Natalie Punchak [Chapter 4, E&E: REASONABLE PERSON STANDARD] In order to recover in a negligence case, the plaintiff has the

burden of proving 4 elements: (1) duty, (2) breach, (3) causation, and (4) damages. To establish the second elementbreach of the duty of reasonable care, or negligencethe plaintiff must show that the defendant failed to act with reasonable care, to behave as the ordinary prudent person would under the circumstances. Definition of negligence as the 2nd element of the tort of negligence: Negligence is the failure to do something which a reasonable person, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Blyth v. Proprietors of the Birmingham Waterworks Restatement (Second) of Torts, Section 283 The Hand Formula not only identifies the different factors that he would consider before undertaking some action but also specifies how a reasonable person would measure & weigh & balance those factors: United States v. Carroll Towing Co. (1947) The defendants duty is a function of three variables: (1) the probability of harm/injury P; (2) the gravity of the resulting harm/injury L; and (3) the burden of adequate precautions B. Liability depends on whether B is less than L multiplied by P (i.e., whether B < PL). According to Hand, the reasonable person takes a precaution against injury if the burden of doing so is less than the loss of the injury occurs multiplied by the probability that the injury will occur. Personal Circumstances & the Reasonable Person Standard: A person with a physical disability is required to act as a reasonable person with that disability would act. Thus, it is not negligent for a blind person to walk the streets even though he may occasionally bump into others. The blind have to live in the same world as the rest of us, and it is reasonable for them to impose the risk of occasional sidewalk collisions to do so. While allowance is made for physical disabilities, no allowance is made for the circumstance that a person lacks good judgment, is hasty, awkward, or perennially oafish. Vaughan v. Menlove (Eng. 1837) The same refusal to consider individual personality is illustrated in the treatment of the mentally ill. The traditional rule, still generally accepted, is that the mentally ill are held to the same standard as everyone else, despite the circumstance of their illness: Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances. Restatement (Second) of Torts, Section 238B. Remember: for legal purposes, we need a standard that defines fault in some predictable, universal, objective way. The reasonable-person-under-the-circumstances test provides a neutral instrument for deciding disputes, not a value judgment about a persons character. Children are not held to the adult standard of care, but rather the standard of a reasonable person of like age, intelligence, and experience under the circumstances. Restatement (Second) of Torts, Section 283A. The child standard does not mean that most children cannot be found negligent. In many cases, children

who engage in certain high risk activities primarily engaged in by adults, such as driving, are held to the adult standard of care. External Circumstances & the Reasonable Person Standard: Remember: negligence is relational. The reasonableness of the defendants decision is always judged in relation to the unique context or circumstances in which she acted. The emergency doctrine: in judging a decision, the jury should consider whether the decision was reasonable in light of the circumstance that the defendant had to act in a split second. It is also relevant that the defendant acted as others customarily do in like circumstances. The fact that conduct is generally engaged in by those in a particular trade or profession at least suggests that such conduct is acceptable. However, while relevant, evidence of custom is not dispositive. In some circumstances, custom and reasonableness may diverge dramatically. (i.e., seat belts) Another circumstance that commonly colors the reasonableness of conduct is whether a statute requires a particular course of action under the circumstances. Generally speaking, the reasonable person obeys the law; thus, evidence that the defendant ignored a statutory standard will frequently suffice to establish that he was negligent (i.e., to establish negligence per se). A further relevant circumstance is whether the actor has acted as an expert in a particular field. This does not mean that persons with specialized knowledge are held to a higher standard of care than others: their standard, like that of others, is reasonable care under the circumstances. But the fact that an actor is a professional or assumes the role of an expert in an activity is a circumstance that colors the meaning of reasonableness. Finally, the facilities, resources, or alternatives available to the actor are also relevant to the reasonableness analysis. It may be reasonable to perform exploratory surgery in a community where less invasive methods of analysis are unavailable, but not in an area where they are, etc. [Chapter 5, E&E: STATUTORY VIOLATION AS NEGLIGENCE] What role do statutes, enacted by legislatures, play in proving the second element of a claim for negligence, that a party breached the standard of reasonable care or was negligent? Violation of a statutory standard of care does not necessarily constitute negligence per se. Most courts allow the jury to consider the violation of a statutory standard of care in determining negligence, but avoid making it automatically determinative. Negligence Per se with Excuse The most common formula is to hold that an unexcused violation of a relevant statute is negligence per se, but that a party who violated the statute may offer evidence of an excuse or justification for violating it. The Restatement (Second) of Torts adopts this approach to the problem. Section 288A provides that an excused violation of a statute is not negligence per se. Section 288A offers the following examples of acceptable excuses: Incapacity (e.g. the actor is a minor unable to comply with the usual standard of care) Lack of knowledge of the need to comply (e.g., where the drivers tail light goes out while he is driving and before he has an opportunity to discover it) Inability to comply (e.g., where a blizzard makes it impossible to comply with a statute requiring a railroad to keep its fences clear of snow) Emergency (e.g., as where a driver swerves across the center line to avoid a child in the street) Compliance poses greater risk than violation (as where a pedestrian walks with her back to the traffic

due to unusually heavy traffic going the other way) Presumption of Negligence Some jurisdictions hold that proof of a statutory violation creates a presumption that the violator was negligent. The violator is still free, however, to rebut the presumption by showing that the reasonable person would have acted as he did. It is not clear whether there is much difference between this approach and the Restatement approach. Violation of a relevant statute establishes a prima facie evidence of negligence. Evidence of Negligence The third common approach is to treat violation of a statutory standard of care as evidence of negligence. Under this approach, the jury is not compelled to find the defendant negligence if he violates a statute, even in the absence of rebutting evidence from the defendant. They may. RELEVANCE: Evidence of the violation of a statutory standard of care is usually admissible & can be conclusive; however, such evidence may not be used to establish breach of the duty of care unless the statute establishes a relevant standard of care. A statute is only relevant in establishing negligence if it is meant to protect persons like the plaintiff from the type of harm which actually occurred. Gorris v. Scott (1874): Court found that since statute was not aimed at preventing the type of harm that occurred, it did not establish a standard of care relevant to the circumstances, and could not be used to establish the shippers negligence. Kansas, Okla. & Gulf Railroad Co. v. Keirsey (1954): Court refused to find negligence based on the violation of statute which required railroad to maintain fences because the statute was aimed at protecting farm animals from being hit by trains, not from eating too much grass. Courts will also refuse to treat violation of a statute as negligence per se if the statute was not intended to protect the class of persons to which the plaintiff belongs. Restatement (Second) of Torts, Section 286a. If defendant successfully argues that the statute was not aimed at the type of harm the plaintiff suffered, or at protecting persons in the plaintiffs situation, violation of the statute will not be given per se effect. This does not mean that the plaintiff must lose the case. All it means is that the plaintiff cannot use the defendants violation of the statute to prove the second element of her claim: breach of reasonable care. Instead, she must shoulder the usual burden to show negligence under the reasonable person standard. [Chapter 6, E&E: RES IPSA LOQUITUR] Negligence need not always be proved by direct evidence. In many cases, plaintiffs will have to rely on circumstantial evidence, that is, evidence of facts from which a jury could infer that the defendant was negligent. Res ipsa loquitur originated in Byrne v. Boadle (1863).

Res ipsa is really a special form of circumstantial evidence. In Byrne, the plaintiff was hit on the head by a flour barrel which fell from defendants second story window. While there was no evidence of what caused the flour barrel to fall on Byrne, the court allowed him to recover. Res ipsa loquitur: the thing speaks for itself, said the court. The Byrne judges opined that flour barrels dont just fall out of windows on their own; that when they do fall, the most likely reason is the negligence of the person in control of the premises. So, the circumstantial evidence that the barrel had fallen from the defendants second story window sufficed to allow a jury to conclude that some negligent act by the defendant had caused it to fall. According the doctrine of res ipsa loquitur, even though the plaintiff cannot offer direct evidence of what exactly caused the barrel to fall, he should be allowed to reach the jury on the issue of negligence by proving the circumstances of the accident itself, because they bespeak negligence even without a more specific showing of the chain of events. For the res ipsa doctrine to apply, the circumstances must support an inference of negligence: There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of events does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care (Scott v. London & St. Katherine Docks Co., 1865). Most courts hold that plaintiff can make a case for the jury under res ipsa by showing (1) that he was injured by an accident that would not ordinarily occur without negligence and (2) that the negligence is more likely than not attributable to the defendant, rather than to the plaintiff or a third party. Requirement #1: the accident must be of a type that ordinarily does not happen without negligence. This is not to say that negligence is the only conceivable explanation. But the plaintiffs burden of proof in a negligence case is not to eliminate all possible alternative causes of his injury. His burden is to show that the more probable cause was negligence. Requirement #2: the negligence must be attributable to the defendant. The Restatement (Second) of Torts, Section 328D, says: (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence Hence, the plaintiff may invoke res ipsa loquitur even if the defendant did not have exclusive control of the source of the harm, so long as the plaintiff can demonstrate that the negligence was likely that of the defendant rather than himself or other parties. Requirement #3: Plaintiff must show that although she may have been contributorily negligent in some way, the negligence that created the initial danger is attributable to the defendant rather than to her. If, however, it is equally probable that the plaintiffs negligence created the danger, she has not brought the negligence home to the defendant. The crucial impact of res ipsa loquitur is that it allows the plaintiffs case to go to the jury even though he has not proved a specific act of negligence. This is good for the plaintiff. It is then up to the jury to decide whether the accident was more probably than not the result of the defendants negligence. The

doctrine of res ipsa loquitur essentially permits the jury to infer negligence but it does not require them to. Some cases suggest that res ipsa loquitur shifts the burden of proof to the defendant, or creates a presumption of negligence which requires a finding of negligence if not rebutted. Most courts hold, however, that the doctrine merely provides evidence sufficient to support an inference that the defendant was negligent, but does not compel a finding for the plaintiff even where there is no rebuttal evidence. Restatement (Second) of Torts, Section 328D (3). A typical jury instruction on res ipsa states: When an accident is such that it would not ordinarily have happened unless someone was negligent, and if the thing which caused the accident is shown to have been under the exclusive control of the defendant at the time that the negligent act, if any, must have happened, then you are permitted to infer from the mere fact that the accident happened and the circumstances surrounding it that the defendant was negligent. This instruction basically tells the jury that they may conclude that the defendant was negligent, (1) if they find that it was the type of accident that does not ordinarily happen without negligence, and (2) if the thing which caused the accident was under the defendants control at the time of negligence. How can the defendant refute the plaintiffs proof of negligence, where the plaintiff hasnt proved any specific negligent act? The most effective way is to prove the actual cause of the accident. Short of that, the defendant can attack each of the foundation facts necessary to support res ipsa loquitur. He may question (2) by showing that other persons mishandled the product that caused the injury after it left its hands (e.g. the retailer in the exploding beverage case); or he may undermine (1) that the type of accident does not ordinarily happen without negligence by showing other common, non-negligent causes of this type of accident. If the jury is not convinced that each of the foundation facts is established, it should refuse to infer the ultimate fact of negligence. If defendants proof on either of these elements is strong enough, the judge may even direct a verdict for him, on the ground that the jury could not reasonably conclude that the proper foundation for the res ipsa doctrine has been established. The defendant may also try to refute res ipsa loquitur by proving that he generally exercised due care. This can backfire, however: the more careful the defendants procedures, the less likely that an accident would happen if they had in fact been followed. Thus, such proof could lead the jury to conclude that, had the procedures been followed, there would not have been an accident at all. [Chapter 7, E&E: Determining Cause in Fact] To assure that liability will only be imposed where the plaintiffs loss is fairly attributable to the defendants conduct, courts have developed two causation requirements: causation in fact & proximate or legal causation. Cause in fact requires that, as a factual matter, the defendants act contributed to producing the plaintiffs injury. Proximate causation deals with the limits on liability from remote or unexpected consequences of tortious conduct. The But For Test: Traditionally, courts have used the but for test to determine whether the defendants act was a cause in fact of the plaintiffs harm. Under the but for test, The defendants conduct is a cause of the event if the event would not have occurred BUT FOR THAT CONDUCT; conversely, the defendants conduct is not a cause of the event if the event would have occurred without it. Prosser & Keeton, 266.

Under this approach, the court asks whether the plaintiff would not have suffered the harm but for the defendants negligence. In other words, if we go back and replay the accident, but take away the defendants negligent act, would plaintiff have escaped injury? If we prove that the accident would not have happened without the defendants act, the act is a but for cause of the harm. Another way of saying this is that the defendants act must be a sine qua non of the plaintiffs injury. Sine qua non means without which it is not; an indispensable requisite. That is, the injury would not have happened without the defendants act. Again, the test invites us to look at what did happen and compare it to what would have happened if the defendant had not been negligent. If the injury would not have resulted without the defendants negligence, then the negligence is a sine qua non of the injury, and the cause-in-fact element is met. It is no defense for one negligent actor that someone elses negligence also contributed to the accident. In order to incur liability, there is no requirement that the defendants act be the sole but for cause of the injury, only that it be a but for cause: A tortfeasor is liable for all damage of which his tortious act was a proximate cause. He may not escape his responsibility simply because another act either an innocent occurrence such as an act of God or other tortious conduct may also have been a concurrent cause of the injury. American Motorcycle Assn. v. Superior Court (1978). The Substantial Factor test as Alternative to the But For Test: Exceptions in which to use the test: Where two defendants act negligently and eithers act would suffice to cause the plaintiffs injury Anderson v. Minneapolis (multiple-sufficient-cause cases) The substantial factor test leaves more leeway to the jury in assigning causal responsibility for the harm. Unlike the but for test, the substantial factor test is a matter of degree. The jury must make an intuitive judgment both as to what degree of causation is substantial and whether the defendants negligence reached that level. Remember that the substantial factor test is an alternative to approach to the cause in fact analysis, to be used in situations where the but for test does not yield satisfactory results. Even under a substantial factor instruction, the defendant should not be held liable if the harm would have occurred even if she had not been negligent. Restatement (Second) of Torts, 432 (1) Summers v. Tice illustrates another situation in which the but for test yields unsatisfactory results. In Summers, two defendants fired their shotguns, and a pellet from one or the other injured the plaintiffs eye. Both defendants were negligent, but it was impossible for the plaintiff to show that it was more probable than not that either defendants pellet had hit him: It was a 50/50 proposition that either defendants shot had hit the eye. Under the but-for analysis, the plaintiff would lose. Court shifted the burden of proof to each defendant to show that he had not caused the harm. The defendants were no more able to prove whose shot had hit the plaintiff than he was, so the result was that they were both liable for the eye injury. Rule of Summers v. Tice: Where two defendants commit substantially similar negligent acts, one of which caused the plaintiffs injury, the burden of proof shifts to each defendant to show that he did not cause the harm. If they cannot make that showing, both will be held liable for the plaintiffs loss. Summers DOES NOT hold that every time the plaintiff sues more than one defendant, the burden of proof shifts to the defendants on the issue of causation. [Chapter 8, E&E: Complex Issues in Factual Causation]

Causation in DES cases: Because DES was marketed in chemically identical form by over 200 companies, a plaintiff injured by DES exposure faces a very difficult cause-in-fact problem: Even if all companies were negligent for marketing the drug, only one of themthe manufacturer of the DES pills her mother tookcaused her injuries. Unless a plaintiffs mother recalls the shape, color, or brand of DES she took, the burden of proving causation will mean she will lose. To avoid this outcome, the CA Supreme Court in Sindell v. Abbott Laboratories fashioned the marketshare liability theory, which allows the plaintiff to sue a number of manufacturers andassuming they are found at faulthold each liable for part of the plaintiffs damages. Under the Sindell approach, each manufacturers share of liability is determined by the proportional share of DES it sold in the relevant market area. While it serves several of tort laws basic goalscompensation for the plaintiff and deterrence of negligent conductit arguably goes beyond the traditional role of courts in tort cases, by holding parties liable who caused no harm to the plaintiff before the court. Three variations on the market-share liability approach: Martin v. Abbott Labs (1984): P may sue one DES manufacturer, and that defendant may implead other DES makers. If it does, all makers before the court are presumed to have equal market shares, so plaintiff does not have to shoulder the burden of establishing market shares. If defendants offer no proof as to market share, they will each be held liable for a pro rata share of the plaintiffs damages. (This is an example of several or proportionate liability). Abel v. Eli Lilly & Co. (1984): Approach to DES liability modeled on Summers v. Tice. P may recover by joining all defendants who might have sold the drug ingested by her mother. Any defendant may avoid liability by proving that it did not manufacture the DES in question. Any maker who does not make such proof is jointly and severally liable to the plaintiff for her entire damages. This means that P may recover full damages from any one of the defendants, and it becomes the job of the defendants to sort out their respective proportions of liability and payment. Hymowitz v. Eli Lilly & Co. (1989): P who proves that she was injured by her mothers ingestion of DES recovers from any defendant who participated in the US market for DES. Recovery is in proportion to the national market share. If less than all makers are before the courtwhich will virtually always be soP will recover less than full damages, since each maker pays only in proportion to its market share. This is radical because it uses the national market share to ascertain proportions of liability & bars any maker from proving that it did not make the DES that injured the plaintiff. The Court in Hymowitz said: It is merely a windfall for a producer to escape liability solely because it manufactured a more identifiable pill, or sole only to certain drugstores. These fortuities in no way diminish the culpability of a defendant for marketing the product, which is the basis of liability here. Market share liability is a very controversial doctrine. Causation in Multiple Exposure cases: What to do when all of the parties in question exposed D to asbestos, etc.? Courts have invoked the substantial factor test for cause in fact in these types of cases. The jury is left to consider, based on the evidence of each defendants contribution to the risk, whether its product was a substantial factor in causing Ps asbestosis. If the exposure to Company #6 was minimal, the jury may conclude it did not meaningfully contribute to the harm. But if Company #6s product was there on a consistent basis and its asbestos particles were more than a minimal percentage of the exposure, they would be free to conclude that it had created Ps asbestosis, even though P would have probably contracted it from other manufacturers products anyway. The test allows the jury to find the defendant liable if it contributed significantly to the risk of plaintiffs injury.

W Causation in Toxic Exposure cases: See pages 166-8 (E&E) Causation in Loss-of-a-Chance cases: The loss of a chance problem requires fact-finder to compare what did happen to what would have happened had the defendant not been negligent (delay in diagnosing cancer). Here, the statistical evidence establishes that defendants negligence decreased plaintiffs chance of survival, but cannot resolve the issue of whether she would have survived if promptly diagnosed. Most courts now use the proportional approach, allowing the jury to value the damages in proportion to the chance lost due to the defendants negligence. Problem: this solution allows courts to overcompensate the plaintiff in every case in which the decedent would have died anyway, and undercompensates in every case where the delayed diagnosis caused the death. [Chapter 9, E&E: Proximate Cause] The parameters of the problem: Defendants cannot be held liable for every consequence of their conduct, even if that conduct is negligent. Unless actual causation is found, there is no need to consider issues of proximate cause at all. If the defendant was not a cause-in-fact of the harm, the court will dismiss the case without reaching the complex policy question of whether liability will follow. For this reason, courts often describe the proximate cause problem as one of legal cause, not whether the defendants act was a cause-in-fact of the plaintiffs harm. Courts recognize that there must be some further limit on liability apart from the cause-in-fact requirement. A line must be drawn somewhere to limit liability for the consequences of a negligent act. The problem is: how to define that limit? There are two main tests for proximate cause: (1) Direct Cause Test and (2) Foreseeability The Direct Cause Test: In In Re Polemis and Furness, Withy & Co. (1921), the court held that D is liable if his conduct is the direct cause of the plaintiffs injury, as opposed to a remote cause. In Polemis, a workman dropped a board into the hold of Ps ship, which caused a spark and ignited petrol vapors into the hold, destroying the ship. Although the explosion was deemed unforeseeable, the court held that the defendant was liable because the negligent act of its employee was the direct cause of the harm. Although the English court questioned Polemis in Overseas Tankship, direct cause still appears in some proximate cause cases. Problem: Direct Cause Test seems to suggest that liability would be cut off where subsequent conduct or intervening cause contributes to some tortious activity. Foreseeability/Scope of the Risk Test: Under this approach, the court considers whether the defendant, at the time he acted, could foresee the risk that injured the plaintiff. Under this foreseeability/scope of the risk approach, the court considers what the risks were that made the defendants conduct negligent in the first place. If the defendant should have anticipated a particular risk at the time he acted, and he negligently failed to avert that

risk, he would be liable if that risk caused the plaintiffs harm. Restatement (Second) of Torts, Section 283. For example, where a driver drives too fast, she should foresee that a collision could follow, injuring another motorist. But only the most bleakly neurotic pessimist who drove too fast would anticipate that her victim would be injured/die in a hospital fire three days later. The foreseeability/scope of the risk approach to proximate cause has the virtue that it provides an analytical basis for consistent decision making. The foreseeability test relates the scope of liability to the faulty aspect of the defendants conduct, and gives us a question to ask about that conduct, rather than relying on a phrase like direct cause or an intuitive guess in limiting liability. The judge or jury can ask what unreasonable risks the defendant should have anticipated at the time of her tortious action, and compare those risks to what actually occurred. The two most famous proximate cause cases, Overseas Tankship (The Wagon Mound) and Palsgraf v. Long Island R.R., both exemplify a scope-of-the-risk approach to the problem of proximate cause. In Palsgraf, the defendants conductors were negligent in assisting a rushing passenger onto a moving train, causing him to drop a package. Although there was no reason for the conductors to suspect it, the package contained firecrackers, which exploded, overturning some scales a distance away. The scales fell and injured Mrs. Palsgraf. Although the railroads employees were evidently negligent in Palsgraf, the railroad argued that their negligence only posed a foreseeable risk of injury to the passenger or his package, not to Mrs. Palsgraf. Cardozo held that the duty to avoid injuring others extends only to those risks the actor should anticipate from her negligent act. Here, the unreasonable risk created by the conductors conduct was that the passenger or his package would be injured, not Mrs. Palsgraf. Since the conductors would not have anticipated injury to her from their conduct, they owed no duty to avoid the injury and were not negligent in relation to her. Since she was an unforeseeable plaintiff to whom no unreasonable risk was to be anticipated, Mrs. Palsgraf was denied recovery. There is no doctrine of transferred negligence analogous to that of transferred intent in intentional tort cases. In Wagon Mound, the defendants oil fouled the waters around the plaintiffs dock, where welding was in process. Because of its high ignition point, the oil was unlikely to burn, but it did, through a strange concatenation of circumstances found to be unforeseeable. Other injury to the dock, however, was foreseeable, and in fact took place: the fouling of the docks by the oil. The dock owner argued that, since the defendant could foresee some injury to the dock, it was liable for all injury which actually resulted. It was held that P could only recover for the injuries that the defendant should have anticipated at the time it released the oil into the water. It would be liable for fouling the slips of the dock, a foreseeable consequence of releasing the oil, but not for the unforeseeable fire which destroyed the dock itself. 4 Principles of Proximate Cause: If plaintiffs injury is truly beyond the type of harm to be expected from the defendants conduct, the plaintiff will virtually always go uncompensated. Where a particular type of injury to the plaintiff is foreseeable, the defendant is liable for the injury sustained, even though it is more serious than might have been anticipated. The cases distinguish between unforeseeable consequences of a negligent act from consequences that

are foreseeable but take place in an unusual manner. If unusual manner but foreseeable consequences, you still have established proximate cause. An injury does not have to be likely or probable in order to be foreseeable in proximate cause analysis. Superseding Cause: In many proximate cause cases, the defendant argues that, even if she was negligent, a later act supersedes her negligence and breaks the causal chain. Derdiarian v. Felix Contracting Corp. (1980) is a good example. In Derdiarian, the defendant contractor was working in an excavation in the traveled roadway, and failed to erect a barrier to protect workers from traffic. Dickens, an epileptic who had failed to take his medication, suffered a seizure, lost control of his car, and careened into the excavation, throwing Derdiarian into the air, where his body ignited from a kettle of hot enamel in use for repairs. How does the superseding cause argument play into this? The defendant is negligent (failure to erect the barrier) Some other act happens after the defendants negligence (Dickenss passing out due to failure to take epilepsy meds) The two acts together lead to an injury to the plaintiff (Derdiarians accident) The defendant argued that the bizarre subsequent events leading Dickens car to enter the work area superseded his negligence. Consequently, there was no causal link between its failure to erect the protective barrier and the workers burns. Cause-in-fact analysis: HOWEVER, THE COMPANYS NEGLIGENCE IN FAILING TO PROVIDE A BARRIER WAS CLEARLY A BUT-FOR CAUSE OF DERDIARIANS INJURY. If the company had provided a proper barrier, Derdiarian would not have been injured, even if Dickens lost control of his car. Foreseeability/Scope-of-the-risk Test of Proximate Cause: Working in the middle of a busy street poses a risk that a vehicle will enter the worksite. This is a foreseeable risk that makes it reasonable to put up a barrier. A prime hazard associated with the failure to erect barrier is the possibility that a driver will negligently enter the work site and cause injury to a worker. So, the contractor should be held liable because proximate cause is established since the defendant, at the time he did not put up the barrier, could foresee or should have foreseen the risk that injured Derdiarian. The superseding cause defense rarely wins in court. If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. Restatement (Second) of Torts, 449. New Yorks fire rule, limiting liability for harm only to the house where the fire started, and not to other houses, originated in Ryan v. New York Central Railroad Co. (1866). [Chapter 10, E&E: Duty] Some major factorsprinciples and policy considerationsthat judges consider in deciding whether to impose a duty in a given case include: Judges sense of morality, the foreseeability and extent of the likely harm from the defendants conduct, the burden that the new duty will impose on the defendant, alternative ways of protecting the plaintiffs interest, the increased safety likely to result from imposing the duty, the chilling effect the duty may have on defendants conduct, administrative problems that courts may have in enforcing the duty, plaintiffs compensation, etc. Foreseeability of harm weighs heavily in favor of imposing a duty on the actor, since it makes basic good sense that a defendant should avoid foreseeable injuries to others.

The moral argument is also very strong, especially if a defendant is uniquely positioned to prevent harm. Many factors weigh against imposing duty of care, even if the harm is foreseeable and avoidable. Courts hesitate to create duties that impose excessive burdens on actors. For example, a court will refuse to hold that a hospital has a duty to warn all patients of the risks of medications, on the ground that the duty would be too broad and burdensome, and that it can be better fulfilled by the patients doctor. Administrative problems of enforcing duty may also influence the courts judgment. For many years, courts denied liability for infliction of emotional distress on the ground that the risk of fraudulent claims and excessive litigation was too great. Policies established by legislatures (statutes and regulations) will also influence the courts duty analysis. The Tarasoff court, in concluding that the psychiatrist had a duty to warn, rejected the argument that it would impair doctor-patient confidentiality in part because a statute rejected the privilege in situations involving danger to 3rd parties. In most cases, judges will balance a variety of factors to reach a duty-no duty conclusion. Remember: judicial opinions are not immutable truths; they are pragmatic policy judgments that may be reconsidered by future judges as society and public attitudes evolve. Restatement (Second) of Torts, Section 314: The origin of the rule lay in the early common law distinction between action and inaction, or misfeasance and non-feasance. In the early law one who injured another by a positive affirmative act was held liable without any great regard even for his fault. But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act. Hence, liability for nonfeasance was slow to receive any recognition in the law. Duty Principles First Principle: There is no duty to act or duty to rescue. Second Principle: Those who do act, who choose to engage in activities that create a risk of injury to others, do have a duty to exercise care to avoid injuring others. In such casesthe majority of tort negligence casesthe defendants have let loose dangerous forces that have caused injury. In these cases, the defendants choice to engage in risk-creating conduct for his own benefit imposes the reciprocal duty to exercise due care toward those who may foreseeably be injured by that conduct. The law tolerates, indeed encourages, activity, including activities that impose risks of injury on others. But it had long recognized that those who unleash such forces owe a duty to others to keep that risk to a reasonable level. [Duty is often the least frequently contested element of a negligence claim because most negligence cases arise from active conduct, and it is clear that the actor owed a duty to exercise due care toward those who might foreseeably be injured by it.] Exceptions: The Affirmative Duty to Act Courts have created affirmative duties to act for the protection of another where some policy justifies departing from the no-duty rule. When such a duty of affirmative action is found, the actor may not defend on the basis that I just didnt want to get involved. The law imposes a

duty to get involved. Duty based on a Special Relationship to the Victim: Courts often impose a duty to aid based on a preexisting relationship between the defendant and the person who needs assistance. Restatement (Second) of Torts, 314A, B. In each of these situations, the defendant is not the source of the injury producing conduct. However, because of the defendants relationship to the victim in these cases, the courts impose a duty on the defendant to take affirmative steps to minimize or avert the harm. (E&E, 217). Duty based on a Special Relationship to the Perpetrator: A second category of exceptions to the noduty rule involves situations in which courts impose a duty to control one person to prevent him from injuring others. Examples include the duty of a parent to control a child in certain circumstances Restatement (Second) of Torts, Section 316, and the duty of an employer to control an employee Restatement (Second) of Torts, Section 317. The Restatement also imposes a similar duty on the one who takes charge of another with dangerous propensities, Restatement (Second) of Torts, Section 319: One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. Tarasoff was decided on the basis of this special relationship principle. The Tarasoff court concluded that the psychiatrists relationship to a dangerous patient gave rise to a duty to warn the patients intended victim that the patient had threatened to kill her. Duty based on Innocent Creation of Risk: Restatement (Second) of Torts, Section 321 states: (1) If the actor does an act, and subsequently realizes or should have realized that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect. Gratuitous Services Exception: One who, being under no duty to do so, takes charge of another who is helpless to aid or protect himself is subject to liability to the other for any bodily harm caused by him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actors charge, or (b) the actors discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him. Restatement, Section 324. Once an innocent bystander decides to get involved, he assumes a duty of care, although had he simply stood by and walked away, he would have incurred no liability. See Restatement, 314. The rationale is that the actor, while morally virtuous, is still a risk creator in rendering assistance, and should not be licensed to mishandle the victim with impunity. Duty as a Limiting Factor in Negligence Cases: Courts have limited duty of care in many types of cases, based on policy considerations unique to each situation. Relation of Duty to Proximate Cause: See Palsgraf, where Cardozo used duty analysis to reject Mrs. Palsgrafs claim (the issue was foreseeability; so, he used duty to deny liability & recover even where proximate cause was established and even foreseeable) while Andrews dissent concluded that she was owed a duty and then analyzed the case in terms of proximate cause and foreseeability.

Courts use the concept of proximate cause to limit liability to the foreseeable consequences of a negligent act. By contrast, courts use the duty element to deny liability for consequences that pass the foreseeability test (where, therefore, proximate cause is established). So, courts should use proximate cause analysis to bar liability for unforeseeable harm, and duty analysis to impose policy limits on harm that is foreseeable. Courts can either refuse to impose harm for unforeseeable consequences (using proximate cause) or, for policy reasons, refuse to impose liability for consequences that are foreseeable (using duty). [Chapter 21, E&E: Respondeat Superior & Nondelegable Duties] There are two most types of vicarious liability or respondeat superior: Liability of an employer for the torts of its employees Liability of an employer who employs an independent contractor for torts committed by the independent contractor Policy reasons in favor of/against vicarious liability: DETERRENCE INDIVIDUAL FAIRNESS COMPENSATION LOSS SPREADING/REDISTRIBUTION MORAL BLAMEWORTHINESS POINT 1: Employer should pay because she can select and control her employees, and thereby prevent injuries due to negligence. POINT 2: Employers can reduce accidents by requiring their employees to exercise care, and that making employer liable for employees torts gives them an incentive to enforce careful conduct. COUNTERPOINT 1: However, employers often have no realistic chance of preventing a particular negligent act by an employee, as when an employee drives alone to pick up a package or goes out alone to repair an elevator. Employers cannot hover over their employees from minute to minute, and, as an actuarial matter, even employees who are carefully selected and supervised will be negligent on occasion, despite the employers most rigorous efforts to promote safety. When, the employees are negligent, even if the employer took stringent measures to prevent accidents, he is liable. This liability is TRULY VICARIOUS; it flows automatically from the employees tort, regardless of the care the employer exercised in selecting or supervising him. COUNTERPOINT 2: VICARIOUS LIABILITY MAY EVEN INCREASE THE RISK OF NEGLIGENCE IN MANY CASES, SINCE THE EMPLOYEE, KNOWING THAT THE EMPLOYER WILL BE LIABLE, WILL HAVE LESS INCENTIVE TO EXERCISE DUE CARE. (An Efficiency Analysis of Vicarious Liability Under the Law of Agency, Yale L.J., 1981). COUNTERPOINT 3: Respondeat Superior liability may simply a device to provide a deep pocket defendant able to pay the plaintiffs damages. (Prosser & Keeton, 500). POINT 3: But if so, we could make anyone pay for itthe government or rich folks or insurance companiesmaking employers pay is intended to assure that such compensation comes from a party that is fairly made to pay it. COUNTERPOINT 4: But, isnt requiring that employers pay for it as opposed to some

arbitrarily selected third party just ensuring that uproars wont happen & people wont say that redistribution/i.e. distributive justice has gone too far? POINT 4: LAW & ECONOMICS APPROACH: Employers are in a position to spread the costs of accidents by purchasing liability insurance and raising the price of their products to reflect the inherent accident costs of the enterprise. This economically driven argument looks at the issue not as a matter of individual fairness or moral blame, but rather as a question of the overall societal impact of placing the cost of accidents in one place or another. Respondeat superior ENCOURAGES EMPLOYERS TO INSURE; THE COST OF INSURANCE GETS INCORPORATED INTO THE PRICE OF THE PRODUCT, WHICH CONSEQUENTLY REFLECTS MORE ACCURATELY THE ACTUAL COSTS OF PRODUCING IT, INCLUDING THE ACCIDENT COSTS. POINT 5: The most basic rationale for the doctrine is that the employee acts for the master in the performance of the masters work. In the course of that work, he creates risks to further the masters goals, including the risk of injuries due to negligence. Where such risks are created for the masters benefit, it seems intuitively fair to ascribe the conduct to the party for whose benefit it was undertaken. Duncan v. Findlater (England, 1839): The reason I am liable is this, that by employing an employee I set the whole thing in motion; and what he does, being done for my benefit and under my direction, I am responsible for the consequences of doing it. (479). Acts done at the masters bidding are treated, for liability purposes, as though he had performed them himself. AN EMPLOYER IS ONLY LIABLE FOR THE TORTS OF A WORKER IF THE WORKER IS ITS EMPLOYEE AND ACTS IN THE SCOPE OF HIS EMPLOYMENT. RESTATEMENT (SECOND) OF AGENCY, 220(1) A servant/employee is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the others control or right to control. Courts use a number of factors to determine whether an actor is an employee: The extent of control which the master is authorized to exercise over the details of the work Whether the actor is engaged in a distinct occupation or business Whether the type of work is customarily performed under the employers supervision or by a specialist without supervision, and the extent of the skill required. Who supplies the tools, other equipment, and place of work The length of time for which the person is employed Whether the person is paid on a time basis or by the job Whether the employer is in business, and whether the work is part of the employers regular business. The parties belief as to the nature of the relation: An employer is likely to pay employment and workers compensation taxes, to provide insurance, and to comply with various other regulatory requirements regarding employees. The fact that the employer has treated the worker as an employee is suggestive that the master/servant relation actually exists. EVEN IF THE COURT CONCLUDES THAT X WAS YS EMPLOYEE AT THE TIME THAT SHE NEGLIGENTLY INJURED THE PLAINTIFF, Y WILL ONLY BE LIABLE FOR HER NEGLIGENCE IF SHE ACTED IN THE SCOPE OF HER EMPLOYMENT. If X gets into a car accident on her lunch break, Y should probably not be liable. But, Y would be vicariously liable if X hit a passing pedestrian with a ladder while working as a house painter for Ys company. Since the act took place in the course of and for the furtherance of the

companys work, it seems fair that Y should pay. Restatement (Second) of Agency, Section 228 (page 482, E&E): how to determine whether the employee acted within the scope of her employment. Definition of Scope of Employment: Conduct of a servant is within the scope of employment if, but only if: It is of the kind he is employed to perform; It occurs substantially within the authorized time and space limits It is actuated, at least in part, by a purpose to serve the master, and If force is intentionally used by the servant against another, the use of force is not unexpectable by the master. Although early cases limited scope of employment to acts intended to directly further the employers business, the tendency in more recent cases is to hold incidental acts in the course of the work (such as lunch or smoking breaks) within the scope of employment. If the rationale for vicarious liability is that the risks engendered by an enterprise should be absorbed and distributed by that enterprise, it seems supportable to hold the employer liable for such incidental risks. ANOTHER DIFFICULT PROBLEM IS DETERMINING WHEN EMPLOYERS WILL BE HELD VICARIOUSLY LIABLE FOR INTENTIONAL TORTS BY EMPLOYEES. INTENTIONAL TORTS REQUIRE, BY DEFINITION, A DELIBERATE DECISION BY THE ACTOR TO INVADE ANOTHERS RIGHTS. IN ALMOST ALL CASES, SUCH DELIBERATE INVASIONS ARE UNWANTED, DISCOURAGED, AND PROBABLY FORBIDDEN BY THE EMPLOYER. HOWEVER, COURTS DO HOLD EMPLOYERS LIABLE FOR AT LEAST SOME INTENTIONAL TORTS. FOR EXAMPLE, A BOUNCER WHO USES EXCESSIVE FORCE IN EVICTING A PATRON FROM A BAR IS MOTIVATED TO SERVE HIS EMPLOYER, ALBEIT OVERZEALOUSLY. HE IS PROBABLY NOT DOING IT IN THE WAY HIS EMPLOYER WANTS HIM TO, BUT NEITHER IS AN EMPLOYER WHO IS NEGLIGENT. ONCE AGAIN, IF THE BASIS FOR RESPONDEAT SUPERIOR IS THAT THE EMPLOYERS BUSINESS HAS CREATED THE RISK, THESE CASES APPEAR TO BE GOOD CANDIDATES FOR APPLICATION OF THE DOCTRINE. OTHER SCENARIOS: SEXUAL CONTACTS IN THE COURSE OF MEDICAL CARE OR PSYCHOTHERAPY LISA M. V. HENRY MAYO NEWHALL MEMORIAL HOSPITAL: SEXUAL ASSAULT BY ULTRASOUND TECHNICIAN DURING EXAMINATION BIRKNER V. SALT LAKE COUNTY: WORKER ENGAGED IN SEXUAL ACTIVITY WITH PATIENT DURING COUNSELING THESE ACTS CLEARLY WOULD NOT PASS THE MOTIVATION TO SERVE THE EMPLOYER TEST BECAUSE THEY CLEARLY DO NOT SERVE THE MASTERS PURPOSES. BUT THEY ARE A PECULIAR RISK OF CERTAIN KINDS OF WORK. DISTINCTION BETWEEN EMPLOYERS PURPOSES AND AN INDEPENDENT COURSE OF CONDUCT NOT INTENDED BY THE EMPLOYEE TO SERVE ANY PURPOSE OF THE EMPLOYER. WHILE EMPLOYERS ARE GENERALLY LIABLE FOR THE TORTS OF THEIR EMPLOYERS IN THE SCOPE OF EMPLOYMENT, THEY GENERALLY ARE NOT

LIABLE FOR TORTS OF AN INDEPENDENT CONTRACTOR, EVEN THOUGH THESE TORTS ARISE FROM THE CONTRACTORS WORK FOR THE EMPLOYER. RESTATEMENT (SECOND) OF TORTS, 409. THERE ARE NOTABLE EXCEPTIONS, IN WHICH HIRING AN INDEPENDENT CONTRACTOR WILL NOT INSULATE AN OWNER FOR LIABILITY FOR TORTS (SEE E&E 485-6) In such situations, it is often said that the employers duty of care is non-delegable, so that while the owner has delegated the work to an independent contractor in these cases, he cannot delegate away the liability for various tortious acts in the course of the work. [Chapter 12, E&E: Strict Liability for Abnormally Dangerous Activities] Strict liability applies to keepers of wild animals: A possessor of a wild animal is subject to liability to another for harm done by the animal to the other, his person, land or chattels, although the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm. See Restatement (Second) of Torts, Section 507(1). Rationale for imposing strict liability for keeping wild animals (page 265) Rylands v. Fletcher (1866), (affd, 1868) The defendant in Rylands had introduced a dangerous forcea large body of wateronto his land, which escaped unexpectedly and injured his neighbors property. There was no evidence that the defendant had been negligent in his efforts to contain the hazard, but the court held that the keeping of this risk/danger supported strict liability for the resulting damage: We think that the true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there any thing likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. (265). Lord Cairns: narrowed scope of Blackburns rationale by suggesting that strict liability only applied to non-natural uses of land. The spirit of Rylands is to impose strict liability on those who impose grave and truly unusual risks on the community. Current Doctrine for Strict Liability for Abnormally Dangerous Activities: One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. Restatement (Second) of Torts, Section 519(1) Policy Considerations: The liability arises out of the abnormal danger of the activity itself, and the risk it creates, of harm to those in the vicinity. It is founded upon a policy of the law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against the harm when it does in fact occur. The defendants enterprise, in other words, is required to pay its way by compensating for the harm it causes, because of its special, abnormal and dangerous character. (519) Deterrence is central to negligence, but not so much to strict liability for abnormally dangerous

activities A Goals-Oriented Approach to Strict Tort Liability for Abnormally Dangerous Activities, Joseph H. King: (Tort Law and Alternatives, pages 535-542) Loss spreading (distributive justice goal) Loss avoidance (risk reduction) Loss allocation (or internalization) Administrative efficiency Fairness Though he does not mention this, deterrence as a policy consideration is also involved. First, the threat of liability will encourage actors to forgo some risky activities entirely. Because it makes the actor pay for all injuries associated with the activity, strict liability encourages her to consider alternative ways of achieving the same goal. Thus, imposing strict liability may deter very high-risk activity, leading to less high risk activity and fewer accident losses from it. Second, because actors who conduct abnormally dangerous activities must compensate even for blameless injuries, strict liability encourages them to reduce the cost of accidents by taking extra precautions. Thus, the threat of liability will make high risk activities safer, though it cannot make them completely safe. Third, economic analysts (and increasingly courts) argue that losses should be placed on the party who can most easily spread the costs of the enterprise by adding the cost of compensation for accidents resulting from the activity to the price of the product. This policy also supports strict liability for abnormally dangerous activities. A blasting company, for example, can spread the cost of blasting accidents (including non-negligent accidents) by purchasing liability insurance to pay the damages. It will redistribute this cost to consumers of its service by raising the price of its product. See Chavez v. Southern Pacific Transp. Co. (1976). By contrast, if the cost of a blasting injury falls on the victim, she will have no means of reducing its impact by spreading the loss to others. Of course, the increased cost of blasting due to strict liability may lead to a reduction in the amount of blasting done, but if so, this is because the price, adjusted to include the accident costs it imposes, REFLECTS THE TRUE COST OF THE ACTIVITY. Generally, economists think that this internalization of costs of an enterprise a good thing, rather than imposing the injury costs of the enterprise on accident victims who derive NO BENEFIT FROM IT. Under a negligence regime, unlike strict liability, the costs of non-negligent accidents are externalized to their victims, since those victims cannot recover these costs from the defendant. Defining Abnormally Dangerous Activity The First Restatement of Torts confined strict liability to ultrahazardous activities. (519). The Second Restatement, however, applies strict liability to abnormally dangerous activities, which appear to encompass a somewhat broader range of activities. (519). Section 520 of the Second Restatement sets forth 6 factors that courts should consider in deciding whether to impose strict liability. These factors are central to Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (1990). In determining whether an activity is abnormally dangerous, and hence subject to strict liability, the following factors are to be considered: Existence of a high degree of risk of some harm to the person, land or chattels of others; Likelihood that the harm that results from it will be great; Inability to eliminate the risk by the exercise of reasonable care;

Extent to which the activity is not a matter of common usage; Inappropriateness of the activity to the place where it is carried on; and Extent to which its value to the community is outweighed by its dangerous activities (REMEMBER, YOU APPLIED THIS IN THE FIREWORKS HYPOFIT 1, 2, 3 NOT 4, 5, 6). On common usage: activities that are common, like driving, usually require a showing of negligence by the risk-creator/defendant in order for the plaintiff to recover. One rationale is that of reciprocal risk: in the driving example, the plaintiff, who is hit by a car at one time probably travels by car herself at other times, and thus imposes a similar risk of injury on others. By contrast, those who conduct unusual activities such as fumigation or blasting impose hazards on the community that are not generally imposed on them by similar activities of others. Hence, the courts rationale may be that it is only fair to impose strict liability on actors who impose a risk on the community disproportionate to the risks they are exposed to themselves. On inappropriateness of activity to a place: The fact that the activity could have been carried on elsewhere with less risk to the community will strengthen the case for liability, but choosing an appropriate site will probably not, by itself, preclude application of strict liability. In some cases, like Turner v. Big Lake Oil Co. (1936), the fact that the activity is located in an appropriate area, together with other factors, may tip the balance away from strict liability. In Turner, the TX court refused to impose strict liability for impounding salt water in rural areas as part of an oil drilling operation. In rejecting strict liability, the court emphasized the rural nature of the area, the need for such facilities due to lack of rainfall, the common usage of retaining ponds associated with oil drilling, and the great importance of the oil industry to the state (165-66). Importance of the Activity to the Community: The most controversial factor in the Section 520 calculus is the last: the extent to which the activitys value to the community is outweighed by its dangerous attributes. This suggests that a particularly important local industry may escape strict liability, even though it imposes great risk on the community. It also suggests that an actor would be strictly liable for the same activity in a location where there are many industries (and any one is therefore expendable) but not in another where the community depends heavily on the activity. Avoid burdening locally important industries that are fragile with the burden of strict liability If an activity has marginal social or economic value, like stunt flying, strict liability will be imposed. If the activity is not so inherently dangerous that the level of risk will remain high despite conscientious, reasonable efforts to reduce it (i.e., if reasonable care can make the activity generally safe), courts will not impose strict liability. This was the holding of the court in Indiana Harbor Belt R. Co. v. American Cyanamid Co. (1990). If reasonable care will not make the activity generally safe, courts will apply strict liability to the activity. Common usage and inability to eliminate risk by due care (factors D and C) are often determinative in the test for strict liability for abnormally dangerous activities. Note: strict products liability is based on different rationales than strict liability for abnormally dangerous activities and requires proof of different elements. [Chapter 15, E&E: Personal Injury Damages & Compensation] Courts award compensatory damages to personal injury plaintiffs with the aim of "repairing the plaintiff's injury" or "making him whole as nearly as that may be done by an award of money." Clearly, this goal is little more than an idle dream in most cases: No amount of money

could possibly compensate an active, healthy adult rendered paraplegic in an auto accident, a child disfigured by severe burns, or a patient brain-damaged by excessive anesthesia. But, a remedy that provides a paraplegic with a 2 million dollar trust fund is still a good deal better than nothing. Hence, in the spirit of linguistic precision, what tort law truly endeavors is to provide the injured plaintiff a sum of money adequate to compensate him, though certainly not to restore him to his pre-injury position.

The Single Recovery Rule: Plaintiff must seek compensation for all his losses from the tort in a single trial. That is, plaintiff must prove past damages and any future losses he is likely to incur/experience from the injury--such as future medical expenses, lost wages, or medical complications--at the time of trial. Pros and Cons: 1. It would be administratively unfeasible for courts to re-open cases every time the plaintiff incurred further losses due to an injury, to allow recovery for those losses. 2. However, while the "single recovery rule" makes administrative sense, it places the plaintiff in a difficult, at times untenable position. It is often very difficult to anticipate whether P will need future operations, have his work life expectancy shortened, or incur further disabilities due to the present injury. However, under the single recovery rule, P must make just such predictions about events that may lie far in the future--and prove them by a preponderance of the evidence. Damages in Tort Actions, Section 9.06[5][a]: A plaintiff can recover for future consequences of an injury if he proves that they are "reasonably probable," but an award may not be based on "mere conjecture or speculation." 3 Elements of Compensatory Damages: 1) MEDICAL & RELATED EXPENSES P is entitled to compensation for all medical costs of diagnosing and treating the injuries resulting from the tort, such as doctor and hospital bills, medicines and special therapeutic equipment, rehabilitation therapy, travel for medical treatment and on-going nursing care. These services are incurred to cope with the consequences of the accident, and their cost shifted to the tortfeasor who caused the injury rather than borne by the victim Past medical expenses are easy to calculate. However, even such tangible economic losses as medical costs become extremely difficult to calculate if they will extend for a significant period into the future. Under the single recovery rule, plaintiff must offer proof of what his future medical expenses will be, years or decades before they occur, and the jury must attach dollar sums to these future expenses based on the evidence before them. Assigning a monetary value to a surgery that will occur 20 years down the road may be a leap in the dark. In addition to costs of surgery, jury must take into account not only compensation for medical expenses but also the associated pain and any resulting loss of earnings, the costs of rehabilitation, and so forth. 2) LOST EARNINGS & EARNING CAPACITY Lost earnings refers to past income losses due to the injury, that is, earnings lost between the time of injury and the time of trial. Lost earning capacity refers to loss of future earning potential. If the injury will prevent plaintiff from going back to work for a period of time, it has affected his

ability to continue to earn $$$ in the future. Under the single recovery rule, he must be compensated at trial for his future loss. Lost earnings are fairly easy to calculate--the jury will base them on P's earnings record for the period immediately prior to the accident, evidence of his likely advancement had he not been injured, and evidence concerning changes in the salary structure of his employer up to time of trial. Future earning capacity is very difficult to calculate, however: First, jury will have to determine how long the plaintiff would have worked had he not been injured-this is contingent on the type of work he did, life expectancy, state of health prior to injury, and level of interest in his work. Secondly, jury would have to determine what type of work plaintiff would have done had he not been injured. This is easy in some circumstances, but suppose the plaintiff is a student, or a 5-year-old child with no work history. Fringe benefits: health insurance, company car, educational credits, bonuses, and stock options, retirement fund, etc. 3) PAIN AND SUFFERING INCLUDES NOT ONLY PHYSICAL BUT ALSO EMOTIONAL, PSYCHOLOGICAL AND MENTAL PAIN DUE TO ACCIDENT. Includes physical pain from the impact of an accident; on-going pain from a wound; long-term discomfort from a permanent condition such as a limp or a weakened back. Also includes the pain of physical procedures such as surgery, grafting or physical therapy. In addition, includes mental suffering from the consequences of an injury, including humiliation, anguish, embarrassment living with permanent disfigurement, frustration, fright, fear of recurrence of incident, depression. Loss of Enjoyment of Life: In addition to the unpleasant sensations and emotions usually associated with the concept of pain and suffering, tort victims also frequently suffer loss of opportunity to engage in many of life's pleasurable activities. If X does not have a leg, he cannot run, play tennis, walk normally, etc. McDougald v. Garber (1989) views loss of enjoyment of life as a type of "pain and suffering," not a separate element of compensatory damages. In McDougald, the court took this approach and refused to give the jury a separate instruction on "loss of enjoyment" damages, on the ground that it duplicates the pain and suffering instruction and invites the jury to compensate the plaintiff twice for the same losses. Thompson v. National R.R. Passenger Corp. (1980) and Boan v. Blackwell (2001) recognized loss of enjoyment as a distinct category of compensable damages. Whether considered separately or together, the central element is that everyone--the lawyers, judges, jury--understands that whatever called, such restrictions on the plaintiff's ability to function as a whole person are proper elements in the assessment of damages. ECONOMIC DAMAGES: lost earnings and earning capacity, and medical and other out-ofpocket expenses are considered economic or tangible damages, since they are actual dollar losses that can be calculated. NON-ECONOMIC DAMAGES: pain and suffering and loss of enjoyment of life are noneconomic or intangible damages which the jury has no mathematical or accounting basis for

valuing. (Infliction of emotional distress and loss of consortium also generally fall into this category). ***Note: remember the movie which enacted caps on actions seeking damages for personal injury on noneconomic damages in medical malpractice cases. CON: Thse caps on compensatory damages limit the recovery of those who need it most: Plaintiffs with lesser injuries recover fully for their intangible damages, while those most seriously injured may recover only a fraction of their intangible damages. ***Note: in addition to compensatory damages, plaintiffs may also be awarded nominal and punitive damages in a tort action. ***Nominal damages may sometimes be granted if the plaintiff proves the elements of a tort but has suffered no actual damages. ***Punitive damages are sometimes awarded in tort cases to punish the defendant for particularly egregious conduct, and to deter such conduct in the future. Punitive damages may be awarded in addition to compensatory damages. [Chapter 19, E&E: Joint & Several Liability] Scenario: X is a construction worker; leaves a worksite unguarded. Y is a jogger; he carelessly jogs and bumps into P, who falls into the hole created by the construction site and breaks her leg. Both X's and Y's acts are a "but for" cause of the harm, even though X and Y did not act in concert. X and Y are "joint tortfeasors" simply because each contributed to a single, indivisible injury to P and are each fully liable for that injury. X and Y are said to be "jointly and severally liable" for the injury, meaning that each is liable for the full amount of the plaintiff's damages, and may be sued for those damages either singly or along with the other tortfeasors. If P prevails in an action against joint tortfeasors, she is entitled to a judgment against each for her full damages. For example, if the jury found X and Y to both be liable, and X's damages to be $27,000, the court could enter judgment against both X and Y for $27,000. Had she sued X alone, she would only be able to recover $27,000 from him. Joint and several liability does not apply, however, if the defendants caused separate damages. If X's action was not a "but for" cause of P, only Y was, X will not be liable for the damage. Where the damages could be rationally apportioned separately to the two tortfeasors, the courts could do so. Restatement (Second) of Torts. If X sues Y and is awarded $27,000 in damages but can only recover $20,000 (let's say Y has a $20,000 insurance policy), X is not barred from suing Z to collect the additional $7,000. [Chapter 13, E&E: Strict Products Liability: Theory of Recovery] Courts not only apply strict liability for abnormally dangerous activities but also for consumer products. The rationale for allowing plaintiffs to plead strict liability is because a manufacturer's negligence is often difficult to prove--it's quite onerous for the plaintiff to prove that a

manufacturer's defect caused plaintiff's injury. Although a plaintiff can invoke res ipsa loquitur, the jury may deny negligence recovery, accepting the defendant's argument that although it used due care such defects may still occur. Greenman v. Yuba Products, Inc. (1963) Seminal case in the development of strict liability for product defects Justice Traynor held a manufacturer strictly liable for an injury caused by a defective product. Greenman held that strict liability was appropriate in order "to insure that the costs of injuries resulting from defective products are borne by the manufacturers who put such products on the market rather than by the injured persons who are powerless to protect themselves." Policy Rationales supporting Strict Liability for Consumer Products: 1. The increasing sophistication of products makes it difficult for consumers to assess their risks, emphasizing the need for manufacturers to do so. 2. The lack of any personal relationship between manufacturers and consumers means that buyers cannot rely on such relationships to assure quality. Instead, they must rely on information provided by the distant manufacturer. 3. Additionally, manufacturers encourage purchase of their products by extensive advertising. Courts have viewed such aggressive sales as fairly involving a quid pro quo: that manufacturers stand behind their products when they cause injuries. 4. Manufacturers should be held liable for injuries from defective products because they can redistribute that liability, through insurance, to all users of the product. Thus, the price of the product will reflect its true cost, rather than externalizing accident costs to innocent victims. 5. Finally, the risk of liability will encourage manufacturers to make their products safer and to discover and disclose product risks that the consumer might not recognize. Restatement (Second) of Torts, Section 402A Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold (2) The rule stated in Subsection (1) applies through (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller Elements of the rule: 402 authorizes recovery 1. by a user or consumer 2. from a seller 3. who is engaged in the business of selling the product 4. for physical harm 5. caused by a defective product 6. that is unreasonably dangerous ***Fault is not an element of the claim; the seller of a consumer product is liable even though he has exercised all possible due care, and if he has not, he is liable both for strict liability and

negligence. There are 3 major types of product defects: (1) manufacturing defects, (2) design defects, (3) defects due to failure to warn. Manufacturing defects: Plaintiff must allege and show that the product was defective because it did not meet the manufacturer's own specifications for the product. Design defects: product was defectively designed because it failed to eliminate the risk of injuries from its use. The product can impose some level of risk--indeed most consumer products do--but the risk must not be unreasonably dangerous. Many courts use the "consumer expectations" test, which focuses on the consumer's expectations about the product. Section 402A defines "unreasonably dangerous" as something that is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Others apply the risk-utility balancing test. Under this approach, the fact-finder decides, applying a number of factors, whether the product's design represents a fair balance between the cost of designing the product to prevent the risk of injury, the effect the redesign would have on the utility of the product, and the extent of the risk that the product poses. This test may be difficult for plaintiffs because it may require them to hire expert witnesses that are able to demonstrate a safer way to design the product. The Third Restatement endorses the consumer expectations approach but also requires the plaintiff to establish that "a reasonable alternative design" would have eliminated the risk that injured the plaintiff. Restatement (Third) of Torts, Products, Section 2(b). Defects Due to Failure to Warn Failure to warn users or consumers of the dangers associated with a product's use. What dangers does the manufacturer have the duty to warn users about? Third Restatement, Section 402A: "Warnings must be provided for inherent risks that reasonably foreseeable product users and consumers would reasonably deem material or significant in deciding whether to use or consume the product." The warning must include the (1) nature of the risk; (2) the severity; (3) the scope; and (4) the means of avoidance. A product may also be defective because it provides inadequate directions for use or assembly. Directions are different from warnings, and both may be required. [Chapter 17, E&E: Wrongful Death & Survival Comp.] Wrongful death claims arise for damages for tortiously causing the death of another. Usually allow damages for the losses suffered by surviving relatives, such as loss of economic support or society of the defendant. Survival claims are actions brought by the representative of the estate of the deceased person. Unlike wrongful death actions, this allows the estate of a decedent to enforce a tort claim for damages suffered by the decedent BEFORE death, which she could have enforced personally had she lived. Haydn and Mozart Hypothetical: H and M are playing a duet on the piano and suddenly, a huge chandelier above them falls on them. The chandelier immediately kills Mozart and seriously injures

Haydn. Six months later, Haydn dies of his injuries. Mozart's death would give rise to a claim for wrongful death. Haydn would give rise to both a survival claim for his pre-death losses (such as pain and suffering, medical expenses and lost wages) and a wrongful death claim, since he ultimately died from his injuries. Because actions for wrongful death are based on statutes, they differ from state to state. An action for wrongful death is not a separate tort in itself, it is an action for a recognized tort--such as battery, negligence, or products liability--in which the victim is killed rather than injured. In a wrongful death claim based on negligence, for example, the plaintiff must still prove the same elements as in a personal injury negligence claim: duty, breach, causation, and damages. The proof of the first three elements will be exactly the same as in a personal injury case. The major difference between a wrongful death case and other negligence cases involves the last element: damages. Wrongful death recoveries compensate the surviving spouse, children of the deceased and grandchildren (if deceased's child is deceased, too). If decedent has no child or grandchild but a spouse and parents, they will be compensated. Losses compensated: loss of financial support, household services, loss of companionship, sexual consortium, advice, emotional support (same as loss of consortium losses) but also funeral and burial expenses, grief and mental anguish of learning of the death.

Survival Actions: No personal action or cause of action is lost by the death of either party, but the same survives, for and against the personal representative of the deceased (the decedent's executor or administrator) Include medical expenses, lost wages, and pain and suffering P sustained from the date of the accident until death. [Chapter 14, E&E: Strict Products Liability: Defenses] [Chapter 11, E&E: Emotional Distress & Loss of Consortium] [Chapter 22, E&E: Assumption of Risk Defense] [Chapter 23, E&E: Comparative Negligence Defense] [Chapter 24, E&E: Allocation of Loss] Comparative negligence led to proportional or comparative contribution among tortfeasors. What this means is that, if P is 10% negligent, X is 60% negligent, and Y is 30% negligent (P for plaintiff), then P recovers $60,000 from X and $30,000 from Y. Under joint and several liability, P could recover the entire sum of $90,000 from either defendant. Many states with contribution statutes have adopted proportional or comparative contribution: "The right of contribution exists among joint tortfeasors; provided, however, that when there is a disproportion of fault among joint tortfeasors, the relative degree of fault of the joint tortfeasors shall be considered in determining their pro rata shares." If P settled with X to recover only $40,000 from X, then under joint and several liability, she could still sue and recover $50,000 from Y. But, under proportional liability, she would only be able to recover $30,000 from Y, leaving her $20,000 short.

This is the problem with proportional liability: although fair from the defendant's perspective, it casts the burden of the insolvent tortfeasor on the plaintiff. If X can only pay a percentage of fault he is liable for, then the plaintiff is left with an incomplete recovery.

INTENTIONAL TORTS: [Chapter 1, E&E: Battery] Battery is the intentional infliction of a harmful or offensive contact with the person of the plaintiff. See Restatement (Second) of Torts, Section 13. Under this definition, the defendant (1) must act; (2) her act must be intentional (in the restricted sense peculiar to tort law); (3) the act must cause a contact with the victim; (4) and the intended contact must be either harmful or offensive to the victim (use a reasonable person standard to evaluate whether something is "harmful or offensive, not a subjective standard). The Intent Requirement: Battery protects against intentional invasions of the plaintiff's physical integrity. No contact is intentional if it is not the result of a voluntary act. If D faints and hits P, he is not liable for battery because he committed the act involuntarily, being unconscious at the time. If X pushes Y into P, Y is not liable for battery; however, X may be liable to both Y and P. To commit a battery, the defendant must not only intend to act; she must act for the purpose of inflicting a harmful or offensive contact on the plaintiff, or realize that such a contact is substantially certain to result: Restatement (Second) of Torts, 8A: "The word "intent" is usedto denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. The purpose of the intent requirement is to confine intentional tort liability to cases in which the defendant acts with a higher level of culpability than mere carelessness: where she acts with a purpose, or with knowledge that the act will cause harmful or offensive contact to the victim. The intent requirement in the Restatement is disjunctive--that is, it is met either by a purpose to cause the tortious contact or substantial certainty that such a contact will result. Bad faith or ill will is not required in order to fulfill the tort of battery. An actor can possess tortious intent even though she bears the victim no ill will whatsoever. If X sees Y walking along the street below and deliberately throws a bucket of water on her from a second story window, it is no defense that she was simply emptying her bucket and did not mean to offend Y. In intentional tort terms, she intends those contacts that she is substantially certain will occur, as well as those she desires to see happen. Transferred Intent: Although intentional tort law requires a very specific type of intent, the standard may be met if the actor intends to commit a battery on one person but actually/accidentally inflicts one on somebody else. In other words, X's tortious intent to hit Y transfers to P. Restatement (Second) of Torts, 16(2). The rationale is that the tortfeasor's act is just as culpable when her aim is bad as when it is good; it would be unconscionable if she were exonerated just because she hit the wrong person. Battery can turn into assault and assault into battery. A defendant can also be charged with both. Harmful or Offensive Contact:

Not all intentional contacts will support a claim for battery. It would be too burdensome to allow P--a hypersensitive plaintiff--to sue everyone who jostles her in a New York subway. To distinguish between such common, socially accepted contacts and actionable batteries, courts required that D intend to cause either a harmful or an offensive contact. Restatement (Second) of Torts, Section 15 defines bodily harm as "any physical impairment of the condition of another's body, or physical pain or illness." Of course, if the harm is minor, P will recover very little, or be limited to nominal damages, but the courts will still have vindicated her right to physical autonomy. Even if the contact is not harmful, it is tortious if it is offensive. Courts use an objective definition of offensive contact. Restatement (Second) of Torts, Section 19 defines contact as offensive if "it offends a reasonable sense of personal dignity." Under the Restatement, a contact is offensive if a reasonable person in the circumstances of the victim would find the particular contact offensive. An actor is not liable under this definition for a contact that is considered socially acceptable (i.e., "which would not offend a "reasonable sense of personal dignity") even if the victim turns out to be hypersensitive and truly offended (think the film that she showed us--a thumbs up is extremely offensive to individuals who are originally from the Middle East). What a reasonable person would find offensive varies greatly with the circumstances. Often a prior course of conduct between the parties indicates that they accept contacts that would ordinarily be considered offensive.

Difference Between Contacts and Consequences: Restatement (Second) of Torts, Section 8A: if X pushes Y, not intending for her to fall, and she falls down the steps and breaks her neck, X is liable for all the consequences of the act. Section 8A is confusing in that it says that the actor must intend all the "consequences" of the act in order to be held liable for battery. However, the consequences Section 8A refers to is the harmful or offensive contact itself, not the resulting injuries. As long as the actor intended the contact, element (2) of intent is fulfilled and he is liable for the tort of battery. What is the rationale? Batteries are intentional invasions of others' right of personal security. One purpose of intentional tort law is to deter such unauthorized contacts from the outset. Imposing the cost of all resulting injuries on the action should serve this deterrent purpose. After all, intentional torts are eminently avoidable: Because they require a deliberate choice to invade another's rights, the actor need only restrain herself to avoid the invasion. Where she fails to do so, it seems appropriate to impose all resulting damages--even unintended damages-on her rather than the innocent victim. The Contact Requirement: The defendant need not actually touch the plaintiff at all to fulfill a cause of action for battery, or even be present at the time of the contact. The contact requirement has also been extended to include objects immediately associated with the victim's body. X's sense of personal space can be breached as effectively if Y knocks off her hat as by directly touching her. [Chapter 2, E&E: Assault] Unlike battery, which requires a tangible, physical invasion, assault protects one form of

mental tranquility, the right to be free from fear or apprehension of unwanted contact. The principle behind this is that one of the most important objects to be attained by the laws and institutions of a civilized society is the right to feel secure against unwanted assaults. Without such security society loses most of its value. We have a right to live in society without being put in fear of personal harm. Restatement (Second) of Torts, Section 21, defines assault: (1) An actor is subject to liability to another for assault if: (a) he acts intending to cause a lawful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. Under the Restatement definition, the defendant must (1) act with intent (2) to place the victim in apprehension of a harmful or offensive contact or to make such a contact; and (3) the victim must reasonably be placed in apprehension of such a contact. Intent: Assault, like battery, requires intentional conduct, and in the same restrictive sense. The defendant must act with the purpose to cause apprehension of a contact or substantial certainty that the apprehension will result. Restatement (Second), 8A. Thus, in assault and battery cases, defendant MAY NOT avoid liability by claiming that he did not mean to place the plaintiff in fear of an unwanted touching, if he knew to a substantial certainty that fear of a touching would result. When D loses control of her car and veers dangerously towards P, she does not fulfill elements of assault because she is not acting (1) with intent (2) to place victim in apprehension of harmful or offensive contact. Only element 3 is fulfilled--the victim is reasonably placed in apprehension of such a contact--but this is not enough. Elements 1 and 2 must also be fulfilled. In other words, even if D acts in the sense that she deliberately swerves towards P, she lacks intent in the intentional tort sense if she does not desire or know to a substantial certainty that she will hit/or place P in apprehension that she will hit P. On the other hand, D who attempts to batter the plaintiff but misses is still liable for assault if P is placed in apprehension of harmful or offensive contact (notice that all three elements are fulfilled). Note that P is not placed in apprehension (i.e., he is looking the other way when D tries to throw something at him, or doesn't notice D), then he has not cause of action for assault. This is similar to the doctrine of transferred intent: D intended to lace P's drink but Y drank it instead. Even though D did not intend to batter Y, he is still liable for battery to Y. His liability to P transfers to Y. Because assault only protects against fear of a harmful or offensive contact, P must prove that she feared the type of contact that D would have inflicted if he battered her. So, when analyzing whether P has claim for assault, you must make out the harmful or offensive element as in battery. If contact would not have been harmful or offensive had it been made, the threat of the contact is not assault either. Remember: we use the reasonable person standard--not a subjective standard--to determine harmful or offensive contact. It does not matter if P is hypersensitive-we still use objective, reasonable person standard. In order to constitute assault, D must place P in apprehension of a harmful or offensive contact. Apprehension means the perception or anticipation of harmful or offensive contact, rather than fright. Mere anticipation or expectation of offensive or harmful contact is enough. Also, the apprehended contact must be imminent--that is, the defendant's contact must

cause the victim to expect that he is about to be touched. Fear of a future contact will not support liability for assault. So, threatening to kill someone at a later date does not meet the requirement for the tort of assault. "Imminent""does not mean immediate, in the sense of instantaneous contact, as where the other sees the actor's fist about to strike his nose. It means rather that there will be no significant delay. It is not necessary that one shall be within striking distance of the other, or that a weapon pointed at the other shall be in a condition for instant discharge. It is enough that one is so close to striking distance that he can reach the other almost at once, or that he can make the weapon ready for discharge in a very short interval of time. Restatement (Second) of Torts, Section 29. Assault turns on whether the defendant's act would place a reasonable person in apprehension of an unwanted contact, NOT whether the aggressor is in fact able to make the threatened contact. If X is pointing a toy pistol at Y and she thinks it is real, X will be liable for assault. If X points a toy pistol at Y and she knows it is a toy, X will NOT be liable for assault. Are mere words enough to constitute assault? See Restatement, Section 31: Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in a reasonable apprehension of an imminent harmful or offensive contact with his person. Present Conditional Threats still constitute assault: "If you don't go to bed with me, I'll throw you out the window." The tort of assault is different from criminal assault.

[Chapter 3, E&E: Defenses to Intentional Torts] The defendant may defend by simply negating one or more of the prima facie elements of the tort. Or, defendant may show that even if the prima facie elements of the tort are shown, she is not liable anyway, because of additional facts that allow her to avoid liability. These are called affirmative defenses. Statute of Limitations--the claim is barred because the statutory period within which suit was to be brought has expired. D might plead that D had signed a release from liability. Self-defense: D was warding off a blow from P Consent: P consented to D's action Necessity: (police officers) An otherwise tortious act was privileged because it was done to prevent a greater harm. Medical consent: If patient is unconscious, doctors may obtain consent from a relative (substituted consent or "proxy decision-making) If a patient is unconscious and no relative is available, doctors usually have the emergency privilege to treat the unconscious person who requires immediate attention. The cases essentially recognize the privilege to operate on person if that person would have consented to it, and the law sees that a reasonable person would consent rather than involve a risk of death by not consenting. See pages 166-8 (E&E)

Unless actual causation is found in this case, there is no need to consider issues of proximate cause at all. Under the but-for-test, we must consider whether the plaintiff would have suffered the harm--the clinical depression in this case--but for the defendant's negligence. If we go back and replay the accident, and substitute D's failure to answer the physician's call with D's answer of the physician's phone call each time the phone rang--it seems certain that the physician would have been able to give P the name of the pharmacy where her hiccup prescription has been placed and she, in obtaining it, would have been able to obtain the medicine, take it, and rid herself of her hiccups. Had she gotten rid of her hiccups, her physical discomfort and anxiety would have vanished with her hiccups, she would have regained her appetite for sleeping, eating and thinking straight and it's safe to assume that her presentation would have gone better than a dismal failure. Hence, she would have probably been able to secure the contract, and would not be a victim of clinical depression at the moment. I concede, of course, that this conclusion is based on the following assumptions: first, that she was not an inherently terrible presenter or a sufferer of stage fright, and was fairly adept at giving conference presentations, and that the pressure of securing a negotiating contract did not also affect her adversely and cause her to dismally fail in delivering her presentation. Under this assumptions, we can securely conclude that the D's negligence is a sine qua non of the P's injury, and the cause-in-fact element is met. Thus, once we have established that D failed to exercise due care (elements one and two of the

tort of negligence) and that D's act is a "sine qua non" of P's injury (element three), we can move on to proximate cause. Under the direct cause test (Polemis), we must determine whether D's act or conduct is the direct cause of the plaintiff's injury, as opposed to a "remote cause." This will be difficult to establish because it suggests that D's liability would be cut off where subsequent conduct or intervening cause contributes to some tortious activity (Overseas Tankship). Here, the defendant may argue that the plaintiff was contributorily negligent because she could have sought out the doctor herself by calling his office, rather than waiting for him to call her about the prescription. The court would probably not buy this defense and limit the defendant's liability because since we have already established the D had a duty to exercise reasonable care and did not exercise it by failing to answer the phone, and "but-for" that failure to answer the phone, the plaintiff would have received her prescription, P would pass the burden of establishing that D's conduct was the direct cause of P's injury. The court, however, is likely to utilize the foreseeability approach in order to analyze whether the hotel, at the time it acted, could foresee the risk that injured the plaintiff. Under this scope of the risk approach, "If the defendant should have anticipated a particular risk at the time he acted, and he negligently failed to aver that risk, he would be liable if that risk caused the plaintiff's harm" (Restatement, 2nd of Torts, Section 283). The policy behind using the foreseeability/scope of the risk approach is that the foreseeability relates to the scope of liability to the faulty aspect of the defendant's conduct, and gives us a question to ask about that conduct, rather than relying on a phrase like "direct cause" or an intuitive guess in limiting liability. The judge and jury can ask what reasonable risks the defendant should have anticipated at the time of her tortious action, and compare those risks to what actually occurred (Palsgraf). Unlike the defendants in Palsgraf, the defendants in this case should have anticipated injury to P from their conduct, however, like in Wagon Mound, that scope of the risk would only extend to her dismal failure at the presentation, not her clinical depression afterward. The clinical depression, being unforeseeable, is truly beyond the type of harm to be expected from the defendant's conduct, so P will not be compensated for the depression. An injury does not have to be likely or probable in order to be foreseeable in proximate cause analysis. Types of policy considerations: (1) Deterrence (2) Compensation (3) Moral Blameworthiness (4) Community mores and expectations (5) Efficacy of judicial administration