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c c  

 
   


 1. Peaceful means, 2. Deter, 3. Encourage socially responsible, 4. Restore injured parties, 5. Vindicate.
!" 
þ º#
 $% look to only consequences to evaluate.
R &'(&)"( maximized overall society welfare. 
R
"""&") we should do those things that produce the most happiness for the most people. 
  º""* difficult to quantify, sacrifice rights if protecting them causes less happiness or overall welfare.
þ % º $% look to rightness and justice. 
R  Êhe social contract model is ruled by luck, intelligence, wealth, social status, race, gender. Êo determine
rules of law, we should step behind the veil of ignorance where we don¶t know what status we will have in life and
then decide what rules we would reasonably agree to. (Created the ex ante perspective) 
þ %% c  We should create rules that minimize overall accident costs and create incentives for optimal
precaution (those that cost less than the accident loss).
+","-"",-'&
þ   Writ of trespass (forcible breaches of the king¶s peace, direct, tangible invasion, no proof of damages or fault
required, precursor to intentional torts) + Writ of Êrespass on the case (wrongs not on king¶s registrar, indirect invasion,
proof of damages and fault required, precursor to negligence)
þ c ./+
 
ë Kind of absolute liability concerned with compensation. Fault has no rule could be a
complete accident.
R "&&*"' Simply crossing the boundary is sufficient to constitute trespass. º 
O
R (("'& Still liable b/c someone has to compensate. Î   Î ë Êhe soldier case where accidentally shot
in skirmish)- but planted the seed for liability w/ fault. Dicta said if utterly without fault could be not liable.
þ   
% % need unlawful intent or negligence to be liable.( 
 
ë dogfight broken up with
stick that hit other owner)- Motivationë Industrial revolution accidents. Unforeseeable eventsëno liability. º
 
fainted while driving)

  


þ
 1)PURPOSEFUL OR 2)SUBSÊ ÊI LLY CERÊ I contact will result from actions 
R IÊEÊ ÊO H RMë not requiredr
þ 0  
R 
c º . (Y - little boy pulls chair out, subst. certain contact with ground)
R º+ % àY $ à Y  intent to strike),%
1 capable of forming intent to contact.
Generally liable. Free radicals- we can¶t affect incentives. 
R $1 no defense to intentional torts. à

 
 - shot dog while wolf hunting). 
þ  º.ë someone has to pay shouldn¶t be the victim.
   % 
r
 Intent to harm one person transfers to another- 
þ 0 ë à   threw stick at boy, hit another)
r
ë Intent for one tort transfers to another tort- B FÊÊ (battery, assault, false imprison, trespass land/chattel)
þ 0 ë (   Î struck tavern door with hatchet, scared wife) 
þ  º. someone has to pay, still intended harm. 

r c . unpermitted touching
þ
 1) Intent to contact, not harm 2) Offensive or harmful contact
þ 0  
R &-&&'' a reasonable person would find contact harmful or offensive. 
    (unsolicited hugm paralysis) reasonable person would not have thought. 
  '"&,(&(2r'3&4,  Î   
 fire drill push) 
  &'"4&",& enough. i.e. spitting, blowing smoke, pull chai
R %"("&'"((&( indirect= not fist in face. (pulling chair suffice- Y )
  (!'& contact with something attached or closely identified with the body is enough.
(÷ - snatch plate, ³we don¶t serve negroes here´)
R %&5!2- contact all that matters. i.e. sleeping beauty. "(, harm still intended and resulted.
R /' can make an action offensive enough to be a battery. 
R v"&&4,"&6"  º 
 O
R "-&,(&*&('"(,))"&4)-,- even unforeseeable.
  (v  
- kick sparked old infection resulted in amputation). 
  "(,ë someone has to pay, want to discourage intentional acts that can be potentially harmful. 
cr 
 apprehension of harm
þ
 1) intends to put person in reasonable apprehension 2) ctually places person in imminent apprehension of harm. 
þ 0  
R &-"", enough, not actual ability. (unloaded gun) (Î


  solicited sex to fix clock,
couldn¶t reach over desk) vs. criminal assault (doesn¶t require apprehension, but actual ability) (loaded gun)
R  not required, but anticipation of contact.
R & required to apprehend harm. i.e. Sleeping Beauty can¶t be assaulted. 
R ))"&&!) contingent or future threats are not assault.
R /' can make an assault out of normally not assault behavior.
ºr   º $ %  
þ
 1) Intend conduct 2) Extreme and outrageous conduct 3) Causal connection 4) Severe emotional distress
þ 0  
R º')&   
 (stutterer harassed by supervisor)
R !-'",!) 
  º  
(trashmen threaten for business) RULEë IIED if threat of -'",!)
   - no longer require threat of bodily harm. 
R &'"2"'2&-""" if aware, adds to outrageousness and consequences liable. 
R &-&("2 severe emotional distress must be from reasonable perspective. 
   ÷ ÷    (check your own price, you smell!) 
R º&*&( liable for mental distress and physical harm. 
þ c.%  c .
    v 
  (watched dad beat up)
R Family memberë 1)know presence 2)reasonable anticipation of distress
R Otherë requires proof of physical harm too. 
%r  $ $ w/out legal justification
þ
ë 1) intent to confine 2) conduct results in confinement 3) plaintiff aware of confinement unless child or insane. 
þ 0  Confinement can result from physical force, barriers, or present threats of force. Unlawful, warrantless
arrests constitute. Bounded area need not be small room or home. Can be large i.e. stranding someone in the desert. 
r   % ³Quase clausum fregit´ë wherefore he broke the close
þ
 
R 1) Intent to enter, not trespass (ï   surveyor entered thinking his land)
R 2) Direct or indirect invasion ( 
  
shooting ducks across someone¶s property. Bullets=invasion)
R 3) Êangible invasion
þ 0  
R $!' 1)unauthorized entry 2)exceeding consent scope 3)failure to remove. (  Road commissioners left
steel stake on property, lawnmover over it, killed him)
  &-&!-2 unless completely unusable land. ( 
 (sewer line vs. cave)
  ("&4)2&(
  c&"(" is still trespass. 
R (("'& accidental trespass without negligence or intention, no liability. 
R $"7&!" no defense. (ï  
R º&*&( liable for all actual consequences that result- even unforeseeable. Emotional recoverable. 
r  º+  trespass on my stuff. Liable for diminished value of the chattel
r ºv  serious interference with the chattel. Where dominion and control exercised and interfered with property
rights. Liable for entire value. 

 v 
r º Valentia nonfit injuria´ to one who is willing, no wrong is done. 
þ
 8")"'(&&
þ 0  
R 8 i.e. unconscious person consents to life-saving surgery, football player consents to tackle 
R )"' 5c"&- boat vaccination case. Lifting arm implied consent.) Silence implies consent, unless limited
English. 
þ 0º 
R 8('"&4(&& 
       
 - football player hits other in head out of frustration. gainst FL rules so
no implied consent. 
  
 .    Î - operated on the other ear while in surgery because diseased, not life
threatening. Doing a substantially different act than one authorized to do, exceeding consent.
R %(),("!8(&&" 1)unable to give consentë child, drunk, mentally ill, unconscious 2)risk
of serious bodily harm if treatment delay 3)reasonable person would consent 4)no reason to believe would refuse 
R ' negates consent. (ï   - doctor brings friend along during labor, holds her hand)
   consent induced by subst. mistake and mistake known or induced by other¶s misrep. is not effective. 
R % consent under duress is invalid. 
R 4( depends on policy of denying compensation, deterrence effect, intentional, in pari delicto (equal guilt)
cr  %  
þ
 permitted to use &-( unless threat of serious bodily harm, then deadly force.
þ 0  
R &,!&' cannot extend self-defense to retaliation. 
R  even if can retreat, privileged to use self-defense.
R $"7 reasonable mistake as to need still privileges self-defense. 
R +)9', not liable if unintentional and not negligent. 
R 44"4! once retreat, aggressor can use self-defense.
R /' threats and insults do not privilege self-defense unless violent gestures or actual threat of physical violence.
R c'& on defendant to prove actions necessary, unless police office. 
ºr %  +  
þ
 permitted to use reasonable force when reasonably foresee battery. If threat of serious bodily harm, deadly force. 
þ 0  
R +"&444 can be liable. 
R $"7&(", still privileged. ( 
%r %    . 
þ  º &- force. %',( if threat of serious injury or death or destruction would cause serious emergency.
(   
- shotgun spring seriously injured trespasser)
þ !"&4( cannot because if wound, liable, but can threaten with a gun. Can threaten. 
þ Only can defend against &"&"&r
þ $"7"2"4 only defense if misled identity. 
þ 6("& cannot be unreasonable. Cannot throw teenager off of moving train because trespass unless danger to those on
premises. 
þ (')"&&-&( how much property worth, instrument used, size, sex, age, how much time,
alternatives
r º. 
þ
 may trespass to avert imminent public or private disaster, but liable for damages if private necessity. 
þ 0  
R /!&&(,2&5&&!5"   Y  (blew up house to prevent fire spread)
Mayor not liable because public necessity. Good faith belief required. 
R º&(&5&, v

    (docked boat during storm and destroyed dock) 
  8("& act of God, no damages.
  &')4 usually the form of compensation for private necessitated trespass.
þ  º. we want to encourage people to protect the public and not be discouraged by fear of tort liability. Someone has to
pay for damage when private necessity.
r 
+ .  / authorities privileged to engage in certain tortuous conduct.
þ
 authorities are privileged to engage in certain tortuous conduct. 
þ 0  
R Can arrest w/out warrantë if prevent felony, if reasonably believe felony just committed, if misdemeanor in presence. 
R Liable if excessive force
R Private citizen can arrest too. 
r %º  
þ
 can use reasonable force if reasonably believe necessary to maintain control, training, or education
þ 0  parent, guardian, temporarily in charge of watching, teacher, military/naval officers, master of ship.
+r §
 º 
þ
 catch-all privilege for intentional torts if justified.
þ 0  
R 
ë (vandalizing bus, false imprisonment claim taking to police station, kids jump out window, injured). Bus
driver justified false imprisonment to maintain order, prevent damage to property.


 ºë conduct falls below the standard established by the law for the protection of others against unreasonable risk
þ
 1)duty 2)breach 3)causation 4)injury
þ 0  
R $!' affirmative act or by failure to act when duty to act legally
R c'&ë on the plaintiff
r %
. standard of care
þ + c 
%  
R $ º.
 
 
 reasonable person in a similar emergency standar'
  0  
þ º  (thief jumps in taxi cab to escape, threatens cabby to drive, cabby jumps out of car, which
runs into woman and children) HELDë not negligent b/c reasonable in emergency. 
þ Êhe emergency must be unforeseen, sudden, and unexpected. 
þ Don¶t have to pay damage.
R +.º º+ º º 
 
 courts take into account physical handicaps. RPP w/ handicap standard. 
  0  
þ   
 (blind man working at post office, not using cane, bumps elderly man,
injures him) HELDë not liable b/c reasonable for blind to traverse w/out case when familiar area. 
   º. to promote involvement in society. Êhese handicaps can¶t be changed.
R $ º+ º º 
 
 courts do not take into account mental handicaps, illnesses, or deficiencies. RPP standard.
  0  
þ v 
  
 (hay rick built close to houses despite warnings, no defense that not smart) 
   º. to promote education, smart behavior, prevent lying about mental abilities. 
R 1/ % 
 
 must have and use knowledge of an average person in the community. Ignorance is no defense.
  0  
þ Beginnersë held to same standard as average person. 
þ Expertsë held to higher standard. Reasonable expert standard. 
   º.ë we want to promote smarter behavior and not encourage slacker beginners. 
R º+ %  
 
 reasonable child standard unless adult activity or inherently dangerous activity. 
  0  
þ 

 
  (child driving snowmobile injures passenger) Dangerous activity. Liable.
   º.ë someone has to pay, encourage parents to supervise, encourage children to not participate. 
R + c /$% % 
 
 in sexual harassment cases, reasonable woman standard.
  0   
 (creepy co-worker) 
   º.ë different perceptions b/c increased risk of violence for women, stronger incentives to find
something inappropriate, RPP standard would reinforce discrimination. 
R    % % objective standard of ordinary reasonable professional in that field. 
 
 reasonable professional in that field standard.
  0  
þ º)(&"'"& admissible to consider what is reasonable, but not conclusive evidence.
R  only have to protect by conforming to custom if had prior notice of danger. 
R 8&"& 
 
&&-()     (not custom to have radios on tug
boats, lost in storm, lose cargo). Unreasonable custom. Liable to incentivize
changing the custom.
  $'"()("( custom is always conclusive evidence of reasonable. 
þ 7"&'"&"&4'"&( 
R  all held to average standard unless expert then higher standard.
R 8&"&   Î
ë (novice pilot crashes plane and kills passengers) 
| "(, we want to discourage ill-trained individuals from participating in such
professions until skill has improved and we want to encourage training.
þ º&("&4 can contract for higher or lower standard. 
þ -&7 does not change standard. Policyë discourage poor work for the poor. 
  º º  
 
þ %  % to lessee
R  Duty to warn of existing dangers. 
R 8&"& 
  Duty to conform to custom if notice of danger.à   
ë tenant fell
through glass in shower, serious injuries, custom is shatter proof glass)
  ot liable for dangers that come into existence after lessee takes possession.
  If take on repairs, can be liable for negligent repairs. 
þ %/ 3 / to entrants
|    
   
þ o duty generally. 
þ If on notice or anticipate trespasser, duty to warn.
þ If trespasser highly anticipatable, may have duty of reasonable care. 
  8&"& 
þ 
man trespassing on railroad tracks, gets foot stuck, gets run
over. o recovery b/c didn¶t notice presence until right before hit him.
þ Duty to warn especially if artificial condition created by landowner
  "(, Generally, private ownership, undesirable to interfere with use of land,
trespassers are unpredictable. 
R º person with permission to enter for licensee¶s purposes. Includes firemen,
policemen, social guests, salesman.
   
þ Duty to warn of known dangerous conditions.
þ If continuing dangerous activity on land, duty of reasonable care. 
  8&"&      talking about lodge membership at house,
crazy son attacks him. o reason to believe would attack, so no duty to warn. 
R v invited on the premises by the landowner for landowner¶s business. Includes
public employees, rescuers, and even those that don¶t purchase anything.
   Duty of reasonable care to make safe. 
  8&"& 
social guest goes to the bathroom. Faucet cracked.
Landowner knows, didn¶t warn. Injure hand. Recover b/c knew and didn¶t warn.
  $"&", Plaintiff status not determinative. Consider foreseeability,
burden, consequences, connection, moral blame of possessor, policy, and
insurance. Status may have bearing on some factors. 
R º+ %  Higher standard than for adults.
  $6", considered invitees. Duty of reasonable care from artificial
conditions ifë anticipatable, know harmful, hidden danger for youth, slight
burden to make safe. ( !!")
  $"&", attractive nuisance requires anticipation and reasonable care. 
þ  . 
R  reasonable, ordinary attorney similarly situated standardë required to possess
learning and skill, exert best judgment, exercise reasonable and ordinary care
R 8&"& 
  Loss must be proximate result of a want of ordinary knowledge or skill. If good
faith and honest belief best interest of client, not liable.   º  
lawyer serving process mails b/c custom for 20 years. ot received w/in statute
of limitations. ot liable. 
  Rule of perpetuitiesëattorneys not usually liable for knowing this rule. ot
required to know everything.
þ $%º 
R  reasonable doctor unless specialist then reasonable expert. 
R 8&"& 
  Custom is conclusive evidence of what is reasonable. 
þ Use ational standard of careë  
    urethral lab
done standing up, fainted. ational standard to sit or lie down. Liable.
Overruled locality rule, only meant for urban/rural disparities. o
longer exists with national accreditation. 
þ Some jurisdictions use similar cities rule. 
  Diagnosisë given wide discretion. 
  Expert testimony required to prove reasonability unless obvious
þ   
 follow-up on surgery, should have x-rayed, when just
taped. ot liable b/c not obviously negligent and expert is second
doctor and only said what he would do.
þ º  . courts do not define because based on church doctrine. 
þ º+ not recognized because cause and effect of inadequate learning can be student or
teacher¶s fault and don¶t want to divert resources from education. 
þ c  1 only required to protect against reasonable risks. 
R c :
   when magnitude of risk outweighs utility or social value of act ( #"$!
  8&"& 
þ º&"'"& alternatives, extent of harm, conduct¶s advancement of interest, social value
extent. 
þ §,'(""&   Î    (whether need to get out of car and look, or stop look
and listen for train when at tracks) 
  "(,(& too much discretion to the jury, are they all reasonable?, inconsistent rules, cant predict what
conduct should be which could increase accidents  promote justice based on case-by-case basis. 
R  c :
   only required to protect against foreseeable risks.
  8&"& 
þ    teen grabs wheel. Laughs. Driver doesn¶t pull over. 2nd pull foreseeable.
þ 8'"&,("()&(   
 Î    water pipes freeze 25 years
after installation. Freeze never happens,
  "(, we want to promote people participating in society and econ and not have to prevent every danger. 
| º º
 c  1 
   %+%  $
 
þ   burden < probability X loss) m negligent if don¶t act. Êhe reverse is true. 
þ 8&"& 
R  º 
barge not attended, breaks loose, and sinks. Burden < probability
(busy area) x cost (entire sunk ship)
R ï 
 
guardrail not strong enough to hold car skidding on a road. Held
no duty if cost prevents necessary services i.e. public access to roads. Modern costs lower
þ "(, 
R  places burden on least cost accident avoider, consistent allows conform behavior. 
R º& inefficient application (some parts of burden yield more savings than others), not
applicable in medical unless very obvious, probability neglect (after accident tend to
focus on loss and not probability), doesn¶t promote other purpose of tort law only
efficiency, cant reduce human life to a number. 
  1
 3 options. 
þ º&("22"'&(&4"4&( 
R  1)statute 2)designed to protect class 3)from injury statute designed to protect.
R 8&"& 
  Look to intent of statute.
  |
    - drug store clerk didn¶t label as poison when statute.)
R 8("& 
  Rest. court sanctioned excusesë 1)incapacity 2)justifiably unaware 3)unable due
to circumstances 4)emergency not caused by own conduct 5)compliance riskier. 
  Court discretionë
1. o common law dutyë à  - friends reporting child abuse
statute at daycare. Only common law duty for doctors, teachers, clergy)
2. o causationë ( 
  - statute requires lights. Car no lights,
but other car veering into lane.)
R "(,ë reasonable to rely on laws, provides notice to conform behavior, keep people
safe, provides guidelines for jury.
þ --)"& 
R  presumption of negligence until rebutted.
R 8&"&
  Burden of production is shifted to the defendant. Only requires some evidence.
If parties in equipoise, rebutting party wins, but must say something or lose.
  X
- statute requires to walk on sidewalk. If can¶t, walk facing the traffic. She
walks wrong way, hit by car. dequate excuseë sidewalk really dangerous.
R 8("&ë restatement court sanctioned excuses and any other reasonable excuse.
þ 2"'&(&4"4&( some jurisdictions.
R  only evidence. Can say nothing and jury could still find not negligent.
R "(, prevents disproportionate liability, prevents liability w/out fault, assures injury
direct result of statutory violation before liability, not courts role to enforce criminal.
  º%   +
þ %,&4 generally no duty to rescue unless create risk.
þ (""&!" i.e. teacher/student, landowner/visitor, employer/employees,
carrier/passenger, innkeeper/guest, prisoner/jailer, husband/wife, parent/child, donor/donee
| /"!!2"(")
  º&2"&)&",!) One who has control over
instrumentality that causes injury has a legal obligation to take affirmative steps
to rescue the person. Even if didn¶t cause the original situation, still duty.
(a shopping store, little boy finger caught in escalator, unreasonable time
to turn it off. Breached duty.)
  
&"2",2",'" à17 year old girl becomes druggie at
college. HELDë no duty to supervise university students. ssumed maturity.
University only meant to educate.)
| /"!!
  /&"&4 required to warn victim of violent tendencies/intentions of
mental patients to psychotherapist. ( - communicated intent to kill
someone, didn¶t warn victim of intentions, stopped therapy, killed her). 
r c º+ 
 Must prove«
r /!!&' (direct or circumstantial evidence)
  º º
$ v%º inference of a fact from the circumstances.
þ  if enough circumstantial evidence to draw a reasonable inference, the issue of whether negligent will
be sent to the jury.
þ 8&"&
R c&&(ë - clean grocerie store floor every 35 minutes, could¶ve just dropped
banana and no notice or not done a good job. a
%- dry, gritty, black, flattened over, reasonably
laying there for a while. Sent to jury.
r %&'&('&&-,r
   #
 inference of negligence. ³Êhe thing speaks for itself´ i.e. surgical tool left in patient. 
þ  Requires 1)thing under defendant¶s control 2)accident does not ordinarily happen w/out negligence
3)event could not have been brought about by the plaintiff. 
þ 8&"& 
R º'&''ë 
- flour barrel falls out of window on head. 
R &'&4 Conclusions based on past experience and common sense ( !#& tire blowing out
vs. things falling off house) Must prove that negligence was immediate, precipitating cause.
à ï  - spare tire falls out from under trailer and hits car behind)
R !(ë plaintiff does not have to rule out all other possible causes. Defendant does not
have to prove actual cause. 
R ('( 
r &&(&4"4&( M ORIÊY
   Defendant can still win if silent. Up to the jury. 
  8&"& 
 º  - guest in car died when overturned after
driver swerved. Driver couldn¶t say why. ury found not liable b/c more
probable that not negligent. 
r --)"& 
   Burden of production on the defendant. Must provide some evidence. 
9r )"&&4"4&( 
   Burden of proof on the defendant. Must prove more probable that not
negligent. 
R 8")&, only allowed when not in common knowledge that doesn¶t occur w/out
negligence. (Policy- Meant to be a common sense judgment) 
R $'"((' where unexplained injury results to a part of the body not under treatment,
res ipsa loquitor M Y apply agai nst all of the doctors and med employees in contact. à  -
appendectomy, wakes up paralyzed, many doctors came in contact). Policy= unconscious
particularly vulnerable, compensation, conspiracy of silence. 
R &&((" not purpose of res ipsa b/c not safe. ust inference of negligent acts
þ "(,  defendant has control of the evidence- ³smoking out the evidence´; impossible to know what
happened, especially for plaintiff. º& outdated by discovery proceedings. 
9r º
  
r º
 º actual cause
þ
 'a| ;c
  5 If the injury would not have happened but for the negligence.
þ 0  
R !&4"4&()(!"&6,&!"&". ( 
- train speeding, hit car at blind
intersection. HELDë even if not speeding couldn¶t have stopped in time to not hit the car.)
R $"7,!&& the negligence must more likely than not the cause of injury. (ï  -
Benedictin for morning sickness, limb reduction birth defects. ot liable b/c didn¶t pass test.
þ 0º when negligence does not have to be causation in fact.
R $'"((!&( lose the chance for a better outcome b/c of your negligence.
  -&"( Plaintiff does not have to prove that better chance would have happened
but for the negligence, only that increased risk was the substantial factor of the injury.
    - doctor failed to diagnose lung cancer. 39% chancem25% chance of survival.
  %)4 liable only for damages directly traceable to the malpractice, not the inevitable death.
  "(, discourage giving up on the terminally ill. Only in medical b/c consequences are greater
here and difficult to measure increased injury
þ ºº
º
 two joint tortfeasors.
R §"&&'2 "-"",  plaintiff can choose to sue either or both, but cant recover damages 2x
R 8&"& 
r /!&5("&"&"("&& need both actions to cause injury, each liable. 
þ   
 parked car mid road, could¶ve turned, hit car. Each tortfeasor is wholly
responsible, even though act alone would not have causedr
# /!&c+5("&"("&& both could¶ve caused w/out the other, but
both negligent so both liable. If one is substantial factor, liable for all. 
þ a
 
ë railroad fire merges with another fire and burns down property. If one
negligence would have caused anyways, liable irrelevant of whether another force.)
9r /!&-!&4"4&- .&('!2('!) both liable unless prove one.
þ %&'&!-'& that didn¶t cause the harm. 
þ    both shoot, one hits eye, no evidence which. 
þ $7!"-"",- way to measure likelihood of causation. à
- DES to
prevent miscarriage, caused cancer in children. ction against 5 manufacturers b/c any
could have manufactured the exact drug. Proportionately liable based on market share)
Bad policy?ë only one caused the harm, guilty not paying enough, innocent paying.
R %("&º&"-"& defendants can sue each other for how much each pay.
r  0$º
 legal cause.
þ $§ .
 Foreseeability test
R  If the injury is beyond the type of harm to be expected from the conduct, not liable. 
R 8&"& 
 
&-)!' insignificant. Only the consequences have to be foreseeable. 
þ Rat gets covered in gas on vending machine in a room with an open flame, burning down
room is foreseeable b/c gas and open flame even though rat unforeseeable 
þ Î 
 
- ship leaking oil, worker dropped molten metal, fire burned wharf and 2
ships. ot liable for wharf, liable for ships b/c differences in evidence. Liable when
foreseeable that molten metal causes fire.
  %&4<& zone of duty defined by foreseeability of harm.
þ   - guard helps guy to catch train, drops package of fireworks, explosion, scales
down the track fall on lady. ot liable b/c not in danger zone. 
R 8("& !"&7344!"&" even though cant foresee victim¶s vulnerabilities, still liable.
   
- car accident caused psychotic break. Liable b/c take plaintiff as they are. 
þ $ .
 Direct cause test 
R  injury must be in the unbroken chain of events directly traceable to the negligent act. 
R 8&"& 
  - drops plank on boat, sparks, lit petrol vapor afire. Liable even though not foreseeable.
  !"-"'"&4 Only liable for the damages to the first building your negligence burned
down. 
- Railway spark started fire in their woodshed, spread to houses. ot liable b/c
damages remote. Policyë too great of liability, all run some risk. Most courts denounce this rule.
þ  v%
 %º
 if superseding, cuts off liability to original tortfeasor. 
R /!&"&2&"&4'"&4( 
  &2&"&4(")"7&4"4&( 
þ ÷- construction site has insufficient barriers, car accident on site after driver has a
seizure, spills boiling liquid of plaintiff. Liable b/c accident is a natural consequence of
insufficient barriers, the original negligence.
  &2&"&4(5(&*&(- 
þ  if foreseeable, can even be liable for new or aggravated injuries. 
þ 8&"& 
R 8) 
  egligent rescuers
þ ('("& Danger invites rescue. 
þ Liable for injuries to rescuer if rescuer accident foreseeable
and original is proximate cause of injuries. 
þ º - stop to help accident, walk back to car, hit. 
  Subsequent medical malpractice
  Subsequent disease
  Subsequent accidents if negligence is substantial factor in accident
and/or injury. 
þ Î 
- railroad negligence causes tank truck to derail and
spill. 3rd party lights match. Explosion. Foreseeable that light
match. Gas is substantial factor in producing accident. 
R
&-)!' only consequences need be foreseeable. 
R $"("( OÊ foreseeable. 
R /!&"&2&"&4'"&4( 
   1)intervention brings about different kind of harm than original negligence could have
2)unforeseeable consequences 3)intervening force independent of any situation created by
defendant¶s negligence. 
  8) 
þ cts of God
þ Criminal/malicious acts of 3rd person i.e. lighting match on purpose (Î 

þ Intentional torts of 3rd person
þ Extraordinary forms of negligent conduct. 
=r %$
þ   
 only actual damages, never nominal or punitive unless willful conduct. Special and general recoverable. 
þ 0  
þ ("')4 economic damages like lost earnings and future earnings, medical expenses. 
þ &')4ë non-economic like pain and suffering, emotional and mental distress, loss of enjoyment of life.
þ "&("()&"& restore victim, only tool, single lump prevents return w/ more injury. 
þ +/º º
 
þ $0$
$ ºv .
 ury award must be less than maximum amount reasonable jury would award. 
þ 8&"& 
  Considerë 1)past physical and mental pain 2)future physical and mental pain 3)future medical expenses
4)loss of earning capacity 5)permanent disability.
  a
 
 daughter severely burned when heater defectively malfunctioned. 2 million dollars. Move for
remittitur to reduce damages for excessiveness. Held not excessive when consider the elements.
þ (""( 
  
º$º  
þ  if injury is only economic, not recoverable. Must be accompanied by physical damage to
recover for economic loss. 
þ 8&"& 
O Parties affected economically by original loss cannot recover unless suffered physically. 
rd
O 
ship collided w/ vessel. Fumes escape. Hurt sea life. 3 party suffered
economic loss due to the closing of the waterway. o recovery. 
þ 8("& courts are moving away from Êestbank. i.e. fisherman recover loss to marine.
þ "(, 1)liability cut off somewhere or too costly 2)incentivize inclusion of loss in price
3)foreseeability limited 4)no loss to social utility, where one lost, another gained. 
    º $ %  
þ !,"()&""& Majority rule. 
O  requires proof of definite and objective physical injury as a result of mental distress
O 8&"& 
  o physical impact required.
  ï   º  negligent car hit pole, explosion destroyed house. o
physical impact, but Daley mom and son suffered extensive emotional distress
o 8("& negligent interference w/ dead bodies, death telegrams. 
O "(,  objective standard º& excludes recovery for distress when no physical.
þ ! 
O !,"(")( Old rule.
   physical impact/harm must cause the emotional distress and physical
injury in order to recover. 
  8("& mishandling of corpses. 
  "(,  bright line limits scope b/c emotions are natural part of human
condition, remoteness, and difficult to measure emotions in money terms. º& 
expanded what constitute physical impacts, why rule fell apart. 
O X&'&4 ew rule. 
   need no impact if within the zone of danger and physical manifestation. 
þ c,&' 
o !"&4 Majority ruleë requires«1)close relative 2)observes or contemporaneously
aware of accident 3)severe emotional distress. (
 son hit by a car. Informed of the
accident and ran to him.)
o %"& Minority ruleë foreseeability w/guidelines on how to narrow foreseeability.
o -"", Minority rule.
o "(,  limits liability caused by human emotional condition and disproportionate
results.º& even if no severe emotional distress, recover b/c saw it happen.
  $%º 0 only reasonable. Cannot recover if unnecessary or excessively high. Future
medical expenses must be proved by expert testimony. Courts may consider risk of future medical issues. 
  %
º%  0ºº. not recoverable b/c incalculable and duplication of damages. 
þ $ 
þ §'"("2" 
  )"" court can reduce recovery if excessive.
  ''" unconstitutional to increase award unless defendant allows. 
þ º( insurance payment does not reduce recovery. 
þ $""4"&')4 plaintiff has a duty. 
þ &2 lump sum reduced to present value. Consider inflation and interest.
þ "&()8r

%  
þ º c
 . º  OLY 4 SÊ ÊES SÊILL USE) 
þ
 if plaintiff is 1% contributorily negligent, she is COMPLEÊELY B RRED from recovery. 
þ 0 
     ÷  - Forrester repairing house, places pole in road, Butterfield doesn¶t see b/c riding
really fast, and hits pole. HELDë o recovery b/c doesn¶t excuse plaintiff¶s negligence. 
  2'&"&&"&r
þ  º. keeps the plaintiff thinking about their duty. Mitigation of damages. General economic balancer
þ º  º+º0º 
   where defendant has last clear chance to avoid the accident and fails to do so then even if the
plaintiff is negligent, can still recover b/c defendant is the last human wrongdoer. 
  8&"& 
þ ï  

- man grazes donkey on side of public highway. Wagon speeding, hit and killed
donkey. HELDë Recovery b/c doesn¶t matter that donkey wrongfully there, wagon had last chance
to take care and did not.
þ !+"&"&'(&("'&'& the unconscious drunk and honks but no break.
o  all courts conclude that defendant had the last clear chance and negligent account
o 8&"& Have to prove 1)discovered plaintiff 2)had time to act 3)failed to exercise
reasonable care. 
þ !+"&"&'&&"2'&'& the unconscious drink and primping driver
o  courts are split.
þ !&&"2"&"&'º&("'&'& reading pedestrian, honks but no break. 
o  Most courts agree defendant had last clear chance.
þ !&&"2"&"&'&&"2'&'& driver primping, pedestrian reading.
o  last clear chance does not apply b/c can¶t decide who is last wrongdoer. 
  "(, plaintiff¶s negligence is no longer the proximate cause, last negligence has a higher degree of fault.
þ /+. ºº .c +%>don¶t point towards who is most culpable, who¶s incentives can affect.
Most of the change was legislative action. Courts reluctant to change b/c made lots of statutes moot.
þ º$ v º 
þ
  pportion damages based on respective degrees of fault. Damages just reduced by own negligence.
þ 0  
  ()"2&4"4&( (12 SÊ ÊES)
þ  no matter how negligent, still recover portion defendant responsible for. 
þ $"'&'& these jurisdictions have gotten rid of joint and several liability where
plaintiff can choose who to sue b/c the percentage is what matters now.
  $'""'()"2&4"4&(  
þ _?6"'"("& ;4!&5 plaintiff can recover if 50% or less negligent, but
only the percentage. (20 SÊ ÊES)
þ =@?6"'"("& ;*5 plaintiff can recover if 49% or less negligent, but only the
percentage. (12 SÊ ÊES)
o 
   

- dopted 49% rule in Êennessee. Car wreck b/w 2 intoxicated
drivers. One is speeding. HELDë one is more negligent comparatively. Makes last clear
chance doctrine obsolete.
þ $"'&'& depends on if the court considers plaintiff¶s negligence to the entire
negligence of all defendants or one defendant. Most jurisdictions compare to all defendants added
up. 
þ  º. more equitable, but also arbitrary lines. 
þ  +§
%º  OLY South Dakota.) 
þ
 If slight negligence, recover minus what responsible for. If more than slight, no recovery. 
þ 
$  1 defense in negligence and strict liability. 
þ 0 
$  1 
 
 requires«1) Voluntary 2) Injury within scope of release 3) Release isn¶t contrary to public policy. 
  0  
þ Usually not against public policy if signed.
o !8("& 
r When exculpated party does intentional, reckless, or grossly negligent conduct.
r When bargaining power is grossly unequal.
9r When public has interest in the transaction. i.e. public servicesë medical, food,
commons carriers, shelter, economy? Skiing?
o 
  ÷- written gym membership agreement has exculpatory clause if injury.
HELDë clause valid to excuse liability b/c not against public policy if signed freely. o
unequal bargaining power b/c free to go elsewhere. o intentional, reckless, or grossly
negligent conduct. Fitness club not an essential service.
þ $ %
$  1 
 
 requires«1) Knowledge of the risk 2) Sense of scope/magnitude of risk 3) Voluntarily subject
4) Reasonable alternatives. 
  0  
þ - tenant fell through outhouse floor negligent kept that was the only option provided by
landlord. HELDë no assumption b/c no alternatives.
  0º 
þ -)'"&()"2&4"4&(4")  
decided following designations. 
o "),")"')"&"7= (voluntarily enter knowing about inherent risks
that are commonly accepted so no protect). Same as saying no duty.
o (&',")"')"&"7= (voluntarily encounter existing risk created by
defendant¶s negligence or knowledge that defendant likely to be negligent). 
  &-)"& still no recovery. Unreasonable rule.
  &&-)"& no recovery. Êhis is comparative negligent rule

vº 
 c . ³RESPODE Ê SUPERIOR´
þ
 an employer is held vicariously liable for«
o 4"4&( that occurs ³within the scope of the employment relationship´
o &&"& that are committed in the ³furtherance of employer¶s business´.
þ 0  
o ),3),"&!" 
  6/"!"&!(),)&Aº&"'"& foreseeability. à ##&
þ ct employed to perform.
þ ct occurs substantially within the authorized time and space limits of the job
þ Êhe act is actuated at least in some art by the desire to serve/benefit the master D 
þ If force used by the servant.
  º)"&4&'4"&4 commute usually not within scope.
þ 8("& 
R ),")"7!!"'7%!"7"
-r
  - if conduct so startling, not fairly attributable to employer. 
   - employer gets sick from pesticide sprayed at work. Leaves early, hits
car. HELDë employee¶s accident was foreseeable and arose at work. 
R %2r"( 
   detour is a slight deviation where employer still liable. Frolic is when
employee leaves business purpose entirely where employer not liable. 
  8&"& 
  º&"'"& employee intent, when and where deviation, how long
deviation, typical work responsibilities, incidental actions reasonably
expected by employer, how much latitude enjoyed in work.
  |  - During work, store manager drove to give worker football
tickets. On way back, turned into car service station. Wreck. 
  Dual purpose ventures are usually detours.
  More likely detour if in business vehicle. 
o &'&'&(&( 
  %"&""& free from control/direction of employer. Lately consider if employer receives primary benefit.
þ º&"'"& 1. Extent control details 2. Distinct business? 3. Supervised work? 4. Who
supplies tools? 5. Êime employed 6. Paid by hour or project? 7. Party¶s own beliefs.
þ  - ewspaper deliverer strikes customer. ot liable. o connection w/ employer. 
   employer not liable for independent contractor negligence or intentional torts.
  8("& supervision for negligence 2) non-delegable duties 3) work inherently dangerous. 
  "(, too much autonomy to reasonably expect employer to control. 
o &')&""("& Employer can seek compensation from employee if required to pay.
o &("& to not do something, does not relieve employer liable.
þ  º. 1) best position to decide if should have taken care, 2) deeper pockets and paying victim most important, 3) least
cost avoider, 4) can spread costs.

 º c . liability w/out fault«
r c $ .% 
ºv 
þ
 foreseeable risks that cannot be eliminated by ordinary care. 
þ 0  
R ' (-&),'&4 1) high risk 2) likelihood of substantial harm 3) reasonable care cant
eliminate risk 4) commonness of activity 5) appropriate location 6) benefit to community. à ($"
  First three are questions of residual costs. More likely to impose strict, if high residual costs.
R - 
  Must be the kind of harm the possibility of which makes the activity absolutely dangerous. 
þ $-&(&*&(("2",  ÷ - blasting operations caused minks to
eat their kittens. HELDë not liable. ervous disposition, not inherent blasting risks.
þ º&(&'"!("2",&-6(!("2",  º
  railroad car
transporting toxic chemicals through Chicago leaks in railroad yard. HELDë
transportation not abnormally dangerous, the chemical is. truck only way transport, cant
avoid Chicago b/c hubs in big cities.)
R "(, don¶t need to affect subject incentives, but activity incentives. 
R & &'&4&' 
 (built reservoir on mill land, broke, flood coal mine.
Builders negligent, not owner. HELDë non-natural, dangerous use of land, strict liable.
  º&"'"& place where occurred, customs, natural fitness of premises for purpose.
R c"&4 
    ë (blasting damage from shock waves. Êhere was no physical trespass) HELDë
One who sets off explosives is absolutely liable for damage caused even if no trespass or fault. 
R &   - struck by stray bullet ricocheted out of police fire practice. RULEë guns are not abnormally
dangerous b/c reasonable care will suffice, common activity, appropriate location, benefits community. 
R (' strict liability does not apply where owner has no reason to anticipate act. (Y 
-
hydroelectric plant w/ dike in river. Hurricane causes overflow. ot liable for escaped water on land.)
r / %$  
þ
 possessor is held strictly liable for resulting harm done by wild animal. 
þ 0  
R Even if domesticated, defanged, or declawed. Still strict liability. 
R %)"(&")ë Possessors liable if had knowledge of propensity of harm or not where supposed to be.
à
- horse graze w/ other and attacks other owner. Owner knows previous vicious tendencies. Liable)
R &-" entitles every dog to one free bite. 
R %& if plaintiff voluntarily and knowingly puts himself in harm¶s way or if he incites the animal
9r  %
º c . 
þ
 one who sells a product in defective condition unreasonably dangerous to the consumer is held strictly
liable. Must proveë 1)While using in way intended 2)injured 3)as a result of defect 4)which plaintiff not aware. 
þ 0  
R Liable for personal injury ifë in business, defective, dangerous, expected to reach consumer w/out change.
à )*# 
R "4"& privity of contract and breach-> negligencem express warranty in advertisement or instructionsm
implied warranty of merchantability that can be used for intended purpose safelym no contract but tort law,
should be strict liability standard. 
R , manufacturer, retailer, distributor, but not occasional seller.
R %"&(")ë 1)manufacturing defect 2)Defective design 3)Instruction/warning defect.
R º&"(2"'&57&,r (Y 

- injured when power tool
malfunctioned. Êen months later gave manufacturer notice of breach of warranty. HELDë liable.)
R $'&)"&",&' manufacturing defects are strict, while design/warnings are negligence (9' ) 
þ  º. Purpose is to ensure costs of injuries on manufacturer that puts product in market rather than powerless
victim. Warranties don¶t serve this purpose. Manufacturer has the most information as to what went wrong. Plaintiff
lacks information to prove. Difficult to prove in general. Company already has liability insurance. Insurance should
reflect dangerousness of product. 
 º.  º c . when considering if apply, look to rationale and whether application would fulfill purpose.
r Internalize the costs. Why should costs belong to enterprise?- Cost benefit analysis best done by enterprise. 1. Expensive to have
court figure it out. 2. Courts don¶t have all the information 3. Residual risk- accident harm that cant be eliminated by due care will
be born by the enterprise instead of the victim. Êhe enterprise can then decide whether the business profits outweigh or not social
harm caused to victims. 
r Someone has to pay. Shouldn¶t be the victim. 
9r Incentivesë Êhe incentives should be the same under negligence and strict liability. Under both should take optimal precautions
- Prosë creates incentive to protect b/c the less they protect the more they have to pay. Incentive to overall decrease harm and
make more safe. When organization bears residual costs, incentive to take into account activity levels, not just care levels and
decide if activity worth continuing. 
- Consë o incentive to protect because already liable. 
=r Fulfills purposes of tort law. Peaceful means, deter wrongful, encourage socially responsible, restore injured parties, vindicate
_r Economically efficient- take optimal precautions that wouldn¶t cost more than the accident cost if always liable. Social utility.
'r Discourages undesirable activities. Discourages continuing if activity level doesn¶t outweigh accident costs. egligence doesn¶t
make people think about activity levels. Doesn¶t discourage socially harmful activities. 
Br Helps with transaction costs by not requiring the plaintiff to come up with all that information. Can it increase transaction costs?
More suits. Probably not as much b/c likely to just pay. 
Cr Dangersë im afraid im going to get sued, so I might have an irrational predisposition to overinvest in safety. 
%  
þ º)"2&4"4&( can reduce and defeat recovery. ï - accident when intoxicated and incorrectly wearing
seatbelt, door latch opened and ejected him b/c manufacturing defect. HELDë reduced liability. )
þ $"'( generally not liable for misuses of product unless reasonably foreseeable useà÷ - killed when started
tractor while in gear standing aside it when switch designed to prevent tractor from being started in gear.)



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