 always see if you can bring §1983 claim before common law

 Also always see if tort was within scope of employment – Respondent Superior

INTENTIONAL TORTS

Was there intent? (subjective analysis)

 Acted with purpose of producing that act/consequence OR
 Acted with substantial certainty that that act/consequence would occur

IF NO – NO INTENTIONAL TORT. GO TO NEGLIGENCE.

IF YES –

 Establish that DD did an act directly/indircetly– voluntary, not reflexive

What type of intent?

 DD meant to cause/apprehension of imminent h/o bodily contact with a direct/indirect act?
 If h/o bodily contact occurred  Battery
• Dual Intent (majority) –intent to cause bodily contact that is h/o
• Single Intent (min) – only need intent to cause bodily contact
• kids >4, + mental challenged ppl capable of battery
• apprehension not req., can apply to ppl who are unconscious for eg. (rape)
• extended personality rule: bodily contact = anything connected w PP’s person
• thin skull / extended liability rule: resp. for all injuries/consequences of your contact
• offensive only if it offended plaintiff & would offend r.p.
• hypersensitivity not to be taken into account unless DD. knew about it.
 Actionable as soon as invasion occurs – min. nominal damages; punitive if prove malice
 If apprehension of imminent h/o bodily contact occurred  Assault
• apprehension = awareness,!=fear;
• must be imminent;
• words w/context may be enough for apprehension
• r.p. standard, unless DD knows of something special
(Transferred Intent applies to both battery and assault)

 DD meant to confine PP within a boundary?

 Confinement results?
 PP is conscious?  False Imprisonment
 OR PP is harmed/injured by it?  False Imprisonment
• threat not enough; length of time relevant for prima facie- only for damages
• bounded area has to be more than mere inconvenience; not bounded if there’s a
reasonable means of escape PP knows about.

 DD meant to or took a high-risk chance of causing severe emotional distress to PP?

 Did PP actually suffer? AND
 would R.P. in PP’s shoes also suffer?(unless DD knew of special susceptibility) IIED
• thin skin / extended liability rule – DD liable even if PP suffers more than he intended
• no mental defects taken into acct.
• factors: a) repeated conduct, b) abuse of pwr, c) DD exploiting knowledge of vulnerability,
d) Type of PP (kids, old ppl, preggers), & e) Type of DD (innkeepers, common carriers)
 Need to be able to prove damages
 DD’s intentional act towards 3rd person caused severe emotional distress to PP?
 Immediate Family present at scene?
 Yes?  IIED
 fam not at scene? - exceptions (child molestation, terrorism)
  Strangers at scene?
 Did they suffer bodily harm?  IIED
 If strangers not at scene, no exception, no recovery

 DD wanted to enter a physical place/refuses to leave a place he lawfully entered?

 Entry occurs/continues  Trespass to Land
 DD wanted to do act & it was r.f. act would result in invasion of physical place
 Entry occurs by intangible object (smoke/gas)?
 PP suffers substantial damage to property  Trespass to Land
(Intangible Liability)

 DD wanted to substantially control/interfere w PP’s use of chattel

 That substantial interference/control results  Conversion

 DD wants to physically interfere w PP’s use/enjoyment of tangible/intangible personal

property (chattel)
 PP no longer has that personal property (chattel)  Trespass to Chattels
 OR chattel is impaired in condition/quality/value Trespass to Chattels
 OR PP is deprived of use of chattel for substantial period of time  Tres. Chattel
 OR Bodily harm to PP OR person/thing in which PP has legally protected interest
 Trespass to Chattels

NEGLIGENCE
There was no intent to cause the harm, the harm was caused by DD’s negligence.

1) CAN WE ESTABLISH DUTY – Q. for law.

Imp cases covered here:

i) Tarasoff (phsyciatrist @ patient who killed) ;
ii) Remy (child who sued mom while mom was pregnant w her) ;
iii) Palsgraf (limiting extent of liability to whom one owes a duty to the circle of
foreseeable risk- aka that extent wasn’t forseeable)
iv) R2d §314 (list of sp.relationships) ;
v) R2d §324 (person who initially didn’t have duty but takes charge and either a) fails
to exercise r.c. or secure safety OR b) discontinued aid or protection in a manner that
let the other person worse off.

Was DD the one who was negligent or was 3rd party negligent and DD failed to act/acted poorly?
Did the DD not act/not do anything?  Was there a duty? (Generally, no duty.) Nonfeasance
Exceptions/Situations where court would impose duty even tho initially no duty to act
 LANDOWNER CASE: Did the event occur on DD’s property?
(can sue also for renter or anyone who is on the land acting in the owner’s behalf)
 If yes, determine the status of person of entrant (invitee/licensee/trespasser) and
then ask what duty is owed to a person of that status.
 If DD a) opened up the land to public or b) if PP was on property for DD’s
pecuniary benefit  Invitee
 Duty of reasonable care to discover and make safe.
 No Duty to warn for danger that is open and obvious
 If invitee goes outside his area of invitation, he becomes a
trespasser or licensee.
 If PP had permission to be on property, like a guest, but there was no
pecuniary benefit involved Licensee
 Duty to refrain from wanton, willful, reckless, intentional behavior
towards licensee.
(can anticipate issues with licensee, otherwise licensee and trespassors are
essentially treated the same)
 If PP had no permission/were not invited  Trespassers (including child
trespassers)
 Duty to refrain from wanton, willful, reckless, intentional behavior
towards trespasser.
 No duty to inspect, repair, correct or make reasonably safe.
 If you created a risk, then there is limited duty
 If you didn’t create a risk, there is NO duty.
 Silley rule (majority) :  If discovered in a position of peril, then
DUTY r.c. to avoid injury (aka if dude was bleeding DD would
have duty)
(no duty to call aid for an injured person unless there’s a special
relationship or conduct that had endangered another.)
 R3d §52 : Flagrant Trespasser (Growing Majority)  If you
discvoer person who is imperiled and a) helpless or b) unable to protect
himself then you have duty.
 CHILD TRESPASSORS?
Consider Attractive Nuisance Doctrine: R2d, Torts § 339
(1965)(Majority rule)(Bennett, p. 387):
 LO is liable to child trespasser for physical injury to child
caused by artificial condition upon land. If: (ElEMENTS)
1) person knows children are likely to trespass onto
the land where the Risky Thing (RT) is;
2) the LO knows about RT and knows it poses a
serious risk to children
3) kids, bc they’re kids, don’t discover RT/don’t realize
the danger in trespassing onto land containing RT or the
risk in meddling with RT.
4) utility of RT+ burden of removing danger is slight
compared to risk to child injury AND
5) LO doesn’t exercise reasonable care to eliminate
danger/protect the kids
 Does the state/jurisdiction have a good/bad Samaritan statute?
  For eg: Vermont has a pure “bad Samaritan statute where “person who knows that
another is in grave physical harm is required to give reasonable assistance to the exposed person
unless a) rendering help would put person in danger/peril to himself, or b) assistance would interfere
with important duties owed to others, or c) if others are already providing care” Someone who does
this will not be liable for civil liability unless there’s gross negligence. Failure to abide by this results
in fine.
 Missouri: look at text, but basically, all medic professional wont be liable unless
there’s gross negligence. Can also help minors w/o parental consent in emergencies. People trained
in first aid can offer help to the degree their training qualifies them for. Mental health
professionals/avg person can help in suicide interventions.

 Figure out if statute is tort statute or criminal statute. Vermont statute is criminal
bc it imposes a fine. But remember, still can’t use for neg. per se unless it’s replacing a common law
duty.
 Does the jurisdiction have a dram shop statute?
 dram shop statute provides for no social host liability re furnishing of alcohol;
 all common law pre-empted.
 peer pressure, offer of money doesn’t change this, these aren’t exceptions to the
general rule?
 Generally however, even in states without these statutes courts have said
landowners/social hosts are not liable for injuries that drunk people cause to themselves or others
(note: as long as they don’t get involved. Remember that case where those 2 dudes tried helping
intoxicated girl, aka “assumed duty”, and then were held liable?)
NOTE N SAYS THERE SHOULD BE PUSHBACK AGAINST THIS. DOESN’T MAKE
SENSE TO LET SOCIAL HOSTS OFF THE HOOK FOR PROVIDING ALC TO MINORS
2—SUPPOSE there was a criminal statute making it illegal to furnish alcohol to
minor? Would Dram Shop law prevail or the criminal law? What law to follow in face of this
conflict?
ANSWER: Dram Shop is a CIVIL statute. Applies in TORT law. So, the CIVIL
statute will takes precedent over criminal statute in a civil case EVERY TIME!
3--SUPPOSE no dram shop statute BUT A CRIMINAL LAW. Can you use the criminal law as
negligence per se? NO! Cannot create a duty that did not exist at common law.
4) LO Duty to protect PP from 3rd party harm?

WHEN 3RD PARTY CAUSES HARM TO PP ON DD’S LAND. DD. DIDN’T DO ANYTHING SO
HOW DO WE IMPOSE LIABILITY?

NEED SPECIAL RELATIONSHIP – INCLUDES PRINCIPAL/AGENT RELATIONSHIP:

HAVE SR – Business owner held land open to public; now need to see foreseeability…

• General Duty Considerations:

1) “Moral, social, & economic factors, including:
•the fairness of imposing liability; the economic impact on the Δ & on similarly situated
parties; the need for an incentive to prevent future harm; the nature of Δ’s activity; the
potential for an unmanageable flow of litigation; the historical development of precedent; &
the direction in which society & its institutions are evolving.”
2) In case of nonfeasance: Is there some obligation to act?
3) The judge must also consider foreseeability
(Scope of duty is limited by what risks are reasonably foreseeable)

Four Tests:
1) Specific harm test
DD doesn’t ow a duty to protect patrons from violent acts of 3rd parties unless
he is aware of specific imminent harm
too restrictive
2) Prior similar incidents test
Evidence of previous crimes on/near the premises
3) Totality of circumstances test (MOST jurisdictions here
Takes additional factors into acct such as nature condition and local or land as
well as any other factual circumstances bearing on foreseeability.
Lack of prior similar incidents will not preclude a claim where the LO
knew/should have known that the criminal act was foreseeable.
Cts are more willing to see property crimes or minor offense as precursors to
more violent crimes.
4) Balancing test—adopted by Posecai, (& a few other jurisdictions(CA +
TN)(VERY similar to Hand r/u test — major criticism of the rule—see note 7 on p. 578;
R3rd rejects balancing test for this reason—see note 8, p. 579)
Balancing foreseeability of harm against the burden of imposing a duty to protect
against the criminal acts of 3rd person.
TN: Forseeability * gravity of harm must be balanced against burden imposed on
business to protect that harm
Posecai: the more the foreseeability and gravity of harm, the greater the duty of care
that will be imposed on the business.

Duty owed by schools to children – even extends to outside school bounds if school
has relationship to Defendant/danger
HOWEVER DUTY NOT EXTENDED TO ENTIRE SCHOOL – only to those who
had supervisory duties, at the time parental protection is compromised, and you know/should
know student is being abused – DUTY
Also going and coming rule – things that happen while going and coming from school
are not under umbrella of protection; UNLESS IT HAPPENED ON SCHOOL BUS – THEN
PROTECTED.
Nabozny:

Colleges generally don’t have duty –

Landlords generally don’t have duty to tenant – 4 exceptions:

1) R3d allows for landlord-tenant to be considered a ‘special reltionship’, some courts
like Ward reject
2) This means that “a party who realizes or should realize that his conduct has
created a condition which involves an unreasonable risk of harm to another has a duty to
exercise reasonable care to prevent the risk from taking effect.”… This is generally limited in
landlord-tenant cases to situations where ”a known physical defect on the premises foreseeably
enhanced the risk of that attack.”
3) plain old “foreseeability,” which would hold landlords “to a duty to protect
tenants from criminal attacks that were clearly foreseeable
 4) The fourth exception arises from the general tort principle “that one who
voluntarily assumes a duty thereafter has a duty to act with reasonable care.” (see note 2, p. 589
for the discouragement problem)
NOTE 2: MANY courts follow WARD DYING Majority. R3rd relationship opens
the conversation. Still need foreseeability.

1) Did the DD have a special relationship with the PP/victim?

Note: be careful about spousal liability – wife(interchangeable) is generally not regarded as
someone in a “special relationship” for all intents and purposes, not responsibly through not
creating risk or preventing husband from engaging in tortious conduct. – aka in all those wife
should have warned about husbands sex abuse history – NO DUTY TO ACT
 If yes, scan to see if it’s on list (R3d §40)– DUTY TO ACT
a) Common carrier with its passengers
b) An innkeeper with its guests
c) A business or possessor of land that opens its land to public
d) ER with EEs who while work
a. is either in imminent danger
}Between π & Δ?
◦If so = if π needs help, & Δ sees this, Δ must use reas care to assist π. BUT NOTE: the
danger/circumstances must somehow be connected/tied to the relationship (EX: Your employer sees you
downtown one day when you are off of work. You fall & can’t get up. Employer is NOT obligated to help
you in this circumstance
b. or are injured or ill and thereby rendered helpless
e) A school with its students
f) A landlord with its tenants
g) A custodian with those in custody
a. The custodian is required by law to take custody or voluntarily
takes custody of the other
b. if the custodian has a “superior ability to protect PP
<LIST NOT EXHAUSTIVE> <CAN INCLUDE OTHER S.Rs>
h) Farwell – “companions on a social venture”

◦590 (halfway house operator & attacker; Δ relationship with known

source of danger; duty to control)
◦Duty to control tenants: See note 4, p. 591. Duty there. NOT in
Ward. Consistent?
◦Spouses/family members (note 5 p. 592--very uneven treatment by courts
here) (What about Sandusky’s wife for rapes that occurred in her
home. Should she have known? Failure to act) HARD!!!!! WHY????
◦Children (Note on p. 592 — NOT easy to sue parents when they
ACT. Imagine when they DON’T act!)
◦
◦SEE ALSO—ER responsible for Employees? (Note on pp. 594-95)
◦

R3D
•The Public Duty Rule says police have NO DUTY TO ACT unless they “commit” to you in
some way
•
•Soooo—what does commitment mean:
•
•SCENARIO:
•Someone is at your house threatening your physical safety; you call police.
•1) They do not come
•2) They go to wrong address.
•3) They come but do nothing.

SEE HANDOUT ON PUBLIC DUTY RULE

•This doctrine establishes the general principle that a governmental agency owes duties to the
public at large rather than to individuals. Thus, the duty element of a negligence claim against
a governmental entity cannot be established by showing a duty owed by a governmental entity to
the public at large.
•
•This public duty doctrine, as applied to policing functions, means police officers generally owe
the duty of preserving the peace to the public at large rather than to any individual.

•To establish the duty element of a negligence claim against a governmental entity, a plaintiff
must show that a special relationship exists which gives rise to a special duty owed by the
governmental entity to a specific individual…
•
•
•(This consistent with the general rule that there is no affirmative duty to prevent a third party from
harming others absent a special relationship…)
•
•For purposes of the public duty doctrine, most courts have held that a special duty is owed by
a governmental agency to a specific individual in 3 instances:
•
•(1) a special relationship existed between the governmental agency and the wrongdoer (i.e.,
the wrongdoer was in the State's custody or care);
•
•(2) a special relationship existed between the governmental agency and the injured person
(i.e., the injured person was in the State's custody or care);
•or
•(3) the government agency performed an affirmative act that caused injury or made a specific
promise or representation that under the circumstances created a justifiable reliance on the part
of the person injured.
•

 If no, see if you can argue there was a special relationship, Farwell – DUTY TO
ACT
2) Did the DD have a special relationship with the 3rd party perpetrator?
 If yes, see if it’s one covered by class or can be argued  DUTY TO ACT
3) Did DD create the risk that caused PP injury?  DUTY TO ACT
Eg. Truck breaks down, truck left in the middle of the road; a person injured someone
else, say punches him or runs him over, they have an affirmative duty to protect
victim from additional injury; NOTE – It doesn’t matter if DD created the risk
through a non-negligent means.
4) If DD didn’t create risk and/or had no duty, did he get involved/try to help?
 DUTY
 If DD tried to help and failed to exercise reasonable care or provided aid and
then stopped leaving PP in a worse off position, he can be liable. §324 R2d
 If DD exercised reasonable care, he won’t be liable even if that
reasonable care ended up resulting in further injury (think rolling over someone so they could
breathe but aggravating their cracked ribs in the process – no reason to know of cracked ribs, and
even then breathing is more imp)
 However, see if jurisdiction has a Good Samaritan statute that would protect DD.
5) Was there a statute that required him to help?

DD acted/engaged in risk creating behavior  Misfeasance, Duty of rpp under circumstances to

minimize risk to all foreseeable plaintiffs.
1) What is a risk creating behavior?
2) What would a r.p.p. have done in the circumstances?
3) Why was the PP foreseeable?

EXCEPTIONS:
 Would liability for all foreseeable injury from neg. acts impose a v. heavy burden on def.?

Is there duty imposed by a civil statute?  Neg. per se

Was the victim forseeable or unforeseeable?

 If unforeseeable (exception: rescuers who are on the scene due to Def’s negligence), PP
always loses, NO CLAIM UNDER NEGLIGENCE
 If forseeable, continue,

Is there duty imposed from common law?

Does it come from Common Law or a Statute?
If statute  Negligence Per Se
If common law 
 What would another r.p have done in in the same situation?

a)
b)
c) Was the PP forseeable?

1) Does the DD have duty towards P to exercise care of a reasonable/prudent/ordinary person under
the circumstances, to minimize the risk of harm to a forseeable PP?

Nonfeasance and §1983

 If state official failed to act, think of 1983 Deshaney

 no liability bc cont protects people from gov not from eachother
exceptions:
 1) state created danger rule (Dahmer case)
2) if state has taken you in (orphanages/prisons/…)
 can have a state tort law depending on voluntary undertaking

NEGLIGENCE PER SE

1) Only tort/civil statute can create a cause of action. If not tort/civil – it CANNOT create a cause.

2) If not a tort/civil statute, aka will likely be a criminal statute, ask IF THERE IS A CAUSE OF
ACTION/DUTY at common law – can try for neg. per se. – need to convince a judge to use
it.
Aka FIND THE COMMON LAW DUTY and see it the duty in the statute is similar enough
to allow the duty to be switched over.

BREACH OF DUTY

DEFINITION:
 Failed to exercise the care a reasonable person would under same or similar circumstances

LEARNED HAND RULE: P X L>B

 P=Probability of Risk of Injury
 L=Magnitude (Gravity) of Risk
 B=Burden (on the actor charged w/ neg.) of adequate precautions (including evaluation of
current social utility of actor’s conduct)

STANDARD OF CARE:
 Store manuals not enough unless they are related to safety - then may be admitted as
evidence of compliance
 Custom evidence is admissible, jury can talk about it; however custom evidence tends to set
the "floor" - rpp could have/should have done more than that
 Aka custom evidence!= prescribed standard of care
 No custom yet - or any argument that no one does that, is not admissible.
 "others too slack"
1. Could D have taken another course of action to avoid risk? Just b/c something different
could’ve been done doesn’t mean D has to
2. D must anticipate the environment its conduct/product will occur in, and design and act to
prevent reasonably foreseeable risk (Bernier v. Edison)
3. Company’s handbook that holds company to a higher standard of care does not alter the legal
duty of care
 RES IPSA LOQUITER

- Inference that jury can choose to accept

- Elements
o No other causes
o Neg. was within Def.’s duty
 Aka Def. had control at time of injury.
 Courts normally apply loosely
o Event ordinarily wouldn’t occur in the absence of negligence.
- Typically RIL is limited to 1 def unless 2 parties have an ongoing personal relationship
pursuant to which they share responsibility for a dangerous activity, and if an accident
happens est. neg. on one of them, imposing RIL on both is proper (R3D) ;
o also has been expanded when number of defendants is relatively small, and all other
potential clauses have been eliminated.

There is now negligence. Let’s see if there’s liability

ACTUAL CAUSE: PP must prove DD actually caused harm

Actual cause and proximate cause are jury questions unless it can be uncontrovertibly proven that

Figure out what injury you have first – Divisible (Cause Apportionment) or Indivisible (Fault
Apportionment), then apply actual cause test
- GR: but – for
- Otherwise Substantial Factors test

- no defense that you’re only a little bit responsible. Being ‘a’ cause, even if not sole cause, is
enough.
Multiple DDs
- <every injury in negligence fact pattern – zoom in on injury, how many, who caused?>
o Is the injury divisible or indivisible?
o Divisible
 Aka if injuries are separate, liability can be imposed based on causation. Each
DD will be liable for the harm they caused and no more
o Indivisble
 Both DDs conduct contributes to a single injury, use fault apportionment
 Q is do we use joint and several liability with possible contribution OR
Several/Proportionate fault liability?
 JOINT AND SEVERAL
  PP can choose to bring her claim against either DD, a few DDs or all
DDs (not more than full damages).
 Most states allow that DD to obtain contribution from the other DD so
as to make its payment proportional.
 Useful for PP in cases where the other DD doesn’t have insurance or is
immune to tort liability – they get the full amount and the other DD
can figure out. – Not very fair but
 SEVERAL/PROPORTIONATE
 No tortfeasor is liable for more than their proportionate share.
- Comparative fault – if PP was also negligent her recovery will be reduced in proportion to
her fault (also true in strict liability cases)

—A) 2 causes of separate injuries. How are those 2 wrongdoers held accountable?
-ANSWER: Note 1, p. 223. If injuries “divisible,” each Δ liable for what it caused. Called
“causal apportionment.”
-
—B) 2 causes of a single injury. Now what?
-ANSWER: Note 2, p. 223. This is an “indivisible” injury. Can’t apportion by cause now; use
fault apportionment.
-
—C) Multiple causes, some injuries divisible, some not
-ANSWER: Note 4, p. 224. Combo causal & fault apportionment.

—D) Can one be liable even though NOT A CAUSE of ANY injury to the π ?
-ANSWER: Note 6, p. 225. YES! EXAMPLE is Respondeat Superior: ER liable even though
NOT a cause at all. Strict Liability. Employer is entitled to indemnification from the
employee.

1. “But-For” Test: “But for D’s conduct, P’s injury wouldn’t have occurred”
a. Note: doesn’t matter if D’s conduct was justified/played a larger role in something.
That may affect liability but won’t affect the question of causation.
2. Substantial Factor Test: D’s act played a role in causing the actual harm, then D’s action was
a substantial factor
a. BUT FOR test often fails when there are multiple independent sufficient causes—
consider Landers & Anderson as examples. It fails in other kinds of cases as well
where you know the Δ was a factual cause but the “but for” would allow Δ to
escape responsibility.
b. Court asks in these cases whether π should lose for failure to satisfy the test when
clearly the Δs are factual causes of π’s injury. Many say no & allow πs to use the
substantial factor test.
c. Purpose of the substantial factor test is to denote the fact that the Δ’s conduct has
had such an effect in producing the harm as to lead reasonable people to regard it
as a cause. Language varies in various jurisdictions: some say substantial factor;
others: material factor, contributing factor.
d. NOTE:
•1--Restatement 3rd version (Note 3 on p. 231): “if the tortious conduct of one tortfeasor
fails the but for test only because there is another set of conduct also sufficient to cause the
harm, that defendant’s conduct is STILL a cause in fact.”
 •2--MOST courts have not adopted R3d on this point yet. We will use BUT FOR &
SUBSTANTIAL FACTOR TESTS FOR OUR PURPOSES…

duplicative cause – 2 acts causing same result like if 2 companies dump waste in this lake
separately, each of their actions would have caused the fish to die, so but-for doesn’t really
work. In this case the cause is duplicative – recognize the tort even if some other tort would
have resulted in the same harm. – COURTS HOWEVER HAVE HELD THAT 1ST PERSON WHO GETS
THERE IS 100% RESPONSIBLE. 2ND ONE DESTROYS NOTHING – or like calculate the damages as
what did the second person really destroy when they got to that scene?

Liability when there are 2 or more DDs

Eg. Someone kills horse and leaves it on the highway. Another person negligently fails to see
horse and crashed. Both are liable to the passenger who was injured.
3. Alternate Liability Theory (Summers v. Tice): When small group of Ds, all are negligent, but
the harm can only have come from 1, but Ds (or it is impossible to know who actually
caused), burden shifts to D to prove it did not cause harm, all Ds that can’t prove did not
cause harm are liable for P’s damages (Doesn’t require Ds to have acted in concert).
4. Market Share Liability: When the class of potential Ds is large and there is no indication of
civil conspiracy, but there is an identical, fungible product that causes a signature disease
(DES Daughters Cancers), P can bring an action against a substantial share of Ds, and if
successful damages are apportioned based on the Market Share of the D during the time of
production
a. Sindell/Brown: Began as local market shares, shifted to national market shares,
allows Ds that can prove not cause to escape liability
b. Collins: Ds can prove not cause, then not liable, but Ds who can’t take on liability of
those who prove not cause so P doesn’t suffer a reduction
c. Hymowitz: Based purely on marketshare. Even if D can prove not the cause, still
liable
5. Enterprise Liability (Minority Rule): Similar to Civil Conspiracy
a. Concert of action between businesses in an industry to hold all liable
6. “Loss Chance” (Medical Cases Only): When the negligent care of Dr. causes the loss of a
better chance of outcome for P, P can bring action where the “lost chance” is the injury.
Damages typically awarded in proportion to the % chance lost (60% to 20%=40% recovery)
and some jurisdictions require the chance to need to have begun at above 50% for an
action.
7. Concert of Action: Implicit agreement by Ds (drag racing)
8. Increased Risk: 1) D negligent in a certain way; 2) P suffers type of harm caused by D’s
negligence; then D liable (Zuchowitz)

Did the conduct actually cause?

But for Δ’s negligence, would the injury π seeks to recover for have occurred? (this include
science: does DES cause the type of cancers π alleges? sponge in stomach cause stomach
cancer?)

•If multiple Δs – divisible v. indivisible?

•
•Divisible likely but for works; indivisible, then:
•
•Concert/Conspiracy/Joint tortfeasors concepts? Or needed both to get the injury? Then use
but for the joint conduct.
•
•Independent? Try but for. Simultaneous causes merger, each sufficient? Lasley’s substantial
factor test (contributing factor, not insignificant; played a role)
•
•What was caused?
•
•Did I burn nothing? Did I shorten the life of someone who was going to live 40 more years or 3
more years or 14 more seconds?

•Loss of a chance for survival? Better outcome?

•
•Did I deprived π of chance at better recovery? Subject π to increased future risk? MOST
courts ALLOW CLAIM IF the loss is more likely than not to occur (over 50%). Here:
•
•π proves Δ’s negligence more likely than not deprived π of more than 50% chance of survival
(or better outcome). Under 50%? Actual cause test fails.
•Minority (MOHR & DILLON): As long as you prove more likely any injury (or future
injury) caused – even if 2%, 10%, etc. π can recover.
•
•
•
•Who caused?
• Can π prove, more likely than not, this Δ caused? If not, should we help π? Consider Zafft
(GR), Summers/Alternate Liability Theory; Sindell/Brown & Hymowitz Mkt Share theories).
•

Element 4: Promixate Cause (PC)

}Proximate Cause is a POLICY matter! Δ was negligent & actually caused BUT should Δ be
legally responsible? From a policy standpoint: where do we draw the line???
}
}This is NOT a cause issue. We already know Δ is “actual cause.” Now, we are trying to see if
Δ should be responsible from a policy standpoint.

◦Key test: Scope of the risk

◦Uses: “risk standard”
◦
◦Asks: what are ALL of the foreseeable risks that made the actor’s conduct tortious? DID THE
HARM AT ISSUE RESULT FROM ONE SUCH FORESEEABLE RISK?
◦
◦Excludes: ANY risk unforeseeable at the time of the actor’s tortious conduct.
◦
}
◦FOCUS: What’s in the box--What made you negligent? Only if ONE of those things actually
occurs, are you liable. See note 2, p. 253
○Now—PC test: Scope of the risk: Look at what happened & ask if that is a result of the very
thing that made Δ’s conduct negligent. Did the risk that made Δ’s conduct negligent in the 1st
place actually manifest?
○
—B) Note 5(a) on 254: Melchor v. Singh:
○What are the risks of supplying defective ladder to worker? Did such a risk manifest?
○
—C) Note 5(b) on 254: Medcalf v. Washington & (Benaquista):
○What are the risks of broken intercom system—to guests; to tenants? Covered in both cases
here?

Where should liability be limited?

ž CARDOZO: At DUTY (Majority)

ž Duties are owed to certain people; i.e., people Δ can anticipate would/could be injured by Δ’s
negligence.

ž Palsgraf's PC test: direct cause-- Δ liable for any & all consequences, no matter how novel or
extraordinary (p.258)
ž
ž Carefully read notes, pp. 262-63.

ž ANDREWS: PROXIMATE CAUSE

ž
ž Duties are owed to the public at large, not just people we could anticipate would be injured by
our conduct.
ž
ž Liability should NOT be limited at duty level.

ž Andrews’ PC test: look at the catastrophe—what happened? Start there. Trace the
consequences, not indefinitely but to a certain point: Ask what might one ordinarily expect to
follow from the explosion (p. 261)
ž

SIDE NOTE: NOTICE DIFFERENCE BETWEEN FORESEEABILITY REQUIRED IN BREACH

AND THAT REQUIRED IN PROXIMATE CAUSE

Majority Rules Today:

Compare common law negligence & negligence per se

COMMON LAW NEGLIGENCE NEGLIGENCE PER SE

•Thompson: •The injury that occurs must be one that the
•Injury must result from risks within scope statute was designed to prevent
of the negligent conduct; i.e., the risk that •
manifests must be one that made Δ negligent • AND
in the 1st place •
 • •The person injured must be a person that
•AND the statute was designed to protect
•
•Palsgraf:
•π must be foreseeable

Can PP be expected to foresee recuers?

For non-professional rescuers: “ Rescuers are foreseeable AS MATTER OF LAW

Professional Rescuers – Firefighters rule

- •Your injured π is a: Firefighter (or ANY “professional rescuer” (police, emt,
lifeguards, etc.)--even off duty or volunteers (in case of many firefighters — were you
wearing your professional hat at time?)
- •
- •NOW:
- •
- •1—If you respond to an event, including emergencies, calling on your expertise
- •2--You attempt or do rescue & are injured while performing the rescue
- •3--You cannot sue the person whose “ordinary” negligence created the reason for your
presence (Firefighter injured fighting the fire in the Walgreens’ case– Walgreen’s EE
fell asleep w/ lighted cigarettes in garbage can resulting in fire. No claim against the EE
(OR WALGREENS under Respondeat Superior); lifeguard injured while attempting to
save person from drowning cannot sue person he saved).
- •
- •Dying but still MAJORITY RULE!!!!!!!!!!!!!!!
- W
- EXCEPTIONS~~~
- •
- •1) Δ engaged in willful, wanton or intentional conduct (Arson)
- •
- •2) Injury arises from violation of fire-safety statute or ordinance
- •
- •3) The injury results from risks not inherent in the job OR separate & apart from risk
bringing you to the scene the rescuer has undertaken
- •
- •Examples: Firefighter attacked by dog when arrives to fight fire; propane gas tank in
garage explodes while firefighter attempting to put out fire; EMT worked attacked by
drunk Δ he was helping out of a ditch after Δ crashed)
- •
- •4) Δ knew/should have known of the danger the professional rescuer faced & had
oppty to warn the professional rescuer but did not.

Proximate Cause is limitation on liability. Aka: “Scope of Risk?”

•1) Palsgraf:
•Duties are only owed to people the defendant could foreseen might be injured
by conduct. Limitation here: WHO the duty of care is owed to
•
•No duty owed to you? No negligence. “The law of causation, remote or proximate, is thus
foreign to the case before us.” THIS IS MAJORITY RULE (EXCEPTION: RESCUERS—
foreseeable “as matter of law” BUT: Firefighter’s rule …)
•
This case still is a limitation of liability case but views limitation as function of DUTY, not
proximate cause

•2)Thompson:
•Once you are at PC element, the “SCOPE OF THE RISK” test is this:
•
•Consider the risks that made the Δ’s conduct negligent in the 1st place & ask if the harm π
suffered is a result of a risk that made Δ’s conduct negligent. In Box/Out Box analogy.
MAJORITY RULE
•
A handful of jurisdictions use “DIRECT CAUSE TEST:” can you directly trace what Δ did to
what happened to π without too many any efficient, intervening causes that might have broken
the chain/connection? Direct cause is the PROXIMATE CUASE test Palsgraf would have
applied had π been foreseeable)

Assessing Scope of the Risk:

Is the Harm OUTSIDE of the scope of the risk because of the MANNER in which it occurs?

HUGHES
•Court says a foreseeable risk of Δ’s conduct
is that someone will get burned.
• •
•Someone did get burned. Not because of the
immediate fire but because of an
unforeseeable explosion which caused a fire.
• The chemical breakdown was a new and
•Did the unforeseeable explosion cause an
accident & damage of a different type which
could have been foreseen? No. The
explosion was simply a variant of the
foreseeable. Δ still liable.
DOUGHTY
•Court does not talk about the general risks
of the Δ’s conduct. Rather:
•1) Pearce:
•Splashes caused by sudden immersion was
the risk to be avoided. No splash occurred.
unexpected factor. NOT a variant of the
foreseeable.
•
•2) Harmon:
•Totally different kind of harm here.
•
•3) Diplock: No breach of duty:
•
•“. . . the Δ’s duty owed to the π in relation to
the only foreseeable risk, that is of splashing,
was to take reasonable care to avoid knocking
the cover into the liquid or allowing it to slip in
such a way as to cause a splash which would
injure π.
What if the injury that ACTUALLY occurred was unforeseeable?

ž As long as the injury to ankle was foreseeable, extent of harm (infection leading to amputation)
does not have to be foreseeable. This is the twin to extended liability rule. KNOWN AS THE
THIN SKULL RULE (take the π as u find him/her/they)
ž
ž At 1st blush, looks inconsistent w/ SCOPE OF RISK but it is NOT:
Scope of risk says injury from Δ’s conduct must be foreseeable. Thin skull then kicks in to find Δ
liable even though injury is much more severe than Δ anticipated. Severity of extent of the injury
does not have to be foreseeable.

“Ics:” Intervening Causes

—If the “IC” (ic = intervening cause) relieves Δ of liability, we say it “supercedes” Δ’s liability,
i.e., it CROSSES LINE. Δ NOT liable.
—
—If the “IC” does NOT relieve Δ = Δ is still liable for the injury DESPITE the IC’s!
—
—NOTE: the person responsible for the IC may be liable too.

When IC is Intentional or Criminal

ž MAJORITY is Marcus:
ž The intervening cause must be reasonable foreseeable
ž
ž Collins/STRONG minority/R3rd:
ž Were the injuries caused by the very foreseeable risk that made Δ negligent. If so, Δ is still liable.
ž
ž In other words: when your negligence creates risk X & risk X actually manifests, you cannot get
out of liability by saying it happened in a way that you did not anticipate or foresee (similar
language to what we discussed in the Hughes case).

Acts of god – R2D

•You are negligent because you have a sign hanging dangerously from building. Unusual and
unforeseeable wind comes along and blows sign down onto a person. Are u liable?
•
•YES!
•
•As long as the risk that made you negligent manifests, you are liable (if injury brought on by the
Act of God is same that made you negligent, you are responsible EVEN IF THE ACT OF GOD
WAS UNUSUAL, UNFORESEEABLE
•
•RECALL: THOMPSON DISASSEMBED TRAMPOLINE CASE:
•
•Assume an unforeseeable wind, storm came along and blew the trampoline on the highway. Δs
still liable as long as the ultimate injury is what made them negligent in the first place.
Summary

ž 1) Duties are only owed to foreseeable πs; rescuers foreseeable as matter of law. Watch out
for the “Firefighter’s Rule”
ž

ž 2) Scope of the risk is the major test: what are the risks of harm from your conduct? What
could you anticipate? Foresee? Precise manner need not be foreseeable.
ž
NOTE:

EVEN IF WITHIN SCOPE OF RISK, a court might say too much time has passed (pc includes
a “temporal dimension.” See case in note 8, p. 277.

•3) What if you have an Intervening Cause? The question is does it supercede?
•
•i) MAJORITY:
•was the IC a natural, normal, foreseeable consequence of the risk created by Δ’s conduct?
This applies to intentional, criminal AND negligent ICS.
•
•STRONG MINORITY (R3rd; trend):
•Liability is limited to those harms that result from the risks that made the actor’s conduct
tortious; this is regular scope of risk test; not as worried about HOW the injury happens—note
3, p. 275)
•
•ii) Suicide: SUPERCEDES unless . . .
•iii) Act of GOD: LIABILITY WILL NOT SUPERCEDE even if UNFORESEEBLE as long as
the injury that made Δ’s conduct negligent manifests.
•
• 4) THIN SKULL: As long as injury occurs from the foreseeable risk of conduct, Δ cannot
escape liability because the injury is greater than that which could have been foreseen (scope of
risk + thin skull doctrine—Hammerstein excerpt)
•
•
- future of ics as limitation on liability

See Note on p. 291: If the IC was unforeseeably caused by a negligent Δ; the 1st negligent actor
escapes liability. Second is on hook.
TREND: This is NOT FAIR. Now that we have COMPARATIVE FAULT (& ability of jury to
apportion fault), no need for this all or nothing approach. BOTH were negligent; both caused;
both should be liable.

SECOND INJURY CASES

ž NOT an IC but rather AFTER the Δ acts and AFTER the π is injured, π sustains a
SEPARATE second injury.
ž
ž Examples:
—Injured in ambulance going to hospital
—Injured in hospital from med malpractice of doctor/nurse (distinguish: basic negligence from
extreme recklessness…)
—Injured while dealing with the normal effects of Δ’s neg (fall on crutches vs. in cast)
—
ž General Rule:
ž If foreseeable, normal, natural, first actor (Δ) still liable. See, e.g., note 4 on p. 288.

INJURY
ž 1—Does π have evidence of an actual injury (π in RIGHT was in 5 OTHER car accidents so
proving that Δ caused was a challenge he failed to meet).
ž
ž 2—Is what π has offered an injury the court recognizes? Physical injury ok. Mental injury that
accompanies the physical (pain and suffering) = ok. What about a change in blood pressure or heart
rate, loss of brain cells, etc. Do these “count?”
ž
ž 3--Loss of Chance at a better outcome. Over 50%?
ž
ž 4--Pure emotional harm unaccompanied by an actual injury that was physically
caused? Phobias? Fear? Emotional distress? We discuss next week.
ž
ž 5--Pure property damages: Tort protects injury to persons and property (trespass to land,
chattels, conversion) but does not cover every kind of harm to property. Consider loss of business?
Loss of benefit of bargain? In other words, what if your harm to property actually is a pure
economic loss (you buy a phone that doesn’t work. Can you sue in tort? General rule = no. The
property interest invaded has to be connected to risks of unreasonable harm to others.
ž
ž 6—Can π PROVE Δ caused it
ž
ž 7– Damages possible from the actual injury inflicted (review chapt 1; see note 2, p. 217)
ž
ž 8—How to calculate the damages? What is the injury worth?

PURE EMOTIONAL INJURY???

ž TRADITIONAL RULE: NO!!!!!!!!!!!!!!!!

ž Had to have a physical injury that preceded the emotional harm; then emo damages
recoverable as “parasitic to” the “real” harm. See Mitchell, p. 625 & note 1 on p. 625.
ž
—Examples: Horse knocks π down, π suffers injury plus emo distress. X batters Y; X negligently
runs into Y breaking Y’s leg—π can recover for physical injury, pecuniary losses, p&s, and emo
distress —
—
—In these cases, the emotional distress “rides on the back of,” is “parasitic to” the “real” injury
ž
ž Other exceptions—Conduct threatening physical harm: assault, some privacy claims. Later
extended to IIED, etc.
—
•Historically –No!
•Exceptions:
•
•1) Ok if there is some physical impact on π (about 4-5 states today)
•2) Evolution: ok if physical manifestations w/ objective symptoms (minority today)
•AND
•
•SEVERE emotional distress must result:
•
•1) Must be such that the reasonable person, “normally constituted” would be unable to
adequately cope (once you get this THEN THIN SKIN covers the emotional response by that
is MUCH more severe than average person, normally constituted, would have experienced) &
•
•2) π must prove the distress (many courts continue to demand high proof of the distress).
•
•Where are we TODAY?
•
•

DIRECT VICTIM BYSTANDER

ž Negligent Conduct Directly Inflicting
Emotional Disturbance on Another:
ž physical injury.
—An actor whose negligent conduct causes
serious emo disturbance to another is subj to
liability to the other if the conduct:
— —An actor who negligently causes serious
—(a) places the other in immediate danger of
bodily harm & the emo disturbance results
from the danger (zone of danger πs )
—OR
—(b) occurs in the course of specified
categories of activities, undertakings, or
relationships in which negligent conduct is
especially likely to cause serious emotional
disturbance (expands on Burgess)
•Close Relationship: intimate familial
relationship w/ person who sustained
•
•Dillon, Thing, R3rd §48:
•
bodily injury to a 3rd person is subject to
liability for serious emotional disturbance
thereby caused to a person who:
—
○(a) perceives the event contemporaneously,
○
○and
○
○(b) is a close family member of the person
suffering the bodily injury (jurisdictions can
define for themselves. We will continue to
follow “Thing’s” limit since many adopted it;
that is: by blood or marriage, relatives
residing in same household, or
child/parent/siblings)
•

•Heiner & Boyles:

•
•With the exceptions of mishandling of dead bodies & death messages—see notes 2 & 4, pp 640-
41, there is NO general duty to prevent one from suffering an emotional injury without a threat of
physical harm
•
•That threat of physical harm is:
•
•--either to the π ( π was in the zone of physical danger)
•OR
•--to a person CLOSELY RELATED to the π.
•
•This requires physical danger to SOMEONE that you are “close” to: Thing defined as: close by
blood or marriage, relatives residing in same household, or child/parent/siblings.
•
•This also requires contemporaneous observance of the tortious conduct & a sense that the
conduct is then & there causing the physical injury

•Doctor erroneously tells patient that patient HAS AIDS. Patient does NOT. Patient suffers
severe emotional distress; gives away money; prepares to die; etc.
•
•Claim?
•Heiner/Boyles v. R3rd§47
•
•Doctor erroneously tells patient that patient has a disease that requires patient to take a
medication that causes patient physical injury. AIDS. Patient did not have the disease.
•
•Claim?
•Claim is not based solely on the misdiagnosis but the prescribing of harmful meds
•
•Doctor erroneously tells patient that patient does NOT have cancer. Patient DOES. Patient
suffers additional injury from not being treated. Also suffers severe emotional distress
•
•Claim?
•Actual injury here: 1) if cancer is more likely than not to occur or 2) MOHR: prove more likely
than not the whatever the %tage is will manifest (30% chance, etc.)

FEAR

Δ’s negligence causes you to suffer broken leg (car accident). You now have a phobia of cars.
Phobia recoverable?
Yes; Recoverable as element of emotional distress damage. Your testimony; expert as well.

What if Δ’s negligence causes you to be stuck in an elevator for 8 hours; you have phobia of
closed-in spaces.
Recoverable?

•Δ is doctor-misdiagnosis increased risk of cancer.

•
•Loss chance analysis. INJURY here: 26 states: more likely than not you will develop cancer; 24
states: as long as you prove more likely than not the injury exist (the 30% chance of contracting
cancer), you can recover.

•Doctor told you cancer when you did not have? Heiner/Boyles no; R3rd 47(b) = probably.

•Δ is a non-medical entity that has exposed you to cancer causing product (Potter). You don’t
have cancer. Under what circumstances will we allow this claim?
•
•ANS: prove you were exposed to the product AND reliable medical or scientific opinion that
cancer is more likely than not to develop.
•NOTE: This rule does MOT Apply if you have an actual physical injury! See NORFOLK.
•
•2) Fear HIV?
•ANS: Physical injury alone NOT ENOUGH! Need proof of actual exposure through a
medically sufficient channel. Damages limited to FEAR during WINDOW OF ANXIETY—6
months

NEW TORT: Loss of Consortium

•SLOWLY changing (see notes) but this is still minority.

•
•2--As a result, my personal relationship w/ injured person was damaged. Our company,
support, services, love, companionship, affection, society, sexual/intimate contacts, solace, etc.
suffered
•
•THAT’S IT.
•
•NOTE:
•1--The claim is DERIVATIVE! (if the spouse loses the first claim—was not tortiously injured
for ex, or was comparatively at fault in contributing to the injury, etc. this directly affects the
loss of consortium claim
•
•2—PARENTS/CHILDREN:
•
•BOUCHER: Can parents bring loss consortium claims when child injured? Held: NO.
•TODAY: Most continue to deny although growing group allows with young children
(formative years rationale). See notes 6-8, pp. 636-37.
•Can child sue if parent injured? Difference?
•SLIGHT MAJORITY now allow minor (BUT NOT ADULT) child to recover for the loss of
the parent’s consortium although this is arguably more troublesome since one act of negligence
can result in multiple loss of consortium claims—I have 5 children for example. If someone
negligently injures me…

•Injury negligently caused to fetus. Can fetus recover for the physical (and emotional
injuries)?
•
•DEPENDS on WHO injures the fetus:
•MOM: NO
•ALL OTHERS: YES! Most allow claims for injuries to fetus if the fetus is subsequently born
alive. Someone on baby’s behalf will bring a negligence action against non-mom Δ
•
•There USED to be a viability requirement—fetuses was capable of sustaining life on own at time
of injury—usually starting around 20 weeks. MOST have REJECTED viability.
•
•What if the fetus is stillborn?
•See n 4, p. 655: Most courts will allow the claim under the state’s wrongful death statute IF:
•
•1) the wrongful death statute considers a fetus a person
•and
•2) the fetus was VIABLE at the time of the injury—was “alive” for purposes of the claim (usually
20 weeks).
•

•2) Preconception Negligence:

•Yes if HEALTH CARE professional caused the injury (MAJORITY)
•Much harder—most courts considering have found NO for non healthy care professional (drunk
driver hits cr with 16 year old. Injury to uterus. Causes birth defect in child she conceives 7 years
later)
•
•3) Wrongful Birth:
•Yes for “nonhealthy” babies. DAMAGES: NO damages for the ordinary expenses in raising a
child (wrongful birth parents wanted children & were prepared for the normal expenses
parents incur); YES to EXTRAORDINARY expenses as a result of the disability; NO
emotional distress damages. What if baby born “healthy?” See wrongful conception
below. Same treatment.
•
•4) Wrongful Conception (Negligent Sterilization):
•If healthy: The parents normally entitled to recover the medical expenses of the ineffective
sterilization procedure, the medical and hospital costs of the pregnancy, the expense of a
subsequent sterilization procedure, loss of wages, loss of consortium to the spouse arising out of
the unwanted pregnancy, and medical expenses for prenatal care, delivery, and postnatal care.
NO emotional distress.
•Not healthy: In the event of the birth of a child who suffers from congenital defects, which birth is a
result of an unwanted pregnancy arising out of a negligently performed sterilization procedure,
special medical and educational expenses beyond normal rearing costs should be allowed. It
should also be noted that the extraordinary costs of maintaining a handicapped child would not
end when the child reached majority. Emotional distress damages also allowed.
•
•5) Wrongful Life: BECAUSE OF YOUR NEGLIGENCE IN TREATING MY MOM, I WAS
BORN (would typically accompany a wrongful birth claim):
•MOST COURTS HAVE REJECTED. NO DUTY TO FETUS FOR This CLAIM.