Torts Outline – D.

Coleman
 Overview
o Why do we have it?
 Deterrence
 General deterrence – preventing “self-help”
 Specific deterrence – deterring/regulating harmful behavior
 Compensation
 In the absence of charitable donations, family wealth, and charity,
tort law provides financial relief to a party who has been injured by
another
 Compensatory damages – compensation for losses suffered
 Nominal (dignitary) damages – symbolic compensation for
intentional torts which do not result in measurable economic loss
 Punitive (exemplary) damages – awarded where the defendant’s
behavior is particularly egregious
o Evolution of tort law
 The historical trend is away from common law and towards legislation
 The historical trend is away from strict liability and towards mental fault
o Threshold Issues
 Collectability of Claim – since the plaintiff’s lawyer is paid nothing unless
the plaintiff wins, and since the plaintiff’s lawyer’s share of the award is
capped, the size of the claim and the chance of prevailing are extremely
important considerations
 Vicarious Liability
 Employer-Employee Relationship
o Employers are liable for the torts committed by their
employees
 There is an exception for intentional torts
 Unless the employment involves such torts
(a bouncer), or involves a position of trust
(daycare provider)
o Is the person an employee, or independent contractor?
 Was the work closely managed or directed?
 Does the actor supply his own materials and
supplies?
o Was the tort committed in the scope of employment?
 Joint Enterprises
o Where each party pays an equal share in the enterprise and
have equal say in how it is conducted, liability may attach
vicariously to all partners
o Oftentimes, sophisticated partnerships indemnify against
their partners
 Parents-Children Relationship
o In some jurisdictions, the damages parents may have to pay
for their children’s acts are capped
 Statutory and Common Law Immunities
  Statutes of Limitations
o Laws which limit the amount of time a party has within
which to file suit against defendant
o The period begins when the claim arises, when it is
discovered by the potential plaintiff
 Workers Compensation Statutes
o On-the-job injuries are compensated entirely from the fund
o It is good for workers because they realize the
compensation quickly, without litigation, and because they
need not prove the employer’s fault
o It is bad for workers because it is often less than they might
receive in court
 Sovereign Immunities
 Federal Govt Immunity
o The United States cannot be sued without its consent
o The 1946 FTCA makes the US liable “for injury or loss of
property, or personal injury or death caused by the
negligence or wrongful act or omission of any employee of
the government while acting within the scope of his office
or employment, under circumstances where the US, if a
private person, would be liable to the claimant in
accordance with the law of the place where the act or
omissions occurred”
 Essentially, the US is similarly liable as private
employers would be in an identical fact pattern
o Exceptions
 Feres doctrine
 Military personnel may not sue for injuries
incident to service
 Interpreted broadly, to preclude a med mal
case against a military doctor where an
active duty service woman was giving birth
 Rationales:
o The relationship is distinctly federal
o The Veteran’s Benefits Act awards
‘no fault’ pensions to injured
servicemen
o Commanders need to be able to
make military decisions without
worrying about suit
 Discretionary function exception
 There is no duty of reasonable care for
discretionary functions
 Immunity from claims based on the exercise
or performance or the failure to exercise or
perform a discretionary function
  A discretionary act is any that involves
choice or judgment
 Where a statute, regulation, or policy
specifically prescribes the course of action,
there is no discretion – see also, South Bend
 The doctrine protects actions undertaken
based on public policy considerations
 Intentional tort exception
 This immunity is waived for intentional torts
committed by “investigative or law
enforcement officers”
 Other exceptions listed at p. 7
 State Govt Immunity
o Generally, the same as the federal govt immunities
 Local Govt Immunity
o Typically, liable up until the limit of their insurance
policies
o It can be hard to predict if government immunity will
obtain against certain claims, was the citizens owed a duty
greater and apart from the public at large
o Purchasing insurance provides relief to injured citizens
o This immunity only includes tort claims. It does not extend
to violations of constitutional rights or federal or state
statutory law
 Immunities Applicable to Govt Employees
o Federal employees cannot be sued if their employing
agency is liable under FTCA
o legislative, judicial, and prosecutorial immunity all exist to
prevent liability for lawful acts done in an official capacity
o Often, this protection is extended to child protective
services employees
 Family Immunities
 At common law, spouses couldn’t sue each other
 At common law, children couldn’t sue their parents
o Immunity still exists for ‘mere negligence’
o Oftentimes, this is only implicated where someone who has
injured a child impleads the parent as a codefendant for
negligence actions
 Intentional Torts
o Prima Facie Case
 Act
 An external manifestation of the actors will – 2R 2
 Volition is required - Involuntary reactions, acts done in sleep, and
use of the defendant’s body by a third party are not acts
o Reflexes, convulsions, epileptic attacks are not acts –
Polmatier
 o Muscular reaction is always an act unless the mind and will
have no share in it - Polmatier
 The fact that one acts in response to irresistible pressure (puts
one’s hand down to prevent falling) may make the act excusable,
but it is still volitional
 Consequences are not part of an act
 Intent
 Is defined by and limited to the consequences of the act
 Can be shown in two ways
o The defendant had the purpose or desire to cause the
consequences of his act
o The defendant knew with near certainty that the
consequences would follow from his act (throwing a bomb
into a two-person room to kill the one person; liable for
both)
 As the probability of the consequences falls, the intent becomes
recklessness and then negligence (causing injury without intent to
cause or near certainty of injury is only recklessness)
 Recklessness is aggravated negligence
 Willful misconduct often means conduct involving an intent to
cause harm
 Wanton misconduct is recklessness
 Parents may lose their immunity as they move up the spectrum of
fault.
 Causation
 Plaintiff must show the defendant’s act was the
o Legal (proximate) cause of her injuries – Is it fair to hold
the defendant responsible for the injuries?
o Factual (actual) cause of her injuries
 Injury
 Injury is an invasion of any legally protected right – legally
cognizable
 Harm denotes the loss or detriment in fact of any kind to a person
resulting from any cause – not legally cognizable
o Battery/Assault
 Hall v McBryde – Transferred Intent Rules
 **Battery is the intent to cause a harmful or offensive bodily
contact with the person of the other or a third person, or an
imminent apprehension of such contact, and a harmful or offensive
contact with the person of the other directly results
o Note: battery can be harmful or offensive
 Transferred intents – 2R 16
o An act done with the intent to create an offensive bodily
contact or apprehension of a harmful or offensive bodily
contact, which then causes bodily contacts, makes the actor
 liable to the other for battery, even though he did not intent
bodily harm
 Shooting to cause apprehension, if it results in
bodily harm, is still battery
o An act done with the intention of harming, offending, or
creating apprehension of either to a third person, but which
harms defendant, makes the actor liable to the defendant as
though he meant to harm defendant
 Shooting at the car, if he hits a neighbor, is battery
 Horton v Reaves – Intentional Tort Intent for Children; Dual Intent
Requirement
 *Children may be held liable for intentional torts before negligence
 *Parents may be liable for a child’s torts, but are not necessarily
liable because of the parent-child relationship. Parents may be
liable if:
o The child had a propensity for committing the particular
abuse which caused the injury
o The parent knew of the child’s propensity
o The parent failed to restrain the child from the particular
type of wrong which caused the injury
 Some jurisdictions hold that children under a certain age cannot
form the requisite intent for intentional torts.
 This court rules that the intent must include an appreciation for the
natural consequences of the intentional actions; the infant need not
intend the consequences
o This appreciation is assumed for adults
 Parental immunity insulates the parent (the deceased’s mother)
from negligence claims – must show willful and wanton
misconduct
 Note: children can be negligent at a younger age than when they
can commit intentional torts
 Polmatier v Russ – Intent for Insane Persons
 Battery and assault can only be committed against a person
 Insane persons are liable for their intentional torts - 2R 283B
 Policy reasons:
o Where a harm arises between two innocents, the person
who occasioned it must bear the cost
o He must be liable to incentivize his family to restrain him
o Defendants can’t feign insanity to escape liability
o If he is not liable, we cannot redress injuries
o If an insane person ever had the wealth, it would be unjust
not to compensate the plaintiff there
 *It is unnecessary that a defendant’s reasons for forming an intent
are rational. He can invade the legally protected interests of
another without a rational reason.
  As long as an insane person intends to cause harmful or offensive
contact, or apprehension of either, he is liable for battery
 White v Muniz – Intent for Alzheimer’s Patients; Dual Intent Requirement
 Dual intents must be proven to prove a battery – the defendant
must both intend to contact the plaintiff, and intend that that
contact be harmful or offensive
 *Some jurisdictions are single intent jurisdictions, “the actor
intends to cause a contact”
 The additional requirement of appreciation is extended from
children to person’s suffering from Alzheimer’s: NOT the elderly
generally
 Wishnatsky v Huey – Act - Offensive Contact
 Bodily contact is offensive if it offends a reasonable sense of
personal dignity
 To offend a “reasonable sense of personal dignity”, the contact
must be such that it would offend the ordinary person, who is not
unduly sensitive
 Offensive bodily contact is unwarranted by the social usages
prevalent at the time and place at which it is inflicted
 Rude and abrupt conduct is NOT offensive, not battery
 Momentary, direct, and incidental contact is NOT offensive, not
battery
 Cohen v Smith – Act - Offensive Contact – “undue sensitivity”
 Causing actual physical harm is not an element of battery
 The male nurse’s touching knowingly violated the plaintiff’s
privacy standards and religious beliefs by touching her when he
knew he did not have her consent
 In the medical setting, professionals generally have implicit
consent to operate
 Knowing interference with the right of determination is battery
o The right of determination is the right to refuse medical
treatment, even if that refusal makes death more likely
 Dickens v Puryear
 Battery protects a person’s interest in being free from intentional
and unpermitted contact with one’s person
 Assault protects a person’s interest in being free from
apprehension of a harmful or offensive contact with one’s person
 Assault – an overt act or attempt, or the unequivocal appearance of
an attempt, with force and violence, to do some immediate
physical injury to the person of another … The display of force or
menace of violence must be such to cause the reasonable
apprehension of immediate bodily harm
 A mere threat, unaccompanied by an offer or attempt to show
violence is not an assault
  IIED – extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is liable for such
emotional distress, and if bodily harm to the other results from it,
for such bodily harm
 Generally, conditional threats are not imminent
 Battery: the beatings and handcuffing
 Assault: the treats of castration and death
 IIED: the threat that if defendant didn’t leave the state he would be
killed at un indeterminate time in the future
o IIED
 Jones v Clinton
 *4 Prongs for a Showing of IIED (Intent, Conduct, Causation,
Severity)
o Defendant intended to inflict emotional distress, or knew,
or should have known that emotional distress was the likely
result of his conduct
o The conduct was extreme and outrageous and utterly
intolerable in a civilized community
o The defendant’s conduct was the cause of plaintiff’s
distress
o Plaintiff’s emotional distress was so severe in nature that
no reasonable person could have been expected to endure it
 “extreme and outrageous conduct” is judged by:
o The nature of the conduct
o The period of time over which it took place
o The plaintiff and defendant’s relationship
o Defendant’s knowledge that the plaintiff is particularly
susceptible to emotional distress
o “Disgusting and totally improper conduct” does not meet
this bar
 IIED was found where an older cousin used drugs and alcohol to
foist sex on a younger, minor cousin
 IIED is not present where a sexual advance is brief,
unaccompanied by threats, and abandoned at the first sign of
discomfort
 Plaintiff is unable to show severity, the fourth prong: she never
missed a day of work, never tried to switch jobs or switch
assignment at her current job, never saw a physician, never lodged
a complaint at work,
 Courts to not credit affidavits produced on an attorney’s advice,
and which are reactive to opposing council’s arguments instead of
proactive
o NOTE: IIED and Fraud are intentional torts that can be proven with
recklessness
o Fraud (Intentional or Fraudulent Misrepresentation) – Davis v McGuigan
 4 Part Case
  Act – a factual, false, material misrepresentation
 Intent – defendant made the representation recklessly, with
knowledge of its falsity, or without belief that it was true
 Reasonable Reliance
 Damaged by Relying on the Representation
 Opinion or Fact?
 The report states that it is an opinion of value
 Representations of market price or market value can support a
claim of fraud
 Restatement Second states that opinions can give rise to a fraud
claim
 A disinterested party’s statement is more likely to be the basis of
fraud than the same opinion from a seller, because the buyer is
more likely to trust the seller
 *An opinion of value can provide the fact in a fraud claim
 Recklessness
 A person is reckless when “the person is aware of, but consciously
disregards, a substantial and unjustifiable risk of such a nature that
its disregard constitutes a gross deviation from the standard of case
that an ordinary person would exercise under all the
circumstances”
 Evidence showing multiple appraisals, and conformance with
professional standards or industry norms cut against recklessness
 Evidence of a quick timeline, the appearance of the number being
close to a suggested number, failure to make as close a comparison
as possible, cut in favor of recklessness
 Reasonable Reliance
 Factors!
o Plaintiff’s sophistication and expertise in the subject matter
of the representation
o The parties relationship (familial? Fiduciary? Arm’s
length? Commercial?)
o Availability of relevant information
o Concealment of the misrepresentation
o Opportunity to discover the misrepresentation
o Which party initiated the transaction?
o The specificity of the misrepresentation
 One can reasonably rely on a representation made through a third
party (like a realtor speaking through a bank)
 In such a case, plaintiffs “must demonstrate that their reliance on
the original fraudulent misrepresentation would’ve been justified”
 A plaintiff must show three things
o They could have reasonably relied on the original
misrepresentation
 o The defrauding party knew or had reasons to believe that
the terms or substance of his misrepresentation could be
shared
o Defendant intended or had reason to expect that his
representation would influence plaintiff’s conduct
o False Imprisonment – Cruz v Central Iowa Hospital Corp
 2 element PF case
 Detention or restraint against a person’s will
 Unlawfulness of the detention or restraint
o Physical injury is NOT an element
 Consent is an affirmative defense, because it negates the first element
 Consent may be present even if it is not affirmatively given
 “even when the person concerned does not in fact agree to the
conduct of the other, his words or acts or even his inaction may
manifest a consent”
 When plaintiffs are not conscious, their next of kin may
offer/withhold consent on their behalf
 Harm from the confinement is a three part test
 Actor intends to confine the other within boundaries he fixes
o Note, this can be as simple as asking someone to walk
around you
 His act directly or indirectly results in such confinement
 The other is either conscious of the confinement, or harmed by it
o The harm may be after the fact. If someone, realizing they
were restrained, becomes ill, liability obtains
o Trespass to Land (No Case)
 No need to prove intent – strict liability
 Classified as an intentional tort, even though it operates like strict liability.
This allows for the chance of both nominal and punitive damages. Punitive
damages are generally unavailable for strict liability torts
 Trespass abenesis – your entry was permitted, but once revoked you took
too long to leave
 Does not apply against invitees and licensees
o Trespass to Chattels (No Case)
 No need to prove intent – strict liability
 Any interference with movable personal property
 Trespass abenesis – your placing the item on the property was permitted,
but once that permission was revoked you took too long to remove it
o Conversion (No Case)
 The tort of theft
 Any unauthorized act which deprives an owner of his property
permanently or for an indefinite period of time
o Affirmative Defenses to Intentional Torts
 A defendant can either rebut one part of the PF case, or raise an
affirmative defense to the tort claim
 Plaintiff maintains the burden of proof on all parts of the PF case
 Defendant bears the burden of proof for an affirmative defense
 Discipline (Willis v State)
 Parents have a fundamental liberty interests in raising their
children. That liberty includes the rights of parents to use moderate
physical force to control behavior.
 Many jurisdictions legislatively codified a parental discipline
privilege
 The MPC provisions have two problems
o They do not demand that the force be reasonable
o The parent may use force, so long as it is for the purpose of
safeguarding or promoting the child’s welfare, unless the
force creates a substantial risk of death or excessive injuries
 Restatement view: a parent is privileged to apply such reasonable
force upon the child as he reasonably believes to be necessary for
its proper control, training, or education
o FACTORS! – not an exhaustive list!!
 Whether the actor is a parent
 The child’s age, sex, physical and mental condition
 The nature of the child’s offense, and the child’s
motive
 The child’s influence upon other children of the
same family or group
 Whether the force or confinement is reasonably
necessary and appropriate to compel obedience to a
proper command
 Whether the punishment is disproportionate to the
offense, unnecessarily degrading, or likely to cause
serious or permanent harm
o The court explicitly notes the child’s age, recidivism, that
the mom used progressively harsher punishment, and that
the injury did not linger
 To defeat an affirmative defense of parental immunity, the state
must either:
o Prove the force the parent used was unreasonable, or
o Prove the parent’s belief that such force was necessary to
control her child and prevent misconduct was unreasonable
 Dissent: This sets the bar too high. By forcing the state to prove
either that 1) the force was unreasonable, or 2) the parents’ belief
was unreasonable, makes it too difficult for the state to effectively
fight child abuse.
 Consent (Hellriegel v Tholl)
 Consent is effective where it is given:
o By one with the capacity to consent, or one authorized to
consent for him
o To the particular conduct, or substantially the same conduct
  Underage children, the mentally disabled, employees with respect
to workplace safety violations, the unconscious (Cruz), inmates in
relation to guards are all unable to give effective consent
 Consent may be actual or apparent. Both are legally effective.
 Consent must be given knowingly and voluntarily.
o Knowingly – Was the consent procured by fraud or
concealment is ineffective?
o Voluntarily – Was the consent procured under undue
pressure or duress? Duress generally only extends to
threatened physical violence, not threatened economic
harm
 The consent may be implied from the whole context of events
leading to the incident.
 The whole incident was good-natured fun between friends
 There is no indication that plaintiff did not want to participate
 One consenting to rough and tumble horseplay, accepts the risks of
incidental injuries
o One consenting to an informal boxing match, consents to
the injuries stemming from it
 Consent need not be explicit, can have been inferred by the
defendant
 *Restatement Third introduces lack of consent as an element in the
assault/battery
 Self-Defense
 Lane v Holloway (Proportionality)
o Ex turpi causa oritur non actio – mutually illegal actions
which result in injury may not be redressed in a court of
law
o Volenti non fit injuria – each of the participants to a fight
takes upon himself the risk of incidental injuries to himself.
He was drunk and much older; the defense does not apply
here.
o Proportionality matters – the severity of this blow removed
itself from the mutually illegal context, because the older
man had not consented to a fight in which such blows were
being exchanged
o The young man cannot claim self-defense, he is much
younger, less drunk, and fitter,
o The young man cannot claim provocation, the insult to a
third party is not sufficient
o Provocation may not reduce damages, but may relieve the
incident of its aggravated nature
 Brown v. Martin (Deadly Force)
o Deadly force – force likely to cause death or great bodily
harm
 o *A person cannot use deadly force unless he reasonably
believes he is threatened with serious bodily harm
o FACTORS! (also may be considered in an ordinary self-
defense case)
 The character and reputation of the attacker
 The attacker’s belligerence
 The difference in size and strength between the
parties
 The attacker’s overt threats of bodily harm
 The possibility of peaceful retreat
 Katko v Briney (Defense of Land)
o Spring guns are only permitted to prevent the commission
of violent felonies that endanger human life
o A party can use reasonable force to protect his property, but
may not use such means of force as will take human life or
inflict great bodily injury
o There is a higher value on human safety than on property
rights. The law does not allow the use of deadly force to
repel a threat to land or chattels unless there is also a threat
the defendant’s person justifying self-defense
o A landowner cannot do through devices what he could not
do if he were present
o A land owner may not arrange his property so as to
intentionally cause harm, where there is no threat to his
person or a third person
o Trespass against property not a dwelling does not empower
the owner to use deadly force to repeal the trespasser
 Some jurisdictions allow the use of deadly force to defend land
(not residence) according to the self-defense analysis and factors
from Brown, and the importance of the land to the owner
(Valuables, livelihood)
 Necessity
 Public – the public as a whole benefits from the cost imposed on a
singular party
 One is privileged to enter land in the possession of another if it is,
or if the actor reasonably believes it is, necessary for the purpose
of averting an immediate public disaster
o Surocco v. Geary (public necessity) – public, excused
trespass not requiring compensation (like the military
destroying a facility an advancing enemy may have been
able to coopt)
 The action must be taken, in good faith, under
apparent necessity, for the purpose of the public
benefit
 Does not need to be a public official, but this helps
the evidentiary showing of good faith
  The otherwise tortious conduct is justified by the
necessity
o Wegner v. Milwaukee Mutual (takings) – public taking
which benefitted the public at large, requiring just
compensation (like the military taking pepper from a
company, or like using eminent domain to lay down
railroads)
 Minnesota Constitution provides: private property
shall not be taken, destroyed, or damaged for public
use without just compensation
 SCOTUS: such laws bar government from forcing
someone to bear the entire cost of an action which
benefits the public as a whole
 This reasoning extends to police actions - Can the
use of police actions be described as a taking such
that the homeowner is entitled to ex post
compensation?
 Some courts read this narrowly, and only allow
compensation for ‘improvement for public use’
 Damages depend on the municipalities insurance
limit, the plaintiff cannot collect more than the
insurance cap
 Private – a private party benefits by imposing costs on another
private party and must pay compensation
o Rossi v Delduca
 Dogs bites are strict liability injuries. Unless the
dog bites a trespassing party, party who was teasing,
tormenting, or abusing it, or party was committing
another tort.
 One is privileged to trespass given it is necessary to
avoid potential serious harm to the trespasser or the
trespasser’s property
 This privilege also destroys the land owners’
immunity to tortuously act against such a
trespasser
 Dogs are OK because they do not rise to the
same level as the weapon in Katko, they
generally can’t do as much damage?
o Vincent v Lake Erie Transportation
 If the boat had caused the damages either before it
had been docked, or after its ropes had come untied,
the boatowners would not be liable
 *Compensation must be made when damage is done
or costs arise under circumstances denoting
necessity (a ship in a storm damaging a dock) (a
starving man must pay for stolen bread once he is
 able) (where one becomes ill on another’s property
he must pay for medications and lodging afforded to
him)
 This holding applies to property, does it also apply
to human life? Throwing someone out of a lifeboat
to ensure it doesn’t sink all occupants
 Negligence (Duty)
o One has a duty to others whenever one acts in a potentially harmful way
o Duty is an obligation, to which the law will give recognition and effect, to
conform to a particular standard of conduct toward another
o Duty is a question of law for the court to decide based on considerations of the
policy implications inherent in the imposition of the obligation across the
category of cases the claim represents
o A duty is owed to everyone
o Tort duties do not always line up with moral duties
o Default Duty Rule
 Applies in the typical negligence case where the defendant’s affirmative
actions are alleged to have risked harm. When individuals act in a way that
risks harm to others, they assume a legal obligation to others. This legal
obligation is duty.
 Palsgraf v LIRR
 “the risk perceived defines the duty to be obeyed”
 If an act appears harmless to the complainant through “the eye of
ordinary vigilance”, then an act done to another which may cause
harm does not create tort liability to this unforeseeable third party
who happens to be injured
 If anybody owes her a duty it is the pushed, not the pusher
o Imagine if in a crowd the man but been jostled, and
dropped the dynamite. The jostler would not be liable
 The reasonably foreseeable risk defines the duty
o One doesn’t need to foresee the particular accident, just the
possibility of one
 This does not abridge transferred intent; you foresaw the harm to
the primary party
 Here, there was no warning that the parcel was dangerous
 One is not negligent in relation to the plaintiff only because an
injury followed
 Dissent:
o We deal in terms of proximate cause, not of negligence
o Did you cause the harm? If so, the harm was foreseeable,
and you are liable, even if the injured party is generally
thought to be outside the radius of danger
o The act itself, not the intent of the actor is important
o Negligence obtains whenever an unreasonable act can
cause injury, whether or not it does. This is because the act
itself is the wrong, and it would be wrong whether or not
 someone gets hurt, and if someone gets hurt, negligence
can be charged. Negligence is a violation of a duty to the
public, not only to those you thought your act might injure.
o The question of liability still has to be adjudicated, even
after we determine defendant has this looser construction of
duty
 Barker v Philly
 Long description of the facts; this guy should’ve known children
might have been around
 “the extent of the injury or damage and the manner need not be
foreseen, it is only required that a reasonable person would foresee
that injury and damage could occur to the person or property of
another”
o Once you foresee some injury or damage to person or
property, you become liable for the full extent of that injury
or damage and the way those injuries arise, if another
would be reasonably expected to have foreseen the injury
o Does the foreseen injury to the man or his package in
Palsgraf create liability vis a vis the plaintiff?
 Would a person acting with the degree of care and caution that a
prudent or reasonably cautious man would have foreseen an injury
 Creating a duty this broadly has a massive deterrence effect
(obviously, proximate cause issues)
 AW v Lancaster County Schools (Third Restatement)
 Risk-Utility Test for tort duty
o The magnitude of the risk
o The relationship of the parties
o The nature of the attendant harm
o The opportunity and ability to exercise care
o The foreseeability of the proposed harm – THIS DROPS
OUT
o The policy interest in the proposed solution
o From Patton
 Foreseeability of harm to the plaintiff
 Degree of certainty plaintiff will suffer that injury
 The closeness of the defendant’s conduct and the
injury suffered
 Defendant’s moral blameworthiness
 The interest in preventing future harm
 The extent of the burden on the defendant
 The consequences to the community of imposing a
duty to exercise reasonable care on the defendant
 The availability cost and prevalence of insurance
for the risk involved
o From Aikens v Debow (p.236)
 Likelihood of injury
  Magnitude of the burden of guarding against it
 Consequences of placing the burden on defendant
 Foreseeability has no place in the duty analysis. Duty is a question
of law decided by the court. Foreseeability is fact-dependent, and
therefore should be left to juries, who decide if a breach occurred
 Duty is always the same: conform to the legal standard of
reasonable conduct in light of the apparent risk
 Did the conduct here satisfy the duty placed on individuals to
exercise the degree of care a reasonable person would exercise
under the same circumstances? Was there a breach?
 The school obviously owed AW a duty of reasonable care. The
important question for breach is: Did the defendant conduct
themselves reasonably in light of that duty?
 *AW’s reasoning is a little circular. It notes the magnitude of risk
and nature of the harm, and both of these determinations require
foresight.
 Case-by-Case Exceptions to the Default Duty Rule – Asking the Court for
a not existing exception
 Strauss v Con Edison
o Duty is not defined by foreseeability nor privity to contract
o Courts fix the orbit of duty to limit the legal losses of
wrongs to a controllable degree and to protect against
crushing exposure to liability
o The dissenter below believes this situation similar to
charges of negligence brought against an accounting firm
because the people in the building are a “specific, limited,
circumscribed class with a close relationship to Con Ed”
o We are unable, here, to both extend defendant’s duty to
cover specific foreseeable parties and contain liability to
manageable levels at the same time. Con Ed has millions of
these contracts!!
o To allow liability here would violate the court’s duty to
“define an orbit of duty that places controllable limits on
liability”
o Dissent
 There is a duty where the plaintiff’s interests are
entitled to legal protection against a defendant’s
conduct
 Defendant here has a mass distribution and could
pass on the cost of its liability by means of rates,
prices, taxes, insurance, reduced shareholder
returns,
 This ruling amounts to saying that the more persons
injured by a tortfeasor, the less responsibility for the
injuries
  We may still want to insulate them from liability,
but they should have to demonstrate the
imperativeness of that
o When do courts entertain these kinds of exceptions? – for
companies who by means of rates, prices, taxes, or
insurance are best bale to distribute to the public at large
the risks and losses, unless the liability might extend to an
unlimited number of unknown persons
o Other considerations: foreseeability of harm to the plaintiff,
degree of certainty that the plaintiff suffered the injury, the
closeness of the connection between the defendant’s
conduct and the injury suffered, the moral blame attached
the defendant’s conduct, the policy of preventing future
harm, the extent of the burden to the defendants and
consequences to the community of imposing a duty to
exercise care with resulting liability for breach, and the
availability, cost and prevalence of insurance for the risk
involved
o Cases cited within the case:
 Food Pageant – precludes Con Edison from
challenging that case’s finding of gross negligence
 Fish; Glanzer - Where A contracts with B, A may
still owe a duty to C or D
 Moch; Beck – Courts often forgive utilities’
liabilities to other potentially affected parties
outside their contracts
o Traditional Exceptions to Default Duty
 No Duty to Rescue, Warn, or Aid
 Policy Rationale
o Loss of Autonomy
 Consent of the governed – citizens legitimize their
government by freely consenting to it, but they
retain their individual liberty
 Harm principle – nonfeasance is not as
blameworthy as misfeasance
o Conflicts with Natural Law Principles
 Because it risks harm to the rescuer
o Religious and Moral Instincts will Galvanize Action
 Because religion promotes altruism, people will act
to rescue others without a legal obligation to do so
 Theobald v Dolcimascola
o A young man was killed playing Russian roulette
o None of the other teens present were participating, and as
such, they had no duty to stop the decedent
o Even if another teen had explained the rules to him, that
teen would not be liable
 o A teen encouraging him to continue would’ve been liable
o High bar of comparative negligence here
o There is no common-law duty to rescue, absent a special
relationship
o Where there is no duty, there is no liability
 Galanti v US
o King repeatedly advised Underhill of the needless danger
involved
o King made no attempt to contact or warn Galanti of the
danger, nor did he arrange protection for Underhill that
night
o The foreseeability of risk to another creates no duty to act
o There is no duty to warn or protect another person from a
foreseeable risk of harm simply because of one’s
knowledge of the danger
 Three Exceptions to this No Duty to Warn rule
 One has a duty to warn against danger they
have it any way created
 If Defendant failed to properly control a
foreseeably dangerous instrument
 Law enforcement may have this legal duty
to warn or protect individuals against danger
if they have voluntarily assumed such a duty
 Exceptions to the No Duty to Rescue, Warn, or Aid
o Volunteer Rescue (Hawkins v Houser)
 *When a person volunteers to help or asserts
themselves into a situation, they are required to do
so using reasonable care
 Defendants may have failed to exercise an ordinary
duty or care when calling for help
 Two kids were playing on a frozen lake and fell in
 The property owners placed a phone call to the
rescue squad, but sent them to a blocked entry road
to the property
 Note: defendants did nothing to conceal or increase
the danger/therefore, no attractive nuisance liability
 Policy: the rule exists because once you initiate
rescue, it precludes others from doing the same
 Policy: it disincentives initiating a rescue by anyone
 P.173-175 discussion of state Good Samaritan laws;
these generally provide more of an incentive to
rescue than the common law, because an attempting
rescuer is immune from suit
o Promissory Estoppel (Light v NIPSCO)
 *One who undertakes, gratuitously or for
consideration, to render services to another which
 he should recognize as necessary for the protection
of a third person or property is subject to liability
for harm to the third person or property resulting
from a failure to exercise reasonable care in the
undertaking if:
 The failure to exercise reasonable care
increases the harm, OR
 He has undertaken to perform a duty owed
by the other to the third person, OR
 The harm is suffered because of reliance of
the other or the third person upon the
undertaking
 NIPSCO failed to properly install plaintiff’s natural
gas
 NIPSCO told Light that they would connect it
properly before turning the gas on
 NIPSCO owes Light neither a general duty nor a
contract duty for the hookup, but they might have
assumed that duty through their statements.
 NIPSCO says there is no duty until we begin
performance of it; which we never did
 But it is clear that, where the promise is for
something “necessary for the protection of a third
party”, a duty obtains
 “A gratuitous promise, without more will not
impose a duty upon which tort liability may be
predicated”
 Some jurisdictions require the plaintiff to show that
the reliance was reasonable
 Some jurisdictions require that defendant had begun
to act on the promise for the reliance to be
reasonable
o Prior Conduct (Ponder v National Convoy and Trucking)
 *When actors’ prior conduct, even though it is not
tortious, creates a continuing risk of physical harm
characteristic of the conduct, the actor has a duty to
exercise reasonable care to prevent, minimize the
harm
 Once defendant’s truck became a danger, a duty
vested for him to exercise reasonable care to warn
oncoming traffic of his created peril
 He took no steps to reduce the risk to oncoming
traffic. He had a quarter hour to do so, and did not
 The prior conduct exception applies when the
defendant creates a known risk and takes no (or at
 least not all) efforts to mitigate it over some
appreciable time horizon
 Is he still liable if he tries his hardest, but can’t stop
the collision? No, because he wasn’t being
negligent, and the duty is to exercise reasonable
care to prevent or minimize the harm
 Bar tenders can be similarly liable for overserving
o Special Relationships – Generally (Patton v USA Rugby)
 Can occur in three ways
 Statute or rule
 Contractual or Private Relationship
 Indirectly or impliedly by the relationship
between the tortfeasor and third party, when
o The inherent nature of the parties is
such
o By one party undertaking to protect
or assist the other, such that it
induces reliance of the other party
 *Requires an element of
dependence
 Traditional special relationships which vest
a duty to protect against unreasonable risk of
physical harm – where the person expects
some kind of safety/protection and therefore
cedes the responsibility to care for self
o Common carriers (think, public
accommodations)
o Innkeepers
o Possessor of land who holds it open
to the public is under a similar duty
to members of the public who enter
in response to his invitation
o A custodian required by law to take
or who voluntarily takes the custody
of another under circumstances such
as to deprive the other of his normal
opportunities for protection is under
a similar duty to the other
o From p. 190 (Theobald)
 A custodian with a superior
ability to protect the other
 An employer to employees
who do inherently dangerous
work or who are injured at
work
 A school to its students
  A landlord to its tenants
 Police-arrestee
 Physician-patient
 Captain-drowning seaman
 ^not exhaustive: it must be shown that
defendant affirmatively acted to protect the
injured party or specific groups of
individuals, thereby inducing special
reliance by an individual as to the
defendant’s conduct
 *Did plaintiff entrust himself to the control
and protection of the defendant at a
consequent loss of control and protection to
himself? If so, maybe a special relationship
 Relatedly, adults have an appreciation of the risk of
an approaching thunderstorm
o Special Relationships – Property Owner to Visitors
(Trammel Crow)
 **One who controls the premises has a duty to
protect other from third-party criminal acts if he
knows or has reason to know of an unreasonable
and foreseeable risk of harm to the invitee
 Majority:
 Crime is pervasive and random
 Foreseeability is established through the
evidence of specific crimes on or near the
premises
 203 crimes, but only ten violent crimes, all
robberies, are considered as relevant for
foreseeability analysis
 5 Factor test - Was the kind of crime
insufficiently frequent or similar to make it
foreseeable?
o Proximity – not disputed, on the
owned property
o Publicity – not disputed, TC knew
about the crimes
o Recency and frequency – many acts
in a shorter time make the act more
foreseeable,
o Similarity – fine distinctions can
effectively distinguish the crime,
make it unforeseeable
 Policy: the foreseeablility requirement
protects owners from liability of crimes they
 could not reasonably be expected to foresee
or prevent
 Concurrence:
 The attack was foreseeable, but it was not
feasible or desirable to prevent it
 Property owners are only liable when the
risk of attack is foreseeable and
unreasonable
 *Risk must be considered with likelihood of
injury and the consequences of placing the
burden on the defendant
 Foreseeability analysis alone denies
compensation to the first victim, does not
consider the costs to the property owner of
preventing risks, and does not compensate
for foreseeable crimes without predecessors
 The foreseeability of harm must be balanced
against the duty imposed to protect visitors
 The cost in both the owner’s expense and
oppressive climate would be prohibitive
o Special Relationships – Doctor to Third Parties Threatened
by the Patient (Shea v Caritas Carney Hospital)
 Medical professionals have no duty to take
reasonable precaution to warn or protect a potential
victim of said professional’s patient unless (NEED
ALL THREE PARTS)
 The patient has a history of physical
violence which is known the medical
professional,
o No requirement that it must have
been previously directed against the
contemplated victim
 The professional had a reasonable basis to
believe that there is a clear and present
danger the patient will attempt to kill or
inflict serious bodily harm upon
o None of the evidence provides that
he represented a clear and present
danger
 A reasonably identified victim
o A victim capable of being identified
o Some jurisdictions have a reasonably
identifiable victim – a victim the
professional has all the information
and knowledge necessary to identify
without any additional investigation
  If the three above prongs are all met, the defendant
will be liable if he failed to take “reasonable
precautions”
 Applies also to the govt if parolees commit a crime
o Special Relationships – Government Entities to Particular
Citizens (Mullin v South Bend)
 The public duty doctrine shields municipalities and
their employees from liability associated with
providing public services – it bars lawsuits seeking
to prevent crime and otherwise protect against
injury in the absence of a special relationship which
imposes a special legal duty
 Immunity for discretionary functions encompasses
the notion that certain types of decisions made by
the legislature and executive branches should not be
subject to judicial review because of the separation
of powers doctrine, because litigation might have
chilling effect
 Whether a govt action is a discretionary function is
a question of law
 Planning/Operation test
 Where actions, even if those actions involve
an exercise of judgment are taken in accord
with pre-determined (not discretionary)
policies, they are merely operational
 Where the govt’s duty is owed to the public at large,
there is no liability for negligence
 At some point in responding to an
emergency, this public duty turns into a
private duty to the individual in trouble
 P’s suggested test - A foreseeable plaintiff, with a
foreseeable injury, standing alone, does not
establish a govt duty
 Cuffy test
 The city assumes a duty by promise or
action
 The city know inaction could lead to harm
 There has been direct contact bt the city and
the injured person
 The injured party justifiably relies on the
city’s promise
 *reliance is essential, foreseeability alone is
totally insufficient, because otherwise there
is no connection bt the city’s duty and the
plaintiff’s injury
 Jordan test - *This is the adopted test
  An explicit assurance by the municipality,
through promise or action, that it would act
on behalf of the injured party
 Knowledge on the part of the municipality
that inaction could lead to harm
 Justifiable and detrimental reliance by the
injured party on the municipality’s
affirmative undertaking
 *No direct contact is required
o It unfair to assume someone in an
emergency situation has to capacity
to make contact with the city
o While it is true that there can be no
reliance on the city’s promise
without direct contact, this element is
addressed by the need for
detrimental reliance
 Two requirements to balance: foreseeable harm to
plaintiff, and the govt must have induced
detrimental reliance
 Concurrence:
 The courts will find a duty where, in
general, reasonable persons would recognize
it and agree it exists
 Negligent Infliction of Emotional Distress
 Assumes the plaintiff has suffered no physical injury or property
damage
 NOTE: The law is skeptical of claims for IIED and NIED because
of the risk of compensating undeserving plaintiffs (and thereby
sanctioning legally blameless defendants), of increased litigation
(court time, court costs, increased litigation liability to defendants).
 Johnson v Rodgers (Bystander Claims)
o There is a protected interest in mental tranquility; this
creates a duty to exercise ordinary care vis-à-vis another’s
mental health
o Impact Rule
 A plaintiff must sustain some physical impact or
injury which gives rise to the claimed emotional
distress
 Fallen out of favor
 Less suspicion of mental distress
 Concern over an increased case load is an
unconvincing bar to keep meritorious claims
out
  Arbitrary results – one struck by smoke
could recover, but a parent who saw a child
struck could not
o Zone-of-Danger
 Adopted in Restatement Second Section 313
 Where an actor unintentionally causes
emotional distress to another, he is subject to
liability if
o He should have realized that his
conduct involved an unreasonable
risk of causing the distress, otherwise
than by the harm of peril of a third
person
o He, from facts known to him, should
have realized that the distress, if it
were caused, might result in illness
or bodily harm
 The above does not obtain unless the
negligence of the actor has otherwise created
an unreasonable risk of bodily harm to the
plaintiff.
 Benefits: Objective standard. Similar factual cases
are decided similarly.
 Detriments: Indistinguishable injuries are not
uniformly compensable. Physical distance from the
incident is not a compelling distinction. Requires
physical harm to bystander.
o Foreseeability – the Dillon rule
 Where two family members watch a third struck by
a car and only the closer member has a claim, the
zone-of-danger rule’s reliance of physical distance
from the accident is hopelessly artificial
 The zone-of-danger rule draws upon the impact
rule. Once you move beyond impact, you must
move beyond zone-of-danger. The zone-of-danger
is set by the fear of impact!!
 Three factor test
 Whether the plaintiff was located near the
scene of the accident
 Whether the emotional trauma to plaintiff
was caused by actually witnessing the
accident
 Whether the plaintiff and victim were
closely related
o Pure Foreseeability – Hawaii
  Where serious emotional distress to a potential
plaintiff-bystander is the reasonably foreseeable
consequence of the defendant’s act, the defendant’s
conduct is the proximate cause of the plaintiff’s
mental injury, general tort principles impose
liability
o Is the distinction bt direct victim and bystander viable?
 Is there a duty owed to the bystander, or only the
primary victim?
 The bystander is not a direct victim, but may still
suffer from his connection to the direct victim’s
injury
 In car/pedestrian situations, only the primary victim
has a cause of action for emotional trauma.
Recovery by the secondary party is based on a
theory of secondary viability
 In zone-of-danger jurisdictions, there was a duty
owed to both parties, therefore, both may sue.
Persons further away were owed no duty, and
cannot make out a PF case.
o Many courts demand a physical manifestation of the
emotional injury.
 These courts are worried about a flood of litigation
and compensating undeserving victims
 Courts and juries will determine which
victims are worthy of recovering
 But many courts are beginning to treat physical
manifestation of distress as a sign of the degree of
emotional injury. There courts allow suit in the
absence of physical symptoms.
o Nowhere bars recovery for the negligent infliction of
emotional distress
o Holding:
 One may recover under either the impact or zone-
of-danger rules
 But courts are encouraged to use a Dillon analysis.
An inability to meet the zone-of-danger and impact
rules should not bar a worthy plaintiff from
collecting
o Some commentators believe the law should focus more on
prevention than compensation. This aim is better served by
insurance.
 Harnicher v University of Utah Medical Center (Need to Show
Physical harm where the plaintiff is the primary party)
o Where the plaintiff is the primary party
  There must be a showing of mental illness or bodily
harm, or
 Miners who have inhaled asbestos cannot
necessarily show either
 Emotional distress must be so severe that a
normally constituted person would be unable to
cope with it
o Unsubstantiated opinions of emotional harm do not create a
triable issue of fact
o “the emotional distress must be so severe that a reasonable,
normally constituted person would be unable to cope”
o After a summary judgment motion, on advice from their
attorney, after disavowing such symptoms in their depos,
plaintiffs filed an affidavit contending that they had many
many physical manifestations of harm
o Exposure to the truth can never be a tort; destruction of a
fiction cannot constitute NIED
o Dissent
 There must be some claim where the defendant
encouraged plaintiffs to pursue a cause of action
and then failed to deliver what they told plaintiffs
they would
 Plaintiffs would be very differently situated had the
hospital acted appropriately
 Mental distress can be shown by the very symptoms
that the plaintiffs set out in their affidavit
 Just because they were not aware of their disease
does not mean they aren’t suffering from it – there
is nothing inconsistent about a medical professional
offering testimony on their behalf which they
themselves did not identify
o Isnt there a causation problem anyway? – yes, the plaintiffs
are unduly sensitive; but for the sickness, they never
would’ve discovered the kids weren’t theirs
 Negligent Infliction of Stand Alone Economic Harm --- overlap with
proximate cause!!
 Assumes the plaintiff has suffered no physical injury or property
damage
 Courts generally don’t feel a need to compensate someone who is
not a party to a contract or another special relationship who
incurs these kinds of damages
 Aikens v Debow
o Expansion of duty to include economic interests exposes
parties to liability of an indeterminate amount for an
indeterminate time to an indeterminant class
 o Legal liability does not always extend to all foreseeable
consequences of an accident
o *Routine reliance may prove to be a exception to the
general rule, also suffering harm to a public right in great
enough degree (both in fishermen cases)
o SCOTUS: a tort to the person or property of one does not
make the tortfeasor liable to another because the injured
party was under a contract with the other unknown to the
tortfeasor
o Interference with the ability to contract with third persons
is not cognizable injury (a campground is damaged, can
recover for property damage, but not lost income)
o This is often decided on proximate cause grounds (a barge
destroying the only bridge to an island)
o Even if economic damages are proven, they aren’t
recoverable
o Exceptions: if the hotel had owned the bridge (the hotel
would be able to collect property damage to the bridge, and
present a case of lost profits), contractual relationship with
the alleged wrongdoer
o Actual Exceptions – special relationship:
 Defendant is liable for damages proximately
caused, and must have knowledge of or reason to
know the consequences of the tortious conduct to
the people injured and the nature of the likely
damages
 Defendants owe a duty of preventing economic
damages to an identifiable class who defendant
knows or has reason to know may suffer damages
from the conduct
 Defendants were physically close, knew
what plaintiffs did, this occupation was
particularly vulnerable to foreseeable losses
from the accident, defendants knew of the
potentially tortious conduct, and had
planned to evacuate plaintiffs if such facts
ever immerged
 Liability and foreseeability stand in direct
proportion to each other
 Making property unusable (radioactive
waste) may constitute property damage such
that it allows for recovery of economic
losses
o Policy: avoids a deluge of litigation, no limiting principle,
avoid imposing crushing liability,
 Premises Liability
 What duty does a land owner owe to entrants?
 Three kinds of people can enter an owner’s land
o Invitees – people coming with an express or implied
invitation for mutual economic benefit with the owner,
owed a duty to fix known or knowable dangers and warn of
nonobvious dangers
o Liscencees – people coming onto land for their own
purposes with the owner’s consent, only liable for willful,
wanton, or reckless exposure to damages
o Trespassers – people entering without invitation or consent,
they are owed no negligence duty, includes children
 Can be hard to tell the difference
o Substantive rationale – the owner’s right to use the land
was valued more highly than the entrant’s life and limb
o Procedural rationale – took discretion away from juries that
were made up of commoners who were passing judgment
against landholders,
 Today
o Status has become less conspicuous and life more valuable
o An invitee is either
 Mutual economic benefit, or
 Invited
o Licensees who are social guests still take the land as they
find it
o Trespassers were also treated with more care
o Only duty is unknown trespassers is do abstain from
intentional torts
o Known, constant, and expected trespassers are treated as
licensees, you must refrain from willful and wanton injury
and recklessness
o Children are protected by the attractive nuisance doctrine
if 1) the condition is artificial 2) the condition exists where
the owners knows or has reason to know children are likely
to trespass 3) the owners (has reason to know or) knows
and (has reason to realize or) realizes, 4) children don’t
recognize the risk inherent in the condition 5) the burden of
eliminating the danger is slight compared to the risk to
children 6) the owner fails to exercise reasonable care to
protect the children
 Attractive nuisance obtains balances the child’s
safety against the right of landowners to use their
property as they wish. NOT strict liability, but a
duty of ordinary care
o Note: someone rescuing a child is a volunteer rescuer if the
D violates the attractive nuisance doctrine
 Duty owed to tenants
  Common Law
o Landlord is not liable except in common areas, hidden
defect known to landlord, negligent repair or maintenance,
premises leased for public use
o Parties can contract out of these
 Rowland – (Cal. Supreme Court) reasonable care under the
circumstances for all visitors
o We value the tenant’s wellbeing more than we used to, and
the owner’s control of land less so
o The concern that juries will favor tenants is not
determinative; can be curbed with instructions
o It is easy to impose this duty
o People’s statuses can change, even during a single visit
 Three Jurisdictional Options about visitors
o Keep the 3 old categories
o Merge licensee and trespasser
o Merge all categories
 Negligence (Breach)
o The standard of breach is always one of reasonable care in the circumstances
 This standard never changes. Case law fleshes out what the circumstances
are
o Breach is a mixed question of fact and law
o Breach occurs vis-à-vis one other person
o While you must prove a subjective intent in intentional torts, the standard here is
always objective; the reasonable man, not the particular defendant
o The Standard of Care for Adults
 Vaughn v Menlove
 Defendant owes “the care which a prudent man would take”
 Holmes: The Common Law
 The jury decides if the defendant acted with the conduct, and
therefore the blameworthiness, of a prudent man
 The law does not account for temperament, education, intellect, or
any other internal character
 The price of living in civil society is a sacrifice of your internal
characteristics in order, your neighbors demand you come up to a
certain level.
 Physical defects, which all can recognize, may be entitled to
exceptions; blindness, infancy
 The standard must be fixed. We’ve found a way to fix it to the
jury, instead of having them guess each time what the particular
defendant’s standard of care should be
 Restatement (Third) of Torts: Liability for Physical and Emotional Harm –
Knowledge and Skills
 Expertise is considered in breach – “under the circumstances”
 Any kind of knowledge (the pot hole at the bottom of a hill), may
be considered
  Jury is already thinking about this expertise when they hear the
case
 Easy cases
o The actor, maybe an electrician, has a clear obligation to
acquire special knowledge and special skills that relate to a
dangerous activity
o An actor who has made representations as a particular set
of skills, which the plaintiff relied on to enter into the
relationship
o In an economic relationship, the plaintiff may be paying for
defendant’s expertise
 Hard cases
o Where two skiers collide, that one is an expert is only
incidental to the accident
o Disincentive to acquire expertise
 Objective and Subjective Standards of the Reasonable Person Standard
 Objective
o The standard of care of the reasonable person
 Subjective
o What counts as reasonable care will vary with the risks
presented
o “in the circumstances”
 McCall v Wilder – “loss of capacity” / “sudden emergency doctrine”
 *Here, a loss of capacity created a sudden emergency**
 Loss of capacity – the operation of a motor vehicle is not ordinarily
chargeable with negligence because he becomes suddenly stricken
by a fainting spell or loses consciousness from an unforeseen
cause, and is unable to control the vehicle
 Loss of capacity defense covers: loss of consciousness, dizziness,
temporary loss of vision, streak, heart attack, or seizure
 The defense is inappropriate if the driver was sufficiently aware of
facts which would cause a reasonable person to anticipate that his
or her driving would lead to an accident – if the accident was
foreseeable to the driver
 Three different approaches to foreseeability
o Any driver suffering from an affliction which causes
unconsciousness is liable as a matter of law
o Knowledge of any past attacks creates a jury question re
whether or not there was breach
o Past attacks are insufficient to provide for breach. In the
most extreme circumstances, some courts require
symptoms the same day.
o Policy
 You might consider the number of elderly people,
or the number of cars in general where you are
when picking between these
  Nonexclusive list of foreseeability factors are listed on p. 279
 Sudden Emergency Doctrine – persons confronted with sudden or
unexpected emergency which calls for immediate action is not
expected to exercise the same accuracy of judgment as one acting
under normal circumstances who has time for reflection and
thought beforehand. Under these circumstances a person is not
held to the same standard as if he was able to apply foresight to
reacting under the emergency circumstances
o The Standard of Care for Children
 Peterson v Taylor
 Rule of 7s
o 0-6 – as a matter of law, the actor is incapable of
negligence, the “tender years”
o 7-13 – the actor is presumed to be incapable of negligence,
but this presumption is rebuttable
o 14 and older – the actor is presumed to be capable of
negligence, but this presumption is rebuttable
 These presumptions made sense when plaintiff had to prove he was
not contrib
 Now, because defendant may raise contrib and must prove it, these
presumptions don’t make as much sense
o When a rebuttable presumption operates against the party
with the burden of proof, instructing on the jury
presumption may cause jury confusion
 A child’s capacity of negligence is a question of fact
 *A child must conform to the standard of care of a child of like
age, intelligence, and experience under like circumstances
 This is a two-part test
o What was this child’s capacity, given his age, intellect, and
experience, to perceive and avoid the particular risks
involved in this case?
o How would a reasonable child of like capacity have acted
under similar circumstances
 Shulman – The Standard of Care Required of Children
 All possible factors courts consider for children, p. 286
 “a child is held to the exercise of the degree of care which 1)
ordinary children of [whatever factors are used] would 2)
ordinarily exercise 3) under the circumstances”
 Policy: protect children from liability occasioned by their
immaturity
 Nuemann v Shlansky (Exception to the Child Standard of Care for Adult
Activities)
 *Children doing adult activities are held to the standard of the
reasonable man
 Danger: the very nature of certain activities makes them inherently
dangerous
  The court rejects licensing requirements as a sensible barometer of
what is and is not an adult activity – except in so far as it speaks to
the minor’s lack of experience
 Activities that take skill, discipline, practice, and dedication are
more likely to be adult activities
 *Enormous weight given to cultural differences in this area
 “activities which are normally undertaken only by adults and for
which adult qualifications are required
o The role of the legislature
 Negligence per se – negligence as a matter of law, violation of a
legislative enactment (statute, regulation, ordinance) establishes
negligence
 Such enactments reflect a consensus among experts about conduct
that is reasonable under the circumstances
 Courts allow this when 1) the enactment specifies particular
conduct beyond merely proving that reasonable care is required 2)
the plaintiff is a member of the class of people intended to protect
3) the resultant harm was that intended to be addressed
 Where negligence per se is established, neither side introduces
evidence; all plaintiff must do is prove a violation of the
enactment, that this violation caused his injury, and establish his
damages
 A defendant defeats breach only if he can show the facts involved
a situation making obeying the statute unreasonable, or an
emergency
 Enactments are presumptive evidence of duty, but such evidence is
rebuttable
 Proving a violation of the statute which caused the injury will
always gets a plaintiff to a jury, but the defendant can win there
 Sides will argue about what was or was not reasonable under the
circumstances
 Enactments are only evidence of what the standard of care might be
 Some jurisdictions allow statutes to set the duty and standard of
care
 Some allow regulations or ordinances to do so as well
 Sometimes, statutes are afforded “per se” weight, and other
enactments are used as evidence
o The role of the judge
 Decides cases of negligence per se and no duty
 Judges are used when reasonable minds can reach only one conclusion
 Judges might establish breach on recurrent fact patterns, less litigation
 Juries could give a negligence award where there were more precautions,
and deny one of specific facts where less precautions were awarded
 Judge’s decisions have precedential value
 Judge decisions of breach are favored where the conduct before the court
is likely to be repeated because: it reduces litigation costs, avoids different
 outcomes in apparently equal cases, provides further guidance to potential
litigants
 Judges take cases away in three circumstances: the evidence in the record
favors a party such that a judge would have to overturn an opposing
verdict (JNOV), a judge recognizes a recurrent fact pattern which is
consistently decided the same way, or the court believes there is only one
way the facts should turn out (Judgment as a matter of law)
 Judges can make decisions based on normative reasonableness, things that
a reasonable person would not consider; the jury may not consider that
someone has AIDS, or someone’s race
o The role of the jury
 Allows for juries to decide cases on their very specific facts
 Judges should only step in where identical facts are likely to arise
 Judges do not have the expertise to make such determinations
 Judge made determinations of negligence are vulnerable to technological
and cultural change
 Juries should be allowed to consider specific facts (cost of alternative
precautions, apparent dangerousness)
 Juries are utilized where reasonable minds could differ as to whether or
not the conduct lacked reasonable care
 Juries allow for 12 minds to consider a problem
 Juries channel the community’s values
 Jury decisions lack precedential value
o How plaintiffs prove a breach of the standard of care
 **plaintiffs must present a theory of alternative conduct to show that
something was breached – hire a better bargee, wait for the cones, have a
radio
 **some activities beneficial enough to society to allow a party to forgo
every safety precaution. For example, a car manufacturer could install all
the airbags but chooses not to do so
 US v Carroll Towing (BPL Formula)
 B<PL
 B = burden of adequate precaution
o B=0 where the law demands the precaution
o We determine burdens are acceptable all the time; how
many people will die to build this tunnel/bridge
 P = probability of tortious event
o Low probability events are good for defendants
o Given the heavy traffic, it was foreseeable that the ropes
could be untied
o This is where it litigation happens! Was L indicative of the
damage that would normally have occured
 L = gravity of the resulting injury
o The damages occurred
 Liability obtains where B is less than PL
 Haley v London Electricity
  Two ways to rule for defendant
o A blind person coming by is unforeseeable
o The cost of protecting blind people is too much greater than
it is to protect normal people
 But, he wins
o A measure of care appropriate to the inability or disability
of those who are immune or feeble in mind or body is due
from others who know or ought to anticipate the presence
of such persons within the scope and hazard of their
operations
 TJ Hooper (Business Custom)
 *In rare cases, you can have a theory of breach which attributes
negligence to the entire industry’s standard practices
 Two ships sank, essentially, because they didn’t have radios
 Radios were not the industry standard
 A jury, of course, can decide that the actual standard of care is
lower than industry standard in returning a verdict for defendants
 **Medicine gets an exception - gets to set its own binding industry
standard – the profession dictates “the degree of care and skill which is
expected of the average practitioner in the class to which defendant
belongs, acting in the same or similar circumstances”; if they exercise this
degree of care, they have not breached their duty
 Plaintiffs need a doctor willing to corroborate that there was a
breach of reasonable care under the circumstances
 Is it more arcane than other professionals? Aerospace engineering?
 It is in some instances more time sensitive
 Not an exact science; every patient/operation is unique, need to
allow for judgment calls; People don’t often sue their doctors,
juries don’t often find for doctors
 Protection against a deeply personal antipathy you might feel
against someone who maimed you
 Doctors have extraordinary social utility
 Who is an expert?
o 1) How expert must they be? – knowledge, skill,
experience, training, education
o 2) Must the expert be familiar with the defendant’s
locality? – traditionally, it was the locality rule, because a
doctor might not have all the resources of someone
practicing in a big city. It was hard to find someone to
testify from a reduced pool, and it was possible that the
practitioners set the bar too low
 This is less likely now because scholarship diffuses
the relevant standards of care
 Specialists and institutional providers are subject to
a national standard of care, per their national
accreditations
 o Expert testimony is unnecessary for clear medical error –
wrong side surgery, leaving a tool in a patient, something
that goes on an administrative checklist,
o 3) Must the expert have the defendant’s specialty? – Yes
 Harnish v. Children’s Hospital Medical (Negligence in Failing to Inform)
 “A physician owes his patient the duty to disclose in a reasonable
manner all significant medical information that the physician
possesses or reasonably should possess that is material to the
patient’s intelligent decision whether to undergo a proposed
procedure.”
o A physician should possess information possessed by the
average qualified physician of his specialty
o The extent to which he must share this information depends
on what information he should reasonably recognize is
material to the plaintiff’s decision
o Materiality is what is significant to the reasonable person,
in what the physician knows or should know about his
patients decision, would attach to the risks in deciding to
undergo the surgery
o Such information includes: the patient’s condition, the
nature and probability of risks, benefits reasonably
expected, ability of physician to predict results,
irreversibility, result of nontreatment, available alternatives,
 A patient has a right to forgo treatment if he decides it entails
intolerable risks; as a corollary, he requires knowledge of all
available options and the risks attendant to each
 Privilege of nondisclosure – physicians may refrain from sharing
information that would complicate the patient’s medical decision,
or render him unfit for treatment
 A patient must show that neither he nor another reasonable person
in similar circumstances would’ve undergone the procedure
 *Where there is no consent, the claim is in battery
 *Where consent is gotten because the patient was
under/misinformed, the claim is in negligence
 Res Ipsa Loquiter (When there is no evidence of breach)
 Bryne v Boadle
o Where there is a presumption of breach instead of accident,
a defendant must rebut a presumption of breach
o RIL – a plaintiff can get to the jury without appropriate
evidence of breach
 Once Upon a Rose
o Three part test
 There is no indication that plaintiff’s own voluntary
act or neglect contributed to the injury
 The instrument which caused the injury was in
defendant’s exclusive control
  The occurrence of the injury suggests negligence
o An expert is only required when knowledge of how the
instrument should work falls outside of common
knowledge
o An exploding tire, or medical instrument left in the body
after surgery are paradigmatic cases
o RIL creates a permissive presumption that certain facts are
reasonable grounds for the inference that if due care had
been exercised over the injuring instrument, the injury
would not have occurred.
o *The doctrine places the burden of producing evidence on
the party most likely to have it
 Negligence (Causation)
o Causation is a question of fact to be decided by juries: Did the breach cause the
plaintiff’s injury
o Causation has two components – cause-in-fact and proximate cause
o Cause-in-fact – a factual inquiry into the factual cause of a plaintiff’s injury; did
D significantly contribute to it
o Proximate cause (legal cause) – ensures that imposing liability on the defendant is
fair given the totality of the circumstances. Generally litigated where the liability
is out of line with foreseeable damages and where the damages were increased by
unexpected facts.
o Fedorczyk v Caribbean Cruise Lines
 *Causation in fact depends on whether an act or omission played a
material part in bringing about an event.
 An act or omission is not regarded as a cause in fact if the event would
have occurred without it
 Where there are multiple causes, the act or omission must be shown to
have been a substantial factor in causing the harm
 The plaintiff must introduce evidence of causation (this is the case for all
four factors of a negligence claim!)
 “The plaintiff must introduce evidence that it was more likely than not that
the negligent conduct of the defendant was a cause in fact of the injury.”
 If the injury would’ve occurred absent negligence, if other variables are
present, the plaintiff has not met this burden.
 Dissent: “If, as a matter of ordinary experience, a particular act or
omission might be expected to produce a particular result, and if that result
has in fact followed, the conclusion may be justified that the causal
relationship exists.”
 “A conclusion of causation is permissible where the injury which has in
fact occurred is precisely the sort of thing that proper care on the part of
the defendant would be intended to prevent”
o Restatement Third (26) – Conduct is a factual cause of harm when the harm
would not have occurred absent the harm
 A factual cause is any condition necessary for the outcome
 An act is a factual cause, if, in its absence, the outcome does not occur
  The existence of other causes does not preclude the possibility that a
certain action is a cause
 As long as the harm would not have occurred absent the conduct, the harm
is tortious
 Tortious conduct by an actor need be only one cause of plaintiff’s harm
 All causes must precede plaintiff’s harm, but need have no relationship to
each other
 When two causes interact to cause a harm, the harm is tortious. But when
they are alternatives, only one may be (Vaccine or past trauma may both
be factual causes of seizures).
 Condition – a cause necessary to the outcome which is unimportant for
legal reasons (plaintiff was born; plaintiff was driving to the grocery)
 Causation requires a counterfactual inquiry: What would’ve happened if
the actor had not engage in the tortious conduct?
 Plaintiff must prove by a preponderance of the evidence that it is more
likely than not that, if the defendant had not acted tortiously the plaintiff’s
harm would not have occurred
o Restatement Third (27): Multiple Sufficient Causes – When multiple acts occur,
all of those which are factual causes independently of each other under 26, each if
a factual cause of harm
 A cause is tortious when, even though it is not necessary for the outcome,
it would have been sufficient. For example, imagine two campers who
each start forest fires.
 A defendant whose actions would’ve caused the harm should not escape
liability merely because there was another sufficient cause
 It would be unjust to deny compensation to a plaintiff because there
happened to be two guilty parties
 Even if the other cause is innocent, the tortfeasor is liable, although,
maybe only for the proportion of the damage he himself caused.
 Defendant may prove an alternative, absolving cause of harm in two ways
 Whether the other forces were sufficient to cause harm
contemporaneously with the defendant’s tortious conduct
 Whether the alternative cause caused plaintiff’s harm instead of
defendant
 The fact that the actor’s conduct is not sufficient alone to cause the harm
does not defeat liability. The defendant is liable if his conduct in necessary
to a causal set which produced plaintiff’s injuries
 A court may ignore de minimis causes – causes whose contribution to the
damages ought to be addressed is legally insufficient
 Throwing a match on a forest fire
 A negligently constructed dam during a flood which would’ve
broken any dam
o Summers v Tice
 When a plaintiff sues all of multiple actors and proves that each engaged
in tortious conduct that exposed the plaintiff to a risk of harm and that the
tortious conduct of one or more of them caused plaintiff’s harm, but the
 plaintiff cannot reasonably be expected to prove which actor or actors
caused the harm, the burden of proof, including both production and
persuasion, on factual causation is shifted to the defendants
 Ignore the obvious contrib
 Joint and several liability is a thing most places now. You would not be
able to collect the entire amount from one of the hunters, only the 50%
that he was responsible for
 Joint tortfeasors used to be able to indemnify completely against each
other
o Lost Chance
 Traditionally, a tribunal of doctors determines whether or not there was
negligence. If there was, they will still bar the case if the plaintiff’s chance
of survival was less than 50%, because the negligence cant have caused
the injury.
 This is not a med mal case, no need to detain an expert, the jury can split
the difference
 The chance of living has value
 There is emotional value in hearing that you, or a loved one, has a
chance to live.
 You could get back to 100%
 It ensures a standard of care applies towards patients who are in
dire straights
 In lost chance, the jury fills in some of the gap in causation, like res ipsa
does for breach
 Hicks – defendant is liable for destroying a substantial possibility for
survival
 Restatement – Once plaintiff introduces evidence that defendant’s
negligent act or omission increased the risk of harm to a person in
plaintiff’s position, and the harm was suffered, it becomes a jury questions
as to whether or not the increased risk was a substantial factor in
producing the harm
 Without further evidence the fact finder is allowed to infer that the
increased risk was a proximate cause of injury so plaintiff can
recover where it was merely possible that defendant cause the
injury
 The injury is generally considered to be the ultimate result, in this
case, death
 Pure Loss of Chance – plaintiff may recover where it is more likely than
not that the defendant’s malpractice deprived the plaintiff of a better result
or recovery. The compensable injury is the loss of chance of a better result
o Proximate Cause
 A corrective element of negligence cases. It ensures fairness and avoids
injustice when a bizarre or unexpected injury occurs. Were the damages
foreseeable at the moment of breach?
 There are two points in the PF case where you can constrain liability: duty
and proximate cause. Duty is a question of law, and proximate cause is a
 question of fact. Duty is more useful when we are trying to protect an
entire class of factors from liability.
 Proximate cause is never a settled, legally binding result; Does imposing
liability make sense in any particular case
 Palsgraf – Andrew’s Toolbox
 Whether there was a natural and continuous sequence bt cause and
effects?
 Was the one a substantial factor in producing the other?
 Was there a direct connection between cause and effect, without
too many intervening causes?
 Is the effect of cause on result not too attenuated?
 Is the cause likely, in the usual judgment on mankind, to produce
the result?
 By the exercise of prudent foresight could the result be foreseen?
 Is the result too remote, in terms of time or space, from the cause?
 Williamson v Liptzin
 *The court is unwilling to relieve on campus health services of a
duty to patients. Instead, it determines that it would be unfair in
this case to impose liability for a shootout on the doctor.
 Elements of proximate cause: how long ago was the breach, how
far away did the breach occur, foreseeability, likelihood of the
resultant injury, whether the relationship is too attenuated to be
casual, whether there were intervening causes, whether the case
was a substantial factor in the injury, whether the injuries flowed in
a natural and continuous sequence from the cause
 A person can be liable for foreseeable risk factors even if they
aren’t liable for the manifestation those risk factors take
 *Proximate cause includes a B<PL analysis. Does the amount of
foreseeable harm justify the theory of alternate conduct?
 Restatement 29 – Risk standards and foreseeability standards
 An actor’s liability is limited to those harms that result from the
risks that made the actor’s conduct tortious, even if other risks are
plausible or foreseeable.
 Some courts use ‘no duty’ or foreseeable plaintiff rules, or
restrictions on time or geography to lower liability
 The harm suffered must be foreseeable harm of the breach
(defendant is not liable when someone holding a rifle for him
drops it on his foot)
o This makes sense! The harm is only a stray gunshot, he
isn’t liable for a dog attacking the rifle holder because of
the rifle, and he isn’t liable for lightening striking the rifle
holder from a clear sky
 Risk standards are better than foreseeability standards
 Facilitate more targeted and clearer analysis by focusing the
attention on the particular circumstances that exist at the toime of
the breach
  These particular circumstances may contain risks which are not
generally foreseeable (a storm is coming in a desert community,
which would make it unforeseeable. Or, the actor knew a storm
was coming, and might be expected to take greater precautions
than normal)
o Intervening Causes
 UTexas v Baker
 A superseding cause is one which interrupts or supersedes the
defendant’s own negligence
 If the act or omission alleged to be superseding should have been
anticipated at the time of the defendant’s negligence, than there is
no superseding cause
 An intervening cause which was foreseen or foreseeable does not
break the causal chain – Was defendant’s breach actively and
continuously operating during the interim?
 “A true superseding cause produces results that would not have
otherwise occurred, is an act or omission not brought into
operation by the original wrongful act of the defendant, and
operates entirely independent of the defendant’s allegedly
negligent act or omission.”
 6 factors weigh in favor of determining that a cause is superseding
o The harm brought about is different in kind than that which
the actor’s negligence would have effected
o The intervening cause can be inferred where the results of
the defendant’s negligence are extraordinary rather than
normal
o The intervening force operates independent of any situation
created by the defendant’s negligence
o The intervening cause is due to a third party’s act or
omission
o The intervening cause is the tortious act of a third party
o The degree of culpability of a third person who set into
motion the intervening cause with a wrongful act.
 Barry v Quality Steel
 The test of proximate cause is whether the defendant’s conduct is a
substantial factor in bringing about the plaintiff’s injuries
 Where there is comparative negligence, a defendant might not raise
superseding cause as a complete bar to liability, over introduce
such evidence to mitigate his allocation of the damages
 This is because the test relieves negligent defendants and gives an
under importance to temporal considerations
 Policy: it would be inconsistent to conclude that all parties pay in
proportion to their fault, and that some party’s negligence might be
superseded by another’s
 Policy: allowing superseding causes gives undue prominence to the
temporal order in which they occurred
  Common Examples
 Voluntary Intoxication
o Except for tram shops and social hosts
 Suicide
o Except if the mental devolution is traced entirely to
defendant’s acts
 Act of God
 Intentional tort
 Negligence (Injury and Damages)
o The same for intentional torts
o Damages are about PROOF; they flow from injuries
o Single Recovery Rule – a plaintiff can sue a defendant for a tort only once, the
damages award in that case must cover all the injury’s future
consequences/expenses
o Nominal damages – only for intentional torts, and only where the harm is only
dignitary, provide a basis for punitive damages, signals that a harm is legally
recognized as such, recognizes the plaintiff’s claim
o Punitive damages – serve to punish the defendant, specific deterrence, general
deterrence, prevent self-help
o Compensatory damages – awarded for intentional, negligence, and SL cases. Put
the plaintiff back in the position he or she occupied before the tort
o Property damage
 Two approaches
 Plaintiff can get the lost market value
 Plaintiff can get the cost of restoration
 Plaintiffs cannot choose to recover the cost of restoration when it is
much more expensive than the lost market value
 Plaintiffs may not recover for emotional distress or pain associated
with lost personal property with great sentimental value
o Personal injury
 Special damages – economic losses, most notably past and future wages,
and past and future medical care
 Out of pocket expenses – expenses necessitated by defendant’s
negligence, EX: past and future medical care, medications, home
alterations, health care services
 Lost wages and earning capacity – should consider are,
employment history, training, education, ability to work, and
opportunities for advancement
 General damages – noneconomic losses, pain and suffering, loss of
consortium, emotion distress, loss of enjoyment of life
 Tort reform happens here – fear of speculative claims
o Davis v Foremost Dairy (Special Damages)
 Past wages and services
 A plaintiff must prove what he would’ve been earning absent the
injury in order to recover the difference
  Proven with tax returns from the employer; must also introduce
evidence of fringe benefits
 A plaintiff may collect for household services only as long as they
were unable to complete the chores themselves
 Plaintiff may collect for benefits that did not accrue because of
missed work: vacation days, personal days, pension
 Future wages and services
 Lost earning capacity – courts consider: actuarial tables, physical
condition before and after the crash, inflation, and past work
record,
 If the plaintiff can return to the work he held before the tort, there
is no award for future wages
 Plaintiff can only collect where a housekeeper was actual utilized
or would’ve been necessary
 Plaintiff may not collect for household services he can complete
himself
 Jurisdictions use actuarial tables for predicting how much longer plaintiffs
are expected to live and work
 Some allow lawyers to speculate based on race, age, family
history, etc.
 Working life tables account for age and gender
 Collateral Source Rule – defendant’s liability is not offset by gifts,
insurance or other benefits a plaintiff happens to receive because of the
injury
 Some jurisdictions have modified the rule, and the plaintiff does
not collect for volunteer work given to them and insurance
payments
o This in unfair; defendants are benefiting from the plaintiff’s
situation
 Jury awards account for inflation and interest to discourage appeals by the
defendant
 Jury awards reflect not the plaintiff’s lost salary, but that amount after
taxes
o Meals v Ford (Noneconomic Damages)
 Awards must be grounded in the facts
 Necessarily some level of speculation; in some jurisdictions, the attorneys
cant propose numbers
 No jury award is valid until approved by the judge acting as 13th juror
 3 kinds
 Pain and suffering – mental discomfort as well as the wide array of
mental and emotional responses that accompany pain, like
suffering, anguish, fear, humiliation, grief, shame, or worry
 Permanent injury – any injury from which a party may not recover,
creation of inconvenience or loss of vigor, disfigurement, which
relates to earning capacity, pain, loss of physical function,
disability, or mental impairment
  Past and future loss of enjoyment of life – the inability to partake
in the activities common to much people
 If an award is not in the range of reasonableness, a court can increase a
legally insufficient award (additur), or lower a legally excessive award
(remittitur). Neither can “destroy a jury verdict.” The party can accept or
decline the judge’s offer, or they can accept and then appeal. The hope is
that these award corrections will curb appeals.
 4 things to remember when considering precedent:
 Published opinions do not include settlements
 Case must feature similar plaintiffs with similar injuries
 The awards must be adjusted for inflation
 Each case must ultimately be judged on its own facts
o Loss of consortium
 Generally a derivative claim brought when a spouse dies for loss of
companionship and conjugal relation
 States are beginning to recognize loss of consortium claims for parent-
child relationships
 Few states allow a sibling to bring the claim
o DiDonato v Wortman (Wrongful Death)
 *When the death of a person is caused by a wrongful act, neglect, or
default of another, such as would, if the injured person had lived, have
entitled him to an action for damages therefor, the person or corporation
that would have been so liable shall be liable to an action for damages
 The amount recovered in such action will be disposed as provided
in the Intestate Succession Act
 *Damages: expenses for care, treatment, and hospitalization incident to
the injury resulting in death, compensation for decedent’s pain and
suffering, the reasonable funeral expenses of the decedent, the present
monetary value of the decedent to the persons entitled to receive the
damages recovered, including but not limited to compensation for the loss
of the reasonably expected net income, services, protection, care, and
assistance of the decedent, whether voluntary or obligatory of the decedent
to the person entitled to the damages recover, society companionship,
comfort, guidance, kindly offices, and advice of the decedent to the person
entitled to the damages recovered, such punitive damages as the decedents
could have recovered had he survived, punitive damages for wrongfully
causing the death of the decedent through malicious, willful, wanton
injury, or gross negligence, nominal damages when the jury so finds
 A viable fetus is a child for purposes of the wrongful death statute. Such a
plaintiff may not recover purely speculative damages. Such an action is
parasitic on claims brought by another party under the same facts
 Wrongful death can be a negligent or intentional tort
 Wrongful death was invented by legislatures to correct a legal scheme
which incentivized killing someone you had injured, refused any damages
to third parties, and, because they generally didn’t live, refused to value
fetal/young life
 
One can recover lost income (after taxes and cost of living), medical and
funeral expenses, pain and suffering, assistance, companionship, comfort,
guidance, and advice. Also, one can recover punitive and nominal
damages.
 Nobody may recover for “mere speculation”
 Viable fetuses may not recover for mere speculation: lost income, loss of
companionship or advise,
 It may be possible to demonstrate pain and suffering
 Policy: wrongful death actions compensate the decedent’s estate and deter
harmful actions
 Some jurisdictions allow survival actions, claims that the decedent
would’ve been able to bring if he had lived
 It varies by jurisdiction if the decedent’s estate brings the claim, or if it is
parasitic
 Jurisdictions vary on whether the award from a suit goes to individual
claimants based on their relationship to the deceased, or to spouses and
children through intestate succession
o Campbell v State Farm (Punitive Damages)
 Punitive damages deter and punish, they serve a public function; also
deployed when the chance of detection is low, and an ordinary award
would not punish all the conduct
 States determine is which instances punitive damages are awarded, but not
whether or not they are excessive
 Commonly considered factors
 Defendant’s wealth, the nature of the alleged misconduct, the facts
and circumstances surrounding such conduct, the conduct’s effect
on the lives of plaintiff and others, the probability of future
recurrence, the parties’ relationship, and the compensatory
damages awarded
 A punitive damages award that has come up for review is reviewed
through three guideposts:
 Reprehensibleness
o Was the harm physical or economic?
o Did the conduct evidence an indifference to or reckless
regard of the health and safety of others?
o Was the plaintiff financial vulnerable?
o Was the conduct recidivistic or a lone instance?
o Was the harm the result of intentional malice, trickery, or
deceit; or merely accidental?
o Does the defendant’s conduct warrant punishment beyond
the compensatory damages?
o *Courts may consider conduct which did not bear on the
plaintiff; they may consider similar conduct that has
harmed other in-state residents; states may not consider
conduct from other states.
 The Disparity bt the harm affected and the damages
 o A higher ratio is more tolerable where the amount of
compensatory damages is low
o A high ratio is intolerable where the amount of
compensatory damages is already high
o Does the compensatory award seem sufficient?
o A 1-1 ratio is most applicable where a sizeable
compensatory award is paired with unremarkable conduct
 The disparity bt the punitive damages and other penalties
o Is there an applicable criminal statute?
o What is the greatest civil penalty?
 Punitive damages can easily be 100 times this
amount, but may not be 145k times
 Affirmative Defenses to Negligence
o Other defenses: duress, consent, statutes of limitation or repose, waiver, release,
qualified immunity, absolute immunity, sovereign immunity
o Contributory Negligence (Coleman)
 Why have CONTRIB? – plaintiff awards could stifle nascent industries, a
person should not be able to collect for their own wrongdoing, it
encourages self-responsibility, ensures plaintiffs don’t injure themselves in
an attempt to get a judgment (clean hands), very easy to administer the
rule
 What are the critiques of CONTRIB? – rejected in most states, bars all
recovery for partial and even primary fault, improperly grants a
blameworthy defendant a windfall
 Two primary exceptions to CONTRIB
 A plaintiff under 5 cannot be barred by CONTRIB
 The Last Clear Chance Doctrine – if the defendant could have
foreseen and has the chance to prevent the consequences of
plaintiff’s negligence (if a defendant loses here, the defendant is
entirely liable for 100% of the award)
 Others: wanton and willful defendants cannot raise it, strictly liable
defendants may not raise it, defendants who violated a statute
designed to protect plaintiffs may not raise it, intentional torts
o Comparative Negligence (Bradley)
 There are two kinds of Modified Comparative fault
 The plaintiff’s fault is less than the combined fault of all
defendants (does not collect at 50%)
 The plaintiff’s fault is not greater than the combined fault of all
defendants (collects at 50%)
 Pure comparative negligence – each party’s liability is commensurate with
each party’s fault, avoids line drawing exercises, avoids windfalls to either
party
 Juries calculate the damages and assign the percentage of blame, but a
judge makes the final calculation (don’t want the end award affecting the
jury’s decisions)
 Contrib is not a defense to an intentional tort
 
Critiques of pure comparative negligence
 Should a 95% at fault plaintiff really be allowed to recover
 It rewards the party with the greater damages, if the damages are
disproportionate enough, a 10% negligent plaintiff would lose
money suing a 90% negligent defendant
 Defendants may implead other defendants; unfair for the plaintiff to pick a
singular party
 Last Clear Chance – a legal doctrine available to plaintiffs accused of
CONTRIB. When the plaintiff is in peril and the defendant knows and has
time to act on this knowledge of the peril to avoid injury to the plaintiff,
the defendant is still liable
 In some jurisdictions, it applies if the defendant should have
known of the peril
 In some jurisdictions, it does not apply if the plaintiff could have
escaped the peril (clean hands)
o Assumption of the Risk
 An affirmative defense to negligence or strict liability
 An analog to consent in intentional torts
 Express Assumption of the Risk (LaFrenz)
 When a plaintiff makes an express statement that he is
volunteering to accept a known and understood risk, the plaintiff is
barred from recovering damages for an injury resulting from that
risk
 Null in instances where there is a disparity in bargaining power
 Can be written or oral, but it requires subjective agreement
between the parties
 Did the plaintiff knowingly and willingly assume the risk?, and
Did the plaintiff knowingly and willingly sign the release?
 Plaintiff knew the nature of the demolition derby, signed a paper
entitled “Waiver and Release from Liability and Indemnity
Agreement”, repeated said “this is a release” on each signature
block
 Exculpatory agreements – the parties may agree before an activity
that one is under no obligation of care for the benefit of the other,
and shall not be liable for the consequences of conduct which
would otherwise be negligent
 Exceptions to exculpatory agreements/when they are invalid
o When the Legislature has enacted a statute to the effect that
certain industries cannot use them
o When one party is at an obvious disadvantage in bargaining
power
 Presumption in favor of the weaker party; stronger
party must show that the terms were explained, and
voluntarily assented to
 o When the transaction affects the public interest – utility
companies, inns, common carriers, garagemen, parking
lots; Is the company considered a public good or necessity
o Any fault beyond negligence
 Implied assumption of the risk – when a risk arises from a condition on the
defendant’s property or the inherent nature of the defendant’s activity, and
plaintiff voluntarily consents to accept the voluntarily consents to accept a
danger of a known and appreciated risk, they may not sue that person for
not protecting them
 Primary Implied Assumption of the Risk (Coomer)
 Primary implied assumption of the risk – when a plaintiff, based on
his conduct and circumstances, implicitly assumes a known and
understood risk that was not created by defendant’s own
negligence.
 Is the risk an inherent part of the activity? Would a duty to prevent
the risk result in changes to the activity and a viewer’s experience
of it? Do ordinary negligence principles generate absurd results?
Can the risk be mitigated or eliminated without affecting the
activity?
 Question of law to be decided by the judge
o Set parameters on the duty owed by defendants to potential
plaintiffs
o Fair notice to defendants
o Equal results to plaintiffs
 Secondary Implied Assumption of the Risk (Herod)
 Secondary assumption of the risk – when a plaintiff unreasonably
consents to a known and understood risk brought about by
defendant’s negligence
 Tertiary assumption of the risk - when a plaintiff reasonably
consents to a known and understood risk brought about by
defendant’s negligence
 Assumption of the risk is a subjective test, based not on the
objective standard of the reasonable man, but on the plaintiff’s
personal knowledge
 Assumption of the risk is a three-part test
o Knowledge and appreciation by the injured party of an
unsafe condition
o A deliberate an voluntary choice on the part of the injured
party to expose his person to that danger
o Comparative fault and comparative responsibility
 Comparative fault – broadens the comparison beyond the parties’ relative
negligences to all fault-based actions (negligence, gross negligence,
willful and wanton misconduct, recklessness, and intentional torts)
 Comparative responsibility – a causation-based, rather than fault-based,
approach to the comparison which focuses both on the parties relative
 levels of fault (carelessness through intentionality) and on their relative
causal contributions; adopted by the Restatement Third
 Consider the deviation from the legal norm, the mental culpability,
and the other circumstance surrounding the conduct
 Strict Liability
o Three-part PF case: proof of the existence of a qualifying fact pattern, causation,
injury
o Courts decide which fact patterns qualify for strict liability
o Strict liability is applied where, even in the exercise of all reasonable care, there is
an unreasonable danger to third parties
o Contrib is not a defense
o Punitive damages may be available
o Animals
 Wild Animals
 Courts consider the class of animal, not the particular animal
 A wild animal is “an animal that is not kept by custom devoted to
the service of mankind at the time and in the place in which it is
kept”
 The determinative factor is custom, not dangerousness; elephants
is some places might not qualify
 Even domesticated wild animal might experience reversion to
primal tendencies; zoos and wild life preserves are strictly liable
 Restatement Third
o An owner or possessor of a wild animal is subject to strict
liability for physical harm caused by the wild animal
o A wild animal is an animal that belongs to a category of
animals that have not been generally domesticated and that
are likely, unless restrained, to cause personal injuries
 Domesticated Animals
 Courts care about the specific animals, not the class of animals to
which it is a member
 Natural and instinctive bites are not abnormal
 Test for domestic animals:
o Did the owner know or should have known that the animal
had a dangerous tendency abnormal to its class?
o Did that dangerous tendency cause the injury?
o Abnormally Dangerous Activities
 Saved for activities which necessarily cause or can cause serious injury
 Rylands is the birth of the ADA rule; the defendant in Rylands was
nonnegligent
 Rylands rule – “a person who for his own purposes bring on his lands and
collects and keep there anything likely to do mischief if it escapes, must
keep it in at his peril, and, if he does not do so, is answerable for all the
damages which is the natural consequence of its escape” Ex. Beasts,
water, filth, stenches
 Branch v Western Petroleum
  One who uses his land in an unnatural way and thereby causes a
dangerous condition or engages in an abnormal activity may be
strictly liable for injuries resulting from the condition or activity.
 Whether a condition or activity is abnormal depends on whether it
is unduly dangerous or inappropriate to the place where it is
maintained.
 Is it possible that SL begins before negligence ends? This give you
bizarre outcomes where a plaintiff is trying to show that defendant
is nonnegligent? “They did not exercise all reasonable care, but
even if they had, they might’ve harmed us because this is just
really had to do.”
 Policy: People should be free from intrusion on their own land. All
of an industry’s costs must be internalized by that industry.
 Bennet v Larson Co.
 Whether the risk is so unusual in terms of magnitude or because of
the surrounding circumstances as to justify strict liability for any
resultant harm, despite the use of all reasonable care
 Six-Factor Test to determine what is abnormally dangerous
o Existence of a high degree of harm to persons, land, or
chattels
o Likelihood that the harm will be significant
o *Inability to eliminate the risk by the exercise of reasonable
care
o Extent to which the activity is uncommon
 Rarely done, or few practitioners?
o Appropriateness of the activity to the place it was carried
out
o Extent to which its social utility outweighs its negative
effects
 The third factor is dispositive in some jurisdictions
and the most important in others
 SL only begins where negligence liability is
ineffective
 First Restatement emphasized dangerousness, not custom
 Second restatement is the factors test
 Designation as an abnormally dangerous activity is a decision for
the court, it could shutter an industry
o Fair notice, equal results, less litigation
 Each industry must independently litigate its case up to the
jurisdictions highest court
 Restatement Third – focus on physical harm, assumes reasonable
care is exercised by all actors, common usage
o Defective Products
 Three kinds – design, manufacture, warning
 Early American law
 Caveat emptor
 o Buyer beware, sellers were not responsible for product
defects, buyers bore the risk of product related injuries
o Policy decision to protect free enterprise and nascent
industries
o Defeated by the 1906 Uniform Sales Act which created an
implied warranty of obligation
 Privity
o Products defects were contract claims, not tort claims
o Manufacturers needed to be in a contractual relationship
with the buyer, which was no longer feasible after mass
production and industrialization
o Defeated by Cardozo; MacPherson v Buick Motors
 A negligence standard immerged, which plaintiffs generally could
not get sufficient evidence to prove their cases
 Modern American law
 1944 - Escola v Coca Cola – allowed a plaintiff verdict on a res
ipsa basis
 1963 – Greenman v Yuba Power Products – established strict
liability for products
 1965 – codified in the Restatement Second
 The liability crisis
 More suits are brought, a greater share of suits are product liability,
average and median awards rise, insurance premiums rise
 A Period of Reform
 Business groups complain about
o Nuisance suits by opportunistic customers and the plaintiffs
bar
o Burdensome litigation liability costs and insurance rates
o State variations increase the costs of doing business in
many states; disadvantage businesses based on the accident
of location
 1998 – design and warnings are adjudicated in negligence
 States begin passing reforms in the hope that business friendly
environments would attract companies, create jobs, and strengthen
their economies
o Current Reforms
 All focus on lowering the potential jury award, all working to make it even
harder to get a lawyer!!
 Statutes of Repose
 Traditionally, the statutes of limitation were augmented with a
“discovery” rule; they didn’t begin to toll until the plaintiff
discovered the injury
 Is it fair to bring strict liability suits 20-30 years after the product
has been cancelled?
 Begin to run either at sale, or when the product is brought to
market
  A statute of repose can expire and preclude a lawsuit before an
injury is discovered
 Reforms to Product-Seller Liability
 Eliminate strict liability for wholesalers, distributors, and retailors;
they can now only be sued for their own negligence or breach of
warranty
 Reforms to Joint and Several Liability
 Traditionally, a plaintiff could recover the whole amount of the
injury from any of the parties, who then sought to recover from the
codefendants
 Sometimes, a minimally negligent party paid the entire cost, and
indigent tortfeasors paid nothing
 Now, a defendant may only be sued for their contribution
 Reforms to Collateral Source Rule
 Promotes deterrence, but allows plaintiffs to recover twice
 Subrogation is expensive to sift through
 Noneconomic damages caps
 Both punitive and noneconomic damages are capped
 Noneconomic damages are a deterrent, force the tortfeasor to
realize the full cost of behavior, even if the damage is
nonpecuniary
 However, they make it harder to settle, increase insurance
premiums, curb innovation in industry, push the cost into the
market price
 Punitive damages cap
 Necessary to deter particularly egregious or undetachable behavior
 Comparative negligence
 Defendant’s damages are reduced by the amount of plaintiff’s
negligence
 Other
 Patent danger rule – manufacturers are not strictly liable for
dangerous aspects of products which are obvious to reasonable
people
 Safety measures are judged by what was available when the
product was developed
 Federal reforms
 Different rules in every state increase costs
 Ex. Airlines and airline part markers have an 18 year statute of
repose
 Ex. Smallpox vaccine developers and distributors receive
protections