or to his property, if
a) The seller is engaged in the business of selling such a product, and
b) It is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
2) The rule stated in Subsection (1) applies although
a) The seller has exercised all possible care in the preparation and sale of his
product, and
b) The user or consumer has not bought the product from or entered into any
contractual relation with the seller.
Comment i
Consumer Expectations Test: Comment i, which defines unreasonably
dangerous, forecloses liability against manufacturers unless a product is
dangerous to an extent beyond that which would be contemplated by the
ordinary consumer with knowledge common to the community

R. 1. Liability of Commercial Seller or Distributor for Harm Caused by

Defective Products.
One engaged in the business of selling or otherwise distributing products who sells
or distributes a defective product is subject to liability for harm to persons or
property caused by the defect.

R. 2 Categories of Product Defect.

A product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of inadequate
instructions or warnings. A product:
a) Contains a manufacturing defect when the product departs from its intended
design even though all possible care was exercised in the preparation and
marketing of the product;
b) Is defective in design when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the alternative design
renders the product not reasonably safe;
c) Is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced or
avoided by the provision of reasonable instructions or warnings by the seller
or other distributor, or a predecessor in the commercial chain of distribution,
and the omission of the instructions or warnings render the product not
reasonably safe.
Comment a. History. The liability established in this Section draws on both
warranty law and tort law. Historically, the focus of products liability law was on
manufacturing defects. A manufacturing defect is a physical departure from a
products intended design. See R. 2(a). Typically, manufacturing defects occur
in only a small percentage of units in a product line. Courts early began
 imposing liability without fault on product sellers for harm caused by such
defects, holding a seller liable for harm caused by manufacturing defects even
though all possible care had been exercised by the seller in the preparation and
distribution of the product. In doing so, courts relied on the concept of warranty,
in connection with which fault has never been a prerequisite of liability.

Public Policy
Consumer Expectations & Reliance seller impliedly represents the
product on the market is reasonably safe and healthy
Non-reciprocal Risks (manufacturer imposes non-reciprocal risks on
consumer and reaps economic gain fair to hold responsible)
Problems of Proof rather often difficult and costly for purchaser or
consumer to prove negligence (pocket of immunity)
Incentive for Manufacturers to make products as safe as possible
Best Cost Avoider - manufacturer in the best position to make products
safe

B. Manufacturing Defects
Liability
Welge v. Planters Lifesavers Co.
Liability- Peanut jar shattered when P
was putting top back on, and seriously
injured the Ps hand. The P sued the K-
Mart the seller, Planters the
manufacturer who filled the jar with the
peanuts and sealed it, and Brockway
the manufacturer of the glass jar itself.
Rule: A seller who is subject to
strict products liability is
responsible for the consequences
of selling a defective product even
if the defect was introduced
without any fault on his part by his
supplier or by his suppliers
supplier. (The plaintiff can recover
from any of these parties and they are
responsible for sorting liability out
among themselves since they are
contracting parties)
(similarity here to res ipsa loquitur
because it can be inferred that this kind
of accident would not have occurred
but for a defect in the product, and if it
is reasonably plain that the defect was
not introduced after the product was
sold, the accident is evidence that the
product was defective when sold)
No Liability
Dreisonstock v. Volkswagenwerk
The P was a passenger in a Volkswagen
microbus that crashed into a
telephone pole, causing her various
injuries. She brought a suit against
Volkswagen claiming that the bus was
negligently designed and thus not
crashworthy.
Rule: risk/analysis approach
Reasoning: Designed for special use of
transporting cargo; The usefulness of
the design is vouchsafed by the
popularity of the type. It was a special
utility as a van for transporting of light
cargo, as a family camper, as a station
wagon and fur use by passenger groups
too large for the average passenger car.
Holding: There was no evidence that
there was any practical way of
improving the crashability of the
vehicle that would have been
consistent with the peculiar purpose of
the car. The beneficial utility/purpose
of the car outweighs it unsafety.
McCarthy v. Olin Corp. A man
opened fire killing several people. He
used Black Talon bullets, a hollow point

Dawson v. Chrysler Corp. P brought
a defective productive suit against the
manufacturer because the car wrapped
around a pole that it struck in a car
accident, causing him to become
paralyzed. The P alleged that the car
was defective because it did not have a
full, continuous steel frame extending
through the door panels. The Ps claim
that had the vehicle been so designed,
it would have bounced off the pole
following relatively slight penetration by
the pole into the passenger space. The
D argued that the design of the car
complied with all federal vehicle safety
standards, and the alternative design
offered by the Ps would be less safe
than the existing design.
Rule: risk/utility analysis: Under
this approach, a product is defect if
a reasonable person would
conclude that the magnitude of the
scientifically perceivable danger as
it is proved to be at the time of
trial outweighed the benefits of the
way the product was so designed
and marketed. R. 2(b)
7 factors relevant to this balancing
test:
1) the usefulness and desireability of
the product, its utility to the user, and
to the public as a whole.
2) The safety aspects of the product,
the likelihood that it will cause injury,
and the probable seriousness of the
injury.
3) The availability of a substitute
product which would meet the same
need and not be as unsafe.
4) The manufacturers ability to
eliminate the unsafe character of the
product w/o impairing its usefulness or
making it too expensive to maintain its
utility.
5) The users ability to avoid danger by
bullet designed to bend upon impact
into razor sharp petals that increase
wounding power of bullet. Survivors of
the ppl who were killed sued Olin, the
manufacturer of the bullets, alleging
that the company should have been
held strictly liable for the bullets were
defectively designed.
Rule: A defectively designed
product is one which, at the time it
leaves the sellers hands, is in a
condition not reasonably
contemplated by the ultimate
consumer. (Consumer Expetations
Test R. 402A comment i) Here the
very purpose of the Black Talon bullet is
to kill or cause severe wounding and it
performed precisely as intended.
There must be something wrong
with a product before the
risk/utility analysis may be applied
in determining whether the
product is unreasonably dangerous
or defective. The purpose of the
risk/utility analysis is to determine
whether the risk of injury might
have been reduced or avoided if
the manufacturer had used a
feasible alternative design. Here
the primary function of the bullets was
to kill or cause injury. There is no
reason to search for an alternative safer
design where the products sole utility
is to kill and maim.
the exercise of care in the use of the
product.
7) The feasibility, on the part of the
manufacturer, of spreading the loss by
setting the price of the product or
carrying liability insurance.
Modaks comments: arguing that the
design complied with federal vehicle
standards is not effective
D. Failure to Warn
Liability
Brown v. McDonalds Corp. P
ingested a vegetarian sandwich from
McDonalds. She experienced an
allergic reaction after ingesting it
because the sandwich contained an
ingredient derived from seaweed and
she was allergic to see food. The P
sued the D claiming that the D should
have warned its patrons of this.
Liebeck v. McDonalds Corp
Evidence that McDonalds coffee is
hotter than other places which allowed
the court to conclude that the D should
have warned that the coffee was
unusually hotter than other places.
No Liability
Graves v. Church & Dwight The P
had heartburn, so he poured some
baking soda into a glass of water and
drank it. This caused a rupture in his
stomach. He sued the manufacturer of
the baking soda for failure to warn of
this possible consequence of ingesting
the product. There was evidence that
the P smoked cigarettes even though
he was aware that cigarettes bore a
warning label concerning the health
hazards. Graves argues that he is
entitled to a presumption that he would
have heeded a proper warning if it had
been provided.
Rule: Individuals are entitled to the
presumption that he/she would
have heeded proper warnings if
provided; however, the
presumption can be rebutted by
the D with sufficient evidence.
Holding: The court agreed that P was
entitled to presumption, but held that in
this case there was sufficient evidence
to rebut it. Here the analogy between
the Ps smoking in the face of health
warnings on cigarettes, and his
projected behavior if a warning had
been on the baking soda rebutted that
presumption.
McMahon v. Bunn-O-Matic Corp P
spilled hot coffee on herself causing 3rd
burns and sued the seller of the coffee
alleging that the seller should have
warned of the unusually hot
temperature of the coffee.
Lack of evidence