Negligence Rules Outline

Negligence..............................................................................................................................3
Duty........................................................................................................................................3
Risk Creation Rule..............................................................................................................................3
No Duty to Rescue..............................................................................................................................3
Five Affirmative Duty Exceptions to No Duty to Rescue.....................................................................3
Special Relationship...............................................................................................................................................3
Voluntary Promise of Aid......................................................................................................................................3
Created Risk where P Required Aid (tortiously or not).........................................................................................4
No Duty Based ONLY on Public Policy................................................................................................4
Dram Shop Acts..................................................................................................................................4
Landowner Duty.................................................................................................................................4
Trichotomy............................................................................................................................................................4
Reasonable Person + Trespasser...........................................................................................................................5
Attractive Nuisance............................................................................................................................5
Business Owners to Patrons...............................................................................................................5
Negligent Infliction of Emotional Distress..........................................................................................6
Near Miss...............................................................................................................................................................6
Bystander..............................................................................................................................................................7
Supported by another tort....................................................................................................................................7
Rowland Factors....................................................................................................................................................7
Economic Harm..................................................................................................................................8
Breach.....................................................................................................................................8
Standard of Care: What kind of reasonable person standard applies?...............................................8
REASONABLE PERSON...........................................................................................................................................8
EMERGENCY..........................................................................................................................................................8
CHILD.....................................................................................................................................................................8
MENTALLY DISABLED.............................................................................................................................................9
PHYSICAL DISABILITY.............................................................................................................................................9
SPECIAL KNOWLEDGE OR SKILLS...........................................................................................................................9
Was the Behavior Reasonable?..........................................................................................................9
HAND FORMULA...................................................................................................................................................9
Legislature Decides Reasonable Behavior?.......................................................................................10
NEGLIGENCE PER SE............................................................................................................................................10
Circumstantial Evidence Proves Breach?..........................................................................................10
RES IPSA LOQUITUR.............................................................................................................................................10
Breach SOC Counter Arguments.......................................................................................................11
Causation: Cause in Fact........................................................................................................11
Cause in Fact....................................................................................................................................11
Cause in fact.......................................................................................................................................................11
General/Specific...............................................................................................................................11
Loss of Chance..................................................................................................................................11
Multiple Causes OR Multiple Defendants.........................................................................................11
“Two-Fire” Problem.............................................................................................................................................11
Alternative Liability (Summers v. Tice)................................................................................................................12
Market Share Liability (DES)................................................................................................................................12
“Concert of action” Theory.................................................................................................................................13
“Industry-wide liability” or “enterprise liability..................................................................................................13

Causation: Proximate Cause..................................................................................................13

Scope of the Risk..............................................................................................................................13
Foreseeability/Type.........................................................................................................................13
Genus (Lord Hoffman)......................................................................................................................13
Forces Unleashed.............................................................................................................................14
Causation: Proximate Cause Limitations................................................................................14
Eggshell P rule.....................................................................................................................................................14
Eggshell Psyche rule............................................................................................................................................14
Intervening Superseding Cause:..........................................................................................................................14
Mere Intervening Cause:.....................................................................................................................................14
Third Party Intentional or Criminal Acts:.............................................................................................................15

Damages (Harm)...................................................................................................................15
Medical Malpractice..............................................................................................................16
Duty: Informed Consent......................................................................................................................................16
Standard of Care: Physician and Hospital.........................................................................................16
Defenses to Liability..............................................................................................................16
Contributory Negligence..................................................................................................................16
Last Clear Chance................................................................................................................................................17
Comparative Negligence: Pure/Modified.........................................................................................17
Pure Comparative Negligence.............................................................................................................................17
Modified Comparative Negligence......................................................................................................................17
Multiple Tortfeasors in Modified Comparative Jurisdiction...............................................................................18
Assumption of the Risk (AOR) (does not require negligence)...........................................................18
Express AOR.........................................................................................................................................................18
Primary Implied AOR...........................................................................................................................................18
Secondary Implied AOR.......................................................................................................................................19
Mitigation of Damages.....................................................................................................................19
Multiple Parties: Vicarious Liability (status, not fault)......................................................................20
Employer-Employee (intentional tort not w/in scope).......................................................................................20
Independent Contractor......................................................................................................................................21
 Apparent Agency (if patient believes).................................................................................................................21
Joint Enterprise...................................................................................................................................................22
Automobile Consent............................................................................................................................................22
Indemnity............................................................................................................................................................22
Imputed Contributory/Comparative Negligence................................................................................................22
Apportionment, Joint and Several, Contribution................................................................................................23

Negligence
Negligence occurs when the defendant had a duty to act as a reasonable person exercising
ordinary care under the circumstances, the defendant’s failure to exercise reasonable care
breached that duty, the defendant’s conduct was both the cause in fact (but-for defendant’s
conduct, P would not be injured) and proximate cause (cause within the defendant’s scope of
liability), and P suffered damages as a result. Negligence must be both the general cause (the
breach of duty is capable of causing the injury) and the specific cause (plaintiff was injured by
the negligence).

Duty
Risk Creation Rule
An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk
of foreseeable physical harm. The plaintiff must be in the zone of danger in order for the
defendant to owe a duty. (i.e., both P and harm must be foreseeable) Policy: you are responsible
for your actions and the way you conduct your actions.

No Duty to Rescue
One generally owes no duty to warn, protect, or rescue another from a risk created by some other
source. Policy: Takes a great deal more to justify inaction where individual welfare will conflict
with social good  “even freedom has its costs”

Five Affirmative Duty Exceptions to No Duty to Rescue

Special Relationship
An actor in a special relationship with another person owes a duty of reasonable care
to the other person with regard to risks posed that arise within the scope of the
relationship.
 common carriers, innkeepers, possessors of land who hold it open to the
public, and persons who have custody of another person who is deprived of
normal opportunities of self-protection (parent-child). Affirmative duty, under
certain circumstances, can be placed on employers. (RS 3rd)

Voluntary Promise of Aid

Once someone, who was under no duty to aid, voluntarily comes to the aid of person,
they must proceed with reasonable care and cannot leave the person in a worse position.
Policy: Someone might see you are starting and then not rescue.
 Abandoned rescue rule: If leave in extreme peril, have to be reasonable and get them
out. (only applies when you, yourself are not at risk of serious harm in rescuing the
person) (RS 3rd )

Created Risk where P Required Aid (tortiously or not)

If the instrumentality that caused P’s injury is in D’s control, P is helpless and in danger,
and a reasonable person would recognize the need to prevent further harm to P, D is
responsible for the enhanced injuries that are the result of D’s failure to render aid. This
duty applies regardless of the intentional or innocent nature of D’s original misconduct.
Negligence does not absolve D from liability, can consider comparative negligence (RS
3rd view).

Special relationship with a third party, who caused the harm to P

An actor in a special relationship with third party who caused harm to P owes a duty
of reasonable care to P with regard to risks posed by the third party that arise within the
scope of the relationship.

A Statutory Duty
A private right of action will be available if: P is a member of the class the statute was
created to protect, it Promotes the legislative purpose (Objective of legislature and
Promotes that objective), and it is consistent with legislative scheme.

When is this test used over negligence per se? When the injury is not a direct injury
from an omission (Perry case) and because of the risk of ruinous liability (Perry case).

No Duty Based ONLY on Public Policy

(1) Ruinous and Limitless Liability
(2) Interference with accepted standards of social behavior (i.e. social gatherings and social
relationships are regarded are regarded as important within society)

Dram Shop Acts

In contrast to a social host, commercial businesses may be held liable for serving alcohol to
intoxicated patrons or for serving patrons to the point of intoxication. (pg. 424 n.4) (TX HAS
THIS!!)

Landowner Duty
Trichotomy
A landowner owes a duty to warn, inspect, and repair dangers the landowner knows or
should know to an invitee. An invitee is a visitor (1) with permission to enter and in
whose visit the landowner has a material interest, OR (2) invited as a member of the
public for a purpose for which the land is held open to the public. A landowner owes a
duty to warn of known dangers and not be willfully or wantonly negligent to a licensee,
an invited social guest. A landowner is under no duty to exercise reasonable care to a
trespasser, an entrant without permission, to make the premises reasonably safe, warn of
hidden dangers, or conduct activities on the premises so as not to endanger the trespasser.
 A landowner’s immunity from liability to a trespasser does not extend to willful or
wanton negligence or intentional conduct. Policy: owner of property is entitled to assume
that members of the public will not interfere with property if there is no implied
invitation.

A landowner owes a duty to warn of known dangerous artificial conditions and

not to be willfully or wantonly negligent to discovered trespassers.

A landowner owes a duty not to be willfully or wantonly negligent to a

gratuitous licensee, an entrant who is permitted to enter land without invitation.
(example: taking a short cut)

In a minority of jurisdictions, a landowner does not have a duty to warn of open

and obvious dangers.

Reasonable Person + Trespasser

Landowners and occupiers have a duty to exercise reasonable care in the maintenance of
their premises for the protection of lawful visitors. A landowner is under no duty to
exercise reasonable care to a trespasser, an entrant without permission, to make the
premises reasonably safe, warn of hidden dangers, or conduct activities on the premises
so as not to endanger the trespasser. (Limitation: Owners and occupiers do not become
insurers of their premises. It is not intended that they undergo unwarranted burdens
maintaining their premises).

Attractive Nuisance
A landowner is liable for harm to child caused by an artificial condition on the land if the (a)
possessor knows or has reason to know that children are likely to trespass, (b) possessor knows
or has reason to know that condition involves an unreasonable risk of death or serious bodily
harm to trespassing children, (c) children are ignorant of the risk or danger because of their
youth, (d) utility to possessor of maintaining the condition and the burden of eliminating the
danger are slight as compared with the risk to children involved, and (e) the possessor fails to
exercise reasonable care to eliminate the danger or otherwise protect the children.

An adult who attempts to rescue the child from an attractive nuisance assumes the status of
the child and is owed a duty of ordinary care by the property owner.

*KEY element is foreseeability!!!

*if child is over 12, this will probably not apply (courts not likely to hold child under
the age of 5 negligent)

Business Owners to Patrons

Business owners have a duty to implement reasonable measures to protect their patrons from
criminal acts when those acts are reasonably foreseeable to the business owner. Generally, there
is no duty to protect others from the criminal activities of third persons.
The BPL formula balancing test: the foreseeability of harm [(P)] and the gravity of harm [(L)]
must be balanced against the commensurate burden imposed on the business to protect against
that harm [(B)]. If B<PL, the business breaches its duty to the customers.

Foreseeability: existence, frequency, and similarity of prior incidents. Other factors:

location, nature, and condition of the property

Reasons supporting rule: (1) must take economic and social impact into account when
considering if businesses owe a duty, (2) businesses are not generally responsible for the
faults of the community, and (3) business owners are in the best position to appreciate the
risks on their premises.

Negligent Infliction of Emotional Distress

Fact patterns for NIED: Very horrible— mishandling of a corpse, false communication
that someone is dead or false notification someone is dead, miscommunication about
serious medical injuries

Near Miss
Where negligence creates the potential of but no physical injury, a defendant owes a duty if: 1) P
within the “zone of danger” – almost being physically injured; 2) a fright from a reasonable fear
of immediate personal injury; and 3) P’s emotional harm is corroborated by physical symptoms
(better if with expert testimony).
 Eggshell psyche: when P’s suffering goes beyond a reasonable fear, D will be liable only to the extent that
P’s physical response to the emotional trauma was within the normal range of ordinarily sensitive persons.
D is not liable for unforeseeable physical consequences.
 physical symptoms
o many jurisdictions interpret this broadly and require that emotional harm be serious enough to
result in diagnosable psychological injury. A nervous breakdown or prolonged symptoms that
seriously interferes with P’s ability to have a normal life = can be physical injury.
 Generally, what is not a physical injury or bodily harm- inability to sleep, nausea, loss of
appetite, and dizziness
o Where courts feel uncapable of controlling frequency and scope of a category of emotional
harm, and do not feel they can cab the evidentiary concerns, will not uphold a duty.
 HORRIBLENESS PLAYS A ROLE!
o Liability seems to arise where the facts are particularly horrible to P. Cases do not turn on D’s
culpability/foreseeability of potential harm.
 P was in an airplane falling out of sky for 34,000 feet, pilot regained control of plane but
continued to shake for 40 min. vs. P saw airplane crash nearby. Liability will be upheld
where P was in plane but not where P saw plane.
 Toxic Tort Situations
o P brought claim for fear of cancer after being exposed to asbestos. P was not ill and had no
physical symptoms. Court denied saying mere exposure does not = physical impact. Most courts
would uphold if physical symptoms. And, if P has asbestosis then court might uphold claim for
fear of mesothelioma.
o P was stuck by a needle negligently discarded by doctor. Court held that P could recover for
damages that would be experienced by a reasonable person with reasonable knowledge about HIV
under the circumstances. Limited recovery to time between exposure and test. (limited recovery)
Continued distress after repeated negative test was not permitted.
  Most require proof P was actually exposed to virus (similar to zone of danger analysis).
Courts say that reasonable fear of possibility is not enough. Some courts say P has to face
contracting HIV exposure is not enough.

Bystander
If the plaintiff watched a loved one die/seriously hurt, the defendant owes a duty if: 1) the death
or serious physical injury of another caused by D’s negligence; 2) a marital or intimate, familial
relationship between P and the injured person; 3) observation of the death or injury at the scene
of the accident; and 4) resulting severe emotional distress.
 Most bystanders in situations cannot recover. The courts are scared of endless
liability. Courts are reluctant to allow just everyday emotional harm to be a cause of
action.
 Canadian daredevil was hoisted up to the astrodome in a barrel. He will go from barrel
into big barrel of water on the floor of the astrodome. He missed the bucket of water and
he fell on concrete floor and died. Imagine that prof has taken 7-year-old child to see it.
35,000 people saw it. Do I have a cause of action. There has to be 5-6 people who were
seriously damaged.
o NO RECOVERY. They could not recover because they were not related to the
victim.

Supported by another tort

A plaintiff may recover mental anguish damages only in connection with D’s breach of some
other legal duty. (Boyles, pg. 532) (RULE IN TEXAS)
 Court says that an overly broad independent cause of action that would encompass other
cases involving merely rude of insensitive behavior, is not necessary to allow
compensation in a truly egregious case. Court was scared that allowing this cause of
action would open the door to fraudulent claims and it would not able to cab the holding.
o IIED – 46 RS 3rd: An actor who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional harm to another is subject to liability for
that emotional harm and, if the emotional harm causes bodily harm, also for the
bodily harm.

Rowland Factors
In considering the existence of "duty" in a given case, several factors require consideration
including: (1) Foreseeability of harm to P; (2) Degree of certainty that P suffered injury (degree
of horribleness plays a role); (3) Closeness of the connection between D’s conduct and the injury
suffered (Direct or indirect injury); (4) Moral blame attached to D’s conduct; (5) Policy of
preventing future harm; (6) Extent of burden to D; (7) Consequences to the community of
imposing a duty to exercise care with resulting liability for breach; and (8) The availability, cost,
and prevalence of insurance for the risk involved. (Catsouras Police officers showed picture of
decapitated girl)
Economic Harm
No duty to purely economic harm in the absence of physical harm; a contractual relationship;
or some other special relationship, and the existence of a special relationship will be determined
largely by the extent to which the particular P is affected differently from society in general.
(limited probably only to commercial fishermen.)

Non-stranger cases: If there is a contract between the parties, or they are indirectly connected
through a market transaction (string of contracts), the majority of jurisdictions bar recovery
because they could have contracted around it. (AC in building breaks & tenant’s things are
damaged)

Stranger cases: If there is no connection between the parties, there is no liability for pure
economic loss – although they could not contract for it. Justification: “fear of unlimited and
unpredictable liability.”

Policy for Rule: If there are no finite boundaries to liability, society will suffer injustice. If
recovery of just economic loss was allowed in situations for pure economic loss (if no
exception), there would be no boundaries to litigation. If the ill effects of negligence could be
followed down the chain of results to the final effect, it would be a problem. (big business hurt,
little business hurt, employees hurt but little business cannot pay employees… LIMITLESS
LIABILITY).

Breach
Standard of Care: What kind of reasonable person standard applies?
REASONABLE PERSON
A reasonable person is judged by an objective standard both with respect to judgment
and to the knowledge that a reasonable person would have under the circumstances.

EMERGENCY
For a reasonable person confronting an emergency of NOT his/her own making, the fact of
an emergency and the consequent need for speedy action will be considered.

CHILD
A child will be held to a standard of care of a reasonable child of like age (limited to under
18 but likely over 5), intelligence (considers mental or emotional disability), and
experience under the circumstances. The law permits a subjective evaluation of these
factors based on evidence for the individual child.
Exception: A child may be held to an adult SOC when the child engages in an adult
activity, a dangerous activity, and/or an activity requiring a license measuring
competency (not just for the purpose of making a profit). The greater amount of
these factors being present, the less likely that the child will have a negligence
exception.
 MENTALLY DISABLED
A mentally disabled person is held to the same general SOC of a reasonable person
unless the actor is a child.

Exception: A mentally disabled person may not owe a duty to his/her caregiver, given
the special relationship and policy considerations.
(1) Allocates losses between two innocent parties to the one who caused or
occasioned the loss; (2) Provides incentive to those responsible for people with
disabilities and interested in their estates to prevent harm and “restrain” those
who are potentially dangerous; (3) Removes inducements for alleged tortfeasors
to fake a mental disability in order to escape liability; (4) Avoids administrative
problems involved in courts and juries attempting to identify and assess the
significance of an actor’s disability; (5) Forces persons with disabilities to pay
for the damage they do if they “are to live in the world.”

PHYSICAL DISABILITY
A physically disabled person is held to the standard of care of a reasonable person with
the same physical disability under the circumstances. The person must consider the
underlying disabilities when undertaking various activities. (could apply to an old person
aware of infirmity)

SPECIAL KNOWLEDGE OR SKILLS

A person with special knowledge or skills is held to the standard of care of a reasonable
person with the same special knowledge under the circumstances.
This higher standard is about knowledge and experience, not a question of judgment.
You have to have the judgment that everyone has when they know that a rick of hay
can spontaneously combust. We would be held to a lesser standard because we do
not know about the rick of hay.
NOTE: [Special knowledge and skill] is one of the circumstances to consider when
assessing negligence. It is not the case that people with special skill are held to a
higher legal standard than that of a reasonable person under the circumstances.

Was the Behavior Reasonable?

HAND FORMULA
The BPL/Hand Formula may be used to determine breach: B is the burden of taking
precautions that would avert the accident; P is the probability of the accident's occurring;
L is the magnitude of the loss if an accident occurs. If B<PL, D falls short of meeting the
SOC.

Here, B is …, P is …, L is …, B is most likely less than PL. Therefore, D breached his

SOC to M.
CUSTOM COUNTER ARGUMENT!
Legislature Decides Reasonable Behavior?
NEGLIGENCE PER SE
When a defendant commits an unexcused violation of a statute, negligence per se
attaches if: (1) the statute establishes specific additional standards of care beyond that of
behaving as a reasonable person, (2) the plaintiff is within the class of persons intended to
be protected by the statute, and (3) the damage suffered by the plaintiff is within the type
of harm the legislature sought to avert.

Additional considerations a court may use in deciding whether or not to impose

negligence per se include: if the statute (1) Is the statute the sole source of any tort duty?
(2) Clearly defining the required conduct? (3) Imposes liability without fault? (4) Would
result in ruinous damages/liability? (5) Is P’s injury a direct or indirect result of the
violation?
*if does not clearly define, court probably will not attach negligence per se
*statute imposing strict liability is an argument against negligence per se
*indirect relationship between violation of such a statute and P’s ultimate injury is
a factor against imposing tort liability

Negligence per se may be excused when: (1) the violation is reasonable in light of the
actor’s childhood, physical disability, or physical incapacitation; (2) the defendant
exercises reasonable care in attempting to comply with the statute; (3) the defendant
neither knows nor should know of the factual circumstances that render the statute
applicable; (4) the defendant’s violation of the statute is due to the confusing way in
which the requirements of the statute are presented to the public; or (5) the defendant’s
compliance with the statute would involve a greater risk of physical harm to the actor or
to others than noncompliance or D is confronted with an emergency not from D’s own
making.

Unable to Comply  Tedla case

Unknown violation  taillight is out, but you do not know taillight is out.
Incapacity  D is a minor unable to comply w/ SOC

Example: failing to stop at a stop sign (but not speed limit)

Circumstantial Evidence Proves Breach?

RES IPSA LOQUITUR
Res ipsa loquitur may be used to prove breach if (1) plaintiff’s harm ordinarily does not
occur without negligence; 2) an agency or instrumentality within D’s control (exclusive
or inference of D’s negligence outweighs other possible causes); 3) plaintiff’s harm not
due to any plaintiff’s voluntary action or contribution.

Defenses: (1) Outside agency without D’s control; (2) Commonly occurs without
negligence on the part of anyone; (3) Cannot be avoided by exercise of all reasonable
care (ex- Unforeseeable event). Note: Proof of D exercising all reasonable care may
not be sufficient to destroy the inference of RIL
 Res Ipsa Loquitur (RIL) DOES NOT change the any of the following burdens: The
burden of 1) pleading, 2) coming forward with evidence, or 3) persuasion. RIL is a device
for P’s purely circumstantial case to survive D’s directed verdict motions and for P to
present the case to the jury.

Example: JR Reynolds Tobacco  The exclusive control is at issue.

Breach SOC Counter Arguments

Custom provides us with evidence on what the industry SOC of care is. Jury can still
find someone negligent for following custom (the industry standard can be considered
negligent).

Expert Testimony

Causation: Cause in Fact

Cause in Fact
Cause in fact requires that but for the defendant’s wrongful conduct the plaintiff would not have
been injured.
To determine “but for” causation: (1) ID the injury, (2) ID D’s wrongful conduct, (3)
Create a counter-factual where D is not negligent in the way P says D is negligent, (4)
Would P’s injuries have occurred if D had behaved correctly?, (5) If no, causation is
established.

General/Specific
General causation requires that the defendant’s breach of duty be capable of causing the
plaintiff’s injury. Specific causation requires that the plaintiff be injured by the defendant’s
breach of duty. (toxic torts)

Loss of Chance
To prove loss of chance, P must prove by a preponderance of the evidence that the physician’s negligence caused
P’s likelihood of achieving a more favorable outcome to be diminished. (pg. 608, bottom).

Proportional Damages Test: (1) Total amount of damages for decedent if this was not a loss of chance case;
(2) But-for chance of life prior to malpractice; (3) Jury calculates the chance of survival or cure that patient
had after the medical malpractice; (4) Step 2 – Step 3; (5) Multiply step 4 by decimal in step (1). (pg. 611)

Multiple Causes OR Multiple Defendants

“Two-Fire” Problem
multiple tortfeasors, and each one alone is fully capable of causing P’s injuries, but none is a but-for cause due to
other tortfeasors (the size of the fires does not matter if we believe that both fires would have caused the damage)
– two sets of necessary and sufficient causes = overdetermined causes
R3T § 26 Factual Cause: Tortious conduct must be a factual cause of harm for liability to be imposed.
Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious
conduct may also be a factual cause of harm under § 27.
 R3T § 27 Multiple Sufficient Causes: If multiple acts occur, each of which under § 26 alone would have
been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is
regarded as a factual cause of the harm. [but-for, but we will make an exception for multiple causes &
both parties will be responsible. (because but-for just works an injustice.)]

Alternative Liability (Summers v. Tice)

If there are multiple tortfeasors and all D’s committed same neg, but P’s injury is only caused by
one (or some) of them, and P cannot pinpoint which one(s) caused the injury the Burden of
proof, including that of production and persuasion, on factual causation shifts to Ds to show
wasn’t them. RS 3rd 28(b)

*P still has to prove that each D breached the duty. § 28 only applies to a case where
all Ds are negligent in the same way, IT CANNOT apply to situations where one of the
Ds is NOT negligent.
*MUST SUE ALL DEFENDENDANTS! This rule seems to work if there is a 50/50
chance that someone did it. (Note—if you could produce evidence of third unknown
shooter, rule would not apply)

Poisonous pie hypo: D1 made a pie, D2 made an identical pie. P ate one pie and died,
but the other pie did not kill the eater. In this case, P cannot sue under Summers, because
one of the Ds is not negligent! P will lose if P cannot prove which D made the poisonous
pie.

COMPARE: Issue with res ipsa (burden does not shift), causes D to squeal when D
knows what happened & does not want to say like in Ybarra. But it is also used when no
one knows what happens & in this situation use is like summers v. tice (WE DO NOT
KNOW WHO DID THE CAUSE.)

Market Share Liability (DES)

Each D will be held liable for the proportion of the judgment represented by its share of the
market unless the D can demonstrate that it could not have made the product which caused P’s
injuries. (fungibility is key to market share liability)—Ds will be only liable for their share of the
market. You DO NOT have to sue all Ds like you would in Summers v. Tice. Defense: show
you were not in the business when D was injured.

Eliminates proof of causation for public policy reasons when it is clearly founded in facts
which support the link between the injury suffered and the risk to which P was exposed.

What if not all D’s can pay? (Abbott Laboratories) Court held that Ds were severally
liable for portion of total damages equal to D’s market share. P would have to shoulder
the loss caused by not being able to reach some Ds. 70% of market and 10% of market. P
can only recover 80%. Liability is only several liability. (different from joint and several)

Will courts extend this? Courts are afraid once they go this far, every toxic tort is open to
the challenge. Focus on fungibility *Asbestos – used to describe 6 different minerals and
injury has to do with extent of exposure.
 Nugget: National vaccine act. We know that some children get sick from vaccine. How
should we handle that? Vaccine Act said that we impose an excise tax on vaccine each
vaccine the company sells and it goes into a fund to pay for the recovery of those who get
it. (County of Alemeda) People who take vaccines are like a solider in the war. If we take
the vaccine as herd immunity, then would you have to limit it to the people who would
take the vaccine?

“Concert of action” Theory

P knew (1) that each D knew the other Ds’ conduct was tortious toward P; and (2) that they
assisted and encouraged one another. Liable for all of P’s damages.

“Industry-wide liability” or “enterprise liability

(1) the injury-causing product was manufactured by one of a small number of defendants in an
industry; (2) the defendants had joint knowledge of the risks in inherent in the product and
possessed a joint capacity to reduce those risks; (3) each defendant failed to take steps to
reduce this risk, delegating this responsibility to a trade association; and (4) most, if not all, of
the manufacturers are joined as defendants. Liability is joint and several. A manufacturer can
escape liability only by proving that its product could not have been the one that injured the
plaintiff.

Causation: Proximate Cause

Note:
 Manner is not required to be foreseeable
o If manner is foreseeable and type is not, then D wins
o If manner is unforeseeable and type is, then P wins
 Zone of Danger
 Dimensions of Time and Space
 Extent of injury
 Possibility of injury occurring

Scope of the Risk

If the plaintiff suffers an injury that results from the type of risks that made defendant’s conduct
wrongful, the plaintiff’s injury is within the defendant’s scope of liability.

Foreseeability/Type
A plaintiff’s harm is within the scope of the defendant’s liability if the type of injury ( ______ ),
manner of injury ( ______ ), and type of plaintiff ( _________ ) were foreseeable.

Genus (Lord Hoffman)

Merely the genus of harm needs to be foreseeable rather than the species. (if you think about it,
manner of injury not foreseeable is saying liability because the genus was foreseeable.  a
rotten boat (genus) is likely foreseeable to cause harm if children play on it)
Forces Unleashed
If the plaintiff’s harm was caused by forces that required the exercise of greater care than was
taken by the defendant, the incurring of consequences greater than what was foreseeable does not
provide a basis for insulation from liability.

Rationale: Rule cannot be that people have to be able to foresee all torts of all time. Cannot have
a rule where you must reasonably anticipate idiocy that occurs in everyday life. You should be
able to exist in society thinking that people will act reasonably.

Causation: Proximate Cause Limitations

Eggshell P rule: D must take P as D finds them

Eggshell Psyche rule: when harm reasonably could affect only psyche of supersensitive P, no
recovery. But if could affect ordinarily sensitive person, D must take P as D finds P.

Intervening Superseding Cause:

An intervening cause supersedes if: (1) negligence actions of a third party intervenes,
(2) the third party had full control of the situation, (3) the third party’s negligence could
not have been anticipated by the defendant, and (4) the third party’s negligence directly
resulted in injury to the plaintiff.

Turns on Element 3:
 If 3rd party negligence is unforeseeable, it is an intervening superseding cause
o The greater the recklessness and the greater the moral culpability of
intervening party, the more likely that courts will declare it unforeseeable
 If 3 party negligence is foreseeable, it is not an intervening superseding cause
rd

Common Scenarios:
 Crime, intentional tort, or gross negligence  if not within the scope of the risk
of original negligence
 Acts of God
 Gross Negligence
 Suicide: whether original tort affected the mental abilities and led to kill
themselves; could be responsible for suicide even if it occurred quite a bit after
original injury
 Harm other than the type foreseeable by D’s negligence

Mere Intervening Cause:

Ask: (1) Was the intervention foreseeable (rescue, medical care, etc.)? (2) Was the
harm resulting from the intervention the same type of harm caused by D’s conduct?
Then it is probably a mere intervening cause, not cutting off D’s liability.
 Common Scenarios of Intervening Cause of 3rd Party that Does not Supersede D’s
Liability:
 Aggravated Injury (intervention exacerbated or added injury)
o slipping while trying to walk with crutches when D caused P’s broken leg
(a few extreme cases even held D liable where P was further inured when
ambulance was involved in an accident)
 Intervention is a normal response to D’s act (rescue or escape)
 Patterned/foreseeable criminal behavior: exception to the “no duty to foresee
criminal acts”
 “Very Duty” Rule: Exception to the “no duty to foresee criminal acts” in the
realm of product liability for products that are meant to deter crime (e.g., pepper
spray that malfunctions in the process of the plaintiff attempting to ward off a
criminal attack). P. 713.
 Suicide: whether original tort affected the mental abilities and led to kill
themselves; could be responsible for suicide even if it occurred quite a bit after
original injury
 Same type of harm that was foreseeable from D’s negligence

Third Party Intentional or Criminal Acts:

RS 3rd Rule: D’s liability is superseded where the harm brought about by unforeseeable,
unusual, or highly culpable intervening acts (turns on evilness) – might explain result of Brauer;
murder is more reprehensible than theft?

Very Duty Rule (RS 3rd): When an actor is found negligent because of the failure to adopt
adequate precaution against the risk of harm created by another’s acts or omissions, or by an
extraordinary force of nature, there is no scope-of-liability limitation of the actor’s liability
Ex: pepper spray has peppermint spray instead, so the product fails to stop an attacker;
exception to not having to foresee crime/intervening criminal acts!

Rationale: Rule cannot be that people have to be able to foresee all torts of all time. Cannot have
a rule where you must reasonably anticipate idiocy that occurs in everyday life. You should be
able to exist in society thinking that people will act reasonably.

Counter Argument (similar to duty analysis): D had no duty because of policy implications.
(pg. 322)
(1) Foreseeability
(2) Community Notions of Obligation (Latzel v. Bartek—cannot send cases to jury
deciding about how agriculture will be planted. There is a high burden of giving up
places to plant corn for the amount of accidents that occurred.)
(3) Social policy
(4) Commitment to the rule of law
(5) Concern for court administrative capacity and convenience
Damages (Harm)
The plaintiff must suffer harm to recover under a negligence theory.

Medical Malpractice
Duty: Informed Consent
Doctors have a duty to inform of risk which are sufficiently material and that a
reasonable patient (rather than a specific patient) would consider them when making a
medical decision. Cause of action under Informed Consent requires that: (1) a material
risk exists, (2) the doctor has failed to disclose the risk, (3) a reasonable patient would
have chosen a different course of action had he been informed, (4) And actual injury
occurs.

Exceptions to this duty:

(1) genuine emergency (when you cannot get informed consent)
(2) therapeutic privilege (sound medical judgment that the communication of the
risk information would present a threat to the patient’s well-being.)
 can be taken advantage of, but rare.
 Might come into play if patient has underlying mental problems
 Does not accept paternalistic notion that the physician may remain silent
simply because divulgence might prompt the patient to forego therapy the
physician feels the patients really needs
 Does not accept where the patient’s reaction to risk information, as
reasonably foreseen by the physician, is menacing

In Texas, malpractice statute says that all informed consent will be brought as
negligence. Almost all jurisdictions consider it a negligence issue. *But total absence of
any informed consent fits within four corners of a battery. ONLY IN JURISDITCTIONS
THAT STILL ALLOW IT. Could be useful because you do not necessarily have to claim
damages in battery.

Standard of Care: Physician and Hospital

A physician or hospital is held to a national standard of care expected of a reasonably
competent physician or hospital in the same or similar circumstances. Under this standard,
advances in the profession, availability of facilities, specialization or general practice, proximity
of specialists and special facilities, together with all other relevant considerations, are to be
considered.

Custom: Reasonable prudence may sometimes require a higher standard of care than that
followed by the profession. (Helling v. Carey; Hand analysis to say patient should have been
given glaucoma test – narrow holding)
Defenses to Liability
Contributory Negligence
In a Contributory Negligence jurisdiction, if a plaintiff’s negligent act or omission to act is in any way the cause
(proximate & actual) of his injuries, he is completely barred from recovery.
*Note: has been barred in most jurisdictions

Last Clear Chance

In a last clear chance jurisdiction, a plaintiff may recover where they have been negligent if the defendant had the
last clear chance to prevent the harm. (TX no longer has this rule) (Drunk person was runover by car. Driver had
last clear chance to avoid accident, even though Drunk person was negligent.)

Comparative Negligence: Pure/Modified

Comparative Negligence divides liability between the plaintiff and the defendant in proportion to their relative
percentage of fault. The plaintiff’s recovery is reduced by a proportion equal to the ratio between his own
negligence and the total negligence contributing to his injury.

Pure Comparative Negligence

In a minority jurisdiction using pure comparative negligence, the plaintiff can recover regardless of degree of
negligence, as long as he is not 100% negligent. P. 734 n.5

Limits: No apportionment of negligence where the negligence of D is not directly a legal cause of the
result complained of by P. Recovery barred if: 1) P’s negligence is the sole legal cause of damage (100%
negligent), OR 2) third party negligence not in suit was sole cause of damage.

Best argument in support: A more equitable system of determining liability and a more socially desirable
method of loss distribution. Prevent great social injustice and promote just compensation.

P: 90% responsible. D: 10% responsible.

Party 1 $200K injuries and 90% fault = would recover 10% of 200k
Party 2 $20K injuries and is 10% fault = would recover 90% of 20k

Modified Comparative Negligence

In a majority jurisdiction of modified comparative negligence, a cap is imposed on how liable a plaintiff can be
before recovery is barred. (NOTE: everything can be compared, whether negligence or intentional tort; TX view
and RS view)

Under the Bradley Rule, the tie goes to the D, and judgement is barred if P is 50% liable

Under the Wisconsin Rule, the tie goes to the P, and judgement is barred if D is 50% liable (this is the most popular
of the modified rules. Texas also follows this).

Policy achievements: (1) Achieves a balance in the allocation of fault as it related to recovery in our tort
system. (2) Intermediate position between the absolute bar of the present contributory negligence rule
and the almost total permissiveness of the pure comparative negligence rule.

Argument against pure form: pure comparative just shifts the lottery aspect of the contributory
negligence rule to a different ground. Court says that pure comparative is based on the amount of
damages and the insurance coverage (footnote 11 pg. 736). It is the other end of the extreme of
contributory negligence.
 P: 49% responsible. D: 51% responsible
Party 1 $200K injuries and 49% fault (first party can sue and get 49% damages)
Party 2 $200K injuries and is 51% fault (cannot sue and get damages)
50% - D wins.

Multiple Tortfeasors in Modified Comparative Jurisdiction

Substantial Majority of courts compare P’s negligence with the combined negligence of all Ds, barring recovery if
P’s negligence is greater than all D’s combined negligence.
Ex) P is 55%, D1 is 30%, D2 is 15%; P is barred from recovery

Minority of jurisdictions compare P’s negligence to each D’s share of negligence, barring recovery if Ps negligence
is greater than each D’s share
Ex) P is 45%, D1 40%, D2 15%; P is barred from recovery from both

Assumption of the Risk (AOR) (does not require negligence)

Express AOR
If P explicitly agrees with D before the harm occurs that P will not hold D liable for harm, P has expressly assumed
the risk of that harm (contract).

Three exceptions:
 When the D intentionally causes the harm or brings it about by acting recklessly or by being grossly
negligent.
 When the bargaining power of D was grossly greater than that of the other party, unless the good or service
is essential.
 When the court concludes that there is an overriding public interest which demands that the court refuse to
enforce the exculpatory clause.

Kissing cam- find couple in audience and keep camera on until they kiss. Sanders and wife were not paying
attention & never kissed. The camera stayed on for 30 seconds & son calls Sanders saying you did not kiss your
wife. Ticket said that you assume being on camera/incidental. Is this incidental? This term seems like
incidentally be on TV if they passed camera by when following a ball

Primary Implied AOR

The plaintiff assumes the risk if the defendant was not under a duty to the plaintiff for the type of harm suffered.

No Duty Rule: No liability when the risks are common, frequent, and expected, and in no way affect the duty of
theaters, amusement parks, and sports facilities to protect patrons from foreseeably dangerous conditions not
inherent in the amusement activity. Recovery is not granted to those who voluntarily expose themselves to the
risks. Custom is a factor to measure due care.

NOTE: Most jurisdictions kept this upon moving to comparative fault. NV- seemed to abolish implied primary when
it involves the level of reasonable care, not when it involves the type of reasonable care. Texas Position threw it out
(but still get to mention AOR in closing argument, will just not get a jury instruction for it)

Per Prof. Sanders, this is really a rule about limiting the duty of the Defendant because of the nature of
the event (not the mental state of the plaintiff). P. 757 n.4
 An operator of theaters, amusement parks, and sports facility is not an insurer of the patrons. The
operator will be liable for injuries to his patrons only where he fails to use reasonable care in the
construction, maintenance, and management of the facility.

Examples:
 In a sporting event, the participants assume the risk of hazards that are inherent to the sport,
including the ordinary carelessness of other participants.
 Matter of common knowledge that fly balls are a common, frequent, expected occurrence in
baseball. But, not common knowledge that flying baseball bats are common, frequent, or
expected. – not every jurisdiction buys this distinction
 In Jones v. Three Rivers, the rule did not apply. The risk was not an inherent feature of baseball.
The concourse openings imply cannot be characterized as “part of the spectator sport of baseball.”
 If a NASCAR driver gets into a car accident while participating in a race he will likely not be able
to recover because he assumed the risk of an accident.

Abolishing it in every instance will likely be met with resistance: Touch football. Someone falls on me.
They were negligent in falling. In framework of a football game, no. CA would say mere negligence is not
enough to make responsible—limited duty rule requires more than negligent. You could say that
reasonable under the circumstances, so you have not even breached negligence. No duty rule here adds a
second level of protection—as a matter of law you were not negligent.
Would it affect if I play touch football? We are in lake Tahoe and could be in CA or NV. If you play
in CA I tell you that the rat that you hurt will not be able to sue you. NV you are at the mercy of
the jury. (I don’t know if you think that you will hurt someone before playing OR that what if you
are the person that is hurt?)

Secondary Implied AOR

The plaintiff assumed the risk when the plaintiff (1) voluntarily acted exposing himself to the danger that caused
the risk (2) with knowledge of the facts that create the risk and (2) appreciation of the danger that poses the risk.

NOTE: Under comparative negligence, most states eliminate implied secondary P. 767 n.1.
NOTE: DOES NOT REQUIRE A NEGLIGENT ACT, just VOLUNTARY CHOICE

Subjective test: The court does not mean to say subjective; they mean to say that when the circumstances are so
obvious that it is not plausible what you are saying your subjective state of mind was—you cannot recover. (not
that P always wins when P says they did not appreciate) (what a rational person would have understood is
probative of what the particular P understood) – Herod is an exception of when it is not subjective

Best counter argument: P had knowledge but was not able to form full appreciation.
Example: Of course, I knew, but I thought the driver had sense not to speed up. So, I had some
knowledge, but I did not appreciate how dangerous it was going to be.

Driver who rushes a critically ill patient to hospital runs a red light and hits a car with green light. Neither driver is
negligent, but the driver who runs the red light assumed the risk.

Kendra and Mike are at a party. They both have had a lot to drink. Mike tells Kendra that he probably should not
drive, and then he offers her a ride home. Kendra accepts the ride. Mike loses control of the wheel and Kendra is
severely injured as a result. Kendra will not be able to sue Mike because Kendra was informed about the risk of
accepting a ride from Mike but chose to accept the ride.

Mitigation of Damages
Under the doctrine of avoidable consequences, P is required to make reasonable efforts to mitigate the
consequences of his injury and to take reasonable steps to prevent further harmful consequences from developing.

Under the traditional rule, P cannot recover the part of his damages attributable to his failure to mitigate.

Under R.3d, comparative responsibility applies in this situation. D is solely responsible for all damages
not attributable to P’s failure to mitigate; damages attributable to P’s failure to mitigate are apportioned
based on P’s fault in failing to mitigate.
Example: further injury  do not Ski with a broken leg (evidence is admissible for jury to decide
D’s responsibility for the damages associated with the re-injury

Example: negligently injured P refuses medical treatment (Refusal to have a blood transfusion;
mother failed to give proper care because of religious belief (court permitted jury to consider the
evidence of religious belief—might argue that P’s action given religious belief was reasonable
under the law))
In some jurisdictions, P cannot recover to the extent that his injuries, sustained in an auto crash, were the
result of his failure to make use of an available seat belt. In TX failure to wear seat belt is admissible
evidence. But how much of injury would have occurred if not worn seatbelt is hard to prove. (Majority do
not require that P mitigate damages before the fact)

Possible issues where mitigation problem might arise:

 Failure to take additional tests to ascertain the nature of the jury
 Failure to lose weight to decrease back pain after back injury
 Failure to obtain a second mammogram in one year

Ski lift: guys running ski lift think everyone is off ski lift. The guys stop the lift, but two people are on the ski lift. It is
a guy and a girl. The girl is Jewish, so it is a sin to stay a night with a guy. She should have pushed Jack off the lift,
but she jumped off. It is the summer; she will not die but would have uncomfortable time.
She failed to mitigate. It is based on religion. Freedman -- other considerations trumping your own
physical well-being.

(false imprisonment if they tried to keep one person on the lift and did not know other person was on the
lift) – would bring up comparing intentional and negligence; two things that are different… how do you
compare false imprisonment with jumping off (jury seems to do it with no problem)

Multiple Parties: Vicarious Liability (status, not fault)

One (D1) who, while acting on behalf of another, commits a tortious act and thereby subjects himself to tort
liability to P may also thereby subject the person on whose behalf he is acting (D2) to tort liability to P. It is said
that D2 is vicariously liable to P. It refers to all of the doctrines which may cause one person to become liable for
the tortious conduct of another.
Note that most courts do not hold parents vicarious liable for their children’s tortious conduct. But see
Hawaii. + (exception of permitting members of household to use car)

Employer-Employee (intentional tort not w/in scope)

Employer will be held vicariously liable for injuries caused by their employee if within scope of employment. An
employee acts within the scope of employment when performing work assigned by the employer or engaging in a
course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment
when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the
employer. Intentional torts committed by an employee are not within the scope of employment.
Analysis of Scope of Employment: (1) Negligent Act on part of employee (focus on actions of employee without
considering acts of employer; P does not need to show any negligence on behalf of employer; if time-lag focus on
act in which vicarious liability is based); (2) Negligent act is within employee’s scope of employment. Scope of
employment if: (a) Employer would have benefited by the context of the act of the employee but for the
unfortunate injury; and (b) Whether the employer’s risks are incident to the enterprise; (3) Employee and
employer become jointly and severally liable

Course of Employment Analysis Scope of Employment:

Frolic: not engaged in business, going on a frolic of your own; employer not responsible (not responsible
driving to and from work)
Detour: employee taking a detour while performing assigned tasks; employer responsible
Notes— a rental car, cannot be that if gone for a whole month on work trip, cannot be scope of
employment for entire month. (or some person in a motel for work)

Reasoning for no intentional torts: when an employee is negligent during the course of their work and they are
doing work for the company, and they had good intentions while doing so, they shouldn’t be discouraged from
fully carrying out their tasks for work. So, this way employees aren’t held liable for things that happen while they
are doing their work. But then if they intentionally shoot someone while they are in the course of their work, that
is not something that would really benefit the company in any way so the company shouldn’t really be encouraging
them to do that kind of behavior so in that case they’d be held liable and not the employer.

Stretched application/argument you can make for liability: Wong-Leong v. Hawaiian (pau hana party)
The court stretched the application by centering the analysis on the time when the proximate cause occurred. The
proximate cause was the drinking and it occurred before the employee drove. The negligent act was the employee
drinking while knowing he had to drive home. The company’s benefit from the alcohol parties was morale and
goodwill. The parties were for company purposes and on company property.
Employer said to everyone if you want drinks afterwards because of promotion, you have to go to the
tavern. One of the supervisors was there. No, this is no longer within the scope of the employment.

Party in same circumstances. He drinks and friend said he would be DD. Friend is gone and employee said
he could get home. (court goes out of the way to make the negligent act when he drank knowing he had to
drive home.)

Independent Contractor
An employer is not vicariously liable for physical harm caused by the tortious conduct of his independent
contractor or his independent contractor’s employees.

Non-Delegable Duty Exception: Where the safe performance of some duty is of sufficient importance to the
community, an employer is vicariously liable for the negligence of his independent contractor in performing that
duty which results in physical harm. In other words, these duties are personal to D, and are not “delegable” to an
independent contractor so as to relieve D of tort liability if they are negligently performed.

Strict Liability Exception: When the contracted work involves a special, greater-than-ordinary danger to others
which the employer knows or has reason to know is inherent in, or normal to, the work, or which is contemplated
at the time of the contract, the employer is vicariously liable for physical harm caused by the independent
contractor’s failure to take reasonable precautions against such danger.
example  if hired for blasting then responsible; Owner of office building/rental car—if you killed
someone in a rental car then owner can be liable

Uber example: If passenger takes no action, then not liable for uber driver negligence. But, if passenger takes
action in the enterprise, i.e., says “forget about the speed limit,” the passenger can become liable for the driver’s
negligence.
Apparent Agency (if patient believes)
Exception – Apparent Agency (if patient believes)

A principal is vicariously liable for physical harm caused by the tortious conduct of an apparent agent if (1) conduct
by the principal that would lead a person to reasonably believe that another person acts on the principal’s behalf,
and (2) acceptance of the agent’s service by one who reasonably believes it is rendered on behalf of the principal.
(RS 3rd Agency, P is only required to prove reasonable belief. Kentucky- do not care about reasonable belief;
hospital is liable for everyone period.)

Factors: active part in enterprise, length of employment relationship, method of payment, who provides
the tools and place of work, and if social security is withheld

Example: Jones v. HealthSouth pg. 788—scrubs looked not different than hospital employees

Policy/Rationale: Independent contractor no liability because employer justifiably relies on the skill of the contract
and does not enter into any active control of the execution of the enterprise. But, if it is an apparent agent
situation, the agent appears to act under the authority of the enterprise and the enterprise receives benefit, the
employer cannot decide if they should be vicariously liable or not.

Joint Enterprise
A joint enterprise is (1) an express or implied agreement among a group of persons to engage in an
activity (2) for a common (usually, business) purpose to be carried out by all members of the group,
with (3) a community of pecuniary interest in that purpose among members and (4) all members
have an equal right of control in the direction to the enterprise.

*All participants are vicariously liable to third persons for wrongful conduct by one member of the
group.

Automobile Consent
In about one-fourth of the states, an auto owner is vicariously liable for the negligence of anyone operating it on a
public highway with his consent, within the scope of the express or implied permission. However, the bailee’s
negligence is ordinarily not imputed to bar or reduce the owner’s damages in an action against a third person.

Indemnity
Indemnification is a shifting of the entire loss from one tortfeasor to another, by operation of either (1) a prior
agreement of the parties, or (2) law, based on equitable considerations.

Imputed Contributory/Comparative Negligence

Both Ways Test: contributory negligence must be imputed if ordinary negligence would have been, and vice versa.
(whether X is P suing D OR X is D being sued by P)
Usually imputed if: (1) Employer/employee, (2) Joint Enterprise, or (3) Consequential or derivative loss. (P
has a cause of action based upon personal injuries to another (A), P’s recovery is reduced by A’s
contributory negligence.)

Motorcycle bus case. Woman and husband on motorcycle. Impute his negligence to her—she is a co-owner (joint
tortfeasor), will she be held to whatever he did wrong as well?
General rule: we impute negligence of 3rd party if passes both ways test; whether X is P suing D OR X is D being
sued by P
*exception to test in automobile, so if X is P suing bus will not impute negligence of husband to X. But, if X is
D then negligence of husband will be imputed to X.

Apportionment, Joint and Several, Contribution

Apportionment: Although the traditional rules may have differed, the modern view is that the fact finder can assign
shares of fault or responsibility to all parties, including a party that is strictly liable.

Divisible Damages: If different persons are each responsible for separate, identifiable parts of P’s harm, absent
concert of action, each is liable only for the harm traceable to him.

Indivisible Harm: If damages are not divisible/able to be attributed to a single individual; divide what you can and
apportion the rest

Joint and several liability. Traditionally, two or more persons responsible for the same harm are jointly and
severally liable for all of P’s damages, together with anyone else who is vicariously liable. P may sue one, some, or
all, obtain judgments for the full amount of his damages against as many as he can, and collect his judgment from
one or any combination of them, as he chooses. As long as his judgment is not satisfied in full, he can continue to
bring further suits or collection proceedings. (but if collect full judgment from one tortfeasor, cannot collect from
another tortfeasor)

Several liability. With the advent of comparative fault, some jurisdictions now make a joint tortfeasor only
“severally” liable to P, i.e., his liability is limited to his proportional share of the total liability. About one-quarter of
U.S. jurisdictions now have pure several liability.

Percentage Reallocation. When 1 D is unable to pay the court reallocates damages to all the other parties
(including P) in proportion to their comparative fault

Effects of Settlement on Contributors

 Proportional or percentage credit. In some jurisdictions, the credit is the settling
tortfeasor’s (T1’s) proportional share of the common liability, regardless of the dollar
amount of the settlement with T1. This is called the proportional or percentage credit rule.
 Dollar for Dollar. In some jurisdictions, the credit is the dollar amount of the settlement
with T1. This is called the “pro tanto” or dollar credit rule. In most pro tanto or dollar
credit jurisdictions, T1 will be immune from contribution, but only if the court finds that
the settlement was in “good faith.”
 Effect of partial settlement on amount recoverable from non-settling tortfeasors in a
several liability situation. If a settling tortfeasor (T1) is only subject to several liability,
any non-settling tortfeasors simply pay their proportional share(s) as determined by
applicable apportionment rules. Therefore, the other D’s do not care what happens. T1 has
settled her several liability, and it matters not whether her settlement is more or less than
the amount of her proportional share as later determined.

Contribution
Common law  no contribution
Modern rule  allows contribution
Note allowed for intentional torts