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Tort Outline

Prof. Richard Weisberg, Torts, 2018, Cardozo Law School

A tort is a civil wrong that causes someone else to suffer a loss or a harm resulting in legal liability.

There are three broad categories of torts: Intentional Torts, Strict Liability, and Negligence. Intentional torts are a
category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. Negligence
refers to a tort that results from the tortfeasor failing to take sufficient care in fulfilling a duty owed. Strict liability refers
to situations where a party is liable for injuries no matter what precautions were taken.

Approach to torts, two questions: Should our system of law allow a plaintiff to recover on this issue? Also, what is the
current state of our law on this issue?

Torts must always start with a volitional act.

 Tort Concepts and Policies

o Passive Plaintiff Theory: P is relatively passive as compared to the D so no reciprocal risk creation
o Cheapest Cost Avoider—Liability should be placed on party who can most cheaply avoid the harm
o Reciprocal Risk Creation- way of thinking about torts and standard of care: we are always creating risk
towards others, and them to us. Think about our behaviors in terms of risk.
 ~~ Passive Plaintiff Theory, that D should be more liable if P wasn’t also creating risks
o Loss Spreader—Place liability on party best able to spread the cost over the greatest number of people
o Crowded World Theory- reasonably necessary contact in everyday life is inevitable and must be
accepted
 Wallace v Rosen school fire drill found for D

o Is the defendant uniquely positioned to prevent harm? If so, place more liability yon him.

 The Evolution of Torts

o Hulle v Orynge: Originally, one was liable even if the action was lawful, almost on a strict liability basis.
o Weaver v Ward: to allow defenses in which the defendant was utterly without fault but the burden of
proof of the defense was placed on the defendant.
o Brown v Kendell: fault is generally required for liability and the plaintiff must prove the fault.
 To prove fault, you can show either intention or negligence.

Intentional Torts
An intentional tort is when a person intentionally invades an interest that the law protects.

As a matter of public policy, damages available for intentional torts tend to be broader and more generous than for
negligent torts. To preserve individual well-being and overall social welfare, society generally wishes to deter its
members from intentionally attacking each other. Intentional torts are harder to prove though, since there are
subjective elements involved.

The point of Assault and Battery is to protect one’s physical persons and their dignity.

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 The Doctrine of Transferred Intent states that intent to cause battery, assault, false imprisonment, trespass to
land, or trespass to chattel which results in the completion of any of these five tortious acts, will be considered
an intentional act, even if the actual target of the tort is one other than the intended target of the original tort.
o Talmage v Smith boys on shed
 Intent for one tort but committed another is sufficient to satisfy intent i.e. intent for assault but actually touched
the person and committed battery. Res. 2d 18(1) 2-13

 Punitive Damages are awarded when the defendant’s actions are particularly malicious or outrageous
o Fisher v Carrousel racial high punitive damages; Mohr v Williams good intent little punitive damages

 A battery, assault, and trespass to land action are actionable per se and do not require actual damages. Nominal
Damages will still be awarded. However, trespass to chattel and IIED require actual damages.

 Intent, Defined
o Intent is doing something with purpose or with substantial certainty that the tortious act would occur.
 Garrat v Daily, substantial certainty.

I. Battery is the (1) intentional causing (2) of a harmful or offensive contact (3) with the person of the plaintiff (4)
w/o consent or privilege. Res. 3d, § 101
a. Contact is offensive if it offends a reasonable sense of personal dignity OR if the actor knows that the
contact seriously offends the other's sense of personal dignity, and it is not unduly burdensome for the
actor to refrain from causing the contact." Res. 3d, § 101
i. Offensive Examples: towel, itching powder left for P [Res. 2d § 18 C: c] /// a dog set upon P
[Id.] /// kiss sleeping P [Res. 3d § 101 C:d, illus. 6] //// splash water w/ car [R-2d § 18 C: g, Illus.
6].
b. Degree of contact doesn’t matter. Any touching can constitute a battery.
c. Approach: Was there intent to make the contact? And a harmful or offensive contact?
d. The intent is to touch harmfully or offensively NOT to cause injury . The tortious act is “contact.”
i. Intent = purposefully or substantially certain for the contact to happen.
e. Intent v Motive
i. Motive can be good and still liable. playfulness Vosburg v Putney. Doctor ear Mohr v Williams
f. Contact need not be direct, it can be indirect.
g. Contact can be established by the touching of objects close to the person or that they were relying on.
Fisher v Carousel- plate. Garrat v Dailey- chair.
i. "some intimate extension of the P’s person” contact = offensive as contact w/ the body
h. The slightest touch in anger constitutes battery. Cole v Turner.
i. Don’t need a harmful motive. Vosburg v Putney
i. One is liable for the unforeseen extent of the battery as long as there was intent for the tortious act.
Vosburg v Putney kids disabled legs. The “Eggshell Skull” principle.
i. “You take the plaintiff as you find him”
j. The plaintiff need not be aware/ conscious of the touching- just that if given the choice …
i. Sleeping Beauty Hypo, Mohr v Williams doctor ear

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II. Assault is the (1) intentional creation (2) of a reasonable apprehension (3) of an imminent (4) harmful or
offensive contact w/o consent or privilege. Res. 3d, § 103
a. Words alone do not constitute an assault; there must also be an overt act, even if a small one.
i. Words can negate an assault though. “I will not hurt you”
b. Does not require physical contact. I de S v de S
c. Was there an apprehension of imminent contact, with present ability? Western Union v Hill
i. Future threat may be IIED though
d. The contact apprehended need not be direct from the D to the P i.e. throwing something at P is
sufficient for assault Res. 3d § 103 cmt. c, illus. 9
e. Insulting / creepy / threatening isn’t enough. Needs to be a reasonable apprehension of contact.
f. Intent of malice or hostility isn’t needed. Therefore, pranks can be assault. Res. 2d, 34. Illus. 1
g. Could be battery without assault. Sleeping Beauty Hypo
h. Apprehension, not fear. Scrawny aggressor.
i. Actor believes contact will happen unless an outside force intervenes, he flees, self-defense i.e.
bodyguards- yes assault Res. 2d § 24.

III. Trespass to Land is the (1) intentional interference with (2) the land (3) of another (4) w/o consent or privilege.
a. Nominal Damages allowed. Dougherty v Stepp
b. One needs only to intent to step on the land, immaterial of any mistakes the person is acting under.
c. Can start originally w/ a lawful entry that expired. Rogers v Board of Road snow fence
i. Defense of Property- A property owner is not allowed to use deadly force to defend his land
from trespassers Katko v Briney not principal house, no sign, thief
1. Talmage v Smith boys, shed, unreasonable force, transferred intent

IV. Trespass to Chattel is the (1) intentional interference (2) with another person's (3) movable personal property
(4) there was actual damage or dispossession (5) w/o consent or privilege.
a. Only liable if: (Glidden v Szybiak)
i. chattel is damaged or
ii. owner is deprived for a substantial time or
iii. bodily harm is caused by its interference

V. False Imprisonment is the (1) direct or indirect (2) intentional (3) confinement (4) of another (5) who is
conscious or harmed by the confinement. Res. 2d § 35.
a. Protects dignitary interest of freedom of movement.
b. Words alone can suffice.
i. Future threats usually do not work. Must be imminent threat.
c. Requires consciousness OR an injury; sleeping / drunken stupor not false imprisonment unless there is
an injury. Circus Cage Hypo
d. A subjective belief of false imprisonment, even if created by the defendant, is not false imprisonment
Hardy v Labelle temporary employee questioned 20-45min
e. The confinement must be within definite physical boundaries. Res. 2d 36(3)
f. Reasonable means of escape + plaintiff knows about it = no FI.
g. Children? Come down to a conscious issue.
h. Did they enter the imprisonment voluntarily?
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i. Defenses:
i. Recovery of Property / Shopkeeper’s Privilege- a shopkeeper has the privilege to detain a
suspected shoplifter for investigation. There must be a reasonable belief that an item has been
taken unlawfully + the investigation was reasonable. Bonkoswski v Arlans
1. Wrong belief doesn’t make it unreasonable.

VI. Intentional Infliction of Emotional Distress occurs when 1) intentional or reckless conduct; 2) that is extreme
and outrageous; 3) which causes 4) severe emotional distress. Harris v Jones
a. Balances an individual’s emotional well-being versus the community/ societal interest
b. Outrageous conduct exceeding all bounds usually tolerated by a decent society
c. Threats versus Insults
i. Threats are more likely to constitute IIED, especially if imminent.
1. State Rubbish v Siliznoff- garbage mafia threatened him
ii. Insults generally aren’t sufficiently “outrageous” nor cause “severe emotional distress”
1. Slocum v Food Fair- shopper, price, you stink, heart attack
2. Harris v Jones- constant mocking of stutter, supervisor, asked to stop
3. Insults can go too far: Halio v Lurie, the “tortured turk” case ex-girlfirend mocking,
taunting, jeering letters YES IIED
d. Must know the victim is present. Otherwise no intentional infliction.
i. Taylor v Vallelunga girl father beaten
e. Need Actual Severe Emotional Distress suffered
i. Must always show that it was so severe he sought medical aid
ii. But don’t need actual physical or bodily harm State Rubbish v Siliznoff

f. Transferred Intent, No transferred intent for IIED.

i. However, recovery may be possible for NIED.

g. Vulnerability of the Plaintiff

i. Korbin v Berlin, young girl told horrible things about parents YES IIED.
ii. Drejza v Vaccaro police officer interview rape victim 1 hour after, “little panties home” YES IIED
h. Common Carriers, Public Utilities, and Innkeepers have been held to a higher standard, to treat the
public w/ courtesy
i. Lipman v Atlantic Coast Line (carrier) + Emmke v De Silva (hotel)
i. Courts are reluctant to get involved in internal family disputes but they will if it is outrageous
i. If family dispute, maybe know more that it causes severe emotional distress
j. Reasons not to allow IIED
i. Since it is so nebulous, a flood of lawsuits and fraudulent claims
ii. Toughening of the mental hide better protection than the law
iii. Constitutional 1st Amendment allows people to say what they want

Defenses to Intentional Torts

Consent and Necessity.
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I. CONSENT

 Privilege of Consent- consent is determined by assessing the overt acts + surrounding circumstances.
a. O’Brien v Cunard- Didn’t object + raised arm + notice signs + voluntary stayed on boat = consent.

b. Crowded World Theory- In some circumstances, a certain amount of personal contact is inevitable and
must be accepted by the individual = no battery. Fire drill, parent, teacher, stairwell. Wallace v Rosen

 Sports’ Games- generally, if the game is of a violent nature, then there is a consent to touching but anything
going beyond the level of expected and consented to touching can be tortious.
a. Hackbart v Cincinnati Bengals- Implied consent is not limitless. football illegal move after play rules.

 Doctors- need explicit consent unless it is an immediate and life-threatening situation. We don’t want anyone
else to take over our physical autonomy into their hands.
a. Mohr v Williams- right ear consented, left ear issue, operated on it. No consent, liable for battery

 Consent based on Deceit- consent predicated on false pretenses is not valid consent.
o De May v Roberts- Doctor, “assistant”, P let in, assistant touched.

 Consent to Illegal Activity- will we allow consent to negate tortious activity when the activity is unlawful? Courts
are divided on this issue i.e. boxing cases.
o Factors to Consider for consent to illegal activities
 Policy of denying compensation to an intentional wrongdoer
 Deterrence by denying recovery
 Liability as a deterrent for defendant and others like him
 There was, after all, an intentional battery.
 Legal principle of “in pari delicto potior est conditio defendentis” In equal guilt, the position of
the defendant is the stronger
o Consent doesn’t help when the statute is there for that i.e. consensual minor sex is still liable

II. NECESSITY

 Public Necessity- act can be deemed non-tortious if it is undertaken for society’s interests.
o Surroco v Geary- Mayor, san Francisco fire, destroyed house, public official
 Assumption must be reasonable even if not correct. i.e. wind changed directions
 Private individuals also can take it into their hands—civil war, stole liquor to not allow Yankees.
OK. Harrison v Wisdom

 Private Necessity- a party acting under private necessity is liable for damages Vincent v Lake Erie

III. SELF- DEFENSE (not covered)

 Self-Defense- one can use reasonable force to avert the threatened harm
o Deadly Force- only if that is the only way to avert the harm; if the other person is using it
 Defense of Others- typically if the other person would have been allowed to use self-defense, I can on his behalf
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Negligence
To be liable, generally fault must be shown. Fault can be shown by showing negligence on D’s part. To support a theory
of negligence, it is the plaintiff’s burden to prove duty, breach of duty, causation, and actual damages.

 Approach: What was the plaintiff’s causally linked theory of negligence? Are there multiple theories?

Duty & Breach

Individuals owe a duty to act as a reasonably prudent person would have acted in similar circumstances. Vaughan v
Menlove. Reasonable people consider how foreseeable a risk is, likelihood of it occurring, gravity of the risk, and
possible alternatives to the proposed conduct.

Judge Learned Hand’s formula for calculating what a RPP would have done is: foreseeability of the harm + Gravity of the
harm versus the Cost or Burden of avoiding the harm.

 The Hand Formula

o Foreseeable
 If no foreseeability, no negligence. Cohen v Petty car fainting
 Reasonability factors into how foreseeable it was.
 The risk of harm need not be probable: “If there is some probability of harm sufficiently serious
that ordinary men would take precautions to avoid it, then failure to do so is negligence.”
Tullgren v Amoskeag
o Gravity of the Harm
 Nature of the Object
o Cost / Burden of Avoidance
 Monetary Cost
 Low $ Cost: Chicago v Krayenbuhl, railroad turntable unlocked Liable
 High $ Cost: Davison v Snowhomish road, guardrails, prohibitively high, no liability

 Communal or Societal Cost: measured not just in dollars and cents

 Barnes v US- TSA, shoes, fell, install chair. Impose on everyone need chair.
 Commonplace Items- Lubitz v Wells golf club in backyard kid
 Left car running, thief stole, hurt people, keys. No liability- Lucero v Holbrook
 Instruments of Business

 General Standard-of-Care Factors

o Emergency Doctrine- reasonable behavior is based on the circumstances that it occurred in. Cordas v
Peerless taxi driver robber abandoned car

 Custom and Trade Practice- relevant but not determinative. Trimarco v Klien glass bathtub landlord
o Not Determinative- TJ Hooper, Judge Learned Hand: “sometimes there are precautions so
imperative that even their universal disregard will not excuse omission”
Approach:
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1) Is the evidence of custom relevant? Is it ridiculous or reasonable?

2) Custom is a factor but not determinative. Custom does not equal reasonability.

Varied Standard of Cares

Professionals and children have a varied standard of care from that of the ordinary person. In truth, a professional is just
the SOC of a reasonably prudent professional. Children, though, have a subjective standard of care.

A professional breaches his standard of care if he commits an act or omission that is in violation of the community
standard. Professionals are expected to act with the level of skill and training of other professionals.

 Professionals, generally:
o Definition: Professionals hold themselves out as having superior training, skills, or abilities.
o Professionals are not guarantors of good outcomes; test for liability is Hodges v Carter:
1) Requisite degree of knowledge and skill necessary to the practice of his profession
2) Exercise best judgement
3) Exercise reasonable care and diligence

o Old- Locality Rule- certain professionals used to be judged based on other professionals in their locale
[doctors]. Now more nationally judged. Morrison v MacNamara doctor

o Custom plays a large role in ascertaining professional standard of care but not determinative. How other
professionals would have acted in similar circumstances Heath v Swift Wings
o Since trade practice and custom is so important, expert testimony is typically required to
properly instruct the jury.
o Internal Rules is like custom, plays a role in establishing SOC. Krayenbuhl rule to lock turntable.

 Types of Professionals
o Pilot- Heath v Swift Wings; Use expert testimony to figure out custom
o Lawyer- Hodges v Carter
 Legal Malpractice; three-part test.
o Doctor- Four torts ways doctors can be sued:
 Battery- Mohr v Williams ear doctor right
 Careless Medical Malpractice [“jugular negligence”] Boyce v Brown.
 Res ipsa loquitor- the thing speaks for itself Boyce v Brown
 Lack of Informed Consent- not informed of the risks. Scott v Bradford ankle x-rays

Professional Lack of Informed Consent Test:

1. the physician failed to inform the patient of a material risk
 A risk is material if it is likely to affect patient’s decision—Canterbury v Spence
 Reasonable patient versus this particular patient. Roman catholic abortion hypo. A
loophole.
2. the patient, if informed, would not have elected the treatment- P’s burden
 Two approaches: Subjective + Objective, reasonable person
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3. the risks that were not disclosed resulted in injury to the patient.

 Children have a flexible standard of what is reasonable to expect of children of like age, intelligence, and
experience.
o Rationale: We want kids to be kids.
o Child until 17; under 5 not even capable of negligence.
o Two Exceptions:
1. “Inherently Dangerous” Activities- children are held to adult SOC. Robinson v Lindsay
snowmobile, motorized vehicles
2. Adult Activity- Delwo v Pearson Standard-- activities normally undertaken by adults, for which
adult qualifications are required.
 Rationale for raising SOC: By raising children’s standard, adults become more careful.
Deterrence. Reciprocity concept.
o Can be easier to establish intentional tort by children than negligence (cf. Garrat v Dailey)

Imposing a Standard of Care from a Statute—Negligence Per Se

Negligence Per Se is a doctrine whereby a standard of care is imposed by statute. Essentially, the legislature set the
standard for determining duty owed. Whether to adopt the statutory standard or not is ultimately a decision for the
court as “goalkeeper” to make. The courts will look to if it is appropriate to apply the statute, if the statute was created
to protect the injured party, whether there was a causal link between the violation and the injury, and if there was an
underlying common law duty.

 Applicability of the Statute: (four things to look at before even applying a statute)
o Is the statute relevant and appropriate to the torts action?
 In Perry v SN and SN, sexual abuse, not appropriate to use the statute bec statute only
gave 2k + 6 months in jail for not reporting molestation, so inappropriate to use it to
impose stricter penalty. A range of criminal responsibility that may not translate to an
appropriate range of recovery in tort.

o Is there a causal link between the violation of the statute and tortious injury
 Stachniewitz v Mar-Cam statute: alcohol visibly drunk, bar fight maybe fight anyways;
Ferry Boat Life Preserver Hypo maybe drowned anyways; Brown v Shyne chiropractor
no license no causal link

o Was the statute created to protect the party that got injured? Legislative Intent
 Same Hazard. Was the hazard that caused the injury, what the legistlature wanted to
protect against? Gorris v Scott contagious disease, sheep, boat not liable diff hazard

o Is there an underlying common law duty?

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 Perry, sex kids no report- NO; Osborne v McMaster, unlabeled poison- YES

 How much Weight should be given to the Applicable Statute: different jurisdictions
o Negligence Per Se- this is the SOC! No jury necessary. Osborne v McMaster poison label
 Martin v Herzog if the violation of the statute is “unexplained”
 After, still need to determine if still causation. Martin v Herzog
o Presumption of Negligence- D must rebut the presumption Zeni v Anderson snow path car hit
o Mere Inference- jury can give it what weight they want
 Brown v Shyne, jury told “mere inference” not even that

 General Counterargument: Judge Traynor in Clinkscales v Carver: criminal statutes don’t create a civil
liability; that power resides with the court.

 When it is a third party doing the injury, it is much harder to find a duty. JS & MS v RTH; and Ney v Yellow Cab

Proving Negligence

A plaintiff can prove negligence in a few ways. The easiest way would be directly but that rarely happens. More
commonly, the jury will infer negligence from circumstantial evidence; that is, evidence that points to the conclusion
that more likely than not the defendant was negligent.

Another way that negligence can be inferred by a jury is that the mere fact that the accident occurred is indicative of
negligence. The doctrine of Res Ipsa Loquitur states that if we don’t know what the specific act of negligence was, but
we do know that that from the mere fact that it happened, more likely then not someone was negligent, and that
negligence is attributable to the defendant, an inference of negligence is warranted.

 Circumstantial Evidence
 Banana Slip Cases—the question is how long has the item been left around, has D been “put on notice”
Third party left it there.
o No liability: Goddard v Boston & Maine RR, Holmes, fresh banana, a second ago
o Liable: Anjou v Boston RR- old banana so liable bec left for a while
o Has it been out a reasonable amount or unreasonable amount of time. In the terms of Joye v
Great Atlantic, has the D been “put on notice” actual or constructive.

 Store Products-- Store owners have a duty to customers to exercise reasonable care in keeping its
premises reasonably safe. Included is reasonable inspections that are commensurate with the risks
involved.
o Puddle of Milk- product is marketed so the customers touch them + P had to show it had been
left out for an unreasonable amount of time- “on notice” Ortega v Kmart
o Did D take basically every precaution?
o Ortega, Butt, and Corbin v Safeway all suggest that for a plaintiff to recover in “slip and fall”
cases, it must be shown that
 the store had actual or constructive knowledge of a condition on the premises,
o Ortega v Kmart- self-service grocery, more risk, more constructive notice of
possible risks, more precautions necessary
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 the condition posed an unreasonable risk of harm,

 the store did not exercise reasonable care to reduce or eliminate the risk, and
o Butt v Resendez Grapes no liability bec took virtually every precaution
 the store’s failure to use such care proximately caused her injuries.

 Res Ipsa Loquitor- “The matter speaks for itself”

Res Ipsa Loquitar allows a jury to conclude that an unexplained accident more likely than not came from D’s negligence.

Approach: be on the look out for unexplained accidents where we don’t know what the specific act of negligence was.
If we know what the specific act of negligence was, don’t use RIL.

Using RIL: as a plaintiff, try to eliminate other possibilities other than negligence as the cause (i.e. bad weather.) As a
defendant, try to show other people had access, and there are other possible causes other than negligence.

o P must show two things for RIL: Bryne v Boadle barrel fell on P
1. Instrumentality that caused the injury is in the exclusive control of the D; the inferred negligence
must be attributable to a specific person.
a. This element is about showing that the negligence is attributable to the defendant. Read
broadly, even if not necessarily in D’s control now, still allows res ipsa (i.e. glass in soda can)
b. Larson v St Francis Hotel armchair feel from hotel not liable
2. this injury would not have happened in the absence of negligence.
a. Kmart v Bassett automatic doors close on P, no liability, maybe happen anyways
b. Sometimes expert testimony must be taken to determine if the injury could have happened
in the absence of negligence

3. ((P must show they weren’t a factor in bring on their own injury-- some jurisdictions))
o This requirement is just meant to show that the negligence was attributable to the defendant. If
you show that the defendant was negligent with re ipsa, then you can use the plaintiff’s conduct
to reduce the defendant’s liability under comparative negligence doctrine.

o Passive Plaintiff Theory: In most RIL cases, the P is relatively passive as compared to the D, so no reciprocal
risk creation

o Rationale for RIL: D has superior knowledge, or a much greater control over the evidence, help P go
forward with case and allow him to “smoke out” the evidence.

o Classic Cases
 Wayward Wheel Cases- favorable to RIL usage, McDougald v Perry tire flew off liable
 Single Car Accidents
 Doctor left something inside patient
o Exceptions: other healthcare people share the burden of negligence James v Wormuth
conscious decision + not in exclusive control of D
o Some court have shifted the burden from unconscious P to the doctor to prove not
negligent, in a case where wouldn’t have happened without someone’s
negligence, collective control Ybarra v Spangard.

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o Even though res ipsa allows an inference of negligence, D can still rebut the inference at trial Sullivan v
Crabtree

o Three weights can be given to RIL (like N per se)- yes negligence, presumption, mere inference. Usually just
an inference for the jury to weigh.

Causation
For a defendant to be liable, an event must be sufficiently related to an injury that the courts deem the event to be
the cause of that injury. To do this, the plaintiff must prove causation in fact and proximate causation.

(Expert Testimony may be needed to prove causal link between D’s negligence and P’s injury; Kramer v Wilkins
forehead cut, skin cancer)

Actual Causation
 Causation-In-Fact: But-for the defendant’s negligent conduct, more probably than not P’s injury would not have
occurred Perkins v Texas RR 37/25mph train wasn’t cause no liability “sine quo non”
 defendant’s Fantasy that injury was possible w/o the negligence. Reynolds v Texas RR unlit exit + poor
staircase + in rush—liable.

Variations in But-For Causation—very jurisdiction specific about what variation they accept.
 Joint Tortfeasors
 when two separate acts of negligence produce a single harm, each tortfeasor is wholly
responsible for the harm even though his act alone may not have caused it alone.
 Hill v Edmonds. Driver + tractor left = both liable to passenger.
 Apply the but-for test to each defendant

 Unsure Who Caused the Harm—two types

 We Have All the Defendants— “full universe of defendants”
 If there are two negligent parties, and they commit substantially similar negligence
acts, but it is impossible to prove whose conduct caused the harm (and they were not
acting in concert) then each defendant is liable for P’s damages and the burden is on
them to prove the apportionment of the damages.
o Summers v Tice hunting, both Ds shot, eye injury. Policy grounds + fairness +
equity + to “smoke out” evidence.
 Make the argument that it is not fair to hold someone liable who we
know for sure did not cause the harm—flies in the face of tort law.

o Ybarra v Spangard—patient hospital, res ipsa, couldn’t identify which health

care person did it, 8 or 9 all liable. To “smoke out” evidence.

 We Do Not Have All the Defendants

 Sindell v Abbot Labs—P’s mom took drug that caused cancer in P. P sued Ds who sold
%90 of the drug. Market Share Liability. Even w/o any real but-for causation.

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 Acting in Concert
 When two or more individuals are wrongdoers acting in concert and their actions injure a third
party, all may be liable, regardless of which of the individuals directly caused the injury.
 Mutually conspired in a concerted action to create and greatly enhance the risks to plaintiffs.
 Bierczynski v Rogers. drag racing, all liable.; good policy; good but-for test
 (((Hall v Du Pont. Cap gun case, mutually delegated to a trade association about standards and
marketing. Acting in concert.)))

 Multiple Causes of an Event—the Substantial Factor Test

 If two or more causes concur to bring about an event, then the cause-in-fact can be established
by the substantial factor test. This test is applied only if the it is impossible to use the usual but-
for test.
 Anderson v Minneapolis, Twin Fires Cases, but-for issue, found for P.
 In Anderson, it would have been impossible to apply the but-for test since the pre-
existing fire may have burnt down the plaintiff’s barn anyways. But, since the defendant
clearly contributed, we apply this less stringent “substantial factor” test.

 “Preempted Cause”
 When A’s negligence would have caused the harm but B’s negligence, or something else, got
there first.
 Having the capacity to cause the harm should not incur liability. Only the one who actually
caused the harm should be liable.
 Make the argument that the first guy only deprived the plaintiff of the object for a few minutes,
since the other person’s negligence would have caused it to be lost anyways later.

Proximate Causation
The second prong of causation is proving proximate causation. Proximate Causation is that you are only liable for those
harms that are within the risk of your own activity. Cardozo and Andrews argue about what is considered “within the
risk” that one is liable for.

Additionally, intervening events may break the causal chain and severe the defendant’s liability. When this occurs, the
intervening event is called a “superseding event.”

 Proximate Causation: Two Approaches

 Cardozo’s Ex Ante- look at the situation before the defendant acts and ask if the outcome was
foreseeable. Only liable for foreseeable risks to foreseeable plaintiffs who are within your “zone of
danger”. Palsgraf.

 Andrew’s Ex Post- Liable to the world at large, even if unforeseeable as long as the negligence was a
direct cause of the plaintiff’s injury. Let’s work backwards from what happened and ask how far we will
extend liability, where will we pragmatically draw the line. In Re Polemis.
 Foreseeability: since there was some foreseeable risk from the act of negligence.

 General Rules of Proximate Causation

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 If the type of harm that caused the injury was unforeseeable, then: ex ante- no liability; ex post- maybe
liability (like Palsgraf where fireworks were unforeseeable.)
 If the type of harm is foreseeable, but the extent of the harm is unforeseeable, then the defendant is
still liable (even according to Cardozo)
 Bartolone v Jeckovich, the “thin skull” rule, take the plaintiff as you find him.
 Unusual sequence of events but foreseeable outcome versus unforeseeable mechanism of harm
 The defendant is liable for foreseeable consequences that occur in an unusual manner.
 The defendant is not liable for unforeseeable mechanisms of harm.

 Probability of injury is immaterial. Throwing out of window %3 chance of hitting still liable.

Sometimes after the defendant’s negligent action, another intervening event will occur. The question is, does this new
intervening event supersede the defendant’s original act of negligence and divest him of liability? The main
determinative factor here is if the intervening event was a foreseeable risk of the defendant’s risk creation. When the
guy was negligent, was he negligent in the danger that actually ended up happening?

 Intervening Events
 Was the event foreseeable and was the outcome foreseeable
 If outcome was foreseeable but occurred in an unusual manner, then liable in
Derdiarian v Felix road negligent no barrier + negligent driver who didn’t take
medication and suffered an epileptic seizure
 If the outcome – the type of injury- was unforeseeable, then usually no liability.

 Four classic cases of intervening events where the defendant is liable:

o Subsequent Medical Malpractice- considered foreseeable
o Negligent Rescue- foreseeable risk, original negligent party is liable
o Reaction Forces- foreseeable i.e. crowd stampeded
o Subsequent diseases and accidents- negligent hit someone, crutches, slips and
gets hurt- original actor is liable

 In the following cases, liability will depend on if the intervening cause was foreseeable:
 Negligence of a third-party
 Third-party criminal conduct- leaving door unlocked, robber got in
o A formulistic approach would be to always cut of liability for intentional criminal
behavior. Watson v Kentucky; Ney v Yellow Cabs
 Intentional Intervening Act—more likely to cut off liability. Watson v Kentucky
 Act of G-d—if knew hurricane was coming

 Liability can be “cut off” because to impose liability would put be too extreme of a burden to place on
the tortfeasor. Policy.

The court can limit causation despite it being foreseeable if liability would be outside manageable limits in light of public
policy. Limiting factors: temporal & generational remoteness.

 Preconception Torts- when a child brings a tort action for a negligent act done before they were born that
affected them (i.e. medical malpractice birth defects.)
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 No liability for D; temporal remoteness; unforeseeable. Enright v Eli Lilly

Affirmative Duty to Act, Duty to Rescue, Duty to Warn

Generally, there is no duty to come to the aid of others even if there is no risk of harm.

The rescue doctrine provides that if a rescuer is injured during a rescue because of the negligence or intentional
wrongdoing of another, the original wrongdoer is liable for the rescuer's injury. “Danger invites rescue” Wagner v
International Railway, Cardozo.

 Situations that a duty does descend:

 the creator of a risk, even innocently;
 a special relationship, either to the perpetrator or the victim;
 if you began a rescue, since others may have relied on you
 Once you have taken steps to insert yourself into the situation you have a duty to rescue. Can
only stop for good reason, for instance if you are also in danger.
 DeShaney v. Winnebago County- mother of abused child sued state of Wisconsin alleging that
failure of state welfare officers to protect child from repeated beatings at hands of his father
 If don’t rescue, only liable for additional injuries, not original injuries sustained

 Special Relationships
o Special Relationship to the Victim
 Invitees; Store Owners
 LS Ayres v Hicks, Duty to Help fingers stuck in escalator. Instrumentality in the owner’s
control.
o Special Relationship to the Perpetrator
 Therapist
 There can be a duty to warn, violent threats. Tarasoff v Regents.
 Particularized foreseeability
 Parents to control their children
 California
 Spousal Duty
 A spouse owes a duty to report sexual abuse by their partner if they have actual or
constructive knowledge.
o JS and MS v RTH – child sex abuse on farm, sued wife of abuser. P wins.
 Particularized foreseeability-- a spouse has sufficient “control, opportunity, and ability”
to address the risk.

 Creation of the Risk

o If the defendant creates a risk (even innocently and non-negligently), they are under a duty to ensure
that no one is harmed by their risk creation. Res. 2nd § 321

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 Instrumentality is in the control of the defendant then there is a duty for the exacerbation of injuries from not
coming to the rescue. LS Ayres v Hicks. Invitee. Duty didn’t come until after the injury.

In deciding whether to impose a duty to warn, the court must balance:

 (1) foreseeability and severity of the risk of harm
 Particularized Foreseeability: “based on a ‘particular knowledge’ that a ‘particular
plaintiff’ or ‘identifiable class of plaintiffs’ would suffer a particular type of injury.”
o Could be actual or constructive foreseeable
 (2) the opportunity and ability to exercise care to prevent the harm
 (3) the relationships among the parties, and
 (4) the societal interest in proposed solution/notions of fairness and morality.

Negligent Infliction of Emotional Distress (NIED):

NIED is when the defendant’s negligent act caused emotional or mental harm to the plaintiff. To avoid a “hurt feelings”
case, there are two criteria required: that the negligence meet the Impact Rule / Zone of Danger Test/ Foreseeability
Test, and that the harm is so severe that there are physical outgrowths of the emotional harm.

 Element #1 for NIED— (one of these tests must be satisfied, depending on the jurisdiction)
o Impact Rule — P must show a physical impact – any impact- to maintain the emotional distress claim
 Largely overruled in Daley v LaCroix
o Zone of Danger Test—to recover for NIED, the plaintiff must be close enough to the defendant’s
negligent act that the plaintiff was at immediate risk of physical harm.
o Dillon/ Foreseeability Test- to recover for NIED, the emotional harm must have been reasonably
foreseeable.
 Majority rule 

 Element #2-- Physical Outgrowths of the Emotional Harm

o In addition to following either the impact, zone of danger or foreseeability rule, most states also require
that the plaintiff’s emotional harm was so severe that it created physical symptoms or sequela.
o The physical outgrowths need not be severe. But, P must prove that the physical outgrowths are the
natural result of the fright proximately caused by D’s conduct

 NIED in Bystander Cases

o P may recover for NIED caused by observing negligently inflicted injury of a third person if P (1) is
closely related to the victim, (2) is present at the scene of the injury at the time it occurs; and (3) as a
result suffers serious emotional distress.
 Thing v. La Chusa—P sued for NIED for hit child by car. Mother was not nearby. D wins.

o Minority View: Some jurisdictions (like NY in Bovsun v Sanperi) require that the plaintiff have been in the
zone of danger of the defendant’s negligence to recover in bystander cases.

 NIED in Wrongful Birth and Wrongful Death Cases

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o Fetus Deformities-- When a child is born with deformities due to defendant’s negligence, the parents
can recover for NIED on a wrongful birth cause of action. Procanick v Cillo
o Fetus Death-- when a defendant’s negligence causes a fetus to die before birth, the parents can recover
for their emotional distress. Endresz v Friedberg

 Typically, indirect infliction claims are only tenable if are based on actually witnessing a shocking, traumatic
injury to the direct victim, not general distress at another’s injury.

The Unborn:

Wrongful Life & Wrongful Birth

The parent or child can recover for medical expenses as result of wrongful life and wrongful birth claims. Parents get
expenses during child’s infancy, child gets expenses during his majority. Only the parents can recover for NIED. For these
claims to be viable, must prove defendant’s negligence.

Procanik v. Cillo- wrongful life: misdiagnosis caused child born with rubella syndrome, mother claimed she was
deprived of choice to abort child. P wins.
o Wrongful Life- COA brought by child (wishes he had never been born)
 2 claims: 1. Special medical expenses; 2. NIED
 Child cannot recover for NIED
 Public policy considerations:
 Can’t measure non-existence the pain of his impaired existence.
 Child can recover special damages/medical expenses
 Wrongful Birth- COA brought by parents
o 2 claims: Special medical expenses; 2. NIED
 Parents can recover for NIED under a theory of their own emotional distress
 Parents couldn’t recover for special damages for medical expenses incurred by raising
the child since child got them here
 Child or parents get special damages for medical expenses, but not both...windfall-- identical damages.

Wrongful Death

When a defendant’s negligence causes a fetus to perish, whether there is a wrongful death cause of action depends on
the local state wrongful death statutes. Must prove negligence for this to be a viable cause of action.

Endresz v. Friedberg (New York)- stillborn twins from car accident with D, D wins.
o NY Wrongful Death Statute- permits survivors to bring COA against wrongdoer in shoes of decedent
 Must have a birth before there is a “decedent.” Legislature are excluding unborn fetuses.
 But if there was one second of life outside utero, then yes COA. quoting Woods v Lancet.

 Parents can bring their own action, but not for unborn children
 P can only recover for physical injury and NIED from miscarriage, not for wrongful life unless
decedent was alive
 Majority of states disagree and uphold a civil claim for the wrongful death of an unborn child
(p. 488 note 5)

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Owners and Occupiers of Land

Three general categories of plaintiffs who sue owners and occupiers of lands: trespassers, licensees, and invitees. An
owner owes different duties to the different categories. Where you are on premises can change the plaintiff’s status.
Whelan v Vannatta

California doesn’t adopt this duty to warn of known dangers to licensees. Rowland v Christian. California breaks down
these categories, and views a land owner as owing a general duty of care.

 Trespassers
o A trespasser is an unauthorized intrusion onto the land of another. Trespassers are owed a duty merely
not to be intentionally or wantonly injured. So even if landowner was negligent, no duty extends to a
trespasser. But courts don’t like this immunity to trespassers approach and are eroding it with
exceptions:
 Discovered or Undiscovered Trespassers
 Known Trespassers- the owner has a higher level of duty to known trespassers; duty to
warn, for example.
 Unknown Trespassers- the land owner owes no duty to an unknown trespasser; no
reason or ability to know he would be there.
 Land owners can be held liable for “willful or wanton” behavior towards the trespasser
 Law frowned on deliberate traps. Liable to robber. Katko v Briney.
 Frequent trespassers on a limited part of the land, owe a duty to them
 Tolerated intruders, can owe a duty. (p. 509)

 Children being attracted to a certain fixture on defendant’s property. Yes Duty. Krayenbuhl.

 Licensees—no economic advantage for the host

o The plaintiff was not there for the economic advantage of the host.
o The owner owes licensees a duty to not be intentionally or wantonly injured and a duty to warn of
known and not-obvious dangers on the premises.
 Known or Unknown not always so obvious. Barmore v Elmore. Mentally ill son. No liability.
o Licensee takes the premises as he finds them, including the dangers therein.

 Invitees—economic advantage to host

o A land owner owes an invitee a duty to not be recklessly or wantonly injured, to warn of knowna dn not-
obvious dangers, and to keep the premises reasonably safe.
o Was the plaintiff being there an economic advantage to the individual defendant?
 Shopper at a store is an invitee. Even if just loitering. Campbell v Weathers
o Owed the highest duty. All plaintiffs want to be considered this [ Barmore tried to argue this]

Joint and Several Liability

 True “Joint Tortfeasors”: Acting in Concert

o They must split liability irrelevant of who actually caused the harm
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 Joint Tortfeasors
o When two defendant’s both act negligently that combined to cause plaintiff’s injury. They are
each fully liable (meaning, the plaintiff can collect from either or both.)
 Apply but-for test to each
 Contribution
o If there are two negligent tortfeasors, one can sue the other for contribution to split the costs.

Defenses to Negligence
The basic defenses to a negligence action are Contributory Negligence / Comparative Negligence, and Assumption of
Risk. Contributory Negligence has mostly been overruled by Comparative Negligence. There are three version of
comparative negligence: Pure, %50, and %49. The essence of CN is carelessness, the essence of AOR is venturesome-
ness.

 Contributory Negligence- if an injured plaintiff fails to act prudently, and this failure was a contributory factor in
the injury, this completely bars recovery. Butterfield v Forrester horse fast hit pole at dusk.
o No longer the accepted rule (except in Alabama, Maryland, North Carolina, Virginia, D.C.)
o Plaintiff must come into court with “clean hands.” Possible explanation for such a draconian rule.
o Burden of Proof - D must show (1) P was negligent, and (2) that P’s negligent conduct was a proximate
cause of the P’s injuries.” Res. 3rd of Torts: Apportionment of Liability § 4
o Last Clear Chance Doctrine: In a Contributory Negligence jurisdiction, if a plaintiff can show that the
defendant had the last clear chance to avoid the injury, then D is fully liable. Davies v Mann.
 A way to mitigate the harshness of the Butterfield Rule.

 Comparative Negligence- three types:

o Pure: P’s recovery/damages are reduced in proportion to his percentage/degree of negligence
 Ex. if P is responsible for 90%, only gets 10% of his damages
o Modified 50%: P recovers in proportion to his degree of negligence only if P’s negligence is “not greater
than” D’s negligence (P’s negligence cannot exceed 50%)
o Modified < 50% (aka 49%): P in proportion to his degree of negligence only if P’s negligence is “not as
great as” D’s negligence (is less than 50%) McIntyre v Balentine

Assumption of Risk essentially says that the plaintiff knew of the risks and proceeded anyways, thereby “assuming the
risks.” AOR can be express of implied. Implied AOR requires: actual knowledge of the risk and voluntary encountering
of the risk.

Further, how AOR jives with comparative negligence can depend on whether the defendant was negligent in creating
the risk, and whether plaintiff’s choice to encounter the risk was reasonable or unreasonable.

 Express Assumption of Risk

o Such as where you sign away liability. Usually enforceable (if narrowly) unless contrary to public policy.
Seignur v National Fitness gym.
 Unenforceable if: 1) when the party protected by the clause intentionally causes harm or
engages in acts of reckless negligence; 2) when the bargaining power of one party to the
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contract is so grossly unequal as to put that party at the mercy of the other’s negligence; and 3)
when the transaction involves the public interest. See Seignur brief for public interest factors.

 Implied Assumption of Risk— two elements: 1) actual knowledge of the risk (subjective) and 2) voluntary chose
to encounter the risk. Rush v Commercial.
o Two types:
 Implied Primary AOR- when an activity presents risks even when the defendant exercises due
care (i.e. skiing, baseball game.) Rule: complete bar to recovery since D wasn’t negligent and P
“assumed the risk.”
 Implied Secondary AOR- when the defendant was negligent and the negligence caused the risk
but P chose to encounter it
 Was the plaintiff’s choice to encounter the risk reasonable or unreasonable?
o If reasonable, then apply comparative negligence and we will allow plaintiff to
recover fully since P wasn’t faulty. Blackburn v Dorta reasonable to rescue baby
o If unreasonable, then this was P’s negligence and apply comparative negligence
to reduce P’s recovery. Blackburn v Dorta

o If there are no other alternatives, then not voluntary Rush v Commercial bathroom hurt no other option
o Classic implied AOR: amusement parks, baseball games, driving instructors, etc.

 Hard Case: a reasonable implied assumption of risk on top of D’s negligence. Outcome: The
plaintiff knowingly and voluntarily assuming the risk relieves the defendant of the duty to
protect the plaintiff from that particular harm. So no liability because there is no duty. This isn’t
even a defense really, it is fatal to establishing negligence.

Strict Liability

To be liable, generally fault must be shown. However, some activities are subject to strict liability. That is, a defendant
can be liable even without a showing of intent or negligence. There are three categories subject to strict liability:
Animals, Abnormally Dangerous Activities, and Products Liability.

 Side Note: If you can prove fault- do that!! Better than proving strict liability. Fault is “hot”; SL is “cold.”

1. Animals
4 Approaches to Trespassing Animals

- Common Law Strict Liability: if an animal you own trespasses onto someone else’s land, you are liable.
● Usually barnyard animals and livestock (ex. McPherson v. James p. 735)
● No SL for cats and dogs (ex. Olson v. Pederson p. 735) (exception: hunting dogs Baker v. Howard
County Hunt p. 735)
● Exception: No strict liability for cattle and other livestock intruding/trespassing on highway
adjacent land when straying from highway during transport (ex. Tillett v. Ward)

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- Fencing Out: if plaintiff fenced his land properly there is strict liability when animals break through the
fence. (ex. Buford v. Houtz p.735) P must protect himself from animals.
- Fencing In: requires the owner of the animal to fence them in or restrain them and is strictly liable if
they do not do so. (ex. Fisel v. Wynns p.736) D must protect others from his animals.
- No Liability w/o Fault: requires proof of negligence (Hastings v. Sauve p. 736)

Animals non-naturally in the environment are different than animals that are naturally in the environment.

- Ones that are not-typical of the environment (“wild animals” or animals “ferae naturae”)
● Influential/similar to non-natural use of environment idea in Rylands v. Fletcher
● Domestic animals that have vicious propensities are subject to SL. Sandy v Bushey
- The sheer impossibility of keeping them from doing harm is what subjects you to strict liability.
● No amount of due care would make a difference

2. Abnormally Dangerous Activities

Such as TNT – Spanno v Perini.

 What is Abnormally Dangerous

o Res. (2nd) § 520
a) High degree of risk of harm to others
b) Likelihood of harm is great
c) Cannot eliminate risk of him by using reasonable care
 Very important. Indiana Harbor could have prevented leakage so no strict liability.
 Also, Miller v Civil Constructors. P was injured from bullet in firearm practice. D wins bec
no strict liability since use of due care would eliminate the risk of harm
d) Uncommon Activity
e) Inappropriate place where activity is located
f) Extent to which its value to community is outweighed by dangerous attributes

 Any non-natural use of the land, that you bring onto your land, and it escapes & damages, D is strictly liable.
o Rylands v. Fletcher. p. 740 – D’s reservoir flowed into P’s nearby mines. P won bec strict liability.

 Guile v. Swan (1822) note p. 751 - man landed in a hot air balloon in the middle of NY. D liable on strict liability.
o all 6 factors of the restatement were present (dangerous activity bec can’t control landing)

 Indiana Harbor v. American Cyanamid p. 750 - D was transporting dangerous chemicals, leakage occurred,
everyone needed to be evacuated, caused a lot of damage. no SL b/c have been prevented with due care.
o If reasonable care can eliminate the risk, courts won’t impose SL

Defenses to Strict Liability; Limitations

Three basic defenses to strict liability: the injury that occurred was insane; the injury occurred bec of something insane,
and the plaintiff voluntarily put himself in harms way. Plaintiff used the land unusually also a factor.

Contributory Negligence is not a defense to strict liability!!! Sandy v Bushey

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 Plaintiff using the land in a weird way lessens strict liability on the defendant. Puts the plaintiff “back on par”
with the defendant. Like Reciprocal Risk Creation. Foster v Preston
 D can only be liable for damages that came from risks that make activity abnormally dangerous in the first place
o Foster v. Preston. p. 758 - D’s blasting frightened P’s mink, causing the mink to eat its babies. No SL.
 Although blasting is usually subject to SL, it is not here because the risks of blasting: debris or
vibrations will damage.

 If an activity is subject to strict liability, but the way in which the injury occurs is the result of an act of g-d, then
defendant is not subject to strict liability.
o Golden v. Amory - D’s hydroelectric plant overflowed water due to a hurricane, ruining P’s land. No SL.

 Assumption of Risk-- If a P voluntarily and knowingly puts himself in the way of such a risk that normally would
subject D to strict liability, then strict liability will not be imposed on D.
o Sandy v. Bushey p. 761 - D knew his horse had vicious propensities.
 Horse was SL bec it had = a history of violent/vicious behavior. D must know of vicious nature.
o Contributory Negligence IS NOT a defense to strict liability.
o Assumption of risk!!!!
 Pg 764, note 3: Bear attacks plaintiff who crawled under cage. The plaintiff brought it on
himself, voluntarily and knowingly taking on the risk. Essentially an assumption of risk. All
jurisdictions agree on this as a defense to strict liability. Will be a viable and complete defense

 Respondeat Superior- Under this doctrine, an employer is liable for the negligent acts or omissions of his
employee which are committed within the scope of their employment (but not independent contractors.)
o Was the act committed within the time and space limits of the agency?
o Was the offense incidental to or of the same general nature as the responsibilities the agent is
authorized to perform?
o Was the agent motivated to any degree to benefit the principal by committing the act?

3. Products Liability

Products Liability usually deals with consumers suing manufacturers for products that they bought not directly from
the manufacturer. For strict products liability, first the legal concept of “privity” had to be rejected. Privity stated
that only the persons who the manufacturer sold the product to directly, or to whom they were in privity with, could
sue the manufacturer (rejected in MacPherson v Buick.)
Once products liability became a thing, a primary vehicle of plaintiff claims were based on product defects. These
defects fell into three main categories: Manufacturing Defects, Design Defects, and Warning Defects.

A plaintiff can sue on multiple theories of defects (Rix v GM, manufacturer + design)

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A manufacturer owes a duty to consumers and “foreseeable users.”

 Evolution of Product Liability prior to Strict Liability

o MacPherson v. Buick- broke down the concept of privity and held that if a product is reasonably
expected to be dangerous if negligently made, a duty of care exists from the manufacturer to the
ultimate consumer.
 powerless plaintiff + thing of danger + privity is no longer a thing = paved the way for strict
products liability.

o Express Warranty- if the manufacturer made representations about a product that turned out be false,
and the buyer is unable to readily realize the misrepresentation, then there is a cause of action available
to the consumer. Baxter v Ford Motor. UCC 2-313.
 This is for innocent misrepresentations; not fraud.

o Implied Warranty- a product carries with it an implied warranty for fitness that it is supposed to serve.
Henningsen v Bloomfield Motors. UCC 2-314.
 Even in the face of liability disclaimers—contrary to public policy; gross inequality of bargaining
power. [ Seigneur v National Fitness also dealt with a contractual liability disclaimer. There the
disclaimer was legit because there were other choices of gyms + not essential public service]
 Presumptively if you sign something you are held to it. Unless strong policy argument
against it.
 Reasons: the manufacturer seduced the powerless plaintiff with advertisements.
 Chipping away the concept of Caveat Emptor- buyer beware.

 Reasons for Strict Products Liability

o The risk of liability will encourage manufacturers to make safer products.
o Sophistication of products makes it hard for consumers to accurately assess the risks, so the
manufacturers should do so.
o Lack of a relationship between manufacturer and consumer means that consumers cannot rely on a
relationship to ensure product quality and they must rely on information provided by the manufacturer.
o Manufacturers aggressively advertise their products to consumers; therefore, the manufacturers
should stand behind their products
o Manufacturers are in the best position to avoid product defects, so they should bore the costs.

 “Spectrum of Favorability” towards the plaintiff (top = most favorable)

o Design Defect—California & New Jersey’s Approach
o California’s Greenman v Yuba Approach
o Res. The Second’s Approach
 Adds unreasonable dangerous burden of proof for the plaintiff
o Design Defect—Res. Third, plaintiff must show a reasonable alternative design. Defendant favorable.
o Design Defect—need negligence for liability. Prentiss v Yale (Michigan)— Very defendant favorable.

Two approaches to Strict Products Liability: Greenman v Yuba and Rix v General Motors.

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 California’s Strict Products Liability Requirements: (Greenman v Yuba)

o the manufacturer “launched” a product into the market;
o knowing that it is to be used without inspection for defects;
o that had a defect;
 Manufacturing, design, or warning defect.
o product was used in way it was meant to be used; and
o that caused an injury. 

 Res. 2nd of Torts, § 402A. Strict Products Liability (accepted in Rix v General Motors)
o (1) One who sells any product in a defective condition + unreasonably dangerous to the consumer is
subject to liability for physical harm thereby caused to the ultimate consumer if
 (a) the seller is engaged in the business of selling such a product, and
 (b) it is expected to and does reach the user or consumer without substantial change in the
condition in which it is sold.
o (2) The rule stated in Subsection (1) applies although
 (a) the seller has exercised all possible care in the preparation and sale of his product, and
 (b) the user or consumer has not bought the product from or entered into any contractual
relation with the seller.

o Comment i: “unreasonably dangerous”—products in which the danger is an inherent characteristic are

not unreasonably dangerous—i.e. whiskey, butter, cigarettes

 Differences between California and Res. Second’s Approach

o California is more plaintiff-friendly since it does not require a showing that the product was
“unreasonable dangerous” (explicitly rejected by California’s Barker v Lull case)

Defective Products, three types:

Res. 3rd Topic 1 - Liability Rules Applicable to Products Generally

 § 1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
o Product seller or manufacturer is liable for selling a defective product that the defect causes an injury.

 § 2 Categories of Product Defect

o A product is defective when, at the time of sale or distribution, it contains a manufacturing, design, or
warning defect. A product has a:
 Manufacturing Defect: (a) a product that went bad, a “lemon,” even though all possible care
was exercised in the preparation and marketing of the product; (this particular product was
defective)
 Design Defect: (b) when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative design + the omission of the
alternative design renders the product not reasonably safe; (every single one of this product line
was defective)

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 Warning Defect: (c) when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the provision of reasonable instructions or warnings and the omission of
the instructions or warnings renders the product not reasonably safe.

H.R. Sections 105, 106, 107, and 109.

o 105- Product Seller Liability
 (A) The product seller (i.e. retailer, not the manufacturer) is only liable if:
 Negligence Standard: the product seller sold this product, failed to exercise reasonable
care, which was the proximate cause of the plaintiff’s harm. OR
o The product seller cannot be said to have failed to exercise due care if there was
no reasonable opportunity to inspect the product to find the defect
 Express Warranty: The product seller gave an express warranty, the product failed to
conform to the express warranty, which caused the plaintiff’s harm. OR
 Intent for Harm: The product seller intentionally did a wrongdoing, which caused the
plaintiff’s harm
 (B) Exceptions: Product seller is considered the manufacturer in terms of liability if:
 the manufacturer is unavailable for service of process in the state in which the harm
occurred. OR
 If the plaintiff won’t be able to sue the manufacturer for whatever reason.

o 106- Intoxication of the Plaintiff as a Defense

 In a products liability case, if the plaintiff was drunk or on drugs, which caused the accident, and
was more than %50 responsible for the accident, then absolutely no liability.

o 107- Misuse or Alteration of the Product

 (A) If the plaintiff misuses or alters the product, which causes the accident, the manufacturer/
product seller’s liability is reduced in proportion to how negligent that was if:
 The alteration or misuse was against the instructions or warnings for the product. OR
 The risk of harm from misuse or alteration of the product should have been known to a
reasonable person who uses that product
 (C) Exceptions: Workplace Injury

o 109- Statute of Repose

 15 years after selling the product, the manufacturer cannot be sued
 Exceptions:
 If the harm was chronic illness, then no 15-years’ time limit
 An express warranty for more than 15-years

I. Manufacturing Defects
o A manufacturing defect is an unintentional deviation from the intended design of the product; a lemon.
o Real strict liability; we look at the product and not the conduct.
o Plaintiff must show that the defect existed at the time it left the manufacturer (Rix v GM)
o Burden of Proof: See California’s Approach and Res. 2 nd Approach.
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 California does not require a showing of “unreasonably dangerous.” Barker v Lull more plaintiff
friendly

II. Design Defects

o Two Different Design Defect Tests:
 Risk/ Utility Test- weighs the risk inherent in the product with the utility of the product and
considers if there are alternative technological and economically feasible design that can
minimize the risk without substantially diminishing the utility.
 Factors: attractiveness and utility of the product to the consumer and public; alternative
available designs; warnings; ability eliminate the risk through due care; likelihood of risk;
the anticipated awareness of the user of the inherent dangers of the product and their
avoid ability and (7) The feasibility of the manufacturer spreading the loss.
 Consumer’s Expectations Test—whether there is a design flaw depends on what
the consumer’s reasonable expectations about the product was. Barker v Lull + Res. 2nd
 The Res. Third endorses the risk/ utility approach + must show a reasonable alternative
design.

o Who Has the Burden of Proof? – BIG DEAL

 Michigan- plaintiff’s burden to show negligence with a risk/ utility analysis; Awesome for
Defendants. Prentiss v Yale.

 California & New Jersey- after plaintiff finds the defect, then the burden shifts to the defendant
who must justify its design + we retroactively impute knowledge of the defect to the defendant.
Awesome for plaintiffs. Barker v Lull- consumer expectation (CA) & O’Brian v Muskin- risk/utility
(NJ).

 Res. Third- plaintiff must show a Reasonable Alternative Design + risk/utility approach

III. Warning Defects

o The manufacturer has a duty to provide reasonable warnings or product instructions of foreseeable risks
that are sufficient in scope and degree. Res. Third
o The manufacturer does not have duty to warn of open & obvious dangers. (Joseph v McGuire p. 812n5)
o If the risk was unknowable with state of the art knowledge, then no liability. Anderson v Owens.
(California)
 Some tension in California’s general plaintiff-friendly products liability approach. But still strict
liability in that once you prove knowability, then strict liability.

Defenses to Strict Products Liability

There are several defenses a defendant has in a products liability suit. Many have to do with the plaintiff’s conduct, such
as comparative negligence, assumption of risk, intoxication, open and obvious danger and misuse or alteration. Others
have to do with the defendant’s conduct, such as state of the art.

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 Comparative Negligence- the plaintiff’s negligence can be applied to reduce the plaintiff’s recovery. (Daly v
General Motors) Majority of states adopted this partial defense.
o Pure- reduce in proportion / %50- P’s neg cannot exceed %50 / %49- P must be less negligent than D.
McIntyre v Balentine is %49.
o Counter: hard to compare defendant’s strict liability with plaintiff’s negligence; apples and oranges.
o Pro: encourages care for plaintiffs + negligent plaintiffs should share the loss caused by their negligence

 Assumption of Risk- viewed as plaintiff’s negligence and is a factor in a comparative negligence equation (similar
to assumption of risk in modern negligent tort.)
o Minority of states treat AOR as a complete defense for D. Depends on the jurisdiction’s approach to
assumption of risk’s integration with comparative negligence in the negligent torts.

 Drunk or Stoned Plaintiff—see H.R. section 106

 Misuse of Product—see H.R. section 107

o A few ways the defendant can use this argument:
 Not a defense; it is saying that there is no products liability action because there was no defect;
the injury was caused by a misuse of the product. Throw a beer bottle at the wall.
 The plaintiff misused the product but there is also a defect—take as a comparative negligence
equation. (H.R. section 107)
 Lastly, a plaintiff may misuse a product in such an unexpected way that she lacks an ordinary
proximate cause argument since it led to a completely unforeseeable type of harm.

 Open and Obvious Defense

o Defendant may argue that the danger that caused the injury was open and obvious (i.e. knives cut.)
 Approach: Can this danger be designed out?
 If yes, then maybe it is a design defect—an important factor in the risk/utility test.
(Perkins v Wilkinson p. 805n7)
 If no, then the “open and obvious” argument can negate plaintiff’s argument failure to
warn argument since there is no requirement to warn about dangers that everyone
knows about. (Joseph v McGuire p. 812n5)
 Is the danger an inherent characteristic of the product? i.e. whiskey, butter, etc. Then not
“unreasonably dangerous” Res 2nd 402a Comment i.

 State-of-the-Art Defense
o State of the Art—defendant says that he did everything he could scientifically available to him.
 O’Brian v Muskin (New Jersey)—a factor, not a full defense by design defects
 By design defects-- complying with state-of-the-art does not provide an absolute defense, as the
burden is on the Defendant to prove that compliance with this justifies placing a product on the
market.
 Other factors: the relative need for the product, or if the product was an essential or a luxury,
might lead to the determination that the risk involved with the product still outweighed its
utility.

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o Jurisdictions are divided on whether the plaintiff must prove it was knowable or whether it is an
affirmative defense that the defendant must prove.

Proving Defects

Plaintiffs may prove a defect using circumstantial evidence, so long as a preponderance of the evidence establishes that
the accident was caused by the defect rather than other possibilities (Friedman v GM). Plaintiff will argue to eliminate
other possible causes of the accident other than the defect. Plaintiffs are typically at an evidentiary disadvantage so
many courts give the benefit of the doubt.

 Plaintiff Must Prove: (Friedman v GM p.819n1)

o The product that injured the plaintiff was made by the defendant
o The product was defective,
o plaintiff was injured as a result of the defect
o That the defect was present at the time of sale and was not introduced at a later time

Res. Third § 3 Circumstantial Evidence Supporting Inference of Product Defect

 It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of
sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
o (a) was of a kind that ordinarily occurs as a result of product defect; and
o (b) was not, in the particular case, solely the result of causes other than product defect existing at the
time of sale or distribution.
 Comments:
o a. History—this section developed a lot from negligence law that recognized an inference of negligence
if the defendant’s negligence is the best explanation for the cause of accident, even if we cannot explain
the exact nature of the defendant’s conduct
o b. “the harm be of a kind that ordinarily occurs as a result of product defects”— This section is meant
to deal with what if the product is lost or destroyed in the accident and therefore direct evidence is
impossible. Then the plaintiff can use this to recover. In other cases, by manufacturing defects it is pretty
easy to make an inference since the products acts in a way it shouldn’t. Note: if the product is lost or
destroyed due to spoliation of a party, maybe a diff story bec of fairness.

Exam- essays- unlimited open book- 4 hours

Impact rule // contributory neg overruled

Don’t go off an long winded explanations that aren’t relevant

If causation isn’t an issue, don’t explain it

Abstract knowledge doesn’t get rewarded

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All points is from is analysis of new set fo facts

Tort law not covered in class but true:

 Insanity in Torts
o Rule: An insane person is liable in tort for damages caused when he or she (a) was capable of
entertaining intent to commit harmful/unlawful act, (b) did in fact entertain that intent, and (c) acted
upon that intent.

 Battery Defense: Self Defense and Defense of Others

o Rule: An action of force (complete defense) is justified by self-defense whenever the circumstances
cause a reasonable person to believe this life is in danger or that he is in danger of receiving great bodily
harm and that it is necessary to use such force for protection.


Words weisberg likes

- “Facts toys”
- Attenuated
- A “lemon” for manufacturing defects
- Contours of the law
- Scienter is a legal term that refers to intent or knowledge of wrongdoing. This means that an offending party has
knowledge of the "wrongness" of an act or event prior to committing it.
- P had not been able to “adduce” – cite as evidence
-

- The legality of alcohol shows that society values its utilities

- The defendant makes money, is best able to spread the costs, depeest pockets…
- Factors are to be weighed but are not determinative, like elements

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