Table of Content

Causation...................................................................11

Intentional Tort................................................................2

Actual Cause..........................................................11

Battery.........................................................................2

Approximate Cause...............................................11

Assault.........................................................................3

Counter to Causation.............................................12

Transferred Intent.........................................................3

Multiple Necessary Causes....................................13

Defense to Battery or Assaut.......................................4

Multiple Sufficient Causes (substantial factor)......13

Tresspass to Land.........................................................5

Toxic Tort................................................................13

Conversion...................................................................6

Preempted Causes.................................................14

Trespass to Chattles.....................................................6

Mutiple Tortfeasors.....................................................15

Nuisance......................................................................6

Alternative Liability................................................15
Act-in-Concert Liability..........................................15

Negligence......................................................................7

Market Share Liability............................................16

Injury............................................................................7

Indivisiable Injury..................................................17

Duty.............................................................................8

Apportionment.......................................................17

Relational Aspect (Palsgarf).....................................8

Premise Liablity.......................................................8

Strict Liability................................................................18

Breach..........................................................................9

Abnormally Dangerous Activities...............................18

Resonable Person ...................................................9

Product Liability..........................................................19

Hand Formula..........................................................9

History of Product Liability and cases.........................20

Negligence per se....................................................9

Res Ipsa Loquitur.....................................................9
Custom..................................................................10
Defense to Breach......................................................10
Contributory Negligence........................................10
Comparative Fault.................................................10
Assumption of Risk................................................10

INTENTIONAL TORTS
I Battery
.1 Battery Elements (prima facie case):
)1 An act,
)2 intended to cause a contact of a type that is
harmful or offensive (objective standard),
)3 which causes such a contact
.2 Consideration and counter:
)1 Contact
.a Objective standard: whether touching violates
prevailing social standards of acceptable
touching; NOT whether P actually takes it as
offensive or harmful; Counter: certain contacts
not normally considered offensive can be rendered
so if D knows that P is usually averse to such
contact (Paul).
.b Eggshell Skull Rule: D is liable to unforeseeable
extent (not type) of injury
.c Physical contact
.d Body or objects physically (for sure) or
emotionally (arguably)connected to body
(Fisher snatching of plate from hands; beloved
CD)
.e Indirect contact via Ds instruments:
dogtrapcigar smokebullet
)2 Intent
.a Majority View Intent to cause contact.
Policy: protect P, otherwise D not considering
the contact to be harmful or offensive could do
whatever he wants and not be held liable for
battery. E.g. man flatters random woman with
unpetitioned-for kisses
.b Goldberg Synthesis Intent to cause contact of
a type objectively deemed harmful or
offensive
Defendant must act with intent to perform a
kind of touching that tends to cause harm or is
widely regarded as offensive
.c Minority View intent to cause contact and
harm/offend (dual intent)
.d Substantially Certain Knowledge- In some Jx,
intent can be established by Ds substantially
certain knowledge that contact will occur; Some
Jx take knowledge as evidence of intent;

subjective standard as to the individual person at

issue. (boy pulling chair: Garratt )
.e specific intent is not required

II Assault
.1 Assault Elements (prima facie case):
)1 An act,
)2 intended to cause the apprehension of an
imminent harmful or offensive contact (objective
standard),
)3 which causes reasonable apprehension of such a
contact.
Paul v Holbrook coworkers massaging of the shoulders
(offensive)
Rule: Offensive is determined on whether a reasonable
person not unduly sensitive to personal indignity would
find it offensive. If the plaintiff is found to be oversensitive,
she may not be able to collect recovery, unless it can be
proved that the defendant knows that she is oversensitive.

Fisher v Carrousel Motor Hotel snatching of plate from

hands; offensive contact with object connected to body
Bernadesky v Erie R. Co. ordered dog to attack P; contact
does not need to be flesh on flesh
Leichtman v WLW Jacor Communications blowing of cigar
smoke in Ps face could be offensive contact
Vosburg v Putney boy kicked another boy in the knee in
classroom, exacerbated injury; intent to make contact so
battery sustained, also eggshell skull rule: liable for all
injuries even if unforeseen or unintended
Cole v Hibberd drunk D playfully kicked P in rear; battery
because only intention to make contact matters, not
whether D acted with intention to cause harm
Wagner v State (Utah) mental patient attacks P; intent to
cause contact is enough, D does not need to appreciate that
act is harmful or offensive, unfortunately government
immunity from intentional torts

Garratt v Dailey boy pulls out chair from aunt; battery

because substantially certain knowledge that aunt would fall

.2 Consideration and counter:

)1 Apprehension
.a = awareness; Do not need to be fear
.b Reasonable apprehension (objective standard)
whether a reasonable person would have such an
apprehension (circumstances, gender, social
status, number of people, size demeanor)
)2 Contact
.a Has to be imminent
.b Objective Standard: whether touching violates
prevailing social standards of acceptable
touching; NOT whether P actually takes it as
offensive or harmful; Counter: certain contacts
not normally considered offensive can be rendered
so if D knows that P is usually averse to such
contact (Paul).
.c Physical contact
.d Body or objects physically (for sure) or
emotionally (arguably)connected to body
(snatching of plate from hands beloved CD)
.e Indirect contact via Ds instruments:
dogtrapcigar smokebullet

III Transferred Intent

.1 Between torts
)1 Intent element of battery satisfied even if Ds intent is
only to cause apprehension of such imminent contact
(Nelson)
)2 Mix and match among other intentional torts

E.g. D intended to lock P in a room (false

imprisonment) and crushed Ps fingers Battery
.2 Between victims
)1 Unintended victims may sue for acts intended to
injure someone else (White)

Beach v Hancock angrily pointed unloaded gun at P;

ignorant as to whether loaded or not then caused
reasonable apprehension

Vetter v Morgan 3 guys shouted and made obscene

gestures to woman in van at night; words together with
circumstances caused reasonable apprehension of
imminent harmful/offensive contact
Western Union Tel. Co. v Hill larger man across counter
caused reasonable apprehension in smaller lady P
Phelps v Bross Budweiser girl sexually assaulted and when
awoke D was sitting in bed with her
Brooker v Silverthorne switchboard operator verbally
abused over phone; no imminent threat so NOT assault;
not a reasonable apprehension

Paul v Holbrook coworkers massaging of the shoulders

(offensive)
Rule: Offensive is determined on whether a reasonable
person not unduly sensitive to personal indignity would
find it offensive. If the plaintiff is found to be oversensitive,
she may not be able to collect recovery, unless it can be
proved that the defendant knows that she is oversensitive.

Nelson v Carroll accidentally shot P even though only

intended to scare P battery

In re White D shot at Tipton but missed and hit P; liable

for battery when unexpectedly hits stranger instead of
intended victim

IV Defense to Battery and Assault

.1 Consent (considerations)
)1 Can be either expressed consent or implied consent
)2 Must be actual consent
.a no presumed consent
.b no paternalistic justification
)3 Subjective standard about the particular
individual. But circumstances, behavior or language
can be used to infer the persons actual intent. (e.g.
immunization doctor)
)4 Scope of consent- what is actually or reasonably
inferred or implied as consented (Koffman: but my
scope of consent is to be tackled only by teammates).
.a Medical consent forms informed consent can
extend scope of consent to other treatment
deemed advisable that may arise in course of
the original operation.
)5 Social norm consent to jostling on crowed bus
)6 Historical dealing 2 man playfully shoved or
punched one another in the past
)7 Comparative fault has no place in intentional tort, but
may be relevant to the proof of affirmative defense.
.2 Counter (no consent):
)1 Beyond the scope of the consent given
.a not arise in course of original operation left ear
vs. right ear
)2 Tortfeasor can't benefit from consent defense if the
consent was obtained through action of fraud or
coercion.
)3 Tortfeasor can't benefit from consent defense if
consent was given under lack of capacity.
Particularly, if,
.a the victim lacks the ability or judgment necessary
to give meaningful consent (there is incapacity),
and
.b a reasonable person in the position of the
tortfeasor would perceive this lack of capacity
(tortfeasor knew about it)
.c counter: no incapacity because a reasonable
person will find other way out, instead of
acquiescing (e.g. having sex with boss in fear of

losing job is not sufficient for establishing

incapacity)
)4 Consent to illegal activities is void against public
policy.
Counter:
2nd Restatement:
Consented conduct constituting a crime is suffice
to establish a consent defense to tort, unless the
conduct in question was rendered criminal by the
legislature in part to protect the consenting
person from his own choice.

.3 Self-Defense or Defense of Others

)1 Must reasonably believe necessary to protect from
imminent harm, offensive touching, or confinement.
)2 When P provokes D D may self-defense unless P
disengages first
)3 Stand Your Ground Lawno duty to retrieve if legal
presence and not using deadly force to selfdefense.
)4 Ds perception of threat must be reasonable under
the circumstance
)5 Ds defense reaction must be proportional to the
perceived threat
)6 Deadly force:
.a Generally only justified when actual and
reasonable belief of imminent death or serious
bodily injury
.b If safe retreat is an option should not use
deadly force
.c Conditional threat: deadly force privileged
UNLESS actually and reasonably believes could
have secured personal safety by handing over
money.
.d Counter: Castle Law some Jxs irrebuttable
presumption of apprehension clause eliminate the
reasonableness consideration)

.4 Defense of Property
)1 has to be reasonable and proportional. Value of
human life and limb outweighs the interest of a
possessor of land in excluding from it those whom he
is not willing to admit hereto.
)2 Recapture of property- must be peaceful

V Trespass to Land
.1 Trespass to land elements (prima facie case)
)1 A voluntary and intentional action
)2 That constitutes occupation or physical invasion of
real property
)3 Where plaintiff enjoys a right to exclude.
.2 Considerations
)1 Strict liability
)2 On, below, and above surface of land (e.g. low-flying
object)
)3 Any minimal invasion will suffice (case of the thorns;
)
)4 Inaction - failure to leave or remove when consent is
withdrawn
)5 No requirement that invasion damages or render less
value of Ps property
.3 Defense to trespass to land (counter)
)1 Necessity
.a Necessary is defense to trespass, applies with
special force in preservation of human life
(property too) (Ploof)
.b Partial counter: private necessity supplies an
incomplete privilege to commit trespass D
is entitled to override land owners right to
exclude, but is still liable for compensatory
damages that result from his exercise of the
privilege (Vincint).
.c Public necessity supplies complete privilege,
whereby a citizen is entitled to use or destroy
anothers property in order to avert a greater harm
to the public without suffering any sanction.
.i
Usually effective by government officials
.ii
May be subject to the 5th amendment to
compensate
)2 Inability to control (dog run; car crash; tripped and
fall)
)3 Consent to entry
.a Can be expressed or implied
.b Scope of consent
Geographically/spatially; temporarily
Purpose (Copland: student recording not
consented)

.c If mistaken belief of permission to enter induced

by possessor of land no trespass liability
.d Consent must be knowing and voluntary
.4 Eligible plaintiffs
Land owners; Person lawfully in possession;
Members of property owners household
.5 Recoverable damages
)1 Injury to person and property caused by trespass
.a Should still observe comparative fault
.b Should still observe but-for and proximate cause
.c Can recover if trespass was by private
necessity (Vincent)
)2 injunction granted for on-going trespass
)3 Reasonable self-help allowed
.a May run into risk of being unreasonable
.b Long-permitted trespass may ban recover
damages caused by the trespass

Ploof v Putnam Ds employee unmoors Ps boat from

dock resulting in injuries and damage during big storm;
necessity is defense to trespass, applies with special
force in preservation of human life.
Vincent v Lake Erie D stayed moored to Ps dock and
damaged it during storm, D argued necessity; liable for
damage to Ps dock for deliberately (but wisely) choosing to
stay
o Pay restitution even though no wrong has been done?
o Contract case as to court filling in missing term after
consent expired?
o Most commonly analyzed as: Private necessity
supplies an incomplete privilege to commit
trespass entitled to override owners right to
exclude but must pay compensatory damages
o Best cost avoider whos in best position to
minimize costs, ship owner decided better to stay at

Ps dock so he should be liable for whatever damages

happen
Ploof could have been resolved by saying Ds action is
disproportionate to Ps trespass by putting lives at
stake

VI Conversion
.1 Conversion Elements
)1 Intentional
)2 exercise of dominion or control over
)3 personal property owned by the plaintiff
)4 that completely or nearly completely deprives
the plaintiff of the propertys usefulness or
economic value.
.2 2nd Restatement
Conversion is an intentional act of dominion or
control over a chattel which so seriously interferes
with the right of another to control it that the actor
may justly be required to pay the other the full
value of the chattel.

VII

Trespass To Chattels

.1 Trespass to Chattel elements

)1 Intentional
)2 interference with the right of
)3 owner of personal property
)4 resulting in actual harm
of a lesser sort than in conversion, e.g., damage or shortterm interference (key someones car; short-term
possession)
Thyroff v. Nationwide D denied P access to his computer
records; extend conversion to cover intangible property

VIII Common to Conversion and Trespass to

Chattels
.1 Re: Intangible Property
)1 Traditional Merger Doctrine intangible property
(such as shares of stock) are merged in tangible stock
certificate. (p. 834 bottom)
)2 Modern Rule: extend conversion to cover
intangible property (Thyroff v. Nationwide D
denied P access to his computer records)
)3 Plaintiff must show interference or harm has been
resulted
.2 Defense to Conversion and Trespass to Chattels
(counter):

)1 reference defense to trespass to land

)2 Reasonable mistake is NO excuse (all that matters
is the intention to act and a harmful result;
malicious intention is not required)
e.g. shot someones dog thinking its a wolf;
mistakenly took someones hat home

IX Nuisance
.1 Interference with the use and enjoyment of ones land
(physical invasion not required)
.2 Must be a continuing, substantial and unreasonable
interference.
.3 Coming to the nuisance- Plaintiff may still prevail
even if Ds nuisance activity was already underway when
P acquired or improved his property.
.4 Other factors considered including both parties interest
.5 Appropriate remedy should promote overall economic
efficiency

- INJURY Jury () Question

I Injuries that count
.1 Physical injury to person or property (tangible for
sure intangible arguable)
.2 Economic loss associated to the physical injury
.3 Non-economic
)1 Pain and suffering flowing from physical injury for sure
)2 Stress unrelated to physical harm arguable (NIEDvery limited; use with care!!)
.4 Eggshell skull rule: A tortfeasor finds his victim as she
is ( Extent not type!!)

II Injury does not count (counter)

.1 Pure economic loss
)1 Policy consideration: disproportional liability may
discourage good activity Kinsman (drifted boat)
(1965) p.325
)2 Exception (Counter):
.a Professional
obligation(Lawyer/auditor/accountant vs. clients
pure economic loss)
.b Other special relationships:
Foreseeability and
Public policy considerations (e.g., how much the
plaintiff stands out from general public)

III Damage Calculation: To put plaintiff back into position as if

accident hadnt happened. (compensatory)

Kinsman (drifted boat) (1965) p.325:

Rule: court declined to award pure economic damage,
arguing the damage was too tenuous and remote.

- DUTY Judge () Question

I Unqualified/Presumptive Duty Situation
.1 Everyone has unqualified duty to conduct oneself with
reasonable care for person and property of others.
.2 Counter (no duty):
)1 foreseeable standard:
.i
Not a foreseeable plaintiff (Mussivand: dirty
doctors)
.ii
Not a foreseeable injury (Palsgarf: firework papers)
The risk reasonably perceived defines the duty to
be obeyed (Palsgarf).
)2 relational aspect:
.i
Not the type of plaintiff (Palsgarf: firework papers):
If no hazard was apparent to the eye of ordinary
vigilance, an act outward seemingly innocent
and harmless with reference to the plaintiff does
not take to itself the quality of a tort because it
happened to be a wrong with reference to
someone else.
One cannot build the plaintiffs right upon the
basis of a wrong to someone else. Plaintiff must
show a wrong to herself.
)3 Default rule nonfeasance; a couch potato

Table
Invitee
Permission +
economic
benefit
Reasonably safe
premise

Licensee
Permission

Trespasser
No permission;
Own purpose

Warning of
unobvious
danger

No willful,
wanton conduct

Modern Rules:
Half of the states have eliminated invitee/licensee
distinction
A few states (e.g., CA) have eliminated the entire
framework

II Qualified Duty Situation

.1 Premise liability Dangerous conditions on real
property
)1 Invitee licensee trespasser
)2 Level of care: Table
)3 Counter: activity (i.e., not condition) on premise
caused accident
.2 Special relationship
)1 common carrier-passenger innkeeper-guest
business-customerschool-student employeremployee landlord-tenantcustodian-ward
)2 Level of care: reasonable care under the
circumstances
.a Extraordinary care: one party in special
relationship holds itself out as competent/expert in
ensuring safety (e.g. Jones common carrier owes
a duty to exercise extraordinary care, what a
reasonable prudent bus driver would do)
.b Tarasoff rule (3rd party): Psychotherapists have a
duty to protect an identifiable potential victim
of a patients violent conduct, where the
psychotherapist has predicted or should have
predicted that the patient presents a serious
danger of violence to that potential victim.
)3 Counter: the relationship ended when accident
happen
.3 Imperilment of another If an actors own conduct
caused the victim to be physically injured and at
imminent risk of further injury, the actor needs to make
reasonable efforts to prevent the victim from suffering
further harm.
.a Counter: social policy let party holder off the hook
for car accident after getting drunk at the party,
expect some state statute holding commercial bar
tenders liable.
.4 Undertaking to help
)1 Once a rescue is voluntarily undertaken, the rescuer
owes a duty to the victim to perform the rescue with
reasonable care.
)2 Contractual promise of less formal undertaking

.a An actor who entered an agreement to ensure

others safety owes a duty to the other (Wicker v.
Harmony Corp.).
.b An actor who voluntarily circulated safety info
owes a duty to update such info when necessary
(Meneely v. S.R. Smith, Inc.).
)3 Good Samaritan rule: Level of care is reasonable
care to avoid gross negligence.
.5 Reporting obligation - School teacher, medical
practitioner has a duty to report suspected child abuse.

BREACH- Jury () Question

( Establish Breach; Affirmative
Defense)
I The Reasonable Person frequently used: how to
frame the question is the key
.1 Default objective standard:
Thoughtful
prudentmoderateordinarycommoneveryday riskaverse but not paranoidasks what care is due to
others appropriate behavior based on social norms.
.2 Adjustment to the default standard (counter):
)1 Young children (state statute or common law)
Tender years doctrine: under 7 not held to any
standard; 7-14 held to the standard of care of
reasonable 8 or 12 year old, unless engaging in an
adult activity.
)2 Physical impairments
A reasonably prudent blind person under the
circumstance
)3 Professionals heightened standard
A reasonably prudent doctor/lawyer under the
circumstance
)4 Rarely adjusted (minority rule at the best)
Mental health the elderly
.3 Reasonableness Considerations (argue points):
)1 Lawfulness of activity
)2 Precautions: availability and cost
)3 Foreseeability: salient () vs. unlikely
eventualities
)4 Notice
)5 Custom (not decisive unless professional situation)
)6 Counter:
.a Ordinary caution does not involve forethought of
extraordinary peril
.b Only extraordinary casualty, not fairly w/ the
area of ordinary prevision, would make it a thing
of danger (Adams)

II Formula with certain facts (concrete numbers and

chance of forethought)
.1 The Hand formula: Difference in B < Difference in P
L

.2 Calabresis rule: Min (Cp + CI + CA)

)1 Should make sure Cp < CI (cost minimization)
)2 Cp- cost of prevention (B)
)3 CI-cost of injury (P L)
)4 CA- cost of administration

III Negligence Per Se (majority rule) if a statute

applies
.1 Rule interpretation (have small n negligence):
3rd Restatement: An actor is negligent if, without
excuse, the actor violates a statute that is designed to
protect against the type of accident the actors
conduct causes, and if the accident victim is within the
class of persons the statute is designed to protect.
.2 Counter (not big N Negligence):
)1 Reasonable excuse
.a Youth or physical incapacity of defendant
.b Emergency: reasonable efforts by defendant to
comply
.c Justified ignorance by defendant as to the
existence of facts rendering the statute
applicable
.d Excessive vagueness or ambiguity in the
statutory standard
.e Compliance posing a greater danger to
defendant or others than non-compliance
reasonable alternative is not sufficient an excuse,
has to be a safer alternative
)2 Not the type of accident
.a Not the type of injury/interest
.b The injury did not happen in the manner
contemplated by statute
)3 Not the class of victim
worker v. visitor
)4 No violation to the statute fact question
.a regulation not recognized as statute for this
purpose
.b statute does not apply to defendant
)5 No injury (injury analysis)
)6 No causation(causation analysis)

)7 Invoke minority rule break of a statute is merely

evidence that supports the plaintiffs argument on
the breach element.

IV Res Ipsa Loquitur rarely can be used

.1 Rule interpretation:
)1 An evidence rule
)2 invoked only where the accident is unlikely to
happen absence negligence of the defendant, and
when no direct evidence available regarding the
cause of injury.
.2 Prima Facie Case (consideration and counter)
)1 The type of event ordinarily does not occur in the
absence of someone else acting carelessly
)2 The instrumentality of the harm must have been (
always been) within the defendants exclusive
control; and
)3 Harm did not result from any conduct of plaintiff
himself.
.3 Policy to invoke Res Ipsa Loquitur force the bad guy out
)1 Res Ipsa Loquitur may be invoked to establish
careless of multiple defendants, when each stands
to benefit from remaining silent Ybarra

V Custom- relevant but not determinative

)1 The TJ Hooper Rule: custom is not determinative of
reasonable care. Custom is only relevant to
carelessness as evidence
)2 Anti-TJ Hopper Rule (counter): professional
negligence
.a Defendant must act in a manner consistent with
the ways in which other qualified members of her
profession act (in medical cases: proof of
compliance reasonable care)
.b Exception to exception- informed consent: must
provide info that a prudent patient would want
to make a medical decision (instead of comply
with custom among docs to decide how much
info should give to patient).

VI Defense to Breach ( )
.1 Contributory negligence (traditional view, some states
still use today):

)1 Any careless on part of P provided complete

defense to big-N negligence.
)2 Counter:
.a Last Clear Chance rule: if D has last opportunity
to prevent accident resulting from careless acts of
both D and P, then D cannot use contributory
negligence as defense.
.b Ps careless act does not play a causal role to Ps
injury
.2 Comparative Responsibility/Fault (modern view)
)1 Modified comparative responsibility (majority
rule)- bar recovery if the plaintiffs fault reaches a
certain threshold
.a Greater than Ds fault (Ps fault 50% can
recover)
.b Equal to Ds fault (Ps fault < 50% can recover;
less common)
)2 Pure comparative responsibility (minority rule) P can
be 99% at fault and still recover 1% of the damage.
)3 Argument point:
Identify all sources of fault indicate it is a jury
question try to take a position re: the percentage
build-up.
)4 Counter: Ps careless act does not play a causal role
to Ps injury
.3 Assumption of (known) Risk
)1 Overall A [1] competent plaintiff who [2] adequately
appreciates the riskiness of a given activity, and who
[3] voluntarily chooses to encounter those risks,
cannot [4] if any of those risks is realized, seek
redress from the defendant on [5] a claim that he
breaches a duty owed to her by exposing her to those
risks.
)2 Implied assumption of risk- Plaintiff knew of a
risk yet proceeded with an activity exposing her to
that risk.
.a Approach 1: assumption of risk is a complete
defense no recovery
.b Approach 2: Is the plaintiffs initial choice of
participating in the activity reasonable?
If yes complete defense

If no comparative fault analysis and

possibly divide
.c Approach (3rd Restatement): abandon
implied assumption of risk completely, and go
for comparative fault analysis directly.
)3 Expressed Assumption of Risk- Plaintiff formally
ceded her right to redress (signed waivers).
Counter: the waiver is void.
a. Procedural unconscionability
.i
Contract of adhesion take it or leave it
.ii
Form contract presentation
.iii
Vulnerable group (class hypo: sell fridge to
the poor):
.iv
Outrageously unfair terms suggest
procedural problem
b. Substantive unconscionability
.v
Outcome: unfairly one-sided on its face
e.g. Exculpatory terms
.vi
Purpose: bad faith such as preventing ppl
from suing
.vii
Public policy: All contracts which have for
their object, directly or indirectly, to exempt
anyone from responsibility for his own fraud,
or willful injury to the person or property of
another, or violation of law, whether willful
or negligent, are against the policy of the
law.
.b The intent of parties is not expressed in clear,
unambiguous terms

- CAUSATION Jury () Question

I Actual Cause
.1 Actual Cause/Cause-in-fact
)1 The But-for Test for a necessary cause. Would the
injury have occurred bur for the defendants careless
conduct?
)2 The Substantial Factor Test for multiple
sufficient causes.
.2 The preponderance standard of proof
(considerations):
)1 more probable than not (chance of causation
>50%)
.a The proof must amount to a reasonable likelihood
of probability rather than a possibility.
.b The hypothesis must be the most probable one
and not equally possible or possible as alternative
hypothesis.
.c The evidence need not negate all other possible
causes, BUT MUST exclude other reasonable
hypotheses with a fair amount of certainty.
)2 Hypothesis should frame a logic sequence of events
that lead to the injury.
)3 Statistic data
.a Jury may combine statistical and circumstantial
evidence to find that defendants carelessness
would have made a difference to the plaintiff
even though the relevant statistics by themselves
would seem to suggest otherwise (Kallenberg v.
Beth Israel Hosp. p. 238 note 3.)
.b Counter:
.i
admitted <50% chance
Overboard Sailor (Hypo) p. 237 note 3.
Rule: A judge ought not to allow a jury to find
a fact if the plaintiff admits that the odds of
its hypothesis on cause-in-fact are 50% or
less.
Holding: No single plaintiff alleging negligent
failure to maintain rescue equipment will
recover under the preponderance standard.
(counter) If can prove one plaintiff is the 1
among 3 overboard sailors (i.e., best
swimmer among the 3, closes location to the
boat, etc), the outcome may be different.

.ii

Increase the risk is not causation (Aldrige

v. Goodyear Tire & Rubber Co. (tire company
toxic soup) (1999) p. 251)

II Approximate Cause
.1 Modern View: Foreseeable Scope of The Risk
(Majority)
)1 Foreseeable harm
.a The harm must be foreseeable to a reasonably
prudent person at the time of the alleged breach.
)2 Scope of harm
.a The injury must be among the type of harm that
the defendant risked by breaching a duty.
.b D could foresee one form of harm was not
sufficient to hold it responsible for causing an
entirely different sort of damage.
)3 General foreseeability
.a The precise manner how the injury occurred or
specificity/severity of the injury does not have to
be foreseeable to find the defendant liable.
.b The foreseeability is not as to the particularities,
but the genus.

.2 Traditional View (minority or abandoned rule)

)1 The Natural and Ordinary Test (Ryan v. New York
Central R.R. Co. p 295 note 2)
.a The court held that is it neither natural nor
ordinary for fire to spread further (one-leap rule
re: fire)
.b Policy consideration (Counter: no casualty):
.i
Court worried about imposing disproportionate
liability quite beyond the offense committed.
.ii
Court wanted to avoid unduly suppressing
useful activity by threat of massive liability
2) The Directness Test (Polemis 1921 p. 296)
.a How directly did the injury result from defendants
carelessness?
.i Not too much separation in time or space
.ii Not too many intervening acts (falling plank set
the fire-direct enough)
.iii Whether or not damage is foreseeable is
irrelevant (this is too harsh on defendant, and
let to modern formulations)

III Counters to Causation

.1 Cut The Causal Chain of Events (possible counters)
)1 Time and spaces
.a Lawyer-ing about the causal connections of facts
to reduce/increase the number of chains
.b Have disturbed waters become placid and normal
again?
.c Is the causal relationship between Ds breach and
Ps injury attenuated or fortuitous?
)2 Who actively contributed to the injury
.a Ps comparative fault?
.b 3rd party actor?
)3 D only furnishing the condition that makes the Ps
injury possible?
)4 D did not actively contribute to the Ps injury except
for putting her at the particular position and time
of the accident?
.2 Preempted Causes for Doomed Plaintiff
.3 Superseding CausesIntervention of a 3rd party
.a Change the nature or type of injurycreates a
new danger too dramatic to be foreseeable (
) intentionally bad enough for the court to cut
the chain and let the prior offend off the hook
completely.
.b (counter)only aggregate the
situationcomparative fault is better; medical
malpractice is not superseding causes (in many
states) a foreseeable intervention
.4 Tortious Aspect: The careless aspect of Ds
conduct is not a but-for cause, although the
conduct itself may be (e.g. boy crawling behind a car,
even checking rear mirror would not find.)

IV Multiple necessary causes

.2 No A or No B No injury
Injury A and B
.3 A breach of an affirmative duty to protect or rescue can
count as one or two or more but-for causes of a victims
injury.

V Substantial Factor Test (Multiple Sufficient

Causes)
.4 2nd restatement of Tort defines two arms for substantial
factor ():
)1 Non-trivial necessary causes (proximate causes)
)2 One of 2 simultaneous sufficient causes (Anderson:
2 fire burn down 1 house)
.5 3rd restatement limits this test to the second use
only.

VI Toxic Tort
.6 Plaintiff usually needs to provide evidence linking a
particular, identifiable chemical to their diseases.
Cannot prove cause for a random drop in a toxic soup.
(see Aldrige )
.7 It is often difficult for individual toxic tort plaintiffs to
establish actual causation (consideration and
counter).
)1 In the absence of a signature disease as a marker,
medical studies often only suggest rather than
establish as more likely than not a general causal
relationship between exposure to a particular
substance and a generic disease
)2 Plaintiff also must prove that her individual disease is
an instance of that general causal linkage, even if
established.
)3 Group disease may provide circumstantial
inferences to get above 50% (e.g., a group getting

rare disease had only in common their exposure to a

particular substance.)

McDonald v. Robinson (2 careless driver crash on a ped.) p. 248

Rule: If the acts of two or more persons concur in
contributing to and causing an accident, and but for such
concurrence the accident would not have happened, the
injured person may sue the actors jointly or severally,
and recover against one or all, according to the proven or
admitted facts of the case.

Restatement (2d) 432

An actors carelessness must be a substantial factor in bring
about an injury in order to be deemed a legal cause of that
injury. Carelessness will be deemed a substantial factor in
bringing about an injury only it constitutes:
(i) a non-trivial necessary condition for the
occurrence of the plaintiffs injury; or
(ii) one of two or more simultaneously operating forces
that is each sufficient to bring about harm to another.

Aldrige v. Goodyear Tire & Rubber Co. (tire company toxic

soup) (1999) p. 251
Rule: If plaintiff fails to provide any evidence linking a
particular, identifiable chemical supplied by
defendant to their diseases, the plaintiff has not proved
that more probable than not defendants chemical
causes of the disease.
Facts:
o Tire work sued Goodyear for negligence because
Goodyear supplied their plant with some chemicals.
o Goodyear supplied 10% of chemicals plaintiffs were
exposed at their plant.
o 3/28 carcinogenic chemicals at the plant was supplied
by Goodyear.
o Goodyears chemicals were not toxic until decompose
in the hot processes of the tire plant.
Unique aspects of case:
o toxic tort

o
o

Expert testimony not admissible if not grounded with

data.
Workers compensation bars negligence action
against their own employer. P 259, note 1.

VII Preempted Causes and Doomed

Plaintiff (Counter; no cause)
Hypo 1: a 1st car ran over a pedestrian and killed him. 5
seconds later, a 2nd car ran over the dead body of the
pedestrian. Suppose both drivers were negligent.
Rule: only the 1st driver is liable, because he passes the
but-for test. The 2nd driver is not liable, because it cant
be said that he caused any injury to the dead body.
Hypo 2: a 1st fire burns a house and is sufficient to burn it down.
2 second fire joined 5 minutes later, and would have also been
sufficient to burn the house down, should the 1 st fire is not
there.
Rule: the 1st fire pass the but-for test at the moment
of the accident. Dont count future event.
Alternatively, some court looks at if the 2nd fire is
produced by a culpable cause (e.g., negligence of a
person setting the fire up) or not (e.g., a natural fire). If
the second fire is natural fire, the negligent person
setting up the 1st fire may only be liable for the value of
the house being intact for 5 more minutes.
Hypo 3: Patient X is dying of an untreatable, incurable disease
that physician Y negligently fails to diagnose.
Rule: no cause of action on these facts.
Dillon v. Twin State Gas & Electric Co (falling boy) p267 note 8.
Rule: If fact-finder found the boy would have probably
died anyway in falling from the bridge, the electricity
company would not be liable for any damages except the
extra pain for dying from electrocution compared to
falling to death.
Fact: A young boy playing on the superstructure of a
bridge lost his balance and was electrocuted when he
sought to steady himself by grabbing a nearby high
voltage wire maintained by the defendant.

- Multiple Tortfeasors
I Alternative Liability:
.1 When two or more persons by their acts are culpable as
the sole cause of a harm or when two or more acts of
the same person are culpable as the sole cause,
burden is shifted to the defendants to prove that the
other person, or his other act, was the sole cause of the
harm.
.2 Act-in-concert is not necessary to a finding for
alternative liability. (In Summers v. Tice no act-in-concert
argument was made)
.3 Defendants will be held jointly and severally liable.
.4 Policy consideration:
)1 Defendants could both escape liability if one escapes.
)2 Unfair to deprive the plaintiff his redress simply
because he cannot prove who caused the damage, or
how much each tortfeasor contributes to it.
)3 The defendants are probably in a better position to
sort it out.
.5 Restatement has extended this doctrine to more than 2
defendant situation. (counter) However, in practice,
court is hesitated to do so (less than 50% of each of the
multiple suspects; not reasonable if not all suspects
are grounded in a suit.)

II Act-in-Concert/Concert of Action Liability

.1 Multiple defendants separate acts of careless fused
into a single coordinated course of conduct that
caused injury to Plaintiff. (Hypo: 2 speeding race cars
hitting a pedestrian)
.2 Does not require the existence of a plan or undertaking
to injure the plaintiff but do require a tacit
agreement (defendants have a tacit understanding
among themselves of their concert of action)
.3 Defendants will be held jointly and severally liable.

.4
Summers v. Tice (triangle shooters) p. 268
Rule: Where a group of persons are on a hunting party
and two of them are negligent in firing in the direction of
a third person, who is injured thereby, both of those so
firing are liable for the injury suffered by the third person,
although the negligence of only one of them could have
caused the injury
Facts:
o Plaintiff and 2 defendants went out in group hunting.
o Three persons got into a triangle position.
o 2 defendants shot almost simultaneously to the
direction of the plaintiff, and plaintiff was hurt.
o Plaintiff could not prove which of the two actually shot
him.
Holding: Both defendants are held jointly and severally
liable for the whole damage.
Unique aspects of case:
o Two suspects, each has 50% chance of causing the
injury.

III Market Share Liability

.1 An extension of alternative liability: when the plaintiff
joins in the action the manufacturers of a substantial
share of the market, burden is shifted to the defendant
group to absolve themselves.
.2 Has an element of apportionment in this causation test.
Defendants are only severally liable.
.3 Policy consideration: Defendants are better able to bear
the cost of injury resulting from the manufacture of a
defective product. The manufacturer is in the best
position to discover and guard against defects in its
products and to warn of harmful effects; provide
incentive to product safety; consumers in medication are
virtually helpless to protect themselves.
.4 Although often used by litigators, but has not been used
in other than DES cases, because the case has an
unusual set of conditions (consideration and counter
Mulaney slides):

Signature disease
Decent market share data showing substantial
share by the defendant group

Generic formula

Fungible product

Plaintiff has not fault for not being

able to prove causation

Equally negligent plaintiffs

Sindell v. Abbott Labs (DES pills) p. 272

Rule: If plaintiff joins in the action the manufacturers of a
substantial share of the DES which her mother might
have taken, shifting the burden of proof to the
defendants to demonstrate that they could not have
made the substance which injured plaintiff is not
injustice.
Rule: Each defendant will be held liable for the
proportion of the judgment represented by its share of
that market, unless it can absolve itself somehow.
Facts:
o Plaintiffs mom took DES pill to prevent miscarriage
when pregnant, which pill is well known to cause
cancer in daughters.
o Plaintiff suffered cancer, and sued a group of DES
manufactures for negligence.
o Plaintiff cannot prove which manufacture made the
pill took by her mother.
Holding: The group of defendants holding substantial
market share were liable for plaintiffs damage.
Unique aspects of case:
o Court left open the question of apportionment.
o Unusual set of conditions (Mulaney slides):

Signature disease
Decent market share data showing substantial
share by the defendant group

Generic formula

Fungible product

Plaintiff has not fault for not being

able to prove causation

Equally negligent plaintiffs

IV Indivisible Injury

Ravo v. Rogatnick (twice-injured baby) p. 550

.1 Rule interpretation (Ravo)
Rule: Two parties by their separate and independent
.2 Default:
acts of negligence, cause a single, inseparable injury,
)1 When two or more tortfeasors act concurrently or in
each party is responsible for the entire injury.
concert to produce a single injury, they are

Facts:
considered joint tortfeasors.
o OB conducted 8 malpractices to the pregnant mom
)2 When two or more tortfeasors neither act
o Pediatrician conducted 3 malpractices to the born
concurrently nor in concert, they are not joint
tortfeasors. The wrong doings are independent and
baby
successive.
o The baby suffered permanent, indivisible brain injury.
.3 Exception (counter):
Holding: The two defendants were held jointly and
)1 tortfeasors who neither act in concert nor
severally liable. The Plaintiff may choose to recover
concurrently may nevertheless be considered
100% from either one of them.
jointly and severally liable, when injuries,
because of their nature, are incapable of any
reasonable or practicable division or allocation
among multiple tortfeasors.
.a E.g. 2 negligent drivers smashed one person to
death in a sequence.
.b Ravo v. Rogatnick (twice-injured baby) p. 550

V Apportionment
.1 Jurys decision
.2 Law is evolving:
)1 Pro rata basis: multiple defendants split it even (e.g.
50-50).
)2 Comparative responsibility: jury decide a
percentage division
)3 Law Evolution: If one defendant is insolvent, who
should eat the missing portion?
.a The rest defendant (jointly and severally liable)
.b The plaintiff (only severally liable)
.c Comparably distributed to all party at fault
(including at-fault defendant)
.d Hybrid: plaintiff can only collect 100% from the
defendant apportioned the bigger portion of
damage

- STRICT LIABILITY
I Abnormally Dangerous Activities
.1 Rule interpretation:
The defendant engages in a lawful activity, takes
responsible care in doing so, and is nonetheless liable
for any injuries caused by the activity.
.2 Elements (considerations):
)1 Injury (same analysis)
)2 Is this an ultrahazardous (abnormally dangerous)
activity (under the interplay of the following
factors)?
.a Existence of a high degree of risk
.b Likelihood the harm will be great
.c Inability to eliminate the risk by due care
(inherent risk; out of control of technology
reducible but not avoidable)
.d Extent of common use (asymmetrical risk
; =reciprocal risk; vs. vs.
)
.e Inappropriateness to the place
.f Value to community vs. danger
)3 Causation
.a Actual: but for
.b Proximate: Foreseeable scope of risk
.3 Defense (counter):
)1 Comparative negligence
)2 Assumption or risk/consent to participate vs.

)3 3rd partys intervention is a superseding cause (but

must show it is not foreseeable intervention.)

II Product Liability

.iv

.1 Product Liability Elements:

)1 The plaintiff suffered an injury;
)2 the defendant sold a product and is
)3 a commercial seller of such products;
)4 the product was defective at the time of sale or
marketing; and
)5 the defect actually and proximately caused the
plaintiffs injury
.2 Parties
)1 Who can sue pretty much everybody (direct
customer, indirect customer, bystander) (MacPherson
removed privity rule; Elmore extends to bystanders)
)2 Who may be sued manufacturer and retailer
(Vendermark extends to retailers.)
.3 Considerations and Counter:
)1 Product
.a Service is not product
.b Real property is not product
.c Reading material is not product
)2 Defect
.a Manufacturing defect
.i
Product does not conform to manufactures
own standard/specification
.ii
Just compare to prototype and show its not
the same
.iii
Easy to prove and similar to strict liability
.b Design defect
.i
Every product manufactured is unreasonably
dangerous/not reasonable safe/defect
.ii
Costumer expectation test defective if
design renders product more dangerous than
ordinary customer would expect it to be
o Does not matter if manufacture knows it
or not, still defective (asbestos)
o Consumer expectation is a jury questions
.iii
Risk Utility Test defective if utility does not
outweigh inherent danger in product
o Burden on plaintiff to prove there is
reasonable alternative design that is
feasible, safer and affordable

Defense (counter)
Comparative fault Plaintiff carelessly
used a defect product
Implied Assumption of Risk
o Consciously assumed risk of using
product that plaintiff knew to be
dangerous
o Usually treated as comparative fault
Unforeseeable misuse by plaintiff
o Prove no defect or link to comparative
fault
o Counter: foreseeable tempting misuse
Unforeseeable risk
o Counter: minority court allow hindsight
analysis of risk

.c Failure to Warn Defect

.i
Inadequate info and/or omission of info makes
product not reasonably safe
.ii
Warning about nature of danger
Must be adequate in both content and
presentation
Must cover foreseeable misues
.iii
Instruction about safe use
Must be specific enough for reasonably
prudent person to follow
Must warn of consequence if not followed
.iv
Pharmaceutical Warning is important
because if complied with governmental
regulation standard, cannot bring suit under
tort for design defect.
.v

Counter:
Learned Intermediary doctrine
Unforeseeable risk does not need to be
warned
o Counter: newly discovered risk need to
be informed
Obvious risk does not need to be warned
No Causation
o plaintiff would not have heeded

o
o

heeding presumption, BUT a blind,

illiterate, irresponsible plaintiff.
plaintiff already had rich experience
more than provided warning or info

III Development of product liability history

MacPherson v. Buick Motor Co. 1916 Cardozo remove privity
rule
Rule: A manufacture is strictly liable in tort when an
article he places on the market, knowing that it is to be
used without inspection for defects, proves to have a
defect that causes injury to a human beings.
Rule: Liability of the manufacturer incurred by his
warranty should not apply only to the immediate
purchaser.
Escola v. Coca Cola Bottling Co. of Fresno (exploded cola bottle)
1944 p. 889
Policy Considerations for justifying defect-based
liability:
o Manufactures owe to consumers a particularly
demanding obligation to be vigilant of product safety
o Manufactures are best situated to take precautions,
and should be given strong incentives to take such
precautions
o Manufactures are best situated to spread the risk and
cost
o Responsibility for injury stems from having marketed
a product that caused injury
o Victims entitlement to compensation should not
depend on the nature of the conduct that caused it
o Disparities in power in litigation concerning evidence
and procedure
Henningsen 1960 p896 note 7
Rule: Cannot disclaim liability for personal injury
b/c it is against public policy.
Greenman v. Yuba Power Prods., Inc (broken parts of power
tool) 1963 p.898
Rule: Strict liability is not assumed by agreement but
imposed by law. Manufactures should not be entitled to
define the scope of its own responsibility for defective
products.
Rule: Establish the manufacturers liability it was
sufficient that plaintiff proved that he was injured while
using the product in a way it was intended to be used as
a result of a defect in design and manufacture of which
plaintiff was not aware of.

Vendermark 1964 p. 902 note 4 extends to retailer

Rule: Strict liability on the manufacturer and retailer
alike affords maximum protection to the injured plaintiff
and works no injustice to the defendants, as they can
adjust the costs of such protection between them in
the course of their continuing business relationship.
Considerations:
o Marketing/distributing
o Insuring safety
o Only member of the enterprise thats available to the
plaintiff
o Have power to spread the risk
Elmore 1969 p. 903 note 7 Extend to bystanders
Rule: Bystanders should be entitled to greater protection
than the consumer or user where injury to bystanders
from the defects is reasonably foreseeable.
Considerations:
o Foreseeable!
o No chance to inspect; more helpless
o Does not benefit from the purchased good