Torts Supplement Notes

Intent
Defendant knew the consequences of his or her actions
Distinguished from motive
o Intent is a more neutral concept than motive
Intentional torts do not require motive or actual injury
o Only intent and consequences are required
o But the damages to be recovered are based on the injury
suffered
Intentional tort law applies to anyone capable of forming the required
intent, including children and mentally handicapped
o However, the mental state for forming intent can be absent
Transferred Intent
If intent is present while committing a trespass but a 3rd party suffers,
the intent transfers as intent against the 3rd party
Example: A child throws a stick to scare another child and it hits a 3rd
party and injures her. The child had no substantial knowledge of the
consequences (he didnt even see the 3rd party) but the original intent
toward the other child transfers to the 3rd party. In this case intent to
assault transfers to intent to battery
Assault
Primary features include intent +
1. Apprehension of immediate bodily contact by the plaintiff; and
2. Some overt act on the part of the defendant; and
3. The present ability of the defendant to carry out that immediate
bodily contact
Apprehension does not mean fear
Overt act usually requires more than words
o Even if a defendant threatens a person with a gun, usually some
extra action is necessary
Presence of present ability usually strengthens (2)
o To be viewed in the eyes of the plaintiff
o A plaintiff may not know the gun is unloaded
Immediacy generally makes threats of future harm unenforceable
Battery
Primary requirements include intent +
1. Actual harmful or offensive touching
Implied consent can sometimes render (1) unenforceable
False Imprisonment
Primary requirements include intent to confine +
o Intent could be substantial certainty confinement would result
1. Confinement within fixed boundaries;
a. Must be adequate to prevent reasonable escape
2. Confinement must be physical;
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a. Can be threat of physical harm but not of anything less

b. If you dont stay here Ill tell people youre a pussy is not
sufficient for a false imprisonment claim
3. Plaintiff must have knowledge of the confinement or be harmed by
it;
4. There is no legal authority for the confinement
a. Plaintiff is being held in jail awaiting trial. The trial finds him
not guilty but the sheriff waits to release him. After not guilty
verdict he is being falsely imprisoned
IIED
Fairly recent (origins are 1950s California)
Primary requirements are intent or recklessness
o Here it is generally necessary for plaintiff to prove defendant acted
for the purpose of causing emotional harm
o After the beating of a family member by a stranger the plaintiff
suffers emotional distress; this is not usually intent
Transferred intent does not apply to IIED (example above would seem
like clear case of transferred intent)
Child in closet watches parents get beaten (here, blatant disregard for
childs wellbeing recklessness can satisfy prima facie case of IIED
(independent analysis though)
o Substantial knowledge that IIED may occur is still sufficient if
defendant has special knowledge of plaintiff
o Ex: Friend of parents molests their children. Nickel case
2. In addition there must be extreme and outrageous conduct on the
part of the defendant
3. Proof plaintiff suffered severe emotional harm
Generally not successful as a fill-in tort, or a means to remedy when
no other tort is available
Interference with Property
Real property is considered as land and things permanently attached to
land
Personal property (chattels) are physical items not attached to land
Trespass to Land
The primary features include:
1. The intent to be on the land; and
a. This only requires defendant intend to be where she is
located; does not require intent to trespass
b. Example: Defendant loses control of car and winds up
on plaintiffs land. No trespass but possibly negligence.
2. Being on the land of another
a. Today land ownership possesses upward within
reasonable use. Thus, planes can safely pass overhead.
Below the surface is different.

No defense of mistake and no proof of damage unless characterized a

nuisance
o Potential trespass often may fail nuisance requirement (invasion
be unreasonable)
Trespass to Chattels
Allows recovery for interference with personal property less than total
loss of that property
The primary elements required are:
1. Intent to interfere
2. Proof of damage to chattel less than full market value
Conversion
Conversion allows the full value of the chattel to be recovered
Intentional exercise of dominion over the chattel to the exclusion of the
rights of the true owner
o This can be accomplished by:
i. Destruction of chattel
ii. Theft and subsequent claim of ownership
Dispossession or destruction so complete that only remedy is forced
sale at time and place of conversion
Conversion Factors
Extent/duration of control
Actors intent to assert hostile right
Actors good faith
Defenses to Intentional Torts
1. Consent
2. Defense of self
3. Defense of others
4. Defense of property
5. Defense of necessity
Consent
Once plaintiff shows intentional tort occurred, defendant must prove
plaintiff consented
Consent is willingness in fact for conduct to occur. It may be
manifested by action or inaction and need not be communicated to the
actor Rest. 892
Express consent is easiest to prove and usually involves a contract
(spoken or through conduct)
o Adhesion contracts may void the consent
o Consent cannot be given by a minor unless it is implied consent
in a medical emergency
Implied consent is action or inaction that reasonably conveys consent;
sometimes implied consent is offered by law

o In date rape cases, evidence presented by defendant as

plaintiffs prior sexual conduct is protected under rape shield
laws (FRE 412)
Medical Consent: Battery vs. Informed Consent
o Usually a battery claim must be brought within one year and
negligence within two dated back to the discovery of harm
o With battery it is whether doctor has obtained consent at all
o With informed consent there is a two-part objective test
1. Does the doctor have a duty to inform patient of particular
risk of injury / does doctor reasonably inform patient of that
risk
2. Had the patient been informed of the risk, would she have
abstained from the operation (Canterbury v. Spence).
o Material risks are what must be disclosed
o Material risk is a risk that a reasonable patient in a
similar circumstance would likely attach significance to
in deciding whether or not to forego the operation
o Expert testimony is helpful here
Sporting Events Consent
o Often questions of whether athlete knew or should have known
of the risk of physical injury implied consent
Consent may be conveyed expressly, by law, by custom, and inaction
Invalidations of Consent and Exceptions
1. Incapacity
o Exception is when the following elements ALL exist
1. Incapacity
2. Emergency situation
3. Lack of consent was not previously indicated
4. A reasonable person would consent under similar
circumstances
2. Action Beyond Scope of Consent
3. Fraud; Duress; Illegality
Assumption of risk (according to the negligence standard) does not bar
recovery to intentional tort; it would need to fit into the definition of
consent
Self-Defense
Rest. 65 summarized as:
(1)Subject to the statement in Subsection (3), an actor is privileged to
defend himself against another by force intended or likely to cause
death or serious bodily harm when he reasonably believes that:
a) The other is about to inflict an intentional contact or other bodily
harm, and that
b) He is thereby put in peril of death or serious bodily harm, which
can safely be prevented only by immediate use of force

(2)Privilege stated in (1) exists although the actor correctly or

reasonably believes that he can safely avoid the necessity of so
defending himself
(3) Privilege in Subsection (1) does not exist if actor correctly or
reasonably believes that he can with complete safety avoid the
necessity of so defending himself
Defense of Property
Least amount of force can be used (other than in defense of home)
Often businesses can detain someone when there exists probable
cause of burglary, but the risk of false imprisonment / defamation
claims makes security cameras a more attractive option
Necessity
Private and Public necessity
o Private necessity involves valid destruction or interference of
property or land in emergency circumstances
Interferer may still be liable to pay for damaged property
o Public necessity gives the defendant the absolute privilege to interfere with
property of others to avoid public disaster in certain situations
Negligence
Plaintiff must prove the following elements
1. Duty: Actor must behave as a reasonably prudent person under the
same or similar circumstances
2. Breach of Duty: Plaintiff must prove that the defendant violated the
relevant standard of care.
3. Causation: Plaintiff must prove both cause in fact and proximate
cause.
a. Plaintiff must connect defendants breach of duty to her harm
b. Plaintiff must show she would not have been injured but for the
defendants conduct
4. Damages: Plaintiff must prove that defendants breach caused her
to suffer actual harm
Breaking up Cause in Fact and Proximate Cause is recommended
(putting cause in fact at the beginning)
Duty
Primary element that a judge must determine actually exists
o If there is no duty then there is no case
o If there is a duty, then the judge must determine an appropriate
standard of care to measure the partys conduct
The Reasonably Prudent Person Standard
Objective standard that generally is not kind to the defendant
o Subjectivity can creep into the standard when special skills or
knowledge are required (doctor compared to doctor)
o Also when physical characteristics are at play (deaf person
compared to deaf person, paralyzed guy to paralyzed guy)

This subjectivity does not necessarily protect these defendants;

sometimes it might be unreasonable for a person with a disability to
act where others could perform the same act safely or reasonably
Duty Standard for Children
Children are deemed incapable of negligence until four or give
(generally)
o Older children are compared to reasonably prudent people of
similar age, intelligence, and experience
o The major exception is when the child engages in an adult
activity
Adult activity = dangerous activity usually undertaken by
adult
Duty Standard for Professionals
Locality Rule generally not applied today; there exists an objective
nationalized standard for professionals
Breach of Duty
Risk-Utility Balancing Test
When using the reasonably prudent person standard, Courts must
determine whether an actor created an unreasonable risk
o Rest. says, conduct is negligent if its disadvantages outweighs
its advantages
Hand test: Is P*L > B
o The balancing test today is not necessarily a strict mathematical
formula
Evidence of Custom
Not a conclusive test (not dispositive)
Negligence Per Se
Has actor violated a criminal statute or regulation?
In general there is a two-part test for determining whether a statutory
violation constitutes negligence via breach of duty
1. Statute must be designed to protect a class of persons within which
the plaintiff falls
2. Statute must be designed to protect against a type of risk that
matches the harm that the plaintiff suffered in the case at hand
Exceptions to the rule include when a person acts reasonably (perhaps
because he has some recognized incapacity i.e. minor status,
disability, etc.)
o Ex: Emergency situation forces pedestrian to walk on the wrong
side of the road and is subsequently hit by a car
Second exception is when complying with the statute is more
dangerous than violating the statute (Same example as above)
Third exception includes cases where actor does not or should not
know about the facts that make the statute applicable, or when the

statute has requirements that are sufficiently confusing to the public,

or impossibility to comply with the statute
o Ignorance of law is not an excuse but an actor who makes a
reasonable guess at compliance with an ambiguous statute is
excused from per se
Negligence per se allows the plaintiff to prove breach of duty without
using a balancing test but proof that the statute fits the two-part test is
not automatic proof of negligence
o Conversely, adherence to a statute does not automatically
demonstrate reasonable behavior
It is treated like custom evidence but not conclusive
Three approaches
o Prima facie case (If violation of statute meets negligence claims
and no exception applies, this is conclusive evidence)
o Rebuttable
o Mere evidence (closer we move toward comparative negligence,
closer we treat as mere evidence)
Res Ipsa Loquitur
Provides means for a plaintiff to claim negligence when there is no
evidence available (other than the damage) to inspectinferred
negligence
o Ex: Large barrel falls from a construction site and hits a
pedestrian on the head who was walking on the sidewalk and
nobody from the construction site claims knowledge of the barrel
Generally a plaintiff who proves res ipsa loquitur does not
automatically establish breach of duty; instead it spares plaintiff a
directed verdict and creates an inference of breach as the case goes to
the jury
In the past it was necessary to prove defendant had Exclusive
Control of the instrumentality that caused the harm
o Today, the Restatement explicitly rejects this principle based on
two reasons; 1) sometimes several instrumentalities cause the
harm, making this test indeterminate, and 2) exclusive control is
sometimes a poor way to determine which party was negligent
(driver whos brakes fail after a service had exclusive control of
car, but is he negligent?)
Checklist Notes
Most courts use a balancing test, weighing the
advantages/disadvantages of the actors conduct (first model was
Learned Hands formula B<PL)
Custom evidence is not dispositive on the issue of breach; it may be
persuasive but the judge/jury has the ultimate say
Even when a statute is silent on civil liability, a court may treat a
violation as negligence per se based on two-part test of the statute

o Designed to protect a class of persons which the plaintiff falls

o Designed to protect against type of risk that matches harm
suffered
Cause in Fact
Part of plaintiffs prima facie case
But For Test
Basic test of cause in fact
Plaintiff must prove but for the defendants tortious conduct, the
plaintiff would not have been injured
This test focuses on the negligent aspect of the tortfeasors conduct
o It does not look generally at the conduct overall
Somewhat of a speculative test (who really knows what would have
happened); the burden on the plaintiff is to present sufficient proof of
actual cause to satisfy the preponderance of the evidence standard
The But for test works perfectly well when there are multiple acts of
negligence and multiple parties (rifle company negligently ships loaded
rife to store; customer negligently pulls the trigger while pointing at
other customer)
Can be under inclusive or over inclusive
Substantial Factor Test
What happens if multiple causes exist that cancel each other out?
Hypo: Two fires started by separate parties are not sufficient to destroy
a plaintiffs home independently. They combine and then destroy the
home.
o The test works here because but for each party starting a fire
the plaintiff would not have suffered damage
o The Court held each party holding both parties jointly reliable
Hypo 2 (Anderson 1920 case) Two fires exist, one started by negligent
party the other of unknown origin are each sufficient to destroy a
plaintiffs home independently. They combine to destroy it.
o But for does not work singularly. But for the defendants
conduct the house would not have been damaged is incorrect.
The house would have burned anyway.
The Court determined that if the jury could find the defendants fire
was a material and substantial element in causing the damage there
was liability
Allocation of Harms to Causes
Substantial factor test can impose joint liability
However, there are some cases where it is possible to allocate harm to
separate causes and assign liability accordingly
Hypo: Dillon (1932) case presents boy climbing on steel girder when
electrocuted after reaching out to prevent himself from falling off of a
high bridge

o The Court determined because he would have died otherwise or

at least been limited to a life of small earning capacity due to
severe injury, liability was limited
o If this approach were to be applied to Anderson, it seems the
presence of the fire of unknown origin should bar recovery
o Restatement says substantial factor test is applicable here
Proof of Causation
This section just stresses how it can be difficult to prove causation in
fact and how expert testimony and circumstantial evidence can be
used
Hypo: Man is found at bottom of courtyard under a walkway that was
missing a guardrail. No evidence of struggle, position of body, etc.
was enough circumstantial evidence for a jury to find defendant
negligent
Loss of Chance, or The Doctor Did It
Preponderance of evidence = more likely than not
In medicine, a patient often has a % chance of recovery
o Loss of chance occurs when the doctor negligently fails to
diagnose the disease properly
o If the patient dies, is the doctor liable?
Traditional rules state doctor is not liable if patient had <50% recovery
opportunity at the time of the misdiagnosis
We cannot say more likely than not the patient would have recovered
but for the doctors negligent conduct
Modern rules may be different
o Herskovitz (1983) involved a plaintiff with a 39% recovery rate
decreasing to 25% due to negligent conduct
Jury found this decrease was a substantial factor in cause
of death (multiple cause of injury: disease and doctor
negligence)
Courts differ on how to compensate plaintiff in loss of chance cases
o Full damages stays in line with substantial factor test, while
discounted recovery is more of the allocation approach
Statistical Proof
Daubert (1995) requires plaintiff to prove drug doubled the risk of harm
in order to show it more likely than not caused the harm
Statistical evidence by itself is generally not sufficient; proof of
particular disease being linked to toxic substance, proof of amount of
exposure, proof of timing of exposure, and ruling out other possible
causative factors are persuasive
Checkpoint
1. Apply but for (even for multiple causes)
2. If but for fails use substantial factor test

3. Use allocations method if separate harms can be allocated to separate

causes
In medical and toxic tort cases, statistical proof is often not sufficient in
proving causation; circumstantial evidence is often necessary
Proximate Cause
Policy-based doctrine that limits liability even when the defendant can
be shown to have committed a tort that was a cause in fact of harm
So why is proximate cause even needed?
o Long and elaborate causal chains can cause a harm
o If such a remote act of defendant harms a person at some
distance of time or space, liability may be barred or limited
Hypo: Fire that burns plaintiffs home spreads far beyond point of
origin; NY has a special rule that says only the immediate property
damaged gets compensation from defendant
o Court said that other buildings consumed by the blaze was not a
necessary or usual result and depended upon too many factors
(wind, atmosphere, condition of materials on adjoining
structures, etc.)
Essentially a policy choice as to how far the scope of liability is drawn
Direct Cause Test
Early formulation of proximate cause rule
Additional factors or intervening forces become significant after direct
causation that
Polemis case involves wooden board being dropped into cargo hold
that ignited petrol and burned the entire ship
o Defendants argued that it was unforeseeable and that the
damages were too remote
o The Court rejected foreseeability argument; the fire was the
direct result of the dropped board
The direct cause test made the Courts distinguish between direct
damage and intervening factors, a test often lacking transparency
Foreseeability as a Limitation on Duty: The Unforeseeable Plaintif
Limits the scope of duty of due care thus limiting the scope of liability
Courts generally impose limits on duty for special situations
o Duty to land trespasser
o Duty to rescue someone in a dangerous situation
Palsgraf v. Long Island (N.Y. 1928)
o Court rules railroad had no duty to plaintiff (woman on platform
burned by fireworks)
o No foreseeable risk of harm to plaintiff; she was outside the zone
of danger and the employee had no awareness to contents of the
package
Cardoza Approach
Dissent rejected foreseeability as the determining factor
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Risk

o A negligent action is a negligent action to the public at large

o Outcome determinant, backwards looking approach; given a
prevision of the firecrackers, was injury of the plaintiff a
foreseeable result? This frame makes it related to the direct
cause test
Rule
Dominant rule for proximate cause analysis today
Defendant is liable for foreseeable types of harm that made the
conduct negligent; analysis begins with whether duty of care was owed
to plaintiff
Thee part test conducted if its determined a duty of care was owed and
that defendant breached duty by creating unforeseeable risk of harm
a. Determination of what the foreseeable risks of harm are
b. Comparison of foreseeable risks to harm actually caused
c. Determination of whether harm is within the risk
Wagon Mound cases
o Steamship Wagon Mound allowed oil to spill into harbor
o Welding operator suspended operations until receiving assurance
that oil was not flammable in the water
o Assurance proved false and resulting fire destroyed dock and
ship that welder was repairing; welder sued owners of Wagon
Mound
The Court found the fire an unforeseeable result, although it did find
the defendants action was the cause in fact of the fire
o It also found the action negligent because of the unreasonable
risks it created
The fact-finding proved a bit complex in this case; if the Court found
the fire to be a foreseeable risk then plaintiff should have suspended
welding operations and because it didnt contributory negligence could
be a claim of defendant
o Thus plaintiff probably did not contend defendants argument
that fire was unforeseeable
Court ruled against the plaintiff because risk lacked foreseeability
In second suit of same facts, the owner of the ship being repaired
brought suit against the owners of Wagon Mound
o This time the plaintiff secured a finding that the risk of fire,
although low, was foreseeable
o The severity of damage from this low risk fire would be great
o This time the Court found liability because the fire was within the
risk
The risk rule may be more expansive in finding proximate cause
because it takes into account multiple foreseeable risks that a
reasonably prudent person would have foreseen and taken steps to
avoid (multiple risks from one action)

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The Thin-Skulled Plaintif: Extent of Harm

Caveat to the risk rule: limits liability in that type of harm must be
foreseeable, but does not limit liability to extent of harm that was
foreseeable
As long as injury was within the risk of defendants negligent conduct,
the defendant is responsible for the full extent of the damage
Some Courts extend this rule to cover mental illness and psychological
injury caused by defendants negligent conduct, even when the injury
is unforeseeably severe
Steinhauser v. Hertz Corp (1970)
Small car accident causes plaintiff to suffer so much fright it developed
into paranoid schizophrenia; recovery was allowed
Damages for the thin-skull rule still must be adjusted for the likelihood
that the plaintiff would have suffered the same harm even without the
defendants wrong; the but for rule must also pass or at least be
accounted for
Intervening and Superseding Causes and the Risk Rule: The Basics
Rather than focus on a natural and continuous sequence of events,
the risk rule focuses on whether an intervening force is a foreseeable
or not
o An extraordinary and unforeseeable force would cut off the
liability of the defendant, because harm would no longer be
within the risk
o This force would be a superseding cause
In an intervening cause situation, the defendants negligence has set
the stage for possible harm the plaintiff by placing plaintiff in position
of vulnerability
Derdiarian v. Felix Contracting Corp. (N.Y. 1980)
Plaintiff was employee of subcontractor working to install a gas pipe
under a street, requiring the shut down of a traffic lane
o Defendant general contractor failed to block off lane sufficiently,
and a motorist suffered a seizure and crashed into a worker
Defendants negligence placed workers in harm but was not the cause
of the harm itself
o The issue here is whether the intervening force supersedes and
cuts off the defendants responsibility for the plaintiffs injuries,
so that defendant is not proximate cause of harm
o Court says no
Intervening force can be a 3rd party
Within the Risk? Coping with Defendants Negligence
It is often difficult to determine whether the injury falls within the risk
of the defendants negligence
o A fire starts and someone runs away and trips and gets hurt
Watson v. Kentucky and Indiana Bridge

12

Defendant railroad negligently caused a tank car of gasoline to derail,

spilling a large quantity of gasoline
A man tossed a match after lighting a cigar onto the gasoline causing a
fire and subsequent burning of plaintiffs property
o However, in this case the defendant proved the tossing of the
match was a deliberate act of a disgruntled employee, and the
court ruled a criminal act like that was so unforeseeable it barred
recovery
Isaacs v. Huntington Memorial Hospital
Court ruled a criminal act was foreseeable because defendant had a
duty to protect against it and harm was thus within the risk of not
providing security
Brauer v. New York Central (1918)
Exception to no duty to aid exists when defendants conduct placed
plaintiff in position of peril
Sometimes natural or extraordinary forces do not supersede the
foreseeable risks
Foreseeability helps define duty and proximate cause; even
foreseeable risks do not result in liability if the defendant had no duty
to protect against them
Checkpoints
Proximate cause deals with issue of proper scope of liability
Foreseeability of harm is the modern test; plaintiff must be a
foreseeable victim of the defendants negligence
o General type of harm suffered must also be foreseeable as a
result of defendants actions (harm within the risk)
Intervening causes do not cut off liability if they were foreseeable
Efforts by the victim to limit the risk are foreseeable if they are
reasonable
Superseding causes are causes that cut off liability; they must be
unforeseeable and extraordinary
o Not superseding if defendant had duty to protect against it
Multiple Tortfeasors
Joint and Several Liability
Defendant is responsible for the whole amount of plaintiffs damages,
even if the conduct of another actor contributed to the loss
All or nothing principle; consistent with old rule that contributory
negligence barred all compensation
Carolina C. & O. Ry. v. Hill (Va. 1916)
Defendant railway company damaged plaintiffs property
o At same time a lumber company engaged in activity that could
have caused the same harm
Court ruled for plaintiff, determining that joint/several liability applies
when the harm is indivisible or inseparable
13

o If it can be logically divided, defendant is liable only for losses

attributed to the component that he caused
The Restatement however does not embrace any single approach to
comparative liability / culpability
o Instead it sets out five separate tracks
1. Reflects jurisdictions that retain joint/several liability even after
adopting comparative fault
2. Opposite approach, limiting liability to a portion of the plaintiffs
damages based on % of fault assigned by fact finder
3. Permits imposition of joint/several liability subject to a
reallocation of unenforceable shares among parties in
proportion to their fault
a. Unenforceable share might be one assigned to insolvent
entity
4. Joint/several liability for economic damage but only several for
non-economic harm i.e. pain and suffering
5. Joint/several to defendants only if a % of fault exceeds a
threshold
Indeterminate Causation
Sometimes a plaintiff knows the perpetrator that caused injury is
among a group of actors but cannot identify any single actor
o Courts can employ enterprise liability and assign liability to the
entire group
Alternative liability: Three hunters are positioned in a triangle
formation and two fire off shotguns
o 3rd hunter loses his eye but cannot prove which hunter shot him
o The court assigned burden of proof to the other hunters to show
they were not liable, otherwise both would be held severally
liable
o Alternative liability is the exception; usually a defendant is liable
even if plaintiff cannot prove but for causation by
preponderance of evidence
Market share liability
o Several pharmaceutical companies are grouped together in
joint/several liability case after its discovered a common drug
had harmful side effects that were not disclaimed
o Burden of proof shifts to companies proving they didnt sell the
drug to the plaintiffs after group of plaintiffs sue
Indemnity and Contribution
When a defendants liability exceeds her pro rata or proportional share,
she can seek full reimbursement from other actors that contributed to
harm
Theory 1: Indemnity

14

Indemnity means complete reimbursement and only applies in limited

circumstances, most commonly when one party contractually agrees to
indemnify another party for liabilities
o Ex: Vicarious liability claim settles and employer then seeks
reimbursement from employee
o Ex 2: Store sells product that harms plaintiff and settles, then
seeks reimbursement from manufacturer
Theory 2: Contribution
Permits partial reimbursement
o Developed through legislation rather than common law
o Generally used in jurisdictions that have joint / several liability
Not an issue when allocated liability is assigned
Checkpoints
Joint/several liability = full liability
o No consensus has emerged about how advent of comparative
fault affects this joint/several liability
Multiple tortfeasor cases often raise causation issues
o In limited circumstances courts have created special doctrines to
avoid unfair outcomes
Enterprise, alternative, market share liability
Indemnity = complete reimbursement
Contribution = partial reimbursement
Compensatory and Punitive Damages
Fundamental goal: return plaintiff to condition before the accident
Pecuniary Damages
Medical expenses, wage loss (both past/future), lost earning capacity
(value of work plaintiff could have done but for the injury)
Plaintiff pays no taxes on compensatory damages for physical injury
o Usually pecuniary damages are adjusted for inflation and
discounted to PV
Non-pecuniary damages
Pain and suffering
Optimal insurance view
o Value of pain and suffering should be measured by whether a
person would have bargained and paid for insurance against a
loss
o Such a bargain would not be rational because supposedly money
is worth less to a person in an injured state than to a healthy
person
Loss of enjoyment of life
Plaintiff cannot engage in activities she could engage in before
accident
The issue is whether these damages can be recovered in addition to
pain and suffering damages
15

Courts are split over whether a plaintiff who is in a irreversible coma

can recover for this; some courts say loss of enjoyment is an aspect of
conscious suffering
Loss of Consortium
Special type of claim for intangible injuries is given to designated
family members who suffer as a result of physical injury to their spouse
or child
o Relational harm
o Compensates for damage to relationship brought about by injury
Strictly limited in the U.S.
o Only spouses are routinely allowed to sue for loss of consortium
although in some states parents may sue when their child is
injured and likewise for kid
Movement to Cap Damage Awards
Last two decades have seen business groups lobbying legislatures to
restrict tort recoveries
o Over half the states have now adopted some type of cap on
damages
Californias cap for pain and suffering is $250,000
Collateral Source Rule
Traditional rule is that collateral sources (insurance, workers comp,
etc.) do not reduce defendants obligation to pay damages
Sometimes an insurer pays the plaintiff under insurance policy and
acquires the plaintiffs right to sue for that amount (subrogation right)
About half the states have abolished or limited the collateral source
rule, most often for medical malpractice claims
Punitive Damages
Usually available only when tortfeasor committed serious misconduct
with bad intent or malice, although sometimes reckless indifference
may suffice
o Deterrence
Usually unpredictable and sometimes enormous
o Judges generally reduce overly large awards
Courts generally look at five factors
1. Reprehensibility of defendants misconduct
2. Defendants wealth
3. Profitability of the misconduct
4. Litigation cost
5. Aggregate of all civil and criminal sanctions against the defendant
Unusual because financial status is a factor for the jury to consider
o If deterrence is the purpose, then a small sting for a wealthy
individual would likely not serve the purpose
Not subject to the prohibition against double jeopardy; this creates
uncertainty and risk a corporation could be sued several times over
16

o Judges can therefore review prior punitive damages awarded

against defendant
1996 Supreme Court placed nationwide limit on punitive awards
BMW v. Gore in 1996 held that the ratio of punitive to actual damage
should be considered (clearly seemed to favor defendants)
Cooper Industries, Inc. v. Leatherman Tool Group the court determined
that punitive damages would no longer be a question of fact left to the
jury
The court said punitive damages should be reviewed de novo and were
not questions of fact, but of law
Campbell v. State Farm (2003)
o Campbell showed bad faith and exposed corrupt business
practices by State Farm; the court ruled for punitive damages of
$145 million compared to $1 million in compensatory damages
o Supreme Court reversed citing reprehensibility factor of BMW,
noting the court should not look at unlawful acts outside of state
lines unless those unlawful acts specifically affect the plaintiff
o This is different than Gore, where the court held Alabama had no
jurisdiction to punish for acts lawful in other jurisdictions when
determining degree of reprehensibility
Statutory Reform
Several states have recently placed limits on punitive damages in form
of cap that makes it difficult to award high punitive damages
o Based on flat amount or ratio of compensatory damages
One reform allocates portion of punitive damages to state agency
rather than to plaintiff
Limited Duty
No Duty to Act (Non-Feasance v. Misfeasance)
Traditional rule does not impose a legal duty on a defendant to act to
protect or prevent an injury to another party in a situation where one
could otherwise have been avoided, as long as no legal duty was owed
by the defendant to the plaintiff in the first place
o Distinguishes between legal and moral obligations
Yania v. Bigan
o Mere fact that person saw another in a position of peril imposed
no legal duty to act, although perhaps a moral obligation
o This principal is known as non-feasance
o As long as defendant did nothing to cause the peril there is no
duty
Misfeasance is the opposite: defendant may owe no duty to act
affirmatively, but where defendant acted in any manner otherwise
causing or creating a position of peril with respect to the victim, a duty
will be imposed

17

o Where defendant acts in some manner to actually create a

danger that places plaintiff in peril, the defendant will not be able
to withhold further action merely by relying on doctrine of nonfeasance
o Instead, a misfeasant defendant will be obligated legally to make
reasonable efforts to aid or assist anyone who has been
otherwise imperiled by defendants previous misconduct
Judge Cardoza suggested: The query in distinguishing the two is
whether the putative wrongdoer has advanced to such a point as to
have launched a force or instrument of harm, or has stopped where
inaction is at most a refusal to become an instrument for good
Solely a matter of law
Exceptions to the No Duty Non-feasance Rule
Where defendants initial negligence imperils a rescuer
o Rescue Doctrine where defendant places any person in
position of peril, the defendant owes an affirmative duty to
anyone else who may be injured while attempting to rescue that
victim
o Danger invites rescue
As long as rescuer attempts to help victim in a reasonable manner
under the circumstances, rescue itself is irrelevant
Defendant who places victim at risk and a foreseeable rescuer in some
life-threatening jeopardy
Where Defendant Voluntarily Assumes a Duty
Even when defendant owes no affirmative duty to victim, whenever
she voluntarily undertakes action a duty automatically arises to
perform such actions in a non-negligent manner
Voluntary assumption of duty with respect to plaintiff, the defendant
triggers the plaintiffs reliance upon the defendants action
By voluntarily acting in respect to the plaintiff, the defendant cannot
later discontinue that action in a negligent manner and leave plaintiff
in position of which she is worse off than before the defendant ever
offered to act
o Voluntary assumption of a duty
Special Relationship between Plaintif and Defendant
Very inclusive
Public Versus Private Duties The Public Duty Rule
Legal justification for imposing affirmative duty to act on public entity
is based solely upon special relationship between victim and entity
o Most courts require uniquely identifiable type of relationship
requiring specific duty to specific individual (not public at large)
public duty rule
o Mere existence of public entity-citizen relationship is generally
not strong enough to impose duty (i.e. police and victim of crime)

18

Voluntary Assumed Public Duties

Public entity that voluntarily assumes duty and performs it negligently
can be liable even if no duty existed before action
Florence v. Goldberg public duty rule did not apply because
municipality had furnished crossing guard for many occasions and had
voluntarily assumed this duty
o The court also determined voluntarily assuming a duty does not
mean the agency must continue the duty forever; rather, if it
ceases performing the duty it should give notice to those who
may be affected
Contractual Limitations on Duty
In most instances the court will not intervene when a contract reallocates duties in a way that differs from common law exception
may be a public policy reason
Negligent Infliction of Purely Emotional Distress Injuries No Physical Injury
Some courts treat this as a matter of proximate cause rather than duty
Historically, courts refused to allow this type of action noting a
defendant could not possibly foresee such a result and an emotional
injury with no physical injury accompanying it would be too easy to
fake
o This gave rise to the impact rule
o Plaintiff had to prove emotional distress resulted from some sort
of physical impact caused by negligent act, although not
necessarily upon herself
Courts decided if plaintiff was physically situated in such close
proximity to original victim that physical impact could have occurred
on her, this would suffice for imposing duty on defendant zone of
danger rule
Dillon Rule - When person sustaining distress is outside zone of
danger
1. Was plaintiff situated in close proximity to actual site of victims
injury
2. Whether plaintiffs emotional shock resulted from a direct, sensory
observation of the original victims injury or from merely learning
about it after the fact
3. Whether plaintiff and victim were closely related and to what degree
Courts vary on how they apply Dillon Rule some regard them as
necessary factors while others regard them in regards to overall claim
Today, the more commonly applied approach is a variation of the Dillon
Rule:
1. Be closely related to the victim originally impacted; and
2. Be physically present at scene of the accident, actually witnessing
injury/impact
3. Suffer severe emotional distress as result of witnessing the accident
Premises Liability: Duties of Owners and Occupiers of Land
19

Conditions Versus Activities on the Land

Special common law duty rules are generally only applicable to
dangerous conditions on the property, rather than dangerous activities
o The normal reasonable standard of care duty governs activities
Dangerous condition = static hazard that exists on land
Distinction between activity and dangerous condition can be fuzzy
Common Law Categories of Entrants
Premises liability only should be used when the injury takes place on
the premises
Trespassers
Someone who enters or remains on land without permission or
invitation to do so
The only duty owed is to refrain from willfully inflicting injury upon
them
o A landowner or occupant owes no duty to a trespasser except to
avoid inflicting a willful or wanton injury no duty rule
Licensees
Person who enters or remains on land with permission or consent of
landowner but not under such circumstances as would justify treating
the entrant as a true invitee
o Entitled to a bit more protection than trespasser but not as much
as invitee
In general, a landowner has no duty to prepare the land for entry by
licensee
o Licensees must accept premises as they find them
Only legal duty is to warn of hidden or concealed dangerous conditions
that landowner is actually aware of and there is no duty to inspect
premises in advance
Invitees
Any person who enters or remains on premises at express or implied
invitation for some purpose that is associated with owners business or
for some other purpose for which the premises are held open for entry
by general public
Landowners must show reasonable care under the circumstances to
maintain property and keep it safe from dangerous conditions
1. Make a reasonable inspection of premises
2. Warn of or remove or repair the hazard
Exceptions to these Categories
Child Trespassers
Any landowner or occupant who has reason to anticipate presence of
trespassing young children on premises where dangerous condition
exists must exercise duty of reasonable care
o Effectively elevates status from trespasser to invitee
Various jurisdictions employ the rule differently
20

o Some determine whether an artificial and dangerous condition

actually entices or causes child to enter premises (thus a child
who enters a premises to retrieve a ball and gets hurt is not
entitled to invitee status)
o Others focus more on foreseeability that a child may enter
premises
Discovered Trespassers
When a landowner realizes someone has entered his land, the duty
may be elevated
Fire fighters
Almost every jurisdiction treats fire fighters or emergency response
personnel as licensees
Given special training and foreseeability of dangerous conditions these
personnel are not unfairly grouped as licensees
Social Guests
Treated as licensees based upon unfairness of making landowners
and occupants inspect property in advance of every entry by an invited
guest
o Receive same protection that hosts family would receive
Jurisdictions argue over what happens when an economic benefit may
have been received by host (babysitter, cleaner, church goer, etc.)
o Some classify all expressly invited individuals as invitees while
others abolished licensee altogether
Recreational Premises
Deals with people who gratuitously enter rural lands with permission of
landowner for recreational purposes
Recreation use statutes generally classify these victims as
trespassers for purposes of defining landowners duty of care
Most recreational use statutes share several common elements:
o Pertain to only certain type of specified recreational activity
o Inapplicable whenever landowner or occupant charges a fee for
entry
Modification to Common Law Category Classifications
California Supreme Court determined in Rowland (cut hand on faucet
case, 1968) that the anachronistic categorizations of a victim would
have bearing on question of liability, the status would not be
determinative
The court focused on the landowners exercise of reasonable care
under the circumstances (normal negligence duty test)
o Immediate reaction was several jurisdictions no longer ruled
exclusively based on entrants classification
The trend stopped and reversed itself somewhat, so the majority of
jurisdictions still adhere to common law principles of categories,

21

although many have combined invitee and licensee into one category
judged by reasonable standard of care under the circumstances
o Classification of victim is nearly always made by judge, not the
jury
Lessors
Old common law was caveat lessee (let the lessee beware)
Today the standard is largely reasonable care under the circumstances
in situations:
1. Where the injury occurs in a common area of leased premises
over which landlord had retained exclusive control
2. Where landlord voluntarily undertakes to make some repairs to the
leased premises, and performs those repairs in a negligent manner;
3. Where the leased premises contained a latent defect which existed
at the time of leasing
4. Where the premises were leased for use by the public
Conclusion
Once duty of has been determined in a premises liability case, the
remaining elements of liability are essentially the same as any other
negligence action
The applicable defenses are the same
Defenses to Negligence
Common Law Contributory Negligence
In the past the court helped remedy the unfairness of contributory
negligence by modifying damages, distinguishing between gross and
slight negligence, and employing the doctrine of last clear chance
Common law came to require the defendant to carry burden of proving
plaintiff was contributorily negligent
o Required a preponderance of evidence show plaintiff was
negligent and plaintiffs negligence proximately caused the
plaintiffs injuries
Last clear chance: plaintiff has given court proof of defendants
negligence, defendant has presented prima facie evidence of plaintiffs
negligence, and the question becomes whether defendant had last
clear chance to prevent harm
o Originally, time sequenced based: did defendant have knowledge
of plaintiffs situation such that further negligent action caused
harm?
o Also, situations where defendants failure to exercise reasonable
care contributed to failure to discover plaintiffs situation, the
courts determined defendant should have known and
prevented injury (defendants own negligence overrode plaintiffs
original negligence)
o Raised the possibility that defendant must have anticipated and
protected against foreseeable contributory negligence of plaintiff

22

Today, the Restatement distinguishes between a helpless plaintiff and

an inattentive one
o Helpless plaintiff: defendants failure to actually know of
helplessness of plaintiff may be overcome by showing that if
defendant had been exercising reasonable care, defendant would
have known of plaintiffs situation
o Inattentive plaintiff: plaintiff must show defendant knew of
plaintiffs situation and disregarded it
o Generally, an inattentive plaintiff is given less legal protection
than a helpless plaintiff
The Restatement defines the two as follows:
Helpless: plaintiff can recover if he negligently subjects himself to risk
of harm from defendants subsequent negligence if, immediately
preceding harm,
o Plaintiff cannot avoid harm with reasonable care; and
o Defendant is negligent in failing to utilize reasonable care in his
opportunity to avoid harm, when he
Knows plaintiffs situation and realizes or has reason to
realize peril
Would discover peril if he were to exercise reasonable
vigilance
Inattentive: plaintiff that exercises reasonable vigilance could discover
danger created by defendants negligence can recover if, but only if,
the defendant:
o Knows of the plaintiffs situation, and
o Realizes or has reason to realize the plaintiff is inattentive and
unlikely to discover his peril in time to avoid the harm, and
o Is negligent in failing to utilize with reasonable care opportunity
to avoid it
Comparative Negligence
Allows for recovery based on allocation of fault (still rejected in a few
jurisdictions in favor of contributory negligence)
Pure comparative negligence: strictly % based recovery (a plaintiff can
recover 1% of damages even if 99% at fault)
o Public policy concerns: Every traffic accident may be 99% fault of
plaintiff and 1% of city and city still would be held liable
o Favors whoever has most damages: $300,000 car 90% at fault
collides with $3,000 car at 10% fault
o Also raises difficult insurance questions: Should expensive car
driver get $27,300 while other driver gets nothing?
Doctrine of avoidable consequences: obligation to conduct oneself
reasonably to minimize damages and avoid foreseeable harm to
oneself
Common Law Assumption of Risk

23

Express: contract away any risk

o Generally valid unless contract involves intentional harms,
extreme forms of negligence, adhesion contract or public interest
risk
o More a question of contract law than tort law
Trunkl factors
Implied Assumption of Risk under a Comparative Fault System
Implications of the Flopper case are that assumption of risk under a
comparative fault system would still bar recovery, because defendant
has not been shown to have breached a duty to the plaintiff
o Defendant owed no duty to begin with as plaintiffs negligence
was primary
o Burden of proof on defendant
In contrast, the Knight case (crushed pinky) develops secondary
assumption of risk, where defendant owes a duty and plaintiff
knowingly encounters risk of injury caused by a breach
o Primary total bar and reasonableness of plaintiffs conduct is
irrelevant
o Secondary defendant may not be relieved of liability depending
on comparative negligence statute
Reconciling primary assumption of risk and comparative negligence:
1. Defendant simply owed no duty in first instance; or
2. In modified comparative negligence jurisdiction plaintiffs own
negligence constituted more than 50% of responsible cause of harm
3. In pure comparative fault jurisdiction the plaintiffs conduct was so
egregious that no reasonable jury could conclude defendants
original negligent conduct was the proximate cause of injury
Non-Conduct Defenses, Limitations, and Immunities: Statutes of
Limitation and Repose
Accrual
For SoL the time is measured from moment cause of action is complete
(moment of injury or moment when reasonable person should know of
injury)
o May be longer for malpractice, toxic chemical consumption,
minors, etc.
SoR accrual begins at completion of specific act, no matter when
effect arises
Both raise questions of insurance coverage, especially in malpractice
suits
o Lengths vary in different jurisdictions
Garcia v. Texas Instr. (Tex. 1980) plaintiff sued for breach of contract
resulting in injury under UCC (4 year SoL) instead of personal injury
(sulfuric acid in face, SoL = 2 years)

24

o Allowed to continue suit because UCC offered recovery for

personal injury
Nelson v. Krusen (Tex. 1984) wrongful birth suit
o Challenged constitutionality of SoL and received favorable
judgment
Immunities
Family, charitable, and governmental immunity protect defendant from
suit
Family Immunities
Preserved family harmony and avoids collusive lawsuits
Bonte v. Bonte (N.H. 1992) pregnant mom negligently hit by car and
sued by dad
o N.H. subsequently abolished family immunity doctrine and
allowed suit
Shoemake v. Fogel (Tex. 1992) child died in swimming pool of
another
o Defendant argued parental negligence in management,
supervision, and control of her child survivorship damages not
reduced
o Both ways test: if child cant sue parent, defendant should not
be able to get contribution from the parent for damages they
have to pay child
Charitable Immunity
Precluded more or less today because a charity acts as a business
Governmental Immunity
Creates a second guessing of executive power
Municipal governments have no sovereign immunity
No bright-line rule between government and proprietary activities
Cufy v. City of New York (N.Y. 1987)
o Plaintiff won settlement because police department made
specific promise to provide special protection and failed to do so
(special duty rule)
Special duty:
1. Assumption of duty by municipality to act on behalf of injured party
2. Knowledge by municipalities agents that inaction could lead to
harm
3. Direct contact between municipalities agents and injured party
4. Injured partys justifiable reliance on this duty
Reliance is the chief element
Aguehounde. v. DC (D.C. 1995) Plaintiff hit by car alleged city did
not follow proper standards setting clearance level of traffic signal at
intersection
o Municipalities are immune for actions that are discretionary, or
those involving formulation of policy
25

o Not immune for ministerial actions, or acts relating to execution

of policy
o Barring suits for discretionary acts bars judicial second-guessing
of executive branch and allows state legislations to retain control
o Here, the court found the action to be discretionary
Federal Immunity
Generally deals with statutory interpretation, often FTCA and FELA
o Common law establishes background in which federal
government can be sued, prohibiting suit unless sovereign
permits it
o Sometimes individuals bring suit against an agency of the federal
government, claiming a failure to carry out its mandate to govern
o Raises separation of powers concerns: is an agency exercising
political discretion when it fails to act consistent with a mandate,
thereby causing harm? Is it governing at all?
Berkovitz v. U.S. (1988)
o Boy contracts polio after taking a vaccine the FDA approved and
licensed for a company to produce
o Supreme Court questioned whether the discretionary function
exemption of the FTCA barred a suit based on the facts
o Court held that the nature of the conduct determines if an action
is discretionary, and discretionary action involves choice of
judgment
Thus, if a federal statute tells a federal employee exactly
how to act, then there is no choice and no discretion
exemption
o If there is an element of choice, the court must decide if the
choice is one the exception was meant to shield whether
based on public policy
Because a federal statute mandated exact procedure for the FDA in
determining how to test safety of a drug, the court determined either
the FDA failed in its procedure (thus allowing a lawsuit because there
was no choice) or that the FDA followed all protocol and made a, albeit
incorrect, policy decision to license and approve the drug
o The court remanded for further determination based on these
questions
Vicarious Liability
Active tortfeasor imputes liability to responsible tortfeasor
o Generally based on a special relationship
Primarily based on policy rather than traditional legal concept of fault
Two part lawsuit:
1. First plaintiff must prove traditional tortious act by active torfeasor
2. Plaintiff must prove existence of some special relationship to
impute liability

26

Respondeat Superior
Employee/employer relationship
o Courts vary whether they employ control rationale (employer
ordered employee to act which in some way caused injury) or
enterprise rationale (control is broad and includes any act done
within scope of employment
Scope of Employment
Most jurisdictions consider some combination of these factors:
1. General character of the employment
2. Nature of the employees tortious act;
3. The purpose of the employees act; and
4. The time and place of the injury
Whatever the test employed by the jurisdiction, it is largely a
question for the jury
o In workers comp cases, jury trials are rare
The Going and Coming Rule
1. Where employee, while traveling to or from the place of employment,
is (either expressly or impliedly) rendering a special service to which
employer has consented; or
2. Where employee, while traveling to or from place of employment, is
rendering some incidental benefit to the employer that is not
otherwise common to ordinary commuting; or
3. Where the employee, while traveling to or from the place of
employment, is actually subjected to some special hazard not
common to ordinary commutes.
o Examples: Picking up supplies for employer, transporting
hazardous materials, driving employer work vehicle to work, etc.
Frolics versus Detours
Temporary departures from workplace for personal reasons
Detours = foreseeable departures that only slightly deviate from
employees scope of employment
Frolic = departure from employees scope of employment that is
completely unrelated to the employment is of a purely personal nature
o Generally frolic / detour questions are for the jury to decide
Intentional Torts and the Dual Purpose Test
Liability for an employees intentionally tortious acts can still be
imputed vicariously to employer if at least part of employees actions
were intended to further the employers business
o So personal motive may be irrelevant as long as at least some
part of employees actions are performed in furtherance of
employers business
However, exactly what constitutes at least some is debatable
o Evidence regarding an employee acting for purely personal
reasons, using excessive force, or deviating so far from the
business purpose should be analyzed by a jury
27

Punitive Damages
Generally an employer will be exempt from punitive damages through
vicarious liability
Exception complicity theory, or the rule intended to protect public
interest as well as employers who do attempt to protect members of
public by implementing reasonable precautions against foreseeable
aggravated misconduct of employees
Direct Versus Indirect Liability
Hypo: Defendant hires unqualified, inexperienced employee to perform
task and an injury results
o Direct liability based upon employer negligently hiring untrained
employee to perform a task for which more training and
experience was required, or
o Employer negligently failed to provide proper training
The reason distinguishing between direct and indirect liability is so
important revolves around punitive damages
o Also, a jury could potentially find an employee acted outside the
scope of employment but still find the employers negligent
o Generally, a finding of direct liability also favors the plaintiff
Independent Contractors
Generally defined as someone who performs work for hire for the
defendant, but who is not considered to be an employee
o Many tests have risen distinguishing the two, mostly relating to
the amount of control an employer has over either employee or
independent contractor
In the majority of jurisdictions, an employer cannot be held vicariously
liable for independent contractors negligence
Exceptions to liability exemption for independent contractors:
1. Work performed is intrinsically dangerous; or
a. Intrinsically dangerous = super dangerous work where danger
cannot be eliminated even with utmost care
2. Work subjects the worker to peculiar risk that is different from the
ordinary risks associated with the activity in question; or
a. Peculiar risk = some degree of special danger that is uniquely
different from ordinary foreseeable risks associated with normal
work activity
3. Employer has a legally non-delegable duty to perform the work in
question
a. May be imposed by statute or common law as a matter of public
policy
b. So important to community that employer should not be
permitted to transfer these duties to another
28

Joint Enterprises and Joint Ventures

Joint venture = special relationship among two or more persons with
respect to a single business activity (usually undertaken for profit)
o Each individual participant can be liable for injuries tortuously
inflicted onto 3rd party by any other member, and each party
owes duty directly to each other member of joint venture
Joint enterprise = similar relationship among two or more persons with
respect to a non-business related activity
o Same as joint enterprise, but members do not owe duty to each
other
Generally share the same minimum requirements:
1. Some type of agreement, either express or implied, among all
participants in activity in question;
2. A common purpose; and
3. An equal right of control over the activity involved
Agreements necessary to create joint V/E need not be in writing
o Three guys agreeing to go on a hunting trip would probably
suffice 1&2
o Subjective motive is irrelevant as long as objectively it appears
there is a common purpose and agreement
o (3) Involves equal right of control; actual physical control may be
irrelevant
Most joint ventures is based upon a single, one-time business
transaction
o A partnership involves a long-term business relationship
Partnerships are not recognized as separate legal entities, so any harm
suffered as a result of a partners misconduct can only be remedied by
partner causing harm
Common Law Strict Liability
Old common law principles found that selling food gave rise to strict
liability
70s/80s transporting gasoline and inherently dangerous activities gave
rise to strict liability
Restatement 519/520
o Reciprocal risks doing something that creates risks not shared
by population in general (does that trigger strict liability)
Today, Posner shut it down and court is hesitant to apply strict liability
in ultra hazardous activity
o Today the test revolves around whether the thing you were doing
could have been done safer
Wild Animals and Domestic Animals Known to Be Dangerous
First determination is whether wild animal or domestic animal

29

o Crucial determination in negligence analysis (whether based on

risk associated with keeping of a wild animal, or in how domestic
animal is kept)
o Domesticated = by custom devoted to service of mankind at
time and in the place in which they are kept (wild = not before
same definition)
Courts also look at whether wild animal did something characteristic of
its type
For domestic cases, strict liability only attaches where the owner
knows or has reason to know that the animal is abnormally dangerous
o Issue is generally whether animal was known to be dangerous
More stress is typically placed in strict liability cases on proximate
cause analysis
Some courts are reluctant to impose strict liability for types of
damages that are not directly related to the dangerous animal
o In other words, a court may be less likely to impose strict liability
on a defendant over a claim by a mother for negligent infliction
of emotional distress after watching her son get attacked by a
dog
o However, several states allow strict liability claims when the dog
is not on a leash, in violation of leash laws (negligence per se)
Distinction between strict liability and negligence is lessened in
jurisdictions that allow comparative fault defenses to strict liability
claims
Livestock
Strict liability generally limited to when animal trespasses on anothers
real property; for example, when a motorcyclist hits a cow on the
freeway, the cow owners liability will be limited to negligence
Abnormally Dangerous Activities Rylands v. Fletcher
Broad rule: Imposition of strict liability when a person conducts an
abnormally dangerous activity
Narrow rule: limited to the facts of the original case, and no more
o Facts: plaintiff was coal mine operator and defendant ran a mill
defendant constructed reservoir above old mine shifts after
filling reservoir with water it collapsed and the entire mine was
flooded
Defendant was not immediately at fault because of a latent defect in
the mine
The only issue to be decided is whether defendant should be liable
when he lawfully brings something on his land that is harmless but
naturally does great harm when it escapes
o While defendant may defend on grounds that escape was
plaintiffs fault or unforeseeable act of God, the trigger seems to

30

be nature of the activity and whether it is capable of causing

harm
o Place of injury seems to be immaterial
Here, the court determined the use of land was non-natural (uses that
are for the purpose of introducing something that was not naturally on
the land)
o Defendants acted at their own peril and are thus held
accountable
o Courts later interpreted case to apply only to extraordinary or
abnormal activities
The Restatement and Strict Liability
Historical Background
Second Restatement included words abnormally dangerous to
describe trigger for strict liability, and it did not specify type of activity
A factor analysis set forth whether activity was abnormally
dangerous
a. Existence of high degree of risk of some harm to the person,
land or chattels of others;
b. Likelihood that the harm that results from it will be great;
c. Inability to eliminate the risk by the exercise of reasonable
care
d. Extent to which activity is not a matter of common usage
e. Inappropriateness of the activity to the place where it is
carried on;
f. Extent to which its value to the community is outweighed by
its dangerous attributes
Blasting, operation of hazardous waste site, transporting chemicals,
etc. are all abnormally dangerous activities
o Selling a firearm or using un-insulated power lines is not
o Whether abnormally dangerous really depends on jurisdiction
George Fletcher argued for paradigm of reciprocity to describe when
strict liability analysis should be used
o Richard Epstein argues that causation adequately captures when
liability should be imposed with negligence and strict liability is
unnecessary
Siegler v. Kuhlman (Wash. 1972)
o Defendant driving loaded gas truck (which was inspected
carefully before leaving warehouse)
o Tank became unattached and plaintiff crashed into it and died
o Plaintiffs estate argued res ipsa but trial court found in favor of
defendant
o Supreme Court reversed as a matter of strict liability, noting
Highly flammable, volatile, and explosive substance
Carried at high rate of speed

31

 On the public highway

Subject to ignition and explosion if it escapes
So, due to high degree of risk, great harm of injury, and inability to
eliminate risk with reasonable care, strict liability applied
Posner and Factor (f)
Indiana Harbor v. American Cyanide (7th Cir. 1990)
o Judge Posner argued factor (f) is prime factor for determining
whether strict liability applies economic analysis
o Issue became whether shipper of hazardous chemical should be
held strictly liable for accidents to shipment while en route to
destination
Court found that negligence could remedy and deter this
behavior
Also found that ordinary negligence caused leak and thus
(c) did not apply
Plaintiff did not show ordinary negligence regime would not
provide necessary and adequate deterrence against the
defendants
New rationale: plaintiff must demonstrate negligence law would not be
adequate to deter the accident
More likely that accident is caused as result of someones negligence,
the less likely that strict liability would be appropriate as proper theory
Even if res ipsa loquitur is not available, when plaintiff shows
probability analysis that negligence existed but cannot relate it to any
specific defendant, such proof probably suffices to defeat claim for
strict liability
o Why? Because it establishes that negligence would have
provided adequate accident deterrence
Another trap exists when plaintiff sues multiple defendants
o Any evidence of negligence on part of any defendant, even if
insufficient to prove negligence against that defendant, likely
defeats a strict liability claim
Nuisance
Umbrella term can encompass a lot of other torts
Public nuisance = substantial interference with the publics right to
health, safety, comfort, or convenience (a public representative usually
brings the action)
Private nuisance = claim to protect an interest in land
o Unreasonable interference with an owners right to peaceful use
and enjoyment of land
Public Nuisance
Types of Claims

32

Many claims are attempts to enforce minor criminal laws and

defendants who have been engaged in unlawful conduct may be sued
in public nuisance for injunction or public damages
Most modern zoning laws have rendered older use of public nuisance
obsolete
o Still, public nuisance cases arise (ex: bar located in properly
zoned area allows excessive trash, noise, lights, etc.)
o No nuisance claim on presence of building alone if in properly
zoned area (must be related to business activity)
Continues to be method to protect publics right to use roads /
waterways
o Landowner allows trees and bushes to grow into public road
Bases of Claims
Blasting causes road to be showered with debris; reasonable care was
used but blasting is inherently dangerous so it falls under strict liability
public nuisance could be brought with basis of claim being strict
liability
Pollution from a factory causes the air to be toxic nearby public
nuisance based on negligence
o Same example but this time the factory owner knows of the issue
but decides to keep manufacturing public nuisance based on
intentional tort
Bases of claim can change over time PN may be based on
negligence and then switch to intentional if defendant becomes aware
of harm and continues action
o Affects damages (Compensatory v. Punitive)
o Affects defenses
Proper Party Plaintif
Public official is probably most proper plaintiff
Private Action for Public Nuisance
Special circumstances may give rise to public nuisance claim that
affects an individual more than the public
1. Private individual suffered special harm different in kind from the
general public and not just different in degree
2. Private individual has suffered private nuisance in conjunction
with public nuisance
Tree falls into road and private individual cant get out of driveway. It
also blocks the main street but other cars may detour to other roads
o This would be different degree of harm but it may not be
different in kind; however, it probably satisfies (2)
If a tree falls and blocks a road and simultaneously falls on an
individuals car, this would certainly be a different degree and different
in kind (1)
Private Nuisance

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Designed to remedy private individuals interest in her own

use/enjoyment of land
o Can be based on any interference with individuals exclusive
right to possession of land (trespass involves physical invasion,
nuisance is for non-physical invasion)
o Odors, noises, lights, and pollution are most common
Difficulty comes with classification of gases/particles as physical or
non-physical
o Lawyers should plead in the alternative (trespass or nuisance)
Bases of Liability
Essentially the same as public nuisance
Substantial Harm
Public and private nuisance must result in substantial harm
o Courts employ a balancing test in determining substantial
Some cases indicate nuisance claim cannot protect hypersensitive use
of land
o Cannot have any light shined on property due to special trees
growing
Social custom or expectations are also factored
o Plaintiff may not have claim against factory smells if his home is
in the middle of an area surrounded by 10 factories and no other
homes are nearby
Continuity also factored in one time escape of smoke and particles
may be a nuisance but it depends on the magnitude of the harm
o If the smoke and particles scorched the defendants home then it
could be a nuisance (or a trespass, perhaps)
Damages
General formula for compensatory damages is to take the fair market
value of the land before the nuisance and subtract the fair market
value immediately after the nuisance
If based on intent, court may allow for punitive damages
Injunctive Relief
Difficulty here arises when plaintiff seeks to shut down factory or
business for private nuisance
o Court may balance the equities
o Basically looks at value of business in comparison to the value
lost by the plaintiffs right and enjoyment of land
Madison v. Ducktown Sulphur (1904, Tenn)
o Local residents were denied an injunction because the factory
had too great an impact on the state economy
Georgia v. Tennessee Copper
o Injunction granted because the interest of the entire state was at
stake; the pollution was causing harm to the air of GA

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Just because an injunction is not granted does not mean the plaintiff
will not receive compensatory damages
o If the continuance of the nuisance would reduce property value,
the plaintiff could recover damages for the lost value
Policy concern businesses can essentially pay for the rights to
pollute
o Weigh this against granting an injunction every time
Defenses should be Consistent with Basis of Claim
Intent
Implied or express consent
o Plaintiff may have moved into home with full knowledge of the
noise and smells emitted from a nearby factory
o However, this creates a special situation (moving to a nuisance
area) that the courts have recognized does not create an
absolute bar to recovery
Negligence
Common law defenses apply
Smoke created from defendant burning wood on his property causes
plaintiff to wreck his car when he cant see on a public road
o Defenses include: failure to use reasonable care was substantial
cause of the accident (depending on jurisdiction
comparative/contributory)
o Also assumption of risk plaintiff saw the smoke ahead but
decided to proceed into the hazy area
Strict Liability
Common law defenses (in comparative fault jurisdiction, usually
assumption of risk or contributory negligence)
Moving to the Nuisance
Property price should incorporate reduced value from nuisance
unfair to allow plaintiff to pay reduced price then recover damages
Despite the obvious defenses that would seem to apply, courts
generally decide that moving to the nuisance is merely a factor look at
in determining substantial harm
Self-Help to Abate a Nuisance
Generally not recognized as a valid defense but may be argued
o Person grows tired of flood lights pointing to his property and
walks over and pulls the plug
o Person gets sued for trespass to land/trespass to chattels

Products Liability

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Governs responsibility of sellers of products for injuries caused by

defects
Historical Background and Policy Issues
When a product moves through a chain of buyers and sellers, finally
resulting in injury, the remoteness of the victim to the allegedly
negligent builder injects uncertainty into the claim
o Did builder anticipate victims use? Was there intervening
negligence?
Gives rise to individuals passing liability up the chain if contracts did
not limit liability
o May impose liability for something unknown to one of parties to
original contract
o Contract would not define liability instead, an almost unlimited
liability would be imposed on manufacturer for injury to any
subsequent party
Winterbottom v. Wright (Exch. 1842) defective wagon wheel injured
3rd party not in privity to original contract (Court held no negligence
claim could be asserted)
Thomas v. Winchester (1852) Court found an exception to this rule
when a product is imminently dangerous to human life (mislabeled
poison case)
o Here, foreseeability of harm is present to the public at large (or
remote third parties)
o Contract did not draw the boundary of the defendants duty,
either
Policy? Provides incentive for safety on part of manufacturer or those
who traded in products that were likely to cause harm to third parties
No intervening cause because middle-men were acting in reliance on
defendants negligent label
The court recognized the exception because: Causal
responsibility was clear and risk to remote 3 rd parties was
significant
Another exception exists when defendant knows product contains
dangerous defect and releases product on market anyway
o Here, anyone who may use the product, regardless of privity of
contract, retains a claim of negligence against manufacturer
(dangerous risk is not only foreseeable but known to defendant)
Negligence Escapes the Privity Limitation
Industrial revolution makes products passing between manufacturer
and many 3rd parties a normal commercial activity
McPherson v. Buick Motor Co. (N.Y. 1916)
o Plaintiff injured while driving Buick when a wheel collapsed
o No privity of contract because plaintiff purchased from a dealer
o Buick did not know of defect / product not imminently dangerous,
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o Court allowed the suit nonetheless:

Cardozo ruled If the nature of a thing is such that it is
reasonably certain to place life and limb in peril when
negligently made, it is then a thing of danger
Basically, the new test is foreseeability of harm to remote
user; a new duty (careful construction) is owed to remote
users by manufacturer
o Plaintiff still had to show negligent construction (a tough task)
o Res ipsa may offer an escape hatch (accident allows inference of
negligence)
o Negligence escaped limitation of privity doctrine, but recovery
not automatic
Policy Argument for Strict Liability
The Escola Concurrence:
Plaintiff received severe cuts when Coca-Cola bottle exploded in her
hand
Claim based on negligence but forced to rely on res ipsa due to lack of
evidence
o Element of exclusive control not clear (bottle had passed through
many hands) but court finds in favor of plaintiff against
defendant
Justice Traynor based strict liability opinion on four policy goals:
1. Encouraged reduction of negligent manufacturing
2. Loss shifting and loss spreading function
a. Insurance function company knows it may be held liable for
defects and can price its items on the marketplace
accordingly
3. Simplify trial by eliminating difficult factual issue of defendants
negligence
4. Rationalize developments in law of implied warranty (instead of
passing liability up the ladder, efficient litigation directly against
manufacturer)
Criticisms against Traynors strict liability rule include:
1. Should lead to same expenditure on accident avoidance (does not
effectively reduce hazards to life and health)
2. Some accidents are easier to avoid than others using proper care of a
product
3. Tort litigation is expensive way to provide compensation
Even with these criticisms, its important to realize negligence may not
do an adequate job of controlling risks of an activity
o In products liability case, it may be so difficult to prove negligent
manufacturing that manufacturers have no incentive to make
safe products
Breach of Implied Warranty and Limits of Contract

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Roots partially in early contract law, shared privity limitation of

negligence recovery
Warranty did involve strict liability (to live up to express / implied
claims), although it could be disclaimed and required other facets like
prompt notice and reliance
Henningsen v. Bloomfield Motors, Inc. (1960)
o Court allowed purchaser of new automobile to sue Chrysler,
finding lack of privity and express disclaimer of all implied
warranties invalid
o Lack of bargaining power for ordinary consumer invoked public
policy concern that consumer should be protected with nonwaivable implied warr.
Thus, old traditional warranty law became outdated
Modern Product Liability
Greenman v. Yuba Power Products (Cal. 1963)
Traynor abandoned warranty law for tort law
o Strict liability for sellers when a product is in defective condition
and unreasonably dangerous to user / consumer, if the seller was
in the business of selling the product
Defect: Manufacturing Defect
Product seller liable only when the product has a defect that actually
causes the injury
o Product departs from intended design even though all possible
care was exercised in the preparation and marketing of the
product
Plaintiffs are not required to prove negligence, simplifying their burden
of proof, and manufacturers can set their level of quality control based
upon # of accidents, whose costs can then be spread among product
users as a component of the price
o Remains difficult for plaintiffs product is destroyed in accident,
rotten food discarded before chemical testing, etc.
o In addition, defect must be traced back to targeted defendants
production (defect cannot be alteration made during chain of
sales)
o Proof of injury caused by defect also required
o Contributory negligence a valid defense for defendant
Defect: Design Defect
No obvious standard of comparison is available to judge whether
product is more dangerous than it ought to be
o Old standard judged whether product was in defective condition
unreasonably dangerous, where defective condition = a
condition not contemplated by ultimate consumer that will be
unreasonably dangerous to him, where unreasonably

38

1.
2.
3.
4.
5.
6.
7.

dangerous = dangerous to an extent beyond that which would

be contemplated by ordinary consumer
Somewhat circular test consumer expectations test
Test accounted for reasonable dangers (ovens get hot, knives are
sharp, etc.)
o Test looked more at dangers a consumer wouldnt be reasonably
expecting or a latent danger hidden in a product
Tended to act as a minimum standard of liability, and left open the
question of what other types of designs might be defective
Risk-utility test: After the fact analysis of a product performed by the
jury, determining whether the product was defective because it could
easily have been made safer by a design change
o Often times a consumer wont be able to judge this
Generally looks at seven elements:
Utility of the product
Seriousness of the dangers posed by the product
Availability of safer substitute products
Ability to design a safer product what would still be useable and
affordable
Users ability to avoid the danger by being careful
The users awareness of the dangers of product
The manufacturers ability to spread the loss through the price of the
product or by means of insurance
OBrien v. Muskin (N.J. 1983) vinyl-liner for above-ground pool were
found so unsafe that they were deemed defective despite no other
similar products in the marketplace
3rd Restatement A product is defective in design when the
foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative design
and the omission of the alternative design renders the product not
reasonably safe
manifestly unreasonable design exploding cigar
What constitutes a safer alternative design?
o Must result in increase in safety sufficient to have prevented or
significantly reduced harm
o Must not introduce new dangers while preventing risk that
harmed P
o Must have been design manufacturer could have feasibly
adopted at the time the product was marketed
Feasibility safety gain must outweigh loss in efficiency
Must be based on technology available at time of
manufacture
Must still have been economically viable (not too expensive
because of safety feature)

39

The court should then weight the alternative design against the
product that caused the harm and decide if it was unreasonably
dangerous
o Here, the actual design could be less safe but not defective
Examples: cloth top convertible v. solid top
o Frontal bullet proof vest v. full protection vest
o These products are less safe than the other but are not defective
Some products are far more dangerous than others but are designed
for experts to use marketing must reflect this
When a product is found unreasonably dangerous compared to
alternative design, warning labels are not an automatic defense
Defect: Failure to Warn
Failure to warn causes product to be not reasonably safe = defect
Not responsible to warn for unforeseeable dangers/uses
Warnings are most important when danger is hidden or not known to
ordinary consumer
o Manufacturer is in best position to warn
o Manufacturer does not need to warn about obvious dangers
Kitchen knives dont need warning labels
1) Warning must get to ultimate user of product (labels directly on
product help)
o When unfeasible, instruction manuals/papers will help reduce
liability
2) Warning must be clear enough to alert user of the danger
Duty to warn may require manufacturer to anticipate foreseeable
misuses of the product and warn against them
o Warning: Operation of machinery while intoxicated may result in
harm
Unavoidably Dangerous Products: Prescription Drugs and Medical Devices
Restatement 402 Cmt. (k) recognizes these may require special rules
Brown v. Superior Court (Cal. 1988)
o Manufacturer is required to warn about risks and side effects that
it knew or should have known about as the result of reasonable
testing (formally adopted comment (k))
o Not liable for dangerous side effect undiscovered through
extensive testing
Defectively designed drug = risks outweigh benefits that no
reasonable health care provider would prescribe the drug for any class
of person
Duty to warn generally should be directed toward physician or health
care provider
o Often technical and drafted for expert (not readily
understandable by ordinary consumer)

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o Thus, satisfies duty to warn simply by conveying warnings to

physician
Some special cases give rise to a more expansive duty to warn
o Birth control pills, mass immunizations, medicine directed toward
consumer and sold to public
The law is still developing here
Case of Potential Defendants: Who is a Seller
Strict liability rule for defective product applies to all commercial
sellers
o Includes original manufacturer, wholesalers and retailers
Policy: protects consumers by adding another potential defendant,
especially when manufacturer may be outside jurisdiction or insolvent
(Vandermark v. Ford Motor Co. (Cal. 1964); retailers are responsible for
putting drug into market (they may have right to
indemnity/contribution over manufacturer)
Some jurisdictions limit liability for retailers when defect was
exclusively a product of negligent manufacturing
Restatements exclude strict liability for casual sellers of products
o Gas stations are not casual sellers of food
o A furniture store selling a company vehicle may be a casual
seller
Manufacturers of component parts are subject to strict liability only if
the part itself is defective and is the result of the injury
o Defective installation or handling does not invoke strict liability
Courts have extended strict liability to some leases of products,
providing lessor was in business of commercial leases (automobile
renter)
o No sale takes place and ownership is not transferred but
commercial lessor is viewed as being responsible for mass
distribution of products into hands of consumers
o Includes products given away and used in demonstrations
Special rules govern commercial sellers of used products
o Policy against strict liability: not closely connected to
manufacturer, less able to assist in discovery and elimination of
defect, cannot easily obtain contractual indemnity
o Also, these sellers usually do not create expectation of quality
and safety found on new products
Majority rule: at most impose a negligence standard (when defendant
simply resells products without making changes)
o Strict liability may appear if reseller makes some changes that
introduce a new defect and cause harm (but not at design level)
Provider of services that uses defective product (mechanic, house
cleaner, etc.)
o Here, generally negligence standard
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Economic Loss Limitation

Significant limitation on scope of recovery for product related injury
o Pure economic loss = loss resulting from failure of product to
perform, unaccompanied by person injury or damage to property
o Recovery only for express or implied warranty breach
Seely v. White Motor Co. (Cal. 1965)
Plaintiff purchased truck from White
The truck performed poorly and caused a crash when the brakes failed
o No injury so damages limited to value of truck and plaintiffs lost
profits because truck was unavailable for use
Cal. Court allowed recovery under warranty theory but not tort theory
of strict liability
o Reasoning: issues for personal injury and safety require fixed
standards of tor law, but issues of performance may be left to
private ordering of parties
o Economic loss rule covers damage to product itself but not
damage to other property
Plaintiffs Conduct
Courts generally apply the apportionment rules of comparative
negligence to products liability cases
o Policy: plaintiffs should use products with care
Sometimes a plaintiffs misuse of a product goes so far outside
anticipated uses of the product it would bar recovery
o Unforeseeable misuse may be indication product is not defective
at all
o Misuse can also be deemed proximate cause of harm
Checkpoints for Product Liability
Historically based on negligence or breach of warranty
o Today, mostly a strict liability standard
Policy for strict liability include:
o Incentive to reduce defects
o Provides loss shifting and loss spreading function
o Easier to administer because it would eliminate proof of fault
o Injured victims can sue manufacturer directly
Manufacturing defect when product departs from intended design
Design defect when foreseeable risks could have been eliminated by
feasible design change, and failure to adopt change makes product not
reasonably safe
Warning defect when manufacturer fails to inform user of known risks
or fails to instruct user on how to use product safely
Medicine and drugs warn of known risks
Strict liability imposed on businesses selling products (as long as not
isolated sale)
o Includes retailers, wholesalers, commercial lessors
42

o Does not include sellers of used products (assuming no change

to product)
Does not apply to cases of pure economic loss
Plaintiffs conduct is important consideration in products liability
litigation
o Misuse and failure to use due care (includes assumption of risk)

Review Day Notes

Holmes, Negligence
Historically, strict liability was the common law (writ system) direct liability
for directly caused harm
More humane as negligence analysis develops
Posner, Law and Economics
Economic analysis has been the test since the beginning
P*L>B
Rabun, Negligence and Strict Liability
Kind of a mix between the two
Mass produced products in the 1930s evoked stronger strict liability
rules
o 80s/90s recalibration of products liability (manufacturing, design,
duty to warn defects)
Analytical Steps
Statutes
Relevant? Designed to protect this plaintiff from this liability? Designed
to protect this risk? This plaintiff? What is the effect of the statute?

43

If causation is direct, Polemis is still majority rule

Foreseeability of harm is not considered when its direct causation
o Think skull rule applies
Indirect (remote) cases one approach is to make it a strict duty
question (Cardoza)
Andrews duty to world but look at superseding / intervening causes
Green Combo / foreseeability
Barker v. Lull Engineering (forklift)
2-part test for whether product is defective?
o Violate consumer expectations? or
o Defect in product that proximately caused injury
Burden would then be on defendant to prove utility of design
Osorio v. One World (table saw)
How does markets expectation to allow for certain risks categorize
products
o Convertible market has categorized the risks
402(a) doesnt say anything about this
Osorio decides its a jury question entire category found defective
Brown v. Superior Court
Design defects regarding pharmaceuticals (comment (k))
Some drugs are unavoidably dangerous but not unreasonably
dangerous if unavoidably dangerous
Birth control prime example of something given to pharmacist
designed to be given to patient that needs warnings on the product
itself that must be clear
Products-Design Defects Test
402(a) majority rule is still framed under 402(a) the burden being on
the plaintiff in a design defect case to show design defect was
defendants fault
o Risk utility analysis burden lies on plaintiff
Typically jury makes decision whether there is a breach of duty
When in doubt of who decides jury / judge decide both (example:
proximate cause [jury weighs in but judge can make ultimate decision])
o Duty is a difficult question but usually reserved for jury
o Policy questions relating to whether a duty is owed and if there
was a breach foreseeability, reprehensibility of conduct, and
whether there is insurance

44