Tort Outline APALSA

Torts Outline - Fall 2011 - Stone
I.
Tort
A.
B.
C.
D.
Acts
Wrongfully (breach)
Causes
==> then P is entitled to compensation
Injury
E. 3 different ways of acting wrongfully

1. Intentional wrongdoing
2. Negligence
3. Strict liability
II. Nuisance: people are entitled to make reasonable use of their property. Invasions of Ps
property that fall short of trespass but still interfere in the use and enjoyment of land.
A. 2 steps: (1) Nuisance or no nuisance? (2) Remedy or injunction (2
possible remedies)?
1. Indifference point = price that P would accept in order to forgo the
injunction
B. Hypersensitivity is not reasonable
1. Rodgers v. Elliot (1888): Bell ringing case. P says everybody has right to
make reasonable use of property. D says P is overly sensitive (fairness
argument). D says that letting P recover is bad precedent b/c it hinders
industrial efforts (industrial enterprise argument).
C. Materially changing light/air for another party does not constitution an actionable
nuisance.
1. Fountainbleau Hotel v. 45-25 (1959): Casting shadow over pool case.
P says construction was w/ malice and ill intent, interferes w/ light and air
on breach injuring him. Not sufficient evidence for P maliciously casting
shadow. Rule: landowners do not have a legal right to light and air. Eden
Rocs right not violated b/c allowing building to develop supports industrial
development (PP1 argument), and otherwise would control would everyone
else would do (Fairness argument).
2. Amphitheaters v. Portland Meadows (1948): Horse racing illuminated
w/ flood lights invaded light into theater. P sued for business loss
damages. D says P is hypersensitive. D says
D. Odor/dust is more tangible and constitutes an actionable nuisance.
1. Appleby v. Erie Tobacco (1910): Odor and dust from tobacco company
case. P says odor and dust are a nuisance to him, he is a ordinary person.
D says they are doing best to prevent injury. Ct says it is a nuisance and
injunction can be granted.
E. Doesnt matter how long youve been there. Everyone is allowed right to
reasonable use.
1. Sturges v. Bridgman (1879): Consulting room built and was noisy by
confectioner next door. Confectioner had been there before consulting
room was built. Injunction granted, confectioner loses.
a. Alternate economic analysis: Whether continued use of machinery
adds more to confectioners income than it subtracts from doctor.
F. What remedy?
1. Coase Theorem: Traditional nuisance law says 1 party is active and 1
party is passive. Coase makes that irrelevant by replacing this w/
1 PP= public policy

reciprocal harm. Avoid the serious harm (maximize social value, lesser
financial damages)
2. Posner: Resource use is the same no matter which party is assigned legal
right. Efficiency is promoted by assigning the legal right to the party who
would buy it.
3. Spur v. Del Webb: There was an injunction on D to stop nuisance, but it
was conditioned on P compensating D to leave. Fairness= b/c Ds feedlot
was there prior to the development of Ps housing community.
4. Spur v. Superior Ct: Residents sued Spur for damages, so Spur claimed
that Webb should indemnify them for these damages since Webb were the
ones that built the property.
III. Public + private nuisance
A. Public nuisance is an unreasonable interference w/ a right common to the
general public. Circumstances include when there is significant interference w/
health, safety, peace, comfort, convenience R of T 821(b)
1. State of Rhode Island v. Lead Industries (2008): Lead poisoning
case. Ct held that the presence of lead paint does not constitute a public
nuisance b/c Ds lack of control when children were affected by lead +
and lead in home is not a common resource.
2. Requirements to constitute public nuisance:
a. D must have control over nuisance
b. Must be right of the public (common resource)
B. Private nuisance is a substantial and unreasonable interference w/ the use and
enjoyment of property which is offensive to an ordinary person in the community
R of T 822
1. To determine if reasonable, the restatement measures in terms of
gravity of harm and utility to D (Takes into account efficiency and fairness
according to yuu)
a. Gravity of harm 827
i. Extent, character of harm
ii. Social value that law attaches to type of use/enjoyment
invaded
iii. Suitability of particular use or enjoyment invaded to
character of locality
iv. Burden on person harmed of avoiding harm
b. Utility of conduct 828
i. Social value that law attached to primary purpose of
conduct
ii. Suitability of conduct to character of locality
iii. Impracticability of preventing/avoiding invasion
IV. Trespass: One is subject to liability to another for trespass, irrespective of whether he
thereby causes harm to any legally protected interest of the other, if he intentionally (a)
enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or (c) fails to remove from the land a thing which he is under a
duty to remove.
A. Elements of trespass
1. Entry
2. Unauthorized
3. Voluntary (D intended to enter property, does not necessarily mean did not
intend to make unauthorized entry)
B. Difference b/t trespass and nuisance can be a thin line. Cts can blur that line.
1. Martin v. Reynolds (1959): Flouride compound case. Bad decision. P
says fluoridic compounds from Ds aluminum reduction plant that poisoned

cattle on his farmland constitutes trespass. D says only tangible invasions
can be trespass, and thats a good argument. But P won anyway.
a. Wilson v. Interlake Steel goes against this case.
2. Different jurisdictions have different values.
V. Summary of nuisance
A. When P has a right to undisturbed property and D has a right to the nuisance,
resolve w/ public policy
1. Hay v. Cohoes (1849): D has right to dig a canal and P has right to
undisturbed possession of property. Its better that 1 man should surrender
a particular use of land than another should be deprived of beneficial use
of property altogether. D must yield to P.
VI. Negligence vs. Strict Liability
A. Strict liability should be limited to certain cases
1. Hammontree v. Jenner (1971): Epileptic seizure case. D had epileptic
seizure while driving and crashed and hit P. D was on meds and no warning
that he was about to have a seizure. Rejects strict liability here.
Negligence preferred to determine liability for drivers w/ medical
conditions.
a. Goal of accident law is to minimize cost of accidents. By
enforcing strict liability here, it wouldnt contribute to this goal at
all.
B. Traynors movement for SL will reduce hazards to life and health if we fix
responsibility on manufacturers
1. Escola v. Coca-Cola (1944): Bottle bursting case. If we applied SL here,
manufacturer will have an incentive prevent accidents from taking place.
Manufacturers are in a better position to take risk-reducing precautions.
a. Spreading loss: Manufacturer can raise their prices and make up
for those costs
b. Administrative costs: Less trial and makes whole system
cheaper.
VII. Litigation process and VICARIOUS LIABILITY
A. RESPONDEAT SUPERIOR makes employers vicariously liable for torts committed
by employees while acting w/in scope of her employment
1. Christensen v. Swenson (1994): Motorcycle crash when going to get
food during work break. Employer held vicariously liable b/c her
negligence was in the scope of her employment.
a. Scope of employment:
i. Duties assigned by employer (food breaks benefit employer
b/c employees must eat)
ii. Accident occurred w/ in spatial and temporal boundaries
iii. Employee must be partially motivated by employers
interests
i. EXCEPTION: Intentional misconduct is outside the
scope of employment unless the employer had
reason to suspect employees behavior
b. Negligence of an employee never removes liability from employer.
Even when employee is disciplined.
B. Outside scope of employmentIf D is an independent contractor (non-agent),
employers are under doctrine of APPARENT AUTHORITY, and cant deny authority
of an agent when they have the appearance of authority

1. Roessler v. Novak (2003): P sued docs hospital, but doc was an
independent contractor. Ct held that hospital was liable under vicarious
liability since they are apparent agent.
a. Doctrine of apparent agency: a principle should be estopped to
deny authority of an agent w/ the principal permitted an
appearance of authority in the agent, and in doing so, justified a 3rd
partys reliance on that appearance of authority
i. Principle did something to appear authority of agent
ii. P relied on this representation
iii. P was injured
b. Agency: employee is acting on behalf of employer
c. Non-agency: employers should be liable for employee b/c it will be
good PP. Employer has deep pockets + better loss spreader
C. Restatements view on vicarious liability created OUTSIDE the scope of
employment
1. R 429: Says its about the big picture and what a reasonable person
would have believed.
2. R 416, 427: Someone who hires someone to perform especially risky is
liable for work. Its the owners duty to recognize the potential risks of
work and take precautions against them.
VIII.
Negligence principle
A. Move from trespass to fault
1. Holmesthere is something arbitrary about trespass method b/c it cuts off
the causal history at random. Fault is more equalizing to the parties
2. Posnerbrings about efficient cost/benefit side of accident. Some are
worth preventing, some are not.
B. Rejecting writ of trespass. Liability spectrum: No liabilityFault
principlePresumption ruletrial ctstrict/trespass Absolute liability.
1. Brown v. Kendall (1850): Dog fight, D was hitting dog w/ stick trying to
separate them and accidently hit P in eye. P suffered severe injury. Ct
rejected trespass rule (where direct injury would have been enough). Ds
presumption rule: There should be a presumption of negligence when
there is direct contact and D only need to show he took ordinary care. Trial
ct decided: D is liable unless D can show he used extraordinary care so
that the accident was inevitable.
a. P cannot recover if:
i. D was using ordinary care and P was not
ii. They were both not using ordinary care
b. Ordinary care= kind and degree of care, which prudent and
cautious men would use. D is negligent when he does not use OC
and P does use OC
D
OC
OC
OC
No OC
No OC
OC
No OC
No OC
IX. Standard of Reasonable Care

A. Reasonable care is decided case-by-case. This next one is a classic.
1. Adams v. Bullock (1919): Boy was swinging wire, hit trolley wire, got
electrocuted. Cardozo held that trolley company did not breach duty of
reasonable care. Cardozo did not say it wasnt foreseeable, but said it
wasnt foreseeable AT THAT POINT were it occurred. Its not enough that at
some point along the way somewhere along the wire that someone
couldve gotten hurt b/c that would be extraordinarily burdensome to have
guards at every single point. Its too extraordinary to ask the D for this.
2. Greene v. Sibley: Mechanic on knees and P tripped over him. Due care
only requires ordinary anticipation of risks. Its normal for ppl to look where
they are walking w/out being warned by others
3. 2 interpretations of DUE CARE:
a. Cost/burden of taking precaution = Adams
b. Principle of social ordinariness = Greene
B. (1) Hand formula= B<PL
B= Burden of precautions
P= Probability that accident will occur
PL = Benefits of accidents
avoidance
L= Loss of accident occurring
1. US v. Carroll Towing (1947): Barge owner was negligent for not having
a bargee on board during daylight hours.
a. Posner notes difficulty in quantifying cost of prevention etc.
b. Formula is appellate focused, not trial (judges think in these terms,
not jury)
c. At trial level, formula allows for admissible evidence for cost of
negligence to be explained to jury
d. Formula creates a sensible norm. You need safety, but not safety at
all costs!
C. (2) Foreseeable danger approach: high foreseeability, low cost to fix.
1. Chicago BQR v. Krayenbuhl (1902): Turntable case. High foreseeability
of danger and low cost to lock it.
D. (3) Community expectations approach
X. Reasonable Person Standard and its OBJECTIVITY
A. Being stupid is not a defense
1. Vaughn v. Menlove (1837): D was warned many times the risk of hay
lighting on fire and ignored them. He claimed he didnt know better. Hes
just stupid. Its difficult for a jury to imagine in shoes of a stupid person,
while they can imagine in shoes of blind person, child.
B. Should use objective reasonable person standard
1. Bethel v. NYC Transit: Overruled heightened standard for care for
common carriers. Wheelchair accessible seat collapsed on P in Ds bus. P
couldnt prove that D actually knew it was defective but D tried to repair it
a few days before. Common carriers should exercise reasonable care.
a. R says reasonable person is capable of making mistakes to a
normal standard
b. R 289: If you have superior attributes, you should exercise those
superior attribute that you may havehigher than ordinary
standard of care. But inferior attributes do not less standard of
ordinary care.
C. Emergency circumstances are taken into account and can negate negligence
1. Cordas v. Peerless (1941): Robber goes into cab, takes pistol and point
at drivers head. Driver jumps out of car and cab injures P. A reasonable
person under these circumstances would have done this probably.
D. Physical capacity (like blindness) is taken into account and can negate negligence

1. Roberts v. State of Louisiana (1981): Blind person failed to use cane
and bumped into P. Standard = what a reasonable blind man would do in
this situation. It is not uncommon for a blind person to use other
techniques (w/out a cane) to move around in bus place. We change the
baseline b/c of capacityit cannot be legally demanded of you.
E. Age of child is taken into account, they are held accountable to child of same age
and intelligence.
1. Robinson v. Lindsay (1979): 13 yr old driving a snowmobile, got into an
accident. Ct held that operating a powerful motorized vehicle is an adult
activity and so child should be held to standard of care and conduct of an
adult.
a. Adult activity exceptionChildren are held to same standard as
adults when performing inherently dangerous activity
b. All jurisdictions have a diff language of this general rule +
exception
F. Temporal insanity may only be taken into account if there is no forewarning.
1. Breunig v. American Family Insurance Company (1970): Left up to
jury to decide. Jury said that D had foreknowledge of her susceptibility to
mental aberration, delusion, hallucination. So negligent.
2. Buckley v. Smith Transport: In this case Ds sudden insanity excused
him from liability. Must have absence of forewarning though!
XI. Roles of Judges and jury
A. If theres a clear standard, then no jury needed
1. Baltimore RR v. Goodman (1927): Ps husband was run over in his
truck by a train. Ct held as a matter of law that if driver is unsure that train
is coming, driver must stop, look, and listen. Holmes thinks that when
juries decisions tend to go back and forth, judges should step in and make
it clear. Holmes thinks that juries deciding diff things makes reasonable
care morphous and its a big problem.
B. But if judge decided, it can be confusing for future
1. Pokora v. Wabash rR (1934): P gets run over at train crossing. Train
didnt sound, city was populated. Cardozo held that negligence should be
decided in a jury trial and that P gets the right to prove his case at trial.
Negligence should be a q of fact!
a. Effect of Pokora was negligence cases administered by jury case
by case.
C. Pokora way of thinking continues. If duty of care is a question of fact, then need a
jury to decide
1. Andrews v. United Airlines (1994): Briefcase fell from overhead
compartment and hit P. Nobody knows who caused it to fall. Jury should
look @ whether airline took all foreseeable precautions of reasonable care.
XII. Role of Custom: Custom is not dispositive (conclusive). Its just some evidence to support
negligence. P would have made out a jury case when a custom was not complied with.
Has to do w/ social ordinariness
No relation------------*some evidence---------|-----conclusive evidence
Presumption of negligence
A. When proof of customary practice is coupled w/ evidence that it has been ignored
and this departure was a prox cause of the accident, jury may establish liability
1. Trimarco v. Klein (1982): Shower shattering case. Shower door was built
w/ regular glass. Nowadays, showers are built w/ tempered glass. Ds

failure to use safety glass was against custom and could be evidence of D
not using reasonable care, but its not conclusive.
a. Reasonableness test: Jury must be satisfied w/ customs
reasobleness
b. *Important: Non-conformity (like plastic instead of glass) may not
necessarily give rise to inference of negligence unless Ds act was
more dangerous than customary ways. Sub-conformity is like glass.
c. Not about what D knows, its a q of whether custom is widespread
enough that a reasonable person would know about it
B. Even if they are following custom, jury can still say that they were unreasonable
1. TJ Hooper v. Northern Barge: D lost cargo for boat in store b/c they did
not have a 2 way radio so nobody could warn them about storm. D claims
they were in compliance w/ custom by not having 2 way radio. Ct held that
it is permissible for jury to find that D failed to take reasonable care even if
they were in compliance of custom
C. YOU ONLY GET THE BENEFIT OF CUSTOM IF THERES A FIT B/T THE CUSTOM AND
WHAT ACTUALLY HAPPENED!
XIII.
Roles of statutes and NEGLIGENCE PER SE

A. In order to satisfy negligence per se, must:
1. Prove that the violation of the statute was the cause-in-fact
2. Prove that the statute was implemented for purpose to prevent
this harm
No relation------------------*some evidence--------*presumption--------------**conclusive
evidence
B. CONCLUSIVE EVIDENCE: Most common formula is to hold an unexcused violation
of relevant statute as neg per se. Jury would be instructed that if they find D
violated the statute, they must find him negligent. 2 R of T 288A allows
acceptable excuses: incapacity, lack of knowledge of need to comply, inability to
comply, emergency, compliance poses greater risk than violation.
C. PRESUMPTION OF NEGLIGENCE: Violator is still free, however, to rebut the
presumption of negligence by showing that the reasonable person would have
acted as he did. Burden of proof is on P.
D. SOME EVIDENCE: Treat violation of statutory standard of care as evidence of
negligence. Proof of unexcused violation would support a finding of negligence by
the jury, but they would still be free to find that D was not negligent, even if no
excuse were offered.
E. When statute does not protect against specific injury that P experience, it is not
conclusive evidence supporting negligence
1. White v. Lavarn (1918): P and D hunting on Sunday. Sunday hunting is
unlawful by statute. D not allowed to say that p was contributorily neg b/c
P was hunting on Sunday b/c that statute wasnt made for Ps injuries.
F. If P violates a statute, he can be contributorily negligent
1. Martin v. Herzog (1920): D failed to stay in center of road and P failed
to have lights in buggy after dark. Both parties violating statutes. Statute
requiring lights was here for the purpose of protecting drivers, this is the
right fit says Cardozo.
a. D wants presumption of negligence, but Cardozo thinks it should be
some evidence and its up to the jury
G. But wont make P contributorily negligent of violating statute if it frustrates the
purpose of the statute

1. Telda v. Ellman (1939): P was walking on wrong side of street, violating
a statute, and D hit w/ car. Ct distinguished this from Martin b/c making P
contributorily negligent would have frustrated the purpose of the statute,
which was to keep pedestrians safe.
H. If purpose of statute is not related to damages, then no support for negligence
1. Gorris v. Scott (1874): Sheep overboard case. Statute requires sheep to
be shackled for purpose of preventing disease. D failed to shackle sheep
and sheep washed overboard. Violation of this statute did not make D
negligent b/c that wasnt the purpose of the statute.
a. Brown v Shyne: Licensing statutes are made o protect public from
actions performed by unskilled ppl, not to prevent safety hazards.
XIV.
Proving negligenceFocusing on Ps burden of proof that Ds conduct fell below
standard of reasonable care. P must have evidence that D had CONSTRUCTIVE
NOTICE by showing that D had a sufficient time to remedy the situation
A. If P can show that D had constructive notice, but failed to do anything about it,
prima facie negligence case.
1. Negri v. Stop and Shop (1985): P slipped and fell in aisle w/ baby food
on floor. P argued that P had constructive notice that there was baby food
on floor and that D ought to have noticed as a reasonable person, but took
no action. P has burden to prove that D has constructive notice. It is a
matter for jury to decide.
a. Evidence provided P w/ a prima facie case.
b. Baby food evidence is consistent w/ Ps non-negligence. If it wasnt
consistent, then D would get summary judgment.
B. When P is unable to create a nexus b/t Ds conduct (wax paper) and injury (fall),
therefore failing to show that D had constructive notice, then no prima facie case
for negligence.
1. Gordon v. American Museum of National History (1986): Wax paper
case. P slipped on wax paper, but was unable to show that D had
constructive notice of wax paper being there. No evidence that paper was
there for a long time. It was still clean.
XV. Proving negligenceRES IPSA LOQUITOR: The accident wouldnt have occurred w/out
negligence. The facts speak for themselves. Creates a presumption of negligence in
favor of P.
A. Burden shifts to D to prove that he was not negligent
1. Byrne v. Boadle: Paradigm res ipsa case. Barrel of flour fell out of Ds
shop window and hit P. Barrels do not fall out of show window unless
someone has failed to take reasonable care. D was in exclusive control of
barrel. Burden is on D to prove that he is not negligent.
B. Res ipsa can also apply to cases that mostly can occur w/ negligent
1. McDougald v. Perry (1998): D driving truck and spare tire fell off and
crashed into Ps windshield. Ct held that res ipsa instructions were
appropriate against driver. Truck was older and it was expected that driver
should have inspected every chain before driving. The tire falling off was
negligence on its face.
a. The ct here distinguishes b/t cases that occur w/out Ds negligence
(manufacturers fault) and cases that mostly can occur w/ Ds
negligence (old car)
b. P would have a weaker case for res ipsa if it had occurred a few
months after P bought truck
c. 3rd R of TFact finder may infer that D is negligent if they cant
show that Ps harm is a type of accident that ordinarily happens as
a result of negligence

i.
C. There
1.
D. When
1.
Changed from does not ordinarily occur w/out negligence

to ordinarily would occur w/ negligence (better for D)
d. Procedural effect:
i. NYInference rule: 3rd R. Jury may infer negligence unless
proved otherwise
ii. CaliPresumption rule: If D provides no evidence rebutting
presumption, P wins as a matter of law. If D represents
evidence, then P bears the burden of persuasion and must
persuade the jury, while D bears the burden of production.
can be res ipsa even when there are multiple possible Ds
Ybarra v. Spangard (1944): P unconscious during surgery. Afterwards
woke up w/ shoulder injury even though she was getting an
appendectomy. There were 5 docs and 2 nurses, P sued them all b/c didnt
know whos negligence it was, but knows that someone was negligent. Ct
allows res ipsa to apply b/c Ds are in a better position to know than P.
*Problem is that when there are multiple Ds, it is more probable than not
that each specific D was not negligent. Problem w/ exclusive control
requirement, but ct treats Ds as a unity.
a. 3 requirements of res ipsa:
i. The accident must be the kind which ORDINARILY DOES NOT
OCCUR in the absence of someones negligence
ii. It must be caused by an agency or instrumentality w/in
EXCLUSIVE CONTROL of D
iii. It must not have been due to any voluntary action or
CONTRIBUTION BY P.
clearly no exclusive control by multiple Ds, cannot apply res ipsa
Samson v. Riesing (1974): Turkey salad case. Not sure if it was the
manufacturer of turkey or one of the preparers that was negligent. Res
ipsa does not apply. Ybarra was wrong.
XVI.
Medical Malpractice: Industry and Professional StandardsDID D ACT IN
CONFORMITY W/ COMON PRACTICE OF PROFESSION? P has to explain what common
practice is by bringing in expert witnesses. A great deal of appellate case law has to do
w/ expert witnesses.
A. Expert witness permitted through same/similar locality rule instead of strict
locality rule
1. Sheeley v. Memorial hospital (1998): P giving birth and there was
complication. Ct rejects strict locality rule and permits P to bring in expert
witness that did not practice in same medical field. Strict location rule risks
old boys network and the conspiracy of silence b/c nobody wants to
testify against friend.
a. Same or similar locality rule: Allows for experts from similarly
situated communities to testify concerning appropriate standard of
care.
b. Strict locality rule: Requires that expert testifying be from the
same community as D.
B. Allowed to bring in expert witnesses to support ORDINARILY DOES NOT OCCUR
requirement of res ipsa, but there are downsides.
1. Sides v. St Anthonys medical center (2008): After surgery, P got an
e.coli infection. P was unconscious during surgery and D was in exclusive
control. Ct held when P is unable to show which specific act of negligence
caused his injury, but is able to show D had control + D has more
knowledge of what happened, then medical expert may testify that such
injury usually does not occur.

a. Argument against this: They will only be able to testify on
STATISTICS and jury is forced to make a conclusive inference
based on these stats alone
b. Argument for this: Expert brings jury into a higher common
knowledge
C. Informed consent required: For consent to be informed, the patient must know
not only alternatives that the physician recommends, but of medically reasonable
alternatives that the physican does not recommend
1. Matthies v. Mastromonaco (1999): Old lady w/ broken hip. Doc did not
tell her about alternative surgery b/c he thought w/ her osteoporosis it
would be too risky, and prescribed bed rest. Now shes inept and unable to
live by herself. Doc is negligent in not informing patient of alternatives.
a. 2 main issues:
i. What is scope of required disclosure?
i. REASONABLE PATIENT STANDARDWhat would a
reasonable prudent patient want to be told
ii. PROFESSIONAL STANDARDDoc decides what they
think patient would want to know since they know
best treatment.
iii. DOCS DEFENSE: A reasonable patient/P would have
chosen the procedure even if they knew alternatives.
The adverse consequence would be greater in not
doing the procedure.
ii. Must prove the nondisclosure made a difference.
i. Cant really predict whether she wouldve walked
afterwards, but just ahs to prove it made a difference
ii. Would a REASONABLE PERSON have chosen this
standard?
iii. Would THIS PERSON have chosen this standard? (too
subjective)
b. This issue is solved by informed consent forms
XVII.
Limits of General Duty Duty of Reasonable Care

A. It is always a purely legal question it is not up to the jury to decide the judge
decides usually on a motion to dismiss it can become a appellate issue following
this. Duty must be established before you establish a breach
B. Freedom of K. No duty to docs to help everyone.
1. Hurley v. Eddingfield (1901): Doc is only one to help and doesnt help.
Defeats the purpose of freedom of K (this is the fundamental reason, not
an efficiency reason)
C. Hitting trespasser w/ car no duty to rescue
1. Turbeville v. Mobile Light (1930): P was run over by trolley and Ds
didnt assist P or rescue P from situation. P was trespasser. D did not owe P
a duty b/c did not create the situation and it was not in their scope of
employment.
D. Hitting trespasser might have moral duty, but no legal duty
1. Union Pacific Railway Co. v. Cappier (1903): Freight car run over boy
and his arms flung off. D waited too long before calling for assistance and
boy died. No duty. Duty doesnt extend when its their own negligent
conduct that is the cause of injury.
a. Economic standpoint= profit forgone and loss inflicted on another
are same
b. Legal standpoint= they are different!
E. An omission of fixing a danger made can be a misfeasance (unfulfilled duty owed)
10

1. Newton v. Ellis (1855): D dug hole in street but didnt put warning sign.
P crashed carriage into hole and suffered injury. Misfeasance b/c digging
the hole and not putting notice is 1 act.
F. An omission too far along can be a nonfeasance
1. Miller & Brown v. City of Vancouver (1966): Tree trimming case. City
charter said that they are liable in negligence only for acts of misfeasance
and not for nuisance or negligence resulting in nonfeasance. Failure to trim
is nonfeasance. 2 separate acts of planting a tree and trimming tree.
G. An omission of preventing an obvious danger can be a misfeasance
1. Montgomery v. National Convoy & Trucking Co (1937): Warning
lights and hill case. Truck didnt put on warning lights and so P couldnt
stop car in time. D owed a duty to put on warning lights b/c danger was so
self evidence (hilly/icy weather) that a jruy could have concluded that
omission to warn amounted not only to negligence but also willfulness.
H. Difference b/t nonfeasance and misfeasance:
1. Nonfeasance = not causing harm
2. Misfeasance =failing to confer benefit
3. Did D play a part in making this risk?
4. But for Ds action would P have been in danger?
I. When common law nonfeasance, can look @ special relationships to establish
duty
1. Harper v. Herman (1993): Boat guest diving into shallow water case.
Boat owner and guest do not have a special relationship was b/c they
didnt know each other and so no duty. Usually dangerous conditions
imposes a special duty, but fire and water are ordinary dangers that one
may reasonable be expected to full understand and appreciate by any
child (R of T 339)
a. Exceptions to no duty to rescue role
i. Helpless infants
ii. Special relationships
iii. Undertakings
iv. Non-negligent injury
v. Non-negligent creation of risk
vi. Statutes
J. Special relationship and voluntary assistance can create duty
1. Farwell v. Keaton: Gang beats up P and his friend picked him up and
drove around in a car with him then left him in the car. P died 3 days later
from epidural hematoma. Ps chances of survival would have been 85-88%
if D had brought doctor w/ in 30 minutes. D had a duty to rescue b/c of
special relationship and b/c he voluntarily came to assistance.
Misfeasance.
a. What if strangers? Then duty exists only if they started to help.
b. What if relationships, but no helping? No duty. Special relationship
mostly limited to situations in dangerous situations (like mountain
climbing). Dissent offers this more limited view of special
relationship.
XVIII.
Public policy limitations

A. A misfeasance can still have no duty if it contradicts public policy
1. Strauss v. Belle Realty Co. (1985): Con Edison provided electricity to
apartment. During a black out P had no water and so went to basement to
get water and fell and was injured. D has no duty b/c liability for injuries in
buildings common area should, as a matter of public policy, be limited by
contractual relationship. D may be liable for negligence only when it
breaches a duty owed to P. Misfeasance b/c D contributed to risk. If P had
11

fallen in own residence he would have recovered but he was injured in
basement. Dissent says focus should be on how Con Ed should spread loss
(increase their rate and decrease return on stock holders).
XIX.
Statutory duties
A. When statute says schools should test but that when charged w/ duty are not
liable, then no duty
1. Uhr v. East Greenbush Central School District (1999): Statute
requires schools to test annually for scoliosis. School did not test and child
had to have surgery on scoliosis discovered at late stage. Common law
nonfeasance (failing to confer a benefit). Creation of private right of action
would be inconsistent w/ L scheme so no private right of action. Parents
cannot sue.
a. Because if the statute protected against misfeasance (incorrectly
carrying out the test) then obviously it was intended to protect
against the lesser charge of nonfeasance (not conducting the test
at all)
b. Not negligent per se: b/c not about proving reach of reasonable
care, but about whether there is a duty owed.
c. Test for whether statute allows a private right of action:
i. (1) Whether P is one of the class for particular benefit the
statute was enacted for
ii. (2) Whether recognition of such a right would be consistent
w/ L scheme
iii. (3) Whether creation of such right would be consistent w/ L
scheme.
XX. Duty to take precautions against wrongful acts of others

A. Special therapist and patient relationship makes a duty
1. Tarasoff v. Regents of University of California (1976): Patient
psychiatrist special relationship (authority relationship) established duty.
Murderer confided in psychiatrist that he intended to kill P. Psychiatrist
failed to warn Tatiana and others around her. He killed P. Parallel to
paradigm nonfeasance.
a. Factors to consider when assessing duty
i. Foreseeability of harm
ii. Degree of certainty of Ps injury
iii. Closeness of connection b/t Ds conduct and injury suffered
iv. Moral blame attached to Ds conduct
v. Policy of preventing future harm
vi. Extent of burden to D and consequences to community of
imposing a duty of care
b. Doc & patient confidentiality
i. Doc should not disclose information unless such disclosure is
necessary to avert danger to others (Thats what American
Medical Association says)
ii. Public policy privilege ends when public peril begins
c. Dissent: psychiatric predictions of violence are unreliable and
confidentiality is crucial.
B. Social hosts dont have a duty to stop minors from drinking
1. Reynolds v. Hicks (1998): Ds underaged nephew drank at their
wedding. Afterwards, drove drunk and crashed into Ps car. Statute makes
it unlawful for any person (except parent) to give or otherwise supply
liquor to any person under 21, but that statute was made for commercial
12

hosts. The real crux is the distinction b/t social hosts and commercial
hosts.
a. Inherent diff b/c social hosts and commercial vendors
i. Social hosts arent capable of handling responsibilities of
monitoring guests alcohol consumption. Unrealistic social
implication to control kids at your wedding.
ii. Commercial hosts have a profit motive (should be expected
to exercise greater supervision) + have better financial
ability to control patrons
b. Most states L have reinstated complete immunity or very strong
protpection for social hosts
C. You breach a duty when you negligently entrust
1. Vince v. Wilson (1989): D knowingly gave grandnephew money to buy a
car even though he was an incompetent driver (failed drivers test several
times, no license, drugs and alcohol). This constituted negligent
entrustment. Negligent entrustment arises out of the combining
negligence of both ppl (neg of one entrusting the car to an incompetent
driver + the other on its operation). D argued that neg ent rule should be
limited to where D is owner or had the right to control instrumentality
entrusted, but ct disagrees.
a. R of T 390: one who directly or through a 3rd person a chattle for
use of another whom the supplier knows or has reason to know to
be likely b/c of his youth, inexperience, or otherwise, to use it in a
manner involving unreasonable risk of physical harm to himself and
other whom the supplier should expect to share or be endangered
by its use, is subject to liability for physical harm resulting to them.
Rule applies to sellers, lessors, donors, lendors
b. Car rental companies dont owe a duty to investigate driving record
of sober customer for a drunk driving past (Osborn v. Hertz)
c. Person who leaves key in ignition had a duty to 3rd party b/c a
foreseeable risk of harm was posed by leaving keys in ignition
(Palma v. US Industrial Fasteners)
d. If gun and ammo seller sells guns to a clearly drunk person, who
then goes off and shoots his ex gf, he is not entitled to assume that
it will be used carefully. Under doctrine of negligent entrustment,
the risk of harm posed by a drunken gun purchaser to 3rd parties
was foreseeable as was great. (Kitchen v. K-mart)
XXI.
Duty of care owed by LANDOWNERS to ENTRANTS onto land

A. Social guest is a licensee (traditional view) and owe a duty to warn.
1. Carter v. Kinney (1995): Social guests are licensees. D hosted a bible
study and P attended. D didnt know ice had formed over night and didnt
shovel it. P slipped on it and broke leg. They had no relationship beyond
church. D did not issue an invitation to the public + received no $$ benefit.
P is a licenseeso no duty to shovel ice b/c didnt know about it.
a. Premises liability is a q of law:
i. TRESPASSER: all entrants are trespasser until possessor of
land gives them permission to enter. D owes a trespasser no
duty of care (exceptions for traps and children). Active
negligencedoesnt mean that once trespasser is
discovered that its open hunting season.
ii. LICENSEES (social guests): only a duty to make precise safe
of dangers that possessor is actually aware
iii. INVITEES (visitor): duty to protect against dangers that
possessor knows about or should have reasonable known
13

i. STOP + SHOP CASE (this is how the duty was
established)
b. R of T 332 Entrant becomes an invitee when the possessor
invites w/ the expectation of a material benefit from the visit or
extends an invitation to the public generally
c. Absent the sort of invitation from possessor that lifts a licensee to
an invitee status, the visitor remains a licensee as a matter of law.
d. Some jurisdictions have abolished these categories
B. Modern view abolishes invitee/licensee distinction.
1. Heins v. Webster County (1996): Case that abolished invitee/licensee
distinction. Visiting daughter and while exiting hospital slipped on ice. P
would have been denied recovery of anything under the traditional law b/c
he was a licensee not invitee. Instead of entrants status, the foreseeability
of the injury should be the controlling factor in determining liability.
Standard of reasonable care should be for all lawful visitors.
a. Dispute over Ps purpose of visitshould ct hold he is a public
invitee?
b. 2 options:
i. Continue to use classification (which allows judges to decide
which cases are allowed)
ii. Adopt California rule of duty (like Nebraska here)
C. Elements of duty (Traditional)
1. Right (legally protected interest)
2. Ps claim must assert a legally protected interest for there to be a duty
3. Ds conduct creates the risk
a. A foreseeable risk
4. Foreseeable
a. The conduct needs to create a foreseeable risk
D. There are different tests to see if there was a duty. *Q of LAW: Was creation of
risk foreseeable?
1. Posecai v. Walwart Stores (1999): P was robbed in parking lot at
gunpoint and was wearing most expensive jewelry. She lost $19,000 and
suffered loss of sleep and mental anguish. Ct applied balancing test.
Foreseeability against them not sufficient compared to burden of imposing
a duty to protect against criminal of a 3rd person. Walmart owed no duty.
a. *Test: Participation to creation of a risk vs participation to creation
of a foreseeable risk. => thats why they see this as a misfeasance!
b. SPECIFIC HARM RULE
i. Landowner does not owe a duty to protect patrons from
violent acts of 3rd parties unless he is aware of specific,
imminent harm about to befall them.
ii. For this case, there wouldve been no duty to protect against
crime unless threat was made in course of robbery in
progress. That would be necessary and sufficient to trigger
D to take reasonable care
c. PRIOR INCIDIENT TEST
i. Foreseeability of previous crimes on premise: nature, extent,
recency, frequency, similarity to crime in question
d. TOTALITY OF CIRCUMSTANCES (prior incident + more)
i. Most common test
ii. Gives most duty to storeowners
iii. Takes into account nature, condition, and location of land
iv. Foreseeability of crime, level of crime in surrounding areas
14

e. (Prior incident and totality test = misfeasance for foreseeability.
Theyre operating a business, which is legal, but they are not taking
a reasonable duty of care on invitee standard, which is based on
foreseeability)
f. BALANCING TEST (totality of circumstances + more)
i. Need to balance costs of deterring harm (economic impacts
on D) w/ foreseeability of danger (prior incidents).
ii. Takes totality test and balances it w/ how costly it would be
iii. Nothing left for jury to decide
E. R o T says that foreseeability is only 1 of many factors, and is a *Q of fact
1. A.W. v. Lancaster County School District (2010): Boy molested in
bathroom by stranger that teachers failed to stop from entering. School
didnt dispute that it would owe a duty to protect boy against any
reasonably foreseeable acts of violence on premise. So Q was, was it
foreseeable + who should decide. Maybe not foreseeable that this event
would happen, but whether it was reasonably foreseeable AFTER seeing a
stranger, his contact w/ students would be foreseeable is a matter of fact.
Should be determined by jury.
a. Followed 3rd R: B/c of extent of foreseeable risk depends on the
specific facts of the case, cts should leave such determination to
the trier of fact unless no reasonable person could differ on the
matter.
b. (Nonfeasance) but custodial relationship.
XXII.
Duties of PUBLIC actors

A. General rule= no tort duty to provide police protection
1. Riss v. City of NY (1968): Ex bf threatened to kill P on multiple
occasions. She sought police protection twice and was denied. Ex bf threw
Lye in her face and she was blinded in eye. Ct doesnt make
non/misfeasance argument. Instead ct says they should not second guess
resource allocation. Police have a duty to the publicno one person can
demand protection due to limited resources
a. But ct can impose a duty on police: Schuster v. City of NY: P
provided info to police leading to capture of criminal. P was
threatened, denied police protection, killed. Police had a legal duty
to respond reasonably to Ps request for protection.
b. Direct contact + reliance exception: Cuffy v. City of NY: P sought
police protection from neighbor. After neighbor physically attacked
P, police assured that something would be done. Police didnt do
anything and Ps injured. No duty. CUFFY FACTORS create a special
relationship, an exception to general rule (all 4):
i. (1) An assumption by municipality through promises or
action, of an affirmative duty to act on behalf of party who
was injured
ii. (2) Knowledge on part of municipalitys agents could lead to
harm
iii. (3) Some form of direct contact b/t the municipalitys agents
and the injured party
iv. (4) That partys justifiable reliance on municipalitys
undertaking
B. Duty to public at large is not the same as duty to particular P.
1. Lauer v. City of NY (2000): Medical examiner failed to change report
from something implying murder to something that implied natural death.
Examiner had a duty to public at large (b/c statutory duty to correct death
15
XXIII.
XXIV.
certificate), but that does not give a right to P. Does not qualify as Cuffy
exception b/c doesnt pass #1 and #3. Misfeasance b/c they participation
of creation of risk of emotional distress.
a. Stronger case for duty than Riss
i. No allocation of resources
ii. No discretion for medical examiner
C. Duty is created when city discovers danger. Duty is breached when city fails to fix
danger.
1. Friedman v. State of NY (1986): Department of transportation did
study 5 years before and found that median barrier should be constructed.
DOT failed to fix road. State only liable for car accidents after that study.
a. Under qualified immunity, a planning agency should NOT be
liable for its planning decision if:
i. There is a reasonable basis for its plan (dont need
correctness)
ii. There is good execution
D. Federal Torts Claims Act holds discretionary functions against govt immune
from suit
1. Cope v. Scott (1995): P got into car accident and sued city for (1) failing
to maintain road (2) failing to place appropriate warning signs. Road
construction falls under FTCAs discretionary function, but warnings signs
do not fall under discretionary function b/c not political, economic, social
or fraught w/ PP. P was allowed to continue suit for warning signs.
a. FTCA 2680(Doesnt apply if theres a statute) Only
immune if discretionary. Only discretionary if:
i. Political, social or economic AND
ii. Fraught w/ public policy
iii. NOT EXEMPT IF DISCRETION IS MINIMAL
b. Planning decisions = policy oriented cant sue
c. Implementation/Operational decision = non discretionary can
sue
d. 2 steps: 1) Is there a statute that prescribes the duty? 2) If no
statute, is it so fraught w/ policy considerations that it can be
deemed a discretionary function?
Causation
A. But-for causation: But-for Ds lack of reasonable care, P would not have been
injured
Proof of causation
A. If there are multiple causes, the just need reasonable certainty to support 1 of
the causes
1. Stubbs v. City of Rochester (1919): Well contaminated and P got
typhoid fever. There are many causes for Typhoid fever. But ct says that P
does not need to eliminate every other alternative just needs to prove to a
reasonable certainty that there was a causal relationship b/t negligence
and injury.
a. *Not a policy/planning decision b/c city already committed to
maintaining these water supplies
b. Proportional liability= Ps only get to recover by probability if 20
wouldve gotten anyway
c. Anticipated future harm= Where D creates a risk of future harm
or where D decreased Ps chance of escaping some future even
that hasnt materialized yet
d. 3 different approaches for PROBABILISTIC RECOVERY:
i. Disease rule (PA): Sue P now and you can recover for
emotional harm and worry P will have to go through. No
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recovery for enhanced risk. P is allowed to sue again when
future harm develops. Asbestos.
ii. Risk rule (NJ): P recovers only if theres a reasonable medical
probability over 50%. Must show more likely than not
iii. Risk rule: P recovers for probability of disease developing
and theres not threshold that has to be reached.
e. Arguments FOR prob recovery:
i. When disease develops D might not exist
ii. Evidence might be stale if you wait so harder to prove
causation
iii. Could compensate for emotional distress of waiting for a
disease to occur
f. Arguments AGAINST prob recovery:
i. Compensation will be awarded to ppl who never fully
develop the disease
ii. Those who try to recover later wont be able to b/c of
depletion of funds
iii. Allowing it bases damages on mere creation of risk w/out
any causal relationship
iv. Person might use the funds for things other than helping
disease
2. Smith v. Rapid transport: P didnt know which bus caused her to crash,
so she just sued a bus. Still need reasonable certainty, cant use
mathematical chances of D being the one who crashed based on car color.
B. When we have a clearly negligent D, and an injury w/in scope, P should not have
burden of causation and let wrongdoer disprove. WHAT REALLY MATTERS IS
WRONGDOING. Expert testimony is needed to support causal connection (there is
an exception)
1. Zuchowicz v. United States (1998): Doctors gave P max dosage and
she got PPH and she died. Ct allowed expert testimony. Expert testimony is
admissible to establish causal link. Ct allowed expert testimony here to
show substantial factor.
a. Daubert factors dont need be applied when deciding whether to
admit expert testimony. This case didnt pass these factors, yet the
ct still allowed expert testimony.
b. GENERAL RULE is that expert testimony is needed to support
causal connection
c. EXCEPTION: Lay testimony suffices, only if cause and effect are so
immediate, direct, and natural to common experience as to
obviate any need for expert medical opinion.
i. Wolf v. Kaufmann: Common experience shows that dimly
lit staircase greatly increases chances that resident will
accidently fall and suffer injury. P doesnt need to disprove
she wasnt pushed/jumped
XXV.
Loss of chance
A. P must show to a reasonable degree of medical probability that docs negligence
caused a dimunition in the chance of recovery.
1. Alberts v. Schultz (1999): Leg amputation case. First doc didnt order
test and failed to refer him to specialist. Specialist didnt perform surgery
until 1 day later. P didnt show to a reasonable degree of medical
probability that the docs negligence cause a dimunition in the chance of
recovery.
B. Loss of 37.5% of chance to survive constitutes a substantial opportunity of
avoiding physical harm. Loss of chance relaxes the rule of causation b/c normal
17

rules require P to prove that injury was more likely than not to have been caused
by Ds negligence.
1. Falcon v. Memorial Hospital: P died after giving birth. Due to Ds failure
to hook up IV, P lost 37.5% chance of survival. Even if your odds of survival
are less than 50% you can still recover for loss of chance. P should recover
37.5% of damages for wrongful death.
a. *Dissent important b/c overruled: Dissent believes majority
have usurped foundation of tort law and are allowing P to recover
based on vague statistical probabilities rather than facts. Also this
loss of chance standards puts an undue burden on docs and will
increase medical costs for defensive medicine.
C. All-or-nothing recovery becomes proportional damages approach: loss of
chance damages are measures as the PERCENTAGE PROBABILITY by which Ds
tortious conduct diminished the likelihood of achieving some more favorable
outcome.
1. Matsuyama v. Birnbaum (2008): Doc negligent failed to diagnose
cancer. Loss of chance is not a new theory of causation, but a new theory
of injury. So thats why you can calculate damages by percentage
probability
a. Whether P proved that b/c of Ds negligence decedent lost 37%
chance of survival = certain proof of loss of chance
b. Whether P proved to a 37% probability that decedent died due to
Ds negligence = uncertain proof of death
c. Calculation of how much physician is liable:
i. 1st calculate total amount of damages allowable under the
wrongful death statute, or for injury if P didnt die. This is
the amount that decedent would be entitled if the case were
not a loss of chance case (full compensation for decedents
death or injury)
ii. Calculate patients chance of survival right before med mal
iii. Calculate chance of survival that patient had as a result of
med mal
iv. (amount from 3) minus (amount in 2)
v. Multiply (amount in 1) by (percentage in 4)
XXVI. Joint and Several liability
A. Burden shift to D when there are multiple negligent Ds.
1. Summers v. Tice (1948): Hunting, boths Ds shot at same time and hit P
in eye. Both Ds were negligent. Negligence of both Ds was the legal cause
of injury. P cannot prove that its more probable than not that D1/D2
injured him. D has burden to prove who shot P.
a. This case is UNIVERSALLY accepted to be correct.
b. Policy argument: We know that there is 100% chance of
injustice if burden of proof is left on P, but if burden shift to
D, chances o injustice go down to 50%.
c. W/ 3 Ds, probability of D not committing tort increases above them
committing the tort, so shifting the burden would be more
disputable. (Compare to Ybarra)
XXVII. Limits of But-For test
A. But-for test can be over-inclusive (drop cig and forest catches on fire. But for
oxygen no fire)
1. Berry v. Sugar Notch: Speeding car and tree hit him. P said D should
have removed tree. Chances of tree falling on your do not go up when
youre speeding.
a. Have a tree fall of you b/c youre in a specific spot and a specific
time is NOT what makes speeding unreasonable
18

b. Not neg per se (statute not made to prevent tree falling on you)
B. But-for test can be under-inclusive by giving a false negative and letting neg Ds
go free!
1. Fire case
a. In case of independent, but sufficient causes, the question should
be whether Ds neg was a substantial factor in bring about Ps
injury not whether it was a but-for cause 3rd R
i. 1 is negligent and 1 is innocent
ii. Both are negligent
XXVIII. Market share liability in contrast to burden shifting
A. When P cant identify which D specifically caused harm, but all Ds are potential
tortfeasors, then market-share
1. Sindell v. Abbott Lab: DES case. Ps mom took DES to prevent
miscarriage, but developed tumor as result of moms DES intake. P was
unable to identify the manufacturer of the precise product. Ct allowed P to
hold all liableDs will pay damages proportional to their market share.
a. Market share liability
i. P has to join substantial # of manufacturers
ii. Ds may or may not be allowed to exculpate themselves (it is
allowed here, but not in Hymowitz)
B. Defense removed. D not allowed to show that they could not have manufactured
the ingested DES
1. Hymowitz v. Eli Lilly (372): Used national market to establish market
liability. NY no longer recognizes a defense based on lack of causation.
C. Local market
1. Conley: If P purchased from a particular pharmacy then pharmacy
becomes the market. It exculpates all Ds that manufactured DES that
wasnt in the pharmacy.
XXIX. Proximate cause: A single act continues altering the world forever through but-for
cause. So the idea of prox cause is that there must be some limit to the scope of liability
to make sense.
XXX. Proximate cause: UNEXPECTED HARM
A. Eggshell/thin-skull plaintiff rule should be included in the jury instructions
1. Benn v. Thomas (1994): D negligently hit Ps car and P died of heart
attack 6 days later. Ps history of coronary disease and diabetes gave him
predisposition to heart attack. P wanted thin skull. D wanted substantial
factor causation since causal aspect uncertain. Jury should be instructed
of eggshell/thin-skull P rule.
a. Thin skull/ Egg shell rule:
i. Negligent D must take victim as he finds him.
ii. The one who has been tortiously injured is entitled to be
made whole
iii. Amount of damages do not have to be foreseeable in order
to be recoverable (foreseeability sets an outer bound to
whether a D is liable, but doesnt set an outer bound to the
measure of damages a P may receive once a D has been
found to have wronged the P)
B. Thin skull cases are complicated by possible cause issues
1. Steinhauser v. Hertz (1970): After a minor car accident, P has a
schizophrenic outbreak. Even though there were other varieties of events
that occurred shortly before that could have given predisposition to
schizophrenia. Thin skull instruction + D gets opportunity to diminish
damages by showing P would have gotten schizophrenia anyway.
19

C. When 2nd party causes more harm, whether or not the 1st party is liable is not thin
skull, but a causation question. To determine if in scope of risk: Was 2nd danger a
risk in itself? Independent?
1. *Pridham v. Cash & Carry Building (1976): Ambulance driver heart
attack crashing afterwards case. Stone said wrongly decided. Ct held
original D liable for Ps death.
a. Stone says wrongly decided unless the ambulances heart attack
was somehow related to the accident.
i. [STRONGEST CASE] If ambulance was speeding to get P
immediate medical care and got a heart attack, its more w/
in the scope of risk.
ii. [WEAKER] If ambulance was not speeding and got heart
attack, then less for sure in scope of risk.
iii. [WEAKEST CASE] If injured P has appointment to have injury
checked by doctor next week and P gets in cab. Cab driver
gets into accident. Accident is out of scope of risk b/c D did
create he risk of taxi accident. That risk existed independent
of the original accident. Getting into a cab is an ordinary
risk.
2. *Wagner v. Mittendorf (1922): Ct held D liable for further injuries that
are Ps own fault, like falling on crutches.
a. [WEAKER] If P was on crutches and died in a fire 10 years later b/c
he couldnt escape. P probably couldnt recover damages. P cant
be responsible for every injury for the rest of Ps life. Dangers of fire
is unique.
D. Chain of causation must be limited to scope of risk by looking at directness +
foreseeability
1. Polemis (1921): Plank dropped + ship blows up. D is liable if his conduct
is direct cause of Ps injury. Neg workman dropped board into hold of Ps
ship, causing spark and igniting petrol vapors, destroying ship. Explosion
was deemed unforeseeable but ct held that D was liable since neg acts of
its employee was a direct cause of harm. Foreseeability plays a role in
whether there has been a breach of duty, but once there has, liability
extends to all reasonable consequences.
a. VIEW #1: Look @ whether P suffered some foreseeable injury to
see if he suffered a tort. THEN answer what damages D is liable for
by applying test of directness (arbitrary).
2. Wagon Mound: (1961) Opposed Polemis, care that event was
unforeseeable. D is liable for probably consequences of his act, not
unforeseeable ones. There is no wrongful doing w/out wrongful suffering.
a. VIEW #2: Foreseeability determines not only liability for tort, but
also the scope of liability (like circle). Stone says this seems to be
closer as to test of notions of scope of risk
b. Ds will want to cite Wagon Mound, and say they fall under
unforeseeable risk of harm.
XXXI. Proximate cause: UNEXPECTED MANNER
A. When there is superseding cause, if Ds conduct is not a substantial factor and
not in scope of risk then proximate cause is NOT established.
1. Doe v. Manheimer (1989): Rape and overgrown bushes. P was raped on
Ds property, which had overgrown bushes, in bad area, creating a place
for assault where no one would see. Held that bushes was not a
substantial factor in Ps injuries, the rape was. Held that bushes was not
same type of harm that made Ds conduct negligent in first place. P failed
to establish proximate cause.
20

a. P 411: To prevail on a negligence claim, P must establish
that Ds conduct legally caused the injuries
i. 1st COMPONENT OF LEGAL CAUSE= causation in fact
i. Would the injury have occurred were it not for the
actors conduct? (this cases passes this test)
ii. 2nd COMPONENT OF LEGAL CAUSE = proximate cause
i. An actual cause that is a substantial factor in the
resulting harm
ii. Expansive view of causation in fact by pragmatic
shaping of rules what are feasible + yield a workable
degree of certainty
iii. Remote or trivial actual causes are generally rejected
iv. In determining the point where relevant chain of
causation (signifying actual causation) is a matter of
fair judgment and a rough sense of justice
v. Substantial factor test: Whether the harm which
occurred was of the same general nature as the
foreseeable risk created by Ds negligence
vi. Scope of risk analysis: Applies where the risk of
harm created by Ds negligence allegedly extends to
an intervening criminal act by a 3rd party
It is in scope only if it is reasonable
foreseeable to a person of ordinary caution (a
person of ordinary caution would not except
untrimmed bushes to result in rape)
A person of ordinary caution would take into
account past experiences (but here there
were none)
Is it in scope only if the harm actually suffered
was of the same general type as that which
makes Ds conduct negligent in the first
instance (so D would be liable if P had fallen
on shrubbery)
vii. 2nd R of T 422B: A negligent D, whose conduct
creates or increases that harm, is not relieved from
liability by the intervention of another person, except
where the harm is intentionally caused by the 3rd
person and is not w/in the scope of risk created by
Ds conduct.
Why these exceptions? B/c in those
circumstances, the 3rd person has deliberately
assumed control of the situation
[GUN HYPO1] D leaves loaded gun out in a
house where there are kids. Neighbor comes
over and drops gun on kids foot, causing
injury: R says that this drop like a paper
weight (rather than actual danger of gun) is
NOT a superseding cause. Stone disagrees
and says gun left out attracts attention and
not everyone is skilled to handle it
[GUN HYPO2] Neighbor picked up loaded gun
and contact w/ gun makes it go off and shoot
someone. R says that a gun shooting is w/in
the scope of risk of leaving a gun out.
21

b. 3rd R of T changes and says that foreseeability should not be used
as a duty limitation and the only role for foreseeability is breach
analysis for jury to decide. This R rejects use of substantial factor.
A lot of confusion these days.
c. Hines v. Garrett (1921): Train conductor went past girls stop and
made her walk home through bad area. Raped. Different from Doe
b/c here there is an interaction b/t P + D, and bad area is common
knowledge, while in Doe only expert would think of bushy area as
increased rape.
d. What is it that needs to be foreseeable?
i. Hines v. Morrow (1921) the peg leg case.
ii. If you look @ detailed facts => unforeseeable
iii. If you look @ general facts => foreesable
iv. Lawyers that choose these extremes are just taking
advantage of this technicality.
XXXII. Proximate cause: UNEXPECTED VICTIM
A. Cardozo says that there must first be a relation b/t Ds wrong and Ps injury.
1. Palsgraf v. LIRR (1928): Guard pushes passenger helping him get on
train, package that passenger was holding fell and exploded. Package was
fireworks. Explosion caused scales off ground to shoot off, injuring P. RR
was negligent but only posed foreseeable risk to passenger and his
package, not to Mrs. Palsgraf. *The true concept of liability is whether D
has done something wrong in relation to P. Prox cause should exclude
liability except where P suffers the very wrong D committed.
a. Andrews dissent: Believes that ct needs to ask whether there
was a natural and continuous sequence b/t cause and effect.
Believes that proximate means that b/c of convenience, of PP, of
a rough sense of justice, the law arbitrarily declines to trace a
series of events beyond a certain point.
XXXIII. Defenses using Ps conduct: CONTRIBUTORY NEGLIGENCEIf P is found to be
contributorily negligent, then the case is dismissed (All or nothing). Burden of proof is on
D to prove that P was negligent. Doesnt involve duty. Nowadays, contributory neg has
been eliminated over the years.
1. When statutes are made to protect X, cant use Xs cont neg as a defense
a. Chainani v. Board of Education (1995): Statute requiring school
bus operators to instruct students to cross streets. Cant use childs
cont neg as a defense.
b. Few statutes have this effect
2. If D is reckless, then he cant use Ps contributory neg as a defense
a. P will be able to recover everything
3. If D has a last clear chance to avoid injury, then P can use that to rebut
his cont neg defense
a. Helpless P: If D knew about Ps helplessness and should have
known, then last clear chance kicks in
b. Oblivious P (not looking while crossing road): Only overcomes
contributory negligence bar if D had actual knowledge
XXXIV. Defenses using Ps conduct: COMPARATIVE NEGLIGENCEA negligent Ps recovery
depends on how serious Ps negligence was compared to Ds. Jury apportions degress of
fault b/t diff parties. No longer all or nothing!
A. [STEP 1] is it several or several and joint?
1. Several means that D just pays their proportion
2. Joint + several means that P gets 100% of the damages and D pays a
proportion of that 100%.
B. [STEP 2] is it pure or modified?
22
C.
D.
E.
F.
G.
1. Pure
a. P who is 99% at fault recovers 1% of the damages from D
2. Non-pure Modified 1 not as great as
a. P only recovers if their fault meets threshold of being not as great
as Ds
b. P doesnt recover anything for 50/50 cases
3. Non-pure Modified 2 no greater than
a. P only recovers if their fault meets threshold of being no greater
than Ds
b. P does recover for 50/50 case
[STEP 3] if modified, ask, does jurisdiction aggregate?
1. Aggregate means that the total liability of all Ds is aggregated together,
and compared to Ps liability. This is relevant for modified ones.
[STEP 4] if D is insolvent, does jurisdiction include P in reallocation (inclusionary)?
1.
Uniform Comparative Fault Act (UCFA) is pure, aggregates, and is jointly and
severally liable
1. So most states dont follow it
Iowa Code Chapter 668 is modified, Ds are jointly and severally liable for 50% or
greater.
Example for non-pure modified
1. P40%
D130%
Damages= $40,000
D210%
D320%
Aggregation: Ds aggregated liability =60% > 40%. So P wins.
Non-aggregation:40%> D1s 30%, D2s 10%, D3s 20%. So P doesnt get
anything.
P30%
D140%
Damages= $40,000
D210%
D320%
Non-aggregation:
Several: D1 is liable for 40%
Joint + several: P is trying to recover 100% from Ds. So Ds owe 70% of
total.
STEP 1) Each D is compared to P to see if liable at all.
Only D1s 40%> Ps 30%.
STEP 2) These remaining parties owe [Ps total damages minus
Ps own]
So D1 owes 70% of the damages
D3 is insolventin scenario where P40%, D130%, D210%, D320%
Several: D1 has to pay 30%, D2 has to pay 10%
Joint + several: D1 and D2 are liable for 60% of total = 24000?
Inclusionary: P will get less than their 60%
100%-D3%= 100%-20%= 80% -- > this will be your
denominator
D1:
D1%/80% x 40000
= 30/80 x 40000
= 15,000
D2:
D2%/80% x 40000
23

= 10/80 x 40000
= 5,000
(So P gets 20,000 total as opposed to her 24,000)
Exclusionary excludes P (most states):P will get 60%

D1 and D2 will split the 24,000
D1% + D2 % = 30% + 10% = 40% -- > denominator
D1:
D1%/ 40% x (Ps total)
= 30/40 x (60% x 40,000)
=18,000
D2:
D2%/40% x (Ps total)
= 10/40 x (24,000)
=6,000
(Double check, P still gets a total of 24,000)
H. Limit to comparative negligence= Ps negligent behavior needs to be related to
Ds negligent behavior in order to be used as a defense
1. Fritts v. McKinne (1996): P needed surgery b/c of an accident from
drunk driving. Ps artery was in an unexpected area during surgery, so he
started bleeding and died. Docs comparative neg defense was that P was
negligent in driving drunk. Ct held Ps conduct was unrelated to his
medical treatment so should not instruct jury on issue of comp neg.
a. Possible defense= Whether there was negligence at all (since
artery was in an unexpected place)
b. Another possible defense causation/damages= Ps life expectancy
was not normal b/c of his drinking. P would argue thin skull. Reduce
damages that P could collect.
XXXV. Defenses using Ps conduct: AVOIDABLE CONSEQUENCESthe clearest example of
avoidable consequences issue is Ps failure to obtain medical attention or to follow
medical advice
A. You dont have to take any substantial risks to avoid Ps negligence.
1. Surgery
a. If P didnt get surgery b/c thought it was too risky, then D cannot
use avoidable consequences as a defense
b. If P didnt get surgery b/c of religious belief, then D can use
avoidable consequence defense
2. Advice
a. If P doesnt take advice about a diet, then D can use avoidable
consequences as a defense
3. Seatbelt
a. Contributory neg doesnt work here (thin skull). But its avoidable
consequence b/c it occurs BEFORE the accident not AFTER the
accident.
b. Jurisdictions have to make up their own rules for P failing to wear
seat belt. No negligence per se b/c not causally relevant and
if it were neg per se then P would be barred from ever
suing. Bad public policy.
24

c. NY and Cali allow D to diminish damages if P failed to wear seat
belt
XXXVI. Defenses: EXPRESS ASSUMPTION OF RISKIs the equivalent of consent for criminal
wrong in that it negates the wrong.
A. Parties are free to contract for whatever terms on which they may agree, but
contracts that violate public policy are unenforceable.
1. Hanks v. Powder Ridge (2005): Snowtubing K case where P signed a
waiver that explicitly said that D was not liable for injuries. Exculpatory
clause waiving liability goes against PP. Ct used Tunkl factors as a guide to
determine that clause violated PP: D was providing snowtubing to the
public, gave unrestricted access to P, care and control in Ds hands, P had
little knowledge/control/experience of whether Ds snowtubing
maintenance was safe, adhesion K leaves no room for bargaining.
a. Tunkls factors as a guiding factor to determine if violates PP:
i. Business is suitable for public regulation
ii. D is performing a service of great important to the public
iii. D has a bargaining advantage against members of public
b/c of necessity of service
iv. The party presents the public a K of adhesion and makes no
provision whereby a purchaser may pay additional
reasonable fees and obtain protection against neg (take it or
leave it K)
v. As a result of transaction, the person or property of the
purchaser is placed uner the control of the seller
b. You can choose to waive your rights for neg but not for gross neg:
i. Policy reasons. Want ppl to sue for gross neg
ii. Recklessness + gross neg cross into things that are crimes
XXXVII.
Defense: IMPLIED ASSUMPTION OF RISKNo express language or agreement
indicating understanding of parties.
A. When hazard was invited and foreseen, dangers were not obscure or unobserved,
and not an inherent danger, then implied assumption of risk. GETTING INTO A
CAR OF DRUNK DRIVER.
1. Murphy v. Steeplechase Amusement (1929): Amusement park ride.
Belt jerked and P fell. P fractured his kneecap. Ride implied an assumption
of risk that would take away liability from D. Not an inherent danger b/c
nobody was injured before and its not serious enough where D has to shut
down the ride.
a. Even thought Cardozo says that it would a different situation if
flopper was so dangerous it would need to be stopped. BUT Stone
said you cant assume risk for strict liability! (???? IS THAT TRUE?)
B. Can be under an explicit K
1. Sometimes under explicit K, there are implicit assumptions of risk (if you
are hired for a play, they say need a running exit and theres a huge drop
on stage left)
C. Diff b/t implied assumption of risk and comp neg:
1. Assumption of risk is a subjective inquiry (not whether a reasonable
person would have knowingly encountered risk, but if this P knowingly
encountered risk)
2. Judge decides whether or not there is a valid defense. Doesnt get sent to
jury.
XXXVIII.
Strict liability for accidental injuriesInvoked for ULTRAHAZARDOUS or
ABNORMALLY DANGEROUS activity. D is liable w/out showing of fault by P.
25

A. Person who for his own purposes brings on his land and collects and keeps
anything there likely to do mischief if it escapes, must keep it in at his peril, and,
if he does not do so, is prima facie answerable for all damages which is the
natural consequence of the escape.
1. Rylands v. Fletcher (1866): Ps property was flooded by water that
broke out of a reservoir constructed on Ds land by Ds orders. This is nonnatural use of land (non-customary compared to social ordinary risks).
a. Non nature = non customary
b. Theres only strict liability when its non-common
c. Burden of proof
i. P does not have to prove that D took unreasonable care
since the activity that D is partaking in is above and beyond
social ordinary risk.
B. Negligence of D doesnt matter
1. Sullivan v. Dunham (1900): Dynamite blasting on Ds land caused wood
to hit P and kill her. Dynamite blasting is lawful but it imposes a socially
extraordinary risk and even if D was using reasonable are, D should still be
SL.
a. Public policy:
i. On grounds of PP, it is better that one man should
surrender a particular use of his land, than that
another be deprived of his property altogether, which
might be consequence if the privilege of the former is
wholly restricted.
b. Strict liability vs res ipsa
i. Res ipsa allows rebuttale of fault
ii. SL does not give D opportunity to offer rebuttle
C. Defenses to SL (madelons outline)
1. Assumption of risk is a complete defense to SL b/c P may be proven to
have fully accepted that risk.
2. Comparative negligence is not a defense b/c strict liability is not about
negligence of D
XXXIX. Abnormally dangerous activities + the restatement
A. 2nd R 519 and 520
1. One who carries on an abnormally dangerous activity is subject to the
liability from harmresulting from the activity, although he has exercised
the utmost care to prevent harm Consider 6 factors when determining if
activity is ABNORMALLY DANGEROUS:
a. Existence of a high degree of risk of some harm to the person, land,
or chattel of others
b. Likelihood that the harm results from it will be great
c. Inability to eliminate the risk be the exercise of reasonable care
d. Extent to which the activity is not a matter of common usage
e. In appropriateness of the activity to the place where it is carried on
and
f. Extent to which its value to the community is outweighed by its
dangerous attributes
2. Gun manufacturersManufacturers should be liable for crime under
519, 520
a. Cali Sup Ct said that 519 + 520 only apply to land based. But why
distinguish lands from guns
b. Some Cali cts reject 2nd R entirely: thinks that it resembles too
much inquiry into fault, and too much inquiry into dangerous. These
cts like PP, but think R get in the way of this.
26

B. Limits to R. Even if chemical is determined to be abnormally dangerous, the issue
at hand must have to do w/ those dangersotherwise no SL.
1. Indian Harbor Belt RR v. American Cyanamid (1990): Shipment of
toxic chemicals. Not abnormally dangerous b/c it was the shipping of the
chemicals not the chemicals themselves that caused the problem.
Susceptible of risk minimization by exercise of due care. Failure of
transporter to exercise due care means that its not appropriate to apply
SL to the manufacturer. This is just regular negligence.
a. What kind of case does need SL? Posner says the greater the
risk of an accident and the costs of an accident if one occurs, the
more we want the actor to consider the possibility of making
accident-reducing activity changes; the stronger, therefore, is the
case for SL b/c (SL gives incentive to experiment w/ methods of
preventing accidents that involve not a greater exertion of care,
but instead relocating, changing, reducing, the activity giving rise
to accident)
XL. Products liabilityjust know that it exists
A. Manufacturer owes a duty to indirect consumer when known danger is present
1. Macphearson v. Buick Motor Co: Gets rid of privity. Manufacturer made
defective wheel causing Ps car to collapse and P to get injured. Evidence
showed the defect would have been discovered by reasonable inspection
and that inspection was omitted.
a. 4 factors to consider for manufacturer duty:
i. Nature of automobile (if its defective its obviously a
danger)
ii. D knew danger
iii. D knew others would use car b/c of size of car
iv. D may argue that they only owe a duty to driver, but NO
B. Res ipsa or strict liability
1. Escola v. Coca Cola Bottling Co. (1944): Bottle burst in hand. P said
burst wouldnt have normally occurred w/out a defect/negligence on Ds
part. D argued bottle was out of exclusive control when injury occurred. Ct
expanded time frame, and held D had control during inspection. Ct held
that P should get res ipsa for her negligence action b/c meets 3 res ipsa
requirements.
a. Strict liability: Traynor (concurrence) thinks that manufacturers
should have strict liability b/c PP demands that responsibility
be fixed wherever it will most effectively reduce the
hazards to life and health inherent in defective products
that reach the market
i. Mass production nowadays gets rid of need to evaluate
based on consumer-seller privity consumers rely on brand
and trade marks + dont feel the need to inspect their
products before use
b. Greenman v. Yuba Power Products: Traynor concludes that a
manufacturer is strictly liable in tort when an article he places on
the market, knowing that it is to be used w/out inspection for
defects, proves to have a defect that causes injury to a human
being But then 2nd R comes along
c. 2nd R 402A
i. Huge difference from Yubas holding
ii. Now P has to show defect was unreasonably dangerous to
user
27

d. 3rd ROne engaged in the business of selling or otherwise
distributing products who sells or distributes a defective product is
subject to liability for harm to persons or property caused by the
defect.
i. What makes it defective?
i. Contains a manufacturing defect (when product
departs from its intended design even though all
possible care was exercised in preparation and
marketing the product)
ii. Is defective in design when foreseeable risks of harm
posed by product could have been reduced or
avoided by adoption of reasonable alternative design
by seller or other distributor, or predecessor in
commercial chain of distribution, and omission of
alternative design, renders product not reasonable
safe
iii. Is defective b/c of inadequate instruction/warning
when foreseeable risks of harm posed by the product
could have been reduced or avoided by the provision
of reasonable instructions or warnings by the seller
or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of
the instructions or warnings renders the products not
reasonably safe
ii. Major theoretical issues
i. How to understand abnormally dangerous
ii. D may have taken reasonable care, but P has a
chance to prove that the product has a defect and all
parts are unreasonably dangerous
XLI.
Intentional harm
A. Battery= the intentional infliction of a harmful or offensive contact w/ person 2nd
R 13. There are 2 kinds of intent in regard to battery: Purpose intent (traditional)
+ Knowledge intent
1. Purpose is very restrictive, so R tries to find spectrum of intent
2. R Elements required for battery
a. Act is intentional
b. Act must cause contact w/ the victim
c. Intended contact must be either harmful or offensive
3. Bodily harm = any physical impairment of condition of persons body,
physical pain, illness
4. Offensive = spitting on someone. If it offends a reasonable sense of
personal dignity
5. Contact = tripping someone w/ a wire. doesnt have to be actually
touching.
B. Defining intentmeans that the actor desires to cause consequences of act or
that he believes that consequences are substantially certain to result from it
1. Garrett v. Dailey: Motive doesnt matter. 5 yr old boy pulled chair out
from under Garratt. Boy didnt mean to break her hip, but ct held boy
liable for battery. In order to have a CoA for battery, P must show that D
was substantially certain that his actions would cause injury.
a. Age is unimportant: The only circumstances where Brians age
is of any consequence is in determining what he knew, and there
his experience, capacity, and understanding are of course material
28

b. The substantial certainty test works where theres knowledge
of victims identity and the manner in which they can get hurt
2. Vosburg v. Putney: Preexisting injury to Ps leg. Ct holds boy liable or
battery.
a. Difference in setting (playground) doesnt negate intent, but
negates some other factors (like offensive contact)
b. Intention: he doesnt even have to intend he would case harm,
just has to intend to cause physical contact
C. Assault= an intentional act that gives rise to a reasonable apprehension of
imminent battery. It is not about contact, just apprehension of it, and it has to be
reasonable apprehension (not fear). Can exist w/ out battery. Contact not
necessary.
1. R Elements required for assault:
a. Act w/ intent
i. Includes person who attempts to batter P but misses is
liable for assault if P is placed in apprehension of that blow
b. To place victim in apprehension of a harmful or offensive contact or
to make contact
c. Victim must reasonably be placed in apprehension of such contact
i. Includes fake gun holder. Assault turns on whether Ds act
would place a reasonable person in apprehension of an
unwanted contact, not whether aggressor is in fact able to
make threatened contact
2. Apprehension = aware of threat (dont have to be scared)
3. Imminent = temporally and spatially relevant (Im going to fly to Florida
and punch you), cant be conditional (if I wasnt wearing the Armani suit
Id punch you)
D. Defenses to assault + battery
1. Consent
2. Self-defense
3. Privilege of necessity
E. Assault and battery doesnt actually require physical contact w/ the person
1. Picard v. Barry Pontiac-Buick (1995): P and D got into a dispute over
car repair so P tried to take a picture of D. D didnt want his photo taken so
tried to grab camera out of hands. P said D lunged at her and spun her
around. D said only touched camera. Ct said even if he just touched
camera, thats enough for assault and battery.
a. Battery can involve extension of person (cane)
b. Punitive damages awarded depends on state standard (In Rhode
Island, they used malice)
F. Apprehension of detention is necessary for false imprisonment
1. Lopez v. Winchells Donut House (1984): Donut shop employers
thought she had stolen money b/c no recording sales. They asked her to
come into the shop and questioned her. She sued for false imprisonment.
D had affirmative defense that they had a probable cause that she was
stealing (in a way admitting that they falsely imprisoned). But ct said no
false imprisonment b/c no apprehension of detention.
G. Intentional infliction of emotional distress requires intention/recklessness,
outrageous and intolerable conduct, causal connection, and severe distress
1. Womack v. Eldridge (1974): D took a picture of P and used that picture
to ask if the molested boys could point how who molested them. D2 in the
molestation trial and P had nothing in common except for both being in ice
29

rink on same day (P had nothing to do w/ molestation). P became
depressed. Yes. D is liable for IIED.
a. 4 requirements for a CoA for emotional distress unaccompanied
by physical injury
i. Wrongdoers conduct was intentional and reckless
ii. Conduct was outrageous and intolerable in that it offends
against generally accepted standards of decency and
morality
iii. There was a causal connection b/t wrongdoers conduct and
the emotional distress
iv. Emotion distress was severe
b. 2 R of Torts 46(1) One who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional distress
to another is subject to liability for such emotional distress, and if
bodily harm to the other results from it, for such bodily harm.
Comment (i) expressly states that this rule also covers a situation
where the actor knows that distress is certain or substantially
certain, to result from his conduct
30

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E. 3 different ways of acting wrongfully

1 PP= public policy

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

IX. Standard of Reasonable Care

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Roles of statutes and NEGLIGENCE PER SE

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Changed from does not ordinarily occur w/out negligence

Torts Outline - Fall 2011 - Stone

Limits of General Duty Duty of Reasonable Care

Torts Outline - Fall 2011 - Stone

Public policy limitations

Torts Outline - Fall 2011 - Stone

XX. Duty to take precautions against wrongful acts of others

Torts Outline - Fall 2011 - Stone

Duty of care owed by LANDOWNERS to ENTRANTS onto land

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Duties of PUBLIC actors

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Exclusionary excludes P (most states):P will get 60%

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

Torts Outline - Fall 2011 - Stone

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