Torts Outline

Torts
Intentional Torts
Intentional torts protect a person from having someone interfere with that person’s recognized legal interests
which is a right/privilege the law protects
Intentional Torts to Persons
Battery
- Protects a person’s bodily integrity and prohibits intentionally inflicted harmful/offensive conduct.
- Elements are Act, Intent, Cause In Fact, Harmful/Offensive Contact to Plaintiff, and Harm/Injury
o (1) Act
 An external manifestation of will
 External manifestation: something D does that can be perceived
 of will: act is the result of the will; a choice that can be ties to the mind/will (even if
irrational; Voluntary)
 NOT an act; a muscular movement which is purely reflexive or the convulsive
movements of an epileptic, during sleep, or while the will is otherwise in abeyance
o (2) Intent
 Acted with the purpose of causing harmful/offensive contact
 Acted knowing to a substantial certainty (basically absolute) that harmful/offensive
contact would result
 Intent to contact is a subjective test (what was the D thinking). The intent is to
invade the plaintiff’s interest in bodily integrity/intent to contact. You don’t need
to intend the result/specific harm that came from the contact.
 Single v. Dual Intent
o Single Intent- intent to contact; D had intent (purpose/knowledge) to
make contact. Mental facilities do not matter.
o Dual Intent-MINORITY- intent to contact and appreciated that contact
was harmful/offensive; D had intended to make contact, AND D
appreciated that the contact in question was harmful/offensive
 Minors
o No special treatment given for minors. A child has the requisite intent
even if the child does not appreciate the extend of the consequences. But
because a subjective test is applied, D’s ability to appreciate the cause
and effect is relevant to the intent requirement.
 Diminished mental capacity
o Does not necessarily mater. A mentally ill person has the requisite intent
even if the motivation for the contact is irrational.
o But mentally ill may be unable to appreciate that the contact was
harmful/offensive in a dual intent jurisdiction.
o (3) Cause in fact
 But for the defendant’s act, the plaintiff would not have had occurred harmful/offensive
contact
o (4) Harmful/offensive contact to the plaintiff
 Harmful contact
 Focus is on physical (bodily) harm: physical impairment of the condition of the
body (physical injury, disease, functional impairment, death)
Helen Manuel; Gosman 2020 1
 Included alteration of structure or function of any part of the other’s body to any
extent
 Does not include “minute disturbance of the nerve center” caused by fear,
shock, or other emotions
o Unless this disturbance results in some appreciable illness or has some
other effect upon the physical condition of the body.
 Offensive contact
 Objective inquiry
o Whether it would be offensive to a person with a reasonable sense of
personal dignity
o Some states alter this if the D knows of the P’s particular sensitivity.
 Context matters
o Unwarranted by the social usages prevalent at the time and place (ex-
gender, location, setting, time)
o (5) Harm/injury
 Injury
 Violation of bodily integrity which is legally protected
 The actual injury is the violation of bodily integrity . We have an injury, we do not
need to prove harm.
 Harm
 Just loss or detriment of any kind to a person.
 Presumed!!! can get damages based on the amount of harm. Injury is the unpermitted
contact (because of violation of bodily integrity) But P only gets nominal damages.
 Nominal damages
o Physical or mental harm not necessarily required. Presumption that you
are injured although no harm.
o De minimis non curat lex
 The law does not care about trifles, meaning the court will not
allow recovery even of nominal damages when no real value to
anyone in the case.
 No danger that D will do harm again, no substantial harm suffered
by P, no willful wrongdoing
 Think about socially acceptable conduct putting arm around a woman to prevent her
from falling when a bus suddenly breaks is NOT battery because there is no OFFENSIVE
or HARMFUL contact.
- Case Law; Battery
o Polmatier v. Russ (dead husband estate)
o Waters v. Blackshear (firecracker)
o Nelson v. Carroll (accidental shot/debt)
o Leichtman v. WLW Jacor Communications (non-smoking advocate)(Nominal Damages)
o Andrews v. Peters (dead-leg)(unforeseeable consequences held against tortfeasor)
o White v. Muniz (nursing home/caregiver)
o Taylor v. Barwick (nominal damages; poking with stick while incarcerated)

Assault
- Protects a person’s peace of mind from immediate threatened invasion of bodily integrity, and one’s
interest in being free from the apprehension of imminent harmful/offensive contact. Prohibits
intentional infliction of apprehension of immediate harmful/offensive conduct
- Elements are act, intent, cause in fact of, reasonable apprehension of imminent harmful/offensive
contact, and harm/injury
o (1) Act
 An external manifestation of will (see battery)
o (2) Intent
 Acted with purpose of causing apprehension of imminent harmful/offensive contact
 Acted with knowledge to a substantial certainty that an apprehension of imminent
harmful/offensive contact would result
 RST 3- Need dual intent of not only imminent contact but imminent harmful/offensive
contact (rare)
o (3) Cause in fact of
 But-for D’s action
o (4) Reasonable apprehension of imminent harmful/offensive contact
 Circumstances matter; patterns of conduct can support.
 Imminence
 “almost at once”; has to have physical capacity to act
 focus is on that specific moment in time in which apprehension occurs
 conditional threats do not meet imminence element
 Apprehension
 Less of a threshold than fear; can manifest as fear but don’t have to prove fear;
more similar to anticipation/expectation
 Have to experience the apprehension (blackout, asleep = no proof)
o (5) Harm/Injury
 Presumed!! Can get damages based on the amount of harm
 Legal injury occurs at the moment when there is reasonable apprehension
 Even if no physical, could still win if harm proven
 Personal sensitivities of a person (ex- frightens easily, does not matter) D is liable
 Conduct must go beyond mere words
- Case Law; Assault
o Cullison v. Medley
o Brower v. Ackerly
Transferred Intent
- An expectation to the standard intent rule
o Transfer of intent between torts; Tort to Tort
 Intent to cause one tort but causes another tort satisfies the intent requirement for the
tort committed
o Transfer of intent between people; Person to Person
 Intent to cause tort to one person but actually causes tort to another person satisfies
the intent requirement for the tort committed
o Can be single transfer (just one) or double transfer (both)
- Case Law; Transferred Intent
o Hall v. McBryde
False Imprisonment
- Protects one’s interest from being free from intentional confinement and person’s freedom of
movement, right to “go freely through the world.” Prohibits intentional confinement/restraint in a
bounded area against a person’s will.
- Elements are act, intent, cause in fact, confinement or restraint, and harm/injury
o (1) Act
 External manifestation of will
o (2) Intent
 Acted with purpose of causing confinement
 Acted with knowledge to a substantial certainty that confinement would result
o (3) Cause in fact
 But-for D’s action
o (4) Confinement or Restraint
 If reasonable means of escape, then not confined
 Future threats do not create confinement
o (5) Harm/Injury
 Presumed IF aware of confinement, can get damages based on the amount of harm
 If unaware of confinement, jx split on whether claim can be successful. RST allows but
must prove harm (majority rule). In AR the rule is unclear
- Case law; False Imprisonment
o The Limited Stores Inc. v. Wilson Robinson
o (I think theres another????)
Intentional Infliction of Emotional Distress

- Protects a person’s right to be free from severe emotional distress. Prohibits intentional infliction of
severe emotional distress through outrageous conduct.
- More difficult to succeed on this kind of claim.
- Elements are act, intent (or recklessness), engages in extreme/outrageous conduct, cause in fact of,
severe emotional distress.
o (1) Act
 An external manifestation of the actors will.
o (2) Intent (or Recklessness)
 Intent
 Acted with purpose of causing severe emotional distress
 Acted knowing to a substantial certainty that severe emotional distress would
result
 Recklessness
 Acted with disregard of substantial probability of severe emotional distress
 Conscious disregard of a serious risk of harm associated with the actor’s conduct
 Framed in language of risk- probability and severity
 “Serious Risk”
o Product of probability (likelihood) and consequences (harm)
o Still have to prove severe emotional distress
o (3) Engages in extreme/outrageous conduct
 Objective test

 what a typical community member would think of as extreme/outrageous
conduct. The community member is in a location in which you are living, unless it
is so far off from the norm.
 Totality of circumstances can cause conduct to rise to a level of outrageous behavior
 Actual or apparent authority
 Knowledge of susceptible party (D has to know)
 Can be a single incident but more likely a pattern
 Extreme in degree as to go beyond all possible bounds of decency to be regarded as
atrocious and utterly intolerable in a civilized community
 What is not: mere insults, indignities, threats, annoyances, petty oppressions,
and other trivialities
 Even if plans fall through, P can still bring claim if experience brought forth
mental anguish
 Conduct where one would proclaim “Outrageous!”; shocking to the conscience
and person of anyone observing that behavior
o (5) Severe emotional distress
 NOT PRESUMED
 Objective: whether a reasonable person would have suffered severe emotional distress;
no reasonable man could be expected to endure it
 Not transient or trivial emotional distress
 Subjective: did this P suffer severe emotional distress - significant impairment in his/her
daily life resulting from D’s extreme/outrageous conduct
 Factors: severity and duration
o Just because a normal person would experience it, if this P does not
experience it, then this element is not met.
o Public policy: give people ability to sue but also pull back so not frivolous
claims
 To prove evidence of severity
o Physiological manifestations
o Psychological manifestations
o Sought treatment or was treated
o Duration/intensity
o Other evidence that D’s conduct caused significant impairment of P’s
daily functioning
o Conduct itself tells us something about the objective reasonableness of
the severe emotional distress; how bad the conduct is can be evidentiary
proof of severity but does not lessen the severity standard
 Can be expert testimony or lay persons’ testimony. In most jx, no need for expert
testimony for this element. BUT good strategic decision to hire one anyways to
show emotional distress
- Case Law; IIED
o Zalnis v. Thoroughbred Datsun Car Co.
o Strauss v. Cilek
o Rogers v. Louisville Land Co.
o Dana v. Oak Park Marina

Intentional Torts to Property
Trespass to Land
- Protects a person’s right to exclusive possession of property (“a man’s house is his castle”) and
prohibits intentional invasion of right to exclusive possession of property.
- Elements are act, intent, interference with plaintiff’s exclusive possession of property, cause in fact of,
harm/injury.
o (1) Act
o (2) Intent
 Acted with purpose of causing entry or knowledge to a substantial certainty that entry
would result
 Broad intent standard; can be mistaken about possession and still be liable if
acted with intent to enter the property
 Airspace; property owners own from center of the earth to top of the sky
o (3) Interference with Plaintiff’s exclusive possession property
o (5) Harm/Injury
 PRESUMED
 Injury need not to be foreseeable; liable for any bodily harm caused to possessor during
original entry/trespass
 3rd restatement; limits the scope of liability by considering culpability of conduct (how
bad the act is) and whether the risk of the harm was increased by trespass (responsible
for risk you create
- Case Law; Trespass to Land
o Thomas v. Harrah’s Vicksburg Corp.
o Baker v. Shymkiv
Trespass to Chattel and Conversion

- Chattel: protects a person’s right to exclusive possession of personal property and prohibits intentional
intermeddling with or dispossession of personal property
o (1) Act
o (2) Intent
 Acted with purpose of taking physical control over chattel or cause physical contact to
chattel
 Acted knowing to a substantial certainty that control or contact would result
o (3) Interference with Plaintiff’s exclusive possession of personal property
 Intermeddle
 Bringing about a physical contact with chattel
o Ex; using chattel, hitting/beating chattel, intentionally directing missile
towards chattel (ex- throwing a stone at another’s car)
 Dispossess
 Assuming physical control over chattel in a way that is contrary to possessory
interest

 Ex; taking the chattel without the possessor’s consent or obtaining it by fraud of
duress, barring possessor’s access, destroying the chattel, taking it into legal
custody
o (5) Harm/Injury
 Intermeddle
 DAMAGES REQUIRED- bodily harm to possessor or harm to other legally
protected interests; impairment of chattels condition, quality, or value
 Dispossess
 NOMINAL DAMAGES- injury PRESUMED can of course still get actual damages
- Conversion: protects a person’s right to exclusive possession of personal property; prohibits intentional
serious interference with exclusive possession of personal property
o (1) Act
o (2) Intent
 Acted with purpose of exercising dominion or taking physical control over chattel
 Acted knowing to a substantial certainty that dominion or physical control would result
o (3) Serious Interference with plaintiff’s exclusive possession of personal property
 Serious exercise of dominion or control over chattel
 Based on RST factors of: (these get at severity of act and culpability of actor and damage
done to the other person)
 Extent and duration of the actors exercise of dominion and control
 The actor’s intent to assert a right in fact inconsistent with the other’s right of
control
 The actor’s good faith
 The extent and duration of the resulting interference with the other’s right of
control
 The actor’s good faith
 The extent and duration of the resulting interference with the other’s right of
control
 The harm done to the chattel
 The inconvenience and expense caused to the other
o (5) Harm/Injury
 PRESUMED: but can get damages based on amount of harm
 Traditional remedy is FMV of the property converted (what it would cost to
recreate/remake the product/chattel)
- Difference between interference in the two claims
o Matter of degree
 Conversion is more serious exercise of dominion/control over the chattel
o RST factors
 Think through them and apply to the issue
o Difference to use or possess the chattel matters
 Only planning to use the item will be considered intermeddling and you will have to
show actual injury (impairment of item, deprivation of time, bodily harm)
 Planning to possess an item (even if mistaken) is dispossession and injury is presumed
- Overlap between trespass to chattel and conversion
o Most dispossessions are likely to be conversions unless they are very short and done in good
faith
o Intermeddling through use may seriously interfere with the right of another to control the
chattel so as to be a conversion. The RST gives the example of using someone else’s desk for 6
months
o The measure of damages for trespass to chattels and conversion is different
 Conversion often offers the better remedy.
 RST explanation
 In trespass you may recover for the diminished value of the chattel because of
any damage to it, or for the damage to your interest in its possession or use.
Usually such damages are less than the full value of the chattel itself
 In conversion, the measure of damages is the full FMV of the chattel, at the time
and place of the tort. In effect, the D is required to buy the chattel at a forced
judicial sale.
- Case Law; Trespass to Chattel/Conversion
o Koepnick v. Sears Roebuck & Co.
o United States v. Arora
Nuisance
Private Nuisance
- (1) Act
o External manifestation of the will
- (2) Intent
o Acted with purpose of causing interference/invasion
o Acted knowing to a substantial certainty that interference/invasion would result
- (3) Unreasonable interference with private use and enjoyment of land: [two tests]
o The gravity of harm outweighs the utility of the actor’s conduct
 Gravity of harm factors (P’s set of issues): extent to which harm involved, character of
harm involved, social value that the law attaches to the type of use and enjoyment
invaded, the suitability of the particular use or enjoyment invaded the character of the
locality; and the burden on the person harmed by avoiding the harm
 Utility of conduct (D’s side): social value that the law attaches to the primary purpose of
the conduct, suitability of the conduct to the character of the locality, and
impracticability of preventing/avoiding the invasion
o The harm caused by the conduct is serious and the financial burden of compensatory for this
and similar harm to others would not make the continuation of the conduct not feasible (i.e.
serious harm and we cannot compensate to these P’s while continuing the control)
- (4) Cause in fact of:
- (5) Significant harm/injury
o NOT PRESUMED
- To Note;
o P must be a person with an affected property right or privilege. Also can bring claim as one of
negligence, recklessness, or strict liability
o Who can bring a private nuisance claim?
 A person who has a property right or privilege with respect to the use and enjoyment of
the land affected including:
 Possessors of the land (such as who own in fee simple absolute, also family
members that occupy the land)
 Owners of easements and profits in the land, and
 Owners of nonpossessory estates in the land that are detrimentally affected by
interferences with its use/enjoyment (such as landlords)
- Case Law; Private Nuisane
o Petsey v. Cushman
Public Nuisance
- (1) Act
o External manifestation of the will
- (2) Intent
o Acted with purpose of causing interference/invasion
o Acted knowing to a substantial certainty that interference/invasion would result
- (3) Unreasonable interference with a right common to the general public:
o 2(a) [courts focus on this one mainly] whether the conduct involves a significant interference
with the public health, the public safety, the public peace, the public comfort or the public
convenience, or
 Whether the conduct is proscribed by a statute, ordinance or administrative regulation,
 Whether the conduct is of a continuing nature or has produced a permanent or
longlasting effect, and, the actor knows or has reason to know, has a significant effect
upon the public right
 Note: Don’t need unlawful behavior to have a public nuisance
- (4) Cause in fact of
- (5) Significant of harm/injury
o NOT PRESUMED (for damage claim)
- To Note;
- P must be a government entity or one who can plead special injury (i.e. must have standing meaning
proper P)
- Also can bring a claim as one of negligence, recklessness, or strict liability
- Who can bring a public nuisance claim?
- In order to recover damages in an individual action for a public nuisance, one must have suffered harm
of a kind different from that suffered by other members of the public exercising the right common to
the general public that was the subject of interference
o Special damages
 Private citizen can bring public nuisance when damage was “different in kind or quality
from that suffered by the general public”
 In order to maintain a proceeding to enjoin to abate (prevent lawsuit from moving
forward) a public nuisance, one must
 Have the right to recover damages (special injury) or
 Have authority as a public official/agency to represent the state or a political
subdivision in the matter or
 Have standing to sue as a representative of the general public, as a citizen in a
citizen’s action or as a member of a class in a class action
- Case Law; Public Nuisance
- Get this from book

Defenses
Affirmative Defenses
- Burden is on the defendant to show it tort was necessary. If burden is met, the plaintiff cannot recover
Consent
- Willingness in fact that an act or an invasion of an interest shall take place
- Types of Consent
o Express Consent
 Manifested directly to the other by words or acts that are intended to indicate that it
exists
o Implied (Apparent) Consent
 Words or conduct that are reasonable understood by another to be intended as consent
- Characteristics of Consent
o (1) Knowing
 Must have capacity to consent (drugged= no capacity)
 Exception for emergencies where consent is presumed
o (2) Voluntary
 Cannot be under duress
o (3) Informed
 Cannot be induced to consent by substantial mistake concerning nature and quality of
invasion intended
 Cannot be induced to consent when another conceals important facts or fraudulently
misrepresent it
 RST says need both for consent to be valid (limits ability to argue you were uninformed)
but some courts only require one
Defense of Self, Others, and Property

- Privileges
o Justify the fact that a person committed a tort; Asserted as an affirmative defense
- Two primary issues:
o (1) The reasonableness of the belief of the need for the defense, AND
 Objective and subjective test (applies to self and others)
 Actor must actually believe there is a need for the defense
 A reasonable person in the actor’s position (one of “ordinary firmness and courage)
believes there is a need for the defense
 Attack must be imminent:
 Cannot assert privilege for past attacks (retaliation) or future threats (may be able to
leave or take other response)
 Not imminent: walking away
 Facts must indicate an immediate risk/threat of serious bodily harm - a moment in time
threat.
 To determine if reasonable: based on facts/context; apply 6 factors
o (2) The extent of force used in the defense (proportionality)
 Two factors: the interest protected (human life or property) and the injury/harm
threatened by the other
- Human life
o May use deadly force to prevent serious bodily harm
o Serious bodily harm is harm which creates a substantial risk of fatal consequences or
permanent/protracted loss of function of important body part
o May use moderate or reasonable force to prevent non-serious bodily harm
- Property
o May not use deadly force to prevent harm, only moderate force
o To determine if response proportional to the attack: based on facts/contexts; apply 6 factors
- Six factors:
1. Character and reputation of the attacker
2. The belligerence of the attacker
3. Differences in size and strength of the parties
4. Whether there was an overt act by the attacker
5. Whether serious bodily harm was threatened
6. Whether a peaceful retreat was possible
- Majority approach
o No duty to retreat
- Normally not allowed to use a gun in response to hands (but can be an exception)
- Whether mistake was reasonable or unreasonable?
o Reasonable: does not negate self defense
o Unreasonable: negates use of self defense
Negligence
- No intent, no subjective determination of what P was thinking

o Duty: Duty or limited due to act in accordance with the applicable standard of care/conduct
o Breach of duty: Violation of applicable standard of care/conduct
o Cause in fact: of [injury]
o Proximate cause: of [the injury]
o Actual injury: Injury not presumed, must have actual harm/damages
- (1) Duty
o General test includes 3 factors: The relationship between the parties; The reasonable
foreseeability of harm to the person injured OR Public policy considerations
 Note: none of these factors are controlling/determinative. No special duty rule applies
to facts then assume a general duty exists and use these factors.
 Decisionmaker: question of law for the court to decide. But the jury decides questions
of fact that are needed to make that determination
o Special Duty Rules: courts determine as a matter of law that a person owes no duty or a limited
duty
 By circumstances: Duties owed by land possessor to people on their premises (premises
liability); Duties owed to others to aid/help/rescue or to protect them from third
parties; Duty owed by the tortfeasor to plaintiff’s rescuers
 By harm: emotional distress, economic loss, wrongful birth/conception/life
 By nature of risk: primary assumption of risk doctrine
o Premises Liability
 Circumstances: P-entrant is injured by a dangerous condition on the D-land possessor’s
land

 Legal issue: whether land possessor has a duty to warn of or protect the P from the
dangerous condition
 Traditional test: status of P injured on the land determines the duty
 3 statuses: trespasser, licensee, invitee
 Duties (or Lack Thereof) Owed by Landowners to Trespassers, Licensees, and Invitees
 Case: Ryals v US Steel Corp (status – criminal trespass – switch rack)
o Issue: when does the landowner owe a duty to trespassers who enter
land to commit a crime?
o Applicable rule for trespassers: L is liable for recklessly or wantonly
(conscious disregard of dangerous conditions) injuring a trespasser or for
intentional torts
o Trespassers divided in two classes: mere trespassers and criminal
trespassers
 Trespasser: a person who enters or remains upon land in the possession of another
without a privilege to do so created by the possessor’s consent or otherwise
 General CL Rule- No (negligence based) duty: land possessor does not have a
duty to warn a trespasser about or protect a trespasser from dangerous
conditions on the land
o But a land possessor is liable for recklessly or wantonly injuring a
trespasser or for committing an intentional tort [unless court subdivides
still further like in Ryals]
o Policy
 Increased protection for landowners. If you committed a crime,
then you are responsible for your own risks you undertake.
Opposition: Landowner not innocent (wanton). Protect freedom
of person’s property and not have to worry about landowner’s
being concerned about people coming on their property when
they shouldn’t’ anyways
 Economic argument- unreasonable to protect when you don’t
even know what could cause harm
o Exception
 A duty exists when trespassers are discovered, frequent, or
tolerated and land possessor is engaged in active conduct
(engaged in activities or there is an artificial condition on the land)
[reasonable care]
 RST 2 Rule for Trespasser: land possessor does not have a negligence-based duty to
trespassers to exercise reasonable care to put the land in a condition reasonably safe for
their reception or to carry on his activities so as not to endanger them.
 Attractive Nuisance
 Traditional CL Rule: a possessor of land has a negligence based duty to child
trespassers that are attracted onto land by an “artificial condition,” such as
structures
 Policy
o Responded to incidents of children being attracted to unlocked railroad
turntables
 Exceptions

o “obvious dangers”- swimming pools, ponds, and other bodies of water; or
train trestles (but conflicts over irrigation ditches)
o Policy
 Children will not be aware of dangers of artificial conditions. It is
better to protect children’s safety than to allow a landowner to
use property as sees fit. We should let children be children.
 RST 2 Rule on Attractive Nuisance: Land possessor has a negligence-based duty
to trespassing children to exercise reasonable care to eliminate danger of an
artificial condition or otherwise protect them when
o (1) the possessor knows or has reason to know that children are likely to
trespass in the area, and that there is an artificial condition; and
o (2) the possessor realizes or should realize the condition will involve an
unreasonable risk of death or serious bodily injury to such children and
o (3) the children because of their youth do not (a) discover the condition
or (b) realize the risk involved in intermeddling with it or an incoming
within the area made dangerous by it; and
o (4) the utility to the possessor of maintaining the condition and the
burden of eliminating the danger are slight as compares with the risk to
children involved.
 Statutory Approaches
 Limit liability of land possessors to trespasser to intentional torts and preserve
AND (KY)
 Limits liability of land possessor to licensee or trespasser to intentional torts or
willful/wanton disregard of others. No AND exception, but interpreted the
statute to allow for the doctrine (DE)
o Premises Liability of Licensee
 A person who is privileged to enter or remain on land only by virtue of the possessor’s
consent
 Includes person whose presence on land is solely for their own purposes and the
privilege of entering is a mere favor; members of the possessor’s household, and social
guests.
 General CL Rule: Limited (Negligence-Based) Duty - land possessor has negligence-based
duty to warn a licensee about or protect a licensee from dangerous conditions on the
land that (a) the possessor knows about and (b) the licensee does not know about
 A Duty Also Exists when land possessor engages in activities (active conduct that
is dangerous) on land (in some states)
 NOTE: need a dangerous condition to start with at the front end in order to
trigger duty. P’s own actions cannot create the dangerous condition. The
dangerous condition must already be there which the L knows of and the
licensee does not know of
o Premises Liability of an Invitee (Business/Public)
 Public Invitee
 A person who is invited as a member of the public for a purpose for which the
land is held open to the public
 Business Invitee

 A person who is invited for the purpose connected with business dealings with
the land possessor. Can be formal or informal (like walking into a store to buy
something)
 CL Rule: land possessor has a negligence-based duty to warn an invitee about or protect
an invitee from dangerous conditions on the land that the possessor knows or should
know about after reasonable inspection.
 Think of mutual advantage to both parties
 Case – Richardson v Commodore (playing pool at bar)
 Classification: business invitee
 Issue: duty owed? Whether there should have been an inspection i.e. risks L
should know about. Those risks includes risks discovered by an inspection
 Facts: D claiming did not actually know but..
o Imputed knowledge argument: installed something therefore knew [but
doesn’t work bc installment not necessarily why danger occurred]
o Failure to inspect argument: discoverability and burden (economic)
 What matters is that the condition was discoverable. Not just that inspection
could have helped.
 Policy:
 Limiting liability to licensee bc relationship
 Let people invite others over without necessarily imposing the reasonable
person standard
 Protect L’s more in the context of friends
 When you hold yourself out to public, you take on responsibility to act
reasonably
 Examples:
 Problem pg 513: status is a business invite. Standard of care is reasonably
protect against dangerous conditions. Consider: risk of injury vs burden of
precaution
 Statutory approaches: constrain duty; abandon knowledge requirement; social
guests treated as invitees
 Door to door sales person or church goer is a licensee.
 Holding out as a business creates a business invitee.
 Touring a museum or touring a home for specific club is a public invitee.
 Case – Valence v. Vi-Doug – slip n fall case by wind
 Classification: business invitee therefore duty but an exception: open and
obvious
 A negligence based duty to invitee (or licensee) does not exists when the danger
is Open and obvious: people will notice so no need to warn or protect
o Can be not natural
o Natural accumulations: weather (snow, ice, wind)
o Can be the same thing i.e. natural accumulation is open and obvious
 Policy:
o P’s don’t need warning or protection because aware.
o Too expensive to protect against this kind of danger
o Limited to natural because could incentives people to make other risks
more open and obvious to evade liability

 Exception to the exception: when the D does something to create or aggravate
the naturally existing condition i.e. intensified the risk
 Constructive notice theory: infer from the facts that business owner knew of
o Black ice: not open and obvious. But should not impose on L who did not
create it. Unless actually knew about it (notice)
 Modern Approach to Premises Liability
 Abolish Distinction Between Licensees and Invitees: Land possessor owes all
legal entrants a duty of exercising reasonable care. Treat trespassers the same as
before
 Abolish All Distinctions: Land possessor owes all entrants a duty of exercising
reasonable care
o §R (Third) test, only have a negligence-based duty to flagrant trespassers
if helpless or unable to protect themselves
 Policy:
o Morally wrong to treat people different in these different situation. Life
should not be valued any less based on status
o More landowners so worry about jury irrelevant now
o Doesn’t provide much predictability
o L’s nor ensures of safety. Just reasonableness
 Case- Nelson v. Freeland: Abolishes distinction between licensee and invitee
therefore L’s reasonable care applies in both situations. Retains distinctions for
trespassers. Because L can’t expect them so can’t expect harm; burden would be
too high.
 EXAM: Majority is still the traditional test. Minority is to abolish the distinction. If
on the fence, use policy rules.
 Case - Foster v Costco Wholesale Corp: how to apply open and obvious
exception under the modern approach?
o Question of fact as to whether open and obvious; the open and obvious
nature of the condition is part of assessing whether reasonable care was
employed by the D and is not an exception to liability
o A reasonable jury could find that defendant breached its duty even if risk
is open and obvious; may also take into account in considering the
plaintiff’s comparative negligence
o Takeaway: open and obvious doesn’t make much sense, just apply
reasonable care
 §R 2 : Open and Obvious
nd
o (1) A possessor of land is not liable to his invitees for physical harm
caused to them by any activity or condition on the land whose danger is
known or obvious to them, unless the possessor should anticipate the
harm despite such knowledge or obviousness.
o Exception – Distraction. Comment (f): “Such reason to expect harm to the
visitor from known or obvious dangers may arise, for example, where the
possessor has reason to expect that the invitee's attention may be
distracted, so that he will not discover what is obvious, or will forget what
he has discovered, or fail to protect himself against it.”
 §R 3 Approach: Section 53, Subject to §52, a land possessor owes a duty of
rd
reasonable care to entrants on the land with regard to:

o (a) conduct by the land possessor that creates risks to entrants on the
land;
o (b) artificial conditions on the land that pose risks to entrants on the land;
o (c) natural conditions on the land that pose risks to entrants on the land;
and
o (d) other risks to entrants on land when any of the affirmative duties
provided in Ch 7 is applicable .
o Section 52:
 (a) The only duty a land possessor owes to flagrant trespassers is
the duty not to act in an intentional, willful, or wanton manner to
cause physical harm.
 (b) Notwithstanding Subsection (a), a land possessor has a duty to
flagrant trespassers to exercise reasonable care if the trespasser
reasonably appears to be imperiled and
 (1) helpless; or
 (2) unable to protect him-or herself.
 Statutory Response to Modern Approach: carve out exceptions to negligence-
based duty for landowners who allow others on land for recreational use for no
charge, such as hunting (almost all states) or for some types of criminal
trespassers (California)
o Aid/Rescue: the General Rule is there is no duty to aid, rescue, or protect another person when
the person is in peril for reasons other than the conduct of the actor, even though the actor is
in a position to help i.e. no requirement to affirmatively act to help others. Even if someone has
a specific skill, not liable for failing to help
 Policy:
 Distinction between legal and moral obligation i.e. between failure to act and
how you are supposed to act when you act
 We don’t want the law to be in the business of handing out $$ based on their
view of moral behavior
 Preserves one’s individual choices
 Expansive # of lawsuits if this duty existed
 Danger to one inserting themselves
 Other remedies to these kinds of problems
 Exceptions:
 Duty based on Special relationship between V & D: when there is a special
relationship between P and D, the D owes the P a duty of reasonable care to aid
and protect
o Tests for special relationship: weighs several factors involving the nature
of the relationship and the societal interests in recognizing or not
recognizing the special relationship
o Entrustment: Traditionally grounded in whether person entrusts another
with control, thus losing ability to protect himself
 Policy: if person gives up control over safety to another there
should be a duty. And it is more practical because it is a narrower
group of D’s than the public at large
 Recognized special relationships: common carrier-passenger,
innkeeper-guest, employer-ee, L-T, invitor-ee
o CL: when voluntarily aid or protect V must exercise reasonable care and
cannot discontinue if it would put V in a worse position
 Case – Dykema v Gus Macker Enterprises, Inc
 Issue: did D owe a duty to P to protect him because of a special relationship?
 Asserted breach: failure to worn of a thunderstorm (bball tourney)
 Decision: No recognized relationship based on invitor-ee bc P was not on land of
buz and did not have to pay.
o No other reason to find special relationship when P did not entrust
himself to control of protection of D and could see weather like everyone
else
 Case – Lundy v Adamar of N
 Issue: duty to P to aid? If so, applicable standard?
 Decision: Yes, duty because relationship of invitor-ee. But casino did not
voluntarily assume a different duty by having equipment. Good Samaritan Act
does not create an additional duty beyond the pre-existing one
o Standard is to summon aid and to
 Good Samaritan Statute
 Purpose: to change CL duty of reasonable care
 Change in liability: remove all liability (AL); remove negligence based duty but
allow for other types of tort liability (AR); or retain language “in the exercise of
reasonable care” (MS)
 Protected Actors: those medically trained or trained in emergency care (AL);
anyone (MS); or protect anyone but impose additional requirements for non-
health care professionals (AR)
 Other conditions: applies to those who act “in good faith” (all three above
states); requires the care by professionals to be free (AL, AR)
 Statutes Mandating Assistance:
 Purpose: reject common law no-duty rule by providing statutory mandate and
remedy; and provide for liability protection like Good Samaritan statutes
 Application: person at the scene of the emergency (MN, RI); person who has
knowledge (VT, WI
 Mandate: require “reasonable” assistance unless some danger to the assister;
Wisconsin requires either summoning of assistance or providing direct assistance
 Penalties: fines or imprisonment (30 days in WI and 6 months in RI)
 NOTE that these statutes don’t create a negligence-based duty in tort on their
face; Could try to use negligence per se, but might encounter difficulties such as
whether the class of persons designed to be protected is specific enough
 EXAM: Analysis, special relationship? No then entrustment?
 Obligations to Rescuers
 Case – McCoy v American Suzuki
o Issue: does the D manufacturer owe a duty under the rescue doctrine to
the P? Was the tortious conduct the PC of the P’s harm?
o Duty decision: D was negligent to person rescued/negligence caused
peril or appearance of peril; peril/appearance of peril was imminent;
rescuer acted as a reasonably prudent person would in concluding that
peril existed and in effectuating the rescue

o Holding: reasonable jury could find that the product manufacturer owes
a duty to the P under the rescue doctrine. PC is a required element and a
reasonably jury could find that here
 Rescue Doctrine – Summary Slide
 General rule: a negligence based duty exists; an actor has a duty to rescuer when
person rescued is in imminent peril of the conduct of actor
o Actor can be the person who is being rescued i.e. can be two-party or
three-party
 Basis of duty: “danger invites rescue”; it is reasonably foreseeable that there will
be a rescuer (even though rescuer does not have a duty to rescue) and that the
rescuer could be harmed
 Exception: Firefigher’s Rule – no negligience based duty; actor does not have a
duty to public safety officers if officer is harmed in responding to actor’s
negligent conduct [generally applies to police officers and firefighters]
o Exception: negligence based duty imposed under rescue doctrine if
 Routine situations, such as inspections of a negligent D’s
premises
 Dangers that are different from those typical of officers’
work, such as when negligent D conceals a danger or lies
about it
o Policy:
 It is their job to put themselves in the danger
 Double payment i.e. already being paid via taxes
 Growth of litigation
 Think: “contractor for repairs”
o NOTE: only applies to professionals; not to volunteers
o Case – Moody v Delta Western – Firefighter’s Rule
o Third Parties – Social Host Case – Graff v Beard (intoxicating guests-social host)
 Duty to Protect – Third Parties: no negligence based duty; actor has no duty to control
conduct of third party so as to prevent him/her from causing harm to another
 Provision of alcohol: majority CL rule is social host owes no duty to victim of
intoxicated guest
 Statutory exceptions:
o Willfully and knowingly providing alcohol to visibly intoxicated persons
o Dram shop acts impose liability on those licensed to sell alcohol
 Exception:
o Special relationship between actor and the third person which imposes a
duty upon the actor to control the third person’s conduct (employer-ee,
parent-child, and health professionals)
o Special relationship exists between the actor and the V which gives a
right to protection
o Third Parties - Health Care Professionals
 Case - Merich v Philadelphia Center for Human Development (special relationship:
therapist-client)
 Issues: mental health professional have a duty to protect the V (by warning P of
threats)? If so, breach?

 Duty decision: limited duty to exercise reasonable care to protect another by a
warning
 Breach decision: because of concerns about confidentiality, standard of conduct
is to provide least expansive warning under circumstances. Here, no breach bc
warning was sufficient.
 Need: communicated threat; that is specific and immediate; that is serious
bodily harm; that is to a specific person; + physician determination
 Case – Bradshaw v Daniel (dr-patient: Rocky Mtn Spotted Fever)
 Issue: physician have a duty to protect P (by warning the P of risk to contracting
same disease)?
 Duty decision: a duty exists to identifiable third persons in the patient’s
immediate family to protect them by warning them of risks of exposure to
source of disease
o “identifiable victims”: include those living in the house, likely family, or
those in a close relationship (gf but not likely housekeeper but maybe)
Types of Harm as a limitation on duty
o Negligent Infliction of Emotional Distress
 Case – Robb v Pennsylvania Railroad Co.
 Issue: Does the D railroad have a duty to the P in negligence when P cannot
show a physical impact?
 Decision: The state adopts the zone of danger rule instead of the impact rule,
thus allowing the case to go to the jury. Includes a requirement of “physical
consequences,” that is, a physical manifestation of the emotional distress (vomit
rule)
 General Rule: no duty to plaintiff when injury is only mental or emotional distress
 Exceptions – Impact Rule (small minority): D has a negligence-based duty when
the tortious conduct causes a contemporaneous physical impact (there is a
“touching”)
o Can be combined with requirement that have physical manifestations of
emotional distress
o Any degree of impact, however slight: slight bump against seat, dust in
eyes, inhalation of smoke, jostling in car
 Exception - Zone of Danger (majority and Restatement (Third)): D has a
negligence-based duty when the plaintiff is in the immediate area of physical
danger from the defendant’s tortious conduct
o Can be combined with requirement that have physical manifestations of
emotional distress
 NOTE that courts have recognized other exceptions on an ad hoc basis, such as
mishandling of corpses, miscommunicating the death of a loved one, or
contaminating food
o Sometimes these exceptions are based on a contract theory of an implied
duty to protect emotional well being
 NOTE also that Arkansas does not recognize an independent tort for negligent
infliction of emotional distress, but does appear to have used a variation of the
impact rule
 James v Lieb – Bystander Rule – NOT a reflection of the current law

 Issue: Does D have a duty when P was not in the zone of danger but witnessed
the death of his sister?
 Decision: The state adopts a variation of the bystander rule (Dillon test)
o Court extends to intimate familial relationships (e.g., aunts/uncles) and
shocks closely following the heels of the accident; does not require
physical manifestation of emotional distress
o But limits to cases of death or serious injury to victim
 NIED: Bystander Rule
 Bystander Case: tortious conduct harms someone else, causing emotional
distress to plaintiff
 Legal Rule: D has a negligence-based duty to a bystander plaintiff when the harm
to the plaintiff is foreseeable applying three factors (sometimes considered
requirements)
 Factors:
o Whether P is near the scene of the accident;
o whether P shock resulted from sensory and contemporaneous
observance of the accident;
o and closeness of relationship between plaintiff and victim
o NOTE: Courts also sometimes require a physical manifestation of the
emotional distress
 Case – Grotts v Zahner
 Addresses the specific factor of the relationship of the bystander rule. Limits
duty to bystander P’s for harm to family members.
 Decision: there is no duty to bystander plaintiffs for harm to non-family
members
o Note that immediate family members have the requisite closeness of
relationship as a matter of law, but that the jury would need to
determine as a matter of fact whether the relationship was sufficiently
close for other family members
o Economic Loss Doctrine
 Case - Madison Ave v Finlandia Center
 Issue: Do the D’s have a duty to the P when the tortious conduct caused a pure
economic loss?
 Decision: There is no duty to P because there is no principled basis to determine
whose financial losses should be compensated, leading to indeterminate liability
o Distinguishes People Express Airlines, which held that there is a duty to
particularly foreseeable plaintiffs comprising an identifiable class with
respect to whom a defendant knows or has reason to know are likely to
suffer such damages from its conduct
 Legal Issue: whether defendant has a duty to plaintiff when injury is only economic loss
(that is, cash)
 NOTE this does not apply to cases where economic loss flows from property
damage or physical injury
 Legal Rules:
 No duty (majority rule)
 A duty exists only if the plaintiff is particularly foreseeable (minority rule)

Recognized Exceptions: Contract-based actions, Special relationships, such as
attorney-client, or where attorney’s conduct causes monetary loss, Negligent
misrepresentation, Public nuisance actions based on the impact to a public right
 NOTE: Also, remember this doctrine only applies to negligence, so wouldn’t be
an issue for intentional torts, like fraudulent misrepresentation
o Wrongful Conception, Life, and Birth
 Case – Greco v. US
 Issue: Do the doctors have a duty to the mother (or, does the state recognize a
wrongful birth claim)? If so, what are the compensable damages?
o Do the doctors have a duty to the child in negligence (or, does the state
recognize a wrongful life claim)?
 Decision: The doctors have a duty to the mother (recognizing a wrongful birth
claim); mother can recover extraordinary medical and custodial expenses and
emotional distress damages; no “offset” rule to limit expenses or emotional
distress damages.
o The doctors do not have a duty to the child (refusing to recognize a
wrongful life claim)
 Wrongful Pregnancy/Conception Summary Slide
 Claim: Brought by one or both parents (courts don’t generally distinguish)
o Medical malpractice in female or male procedure that should have
prevented conception
o Injury is the existence of a (healthy) baby and the costs associated with
raising the child
 Legal Rule: Doctor has no duty to parents (majority rule and some state statutes
such as Michigan’s)
o But note that some courts and legislatures (e.g., Maine) will allow
recovery for certain costs associated with the pregnancy and delivery as
opposed to childrearing
 Policy Reasons:
o The existence of a healthy child is not unpleasant
o A healthy child does not cause the inordinate financial burden of a child
with health issues
 Wrongful Life Summary Slide
 Claim: Brought on behalf of child
o Medical malpractice in failing to discover and disclose birth defects in
child
o Injury is life with birth defects, including expenses of medical care
 Legal Rule: Doctor has no duty to child (majority rule and some state statutes
such as Michigan)
o But note that the few courts that have allowed these claims have
premised it on financial burden when parent is not responsible for costs
(generally after the child becomes an adult)
 Policy Reasons:
o Moral and philosophical issues
o Recognizing a duty would be based on finding that the child would have
been better off had he/she not been born
 Wrongful Birth Summary Slide
 Claim: Brought by one or both parents (courts don’t generally distinguish)
o Medical malpractice in failing to discover and disclose birth defects in
child to parents
o Injury is birth of child (loss of choice to abort, not defects themselves)
 Legal Rule: Doctor has duty to parents (majority rule)
o But note that some state statutes do not allow claim (e.g., Michigan) or
limit damages (Maine)
 Policy Reasons:
o inordinate financial burden because of disabilities
o Those who do not want to undertake the burdens associated with a
disabled child have a right to choose abortion
By Nature of Risk
o Primary Assumption of Risk - Inherent Risks
 Case – Clover v Snowbird Ski Resort
 Issue: statute preclude P-skier from suing ski resort?
 Decision: ski resort does not have a duty to patrons when risk is inherent
because it is an “integral part of the sport of skiing”
o Whether risk is an integral part of the sport must be determined on a
case-by-case basis
 Legal issue: Whether D has a duty to P to act in accordance with the applicable standard
of conduct when there are inherent risks involved in the activity
 CL Rule: D does not have a duty to P when the injury is caused by an “inherent risk”:
 Risks that can’t be eliminated (because the risks are the reason for engaging in
the activity) or too costly to eliminate (reasonable care wouldn’t mandate that
the risks be fixed); and
 Risks are obvious (people know about them)
o NOTE: we do not ask whether the specific plaintiff knew of the risk but
what we think they would know; that knowledge is imputed
 Applies primarily to sports but has been extended to the inherent risks of amusement
parks and recreational activities
 Ex’s: movie theater and injured in the dark; injured on a roller coaster going too
fast
o Third Restatement View – NOT NECESSARY FOR APP ON EXAM
 Case – Behrendt v Gulf Underwriters Ins Co
 Duty: everyone owes a duty (Palsgraf)
 Breach: applies §R3rd test
 Restatement (Third): Duty and Breach
 Section 7: (a) An actor ordinarily has a duty to exercise reasonable care when the
actor's conduct creates a risk of physical harm. (b) In exceptional cases, when an
articulated countervailing principle or policy warrants denying or limiting liability
in a particular class of cases, a court may decide that the defendant has no duty
or that the ordinary duty of reasonable care requires modification.
 Section 3: A person acts negligently if the person does not exercise reasonable
care under all the circumstances. Primary factors to consider in ascertaining
whether the person’s conduct lacks reasonable care are the foreseeable
likelihood that the person’s conduct will result in harm, the foreseeable severity

of any harm that may ensue, and the burden of precautions to eliminate or
reduce the risk of harm.
 Comment to Section 7: Foreseeable risk is an element in the determination of
negligence. In order to determine whether appropriate care was exercised, the
factfinder must assess the foreseeable risk at the time of the D’s alleged
negligence
- (2.1) Duty to Conform to the Applicable Standard of Conduct
o Default Standard of Conduct: Reasonable Person:
 D’s duty is to act as a reasonable person would act in the circumstances
 Objective standard: not based on what D actually thought/knew. BUT depends on
relevant circumstances that would inform what a reasonable person would do in that
situation
 Court decides as a matter of law the applicable standard of conduct. But the jury applies
the standard to decide whether the D acted as a reasonable person would
 Case - Vaughan v Menlove
 Not looking at whether D was acting in good/bad faith.
 Ignorance of risk does not matter. Reasonable person would have known of risk.
Whether he didn’t/couldn’t know does not matter.
 Jury: compare conduct against fictitious reasonable person not based on what
juror would have actually done
 Case - Parrot v Wells
 Whether a reasonable person in the circumstances should have known
o Can change over time
o Can change depending on the community
o Relevant Circumstances: standard of conduct is acting as a reasonable person would “under
the circumstances”
 Dangerous Instrumentalities – external circ. (Stewart v Motts)
 There is only one standard of conduct, but the care which a reasonably prudent
person would use is in proportion to the danger involved. There is not a higher
standard of conduct for the use of dangerous instrumentalities
 The jury can be instructed on the dangerous instrument, but it is not an abuse of
discretion for the trial judge to decide that the proposed instruction was
cumulative to the general instruction
 Dangerous instrument is a relevant circumstance and the courts will sometimes
instruct the jury specifically on the degree of care
 Emergencies – external circ. (MyHaver v Knutson)
 The jury can be instructed specifically on the reasonableness of care in a sudden
emergency subject to the factors:
o Party seeking instruction had not been negligent prior to the emergency
o The emergency had come about suddenly and without warning
o Reaction to the emergency was spontaneous, without time for reflection
 A sudden emergency is a relevant circumstance, but the jury instruction is
discouraged/prohibited because courts are concerned jury will focus on the
emergency and lower the standard of conduct
 AR prohibited the instruction in 1997
 Knowledge and Skill – internal circ. (Cervelli v Graves)

 A person’s superior knowledge, intelligence, and skill (as well as attention,
perception, memory, and judgement) are relevant circumstances to the
reasonable person of standard of conduct
 The standard of conduct for an individual with specific attributes will be one of a
reasonable person with the attributes
 Factor to be considered: D’s higher skill and knowledge but not their lesser
intelligence
 Policy: if they have special skill then they should use them; creates incentive for
people to use the skills they have
 We can’t tell the jury that they can’t consider it. Jury needs to include it in the
relevant circumstances but not call it out
 Physical Disabilities – internal circ. (Poyner v Loftus – blind)
 Physical disability is a relevant circumstance for the standard of care and the
standard of conduct is of a reasonable person with the same disability
 Courts will commonly incorporate a particular reference to the physical disability
in the jury instruction along with the general instruction for relevant
circumstances
 Intoxication is not considered a physical disability. But maybe more sympathetic
to involuntary intox
 Mental Disability – internal circ. (Creasy v Risk – alzhemiers)
 Mental disabilities are not a relevant circumstance and the standard of conduct
is of a reasonable person without the same disability
 Courts will commonly direct juries not to consider mental disability in jury
instruction
 Public policy reasons for holding mental disabilities to a standard of reasonable
care in negligence claims include:
o Allocate losses between two innocent parties to the one who
caused/occasioned the loss
o Provides incentives to those responsible for people with disabilities and
interested in their estate to prevent harm and restrain
o Removes inducements for alleged tort-feasors to fake a mental disability
in order to escape liability
o Avoids administrative problems involved in courts and juries attempting
to identify and assess the significance of an actor’s disability
o Forces persons with disabilities to pay for the damage they do if they are
“to live in the world”
 Justification: see/understand physical disability vs being unable to
see/understand mental disability
o Special Standard of Conduct – Child [applies to all children under age of majority (18)
 Generally: age alone will not negate intent element for intentional torts. Therefore, kids
can be liable for negligence.
 General rule: the standard of conduct is how a reasonable child of the same age,
experience, intelligence, and capacity would have acted under similar circumstances
o Policy: let kids be kids; very process of acting like a kid gets us to the
reasonable person standard of conduct
 Some jx’s hold that young children cannot be capable of
negligence as a matter of law
o Pro-child rule policy: allow recovery for many children who otherwise
would have recovered nothing if the D had been able to prove that their
conduct was less careful than an adults would’ve been
 Exception A child could be held to the standard of an adult when:
o Inherently dangerous activity
o Adult only activity
o Policy: protects need of children to be children but at the same time
discourages immature individuals from engaging in inherently dangerous
activity or activity as an adult would
 Decisionmaker: Court decides what standard of conduct applies. Jury applies an
objective standard of the reasonable child with like capacity
 Objective test: a reasonable child in the circumstances presented by the facts
 We don’t care what this particular child’s thoughts were as to the
circumstance/conduct
 Evidence: Burden on D to prove contributory negligence of a child P
 Expert evidence is not required because a juror can use own experience as once
being a kid
 Vicarious Liability of Parents
 CL Rule: parents aren’t vicarious liable for child’s negligence
 Direct Claim of Negligence: parents may be directly liable for own negligence in
failing to supervise child
 Majority: vicarious liability for malicious and willful behavior by children [may be
limited by types of activities or by damage cap or type of damages]
 Minority: vicarious liability for all tortious behavior by children
o Special Standard of Conduct - Professional - Standard of Conduct: how a reasonable member
of the profession, exercising that level of skill and knowledge normally possessed by members
of the profession, would have acted under similar circumstances [minimum standard applied
across the profession]
 Specialist in the profession are held to the particular skills they possess
 Applies when undertakes to render services to another in the practice of the profession
or a skill trade
 Definition of a professional: physician or surgeon, dentist, pharmacist, oculist, attorney,
accountant, or engineer
 Also those in skilled trade, such as airplane pilot, precision machinist, electrician,
carpenter, blacksmith, or plumber
 Decisionmaker: Court decides applicable standard of conduct. Jury determines the
objective standard hearing expert evidence on level of skill and knowledge in profession
 Evidence: Expert witness required. Because jury likely will not have understanding of
the issue at hand.
 Lay witness testimony can be used.
 Relevant community: (3 possibilities)
 Strict locality: same locality (narrowest)
 Modified locality: same and similar locality
o Policy: local standard below standard for doctors required by law (pro-
plaintiff); physicians won’t testify against each other
 National: nationwide (most broad)

o Different don’t matter much anymore because more accessibility to
trainings/conferences/technology so not a limited understanding
o Factors: locality, advances in profession, availability of facilities, doctor is
general or specialist practitioner
 Community Definitions
 CL: varies by State but trend is to national standard (but can be modified)
 Statutory Approaches
o Modified for general practitioners but national for specialists (factor:
availability of facilities) – MI
o Strict locality unless no other like providers in the community, then
applies modified locality standard (i.e. pro-doctor)
 Examples of Jury Instruction
 Professional standard of conduct for physicians in AR: modified locality for
physicians; degree of skill and learning ordinarily possessed and used by
members of profession in good standing in the same locality or similar locality
 Professional standard of conduct for attorneys in AR: national; most possess
and use with reasonable diligence the skill ordinarily used by attorneys acting in
the same or similar circumstances
 Expert evidence is required for both for the standard of care
- (2.2) Proving Breach of Duty
o Balancing Costs and Benefits - Economic Test for Breach:
 Learned Hand Formula: B(burden)<P(probability of loss)xL(magnitude of loss)
 Burden of precaution: costs of lock, hiring security, notices, etc
 Probability of loss: expected accident costs; P’s loss or particular harm that
could have been avoided
 Burden of precaution is less than the magnitude of the accident, if it occurs,
multiplied by the probability of the occurrence
o D breaches duty if burden of prevention is less than the expected
accident costs i.e. burden is less, then the precaution should be taken.
 Harm is being monetized.
 RST Test for Unreasonableness: (abstract test) the risk of magnitude has to outweigh
(greater than) what the law regards as the utility of the act or of the particular manner
in which it is done.
 Utility factors:
o Social value of interest advanced or protected by D’s conduct
o Likelihood that interest will be advanced or protected by D’s conduct
o Likelihood that interest can be advanced or protected by D’s conduct
 Risk Factors:
o Social values of interests impaired
o Likelihood of harm
o Magnitude of harm
o # of persons affected
 Policy: we care about reasonableness and to do that we must consider D’s
conduct, P’s harm, and the social value
o Negligence Per Se
 Case - Martin v. Herzog

 Violation of a statue which takes decision out of jury. Statute itself is the
standard of conduct. The violation is the breach.
 Policy: society’s standard of conduct; legislature passing laws by elected officials.
Standard of conduct determined by our democratically elected society so we
choose that standard over the jury.
 Violation of Statute
 Legal Rule: the violation of a statue can be used to prove a breach of the
standard of conduct.
 Decisionmaker: Court decides whether violation of statute can be used to prove
breach. Jury determines facts needed for violation of statute and determines
whether there was a violation
 Pro-P Rule: this takes away D’s ability to argue about the relevant circumstances
because only the statute applies
 Note: violation has to be connected to the ultimate injury i.e. casual link
 Requirements for NPS:
 Statute prohibits specific conduct
o Clear about conduct required: specific language that requires them to do
[specific conduct]
 Legislature passed statute to protect class of people including victim
 Legislature passed statute to protect against the kind of harm which has resulted
and to protect that interest against the particular hazard from which the harm
results
o the focus of the inquiry is more than just harm/injury—it is also the
“hazard” or type of risk that causes the harm
o Ex in email if needed – sheep on boat; cow on train tracks
 [+ violation of the statute]
o Need evidence to show violation
 Intent of Legislature: legal question court answers by statutory interpretation
 If unable to determine intent from older legislature that made the law, then it is
okay to look at how the current legislation is applying the law
 Licensing statute: majority do not treat unlicensed driving as equal to negligent driving
 Regulatory approval is not standard of care.
 Failure to comply to a regulatory requirement is not a breach of tort duty. [page
163]
 Case - Sikora v Wenzel:
 3 options for interpreting statute (has procedural and evidentiary effect) (exam-
apply all):
o Strict liability: violation is conclusive, no excuses. Takes decision
completely out of jury.
o Negligence per se: violation conclusive unless we have an excuse. Jury
can hear excuses.
o Negligence: violation is mere negligence. Jury has a lot of power.
 Excuses allowed by RST
 The violation is reasonable because of the actor’s incapacity
 Ne neither knows now should know of the occasion for compliance (lack of
notice)
 He is unable after reasonable diligence or care to comply
 He is confronted by an emergency not due to his own misconduct
 Compliance would involve a greater risk of harm to the actor or to others
 How to Analyze a Potential NPS:
 Can the statute be used at all? [prohibits specific conduct, class of people, injury
experienced]
 Is there a violation of the statute?
 What is the evidentiary effect of the violation of the statute?
o Majority Rule: the violation has a conclusive effect on breach element
(negligence per se)
o Minority Rule: the violation is evidence of a breach (prima facie evidence
to mere evidence)
 Is there a valid excuse?
o Majority Rule: violation is not breach if jury accepts excuse
o Minority Rule: jury may take violation and excuse into account in
determining breach
 Note: still have to show causal link between the violation and the actual injury as part of
the causation element of a negligence claim – causation is an issue because sometimes
the violation is not the cause of the harm
 Statues (on Violation of Statutes)
 Common Law Rule: court determines treatment of statute and its conclusive
effect
 Statutory: legislature may direct that some violations are negligence per or may
direct that a violated is presumed
o Violation of Custom – Industry Custom: the D’s conformance or non-conformance with an
industry custom is relevant to the issue of breach. But it is not conclusive on the issue of
breach.
 Decision maker: Court decides whether industry custom is relevant. Jury determine
whether there was a breach of the reasonable person standard of conduct, taking into
account the evidence on industry custom
 Policy:
 Helps jury decide on breach as in whether conduct is a violation; gives them a
view into the world of business practice in which they would not know and
pushes back on siding with the victim
 Gives trade off of cost/benefit of whatever the reasonable standard of conduct is
the P is arguing for
 But juries could go after the entire industry
 TJ Hopper (radio receiving sets on a barge)
 Rule: industry custom is relevant but not conclusive on the issue of breach (in
most cases “reasonable prudence is in fact common prudence; but strictly it is
never its measure”)
 Ludman v Davenport
 Here, testifying to a particular set of facts, not the standard of conduct or the
breach. Just giving evidence to the jury so they can make a determination on
breach. (i.e. this is not expert testimony)
 Rule as to establishing custom derived. [see below]
 Walmart v Wright
 Not custom evidence, just Walmart custom.
 Evidence is relevant but not as to what the standard of conduct was.
 Guidelines can be relevant to the standard of conduct but not controlling. [if
controlling, this would become a subjective test]
 Juries can’t use a company’s standards to make a standard of conduct but can
use it as relevant
 Rule of internal policy derived. [see below]
 Legal Questions
 Is the practice an industry/custom?
o Must be adopted by (a large part of) the industry [large is not specified,
court call]
o An internal company policy is generally not an industry custom
 internal policies are subjective and are not an objective
industry custom; company may have a different (and
higher) standard of conduct than a reasonable company
would. But still relevant evidence, perhaps as to what was
practical or known
 Is the custom relevant to the issue of breach?
o The custom must be relevant to the question of whether the
individual/company failed to meet the standard of conduct
 Rule: D can establish custom based on factual testimony of person with
knowledge and experience;
o Exceptions: custom is not allowed into evidence if it is not relevant to the
conduct at issue in the litigation or if the custom is clearly unreasonable
 What is the evidentiary effect of the industry custom?
o Violation of custom is evidence of a breach (but not conclusive)
o Acting in conformance with custom is evidence of non-breach (but is not
conclusive)
 Was there a causal link between the violation and the actual injury? [must
show causation]
o Professional Standard – Violation of Professional “Custom”: professional custom is used as
strong evidence to prove breach or non-breach of the standard of conduct
 Decisionmaker: Court decides on the professional standard of conduct and may decide
if no conflicting testimony on the professional conduct. Jury determines whether there
was a breach of the professional standard of conduct where there is conflicting
testimony on professional custom
 Osborn v Irwin Memorial Blood Bank
 Policy: juries, by definition, are not the professions and we don’t want them to
make decisions contrary to the collective profession
 Rule: the appropriate standard of conduct is the professional standard of
conduct where the business/person/activity requires the exercise of professional
expertise and judgment.
 Rule: the standard of conduct is not breached when the defendant followed or
exceeded the actual practice and accepted practice [which here, was not to test]
 Determining Professional Custom
 Actual practice: what professionals actually do
 Accepted practice: the reasonable expectations that the profession holds for its
members
 Evidentiary Effect of Compliance with Custom
 Strong evidence of breach or non-breach (majority)
 Conclusive evidence of breach or non-breach (minority)
 Exceptions:
 Professional custom is unreasonable (ex. eye doctor case.) NOTE: this is very
rarely the cases, only where benefits of custom are clearly outweighed by the
cost.
 Professional Standard: Use of Experts (Davis v Enget)
 General rule: expert testimony is needed to establish Professional standard of
conduct and Breach of professional standard of conduct
 Exceptions:
o When the standard of conduct can be determined by common
knowledge
 Ex. administrative or routine care
o When breach of standard of conduct is obvious or blatant
 Ex for attorneys: allowing SOL to run, failing to meet
deadlines
 Ex for doctors: leaving sponge in body, etc
 Statutes that specific exceptions for professionals
o Res Ipsa Loquitur ~ the things speaks for itself
 Generally: this doctrine is used when you can’t explain what happened and a P would
otherwise be kicked out of court i.e. this a pro-P rule
 Defined: circumstantial evidence that creates permissible inference of negligence
 This doctrine cannot be relied on when the P puts forth a “sufficient, complete
explanation of D’s breach. P may be able to offer “some” evidence.
 Elements: NOTE: on exam only apply first 2
 Type of occurrence usually associated with negligence
o Occurrence: one that would not normally happen without negligence. It
is the occurrence, not the injury.
o D’s burden to show that the occurrence happened for some other reason
that is not their fault.
o P does not have to eliminate all other possibilities of how it occurred.
 D had exclusive control of instrumentality that caused
o Control: does not necessarily have to be exclusive; can be the last person
in control the person who has the right to control, the opportunity to
control, or responsibility to control
o §R control test is different. Control is just a consideration, not a
requirement. BUT normal test still applied for now.
o P’s can use expert witnesses to testify as to this element.
 Medical Cases w/ Expert Witnesses: can be permitted
with a res ipsa inference where the expert testimony gives
general nature of medical procedure and risks associated
with it but does not identify specific acts of negligence in
the P’s case
 P did not contribute to the harm (most states don’t use - used in a world of
contributory negligence)

 Jury can infer based on the circumstantial evidence that D breached standard
of conduct (used by some states - assumed under firs two elements.)
 Evidentiary effect:
 Permissible inference allows P to avoid a directed verdict by the D and gets P a
jury instruction.
 Jury can infer based on the circumstantial evidence that the D breach standard
of conduct. BUT the jury does not have to infer breach, even if D does not put
forth evidence on its own.
 Case - Byrne v Boadle (barrel and window)
 Rule: P is not required to produce direct evidence. There is a presumption of
negligence.
 Reasoning: “It is the duty of the persons who keep barrels in a warehouse to
take care that they do not roll out.”
 Element – occurrence: here, not the head injury that does not normally occur
but that the barrel does not normally fall without negligence.
 Case - Shull v Goodrich (truck driver injured on loading dock)
 Rule: A jury instruction is appropriate that allows the jury to infer a breach of the
standard of conduct from circumstantial evidence.
 Case - Dover Elevator v Swann (elevator malfunction)
 Rule: Res ispa does not a apply where the P offered “sufficient complete
explanation” of the accident.
o Medical Malpractice - Informed Consent: this is a specific type of med mal claim. only thinking
about breach.
 Cases: Largey v Rothman (breast biopsy/risk of lymph nodes) – below tests derived
from
 Standard of conduct by which breach of failure to disclose a risk is determined:
 Professional standard: how a reasonable member of the profession, exercising
that level of skill and knowledge normally possessed by members of the
profession, would have acted in disclosing risks of the procedure under similar
circumstances
 How is breach of the standard proven:
 Professional (doctor-focused) test: medical provider failed to disclose the info
on risk that a reasonable provider [in the relevant community] would under the
circumstances
 Prudent patient or materiality of risk test: medical provider failed to disclose
the info on risk that is material to a reasonable patient’s decision under the
circumstances
 Policy: focus should be on the patient and not the doctor; patient has a right to self-
determination; communities would set a low bar; difficult to get dr’s in community to
testify against each other
 Some statutes apply professional test while allowing consideration of what a patient
would reasonably be expected to know or did know
 Standard for causation:
 Rule: but for the failure to provide information, the patient would have declined
the procedure

 When the court applies prudent patient/materiality of risk standard, the
objective test may be applied which focused on what a prudent person in the
patients position would have done w/ the info
- (3) Cause in Fact
o Default Test
 But-For: whether P’s injury would not have happened but for (absent) the D’s tortious
conduct
 This tortious conduct is the conduct that breaches he applicable standard of
conduct
 But in particular situations, this test doesn’t give the “right” answer so courts use
alternative tests for factual situations
 OR: would the plaintiff’s injury have occurred had the defendant acted in accordance
with he applicable standard of conduct?
 Yes, the injury would have occurred: then but-for not satisfied; the injury is
inevitable regardless of the breach
 No, the injury would not have occurred: then but-for cause satisfied; the injury
was not inevitable, only happened because of the breach
 NOTE: the inquiry is counterfactual
 The jury must imagine an alternate reality in which the D acted correctly.
 Note that the test is based on the characterization of the tortious conduct and
the injury
 Evidence:
 Cause in fact can be shown by direct or circumstantial evidence
 When there are technical issues, will need to put forth expert evidence
 Burden of proof: must be demonstrated by a preponderance of the evidence
 Decisionmaker: Court decides the proper test for cause in fact. Jury determines
disputed facts and applies the test to the evidence
 There may be multiple “but-for” causes. Can be endless cause in fact but because we
have to tie cause to breach, the cause must be relevant. Must tie to some violation of
applicable standard of conduct and duty
 Cases: Cay v State of Louisiana (bridge railing)
 Cay’s death would not have happened but for (absent) the state’s failure to raise
the height of the railing OR would cay’s death have happened if the state had
raised the height of the railing
 Can’t just tell a story about link of conduct to harm; but the bad act must be
necessary to the outcome because someone having to pay for a wrong
*stringent test
 Case - Lyons v Midnight Sun (car accident)
 Hunter-Lyons’ death would not have happened but for Jette’s speeding and/or
swerving ◦ Or, would Hunter-Lyons’ death have happened if Jette had been
driving the speed limit? If he had stayed in his lane? If not, then the but-for test
is satisfied.
 There is not cause in fact: jury could have reasonably found that Hunter Lyons’
death would have happened even if Jette had been driving the speed limit
 Case - Fishman v Brooks (trial within a trial)
 To show cause in fact, must show settling for less than the case was worth would
not have happened but for Fishman’s inadequate skill and care

o Or, would Brooks have gotten the same amount of money or less if
Fishman had met the professional standard of conduct (exercised
adequate skill and care)? This is the case within the case. If no, then the
but-for test is satisfied.
 Decision: It was proper to allow expert evidence on reasonable settlement value
because went to element of cause in fact; shows that if Fishman had exercised
adequate skill and care, he would not have advised Brooks to accept the lower
amount
o Alternatives to But-For Causation
 Multiple Sufficient Causes
 Kingston v Chicago
o Would the property damage have happened if the railway did not start a
fire? No, because the property would have been damaged anyway by the
other fire.
o What does the court decide? Where the acts of two concurrent
tortfeasors combine to produce a harm to another and either act would
have been sufficient to produce the harm, the burden is on each
tortfeasor to show that its act was not a legal cause of the harm.
 Substantial Factor
 Brisboy v Fibreboard (abstesos)
o Issue: Was the tortious conduct of the defendant (failing to warn the
plaintiff of the dangers of working with asbestos) the cause in fact of the
plaintiff’s death from lung cancer
o Met substantial factor test: Even though Rand only worked for the
defendant for 6-9 months, a reasonable jury could conclude that Rand
developed asbestosis from breathing in asbestos at the workplace, that
any asbestosis can cause lung cancer, and that the failure to warn was a
substantial factor in bringing about his death based on a comparison to
the other exposures
 When there are multiple sufficient causes, the but-for test is not satisfied. In this
situation, courts apply the substantial factor test
o Was the tortious conduct a substantial factor in bringing about the injury
(i.e., a substantial contributing factor)?
o There can be more than one substantial factor
 R (Second) lists factors to consider in deciding whether the factor is substantial:
o the number of other factors which contribute in producing the harm and
the extent of the effect which they have in producing it;
o whether the actor's conduct has created a force or series of forces which
are in continuous and active operation up to the time of the harm, or has
created a situation harmless unless acted upon by other forces for which
the actor is not responsible;
o lapse of time
 Alternative Liability (single cause but multiple possible D’s)
 Case - Ford Motor Co v Boomer (mesothelioma)
 §R Third Test: - Sufficient Cause
o The “substantial factor” test has been criticized

 At what point a factor rises to the level of “substantial” is
not clear, which leaves the jury confused about the proper
test
 The test has been used by some courts to find cause in fact
when there are /multiple causes but the cause is not
sufficient, thus weakening the causation element
o Restatement (Third) alternative test
 When there are multiple sufficient causes, each sufficient
cause is a cause in fact
 Test is limited to acts that are “at the same time,” that is,
“operating and sufficient to cause the harm
contemporaneously”
 Case - Summer v Tice
o Focus here: the shot to the eye was the worst damage which came from
only one gun. Hunters creating a risk by aiming at the direction of the
other guy
o Burden: shifts to D to absolve themselves or apportion damages, as it
would be unfair to leave P without a remedy
 NOTE: there is also liability for “concerted actions” but
there is no evidence of a common plan among the D’s
o POLICY:
 Practical unfairness to deny the injured person redress
simply because he cannot prove how much damage each
did
 D is in a better position to offer evidence (“conspiracy of
silence)
 By its very nature, the facts tell one D or the other cause
the harm but we just can’t figure out the right one.
Probability that D’s would work it out or we could figure
out who did it is much greater
 Pro-Plaintiff Rule
 Case – Burke v Schaffner
o AL is not appropriate because only one D breached the applicable
standard of conduct (stepped on the accelerator) and AL requires
multiple D’s.
o For AL, all negligent person’s must be named. Here, only one named.
 AL Requirements
o Two (or more) defendants breached a duty to the plaintiff
o Each defendant created a substantially similar risk of harm through
his/her breach of the applicable standard of conduct
o One (or more but less than total) is the cause in fact of the harm
o Plaintiff does not know which defendant(s) is the cause in fact due to no
fault of his/her own
 AL Conditions
o At least two defendants, but must be small in number
o All tortfeasors are defendants in suit
 AL Result
o Plaintiff has met burden of proof on cause in fact
o Burden of production and persuasion is shifted to defendants to show
which was cause in fact
o If defendants cannot demonstrate which was cause, all are held liable
 Market Share Liability (single cause but multiple possible D’s)
 Case – Hymowitz v Eli Lilly
o Market share liability is limited to products liability.
o Theory: marketing itself of this drug was breach.
 Here, too many potential D’s to have to recognize so
loosened the requirements of AL.
 Not all D’s, just substantial share.
 Will need a fungible product (i.e. one that is similar across
the market)
 Several liability: allocate responsibility which means we
are not going to stick everyone D with 100% of the loss.
Some P’s will get less $$.
o P’s can only recover from D’s in the action which could result in less than
100% recovery
o Market: national
 Only way to you get out is that you show you never
marketed it nationally. But does not matter if it was never
to the particular state.
 If D sold in the national market, then D is held severally
liable based on the market share even if D can show it was
not he CIF of this P’s injury
o Market shared liability is appropriate in part because legislature allowed
COA.
 Requirements
o Inability to identify the specific manufacturer
o Substantial share or majority of manufacturers in the lawsuit
o Fungible product (basically identical) made by all of the defendants in the
lawsuit
 Result
o Plaintiff has met burden of proof on cause in fact
o Burden of production and persuasion is shifted to defendants
o States take different approaches to relevant market and ability of
manufacturer to show not cause
 Policy Reasons
o Would be unfair if no liability, as a manufacturer caused the injury
o D’s generally have better access to info (and P has none)
 Lost Chance of Recovery (single cause but injury is change in risk)
 Case – Matsuyama v Birnbaum
o Damages for future harm
o Think about what the harm is (diminished chance of survival) and
separate out from preponderance of the evidence (expert witness)
 More likely than not that the reduction in chance would
occur
 Reasonable medical certainty that you went from X% of
survival to a lower % of survival
o Injury: loss chance of survival, not the injury itself (don’t actually have to
die)
o Not applied outside medical mal. practice claim.
 Reliable expert evidence
 Dr-patient relationship
 Presenting for a diagnosis means patients likely to have
less chance of survival anyways
 Party more capable of preventing harm should bear
consequences
 Traditional But-For Test
o If have 50% chance of survival or less, reduction in chance can never be
cause in fact of death
o But if have 51% chance of survival, reduction in chance to 0 can be cause
in fact of death
 Loss of Chance Test
o Uses but for test; but the loss of opportunity/chance to succeed itself is
the injury
o Would the plaintiff have lost the opportunity/chance of survival if the
defendant medical provider had acted in accordance with the standard of
conduct?
o Preponderance standard applies to determination that the defendant
was the cause in fact of the lost opportunity (by reasonable medical
certainty)
 Damages of Loss of Chance Test
o Damages are limited to the lost opportunity, calculated proportionally
o Proportional damages calculated by subtracting reduction in chance of
survival from initial chance of survival (which provides the reduction in
chance of survival caused by the breach), and multiplying that percentage
by the total damages
 Increased Risk of Harm (single cause but injury is change in risk)
 Case - Petriello v Kalman
o Increased risk of harm [of a bad event happening]
o Have to claim damages of future injuries in original lawsuit
o More likely than not to occur (>50% chance)
o Present harm: currently living with an increased risk which is what P is
being compensated for
o Proportional damages calculated by probability of harm occurring
o Policy:
 SOL – discover injury later and prohibited from bringing
claim at that time
 Discovery rule: SOL runs on actual discovery of injury
rather than tortious conduct/event that caused the injury
 Not really fair to D: maybe if D had a lot of cases in just
over 51%. Pro-Plaintiff Rule
 Traditional But-For Test
o If have 50% chance of future harm or less, breach can never be cause in
fact of death/ultimate injury
o But if have 51% chance of future harm, breach is cause in fact of
death/ultimate injury
 Increased Risk of Harm Test
o Uses but for test; but the increased risk itself is the injury
o If the defendant medical provider had acted in accordance with the
standard of conduct, the plaintiff would not have the increased risk of a
future harm
o Preponderance standard applies to determination that the defendant
was the cause in fact of the increased risk (by reasonable medical
certainty)
 Damages of Increased Risk of Harm Test
o Damages are limited to the increased risk, calculated proportionally
 EXAM: Always start with the but-for test then go to other tests such as SF and AL
(remember it is the difference between D’s all being responsible v. only one
being the same cause and we can’t figure it out)
- (4) Proximate Cause: Limitations on liability: is there a connection between the D’s tortious conduct
and the P’s harm? [limiting but-for causes by creating a circle of how to extend liability]
o Decisionmaker: jury determines proximate causes as a question of fact
o Palsgraf v Long Island Railway Co.
 Cordozo: It is the specific duty to the P that matters. No transfer of duty in negligence
cases. **P2 can recover only if she can establish that a reasonable person would have
foreseen a risk of injury to her in the circumstances, aka that she was located in a
foreseeable “zone of danger**
 Orbit of danger: what would be reasonably foreseeable that P located in orbit of
danger as disclosed to the eye of vigilance perceives the risk would be the orbit
of duty
o the risk perceived defines the duty. Risk imports relationship between
the D and group of people. question is whether that relation includes P.
o reasonably foreseeable: at that moment in time injury would occur
[nothing in this case that looks special, could be food]
 Andrews (dissent): We owe a duty to each other because we live in society together.
Duty is less important because it is already owed. Courts just setting the line as to PC
which has a lot to do with policy and less to do with doctrinal rules. Courts seem to have
result-based approach. **D owes a duty of care to anyone who suffers injuries as a
proximate result of his breach of duty to someon**
 Factors: natural and continuance sequence; substantial factor; directness
without too many intervening causes; attenuation; likelihood of injury
foreseeability as in hindsight; remoteness in time and space
 Here: focus is on explosion
 If we did this, more people would be liable
 Today: Cordozo wins on idea of duty. Traditionally, we need a duty to specific P, not a
duty to the world.
 PC: reasonable foreseeability gets applied at that moment in time from the perspective
of person engaging in that conduct
o Legal issue: is there a proximate connection between D’s tortious conduct and P’s harm?
o Requirements:
 Conduct must be a cause in fact
 Applies to negligence claims, not intentional tort claims
o Policy reasons:
 Unfair to hold actors liable for all harm associated with conduct
 The actor’s conduct and the P’s harm must have a reasonably close connection to justify
requiring the actor to pay for it if the policy goal is to deter socially undesirable behavior
 Reasonable notice?
o Proximate Cause Test - Direct Consequences (minority test- but courts often go back to it)
 Case - In re Polermis (directness test)
 Importing foreseeability into breach. Reasonable person foresees danger then
breach
 Once there is a breach (because some damage was foreseeable), then direct
connection even if unexpected damage
 Directness: directly traceable to D’s conduct; was there a direct connection
between the D’s conduct and P’s injury? If so then foreseeability is immaterial
o Chain of events between tortious conduct and injury without an
intervening cause then it does not matter if injury foreseeable or not
 Similar to but-for test. The difference is the intervening act
 Case – Laureano v. Louzoun (directness test)
 Duty: landlord tenant relationship; to act as a reasonable landlord would under
the circumstances
 Breach: can be found even though no PC; here, failing to fix heat
 But for: but for D’s negligence of not providing hot water, she would have not
been injured
 PC: banging pots together is the intervening causes
 Therefore, we don’t get to P’s contributory negligence bc we don’t even get
through prima facia case of negligence
 Directness Test
 Inquiry: was there a direct connection between the tortious conduct and the
injury?
 The inquiry focuses on the chain of events
o Was the harm directly traceable to the D’s conduct rather than the
operation of some independent, unrelated cause?
o If there is an intervening act, then the chain is broken
 Characterization of sufficiency of intervening act is critical
o Must “make the injury its own”
o P’s will want to downplay the importance of any other acts while D’s will
want to highlight the importance of any other acts
o Foreseeability (majority test) [focus is on intervening act]
 Case – Tieder v Little (foreseeability)
 Duty: architect to P; standard of conduct: professional
 Breach: yes; (could use negligence per se – building code)
 But for: but for wall being poorly constructed, would she had died
 PC: general type of accident was a reasonably foreseeable consequence of the
D’s negligence (not all the crazy things that happen in between)
o Here: collapsing brick wall to a person near the wall
 To be foreseeable, it is only necessary that the general type of accident which
has occurred was within the scope of danger created by the tortious conduct
 Foreseeability test
 Inquiry: was the type of harm a reasonably foreseeable result of the tortious
conduct?
 Connect the tortious conduct (breach) to the type of harm
 The type of harm focuses on the type of accident and the resulting injury
o The exact sequence of events or the particular way in which the harm
occurs isn’t what has to be foreseeable; it is the type of accident and the
injury that results
 Characterization of harm is thus critical to foreseeability determination:
o The more general the characterization, the more likely the conduct is the
PC
o P’s will want to make the type of accident and resulting injury as general
as possible while D’s will want to make it as specific as possible
 Case – Schafer v Hoffman (Eggshell P rule)
 Reconcile with PC analysis: not focusing on foreseeability of extent of damages
but on the general type of injury
o Here, reasonably foreseeable injury would occur when getting hit by a car
and injuries would occur therefore PC
 Eggshell P rule: a D is liable for the full extent of the P’s injuries, even if
unforeseeable, if the general type of accident and resulting injury are
foreseeable
 General Rules
 Tortfeasors take their P’s as they find them
o The foreseeability test in PC focuses on the type of accident and resulting
injury, not on the extent of the injuries or the amount of damage
 Eggshell P Rule:
o Extent of injury does not have to be reasonably foreseeable
o Will be liable even if V has a pre-existinng conditions or is predisposed or
more susceptible to ill effects than a normal person
 Shabby Millionaire Rule
o Extent of damages (loss) does not have to be reasonably foreseeable
o Will be liable for the entire damage – if it’s loss of earnings, D pays what
the P was earning even if the P looks poor
o Intervening Cause: an act or conduct (usually by a 3rd party) that comes after the D’s act in the
chain of events leading to the P’s injury
 Case – Price v Blaine Kern Artista (Harrah’s & prez mask)
 Intervening act or conduct: Patron at bar pushed P
 Test used: Foreseeability – was the act (a violent reaction by a third party to the
mask) reasonably foreseeable
o FOCUS: on the act or conduct which is intervening
 Decision: a reasonably jury could find as a matter of fact that a maker could have
reasonably foreseen a violent rxn by a 3rd party to a caricature of a politically
prominent figure
 Legal Effect:
 An intervening cause on its own does not necessarily negate PC
 If the intervening cause is a superseding cause, the D’s act is not a PC of the
injury
o The third party will be liable, assuming the other negligence elements are
met
 If the intervening cause is not a superseding cause, the D’s act is a PC of the
injury
o Both the D and the third party will be liable, assuming the other
negligence elements are met
 Case – McClenahan v Cooley (keys in car theft)
 Intervening act (focus): thief stealing car and increased risk to the public
 Test: foreseeability – was the theft of a car left unattended in a public place with
the keys in the ignition and the increased risk to the public reasonably
foreseeable
 Decision: a reasonable jury could find as a matter of fact that a person could
reasonably have foreseen that a thief would steal the car in these circumstances
and that increased risk would occur
 POLICY for owners not being liable: (majority view)
o No duty owed to pubic of theif’s negligent act
o Thieft and nelgient act not reasonably foreseeably
o Thiefs action independent, intervening cause so owner not PC
o Superseding Cause: an intervening cause that “supersedes” the D’s act and relieves the D from
being a proximate cause of the P’s injury
 Foreseeability Test: Majority Test
 Intervening act or conduct was not reasonably foreseeable
 That is, a reasonable person would not have foreseen the act or conduct
 The focus is on the type of act or conduct, not the precise series of events
 Differences in Foreseeability Tests
 The test for duty focuses in part on the foreseeability of the P or harm
 The test for PC focuses on the foreseeability of the general type of accident
 The test for superseding cause focuses on the foreseeability of the intervening
act or conduct
 Scope of Risk Test: §R 3rd
 The intervening act or conduct was not within the scope of the risks that made
the D’s conduct tortious
 The test focuses on the foreseeability of the type of intervening act and the
consequences
 Case – Barry v Quality Steel
 Abandons superseding cause analysis because it is inconsistent with comparative
negligence and apportionment
 If you have multiple negligent actors and conduct is a cause in fact and PC of P’s
injuries, then allocate liability among them
o POLICY: if you have PC and AC then you are at fault. Not going to apply
intervening cause where we have doctrines to hold each D at fault.
Applying IC would relieve others from liability.
 P’s: traditionally, superseding cause is about 3rd parties. Some courts have
considered P’s own actions as IC rather than contributory negligent…if “wholly
unforeseeable” and P’s conduct arises above “mere negligence”
 Statute on Firearms
 As with other common law rules, state legislatures can change the test for
proximate cause (including superseding causes)
 Colorado statute provides that a manufacturer’s, importer’s, or distributor’s
placement of firearms or ammunition into the stream of commerce is not a
proximate cause of the injury from a third party’s use or from accidental
discharge
o In essence, the third party’s use of firearms or ammunition is deemed the
proximate cause of the injury
o When the claim is one of products liability (e.g., there was a design defect
in the product or there was a failure to warn about the risks of the
product), the accidental discharge is deemed the superseding cause of
the injury, even if foreseeable
 Case – Weems v Hy-Vee Food (fell and eventually epidural shot)
 Intervening act/conduct: medical treatment
 Test: only will be a superseding cause if it is not a normal consequence of the
original tortfeasor’s acts or was so extraordinary as to fall outside the class of
normal events
o As long as the risk is in the scope of the medical treatment, even if risk is
rare, then it is fine
 Decision: as a matter of law, the medical treatment was not extraordinary or
unforeseeable, and thus no reasonable jury could conclude that it was not a
superseding cause
 Case – Corbett v Weisband
 Intervening act/conduct: negligent medical treatment
 Test: later negligent conduct will be a superseding cause if a reasonable person
[professional] would regard it as “highly extraordinary” that the third party acted
in this manner
o Highly extraordinary is a very strict test. Possible for jury to find it was not
highly extraordinary, then it will go to the jury
 Policy: not going to let off the hook unless H.E. so spreading the cost across
doctor’s so not just one doctor is held liable for all
o Generic med mal then “reasonably foreseeable” applied
 Decision: a reasonably jury could find as a matter of fact that the 2nd doctors
conduct was not highly extraordinary, even if it is a breach of the standard of
conduct
o NOTE: issue of breach is different than the issue of PC
 Medical Treatment
 General rule: later medical treatment is not a superseding cause [unless
extraordinary and harm outside of the risk]
o D is expected to recognize risk in medical treatment for injury
 But if the risks are outside the scope of the D’s tortious conduct, then the D will
not be held liable for the enhanced harm [Note 4, pg 318]
 Statutes on Withholding Life Saving Treatment
 Both statutes provide that withholding or withdrawing life saving treatment is
not an intervening cause (which also means it is not a superseding cause) when a
defendant has caused the terminal condition
 Limited to certain conditions
o Out of hospital DNR or living will
o Court order or decision of court appointed guardian
o Good faith medical decision by attending physician
 Ensures that initial defendant will be held liable for negligence
 EXAM: First analyze cause in fact and whether directness or foreseeability tests for PC
are met
- (5) Actual Injury: an element of a negligence claim. Plaintiff has the burden to prove actual
“compensatory” damages. Compare to intentional tort claims, where certain claims allow nominal
damages
o Actual injury includes: actual physical injury, emotional and mental distress (but we will discuss
duty rule for when this distress is the only damage alleged), actual damage to property
o NOTE: Actual injury does not mean tangible injury. Emotional and mental distress are actual
injuries (where duty is recognized)
o NOTE: There are special duty rules on mere economic losses and injuries related to conception
and birth
o Case – Feille v San Antonio Traction
 Issue: can P recover under negligence where there is no proof of actual injury
 Here, P arguing breach is sufficient but this is not enough to win on a negligence
claim
 Decision: no; only “slight collision.” ◦ “In no event can a plaintiff recover for an alleged
injury which he never sustained, however negligent the defendant may have been in
doing an act which would ordinarily be expected to directly produce such an injury”
 STRICT LIABILITY
 Strictness: requires actor to pay for injury even when the actor has no intent to injure and has
acted in accordance with the applicable standard of conduct (e.g., as a reasonable person would)
 Application: certain activities that are deemed high risk or unusually dangerous, such as owning
wild animals or engaging in an abnormally dangerous activity such as blasting
 Elements:
o Specific Act: Possessing an animal [possibly with scienter] or engaging in an abnormally
dangerous activity
o Cause in Fact
o Proximate Cause
o Actual Injury
 Animals
o Case – Clark v Brings (cat)
 Issue: Should the owners of the cat be strictly liable for the personal injuries it
caused?
 Decision: No, the owners are not strictly liable
 Court will not change common law rule based on the animals’ productive use
when the rule rests on long experience with domesticated animals being
harmless; statute imposing strict liability for injuries by dogs does not apply
to cats. A reasonable jury could not find knowledge (scienter) based on the
evidence
o Case – Byam v Main (donkey)

 Issue: Should owners of a donkey be strictly liable for personal injuries it caused in a
public place?
 Decision: No, the owners are not strictly liable because the donkey was not
trespassing. Strict liability for injuries when trespassing is designed to be extension
of trespass rule for persons and to protect the property rights of owners, does not
cover public places but can still sue in negligence
o Wild animals:
 Definition: “animal that is not by custom devoted to the service of mankind at the
time and place at which it is kept” (Restatement (Second))
 “Animal that belongs to a category which has not been generally
domesticated and which is likely, unless restrained, to cause personal injury”
(Restatement (Third))
 NOTE: that a zoo or circus animal such as an elephant is treated as a wild
animal Common Law Rules
 Type of injuries: Strict liability applies to injuries by animals if the injuries
result from dangers normal to the class of animals or keeper knows or has
reason to know of danger
 Strict liability applies to damage by trespassing animals
 *Note that premises liability rules apply to those injured by
animal while on keeper’s land
o Domesticated animals
 Definition: “Animal that is by custom devoted to the service of mankind at the time
and in the place in which it is kept” (Restatement (Second))
 Generally divided between livestock (kept for use) and pets (kept for
pleasure)
 Type of injuries - CL Rules: Strict liability applies to injuries by animals only if
owner knows or has reason to know that animal had dangerous tendencies
that are abnormal to breed (“one bite” rule)
 Strict liability applies to damage by trespassing animals
 *Note that premises liability rules apply to those injured by
animal while on keeper’s land
 Statutory Approaches: personal injuries under certain conditions (MN);
specific types of property damage (SD); those keepers who have a fence
(“fencing out”) (NV); taxpayers to designate a special district to revert to
common law position (AZ)
 Abnormally Dangerous Activities
o Common Law Rule: strict liability applies to injuries caused by abnormally dangerous
activities (sometimes termed ultrahazardous activities)
o Comes from famous English case of Rylands v. Fletcher (1868), which concerned activities
on land, but also applies to activities such as blasting and firecrackers
o *Note that the judge makes the decision as to whether an activity is abnormally dangerous,
but the jury would need to determine any disputed facts
 RST 2: in determining whether an activity is abnormally dangerous, the following factors are
balanced:
o Existence of a high degree of risk of some harm to the person, land or chattels of others;
o Likelihood that the harm that results from it will be great;
o Inability to eliminate the risk by the exercise of reasonable care;

o Extent to which the activity is not a matter of common usage;
o Inappropriateness of the activity to the place where it is carried on; and
o Extent to which its value to the community is outweighed by its dangerous attributes.
o Benefits: flexible test that responds to particular circumstances; broad inquiry that includes
many different aspects of activity.
o Detriments: difficult to determine up front whether an activity meets the test; criticized for
using economic value and location as factors to limit application of strict liability
 RST 3: an activity is abnormally dangerous if:
o the activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors; and
o the activity is not one of common usage
o Benefits: easier to determine up front whether an activity meets the test; no longer
includes economic value and location (at least not directly)
o Detriments: limits application of strict liability to those risks that could not be reduced by
reasonable care; limits flexibility to respond to particular circumstances
 Case – Klein v Pyrodyne Corp
o Issue: Is the D’s activity an abnormally dangerous activity that would make the company
strictly liable for the injury?
o Decision: Yes, the activity of setting off fireworks could be an abnormally dangerous activity
on the first four factors: high degree of risk, likelihood of harm is great, inability to eliminate
risk, and not common usage
o *Note that the activity would also meet the Restatement (Third) test because the other two
factors (the activity is appropriate to the park and the display has value) are no longer part
of the test
 Case – Ely v Cabot Oil & Gas
o Issue: Is the D’s activity an abnormally dangerous activity that would make the company
strictly liable for the injury?
o Decision: Hydraulically fractured natural gas wells are not an abnormally dangerous activity,
based on all of the Restatement (Second) factors
 Note that focus of harm is on groundwater contamination, not on other risks to
environment or safety
 AFFIRMATIVE DEFENSES: raised by D in answer; burden on D to prove elements under the preponderance
standard; bars or limits recovery even if P meets the prima facia elements of the claim
 Two types: defenses that apply by claim asserted or defenses that apply generally, regardless of
nature of claim
 Focus of defenses:
o P’s Responsibility for Injury (two issues)
 Whether P was negligent (same analysis in all jxs)
 NOTE: must analyze P’s own negligence???
 Elements: (1) breach of standard of conduct (reasonable person); (2) cause in
fact; and (3) proximate cause
 D has burden to prove either through D’s evidence or P’s own evidence
 What effect that negligence has on recovery (differs by jx)
 Contributory Negligence [minority – 4 states]
 NOTE: in this jx, issue is whether negligent at all

 Case – Wright v Norfork RR: P barred from recovery bc
negligent?
 RULE: P denied any recovery if at all negligent/at fault
(complete bar)
 Policy: limits tort recovery to those who are truly innocent V’s;
P is “architect of his own misfortune” and should be
penalized; P is cheapest cost avoider in many situations
therefore will deter
 Pure comparative fault [12 states]
 Case – McIntrye v Balentine [adopts 49% rule]
 RULE: P’s recovery decreases based on % of fault
 Ex: 90% at fault, only gets 10% damages
 Policy: if D is at fault then should pay for that harm; creates
fairest outcome; deters negligence by both parties
 Modified comparative fault
 RULE: recovery limited to D’s % of fault
 RULE: recovery barred if above either 49% of 50% threshold
[note that rules can apply to all damages or only certain types]
 49% Rule: P can recover only as long as less negligent than the
D [11 states + AR]
 50% Rule: P can recover only as long as equally or less
negligent than D [22 states]
 Policy: compromise between Cont. Neg. and Pure Comp Fault;
retains fault-based system by allowing P to recover if less (or
equally) at fault
o Determining Comparative Fault – decided by jury
 Case – Dobson v Lousiana Power & Light
 P 40% at fault and D Co’s 60% at fault bc
 Actor with superior ability (knowledge) has easier burden to
remove the harm; the utility company could have used
relatively inexpensive insulation methods
 Actor with inferior knowledge such as tree trimmer has much
greater burden if required to avoid a danger he doesn’t even
know about
 Focus is on fault. But some also focus on causal-contribution, such as substantial
factor, relative foreseeability, relative directness of connection
 Learned Hand: burden of precautions & amount of risk created
 Factors:
 Whether conduct resulted from inadvertence or involved an awareness of
danger
 How great a risk was created by conduct
 Significance of what was sought by conduct
 Capacities of actor (superior or inferior) ◦
 Extenuating circumstances that might require actor to proceed in haste
 NOTE: on exam, you can use either test. Whichever one fits better to the facts.
 Express Assumption of Risk

o Case – Wagenblast v Odessa School Dist [release for student athletic participation was not
enforceable bc of public policy concerns; applies factors]
o Factors:
 Endeavor is suitable for public regulation
 Service is of great importance to public and is often a matter of practical necessity
for some members of the public
 Service is held out to public as being open to all or those who come within certain
standards
 There is clear and disparate bargaining power
 There is no means of modifying the release
 The person or property is under the control of the defendant
o Assumption: K in which you agree not to sue for occurrences; voluntary, knowing
assumption of future occurrences
o General effect: complete bar to negligence claim; courts are divided on application to strict
liability claims. Usually still a complete bar in comparative fault jxs
o Public policy reasons: P’s and D’s should be able to K around risk in private context, as long
as agreement is voluntary and knowing
o NOTE: may occur by written agreement, express oral argument, or conduct that creates an
implied in fact K; whether there is such a K is determined by the applicable rules of K law
o Case – Turnbough v Ladner
 Scuba diving release not enforceable based on specific context
 Reasoning: pre-printed release strictly construed against creator. No meeting of the
minds i.e. student and teacher. Release text is not specific and unmistakable.
o Exceptions:
 Contrary to Public Policy: Do public policy concerns militate against releases for
these types of activities?
 Exs: include common carriers, innkeepers, public utility, employer-employee
relationships
 Unenforceable as between Parties: Did potential P make an informed, voluntary
choice? Does the release have oppressive terms?
 Ex’s: K’s of adhesion with unclear language
 Note also that a few jx’s do not allow parents to waive the rights of children
 NOTE: could be an inherently dangerous risk you sign up for therefore primary
assumption of risk and express assumption go risk claims
 Statutes: legislative determination that participants have expressly assumed risk.
Passed in response to complaintns by business owners that cannot operate business
w/o enforceable waivers, thus providing predictability and ability to plan for
expected losses.
 Ex: OH applies regardless of whether P signed; HI applies if P signed but
negates subjective arguments (didn’t understand what I was doing)
 Implied (Secondary) Assumption of Risk
o Case – Schroyer v McNeal (slip n fall @ hotel)
 Issue: impliedly assume?
 Decision: yes; complete bar to recovery bc this is a contributory negligence jx. She
knew of the risk posed by the ice and snow on the parking lot and sidewalk; she was
fully aware of the danger; and she voluntarily chose to park there and walk on it
o Case – Davenport v Cotton Hope Plantation (stair light)

 Issue: effect of implied assumption on P’s recovery when state has adopted
comparative fault?
 Decision: not a complete bar; Like P’s negligence, will reduce recovery unless “his
degree of fault arising from his conduct equals or exceeds the” D’s fault. Would be
incongruous to absolve D of all liability when have comparative fault rule. That is, it
would be strange to treat careless (negligent) P’s better than careful ones that
voluntarily accept a risk
o Assumption: Implied based on the plaintiff’s conduct in relation to the risk
o Types:
 Unqualified – Focus in on Subjective Assumption of Risk
 P knew of risk that the D’s conduct created
 P appreciated the nature of and extent of the risk
 P voluntarily accepted the risk
 Qualified: Adds P’s Negligence
 P knew of the risk that the D’s conduct created
 P appreciated the nature of the extent of the risk
 P voluntarily accepted the risk
 It was objectively unreasonable for the P to expose himself/herself to risk
 NOTE: qualified version is subsumed in the affirmative defense of contributory
negligence/comparative fault; any P that meets the qualified assumption of risk test
will also be negligent
o General Effect:
 Traditionally, a complete bar to negligence claims (and still is in contributory
negligence jx)
 In comparative fault jx, majority rule is the defense may reduce recovery but is not
complete bar
 Qualified version (which incorporates negligence) can be defense to strict liability
claims
o Public Policy: a P that makes a personal, autonomous choice about risky activities should be
precluded from later seeking recovery for the consequences of the choice
 Mitigation and Avoidable Consequences
o Case – Miller v Eichhorn (backed into out of driveway)
 Mitigation treated as an issue of comparative fault
o Case – Klanseck v Anderson Sales (motorcycle accident)
 Applied direct reduction; P cannot recover for damages that result from
unreasonable failure to mitigate
o Legal Issue: What is the legal effect of a plaintiff’s failure to mitigate the harm (that is, avoid
certain consequences) after the tortfeasor’s negligent act?
 *Note that this is variously referred to as mitigation, avoidable consequences, or
both
o Context: Usually concerns a plaintiff’s failure to obtain medical care
o Procedure: Will treat as an affirmative defense in this course ◦ *But note that some courts
refer to mitigation as a “duty”
o Applicability: Defense applies to intentional and negligent tort claims
o Comparative Fault Approach
 Legal Rule: P’s failure to reasonably mitigate harm is considered together with other
evidence of plaintiff’s fault
 *Note that this would be specified in a statute (Indiana’s statute applies this
rule)
 Type of Test: Balancing test
 Effect on Recovery: Recovery limited to defendant’s percentage of fault; Recovery
barred if above threshold of either 49% or 50% in modified comparative fault
jurisdiction
 Policy Reason: failure to mitigate is just another way in which the plaintiff fails to act
as a reasonable person would
o Causal Responsibility (Direct Reduction Approach)
 Legal Rule: Plaintiff is unable to recover damages for the portion of the harm could
have reasonably mitigated or avoided
 Type of Test: Bright line test that cuts off defendant’s liability for damages resulting
from the failure to mitigate
 Effect on Recovery: Recovery limited to the harm caused by the defendant. P will
usually recover some damages (assuming there is no other reason to reduce the P’s
damages, such as if the P is otherwise at fault)
 Policy Reason: We make the D pay damages that he/she caused; it is not fair for P to
allow the damages to exacerbate and get compensated for those
o Case – Law v Superior Court
 Issue: Should P’s recovery be reduced for failure to anticipatorily mitigate harm by
wearing a seat belt?
 Decision: Failure to wear seatbelt can be considered in the P’s fault. The state’s
comparative fault statute ties fault to cause: the evidence of non-use should reduce
damages for injuries caused by non-use. Recognizes a responsibility of all drivers to
wear seatbelts because the risk of car accidents is always present
o Seatbelt Cases
 Majority Rule (CL and Statutory):
 P’s recovery will not be reduced
 Indiana’s statute allows a defendant in a products liability action involving
seatbelts to assert mitigation as an affirmative defense [which means that
plaintiff won’t be subject to 49% or 50% threshold in modified comparative
fault jurisdictions]
 Missouri’s statute caps the plaintiff’s responsibility at 1%
 Policy Reasons: Failure to wear a seatbelt does not contribute to the accident that
caused the injury; Would let negligent defendants off the hook; Do not want to
recognize an affirmative obligation to mitigate future damages by wearing a seat
belt
 PROCEDURAL REQUIREMENTS FOR COURT ACCESS: Legislatures set time limits by statute for bringing
different types of claims; raised by D’s as an affirmative defense.
 Statutes of Limitation
o Case – Hanley v Citizens Bank of Mass
 Issue: Is P’s negligence claim barred by the applicable 3-year SOL?
 Decision: Barred by SOL. Under the discovery rule, the statute began to run
immediately after the robbery
 *Note that the SOL does not appear to explicitly include the discovery rule, but
courts will interpret the text of the statute to include it

 Reasoning: A reasonably prudent person would have investigated the lack of
response by the bank after the robbery and would not have waited until learning
more at the criminal trial
o Generally: SOL mandates that suit be commenced within set number of years after the
cause of action accrues
 Note that sometimes legislatures lift a SOL for certain types of cases
o Issue: When does a cause of action “accrue” for purposes of the SOL?
o General Rule: If the statute specifically provides the date of accrual, use that date. If not, a
cause of action generally accrues when all elements of the claim have occurred.
o Discovery Rule: SOL does not begin to run until P discovered or reasonably should have
discovered the cause of his/her injuries
 Some states incorporate the discovery rule in the SOL; others read it into the statute
as an exception to the general rule
 *Note that Arkansas does not apply the discovery rule but generally uses the date of
the occurrence (the tortious conduct)
 Case – Kern v St Joseph’s Hospital
 Issue: Is the P’s negligence claim barred by the 3-year SOL
 Decision: Fraudulent concealment is recognized for medical malpractice
actions. Sufficient evidence to raise a material issue of fact on whether SOL is
tolled by fraudulent concealment
 Reasoning: Doctor’s knowledge of wrongful act could be demonstrated by
expert testimony that there was a gross calculation error
 Fraudulent Concealment Rule: SOL is tolled during period in which P is prevented by
D from obtaining knowledge of cause by concealment
 Based on equitable estoppel principles: If prevented P from bringing suit
within statutory period, D should be estopped from asserting SOL as a
defense
 Statutes of Repose mandates that suit be commenced within set number of years of an event,
regardless of whether cause of action has accrued. In effect, the statute cuts off claims—allows
“repose”—after a specified number of years
o Sedar v Knowlton Construction Co
 Issue: Does SOR violate the federal and/or state constitution?
 Decision: the statute does not violate due process or court access because the time
period is not unreasonable or arbitrary nor is it a violation of equal protection
because there is a RB for distinguishing between architects/builders and
occupiers/materialmen
 *Note that other courts have upheld the statute of repose on the grounds that once
a statute of repose runs, there is no legally cognizable cause of action and thus there
is no right to be protected; in contrast, some courts have found the statutes
unconstitutional
o Usually applied to particular types of cases:
 Improvements to real property (46 states—including California and Arkansas)
 Products liability (19 states) Can be combined with a statute of limitations
 Note that some states treat SOR as granting substantive rights to be free of liability,
and will not waive the defense if the D fails to affirmatively plead it
 Minors and Disabled General Statutory Approach: Toll Statute of Limitations

o Most states will toll the commencement of the SOL until the age of majority (18 or 21) or
the disability expires
o But SOL is not tolled if the disability occurs during the limitations period
o MA Variation (Med Mal): 3-year SOL for a minor for med mal
 Exception if under 6 when COA accrues, have until age 9 to bring the claim
 But must file suit within 7 years after the malpractice unless it is based on a foreign
object left in body
o TN Variation (Products Liability): 6-year SOL for products liability claim
 10-year SOR from date of purchase or 1-year SOR from expiration of life of product,
whichever is shorter
o Tolls statute for minors but must bring claim within 1 year after age of majority
 APPORTIONMENT OF DAMAGES
 Joint and Several Liability
o Case – Carolina C & O Railway v Hill
 Issue: Can P recover the full amount of damages from the railway when the lumber
company also contributed to the injury?
 Decision: Yes, joint and several liability - applies when there are indivisible injuries
and also when there are sufficient causes of the entire injury (that is, either is a basis
for joint and several liability). The defendants need not have acted in concert or with
a common plan
o Case – Lacy v CSX Transport
 Issue: Did court abuse its discretion in allowing counsel for CSX to inform the jury
about the consequences of joint and several liability?
 Decision? Yes, Argument is speculative; do not know whether the P would seek the
entire amount from CSX. Argument is also misleading; CSX has the right of
contribution
 *Note that states are split on this issue; in contrast, almost all states inform jury
about consequences of plaintiff’s fault
o Traditional Approach
 Liability Rule: joint and several liability; each D responsible for the entire judgement
 Contribution action: traditionally, D who paid the entire judgment had to bear the
loss. But courts began to recognize right to contribution, D could bring claim against
others responsible for the harm to recover a portion of the judgment
 Basis of apportionment: divide evenly between D’s (each 4 tortfeasors pay ¼
 Risk of insolvent D’s: on other D’s
 Used in contributory negligence jx’s and some comparative fault jx’s
o Case – Sitzes v Anchor Motor Freight
 Issue: what is the method of apportionment in a contribution action given that the
state adopted a modified comparative fault rule?
 Decision: base apportionment on comparative fault bc it is more equitable to base
liability on a party’s degree of fault [trend]
o Modified Approach:
 Rule: Joint and several liability; each D responsible for the entire judgment
 Contribution Action: D’s can bring claim against others responsible for the harm to
recover a portion of the judgment
 Basis of Apportionment: divide by fault
 Risk of Insolvent D: on other D’s.

 Used in some comparative fault jurisdictions
 Several Liability
o Case – Piner v Superior Court
 Issue: Given the state’s several liability rule, how is liability to be apportioned
between D’s in successive accidents when there is an indivisible injury as a practical
matter?
 Decision: apportionment will be based on comparative fault; P does not need to
prove causal damage for each accident; no joint and several liability (only several)
 Reasoning: several liability is based on fault, not on cause of damages. Indivisible
injury from separate occurrences should not be treated any differently than such
injury from the same occurrence
o Modern Approach
 Liability Rule: Several liability. Each D is only responsible for part of judgment
 No Contribution Action: no D pays more than is responsible for. Liability is ideally
apportioned in initial tort suit.
 Basis of Apportionment: divide by fault
 Risk of Insolvent Defendant: on P
 Used in some comparative fault jxs, including Arkansas (see statute in supplement)
 NOTE: in these states there can be exceptions in which joint and several liability is
applied, such as when D’s act in concert or in alternative liability cases
o Multiple D Liability: liability is based on type of harm
 Divisible harm: apply usual tort analysis for each D
 Harm: two or more independent tortfeasors cause distinct harms
 Example: one D negligently broke P’s arm and one D negligently broke P’s leg
 Liability Rule: each tortfeasor pays damages for harm he/she caused
 Indivisible harm: more complicated and focus of this class
 Harm: two or more independent tortfeasors cause a single and indivisible
harm
 Ex:
 Conceptual indivisibility: two D drivers cause accident, P
pedestrian is injured
 Practical indivisibility: two D drivers cause two accidents,
cannot separate when P pedestrian is examined
 Liability Rule:
 Joint and several liability: each D is jointly responsible for the
total amount of damages but may sue other Ds to allocate
damages severally (traditional and modified approaches)
 Several liability: each D is responsible for only the allocated
amount of damages (modern approach)
 Basis of Apportionment: divide evenly between defendants (traditional
approach) OR divide by fault (modified and modern approaches)
o Absent/Immune Actors
 Legal Issue: In apportioning liability, how should courts treat the responsibility of
absent actors (those whose identities are unknown or are not parties to the action)
or immune actors (actors who are known but are immune from liability)?
 Ex: Criminals (unknown identity); Employers (immune under worker’s comp law);
Parent (immune under parental immunity rule)

 Traditional rule: courts do not take into account the responsibility of absent or
immune actors
 Liability Rule: Under joint and several liability, any D is liable for full
judgment and cannot recover the costs of absent or immune actors through
a contribution action
 Risk of Recovery: D’s bear the damages attributable to these actors. D’s
must find and join actors, or will have to pay those damages
 Policy: Prefer to compensate victim for full amount of damages; Supported in
contributory negligence jurisdictions by idea that plaintiff is an innocent
victim while defendants are already at fault
 *Note that some jurisdictions that use joint & several liability consider
responsibility of absent or immune actors only to determine if actor is at
fault for all or none of total
 Modern rule: courts do take into account the responsibility of absent or immune
actors
 Liability Rule: Under several liability, the majority of courts apportion fault to
absent or immune actors in addition to the parties to the action. *But note
that can be exceptions for certain types of actors: e.g., criminals
 Risk of Recovery: P bears the damages attributable to these actors. P must
find and join actors, or will not recover those damages
 Policy: Fairness – D should only be on the hook for his/her share; In
comparative fault jurisdictions, goal is to attribute responsibility to all
involved in accident
 *Note that traditional rule is that plaintiffs do not need to join all potential
defendants in a single action but may instead bring successive suits; some
states now require joinder
 Arkansas Rule
 Liability Rule: requires jury to determine the fault of all persons who may
have liability for the injury, including nonparties
 Requirements for Nonparty Apportionment: P entered into a settlement
agreement with the nonparty, or D has given notice that the nonparty was
wholly or partially at fault in initial or amended pleading; and D has
established a prima facie case of the nonparty's fault
 Apportionment: fault is allocated on a percentage basis for all those found to
have “contributed” to the injury
 Effect of Apportionment: By requiring the jury to consider the responsibility
of nonparties, ensures that each party will only pay for amount at fault; Does
not subject a nonparty to liability in any action and cannot be introduced as
evidence of liability in any action
 Vicarious Liability
 Generally:
o Legal Issue: Can an actor be held liable for another actor’s tortious conduct?
o Legal Rule: Courts will hold actors vicariously liable for another actor’s tortious conduct in
certain contexts
 Note: actors such as employers can also be held directly liable for own tortious
conduct
o Examples: Employer-employee, vehicle owner-driver, retailer-manufacturer, parent-child

o Legal Effect:
 Responsibility of actor for tortious conduct is imputed to vicariously liable actor
 Judgment against actor who committed tortious conduct can be enforced against
vicariously liable actor
 Actor who is vicariously liable may sue actor who committed tortious conduct for
indemnification if allowed in state; some states limit to reckless or intentional
conduct
 Respondeat Superior:
o Legal Rule: Employer will be held vicariously liable for torts of an employee committed
within the scope of his/her employment
o Applies to employees, not to independent contractors
 Note: that employers are held vicariously liable for tortious conduct of independent
contractor who engages in inherently dangerous work, on theory that an employer
has a “non-delegable” duty
 TEST: USE FACTORS FROM SANTIAGO CASE BELOW to determine if employee or
independent K’er
o Policy Reasons:
 Deep pocket: Plaintiff should be able to recover from the deep pocket
 Risk spreading: Rule spreads risk to those who are best able to recover loss from
consumers
 Enterprise risk: Enterprise as a whole should pay for risks it creates
 Risk avoidance: Employer is best placed to minimize risks
o Note: there are special rules for intentional torts
 Scope of Employment:
o Inquiry is whether was acting in course of employment or in personal capacity
 Scope of employment includes “detours” (minor deviations from course of
employment) but not “frolics” (abandonment of course of employment for pursuit
of a personal objective)
 Scope of employment does not include “going and coming” (commuting from
house) except if traveling from and to home is part of “special errand”
o Factor-based test (used in O’Connor v. McDonald’s case) – see below
o Other tests
 R (Second) of Agency test: conduct is of the kind employed to perform; occurs
substantially within the authorized time and space limits; is actuated, at least in part,
by a purpose to serve the employer; and if force is intentionally used by employee
against another, use of force is not unexpected by employer
 The employee’s tortious conduct was foreseeable; risk is “one that may fairly be
regarded as typical of or broadly incidental” to enterprise undertaken by employer
 Case - Trahan-Laroche v. Lockheed Sander
o Issue: Can the employer be held liable under respondeat superior or negligent supervision
theories?
o Decision: Employer could be held vicariously liable if part of agreement regarding provision
of farming equipment and removal of hay (thus incidental to employment). Employer could
be held directly liable if did not exercise reasonable care in supervising plaintiff and
regularly inspecting vehicles when there were several accidents previously
 Case - O’Connor v. McDonald
o Issue: Can the employer be held liable under respondeat superior theory?
o What test does court apply?
 Uses factors: intent of employee; nature, time, and place of employee’s conduct;
work employee was hired to do; incidental acts employer should reasonably have
expected employee to do; amount of freedom allowed the employee in performing
duties; and amount of time consumed in personal activity
o Decision: Jury could find employer vicariously liable; evidence does not clearly show
complete abandonment of special errand
 Case – Santiago V Phoenix Newspaper
o Issue: Can company be held liable for worker’s tortious conduct under respondeat superior
theory?
o What test does the court apply?
 Uses factors: extent of control exercised by master over details of work; distinct
nature of worker’s business; specialization or skilled occupation; materials and place
of work; duration of employment; method of payment; relation of work done to
employer’s regular business; belief of the parties
o Decision: Jury could find vicariously liable; reasonable minds could disagree as to whether
an employee or independent contractor

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Torts

Intentional Torts to Persons

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Intentional Infliction of Emotional Distress

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Trespass to Chattel and Conversion

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Defense of Self, Others, and Property

- No intent, no subjective determination of what P was thinking

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reasonable care to entrants on the land with regard to:

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