Torts

French
A

I. Chapter One: Introduction and Overview

a. Introduction to Tort Law
i. Torts is about remedying wrongs
1. Provides a legal cause of action providing injured individuals and
entities recovery for wrongs committed against them resulting in
an injury to their person or property
2. Primary purpose: restore the person to his/her pre-injury status
ii. Primarily state-driven
1. Not uniform
iii. Restatements
1. Trying to put together majority rules from around the country
2. Not binding, states pick and choose what to adopt
3. Closest one can get to a uniform law
iv. Weaver v. Ward (1616) (10)
1. Δ accidentally shot Π in military exercise
2. Introduces the notion of fault in tort law
a. Historically you were automatically responsible if
something happened
b. An injury is not enough to allow relief – there must also be
fault
v. Brown v. Kendall (1850) (12)
1. Δ accidentally hit Π with stick when attempting to break up dog
fight
2. The burden of proof is on the party seeking the remedy (Π not Δ)
vi. Hypo 1-1: Π injured in car accident after Δ lost consciousness despite
never having fainted before and being in good health
1. Should probably not be liable regardless of fault because he was
driving because of fault ideas from Weaver
2. Should not be at fault for negligently causing accident because he
wasn’t negligent
a. The best answer is probably that he’s not at fault because
he was exercising due care
vii. Spanno v. Perini Corp. (1969) (17)
1. Π’s garage damaged by blasting done to create a tunnel
2. Π did not have to prove any negligence because blasting is an
inherently dangerous enough activity to warrant absolute liability
(strict liability)
a. Theory: between innocent victim and tortfeasor, the latter
should carry the blame (pervasive idea in torts)
b. So even with fault idea in Weaver, there are still times
where fault is irrelevant
II. Chapter Two: Intentional Torts

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a. Four elements of an intentional tort
i. Intent, action, causation, injury
b. Intent
i. Garratt v. Dailey (1955) (23)
1. Π fell after minor Δ pulled chair away from where it used to be
2. The difference between specific and general intent
a. Specific: intent to cause that injury/contact/harm
b. General: know with substantial certainty that something
bad will happened as a result of the actions – more than just
a possibility
c. Restatement (Second) of Torts §8A
i. Intent is defined as (1) desiring to cause the
consequences of one’s act or (2) believing the
consequences are substantially certain to result from
one’s act
3. Minors are responsible for their intentional torts
a. Age can still be relevant as it does to child’s knowledge,
capacity, and understanding
4. Liability insurance is not admissible as it would seek to prejudice a
jury
ii. Spivey v. Battaglia (1972) (29)
1. Π paralyzed on left side of face and mouth after Δ (fellow
employee) tried to tease her by putting his arm around her
2. Reasonable person could not have been substantially certain of
unforeseeable bizarre result
a. The line between intent and negligence
b. Incorrect result
c. Restatement (Third) § 1: “In general, the intent required in
order to show that the Δ’s conduct is an intentional tort is
the intent to bring about harm (more precisely to bring
about the type of harm that the particular tort seeks to
protect against.”
i. Δ intended to make contact that would be
unwelcome
iii. Ranson v. Kitner (1888) (33)
1. Δ accidentally shot Π’s dog that he thought was a wolf
2. There was an intent to kill the animal if not specifically the dog so
liability is appropriate
a. Δ’s good faith or mistake does not negate intent
3. Hypo 2-1: Vice President accidentally shot Friend when trying to
shoot quail
a. Could still be liable because he had the intent to make
offensive contact or to injure despite the target
iv. McGuire v. Almy (1937) (34)
1. Mentally ill Δ struck nurse Π with leg of a low-boy while in the
middle of a violent attack

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 2. An insane person can be liable for an intentional tort under the
same test as a sane person
v. Altieri v. Colasso (1975) (38)
1. Δ threw a rock to scare someone else but it hit Π in the eye
2. Transferred intent doctrine
a. Works with the five intentional torts
i. Battery, assault, false imprisonment, trespass to
land, trespass to chattel
b. If Δ intended to commit one of those 5 but committed a
different one, the actions still amount to that tort
c. Facilitates Π’s task of proving intent for any one of the five
intentional torts by establishing that Δ intended to commit
any of them
c. Battery
i. Two types according to the Restatement (Second):
1. § 13: Battery: Harmful Contact
a. An actor is subject to liability to another for battery if … he
acts intending to cause a harmful or offensive contact with
the person of the other … and … a harmful contact with the
person of the other directly or indirectly results
b. Definition of harmful conduct § 15: “any physical
impairment of the condition of another’s body, or physical
pain or illness”
2. § 18: Offensive Contact
a. An actor is subject to liability to another for battery if … he
acts intending to cause a harmful or offensive contact with
the person of the other … and … an offensive contact with
the person of the other directly or indirectly results
b. Definition of offensive contact § 19: “bodily contact …
offend[ing] a reasonable sense of personal dignity”
i. Some jurisdictions consider this more subjectively
to the person instead of objective reasonable person
ii. Some jurisdictions consider whether or not the Δ
has some special reason to believe that the person
has some special sensitivity or issue
ii. Wallace v. Rosen (2002) (42)
1. Δ touched Π’s back while she was standing on the stairs during a
fire drill and she claims she lost her balance and sustained injuries
2. Not every form of touching will constitute a battery (crowded
world)
3. Recklessness does not satisfy the intent requirement
4. Reasonable person judging whether contact was offensive
iii. Hypo 2-2: Δ empties waste containers from tour bus over bridge onto boat
and passengers
1. Needs to satisfy either general or specific intent
a. Specific: intended to dump waste on people

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 b. General: substantially certain waste would hit people
2. Probably can’t satisfy either intent but this might be negligence
iv. Hypo 2-3: Δ puts toothpick in Π’s drink as a joke
1. Needs to satisfy either specific or general intent
a. Doesn’t satisfy specific intent to do the harm
b. Could satisfy general intent
i. There was substantial certainty that he would drink
the drink where the toothpick was
v. Fisher v. Carrousel Motor Hotel, Inc. (1967) (51)
1. Δ snatched plate out of Π’s hand because of racial discrimination
but did not touch him or cause him apprehension
2. A battery is really dealing with personal dignity violations
3. An invasion of your person or things that you are intimately
connected with can still constitute a battery
a. Something in immediate possession that it intimately
connected to body
d. Assault
i. Restatement (Second) § 21. Assault
1. An actor is subject to liability to another for assault if 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 the other is thereby put in such imminent
apprehension.
ii. Two ways to have assault
1. Imminent apprehension where you think you will be touched in a
way you don’t want to be
2. There is an attempted battery you think will be successful
iii. Western Union Telegraph Co. v. Hill (1933) (56)
1. Π went to Δ’s office to get him to fix her clock and said that he
reached for her with a sexually suggestive comment but the
physical evidence suggests he would not have been able to reach
her
2. The contact has to be possible for it to constitute an assault
3. Words alone are not sufficient to constitute an assault
a. They must be coupled with an act to put Π in reasonable
apprehension of imminent harmful or offensive contact
4. Apprehension and not fear is required
a. Apprehension: the belief that Δ’s act is capable of
immediately inflicting contact upon Π unless something
further occurs
b. Π does not have to fear that contact will ensue
iv. Hypo 2-5: Δ teacher slammed her hand on a desk where Π student is
sleeping and he suffers broken eardrum
1. Probably does not satisfy assault requirements
a. He was sleeping and could not have experienced
apprehension

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 2. There is an argument that could be made for battery
a. General intent that something would happen
b. The desk could be intimately connected to him like the
plate in Fisher
e. False Imprisonment
i. Restatement (Second) § 35. False Imprisonment
1. An actor is subject to liability to another for false imprisonment if
he acts intending to confine the other or a third person within
boundaries fixed by the actor, and his act directly or indirectly
results in such a confinement of the other, and the other is
conscious of the confinement or is harmed by it
ii. Big Town Nursing Home, Inc. v. Newman (1970) (60)
1. Π tried to leave Δ nursing home several times but was constantly
brought back and restrained and kept in a wing for drug addicts,
alcoholics, and mentally unstable people
2. Satisfying the three elements:
a. Confined within physical boundaries of the nursing home
b. Restrained in the nursing home
c. Knew he was being restrained and suffered actual physical
harm
3. False imprisonment is the direct restrain of one person of the
physical liberty of another without adequate legal justification
a. Without adequate legal justification is an important element
missing from the Restatement definition
4. If there is a reasonable means for escaping/getting away you are
not imprisoned – test
iii. Hypo 2-6: Π was hitchhiker in Δ’s car who asked to be let out but was
refused by Δ
1. Can satisfy the false imprisonment requirements
2. There is not a reasonable means of escape
3. Consent to confinement can be withdrawn
iv. Hypo 2-7: Π was on a plane that was re-routed and the passengers are told
by Δ Airline that they must stay on the plane for 10 hours under poor
conditions
1. Satisfies the three elements of false imprisonment
2. Would be false imprisonment unless there is an exception allowing
there to be a legal authority for their confinement
v. Parvi v. City of Kingston (1977) (64)
1. Δ police officers took Π to an abandoned golf course after being
picked up for drunken behavior to “dry out” and Π was injured
when he wandered onto a highway that had no fences or barriers
2. Police do not have the authority to order you to do something if
you are not being charged with something
a. Ordering them into a car created a situation of false
imprisonment

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 3. Case could demonstrate an example of when being conscious of
false imprisonment is relevant
a. Was drunk and could not remember after the fact
b. The fact that Π asked to be let out somewhere else could
establish consciousness
c. Contemporaneous awareness of the confinement is
essential to the tort of false imprisonment (not the ability to
recall the confinement later)
4. Confinement for false imprisonment can be secured by actual or
apparent physical barriers or threats of physical force or by other
duress sufficient to make Π’s consent ineffective
vi. Hardy v. LaBelle’s Distributing Co. (1983) (69)
1. Π was suspected of stealing a watch where she was a sales clerk.
She was brought into the office under a false pretense but
voluntarily stayed and took a lie detector test
2. Moral persuasion and pressure are insufficient to constitute force
or threat in false imprisonment
a. Demonstrates that there is still some choice to remain in
confinement
vii. Hypo 2-8: Δ ordered a strip search of her employees and told them they
could not leave until they complied
1. Whether or not the employees were really free to leave is open to
interpretation
2. Was there a reasonable means of escape?
3. How long you are imprisoned is not relevant in the determination
viii. Enright v. Groves (1977) (72)
1. Δ police officer demanded Π’s license after he suspected her of
violating the dog leash ordinance. When she refused he arrested
her and dislocated her shoulder.
2. If you are arrested for something that you are later convicted off
then a false imprisonment claim will not lie
3. False imprisonment does lie when the police officer does not have
legal authority for the arrest
a. Was he arresting her for the dog ordinance or not producing
her license?
f. Trespass to Land
i. Restatement (Second) § 158. Liability for Intentional Intrusions on Land
1. 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 her 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.
ii. There can be liability even if there are no damages
iii. If you enter someone’s land by accident the intent requirement is still
satisfied

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 1. There is an intent to walk on the land even if there is not an intent
to commit a tort or commit trespass
iv. Dougherty v. Stepp (1835) (75)
1. The act of entering someone else’s land constitutes a trespass even
if no damages are shown
v. Herrin v. Sutherland (1925)(77)
1. Δ hunting birds and shot in the air over Π’s land
2. Ownership of land applies to the air above land as well as the land
below it
3. Connection to Restatement (Second) § 159
a. Allows aircraft to fly in the air without trespass unless it
enters into the immediate reaches of the airspace next to the
land and it interferes substantially with the other’s use and
enjoyment of his land
vi. Rogers v. Board of Road Commissioners for Kent County (1947) (79)
1. Δ placed a snow fence in Π’s field but did not remove it and Π ran
over it on his mower and died
2. Consent to come onto someone’s land or place something on
someone’s land can be removed
a. Once it is removed, you have committed a trespass if you
do not leave or remove the thing
b. Permission to enter one’s property can be conditioned in
terms of time, area, and purpose
vii. Bradley v. American Smelting and Refining Co. (82)
1. Πs live 4 miles away from Δ’s smelter which emits gases that are
deposited on Π’s land despite no proof of actual damages
2. In this kind of gaseous, particulate trespass, you do need to prove
actual damages even though you do not in other kinds of trespass
a. In a nuisance claim you do need to prove actual damages so
the two issues are somewhat collapsed with reference to
this type of trespass claim
3. This could be a trespass as long as it satisfied the elements and
there were actual damages
a. The intent requirement could be satisfied by general intent
i. There was substantial certainty that these
particulates would travel to the land
viii. Hypo 2-13: Π wants to sue Δ about the aroma travelling to her yard from
Δ’s dog’s poop
1. Probably no claim for nuisance or trespass
2. For nuisance Π needs to demonstrate a substantial and
unreasonable interference with the property
g. Trespass to Chattel and Conversion
i. The difference between trespass to chattel and trespass to land
1. Damages are presumed in trespass to land
2. You must demonstrate damages in trespass to chattel
ii. Restatement (Second) § 218. Liability to Person in Possession

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 1. 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
i. This comes up with respect to animals a lot where
the animal isn’t diminished in value but there is
harm caused to it
iii. Gliddenn v. Szbiak (1949) (91)
1. Minor Π pulled on Δ’s dog’s ears and he bit her on the nose
2. The dog was not injured or damaged in any way in this case
a. It does not fit any of the 4 categories
b. Could not be a trespass to chattel
3. Have to be able to demonstrate actual damages
iv. CompuServe Inc. v. Cyber Promotions (1997) (95)
1. Δ sends unsolicited emails to internet users including the
customers of Π
2. Satisfying the injury/damages requirement
a. The conduct did impair the condition, quality, or value of
Π’s business
3. Introduction to the concept of conversion
a. Difference between conversion and trespass to chattel
i. In conversion, Π can force Δ to buy the chattel if
they have so substantially interfered with it
ii. Just monetary damages in trespass to chattel
iii. It is essentially aggravated trespass to chattel
iv. There is not a clear line between the two
1. It could come down to which remedy you
want
b. Restatement (Second) § 222A
i. Conversion is an intentional exercise of dominion
or control over a chattel which so seriously
interferes with the right of another to control it that
the actor may justly be required to pay the other the
full value of the chattel
ii. In determining the seriousness of the interference
and the justice of requiring the actor to pay the full
value, the following factors are important:
1. The extent and duration of the actor’s
exercise of dominion or control;

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 2. The actor’s intent to assert a right in fact
inconsistent with the other’s right of control;
3. The actor’s good faith;
4. The extent and duration of the resulting
interference with the other’s right of control;
5. The harm done to the chattel;
6. The inconvenience and expense caused to
the other
v. Hypo 2-14: Π’s pet Chihuahua is captured by a trained hawk meant to
capture rodents
1. Comparison to Ranson dog v. wolf case
2. The dog was injured and suffered damages so this could amount to
trespass
vi. Pearson v. Dodd (1969) (105)
1. Δs entered Π’s office, made copies of documents and replaced the
originals, and then gave information away to be published
2. This is not conversion
a. The value of the documents lay in their usefulness to the
business and Π was not deprived of their use
b. There are some documents which would have been more
relevant in a conversion claim:
i. Copyright materials – literary works
ii. Trade secrets
iii. Research data
iv. Sales lists/customer lists
h. Intentional Infliction of Emotional Distress
i. Relatively new tort (past 50-60 years)
ii. State Rubbish Collectors Ass’n v. Siliznoff (1952) (108)
1. Π took over a rubbish account from a member of the Δ
organization. Δ threatened him with bodily harm and damage to
his property to pay for the account but he did not because he was
not part of the organization
2. There has to be severe emotional distress that results from actions
of Π done with the intention of bringing about that result
3. One of the earliest cases recognizing the tort of IIED
a. Assault would not have allowed for relief here:
i. It was a future threat that could not result in
immediate apprehension
ii. Having to come up with a new tort
iii. Slocum v. Food Fair Stores of Florida (1958) (112)
1. Δ’s employee told Π she smelled while she was shopping in the
store
2. A cause of action does not result from every rude thing someone
says
a. There is an objective test: would the reasonable person be
offended by this conduct

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 b. In some jurisdictions it is an objective test unless the
tortfeasor has some knowledge of the peculiarities of a
person
iv. There do not need to be physical manifestations of the emotional distress
in order to recover
1. But they can help as a practical matter in proving the claim
v. There are no nominal damages awarded for IIED
1. In order to satisfy the elements of the claim, you have to have
experienced something that warrants going beyond nominal
damages
vi. Restatement (Second) § 46. Outrageous Conduct Causing Severe
Emotional Distress
1. One who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to
liability for such emotional distress, and if bodily harm to the other
results from it, for such bodily harm
a. Including the reckless element is a bit of an erosion of the
intentional tort standard (step below substantial certainty)
2. Where such conduct is directed at a third person, the actor is
subject to liability if he intentionally or recklessly causes severe
emotional distress:
a. To a member of such person’s immediate family who is
present at the time, whether or not such distress results in
bodily harm, or
b. To any other person who is present at the time, if such
distress results in bodily harm
vii. Wilson v. Monarch Paper Co. (1991) (115)
1. Π was consistently belittled and demoted at his job until he was
eventually placed in charge of housekeeping at the warehouse he
was supposed to manage after having been very high up in the
company
2. Illustration of the type of extreme and outrageous conduct that
qualifies for relief
a. Most practices of the company are fairly commonplace and
could not be considered extreme and outrageous
b. Intentional humiliation and degradation set it apart
viii. Taylor v. Vallelunga (1959) (125)
1. Δs beat Π in front of his Π daughter
2. In order to intend to cause emotional distress to a person you have
to know they are there
a. Proof of Δ’s specific or general intent or reckless state of
mind requires knowledge of the Π’s presence
ix. Hypo 2-15: Repo Man takes car knowing that 4 young children are in it
1. Should be liable to the girls for false imprisonment
2. Should be liable to the girls for IIED
3. Should be liable to parents for IIED

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III. Chapter Three: Defenses to Intentional Torts
a. Several ways Δ can avoid tort liability
i. Δ may attack Π’s prima facie case: challenge the proof to one of the
elements of the cause of action
ii. Privileged to commit the tort: affirmative defense
b. Consent
i. Π cannot recover for an intentional tort if it is established that the Π was
willing for the conduct or result to occur or when Π has manifested
apparent consent
ii. Restatement (Second) § 829A
1. One who effectively consents to conduct of another intended to
invade his interests cannot recover in an action of tort for the
conduct or harm resulting from it
iii. Koffman v. Garnett (2003) (130)
1. Π was 13 year old football player who was tackled by Δ defensive
coach when he was trying to demonstrate a tacking technique
2. Any consent he gave was to be tackled by players of similar age,
size, and experience
a. Consent in this case (and many cases) is an issue of fact for
the jury to decide
iv. Hypo 3-2: Π and Δ playing touch football and they collide after both
going for the ball under the rules of the game
1. Δ should not be allowed to recover
2. Implicit consent to contact that results from playing football
3. A participant in a sporting activity impliedly consents to product
permitted by the rules of the game
v. Mohr v. Williams (1905) (136)
1. Π sought medical care from Δ; she consented to surgery for her
right ear but after being put under anesthesia Δ concluded that left
ear was in worse condition and operated on that one instead
2. Consent is necessary for surgical procedures
3. There have to be extenuating circumstances in order to perform a
medical act that was not consented to
a. Lifesaving emergency
b. Serious injury
4. A person must have the capacity to give consent
a. Intoxication, mental incompetence, minors
vi. DeMay v. Roberts (1881) (142)
1. Δ physician brought someone to the home of Π during her labor
who Π wrongly believed was his assistant (privacy case)
2. Consent obtained by force, fraud, or deceit is illegitimate
a. Restatement (Second) §892B(2)
i. If the person consenting … is induced to consent by
a substantial mistake concerning the nature of the
invasion of his interests or the extent of the harm to
be expected from it and the mistake is known to the

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 other or is induced by the other’s misrepresentation,
the consent is not effective…
vii. Hypo 3-4: Δ deliberately exposes 17 women to HIV
1. Consent to sex obtained under fraud or deceit
viii. Π cannot consent to criminal conduct
c. Self-Defense
i. Poliak v. Adcock (2002) (146)
1. Δ hit Π, daughter’s boyfriend, with a two-by-four when he decided
he didn’t want him to live in the house anymore
2. Self-defense has to be reasonable and proportional to the threat
under
a. Reasonable basis to believe you are being attacked or about
to be attacked
b. Words are not enough to constitute reasonable belief of
threat: must exhibit physical threat
c. Ends when the threat is extinguished: no retaliation
d. Reasonableness is measured objectively: reasonable person
ii. Aggressor doctrine: completely bars Π from recovery if their own actions
were sufficient to provoke a reasonable person to use physical force for
protection
1. Person who was initially aggressor retains right to self-defense
after retreat and communicated intent to abandon the interaction
iii. Stand your ground laws
1. Historically the rule was that if you were being attacked you were
obligated to retreat if the opportunity to do so existed
2. Currently the majority of jurisdictions provide that one is
privileged to stand one’s ground and use deadly force if necessary
and proportional
iv. Hypo 3-6: Π is widow; Δ on his land shooting dogs attacking his sheep
very close to Π’s property; Π’s husband emerges and fires pistol shot; Δ
returns fire and kills Π and injures wife when bullet goes through husband
1. In the real case the prosecutors did not proceed because self-
defense was justified
d. Defense of Others
i. If the person you are defending would have the right to defend themselves,
you are allowed to use the same force they could to defend them
e. Defense of Real Property
i. Restatement (Second) § 77. Defense of Possession by Force Not
Threatening Death or Serious Bodily Harm
1. An actor is privileged to use reasonable force, not intended or
likely to cause death or serious bodily harm, to prevent or
terminate another’s intrusion upon the actor’s land or chattels, if:
a. The intrusion is not privileged or the other intentionally or
negligently causes the actor to believe that it is not
privileged, and

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 b. The actor reasonably believes that the intrusion can be
prevented or terminated only by the force used, and
c. The actor has first requested the other to desist and the
other has disregarded the request, or the actor reasonably
believes that a request will be useless or that substantial
harm will be done before it can be made
ii. Poliak excerpt:
1. To raise the defense of property defense, a property owner must
prove:
a. Π was trespassing on his/her property
b. He/she reasonably believed that the force was necessary to
get the trespasser off or to keep the trespasser off his/her
property
c. He/she first asked the trespasser to leave and they refused
or he/she reasonably believed such an attempt would have
been useless or caused substantial harm
iii. Katko v. Briney (1971) (153)
1. Δ rigged a shotgun trap in home after series of housebreaking; Π
shot in the leg by trap
2. The law favors people’s health and lives more highly than property
so you cannot use deadly force to protect property
3. Cannot use a booby trap to protect your home
4. Can only use deadly force if you or someone there is at risk of
physical harm: proportionality
iv. Hypo 3-7: Δ arrived home to find that home had been broken into; he
heard a noise and took his samurai sword to the garage where Intruder
lunged at him and Δ struck him and killed him with sword
1. Class answer: probably liable for battery and wrongful death
2. I disagree, fact pattern could be read that this was defense of self
and not defense of property
f. Defense and Recovery of Personal Property
i. Hodgeden v. Hubbard (1846) (160)
1. Π bought stove with promissory note; Δs learned he was
untrustworthy and went after him and used force to take back the
stove
2. You can reclaim property wrongfully taken from you peacefully
but if you are wrong then you have yourself committed a tort
3. If you are in pursuit of your property being taken then you can use
reasonable force to take it back
a. Hot pursuit: where the unlawful taking is still occurring
b. Property must be retaken peacefully unless you are in hot
pursuit
ii. Bonkowski v. Arlan’s Department Store (162)
1. Π asked by private policeman to produce sales slips for costume
jewelry someone alleged she stole

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 2. A merchant has the right to detain a person under the reasonable
belief that they have taken something unlawfully
a. Carve out of the general rule for merchants (shopkeeper’s
privilege)
b. Relates to the person’s reasonable proximity to location of
store
iii. A demand for return of chattel must be made prior to employing force
unless it reasonably appears that such a request would be futile or
dangerous
g. Necessity
i. Surocco v. Geary (1853) (166)
1. Δ Alcalade of San Francisco decided to destroy Π’s building to
stop the progression of a major fire in the city
2. No recovery can be had from the damages resulting from a
necessary destruction
3. If there is a substantially imminent threat you have the right and
privilege to destroy property with respect to the public good
a. Preventing a greater harm from occurring
ii. Vincent v. Lake Erie Transp. Co. (1910) (168)
1. Steamship was moored to Π’s dock for unloading while a serious
storm developed; storm knocked ship into dock and damaged it
2. If you have the necessity to put your private interest before
someone else’s you are entitled to do that but you have to pay for
the damage you cause
a. Distinguishing between the way courts consider necessity
as it relates to private versus public interests
iii. Hypo 3-9: Δ destroys Π’s herd of cattle that he reasonably believes has
been exposed to Mad Cow’s Disease
1. Π cannot recover because Π reasonably believed it was necessary
to protect the public
IV. Chapter Four: Negligence
a. Five basic elements to every negligence claim
i. Δ had and owed a duty to Π to use reasonable and due care
ii. Δ failed to meet and therefore committed a breach of the duty
iii. Δ’s negligent conduct injured Π: the but-for cause where the conduct
caused the injury
iv. Δ’s conduct legally caused the injury: proximate cause
v. Π suffered actual damages
b. Restatement (Second) §90. What Actor is Required to Know
i. For the purpose of determining whether the actor should recognize that his
conduct involves a risk, he is required to know:
1. The qualities and habits of human beings and animals and the
qualities, characteristics, and capacities of things and forces in so
far as they are matters of common knowledge at the time and in the
community

14
 2. The common law, legislative enactments, and general customs
insofar as they are likely to affect the conduct of the other or third
persons
c. Lubitz v. Wells (1955) (180)
i. Δ left golf club in his yard that his son played with and hit Π
ii. The golf club was not itself obviously and intrinsically dangerous so he
did not owe someone a duty to prevent it from being used
d. Chicago B. & Q. R. Co. v. Krayenbuhl (1902) (181)
i. Π injured when playing on Δ’s turntable which was common practice for
neighborhood children; turntable was commonly not locked
ii. The world is not and cannot be completely safe because there are tradeoffs
made to enhance the quality of life through technology
1. Weigh the public good and benefits against the machinery’s danger
to life and limb
2. Would locking the turntable have been a cost efficient way to
prevent the danger
e. United States v. Carrol Towing Co. (1947) (183)
i. Πs were owners of a barge that sank after Δ tried to drill it out; Δ argued
that Πs were partially liable because there was no attendant on board the
barge
ii. Whether it was negligent that there was no one on the barge
iii. Judge Learned Hand’s formula for taking precautions:
1. The burden is less than the probability times the gravity of the
injury
2. B<PL
3. Speaks to the ever-present ide of balancing in negligence cases
f. Conway v. O’Brien (1940) (186)
i. Δ driving a car with Π when he was in an accident; Δ was in the other lane
of the road because of a sharp turn which was customary
ii. Judge Learned Hand
iii. The probability of an accident was so low that the burden of not
negligently driving on the wrong side of the road was greater
1. Example of an application of the formula
g. Hypo 4-1: Δ owned a strip mine with a water-filled quarry that people swam in;
he didn’t put a fence up because of cost or post signs; Π broke his neck and is
quadriplegic
i. Apply the Learned Hand formula
ii. Probably negligent because he knew people swam in the pit and the cost
of preventing them from doing so was not great in light of the significant
risk of a serious injury occurring
h. Determining a Standard of Care
i. 4 possible areas that may indicate the necessary standard of care
1. Legislative enactment
2. Administrative regulation
3. Judicial decision: common law rule
4. Reasonable person standard: decided by a judge or jury

15
ii. The Reasonable Prudent Person
1. Restatement (Second) § 285(d)
a. The standard of conduct of a reasonable person may be …
applied to the facts of the case by the trial judge or the jury,
if there is no [legislative] enactment, regulation, or
[judicial] decision
2. Vaughan v. Menlove (1837) (189)
a. Δ possessed stack of hay near Π’s property that he was
warned had a high probability of catching fire; destroyed
Π’s cottages
b. The standard of care for negligence is objective and based
on the personable person
3. Restatement (Second) § 295A. Custom
a. In determining whether conduct is negligent, the customs
of the community, or of others under like circumstances,
are factors to be taken into account, but are not controlling
where a reasonable man would not follow them
4. Restatement (Third) § 13. Liability for Physical Harm – 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
b. An actor’s departure from the custom of the community, or
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
5. There are times where failing to follow custom will not be
negligent
a. A customer not wanting x-rays at the dentist
b. A customer not wanting to pay for the customarily accepted
type of wood in construction
6. Sears Roebuck and Co. v. Midcap (2006) (193)
a. Π sued Δ Sears and Southern States (owner and regulator
of propane cylinders) after a gas explosion and said Sothern
States did not comply with voluntary GAS check program
that constituted the industry standard of care
b. There were no requirements to use this program so it could
not be established that it was the custom of the industry
c. You have to prove that something is an industry standard to
introduce it into evidence
7. Gauman v. Industry City Management (2007) (195)
a. Π injured in freight elevator
b. Π presented evidence that the use of a freight elevator
departed from the generally accepted custom in the elevator
industry
8. Cordas v. Peerless Transportation Co. (1941) (196)

16
 a. Robber jumped into taxi; driver jumped out and the car
mounted the sidewalk and injured Π and her children
b. In an emergency situation you are still held to a reasonable
standard of care but the court will recognize that instinctual
judgment calls could be reasonable under those
circumstances
c. You aren’t required to risk your life to avoid an accident
9. Roberts v. State of Louisiana (1981) (200)
a. Π was bumped into by blind employee of Δ who did not
use his cane or extend his arms in front of himself
b. For a person with a physical disability or illness is held to
the standard of a reasonable person with that type of
disability
10. Breunig v. American Family Insurance Company (1970 (205)
a. Δ driving in the wrong lane while under a delusion she was
Batman and could fly and hit Π
b. The general rule in most jurisdictions is that insanity is not
a defense to negligence
i. Restatement (Second) § 283B
1. Insanity or other mental deficiency does not
relieve the actor from liability for conduct
which does not conform to the standard of a
reasonable man under like circumstances
ii. Public policy reasons: people could fake it,
incentivize people taking care of insane people to
keep them from committing torts
c. There are small exceptions for insanity
i. But you have to not know what you are doing or not
be able to control what you are doing and you
cannot have any forewarning of the delusions
11. Gould v. American Family Insurance Co. (1996) (210)
a. Π was the head nurse at a Health Care Center; Δ was
Alzheimer’s patient who pushed her over
b. If you are employed to take care of a person with a mental
disability you cannot sue them for torts
i. Assumption of the risk
ii. The public policy reasons preventing the mental
insanity defense do not apply here
c. Most jurisdictions do not follow this rule
12. Dwello v. Pearson (1961) (217)
a. Πs on a boat at low spread with 40-50 feet of fishing line
trailing behind them; minor Δ went behind the boat and
pulled the line which caused injuries to Π’s eye
b. Children are held to the same standard as children of
similar age, mental capacity, and experience

17
 c. But, if children are engaged in an adult activity they are
held to a reasonable adult standard
d. Restatement (Second) § 283 A. Children
i. If the actor is a child, the standard or conduct to
which he must conform to avoid being negligent is
that of a reasonable person of like age, intelligence,
and experience under like circumstances
iii. The Reasonable Prudent Professional
1. Heath v. Swift Wings, Inc. (1979) (220)
a. Plane crashed right after takeoff which killed pilot, his wife
and son, and a family friend
b. The standard of care for a professional is objective
i. A person who engages in a business or profession
must exercise the requisite degree of learning, skill,
and ability of that calling with reasonable and
ordinary care
c. Standard should have been what a pilot who is exercising
reasonable care would do
2. Wolski v. Wandel (2008) (223)
a. Π retained Δ for dispute with his sister over property and
this case was settled and Π sued Δ over the settlement
b. You will almost always need expert testimony to establish
the ordinary standard of care for an attorney
c. A judgment call does not satisfy malpractice
3. Hypo 4-3:
a. Case 1: attorney failed to meet SOL
i. Committed malpractice
b. Case 2: attorney submitted a brief relying on a case that
was unknowingly overruled 5 days earlier
i. Most likely committed malpractice but likely will
not be liable because the malpractice did not affect
the outcome of the case
4. Morrison v. MacNamara (1979) (230)
a. Π went to Δ physician for tests; did the first test and
complained of feeling faint so Δ told him to sit but did not
examine him and then did a second test; Π fainted and hit
his head and lost his sense of smell
b. The trial court had applied to locality rule for physicians
i. Prevent rural doctors
c. D.C. should not apply the locality rule
i. The old disparities in the profession that gave rise to
the rule do not exist anymore: national boards and
accreditation
ii. Protects bad doctors
d. There are still jurisdictions that apply the locality rule
5. Helling v. Carey (1974) (235)

18
 a. Π has primary open angle glaucoma which is hard to detect
in absence of pressure test; Δs examined her many times
but for over ten years but did not do pressure test until last
visit
b. The ordinary standard of care would be to not give the test
until over 40 because of rarity of incidents (Learned Hand)
c. If the test is so inexpensive and worthwhile based on the
severity of the injury then it should be given even if that is
not the standard of care
i. Balancing according to Learned Hand
d. Anomalous decision that was overturned by statute
6. Scott v. Bradford (1979) (239)
a. Π had tumors on her uterus and signed a routine consent
form for a hysterectomy; experienced incontinence and had
to get more surgery
b. The doctor has to disclose the options and the risks if they
are material (if they could change the patient’s decision)
i. Material means that there is causation
ii. Person has to suffer the risk that was not disclosed
c. Subjective test for informed consent
i. It doesn’t matter if a reasonable person would have
said yes if you would not have
ii. Right of self-determination
d. The jury decides whether or not a risk is material
7. Ashe v. Radiation Oncology Associates (1999) (245)
a. Π got radiation treatment after a mass was removed from
her lung; got radiation myelitis and is a paraplegic; was not
warned that radiation could result in this injury
b. This case said that the standard should be objective
i. Based on what the doctors would normally tell the
patient, not based on the patient
ii. This case also applied the locality rule
iii. Two completely different tests
iv. The majority approach across jurisdictions is the
objective standard
1. Or every plaintiff will say they would not
have had the procedure
8. Moore v. The Regents of the University of CA (1990) (250)
a. Π had hairy cell leukemia; Δ doctors removed his spleen
and continually drew blood because Π’s blood was very
valuable; Δs never told Π they were using his samples for
research and patent
b. This could not be conversion because Π wouldn’t want
samples back
c. Physician should have disclosed any personal interests in
the case that could have altered his loyalties

19
 9. Hypo 4-4:
a. Surgeon 1: completed 6 month stay at in-patient rehab
program
b. Surgeon 2: infected with HIV
c. Should they have to disclose?
iv. Aggravated Negligence
1. Archibald v. Kemble (2009) (257)
a. Π and Δ playing in no-check hockey league and Π alleges
Δ slew footed him
b. Pleading a recklessness claim/ aggravated negligence
i. Disregard for others
ii. A person is intending to act and there is a
significant likelihood that an injury will occur but
they act anyway
1. With reckless disregard for the
consequences of the act
2. Difference between substantially certain
(intentional) and strong probability
(recklessness)
2. Parret v. UNICCO Serv. Co. (2005) (262)
a. Π was employee of Δ who was electrocuted while replacing
emergency lights and died
b. Tortious conduct is divided between negligence and willful
acts that result in intended harm
c. Within negligence there are different categories:
i. Slight negligence
ii. Ordinary negligence
iii. Gross negligence (example: flaming hay case)
d. Within willful acts there are two categories:
i. Willful and wanton
1. Aggravated negligence: the area between
gross negligence and intention (hockey case)
2. The reasonable person should have known
that there was a high chance of the injury
occurring but they proceed despite the high
risks
ii. Intentional misconduct (intentional torts)
3. Restatement (Second) § 500. Reckless Disregard of Safety Defined
a. The actor’s conduct is in reckless disregard of the safety of
another if he does an act or intentionally fails to do an act
which it is his duty to the other to do, knowing or having
reason to know facts which would lead a reasonable man to
realize, not only that his conduct creates an unreasonable
risk of physical harm to another, but also that such risk is
substantially greater than that which is necessary to make
his conduct negligent.

20
v. Establishing a Standard of Care by Applying a Rule of Law
1. Established by a Judge
a. Restatement (Second) § 285(c)
i. The standard of conduct of a reasonable person may
be established by judicial decision
b. Baltimore & O.R. Co. v. Goodman (1927) (265)
i. Π driving and had no practical view of the train
tracks because of an obstruction; killed by the train
ii. The standard of care is to get out of the car and look
across the track to determine if it is safe
c. Pokora v. Wabash Railway Co. (1934) (267)
i. Π driving his truck across a railway grade; he had
stopped and listened
ii. The standard of care is not to get out and look
because that would be futile and dangerous
iii. Demonstrates the way in which tort law favors
standards over rules
1. Bright line tests fall apart in the nuances of
cases
2. Judges should not be telling the world what
parties can and can’t do: leave to legislature
2. Standard of Care by Statute
a. Restatement (Second) § 285(b)
i. The standard of conduct of a reasonable person may
be adopted by a court from a legislative enactment
or an administrative regulation which does not so
provide
b. Osborne v. McMasters (1889) (271)
i. Clerk in Δ’s store sold Π a deadly poison without it
being labelled as such which was required by statute
ii. Negligence per se
iii. If you violate a standard of care established by a
statute and cause an injury as a result then you will
automatically be considered to have committed
negligence
c. Sanchez v. Wal-Mart Stores, Inc. (2009) (272)
i. Pharmacy customer caused an accident that resulted
in severe injuries while under influence of
prescription drugs
ii. Statutes require pharmacies to review records of
prescription drug dispensation
1. This is designed to protect the individual
2. Not designed to protect the world at large
iii. Negligence per se only applies to the type of injury
to the type of person the statute is meant to protect
d. Stachniewicz v. Mar-Cam Corp. (1971) (276)

21
 i. Bar fight that resulted in serious injuries to Π
ii. Suing bar based on statute that they cannot serve
intoxicated patrons
iii. Problem of causation: would injuries have resulted
without the extra drinks
iv. Two things needed to prove negligence per se:
1. Injured person is within the class of persons
the regulation was designed to protect
2. The injury was the kind of thing the
regulation was designed to prevent
e. Perry v. S.N. and S.N. (1998) (279)
i. Π’s children attended a day care center where
children were abused physically and sexually; suing
people who failed to report the abuse
ii. There was a non-tort statute that required people to
call and report abuse (criminal)
iii. There are additional standards to consider than the
two in the previous case:
1. Imposition of liabilities on people whose
actions were fairly insignificant
2. Direct v. indirect causes
3. Whether statute is clearly worded such that
it would put people on notice
f. In some jurisdictions negligence per se is enough to make a
prima facie satisfaction of the burden of proof
g. In other jurisdictions it is just evidence of negligence
h. Restatement (Second) §288A. Excused Violations
i. An excused violation of a legislative enactment or
an administrative regulation is not negligence
ii. Unless such enactment or regulation is construed
not to permit such excuse, its violation is excused
when:
1. The violation is reasonable because of the
actor’s incapacity;
2. He neither knows nor should know of the
occasion for compliance
3. He is unable after reasonable diligence or
care to comply;
4. Is confronted by an emergency not due to
his own misconduct;
5. Compliance would involve a greater risk of
harm to the actor or to others
i. Zeni v. Anderson (1976) (287)
i. Π walking to work used a well-used pedestrian
snow path instead of snow covered sidewalk with
her back to oncoming traffic; Δ hit her

22
 ii. Compliance with the statute saying you must walk
facing traffic or on the sidewalk would have
involved a greater risk of harm
iii. You aren’t liable every single time you violate a
statute because this would be strict liability
j. Teply v. Lincoln (1994) (294)
i. Δ lost control of pick-up on snowy highway;
crossed center line and hit Πs
ii. Could not be negligence because he had no control
over his actions and his compliance was impossible
iii. Anomalous decision
1. Most jurisdictions will not consider this an
excuse
2. Things vary: an excuse in one state might
not be one in another
k. Sometimes the statute is a tort statute: dram shop act
i. Restatement (Second) §285(a)
1. The standard of conduct of a reasonable
person may be established by a legislative
enactment or administrative regulation
which so provides
i. Proving Negligence
i. Direct and Circumstantial Evidence
1. Circumstantial: jury draws inference
2. Direct: physical, witness
3. Goddard v. Boston & Main R.R. Co. (1901) (298)
a. Π slipped and fell on banana peel on Δ’s platform after
getting off a train
b. There can be no liability because the banana peel could
have just been dropped by one of the passengers leaving the
train
4. Anjour v. Boston Elevated Railway Co. (1911) (298)
a. Π following employee of Δ to train; slipped on dirty and
blackened banana peel
b. Could be inferred that the banana peel had been there long
enough that Δ could have solved the problem
5. Wal-Mart Stores, Inc. v. Rosa (2001) (300)
a. Π slipped on a piece of banana in Wal-Mart
b. Four things Π must prove:
i. Actual/constructive knowledge of Δ of some
condition on the premises
ii. Condition posed unreasonable risk of harm
iii. Owner/operator did not exercise reasonable care to
reduce or eliminate the risk
iv. Owner/operator’s failure to use such care
proximately caused the Π’s injuries

23
 c. Must be more likely than not that Δ was negligent to
recover
6. Wallace v. Wal-Mart Stores (2005) (304)
a. Π slipped on a grape in the store
b. Demonstration of lack of actual/constructive knowledge
ii. Res Ipsa Loquitur
1. The thing speaks for itself
2. Byrne v. Boadle (1863) (308)
a. Π walking on street outside Δ’s shop when barrel rolled out
the window and hit him
b. There is presumed negligence because of the circumstances
of the accident
c. Presumed negligence does not automatically establish
liability
i. If there are facts inconsistent with negligence the
burden of proof switches to Δ to prove them
ii. In the situation of presumed negligence Δ has the
burden of proof to prove he was not negligent
3. Restatement (Second) § 328D. Res Ipsa Loquitur
a. It may be inferred that harm suffered by the plaintiff is
caused by negligence of the defendant when:
i. The event is of a kind which ordinarily does not
occur in the absence of negligence
ii. Other responsible causes, including the conduct of
the plaintiff and third person, are sufficiently
eliminated by the evidence; and
iii. The indicated negligence is within the scope of the
defendant’s duty to the plaintiff
b. It is the function of the court to determine whether the
inference may reasonably be drawn by the jury, or whether
it must necessarily be drawn
c. It is the function of the jury to determine whether an
inference is to be drawn in a case where different
conclusions may reasonably be reached
4. Restatement (Third) §17. Res Ipsa Loquitur
a. 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
5. Safeco Insur. Co. v. Mobile Power and Light Co., Inc. (2001) (311)
a. Πs suffered two fires in home; after the first they had Δ
repair their electrical system but Δ did not repair after the
second; there was a third fire that an investigator attributed
to defects

24
 b. Δ must have exclusive management and control over the
instrument that caused the harm
i. Intervening causes
ii. A lot of jurisdictions focus instead on whether or
not the accident would have occurred in the absence
of the negligence that Δ was responsible for
6. Ybarra v. Spangard (1944) (314)
a. Π got surgery for appendicitis from a variety of different
medical people; woke up with pain and an atrophy of
muscles around the shoulder caused by some kind of
trauma
b. Satisfied the conditions from Safeco re: exclusive
management and control
V. Chapter Five: Causation
a. Causation in Fact
i. Sine Qua Non (Without which not)
1. Perkins v. Texas and New Orleans Ry. Co. (1962) (321)
a. Car with Π as passenger collided with a train that was
moving at 37 mph despite 25 mph speed limit; there was an
obstruction for both; train saw car at last second and tried
to brake
b. Negligence is a cause in fact of the harm to another if it
was a substantial factor in bringing about the harm
i. It was more likely than not that the actor’s
negligence caused the harm
c. Speed of train was not a cause in fact if the accident would
have occurred regardless of the speed
2. Restatement (Second) §431. What Constitutes Legal Cause
a. The actor’s negligent conduct is a legal cause of harm to
another if (a) his conduct is a substantial factor in bringing
about the harm
i. The word substantial is used to denote the fact that
the defendant’s conduct has such an effect in
producing the harm as to lead reasonable men to
regard it as a cause, using that word in the popular
sense, in which there always lurks the idea of
responsibility, rather than in the so-called
“philosophic sense,” which includes every one of
the great number of events without any happening
would not have occurred
3. Restatement (Third) § 26. Factual Cause
a. 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
4. Riley v. Salley (2004) (325)

25
 a. Π and Δ had a car accident after Δ ran a stop sign; She
admitted liability
b. Eggshell skull rule: in tort, a Δ takes Π as they are and is
responsible for the full extent of her injuries caused by the
negligence, even if they are injuries that would not have
been suffered by others
ii. Proof of Causation in Fact
1. Reynolds v. Texas & Pacific Ry. Co. (1885) (328)
a. Π passengers at Δ’s railroad; had to go down dangerous
steps without a railing next to a ditch to get to the train and
Π slipped
b. Δ is still liable even if the accident would also have
occurred in daylight because their negligence greatly
multiplied the chance of accident to Π
c. The fact that the accident might have occurred anyway
does not mean that the negligent act did not cause the
injury
2. Hypo 5-2: man gets drunk with friends; gets lost on his way home
and wanders onto a walkway on the Mississippi River with no light
or barriers and he falls and drowns
a. The lack of lighting, the bar’s failure to stop serving him
when he was inebriated, his friend’s failure to ensure he
made it home safe, and his excessive drinking are all cause-
in-facts
b. But causation is only one element: would also need duties
3. Kramer Service, Inc. v. Williams (1939) (331)
a. Π had a business meeting at Δ hotel with a guest whose
room had a broken transom; transom fell on Π and he got a
wound that never healed and later got cancer in that spot
b. Guest had reported it to the hotel so there was a duty
c. It needed to be more likely than not that the negligence
caused the skin cancer
4. Herskovits v. Group Health Cooperative of Puget Sound (1983)
(334)
a. Δ negligently failed to diagnose Π’s cancer on first visit to
hospital and reduced his chances of survival by 14%; Π
always had less than 50% chance
b. Loss of chance doctrine: if you suffer a meaningful loss of
chance of survival you may have a cause of action
c. Really can’t satisfy the but-for test because you can’t prove
that but-for the negligence he would have survived
d. If you don’t allow a cause of action for people whose
chances are under 50% then doctors have blanket immunity
5. Smith v. Parrott (2003) (338)

26
 a. Π went to see Δ over sudden loss of control of his foot; Δ
referred Π to neurosurgeon for foot drop; neurosurgeon
concluded 11 days later that it was complete/permanent
b. Rejected the loss of chance doctrine
i. Because it was fundamentally at odds with the
common law but-for standard
iii. Problems in Proving Causation-In-Fact
1. Restatement (Second) §432. Negligent Conduct as Necessary
Antecedent of Harm
a. Except as stated in Subsection 2, the actor’s negligent
conduct is not a substantial factor in bringing about harm to
another if the harm would have been sustained even if the
actor had not been negligent
b. If two forces are actively operating, one because of the
actor’s negligence, the other not because of any misconduct
on his part, and each of itself is sufficient to bring about the
harm to another, the actor’s negligence may be found to be
a substantial factor in bringing it about
2. Restatement (Third) §27. Multiple Sufficient Causes
a. If multiple acts occur, each of which 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
3. The but-for test is different than the substantial factor test
4. Anderson v. Minneapolis, St. P. & S. St. M. R. Ry Co. (1920)
(343)
a. Fire of disputed origin spread until it reached Π’s land
b. Two combined fires
c. Ultimately what becomes part b of Restatement (Second)
i. Carve-out of the but-for test
d. There can still be liability even if there are multiple causes
5. Trevino v. Hirsch (1971) (345)
a. Π sued Δ of neighboring farm after kid stole their gas to
light a fire and burned Π’s daughter
b. Δ’s conduct of leaving the gas unlocked was a factor, but
not a substantial factor
i. Other factors were much more predominant
c. There are always many factors in play so it is almost
always up to debate which ones are the predominant causes
6. Restatement (Second) §433 B. Burden of Proof
a. Except as stated in Subjection (2) and (3), the burden of
proof that the tortious conduct of the defendant has caused
the harm to the plaintiff is upon the plaintiff
b. Where the tortious conduct of two or more actors has
combined to bring about harm to the plaintiff, and one or
more of the actors seeks to limit his liability on the ground

27
 that the harm is capable of apportionment among them, the
burden of proof as to the apportionment is upon each such
actor
c. Where the conduct of two or more actors is tortious, and it
is proved that harm has been caused to the plaintiff by only
of them, but there is uncertainty as to which one has caused
it, the burden is upon each such actor to prove that he has
not caused the harm
7. Restatement (Third) §28. Burden of Proof
a. Subject to Subsection (b), the plaintiff has the burden to
prove that the defendant’s tortious conduct was a factual
cause of the plaintiff’s physical harm
b. When the plaintiff sues all of multiple actors and proves of
each engaged in tortious conduct that exposed the plaintiff
to a risk of physical harm and that the tortious conduct of
one or more of them caused the plaintiff’s harm but the
plaintiff cannot reasonably be expected to prove which
actor caused the harm, the burden of proof, including both
production and persuasion, on factual causation is shifted to
the defendants
8. Summers v. Tice (1948) (348)
a. Π and two Δs hunting quail on open range; Π went up a hill
and Δs shot at quail in his direction; was hit in eye and
upper lip
b. If you have two parties acting negligently and someone
gets hurt the court shifts the burden onto the defendants to
prove that they were not the one that caused the injury
9. Hellums v. Raber (2006) (351)
a. 3 Δs and Π were hunting at same property; 2 of the Δs
fired at a deer and hit Π
b. In this case it is clear that the Δ is not the one that actually
hit the Π
c. If you have negligently encouraged someone else to
commit a tort you are still liable
d. Outward reach of tortious liability
10. Sindell v. Abbot Laboratories (1980) (353)
a. Π’s mother took DES when pregnant with her; Π sued Δ
and other manufacturers of the drug and claimed they were
all responsible regardless of which specific company the
mother took
b. You can’t use Summers shifting here because there are 200
companies
c. You can’t use Hellums encouraging here because they are
competitors
d. Enterprise/industry liability failure does not apply here

28
 i. Requires that all the companies in an industry are
all following the same standards which means they
can all be sued
ii. They were all following the FDA standard
e. Market share liability
i. Liable for your own percentage share of the market
1. If you sold 80% of the drugs, you have 80%
liability
ii. Have to have a substantial percentage of the market
to be sued (75-80%)
iii. Still have to prove that it is more likely than not
iv. Adopted by some states
1. Others use Summers
2. Some use Π must prove Δ caused harm
b. Legal or Proximate Causation
i. A legal attempt to limit the possible causes because of the complication of
a chain of events
ii. Restatement (Second) §431. What Constitutes Legal Cause
1. The actor’s negligent conduct is a legal cause of harm to another if:
a. His conduct is a substantial factor in bring about the harm,
and
b. There is no rule of law relieving the actor from liability
because of the manner in which his negligence has resulted
in the harm
iii. Restatement (Third) §29. Limitations on Liability for Tortious Conduct
1. An actor’s liability is limited to those harms that result from the
risk that made the actor’s conduct tortious
iv. Unforeseeable consequences
1. Ryan v. New York Central R.R. Co. (1866) (371)
a. Δ negligently set fire to a woodshed which spread to Π’s
house 130 feet away
b. For damages to be recoverable they cannot be too remote
2. Atchison, T. & S.F.R. Co. v. Stanford (1874) (374)
a. Sparks from Δ’s train landed on different land and the fires
spread and reached Π’s land 4 miles away
b. If the damage that ultimately results is reasonably
foreseeable you will be liable for it unless there is some
superseding and intervening break in causation
c. Opposite holding from Ryan
3. In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.
(1921) (377)
a. Π owners of ship sought recovery from Δ charterers of a
ship after the ship was destroyed in a fire when Δs
workmen were unloading it; there had been leakage in the
hold of petrol; a board slipped and fell and resulted in the
fire

29
 b. Threw out the idea of reasonable foreseeability here
c. If the damages result from your negligence, it does not
matter how foreseeable the result was
4. Palsgraf v. Long Island R.R. Co. (1928) (383)
a. Π was on platform of Δ; two man ran to catch a train;
second was carrying a package; guard reached out to help
him and knocked package covered in newspaper down; it
was fireworks that exploded and resulted in scales falling
on Π
b. There wasn’t even a duty owed to Π
i. Π has to be someone you could reasonably foresee
being injured by your actions
c. Dissent (Andrews): there is a general duty to protect
everyone from harm
i. Because everything is so interconnected the line of
recovery must be drawn somewhere
1. Political, arbitrary decision
5. Overseas Tankship v. Morts Dock & Engineering Co. Ltd. (Wagon
Mound No. 1) (1961) (394)
a. Δs spilled oil into the bay and did not remove it; Πs
conducted an inquiry into whether it was safe to continue
work on a ship at the bay and it was said to be safe; they
continued working but this led to a fire
b. Foreseeability is the effective test
i. Throw out Polemis
ii. Whether the injury is the foreseeable result of
negligence
6. Overseas Tankship Ltd. V. Miller Steamship Co. (Wagon Mound
No. 2) (1967) (400)
a. Same facts as prior case; different Π
b. It was foreseeable that there could be a flame on the water
i. The engineer should have taken care because he
should have known there was a potential harm
c. Risk/utility analysis
i. Can you foresee a possibility of a bad thing
happening and how much effort should you take to
prevent a bad thing from happening
7. The basic test for proximate causation is reasonable foreseeability
8. For your conduct to be tortious, it has to be reasonably foreseeable
that you are creating a risk
9. In re Kinsman Transit Co. (1964) (406)
a. Πs were the owners of flooded and otherwise damaged
property; Δ owned ship that broke out of its moorings
because of weather and lack of anchors and drifted;
collided with another ship; both drifted down river and
eventually collided with Δ City of Buffalo’s lift bridge

30
 which wasn’t lifted in time, collapsed, built a dam of sorts,
and resulted in the flooded property
b. Last clear chance rule
i. Even if another negligent party put a chain of events
in motion, you are still liable if you had the last
chance to prevent the damages and did not
c. If it is foreseeable that your actions or lack thereof will
cause damage, the fact that you can’t foresee how great the
damages will be does not relieve you of liability
10. Hypo 5-3: James drives a bus across train tracks and does not look;
Chris puts down the gates and traps the bus; the passengers
stampede to the exits and trample Darla
a. All three should be liable because they all caused the
accident in some way
b. The jury may find that it was reasonable for the passengers
to react in the way they did during the emergency situation
11. Hypo 5-4: Jennifer negligently drives car and collides with
negligently driving Dan; Jane then runs a red light and hits them
both; Jennifer’s passenger dies
a. All three drivers are liable
b. If the first collision had not occurred they would not have
been in the place for the second to occur
12. Wilke v. Woodhouse Ford, Inc. (2009) (419)
a. Πs bought van from Δs; their daughter pulled gearshift
while key was out of ignition out of park and van rolled
over mom’s foot
b. Selling a car without inspecting it for a problem can be
negligent if it is reasonably foreseeable that an injury could
result
13. Foreseeability for determining duty and foreseeability for
determining causation are very closely related
v. Intervening Causes
1. The difference between superseding causes and intervening causes
a. An intervening cause is one that comes between the initial
event in a sequence and the end result
b. A superseding cause is on that the law considers sufficient
to override the cause for which the original tortfeasor was
responsible, thereby exonerating that tortfeasor from
liability
2. Derdiarian v. Felix Contracting Corp. (1980) (423)
a. Δ failed to take epileptic medicine before driving, had a
seizure and crashed through a single barrier at a
construction site; he hit Π who was then hit with 400
degree enamel
b. When an intervening cause becomes a superseding cause:
i. Extraordinary intervening act

31
 ii. Not foreseeable in the course of events
iii. Independent or far removed from Δ’s conduct
c. If the injury is caused by something that is the exact type of
risk you were supposed to prevent, it cannot be seen as a
superseding or intervening cause by definition
3. Watson v. Kentucky & Indiana Bridge R.R. Co. (1910) (426)
a. Tank car filled with gasoline derailed while going over the
roadbed of Δ and gasoline was leaked into the street; Π’s
house was destroyed after a man threw a match on the
street with unclear intentions
b. If was foreseeable that someone could accidentally start a
fire but not that someone’s malcontent would state the fire
i. It cannot be foreseeable that someone will engage in
a criminal act
ii. A criminal act is a superseding cause
4. Restatement (Second) §440. Superseding Cause Defined
a. A superseding cause is an act of a third person or other
force which by its intervention prevents the actor from
being liable for harm to another which his antecedent
negligence is a substantial factor in bringing about
5. Restatement (Second) § 441. Intervening Force Defined
a. An intervening force is one which actively operates in
producing harm to another after the actor’s negligent act or
omission has been committed
b. Whether the active operation of an intervening force
prevents the actor’s antecedent negligence from being a
legal cause in bringing about harm to another is determined
by the rules stated in §§ 442-53.
i. Extraordinary, extreme, independent, in
commission of crime, natural consequence of chain
of events
6. Restatement (Third) §34. Intervening Acts and Superseding Causes
a. 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
b. This reduces liability back down to what is reasonably
foreseeable
7. Hypo 5-5: Π sued her hotel because a man was easily able to break
into her room and assault her in a bad neighborhood
a. Illustration of an exception to criminal acts as superseding
causes
b. It was the exact kind of harm that they should have been
protecting against
8. The two most common superseding causes that courts will
recognize are crimes and suicides

32
 9. Fuller v. Preis (1974) (430)
a. Π was in car accident but thought he had no injuries; for the
next few months he had a lot of seizures and lost his ability
to work; he killed himself
b. The suicide was a superseding cause of death
c. Suicide may not always be a superseding cause
i. If it was foreseeable that the actions could result in
the mental illness that resulted in the suicide
10. La Quinta Inns, Inc. v. Leech (2008) (434)
a. Π staying at Δ hotel; requested room for friend on 7th floor;
began to talk strangely on phone with son about killing
himself; Δ delayed in giving the information about his
room; just as son got to the door he jumped or fell
b. The case was really decided based on a lack of duty
i. Don’t have a duty to prevent someone from killing
themselves
11. Hypo 5-6: police officer father went to get milk for daughter who
had attempted suicide 6 months earlier and left gun on table
a. Most jurisdictions would not find liability here
vi. Public Policy
1. Kelly v. Gwinnell (1984) (438)
a. Δ was at other Δ’s house drinking; after he left he was in a
car accident
b. Negligence elements are present here
i. Duty: it was reasonably foreseeable that giving
alcohol to a person who is intoxicated will lead to
them not being able to operate a car
ii. Breach: friend had to have known he was drunk
iii. Causation: the man getting drunk is not a
superseding cause because it caused the exact kind
of harm he should have been preventing
c. Most jurisdictions will not impose liability here
i. An adult choosing to get drunk is a superseding
cause
ii. This court was overruled by statute
1. Under a public policy reasoning there should
be liability but then public policy enters
afterward to change the decision
d. Public policy reason: prevent drunk driving
2. Enright v. Eli Lilly & Co. (1991) (448)
a. Π’s maternal grandmother ingested DES and had Π’s
mother who had a lot of issues with her reproductive
system that led to Π being born with cerebral palsy and
other disabilities
b. Public policy concern: don’t want to deter the development
of drugs

33
 c. Liability does not extend to preconception torts
3. Grover v. Eli Lilly & Co. (1992) (453)
a. Π’s mother was exposed to DES as a fetus and Π had
premature birth and resulting injuries
b. Public policy concern to draw the line of recovery
somewhere
c. Remoteness in time and causation
VI. Chapter Six: Defenses (and Partial Defenses) to Negligence Actions
a. Contributory Negligence
i. Restatement (Second) §463. Contributory Negligence Defined
1. Contributory negligence is conduct on the part of the plaintiff
which falls below the standard to which he should conform for his
own protection, and which is a legally contributing cause co-
operating with the negligence of the defendant in bringing about
the plaintiff’s harm
ii. Butterfield v. Forrester (1809) (459)
1. Δ doing repairs on his home put a pole up across the road; Π riding
his horse really fast; obstruction easily seen but Π could not stop in
time
2. First real contributory negligence case
3. Π did not exercise ordinary care
iii. Davies v. Mann (1842) (461)
1. Π tied his donkey near a public highway and it was grazing off the
side of the road when Δ’s wagon hit it and killed it
2. It was negligent to have the donkey in the road
iv. Δ has burden of proving Π’s negligence
v. Burleson v. RSR Group Florida, Inc. (2007) (463)
1. Π was hanging a gun on a gun rack when he dropped it and it
discharged; he was shot and killed
2. Π’s contributory negligence in putting the gun away loaded bars
his recovery
vi. Only exists in 4 states:
1. Alabama, Maryland, North Carolina, Virginia
b. Comparative Fault
i. Looks at the totality of the circumstances to determine the percentages of
liability and award damages accordingly
1. Versus contributory negligence which is a complete bar to
recovery
ii. McIntyre v. Balentine (1992) (469
1. Π and Δ were in a car accident; both men had been drinking and Δ
was speeding
2. There are three types of comparative fault
a. Pure: Π recovers for what he is not liable in causing
b. Modified 1: Π only recovers if he is less than 50%
negligent
i. If equally at fault or less you can recover

34
 c. Modified 2: Π only recovers if he is 49% or less negligent
i. Have to be less negligent than Δ
iii. Hypo 6-1: Π sues three Δs and jury determines each of the four is 25% at
fault
1. Π can recover the 75%
iv. Hockema v. J.S. (2005) (480)
1. Δ driving when minor Π ran in front of her car and was seriously
injured
2. Π was more than 50% at fault so neither he nor his parents could
recover
a. Can’t recover derivative claims if the original claim is
barred
c. Assumption of the Risk
i. Two key factors in all assumption of the risk
1. Known risk
2. Nonetheless voluntarily engage in the conduct
ii. Express Assumption of the Risk
1. Agreed up front that you are aware of the risk and won’t hold the
other party liable
a. Release
2. McCune v. Myrtle Beach Indoor Shooting Range, Inc. (2005) (487)
a. Π playing paintball at Δ’s; signed a general waiver re:
releasing them from liability except for gross negligence;
her mask was loose fitting and it got pulled away from her
face; shot in the eye and rendered it legally blind
b. Releases from liability are disfavored by courts
i. Encourage poor behavior
ii. Will not enforce a release that is ambiguous
iii. Will not enforce a release that is overly broad
iv. Three types of behavior they will not enforce
1. Gross negligence
2. Intentional misconduct
3. Recklessness
3. Hypo 6-2: Π joined a Fitness Club and signed a Participation
Agreement that released them from all liability
a. Could still be held liable because the release was overbroad
or ambiguous
iii. Implied Assumption of the Risk
1. Knowingly accepting the risks and voluntarily moving forward
despite the risks
a. Inferred through conduct
2. Wirtz v. Gillogly (2009) (494)
a. Δ asked Π to help him fell trees; Π had no prior experience,
did not wear hard hat; a few days into the project one of the
trees split and fell on Π
b. Two part test:

35
 i. Knew the risk he was assuming
ii. Voluntarily did the act
3. Turner v. Mandalay Sports Entertainment, LLC (2008) (498)
a. Πs were season ticket holders for baseball games; tickets
had warnings, there were signs posted, announcers
announced things; wife hit in face with foul ball
b. Have to prove they knew the risk
4. Knowledge test is subjective
a. Have to prove what the person who got injured actually
knew
5. Hypo 6-3: golfer hit a ball that hit another golfer in the eye and did
not yell a warning; golf course had no signs or nets
a. Π should recover nothing because she implicitly assumed
the risk of being hit by golf balls
d. Statutes of Limitations
i. Genrich v. OHIC Insurance Company (2009) (503)
1. Π had surgery to repair an ulcer on July 24, 2003; became sick and
had a second surgery to remove a sponge on August 8, 2003; he
then died; suit filed August 9, 2006
2. The triggering event for the statute of limitations was the first
surgery
a. When the injury occurred
e. Statutes of Repose
i. Orlak v. Loyola University Health System (2007) (507)
1. Π suffered burns; while unconscious he mother gave consent for
blood transfusion; in 1990 the hospital told her to get tested for
HIV, she was negative; in 2000 she was notified that she should be
tested for HCV for which she was positive
2. Statute of repose cut off time to file at 4 years
a. Cuts off claims before you may even discover you have
them
VII. Chapter Seven: Advanced Topics in Negligence Actions
a. Failure to Act
i. Hegel v. Langsam (1971) (531)
1. Π’s daughter went to college and became a drug user and didn’t
return to her parent’s custody
2. General rule: there is no common law duty to regulate or control
other people’s behavior
a. There are a few exceptions explored in the other cases
ii. J.S. and M.S. v. R.T.H. (1998) (532)
1. Minor Πs spent time at neighbor’s horse barn; he abused them for
a year; went to prison; parents sued the wife
2. There are factors to balance in imposing a duty
a. Foreseeability
b. Risk-utility analysis
c. Public policy considerations

36
 i. Protecting children from abuse
ii. Marital privacy
3. If the spouse had particular knowledge or special reason to know
the likelihood that a particular group of people could be injured by
a particular kind of injury then liability can be imposed
iii. Hypo 7-2: Π’s son was playing Russian Roulette with his friends while his
father was downstairs
1. A friendship is probably not a special enough relationship to create
a legal duty to act
iv. Tarasoff v. Regents of University of California (1976) (541)
1. Π killed by a patient of Δ therapist; he told therapist his intention
to kill her and he asked the police to look into it; he was briefly
detained but released; therapist’s boss told him to take no further
action; no one warned Π
2. Whether a therapist exercising ordinary care would be able to
predict that this person will commit an act of violence and
therefore there should be a duty to act
a. There is a special relationship here
i. The special relationship has to either be with the
victim or the person who commits the crime
3. Four years later the California Supreme Court concluded that the
affirmative duty to warn depends on and arises from the existence
of a prior threat to a specific identifiable victim and does not apply
to threats made to a large amorphous public group
v. Thapar v. Zezulka (1999) (551)
1. Patient had history of mental health problems; he told therapist he
felt like killing Π; killed him a month later; therapist never warned
family members or law enforcement
2. A statute forbid therapists from revealing patient confidentiality
a. Catch 22 for physician
b. Legislature could have enacted a statute that allowed
revealing information in these types of cases
3. Most jurisdictions follow the prior model and not this one
vi. Hypo 7-3: attorney told client he would represent her in a case against the
prosecutor and public defender; she threatened to kill them; he called the
district attorney and the judge and warned them
1. There is a duty to warn based on two special relationships
a. Attorney-client privilege
b. Judge is a member of the bar and the lawyer is an officer of
the court
b. Pure Economic Loss
i. Aikens v. Debow (2000) (557)
1. Π owns and operates an Econo-Lodge; Δ truck driver caused an
accident that resulted in damage to the bridge that was the easiest
route to the Lodge

37
 2. You can’t recover a purely economic loss in the absence of special
circumstances
a. If tortfeasor had a duty to the particular plaintiffs and was
able to foresee the injury and had a special relationship to
them
c. Negligent Infliction of Emotional Distress
i. Daley v. LaCroix (1970) (570)
1. Δ driving near Π’s farm; hit a utility pole that caused voltage lines
leading into Π’s house to snap; Πs claimed emotional disturbance
as a result
2. Prior rule had been you could not recover for emotional distress
without also having a physical injury
3. As long as you can show your emotional trauma is the result of the
negligence you can recover
a. But there also has to be a physical manifestation of your
emotional trauma
b. Emotional trauma has to be objectively reasonable
i. Eggshell skull rule does not apply to NIED claims
ii. Hedgepeth v. Whitman Walker Clinic (2009) (577)
1. Π misdiagnosed with HIV; believed he was HIV positive for 5
years and was depressed, lost his job, took drugs, etc.
2. Zone of physical danger test
iii. Two alternative ways to prove NIED:
1. Actually injured and emotional distress results
2. If you are not physically hurt then you must be in the zone of
physical danger and emotional distress results
3. Always have to show a physical manifestation of emotional
distress
iv. Hypo 7-4: Δ called wrong number and informed Π falsely that she was
HIV positive
1. Can’t recover
2. The person you are suing has to be the person that created the zone
of danger
v. Hypo 7-5: Δ misdiagnosed child with chlamydia and reported parents to
authorities
1. Parents cannot recover
2. Not in a zone of physical danger
vi. Thing v. La Chusa (1989) (581)
1. Π’s son hit by a car; she was nearby but did not see or hear the
accident; arrived at the scene when he was laying in the road
2. The bystander rule:
a. Have to be closely related to the victim
b. Have to be present at the scene and be aware that it is
causing injury
c. Have to suffer severe emotional distress according to what
a reasonable person would experience

38
 3. But don’t have to be within the zone of physical danger
vii. Hypo 7-6: son walks ahead of mother and gets hit by car; mother heard the
tires and a thump
1. Should be able to recover according to the three prongs of Thing
viii. Jaynes v. Strong-Thorne Mortuary, Inc. (1997) (588)
1. Πs hired Δs to bury father in family plot; in the process they
disturbed the grave of the mother
2. They were not bystanders
3. There are special circumstances where you do not have to satisfy
the zone of physical danger test or the bystander test
a. Contractual obligation: messing up a grave
b. This is not met in this particular case because they didn’t
plead severe emotion distress
ix. Restatement (Third) § 47. Negligent Conduct Directly Inflicting
Emotional Harm on Another
1. 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 specific categories of activities,
undertakings, or relationships in which negligent conduct is
especially likely to cause serious emotional harm
x. Restatement (Third) §48. Negligent Infliction of Emotional Harm
Resulting from Bodily Harm to a Third Person
1. 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
d. Owners and Occupiers of Land
i. Trespassers
1. Sheehan v. St. Paul & Duluth Ry. Co. (1896) (616)
a. Π walking on Δ’s railroad track when his foot got caught
and train ran it over
b. The duty of care owed to trespassers is not to do wanton
and willful misconduct
c. Upon the discovery of a trespasser, Δ owes trespasser duty
of ordinary care
d. Even when you do not see a trespasser, if you know people
often trespass on your property you have a duty to warn
them of man-made hazards
ii. Licensees
1. Social guests
2. Barmore v. Elmore (1980) (618)

39
 a. Π went to Δ’s home to discuss lodge business and son
stabbed Π several times
b. Three part test to determine if someone is an invitee
i. Invited expressly or implicitly
ii. There to conduct some business or business related
activity
iii. There is a mutuality of benefit to the owner
c. The duty of care to an invitee is to exercise reasonable care
d. The duty of care to a licensee is to warn of hidden dangers
and refrain from injuring willfully or wantonly
3. Evans v. Hodge (2008) (621)
a. Π went to Δ’s home with mail for Δ’s sister who was
staying with her; slipped on a doormat with ice on it
b. If you are an invitee on someone else’s property and you
invite someone else to the property that person is also an
invitee
i. If a guest is paying you to stay at your home they
could be an invitee
iii. Invitees
1. Campbell v. Weathers (1941) (624)
a. Δs leased a building and operated a cigar and lunch
business; Π was regular customer who entered, spent 15-20
minutes in the front of the store, and then went to the
bathroom; fell through a trap door
b. If you are a prospective customer in a store you are an
invitee
2. Foss v. Kincade (2009) (628)
a. Π’s mother took him to Δ’s house who had recently moved;
son was in a different room and a bookcase fell on him
b. Collapsed the standard of care for invitees and licensees
c. It was not foreseeable that a bookshelf would fall on him so
there was no duty of care
iv. Children and Attractive Nuisances
1. Attractive nuisance:
a. Manmade attraction on your property that children will find
irresistible
b. You have a duty to take steps to protect these children even
if they are trespassers
c. Pools and trampolines
2. Restatement (Second) § 339. Artificial Conditions Highlight
Dangerous to Trespassing Children
a. A possessor of land is subject to liability for physical harm
to children trespassing thereupon caused by an artificial
condition upon the land if:

40
 i. The place where the condition exists is one upon
which the possessor knows or has reason to know
that children are likely to trespass, and
ii. The condition is one of which the possessor knows
or has reason to know and which he realizes or
should realize will involve an unreasonable risk of
death or serious bodily harm to such children, and
iii. The children because of their youth do not discover
the condition or realize the risk involved in
intermeddling with it or in coming within the area
made dangerous by it, and
iv. The utility to the possessor of maintaining the
condition and the burden of eliminating the danger
are slight as compared with the risk to children
involved, and
1. Risk utility analysis
v. The possessor fails to exercise reasonable care to
limit the danger or otherwise protect the children
3. Pinegar v. Harris (2009) (633)
a. Π’s daughter was at father’s friend’s house; he had a turtle
tank on top of a TV; daughter could not reach it standing or
on the chair; father looked away for 10 seconds and it fell
on her face
b. Unless something is inherently dangerous it will not quality
as an attractive nuisance
v. Public Employees or Officials
1. Rivas v. Oxon Hill Joint Venture (2000) (637)
a. Π was a deputy sheriff at Δ apartments to serve a witness;
he slipped on a patch of ice
b. Fireman’s Rule: A firefighter, police officer, or other
emergency professional may not hold a person, usually a
property owner, liable for unintentional injuries suffered by
the professional in responding to the situation caused by the
person
c. Landowners have a duty of care to keep common areas
reasonably safe
vi. Merging or Rejecting the Categories
1. Koenig v. Koenig (2009) (641)
a. Π visited her ill son to care for him and help him with
chores; she fell on a carpet cleaner hose in a hallway with a
broken light
b. Merged the standard of care for an invitee and licensee
i. Everyone should be judged according to reasonable
foreseeability
ii. The old distinctions were created under feudalism
when property rights were viewed differently

41
 iii. Now value safety over property rights
iv. This is the growing trend in the law
1. A few jurisdictions have even expanded the
reasonable standard of care to include
trespassers
vii. Lessors and Lessees
1. Kline v. 1500 Massachusetts Ave. Apartment Corp. (1970) (648)
a. Π assaulted and robbed in common hallway of her
apartment complex; there used to be a lot more security and
she had previously urged landlord to make it safer
b. The landlord is in control of common areas so they are the
ones able to take protective measures
c. Duty to protect against robberies and assault of this nature
because of control over the areas
i. Crimes not superseding because it is the type of
harm that should be protected against
2. Batra v. Clark (2003) (653)
a. Π went to house leased by Δ to play with daughter; there
was a pit bull at the house that had to be chained; lease
agreement said they had to have consent to have a pet and
that the landlord could remove the pet
b. Landlord did have knowledge of dog and the ability to
remove it but not actual knowledge of the dog’s dangerous
propensities
VIII. Chapter Eight: Strict Liability
a. Can still be liable even if you’ve taken reasonable care or even beyond reasonable
care
b. Two big areas:
i. Animals: especially wild animals
1. Basic standard for dogs
a. Negligence standard unless you know or should know that
they have dangerous propensities
b. Most states have adopted statutes that include some
element of strict liability
ii. Activities: abnormally dangerous
c. Assumption of the risk can be a defense
d. Animals
i. Irvine v. Rare Feline Breeding Center (1997) (659)
1. Δ owned exotic animals; Π’s friend rented a room from her and
often visited Π there; one time he tried to pet one of the tigers and
the tiger pulled his arm through the enclosure
2. If you are an owner of a wild animal then you are strictly liable for
the injuries it causes
3. Assumption of the risk could be a defense if the person knows that
the animal is wild and therefore dangerous

42
 a. Knowingly and unreasonably subjecting oneself to the risk
that a wild animal will do harm to your person
b. It will almost be presumed that approaching a wild animal
is unreasonable if it is not a necessity
ii. Hypo 8-1: Π performed a blood draw on a lion at Busch Gardens and
sustained injuries
1. Δ not liable because of Π’s knowing and unreasonable assumption
of the risk
iii. Hypo 8-2: Δ owned a chimpanzee who escaped; Π is friend who went to
help despite reluctance; chimp found her before she arrived and attacked
her
1. Probably assumption of the risk
e. Activities
i. Two main activities considered abnormally dangerous:
1. Blasting
2. Crop dusting
ii. Ryland v. Fletcher (1868) (669)
1. Δs owned a mill near Π’s mine; they constructed a reservoir near
old disused mining passages that ended up flooding Π’s mine
2. Origins of abnormally dangerous activities doctrine couched in
natural v. unnatural language
iii. Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. (1990) (674)
1. Δ manufactured acrylonitrile and loaded 20,000 gallons into a
railroad car; when it arrived at Δ’s line an employee noticed it was
leaking; EPA ordered Δ to decontaminate which cost almost a
million dollars
2. Restatement (Second) §520
a. In determining whether an activity is abnormally
dangerous, the following factors are to be considered:
i. The existence of a high degree of risk of some harm
to the person, land, or chattels of others
ii. The likelihood that the harm that results from it will
be great
iii. Inability to eliminate the risk by the exercise of
reasonable care
iv. Extent to which the activity is not a matter of
common usage
v. Inappropriateness of the activity to the place where
it is carried on
vi. Extent to which its value to the community is
outweighed by its dangerous attributes
3. The act of shipping the chemicals is not abnormally dangerous
even if the chemicals themselves are abnormally dangerous
iv. Restatement (Third) §20. Abnormally Dangerous Activities

43
 1. An actor who carries on an abnormally dangerous activity is
subject to strict liability for physical harm resulting from the
activity
2. An activity is abnormally dangerous if:
a. The activity creates a foreseeable and highly significant
risk of physical harm even when reasonable care is
exercised by all actors; and
b. The activity is not one of common usage
v. Hypo 8-3: James driving car under the influence and causes property
damage to Linda
1. Probably negligence and not strict liability
2. There might be an argument for negligence per se
3. Depends on whether the activity is seen as driving or driving under
the influence
vi. Hypo 8-5: Δ commits suicide by carbon monoxide poisoning in his
attached garage and his neighbor dies
1. Negligence and not strict liability
vii. The abnormally dangerous activity must be what causes the harm
IX. Chapter Nine: Tort Damages
a. Three types of damages
i. Nominal
1. Not available for negligence where there must be actual damages
to establish the prima facie case
ii. Compensatory
1. Include special and general damages
a. Special: concrete things
i. Loss of wages, medical expenses
ii. Things that it is easy to calculate a number for
b. General:
i. Not easily calculated
ii. Pain and suffering, disfigurement
2. Put Π back in position they were in before they were injured
iii. Punitive
1. Deter and punish defendants for egregious malfeasance
b. Compensatory
i. McGee v. AC and S, Inc. (2006) (687)
1. Π exposed to asbestos and died; estate wanted to recover for his
loss of enjoyment of life
2. The general categories of general damages:
a. Pain and suffering
b. Inconvenience
c. Loss of gratification
d. Life-style
3. There is a conceptual difference between pain and suffering and
loss of enjoyment of life
4. Family members do not have a claim for loss of enjoyment of life

44
 a. Covered by consortium
ii. Compensatory damages are not taxable
iii. Richardson v. Chapman (1997) (699)
1. Π was passenger of a car that was rear ended by a semitrailer
driven by Δ; now a quadriplegic
2. A jury award is excessive if it falls outside the range of fair and
reasonable compensation, it results from passion and prejudice,
and it shocks the judicial conscience
3. Jury verdicts are given a lot of deference
iv. In re September 11th Litigation (2008) (708)
1. Π bought leases to the four World Trade Center Towers for $2.8
billion two months before the 9/11 attacks; sued American Airlines
and United Airlines
2. Suing to recover $16.2 billion so he can rebuild
3. A Π whose property has been damaged can recover the lesser
value between the diminution of the property’s market value or its
replacement cost
4. Lost profits not recoverable because he would use the recovery
money to rebuild and recover profits that way
v. Montgomery Ward & Co., Inc. v. Anderson (1998) (716)
1. Π injured after falling in Δ’s store; she got a discount for medical
services
2. Collateral source rule
a. Δ can’t introduce evidence that some other entity was
paying the damages
b. Restatement (Second) §920A(2)
i. The collateral source rule provides that payments
made to or benefits conferred on the injured party
from other sources are not credited against the
tortfeasor’s liability, although they cover all or part
of the harm for which the tortfeasor is liable
c. Could lead to double recovery but you err on the side of the
victim
3. Exceptions to collateral source rule:
a. To rebut Π’s testimony that they were compelled by
financial necessity to return to work prematurely or to
forego additional medical care
b. To show that Π had attributed his condition to some other
cause, such as sickness
c. To impeach the Π’s testimony that he had paid medical
expenses himself
d. To show that the Π had actually continued to work instead
of being out of work as claimed
e. When Π opens door to financial conditions
4. If you have a claim for damages you have a duty to mitigate those
damages if possible

45
 vi. Zimmerman v. Auslan (1973) (719)
1. Π injured in a car accident; her doctor said it was permanent and
that there was a fairly good prognosis with surgery but that he had
not presented this to her; Δ said it was not permanent
2. You have a duty to mitigate and that includes taking medical
treatment if a reasonably prudent person would take that treatment
a. Jury question
b. Δ has burden of proof that there was a lack of mitigation
and Π had burden of proving it was a permanent injury
vii. Hypo 9-1: Π in a car accident after not wearing a seatbelt; confined to a
wheelchair; Δ learns of surgery that would permit him to walk and allow
him to return to work
1. Should not be allowed to recover for future lost wages or loss of
life style if a reasonable person would submit to the surgery under
the same circumstances
c. Punitive Damages
i. Supreme Court has had an increased interest in this in the past 10-15 years
ii. Awarded for egregious misconduct
1. Maliciousness
2. Reckless indifference
3. Gross negligence
iii. BMW of North America, Inc. v. Gore (1996) (724)
1. Π purchased BMW from Δ; Δ had a policy that if cars were
damaged in transport less than 3% they would repair the damage
and sell the car
2. Three guideposts to determine whether damages are excessive
a. Degree of reprehensibility
b. Ratio: the difference between compensatory damages and
punitive damages
c. Sanctions for comparable misconduct
i. Criminal and civil penalties
3. State courts can put additional restrictions on the guideposts
iv. State Farm Mutual Automobile Ins. Co. v. Campbell (2003) (743)
1. Δ driving in the wrong lane to pass six vans on two lane highway;
one person was killed and one rendered completely disabled
2. State Farm has a business model of fighting every possible claim
and minimizing the amount of money paid to make money on the
claims process
3. Application of the three guideposts from previous case
v. Most jurisdictions have limits on punitive damages awards
1. Common multipliers in many states is triple damages
2. Supreme Court unless but seems to think 1:1 ratio is most
appropriate
X. Chapter Ten: Wrongful Death and Survival
a. Wrongful Death Actions
i. Moragne v. States Marine Lines, Inc. (1970) (756)

46
 1. Π was a longshoreman killed aboard a vessel owned by Δ
2. What is the difference between survival suits and wrongful death
suits
a. Survival: after a person is killed, their estate can continue
with any pending lawsuit
b. Wrongful death: the family member’s claims for their loss
as a result of the wrongful death
c. The big difference is who is suing
3. There was historically no cause of action for wrongful death
a. English felony murder rule: when a person killed someone
they were executed and their possessions turned over to the
crown so there was nothing to recover
b. In the US: beneath the courts to assign monetary damages
to human life
4. What is recoverable in claim for wrongful death
a. Consortium, wages, services, medical expenses, etc.
ii. Selders v. Armentrout (1973) (769)
1. Πs’ three minor children killed in car accident with Δs
2. The old rule regarding recovery for children in wrongful death was
that you could only recover damages for children as potential profit
centers
a. Only recover the net value of the services the children were
going to provide in their lives
3. You can recover for the society, comfort, and companionship of
the child but not for the costs of rearing the child
iii. Hypo 10-1: Π’s husband dies in accident caused by Δ; before the trial for
wrongful death she remarries and changes her name
1. Δ cannot introduce the evidence regarding the name
change/remarriage
2. The recovery should be based on the loss on the day they were
killed, not after the fact
b. Survival Statutes
i. Murphy v. Martin Oil Co. (1974) (777)
1. Δs owned a gas station where decedent was injured by a fire and
died nine days later
2. Allowing a dead person to continue with a lawsuit he would have
had if he had not died
3. Π could recover for the lost wages, pain and suffering, and
property damages that accrued in the 9 day window between injury
and death
ii. Hypo 10-2: Pedro and Wilma both crossing a street when Δ negligently
enters intersection; Wilma killed instantly; Pedro dies in a week
1. No survival statute for Wilma
2. Could be a survival statute for Pedro
XI. Chapter Eleven: Joint Tortfeasors

47
a. Multiple tortfeasors cause an accident and both are liable for the entire obligation
of the claim
i. Π can recover entire judgment from a single Δ that is held liable
b. 3 main areas of joint and several liability
i. Concert of action
ii. Indivisible injury
iii. Vicarious liability
c. Joinder and Liability of Defendants
i. Bierczynski v. Rogers (1968) (785)
1. Two Δs drag raced on the way to work; one of the Δs hit Πs
2. Drag racing was a concert of action that both of them were liable
for
ii. Restatement (Third) §15. Persons Acting in Concert
1. 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
a. Drag racers liable for injuries resulting from racing but not
those from a broken stop light
iii. Coney v. J.L.G. Industries, Inc. (1983) (788)
1. Π died as a result of injuries sustained while operating a hydraulic
aerial work platform manufactured by Δs
2. Some jurisdictions allow comparative negligence and joint and
several liability and some have that comparative fault eliminates
joint and several liability
iv. Banks v. Elks Club Pride of Tennessee (2010) (792)
1. Π was guest at private club and was injured; her injuries were then
compounded by her surgeon and her nursing home
2. Jurisdiction where comparative fault negates joint and several
liability
a. Exceptions:
i. Chair of distribution in products liability
ii. Δs breached a common duty
iii. Concerted action
iv. Vicarious liability
v. Foreseeable and intentional acts (innkeeper rule)
3. There is not joint and several liability when the injuries caused by
the original tortfeasor are enhanced by the subsequent negligence
of physicians and healthcare providers
4. The original tortfeasor is responsible for the subsequent injuries
v. Uniform Comparative Fault Act
1. Take the shares for an insolvent defendant and reallocate across
everyone including Π
vi. Hypo 11-1: A and B played prank on C where they fired shots at the
ground and then shot what should have been empty guns at C; A killed C
by accident

48
 1. B should not be jointly and severally liable for killing C because he
did not shoot C
vii. Hypo 11-2: Π robbed and shot at convenience store
1. Statute says that if Π has any fault Δs are not jointly and severally
liable
2. Π at fault for refusing to give up wallet if a reasonable person
under the circumstances would have done so
d. Satisfaction and Release
i. Bundt v. Embro (1965) (799)
1. Π was passenger in Δ Embro’s car when he collided with another
Δ; in a suit against the state because one of the employees
obstructed the view the state paid damages
2. If you have a judgment against multiple Δs that was satisfied by
one you lost any possible judgment from the others
3. Rule is still applied in most cases: ensure that it is made clear that
the whole judgment is not satisfied
ii. Cox v. Pearl Investment Company (1969) (801)
1. Π fell on property owned by Δ and leased by Goodwill
2. Goodwill had paid Πs $2500 in consideration of their execution of
a “Covenant Not to Proceed With Suit”
a. The general rule about releases is that releasing one
tortfeasor releases them all
3. Carve out claims against other Δs in a release and call it something
other than a release
iii. Maloney v. Valley Medical Facilities, Inc. (2009) (804)
1. Π’s wife not timely diagnosed with osteosarcoma
2. General rule: release of an agent means you have released the
principal
3. Not every state will recognize express carve-outs of parties in
releases
iv. Hypo 11-3: parents sued doctors for malpractice for misdiagnosis of
asthma in son, won judgment, and signed a release re: future litigation;
two years later father brought suit on child’s behalf against the
manufacturers of the medicine
1. Release is limited to negligence and malpractice claims; not
products liability
2. If they are going tortfeasors the release would bar the second suit
v. Elbaor v. Smith (1992) (808)
1. Π hit a tree while driving; she was treated by a series of doctors
over three years and her ankle joint was eventually fused
2. Mary Carter Agreements:
a. Πs settle with some of the Δs who agree to participate in
the trial on Π’s behalf and get some or all of their money
back
3. Types of deals are allowed in most jurisdictions

49
 4. Judges should do what they can to rebalance the scales between
parties:
a. Reordering the trial
b. Changing way peremptory challenges worked
c. Disclosing the agreement to the jury
5. Agreements discourage settlement
e. Contribution and Indemnity
i. Restatement (Third) § 22. Indemnity
1. When two or more persons are or may be liable for the same harm
and one of them discharges the liability of another in whole or in
party by settlement or discharge of judgment, the person
discharging the liability is entitled to recover indemnity in the
amount paid to the plaintiff, plus reasonable legal expenses, if:
a. The indemnitor has agreed by contract to indemnify the
indemnitee, or
b. The indemnitee:
i. Was not liable except vicariously for the tort of the
indemnitor, or
ii. Was not liable except as a seller of a product
supplied to the indemnitee by the indemnitor and
the indemnitee was not independently culpable
2. A person who is otherwise entitled to recover indemnity pursuant
to contract may do so even if the party against whom indemnity is
sought would not be liable to the plaintiff
ii. Restatement (Third) § 23. Contribution
1. When two or more persons are or may be liable for the same harm
and one of them discharges the liability of another by settlement or
discharge of judgment, the person discharging the liability is
entitled to recover contribution from the other, unless the other
previously had a valid settlement and release from the plaintiff
2. A person entitled to recover contribution may recover no more
than the amount paid to the plaintiff in excess of the person’s
comparative share of responsibility
3. A person who has a right of indemnity against another person
under §22 does not have a right of contribution against that person
and is not subject to liability for contribution to that person
iii. Yellow Cab Co. of D.C., Inc. v. Dreslin (1950) (818)
1. Cab hit car driven by Dreslin; Dreslin’s wife and others in the car
were injured
2. Wife’s recovery limited to the cap company because of spousal
immunity
a. Cab company cannot get contribution from the husband for
the wife’s claim because the wife did not have a valid cause
of action against the husband
3. In order to get contribution, there has to be a valid cause of action
against the party who would be providing contribution

50
 a. If that party has some immunity or defense you can’t get
contribution from them
iv. Sakellariadis v. Campbell (2009) (819)
1. Π and Δ had a car accident; three months later she was in another
car accident with the other Δ
2. If you can show how much damage is from each Δ then it is not an
indivisible injury and joint and several liability cannot apply
3. If you can apportion the damages or the fault it is not joint and
several liability
v. Slocum v. Donahue (1998) (823)
1. Δ backing out of driveway; accidentally slip floor mat under the
throttle and there was a defect and the power brakes failed; he hit
Π and killed him
2. Drunk driver could not get contribution from Ford
a. You can’t pursue contribution of you are at fault
3. Driver could not pursue indemnification against Ford
a. You can have contribution and indemnification in vicarious
liability even if there is fault but this is not vicarious
liability
vi. Hypo 11-4: A sues B and C; jury assigns 40% liability to B and 60%
liability to C; B pays A $40,000
1. B cannot recover contribution from C because he did not pay more
than his share of responsibility
2. Contribution is only applicable when you pay more than you are
liable for
f. Apportioning Damages Among Tortfeasors
i. Dillon v. Twin State Gas & Electric Co. (1932) (827)
1. Δ maintained wires to carry electric current over a public bridge in
Berlin; Π and other boys were accustomed to climbing on the
bridge; no electricity was supposed to be there during the day; Π
fell and grabbed the wire and was electrocuted
2. The kid would have fallen and died or been so disabled that he
would not have been able to work and be a profit center
3. You are only liable for the negligence you cause
ii. Michie v. Great Lakes Steel Division, National Steel Corporation (1974)
(829)
1. Πs are 37 persons, 13 families, in Ontario across from Δ plants in
Detroit that emit pollutants
2. Indivisible injury that could give rise to joint and several liability
a. This is a legal question the judge decides
3. But if there is a rational way to apportion the damages then you
have to do that
a. This is a jury question
4. Four carve-out areas where joint and several liability will still exist
a. Concert of action
b. Common duty

51
 c. Special relationship between parties
d. Indivisible harm but can’t figure out allocation
5. Where there are multiple Δs who have acted negligently many
jurisdictions shift the burden to Δs to figure out what the allocation
should be
iii. Restatement (Third) §26. Apportionment of Liability When Damages Can
be Divided by Causation
1. When damages for an injury can be divided by causation, the fact
finder first divides them into their individual component parts and
separately apportions liability for each individual component
party…[or]
2. Damages can be divided by causation when the evidence produces
a reasonable basis for the fact finder to determine:
a. That any legally culpable conduct of a party or other
relevant person to whom the fact finder assigns a
percentage of responsibility was a legal cause of less than
the entire damages for which the plaintiff seeks recover…
3. Otherwise, the damages are indivisible and thus the injury is
indivisible
iv. Bondy v. Allen (2001) (834)
1. Π was a pedestrian when car driven by Δ Allen hit her; Δ Gold
Cross Ambulance treated her; Π’s leg fell off backboard and
touched the floor and caused her pain
2. Medical providers who render aid to an injured person are not
liable for the original injury
a. Not a joint tortfeasor
b. Public policy rationale
3. You can hold medical professionals liable for negligence causing
additional injury
a. There was no additional injury in this case
4. The original tortfeasor can be held liable for the additional injury
caused by the medical professionals
XII. Chapter Twelve: Immunities
a. Protect tortfeasors based on their status in society on the relationship to the Π
b. Historically there were more immunities than there are today
i. Originally complete immunity for family members
ii. Employers from employees
iii. Charitable entities
iv. Government
c. Different between immunity and privilege
i. Privilege: make conduct non-tortious
ii. Immunities acknowledge that it is a tort but say there is no liability for it
d. Families
i. Heino v. Harper (1988) (839)
1. Π passenger in car driven by Δ husband and was in an accident
2. Previous justification for spousal immunity

52
 a. Married couple is one economic unity: like suing yourself
b. Wives are basically chattel
3. View began to change because of insurance
a. First abolished in intentional torts, and then negligence
4. There are consent and privilege issues for engaging with a spouse
that could made tortious conduct non-tortious
ii. Zellmer v. Zellmer (2008) (850)
1. Child’s stepfather watching her when she drowned; biological
parents sue; stepfather relied on parental immunity doctrine
2. Parental immunity applies to stepparents as well as biological
parents if they act in loco parentis
a. Totality of the circumstances test
3. Parental immunity does not apply to wanton and willful
misconduct towards a child
iii. There is no sibling immunity in the Restatement
iv. The Restatement treats the parental relationship as more of a privilege
than an immunity
e. Charities
i. Picher v. Roman Catholic Bishop of Portland et al. (2009) (863)
1. Π sued priest and bishop over sexual assault; priest defaulted;
bishop relying on charitable immunity
2. Public policy argument for charitable immunity
a. You don’t want to donate money to a charity and then have
that money be used to defend against its liability
3. The statute in question says that the church gets immunity against
negligence or any other tort
4. The court interprets the statute according to legislative
history/intent to say that it does not clearly and unambiguously
extend to intentional torts
ii. The Restatement does not include charitable immunity
f. Employers
i. Texas is the only state where you can opt out of Workers’ Compensation
ii. Eckis v. Sea World Corp. (1976) (877)
1. Π was receptionist at Sea World; asked to ride a Shamu for
promotional shoot in a bikini; not told Shamu was acting
erratically or that he should not be ridden without a wetsuit
2. If there is ambiguity about whether or not your claim is within
your employment there is a presumption that it is
3. Workers compensation applies if you get hurt at work even if you
get hurt while not doing your normal job duties
iii. Sisk v. Tar Heel Capital Corp. (2004) (882)
1. Π shift supervisor at Wendy’s; her general manager sexually
harassed her but she didn’t follow the procedures; Δ fired general
manager and said they would hold her job for her; she never
returned to work and was diagnosed with PTSD

53
 2. The type of injury alleged has to be particular/peculiar to the job,
not a risk to the general public
3. If the injury is personal and does not arise from the employment
then worker’s compensation cannot apply
4. Person has to be doing something in the furtherance of the
employer’s business for it to apply
a. Test: an injury is compensable if it arises out of an occurs
in the course of employment
g. Local and State Government
i. Ayala v. Philadelphia Board of Public Education (1973) (886)
1. 15 year old Π had to have arm amputated after it was caught in
shredding machine in upholstery class at his school
2. PA abolished governmental immunity for local governments
3. The prior justification: better for an individual to sustain an injury
than for the public to suffer an inconvenience
a. It now makes more sense when considering loss
distribution to abolish the doctrine
ii. Restatement (Second) §895C. Local Government Entities
1. Except as stated in subsection (2), a local government entity is not
immune from tort liability
2. A local governmental entity is immune from tort liability for acts
and omissions constituting:
a. The exercise of a legislative or judicial function, and
b. The exercise of an administrative function involving the
determination of fundamental governmental policy
iii. Riss v. New York (1968) (894)
1. Π terrorized by Burton Pugach; she consistently asked the police
for help but they did not; he hired someone to throw acid in her
face after she got engaged; she had called the police after he called
to warn her it was he last change and they did nothing
2. Because the police owe a duty to everyone, they do not owe a duty
to anyone
a. This isn’t really an immunity case because the government
didn’t even have a duty to breach
3. Police would face a lot of litigation
iv. Restatement (Second) § 895D(3). Official Immunity
1. A public officer acting within the general scope of his authority is
not subject to tort liability for an administrative act or omission if:
a. He is immune because engaged in the exercise of a
discretionary function,
b. He is privileged and does not exceed or abuse the privilege,
or
c. His conduct was not tortious because he was not negligent
in the performance of his responsibility
v. DeLong v. Erie County (1982) (905)

54
 1. Π called 911 when intruder was in her house; 911 operator wrote
address down wrong and then dismissed call as a prank; if call had
been placed correctly the local police could have arrived within a
minute; she died
2. The 911 operator voluntarily assumed the duty to not negligently
send the call to dispatch
3. When you voluntarily assume a duty to act you take on the duty to
act with reasonable care and the possibility for liability
4. When the police agree to take care of you as an individual there
can be liability if they fail to do so
vi. Restatement (Third) § 44. Duty to Another Based on Taking Charge of the
Other
1. An actor who, despite no duty to do so, takes charge of another
who reasonably appears to be:
a. Imperiled, and
b. Helpless or unable to protect himself or herself,
2. Has a duty to exercise reasonable care while the other is within the
actor’s charge
3. 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
vii. A lot of states have adopted statutes to override the doctrine in the
Restatement so that people are more encouraged to help
viii. Hypo 12-1: Δ was driver of car of government owned airport police
officer who collided with Π and claimed he was immune because he was
acting in his discretion to choose the route
1. The officer was acting in a ministerial way so his argument should
be rejected
2. Choosing a route does not amount to a discretionary choice
h. Federal Governmental Immunity
i. Federal Tort Claims Act
1. Federal government has waived immunity for a lot of things it
traditionally had immunity for
ii. Deusser v. Vecera (1998) (912)
1. Fair held at national park in jurisdiction of National Park Rangers;
Π went to fair and got arrested; regular police too busy to handle it;
Rangers took Π to a parking lot with no money or transportation;
he wandered onto a highway and died
2. Park Rangers were acting within discretion
a. Conduct must be within the economic, political, and social
goals of a particular policy they were acting under
3. Federal government still has immunity for a lot of things:
intentional torts

55
XIII. Chapter Thirteen: Vicarious Liability
a. Don’t have to have done something blameworthy yourself to be liable under
vicarious liability
b. Respondeat Superior
i. Papa John’s International, Inc. v. McCoy (2008) (921)
1. Π ordered pizza to his house but asked delivery guy to come to his
office to be paid; delivery guy says Π held him there and talked
about homicide with a gun on his desk; Π said employee wouldn’t
leave; police later apprehended Π for unlawful imprisonment but
the charges were later dropped; he then sued Papa John’s
(franchisor), franchisee restaurant, and employee
2. A franchisor’s liability must arise over something it had control
over
3. Restatement (Third) of Agency § 7.07
a. An employer is subject to vicarious liability for a tort
committed by its employee acting within the scope of
employment
b. 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 and purpose of the
employer.
c. For purposes of this section,
i. An employee is an agent whose principal controls
or has the right to control the manner and means of
the agent’s performance of work, and
ii. The fact that work is performed gratuitously does
not relieve a principle of liability
4. If an employer ratifies an employee’s action that was outside of the
scope of their employment they could still be vicariously liable
ii. Hypo 13-1: employee left annual Christmas party after drinking and killed
a pedestrian
1. There are states that would find vicarious liability here but it would
be a stretch
c. Independent Contractors
i. Bell v. VPSI, Inc. (2006) (930)
1. Π’s husband was a volunteer driver in a carpool program; he was
given a van that he could use for personal purposes
2. Independent contractors have sole control over the way the job is
done
a. Different from employee
3. You cannot have vicarious liability for an independent contractor

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 4. The burden of proving that an independent contractor agreement is
not an independent contractor agreement is on the person
challenging it
5. Restatement (Second) § 423. Making or Repair of Instrumentalities
Used in Highly Dangerous Activities
a. One who carries on an activity which threatens a grave risk
of serious bodily harm or death unless the instrumentalities
used are carefully constructed and maintained, and who
employs an independent contractor to construct or maintain
such instrumentalities, is subject to the same liability for
physical harm caused by the negligence of the contractor in
constructing or maintaining such instrumentalities as
though the employer had himself done the work of
construction or maintenance
b. Carve-out: if you have a hazardous activity and you have
someone else use or create the equipment for that
dangerous activity, then you are still liable even if they are
an independent contractor
ii. Hypo 13-2: A took car to mechanic B who overhauled the brakes; 2
months later A’s brakes failed and she hit C
1. A should be liable to C because driving a vehicle is a highly
dangerous activity so respondeat superior applies to B’s work even
though he is an independent contractor
2. A will have indemnification claim against B
d. Joint Enterprise
i. Erickson v. Irving (2009) (936)
1. Three men went to a scotch tasting; driver left with someone else
and gave his keys to one of the other guys; they stopped at a bar;
they collided with a dump truck and one of the guys died
2. Three elements of a joint enterprise:
a. Agreement, express or implied, to do some joint
undertaking
b. Community of interest: common goal
c. Equal authority to control the undertaking
d. Most jurisdictions have a 4th element: the community of
interest is pecuniary
3. Generally speaking, passengers in cars are not in a joint enterprise
ii. Restatement (Second) § 491, comment c
1. The elements which are essential to a joint enterprise are
commonly slated to be four:
a. An agreement, express or implied, among the members of
the group
b. A common purpose to be carried out by the group
c. A community of pecuniary interest in that purpose, among
members; and

57
 d. An equal right to a voice in the direction of the enterprise,
which gives an equal right of control.
2. Whether these elements exist is frequently a question for the jury,
under proper direction from the court
e. Bailments
i. Ziva Jewelry Inc. v. Car Wash Headquarters, Inc. (2004) (940)
1. Travelling sales rep. for Π went through car wash with jewelry in
the trunk; thief stole the car which was recovered without the
jewelry
2. The bailee is only responsible for the possession you give them if it
is visible or the type of thing you would expect to find in the car
3. You become a bailee when you voluntarily assume the custody and
possession of the property of another
ii. Hypo 13-3: Π sued Δ because his motorcycle was stolen in Δ’s garage but
there was an agreement that he parked at this own risk
1. Garage should not be liable as a bailee
2. Garage did not have the keys and could not have had control and
possession over it
f. Imputed Contributory Negligence
i. Watson v. Regional Transportation District (1988) (945)
1. Π was passenger on motorcycle driven by Δ husband of which she
was co-owner; ran into RTD bus after it stopped suddenly
2. The trial court imputed her husband’s negligence to her so she
could only recover 51% of the damages
3. Old rule: you can control the driver (carriage days)
a. If you were actually trying to control the driver you would
be negligent
4. Imputed negligence is not applied with respect to passengers in
cars
XIV. Chapter Fourteen: Nuisance
a. Non-trespassory interferences
b. Private:
i. There needs to be unreasonable significant interference with the use and
enjoyment of your property
1. According to a reasonable man test: would the ordinary person find
this conduct to be such an interference
ii. Restatement (Second) §821D. Private Nuisance
1. A private nuisance is a non-trespassory invasion of another’s
interest in the private use and enjoyment of land
c. Public:
i. Substantial and unreasonable interference with the community interests or
the general public’s convenience or comfort
ii. Restatement (Second) §821B. Public Nuisance
1. A public nuisance is an unreasonable interference with a right
common to the general public.

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 2. Circumstances that may sustain a holding that an interference with
a public right is unreasonable include the following:
a. Whether the conduct involves a significant interference
with the public health, the public safety, the public peace,
the public comfort, or the public convenience, or
b. Whether the conduct is proscribed by statute, ordinance or
administrative regulation (nuisance per se), or
c. Whether the conduct is of a continuing nature or has
produced a permanent or long-lasting effect, and, as the
actor knows or has reason to know, has a significant effect
upon the public right
d. Restatement (Second) §821F. Significant Harm
i. There is liability for a nuisance only to those to whom it causes significant
harm, of a kind that would be suffered by a normal person in the
community or by property in normal condition and used for a normal
purpose
e. Restatement (Second) §822. General Rule
i. One is subject to liability for a private nuisance if, but only if, his conduct
is a legal cause of an invasion of another’s interest in the private use and
enjoyment of land, and the invasion is either:
1. Intentional and unreasonable, or
2. Unintentional and otherwise actionable under the rules controlling
liability for negligent or reckless conduct, or for abnormally
dangerous conditions or activities
a. If it is unintentional you will still be liable if it results from
negligence or recklessness or an abnormally dangerous
activity
f. Restatement (Second) §826. Unreasonableness of Intentional Invasion
i. An intentional invasion of another’s interest in the use and enjoyment of
land is unreasonable if:
1. The gravity of the harm outweighs the utility of the actor’s conduct
(risk-utility analysis), or
2. The harm caused by the conduct is serious and the financial burden
of compensation for this and similar harm to others would not
make the continuation of the conduct not feasible
a. Controversial
b. Only some jurisdictions have adopted this and say that if it
is a beneficial nuisance you can continue it and pay
damages to the aggrieved parties
g. Carpenter v. Double R. Cattle Company (1985) (956)
i. Πs are homeowners who live near a cattle feedlot owned and operated by
Δs
ii. The utility outweighs the nuisance
1. So little industry in Idaho
h. Mills v. Kimbley (2009) (962)

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 i. Π and Δ are neighbors; Π kept a diary of Δ’s disruptive activities (loud
music, not trimming trees, etc.)
ii. Private nuisance subcategories:
1. Nuisance per se:
a. A nuisance in itself
b. Question of law
2. Nuisances per accident:
a. Nuisances in fact
b. Question of fact
i. Hot Rod Hill Motor Park v. Triolo (2009) (965)
i. Π Triolo sued Δ alleging that the race track constituted a nuisance; Δ
permanently enjoined from operating track; Π moved away; Δ moved to
alter the judgment and trial court denied it
ii. A possessor of property has the right to sue for nuisance
1. A possessor of a property is:
a. A person who occupies the land with the intent to control it
b. A person who occupies the land with the intent to control it
if no other person has subsequently occupied it with the
intent to control it
c. Entitled to immediate occupation of the land if no other
person is in possession
2. Occupants may also bring suit for nuisance
j. Hypo 14-1: Π owns land with his home, a small restaurant, and room and
accommodations for twenty trailers; Δ operates oil refinery nearby that emits
nauseous gases and odors
i. A private citizen can sue for a public nuisance and get damages when they
also have a personal interest in the case that is comparatively large than
that of other people
ii. This would also be a private nuisance
k. Hypo 14-2: Δs own a nursery at their home that is on a block with other business;
Πs sue for nuisance for noise children make
i. Reasonable person test would preclude this action
ii. There is not a significant harm if everyone else on the block is fine with
the noise (commercial area)
l. Philadelphia Electric Company v. Hercules (1985) (969)
i. PICCO owned land on DE River and deposited resins on it; they sold the
land to Gould; PECO bought it from Gould and had several inspectors
look at it; PECO had to clean up the land and it cost a lot of money
ii. There can be no private nuisance claim
1. Designed to solve disputes between neighbors
iii. There can be no public nuisance claim
1. PECO is not trying to use the water so they do not have an interest
in line with that the public nuisance would be
m. Boomer v. Atlantic Cement Co. (1970) (976)
i. Δ operated large cement plant; Πs were neighboring land owners

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 ii. The New York rule that existed at the time said that Πs who proved a
nuisance could get an injunction despite any economic consequences
iii. This court is using the risk-utility analysis from Restatement (Second)
§826b
1. Pay Πs permanent damages for past and future injuries suffered
from nuisance and continue operation
iv. Restatement (Second) § 827. Gravity of Harm – Factors Involved
1. In determining the gravity of the harm from an intentional invasion
of another’s interest in the use and enjoyment of land, the
following factors are important:
a. The extent of the harm involved
b. The character of the harm involved
c. The social value that the law attaches to the type of use or
enjoyment invaded
d. The suitability of the particular use or enjoyment invaded
to the character of the locality; and
e. The burden on the person harmed of avoiding the harm.
v. Restatement (Second) § 828. Utility of Conduct – Factors Involved
1. In determining the utility of conduct that causes an intentional
invasion of another’s interest in the use and enjoyment of land, the
following factors are important:
a. The social value that law attaches to the primary purpose of
the conduct;
b. The suitability of the conduct to the character of the
locality; and
c. The impracticability of preventing or avoiding the invasion
vi. Restatement (Second) § 829. Gravity vs. Utility – Conduct Malicious or
Indecent
1. An intentional invasion of another’s interest in the use and
enjoyment of land is unreasonable if the harm is significant and the
actor’s conduct is
a. For the sole purpose of causing harm to the other; or
b. Contrary to the common standards of decency
vii. Restatement (Second) §829A. Gravity vs. Utility – Severe Harm
1. An intentional invasion of another’s interest in the use and
enjoyment of land is unreasonable if the harm resulting from the
invasion is severe and greater than the other should be required to
bear without compensation
viii. Restatement (Second) § 830. Gravity vs. Utility – Invasion Avoidable
1. An intentional invasion of another’s interest in the use and
enjoyment of land is unreasonable if the harm is significant and it
would be practicable for the actor to avoid the harm in whole or in
part without undue hardship
ix. Restatement (Second) § 831. Gravity vs. Utility – Conduct Unsuited to
Locality

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 1. An intentional invasion of another’s interest in the use and
enjoyment of land is unreasonable if the harm is significant, an
a. The particular use or enjoyment interfered with is well
suited to the character of the locality; and
b. The actor’s conduct is unsuited to the character of that
locality
n. Spur Industries, Inc. v. Del E. Webb Development Co. (1972) (986)
i. Π developed chose to develop city near Δ’s feed lots because of cheaper
land prices; had trouble selling property due to odors
ii. Coming to the nuisance rule:
1. If you build or acquire property next to a nuisance you can’t get
relief for the damages you face from the nuisance
iii. Developer given the injunction but had to pay damages to the feed lot
because they created the problem by coming to the nuisance
1. Totality of the circumstances test to determine the best outcomes
for all parties involved
o. Restatement (Third) § 840D. Coming to the Nuisance
i. The fact that the plaintiff has acquired or improved his land after a
nuisance interfering with it has come into existence is not in itself
sufficient to bar his action, but it is a factor to be considered in
determining whether the nuisance is actionable
p. City of Claremont v. Kruse (2009) (993)
i. Δs operated medical marijuana dispensary in Π city but did not have a
business license or tax certificate
ii. There was a statute that said operating a business without these things was
a nuisance: nuisance per se
q. Hypo 14-3: Π city sues Δ handgun manufacturers alleging that they sell to
distributors who resell to dealers who sell to general public
i. There is no non-trespassory interest being violated here that would make
this a nuisance
ii. People using guns as superseding causes
XV. Chapter Fifteen: Products Liability
a. Privity
i. Connection or relationship between two parties, each having a legally
recognized interest in the same matter
ii. Historically in products liability you were unable to sue manufacturer
because you did not have privity with them if they did not sell you the
product
b. Development of Theories of Recovery
i. Negligence
1. MacPherson v. Buick Motor Co. (1916) (1000)
a. Π drove car with defective wheel; claimed Δ Buick should
have discovered the problem with the wheel before they put
it on the car
b. Privity of contract no longer required to sue product
manufacturers

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 c. Historically the product had to be inherently dangerous to
recognize products liability
i. Here the court is expanding this to say that if the
product could become imminently dangerous
because of a defect, then it could still be brought
under products liability
ii. Breach of Warranty
1. Manufacturer agrees that the product will work for a certain period
of time and if it doesn’t they will replace it
2. Express warranty: representations by the seller or manufacturer of
the product re: its characteristics
a. Baxter v. Ford Motor Co. (1932) (1003)
i. Π claimed that Ford and St. John Motors both told
him the windshield was made of nonshatterable
glass; it did shatter and he lost his eye
ii. Don’t have to prove that the product was defective
iii. Have to prove that what was represented and what
you received were different and you were injured as
a result
iv. Breach of warranty claim exists in the absence of
privity
b. Restatement (Third) §9. Liability of Commercial Product
Seller or Distributor for Harm Caused by Misrepresentation
i. 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
ii. Material fact: influences the person’s decision to
buy it
iii. There is a causal connection between
misrepresentation and injury
3. Implied: every product comes with an implied warranty of
merchantability
a. It can be used the way it is intended to be used safely
b. Henningsen v. Bloomfield Motors, Inc. (1960) (1007)
i. Π bought car from dealer for his wife; small text at
bottom of purchase order said that there were no
warranties, express or implied by the dealer of
manufacturer except that the person had 90 or 4,000
miles days to take the part to the factory to replace
it; steering wheel spun and car was so destroyed it
was impossible to determine if parts were defective
but insurance inspector said it must have been

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 ii. Another nail on privity coffin: don’t even have to be
the buyer of the product (wife driving)
iii. There is an implied warranty for fitness of use by
law regardless of whatever the warranties are that
the manufacturer sets out
iii. Strict Liability
1. Greenman v. Yuba Power Products, Inc. (1963) (1019)
a. Π’s wife gave him a Shopsmith after he saw a
demonstration; he bought an attachment to turn it into a
lathe; a piece of wood flew out of the machine and hit his
forehead
b. For strict liability to apply you have to show that there was
something wrong with the product when it was being used
for its intended purpose
c. You need to be able to show that there is some sort of
defect that interferes with its intended use
d. Show that there is a way to make the product safer
2. Restatement (Second) § 402A. Special Liability of Seller of
Product for Physical Harm to User or Consumer
a. 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:
i. The seller is engaged in the business of selling such
a product, and
ii. It is expected to and does reach the consumer
without substantial change in the condition in which
it is sold
b. The rule stated in Subsection (1) applies although:
i. The seller has exercised all possible care in the
preparation and sale of his product, and
ii. The user or consumer has not bought the product
from or entered into any contractual relation with
the seller
c. There is a negligent component in this Restatement
i. Having to show that the product is defective and
could have been made more safely
d. What does unreasonably dangerous mean
i. From the perspective of the average ordinary user
and what they would consider dangerous
ii. This is not true strict liability
3. There are two big tests to determine unreasonably dangerous
across jurisdictions
a. Consumer expectation test

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 i. It is more dangerous than the average consumer
would appreciate/understand/expect
ii. This is essentially a negligence test
b. Risk-utility analysis
i. Weigh the benefits and risks to society to determine
if something is unreasonably dangerous
ii. Seven different factors:
1. The utility to the public and individual user
2. Likelihood that it will cause harm
3. Availability of a safer design
4. Could have been made safer at reasonable
price
5. Could the consumer use the product safely if
they exercise great care
6. The awareness the consumer would have of
the dangers of the product
7. The ability of the manufacturer to spread the
costs related to improving the product across
a spectrum of consumers
c. Product Defects
i. Restatement (Third): Products Liability §1. Liability of Commercial Seller
or Distributor for Harm Caused by Defective Products
1. One engaged in the business of selling or otherwise distributing
products who sells or distributes a defective product is subject to
liability for harm to persons or property caused by the defect
ii. Marie Pierere-Louis v. DeLonghi America, Inc., et al. (2009) (1024)
1. Fire killed Π’s daughter who was a guest at the home; fire caused
by oil-filled space heater that had been unintentionally placed
upside down
2. She claimed that there were all three types of product defect claims
a. Manufacturing defect
i. Comparing the way a product was built to the way it
was supposed to be built
ii. Product wasn’t made like it was designed to be
b. Design defect
i. Three components:
1. The defect was the cause of the injuries
2. The product was not designed to be
reasonably safe
3. There was a feasible alternative safer design
c. Failure to warn
iii. Restatement (Third) §2. Categories of Product Defect
1. 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:

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 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;
i. This is the closest of the three to strict liability even
though there is still an element of fault here
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;
i. Foreseeability is the foundation of negligence, not
strict liability
ii. The idea that it could have been made differently
speaks to negligence of some kind
c. Is defective because of inadequate instructions or warnings
when the foreseeable risk 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
i. Foreseeability is the foundation of negligence
ii. Reasonableness component is very negligence
based
iv. Manufacturing Defect
1. The product must be perfect when compared to the design
v. Design Defect
1. Timpte Indus., Inc. v. Gish (2009) (1028)
a. Π climbed on top of truck to load fertilizer in it, fell off
because it was windy
b. Risk-utility analysis with 5 factors
i. The utility of the product to the user and to the
public as a whole weighed against the gravity and
likelihood of injury from its use
ii. The availability of a substitute product which would
meet the same need and not be unsafe or
unreasonably expensive
iii. The manufacturer’s ability to eliminate the unsafe
character of the product without seriously impairing
its usefulness or significantly increasing its costs
iv. The user’s anticipated awareness of the dangers
inherent in the product and their avoid ability
because of general public knowledge of the obvious
condition of the product, or of the existence of
suitable warnings or instructions

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 c. An average person would recognize the risk and there were
reasons for it being designed the way it was
d. A different design would decrease the utility
e. You do not have to warn for obvious dangers
f. The most important factor for this court is whether there
was a reasonable alternative design that, at a reasonable
cost, would have reduced the foreseeable risk of harm
2. Hypo 15-2: exploding cigar
a. Under a traditional Restatement analysis this product would
not be unreasonably dangerous
b. But its utility is so low and there is no safer alternative
3. Hypo 15-3: John has compact automobile and sues because it does
not offer same level of crashworthiness as full-size
a. Not a design defect
b. Can’t make it safer without completely changing the
product and the price
4. Malcolm v. Evenflo Co., Inc. (2009) (1037)
a. Δ manufacturers car seats; its prior model failed safety
standards; had some knowledge of current model having
issues; Π in a car accident and car seat broke and her son
died
b. Most jurisdictions allow evidence of failure to comply with
safety standards as proof of a defect but do not allow
evidence of compliance with safety standards as proof that
there was not a defect
i. You can introduce compliance under the
Restatement
c. Most jurisdictions allow state of the art evidence in design
defect and failure to warn cases
i. Speaks to the reasonableness element
d. This jurisdiction using the reasonable expectation of the
consumer test
i. Where there is less incentive to make the product
safer
ii. Less jurisdictions use this
vi. Failure to Warn Defect
1. Anderson v. Owens-Corning Fiberglas Corp. (1991) (1047)
a. Δs manufactured asbestos products
b. State of the art evidence not relevant to a design defect
claim but is relevant to failure to warn
c. Test for duty to warn:
i. There is a foreseeable risk of harm posed by Δ that
could have been reduced by the warning
ii. Negligence more than strict liability

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 2. Hypo 15-4: Pool Co. had warnings not to dive; Π dove and his
hands slip apart on slippery bottom and he hit his head; the
slippery bottom was the best and safest lining
a. No theory of recovery for products liability
d. Proving Products Defect
i. Freidman v. General Motors Corp. (1975) (1062)
1. There was some sort of defect in Π’s car that allowed it to start
while it was in drive.
2. In order to recover, a Π must show that the product was defective,
that it was in that condition when it left the manufacturer, and that
the defect was the proximate cause of the injury
3. If there is circumstantial evidence that shows by a preponderance
of the evidence that the accident was caused by a defect.
a. More likely than not that the defect is the source of the
problem and not any other source.
b. Original parts, other potential causes eliminated, service
records, etc.
c. Relationship to res ipsa loquitur
ii. Restatement (Third) §3. Circumstantial Evidence Supporting Inference of
Product Defect (Similar to Res ispa loquitur, restatement).
1. It may be inferred that the harm sustained by 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
e. Defenses
i. Several different possible defenses
1. Unforeseeable misuse
2. Sophisticated purchaser
3. Changing the product
4. Assumption of the risk
5. Contributory negligence of the plaintiff
ii. Plaintiff’s Conduct
1. Daly v. General Motors Corp. (1978) (1069)
a. Π driving drunk without seatbelt or locked door; hit metal
divider; car door sprung open and he was thrown out
b. Contributory negligence at the time was not allowed in
products liability actions but assumption of the risk was
and was a complete defense
c. Court here is applying comparative fault principles to
products liability actions

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 d. Conceptual difference between comparative negligence and
assumption of the risk:
i. Carelessly acting and getting hurt in the process
ii. Knowing the risks and voluntarily assuming them
e. Wanted to eliminate the anomaly where Δ would win in a
products liability case with an assumption of the risk
defense and lose in a negligence case on the same grounds.
iii. Hypo 15-5: Chair Co. makes chairs with horizontal slats that Π climbs and
falls off
1. Π’s claim should be rejected because although the misuse of the
product was foreseeable, the misuse was so unreasonable that the
manufacturer did not need to design against such a misuse
iv. Hypo 15-6: Toilet Seat Co. use special more expensive material that
requires more work to make; one of the employees misses a step in the
production, Π stands on the toilet seat and it breaks
1. Claim would probably be rejected because Π’s own fault in
causing her injuries was more than 50%
v. Preemption and Other Government Actions
1. Medtronic, Inc. v. Lohr (1996) (1088)
a. Congress passed Medical Device Amendments of 1976 that
required approval of some medical devices before they
were put on the market with some exceptions; these
exceptions included the grandfather provision and the
substantial equivalent doctrine which Δ used for its
pacemaker; Π had pacemaker which failed (probably for
defect) and required emergency surgery
b. Basic preemption rules: if Congress is going to preempt a
state law, then they have to be clear about this intention
c. Preemption should only apply to things in conflict 55

69