Torts

Intentional Torts…………………………………………………………………………2
I. Intent…………………………………………………………………………………..2
A. Battery……………………………………………………………………………..4
B. Assault……………………………………………………………………………..5
C. False Imprisonment………………………………………………………………...5
D. Infliction of Emotional Distress……………………………………………………6
E. Trespass to Land…….……………………………………………………………...7
F. Modern Theory of Trespass………………………………………………………...8
G. Nuisance……………………………………………………………………………8
H. Trespass to Chattels…………………………………………………………...……8
I. Conversion…………………………………………………………………………..8

Negligence……………………………………………………………………………….9
I. Elements of Negligence……………………………………………………………….9
A. Duty………………………………………………………………………………..9
B. Breach……………….…………………………………………………………….12
C. Cause In Fact………………..…………………………………………………….14
D. Proximate Cause………………………………………………………………….16
E. Damages…………………..………………………………………………………22

Strict Liability…………………………………………………………………………..18

Defenses…………………………………………………………………………………19

Duties of Owners and Occupiers of Land……………………………………………….21

Statutory Limitations on Liability……………………………………………………….22

Damages…………………………………………………………………………………22

Wrongful Death & Survivor Statutes……………………………………………………22

1
Intentional Torts

I. Intent in general – intent is a required element for all intentional torts

A. Elements of Intent
1. Acted with the purpose to cause harmful or offensive act OR
2. Had knowledge with substantial certainty that the harmful or offensive act
would result (Explanation: Someone who acts with substantial certainty that harm will
follow is treated as if they intended the harmful consequences to occur.)

B. Defining Elements of Intent

1. Harmful/offensive act
a. Use reasonable person standard – an individual’s personal idiosyncrasies are
not considered in determining what constitutes a harmful/offensive act
b. EXCEPTION: Special vulnerabilities (Ex. The girl who was looking for the pot
of gold.)
2. Knowledge with substantial certainty
a. Subjective - An issue of fact to be determined by the jury
b. Lying – If you suspect that someone is lying, then should consider what a
reasonable person in their position would have known.

C. General Characteristics of Intentional Torts

1. Thin Skull Rule - No limit to amount for liability (no proximate cause – no
relevance of foreseeability)
2. Respondeat Superior
a. Businesses not liable for employee’s intentional torts (because the intentional
behavior generally by definition falls outside of the scope of employment)
b. EXCEPTION: When the activity is within the job description of the employee,
business is liable for intentional torts (Ex. Bouncers and security guards)

D. Theories for Determining the Intent of Children

1. Determine whether that child had the capacity to act intentionally; consider the
child’s age, experience and intelligence (Ex. The boy who pulls out the chair and the
court must determine whether he knew the woman would try to sit where the chair had
been. Since he did not know she would try to sit there, there was no wrongful act.
Garratt v. Dailey) OR
2. Standard based on age group
a. Age 0-7: incapable of intent
b. Age 7-14: presumed not capable of intent but may be able to prove intent: must
consider what that particular child knew
c. Older than 14: capable of intent

E. Damages
1. Nominal damages – awarded in event that there are no damages; determined by
the jury

2
 2. Punitive damages – intended to punish and discourage such behavior; must show
the damage was willful
3. Thin Skull Rule – liable for all resulting injury, even if injury is not foreseeable

F. Defenses
1. Consent
2. Privilege

G. Transferred Intent – expands the scope of liability; must prove that the actor
intended to cause harmful or offensive contact to someone (doesn’t matter that the person
to whom harm was intended was not the recipient of the injury)
a. Battery
b. Assault
c. False Imprisonment
d. Trespass to Land
e. Trespass to Chattels

3
Types of International Torts

II. Battery – an intentional unpermitted harmful or offensive contact

A. Elements of Battery
1. Intent to cause harmful/offensive contact to
a. Body OR
b. An object closely associated with one’s body
2. Harmful contact occurs

B. Defenses
a. Consent
i. Actual consent
ii. Medical Context
A. Informed consent – the plaintiff must prove actual damages
1. There was a material risk unknown to the patient
2. There was a failure to disclose that information
3. Knowledge of the risk would have led a reasonable patient to refuse the
procedure
4. Injury flows from failure to give consent
iii. Sports Context
A. Was within the normal rules of the game –
B. No intent
C. Respondeat Superior – for Professional sports, argue that the behavior was
ratified
iv. Illegal Activities – a person cannot consent to an illegal activity

b. Crowded world – some contact is inevitable in a crowded world and will excuse
a battery

c. Emergency – immediate threat to life or limb

d. FALSE DEFENSE – plaintiff benefitted; it doesn’t matter if the plaintiff

benefitted; nominal damages are always available for intentional torts

e. FALSE DEFENSE – Mistake is not a defense for any intentional tort.

4
III. Assault – acting with the intention to cause apprehension or harmful or offensive
contact
A. Elements
1. Intent to cause harmful contact or apprehension
2. There is actual apprehension of harmful contact that is imminent
a. Present ability
b. Gesture
c. Communicated threat
B. General Characteristics
1. No contact is necessary.
2. There must be some gesture – words are not enough.
3. Must have apparent ability and opportunity to carry it out.

IV. False Imprisonment

A. Elements
1. Intent to confine
2. Physical confinement through
a. Force OR
b. Threat of force
3. Victim is conscious and aware of confinement or harmed by it (doesn’t have to
know who is confining them)
B. Defenses
1. Reasonable escape was available; an escape that would harm the plaintiff or the
plaintiff’s property is not reasonable
2. Confined by moral influence, not force/threat of force
3. Parent-child relationship – parents can be excused from behavior that otherwise
constituted false imprisonment because the courts don’t want to interfere with families
4. Merchant detained for reasonable shoplifting investigation
a. Must have reasonable suspicion of shoplifting
b. Investigation/detention must be reasonable
5. Limited Consent – consent was limited by time or location

5
V. Infliction of Emotional Distress
A. Elements
1. Conduct that causes distress must be intentional (it is not intentional if the person
does not know you are there)
2. Causal connection between conduct and emotional distress
3. Conduct must be extreme and outrageous – must go beyond all bounds of decency
(objective standard)
a. In context
b. Known sensitivities can be taken into account
4. Emotional distress must be severe
B. Defenses
1. Public Official – the First Amendment does not protect public officials as strongly
because there is value in upholding debate

6
VI. Trespass to Land – an intentional unpermitted entry onto the land of another;
trespass protects the owner’s exclusive right to property

A. Traditional Trespass to Land – the unauthorized and intentional entry onto the land
of another
1. Elements
a. Intent to enter the property of another
b. Unauthorized Entry to property of another
c. Interferes with the owner’s exclusive possession
2. Privileges
a. Can only use reasonable force against a trespasser and force must be
proportional; self-defense is only justified if there is a threat to personal safety
i. Must first ask intruder to leave
ii. EXCEPTION: a person who enters your house in the middle of the night is
assumed to be a threat to your safety
iii. Policy: Society puts a greater value on human safety than on property
rights. Can only assert privilege if there is a threat that justifies self-defense.
b. Necessity
i. Private – duty to allow trespass;
A. Owner is liable for damages if property owner interferes with trespass;
B. Trespasser is liable for actual damages caused by the trespass
ii. Public –
A. Majority rule: no recovery allowed (This is different from takings – where
compensation is required – because there isn’t enough time to fully weigh all the
alternatives)
B. Minority rule: allow for compensation to prevent the public burden from
falling on individuals

B. Defense
1. Defense
a. Emergency
2. Privileges
a. Reasonable force against trespassers
b. Private Necessity – for protection of property and life
i. No nominal damages awarded
ii. Recover only for actual damages
c. Public necessity – for protection of property and life
i. Must be reasonably apparent
ii. No recovery
iii. “Taking” – planned damage
A. Recovery is constitutionally mandated to prevent the public burden falling
on individuals

7
VII. Modern Trespass to Land
1. Elements
a. Invasion of substance affecting the interest in property
b. Intent
c. The act’s damage is foreseeable
d. Substantial damage to res

VIII. Nuisance – protects the right to use and enjoy property by balancing the interests of
both parties
A. Does not have to be intentional
B. The judge has a lot of leeway and must consider all of the relevant interests and
factors
C. No damage to res necessary

IX. Trespass to Chattels – the intentional interference with the owner’s possession of
chattels
1. Elements
a. Intent to interfere with the use and enjoyment of chattel
b. Actual interference with the use and enjoyment of chattel
c. Actual damages to chattel (no nominal damages are awarded)

X. Conversion – an unauthorized act that deprives an owner of his property permanently

or renders it useless
1. Elements
a. Intent to exercise control over chattel
b. Exercise of control over chattel
c. No other just remedy but the full value of the chattel
2. Factors to consider?
a. Extent and duration of actor’s exercise of dominion or control
b. Actor’s intent to assert a right in fact inconsistent w/the other’s right of control
c. Actor’s good faith
d. Extent and duration of the resulting interference
e. Harm done to chattel
f. Inconvenience and expense caused to other

8
Negligence – an unintentional act

I. Duty
A. Factors that Determine if there is a Duty
1. Foreseeability of harm
2. Degree of certainty that plaintiff suffered harm
3. The closeness of the connection between the conduct and injury
4. The moral blame attached to defendant’s conduct
5. Policy of preventing future harm
6. Extent of the burden to defendant and the consequences to community of
imposing liability
7. The availability, prevalence and cost of insurance for the risk involved.
B. Obligation to assist others
1. Emergency
a. No duty to rescue (no duty to take an affirmative action on behalf of another)
b. Once attempted rescue is begun:
i. Duty to exercise reasonable care during rescue
ii. Duty to continue to rescue (may have prevented someone else from
rendering aid)
c. Duty not to interfere with another’s attempt to rescue/render aid
d. Good Samaritan professionals – no damages are awarded for good samaritan’s
negligence because we want to encourage professionals to render aid
e. There is a duty for a doctor to warn when a new defect comes to light regarding
a medical treatment that has already been done. (Ex. Dalkon Shield)
2. Minority View: If you anticipate your actions will cause harm to another, you
have a duty of reasonable care. Duty to the world doctrine. (Heaven v. Pender)
C. Public spaces
a. Public invitation – incurs a duty on the invitee when there is a public invitation
and economic benefit
D. Privity – only those who are parties to the contract can recover (concerned about
indefinite liability)
i. Only parties to a contract can recover because nonfeasance to perform a
contract does not lead to a tort action.
ii. In these cases, they look to see who will have insurance (the house that burns
down will likely have insurance, but the person who becomes sick with typhoid in the
water does not necessarily have insurance so recovery may be possible.
iii. The more people are injured, the less likely there will be recovery
iv. Companies providing a public good will likely get more protection from
courts.
E. Duty to control others
1. Doctors/psychiatrists
a. Duty of confidentiality to patient
b. UNLESS the doctor has reasonable cause to believe a third party is at risk; then
there is a duty to the third person (weigh the societal value of protecting from physical

9
harm to the societal value of client-patient confidentiality to help mentally ill get the help
they need.)
2. Negligent entrustment
a. Duty not to entrust a person with a chattel if they know or have reason to think
they will use it dangerously. (The radical case where the great aunt helped her son get a
car even though he didn’t have his license and had a drinking problem. Vince v. Wilson)
F. Emotional Harm
1. Bases for recovery
a. Impact rule – requires contact between the plaintiff and defendant (battery)
b. Zone of danger rule – must be in physical danger to recover; no close
relationship or injury is required
c. Parasitic rule – emotional distress must be caused by the breach of another duty
(another tort)
d. Physical injury rule – a physical injury must accompany emotional distress
(Miscarriage, heart attack)
e. Quill – extraordinary circumstances and physical manifestation of emotional
distress symptoms
f. Thing
i. Must be closely related
ii. Must be present at the scene of the injury
iii. Must be aware of the injury when it is inflicted
iv. Must suffer emotional distress
G. Injury to unborn children - Child has a right to be born free from prenatal injuries
caused by breach of a duty to the mother. (Even if not foreseeable that the person would
be brought into existence)
1. Bases for recovery – General duty to prevent harm to unborn children if:
a. Child must be born alive
b. Child must be viable at the time of injury
c. Must be viable at the time of injury and be born alive
d. Even stillborn may recover
2. Parental Recovery
a. If the child wouldn’t have existed but for the negligence:
i. Damages – cost of raising the child, the wife’s earning capacity, emotional
distress associated with the birth, the wife’s pain and suffering
b. If the child exists with injury
H. Special Relationships
1. Carriers to passengers
2. Employers to employees
3. Innkeepers to guests
4. Jailers to prisoners
5. Spouses
6. Parents to Children
7. Controller of instrumentality to user
8. Participants in an automobile accident
9. Invitation Rule – Public invitation or invitation for profit results in a duty to
people who enter premises

10
II. Breach (Negligence) – use the reasonable person standard for determining if care
exercised was a breach of duty
A. Standard of Care; negligence = burden < probability of injury x injury
1. Must prepare for the average circumstances
2. Must make use of safer available alternatives that are reasonable
3. Emergency doctrine – when an actor is faced with sudden/unexpected
circumstances, the actor may not be held negligent; must take measures that are
reasonable in light of the fact there was an emergency; however, the emergency doctrine
does not save a defendant who contributed to or created the emergency; sudden, no time
for deliberation; however the reasonable person standard still applies just in light of the
fact that it’s an emergency (an additional element to be considered)
4. Types of Negligence – courts no longer distinguish between types of negligence
a. Slightest negligence – airlines
b. Ordinary negligence
c. Gross Negligence
5. Reasonable person standard – an objective standard; not about what YOU or the
jury think; about what a reasonable person in your situation would have done
a. Objective Standard: Training and personal background is not relevant
b. Disabled Person: Can apply a reasonable disabled person standard; can take
into account the circumstances
c. Professionals - No higher standard of care UNLESS the work is the kind that
an ordinary person would not understand
d. Reasonable Doctor standard – held to the same degree of skill and learning
possessed by the average member of the medical community in the community where the
doctor practices
i. Dueling Medical Theories: If there are two or more accepted methods, either
one will constitute reasonable care
ii. Generally need expert testimony UNLESS negligence so glaring that a lay
person would understand the negligence
a. Certain criteria needed for experts
1. Medical
A. Be licensed in the school of medicine about which they will testify
B. Show familiarity with the methods and treatments used in the
defendant’s community.
b. Once the criteria is met, the judge can decide to throw out the experts
(Daubert principle – sometimes the only experts on a new drug or product are the ones
who created it and are influenced by their interest in the outcome of the case
iii. Informed consent – must inform of all material risks
a. Doctor’s economic interests
b. Doctor’s research interests
c. Anything that a reasonable person would deem significant/would prompt
them to refuse treatment
e. Reasonable Child Standard – when a child takes on a dangerous activity that
requires the knowledge or expertise of an adult, they are held to an adult standard
7. Determining the standard
i. Judge-made standard

11
 ii. Statute – criminal statutes can be the basis of standard care for civil actions;
negligence per se
a. Each statute is intended to protect a certain class from harm. If the plaintiff is
within that class, then the statute can be used as evidence of breach of the standard of
care.
1. Class – was the plaintiff within the class that the statute intended to protect?
2. Hazard – was this the injury the statute sought to protect from?
b. Rebuttable presumption
c. Evidence of negligence
iii. Custom
iv. Reasonable person – determined by the jury
A. Evidence of Negligence – Types (trying to prove a prima facie case = enough
evidence to get the case before the jury)
I. Direct evidence – eyewitness statement about a fact in issue that witness saw
II. Real Evidence – the gun that was used; both tangible and physical
III. Circumstantial evidence – can infer from another unrelated issue
a. Start w/actual notice – if actual notice, then the case goes to the jury
b. Constructive Notice – defect must be visible and apparent for sufficient
time for D to discover and remedy
B. Prima Facie Case; Proved by: (Prima Facie gets to the jury)
I. Existence of a dangerous condition
II. Notice of that condition
C. When There is No Evidence of Negligence
a. Mode of Operation Rule – if a person operates a business where a certain
hazard is common, you don’t have to prove that they were given notice of that particular
instance they should have anticipated that it would happen on a regular basis.
b. Res Ipsa Loquitor – “the thing speaks for itself;” goes to the jury; when
there is no direct evidence of negligence but the act was such that it would not occur
without negligence; call all possibly negligent parties to court and send to the jury to
determine which was negligent; shifts the burden of proof onto the defendants
i. Elements
A. Must have been in exclusive control of the object
B. Must be the kind of injury that does not happen without some
instance of negligence
C. The plaintiff must not be contributorily negligent
ii. Procedural Techniques
A. Inference of negligence (Vandall’s preference; is there is an
inference of negligence it should go to the jury)
B. Presumption of negligence
C. Shift in the burden of proof to the defendant
D. Medical Exceptions:
I. Calculated Risks – often do not make it to the jury; if it is a last attempt to
save a person and there are bad results; informed consent
II. Bad Result – there is a small risk of something happening and there was
informed consent

12
III. Cause-In –Fact – a matter of science; there are many causes in fact, the court is just
selecting one – “a cause-in-fact” (the example of the man who drowns; was it the lack of
life preservers, his inability to swim, the bump of the boat?); must be a probability, not a
mere possibility

A. Determining a Cause In Fact – Use Both Tests

1. “But For” Test – in the injury would not have occurred but for the defendant’s
contact; applies when there is only one defendant
2. Substantial Factor Test – whether the defendant’s conduct was a substantial factor
in the injury

B. Concurrent Causes
1. Joint and Several Liability – to prevent a plaintiff from being unable to recover as
a result or having multiple defendants who caused a single, divisible result
a. Jointly liable – plaintiff selects which of the two defendants to recover from
b. Severally liable – liable for the proportion of injury that is their fault

C. Failure to Identify the Specific Actor

1. Joint Tortfeasors – Single Divisible Injury & Unknown Specific Cause In Fact:
When both parties act negligently, but the specific Cause-In-Fact is unknown: shift
burden of proof to the defendant; may impose Joint and Several Liability; Both were
negligent so we don’t care who recovers as much. (The two hunters who try to shoot a
quail that is near the plaintiff and the plaintiff is shot. Pull both defendants into court
and make them prove they weren’t the one to strike the plaintiff. Summers v. Tice)
a. Joint Liability – can receive all damages from either D
b. Several Liability – can divide the damages between Ds with proportion to their
fault
c. Alternative Liability – burden of proof shifts to Ds to prove the other caused the
injury; without sufficient proof, they are both held liable
2. Market Share Liability (policy) - If all parties were negligent, profiting from the
product, and there is no way to prove which manufactured the good, join enough
defendants so that at least 50% of the national market providers are in court and then
recover for the proportion of the national market they each provided. So if one company
provided 1/3 of the market share, then they must pay for 1/3 of the plaintiff’s injury.

D. Difficulties in Proof of Causation

1. Loss of a chance of survival – when a failure to perform a procedure eliminates a
chance of survival
a. If chance of recovery is greater than 50%, full recovery. If less than 50%, no
recovery.
b. Proportional Recovery - Need expert testimony to determine the percentage
chance of survival – recover that percentage of damages.
c. Substantial factor – plaintiff must prove that the defendant’s conduct was a
substantial factor in producing the physical harm.
2. Judge can throw out expert testimony – it is up to the judge to determine if there
is enough evidence to go to the jury and whether the testimony is valid

13
 a. Often, the only research that is immediately available is from the industry
which may not be neutral. So, judges do not require testifying doctors to have published
research on the subject.

14
IV. Proximate Cause – a matter of policy; did the defendant’s liability extend to this
particular plaintiff for this particular injury?; the rules developed as a way to control the
jury (Direct Cause – uninterrupted chain of events; Indirect Cause – interrupted chain
of events, intervening parties, causes or acts of God) The defendant must take the
plaintiff as he finds him

A. Theories of Proximate Cause

1. Directness – The injury/damage must be the direct result of the negligent act.
(Likely the most inclusive rule because all things in the chain of falling dominoes is the
direct result of the negligence) (Polemis) Directness and foreseeable small risk are really
the same thing.
2. Foreseeable Small Risk Rule – If some damage is foreseeable then one is liable
for all resulting damage. The type of damage that actually occurs is not important, just
that some damage was going to occur. Letting directness in through the back door. (The
board fell, creating a spark that caused the ship to burn. Some damage was foreseeable
from a board falling. It doesn’t matter that the spark wasn’t foreseeable, because there
was some damage that could have been foreseen from a board falling. Polemis)
3. Remoteness/First Building Rule – Liability is severed after the first house burns.
That the second house would burn was not foreseeable and therefore there is no liability
for the second house. Idea that people should insure their houses because they are best
suited to evaluate the worth of their home. The damage shouldn’t be too remote. (Ryan)
4. Foreseeability – Would a reasonable person have foreseen the injury? liability
extends only to particular injuries that are reasonably foreseeable; can only prevent
injuries which you can foresee. (That oil would burn on water after it is spilled was not
foreseeable. No liability even though it was foreseeable that an oil spill would cause
other kinds of damage. The Wagon Mound I)
5. Foreseeable plaintiff – unless the plaintiff is foreseeable, there is no duty; zone
of danger rule (must define duty in terms of the particular plaintiff; OR there is a duty to
the world not to take unreasonable risks that put people in danger)
6. Greene’s Theory of Pure Politics – Does the defendant’s duty extend to this
particular plaintiff for this particular injury? courts are just making a policy decision,
and they should be explicit about what they are doing; factors should be weighed to
determine if there is a legitimate policy interest that should be protected; there is a much
more limited role for foreseeability: it should only be used when the jury tries to
determine if the defendant acted reasonably
a. Determine if there is a duty to that particular defendant for that particular
injury?
i. Ability of defendant to carry the loss
ii. Precedent
iii. Prevention
iv. Economic impact of the decision
v. Justice
vi. Problems with judicial administration
b. Questions to ask under Greene’s Theory:
i. Is there evidence of cause-in-fact?
ii. Is there evidence of negligence?

15
 iii. Does D’s duty extend to this particular plaintiff for this particular injury?

B. General Rules
1. Personal Injury - take the plaintiff as you find him. The defendant is liable for all
resulting damage. (Bartolone)
2. Property Damage – different rule; not as inclusive

C. Intervening Causes – intervening causes generally do not sever liability; liability

is extended if there is foreseeable damage, even if the intervening cause is
unforeseeable
1. EXCEPTION: Duty not to incite others (duty to the world) – if the consequences
are foreseeable, then liability not severed when you incite someone else to do
something; a person is liable for the foreseeable actions others will take as a result of
your action
2. EXCEPTION: Criminal activity is generally not foreseeable so it severs
liability, even if the risk exists before the criminal behavior.
a. Criminal activity that is foreseeable does not sever liability.
3. The First Amendment does not protect language that incites criminal activity.
Liability is not severed.
4. Alcohol – Exception to the criminal rule – because of our policy preferences, we
hold people liable for the actions of others to whom they serve alcohol; the key is that
the person controls the flow of alcohol
5. Rescue – there is no duty to rescue; however, the choice to rescue does not sever
liability as long as the decision to rescue results from an “impulse”; if the decision to
rescue is foolish/unreasonable, liability is severed
a. EXCEPTION: Professional rescuers cannot recover.
6. A second act of negligence by another person does not sever liability UNLESS
the kind of negligence is wholly unexpected (the doctor that operates on the wrong leg).
7. Suicide Theories of Liability
a. Cuts off Liability
b. If suicide was an irresistible impulse then it doesn’t sever liability (The cause
in fact of the suicide was the car crash. The proximate cause was also the car crash. It
doesn’t matter that the suicide victim was an intervening cause because he succumbed to
an irresistible impulse that was caused by the crash. Fuller v. Preis)
8. Residual injury over generations – companies are generally only liable to the
foreseeable plaintiff; there must be a balancing of interests – interest in having drug
companies continue to provide drugs, but also want to provide incentives for them to
minimize risks; so injuries caused by drugs are limited to the people who are directly
exposed to the drug, not later generations; want to promote the availability of prescription
drugs – concerned about over-deterrence

D. Economic Loss –to be the proximate cause of economic loss, must:

1. Economic loss must be foreseeable
2. Identifiable plaintiff or class of plaintiffs – concerned about indefinite liability
a. Physical injury must accompany (Majority Rule - Robins)
b. No physical injury necessary (Minority Rule - People’s Express)

16
V. Strict Liability – naked social policy (fencing in cows example); defendant is liable
without a showing of fault; people who engage in certain kinds of activities do so at their
own peril and are held liable even if they exercise the highest level of care; benefits to
society do not limit liability
A. Liable for all resulting damage when:
1. Defendant engages in abnormally dangerous behavior or brings a danger onto
his land which he knows will bring damage if it gets onto the plaintiff’s property
2. The danger escapes
3. Plaintiff suffers damage
4. The instrumentality is non-natural
a. To determine if naturally occurring:
i. Character of activity
ii. Place and manner in which it is conducted
iii. Relationship of the act to its surroundings – does it provide an economic
benefit
B. Defenses to Strict Liability
1. Contributory Negligence – this goes away
2. Assumption of Risk (in negligence, contributory negligence and assumption of
risk are really the same, but not so in strict liability)
3. Acts of God
4. Animals
a. Wild animals – strict liability applies
b. Domesticated animals – strict liability if the owner knows that the animal is
dangerous

C. Factors for Determining if Strict Liability Applies

1. High degree of risk to others
2. Likelihood harm will be great
3. Inability to eliminate risk by exercise of reasonable care
4. Extent to which act is NOT a matter of common usage
5. Inappropriateness of the activity to place where it is carried on
6. Extent to which its value to the community is outweighed by its dangerous
attributes

17
VI. Defenses
A. Contributory Negligence – was the original default; would sever all liability; courts
moved away from this

B. Contributory Fault/Comparative Negligence/Comparative Fault – the jury

determines the percentage to which the plaintiff and defendant were at fault
1. Pure – P’s damage award reduced by P’s % of fault, regardless of how high; can
recover any percentage amount which the defendant is responsible, even if the amount is
less than 50%
2. Modified – can only recover if the defendant is more than 50% responsible for
the injury; important to evaluate the way that the statute is worded – if it says the
defendant’s fault must be greater than the plaintiff’s then it might only have to be greater
than whatever the plaintiff’s fault was; Problem: leads to many appeals – how to
determine the exact amount that someone is at fault

C. Last Clear Chance Rule – (A Defense to Contributory Negligence – an early

introduction of comparative fault) argue that either the plaintiff or the defendant had the
last clear shot to avoid the injury; if the defendant had the last clear shot, he is liable; if
the plaintiff did, the suit is dropped; was largely replaced by comparative fault

D. Assumption of Risk – a complete defense; the plaintiff has taken on such

substantial risk that the defendant is not liable; doesn’t have to go to the jury, can be
directed by the judge; a person never assumes risk of another person’s negligence
because they shouldn’t have to anticipate another’s negligent behavior; should generally
assume that people only assume risk of average circumstances (like that a mule would be
generally well-behaved)
1. Elements
a. Knowledge of the risk
b. Appreciation for the character of the risk
c. Voluntarily assumes the risk
2. Types of Assumption of Risk
a. Express – an assumption of risk that is written down or obviously accepted;
exculpatory contracts
b. Implied
i. Primary – what had been no duty or no negligence cases become primary
implied assumption of risk; a total bar to recovery (ex. Bald tires, shaking of train w/hot
coffee)
ii. Secondary – was the plaintiff negligent?
A. Reasonable Pure – the plaintiff was contributorily negligent but it was
reasonable under the circumstances (man goes into a burning building to save his child);
plaintiff recovers
B. Unreasonable – the plaintiff was contributorily negligent and it was not
reasonable under the circumstances (man goes into a burning building to save his favorite
hat); complete defense

18
 E. Seat Belt Defense
1. Negligence Per Se – Plaintiff thrown out of court; an act is considered negligent
if it violates a statute
2. Contributory Negligence – Plaintiff is thrown out of court
3. New York Rule – Plaintiff does not recover for injuries caused by the fact that he
wasn’t wearing a seatbelt
4. Michigan Rule – the fact that the plaintiff was not wearing a seatbelt is evidence
of negligence on his part; the recovery is reduced by as much as 5%
5. Florida Rule – deals with calculating the damages; the damages should only be
reduced once: add the percentages for the lack of seatbelt and the plaintiff’s fault and
then deduct from the damages
6. Illinois Rule – failure to wear a seatbelt does not reduce damages

F. Written Waiver – must weigh and balance the factors to determine if the waiver
should sever liability
1. Was there a duty to the public?
2. The nature of the conduct – does it have a value to society?
3. Was the contract fairly entered into?
4. Was the language unambiguous?

G. Defenses for Sports (in unintentional situations)

1. No duty
2. No negligence
3. Assumption of Risk or contributory negligence

Statutes of Limitations and Statutes of Repose

A. Statutes of Limitations – designed to protect the defendant from stale claims where
evidence has been destroyed or witnesses have disappeared
1. Traditional Rule – SOL begins to run as soon as the negligent act is committed
2. Discovery Doctrine – the statute of limitations begins on the date the injury and
the cause of the injury is discovered (response to issues like the undiscovered sponge left
in a body after operation)

B. Statutes of Repose – sets a time limit during which the harm must be discovered and
discovery kicks off the statute of limitations

C. EXCEPTION to Statute of Limitations and Statute of Repose: Fraud

19
Owners and Occupiers of Land
1) Classifications – must first classify the person
A. Trespasser – someone who is not permitted to be on the land; no duty to a
trespasser UNLESS the owner discovers the trespasser
B. Licensee – someone who is on land with the permission of the owner for the
licensee’s own purpose and benefit; also includes social guests; no duty of reasonable
care to a licensee; if the owner knows the licensee is on the premises then there is a duty
of reasonable care
C. Invitee – owner has invited the person onto the land; duty of reasonable care but no
duty regarding obvious dangers unless those dangers are easily preventable and the
invitee cannot avoid them (ice example)
1. Public – library/church extends an invitation to the public by opening its doors
2. Business Visitor – someone who is invited with a connection to economic gain;
highest duty of care; a duty to inspect; duty to take affirmative actions to make property
safe; there is no liability for obvious dangers UNLESS the owner still have reason to
think the licensee will be harmed
D. Trespassing Child – if the owner could anticipate the child’s entry and the harm
that would follow, then there is a duty

(Note: The classification of a person can change when they move about the property.)

2) Duty for certain activities

A. Construction – extends a duty of reasonable care

3) Alternatives: Rowland – abolished the classifications and adopted general

standard of reasonable care EXCEPT for trespassers; there might be a duty to
foreseeable trespassers or for foreseeable dangers to trespassers.

4) Special Exceptions
A. No duty of care for naturally occurring hazards: ponds, etc.
B. No duty of inspection for rural trees, but there is for urban trees
C. Water on property – if a natural condition, then no duty of care arises; if it’s
foreseeable that a child may enter the property, then there is a duty of reasonable
care
D. Landslide – shifting of soil in California had been going on; it was foreseeable it
would continue to happen, so owner of the active landslide has duty of care to the
neighbors when their property is damaged by the landslide.
E. Taco Bell – man is chased outside by thief and shot; suit is against Taco Bell;
criminal intervening cause? No. Since that Taco Bell has been robbed many times, it
is foreseeable that it will be robbed again. Duty of reasonable care = hiring a security
guard

20
Joint and Several Liability
A. Joint liability – can recover whole amount from any of the parties;
1. Act in concert (intentional) or
2. Have a single indivisible result (Death is most common result that leads to
joint liability; car accident and defective car lead to death (both driver and
manufacturer are joined) can recover whole amount from GM or the driver; plaintiff
gets to chose who to recover from)

B. Several liability – recover from the defendant in proportion to his fault;

C. Determining if it’s joint or several liability,

1. Look at injury and determine if it can be divided between the parties. If
something like death, it is a single indivisible result = joint liability; tort reform has
eliminated joint liability in some states. Can also look and see if it was committed in
concert

Damages
A. Compensatory Damages:
1. GOAL: to put the plaintiff in the situation he was in before the injury
2. Allow recovery for: lost wages, medical expenses (including services, drugs),
rehab, pain and suffering, damages to property, punitive damages

B. Punitive Damages
1. Ratio of compensatory damages to punitive damages – looking for single digit
ratio (1-9); pulled it out of the sky though…
2. Fines – trying to decide reasonableness; fines for this activity (lying to
customer) was between $500 and $10,000; shouldn’t have punitive damages that
are greater than fine; BUT the fines were written by corporations
3. Degree of reprehensibility of the defendant’s conduct – no false
statements; no disregard for safety or health
Result: Punitive are rare and small; average $36,000; caps on rewards after state
reforms – may by capped at $250,000

Wrongful Death & Survivor Statutes

A. Wrongful Death – Allows plaintiff to recover the lost wages of the decedent;
Problem: don’t address recovery for the person’s pain and suffering

B. Survival Statutes – allows plaintiff to recover up to the point of his death; can
recover for pain and suffering between the time of the accident and his death
1. Need testimony that the person survived the initial injury

21