Outline TORTS

Final: December 2

I. Traditional Forms of Liability Without Fault:

A. Abnormally Dangerous Activities
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When dealing with explosives, a defendant is strictly liable for the resulting damage. Abnormally dangerous materials are always
subject to strict liability, but make sure that it was the abnormally dangerous activity that caused the injury (Spano v. Perini Corp)
Negligence is analyzed by breaking down causes of action into their elements: duty, breach, causation, harm
There is a need to distinguish between the appropriateness of place (Rylands v. Fletcher) and the activity being unduly dangerous
because it was in an inappropriate place (Yommer v McKenzie. Ex: Locating an underground gasoline storage tank next to someones
drinking water in a residential area is the basis for strict liability)
Restatement (First) focuses on when an activity is ultrahazardousnamely, when it cannot be accomplished more safely even when
proper due care is exercised.
Restatement (Second) replaces ultrahazardous with abnormally dangerous activity. Includes testWeigh and balance factors to
determine if abnormally dangerous activity:
Whether an activity involves a high degree of risk of some harm to the person, land, or chattel of others
Whether the gravity of the harm which may result from it is likely to be great
Whether the risk cannot be eliminated by the exercise of reasonable care
Whether the activity is not a matter of common usage
Whether the activity is inappropriate to the place where it is carried out
The value of the activity to the community
Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. is an example of the application of the above six-factor test. Posners
baseline view is that the common law regime of tort liability is to ask if there was negligence. Negligence is the default standard for
determining when an injured party recovers from somebody else. Posner would reorder these six factors of Restatement (Second)
520 to put most emphasis on question of whether exercise of reasonable due care would reduce risk.
An activity is abnormally dangerous if all actors exercise due care, and the activity is not one of common usage.

B. Nuisance
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Restatement (Second): a non-trespassory invasion of anothers interest in the private use and enjoyment of land.
The right of property ownership does not entitle you to use your property in any way you want. You cannot unduly
interfere with your neighbors right to use and enjoyment of property. (Bohan v. Port Jarvis Gas-Light Co)
Can defendant still be liable for the natural effects of their legal businessthat is, if not negligent? Yes. There must
be respect for neighbors rights.
A reasonable use of ones property can never be construed to include uses that result in material injury to the
property of another. (Bohan)
It must be a substantial interference. Otherwise general rule is live and let live.
If the effect is a necessary consequence of the way the land is being used the negligence liability regime does not
apply.
No need to show negligence if you know the harm will happen.
General Rule 822: One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of
an invasion of anothers interest in the private use and enjoyment of land, and the invasion is either:
(a) Intentional and unreasonable, or
(b) Unintentional and otherwise actionable under the rules controlling liability for negligent or reckless
conduct, or for abnormally dangerous conditions or activities.
Unreasonableness of Intentional Invasion 826: An intentional invasion of anothers interest in the use and
enjoyment of land is unreasonable if:
(a) The gravity of the harm outweighs the utility of the actors conduct; or
(b) The harm caused by the conduct is serious and the financial burden of compensating for this and
similar harm to others would not make the continuation of the conduct feasible.
A claim for nuisance is predicated upon a substantial invasion of a plaintiffs interest in the use and
enjoyment of his property when such invasion is:
(a) Intentional and unreasonable;
(b) Unintentional and otherwise actionable under the rules for negligent or reckless conduct; or
(c) So abnormal or out of place in its surroundings as to fall within the principal of strict liability. (Public
Service Co. of Colorado v. Van Wyk)

Outline TORTS
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Final: December 2

What if an injunction would be drastically more injurious to the defendant than what the plaintiff would recover?
When a court is considering injunctive relief it is supposed to consider the fairness of its resolution and be flexible in
forming remedies that do justice. (Boomer v. Atlantic Cement Co.remember that plaintiffs only stood to receive
$185,000 in damages but an injunction would have cost the defendants a $45M factory and the region 300 jobs.
Court awarded damages but not injunction because plaintiff would have had excessive bargaining power)
If you maintain a business that is a breeding place for something that causes disease (flies, rats, etc.) it is a public
nuisance. (Spur v. Del Webb - Feed lots)
Private Nuisance: Substantial impairment of a property owners use and enjoyment of their property.
Public Nuisance: Public interest protects public health, morals, or safety. It is NOT tort designed to protect an
interest in property. It is designed to protect the publics individual rights to public goods: clean air, water, etc.

C. Vicarious Liability
A plaintiff may hold a defendants employer vicariously liable under the doctrine of respondeat superior.
An employer can be held liable for the negligence of its employee if the employee is acting within the scope of his
employment when the negligence occurred.
o Generally, according to the coming and going rule, an employer is not held liable for any damages caused by its
employees negligence while commuting to and from work because this is not in the employees scope of
employment.
o As long as an employee is not frolicking, an act that is for mere personal use, and he is simply detouring, he is
considered as acting under the scope of employment
Sword v. NKC Hospitals, Inc.- Can a hospital be held vicariously liable for the actions of an independent contractor?
Rule (1) Restatement (second) of agency One who represents that another is his servant or other agent and thereby causes a third
person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the
lack of care or skill of the one appearing to be a servant or other agent as if he were such
Rule (2) Vicarious liability
Application - Subjective + Objective standards to prove Ps belief in what the contractors role is. The P must have reasonable reliance
to believe the independent contractor was under the employment of the hospital. (1) Did the hospital give notice that he wasnt? -They
didnt (2) Did the patient have no reason to know? Or not know? She shouldve been informed and had no reason to know. The
contractor had a sufficient relationship with the hospital - so Hospital can be held vicariously liable.
Taber v Maine,
Rules:
Federal Torts Claims Act government is liable for claims against employees when the actions are within the line of duty
Common Law of CA 9th circuit focuses on federal territory- but in absence of developed law in Guam, we look to the law of
California. (California has most developed and expansive state law)
Respondeat superior: employer vicariously liable for employees action. Anything arising under the scope of work. In Rodgers and
Childers cases, both were drinking on workplace- workplace areas (dorms) and were considered within scope of employment.
Application:
Liability is against the government when the employees actions, in the line of duty- within the scope of employment (common law
phrase), injured the plaintiff.
Borderline morale would be a benefit of drinking on-base areas, like dorms, on base beach parties (this case), so they are liable for
these faults.
Example - drinking at a company holiday party and driving home- could lead to the company being liable. If risks are foreseeableputting vicarious liability on the employer- serves as a deterrent for future action
Calabresi on Some Thoughts on Redistribution,

Loss spreading policy: we want to promote legal rules that promote loss spreading. You can spread them in a couple ways.
Interpersonally (could be 1 person= $1,000 or everyone for $3) or temporal (by time) No fault base system= vicarious liability:
Shifts the loss to the person/business who is the best loss spreader
Enterprise liability- shifts the liability to the business/entity that is responsible for the crime. Best at anticipating harms/risks and
best at reducing said harms. Deterrence is most effective when the laws make the enterprise liable.
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Maloney v. Rath
Defendants brakes failed in an accident due to faulty installation.
Issue: Presumption of negligence? Should the driver be held strictly liable? The plaintiff has to argue to the court that they should
adopt strict liability.

Outline TORTS

Final: December 2

Reasoning:
reasonable care argument: that the defendant is held liable for the brakes because she should have known
However, this lets the defendant sue the mechanic for indemnification- this creates an incentive to choose a defendant who can pay
the $ The driver has insurance - you sue her, the mechanic who installed probably doesnt have as deep as pockets compared to
insurance policy. (Better loss spreading)

D. Strict Liability and Negligence: Historical Foundations

- Earlier Developments: Kicking it back to the 17th century
- 1870-1950 shift:
- A Field code developed in 1868-which is the first unified code of civil procedure.
- Morgan Dwyer: Intro to the study of Law: 1948
- This slow/incremental process of the idea of fault became our modern liability claim. (From specific writs actual negligence/trespass claims that are much more broad.) Back in the day if you chose the wrong writ case dismissed - you lose.

III. The Anatomy of Fault

A. The Nature of Negligence
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Due care means that amount of care that a reasonably prudent person would exercise under the circumstances.
The common law duty of due care may be defined simply as the duty to exercise such diligence as would be exercised in the
circumstances by a reasonable prudent carrier.
There is only one degree of care in the law, and that is the standard of care which may reasonably be required or expected under all the
circumstances of a given situation. (Michigan Supreme Court)
When a person is faced with a sudden emergency which is not created by his own negligence, his conduct is to be tested by what an
ordinarily prudent person would have done under the same circumstances and he is not chargeable with negligence for failing to adopt
the most judicious course as disclosed by subsequent events. (Emergencies are special situations and one should not be judged by
hindsight)
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the
conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. (Blyth v Birmingham
Waterworks Co.court decided that company not negligent as they could not have foreseen such extreme wintry conditions. They
behaved reasonably.)
Not all emergencies relieve one of their duty. National Food Stores, Inc., v Union Electric Co. Defendant still liable given that they
breached their duty as a public utility company to adequately warn the plaintiff of impending power failure.
Whenever someone is providing a service or caring for someone else they owe a special duty. (Heaven v Pender) If a company by
virtue of its own charter is placed in a position to its customers that if the company did not use ordinary care in the exercise of its
franchise numerous injuries to person or property could reasonably occur then that is a breach of duty. (National Food Stores Inc.)
Classic formula of duty from Heaven v Pender: whenever one person is by circumstances placed in such a position with regard to
another, that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his
own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to
use ordinary care and skill to avoid such danger.
If a jury could reasonably find that a reasonable actor would have warned or exercised ordinary care in regard to the circumstances
then the question should be left to the jury as a matter of fact and is not a matter of law for the court.
Restatement (Third): an actor ordinarily has a duty to exercise reasonable care when the actors conduct creates a risk of physical
harm

B. The Reasonable Person

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Vaughan v Menlove standard: what would a reasonable person do in the circumstances? An objective standard.
Holmes argued that social utility demands a reasonable standarda uniform standard. We have a need to expect that other members
of our community will meet a certain ordinary standard of prudence and care; otherwise life in society becomes impossible. As a
matter of social welfare and social utility we have to expect and impose by law an obligation of care on all the other members of the
community. (Exceptions for extreme physical disabilities and very young children.)
The law considers what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines
liability by that.
Restatement (Third): An actors mental or emotional disability is not considered in determining whether conduct is negligent, unless
the actor is a child.

Outline TORTS
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Final: December 2

The reasonable man test is also context specific. A departure from the general rule is required where the plaintiff is suffering from
physical infirmities that impair his ability to function as an ordinary man. The proper test to be applied in such cases is that of a
reasonable man under the same disabilities and infirmities in like circumstances. (Memorial Hospital of South Bend v Scott)
I.E. to hold a blind man to a not blind mans standard is unfair. To hold a disabled man to a not disabled mans standard is unfair. It is
ordinary care in the circumstances that needs to be looked at.
The liability of a driver stricken by sudden illness, seizure, or heart failure is based on a negligence standardNOT strict liability.
(Hammontree v Jennerdefendant crashed into bike shop after having an epileptic seizure. Had not had one in years and was treated
for them.) No foreseeable risk here. No act or omission that constituted an unreasonable risk of harm. If someone was normally
epileptic and had regular seizures that would be running an unreasonable risk of harm.
Under generally recognized principles, an operator of a motor vehicle who permits himself to fall asleep while driving is guilty of
ordinary negligence if he has continued to drive without taking reasonable precautions against sleeping after displaying symptoms of
drowsiness or fatigue (Keller v DeLong). An act or omission that constitutes an unreasonable risk of harm.
Can a person be held civilly liable where a mental condition deprives that person of the ability to control his conduct? Widely
accepted rule in most American jurisdictions that the mentally disabled adults are held responsible for the torts they commit regardless
of their capacity to comprehend their actions.
Rationale for imposing liability on people with mental disabilities (1) Meyer Rule: where a loss must be borne by one of two
innocents it should be borne by he who caused the action. (2) Administrability concerns. We want to make sure that people do not
fake a mental disability. (3) We have deterrence concerns. We want to encourage family members to control and care for the IDD
individual. (Gould v American Family Mutual Insurance Co.)
By virtue of their age children have less maturity and are less skillful about judging what risks are reasonable to run. The part of the
brain that develops last is the long-term judgment and impulse control part. The Menlove standard has been amended for children
because of thisthey are not to be held to a reasonable person standard. That said, there might still be some instances (such as
driving a motor vehicle) where children should still be held as a reasonable person with reasonable standard of duty of care. (Dellwo v
Pearsondefendant ran over plaintiffs fishing line with a powerboat and caused injury)
Children under seven years of age are typically thought to be incapable even of negligence.
In Conclusion:
Vaughan v Menlove created a reasonable person standard.
Memorial Hospital of South Bend v Scott demonstrated how it is context specific (particularly with regards to physical disabilities).
Hammontree and Keller distinguished between the running of reasonable and unreasonable risks. Gould explained how liability
applies to those with mental disabilities.
Dellwo explained how children can be considered as reasonable people

C. The Respective Role of Judge and Jury

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Once negligence has been defined by reference to the activities of the reasonable person, one possible approach would be to allow the
jury to decide whether the particular activities of the defendant are within the realm of reasonable care. Who better to evaluate the
characteristics of reasonable care than the jury? Still, courts frequently define negligence more carefully by reference to custom and
judicially adopted standards, as well as statutes and ordinances.
When is it appropriate for judges to establish judicially created rules governing what may or may not constitute negligence in specific
factual contexts?
Even when there is no conflict of testimony, if there are acts and omissions, of which some tend to show negligence, and others do not,
the question whether there was negligence or not is a question for the jury. (Lorenzo v Wirth)
Holmes Common Law: There are areas where the general standard of reasonable and ordinary care gives way to specific standards
that are developed by courts or by the legislature. When the judge takes a question away from the jury and decides it as a matter of
law, it is not a sufficiency of the evidence ruling, it is something else. Once the facts have been found, the next step is did the
defendants acts and omissions in the characterization of the plaintiff add up to the breach of a duty of reasonable care. Holmes thinks
this can be decided either by the jury or the judge. Juries are good at being practical common sensical and representatives of the
judgement of the community. Judges are good as repeat players. They see lots of juries. If they see enough juries decide a set of facts
in a particular way that the judge sees a pattern crystallizing, the judges can decide that it is a matter of law. If the evidence is unique
or new then that is best left to a jury.
Holmes loved taking cases away from juries. Cardozo advised of the need for caution in framing standards of behavior that amount to
rules of law.
One of Holmes more infamous decisions (Baltimore & Ohio Railroad Co. v Goodman)He essentially says that the question of due
care is generally left to the jury. BUT when we are dealing with a standard of conduct, and when the standard is very clear it
should be laid down once and for all by the Courts. (Driver should have been aware that going on a railroad track could result in his
death)

Outline TORTS
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Final: December 2

Nixon on Changing Rules of Liability in Automobile Accident Litigation

Now in the modern era with all this innovation, complexity, and the speed and therefore the uncertainty of factsthe number one job
of the defense counsel has become taking the case away from the jury. The nature of automobile accidents has changed. The very
difficulty of determining what happened is an important aspect of these cases. At the end of the argument, he explains that (much as
Holmes did) when a judge has discovered through repeated observation that certain conduct is blameworthy, he may rule that certain
conduct is negligent. If an appellate court later affirms that decision it becomes law in certain jurisdictions.
The issue of whether a duty is owed is a question of law. (Judge)
The issue of whether a defendant has breached a duty owed is a question of fact. (Jury)
Defendant does not have a duty to protect against an open and obvious hazardone that is open and obvious to all who potentially
encounter it. (Broussard v State)
A defendant has a duty to protect against unreasonable risks. The fact-finder determines which risks are unreasonable.

D. Negligence and Cost-Benefit Analysis

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When there is a duty to adopt all reasonable precautions to minimize perils, there is no evidence that this duty was ignored, and it is
only through some extraordinary casualty that is not within the area of ordinary prevision then negligence cannot be imputed. (Adams
v Bullockboy swinging wire over side of bridge hits street wire)
Essentially: there is no way to protect against all ways in which harm can befall someone. To hold someone or a company liable when
they took ordinary caution measures would be to charge it as an insurer.
o Restatement (Third): A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary
factors to consider:
(1) the foreseeable likelihood that the persons conduct will result in harm,
(2) the foreseeable severity of any harm that may ensue, the burden of precautions to eliminate or reduce the risk of harm.
o Judge Hands Conway decision: The degree of care demanded by a person by an occasion is the result of three facts: the likelihood
that his conduct will injure others, the seriousness of the injury if it happens, the interest which he must sacrifice to avoid the risk.
o In Judge Hands Carroll decision he applied a cost benefit analysis stated in algebraic terms: Liability depends upon whether
B(burden) is less than L(injury) multiplied by P(probability). Whether B is less than PL.
o Hand was getting at the economic meaning of negligence. He multiplies the cost of an accident by its probability to yield a measure
of economic burden without prevention measures. That is, the cost of the accident multiplied by its probability yields a measure of
economic benefit to be anticipated from incurring the costs necessary to prevent it.
o If the cost of safety measures or curtailment (whichever is lower) is more than the benefit in accident avoidance to be gained by
incurring that cost, society would be better off in economic terms to forgo prevention.
If safety measures or curtailment are more expensive than the tort claims that follow, wouldnt they be better off foregoing the
accident prevention?
o When the cost of an accident is less than the cost of prevention, a rational, profit-making enterprise will rather pay tort judgments to
the accident victims than incur the larger cost of avoiding liability.
o Overall incurring the higher cost would damage economic welfare.
o Counterargument: Posners assessment is not that simple. How do you quantify a life lost? How do you measure the inconvenience
of only having expensive cars?
o In light of all this cost-benefit analysis, Adams v Bullock is interesting. It simply isnt economically feasible for the defendant to have
protected against all possible ways one might kill themselves with these wires.
o A response to Posner is that the common law is more moral than economic. He would likely reply that economic efficiency is a moral
concern.

E. The Role of Custom

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The argument for deferring to the industry custom as setting the standard of care is an argument in favor of institutional competence
the industry knows best about itself.
Deferring to custom in industry is also an administrability argumenteveryone knows what the standard is.
The evidence of custom satisfied the standard of reasonable care (Lehigh & Wilkes-Barre Coal Co. v Hayeskid killed in coal mine
because no warning came; custom)
Following an approved method is merely evidentiary and is not conclusive on the question of ordinary care. The standard of care is
ordinary care under the circumstances, not what others have done under like circumstances. Habitual practice cannot and does not
make a negligent act an act of due care and caution. What usually is done may be evidence of what ought to be done, but what ought
to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. (La Sell v Tri-States Theater
Corporation)

Outline TORTS
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Final: December 2

Wigmore on evidence (he is an authority): the proper method is to receive it with an express caution that it is merely evidential and
is not to serve as a legal standard.
Evidence of modification or repair after an incident is usually inadmissible. We want to encourage people to fix problems. (Allowed to
be introduced in La Sell as evidence of an alternative, safer, design)
If an employee violates an employers ordinance, is the employee negligent and therefore the employer vicariously negligent due to a
breach of duty of reasonable care as established by the employers rulebook? Yes. Such a rule made known to employees creates a
duty of obedience. Especially when designed for the protection of others.
What are the geographic limitations of custom?
The rule in Small v Howard had been that one who is a medical practitioner in a small village is bound to possess that skill which
physicians and surgeons of ordinary ability and skill practicing in similar localities, with opportunities for no larger experience,
ordinarily possess.
New rule- is more that medicine has developed in such a way that the fairness argument that used to exist is no longer relevant.
In short, the boundaries of custom are less of an issue now. IF you are a specialist/expert there is no boundaryyou are an expert
broadly.
Most courts have adapted a national standard for measuring custom instead of a local standard. (This follows the path of Brune v
Belinkoff)
A doctor has a duty to disclose all reasonable information about a proposed treatment to his patients. (Canterbury v Spence)
Patient has a right to know what is being done with their body and to assess.
Unreasonable to expect doctors to go over every risk. A risk is material when a reasonable person, in what the doctor knows or should
know to be the patients position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to
forgo the proposed therapy. (Canterbury)
The scope of disclosure is all the material that would contribute to a reasonable choice by a reasonable patient. (Canterbury)
Exception to the general rule of disclosure: Emergency situation OR when a risk-disclosure poses such a threat of detriment to the
patient that it might cause them to become so emotional or illogical or psychologically damaged that they would not be able to make a
rational decision. (Canterbury)
An objective test: what would a prudent person in the patients position have decided if suitably informed of all perils bearing
significance. (used here but widely rejected)

F. The Role of Statute

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Negligence per se for violation of a statute requires- it to be shown that the statute sets out a duty for the protection of others.
If violation of a statute is a contributory cause to plaintiffs injuries, the case may be dismissed. Not even an issue for a jury. If a
statute is violated it is not a matter of fact. (Martin v Herzog)
Where a statute or ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform
that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or
ordinance was designed to prevent, and which were proximately produced by such neglect. (Osborne v McMastersclassic
formulation of the negligence per se doctrine.)
If a statute is violated because it would have been more dangerous to follow the statute then that does not bar recovery. A legislature
could not have intended to pass a law that puts people at risk. Here the statute was a general rule of conduct rather than a standard of
care. (hoops) One who violates a statute is still at fault if he does so without good reason. (Tedla v Elman)
There may be excuses for the violation of a statute so that recovery is not barred. (Combs v Los Angeles Railway Corp.defendant
was trying to climb steps of trolley, not riding on them in violation of statute, at time of accident)

IV. Proof of Breach:

A. Res Ipsa Loquitur
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Fair amount of give in regards to how much inference courts give in deciding breach. In Winterowd the theory that defendant
breached a duty of care to the plaintiff could be inferred from the fact that the defect that caused the injury was observable and of
recent origin. The failure to inspect was the breach. In contrast in Welsh v. Cornell, no evidence that defendants negligence caused
the injury to the plaintiff. No evidence that injury was caused by the omission of the defendant to discharge some duty that rested
upon him.
Ristau v. E Frank Coe Co. marks the transition to the very specific Res Ipsa Loquitor.
Res Ipsa Loquitor: The distinctive function of the rule is to permit an inference of negligence from proof of the injury and the
physical agency inflicting it, without proof of facts pointing to the responsible human cause. Reurat v. Stevens.
Res Ipsa Loquitor is a crystallized version of circumstantial evidence--there are certain types of injuries that necessarily create the
existence of defendant negligence.

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Final: December 2

3 Elements of Res Ipsa Loquitor:

(1) the accident must be of the kind that does not ordinarily occur in the absence of someones negligence,
(2) it must be caused by an agency or instrumentality within the exclusive control of defendant (now broadened to ultimate
responsibility), and
(3) it must not be due to any voluntary action on the part of the plaintiff. Colmenares Vivas.
Res Ipsa Loquitor- actually puts the burden on the defendant to disprove breach.
Majority view treats RIL as creating some evidence of breach. Some jurisdictions treat it as a rebuttable presumption. In some
exceptional cases it will actually shift burden of persuasionYbarra (unconscious patient in medical malpractice suit. Says this is
just the kind of victim RIL was designed to protect. Puts burden of production on the parties more likely to have access to the
evidence.)

V. Causation
A. Cause-In-Fact
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2 types: But For Cause and Proximate Cause

But for causationbut for this the injury wouldnt have happened.
Proof by preponderanceit is merely to create a reasonable set of probalistic inferences.

B. Multiple or In-Determinate Defendants

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Joint contribution, though not in concert, still basis for joint liability. Corey.
When we have one plaintiff and multiple defendants who potentially contributed to the injury, the court shifts the burden on the
question of cause and fact to the defendant. They are better suited to prove if they werent the one who is liable. Summers v. Tice.
Each should be liable because to hold otherwise would be to exonerate both.
Corey: Collective harm of defendants to single plaintiff means both joint liability.
Summers: Contemporaneous negligence of two defendants to one plaintiffboth jointly liable unless one can prove he was not a
cause or contributor.
Sindell: Deals with multiple defendants vs. class of plaintiffs. Problem is matching. Read it narrowly to suggest that burden shifted
to defendants to prove their product wasnt the one that caused the injury.
Concert of Action:
(1) Small number of defendants,
(2) Whose actions resulted against a single plaintiff,
(3) over a short span of time,
(4) in which all of the individuals are direct participants in the acts that caused the damages or encouraged or assisted the
party who caused the injuries.
Market Share Liability:
(1) Defendants must constitute substantially all of the market,
(2) product must be fungible (interchangeablecomprised of the same components),
(3) defendants must all have been in the market at the time surrounding the incident,
(4) inability to point out a specific tortfeasor must not be the plaintiffs fault.
This theory allows plaintiff to establish case against defendants for injury from a product event when plaintiff does not know which
manufacturer created the product.
Causal Link
Causal link//but for cause//proximate causethree types of causation
Causal linkan accident that might have increased the chance of injury.
When conduct falls below the standard of reasonable care what makes it negligent conduct is that it increase the risk of injury.
Foreseeability, Duty, Proximate Cause, & the Scope of Liability.
Zone of Apprehension: Just because a duty of care is relational doesnt mean you have to foresee the specific people. You owe a duty
to anyone within the zone of reasonably foreseeable risk you create. Palsgraf.
Foreseeability is a way of circumscribing the duty of care.
Polemis Rule: so long as harm is direct we are going to hold you liable for whatever harm occurs. Overturned in Wagon Mound 1.
Court there says the harm must be foreseeable.
Foreseeability: At the moment defendant acted was the conduct likely to produce the harm suffered.
Intervening Events and Superseding Causes
Its not just that negligence is unreasonable risk taking, its unreasonable risk taking of the very risk that the third party will do what
they did. (Vasely dude who served drunk driver knowing he had to go down mountain.)

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Final: December 2

Suicide is generally considered a deliberate intervening act. Edwards - BUT it Will not break chain of causation if it was a
foreseeable result of the defendants tortious conduct. Edwards - Suicide was foreseeable when you give pills w/o proper evaluation
+ checkup after.
When the intervening cause is itself the foreseeable harm that shapes the duty imposed, the defendant who fails to guard against such
conduct will not be relieved of liability. Bell v. Board of Education (pizza shop visitrape case)
Contributory Negligence and Comparative Fault
Contributory negligence is a breach of a duty you owe to yourself. To show that a plaintiff was contributory negligent, a defendant
must show that the plaintiff knowingly and unreasonably subjected herself to harm
Rule: If plaintiff contributed at all generally not allowed to recover.
Had plaintiff been acting with reasonable and ordinary care would they have managed to avoid their injury?
HOWEVER - Pay attention to causation: Smithwick dude goes to wrong end of platform he had been warned against going there
because of icy floors, gets injured when brick wall falls on him.
Even though he may have been contributorily negligent in breaching duty of care to himself it wasnt related to the injury he suffered.
Boulevard rule - Maryland accident case - if you are even 1% negligent you cannot recover. The couple crossing the road did so
with amazing caution, but were still in the wrong, so they couldnt recover.
Contributory negligence has been limited.
When the claim is based on the violation of a safety statute then contributory negligence does not act as a defense as the statute was
meant to protect against the risk.
Last Clear ChanceAmeliorating doctrine. A plaintiff in danger due to his own negligence can still recover against a negligent
defendant if the defendant is negligent in failing to avoid the injury and either knows of the peril or was negligent in avoiding it.
A plaintiff who by the exercise of reasonable care could discover danger and avoid it but fails to do sois inattentivemay still
recover from a defendant but only if the plaintiff can show that the defendant either realized or had reason to know of the inattentive
plaintiff.
Comparative Negligence:
Comparative negligence is a policy that allows courts to apportion damages based on the proportionate fault of each party. A plaintiffs
award will be her proven damages reduced by the percentage of her respective negligence
TWO TYPES OF COMPARATIVE NEGLIGENCE.
Pure: Simply weighs the total comparative negligence of the parties. A jury appoints the damages without regard to whether the
plaintiffs portion of the damages is equal to or greater than the defendants. Here a plaintiff who was more than 50% at fault could
recover if the plaintiff started out with 100% of the damages.
Modified: A plaintiff charged with 49% of the negligence could recover 51% of the damages, whereas a plaintiff charged with 50% of
the damages would recover nothing at all. Here the plaintiffs negligence is disqualifying only if it reaches half or more of the
culpability or causation.
Assumption of Risk
Waivers of liability are ordinarily enforceable: There are exceptions
When the protected party intentionally engages in acts of reckless, wanton, or gross negligence.
Grossly unequal bargaining power
When the transaction involves the public interest.
Totality of the circumstances test? When a waiver would be patently offensive. Would have to be an essential service. Say the only
OBGYN in the middle of nowhere with hundreds of miles separating the woman who is essentially forced to sign the waiver from an
alternative service provider.
Unless the language is unmistakably clear the exculpatory clause is invalid. Gross.
Broad Takeaways:
(1) the enforceability of these agreements depends upon the jurisdictions general disposition toward people contracting away
tort liability,
(2) this is the first form of assumption of risk.
It is express assumption of risk. An affirmative defense by which defendant is relieved of tort liability through contract.
Express Assumption of Risk: A contracted for waiver of liability - signed documents. (Ex. Gym memberships, liability waivers for
skydiving. These waivers NEED to adequately warn of impending dangers.
Implied Assumption of Risk:
Primary: The defendant is not negligent because they owed no duty of care to the plaintiff or they did not breach the duty owed.
Secondary: (1) Qualified: Where you run into a building that is burning due to your landlords negligence to retrieve your favorite
hat. In this case you breached a duty of reasonable care owed to yourself. In short, qualified secondary implied assumption of risk IS
contributory negligence. (2) Pure: If you knowingly encounter a risk created by the defendants negligence but you do so for a really
good reason (replace aforementioned hat with baby. It would be unfair to bar you from recovering. Running of a reasonable risk
presented by the defendants negligence.

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Final: December 2

VI. Products Liability

A. Development of Products Liability Law
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Winterbottom: One could not sue in negligence in tort on a duty beyond privity. A manufacturer was not under a duty to the remote
user only to the party under which they had a contract in privity.
Macpherson: Changes the above. Where danger is foreseen a liability will follow and this is not limited to inherently dangerous
things. If a product is made dangerous through negligence liability attaches. A negligent defendant is liable to all those foreseeably
endangered by his act of negligence. Defendant must have been negligent in a way that his or her negligence made the article
dangerous.
Escola: Majority opinion with Gibson tries to keep within negligence doctrine using Res Ipsa Loquitor.
Traynor in concurrence sets foundation of modern day products liability law. Says a manufacturer incurs an absolute liability when
the item he placed on the market proves to have a defect injurious to human beings.
Risk of injury is inevitable so the cost should be built into the cost of the item. (Make product more expensive to cover liability cost
Makes loss spreading argument that it makes most sense to place burden on people best equipped to absorb that loss (manufacturers).
Argues that both contract law and criminal law in regards to adulterated foods operate on a strict liability standardso torts should
too.
402(a)Product need have a defect AND be unreasonably dangerous.
Restatement (Third): One engaged in the business of selling or otherwise distributing products who sells or distributes a defective
product is liable for the harm caused by the defective product.
Defects:
(1) a manufacturing defect for which there is strict liability,
(2) a design defect where the foreseeable risk of harm could have been adopted by a reasonable alternative design,
(3) defective because of inadequate warnings or instructions when the foreseeable risk of harm could have been avoided by
reasonable instruction or warning.
Component parts and raw materials are includedone can be strictly liable for a defect here. Does NOT include human blood or
tissue.
Includes tools provided by bailees to bailors (if you go apple picking and they give you a ladder and it is defective and youre injured
there is strict products liability)

B. Products Liability
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Manufacturing Defect: When the product departs from its intended design though all possible care was exercised in the preparation
and marketing of the product. Elements of a manufacturing defect are:
That product was defective.
That defect existed when product left manufacturer's control.
Defect proximately caused the injury to the plaintiff, a reasonably foreseeable intended user.
To prove existence of a defect or that defect existed while the product was in control of manufacturer a plaintiff may use direct
evidence (expert testimony) or circumstantial evidencenot required to prove a specific defect, just need prove that something was
wrong. The mere occurrence of an accident and injury is not sufficient.
In determining whether defect was basis for the accident, jury can weigh usage, age, design, etc
Plaintiff can also prove defect by negating other causes of the failure of the product.
Design Defect:
Different from manufacturing defect in that they cannot be evaluated against the intended design of the product.
The defect is inherent in the design. The design itself caused the injuries.
Not a departure from the design.
Two approaches to defining design defect
Consumer expectation analysisRisky in a way beyond the contemplation of an ordinary consumer.
Consumer expectation test: Establishes the products risk and utility, and the inquiry would then be whether a reasonable consumer
would consider the product design unreasonably dangerous.
Risk-Utility TestRisk doesnt outweigh benefit.
In order to prove a design defect plaintiff must prove that product is unreasonably dangerousthe 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
the community as to its characteristics.
In some situations the consumer is unable to form expectations (complex product) and so the risk-utility test can be incorporated.
Potter v. Chicago Pneumatic Tool.

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Final: December 2

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Alternative design theoryIf there is no viable alternative design then we cant be liable. REJECTED.
State of the Art argument: Some companies say if design is state of the art then it cannot be defective. Argument is REJECTED Still held strictly liable.
o Failure to Warn
Hobart v. Liriano: Is there a duty to warn? YES. Obvious Danger
(1) A warning can do more than exhort its audience to be careful.
(2) It can also affect what activities the people warned choose to engage in
Reasoning -
(A) That it is feasible to reduce the risk with safety guards.
(B) That such guards are made available with the grinders, and
(C) That the grinders should be used only with the guards.
- The warning may not be a matter of law but a leverage to ask the company about the risks and for possible safety equipment!
Deterrence
- Prima facie case arose from the strong causal linkage between Hobarts negligence and the harm that occurred.
- Prima facie - must be rebutted by defense - if not - P wins.
Perez v. Wyeth Laboratories Inc. (Supreme Court of New Jersey, 1999)
- New rule: Manufacturers of medical drugs have a duty to warn in their advertisements. FDA approval is no longer appropriate
warning for physicians, they also need to properly warn the patient about side effects in the drug.
- Learned Intermediary rule: Based on doctor-patient relationship the way prescription drugs come to patients. (OUTDATED DUE
TO SOCIETAL CHANGES)
- Restatement (3rds of Torts) Products liability: Section 6(d)(1) sets forth the traditional rule of the learned intermediary that drug
and medical device manufacturers are liable for failing to warn of a drugs risks only when the manufacturer fails to warn the healthcare provider of risks attendant to a specific drug.

C. Products Modification or Alteration:

-Distinct question concerns the liability of a manufacturer from harm caused by a product that has been modified after it leaves the
manufacturers hand!
Restatement subsequent product alteration affects the issues of defectiveness and causation in much the same way as does product
misuse.
Information-overload the majority of society phases out safety warnings.

VII. Intentional Torts:

A. Battery
Garrett v. Dailey
Rules-
Battery is the intentional infliction of a harmful bodily contact upon another.
(A) The act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a
third person, and
(B) The contact is not consented to by thereto the others consent thereto is procured by fraud or duress, and
(C) The contact is not otherwise privileged.
Clause (a) of Character of actors intention It is not enough that the act itself is intentionally done. Such realization may make the
actors conduct negligent or even reckless, but unless he realizes that to a substantial certainty, the contact or apprehension will result,
the actor has not that intention which is necessary to make him liable under the rule stated in this action
Liability of children w/intentional torts - the child would still have to have knowledge that injury would occur - necessary intent will
be established.
Torts Intent (A) the person acts with the purpose of producing that consequence or (B) The person acts knowing that the
consequence is substantially certain to result.
Application - knowledge that offensive contact can cause injury - necessary intent is established.

B. Self-Defense
Courvoisier v. Raymond
Rule:
Self-Defense (CL):
D acted honestly in using force
Ds fears were reasonable under the circumstances (objective)

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Final: December 2

Ds means of force were reasonable (objective)

Restatement (Second) 63 = The person threatened is entitled to use such force as reasonably appears necessary to defend themselves
against the attack
Application:
Trial court erred in not instructing the jury on the justification of self-defense
The jury could reasonably believe that the defendant would have been justified in shooting one of the rioters; this made it important to
determine whether the defendant reasonably mistook the plaintiff for one of the rioters (utilizing Morris v. Platt)
Mistaken belief can still be justified by self-defense if such a belief is deemed reasonable by the court (or jury)
Conclusion:
The jury should be given the opportunity to determine if defendants actions were justified as self-defense; judgment reversed

C. Defense of Property
Katko v. Briney
Rules:
Defense of Property
Restatement of Torts he cannot gain privilege to install for the purpose of protecting his land from harmless intruders, a mechanical
device whose only purpose is to inflict death or serious harm upon on any who may intrude.
Harper and James Law of Torts may not arrange his premises intentionally so as to cause death or serious bodily harm.
Prosser on Torts spring guns and other man-killing devices are not justifiable against a mere trespasser, or even a petty theft.
App:
T.C. - Instruction (2) history of use of spring guns and stated under the law their use was prohibited except to prevent the commission
of felonies of violence and where human life is in danger. (5) You may use reasonable force to protect property, but such right does not
include deadly force or force that could inflict GBH. (6) Property owners cannot intentionally injure a trespasser by means of force
that either takes life or inflicts great bodily injury.
Legal principles stated by T.C. are well established and supported by the authorities cited and quoted supra.
Conclusion: Affirmed.

D. Assault
White v. Sander
Rule:
AssaultA. Needs an intent to injure
B. Needs awareness of potential dangers of action
App:
D did not have intent to injure female plaintiff - intended to throw stone into home of F.H. Sander to spook/injure him?
D was not aware of potential dangers caused by female ps medical condition.
Conclusion:
W/O elements to show intent/awareness - D is not responsible for damages.
Brower v. Ackerley (Civil Assault) + Negligence + Intentional infliction/ Outrage (next case)
Rule:
Assault Restatement 31 of TortsElements + Necessity
1.

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
2. gist of the threat has to be immediate in civil cases.
Words alone are not enough to make an actor liable for assault unless together with other acts or circumstances they put the other in
reasonable apprehension of an imminent harmful or offensive contact with the person.
Application:
The phone threats may have been frightening, but were not accompanied by circumstances indication that the caller was in position to
reach Brower and cause damages. There was no imminent danger.
Ex. of immanence - Your money or your life - these words alone are enough - because of the imminent danger of suffering GBH.

E. Intentional Infliction of Emotional Distress (Outrage)

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Final: December 2

Brower v. Ackerley (Intentional Infliction of Emotional Distress) - Outrage

Rule:
(1) Extreme and outrageous conduct
(2) Intentional or reckless infliction of emotional distress
(3) Actual result to the plaintiff of severe emotional distress
Restatement -Severe distress must be proved; but in many cases the extreme and outrageous character of the ds conduct is in itself
important evidence that the distress has existed
o Objective symptomatology- everyone would recognize this as a symptom of the conduct being performed on the person (being
scared from threatening phone calls) applies to the tort of negligent infliction of emotional distress, no court has incorporated this in
the tort of outrage.
Application:
Cases where the first two requirements are satisfied, ordinarily go to a jury so long as the court determines the Ps alleged damages are
more than mere annoyance, inconvenience, or normal embarrassment that is an ordinary fact of life
Restatement -Severe distress must be proved; but in many cases the extreme and outrageous character of the ds conduct is in itself
important evidence that the distress has existed.
o A jury in this case could conclude that Browers description of his acute and enduring anxiety that he experienced more emotional
distress than a person should ordinarily be expected to put up with as a part of the price of living among people.
GTE Southwest, Inc. v. Bruce (Emotional Distress)
Rule:
o To recover for intentional infliction of emotional distress:
(1) The D acted intentionally or recklessly
(2) The conduct was extreme or outrageous
(3) The actions of the D caused the p emotional distress; and
(4) The resulting emotional distress was severe. NO reasonable person could endure it
o Restatement 2nd of torts the outrageous behavior can arise out of an abuse of the actors position of power relative to others.
Thus, to establish a cause of action for intentional infliction of emotional distress in the workplace, an employee must prove the
existence of some conduct that brings the dispute outside these out of an ordinary employment dispute and into the realm of extreme
and outrageous conduct.
Supervisor/supervisee relationship plays a role in determining if conduct is extreme and outrageous. Abuse of power is a significant
factor.
Application:.
Employers are sometimes not liable for behavior of employees when the conduct is ordinary in that jobs work disputes or when the
conduct is necessary to properly run the business.
However, Ds employees behavior was intentional, outrageous, caused PTSD, very severe, arose from the scope of employment, and
even though it was not the will of the company or for his personal amusement, the company is still liable. (Still in the scope of
employment)
Employees suffered PTSD, required medicine - no reasonable person could endure the harassment.

F. False Imprisonment

McCann v. Wal-Mart Stores

Rule:
Restatement section 40 mere threats of physical force can suffice as confinement
Generally, confinement physical barriers or physical force, much less can suffice though.
Confinement can also be based on a false assertion of legal authority to confine.
Application:
A reasonable jury could conclude that Wal-Marts employees intended to confine the McCanns within boundaries fixed by WalMart.
Evidence shows that the employees blocked the entrance, physically.
The threat of police was enough to induce a reasonable person to believe that they would be restrained physically if they sought to
leave, or that the store was claiming lawful authority to confine them until the police arrived, or both.
Holding:
The Maine law of actual physical threat is too broad (Walmarts defense) - Knowlton was essentially overruled
Affirmed the damages to P.

G. Trespass to Chattels and Conversions

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Final: December 2

Pearson v. Dodd
Rule:
Conversion is the intentional exercise of control or dominion over a chattel that interferes with anothers rights to control it with
sufficient severity that the party exercising such control may fairly be required to pay for its full value
The general rule has been that ideas or information are not subject to legal protection, but the law has developed exceptions to this
rule.
Where ideas are formulated with labor or inventive genius, as in the case of literary works or scientific researches, the are protected.
Most distinctive feature of conversion = is its measure of damages, which is the value of goods converted.
Conversion v. Trespass of Chattels - key distinction - remedy. Ex of Trespass damages in the borrowing of a car/returned late = lost
wages. The remedy in conversion (car returned months later or banged up) = market value of objected converted - value of the car at
the time it was borrowed.
Application:
The interference with Plaintiffs use of the files was not so severe as to warrant payment for their entire value. The files were removed
at night, photocopied, and returned to their usual place. The interference with a Plaintiffs use must be far greater for the tort of
conversion, which necessitates an award of the entire value of the property in question.
Moore v. Regents of the University of California
Rule:
That no action based on a theory of conversion may be prosecuted where the subject matter of the allegation are excised cells taken
from Plaintiff in the course of a medical treatment; however, that an action may be based on theories of breach of fiduciary duty or
lack of informed consent.
Application:
A tort of conversion occurs when personal property of one person is interfered with by another with regard to possessory or ownership
interests.
In this case the Plaintiff argues that the matter taken from his body belonged to him and that he did not authorize the Defendants to
use the excised material to profit.
Conversion is a strict liability tort which subjects innocent third parties to liability for acts which may not be under their direction and
control.
The court found that the breach of fiduciary duty theory and the lack of informed consent theory were better suited to protect the rights
of patients. Thus, the Court declined to extend conversion liability in this type of suit.
CompuServe Inc. v. Cyber Promotions, Inc. and Note
Rule:
Electronic signals sent via a computer are sufficiently tangible to form the basis of a cause of action for trespass to chattels, and
interference therewith can be actionable.
Application:
Dispossession is only one example of an occasion in which trespass to chattels has occurred. Such a trespass may also be found when
the chattel is damaged or devalued, the possessor is deprived of its use for a substantial period of time, or bodily harm results from the
interference with the chattel.
This case again addresses the extent of interference with chattels that must exist in order to be actionable. The Court rejected
Defendants argument that a plaintiff must show actual dispossession of the chattel to find for a Plaintiff. Rather, any actionable
interference can give rise to a claim and, as this case demonstrates, an injunction
Distinguishing Conversion from Trespass to Chattels
Factors:
(1) Duration and extent of the interference;
(2) The Ds intent to assert a right inconsistent with the rightful possessor;
(3) The Ds good faith;
(4) The expense or inconvenience to the P; and
(5) The extent of harm to the chattel.
Generally, the greater the degree of these factors, the greater the likelihood that a conversion has occurred. Conversion is an exercise of
dominion or control over the Ps personal property such that the court is justified in requiring the D to pay the P the full value of the property.

VIII. Alternative Compensation Systems

Doing Away with Tort Law

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Final: December 2

Inherent in the design of any compensation system is the need to establish both compensation entitlement boundaries
specifying which victims are entitled to recover benefits, and liability boundaries delineating which parties are assessed to
provide the necessary funds.
Compensation systems usually have a sharp limitation in how much compensation you may receive
By making it no-fault/ easier to receive compensation, the trade-off is lower payouts. You also lose the right to sue in
common law courts.
Coverage formula

A. In workers comp - it is any injury arising from or out of the scope of employment. Lower payouts, but easier to get compensation.
Workers comp is the exclusive remedy for work related injury. It is simply wage-replacement.
Permanent, total disability
Permanent, partial disability
Temporary disability- injury suffered that is subject to therapeutic medicine and resolve itself.

Death