Torts Mini Outline

Danielle Easton
INTRODUCTION
A. Litigation Process
1. Initial Pleadings (Motion to dismiss – procedural, failure to state a claim) -> Discovery
2. Pre-Trial – Can move for Summary Judgement (reasonable minds cannot disagree)
3. Trial – After the prosecution finishes, directed verdict (P did not prove an essential element)
4. Verdict from jury – Judgement Notwithstanding the Verdict – JNOV (judge gets jury’s verdict on
record for the appeals court but defers to his own judgement)
B. Functions of tort law
1. Corrective Justice: To right a wrong, monetary compensation
2. Optimal Deterrence: help prevent future torts by threatening potential wrong doers
3. Loss Distribution: sharing the burden of compensation (ex. With insurance companies)
4. Compensation: promote compensation of those who have suffered injury
5. Redress of Social Grievances: ex. Individuals against authority or corporations, vicarious liability

INTENTIONAL TORTS
A. Battery
1. Rule: A person is held liable for battery if he or she has acted with intent to inflict a harmful or
offensive contact AND has inflicted an offensive contact either directly or in-directly.
2. Intent: Intent to make contact or substantial certainty of such contact.
a. Transferred intent – intend to make contact with A but make contact with B
b. Single Intent – just intent to make contact
c. Dual Intent – intent to make contact & that the contact is harmful/offensive
3. Conduct: Any voluntary act that is a harmful (injures, disfigures or impairs the body) or offensive
(offend a reasonable person’s sense of dignity) contact
a. Ds conduct directly or indirectly brings about the injury. (sets an object in motion)
b. Extends to objects closely identified with the P, clothing, held object, etc.
4. Result: Harmful/offensive conduct does in/directly occur.
B. Assault
1. Rule: Assualt occurs when the Ds acts (attempting to or offering to strike) intentionally causes the
victim’s reasonable apprehension of immediate harm/offensive contact
2. Intent: Intent to cause harmful/offensive contact or imminent apprehension of some sort in P
a. Transferred: You meant to commit a battery but you missed – assault
3. Conduct: attempting to or offering to strike, actual physical contact not needed, ability to carry out the
act not needed – only the Ps mindset matters.
a. Words alone do not constitute assault unless there is imminent harm
4. Result: P is put in imminent (no delay) apprehension (not fear, just expect h/o contact) of harm
a. P must be aware of the danger at the time that it occurs
b. P must have apprehension that they will be contacted, not a third person
c. Damages do not have to be proven, P can recover nominal damages
C. False Imprisonment
1. Rule: A person is liable for false imprisonment if he wrongfully and intentionally confines another in
a particular space or vehicle against her conscious will by means of force or threat of imminent force.
2. Intent: The plaintiff must show that the defendant intended to confine him or at least knew with
substantial certainty that the plaintiff would be confined. The tort of false imprisonment cannot be
committed on mere negligence.
3. Conduct: False – Wrongful/Illegal
 a. Confinement: Boundaries – place of confinement is board, being prevented from leaving an area,
confinement must be TOTAL with P having no reasonable means of escaping
i. The imprisonment must be non-consensual
ii. The P must know of the confinement, must be either aware of the confinement or must suffer
some actual harm (if P is confined while sleeping & suffers physical harm, P can recover for
the physical harm
b. Means of Escape: Reasonable way out & P knows -> Not FI, P knows of a way but it is
dangerous/offensive -> FI, there is was reasonable way out but P doesn’t know -> FI
4. Result: To be liable D must be an active participant in the confinement (giving info to other Ds does
not count)
a. Damages: Mental harm caused by a restraint of the freedom to move around or physical harm
caused by the confinement
5. Defenses:
a. Shopkeeper’s Privilege: a person can be detained by a merchant in a reasonable manner, in the
vicinity of the premise, for a reasonable length of time on the grounds that there was reason to
believe they were stealing.
b. Consent
c. Defense of Person or Property: restraint or detention, reasonable under the circumstances and in
time and manner, imposed for the purpose of preventing another from inflicting personal injuries
or interfering with or damaging real/personal property in one’s lawful possession or custody
6. Not an Excuse: mistaken identity or good faith that the confinement was justified
D. Intentional Infliction of Emotional Distress
1. Rule: There is IIED where one intentionally/recklessly acts in an extreme and outrageous manner
which causes severe emotional harm to another.
2. Intent: D intended to cause ED to P
a. Transferred intent: the notion of transferred intent is applied very limitedly for emotional distress:
it is not transferrable unless the defendant directs his conduct to a member of the plaintiff’s
immediate family and the plaintiff is present and his presence is known.
b. Reckless – D disregards a high probability that his act will cause emotional distress
3. Conduct: conduct that is so extreme and outrageous as to shock the conscious, as to go beyond all
possible bounds of decency & to be regarded as utterly atrocious.
a. Take in the totality of the circumstances
b. Special sensibilities – where D’s knowledge that the other is peculiarly susceptible to emotional
distress, by reason of some physical or mental condition or peculiarity.
c. Mere insults are not extreme & outrageous, exception for common carriers (they have been held
liable for gross insults that would not otherwise be actionable under the common law)
4. Result: Severe emotional distress
a. SEVERE: The law intervenes only where the distress inflicted is so severe that no reasonable man
could be expected to endure it.
b. Emotional distress: includes all highly unpleasant mental reactions, such as fright, horror, grief,
shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea."
5. Defenses: common law ones do not work here, first amendment rights may be permitted.
E. Trespass to Land
1. Rule: Trespass occurs when D intentionally enters P’s land without permission; D remains on P’s land
without the right to be there, even if she entered with permission; or D puts an object P’s land without
permission or D doesn’t remove his object form P’s land after P asked him to.
2. Intent: D must have intended to do the act that causes the intrusion into the land or have known with
substantial certainty that his actions would cause the entry, it is no defense that he thought in good faith
the land was his or another’s. Transferred intent applies.
3. Conduct: intentionally entry to the land or causing another object/person to enter the land.
 a. Intrusion of intangibles: Where the intrusion consists of intangible things such as dust particles,
smoke, vibrations, noise, odors, etc., some courts treat the intrusion as a nuisance rather than a
trespass. Other courts allow trespass charges where significant damage is caused.
b. Extent of Possession: Trespass may be committed on, beneath or above the surface of the earth.
With the exception of flight by an aircraft, unless it enters the immediate reaches of air space or
interferes sustainably with the others use or enjoyment if the land.
c. Accidental entries: do not constitute a claim, someone’s car accidently crashes into your yard bc of
something out of their control (random lion runs in front of car) -> not liable for trespass, however,
they are not held liable for the damages.
4. Result: An entry to the land that was caused by the defendant’s actions or an action that the defendant
set in motion.
a. Unforeseeable harm: A trespasser is liable for harm to person or property caused to the owner even
if the harm is not foreseeable.
b. Damages: it doesn’t matter whether actual damages were caused; trespass to land is complete upon
the defendant’s intentional intrusion and the defendant will be liable for at least nominal damages
for harm to the plaintiff’s right to exclusive possession
F. Trespass to Chattels
1. Rule: Trespass occurs when D intentionally interferes P’s exclusive right to possession of property
without permission
2. Intent: Intentionally intermeddles with the Ps chattel in some way
i. Good faith is no defense, intent can be transferred
ii. Intent to physically interfere with the others use or enjoyment of a chattel
3. Act: Conduct is mere interference, unpermitted use for a substantial period or outright disposition of
the property
4. Result: Interference P must show actual physical damage
a. Unpermitted use for substantial period is compensable harm
b. P can recover for NOMINAL damages when D has intentional DISPOSSESSED P of chattel; but
P CANNOT recover for NOMINAL damages when D has merely interfered with P’s CHATTEL.
G. Conversion (Ds interference with the chattel was so serious so as to warrant requiring him to pay its full
value.)
1. Definition: a voluntary act by one person inconsistent with the rights of ownership of an-other.
2. Intent: D need only have intended to deal with the chattle in the manner in which it was deal.
3. Act: P must show a volitional movement by D of some part of his body that results in a substantial
interference with another’s possession of chattel
4. Result: Substantial dispossession (e.g. destruction of chattels, selling of chattels after they are stolen,
refusing to surrender chattels on rightful demand.)
H. Defenses to Intentional Torts
1. Consent
a. Actual (express): “I agree” – writing, words, expressly given consent
b. Implied: (by law) – if necessary to save a life or other important interest and P is unconscious or
otherwise unable to consider the matter, an immediate decision is necessary, there is no reason to
believe that P would without consent if able and a reasonable person in Ps position would consent
c. Apparent: what the reasonable person would infer from custom or P’s conduct
d. Consent is not effective if:
i. the plaintiff’s consent was procured by fraud
ii. the plaintiff’s consent was given under duress (physical force or threats thereof)
iii. The plaintiff’s consent is ineffective if it is due to a mistake.
e. Consent may not exceed the scope – medical cases where consent is granted for one thing does
not mean that consent is granted for others.
f. Consent to criminal acts:
i. Majority view – Ps consent to a criminal act is ineffective if the act involves breach of the
peace.
 ii. Minority view – Ps consent is valid except when P is a member of a class protected by statute
2. Insanity is not a defense to intentional torts – justifications
a. They still have the mental capacity to make the voluntary act of making contact
b. Public policy- Imposing liability tends to make those who watch over them more careful, If D has
money and she injures the nurse it is unfair to have P carry the damages caused by D, People might
fake insanity in order to avoid liability and Courts do not want civil cases to dive into mental state
3. Defense of Land & Property
a. Non-Deadly Force: an actor is privileged to use reasonable force, not intended or likely to cause
death or serious bodily harm, to prevent or terminate another’s intrusion upon the actor’s land or
chattels
b. Deadly force: if the entrant threatens the possessor or his family with force capable of causing
death or serious physical injury, the possessor is then privileged to use similar force to repel the
attack
i. Force is only justified if, the actor reasonably believes that the intruder is likely to cause death
or serious bodily harm to the actor or to a third person whom the actor is
c. Use of Mechanical Devices or Traps Threatening Death or Serious Bodily Harm: Trespassers-
mechanical devices or traps threatening death or serious bodily harm may not be used against mere
trespassers, even if a sign is present.
d. Recapture of Chattels: Allows the owner to immediately go after someone that has stolen their
property, there must be prompt discovery & prompt pursuit to justify the actions, use of reasonable
force only
4. Necessity: A person may interfere with the real or personal property of another where the interference
is reasonably and apparently necessary to avoid threatened injury from a natural or other force and
where the threatened injury is substantially more serious than the invasion that is undertaken to avert it
a. Public Necessity: Where the act is for the public good (e.g., shooting a rabid dog), the defense is
absolute. I
b. Private Necessity: Where the act is solely to benefit a limited number of people (e.g., the actor
ties up his boat to another’s dock in a storm), the defense is qualified; i.e., the actor must pay for
any injury he causes. Exception: The defense is absolute if the act is to benefit the owner of the
land

NEGLIGENCE -Whether the D could be held liable for a tort cause of action of negligence when X?
1. Rule: Conduct, whether commission or omission that creates an unreasonable risk of harm to others.
The elements that must be satisfied to prove negligence would be duty, breach of duty, cause in fact,
proximate cause and damages.
A. DUTY – Whether the D owed a duty to the P when X?
1. Rule: Duty to conform conduct to a standard necessary to avoid an unreasonable risk of harm to others
2. Differing views
a. Cardozo – D is only liable for the foreseeable risks to a particular P within the zone of danger
(zone within the risk created by the Ds negligence which can operate on the P)
b. Andrews – Any foreseeable danger = duty is owed to everyone, general view, limit it in prox.
cause
3. Affirmative Duties: circumstances under which the D may owe a special duty of care to the P, in
addition to the reasonable person standard. (AD modify the general duty, have a particular duty to do
something now – special relationship)
a. General rule is that an actor whose conduct has not created the risk of harm to the other has no
duty of care to that person unless an affirmative duty is applicable.
i. Good Samaritan Doctrine: Where D was not responsible for Ps predicament & no special
relationship exists, D is under no duty to aid the P.
ii. No duty to rescue trespassers
 iii. No duty for a doctor to render emergency case unless they are grossly or willfully & wantonly
negligent
b. Duty to Rescue –
i. Defendant Created Danger: When an actor’s prior conduct creates a continuing risk of harm
to others, the actor has a duty to exercise reasonable care to prevent or minimize the harm.
ii. Preventing Aid: One who knows or has reason to know that an injured party may receive aid
from a third party and who negligently prevents or disables the third party from giving that
aid, is subject to liability for harm caused by preventing the aid.
c. Gratuitous Undertakings: Situations where originally an actor did not have a duty to aid a party,
but then incurs a duty by rendering assistance. May be liable if they do so negligently.
i. An actor who undertakes to render services to another and, who knows or should know that
the services will reduce the risk of physical harm to the other, has a duty of reasonable care to
the other in conducting the undertaking if: (a) the failure to exercise such care increases the
risk of harm beyond that which existed without the undertaking, or (b) the person to whom
the services are rendered or another relies on the actor's exercising reasonable care in the
undertaking
ii. The actor may be liable for harm caused by an undertaking where: he fails to exercise
reasonable care to secure the safety of the other while within the actor’s charge or by the
actor discontinuing his aid leaves the other in a worse position than when the actor took
charge of him.
iii. Majority View: Made a gratuitous promise – duty to use reasonable care in carrying out that
duty, a promise is not enough
iv. Minority View: D makes a GP, fails to perform where he knew/should that P was relying on
the duty, D can be liable
d. Duty Owed to Third Persons – general rule: no duty to control the conduct of a third person.
Except: a special relation exists between the actor & the third person (duty to control 3rd) OR the
actor and the other which gives the other a right to protection.
i. Ex. of special relationships: (1) a common carrier with its passengers, (2) an innkeeper with
its guests, (3) a business or other possessor of land that holds its premises open to the public
with those who are lawfully on the premises, (4) an employer with its employees who are at
work, (5) a school with its students, (6) a landlord with its tenants, and (7) a custodian with
those in its custody.
ii. A therapist has a duty to warn a potential victim of their patient’s violent intentions if that
victim is foreseeable and the threat was specific enough to ID the potential victim.
e. Duties of Owners & Occupiers: (determined by judge)
i. Invitee: someone who is on the land with some joint purpose of the owner
 Public Invitee: person who is invited to remain on the land as a member of the public
for a purpose which the land is held open. (ex. playground)
 Business Invitee: a person who is invited to enter the land for a purpose directly or
indirectly connected with business dealings with the owner
 Duty Owed: duty to use reasonable care to inspect the land for dangers, to not injure
the invitee and to warn of hidden dangers which the owner knowns or should know
(owner may be required to remedy the danger).
 Ex. trash collectors, mailmen, building inspectors
ii. Licensee: One who enters/remains on the land with the consent (leave or license),
express/implied of the owner.
 Duty: no duty to check premise for dangers, duty not to create traps/allow a concealed
danger to exist, duty to warn of existing dangers.
 Implied by: lack of protest by owner or ignoring a frequent intruder
 Ex. Social guests, fire fighters/police
 iii. Trespassers: One who enters/remains on land of another without the consent/privilege,
express or implied, of the owner.
 Duty: to refrain from intentionally or recklessly injuring, refrain from wanton and
willful misconduct. Generally, no duty to warn.
 Exception: Known trespasser & Frequent T – owner now has a duty to not injure the T
& warn them of traps. (become licensees?)
iv. Abolition of Categories: Above is the classical approach, applied by some JDs. Other JDs
make no distinction between the 3 and apply a rule of reasonable care under the circumstances
to all (modern). Some JDs continue to separate trespassers but apply the rule of reasonable
care under the circumstances to all others (modified modern).
 Factors for determining if a duty of care is owed (modern): foreseeability of harm
to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness
of the connection between the defendant's conduct and the injury suffered, the moral
blame attached to the defendant's conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the community of imposing
a duty to exercise care with resulting liability for breach, and the availability, cost, and
prevalence of insurance for the risk involved. Evidence of the duty but not dispositive.
v. Attractive Nuisance: Allows infant trespassers to recover, when lured onto D’s property by
an attractive condition.
 An owner is subject to liability for harm to trespassing children caused by an artificial
condition if he knows or has reason to know that it is a place where children are likely
to be, it will cause an unreasonable risk of harm to the children, they are unable to
appreciate the risk involved and the utility of the condition staying the same & burden
on eliminating the danger are slight compared to the risk (Hand Formula)
B. BREACH OF DUTY – Whether D breached the duty that he had to P when X?
1. Rule: One most take ordinary prudent care, the kind and degree of care that a reasonable prudent person
would use under the circumstance to prevent the risk of harm, failure to do so results in a breach.
2. Establishing a Standard of Care
a. Objective Standard RPP: A hypothetical construct of an idealized standard of care that all people
should have in similar situations. Any different char./knowledge -> expected to act as a RPP would
in that situation with the same knowledge/ability/skill.
i. Physical characteristics? – expected to act as a RPP with those disabilities
ii. Personal/Mental characteristics? Permanent insanity is no defense. (sudden unforeseen
delusions may be an defense)
iii. Professional standard of care? – RPP with that skill & knowledge
iv. Modified – kid, subjective test unless they are doing an adult activity – rule of 7s – under 7
incapable of negligence, 7-14 presumed incapable, +14 capable
b. Wavering Standards of Care (it is always what a reasonable person would do given the totality
of the circumstances – disability, emergency situation, etc.)
i. Saving a human life - law inherently values human life so gives some exception to those
acting "within the reasonable rescuer" role where they have little time to react in order to
attempt a lifesaving action. Must still use reasonable care
ii. Sudden Emergency Rule - Situation in which an actor must make a virtually instantaneous
decision on how to avoid a peril, still RPP in that situation.
3. Was the risk foreseeable? – Whether there could be any harm associated with the alleged negligent
conduct? (there always is)
a. Sudden unforeseen mental delusions – Breunig
4. Was the risk unreasonable?
a. Calculus of the risk
i. Hand Formula: balancing the factors that determine whether or not a party's conduct creates
unreasonable risks of harm and therefore is negligent.
  Probability of harm x gravity of the loss = MORE than the burden of prevention-
negligent (if actor does not take the prevention)
 PL > B = Duty, PL < B = No Duty
ii. Custom (evidence of Standard of Care – not conclusive in all JDs): regular usage or way of
doing specific things, a practice of some sort, must be widespread, does not need to be
unanimous.
 Certain industry: Boating/trucking/commercial
 Medical Practice: To establish a prima facie case of medical malpractice, P must
demonstrate: the basic norms of knowledge and medical care applicable to general
doctors, proof that and the medical personnel failed to follow these basic norms in the
treatment of the patient and a causal relation between the act or omission of the
physician and the injury suffered by the patient.
1. IF there are two acceptable customs, the jury does not decide which is better —
this decision is left to the medical community and it considered to be an issue of
law.
2. Locality Rule (obsolete mostly): practitioners in small towns do not have to
practice to the same standard of those in large cities.
 Informed Consent (Non-disclosure of a risk, injury & causal relationship between the
two): A doctor proposing a course of treatment or a surgical procedure has a duty to
provide the patient with enough information about its risks to enable the patient to
make an informed consent to the treatment.
1. If an undisclosed risk was serious enough that a reasonable person in the patient’s
position would have withheld consent to the treatment, the doctor has breached
this duty.
2. Most disclose: nature, risk, feasible alternatives of treatment and consequences of
non- treatment
3.Exceptions: where patient is unconscious & incapable of consent and failure to
get consent outweighs the risk of a treatment or risk-disclosure poses a threat of
detriment
4. The injury must be the result of a risk that the doctor failed to disclose.
5. A causal connection exists when, but only when, disclosure of significant risks
incidental to treatment would have resulted in a decision against it.
iii. Statutes – (Depending on the JD may set the standard of care)
 Rationale: all members of society have a duty to obey laws/regs., which were enacted
to protect certain interest/classes/people. Violation of the laws disregards those
protections. Respect for leg., practicability (reliance of public on leg for consistent
rules) and reliance on observance of the statutes.
 Majority: Negligence Per Se – as a matter of law, if court decided that P was so
neligent that reasonable minds could not disagree (blindly walking across the street, try
to sue, no court is going to allow) – violation of statute was negligence as a matter of
law.
 Minority: Prima Facie Negligence – violation of the statute is only an evidence of
negligence. Inference – jury can do whatever they want
 Party Seeking to Employ a Statutory Violation Must Prove: that she was in the class the
statute was intended to protect, (court decides), suffered the type of harm the statute
was intended to prevent (court), and that the violation caused the injury. (Jury Issue)
 Licensing Statutes – lack of a license is not negligence in itself, unless the P can prove
the D did not use the same degree of skill as a licensed person would have.
  Excusal of Statute Violation: violation is reasonable bc of the actor’s incapacity,
inability to comply after use of reasonable care, emergency situations not do to an
actors own conduct, compliance would involve a greater risk of harm and they didn’t
know/shouldn’t have known of the occasion for compliance
iv. Res Ipsa Loquitor – jury instruction – “the thing speaks for itself”: doctrine of circumstantial
evidence that enables plaintiff to prove that defendant was negligent when plaintiff has no or
little direct evidence of such negligence.
 P will use this when they have little/no evidence of how something happened but they
believe it was because of someone’s negligence
 Maj: Inference of negligence & jury can disregard, Min: presumption of Neg. & jury
must find so.
 Elements:
1. Event does not ordinarily occur without negligence
2. Agency within the exclusive control of the D
3. Not due to contributory negligence on part of P
5. “Exception” to Using Reasonable care
a. When preventative measure exposes an even greater risk to others - When an actor's conduct
necessarily creates a risk of harm to two different persons, or classes of persons, both of which
cannot be eliminated by the actor's use of reasonable care, the actor will not be negligent [breach
of duty] for failing to prevent the lesser of the two risks
C. CAUSE IN FACT – Whether the conduct of the D brought about the Ps injury?
1. Rule: the requirement that there must be a relation of cause and effect between defendant’s negligent
conduct and plaintiff’s injury. Determination of the actual cause.
2. But For Rule: An actor’s negligent conduct is a cause in fact if the injury would not occur but for the Ds
negligent conduct
a. Standard of Proof: causation must be proved by a preponderance of the evidence, which means
that plaintiff must establish that defendant’s negligent conduct caused her injury more probably
than not
b. Increased Risk of Harm: where the negligence of the D greatly multiplies the chances of accident
to the P, and is of a character naturally leading to its occurrence, the mere possibility that it
might have happened without the negligence is not sufficient to break the chain of cause and
effect.
3. Loss of Chance of Survival: When a doctor negligently fails to diagnose a patient the reduction in
chances of survival acts a cause of death. You are harmed by the loss of chance of the survival. But for
the negligent diagnoses you would not have had the loss of chance of survival
4. Multiple Ds –
a. When the P sues all of multiple actors and proves that each engaged in tortious conduct that
exposed the P to a risk of harm and that the tortious conduct of one or more of them caused the P's
harm but the P cannot reasonably be expected to prove which actor or actors caused the harm, the
burden of proof, including both production and persuasion, on factual causation is shifted to
the Ds.
5. Joint & Several Liability: each of several Ds can be responsible for the entire loss
i. Joint: means that each of two or more defendants who contribute causally to an indivisible
injury of the plaintiff may be liable for plaintiff's entire damage award.
ii. Several: means that each defendant is liable to plaintiff for only a portion of her award.
b. Multiple Sufficient Causes: If multiple acts occur, each of which alone would have been a factual
cause of the physical harm at the same time in the absence of the other act(s), each act is regarded
as a factual cause of the harm.
c. Two methods of proving multiple sufficient causes:
 i. Indeterminate Causes (alternative liability): Where a group of people act in concert
causing the injury to the P, they are all liable, even if only one could have caused the injury.
The burden of proof switches to the D to prove that they did not cause the harm.
ii. Market Share liability: D is liable for the proportion of damage represented by its market
share, D can escape liability only if D can prove that it could not have made the product which
caused the P's injury. The defendant manufacturers brought to trial must comprise a
substantial share of the market
D. PROXIMATE CAUSE (SCOPE OF LIABILITY) – Whether Ds negligence was the proximate cause of
Ps injury?
1. Rule: Whether there is a close enough relationship between the Ds negligence and the Ps injury that the
court believes is just in holding the D liable in damages to the P. Whether we should hold someone liable
2. Foreseeability Test: D is only liable for the harmful results that are the normal incidents (foreseeable)
of and within the increased risk caused by his acts.
a. Harm within the risk (or Bundle of risks) - not clear exactly what is to be foreseen, focuses on the
particular risks that make the D’s conduct negligent in the first place
b. Thin Skull Rule: D takes P as they find them. If there is a preexisting condition, that causes a
greater extent of harm than a D could have foreseen bc the D aggravates a preexisting condition,
they are still liable
c. The Unforeseeable P: A D owes a duty to only those who are reasonably foreseeable within the
zone of danger of which Ds negligent act can affect them.
d. Foreseeable Class: the fact that the injury to a particular plaintiff was not especially foreseeable is
irrelevant, as long as P is a member of a class to which there was general foreseeability of harm.
e. Criminal Acts/Risk Creation: If the realizable likelihood that a third person may act in a particular
manner is the hazard or one of the hazards which makes the actor negligent, such an act whether
innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable
for harm caused thereby
3. Direct Causation Test: where the facts present an uninterrupted chain of events from the time of the
defendant’s negligent act to the time of plaintiff’s injury. Type of harm does not matter, it only matters
that the harm resulted from the negligent conduct and there was no independent intervention.
a. Intervening Causes – A new cause that occurs after Ds act but before Ps injury, does not always
break the chain of events.
b. Superseding Cause – intervening cause that breaks the chain of causation, new independent cause,
coming into existence after the Ds negligence but before Ps injury. (Natural events are not
superseding causes).
c. Acts of a Third Person: If the Ds active force has come to rest, but in a dangerous position creating
a new danger which then occurs, we say that Ds act was the proximate cause of Ps injuries. BUT
where the Ds active force has come to a position of apparent safety, the court will no longer
follow it; if some new force later combines with this condition to create harm, the result is too
remote from the Ds act.
d. Negligence & Criminal Acts: The act of a third person, intervening and contributing a condition
necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if
such act ought to have been foreseen.
e. Rescuer’s do not break the chain of causation if:
i. The D was negligent to the person rescued and such negligence caused the peril of that person
ii. The peril was imminent
iii. A RPP would have concluded such peril existed
iv. The rescuer acted with reasonable care & in reasonable time
E. DEFENSES
1. Application: On exams if you want to prove this, you have to go through contributory negligence the
same way as regular negligence, don’t have to say the rules, just do the analysis for each element. This
would go after the damages element of the Ds negligence. Usually an issue for the jury.
2. Elements
a. Duty: P has a duty to use reasonable care for ones own safety.
b. Breach of Duty: Conduct on the part of the P which falls below the standard to which he should
conform for his own protection, and which is a legally contributing cause co-operating with the
negligence of the D in bringing about Ps harm.
i. RIL CANNOT BE USED
ii. Some JDs are more favorable to the P when it comes to standards of care, especially if they
are a child or physically challenged
c. Cause in fact: Ps negligence that contributes as a cause to their own harm, P & D can both be the
cause of Ps injuries
d. Proximate Cause – the intervening conduct of the P is not regarded as a superseding cause
e. **Damages** - Depends on what view the JD will adopt
i. Contributory Negligence – No recovery for P if Proven
ii. Comparative Negligence – Depends on the percent neligent proven
f. Caveat: just bc a P may be found Contributorily negligent does not mean the D gets a directed
verdict, if reasonable minds might disagree then the P gets to the jury. Only if the issue is so one-
sided then the court would take the issue from the jury. Proving CN is not an automatic win.
3. Contributory Negligence
a. Rule: Conduct on the part of the P which falls below the standard to which he should conform for
his own protection, and which is a legally contributing cause co-operating with the negligence of
the D in bringing about Ps harm. All or nothing approach, if proven completely bars P from
recovery.
b. Statutory Violation – Where the P violates a statute designed for her own protection as well as the
protection of others (Speed laws), the violation may be negligence per se.
i. The violation must be a contributing cause to the accident, e.g. driving w/o a license is not
contributorily negligent.
ii. Exception: P is a member of class needing special protection. Ex. child labor laws that bar
children handling guns, Bars CN.
c. Seatbelt Defense – claim that P is CN for not wearing a seat belt bc the failure to wear a seatbelt
exacerbated Ps injuries. Was denied by the court This is usually applied to damages that occur
after the failure to meet a standard of care.
i. Avoid further damages by taking precautions AFTER the injury
ii. If you apply this you are forcing the P to take precautions against something they really
couldn’t foresee.
d. Last Clear Chance - P sues D, D uses P’s contributory negligence, P comes back and uses this
i. Rule: If the defendant discovered or should have discovered the plaintiff’s peril, and could
reasonably have avoided it, the plaintiff’s earlier negligence would neither bar nor reduce the
plaintiff’s earlier recovery
 (1) It is only a plaintiff’s doctrine—that is, it serves to excuse the plaintiff’s
contributory negligence in limited situations
 (2) It is still an “all-or-nothing” doctrine—that is, a plaintiff who successfully invokes
last clear chance will recover all her damages from defendant; they are not
apportioned between the parties.
ii. Situations
 Helpless P – P was CN & subjected himself to a risk, P cannot avoid the risk by
exercise of reasonable diligence & D is negligent in failing to utilize reasonable care if
 he knew/should of knew of Ps situation or would have done so if he was exercising
reasonable care.
 Inattentive P – P, who by reasonable care, could not have discovered the risk created by
D in time to avoid it can recover if D: knows of the Ps situation, realizes/should that P
is inattentive & unlikely to discover the risk & is negligent in failing to utilize
reasonable care with his then existing opportunity to avoid the harm
iii. ** If P & D are both inattentive, LCC DOES NOT excuse P’s Negligence**
4. Comparative Negligence – (use when there is a dollar amount only)
a. Rule: partial legal defense that reduces the amount of damages that a plaintiff can recover in a
negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed
to cause the injury.
i. P is no longer completely barred by P is assigned a percentage of fault and Ps damages are
reduced by their percentage of fault.
b. Pure Comparative Negligence: Apportions liability in direct proportion to fault in all cases even
if the P is more negligent than the D the P will recover a portion. (If P is more negligent than D,
they can still recover)
c. Modified Comparative: damages on the basis of fault up to the point where Ps negligence is
either equal to or greater than the D
i. Greater Fault Bar: P is only barred if their negligence is 51% - greater than the Ds
ii. Equal Fault Bar: P is barred if the neg is equal to the D - P barred at 50%
d. Multiple Defendants – states are split, should Ps negligence be compared to each individual Ds
negligence or the total of all the Ds negligence?
i. Some states compare the Ps negligence with the combined negligence of all Ds
ii. Others compare the Ps fault with each D’s & unless P’s faults is less than (or equal to) any
D’s fault, the P cannot recover from that D.
5. Assumption of Risk
a. Rule: Bars plaintiff from recovering even when defendant has acted negligently toward her and
plaintiff has acted reasonably in encountering the risk created by defendant.
i. Most states have concluded that implied assumption of risk is not useful.
b. Plaintiff Must:
i. know of the specific risk that results in her injury,
ii. understand (appreciate) rthe nature of the risk,
iii. voluntarily encounter the risk, and (some courts would add) that
iv. plaintiff’s conduct under all the circumstances indicates that she consents to relieve
defendant of the duty to protect her.
c. Primary: Involves a determination that the D has met whatever duty the court thinks appropriate
to impose – and thus there is no basis for any liability.
d. Secondary: Here, duty and breach of duty has been found. If the D asserts that the P has also acted
unreasonably in the accident, the issue is one of contributory negligence. Some courts refer to this
as “secondary” assumption, operate the same as comparative.
F. Damages – Contribution Among Joint Tortfeasors
a. Arises in situations of concerted actions, join or indivisible harm,
1. Several Liability: Each defendant is liable to plaintiff for only the portion of plaintiff’s damages which
that party is deemed to have caused, or, under comparative negligence, which is represented by its
proportionate share of negligence.
2. Joint Liability: Arise in a case where one of many Ds caused a Ps injury but it is not possible to
determine which D. Burden switches to the D to show that each did not cause the injury.
3. Joint & Several Liability: A situation in which each of several obligors (anyone who bears an
obligation) can be responsible for the entire loss if the other are unable to pay.
a. If one D pays off the Ps award but there were multiple Ds, they can seek ->
 b. Contribution: A defendant who seeks contribution from another defendant attempts to recover a
portion of the damages it has paid plaintiff
c. Indemnity: allows a loss to be shifted entirely from the paying tortfeasor to a non-paying
tortfeasor in certain circumstances

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

A. General Basis of Liability: The defendant breaches a duty to the plaintiff by creating a risk of physical
injury and the plaintiff suffers emotional distress as a result
1. The plaintiff must be within the “zone of danger” and ordinarily must suffer physical symptoms from
the distress
2. Exception: The defendant breaches a duty to a bystander not in the zone of danger who (i) is closely
related to the injured person, (ii) was present at the scene of the injury, and (iii) personally observed or
perceived the event
B. Direct Victims
1. Traditional View – Contemporaneous Physical Injury Rule (Impact rule, stage 1)
a. No recovery for ED alone, unless there is a physical impact then the ED can be parasitic on those
damages
b. P can recover if she was directly struck by D or an object of Ds, suffered a physical injury
contemporaneous with the impact (not a day later) and suffered ED arising from the impact.
2. Impact Rule (Stage 2) – minority
a. Softer impact rule, P can recover for ED if the negligent D caused even the slightest touch & P
suffered ED as a result of that touch.
3. Zone of Danger – Limit on liability (minority)
a. P can recover for ED even if she was not touched at all if: P was personally in danger of being
struck, suffered ED as a result of the fear of being struck, suffered physical injury resulting from
the ED.
b. P has to be within the zone of danger – within proximity to the harm that they are able to be harm
4. Other Direct Victims - Various situations in which the negligently inflicted ED “occurs in the course of
specified categories of activities, undertakings, or relationships in which negligent conduct is
especially likely to cause serious emotional disturbance.
a. In these situations, there is no requirement that P be in fear of being physically struck. Examples –
mishandling of corpses, consumption of food that has been contaminated with repulsive foreign
objects, medical cases – were D negligently diagnoses their patient.
C. Bystanders (Witness to Accidents to Third Parties
1. The Dillon Foreseeability/Guideline Approach
a. Whether there was a duty of care, depends on whether a reasonable person in defendant’s position
could foresee causing emotional distress to the plaintiff
b. Foreseeability existed depended on three “guidelines”:
i. (1) plaintiff’s presence “near the scene” of the accident,
ii. (2) “sensory and contemporaneous observance” of the accident;
iii. (3) close relationship between plaintiff and third-party victim.
c. Additional requirements:
i. (1) plaintiff still had to suffer physical injury resulting from the emotional distress (i.e., no
recovery for ED alone), and
ii. (2) there had to be an actual injury and defendant liability to the third-party victim
d. Caveat: While the defendant did owe an independent duty to the witnessing bystander, that duty
did not arise unless the third party was actually injured (If the 3rd person is not actually injured the
one suffering the “ED” alone cannot recover)
2. Physical Injury [as a result of the ED] Requirement – The Thing Requirement Approach
 a. Allowed recovery for emotional distress alone without plaintiff having to prove resulting physical
injury. Standard of proof, very high, for ED: Plaintiff must suffer ED “beyond that which would be
anticipated in a disinterested witness.”
b. Rejects the foreseeability approach and turned the guidelines into elements.

Strict Liability
A. Overview
1. Imposition of liability on a party without a finding of fault (it was not negligent and was not intentional),
only need to prove that the tort occurred, and that the D was responsible.
2. Liability is imposed simply because certain types of injuries happens – even though no one is at fault.
B. Elements
1. Duty - Duty to prevent harm from abnormally dangerous activities that one engages in
2. Breach - Requires the P to show that the D has not fulfilled his duty
3. Cause in fact – See negligence
4. Proximate Cause – See negligence
5. Damages – See negligence
C. Abnormally Dangerous Activities
1. Rule: One who maintains an abnormally dangerous condition or activity on his premises or engages in an
activity that presents an unavoidable risk of harm to the person or property of others may be liable for the
harm caused even if the D has exercised reasonable care to prevent the harm.
2. Revised elements of ADA –
a. An actor who carries out an ADA is subject to strict liability for physical harm resulting from the
activity 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.
3. Rationale for Strict Liability
a. May save the courts time & money in terms of litigation costs
b. Surrogate for negligence? Suspect that there is negligence but it is too difficult to prove
c. Loss distribution
d. Corrective Justice - rectification of a wrong done another, required compensation when one had
imposed an inordinate, abnormal risk of very serious harm on another. [not according to posner]
e. Risk distribution: Liability should be imposed on the party in a better position to absorb the cost
of injury (often a business) and distribute that cost to others, either via insurance or as a cost of
doing business.
f. Utilitarian and Economic: Strict liability should be imposed only when it provides safety
incentives greater than those provided by a negligence rule.
4. Defenses
a. Not absolute liability, proximate cause is a limitation and D may be able to assert affirmative
defenses.
b. Assumption of risk is a complete defense (§523), as is that form of contributory negligence that is
a version of assumption of risk, i.e., “knowingly and unreasonably” subjecting oneself to the risk
of an abnormally dangerous activity
c. Comparative Negligence - where it says that plaintiff’s recovery in a strict liability action may be
reduced in accordance with the share of “comparative responsibility” assigned to the plaintiff.
Although recognizing that “no literal comparison of the fault of the two parties may be possible,”
the trier of fact should consider “the degree of unreasonableness in the plaintiff’s conduct and the
nature of the causal connections between the conduct of the plaintiff, the conduct of the defendant,
and the plaintiff’s resulting harm
D. Vicarious Liability
1. Overview
a. It allows a “master,” although faultless, to be held liable for the tort of a “servant,” usually
negligence but sometimes an intentional tort, when the servant is acting “within the scope of
employment.” Aka respondeat superior (let the master answer [in damages])
2. Determining independent contractor or employee?
a. General rule is that an employer is not liable for the torts of an independent contractor
b. Independent Contractor: one who, by virtue of his contract, possess independence in the manner
and method of performing the work he has contracted to perform for the other party to the K.
c. The IC has to be an apparent or ostensible agent or is hired to perform nondelegable duties or
an activity so intrinsically dangerous that the employer should realize it involves a peculiar risk
of harm.
d. Some factors courts may look at to determine whether the person employed is a servant
(employee) or independent contractor include:
i. whether by agreement the employer may determine the details of the work,
ii. whether the one employed is engaged in a distinct business or occupation, and the
special skills required of him or her,
iii. who supplies the place and instrumentalities of the work,
iv. the length of time the employment is to last,
v. the method of payment (periodic wages or lump sum?),
vi. may the person employed fire his or her own employees
e. Exceptions
i. Work involving an inherent danger (e.g., blasting)
ii. Work involving some special risk in the particular job, not necessarily inherent (e.g,
hauling giant logs on the highway), and
iii. Non-delegable duties
3. Determining which acts fall under the scope of employment?
i. The master is liable for the tort of his employee if the employee was acting within the scope
of his employment
b. Motive Test: Whether the servant’s conduct “was actuated, at least in part, by a purpose to serve
the master”?
i. (1) Conduct of a servant is within the scope of employment if, but only if:
 (a) it is of the kind he is employed to perform;
 (b) it occurs substantially within the authorized time and space limits;
 (c) it is actuated, at least in part, by a purpose to serve the master, and
 (d) if force is intentionally used by the servant against another, the use of force is not
unexpectable by the master.
ii. (2) Conduct of a servant is not within the scope of employment if it is different in kind from
that authorized, far beyond the authorized time or space limits, or too little actuated by a
purpose to serve the master.
c. Policy Test: Whether the imposition of vicarious liability under the facts of a given case would
serve the policies underlying vicarious liability?
i. The judge identified two such purposes:
 (a) “more efficient allocation of resources” (would vicarious liability induce the
master to take steps to prevent further accidents), and
 (b) “loss spreading” (placing liability on the party with greater resources (the “deep
pocket”), who can then spread the loss through insurance or price increases).
d. Foreseeability Test: Was the servant’s tort “characteristic of” the activities of the business (or not
too “unforeseeable”)?
 i. Given the totality of the circumstances surrounding an employer’s employees, if it is
reasonably foreseeable that the employees will cause some type of harm, then the type of harm
that actually occurs is irrelevant. The employer will be held liable for the harm done by the
employee.
 In the context of intentional torts - whether the servant’s conduct was “so unusual or
startling” that it should not be fairly attributed to the master as a cost of doing business.
e. Control Test (disfavored): Whether the master had “control” or the “right of control” of the
conduct of the servant at the time he or she committed the tort?
i. Fallen out of favor because it is largely circular.
f. Intentional torts are usually outside the scope of employment, unless they are committed in
furtherance of the employer’s business
i. The employer forbidding that conduct has no bearing on liability.
ii. A principal is not chargeable for acts by its agents which only are intended to further the
agent’s own interests. (Usually sexual misconduct, or something purely personal in nature)
g. Functions of Vicarious Liability
i. Redress of social grievances
ii. Loss Distribution
iii. Deterrence