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A. PHYSICAL Harms (Trespass)
1. Person
o Battery: An act
• (1) with the intent
• (2) to inflict harmful or offensive contact
• (3) that causes harmful or offensive contact.
o Harmful OR offensive contact
• Physical contact with P is required. The contact does not need to be direct, so long as it results from D’s intent.
Garratt v. Dailey (kid pulls chair out from under woman, intends to cause her contact with the ground) [7]
• “Offensive” depends on the context. See Vosburg v. Putney (Kick inappropriate for classroom) [handout]
• Injury may be either harmful or offensive, and does not need to relate to the contact. See Vosburg v. Putney
(kick resulted in amputation) [handout].
o Intent
• Must intend the contact not the injury. Vosberg (kick did not intend to break leg)
• Substantial certainty that contact will result from their actions. Garratt (knew effect of pulling chair)
• Can infer intent to cause harm from evidence that the D knew that harm was substantially certain to
• Transferred Intent: Harm does not have to be to the target person – intent to cause harm is sufficient to
determine liability
• Otherwise, we will protect D’s when it is unclear who the D intends to harm.
2. Land
o Strict Property Definition: goal of torts to define where the property line is. See Dougherty v. Stepp (surveyor
trespassed, even though there was no harm) [10]
• Rules v. Standards: Property is a bright line, the court requires no contect in orer to redera decision. Low
admin costs (contrast with standards in personal interest)
o EXCEPTION: Intangible tresspass: Must prove physical damage to win a claim for trespass for ingantible intrusions.
See Public Service v. Van Wyk (no physical proof of damage from noise, radiation, and electromagnetic fields) [12]
• Liability without physical proof would overwhelm the system, stop life (industry).
3. Chattels/Property
o Strict Property Definition: Treat gas meters as real property of the gas company in order to promote the policy goal of
not messing with gas meters in Blondell v. Consolidated Gas [14]
• Formalism v. Functionalism: Used strict formal interpretation to justify a functionalist motive
o Internet: Burden on P to show actual damage to computer from spam. Intel Corp vs. Hamidi [14].
• Law does not wan to authorize recovery in response to harmless/mistaken touching of property
• Rules v. Standards: context dependant so standard, not strict rule
• Damages must arise from D’s actions. See Utube.com vs. youtube.com (actual damages caused by users)
o Functionalism guided determination of “What is a chattel?”

o Assault: Apprehension of immanent personal harm (ie suffering of a battery)Emotional damages are real considerations.
See I. de S. and Wife vs. W. de S. (Hatchet) [79]
• Immanent: in time and space: Conditional threats do not count. See Tuberville v. Savage (If the judges were not
in town…)[] (Admin Costs)
• Battery: must qualify as a battery if carried through (to check the extra-sensitive P) (Deterrence)
o Intentional Infliction of Emotional Distress:
• Extreme or Outrageous conduct: an action that could not fail to produce grave effects to a reasonable person.
See Wilkinson v. Downtown (Your husband had been in a serious accident) [] (Admin Costs, Rules v. Standards)

B. DEFENSES to Trespass
o Consent: Implicit or explicit privilege.
• Weigh welfarism or utilitarianism vs. rights
• Consent to surgery essential. Despite no intent to injure, an unconsented to operation is unlawful. See Mohr v.
Williams (Surgery on different ear, despite care, violates rights. Nominal damages) [35].
• Recovery limited by intent, nature and good faith of doctor
• However, doesn’t a doctor have privilege? Isn’t the patient’s consent implied? Information

o Insanity: Not a defense – the intent to act, not to harm, is key to claim. See McGuire vs. Almy (Cartaker hit with a desk
leg) [50]
• Functional: deters lies, encourages others to restrain him
• Fault vs. Non-fault Liability: even though no one was at fault here, someone has to bear the liability

o Self-Defense: The response of a reasonable person in the place of D. See Courvoisier vs. Raymond (Shot a cop
because a reasonable person would have thought the cop was an attacker) [54]
• Reasonable force
• Deterrence: Moral Hazard – strict liability would encourage the self-defender to retreat or hide instead of
engaging. BUT no one is really thinking about the law in a fight.

o Defense of Property: Must give notice because the goal is deterrence, not harm, and force cannot be excessive. See
Bird v. Holdbrook (Hidden spring gun) [?]
• Disclose information: allows people to coordinate activities

o Recapture of Chattels: 3 Factors:

(1) Possession by owner
(2) Purely wrongful taking or conversion, without a claim of right
(3) Hot pursuit (some immediacy)
• Claim of right was in dispute, but want to discourage self-help and encourage arbitration.
• Reasonable force

o Necessity: Public Necessity is an absolute privilege without compensation

• Private Necessity is conditioned on compensating the other party’s loss.
• An actor may enter land of another in order to avoid serious harm. See Ploof v. Putnam (unmoored
boat in a storm)
• Liable for costs that result from the trespass. See Vincent v. Lake Erie Transportaion (Moored boat
breaks dock)
o Assigning liability -> contracting around (solves Ploof “alternate possibility” objection) to
create incentive for dock to protect the dock or the boat to minimize costs.
o Information Asymmetry: Docks standard, boats vary – put liability on boat owner because
he knows what is at stake with his boat and can make the decision whether it is worth it to
assume the risk.
• Relatoinal vs. Stranger:
• Assign price to injury
• Assign liability for strangers, can contract around

Witt’s Final Torts Exam page 2 of 21

A. HISTORY: Strict Liability vs. Negligence
• Property: intention irrelevant, simply crossing the property boundary sufficient to constitute trespass. See The
Thorns Case (Hull v. Orange) []
• Person: must be “utterly without fault” (exercising reasonable care not sufficient). See Weaver v. Ward (Soldier
shot another soldier is liable because he pulled the trigger, despite no other fault) []
• Setting in motion a force that is liable to cause injury: is sufficient to create liability, despite intermediate
actors. See Scott v. Shepherd (firecracker) [115].
• Dissent: everyone in between had a chance to not keep throwing it – disincentivises discretion.
• Case vs. trespass: indirect (must prove negligence) vs. direct (must prove utterly without fault)
• Liable for all foreseeable consequences: See Guille v. Swan (Balloon landing) [118]
• Standard of Ordinary Care: no liability in the absence of some wrongful intent or negligence. See Brown v.
Kendall (Dogfight) [123]
• Deterrence: REDUCE deterrence in order to assist fledgling industry and encourage economic growth
and trade by limiting liability. Help doers by removing the threat of strict liability.
o However, Kendall was not industrial, PLUS never know when you will be D or P (protects
doers too) AND parties will still do the cost benefit analysis either way, except now weighing
the probability of loss against the cost of loss in order to determine an efficient level of
• Administrative Cost: Waste of resources to litigate mistakes – increases threshold to win suits
o However, each claim is more complicated to litigated (negligence is not as bright a line as SL)
• Corrective Justice: Choice is central to correction – negligence highlights the importance of choice
• However, correcting harm is good – split the cost?
• Compensation: insurance solves
• However, SL insures people against random harm and spreads cost among all buyers of the
eventual product
• Likely to cause mischief: such as water, cattle -> strict liability. See Fletcher v. Rylands (leaky reservoir)
• Natural vs. Unnatural use of land: uncommon/unusual activity cannot be predicted or protected
against: Asymmetry of information puts burden on those with information
• Cannot “get out of the way” of property
• HOWEVER: if you live in civil society, you have to give up the right to non-negligent injury because
(1) we all benefit from not being strictly liable and (2) we all benefit from civil society/progress. See
Losee v. Buchanan [141].
• We must use dangerous things. Benefits of strict liability does not outweigh the cost. See
Brown v. Collins (Scared horse breaks post, no strict liability) [139].


o Failure to use reasonable care to avoid injury or damages to another person or property (or, in the case of contributory
negligence, oneself). Reasonable care depends on the circumstances, factual issue for the jury.
• Foreseeability: If an event is unprecedented, a reasonable person would not have expected it. See Blyth v.
Waterworks (Unprecedented frost burst pipes)
• Circumstances matter: Reasonable person in a an emergency situation: See Lyons v. Midnight Sun Transport
(Truck swerved to avoid Lyons, hit her anyway).
o The Objective Standard: Holmes [177]
• Administrative Costs: Subjective standard would require psychological finding of the D’s state of mind. Here,
it is easier for a jury to apply their own reasoning instead of determining how careful the D is capable of being.
• However, juries always look at complex psychological issues (intent) AND who is the reasonable
person AND technical cases create complexity regardless
• Deterrence: Subjective standard incentivizes fraud and lying (See Vaughan v. Menlove where “dimwittedness”
is not a defense [171]).
• Corrective Justice: Encourages D to exercise all care and skill.
• However, there is no incentive if he simply cannot do it i.e. really is dimwitted (benefit to encouraging
• Coordination: Allows people to determine the amount of care they can reasonably expect from others in order
to determine their own level of insurance.
• Variable findings of juries calls predictability into question
o Exceptions:
• Children: The semi-objective standard – measure reasonableness of the child’s actions against other children of
similar age, intelligence and experience.
• Deterrence: children are not deterred by laws, judgment proof
• Coordination: People expect children to be less capable and so can prepare
• EXCEPTION when they do not know, ie when a child is performing an adult activity. See
Dellwo v. Pearson (minor driving a motorboat liable) [handout]
• Physical Disability (must be apparent): City has duty because they can reasonably anticipate blind people
walking the street. See Fletcher v. City of Aberdeen (hole that wasn’t blocked off) [190].
• EXCEPTION: Sudden mental incapacity parallels heart attack or stroke – no knowledge that would
have reasonably warned her. See Breunig v. American Family Insurance Co. (Batman) [185]
• Coordination: visible & apparent physical disabilities can be anticipated, mental cannot
• ALSO disabled person must take precautions
• Admin. Costs: Easy to determine physical defect (doctor’s note)
• Beginners: held to the same standard because we want to encourage skill (reasonable person) and because we
do not want victims to subsidize beginners.
• Experts: Require to exercise the skill and knowledge normally possessed by members of that profession
(reasonable expert)
• Assumption of the risk: Paid caregiver of insane person assumes the danger. See Gould v. American Family
Mutual Insurance [189]

B. THE HAND FORMULA: B = PL Cost/Benefit calculations. See US v. Carroll Towing (cost of manning the barge at all
times much lower than the potential damage) [206] Ex ante
o Probability that particular act will cause harm
o Magnitude of that harm if it occurs
o Burden of precautions/value of interest sacrificed

o Testing the Hand Formula:

• Two classes at risk, duty to protect those in most serious and immediate danger. Add second P*L. See Cooley
v. Public Service Co. (Power lines crossed, caused noise. Alternative baskets would be dangerous to walking
people) [203].
• ALSO P must provide alternative.
• Emergency doctrine doesn’t add anything to the reasonable person in the circumstances doctrine. See Lyons.
• Common Carriers must use “utmost care.” See Andrews v. United Airlines (falling luggage) [217]
• Obscure Accidents: are not foreseeable by the reasonable man. No BPL when P too low. See Blyth (above)
• Value of life outweighs contributory negligence. Must act with reasonable regard, not rashly, as a prudent
person would. See Eckert v. Long Island RR (dies saving a baby from train) [196]
• Seavey’s Paradox: If A intentionally destroys 10 cents worth of B’s property to save his life, A must
pay BUT if he takes a 10 percent chance of killing B to save is own life, his conduct is not wrongful.
• Contributory Negligence uses BPL too. See Greene v. Sibley (tripped over worker, B of looking < PL)
o BPL vs. Strict Liability
• Activity level vs. Care level: due care does not consider the option of abstaining from activity, strict liability
• Deterrence: inspire the same calculus, same action, even though SL makes risky activities less profitable
• Compensation: BPL fairer because, SL is more strict. Insurance still solves, so loss spreading is key.
• Corrective Justice: BPL is intention based, while SL is cause based
• Admin. SL is easier to determine, but means more cases

Witt’s Final Torts Exam page 4 of 21

Custom (market driven) vs. legislature (capture) vs. jury (ignorant)
o Evidence of compliance with an industry custom is useful in informing reasonableness, but not binding.
o Rationale for following custom:
• Reflects the judgment of a large amount of people
• Predictable
• Demonstrates reasonability/feasibility of alternative
• Demonstrate importance to jury
o When not to follow:
• Entire industry is wrong. See The T.J. Hooper (No custom to have radios on barges, but still liable) [224]
• Capture: industry hijacks law at the expense of public. See Mayhew v. Sullivan Mining (Not custom to rail-off
mines, but industry has a responsibility to the public) [223]
• Jury decides reasonableness of the custom, especially in terms of those who are not party to the
custom. See Trimarco v. Klein (D systemically imposed risk on tenants that they do not know about,
private custom) [handout]
o Gap Filling: Reasonable custom, allocate initial loss to the party with the most information.
o Medical Malpractice: a doctor must “use that degree of skill and leaning which is normally possessed and used by
doctors in good standing in a similar practice in similar communities and under like circumstances.” See Kalsbeck v.
Westview [238]
• Community more national now, although local resources are a factor. See Brune v. Belinkoff [241]
• Automatically negligent if not within industry standard or respectable minority
• EXCEPTION: Over-testing not required (overburden the system) See Helling v. Carey [238]


o The reasonable person does not violate statutes (sets floor, not ceiling): negligence per se when
[1] Violation of a safety statute (without excuse) leads to an
• Jury has no power to relax statutory duty (exception: Must be a cause). See Martin v. Herzog
(Contributorily negligent if you didn’t have your car lights on) [270]
[2] Accident/injury that is what the law is trying to prevent and the
• Unrelated injury does not count. See Gorris v. Scott (Sheep/fence protect from disease) [268] and Burnett
v. Imery’s Marble (Trucker injured while tarping truck, not mining) [267].
[3] Victim is in the “class of persons” the statute is designed to protect
• Protect pipes under the streets from heavy trucks (Stimpson v. Wellington permit to drive on city streets) but
not trucker covering a truck because he is not mining (Burnett v. Imerys’ Marble) [267]
o Reasonableness: when adhesion to statute would cause more damage. See Telda vs. Ellman (walking on wrong side of
the road b/c safer). Bad law.
o Legislative intent essential. See Uhr v. Greenbush Central School District (Did not intend to create a private cause of
action for failure to check for scoliosis)
o Judge determines whether facts may allow negligence to be inferred (as a matter of law), jurors decide whether it ought
to be, given the facts. See Metropolitan Railway v. Jackson
o Goodman rule of a constant standard of reasonability at RR crossings problematic (not going to get of the car to check)
[290]. Prefer a more functional standard where the jury decides. See Pokora v. Wabash (similar facts, Cardozo allows
jury to find for P) [291]
o Consider:
• “reasonable people” vs. judge’s experience and stake
• standard v. rule (predictability)
• Bias
• Deliberation v. flaws of group decision making
• Nullification
• Legitimacy vs. jury manipulation, selection
• Judge’s susceptible to capture
o Burden of production (evidence) and burden of persuasion (convincing evidence)
• Status Quo bias
• Information Asymmetry: easier to require proof than disproof

o Res Ipsa Loquitur “the thing speaks for itself” and circumstantial evidence satisfy the burden of production
(1) Event that does not ordinarily happen without negligence
(2) Must be caused by an agency/instrumental fully in D’s control
• Does not need to be actual physical control, ultimate responsibility is what matters
(3) Not due to voluntary action or contribution from P

• Information asymmetry: burden shifts when P can’t know exactly what happened. See Byrne v. Boadle (P is
walking and is hit by a falling barrel of flour, D is liable)
• Still must meet burden of persuasion, rare to win summary judgment. See Morejon v. Rais (Roofing material)
• Liability for malfunction:
• Malfunction justifies res ipsa. See Colmenares v. Sun Alliance (Handrail stopped, clear malfunction)
• Blurry line. See Rose v. New York Port Authority (hit by automatic door could be either)
• EXCEPT when there is a possibility of alternate causation. See Holzhauer v. Saks (Escalator stopped,
someone could have pressed the stop button)
• HOWEVER, must prove used reasonable care. See Howard v. Wal-Mart (Where P slips on soap in isle)
• The Bus Problem: cannot reduce res ipsa to probability, want to encourage discovery of relevant facts.
• Was it feasible to get information
• How much does it cost to get information
• Medical Malpractice: multiple D’s, P cannot easily get information. See Ybarra v. Spangard (drugs) [316].

Witt’s Final Torts Exam page 6 of 21

o Action only lies if (1) D was negligent and (2) no want of ordinary care to avoid by P.
• Strict interpretation: C-Neg is a complete bar because it “could have been avoided” in Butterfield v. Forrester
o Limits:
• Contributory negligence must be related to the harm. See Smithwick v. Hall & Upson (Boss’s instruction was
not related to the harm that occurred: Icebox) [340] and Mahoney v. Beatman (Speeding accident unrelated to
original accident, not contrib. neg: Rolls) [340]
• Seatbelt rule: (Spier v. Barker: not wearing seatbelt could be a factor for damages) MOST COURTS
do not mitigate damages when a P is in no way responsible. See Derheim v. N. Fiorito
• D bears the burden of proof on issues of contrib neg and causal relationship
• Property rights: No affirmative duty to avoid harm. See LeRoy Fibre Co. v. Chicago (Stacks of Flax near the
tracks. D used his land properly, does not have duty to use property in such a way as to avoid injury caused by
• This analysis builds in the outcome, does not provide any analysis [Witt]
• Who is in the better position ot avoid this risk? Contract around.
o Reasoning
• Deterrence: Want P to take good care
• CJ: not fair if both at fault (But share cost?)
• Compensation: Status quo bias
• Individualism: Last Clear chance

o “Pure” comparative negligence: receive percentage of damages/liability no matter what the percentages are. See Li v.
Yellow Cab (P’s recoverable damages reduced by level in which they were also negligent)
o “Modified”: if fault of P > D, no recovery and vice versa. Small variations (51/49) make this a problem
o Applications:
• Got rid of “Last Clear Chance”
• Assumption of risk still applies
• Strict liability and sudden emergencies aply
• Intentional torts differ, P’s negligence shouldn’t even be considered
• Violation of a safety act: can be, but not automatically
• No “seat belt” defense
• Imputed Negligence rejected by statutes, Rst.
• Limited Capacity applies
o Statutes:
• Federal Employer’s Liability Act [397]: adoption of comparative negligence
• Rst. 3rd and NY have pure comparative negligence regimes
o Primary assumption of risk: Matter of law, D prevails because he has not been negligent
• Willfully subject yourself to a risky activity, you assume responsibility for injuries resulting from that risk. See
Murphy v. Steeplechase Amusement (The Flopper)
• EXCEPTION: When there are enough injuries due to the inherent nature of the ride
• EXCEPTION: latent defect (ie not apparent)
• Part of the game. See Maddox v. City of New York (slips on field and blows out knee. Assumed risk)
• EXCEPTION: unexpected. See Maisonave v. The New York Bears (should have net to cover food court)
o Secondary assumption of risk: P took an unreasonable risk (like comparative neg)
• Expertise/knowledge counts against an actor. See Meistrich v. Casino (Decent skater knew ice should have
been zamboni’d better)
• Employee assumes liability if he is aware of special risk. See Lamson v. American Axe & Tool (hatchet)
• Best cost avoider: employee closest
• Information asymmetry: employer knows statistics
• Contract for more money to compensate for the risk
• Fellow servants do not make the employer liable for their negligence – assumed in risk of employment.
See Farwell v. Boston & Worchester RR
o Mandatory Liability for Hazardous activities: Skiing see Dalury v. S-K-I Ltd. (seller cannot contract out of its
responsibility to skiers) [374]. Factors to consider from Tunkl (Charitable Hospital: an agreement is invalid if it does
some (or all) of the following:)
• 1. Is a business generally suitable for public regulation (a dangerous one)
• 2. Offers a service of great importance to the public (hospitals)
• 3. Offers its service to all comers (not limited to a special population)
• 4. Holds disproportionate negotiating power
• 5. Mandates standard contract without offering insurance (waiver of liability = decline to sell insurance)
• 6. The purchaser is placed under the control of the seller, subject to the risk of negligence at the hands of the

Witt’s Final Torts Exam page 8 of 21

o P must prove that the D’s act or admission caused the injury for which P claims compensation. The “but-for” test
requires the jury to engage in a counterfactual analysis (many but-for causes, many of which are not intuitively the
“cause”). Must be negligent and the legal cause of the harm. See New York Century v. Grimstad (Lack of flotation
device was not the “but for” cause of drowning – inability to swim was) [451].
• Do not have to prove alternate causalities, just a preponderance of the evidence. See Stubbs v. United States
(dirty city water was a likely enough cause of Typhoid fever to allow a jury trial) BUT stats are not convincing.
• Causation key (Martin v. Herzog: not wearing seatbelt not a but-for cause)
• Rare disease, high dosage (not just medication) was cause of disease. See Zuchowicz v. United States (primary
pulmonary hypertension as a result of Danocrine overdose)
o Toxic Substances and over-deterrence
• Agent orange litigation: three levels of causation relevant in toxic tort cases: (1)Substance can cause injury (2)
source of substance is D (3) Exposeure to D’s substance caused the issue.
o Deterrence: if we fine all infractions despite the cause of injury and use the fund to compensate injured parties, solves
deterrence (or insurance).
o Loss Spreading: fine fund solves compensation. However, the pain of loss is what drives deterrence and insurance
decreases deterrence. ALSO the wrongdoer will not be punished (CJ). ALSO more suits against non-injured parties
compel them to bear the costs
o Corrective Justice: fine punishes those who create risk, but there is no moral connection between the injury and the
o Administrative Costs: more legal proceedings per victim compensated


o “But for” would have found no liability for lost chance. However, decreased chance of survival (due to failure to
diagnose) is sufficient proximate cause to overcome summary judgment
• (Only when it goes from 39 to 25%) in Herskovitz v. Group Health (Court attempted to hold doctor liable for
damage he caused by using proportionate test (39-25)/39) Three approaches:
• Absolute: 30-25=14% (underdeter)
• Proportionate: (39-25)/39=36 (over-deterrence)
• Probabilistic: (39-25)/75 (optimal deterrence?)
• DISSENT: 51% chance of dying anyway determines liability – no recovery.
o Recover lost chance, but not lost life (impossible to determine).
o Only applies to medical malpractice because medicine is highly statistical, remedy systemic under deterrence.

o Several Liability: determine liability damages by share of fault of multiple D’s (and P)
o Joint Liability: any of the D’s is completely liable. See Kingston v. Chicago (RR responsible for damage even though
there were two fires b/c RR’s fire was bigger/badder)
• Substantial Factor (vs. But-for) solves for mutual causation
o Joint and Several: any of D’s completely liable, but D can bring action to re-allocate damages among all potential D’s
• D’s act in concert. See Ybarra v. Spangard (ABOVE)
• Multiple sufficient causes (Injury is indivisible)
• Alternative Liability (injuries are concurrent). See Summers v. Tice (D’s must prove who is at fault for
• Market Share Liability. See Sindell v. Abbott (Cannot determine which company produced the bad drugs)
• (1) All named D’s are potential tortfeasors (2) The harmful products are identical (fungible goods) (3)P
can’t ID responsible party through no fault of their own and (4) limited number of D’s whose share of
the maret is known and are responsible for a large percentage of the market
• Multiple D’s mess up proportion. See Hymowitz v. Eli Lilly [494]

Witt’s Final Torts Exam page 10 of 21

o Proximate cause is not causation but a doctrine of limited liability
o First, determine value (Deter, Admin, CJ, )
o Criteria:
• Foreseeability (Wagon Mound)
• Increased Risk (Berry v. Sugar Notch coincidence: where speeding was but-for,but not proximate cause for
falling tree)
• Harm within Risk (Doughty, Hughes)
• Directness/Continuousness (Bacon, In re Polemus) DON’T USE
• Natural and Probable (Ryan v. NY RR where damages beyond the first house were too remote) DON’T USE
• Good: Moral hazard, Insurance solves, no limit
• BAD: Reduce incentives for precautions, no loss spreading, no corrective justice
• Active (Pittsburg)
• Intervening or superceding

A. UNEXPECTED HARM: Forseeable (In re Polemis old rule, liable for all effects that are direct consequences)
• It is foreseeable that oil burns on water, so D is liable. See Wagon Mound II (in response to I)
• EXCEPTION: Egg Shell Plaintiff: D takes P as he finds him. See Benn v. Thomas
• Despite proclivity to disease: cancer in Smith v. Brian Leech or schizophrenia in Steinhauser v. Hertz
• D also assumes risk of breaking something valuable
• D pays less to more robust P’s, do not have to consider likely damages, just actual
• Overdeters, insurance policy for egg shell P, P best cost avoider

• Coincidence is not causation: Central of Georgia v. Prince (missed stop, hotel, burns) [504]
• Intervening 3rd party actors: must be direct effect of negligence
• Intervention does not remove liability: Lane v. Haliburton
• Crime: Generally a 3rd person committing an intentional tort is a superseding cause of harm, even if
D’s negligence afforded the opportunity for the crime (see Watson v. Kentucky employee lit gas on fire)
o The D should have realized the likelihood of the crime. See Brower v. NY Central (Robbery
normal, RR increased rsik of robbery by hitting the wagon, and is liable b/c they didn’t
protect) [507]
o The D knew a 3rd party would do such a thing. See Hines v. Garrett (missed stop, raped while
walking back, recovers because of the increased risk of rape that reasonably arose from
mistake) [504]
• Subsequent Medical attention: D liable for all subsequent injuries incurred in reasonable attempts to
save P in Stoleson, Pridham, Anaya and Wagner
• No moral hazard (already injured), easy to administer
• Situation: Liable when risky situation arose from negligence, see Marshall v. Nugent (Driver hit while
direct traffic around accident), not liable when original danger comes to rest, see Pittsburg Reduction
Co v. Horton (parent should have protect child form explosive) [505]
• Rescue: Danger invites rescue, want to encourage rescue, so can recover for injury sustained during
reasonable efforts to rescue. See Wagner v. International Ry. [512].
• UNLESS outweighed by intervening actor’s negligence. See McLaughlin v. Mines Safety Appliances
(heating blocks)
o Foreseeable Damages: MOTIVATED BY INTENTION OF THE COURT. D is not liable for damage caused by an
event that was not a consequence of the risk or hazard for which the D was negligent. See Doughty v. Turner (danger
of splash, being burned, is not the same as danger of a burn from an explosion)
• But…in Huges v. Lord Advocate, held liable for lamps that triggered an explosion.

D. UNEXPECTED PERSON Palsgraf v. Long Island RR

• Duty to P? (Judge decides)
• Writing wrongs, not expedience or policy
• Wrongs are reciprocal, relational, and more limited conception of liability
• What about amoral things like insurance?
• “I’ll know it when I see it” BPL
• Limits liability by denying proximate cause, not allowing question to go to jury
• ANDREWS (Dissenting)
• Once we establish wrongfulness, question of liability is one of expediency
• Universal duty of care
• Torts is the Science of Policy Making
• Allocate question of proximate cause to jury
• Extended liability
Judicial Philosophy
Righting wrongs Science of policy making

Mrs. Palsgraf ? : want to help M.P Andrews

LI R.R. Cardozo ? : want to encourage industry and commerce

(moral hazard, insurance policy, ex-post moral hazard
– over-claiming)
o Huge Damages: Kinsman Transit (flood because boat was improperly moored) Who should bear the costs of activities
that are important to the city? Jointly liable.
• Kinsman II: No liability for foreseeable delay of others from accident.
• No deterrent effect.

Petition of Kinsman Transit Co. (Kinsman I): Negligently tied ship broke free, careened into and knocked another ship loose, both
crashed into a draw bridge, created a dam and caused massive flooding. ♦ City and shipowner held jointly liable for downstream harm
because crew tending the drawbridge were statutorily required to raise it for drifting vessels and the harm at issue would have been
avoided if they were alert.
- Limitation of forseeability ignored when the consequences of negligent conduct are direct. (Polemis)
- Ship posed a known danger to all ships, structures down river when it was insecurely moored.
o Law of admiralty limits liability of ship owner to value of ship unless owner had knowledge of or
was in privity w/ the act giving rise to the ship’s liability, in this case Steinbrenner not liable b/c
he entrusted ship to more experienced man.
Kinsman Transit (II): Two companies, one w/ ship of grain and another obligated to unload corn sued b/c they could not fulfill their
contractual obligations due to the accident. ♦ Damages too remote for recovery, comparing it to a negligent traffic accident, should the
man who causes a car crash be liable to all who are late to work? No.

Witt’s Final Torts Exam page 12 of 21

o Duty to exercise reasonable care in order to avoid injury. Given negligence, judge establishes whether there was a duty
or not, as in Palsgraff.
o “Duty” is conclusory – it does not move the analysis forward but simply explains the outcome. See Strauss v. Belle
Realty where Con Ed is not liable for fall in the dark because not a paying customer so no duty. Dissent: holding them
liable would provide deterrence, CJ and loss spreading. However:
• Cross subsidization of people who pay higher prices to those who do not.
• Moral Hazard: well insured people would hurt themselves just to collect.

o Even when the cost is low and the benefit is large because:
• Libertarian: Do not want to force people to act
• Coordination (util): who should help?
• Crowding Out: Administrative nightmare figuring out who is liable for failure to act when there are may
o Landowners owe no liability to trespassers: (old rule involved tresspassers, licensees and invitees) See Buch v. Amory
(factory did not owe trespassing kids any duty of care) and Robert Addie & Sons v. Dumbreck
• Trespassers: not owed any duty
• Licensees: social guests, not allowed to trap them and must reveal concealed dangers
• Invitees: business guests (ie shoppers) owe them huge duty.
• CALIFORNIA: reasonable person standard. See Rowland v. Christian (Should have warned guest of broken
o Rst § 315: No duty unless special relationship that imposes duty. See Harper v. Herman (even if D knew P was going
to dive and that diving would kill him/make him quadrapoligic, there was no duty to act)
o Doctors do not need to help people, even if it is no burden on them. See Hurley v. Eddingfield (Doctor not liable when
he refused to treat a dying man and that man died, because no duty of care)


o Invitees: reasonable care (above)
o Attractive Nuisance: infant trespassers, lured onto premises by something tempting that is created (“artificial condition”
of the land) and maintained by D.
• However, if a child knows the risks, he assumes them.
o Landlord-Tenant: landlord typically the best cost avoider. See Kline v. 1500 Mass Ave (building is liable for bad
o Duty to 3rd parties:
• Psychiatrist-Patient: special relationship to protect those that the patient threatens to harm. See Tarasoft.
• Must have actual notice, constructive not sufficient, for there to be a duty
• Rehab center owes no duty to public by accepting a parolee. See Beauchene v. Sayanon.
• No specific threats of death means no notice. See Thompson v. County of Alemeda (juvee theat to kill)
• Psycologist takes charge of patient in outpatient settings where they have access to restraint. See
Morgan v. Fairfield.
o Negligent entrustment: (enabling tort) knows or should know: cannot place unreasonable burden on gifts… See Vince
v. Wilson (aunt buys car even though she knows her nephew cannot drive)
o Alcohol: illegal or negligent sales that result in harm. local statutes vary, some in CA that impose liability but legislation
o Unlocked Cars: possible liability:
• Liable when there is a statute against leaving key in ignition –for all resulting damages. See Ross v. Hartman.
• Not liable when statute bars: no guarantee the car will be stolen. See Richards v. Stanley.
o Originally, no recovery for pure emotional loss (Mitchell: horses scare her, miscarriage etc) in an attempt to avoid fraud
and too much litigation. However, exceptions when it was accompanied by physical contact (Porter: dust in eyes). And
then for the zone of danger (Falzone: wife watches husband get hit). Injured while trying to get away (Buchanan v. West
Jersey). Willful and malicious NIED and results in physical suffering. Finally, proximity, relationship and visibility
(Dillon: mom standing there when kid gets hit). At this point, the exceptions swallowed the rule and the courts just
asked whether it is reasonably foreseeable based on the Dillon criteria (CALIFORNIA).

o Some movement back to strict rules (Metro-North Commuter Rail v. Buckley: freaks out because of asbestos awareness
class, must prove sickness/ “danger of impact”). Can recover in Norfolk and Western v. Ayers (asbestos) because he is
actually sick and concerned about his death. DISSENT: money paid to whiners is money unavailable to people with real
symptoms later


o Generally not recoverable. See 532 Madison Ave v. Finlandia (too many people would sue when building materials fell
and blocked off access to places of business)
o EXCEPT when D owes a duty to take reasonable care in avoiding economic damages to an identifiable class that the D
knows or should know is likely to suffer damages from misconduct: See People Express Airlines (Airlines recovers for
shut down terminal)
• Breach must be causally related to losses, foreseeability of P, proximate causation necessary
• Combine scope of liability with “reasonable foreseeabliity” standard

o Loss of consortium is non-recoverable injury. EXCEPTIONS:
• Spouses: can recover. See Diaz v. Eli Lilly.
• Children: most jurisdictions allow parents to bring actions for loss of child’s companionship
• However, not all juris. allow children to bring claims
• Unmarried Partners: typically no cause of action, but changing. See Lozoya v. Sanchez: NM, must rprove
substantial relationship: nature, duration, monogamy, exclusivity, commitment. Burden on P

o Relational
• Parental immunity: “reasonable parent” standard of an “ordinary, prudent parent” See Gibson v. Gibson
• Old rule: court couldn’t maintain tort action against parent
• New Rule: no blanket immunity.
• Court will not question “acts of parental discretion” or second guess parental authority (can
still prosecute criminality) See Goller v. White
• Court does not want to impose on the family relationship, worry about fraud/collusion so they
can collect on insurance (most insurance policies have family exclusions)
• Spousal immunity mostly gone.
o Charitable: donors no longer immune from claims from beneficiaries
o Sovereign: outside the system, unless waived: Federal Torts Claims Act gives a General reasonableness test with series
of no or limited duty exceptions:
• Discretionary function exception: courts will not second guess Gov’t employees as long as they are following
procedure. See Berkovitz v. United States (Failure to follow procedure is not discretion)
• Failure to protect from threats overburdens police. See Riss v. City of New York
o Gun Manufacturer: PLLAA prohibits liability for misuse of guns by others, wanting to prevent the reckless expansion
of common law liability in a heavily ligitated industry
• EXCEPTIONS: negligent entrustment, illicit sales, and warranty claims. See City of New York v. Beretta.

Witt’s Final Torts Exam page 14 of 21

o Employers are vicariously liable for the torts of their employees
• Reasonably foreseeable standard (not rule)
• Was the conduct foreseeable considering the nature of the employment?
• Worker does not have to be doing something within the scope of employment for the employer to be
liable: strict liability. See Ira S. Bushey & Sons v. United States (drunken sailor is reasonably
o Rationale: Admin. Expediency, deterrence, loss spreading, incentivizing rational workplaces, best cost avoider, Coase
(contract around)


o Strict liability
o TEST: Rst. 519
• (1) abnormally dangerous activity, despite utmost care. See Spano v. Perini (blasting) and Rylands (pool of
water) Heeg v. Licht (gunpowder)
• (2) liability limited to the kind of harm the possibility of which makes the activity abnormally dangerous. See
Indiana Harbor Belt RR v. American Cyanamid (negligent storage, not the chemical, caused the leak: best cost
o Factors of “abnormally dangerous”: Rst 520
• (a) high degree of risk
• (b) likelihood of great harm
• (c) inability to eliminate risk through reasonable care
• (d) uncommon usage
• (e) inappropriateness of activity to location
• (f) risk exists even with due care
• (g) value to community vs. dangerous attributes
o Intervening factors that absolve liability: Rst. 522
• (a) conduct of a 3rd person
• (b) action of animal
• (c) force of nature
o Assumption of risk by P bars claim Rst. 523
o Contributory negligence not the same. Rst. 524
• A. if P is abnormally sensitive no strict liability. See Madsen v. East Jordan Irrigation (mink’s ate babies b;/c
blasting, damages too remote).
o 3rd Rst: § 20 much smaller standard, collapsing §§ 519 & 520

o Public Policy entitlement to “undisturbed possession and lawful enjoyment of his own property”
 Hay v. Cohones Co. (explosion to dig canal. Absolutely liable: D has right to blast, but also is liable for
potential damages) [657].
 Booth v. Rome (determine negligence if there was no physical invasion: Public policy to promote building)
[656] Percussive impact not a helpful category: do not want to make blasters insure poorly constructed
o Substantial and unreasonable interference with the right of an owner of land to the use of enjoyment of their land (not
against light or air)
o Rst. 826: Unreasonableness of intentional invasion:
• (a) gravity of the harm outweighs the utility of the actors conduct OR
• (b) the harm is serious and the financial burden of compensation is feasible
o “Coming to nuisance” irrelevant – property changes. See Ensign v. Walls (Dog business) [696]
• Prevent a “race to develop”
• Right to potential use

o Remedial Alternatives: Injunction or damages

Injunction (Property Right) Damages Inalienability

(Entitlement (Entitlement
protected by protected by
damages) law)
Nuisance Whalen Boomer Organs etc
No Fontainebleau Del Webb

• (1) No Nuisance: D enjoins P’s use, creates a property right which P can buy from D
• Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (Spite Tower. No legal right (easements) to light or
air) [687]
• D can contact with P for air right
• (2) Nuisance: P enjoins D’s use, creates a property right which D can buy from P
• Whalen v. Union Bag & Paper Co. (Pulp mill pollutes stream, causing tiny damages to P. P has right to
injunction if damages are small) [701].
• Collective bargaining/holdout theory may prevent contracting around injunction
• (3) Nuisance: D pays damages to P, court bargains for parties and D can choose to pay future damages or stop behavior
• Boomer v. Atlantic Cement Co. (Permanent damages, no injunction, forces neighbors to sell their entitlement
and pressures cement plant to research less pollution) [700]
• Dissent: Public policy, should not force people to contract around nuisances that we know are bad. Encourages
pollution in leas populated and poor areas.
• (4) No Nuisance: P pays damages D, P must purchase right to injunction
• Spur Industries, Inc v. Del E. Webb Development Co. (Ranch was a nuisance without wrongdoing, developer not
free from liability to Ranch owner for losses sustained) [708].

o “Substantial interference with the exercise of a common right of the public”
o Requires “special inquiry” to be able to recover damages
• Allows those with special damges to recover when public bodies/officials will not move on specific claims
• Generally public officials and state Attorney Generals bring public nuisance cases

532 Madison Avenue v. Finlandia: Bricks falling causing lost profits. ♦ Public nuisance only actionable w/ special injury, πs suffered
greater harm than some not a different kind of harm.
Camden County v. Beretta: Gun suit failed public nuisance claim. ♦ Defective products not a public nuisance by law but fall under
product liability, and Δ has a lack of control that bars recovery. Public nuisance claims are typically confined to real property and
violations of public rights.

Witt’s Final Torts Exam page 16 of 21

o History: Started with contract privity (Winterbottom v. Wright) easy to administer, marketplace solves, don’t want
manufacturers to insure all potential users. Then move to negligence which was couched in foreseeability of other
consumers using the car (MacPherson v. Buick). Then strict liability as the best deterrent, best cost avoider (Escola v.
Coca Cola). Problems with insurance:
• Regressive Tax
• Can opt out
• As low risk people start dropping out of the pool, the price goes up
• Pain and suffering insurance hard to meansure/administer

o Modern View: Courts go either way:

o 2nd Restatement: § 402(A): Strict liability.
• (1) Liable when:
• Defective condition
• Unreasonably dangerous
• Physical Harm (not just emotional stress)
• (a) Seller engages in selling the product AND
• (b) It is expected to reach consumer relatively unaltered
• (2) Strict liability even wen
• (a) seller has exercised all possible care
• (b) user/consumer not in privity with seller
• SL gives incentive to learn about risks
• But is based in the shady area of causation (but-for): consumer expectations set terms of what is unreasonably
o 3rd Restatement § 2 of the law of products liability
• (a) Manufacturing defects: Strict liability. See Speller v. Sears (circumstantial approach):
• P must prove product did not perform as intended AND
• exclude all other causes for product failure not attributable to D
• (b) Design defects: reasonable alternative design
• Consumer expectations vs. risk-utility TESTS
• Defective design test: Barker v. Lull
• (1)Product fails to perform a safely as an ordinary consumer would expect when used in an
intended or reasonably foreseeable way
• (2)The benefits of the design do not o/w the risk inherent (only for especially risky/different
things. Generally use consumer expectations) Halliday.
• Burden on D to show there is not excessive preventable danger after P makes a prima facie
case showing injury caused by design
• (c) Warning Defects: reasonable instruction:
• Adequacy of warning: Show safest way to use.No duty to warn if hazard is open and obvious
• Warning/Design defect connection
• Substantial modification and injury arises from modification. See Liariano.
• Unforseeable product misuse
• Assumption of risk
o Cannot disclaim liability: See Hennigsen and Greenman [745]
• Distributors sign and pass product on to consumers anyway
• Risk of exploitation

o Federal Preemption of tort claims:

• 1) When a state law is inconsistent with a federal statute
• 2) When a federal statute is sufficiently comprehensive to occupy the field
• 3) When the enforcement of the state law frustrates the federal scheme
o Breaking a safety standard is negligence per se, but following safety standards generally not
proof of non-negligence (like custom), but for federal safety standards the federal supremacy
clause plays a role.
o Geier v. American Honda Motor Co.: Preemption clause and savings clause cancel?
• Huge incentive to have things decided in one way in federal statutes.
• Three questions court asks to determine whether a suit is pre-empted:
• 1) Does acts expressly preempt the lawsuit with a preemption provision?
• 2) Do ordinary pre-emption principles nonetheless apply?
• 3) Does the lawsuit actually conflict w/ the act itself?
o Warnings: Bates v. Dow, πs allowed to claim that warning labels on pesticides were wrong.
o FDA: Allowing suits to claim a company committed fraud against FDA not allowed
• FDA requirements a “floor” and “ceiling,” they establish actual requirements, no room to
raise bar

Winterbottom v. Wright: Defect in Δ’s coach, π hurt. ♦ No privity between parties = no remedy. OLD RULE
MacPherson v. Buick Motor Co.: π hurt by defective wheel of Buick car. ♦ π owed duty of reasonable care by Δ who was responsible
for foreseeable danger that could have been prevented by reasonable care.
- If nature of thing is such that negligence could have made it reasonably certain to harm, Δ owes duty.
- No longer a need for a contractual relationship for liability in product liability cases
Escola v. Coca Cola Bottling Co. of Fresno: π stocking Coke when bottle exploded in hand.
- Traynor’s dissent: Movement to a standard of strict liability, “res ipsa loquitur” in product liability cases
o Even w/o negligence manufacturers should be responsible for their products
o Inference of negligence can be dispelled by an affirmative showing of proper care because the
injured π is not in a position to prove negligence.
o Food stuffs already had strict liability, customer has no ability to investigate products
Hennigsen v. Bloomfield Motors: Won warranty claim but not on tort theory, implied warranties run even in absence of privity and w/
exclusivity terms.
Greenman v. Yuba Power Products: Tort side moving towards strict liability too. π wins in spite of not fulfilling “reasonable time”
Speller v. Sears, Roebuck & Co.: Fire in π’s home, experts disagree on cause. ♦ Jury to determine whether or not fridge defect caused
the fire, π can win with circumstantial evidence in certain circumstances.
Barker v. Lull Engineering: Design defect case, high-lift loader case.
Halliday v. Sturn, Ruger, & Co.: π’s son accidently shot himself with his father’s gun. π claimed gun defective and unreasonably
dangerous, calling for a “risk-utility” analysis not a “consumer expectation” test. ♦ Court stated no cause of action existed, the court
will use “consumer expectation” analysis.
Liriano v. Hobart Corporation: Guy gets hand cut off. ♦ Substantial modification does not cancel duty to warn, does cancel out the
design defect claim.

Witt’s Final Torts Exam page 18 of 21

Compensatory Damages

Compensatory damages try to make the π whole in one lump sum payment.

Recoverable Damages
- Lost wages (present and future)
- Medical care costs
- Pain + Suffering (very inclusive, non-pecuinary)
o Injuries, loss of happiness, pleasure w/others
o Limited by statutes in many places, juries often unaware of the caps

- Collateral source rule: Doesn’t matter in torts (if you have insurance paying health costs you
can still recover for full medical costs)
- In settlements there are matrices (insurance, lawyers) that set damage payouts.
- Tort claims are not taxed?

Pecuniary damages:
- Pecuniary damages (lost wages, medical costs) reproduce inequalities in society
- P+S damages won’t always make up for inequalities, discrimination, b/c it depends on
charisma of π.
- Chamallas “The critique of torts from race and gender”
o Tort law privileges pecuniary damages, those for physical harm over pain and suffering
o Tort system insures all of the rich more, reproducing market inequalities
o Non-market quality of pain and suffering may be a way to modestly correct tort system.

Pain and suffering damages:

- Cheaper to kill than injure? (McDougald: Comatose patient gets no P+S b/c of no

Per diem Rule [780]: Calculate damages one second or minute at a time, then multiply over all time left to
suffer – gets juries to award bigger damages (but is prohibited in some courts)

Why $ for compensation?

- No other choice
- Dollars kind of special in world
- Common metric among value systems

Sullivan v. Old Colony Street Railway: ♦ Purpose of damages is to give money equivalent to the actual loss caused by another’s
Zibbell v. Southern Pacific: Acknowledgment that money can’t truly make π whole, but it’s the best option.
O’Shea v. Riverway Towing Co: Question about accounting for inflation. Either discount and calculate future value or don’t in either
Feldman v. Allegheny Airlines: Woman died in plane crash. ♦ Damages limited by 8 years because court assumed she would want to
raise children.
McDougald v. Garber: π was comatose after birth gone wrong. ♦ Not conscious of pain and suffering, can’t recover for loss of
Punitive Damages

Factors to be considered (BMW)

1) Degree of reprehensibility of conduct
2) What is relationship of punitive award to compensatory award? (Factors)
3) Comparable criminal fines or civil penalties (civil penalties are more helpful here)
a. Is there a gross difference between the jury penalty and statutory penalty?

- Common law doctrine, state tort law often limits and caps excessive awards
- BMW v. Gore first where SC struck down punitive damages as unconstitutional (500 – 1 ratio)
- State Farm: 3rd party liability case, can’t base punishment on Δ’s dissimilar conduct than in
o Punitive damages can only be based on single act in case, can’t punish for other acts!
The fact that the Δ harmed other people not relevant to damages.
- “Multiplier theory” provides reasoning of deterrence in case where we still want the activity to
o 1 π representing tacitly the harm done by negligence.
- Wealth not a factor if you want (BMW): marginal utility of a dollar less to a rich than poor
person, there is no rule that a π MUST introduce evidence of a Δ’s wealth (optional)

- Compensatory damages do not always compensate fully, high punitive damages can make up
for objectively calculated compensatory damages if the activity in question has no social
value (no fear of over-deterrence)
- Punitive damages are necessary in some cases to make sure tortuous conduct is not under-
- Make sure that people channel transactions through the market when costs of voluntary
transactions are law
- Express community’s abhorrence of the act
- Relieve pressures on the criminal justice system

Kemezy v. Peters: Police beating case. 10k compensatory, 20k punitive. ♦ Court rejects rule that would require π to establish evidence
of a Δ’s wealth, this should solely be optional up to the π.
State Farm Mutual Auto Insurance v. Campbell: Application of BMW guideposts. ♦ Remanded for more calculation.
Exxon Shipping Co. v. Baker: Ship ran aground in Alaska, captain was drunk. 2.1 billion spent in clean up, 1 billion in civil claims.
Court awarded 5 billion punitive damages, lowered to 2.5 billion by 9th Circuit. ♦ Supreme Court reduced award to 500 million,
punitive damages in vicarious liability cases okay, but his was unconstitutionally excessive.

o Punitive Damages
• Deter those who are not deterred by the threat of liability or paying compensatory damages in order to alter the
cost-benefit calculations due to
• Difficulty in proving causation
• Willingness to pay to harm P
• Insufficient attention/negligence
• Balance Deterrence against Due Process considering: (BMW/State Farm)
• Degree of reprehensibility of act
• Disparity or proportion between harm/potential harm and damages awarded
• Difference between this calculation and civil penalties
• Philip Morris

Witt’s Final Torts Exam page 20 of 21

• Exxon (
• Federal common law case, not binding on states
• Blanket 1:1 ratio as outer limit of damages