Torts Course Outline Breaks Down Intentional Torts, Negligence, and More

Torts 180.02.
F15 Course Outline

Professor DeMott Fall 2015
Table of Contents
TABLE OF CONTENTS 1
INTENTIONAL TORTS 2
BATTERY & ASSAULT 2
TRESPASS 7
NEGLIGENCE 9
THE STANDARD OF CARE 9
DUTY 13
GENERAL 13
AFFIRMATIVE DUTIES 15
DUTIES OF LANDOWNERS 20
IMMUNITIES 24
BREACH 25
CUSTOM AND THE STANDARD OF CARE 25
NEGLIGENCE PER SE 26
RES IPSA LOQUITUR 28
CAUSATION 30
CAUSE IN FACT 30
PROXIMATE CAUSE 32
INTERVENING AND SUPERSEDING CAUSES 34
VICARIOUS LIABILITY 36
JOINT TORTFEASORS 37
INJURY 39
EMOTIONAL HARM 39
ECONOMIC HARM 43
LOSS OF A CHANCE 44
DEFENSES 45
CONTRIBUTORY NEGLIGENCE 45
LAST CLEAR CHANCE 47
ASSUMPTION OF RISK 48
STRICT LIABILITY 50
ANIMALS 50
DANGEROUS ACTIVITIES 51
PRODUCTS LIABILITY 54
ECONOMIC INJURY 60
ECONOMIC LOSS RULE 60
INTENTIONAL MISREPRESENTATION/FRAUD 61
NEGLIGENT MISREPRESENTATION 63
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Torts 180.02.F15 Course Outline
Intentional Torts
Battery & Assault
Main Topics
 Intent
o Intent to bring about harmful consequences can be classified in two ways: (1) action with
purpose to bring about the harmful consequences and, (2) action with knowledge that
harmful consequences are substantially certain to result
 Limits of the substantial certainty test
o Single-intent v. Dual-intent requirement
o Transferred intent
 Battery: Prima Facie Case
o Lack of Consent
 Damages
 Knowledge
 Child defendants
 Insanity
 No requirement of showing actual damages
 Defenses
o Consent (see comment d. to Restatement, 2d., §13)
 Formal or implied
 Can be withdrawn, but the withdrawal must be timely
 Must be “informed consent” to be a defense
 Presumed consent (emergency medical situations)
o Self-defense
Summary
In analyzing whether an act constitutes battery or assault, consider the interests protected by
the torts of battery (the interest in freedom from harmful or offensive bodily contact) and assault
(the interest in freedom from apprehension of a harmful or offensive contact).
Knowledge of the contact.
Restatements
Restatement, 3d., §1 Intent
A person acts with the intent to produce a consequence if
(a) The person acts with the purpose of producing that consequence; or
(b) The person acts knowing that the consequence is substantially certain to result.
Restatement, 3d., §2 Recklessness

A person acts recklessly in engaging in conduct if
(a) the person knows of the risk of harm created by the conduct or knows facts that make that
risk obvious to another in the person’s situation, and
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(b) the precaution that would eliminate or reduce that risk involves burdens that are so slight
relative to the magnitude of the risk as to render the person’s failure to adopt the
precaution a demonstration of the person’s indifference to the risk.
Restatement, 2d., §13 Battery: Harmful Contact

An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a
third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results.
Restatement, 2d., §16 Character of Intent Necessary

(1) If an act is done with the intention of inflicting upon another an offensive but not a
harmful bodily contact, or of putting another in apprehension of either a harmful or
offensive bodily contact, and such act causes a bodily contact to the other, the actor is
liable to the other for a battery although the act was not done with the intention of
bringing about the resulting bodily harm.
(2) If an act is done with the intention of affecting a third person in the manner stated in
Subsection (1), but causes a harmful bodily contact to another, the actor is liable to such
other as fully as though he intended so to affect him.
Restatement, 2d., §18 Battery: Offensive Contract

(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other
or a third person, or an imminent apprehension of such a contact, and
(b) an offensive contact with the person of the other directly or indirectly results.
(2) An act which is not done with the intention stated in Subsection (1)(a) does not make the
actor liable to the other for a mere offensive contact with the other’s person although the
act involves an unreasonable risk of inflicting it and, therefore, would be negligent or
reckless if the risk threatened bodily harm.
Restatement, 2d., §19 What Constitutes Offensive Contact

A bodily contact is offensive if it offends a reasonable sense of personal dignity.
Restatement, 2d., §21 Assault

(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of the other
or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension
(2) An action which is not done with the intention stated in Subsection (1)(a) does not make
the actor liable to the other for an apprehension caused thereby although the act involves
an unreasonable risk of causing it and, therefore, would be negligent if the risk threatened
bodily harm.
Restatement, 2d., §22 Attempt Unknown to Other
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An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact
does not make the actor liable for an assault if the other does not become aware of the attempt
before it is terminated.
Restatement, 2d., §31 Threat by Words

Words do not make the actor liable for assault unless together with other acts or circumstances
they put the other in reasonable apprehension of an imminent harmful or offensive contact with
his person.
Jurisdictional Distinctions
CO: Dual-intent requirement for battery. To be liable, actors must have intended the contact and
have intended it to be harmful or offensive. Minority rule.
UT: Single-intent requirement. To be liable, actors must have intended the contact, and the
contact must have been harmful or offensive, but actors don’t need to have intended the
offense/harm.
CA: Per state statute, a minor is liable for a battery regardless of the intent to injure (single-intent
requirement). The only relevant intent is that of doing the particular act in question. Allows for
compensatory damages, but not exemplary damages unless defendant is aware of the
wrongfulness of the act.
MI: Did not adopt the “substantial certainty” standard until 1986.
NC: In addition to following the Restatement definitions, NC follows common law principles
governing assault and battery. “An assault is an offer to show violence to another without
striking of a blow, and a battery is the carrying of the threat into effect by infliction of a blow.”
See Dickens v. Puryear.
Cases
Garratt v. Daily
46 Wash.2d 197 (1955)
Five year-old nephew pulled a chair out from his aunt as she was preparing to sit. The aunt fell
and injured herself. Nephew was found liable for battery. Nephew was substantially certain that
the aunt was planning to sit down in the chair and would fall (per testimony by his sister, as well
as the fact that he tried to put the chair back under the aunt before she fell).
Main Point: Substantial certainty!
Jackson v. Brantley
Court of Civil Appeals of AL, 1979.
Defendant Jackson’s four horses escaped to the neighbor’s property. In rounding them up,
Jackson was unable to halter two of them. In leading the horses onto the public highway, an
automobile spooked the un-haltered horses and a collision resulted. Driver of the car, Brantley,
brought suit to recover under state statute that “The owner of any animal shall not be liable for
any damages to any motor vehicle caused by a collision with such animal, unless it is proven that
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such owner knowingly or willfully put the animal onto the public highway where the collision
occurred. Held for the plaintiff.
Main Points: Court found that defendant’s past experience with horses on a public highway was
enough that he was “substantially certain” a collision would occur.
Beauchamp v. Dow Chemical Company

Supreme Court of MI, 1986.
Plaintiff filed a claim alleging that his exposure to “agent orange” in the workplace constituted
the intentional tort of assault. Supreme Court adopted the “substantial certainty” standard in the
determination of whether an action constitutes an intentional tort and remanded the case. The
substantial certainty standard provides that if the actor knows the consequences of an act are
substantially certain to occur and still goes through with the act, the law treats the act the same as
if the actor desired to produce the consequences.
Main Points: In response to this case, MI legislature amended the WDCA to include substantial
certainty in the definition of intentional tort. WDCA does not cover intentional torts by the
employer. Acting with the substantial certainty that consequences will result is the same as
desiring to produce those consequences.
Masters v. Becker
Supreme Court of NY, Appellate Division, 1964.
Plaintiff Masters and defendant Becker were playing in a truck bed when defendant pried
plaintiff’s fingers loose and defendant fell to the ground. Trial court instructed the jury that they
must find that the defendant intended to cause an injury in order to find liability. Reversed on
appeal. It is enough that the defendant intended the contact and the contact was offensive. It is
not necessary that the defendant intended to cause injury.
Main Points: To be liable, defendant must intend to cause the contact and the contact must be
offensive. Defendant does not need to intend the injury. That the defendant is a child is irrelevant
in this case.
Brzoska v. Olson
Supreme Court of DE, 1995.
Plaintiffs (38 former patients) filed suit against the estate of their dentist, alleging that contact
from the HIV-positive constituted battery. Court held that lack of consent is essential in
determining whether contact is offensive. Additionally, offensive contact is contact that would
offend a reasonable sense of personal dignity and is unwarranted by the social standards at the
time and place. Without actual exposure to HIV/AIDS, there is no offensive contact.
Main Points: Test for offensive contact (includes lack of consent). Intentional torts do not
require a showing of actual damages – did the judgment require the plaintiffs to show actual
damages or did it just require that they show proof of the contact (offensive contact in this case =
exposure to HIV/AIDS).
Dickens v. Puryear
Supreme Court of NC, 1981.
Defendant beat the plaintiff and told him to “leave the state of NC; otherwise he would be
killed.” Plaintiff brought suit for IIED because the statute of limitations for assault and battery
had passed. Court allowed the claim to go forward, holding that the threat did not constitute
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assault, anyway, because assault is the threat to show violence that puts a person in apprehension
of imminent contact.
Main Points: Assault requires threat of imminent contact, not threats of future harm. Pay
attention to the timeline of the threat/intent/harm.
Singer v. Marx
District Court of Appeal of CA, 1956.
Little Timmy attempted to throw a rock at Barbara, but the rock struck and injured Denise
instead. Timmy was liable to Denise under the doctrine of transferred intent.
Main Points: A tortfeasor is liable to harm caused to a third party under the doctrine of
transferred intent.
White v. Muniz
Supreme Court of CO, 2000.
An old woman with Alzheimer’s struck and injured the caretaker who was attempting to change
her adult diaper. Trial court instructed the jury that to be liable the defendant must intend both
the contact and that the contact is offensive. Supreme Court affirmed that this is consistent with
CO’s dual-intent requirement for battery. The insanity of the defendant is irrelevant. Minority
Rule.
Main Points: Insanity is not a defense to an intentional tort (though it may make it more difficult
to prove the element in a dual-intent requirement that the defendant knew the contact was
harmful/offensive). The particular harm does not matter – the fact the defendant intended any
harm at all is enough to establish liability. The actor is liable for all actual damages, not just
those that were intended.
Hellriegel v. Tholl
Supreme Court of WA, 1966.
Friends were roughhousing at the lake when plaintiff proclaimed, “You couldn’t throw me in
even if you tried.” When defendants tried to throw him in the lake, one of the defendants fell
onto the plaintiff and broke the plaintiff’s neck. Nonsuit.
Main Points: Battery is offensive contact without consent. Consent can be a defense to battery.
Additionally, the fall onto the plaintiff was accidental (not intentional).
Mulloy v. Hop Sang

Supreme Court of Alberta, 1935.
Defendant’s hand was severely injured in an accident. At the hospital, defendant twice told the
doctor not to amputate until his regular doctor could see the injury. Doctor amputated the hand
then sued when the defendant refused to pay for the operation.
Main Points: Document consent!
Lane v. Holloway
English Court of Appeal, 1967
Plaintiff is 64 years old and defendant is 23 years old. After a verbal altercation, plaintiff
challenged defendant to a fight and punched defendant in the shoulder. Defendant responded by
punching plaintiff in the eye causing severe injury, and claiming self-defense. Is the defendant’s
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“blow” an assault? Yes, because participants in a fight assume the risk of injury in the fight but
do not assume the risk of injury of a “blow out of all proportion.”
Main Points: Provocation is relevant to punitive damages, but not to compensatory damages;
Scope of consent; Limits of self-defense.
Silas v. Bowen
U.S. District Court, District of SC, 1967.
Defendant owned a parking garage, plaintiff arrived at garage and was upset regarding a broken
down vehicle. Plaintiff (6’6” NBA player) became upset and defendant (5’6” man) asked
plaintiff to leave. Plaintiff approached the defendant in a “threatening” manner and defendant
shot the plaintiff in the foot. Plaintiff brought suit for assault and battery. Held for the defendant
on the grounds of self-defense.
Main Points: Use of deadly force is authorized if there is a reasonable threat to bodily harm.
Lots of discrepancies in the case, shows the power of the trier of fact. Note the plaintiff’s status
change from invitee to trespasser when he does not comply with defendant’s requests to leave.
Trespass
Main Topics
 Land and Chattels
o Intent/lack of intent to cause damage does not matter – only intent to enter matters
 Damages
o No actual damages are necessary
o Intent to cause damage is not a requirement, just intent to enter the land
o Knowing that the possessor does not consent is not necessary for an actor to be liable, but
it can result in higher damages against him
o Nominal damages for dispossession of chattels
o Toothbrush
o Conversion
 Defenses
o Consent
o Self-defense of person or property
o Necessity, public and private
Summary
Restatements
Restatement, 2d., §158 Liability for Intentional Intrusions on Land
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm
to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a duty to remove.
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Restatement, 2d., §163 Intended Intrusions Causing No Harm
One who intentionally enters land in the possession of another is subject to liability to the
possessor for a trespass, although his presence on the land causes no harm to the land, its
possessor, or to any thing or person in whose security the possessor has a legally protected
interest.
Restatement, 2d., §164 Intrusions Under Mistake

One who intentionally enters land in the possession of another is subject to liability to the
possessor of the land as a trespasser, although he acts under a mistaken belief of law or fact,
however reasonable, not induced by the conduct of the possessor, that he
(a) is in possession of the land or entitled to it, or
(b) has the consent of the possessor or of a third person who has the power to give consent on
the possessor’s behalf, or
(c) has some other privilege to enter or remain on the land.
Restatement, 2d., §217 Ways of Committing Trespass to Chattel

A trespass to a chattel may be committed by intentionally
(a) dispossessing another of the chattel, or
(b) using or intermeddling with a chattel in the possession of another.
Restatement, 2d., §218 Liability to Person in Possession

One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if,
but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in
which the possessor has a legally protected interest.
Cases
Brown v. Martinez
Supreme Court of NM, 1961.
Plaintiff’s two friends were in defendant’s garden stealing watermelons. Plaintiff was on the
highway to the southeast of the garden. Defendant, seeing the boys in the garden running to the
southwest but unaware of the plaintiff’s presence, fired a shot to the southeast, shooting the
plaintiff. Can the defendant be liable for a battery, even though he did not intend the contact (the
shot) and was not substantially certain that the plaintiff would be shot? According to the tort,
transferred intent under Restatement §16 does subject the plaintiff to liability for battery.
Main Points: Use of deadly force is authorized as self-defense where there is a reasonable threat
of serious bodily harm and use of deadly force is authorized to stop the commission of a felony.
Use of deadly force is not authorized to prevent or stop a misdemeanor or trespassing.
Ploof v. Putnam
Supreme Court of VT, 1908.
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Ploofs were sailing on Lake Champlain when a storm started, so the family moored the boat to
the Putnam’s private dock. The Putnam’s servant untied the boat and the Ploof’s brought suit.
Main Point: Necessity is an excuse for trespassing.
Vincent v. Lake Erie Transportation Co.

Supreme Court of MN, 1910.
During a storm, a ship had to remain moored to a dock out of necessity (a privileged trespass).
During the storm, the ship caused damage to the dock where its was moored. Dock owners were
able to recover the damage.
Main Point: A privileged trespass doesn’t excuse liability for actual damages caused during the
trespass.
Dissent: Claims that the dock owner assumed the risk.
Negligence
The Standard of Care
Main Topics
 Elements of negligence
o Duty
 General duty to:
 Act with reasonable care
 Refrain from exposing others to reasonably foreseeable risk
o Breach
 Judged from the objective standard of the reasonable man
o Causation
o Injury
 Plaintiff must show actual damages
o Harm within the scope of liability (proximate cause)
 Negligence can be either an act (driving too quickly) or an omission (failing to stop)  the
key is the conduct creates a risk to others
 What would a reasonable person in the same circumstances do?
o “Surrounding circumstances” can account for an actor’s age or mental capacity, but we
typically do not create a special standard of care
 Typically, standard of care = matter of law; determining whether defendant met the standard
= matter of fact
o To determine standard of care, the trier of fact can look to custom
 What is the ordinary person presumed to know?
o Holmes: “a certain average of conduct, a sacrifice of individual peculiarities … is
necessary to the general welfare.”
 Judge Hand’s balancing test from Carroll Towing: The burden of precaution is weighed
against the probability and gravity of the injury. If the burden of precaution is less than the
probability of injury and the gravity of the injury, the actor has a duty to take the precaution.
o Negligence law does not require perfection
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o This formula is for use in determining whether a breach has occurred, not in determining
whether a duty exists
 Special circumstances that affect the standard of care
o Emergency situations
 Emergency Doctrine - an emergency and the consequent need for speedy action will
typically be taken into account in determining what reasonably to expect from an
actor – See Note 5 on pp. 144-45
 Ex.: No liability was found for injuries caused by a taxicab when the cab driver
abandoned the moving cab because an armed robber entered it
o Child actors
 Children are typically judged by the standard of children of the same age and
experience (think of the difference between a child from the city on the farm v. the
farmer’s son in the same situation).
 Many jurisdictions hold that there is an age at which children are incapable of
negligence as a matter of law. The restatement says this age is 5, but it differs among
jurisdictions. See Note 1 on p. 136.
 Exception: children engaging in “adult activities” (driving, hunting) are typically held
to an adult standard of care.
 Charbonneau v. MacRury; Goss v. Allen
o Disabled actors
 Mentally and emotionally disabled actors are held to the objective standard of care in
all cases as a defendant – See Note 4 on pp. 143-44
 Physical disabilities v. mental disabilities – See Restatement, 3d., §11
 Diminished capacity is taken into account in determining contributory negligence
when the mentally disabled is a plaintiff – See Note 4 on pp. 143-44
 Plaintiffs may be contributorily negligent if they are aware of the diminished capacity
of the defendant
Summary
Restatements
Restatement, 3d., §3 Negligence
A person acts negligently if the person does not exercise reasonable care under all the
circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks
reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the
foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or
reduce the risk of harm.
Restatement, 3d., §6 Liability for Negligence Causing Physical Harm

An actor whose negligence is a factual cause of physical harm is subject to liability for any such
harm within the scope of liability, unless the court determines that the ordinary duty of
reasonable care is inapplicable.
Restatement, 3d., §9 Emergency
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If an actor is confronted with an unexpected emergency requiring rapid response, this is a
circumstance to be taken into account in determining whether the actor’s resulting conduct is that
of the reasonably careful person.
Restatement, 3d., §10 Children

(a) A child’s conduct is negligent if it does not conform to that of a reasonably careful person
of the same age, intelligence, and experience, except as provided in subsection (b) or (c).
(b) A child less than five years of age is incapable of negligence.
(c) The special rule in subsection (a) does not apply when the child is engaging in a
dangerous activity that is characteristically undertaken by adults.
Restatement, 3d., §11 Disability

(a) The conduct of an actor with a physical disability is negligent only if the conduct does
not conform to that of a reasonably careful person with the same disability.
(b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness
resulting from physical illness is negligent only if the sudden incapacitation or loss of
consciousness was reasonably foreseeable to the actor.
(c) An actor’s mental or emotional disability is not considered in determining whether
conduct is negligent, unless the actor is a child.
Restatement, 3d., §12 Knowledge and Skills

If an actor has skills or knowledge that exceed those possessed by most others, these skills or
knowledge are circumstances to be taken into account in determining whether the actor has
behaved as a reasonably careful person.
IL: One of the few states that requires the plaintiff to prove the absence of contributory
negligence as part of a prima facie negligence case. Minority rule – most states require the
defendant to prove contributory negligence.
AR: Refused to hold a minor engaged in hunting to an adult standard of care. – See Note 2 p. 142
Majority: Flexible presumption that a child under (about) 14 is incapable of negligence, but the
opposite may be shown in a particular case and flexible presumption that a child over (about) 14
is capable of negligence, but the opposite may be shown in a particular case.
Cases
Bolton v. Stone
Cricket ball is hit out of the stadium and injures a woman.
Main Point: Risk is so improbably and small, and burden of precaution is so huge (redesigning
stadium).
Vaughan v. Menlove
Court of Common Pleas (1837) – p. 121
Defendant’s hayrick caught fire and destroyed the plaintiff’s cottages. Defendant was aware of
the risk. His defense was that he was not as smart as the ordinary man.
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Main Point: Standard of care is judged from that of a reasonable man, and there is no variation
for a stupid defendant.
Delair v. McAdoo
Supreme Court of PA (1936) – p. 126
Defendant’s car had worn tires, and one suffered a blowout, causing an accident that injured the
plaintiff. Defendant was found negligent.
Main Point: It is negligent to drive with tires that have been worn through to the fabric and
lining. You don’t need an expert to show that worn tires are unsafe – there is knowledge that the
ordinary person is “presumed to know.”
Charbonneau v. MacRury
Supreme Court of NH (1931) – p. 129
Seventeen year old defendant was driving his father’s car when he struck and killed the three
year old child of the plaintiff’s.
Main Point: There is not a different standard of care for minors. The applicable standard of care
takes into account the “surrounding circumstances.” The age and capacity of the actor should be
taken into account as part of the “surrounding circumstances.”
Goss v. Allen
Supreme Court of NJ (1976) – p. 137
Defendant was a 17-year-old beginner skier who lost control on an abrupt left turn at the bottom
of the ski slope and collided with the plaintiff. Defendant did not call out to warn the plaintiff.
Main Point: Children are held to adult standards of care in certain dangerous activities that
require adult judgment (driving a car, hunting), but skiing is not one of those activities, so the
appropriate standard of care is that of a reasonable person of like, age, intelligence, and
experience under similar circumstances. The arbitrary line between childhood and adulthood
must exist somewhere.
Dissent: Skiing is dangerous so an adult standard of care would be appropriate. The line between
a 17-year-old and 18-year-old is arbitrary.
Haley v. London Electricity Board

House of Lords (1964) – p. 145
A blind pedestrian was unable to detect an excavation site, even with proper use of his stick, due
to inadequate warnings.
Main Point: To whom is a duty owed? Opinion looks at common knowledge of who might be
walking in the area (foreseeable plaintiffs!) and the burden of precaution.
Barker v. City of Philadelphia

U.S. District Court, E.D. of PA (1955) – p. 149
Garbage truck driver ran over a piece of brown paper on the side of the street, killing a child who
was playing underneath it.
Main Point: The driver was not required to know a child was under the brown paper. However,
since he knew that some injury might occur if he drove over the paper (a blown tire from running
over glass bottles?), exercise of reasonable care would have required him to do more in this case
(get out of the truck and look, be sure to avoid hitting the paper, take a detour).
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United States v. Carroll Towing Co.

Circuit Court of Appeals, Second Circuit (1947) – p. 153
The bargeman of the Anna C was away for 21 hours when the barge broke away and was
damaged. Defendant tugboat company could have prevented the damage. In determining whether
the owners of the Anna C were contributorily negligent for not having the bargeman on board,
Judge Hand delivered his famous “formula” to determining the existence of a duty.
Main Point: Judge Hand’s balance test comparing the probability of injury and the gravity of
injury with the burden of precaution.
Pitre v. Employers Liability Assurance Corps.

Court of Appeal of LA (1970) – p. 159
At a fair’s baseball toss game, a child was killed when a participant who was winding up struck
him in the temple. Expert testimony said that type of injury was so remote.
Main Point: Reasonable care only requires that an actor protect against an injury that is
foreseeable. In this case, the injury was so remote that it is unreasonable for the defendant to
have protected against it.
Duty
General
Main Topics
 Duty = a legal obligation = matter of law
o In most cases, duty (the obligation to act reasonably) is presumed
o Failure to warn can be a breach of duty
 Foreseeability: Most jurisdictions condition the risk-creation duty rule on foreseeability
o Courts that condition duty on foreseeability do so on either general foreseeability or
specific foreseeability
 Specific foreseeability = plaintiff-foreseeability, class of plaintiffs-foreseeability, or
injury/risk-foreseeability.  how narrowly the plaintiff/class of plaintiffs is defined
can be a challenge.
o Restatement does not include foreseeability as a factor in duty determination and says
that policy considerations are the only reason for making a no-duty/modified duty
determination. See Restatement 3d., §7, cmt i.
o Foreseeability is a fact specific question – should not be relevant to the judge’s legal
determination of whether there is a duty.
 Foreseeability should be part of the jury’s analysis of breach of duty and scope of
liability/proximate cause
 Inconsistent results can occur when a judge draws a different conclusion about the
foreseeability in a duty determination than the jury draws in its breach or scope of
liability conclusions
 No-duty/modified-duty/limited-duty determinations are a matter of law to limit liability,
while limitations on the scope of liability (proximate cause) are a matter of fact to limit
liability
 Examples of situations with no-duty/modified-duty determinations:
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o Landowners limited duty to trespassers
 Judge Hand’s formula from Carroll Towing  for use in the factual determination of
whether there has been a breach, not in the legal determination of whether there is a duty
Summary
Restatements
Restatement, 3d., §7 Duty
(a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct
creates a risk of physical harm.
(b) In exceptional cases, when an articulated countervailing principle or policy warrants
denying or limiting liability in a particular class of cases, a court may decide that the
defendant has no duty or that the ordinary duty of reasonable care requires modification.
Restatement, 3d., § 18 Negligent Failure to Warn

(a) A defendant whose conduct creates a risk of physical or emotional harm can fail to
exercise reasonable care by failing to warn of the danger if:
1. The defendant knows or has reason to know:
(a) Of that risk; and
(b) That those encountering the risk will be unaware of it; and
2. A warning might be effective in reducing the risk of harm.
(b) Even if the defendant adequately warns of the risk that the defendant’s conduct creates,
the defendant can fail to exercise reasonable care by failing to adopt further precautions
to protect against the risk if it is foreseeable that despite the warning some risk of harm
remains.
Restatement, 3d., §19 Conduct That Is Negligent Because of the Prospect of Improper Conduct
by the Plaintiff or a Third Party
The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or
permits the improper conduct of the plaintiff or a third party.
IA, AZ, NB, WI: Have expressly adopted the Restatement view that foreseeability is not a factor
in determining duty and that the risk-creation duty rule should only be departed from in the event
of countervailing principle or public policy. See Note 2 on p. 267.
AR, MN, NC, SC, SD: Foreseeability is the only relevant factor in difficult duty cases. See Note
2 on p. 267.
AK, FL, GA, IN: General foreseeability in duty determination. See Note 2a on pp. 273-74.
CA: Specific foreseeability. See Note 2b on p. 274.
TX: No social host liability
14
Cases
Thompson v. Kaczinski
Supreme Court of IA (2009) – p. 264
Plaintiff rolled his car after swerving to avoid a dismantled trampoline that had blown onto the
road from the defendants’ yard. Lower courts granted summary judgment for the defendants on
the ground that there was no duty because the injury was not foreseeable. Supreme Court of IA
adopted the Restatement view of duty determination.
Main Point: Court adopts the Restatement view that foreseeability of injury is not a factor for
making a duty/no-duty determination (it is just a factor in determining breach) and that public
policy is the only reason to make a no-duty determination.
Brown v. Kerr
Court of Appeals of KY (2010) – p. 269
“Breakfast of Champions.” Plaintiff’s son was shot and killed by the defendants’ son with the
defendants’ firearm. The court determined the defendants owed no duty to the plaintiffs.
Main Point: Court bases the existence of duty on the general foreseeability of harm.
Palsgraf v. Long Island Railroad

Court of Appeals of NY (1928) – p. 276
Plaintiff was injured by a set of scales that fell when a package carrying fireworks fell onto the
train platform and exploded.
Main Point: 4-3 opinion. Cardozo says duty is “relational” and is only owed to those who it is
reasonably foreseeable may be harmed by an action (plaintiff-foreseeability) because they are in
the “range of apprehension.” There was no duty in this case because the plaintiff was not a
reasonably foreseeable victim.
Dissent: Andrews takes the broad view that duty is “act-centered” and owed to society in
general. Foreseeability does not matter (this is the Restatement, 3d., §7 approach).
Strauss v. Belle Realty Company

Plaintiff fell down the stairs of the basement during a blackout. Court held that the electric
company owed no duty to the plaintiff in the public area of the building because there was no
contract to provide electricity directly to the plaintiff in that space. No duty determination was
made to protect the defendant electric company from “crushing” liability.
Main Point: No duty imposed on public utility based on public policy.
Graff v. Beard
Supreme Court of TX (1993) – p. 349
Plaintiff was injured by a drunk driver and brought suit against the social hosts.
Main Point: No duty imposed on social hosts as a matter of public policy.
Affirmative Duties
Main Topics
15
 “No-duty-to-rescue” rule: general rule is that there is no duty to warn, protect or rescue
another from a risk created by some other source.
o Public policy rationale: we do not want to compel a person to act against his will
 Affirmative duties (exceptions to the “no-duty-to-rescue” rule) are imposed when:
o There is a pre-existing special relationship between the plaintiff and defendant. (§40)
 Whether special relationships create an affirmative duty is a matter of law (in the
majority of jurisdictions). However, certain factual disputes regarding a relationship
should be resolved by the jury (e.g. whether a plaintiff was a paying guest or a
trespasser is a question of fact for the jury).
o The defendant voluntarily promised aid to or came to the aid of the plaintiff. (§42)
 Restatement calls this an “undertaking.”
o The defendant created the risk, tortiously or not, from which the plaintiff required aid.
(§39)
 Continuing duty to protect against a risk one created for as long as that risk exists.
 This is different from the duty to exercise reasonable care while participating in
conduct that creates risk (§7). This duty continues even after the risk creating conduct
ceases. See comment d to Restatement, 3d., §39.
o The defendant had a special relationship with a third party who caused harm to the
plaintiff. (§41)
 This is not vicarious liability. It is liability for not acting reasonably to warn or protect
the plaintiff from a third party when the defendant knew that the third party posed a
risk.
o A statutory duty is found sufficient to justify the imposition of a negligence duty. (§38)
 Misfeasance – an act which the actor as a reasonable man should recognize as involving an
unreasonable risk of causing an invasion of an interest of another
o An affirmative act that creates a new risk of harm, imposing the “general” duty of care
on the actor
 Nonfeasance – a failure to do an act which is necessary for the protection or assistance of
another and which the actor Is under a duty to do or an omission of an act that causes no
further harm nor benefit
o The duty arises from a special relationship between plaintiff and defendant
 Affirmative duty of a volunteer rescuer
o Duty not to increase the risk during rescue or leave the person worse off
 Is this just an application of the risk-creation rule?
o Duty not to interfere with a rescue
o There is no duty to continue a rescue with the exception that the rescuer cannot abandon
the rescue unreasonably if the other is still in danger
o Whether a defendant voluntarily undertook the rescue of the plaintiff is a question of fact
 Good Samaritan acts insulate professional medical care providers from civil liability when
rendering care in emergency situations.
 Promises and duty
o In some cases promises have been shown to create a duty either based on the special
relationship created by the promise or the notion that a promise constitutes a voluntary
rescue – see note 9 on p. 316.
Summary
16
Restatements
Restatement, 2d., §314
The fact that the actor realizes or should realize that action on his part is necessary for another’s
aid or protection does not of itself impose upon him a duty to take such action.
Restatement 3d., §37 No Duty of Care with Respect to Risks Not Created by Actor
An actor whose conduct has not created a risk of physical or emotional harm to another has no
duty of care to the other unless a court determines that one of the affirmative duties provided in
§§38-44 is applicable.
Restatement 3d., §38 Affirmative Duty Based on Statutory Provisions Imposing Obligations to
Protect Another
When a statute requires an actor to act for the protection of another, the court may rely on the
statute to decide that an affirmative duty exists and to determine the scope of the duty.
Restatement, 3d., §39 Duty Based on Prior Conduct Creating a Risk of Physical Harm
When an actor’s conduct, even though not tortious, creates a continuing risk of physical harm of
a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or
minimize the harm.
Restatement, 3d., §40 Duty Based on Special Relationship with Another

(a) An actor in a special relationship with another owes the other a duty of reasonable care
with regard to risks that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in subsection (a) include*:
1. A common carrier with its passengers,
2. An innkeeper with its guests,
3. A business or other possessor of land that holds its premises open to the public with
those who are lawfully on the premises,
4. An employer with its employees who are:
(a) In imminent danger; or
(b) Injured or ill at work and thereby rendered helpless,
5. A school with its students,
6. A landlord with its tenants, and
7. A custodian with those in its custody, if:
(a) The custodian is required by law to take custody or voluntarily takes custody of
the other;
(b) The custodian has a superior ability to protect the other.
*Comment h implies this list is not exclusive.
Restatement, 3d., §41 Duty to Third Persons Based on Special Relationship with Person Posing
Risks
(a) An actor in a special relationship with another owes a duty of reasonable care to third
persons with regard to risks posed by the other that arise within the scope of the
relationship.
(b) Special relationships giving rise to the duty provided in subsection (a) include:
17
1. A parent with dependent children,
2. A custodian with those in its custody,
3. An employer with employees when the employment facilitates the employee’s
causing ham to third parties, and
4. A mental-health professional with patients.
Restatement 3d., §42 Duty Based on Undertaking

An actor who undertakes to render services to another and who knows or should know that the
services will reduce the risk of physical harm to the other has a duty of reasonable care to the
other in conducting the undertaking if:
(a) the failure to exercise such care increases the risk of harm beyond that which existed
without the undertaking, or
(b) the person to whom the services are rendered or another relies on the actor’s exercising
reasonable care in the undertaking.
Restatement 3d., §43 Duty to Third Parties Based on Undertaking to Another

An actor who undertakes to render services to another and who knows or should know that the
services will reduce the risk of physical harm to which a third person is exposed has a duty of
reasonable care to the third person in conducting the undertaking if:
(a) the failure to exercise reasonable care increases the risk of harm beyond that which
existed without the undertaking,
(b) the actor has undertaken to perform a duty owed by the other to the third person, or
(c) the person to whom the services are rendered, the third party, or another relies on the
actor’s exercising reasonable care in the undertaking.
Restatement 3d., §44 Duty to Another Based on Taking Charge of the Other
(a) An actor who, despite no duty to do so, takes charge of another who reasonably appears
to be:
1. Imperiled; and
2. Helpless or unable to protect himself or herself
Has a duty to exercise reasonable care while the other is within the actor’s charge.
(b) An actor who discontinues aid or protection is subject to a duty of reasonable care to
refrain from putting the other in a worse position than existed before the actor took
charge of the other and, if the other reasonably appears to be in imminent peril of serious
physical harm at the time of termination, to exercise reasonable care with regard to the
peril before terminating the rescue.
VT, MN: Statutes imposing a duty to give assistance to others who are exposed to physical harm.
See Note on pp. 288-89.
WI: Good Samaritan statute is reprinted on pp. 317-19; current statute is reprinted on p. 320
FL, TX, VA, NC, IL: Refused to impose a duty on mental-health professionals to warn
foreseeable victims of a risk posed by one of their patients. See Note 3 on p. 334.
18
Cases
Harper v. Harmon
Plaintiff dove into shallow water off of his friend’s boat.
Price v. E.I. DuPont de Nemours & Co.

Supreme Court of DE (2011) – p. 290
Plaintiff developed lung disease from exposure to asbestos carried home on her husband’s person
and clothes from the workplace (the defendant’s facility). Is this nonfeasance or misfeasance?
Main Point: Misfeasance requires “risk creating” conduct on the part of the defendant. In order
to succeed on a nonfeasance claim, plaintiff must prove a special relationship that creates a duty.
What constitutes risk creation can be difficult to determine at times.
Grimes v. Kennedy Krieger Institute, Inc.

MD Court of Appeals (2001) – p. 299
Defendant was conducting a study about lead abatement programs and did not tell the plaintiffs
(families with young children) about possible exposure to lead. The court held there was a
special relationship between researcher and subject and imposed an affirmative duty to warn.
Main Point: Court imposed a duty based on the special relationship between researchers, who
have superior knowledge, and subjects, who are poorly placed to protect themselves from risk.
That the subjects were children and the underlying public policy might also have played a role in
the finding of a special relationship.
Farwell v. Keaton
Supreme Court of MI (1976) – p. 308
“Dudes Night Out.” Plaintiff’s son died after a night out with defendant during which the son
was beaten up and the defendant left him asleep in the backseat of a car. Court imposed a duty
based on the special relationship between the defendant and the decedent.
Main Point: This case is not a straightforward application of the affirmative duties because the
factual circumstances are not very clear – there are multiple applications of the affirmative duty
rules that may apply (special relationship, duty to continue a rescue), but the court seems to go
with the special relationship formulation.
Maldonado v. Southern Pacific Transportation Co.

Court of Appeals of AZ (1981) – p. 321
While trying to board a freight train, plaintiff fell off when the train conductors jerked the train
cars. Plaintiff lost his left arm and broke his left leg. Court held that the employees had a duty to
render aid to the plaintiff.
Main Point: The instrumentality causing the harm (the train) was in the control of the
defendants. The defendants had a duty to prevent any further harm to the plaintiff. Restatement,
3d., §39.
Thompson v. County of Alameda

Supreme Court of CA (1980) – p. 325
County released a juvenile offender into his mother’s care, knowing that he had made statements
about killing a young child. Within 24 hours of his release, the juvenile offender killed the
plaintiffs’ son. Did the county have a duty to warn? No.
19
Main Point: The threat was not specific enough and there was no special relationship (under
Restatement, 2d., 315) requiring imposition of a duty.
Tarasoff v. Regents of University of California

Supreme Court of CA (1976) – referenced in Thompson v. County of Alameda
Main Point: Therapists have a duty to exercise reasonable care to protect the foreseeable victim
of danger from the therapist’s patient. Not a general duty.
Graff v. Beard
Plaintiff was injured by a drunk driver and brought suit against the social hosts. If a duty were
imposed, it would be based on the special relationship between the social host and the drinker
under a Restatement, 2d., §41 analysis.
Main Point: No duty imposed on social hosts as a matter of public policy.
Duties of Landowners
Main Topics
 Landowner liability deals with the affirmative duties of landowners to protect visitors from
dangerous conditions on the land (this is different from the landowner’s conduct, which
would be analyzed under the regular negligence standards).
o Landowner/land possessor = person in possession or control of land, buildings, or real
property. Includes tenants.
 Historically, duties of landowners depend on the status of the visitor as a(n):
o Invitee – visitors with permission to enter and in whose visit the landowner or occupier
has a material interest or visitors invited as a member of the public for a purpose for
which the land is held open to the public (ex. person shopping at a business).
 Duty owed to invitees: Duty to use reasonable care to warn, protect, or rescue invitees
from dangerous conditions about which the landowner knew or should have known.
o Licensee – visitors with permission to enter but in whose visit the landowner has no
material interest (ex. social guest).
 Duty owed to licensees: Duty to use reasonable care with respect to conditions of
which the landowner is aware.
o Trespasser – entrant without permission
 Duty owed to trespassers: Duty not to intentionally or “wantonly or willfully” injure.
 Visitor status is a question of law in some jurisdictions and a question of fact in others.
 Courts have abandoned the three-part duty approach of landowners in favor of a unitary duty
of reasonable care.
 Other landowner duties/exceptions to landowner duties:
o Foreseeable/known trespassers – in most jurisdictions and Restatement, 2d., foreseeable
trespassers are treated as “implied licensees” (ex. traveling salesmen).
o Affirmative duty to rescue any party (regardless of status) who becomes injured and
helpless on the land
o Liability is limited for landowners whose land is used recreationally (typically statutory)
20
 Courts have abandoned the three-part duty approach of landowners in favor of a unitary duty
of reasonable care.
 Most jurisdictions hold that businesses owe a duty of care to protect patrons from the
foreseeable criminal acts of third parties. Four approaches to determining foreseeability:
o Specific harm rule
o Similar prior incidents
o Totality of the circumstances test (majority approach)
 This is a broad test that can be harsh on business owners and can increase the cost of
doing business in high crime communities.
o Balance the foreseeability of the risk, gravity of the risk, and the cost of protecting
against the risk.
o For duties of landlords, see Note 4 on pp. 503-04.
 Rescuers: Landowner can be held liable for injuries to rescuers.
o Firefighter rule disallows recovery by “professional rescuers” on the basis of assumption
of risk (though there are many exceptions and many states have abolished the firefighter
rule).
Summary
Restatements
Restatement, 2d., §339 Attractive Nuisance Doctrine
A possessor of land is subject to liability for physical harm to children trespassing thereon
caused by an artificial condition upon land if:
(a) children are likely to trespass;
(b) the condition will involve an unreasonable risk of death or harm to such children;
(c) the children will not know of the danger
(d) eliminating the risk is slight compared to the risk; and
(e) failing to exercise reasonable care to eliminate the risk or protect the children.
Restatement, 3d., §49 Possessor of Land Defined

A possessor of land is
(a) a person who occupies the land and controls it;
(b) a person entitled to immediate occupation and control of the land, if no other person is a
possessor of the land under subsection (a); or
(c) a person who had occupied the land and controlled it, if no other person subsequently
became a possessor under subsection (a) or (b).
Restatement, 3d., §50 Trespasser Defined

A trespasser is a person who enters or remains on land in the possession of another without the
possessor’s consent or other legal privilege.
Restatement, 3d., §51 General Duty of Land Possessors

Subject to §52, a land possessor owes a duty of reasonable care to entrants on the land with
regard to:
(a) conduct by the land possessor that creates risks to entrants on the land;
21
(b) artificial conditions on the land that pose risks to entrants on the land;
(c) natural conditions on the land that pose risks to entrants on the land; and
(d) other risks to entrants on the land when any of the affirmative duties provided in Chapter
7 is applicable.
 Extends the duty of care to trespassers (except flagrant trespassers as noted in §52).
 Takes no position on professional rescuers/firefighter rule
Restatement, 3d., §52 Duty of Land Possessors to Flagrant Trespassers

(a) The only duty a land possessor owes to flagrant trespassers is the duty not to act in an
intentional, willful, or wanton manner to cause physical harm.
(b) Notwithstanding subsection (a), a land possessor has a duty to flagrant trespassers to
exercise reasonable care if the trespasser reasonably appears to be imperiled and
1. helpless; or
2. unable to protect him- or herself.
 Comments do little to define what makes a “flagrant” vs. an “ordinary” trespasser, but
comment a. does list factors to consider:
o Entry that results in the commission of a crime directed at the land possessor
o Entry for the purpose of committing such a crime, even if it is not accomplished
o Entry for another illegal or improper purpose
o Entry despite efforts by the land possessor to prevent trespass and specifically to
prevent entrance by the plaintiff.
o The extent of effort by the plaintiff to defeat the exclusion efforts of the land
possessor, including such acts as ignoring no-trespassing signs and defeating gates,
fences, or locks
o Repeated trespasses by the plaintiff, especially in defiance of communication by the
land possessor seeking to bar such entries
o Entry that results in damage to the land possessor’s person, family, or property
MO: Found a guest at a bible study was a licensee.
WA: Found a guest at a Tupperware party was an invitee.
MS: Visitor status is a question of fact for the jury.
MO: Visitor status is a question of law for the court.
NC: No distinction between invitees/licensees; no-duty to trespassers. (Nelson v. Freeland)
LA, CA: Uses a balancing test to determine the duty of business owners to protect patrons from
the criminal acts of third parties. (Posecai v. Walmart)
OH: Still a three-part approach to landowner liability based on visitor status; Adopted attractive
nuisance doctrine for trespassers who are children and exception for trespassers who are rescuers
in 2001 (Bennett v. Stanley; one of the last 3 states to do so).
22
CA: Allows firefighters and police officers to recover from the original tortfeasor for injuries that
occur after the tortfeasor is aware of the presence of the firefighters or police officers.
NJ: Abolished the firefighter’s rule per statute.
Majority: Open and obvious dangers are relevant to whether the landowner breached any duty
owed and to whether the plaintiff was also at fault.
 Minority: Landowners owe no affirmative duty to protect from open and obvious dangers
Majority: Statutes limiting liability of the owners of land that is used for recreation purposes.
Cases
Cochran v. Burger King
MO Appellate Court (1996) – p. 470
While under the influence, plaintiff was dumpster diving for a snack at a closed Burger King
when the wall collapsed. Burger King was found not liable because the plaintiff was a
“gratuitous” trespasser at the time of the accident, and they owed him no duty.
Main Point: Trespassers are owed no duty of care.
Rowland v. Christian
Plaintiff was a social guest (licensee) who was injured when a bathroom fixture came off the
wall. Court decided that the visitor’s status may have some bearing on the question of liability,
but is not determinative of whether the landowner acted reasonably under the circumstances.
Main Point: First case to abandon the determinative effect of the status of visitors.
Nelson v. Freeland
Supreme Court of NC (1998) – p. 478
Plaintiff was picking up the defendant for a business meeting and tripped on a stick inadvertently
left on the defendant’s porch. Court abandons the licensee/invitee distinction in favor of a
general negligence standard for landowners, stating the distinction is outdated and confusing.
Main Point: NC collapses the invitee and licensee visitor categories in favor of a general
negligence standard of whether the landowner acted reasonably under the circumstances;
maintains the no-duty rule to trespassers.
Bennett v. Stanley
Supreme Court of OH (2001) – p. 490
Young child and his mother drowned in the neighbor’s pool. To access the pool, they were both
trespassing.
Main Point: OH adopts attractive nuisance exception for child trespassers and exception for
rescuer trespassers, but preserves the three-part visitor status approach to landowner liability.
Posecai v. Walmart Stores, Inc.

Supreme Court of LA (1999) – p. 497
23
Plaintiff was robbed at gunpoint in the parking lot of the store during the daylight. Court adopts a
balancing test to determine when a business owes a duty to protect patrons from criminal acts of
third parties.
Main Point: Businesses owe a duty to protect patrons from criminal acts of third parties when
the risk is foreseeable and the gravity of the risk is high relative to the cost of protecting against
the risk.
Immunities
Main Topics
 Substantial overlap between immunity analysis and duty analysis.
o Procedural difference: immunity bars a suit (not just liability, as a no-duty analysis
operates), so immunity is often handled very early in the proceedings.
 Charitable immunity
o Has been modified or abrograted in most states
o Some states have statutes maintaining a qualified or partial immunity in some settings
 Interspousal immunity
o By 2002, 48 states had abolished the doctrine of interspousal immunity either completely
or in certain types of cases (LA = only state to maintain it completely).
o Courts are wary of certain types of claims between husband and wife (ex. IIED) because
courts do not want to arbitrate marital disputes.
 Parent-Child immunity
o Bars children from bringing negligence claims against a parent.
 Child abuse typically would be an intentional tort.
o Some jurisdictions bar children from bringing claims regarding parental authority to
discipline or regarding the discretion of parents to carry out their legal duties to provide
food, clothing, housing, and medical services for children.
o Other jurisdictions allow claims and impose a “reasonable parent” standard.
 Governmental immunity
o This is why the court could not debate the merits of releasing the son in Thompson v.
Alameda County.
o Can be waived.
Summary
Restatements
LA: Only state to maintain interspousal immunity in all forms
DC: Abolished parent-child immunity completely
24
WI: Abrogates parental immunity except in cases where the allegedly tortious conduct involves
an exercise of parental authority (discipline) or ordinary parental discretion with respect to the
provision of food clothing, housing, medical and dental services, etc. (Goller v. White, 1963)
CA, AZ: Applies the reasonable parent standard
Footnotes on p. 515 give the different jurisdictional approaches to parental immunity.
Cases
Brunner v. Hutchinson Division, Lear Sigler, Inc.
U.S. District Court of SD (1991) – p. 512
Child is injured by a mechanical auger with rotating blades. Court does not allow a third party
claim against the parent of the injured child.
Main Point: Confers a broad privilege to acts of parental authority with discretion, extending to
discipline, supervision, provision of food, clothing, medical care, etc.
Breach
Custom and the Standard of Care
Main Topics
 Custom and standard of care
o In theory, adherence to or violation of a customary safety precaution (in
business/professional settings) is not conclusive evidence for or against a negligence
claim; in fact, it is rare that adherence to custom will result in a finding of liability.
o Generally evidence regarding and upward departure from custom is not admissible
because it may discourage future more protective upward departures and it seems unfair
to penalize a defendant who has voluntarily provided an extra measure of safety.
 On the other hand, an upward departure can be evidence that a particular risk was
foreseeable.
 Locality and standard of care
o Strict locality; similar locality; national locality
 Presently, a national locality is used for medical practices
 Result: doctors and hospitals must be realistic about their limitations (referring
patients when necessary)
Summary
Restatements
Restatement, 3d., §13 Custom
(a) An actor’s compliance with the custom of the community or of others in like
circumstances, is evidence that the actor’s conduct is not negligent but does not preclude
a finding of negligence.
25
(b) An actor’s departure from the custom of the community, or of others in like
circumstances, in a way that increases risk is evidence of the actor’s negligence but does
not require a finding of negligence.
Cases
Skilkret v. Annapolis Emergency Hospital Association
Court of Appeals of MD (1975) – p. 204
Plaintiff’s alleged that their infant son, who had been hospitalized from birth, was injured due to
negligence in his delivery and subsequent care. Court applied a national standard of care.
Main Point: A national standard of care is appropriate in determining a medical practitioner or
hospital’s reasonable standard of care, especially given the medical industry’s own adoption of
national standards/accreditation requirements.
Helling v. Carey
Supreme Court of WA (1974) – p. 212
Plaintiff suffered severe vision loss by the age of 32 due to glaucoma. She had been to the eye
doctor several times in 2 years, but they did not test her until the 8th visit because standard
practice was only to test patients who are 40 years or older.
Main Point: Reasonable care in a given case may require a higher standard of care than called
for by the customary practices of the profession. See Note 2 on p. 217 for WA’s statutory
response to this case.
Miller v. Kennedy
Court of Appeals of WA (1974) – p. 218
A patient underwent a kidney biopsy that resulted in the loss of the kidney. Doctor did not warn
patient of the risk of losing the kidney before the biopsy.
Main Point: Physicians have a duty to disclose relevant material risks before obtaining consent
and failure to do so is negligence. (Two exceptions: 1) if the patient is unconscious, and 2) if the
disclosure would result in such physical or emotional distress as to put the patient at risk.)
Negligence Per Se
Main Topics
 Violation of a statute is negligence …
o … if the plaintiff is among the class of persons intended to be protected by the statute and
the injury suffered is within the type of harm the statute intends to prevent.
 Some statutes explicitly create a private cause of action, in other cases the court implies a
private cause of action in the statute
 When violation of a statute is not negligence per se, it may be evidence of negligence
 Court can carve out “excused violations” of a statute – See Restatement, 3d., §15
 Compliance with a statute is usually proof that the actor is not negligent.
26
 Licensing requirements: in some cases, the reason an actor is unlicensed might show that the
lack of license is not the factual cause of the injury, making negligence per se inapplicable; in
other cases it will be relevant.
o Ex. A physician may not be licensed in a state because he has not met the residency
requirements yet. Lack of the license is not negligence per se.
o Ex. A homeowner’s installation of a furnace without the necessary inspection is
negligence per se if it is found the inspector would not have allowed the installation.
Summary
Restatements
Restatement, 3d., §14 Statutory Violations as Negligence Per Se
An actor is negligent if, without excuse, the actor violates a statute that is designed to protect
against the type of accident the actor’s conduct causes, and if the accident victim is within the
class of persons the statute is designed to protect.
Restatement, 3d., §15 Excused Violations

An actor’s violation of a statute is excused and not negligence if:
(a) the violation is reasonable in light of the actor’s childhood, physical disability, or
physical incapacitation;
(b) the actor exercises reasonable care in attempting to comply with the statute;
(c) the actor neither knows nor should know of the factual circumstances that render the
statute applicable;
(d) the actor’s violation of the statute is due to the confusing way in which the requirements
of the statute are presented to the public; or
(e) the actor’s compliance with the statute would involve a greater risk of physical harm to
the actor or to others than noncompliance.
NY: Per statute, practicing medicine without a license is prima facie evidence of negligence. –
See Note 6 on p. 184.
Cases
Martin v. Herzog
Plaintiff was driving a buggy with no lights when the defendant rounded a curve in a car and
struck the buggy. Justice Cardozo said that violation of the statute requiring lights on all vehicles
is negligence (contributory negligence here).
Main Point: Foundational negligence per se opinion written by Justice Cardozo.
Brown v. Shyne
Cout of Appeals of NY (1926) – p. 178
Plaintiff was paralyzed after nine treatments with defendant chiropractor. Defendant was not
licensed to practice medicine in the state of NY. Plaintiff wanted this to be evidence of
negligence, but the court said it was not. Since violation of the statute is not the cause of the
27
injury – the medical license itself does not confer any additional skills on the doctor, but is mean
to make sure the doctor is skilled – it is not evidence of negligence in this case.
Main Point: Violation of a statute is only evidence of negligence if there is a logical connection
between the proven neglect of statutory duty and the alleged negligence that caused the injury.
Tedla v. Ellman
Plaintiff and her brother were walking on the right side of the road because traffic on the left side
of the road was very heavy. Defendant driver struck and killed the brother. A statute required
pedestrians to walk on the left side of the road. Were the plaintiffs contributorily negligent?
Main Point: Strict compliance with the statute might create dangerous results in some cases.
The purpose of the statute was to provide for orderly, certain rules of the road – but does not
require an actor to walk on the unsafe side. This was an excused violation of the statute.
Barnum v. Williams
Supreme Court of OR (1972) – p. 189
Defendant driver was over the centerline while rounding a sharp curve going downhill. He struck
the plaintiff. A statute prohibited driving over the centerline. The jury was instructed that the
defendant was liable for negligence per se unless he introduced evidence showing he was acting
reasonably under the circumstances.
Main Point: A jury can determine that a defendant was acting reasonably even while in
violation of a statute.
Dempsey v. Addison Crane Co.

U.S. District Court, D.C. (1965) – p. 199
Plaintiff was injured when the auxiliary jib attached a crane broke. Though the attachment
apparatus was the prevailing one in the industry, held that it was unsafe and its use was
negligent.
Main Point: Compliance with industry standards is not conclusive evidence for or against a
negligence claim. See also Learned Hand’s opinion in T.J. Hooper (failure to equip a tugboat
with a radio was negligent even though it was not prevailing custom).
Res Ipsa Loquitur
Main Topics
 An accident’s occurrence is evidence of negligence, in res ipsa cases, the judge explicitly
draws inferences as a matter of law.
o “The thing speaks for itself.”
 Requirements:
o The accident which injured the plaintiff is of a kind that normally does not occur in the
absence of someone’s negligence.
 To determine if an accident is of the kind that does not occur without negligence:
 Juries can draw from their own general experiences.
 Expert witnesses can testify about the accident (especially common/necessary in
medical malpractice res ipsa cases).
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 Plaintiffs can disprove all other possible causes of the accident, leaving
negligence as the only remaining cause.
o The defendant has had a sufficiently close connection with the instrumentality that caused
the injury that it is more likely than not that he is the negligent somebody
 Some courts used to use the “exclusive control” test as the second requirement.
 Some courts use the “if the negligence occurs it is usually that of the defendant’s” test
as the second requirement.
 Both of these options are flawed.
 Plaintiff must prove causation between the presumed negligence and the injury; defendant
has the burden of providing evidence that shows there is no negligence
o Protects plaintiffs when defendants are in control of the evidence.
 Causation v. control  if defendant is in control of the dangerous instrumentality/risk to the
plaintiff, there is a strong logical connection to support the application of res ipsa
o “Exclusive control” is often too strict and/or can result in odd results (think of airplane
accidents)
 Plaintiff must typically establish the identity of the negligent defendant, but in some cases a
group application of res ipsa is appropriate (when multiple parties share responsibility for a
dangerous instrumentality, such as a building owner and elevator maintenance company).
o Special Rule: For injuries occurring due to a negligent act during surgery, group
application of res ipsa against all members of a surgical team is permitted.
Summary
Restatements
Restatement, 3d., §17 Res Ipsa Loquitur
The factfinder may infer that the defendant has been negligent when the accident causing the
plaintiff’s harm is a type of accident that ordinarily happens as a result of the negligence of a
class of actors of which the defendant is the relevant member.
Cases
Byrne v. Boadle
Court of Exchequer (1863) – p. 230
Plaintiff was walking down the street when he was knocked out by a barrel of flour that fell from
the defendant’s warehouse. A defendant who owns a warehouse and lowers barrels out the
window has a duty to do so carefully – that the accident occurred is evidence that duty was
breached.
Main Point: Paradigm res ipsa case.
George Foltis, Inc. v. City of New York

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The plaintiff’s restaurant flooded when a water main burst. Plaintiff argued that the bursting of
water main controlled by the city is enough to establish the city’s negligence. Court held that was
enough to establish a prima facie case, but not enough to invoke res ipsa loquitur.
Main Point: Look at the strength of the inference of negligence before invoking res ipsa.
Swiney v. Malone Freight Lines

Court of Appeals of TN (1976) – p. 244
Defendant was found liable for injuries caused by the detachment of a wheel from the
defendant’s truck, even when the wheels had been inspected 3 times in the days preceding the
accident. Res ipsa was invoked and a verdict was directed for the plaintiff.
Main Point: Defendants did not provide enough evidence to counter the use of res ipsa.
Ybarra v. Spangard
After waking up from surgery, plaintiff experienced a sharp pain in his shoulder that a doctor
said was due to trauma. Plaintiff named all of the doctors, nurses, and even the post-op nurse as
defendants. Does res ipsa apply even when the plaintiff does not know who may have caused the
injury? Yes.
Main Point: That multiple defendants are named and some may be absolved of liability is not a
reason to deny the application of res ipsa. Public policy rationale of invoking res ipsa in cases
like this is to encourage one or more of the defendants to come forward with evidence.
Causation
Cause in Fact
Main Topics
 “But for” or sine qua non test.
 Event X is a cause in fact of event Y if:
o Event X can be described as part of a number of antecedent events which culminate in
event Y.
o The absence of event X would diminish the probability of the occurrence of event Y.
 Necessary conditions: sometimes used to describe a cause
o “Background” causes or conditions (like oxygen in the air as a cause for fire) are not
important legally
o Culpable conduct that is not the cause of the injury is not relevant
 Ex. A is speeding up a hill just as B, traveling in the opposite direction, swerves into
A’s lane to avoid hitting a deer. A and B collide. “But for” A’s speeding, there would
have been no collision with B, but this does not matter.
o Conduct that merely puts the defendant in the wrong place at the wrong time but is not
the cause of the injury is irrelevant.
 Substantial cause
o Courts are concerned with identifying the “substantial cause” of an event, not the only
cause of the event.
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Summary
Restatements
Restatement, 3d., §26 Factual Cause
Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual
cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may
also be a factual cause of harm under §27.
Restatement, 3d., §37 Multiple Sufficient Causes

If multiple acts occur, each of which under §26 alone would have been a factual cause of the
physical harm at the same time in the absence of the other act(s), each act is regarded as a factual
cause of the harm.
Restatement, 1st., §876 Persons Acting in Concert

For harm resulting to a third person from the tortious conduct of another, a person is liable if he
(a) orders or induces such conduct, knowing of the conditions under which the act is done or
intending the consequences which ensure, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own
conduct, separately considered, constitutes a breach of duty to a third person.
Cases
Kingston v. Chicago & Northwest Railway Co.
Supreme Court of WI (1927) – p. 361
Two fires (one started by the railroad and one started by unknown causes) joined and burned the
plaintiff’s property. Railroad was held liable on the grounds that it started a fire that was a cause
of the damage.
Main Point: As long as the event (railroad’s fire) is a cause, it does not matter that another event
(unknown fire) also may have been a cause.
Kramer Service v. Wilkins

Supreme Court of MS (1939) – p. 365
Plaintiff was injured when glass from a broken transom fell onto his head. Later, plaintiff
developed skin cancer at the site of the injury. Medical testimony was not conclusive that the
trauma caused the cancer and the court did not allow recovery.
Main Point: “After this, therefore because of this” is not sufficient proof of causation.
Daly v. Bergstedt
Supreme Court of MN (1964) – p. 369
Plaintiff fell in a grocery store and later developed breast cancer.
Main Point: Courts are concerned with finding a substantial cause of an event, not the cause.
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Summers v. Tice
On a hunting party, two defendants negligently shot at a quail and instead both hit the plaintiff.
Main Point: Both defendants were independently negligent (not joint-tortfeasors), but we cannot
determine which one caused the injury, so we allow recovery against both in order to protect the
plaintiff.
Proximate Cause
Main Topics
 Proximate cause = scope of liability = question of fact
o Restatement, 3d., does not use the term “proximate cause”
 Tests for scope of liability:
o Direct cause test
o Foreseeability standard
o Risk standard (Restatement 3d. formulation)
 Andrews dissent in Palsgraf
o Limit liability as a matter of fact using proximate cause, considering:
 Was there a natural and continuous sequence?
 Was there a direct connection without too many intervening causes?
 Is the effect too attenuated?
 Time and space
 “Fair judgment”
o Limitations to liability are needed for “convenience, public policy, a rough sense of
justice” (p. 402-03).
o Chauffeur hypothetical: a chauffeur who causes an explosion by colliding with a car full
of dynamite would be liable to the pedestrian on the sidewalk who is killed and the diner
sitting in a window opposite who is struck by flying glass, but not to the baby ten blocks
away who is dropped by his startled nurse.
Summary
Restatements
Restatement, 2d., §435 Foreseeability of Harm or Manner of Its Occurrence
(a) If the actor’s conduct is a substantial factor in bringing about harm to another, the fact
that the actor neither foresaw nor should have foreseen the extent of the harm or the
manner in which it occurred does not prevent him from being liable.
(b) The actor’s conduct may be held not to be a legal cause of harm to another where after
the event and looking back from the harm to the actor’s negligent conduct, it appears to
the court highly extraordinary that it should have brought about the harm.
Restatement, 3d., §29 Limitations on Liability for Tortious Conduct

An actor’s liability is limited to those harm’s that result from the risks that made the actor’s
conduct tortious.
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 Harm within risk
Restatement, 3d., §30 Risk of Harm Not Generally Increased by Tortious Conduct
An actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that
does not generally increase the risk of that harm.
 If the actor’s conduct is merely serendipitous cause of the harm, there is no liability.
Restatement, 3d., §31 Preexisting Conditions and Unforeseeable Harm

When an actor’s tortious conduct causes harm to a person that, because of a preexisting physical
or mental condition or other characteristics of the person, is of a greater magnitude or different
type than might reasonably be expected, the actor is nevertheless subject to liability for all such
harm to the person.
 Take the victim as you find them; eggshell skull
Cases
Weld-Blundell v. Stephens
Court of Appeal (1920) – p. 418
Plaintiff wrote a nasty letter that his accountant left lying around and the subject of the letter saw
the contents and successfully sued for libel. Plaintiff sued the accountant for negligence.
Main Point: Plaintiff’s own actions were the cause, but were the consequences foreseeable?
Referenced in Polemis and Wagon Mound.
In Re an Arbitration between Polemis and Furness, Withy & Co., Ltd.

Due to the negligence of the charterers of a ship, a fire started and the ship was destroyed.
Main Point: Direct cause test: once negligence is established and once direct cause is
established, the defendant is liable for all damages. It is irrelevant that the damage was not
foreseeable.
Palsgraf v. Long Island Railroad

Cardozo uses foreseeability in his duty determination, but would apply the direct cause test if
liability were imposed (though he does say there is room for discussion for drawing the liability
line depending on the tort). Andrews (dissent) uses foreseeability in the factual question of
whether the harm was too remote from the cause to impose liability.
Main Point: How to limit the scope of liability. Duty does the heavy lifting here.
The Wagon Mound 1

Privy Council (1961) – p. 406
Oil spilled in a harbor and the owners of a wharf want to recover for the damages to the wharf
due to a fire (that started when a smoldering rag from the wharf caught fire and spread to the oil).
Court did not allow recovery, imposing a foreseeability limit and “demolishing” Polemis.
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Main Point: Liability is limited to the damages that a reasonable man should have foreseen.
Applies a strict foreseeability standard (without the benefit of hindsight) to the specific
consequences.
Hughes v. Lord Advocate

House of Lords (1963) – p. 420
A child fell into a manhole and was burned when one of the warning lanterns exploded. Though
the explosion was not foreseeable, it was foreseeable that a child would be drawn to the
constructions site and burned by the lamp. The explosion was a nonessential element in the chain
of causation so its lack of foreseeability does not matter.
Main Point: Foreseeability of the type of injury is necessary, but the exact accident does not
have to be foreseeable.
Doughty v. Turner Manufacturing Co.

The cover fell into a vat of liquid cyanide (800° C). One-two minutes later an explosion occurred
as a result of a chemical reaction between the cover and the contents of the vat.
Main Point: The accident was not foreseeable and no liability was found.
 What if plaintiff had been standing close enough to be splashed when the cover dropped into
the vat? Would this be more like Hughes v. Lord Advocate? Would the plaintiff be within the
Andrews “zone of danger”?
Petition of Kinsman Transit Co.

Circuit Court of Appeals, Second Circuit (1964) – p. 429
A boat got loose, crashing into another boat, and then into the drawbridge, which the city did not
raise in time. The bridge collapsed, damming the river and flooding the surrounding area.
Main Point: Liability is imposed when consequences of the same general sort as expected occur,
regardless of the extent. Foreseeability of the harm matters, not the mechanism causing the harm.
Harm within the risk, which works with the Restatement, 3d., §29 risk standard.
 Judge Friendly delivered the opinion.
The Wagon Mound 2

Privy Council (1966) – p. 443
Owners of the ship that was docked at the wharf were able to recover from the tanker that was
leaking oil.
Main Point: Looks at foreseeability as a spectrum include risk, gravity of risk, and cost of
precaution (almost like Carroll Towing reasoning).
 Lord Reid wrote this opinion and the Haley opinion – foreseeability is important in both.
Intervening and Superseding Causes
Main Topics
 Important to distinguish between intervening/superseding cause situations and joint tortfeasor
situations or situations like Summers v. Tice.
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 Where the type of intervening negligent act is at all foreseeable (even if the specific act is
not), the original tortfeasor will normally be liable.
 Where the type of intervening act is considered unforeseeable, the original tortfeasor will
usually escape liability.
o The recklessness/grossness of the intervening act is a factor in determining its
foreseeability.
 Look at the sequence of events – did the intervening cause break the causal sequence
between the original tortfeasor’s conduct and the injury?
 Aggravation of injuries: Typically one who injures another is responsible for any aggravation
of the injuries on the grounds that the aggravation is a foreseeable consequence of the
original injury.
 Rescuers: Original tortfeasor can be held liable for injuries to rescuers.
o Firefighter rule disallows recovery by “professional rescuers” on the basis of assumption
of risk (though there are many exceptions and many states have abolished the firefighter
rule).
Summary
Restatements
Restatement, 2d., §439 Effect of Contributing Acts of Third Persons When Actor’s Negligence is
Actively Operating
If the effects of the actor’s negligent conduct actively and continuously operate to bring about
harm to another, the fact that the active and substantially simultaneous operation of the effects of
a third person’s innocent, tortious, or criminal act is also a substantial factor in bringing about the
harm does not protect the actor from liability.”
Restatement, 3d., §34 Intervening Acts and Superseding Causes

When a force of nature or an independent act is also a factual cause of harm, an actor’s liability
is limited to those harms that result from the risks that made the actor’s conduct tortious.
 Cmt. e. Unforeseeable, unusual, or highly culpable intervening acts
When intervening acts are unforeseeable, unusual, or highly culpable, they may bear on
whether the harm is within the scope of the risk. [Not very explicit]
CA: Allows firefighters and police officers to recover from the original tortfeasor for injuries that
occur after the tortfeasor is aware of the presence of the firefighters or police officers.
NJ: Abolished the firefighter’s rule per statute.
Cases
Glasgow Realty Co. v. Metcalfe
Court of Appeals of KY (1972) – p. 457
“Window of Doom.” Plaintiff was injured in a stampede caused by falling glass from a broken
window. Defendant negligently maintained a window, but Marty pushing on the window was a
35
cause of the injury. Defendant is liable because his breach of duty in maintaining the window
was “substantially simultaneous” cause as Marty’s behavior.
Main Point: Court applies “substantially simultaneous” causes from Restatement, 2d., §439.
Brauer v. NY Central and Hudson River RR

Court of Appeals of NJ (1918) – p. 461
A collision on a railroad crossing destroyed the plaintiff’s wagon and cased the contents to
scatter. Thieves subsequently stole the contents. Defendants were liable.
Main Point: Risk of the intervening event (theft) was foreseeable (RR had detectives on board).
Defendant’s negligence created the risk to the plaintiff.
Vicarious Liability
Main Topics
 Vicarious liability is based on the status relationship between the party at fault and the
vicariously liable party:
o Employer-employee (most common)
o Parent-child (very rare)
o Joint ventures
o Automobile owner-driver
 Employer-employee vicarious liability on the basis of either (1) respondeat superior or (2)
apparent authority
o Generally, an employer is liable for the negligent conduct of employees done within the
scope of the employment.
 Scope of employment: did it benefit the employer?
 Frolic (employer not liable) v. Detour (employer would be liable).
 Scope of employment v. course of employment (course = more flexible)
o Apparent authority: creates vicarious liability within the scope of the apparent authority
when it is reasonable to believe that the agent has the purported authority.
o Courts are divided on whether employers should be vicariously liable for intentional acts
of their employees.
o Employers are not vicarious liable for tortious conduct of non-employee agents or
independent contractors.
 Exceptions: non-delegable duties (like blasting) and apparent authority
o Overlaps with agency law.
Summary
Restatements
Restatement, 3d., of Agency §7.03 Principal’s Liability – In General
(1) A principal is subject to direct liability to a third party harmed by an agent’s conduct
when
a. As stated in §7.04, the agent acts with actual authority or the principal ratifies the
agent’s conduct and
36
i. The agent’s conduct is tortious, or
ii. The agent’s conduct, if that of the principal, would subject the principal to
tort liability; or
b. As stated in §7.05, the principal is negligent in selecting, supervising, or
otherwise controlling the agent; or
c. As stated in §706, the principal delegates performance of a duty to use care to
protect other persons or their property to an agent who fails to perform the duty.
(2) A principal is subject to vicarious liability to a third party harmed by an agent’s conduct
when
a. As stated in §7.07, the agent is an employee who commits a tort while acting
within the scope of employment; or
b. As stated in §7.08, the agent commits a tort when acting with apparent authority
in dealing with a third party on or purportedly on behalf of the principal.
Restatement, 3d., of Agency §7.07

An employee acts within the scope of employment when performing work assigned by the
employer or engaging in a course of conduct subject to the employer’s control. An employee’s
act is not within the scope of employment when it occurs within an independent course of
conduct not intended by the employee to serve a purpose of the employer.
NY: Statute imposing vicarious liability on the owner of an automobile for the negligent acts of
the driver that result in death or injuries to person or property (See Note c. on pp. 708-09).
Cases
Wong-Leong v. Hawaiian Independent Refinery, Inc.
Supreme Court of HI (1994) – p. 688
“It’s Party Time.” Employee had been drinking at a party on his employer’s premises. On the
way home the employee collided with another car, killing himself and all three passengers of the
other vehicle.
Main Point: Whether conduct is within the scope of employment is a factual questions.
Jones v. Healthsouth Treasure Valley Hospital

Supreme Court of ID (2009) – p. 700
Patient died of a fatal air embolism due to a blood bag being “cuffed” when it should not have
been. The patient did not know that the cell saver operators and the anesthesiologists were
independent contractors of the hospital.
Main Point: Apparent agency doctrine allows recovery from the vicariously liable defendant
when the plaintiff has the reasonable belief that the agent has apparent authority.
Joint Tortfeasors
Main Topics
37
 Joint tortfeasors are two or more persons whose collective negligence in a single accident
causes damages to another person. They can be held jointly and severally liable, meaning any
of them can be responsible for the full amount of damages no matter what proportion of
responsibility each has.
 When separate, independent acts of negligence combine to produce a single injury, each
person is liable for the damage, although one of them alone could not have caused the result.
 Indivisible injuries: Damages are indivisible, and thus the injury is indivisible, when all
legally culpable conduct of the plaintiff and every tortious act of the defendants and other
relevant persons caused all the damages.
o Whether damages are divisible is a question of fact.
Summary
Restatements
Restatement, 3d.:Apportionment of Liability, §10 Effect of Joint and Several Liability
When, under applicable law, some persons are jointly severally liable to an injured person, the
injured person may sue for and recover the full amount of recoverable damages from any jointly
and severally liable person.
Restatement, 3d.:Apportionment of Liability, §12 Intentional Tortfeasors

Each person who commits a tort that requires intent is jointly and severally liable for any
indivisible injury legally caused by the tortious conduct.
Restatement, 3d.:Apportionment of Liability, §15 Persons Acting in Concert

When persons are liable because they acted in concert, all persons are jointly and severally liable
for the share of comparative responsibility assigned to each person engaged in concerted activity.
 Takes no position on whether a concerted-action tortfeasor is also jointly and severally liable
for the share of comparative responsibility assigned to an independent tortfeasor who is also
liable for the same indivisible injury.
Restatement, 3d.:Apportionment of Liability, §17 Joint and Several or Several Liability for
Independent Tortfeasors
If the independent tortious conduct of two or more persons is a legal cause of an indivisible
injury, the law of the applicable jurisdiction determines whether those persons are jointly and
severally liable, severally liable, or liable under some hybrid of joint and several and several
liability.
Restatement, 3d.:Apportionment of Liability, §26 Apportionment of Liability when Damages

Can be Divided by Causation
(a) When damages for an injury can be divided by causation, the factfinder first divides them
into their indivisible component parts and separately apportions liability for each
indivisible component part …
(b) Damages can be divided by causation when the evidence provides a reasonable basis for
the factfinder to determine:
38
1. that any legally culpable conduct of a party or other relevant person to whom the
factfinder assigns a percentage of responsibility was a legal cause of less than the
entire damages for which the plaintiff seeks recovery and
2. the amount of damages separately caused by that conduct.
Otherwise, the damages are indivisible and thus the injury is indivisible …
Cases
Injury
Emotional Harm
Main Topics
 Negligent Infliction of Emotional Distress (NIED)
o Historically, plaintiffs had to experience physical symptoms in order to recover for
emotional distress. See Restatement, 2d., §436.
 Courts were reluctant to permit recovery for pure emotional harm because:
 Emotional harm is hard to verify objectively
 Emotional harm can be widespread
 Some degree of emotional harm is impossible to escape in society
 Giving legal credence to emotional harm may increase its severity
 The legal system doesn’t’ have a lot of options to enforce mitigation of emotional
harm
 Causes of action that allowed recovery for “emotional distress” protected some other
interest that manifested as emotional distress. For example, assault  physical injury,
defamation  reputation, false imprisonment  physical freedom.
o Now, emotional wellbeing is recognized as an independent interest.
 Medical understanding of emotional/psychological injuries has contributed to the
law’s acceptance of emotional harm as a recognizable injury.
o Courts allow emotional distress claims in circumstances where any reasonable person
would suffer serious emotional harm, when the severity of the harm limits the activities
of the victim’s daily life, and when the scope of liability is sufficiently limited.
 Most common NIED claims involve: mishandling of corpse, airplane passengers who
have survived a sudden descent, parents witnessing the death of a child, false
diagnosis of terminal illness.
o “Zone of Danger” – the area in which a person is at risk of physical harm where a person
of reasonable sensitivities would be emotionally distressed by the risk. See comment e. to
 If a person outside of the danger zone is unusually sensitive and is distressed,
recovery is usually barred.
 If a person within the danger zone is unusually sensitive and suffers emotional
distress to a greater extent, the actor is liable for all of the harm.
39
o Common theme = horribleness (“Lifetime movies” as DeMott said)
o Bystander claims of NIED:
 The injury must be serious and sudden
 Must witness the injury contemporaneously
 Must be closely related to the injured
 NJ Elements: (1) death or serious physical injury of another caused by defendant’s
negligence; (2) marital or intimate, familial relationship between the plaintiff and the
injured person; (3) observation of the death or injury at the scene of the accident; (4)
resulting severe emotional distress.
 Intentional Infliction of Emotional Distress (IIED)
o Tort of outrage
o Conduct must be “extreme and outrageous” and emotional harm must be “severe” to
allow recovery (See Restatement, 3d., §46)
Summary
Restatements
Restatement, 2d., §436 Physical Harm Resulting from Emotional Disturbance
(1) If the actor’s conduct is negligent as violating a duty of care designed to protect another
from a fright or other emotional disturbance which the actor should recognize as
involving an unreasonable risk of bodily harm, the fact that the harm results solely
through the internal operation of the fright or other emotional disturbance does not
protect the actor from liability.
(2) If the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm
to another otherwise than by subjecting him to fright, shock, or other similar and
immediate emotional disturbance, the fact that such harm results solely from the internal
operation of fright or other emotional disturbance does not protect the actor from liability
(3) The rule stated in subsection (2) applies where the bodily harm to the other results from
his shock or fright at harm or peril to a member of his immediate family occurring in his
presence.
 Allowed recovery for physical injury caused by shock or fear, but did not allow recovery if
the harm was only emotional. See §436 A below.
Restatement, 2d., §436A

If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm
or emotional disturbance to another, and it results in such emotional disturbance alone, without
bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.
Restatement, 2d., §868 Interference with Dead Bodies

One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon
the body of a dead person or prevents its proper interment or cremation is subject to liability to a
member of the family of the deceased who is entitled to the disposition of the body.
Restatement, 3d., §45 Emotional Harm

“Emotional harm” means impairment or injury to a person’s emotional tranquility.
40
Restatement, 3d., §46 Intentional (or Reckless) Infliction of Emotional Harm

An actor who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional harm to another is subject to liability for that emotional harm and, if the emotional
harm causes bodily harm, also for the bodily harm.
Restatement, 3d., §47 Negligent Conduct Directly Inflicting Emotional Harm on Another
An actor whose negligent conduct causes serious emotional harm to another is subject to liability
to the other if the conduct:
(a) places the other in danger of immediate bodily harm and the emotional harm results from
the danger; 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 harm.
Restatement, 3d., §48 Negligent Infliction of Emotional Harm Resulting from Bodily Harm to a
Third Person
An actor who negligently causes sudden serious bodily injury to a third person is subject to
liability for serious emotional harm caused thereby to a person who:
(a) perceives the event contemporaneously, and
(b) is a close family member of the person suffering the bodily injury.
NJ: Specific formulations for bystander claims (Portee v. Jaffee)
TX: NIED isn’t actionable without the breach of some other duty. IIED is actionable.
Cases
Catsouras v. Department of the CA Highway Patrol
CA Court of Appeals (2010) – p. 546
Plaintiff’s daughter died in a gruesome automobile crash. Police officers sent photos of the body
as a Halloween prank and the photos were widely distributed around the internet.
Main Point: Court allowed recovery, but treated the case as an undifferentiated negligence claim
(instead of in the NIED framework). Duty does the heavy lifting here.
Falzone v. Busch
Plaintiff was almost struck by an automobile, and the fear she experienced caused her to become
ill. Plaintiff was allowed recovery for the physical injury (illness) sustained because of the fear of
impact, but without an actual physical impact.
Main Point: Overrules the precedent requiring a physical impact for a recovery. As long as the
negligence was the proximate cause of the injury (with or without physical impact), recovery is
permitted as long as the plaintiff was within the “danger zone” where it would be reasonable to
fear a physical injury.
Molien v. Kaiser Foundation Hospitals

41
Plaintiff recovered for NIED due to his wife’s misdiagnosis with syphilis. Puzzling result.
Main Point: Foreseeability does the heavy lifting with allowing recovery for NIED. As long as
the victim is a “direct victim,” recovery is allowed.
 Does not define direct victim, though the court later (Burgess, 1992) says it has to do with a
preexisting relationship between the parties.
Portee v. Jaffee
Plaintiff watched her son die when he was caught between an elevator door and the elevator
shaft.
Main Point: Court establishes a test for allowing bystander NIED claims: (1) death or serious
physical injury of another caused by defendant’s negligence; (2) marital or intimate, familial
relationship between the plaintiff and the injured person; (3) observation of the death or injury at
the scene of the accident; (4) resulting severe emotional distress.
 In Dunphy v. Gregor (1994) the court found that a cohabitating fiancé satisfied (2) above,
and adopted a standard which considers the duration of the relationship, the degree of mutual
dependence, the extent of common contributions to a life together, the extent and quality of
shared experience, etc. (See Note 3 on p. 580).
Boyles v. Kerr
Plaintiff was filmed having sexual intercourse with the defendant, who shared the video. Plaintiff
alleges severe emotional distress because of the rumors.
Main Point: TX does not allow a standalone claim for NIED, but only allows recovery of NIED
if there is a breach of some other legal duty. Preserves bystander claims and NIED claims in
certain instances (mishandling of a corpse).
McDougall v. Lamm
Supreme Court of NJ (2012) – supplement
Plaintiff’s dog was killed by her neighbor’s dog and she wanted to recover for NIED.
Main Point: Relationship with a dog does not satisfy the Portee v. Jaffee requirement of a
marital or intimate, familial relationship between the plaintiff and the injured person in allowing
an NIED claim.
Star v. Rabello
Supreme Court of NV (1981) – p. 1326
Plaintiff and defendant were in a fight. Daughter of the plaintiff wanted to recover on an IIED
claim, but was denied.
Main Point: To recover as a bystander for an IIED claim, the witnessed acts must be
unquestionably violent and shocking.
Snyder v. Phelps
U.S. Supreme Court (2011) – p. 1343
Plaintiff wanted to recover on an IIED claim against the Westboro Baptist Church for the distress
caused by the church’s picketing of his son’s funeral. In a divided opinion, the Supreme Court
42
denied recovery. Speech can be a vehicle for IIED, but in this case, the narrow requirements for
an IIED claim were not met.
Main Point: Majority focuses on the content of the speech (it was not “private speech” and thus
is not protected). Dissent focuses on the context of the speech.
Economic Harm
Main Topics
 “Economic Loss Rule” – one does not owe a duty not to cause solely economic losses to
another.
o No duty determination
o Deals with injury that is solely economic. If a plaintiff can establish a personal injury, the
plaintiff can recover for economic injury like lost wages and damage to property.
o Rationale: Many economic lost cases are “nonstranger” situations, where the injured can
recover through some other remedy (mostly contract law). In “stranger” situations, the
concern is where to draw the line of liability.
 Ask two questions before allowing tort recover:
1.) What, if anything, does recovery in tort provide to the plaintiff that is different
from a contract remedy?
2.) What, in theory, explains the existence of a tort remedy given the availability of
contract law.
 Exceptions
o Attorney and accountant malpractice
o Tortious interference with contract
o Misrepresentation and fraud (see below)
o “Sudden and calamitous” product defects (in some jurisdictions)
o Commercial fisherman (narrow exception).
Summary
Restatements
Restatement, 2d., §552 Information Negligently Supplied for the Guidance of Others
(1) One who, in the course of his business, profession or employment, or in any other transaction
in which he has a pecuniary interest, supplies false information for the guidance of others in their
business transactions, is subject to liability for pecuniary loss caused to them by their justifiable
reliance upon the information, if he fails to exercise reasonable care or competence in obtaining
or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss
suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends
to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows
that the recipient so intends or in a substantially similar transaction.
43
(3) The liability of one who is under a public duty to give the information extends to loss
suffered by any of the class of persons for whose benefit the duty is created, in any of the
transactions in which it is intended to protect them.
Cases
Aikens v. Debow
Supreme Court of WV (2000) – p. 588
Econo-lodge owner could not recover lost profits from the truck driver who caused the overpass
bridge access to the hotel to be closed for 19 days.
Main Point: An individual cannot recover for purely economic harm absent a special
relationship or contract with the alleged tortfeasor (which would establish a duty because the
specific injury and plaintiff would be foreseeable).
Loss of a Chance
Main Topics
 Lost chance at a cure of a medical condition is recognized (in some jurisdictions) as a new
type or harm
o Medical malpractice only (failure to diagnose)
 Difficult questions in quantifying loss of chance and determining what and when it should be
compensable
o “All of nothing” rules of recovery are inadequate because they require a showing that the
defendant was more likely than not the cause of the ultimate outcome
 A plaintiff with 51% likelihood of survival before the alleged malpractice can recover
fully v. the plaintiff with 49% likelihood of survival can’t recover at all
o Court in Matasuyama lists the steps for calculating damages on p. 393
 Example of developments in science and medicine spurring a development in the law
o More data about survival rates makes loss of chance possible to calculate
 Restatement, 3d., takes no position
Summary
Restatements
Restatement, 3d., §26 Comment n. Lost opportunity or lost chance as harm.
MI: Legislature overruled the judicial adoption of loss-of-a chance doctrine. See Note 1 on p.
394.
KY: Judiciary rejected adoption of loss-of-a chance doctrine. See Note 3 on p. 395.
44
WA, WY: Refused to extend loss-of-a chance to legal malpractice. See Note 3 on p. 395.
Cases
Matasuyama v. Birnbaum
Supreme Judicial Court of MA (2008) – p. 384
Dr. failed to diagnose stomach cancer in a timely manner, resulting in “loss of chance”
Main Point: MA recognizes loss of chance as an injury and lays out the requirements (restricts
recovery to medical malpractice, requires expert testimony) and the damages calculation.
Defenses
Contributory Negligence
Main Topics
 Contributory negligence is a complete defense.
 Comparative negligence apportions fault.
o At least 46 states have adopted some form of comparative negligence.
o Maritime law used to apportion damages equally among negligent parties (regardless of
who was more or less at fault).
Defendants have the burden of proof in establishing contributory/comparative negligence.
 Pure comparative negligence: a plaintiff can recover a proportion of the damages regardless
of whether he is more at fault than the defendant.
o A plaintiff who is 99% at fault can still recover 1% of the damages.
 Modified comparative negligence
o Version 1: A plaintiff can recover a proportion of the damages if he is less than 50% at
fault, or
o Version 2: A plaintiff can recover a proportion of the damages if he is less at fault than
the defendant.
o Should juries be informed of the legal consequences of assigning a certain proportion of
fault to a given party? Courts are split. See Note 7 on pp. 650-51.
 Different statutes focus on either fault or causation in apportioning liability. See pp. 652-51.
 In a majority of jurisdictions, comparative negligence is irrelevant if the defendant’s conduct
is intentional or willful and wanton (even though the Restatement calls for a comparison of
all types of conduct).
 Duty to mitigate?
o Before the accident by wearing a seatbelt or a helmet.
 Controversial and courts are split on how to treat this.
 Not wearing a seatbelt is not negligence per se in any court.
o After the accident by seeking necessary medical care.
Summary
Restatements
Restatement, 3d., §3 Ameliorative Doctrines for Defining Plaintiff’s Negligence Abolished
45
Plaintiff’s negligence is defined by the applicable standard for a defendant’s negligence. Special
ameliorative doctrines for defining plaintiff’s negligence are abolished.
Restatement, 3d., §4 Proof of Plaintiff’s Negligence and Legal Causation

The defendant has the burden to prove plaintiff’s negligence and may use any of the methods a
plaintiff may use to prove defendant’s negligence. Except as otherwise provided, the defendant
also has the burden to prove that the plaintiff’s negligence, if any, was a legal cause of the
plaintiff’s damages.
Restatement, 3d., Apportionment of Liability §8 Factors for Assigning Shares of Responsibility

Factors for assigning percentages of responsibility to each person whose legal responsibility has
been established include
(a) the nature of the person’s risk-creating conduct, including any awareness or indifference
with respect to the risks created by the conduct and any intent with respect to the harm
created by the conduct; and
(b) the strength of the causal connection between the person’s risk-creating conduct and the
harm.
IL: One of the few states that requires the plaintiff to prove the absence of contributory
negligence as part of a prima facie negligence case. Minority rule – most states require the
defendant to prove contributory negligence.
AL, MD, NC, VA, DC: Contributory negligence is a complete defense (unless defendant’s
conduct is willful or wanton).
AK, CA, FL, KY, LA, MS, MO, NM, NY, RI, SD, WA: Pure comparative negligence.
AR, CO, CT, DE, GA, HI, ID, IL, IN, IA, KS, ME, MA, MI, MN, MT, NE, NV, NH, NJ, ND,
OH, OK, OR, PA, SC, TN, TX, UT, VT, WV, WI, WY: Modified comparative negligence.
Cases
Butterfield v. Forrester
King’s Bench (1809) – p. 628
Plaintiff rode his horse into a pole the defendant had left across the highway. Plaintiff was unable
to recover, given the accident would have been avoided had he been riding reasonably.
Main Point: Contributory negligence as a complete bar to recovery.
Smithwick v. Hall & Upson Co.

Supreme Court of CT (1890) – p. 631
Employee was not supposed to be working in a particular area because of the risk of slipping on
melted ice. Employee worked in that area but was injured by a falling wall.
Main Point: The plaintiff’s contributory negligence must be a proximate cause of the injury in
order to serve as a defense.
46
Hoffman v. Jones
Supreme Court of FL (1973) – p. 636
Court “jettisons” contributory negligence in favor of comparative negligence. Determines that
the initial justification for contributory negligence as a complete defense (that it was essential for
the growth of transportation) is no longer valid, especially now that everyone owns cars.
Main Point: A jury can apportion fault as it sees fit among parties whose conduct was the
proximate cause of the injury, and apportion damages according to the proportionate fault of
each party.
Bradley v. Appalachian Power Co.

Supreme Court of WV (1979) – p.644
WV court determines that contributory negligence and “pure” comparative negligence are both
extremes – contributory negligence for barring recovery for plaintiff who is only slightly at fault
and pure comparative negligence for allowing a plaintiff who is 95% at fault to recover and for
favoring the party who has incurred the highest damages
Main Point: Court adopts a modified comparative negligence rules where plaintiffs are barred
from recovery if their negligence accounts for 50% or more of the injury.
Last Clear Chance
Main Topics
 Fault is attributed to the last party who could have avoided the accident by exercise of
reasonable care.
 Prosser calls it the “Jackass Doctrine” based on the first case to articulate the theory (Davies
v. Mann) in which the plaintiff’s unfettered donkey was run over by the defendant
 Helpless v. inattentive plaintiff
 Based on causation.
o Reasoning breaks down when dealing with the inattentive plaintiff.
 Outdated doctrine.
Summary
Restatements
Restatement, 2d., §479 Last Clear Chance: Helpless Plaintiff
A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s
subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize with reasonable care and competence his
then existing opportunity to avoid the harm, when he
i. knows the plaintiff’s situation and realizes or has reason to realize he peril
involved in it or
ii. would discover the situation and thus have reason to realize the peril, if he were to
exercise the vigilance which it is then his duty to the plaintiff to exercise.
 Think of the Shiras/Kinsman Transit
47
Restatement, 2d., §480 Last Clear Chance: Inattentive Plaintiff

A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the
defendant’s negligence in time to avoid the harm to him, can recover if, but only if, the defendant
(a) knows the plaintiff’s situation, and
(b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to
discover his peril in time to avoid the harm, and
(c) thereafter is negligent in failing to utilize with reasonable care and competence his then
existing opportunity to avoid the harm.
 Think of Butterfield
Not included in Restatement, 3d.
Cases
None
Assumption of Risk
Main Topics
 Express assumption of risk
o Ex. signing a release form.
o Complete defense; a release is an enforceable contract.
o Does not cover intentional conduct/anything more blameworthy than negligence.
o Can be excluded for public policy reasons.
 There are some statutes prohibiting express assumption of risks, especially regarding
products liability.
 Implied assumption of risk
o Complete defense.
o The injured must have (1) knowledge and (2) appreciation of the risk and (3) voluntarily
partake in the activity. Typically subjective standards determined by the trier of fact.
o Primary implied assumption of risk: The injured accepts a known risk that is intrinsic in
the conduct, and defendant has no duty (ex. no-duty rules at baseball stadiums).
 Sometimes classified as no-duty cases.
o Secondary implied assumption of risk: The injured voluntarily encounters and accepts a
known risk created by the defendant’s negligence (ex. continuing to use a defective
lawnmower).
 Can be/has been subsumed into a comparative negligence analysis.
o Unreasonable assumption of risk: The injured unreasonably accepts a known risk/threat
of danger in pursuing a particular course of conduct (ex. driving closely behind an
overloaded dump truck that has a sign warning to stay back).
 Can be subsumed into a comparative negligence analysis.
48
Summary
Restatements
Restatement, 3d., §2 Contractual Limitations on Liability
When permitted by contract law, substantive law governing the claim, and applicable rules of
construction, a contract between the plaintiff and another person absolving the person from
liability for future harm bars the plaintiff’s recovery from that person for the harm. Unlike a
plaintiff’s negligence, a valid contractual limitation on liability does not provide an occasion for
the factfinder to assign a percentage of responsibility to any party or other person.
NV: Abrogates all forms of implied assumption of risk in favor of traditional
negligence/comparative negligence analysis.
CA: In recreational/sporting activities, liability can only be imposed when the defendant-
participant intentionally injures another or engages in conduct that is so reckless as to be totally
outside the range of the ordinary activity of the sport.
Majority: It is improper to hold a participant liable to a co-participant for ordinary careless

conduct committed during a sport.
Cases
LaFrenz v. Lake County Fair Board
Court of Appeals of IN (1977) – p. 657
A woman was struck and killed when a car from a demolition derby jumped a barrier and struck
her. She had signed a “waiver and release from liability and indemnity agreement.”
Main Point: Plaintiff knowingly and willingly signed an express assumption of risk. The release
is enforceable.
Herod v. Grant
Supreme Court of MS (1972) – p. 665
Plaintiff was injured when he fell from the defendant’s truck bed while they were chasing deer in
the plowed fields.
Main Point: Implied assumption of risk requires (1) knowledge of the danger, (2) appreciation
of the danger, and (3) a voluntary choice to participate. This is a subjective standard.
 This type of implied assumption of risk has been subsumed into MS’s comparative
negligence doctrine.
Jones v. Three Rivers Management Corp.

Supreme Court of PA (1978) – p. 668
Plaintiff was hit by a foul ball while inside a concourse. The no-duty rule in baseball did not
apply because the risk of getting hit in the walkway is not an inherent part of attendance at the
game.
Main Point: No-duty determinations are very narrowly applied.
49
Auckenthaler v. Grundmeyer
Supreme Court of NV (1994) – p. 674
Plaintiff was injured when defendant’s horse kicked her while participating in a recreational
horseback-riding event.
Main Point: NV abrogates all forms of implied assumption of risk, and instead uses a traditional
negligence (and comparative negligence) analysis.
Strict Liability
Animals
Main Topics
 Strict liability = harm without fault
o Plaintiff must still prove causation.
 Strict liability only applies to harm that is characteristic of the conduct for which strict
liability is imposed. Regarding livestock, those harms may include damage to landscaping
and injury to pets or persons, but would not include, for example, injury caused by the
plaintiff tripping over a sleeping animal.
 Fencing in v. Fencing out requirements.
 A plaintiff at a petting zoo or a veterinarian cannot recover under strict liability because he
receives a benefit from interacting with the animal.
 Defenses/Scope of Liability (§24, §25)
o Assumption of risk = a defense
o Contributory/comparative negligence = used to not be relevant in strict liability claims;
now, may reduce the recovery OR take the claim out of the strict liability realm
Summary
Restatements
Restatement, 3d., §21 Intrusion by Livestock or Other Animals
An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon
the land of another is subject to strict liability for physical harm caused by the intrusion.
Restatement, 3d., §22 Wild Animals

(a) An owner or possessor of a wild animal is subject to strict liability for physical harm
caused by the wild animal.
(b) A wild animal is an animal that belongs to a category of animals that have not been
generally domesticated and that are likely, unless restrained, to cause personal injury.
 Focus is on the category of animals, not the particular animal in question
Restatement, 3d., §23 Abnormally Dangerous Animals

An owner or possessor or an animal that the owner or possessor knows or has reason to know has
dangerous tendencies abnormal for the animal’s category is subject to strict liability for physical
harm caused by the animal if the harm ensues from that dangerous tendency.
50
Restatement, 3d., §24 Scope of Liability

Strict liability under §§20-23 does not apply
(a) if the person suffers physical or emotional harm as a result of making contact with or
coming into proximity to the defendant’s animal or abnormally dangerous activity for the
purpose of securing some benefit from that contact or that proximity; or
(b) if the defendant maintains ownership or possession of the animal or carries on the
abnormally dangerous activity in pursuance of an obligation imposed by law.
 Common carriers who are required to ship dangerous animals by statute or dog catchers who
are required to take a dangerous animal into their possession are not subject to strict liability
per subsection (b).
Restatement, 3d., §25 Comparative Responsibility

If the plaintiff has been contributorily negligent in failing to take reasonable precautions, the
plaintiff’s recovery in a strict-liability claim under §§20-23 for physical or emotional harm is
reduced in accordance with the share of comparative responsibility assigned to the plaintiff.
 Contributory/comparative negligence might establish that defendant is not subject to strict
liability, but is not a defense in cases that proceed under the strict liability regime
 Express assumption of risk is a defense
Cases
Duren v. Kunkel
Supreme Court of MO (1991) – p. 762
Plaintiff was injured by defendant’s limousin bull.
Main Point: Court requires stringent proof of the owner’s knowledge that the animal is
dangerous. Courts (and Restatement) look at the category of animals, not the individual animals.
Dangerous Activities
Main Topics
 Strict liability = harm without fault
o Plaintiff must still prove causation.
 Goals of strict liability:
o Discourage the activity all together.
o Internalize the costs of inevitable accidents.
 Abnormally dangerous activities are those that cannot be made safer through exercise
of reasonable care and are of common usage. (3d., §20)
o Common usage has been an element of dangerous activities in all three restatements
o Common usage does not mean that a lot of people necessarily participate in the activity
(think of the provision of electricity).
o Time and place are factors to consider in determining whether an activity is abnormally
dangerous.
51
 Whether an activity is abnormally dangerous is a matter of law
 Blasting and/or transportation of gasoline = paradigm abnormally dangerous activity
o Defendant engages in blasting for his own benefit and is aware of the risks.
o Activity is likely to cause harm even if defendant adopts all reasonable precautions.
o Activity on its own causes the harm with very little contribution from the conduct of the
victim or other actors.
o Trend = dumping toxic waste into landfills = abnormally dangerous
 Defenses/Scope of Liability (§24, §25)
o Assumption of risk = a defense
o Contributory/comparative negligence = used to not be relevant in strict liability claims;
now, may reduce the recovery OR take the claim out of the strict liability realm
 Restatement, 1st., used “ultra-hazardous” (too strict a standard). Restatement, 2d., switched to
“abnormally dangerous” and included a list of factors to consider, Restatement 3d.,
maintained “abnormally dangerous” and simplified the elements
Summary
Restatements
Restatement of Torts §519 Miscarriage of Ultra Hazardous Activities Carefully Carried On
Except as stated in §§521-4, one who carries on an ultra hazardous activity is liable to another
whose person, land or chattels the actor should recognize as likely to be harmed by the
unpreventable miscarriage of the activity for the harm resulting thereto from that which makes
the activity ultra hazardous, although the utmost care is exercised to prevent the harm.
Restatement of Torts §520 Definition of Ultra Hazardous Activity

An activity is ultra hazardous if it
(a) necessarily involves a risk of serious harm to the person, land or chattels of others which
cannot be eliminated by the exercise of the utmost care, and
(b) is not a matter of common usage.
Restatement, 2d., §519 General Principle

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to
the person, land or chattels of another resulting from the activity, although he has
exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the
activity abnormally dangerous.
Restatement, 2d., §520 Abnormally Dangerous Activities

In determining whether an activity is abnormally dangerous, the following factors are to be
considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
52
(f) extent to which its value to the community is outweighed by its dangerous attributes
 Shift from “ultra hazardous” in the first Restatement to “abnormally dangerous” in the
Restatement 2d. to reflect that the activity must be dangerous relative to its time and place.
Restatement, 3d., §20 Abnormally Dangerous Activities

(a) An actor who carries on an abnormally dangerous activity is subject to strict liability for
physical harm resulting from the activity.
(b) An activity is abnormally dangerous if:
(1) the activity creates a foreseeable and highly significant risk of physical harm even
when reasonable care is exercised by all actors; and
(2) the activity is not one of common usage.
Restatement, 3d., §24 Scope of Liability

Strict liability under §§20-23 does not apply
(a) if the person suffers physical or emotional harm as a result of making contact with or
coming into proximity to the defendant’s animal or abnormally dangerous activity for the
purpose of securing some benefit from that contact or that proximity; or
(b) if the defendant maintains ownership or possession of the animal or carries on the
abnormally dangerous activity in pursuance of an obligation imposed by law.
Restatement, 3d., §25 Comparative Responsibility

If the plaintiff has been contributorily negligent in failing to take reasonable precautions, the
plaintiff’s recovery in a strict-liability claim under §§20-23 for physical or emotional harm is
reduced in accordance with the share of comparative responsibility assigned to the plaintiff.
 Contributory/comparative negligence might establish that defendant is not subject to strict
liability, but is not a defense in cases that proceed under the strict liability regime
 Express assumption of risk is a defense
WA: Pyrotechnicians are strictly liable for damages caused by fireworks displays.
Cases
Rylands v. Fletcher
Exchequer Chamber (1866) – p. 770
Strict liability imposed for the damage to a neighbor’s land caused by water “escaping” from a
reservoir on defendant’s land.
Main Point: Defendant is strictly liable when use of his land is extraordinary and unusual and
something “escapes” causing mischief or danger.
Losee v. Buchanan
A steam boiler in the defendant’s mill exploded and damaged buildings on the plaintiff’s
property. Defendant was held not liable because of lack of fault or negligence.
Main Topic: Court rejects Rylands v. Fletcher, but most American jurisdictions ultimately
accept it.
53
Klein v. Pyrodyne Corp.

Plaintiffs were injured at a fireworks display on the Fourth of July.
Main Point: Pyrotechnicians are strictly liable for damages caused by fireworks displays. Court
discusses the factors of an abnormally dangerous activity in Restatement, 2d., §520.
 Minority opinion
Indiana Harbor RR v. American Cyanmid

Circuit Court of Appeals, Seventh Circuit (1990) – p. 797
Defendant is the shipper of a dangerous chemical and plaintiff is the carrier. When the chemical
leaked, defendant was charged with the costs of decontamination measures.
Main Point: Strict liability is not necessary because reasonable care can reduce and eliminate
the risk. Additionally, the carrier is in the best position to protect against the risk here.
Foster v. Preston Mill Co.

Mink farmer could not recover from the blasting of the defendant that caused the mink to kill
their young. Strict liability cannot be used to protect the plaintiff from unusual use of his own
land. Here the damage was a result of the sensitivity of the mink, not the blasting.
Main Point: Strict liability is only applied in circumstances where the injury is within the kind
or risk that makes the activity abnormally dangerous.
Products Liability
Main Topics
 Historically, recovery in products liability cases was limited by the requirement of privity.
Foreseeability played a role in relaxing the privity requirement as courts extended protection
in cases where there was risk of injury to reasonably foreseeable consumers/users of a
negligently designed product.
 Warranty law has been important in the development of products liability tort law.
o Typically, a personal injury must occur for recovery to be available in tort law. Any
claims for economic loss must be made under contract law. Though, some states allow
recovery in tort for property damage and economic loss that result from a “sudden and
calamitous” defect. See Note 3 on pp. 841-42.
 Judge Traynor’s concurring opinion in the exploding coke bottle case paved the way for strict
product liability  his focus was on the public policy and the allocation of risk
o Move to “strict liability” in product defect cases allowed everyone in the supply chain to
become defendants.
 Consumer expectations v. Risk-utility test
o Restatement, 2d., adopted a consumer expectations test for defects – that a product is
defective when the risks it poses are “beyond the contemplation” of the ordinary
consumer. See Comments g and i to Restatement, 2d., §402A.
54
 CA rejected consumer expectations
o Restatement, 3d., adopts a risk-utility test for defects, but does not completely abandon
consumer expectations in the analysis. See comment f and g to Restatement, 3d., §2.
 Risk-utility is sometimes likened to Judge Hand’s negligence balancing test in
Carroll Towing.
 Challenging question: What constitutes “normal” use of a given product?
 Latent defects v. patent defects
 Defects that arise after manufacture. See Note 6 on p. 878.
 Restatement, 3d., differentiated between different types of “defects.”
 Manufacturing Defect
o The particular product does not conform to the design it was supposed to have.
o Strict liability if plaintiff can prove the product was defective at the time it left
possession of the defendant.
 Often requires circumstantial evidence, especially when the product is destroyed.
 Can be difficult to tell if the defect caused the accident or the accident caused the
defect.
 Design Defect
o Requires showing of reasonable alternative design.
 What if the alternative design is patented?
o Exception for unavoidably unsafe products (ex. prescription drugs) in comment k to
Restatement, 2d., §402A.
 Restatement 3d., §6(c) provides that a drug is unavoidably unsafe as long as any
reasonable doctor would prescribe it to any patient. Very strict standard, but has not
replaced comment k.
 Crashworthiness
 Wade test (most influential alternative, called risk-utility test):
o Usefulness and desirability of the product—its utility to the user and to the public as a
whole
o The safety aspects of the product—the likelihood that it will cause injury and the
probable seriousness of the injury
o The availability of a substitute product which would meet the same need and not be as
unsafe
o The manufacturer’s ability to eliminate the unsafe character of the product without
impairing its usefulness or making it too expensive to maintain its utility
o The user’s ability to avoid danger by the exercise of care in the use of the product
o The user’s anticipated awareness of the dangers inherent in the product and their
avoidability because of general public knowledge of the obvious condition of the product,
or of the existence of suitable warnings or instructions
o The feasibility, on the part of the manufacturer, of spreading the loss by setting the price
of the product or carrying liability insurance
o Note: Factors and five and six in fact incorporate consumer expectations of risk-utility
test—retained by comments f and g in Restatement 3d, Products Liability, 2 Risk-utility
test done with regard to risks and benefits or product as they are at the time of trial rather
than time of manufacture
 Warning Defect
o Requires reasonable warning.
55
o Adequacy of warning.
 Procedural adequacy (Is it easy to read? Obvious?) v. Substantive accuracy (does it
include the correct information?)
o Challenge is to show that if the warning had been present/different, the plaintiff would
have heeded it and the risk would have been reduced.
o Exceptions: Bulk suppliers and learned intermediaries
 Most jurisdictions hold that a prescription drug manufacturer’s duty to warn in
extends only to the doctor.
 Restatement, 3d., §6(d)(1) provides a very narrow set of circumstances for when a
drug manufacturer must warn the patient directly.
 Bulk supplier cases deal with sophisticated intermediate users (ex. chemical supplier
ships chemicals via railroad tanker to the company that uses the chemicals to
manufacturer something else. The bulk supplier does not have a duty to warn the
consumer.)
Summary
Restatements
Restatement, 2d., §402A Special Liability of Seller of Product for Physical Harm to User or
Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical harm thereby caused to the
ultimate user or consumer or to his property, if
a. The seller is engaged in the business of selling such a product, and
b. It is expected to and does reach the user or consumer without substantial change
in the condition in which it is sold.
(2) The rule stated in subsection (1) applies although
a. The seller has exercised all possible care in the preparation and sale of his
product, and
b. The user or consumer has not bought the product from or entered into any
contractual relation with the seller.
 The Restatement takes no position on whether the rules stated in this section apply to harm to
persons other than consumers, to the seller of a product expected to be processed or
otherwise substantially changed before it reaches the consumer, or to the seller of a
component part of a product to be assembled.
Restatement, 2d., §402B Misrepresentation by Seller of Chattels to Consumer

One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes
to the public a misrepresentation of a material fact concerning the character or quality of a chattel
sold by him is subject to liability for physical harm to a consumer of the chattel caused by
justifiable reliance upon the misrepresentation, even though
(a) it is not made fraudulently or negligently, and
(b) the consumer has not bought the chattel from or entered into any contractual relation with
the seller.
56
Restatement, 3d., §2 Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a manufacturing
defect, is defective in design, or is defective because of inadequate instructions or warnings. A
product:
(a) contains a manufacturing defect when the product departs from its intended design even
though all possible care was exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product could have
been reduced or avoided by the adoption of a reasonable alternative design by the seller
or other distributor, or a predecessor in the commercial chain of distribution, and the
omission of the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of
harm posed by the product could have been reduced or avoided by the provision of
reasonable instructions or warnings by the seller or other distributor, or a predecessor in
the commercial chain of distribution, and the omission of the instructions or warnings
renders the product not reasonably safe.
Restatement, 3d., §3 Circumstantial Evidence Supporting Inference of Product Defect

It may be inferred that the harm sustained b the plaintiff was caused by a product defect existing
at the time of sale or distribution, without proof of a specific defect, when the incident that
harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than product defect
existing at the time of sale or distribution.
Restatement, 3d., §6 Liability of Commercial Seller of Distributor for Harm Caused by

Prescription Drugs and Medical Devices
(a) A manufacturer of a prescription drug or medical device who sells or otherwise
distributes a defective drug or medical device is subject to liability for harm to persons
caused by the defect. A prescription drug or medical device is one that ma be legally sold
or otherwise distributed only pursuant to a health-care provider’s prescription.
(b) For purposes of liability under subsection (a), a prescription drug or medical device is
defective at the time of sale or other distribution the drug or medical device:
1. contains a manufacturing defect as defined in §2(a); or
2. is not reasonably safe due to defective design as defined in subsection (c); or
3. is not reasonably safe due to inadequate instructions or warnings as defined in
subsection (d).
(c) A prescription drug or medical device is not reasonably safe due to defective design if the
foreseeable risks of harm posed by the drug or medical device are sufficiently great in
relation to its foreseeable therapeutic benefits that reasonable health-care providers,
knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug
or medical device for any class of patients.
(d) A prescription drug or medical device is not reasonably safe due to inadequate
instructions or warnings if reasonable instructions or warnings regarding foreseeable risks
of harm are not provided to:
1. Prescribing and other health-care providers who are in a position to reduce the risks
of harm in accordance with the instructions or warnings; or
57
2. The patient when the manufacturer knows or has reason to know that health-care
providers will not be in a position to reduce the risks of harm in accordance with the
instructions or warnings.
(e) A retail seller or other distributor of a prescription drug or medical device is subject to
liability for harm caused by the drug or device if:
1. At the time of sale or other distribution the drug or medical device contains a
manufacturing defect as defined in §2(a); or
2. At or before the time of sale or other distribution of the drug or medical device the
retail seller or other distributor fails to exercise reasonable care and such failure
causes harm to persons.
Restatement, 3d., §7 Liability of Commercial Seller of Distributor for Harm Caused by Defective
Food Products
One engaged in the business of selling or otherwise distributing food products who sells or
distributes a food product that is defective … is subject to liability for harm to persons or
property caused by the defect. Under §2 (a), a harm-causing ingredient of the food product
constitutes a defect if a reasonable consumer would not expect the food product to contain that
ingredient.
 Consumer expectations test
Restatement, 3d., §9 Liability of Commercial Product Seller or Distributor for Harm Caused by
Misrepresentation
One engaged in the business of selling or otherwise distributing products who, in connection
with the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation of
material fact concerning the product is subject to liability for harm to persons or property caused
by the misrepresentation.
 Case law is undecided as to how to treat innocent misrepresentations to individuals (rather
than the public) and misrepresentations made through an intermediary.
DE, MA, NC: Have not adopted the tort products liability approach. In these states, a consumer
must make a negligence claim or breach of warranty claim against the manufacturer.
AL, CO, IA, KY, LA, ME, MI, MN, MS, MT, NJ, NM, NY, PA, TX, WV: Exclusively employ a
risk-utility test.
AK, AZ, AR, CA, CT, FL, HI, IL, MD, NH, ND, OH, OR, SD, TN, UT, WA: Modified/hybrid
consumer expectations and risk-utility test for defects.
ID, IN, KS, NB, NV, OK, RI, VT, WI, WY: Exclusively employ a consumer expectations test.
NJ, TX: Statute requiring a plaintiff present a feasible alternative design in order to recover in a
design defect case.
WV: Has completely abolished the learned intermediary rule in warning cases.
58
SC: Adopted Restatement, 2d., §402A as a statute.
Majority: Comment k (unavoidably unsafe exception) should be applied on a case-by-case basis
Cases
Thomas v. Winchester
“The Belladonna Case.” Plaintiff purchased dandelion extract from a pharmacist, but it was
really belladonna (a poison) mislabeled as dandelion extract and the patient became very ill.
Main Point: The manufacturer who mislabeled the medicine was held liable because of the
foreseeability that mislabeled medicine would result in an injury to somebody. Negligence of the
intermediate vendors is not a defense. Deals with “implements of destruction” (poison, here).
MacPherson v. Buick Motor Co.

Judge Cardozo. An accident occurred when the wheel of a car collapsed. The court found that the
car manufacturer did have a duty of care to the final buyer of the car.
Main Point: Manufacturers of dangerous products have a duty to inspect the final product for
safety problems and owe that duty to anybody who can reasonably foreseen to use the product.
This is the “beginning of the end” of the privity requirement in products liability.
Greenman v. Yuba Power Products, Inc.

Plaintiff was using a “Shopsmith,” a customizable power tool for wood-working. Manufacturer
wanted to exclude his claim for failure to abide by the notification provisions in the warranty.
The court said product liability is governed by strict liability in tort, not by contract warranties.
Main Point: (Traynor) A manufacturer is strictly liable in tort when an article he places on the
market, knowing that it is to be used without inspection for defects, proves to have a defect that
causes injury to a human being. Big Deal Case.
Smoot v. Mazda Motors of America, Inc.

Circuit Court of Appeals, Seventh Circuit (2006) – p. 854
Judge Posner. Plaintiff’s car had been recalled for airbag deployment. After receiving the recall
notice, but before getting the vehicle service, plaintiff ran over a pothole or chunk of asphalt and
the airbags deployed. Court required expert testimony but excluded the plaintiff’s expert.
Main Point: Evidence required to show a manufacturing defect.
Branham v. Ford Motor Co.

Supreme Court of SC (2010) – p. 861
Case regarding the suspension system used in the Ford Bronco – Ford when with the Twin I-
Beam for marketing purposes (it was used in all of their trucks) rather than the safer
MacPherson. Evidence showed Ford was aware of the safety concerns of using the Twin I-Beam.
Main Point: Court uses a risk-utility test (as opposed to consumer expectations) for design
defect cases with the requirement that plaintiffs show a feasible alternative design was available
at the time of manufacturing.
59
Riley v. Becton Dickson Vascular Access, Inc.
U.S. District Court E.D. of PA (1995) – p. 880
Plaintiff was a nurse who contracted HIV from a needle stick while withdrawing an IV catheter.
Plaintiff showed an alternative design was available – where the needle withdrew into a plastic
protective sheath. The court found that the alternative design was more expensive and does not
eliminate the risk of a needle stick.
Main Point: Risk-utility analysis and Restatement, 2d., §402A factors determine that the
product is not unreasonably dangerous, and does not have a design defect.
Grundberg v. Upjohn
Supreme Court of UT (1991) – p. 895
Plaintiff killed her mother while under the influence of the prescription insomnia treatment
Halcion. Court must decide whether to adopt the “unavoidably unsafe product” exception to
strict product liability.
Main Point: Court adopts the “unavoidably unsafe product” exception to strict product liability
for design defects as a matter of law to apply to all FDA-approved prescription drugs. (certainty
in the drug market).
Dissent: Wants the exception to be considered on a case-by-case basis (concerned with FDA’s
reliability and exceptions applying equally to rabies treatments as prescription deodorant). 
Most jurisdictions take the dissent’s case-by-case approach.
Johnson v. American Cyanamid Co.

Supreme Court of KS (1986) – p. 907
Plaintiff contracted contact polio after his child was administered the oral Sabin vaccine. Design
defect claim was barred by the unavoidably unsafe product exception, so plaintiff put forward a
failure to warn claim. Court did not allow it.
Main Point: Warning defect case. Power of the learned intermediary (doctor) between the
manufacturer and consumer; deference to the FDA-approved warning.
Dissent: The sufficiency of the warning is an issue of fact that should be submitted to the jury.
Economic Injury
Economic Loss Rule
Main Topics
 “Economic Loss Rule” – one does not owe a duty not to cause solely economic losses to
another.
o No duty determination
o Deals with injury that is solely economic. If a plaintiff can establish a personal injury, the
plaintiff can recover for economic injury like lost wages and damage to property.
o Rationale: Many economic lost cases are “nonstranger” situations, where the injured can
recover through some other remedy (mostly contract law). In “stranger” situations, the
concern is where to draw the line of liability.
 Ask two questions before allowing tort recover:
3.) What, if anything, does recovery in tort provide to the plaintiff that is different
from a contract remedy?
60
4.) What, in theory, explains the existence of a tort remedy given the availability of
contract law.
 Exceptions
o Attorney and accountant malpractice
o Tortious interference with contract
o Misrepresentation and fraud (see below)
o “Sudden and calamitous” product defects (in some jurisdictions)
o Commercial fisherman (narrow exception).
 Fiduciary – one in whom another has justifiably placed trust and confidence to act in the best
interest of the other.
o Some relationships are fiduciary in nature as a matter of law (ex. attorney-client,
partnerships, principal-agent). Otherwise, whether a relationship is fiduciary in nature is a
question of fact.
o Fiduciary duties: loyalty, confidence, communication, competence
Summary
Restatements
Cases
Aikens v. Debow
Supreme Court of WV (2000) – p. 588
Econo-lodge owner could not recover lost profits from the truck driver who caused the overpass
bridge access to the hotel to be closed for 19 days.
Main Point: An individual cannot recover for purely economic harm absent a special
relationship or contract with the alleged tortfeasor (which would establish a duty because the
specific injury and plaintiff would be foreseeable).
Intentional Misrepresentation/Fraud
Main Topics
 Elements of Fraud:
o A false representation
o The speaker’s knowledge of its falsity or ignorance of the truth
o The speaker’s intent that it should be acted upon by the hearer in the manner reasonably
contemplated
o The hearer’s ignorance of the falsity of the statement
o The hearer’s reliance on its truth
o The hearer’s right to rely on its truth
o The hearer’s consequent and proximately caused injury
o **Taken from MO law (see Note 1 on p. 1266).
61
 Measure of damages: Benefit of the bargain (expectation) v. Out-of-pocket (reliance)
o Tort law is not as strict as contract law in allowing consequential damages.
o Jurisdictions are split, but a majority do not allow recovery for mental anguish.
 Challenges of opinions as fact
 Concealment = fraud, nondisclosure ≠ fraud
 Contributory negligence is not a defense.
Summary
Restatements
Restatement, 2d., §525 Liability for Fraudulent Misrepresentation
One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the
purpose of inducing another to act or to refrain from action in reliance upon it, is subject to
liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the
misrepresentation.
Restatement, 2d., §526 Conditions under which Misrepresentation Is Fraudulent (Scienter)

A misrepresentation is fraudulent if the maker
(a) knows or believes that the matter is not as he represents it to be,
(b) does not have the confidence in the accuracy of his representation that he states or
implies, or
(c) knows that he does not have the basis for his representation that he states or implies.
Restatement, 2d., §533 Representation Made to a Third Person

The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another
who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the
other, is made to a third person and the maker intends or has reason to expect that its terms will
be repeated or its substance communicated to the other, and that it will influence his conduct in
the transaction or type of transaction involved.
Restatement, 2d., §538 Opinion

A representation is one of opinion if it expresses only:
(a) the belief of the maker, without certainty, as to the existence of a fact; or
(b) his judgment as to quality, value, authenticity, or other matters of judgment.
Restatement, 2d., §545 Misrepresentation of Law

(1) If a misrepresentation as to a matter of law includes, expressly or by implication, a
misrepresentation of fact, the recipient is justified in relying upon the misrepresentation
of fact to the same extent as though it were any other misrepresentation of fact.
(2) If a misrepresentation as to a matter of law is only one of opinion as to the legal
consequences of facts, the recipient is justified in relying upon it to the same extent as
though it were a representation of any other opinion.
62
Cases
Follo v. Florindo
Supreme Court of VT (2009) – p. 1258
Plaintiff purchased an inn, but found that the actual profits did not match what he expected based
on the information he had obtained from the pervious owners during the sale. Held that the
previous owners had fraudulently shared false information about the business during the sale.
Main Point:
Negligent Misrepresentation
Main Topics
 Same elements as fraudulent misrepresentation, except for the defendant’s state of mind.
Here, the plaintiff must show that the defendant failed to exercise reasonable care with regard
to whether or not the representation was true.
Summary
Restatements
Restatement, 2d., §552 Information Negligently Supplied for the Guidance of Others
(1) One who in the course of his business, profession, or employment, or in any other
transaction in which he has a pecuniary interest, supplies false information for the
guidance of others in their business transactions, is subject to liability for pecuniary loss
caused to them by their justifiable reliance upon the information, if he fails to exercise
reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in subsection (3), the liability stated in subsection (1) is limited to loss
suffered
a. By the person or one of a limited group of persons for whose benefit and guidance
he intends to supply the information or knows that the recipient intends to supply
it; and
b. Through reliance upon it in a transaction that he intends the information to
influence or knows that the recipient so intends or in a substantially similar
transaction.
(3) The liability of one who is under a public duty to give the information extends to loss
suffered by any of the class of persons for whose benefit the duty is created, in any of the
transactions which it is intended to protect them.
MS, WI: Retain a foresight test in finding an auditor’s liability for negligent misrepresentation to
third parties.
Cases
Ellis v. Grant Thornton, LLP
Circuit Court of Appeals, Fourth Circuit (2008) – p. 1275
63
Plaintiff accepted a job as a bank president based on representations by the bank’s accountant
that the bank was solvent and would receive a clean audit opinion. The bank was not solvent.
Plaintiff could not recover because the false statement was not meant for the plaintiff.
Main Point:
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Torts Course Outline Breaks Down Intentional Torts, Negligence, and More

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Torts Course Outline Breaks Down Intentional Torts, Negligence, and More

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Torts 180.02.

F15 Course Outline

Knowledge of the contact.

Restatement, 3d., §2 Recklessness

Restatement, 2d., §13 Battery: Harmful Contact

Restatement, 2d., §16 Character of Intent Necessary

Restatement, 2d., §18 Battery: Offensive Contract

Restatement, 2d., §19 What Constitutes Offensive Contact

Restatement, 2d., §21 Assault

Restatement, 2d., §22 Attempt Unknown to Other

Restatement, 2d., §31 Threat by Words

Beauchamp v. Dow Chemical Company

Mulloy v. Hop Sang

Restatement, 2d., §164 Intrusions Under Mistake

Restatement, 2d., §217 Ways of Committing Trespass to Chattel

Restatement, 2d., §218 Liability to Person in Possession

Vincent v. Lake Erie Transportation Co.

Restatement, 3d., §6 Liability for Negligence Causing Physical Harm

Restatement, 3d., §9 Emergency

Restatement, 3d., §10 Children

Restatement, 3d., §11 Disability

Restatement, 3d., §12 Knowledge and Skills

Haley v. London Electricity Board

Barker v. City of Philadelphia

United States v. Carroll Towing Co.

Pitre v. Employers Liability Assurance Corps.

Restatement, 3d., § 18 Negligent Failure to Warn

CA: Specific foreseeability. See Note 2b on p. 274.

TX: No social host liability

Palsgraf v. Long Island Railroad

Strauss v. Belle Realty Company

Restatement, 3d., §40 Duty Based on Special Relationship with Another

Restatement 3d., §42 Duty Based on Undertaking

Restatement 3d., §43 Duty to Third Parties Based on Undertaking to Another

Price v. E.I. DuPont de Nemours & Co.

Grimes v. Kennedy Krieger Institute, Inc.

Maldonado v. Southern Pacific Transportation Co.

Thompson v. County of Alameda

Tarasoff v. Regents of University of California

Restatement, 3d., §49 Possessor of Land Defined

Restatement, 3d., §50 Trespasser Defined

Restatement, 3d., §51 General Duty of Land Possessors

Restatement, 3d., §52 Duty of Land Possessors to Flagrant Trespassers

WA: Found a guest at a Tupperware party was an invitee.

MS: Visitor status is a question of fact for the jury.

MO: Visitor status is a question of law for the court.

NC: No distinction between invitees/licensees; no-duty to trespassers. (Nelson v. Freeland)

NJ: Abolished the firefighter’s rule per statute.

Posecai v. Walmart Stores, Inc.

DC: Abolished parent-child immunity completely

CA, AZ: Applies the reasonable parent standard

Footnotes on p. 515 give the different jurisdictional approaches to parental immunity.

Restatement, 3d., §15 Excused Violations

Dempsey v. Addison Crane Co.

Res Ipsa Loquitur

George Foltis, Inc. v. City of New York

Swiney v. Malone Freight Lines

Restatement, 3d., §37 Multiple Sufficient Causes

Restatement, 1st., §876 Persons Acting in Concert

Kramer Service v. Wilkins

Restatement, 3d., §29 Limitations on Liability for Tortious Conduct

Restatement, 3d., §31 Preexisting Conditions and Unforeseeable Harm