TORTS

--“Set of rules regarding compensation for personal injury, harm and property damage that one
party causes another.”

I. Goals of Tort Law

A. Compensation of Injured Victims
B. Deterrence of Unsafe Activities
C. Encouragement of Economic Growth and Progress
D. Legal Administrative Effectiveness and Efficiency
E. Fairness

II. Three Bases of Tort Liability

A. Intentional Torts
B. Negligence—falling below the standard of care that puts others at undue risks of
harm
C. Strict Liability—very narrow to recover without showing fault for unintentional
harm.
i. responsibility is on causation without regard to defendant’s conduct being
at fault
ii. three pockets of strict liability
1. harm by livestock or wild animals (trespassing of animals)
2. abnormally dangerous activities
3. product liability claims
III. Negligence— Restatement (2d) §282 --“any conduct which falls below the
standard established by law for protection of others against unreasonable risks of
harm”, or “unreasonably risky conduct”
A. Prima Facie Negligence
i. Duty
ii. Breach
iii. Causation
iv. Scope of Liability
v. Damages
B. Risk—must evaluate both prongs, although fight is likely to be about
reasonableness
i. reasonably foreseeable—reasonable person would see the risks
1. foreseeability arises out of knowledge (three types):
a. actual knowledge—knowledge that D possessed
b. constructive knowledge—knowledge that D should have
known or had reason to know
Restatement i. should know—a RPP would have seen the risks or
(2d) §12 assumed their existence
ii. reason to know—a RPP would have been able to
discern the risk or infer the risk
ii. unreasonable conduct in light of risks—UTC, was action reasonable?
C. Reasonableness
i. Balancing Risk versus Untaken Precaution
1. Carroll Towing (Hand’s Formula)—B vs PL where B is the
burden and PL is the magnitude of risk, made up of the P-
probability and L-injury inflicted
a. This approach is useful in cases involving economic loss
but is not useful for physical injuries
2. Restatement §291—if risk is foreseeable and magnitude of risk
outweighs the utility of conduct then it is unreasonable
3. Dobbs—if utility (not just $) of making it safer versus magnitude
of risk (likelihood) and the gravity (amount) of risk
4. Economic—accident avoidance or prevention costs ($) versus
accident or harm costs ($)
5. Vetri—untaken precautions (B) versus risk (PL) with emphasis on
the untaken precautions to present safer alternative conduct that
would not cost too much or impair overall utility of D’s activity
ii. Custom
1. normally the RPPUTC standard applies, but custom is a salient
circumstance. Can be used by either side to try and establish the
standard.
2. can take on weightier factor in some jurisdictions and in some
circumstances
 3. a practice becomes a custom when it rises to the level of industry
standards, community standards, to protect from harm, is
convenient, efficient, or economical
4. in medical malpractice cases the custom is the standard of care
iii. Judicial Standards
1. established by judicial standard—Baltimore & Ohio RR v.
Goodman—the holding applied to the specific fact pattern of the
case. To apply it to other cases the analogy must be tight.
2. reason judicial standards are used is to promote efficiency so if
same fact pattern (or simple, tightly analogous) is given then
decision made as matter of law
iv. Statutory Standard of Conduct
1. can be established by legislature
2. can be adopted by courts
D. Standards Of Care—Restatement (2d) §285—lays out four ways of determining
i. Established by Legislature—law speaks directly to the act committed—
often used in product safety standards
ii. Adopted by Court from Legislature—Ferrell v. Baxter—several rules for
application
1. Plaintiff must be in class of people that statute was designed to
protect and harm suffered must be of type that statute was designed
to prevent. (Vetri pp. 139)
2. Restatement (2d) §286—
a. To protect a class of person which includes the one whose
interest is invaded
Favored by P b. To protect the particular interest which is invaded
c. To protect that interest against the kind of harm which has
resulted
d. To protect that interest against the particular hazard from
which the harm results
3. Restatement (2d) §288A—
a. An excused violation of a legislative enactment or an
administrative regulation is not negligence.
b. Unless construed not to permit excuse, the violation is
excused when
i. Violation is reasonable because of actor’s
Favored by D incapacity
ii. He neither knows or should know of occasion for
compliance
iii. He is unable to comply after due diligence
iv. He is confronted by an emergency
v. Compliance would give rise to greater risk
 4. Restatement (2d) §288B—
a. The unexcused violation of an enactment or regulation
which is adopted by the court as defining the standard of
Favored by P care, is negligence in itself
b. The unexcused violation of an enactment or regulation
which is not so adopted may be relevant evidence bearing
on the issue of negligence
5. Effects of adoption of statute for procedural purposes
a. strict—negligence per se (unexcused violations only)
i. negligence per se is NEVER used with a child—the
policy is the incapacity of a child to conform to the
standard of care (Bauman v. Crawford)
ii. some judges have argued against negligence per se
arguing that reasonableness should be up to the jury
to decide
b. presumption of negligence—rebuttable
c. evidence of negligence—take it or leave it
6. Excuses for statutory violation reduces the negligence per se to
evidence that is relevant for consideration. (Ferrell v. Baxter)
minority rule shifts the burden of persuasion to the D, majority
leaves it with P)
a. Incapacity
b. no knowledge or occasion for compliance
c. inability to comply after reasonable diligence
d. emergency
e. compliance involves a greater risk
f. otherwise reasonable under the circumstances
7. Effect of compliance with a statute is evidence of due care but is
not conclusive as to due care since sometimes reasonableness
requires more than following a statute
iii. Established by Judicial Decision—Goodman—usually very narrow
holdings that affect cases with a very similar fact pattern
iv. Applied by a judge or jury—usual application of the RPPUTC—this is the
standard applied in medical malpractice suits
E. Reasonable Prudent Person Under the Circumstances (RPPUTC)—is an
objective standard. Asks what the reasonable conduct would have been. There are
several different categories that introduce subjectivity into standard.
i. Examples of Subjectivity
1. child—reasonable prudent child of similar age, intelligence,
maturity
a. exceptions to this include:
1. inherently dangerous activities—Robinson v.
Lindsay—this is majority rule
2. activity normally reserved for adults—Restatement
(2d) §283A
 b. child versus insane person—policy underlying the child
standard is for an inability to comply due to a diminished
capacity of a child (rule of 7’s). Policy says that someone
has to pay for injuries to P so insane doesn’t get you off the
hook. **possible exception for sudden mental illness
2. elderly people—a circumstantial factor only—unless infirmed then
apply physical incapacity standard
3. blind person—reasonable prudent blind person
4. mental deficiency—RPP standard, caretaker is responsible
5. insane person—majority is RPP standard, Wisconsin, Canada
make exceptions
6. intoxicated people—no exceptions made
7. superior skill—SPLIT—some hold to a higher standard, others
have it as circumstantial evidence (Restatement 2d §289(b))
8. common carriers—this is a salient circumstance, RPP
ii. Excuses for deviation from RPPUTC
1. emergency—SPLIT—some courts allow emergency doctrine
others leave to jury to assume emergency. D has to convince jury
that emergency was:
a. sudden
b. D was not responsible for emergency
c. D acted reasonably UTC.
2. sudden physical illness—sometimes sudden onset of physical
illness is a valid excuse—Hammontree v. Jenner
3. diminished capacity—
a. for D—maybe only for sudden onset—Breunig v.
American Family Insurance (WI) is minority. For
majority see Bashi v. Wodarz
b. for P—contributory negligence—Cooper v. County of
Florence
c. insanity—sudden onset, difficult to quantify
d. mental disability—permanent condition—foreknowledge
of condition

IV. Proof of Negligence

A. Direct Evidence—testimony that is directly observed and that applies directly to
issue trying to be resolved in the case
B. Circumstantial Evidence—no direct facts or testimony relating to the issues in the
case
i. Slip and Fall—often uses circumstantial to avoid directed verdict. It
provides an inference of negligence (specific) and presence of constructive
knowledge of D—Clark v. Kmart
ii. Mode of Operation—minority rule—used in cases with open food
displays. Theory is that allowing self service the store assumes
responsibility of behavior of customers
 V. Professional Malpractice
A. Two Components:
i. Medical performance negligence
ii. Failure to provide informed consent—not to be tested
B. Standard of Care for Medical Performance—usually established by custom
i. Locality rules for getting relevant custom
For GP, all three 1. strict locality—custom in same community
rules could apply, for 2. modified locality—custom in similarly sized community
specialists only 3. national standard—custom of physicians across country
national ii. Evidentiary weight of Custom—is conclusive for establishing standard of
care, any deviation is negligence
1. following custom is not necessarily not negligence if custom is
below the reasonable standard of care.
iii. Sources of Custom—relevant community or national standard
C. Experts in Medical Malpractice—usually required with few exceptions for
“common sense” injuries.
i. Roles for expert testimony
1. establishes the customary standard of care for physician
2. gives opinion on the issue of breach
VI. Duty
A. General Duty—the general duty is a presumptive duty of reasonable care for
foreseeable risks arising from such conduct unless displaced by a limited duty rule.
Macpherson v. Buick Motor Co. or Rudolph v. Arizona BASS Federation
i. Restatement (2d) §302(a)—in general, anyone who does an affirmative
act is under a duty to others to exercise care of a reasonable man to protect
them against unreasonable harm to them arising out of the act (for
misfeasance and pseudo-nonfeasance)
B. Limited Duty—limited duty arises under specific fact patterns. There are several
policy reasons for imposing a limited duty:
i. Allocation of loss—who will bear the loss if a duty is created or denied?
ii. Fairness—was there wrongful conduct, should it be remedied? What does
fairness/justice require?
iii. Deterrence of Accident Avoidance—does creation/denial of duty enhance
deterrence of conduct that involves risks of accidents?
iv. Economic Considerations—will the creation of a duty impose undue
economic burden on class of potential defendants?
v. Administrative Concerns—what impact will creation/denial of duty have
on court system? Can workable rules be implemented?
vi. Legislative Concerns—are there safety statutes/regulations that already
exist? Will creation of duty interfere with legislative scheme?
C. Premises Liability—duty is dependent upon the entrant status on the land in cases
about defects on the land that give rise to injury—American Industries Life
Insurance Co. v. Ruvalcaba. The categories are:
i. Invitee—enters with owner’s permission and for the mutual benefit of
both owner and guest.
1. The duty owed is not a limited duty—RPPUTC—duty to protect
against unreasonable risks of harm which owner knows or should
discover.
2. There is a SPLIT in the authority regarding business invitees:
a. Majority rule—people on premises as long as open to
public and presence is consistent with public purpose—
here business visitors and public invitees are equal in the
duty owed being a RPPUTC
b. Texas rule—is more restrictive in that the public invitee
must have been invited on premises for purpose of buying
goods.
3. There is a SPLIT with regard to ‘open and obvious’ conditions on
the land for invitees:
a. Defendant is not liable for open and obvious dangers.
b. When danger is obvious, landowner is not liable UNLESS
landowner should anticipate harm in spite of
knowledge/openness.
 ii. Licensee—enters with owner's consent for guest's convenience or for
business with someone other than the owner (social guest)
1. The duty owed is limited—not to injure willfully, wantonly, or
through gross negligence AND when owner knows (actual) of
danger to warn or make safe.
2. There is an exception for concealed traps on premises that are
known to landowner but not discoverable to licensee. The
standard of care becomes RPPUTC in these circumstances.
iii. Trespasser—enters without lawful authority, permission, or invitation.
1. The duty is also limited—not to injure willfully, wantonly, or
through gross negligence
2. There is an exception for frequent trespassers where the duty of
care is elevated to the RPPUTC.
iv. Child Trespassers—have a special set of rules because they are children.
These rules only apply to artificial conditions, not natural or obvious ones
(water, fire, moving vehicles). The conditions for landowner liability to
trespassing children are:
1. the place is where a condition exists and the landowner knows or
has reason to know that a child will trespass AND
2. the condition is one that the landowner knows or should know and
realizes or should realize that will involve unreasonable risks of
Restatement death or serious bodily harm AND
(2d) 339 3. children, because of their youth, do not discover condition or
realize the risk involved AND
4. utility of landowner of maintaining condition and eliminating
danger are slight compared to the risk to children involved. AND
5. the landowner fails to exercise reasonable care or otherwise
protect.
v. There is a SPLIT with regard to how the entrant status is applied by the
court:
1. Trichotomy rule—duties owed are wholly dependent upon the
status of the victim with regard to landowner.—minority rule
2. 2/3 abolition rule—Invitee and licensee are treated the same—
with RPPUTC duty whereas trespasser still has a limited duty.—
adopted in 13 jurisdictions, including NC (Nelson v. Freedland)
3. Complete abolition or California rule (Rowland v. Christian) —
here the standard for everyone is the RPPUTC. The entrant status
is relevant to determining foreseeability of harm but is not
determinative.—adopted in 14 jurisdictions
D. Failure to Act—generally, defendant has no liability for failing to act
(nonfeasance) unless a special duty is established or there is an assumption of duty.
i. Definitions:
1. Misfeasance—risk of harm arose out of one’s conduct—duty is to
exercise due care not to create risk of harm
2. Nonfeasance—risks of harm were not created by actor—no duty to
exercise reasonable care to eliminate risks not created by actor
 3. Psuedo-nonfeasance—here is really misfeasance because
defendant actually created risk but failed in acting to prevent harm
to plaintiff.
4. Distinction between misfeasance and nonfeasance is the
participation of defendant in the creation of risk. A failure to act
can be misfeasance (this is the pseudo-nonfeasance situation
above)
ii. Special Relationships—traditional special relationships that gave rise to
duty include:
1. innkeepers/guests
2. common carriers/passengers
3. landowners/entrants
4. sailor/passenger
5. employers/employees
6. jailers/prisioners
7. co-adventurers Farwell v. Keaton
iii. Arguments supporting no duty to act:
1. duty to assist would interfere with liberty of individuals to do what
they choose
2. creation of duty would contradict basic principles of causation
3. imposition of duty undercuts and demeans moral values by
depriving a person of making a purely moral choice to assist
4. creation of duty would create problems with process and
administration of courts
iv. Exceptions to no duty to act:
1. traditional special relationships
2. duty for relationships of dependence/mutual dependence
a. Restatement (2d) 314A(b)
3. required custody relationships or voluntary ones that deprive other
of normal protections
4. voluntary assumption to render aid or protect
a. Restatement (2d) 323(c)—if because of assumption the
victim is worse off or has foregone other help then duty to
exercise care to not unreasonably terminate aid
5. taking charge of helpless plaintiff
a. Restatement (2d) 324(g)—if have begun to aid victim then
cannot place in worse situation by placing in same peril or
creating a new one
6. participation in non-negligent prior conduct that creates risk/injury
7. induction of detrimental reliance on gratuitous promise
8. negligent/intentional prevention of aid by others
9. statutory obligations
a. VT, RI, MN, HI, and WI make it a crime to fail to
reasonably assist a person in peril. This applies if the
potential rescuer has actual knowledge of peril and can
 assist without harm to himself/others. VT carries civil
penalties but other states may adopt statute.
E. Duty to Control—duty to control arises in situations where there is a special
relationships exist. There is no general duty to control.
i. Special Relationships—must exist between the potentially controlling
party and the bad actor OR the controlling party and the victim. This
limited duty was established in the landmark case Tarasoff v. Regents of
University of California. The status of the victim is important for
recovery:
1. readily identifiable victims—those that are specifically named—
Tarasoff-like plaintiffs—most favorable to plaintiff
Dunkle = general public 2. probable victims—not a named victim but highly probable
Cansler = readily 3. foreseeable victims—less than probable victims, also not named
identifiable 4. member of general public—generally no duty is held—best for the
defendant.
ii. Policy reasons for limited duty—public interest in some circumstances
takes precedence over the confidential relationship of doctor/patient,
jailor/prisioner
iii. Duty to warn (special recommendation situation)—duty is triggered by the
misrepresentation of facts that leads to a substantial, foreseeable risk of
physical injury to third person Randi W. v. Murdoc Unified School Dist.
F. Duty to Provide Reasonable Security—in these situations there is a heightened
standard for breach or a corresponding narrow duty rule. The heightened breach
requirement makes it difficult to establish that the harm was foreseeable. There is
also some duty relationship attached to the entrant status of the victim.
i. Foreseeable Criminal Acts: SPLIT in the tests
1. Specific Harm (SH)—no duty unless defendant has knowledge act
Favored by
was about to occur (hard for plaintiff to establish)
Defendant
2. Prior similar incidents (PSI)—must relate to other similar acts on
the premises (difficult for plaintiff to establish and no remedy to
first incidents)
Favored by 3. Totality of Circumstances (TOC)—factors in prior similar
Plaintiff incidents but they are not determinative (majority approach)
4. Balancing Test (BT)—degree of foreseeability of harm vs. duty
burden imposed. (tests outlined in Delta Tau Delta)
ii. Landowner responsibilities—duty to protect invitees from foreseeable
criminal acts (special relationships apply) and duty on commercial
property owners to protect those on their property for business purposes.
G. Duty of Alcohol Providers—generally there is no duty to the intoxicated party
(except a minor).
i. Duties of Social Hosts—generally no duty of social hosts to injured third
parties—exception was Kelly v. Falin and was later limited by statute.
ii. Duties of commercial providers—governed by Dram Shop Laws—that
establish criminal penalties for serving alcohol to minors or obviously
intoxicate persons, may also establish civil liability. If adopt then it
becomes the standard of care (Restatement (2d) §285).
H. Public Entity Duty to Protect Citizens—duty is to all citizens and not a specific
group—stated otherwise “a duty to all is a duty to none”. There must be a special
relationship to trigger a duty to act.
i. Special Relationship Requirements—Cuffy factors
1. assumption by municipality of affirmative duty to act on behalf of
party injured
2. knowledge on part of municipality’s agent that inaction could lead
to harm
3. some form of direct contact between municipalities agent and the
injured party
4. party’s justifiable reliance on municipality’s affirmative
undertaking
ii. Policy Arguments
1. Limited duty: a separation of powers argument—not up to
judiciary to dictate the allocation of resources of a municipality in
terms of police protection, sovereign immunity
2. Kircher dissents—inaction is the same as misfeasance (thus
negligent)—affirmative action was taken towards witnesses and
not followed through with. Also, rigid rules prevented a worthy
plaintiff from recovery. She contacted police through surrogates
and their detrimental reliance caused her harm.
3. Minority argument—focus on whether duty extends to plaintiff as
a member of a particular class (Kircher’s victim of ongoing crime)
I. Emotional Harm—claims for stand alone emotional harm were generally
disfavored because: (1) open ended rules could lead to liability disproportionate to
fault; (2) lead to numerous claims and burdensome liability; (3) limitations are
necessary to preclude trivial claims
i. Ways to inflict emotional harm:
1. negligent infliction of emotional harm
2. intentional infliction of emotional harm (intent or recklessness)
3. parasitic damages—primary physical injury
ii. Types of emotional harm victims:
1. direct victims—some special relationship with tortfeasor and
tortfeasor has assumed duty to victim
a. Conditions for direct victim recovery
i. Special relationship
ii. Assumption of duty
iii. Duty as a matter of law
b. Scenarios for direct victim—
i. Mishandling remains of family member
ii. Misinforming relative about death/illness
iii. Theft of animal??
 2. bystander victims—physical harm is to a third party and victim
witnesses the harm
a. Conditions for bystander victim recovery:
i. Thing factors: (CA rule)
1. plaintiff is closely related to injury victim
2. plaintiff is present at time of injury
producing event and is aware of injury
3. plaintiff suffers serious emotional distress
that is beyond casual bystander and still
within normal range
ii. Clohessy factors: (CT rule)
1. plaintiff must be closely related to victim
2. emotional harm caused by contemporaneous
sensory perception of injury OR arrival at
undisturbed scene soon after
3. injury to victim must be substantial
4. emotional distress must be serious
iii. Relational Requirement—SPLIT
1. Elden v. Sheldon (CA) co-habitation of
heterosexuals doesn’t count—must be
married.
2. Dunphy v. Gregor (NJ) allows co-habitation
relationships when stable and permanent in
nature (heterosexuals in case but possibly
extend to homosexuals)
a. Should be no bright line distinction
between married and unmarried but
should depend on ‘significance and
stability’ of realtionship
3. Coon v. Joseph (CA) no recovery for
lifetime homosexual partners
iii. Rules for Emotional Distress Recovery—SPLIT
1. Texas Rule—no recovery for independent emotional distress—rule
may reflect gender bias against women—Boyles v. Kerr
2. Impact Rule—plaintiff must have suffered some physical injury—
required in Oregon
3. Zone of Danger Rule—plaintiff must have been in zone of danger
of being physically injured
4. Bystander Emotional Harm—Thing/Clohessy factors
5. Direct Victim
6. General Negligence—Camper v. Minor—in TN, MT, HI—
Plaintiff must establish prima facie case for negligence AND have
expert testimony as to severe emotional distress
a. TN only allows general negligence for direct; MT, HI
allows for bystander
VII. Common Law
A. Law of Leeways—doctrine that an appellate court is free to make changes in law
as a need and circumstance dictates to keep law consistent with policy goals and
current societal norms. If a rule is no longer reasonable then it can be overturned by
judges—“the rule follows where reason leads; where the reason stops, there stops
the rule”.
i. Stare Decisis—stand by a decision. Doctrine promotes efficiency in the
courts and allows litigants to know what to expect. Stare Decisis cuts
against overruling precedent.
ii. Precedent—prior decisions by the court that are similar or on point to the
issue at hand. Can be interpreted either broadly or narrowly depending on
the situation.
B. Overruling Precedent
i. For Overruling Precedent
1. earlier decision incorrect when decided
2. earlier decision currently inappropriate because of changed
conditions in society
3. earlier decision is currently incorrect because exceptions have
overwhelmed the rule
4. reliance on earlier decision is unjustified in light of evolving
exceptions
5. statutes or regulations important is background to earlier decision
have been amended in some essential way
ii. Against Overruling Precedent
1. considerable value and efficiency resulting from adherence to
established precedents (stare decisis, evenhandedness, prevents
arbitrariness, reliable)
2. symbol of government of laws and not of mortals is potent force in
society’s respect for the law
iii. Conditions giving rise to overruling precedent
1. court is confident that precedent is so unsound that importance of
abolition outweighs disadvantages in overruling
2. overruling can be done without injury to someone who justifiably
relied on precedent
VIII. Cause In Fact—the establishment of some connection between the negligent
act/omission of defendant and injury or damage to the plaintiff. Must be a
‘reasonable connection’.
A. Types of Causation Analysis—these rules/concepts are context specific. The
analysis will vary according to the type of case (single cause, multiple cause,
competing explanations, alternative liability).
i. “But For Causation”—If the injury would NOT have occurred if defendant
had not been negligent then it IS the ‘but for’ cause. Likewise, if the
injury would have occurred even without defendant’s negligence then it is
NOT the ‘but for’ cause (this is the counterfactual inquiry).
1. The contextual limitation of this type of analysis is that it works
well for single tortfeasors in simple causation situations but fails in
situations where there are multiple tortfeasors or complex
causation analysis.
2. Sowles v. Moore and New York Central RR Co. v. Grimstad—
both examples of but for analysis. The defendant’s negligent act
must be BOTH necessary and sufficient for the injury.
ii. Substantial Factor Causation—inquiry is whether defendant’s negligent
conduct was a substantial factor in causing plaintiff’s injury (necessary but
not sufficient)?
1. In cases where there are multiple tortfeasors or multiple causes
courts reject the ‘but for’ analysis and use the substantial factor
analysis. Other courts throw ‘but for’ out altogether and only use
substantial factor (Mitchell v. Gonzales). Reason is that it is easier
for juries to understand and apply.
2. Sufficiency of Defendant’s conduct as substantial factor—is
usually a jury question. Are asked to compare to a reasonable
person. Would the defendant’s negligent act have an effect that
produced injury to plaintiff that would lead a RPP to consider it a
cause.
a. Danger to Plaintiff when they overstate any given
defendant’s contribution to the cause is that the remaining
defendant’s contribution may not be considered significant
and they may not recover against them. This is sort of like
the argument in Smith v. J.C. Penney Co., Inc.
3. Fire cases—substantial factor analysis is used in fire cases where a
negligent cause merges with an innocent cause to produce injury.
There is a SPLIT in the authority:
a. Jury question on causation when negligently started fire
merges with a non-negligently started fire and either one
could have damaged plaintiff’s property—Anderson v.
Minneapolis, St. Paul & Sault Ste. Marie Ry. Co.—
Minnesota case.
b. No finding of causation against defendant when the second
fire had no known origin but if both were carelessly started
 then allowed finding of causation—Cook v. Minneapolis,
St. Paul & Sault Ste. Marie Ry. Co.—Wisconsin case.
iii. Legal Cause—the conflation of cause in fact and proximate cause into one
concept.
1. Restatement (2d) §431—The actor’s negligent conduct is a legal
cause of harm to another if (a) his conduct is a substantial factor in
bringing about the harm, and (b) there is no rule of law relieving
the actor from liability because of the manner in which his
negligence has resulted in the harm.
B. Proving Causation—in trying to prove causation it is important to isolate the scope
of risks created by the defendant’s conduct in order to show that the type of harm
suffered is normally associated with the negligent conduct of the defendant.
POLICY—enough that wrongdoing enhanced the chance of accident, that it
increased risk in some appreciable manner.
i. Cumulative proof of defendant’s negligence—to show causation must
bring negligence home to defendant and show that their negligent conduct
is the most probable cause of the harm.
1. Tendency of the Evidence—where the negligence of defendant
greatly multiplies the chances of accident to plaintiff and is of a
character leading to its occurrence, the mere possibility that it
might have happened without the negligence is not sufficient to
break the chain of cause and effect between negligence and injury.
(Ingersoll v. Liberty Bank of Buffalo and Reynolds v. Texas and
Pac. Ry)
ii. Alternative Causes—when various possibilities exist for plaintiff’s injury
and are presented by defendant, plaintiff will argue:
1. defendant’s negligence increased the likelihood of the injury from
the accident.
2. negligent conduct of defendant’s is type would ordinarily associate
with this type of injury (scope).
3. in light of factors 1 and 2 (which constitute legal cause), we can
reasonably infer causation being tied to defendant’s negligence
4. under these circumstances, mere possibilities of other causes do
not eliminate the causal link between defendant’s negligence and
injury
5. POLICY—the rule violated by defendant was designed to protect
those in the plaintiff’s position (Reynolds v. Texas and Pac. Ry)
iii. Untaken Precautions—for causation analysis (as opposed to the breach
analysis) plaintiff must show concretely that the untaken precautions
would have altered the outcome. (Phillips v. Perils of Pauline Food
Production, Inc. and Zuchowicz v. United States for positive outcomes;
Nola M. v. University of Southern California and McCarty v. Pheasant
Run for negative outcomes)
1. Burden Shifts to Defendant—Haft v. Lone Pine Hotel—father and
son drowned in hotel pool. Burden was shifted to defendant to
show that having a lifeguard would not have prevented the
 accident. This is only fair to the plaintiff who cannot establish that
a lifeguard would have made a difference since they didn’t have
one.
C. Proving Who Caused Harm—sometimes there are cases where the wrong-doer is
unknown. There are various methods for dealing with cause in fact in these
situations.
i. Alternative Liability—limited factual situations where two (or more)
defendants acted negligently at the same time to cause injury to the
plaintiff. It is unknown who caused the injury.
1. Summers v. Tice—critical elements must be met to benefit from
this holding:
a. Each defendant must have been negligent
b. The harm must have been caused by only one defendant
c. There must be relatively concurrent actions by each
defendant during the relevant time frame
d. There must be potential of similar harm by each
e. Plaintiff must be unable to show which defendant caused
the harm
f. The responsible party must be in court
Not part of Summers g. Defendants must have better access to information
v. Tice and not always h. Must be some sort of relationship among the defendants
necessary 2. If plaintiff can show all critical elements then the burden is shifted
to the various defendants to show that they were not responsible.
If they cannot exculpate themselves then they are held jointly and
severally liable for plaintiff’s harm.
a. Policy is unfair to place such a heavy burden on an
innocent plaintiff to determine which bad actor caused
harm, to deter bad actors, to encourage the other defendants
to expose responsible party. (compare to Ybarra).
3. Where alternative liability doesn’t work—cannot show that all
defendants were in fact negligent but just can’t tell which one was
responsible—Barron v. Martin-Marietta Corp.
ii. Market Share Liability—courts developed concept for situations involving
many defendants where alternative liability won’t work. The policy
reasons behind it are justice, fairness, administrative feasibility, cost of
injury should be borne by wrongdoers rather than innocent victims. There
are various formulations:
1. California—Sindell v. Abbott Labs, Brown v. Superior Court
a. Joinder of D’s—substantial share but not all required.
National market determines each D’s share.
b. Burden of proof—any D that cannot prove innocence is
liable for share
c. Joint/Several Liability—liability limited to each D’s share
(several only) so less than 100% recovery.
 2. New York—Hymowitz v. Eli Lilly
a. Joinder of D’s—not all before court, national market
b. Burden of Proof—if did not market for pregnancy then out,
otherwise no exculpation
c. Joint/Several—several only, share of only those before
court, less than 100% recovery
3. Washington—Martin v. Abbott Labs
a. Joinder of D’s—Only D’s before court, no market share
calculated
b. Burden of Proof—D’s can exculpate themselves by
showing that they did not injure P
c. Joint/Several—unexculpated D’s liable for shares divided
equally to give full 100% recovery, jointly liable
4. Wisconsin—Collins v. Eli Lilly
a. Joinder of D’s—D’s before court, no determination of
market share
b. Burden of Proof—D’s can exculpate by showing did not
injure
c. Joint/Several—liable in proportion to amount of risk
created, several only.
D. Vicarious Liability—one party is liable for the negligence of another party by
reason of some relationship between the parties. The relational contexts giving rise
to vicarious liability are: employer/employee, partnerships, independent contractors,
fictional agency, franchises, and joint ventures.
i. Rationales for Vicarious Liability—
1. accidents are reduced if employers are liable
2. desirable to spread costs of accidents to community
3. employers can control the conduct of employers
4. since employees work is for employer’s benefit it is only fair that
they are liable
5. inevitable accident losses of a business should be considered as
expenses of the business
6. compensation to victims is more sure because employers are more
likely to be able to pay or purchase insurance for employees
ii. Respondeat Superior—employer is liable for the torts of employee as
though the employer was original tortfeasor IF employee committed tort
within the scope of employment.
1. Reason—negligence of employee is imputed to employer
2. Joint and several liability—employer can recover indemnification
from employee
3. Limit of doctrine—employee must have been acting within the
scope of employment—major factual dispute in these cases.
 4. Scope of Employment Rules—
a. Commuting to work—if accident happened b/c employee
was doing something for work then within scope (Cardozo
test).
b. Frolic and Detour—frolic is pursuit of employee’s personal
business; detour is employee’s deviation for personal
reasons that is sufficiently related. Frolic is outside scope,
detour brings back into scope
c. Dual Purpose Rule—like detour part of above rule—is
within scope
d. Emergency Employee Rule—on own time but responding
to emergency of company—must be imminent and grave
danger.
5. Factors in measuring scope—time, place, purpose of conduct,
extent of deviation from authorized methods, employer’s ability to
foresee departure
6. Exception—independent contractors—distinguishing from
employee—
a. Actual control of activities
b. Right to control activities
c. Kind of occupation
Look at factors and see d. Actor engaged in distinct business or profession
how cut for or against e. Skill required
employer/employee f. Custom regarding supervision
relationship g. Decision maker on details of work
h. Supplier of place, materials, equipment
i. Terms of work
j. Method of payment
7. Non Delegable Duties—duties of employer that cannot be
delegated to an independent contractor—the duties are so
important or risks so high that no reason to shift burden away from
employer. Examples—
a. Duties imposed by statute or contract
b. Duty of common carriers to passengers
c. Keep city streets in repair
d. Keep premises safe for commercial purposes
e. Landlord maintain common areas
8. Inherently Dangerous Activities—activities for which the risk of
injury is high so cannot hold contractor exclusively liable.
Examples—
a. Construction of large buildings
b. Maintenance of utility wires
c. Crop dusting
d. Demolition of buildings
e. Building of dams
IX. Scope of Liability (Proximate Cause)—problem in these cases is whether the
defendant’s liability should be cut off even though the defendant’s conduct was both
negligent and a factual cause of the plaintiff’s injury. Is defendant’s conduct
sufficiently related to plaintiff’s injury?
A. Testing for Scope of Liability—
i. Are there unforeseeable consequences? (Polemis, Wagon Mound)
ii. Are there unforeseeable plaintiffs? (Palsgraf)
iii. Are there intervening forces? (McClenahan)
B. Direct Causation—directly traceable consequences without unforeseeable
intervention, no regard for foreseeability of damages or manner of harm.
Polemis—is now a MINORITY rule.
i. There is a significant exception to the directness test accepted by the
courts where the harm is indirect but foreseeable. If the intervening act
was foreseeable then it does not relieve the original tortfeasor from
liability.
C. Foresight of Consequences—the test of reasonable foresight is a criterion for
breach of duty and scope of liability. These two concepts (breach of duty/scope of
liability) are not completely overlapping; foreseeability for scope of liability is
much broader than for breach of duty. Wagon Mound
D. Foresight of Plaintiff—defendant’s scope of liability is confined to cases where the
person harmed is within the general class of persons threatened by the negligent act.
Palsgraf
i. Cardozo’s no duty argument—
1. the type of harm was not foreseeable (property v. bodily)
2. not foreseeable risk to anyone but package holder
3. right to suit is not derivative but must be original (couldn’t sue for
negligence to handling of package)
4. was outside of the range of foreseeable danger
ii. Andrew’s dissent—
1. orbit of danger is extended to all persons who’s harm was a direct
result of negligent act
2. limits role of foreseeability; argues that person who is negligent to
any class of persons is negligent to all persons harmed by act
iii. Two aspects of foresight at scope of liability—
1. plaintiff must be within general class of persons that one may
reasonably anticipate would be affected by defendant's conduct.
2. the general type of harm suffered must be within general class of
harms that one may reasonably anticipate might result from
defendant's conduct.
E. Superseding Forces and Causes—intervening causes are those that are
unforeseeable, or independent of the original risk causing conduct or are
extraordinary. Not all instances of intervening causes are superseding causes. Only
superseding causes cut off liability. Superseding causes are a jury question.
i. Restatement (2d) §435(1)—to carry burden, plaintiff must generally show
that defendant’s negligence was a substantial cause of events. Plaintiff
 need not demonstrate that the precise manner in which the accident
happened, or the extent of injuries, was foreseeable.
ii. McClenahan—illustrates a SPLIT in how courts treat keys left in car—
1. No liability for persons leaving keys in car that was later stolen for
reasons—(best for defendant)
a. Owner owes no duty
b. Theft and subsequent negligence was not foreseeable
c. Even if negligent, actions were not cause because of
intervening, independent actions of thief
2. Some courts reject the actions of thief as automatic superseding
cause (best for plaintiff)
3. Some courts allow liability under certain circumstances when
owner did something to encourage theft. (fact dependent)
iii. Three pronged test for scope of liability—
1. Defendant’s conduct was substantial factor in bringing about harm
2. There is no rule or policy that would relieve defendant from
liability
3. Harm giving rise to action could have been reasonably foreseen or
anticipated
iv. The exact reason for the intervening cause need not be foreseeable, only
the general consequence of harm (Derdiarian). Independent act is
superseding if the harm is different than the type that would be expected
given the defendant’s negligence.
F. Restatement (2d) §435(2)—defendant is not liable for consequences which, looking
backward after the event with full knowledge of all that occurred, would appear to
be ‘highly extraordinary’.—very few courts have been willing to adopt this
approach.
G. Practical Politics of Judge Andrews—because of convenience, of public policy,
of a rough sense of justice, the law arbitrarily declines to trace a series of events
beyond a certain point. It is not logic, but practical politics. (from Palsgraf
dissent)—Defendant argues that liability should be cut off before their act.
H. Shifting Responsibility—Intervening v. Superseding causes. Was the intervening
act so gross that it shifts the responsibility from the original tortfeasor to the
intervening tortfeasor—McLaughlin—heating blocks case—shifting responsibility
worked; Bigbee—telephone booth case—shifting responsibility did not work.
i. Factors—
1. Culpability of intervenor—intentional, criminal, reckless,
negligent, innocent
2. Competence and reliability of person upon whom reliance is
placed
3. Intervenor’s understanding of facts of situation
4. Seriousness of danger
5. Number of persons likely to be at risk of danger
6. Length of time elapsed between conduct of parties
7. Likelihood that proper care will or will not be used
8. Ease with which each of the parties can take precautions
I. Other Proximate Cause Cases—
i. Marshall v. Nugent—passenger of disabled vehicle struck while trying to
warn oncoming traffic—claim against first negligent driver
ii. Gorris v. Scott—custom of penning sheep to avoid disease, sheep
drowned in storm b/c not penned up—claim against boat operator
iii. Bak v. Burlington Northern, Inc—plaintiff died from OD on painkillers
from falling down stairs—jury question on scope
iv. Ventricelli v. Kinney System Rent A Car, Inc.—plaintiff rented car and
trunk flew open while driving, stopped to fix was hit by negligent driver—
not type of harm foreseeable from defective trunk latch
v. Firman v. Sacia—3 year old injured in car accident, grew up and shot
plaintiff—held defendant not liable
vi. Dahlstrom v. Shrum—pedestrian hit by flying body that was thrown by
car. Judgment for defendant
vii. McGuire v. Lloyd—driver broke down but failed to pull off road, driver of
car behind who had stopped was killed when rear ended by truck—
original driver not liable b/c superseding cause
viii. Rikstad v. Holmberg—wrongful death, decedent killed while sleeping in
tall grass when car drove through field—jury question on scope
ix. No recovery for person injured in car accident (left with limp) who could
not escape mugging later on.
x. Landowner placed rat poison all around at request of tenant, poison
explodes, injuring cook on premises—no recovery against landowner.
J. Advocacy for Proximate Cause—the fight is likely to occur when the
consequences are neither typical nor freakish—the unusual details will be arguably
significant—if significant then consequences are unforeseeable, if insignificant then
consequences are foreseeable.
i. Plaintiff’s framing of Argument—try to persuade that the unusual aspects
of case are insignificant details
ii. Defendant’s framing of Argument—try to convince that freakish details
are a prominent and significant part of the case
K. Exceptions to Foresight—
i. Eggshell Plaintiff/Medical Complications—exception to foreseeability of
consequences test found in Wagon Mound. Here the defendant takes the
plaintiff as they find them.
1. Cases—
a. Association of Retarded Citizens-Volusa v. Fletcher—boy
with seizures nearly drowns in pool then develops
respiratory condition that leads to death
b. Pace v. Ohio Department of Transportation—man hits
finger in accident but has severe consequences because of
pre-existing medical conditions.
i. Avoidable Consequences Rule—if after injury
plaintiff fails to mitigate damages then can reduce
award—does not defeat liability.
 c. Steinhauser v. Hertz—unexpected harm was psychological
(schizophrenia) did accident cause or merely aggravate.
d. Bartolone v. Jeckovich—after accident plaintiff has
delusions that body is falling apart—qualifies under
eggshell.
ii. Rescuer Rule—plaintiff is injured rescuing someone who was injured as
result of defendant’s negligence. The intervention is foreseeable so the
harm to plaintiff is inside scope.
iii. Criminal Conduct—third party criminal activity typically severs chain of
causation, EXCEPT when activity was foreseeable
iv. Suicide—if defendant’s negligence leads to suicide because of irresistible
impulse then not superseding cause. There is a SPLIT as to whether there
can be intervening time between act and suicide.
L. Analyzing Scope of Liability—
i. Existing exceptions to foresight
ii. Shifting Responsibility
iii. Policy
iv. Foresight analysis—unforeseeable consequences, unforeseeable plaintiffs,
superseding causes?
X. Damages—what legally recognized losses has plaintiff incurred to date and what
losses will be incurred in the future—what is the HARM?
A. Three Types of Damages
i. Compensatory—common in negligence cases
ii. Nominal—no actual harm yet but trying to protect a right (trespass action
to break adverse possessor’s time)
iii. Punitive—only for recklessness and intentional torts
B. Pure economic damages—economic loss that does not flow from the invasion of a
legally protected interest so no cause of action.
C. Two concerns for damages—
i. Are certain types of damages appropriate?
ii. Is the damage award excessive?
D. Compensatory Damages—
i. Pecuniary damages—those that can be easily calculated b/c are loss of
money. Can be past/future earning losses or past/future medical costs.
ii. Non-pecuniary damages—more difficult to quantify. Includes—
1. pain/suffering
2. loss of convenience
3. physical impairment
4. disfigurement
5. loss of consortium
6. loss of enjoyment of life
iii. Compensatory Damages as a Trojan Horse—because of cap to punitive
damages or because not available (negligence action) juries will often
award huge non-pecuniary damage awards to punish defendants. Good
lawyers will advocate for large compensatory awards since they are not
subject to income taxes.
iv. Pain and Suffering—recovery often requires the testimony of medical
experts to speak to sensation (pain) and mood (suffering) of victim.
Victim and relatives or co-workers will also often testify.
1. Pain and Suffering—requires that the victim have been conscious
before death—no recovery if in coma—Williams v. City of New
York
2. Loss of Enjoyment of Life—sometimes considered as a subset of
pain and suffering, sometimes separate, injury must be
permanent—SPLIT as to the requirements—Eyoma v. Falco
a. Refuse any recovery for loss of enjoyment of life
b. Loss of enjoyment is factored into the general damage
award for pain and suffering—
i. Consciousness is immaterial
ii. Consciousness is required
c. Allow separate and distinct claim for loss of enjoyment of
life.
 3. Actions by victims family—
a. Survival actions—beneficiary is estate, sue for any
damages victim would have had if living
b. Wrongful death—beneficiary of deceased, sue for lost
earning power, husband, wife, child, usually testimony
from economics expert as to earning potential.
4. Sherrod—argued in wrongful death action that hedonic damages
(loss of enjoyment) are separate from pain and suffering—
MINORITY
5. Contingency fees—attorneys that take cases on contingency basis
usually take their fees from pain/suffering awards and collateral
windfalls.
E. Collateral Source—payments from insurance that covers loss from damages—
does not reduce award for plaintiff because was payment for services paid for
(insurance premiums). This is an exception to the general rule that damages in tort
should be compensatory only (only enough to make plaintiff whole) and not to give
them a windfall.
i. Gibney—no damages for daughter’s gratuitous nursing services (bad for
P)
ii. Kaiser—plaintiff could recover when nursed by wife/daughter (good for
P)
F. Punitive Damages—
i. Restatement (2d) §908—damages other than compensatory or nominative
that are awarded against a person to punish him for his outrageous conduct
and to deter him and others like him from similar conduct in the future.
ii. Juries may consider—
1. character of defendant’s act
2. nature and extent of harm to plaintiff that defendant caused or
intended to cause
3. wealth of defendant (to punish)
iii. Goals of punitive damages—
1. punish defendant
2. deter defendant from acting in similar manner
3. deter others from acting in similar ways in future
iv. Controversial because of subjective nature—many states (about ½) have
placed caps of some kind on punitives
1. State-specific caps—
a. Maryland--$350,000 on non-economic damages
b. California--$250,000 on non-economic damages when
defendant is health care provider
2. Supreme Court 9:1 ratio ‘cap’—punitives cannot exceed a 9:1 ratio
of compensatories—BMW v. Gore but can be higher if extreme
circumstances—State Farm Insurance v. Campbell (but awards
must still be reasonable)
v. Requires a showing of bad intent on part of defendant (recklessness or
intent)
 vi. Some states require a clear and convincing show of proof rather than just
preponderance of evidence
vii. Three guideposts for evaluating punitive damage awards— State Farm
Insurance v. Campbell
1. degree of reprehensibility of defendant’s conduct
2. disparity between the actual or potential harm suffered by plaintiff
and the punitive damages awarded
3. difference between punitive damages awarded by the jury and the
civil penalties authorized or imposed in comparable cases
 XI. Defenses—plaintiff has done something wrong—what effect does this have on
case? Defenses relating to conduct of plaintiff—
A. Contributory Negligence—only available in a severe minority of states, acts as a
complete bar to recovery when plaintiff has contributed in some way to their
injuries. The defendant has the burden to establish the prima facie case for
negligence of the plaintiff.
i. Hoffman v. Jones—best argument for plaintiff against contributory
negligence being a complete bar and the adoption of comparative fault.
ii. Seat belt use and contributory negligence—there is a SPLIT in how lack
of seat belt usage should be treated—
1. May reduce plaintiff’s damages—Spier v. Barker (NY)
2. Not a factor in most cases, but relevant to causation in
‘crashworthiness’ cases where manufacturing safety defect is being
brought up—General Motors Corp., v. Wolhar (DE)
3. Failure to wear seat belt cannot be considered contributory
negligence—Amend v. Bell (WA)
B. Comparative Fault—found in the majority of states, plaintiff’s damage award is
reduced by their proportion of the fault. Comes in three types—
i. Pure—found in 13 states, plaintiff can recover no matter what their
percentage of fault (up to 100%), their damages are simply reduced by
their percentage of fault.
ii. Modified 50%—found in 21 states, if plaintiff’s percentage of fault
exceeds 50% then they are barred from recovery. Otherwise damages
reduced by their percentage of fault.
iii. Modified 49%—found in 11 states, if plaintiff’s percentage of fault
exceeds 49% then they are barred from recovery. Otherwise damages
reduced by percentage of fault.
C. Assumption of Risk—General rule is that a plaintiff that voluntarily assumes a risk
of harm arising from the negligent or reckless conduct of the defendant cannot
recover from such harm—Restatement (2d) §496(A) Falls into two categories;
express and implied.
i. Has four basic subtypes—Restatement (2d) §496(A)
1. Contractual—express, usually found in contracts, does not cause
problems—Complete bar in all states, where contract is valid—P
No duty is owed must argue that contract wasn’t valid.
to the plaintiff 2. Relational—implied, plaintiff has some relationship with
defendant that relieves them from liability (spectator in baseball
stadium)
3. Reasonable—implied, plaintiff knows of risk created by
defendant’s negligent conduct but decides to go ahead anyway,
weighing utility of conduct against risk, cases turn on whether
plaintiff’s actions were truly voluntary
4. Unreasonable—implied, most typical, plaintiff encounters risk
that was unreasonable and proceeds anyway,
a. overlaps somewhat with contributory negligence—
 difference is here is subjective standard—did plaintiff
actually know of risk whereas contributory negligence has
an objective standard of a RPPUTC.
ii. Utility—Assumption of risk can be used as a defense for reckless and
cases where defendant is subject to strict liability whereas contributory
negligence cannot.
iii. Procedural effects—SPLIT
1. Complete bar for plaintiff’s recovery
2. In states with comparative fault
a. Abolished use of AR and treat as fault factor
b. Still allow AR to be considered
iv. Defendant’s burden—
1. Plaintiff had actual knowledge of risk
2. Plaintiff had appreciation of risk
3. Plaintiff voluntarily exposed themselves to risk