TORTS OUTLINE

Kessler

Fall Outline 1998

GENERAL OVERVIEW

Ladder of Abstraction: At the bottom of the ladder, be very specific as to the facts of the case. Ex.
Only one Bessie the Cow. Going up the ladder of abstraction, things become more generalized.
Ex. Bessie--cow--livestock--depreciated asset.

• To be guilty in a civil trial: P must prove: Need preponderance of the evidence; "more
likely than not"; estab. a Prima Facia case.

CAUSATION: CAUSE IN FACT

D is only liable for those damages that were caused by his negligence. Defendant can be held
guilty if it appears that his conduct was the probable cause of the injury. This is not an absolute
burden, just more likely than not, absolute proof is not necessary.
P must show that negligence was caused by a preponderance of the evidence. The P must
establish a reasonable causal link between defendant’s actions and plaintiff’s injury. Proof is
sufficient if reasonable men can differ, then it will go to the jury, and this is half the battle for
plaintiff’s attorney.

Grimstad: Employee/Captain fell off barge owned by D. No “ADEQUATE” lifesaving equip.

was on board. She grabbed some safety line, but when she returned, he already drowned. P
couldn't swim and he drowned. This case did not get to the jury.

P argues: D's failure to provide adequate life saving equipment was CIF of death. Must prove
that D's conduct was the probable cause of injury. (Propon. Of the evidence: More likely than
not).

D argue: Insufficient evidence of CIF. P failed to meet their burden and reasonable men
cannot differ, when they can't differ, no issue for jury. Move for a Directed Ver. Even if she
came back with proper life saving equipment, it would not have mattered- he drowned
already.

H-Jury could only speculate as to whether inadequate life saving equipment was the CIF of the
injury & juries should decide case based on facts, not opinion. *No proof that. . .if adequate
equipment was on board P would have even gotten to it b/c he couldn't swim. D wins a directed
verdict.

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R- D is only liable for those damages that were caused by his negligence. P must establish a
reasonable causal link b/t D actions and P's injury.

• Kirincich: decedent fell off dredge and was carried away by tide. Shipmate tried to save
him with inadequate lifesaving equipment. P wins.

P argue: disting. from Grim. Here, Ps estate was above water when rope was thrown. It barely
missed P, he could swim, & floatation device would've dramatically helped save his life. No
speculation here.

D argue: similar to Grimstad and we should also win. Cannot let jury speculate as to whether
equipment would have saved him. No way of knowing if floatation device was on end of rope if
decedent would have been saved.

R- Question about which reasonable men might differ whether decedent would not have been
saved, if adequate life saving equipment was present. *Jury should decide if it was reasonable.

• 2 options in Cause in fact: Trial Judge decides if reasonable juror could decide if it is
more likely than not (like in Grim) inadequate life saving equipment was cause in fact of
Grim drowning. 1. If NO (life saving equipment was not cause in fact), directed verdict
for D. 2. If Yes, case goes to jury for deciding.

Zuchowitz case: Dr instructed Ps decedent to take double the maximum dosage. She then got
PPH and died. To get to a jury all P needs to prove is: that a negligent act was wrongful because
that negligent act increased the chances that a particular type of accident would occur. Then P
needs to show that that result/accident did occur. D would then need to bring in evidence to
disprove this “but for” cause.

B. Slip and fall cases

• Reynolds v. Texas and Pacific RR: Heavy woman was waiting for train. She leaves
lighted waiting room to go to train. She trips and falls down unlighted stairs while
heading towards train platform. She doesn't know what caused her to fall.

D argue: Motion to dismiss due to insufficient evidence of CIF. (With this motion, judge has to
assume what P and witnesses said as true) She doesn't know what she slipped on. Could have
been her own feet. Being heavy, could have lost balance so CONTRIBUTORY negligence
possibility.

CASES: Purely speculation to know what caused fall (Grim) and reasonable men could
differ as to if light would have prevented injury (Kirin). People fall all the time in lighted areas,
let alone unlighted areas.

P argue: Reasonable to think an unlighted area "greatly multiplies" the chances for accident.
Forced to stay in lighted waiting room by RR co. When left lighted area, forced to rush to make
train by going down steps in an unlighted area.

Ques: Why didn't P say what she fell on? A: Could lead to contributory negligence. No
explanation leaves her safe.

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R- Where the negligence of the defendant greatly multiplies the chance of an accident to the
plaintiff, and is a character naturally leading to its occurrence (the lighting led to it, not that she
got herpes), the mere possibility that it might have happened without the negligence is not
sufficient to break the chain of causation between the negligence and the injury, thus a
reasonable juror would find but for the D’s negligence the P’s injury would not have occurred.
Here it went from lighted to unlighted area so fat lady could not re-focus.

• McInturff v. Chicago: decedent fell down stairway and was found dead at bottom. No
eyewitnesses to accident. Stairs were shown to be worn.

P claim: The worn down stairs greatly multiplied (Reynolds) the chance for injury. As in
Reynolds where the lack of lighting increased chance for injury, here the lack of handrails and
worn down stairs greatly multiplied.

D claim: In Reynolds, testimony of woman erased speculation to other causes since she was alive
and said it was not a mugging for example. Here, decedent couldn't tell us what caused injury,
we are merely speculating. He could have been pushed down stairs, we don't know! Mere
possibility does not provide causal connection b/c there are too many other possible explanations.

R-- Cannot assess damage on conjecture as to what probably caused the death (Grim).
*Insufficient proof due to the possibility of a third party. Evidence must show neg. greatly
multiplied the chances, but also that other factors weren't equally possible in causing
injury. Reynolds was able to say what it was not at least whereas dead focker cannot.

• Pequa Hypo: When water gets to 13 ft, they go out the wickets. Dam is 15 ft high. P
property is destroyed when water went 20 over dam. Even if they would have cleaned it,
it would have overflowed..

P-Wickets negligently did not do the job, causing damage. D should have cleaned the wickets.

D-Motion to dismiss. Lack of causation that wickets caused the injury. Act of nature caused this.
Even if wickets worked, there would have still been overflow. Blame G-d.

R-Cannot be a joint tortfeasor with G-d. D, the negligent party, is NOT liable for damages
which would have occurred even without their actions.

• Change hypo to valuable collectibles: Timing issue. With more time, could have saved
valuable collectibles.

P-Injury is now the inability to get collectibles to safety. If wickets worked, there would have
been enough time to save the collectibles.

D- Same case as before: Lack of causation that wickets caused the injury. Act of nature caused
this. Even if wickets worked, there would have still been overflow. Blame G-d.

Holding: P has to do all that he can to get as many valuables to safety as he can- P cannot just let
everything go to waste because D is negligent. D is fully at fault here if P did all that he could
but still lost a lot of valuables as a result of the time lost by D not cleaning out the wickets. P
would be contrib. if he lets everything go to waste because of Ds negligence.

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C. Joint and Several Liability

• Joint Liability: Each of the several D is responsible for the entire loss which they all
caused in part.

• Several Liability: Each D is responsible only for his proportionate share of the loss.

• Joint and several liability: if more than one person is a proximate cause of Ps harm, and
the harm is indivisible, each D is liable for the entire harm, although P can only recover
from one D.

Hypo: overflow of ponds by an unprecedented flood damaged Ps property (God). Wickets were
stopped up but the injury would have occurred anyway (with or without Ds negligence of not
cleaning out the wickets). Should someone who was negligent get away with something because
it would have happened anyway?

Rule: you cannot sue someone if the exact same damages would have occurred naturally at the
same time or a few seconds earlier.

• Kingston v. Chicago: Two fires joined to burn down house. One caused by RR, other
caused by unknown origin. Holding was that RR was proximate cause of the fire.
R - Concurrent Causes—where 2 events concur to cause harm and either one would have been
sufficient to bring about the injury, D is liable if the other fire caused was from another human
agency (other human agency is also liable- in fact, both are fully liable, but P can only recover
from one D). If D can prove that G-d caused the other fire, then he will not be liable since one
cannot be joint tortfeasors with god. (Stated more succinctly: R- A negligent party is not liable
for damages which would have been sustained even if the negligence never had occurred.)
Burden on D to find the other party that caused the harm b/c wrongdoers should not escape
liability while innocent P suffers. D is fully responsible for the harm and injury if the other
person who caused the fire cannot be found. If the other person is found, both cannot plead that it
was the other D so that each get off and P gets no recovery.

OTHER BURDEN SHIFTS ON PAGE 5.

• Kramer Hypo: Walked into store. Under door, glass pane breaks and glass falls on head
causing cuts. He then gets malignant tumor on head and sues for pain and suffering on
head and CANCER.

D argue: insufficiency of evidence to prove glass negligence is the CIF of your cancer. Willing
to pay for injury of cuts to the head, but pure speculation (Grim) to think cuts caused cancer.

R- Mere possibility is not sufficient proof. Not enough to prove CIF. It could have been his
smoking, his parents smoking, the nuclear plant near his house, etc. Therefore, this was a
directed verdict.

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 • Dr. Ewing Hypo: Woman gets hit in the breast. She is hurt, but later also develops breast
cancer. She sues. P has Dr. Ewing that will testify cancer is possible when you hit
someone in specific area of the breast. D has 4 well respected doctors testify that Dr.
Ewing's idea is ridiculous.

P- Dude hit me in the boob and I curiously developed breast cancer, which the reputable Dr
Ewing says is his fault. D is the cause in fact.

D- P has failed to present prima facia case, like above hypo. Speculation and conjecture. Want
a Directed Verdict due to insufficiency of proof. Cannot have speculation, as Grimstad ruled.
Here, it is one Dr. against 4 doctor's opinions, so their evidence is insufficient.

Ct -If experts could differ on the facts, so could the jury. Jury can assess the credibility of the
witnesses and reasonably (Kirin) make a decision-- not as Speculatory when there is an EXPERT.
If experts can disagree on facts, then so can the jury. Had Kramer brought in expert witness
saying pane glass falling on head will cause cancer, it would have gone to the jury there.

Joint Tortfeasors (Burden of proof exception)

• Summers v. Tice: Hunting along when one of the 2 D's shot P in the eye. P is not sure
which one shot him.

D argue: Directed verdict due to insufficient evidence. Each D will say he did not do it so that
they can both get off.

P argue: Burden of proof should switch to D when both shown to be negligent. Ds

negligence also is the reason that I do not know who shot me in the eye. Cite Kingston.

R-- Burden of proof shifts to each D to prove innocence. Their negligence was the cause in
fact of the injury and the burden should rest with each individual D to prove their own innocence.
They are joint tortfeasors.
Restated: where 1) P is innocent can show 2) that both people were negligent, and 3) only one
person could have caused the injury, the burden of proof will shift to D’s to show that they did
not do it. If they can’t, then they both will be held liable. Once the above conditions are met,
the burden of proof shifts to the D and they will be held jointly and severally liable. Nature of
injury prevents P from knowing who caused the injury. D are in a far better position to offer
evidence to say who caused the injury.

• Haft v. Lone Palm Hotel: P drowns in pool on hotel premises. Hotel violated a statute
saying that you had to have a lifeguard on duty or you had to post a sign saying, "no
lifeguard on duty" Estate of dead father and son sue hotel for violating the statute

Issue: Does it make a difference if P would have had notice?

D argue: The statute says you have to have a lifeguard or you have to have a sign so since it says
lifeguard OR a sign, you do not have to have a lifeguard & a sign would not have made a
difference, the father could see there was no lifeguard, so a sign would not have saved anyone, it
was not the cause in fact of the injury.

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P/R- This defense is 100% true but it leads to a bad result: the hotel owner would get off for
making it impossible for P to meet his burden and he would also get off even though he violated
both elements of the statute. Therefore the burden shifts to D since they were negligent and made
it so that P could not get info as a result of their negligence (without lifeguard there info can be
given). D to get off (anyone reading this and thinks about D getting off needs to concentrate on
torts more) would need to show that he was not the cause in fact of the death. A stupid statute
like this gets passed because there are poor hotel owners who cannot afford lifeguards.

Policy: we do not want D, the negligent party, getting away with this because P has no info.

Other rules with joint tortfeasors:

Hypo: D1 negligently breaks Ps arm. D2 negligently sets the arm, leading to gangrene and then
amputation. D1 is liable for all harm, including amputation (as he is but for and proximate case).
D2 is only liable for the amount in which his negligence worsened the condition – the difference
between a broken and amputated arm.

Contribution: D sues a tortfeasor to get the other liable D to pay his share of the total damage
(see Dole later on also).

HYPO: a court holds that two D1 and D2 are jointly and severally liable to P for $1 million. P
collects the full $1 million from D1. D1 may recover $500,000 from D2. If two Ds are jointly
and severally liable, and one D pays more than his pro rata share, he may usually obtain partial
reimbursement from other D (Contribution). Each D in the end would have paid an equal share.
This also works in comparative negligence case: if D1 was liable to P for 2/3 and D2 was liable
for a third in the same case for $1 million. If D1 pays it all, he can collect $333,000 from D2.

Limits to contribution: 1) an intentional tortfeasor may not get contribution from his co-
tortfeasors (even if they too behaved intentionally). 2) The contribution D (that is, the co-
tortfeasor who is being sued for contribution) must in fact be liable (example would be husband
driving negligently with his wife as a passenger who then crashes with a negligent D – If wife
gets full verdict from D then D may not recover from husband (the joint tortfeasor) since intra-
family immunity would prevent wife to recover from husband directly, therefore D cannot get
around that).

What if one D settles? D1 settles and D2 – against whom P later gets a judgment – sues D1 for
contribution. Two main approaches: 1) Traditional approach: D1, the settling D, is liable for
contribution (probably the majority view). 2) “No contribution rule:” you guessed it; D1 is not
liable for contribution. This is popular as it gives Ds strong incentive to settle.

Indemnity case: one of several (in the tort context) wrongdoers cannot recover against another
wrongdoer. When two parties act together, the party held responsible for the act cannot have
indemnity (or a 100% shift of liability to the second D) from the other because both are equally
culpable and damage results from their joint offense. The act is what is wrong for the first
wrongdoer and the other is liable for failing to discover or correct the defect. Basically,
concurrent tortfeasors are liable for the whole of an injury whenever negligence is a proximate
cause of the injury.

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 Market Share Liability (burden of proof exception also):

Market share liability (based on a national market) – P has to show

1) All Ds are potential tortfeasors.
2) Allegedly harmful products are identical and share same defective qualities.
3) P unable to identify D that caused injury through no fault of her (P) own.
4) All manufacturers which created defective product during the relevant time are Ds.

Liability is then apportioned to correspond to overall culpability of each D measured by

amount of risk of injury of each D created to the public at large. If one does not prove
their way out, they are liable to your percentage. There is no sure way to get the real
guilty party but oh well.

General Rule for market share: If P cannot prove which of three or more person caused his injury,
but can show that all produced a defective product, the court will require each of the Ds to pay
that percentage of Ps injuries that Ds sales bore to the total market sales of that type of product at
the time of injury.

• Sindell v. Abbott Labs: P in a class action suit sued 5 drug companies that had produced
DES. P's mother had taken the drug causing injury to P. 200 companies produced the
drug, and P didn't know which produced the DES used by her mother.

• Holding: any manufacturer who cannot show that it could not have produced the
particular doses taken by Ps mother will be liable for the proportion of any judgment
represented by that manufacturer’s share of the overall DES market. Burden is on D.

D- would say Prove it. (Although this does not work with burden shift)- there only way to
get off would be evidence that they could not have done it.

P- all the pills are generic, how am I to Know exactly which of you Ds did it? All I know is
that I did take a drug from 1 are all of you and now your negligence caused my injury.
Burden is on you to free yourself of liability (Summers v Tice principle).

R-P is prevented by D from proving causation b/c all the pills looked generic. Burden shifts
to D. Hold each liable for % of Mkt. Share (thus several liability).

OTHER RULES ON MARKET SHARE:

In market share theory: courts are split on whether each D should be allowed to exculpate itself
by showing that it did not make the particular items in question – some more modern cases hold
that once a given D is shown to have produced drugs for the national market, no exculpation will
be allowed.

Courts adopting the “market share” approach often reject joint and several liability – they allow P
to collect from any D only Ds proportionate share of the harm caused. For example, had P sued a
single D and showed that D accounted for 10% of the market. If court goes by market share
approach and D is found to be negligent, P only gets 10% and D cannot take the full 100% hit for
the industry.

If the product is found to be socially valuable, such as a vaccine, courts will likely not apply the
market share approach.

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HYPO: D, an MD, negligently operates on P. The operation leaves P with a 20% risk of
contracting a particular disease in the future. At the time of trial, P does not yet have the disease.
Most, although not all, courts would not let P recover anything for the risk of getting the disease
in the future (those courts that would let P recover would only let if P shows that the disease is
more likely than not to occur). Some courts might let P recover damages for having the disease,
discounted by 80% to reflect the 80% chance that P will not get the disease after all.

D. Contribution at Common Law: Joint Tortfeasors and Workman's Comp.

• Dole v. Dow Chemical: Dole dies in chemical accident on the job. P sues manufacturer of
chemicals b/c can't sue employer due to Workman's comp. rules. Manufacturer impleads
employer for not following their instructions.

Ct: Jury finds Employer 90% and manufacturer 10%. P collects the whole thing from
manufacturer, who then collects from employer. Look at it as a huge pot- manufacturer puts in
100% of the total money and then collects 90% of it from employer - P takes all 100% because he
found an end around loophole.

Significance: P provided with an end around the Workman's comp. rule. D's are Severally
liable so D's fight among each other to see who is more liable- in this case employer was 90%.
Sure beats getting shitty money from the workman’s compensation act.

E. CIF with Medical Cases

• Medical Profession has an exact way of knowing tumor size and growing rate. They rate
cancer chance of survival by size of tumor.

• Herskovitz v. Group Health Cooperative: Group Health negligently failed to diagnose

decedents cancer on his first visit thus causing a 14% reduction in his chances of survival.
He had less than a 50% chance of survival even on his first visit (39%-25%)

P-Need a legal incentive for due care. Must be liable for loss of chance, otherwise Dr’s would
not be held responsible when negligent with patient that has less than 50% chance of living.

D-Economic rationale. Don't compensate for people who probably would have died anyway
(less than 50% chance of survival to begin with).

R- P didn't need to show 51% chance of survival for hospital to be negligent. P lost 14% of his
life b/c of the negligent act of D, so award 14% for premature death. [loss of chance doctrine]:
otherwise doctor's would have no reason to be careful when P has less than 50% chance of
survival. Relaxed Causation: Only have to prove the percentage lost. So P will get that

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percentage.

Negligence

Negligence Question: Would a reasonable person have foreseen a risk of injury?

Generally: the tort of “negligence” occurs when Ds conduct imposes an unreasonable risk upon
another, which results in an injury to that other, thus causing a breach of that duty. The negligent
tortfeasor’s mental state is irrelevant (all that matter is the reasonable person),

Prima facie case of negligence: Ps case.

1. Duty: D has an obligation to conduct himself according to a standard, so as to avoid

against an unreasonable risk of injury to others.

2. Breach of Duty: D fails to perform obligation according to the standard of reasonable

care.

3. CIF/PC: Causal relationship b/t D's conduct and P's actual harm

4. Damages: Actual damage was suffered by P.

A. 3 Defenses to Negligence
1. Contributory Negligence- any amount of fault on part of P that causes the P’s own injury
will cut off his right to recover against the D.
2. Comparative Negligence- recovery for the P is equal to the amount of damages he suffers
minus those damages attributable to him or in essence the amount of his fault causing the
relationship. Here the P will recover the percentage to which he did not contribute.
3. Assumption of Risk- P recovery is cut off entirely if he voluntarily encountered a known
risk.

Theory of Limited Duty

Rinaldo v. McGovern: Ps car was damaged when D's golf ball left the course and fell on the
windshield of P's car, which was driving on a nearby road.

Ct: D is not liable. D was not exposing public to an unreasonable amount of risk. Nor was Ds
behavior unreasonable. His actions were reasonable and injury was unavoidable. (Kessler
mentioned a tennis example).

Reciprocal Risks: Can't live in a society that derives benefits without imposing some risks.
People are able to do deeds that can cause injury b/c some benefits cause risks for the common
good. Recreational acts such as Golf is a benefit we are willing to give people if that means a car
might get hit every now and then. After all, it is not foreseeable that his golf ball will hook and
then hit the car.

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Balance: Want to protect society by people being careful. Impose obligation to think ahead when
carelessness will cause injury. Deterrent effect for D's in the future. How much foresight is Calc.
of Risk. Leads to next topic:

A. NEGLIGENCE: Calculus of Risk: (Antecedent Neg. also in section)

Defined: Test requires a "balancing of interests" to deter. Whether risks taken by D are justified.

P argues that D is negligent because: Some inexpensive precaution (railing, warning) could
have prevented a serious injury that was likely to occur.

Ds rationale for not taking precautions: The precaution was excessively costly, redundant,
ineffective or counterproductive.

• U.S. v. Carroll Towing

D was moving a line of barges in and out of Harbor. P's barge broke away and was carried by the
tide into a tanker which broke a hole through the hull of the barge. P's employee was not on the
barge for 21 hours, including at the time of the accident.

CT: D was contributory negligent b/c the Burden of having an employee on the ship was less than
the P & L of not taking the precautions.

Rule: Hand's Formula for potential Ds:

a) B < PL = Liability exists. Translates issue into $$$. Because Burden is low for D to take
simple easy precautions- lower than the probability x the loss: D should have taken
reasonable uncostly precautions because it burdens them very little anyway to take that
better or reasonable care.

b) B > PL= No liability. Burden of safety was too large to impose.

c) B= PL = No Liability. Burden was too much to take precautions.

d) B = burden of adequate precautions against the accident=cost of prevention.

1) P = probability of event occurring

2) L = loss, the gravity of the resulting injury,(severity) evaluate the situation as reasonably
foreseen and knowable.

BPL ANALYSIS: Jury decides after the fact what companies should have done before the act.

Before: Company is calc. estimating the future (Foreseeablility) and how much of a B it is.

After: Jury must decide if company acted carefully. Look @ time b/f act (not after the fact),
Benefits P greatly

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2) BPL is a two tiered approach:

a) Does D have a duty to P?

1) If No, then BPL doesn't apply.

b) If yes, then use BPL to determine if safety measure should have been taken

Key question to use to see if formula applies:

Would society be better off if all D's in this D's position were permitted to act as this D did
or instead required to change their conduct as to avoid the kind of risk which caused P's
injury?

Blythe v. Birmingham Water works: D didn't bury pipes far enough down, but they had the
requisite amount that was needed initially.

P claim: D should have known that this was dangerous being that the pipes did burst after all.

Ex. B (Construction Costs) < PL (chance of pipes bursting)

Ds claim: BUT here, D dug a reasonable amount based on what they needed intially. Therefore,
B > PL.

CT: D not liable. Due to circumstances, no reasonable person would have dug them any lower.
Cannot impose liability for act of God that was unforeseeable.

Emergency Exception to B < PL

Same standard except emergency conditions are added to the formula of how a reasonable person
in those circumstances would act.

• Eckert v. LIRR: P dies attempting to rescue a small child from the path of a negligently
operated train owned by D. Deceased ran and threw child off the tracks, but was stuck by
the train and died.

D Claim: P is contributorily negligent of running on tracts, thus barring recovery for P.

2) Rule: Reasonableness of the risk depends on:

a) probability of success in saving the thing (magnitude of risk)

b) value of the thing to be saved.

Ct: If this was anything but a human life, or if the P acted rashly or recklessly than it would have
been contributory negligence. In an emergency situation, the element of time is a factor of the
reasonableness. Eckert did not have the time, split second decision & Majority wants to
encourage heroism.

Transferred duty Rule: Eckert represents the fact that a D who breaches its duty to someone,
also breaches a duty to all of the people who might rescue that person. So D was operating RR

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negligently, breached duty to infant, so because he went to save baby they breached duty to
Eckert.

• Osborne v. Montgomery – Someone opens his car door when a kid riding his bike gets
nailed in the process. The court held that if one exercises a degree of care that another
ordinarily exercises under the same or similar circumstances he should not be held liable.
Here D is not liable since he used reasonable care.
• Cooley(P) v. Public Service Co.: D had un-insulated power lines above and at 90 degree
angles to telephone lines operated by D phone co. Severe storm, power lines snap and
fall on lines causing a loud noise causing a rare neurosis in P.

2) Application of BPL:

B = Cost of putting up safety baskets

1) costs of basket 2) Installation costs 3) Risk of possible electrocution

P = the probability that these two wires would come in contact making a loud noise & the
probability that if that happens, that it would cause the neurosis (Rare chance)

L = severe neuroses

P claims: D should have set up mesh basket to protect wired from falling on telephone wire.

CT: P must show a viable alternative. Here, alternative would have caused a higher risk of
electrocution to the people on ground level while taking rare chance of neurosis away to this
individual P. Burden too high for D and bad for society.

IMPORTANT SHIT: P can claim no negligence if: 1) it is not foreseeable to D that the exact
accident will happen. 2) It is not foreseeable to D that the exact accident type will happen
(chickenhawks). 3) There is no safer alternative (Cooley). 4) P caused the event to occur.

• CHICKENHAWKS HYPO: Everyone knows of chickenhawks in aerial battle, too

close to power lines, barn burns down.

D claim: Unavoidable injury. Would have cost more $ that the probability of this occurring. It is
not foreseeable that chickenhawks will do this damage. So B >PL

P claim and CT: Specific facts were unforeseeable, but something else generally very easily that
is foreseeable and similar to the chickenhawks could have done this (wet branches) and that could
cause a sever injury.

***P=Unforeseeable Specific injury based on Facts but Foreseeable general injury.

L=High b/c electricity is dangerous/deadly.

B=of maintaining fence is high.

When B & L are high, just need a little P for D to be liable. Here, D was liable for a "foreseeable
injury" as this situation was generally too dangerous. When death is involved need to do

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anything you can to avoid it.

• Catch point RR hypo: boys in RR yard, break into cart, push cart down hill. P gets hit by
cart. Catch point was open so wheels were not stopped. P sues RR co. b/c boys are poor
and RR has deep pockets

P claim: D left catch point open, so foreseeable injury. No burden to close the catch point
because there are wheel locks so B < PL (so burden is really low) as the severity could be huge
damage, like hurting someone here.

D claim: First, those punk kids opened the catch point so kids are independent intervening actors.
Second, Burden isn't only the catch point, but patrolling whole RR yard. Burden is too large to
stop all from entering.

• Chem Teacher hypo

F-Oil co. gave chem teachers different oils for display. They are actually dyed waters. It is a bad
idea to send oil through the mail. Teacher puts sodium into bottle (not volatile in kerosene) and
bottle blows up. H20 & sodium are explosive together, but bottle didn't say water on label,
teacher had no way of knowing it was H20.

D claim: We did nothing wrong b/c water is safer than oil. Probability of injury with water is
zero. Burden < zero (that being the probability) times any L.

P claim: Burden is really low for D. They should have taken better care because it costs them
nothing anyway and there is some forseeability that something can go wrong. Mislabeled bottles
are dangerous. In real world, H20 is safer than oil, but not in chem lab when mislabeled. In chem
lab, D should have foreseen it improperly being used and causing risk-- like Chickenhawks,
where can't foresee the sodium accident, but generally can foresee accident under
circumstances.

• Airplane Hypo: Plane is coming at another plane. The pilot dives 500 ft. to avoid the
accident. They were near military base and if the pilot leaned forward, they would have
been able to see the fighter plane. During dive, P hits her head on the ceiling.

D claim: We had to dive to avoid plane, which saved your life. We Cannot be liable.

P claim: I admit you dived for my safety. BUT, look at antecedent negligence. Once u knew u
were near the military base, u should have been looking out window for planes. The B (looking
out the window for other planes) is < PL. Because we look to the acts before the actual dive
occurred. Sure he did save her life but he was negligent before that act and knew he was
supposed to take better care or should have known to take better care and since he did not it
caused him to dive and then save her life. This is like guy with seizure problems getting in a car
and then his seizure kills someone. Seizure guy is liable because he should have been smart and
not gotten in the car knowing he has these problems.

Forseeability: Conduct is negligent when injury is foreseeable. If Burden of doing something

differently is less than Forseeability, then there is Negligence.

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Antecedent Negligence: D did good, but they weren't Careful. Look at the events BEFORE the
act to see how they were put in that position in the 1st place. 1. Did he know? 2. Should he have
known?

• Rotten Wood fence hypo: Rotten wood fence is around a house in a poor neighborhood.
Child was playing near it and the fence was so rotten that it fell on a child, P.

D claim: I am too poor to fix the fence. Sorry.

P claim: you own a house so you can't be that poor. Take out a mortgage to fix the fence.
Downscale lifestyle. * D probably has insurance or she wouldn't be sued.
Rule: Poverty is not an excuse to create an unreasonable risk.

• Person burning his face hypo: P fainted in a RR bathroom and burns his face on pipes.

P- RR should take reasonable care. The burden is not that high for them to cover up the pipes
knowing that many customers are aboard all the time.

D- Burden would be way too high to cover up all the pipes. Moreover, it is just not that
foreseeable that people will be fainting in the bathroom and even if they did, injury would not be
that severe.

B. NEGLIGENCE: Reasonable Person Standard.

Defined conduct:

a. Negligence occurs when an indiv.'s actions fall below a standard of conduct imposed by
law which protects others against unreas. risk of harm.

b. Reasonable people should anticipate risk of harm.

c. An individual acts unreasonably by not guarding against risk of harm which should be
apparent.

Objective Standard i.e., Conduct measured against what the average person would do RP is
considered to have the same physical characteristics as D (but one is expected to know one's
physical handicaps and to exercise the care of a person with such knowledge).

Question posed: Would a RP of ordinary prudence in the position of the D conduct himself
as the D did? Foreseeable **Known and should have known Test. . . . Even if under the
known test, one isn't neg., D can still be liable under should have known test.

Vaughan v. Menlove (Reasonable Person Standard is not altered by personal limits) (Stupidity
and Reasonable person)

F- D made a stack of hay near the boundary of the two properties. P warned D of the risks of this.
D said he would chance it. Hay caught on fire and burns P's prop. down.

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D claim: I am dumb. I should be judged by my own subjective std.

CT: The court uses an objective std. of behavior (what would a RP have done?)

A) The RP std. always involves risk avoidance

B) Must ask "did the D do what a RP would have done?"

Q. What would a RP have known of available and costs of alternate forms of conducts (cost of
avoidance/should have known to do).

RP should be a person of normal faculties. Need objectivity as there could be incentive to fake it.
Here, D was given a warning. Should have known warning came from someone smarter then him.

• Roberts v. Ring (Physical infirmities and RP)

F-Robert's, P's son, age 7 was struck while crossing a busy street by a car driven by Ring, D, age
77. D was driving only four m.p.h., but his sight and hearing were defective.

R-When driving, the court refuses to lower the standard of care, the old man's infirmities
hurt him. He is held to a standard of care of a driver, a well seeing, hearing person. If he
couldn't see or hear, he should not be driving.

• Cityslicker Hypo--(Ignorant and RP)

F-Guy made a fortune in the stock market. Buys a farm upstate. Workers cut down the hay and he
stacks it. Hay catches on fire and burns neighbor's house down.

D-Not dumb, but ignorant. I had no idea hay would catch fire, I'm not a farmer for that long.

R- We look to a reasonable person in the same situation and knowledge and background.

RP with Ignorance, & Physical Disability

Ignorance: RP based on a person in his position. (Cityslicker example).

Disability: RP with a prosthetic leg. Should he have known his leg would burn near a fire?
Disabled person can be held liable if he put himself in a position that a reasonable person with the
same condition would not have done.

Epilepsy: Held to RP std. if he knew he was subject to a seizure.

• Foghorn hypo (RP and actual knowledge)

F-Driving near cliff on foggy day. She sees a boat driving onto land. She starts beeping the horn
to stop him. Boat starts moving towards horn thinking it was a navigation signal. P (guy on the
boat): D should have realized horn blowing is the signal for navigation.

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D and CT: Didn't know it was the signal. No reason she should have known what a horn meant
in maritime situation. No actual knowledge.

• 2 Brothers accident hypo: 2 brothers, one is teaching the other how to drive and the car is
a manual shift. Practice in the parking lot, then on a road, sees a pole, tried to hit brake,
but gets confused and hits the clutch.

P claim: D knew he couldn't drive and should have known that he was exposing others to an
unreasonable risk.

D claim: I knew the risks, but I thought I was doing something to lessen the risks. I thought
I was pressing the brakes and I am a beginner so I do not know better.

CT: Even a reasonable beginner knows or should have known the difference b/t the clutch and
brake. Mistake was unreasonable for a beginner.

• Daniels v. Evans (Adult activity rule: Kid driving motorcycle) (RP and youth standard)

F- P a boy was killed when the motorcycle he was driving collided with D's car.

R-When a minor participates in an activity that can result in grave danger and is usually
performance by an adult, the minor will be held to the standard of care of an adult.

Efficiency argument: A driver can't see who is driving the other car and is expecting an adult
level of care, less accidents. Legislature made all traffic rules apply to all drivers. When minors
engaged in activities appropriate to their age and experience, then they are entitled to be
judged by the standards of their age and experience.

• Lawnmower Tag hypo: 2 boys riding their lawnmower. Play tag while mowing lawns. D
loses control and mower takes off the foot of P.

P claim: D knew or should have known that playing this game would be dangerous. Since he
was doing an adult activity, no child standard.

D claim: Is riding a lawnmower an adult activity? In Daniels, u needed a license. Here, you do
not. There is no std. clearly for adults, but also for children. Should Hold kid to a 13 yr. old RP
standard in this situation.

General Rule for kids: Held to a lower std. of care. Std. Is based on conduct of a child of
reasonable age, intelligence and experience. Applicable when minor is engaged in an activity
that is uniquely appropriate to children. When doing an adult act, held to that higher standard.

Breuning v. American Family Insurance Co. ( RP & Mental disability) (fly like batman)- sort of
like Roberts v. Ring case with old man and infirmities.

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F- P's car was struck by Erma, an insured of D. Erma suffered an insane delusion, seeing P's truck
coming and believing she could fly like Batman, stepped on the gas to become airborne and
crashed into P.

R-Here, D's insured had a history of delusions, so insanity defense does not apply. When Erma
entered car she was not suffering from a delusion, knew that she had sporadic ones, and therefore,
should have known that she should not drive.

*There is no negligence when one is afflicted w/ a sudden unforeseeable insanity/delusion that

blurs understanding (similar to a heart attack, stroke "Flipping Out"). Special rule for Crazy
people that know they can flip out at any point.

Test: If the insanity makes it impossible for D to either know her duty or to conform to her duty
than the insanity defense is good. The purpose of law is to give D's something to think about,
punishing a person who would not know of her duty would do no good.

Insanity: An insane person will be held liable for his negligence under the RP std. (Not
reasonable insane P). This insane person should have known not to get in a car because he could
flip out.

Drunk Driving Cases: Held to reasonable sober person standard. Apply by saying not picking a
designated driver prior to going to the party is negligent act. Should have known u would get
drunk (Antecedent Negligence- it is this prior act of not getting the designated driver that is
negligent, not necessarily what directly came about from your drunkenness). However if P leaves
a hole uncovered and P, the drunkard falls through, D is liable since D had to show reasonable
care to all.

Sudden Emergency Doctrine: if one commits an act that was negligent but it was the result of a
sudden emergency not from their own negligence then they are held to a reasonable person
standard in that position.

Hypo: What if you are driving and someone jumps out and you hit and kill them after trying to
stop? Negligence is about carefulness, not the results. So, if you were speeding, you might not
have shown reasonable care. Although D would still say that had he been going slower, he
cannot stop people from jumping in front of his car so it would not have mattered that he was
speeding and that was not the cause in fact.

Hypo: Cop is going down the turnpike and is in the left lane. Cop recognizes one of two people
on the side being a drug dealer so cop slows down and switches lanes to get a better view. As he
drives by, the drug dealer intentionally pushed the other guy in front of the cop car and P now
wants to sue cop and Nassau County. Cop has a duty to show reasonable care in avoiding
pedestrians. So, cop would say that he did show reasonable care, he slowed down when
switching lanes. P could make a good argument though and say that cop knew it was a drug
dealer and getting closer was not showing reasonable care because the cop knows the drug dealer
could do something stupid, especially on the turnpike when there is no sidewalk.

Medical Hypo: Young person gets routine eye surgery. General anaesthesiologist present. Patient
has heart attack. Anesthesiologist pounds on his chest to revive. Also, calls a cardiologist. Takes
cardio guy 6 minutes to get there. Child partially brain dead when he does arrive. Cardio guy tells
P to sue eye doctor.

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P claim: Eye Dr. is negligent b/c he knew there is a foreseeable risk with medical procedure and
should have 1. Had a chest surgeon present 2. Known the procedure himself. B < PL b/c burden
was low in having Dr. around since they are in a hospital and PL is high with chance of death.

D claim: B is huge on us to have dr. on immediate call as that would cost a shitload of money.
Also, small PL when there is an EYE exam that a heart problem would arise.

Lucy Webb Hayes hypo: Crazy woman was in a mental hospital b/c she was suicidal. Walking
with nurse in a locked ward when she gets away and jumps out unlocked window and dies.

P claim: Sue mental hospital. This was foreseeable. Only sent one nurse, who you knew wasn't
strong enough to restrain the decedent. Should have had better training. Ds were 1) unreasonable
and careless and 2) D had a duty to protect P. Both of these requirements were not met.

Also, knew of danger. B <PL. Small Burden of locking the windows. Should have known this
was necessary in a mental ward and std. of care is to lock things up usually.

• Dirt Road Hypo: Many drive on one part of the road. Dirt road in country with few
houses. 2 cars hit. D is being sued by passenger in front seat of his car.

Guest Statutes in Automobiles: Only in a FEW states: If a non-paying passenger in a car is

injured and sues the driver, the driver is not liable UNLESS he is Grossly negligent, reckless,
willful, or wanton. Most: Guest is owed a duty of ordinary care.

CT: Not liable here b/c action wasn't gross etc. D has less of a duty to a passenger.

Policy: This prevents friends from faking accident to collect money from insurance companies.

Hypo: P suffered brain damage when Dr could not perform a heart massage. The rule here is that
Dr’s have a duty to patients to be able to perform sudden medical procedures or have someone
around that can. Dr is liable here since burden is high but L (severity/injury is real high)
considering a life is at stake.

C. NEGLIGENCE: Custom

• Defined: admissible as evidence to demonstrate reasonableness and the standard of

care owed, but it is never conclusive. A custom may be found to be negligent.

It can be of great significance to P he shows consistent conduct of an entire industry that D did
not implement.

Three views on Conduct:

1. If the D shows he conformed to custom, directed V. Titus

2. Custom is only evidence

3. Evidence of custom should not be admitted (Mayhew )

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- Modern view: custom can be used as evidence in a case when the issues of burden and
forseeability are reasonably presented to the jury.

RR whistle hypo: Unmarked RR crossing and train hits P and dies. The whistle on the train
was at 92 decibels, but he didn't hear it with the radio on and the windows up.

P claim: The whistle should have been louder. RR should know people drive with radio on and
windows up. Predictable some would not here. B (louder whistle) < PL (not hearing and getting
hit)

D claim: Expert testifies that 92 is the industry standard. It is the legal/uniform policy of ALL
the RR's. Burden too high to impose a higher duty than the industry. Common practice suggests
this hasn't led to many accidents. Reason its not louder: RR goes through residential
neighborhood.

• Titus v. Bradford RR--Employee of RR killed b/c Broad gauge RR car was switched onto
a narrow gauged track.

Old Rule: No person should be held to a higher standard than the industry. Directed Verdict.

Rule for this case: nobody can be liable if the is in conformity with custom as long as it is a
reasonable custom.

• Mayhew v. Sullivan--Overturns Titus

F-P fell through an unguarded and unlighted hole that had been cut in a platform.

D claim: WE conformed to custom in exercising average ordinary care.

Rule: Evidence of Custom should not be permitted. Custom isn't admissible where conduct is
obviously dangerous. Even if entire industry does it, you can still be negligent. The hole was
neither guarded nor lighted, which is dangerous.

• TJ Hooper--custom is downgraded

F-Not all tugs are equipped with radios. This one didn't have it and an accident ensued.

R-Since not all tugs had radios, not a custom. B (radios) < PL (danger of accident w/out
communic.)

General Rule: regardless of custom, D will be held liable if his actions fall beneath the standard
of an ordinary prudent man.

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 • Lucy Webb Hayes-revisited.

P claim: D has own std. of care set up to ensure safety. They didn't comply with it, and should be
guilty of breaking their own standard (custom). They did not board up the windows, as most
in the industry would and as they usually did.

Assume Custom has been set

1. Can introduce custom as an element to show reasonable behavior. If D performs higher than
the customary level, that adds evidence of D acting reasonable, chance of Dir. V

2. Hand's opin. in Hooper is persuasive. Custom is only evidence and not conclusive.

a. Where D performs at industry level, & Ct. Believes act is negligent, they will find it
unreasonable

b. Where D performs below custom, this shows unreasonableness even if the industry is
performing at very high levels.

• Custom in Medical Malpractice cases

Medicine is specialized field and need specialized info to determine negligence. Std. becomes one
of a reasonable doctor. Std. of care for professionals becomes std. of care for the profession. An
expert in the field is a necessary ingredient in determining negligence. D's professional
negligence can ONLY be shown through an expert. Need medical knowledge to figure out B <
PL

Std. Of Care for a Doctor: Would a reasonable doctor do what this doctor did? (Did the Dr. act
w/in the conformity of a reasonable Dr.?)

Distinction of Std.: Reasonable doctor is what an actual doctor would do, not what a jury thinks
a reasonable person w/ knowledge and experience of a doctor would do.

Experts must prove 2 things to get past a DV:

1. There is a standard course of conduct in this situation, tell what it is. . .

2. D departed from this standard and was negligent in doing so.

Exception to needing expert: If D's negligence is so blatant that a laymen can determine
negligence, no expert is needed. Ex. Leaving sponges in patient.

Even if a certain practice is a standard of certain communities, this does not mean it isn't
negligent. Specialists are judged by nationals standards and not the community standard.

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 • Callipholus hypo

F-Missouri town has 2k people. P goes to local Dr. who says he has callipholus. Only help is
medication that has substantial side effects. P takes medication. Has long term injury. Sues Dr.b/c
patients didn't have Call.

P- Sues for Medical Malpractice. Dr. violated the std. of care of a reasonable Dr. After all, I
did not have Call and I still got all these side effects from the medicine for it.

D claim: I may have committed ordinary negligence, but not special negligence like Med Mal.

New Fact: P gets a NY Dr. to fly in and testify in Missouri.

Ct: Standard is one of a Dr. in the community or the surrounding area. Ex. New info takes
time to get to these places, as opposed to the big city.

• Brune v. Belinkoff

R-Overruled locality rule. Generally accepted standard is one of the average qualified Dr, taking
into account advances in the profession. Dr must exercise degree of care and skill a reasonably
competent practitioner in his field exercises under similar circumstances.

Lamas v. Boras: Dr did not use conservative treatment and was found to be the cause in fact of
the first operation.

Rule: a Dr must use that degree of skill and learning which is normally used and possessed by
doctors in good standing, in a similar practice, in a similar circumstance, and under like
circumstances.

Helling v. Carey: Dr. didn't give P a routine eye exam.

D claim: std. of the profession do not require routine pressure tests. We followed custom.

CT: B (simple test) < PL (saving injury). Tests are easy and risk is high. D is negligent.

Legislature overruled Helling: test price may be small, but adds up if done everywhere.

New hypo Fact: Dr. never told the patient there could be severe side effects.

P: Sues for informed consent. The Dr. must inform patient of risks of proposed treatment.

1) Must inform patient of material risks that a reasonable person would take into account in
deciding whether to go with an operation. Failure to get consent can lead to a battery
charge.

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 2) Required to disclose diagnosis, material risks, prognosis, and alternative medical
treatments and then get patient consent.

- Informed Consent: Required to disclose diagnosis, material risks, prognosis, and alternative
medical treatments and obtain patient consent to treatment.

Modern Std: Would a reasonable patient (subjective intent is meaningless) have withheld
consent if doctor made a proper disclosure. Burden is on Doctor here.

• Full Disclosure is not necessary when:

1. Emergency sit. where patient is unconscious or incapable of consenting.

2. Patient is emotionally unstable & can hurt his well being not to perform operation.

• Canterbury v. Spence

F-Dr. performed operation that hurt P's spine. He didn't disclose risk before operation.

P-Dr. did not reveal the risk of paralysis, makes out a Prima Facie case of violation of the
physician's duty to disclose.

Ct: Dr.'s informed consent doesn't have to be full disclosure, but enough to match patients need to
make an informed decision. A doctor is not required to tell if an average sophisticated person
would be aware of, such as infection.

D. NEGLIGENCE: Per Se. . .Statutes

• Defined: A criminal statute is good evidence of what the people/legislature in society

think ought to be rules governing their behavior. A violation of a stat. will be neg. PS.

• It's a Strict Liability standard. Once you violate it, it's Neg. PS. D cannot claim to the
jury that their action was reasonable.

• Burden of Persuasion is on the P: It's the amount of evidence needed to get to the jury.
Neg PS gets you to the jury. Statute becomes the Standard of care we all have to meet.
Once std. of care is set, it's easy to determine if it was violated or not, the Jury doesn't
have to decide this.

Jury can decide if: Ex. Speed limit is 55. Ct. is not sure if she was going above this. If they
determine she was, automatically then Neg. PS.

• Steps to use a statute in negligence per se:

A) Violation of a valid statute

B) The statute is a safety statute

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C) P is in the protected class of people that legislature had intended to protect

D) Whether P is injured in a manner that legislature had intended & foreseen

E) No excuse for violating (would need heavy burden for D to prove being that this is a
strict liability offense).

Then one needs to show a causal link between the statute and the harm inflicted.

• Gorris v. Scott: Safety Statute: Sheep on ships should be in pens to keep from getting
diseases. Windstorm came and sheep weren't locked up and they flew overboard.

P claim: Neg PS b/c breaking the statute was the CIF of the sheep falling overboard. They
believe that the court must try and deter behavior b/c if the D followed the statute, the sheep
would be fine.

D claim: Legislature intended statute to reduce disease. It had nothing to do with sheep & storms.
Statute was for another purpose so D wins.

• Stimpson: Here the ct. said some statutes have dual/secondary purposes.

• Ross v. Hartman--Leaving keys in car statute

F-D left keys in car and thief stole car. Thief runs someone over and they die.

P-Neg PS for violating statute by leaving keys in the car. (Statute was silent regarding thieves)

D-No Neg PS b/c intent of statute was for insurance, not meant for risk of thieves driving
harmfully (like Gorris). Car was parked in fine area so there was no unreasonable/foreseeable
risk.

Congress: Has a problem: Insurance PAC wants the no keys in car to stay, but cannot impose
liability on person in Ross's situation.

Solution: AMEND statute and create an EXCEPTION.

• Martin v. Herzog: Martin is killed in a collision, violating a statute that requires one to
drive with lights on.

P-D violated duty of care, driving negligently. Not negligent to drive with lights off.

D claim: Buggy didn't have lights on, violating statute, contributory Neg PS.

Ct: agrees. P's violation of the standard led to the injury. The omission to perform a statutory
duty is Neg PS.

Exception: if there is a statute to walk on one side of the street only. P does not and dies. P
could have a totally good reason, such as the other side was too crowded and he would be in

23
grave danger to be on that side. Here a general rule of conduct protects life so P is not neg per
se. He took extra precaution because following the statute would have put him in harms way.

• Brown v. Shyne--Licensing Statutes

F-P employed D to give chiropractic treatment although D had no license to practice, in violation
of public health law. P became paralyzed after receiving the treatment from the "doctor".

R-P must prove D failed to exercise the care and skill that would have been exercised by a
licensed practitioner. This may not be inferred from the fact that D was not licensed. Assume that
D acted as a reasonable Dr. D had to meet that std. even though he didn't have a license, so he
met the duty.

Today: Brown was modified. No license is now admissible for Prima Facie, not Neg PS

*Prima Facia: Creates a rebuttable presumption. Legally sufficient to get to jury. Enough
to prevent a DV.

*Admissible: Judge still looks at all the evidence, so DV is still possible.

• No license hypo: Car accident. No idea what went wrong, but D has no license.

P-License is regular safety standards, & breaking statute is Neg PS. Also, driving without a
license is CIF of the injury b/c if following the law, you wouldn't have been driving at all.

**D-Lack of a license isn't basis for Neg PS. I could have been driving reasonably (Not
admissible under Brown)

• Vesely v. Sager: D owned tavern. Sold alcohol to co-D. He left bar, was in a car accident
w/ P. Dram Shop Laws Statute: Anyone who sells alcohol to an obviously intoxicated
person is guilty.

P- D has a duty of care to P or class of persons if which he is a member. Also, Neg PS

D-Bar owner didn't do anything to P. No duty. Didn't drive car, wasn't drinking. The driver was
an independent (not under control of bar when in the car), intervening (act came after bar) Act.

R-P is within class that statute is trying to protect, injuries were ones the statute tried to
prevent. D violated statute which is the proximate cause to P's injuries, so D was neg. in serving
alcohol to P. Not to mention the driver is liable also since intoxication is not an excuse and he is
held to the reasonable sober person standard. The driver should have arranged for someone else
to drive when he was sober (antecedent crap again).

Dram Shop Laws: Look at it in retrospect. Bar owner may not be able to tell if he is visibly
drunk, if he will be driving, if they will get alcohol from another bar-- but still liable. So Bar's get
insurance. Court felt that it is not unreasonable to expect a commercial vendor who sells alcoholic
beverages on his premises to a person in which he knows or should know from the circumstances
is already intoxicated, to foresee the risk of harm to others who may be injured by such a persons

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impaired ability to work a car. This is meant as a policy to try to get drunk drivers off the road
since a car is a very lethal weapon.

Employer: If u have open bar, not liable in NY, yes in NJ. Less control over someone w/ open
bar.

Homeowner: Person comes to house and gets drunk. Not liable in NY, yes in NJ.

• Superfreak drunk hypo: Went to a bar and had 2 drinks in 1 hour. Then went to a house
party and had more. Then a final nightcap at Rocco's bar. Then in an accident.

Ct: In NY, can't sue the homeowner and bar owner will blame the house party. Rocco's bar will
claim he was not obviously drunk when serving him, a defense under the statute.

E. NEGLIGENCE: Judge and Jury

• Defined: What is the proper balance between judge and jury in deciding cases.

• Judge grants a DV when facts are so 1 sided that "no reasonable men could differ".
Judge must decide if any facts have been established from which Negligence may be
inferred.--> If yes, goes to jury.

• Jury: Determine facts about which reasonable men can differ. They decide if 1.What
really happened (credibility of witness) and 2. Did D breach his duty of care in a way that
caused P's injury?

• B & O RR v. Goodman: Run down @ RR crossing

R-Court created a special duty that people who cross RR tracks have to protect themselves, i.e.
duty to Stop, Look and Listen (SLL). Cts. Created a Fact Specific Rule (FSR) for this case.
Courts were concerned with allowing a P that was negligent to recover for Negligence. Here there
was directed verdict because P did not stop look and listen.

Benefit of Fact specific rule: Provides consistency in making sure certain types of cases are
decided in certain ways. Easier for directed verdict for the D. Right rule for the act.

Ex. Usually for DV-- Can RP differ, on preponderance of the evidence, that D was negligent?

With ct's FSR --Did the P SLL before crossing the RR tracks and Can RP differ if person SLL?

• Pokora v. Wabash--limits Goodman: P was injured when car hit by train obscured by RR
cars left at crossing, even after he SL & L.

R-P can't see everything. Jury should decide if conduct was suitable for the situation where the
ordinary safeguards (SL&L) failed him. Ct has no problem doing this b/c SLL is a judge made
law.
Jewell v. CSX Transportation, Inc. – (Greg Jewell was killed and his wife and daughter were
injured when their truck was struck by an oncoming train.) Crossing was maintained with cross
bucks but no lights, bells or mechanical gates. Suit alleged that CSX was negligent in failing to

25
sound a warning. Court ruled that since the crossing had no physical obstruction that prevented
sight or sound, it was not extra-hazardous. Whether or not the whistle should have been blown
was a question for the jury. The trial court directed a verdict about the lack of evidence for an
extra-hazardous crossing and the jury’s verdict for the CSX were affirmed.

F. NEGLIGENCE: Res Ipsa Loquitor

Defined: "The thing speaks for itself". *Kessler, only need to prove 2 &3.

Three requirements for to prove:

1. Event does not ordinarily occur without negligence.

2. Must be caused by an agency or instrumentality within the exclusive control of the defendant.

3. Not due to any action on the part of the P.

D’s possible defense:

I showed due care: although just being careful will still get the case to a jury.

Offer alternative explanation besides Ds negligence.

Show that injuries happen without anyone’s negligence.

Show D had no control over the situation or someone else did.

• Hit on the corner hypo: X is standing on the corner. Y is driving the truck. For some
reason, truck starts to turn and hits X. X suffers broken ribs and concussion. Investigation
after shows that the front left rim of the truck was cracked and broken. Q. How is X
going to prove Y's negligence?

Parties involved: Driver, Truck company, Manufacturer.

D(driver)- Truck was maintained fine. I have proof. I drive great.

P- Ease proof by switching duty. Sue on Neg PS b/c there must be a statute not allowing u to
drive on the sidewalk.

D replies: I wasn't “driving” on the sidewalk. Not fair here.

P-sues truck company. Didn't maintain truck properly. Find info on rim maintenance defects
BUT, this is a costly process. . . try and get on RIL. It “had to be his fault for not maintaining the
truck.

P-Convince judge by coming up on sidewalk, he was RIL negligent.

But did driver have "exclusive control"? Not sure. Best bet. . .sue manufacturer.

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P claim: sue rim company b/c manufacturers are always open targets.

• Byrne v. Boadle: P was walking along the street passing D's shop. Barrel fell from shop
window and hit P, injuring her.

P-I've shown it was your warehouse, you had total control, it couldn't move by itself!

D-P didn't show I was negligent. Could have been someone else. Burden is on D to refute Ps res
ipsa claim because it seems P showed that D was probably negligent and there was no other
reason to explain the injury.

R-P wins on RIL. It is circumstantial proof of Negligence, but circumstances lead to the
inference.

• Benedict v. Eppely Hotel: P sat on a chair and it collapsed under her.

P- nothing else can explain why this chair broke. It cannot be my fault so it must be someone
else.

D- once she sat on the chair it was in her exclusive control so we cannot be liable, it is all on P.

H- there was res ipsa because it is not Ps job to check a chair for defects before sitting. She
assumed that chair laid out for her is in proper condition and she was invited to sit there.

• Honea v. Coca Cola: P lifted cases of coke by the bottles as handles. Bottles exploded
hurting his hand. P's in both cases: RIL

D's in both cases: Claim no Exclusive control and custody.

Rule: For possession, does not mean custody and control. D's still have constructive custody
and control over the internal parts you cannot see. Not immediate control over the object.

In Coke : Call customs witness to explain bottle thing and could only happen due to that custom.

• Larson v. St. Francis Hotel (questions provision 2 of the requirements for res ipsa): chair
comes out of window smashing someone on the head during surprise celebration

R-No RIL b/c chair flew out during surprise celebration. Not in the "ordinary course of
events", guests have partial control and since they are not employees, not fair to hold D
responsible. B is too high to put guard at every window! Without custody and control, D cannot
be negligent.

Exclusive control is not limited to actual physical control but applies to the right of control
of the instrumentality which causes the injury; cannot control guests at a surprise party.

• Connolly v. Nicollect Hotal: same as above, except during a planned party.

R-When you are on notice of an event that could produce accident, RIL can apply.

• RIL with multiple D's

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 If there are two or more Ds, and P can show that at least one of Ds had was in control, some
cases allow P to recover. This is especially likely where all Ds participated together in an
integrated relationship.

• Shoe Store Hypo: Sign is hanging in front of a store and it falls on x. X sues Y, the owner
of the store for negligence on hanging up the sign. Examination reveals that a bolt was
sheared so could be architect of sign's fault, maker of the sign, landlord of building in
charge of upkeep. Who do we sue?

P-RIL: My injury couldn't have happened but for the Neg. of the landlord's faulty upkeep.

Use the lease to show that landlord has the exclusive custody/control of inspections. Have
architect, store owner and sign maker all explain they acted perfectly. Landlord only one left!

• Galbraith v. Bush: a passenger in Ds car was injured when the car suddenly swerved
and crashed. Now let’s assume a super guest statute.

H- court says that res ipsa does not apply because the accident might have happened because of a
hidden defect. However, there is still two ways for D to be negligent: 1) driving like a negligent
madman. 2) Did not maintain the car well. If driver drove reasonably and he got an inspection at
a reasonable time, D cannot be liable for res ipsa purposes.

• Miles v. St. Regis: load of logs fell on D and killed decedent because driver moved the
train in reliance of his men.

D- Railroad will say: I gave up my duty and relied on the driver to carry out the operation,
therefore it was out my exclusive control. Driver would say: he cannot delegate the authority to
me.

H- Railroad cannot delegate authority and rely on others carrying out the task even though D did
give partial control to the driver. Overall, it is a non-delegable duty for the RR.

• Rose v. Melody Lane: P sits on a stool and it breaks and then she falls.

P- What the fuck?

D- It was the manufacturer, not I.

H- D cannot delegate the duty within their stores, they have to make sure the stools are in working
condition (kind of like the escalator deal and Benedict in one- it is important that the public is not
harmed when they go grab something to eat so, store is responsible for this, as they still have
constructive control). Had D just got the stool that day, we are talking a different case here.

• Ybarra v. Spangaro--Departure from Exclusive Control.

F-P goes to hospital for appendectomy. 3 doctors, nurses, & anesthesiologist all worked on P.
When he awoke, he had a sharp pain in shoulder which he never had before and eventually
paralysis. This should not have happened if due care was exercised and the harm was in the
exclusive control of this surgeon and all his aides P would say.

R-It is unreasonable to insist that P, who was unconscious, could identify negligent D. Concert
theory: Unit of doctors & nurses had exclusive control over the situation.

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Burden of proof is switched to D--Chief surgeon is in charge of operation and others can be
sued under RIL. Med. personnel have better access to evidence and information than the patient,
and if they remain silent, RIL smokes out the evidence.

**Special Rule: Key fact is Unconsciousness. Heightened duty b/c of helplessness.

Policy: we do not want Doctors remaining silent at the expense of a helpless P. Therefore,
burden shifts to them. (Similar to Summers v. Tice).

• Anderson v. Somberg: When operating, scalpel breaks. Dr. slips and hurts spine, P
paralyzed. P sues Dr., hospital and manufacturer.

Jury-Found for D b/c under RIL, need exclusive control and no one here had it since it
could have been the fault of any of the three Ds.

On appeal: One of them has to be liable. When P is incapacitated and the result should not be a
possible consequence of the operation, someone must be liable according to RIL. *Jury usually
will choose manufacturer: Most money w/ insurance and least sympathetic.

Jury picks in this situation if none if Ds can absolve themselves of the burden.

• Nondelegable duty

Colmenares Vivas v. Sun Alliance Insurance Co.--Application of RIL

1) F-P riding escalator in airport when handrail stopped moving while foot platform continued to
move. P tumbled down steps and was injured. Port Authority and their Insurance Co. were D's. D
tried to sue Westinghouse who was contracted w/ Port Authority to maintain the escalators.

2) Element 1: Injury is ordinarily the result of negligence

a) P would need to prove that handrail on escalator would not stop working w/o negligence.

b) Peters, Hint: When there is a mechanical problem, makes a prima facie case for negligence.
Element 2: Exclusive control

a) Maintaining escalators in a public area is a non-delegable duty: 2 possible situations. Doctrine

of non-delegable duty, expanded version of D

1) Where there is a public authority maintaining a public area

2) Business invitees: the owner of the premises is responsible, and not the individual person who
made the mistake.

D claims & loses: We are responsible to take reasonable precautions to make sure escalator is
safe. It would be negligent for us to do this our-self, so we hire someone who takes on this
responsibility. We did everything we should have.

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 • The Coke Bottle Example

A) F-Coke makes the syrup and supplies it to bottling co., to seal and package the bottles. Bottler
is not Coke, hires delivery trucks who transport bottles to the restaurant storage room. Waitress
opens a bottle and it explodes in her face. use RIL to sue Coke??

B) Element I: Ordinarily a negligent act

1) P would need to prove coke bottles don't explode unless a negligent act by someone

C) Element II: Exclusive control

1) Put affirmative evidence that truck driver is not liable, eliminate as a D

2) Eliminate bottler as a D by testing whether the bottle is designed improperly.

a) Compare to Colemnares: Coke's duty to the public is non-delegable. As the escalator is used
in a public place, coke is used in public restaurants. The public doesn't know all the distribution
processes, it just know this is coke. Just like public knows this is the port authority, it doesn't
know who maintains the escalators.

D) Accessibility of Information

1) First associate the bottler w/ Coke through the doctrine of non-delegable duty and then argue
that this expanded version of D would have better access to what went on in the bottling and
transportation operations than would the waitress. This disparity is enough B/c

a) it's similar to Ybarro where the doctor's knew who performed the negligent act. Here, by
holding Coke responsible, it may help in finding who is specifically responsible for the negligent
act. Furthermore, in this case, the waitress doesn't know who performed the negligent act. She's
like the unconscious P in Ybarro b/c it is impossible for her to know who caused the act b/c she is
a laywoman and does not know the coke process. Coke has the information, as the doctors had
the info to know who committed the negligent act. So since D and not P had access to this
information, RIL should apply.

E) Defense: BPL

1) Coke can argue that the probability of this occurring is so low that the burden to redesign a
bottle or manufacturing process would be too great. So they are not negligent.

2) But P would come back and say a warning label would cost very little, low B. So D is
negligent, and did not act reasonably for not putting on a warning label.

DEFENSES TO NEGLIGENCE

A. Contributory Negligence

• Defined: P's conduct which contributes to the legal cause of their own injury. At
common law, contributory negligence barred P from recovery.

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 • Karate jump hypo: Lukoff jumps at car coming at her. She thinks that the only way to
avoid it hitting her is by doing this. Car was driving fast & close, but if she didn't jump, it
wouldn't have hit her. 2 CIF: L jumping up and the D driving dangerously. *Misconduct
by both, same nature, acted unreasonable leading to injury.

If both hurt, whoever was hurt the most will be the one suing. With CN, both will pay for their
own injuries. Therefore, P cannot recover. This is a Deterrent factor b/c if P won, no deterrence
from acting negligently.

• Jaywalking hypo: A is driving with defective brakes (exposing many to injury). B is

jaywalking (exposing himself only to injury). A hits B. The general risk to society that B
poses is < than A. Nature of irresponsibility is different. On a moral plane, both are
wrong, but B is less wrong.

Common law: B was less negligent, but still neg, so you get nothing. . .Then it changed.

Neg PS: If A brakes a safety statute, B's CN isn't a defense and A is liable.
• Beems v. Chicago, Rock Island & Peoria R.R. Co. – (Plaintiff went in
between the train cars to uncouple them when they were moving at an improper
rate of speed. Plaintiff had made a sign to check the speed of the cars and that
was not done.) Court held that contributory negligence is not necessarily a
complete bar to recovery when the negligence of the defendant is what
caused the injury. Plaintiff was not the proximate cause.
• Gyerman v. United States Lines Co. – (Unloading improperly stacked
fishmeal sacks.) Plaintiff was required to report the condition to his supervisor
and not the supervisor of the warehouse. The court held that the record did not
show that the plaintiff’s failure to report the dangerous condition was a
substantial factor in bringing about the fall of the sacks. They concluded that
the defendant did not meet its burden of proving that plaintiff’s contributory
negligence was a proximate cause of his injuries.
• Smithwick v. Hall & Upson Co. – (Platform outside the icehouse had no
railing. Plaintiff was warned to be careful and not go to the east side. While
working the entire icehouse buckled and plaintiff fell.) Defendant argued that the
plaintiff was contributorily negligent because he was working in an area that he
had been told not to. The court ruled that while the plaintiff, by working at the
east end of the platform, may have been negligent with respect to the danger of
slipping and falling, he was not negligent with respect to the danger that
actually occurred. His conduct was a proximate cause of his injuries but
was only a “mere condition” thereof, because his own harm did not “fall
within the risk” of the types of injuries that generated the duty to take care
in the first instance.

• Leroy Fibre Co. v. Chicago, Milawaukee & St. Paul Railway -(RR cause flax to burn)

Facts-P stored flax on his property about 70 ft from RR's right of way. D had negligently operated
RR by allowing it to emit large quantities of sparks, causing P's stack of flax to be destroyed.

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D- P should be CN b/c he stacked too close to the tracks. P knew or should have known there was
a risk.

P-It's my land, I can use it as I like. D doesn't have an easement (public use) to the land.

R-P need not exercise reasonable care to protect against risks from wrongful operation of
another's use of their property. This is not contributory negligence.

Last Clear Chance: P's rebuttal to CN. P can still recover despite CN. The person with the last
clear chance to avoid an accident, who fails to do so, is liable for negligence. There must be a
timing sequence: an interval where P's act of negligence is complete and D had an opportunity to
avert disaster. (Last clear chance is not likely to be on the test).

Policy reason: P's unclean hands are cleansed since D had the opportunity to avoid the accident
right before the accident.

• Seat Belt Cases: States pass a law making it mandatory to drive with a seatbelt on.

D- P violated the statute, CN per se. I shouldn't have to pay.

P- That encourages D to speed. Not fair to impose sanction on me when it was D's actions that
were unreasonable. Moreover, me not wearing the seatbelt is something that happened before Ds
negligence, as opposed to contributing to the accident itself. Contributory negligence would be
applicable when P fails to exercise due care and that causes the accident in whole or in part.

Collateral Benefits Rule: D shouldn't benefit b/c he was lucky that P didn't have seat belt on.

Cts: View this issue differently.

Washington: P isn’t required to buy insurance as a precaution in case of a negligent D. Fact that P
wasn't wearing a seatbelt isn't even mentioned at trial.

NY- CN is a defense to damages. D must demonstrate the connection b/t the P's non-use of an
available seat belt and the injuries and damages sustained. Jury can hear expert testimony on
belts.

• Imputed Negligence:

Vicarious liability: the tortuous act of one person may be imputed to another because of the
special relationship between the two. As a result, the latter will be held liable (even if he did
nothing wrong). This is most common in employee-employer relationships. An employee that is
negligent in the course of work, cannot be liable, the employer is held directly and vicariously
responsible. Employers try to limit their liability by hiring independent contractors who then
become independent intervening actors and break up the chain of liability.

Hypo: A & B are emloyees working together. Rush job. B drops window on A's head. Due to
negligence, A wants to sue boss.

Ct: Employee-Servant R: 1 employee couldn't recover v. master if other worker caused the
injury.

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B. Assumption of Risk

• Defined: P is said to have assumed the risk of certain harm if she has voluntarily
consented to take her chances that harm will occur. Where such an assumption is shown,
P is at common law completely barred from recovery.

Elements:

1. P has the knowledge of the risk. Knowledge may be implied where the risk is one that the
average person would clearly appreciate. Ex. Risk of being hit by a foul ball at a baseball
game.

2. P voluntarily consented to bear the risk (must be a alternative in the face of the risk)

3. P didn't have to partake in the dangerous activity.

• IF D can show this, he is not liable. Sloppy way of showing P was CN.

Based on Free Will theory: One makes their own choices and lives with the consequences.

Police and firemen (public officials): they are seen as assuming the risk and are barred from
recovery, however if they are faced with a situation where negligence creates an undue risk
beyond those assumed in the line of their duty or if an owner does not tell the public official of a
hidden danger.

• Lamson v. American Axe & Tool co.--( Hatchet falls on head)

F- D bought new racks to hold hatchets which P told D were not safe b/c the hatchets could easily
fall on someone's head. D told P use racks or quit. The hatchet did fall and hurt P.

R-P owed a duty to himself. This was a negligent act that was not dependent on P's act, but was a
permanent condition which P knew about and continued to keep working. D wins. P was
responsible for a voluntarily undertaking with full knowledge of the inherent risks.

• Murphy v. Steeplechase Amusement Co.--("The Flopper")

F-D, Coney Island park had ride the flopper which throws people around. P went on rid, sudden
jerk and P fell on floor severely hurting his knee

R-P was aware of what the ride does. He saw other people flop around. P took a chance of like
fate w/ whatever damages to his body might ensue from such a fall. If we allow P to win in this
case, we might as well abandon ice-skating rinks b/c skaters sometimes fall. The case would be
different if the damages to the sport were obscure or unobserved, or so dangerous to be continued
as is.

Sporting Events: Generally you know the risk and assume it to watch the game.

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 • Ice Skating hypo: Woman is skating in ice rink. She sees boys skating wrong way and
complains to the manager who does nothing. She leaves kid on side and goes back out
there. 1 of the boys hits her. She sues Rink.

P argues: The rink was clearly negligent. They were alerted and did nothing. I am a good skater
so not CN.

D claims: P was aware of the danger. She took a calculated risk and decided she could avoid
them-she was unfortunately wrong. She wasn't forced to skate, and by doing so, she assumed the
risk.

P responds: D took her money and should be in the business of protecting their patrons, so D is
negligent. D cannot transfer responsibility to me.

C. Comparative Negligence

• Defined: Apportionment of damages based on relative degrees of fault of each party.

P's negligence doesn't bar recovery. He gets paid for the amount of damage as a
result of Ds negligence.
• Li v. Yellow Cab Co. of California – (An accident resulted from the negligence of both
parties. Plaintiff tried to cross three lanes of traffic and the defendant’s driver was
travelling at an excessive rate of speed.) The trial court held that the plaintiff was barred
from recovery due to her contributory negligence and the judgment was subsequently
reversed. Court initiated a change from contributory to comparative rejecting the
all or nothing system.

Two systems for comparative negligence:

Pure: 1% for P, and 99% for D= D Pays 1% so comparative reduces damages. *Lawyers like
more

Modified: No recovery for P if their negligence is more than 50%. If jury finds 50%, D isn't
liable. If 51%, D pays that exact amount. **Most states use this one.

Problem with Comparative system: It is an illusion to think that there is a rational way of
determining the % each party is liable.

Multiple D's: P collects from one D. D1 then can collect from D2, D3, & D4 their percentage of
fault in the accident (contribution).

• NY is a pure comparative state, meaning that it allows the smallest contributor to be

solely liable for all damages if the others have no $$.

1. Seat Belt Defense

a. D argues that P’s injuries from a car accident could have been reduced or
entirely avoided had P worn a seat belt; P damages should therefore be
reduced

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 b. Contributory Negligence Jurisdictions—courts usually refuse to allow a seat
belt defense at all. That is, P’s failure to wear a seat belt does not count
against his recovery
c. Comparative Negligence jurisdictions—defense is more successful
a. D is liable only for those injuries that would have occurred even had
P worn a seat belt
b. D is liable for all injuries with a reduction made equal to the % of P’s
fault, and
c. D is liable for all injuries, but P’s fault reduces recovery for those
injuries, but P’s fault reduces recovery for those injuries that would
have been avoided.

Proximate Cause

• P has the burden of showing that D is not only the CIF, but also the PC. D is only
liable for Legally sufficient acts, not all acts. Narrows D's liability.

• The key to PC is foreseeability

• Policy: To restrict liability of D to danger he can foresee, so as to avoid Ruinous or

unforeseeable liability.

• Ruinous Liability: Enormous Liability. Ex. Chicago fire. Cow knocked over the lamp.
This was unforeseeable. Should not have to pay for all of Chicago to be fixed.

• Unforeseeability: If you trace a chain of events backwards you can probably find the
problem. But the event at the end of the chain is too unforeseeable. Must limit the scope
of liability. It cannot be beyond the scope of what anyone should be liable for. Too
removed.

• Three Kinds of PC

1. Pure Policy: Public policy to limit catastrophic liability. Due to ruinous liability.

It tells people to get insurance. Restricts liability in a rational way. Protection for D against an
unpredictable ruinous liability.

2. Dual Risk Theory: Palsgraf

3. Remoteness and Unexpected Consequences.

A. Passage of time

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B. Intervening Cause (3rd party)

C. Unexpected Consequences.

A. Pure Policy (PP)

1) Tells people to get insurance.
2) Restricts liability in a rational way. Protection for D against an unpredictable ruinous
activity.

• Ryan: D negligently sets fire to their woodshed. Several houses are burnt before the P's

P argue: It is foreseeable that my house would be burned.

D argue: The damages are too remote and unforeseeable. It was foreseeable that the fire would
burn the adjoining house, but rule of Ruinous liability is hey here. Not fair to make D bear
liability b/c it would affect them in a ruinous way. It was not a Natural and Probable
Consequence.

Reciprocal Risks: encourage people to have insurance b/c danger of fire is equally known to
everyone.

Decision here restricts liability in a rational way because it limits liability to one house on either
side.

Rule: W/ fires, 1 house is foreseeable and D is liable. Today, 2 houses are foreseeable.

Central Georgia Ry. v. Price – (Woman misses stop and R. R. puts her up in a hotel. Lamp
explodes and sets fire to the mosquito netting injuring her.) The court held that the accident was
due to the negligence of the hotel, over which the railroad had no control. Her injuries were not
foreseeable by the railroad and were not the natural and proximate cause of her being brought
there.
Hines v. Garrett – (Girl misses stop and R. R. employees make her walk back to her stop at night.
She is raped twice on the way home.) The court allowed her to recover against the railroad
stating that generally no responsibility attaches for a wrong whenever the act of an independent
third party intervenes but this does not apply when the negligence alleged consists of exposing
the injured party to the act causing the injury. It was foreseeable that making a girl walk
alone at night in a bad neighborhood would lead to a little bumpin and grindin.

B. Dual Risk (DR)

• Theory: D is only liable for those consequences of his negligent conduct which were
reasonably foreseeable at the time he acted. You have a dual risk when u can create a
situation that would cause the same injury to occur in a non-negligent way.

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So a Reasonable and Unreasonable Negligent risk is created at the same time.

3 Step analysis:

a. Person: Who is foreseeably threatened by the risk?

b. Manner: How are they threatened?

c. Nature: How are they injured?

When are there Dual Risk's?

1. First risk is foreseeable through the conduct.

2. Second Risk is not foreseeable and not caused by the negligent aspect of the conduct.

-- Look at person, manner and nature to tell forseeability

• Gorris: Sheep were not kept in the statutory proper manner. They were then thrown
overboard during a storm.

P: First argue Neg PS because D broke the statute, but it was also reasonably foreseeable that
this event could occur because they weren't locked up properly.

D argue: Dual Risk: The purpose imposed by the statute was to protect animals from getting a
disease. It was not to protect them from going overboard. The proximate cause of injury came
from the non negligent cause (since they were thrown over by the storm) so D is not liable.

• Rat Poison Hypo: Box of poison on shelf over stove where soup is cooking. It doesn't
fall in the soup, but the heat makes it explode, injuring P.

D argue: Not Foreseeable. It is foreseeable that the poison would fall into the soup causing D
poisoning, but not foreseeable that putting it above heat would make it explode. Person: Person
who eats food is threatened

Manner: Internal poisoning/ not being blown up

Nature: Injury through poisoning, not explosion.

So an injury is foreseeable (poisoning), but not in the manner and nature you would expect.
D wins.

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 • Pail of Nitro: falls off table and breaks P's toe.

1. Is there a non-negligent way of causing the injury? Yes, it could have been a pail of water. The
aspect of D's conduct which was negligent did not cause P's injury.

2. 3 step analysis: Person: Same

Manner: expect explosion, but instead pail of nitro fell onto foot.

Nature: P would expect burns from nitro, got breaking of a foot.

So the Negligent risk from a pail of nitro falling is the possibility of an explosion. Actual risk was
heavy can which could hurt foot. This risk isn't unreasonably taken. Only if there was an
explosion would it be unreasonably taken.

HYPO – One is eating his lunch when a co-worker negligently tosses Asbestos lid tossed into
molten metal. The negligent toss created risk of splash, however in this instance, the splash
injures no one. Asbestos subsequently explodes causing molten to fly out and nail the bitch
eating his lunch in the eye. Explosion and molten flying out was unforeseeable. Same injury
would have occurred if the plaintiff had placed the lid in gently.

Policy Issue: D is lucky to get away from a negligent risk they created because the actual risk
was not the one reasonably foreseen.

• Palsgraf: Ms. Palsgraf injured when a package falls due to the negligence of the R.R.
employee who pushed a man on board as he was running to catch the train. The package,
unknown to the employee contained fireworks, which then explodes causing a scale
many feet away to fall and injure Palsgraf.

P argues : Negligent action of forcing passenger onto train caused my injury.

D argues: I was negligent helping the passenger onto the train, but not for your injury. Was not
the proximate case, as the injury to this third party was not foreseeable.

1. Was there a non-negligent way to cause the injury? Yes, you could leave the package on the
platform, it is thrown out and it explodes.

2. Person: person getting on train is foreseeably threatened, not P many feet away.

Manner: Maybe of falling from being pushed on, not dropping explosive box

Nature: Injured by being run over, not from explosion that caused vibration that would knock the
scale down.

Cardozo: "The risk perceived is the duty defined:" risk you can foresee is the only danger you are
liable for.

Holding/ Rule: P established negligence and negligence did in fact cause the injury, but
negligence didn't breach a duty because he was not the proximate cause due to this nature and
manner of the injury.

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In re Polemis & Furness, Withy & Co : If the negligence is the direct and immediate
consequence of the injury, D should be liable. This is the causation test supported by Andrews
(the dissent) in Palsgraf. Once D is determined to be negligent, the fact that the manner in
which is happened was unforeseeable is irrelevant. Ex. Negligently transported cargo.
Reasonable that D would be neg. for it breaking when falling, but here, the cargo fell and a fire
ensued, causing an explosion. That was unforeseeable, but you are held liable anyway.

Palsgraf and Polemis are 2 views of PC that differ (crunchtime seems to go with Palsgraf as the
binding one but later poison ivy case argues with Polemis thinking).

Palsgraf: Negligent if foreseeable this particular person would be injured.

Polemis: Negligent if foreseeable that anyone could be injured from neg. conduct.
Exceptions to the rule that D is liable only for foreseeable consequences:
1) Once P suffers any foreseeable impact or injury, even if relatively minor, D is liable for any
additional unforeseen physical consequences (egg shell skull- if D inflicts harm on someone that
just so happens to have a thin skull an P dies, D is liable).
2) As long as the harm suffered by P is of the same general sort that made Ds conduct negligent,
it is irrelevant that the harm occurred in the unusual, unforeseeable manner (example: D gives a
loaded pistol to X, an 8 year old to carry to P. If X then drops the pistol on Ys foot, thus breaking
his foot but also setting the gun off that shoots P, D would be liable. It was foreseeable that P
would get shot by giving the gun to X, even if it did not happen in the manner expected. D is not
liable to Y though because the gun falling on his foot was not foreseeable.

C. Generic PC issues: Remoteness and Intervening Causes.

Pittsburgh Reduction Co. v. Horton – (Kid playing with dynamite cap, mom knows about it,
trades it to another who gets injured while trying to “clean” it.) Court ruled that the second child
could not collect against the dynamite company because the parent of the first child broke the
causal connection to the company.
Brower v. New York Central & H.R.R. – (Wagon collides with the train and all of the items on
the wagon are either destroyed or stolen.) The court ruled that the act of a 3rd person,
intervening and contributing to a condition necessary to the injurious effect of the original
negligence and will not excuse the first wrongdoer, if such an act ought to be foreseen.
Because the railroad employed detectives to ride their train to protect against theft, the court ruled
that theft of the items was foreseeable and should have been used to protect the plaintiff’s items.
Defendant was aware of the risk of leaving unprotected property in that area.
Watson v. Kentucky & Indiana Bridge & R.R. – (Tank car containing gasoline derailed through
the defendant’s negligence. Gas leaked out and a man threw a match on it, starting a large fire.)
The court held that the defendant was not the proximate cause of the damages because a
deliberate and/or malicious intervening act will break the causal connection. If a spark had
inadvertently set the fire, the defendant would be liable.
Marshall v. Nugent: Have an icy road. D is negligently driving and hits P into snowbank. In car
#2, people get out to help P. Car #3 sees people, skids, hits fence, post files into the air, hits P in
the head.

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D claim: Remoteness or there was an Intervening cause. My negligent act was over and done
with (driving) by the time P was injured.

P will argue: Chickenhawks PC: Unforeseeable specific facts (like P being hit by a flying post),
but foreseeable general event; when D causes P to skid off the road, it is generally foreseeable
that some kind of further injury will occur. "Some kind of danger"

*D's risks are not over after act. They last until the event has passed.

H- the ripples were still going, there was no break after Ds negligence.

The main test for intervening causes in proximate cause cases: if D should have foreseen the
possibility that the intervening cause (or one like it) might occur, or if the general kind of harm
suffered by P was foreseeable (even if the specific intervening cause was not itself
foreseeable), Ds conduct will nevertheless be the proximate cause (think chickenhawks). But if
neither the intervening cause nor the kind of harm was foreseeable, the intervening cause will be
a superseding one, relieving D of his liability. In Marshall, it might not have been the specific
way D would think P would get injured, but the general kind of harm was still foreseeable.

New: Car is pulled out of snowbank and drives away. An hour later, the car is hit at a train
crossing. P sues original D again.

P argues: If the D hadn't been a negligent driver, he wouldn't have been an hour late and I
wouldn't have been hit by the train. Your neg was the PC

D: PC. Remoteness PC: The danger created by the accident no longer existed. The delay
doesn't make me responsible. "The ripples ended"

P argues back: I may have still emotionally been affected and that strain caused the accident.
Nothing broke the chain of causation.

One last point: “injury invites rescue:” if people try to help out someone, that does not break the
chain or render them independent intervening actors. D is still liable.

• Rudder hypo: Collision b/t 2 ships. Rudder of 1 of them is damaged, causing the ship to
turn in circles. People starve to death. Original ship is sued.

D claim: PC remoteness. The injury from the danger no longer existed.

P claim: They were still suffering from the risks. Still a foreseeable risk that boat would be
endangered. Not a Proximate cause gap, "ripples" still there.

• Train/Hotel burn hypo: RR hits the back of A's car but A is not hurt. He is stuck in the
middle of nowhere so he rents a hotel room. Hotel burns and he is burnt.

P: I was stuck in the middle of nowhere b/c of your neg. RR driving.

D: no duty. There was an independent intervening cause. Not our fault. The risk has passed.
Not in the situation before, but in a different, supposedly safer situation. D will not be liable since

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we do not want D to be liable for everything. It was not foreseeable that hotel would burn in a
safe area.

• Radio Hypo: 1st three to the mall get free tickets is broadcasted. Kids go speeding to get
the tickets. They get into an accident and kill P. P's estate sues the Radio station.

D claim: No PC, the kids were an independent intervening cause.

P claim: you encouraged a group of people to drive in a dangerous way. Their reckless actions
were foreseeable from risk created by D. Kids are not indep. intervening cause b/c they are
exactly the kind of risk that was expected. They should've known better.

D would not be liable had it been an advertised thing by the radio stations for a few days because
then people can plan ahead to be there without driving like madmen.

• Wagon Mound Cases:

WM#1: Ds ships spill oil into the bay. Some of the old adheres to Ps wharf. The oil is then set
afire by some molten metal dropped by Ps worker, which then ignited a cotton rag floating on the
water. Ps whole dock burns.

D argue: We were CIF, but not PC. Dual risk. It is foreseeable that we could cause some beach
damage with escaping oil, but an explosion of the dock is not foreseeable from us cleaning out
our tanks

P: D spilled the oil into the water, so they were negligent.

H- D is not liable because the burning of Ps dock was not the foreseeable consequence of Ds oil
spill, and thus the oil spill was not the proximate cause of the damage. This is true even though
the spilling of oil was the cause in fact of the burning.

WM #2: Same facts above, but P new evidence was brought in by P that said that spilling oil
creates a foreseeable risk that burning will occur. P did not want to bring this up initially because
then P would be contributorily negligent for dropping molten metal in the water. As a result, the
dual risk disappears as the spilling of the oil in the water becomes negligent (is an aspect of Ds
conduct) as it is was shown to be foreseeable after all. While P is contributorily negligent, it does
not get D off for the greater harm of spilling oil in the water when they know or should have
known it could burn something.

• Poison Ivy hypo: P is driving by when he crosses RR passing by w/out lights or horn, it
just misses him. Panicked by the near miss, P goes to woods to piss and gets poison ivy.

D argues: PC remoteness. Our negligent act was over and P was not harmed.

P argues: Emotional Distress is clearly foreseeable from risk of almost getting hit by a train.
Nothing broke the chain of causation. Like the Marshall case- it is foreseeable that there will be
some kind of danger.

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 • New: 2 years later, A sees a train coming and freezes b/c of a flashback of an earlier
incident and is injured. A sues the 1st RR company.

D argues: Too remote, not immediate/direct cause. There was an intervening act/ 3rd party, i.e.,
you for deciding to drive knowing you have this affliction.

P argues: The intervening act of P will not break the chain of causation if within the foreseeable
risks created. You caused the trauma, it is the active reason this happened so you are responsible.

• Building Hypo: 2 cars are driving. Car 1 causes car 2 to swerve and go into a building.
P's car stops to help and the building falls on it. P sues car 1

P argue: Injury invites rescue. They were rescuing car. Not likely event, but the dangerous
situation created the injury.

Rescuers: They are foreseeable. If D creates the danger, it is foreseeable that you will come to
their rescue. The rescuer is NOT and independent intervening cause that breaks the chain,
D's actions directly caused the result.

• Pyro hypo: D is driving a oil tanker. Turns too fast and gas falls onto the street. A few
hours later, a car is driving down the street and spark is created. Blows all up.

D: The spark from P's car is the independent intervening cause that breaks the chain.

P: your negligence was the PC and the risk created doesn't break the chain of causation. It is
foreseeable that dropping oil can ignite a fire that will blow shit up.

New: What if it was intentional? Like a pyro drops match and P's car blows up?

If an intentional act is caused by a criminal, the act is not foreseeable and P can't sue tanker. *
Not responsible for criminal intervention that causes injury. (Aforementioned Watson case).

• Browner: D, a RR found it desirable to have the train guarded by detectives against

thieves after a collision. This shows that it was foreseeable to D that something could be
stolen. Property from P was then stolen.

P claim: D was aware of the risk of leaving unprotected property in the area and an independent
intervening 3rd person will not break the chain.

H- D is not liable since it would be unfair for them to anticipate and guard against intentional
malicious actors. These thieves are thus independent intervening actors.

Hypo: famous person in a motel room subject to robberies in the past and there’s another building
nearby and you can go from the roof into the motel and b/c the lock is broken you can get into the

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rooms of the residences through the balcony. The room gets broken into and she gets rapes. She
sues the motel?

Motel says: we didn’t do it, there was an intervening cause, the rapist, and he did it; and if you
were walking by my building and you get raped doesn’t mean I am liable.
P says that its foreseeable b/c the motel’s negligence created the risk that someone could come
into the motel. Here rapist was not independent intervening cause. There was a background of
crime, there has been thefts in the motel, so it is not a jump for a rape to be foreseeable.

• Rape cases Henderson and Hines

Henderson: D's company leases convicts for mining and negligently permitted one to escape. He
rapes P. D is not liable.

Hines: RR takes P one stop further than they should have. She walks back and she is raped. D is
liable.

Why the inconsistency?

In Henderson, the "person harmed" was NOT foreseeable. It was too unpredictable. Can't make
D liable for all acts Henderson might commit. That would be ruinous liability. In Hines, the
"person harmed" was foreseeable. RR had a duty to her, it was foreseeable that she would be
assaulted in that area. The type of person here is Key. Henderson can also be paralleled with
police. If someone escapes, cannot put all the blame on them since it would be provide ruinous
and endless liability.

Affirmative Duties

• General Rule: No duty of Affirmative Action. There is no affirmative duty to act, even
of aware of the risk and have the capacity to help.

• Yania v. Bigan: D urged P to jump into a well which he did and died by drowning. D did
nothing to help P when he was in there.

P argue: You have a reasonable duty to take steps to save another person.

D argue: No legal duty to rescue unless you're legally responsible for placing that person in
danger. P voluntarily placed himself in that position of danger & is alone responsible.

• Affirmative Duties to act if : SCRAP

1. Statute 2. Contract

3. Relationship 4. Assume the duty

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5. Wrongful Peril caused by your actions

• Drowning Hypo: A is a good swimmer. B isn't good and she drowns. A does nothing.

P argues: The child B relied on the statement that A is a good swimmer. This MAY create an
affirmative duty of action.

D argues: No duty to act. No violation of duty you don't owe.

New (illustrates assumption of duty): P is drowning and D goes in to save them. D then turns
around and goes back.

P argues: Voluntary Assumption of a duty. When you went out to save me, others saw this and
did not think they had to help. I was deprived of an opportunity to be rescued.

D argue: I was cramping up and I could not save you.

H- once D voluntarily begins, even if he was under no obligation to do so, D must proceed with
reasonable care.

Hypo: P asks D to lock his door. D forgets and all of Ps stuff gets stolen.

D- I have not affirmative duty.

P- but you promised.

Here there is no consideration so it is merely gratuitous. What if P asked while he was hanging
out with D and 10 others? Here we might say P reasonably relied and on promissory estoppel
grounds, D would be liable.

Hypo: P is in an accident and D stops to help- he puts a towel under his head and goes out to get
help. As he is searching, wife calls and tells him to come to dinner.

P- you dick, you totally forgot about me, you are liable for my injuries after you left since they
were exacerbated by me waiting there. You voluntarily assumed the duty to help once you
stopped to help. I then reasonably relied to my detriment. Moreover, others might not have
helped after seeing you helping me.

H- D is liable here, once he starts he has to continue helping in a reasonable way.

• Marsalis: P gets scratched by D's cat. D agrees to lock it up to be observed for rabies. The
cat is not restrained and it escapes. P then has to undergo the rabies shots. She gets bad
allergic reaction to them. P sues D for damages.

D claims: I own no legal duty to restrain my cat.

P argues: When P agreed to restrain the cat, they voluntarily assumed the duty and were bound to
use reasonable care and prudence, which they did not.

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Nonfeasance: when D has an affirmative duty to help, aid, or assist even though the harm did not
come from D.

Misfeasance: D has an affirmative duty to act, they take action, but their action is
negligent/improper.

• Montgomery: Misfeasence Case. D's truck stalls on icy road. It wasn't their fault. D puts
out flares right near the truck. P came over the hill but by the time they saw the flares, it
was too late to stop and they crashed.

D argues: We owed a duty and we fulfilled it; we put out flares. We weren't Negligent.

P argues: There was an affirmative duty to act because your truck was blocking the road, you
assumed the duty by putting out flares, but you put them in a negligent place and failed to
neutralize the danger you created.

H- D is liable in these situations. D would have to put the flares where people can see them and
avoid danger. Weird thing though is that if D put out no flares, he would not be liable as long as
he took reasonable care by trying to push his car or something, but once he assumed a duty, he
had to then take reasonable care, which he did not.

• Moch: D was a water company which contracted to supply water to city. Ps' warehouse
was destroyed by fire b/c no water was supplied to put out the water. P sues D.

P argues: One who assumes the duty to act, even though gratuitously, has an affirmative duty to
act. D negligently did not perform their K and should be liable.

D argues: P is not a third party beneficiary as the agreement was b/t D and the city. Also, no
duty to act b/c it acted gratuitously. Theory of Ruinous Liability. Cannot hold D liable for all
when P had a reciprocal risk to get fire insurance.

H- this case falls under nonfeasance, as opposed to misfeasance. Court rules for D, as a holding
for P would be ruinous to D and we cannot hold D liable to everything when P had reciprocal risk
to get insurance.

Other times D has affirmative duty:

1) Anyone who maintains business premises must furnish warning and assistance to a
business visitor, regardless of the source of the danger or harm.

2) When Ds own conduct caused Ps injury.

3) D and victim as co-venturers: if two friends went camping or jogging, they might have
affirmative duties to each other.

4) D having a duty to control 3rd persons and not exercising that control: Example, D a
storekeeper, fails to take action when X, and obviously deranged man, comes into the
store wielding a knife. P, a patron, is stabbed. D would probably be liable for not taking
action.

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 5) Would be aforementioned assumption of duty. Once a D starts to help he has to finish
otherwise, it sets him up big time since all potential Ps can cry out promissory estoppel as
they reasonably relied to their detriment

Special Relationships
1. There is no duty to control the conduct of a 3rd party to prevent him from causing
harm to others unless there is a special relationship between the actor and the 3rd
party or between the actor and the person in need of protection.
2. Example: D a storekeeper, fails to take action when X, an obviously deranged
man, comes into the store wielding a knife. P, a patron, is stabbed. D would
probably be liable for not taking action.
3. Landlords have a duty to protect tenants when the facts show that there is reason
to know that there may be crime in the area
i. the problem arises when we don’t know if the attacker was a resident or
an intruder; this makes it hard to show that the lack of security caused the
attack (possible defense for D: “I took reasonable care knowing the area
but there was an intruder.”
• Kline v. 1500 Massachusetts Avenue Apartment Corp. – (Woman assaulted and
robbed in the hallway of her apartment building.) Court held that landlord must
provide minimal protection if the building conditions give the indication that
protection is warranted. D to take reasonable precautions to protect from assaults
from 3rd parties which could reasonably have been expected.
• Tarasoff v. Regents of University of California – (Killer confesses his intention
to kill to his psychologist and Dr. does not warn intended victim’s parents of the
danger.) Court says that where there is a specific threat, there is a duty to warn.
A reasonable doctor knew or should have known that the threat was real.
• a communicable disease that is easily spread, the doctor has an obligation
(not HIV) used to be quarantined—the doctor has a responsibility to the
people who might be subject to the disease
• suicidal patient who is placed in a 5th floor room with a window that can
be opened and they can jump and fall on someone—they should’ve known
that this is a foreseeable result, and they created a risk to others
• certain situations where a doctor treating other individuals has an
obligation to protect others from the disease of the individual.
• NY has specifically rejected Tarasoff
4. Its been long established that when the treating entity knows that a patient
presents a danger to others they have a duty such as the duty to quarantine, or the
duty to not let the person jump out the window—the law has long imposed a duty
on doctors to protect foreseeable people at risk from the patient from which he’s
being treated.

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 5. PECULARARITIES

• Mock v. Rensselaer Water Co. (already did this but I copied and pasted this section)
—there’s a water company who is supposed to supply water and there’s no water and
as a result the house burns down and the victim sues the water company. What do
we know about Cardozo that might be able to predict his decision? He has limited
liability in Palsgraf, and said the risk perceived is the duty defined. In Palsgraf the
risk perceived was you may kill this guy, so no duty to the woman being hit by the
scale, but here, the most foreseeable risk if the hydrant has no water, is that houses
will burn down, no water to put out the fire b/c they are maintaining the fire hydrants
—Cardozo holds that the water company does not have a duty (how can this be if this
is the most foreseeable risk in the world?) first he eliminates contract liability—
there’s no duty b/c the town contracts with the company, so no direct contractual
relationship, therefore, this person is a third party and has limited kinds of rights—
this case has something different—its harder to show a causal relationship between
not acting and acting and here is a not acting case—they didn’t provide the water,
and that didn’t cause the fire—and that limited the possibility of protecting the house
from fire—they didn’t cause the peril and so they have no duty to intervene to help—
proximate cause scenario—limiting the liability of the water co. on the grounds that
contractual relationships has policy implications—difference in selling the water to
the citizens and selling the water to the town—the duty is to the municipality and if
we jump over them and create duties to the public, the individual recipient, what’s
going to happen? Companies will charge more for the water b/c they will have lots
of liability to everyone—same kind of liability that limits liability for the town police
b/c they would’ve had more street patrolmen.—misfeasance/nonfeasance

• HYPO—your client goes to visit her friend in a NYC apartment; 25 floors, maybe
800 apartments, when she gets off at the 12th floor, she gets attacked and molested
and she sues the apartment building owner (corporation whatever); suppose the
security guard was not there; the theory is that the security guard should have been
there b/c obviously they usually have one, but this time he wasn’t there; but she cant
prove its an intruder and thus happened as a result of the lacking security guard—it
could have been a tenant or a guest of a tenant—P must prove that the person that
attacked them is not a resident of the building so that it causally links the lack of
security guard with the injury to P because of the breach in not having the security
guard—a cause in fact problem (core problem in any case) if you can’t prove it, you
can’t win the case. Apartment needs to protect its patrons from the wrongdoing
of 3rd parties.

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 • Standard of care owed by owners and occupiers of land

a. Duty of possessor to those off the premise

I) Natural conditions -- No duty to protect one outside the premises

ii) Artificial conditions -- No duty to protect except:

(a) Unreasonable dangerous conditions created by the landowner. (b) Duty to protect passers by -
landowner has duty to take due precautions to protect persons passing by form dangerous
conditions.

iii) Conduct of persons on property -- Owner has duty to exercise reasonable care with is own
activities and to control conduct of others on this property to avoid unreasonable risk of harm.

b. Duty of possessor to those on the premise

A) Duty owed to Trespasser

1. A trespasser is one who comes on the land without permission.

2. Duty Owed Undisc.Trespasser-- A landowner owes no duty to an undisc. tres.

3. Duty Owed Discovered Trespassers --Once a landowner discovers the presence of a trespasser,
he is under a duty to exercise ordinary care to warn the trespasser of or to make safe artificial
conditions known to the landlord that involve a risk of death or serious bodily harm and that the
trespasser is unlikely to discover. There is no duty owed for natural conditions and less dangerous
artificial conditions.

4. Duty Owed Anticipated trespassers --Treated the same as discovered tres.

5. Children Trespassers (Attractive Nuisance Doctrine- converts trespassers to licensees:

meaning, D must put up warnings, but does not need to check for hidden, unknown
dangers) Landowner must exercise ordinary care to avoid reasonably foreseeable risk of harm to
children caused by artificial conditions on property. If kid is lured onto the land by someone
telling him about it and not because of the attractive nuisance then that is an independent
intervening cause and breaks Ds liability.

P must show:

i) There is a dangerous condition present on the land which the owner is aware.

ii) The owner Knows/ should know that Young people frequent the vicinity.

iii) The condition is dangerous because of child's' inability to appreciate risk.

iv) The expense of remedying the sit. is slight compared w/ the magnit. of the risk. B <PL.

B) Duty owed to Licensees

1 -- Licensee is one who enters the land with the possessors consent. Licensee does not have a
business purpose and has no other reason for being there apart from the owners consent.

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2 -- Duty Owed -- Of known Conditions that create unreasonable risk of harm. Although, D does
not have to inspect for unknown dangers (on stairs for example) even if reasonable owner
would.

3. Social Guests are Licensees

C) Duty owed to Invitees: owner does owe a duty of reasonable inspection of hidden
dangers. Also has duty to warn invitees.

1. Invite = person invited by landowner for business OR invited as members of the public for
purposes which the land is open to the public

2. Types -- Held open to the public (Museum), Connected with the business (Employees,
customers)

3. Scope Of Invitation -- If a person exceeds the scope of invitation, goes into a portion of the
premises where the invitation cannot reasonably be said to extend will lose status as invitee.

D) Liability of Lessors and lessees: tenant is treated as an owner.

1. Duty of lessor to lessee -- Lessor is obligated to give warning to the lessee of existing defects
in the premises of which the lessor is aware or has reason to know and which he knows the lessee
is Not likely to discover on reasonable inspection.

2. If the lessor knows that the lessee will hold the premises open to public, the lessor has an
affirmative duty to inspect the premises and to find and repair dangers before the lease starts.

3. Effect of Lessors Covenant to Repair -- if the lessor has covenanted to make repairs and
reserves the right to enter the leased premises for the purpose of inspecting for defects and
repairing them, he is subject to liability for unreasonably dangerous conditions to anyone.
Burden is on P to show D did not show reasonable care, not enough that D breached.

4. Effect of Voluntary repair -- If lessor, under no obligation, makes repairs, he is subject to

liability if he does so negligently.

5. Effect of Admission of the Public -- if the lessor leases the premise knowing the lessee intends
to admit the public, he is subject to liability for unreas. dangerous conditions existing at the time
he transfers possession. A mere warning to the lessee concerning the defect is not sufficient.

E) Vendors

Generally, a seller of land is released from tort liability once he has turned over the property.

Exceptions: if the vendor conceals dangerous conditions which he is aware or should be aware
and which buyer will probably not discover. Once buyer discovers the danger though, seller is
off the hook.

Another exception is if the vendor of the house is the company or person that built it.

F) Random shit
Guilford v. Yale: P was in Yale when he went outside to take drain the lizard, but he falls and
gets hurt.

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D- I owe you shit because you are a licensee.

P- wrong bitch- I am an invitee because you are soliciting money from me, therefore you are
liable for not asserting a reasonable inspection to find hidden dangers or at least give me a
warning.

Landowner Duty: NY State: must assert reasonable care to everyone (NY got rid of distinction
between licensee, invitee, and trespasser for this cause): burglar could use chickenhawks to sue.
Burglar is not the people we are looking to help out, but if he can get hurt then so could someone
you care for. Implications would be that D now has to check for unknown dangers and provide
warnings of existing dangers to criminals and loves ones alike.

Rowland v. Christian (California court): P entered Ds apartment upon Ds invitation. While

using the bathroom, a fixture broke and severed tendons on Ps hand. There is a generalized duty
to keep your property safe for those that you invite on it.

The issue here is whether P is a licensee or invitee. If P was a licensee, D did not have to inspect
for unknown dangers. If P was an invitee, D would be liable.

H- court said that the distinction between licensee and invitee is too complex and has no basis for
policy. You owe a duty of reasonable care to everyone and thus would be liable.

Dissent: social guests ought to take the premises as they find them.

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