Torts Outline Garrison Brooklyn Law

TORTS GARRISON FALL 2016
I. THEORIES OF LIABILITY: TRESPASS TO NEGLIGENCE TO STRICT LIABILITY

A. Def’n of a tort: a civil wrong/wrongful act, whether intentional or accidental, from which
injury occurs to another.
B. Central issue--when is a D. liable for the physical harm he causes?
1. Traditional strict liability: prima facie liable; evidence sufficient enough to prove
intent.
2. Modern Negligence: Pl. can recover only if D. acted w/insufficient care.
3. Monetary damages in recompense for an injury
a) opposing views of when monetary damages are owed:
(1) Strict liability: you caused it you pay for it
(2) Fault driven: is it fair that you should pay for harm when most people
wouldn’t say you are at fault?
4. Causation--sufficient link b/w D.’s conduct and harm Pl. suffered-->b/p on Pl.
C. Strict Liability: D. bears Pl’s loss
1. Trespass: Harm caused by D.; direct/indirect application of force against Pl. (or
property)
a) Trespass on the case: “indirect” harms not involving use of force
2. Thorns Case: basis for liability in a tort.
a) Cause of action--trespass; demurrer--facts are correct, but insufficient to support
liability on a trespass theory. Pl. must prove D. entered land, destroyed crops and
market value of crops
b) Rule--if a man does some act, even if lawful, and by this act tort/damage done to
another against his will, and he could have prevented damage, he should be
punished for that act. Enough to say if action is lawful?
c) Necessity will justify trespass and interferences w/personal property...D. has
privilege to enter/retake thorns as long as original cutting not tortious
d) EXCEPTION--Acts of God; use of excessive force if D. tries in good faith to
minimize excess; “best efforts” defense/”utterly w/o fault”
2. Weaver v Ward: b/w strict liability and negligence
a) Cause of action: trespass (assault and battery); Pl. demurrer, summary judgment
b) Modern tort law-- “intentional torts”
c) “accidentally and against his own will”--trespass?
d) Rule--damages are awarded according to hurt or loss only, one is guilty of
trespass even if he is “utterly without fault”/ “everything in his power”
e) Could D. have avoided harm?
(1) Is “utterly without fault” (extraordinary care) the same as negligence
f) Causation
(1) Risk of insolvency--3rd party
(2) Contributory negligence, ex. Pl. ran in front of gun
3. Brown v. Kendall: Injury from direct act of another, trespass will lie “dog fighting
case”
a) Cause of action--trespass vi et armis
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b) Rule--Pl.’s B/P to established want of due care-->intention was unlawful (injury
unavoidable), D. in fault (not free from blame).
c) Fault standard: D.-->Act was necessary or not necessary=extraordinary care by
D. or lack of ordinary care by Pl. Ordinary care is a much lower standard.
4. Hammontree v Jenner (D. has epileptic seizure)
e) Rule--cannot invoke strict liability on users of streets and highways. Only
legislature can come up with plan for compensation for accident victims in place
of negligence.
f) Old trespass torts are outdated-->intentional torts actions now
D. Negligence: liability only when it spots shortfall in D.’s basic behavior
1. Dominant form of civil liability starting early 19th C.
2. Intentional failure to perform--safest way to secure care is to throw risk on person
who decides what precautions to take (Holmes)
3. *Fletcher v. Rylands (mine case)
a) Must be negligence to create liability; harder for D. to prove lack of
fault/extraordinary care
b) Rule--a person who brings on his lands and collects anything likely to do mischief
if it escapes, must keep at his own peril; if he does not he is prima facie liable for
all damage which is natural consequence of its escape (foreseeability)
c) “natural vs. non-natural”--Acts of God
II. COMPENSATION FOR INJURIES

A. Two types of compensatory damages:
1. General/nonpecuniary (pain/suffering, emotional distress/harm, loss of enjoyment of
life, physical impairment)
2. Special/pecuniary (Medical expenses, lost wages, services provided that Pl. will now
have to contract for help, rehab to return to work)
B. Damages award will include harm suffered up until time of trial & future harm suffered
C. Punitive damages=punishment! Extreme fault, no compensatory purpose. Rare.
D. McDougald v Garber: standard for separating general categories
1. Rule--an award for loss of enjoyment of life to a person who is unaware of loss isn’t
compensatory. Some level of awareness required. Pain/suffering should be treated
with loss of enjoyment.
2. General damages not awarded separately--jury will come back with one # related to
facts of case.
3. Refusal to instruct jury on particular damages theory
E. Damage compensation vs. damage collection--some tort actions never brought; D.
doesn’t have $
F. O’Shea v Riverway Towing Co.: Damages accounting for inflation are acceptable.
1. $ figure of general & past/future of specific damages
a) past--damages to date
b) future-prediction; but $ in bank now different than in future and investments
c) discounted to present value--courts often permit juries to discount (expert
testimony)
2. Typical damages award accounts for inflation and investment probability!--either
party can appeal award.
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3. Award does not conform to evidence and is erroneous/abuse of discretion (judge
acting as jury)--must be evidence to support conclusions on damages
a) Duncan v Kansas City Southern Railway
(1) Rule--only after it is determined that trier of fact has abused its discretion is a
resort to prior award appropriate and only to determine highest/lowest point
which is reasonable.
(2) Strong negligence for railroad and driver--potential for large verdict. How
much money is out there?
(1) railroad/church--more resources than average person
(3) No consistency w/verdicts
(4) Shock the conscious standard: limited power to review jury awards in cases
unless clear “miscarriage of justice”. Most courts have sustained large
verdicts for gruesome injuries.
H. Majority of tort actions are settled--Pl. has a reasonably strong claim of liability and D.
can avoid much larger award + both parties avoid cost of litigation (appeal)
1. Contingency fee enabled Pl. to go forward without $--% depends on size of ultimate
verdict (25-30% common for at least the first level of litigation).
I. Structured settlement:
1. Like getting pension benefits that are paid out over time
2. Advantages to both parties--D. (less money up front); Pl (certainty over time; lump
sum requires investing)
a) reduces need for parties to make joint estimate of future inflation and lost
earnings/med expenses
b) Contingency fee paid upfront (depending on the deal)
J. No-Fault Systems/Worker’s Comp:
1. 20th C.--employers required to pay into system to cover injuries. Doesn’t rely on
showing employer liable for creating negligent workplace; just show injury occurred
on job.
2. Worker’s comp. statute--scheduled benefits for loss of an extremity. Degree to which
injury impairs worker’s earning capacity.
a) under common law there is no max limit on damages; allows for full recovery
b) statutory limits-strict limitations on amount recoverable from employer (AWW)
3. Can be beneficial when hard to show, but when liability is obvious it can be pretty
shitty
4. Certainty and highly predictable.
III. NEGLIGENCE
A. 4 elements:
1. Duty--assumption. D. owes Pl. a duty to conform to a reasonable standard
2. Breach--D. conduct (act/omission) falls below applicable standard of care (negligent)
3. Causation--assumption. D. conduct/failure to meet standard of care casually
connected to Pl.’s harm (in fact or proximate)
4. Damages--Pl. suffered harm
B. Reasonable Person--Prudent Man Standard
1. Holmes, The Common Law
a) Before a jury, doesn’t matter that D. though his conduct was that of a prudent man.
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b) When men live in a society a certain avg. of conduct is necessary to general
welfare
(1) every man presumed to possess ordinary capacity to avoid harm to his
neighbors
2. Vaughan v Menlove (burned down cottages with haystack)

a) Rule--One must enjoy his own property as not to injure that of another, and must
also have a regard to caution like a man of ordinary prudence would observe. D.
liable for consequences of his own neglect.
(1) D. wanted “best judgement” standard
b) Natural v. non-natural use of land
c) Gross negligence--relatively high level of fault
3. Exceptions!!--children (individualized standards)
a) Jury instructions- “age, intelligence and experience”. Evaluate conduct by
comparing it to standard of someone with same age/experience.
b) Low IQs--not immune according to Menlove; standard must rise. People faking
“stupidity”.
c) Children more often Pl.; no $ to be D.
(1) Roberts v Ring--Boy of 7 cannot be held to same standard of care. In
considering contributory negligence, standard degree of care exercised by
ordinary boy of his age and majority. May be different if he had caused the
injury (take advantage of age/infirmities)
(2) Certain cases--children subject to standard of an adult while engaging in adult
activities
(a) Daniels v Evans (motorcycle fatality)
i) Rule--When a minor engages in such activities as the operation of an
automobile or similar power driven device, forfeits his rights to have
the reasonableness of his conduct measure by a standard
commensurate w/his age and is thenceforth held to the same standard
as all other persons/in the light of adult standards.
ii) Unfair to public--one can’t know whether operator is a minor/adult
and can’t protect himself against youthful imprudence even if
warned. Lenient standard to minors is unrealistic and contrary to
intent of legis. policy and public safety. Special regulations
(licensing).
(1) Threshold standard of care is any other licensed driver?!
(b) Trend in classifying dangerous activities as adult.
4. People who can’t conform to reasonable standard

a) Fletcher v City of Aberdeen (blind guy-ditch case)
(1) Rule-Blind may use the streets w/o being guilty f negligence if, in so doing,
they exercise that degree of care which an ordinarily prudent person similarly
afflicted would exercise under the same circumstances. Physical disability is
relevant to standard of care.
b) Objective/Subjective Test
(1) Subjective harder to judge, less fair to harmed individuals, etc.
(2) Objective test/reasonable person standards will vary under certain

circumstances--some states have fixed standards, i.e. children under a certain
ager can’t be negligent at all
c) Emergencies--someone has to take action very fast w/o capacity to think it through
d) Insanity/Mental Illness!
(1) Breunig v American Family Insurance (batman delusions case)
(a) Rule--effect of mental illness/hallucinations or disorder must be such as to
affect the person’s ability to understand/appreciate the duty of ordinary
care. There also must be an absence of notice/forewarning (forseeability)
to the person that he may be suddenly subject to such a type of insanity or
mental illness.
(b) Rarity is not a reason to overlook existence and basis of doctrine of
liability for negligence: it is unjust to hold a man responsible for his
conduct which he is incapable of avoiding and which incapability was
unknown to him prior to the accident.
(2) Many courts have found that mental impairment was not enough--false claims
of insanity, not fair to injured party, family/estate should restrain and control
mentally impaired (strict liability?)
(3) Insane don’t turn up frequently as D.--no $. Normally housing institutions
sued
C. Risk Calculus
1. Reasonable person standard as applied to organizations, not individuals.
a) Different feel than evaluating decisions of individual--lots of decisions and
employees
2. Commonsense=intuitive meaning of negligence as it applies to ordinary individuals
and corporate entities
3. Economic meaning=calculus of risk!
4. Blyth v Birmingham Water Works (charged by statute)
a) Rule--Negligence is the omission to do something which a reasonable man..would
do, or doing something which a prudent and reasonable man would not have done.
b) established by active Parliament; authority and activity dictated. Maintenance of
plugs; no profit for D; D.’s obligation
c) Appellate court reverse-protection/immunity of gov’t immunity
5. Eckert v Long Island RR (save a child from train tracks case)
a) Rule--A person engaged in ordinary affairs/mere protection of property,
knowingly and voluntarily places himself in a position where he is liable to receive
a serious injury is negligence, which will preclude recovery for such an injury; but
when the exposure is for the purpose of saving a life, it is not wrongful or
negligent unless such as to be regarded as rash/reckless.
b) Negligence implies commission/omission wrongful in itself. Not wrongful for Pl.
to make every effort in his power to rescue child with a reasonable regard for his
own safety. Did not have time to deliberate; required instant action to avoid
fatality to child.
c) Contributory negligence--b/p on Pl.
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(1) not negligent to act!--value of human life, emergency situation, reasonably
good shot of saving child, no possibility child could save himself (unaware
hazard, very young)
6. Terry, Negligence--for conduct to be negligent, risk must be unreasonably great (and

injury as consequence). Due care in taking reasonable precautions against harm.
a) Magnitude of risk
b) Principle object--value/importance of that exposed to risk
c) Collateral object--reason for conduct (money/time saved)
d) Utility--probability that collateral object will be attained/risk to principal
e) Necessity--probability that collateral object would have been attained w/o risk
7. Seavy, Negligence--Subjective/Objective
a) Balancing interests--D. not liable if Pl. and D.’s interests are considered to be of
equal value
b) Considerations=purpose of actor, nature of act, resulting harm from
action/inaction. Some not considered when actor desires/knows conduct will
interfere w/Pl. (property)
8. Hand formula--> B < P(L)=NEGLIGENCE/NO NEGLIGENCE
a) B=Burden, P=Probability of risk, L=Injury
b) burden (cost of prevention) of taking precautions against risk and probability risk
will ensue
c) “balancing approach” to negligence-->forseeable likelihood that conduct will
result in harm; forseeable severity of harm; burden of precautions to
reduce/eliminate risk of harm (Third Restatement)
d) all illusory! not exactly quantifiable. No cost-benefit analysis!
e) D. should be allowed to show that lower level of precaution would have generated
a higher net social return.
f) All individuals treated as risk-neutral; in practice sometimes ppl prefer risk,
sometimes adverse to it (prepared to pay to avoid confronting risk)
g) Comparative negligence: apportioning liability for a particular accident among
various parties who have been deemed negligent. “All or nothing” in Amer. tort
law, 1970s
h) US v Carroll Towing Co. (lost flour on a barge case)
(1) Rule= B < P(L)=N or NN
(a) L--damages (loss of AC and cargo, other barges, life/injuries)
(b) P-high; no one else is there, very busy port, gone during working hrs on a
work day, lengthy absence
(c) B--Burden of employee being where he was supposed to be=0 (absence
unexcused)
(2) Employee--negligent conduct attributed to his employer. High probability
that harm will ensue, lots of injury (damage), but not high burden=EASY
NEGLIGENCE CASE (100% burden). Not negligent?(0% burden).
Negligent/not negligent?(50% burden)
(3) very imprecise calculation; fact intensive
9. Jury will never get instructions in Hand’s formula; more like Third Restatement
10. What makes burden worth it/not worth it?
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a) Reputation, might as well do it before gov’t enforces it, didn’t anticipate ligation,
competition (prices low)
11. Jury to take in circumstances of why actor chose to act. Time to weight
benefits/risks?
a) Lyons v Midnight Sun Transportation Services--Sudden emergency doctrine
(1) Rule--If a person confronted with sudden/unexpected peril, not resulting from
that person’s own negligence, not expected to exercise same judgment and
prudence the law requires of a person in calmer and more deliberate moments.
Person confronted with imminent peril must, however, act as a reasonable
person under same conditions.
D. Custom
1. Insulated from liability b/c it is a custom?
2. Accept and rely on some level of implicit rationality in market behavior
3. Custom is relevant but not determinative--courts unwilling to allow either party to
settle on a showing of custom
a) Titus v Bradford, BKR--not really applied anymore
(1) Rule--Negligence test for employers is the same; no man is held by law to a
higher degree of skill than the fair average of his profession or trade...
4. Universal disregard for safety precautions does not allow actor off the hook
a) The TJ Hooper (radio tugboat case)
(1) Rule--use of radio shown to be so extensive as to amount almost to a universal
practice in the navigation of coastwise tugs along the coast, so there was
therefore a duty on the part of tug owner to supply effective receiving sets.
(2) Non-opportunity to become customary. However precaution/burden that was
highly cost effective. B < P(L). Very strong case in negligence for failure to
have one.
(3) Courts don’t want to give actors a reason not to adopt new technology as soon
as possible by insulating them from liability.
5. Highly fact driven/unclear--why would custom not be used?
a) Case doesn’t fit norm, performance better than custom, technological landscape
has shifted
b) Trimarco v Klein (p. 230, N.5)--shower built before tempered glass;
duty/obligation of landloard and how new customs might affect requirements
applicable to D.
(1) trying to convince jury that D. should be required to follow a custom that
wasn’t available at time hazard was created.
6. Internal custom--D. failed to conform to own rules/procedure
a) not a custom!! Custom is something large group of actors has adopted
b) Disincentive for D. to take precautions/appreciate risk
7. Medical Malpractice!--Doc. best example of a custom D.-->”two schools of thought”
doctrine
a) strict liability has died-->customary care standard: failed to exercise degree of
skill, care and learning possessed by other persons of same profession, resulting in
failure of Pl. suffering damages
(1) adverse outcomes do not establish liability alone--patients not insured against
them
b) Lama v Borras (back operation w/no antibiotics)

(1) Rule--When a physician negligently exposes a patient to risk-prone surgery,
physician is liable for harm associated with foreseeable risk.
(2) General rule of malpractice (even though PR): to establish a prima facie case
of medical malpractice, a Pl. must demonstrate:
(a) basic norms of knowledge and medical care applicable to general
practitioners/specialists (NATIONAL STANDARD)
i) Locality rule abandoned--standard possessed by others in profession
in the community. Modern controversy--overruled.
ii) but permissible to consider available resources (allowance for
community rationale)
iii) Specific area of practice and how long he has been
practicing=relevant factors
(b) proof that medical personnel failed to follow these basic norms in
treatment of patient
(c) casual relation b/w act or omission of physician and injury suffered by
patient
i) D.s=surgeon and hospital; common. Lawyers want to capture all
possible D. to avoid pointing fingers. Question of responsibility and
causation.
ii) Expert for causation! Lay persons don’t know custom
(1) earlier area=”conspiracy of silence”
iii) Preponderance of the evidence
(3) Foreseeability and hindsight (20/20)--hard to show that certain methods of care
would have worked in a particular case.
c) Benefits of custom-professional judgement-
(1) Get break other D. do not
(2) Specialty knowledge--can’t judge w/o expert testimony
(a) don’t want lay jurors second-guessing norms professionals have
established
d) Exceptions
(1) Helling v Carey--rejection of professional customary standard. Glaucoma
case.
8. Informed Consent/Disclosure Doctrine--attractive litigation tool

a) Canterbury v Spence: Disclosure-requirement of conduct prudent under the
circumstances
(1) Rule--Physician’s duty to warn of dangers lurking in the proposed treatment,
but only a reasonable explanation, and to impart info which the patient has
every right to expect. Thus the physician has born a duty on pain of liability
for unauthorized treatment, to make adequate disclosure to the patient so that
the patient has enough info to make an intelligent choice.
(a) Has to disclose material risks in proposed treatment.
(b) no duty to inform patient’s comprehension--method/manner of surgery
and risks associated
(2) Casual connection when disclosure of significant risk incidental to treatment
would have resulted in decision against it
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(3) What reasonable, prudent patient wants to know. Don’t need expert testimony.
Obvious!
(a) patient would have declined treatment had risk been exposed
(4) Not an easy theory on which to proceed--case resolved 20 years later. Serious
litigation hurdle.
(a) difficult to establish that Dr. failed to disclose
(b) Don’t want to risk lawsuits of informed consent
(c) No evidence that informed consent actually works and leads to Pl. to
decline hurdle
(5) Now focuses on other risks--physician required to disclose risks of not having
treatments
(a) Truman v Thomas (p.256)
i) obligation for physician to go beyond telling patient surgery is
necessary
ii) Many courts have not followed--more typical of Canterbury
(b) Also alternative treatments--risks like AIDS; physician not an expert in
surgery he is going to undertake
b) Now often the subject of statute--legislation sets standard (p.258). Request of

insurance companies and medical orgs (lobbyists)
(1) Custom!--what practitioner under similar circumstances would have disclosed
in a manner permitting patient to make a knowledgable evaluation
(2) right of action to recover limited to cases involving either non-emergencies or
a diagnostic procedure which involved invasion
(3) Reasonable prudent person in patient’s position wouldn’t have undergone
treatment diagnosis if he had been fully informed and that lack of informed
consent is a proximate case of injury/condition
(4) Defense to any action:
(a) risk not disclosed too commonly known to warrant disclosure
(b) patient assured practitioner would undergo medical treatment regardless
of risk involved/did not want to be informed
(c) consent on behalf of patient not reasonably possible (unconscious)
(d) medical practitioner...reasonable discretion as to the manner and extent to
which alternatives/risks were disclosed...reasonably believed
manner/extent could reasonably be expected to adversely and
substantially affect patient’s condition (controversial!)
(5) protecting med. profession from “vexations” litigation--justifies requiring
expert testimony and adopting customary care standard
E. Statutes/Regulations
1. Negligence statute allows for state to administer some penalty
a) fine/incarceration/injunction relief
2. Statutory construction:
a) legislative intent
b) direct criminal penalties are sole remedy for statute violations
3. Thayer, Public Wrong and Private Action
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a) Rule--An ordinary prudent man, knowing the statute and therefore unable to claim
ignorance of the law, would have chosen to break it, “reasonably” believing that
damage would not have resulted from his action.
4. Osborne v McMasters (deadly poison sold by accident)
a) Rule--Negligence is the breach of a duty; immaterial whether duty is one imposed
by rule of common law requiring exercise of ordinary care or by a statute designed
for protection.
b) But what about w/o statute?
(1) Lack of a statutory standard doesn’t preclude Pl. from establishing negligence.
(a) B<P(L)
(2) Serves as a wonderful shortcut! Lays out specifically what an actor of this sort
is supposed to do.
(a) powerful w/regard to details
(b) intent; specific reasons for standards
5. Martin v Hezog (buggy collision)

a) Rule--to omit the safeguards prescribed by law for benefit of another...is to fall
short of standard of diligence to which those who live in an organized society are
under a duty to conform. Statute is designed for protection of human life; not to
be brushed aside as a form of words, its commands reduced to the level of
cautions, and the duty to obey attenuated into an option to conform.
b) Successful excuse--customary exception. Violation is induced by desire to reduce
risk/high probability that risk will be reduced by behaving differently
(1) Tedla v Ellman (walking on “wrong” side of the road)
6. Wrong hazard problem
a) Gorris v Scott (sheep swept overboard)
(1) Happened that storm came up--if pinned up wouldn’t have been swept
overboard
(2) BUT statute not casually related to actual harm that occurred--legislation not
aimed to protect against particular hazard
(a) Pl/hazard not w/in protection of statute, court will not allow statute to
cover as a shortcut--->BACK TO BASICS (B<P(L))
7. Licensing statutes:
a) Brown v Shyne (chiropractic treatment and paralysis)
(1) Rule--If violation of statute by D. was proximate cause of Pl.’s injury, then the
Pl. may recover upon proof of violation. If violation of statute has no direct
bearing on injury, proof of violation becomes irrelevant. For injury caused by
neglect of duty imposed by penal law there is a civil remedy; but of course
injury must follow from neglect.
(2) License to practice confers no additional skill upon practitioner, or immunity
from physical injury upon patient if practitioner fails to exercise care. Failure
to obtain license not connected to injury.
(a) Irrelevance ex: moved to a new state, expired, same skills, etc.
(3) If lack of capacity/knowledge is reason for not getting license or incorrect
training than lack of license is HIGHLY related
b) Violation ought to give less weight than usual statutory violation--”some
evidence” formula
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(1) statute=presumption of prima facie negligence. Modern view same as CA
Evidence Code presumption; more than Brown gave
(a) Assumption that no license is lack of skill
(b) Alert individuals that failure to obtain gives any possible patient right
establish a negligence claim
c) Exception--violation of administrative requirement not a breach of standard of

care by itself. Lacks substantive content, so cannot impose standard of care
8. Right of private action:
a) Def’n: civil action against a statute. Private parties, not gov’t, can bring an action.
b) Supreme Court has hostile attitude towards implied rights of action
c) Uhr v Greenbush Schools (scoliosis tests in schools)
(1) Rule--in determining whether private right of action may be fairly implied:
(a) whether Pl. is one of the class whose particular benefit the statute was
enacted to protect.
(b) Whether recognition of a private right of action would promote legislative
purpose AND
(c) Whether creation of such a right would be consistent w/legislative scheme
(2) Doesn’t just lay out standard of care but CREATES A DUTY. Can’t assume
you can use statutory standard
(a) Can’t sue school when they do exam negligently (nonfeasance)
(b) Pl. says didn’t do them at all! (misfeasance) But Court doesn’t buy this
argument.
d) Court likely to consider private right of action to impose a duty enforceable in a
tort action (regardless of immunity clause)
e) Legislative intent if statute is silent (state/local)
(1) federal statutes-can’t assume to use to est. standard of care
(2) harder to use than state statute, even when it does create a standard of care and
there are hazards in D.’s conduct (restrictive)
(a) requires Pl. to show Congress intended statute to be used in litigation.
9. Dram Shop Statutes:

a) Standard of care giving alcohol to an intoxicated person.
b) Social host liability?-most courts have declined:
(1) real party at fault is driver, overly burdensome on host to monitor conduct of
guests.
F. Proof of Negligence: Res Ipsa Loquitur

1. “The thing speaks for itself”
2. inference of negligence and causation
3. Get Pl. to jury-won’t produce a directed verdict
a) jury still free to find D.’s conduct did not cause Pl.’s injury
b) Opportunity for jury to make a choice
4. Rare occasions when evidence is really strong and court will direct a verdict based on
res ipsa
a) “chewing tobacco and the toe”--of course someone was negligent!
b) D. clearly controls what caused accident--evidence REALLY strong
5. Byrne v Boadle (Barrel case)
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a) Rule--There are many accidents from which no presumption of negligence can
arise
6. Ybarra: authority for multiple Ds. Patient unconscious. Don’t know how injury
occurred, just know it occurred while in Ds. care. Has to be a medical
treatment/context!
7. Kind of evidence that doesn’t happen w/o negligence. Typically against one D.
Multiple D.=inference begins to decline
a) Anderson (tip of forceps broke off and had to be left): farthest in terms of multiple
Ds. Not the type of risk that would be disclosed, extremely rare/unusual.
(1) However! clear how injury occured-->different cause of action=strict liability
8. Conditional Res Ipsa: multiple reasons why injury occurred--Pl. must establish by
preponderance of evidence that injury occurred in a way that indicated negligence
IV. CAUSATION: PL. MUST LINK D. TO WRONGFUL CONDUCT, ONCE ESTABLISHED, TO HER
HARM
A. Cause in Fact
1. Start w/negligence, then causation!
2. causal connection that needs to be resolved in any tort suit. No longer limited to
situations in which Pl. searches for a discrete cause of a known/certain harm.
Genuine link b/w harm complained of and D.’s conduct.
3. “Necessary condition for the outcome”-harm did not occur in the absent conduct.
Eliminating other causes of injury.
a) D. must be of cause and reasonably important
b) NY Central RR v Grimstead (life-preservers/drowning case): nothing to say that
had there been a life preserver on boat, decedent’s life would have been saved.
(1) Pl. has b/p to show that there is a duty to take reasonable precautions to make
sure ppl who fall off boat can be rescued. Not enough evidence.
(a) Pl. must show only by preponderance of evidence--don’t have to
exclude every possiblity
(2) No longer indicative of the way courts approach causation (good
counterexample)
4. Burden of proof
a) Haft v Lone Palm Hotel (drowning; no lifeguard sign)
(1) Even with sign, still would have drowned, but obligation is to simply post
sign
(2) Burden shifting to D.; Pl. can’t prove sign would have made a difference
b) Legislative intent--too many D. can escape liability--would be common if D.
could get off the hook on causation grounds.
c) Zuchowicz v US (PPH and mice studies): in order for causation requirement to be
met, must be able to determine, by preponderance of evidence, that the D.
negligence was responsible for injury.
(1) Where such a strong causal link exists, up to negligent party to bring in
evidence denying “but for” cause
5. Role of the judge
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a) General Electric Co. v Joiner (PCBs) : trial judge has a “gatekeeper role” in
screening evidence in allowing expert testimony about causation (Daubert
standard)
6. Lost Chance Doctrine: D.’s conduct has caused no injury but an increased
risk/hazard of injury
a) Herskovitz v Group Health Cooperative (tumor; chances of survival): Pl. can’t
show by preponderance of evidence that death was caused “more likely than not”
by failure to diagnose. Impossible to meet causation hurdle, but D. clearly caused
gap in survival prospects. Do we want to allow Dr. to get off hook entirely?!
(1) Pl. can get to jury even w/o direct evidence
b) Reoccurring fact pattern--category of D. who will escape liability if we don’t
depart from tradition. Less than 51% still enough to get to jury.
c) Controversial--negligent party should be forced to pay only damages caused
directly by premature death! Majority feels right way to proceed is to limit the
type of damages that can be recovered (as opposed to Pearson’s all-or-nothing
approach).
(1) Old method--anyone 51%+ fully recovered; below got nothing
7. Joint and several liability/Joint causation--only “a” as opposed to “the” factual cause.
a) Kingston (fires): any two/more joint tortfeasors whose concurring acts of
negligence result in injury are each individually responsible for entire damages
resulting from joint acts of negligence. Each actor adopts conduct of his co-actor-
-whole loss treated in its entirety.
(1) Reoccurring fact pattern--either D. can be required to pay 100% of Pl.’s loss
b) Apportionment of harm--distinct harms on a reasonable basis. BUT however
indivisible a harm, either D. can be required to pay full sum.
(1) Summers v Tice (hunting party): Even though negligence of only one could
have caused the injury, both are liable; to hold otherwise would be to
exonerate both from liability although each was negligent and the injury
resulted from such negligence.
(a) B/P on D. to show that he was not the cause/point to other D.
(b) Reluctant to apply Summers to larger parties.
c) Market Share Liability: Exception to general rule that a Pl. must establish that the
D. proximately causes his injury
(1) Sindell test--all named D.’s are potential tortfeasors if the allegedly harmful
products are identical and share the same defective qualities (fungible), the
Pl. is unable to identify which D. caused her injury through no fault of her
own, and all manufacturers which created the defective products during the
relevant time are named D. (counterexample=Skipworth)
(2) lots of products for which market share looks promising, but doesn’t work
b/c product components vary as to ability to cause harm
d) Concert of action: agreement to commit a tortious conduct
B. Proximate Cause
1. More distant acts/events can create prima facie liability
a) Ryan v New York Central RR (woodshed and burned; spreading fire): everyone is
liable for consequences of his own acts; he is thus liable in damages for the
proximate results of his own acts, but not for remote damages.
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(1) If everyone in a certain radius should be compensated could be an

overwhelming number of damage awards (especially in an urban area)
(2) Fairness!
b) Recurring cases:
(1) “Wrong hazard coincidence”-->Berry v Sugar Notch (no contributory
negligence of speed limit)
2. Issues are conceptual in nature
3. Some harmful consequence suffered by Pl. was caused by D.--chain of events often
long and tortuous.
4. Key question: whether D.’s conduct can be regarded as a “substantial factor” in
bringing about Pl.’s harm.
a) can any intervening actions/natural events that occurred b/w D.’s conduct and
Pl.’s harm sever causal connection?
5. Standards of analysis
a) Foreseeability: type, extent, right person for risk, correct kind of risk, means by
which harm occurs
b) Directness: independent/dependent, culpability, time and geography,
extraordinary/normal
c) “Oddball cases”: don’t fit recurring fact patterns
(1) Brower v New York Central (Wagon collision; thieves steal property)
(a) Rule: the act of a 3rd person in intervening will not excuse the first
wrongdoer, if such act ought to have been foreseen.
(b) foreseeability: type (property damage), extent (nothing unusual about
property damage from collision), person (type of person we expect to
suffer harm), risk (theft?)
(c) directness: independent action of thieves, highly culpable (intentionally
wrongdoers who would be criminally liable), time/distance (all
happened quickly w/in area; no long lapse of time/distance),
extraordinary (normally if something is foreseeable it is not unusual)
(2) Watson v Kentucky (started fire to get back at boss)
(a) Culpability mixed w/foreseeability. Most people would want to avoid
risk to themselves. Not foreseeable with maliciousness; causal link is
broken. Specific facts are relevant.
(b) Highly fact sensitive-->how you phrase a claim can make a difference!
(3) Palsgraf: should have focused on passengers stampeding and not explosion
for foreseeability and directness!
V. THE DUTY OF CARE

A. The Good Samaritan: Failure to Act
1. Affirmative duties
(1) Misfeasance: Basic duty for all individuals to abstain from hurting other
persons (strangers and personal relationships)
(a) stranger-->under strict liability an invasion of the Pl.’s person or space
by the D. sets up a prima facie obligation to compensate. In the
negligence system, the duty of care is to take care to avoid harm to
another.
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(2) Nonfeasance: Negligence modified; care refers NOT to taking precautions to
avoid contact, BUT to render material aid/support to others
2. In general, no duty to protect another from his own negligence or that of a third
person.
a) Classic case=rescuer. Black letter principle: moral, but no legal obligation.
Time-honored principle of Anglo-American tort law (Yania)
3. Legislative responses-->designed either to induce rescue by insulating the rescuer
against liability for ordinary negligence or by imposing affirmative duties to rescue,
subject to fines. Rescuer in both cases liable for willful misconduct.
a) Vermont-->statutory duty to rescue w/limited condition. Protected from
negligence unless gross negligence .
(1) Negligence per se: violation of statutory requirement of duty.
b) Private Right of Action: Duty created by statute
4. Generally, Good Samaritan clauses protect rescuers/aiders from liability
5. Exceptions:
a) Non-negligent creation of risk: Creates a hazardous situation
(1) RST-->duty based on prior conduct creating a risk of physical harm: actor’s
prior conduct, even though not tortious, creates a continuing risk of physical
harm...actor has a duty to exercise reasonable care to prevent/minimize harm
(2) Montgomery: One may be negligent by acts of omission as well as
commission and liability will attach if the act of omission of duty owed
another, under the circumstances, is the direct, proximate and efficient cause
of the injury
b) Worst position requirement: Starts to provide help and add to risk
(1) left victim in worst position---> “in the actor’s charge”
(2) Negligence in performance!
(3) could have been aid from another source
c) Assume duty and induces reliance
(1) promissory estoppel: a promise, even if gratuitous, that induces reliance is
actionable!
(a) Reliance has to be foreseeable! Then wrong in causing Pl. to change
position to his detriment (Erie)
(2) Marsalis: voluntary assumption of duty. One who voluntarily undertakes to
care for, or to afford relief or assistance to, an ill/injured/helpless person is
under a legal obligation to use reasonable care and prudence in what he does.
Relied on D. to take the cat rather than city animal control.
6. RTS: Failure to exercise reasonable care if:

a) increases risk of such harm or
b) harm is suffered b/c of the other’s reliance
c) ** two are often hand in hand, but either will provide basis for relief
7. Public/quasi-public Defendants:
a) Utility company (Moch): No duty to 3rd party beneficiaries.
(1) City is a municipal entity. If there was a duty it would be statutory.
(2) Contractual duty not to members of the public-->goes too far. Potential
scope of liability is too large. Quasi-publics won’t enter into any more
contracts.
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(3) “Orbit of Duty”--public defendants have low orbits. Common idea that duty
to general public should just not be allowed. Courts will behave in a
protectionist manner.
b) Police-->no duty! gov’t to protect public generally. Protection limited by
resources of community and legislative executive decision. Owe a duty to
everyone is to owe a duty to no one.
(1) Limited exception-->Pl. relied to his/her detriment. Narrow fact-based
arguments that didn’t produce large-scale liability.
8. Special relationships:
a) Landlords (Kline)-->failure of landlord to protect against repeating intruders. If
landlord is on notice then affirmative obligation to protect tenants and guests.
Extends to hotel keepers, business entities, etc. Anyone collecting money to
provide a safe place to live (temporarily or permanently). Reliance on landlord’s
protection.
b) Psychologists (Tarasoff)-->duty emerges from special relationship b/w doctor-

patient, unless doctor creates the situation.
(1) Rule: A D. owes a duty of care to all persons who are foreseeably
endangered by his conduct, with respect to all risks which make the conduct
unreasonably dangerous. However, when the avoidance of foreseeable harm
requires a defendant to control the conduct of another person, or to warn of
such conduct, the common law had traditionally imposed liability only if the
D. bears some special relationship to the dangerous person or to the potential
victim.
(2) Extends to 3rd parties!
(3) Argument-->psychiatrists aren’t good at foreseeability--often wrong at
predicting dangerousness. Much less precision.
(4) Narrow duty--specific individuals named by the patient and to whom doctors
believed to be at risk.
B. Owners and Occupiers of Land
1. obligation to protect visitors from danger--regardless of whether the danger is
natural/artificial
2. duty traditionally owed to licensees/invitees
3. 3 options:
a) categorical way:
(1) invitees: on the land for some purpose in which he and the proprietor have a
joint interest. Conferring a benefit, ex: plumber, etc. (full duty)
(2) licensee: he proprietor has not in any way invited, but he has either expressly
permitted him to use his lands/has knowledge of his presence. He has either
accorded permission or shown no anxiety to stop his further frequenting the
lands. Social visit. (partial duty)
(a) No obligation to inspect/detect unknown defects, only duty t0
warn/protect against known hazards on the premises (Rowland)
i) court abandoned distinctions b/w categories--man’s life/limb doesn’t
become less worthy of protecting by the law or of compensation b/c
he has come upon the land of another w/o permission.
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ii) some Jxs still use category method...many courts eliminated
distinction b/w licensee and invitee, but kept distinction of
trepsasser
(3) trespasser: presence is either unknown to proprietor or practically objected to

(no duty)
(a) Attractive nuisance doctrine: Designed to cope w/problem that many
trespassers were children. only applies to artificial conditions. Must be
a place that is known to attract children. Children to don’t recognize
risk b/c of youth.
(b) Burden of protecting children is small in comparison to the injury that
can be caused B<P(L)
C. Negligent Infliction of Economic Harm (NIEH)
1. Ultramares v Touche, Niven & Co.
a) leading decision on liability for negligent misrepresentation.
b) RTS: limits liability for negligent misrepresentation to, at most, individuals who
are members of a limited group of persons for whose benefit and guidance the
information is supplied, provided that there is reliance on that information
(1) not duty to 3rd parties!
(2) Foreseeable users of material
2. Courts tend to be skeptical of causes only involving economic harm
a) some courts have extended the group that could recover to anyone who could
reasonably depend on services.
b) Many follow Ultramares, but most rely on RTS--> “reliance to the detriment”
3. Duty to not engage in fraud to everyone (intentional misrepresentation of knowledge).
BUT only owe a duty of non-negligence to named parties of contract.
D. Negligent Infliction of Emotional Harm
1. Mitchell v Rochester RR: P cannot recover for injuries occasioned by fright when
there is not immediate personal injury (physical).
a) Proximate damages are such as are the ordinary/natural results of the negligence
charged and may be expected. P’s injuries were the result of an
accidental/unusual combo of circumstances (too remote to justify recovery in the
action).
b) Damages given in this case would open a flood of cases where emotional
damages could be feigned.
2. However, diff. approaches now used by courts-->impact test: emotional distress
transferred into physical harm. But still require a physical manifestation of emotional
distress.
a) Looking at the veracity of the harm, physical harm is likely. Both physical
manifestation AND physical harm are needed.
b) The type of person that would foreseeably suffer from emotional harm.
3. Dillon test: Emotional distress results from injury to another. Chief element in
determining whether D owes a duty to P is the foreseeability of the risk. Courts will
consider:
a) Whether P was located near the scene of the accident as contrasted w/one who
was a distance away from it (whether P was near)
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b) Whether the shock resulted from a direct emotional impact upon P as contrasted
w/learning of the accident from others after its occurrence (immediacy of shock-
sensory observances) and
c) Whether P and victim were closely related as contrasted w/the absence/distance of

relationship.
4. Zone of danger: Must already fear for your own safety! Many courts expanded rule
when P witnessed the injury to another when they were in the zone-of-danger where
they could be injured themselves.
(1) Most courts use Dillon for bystander emotional distress; P need now show
w/in zone of danger. Siblings and parents can recover if they saw the event
as it was happening (heard it). Contemporaneous sensory. Have to be able
to come on scene immediately.
(a) Courts have consistently held that cohabitants, even non-married
relationships bar recovery
(b) Handful (2-3) court permit recovery w/o contemporaneous event.
(2) NY still follows zone of danger.
5. RTT: Claim may be brought when it occurs in the course of specified categories of
activities, undertakings or relationships in which negligent conduct is especially
likely to cause serious emotional disturbance (i.e., funeral homes)
6. Fear of safety must be reasonable under the circumstances!
a) including how serious physical manifestations are.
7. Wrongful death/loss of consortium: rests on social fact that individuals have
obligations of duty/support to other persons
a) Wrongful death-->statutory everywhere, not at common law
(1) Estate, next of kin, dependents, etc.-->groups who can sue. Restricted from
recovering for pecuniary loss (lost wages of breadwinner, etc.)
(a) may recover for economic support they would have received had the
accident/death not occurred and the loss of companionship.
i) medical expenses are NOT apart of wrongful death actions per se.
(b) Some states allow for recovery of grief (not most)
(c) Each state statute sets its own measure of damages for wrongful death
actions--abandonment ceilings (compensation for pain and suffering)
(2) Some Jx have the strangest arguments made to the jury, particularly when
decedent is a child.
(a) No pecuniary loss; actually a gain b/c parents no longer have to pay
expenses for rest of child’s minority.
(b) Some courts do allow recovery for emotional damage/loss of
companionship
b) Loss of consortium-->family member has been injured; loss of value of

relationship during period injured family member is suffering as a result of D’s
negligence
(1) Common law origin--evolved from fiction that law supported and
mandated=husband and wife were one person
(a) women lost legal entities; husband entitled to wife’s services
(b) Today it is gender neutral-->available to either spouse
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(2) Derivative claim--contingent on success of injured spouse’s tort action. Will
add-on to original injury claim and jury assesses both together. However, if
jury determines lack of negligence, then loss of consortium claim dies as
well.
(3) Kinds of relatives--spouses yes, but cohabitants/engaged couples no
(a) Late 1970s-80s: can children can recover for loss of parental
consortium/vice-versa?
i) Majority of states decline to follow this path b/c of cost to D
c) Courts have fairly narrowly constricted wrongful death b/c spouse will already
have loss of consortium.
VI. DEFENSES AND DEFENDANTS
A. Plaintiff’s Conduct
1. Contributory negligence doctrine
a) Butterfield (horse riding case/pole-in-road): One person being in fault will not
dispense w/another’s using ordinary care for himself.
b) Remained a complete bar to P’s recovery until well into 20th C. -->P caused his
own harm b/c he had the opportunity to avoid that harm.
c) Last clear chance doctrine: If just before the accident D had an opportunity to
prevent the harm, and P did not have such an opportunity, the existence of this
opportunity (last clear chance) wipes out the effect of P’s contributory negligence.
(1) Once D becomes aware of P’s peril, then he becomes obligated to take steps
to avoid the danger. P can’t count on this to protect his interests, however.
Only applies to a small # of cases.
(a) Both are negligent, but P does not lose! Must show D was guilty of
more than just ordinary negligence. Have to show knowledge of P’s
peril or extreme recklessness.
(b) RTS:
i) Helpless P--unable to avoid it by the exercise of reasonable care, but
D is negligent in failing to utilize reasonable care when he knows of
P’s situation and would discover the situation.
ii) Inattentive P--D realizes/should realize P is inattentive and unlikely
to discover peril in time to avoid the harm.
d) Seat belt defense-->not a contributory negligence defense!
(1) Causation argument--failure to wear seat belt played no causal role in
accident itself. May have enhanced injuries but didn’t cause accident.
(2) Many Jx have rejected this approach-->failure to wear a seat belt, if
established, and if evidence shows it enhanced injuries, will bar P to recover
for enhanced injuries. Can only recover for harm suffered had be been
wearing his seat belt.
e) TAKE P AS YOU FIND HIM!
(1) However, multiple causes of an injury are not indivisible-->apportionment.
P’s negligence may have caused the rest of the harm.
(2) Wrong risk argument
f) Duty to mitigate damages! If P won’t go to the doctor and subsequently causes an
infection, D should only pay for initial injuries.
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2. Assumption of risk
a) Lamson: P informed D (employer) of dangerous racks that could fall; D says “too
bad”; very injury P has envisioned occurs. Doctrine made it impossible for
employee to recover from workplace injury during 19th C. Another situation that
led to Worker’s Comp.
b) Barred a suit just like a contributory negligence finding. P proceeded in the face
of a known hazard; treated just as if he were negligent.
c) Primary sense: D didn’t owe a duty/didn’t breach the one owed. Different way
of saying “no negligence”. Low level hazard; not negligent of D to expose P to
risk.
(1) P will lose period, even under a comparative negligent regime.
(2) One who takes part in a sport accepts the dangers that inhere in it so far as
they are obvious and necessary. If risk is open/obvious and give notice of its
own hazards, P cannot recover if he then proceeds (Murphy v Steeplechase).
d) Secondary sense: D was negligent/breach of duty. Typically comes down to
contributory negligence--reasonable for P to proceed under the circumstances?
(1) Contractual assumption of risk:
(a) Purchasing a ticket is not an automatic waiver on the part of P
i) A business owner still has a duty of active care to make sure that its
premises are in a safe and suitable condition for its customers.
Responsibility for inherent risks on P when such risks are obvious
and necessary. A ski area’s own negligence is neither an inherent
risk or obvious/necessary in the sport of skiing. Skier’s assumption
of inherent risks do not abrogate ski area’s duty (Dalury v SKI Ltd.)
(b) Comparative fault doesn’t apply if contract is upheld. But can’t just
assume a waiver won’t stick.
3. Comparative negligence
a) P’s negligence no longer a complete bar. As a result, most Jx don’t need last clear
change b/c they have moved to comparative negligence regimes. D can
sometimes reduce P’s damage award.
b) Li v Yellow Cab Co. of CA: Liability for damages must be borne by those whose
negligence caused it in direct proportion to their respective fault.
(1) Pure form: liability in direct proportion to fault in all cases, even when P’s
conduct was much worse than D.
(2) Apportionment based on fault up to the point at which P’s negligence is
equal to/greater than that of D. When that point is reached, P is barred from
recovery. “50”%.
(a) assign fault shares--led many to adopt pure comparative negligence!
c) Now a creature of statute!
(1) NY--> P’s “culpable conduct”; not just contributory negligence but also
assumption of risk. Classic pure comparative negligence regime.
B. Immunities
1. If you are a D, immunity is good! No one can sue you; action will be dismissed.
Don’t care how negligent D was, as long was conduct was w/in the scope of
immunity.
2. Doctrines/public policy goals:
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a) Charitable immunity: if providing public services w/o pay, shouldn’t have to deal
w/lawsuit! Not really applicable anymore; old regime
b) Family members:
(1) Spouses--husband/wife=one person. Even egregious torts in old world
couldn’t be ligated. Virtually all Jx have abrogated entirely. If persists, then
in the form of insurance contracts/family waiver provisions.
(a) worried about fraudulent/collusive suits--insurance company would
have to pay and both would collect.
(2) Parent/child--unknown at common law. Arose in late 19th C. in cases that
found as a matter of public policy, children shouldn’t be able to sue their
parents. Promotion of family harmony.
(a) only serious torts today, no question that child can sue a parent
(intentional misconduct, etc.)
(b) More difficult in issues of parental supervision. Companies want to
implead parents for negligence. Some courts have preserved parental
immunity for these claims.
i) No duty of a parent to supervise, but if entrusting child w/something
dangerous that could be dangerous to others, parents can be
impleaded.
c) Governmental immunities:
(1) Personal: (i.e. judges, prosecutors, legislators, gov’t employees) maintain
absolute immunity, as long as acting in an official capacity.
(a) terrible law passed, bad case decision, prosecutor brings bad charge=no
lawsuit available
(b) BUT when one steps outside official role, immunity is lost
(2) Municipalities: cities, towns, etc.
(a) common law says immune purely on public policy grounds. Courts are
protective of the “public purse”; extremely difficult to sue a local gov’t
for negligence that caused injury
(3) Governmental (things gov’ts typically do)
(4) Proprietary (things private individuals do): If a private person/corporation
would be liable, why shouldn’t city?
(a) large-scale liability may affect “public purse” substantially; claim will
probably be dismissed.
d) State/Sovereign Immunity: convenient to have; didn’t die w/rise of democratic

principles. Statute does not allow sovereign to be sued. May waive immunity in
specified circumstances.
(1) Rule: The United States waives sovereign immunity under the circumstances
where local law would make a “private person” liable in tort. (United States
v Olsen)
(2) Previously needed private legislation to sue the gov’t. Now FTCA:
(a) general waiver BUT not liable when one exception applies. Would be
liable to the same extent as a private individual under like
circumstances. Exception-->Ferris doctrine: in military, can’t sue for
an injury suffered while on active duty. Deemed to assume risks.
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(3) Most litigation-->discretionary function exception: courts have struggled
w/workable rules to figure out what’s on immunity side of the line.
(a) Berkovitz: It is the nature of the conduct, rather than the status of the
actor, that governs whether the discretionary function exception applies
in a given case. In examining the nature of the challenged conduct, a
court must first consider whether the action is a matter of choice for the
acting employee. Whether the exception applies depends on whether
the judgment is the kind that the discretionary function exception is
designed to shield.
i) No discretion w/clear statutory or regulatory standard that is
violated.
(b) Don’t want to discourage people from undertaking public office to make
decisions.
(c) Executive officials typically have qualified immunity: Acting in good
faith. fact based requirement. hearing may be required before
determining immunity.
(d) Level at which a decision is made-->A cabinet official making an
important policy choice about how to enforce a statutory regime will be
protected, but a truck driver in a federal truck deciding speed will not be
protected. Low-level vs high-level job description.
i) higher the gov’t actor/agency, more discretion function exception
bars liability
C. Joint Tortfeasors: Contribution and Indemnity

1. Common goal=equitable distribution of loss among multiple tortfeasors.
2. Joint liability: each of several obligors can be responsible for entire loss if others are
unable to pay
3. Several liability: situation where each person has an obligation parallel to that of the
others. Share of any final judgment of one is not increased by default of another.
4. Joint-and-several liability: obligors are joint to the obligee, but bear several liability
among themselves, if all are available to pay. Either D can be required to pay P full
sum of her damages.
a) Fighting over how they share in the loss
b) Contribution: claims against each other. Made available to a D who paid more
than his fair share of damages.
(1) Old world before comparative negligence; P is not at fault at all, juries not
assessing fault b/w A and B.
(2) Pro rata basis: What A could obtain from B is 50% of what he paid to P.
c) Indemnity: Total shifting of the loss b/c there is gross disproportion of fault b/w
D.
(1) Ex: a truck driver injures P b/c he runs a red light. P sues driver and driver’s
employer. Obtains judgment b/w both--collects full sum of damages from
employer. Employer than has an action for indemnity available against
driver.
5. Settlement-->P only previously counted if he settled w/one of the D. To avoid double

recovery, amount settled would be subtracted from what is owed from other D.
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a) Ex: $20K from B in a settlement and proceeded in action against A. Jury said
total claim is worth $100K; P can only recover $80K from A.
b) Comparative negligence-->P recovering who were themselves at fault and may be
more so than wrongdoers. Jury assessing fault shares.
(1) AMA Rule: A current tortfeasor should be able to obtain partial indemnity
from other current tortfeasors on a comparative fault basis (comparative
indemnity).
(a) Joint and several liability not abandoned; P can still gain full sum!
(b) Partial indemnity--partially shift and get in accordance w/fault shares
(fault-based)
c) Courts still at odds w/how to determine fault:

(1) McDermott rule: Proportionate share rule--credit for the settling D
“proportional share” of responsibility for the total obligation. No suits for
contribution from the settling D are permitted, nor are they necessary, b/c the
non-settling D pays no more than their share of the judgment. Rather than
subtracting the amount of the settlement, can also subtract fault share.
(a) problem--in some cases could permit P to recover more than total
compensation
(2) Some Jx have followed AMA, some McDermott, some more complex
schemes.
(a) NY--possible variation on pro rata. Subtract greater of the amount the P
settled or the fault share to avoid double recovery.
(b) CA--modified joint and several liability. Counteracts deep pocket rule.
Liability of each D for noneconomic damages shall be several only and
not joint. Each D only liable for its fault share of noneconomic
damages.
VII. TRADITIONAL STRICT LIABILITY
A. Vicarious Liability
1. Liability of employers for the wrongs of their servants/independent contractors.
Bears responsibility solely for what another party has done.
a) Respondeat superior--superior who has to reply
2. Agency theory: Employer is the principal; employee is the agent. Acts of agent are
attributable to the principal.
3. Motivation test (traditional rule): If employee is motivated by desire to “serve his
master”; during his working hours employer can held liable. If, however, employee is
motivated by his own interests and desires, employer is off the hook.
a) Dissatisfaction w/motivation rule-->employee not motivated by any desire to
serve employer, but foreseeable consequences of employee’s actions (Bushey)
4. Most of the time when an employee commits a crime, employer will not be liable.
Too far outside the scope; motivated personally. Purely for his own benefit most
likely. BUT NEGLIGENCE IN HIRING IS A DIFFERENT MATTER.
5. Classified as an employee?
a) Borrowed servant doctrine: liability for an individual who temporarily makes use
of someone else’s employee.
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(1) An independent contractor does not count; hiring individual usually is not
liable
B. Animals and Abnormally Dangerous Activities

1. Animals
a) Difference b/w wild and domestic animals. Circumstances are irrelevant; strict
liability will apply.
(1) Rule: When wild animals are kept as pets, an owner is liable for injuries
caused by the animal, even if the owner had no prior knowledge of animal’s
propensity to cause harm or exercise the utmost care in preventing harm.
Owners of domesticated animals may also be held liable if the owner
knows/has reason to know that the animal as abnormally dangerous
propensities. This liability attaches regardless of the amount of care exercise
by the owner (negligence). Breach of duty of care/failure to act upon an
animal’s abnormally dangerous propensities--defenses of contributory
negligence and assumption of risk are available (Gehrts v Batteen)
(2) Only liable if owner is found to be at fault, i.e. history of dog, nasty
disposition, etc. “One free bite” rule is not true.
(3) Sometimes breed may mean strict liability (normally statutory)
b) Fencing in vs fencing out
(1) West=roam free, fencing out statutes. Animals in trespass won’t impose
liability
(2) East=fencing in statutes.
2. Ultrahazardous/abnormally dangerous activities
a) Rylands v Fletcher=typical beginner of this category.
b) Classic example=blasting. Litigated the most--courts all agree. Even experienced
users make modest mistakes, but not common/high risk of great harm.
(1) One who engages in blasting must assume responsibility, and be liable w/o
fault, for any injury he causes to neighboring property (Spano)
(2) Always strictly liable.
c) RTS didn’t like ultrahazardous--changed to abnormally dangerous:
(1) Factors: high degree of risk of some harm to the person, land, chattels of
others; likelihood that the harm that results from it will be great; inability to
eliminate the risk by exercise of reasonable care; extent to which the activity
is not a matter of common usage; inappropriateness of the activity the place
where it is carried on and; extent to which its value to the community is
outweighed by its dangerous attributes.
(2) RTT: simple language; foreseeable and highly significant risk of physical
harm even when reasonable care is exercised by all actors and activity is not
one of common usage (only a few years old--difficult to assess how
influential.
d) Courts don’t like to find an activity is abnormally dangerous...mere fact it is risky
is not enough. Risk cannot be eliminated through all possible care, ex:
transporting highly radioactive materials, atomic testing, transporting things
w/mass epidemic, bombs (making/transporting)
VIII. NUISANCE
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A. Private Nuisance
1. Having a possessory interest in land...designed to protect possessors in the free
enjoyment of property interests against interferences.
a) No invasion is necessary!
2. D must possess any one of three mental states:
a) Intentional interference w/ P’s rights; must know that harm P is complaining
about has occurred and is continuing.
b) Negligence
c) Abnormally dangerous activity or other conduct giving rise to strict liability
3. Injunctive relief to shut D’s activity down (powerful remedy). Most nuisances
encompass ongoing activity!
a) D’s interests taken into the conduct. Continuation has to be feasible, but there is
an element of compensation. D may be required to pay damages, but won’t
necessarily go out of business.
(1) Serious harm and compensation that would but D out of business is not
enough for P to maintain a nuisance action
B) GRAVITY OF THE HARM>UTILITY OF THE CONDUCT=NUISANCE
ACTION!
(1) An activity the general public does not want to continue
4. Classic cases:
A) Extra-sensitive P: take P as you find him; can fully recover. BUT differs under
nuisance law! Normal person under normal circumstances--court finds for D.
B) Coming to the nuisance rule: person who moves to a spot knowing about activity
in question and then brings a nuisance claim.
(1) Assumption of risk not decisive in nuisance law. Not irrelevant however;
coming to nuisance is not determinative, but courts will take it into account.
(2) “Competing land use”--policy basis; don’t want to limit/stop change to area.
Inhibit development/require developers to buy him out.
(3) Can find cases where it is a decisive factor but typically coming to the
nuisance will not be enough to prevent P from going forward
(4) Remedy=”purchased injunction” (paying for the move)
B. Public Nuisance
1. Interference common with a “right common to the general public”
2. P has to show he suffered a harm different in kind than that suffered by general
public--”special injury”
3. Liability typically ceases when recovery is economic/purely economic loss
(Kingsman, 532 Madison Ave)
a) Orbit of liability is seemingly large, so economic loss is a stopping point
IX. PRODUCTS LIABILITY

A. Tort or Contract?
1. Activities of all manus/distributors/sellers who have placed a product in the stream of
commerce and are therefore no longer in possession of it at the time it causes
damages.
2. Historically difficult to sue a manufacturer:
26
a) Privity: courts routinely held that a product user/consumer who was not in privity
w/the maker of the product could not sue on an implied warranty theory.
b) Warrant of merchantability was to be used for ordinary/foreseeable use. Also
applied to torts actions, not just contracts/warranty. Duty owed b/c of a contract;
no duty to user or bystander (only a duty to seller)
3. “Citadel of privity” fell during 1960s-->now may typically proceed on a tort or
implied warranty theory against product manufacturers and sellers.
a) UCC §2-318: Natural person (not a business). Often coupled w/other statutes
that allow people to sue even if not in household of buyer.
b) Tort liability--RTS 402-A:
(1) Applies to any product seller. Exception is those who are not in the business
of selling (occasional sellers). Any product--services are not subject to
liability.
(a) All manufacturers are sellers, even if not directly to consumers.
(2) “Defective condition unreasonably dangerous to the user/consumer or his
property” (most ligation).
(a) Unreasonable sounds like negligence law; defectiveness sounds like
warranty of merchantability. 3 types of claims (all lumped together):
i) Manufacture defect: feature of the product that wasn’t intended/not
supposed to be present. Most earlier cases and easiest--
>straightforward.
ii) Design defect: design makes it unreasonably dangerous to
buyer/consumer. Manufacturer intended such results though. More
highly contested--extent to which strict liability would apply in what
could be a negligence approach. Still B<P(L)!!
iii) Failure to warn: fails to warn about hazards to take reasonable steps
to safeguard from them.
c) Now even applies to bystanders as long as they are foreseeable.

4. Protection from physical harm only (person/property)! Doesn’t apply to economic
loss, emotional distress, etc. Must reach the consumer/buyer w/o substantial change
in the condition in which it was sold (unchanged). Not liable if the product was
altered by a 3rd party or if product is old and has been in use for a substantial period
(working capacity altered).
a) Economic loss rule still applies! Many times exclusively personal injury (Casa
Clara Condominiums)
5. Strict liability! Even though the seller could show that it has used all possible care in
preparation and sale of product. Manufacturing line could be the best in the industry,
have safety awards, training of employees is top notch, etc. Even if only one
accident!
a) Can also apply to seller of a component part (still must be unchanged)
b) Utmost care on the part of the manufacturers! Useful incentive to greater safety;
dangerous products priced out of the marketplace.
(1) “Safer universe” theory has actually worked! Accidents in home and
industry have declined in level/severity. However not all of it is products
liability-->heavy regulations, etc. Litigation ahs not declined.
27
c) Also manus can afford to pay; deep pockets/different ability to pay. Motivated by
economics; large judgments=different product designs.
d) Imbalance of users and producers to correct product defects. Some products are
unavoidably risky! But are extremely useful/valuable. Mere fact that it causes
injury is not enough, i.e., blood, vaccines, prescription drugs
B. The Concept of Defectiveness (Design defects/failure to warn)
1. Apply consumer expectation test OR reasonable alternative design!
2. RTT: circumstantial evidence is appropriate when difficult to show product default
directly. Something that ordinarily occurs as a result of a product defect (res ipsa for
products cases).
a) Kind of accident that normally doesn’t occur w/o negligence. But negligence is
subtracted here b/c don’t need to show negligence in a product liability action--
replaced w/product defect (Speller)
b) Campo v Schofield: products defects that were “open and obvious” to
user/consumer could not be found to be defective and would not result in liability
on the part of the manufacturer.
(1) Why? Assumption of risk! Not sure whether courts meant primary or
secondary assumption of risk. Today many cases have overruled.
(2) No incentive to make things safer...liability when exposed if product was
used as intended or even an unintended yet reasonably foreseeable use (again
sounds like negligence law)
c) Michallef v Miehle Co: easy w/which design features recommended could be
implemented (custom of other products, safety records, cost).
d) Courts very torn--no consensus in terms of how to apply design defect!
(1) Barker v Lull: a product is defective in design when either (1) the product
fails to perform as safely as an ordinary consumer would expect when used
in an intended/reasonably foreseeable manner, or (2) if the benefits of the
challenged design do not outweigh the risk of danger inherent in such design.
(a) Burden on D to show cost-benefit analysis. P can show design defect
through consumer expectations dest OR the product design caused the
injury.
i) RTT-->no consumer test at all! Less useful, many courts think it
should be abandoned.
(b) Still has to operate in the same way consumers desire; can’t
dramatically raise the cost and can’t introduce new risks although
different from risks inherent in the product itself.
(c) Might find product defect even w/no alternative design--shouldn’t have
been marketed at all!
(2) Linegar v Armour: a manufacturer is not obliged to market only one version
of a product, that being the very safest design possible. Want to give
consumers a choice! A product is not defective simply b/c it fails to protect
against every single hazard.
3. Duty to warn
a) MacDonald v Ortho Pharmaceutical: D must warn all persons who it is
foreseeable will come in contact with, and consequently be endangered by, the
28
product. Narrow exception is when warnings have been given to a reasonable
intermediary, so that the manufacturer has no duty directly to warn the consumer.
(1) Learned intermediary defense: warning need not be given to consumer of
drug, but instead to prescribing physician to translate technical jargon.
(a) However, warnings should go directly to consumer w/contraceptive
pills!
b) FDA approval doesn’t apply to liability--minimum standard but jury should

demand more!
c) Today-->too many warnings; people don’t take them seriously anymore/bother to
read them.
d) Maybe no one knew of hazards?? Can’t warn about something they didn’t
know....BUT could have done test marketing! (Vassallo v Baxter Healthcare
Corp.)
(1) State of the art standard: Whether competitive products similarly lacked
safety feature.
(2) Will be held liable if a reasonable testing program could have uncovered
defect. How will testing program of the D compare to what we’d expect of a
reasonable manufacturer under the circumstances? Clinical trials, FDA
approval process
(a) Many manus worry b/c not insulated even if they comply w/research
standards and FDA approval process. People become anxious/panic
reactions, which can cause symptoms. Even spurious claims can gain
lots of transaction and cause great loss to manus.
(b) Definitely inhibits new product development. Ex: Nat’l Childhood
Vaccine Act--vaccine injuries taken out of tort liability entirely
C. Defenses
1. Product misuse--not being used in its intended manner. Some misuse would
automatically disqualify P; completely bizarre use in a totally unexpected way.
2. Foreseeable misuse standard: if misuse is foreseeable, manufacturer may be liable!
RTT says that if hazard is so open and obvious, manufacturers should not be required
to warn. However, reminders/warnings are very cheap! But warning about every
possible hazard creates too many warnings! Lose efficacy
3. Contributory negligence is not a defense! May reduce a damage award, however,
through utilization of comparative fault. Can come up w/P negligence or assumption
of risk that is so high P loses altogether, but rare. Just b/c you lost on one claim
doesn’t mean another one is not available.
4. Pre-emption: Supremacy Clause provides that any federal statute or regulation shall
take precedence over an inconsistent state law. Mismatch b/w tort action and agency
goal.
a) “Savings Clause”: compliance w/a federal safety standard does not exempt a
person from any liability under common law. Adequate room is left for state tort
law to operate.
b) Private right of action problem; did Congress intend to infer one or should the D
have done something different? Often a defense on part of manu. FDA pre-
emption has gone back and forth.
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X. INTENTIONAL TORTS
A. Assault, Battery, False Imprisonment, and Intentional Infliction of Emotional Distress
1. RTT: A person acts with the intent to produce a consequence if the person acs with
the purpose of producing that consequence or the person acts knowing that the
consequence is substantially certain to result.
a) Might be based on purpose or knowledge, i.e., knowing with substantial certainty
that a specific even will occur.
b) Wants to make happen or knows w/substantial certainty...
2. D has to show conduct was free from blame to escape liability.
3. Battery: contact; intent to cause a harmful/offensive conduct. Can strike someone’s
clothing instead of physical person.
a) Even if not intending serious harm, must take P as you find him!
4. Assault: intent to cause imminent apprehension from potential contact. Ex: fright that
resulted in physical harm.
5. False imprisonment: intent to confine or knowledge w/substantial certainty and then
must show confinement. Blocking someone’s way does not constitute false
imprisonment (Bird v Jones). Must be total confinement; not merely one direction
blocked. Often regulated by statute.
a) Also does not need to be physical (Coblyn). P can reasonable fear leaving a
particular situation.
(1) Shopkeepers have a reasonable privilege to detain, but requirement is that
detention must be in a reasonable manner for a reasonable time and w/a
reasonable basis for detention.
6. Intentional Infliction of Emotional Distress: mainly a negligence claim (duty?).

Intentional or reckless infliction, by extreme and outrageous conduct, of severe
emotional/mental distress, even in the absence of physical harm. Average member of
the community would be lead to exclaim, “Outrageous!”
a) Even if directed at 3rd person, still liable to immediate family member or anyone
else present.
b) Categories=practical jokes, threats that aren’t imminent (vague, nonspecific
threats in the future not enough for assault), bill collectors (over the top tactics),
dead bodies (undertaker mix up; reckless), libel/slander (however celebrities often
give up a reasonable expectation of privacy)
c) Law does not provide remedy for certain annoying actions!
B. Trespass to Chattels and Conversion
1. Trespass to land: protect possessory interest in real property.
a) D must either intentionally enter P’s land w/o permission, remain on P’s land w/o
the right to be there, even if she enters rightfully, or put an object on/refuse to
remove an object from P’s land w/o permission
2. Trespass to chattels: protect possessory interest in personal property
a) Intentional interference w/person’s use or possession; D only has to pay damages
not the full value of the property
b) Measure of damages: diminution of value to object based on harm done
3. Conversion: analog to threat. Intentional interference that is so substantial D should
be required to pay the property’s full value. P must show intent to exercise dominion
and control over the property of another, and a harm to P’s property occurs.
30
a) Measure of damages: “forced sale”--D forced to buy it from P at its market value
b) Nothing has to be taken--no trespass to land, no assault/battery/false
imprisonment
C. Defenses
1. If P voluntarily consented to D’s actions, then those actions are privileged
a) Consent issues often arise in sports/illegal prize fighting--emphasis on playing by
the rules. As long as blow P is complaining about is received in the spirit of the
game, then victory for D. BUT if D’s conduct is outside the rule and is
gratuitously vicious, then P did not consent.
2. Self-defense, defense of others, and defense of property-->proportionality! Law
permits individuals to protect self, others and personal property but general rule is
that response has to be reasonable.
a) Harm feared must be reasonable! Doesn’t need to be right! Even if coming to the
aid of another.
b) If D is actually present on premises, possibility that a self-defense claim will arise
b/c of a reasonable fear for his own safety; may use force that would cause a
serious injury. Some states--when a felony is in progress, also may use force.
c) If off the premises, Bird and Katko followed-->disproportionate response to need
to protect D’s personal property.
3. Insanity is a non-defense! Insane person held to the same standard in assault/battery
claims.
4. Necessity defense: D has privilege to harm the property interest of P where this is
necessary in order to prevent great harm to third persons or to the D herself.
a) Public necessity: if interference is necessary to prevent a disaster to the
community or to many people. No compensation has to be paid by the person
doing the damage. Ex: fire dept having to tear down houses to avoid further harm
to other houses in forest fires. Public entity must show houses would have burned
down anyway.
b) Due Process-->gov’t cannot take your property or else compensation.
XI. NO FAULT, COMPENSATION SCHEMES AND COMPENSATION CAPS

A. Alternatives to tort system. Much cheaper administratively and wide arena of coverage.
B. US adopted in a piecemeal fashion-->radiological hazard scheme, NCVA, atomic injury
compensation scheme, 9/11 Compensation Fund.
1. Most are federal; state schemes are less successful
C. Designed for a particular group in P in a particular context. Some get good reviews,
others worse reviews.
D. Proposals to limit actions against doctors, products liability, etc. Typical
models=compensation schemes and damage caps
E. Not as responsive in compensation schemes as opposed to tort schemes-->judges,
advocates, etc, consistently responding to changing circumstances.

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TORTS GARRISON FALL 2016

I. THEORIES OF LIABILITY: TRESPASS TO NEGLIGENCE TO STRICT LIABILITY

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II. COMPENSATION FOR INJURIES

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2. Vaughan v Menlove (burned down cottages with haystack)

4. People who can’t conform to reasonable standard

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(2) Objective test/reasonable person standards will vary under certain

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6. Terry, Negligence--for conduct to be negligent, risk must be unreasonably great (and

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b) Lama v Borras (back operation w/no antibiotics)

8. Informed Consent/Disclosure Doctrine--attractive litigation tool

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b) Now often the subject of statute--legislation sets standard (p.258). Request of

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5. Martin v Hezog (buggy collision)

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c) Exception--violation of administrative requirement not a breach of standard of

9. Dram Shop Statutes:

F. Proof of Negligence: Res Ipsa Loquitur

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5. Role of the judge

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(1) If everyone in a certain radius should be compensated could be an

V. THE DUTY OF CARE

6. RTS: Failure to exercise reasonable care if:

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b) Psychologists (Tarasoff)-->duty emerges from special relationship b/w doctor-

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(3) trespasser: presence is either unknown to proprietor or practically objected to

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c) Whether P and victim were closely related as contrasted w/the absence/distance of

b) Loss of consortium-->family member has been injured; loss of value of

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d) State/Sovereign Immunity: convenient to have; didn’t die w/rise of democratic

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C. Joint Tortfeasors: Contribution and Indemnity

5. Settlement-->P only previously counted if he settled w/one of the D. To avoid double

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c) Courts still at odds w/how to determine fault:

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B. Animals and Abnormally Dangerous Activities

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IX. PRODUCTS LIABILITY

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c) Now even applies to bystanders as long as they are foreseeable.

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b) FDA approval doesn’t apply to liability--minimum standard but jury should

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6. Intentional Infliction of Emotional Distress: mainly a negligence claim (duty?).

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XI. NO FAULT, COMPENSATION SCHEMES AND COMPENSATION CAPS

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