1.

Introduction
i. Torts are injuries/wrongs
ii. Purposes of a torts lawsuit
1. Compensate people for their inuries
a. Get them back to where they were before the incident
2. Prevention of future injuries
a. enjoin certain behavior
3. Punish wrongdoer
4. Deterrence of tortuous behavior by defendant or others
b. Corrective Justice & Utilitarian Approaches
i. Instrumental/Utilitarian
1. Prevention is major goal
2. Tort law ought to benefit society in general
3. Case is bigger than just the named parties-> deterrence
ii. Corrective Justice
1. Compensation of injured parties
2. Retribution/punishment
c. Argumentative techniques
i. Slippery slope
1. COUNTERARG: limiting principle
ii. Rights (liberty vs. security)
1. Liberty-individual rights
2. Security- greater good
iii. Fairness (between parties)
1. Expectations, reliance, culpability
iv. Utilitarian
1. Types of behavior produced by rule (deterrence)
v. Systemic- effect of a given interpretation on the judicial system
1. Too much discretion
2. Easy/hard to apply
3. Flood of litigation
4. Rules vs. standards
vi. Institutional Competency
1. Deterrence to legislative
2. Judge can decide
d. Areas of tort law
i. Intentional torts
1. Purposefully caused harms
2. There are specific affirmative defenses against all intentional torts
ii. Unintentional Torts
1. Negligence
2. Recklessness
3. Carelessness causing injury
4. There are specific defenses against all unintentional torts
iii. Strict liability
1. Liability w/o fault
2. You caused it, you must pay for it
e. Prima facie case
i. Elements of the tort that must be proven for a case to lie
f. Types of defenses
i. Derivative
1. Derived from prima facie case
2. EX: pf case requires elements a,b,c. failure of other party to prove an
element would be a derivative defense.
ii. Affirmative

1. Admits commission of tort, however claims extenuating circumstances

as justification for the act
a. Self defense
iii. There is NO insanity defense in torts!!!
1. Encourages people to care for mentally ill
g. Types of Tort Claims
2. Intentional Torts
a. 2 requirements
i. Act/conduct requirement
1. Defendant intended the act that produced the injury
ii. Intent requirement
1. Defendant intended the resulting injury to the plaintiff (or decedent)
2. 2 prong test:
a. Desire to bring about the harmful or offensive conduct
b. Knowledge of substantial certainty (KSC) that the harm would
result
3. Use a subjective test for intent
a. Not what a reasonable person would have been thining; but
b. What the specific person was thinking
b. Battery
i. Intent requirement
1. In general
a. Desire to cause of KSC of causing contact
2. Intending contact that is harmful or offensive
a. The knowledge of substantial certainty that the contact would
result
b. CONTACT IS THE KEY ELEMENT OF BATTERY
c. The contact (or apprehension of said contact) that was intended
must be one that is recognized by the court as either harmful or
offensive
d. Intent requires only that some sort of contact is intendedit is not required that you intend a harmful or offensive contact
3. TYPES OF INTENT FOR BATTERY(or ASSAULT)
a. Desire to cause contact (which is either harmful or offensive)
b. KSC of causing contatct (which is either harmful or offensive)
c. Desire to cause imminent apprehension of contact (which is
either harmful or offensive)
d. KSC of causing imminent apprehension of contact (which is
either harmful or offensive)
4. DUAL INTENT RULE (Some states use, incl. Colorado)
a. Not only need intent to contact, but intend that contact is
harmful or offensive
ii. Also need intent that the contact be harmful or offensive
Conduct requirement
1. Causing harmful or offensive contact (must be objectively harmful)
2. A harmful or offensive contact with another person directly or indirectly
results (there must be a causal relationship between the intent and the
actual contact)
3. MUST be voluntary, not involuntary
4. Waters v. Blackshear
a. boy puts firecracker in shoe of another boy, injures him
b. there was no ACTUAL contact between the boys
i. Fisher court said an object closely associated with the
plaintiffs body counted as contact
ii. if defendant put a force in motion that resulted in the
contact, also works

5. Polmatier v. Russ
a. Man shoots father in law to death (man was insane)
b. No insanity defense...irrational motive doesnt mean that it was
c. When the court refers to injury, they mean the invasion of a
persons legally protected interest
6. Nelson v. Carroll
a. Carroll hits nelson with gun b/c of debt owed; accidentally shoots
Nelson
b. Didnt matter that he shot him by accident; he clearly intended
to invade Nelsons legally protected interests
c. It is more appropriate for those losses to fall on Carroll as the
wrongdoer than to Nelson as the innocent Victim
7. White v. Muniz
a. Alzheimers patient hits nurse in jaw
b. Colorado has dual intent law
i. Defendant must intend both contact and
offensiveness/harmfulness
1. Doesnt change what is harmful or offensive
ii. B/c she was mentally ill, D did not really intend the
offense/harm
8. Offensive contacts
a. Leichtman v. WLW Jacor Communications, Inc.
i. Radio host blows smoke in face of anti-smoking advocate
1. Offensive contact? Yes; contact which is offensive
to a reasonable sense of personal dignity is
offensive contact (OBJECTIVE TEST)
2. NOMINAL DAMAGES: used where there is minimal
injury (no actual harm here); can be as low as $1.
c. Assault
i. Intent
1. Desire to cause or KSC of causing contact
ii. Conduct
1. Causing apprehension of imminent contact
a. Apprehension must be objectively reasonable
2. Words alone are not enough for assault.
a. Actions must fill the gap
d. Transferred Intent
i. 2 types
1. Transfer of intent between two intentional torts (only battery and
assault)
a. Intended to commit one tort, inadvertently committed another
i. Intent to commit an assault satisfies battery, and visa
versa
2. Transfer of intent between two people
a. Intended to commit tort against one person, inadvertently
committed it against another (intent follows the bullet)
b. For assault, In a crowded room, only people who were
reasonably apprehensive (objective)can sue
e. False Imprisonment
i. Intent
1. Confine person
ii. Conduct
1. Causing the confinement of another
f. Trespass
i. Intent
1. Enter, even if you think its your land

ii. Conduct
1. Entry onto the property of another
g. Trespass to chattels
i. Intent
1. Use or possess the chattel, even if you think its yours
ii. Conduct
1. Interference with the use or possession of chattel of another
h. Conversion
i. Intent
1. Use or posses the chattel (so as to destroy, or maybe depreciate)
ii. Conduct
1. Use so as to destroy the chattel of another
i. IIED
i. Intent
1. desire or ksc of inflicting emotional distress or recklessness
ii. Conduct
1. Outrageous and causes severe emotional distress
j. Defenses to Intentional Torts
i. Consent
1. 2 types
a. Express
i. Closely tied to contract law
ii. Written waivers
iii. Verbal waivers
b. Implied
i. Consent is implied from the plaintiffs actions (using
objective test of reasonableness)
ii. A reasonable person in the defendants shoes would have
the impression that consent was given
2. Withdrawal of consent
a. Did the plaintiff do something that a reasonable person would
recognize as a withdrawal of consent (objective std)
b. McQuiggan v. Boy Scouts of America
i. Boys shooting paper clips at eachother (game); plaintiff
was playing, then left and sat down
ii. Was later shot in eye
iii. Implied consent at question
1. Consent lasts as long as a reasonable person would
expect
2. OR, until it is withdrawn
a. Expressly withdrawn- I quit
b. Reasonable person test
i. A reasonable person in the
defendants shoes would have to
understand that the plaintiff had
withdrawn consent
3. Consents Limits
a. Boxers consent to a fistfight, not shooting each other
b. Rules of the game...
i. If outside rules of the game, not consented to
c. Defining scope of consent
i. Example 3, p. 54
1. Unforeseeable result, something within the rules of
the game?
2. You have to have consented to the injury (contact),
but not the harm/offense

3. Kids were just trying to get him into the lake

a. Conduct stayed within the rules of the game
ii. Hogan v. Tavzel
1. Woman has sex with estranged husband, Tavzel,
who knew he had genital warts and did not tell her
a. Prima facie case for battery
i. There was intent to make the contact
ii. There was contact that was harmful
(she contracted Gen. Warts)
2. Court says this was beyond the scope of her
consent
a. She consented to sex; no consent to sex
result in her contracting genital warts
3. Tavzells fraudulent concealment vitiated the
plaintiffs consent
a. Fraudulently induced as well
4. Mistake as to consent
a. Mistake as to the nature or quality of the
injury (more innocent)
iii. Richard v. Mangion
1. 2 boys have after school fight
a. Mangion probably the aggressor, but Richard
chose to show up for the fight
2. Because Richard showed up to fight, he gave
implied consent for the rules of the game
a. The rules of the game is a fist fight
b. Question whether mangion used excessive
force
i. Reasonable person standard
ii. level of force deemed reasonable by
court
d. Ways to vitiate consent
i. Injury is beyond the scope of the consent given
ii. Fraudulent concealment of a fact that would likely keep
plaintiff from consenting (tavzel)
iii. Consent was fraudulently induced (tavzel)
iv. Mistake about the nature and quality of the invasion
intended
ii. Defense of Self & Others
1. People have a right to protect themselves (corrective justice argument)
2. Deters the commission of harmful behavior, because they could get
hurt in return, and not be able to recover
3. When is self defense valid?
a. Person must have a reasonable belief that their conduct
was necessary to avoid the harm posed or threatened by
the plaintif
b. The defendant must have had the actual belief that their
conduct was necessary as well (no lying)
c. Why the reasonable belief part
i. Prevent hyper-sensitive people from using unnecessary
force
4. 2 ELEMENTS (need both!)
a. Belief that plaintiff posed a threat
b. Belief that defendants conduct was necessary
i. Defendant believed that the threat was reasonably
imminent (objective)

5.
6.

7.

8.
9.

1. If not imminent- GO TO POLICE

ii. AND, must have reasonable belief that the force used was
proportionate to the threat posed
1. Objective
a. Defendant must believe that the threat used
is proportionate to the threat (must be
objectively reasonable)
Deadly force
a. Force which is likely to cause death or serious bodily injury
Slayton v. McDonald
a. Boys argue on school bus, older one follows younger one home,
enters his house
b. Younger boy tries to retreat, warns that he will use force, shoots
other boy in leg
c. Self-Defense was accepted by court
i. Test: it is only necessary that the actor have grounds
which would lead a reasonable man to believe that the
employment of a dangerous weapon is necessary, and
that he actually so believes
ii. Court used factors below
iii. Illustrates how this type of force can be proportional
Factors for determining whether fear defendant had was reasonable
(from Slayton)
a. Character and reputation of attacker
b. Belligerence of attacker
c. Large difference in size and strength between the parties
d. An overt act by the attacker
e. Threats of serious bodily harm
f. Impossibility of peaceful retreat
Mistaken belief, provided that the belief was reasonable, may still allow
use of self-defense defense
Defense of Others
a. Assault on a 3rd party in defense of a family member is
privileged only if defendant had a well founded belief that an
assault was about to be committed by another on family
member...in no event may defendants action be in excess of the
privilege of self defense granted by law to the family member
b. Young v. Warren
i. Defendant shot and killed his daughters boyfriend who
was harassing her
ii. Force was excessive, since daughter and kids were not in
imminent danger
iii. Illustrates flip side of proportionality, b/c the threat was
not serious bodily harm, which is required to justify deadly
force in defense of another
iv. Should have asserted self-defense, might have worked
better...
c. ANALYSIS
i. Mini self-defense from POV of those being protected by
Defendant
1. Would the daughter have been justified in herself
using deadly force?
a. If so, then defense of another will work; if no,
then doesnt work
ii. ANOTHER APPROACH

1. Reasonable person... (never focuses on POV of

protected person)
10.Make My Day Laws
a. Colorados Statute (Colo. Rev. Stat. 18-1-704.5 (2006))
i. Occupant of the dwelling may use deadly force against
another
ii. When that person has made an unlawful entry into the
dwelling
iii. And when the occupant has a reasonable belief that such
person has committed a crime in the dwelling (in addition
to the uninvited entry)
1. Or is committing or intends to commit a crime
against a person or property (in addition to the
uninvited entry)
iv. AND, when the occupant reasonably believes that such
other person might use any physical force, no matter how
slight, against any occupant
b. Florida
i. Assumes reasonable fear when someone has unlawfully
entered your home
ii. Otherwise the same as Colorado
iii. Defense of Property
1. Must be proportional- usually never justifies much force. (objective
std.)
k. Intentional Infliction of Emotional Distress (IIED)
i. Protects an emotional or dignitary interest
ii. ELEMENTS
1. Intent
a. Desire or KSC to cause distress
b. OR recklessness
i. Most people would know of this risk...he probably did
too...subjective
ii. Conscious or deliberate disregard of substantial risk or
probability of causing injury
2. Conduct (2 requirements)
a. Outrageousness
i. Community centered
ii. The core of this tort (very important)
iii. If this is found to exist, it will bolster the other elements
iv. Objective test for outrageousness
1. An average member of the community would likely
consider whether the defendant knew that the
plaintiff was for some idiosyncratic reason,
particularly likely to suffer severe emotional
distress
2. To be outrageous, the conduct must be so extreme
in degree as to go beyond all possible bounds of
decency to be regarded as atrocious and utterly
intolerable in a civilized society
3. Restatement: (would cause an average member of
the community to arouse his resentment against
the actor and exclaim outrageous)
4. Factors of outrageousness
a. Some courts have said that one occurrence
is not enough (need more than one); others
say one is ok (if its bad enough)

b. Abuse of authority
i. Employers
c. Taking advantage of a peculiar sensitivity
(with knowledge of said sensitivity)
v. If defendant exploited an advantage, could strengthen
outrageousness
vi. If defendant knew of a peculiar susceptibility of plaintiff,
could strengthen outrageousness
vii. NOT OUTRAGEOUS
1. Mere insults, indignities, threats, annoyances, petty
oppressions, trivialities
b. Causes severe emotional distress
i. Severe emotional distress
1. Must be ACTUAL distress suffered by the plaintiff
2. Must be distress that a reasonable person would
experience (objective)
3. Minority view requires an expert opinion that the
distress was severe (to prevent fraud)
a. Courts have generally gotten over the risk of
fraudulent claims
i. No way to define the limits of the
claim (slippery slope)
ii. Worried about liability being
proportional to culpability
iii. Also suggested that there is a sex-bias
(women are more prone to emotional
distress, while men are more prone to
physical injury)
4. Majority view says that the outrageous nature of
the conduct vitiates the need for expert testimony
ii. Types of distress
1. Fright, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment,
worry, and nausea
a. Courts are less sympathetic to anger
iii. Recklessness
1. A conscious disregard of a substantial probability that your conduct will
cause (whatever the tort is about) i.e., severe emotional distress to
plaintiff
a. Awareness- must be aware of the risk
b. High Probability of causing the emotional distress
c. Underestimating the risk CAN be recklessness
iv. Native American Mascot Example
1. Type of harm
a. Their existence despite the protests
b. Reminder of genocide
i. Violent imagery justifies both their existence as mascots
and the genocides which occurred early in history
2. Intent
a. Lots of complaints; the schools certainly have notice to know
this is offensive to some
3. Severe Distress
a. Outrageousness
i. Depends on definition of community...
4. Schools have knowledge of the peculiar sensitivity!
a. That lowers the requirements of intent and outrageousness

l.

Trespass & Necessity

i. Necessity
1. The reasonable belief that (intentional tort) was necessary to prevent
serious harm to person or property of self or other
a. Generally used in defense of property torts
i. May be raised by D as a defense
ii. May also be raised by a plaintiff
b. Some courts require that the harm be imminent
c. Some require that there were no other alternative actions to
prevent harm
d. Reasonable belief refers to an objective test
2. Actor must properly weigh costs and benefits
a. The interests you are protecting must be more
important/valuable than those you are invading
3. This is an incomplete privilege
a. When using this defense, you have to pay compensatory
damages
b. Why?
i. Defendant has benefitted at plaintiffs expense (corrective
justice)
1. Vincent v. Lake Erie Transportation Co.
a. Boat owner saved boat by damaging dock
ii. It is important to discourage people from acting in
necessity when it is not reasonable (Instrumental)
1. Create incentive for people to actually make a costbenefit analysis
iii. Counter Arg
1. This rule is a disincentive for people to act
properly...
2. Also instrumental arg.
4. Ploof v. Putnam
a. Man ties up boat during a storm at a private dock; Dock owner
unties boat which then drifts and is damaged on shore
b. Boat owner sued for damage caused to boat
i. Claimed he was not trespassing because of necessity
5. Marty v. State of Idaho
a. Ps property damaged by D going onto his land to stop flood
b. PUBLIC NECESSITY:
i. One is privileged to enter land in the possession of
another if it is, or if the actor reasonably believes
(subjective) it to be, necessary for the purpose of averting
an imminent public disaster
ii. Plaintiff lost here.
3. Negligence
a. Making the prima facie case: 4 elements
i. Duty
1. Reasonable person standard (objective std.)
ii. Breach
1. Sometimes people call this negligent
2. Some say this is a mixed question of law and fact
a. Judge decides what the standard was
b. Jury decides whether the standard was met
iii. Causation
iv. Harm
b. Reasonable Person Standard
i. A reasonable person would have known of the risk (it was a foreseeable risk)

ii. What would a reasonable person do under those circumstances?

1. We often mean physical traits/disabilities
a. Courts will allow a physical disability to be included in the jurys
interpretation of the standard
2. Dangerous instrumentalities
a. Reasonable person dealing with dynamite; driving truck full of
gasoline
b. Plaintiffs have tried to use this to raise the duty of care (some
have been successful)
i. Extraordinary care standard vs. reasonable care standard
3. Emergencies
a. Common for courts to adjust the standard, instructing the jury to
consider how a reasonable person in an emergency would have
acted.
4. Knowledge
a. Juries may not consider what the defendant knew when
determining what a reasonable person would have done
5. Expert knowledge
a. If a person has expert knowledge, they must act as a reasonable
expert in that field would have (may create a higher standard)
6. Mental traits
a. Treated differently than physical traits
b. This works like general knowledge- average traits and even
severe mental illness cannot be considered (controversial, but
still the rule right now)
c. This stance reflects:
i. Worries about fraud
ii. Worries about slippery slopes
7. Age
a. Reasonable child of like age, intelligence, and experience is
applied to children.
b. Exception: the activity is an adult activity, exception doesnt
apply
i. Adults do or dangerous activity or both
iii. A reasonable person would have avoided the risk
1. Industry practices can play a role here
a. Water main case
i. If industry practice is to bury 5 feet down and it was only
buried 3 feet down, would strongly indicate negligence
iv. Calabresi on the Reasonable Person Standard
1. The standard is not a reasonable person but a reasonable man
2. The standard ought to be more egalitarian, inclusive standard
3. Problems- where do we stop? How subjectivized must the standard be?
v. Why reject the subjective standard?
1. Gives a break to those who are less careful
2. Allows us to implement societys ideal types of conduct-Instrumental
vi. Judge Learned Hand Formula
1. If B < P * L, then the person is negligent where:
a. B is the burden of preventing or avoiding the risk
i. Cost of stopping conduct or cost of precautions to
defendant
ii. Considers the utility of the defendants conduct
1. How valuable is this activity to society
b. P is the probability of loss
i. Probability of injury occurring if activity is not stopped
c. L is the magnitude of loss

i. Usually just the injury sustained

ii. But, could include other risks that could have but didnt
occur
d. If B > P * L, then there is no negligence (under this formula) and
plaintiffs will lose.
i. It is better for society to do X even though some people
will suffer injury
ii. This is utilitarian in the extreme!
2. Problems with the test
a. People dont necessarily weigh costs and benefits as a
corporation might
i. People are not always rational maximizers
b. How do we measure damages?
i. Dollars?
ii. Social Costs?
3. McCarty v. Pheasant Run, Inc. p. 95
a. Woman assaulted in her hotel room
b. She sues hotel for not locking the sliding glass door
c. Jury decided the hotel acted reasonably
d. Woman files for JNOV and is denied
i. She didnt introduce any info regarding costs that would
have helped calculate B, the burden of precautions.
4. Application of the formula
a. Many courts use it, but not as rigidly as Pozner.
b. Used to illustrate how the jury ought to think as opposed to a
formula that has a mathematical answer.
vii. Cost-Benefit Analysis
1. Some risks are not worth preventing
a. Driving a car is dangerous, but its benefit to society is greater
2. Tortfeasors are made to pay damages to deter people from committing
torts.
a. What if you are rich?
viii. Professional Standard
1. In Professional negligence cases, custom is the standard
a. Compliance with the standards of your profession means no
negligence
2. What is considered when defining a profession?
a. Jury knowledge
i. Case matter too complicated for reasonable person
b. Profit motive
i. Professionals take an oath, are expected act in clients
best interests
c. Professions self-regulate
i. Should they be allowed to set their own standards?
3. Professional Standard is a MANDATORY standard
a. If the defendant followed the custom, theyre not liable
i. Here, jury cannot second-guess the standard of a
profession
4. Osborn v. Irwin Memorial Blood Bank p. 417
a. child contracts HIV from a blood transfusion, parents sue blood
bank
b. trial court granted defendant a JNOV
c. DID PROFESSIONAL STANDARD APPLY HERE? NO.
5. Nowatske v. Osterloh p. 423
a. Man goes blind after surgery, sues physician

b. Physician held to standard of a reasonable specialist in his

position
6. Rossell v. Volkswagen of America p. 426
a. Car manufacturer held not to be professional
i. Professionals
1. Take an oath
2. Motivated by care for clients
3. Not just making a buck
7. Doctors, lawyers, accountants...
8. Informed Consent
a. Breach of duty to obtain informed consent
i. A form of professional malpractice (usually medical)
b. If NO consent, Battery
c. Conduct exceeded scope of consent given
d. Patients have a right to refuse treatment
i. Clouds up with children and mentally ill
e. Common scenario
i. Physician doesnt give patient all information on risks
related to a procedure
1. Did the physician adequately inform the patient of
the risks? (if no, = negligence)
f. Physicians need to tell patients about all material risks, benefits,
and alternatives
i. What is material? Significant, relevant, etc.?
g. There is a tension between personal autonomy and medical
efficiency
h. 2 different standards a court may employ:
i. Reasonable Physician (majority rule)
ii. Reasonable Patient (minority rule)
1. Canterbury (prudent patient)
a. Would a reasonable patient have refused
treatment had they known X information?
(and that the patient in question would have
refused treatment)
b. If they would not have refused treatment or
acted differently, they cannot recover
(causation rule)
c. How to measure causation? 2 part test
i. Must show that patient would have
made a different decision
ii. Must also show that a reasonable
patient would have also made the
same decision
i. Exceptions:
i. There is a limitation on what doctors must tell people
1. The therapeutic privilege
a. If the physician thinks telling the patient X
info would harm them, they dont have to be
told
ii. There is also an exception for emergencies
1. Sometimes no time or way to get informed consent,
so doctors may do what is necessary
j. Largey v. Rothman p. 439
i. Breast biopsy has adverse effects that the doctor didnt
tell the patient about

ii. The court discussed proximate cause, but in this case

there was no but-for causation either
1. This case employs the prudent patient (minority)
rule
2. Causation: If they had been informed, they would
have acted differently (applies to both minority and
majority rule)
4. Recklessness
a. When someone has a conscious awareness of a high probability of causing serious
harm and acts anyways.
i. 3 variations, no majority rule
1. Conscious awareness (original standard)
2. Reasonably apparent risk
3. Knowledge of facts that make the risk obvious
a. Policy concerns with the last 2 questions
i. Defendant is lying that they didnt know about the risk
b. Recklessness requires higher culpability
i. You must actually have foreseen or been consciously aware of a high
probability that your conduct will cause serious harm
ii. What does high probability of serious harm mean?
iii. What about a substantial risk of causing serious harm?
1. They mean the same thing
2. Must be a big P and a big L
3. If the B is MUCH smaller than PL, there is recklessness
iv. Sandler v. Commonwealth p. 129
1. Suit against state of Massachusetts
2. Man riding bike through tunnel crashes into hidden drain with missing
cover
3. Vicarious liability
a. When you are held liable for the conduct of another
b. Employer-employee relationship most common in vicarious
liability
i. If employee was reckless, employer is liable
4. There was a statute preventing suits against the state for negligence
for people injured in recreational use of government property (without
a fee)
a. Recreational use statute
5. Judge used words "unreasonable risk," which hints at reasonable
person standard-> negligence
a. This makes it easier to prove recklessness!
b. Must only know facts from which a reasonable person would
conclude there was a risk.
6. Court says there was no recklessness here.
a. There was knowledge, but no risk of serious harm
i. Think of the Learned Hand test
1. b>pl liability
2. To get a high P, plaintiff will probably have to show
that someone was previously injured
c. STRICT LIABILITY
i. Respondeat superior
1. "let the master respond"
2. Employee must commit the negligent act while employed
3. Must prove
a. Employer-employee relationship
b. Must prove that employee committed a tort

i. Elements of tort analysis

c. Employee was acting within the scope of their employment
ii. Van Gordon v. Portland Electric Co. p. 132
1. Hot springs in river park
2. Were warning signs at front entrance only, kid goes in gets badly
burned
3. B is the cost of signs at second entrance
4. L is the danger of the hot water- probably severe
5. P is the risk of someone coming in the back entrance and getting
burned
a. Did PGE have awareness of the risk?
i. This was a real secondary entrance, so people would
come in
ii. The picnic tables, signs on the other side, and open
second entrance show knowledge of facts that make the
risk obvious
iii. Negligence Per Se
1. (MAJORITY RULE) If plaintiff can prove that defendant violated a
relevant statute, that is conclusive evidence of duty and breach.
a. Conclusive means that if the jury finds that they violated the
statute, they must find liability
2. Elements
a. Statute sets standard of care
b. Plaintiff is in class of people the statute was designed to protect
c. The harm plaintiff suffered is the sort the statute was enacted to
prevent
3. Martin v. Herzog
a. Car collided with unlit buggy at dusk
b. NY had statute requiring lights on vehicles after dusk
c. Elemental analysis:
i. Statute? Yes, it establishes a clear standard of care to
protect people
ii. Statute intended to protect highway travelers from
accidents on the highway
iii. There was an accident on the highway, as the statute
sought to prevent
iv. THERE COULD BE NPS
1. Must still prove that they violated the statute
4. Thomas v. McDonald
a. Plaintiff collided with a truck that stalled on the road
b. 2 statutes:
i. Truckers are required to display flares when the break
down
ii. Truckers are required to carry flares hour before dark
1. This argument slips because the plaintiff didnt
prove what time dark was (should have used a
farmers almanac)
iii. Court adds a 10-minute window to display (this is called
judicial gloss on the statute)
1. If judicial gloss has existed for a while and
legislature has not acted contrary, it merges with
the legislatures intent
5. Wawansea Mutual Ins. Co. V. Matlock
a. One boy buys cigarettes, gives to younger boy who then starts a
fire by accident

b. Statute banning this

i. Court says the statute was not designed to prevent fires;
it was designed to prevent youth from smoking
6. Prima facie case- violation creates a rebuttable presumption that the
defendant failed to use reasonable care (defendant may rebut with a
defense to bring case to jury)
7. Licensing statutes dont work because they dont set standard of
care, can help prove breach depending on requirements, but not
conclusive
8. NPS Excuses
a. Due diligence
b. Lack of notice (of violation)
i. Deck case (Sykora v. Wenzel)
ii. if the actor neither knows or should know (reasonable
person); without notice of the violation, violation is not
conclusive evidence
c. Impossibility
d. Safety considerations
e. NOTE: approaches to NPS
i. NPS is conclusive, violation = duty and breach (majority
approach)
ii. In a case where a court uses the conclusive approach
means that whenever an excuse is presented in a
situation where a directed verdict for the plaintiff would
be granted, the case goes to the jury
iii. Some courts say that violation of a statute is SOME
EVIDENCE of negligence, sends case to jury
iv. Industry Custom
1. Industry customs have a similar effect to a statute, but are less
conclusive- the jury WILL get to decide
a. There could be an unreasonable custom- too high or too low; the
jury will decide whether negligence exists
2. T.J. Hooper
a. Barge sinks in storm, didnt have a weather radio on board
(despite low cost)
b. Court said that though it was custom not to have a radio, that
the custom was unreasonable
i. This is an indirect form of judicial regulation
ii. Justifications for imposing this indirect regulation on
industry standards
1. Too important to leave to market
3. Elledge v. Richland/Lexington School District Five
a. Girl hurt on modified playground equipment
b. Plaintiffs try to bring in industry standards as evidence of the
standard of care: trial court said that since district had not
adopted the standards they didnt apply
c. Appellate court reversed, stating that standards could be used
to indicate a standard of care
d. Arguments about transaction costs
i. Imperfect info available to consumers
ii. Monopoly
iii. Unequal bargaining power
e. Wal-Mart v. Wright
i. Plaintiff wanted jury instruction that employee manual
was a representation of the duty of care that Wal-Mart
thinks is reasonable

1. Court says no way; Wal-Mart set a standard they

considered above reasonable care
a. Dont want to discourage companies from
setting high standards for themselves
ii. YOU CAN USE EMPLOYEE MANUALS TO SHOW
KNOWLEDGE OF THE RISK
1. Not for evidence of industry custom- leads to
subjective std.
v. Res Ipsa Loquitur
1. the thing speaks for itself
2. When a plaintiff relies on this doctrine, the jury will be allowed to
conclude that the defendant was negligent even though the plaintiff
may not have introduced detailed or direct evidence about the precise
shortcomings of the defendants actions.
3. A defendant could use res ipsa loquitur to assert comparative
negligence
4. Basically, you cant use res ipsa when you have evidence
5. Some courts will let you plead res ipsa in the alternative
6. Elements (Modern test)
a. These kinds of accidents are usually the result of negligence
b. The instrumentality that caused the accident was in the
defendants (sometimes exclusive) control.
7. Another test (Rest. 3d)
a. Ordinarily happens b/c of negligence
b. Defendant is in the class of members whose negligence usually
causes the injury
c. Alternate 2nd question- whether defendant had a duty to take
reasonable care
8. Byrne v. Boadle
a. Barrel rolls out window of warehouse, hits pedestrian
b. Plaintiff had no evidence proving negligence
c. Court said there was enough circumstantial evidence to feel
comfortable saying that there was negligence
i. Allows plaintiff to avoid a directed verdict
ii. Plaintiff gets a jury instruction telling the jury that they
can find the defendant negligent, even though there is no
direct evidence; they can infer negligence from the facts
presented
9. Shull v. B.F. Goodrich
a. Dock plate malfunctions, injures truck driver
b. Trial evidence showed that the malfunction showed that the
product was either defective or improperly maintained
c. Standard of proof
i. Plaintiff is not required to eliminate with certainty all other
possible causes or inferences, which would mean that he
must prove a civil case beyond a reasonable doubt.
ii. All that is needed is evidence from which reasonable men
can say that on the whole it is more likely that there was
negligence associated with the cause of the event than
that there was not
d. Exclusive control?
i. Defendant owned the building since before device was
installed
ii. Defendant always did maintenance
e. Contributory Negligence?
i. The plaintiff knew dock-plate was malfunctioning

ii. Old test:

1. Contained element requiring that the plaintiff had
made no causal contribution to the harm
2. Under this test, if the plaintiff was negligent in the
least, then no damages
iii. Modern test (comparative negligence)
1. Can still use res ipsa
2. Only can be thrown out if P was solely responsible
for his injuries
10.Dover Elevator v. Swann
a. Man injured in elevator malfunction
b. Court denied res ipsa loquitur jury instruction
i. Plaintiff presented too much evidence, enough to prove
negligence
ii. Res ipsa is like a judicial dispensation, only granted to
those who need it! CONSIDER THIS ON A TEST: IF TOO
MUCH EVIDENCE, CANNOT USE RES IPSA LOQUITUR!!!
5. Causation
i. Not just an element of negligence; many torts have causation requirements
b. Cause In Fact
i. Was there a connection between defendants conduct and plaintiffs injury?
ii. But-for test
1. The standard
2. But-for the defendants conduct, the incident would not have
happened...
3. Multiple Insufficient Causes (subcategory of but-for)(these already
fulfill but-for)
a. Cause 1 (parents know sitter hits, hire anyway)->
b. Cause 2 (sitter hits)->
i. Then run proximate cause analysis.
1. If one fails, the other is the proximate cause; if both
pass, then they are jointly and severally liable
iii. Alternatives to But-for (for when you cant find but-for causation)
1. Multiple sufficient causes
a. Use if you have multiple causes, either of which would have
been sufficient to create the injury
i. Each of the acts that were independently sufficient to
produce the harm must have been tortious for the plaintiff
to avoid the harsh result of the but-for test
ii. Any defendant whose tortious act was independently
sufficient to cause the plaintiffs harm may be liable even
if other independently sufficient acts were innocent.
b. Once plaintiff demonstrates that each of the defendants acts
were a) negligent, and b) would have been sufficient to cause
the harm, each defendant must prove its act was not a
proximate cause(substantial factor) in producing the harm
i. The burden shifts to the defendants to prove that they
were not liable
ii. MUST STILL DO SUBSTANTIAL FACTOR TEST
c. Kingston v. Chicago & Northwestern Railway Co.
i. Ps property destroyed by fire; fire began as two separate
fires, one started by railroad, the other of unknown origin
ii. Court said that just because the 2nd party could not be
determined didnt mean that the railroad, who had
obviously acted negligently, could escape liability at the
expense of an innocent bystander

1. Railroad was held fully liable

a. Any one of two or more joint tortfeasors or
one of two or more wrongdoers whose
concurring acts of negligence result in injury,
are each individually responsible for the
entire damage resulting from their joint or
concurrent acts of negligence
iii. Had the second fire occurred because of natural causes,
the defendant would not have been liable...
1. Substantial Factor test
d. If two forces are actively operating, one because of the
actors negligence, the other not because of any
misconduct on his part, and each of itself is sufficient
to bring about harm to another, the actors negligence
may be found to be a substantial factor in bringing it
about (Rest. 2d. 433(2))
i. The number of other factors which
contribute in producing the harm and
the extent of the effect which they
have in producing it
ii. Whether the actors conduct has
created a force or series of forces
which are in continuous and active
operation up to the time of the harm,
or has created a situation harmless
unless acted upon by other forces for
which the actor is not responsible
iii. Lapse of time
e. Brisboy v. Fibreboard Paper Products Corp
i. Man dies of lung cancer
1. Worked with asbestos for 26 years and
smoked for 30 years
ii. There may be more than one proximate cause of
an injury, and thus the mere fact that some
other cause concurs, contributes, or cooperates
to produce an injury does not relieve any of the
parties whose negligent conduct was one of the
causes of the plaintiffs harm
1. Smoking might have caused the cancer,
but the court used the substantial factor
test
a. Ruled that asbestos was a
substantial factor in his death,
since even a single instance of
exposure could lead to fatal
cancer...
2. Substantial factor test can limit an actors
liability; but when there are multiple
substantial factors, those defendants can
be held liable
3. This is the minority test
2. Concert of action
i. Often applies to drag-racing cases
b. Two defendants act together, both breaching duty of care
c. But only one of them was directly responsible for plaintiffs injury

i. All those who, in pursuance of a common law plan or

design to commit a tortious act, actively take part in it, or
further it by cooperation or request, or who lend aid or
encouragement to the wrongdoer, or ratify and adopt the
wrongdoers acts done for their benefit, are equally liable
d. Restatement 2d 876
i. For harm resulting to a third person from the tortious
conduct of another, one is subject to liability if he
1. Does a tortious act in concert with the other or
pursuant to a common design with him, or
2. Knows that the others conduct constitutes a
breach of duty and gives substantial assistance or
encouragement to the other so to conduct himself,
or
3. Gives substantial assistance to the other in
accomplishing a tortious result and his own
conduct, separately considered, constitutes a
breach of duty to the third person
a. 5 factors to consider for substantial
assistance
i. The nature of the wrongful act
ii. The kind and amount of assistance
iii. The relation of the defendant and the
actor
iv. The presence or absence of the
defendant at the occurrence of the
wrongful act
v. The defendants state of mind
e. Shinn v. Allen
i. Two drunk men in a car crash into a husband and wife in
their car, killing the husband and injuring the wife
ii. Wife sues passenger under the concert of action theory
iii. Court considered five factors from restatement, but didnt
find enough evidence
3. Alternative liability
a. Shifts burden to the defendants b/c they are in a position of
having more info as to who is liable
b. ELEMENTS
i. Each defendant was negligent
1. This justifies shifting the burden to defendants,
since theyve already been proven negligent.
ii. Only one of them caused the injury
iii. Unknown which one caused it
iv. (sometimes) defendants have access to info (most courts
dont require)
v. NOTE: If court finds these elements exist for both Ds,
defendants can be held joint and severally liable
1. Plaintiff can collect the entire damages from either
defendant; leaves the defendants to sue one
another for contribution
c. Summers v. Tice
i. 2 hunters shoot, unknown which shot hit the plaintiff
d. Burke v. Schaffner
i. Dog bite case
4. Market Share Liability
a. Designed to hold manufacturers of fungible goods liable

i. Cant determine which manufacturers product was

responsible
b. Sindell
i. DES (drug) case
ii. Manufacturers eventually determined that it created risk
of birth defects, and cervical cancer later in life
iii. They kept selling the drugs even AFTER the discovery that
the drug was ineffective and dangerous
iv. Plaintiffs had to show (ELEMENTS)
1. Equivalent acts of negligence or defective product
sale
2. Not possible to show which one caused
3. P must sue a Substantial share of Ds
v. RESULT:
1. Burden of proof shifts to defendants
2. Liability is based on each defendants market share
c. Hymowitz
i. Defendants are not allowed to disprove their causation!
(Since we are holding people liable based on the
proportion of the risk they caused, based on market
share, allowing defendants to avoid liability by disproving
causation is unfair!)
ii. Defendants are only liable for the market share of these
defendants, not 100% of the market
iii. Criticism: windfall for the defendants because they
created the risk...
iv. Doesnt require a substantial share of defendants to be in
the lawsuit
1. Makes it easier for plaintiffs to recover
2. Singles out bigger companies
d. IN OPERATION
i. Under Sindell (joint and severally liable)
1. If defendant 1 has 50% market share and
defendant 2 has 25% market share, and damages
of $100,000, D1 will pay $66,666 and D2 will pay
$33,333
ii. Under Hymowitz, (severally liable)
1. (SAME FACTS AS ABOVE) D1 would pay $50,000
and D2 would pay $25,000 (plaintiff suffers loss of
$25k)
e. Args in favor of Market Share Liability
i. The idea is that in the end, each company will be held
liable for their fair share of the risk they caused
ii. Courts are ok with this because all defendants were
negligent
iii. Negligence of the defendants often contributed to the lack
of plaintiffs information on causation
iv. AGAINST: we must tie defendants conduct to plaintiffs
injury
5. Lost Chance/increased risk
a. Tries to compensate plaintiff for the loss of a chance of recovery
vs. increased risk of future injury
b. Lord v. Lovett
i. Woman injured in car accident sues for malpractice; her
expert says that had she received proper care, she would

have had an opportunity for substantially better recovery

(she had a spinal cord injury)
ii. Any causal link between Ds negligence and Ps lost
opportunity is compensable
iii. Lost Chance: cases where to begin with, P had a less
than 51% chance of recovery
iv. Traditional Rule: no recovery in loss of chance cases
v. Majority Rule: To recognize loss of chance and to allow
recovery based on the % of chance that was lost. (% *
value of recovery)
c. Factors to consider:
i. What the court identifies as the compensable harm
ii. What the plaintiff must prove
iii. What damages are awarded
d. Independent cause of injury thats >50% responsible (courts
require negligence to be substantial, or greater than 50%)
i. Defs negligence increased risk of injury substantially
ii. 50% refers to a patient who has a pre-existing injury or
condition that is more than 50% likely to cause
injury...Loss of chance is a 40% chance of recovery
knocked down to a 20% chance
e. Future Consequences
1. For example; anxiety, lifestyle changes that are
created by the increased risk of future injury
ii. (traditional test) you can recover for future consequences
if they are reasonably certain to happen
iii. (new test) substantial chance
1. % increase doesnt need to be substantial
c. Proximate Cause
1. Determine whether connection between ds conduct and ps injury is sufficient to
support liability
2. Usually a question of fact for jury
d. Palsgraf v. LIRR
i. Andrews- you owe a duty to the world at large for the consequences of your
conduct
1. Use duty to prevent limitless liability
ii. Cardozo- plaintiff must be someone who could be foreseeably injured by the
defendants conduct; the injury must also have been a foreseeable injury
iii. Duty is relational you only have a duty to protect foreseeable plaintifs
from foreseeable injuries
iv. Directness
1. Defendants conduct that is a cause-in-fact of a plaintiffs harm is a proximate
cause if there are no intervening forces between the defendants act and the
plaintiffs harm
a. Intervening act must be sufficiently strong to wipe out first actors liability
2. In Re An Arbitration Between Polemis and Furness, Withy & Co. Ltd.
a. While unloading ship, a board falls, creating a spark, igniting gas fumes
and destroying the ship
b. Court said fire was directly caused by the falling board
c. It was reasonably foreseeable that the falling board would cause injury or
damage (though not of the type that occurred)
d. Court said workers were negligent in letting board fall
i. Given the breach of duty which constitutes the negligence, and
given the damages as a direct result of that negligence, the
anticipations of the person whose negligent act has produced the
damage appear to me to be irrelevant

ii. If the act would or might probably cause damage, the fact that the
damage it in fact causes is not the exact kind of damage one would
expect is immaterial, so long as the damage is in fact directly
traceable to the negligent act, and not due to the operation of
independent causes having no connection with the negligent act,
except that they could not avoid its results
3. Laureano v. Louzoun
a. Hot water goes out in apartment, woman trying to heat water accidentally
spills boiling water on herself, causing injuries
b. The court said that while the defendants conduct gave rise to the
plaintiffs attempt to provide a substitute supply of heat, the act of boiling
water was not the direct cause of the injuries
i. Those injuries would not have resulted from the failure to supply hot
water alone, and cannot be classified as injuries normally to have
been expected to ensue from the landlords conduct
c. Landlord inspired the accident, but didnt cause it
d. Plaintiffs banging pots together was an intervening cause that was the
actual cause of the injury
v. Foreseeability (majority rule)
1. A cause-in-fact is a proximate cause if the plaintiffs harm was reasonably
foreseeable
2. When a defendants conduct is a cause in fact of a plaintiffs harm, the
foreseeability approach treats the conduct as a proximate cause of the harm if
the possibility of that harm was within the range of risks that supported the
original characterization of the defendants conduct as negligent.
a. Plaintiff must prove that the harm that occurred was WITHIN the risk
created
i. If youre the defendant, you need to define the risk created
narrowly
3. Two types of foreseeability
a. Foreseeability of plaintiff (Duty)
b. Foreseeability of injury
i. Only general type of injury must be foreseeable, not the exact
manner of the injury
4. Courts often rule that tortious and illegal conduct is unforeseeable...
5. Tieder v. Little
a. A woman was killed when she was pinned between a car and a wall, the
wall collapsing on top of her
i. Experts testified that the walls collapse was probably what killed
her
b. To prove breach:
i. Make a negligence per se argument
1. Building codes are safety statutes; plaintiff is in the protected
class; the injury is of the type the statute seeks to prevent
c. It is not necessary, however, that the defendant foresee the exact
sequence of events which led to the accident sued upon; it is only
necessary that the general type of accident which has occurred was within
the scope of the danger created by the defendants negligence
d. The collapse of a brick wall resulting in the death of a person near
such wall is plainly a reasonably foreseeable consequence of
negligently designing and constructing such a wall without
adequate supports in violation of applicable building codes- even though
the exact sequence of events leading to the collapse of the wall...may
have been entirely unforeseeable
6. McCain v. Florida Power Corporation

a. Man is injured while using a motorized trencher when it struck an

underground power line (he was found 30% negligent)
b. The lines had been located by the power company and he was digging in
the safe area
c. The court divided foreseeability into two aspects
i. The duty element of negligence focuses on whether the defendants
conduct foreseeably created a broader zone of risk that poses a
general harm to others
ii. The proximate cause element is concerned with whether and to
what extent the defendants conduct foreseeably and substantially
caused the specific injury that actually occurred
d. it is immaterial that the defendant could not foresee the precise manner
in which the injury occurred or its exact extent
e. Even though the court said that we use general foreseeability for duty and
more specific foreseeability for proximate cause, its still sort of general
7. Techniques for arguing foreseeability
a. WAS foreseeable: describe risk broadly and generally
i. Describe as one single event
b. WAS NOT foreseeable: describe risk narrowly and with particularity
i. Try to break into many steps
vi. Substantial Factor test
1. Treats a defendants conduct as a proximate cause of the plaintiffs harm if the
conduct is important enough, compared to other cause of harm, to justify liability
2. Factors
a. The number of other factors which contribute in producing the harm and
the extent of the effect which they have in producing it
b. Whether the actors conduct has created a force or series of forces which
are in continuous and active operation up to the time of the harm, or has
created a situation harmless unless acted upon by other forces for which
the actor is not responsible
c. Lapse of time
e. Can be more than one proximate cause here...
6. Intervening and Superseding forces
a. Intervening and superseding
i. Vitiates liability under directness, also under foreseeability and substantial
factor
b. Intervening alone:
i. May vitiate liability under directness alone. Not guaranteed.
ii. Eggshell plaintiff
1. Tortfeasor must accept their victim as they find them
a. What kind of vulnerabilities will courts consider?
i. Physical vulnerabilities are usually OK
ii. Psychological vulnerabilities are less clear
2. Because defendant caused the injury, it is unfair to make the plaintiff pay
because they suffered a more severe injury
3. Shabby Millionaire-even if a person looks poor but is really wealthy, defendants
can be held liable for their higher wage potential, even though they looked poor.
4. Operates on Causation ONLY
a. Must still prove duty and breach
5. Available in all jurisdictions regardless of which proximate cause test is used
6. Schafer v. Hoffman
7. Petition of Kinsman Transit Co.
a. Barges on the Buffalo River cause damage (multiple negligent parties)
b. Foreseeability can be quite limitless as well
i. The court said this crazy scenario was foreseeable

c. If the connection between ps injury and d is direct, they will be liable

(directness test)
i. If direct connection exists but is unforeseeable, it must be due to
the same physical forces that produced the original duty to use
care, and of the same general type that was originally risked
d. Dock owner:
i. They knew the river, the area, the size of the boat
ii. They should have known that if it got loose, it would cause at least
mass destruction, and that the boat could by itself dam the river
7. Defenses
a. Affirmative defenses (burden of proof on Defendant)
i. Contributory negligence (old approach, nobody really uses-too harsh)
1. Conduct by the plaintiff that contributed to the injury
2. if the plaintiff was negligent in any way at all, the case was thrown out
3. to prove plaintiffs negligence, you must still prove the elements of
negligence
a. duty
i. plaintiff had a duty to use reasonable care to protect
himself...
b. breach
c. causation
d. harm
ii. Comparative negligence (newer approach)
1. Pure
a. Plaintiff may recover from defendant in proportion to their
negligence
b. If P is 95% liable and D is 5% liable, p may recover 5% of the
injury from D
c. Args against
i. Waste of courts time (systematic)
ii. Plaintiff shouldnt be able to recover if theyre the major
cause of their injury
2. Modified
a. 50% approach
i. Plaintiff may recover damages proportional to the
defendants negligence, so long as the plaintiff was not
more negligent than the defendant
ii. Plaintiff may recover so long as they are not more than
50% liable
b. 49% approach
i. Plaintiff may recover damages proportional to the
defendants negligence, so long as the defendant is more
negligent than the plaintiff
ii. If P is up to 49% liable, the can recover if 50% or more, no
recovery
3. Dobson v. Louisiana Power and Light Co.
a. Man is electrocuted by an unshielded power line, while trimming
a tree and using a metal-reinforced rope
b. Court focused on the burden of elimination of the danger (like
Hand test)
c. An actor with inferior capacity to avoid harm must expend more
effort to avoid a danger than need a person with superior ability
i. Since the power company had better knowledge of the
danger, their burden of avoiding the risk was lower and
their negligence thus higher

d. Courts have traditionally cited awareness of danger as a factor

distinguishing mere negligence from the higher state of
culpability known as reckless or willful and wanton conduct
4. Jensen v. Intermountain Health Care
a. Plaintiff was 46% negligent in his death, doctor was 18% and the
hospital 36%
b. UNIT RULE
i. You may add up defendants, and the sum of their
negligence is what the plaintiffs negligence is compared
to in modified jurisdictions
ii. Holds defendants to higher liability than they actually
created
iii. Assumption of the risk
1. Plaintiff agrees to accept the risks posed by ds conduct
2. Express Assumption of the Risk: when the parties expressly agree in
advance, either in writing or orally, that the plaintiff will relieve the
defendant of his legal duty toward the plaintiff
3. 2 types
a. Primary assumption of the risk
i. Goes to duty
b. Secondary assumption of the risk
i. Goes to causation
ii. Must prove (for secondary implied assumption of the risk)
1. Plaintiff had subjective actual knowledge of the risk
2. P had subjective actual appreciation of its nature
and extent
3. P voluntarily accepted the risk
4. Some jurisdictions require that it was objectively
unreasonable for p to accept said risk
4. Inherent risk test: risks the plaintiff wished to confront or they were
aware of, as in sports
5. Schroyer v. McNeal
a. Hotel parking lot is snowy, icy; woman requests room away from
shoveled (main) enterance
b. She knew the part of the parking lot she parked in was slippery
c. She slipped and fell
d. with full knowledge that the parking lot and sidewalk were ice
and snow covered and aware that the ice and snow were
slippery, McNeal voluntarily chose to park on the parking lot and
to walk across it and the sidewalk, thus indicating her
willingness to accept the risk and relieving the Schroyers of
responsibility for her safety
e. Court held as a matter of law that McNeal assumed the risk of
her injuries
6. UNREASONABLE IMPLED ASSUMPTION OF THE RISK
a. If plaintiff made an unreasonable implied assumption of the risk,
the majority of jurisdictions wont call it an assumption of the
risk at all, just comparative negligence
7. REASONABLE IMPLIED ASSUMPTION OF THE RISK
a. Some jurisdictions say that there is no defense b/c they acted
reasonably
b. Others say that the assumption of the risk was still voluntary,
and that damages will be reduced
8. Some ignore whether the assumption was reasonable (MINORITY RULE
ONLY!)

a. If p acted knowingly and voluntarily, recovery will be barred

regardless of whether the assumption was reasonable or not
8. Duty
1. Palsgraf v. LIRR
a. Andrews- you owe a duty to the world at large for the
consequences of your conduct
i. Use causation to prevent limitless liability
b. Cardozo- plaintiff must be someone who could be foreseeable
injured by the defendants conduct; the injury must also have
been a foreseeable injury
c. Duty is relational you only have a duty to protect
foreseeable plaintifs from foreseeable injuries
ii. We all have a duty to act with reasonable care
b. Duty limited by type of harm (usually emotional harm)
i. Initially courts would not recognize emotional harm alone; now some have,
and that number is growing, but still not a majority
ii. Emotional harms causing physical harms
1. Started with miscarriages caused by emotional harms created by
negligence
2. This may be a foreseeable injury
iii. Concerns:
1. Pretty hard for defendants to foresee emotional damage that causes
physical harm
2. Establishing that claim is genuine
iv. Robb v. Pennsylvania RR
1. Train hits womans car, she isnt injured; because of the fright of the
accident (which she was very close to), she sustained physical injuries
(emotional injuries caused physical injuries)
2. Where results, which are regarded as proper elements of recovery as a
consequence of physical injury, are proximately caused by fright due to
negligence, recovery by one in the immediate zone of physical risk
should be permitted (ZONE OF DANGER RULE)
a. This rule shows that you reasonably could have been harmedjustify fear?
v. Special relationship cases
1. James v. Lieb
a. Boy watches his sister get killed by a garbage truck, suffers
emotional damage
b. Guidelines from Dillon (California)
i. Whether plaintiff was located near the scene of the
accident as contrasted with one who was a distance away
from it
ii. Whether the shock resulted from a direct emotional
impact on the plaintiff from the sensory and
contemporaneous observance of the accident, as
contrasted with learning of the accident from others after
its occurrence
iii. Whether plaintiff and victim were closely related, as
contrasted with an absence of any relationship or the
presence of only a distant relationship
c. Court changes Dillon rule, adopting the following:
i. A plaintiff bystander has a cause of action for negligently
inflicted foreseeable emotional distress upon a showing of
marital or intimate familial relationship with a victim who
was seriously injured or killed as a result of the proven
negligence of a defendant

1. Foreseeable injury & follows closely

2. Death or serious injury to Victim
3. Marital or familial relationship to victim
2. Grotts v. Zahner
a. Woman watches her fiance get killed in car accident
b. Court bars recovery for emotional distress because she was not
related by blood or marriage to the deceased
c. The dissent says bullshit, it ought to be determined based on
intimacy of the relationship instead, and that juries are uniquely
equipped to determine the nature of that relationship
i. Non-married couples
ii. Gay couples
3. Rabideau v. City of Racine
a. Woman sues for emotional distress after watching a police
officer shoot and kill her dog, Dakota
b. Court wouldnt let her recover for various policy reasons
vi. SOME COURTS USE KENNY LOGGINS; SOME USE DILLON TYPE RULE
1. Middle ground between parasitic emotional distress, and pure
emotional harm
c. Duty to Rescue or Protect
1. Generally, you cannot be liable for a failure to act...
a. Misfeasance- defendant has created a new risk of harm to the
plaintiff
b. Nonfeasance- defendant has at least made Ps situation no
worse, and has merely failed to benefit him by interfering in his
affairs
i. Courts dont impose liability for Nonfeasance (except for
special relationships)
2. Unless you fall into certain categories
ii. Special Relationship between D and P
1. Traditional definitions
a. Parent-minor child
b. Employer-employee
c. Doctor-patient
d. Dangerous persons in the defendants custody
e. Those on the persons land or using their chattels
f. Control is what courts look at when determining what
constitutes a special relationship
i. Coach-player; teacher-student...
g. Duty to protect is imposed on the person in control because he
is in the best situation to provide a place of safety
i.
2. Emerich v. Philadelphia Center for Human Development
a. Man kills his ex-girlfriend after telling his psychiatrist that he was
going to kill her
b. Psychiatrist warns her to avoid her ex, but does not tell her her
life is in danger.
i. MAJORITY RULE:
1. When a therapist determines, or pursuant to the
standards of his profession should determine, that
his patient presents a serious danger of violence to
another, he incurs an obligation to use reasonable
care to protect the intended victim against such
danger
a. We hold that a mental health professional
only to the standard of care of his profession,

which takes into account the uncertainty of

such treatment
b. We will not hold a mental health professional
to be liable for a patients violent behavior
because he fails to predict such behavior
accurately
c. Court adopts Tarasof rule
i. Tarasof:
1. warning to the victim should be the least expansive
possible based on the circumstances (try to protect
confidentiality)
2. Requirements
a. The existence of a specific and immediate
threat of serious bodily injury to another
must have been communicated to the
professional...
b. The duty to warn will only arise where the
threat is made against a specifically
identified or readily identifiable victim
3. Rule:
a. Based upon the special relationship between
a mental health professional and his patient,
when the patient has communicated to the
professional a specific and immediate threat
of serious bodily injury against a specifically
identified or readily identifiable third party
and when the professional, determines, or
should determine under the standards of the
mental health profession that his patient
presents a serious danger of violence to a
third party, then the professional bears a
duty to exercise reasonable care to protect
by warning the third party against such a
danger
d. Therapist was not held liable b/c the warning he gave was
reasonably sufficient in light of confidentiality concerns
3. Bradshaw v. Daniel
a. Man dies from rocky mountain spotted fever, a non-contagious
disease; a couple weeks later, his widow also fell ill and died
from RMSF
b. Son sued alleging the doctor negligently failed to warn the
widow about her possible exposure to RMSF
c. Court said
i. While an actor is always bound to prevent his acts from
creating an unreasonable risk to others, he is under the
affirmative duty to act to prevent another from sustaining
harm only when certain socially recognized relations exist
which constitute the basis for such legal duty
ii. The relationship of a physician to his patient is sufficient
to support the duty to exercise reasonable care to protect
third parties against foreseeable risks arising from a
patients physical illness
1. Court cites various cases requiring doctors to treat
or warn 3rd parties in contact with a patient

d. Physician was held liable b/c he knew or SHK that the wife was
also at risk of contracting the disease and he should have
warned her but did not
4. Situations where there is a special relationship between defendant and
a 3rd party who injured the plaintiff
a. Defendant had some right or obligation to control 3 rd partys
behavior
i. Social host
1. Social hosts dont owe a duty to control 3rd parties
to protect others
a. No legal duty in these situations (no special
relationship)
i. Ex. A host of a dinner party and a
guest who drunk drives home
b. Host has no legal right to control drinking in
his house- no duty
c. Too much of a burden on host
d. The act of drinking made the guest liable
anyhow (some courts say this)
5. Landowner duty
a. Traditional
i. Trespasser
ii. Licensee
iii. Invitee
1. Invited onto land for own profit
b. Modern
i. General duty of reasonable care to everyone on your land
1. Protects trespassers
ii. 2 levels of duty
1. Low duty for trespassers
2. High duty for lawful entrants onto the land
c. Dykema v. Gus Macker Enterprises
i. Man attends outdoor basketball tourney, storm causes
tree limb to fall, injuring man.
ii. Sued claiming defendant had a duty to warn him about
the storm
1. Claimed under special relationship exception
a. Question: whether plaintiff entrusted himself
to the control and protection of defendant,
with a consequent loss of control to protect
himself
i. Balance social interests, severity
of risk, burden on defendant,
likelihood of occurrence,
relationship between parties
ii. Other factors: foreseeability of
harm, Ds ability to comply with
proposed duty, victims inability
to protect themselves, costs of
protecting, and whether p had
bestowed some economic benefit
on D
b. Court found no special relationship
i. P could leave whenever he wanted; he
could see the storm coming; there was
no business dealings creating a special

relationship (basically, he never

entrusted himself to the control and
protection of D)
d. Graff v. Beard
i. Man drives home drunk from house party, injures
motorcyclist, who sues the partys host for negligently
allowing the man to drink to intoxication and to drive
drunk
ii. Courts opinion
1. Although dram shop laws impose liability for this
sort of thing on 3rd parties supplying alcohol, it only
applies to commercial providers under certain
circumstances, and not to private parties under any
circumstance
2. In the absence of a relationship between the
parties giving rise to the right of control, one
person is under no legal duty to control the conduct
of another, even if there exists a practical ability to
do so
3. Given the ultimate power of guests to control their
own alcohol consumption and the absence of any
legal right of the host to control the guest, we find
the arguments for shifting legal responsibility from
the guest to the host, who merely makes the
alcohol available at a social gathering,
unconvincing
4. Common laws focus should remain on the drinker
as the person primarily responsible for his own
behavior and best able to avoid the foreseeable
risks of that behavior
iii. THIS IS THE MAJORITY VIEW ON THIS ISSUE
1. In jurisdictions that DO impose liability on this
issue, some proof of knowledge is required on the
part of the server.
a. Common approaches require proof that the
server knew or should have known that the
person was intoxicated or that the server
sold to or served a person who the server
knew or should have known would become
intoxicated.
e. Eisel v. Board of Education of Montgomery County
i. Girl told friends she was going to commit suicide; friends
told school counselors about the statements; when
counselors asked her about the statements she denied
them; counselors never called parents; girl commited
suicide
ii. Court said the counselors were negligently liable
1. School counselors have a duty to use reasonable
means to attempt to prevent a suicide when they
are on notice of a child or adolescent students
suicidal intent
2. Court considered a state law regarding suicide as a
way to determine the communitys intent on the
issue
a. The youth suicide prevention programs
provided for by the Act call for awareness of,

and response to, emotional warning signs,

thus evidencing a community sense that
there should be intervention based on
emotional indicia of suicide...
3. The consequence of the risk here was so great that
even a relatively remote possibility of suicide may
be enough to establish duty
4. The burden on the counselors was slight... a
telephone call, communicating information known
to the counselors, would have discharged their duty
d. Pure Economic Damages
i. You cannot recover for purely economic damages
ii. Generally, courts will not impose liability where defendants negligent
conduct has resulted in no physical harm but purely economic harms
(concerns about limitless liability)
iii. People Express Airlines v. Consolidated Rail Corp
1. Accident at Newark rail yard starts chemical fire, requiring evacuation
of vicinity, including Plaintiffs business
2. Sued for lost revenue
3. Court held
a. A defendant owes a duty of care to take reasonable measures to
avoid the risk of causing economic damages, aside from physical
injury, to particular plaintifs or plaintiffs comprising an
identifiable class with respect to whom defendant knows or has
reason to know are likely to suffer such damages from its
conduct
b. An identifiable class of plaintiffs must be particularly
foreseeable in terms of the type of persons or entities
comprising the class, the certainty of predictability of their
presence, the approximate numbers of those in the class, as well
as the type of economic expectations disrupted
c. A defendant who has breached his duty of care to avoid the risk
of economic injury to particularly foreseeable plaintifs may
be held liable for actual economic losses that are proximately
caused by its breach of duty
4. This position has not been widely accepted by courts
iv. 532 Madison Avenue Gourmet Foods v. Finlandia Center
1. NY building collapses during remodel, street is shut down for two
weeks
2. Neighboring businesses sue for lost profits
a. Argued that defendants owed them a duty to keep their
premises in reasonably safe condition, and that this duty
extends to protection against economic loss even in the absence
of personal injury or property damage
3. Court considered and dismissed People Express because many
plaintiffs who did suffer loss wouldnt be able to recover while others
could
4. Limiting the scope of the defendants duty to those who have, as a
result of these events, suffered personal injury or property damage- as
historically courts have done- affords a principled basis for reasonably
apportioning liability
5. D not held liable for Ps economic losses
6. Any plaintiffs that suffered property damage can recover; the others
cannot.
a. Economic damages must arise from some physical harm
e. Reproductive Negligence

f.

i. Wrongful birth
1. Parents claim that they would have aborted the pregnancy if they had
received accurate genetic or diagnostic information
2. Used to recover the additional costs that a disabled child costs to care
for
ii. Wrongful life
1. An action brought in the above circumstances by the child (I would be
better off not being born than being born as I am)
2. Also recovery for cost of care, but those extending beyond the age of
majority (care after age 18)
iii. Greco v. United States
1. Doctor failed to diagnose fetal deformities while P was pregnant; would
have provided opportunity for abortion
2. Causes of action
a. Wrongful birth
b. Wrongful life
3. Court says
a. A mother may maintain a medical malpractice action under
Nevada law based on her physicians failure to properly perform
or interpret prenatal examinations when that failure results in
the mother losing the opportunity to abort a severely deformed
fetus.
i. Greco should have been given the right to prove that she
has suffered and will continue to suffer damages in the
form of emotional or mental distress and that she has
incurred and will continue to incur extraordinary medical
and custodial care expenses associated with raising
Joshua
b. Declined to recognize wrongful life as a tort
i. Linked to Nevada law requiring parents of a disabled child
to care for them beyond the age of majority...(not all
states have this law, could effect outcome)
iv. No claim for wrongful pregnancy
1. You cant recover for a healthy child, even if you cant afford them.
v. Offset rule
1. Damages for emotional distress should be offset by the countervailing
emotional benefits attributable to the birth of the child. (not uniformly
adopted, just an example from Idaho) Harm Benefit = damages
a. Criticism: the usual joys of parenthood would often be
substantially overshadowed by the emotional trauma of caring
for the child in such a condition, so that application of the
benefit rule would appear inappropriate in this context.
Primary Assumption of the Risk
i. An alternative expression for the proposition that the defendant was not
negligent, that is, there was no duty owed or there was no breach of an
existing duty
ii. A type of argument a defendant may use to rebut a plaintiffs claim or
evidence of duty or breach
iii. Clover v. Snowbird Ski Resort
1. Woman injured when ski area employee jumped off a rise and collided
with her
2. She settled with the employee but sued Snowbird for negligent design
and maintenance of its ski runs
3. Court says
a. Ski law was a statutory enshrinement of primary assumption of
the risk

b. But, if an injury was caused by an unnecessary hazard, that

could have been eliminated by the use of ordinary care, the
hazard is not an inherent risk
i. Inherent risks
1. Those dangers that skiers wish to confront as
essential characteristics of the sport of skiing
a. Or those hazards skiers are aware of
2. Hazards that cannot be eliminated by the exercise
of ordinary care by the ski resort operator
c. Denied snowbirds motion for summary judgment
iv. Jones v. Three Rivers Management Corp
1. Woman is injured by a baseball while walking on an interior walkway at
a baseball game
2. Court ruled that the architectural design that allowed the accident to
happen was not an inherent element of the game of baseball, and
plaintiff could recover
3. No duty rules apply only to risks that are common, frequent, and
expected
4. Being hit by a fly ball is an inherent risk of baseball; but, being hit
while in a concourse is not an inherent risk
a. Court describes risk narrowly (fans in concourse) rather than
broadly (fans at a baseball game)