Christina Reyes - Prof.

Butter - Fall 2009

Torts Outline:

Intro:
ALI- American Law Institute:

• Restatement(way to summarize complicated common law

• Some have more impact then others

• Courts are under no obligation to follow restatements and sometimes reject them entirely.

L Case(liability)- court decides the issue raised in favor of P and against D. But D is not always
held liable for damages
NL Case(no liability) – Court says facts described do not give rise to liability.

Types of decisions:

• Dismissal of complaint

• SJ

• Directed Verdicts

Bench trial – judge decides Facts and makes decision(no jury)

Law requires Fault  Fault necessary to prove a tort

• Intent –
o purposely or

o substantial certainty

o transferred intent

• Negligence – careless – trying to do intentional tort, but doesn’t happen correctly and
hurt someone else.

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Intent:

Transferred intent: Intent can be transferred between five torts (battery, assault, false
imprisonment, trespass to chattel, and trespass to land)
- Does not work for conversion or transferred intent
- Can be person/tort to person/tort
o D wanted to assault A, but contacted B= intent to batter B

o Tort to Tort- D wanted to assault A, but contacted A= intent to batter A

o Person to person- D wants to batter A, but contacted B= intent to Batter B

EX:
Garratt V. Dailey – Kid pulls law chair from under woman as she is going to sit
- Trial court only looked to purpose for intent, not substantial certainty. D did not know w/
substantial Certainty that the P would fall to floor. P wins.

Knowledge is important to know with substantial certainty that the action would occur.

Subjective  Individual

Objective  same standard for everyone (what would a reasonable person thin was going to
happen?)

Goals of Tort Law:

1. **(main)Compensation- injured people get compensated by liable person
2. **(main)Deterrence – we shovel our sidewalk b/c we don’t want to be sued
- It shapes societies behavior
3. Administering Justice- we don’t want people getting revenge(Sue don’t shoot)
4. Allocating Risks- who will pay when something goes wrong?

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 - We need to know in advance who is responsible.

Battery:
1. Intent to contact
a. Purpose- was it purposely done

b. Substantially certain knew it would occur

- Don’t need to want to hurt someone, just need to show intent to touch(contact)
- Intent to make an unpermitted contact not supported by P’s apparent wishes or
privilege

i. Ex: Rico Suave in elevator intends to grab girl, not supported by P

c. Transferred intent
d. Not an intent to harm or offend, but intend an unpermitted contact(contact not wanted
by P)

2. Contact with P’s body

- Looking for unauthorizwed touching look to external factors(not what is in

someon’s head)
i. Someone who may have a phobia of being touched is not reasonable
therefore does nt matter, it is what a reasonable person would feel.
- Indirect(sets in force a motion) Extended personality- intimately attached
i. ex: black Nasa employee having plate snatched from his hand)

3. Contact is Harmful or offensive

- Harmful:
i. in view of reasonable member of society, physical alteration of body
- Offensive contact:
i. In a crowded world, a certain amount of personal contact is inevitable and
must be accepted

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 ii. Test: what would be offensive to an ordinary person not unduly sensitive
as to personal dignity.
iii. Hypo: KKK are they close enough to shooe fisherman
iv. Did the actions make the P feel the battery was going to happen at that
time?

- Insurance doesn’t cover intentional torts, only accident

i. If it did, it would encourage intentional tort behavior
ii. Look from perspective of insured to see if it is intentional or accident.

Battery examples:
Piano lesson
- Intent to do action(strike on back)- no intent to harm
- Although no intent to hamr, there was intent to perform the action, therefore
battery.

Mistakes – can be different

Ex: - prop gun in play – doesn’t mean to shoot anything, doesn’t know bullet is coming
out(might be negligent, not battery)
- Dog Kill(wolf-like) – intent to destroy that specific animal know that would
happen.

1. Good faith does NOT negate intent

2. Mistake about the identity of the person or property affected does not negate
intent(meant to do it to that particular person right there)
**Trespasser is still a trespasses, no matter reason or if done in error/mistakenly

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Insanity – we don’t care if you are insane, you are still liable.
- In torts, w never care about insanity, just intent (crim law looks at insanity)
i. If it did, we would have false claims of insanity
- We need to compensate the innocent victim
- For insane to be liable, they still need to prove intent, insanity does not preclude a
finding of intent.
**someone’s reason for doing something could be crazy, but if they intended to shoot a
bullet, they still have intent.

Parent’s liability for Minor

- Common law – parents not liable for children’s tort acts
- Jdgmt cane be made at intervals prescribed by statures as child grows older
- Statues- today may hold parents accountable for up to a certain monetary amount
for injury or destruction of property

Extended Personality Rule: Touch something so closely connected w/ a person’s body that is is
customarily considered part of a person’s body= touching the body
- Intimately connected to P’s body
Examples:
- You touch a stretcher I am in you are touching me
- You drive me off the road and in turn you hit my vehicle that is connected to me
and my head hit the steering wheel of the car that is intimately connected to me.

False imprisonment
1. Intent to confine
2. Confinement in fixed boundaries
Types of confinement by unlawful means:
a. Physical barrier(locked door), physical force(grab someone and sit on them), false
assertion of legal authority to confine(walmart confinement case), duress(if you
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 leave I will do something to your children), duress to property(if you leave I wont
give you your keys)
3. Against P’s will
a. Stay for threat to personal property, but not to resolve a dispute

b. Refusal to release- when you want to leave you can when you want to, they will
not let you go
c. Person does not have to attempt physical violence to leave
4. Appreciable amount of time- long enough to know you are stuck
5. P aware or harmed(jurisdictional Split- some say aware, some say harm)
a. If someone doesn’t know their liberty was gone, not false imprisoned
i. Pennying someone into a room with the door while sleeping, if they don’t
know, then no false imprisonment
b. Threats of physical force
i. That are reasonably believed
ii. Both express and implied(if you leave they might use physical force)

EX: Deprogramming case

- Girl eventually comes around courts says there was no false imprisonment
- Need to believe judgment capacity in danger

The Iron Hand – never agrees or changes his will that he doesn’t want to leave, in this
case there was actual physical restraint.

Ex: Employee in watch department accused of stealing

- If she agreed to stay, it is not against her will(she doesn’t want to be there and
unlawful)
- If there is no force or threat of immediate force, the confinement isn’t unlawful,
nor do we feel she’s really stuck w/o them

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 - False arrest arises when one is taken into custody by a person who claims but does not
have proper legal authority
- Conviction of the crime for which one is specifically arrested is a complete defense to a
subsequent claim of false arrest
i. Ex: women taken to jail for not showing her license when her dog was off
leash
1. She was arrested for one crime and charge for another, therefore
she was falsely imprisoned.

IIED- Intentional Infliction of Emotional Distress

1. Intent to cause severe emotional distress
a. Purposely
b. Recklessly- didn’t know it would occur
2. Acts with reckless disregard of high probability that action will result in IIED
a. Extreme and outrageous conduct)
3. Causes
4. Severe emotional distress

Ex: Blowing off steam – Dr( not surgeon performing operation) says I don’t like you before one
is to undergo surgery
- She was really upset
- Conduct must be outrageous to put the point that it goes beyond the bounds of
decency and is utterly intolerable in a civilized society

Ex: think skinned P- private investigator told of marital affair to wife and union members
- It is not extreme and outrageous to tell the truth

Trespass to Land
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 1. Enter land or cause thing or third person to enter the possession of another
2. Remain on the land
3. Fails to remove from the land something he is under duty to remove

Assault – this tort protects from mental tranquility

1. Intent to cause fear
2. Fear or apprehension of imminent battery
a. D intends to make P think P is about to be battered right then
b. P reasonably believes that P is about to be battered right then

Hypo: man sprays kids with hose bc they will not get off this grass, this is not assault bc he has a
right to do so.

Trespass to chattel & Conversion – difference is degree

Conversion- The personal property of another

- Entitles a P to collect damages where the D has interfered with the P’s personal
property to such an extent that the D is required to pay its full value

*conversion largely supersedes the tort of trespass to chattels

Privileges or Defenses to Intentional Torts:

Consent:
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 - Is not a defense, it is a counter-argument( but we will talk about it with defenses)
- Defn: The one who is willing, no wrong is done
o Express Consent: Agreed to the tort( Verbally or Written)

o Implied Consent: Outward behavior is such that a reasonable prudent person

thinks that the person has consented to the tort -> thus consent is given by P

 Means of implying consent:

• Conduct

• Custom/Usage
o Emergency as a substitute for consent

 Unconscious or w/o capacity

 Time is of the essence – reasonably apparent delay

to get consent would risk BI/death – Prompt action
is needed

 Under the circumstances, a reasonable person

would consent and probability is that this patient
would consent.

Ineffective Consent:
1. Incapacity
a. Drunk, infancy, mental incompetency, legally incompetent
b. Exception: emergency privilege.
2. Coercion
3. Exceeding Consent: P gives consent to do one thing, but P goes way beyond that consent
(Mohr v. Williams: Doctor operated on the wrong ear, P sues even though the operation
helped her.)
4. Mistake: look at the essential character of the act itself

5. Fraud: Consent not valid is fraudulently received

- (Demay V. Roberts – P was having a child, she thought D was a doctor and
permitted him into birthing room. P uses D b/c she consented to him being there
b/c she thought he was a doctor.)

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 - It’s about what was not said but should have been said (Barbra V. John – she
consented to sex thinking john was sterile, bc he inferred it)

6. Criminal Conduct: Most jurisdictions say that you cannot consent to an illegal activity

Self-Defense: Only allowed to defend yourself, but can’t use unreasonable force

Defense of Property: Use of reasonable force is acceptable

- Although life is more important than property:
o Katko v. Britney: Guy broke in and was shot by the trap gun set up by D. He
recovered for injuries b/c the force was excessive to protect property.

Defense of Others: If you reasonably believe a battery of another will take place, you can help.
- Reasonable force to other has to be proportional
- the person must know they need help.

Shopkeeper’s Privilege:
- Reasonable belief that P has stolen something
- detention for reasonable amount of time
- in a reasonable manner

Private Necessity: Defense of property tort

– you have the right to commit a tort to save your life
- must pay for damages caused to the property
- Ex: Vincent v. Lake Erie Transport: The ship had to stay at the dock to save the ship, but
it caused damage to the dock. The court says no trespass, but boat has to pay for damage
to dock.

Public Necessity: D reasonable in believing that his action is needed to protect the public
interest threatened with serious immediate harm

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 - Ex: Surrocco V Geary: they had to tear town his house to stop the spread of fire in the
town, it was the best thing for the public interest

NEGLIGENCE

I. Did the D owe the P a duty of Care?

a. General Rule of foreseeability: Was unreasonable risk of harm foreseeable if D
did not exercise reasonable care?
1. You have to guard against foreseeable harm, but not unforeseeable harm.
- Foreseeability of an injury creates a duty
a. Look at:
i. Likelihood
ii. Probability of the danger
b. Are any no-duty rules applicable?
1. Is P unforeseeable? ( for exam use Cardozo view) D must have had no
way to know that P was going to get injured.

• Zone of Danger: **Majority Cardozo Rule: If P is in the area in

which the D knew or reasonably should have known P could get
hurt the P is in the zone of danger and therefore D owes P a duty

• Minority Rule: P#2 will almost always be foreseeable - if you are

negligent towards P and you injure a second person, that 2nd person
will almost always be foreseeable.
2. Misfeasance v. Non-feasance
- Misfeasance: Doing something badly. Active misconduct causing
injury.
a. Generally, LIABILITY WILL BE ASSIGNED.
b. EX: drunk driving, doing something so stupid, they have to
know they will cause harm, thus they owe a duty.

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- Non-feasance: Passive inaction, or failure to protect others from
harm.
a. Generally, if there is no exception in place, there will be
NO LIABILITY.
- Limitations based on the idea of nonfeasance: No Affirmative
Duty
a. No duty to protect: The fact that the actor realizes or should
realize that action on his part is necessary for another’s aid
or protection does not of itself impose upon him a duty to
take such action
i. Hegel v. Langsam: 17 yrs old girl got into drugs in
college, College had no duty to protect from social
harms bc no special relationship existed
b. No duty to Rescue: You don’t have to put yourself in harms
way unless there is a special relationship.
c. No duty to control 3rd parties: The D does not have to
control the actions of 3rd parties negligence.
i. EX: if you are over my house and another person
gets a knife and stabs you. I’m not held liable for
that negligence just bc it happened on my property.
- Overcoming NO Affirmative Duty: If a rule in nonfeasance
limitations applies, overcome using the following:
a. Argument this is misfeasance rather than nonfeasance
b. D’s conduct put P in Peril: If you are putting someone in
danger, you owe them a duty to act on any harm suffered
by them.
i. Ex: if you let someone ride on the top of a car, you
have assumed a duty if things go wrong.
c. Special Relationships: D owes P a duty
i. Common carriers
ii. Hotel and guests
iii. Grade school students and teachers
iv. Jailors and prisoners
v. Parents and children
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 vi. Husbands and wives
vii. Contract: Once you have taken the duty to take on
the responsibility by contracting with someone, the
person in the contract is now in privity.
viii. Doctor – patient
ix. Innkeeper – guest
d. Assumption of duty: If you voluntarily take on a duty, you
must fully perform that duty. Once you have started to
rescue someone, you must be careful and reasonable.
i. EX: if you take sick person off street, you have
assumed duty to help them.
3. Privity of Contract: If the contract is the source of the duty, P is suing
over nonperformance must be a party to the contract.
- One who undertakes to perform contractual duty for another, and
fails to adequately perform the duty, owes no special duty to any
third party harmed by his nonperformance, unless the 3rs party was
part of the contract.
4. NIED – Negligent Infliction of Emotional Distress
- IF there was negligence, both the actual person and bystanders can
claim emotional distress.
a. Directly harmed : The actual Victim injured by negligence
i. Impact rule: the P has to be touched in some way to
collect for NI. There has to be an impact ( Minority
rule)
ii. Physical manifestation rule: P has to show some kid
of outward physical manifestation of emotional
distress. ( Minority rule)
iii. Zone of danger: Is P within the zone she can get
injured
1. EX: car same speeding by and almost hit
you, there is a duty.
iv. Foreseeability: the harm has to be foreseeable and if
it is foreseeable, then there is a duty.
b. Bystander harmed: The did not get directly touched from
negligence but suffered some sort of mental anguish
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 i. Zone of danger: P has to be around the accident or
in the zone of danger where it would be likely
someone could be mentally injured.
ii. Dillon Foreseeability: There is a duty where
emotional harm is foreseeable and here are the
guidelines:
1. be present at the scene
2. be closely related to the victim
3. be aware of the injury
iii. Thing Rule: It throws out the Dillon rule and
replaces it with its own standard
1. P only has to be at the scene and
2. A close relationship
3. It must be significant emotional distress,
way more then the average bystander, but
less than a hyper sensitive person.

- Remember: a car accident is an ongoing scene, so the P

doesn’t have to be there art the time of the impact, but have
seen the events after the fact.
5. Premise Liability
- Trespassers: No duty owed to criminals who are on your land
however land owner must avoid intentional injury and guard
against willful, wanton and reckless injury against all trespassers.
Exceptions:
a. Frequent trespassers: If the landowner knows that his land
is frequented by trespassers then he must exercise
reasonable care (Ex: kids cutting through yard to school)
b. Discovered Trespassers: The landowner must exercise
reasonable care to avoid injury upon discovery. They cant
go off shooting them, bc they must avoid intentional injury.
c. Child trespassers: The landowner should know that the
children will be trespassing. Things to avoid:

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 i. Attraction onto land must be artificially
created(swimming pool, trampoline NOT lakes,
ponds rivers etc,
ii. Possessor has to know or should know kids will be
attracted to it
iii. Possessor knows the artificial condition could cause
death or serious harm to kids
iv. Kids are below an age that they couldn’t know it is
a danger.
v. The risk outweighs the burden( Ex: putting padlock
on fence to the pool to keep kids out)
d. If private necessity puts you on the land you turn from a
trespasser to a licensee
- Licensees: A person who has the owner’s consent to be on the
property, a social guest and there for their own benefit not relating
to business
- Owner is required to place licensee in the same position of safety
as they would themselves.
- The warning of danger is enough:
a. Public parks, theaters etc: if P enters one of theses they fall
within licensees
b. Public employees: Firefighters, police are generally held as
licensee, not invites and therefore no affirmative duty to
make the premise safe for the
- Invitees: invited by the landowner for Business conduct but also
for the benefit of the landowner.
a. Business invitees: on land and it is open to the public in a
way similar to store owners permission
b. Public invitee – you are on a public park or land.
- Lessor/lessee – reasonable measures within landlords power to
protect their tenants. (similar to innkeeper/guest)

Licensee Invitee Trespasser

Avoid intentional injury; willful X X X

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wanton reckless injury

Reasonable care of active X X

operations

Warn of known or hidden X

dangers

Reasonable care to make X

premise safe

II. Did the D breach the duty owed P? (If we have a breach of duty, then we have
negligence)
a. What is the standard of care?
1. The RPPSSC test (what would a reasonable person/company)
- Emergency situations - RPP in same emergency situation
- Physical disabilities – take the precautions a RPP with disabilities
would take.
- Children – should act like RPchild of same age and circumstance
a. Exception: if a child is participating in an adult activity
( guns.. anything with a motor)
- Mental retardation: SOC not lowered for this. They are compared
to a RPP with normal intelligence.
a. Exception: suddenly stuck by insanity
- Professional Duty
a. Three areas to look at
i. Must act like an ordinary professional would in that
community to nation
ii. Must be compared to professionals in the
community
iii. Must have expert witness to prove D didn’t act like
the ordinary professional

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 - Lawyers – posses the requisite degree of learning, skill and
ability necessary to practice in a way like others in the industry
- Doctors – Informed consent
i. D doctor failed to inform him of material
risk before securing consent to proposed treatment
ii. If he had been informed of the risks, he
would not have consented
iii. The adverse consequences that were not
made known did in fact occur and he was injured as
a result of submitting to the treatment.
2. Objective standard
3. P must prove whether D acted as a RPP would act.
4. Held to a normal intelligence
b. What is P’s theory of negligence(TON)?
1. P’s idea of what the D did wrong
- i.e. – didn’t lock the bulldozer – didn’t use headlights etc.
c. Apply a balancing test, either Risk utility or Risk Burden.
1. Risk Burden – B< PXL (Burden< Probability X severity) – Used if D is
negligent
- B=burden put on D to take the necessary precautions in preventing
injury.
- P=probability something will go wrong if precautions not taken
- L= severity of the injuries that will likely occur if precautions are
not taken
2. Risk Utility ( Torts Restmt 2d) – used if D trying to accomplish a goal
- What is the risk I am putting people in?
a. Social value interest protected
b. Chance that D’s conduct will endanger P or P’s class?

c. Extent of harm likely to occur

d. The number of people that could be harmed
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 - Does that risk measure with the utility?
- Utility: why were you doing what you were doing?
a. Social value interest
b. Extent interest will be advanced/protected by D’s
conduct
c. How well interest could be advanced/protected by
less dangerous conduct
EX: I was speeding(risk) to get a woman in labor to the
hospital(utility)
3. Shortcuts to Standard of Care(Easy way to prove breach of duty)
d. Other breach issues the facts raise:
1. Violation of statute – if there is a law in place and D breaches it, then he
is automatically negligent. Statutes sometimes tell us how a RPP should
act in some situations
- Questions to ask
a. Does it impose a SPECIFIC duty?
b. Is it a safety statute?
c. Is the P in the class meant to be protected by statute?
d. Did the P suffer injuries the statute was meant to
protect them from?
- Procedural Effect of violation of statute:
a. Negligence Per se –violation shows negligence in absence
of a valid excuse
b. Rebuttal Presumption – violation creates a presumption
of negligence, if D has no rebuttal, there is negligence.
2. Custom – violation of industry/region specific customs that are
universally recognized can prove that the D was negligent.
- Can be used on D or P side(shield or sword)
a. Widespread
b. Safety custom
c. Fairly well defined
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3. Res Ipsa Loquitur –Accidents wouldn’t happen unless someone acted
negligently. If it looks like someone acted negligently, then someone
probably did. (P doesn’t know what D did wrong, but there was
negligence)
- Does RIL Apply?
a. The harm was probably caused by some kind of negligence
b. The D was probably the culpable party
- The prove is on the P to prove RIL, D can stay silent
- Procedural effect of RIL:
a. Majority rule: Permissible inference
i. P must prove that the circumstances surrounding the
situation caused by D. D can remain silent
b. Minority rule: Rebuttal Presumption
i. D must have one rebuttal and it helps if he shows he
acted with reasonable care.
c. Obsolete: Burden Shifting
i. D must show care beyond a reasonable presumption
4. Quality of proof (constructive notice or method of operation):
- This is a type of Circumstantial evidence – look at the
surrounding circumstances using an objective standard to decide if
there is a breach.
- Constructive notice: Did the D have reasonable time to clean
up the mess, if the mess just happened a second prior and P falls,
there is no way that D could have cleaned it up in tine, but if it
were there for a longer period of time, there may have been enough
time to clean up the mess.
a. D would say that P cannot prove how long the hazard was
there.
b. Ex: banana case – do we know how long the banana was
there?
- Method of Operation: The D is working in such a way that a
dangerous condition would happen.
a. Ex: pizza served on wax paper
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III. Was the D’s negligence the actual cause of the P’s injury?(was the P hurt bc of the
D’s negligence?)
a. But –for Test + any weight of evidence concerns(Proof of Causation)
1. But for the D’s negligence, the accident wouldn’t have occurred. If it
would have occurred anyway, the D is not negligent.
- Ex: Talking on cell phone while driving. The accident would not
have occurred if not talking on cell phone, cell major cause of
action.
b. If But-for doesn’t work, alternative approaches – Choose most appropriate
one( which is P most likely to ask for)
1. Substantial Factor- Negligence is a cause in fact of the harm to another if
it was a substantial factor in bringing about harm. Look for what was the
substantial factor. ( you were the largest and most prevalent cause of the
injury.)
- Concurrent causes – There are 2 D’s and neither D can be proven
as the actual cause, but it is clear that one of them is the cause of
the injury. It doesn’t matter, if it can be proven that the injury was
b/c of the actions of one of a few D’s then they combine to create
the negligent circumstances.
- Material Factor - You were one of a few factors that caused the
injury
2. Lost chance/proportional or relaxed causation - Defense: More
probably than not the patient would have died anyway(no cure)
- Doctor cases: Dr doesn’t catch illness right away and mans
survival goes from 60% to 20%. Michigan says more likely then
not the guy wouldn’t have died had the Dr properly medicated.
- Substantial factor(some jurisdictions) Doc has to cause over 50%
of the decline in death.
- Some jurisdictions say it is not the dying but the value of the loss
of chance of life.
3. Alternative liability(Summers v. Tice) – (Two men hunting should
towards other man) Where two D’s have acted independently negligent
towards the P, but only one has injured P, but it is not possible for P to
prove which D caused the injury

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 - Burden shifts to D if: P can prove it was one of a few people
which could have caused the injury. If neither party can prove they
weren’t the cause, then both are liable.
4. Enterprise liability - The whole industry is jointly liable for failing to
take safety measures creating an unreasonable risk of harm – Fungible
products created in small markets.
5. Market Share Liability – A group of people(usually manufacturers) are
responsible for the damage their product does. Even if P is not exactly sure
which manufacturer caused the problem, P can use market share liability
to share liability in accordance with the percentage of the market share
they have.
IV. Was the D’s negligence the proximate cause of P’s injury? Is the causal connection
too weak that it wouldn’t be fair to make D pay?
a. Call of question – Wagon Mound or Polemis Jurisdiction?
1. Foreseeability Rule: Wagon Mound(MAJORITY) - Liability is
imposed if that which is within the circle of reasonable foreseeability
- What was the foreseeable risk?
- What did he negligently do?
- What was the scope of the risk?
a. The risk that results must have been one of the risks that D
was negligent for failing to avoid. It must have been
foreseeable to the D or a reasonable person.
2. Directly Traceable Rule: Polemis(MINORITY) – Is the damage directly
traceable to the negligent act of someone? Is it clear that there is a good
link between D’s acts and P’s injuries?
- You must look and make sure there are no other outside causes or
intervening causes.
b. Intervening causes. Do they supersede? Something happens which sets into
motion another thing to happen, this chain can be cut off by an intervening cause.
1. Superseding cause – something extraordinary, unforeseeable and
independent.( not what you expected to go wrong, some things are just not
caused by negligence)
c. Criminal acts/Intentional torts – duty to protect from criminal conduct
Negligence exposed P to criminal conduct or destroyed protection against
criminal conduct.

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 d. Eggshell P? If the P is unstable/old/fragile, any injuries that were foreseeable the
D has to pay for.
1. Defense – unforeseen extent of personal injury
e. Rescue Doctrine -
f. Public Policy (we didn’t cover this term)
V. Was P injured?
a. Must be personal injury or property damage
VI. Are there any defenses?
a. Comparative Fault/Comparative Negligence -
1. How was P being careless?
2. Was P being Careless?
- Pure: P’s damages are reduce in proportion to the % negligence
attributed to P.
- Modified: As long as P’s negligence remains less than the D’s
negligence the P may recover, but P’s damages would be reduced
in proportion to the % of total negligence attributed to P.
a. When P’s fault reaches halfway point, it converts to
contributory negligence and P gets nothing
i. Some states: P’s negligence “does not exceed” or is
“not greater than” D’s. ( P must be 50% or under)
ii. “is less than” or “not as great as” d’s (P with 49% or
under)
iii. The % is a jury instruction, juries create the justice.
- Contributory Negligence - P did something by his own fault and
therefore is a contributing factor – P’s negligence might be a
superseding cause which makes the negligence no longer
proximate.

P Pure Not as great Not greater than Contrib

fault as

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 90% $10K 0 0 0

60% $40K 0 0 0

50% $50 0 $50K 0

K
20% $80K $80K $80K 0

b. Assumption of Risk -
ASSUMPTION OF THE RISK

P knows of a risk that D’s conduct presents, appreciates the magnitude of that risk, and
voluntarily encounters that risk. P is either agreeing that D will not be exercising care to prevent
that risk or does not expect care to prevent that risk. So, when P dashes out into traffic in front
of oncoming cars, P has not assumed the risk, because P hopes very much that those drivers will
be looking out for her.

PRIMARY SECONDARY

EXPRESS P has expressly consented in

advance to relieving D of
obligation of conduct toward
him and taking his chances of
injury from a known risk arising
from what D is to do or leave
undone. (Typically occurs in a
release form.) No such thing as express secondary assumption of
the risk.

NO DUTY - BARS
RECOVERY

(As long as clear/unambiguous

and not against public policy)

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IMPLIED Like consent - P agrees to take
chances
-P voluntarily enters into some
relationship with D,
knowing D will not protect
her against one or more
future risks that may arise
from the relation; D not
negligent when P assumes
risk
- P engaging in activity offered
by D, knowing it has
certain unavoidable risks
- Trade-off is fine w/ P
BARS RECOVERY
Often treated as NO DUTY,
sometimes as NO BREACH
Examples: The flopper, front
row seats on 3rd base line,
another student in rock-climbing
class dislodges rock
P voluntarily encounters risks of D’s unreasonable
conduct B D has breached duty of care, and if it hurt P
before P aware of it, D would be liable. In other words,
D is already negligent when P assumes risk.
Example: D is driving drunk, and P accepts ride from
him.
USED TO BE A TOTAL BAR B but what happens
with comparative fault?
UNREASONABLE decision REASONABLE
to encounter risk, looks like decision to encounter
comp fault, so in most risk --
jurisdictions it MERGES
with comp fault, although before CF, P who
minority still use as bar reasonably assumed
risk would not be
barred by contributory
negligence but could be
barred by A/R
Under CF- some
jurisdictions refuse to
bar/reduce recovery for
reasonable choices
- in some, complete
bar, this is consent
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