Relax. Pwn.

← TORTS OUTLINE
←
← I. Intentional Torts: developed from notions of trespass. Battery is trespass to my body.
← 1. Intent: Refers to the consequences of the act (RST §2). Ex: (pull trigger vs. bullet hit)
← Substantially certainty; reasonable person would/should have presumed consequences;
involuntary actions don’t count; (Brown v. Kendall). No insanity defense (McGuire).
← Intent does not have to be wrongful – Mohr v. Williams, doctor fixed diff ear, battery.
Transferred Intent: A defendant that shoots at A, intending to wound or kill A, and unforeseeably hits
B instead, is held liable to B for an intentional tort. “the intention follows the bullet”
← 2. Battery: harmful or offensive contact, resulting from an act intended to cause such a contact,
or apprehension that such contact is imminent (Rs.2d $13). Touching another in Anger – Cole v. Turner
* bodily/things attached with it(clothing,cane). D sets force in motion producing result – poisoned food.
* take P as you find him (egg-shell); Vosburg v. Putney – kick to shin = amputated leg.
← * liability extends to consequences not intended. Better for D to pay than innocent P - Vosburg
← * invasion of integrity – nominal damages. Punitive damages if intent real bad. See damages.
← * defenses –privileges; no intent; emergency; relationship b/t parties, surrounding
circumstances.
← 3. Assault: (RST §21): intent to either harm or put in apprehension of harm, and actual
apprehension;
← * victim must actually believe harm will result (reasonable person standard)* fear d/n = harm.
← * harm must be possible. Not just prepping; ability and opportunity to carry out threat
immediately.
← * transferred intent applies. Mere words not assault. Gesture will make assault. View
context.
← * recovery for fright, humiliation, & physical illness that may come from. D Substantially certain
fear.
← * if you weren’t an old man I’d knock you out – not assault. Condition negates it.
← 4. Trespass: intentional entry onto the real property of another. .intent applies to the act of
entry, not 5. False Imprisonment: protects personal interest in restraint from movement; thus ∏ must
be aware.

Intentional Torts 1
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* intent required; accidently locking ∏ in a room not F/I. Police can F/I if no authority to arrest.
← *against ∏’s will, voluntary presence not imprisonment. (Hardy v. LaBelle’s Distributing Co.)
← *Restraint - physical barriers; (implicit or real) threat of force; intimidation; Would RP feel
imprisoned?
← * claims have succeeded when freedom was surrendered voluntarily but b/c ∏’s property was
taken.
← * damage: time, discomfort, illness/injury, mental suf, interupt business, family’s time,
punitive(maybe)
← 6. Intentional infliction of emotional distress: vulgar insults wont suffice.
Extreme&outrageous only.
← *Four elements: intentional or reckless conduct, extreme and outrageous (reasonable person
should have known), causal connection b/t conduct and distress, distress that can be considered severe.
← * can’t be studied in vacuum; cant always prove distress worsened illness (stuttering); Harris v.
Jones
← * “liability only for conduct exceeding all bounds which could be tolerated by society.” – Slocum
v. Food Fair Stores of Florida. in this case, plaintiff lost even though later suffered heart attack.
Causation probs.
← *intent required – D unaware of bystander’s presence likely bars recovery Taylor v. Vallelunga
← *transferred-intent unlikely in IIED. Substantial certainty that act will cause ∏ severe mental
distress.
← “plaintiffs must necessarily be expected and required to be harded to a certain amount of rough
language, and to occasional acts that are definitely inconsiderate and unkind.” Harris v. Jones
←
← II. Defenses to intentional torts, privilege, necessity, consent, emergency, self defense
← 1. Privilege - defenses that can be asserted justifying conduct that is usually an intentional tort
* D has acted to further an interest of such social importance that his actions are
entitled to protection, even at the expense of injured ∏. D’s interests or that of the public
desire/require his actions.
* Mistakes may be justified if reasonable and made in good faith; “privilege of reasonable
belief justifying detention” Bonkowski v. Arlan’s Department Store. Not all courts agree that
mistake is ok, “actor steps in shoes of person he is defending, & is not privileged if the other
would not have been
2. Necessity: D acting to prevent injury from force of nature/other causes independent of ∏
* Public Necessity v. Private. – Is interest protected of community or the individual?
* Public Necessity often gets immunity. D can destroy, damage, or use property when he
reasonably believes it to be necessary to avert imminent public disaster.
* No brakes in your car; must swerve to kill baby or swerve to hit crowd or serve to kill self. If
a reasonable person may have made the choice, the privilege of private necessity may be
invoked.
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3. Consent: present when one wills the D to engage in conduct and D acts in response to that
will.
* Destroys the wrongfulness of the conduct, and ordinarily bars recovery, even if harmful to
interests of others, or immoral, or criminal; applies to action itself or conduct that brings
about the action, or both.
* A ∏ can consent to conduct even if he doesn’t want it to happen; - contact in sporting
event.
* Consent to risk is not consenting to conduct; - deliberate violation of rules of sports.
* does not require words (raise arm vaccine); D can interpret ∏ conduct as Reasonable Man.
* Inferable from custom – friends practical joking; walk inside friends’ house not trespass; circle game
* Consent must be effective: ineffective when: lacked capacity, was coerced, mistaken about quality of
invasion, conduct was type of conduct that no one can consent –shooting someone.
* Medical Operation is substantially similar in nature to procedure already occurring, consent inferred.
* Deceit will negate consent. De May v. Roberts – doctor’s “assistant” was in fact layperson.
4. Emergency: consent can be implied in emergency situations where it reasonably appears that delay
until such time as obtaining effective consent would subject person(patient) to risk of serious harm
* A reasonable person, appreciating the circumstances, would consent to the conduct.
5. Self-Defense: Privilege to use reasonable force when apparent necessity to avoid immanent danger
* Reasonable Person Standard for actions; Did D act reasonably under circumstances?
* Defense of Others generally has same rules as defense of self.
* Excessive force is a tort; Revenge not defense/excuse; burden on D to justify; (reverse if D is police)
* Provocation, threats, insults of ∏ not excuse for SD, unless reasonably felt in immanent danger.
* Ability to escape is not agreed upon; some courts require when easily apparent, others don’t.
* Deadly force not agreed upon; human life so valuable that deadly force is not OK if not necessary?
* False arrest sticky – NOT OK when police. Ok if false arrester not using/threatening force?
* Defense of Property sticky –must be necessary and not excessive; usually requires fear of danger; use
* force to recovery chattel in fresh pursuit Hodgen v. Hubbard (P pulled knife); not allowed deadly force
for property alone; - Katko v. Briney; “law places higher value on human safety than property rights.”

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← III. Negligence: Standard of Conduct elements, standards.

1. A duty or obligation, recognized by law, requiring a person to conform to a certain standard of
conduct, for the protection of others against unreasonable risks. See IV. Duty.
2. A failure on the D’s part to conform to the standard required: a breach of the duty. A D can fail to
conform to a standard of conduct, establishing negligence, but without a duty to ∏ there is no recovery.
3. A reasonably close causal connection between D’s conduct and the resulting injury. The cause must be
a “legal cause” or “proximate cause;” including the notion of “cause in fact.”
4. Actual loss or damage resulting from 1-3. Proof of action is essential to any tort case. Nominal
damages cannot be recovered in a negligence action. Statute of limitations is generally not held to begin
to run against a negligence action until some damage has occurred, which may be long after its cause.
5: Distinguished from Intentional Torts; Standard of Conduct; Required Care:
a. In negligence, the actor does not desire to bring about the consequences that follow, nor does he
know that they are substantially certain to occur, or believe that they will.
b. There is merely a risk of negative consequences, great enough that a reasonable person should
anticipate them, and guard against them.
c. As the probability of a consequence increases, negligence gets further and further towards intent.
d. The standard is of conduct, not of consequences. Not enough that risks are apparent in hindsight;
must have been reasonably apparent when conduct occurred. And conduct must be unreasonable.
e. Risks that should not be reasonably anticipated dont qualify, “unavoidable accident”; risks that
should, even if odds are slight, are. Ex: unlikely a train will hit me, but risk is there, I should look.
f. The standard of conduct underlying law of negligence is determined by risk-benefit analysis. By
balancing the risk, in light of the social value of the interest threatened, and the probability and
extent of potential harm, against the value of the interest that the actor is seeking to protect, and
the expedience of the course pursued. Negligence Formula: Learned Hand, US v. Carroll Towing Co
If (Burden < Cost of Injury X Probability of occurrence), then standard of care not met: negligence.
If (Burden ≥ Cost of injury X Probability of occurrence), then standard of care may have been met.
6. Application of Standard custom, exceptions, negligent entrustment
a. Standard of conduct will be community standard; evidence of the usual and customary conduct of
others under similar circumstances is normally relevant and admissible;
b. Custom is not immune to negligence, if the custom is itself negligent. Customary Negligence.
c. Failure to comply with customary precaution may, in some instances, be negligence itself, when
others are relying on the custom. Ex: lighthouse.
d. An Actor in an emergency is generally not held to the same standard, particularly when the actor
is left no time for adequate thought, or is reasonably so disturbed or excited that he cannot weigh
alternative courses of action, and must make a speedy decision based on impulse. Thus, the
Reasonable man in similar circumstances. Emergency does not entitle you to act like an idiot.
e. Negligent Entrustment - Assuming that everyone behaves very reasonably may cause negligence;
negligence exists in the word, proceeding reasonably. Ex. Assuming someone will stop at stop sign.
III. Negligence: Standard of Conduct Reasonable Man, Negligence Per Se, Degrees, Accident
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7. The Reasonable Man of Ordinary Prudence (who exercises ordinary care).

a. The theory of negligence presupposes a uniform standard of behavior. But there are infinite
potential situations that can occur, and it is impossible to fix definite rules in advance for all
conceivable human conduct. A formula must therefore be made, as objective as possible, the same for
all persons. It must make allowance for the risk apparent to the actor, for his capacity to meet it, and
for the circumstances under which he must act. Thus, “reasonable person of ordinary prudence.”
b. The personification of a community ideal of reasonable behavior, determined by a jury’s judgment.
c. He is prudent, careful, and always up to standard. He does not do unreasonable things.
d. His conduct varies with the situation in which he is involved; thus (b/c) negligence requires a
person to act as a reasonable person would do under the same or similar circumstances.
e. He is identified with the actor in question; if actor blind, then he is blind; deaf, lame, weak, ect.
1. However, stupid people are not given immunity Vaughn v. Menlove. The reasonable person
learns to live up to the standard of the community he is in, or he pays for what he breaks.
2. Intoxicated people are still liable; reasonable person isn’t drunk; retarded D poses policy issues.
3. Children are generally liable for their torts, but are not always held to same reasonableness
standard as adults; reasonable person may be child; varies with age, education, experience, ect. A
child will be held to an adult standard of care when dangerous machinery Robinson v. Lindsay.
4. Insanity is defense, but it must be sudden and without warning Breunig v. American Family Ins.
Co. This is b/c it’s better to hold guilty party responsible when one party must suffer loss; and to
encourage those responsible for the insane to watch them, like what didn’t happen in Breunig.
5. the amount of care demanded by the reasonableness standard should be in proportion to the risk
involved; hence workers with electricity, gas, explosives, owe a greater amount of care.
f. Reasonable person is reasonably attentive;
g. Reasonable person may be skilled and have superior knowledge; reasonable doctor,
reasonable lawyer, ect. The law demands the person acts consistent with their superior knowledge. If
a doctor makes a mistake, he can be exempt if a reasonable doctor may have made it, if a
reasonable doctor doesn’t make the kind of mistake, then he will not be exempt.
8. Negligence Per Se occurs when something is negligent as a matter of law; violation of statute
b. some courts have recognized the bad policy of it, and made per se be a presumption of
negligence, which the defendant is then given an opportunity to defeat. Others no question of neg.
c. There is duty to keep conditions safe for invitees.
d. Defendant owner liable unless given “constructive notice” to notice dangerous condition for
invitees, as when customer slips on random banana peel Joye v. Great Atlantic and Pacific Tea Co.
e. Negligence per se still requires the neg to cause the injury; cant sue unless damages.

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IV. Proof of Negligence: Scope, Causation-in-Fact, “but-for”, Res Ipsa Loquitur, Foreseeability.
Proximate Cause: Scope of Problem, Issues, and Generalizations
1. Scope: Once it’s established that the D’s conduct has in fact been one of the causes of the plaintiff’s
injury, there remains the question of whether the defendant should be legally responsible for it.
a. This is a question of law, not of fact. Jury decides if it was a cause, court decides if it was proximate.
b. Liability should not extend beyond foreseeable risks, or beyond “directly traceable” consequences.
c. Relationship to duty: “was D under a duty to protect the plaintiff against the event that occurred?”
(1) Something may be proximate cause but standard of conduct is OK and it’s not actionable. Ex. I
negligently leave my door unlatched on a windy day and it smacks my friend in the face.
d. Proposed formulas/problems for proximate cause: most are bad; a couple are OK, (6) is good.
(1) nearest cause – antecedent which is nearest in time or space; not really used anymore
(2) last human wrongdoer – only one legally responsible. Outdated; influential to last clear chance
(3) substantial factor test: almost like “but-for”; useful to courts, but not ideal. “Cause-in-fact” style
(4) justly attachable: was harm justly attachable to D’s conduct? Ambiguous... court may consider
(6) Problems Involved: - approach as a series of problems, TBD upon different considerations; List:
(a) causation in fact: what part has D’s conduct played in bringing about result?
(b) apportionment of damages among causes – See Joint Tortfeasors.
(c) unforeseeable consequences – what extent is D be responsible for what he couldn’t foresee?
(d) Intervening Causes – should D be relieved of liability? Does new cause supersede D’s cause?
2. Causation-in-Fact: Must be reasonable connection b/t act or omission and ∏’s damage/injury
(a) “proximate cause” or “legal case” is the term used by courts for this reasonable connection
(b) Causal-nexus is infinite, so courts must make justifiable boundary in imposing liability

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1. Remember: just b/c someone’s conduct is proximate cause, THERE MUST BE A DUTY for liability
(c) causation in fact: oldest and most obvious problem w/ proximate cause; “is a matter upon which lay
opinion is as competent as the most experienced court. For that reason, it is a question for the jury.”
(d) A cause must be a necessary antecedent. Not limited to physical forces; preexisting passive
conditions are considered causes as well; ex: failure to fence pool causes child’s drowning.
(e) Test: factfinder compares what occured with what would have occurred w/ hypothetical conditions.
3. “But-For,” Sine Qua Non, Substantial Factor. What is a cause? (legally)
(a) an act or omission is not regarded a cause of an event if the event would have occurred without it.
(b) sine qua non – D’s conduct is a cause of the event if it wouldn’t have occurred “but for the conduct.
Conversely, D’s conduct is not a cause of an event if the event would have occurred w/o it.
(c) sine qua non does not establish negligence itself; the cause still needs to be a proximate. But-for
establishes “a” cause, not necessarily “the” cause. Used as rule of exclusion 2 determine all causes.
(d) if two causes concur 2 bring about event, and either 1, operating alone, was sufficient to cause
identical result, some other test is needed. If there are 2 causes of an event, both may bring liability.
(e) Substantial Factor Test can be better, as when similar but not identical result w/o D. Developed for
cases in which application of sine qua non would allow each defendant to escape responsibility b/c the
conduct of 1 or more others would have been sufficient to produce result.
4. Unforeseeable Consequences: Palsgraf, Modern Proximate Cause Majority
(a) What happens when one unreasonably fails to guard against harm, which he should foresee, but
consequences follow which no one could reasonably anticipate or foresee? Palsgraf v. Long Island RR Co.
(b) not a question of causation; question arises only once causation has been established.
(c) Is a policy question, as to whether D’s responsibility should extend to such results.
(d) Main Question: Is D legally responsible to protect the plaintiff against unforeseeable consequences of
D’s own negligent acts? Two opposing views that have been at odds for centuries.
(e) Limitation to Liability of Risk: The same criterion of foreseeability and risk of harm that determined
whether D was negligent in the first instance should determine the extent of the liability for his
negligence. Thus, no D should ever be held liable for consequences that no reasonable person would
expect to follow from his conduct. Test for liability is the test for negligence.
(1) Palsgraf v. Long Island RR Co. – stated issue of foreseeability in terms of duty. “unforeseeable ∏”
(a) Cardozo: Negligence is a matter of relation b/t the parties, which must be founded upon the
foreseeability of harm to the person in fact injured. D’s wrong wasn’t a wrong to injured woman.
(b) Dissent: due care is a duty imposed upon each one of us to protect society from unnecessary
danger, not to protect A, B, or C alone. Everyone owes the world at large the duty of refraining
from those acts which unreasonably threaten the safety of others.
(c) Restatement accepts Cardozo’s view, as does the majority. This view must extend to other
topics as well, such as when a person thus cannot recover from shock after seeing harm.
(2) In Re Polemis & Palsgraf Dissent: If the result is out of all proportion to the D’s fault, it can be no
less out of proportion to the ∏’s entire innocence.

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(a) if it is unjust to D to make him bear a loss which he could not have foreseen, it is no less
unjust to ∏ to make him bear a loss which ∏ too could not have foreseen, and and not even due
to his own negligence. D is required to be reasonably careful for the protection of those to whom
harm can be foreseen. If we extend liability to others, we impose upon D no new obligation of
conduct, and reasonable care would still protect D from liability. b/t innocent ∏ and a D who has
been negligent as to results lying w/I the risk, though not foreseeable, the burden of the loss
should fall upon wrongdoer… This, in essence, is no different than the egg-shell style cases where
D is liable for the aggravation of jank persons; Not foreseeable that random person has egg-shell
for a skull, but you’re still liable. So, some courts proximate is beyond foreseeability.
5. Intervening Causes: comes into operation in producing result after negligence of defendant.
(a) giving loaded gun to child who then shoots himself. Child is intervening, but you still negligent.
(b) foreseeable IC’s likely negligence: b/c failure to guard against. Duty to take precautions. Fire&wind.
(c) Foreseeable results of foreseeable causes – negligence; unforeseeable R’s to unforeseeable C – not.
(d) Remember: even when foreseeable, D only liable if his conduct created/increased unreasonable risk.
(e) Not foreseeable maybe liability. Fuller v. Preis – suicide liability, rescuer injured, original fease liable
(f) Foreseeable results unforeseeable causes: don’t clean oil tank, lightening strikes, fire. negligent.
(g) Liability must be limited to cover only IC’s that are w/I scope of reasonable risk, or at least have
some reasonable connection with it.
6. Proof of Causes: determined by jury, unless reasonable persons could not differ
(a) Standard: “more likely than not.” Preponderance of evidence. Mere possibility is not enough.
(b) Damage had a necessary antecedent and inevitable consequences
(c) Circumstantial evidence, expert testimony, common knowledge are all used to infer causal sequence.
(d) If can’t be proven whom of two caused injury, trend is to fault both. (See jointfeasors.). ex: two D’s
shoot, one hits ∏, but who? Punish both. Some courts neither; policy: innocent D vs. ∏ not recovering.
7. Proof of Negligence: a mix b/t law and fact; court and jury.
(a) jury must find value of evidence and conclusions drawn from it. draw or refuse to draw inferences
from testimony as to which there may be a difference of opinion. Did he stray from Reasonable man?
(b) judge decides whether there is a duty; is a question of law. Judge must ensure jury is reasonable.

V. Negligence - Owners and Occupiers of Land, lessor lessee, invitee, licensee, trespassers
1. Outside the Premises: the general duty of property owners to keep their shiz under control.
(a) The DUTY that arises from property owners: he who possesses property ordinarily is in best position
to discover & control its dangers, and is often responsible for creating them in the first place.

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(b) Possessors of land and rights of property owners are bounded by principles of reasonableness, so as
to cause no unreasonable harm in the vicinity. Liability rests on intent, negligence in the creation of
unreasonable risk, and strict liability for keeping animals or other abnormal activities.
(c) Public vs. Private Nuisance: does it mess with another’s person or land, or does it mess with the
public, as in a person whose land is next to the public highway? Implied invitation if path from highway.
(d) Natural vs. Artificial Conditions: traditionally no duty to fix natural conditions, but not always the
case in urban areas. Artificial conditions D liable for negligence as to their condition / maintenance.
(f) Respondeat superior. Owner may be responsible for his guests; as when they throw stuff onto
adjoining property, play golf off the porch; but liability will be for negligence, so he won’t be liabile for
damage of others that he could not foresee or prevent.
2. Trespassers: no privilege to be on land; lowest duty owed, no rights to safe place to trespass
(a) Trespasser assumes the risk of what they might encounter; expected to look after themselves
(b) Owner under no obligation to conceal pitfall, dangerous wire, or even look out for them as he
operates his tractor. Even involuntary trespassers (wanderers) have no rights to these protections.
(c) Immunity from negligence – trespasser is not reasonably anticipated, so a reasonable person would
not take steps to protect him. The trespasser is then contributory negligent. Also, our civilization is
based on private ownership, so it’s a social policy protecting right to do with land what he wants.
(d) human safety more important than unrestricted freedom to use of land, rule has many exceptions.
(1) Frequent Trespass on Limited Area: to knowledge of the occupier/owner, if trespassers in
substantial number habitually enter at a specific point, or traverse a small area (short cut), many
courts have held there will be a duty of reasonable care to discover and protect them.
(a)Some courts: continued toleration amounts to permission, becomes: licensee. Tacit permission.
(2) Discovered Trespassers: once presence is known, occupier must exercise reasonable care.
Derives from old rule that owner cannot use inflict unreasonable injury on unwelcome visitor.
(a) trespasser is not outlaw; A defendant is not allowed to set traps for trespasser. Katko v. Briney
(b) Unreasonable force and intentional negligence are both not allowed. Some courts stop here,
others have gone beyond and say ordinary care is required when he’s known. A warning may be
required if there is artificial & dangerous condition that trespasser might get janked on.
(3) Children: immaturity and lack of judgment may make owner/occupier liable.
(a) Parents must look after children, but aren’t expected to follow them everywhere; occupier of land
may be in best position to protect child. Social policy to maintain safety of children.
(b) Chicago, B & Q.R. Co. v. Krayenbuhl – unlocked turntable; negligence formula comes into play.
(d) Rst.2d 393 – liable for harm to children trespassing if (conjunction): knows or has reason to know
children will likely trespass; condition is which possessor knows or should know/realize has
unreasonable risk of death or serious bodily harm to such children; children b/c of youth do not
discover condition or ealize risk involved in intermeddling with it or coming w/i area made dangerous
by it; utility to possessor of mainting condition and burden of eliminating the danger are slight as
compared w/ risk to children involved; possessor fails to exercise reasonable care to eliminate danger
or otherwise protect children.
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2. Lessor and Lessee caveat emptor: traditionally not responsible, either to persons injured on or off
land for conditions which develop or are created by the tenant after possession has been transferred.
(a) Also not responsible for activities tenant carries on upon the land after transfer, even if nuisance
(b) Lessor is obligated to disclose to lessee concealed dangerous conditions which he has knowledge.
This extends to guests of the lessee. Not always necessary that he know condition to be unsafe, or that
it even exist. Hallways and approaches of offices/apts. remain in possession and liability of lessor.
(c) Rooms w/i a building may be different. Must be up to standard. Trimarco v. Klein. Landlord in a
much better position to keep up with the safety conditions of his place.
3. Licensees: anyone who has a license, (privilege) to enter upon land. Enter with consent and nothing
more. Comes for his own purposes, like a friend.
(a) receives the use of premises as a gift; no right to demand that the land be made safe for his
reception, and must in general assume risk of whatever he may encounter, & thus look out for himself.
(b) Persons included: permissive short cuts; loiterers, people who come into stores only to get out of
weather; those searching for children, or other 3rd persons; spectators and sightseers not invited to
come; social visits, or business if w/ the employee of possessor; come to borrow tools;
(c) social guest is licensee, don’t mess this up. If he performs gratuitous services for possessor, he is
still only licensee. Some courts are moving away from this, and giving guests more protections.
(d) There is no duty except to exercise reasonable care for the protection of licensee. He must tell of
concealed danger; he isn’t liable for things he doesn’t know about, unless he should have known. RPS.
4. Invitee: enter w/ express or implied invitation for business concerning occupier; duty to protect, not
only of dangers of which he knows, but also against those which w/ reasonable care he might discover.
(a) the duty is founded on the possessor gaining a benefit from invitee. Economic benefit theory; invitee
and possessor give mutual benefit; business dealings in past may be sufficient Campbell v. Weathers.
(b) Public invitees – church, public lecturers, expectation to buy but sold out, ads that something is free.
(c) Reasonable care as licensee except occupier must inspect premises to discover possible dangers.
(d) he must know of the danger, or reasonable been able to discover it, to be liable. Invitees are
expected to protect themselves against obvious dangers.
(e) public employees like garbage man are invitees usually; police/firemen may be invitee or licensee.
(f) Abolition of Categories: some courts abolish categores, especially invitees and licensees, because
harsh/mechanical, complex, and stupid. A person’s life or limb isn’t less worthy when their status is
licensee or invitee. Rowland v. Christain.
VI. Negligence: Limited Duty Failure to Act, Prenatal Injuries, Mental Disturbances
2. Mental Disturbances an issue that most courts disagree on
(a) objections: cannot be measured in terms of $, so hard to make basis of action; also hard to
determine proximate cause; there is a lack of precedent, so judges are weary, fearing flood of litigation.
(b) answers: it is a consequence that flows directly from a D’s negligence; though it may mostly only
have serious consequences when there is an underlying mental problem, the law is not for the sane
alone. It is the business of courts to make precedent where wrong calls for redress, even if
lawsuits must be multiplied; many courts have allowed it, without great increase in litigation.
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(c) mental disturbance alone – when negligence only causes mental disturbance, with no physical injury
or illness, the great majority of courts still hold in ordinary case there can be no recovery. “the
temporary condition of fright, so far from serious it does no physical harm, so evanescent a thing, so
easily counterfeited, and usually so trival, courts have been unwilling to protect ∏ against mere
negligence, where elements of extreme outrage & moral blame, as in intentional torts, are lacking.
(1) two exceptions: telegraph company negligently transmits a message, usually of death, where there
is an especial likelihood that such mental distress would result. (2) negligent mishandling of corpses.
These cases have in common that the claims will likely cause distress, so chance of fraud is lessened.
(d) mental distress with physical injury: courts have not been so reluctant; courts have awarded
for fright, nervousness, humiliation at disfigurement, pain, ect… for the most part physical harm
required.
(e) still controversy over when the physical harm is not immediate, but follows later as a result of ∏’s
emotional distress over the negligently caused incident – as in the case of a miscarriage; “With few
exceptions, recoveries have been restricted to women, and for the most part, pregnant women.”
(f) Peril or harm to another: many courts deny all recovery. This is b/c lack of foreseeability/duty.
Stands in the position as Ms. Palsgraf. Strongest case – mother watches child run down by car.
(g) some courts reason the bystander(mother) is foreseeable, and thus a duty does arise. Physical,
temporal, and relational proximity required by these courts. But it is not majority.
(h) if the person is threatened with physical harm, as in a mother in the path of the vehicle that runs
down her child, and she is terrified, then some courts establish duty, thus recovery. “zone of danger.”
1. Failure to Act: Misfeasance vs. Non-Feasance,
(a) Nonfeasance – liability has been extended to a limited group of relations, in which custom, public
sentiment, and views of social policy have led the courts to find a duty of affirmative action. In such
relationships the plaintiff is in some respect particularly vulnerable and dependent on the D, who,
correspondingly, holds considerable power over the ∏. Exs: failure of train conductor to blow his wistle,
failure to fix a gas pipe, failure to supply heat to a building. Usually no liability;
(b) duty to rescue is non-feasance, and typically holds no liability. A physican is under no duty to
answer call of dying man who could be saved. Expert swimmer with a boat and rope can watch a man
drown while he smokes his cig. Some duties are required: school to pupil, maritime seamen, shopkeeper
to business invitee, jailer to prisoner; if the P is in peril b/c of D’s negligence, D has duty to rescue.
(c) Misfeasance – liability may extend to any person to whom harm may reasonably be anticipated as
a result of the D’s conduct, or perhaps even beyond; while for nonfeasance it is necessary to find some
definite relation b/t the parties, of such a character that social policy justifies imposition of duty to act.
(d) duty to avoid affirmative acts that make a man’s peril worse, even if no duty to rescue.
(e) D will be liable for misfeasance of preventing aid by others to a person in peril.
(f) Controlling conduct of others – some relationships require this duty; a carrier towards its passengers
may require it to maintain order in its trains and stations, to use reasonable care to prevent negligent
conduct and physical attacks, thefts, ect.. on the part of passengers or strangers.
(g) a tavern keepr is responsible for preventing drunkards from injuring other patrons.
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2. Prenatal Injuries: injury to fetus, birth of unwanted child.

(a) Infliction of harm through mother’s body: historically not allowed; bc D owes no duty to a person not
in existence at the time of his action; difficult to prove causal connection, danger of false claims.
(1) modern view is child can maintain action if born alive; wrongful death if he dies shortly after birth.
(2) two problems: 1.viability, “quick”; courts disagree whether fetus must be viable or quick(moving) at
the time of injury. 2. Harmful contact occurs b4 fetus; ingestion of drugs causing chromosomal damage
to mother’s ovum, or uterus. Courts have held stillborns cannot recover. Endresz v. Friedberg. “before
there may be a “decedent,” ‘there must be a person born alive. A fetus once born may have an action.
When fetus is dead, proof of pecuniary injury and causation is way more vague than suits for injury.’
Remember, tort is not based on punishment, but on pecuniary loss. Difficult to prove. Also, a person
never born generally has no legal status. Endresz v. Friedberg. Dissent: a negligent doctor could kill a
baby pre-birth and have no liability, but only injure it and have liability. Death is worse, so illogical. The
mother could try to sue for distress and her own injury. Double claim: death, and mother’s miscarriage.
(3) Unwanted Children: “wrongful birth,” “wrongful-life,” “wrongful pregnancy”; generally claims against
doctors charged w/ negligence in failing to prevent conception(sterilization/abortion procedure), or in
failing to diagnose or inform the parents that child might be born deformed, in time to terminate/abort.
Procanik by Procanik v. Cilo – infant suing for wrongful birth; doctor’s failed to diagnose german
measles, depriving parents choice of termination. b/c of measales, infant born w/ congenital rubella. “an
infant ∏ may recover as special damages extraordinary medical expenses attributable to his affliction,
but he may not recover 4 wrongful life, emotional distress or impaired childhood. This would be bad
policy – Courts wont take a stance on whether a jank life is better/worse than no life at all. Also,
handicap is not the result of negligent doctor; his life is the only result;
(a) Wrongful pregnancy (birth control fail, abortion fail) – many courts deny recovery b/c benefit of
being parent outweighs detriments. Most allow to recover; but generally only for pain of pregnancy, and
not for wrongful life. Enright v. Eli Lilly – premature birth/cerebral palsy – gmother ingested DES –
caused mother’s reproductive abnormalities. Cause of injury too remote; causality probs.
VII. Negligence: Defenses assumption of risk, contributory negligent, comparative fault.
1. Contributory Negligence: few courts say any cause is sufficient; most - proximate cause & Palsgraf
(a) the burden of proving ∏’s contributory negligence is on D. Complete bar to recovery.
(b) Occurs when ∏’s conduct falls below the standard to which he is required to conform for his own
protection. Unlike assumption of risk, in which D is relieved of any duty towards ∏, there is still a failed
duty, and negligence; but P is denied recovery b/c his conduct was so negligent that he cannot blame D.
(c) Several theories of Basis: Penal – punish ∏ for his conduct; Proximate Cause - ∏’s conduct is
intervening cause, and could equally sue himself; Discourage accidents –view is bad b/c it encourages
negligent D to hope ∏ is also negligent, encourages neg behavior in a way; policy making personal
interests of each party depend upon his own care and prudence – Prosser’s favorite view.
(d) the defense is not applicable to intentional torts; or willful, wanton, reckless.
(e) governed by same tests as regular negligence (only not really duty.) Learned Hand test applies.

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(f) proximate cause: foreseeable risks… but gets another; generally wont be contributory negs. ∏ must
expose himself to the type of risk of injury that he gets. Becomes tricky w/ automotive speeding.
(f) ∏ may be negligent to intentionally expose self to risk: ride w/ drunk, walk in unfamiliar darkness.
(g) denies recovery to avoidable consequences by reasonable conduct of ∏. Sometimes damages may
be apportioned if some could have been avoided but others could not; ex: injured plaintiff doesn’t seek
medical attention and his broken leg gets a million times worse. No recovery for aggravation.
2. Comparative Fault: Apportionment; modern trend replacing contributory and LCC
(a) Divides the damages between the parties at fault through apportionment. This is a big change to
contributory negligence and Last Clear Chance, so some Courts are reluctant to adopt.
(b) Objections: the pure type permits a major wrongdoer to recover against a minor one. In cases
where both ∏ and D suffer injuries due to the other’s negligence, a counterclaiming D may end up with a
greater monetary recovery despite his greater negligence, simply b/c his injuries were more severe.
(c) Three types: Pure, Modified, Slight-Gross; Pure and modified are most common.
(1) Pure – A ∏’s contributory negligence does not operate to bar his recovery altogether, but does
serve to reduce his damages in proportion to his fault. When there are multiple D’s all are liable to
plaintiff for their respective shares of the loss, even though some may have been less negligent than ∏.
(2) Modified – 50 percent system, under which a ∏’s contributory negligence does not bar recovery so
long as it remains below a specified proportion of the total fault. Equal Fault Bar & Greater Fault Bar.
(a) – Equal fault bar – bars the ∏ if his fault is equal or greater than the D; must be less than D.
(b) – Greater fault bar - ∏ is prevented from recovery only if his fault exceeds D’s; he can therefore
recover if his negligence is equal to or less than D. Juries tend to apportion fault equally in close cases.
Under equal fault bar, equal fault will result in no recover for ∏; and 50% recovery under Greater fault.
(3) Slight-Gross – only adopted in 2 states; NB& SD. ∏’s recovery barred unless his negligence was
slight in comparison to D’s gross. Still has his damages reduced by proportion of his negligence.
(4) Causation – causation in fact, by its nature, it incapable of being divided into comparative degrees;
it either exists or it doesn’t. If causation in fact established, proximate cause still required.
(5) Joint and several liability is adopted by most comparative negligence jurisdictions.
3. Last Clear Chance D has last clear chance to avoid harm, ∏’s negligence is not prox cause.
(a) Davies v. Mann – ∏ left his ass on the highway. D drove into it. ∏ was negligent in leaving his ass
there, but D had a clear chance to avoid hitting the ass, and contributory negligence not appropriate
(b) D clearly had the last chance of avoiding harm, and thus ∏’s harm is not a proximate cause.
(c) ∏’s negligence undoubtedly has been a cause, and a substantial and important one, of his own
damage, and it cannot be said that injury through the D’s negligence was not fully within the risk which
the ∏ created. However, court doesn’t find ∏ liable. D’s negligence involves a higher degree of fault.
(d) developed out of a dislike for contributory negligence in these types of cases; but it really isn’t just
either, and most jurisdictions that adopt comparative negligence don’t use it anymore. Dying doctrine.
(e) discovered peril: when ∏’s prior negligence has placed in him in a helpless position, and D discovers
his danger whilet here is still time to avoid making it worse but he makes it worse anyway, nearly all
courts allow ∏ to recover, even those which claim to reject Last Clear chance.
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(f) unconscious last clear chance - ∏ has become helpless, and D doesn’t discover danger in time,
though with reasonable care he should have, and is under a duty to, many courts refuse to allow
recovery; others do and hold the position that LCC should be applied in this context and recovery
allowed. There is a general lack of reasoning for either side.
(g) D, after discovery of the danger, does what he can to avoid the injury, but his prior negligence
prevents his efforts from being effective; ex: tries to stop car, but cannot do so b/c of defective brakes.
Most that do contributory negligence courts deny recover; but some don’t on the basis that “a last
opportunity which D would have had but for his own negligence is equivalent in law to one he did have.”
4. Assumption of Risk: ∏ must know risk is present and understand its nature. Voluntary consent to it.
(a) express consent - ∏ has given D express consent to undertake risk and relieve D of liability. Courts
generally do not interfere with right to contract unless one party has no bargaining power. Ex: contract
that exempts employers from all liability will not be upheld; against public policy.
(b) duty - ∏ voluntarily enters into a relation with D, with knowledge that D will not protect him against
one or more future risks that may arise from the situation. Tacitly or impliedly consenting to negligence.
(c) misconduct defense - ∏ is aware of risk already created by D’s negligence, but proceeds anyway;
you warn me of trap, and I try anyway; I see dangerous debris left on the sidewalk, walk on it anyway.
(d) main elements are knowledge and consent; I know your lights on your car don’t work but I ride with
you anyway; I go to a baseball game where I know balls fly in the air; (if 3 balls, no consent, recover).
(e) AOR is a matter o knowledge of the danger and voluntary acquiescence to it, while contributory
negligence is a matter of some fault or departure from the standard of conduct of the reasonable person,
no matter how unaware, unwilling, or even protesting ∏ may be.
5. Exculpatory Clauses: Seigneur v. National Fitness Institute, Inc. fragile ∏ at the gym. if clause is
clear enough where both parties understand its meaning/intentions, will be upheld, sometimes even if
against public policy; unless the harm is intentional, the bargaining power of one is so grossly unequal to
put one party at the mercy of the other’s negligence, or the transaction involves public interest.
(b) rush v. commercial realty co. – tenant used only outdoor toilet – no other reasonable alternative, so
landlord was liable in this case. Should have warned tenant that outdoor toilet was dangerous.

VIII. Products Liability: Negligent Manufacture/Design; Strict Liability

1. General: 2 types of product conditions that result in loss: 1. Dangerous condition of product itself; 2.
Inferior condition or the type of condition that disappoint the purchaser’s expectations.
(b) Four theories of recovery: 1. strict liability in contract for breach fo warranty, express or implied.
2. negligence liability in contract for breach of an express or implied warranty that the product was
designed and constructed in a workmanlike manner. 3. Negligence liability in tort for physical harm to
persons and things. 4. Strict liability in tort for physical harm to persons and things.
2. Warranty Origins: historically the law was caveat emptor & thus no liability under warranty theory.
(a) Modern theories: Express warranties resulting form statements&representations of goods sold.
Implied warranties resulting from a notion that a product should function as it is intended to.

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(b) implied warranty: buyer is relys on merchant’s knowledge and representation when he buys product.
(c) Traditionally, liability limited to privity of contract. Disclaimers negating warranties enforceable.
3. Product Liability: Negligence – negligent manufacture or design.
(a) ways to be negligent: failure to inspect or test materials/work/finished product; discover possible
defects or dangerous propensities; held to standard of expert in the field; misrepresentation of product
must be reasonable, he must disclose all defects and dangers that he knows.
(b)Privity: seller not liable for his negligent goods except to immediate buyer – Winterbottom v. Wright.
Reasoning based on idea that seller’s misconduct was not cause of damage to consumer in legal sense.
Reasoning changed modernly b/c foreseeability; clearly foreseeable products to be resold to consumer.
(b) MacPherson v. Buick Motor Co. Cardozo; car wheel collapsed. “inherently dangerous” products neg
made required no privity 4 liability. Eventually Extended 2 all products, not inherently dangerous.
(c) manufacturer benefit similar to invitees – negligence should follow. Furthermore, there should be a
notion of a representation of safety in the mere act of offering goods for sale; manufacturer owes a duty.
(1) failure to discover flaw – manufacturer must exercise reasonable care to avoid and discover
unintended dangers in construction process. Resellers can be negligent in creating or failing to discover
flaws. Retailers not negligent as matter of law, unless he should have found flaw or created it. But courts
may find this duty, and hold him liable, under similar reasoning as respondeat superior jnt&sev
(2) failure to warn(adequately) – must warn about risks/dangers inherent in product design or potential
defects of manufacture. Such risk must be foreseeable for liability. Remember: same rules as negligence.
There may be no duty to warn of obvious dangers (no breach of duty). Obvious dangers will however be
found defective when there is a way to make design safer with little cost/ect. Learned Hand Test.
(a) No duty to guard/warn against unforeseeable misuse. If child hurt, could he even read warning?
(b) Prescriptions – doctor needs to inform patient of risks; producer needs to warn doctor.
(5) defective as designed: a product can be negligently designed. Even if a seller had done all that he
could reasonably do to warn about a risk or hazard related to the way a product was designed, it could
be that a reasonable person would conclude that the magnitude of the reasonably foreseeable harm as
designed outweighed the utility of the product as designed. Strict liability addresses this further.
(e) Remember, the duty is pretty obvious, whether or not the accident was foreseeable will be the
biggest determination if there can be negligence. Proof (breach of duty is hard to establish). Strict fixes.

3. Strict Liability warranty and tort. – warranty out of style. Tort – “dangerously defective”
(a) Cost of damaging events caused by defectively dangerous products can best be borne by the
enterprisers making and selling the products. Ability 2 distribute the losses of the few among the many.
(b) Accident prevention will be promoted by strict liability, b/c easier than proving negligence.
(c) Tort better than warranty b/c a tort theory based on dangerousness of conduct applies better than a
warranty theory based on breach of an implied promise. Warranty still exists however, and under UCC
“injury to person or property resulting from breach of warranty is consequential damage & recoverable.
(d) Dangerously Defective: ∏ must impugn product itself rather than designer/maker of product (as in
negligent liability). 402A Restatement(Second) “defective condition unreasonably dangerous.”
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(1) A product is defective and marketed in the kind of way that makes it unreasonably dangerous for
any of these reasons: (1) a flaw present at the time it was sold; (2) failure by producer or assembler
to adequately warn of a risk of hazard related to the way it was designed; (3) defective design.
(1) flaw – abornomality or a condition that was unintended, and makes the product more dangerous
than it would have been as intended. If more dangerous than intended, and flaw caused
accident, strict liability as matter of law. No proof of negligence is required; it’s like res ipsa
loquitur, but easier to apply, b/c no inferences need be drawn about the cause of defect, ect. Flaw
needs to be the cause of the accident; Expert evidence can demonstrate that flaw was cause, and
misuse unlikely. The older the product, the less likely that evidence of malfunction will suffice of
construction flaw; the nature of the accident can indicate flaw, such as a new tired blowing out.
(2) failure to warn: warning only need be inadequate. No liability unless D designer knew or should
have known in the exercise of ordinary care of the risk or hazard which he failed to warn. Also, no
liability unless manufacturer failed to take precautions of a reasonable person in presenting product to
the public; very similar to negligence, less the defenses, ect. All in marketing chain can be liable
without negligence for negligence of the manufacturer in failing to warn or adequately warn.
(3) design defect: (1)consumer contemplation test (402A) – a product is defectively dangerous if it
is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who
purchased it with the ordinary knowledge common to the community as to the product’s
characteristics. Inadequate b/c products may be “defective” that aren’t, as when a new drug greatly
helps humanity but hurts a few people due to unknowable risk; purchaser cant recover if he shouldve
known of risk; and meaning is ambiguous. (2) danger-utility test: a product is defective as designed if,
but only if, the magnitude of the danger outweighs the utility of the product. Theory/policy: virtually
all products have both risks and benefits, there is no way to go about evaluating design hazards
intelligently w/o weighing danger against utility. This applies in 3 ways: (a)the harmful consequences
from intended and foreseeable uses, resulting form the way the product was designed, and marketed
up to the time of P’s injury, outweighed the benefits in terms of wants, desires, and human needs
served by the product; (b) though harmful consequences didn’t exceed benefits, alternative products
were available to serve the same needs w/ fewer risk; (c) though harmful consequences didn’t
outweigh the benefits, there was a feasible way to design the product w/ less harmful consequences.
(e) state of the art: if the product was designed or constructed in conformity with the state of the art
at the time it was sold/distributed, then either (a) the product should not be regarded as defective in
such a manner as to be unreasonably dangerous; (b) if defective, an affirmative defense or excuse
should be recognized. It is generally agreed that a product cannot be regarded as defectively designed
when sold simply b/c after the sale and prior to the time of trial there’s a technological breakthrough.
IX: Joint Tortfeasors concerted action, joinder of D’s, apportionment, satisfaction, release
1. Concerted Action: can mean different things to different courts.

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(a) all persons who acted in concert to commit a trespass, in pursuance of a common design are liable
for the entire result. Each is liable for all damage done, although one might have battered, while another
imprisoned the ∏, and a third stole from ∏; all may be joined in the same action at law. Traditionally,
because each was liable, the jury was not allowed to apportion the damages. This is still law.
(h) joinder is permitted with both D’s act in concert, when they act independently to cause the same
harm, and even when the D’s acted independently to cause different harm; when the the ∏’s claim arise
from “the same transaction, occurrence, or series of transactions or occurrences and if any question of
law or fact common to all defendants will arise in the action. Policy of easing burden on ∏ - more
convenient to litigate in one action, rather than multiple. Note required that ∏ do this. D cannot compel
the joinder of other parties, and cannot prevent the voluntary dismissal of co-defendant. But he can
bring another lawsuit against co-D for contribution or indemnity against another party.
(b) D’s don’t need express agreement; participated in the joint creation of a negligent risk ex: drivers
race and neg injure ∏ Bierczynski v. Rogers.
(c) even when not in concert, D’s can be jointly and severally liable if apportionment is too difficult to
determine. Michie v. Great Lakes Steel Division. Not all courts accept this rationale.
(c) one who innocently further the tortuous purposes of another is not acting in concert with the other.
(d) Joinder of defendants: “any person may be made a D who has or claims an interest in the
controversy adverse to the plaintiff or who is a necessary party to the complete determination or
settlement of the questions involved therein.” Ex: two vehicles collide and injure bystander ∏.
(e) joinder is usually permitted where both D’s had a common duty. Also, respondeat superior;
(f) a D is responsible for all consequences proximately caused by his wrongful act; even if another’s
wrongful act also proximately caused it; hence, joint and several liability.
(g) one who is directed or employed by another to do an act not manifestly wrong, or is induced to act
by the misrepresentations of the other, is entitled to indemnity for recovery by a third party.
2. Apportionment of Damages
(a) Concerted actions – joint several liability. Vicarious liability – master liable for acts of the servant;
(b) Common duty: two D’s under a similar duty to exercise care to prevent a particular occurrence,
which will be liable for an event; and here likewise there is no reasonable basis for division of damages.
(c) Single indivisible result – indivisible results, such as death or broken legs, are incapble of any
reasonable division when each party is a substantial factor in bringing about the loss; the damages then
will be charged to each for all. It is not necessary that the misconduct of two D’s be simultaneous. One D
may create a situation upon which the other acts to cause the damage.
(d) damages capable of apportionment: if it’s demonstrable that damages are apportionable, b/c of
divisible results and separate causes, they will be. Sometimes, when injuries occur successively, only
one D will be liable. Ex: Defendant A runs over plaintiff with a car, cracking his skull and leaving him
unconscious. Later, defendant B comes along and runs over his leg. Because A is the cause of P being in
the road, A will bear the cost of the leg as well.
3. Release/Contribution: satisfaction – an acceptance of full compensation for injury; release:
surrender of the cause of action, which may be gratuitous, or given for inadequate consideration.
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(a) traditionally a release of one releases all; recently this has begun to change.
(b) “the only desirable rule would seem to be that a P should never be deprived of a cause of action
against any wrongdoer when the P has neither intentionally surrendered the cause of action nor received
substantially full compensation.” A release of one D does not release the other, unless the judgment has
been satisfied. You cannot collect more than your injury is worth, so satisfaction releases all;
(c) Some courts allow contribution, a D seeking remedy from D-2 when D-1 had to pay full judgment.
The traditional rule is not to allow this, but it is becoming more popular.
(d) in some jurisdictions the apportionment of liability effected by contribution is on the basis that
“equality is equity,” which means each tortfeasor is required ultimately to pay a pro rata share, arrived
at by dividing the damages by the number of Tortfeasors. In other jurisdictions, the distribution of the
liability is in proportion to the comparative fault of the D’s. If D has an immunity of any sort, he will not
be required to contribute anything. Someone demanding compensation (contribution) has burden of
proof, not only that he is owed money, but that D-2 was liable in original suit.
X. Damages:
(a) A ∏ in a personal injury case cannot claim damages for what would otherwise be a permanent injury
if the permanency of the injury could have been avoided by submitting to treatment by a physian,
including possible surgery, when a reasonable person would do the surgery. – Zimmerman v. Ausland
← (b) An award of damages will be deemed excessive if it falls outside the range of fair and
reasonable compensation or results from passion/prejudice, or if it is so large that it shocks the judicial
conscience – Richardson v. Chapman.
← (c) A trial court must exclude evidence of payments received by the injured party from sources
collateral to the wrongdoer, such as private insurance or government benefits. – Montgomery ward&co.
inc v. Anderson
← (d) The court’s task in ascertaining the maximum recovery rule is to utilize five elements of
damages: Past physical and mental pain; Future physical and mental pain; Future medical expenses;
Loss of earning capacity and Permanent disability and disfigurement.
← 2. punitive damages: a court awarding punitive damages much consider – state farm mutual
automobile Ins. v. Campbell – US Supreme Court decision: (1) The degree of reprehensibility of the
defendant's misconduct, (2) The disparity between the actual or potential harm suffered by the plaintiff
and the punitive damages award.(3) The difference between the punitive damages awarded by the jury
and the civil penalties authorized or imposed in comparable cases. Due process will generally limit
damages to less than 10 times the amount of the original award.
← (b) Because punitive damages do not compensate the plaintiff, the plaintiff has no right to
punitive damages in any amount. If a state lets them have them by statute, so be it. If the state takes it
away by statute, so be it.

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Palsgraf Argument:
Can Y have an action against X for his negligence? This question relies
upon whether X breached a duty that he owed Y, and whether X’s
breach resulted legally caused the damage suffered. It could be argued
that all people have an obligation to exercise ordinary due care on a
regular basis, thus imposing a broad duty upon Y to protect not only X,
but all persons from injuries that result from his conduct. And if X has
such a broad duty, it would certainly be more fair to impose liability
upon X for the injuries caused by his own negligent conduct than to
make Y, an innocent bystander, pay for the consequence’s of X’s
negligence. After all, X’s negligent conduct was a necessary antecedent
to Y’s injury. Applying sine qua non, it seems certain that without
<insert X’s negligent behavior here>, the events leading to Y’s injury
would not have occurred.
o However, though Y’s injury was a consequence of X’s negligence,
such a consequence was unforeseeable. Liability for negligence can be
said to rest upon weighing the burden of exercising due care against the
potential injuries that may result from failing to exercise care combined
with the probability of risk of those potential injuries. Those who could
suffer a potential injury from the failure to exercise due care should then
be those to whom a duty of care is owed. A person weighing these
factors can only be reasonably expected to calculate the risks of injury
that are reasonably foreseeable, else such a foundation for liability
would require X to have wildly imaginative and unrealistic beliefs about
the potential consequences of his actions; thus requiring him to act
unreasonably.

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o The risks of injury must therefore be foreseeable in order that a

person weigh these factors. Consequently, the potential causes of injury
must also then be foreseeable in order that a person be able to
adequately weigh potential risks. If the risks of injury and causes of
injury require foreseeability, the general class of persons to whom may
suffer injury, to whom a duty of care is owed, must also be reasonably
foreseeable. Furthermore, all events can be said to have been caused
from a progressing causal nexus, extending from the past ad infinitum.
In order that the law does not subject defendants to liability for events
indirectly caused by their conduct though not actually within their
control, the law must fix a justifiable limitation on what can be
considered to be a legal cause of an event. For the reasons stated
above, a legal cause of an injurious event must therefore have been
reasonably foreseeable by he who caused the event.
o Similar reasoning was applied in the majority decision in Palsgraf v.
Long Island R.R. Co. Applying the majority decision in Palsgraf, and the
requirements explained above, X should not be held liable for Y’s injury,
even though X’s negligence caused Y’s injury. X was negligent, but not
in any way that could have been reasonably expected to affect Y in <the
manner that it did>. Though a wild imagination might foresee that D’s
<insert negligent conduct here> would set off a chain of events leading
to Y’s injury, the law must be reasonable and should not take a wild and
imaginative possibility into its assessment of legal duty. Also, Y herself is
an unforeseeable plaintiff of X’s negligence, in that though X’s
negligence caused her injury, a whole host of other underlying and
intervening causes also brought about the circumstances resulting in her
injury, such as <insert list here>. Therefore, Y should not have an
action in negligence against X for <insert damage/injury here.>.

1.
2.
3. Argument for holding manufacturer liable – “X tortfeasor could argue that
he has no liability to Y for his injuries because of the lack of privity of contractual
relation (bc of it being a third party or resale), between himself and Y. However, it is
clearly foreseeable that X tortfeasor’s product would be sold to a dealer and then resold
to consumers, and it is just as foreseeable that any dangerous defect in that product
would cause injury to the consumer. The manufacturer of _____ gains economic
benefit from inviting consumers to purchase his product ______ in a way very
analogous to a business owner that gains economic benefit from inviting customers into
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his store. Therefore, just as a business owner has the duty to protect invitees from
unreasonably dangerous conditions within his store or other property, X-manufacturer
should have a duty to protect consumers from unreasonably dangerous conditions
within the product he sells. The manufacturer profited from the sale of ________, and
one should not earn profit selling dangerous products.
4. Y should be able to sue Xmanufacturer for negligent
design/manufacture of the product. This would require finding the manufacturer
owed Y a duty, breached the duty and that the manufacturer’s breach caused the
accident and damages. A reasonable manufacturer should not design or manufacture
his products in a way that causes unnecessary risk of physical harm to consumers, and
he should discover any such dangerous flaw if there is one. It is foreseeable that such a
faulty design or improper manufacture would cause Y's injuries, (especially because the
product is inherently dangerous INSERT THIS IF INHERENTLY DANGEROUS). Though it
might be technically impossible to prove that faulty design or manufacture did in fact
cause the product to react this way and result in injury, such an unusual circumstance
(INSERT UNSUAL CIRCUMSTANCE HERE) would not ordinarily happen unless something
were defective on the product to cause the situation. Lacking any evidence that Y or
another tampered with the product in a way to make it defective, it can be inferred that
the product came defective. And the element of causation should then be able to be
established though inferences made res ipsa loquitur, or from an expert witness
testifying that negligence in the manufacture is the only likely cause, if other more
concrete evidence of faulty manufacture cannot be found. Thus, each element of
negligence should be able to be established, and X-manufactor should be held liabile
for Y’s injuries under a theory of negligent product manufacture or design.
2. Even if the court did have trouble establishing each elementrequired for
a finding of negligence, the product’s defect should invoke a theory of strict liability,
either through implied warranty or tort. X’s product should have an implied warranty to
function as it was meant to, and not in a way that (insert what happened here), and
presents unnecessary risk to Y (or any consumer). Y should be able to collect on
damages to his person from the breach in this implied warranty. Unlike negligence, in
strict liability in tort, the plaintiff is not required to demonstrate the faulty conduct of
the maker or other seller, but is required to impugn the product itself, as being in a
defective condition unreasonably dangerous. Restatement (Second) 402A. A
dangerously defective or unsafe product can be a product that has a flaw or defect that
was present at the time it was sold, a defective design, or failure to adequately warn of
the risk about the way the product was designed. A flaw created in the marketing
process or construction process then makes ____ liable as a matter of law. In the case
Henningsen v. Bloomfield Motors, the only evidence required for recovery against the
manufacturer was that the victim’s car swerved off the road after the victim heard a
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crack and the steering wheel spinning, and the automobile then swerving out of
control.
3. (INSERT EVIDENCE OF THE FLAW HERE) then, should be enough to infer a
dangerous flaw, and the Y should be able to recover against the manufacturer of the
product.
4.
5. WRITE SOMETHING LIKE THIS ON YOUR FINAL – DON’T FORGET
ABOUT PRIVITY OF CONTRACT… AND IMPLIED WARRANTY !!!!EXTRA ISSUE
POINTS!!!!!
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