THE LAW OF TORTS

Fall 2016

Amber Leary
Prof. Twerski
 The Law of Torts
Fall 2016

● INTENTIONAL TORTS
A) Defining Intent
1) Restatement
2) Garrett v. Daily
3) Ranson v. Kitner
4) Transferred Intent
(a) Talmage v. Smith
B) Battery
1) Restatement
(a) Harmful Contact
2) Offensive Contact
(a) Restatement
(b) Brazoka v. Olsen
(a) Objective Test
(c) Contact Requirement
(a) Fisher v. Carrousel Motor
(b) Creation of Risk
3) Damages for Intentional Torts
(a) Punitive Damages
(b) Respondeat Superior
C) Assault
1) Restatement
(a) Elements
(a) Intent Requirement
● Western Union Telegraph Co. v. Hill
(b) Apprehension Requirement
(c) Conditional Threats
D) False Imprisonment
1) Restatement
2) Confinement
(a) Grant v. Stop-N-Go Market of Texas, Inc
(b) Shopkeepers Privilege, Rezendez Test
3) New York Shopkeepers Defense
E) Intentional Infliction of Emotional Distress
1) Restatement
2) Elements (Nagata v. Quest Diagnostics)
(a) Intentional or Reckless
(b) Extreme or Outrageous
(c) Casual Connection
(d) Severe Emotional Distress
F) Trespass
1) Trespass to Land
(a) Restatement

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 (a) Intent
● Rogers v. Kent County Board of Road Commissioners
(b) Damages
2) Trespass to Chattels
(a) Restatement
(a) Liability
● Intel Corp.v. Hamidi
(b) Conversion
(a) Restatement
(b) Determining Seriousness
G) Umbrella Intentional Tort
1) Restatement
● PRIVILEGES AND DEFENSES
A) Consent; The Basics
1) Restatement
(a) O’Brien v. Cunard Steamship Co.
2) Implied Consent
(a) Hackbart v. Cincinnati Bengals, Inc.
(b) Christman v. Davis
3) Consent Invalidated by Fraud
(a) DeMay v. Roberts
4) Consent by Duress
(a) Grager v. Schudar
B) Informed Consent
1) Scott v. Bradford
(a) Tests
(a) Rice v. Brakel
2) New York Statute
C) Self Defense
1) Restatement not death threatening
(a) Instigating?
(b) Defense of others
(a) Making a mistake
2) Restatement Death Threatening
(a) Hattori v. Peairs
3) Defense of Property
(a) Restatement
(b) Katko v. Briney
(c) Self Help
D) Necessity
1) Vincent v. Lake Erie Transportation Co.
E) Umbrella Justification Defense
1) Sindle v. New York City Transit Co.
● NEGLIGENCE: THE DUTY OF CARE
A) Introduction: Elements of Negligence
B) Negligence Balancing
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 1) The general standard of care
(a) Lubitz v. Wells
2) The Hand Test
(a) US v. Carroll Towing Co.
(b) Washington v. Louisiana Power and Light Co.
3) Risk Utility Balancing
(a) Liability for foreseeable risks
C) The Standard of Care of a Reasonable Person
1) What a reasonable person knew or should have known (the P in the B<PL)
(a) Vaughn v. Menlove
2) Knowledge
(a) Brewer v. Murray
(b) Restatement Sec 12
3) Emergency
(a) Cordas v. Peerless Transportation Co.
(b) Getting it Wrong
4) Custom
(a) Trimarco v. Klein
5) Physical and Mental Attributes
(a) Physical Disabilities
● Roberts v. State of Louisiana
(b) Mental Disabilities
(c) Religious Beliefs
(d) Children
● Restatement Sec. 10

● Stevens v. Veenstra
6) Professionals
(a) Info
(b) Hellings v. Carey
7) Judicially
(a) Courts Utilizing Risk Utility Balancing to Decide as a Matter of Law
(a) Timpte Industries Inc. v. Gish
(b) Negligence Per Se
(a) Restatement sec 14
(b) Presumption of Negligence
● Martin v. Herzog
(c) What Statutes Qualify?
● Reque v. Milwaukee Suburban Transportation Corp.

● Stachniewicz v. Mar-Cam Corp.

(c) Licensing Statutes
(a) Impson v. Structual Metals, Inc.
(b) Statutory Rights
D) Proof of Negligence: Res Ipsa Loquitor
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 1) Restatement
2) Bryne v. Boadle
3) Lemprecht v. Schluntz
4) Specific Acts of Negligence
5) Exclusive Control
(a) Ybarra v. Spangard
(b) Sullivan v. Crabtree
● ACTUAL CAUSATION
A) The But-For Cause of the Plaintiff’s Harm
1) Perkins v. Texas & N.O.R
2) Ford v. Trident Fisheries
3) Reynolds v. Texas & Pacific RY
4) Williams v. Utica College
5) Failure to Warn
B) Special Problems of Proof: Was the Defendant’s Conduct Capable of Causing the Plaintiff’s Harm
1) Kramer Services v. Wilkins
2) Improbable Consequences
3) Daubert: Expert Testimony\
(a) The Daubert Trilogy
(b) Rider v. Sandoz Pharmaceutical Corp.
4) Lost Opportunity
(a) Herkovitz v. Group Health Cooperative of Puget Sound
C) Two or More Negligent Actors
1) Invisible Harm
(a) Hill v. Edmonds
2) Joint and Several Liability
(a) Kingston v. Chicago & N.W. RY
D) When we can’t tell who Caused the Harm
1) Summers v. Tice
2) Sindell v. Abbott Laboratories

V. PROXIMATE CAUSATION
A) Liability Limited to Reasonably Foreseeable Consequences
1) Restatement
a) Marshall v. Nugent
b) Demers v. Rosa
2) Injury v. Manner of harm
3) What injury is defendant liable for? Thin Skull Rule
4) Negligence Per Se and Proximate Cause

B) Duty v. Proximate Cause

1) Palsgraff v. Long Island R.R>
2) Thompson v. Kaczinski
3) Hamilton v. Berreta Corp.
C) Superseding Causes

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INTENTIONAL TORTS
A) Defining Intent

Restatement, Torts 29, sec 13 comment (a) Character of actor’s intention :

In order that an act may be done with the intention of bringing about a harmful or offensive
contact or an apprehension thereof to a particular person, either the other or a third person,
the act must be done for the purpose of causing the contact or apprehension or with
knowledge on the part of the actor that such contact or apprehension is substantially certain
to be produced

Unless he realizes to a substantial certainty that the contact or apprehension will result, the
actor has not that intention which will be necessary

1) The intent required for battery is the intent to cause a contact with the person of another.
The actor need not intent to cause harm or offense to the other

(a) 1) desire, purpose or motive 2) knowledge to a substantial certainty of harmful or

offensive contact 3) knowledge to a substantial certainty that contact will take place
and the result turns out to be harmful or offensive

(b) Garratt v. Dailey: “A battery would have been established if, in addition to plaintiff’s
fall, it was proved that, when Brian moved the chair, he knew with substantial
certainty that the plaintiff would attempt to sit down where the chair had been”

(a) It is sufficient if Brian knows if a contact will take place and then that that contact
turns out to be offensive

(b) Subjective standard

(c) Ranson v. Kitner: NO mistake of Fact!! If you intended to make the contact you’re
responsible for the result
2) Transferred Intent: Imposes liability when a defendant has the intent to commit assault, battery, FI, trespass to
land, trespass to chattels and harm results to another person or property
(a) Talmage v. Smith: “the right of the plaintiff to recover was made to depend upon an intention on the part of
the defendant to hit somebody, and to inflict unwarranted injury upon someone else. Under these
circumstances, the fact that injury resulted to another than was intended does not relive the defendant from
responsibility”

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 B) Battery
Restatement sec 13: Battery: Harmful Contact
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 or a
third person, or an imminent apprehension of such a contact, and
Harmful contact with the person of the other directly or indirectly results

1) Harmful contact: harmful suggests physical impairment of condition of another’s body

(a) Creation of risk doesn’t turn something into an intentional tort (Garrett v. Dailey)
2) Contact: defendant need not actually touch the plaintiff; includes objects intimately associated with the
victim’s body (see Fisher v. Carrousel Motor Co.)

Sec 18. Battery: Offensive Contact

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 or a
third person, or an imminent apprehension of such a contact, and
Harmful contact with the person of the other directly or indirectly results
Sec 19: In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would
offend the ordinary person and as such as one not unduly sensitive as to his personal dignity. It must, therefore be a
contact which is unwarranted by the social usages prevalent at the time and place at which it was inflicted

3) Offensive Contact
(a) Where an actor knows another rejects contacts that others would tolerate, knowledge, rather than objective
standard governs liability
(b) Immediate awareness is not essential
(c) Brzoska v. Olsen: The fear of contracting a disease without exposure to a disease-causing agent is per se
unreasonable. Plaintiff’s can’t recover for the fear of contracting AIDS.
(d) Just to reiterate: the fear of something without it actually happening does not make it a tort (i.e. the fear of
eating something non-kosher without any actual proof of eating something non-kosher is not offensive)
C) Damages
1) Punitive Damages (in general): when a defendant’s conduct is particularly egregious
(a) When the defendant acts either with intent to harm or with willful or wanton disregard of whether harm will
occur
2) Respondeat Superior: an employer is generally liable for the tortious conduct of its employee that is acting
within the scope of employment
(a) When acting within scope of employment, employer generally liable for compensatory damages
(b) FOR PUNITIVE DAMAGES, an employer is liable when either:
(a) The principal authorized the doing and the manner of the act
(b) The agent was unfit and the principal was reckless in employing him
(c) The agent was employed in a managerial capacity and was acting within the scope of employment
(d) The employer or manager of the employer ratified or approved the act

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Restatement Sec 21: Assault
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 contact, and
The other is thereby put in imminent apprehension

D) Assault
1) Assault is a mental tort: you have to be aware of it when it takes place
2) The actor must either be intending the battery or to put you in apprehension of immediate bodily contact
(a) Elements: 1) intend to put in apprehension of contact 2) actually be put in apprehension of contact
(a) Intent ability
(b) Must act with the purpose to cause apprehension of a contact to a substantial certainty that apprehension
will result
● The intent to batter can suffice if the plaintiff was in fact put in apprehension

● Uses the same meanings of offensive contact

3) Apprehension requirement: perception or anticipation of a blow (see Western Union Telegraph co. v. Hill)
(a) Apprehension fear
(b) Mere words are not enough unless accompanied by some cooperative act or circumstance (see Western
Union Telegraph Co. v. Hill)
4) Imminence requirement: There will be no significant delay
(a) It is enough that one is so close to striking distance that he can reach another almost at once
5) Conditional Threats: there is liability for a conditional threat when the actor has no right to make the threat
(a) Still must be imminent: conditional threats about doing something in the future won’t do
E) False Imprisonment

Restatement Sec 35: False Imprisonment:

An actor is subject for 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 acts directly or indirectly results in such a confinement of the other and
The other is conscious of the confinement or is harmed by it

1) Confinement: The restraint may be by means of physical barriers or by threats of force which intimidate a
plaintiff into compliance. It is sufficient that he submits to an apprehension of force reasonably to be
understood from the defendant’s conduct although no force is used or expressly threatened
(a) A willful detention may be accomplished by violence, threats or any other means that restrains a person
from moving from place to place (see Grant v. Stop-n-Go Market of Texas)
2) Shopkeeper’s Privilege: a person who reasonably believes another person has stolen, or is attempting to steal
property, is privileged to detain that person in a reasonable manner and for a reasonable time to investigate the
ownership of the property
(a) Resendez test:
(a) 1) a reasonable belief a person has stolen or is attempting to steal
(b) detention for a reasonable time
(c) detention in a reasonable manner
3) New York Shopkeeper’s Defense of Lawful Detention
(a) A premises of a retail establishment for the purpose of investigation
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 (a) It shall be a defense that the person was detained in a reasonable manner and for not more than a
reasonable time to permit investigation
(b) Reasonable grounds to believe the person is guilty of a criminal possession
(c) Reasonable grounds include: 1) concealed possession of unpurchased merchandise 2) possession of an
item designed for the purpose of overcoming detection of security 3) recording device

Restatement Sec 46: Intentional Infliction of Emotional Distress

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

F) Intentional Infliction of Emotional Distress

1) The conduct alleged was intentional or reckless
(a) Reckless: requires that the defendant must know, or should have reason to know, the facts that create the
risk
(b) Had reason to know that there was a high risk that could cause injury and disregarded that risk
2) Outrageous Conduct
(a) So outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized community
3) Causation
(a) Conduct must have actually caused the plaintiff to suffer severe emotional distress
4) Extreme emotional Distress
(a) Where a reasonable person would be unable to adequately cope with the mental stress engendered by the
circumstances
5) Generally these are material issues of fact for the jury to decide
G) Trespass
1) Trespass to land
Restatement 158: Trespass to Land
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected
interest of the other if he intentionally
Enters land in the possession of the other, or causes a thing or third person to do so
Remains on the land, or
Fails to remove from the land a thing which he is under a duty to remove
(a) Intent: Purpose to cause intrusion on land or with a substantial certainty that she will cause it
(a) Transferred intent applies if you enter for another tort
(b) Mistake: an actor is liable for entry on property of another even if she believes it is their own (they had
the intent to walk there) (cc: Ranson v. Kitner)
● Risk of mistake is on the party who acts
(c) Rogers v. Kent County Board of Road Commissioners: Failure to remove the anchor stake upon
expiration of the license to have it on plaintiff’s land was a continuing trespass
(b) Damage is NOT an element
2) Trespass to Chattels
(a) Provides remedy for damages to person property or temporary interference
(b) Defendant pays only the value of the harm caused to the chattel
Restatement Sec. 217: Ways of Committing Trespass to Chattels
A trespass to chattels may be committed by intentionally
Dispossession another of the chattel, or
Using or intermeddling with a chattel in the possession of another
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Restatement Sec 218: Liability to Person in Possession
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel, if, but only if,
He dispossesses the other of chattel, or
The chattel is impaired as to its condition, quality, value or
 (c) Limits trespass to chattels to those which result in harm
(d) Intent: act with purpose of causing trespass or with substantial certainty trespass will result
(e) Must show INJURY from the trespass
(a) Intel Corp v. Hamidi: “the mere sending of electronic communications that assertedly cause injury only
because of their contents does not constitute an actionable trespass to a computer system through which
the messages are transmitted….the decisions finding electronic contact to be a trespass to computer
systems have generally involved some actual or threatened interference with the computer’s functioning”
(b) If trespass to chattels is found defendant is liable for diminished value of the chattel or the deprivation of
use
3) Conversion
(a) Provides remedy for a deprivation sufficiently serious that the tortfeasor is liable for the entire value of the
property
Restatement Sec 222: Conversion
Conversion is an intentional exercise of dominion and 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
In determining the seriousness of the interference and the justice of requiring the actor to
pay the full value, the following factors are important:
The extent and duration of the actor’s exercise of dominion and control ;
The actor’s intent to assert a right in fact inconsistent with the other’s right to
control
The actor’s good faith
The extent and duration of the resulting interference with the other’s right of
control
The harm done to the chattel
The inconvenience and expense caused to other
(b) If conversion is found defendant is liable for the entire value of the chattel at the time of conversion
H) Umbrella Intentional Tort
Restatement sec 5: Liability for Intentional Physical Harms
An actor who intentionally causes physical harm is subject to liability for that harm

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II) Privileges and Defenses
A) Privilege
1) One is privileged to act in a certain way when one owes no legal duty to refrain from acting a certain way
2) Privilege refers to conduct that would otherwise be prohibited but under the circumstances in permitted
3) Defendant bears the burden of producing proof to support the privilege/defense and convincing the trier of the
fact of its validity
B) Consent
1) One consents to the acts of another, or to the consequences of those acts if one is subjectively willing for that
conduct or those consequences to occur
(a) Volenti non fit injuria: to one who consents no harm is done
2) Privilege does not turn on actual consent: the defendant is privileged to make a contact where the plaintiff’s
words, gestures, or conduct reasonably manifest consent to it, even if she was not actually willing to be touched
3) O’Brien v. Cunard Steamship Co.: “the doctor was justified in his act, whatever her unexpressed feelings may
have been. In determining whether she consented, he could only be guided by her overt acts and the
manifestations of her feelings”
Restatement Sec 892: Meaning of Consent
Consent is willingness in fact for conduct to occur. It may be manifested by action or
inaction and need not be communicated to the actor
If words or conduct are reasonably understood by another to be intended as consent, they
constitute apparent consent and are effective as consent in fact

C) Implied Consent
1) Hackbart v. Cincinnati Bengals, Inc.
(a) Whether in a regular season professional football game an injury which is inflicted by one professional
football player on opposing player can give rise to liability in tort where the injury was inflicted by the
intentional striking of a blow during the game
(a) The ultimate contention here is whether Hackbart impliedly consented to the contact by means of
engaging in violent game
(b) The trial court: Def had inflicted an intentional blow which would ordinarily generate an civil liability and
which might bring about criminal sanction as well, but that since it has occurred in the course of a football
game, it should not be subject to restraint of law
(c) Appellate court reverses: “the notion is not correct that all reason has been abandoned, whereby the only
possible remedy for the person who has been the victim of an unlawful blow is retaliation…the trial court
did not limit the case to a trial of the evidence bearing on def’s liability but rather determined that as a
matter of social policy the game was so violent and unlawful that valid lines could not be drawn, we take the
view that this was not a proper issue for determination and that the plaintiff was entitled to have the case
tried on an assessment of his rights and whether they have been violated”
(d) The court remands the case on the fact issue of determining how much Hackbart consented to just by
playing the game
2) Christman v. Davis
(a) Consent to a particular conduct or substantially the same conduct bars recovery for battery
(a) A battery occurs only when a physician performs an operation for which there was no consent
(b) C consented to a more invasive surgery; agreed to have AT LEAST the flap done
(c) On the border between informed consent and battery
D) Consent Invalidated by Fraud
1) DeMay v. Roberts
(a) What does the defendant have to communicate to the plaintiff?
(a) “Plaintiff and her husband had a right to presume that a practicing physician would not take with him and
introduce into the house a young man in no way connected with the medical profession”
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 (b) The fact that the plaintiff consented to scattergood being there, supposing he was a physician, does not
preclude her from maintaining an action and recovering after finding out his true character
(c) Something more clear and certain as to his non-professional character would be required to put the
plaintiff and husband on guard
(b) Restatement: misrepresentation must be about something that affects the intrinsic nature and quality of the
invasion or harm. Misrepresentations about collateral facts will not invalidate consent
E) Consent Invalidated by Duress
1) Consent is not a defense if it was obtained by duress, or by an abuse of power, an in an abuse of power includes
sexual demands by employers or by others in a special position of power
2) When consent to a sexual act by a person in official custody or detained in a treatment facility, or other
institution, where the actor has supervisory authority, disciplinary control, or care over the detained person, the
jury must be instructed that it must consider all of the factors limiting the detained person’s ability to control
the situation or to give consent in deciding whether the detained person effectively consented (Grager v.
Schudar)
(a) Comparative fault: have to look at both the fault of the defendant and of the plaintiff
(b) Prisoner agreed to sexual contact with the guard but there is a statue designed to protect against duress
(c) Whether or not we want consent to come in at all; can’t consent when the statute is to negate ability to
consent
F) Informed Consent
1) When does medical malpractice exist for lack of informed consent?
(a) Step 1: What does the doctor have to tell the patient?
(a) Either (depending on state):
● What a reasonable person would want to know
♦ Accepted by Scott v. Bradford

● What a reason doctor would tell you (what reasonable doctors tell their patients)
♦ New York rule but rejected by Scott v. Bradford
(b) Exceptions:
● doesn’t have to tell what ought to be known or already known risks

● full disclosure to the detriment of the plaintiff

(b) Step 2: Causation
(a) Canterbury v. Spence: would the information that you did not get but should have gotten have changed
the decision of a reasonable patient
● According to Scott v. Bradford, this undermines the reasonable patient decision and
undermines the autonomy of choice: REJECTED by Scott v. Bradford
(b) Subjective test as to whether the plaintiff would have gotten the surgery had they had known the
information they were supposed to have gotten
● Accepted by Scott v. Bradford
2) How much does a doctor have to tell a patient? Rice v. Brakel
(a) Liability for battery is limited to cases where the patient didn’t consent at all (Rice v. Brackel)
(a) For example when a patient consents to surgery on the right ear but the doctor performs surgery on the
left ear

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 ● Policy reasons: the court doesn’t want to create a tort without causation for doctors
♦ Battery doesn’t require a “reasonableness standard”
(b) Instead we’ll call it negligence
(a) Must prove causation
(b) Rice can’t prove that the doctor being high on drugs caused him harm so no recovery
G) Self Defense
Restatement Sec. 65 Self-Defense by Force Threatening Death or Serious Bodily Injury
Subject to the statement in Subsection (3), an actor is privileged to defend himself against
another by force intended or likely to cause death or serious bodily injury, when he reasonably
believes
The other is about to inflict upon him an intentional contact or other bodily
harm, and that
He is thereby put in peril of death or serious bodily harm or ravishment, which
can safey be prevented only by the immediate use of force
The privilege stated in Subsection (1) exists although the actor correctly or reasonably
believes that he can safely avoid the necessity of doing so by defending himself by
Retreating if he is attacked within his dwelling place, which is not also the
dwelling place of another
Permitting the other to intrude upon or dispossess him of his dwelling place
Abandoning an attempt to effect a lawful arrest
The privilege does not exist if the actor correctly or reasonably believes that he can with
complete safety avoid the necessity of defending himself by
Retreating if attacked in any place other than his dwelling place, or in a place
which is also the dwelling of another
Relinquishing the exercise of any right or privilege other than his privilege to
prevent intrusion upon or dispassion of his dwelling place or to effect a lawful arrest

1) Force threatening Death or Serious Bodily Injury

(a) Duty to retreat but castle doctrine
2) Hattori v. Peairs
(a) Peairs fear was not reasonable
(b) It was neither reasonable or necessary for Peairs to resort to deadly force in order to protect himself or his
family
(c) Peair’s mistake of the camera for a gun is no defense
Restatement Sec. 63: Self-Defense by Force Not Threatening Death or Serious Bodily Harm
An actor is privileged to use reasonable force, not intended or likely to cause death or
serious bodily harm, to defend himself against unprivileged harmful or offensive contact or
other bdily harm which he reasonably believes is about to be inflicted upon him
Self-Defense is privileged under the conditions stated in Subsection (1), although the actor
correctly, or reasonably believes that he can avoid the necessity of defending himself,
By retreating or otherwise giving up a right or privilege
By complying with a command with which the actor is under no duty to
comply or which the other is not privileged to enforce by means of force
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 3) Generally the right to self defense is lost if the actor provokes the attack
(a) “ a defendant who is the initial aggressor, can lose the right to claim self-defense, unless the defendant
abandons the fight and gives notice to his adversary that he has done so” Root v. Saul
4) Defense of others
(a) In general the privilege is the same ; the intervening actor is privileged to the same extent that the other
who is being threatened by the third person would be privileged to defend himself
(b) Mistakes?
(a) Some courts: privilege to act based on reasonable perception; if it reasonably appears to the actor that
the one party is the aggressor he may defend even if he is wrong
(b) Other courts: only privileged to defend if that person was actually privileged to defend themselves; the
actor acts at his own risk
5) Defense of Property
(a) Prosser on Torts: The law has always placed a higher value upon human safety than upon mere rights in
property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious
bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s
personal safety as to justify self defense. Springs guns and other man killing devices are not justifiable
against a mere trespasser.
(a) Katko v. Briney
(b) Self Help: Privilege to use reasonable force to regain a chattel tortuously taken by another so long as the
rightful possessor acted promptly in “hot pursuit”
(a) Limits:
● Must act promptly; once sense of immediacy is lost, so is privilege

● Reasonable force
H) Necessity
1) Vincent v. Lake Erie Transportation Co.
(a) On appeal, the state supreme court affirmed, reasoning the damage to plaintiffs' wharf was not caused by an
act of God, which would have excused defendant's liability, but was an injury caused by the defendant's
prudent intention to use plaintiffs' property for the purpose of preserving its own more valuable property,
and the plaintiffs, therefore, were entitled to compensation for the injury done
(b) because where injury was inflicted because defendant prudently and advisedly availed itself of the plaintiff's
property for the purpose of preserving its own more valuable property, the plaintiffs were entitled to
compensation for the injury done.
I) Umbrella Justification
1) Sindle v. New York City Transit Authority
(a) A bus driver has the duty to take responsible measures for the safety and protection of passengers and
property. In this regard the reasonableness of his actions, as bearing on the defense of justification is to be
determined from a consideration of all the circumstances
(a) How do you limit this???
(b) Is this similar to Ranson v. Kitner?
● NO: this is an affirmative where someone was under attack?

III) NEGLIGENCE: THE DUTY OF CARE

A) Elements of Prima Facie Negligence Claim
1) Duty: Members in a society owe a duty to act reasonably to avoid causing physical harm to each other\
(a) NO DUTY TO RESCUE
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 2) Breach of Duty: Once a duty has been established, the plaintiff must establish that the defendant failed to act
reasonably
(a) Fact finder must: decide what constitutes reasonable care under the circumstances and then find that the
defendant failed to meet that standard
(b) HERE is where the STANDARD OF CARE is determined
(c) For this element we look at what the standard of care is and if the defendant breached this standard
(d) Breach of duty=negligence
3) Cause-in-Fact: plaintiff must prove a connection between the defendant’s negligent conduct and the harm
suffered
4) Proximate Causation
5) Harm: It is necessary for the plaintiff to suffer actual, tangible harm
B) Negligence Balancing

1) In general, whether under a certain set of circumstances conduct is negligent is for the trier of facts
(a) Must often the jury decides whether the defendant’s conduct was unreasonable and hence negligent but
where the trial judge concludes that reasonable persons cannot differ, the judge decides that negligence has
not been or cannot be established
(a) “It could hardly be good sense to hold that this golf club is so obviously and intrinsically dangerous that
it is negligent to leave it lying on the ground in the yard. The demurrer is sustained” –Lubitz v. Wells
Restatement sec. 3 Negligence:
A person acts negligently if the person does not exercise reasonable care under all circumstances. Primary factors to
consider in ascertaining whether the person’s conduct lacks reasonable care are foreseeable likelihood that the person’s
conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to
eliminate or reduce the risk of harm
2) The Hand Test
(a) Liability if: Burden of taking adequate precautions < Probability of harm x L gravity of injury
(a) See U.S. v. Carroll Towing
(b) “When the possibility of escape multiplied times the gravity of harm, ifit happens, exceeds the burden of
precautions, the risk is unreasonable and the failure to take precautions is negligence” –Washington v.
Louisiana Power & Light Co.
(a) Although there was a cognizable risk that the antenna stationed in the corner of Washington’s backyard
could be lower and moved within a dangerous proximity of the powerline, that the possibility could not
have been characterized as an unreasonable risk and the power company’s failure to take additional
precautions against it was not negligence
(b) When the degree of gravity of loss is multiplied by the very small probability of accident occurring, the
product does not outweigh the burdens or costs of precautions or relocating the power line
Restatement Sec. 291: Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct
Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is
unreasonable and the act is negligent if the risk is of such a magnitude as to outweigh what the law regards as the
utility of the act or of the particular manner in which it is done

(c) Where an actor has inadequate data about either the probability or the gravity of a bad result, the question
then becomes whether a reasonable person should have invested more resources to learn about potential
risks before acting
(a) Whether defendant “knew or should have known” about a given risk
(d) Courts only used Hand formula to decide whether to direct a verdict
C) The Standard of Care of a Reasonable Person
1) What a reasonable person knew or should have known
15
 (a) The reasonable person decides whether a course of action is appropriate by considering the foreseeable risks
of injury that the conduct will impose on the community. The reasonable person also considers the
likelihood of a risk actually causing harm
(a) The P in B<PL
(b) The reasonable person also considers the extent of the risks posed by her conduct
(a) The L in B<PL
(c) The reasonable person also considers whether alternatives to proposed conduct would achieve the same
purpose with lesser or greater risk
(d) The reasonable person takes precautions if B< PL
(e) “Knew” is what the defendant actually knew at the time
(f) The standard of care for what a defendant should have known involves 2 balancing tests:
(a) First determine the risks that the defendant knew about (B<PL)
(b) Then to determine what they should have known: What reasonable steps should you take to find out
● This involves a second balancing test: there are costs in getting info

● Begs the question shat should a defendant invest in getting info

(g) See Vaughn v. Menlove
(a) Menlove argued that he exercised judgment to the best of his ability and shouldn’t be held liable because
his best wasn’t good enough
(b) Court sticks to reasonable person under the circumstances test and thereby provide an objective test
2) Knowledge
(a) “It is readily apparent that ordinary care, insofar as young children are concerned, involves the exercise of
greater care. As a result, Mrs. Jackson is chard with knowing that teenagers are particularly prone to careless
and reckless behavior” –Brewer v. Murray
Restatement sec. 12 Knowledge and Skill
If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are
circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person

(b) Where a defendant holds herself out to have expertise and another relies on such representation, there is no
question that she is held to the general knowledge and skill of that field of expertise
3) Emergency
(a) “If under normal circumstances an act is done which might be considered negligent it does nto follow as a
corollary that a similar act is negligent if performed by a person acting under an emergency, not of his own
making, in which he suddenly is faced with patent danger with a moment left to adopt a means of
extrication” –Cordas v. Peerless Transportation Co.
(b) Emergencies make the B SOOOO high. Emergencies also change the probability because the actor doesn’t
have the time to gather data
(c) You still must act reasonably under the circumstances
(d) A majority of jurisdictions favor telling a jury they are to take into account that the actor was faced with an
emergency, rather than a minority of jurisdictions which tell the jury to consider whether the defendant
acted reasonably under the circumstances
(e) Getting it wrong: Even in a emergency, the actor is still held to the same standard to act reasonably. The
conduct that is considered reasonable may differ but the standard is the same
4) Custom
(a) Custom gives us information about the probability of harm (P in B<PL). It also gives the answer to the
B<PL question
(b) The black letter rule is that custom is relevant it does not require a finding that the actor was negligent.
However, it is unlikely that a jury will find in favor of a defendant who violated custom

16
 (c) “When proof of an accepted practice is accompanied by evidence that the defendant conformed, it may
establish due care…and, contrariwise, when proof of a customary practice is coupled with a showing that it
was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability”
–Trimarco v. Klein
(a) Here there’s no custom of automatic door replacement.
(b) If you replace one door you have to replace all of them. This may make B way greater than P(L)
(d) Where an actor conforms to custom, the rule is the same- it is relevant but not binding
(a) Sometimes custom and reasonableness diverge. Sometimes a practice continues long after it ought to
have stopped
5) Physical and Mental attributes
(a) Physical Attributes
(i) NO NEW STANDARD: Reasonable Under the Circumstances
(b) “handicapped individual must be reasonable in the light of his knowledge of his infirmity, which is
treated merely as one of the circumstances under which he acts. He must take precautions that an
ordinary person would take if her were blind” – Roberts v. State of Louisiana
(c) Does the handicapped person have to be more careful, yes! But they do not need to be more reasonable
(d) Sooo.. have to see if Roberts acted reasonably for a blind person. Prob. Of harm is low because of his
sensory perception, having to use a cane makes the B SOOO high
(e) Mental Incapacity
(a) The law does not take mental illness into account
(b) Reasons:
● Between 2 innocent parties, the loss should be allocated to the one who occasioned the loss

● Imposition of liability provides those responsible for mentally ill to prevent them by
restraining those who are potentially dangerous
● To allow mental capacity defense might induce tortfeasor to fake mental incapacity

● To allow the defense would require to draw a line between mental illness and other
personality traits
● Liability rules requires mentally ill to pay for damage they cause

(f) Children
Restatement sec. 10 Children
A child’s conduct is negligent if it does not conform to that of a reasonably careful person of
the same age, intelligence, and experience except:
A child less than 5 years of age is incapable of negligence
The rule does not apply when the child is engaging in a dangerous activity that is
characteristically undertake by adults
(a) Under Restatement approach if there is a child above the age of 14, there is a rebuttal presumption that
the child is able to meet the adult reasonableness standard
(b) Between ages 7 and 14, the presumption is that the child is incapable of meeting the adult standard
(c) Below 7, the child cannot be found negligent
(d) Stevens v. Veenstra
● When the probability of, or potential harm, associated with a particular activity is great,
anyone engaged in the activity must be held to a certain minimum level of competence, even
though that level may lie beyond the bounds of a beginner

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 ● Long standard of holding drivers to the same standard of care; a minor who engages in an
adult activity that is dangerous is charged with the same standard of care as an adult
5) Professional
(a) NO NEW STANDARD: Standard of the profession but still reasonable under the circumstances
(b) No “should have known”; a professional has an obligation to acquire knowledge
(c) If a professional is charged with 2 reasonable choices, they are not liable if they make the wrong one
(d) Medical Malpractice: the medical custom is binding
(a) The doctor must violate the recognized standard of good medical practice in the community in which he
is practicing
(b) Helling v. Carey
● What is usually done is evidenced by what ought to be done, but what ought to be done is
fixed by the standard of a reasonable prudence whether it is usually complied with or not
● The court denies the medical custom and creates its own rule
6) Judicially Determined Standards of Care
(a) Utility Balancing as a matter of law
(a) Using the Hand Formula, if a judge determines that reasonable minds could not different then they rule in
a directed verdict, and in doing such, set the standard of care
(b) “The risk utility factors here confirm that the Super Hopper trailer was not negligently designed as a
matter of law. Timpte warned users to always maintain a 3-point contact with the trailer. Had Gish had
adhered to the warning he would not have fallen” –Timpte Industries v. Gish
7) Statute Determined Standard of Care: Negligence Per Se
Restatement sec. 14 Statutory Violations as Negligence Per Se
An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of
accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to
protect

(a) The judge imports the statutory standard as the minimum standard of care
(b) The party who falls below the statutory standard of reasonable care is negligent per se. The issue of what is
reasonable is NOT for the jury to decide
(c) Rationale:
(a) Would be awkward for tort court to say action reasonable when legislature has said it isn’t
(b) We already know what the community thinks is reasonable
(c) Repeat players; important to give effect to a legislative standard
(d) Martin v. Herzog
(a) “By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law
for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of
diligence to which those who live in organized society are under a duty to conform”
(b) Cardozo says that the legislature has said what the standard of care is so it doesn’t matter how much the
plaintiff says he was reasonable. The legislature sets the standard of care so Cardozo directs a verdict on
standard of care
(e) 3 ways of negligence per se:
(a) Violation of statute as evidence of negligence
● Tell the jury about the statute and let them take the statute into account
(b) Violation of the statute creates a presumption of negligence
● This shifts the burden of coming forward to the defendant. Defendant must rebut the
presumption
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 ● The defendant must come forward with sufficient evidence that they were acting reasonably

● If they fail to do this, the judge will enter a verdict for the plaintiff
(c) Negligence Per se: Unless the defendant has some justifiable excuse, the judge will direct a verdict for
the plaintiff
● See Martin v. Herzog
(f) When does the statue count?
(a) For a statute to be used to direct a verdict, the statute must speak to a standard of care

(b) “We can perceive no legislative purpose in such a statute to protect passengers in a public conveyance
such as a defendant’s bus from hazard other than arising from a collision between moving vehicle and the
stopped bus. Not every violation of the statute constitutes negligence per se” –Reque v. Milwaukee &
Suburban Transportation Corp.
● The hazard has to be the one that the legislature intended to protect against and whether the
victim is within the class of persons the statute is designed to protect
(c) What happens when the judge refuses to use the statute to set the standard of care?
● “Find it reasonable to assume that the commission, in promulgating the regulation, intended to
prevent these abuses and that they had in mind safety of patrons of bars as well as general
peace…unless we are prepared to say that an alcoholic drink given after visible intoxication is
the cause of a 3rd party’s injuries as a matter of law, the standard would be one almost
impossible of application by a factfinder in most circumstances” –Stachniewicz v. Mar-Cam
Corp.

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 ● The court here is saying that the standard of care set by the statute is no good and unworkable.
There is no way you can prove causation. This is a crappy standard for a lot of tort cases
(g) Excuses?
(a) “The driver made his move deliberately, with knowledge of the law and with at least notice of the
presence of the highway intersection. There was no impossibility, no reason for any particular hurry, no
emergency, and no incapacity. The problem of greater risk of harm is not involved. If there was an
emergency, it was only after the statutory violation had begun , and was die in large part to his own
deliberate conduct” –Impson v. Structual Metals Inc.
(b) Restatement excusable situations:
● The violation is reasonable because of the actor’s incapacity;

● He neither knows nor should know of the occasion for compliance;

● He is unable after reasonable diligence or care to comply;

● He is confronted by an emergency not due to his own misconduct;

● Compliance would involve a greater risk of harm to the actor or to others

● See page 202 for examples!!!!

(h) Complying with Statute
(a) You still have to act reasonably!!
(b) Compliance with statute is relevant but not binding
(i) In summation:
(a) If there is no violation of a statute you can still have a question of whether the conduct was reasonable
under common law negligence
(b) Strengths: the statute is the legislative will
(c) Weakness: negligence cases are fact sensitive and the statute cannot always govern the negligence
● The statute is a generalization but negligence is fact sensitive

● The statute cannot speak to a multitude of facts

D) Proof of Negligence: Res Ipsa Loquitor
1) In res ipsa cases we have nothing more than a generalization. We admit we don’t know what went wrong but
we are willing to conclude that whatever went wrong was more likely than not the result of negligence
(a) “There must be reasonable evidence of negligence. But where the thing is shown to be under the
management of the defendant or his servants, and the accident is such as in the ordinary course of things
does not happen if those who have the management use proper care, it affords reasonable evidence, in the
absence of explanation by the defendants, that the accident arose from want of care” –Byrne v. Broadle
2) The jury may use circumstantial evidence
Restatement sec 17 Res Ipsa Loquitor
The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff’s physical harm
is a type of accident that ordinarily happens as a result of negligence of a class or actors of which the defendant is a
relevant actor
3) Elements of Res Ipsa:
(a) The occurrence of a type that does not ordinarily happen unless someone was negligent
(a) More probable than not is the standard
(b) The instrumentality that cause the injury must have been within the defendant’s exclusive control
(a) New Restatement: fact finder may infer who is a relevant member
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 (b) More likely than not who is the defendant
(c) The injury must not be caused by the plaintiff
4) Lemprecht v. Schluntz
(a) “The mere occurrence of a fire, with resultant damage, does not raise a presumption of negligence,
although the circumstances under which a fire occurs may sometimes be such as to justify the application
of the doctrine of res ipsa loquitor and impose upon the defendant the burden of proving this freedom from
fault….”
(a) Failed to prove first element🡪 it’s not clear that the fire was a result of the negligence of the defendant
● No evidence that the most reasonable explanation that this was the result of negligence

● Mere occurrence of a fire does not raise a presumption of negligence

● None of the explanations point to negligence

5) Specific Acts of Negligence
Prosser and Keeton on Torts
Plaintiff is . . . bound by his own evidence; but proof of some specific facts does not necessarily exclude inferences of
others. When the plaintiff shows that the railway car in which he was a passenger was derailed, there is an inference
that the defendant railroad has somehow been negligent. When the plaintiff goes further and shows that the derailment
was caused by an open switch, the plaintiff destroys any inference of other causes; but the inference that the defendant
has not used proper care in looking after its switches is not destroyed, but considerably strengthened. If the plaintiff
goes further still and shows that the switch was left open by a drunken switchman on duty, there is nothing left to infer;
and if the plaintiff shows that the switch was thrown by an escaped convict with a grudge against the railroad, the
plaintiff has proven himself out of court. It is only in this sense that when the facts are known there is no inference, and
res ipsa loquitur simply vanishes from the case. On the basis of reasoning such as this, it is quite generally agreed that
the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but
which does not purport to furnish a full and complete explanation of the occurrence, does not destroy the inferences
which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur.

6) Who done the negligence?

(a) An inference of negligence is proper when the accident causing the harm ordinarily happens because of
the negligence of the class of actors of which the defendant is a relevant actor
(b) Ybarra v. Spangard
(a) Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment,
all of those defendants who had any control over his body or the instrumentalities which might have
caused the injuries may properly be called upon to meet the inference of negligence
(b) There was clear evidence of negligence but the evidence is that there ware so many defendants that its
hard to say that anyone was in exclusive control
(c) Burden of coming forward: must come forward with an explanation for why you were not negligent
● Puts burden of initial explanation on the defendant

● Creates a presumption of negligence

7) 3 ways to show Res Ipsa
(a) Presumption of negligence (See Ybarra v. Spangard)
(b) Res Ipsa as evidence of negligene
(a) “We do not agree that the facts, though unexplained, required an inference of finding of negligence, or
that the jury could not reasonably refuse to find negligence and return a verdict for defendant, or that
there was no evidence to support a verdict for him…res ipsa merely makes a case for the jury-merely
permits the jury to chose the inference of defendant’s negligence in preference to other permissible
reasonable inferences” –Sullivan v. Crabtree
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 (c) Summary Judgment?

IV) ACTUAL CAUSATION

A) The But-For Cause
1) But for the negligence, would the injury have happened anyway
2) Partial fact question which goes to the jury
3) Burden of proof of causation on the plaintiff
(a) “the plaintiff has failed to discharge the burden of proving the negligence of the defendant was a cause in
fact of the tragic death” –Perkins v. Texas & N.O.R
(b) “Even if it be assumed that upon these facts the defendant was negligent, there is nothing to show they in
any way contributed to ford’s death” –Ford v. Trident Fisheries Inc.
(c) “Where the negligent of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a
character naturally leading to its occurrence, the mere possibility that it might have happened without
negligence is not sufficient to break the chain of cause and effect between the negligence and the injury” –
Reynolds v. Texas & Pacific RY.
(a) Not enough to say the conduct is not the cause of the harm
(b) The negligence here is to protect the Reynolds of the world. She was entitled to have lights
(c) When we think of reasons for having lights, the first thing we think of is to protect people from tripping
(d) The negligence was in failing to protect against the very thing it should have been there for
(d) The more egregious the fault, the more likely a court is to let a case with thin evidence of causation to go to
the jury
(e) Where the defendant breached the duty that was designed to protect against the very type of risk which the
plaintiff was exposed to (Reynolds) the courts will be more inclined to let a think causation case go to the
jury
(f) The formal standard provides that plaintiff must establish that “more probably than not” the defendant’s
negligence was the but-for cause of harm
B) Special Problems of Proof: Was the defendant’s Conduct Capable of Causing Plaintiff’s Harm?
1) Did the conduct cause the harm (not negligence)
2) “Post hoc ergo propter is not sound as evidence or argument. Nor is it sufficient for a plaintiff seeking recovery
for alleged negligence. Possibilities will not sustain a verdict” –Kramer Services, Inc. v. Wilkins
(a) Post hoc ergo propter: proof that a past event possibly happen or that certain result was possibly caused
by past event
C) Daubert and Expert Testimony
1) Daubert v. Merrell Dow Pharmaceuticals, Inc. : “Faced with a proffer of expert scientific testimony . . . the
trial judge must make a preliminary assessment of whether the testimony's underlying reasoning or
methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will
bear on the inquiry, including whether the theory or technique in question can be (had has been) tested,
whether it has been subjected to peer review and publication, its known or potential error rate, the existence
and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance
within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles
and methodology, not on the conclusions that they generate. Throughout, the judge should also be mindful of
other applicable Rules . . . . [C]ross examination, presentation, presentation of contrary evidence, and careful
instruction on the burden of proof, rather than wholesale exclusion under an uncompromising “general
acceptance” standard, is the appropriate means by which evidence based on valid principles may be
challenged.”
(a) For anytime you have evidence that you need an expert testimony based on science
(b) Focus on methodology: must be 1) tested 2) peer review 3) risk of error 4) general acceptance

22
 (c) Puts standard in the hands of judges
(a) Before trial there is Daubert hearing to see for causation
● General causation🡪 could the drug be possible of causing injury. Have to prove the conduct
caused the harm
● Specific causation🡪 could the drug have caused this injury
(b) Test for overruling: did the judge abuse their discretion?
(d) Rider v. Sandoz Pharmaceutical Corp.
(a) The district court did not abuse its discretion in concluding that the plaintiff’s scientific proof of
causation is legally unreliable and inadmissible under standard set by Daubert trilogy
(b) Gaps in evidence: 1) plaintiff’s offer insufficient evidence to suggest bromocriptine caused
vasoconstriction (just because some ergot alkaloids cause vasoconstriction doesn’t mean they all do)
(c) Necessary for plaintiff to offer some rationale for the suggestion that vascular structures of humans and
animals are sufficiently similar
(d) The evidence that Parlodel may cause ischemic stroke does not apply to situations involving hemorrhagic
strokes
2) What about the case for informed consent?
(a) Can’t prove causation so the plaintiff would still lose on this
3) Herskovitz v. Group Health Corporation of Puget Sound
(a) If we use the more probable than not test, the plaintiff will lose- you can’t ask more probably than not that
the person wouldn’t have died because he was going to die anyway
(b) “Once plaintiff has demonstrated that the defendant’s acts or omissions have increased the risk of harm to
another, such evidence furnishes a basis for the jury to make a determination as to whether such increased
risk was in turn a substantial factor in bringing about the resultant harm”
(a) the court protects the loss chance
(b) here the lost chance was a statistic so this is different than in Perkins
(c) limited to malpractice
(c) Damages? Reduce damages by percent of loss chance
D) When 2 or more Negligent Actors Concurrently cause the Plaintiff’s Harm
1) IT IS NO DEFENSE TO YOUR BUT-FOR NEGLIGENCE THAT THERE IS ANOTHER BUT FOR
CAUSE OF NEGLIGENCE
(a) You are joint tortfeasors
2) Invisible Harm: Negligent conduct of either defendant would not, without the other, have caused the accident
3) “Where two separate acts of negligence combine to produce directly a single injury each tortfeasor is
responsible for the entire result, even though his act alone might not have caused it” –Hill v. Edmonds
4) Joint and Several Liability: defendants who are severally liable are each liable in full for the plaintiff’s
damages, although the plaintiff is only entitled to one recovery
(a) Act in concert: drag racing
(b) Vicarious liability: all negligent actors will be responsible for the harm actually caused by one of them
5) Kingston v. Chicago & N.W. RY.
(a) Where two causes, each attributable to the negligence of a responsible person, concur in producing an
injury, and either cause would produce it regardless of the other, each person is liable for the entire damage
whether the concurrence be intentional, actual, or constructive, since each adopts the conduct of his co-
actor, and the damages cannot be apportioned
(b) It is settled in the law of negligence that any one of two or more joint tortfeasors, or one of two or more
wrongdoers whose concurring acts of negligence result in injury, are each individually responsible for the
entire damage resulting from their joint or concurrent acts of negligence. This rule also obtains "where two
causes, each attributable to the negligence of a responsible person, concur in producing an injury to
another, either of which causes would produce it regardless of the other, . . . because, whether the
23
 concurrence be intentional, actual, or constructive, each wrongdoer, in effect, adopts the conduct of his co-
actor, and for the further reason that it is impossible to apportion the damage or to say that either
perpetrated any distinct injury that can be separated fromthe whole. The whole loss must necessarily be
considered and treated as an entirety
(c) SPECIAL RULE: if multiple acts where each alone would have caused the harm then jointly liable
(a) Both parties saying they are not he but-for cause of the harm
(b) Causation has the be a substantial factor in causing the harm
(c) Restatement 27 solves this
Restatement sec 27 Multiples Sufficient Causes
If multiple acts occur, each of which under sec 26 alone would have been a factual cause of the physical harm at the
same time tin the absence of the other acts, each act is regarded as a factual cause of the harm

E) When one of the Several Negligent Actors Harmed the Plaintiff, but we can’t tell Which one
1) Summers v. Tice
(a) Since difficulty in proof, rule should apply whenever the harm has plural causes, and not merely when they
acted in conscious concert
(b) Burden of proof on defendant to absolve negligence, if not, they’re a joint tortfeasor
(c) Unlike Ybarra, this shift burden of PROOF to defendant not burden of coming forward
2) Sindlel v. Abbott Laboratories
(a) Where all defendants produced a drug from an identical formula and the manufacturers of the DES which
caused the plaintiff’s injuries cannot be identified through no fault of the plaintiff, a modification of the
Summers rule is warranted
(b) Reasonable in the present context to measure the likelihood that any of the defendants supplied the product
by the percentage which DES sold by each of them
(c) Each defendant is liable for the proportion of the judgment represented by its share of the market unless it
can demonstrate that it could not have made the product which caused the plaintiff’s injures??? ASK

V) PROXIMATE CAUSATION
● The idea that negligent conduct is not unbounded; limits on the scope of liability for negligence

● Proximate causation is the second necessary link in the chain of causation

● Unless actual cause is found, it is unnecessary to look at proximate cause. For this reason, proximate cause is
often described as legal cause
● But for excludes some cases we don want but will let through some that we still don’t want

● Negligence creates a bundle of risks. Is the harm to the plaintiff on the worry list?

A) Liability Limited to Reasonably Foreseeable Consequences

1) Restatement
§29. Limitations on Liability for Tortious Conduct
An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious
(a) Comment d: harms different than the harms risked by tortious conduct

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 (a) The term scope of liability is used to distinguish those harms that fall within this standard and, thus, for
which the defendant is subject to liability
(b) Requires consideration of 1) the risks that made the actor’s conduct tortious and 2) whether the harm
for which recovery is sought was a results of those risks
(c) The jury should be told that, in deciding whether plaintiff’s harm is within the scope of liability, it
should go back to the reasons for finding the defendant engaged in negligent or other tortious conduct.
If the harm risked by that tortious conduct include the general sort of harm suffered by the plaintiff, the
defendant is subject to liability for the plaintiff’s harm
(b) NOT asking the negligence question again, instead we go back to the negligence and see if the risk of the
harm when are negligent
(c) Virtue in scope of liability approach is that it provides analytical basis for consistent decision making
(d) Marshall v. Nugent
(a) Marshall was driving down the highway with Harriman. Prince was driving an oil truck and drove into
Harriman’s land; Harriman came to a stop on the side of the road. Prince stopped his truck, blocking
the land of traffic and suggested Marshall walk up the hill to warn other drivers. While walking,
Nugent went to swerve out of the way of Prince’s truck and hit Marshall. Marshall files a complaint
alleging Prince and Nugent are joint tortfeasors. Nugent argues that if Prince were found to have been
negligent in cutting the corner on the wrong side of the road, and thus forcing Harriman off the road,
Marshall suffered no harm from this, and such negligent conduct, was not the proximate cause of
Marshall’s injuries
(b) “The district court committed no error in refusing to direct a verdict for the defendant Socony on the
issue of proximate cause”
● the plaintiff who was a passenger, had already been subjected to a collision risk by the
negligent operation of the Socony truck, could reasonably be expected to get out onto the
highway wand lend a hand to his host in getting the car started again… the injury Marshall
received was not remote, either in time or place, from the negligent conduct of the defendant
Socony”
(c) Proximate cause confines liability of a negligent actor to those harmful consequences which result from
the operation of the risk, or of a risk, the foreseeability of which rendered the defendant’s conduct
negligent.
(d) We leave it to the jury with appropriate instructions🡪 question of fact for the jury
(e) Demers v. Rosa
(a) Police called to collect a roaming dog. Apparently this dog had gotten out before The plaintiff and a
different police officer drive to the residence. The officers collect the dog and put in the back of the
other officer’s car. Demers then leans into the other officer’s car to chat. When Demers goes to walk
back to his own car, he slips on some ice and injures his back.
(b) “the harm that befell the plaintiff was not reasonably foreseeable as a matter of law. When examining
the scope of risk created by the defendant’s negligence, one could easily foresee the possibility that a
police officer could slip while in the midst of catching a roaming dog. Here however, the plaintiff fell
because of the ice and snow on the driveway and not by virtue of the dog’s roaming free or even the
dog’s presence at the scene of the accident…The general foreseeability of a weather related incident
does not, by itself, make this particular accident foreseeable. If we accepted this argument, the lens of
foreseeability could be expanded to encompass generally any type of harm”
2) What Injury is Defendant Liable For? –The Thin Skull Rule
(a) Take your plaintiff as you get them
(b) It doesn’t matter who the plaintiff is—the defendant is liable for all of the injuries that they cause. This is
not unreasonable because you never have predictions of who you can hit
(c) American courts unanimously recognize the thin skull rule when the unexpected consequence occurs
systematically, within the plaintiff’s body, as a result of a physical injury to the plaintiff’s person
25
 (d) McCahill v. New York Transportation Co.
(a) A taxicab hit McCahill who was throw and knocked unconscious with a broken knee and thighs.
MaCahill was taken to the hospital where he developed delirium tremens that the physician says were
precipitated by the injury (injury to leg hurried up delirium tremens) . Then he died. Defendant says it
should not be liable for death because delirium tremens could have come from alcoholism.
(b) “One who negligently forwarded a diseased condition and thereby hastened and prematurely caused
death cannot escape responsibility even though the disease probably would have resulted in death at a
later time without his agency”
(e) Thin Skull and property interests?
(a) Should the rule apply when the injury takes the form of property damage rather than personal injury?
(b) Overseas Tankship Ltd. v. Morts Dock: “Liability depends on reasonable foreseeability of consequent
damage, how is that to be determined except by the foreseeability of the damage which had in fact
happened. And if the damge is unforeseeable so as to displace liability at large, how can the liability be
restored so as to make compensation payable?”
● Seems to be returning to a Marshall-esqe rule
3) Injury v. Manner of Injury
(a) Courts do not require that the details of HOW the defendant’s negligence works out to another injury to be
foreseeable
(b) Buffalo River Fiasco: a barge broke loose and drifted downstream. The barge broke a second vessel loose
and the two rammed a drawbridge and knocked it down. The two barges became stuck end to end,
collecting large chunks of fallen debris and subsequently damming the river.
(a) “the risk of the lesser harm was sufficient to render his disregard of its actionable; the existence of a
less likely additional risk that the very forces against whose action was required to guard would
produce other and greater damage than could have been reasonably anticipated should inculpate him
further rather than limit his liability”
(b) If the only thing that isn’t foreseeable is the manner of the harm, the judge will almost never direct a
verdict
● If who and what are foreseeable, judge will not direct a verdict on how
(c) See also Watson v. Kentucky & Indiana Bridge & R. Co.
4) Negligence Per Se and Proximate Cause
(a) Damage complained has to be part of the object of the statute
B) Duty or Proximate Cause????????
1) Palsgraf v. Long Island R.R.
(a) Defendant’s conductors were negligent in assisting a rusing passenger onto a moving train, causing him to
drop a package. Although there was no reason for the conductors to suspect it, the package contained
firecrackers, which exploded, overturning some scales a distance away on the train platform. The scales
fell and injured Mrs. Palsgraf. The railroad argued that their negligence only posed a foreseeable risk of
injury to the passenger or his package.
(b) Cordozo: the duty to avoid injuring others extends only to those risks the actor should anticipate from her
negligent act. Here the unreasonable risk created by the conductors’ conduct was that the passenger or his
package would be injured. Since the conductors would not have anticipated injury to Mrs. Palsgraf from
their conduct, they owed no duty to avoid the injury and were not negligent in relation to her. Since Mrs.
Palsgraf was an unforeseeable plaintiff to whom no unreasonable risk was to be anticipated, Mrs. Palsgraf
was denied recovery
(c) Cordozo: “the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relations; if
is risk to another or to others within the range of apprehension…the range of reasonable apprehension is at
times a question for the court, and at times, if varying inferences are possible, a question for the jury
(d) Duty= matter of law for the court; Proximate cause: jury issue
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 (a) THE DIFFERENCE IS WHETHER OR NOT THERE IS A JURY ISSUE
(e) Twerski on Palsgraf:
(a) What is the railroad’s duty? Not to be negligent; no B<PL for Mrs. P because the foreseeability is SO
low
(b) The question to ask is if you were negligent NOT if were negligent to Mrs. Palsgraf🡪 we do B<PL on
CONDUCT
(c) Cardozo: what is the negligence? Any negligence Cardozo could think of Mrs. P would not be in the
scope of risk for
● Twerski: WRONG. Cardozo says outside the scope of the risk but he calls it duty (Cardozo is
trying to keep a tight control of tort law; if he called it proximate cause it would become a
jury issue)
(f) Andrew DISSENT: DUTY is for a category of cases NOT foreseeability
2) Thompson v. Kaczinski
(a) Kaczinski disassembled a trampoline and placed the parts in their yard. They did not secure them. They
meant to do something with them but they left them there for multiple months. During a severe
thunderstorm the trampoline parts blew into the road. Thompson was driving down the road and had to
swerve to avoid the trampoline in the road. He loses control of the vehicle and is injured. The trial court
orders summary judgment for the Kaczinkis finding that they did not have a duty to Thompson because the
injury was unforeseeable
(b) “In most cases involving physical harm, courts need not concern themselves withteh existence or content
of this ordinary duty, but instead may proceed directly to the elements of liability. The general duty of
reasonable care will apply in most cases, and thus courts need not refer to duty on a case by case basis.
However, in exceptional cases, the general duty may be displaced. An exceptional case is one which an
articulated countervailing principal or policy warrants denying or limiting liability in a particular class of
cases. The ruling should be explained and justified based on articulated policies or principals that justify
exempting actors for liability”
(c) Scope of liability issue is fact intensive as it requires consideration of the risks that made the actor’s
conduct tortious and a determination of whether the harm at issue is a result of those risks
(d) “The question of whether a serious injury to a motorist was within the rang of harms risked by
disassembling the trampoline and leaving it untethered for a few weeks on the yard less than 40 ft from the
road is not so clear as to justify summary judgment”
(e) Foreseeability belongs either in standard of care or proximate cause BUT NOT in duty
(f) Duty requires a determination of policy considerations for why a class of cases for why there should be no
duty NOT of facts of individual cases
3) Hamilton v. Beretta U.S.A Corp.
(a) Relatives of people killed by handguns sue 49 handgun manufacturers. Plaintiffs asserted that the
defendants distributed their products negligently soa s to crate and bolster an illegal, underground market
for handguns, one that furnished weapons to minors and criminals involved in the shooting of plaintiff’s
family members. Plaintiffs assert that gun manufacturers have oversaturated markets in states with weak
gun control laws, knowing then that the guns would make their way to criminals. Defendants argue that
they do not owe a duty to members of the public to protect them from criminal acquisition and misuse of
their handguns.
(b) “Foreseeability does not define duty- it merely determines the scope of duty once it is determined to exist”
(c) “Such a broad liability should not be imposed without a more tangible showing that the defendants were a
direct link in the causal chain that resulted in plaintiffs’ injuries and that the defendants were realistically in
a position to prevent the wrongs”
(d) This claim is beyond institutional capabilities
(a) HOW DO YOU SET A STANDARD OF CARE?
(b) How do you institute market share?
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 4) What about banks? Courts have refused to recognize a duty on the part of bank personnel to accede to a
robber’s demands
5) Gipson v. Kasey (see also Limited Duty Rules)
(a) Kasey gave Watters 8 of his prescription pain pills, noting that they were different strengths but not which
ones were which. Watters gave pills to Followill (girlfriend). Followill became increasing intoxicated and
died. The trial court granted summary judgment for Kasey finding that Kasey did not owe Followill a duty
of care and was not the proximate cause of death
(b) “Foreseeability is not a factor to be considered by courts when making a determination about duty.
Foreseeability often determines whether a defendant acted reasonability under the circumstances or
proximately caused the injury to a particular plaintiff. Such factual inquiries are reserved for the jury”
“Public policy may support a recognition of a duty of care”
6) Rodriguez v. Del Sol Shopping Center (See also Limited Duty Rules)
(a) A truck crashed through the front glass of a shopping center. Both groups of plaintiffs allege the shopping
center was negligent in that it failed to adequately do a bunch of stuff to stop vehicles from crashing
through glass. Trial court grants summary judgment for the plaintiff defendant finding that the injury was
not foreseeable and therefore there was duty as a matter of law
(b) “Foreseeability is not a factor for courts too conisder when determining the existence of a duty, or when
deciding to limit or eliminate a class of cases. Foreseeability cannot be a policy argument”
C) Superseding Causes
● An act of a third person or other force that cuts off a negligent actor’s liability for his own antecedent negligence

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§ 34. Intervening Acts and Superseding Causes
When a force of nature or an independent act is also a factual cause of physical harm, an actor’s liability is limited to
those harms that result from the risks that made the actor’s conduct tortious

§442. Consideration Important in Determining Whether an Intervening Force is a Superseding Force

f

1) Derdiarian v. Felix Contracting Corp.

(a) Felix under contract to install underground gas main for Con Edision. Derdiarian was employed by a
subcontractor to seal a gas main. Defendant James Dickens forgot to take his seizure medicine and lost
consciousness while driving and crashed into the work site where he hit a vat of hot liquid that splashed
onto the plaintiff who was ignited into a fireball. Plaintiff contends that Felix was negligent in failing to
properly block of the work site like he was supposed to. Felix contends that Dickens was a superseding
cause.
(b) “Where the acts of a third person intervene between the defendant’s act and plaintiff’s injury, liability turns
on whether the intervening act is normal or foreseeable consequence of the situation”
(c) “We cannot say as a matter of law that Dicken’s negligence was a superseding cause which interrupted the
link between Felix’s negligence and the plaintiff’s injuries. A prime hazard associated with dereliction of
safeguarding workplace is that a driver will negligently enter the work site. That the driver was negligent
or even reckless, does not insulate Felix from liability. The precise manner of the event need not be
anticipated. An intervening act may not serve as a superseding cause where the risk of the intervening
act occurring is the very same risk that renders the actor negligent”
2) Watson v. Kentucky & Indiana Bridge & R. Co.
(a) Train company negligently let gas flow into the street. A bystander, Duerr threw a match into a pool of
spilled gasoline causing an explosion. Duerr claims that he threw the match not knowing about the gasoline
by there is evidence that he did it deliberately

29
 (b) The act of lighting the match under such circumstances cannot be said to the efficient cause of the
explosion. It did not by itself produce the explosion nor could it have done so without contributing
negligence on the part of the railway
(c) If Duerr act was malicious, then it was one that the appellees could not reasonably have anticipated or
guarded against and RR not proximate cause of injuries
(d) Twerski says that this is a how case
3) Fuller v. Preis
(a) Lewis gets in a car accident and then basically loses his ability to be a surgeon. Then he learned that his
mother was ill. He executes a will and kills himself (7 months after car accident). Family sues owner and
operator of the car that struck the plaintiff. Their theory was the accident was responsible for Lewis’s
suicide.
(b) The act of is as a matter of law not a superseding cause. A tortfeasor may be liable or suicide as a direct
consequence of wrongful conduct
4) Wagner v. International Railway
(a) Plaintiff and cousin were on a train where the conductor had not closed the doors. There was a violent
lurch and plaintiff’s cousin fell out of train. The train stopped and plaintiff got out to look for his cousin.
He was walking across a bridge when he fell and got injured.
(b) “we find no warrant for shortening the chain of jural cause. We may assume that the peril and the rescue
were one transaction; that the sight of one must have aroused the impulse to the other. There must be
unbroken continuity for the commission of the wrong and the effort to avert its consequences. Continuity is
not broken by the exercise of volition. The law does not discriminate between the rescuer and the one who
counts the cost.
5) Death to Superseding Cause
(a) Barry v. Quality Steel Products, Inc.
(a) Plaintiffs are putting shingles on a roof when the scaffolding falls from beneath them. Plaintiff claims
that the brackets used for the scaffolding were in a distorted condition. Defendants allege that the
plaintiffs were negligent in how they installed the brackets and for violating OSHA by not having
additional protection and that this constituted a superseding cause.
(b) “The doctrine of superseding cause no longer plays a useful role in our common law analysis of
proximate cause…the doctrine of superseding cause involves a question of policy and foreseeability
regarding the actions of which the court will hold a defendant accountable. This aspect of superseding
cause is already imported into the proximate cause analysis”

VI) NON-LIABILITY FORE FORESEEABLE CONSEQUENCES (Limited Duty Rules)

A. Limited Duty
§7 7 Duty
(a) An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.
(b) In exceptional cases, when an articulated countervailing principle or policy warrants denying
or limiting liability in a particular class of cases, a court may decide that the defendant has no
duty or that the ordinary duty of reasonable care requires modification

1) Gipson v. Kasey (see also Proximate Cause)

(a) Kasey gave Watters 8 of his prescription pain pills, noting that they were different strengths but not which
ones were which. Watters gave pills to Followill (girlfriend). Followill became increasing intoxicated and
died. The trial court granted summary judgment for Kasey finding that Kasey did not owe Followill a duty
of care and was not the proximate cause of death

30
 (b) “Foreseeability is not a factor to be considered by courts when making a determination about duty.
Foreseeability often determines whether a defendant acted reasonability under the circumstances or
proximately caused the injury to a particular plaintiff. Such factual inquiries are reserved for the jury”
“Public policy may support a recognition of a duty of care”
(c) The issue of duty is not a factual matter; it is to be determined before the case specific facts are
consider
(d) Criminal statute: a statute will create a tort duty only if the statute is designed to protect the class of
persons, in which the plaintiff is included, against the risk of the type of harm which has in fact occurred
2) Rodriguez v. Del Sol Shopping Center (See also Proximate Cause)
(a) A truck crashed through the front glass of a shopping center. Both groups of plaintiffs allege the shopping
center was negligent in that it failed to adequately do a bunch of stuff to stop vehicles from crashing
through glass. Trial court grants summary judgment for the plaintiff defendant finding that the injury was
not foreseeable and therefore there was duty as a matter of law
(b) “Foreseeability is not a factor for courts too consider when determining the existence of a duty, or when
deciding to limit or eliminate a class of cases. Foreseeability cannot be a policy argument”
B) Limitations on the Duty to Rescue
● In general there is no duty to rescue
1) Yania v. Bigan
(a) Bigan was engaged in coal strip meaning and had a bunch of trenches on his property. Yania goes over th
Bigan’s to discuss business. According to the complaint, Bigan taunted Yania to jump into one of the
trenches. Yania jumped in and drowned to death
(b) “the mere fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal duty
(although moral) to go to Yania’s rescue unless Bigan was responsible, in whole or in part for causing the
peril”
(c) NO DUTY TO RESCUE UNLESS WHEN DEFENDANT DID NOT CREATE THE RISK
(d) This rule is home to a host of exceptions
2) Duty Based on Undertaking
§42. Duty based on Undertaking
An actor who undertakes to render service to another that the actor knows or should know reduce the risk of
physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if
The failure to exercise such care increases the risk of harm beyond that which existed
the undertaking or
The person to whom the services are rendered or another relies on the actor’s exercising
reasonable care in the undertaking
(a) Law imposes on the good Samaritan the duty to act with due care once he has undertaken rescue operations
(a) Would be rescuers will rest their oars in the expectation that effective aid is being rendered
3) Duty Based on Special Relationship
§314A. Special Relations Giving Rise to a Duty to Aid or Protect
A common carrier is under a duty to its passengers to take reasonable action:
To protect them against unreasonable risk of physical harm, and
To give the first aid after it knows or has reason to know that they are ill or
injured, and to care for them until they can be cared for by others
An innkeeper is under a similar duty to guests
A possessor of land who holds it open to the public is under a similar duty to members
of the public who enter in response to his initiation
One who is required by law to take or who voluntarily takes the custody of another
under circumstances such as to deprive the other of his normal opportunities for protection
us under a similar duty to the other
(a) Baker v. Fenneman & Brown Properties LLC.
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 (a) Baker goes into a Taco Bell. Hands money to the cashier and the fell backward. He was knocked
unconscious and began having convulsions. Baker claims when he regained consciousness, he stood
back up and then he fell forward and was knocked unconscious. Knocked out teeth and had laceration
on his chin. Baker contends that Taco Bell owed him a duty under the §314A
(b) Indiana standard for imposing duty: invitee and instrumentality causing the injury belonged to the
defendant
● The instrumentality requirement has been extended to where the illness or injury is due to
natural causes, pure accident, acts of a 3rd person, or negligence of the plaintiff
(c) “Taco Bell had a duty, as a business that invited members of the public to enter its facility, to provide
reasonable assistance to Baker, even though Taco Bell was not responsible for Baker’s illness”
(d) Twerski on Torts: “I don’t know what they are talking about”
(b) Stockenberger v. United States
(a) Stockenberger was a diabetic prone to hypoglycemic attacks. Stockenberg had been visibly ill all day
on the day that he died. Stockenberger says that he wants to leave work. One of his co-workers gave
him an Ensure and urged him to stay until he felt better. Stockenberger decided to drive home. He
drove erratically and crashed into a tree and died. Plaintiff claims that the prison’s inaction in allowing
Stockenberger to drive home in his condition was a breach of a duty of care
(b) Exceptions to the no-duty rule:
● 1) where the rescuer had explicitly or implicitly a contractual relationship to rescue plaintiff

● 2) the victim was in the rescuer’s custody and without access to alternative rescuers

● 3) The victim’s peril has been caused by the rescuer

(c) The exceptions to the no duty rule would have to be enlarged to encompass the case where an
employee became ill at the workplace for reasons unrelated to his work and the employer fails to use
due care to treat the illness
(c) J.S. & M.S v. R.T.H
(a) Plaintiff children were molested for 2 years by the defendant’s husband. There is some evidence that
there were several occasions where Mary had walked in on her husband alone with the children. Mary
never confronted her husband. Apparently Mary didn’t know about the assaults until the day her
husband was arrested. Plaintiffs allege Mary was negligent in that she knew of her husband’s
proclivities
(b) “when a spouse has actual or special reason to know of the likelihood of his or her spouse engaging in
sexually abusive behavior against a particular person or persons, a spouse has a duty of care to take
reasonable steps to prevent or warn of the harm”
(c) The court takes the non-restatement view that duty is based on foreseeability
● Foreseeable that spouse will abuse children: based on whether the spouse has committed
sexual offenses against children before, number/date of prior offenses, gender or prior
victims, age of prior victims, contact with children, therapeutic history; Wife is in a special
position to observe these abuses
● There’s also a statute that says a person with reasonable cause to believe that a child is being
abuse has to report immediately
♦ Creates a duty based on statute

● Social interests in protecting children from sexual abuse > social interest in enhancing marital
relationships

32
 (d) Institutionally, what should Mary have done??? The court doesn’t say that she would have to report to
authorities which is what the statute calls for
(d) Tarasoff v. Regents of University of California
§ 317. One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm
to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him
from doing such harm
(a) Poddar kills his girlfriend Tatiana. Two months earlier, Poddar told his psychologist (Moore) of his
intention to kill Tatiana. On Moore’s request, Poddar was briefly detained by campus police but he was
released when he appeared rational. Plaintiffs claim that defendants negligently failed to detain a
dangerous patent, negligently failed to ward Tatiana’s parents; breached duty to plaintiffs and public
(b) Also look at foreseeability as a construct of duty
(c) Apply special relationship exception: a relationship of defendant therapist to either Tatiana or Poddar
will suffice to establish a duty of care1
● Special relationship arising from patient and doctor. Such relationship supports affirmative
duties
● Plaintiff can amend their complaint to allege a cause of action against defendant therapist by
asserting that the therapists in fact determined that Poddar presented a serious danger of
violence, or failed to exercise reasonable care to protect her from that danger
♦ Majority view: have to tell either at least Tatiana or maybe her parents
a. Question of fact for jury
(d) The psychiatrist’s relationship to a dangerous patient gave rise to a duty to warn the patient’s intended
victim that the patient threatened to kill her
C) Limitations on Recovery for Pure Economic Loss
● Majority view: plaintiff cannot recover pure economic loss in tort; aka no economic loss recovery without
physical damage
1) State of Louisiana, Ex Rel. Guste v. M/V Testbank
(a) Inbound and outbound ships crash. Containers aboard the Testbank were lost overseas. Hydrobrombic acid
and PCP spill. All fishing, shrimping and related acts are suspended. Judge grants summary judgment for
defendants for all cases for economic loss without physical damages
(b) “We are unpersuaded that we ought to drop physical damage to a proprietary interest as a prerequisite for
recovery for economic loss. Without this limitation foreseeability loses much of ability to function as a
rule”
(a) rule has the virtue of predictability with the vice of creating results in cases at its edge that are said to
be unfair”
(c) From an insurers point of view it is not practical to cover, without limit, a liability that may reach
catastrophic proportions or to fix a reasonable premium on a risk that does not lent itself to actuarial
measurement
(d) Brite line rule so court’s preference to act a adjudicators rather that administrators
(a) Adjudicators: have a rule
(b) Makes a decision because they have to (go to jury)
(e) Note that the case was not dismissed against commercial oystermen, shrimpers, crabbers, and fishermen
(a) Presumably these plaintiffs will be allowed to recover if they can prove that they had a quasi-property
interest in oyster, shrimp, crab, fish that was destroyed by the oil spill
2) Middle ground position:
1
Restatement: a duty of care may arise from either 1) a special relation between the actor and the 3 rd person which imposes a duty upon the actor to control
the 3rd person’s conduct, or 2) a special relation between the actor and the other which gives to the other a right or protection
33
 (a) Criteria: 1) the extent to which the transaction was intended to effect the plaintiff 2) the foreseeability of
harm to the plaintiff 3) the degree of certainty that the plaintiff suffered injury 4) the closeness of the
connection between the defendant’s conduct and the injury suffered 5) the moral blame attached to the
defendant’s conduct 6) the policy of preventing future harm
3) People Express Airlines, Inc. v. Consolidated Rail Corp.
(a) Defendant’s negligence caused a dangerous chemical to escape from a railway tank car, resulting in
evacuation from the surrounding area of persons whose safety and health was threatened. The plaintiff’s
commercial airline was forced to evacuate its premises and suffered an interruption in business
(b) “A defendant owes a duty of care to take reasonable meausres to avoid the risk of causing economic
damages, aside from physical injury, to particular plaintiffs or plaintiffs comprising an identifiable class
with respect to whom defendants knows or has reason to know are likely to suffer damages from its
conduct. A defendant failing to adhere to this duty may be found liable for such economic damages
proximately caused by this breach”
(c) This is minority rule: uses a proximate cause analysis that is limited to very identifiable plaintiffs
D) Limitations on Recovery for Emotional Distress
● Claims for negligent infliction of emotional distress are based on emotional trauma suffered by one person who
witnesses or learns of an injury of another
● Many courts have held that defendants own no duty to avoid inflicting emotional distress on bystanders, or only
owe such a duty in very limited circumstances
● Justifications for limitations: foreseeability is almost infinite, courts hesitant to impose liability when defendant
has no relationship to plaintiff, justices are concerned about the effect on the administration of justice
1) The Impact Rule: there could be no recovery for right alone without impact.
(a) It also followed that there could be no recovery for physical manifestations without impact
(b) Some jurisdictions that still use the impact rule find that impact is a question for the jury
(c) Florida found an exception to the impact rule that was warranted when the only harm likely to result from a
statute’s breach is emotional distress
(d) Parasitic: could be added on if the plaintiff suffered a traditional physical contract from the defendant’s
negligence, but could not be sustained on their own
2) The Zone of Danger Rule
(a) Under the zone of danger rule, a plaintiff who (1) is in danger of physical impact, (2) reasonably fears
for her own safety, and (3) suffers serious emotional distress because of that fear can recover damages
§46. Negligent Conduct Directly Inflicting Emotional Disturbance on Another
An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other
of the conduct
Places the other in immediate danger of bodily harm and the emotional disturbance
results from the danger; or
Occurs in the course of specified categories of activities, undertaking, or relationships in
which negligent conduct is especially likely to cause serious emotional disturbance

(b) emotional distress disturbance must be serious. Conduct has to be negligent!

(a) Unless plaintiff falls in (b) exception, there is no cause of action unless the plaintiff is in immediate
danger of physical harm
(b) Creates elements of duty
(c) The rational for the rule is that the defendant owes these bystanders a duty of care because they are within
the area of the risk created by his conduct
(d) Negligent mishandling of corpses
(a) Area where courts generally impose liability for negligent infliction of emotional distress
34
 ● Due in part to the vulnerability of grieving loved ones and the importance of the opportunity
for them to pay their final respects, their emotional suffering does not seem too remote from
the defendant’s negligence in mishandling the body
(b) Sometimes limited to next of kin
(e) Negligent mishandling of genetic material
(a) Case where fertility clinic put embryo in wrong lady: “It was foreseeable that the information that
defendants had mistakenly implanted plaintiffs’ embyos in a person whom why would not identify,
would cause the plaintiffs emotional distress over the possibility that the child that they wanted might
be born to someone else. These circumstances, together with the plaintiff’s medical affidavits attesting
to objective manifestations of their emotional trauma, create a guarantee of genuiness that makes the
plaintiff’s emotional distress claim viable”
(f) Special Relationship
(a) Where the parties have a direct relationship with each other or there has been an undertaking such that
there are clear expectations as to appropriate conduct, courts will allow a cause of action for emotional
distress even when the plaintiff has not been put in immediate danger of bodily harm
(b) Generally familial (sister, daughter), doctor-patient relationship, lawyer-client relationship, some courts
allow contractual relationships
(g) Physical Manifestations
(a) Daley v. LaCroix
● Defendant was driving down the road near the plaintiff’s home. His vehicle left the highway,
traveled in the air and sheared off a utility pole. A number of high voltage lines snapped,
striking electrical poles into plaintiff’s home causing a big electrical explosion
● “Where a definite and objective physical injury is produced as a result of emotional distress
proximately caused by the defendant’s negligent conduct, the plaintiff in a properly pleaded
and proved action may recover in damages for such physical consequences to himself,
notwithstanding the absences of any physical impact upon plaintiff at the time of the shock”
♦ plaintiff has burden of proof that physical illness is the natural result of fight proximately
caused
● need apprehension of immediate bodily harm AND actual serious risk of bodily harm still
3) The Dillon Rule (FOR BYSTANDERS!!!!!!)
(a) Should the law recognize a derivative cause of action for emotional distress arising from witnessing injury
or death to a third person brought about by negligence of the defendant?
(b) In these cases there is plenty of contact, but should we borrow the zone of danger concept to limit liability
and deny recovery unless the plaintiff suffering emotional distress was personally threatened?
(c) Dillon v. Legg: In determining whether defendant owes plaintiff a duty of care, the courts will take into
account such factors:
(a) Whether the plaintiff was located near the scene of the accident
(b) Whether the shock resulted from a direct emotional impact upon plaintiff from sensory or
contemporaneous observance of the accident
(c) Whether the plaintiff and the victim were closely related
(d) In light of these factors, the court will determine whether the accident and harm were reasonably
foreseeable (this contemplates that the courts, on a case-to-case basis, what an ordinary man under the
circumstances would have foreseen)
(d) Thing v. La Chusa

35
 (a) Plaintiff was near the scene where her young son was injured in an automobile accident, but the
plaintiff did not witness the accident. She came upon the scene moments later and saw her son in a
badly injured condition. She brought suit against defendant for emotional harm
(b) The law dictates limitation of bystander recovery. The elements that justify an award for damages for
emotional distress caused by awareness of the negligent infliction of injury to a close relative are the
traumatic emotional effect on the plaintiff who contemporaneously observes both the event or conduct
that causes serious injury to a close relative and the injury itself
(c) A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted
injury of a third person IIF the plaintiff:
● 1) is closely related to the injury victim

● 2) is present at the scene of the injury producing event at the time it occurs and is then aware
that it is causing injury to the victim
● 3) as a result suffers serious emotional distress🡪 a reaction beyond which that which would
be anticipated in a disinterested witness and which is not an abnormal response to the
circumstances
E) Harm to Unborn Children
● Unborn children are persons capable of being physically harmed for the purposes of bringing an action to
recover civil damages later on, after the child is born with physical injuries caused prenatally by a wrongdoer’s
conduct
1) Werling v. Sandy
(a) allows wrongful death action for death of a fetus in utero is stillborn infant so long as the injury occurred
when the fetus was viable
2) Wrongful Birth
(a) Brought by parents alleging that, but for defendant’s negligence, the parents would have terminated the
pregnancy or that the mother would never have become pregnant at all
(b) Procanik by Procanik v. Cillo
(a) An infant may recover as special damages the extraordinary medical expenses attributable to his
affliction, but that he may not recover general damages for emotional distress for an impaired
childhood
(b) A child or parent may recover special damages for extraordinary medical expenses incurred during
infancy, and that the infant may recover those expenses during majority
(c) Here, the doctor didn’t cause the defects, he just took away choice of birth. Who gets to recover?
● Child can recover special damages BUT not for having been born

● Parents can’t recover for emotional damages or ordinary costs of raising child

VII) OWNERS AND OCCUPIERS OF LAND

● The notion that owners and occupiers of land owe duties of reasonable care to those who come on the land
clashes with the idea that property ownership of possession brings with it the privilege to act as one pleases
within one’s own domain. If one must act with reasonable care on her own property, she loses some of the value
of the property
A. Duties Owed to Trespassers—Common Law Categories

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● It is the function of the COURT not the JURY to determine the status of an entrant
1) Duty owed to Trespassers
(a) Duty only in that the possessor of land not act in a wanton and willful manner to a known trespasser
(b) This is a trespasser for the purpose of establishing a duty NOT for the purpose of intentional torts (different
definitions)
(c) Exceptions:
§336, Comment d.
When a trespasser or licensee is discovered in position of peril, a landowner is required to use reasonable care to
avoid injuring him. The duty to exercise ordinary care arises after the landowner knows, or from the facts within his
knowledge, should know or believe that a trespasser or licensee is on the land”

(a) When the trespasser is known or discovered, the courts impose a duty of reasonable care of the
possessor. Even in this regard the exception was limited to the duty to warn of hidden dangers
(b) Child trespassers

§339. Liability on a possessor of land to a child trespasser for physical harm resulting from artificial
conditions on land when
The place where the condition exists is one upon which the possessor knows or has
reason to know that the children are likely to trespass, and
The condition is one of which the possessor knows of has reason to know and
which he realizes or should realize will involve an unreasonable risk of death or
serious bodily injury or serious bodily harm to such children, and
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
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
The possessor fails to exercise reasonable care to eliminate the danger or otherwise
protect the children
2) Duty owed to Licensees [social guests]
(a) Persons who are on land with the consent of the owner but are there for their own purposes
(a) Social guests, short cut users, advertising leaflets distributors, charitable contribution solicitors
(b) Possessor of a land has a duty to conduct activities on the and in a reasonable manner and to warn of
hidden dangers
(a) similar to trespassers
3) Duty owed to Invitees
(a) Two categories of invitees:
(a) Persons who are invited to come on the land for a purpose connected with the business dealings of the
possessor
(b) Persons who come on the land as a member of the public for a purpose for which the land is held open
to the public
(b) Duty owed to an invitee is a full duty of reasonable care
(c) Has to warn of dangers even if dangers are obvious. In some instances, the possessor may even have the
duty to correct the danger
4) Gladon v. Greater Cleveland Regional Transit Authority
(a) Gladon gets drunk at a sporting game. He leaves to go to the bathroom and ends up at the train station
instead. He gets chased by some guys and ends up on the rails. He does not remember whether or not he
was pushed down there or if he slipped. A train starts to come. The conductor doesn’t start to slow down
until she sees Gladon’s shoes. Gladon suffers permanent injuries.

37
 (b) Glandon was an invitee when he purchased the RTA ticket, rode the train and waited on the platform.
RTA’s invitation did not extend to the tracks. At this point Gladon become a trespasser.
(a) Makes no difference whether his entrance was intentional, accidental, or negligent
(c) RTA was under no duty to discover Gladon on the tracks and could only be liable for willful or
wanton conduct
(a) “we find that in trial, reasonable minds could differ as to whether the speed of the train as it approached
the platform meets the wanton standard in light of the operator’s duty to adjust the train speed to her
range of vision and to the known track conditions”
(d) RTA’s duty to use ordinary care to avoid injuring Gladon did not arise until RTA knew or should have
known that Gladon was on the tracks
(a) “reasonable minds could reach different conclusions as to whether the operator exercised reasonable
care”
5) Carter v. Kinney
(a) Although some courts have made the move to reject the category analysis, some courts decided to keep it
(b) Carter did not enter the Kinney’s land to afford the Kinney’s any material benefit. He was an licensee
(c) We are not convinced that the licensee/invitee distinction no longer serves. The possessor’s intentions in
issuing the invitation determine not only the status of the entrant but the possessor’s duty of care to that
entrant”
(a) There was no duty to act reasonably to Carter, nor a duty to discover the danger
(b) The court does not want to get rid of the categories
B) Getting Rid of Common Law Categories
1) Rowland v. Christian
(a) Rowland was a licensee, Christian was a tenant. Rowland was using the bathroom when the porcelain
handle of one of the water faucets broke in his hand an injured him
(b) “ although it is true that some exceptions have been made to the general principle that a person is liable for
injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence
of statutory provision declaring an exception to the fundamental principle, no such exception should be
made”
(a) NO MORE CATEGORIES!!! General duty to act reasonably
● This will be fact sensitive (risk utility)
(b) The status of the plaintiff is relegated to is proper place in determining liability, and ordinary
negligence principles apply
(c) We assue Christian knew that the faucet was defective and dangerous, that the defect was not obvious,
and Christian knew Rowland was about to use the faucet and did not remedy the condition or warn of it
(d) Whether or not a guest has a right to expect that his host will remedy dangerous conditions, he should
reasonably be entitled to rely upon a warning of dangerous conditions
2) Scorecard:
(a) About 1/5 of states use the Rowland’s rule.
(a) Basso v. Miller (NY): “under the standard of reasonable care adopted by the court the common law
factors are no longer considered decisive. But, as indicated, most of them have probative value and to
that extent they will continue to have some relevance in determining whether, under all the facts and
circumstances, there has been a breach of duty”
(b) The restatement buys into the Rowland view with one exception:
(a) Ordinary trespassers: landowner owes duty of care
(b) Flagrant trespassers: landowner duty limited to (a) not acting in an intentional, wanton or willful
manner to cause physical harm (b) exercising reasonable care for a trespasser who reasonably appears
to be imperiled and helpless or unable to help themselves
● Flagrant= egregious or atrocious

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C) Special Rules Limiting Possessor’s Liability
1) Firefighter’s Rule: firefighters or police who entered on the premises of another to perform their functions were
treated as licensees. The possessor of land owed no duty to make the premises safe for a licensee nor to inspect
fro dangers unknown to the possessor
(a) “it offends public policy to say tah a citizen invites private liability merely because he happens to create a
need for those public services”
2) Recreational Use: most states have enacted recreational use statutes that partially immunize the owner for
accidents that take place on property. The statues do NOT apply to landowners who charge money for the use
of the land, but if the public has free access to the land, the statute works as a protective shield
(a) See New York Recreational Use Statute

D) Duties owed to those outside the Premises

● A possessor of land is liable for harm negligently done by activity on the premises of for artificial conditions
created by her on the premises to persons injured off the premises
● The corollary is that possessor is not responsible for natural conditions on the land that cause injury off the land
1) Taylor v. Olsen
(a) The plaintiff sues for damages for injuries she sustained when her car, on a dark windy January evening,
struck a tree which shortly before had splintered and fallen across the road. The trial court directed verdicts
for the defendant. Olsen says that he did not have a duty because the tree was a rural tree.
(a) In the past there was no liability to outsiders caused by fallen rural trees and compared to liability that
was applied for urban trees
(b) “ except for extreme situations the question of the landowner’s or possessor’s attention to other condition
of his roadside trees under a general standard of reasonable care to prevent unreasonable risk of harm, is to
be decided as a question of fact upon the circumstances of the individual case” … “ under these
circumstances, it would be a jury question whether the defendant had taken reasonable care to inform
himself of the condition of the tree”
(a) the court says here that Olsen was reasonable because the burden of checking each tree would be far
too high
● there was no outside evidence that the trees were not in good condition

39
 ● he would have to cut into the trees to see if it was a good tree or not
2) Despite this, many courts still stick to the urban-rural tree rule
E) Duties owed by Lessors
● At common law, the lessor was treated as the equivalent of a vendor of property who had sold the land. Unless
the vendor knows of the dangerous condition and conceals it from the purchaser, he is not liable for injuries that
occur after the vendee has taken possession
● The rule prompted many exceptions, so much so that some courts have simply scrapped the rule in favor of a
general duty of reasonable care
1) Sargent v. Ross
(a) Plaintiff’s daughter fell to her death from an outdoor stairway at a residential building owned by the
defendant and rented by the plaintiff. No apparent cause for the fall except for the fact that it was
dangerously steep and the railing wasn’t good enough to stop a fall
(b) Common law rule that a landlord was only liable for injuries from defective and dangerous conditions if
the injury was attributable to 1) a hidden danger on the premises of which the landlord was aware, but the
tenat was not 2) premises leased for public use 3) premises retained under the landlord’s control, such as a
common stairway 4) premises negligently repaired
(a) Plaintiff try and stuff their claim into the negligent repair theory
(c) “We discard the rule of caveat lessee and the doctrine of landlord nonliability in tort to which it gave birth.
We thus bring up to date the other half of landlord-tenant law. Henceforth, landlords and other persons
must exercise reasonable care not to subject others to an unreasonable risk of harm…A landlord must act
as a reasonable person under all circumstances including the likelihood of injury to others, the probable
seriousness of injuries, and the burden of reducing or avoiding the risk”
(a) what was formerly part of no duty rule becomes part of negligence balancing
F) Premises Liability: Securing against Crime
● In general, courts have not been enthusiastic in imposing a duty of reasonable care on actors to protect others
against criminal conduct by 3rd persons
1) Posecai v. Wal-Mart Stores, Inc.
(a) Posecai is attacked while leaving a Sam’s Club store. No guards in the parking lot
(b) The courts says that there is generally no duty to protect 3rd persons from crimes but the duty arises under
limited circumstances when the criminal act in question was reasonably foreseeable to the owner of the
business. The court then discusses 4 ways of determining foreseeability:
(a) 1) specific harm rule: no duty to protect patrons from crime unless aware of specific, imminent harm
(b) 2) Prior similar incidents test: foreseeability is established by evidence of previous crimes on or near
the premises
● must be evidence of previous crimes on the premises
(c) 3) Totality of circumstances: takes additional factors into account
(d) 4) balancing test: balances foreseeability of harm against the burden of imposing duty to protect against
the criminal acts of third persons
● court agrees that the balancing test is the best method for determining when business owners
owe a duty to provide security to patrons
● “ The foreseeability of the crime risk on the defendant’s property and the gravity of the risk
determine the existence of the extent of the defendant’s duty”🡪 are to be determined by the
facts of the case

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 ● Sam’s did not possess the requisite degree of foreseeability for the imposition of a duty to
provide security patrols in its parking lot
● The court is signaling that it will need proof of foreseeability of harm and will be especially
watchful as to the high cost of implementation of secutity before it allows the case to pass the
duty stage
(e) The first question is whether there are special duty rules. The next question is what is the standard of
care??
● What should they have done? Cops? Lighting?

VIII) AFFIRMATIVE DEFENSES

A. Affirmative Defenses based on the Plaintiff’s Conduct
● Contributory Negligence: the plaintiff who was blameless was entitled to full vindication in a court of law, but
the one who shared the taint of sim in any degree must be sent forth to languish in the wilderness
o Butterfield v. Forrester: “the plaintiff was proved to be riding fast ashis horse would go, and this was through
the streets of Derby. If he had used ordinary care he must have seen the obstruction; so that the accident
appeared to happen entirely from his own fault”… “In cases of person riding upon what is considered to be
the wrong side of the road, that would not authorize another purposely to ride up against them. One person
being in fault will not dispense with another’s use of ordinary care for himself”
● Comparative Negligence
o Pure comparative negligence: an injured party may recover, regardless of her degree of fault but her recovery
is reduced by her percentage of fault
▪ NY+ 12 other states
o Modified Comparative negligence: Bar claimants from any recovery if her negligence reaches a certain level,
but they set the bar at the point where the plaintiff’s negligence either equals or exceeds that of the defendant
(33 states)
▪ MAJORITY: plaintiff can recover if fault is less than defendant (plaintiff can recover up to
51%)
▪ OR plaintiff can recover as long as not more negligence than defendant’s (plaintiff can
recover up to 50%)
▪ 4 states retain contributory negligence
o What counts as fault?
§8. Factors for Assigning Shares of Responsibility
Factors for assigning percentages of responsibility to each person whose legal responsibility has been established to
include
The nature of the person’s risk creating conduct, including any awareness or indifference
with respect to the risks created by the conduct and any intent with respect to the harm
created by the conduct; and
The strength of the casual connection41 between the person’s risk creating conduct and the
harm
 o The nature of a person’s risk creating conduct includes things such as how unreasonable the conduct was
under the circumstances, the extendt to which the conduct failed to meet te standard of care, the circumstances
surrounding the conduct, awareness, intent or indifference with respect to risks
o Plaintiff’s fault must be both the cause in fact and the proximate cause of her own harm

▪ Some scholars might lose her own case under proximate cause rules because her own
negligence was an intervening or superseding cause
● Comparative Fault and Joint & Several Liability
1) McIntyre v. Balentine
(a) Balentine traveling on the highway. McIntyre pulls out and is struck by Balentine. McIntyre had a BAC
of .17. Balentine was speeding
(b) First the court abandons contributory negligence in favor of comparative fault and adopts the majority
modified comparative fault rule. Then for some reason the court gets rid of joint and several liability:
“having thus adopted a rule more closely linking liability and fault, it would be inconsistent to
simultaneously retain a rule for joint and several liability which may fortuitously impose a degree of
liability that is out of all proportion with fault”
(c) Twerski on Torts: this is BAD for plaintiffs
(a) Getting rid of joint and several liability works fine if all the defendants are solvent. However if one
defendant is not solvent, the plaintiff only collects from the defendant that is solvent (whereas with
joint and several liability, each defendant is liable for 100% of the damage because they are 100% at
CAUSE. By doing away with joint and several liability, even though each defendant caused 100% of
the plaintiff’s injuries, they are only liable for their portion of FAULT). McIntyre says that joint and
several liability no longer has a place, however, it can still work through contribution
2) Allocating Fault among multiple parties: when a plaintiff joins several defendants, the question arises whether
the plaintiff’s fault is to be compared with the fault of each defendant separately of the defendants in aggregate
(a) Under pure comparative fault, a plaintiff is entitled to recover from any defendant no matter how high the
plaintiff’s percentage of fault. The problem really arises with modified comparative fault
(b) Minority: deny recovery to plaintiff if plaintiff’s fault is greater than each of the defendant’s separately but
less than that of defendants together
(c) Majority: allow plaintiff to recover if the plaintiff’s fault is less than that of the combined fault of the
defendants
(d) In states where joint and several liability has been abolished, each defendant pays only their portion of
fault
● Comparative fault as a defense intentional or reckless conduct
o With regard to recklessness, most courts will allow comparative fault and will let a jury assess the relative
fault of the plaintiff and the reckless defendant
o With regard to intentional torts, most courts reject resist reducing the plaintiff’s recovery based on the
plaintiff’s negligence
▪ Some courts have made exceptions where the defendant battered a plaintiff after the plaintiff
constantly provoked the defendant throughout the day or where defendant rock band member
assaulted a plaintiff who had been drinking and acting in a disorderly manner
● Comparative Fault and Crime
1) Alami v. Volkswagen of America, Inc.
(a) Baker-Manning Rule: plaintiff cannot rely upon an illegal act or relationship to define the defendant’s duty
(a) Baker-manning is a complete bar
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 (e) Here though, the duty the plaintiff seeks to impose originates not from her husband’s act, but from
Volkswagen’s obligation to design and manufacture and market a safe vehicle
(a) The duty to make the car crashworthy has nothing to do with how Alami got into an accident
● Assumption of the Risk
o The basic premise of assumption of the risk is that a person aware of a risk, and knowingly decides to
encounter it, accepts responsibility for the consequences of that decision
o Express assumption of the risk: plaintiff expressly agrees that she will not hold the defendant liable for
injury she suffers from a risk created by the defendant
▪ As a general matter, express agreements to assume a risk, even a negligently created risk are
enforced by the court
▪ Exceptions: consent must be freely given (consent extracted from someone with little bargaining
power is generally not allowed), plaintiff also must consent to the specific risk that caused the
injury
▪ Contractual assumptions of the risk are also limited by general contractual principles
1) Stelluti v. Casapenn Enterprises, L.L.C
(a) “Although there is a public interest in holding health clubs to its general common law duty of business
invitees, it need not ensure the safety of its patrons who voluntarily assume some risk by engaging in
strenuous physical activities that have a potential to result in injury
(b) HOWEVER, court will not recognize a waiver for intentional or reckless conduct
● Includes NY, but depends on jurisidiction
o Implied assumption of the risk: assuming the risk just by engaging an activity while also knowing of the
risks involved
o Primary assumption of the risk: applies where certain risks are inherent in the activity and
unavoidable at a reasonable cost. Harm does not result from negligence
o Secondary assumption of the risk: Defendants created unreasonable risks🡪 defendant breached the
standard of care but plaintiff, knowing the unreasonable risk, choses to encounter it anyway
1) Death of Assumption of the Risk! Long Live Assumption of the Risk!
(a) Blackburn v. Dorta
(b) “ we find no discerbible basis analytically or historically to maintain a distinction between the
affirmative defense of contributory negligence and assumption of the risk. The latter seems to be a
viable, rational doctrine only in the sense which connotes unreasonable conduct on the part of the
plaintiff…Therefore we hold that the affirmative defense of implied assumption of the risk is merged
into the defense of contributory negligence and the principals of comparative fault”
(c) see page 511
(b) Turcotte v. Fell
(i) The analysis of care owed to a plaintiff in the professional sporting eveny by a coparticipant and by the
proprietor of the facility must be evaluated by considering the risks the plaintiff assumed when he
elected to participate in the event and how those assumed risks qualified defendant’s duty to him
(ii) Assumption of the risk is not an absolute defense but a measure of the defendant’s duty of care and
thus survives the enactment of the comparative fault statute
(iii) LONG LIVE ASSUMPTION OF THE RISK

B. Avoidable Consequences

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1) Avoidable Consequences---Duty to Mitigate Damages
(a) The defendant is responsible for the injury he caused to the plaintiff, however the plaintiff is responsible
for damage that could have been avoided had they taken reasonable steps to reduce the damages
(b) Novko v. State of New York
(i) Defendants argue that plaintiff did not fulfill duty to mitigate damages because he did not change his
profession from a farmer to a seller of farm equipment
● A party who claims to have suffered damage is bound to use reasonable and proper efforts to
make the damage as small as practical
● Changing profession is unreasonable
(c) Seatbelts:
● Many states do not allow evidence that a plaintiff did not wear a seatbelt to be introduced

● A few states allow recovery based on comparative fault

● NY: if you do not wear a seatbelt, your damages will be reduced to what the damages would have
been had you had worn a seatbelt

IX) JOINT TORTFEASOR LIABILITY

● A tortfeasor can be responsible to pay all of the plaintiff’s damages even though other tortfeasors are responsible
for harm when: 1) the defendants act in concert 2) defendants are held liable by operation of the law 3)
defendants cause a single indivisible injury
A) Concerted Action
1) Vicarious liability: one defendant is held liable for the acts of others, not because he actually caused the harm
to the plaintiffs, but because he expressly, or impliedly, agreed to engage in activity with others, who turn
out to be tortfeasors
§876. Persons Acting in Concert
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
Does a tortious act in concert with the other or pursuant to a common design with him, or
Knows that the other’s conduct constitutes a breach of duty and gives substantial assistance
or encouragement to the other so to conduct himself, or
Gives substantial assistance to the other in accomplishing a tortious result and his own
conduct, separately considered, constitutes a breach of a duty to a third person

2) the law applies whether or not the others know his act is tortious
3) Herman v. Westgate
(a) Plaintiff was injured at bachelor party when his friends threw him off the side of their yacht
(b) Concerted action liability rests upon the principle that all of those who, in pursuance of a common plan or
design to commit a tortious act, actively take part in it, or ratify and adopt his acts done for their benefit,
are equally liable with him
(c) Liability of a single defendant will not depend on whether he actually propelled the plaintiff into the water;
participation in the concerted activity is equivalent to participation
B) Liability Based on Operation of Law
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 1) Where the doctrine of respondeat superior applies, the employer is a joint tortfeasor with her employee. Each
bears the entire responsibility for the plaintiff’s injuries
2) In general, one is not liable for the torts of an independent contractor
C) Indivisible Injury
1) American Motorcycle Assn. v. Superior Court of Los Angeles County
(a) “Our adoption of comparative negligence to ameliorate the inequitable consequences of the contributory
negligence rule does not warrant the abolition or contraction of joint and several liability doctrine; each
tortfeasor whose negligence is the proximate cause of and indivisible injury remains individually liable for
all compensable damages attributable to that injury
D) SEE PAGES 555-556

X) STRICT LIABILITY
● Liability without fault🡪 liability based merely on defendant’s lawful conduct

● Liability imposed without regard to defendant’s negligence

o Flows from choice to conduct the activity at all
● Actor liable even if they exercised reasonable care

● Shifts responsibility for the residual accident costs from plaintiff to defendant

● We must identify ahead of time which actors and which activities will be strictly liable for which harms

● Strict liability is a question of law!!!!

A) Possession of Animals
● In general, courts impose strict liability on possessors of livestock and wild animals, but they hodl the possessors
of domestic animals (dogs, cats, etc) labile only if the plaintiff proves that the defendant pet owner knew ahead
§22(a)
An owner of a wild animal is subject to strict liability for physical harm caused by the wild animal

of time that the animal was prone to violence

o Even if the plaintiff can show that the animal was a wild animal, the plaintiff still has to show that the
animal was in the defendant’s control
● Domestic animals?
o The general rule: owner of domestic animal other than livestock is liable to an injured plaintiff only if the
owner knows of her particular animal’s dangerous propensities
▪ Most obvious way to show this is to show that the car/dog had attacked someone before

▪ Even if this can’t be shown, a defendant can still be liable if plaintiff can show that defendant had
prior knowledge from some other source
1) Bard v. Jahnke

45
 (a) Timber enlists Bard to help him repair some cow beds for Jahnke. Bard says that he has worked around
cows before, and was familiar with working around them. No one from the farm knew that bard had been
on the farm that day or that he/Timmers intended to fix the bed that dayHe is working on the cow bed
when a bull comes by and charges at him
Collier v. Zambito Rule:
The owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will
be held liable for the harm the animal causes as a result of those propensities. Vicious propensities include the
propensity to do any act that might endanger the safety of other persons and property of person given the situation

(b) Restatement sec 518: the owner of a domestic animal, which the owner does not know or have reason to
know to be abnormally dangerous, is nonetheless liable if he intentionally causes the animal to do harm or
is negligent in failing to prevent harm
(a) Comment h: one who keeps a domestic animal that possess only those dangerous propensities that are
normal to its class is required to know its normal habits and tendencies. He therefore is required to
realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances
and to exercise reasonable care to prevent foreseeable harm
(c) “We have never held that particular breeds or kinds of domestic animals are dangerous and therefore when
an individual animal of the breed or kind causes harm, its owner is charged with knowledge of vicious
propensities”.
(a) When harm caused by a domestic animal, its owner’s liability is determined SOLELY by the Collier
rule
(b) Not going to look at types of animals 🡪 still have to know about vicious propensities
B) Abnormally Dangerous Activities
● Many jurisdictions accept the principle that actors should be held liable without fault for injuries resulting from

§20. Abnormally Dangerous Activities

An actor who carries on an abnormally dangerous activity is subject to strict liability for
physical harm resulting from the activity

activities that pose an unusually high risk of injury

● Justifications: 1) high level of risk from the activity 2) unilateral benefit to actor 3) cost avoidance and loss
spreading

§20 (b). An activity is abnormally dangerous if

The activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors; and
The activity is not one of common usage

● Defining Abnormally dangerous activities

o the main point is that strict liability should apply to activities that pose unusual and irreducible risks
o examples include blasting, large ponds for the retention of mine wastes, crop dusting, fumigation,
storage or large quantities of gasoline, rockets, experimental aircraft, use of radioactive materials jjk
1) Indiana Harbor Belt R.R. v. American Cynamid Co.
(a) American Cynamid Co. makes a really dangerous chemical. They gave the chemical to a train carrier to
transfer the chemical the NJ. The train stops at a shipping yard in Illinois. The train had to pass through
Chicago. In Illinois it is discovered that the tank with the chemical was leaking and ¾ of the chemical were
46
 gone. Illinois department of environmental protection ordered the switching line to take decontamination
measures which add up to $980,000
(b) “The baseline common law regime of tort liability is negligence. When it is a workable regime, because the
hazard of an activity can be avoided by being careful, there is no need to switch to strict liability”
(c) “The relevant activity is transportation, not manufacturing and shipping. But even if the plaintiff is treated
as a transporter, and not merely a bulk shipper, it has not been shown that the transportation of acrylonitrile
in bulk by rail through populated area is so hazardous an activity, even when due care is exercised, that the
law should seek to create incentive to relocate the activity to nonpopulated areas, or to reduce the scale of
the activity, or to switch to a different means of transportation”
(d) Posner suggests that the main reason to switch from negligence to strict liability is to affect the levels, and
locales of the activity: by making the actor strictly liable, we want to give him incentive, to experiment
with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but
instead relocating, changing or reducing the activity giving rise to the accident

XI) PRODUCTS LIABILITY

A) Selling a Defective Product
§402 Special Liability of Seller of Product for Physical Harm to User or Consumer
One who sells any product in a defective condition unreasonably dangerous to the user or
consumer or his property is subject to liability for physical harm thereby caused to the ultimate
use or consumer, or his property if
The seller is engaged in the business of selling such a product, and
It is expected to and does reach the user or consumer without substantial
change in the condition in which it was sold
The rule state in Subsection (1) applies although
The seller has exercised all possible care in the preparation and sale of his
product
The user or consumer has not bought the product from or entered into any
contractual relationship with the seller

1) this rule kills privitiy for strict liability,

2) the rule imposes liability even though the seller exercised all possible care: it is not a defense to have good
quality control
3) Plaintiff does not have to prove negligence but does have to prove defect and cause
4) Some states have gotten rid of this but not NY
5) Selling a defective product means that the entire distribution chain is the cause and they are liable for the
harm
6) Comment i Unreasonably dangerous: the article sold must be dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to
the community as to its characteristics
§2. Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in
design, or is defective because of inadequate instructions or warning. A product:
Contains a manufacturing defect when the product departs from its intended design even
thou all possible care was exercised in the preparation and marketing of the product;
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 render thes product not reasonably safe
Is defective because of inadequate instructions or warnings when the foreseeable risks of
harm posed by the product could have been 47 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 warning of the instructions or
warning renders the product not reasonably safe
B) Manufacturing Defects
● Strict liability means that if a product comes off the assembly line and did not meet the manufacturer’s own
standard then the product was defective🡪 the manufacturer sets its own design standard
● If the product departed from the standard and the defect caused the harm, the manufacturer would be subject to
liability even if the manufacturer exercised reasonable care in its quality control

§3. Circumstantial Evidence Supporting Inference of Product Defect

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 accident that harmed the plaintiff:
Was of a kind that ordinarily occurs as a result of product defect; and
Was not, in the particular case, solely the result of causes other than product defect existing
at the time of sale or distribution

● Manufacturing defect claims are the only true strict products liability claims
1) Welge v. Planters Lifesavers Co.
(a) “If it is the kind of accident that would not have occurred but for a defect in the product, and if it is
reasonably plain that the defect was not introduced after the product was sold. The accident is evidence that
the product was defective when sold”
C) Design Defects
● A product can be defective if its design is made unnecessarily dangerous to the user

● Since many products cannot be functional without some risk of injury, the product has to be found to be
unreasonably dangerous
● The courts need some standard for distinguishing between acceptable designs and those that pose unacceptable
risks
1) Risk-Utility Balancing: Reasonable Alternative Design
(a) Plaintiff must establish that the foreseeable risks of harm could have been reduced or avoided by the
adoption of a reasonable alternative design
(a) Factors relevant to determining whether the omission of a reasonable alternative design renders a
product not reasonable safe:
● Magnitude and probability of the foreseeable risks of harm

● Instructions and warnings accompanying the product

● Nature and strength of consumer expectations regarding the product

● The relevant advantages and disadvantages of the product as designed and as it alternatively
could have been designed
● A plaintiff does not necessarily have to show proof of all these factors; analyzed case by case
(b) When evaluating the reasonableness of a design alternative, the overall safety of the product must be
considered. It is not sufficient that the alternative design would have reduced or prevented the harm
suffered by the plaintiff if it would also have introduced in to the product other dangers of equal or
greater magnitude
(b) Prentis v. Yale Manufacturing Co.

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 (a) “In design defect case, the issue is whether the manufacturer properly weighed the alternatives and
evaluated the trade-offs and thereby developed a reasonably safe product; the focus is unmistakably on
the quality of the decision and whether the decision conforms to socially acceptable standards”… “The
risk utility balancing is merely a detailed version of Hand’s negligence calculus”
(b) “We adopt a pure negligence, risk utility test in products liability actions against the manufacturer of
products, where liability is predicated upon defective design”
● the jury should be instructed on a single negligence theory of negligent design
(c) risk utility distinction is nothing more than semantics; this is negligence
(d) the only time you would really use strict liability would be to get someone down the commercial chain,
like the retailer
● for manufacturers, strict liability and negligence are the same thing
(e) the only way you can define the defect is to define what the manufacturer should have done
(c) Does risk utility require proof of RAD?
(a) 25 states have adopted the RAD requirement, 11 combine risk utility and consumer expectation into 2
prong test, 4 states do not require RAD
(b) Vautour v. Body Masters Sports Industries, Inc.
● “The rigid prerequisite of a reasonable alternative design places too much emphasis on one of
the many possible factors that could potentially affect the risk utility analysis”
● The court here finds that a RAD is a factor not a requisite to a prima facie case

● TWERSKI ON TORTS: RAD is the ANSWER to the risk utility balancing, not a factor; all
negligence cases have reasonable alternatives, so yes, the plaintiff must show RAD
● Custom is relevant but not binding
2) Consumer Expectation Test
(a) Consumers have a right to expect a reasonably designed product
(b) Imposes liability if the product disappoints consumer expectations
(a) Potter v. Chicago Pneumatic Tool Co.
● Consumer expectation test: a manufacturer is strictly liable for any condition not
contemplated by the ultimate consumer that will be unreasonably dangerous to the consumer
● Modified consumer expectation test: incorporates risk utility factors into the ordinary
consumer expectation analysis
♦ For instances involving complex product designs in which an ordinary consumer may bot
be liable to form expectations of safety
♦ Under the modified approach, the consumer expectation test would establish the product’s
risks and utility, and the inquiry would then be whether a reasonable consumer would
consider the product design unreasonably dangerous
♦ The ordinary consumer expectation test is appropriate when the everyday experience of
the particular product’s users permits the inference that the product did not meet the
minimum safety expectations

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 ♦ The jury would engage in risk utility balancing when the particular facts do not reasonably
permit the inference that the product did not meet the safety expectations of the ordinary
consumer
● STILL HAVE TO PROVE CAUSATION

● TWERSKI ON TORTS: basically this case is just silly

3) Two-prong test for Defect

(a) Soule v. General Motors Corp.
● “An injured person is not foreclosed from proving defect in the product’s design simply
because he cannot show that the reasonable minimum safety expectations of its ordinary
consumers were violate. A product is still defective embodies ‘excessive preventable danger’
that unless ‘the benefits of the design outweigh the risk of danger inherent in such design’”
♦ the jury MUST consider the manf’s evidence of competing design consideration. The
issue of design defect cannot fairly be resolved by standardless reference to expectations
Consumer expectation

Meet fail

2. risk utility plaintiff wins

ordinary consumers
4) Should Product Categories be Declared Defective?
(a) O’Brien v. Muskin Corp.
(a) The court does a risk utility to see if the the benefit of the product to the world is more than the costs to
the world
(b) We’re now talking about whether a product should be allowed at all
(c) This was a bad idea and it didn’t last
(d) Read dissent for good take
(b) Adamo v. Brown and Williamson Tobacco Corp.
(a) “it is not necessary in every product liability case that the plaintiff showt he safer product is acceptable
to consumers as the one the defendant sold; but such showing is necessary here where satisfying the
consumer is the only function the product has”
(b) “If regular cigarettes are to be banned, that should be done by the legislature”
(c) light cigarettes are NOT an alternative🡪 you do not judge light cigarettes against regular cigarettes
D) Failure to Warn
● A product must be safe enough with the appropriate warnings and directions byt unreasonably dangerous
without them
1) What dangers does a manufacturer have to warn about?

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 (a) The manufacturer should consider the extent of the risk, the likelihood that it will arise, the user’s likely
understanding of the danger, the means available of conveying the warning
(a) Consumer should basically be warned of if danger is not generally known or if known is one which the
consumer would reasonably not expect to find in the product
(b) Generally, the plaintiff insists that they should have been warned about exactly what their injury is
(b) Failure to warn theories are dangerous because they are potentially endless
(c) As you increase the number of warnings, you decrease the user’s ability to read and understand the
warnings
(d) If a warning is required it must be an adequate warning🡪 calculated to clearly alert the user to the danger
and how to avoid it
2) What standard? Negligence or Strict Liability??
(a) In effect, warning claims are negligence claims
(b) Anderson v. Owens-Corning Fiberglass Corp.
(a) Manufactures did not believe that low concentrations of asbestos could cause mesothelioma
(b) Court says YES! Strict Liability determined by what the defendant knew or should have known
● BUT ‘knew or should have known’ is NEGLIGENCE!!!!!!!
(c) “The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn
of a particular ris that was known or knowable in light o f the generally recognized and prevailing best
scientific and medical knowledge available at the time of manufacture and distribution”
● HELLLLLO THIS IS NEGLIGENCE
(d) “In contrast under strict liability principles the manufacturer has no such leeway; the manufacturer is
liable if it failed to give warning of dangers that were known to the scientific community at the time it
manufactured the product”
● TWERSKI: “if anyone can explain to me what this is talking about you can get an A cause I
have no idea”
(c) STILL HAVE TO PROVE CAUSATION; how can we be confident that if there had been a warning the
plaintiff would have read it?
(a) A number or jurisdictions implement a heeding presumption
● When a defendant fails to warn the court presumes that that the plaintiff would have read the
warning and would have avoided the stated risks
● It is then on the defendant to rebut the presumption
(b) Some courts still insist that the burden stays on the plaintiff
(d) Informed Choice warnings
E) Proximate Cause
1) Literally the same analysis as common law negligence
2) Union Pump Co. v. Allbriton
(a) Is it in the scope of foreseeability that the plaintiff would take the dangerous route back”
(a) Court says no but at the least it is a jury question

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