1.

TORT
a. wrongful act, other than a breach of contract that injures another
b. And for which the law imposes civil liability (holds them accountable)
INTENTIONAL TORTS
2. Prima facie for intentional torts (must meet all)
a. Act by Defendant;
i. Volitional movement on the defendant’s part
1. Kealoha tripped and extended arm/hit Kaleo with arm- YES
2. Kealoha has a seizure/hit Kaleo - NO
3. Kealoha pushed Leila into Kaleo- Leila NO; Kealoha YES
b. Intent
i. Established if:
1. Their purpose in acting is to bring about the consequences OR
2. They know of substantial certainty that such consequences will
result.
ii. Incompetency: The fact that a Defendant is mentally incompetent, or is a
minor, does not preclude a finding that they possessed intent to commit
an intentional tort, but in competency may affect whether such intent
actually existed.
iii. Intent is transferable

c. Causation
i. Where the conduct of the defendant is a substantial factor in bringing
about the injury.
1. Usually causation not an issue in intentional torts.
3. Assault
a. An intentional act that causes plaintiff to experience reasonable apprehension of
an immediate harmful or offensive contact
b. Defendant must act with the desire to cause an immediate harmful or offensive
contact or the immediate apprehension of such a contact or know that such a
result is substantially certain to occur
c. Satisfied if the threatened contact would inflict pain or impairment of any body
function or if a reasonable person would regard it as offensive.
4. Battery
a. An intentional act that causes a harmful or offensive contact with the plaintiff or
something closely connected thereto.
b. Defendant must either (1) desire to cause an immediate harmful or offensive
contact; Or (2) know such contact is substantially certain to occur
c. It is sufficient for a battery if defending causes a contact with something close to
the plaintiff; unlike assault plaintiff need not to be aware of the contact.
5. False Imprisonment
 a. An intentional act that causes plaintiff to be confined or restrained to a bounded
area against the plaintiff's will, and the plaintiff knows of the confinement or is
injured thereby.
b. defendant has the requisite intent if he: (1) desires to confine or restrain plaintiff
to a bounded area; or (2) knows that such confinement is virtually certain to
occur.
c. plaintiff may become fined by the use of physical barriers, by failing to release
plaintiff where defendant has a legal duty to do so, or by the invalid assertion of
legal authority.
d. No duration of requirement is required though the duration may affect the amount
of damages.
e. plaintiff is under no duty to resist if defendant uses or makes credible threat to
use physical force and generally, plaintiff must be aware of the confinement or
must suffer actual harm as the result of the confinement.
6. Intentional Infliction of Emotional Distress (IIED)
a. An intentional or reckless act amounting to extreme an outrageous conduct that
causes the plaintiff severe mental distress.
i. Reckless =defendant acts in deliberate disregard of a high degree of
probability that emotional distress will follow.
ii. extreme an outrageous = defendant's conduct is beyond the bounds of
decency --conduct that a civilized society will not tolerate (offensive
language is generally not outrageous).
b. Plaintiff must prove distress suffered was severe.
c. When directed out of third party the defendant is subject to liability if they caused
IIED to (1) an immediate family member where the plaintiff is present at the time
and the defendant was aware of the plaintiff's presence (2) to any other plaintiff
that was present regardless of the relationship.
7. Trespass to land
a. Intentional act that causes physical invasion of plaintiff’s land.
i. Even if the defendant does not realize they have crossed a boundary or
has a good faith belief that his entry is lawful.
ii. Plaintiff must have immediate possession of that land.
8. Trespass to chattel
a. An intentional act by defendant that interferes with plaintiff's chattel, causing
harm.
b. Chattel: tangible personal property or intangible property that has a physical
representation, such as a promissory note, or document in which title to a chattel
are merged.
c. Interference with chattel is actionable if it constitutes dispossession or
intermeddling
i. Dispossession: direct interference with plaintiff's possession; takes chattel
or refuses to return it.
ii. Intermeddling: interference that does not directly affect the plaintiff's
possession (dancing a car or kicking a pet dog)
 9. Conversion
a. An intentional act by defendant that causes destruction of or a serious and
substantial interference with plaintiff's chattel.
i. Mistake is not a defense
b. “Destruction” or “serious and substantial interference”: “the exercise by the
defendant of domination and control” over the chattel.

Defenses and Privileges to intentional torts (POPCANS)

1. Privilege
a. privilege may exist where
i. the person affected by the defendant's conduct consents:
ii. some important personal or public interest will be protected by the
defendant’s conduct/ interest justifies harm
iii. The defendant must act freely in order to perform an essential function
1. Ex: Putting out neighbor’s house fire and you trespass to do so.
2. Consent
a. Plaintiff consented to the act that constituted the tort.
i. consent must be effective
ii. defendant must not exceed the scope of consent
b. consent exists as a matter of law when plaintiff is unable to consent and
emergency action is necessary to prevent death or a reasonable person would
be expected to consent under the circumstances and there is no reason to
believe plaintiff would not consent.
3. Self-defense:
a. They used reasonable force to prevent plaintiff from engaging in an imminent an
unprivileged attack.
i. Degree of force is reasonably necessary to avoid the threatened harm
4. Defense of others
a. defendant is entitled to defend another person from an attack by the plaintiff to
the same extent that that third person would be Lawfully entitled to defend
himself from plaintiff
5. Defense of property
a. Defendant is permitted to use reasonable force to prevent plaintiff from
committing a tort against defendants’ property.
i. defendant must first demand that plaintiff desist the conduct before he
can use force and less it would be futile or dangerous to make such
demand
ii. the amount of force use must be no greater than necessary to prevent the
threatened harm
iii. never permissible to use deadly force to protect one's property
6. Necessity (interference with property). Vincent v. Lake Erie Transport (968-72)
a. Defendant is permitted to injure plaintiff's property if this is reasonably necessary
to avoid of substantially greater harm to the public himself or to his property
 b. If the defendant reasonably but mistakenly believes that his actions are justified
he is privileged to act even if it is subsequently established that there was no
actual necessity.
c. In most jurisdictions defendant will still be liable for any actual damage to the
plaintiff's property but not liable for a technical tort such as trespass
7. Authority
a. Police officer, shopkeepers’ privilege, discipline (parent)
b. A police officer or private citizen is not liable for an arrest made without a warrant
as to breach of the peace that is committed or appears about to be committed in
his presence ex:bar fight
c. Discipline - can use force that is reasonably necessary to maintain discipline.
must consider: nature of misconduct, age, sex, physical condition of plaintiff
discipline, an motivation under which defended acted
Intentional Economic Harm
Intentional misrepresentation
1. Ollerman v O’Rourke Co Inc.
a. House sold with well
b. Materiality = facts to which a reasonable purchaser would attach importance in
determining whether or not to go ahead with a transaction.
c. An intentional misrepresentation by defendant, made with scienter, which is
material and justifiably relied upon by plaintiff and which causes damages to
plaintiff.
i. Must be an assertion of false past or present facts
ii. Misrepresentation can consist of
1. A false affirmative assertion (Hawaiian flag is red/yellow/green)
2. Active concealment (matilda’s dads car)
OR
3. Omission of fact (don’t tell you well is under your home)
iii. Scienter= making a representation knowing it to be false
iv. P must rely on D’s misrepresentation and that reliance must be justified
1. Reliance is justified if a reasonable person would have relied upon
it
2. Factors to consider:
a. The nature of the misrepresentation,
b. the parties,
c. and the relationship of the parties

2. Imperial Ice co. v. Rossier

a. Interference w/ contract
i. Must have a contract that is :
1. In force and effect
2. Legal
AND
3. Not opposed to public policy
 3. Della Penna v. Toyota Motor Sales U.S.A. Inc.
a. Interference w/ Prospective economic advantage
b. Courts should acknowledge that relationships short of a contract have inherent
risks
i. Concurrence: right result wrong reason. The instruction should not
include reference to motive
c. Protects the probable “expectancy interests of future contractual relations of a
part, such as the prospect of obtaining employment or the opportunity to obtain
customers:
i. Proof of the interference
AND
ii. Proof of resulting damage

Protecting Privacy:
4. Present when D unreasonably discloses private facts about P to the public:
a. Disclosure must be highly offensive to a reasonable person and not of legitimate
public concern
b. Private Facts must be disseminated to the public (vs simply communicating to 3rd
person for defamation)
c. Information must be an aspect of P’s life not open to public view and not a matter
of public record.
i. Can recover compensatory damages, including mental distress
unaccompanied by physical injury.
5. Present when D publishes matters that portray P in false light
a. D must communicate the material to a substantial 3 of ppl.
b. Portraying in a false light means attributing to P views he does not hold or
attributing actions to him that he did not take
c. In addition, the false light in which P is places must be such that a reasonable
person would find it highly offensive
i. Can recover compensatory and, sometimes, punitive damages.
6. Present when D unreasonably intrudes into P’s seclusion, including physical intrusion
(web camera in bathroom) & non- physical intrusions (photographing P in backyard from
off property).
a. D’s intrusion must be one that would be highly objectionable to a reasonable
person
b. “seclusion” refers to the right to physical solitude or to the privacy of personal
affairs or concerns (does not include eavesdropping)
i. Can recover compensatory and, sometimes, punitive damages
7. Galella v. Onassis
a. Papafazzo detained by secret service b/c of his conduct towards Onassis and
her children
b. Photographer is not shielded by the 1st amendment from state laws
c. Court modified restraining order
8. Unauthorized use of P’s identity or likeness for D’s commercial advantage
 a. Burden on P to prove he did not consentz
b. Use of “identity or likeness” is present if D uses any object or characteristic
sufficient to identify P
i. Can recover compensatory and, sometimes, punitive damages

Negligence
1. Duty
2. Breach
3. Causation
4. Damages
Emergence of Negligence Law of Accidents
9. P bears burden to establish D’s act was done w/out the exercise due care under
circumstances
10. Significance: Est. that some form of fault, negligent or intentional, must form the basis of
liability. Loss from an unavoidable accident will stay where it falls.
11. Rule: If one is preforming a lawful act and injury occurs that was unavoidable, and D’s
conduct was free from blame= NO action can be supported for any injuries arising
therefrom.

Standard of Care
1. Adams v. Bullock (train, child playing railroad trolley)
a. Rule: A Party will not be negligent if he has taken reasonable precautions to
avoid predictable dangers
b. Significance: A party will not ordinarily be held to be the insurer all all persons
with whom his actions bring him into contact
i. The law recognizes that some accidents are unavoidable and just
because it occurred (mere fact) doesn’t require a finding that one party or
the other has been negligent.
2. Benjamin Cardozo
a. Columbia Law School
b. Judge on NY Court of Appeals (1917-1932)
c. First Jew appointed to Court of Appeals
d. Led court in updating common law due to industrialization.
3. Learned Hand
a. Harvard Law School
b. Judge on federal District Court and Second Circuit Court of Appeals
c. Founding member of American Law institute (put together Restatements)
d. Highly influential judicial philosopher
4. U.S v. Carroll Towing Co.
a. Unattended barge broke loose/sank
b. Rule: There is a duty of care to protect others from harm when the burden of
taking adequate precautions is less than the product of the probability of the
resulting harm and the magnitude of harm
i. Standard of Care determines by an assessment of risk
 1. One should not take unreasonable risks
ii. P = probability of danger
iii. L = gravity of resulting injury (magnitude)
iv. B = burden of taking precautions
1. B < PL
2. If PL exceeds B then the Defendant should be held liable
5. Reasonably Prudent Person ( fictional person courts have created to access Standard
or Care)
a. Creates flexible standard
b. External and objective test
c. Circumstantial and contextual and includes:
i. Foreseeable risk of harm
ii. Gravity of harm
iii. Special Relationships
d. Aspirational
i. Represents general level of moral judgment of what community/ what it
feels ought to ordinarily be done v. what is ordinarily done.
e. Mental Capacity – For purposes of negligence, mentally ill/disabled and
intoxicated individual are assessed w/out such diminished abilities.
f. Physical Ability- RPP is measured with the same physical characteristics as D.
i. EX: Blind walking  knocks into P: Reasonably prudent blind person
g. Children – RPP measured according to what a reasonable child of the same
age, education, intelligence and experience would have done.
i. Children engaging in adult activities treated as adults
1. Ex: 9 yr old takes dads boat  hits P: Reasonably Prudent Adult
h. Emergency Doctrine – Someone confronted with a sudden and unforeseeable
occurrence, because of the shortness of time in which to react, should NOT be
held to the same standard of care as someone confronted with a foreseeable
occurrence.
i. Professionals – (Lawyers, doctors, accountants ect.) are held to a standard of
care based upon custom within their specific industry
i. If professional deviates from customary practice of professionals in good
standing = breached their duty.
ii. If professional complied with that custom = cannot be found to have
breached duty.
6. Bethel V. N.Y. City Transit Authority
a. Wheelchair accessible chair collapses on bus
b. Rule: A common carrier is subject to the same duty of care as any other potential
tortfeasor.

Roles of Judge and the Jury

1. B & O Railroad Co v. Goodman
a. Man killed by train
 b. Rule: a person who fails to exercise reasonable care to avoid accident is not
entitled to recover damages
c. Judge Holmes Pg. 63 If a driver cannot be sure…
i. Recognize that this is usually Q for jury, but nevertheless transformed into
Q of the law because “we are dealing with a standard conduct and when
the standard is clear it should be laid down once for all by the Courts.”
ii. Judges common sense of community in ordinary instances is far better
than average jury
2. Pokora v. Wabash
a. Man killed by train (blocked view)
b. Judge Cardozo:
i. Limits Goodman and concludes that unless reasonable minds could differ
on the point: the standard by which negligence is measured is for jury to
decide.
ii. Requiring Pakora to exit vehicle to look @ tracks (as Goodman did) b/4
proceeding is NOT helpful as train could still come down the track.
c. Typically in cases: P want jury to decide; D want judge to decide
3. Andrews v. United Airlines Inc.
a. Briefcase falls out overhead bin and injures woman
i. Jurisdiction?
b. Language of common carrier:
i. “Owe[s] both a duty of utmost care and the vigilance of a very cautious
person towards [its] passenger.” P.68
ii. United is “not an insurer of its passenger’s safety.” P.68
iii. “[the] degree of care and diligence which [it] must exercise is only such as
can reasonably be exercised consistent with the character and adopted
and the practical operation of [its] business.” P.68
Roles of Custom
1. Trimarco v. Klein
a. Injury from shattered glass in bathroom tub
b. Evidence of custom is simply one way of getting more precise definition of the “B”
element of judge Hand’s formula.
i. Evidence of the safety practices in an industry, recent technological
developments, exchanges of information are relevant to the issue of D’s
burden of adequate protection.
c. Judge Hand’s formulation:
i. The cost of replacement is less than the protentional injury costs and, as
a consequence, custom or not, it was negligent not to replace the glass.
d. A custom can:
i. In cases of noncompliance, be used to inform or est. unreasonable
conduct
ii. In cases of compliance, be used to claim due care.
Role of Statues
1. Martin v. Herzog
 a. Traffic accident (buggy no lights/ car veers across centerline)
b. Rule: Contravention of a statute may, itself, be evidence of negligence in that it
est. that a party fell “short of the standard of diligence to which those who live in
organized society are under a duty to conform.”
i. Coalescing of two wrongs in this instance (omission of lights): negligence
& statutory breach.
ii. Judge Cardozo
1. “A statute designed for the protection of human life is not to be
brushed aside as a form of words, its commands reduced to the
level of cautions, and the duty to obey attenuated into an option to
conform”
2. Telda v. Ellman
a. Pedestrians struck by car from behind/walking opposite side of road
b. Court distinguishes the type of statute:
i. Safety statute (preservation of life, limb, & property) = negligence per se
v.
ii. General code of conduct (rules of road) = common law application
1. No standard of care is fixed by a general code of conduct as it
merely codifies/ supplemental common law or regulates conflicting
rights to promote public convivence.
c. A statue can:
i. In cases of noncompliance, be used to inform or est. reasonable conduct
ii. In cases of statutory compliance, be used to claim due care
1. Compliance is regarded as mere evidence on the issue of whether
D breached its duty of care & does not raise any presumption in
D’s favors
d. Minority Jurisdiction:
i. D’s qualifying violation of a statute raisers a rebuttable presumption (P
wins unless D introduced contrary evidence to overcome presumption)
ii. or as a prima facie evidence that D’s conduct breached the duty to P

e. Majority Jurisdiction:
i. An unexcused violation of a criminal statute conclusively est. D breached
its duty to P
1. The injury caused by D conduct is the type the statute was
intended to prevent
2. P is a member of the statute’s protected class
AND
3. D’s violation of statute is not excused
f. D’s violation of applicable statue excused if compliance with statute:
i. Would have resulted in harm greater than the harm produced by the
violation
OR
ii. Would have been impossible
Proving Negligence with Circumstantial Evidence
1. Negri Stop and Shop Inc.
a. Broken jars of baby food on ground
b. The circumstantial evidence was sufficient to permit the jury to draw the
inference that a slippery condition was created by jars of baby food which had
fallen and broken a sufficient length of time prior to the accident to permit D’s
employees to discover & remedy the condition.
2. Gordon v. American Museum of Natural History
a. Man slips on stairs in front of Museum
b. x of risk must be either:
a. Actual (someone comes up and tells you)
b. Constructive
1. Defect must be visible and apparent
AND
2. It must exist for a sufficient length of time prior to the accident to
permit D’s employees to discover and remedy it.
3. Byrne v. Boadle
a. Barrel falls out of window store and hits P
b. Accident is prima facie evidence of negligence
a. The fact of the falling barrel was prima facie evidence of negligence
b. Referred to as res ipsa loquitur (The thing speaks for itself)
1. A rule of evidence that, in rare instances, permits, but does not
compel, an inference of negligence under the circumstances
(when coupled w/ a showing of immediate precipitating cause)
c. Res Ipsa Loquitur today:
a. In Goodyear tire & Rubber, court stated P must est:
1. Instrumentality of injury under the exclusive control of D
AND
2. Accident is one that would not happen in ordinarily course w/out
negligence.
3. But for the failure of reasonable care by the person in control of
the injury producing object/instrumentality, the accident would not
have occurred.
4. McDougald v. Perry
a. Spare tire of tractor-trailer hits P windshield.
b. On the basis of common experience, and as a matter of general knowledge,
would not occur but for the failure to exercise reasonable care by the person who
had control of the spare tire.
5. Ybarra v. Spangard
a. Surgical partient gets injured shoulder
b. Three conditions of Res ipsa loquitur: p.102
a. The accident must be a kind which ordinarily does not occur in the
absence of someone’s negligence;
 b. It must be caused by an agency or instrumentality w/in the exclusive
control of the D
AND
c. It must not have been due to any voluntary action or contribution on the
part of the P.
1. Shifts burden to D employees to explain their conduct.

6. Medical Malpractice
a. KEY: whether D acted in conformity with common practices of the profession
b. P must prove
a. The relevant standard of care
AND
b. D departed from that standard
c. Sheeley v. Memorial hospital
a. Complications from surgery after delivery of child
1. Expert testimony is essential to est. standard of care in medical
malpractice cases, unless lack of care is so obvious/common
knowledge
d. Matthies v. Mastromonaco
a. Doctors puts P on bed rest w/out recommending surgery
1. There is shared responsibility for choosing among medically
reasonable treatments
a. P should provide doctors w/ necessary info to make
diagnosis & determine course of action
b. Doctors have a duty to evaluate the relevant info and
disclose all courses of treatment that are medically
reasonable under the circumstances
2. KEY: whether physician adequately disclosed info material to a
reasonable patient’s informed decision making
a. Ultimate decision lies w/ Patient
b. Patient must know of all alternatives that physician
recommends and doesn’t recommend
7. Duty Generally: D generally owes no duty to P
a. In order to be a breach there must be a duty owed
b. Harper v. Herman
a. Affirmation obligations to act
b. Man dives into shallow water while a guest on boat
c. The fact that an actor realized or should realize that action on his part is
necessary for another’s aid does not itself impose upon him a duty to take
such action… unless a special relationship exists
8. Farwell v. Keaton
a. Man leaves beat up friend in back of car in driveway.
a. Voluntarily came to aid of P
b. D’s negligence was proximate cause of P’s death
 b. Assumed responsibility
c. Special relationship
9. Randi v. Joint Unified School district
a. Letter of recommendation for shitty teacher
a. Restatement 311:
b. Defendants owed duty not to misrepresent
10. Tarasoff v Regents of univ. of Cali
a. Duty to warn
a. D owes duty of care to all persons who are foreseeably endangered by
his conduct, with respect to all risks which make the conduct
unreasonably dangerous
11. UHR v. East Greenbush
a. School fails to test child for scoliosis
b. Statutory command does not necessarily equal right of private action
Policy bases for invoking no duty
12. Strauss v. Belle
a. Injury after power goes out
b. No liability w/in common area of apartment building where his landlord-but not
he- had a contractual relationship with the utility
13. Reynolds v. Hicks
a. Alcohol to minor at wedding
a. Social host v. Commercial vendor
b. No cause of action for social hosts like there is for vendors
14. Vince v. Wilson
a. Grand-aunt purchases car for unlicensed nephew
b. It is well established that you may be held liable to third parties if you loan your
car for immediate use to someone who is obviously impaired and the bar over
then loses control of the vehicle in during those third parties.
c. in those cases: duty arises out of your negligent failure to control the use of your
property. recruiter comparers
Duties of Landowners and occupiers
15. Two approaches
a. Traditional- Divides entrance on to land into categories
a. dragon the duty of care owed to them is dependent upon the category
into which they are placed
1. Trespasser
a. Generally, landowner owes no duty to trespassers
because they are seen as undeserving an courts would not
allow suit brought by them.
2. Licensees
a. obligation owed is to warn of concealed artificial or natural
dangers on the property KNOWN to the land owner.
b. this does not entitle plaintiff to force defendant to inspect
for dangers
 3. invitees (not equivalent to “socially invited”)
a. may involve taking affirmative steps to discover dangers on
the property that:
i. they know of or should know of
ii. must either remedy risk or warn the invitee of its
existence where the risk is not known or obvious
b. modern (California) - eliminates the categories
a. Applies a general duty of care to all those who come onto your land
c. Carter v. Kinney
a. Man slips on ice at Bible study home
b. Traditional approach is applied and plaintiff is Licensee
c. A social guest is a subclass of licensee that receives a social invitation
but the key motive is not of material benefit
d. Heins v. Webster
a. Premises liability
b. Dad visits daughter at the hospital and sleeps at doorway (santa)
c. Court determines at the invitee-licensee distinction should be abandoned
and the new rule applied in the instant case:
1. duty of reasonable care for all lawful visitors
e. Posecai v. Walmart
a. Woman robbed in Sam's Club parking lot
b. balancing test
1. seeks to address interest of both business proprietors and their
consumers
2. By balancing foreseeability of harm and gravity of risk against
burden of imposing a duty to protect
16. Johnson V. Jamaica hospital
a. child abducted from hospital
b. Rule: the foreseeability that such psychic injuries would result from the injury to
child does not serve to establish a duty running from defendant to plaintiff.
c. Exceptions to general rule of no recovery for emotional distress against third
parties:
a. saying someone died when they actually did not die
b. losing / mishandling a dead body
d. Portee v. Jaffee
a. Bystander recovery
1. death of child in elevator observed by mom
2. NIED requires proof of the following elements:
a. the death or serious physical injury of another caused by
D’s negligence
b. a marital or intimate familial relationship between plaintiff
and the injured person
c. observation of death or injury at the scene of the accident
AND
 d. Resulting severe emotional distress

e. Emerson v. Magendantz
a. woman pregnant after tube tied
b. limited recovery rule:
c. plaintiff may recover the medical expenses of an effective medical
procedure, the medical and hospital cost of the pregnancy, the expense
of subsequent kostof pregnancy, the expense of subsequent sterilization
procedure, loss of wages, and perhaps to it emotional distress
17. Factual Causation
a. But for cause
b. without X, Y would not have occurred
c. Compliance with the spirit of the law requires reasonable certainty that the direct
cause of the injury was one for which the defendant was liable
18. Multiple sufficient causes
a. Substantial factor test
1. in applicability of buffered test in some circumstances
2. with multiple potential tests four causations can be satisfied if the
defendant's conduct was a substantial factor in producing harm
b. Zochowicz v. US
a. Doctor gave incorrect dosage of drug
1. Substantial factor test for causation:
a. but for causation is required first, before substantial factor
assessment
b. supplements but for test an eliminate insignificant closet
c. Matsuyama v. Birnbaum
a. decedent not provided accurate diagnosis or medical service and is not
told of gastric cancer
b. Lost chance test
c. a of plaintiff must prove by a preponderance of evidence that the
physician's negligence caused the plaintiff the likelihood of achieving a
more favorable outcome.
19. Joint & Several Liability
a. Joint tortfeasors- two individuals who either:
a. Act in concert to commit a tort
b. Act independently, but cause a single indivisible tortuous injury
c. Share responsibility for a tort b/c of vicarious liability.
b. Traditional Rule is: joint & several liability, therefore both Defendants are liable
for all harm: P can sue either or both, & collect from either one, or both, but only
up to one full recovery
c. Summers v. Tice
a. Two quail hunters shoot P
b. A requirement that the burden of prod be shifted to D becomes manifest
d. Hynowitz v. Eli Lilly & Co.
 a. DES exposed children Sue drug manufacturer
b. Joint and several liability results from the notion that all defendants have
an understanding of participating in common plan/design to commit
tortuous act
20. Proximate Cause
a. Legal causation
21. Scope of liability
a. Defendant often argues that even a negligent defendant who actually caused the
harm in question should not be held liable for P’s Harm
a. TIP: Assert that the negligence was not the legal cause /proximate cause
of plaintiffs harm because it was:
1. 2 remote, weird, freakish, attenuated, etc.
Unexpected Harm
22. Ben v. Thomas
a. Car accident and subsequential fatal heart attack
a. eggshell plaintiff rule:
1. requires the defendant to take his plaintiff as he finds him, even if
that means that the defendant must compensate the plaintiff for
harm an ordinary person would not have suffered
2. rejects the limit of foreseeability that courts ordinarily require in the
determination of proximate cause
3. defendant is held liable for unusual results of personal injury which
are regarded as unforeseeable
4. once plaintiff establishes that defending cause some injury to the
plaintiff, the rule imposes liability for full extent of those injuries
a. not merely those that were foreseeable to the defendant
23. in Re arbitration of polemis
a. falling plank causes spark that destroys cargo ship
b. KEY: the causing of the spark could not reasonably had been anticipated from
the falling board, but a curd due to the negligence of the defendants servants
dropping the plank which caused the fire
24. Wagon mound
a. oil spill catches fire and Destroys Wharf
b. though a direct result of the defendant's negligence, the injury was an
unforeseeable consequence and thus liability does not attach
Superseding causes
25. doe v. manheimer
a. woman assaulted behind overgrown Bushes
a. illegally cognizable duty Anna breach of that duty, but ultimately ruled, as
a matter of law the jury could not find the defendant's failure to maintain
the overgrowth on his properties was a substantial factor in producing
plaintiffs injuries.
b. Proximate cause - generally a question of fact for the trier of fact
b. Scope of Risk Analysis
 a. Where there is an intervening event must consider this analysis
b. restatement 442B:
1. a negligent defendant, whose conduct creates or increases the
risk of a particular harm and is a substantial factor in causing the
harm, is not relieved from liability by the intervention of another
person , except where the harm is intentionally caused by a third
person an is not within the scope of risk created by the
defendant's conduct
2. where the intervening act is intentional or criminal, the third person
has deliberately assumed control of the situation and therefore all
responsibilities of the consequences of his act is shifted to him
a. breaking the chain of causation
Unexpected victim
26. Palsgraf v. Long Island railroad Co.
a. scale falls on woman after explosion on train tracks
b. majority rule:
a. railroad is not liable because plaintiff's injuries were not a reasonably
foreseeable consequence of any possible negligence by the railroad.
c. minority rule:
a. a duty to one is a duty to all, meaning that if the injury can be traced to
the wrongful act with no intervening events then this is sufficient to
establish liability
Contributory negligence
27. Definition:
a. plaintiffs on negligence may bar plaintiffs recovery
b. Plaintiffs on negligence must be proven by a defendant by a preponderance of
the evidence
c. traditionally if plaintiff is found to be contributory negligent ( even 1%) Then he is
Barred from recovery for defendants otherwise negligent conduct
28. Last Clear Chance Doctrine
a. If the injury to plaintiff could still have been avoided through a subsequent
exercise of due care by defendant, then defendant is said to have had the last
clear chance to avoid harm and plaintiffs contributory fault does not bar recovery
b. Helpless Peril
a. Plaintiff’s negligence has placed him in a position of danger from which
he cannot remove himself
c. inattentive Peril
a. plaintiffs contributory negligence has placed him in a position of danger
from which he could escape if observant enough to recognize his peril
comparative negligence
29. Definition:
a. under modern comparative negligence regime , where plaintiffs own negligence
contributed to her injuries, the total damages caused by defendant may be
apportioned based upon a determination of the relative fault of each party
 a. analysis is the same as contributory negligence
b. pure system
1. apportionment of damages tracts apportionment of fault perfectly
-if defendant is 25% liable, plaintiff can recover 25% of total
damages suffered
2. majority rule
c. partial comparative negligence system
1. damages are apportioned only if defendants responsibility
exceeds plaintiffs responsibility
2. if plaintiff is responsible for more than 50% of his damages, then
he cannot recover
3. where there are two or more defendants the defendants are not
jointly liable:
4. aggregate system:
a. all defendants percentages of fault are combined in
apportioned only if the total is more than 50%
5. individual equality system
a. plaintiff does not recover anything if his responsibility
exceeds any single defendant
30. Fritts v. Mckinne
a. man died in car accident he was either a drunk driver or drunk passenger
b. the interjection of decedents possible negligence in the accident was a matter
unrelated to proper medical procedures and it constituted a substantial error that
was highly Prejudicial
Assumption of risk
31. plaintiff assumes the risk of injury from defendants negligent if plaintiff expressly or
implied consent to undergo the risk created by defendant conduct
a. express assumption of risk :
a. plaintiff is barred from negligence recovery when he has, by written or
oral words expressly relieve the defendant of his obligation to act non
negligently twords the plaintiff
b. waivers
b. implied assumption of risk
a. plaintiff is barred from recovery or recovery is reduced if defendant
establishes:
1. plaintiff had knowledge of and appreciated the nature of the
danger involved
2. plaintiff appreciated the specific danger that injured him
3. an plaintiff voluntarily chose to subject himself to that danger
32. Hanks v. powder Ridge restaurant Corp
a. man injured while snow too big after signing waiver
b. tunkl factors:
a. agreement concerns a business of a type generally thought suitable for
public regulation
 b. party seeking exculpation is engaged in performing a service of great
importance to the public
c. party holds himself out as willing to perform this service for any member
of the public who seeks it
d. as a result of the central nature of this service, the party invoking
exculpation possesses a decisive advantage of bargaining strength
e. in I made it exercising superior bargaining power the party confronts the
public with a standardized adhesion contract of exculpation
f. and as a result of the transaction the person or property of the purchaser
is placed under the control of the seller, subject to the risk of
carelessness by the seller
33. Murphy v. Steeplechase Amusement Co.
a. Husband hurts knee on flopper
b. Judge Cardozo:
a. One who takes part in such a sport accepts the dangers that inhere in it
so far as they are obvious and necessary
34. Davenport v. Cotton Hope
a. Man injured in dark stairwell he knew had no lights
b. Primarily implied assumption of risk:
a. Arises when the P impliedly assumes those risks that are inherent in a
particular activity
c. Secondarily implied assumption of risk:
a. Arises when the P knowingly encounters a risk created by the D
negligence.
35. Statutes of limitations
a. Prescribe a time within which suit must be filled; ps who do not file in time lose
their claim
b. Rationale
a. Serves to encourage more accurate resolution of litigation by avoiding
faded memories and stale evidence
b. Provides repose to those who might be sued by limiting the period in
which they are subject to suit
And
c. To punish those that sleep on their rights
c. Limitation clock starts upon accrual of the claim (usually occurs when victim is
injured)
d. Specified conditions
a. Children
b. Fraudulent concealment
c. Legislature
36. Strict liability
a. defendant is liable for injuring plaintiff whether or not the defendant exercise due
care
b. defendant may be held strictly liable as to two categories of activities
 a. possession of animals
1. analysis varies depending according to the nature of the plaintiffs
injury and whether the animal is wild or domestic
2. defending can be held strictly liable for personal injuries inflicted
by his animal if the animal has known dangerous propensities
3. Domestic animals have known dangerous propensity's only if a
reasonable owner would realize that the animal presented danger
of death or injury
b. abnormally dangerous activities
1. a judge determines whether inactivity is abnormally dangerous by
considering if
a. the activity creates a risk of serious injury as to the plaintiff
his land or chattels
b. the risk cannot be illuminated by the exercise of do care
and
c. The activity is not usually conducted in that area
c. In order for strict liability to apply the harm to plaintiff must have resulted from the
type of danger that justified classifying the animal or activity as dangerous
37. Fletcher v. Rylands
a. mine flooded from burst in neighboring reservoir
b. the person for who his own purposes bring on lands anything like they did do
mischief it escapes Mischief but at his peril

38. Sullivan v. Duhham

a. Dynamite blasts and would fragment into victim
b. Trespass to property The use of land by the proprietor is not therefore an
absolute right , book qualified in limited by the court higher of others to the lawful
possession of their property
c. Trespass to persons: at the safety of the person is more sacred than the safety of
the people
39. Indiana harbor belt railroad company we American
a. Railroad tank car leaking chemical at railroad yard
b. restatement 520
c. factors considered for abnormally dangerous activity
a. the existence of a high degree of risk of some harm to the person land or
chattels of others
b. likelihood that the harm that result be great
c. inability to eliminate the risk by exercise of reasonable care
d. extent to which the activity is not a matter of common uses
e. Inappropriateness of the activity to the place where it is carried on
f. and extent to which its values to the community is outweighed by its
dangerous attributes