I. What is Tort Law?

 Balance security interest of P with liberty interest of D

 Common law of civil wrongs not arising out of contract
 Emphasis on deterrence, fairness, compensation, and morality (does not aim to
punish)
 Elements - Fault/No Fault, causation, injury [damages]
 Standard of Proof – Preponderance of the Evidence
 3 Types of Torts – Intentional, Negligence & Strict Liability
 Generally, pure economic injury not recoverable by itself in torts
 Restatements are not binding authority, unless it is used in case law or is codified
 Theories of Tort Law - Utilitarianism in action-deterrence; Corrective justice or
civil recourse; Maintaining basic norms of a community; Shoring up dignity of
those injured
II. Liability for Intentionally Inflicted Harms
a. Intentional Torts
 Battery (intent to unconsented contact), Trespass (intent to enter) and
False Imprisonment (intent to confine) – only intent to act; IIED &
Assault – intent to harm
 Battery
 RST (2d.) § 13 Battery: An actor is subject to liability to another
for battery if (a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and (b) a harmful
contact with the person of the other directly or indirectly
results.
 Intent
I. RST (3d.) (Liability for Physical and Emotional Harm) § 1
Intent - A person acts with the intent to produce a
consequence if: (a) the person acts with the purpose of
producing that consequence; or (b) the person acts knowing
that the consequence is substantially certain to result.
II. Proving Intent
i. P shows that it was D’s purpose to produce the
contact
ii. P shows that D knew with substantial certainty that
the contact would result from D’s actions
iii. P shows that it was D’s purpose to produce an
imminent apprehension of such a contact
iv. P shows that D knew with substantial certainty that
imminent apprehension of such a contact would
result from D’s actions
III. Act/Consequence
  In punching someone’s face: act is the moving of
the hand, consequence is the contact with person’s
face
 In shooting someone, act is pulling the trigger,
consequence is the contact of the bullet hitting
person (not the blood or injuries that follow)
IV. Intent is satisfied with purpose to cause contact (not
necessarily to injure)
 Single Intent required: Intent to make physical
contact or intent that the physical contact be
harmful or offensive
 Wagner v. State: D (mentally disabled person)
threw P to the ground. D did not have mental
capacity to appreciate the harmful nature of his
actions. D was still liable. It does not matter if D
appreciates that his contact is forbidden, so long as
D intended the contact (not spastic) and the contact
was, in fact, forbidden (unconsented), he is liable.
 Vosburg v. Putney: D kicked P in classroom. D
intended to cause contact with P’s leg when he
kicked him. Act was outside of norms because it
was in a classroom (may have been different if
playground). It did not matter if D intended to injure
P’s leg or knew it would happen. D is liable to P for
all injuries from his wrongful act, even if they could
not be foreseen by him (eggshell skull rule). If
intended act was unlawful, intention must also be
unlawful.
V. Intent is satisfied with knowledge of substantial certainty
that contact would result, even if he did not desire the
contact to result
 Garrat v. Dailey: D moved chair and P tried to sit
and fell. D did not intend for P to come into harmful
contact with the ground. Question is whether he
knew with substantial certainty that contact would
happen. If he did, he is liable.
VI. Transferred Intent
 Intent to commit one intentional tort around against
one victim transfers to other torts or victims, if the
actor starts committing one tort against one victim,
but commits a different tort, the same tort against a
different victim, or a different tort towards a
different victim.
  Ex. If A intended to punch B but instead punched C,
A is liable to C
 Contact
I. Unlawful Contact
 Contact that the recipient of the contact has not
consented either directly or by implication (does not
include contact that is within social norms unless he
expressed non-consent prior to)
 Contact does not have to be direct. It could be
through clothing or an object closely identified with
the body
 Fisher v. Carrousel: D found liable when
snatched P’s plate. No physical contact with
body.
 Garrat v. Dailey: D made P come in contact
with ground. Contact element was satisfied.
II. Harmful Contact
 Bodily harm is any physical impairment, physical
pain, or illness
 Physical impairment - if the structure or function of
any part of the other’s body is altered to any extent
even if the alteration causes no other harm
III. Offensive Contact
 RST (2d.) § 18 Battery: Offensive Contact - An
actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third
person, or an imminent apprehension of such a
contact, and (b) an offensive contact with the
person of the other directly or indirectly results.
 Rationale: Personal indignity is the essence of an
action for battery; saves from resorting to violence;
preserve public order
 Does not protect overly sensitive P;
 Fisher v. Carrousel: D snatched plate from P and
told him he would not be served because he was a
Negro. P did not suffer fear of physical contact but
was hurt by D’s conduct. D found liable.
 Alcorn v. Mitchell: D spit in P’s face. D found
liable.
 Assault
 RST (2d.) § 21 Assault: (1) An actor is subject to liability to
another for assault if (a) he acts intending to cause a harmful or
 offensive contact with the person of the other or a third person, or
an imminent apprehension of such a contact, and (b) the other is
thereby put in such imminent apprehension.
 Gesture and Imminence are critical elements. Assault requires
“apprehension of immediate physical contact” and “the
apparent ability to execute.”
 Intent
I. Def needs to intend to create fear of imminent
apprehension of contact (more robust than battery)
II. Dual Intent: To make contact or apprehension and for
contact or apprehension to be harmful offensive
III.Wrinkle: In an assault and battery, assault merges with
battery and battery intent standard is used
 Imminent Apprehension
I. RST (2d.) § 24 What Constitutes Apprehension: In order
that the other may be put in the apprehension necessary to
make the actor liable for an assault, the other must believe
that the act may result in imminent contact unless
prevented from so resulting by the other's self-defensive
action or by his flight or by the intervention of some
outside force.
II. If P perceives harm and it was a close call, it is still assault.
Unlawful touching of the mind.
 De S. Wife v. W. De S.: D aimed hatchet at P who
had her head out the window. D missed. D still
liable. Tort of assault does not require physical
contact.
III. Fear not a requisite
 Plaintiff does not need to be fearful, only needs to
believe contact will occur unless something
intervenes
IV. Without apprehension, there is no assault
 If D attempts to hit P but misses or is stopped and D
had no idea that it happened, no assault.
V. RST (2d.) § 27 Unreasonable Character of Apprehension: §
24: If an act intended to put another in apprehension of an
immediate bodily contact and succeeds in so doing, the
actor is subject to liability for an assault although his
act would not have put a person of ordinary courage in
such apprehension
VI. Ordinary insults and frictions are not actionable.
 Bollaert v. Witter; Groff v. SW Beverage Co.
  Words do not typically qualify as assault unless
there are extreme circumstances
 Ex. Mob boss notorious for violence threatens
someone
VII. Jokes can be actionable.
 If joke intends to scare, D may still be liable for
assault
 Threat of Imminent Contact
I. Threat of future harm not actionable.
 Kijonka v. Seitzinger: D threatened P “...I will get
you.” D not liable. A verbal threat of indefinite
action in the indefinite future not an assault.
II. Threat of conditional harm not actionable.
 Tuberville v. Savage: D threatened P, “If not...I
would...” Declaration of P was not that he would
assault. D not liable.
 Ability of Imminent Contact
I. No assault without apparent ability to make imminent
contact
 Speicher v. Rajtora: D threatened P while at
neighbor’s house one mile away. D not liable.
Assault requires “fear of immediate physical
contact” and “the apparent ability to execute”
the assault. Def did not have the apparent ability
to execute the threat at the time the threat was
made.
 Smith v. Newsam: D shook sword at P from other
side of the road. Threats of distant harm are not
actionable.
 False Imprisonment
 RST (2d) § 35 False Imprisonment: (1) An actor is subject to
liability to another for false imprisonment if (a) he acts intending
to confine the other or a third person within boundaries fixed by
the actor, and (b) his act directly or indirectly results in such a
confinement of the other, and (c) the other is conscious of the
confinement or is harmed by it.
 RST (2d) § 36 What Constitutes Confinement: (1) To make the
actor liable for false imprisonment, the other’s confinement within
the boundaries fixed by the actor must be complete (2) the
confinement is complete although there is a reasonable means of
escape, unless the other knows of it (3) the actor does not become
liable for false imprisonment by intentionally preventing another
 from going in a particular direction in which he has a right or
privilege to go.
o DUTY TO ACT
 If D has duty to act to free P and doesn’t act, D is
confining P and is liable for FI.
 Hypo: Customer accidentally locks himself in
bathroom in defendant store. Employees laugh
instead of releasing him
 =FI, employees had duty to act. Other
customers would not have duty so no FI.
o Whittaker v. Sandford: P was not physically locked in a
room but she was confined to a boat with no rowboat to
escape. The sea was the impassable barrier like walls to a
room and the denial of rowboat was turning the key to lock
her in
o Burglar telling you “face the wall and don’t turn around or
I’ll shoot” is confinement by iMMEDIATE PHYSICAL
FORCE
 What Constitutes Boundaries as Complete
o Confinement is complete if escaping requires risk to self,
property, or a 3rd party or if it would reasonably offend
someone’s personal dignity to leave
o Hypo: If locked in a room with an unlocked window,
confinement is incomplete because you have a reasonable
means of escape
o Hypo: If locked in a room with an unlocked window, that is
three stories high, confinement is complete because you
would risk self trying to escape
o Hypo: If locked in a room with an unlocked window that
has bunnies under it, confinement is complete because you
would risk 3rd party(?) trying to escape
o Hypo: If escaping means that you would have to run naked
in a busy street, confinement is complete because it would
offend your personal dignity to try to escape
o Note: There is no accommodation for overly sensitive
plaintiff, if there was an objectively reasonable means of
escape, P won’t win
 Justification
o Protects personal freedom of movement
o A right “to go freely through the world
 IIED
 RST (2d) § Outrageous Conduct Causing Severe Emotional
Distress - (1) One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress, and if
bodily harm to the other results from it, for such bodily harm (2)
where such conduct is directed at a third person, the actor is
subject to liability if he intentionally or recklessly causes severe
emotional distress (a) to a member of such person’s immediate
family who is present at the time, whether or not such distress
results in bodily harm or (b) to any other person who is present at
the time, if such distress results in bodily harm.
o P must prove outrageous behavior and that distress was
severe
 Sometimes court will look at the outrageous
behavior, itself, to determine that the distress would
be severe
o No bright-line rule; Look to cultural norms to establish
 Intent
o Intent to cause emotional distress is necessary, not just
intent to act in an outrageous manner
o A claim for IIED cannot be found if the risk that emotional
distress will result is merely incidental to the commission
of another tort
 Severe Emotional Distress
o Trivial emotional distress is not enough for liability, must
be so severe that no reasonable man could be expected
to endure it
o Objective test for severe distress with a subjective
component of whether D knew about P’s sensitivities
 Note: Major outrage is essential, just knowing that
the other will find conduct insulting is not enough
 No eggshell skull rule: overly sensitive P will not
win
o Courts are more likely to recognize IIED if there are
physical manifestations of emotional distress
o Proving severe distress can be difficult if P behaves in a
way that Ct does not agree with
 Ex. Jones v. Clinton: D made sexual advances
toward P at work. D not liable. Ct questioned why P
did not quit her job and never reported behavior to
supervisor.
 o Courts are more likely to recognize IIED if there are
physical manifestations of emotional distress
 Outrageous Conduct
o Conduct must be extreme and outrageous; it must go
beyond all possible bounds of decency and be intolerable in
a civilized community
 Ex. GTE v. Bruce: At work, D would do stuff like
charge at Ps, make them clean, and threaten them. D
liable
 Ex. Morgan v. Anthony: D followed P around and
would approach her and make sexual remarks every
time her car stalled. D liable.
o Note: Some states take stricter approach with employers;
some afford them greater protection
o Regarding racism:
 Courts have found racist remarks alone to not be
enough. Dawson v. Zayre Dept Stores; Bradshaw v.
Swagerty
 Racist remarks + committing discriminatory acts
usually is enough
 Lendsinger v. Burmeiter: D kicked black
customer out of store
 Lathrope-Olson v. Oregon Dept of
Transportation: P sexually harassed
employee
 RST (3d.) Liability for Physical and Emotional Harm §
Recklessness – A person acts recklessly in engaging in conduct if:
(a) the person knows of the risk of harm created by the conduct or
knows facts that make the risk obvious to another in the person’s
situation, and (b) the precaution that would eliminate or reduce the
risk involves burdens that are so slight relative to the magnitude of
the risk as to render the person’s failure to adopt the precaution a
demonstration of the person’s indifference to the risk.
o Ex. Golston v. Lincoln Cemetery: D (funeral director)
buried woman’s remains in a shallow grave instead of
contracted vault. Heavy equipment uncovered body. P
(woman’s family) could see body parts when visited. D was
liable.
 Trespass
 RST (2d.) § 158 Liability for Intentional Intrusions on Land –
One is subject to liability to another for trespass, irrespective of
whether he thereby causes harm to any legally protected
 interest of the other, if he intentionally (a) enters land in the
possession of the other, or causes a thing or a third person to do so
or (b) remains on the land, or (C) fails to remove from the land a
thing which he is under a duty to remove
o Customs do not matter.
 Door to door salesman are still trespassers
o Overstaying welcome is still trespass
o You can trespass with yourself or with other people/things,
i.e. your pet or ball
o You can trespass above or below land
 Intent
o Intent (purpose or substantially certain) to enter land; no
harmful or offensive intent required
o It does not matter whether D believed the land belonged to
someone else, if he thought it was his land and entered it,
he is still liable
o D is not liable if he did not intend to enter
 Ex. D tripped near boundary line and fell onto
neighbor property
 Damages
o Property does not need to be damaged for liability
 Dougherty v. Stepp: D entered land, made no
marking on trees and cut no bushes. D liable. “It is
the pretended ownership that aggravates the
wrong”
 Damages do affect the amount of recovery P
is awarded; only nominal damages if no real
damage
 Implied Liability
o D responsible for all damages stemming from
trespass(similar to eggshell skull rule). Brown v. Dellinger
b. Defenses to Intentional Torts
o Defenses are [Consent], Self-Defense, Defense of Property,
& Necessity
o Consent is part of prima facie case (P has burden to show
no consent)
o Self-Defense, Defense of Property & Necessity are
affirmative defenses (burden on D to prove)
 Consent
 RST (2d.) § 892A Effect of Consent – One who effectively
consents to conduct of another intended to invade his interests
 cannot recover in an action of tort of the conduct or for harm
resulting from it
o Note: P has to show no consent (part of prima facie case)
o Note: Consent has to match touch
 Consent to operation of left ear does not equate to
consent to operation of right ear. Mohr v. Williams
 RST (2d.) § 892 Meaning of Consent - (1) Consent is willingness
in fact for conduct to occur. It may be manifested by action or
inaction and need not be communicated to the actor. (2) If words
or conduct are reasonably understood by another to be
intended as consent, they constitute apparent consent and are as
effective as consent in fact.
 Validity of Consent
o Consent must be given by someone who has capacity to
consent or given by a person empowered to consent for
him
 Ex. MPOA empowers one to make medical
decisions for another
o Consent under duress is not valid
o Consent under false pretenses is not valid
 Actual Consent
o P focused.
o P actually consents and outwardly expresses this consent
o Hypo: A tells B he is happy to have all his neighbors use
his pool. A’s neighbor, C, enters A’s property and uses the
pool. A sues C in trespass. A may be found to have
consented, it does not matter if C knew about the consent.
 Apparent Consent
o D focused
o P’s words or actions cause a reasonable actor to believe
consent is given
 O'Brien v. Cunard Steamship: P stood in line and
presented her arm for vaccine. She said she did not
consent but Ct found for “apparent consent”
 EMERGENCY EXCEPTION
o RST (2d.) § 892D Emergency Action Without Consent-
Conduct that injures another does not make the actor liable
to the other, even though the other has not consented to it if
(a) an emergency makes it necessary or apparently
necessary, in order to prevent harm to the other, to act
before there is opportunity to obtain consent from the other
or one empowered to consent for him, and (b) the actor has
 no reason to believe that the other, if he had the opportunity
to consent, would decline

When to Consider Consent?

Clearly not “in the spirit of In between Clearly “in the spirit of
pleasantry” pleasantry”

e.g. punch in the face e.g. surgery e.g. handshake

Informal presumption will be Consent is a central issue – Informal presumption will be
that consent is a non-issue [bc informs our sense of whether that consent is a non-issue
P very unlikely to have the conduct is wrongful or [b/c strong case for implied
consented] not. Expect P & D to discuss. consent]

 Self-Defense (Absolute Privilege)

 RST (2d.) § 63 Self-Defense by Force Not Threatening Death
or Serious Bodily Harm - an actor is privileged to use reasonable
force, not intended or likely to cause death or serious bodily harm,
to defend himself against unprivileged harmful or offensive contact
or other bodily harm which he reasonably believes that another is
about to inflict intentionally upon him
o No retreat first rule
 RST (2d.) § Self-Defense by Force Threatening Death or
Serious Bodily Harm – An actor is privileged to defend himself
against another by force intended or likely to cause death or
serious bodily harm, when he reasonably believes that (a) the other
is about to inflict upon him an intentional contact or other bodily
harm and that (b) he is thereby put in peril of death or serious
bodily harm or ravishment, which can safely be prevented only by
the immediate use of such force
o Must retreat first unless it is unsafe to do so or if you are in
your dwelling
o Duty to retreat may sometimes require you to surrender
certain privileges to attacker or comply with certain
demands by an attacker, if doing so offers an alternative to
use of deadly force
 Key limit is that the force must be proportionate and
reasonable
o Reasonable force can be affected if D has specific
knowledge of P having health issues
 What are the various standards that make self-defense valid?
o Actual Fact: P was actually assault D
 o Reasonable Belief (Objective): A reasonable person would
believe P was assaulting D
o Honest Belief (Subjective): D believed P was assaulting
him
 Ex. Courvoisier v. Raymond: P self-defended against a police
officer that approached him because he thought he was part of the
rioters. Ct held self-defense valid even no actual assault. Ct used
Honest and Reasonable belief standard.
 RST (2d.) § Liability to Third Person – An act which is
privileged for the purpose of protecting the actor from a harmful or
offensive contact or other invasions of his interests of personality
subjects the actor to liability to a third person for any harm
unintentionally done to him only if the actor realizes or should
realize that his act creates an unreasonable risk of causing such
harm [i.e. only if negligence is established]
 RST (2d.) § 76: Defense of Third Person – The actor is
privileged to defend a third person from a harmful or offensive
contact or other invasion of his interests of personality under the
same conditions and by the same means as those under and by
which he is privileged to defend himself if the actor correctly or
reasonably believes that (a) the circumstances are such as to give
the third person a privilege of self-defense; and (b) his intervention
is necessary for the protection of third person
 Defense to Property
 RST (2d.) § 77: Self-Defense by Force Threatening Death or
Serious Bodily Harm – An actor is privileged to use reasonable
force [not lethal force], not intended or likely to cause death or
serious bodily harm, to prevent or terminate another’s intrusion
upon the actor’s land or chattels, if (a) the intrusion is not
privileged or the other intentionally or negligently causes the actor
to believe that it is not privileged, and (b) the actor reasonably
believes that the intrusion can be prevented or terminated only by
the force used, and (c) the actor has first requested the other to
desist and the other has disregarded the request, or the actor
reasonably believes that a request will be useless or that substantial
harm will be done before it can be made
o If D has trespassed before and has ignored P’s request to
leave, it is reasonable to assume request will be useless so
request will not be necessary
 RST (2d.)c 79: Defense of Possession by Force Threatening
Death or Serious Bodily Harm – The intentional infliction upon
another of a harmful or offensive contact or other bodily harm by a
means which is intended or likely to cause death or serious bodily
 harm, for the purpose of preventing or terminating the other’s
intrusion upon the actor’s possession of land or chattels, is
privileged if, but only if, the actor reasonably believes that the
intruder, unless expelled or excluded, is likely to cause death or
serious bodily harm to the actor or to a third person whom the
actor is privileged to protect
o Ex. Katko v. Briney: D could not claim self-defense when
he made a gun trap that shot P who was breaking in his
vacant farmhouse. D was not in danger of bodily harm.
o Law values human life over property
 You cannot indirectly do what you cannot directly
do
 Necessity
 Private Necessity (Qualified Privilege)
o RST (2d.) § 197 Private Necessity: (1) One is privileged
to enter or remain on land in the possession of another if it
is or reasonably appears to be necessary to prevent serious
harm to (a) the actor; or his land or chattels, or (b) the other
or a third person, or the land or chattels of either, unless the
actor knows or has reason to know that the one for whose
benefit he enters is unwilling that he shall take such action
o Liability on Trespassee/Trespasser
 Trespasser is subject to liability for whatever actual
damages (not nominal damages) that may occur in
the exercise of this privilege except where the threat
of harm was caused by the tortious conduct or
contributory negligence of property owner
 Ex. Vincent v. Lake Erie: D was liable to damages
to P’s dock even though he had the private necessity
to dock there because of the storm
 Trespassee is also subject to liability if he removes
trespasser who has legit privilege of necessity
 Ex. Ploof v. Putnam: P docked at D’s property
during storm. D unmoored boat. Boat got destroyed.
D liable for boat damages.
o Necessity is still valid even if D created the initial risk of
harm
o Balancing Test: Utilitarian Approach
 Balance risk/harm of both trespassee and trespasser
o Hypo: If trespasser was contagiously
terminally ill and docked boat on
trespassee land. Balance in favor of
trespassee
 o Trespassee has no duty to act; just a duty to not interfere
o Necessity last only as long as the emergency lasts
o Necessity does not allow you to harm someone who is not
actively stopping you from getting to safety
 i.e. You cannot run another boat over to get to the
dock for your own boat
o Necessity does allow you to make contact with someone
trying to throw you off land
 In Ploof v. Putnam, P had a right to try to stop D
from unmooring boat
 Public Necessity (Absolute Privilege)
o RST (2d.) § Public Necessity: One is privileged to enter
land in the possession of another if it is, or if the actor
reasonably believes it to be, necessary for the purpose of
averting an imminent public disaster
 D has no liability for damages
 Danger to large number of people, not just one or
two

III. Liability for Unintentionally Inflicted Harms: Strict Liability versus Negligence
a. 2 approaches
i. Strict Liability
1. Definition
a. Hold D prima facie liable for any harm she causes
b. D at fault even if not blameworthy
2. Cases/Hypos
a. Established by Rylands
i. D held liable for damage caused to neighbor’s land
even though he exercised care in creating the
reservoir
3. Justification
a. Arguments in favor
i. D is creating one way harm towards the community
while D is benefiting; unfair to P
ii. Incentivize D. to make safety innovations
iii. Forces people to weigh the benefits and cost of
engaging in activity
 b. Arguments against
i. Stifles technological progress
ii. Negligence
1. Definition
a. Hold D liable only if she acted w/ insufficient care
b. D accountable only if blameworthy
c. Negligence is under two categories:
i. Negligence as a separate tort
ii. Negligence as a breach-a form of subpar conduct
1. This is the 1 we are talking about
2. Cases/Hypos
a. Negligence established by Brown
i. D accidentally hit P in eye with a stick. D not liable
because he wasn’t negligent (he exercised care).
3. Justification
a. Shift loss from P to D if D was morally blameworthy
b. Strikes a better balance than SL
IV. Modern Negligence-
a. The Negligence Standard
i. For Adults
1. An Objective Standard-intelligence is not relevant!
a. RST (2d)§283: Conduct of a Reasonable Man
i. To avoid being negligent, you must behave like the
reasonable man similarly situated, unless you are a
child.
ii. Using your own best judgment is not enough to
avoid negligence claims. You must exercise the
same caution as the reasonable man.
b. Special Knowledge and Skills RST 12
i. If an actor has skills or knowledge that exceed those
possessed by most others, these skills or knowledge
are circumstances to be taken into account in
determining whether the actor has behaved as a
reasonably careful person
1. Does not apply to professionals, including
doctors, rst 299 applies instead
c. Why an objective Standard?
i. To avoid fraud (“I’m not smart” defense)
ii. Administrability-easier to apply in court
iii. Wider range of protections for P.
iv. Incentivize better behavior
d. Why not adopt the “rational man”?
 i. While the reasonable man acts with society’s best
interest at heart, the rational man acts with his own
economic interests at heart.
2. In practice
a. The jury determine whether D acted reasonably given her
circumstances
i. Jury should not compare D’s behavior to their own
3. Exception
a. §9 Emergency: Unexpected emergencies requiring rapid
response are taken into account when considering whether
the actor’s conduct is that of a reasonably careful person.
i. Especially when making split second decisions, in
which person cannot weigh choices and must act
fast.
ii. Unlike the necessity defense for intentional torts,
an actor cannot create the emergency and then use
the emergency defense
ii. For Professionals
1. Principle-CUSTOM, not reasonableness, PREVAILS
a. 299§A-Unless he represents that he has greater or less skill
or knowledge, one who undertakes to render services in the
practice of a profession or trade is required to exercise the
skill and knowledge normally possessed by members of
that profession or trade in good standing in similar
communities
i. Takes into consideration the availability of
resources but not the expertise!
1. Doctors within the same specialty should all
have the same uniform information
regardless of location.
2. Resources, however, vary significantly. A
doctor who has access to MRI machine can
be held to higher standard than one who
does not if C/A arises from failure to use
MRI if custom dictates that other doctors in
good standing would have ordered an MRI
test.
b. Professionals= doctors, engineers, lawyers, etc.
c. Not compared to the average professional; this would mean
half are negligent
2. In Practice
a. Jury defers to expert testimony on the CUSTOM
3. Exceptions
a. Those who have lesser skill (med students) held to lower
standard
 b. Specialists are held to higher standard of GP, but to the
same standard of other specialists
i. GP having to make emergency choice and perform
something normally performed by specialist would
still be held to GP standard
c. DUTY TO DISCLOSE IS NOT DICTATED BY
CUSTOM
i. A patient’s right to self-decision, not the custom,
shapes the boundaries of the duty to reveal
ii. Liability can be imposed if jury finds that doctor’s
disclosure was unreasonably inadequate
1. If doctor discloses all the risks and knows
that P. didn’t fully comprehend the risks,
may weigh into determination of negligence
iii. If fact finder finds that P would not have undergone
surgery when given full disclosure and the injury
resulted from the surgery, doctor liable.
1. If P would still have undergone surgery,
with full disclosure, doctor not liable.
iv. Exceptions
1. Emergency exception
2. If doctor knows patient will become ill or
have extreme reaction when told all the risks
3. No need to disclose obvious risks (infection)
iii. For Women
1. Not generally a standard, but has been CONSIDERED by the
courts for sexual harassment claims
a. Evaluating sexual harassment claims from the “reasonable
person standard” might reinforce discrimination
b. Women and men have different experiences. Women might
perceive a little comment (i.e. “nice legs”) as a prelude to
sexual violence because women suffer from sexual
violence disproportionately.
iv. For Children
1. A subjective approach
a. When the child is engaged in child-like activity
i. RST (3d) § 10: Children
1. A child’s conduct is negligent if it does not
conform to that of a reasonably careful
person of the same age, intelligence, and
experience
a. Evidence of age, intelligence, and
experience; comes from those who
know the child; comes from the
child; what the child knows about the
 activity; how frequently the child has
engaged in the activity; what
instruction the child has received
about the activity
ii. Justification
1. Children become adults by making mistakes
and learning
2. When someone is a child, it is obvious to the
other person and they can adjust their
behavior accordingly
3. Administrability-you don’t have to worry
about people faking teir age
b. But not when engaged in a dangerous, adult activity
i. If the child is engaging in dangerous activity
characteristically undertaken by adults, the child is
held to an adult reasonable standard
ii. EMERGENCY EXCEPTION
1. Child standard of reasonable care would
apply if they engage in adult activity on an
emergency basis (dad has heart attack while
driving, kid takes the wheel)
a. Why? Don’t’ want to discourage life
saving measures
c. What is a dangerous activity?
i. Not consistent in the court system
ii. Operating motor vehicles is generally seen as
dangerous bc of risk of harm to 3rd party
iii. The context matters
a. Golfing in NY next to busy street v.
open air Utah
d. Justification
i. Pros:
1. Parents incentivized to weigh pro/cons of
child engaging in activity
ii. Cons:
1. Disincentivizes children to try new things
v. For the Mentally ill
1. Principle
a. Breunig approach; Mental illness is taking into account
only when incapacitation:
i. occurs suddenly; AND
ii. could not have been reasonably foreseen; AND
 iii. is of such a nature that D cannot exercise reasonable
care
b. Emotional disability is not taken into account
2. Justification
vi. For the PHYSICALLY Disabled
1. Principle-Objective Standard
a. RST (3d) § 11: Disability
i. The conduct of an actor with a physical disability is
negligent only if the conduct does not conform to
that of a reasonably careful person with the same
disability
ii. Applies to permanent and temporary PHYSICAL
disabilities
1. Like the flu or having a concussion
2. Being drunk doesn’t count
iii. Requires the disabled to take extra precautions
1. Visually impaired would need to utilize a
cane, a dog, or attendant
a. If visually impaired person is injured
on the street and was found not have
been using any of those, they were
being negligent (Smith)
b. If they are using something to aid
and are still hurt, they won’t be
found liable for contributory
negligence (Davis)
2. Justification
a. Incentivize carefulness
vii. For Professionals
1. RST (3d) § 12: Knowledge and Skills
a. If the actor possesses special knowledge and skills that
exceed those possessed by most others, this is taken into
account in determining whether they behaved reasonably
b. Did D Fall Below the Standard of Care? How do we Decide?
i. Depending on the Circumstances Consider:
1. The reasonable person-always the default for this class along
with commons sense!
2. BPL/Cost-Benefit Analysis-DO NOT APPLY THIS AS
DEFAULT FOR THIS CLASS
a. Principles
i. RST 3d S3 Negligence: A person acts negligently
if the person does not exercise reasonable care
If B<PL, D is liable under all the circumstances. Primary factors to
B=cost of taking precaition
P=probability of injury (ex
poste)
 consider in ascertaining whether the person’s
conduct lacks reasonable care are the foreseeable
likelihood that the person’s conduct will result in
harm, the foreseeable severity of any harm that
may ensue, and the burden of precaution to
eliminate or reduce the risk of harm.
1. In Bolton, the court held that the risk of
cricket balls hitting anyone over the fence
was so low that a reasonable man would not
take action to prevent the risk.
2. Breach of duty exists when B<PL (Carroll
Towing).
a. B=burden of taking precaution (cost)
b. P=probability of injury
c. L=severity of injury
3. The BPL approach is taken ex ante (before
the fact) and asks what a reasonable person
would have inserted into the equation.
b. Criticisms
i. Utilitarian considerations of CBA do not capture the
nuances of our moral reasoning
ii. CBA legitimizes morally repugnant choices
1. Example: Careful driving in rich
neighborhoods and less careful in poor
neighborhoods. Higher wage earners would
require greater compensation for lost wages.
iii. Tough to calculate!
iv. Incomparable values
1. How do you compare the cost of death to the
cost of taking precaution?
3. Custom
a. Principle
i. RST (2D) 295A Custom: In determining whether
D was negligent, the customs of the community are
taken into account but are not controlling where a
reasonable man would not follow them.
ii. D’s failure to follow an accepted custom or practice
is sufficient to show negligence if that failure is the
proximate cause of injury.
iii. Even if something is not a custom, that can’t be
used as a defense to negligence, because it shows
the whole industry may be lagging behind, but this
 is no excuse for the failure to take reasonable
precautions
1. In TJ Hooper, D. was negligent in not
having a radio on his boat. Although this
was not the custom for the industry, the
court held that having a radio is a precaution
that a reasonable man would take given the
extreme usefulness of radios.
b. In practice
i. It’s up to the jury to decide whether D acted
reasonably. They may find:
1. It was reasonable for D to not follow the
custom
2. The custom is unreasonable
3. Violation of custom=D was negligent
ii. Really important for malpractice cases except with
duty to disclose:
1. This is controlled by reasonableness
c. Justification
i. Custom shows that a certain precaution is doable
ii. Groups that create custom are better positioned than
judges/juries to make informed decisions about
which risks are reasonable and which aren’t
d. When custom is appropriate
i. For situations arising out of contracts/consensual
relationships
1. Not appropriate when parties have different
information or two people are strangers.
4. Statutes
a. Principle
i. RST 14 An actor is negligent if, without excuse, the
actor violates a statute that is designed to protect
against the type of accident the actor’s conduct
causes, and if the accident victim is within the
class of persons the statute is designed to protect.
b. Compliance with a statute
i. Compliance with a statute may constitute some
evidence of due care, but does not preclude a
finding of negligence
ii. Legislation sets a floor on conduct, not a ceiling
iii. Courts require that actors surpass statutory standard
when reasonableness requires so
c. Not complying with a statute
 i. Violation of CERTAIN statute is deemed
conclusive evidence of breach=”Negligence per se”
1. Can be constituted by acts or omissions,
which must be the proximate cause of the
accident for liability
ii. Negligence established as matter of law, so that
breach of duty is not a jury questions
d. Permitting Statutes
i. General Rule
1. Often a violation of such a statute will not
be considered negligence per se.
2. Licensing requirements, for example, is
merely a regulatory/administrative
requirement; not related to duty of care.
ii. Exception
1. Lack of required license or permit can be
evidence of negligence if D violated
“substantive safety” standards by the
licensing or permit requirement
2. Example: D Property owner installs furnace
w/o securing permit required by law.
Evidence indicates that inspector would not
have issued permit b/c furnace emits
dangerous gases. If P a suffers injury from
emissions, D's violation of permitting law is
negligence per se.
e. Exception
i. If a statute is designed to promote public safety and
complying with the statute in particular situations
will be MORE dangerous/involve a greater risk of
harm, then you will not be liable for not complying.
1. Tempered by reasonable ness and common
sense!
ii. Unless the statute is construed not to permit such
excuses, violation is excused when:
1. Violation is reasonable bc of actor’s
incapacity
2. He neither knows nor should know of the
occasion for compliance
3. He is unable after reasonable diligence or
care to comply
4. He is confronted by an emergency not due to
his own misconduct
 5. Compliance would involve a greater risk of
harm to the actor or others
c. Proving Negligence
i. When there isn’t evidence of breach: special case of res ipsa loquitur (a
jury instruction)
1. In a select group of circumstances, a jury may infer D’s negligence
and that D’s negligence caused P’s injury when:
a. It’s the type of even which ordinarly does not occur in the
absence of negligence, such as:
i. Barrels of flour/pianos falling from higher levels;
patients undergoing surgery (unconscious-can’t
produce evidence)
b. Other responsible causes, including P’s conduct and third
parties, are sufficiently eliminated, AND
c. The indicated negligence is within the scope of D’s duty to
P
2. Res ipsa is about the burden of production! Not persuasion
a. Requires P to present some evidence (i.e. evidence that
satisfies the requirement for getting a res ipsa instruction)
b. Usually, P has to produce the evidence that shows D is
negligent, but with res ipsa instruction, D has to prove they
weren’t negligent
3. Smoking out Effect
a. A res ipsa instruction is particularly useful when there is a
group of Defendants working in concert (not useful for
defendants working independently) as in Ybara
i. He woke up from surgery with extreme shoulder
pain
ii. He was unconscious so could not offer proof of
negligence
iii. Multiple doctors, res ipsa could force them to say
who did what!
4. How D could respond to res ipsa
a. Showing they acted with reasonable care
b. Showing the class of case is not appropriate for res ipsa

V. Plaintiff’s Conduct
a. Contributory Negligence
i. Principle
1. Contributory negligence is conduct on the part of the plaintiff
which falls below the standard to which he should conform for his
own protection and which is a legal contributing cause co-
 operating with the negligence of the defendant in bringing about
P’s harm
2. If P is found to be contributorily negligent, P may be barred from
recovering for damages
3. The actions of D do not excuse P from his obligation to exercise
ordinary care
ii. An Affirmative Defense
1. When D claims P was contributorily negligent, burden is on D to
prove that P’s contributory negligence is the proximate cause of
P’s injuries
iii. Justification
1. Inability of human tribunals to mete out exact justice
b. Comparative Negligence
c. Cause
d. Duty
VI. Modern Strict Liability
a. Animals
b. Ultrahazardous activities
c. Vicarious liability
VII. Damage
a. Compensatory Damages
b. Punitive Damages
VIII. Products Liability
a. Background
b. Manufacturing defects
c. Design defects
d. Warning defects
e. Plaintiff’s conduct

IX. Apportionment of Liability Among Multiple Tortfeasors

a. Appointment of harm to causes
b. Joint and several liability