Outline for Torts – Fall 2019

Culpability Liability
intentional intentional torts

reckless

gross negligence negligence

negligence

innocent conduct strict liability

I. Negligence ~ Duty Breach Causation Damages

Defenses: contributory neg; assumption of the risk
- Injuries were not intentional ~ if the court finds the accident to be Δ’s fault, it can order Δ to
pay damages legally caused by Δ’s conduct

Analyzing Negligence

1) Establish a Duty
2) Explain why Breach occurred
 B < LP
3) Establish Cause
1) Actual and
2) Proximate
4) Discuss possible Damages

Page 1
 Does Δ owe Π a Duty of Care?
Foreseeable harm?
Special Relationship?
RPP?

Was there a Breach of that duty by Δ?

RPP?
B<LP?
NO ACTION FAILS
YES

Has Π suffered any injury/damage?

What type?
Actionable?

Was that damage caused

Directly by Δ and
Reasonably foreseeably/
proximately by Δ?
Contributory Neg = Δ’s
damages/ liability are reduced
proportionally
Does Δ have a defense? YES

NO Primary Assumption of the Risk

= total defense; no recovery
for Π
Δ is fully liable for Π’s damages

1. Duty—always Step 1 because No Duty = No Negligence!

Determined by the Judge!
A) Duty of Reasonable Care
1) Objective Standard
- Vaughn v. Menlove (1837): [hayrick fire] whether “the care a prudent man would take” or
“acting to the best of your own judgment” is the proper standard for negligence ~ the care a
prudent man would take, because this standard requires all persons to uphold a standard,
reasonable level of caution—an objective standard, not a vague, subjective and individually
variable level of caution.
 The RPP: the actor is required to do what the ideal RPP would do in the same or similar
circumstances. RPP is a fictitious person who is never negligent. They are not to be

Page 2
 identified with members of the community—therefore a jury is never instructed to
determine an RPP standard for the case in front of them by asking what they would have
done in the same or similar circumstances.
2) Actual v. Constructive Knowledge
- Parrot v. Wells Fargo (1873): [nitroglycerine leak  explosion] whether Δ’s lack of
knowledge as to the contents of the package (nitroglycerine) is sufficient for a claim of
negligence ~ No
Rule: because negligent conduct must be
1) Either the action or omission
2) Of that action
3) Which a RPP
4) Would not have done
 No one is responsible for injuries from an unavoidable accident, as was the case
here. Π must prove that Δ’s act/omission
1) Violated a duty incumbent upon them
2) Which caused
3) The complained injury
 An objective standard can change in the circumstances—if an RPP didn’t know or have
reason to know a certain outcome would occur based on any number of factors, then
they would not be liable.
 RPP knows:
1. All risks of harm from the conduct or
2. Only knows risks Δ is actually aware of or
3. Knows only the risks a reasonable person would?
B) Reasonable Person Under the Circumstances  the RPP
1) Extraordinary Knowledge/Skills: usually an objective standard of ordinary intelligence
 Inferior v. Superior Knowledge
a) Inferior: does NOT excuse from negligence
b) Superior: held to a HIGHER standard of care
- Cervelli v. Graves (1983): [experienced, professional truck driver] whether Δ should
be held to a higher standard because of his superior experience as a truck driver ~
Yes
Rule: if Δ has in fact more than the minimum of attention, perception, memory,
knowledge, intelligence, and judgement to recognize the existence of a risk, they
are required to exercise superior qualities in a manner now reasonable under the
circumstances—RPP with superior knowledge/skills is opened up to more liability
than any other RPP!

Page 3
2) Physical + Mental Disabilities: variable standard of care
Any disabilities of the actor are assumed into the RPP ~ RP Blind P, RPP in a wheelchair, RP
Pregnant P, RP Deaf P, etc.
 Expected to take reasonable precautions to protect 1) themselves and 2) the public from the
inherent risks in their disability (blind persons cannot drive cars; people in wheelchairs cannot
try their luck down some stairs, etc.)
A. Physical Disabilities
- Poyner v. Loftus (1997): [blind man RPP] whether Π’s blindness should be tested
against a different standard of care ~ Yes
Rule: blind persons (read: any persons with a disability) must exercise, for their own
safety, due care commensurate with known or reasonably foreseeable dangers,
and are thus tested on whether an RPP with the same disability would apply the
same care in the same or similar circumstances.
 Contributory Negligence: a person with a disability is bound to use due care
under the circumstances by a reasonable effort to compensate for their
handicap with artificial aids—failure to use such an aid could result in
contributory negligence as a matter of law!
B. Mental Disabilities
- Creasy v. Rusk (2000): [Alzheimer’s patient hit a nurse]
1) whether the general duty of care imposed on people with mental disabilities is
the same as people without ~ Yes
Rule: generally a person with mental disabilities is held to the same standard
of care as RPP under the same circumstances without regard to the capacity to
control or understand the consequences of their actions
2) whether Δ’s circumstances are such that the general duty of care should be
imposed on him ~ NO
Rule: the mental disability is part of the circumstances the RPP is put into,
so to find if a duty exists, the court must balance three factors:
1. Relationship between Π and Δ
2. Reasonable foreseeability of harm
3. Public policy concerns

Hold: Placing a duty on Δ would be too great a burden on him.

3) Children ~ a modified standard of care!

a) RPP  RPC ~ ordinarily Rule: it is the duty of a child to exercise the same care that a
reasonably careful child of the same:
Age—the main factor!
Intelligence

Page 4
 Maturity
Training, and
Experience
would under the same or similar circumstances.
 Additionally ~ Mentally Impaired Children: unlike adults, any mental impairment of
a child is factored into the analysis of reasonable care!
 Exception Robinson v. Lindsay (1979): [kid on a snowmobile] whether a
minor operating a snowmobile is to be held to an adult standard of care ~
Yes
Rule: when the activity a child engages in is inherently dangerous, as is the
operation of powerful motorized vehicles, that child should be held to the
adult standard of care.
 Useful deterrent from allowing children to participate in adult
activities!
b) Objective or Subjective? ~ despite the subjective traits applied to the standard (age,
intelligence, maturity, training, and experience), the RPC is always careful under the
circumstances; the factors may impact the perceptions of danger, but once perceived the RPC
makes prudent decisions  so still technically objective
c) Age of Child Actors ~ three different views + NC rule
1) Majority Rule: a child must exercise the same care that a reasonably prudent child of the
same age, intelligence, maturity, training, and experience would in the same or similar
circumstances
 Jury considers whether the child is too young to appreciate
any risk of harm on a case-by-case basis.
2) Illinois Rule: a child younger than seven years old is incapable of being negligent
3) R3d Rule: a child less than five years old is incapable of negligence ~ lack of moral
blame; lack of functional deterrent

 NC  The Rule of Sevens ~ how old is the child, and what effect does their age have?
1. Children under 7: legally incapable of negligence (incl. contributory!)
2. Children 7-14: incapable of negligence BUT may be overcome if the child did not
use the standard of care which a RPC of their age, capacity, discretion,
knowledge, and experience would have exercised in the same/similar
circumstances.

4) Extraordinarily Dangerous Activities  the standard of care does NOT change, BUT the actor
must still act reasonably in the circumstances

Page 5
 - Stewart v. Motts (1995): [gasoline burn] whether there is a higher standard of
“extraordinary” care for the use of dangerous instrumentalities (above reasonable care) such
as gasoline ~ No
Rule: There is only one standard of care applied to negligence, incl. those involving
dangerous instrumentalities. The standard never varies, BUT the care it is
reasonable to require of an action varies with the danger involved in the act and is
proportionate to it  the greater the danger, the greater the care to be exercised.
5) Sudden Emergency ~ sudden and unexpected encounter with danger which is either real or
reasonably perceived as real in the circumstances
 Is it appropriate to enhance the reasonable care element in cases of sudden
emergency where the actor’s circumstances allow little time for attention and
deliberation in an emergency not of their own making?
- Myhaver v. Knutson (1997): [Elmo Δ car accident] whether Δ’s conduct can be qualified as
reasonable under the circumstances because it was affected by an emergency ~ Yes
Rule: the emergency doctrine is not an independent rule—it is an application of the
standard of reasonable care. The emergency is part of the circumstances faced by the actor.
It is to be incl. in a jury instruction at the discretion of the judge.
C) Special Duty Rules ~ judge decides whether duty exists, a matter of law
1. Duty to Act
A. Acts v. Omissions ~ negligence occurs in the Act!
1. No General Duty to Aid Others!—right to remain inactive! (individualism—very
American)
Rule: The fact that an actor realizes or should realize that an action on their party is
necessary for another’s aid or protection does not of itself impose a duty upon the actor
to take such action.
- Yania v. Bigan (1959): [the coal trench drowning]
1) whether Δ could be held liable for Π’s death because Δ “cajoled” him and thus
caused Π to jump into the water ~ No
Rule: in the case that Π, by their own carelessness, contributed to their own
harm, then Δ is not liable for any consequences relating to the accident—
unless Π is a child or a person suffering a mental deficiency
2) whether Δ, creating the peril, had a duty to rescue Π ~ No
Rule: the fact that Δ sees Π in peril imposes no legal duty to recuse them, unless
Δ is legally responsible, in whole or in part, for the peril.
 If an actor wrongfully causes an accident, they are already liable for the
resulting injuries  it is in their interest to make an effort to reduce or

Page 6
 mitigate the totality of the damages, if possible (it may lessen the
overall liability!)
2. Decision to Act  Duty of Care Exists—affirmative acts
Rule: when acting, a reasonable duty of care exists—you create the duty, you must act
reasonably in the circumstances.
- US v. Lawter (1955): [the Coast Guard mishap] whether Δ was negligent in
implementing Coast Guard protocol, which led to Π’s death during an attempted
helicopter rescue ~ Yes
Rule: a definite and affirmative act deliberately undertaken has a law-imposed
obligation to not injure Π by negligent performance of the act, even when done in
good faith
3. Special Relationships compelling action ~ such as: common carriers, innkeepers, and
other landowners who open their property to the public—provide basic first aid and
procure medical assistance to patrons as soon as it is apparently necessary! 
overcomes the No Duty to Act Rule! If a special relationship exists, you must act!
 Why these groups?
1) The landowner is in a position to profit from the presence of patrons, and so
imposing a special duty of care doesn’t seem unfair.
2) patrons generally have to rely on the landowner for protection.
Rule: the existence of a relationship between the victim and an actor in the
position to render aid may create a duty to render assistance where one would
ordinarily not exist.
- Lundy v. Adamar (TropWorld) (1994): [heart attack in the casino] whether Δ owed
an extended duty to Π (already a Special Relationship!) because there was intubation
equipment on the premises that went unused during Π’s ordeal ~ No
Rule: Δ has only a duty to take reasonable action to give first aid and to procure
appropriate medical care ASAP, and to continue providing first aid until qualified
assistance arrives—duty does NOT extend to all care Π could possibly foresee,
regardless of the Special Relationship’s mandatory duty.
Rule: when someone takes on a duty, they are subject to liability if any bodily harm
occurs because:
a) The failure to exercise reasonable care to secure the safety of the victim, or
b) The discontinuing of the aid/protection, if the actor leaves the victim in a worse
position than they were found.
 Good Samaritan Statutes: remove the threat of litigation—
incentivizes gratuitous assistance; different states provide different

Page 7
 levels of protection for actors, but most require good faith and protect
actors unless their conduct is willfully/wantonly negligent.
 The NC Rule: no civil liability for a person coming to the aid of
another UNLESS the rescuer commits wanton or willful negligence,
much more than ordinary negligence.
4. When duty ends ~ expiration of Special Relationship
 What is the duration of a special relationship? How long does the Duty of Care last?
- Boyette v. TWA (1997): [the trash compactor death]
1) Whether Δ owed a duty of care after Π got off the plane ~ No
Rule: Common carriers do have a high duty of care while transporting
passengers, but that duty exists ONLY as long as the transport—it is
discharged when the passenger safely reaches their destination
Hold: Δ discharged their duty when Π reached the airport
2) Whether Δ gained a new duty after they pursued Π when he was driving
the golf cart ~ No
Rule: Δ’s duty was already discharged and Π contributed greatly to the
events that led to his accidental death, so no prox cause either.
B. Rescuers ~ no duty to act, so what about someone who chooses to act and is injured?
1. The Rescue Doctrine: allows injured rescuer to sue Δ who caused the danger req’ing the
rescue  Negligence has already occurred when rescuer gets there!
Rescuer must prove:
1) Δ was negligent to victim and
2) Their negligence caused the peril
3) The peril was imminent
4) RPP would have seen the peril
5) Rescuer acted with reasonable care during the rescue
Two Functions:
1) informs prospective Δs that it is foreseeable that a rescuer will attempt to aid the
imperiled victim, and
2) 2) negates the assumption of risk for rescuer UNLESS they act recklessly! 
Foreseeability Requirement! Rescuers injury must be foresseable!
- McCoy v. Suzuki (1998): [the rollover rescuer]
1) whether Π is able to invoke the Rescuer Doctrine in a product liability
action ~ Yes
Rule: The Recue Doctrine may be invoked in a product liability action
when
1. the defective product

Page 8
 2. causes the circumstances req’ing a rescue
2) If so, whether Π’s injury is covered by the Rescue Doctrine ~ Maybe
Rule: Π must prove their injuries were prox caused by Δ’s defective
product. Whether the product needs to cause
a) The injury or
b) The danger
is a question for the trier of fact.
2. The Firefighter Rule—one BIG exception to the Rescue Doctrine
 Logic ~ public defenders signed up for possible harm
- Moody v. Delta Western (2002): [Alaska drunk driver, stolen truck] Whether
Π’s employment as a police officer precludes him from a cause of action for
negligence against Δ ~ Yes
Rule: Firefighters and Police Officers who
1) Are injured
2) In the line of duty
May NOT recover based on the negligent conduct that caused their presence at
the scene in the first place.
- Snellenberger v. Rodriguez (1988): [police heart attack at the scene] whether
Π’s heart attack at the scene of the accident caused by Δ could place liability
with Δ under the Rescue Doctrine ~ No
Rule: the Rescue Doctrine req foreseeability—to invoke, Π must prove their
harm was a foreseeable result of the negligence. A heart attack suffered by an
officer at the scene of a car accident is NOT, as a matter of law, foreseeable.
2. Duty to Protect 3rd Parties from Another’s Harm
A. Health Care Workers—clear duty of care between doctor and patient, but what about
protecting 3rd parties from harm caused by the patient?
1) Mental Health—the Tarasoff Rule
Rule: Duty occurs when a mental health professional
1. determines or should determine
2. that the patient presents serious danger of violence to another
3. the professional incurs an obligation
4. to use reasonable care
5. to protect the intended victim against such danger
- Emerich v. Phil. Ctr. for Human Dvlpmnt (1998): [duty to warn, ex-gf
murdered]
1. Whether Δ had a duty to warn the victim of the threat of death/bodily
harm made by her ex-bf against her, a patient of Δ ~ Yes

Page 9
 Rule: because of the special relationship between the pro and the
patient, when the patient has:
1) Communicated to the professional
2) A specific and immediate threat
3) Of serious bodily harm or death
4) Against a specific, identifiable 3rd party, and
5) When the professional determines or should determine
6) The patient presents a serious danger of violence
THEN that professional has a duty to exercise reasonable care to
protect that 3rd party by warning them against the danger.
2. Whether Δ discharged that duty in his phone conversation with the
victim ~ Yes
Rule: the warning must be reasonable in the circumstances. Δ’s
warning over the phone was ruled as sufficient, the victim just didn’t
heed the warning.
 Foreseeability: the duty to warn must have a foreseeable
component—without the presence if true, foreseeable harm
because of a manifest serious threat of immediate harm to a
readily identifiable victim, warning a 3rd party would breach the
doctor/patient confidentiality.
2) Physical Health
- Bradshaw v. Daniel MD (1993): [Rocky Mountain Spotted Fever]
1. Whether a physician has a duty to warn a non-patient of the risk of exposure to a
non-contagious disease (RMSF) when the non-patient’s family member has
contracted that disease ~ Yes
Rule: Physicians will owe a duty
1) To a non-patient
2) For injuries
3) Caused by the physician’s negligence
4) IF the injury
5) Was reasonably foreseeable
6) Given the nature of the disease
2. Whether the fact that Δ didn’t treat the wife would negate that duty ~ No
Rule: the close, intimate relationship between husband and wife would make it
reasonably foreseeable for them to suffer from the same disease and therefore
Δ should have warned the wife.

Page 10
  ONLY BECAUSE of the immediate family relationship of the 3rd party
(the wife)—other 3rd parties may not impose the same duty!
B. Employer/Employee—duty to supervise employees for the protection of others/the public
Duty to Control Others?—impose a duty of reasonable care when they are responsible for
certain people (employees, minors, customers, etc.)  protect against foreseeable harm
- Otis Engineering v. Clark (1983): [drunk driver left work]
1. Whether Δ has a duty imposed by law to act reasonably in exercising control over
employees (special relationship?) ~ Yes
Rule: If an employee is
1) Incapacitated and
2) Causes the employer to exercise control
3) The employer has a duty
4) To prevent the employee from
5) Causing unreasonable risk to others
 only a Duty of Reasonable Care!
2. Whether Δ’s failure to exercise reasonable control over the drunk employee could be
found to be the prox cause of Π’s death? ~ Maybe
Rule: Π would have to prove that the drunk employee wouldn’t have caused the
wreck if Δ acted differently—malfeasance v. nonfeasance!
 Foreseeability: was the wreck a foreseeable consequence of Δ’s actions?
3. Duty Limited by Nature of the Primary Harm ~ negligent touching of the mind
A. Emotional Distress: ComLaw—damages okay IF physical harm accompanies emotional!
Three Theories
1) Impact Rule old ComLaw Rule
Emotional distress is recoverable only if some physical injury has occurred.
2) Zone of Danger from Robb v. Penn RR (1965) [stuck on train tracks]
Where Δ’s negligence
1) Prox causes fright
2) In a Π w/in the immediate zone of danger resulting from that negligence AND
3) That fright produces physical consequences
THEN Π is entitled to recover (if they prove neg. and prox cause)
3) Dillon Rule of Foreseeability from Dillon v. Legg (1968) [daughter run over, mom saw]
Shifts the allowance for emotional distress
Factors (really Requirements!)
1) Was Π physically near the accident?
2) Was Π’s shock formed a direct emotional impact from sensory and
contemporaneous observation of the accident?

Page 11
 3) Were Π and decedent emotionally close?
- Dillon v, Legg (1968): [daughter runover, Mom saw] whether Π, the mother
of the decedent, is precluded from recovery for her physical and emotional
suffering as a result of witnessing her own child’s death from outside the
“ZoD” ~ No
Rule: Foreseeability of harm evaluated through the three factors
1. Proximity to the accident
2. Sensory/contemporaneous observation of the accident
3. Relationship with decedent.
- Grotts v. Zahner (1999): [fiancé as Dillon decedent] whether Π may recover
under the Dillon rule (spec. Factor 3) for witnessing the death of her fiancé
as a result of an accident caused by Δ ~ No
Rule: Dillon Factor # 3 = “close relationship” determined by family
membership by either
a) Blood or
b) Marriage.
Immediate family members qualify as a matter of law. Anyone beyond that
scope must be assessed by the fact finder.
 Is there a General Duty to not cause emotional distress?—NO
- Boyles v. Kerr (1993): [sex tape] whether Π’s claim constitutes NIED as an
independent action where Δ’s conduct did not cause physical injury ~ No
Rule: there is NO general duty to NOT inflict NIED. To recover, Π must
1) Show that Δ breached another legal duty
2) That affected Π’s emotional stability in a foreseeable way.
Hold: Since Π sued under NIED alone, there is no cause of action.
 she should have sued under IIED!
B. Mere Economic Harm—similar to intangible NIED
Courts are reluctant to impose Duty on others to avoid causing accidental econ harm to
others
 So—generally no duty to protect others’ econ wellbeing—only actionable if physical
injury is present (ie—lost wages after a phys. injury)
 Hindsight Duty: Duty is only imposed after the harm occurs and causes an
injury
- 532 Madison Ave Gourmet Foods v. Finlandia (2001): [building collapse shuts down
whole block] whether Δs owed a duty to Π to keep the premises in safe condition,
extending to protecting neighbors from economic harm ~ No

Page 12
 Rule: a duty can arise from a special relationship to keep property in safe, operative
condition to protect another from risk (ie—LL and tenant). However, that duty does
not extend to the public—no concrete duty owed!
C. Wrongful Life Claims
1) Wrongful Pregnancy = pregnancy occurring after a failed sterilization procedure—
basically med mal on steroids
Split Authority on Damages:
a) Limited Damages = Majority!; Δ is liable for all medical expenses resulting from the
pregnancy, but that’s it (ie—no pain and suffering); capped at delivery.
b) Benefits Rule = Minority; a jury calculates the child-rearing costs for damages
(really difficult to do!)
c) No Recovery = super minority (old rule!); children aren’t an “injury” and can
therefore not be compensated for = no recovery!
d) Full Recovery = only CA follows; a pregnancy and child are a foreseeable risk of a
bad sterilization surgery; therefore, victim parents should receive a full recovery for
the entire life of the child!
2) Wrongful Birth = claim brought by parents because they birthed a child with detectable
defects that, if they had known, would have led them to terminate the pregnancy (ie—bad
genetic counseling)
 Birth/child’s impairment have caused extraordinary pain, distress and expense for
the family as a whole
3) Wrongful Life = claim brought by a child born with defects, arguing they would have
been better off not being born at all
 courts do NOT like this claim!
 Philosophical Q?: how can we compare nonexistence to impaired existence?
- Nelson v. Krusen (1984): [muscular dystrophy—bad genetic counsel]
1) Whether parents may recover for the birth a child they were assured
would be healthy, but was actually born with a debilitating disease ~
Yes
Rule: it is the duty of the physician to give their patients quality,
accurate medical advice. The parents are seeking damages related to
injuries which occurred because of the birth, not truly the birth
itself. Therefore, wrongful birth is actionable if parents can prove they
were given bad advice.
2) Whether a child may recover on the same claims as his parents,
asserting his impairment is so horrific, we would have been better off
not being born at all ~ No

Page 13
 Rule: a child bringing suit against a physician for the fact of their own
birth is not a recognized cause of action because evidence supporting
nonexistence over impaired existence is rationally unprovable.
D. Duty Limited by Nature of the Activity
1) Primary Assumption of the Risk—impairs Π’s ability to show neg.
Focal Point = the activity itself: Π makes a choice whether or not to participate 
negates duty of care!
- Murphy v. Steeplechase Amusement (1929): [the Flopper] whether Δ’s
operation of the ride was negligent, since Π’s fall caused him injury or if the
falling was covering by Π’s assumption of the risk ~ Covered by Assumption of
the Risk
Rule: Volenti non fit injuria—taking part in any activity means accepting the
Positive, Desirable inherent dangers involved, provided they are obvious and necessary.
Risk or Negative
 Foreseeability negates Duty!—refined test uses B < P L!
Risks that cannot
be eliminated
> = utility outweighs foreseeable risk
through ordinary
< = burden of prevention is too great relative to foreseeable risk of harm
care?

 If an injury is
1) Caused by unnecessary hazard that could
2) Have been eliminated by ordinary care
Then that hazard is not an inherent risk.
 will NOT apply if inherent risks are obscure/catastrophic!
- Clover v. Snowbird (1991): [skiing chef accident] whether the ski operator (resort)’s
negligence—through the chef—could be termed an inherent risk in the sport of skiing ~
Maybe
Rule: Ski resorts must exercise a duty of reasonable care to protect their patrons, but they are
under no duty to protect against inherent dangers of skiing  positive v. negative risks:
1) Dangers skiers wish to confront or
2) Hazards that cannot be eliminated by an exercise of ordinary care (req. greater care!)
Hold: Here, Utah had a statute attempting to protect an industry, absolving ski operators of
liability for inherent risks—does the statute protect from all risks?
 non-inherent risks are still actionable though!
E. Duty Based on Victim’s Status—aka Premises Liability
 Refers to status of victim when they entered defendant’s land!
 3 Traditional Categories: trespasser, licensee invitee

Page 14
 Trespasser Licensee Invitee

Increasing degree of duty

1) Trespassers: the least favored status

 Stems from prioritization of property rights—historically LOs owed trespassers
only minimal duties (duty to refrain from gross negligence)
To be labeled a trespasser, entrant must:
1. Enter
2. Onto the land of another
3. Without the owner’s permission
 Regardless of Good/Bad Faith!
a) Adult Trespassers—two categories
1. Mere Trespasser [Good Faith]  duty to refrain from willful, wanton, or
reckless injury to trespasser
 Reasoning: it would put an undue burden on LOs to ensure that their land
was safe for unknown/unforeseen entry 24/7.
2. Criminal Trespasser [Bad Faith]  duty to not intentionally hurt the trespasser
- Ryals v. US Steel (1990): [electrocuted while stealing salvageable metals]
whether Δ could be held liable for failing to maintain a switch rack, even
though Π’s presence on the property was for the purpose of larceny ~ No.
Rule: LOs owe trespassers only a minimal duty, and owe criminal
trespassers only a duty to not intentionally injure, therefor no recovery for
criminal Π.

 THIS IS A MINORITY RULE: Maj—refrain from gross negligence (protects

LOs from undue burden)

b) Child Trespassers—Attractive Nuisance Doctrine

 Only applies to artificial/man-made conditions!
Children trespassers receive an exception to the minimal duty of care if LO:

Page 15
1. Knows/has reason to know that children will likely trespass
2. Knows/has reason to know an unreasonable risk of danger, death, or
injury exists on their property
3. Fails to exercise reasonable care to eliminate the danger and protect
the children
AND
4. Children do not/could not appreciate the risk or see the danger
5. The burden of fixing/removing the risk is less than utility of
maintenance and likelihood of child injury [B<PL]

- Bennett v. Stanley (2001): [swimming pool drowning] whether the AN Doctrine

should be applicable to Δ’s negligent maintenance of their pool, which caused
Πs’ deaths by drowning ~ Yes
Rule: LO is liable for harm to children trespassers caused by man-made conditions if [AN
Doctrine elements] are satisfied.

2) Licensees = middle ground

 person privileged to enter/remain on land only by virtue of LO’s consent—entered
with LO’s permission for their own convenience or on business for someone other
than LO.
 Social Guest = LICENSEE
- Knorpp v. Hale (1998): [cutting down tree death] whether Π was an invitee or a
licensee when he entered his gf’s property to cut down a dead tree ~ Licensee
Rule: Π was a licensee because social guests = licensees, and though he was doing
the LO a favor by attempting to remove the tree, he was still deemed a social guest
because of his relationship with LOs.
 Duty of Care: duty to not injure by willful, wanton, or grossly negligent
conduct AND using ordinary care to
1) Warn of or
2) Make reasonably safe any dangerous condition that LO is aware of but
licensee is not.
 Important Distinction: this is a hybrid duty
a) Dangerous Activity (controlled by LO): avoid gross
negligence
b) Dangerous Condition (NOT controlled by LO): duty is only
triggered by actual knowledge of the condition

Page 16
3) Invitees: highest duty of care; mostly businesses and patrons!
 a person actually invited for LO’s benefit
a) Time = Trigger of Duty—Constructive Knowledge
- Richardson v. Commodore (1999): [falling plaster] whether Δs breached the
duty of care by failing to inspect the plaster ceiling above the drop ceiling ~
Yes
Rule: [B<LP] LO is subject to liability for physical harm to invitees caused
by a condition on their property IF the LO:
1) knows/has reason to know (by exercise of reasonable care) of an
unreasonable risk of harm to their invitees;
2) should expect invitees will not realize the danger or will fail to
protect themselves against it; or
3) fail to exercise reasonable care to protect invitees against the danger
- Walmart v. Gonzalez (1998): [mac and cheese slip] whether the hazard
caused by the spilled macaroni had existed long enough to warrant Δ’s
should have known and thus have constructive knowledge of the risk ~ No
Rule: the evidence must show that the condition existed long enough to
give LO or employee a reasonable opportunity to discover and eliminate
the risk.
b) Open and Obvious Dangers  no duty to warn!
 danger is so open and obvious, the risk of harm is greatly foreseeable,
therefore no duty to warn is necessary!
 objective standard: RPP would see and avoid!
- O’Sullivan v. Shaw (2000): [pool shallow dive] whether Δs could be held liable
for Π’s injuries because they allowed visitors to dive into the shallow end of
their pool at night without installing lights or marking the depth ~ No
Rule: if dangers (like diving into a shallow pool) are open and obvious to a
person of average intelligence, then Δ has no duty to warn visitors of danger
because it is therefore unforeseeable that anyone, including Π, would suffer
injury if they were exercising reasonable care.
c) Duty to Protect from Criminal Attack? ~ four main tests
All courts will demand a duty of reasonable care when the LO witnesses an
invitee being attacked (creates actual knowledge of the peril).
What LO is req’d to do will differ according to the circumstances, but they have
to do something!
1. Specific Harm: LO owes no duty unless they knew/should have known that
the specific harm was occurring or was about to occur.  Super Minority

Page 17
 2. Prior Similar Incidents: LO may owe a duty of reasonable care if
evidence of prior similar incidents of crime on/near property shows the
crime at issue was foreseeable.  2nd Majority
Factors:
1) Number of prior incidents
2) Proximity in location and time to the present crime
3) Similarity of the crimes
3. Totality of Circumstances : Court must consider all circumstances
surrounding the event to determine whether the present crime was
foreseeable, thus establishing a duty of reasonable care, including:
1) The nature, condition, and location of the land
2) Prior incidents  1st Majority
- ΔTΔ v. Johnson (1999): [fraternity house rape] whether Δ owed Π a duty of
reasonable care to protect her, and invitee, from criminal acts of 3 rd parties ~
Yes, if foreseeable.
Rule: LOs have a duty of reasonable care to protect invitees from foreseeable
criminal acts of 3rd parties.
4. Balancing Test: balancing the degree of foreseeability against the burden of
the duty being imposed—if probability of potential crime increases, duty to
protect invitee increases.  Minority
 Remember the McCarty hotel break-in case!
4) Modern Rejection of 3-Category System: about half the states have wholly or partially
rejected the three-category system [the trichotomy] ~ Mostly just merging invitee and
licensee!
- Nelson v. Freeland (1998): [stepped on a stick] whether the trichotomy of premises
liability should be abandoned/modified in favor of a method more cognizant to Δ’s duty
to Π ~ Yes
Rule: All lawful visitors to private property are owed a standard of reasonable care
under the circumstances (true negligence standard) by Δ LOs. Unlawful visitors
(trespassers) keep the same, low duty of care.

Li c Invitees
en
see *new Invitee*
s
Trespassers

 Basic Two-Step Analysis:

1. Classify Π as trespass, invitee (licensee?)

Page 18
 2. Analyze Facts: has a breach of applicable duty occurred?
Hold: Rejecting the Trichotomy ~ a little bit
 SPLIT AUTH!
1) Trad. Trich. by law  judge determines
2) Abolish Trich. completely  totally for the jury, applying a RPP standard
in every case
3) Licensee/Invitee Merger*
F. Duty Based on Δ’s Status: Professionals
1) Professional Standard of Care

REVIEW ~ remember:
1. Higher degree of care in someone with superior skills/knowledge
2. Industry Custom: sometimes an entire industry is negligent! [TJ Hooper]

a) Professional Custom—professional malpractice claims are typically analyzed under

the professional standard, affording absolute weight to any professional customs
(replacing RPP with RPPro!)
 This means that RPPro cases do not utilize the Learned Hand Formula in
ascertaining breach!
Instead, juries/judges simply
1) apply the applicable custom to the Pro’s actions in the case and
2) then analyze whether they breached their duty of care acc. to the custom!
 Exception: when the Pro’s action doesn’t involve a matter in which a
layperson lacks understanding (the Sponge case) ~ then typical neg
standard!
- Osborn v. Irwin Mem. Blood Bank (1992): [blood bank HIV baby—early in
epidemic] whether Δ should be held to a professional standard of care that has
no presence in the actual custom and practice in the industry, thus abandoning
the RPPro standard in favor of an “ordinary” standard ~ No
Rule: Professional prudence is defined by actual, accepted practice within a
given profession, not by what the professional “should have” known/done acc.
to the RPP standard in typical negligence [it was too early in the HIV epidemic
for the practice of testing all blood for the virus to be a part of the standard of
care in blood banks!]
 Standard practices in a profession are not dictated by the court  this is
why experts are required.
 When the Pro standard applies, juries need information about the
applicable customs, which can necessarily only come from other

Page 19
 professionals in the field! Courts require these experts to guide
the decision.
- Hodges v. Carter (1954): [lawyer malpractice, unlucky drugstore owner] whether Δs
were negligent in their duties as lawyers when they failed to ensure proper service on
the insurance commissioner and to sue out alien summonses ~ No
Rule: as long as an atty acts in good faith and honest belief that their advice/actions
are well-informed and in their client’s best interest, they are not liable for a mere
error of judgment.

Attorney Malpractice: client/Π must prove:

1) Negligent handling; and
2) That they would have won their suit otherwise
 Trial w/in the trial
b) Who is a “professional?”
Traditional Professionals: Doctors, Lawyers, etc.
a) Industry v. Professional: distinction = Trust
 The Pro label reflects a group’s ability to be trusted to set their own high
standard of care for themselves.
 Industries are not trusted to set their own standards!
b) Two Primary Considerations:
1. Nature of the group
- Professional groups have self-imposed professional obligations that tend to
insulate them from efficiency motives [saving time, money, effort] in setting
their own customs and standards
2. Whether a special relationship with clients exists
- Other industries (i.e.—car manufacturers) lack the same relationship with
customers that professionals tend to have with their clients, since other
industries are largely driven by profit and not subject to professional
obligations.
 Generally, if there is a Fiduciary Duty  likely a Pro!

Trust as a distinction: professionals can be trusted to set their own

standards because of:
1) the nature of professions [setting obligation above profit]; and
2) the relationship between professional and client [fiduciary!]

 Industries are not based on trust:

1) Profit takes priority; and
2) Often no relationship at all between industry and customers
(not clients!)

Page 20
 - Rossell v. Volkswagen (1985): [battery acid leaked on the baby] whether Π
must provide expert testimony to make a prima facie case for negligent design in
a products liability case (whether Δ has a pro. standard of care) ~ No
Rule: Π needs only prove that Δ’s conduct presented a foreseeable,
unreasonable risk—no need for expert testimony on an industry custom ~
Reasonable Care, not Pro!
 Manufacturers are not professionals—they are an industry, and expert
testimony is unnecessary to present an industry custom as evidence of
breach of duty.

Specialized Negligence (RPPro)

Industry

Standard Negligence (RPP)

Professional

2) Informed Consent: subset of Med. Mal.

 When a patient suffers a side effect that would have affected their consent to the
procedure if they had been aware of the inherent risk [second basis for med mal]
 No consent = battery!

Typical Med Mal claims ~ Π must allege:

1) Applicable standard of care

 SoC = proper approach, practice, procedure for a specific medical situation that is
accepted by the medical community in a specific geographic location
 changes depending on where service was provided and which condition was
being treated.
2) Breach of the standard of care by a medical provider
 Failure to provide treatment consistent w/ applicable SoC!
3) Injury suffered was proximately caused by that breach
 Breach must cause the injury ~ can’t be different cause!
4) Nature and amount of resulting harm/damages.

- Scott v. Bradford (1979): [vesico-vaginal fistula post-hysterectomy] whether

OK should adopt the doctrine of informed consent, meaning doctors have a duty
to fully warn patients of all risks and effects associated with the procedure ~ Yes
Rule: for consent to be effective, it must stem from an understanding decision
based on adequate information re: the treatment; available alternatives; and
collateral risks

Page 21
 Elements:
1) Duty to inform patient adequately of material risks before securing consent;
2) Cause: if patient had known of the risk, they would not have consented;
3) Damages: an injury must have actually occurred!
 Exception: emergencies!
3) Limits on Pro. Duty
2. Breach
A) Learned Hand Formula ~ a mathematical (kind of) formula for analyzing the care an RPP would take
(should) in a given situation  compares the cost of precaution to the probability and scope of
harm
Rule: RPP will take precautions sufficient to avoid harms when the burden/cost of those precautions
is less than the foreseeable risk of harm  probability of harm multiplied by anticipated magnitude
of harm
1) B> P × L
 Factors: if burden is less than probability and scope of harm, then precaution should be
taken!
1) Foreseeable likelihood that conduct will result in harm = P
 Possibility of Loss
2) Foreseeable severity of harm = L
 Magnitude of Loss
3) Burden of precautions taken to eliminate/reduce harm = B
 Burden/Cost of Precautions
A. B< P × L = Breach!
B. B> P × L = No Breach!

BLP Hypo—car accident

You rear-end someone on the interstate going 65mph. You were reaching for something in the back seat and didn’t notice traffic had stopped.

B L P
Keep eyes on
Death; injury Sufficiently
the road;
high!
brake in time

Congratulations! You’re negligent.

Page 22
 - McCarty v. Pheasant Run (1987): [hotel break-in] whether the hotel was negligent in their
precautions taken to protect guests when analyzed with the LHF ~ Yes, though court still
found for Δ—bad lawyering?
Rule: conduct is unreasonable when the failure to take precautions that would generate
greater benefits in avoiding accidents is less than the precautions would cost
2) Flexible Standard ~ applying to sudden emergencies or dangerous activities—the reasonable care
in those situations is flexed to fit the heightened stress  the BURDEN may be higher, esp. in life
or death emergencies!
3) Analytical Tool
B) Negligence Per Se  Violation of Statutes; RPP is law-abiding!
 Note: not always conclusively breach—evidence of breach ~ negligence in the air
Rule: Δ is negligent if Δ:
1. Violates a statute that prohibits certain conduct,
2. That statute is designed to prevent that certain conduct,
3. Π was harmed by that violation, and
4. Π is within the class protected by that statute.
- Martin v. Herzog (1920): [horse and buggy headlights]
1. Whether Π was liable for contributory negligence due to a violation of a local statute
mandating all vehicles use headlights after dark ~ Yes
Rule: omitting safeguards prescribed by law is to fall short of the standard duty of care
2. Whether the statutory violation is sufficient for req. negligent conduct or merely evidence of
negligent conduct ~ Req. Negligent Conduct
Rule: Only if the violation causes the injury—Δ who fails to use headlights is not made to
pay damages for negligence unless that failure causes injury to another person.
- Wawanesa Mutual Insurance v. Matlock (1997): [cigarette and log fire] whether Δ’s giving a
cigarette to his underage friend who in turn dropped it and caused a large fire is liable for the
damages under negligence per se, since buying the cigarettes underage is illegal ~ No
Rule: the violated statute must be designed to protect against the type of harm which occurred—
here, the statute is designed to prevent teenagers from becoming addicted to nicotine, not to
prevent accidental fires.
 Caveat: Licensing Statutes—people who must hold a license to engage in a certain
course of conduct (i.e.- driving a car, practicing medicine, etc.) raise the standard of care,
but violating a licensing statute does not guarantee neg. per se
 the violation must still be the cause of the injury! (rarely the case)
 Excuse—defense to Neg. Per Se
Ignorance of Law  Excuse—based on Ignorance of Fact

Page 23
 - Sikora v. Wenzel (2000): whether Δ’s lack of knowledge (as a buyer after the fact) of the
building code violation excuses him from neg. per se ~ Yes
Rule: if Δ has no reason to know of the violation, then they are excused from liability.
Lack of knowledge of the law is not an excuse! Here, Δ knew about the building code, he
did not know about the violation of the previous owner and builder that led to the
collapse and Π’s injury.
1) Strict Liability v. Negligence Per Se
Courts usually recognize when SL is presumed. In Sikora, the court recognized that SL
was not presumed by the statute because it wasn’t articulated in the text.
2) Ignorance of Fact and Law—ignorance of law = not excusable because RPP is law-
abiding.
Other Excused categories:
1) Incapacity
2) Unable to comply with statute even with reasonable diligence
3) Confronted with emergency not caused by their own conduct
4) Compliance with statute would have involved a greater risk than noncompliance
3) Burden of Proof ~ on Δ to prove their excuse—would RPP in same/similar
circumstances have also been in violation of the statute?
C) Custom
1) Industry Custom ~ an area of activity that members of a certain industry may implicitly or
expressly recognize as appropriate or inappropriate—evidentiary value  show deviation from
or conforming to conduct of others in similar conditions ~ Still NOT determinative—ONLY
EVIDENCE.
 Doesn’t mean that defendant can’t overcome breach. Courts are unlikely to enforce a custom
that is unreasonable in itself  won’t apply if it encourages unreasonable conduct.
 Can be similar to a statutory violation—industry custom  statute
- The T.J. Hooper (1932): [tugboats lost at sea] whether the nonexistence of a custom
(lack of radio receivers) qualifies the boats as “seaworthy” and excuses them of
negligence ~ No
Rule: RPP would know that the radio receiver, though not yet a custom in the
industry, was an important safety measure to protect the cargo and crew. In instances
where custom (or lack thereof) deviates from reasonableness, the court will rule in
favor of reasonableness.
 Relation to LHF: existence of a custom ~ probability of harm and suggests
Δ complying with custom would not be too burdensome
 Swords and Shields ~ custom can be used as a sword to show someone
else was negligent in accordance with industry custom, or as a shield

Page 24
 (as was attempted in T.J. Hooper) to show the actor was not negligent
in comparison with the rest of the industry.
a) Π uses sword to show Δ’s deviation from custom  proving
negligence
b) Δ uses shield to show their compliance with custom  defend
from negligence
2) Personal Custom ~ Δ chooses to adopt certain personal customs/policies for themselves
 i.e.—corporate policies, procedure manuals, etc. designed to impact the conduct of officers
and employees  does this create an alt. standard of care?
- Walmart v. Wright (2002): [Walmart slip-and-fall] whether raising the legal standard of
care to Walmart’s manual standard of care is improper ~ Yes
Rule: adjusting the standard of care would change the objective RPP standard to a
subjective standard, as outline by the specific and unique policies written for private use
by Δ. Negligence actions cannot rely on the individual judgment of a particular actor.
 Admissible Evidence? ~ personal customs are 100% admissible evidence (sword
or shield) in negligence actions!
D) Res Ipsa Loquitur—the thing speaks for itself ~ Π can still prevail even without direct proof of breach!
(RARE—use as last ditch effort); hard to prove
Often: employer control = exclusive control
Elements:
1) cause of the accident is known
2) accident-producing instrument is under the exclusive control of Δ, and
3) instrument is unlikely to cause harm without negligence
- Byrne v Boadle (1863): [falling barrel of flour] whether Δ can be held liable when the
only evidence is a barrel falling from his property ~ Yes
Rule: it is the duty of persons who keep barrels in a warehouse to take care that they do
not roll out, and if they do roll out, that is enough evidence for a prima facie case of
negligence for Δ, because that care was clearly not taken.
 Presumption v. Inference: majority of courts find that RIL creates an inference
of negligence, which the jury is free to accept or reject. It merely gives Π a
chance to recover from their injuries when evidence is sufficient.
- Krebs v. Corrigan (1974): [plexiglass artist] whether Δ’s body is sufficient evidence of an
“accident-producing instrument” under Δ’s exclusive control ~ Yes
Rule: the human body is usually under their own exclusive control, and the body is
unlikely to cause harm in the absence of volition or negligence, so the harm caused by
Δ’s body, absent volition, may be presumed to be negligence.

Page 25
 E) Recklessness as an Alternative Standard ~ heightened standard of care from reasonable, so Δ is only
liable for negligence if they are shown to be reckless rather than careless.
Higher Culpability = More Punitive
 Protects certain actors ~ rescuers, Good Samaritans, etc.

int
en
tio gross negligence; w anton or
n
recklessness willful m isconduct

negligence
- Mobil v. Ellender (1998): [benzene] whether Δ acted negligently or recklessly ~
Recklessly
Rule: actors are reckless when (two-part test)
1) They know of the risk of harm created by their conduct and
2) They fail to implement a precaution that would eliminate or reduce the risk of
the harm with a burden so small relative to the magnitude of the risk that the
failure demonstrates indifference.
Hold: Δ knew that benzene was toxic and exposure was very dangerous, but proceeded
in conscious indifference of the rights, safety, and welfare of their workers.
3. Causation = Actual Cause + Proximate Cause
 Δ is only liable if causation link exists between conduct and harm.
1. Actual Cause ~ aka but-for; cause-in-fact
A. But-For Causation—the dominant test
1) The But-For Test = Δ’s conduct is the cause if the harm would not occur BUT
FOR the conduct
- Louisiana v. Cay (1994): [low bridge rails] whether Π demonstrated that the
insufficient railing height was the actual cause of the accident and death
without need for additional evidence ~ Yes
Rule: proof is sufficient (direct and circumstantial) when the entirety of the
evidence establishes that the cause to be proven is more likely than not.
Hold: even if Π were pinned against the rail by an oncoming car (as Δ
argued), if the railing height on the bridge had been sufficiently tall, Π
would not have fallen over the side and would not have died—because the
railing should have been a certain height exceeding a typical adult’s center
of gravity, there is persuasive evidence that the low railing was an essential
factor in Π’s death
2) Number of But-Fors—there can be multiple essential causes!
 In Louisiana v. Cay, there were two: Π’s intoxication and the railing height.

Page 26
  The But-For test is not a search for one essential cause of harm  it is an
analysis of whether Δ’s act or omission in negligence is one of the essential
links in the chain of causation that led to the harm.
- Lyons v. Midnight Sun Transportation (1996): [Alaska car accident]
1. Whether Δ’s conduct could satisfy the causation element ~ Yes
Rule: Δ’s driving was sufficiently negligent to qualify as a cause; BUT
2. Whether Δ was THE CAUSE of the accident ~ No
Rule: while the driver was negligent, his driving was in response to Π
pulling out in front of him on the road. Therefore, there is a more
essential factor in causing the accident than Δ’s conduct, so Δ is not
liable.
- East Texas Theatres v. Rutledge (1970): [movie theater bottle] whether Δ’s
failure to removed “rowdy” patrons from the theater qualifies as a but-for
cause of Π’s eventual injury ~ No
Rule: to find negligence, there must be a cause-in-fact which produces an
event without which the harm would not have occurred
Hold: there was not enough evidence to show that the “rowdy” patrons
dropping paper cups and being loud were the same actors who threw a glass
bottle that struck Π’s head and caused her injuries, thus removing the
patrons would not have definitely avoided the accident.
 Π’s Burden—must prove but-for causation by preponderance of
the evidence
B. Alternatives
1) Multiple Sufficient Independent Causes (MSIC)

1) Neither alone, only combined = both liable, jointly and severally

2) Either alone = jointly and severally liable, only if both were a
substantial factor in the harm to Π

 If neither Δ can be a true but-for; but both could have caused the harm on their own
- Kingston v. Chicago & NW Railway (1927): [the two fires] whether Δ,
responsible for Fire A, may also be held liable for Fire B, despite its origin
being unknown ~ Yes
Rule: each negligent act of 2 separate tortfeasors which would have caused
the damage without the other AND are impossible to distinguish may be
identifiable to one identified Δ
a) But-For? ~ each of the two causes could be considered a but-for if the
other cause never existed. To accept that neither cause could be liable
would frustrate the purposes of compensation and deterrence.

Page 27
 b) Natural Causes: Split Authority ~ some courts will not apply MSIC
doctrine when one cause of harm is natural (such as a lightning strike
starting a fire). Some courts will apply the doctrine.
2) Alternate Liability ~ similar to MSIC—same principle
 There is a true but-for cause, but Π cannot identify which tortfeasor is responsible.
- Summers v. Tice (1948): [two hunters shooting at the same time] whether both
hunters could be found liable for negligence when no evidence points to
either/both’s causation ~ Yes
Rule: if Δs are independent tortfeasors [thus each is liable for the damage
caused by them alone] and where apportionment is incapable of proof, the
innocent, wronged Π should not be deprived of relief/right to redress
 Both Δs acted negligently, so one or the other is solely responsible.
1) where the conduct of two or more actors:
2) is tortious; and
3) it is proved that harm has been caused by only one, but
4) there is uncertainty as to which one, then
 the burden is upon each Δ to prove that they have not caused the
harm  Burden Shifts!
- Burke v. Schaffner (1996): [police party pickup truck]
1. Whether alt. liability can apply when only one Δ is named in the claim ~ No
Rule: alt. liability is proof that harm was caused by at least one of multiple
Δs sued by Π, after naming all Δs who could have possibly caused the harm
 Π named only one here (more like MSIC, except not really?)
2. Whether the burden shift can occur with only one Δ ~ No
Rule: the burden only shifts when 2+ Δs committed tortious acts AND Π
was harmed as a prox cause of at least one Δ’s actions
3) Modifications of Alt. Liability: Market Share
 Product Liability: where multiple manufacturers make an identical product and Π
can’t tell whose product was the direct source of their injury
- Sindel v. Abbott Labs (1980): [DES injuries]
1. Whether the alt. liability doctrine as seen in Summers can apply here ~ No
Rule: to apply the alt. liability doctrine, Π must show their injuries were
caused by Δ’s actions, but the burden of proof for causation may be shifted
if neither party can ID which of two or more Δs caused the injury. Here,
this is impossible with the high number of tortfeasors and the impossibility
of distinguishing which one caused the harm.
2. Whether Δ can still be held liable ~ Yes

Page 28
 Rule: if the court can measure the likelihood that any Δ supplied the
harmful product by the percentage of the product sold by each Δ, then each
Δ’s liability would be approx.. its responsibility for the harm.
4) Increased Risk of Future Harm ~ when Π has been exposed to some toxic
substance/received inadequate medical treatment and it results in Π becoming at risk for
some future harm.
 Res Judicata req. a Π to seek recovery for any/all past, present, and future damages
at one time.
a) But-For?
b) No-Duty
c) Minority Rule
5) Loss of Chance
 Medical Malpractice only!
a) Three Rationales
1. Majority Rule ~ Lord v. Lovett
2. Minority Rule
3. Hybrid
b) Damage Calculations
2. Proximate Cause ~ a check on liability when negligence is too remote from the harm  fairness
 Usually dealing with multiple tortfeasors
 NEED Actual Cause + Prox Cause = Causation
 Majority Rule—Foreseeability Test

But-For test
Multiple but-fors
Actual
Alternatives
Cause

Causation

Prox.
Cause Direct Cause
Foreseeability
Substantial Factor

- Palsgraf v. Long Island Railway (1928): whether the issue of liability for a surprising result
should be resolved as duty or prox causation, and whether the hard is too surprising to fairly
create liability ~ No, because if no hazard was apparent to a RPP, the result cannot be
negligent because Δ would not have been aware of any duty and thus could not have been
negligent  harm must be reasonably foreseeable.

Page 29
1) Direct Cause Test—minority rule
 direct connection between the negligent act and the harm without too many
intervening causes; when a new force joins Δ’s action, Δ is no longer the direct
cause of the harm.
a) In re Polemis (1921): whether the ship’s ultimate destruction is too remote from
Δ’s negligent acts to award damages ~ No
Rule: if an act would or might probably cause damage, the fact that the damage
was actually caused is different from the expected/foreseen damage is
immaterial, so long as damage is directly traceable to the negligent act.
b) Laureano v. Louzoun (1990): whether Δ’s failure to provide heat/hot water to
Π’s apartment, requiring her to boil water on the stove, sufficiently, directly
caused Π’s burn injuries ~ No
Rule: the damage must be able to be brought by the act alone, without any
intervening factors. Π’s accidental spill was an intervening cause, cutting off
Δ’s liability.
2) Foreseeability Test—majority rule
1. Scope of the Risk: the extent and precise manner of the harm need not be foreseeable!
Only the general type of harm!
 Foreseeing the type of harm, not the extent: Δ may try to limit liability by claiming
they couldn’t have foreseen the extent of the harm caused by their actions—doesn’t
matter!
 Eggshell Π Rule: a negligent actor bears the risk that liability may be increased
due to Π’s pre-existing physical vulnerability—a Δ takes their victim as they
find them  same for economic losses for a low-income Π
Intentional Torts = always applies
Negligence = applies for prox cause (NOT NIED!)
- Tieder v. Little (1987): [UMiami wall wrongful death] whether Δ’s negligent
construction of the wall (not up to building codes)/maintenance of the poorly-
designed wall a prox cause of Π’s death even though a car striking it caused the
collapse ~ Yes
Rule: proximate cause must have
1) A direct, natural, and continuous sequence
2) Between the neg. act
3) And the Π’s injury
4) That it can be reasonably determined to be the cause of Π’s injury  But
for Δ’s negligence, the harm would not have occurred.
2. Breach of Duty  Prox Cause!

Page 30
 Harm must flow from the legal and natural result of the act done—it must be of the type
foreseeable from Δ’s perspective
 A breach of duty must be able to reasonably produce the harm suffered by Π.
- Crankshaw v. Piedmont Driving Club (1967): [food poisoning slip-and-fall]
whether Δ’s negligence in serving spoiled food, which caused the vomit on the
floor, could be the prox cause of Π’s slip-and-fall injuries ~ No
Rule: if the harm is only a possible result of the tortious act or contingent
circumstances that contribute to the cause of the injury, then the damages are too
remote to recover from Δ.
 Possible is not the same as reasonably foreseeable!
3) Substantial Factor Test—minority rule (similar to MISC!)
Basically, substantial = the injury would have occurred irrespective of Δ’s negligence
 A factor is substantial if:
1) when multiple events contribute to harm
2) one has such a predominant effect
3) that the other actor’s negligence is immaterial
1. Alt. for But-For: Asking whether either or both acts could be a substantial factor in Π’s harm—an
alternative to demanding proof that any one Δ’s conduct was a but-for cause of the harm.
- Brisboy v. Fibreboard Paper Products (1986): [asbestos or cigarettes?]
1. whether Π’s exposure to asbestos over a period of 6-9 months is sufficient to establish
Δ’s products as a prox cause of Π’s death ~ Yes
Rule: if there is more than one prox cause (here, cigarette smoking and asbestos
exposure), the mere fact that another cause exists will not release any Δ whose negligent
conduct was one of the causes of Π’s harm.
 But, Δ is only held liable for conduct that was a direct or prox cause of Π’s
harm—no more, no less
2. Whether Δ’s negligent use of asbestos was a substantial factor in causing Π’s death ~ Yes
Rule: in determining the substantivity of a factor, the court considers
1) The number of other factors and
2) The extent of the effect they had in producing the harm.
2. Test for Prox Cause? ~ alternative to Direct Cause or Foreseeability tests
- American Truck v. Thorne Equipment (1991): [fire  elevator shaft collapse] whether the
original Δ’s negligent conduct, which started the fire, is also the proximate cause of the
damage to Π’s property ~ No
Rule: Only if the cause (here the fire) can be shown to be a substantial factor in Π’s
damages can it be classified as “the cause.” The following are considerations in determining if
the actor’s conduct is a substantial factor in Π’s harm

Page 31
 1. The number of other factors
1) Which contribute in producing the harm and
2) Their effect in producing it
 Here, the three Factors are:
1) the fire—caused the original harm and damage to two buildings,
incl. the elevator
2) the demolition company—negligently caused the elevator shaft
to fall onto Π’s equipment
3) Π—left equipment in the path of a clearly damaged building
 Factor 2 is the most closely tied negligent act to Π’s harm,
and the most substantial damage was caused by the falling
elevator shaft, not necessarily the fire itself
2. The creation of a force/series of forces that are either
a) Continuous/active in operation up to the time of the harm or
b) the situation is harmless unless acted upon by other forces that that the
actor is not responsible for
 the fire did create the series of forces which led to Π’s injury, but the
elevator shaft wouldn’t have fallen if the demolition company hadn’t
been negligent after the fire was long extinguished.
3. Lapse of time
 Π’s injury occurred after the original fire had been extinguished for 8 hours
4) Superseding and Intervening Causes
A. Superseding Cause: a 3rd party’s intervening act that
1) occurs after Δ’s negligence and
2) was not reasonably foreseeable by Δ.
 Superseding will break the chain of liability—the original tortfeasor is
completely relieved of liability.
- Price v. BKA (1995): [Bush mask case] whether the push that caused Π’s fall
and subsequent injury was a superseding cause, insulating Δ from liability ~ No
Rule: the chain of causation remains unbroken when a 3rd party’s intervening
act is reasonably foreseeable.
 To be superseding, the intervening act must be a new, independent cause of
the harm.
Hold: due to the satirical nature of the mask Δ manufactured, a violent reaction
could be a reasonably foreseeable act ~ remanded for the jury to decide.
B. Intervening Cause: a 3rd party’s intervening act that
1) Occurs after Δ’s negligence and

Page 32
 2) was reasonably foreseeable by Δ.
 Intervening will end original tortfeasor’s chain of liability, but does not break
it—the original tortfeasor is NOT relieved of liability.
- McCane-Sondockv. Emmittee (1976): [faulty burglar alarm] whether Δ’s failure
to adequately install and test the alarm system could be identified as the prox
cause for Π’s injuries despite the criminal act (robbery) by a 3rd party being an
intervening factor ~ Yes
Rule: an intervening act that is reasonably foreseeable by Δ is not a new,
independent cause and thus will not break the chain of liability for Δ.
4. Damages
A. Intentional Torts: Π may recover for both foreseeable and unforeseeable damages caused by Δ 
“Consequential” damages
B. Negligence: Π may recover for foreseeable damages only!
1) Nominal—intentional torts only!
- Even though Π suffered no actual loss/harm, they were still legally wronged
- Seeking Remedy = nominal damages open the door for larger punitive or compensatory
damages (often nominal damages amount to $1 or 2!)
All other damages categories = Negligence and Intentional!
2) Property Torts = Phys. Injury to real or personal property
a) Conversion: damages = fmv of the item converted
b) Tangible Property: damages = diminished value of the property (ie—costs of repair, fmv)
c) Injunction against further damages: rare! Court order
3) Personal Injury = “making Π whole again”
4) Past Damages = damages occurring prior to the trial
5) Future Damages = damages Π will likely incur after the trial
6) Actual Compensatory = “make Π whole again,” again.
A) Special Damages: aka economic, pecuniary losses; awarded as a direct result of actual
financial loss

Reasons for
econ dams:
past or future
lost wages

B) General Damages: aka non-economic clearly

 Tort Reform ~ many legis and courts suspicious [capped!]

Page 33
 Reasons for
non-econ
dams:
Past and/or
future pain
and suffering
1) Judge’s Review of Jury Award
C) Wrongful Death/Survival Claims
D) Limitations
7) Punitive (Exemplary) Damages—require actual or nominal damages first!
8) Comparative Fault—Reform
a) Decision to Switch to CF
b) Apportionment Problem
c) Multiple Tortfeasors?
9) Apportionment
A. Joint and Several Liability—multiple tortfeasors causing one, single indivisible injury
 Any Δ could be liable for all compensable damages!
a) Contrib jurisdiction: each liable Δ pays pro rata portion of damages [2 Δs = each
pays 50%, etc.]
b) Comparative fault jurisdiction: comparative allocation of responsibility among Δs,
even incl. a negligent Π!
- Sitzes v. Anchor Motor Freight: whether comparative fault has an effect on the
contribution among joint tortfeasors ~ No
Rule: a claimant can sue one or more tortfeasors—if more than one is sued and joint
judgment is obtained, claimaint may collect the entire amount from any tortfeasor!
B. Rejection of J&S—Several Liability ~ Δ is responsible for only their portion!
1) Hybrid Statutes
2) Apportioning Absent/Immune Actors
3) Negligent Enabling
C. Equitable Doctrines—Joint Liability
1) Vicarious Liability
2) Employee v. Ind. Contractor
3) Course and Scope of Employment
4) Concert of Action
5. Affirmative Defenses
Serve to defeat/lessen Π’s attempted recovery
 Δ’s burden to prove!
 Must state in initial pleading! ~ otherwise it’s waived! [FRCP 8(c)]

Page 34
Blame the Π ~ defeat recovery b/c Π has misbehaved or acted in a way that relieves Δ’s duty of care
 Contributory negligence; comparative fault; assumption of the risk
Immunities ~ based on status of Δ or special status of relationship between Δ and Π
 Sovereign immunity; intrafamilial immunity
A. Contributory Negligence v. Comparative Fault
1) Contributory Negligence: eliminates recovery because Π’s injury was also caused by their own
negligence [Δ is still negligent!]
- Butterfield v. Forrester (1809): first known Contrib case!
Rule: a person may not cast themselves upon an obstruction made by the negligence of
another if they themselves don’t use common and ordinary care!
 To recover, two things must happen:
1. An obstruction must be caused by the fault of Δ; and
2. Π must use ordinary care to avoid the obstruction.
- Harris v. Meadows (1995): [AL car accident] whether Π could be contributorily negligent for
not applying her brakes quickly or intensely eough when she saw Δ pulling out in front of her
on the road ~ Yes
Rule: Contrib doctrine ~ if Π themselves fails to use ordinary care to avoid the danger
created by Δ’s negligence, then Π cannot recover.
 All or Nothing—Π’s claim must be either completely unblemished by fault or no
recovery! ~ any relative degree of fault between Δ and Π are immaterial; any fault
destroys Π’s cause of action.
1. Justifications: generally ~ discourage actions that create unreasonable risks to
oneself; idea that everyone has a duty to act as RPP—if not and an injury is
sustained, that person may be held partially or entirely responsible, even though
a Δ was involved in the accident—not Δ’s fault that Π was negligent!
2. Analysis: applies the same elements as a typical negligence claim—proof of
duty, breach, actual/prox cause, and damages/harm. RPP standard applies w/
equal force to Π’s fault!
3. Exceptions ~ intentional torts; gross negligence/recklessness; where Δ had last
clear chance to avoid the harm; where Π’s negligence is classified as remote
[McIntyre v. Balentine *]
 Last clear chance: even when Π’s own fault places them in peril, it could be
ignored if Δ had the last clear chance the avoid inflicting the injury!

Page 35
Problems pg. 469
Would contrib be a viable affirmative defense?

1) E is driving on the interstate. At 9am, E is driving faster than the posted speed limit for
the sheer joy of driving fast, but slows down. At 9:05am, F swerves into E’s lane and
causes a collision.
 No; E was negligent at 9am, that had no bearing on the collision at 9:05! Too
remote and disconnected!
2) Same as above ~ but E is distracted by a text on their phone. E takes their eyes off the
road to read it. At that moment, F swerves and causes the collision.
 Maybe; depending on evidence of last clear chance, E may be able to show that
their negligence had no bearing on F’s swerving into the wrong lane or F may be
able to show that E had the last clear chance to avoid injury and missed it because
of the text.
3) S has a meeting at 8am, but forgets to set their alarm and oversleeps. They miss the
meeting and drive to work at 8:30 am. S drives through an intersection on a green light.
T has a red light, but ignores it and drives through the intersection at the same moment
as S, broadsiding S’s car. Had S set an alarm and gone to their 8am meeting, they
wouldn’t have been in the intersection for T to hit.
 No; S’s negligence in forgetting to set their alarm and thus being late to work has
no bearing on T’s decision to ignore a red light [statutory violation!] and risk
colliding w/ another car—if S had been on time to work, T would have still hit
2) Reform: Comparative Fault: reduce recovery, not eliminate!
 Does an all or nothing doctrine really epitomize tort principles (compensation, deterrence,
punishment)? ~ too pro-Δ?
 Switch to Comparative Fault—two variations: Pure CF or Modified CF [49% or 50%]
 Majority = one of the modified options

Pure CF 49% CF 50% CF

any action to recover
any action to recover any action to recover
damages will not be barred
damages will not be barred if damages will not be barred if
by culpable conduct
Π’s negligence is not as Π’s negligence is not greater
attributable to Π/decedent
great as Δ’s negligence than Δ’s negligence [more
[any %!]; amount of damages
[more than 49% and action is than 50% and action is
otherwise recoverable will be
barred!]; but any damages barred!]; but any damages
diminished in proportion to
will be diminished in will be diminished in
the culpable conduct of Π
proportion to the amount of proportion to the amount of
compared to the culpable
Π’s negligence. Π’s negligence.
conduct of Δ.
a) Decision to Switch to CF

Page 36
 - McIntyre v. Balentine (1992): [Drunk Π and Speeding Δ] whether TN should adopt
comparative fault; and if so whether Δ would be relieved of complete liability ~ Yes &
Yes
Rule: Modified CF (49%): Π may recover damages in proportion to their own negligence
only if it is less than Δ’s negligence [49%] in causing the harm ~ then Π’s damages are
diminished in proportion to the percentage of total negligence in the accident attributable
to Π.

Problem [pg. 476]: Π has suffered $100k in harm. With respect to the jury’s allocation of
fault (in table), what will Π’s recovery be?

Π’s fault Δ’s fault Pure CF 49% CF 50% CF Contrib.

99% 1% $99k $100k $100k X

51% 49% $51k $51k $51k X

50% 50% $50k X X X

49% 51% $49k X X X

1% 99% $1k X X X

b) Apportionment Problem ~ aim to lessen harshness of Contrib.

 How do juries decide the percentage of fault/responsibility?
a) Compare how negligent each party was [Quantifying Fault]; or
b) Decide which party’s negligence played a greater causal role [Comparative
Causation]; or
c) Mixing the two?
- Sandford v. Chevrolet (1982): [apportionment ~ truck flipped] which standard should be
assessed in determining how Π and Δ’s respective negligence resulting in Π’s injuries
should be apportioned [products liability] ~ Mixing fault and comparison
Rule: when a claimant’s own misconduct contributes to their injuries and their fault is
greater than Δ’s, it will defeat a products liability claim.
 If their fault is less than Δ’s then their recovery will be reduced proportionally.
When Π’s misconduct is a cause in fact of the injury, their PL claim may be defeated if
their fault is greater than Δ’s combined fault in marketing a defective product. If not
greater, then Π’s fault proportionally reduces their recoverable damages.
Hold: after determining whether and how far each party’s conduct was at fault, the
respective degrees of fault are converted into a percentage, then applied to Π’s total
damages to determine actual recovery.

Page 37
  Embracing the idea of comparing the blameworthiness of the parties ~ comparing
the causal role of each party’s conduct and the proportion of each party’s fault are
both essential to the final determination ~ blameworthiness!

Factfinder assesses the relative magnitude of the parties’

respective fault.
Quantifying Fault  Not causation—fault: cannot be scientifically apportioned
[like cause], but relies on subjective elements intrinsic to an
ordinary negligence analysis, esp. in products liability.
Allocation of damages must reflect relative causation: assessing
the proportion of Π’s injury caused by Δ’s negligence and then
of their own negligence
- Products liability: Π need not prove faulty conduct to
recover, so there is no conduct to compare between Π and Δ
to apportion fault—thus, the only option is causative
contribution between the two: product’s defect and Π’s
Comparative Causation misconduct.
 If either party convinces the factfinder that its
misconduct wasn’t a legal or actual cause, then there
is no occasion for allocation ~ but both causes had to
join to produce the indivisible injury!
 Doubt: the purpose of the proportional fault
concept = subjecting the combined causation to
some vector analysis—likely a vain exercise
*Mixing Fault w/ Prox It is futile to compare product liability with ordinary negligence
Causation* and to quantify the relative causative effect of either ~ no harm
would occur in the absence of the other!
 To determine the percentages of fault: the factfinder must
consider both the nature of the conduct of each party at
fault and the extent of the causal relation between the
conduct and the damages claimed.
 Causal relation = proximate cause [not actual cause!]
1) If Π’s conduct was one cause of the injury, fault is
measured agst conduct that would have been
faultless under the circumstances—factfinder
determines the degree of Π’s deviation from the
faultless conduct and express in a percentage, then
same for Δ in comparison and apportionment.

Page 38
  In PL = magnitude of defect, not negligence
or moral blameworthiness
2) Benchmarks for assessing fault in PL:
a) Δ: what the product should have been without
the defect
b) Π: conduct which is not unlawful or careless
in any relevant respect
3) Comparing the parties: fault, conduct, and neg.
 Least blameworthy to most blameworthy
a) Fault: range from trivial inadvertence to gross
recklessness
b) Conduct: range from complete carelessness to
deliberate intention for the result
c) Negligence: ranges from inadvertence and
neg. error of judgment to more complete
knowledge ~ obstinacy; recklessness
 R3d Torts view: mixes the concepts, just like the Sandford court!
Factors for assigning percentages of responsibility to each party whose legal
responsibility has been established include:
a) The nature of the risk-creating conduct ~ incl. any awareness/indifference re:
the risks created by the conduct and any intent for harm created by the conduct;
and
b) The strength of the causal connection between the risk-creating conduct and the
harm.

Page 39
Problems: pg. 482 ~ Fault  Conduct  Negligence
A. Δ’s custodian saw, but failed to clean up, spilled coffee. Π was running and slipped, breaker her wrist. Π sues
under premises liability, Δ argues her running caused her to fall.\
1) Δ—custodian may have been negligent in their duties, but it was Π’s neg. in running in the hallway around a
blind corner that caused the extent of her injuries. Her severe injury is a result of her fault, her conduct!
2) Π—running is not itself negligent or reckless, but failing to perform one’s duty after knowing that a
dangerous condition existed is certainly reckless. The injury is a result of Δ’s negligence, conduct, and fault!
B. Δ supplies barrels of flammable chemicals to Π corporation. Δ failed to inspect one shipment, thus didn’t see a
leak in one barrel. Upon delivery, a Π employee [agst company policy] lights a cigarette, causing the leaky barrel
to ignite and explode, causing catastrophic property damage to Π.
1) Δ—may be negligent in failure to check barrel [neg; conduct], but the explosion was not caused by either of
these: Π employee’s noncompliance w/ company safey policy is the conduct, neg, and fault here!
2) Π –Δ’s duty is to ensure safe shipment and delivery of their products. Their failure to comply w/ this duty is
the dominant cause ~ conduct and neg in failure to inspect, creating the fault for the explosion: Π employee
had no reason to know of the danger!

c) Multiple Tortfeasors ~ Modified CF jurisdiction problem

 Π’s fault must be compared to Δ’s to determine whether it is no greater than
[50% rule] or less than [49% rule]—how do we compare w/ multiple Δs?
- Beaudoin v. Texaco (1987): [subcontractor blinded onsite b/c no lights] whether injuries
involving a negligent Π and more than one negligent Δ allow recovery:
A) Wisconsin rule: only from Δs more negligent than Π; or
B) Unit rule: from all neg Δs; as long as Π’s negligence is less than all Δs’ combined
total neg ~ B) Unit rule
Rule: Π’s share of negligence must be compared to the sum of the shares [the combined
percentages] apportioned to the other negligent actors  Π’s share < sum of all Δs =
recover from each Δ!
Hold: Π’s neg = 30%; combined Δs’ neg = 70% ~ this Δ [Texaco] was only 10% neg,
and the other [Wood Wire] was 60% neg—Woof Wire was out of the suit b/c of
worker’s comp, so Δ was the only one to sue!  Δ has to pay 70% of the total damages
= $30k!
1) Unique problem for Modified CF! ~ would never arise in Contrib [Π couldn’t recover
anyway] and wouldn’t matter in Pure CF [Π will recover their percentage regardless of
the proportion of their fault]—no other system utilizes the comparison analysis!
 Only Mod CF courts consider if any recovery is permitted based on Π’s
apportionment
2) Rationale: rejecting the Wisconsin rule ~ agst public policy!
a) Conceptual issues: comparisons have the capability to involve a total percentage of
fault that goes above 100%--makes more sense to limit to only 100%

Page 40
 b) Pragmatic issues: the more Δs cause Π’s harm = the less likely Π is able to recover:
if three Δs contributed to Π ‘s injuries and the jury apportions fault equally to all four
parties, Π would be unable to recover in a 49% rule jurisdiction even though they
are only 25% at fault! ~ super unfair, big reason for rejection
B. Assumption of the Risk
 Different from primary A of R: primary is just one way to show Δ acted reasonably; these are true
affirmative defenses based on Π’s decision to willingly confront danger created by Δ’s
negligence
1. Express Assumption of the Risk = Π has promised not to hold Δ liable for its own neg, prior
to the injury ~ a written liability waiver to go skydiving.
2. Secondary Implied Assumption of the Risk = Π has knowingly and voluntarily decided to
encounter a risk previously created by Δ’s negligence ~ seeing signs to not enter an area w/ a
damaged bridge, but choosing to enter anyway and getting injured on the bridge = no claim
because Π knew about the dangerous condition and proceeded voluntarily regardless.
1) Express A of R: Π has outright promised to not hold Δ liable for neg prior to an injury via an
exculpatory clause ~ a written clause [contract!] where Π agrees to not sue!
 Δ must overcome two hurdles to prevail on exculpatory clause: can’t offend public policy in
terms of enforcement and must be worded w/ sufficient clarity releasing Δ from liability
[Public Policy and Drafting]
 Put another way: the exculp clause must 1) comport w/ public policy and 2) must cover
the actual injuries suffered and thus the actual liability alleged
a) Public Policy  the Tunkl Factors
- Tunkl v. Regents of Univ. CA Hospital (1963): [patient signed exculp clause while
sedated, later died of injuries] whether the exculp clause in the K between Π and Δ re:
Π’s medical treatment that releases Δ of all liability unless shown to be “negligent in
hiring practices” could be valid ~ No
Rule: an exculpatory clause is valid only if it does not involve the public interest
[private? maybe valid!]; use of the Tunkl factors to indicate whether a power dynamic
exists that req. protection of injured party—member of the public could be anyone!

Page 41
Majority: Tunkl factors are used to determine whether an entity is engaged in
providing public services.
a) Entity is engaged in performing a service of great importance to the public;
often a matter of public necessity; for members of the public.
b) Entity holds itself out as willing to perform this service for any member of the
public.
c) As a result of the economic setting of the transaction, the party invoking the
exculpation clause possesses a decisive advantage of bargaining strength agst
any member of the public.
d) In exercising a superior bargaining power, Entity confronts the public with a
standardized adhesion contract of exculpation.
e) As a result of the transaction, the person or property is placed under the control
of the seller [Entity], subject to risk and carelessness of the seller.

 Not all factors need be present ~ simply guide the court in determining
whether an exculpatory clause violates public policy because it involves
the public interest

Hold: exculp clause = invalid ~ void as agst public policy: thus Δ was not immune to a
negligence suit! As a public interest entity, the hospital is req’d to comport w/ public
policy and public interest, and having a patient sign a liability waiver while sedated
certainly doesn’t comport w/ public policy! [here, every factor weighed in favor of Π!]
1) Exculp clauses at intersection of different aims: tort law v. K law ~ completely agst tort
law goals but we’re supposed to protect parties’ right to contract
 Courts have basically compromised: enforce clauses as long as they don’t violate
public policy—more applicable in private matters to assign/diminish duties only
between the parties to K
 Tunkl factors: two categories ~ whether transaction is truly a private matter
and whether Π actually and voluntarily agreed to the clause.
2) Examples: wide variety of circumstances!
a) High school req’d parents to sign a release for the school’s athletic programs—
struck down because parents can’t waive children’s rights anyway and unilaterally
waiving all liability like that is way agst public policy and schools certainly fall
under the public interest!
b) Employee releasing employer from neg. in the work environment—struck down
because standardized adhesion K and power dynamic!
c) City of Santa Barbara: exculp clause barring recovery even for grossly negligent
and intentional conduct—struck down because wayyyy out of pocket, definitely
public interest and wow just all the factors.

Page 42
 3) Rationale for Public Policy as an Exception: similar to unconscionability—where K
doesn’t represent a free choice on the part of one party [Π], and they are forced to accept
the clause by the necessity of the situation ~ courts will refuse to enforce
 Where assumption of risk for another’s conduct cannot [in good conscience] be
accepted: economic and social necessity leading to disparity in bargaining power
 broadly applied in: employer/employee relations; one party has duty of public
service; Ks that try to exculpate one party from liability for violation of a
statute/regulation designed to protect human life; UCC 2-719(3): any K
limitation of consequential damages for injury = unconscionable

Problems pg. 494 ~ would court enforce or strike down [Tunkl factors!]
A. GD, a defense contractor for the US military, incl. an express A of R in its
procurement K w/ the US gov’t for sale of tanks—strike down ~ public int, public
service
B. A Tire company incl. a release in supply Ks w/ Ford ~ no liability for any defective
tires—strike down really broad, pub int because huge car company
 but maybe uphold b/c Ford has more bargaining power and could go elsewhere
for tires!
C. Trampoline Co. incl. a release on its website ~ can’t order a trampoline w/out
accepting a release online—uphold because private transaction, and customers can
buy elsewhere; not a necessity!
D. Lease: exculp clause releasing LL of all liablity for negligence in the common areas
of the property—struck down ~ diff in bargaining power; way agst public policy ~
necessity!
E. Scuba diving school req. students to sign a release/waiver before receiving
instruction—upheld because totally private transaction; not a necessity; not forced!

b) Drafting  must have sufficient clarity ~ Π must know precisely what they are waiving!
 Even if an exculp clause survives a Tunkl analysis, court may still strike down because
of insufficient clarity in drafting!
- Alack v. Vic Tanny Inc. (1996): [health club exculp clause] whether the exculp
clause was sufficiently clear to be found valid by the court ~ No
Rule: Reasonable person must understand: a K clause exonerating one party from
future negligence liability must be strictly construed agst the drafting party! ~ req.
clear, explicit, unambiguous, unmistakable, and conspicuous language to actually
release that party from liability
 Must effectively notify the signing party of the precise release [incl. exact
claims] they are agreeing to; general language will not suffice! ~ clear notice of
drafting party’s intent!—Express Negligence Rule!

Hold: the clause must be written so that a reasonable person can easily discern what
they are signing away on the four corners of K! Must be clearly expressed!

Page 43
  The clause did not expressly release Δ from injuries resulting from its own
negligence—exculp clauses in K releasing individuals/entities from their own
future negligence are strictly construed agst party claiming the benefit.
- To be held as valid, the clause would req. clear, unambiguous,
unmistakable and conspicuous language to release party from their future
negligence.
1) Strict scrutiny—even if they would pass the public policy analysis, courts will strictly
scrutinize and construe any exculp clause agst the drafting party [party invoking its
protection] ~ in Vic Tanny, court demanded, as a matter of law, that K expressly
indicate the exact claims being released (Vic Tanny’s own negligence) in clear and
conspicuous language—Express Negligence Rule!
2) R2d Torts view = Π who by K or otherwise expressly agrees to accept a risk of harm
arising from Δ’s negligent conduct cannot recover for such harms ~ unless the K is
invalid as contrary to public policy and there is a showing that Π was aware of and freely
agree to the release
 Π must have given assent to K terms—particularly where K is drawn by Δ, and Π’s
conduct is merely that of a recipient, it must be demonstrated that the terms were in
fact shown to Π and understood by Π before any finding that Π accepted the terms.
2) Secondary Implied A of R (SIAR)

Implied Assumption of Risk: Π consented to assume a risk through either conduct or actions [not
through K!]  two categories: Primary and Secondary
primary implied assumption of the risk secondary implied assumption of the risk
Δ has no duty to protect Π from a specific risk Δ is negligent or does owe a duty to Π, but Π
because Π has knowingly and willingly knowingly and voluntarily assumes the risk
accepted risks inherent to the activity anyway.
 Δ owes no duty, and so no neg!  the  This is an affirmative defense ~ Δ was neg,
Flopper case! but Π knew that and took the risk anyway,
on their own!
 PIAR = completely bars Π’s recovery
SIAR = permits some recovery in certain cases depending on:
1) whether the risk was reasonable or unreasonable; and
a) Reasonable = example: tenant is injured when they enter their burning apartment
(started negligently) to save their child. SIAR = no bar to recovery
b) Unreasonable = example: tenant is injured when entering the burning apartment
to retrieve a hat. Unreasonably assumed a risk = likely bar to recovery
2) whether the jurisdiction follows qualified or unqualified SIAR.
a) Qualified = SIAR is applicable only when Π’s decision was unreasonable;
limited such that contrib will bar the claim ~ renders it unnecessary baggage?
[Riddle]

Page 44
 b) Unqualified = SIAR is applicable regardless of Π’s reasonability, so long as all
remaining SIAR elements are present [Schroyer]

Elements of SIAR ~ Π must:

1) Have actual knowledge of danger;
2) Appreciate the gravity of the danger; and
3) Voluntarily expose themselves to the danger;
 actual/objective and subjective knowledge!
4) [reasonable or unreasonable]

a) Qualified SIAR
- Riddle v. Universal Sport Camp (1990): [cheerleader fell from pyramid] whether Π
assumed the risk re: other Δs by signing an exculp clause w/ camp Δ only ~ Yes
Rules: implied AR exists whenever Π has either:
1) Engaged in an activity where inherently dangerous conditions exist [PIAR]; or
2) Voluntarily engages in an activity w/ known/obvious risks created by Δ’s neg
[SIAR]
 Reasonable v. Unreasonable—weighing the utility of the conduct w/ the
risk involved: if risk = unreasonable, SIAR applies! (not for reasonable)
 Π has impliedly assumed risk when they:
1) Have actual knowledge of the danger;
2) Appreciate the gravity of the danger; and
3) Voluntarily expose themselves to the danger.
Hold: SIAR contemplates a voluntary encounter w/ a known and obvious risk created by
Δ’s negligence—cheerleading generally, but especially being on top of a pyramid are
certainly known and obvious risks, esp. to an experienced athlete like Π!
 It would be unreasonable as a matter of law for Π to risk a fall of ~15ft. knowing
there was no spotter to catch her
 Thus, SIAR is not barred; no recovery for Π!
b) Unqualified SIAR
- Schroyer v. McNeal (1991): [slipped on ice Holiday Inn parking lot] whether Π could
hace assumed the risk of her injuries, or is only accountable for contrib neg ~ SIAR!
Rule: when Π voluntarily acts to intentionally expose themselves to a known danger
[even caused by Δ’s neg], any duty Δ had to act reasonably for Π’s safety is superseded
by Π’s willingness to take a chance for their own convenience—negligence is not an
issue and proof of neg is not req’d! ~ distinguishes assumption of risk from contrib neg!

Page 45
  Contributory negligence or Assumption of risk: Π who proceeds reasonably with
caution, after voluntarily accepting a risk not unreasonable in itself, may not be
guilty of contributory negligence but may have assumed a risk.
Hold: Π saw and appreciated the risk of parking/walking on snow and ice, but chose to
take the chance in favor of the convenience of parking close to her hotel room. Π
voluntarily took the risk with full knowledge of the dangerous condition indicating her
willingness to accept the risk and relieving Δ’s of any duty to her!
 Although Π may have been reasonable in exercising caution while walking over
snow and ice, she indicated her willingness to risk and thus relieved Δ from liability.
 Π assumed the risk of her injury as a matter of law!
c) Comparative Fault ~ abolish SIAR?
 Frequent overlap of SIAR and Contrib ~ does rejecting contrib necessarily reject SIAR?
- Davenport v. Cotton Hope (): [] whether, under comparative fault, assumption of the
risk could completely bar recovery ~ No
Rule: WV Rule—comparative; a claimant is not barred by SIAR unless their degree
of fault equals/exceeds [49% rule!] the combined fault of the other parties (Δs) =
abolished; not a complete defense ~ to hold as a complete defense would be
repugnant to the fault system
Hold: SIAR is thus abolished and subsumed within Π’s comparative fault.
 Rejected RI Rule: contrib and SIAR do not overlap ~ key difference = Π’s
exercise of free will in encountering the risk, thus a negligence analysis has no
place in AIR framework: when one acts knowingly, whether one acts
reasonably is immaterial
 Hard line between the two—contrib = objective; RPP and AIR = subjective
1) Express, PIAR, and SIAR ~ essential differences
a) Express—parties expressly agree in advance to relieve Δ of their duty to Π; mostly
sounds in K law, not tort
b) Implied—Π implicitly [not expressly] assumes known risks
1. PIAR—Π assumes the risks inherent in an activity
 Not a true affirmative defense: goes to the initial determination of whether
Δ’s legal duty encompasses the risk encountered by Π [attacks a prima facie
case w/ question of whether duty existed at all] ~ focus on Δ’s duty, not Π’s
conduct.
2. SIAR—Π knowingly encounters a risk created by Δ’s negligence; may involve
either reasonable or unreasonable conduct on the part of Π
 Is a true affirmative defense: only asserted after Π makes their prima facie
case for Δ’s negligence

Page 46
 2) Rescue Doctrine: one of the two functions of the doctrine = invalidate any attempted
SIAR defense! ~ rescuer could be deemed to have knowingly and voluntarily encountered
a risk by engaging in rescue efforts, thus applying SIAR would be unfair and would
discourage rescuers from acting at all [since contrib and unqualified SIAR are mostly
abolished, this function has little utility modernly]
C. Immunity—based on Δ’s status or special relationship between Π and Δ
1) Sovereign Immunity: ComLaw doctrine immunizing the gov’t from liability
a) Federal Gov’t
 Fed Tort Claims Act [FTCA] = partial waiver of sovereign immunity ~ US is liable in
the same manner and extent as a private individual under similar circumstances
 Exceptions: incl. the discretionary function exception [DFE]—any claim based
on the exercise; performance; or failure to exercise/perform a discretionary
function or duty is not actionable whether or not the discretion is abused.
- Cestonaro v. US (2000): [USVI parking lot murder]
1. whether the gov’t’s failure to maintain lighting and to post warnings of crime were
discretionary functions and thus subject to a FTCA waiver exception ~ No
Rule: two-part test for discretionary function:
1) Does the discretion exist? ~ No = not exempt!
2) Is the discretion subj. to policy analysis? ~ No = not exempt!
 Cannot be grounded in the policy of the regulatory regime ~ exception
applies only if the challenged action is based on the purposes that the
regulatory regime seeks to accomplish
 Even when the challenged conduct involves an element of judgment,
that judgment must be of the kind that the discretionary function is
designed to shield (must be w/in the scope)
2. Whether the gov’t’s objective to restore historic appearance to the area: expressly
not adding lighting/warning signs would be waived under the DFE ~ No
Rule: the gov’t need not undertake maintenance of the light, but the gov’t did install
them—once the gov’t has exercised discretion to erect the lights, it was obligated to
maintain them [no duty until you act!]
 Other limitations of fed gov’t liability: no strict liability; no intentional torts; no
pre-judgment interest; no punitive damages; all FTCA claims are fed courts’
exclusive SMJ; not entitled to jury trial
b) State and Local Gov’t ~ gov’t v. proprietary dichotomy
 When a state/local gov’t is performing a task or service considered governmental =
immunity from suit; but when the task/service is proprietary = no immunity exists.

Page 47
 - Campbell v. Indiana (1973): [] whether the state still recognizes the doctrine of
sovereign immunity re: state proprietary actions ~ No
Rule: the doctrine is not available to state gov’ts anymore than it is for localities ~ if
the state is charging $$ for a service, then it is proprietary and any claim arising
from that function is not subj to sovereign immunity.
 Still immunity for legislative and judicial functions; discretionary acts/omissions
of state or state employees; any other solely governmental functions

2) Spousal and Parental Immunity: intrafamilial immunity

a) Spousal ~ no longer exists!
b) Parental ~ only if parent breached a general duty of care to the world!
D. Statute of Limitations and Repose—nothing to do w/ factual merits of a case!
1) Statutes of Limitation
 Complete bar for actions that don’t meet time limits [usually ~ 2 or 3 years after injury]
1) Accrual = time for filing begins (after injury/harm occurs)
2) Tolling = stop the clock! ~ a few key exceptions to the accrual!
1) Π is a minor at the time of injury
2) Discovery rule:
1. Inherently undiscoverable and
2. Evidence is objectively verifiable
3) Fraudulent concealment by Δ:
1. Δ knows of wrongful conduct and conceals it from Π; and
2. Π didn’t know/couldn’t have known through exercise of reasonable diligence
a) Accrual of a Claim = time to file begins
- Crumpton v. Humana (1983): [injury after surgery after 3 yr SoL] whether the injury
could be properly classified as unascertainable and thus still actionable ~ No
Rule: injury is done when the act bringing the actual tort inflicts damage that is
physically objective and ascertainable—when the harm occurs!
b) Legal Injury Rule
- S.V. v. R.V. (1996): [alleged sexual abuse repressed] whether the discovery rule
should be applied to Π’s allegations ~ No
Rules: for the discovery rule to apply, two elements must be balanced:
1) Benefit of precluding old claims; vs.
2) Risk of precluding meritorious claims.
The injury must have been inherently undiscoverable and evidence objectively
verifiable

Page 48
 Hold: Π satisfies only the inherently undiscoverable req’mt, but given the distance
between her allegation and the occurrence of the harm, the evidence could never be
objectively verifiable, and so allowing the claim would be unjust to Δ.
 Discovery Rule Exception
2) Statutes of Repose—limits potential liability by limiting the time during which a cause of action
could arise ~ can bar a claim before injury even occurs! [i.e. ~ architects; engineers—claims for
faulty construction can arise only w/in 10 years of completion, etc.]
6. Strict Liability
A) Unusually Dangerous Activities
B) Animals
1) Wild
2) Trespassing Domestic
7. Defamation = false words spoken in secret and designed to tear apart reputation
 You have a right to protect your good name!

NC Defamation elements
1) False statement of fact
2) Cause of injury to Π’s reputation
3) Of and concerning Π
4) Published to a 3P
 Strict Liability! ~ no burden on Π to prove fault
What is defamatory? ~ false statements of fact that harm another’s reputation—encompasses both Libel
[written defamation] and Slander [oral defamation]
I. Elements of a Claim: can involve libel or slander; viewed as intentional tort, negligence, or strict liability
depending on era, circumstances, and possible privileges (from Com Law, statutes, and US Const!)

A. False/Defamatory Statements
1) Early Application

- Burton v. Crowell Pub (1936): [Camel penis ad] whether Π’s unflattering photo paired with
the ad text could be actionable libel even though a reasonable person would be able to
recognize the photo was a camera mishap ~ Yes
Rule: if the interest invaded is one which the law protects and Π has been substantially
exposed to ridicule/contempt, Π has an actionable claim unless Δ can show they were telling
the truth.

2) Modern Application
- Busch v. Viacom (2007): [Daily Show bodybuilder] whether Π has stated a claim for
defamation re: his image being used in a satirical TV show involving a fake endorsement that
would survive a 12(b)(6) MTD ~ No
Rule: to prove defamation in TX, Π must show:

Page 49
 1) Contains actual assertions of fact:
2) The assertions are defamatory: injurious to Π’s reputation;
3) The assertions are false;
4) Where Π is a public figure ~ Const. demands proof of actual malice.
 Π’s claim alleged no assertions of fact, therefore the claim was dismissed.
- Henderson v. Henderson (1996): [divorce defam.] whether Π could be rntitled to pun. dams.
as a result of Δ’s continuous/repeated defamation via letters to Π and to 3Ps, and checks to Π
following their divorce ~ Yes

1. Rule: to prove defamation, Π must prove:

1) False and defamatory statements ab another [Π]

 Doesn’t have to be defamatory to the entire world! Distinct Minority

2) Unprivileged communication to 3P
3) Fault amounting to at least negligence on the part of the publisher [Δ]

 What is publication?—term of art in defamation; interpreted broadly ~ any

utterance made to another or any written statement shown to a 3P will constitute
publication! Doesn’t matter if Δ knows it’s untrue!
- Re-publication: a 3P who continues spreading defam. in the form of gossip
may be just as liable as Δ! Doesn’t matter if 3P knows it’s untrue!
- Possibly SL!

4) Damages

2. Rule: Π is entitled to pun. dams if Δ’s conduct req. deterrence/punishment over and above
comp. dams. alone. A showing that Δ acted in malice or bad faith is req’d to award pun.
dams.
Damages: some courts (like in Henderson) req. a showing of some damages to have an
actionable claim—some special econ dams, such as from losing a job.
 BUT some courts permit recovery on presumed damages to Π’s reputation ~ no proof of
any reputational injury!
 Punitive Dams Submission: punitive dams = commission of tort + aggravating
circumstances [malice; gross neg.]; if Π can prove that Δ’s false utterance was
motivated by ill will toward Π or grossly neg. lack of concern for the truthfulness of
the statement, then Δ may be liable for pun. dams.

Page 50
Related Causes of Action:
Right to privacy = the right to be left alone
a) False Light: Δ announces false info ab Π; doesn’t req. defam!
b) Publication of Private Facts: Δ reveals private info ab Π to the public; liability even if info is true,
if court determines public had no legit need to know
c) Intrusion into Private Affairs: conduct like spying on Π (rare)
d) Misappropriation of Name/Likeness: for commercial exploitation ~ cause of action exists as long
as Π has not consented to the use and Δ is capitalizing on the name/likeness [news reports don’t
count!]; Exceptions: parody and satire
 Defamation is distinguishable b/c it specifically protects reputation, not the right to be
left alone.
Business torts
a) Business disparagement: Δ makes false factual assertions re: Π’s business/products and it causes
financial harm
b) Commercial defamation: company is subj. to false reports ab financial health or business ethics—
no other topics!

3) Comparisons
1) Defamatory Statements: Burton—court was willing to recognize a defam. claim absent of
factual assertions re: Π, reasoning that the photo made a caricature of Π, making him subject
to ridicule and contempt and thus Δ was found liable for defam.
Busch—court refused to recognize defam. claim b/c Δ made no factual assertions re: Π [this
is key! Without the assertion, there is no case], and parody/satire are not grounds for defam.
unless Δ shows actual malice.
2) Truth v. Falsity: Split Auth!
a) Π proves falsity as an element of defam. or
b) Δ must plead and prove truth as an affirmative defense.

 Then Δ has an obligation to plead or else the defense is waived!

- Not always critical—whether considered as element or defense, if jury finds the

assertion true, all modern courts agree that no liability can attach for defam!
 Fault

a) ComLaw = defam was strict liability! Π were not req’d to prove Δ had
knowledge of falsity when the utterance was made ~ if factfinder
found the statement untrue, then Δ was liable for defamation,
regardless of good faith.
b) ModLaw = law may demand some type of fault to be proven
 Burden of Proof only matters when evidence is equivocal!

- Hypo: pg. 839 ~ body language [“broad smile”]; “he’s a republican!” not really injury,
depends on audience? Not running for office
B. Libel v. Slander ~ two “types” of defamation

Page 51
Most states = ONE YEAR SoL!
Libel = expressed by print, writing, pictures, or signs

 More permanent  generally considered the more serious infringement

Slander = oral utterances or bodily gestures

Distinguishing the two: doesn’t always matter—new technology [radio, TV, internet]
1) Maj: treat defamation in these forms as libel ~ power, permanence, ability to spread
2) Min: distinguish b/t utterances on TV/radio made w/ a script and w/out a script [ad libbing]
- Agriss v. Roadway Express (1984): [opening mail slander]

1. whether the communication of Δ’s false accusation of Π to Π’s coworkers could be

actionable defamation ~ Yes

Rule: 1) court determines whether the communication could be defamatory; then 2) a

jury determines whether it actually was understood as defamatory to recipients.
 Factors: blackens reputation; expose to public hatred, contempt, ridicule; injures in
business/profession [most common]; and [critical!] nature of the audience

 Π’s pleading ~ matter of law = could it be defam?  matter of fact = is it

actually defamatory?
2. Whether Π needs to show specific dams. or harm in order to recover ~ No

Rule: Π in a libel suit need not prove specific dams/harm in order to recover; they may
recover for any injury done to reputation (or any other injury) for which the libel is the
legal cause.

 $$$ dams aren’t always the affected area [thus not easily ascertainable] for
defamation

Special v. General Dams: compensatory dams

a) Every type of defamation suit permits special dams ~ econ losses caused by the defam. claims

 Lost job; lost business opp; lost K relationship; other out-of-pocket losses

b) When general dams are available, courts permit jury great latitude in assessing the amt after
it’s clear that some injury has occurred.
c) Proof of publication = presumption of gen. dams.

- Single-Publication Rule: each edition including the defam statement = 1 Claim; not a
separate suit for each person who reads the statement—prevents repeated suits on same
claim and permits Π to recover all dams in one suit.
- Internet publication?—whether an entry [publication] gives rise to one single defam suit
or a new count of defam for each day it remains is unsettled!

d) Other circumstances—Factors
1) Π’s prior reputation

Page 52
  Defamation-Proof Π: rarely courts will deny recovery if Π’s reputation is
already so poor in the community that the defamatory statements could not have
caused harm [recovering only nominal dams]
2) Nature of defamatory utterances
3) How widespread the publication is
4) Whether the audience believed the Π’s truth
5) Whether Π was able to redeem their reputation [mitigation]

Slander per se = clearly injurious on its face or with explanation

1) Crime
2) Disease
3) Shortcomings in business/profession
4) Unchastity [women]
 Presumed and spec. dams.

All others = Slander per quod

 Recover only spec. dams/econ losses

Libel: once proven defam, can sustain action for gen, presumed reputational harm and spec. econ dams

Written statements that are defam on their face are libel per se—no add. explanation or contextualization
necessary!

Libel per quod req. add. explanation to be found defam; otherwise “innocent”

- Inducement: plead and prove extrinsic facts imputing the defam meaning
- Innuendo: the defam meaning

Trad Rule = treats LPS and LPQ exactly the same once proven to be defam; ALL defam statements can give
rise to both gen, presumed dams and spec. dams.

Page 53
 Practice ~ libel or slander? Per se or per quod?
A) R interviews S for a research facility job. After to interview, R looks at S’s facebook page and sees a post
from one of S’s old coworkers: sorry you were fired for plagiarizing research. The coworker was
confused about S’s termination. R decides not to hire S.
 Libel per se ~ defam on its face
B) B is jealous of P’s promotion, so she writes “P is a floozy” on the bathroom mirror. P hears people
whispering about the allegation.
 Slander per se and libel per se ~ clearly injurious and defam on its face!
C) L is an astronaut. His former friend, S, tells L’s boss that he gets motion sickness and L loses his chance
to go on a space mission. Then, L loses a book deal as a result.
 Slander per se ~ clearly injurious
D) The newspaper writes a large headline: A confesses guilt. The story is about A’s new ice cream shop and
the confession is of her love for chocolate ice cream that she indulges daily.
 Libel per quod ~ req. additional explanation, otherwise innocent
E) The local news does a story about L and erroneously attributes a quote to her: I hate the outdoors; I’d
rather sit in a dentist’s chair than go for a walk. L is the head of the local parks and rec. Her coworkers
now ridicule her.
 Libel per quod ~ req. additional explanation (would likely be actionable)

II. Privileges: play a role as important as affirmative defenses!

 Certain communications are so highly valued ~ speech otherwise actionable is protected!

Two Types: Absolute + Qualified

1) Absolute = privilege automatically attaches; there is no defam claim for the communication
Two main sets of circumstances:
a) Operation of various branches of gov’t; and
b) The institution of marriage.

 No amount of ill will or bad faith can give rise to a defam claim.

2) Qualified = circumstances may or may not warrant immunity from a defam claim

1. Speaker/publisher and recipient have a common interest, and

2. communication is reasonably calculated to further that interest
 broad rule ~ only applies when court believes it has sufficient value to justify protection
a) Arises in cases where society has interest in promoting free, but not unfettered, speech.
b) Can be revoked/defeated by evidence of some malice ~ bad faith; recklessness; abuse
c) Malice or excessive publication

A. Common Law

- Johnson v. Queenan (2000): [rape defamation case]

Page 54
 1) Whether Π’s communications with the police, the prosecutor, and the Grand Jury are
subject to absolute privilege ~ Yes
Rule: Absolute = complete defense even if maliciously uttered/in bad faith; statements
made in the course of judicial proceedings and pertaining to the proceeding are
absolutely privileged and cannot support a defamation claim.
2) Whether Π’s statements to her close friends, her mother, and the doctor and nurse who
examined her at the ER are subject to a qualified/conditional privilege ~ Yes
Rule: Qualified/conditional = Δ is immunized from liability unless they acted with
malice, there is unreasonable and excessive publication, and the defam was
communicated recklessly. Conditional privilege protects statements where publisher and
recipient are working for a common interest and the communication was reasonably
calculated to protect or further that interest [here, Π’s wellbeing and health]

- Lester v. Powers (1991): [psych professor defam] whether Δ’s statements, asked for by the
college for the purpose of tenure review, could be defended from a defam claim by a
conditional privilege ~ Yes

Rule: A conditional privilege arises in settings where society has an interest in promoting
free, but not unfettered, speech.
Once it attaches, the speaker can only lose the privilege by abusing it, such as by knowing the
statement is false or reckless disregard for its veracity.
This court uses the Restatement approach: the court must weigh the privilege based on the
totality of the circumstances  any situation where an important interest of recipient is
furthered by frank communication may give rise to a conditional privilege.

 Caron test: to determine whether a comment is an opinion (and thus privileged) or not—
it is an opinion if it is clear from the surrounding circumstances that the speaker did not
intend to state an objective fact, but rather to make a personal observation of the facts.
 May still be actionable if it implies the existence of undisclosed defamatory facts.

Reasoning: Public Policy—a tenure review is basically just a job performance review ~ if all
performance reviews could be subj. to defam claims, no one would be honest. All of society
would suffer from inaccurate performance reviews and the eventual inadequacy of the
workforce, all for fear of being sued.

B. Constitutional Privilege: defam claims come with 1st Amd concerns ~ freedom of speech
 Public Officials: must prove by clear and convincing evidence both falsity and that
speaker published the comments with actual malice: knowledge of the falsity or gross

neg.  impose a qualified/conditional const privilege for certain speech involving

certain victims

1. Public Matters [public officials and figures]

Page 55
- Khawar v. Globe International (1998): [RFK assassin case] whether Π is a private or a public
citizen for the purposes of the defam action ~ Private

Rule: to be a public figure, Π must either

a) possess such pervasive fame/notoriety that they become a public figure for all purposes,
in all contexts; or
b) [more commonly] Π voluntarily injects themselves/is drawn into a particular public
controversy and thereby becomes a public figure for a ltd. range of issues
 this determination is a question of law, and only if one or both of the
determinations is present.
 Party charged w/ defam cannot, by their own conduct, create their own defense by
making the claimant into a public figure when they are not!

PH ~ Π sued for defamation.

TC: jury found Δ’s statements were false and defamatory and were published negligently
and with malice, and awarded Π damages for injury to his reputation and emotional
distress, incl. punitive damages.
CoA: affirmed, finding that Π was a private figure, that Δ’s article was not protected by
any privilege, and that the evidence supported a finding of negligence and actual malice
1) Public officials: usually gov’t—those who appear to have substantial responsibility
for/control over the conduct of affairs, such that the public has an independent
interest beyond they general interest in gov’t.
2) Public v. Private: non-gov’t public figures ~ can protect their own reputation
through the media—gen-purpose public figures

- limited purpose public figures = only well-known in a certain context.

3) Private figures defamed over public matters: actual malice is req’d to justify an
award of punitive or general dams, but actual dams are available for ordinary neg.
2. Private Matters

- Dun & Bradstreet v. Green-Moss (1985): Whether Gertz applies when the false and
defamatory statements do not involve matters of public concern, and whether Π’s false
credit report involved a matter of public concern? ~ No and No
Rule: The Gertz standard does not apply when the publication involves no matters of
public concern and nonmedia publications [incl. credit reports]—awards of presumed
and punitive damages are allowed, even absent a showing of actual malice. Thus,
nonmedia publications are held to the same standard as the normal defam.

 Under the factors: to determine whether speech is of public concern, the content,
form, and context as revealed by the whole record must be analyzed. Here, it is
Π’s credit record concerns no public issue.

Page 56
 Facts: Π is a credit-reporting agency that provides subscribers with financial
information about businesses. All of the information is confidential—under the terms
of the subscription agreement, subscribers may not reveal it to anyone else.
7/26/1976: Π sent a report to five subscribers indicating that Δ, a construction
contractor, had filed a voluntary petition for bankruptcy. This credit report was false
—grossly misrepresented Δ’s assets and liabilities.
PH ~ Δ sued for defamation; sought both compensatory and punitive damages. TC
awarded both; CoA reversed holding that Gertz does not apply to nonmedia
defamation claims.
Hold: nonmedia speech is different from media speech of a private figure. Actual
damages would be awarded either way with less than actual malice, but the issue is
allowing punitive and presumed damages in incidents of nonmedia speech. Under
Gertz, actual malice is req’d to award punitive damages, but the court holds that
nonmedia speech does not have the Constitutional protections that media speech has
in regards to punitive and passive damages.

8. Business Torts ~ applying tort claims to business transactions

Typically only involve financial injuries, nothing else!
 The Stalwarts: fraud; negligent misrep; tortious interference w/ contract/prospective business relations
 Key Issue: [arises frequently] when Δ’s actionable conduct that gives rise to the tort claim also
involves breach of agreement, should the court recognize the tort claim or limit the scope of the
action to breach of contract recovery?—what is a tort?

1. Fraud ~ business v. business; consumer v. business

 Designed to protect the integrity of business transactions ~ the right to trust/rely on statements and
assurances of others
Fraud is very versatile ~ actionable across many areas of law
a) affirmative defense in enforcement of K duty
b) fraudulent transactions to avoid the extinguishment of debt
c) fraudulent concealment as an affirmative defense of a statute of limitations/repose
d) rescission of K
 Tort Claim = common law fraud in an effort to recover for econ losses assoc. w/ a business transaction
 Business tort fraud has punitive dams available—not available in K-law!

A. Misrepresentations
1) Existing facts or Opinions based on facts

- Trenholm v. Ratcliff (1983): [trailer park] whether Δ’s statements were his opinion or
predictions of what may happen to the trailer park, and thus aren’t actionable as fraud ~ No

Page 57
 Rule: pure expressions of opinion are not actionable unless the speaker: 1) has knowledge of
its falsity; 2) purports to have special knowledge of facts that will occur; 3) expressed
opinion based on present/past facts. A jury finding of recklessness or special knowledge
establishes a basis for fraud.
Facts: Π was a homebuilder and Δ was a land developer.
1. In late 1975, Δ entered into a joint venture agreement w/ a Savings&Loan to develop
and sell lots in Greenhollow subdiv.
2. Δ held a draw meeting to recruit builders to the project, incl. Π. Δ repeated mult. times
that a nearby trailer park would be removed before the lots were completed and ready to
sell. Π specifically asked about the park’s disposition. Δ answered that 1) the park had
commercial zoning; 2) it had already been sold; 3) the tenants had been notified of the
termination of their leases; and 4) it would be empty by April and graded by July.
3. Π built 18 houses in Greenhollow—6 built on his acct and 12 built pursuant to the joint
venture w/ the Savings&Loan, w/ whom Π had to split his profits or losses 50/50.
4. The trailer park was not owned by anyone party to the joint venture. It was not moved by
the time Greenhollow was ready for sale. The subdiv did poorly.
5. June 1976—Δ held a meeting to discuss the slow sales. Π asked again ab the trailer park
and Δ then said the park would not be moved.
6. The houses were sold at a net loss. Π suffered $69k in out-of-pocket loss and $75k total
in lost net profits.
PH ~ TC jury found that Δ did make recklessly false representations [w/ malice] of material
fact w/ purported special knowledge to induce Π to purchase Greenhollow lots and that Π
reasonably relied.

 However, Δ asked for JNOV alleging that the jury’s finding of recklessness couldn’t
support a finding of fraud. TC found for Δ, and Π takes nothing. CoA affirmed.

Hold: the court reversed, finding that Δ’s representations went way beyond opinion and had
induced Π to purchase lots in reliance on his statements. Even if Δ thought the trailer park
might be removed before Greenhollow opened, he made no effort to check his facts, and
therefore his misreps were made recklessly, which does support an action for fraud.
a) Elements:
1. Material misrepresentation
2. Falsity
3. Made w/ knowledge of the falsity or reckless disregard for the truth
 Intent/Mens Rea—recklessness is adequate!
4. Intending for Π to rely on the misrep
5. Actual and justifiable reliance on the misrep by Π; and
6. Actual harm suffered as a result of the reliance.

Page 58
 b) Scienter = knowledge or recklessness
- Proof of Knowledge: circumstantial ~ other statements by Δ; proof of true
information
- Proof of Recklessness: proof that Δ had sufficient info available at the time of the
misrep to cast significant doubt on its truth.
 Inadequate proof?  negligent misrep*
c) Punitive Damages—juries may consider punitive dams in fraud actions, but they must plead
their claim w/ particularity, meaning the complaint must have more substantial and detailed
facts than a typical civil complaint: pleads the spec. misrep, the name and circumstances of
the statement, facts demonstrating why the statement is false, etc.
d) When can opinions be actionable?
1. False opinion as to future events when speaker claims to have special insight
2. Insincere opinions
3. Opinions premised on past or present facts that are false.
e) Puffery: whether the statements could be considered potentially false statements of fact or
mere opinions that aren’t actionable ~ if found to be mere opinion/puffery, the claim is
dismissed.
2) Affirmative acts of concealment
- Lindberg Cadillac v. Aron (1963): [cracked motor box] whether Δ’s silence regarding the
cracked motor block that led to the car being damaged and sold at a loss could constitute
an action for fraud ~ Yes
Rule: Silence can be an act of fraud ~ when Δ knowingly allows Π to be deceived as to a
material fact of the transaction by not speaking up to correct Π, that silence is grossly
fraudulent and may be treated as such in any court. A representation isn’t limited to
words or assertions, it may incl. deeds and acts of a nature calculated to mislead and give
the speaker an unfair advantage over Π.
Facts: Π was a car dealership. Δ had come to trade in one of his vehicles toward the
price of a new car, which Π had sold to him.
1) Δ had entered trade negotiations w/ Π earlier in 1959, but they hadn’t been able to
reach an agreement, so Δ retained the car.
2) October 1959: during a cold spell, Δ took the car to a service station to thaw and
refill the anti-freeze. During the service, the mechanic found two cracks in the motor
block. He told Δ that a new block would be ab $500, but offered to put some
temporary sealer on the cracks to make everything look okay for the trade-in. Δ
accepted and the cracks were concealed.
3) November 1959: Δ again went to Π ab trading in the car. They discussed the
condition of the car during the appraisal, but Δ did not mention the cracks in the

Page 59
 motor block. They reached an agreement and Δ sold the car and put the money
toward a trade-in.
4) Π paid Δ $2290 for the car, which was valued at under $2k, then spent an additional
$259 to recondition the care for resale. The sales managers drove the car around to
check for any problems and uncovered none.
5) December 1959: the care was sold for $2476, but the buyer returned the next day
b/c the engine was overheating. The car was fully checked out by Π’s shop and the
cracks were discovered. Π refunded the buyer for the full purchase price of the car.
It was later resold again to a different buyer [who knew ab the cracks] for $1200.
PH ~ Δ played dumb at TC—he claimed he had no idea what the mechanic had been
referring to and just told him to do the work. TC found for Π damages at $759, plus
costs.
Reasoning:
a) Concealment as Misrep—
b) Other Silence as Fraud applications:
c) Damages ~
d) Materiality of Information:

3) Promissory Fraud
- Smehlik v. Athletes & Artists (1994): [hockey K] whether a cause of action for fraud can
be sustained w/ an allegation that Δ made a promise to perform under express terms of K
while intending to breach ~ Maybe
Rules: A claim of fraudulent inducement can be supported by:
1) an allegation that Δ promised a performance
2) separate from their obligations under express terms of K
3) if it is also alleged that Δ made a promise w/ no intention of performing.
NY Courts are split: what about entering K w/ no intention of performing the exp.
terms?
1) 2d Dept.: fraud based on a breach of K claim can only be sustained if the supporting
allegations concern misreps collateral or extraneous to the express terms of K.
 Fraud = breach of K + misreps outside K terms
2) 3d Dept.: if Π is fraudulently induced to enter K, Π may join a claim of fraud to
their breach-of-K claim if the misreps are misstatements of material fact or promises
to perform under K were made w/ present, undisclosed intent to not perform.
 Fraud = breach of K + either misstatement of material fact or promise to
perform exp. terms of K w/ present intent not to perform.

Page 60
 Facts: Π, a Czechoslovakian hockey player, met with a Δ sports agent to discuss a
possible relationship agreement. Π had just been drafted by the Sabres NHL team and
needed to negotiate his K. The agent told Π that Δ could procure a professional hockey K
with the Sabres or another NHL team right away.
1) Π signed an agreement allowing Δ to act as his exclusive representative in
negotiating an NHL K. Δ agreed to use its best efforts to secure a K for Π. Δ
claimed that they periodically conducted negotiations w/ the Sabres entirely via
telephone and fax.
2) Approx. 2 years later, Δ still had not negotiated a K for Π. Π terminated the
agreement and found another sports agency that immediately procured a K w/ the
Sabres for Π.
PH ~ Π sued Δ in fed court, alleging common-law fraudulent misrepresentation. Π
claimed that through the sports agent, Δ misrepresented their capability in securing a
NHL K. Π also asserted that he reasonably relied on the sports agent’s
representations in signing Δ’s agreement. Δ moved to dismiss the complaint, arguing
that it improperly attempted to convert a breach-of-K claim into an action for fraud.
Reasoning: the court is just uncomfortable granting a 12(b)(6) when the NY courts are
split as to what constitutes an acceptable conversion from a breach of K to a tort fraud
claim. The court does conclude that Δ may have made fraudulent statements or
misrepresentations based on the complaint, and b/c there are factual disputes and lack
of clarity re: the standard, dismissing the claim is inappropriate: it is not beyond a doubt
that Π could present nothing that would entitle him to relief. Thus, it must move forward
to trial.
a) Promissory Fraud as a Tort Claim—most courts will recognize a broad form of prom.
fault: even in promises incl. in express terms of K, lack of intent to perform is an
actionable misrep of fact.
 Similar to an insincere opinion, and insincere promise re: Δ’s state of mind can
be actionable as prom. fault.
b) Contract v. Fraud: why? ~ Damages!
- Mere breach of K will not constitute fraud and will not give rise to a claim in
tort
BUT where Π can prove lack of present intent to perform a promise, a tort
cause of action in fraud exists!
- What’s the difference?
1) Applicable statute of limitations
2) Appropriate damages
3) Whether a liquidated damages clause can govern

Page 61
 4) Scope of discovery
5) Admissibility of certain evidence at trial
6) Punitive damages
c) Evidence of lack of intent to perform: [+ normal proof of fraud] Π must prove:
1) At time of K,
2) Δ had no intention of performing
3) as they represented to Π.
 Evidence: failure to perform [circumstantial, needs add. support]; Δ’s denial
that K exists [strong evid. fraud!]; performance was never possible [strong
evid. fraud!]
B. Justifiable Reliance ~ exam!

- Judd v. Walker (1908): [exaggerated deed] whether the rule of caveat emptor should apply to Π
because his agent visited and viewed the land, even though Δ made patently false statements as to
the acreage Π was buying, and then charged him for land he did not receive ~ No

Caveat Emptor = [buyer beware] buyer cannot recover damages from seller for defects or
misunderstandings re: the property that render it unfit for ordinary/expected purposes
- If the parties go onto the land and the seller points out the boundaries to the buyer and
states a number for acreage, and buyer relies and then buys the land  no action for
fraud exists
 Twofold Rationale
1) Parties should not rely on such statements
2) Parties were both upon the land, thus the means for info were equally available
to buyer just as much as seller
 Caveat Emptor—the true number of acres could be ascertained by
ordinary vigilance by the buyer

Rule: Where false statements and representations are positively made by a vendor re: the acreage of a
tract of land during negotiations [by the acre] are not regarded as opinions, but as statements of fact
and thus can constitute fraud.

 The owner of the property is presumed to know the facts regarding the property, thus anything the
owner asserts as fact may be reasonably relied upon by the buyer.
 The Threshold = conditions a buyer should observe on their own cannot constitute fraud
[caveat emptor applies], but conditions that a buyer cannot immediately notice and appreciate
must be disclosed by the seller, otherwise their silence or concealment is fraud.
 A reasonableness test—the observation made by ordinary care and attention exercised
by ordinarily prudent people in the normal course of business.

Facts: Π = Judd and his agent, Bourland. Δ = Naxera and his agent Walker.

Page 62
 1. Π agent traveled from MA to IL to purchase two tracts of land from Δ for over $1k. Πs were
unfamiliar with the area.
2. Δ agent told Π agent that the land for sale was an irregular shape—one tract was 80 acres and the
other was 98 acres. Δs both knew that Δ did not own 178 acres. Nevertheless, Δ agent drew up a
deed, executed by Δ, purporting to convey 178 acres to Π.
3. Π surveyed the land after the purchase and discovered that he actually only owned approx. 153
acres. Π sued Δ agent for fraud.
PH ~ TC: instruct jury: find for Δ; denied Π’s motions for JNOV and new trial. Π appealed.
CoA: reversed and held that Δs committed fraud by making false representations of material
facts concerning the conveyed acreage and that Π, through Π agent, relied upon Δ agent’s false
assertions without knowledge of the true acreage being conveyed to Π. Δ appealed.
Hold: protection against fraud must reconcile the claims of convenience with the duties of good faith ~
buyers must pay attention to their surroundings, but sellers must communicate defects that buyers
wouldn’t see—fraud can apply to anything concealed not readily ascertainable—the exact acreage of
the land was not readily ascertainable to Π!
a) Π’s misconduct negating justifiable reliance: the test ~ whether one exercising ordinary and usual
business attention, care, and circumspection would have relied—if a defect is open and obvious,
that ordinary care will spot it and reliance would not be justified!

 Reasonableness standard?—not really, more of a gross negligence standard ~ not bound to

inquire unless something happens to excite suspicion [to put buyer on inquiry]

b) Disclaimer of Reliance Clause: in K to negate actual reliance on ay representation made beyond

the four corners of K

- Some courts will honor this! ~ enforce as a waiver of reliance; usually is parties have equal
bargaining strength and are represented by counsel
- Some courts hold as mere merger clause ~ no representations/promises outside K have been
made; will not preclude a claim for fraudulent inducement!

2. Negligent Misrepresentation
e) Staggs v. Sells (2001): [house turns into island] whether Π
Rule:
Facts: Π entered K to purchase a home owned by Δs. Δs personally never lived in the house,
but their daughter did for 8 years. Δs lived close by and visited regularly.
1. Δs’ agent negotiated and executed the K for sale on Δs’ behalf. K stated that the house
had not been damaged/affected by flood or storm runoff. BUT the agent never read the
terms of K to Δs and didn’t actually determine if the house had been affected by flooding
on the property.
2. Π also never asked Δs or the agent if the house had been affected by flooding.

Page 63
 3. For several years after Π moved in, the property flooded approx. 15 times, with water
completely surrounding but never entering the house.
PH ~ Π sued Δs for negligent misrepresentation. TC: held for Π, ruling that Δs acted
recklessly through their agent, who failed to use reasonable care by representing that the
property had no flood risk and awarded $25k in damages, but reduced the award to a
$15k judgment against Δ, based on the fault apportioned b/t the parties = 60% to Δ and
40% to Π. Δs appealed.
Reasoning:
a) Elements:
b) Silence as Negligent Misrep—
c) Justifiable Reliance and Comparative Fault:
3. Intentional Interference w/ Contract [832]

Page 64