Torts, Barbara Evans, Fall 2022

INTENTIONAL TORTS

Assault – is a (1) intentional act that creates the (2) apprehension of (3)harmful or offensive contact.
● Intent
○ A voluntary act of purpose or desire.
● Apprehension
○ The plaintiff must apprehend (notice) D’s intentional act.
○ Consider the plaintiff’s apprehension of D’s posture after the first intentional act. (Catherine
MacKinnon, women, rape, and fear)
○ Harm or offensive contact must be reasonable and not for a third party.
● Future Threats
○ Future threats are not imminent unless circumstances and past actions are contributing factors.

Battery – is a (1) intentional act causing (2) harmful or offensive (3) contact (4) without the plaintiff’s consent.
● Intent
○ Intent can be transferred or established by substantial certainty of harmful contact. (Garratt v.
Dailey; 5 year old pulled chair from under a woman sitting down)
○ Intending to cause apprehension of contact then actually causing harmful contact is sufficient.
○ Doctrine of Transferred Intent: If D intends to cause contact with one person but accidently
contacts another, the intent element is proven.
● Offensive
○ Bodily contact is offensive if it offends a reasonable person’s sense of dignity.
○ COUNTER → an abnormally sensitive person is a defense (Wishnatsky v. Huey; D slammed a
door in P’s face, greatly offending P)
● Contact
○ Battery includes intentional contact with anything connected to the plaintiff's body.
○ (Pickard v. Buick; mechanic approached and touched a reporter’s camera)

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INTENTIONAL TORTS

False Imprisonment – requires D to (1) intentend to restrain or confine the plaintiff. D must also (2) actually
restrain or confine the plaintiff. The plaintiff must not (3) consent to the restrain or confinement. Finally, the
plaintiff must be (4) aware of the confinement or be injured by their confinement if they are unaware.
● Confinement
○ D must confine the plaintiff against their will. (López v. Winchell’s Donut House; employees
took the plaintiff into a closet and interrogated them for theft, but they were free to leave; the
closet was locked with a latch)
○ D can use physical force or verbal threats.
○ Confinement is met if the plaintiff is given a choice to leave, but forced to make an unreasonable
sacrifice.
○ Asserted legal authority sufficiently satisfies confinement. (Marcus v. Liebman; psychologist
threatened to commit the plaintiff to a mental hospital)
○ If D confines the plaintiff, a shoplifter, and it is proven that they were not a shoplifter, then D
committed an unlawful arrest.
○ If escape poses an unreasonable risk of harm, confinement is established.

Intentional Infliction of Emotional Distress (IIED) – occurs when the defendant (1) intentionally acts in an (2)
extreme and outrageous way and (3) causes the plaintiff severe emotional distress.
● Intention
○ Transferred intent does not apply in IIED cases. See NIED.
○ Subjective intent (intention to scare); substantial certainty (confident actions will cause distress);
recklessness (disregard for probable consequences).
○ Immediate family members of affected third parties may be able to recover.
● Outrageous Conduct
○ D’s conduct must be beyond the bounds of decency.
○ Conduct is intolerable or outrageous if it offends the generally accepted standards of decency and
morality. (Womack v. Eldridge; the defendant presented the plaintiff as a suspected pedophile in
court)
○ Taunting and insults are not outrageous conduct.

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INTENTIONAL PROPERTY TORTS

Trespass to Chattels – is the (1) intentional interference with an (2) owner’s possessory interest in their property,
(3) resulting in damage to the owner’s interest.
● Depriving the owner of the property, or
● Damaging the property’s condition, quality, or value, or
● Depriving the possessor of the property for a substantial time.
○ Mistake is not a defense to trespass to Chattels
○ COUNTER → rightful possession of the property owned by another at the time of the incident
is a defense to conversion.

Conversion – occurs when the defendant substantially interferes with the plaintiff’s possession or ownership of
their personal property that it is fair to require the defendant to pay the property’s full value.
● The court will evaluate: (1) the duration of the defendant’s dominion over the property, (2) the
defendant’s good or bad faith, (3) the harm done to the property, (4) the inconvenience caused to the
plaintiff.
○ Mistake is not a defense to conversion.

Trespass to Land – is the (1) intentional (2) unauthorized (3) entry onto the (4) land of another.
● An owner has a right to exclude anyone from their property.
○ (Jacque v. Steenberg Homes, Inc; the defendant intentionally entered the plaintiff’s property to
deliver a mobile home)
● Intentional
○ The defendant must intend to enter the plaintiff’s land. Knowledge of actual ownership is
irrelevant.
○ If D knows to a substantial certainty that they are entering P’s land, intent is met.
● Unauthorized Entry
○ If the defendant over stays an invitation to enter the plaintiff’s land, then this element is met.
○ If the defendant puts an object on the plaintiff’s land, then this element is met.
○ If the defendant refuses to remove an object from the plaintiff’s land, this element is met.
● Land of Another
○ Mistake is not a defense to trespass to land when the defendant enters the wrong person’s
property.
● Damages – Even if there is no actual harm to the plaintiff’s land, they can get nominal damages once
the defendant enters the property.

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DEFENSES TO INTENTIONAL TORTS

Consent – a person who expresses his willingness to suffer an invasion to his person may not complain when
another person acts on that consent.
● Express consent: the plaintiff consents to an intentional interference with their person or property.
○ Misrepresentations about the nature of the contact will negate consent.
○ Misrepresentations about a collateral matter ($) will not negate consent.
● Implied consent: P’s conduct, local custom, or the circumstances imply consent.
○ Objective manifestation: if it reasonably appears to the defendant that the plaintiff consented,
then consent exists regardless of P’s actual state of mind.
● Lack of Capacity: A child, unconscious, or intoxicated person cannot offer consent.
○ COUNTER → Consent as a matter of law: If P is incapable of giving consent, consent will be
implied if: (1) P is unable to give consent, (2) immediate action is necessary to save P’s life, (3)
there is not reason to believe P would not consent if able, (4) a reasonable person would consent
in the circumstances.
● Exceeding Scope: consent ends when the defendant goes beyond the scope of the plaintiff’s consent.
○ COUNTER → Emergency: an emergency might justify excenting consent.

Self-Defense – a person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily
contact, and any threatened confinement or imprisonment.
● Courvoisier Elements - mistake
○ Self-defense may constitute a defense to liability for intentional torts, even if the actions taken by
a defendant in self-defense result from a mistaken but reasonable belief that the defendant is
under attack.
○ (Courvoisier v. Raymond; the plaintiff shot an unknown police officer while fending off a
disgruntled mob)
● Degree of Force
○ Under the 2nd Restatement: an actor can only use deadly force if she is threatened with deadly
force, and that is the only means to prevent the harm.
○ Some courts impose a duty to retreat if the harm can be prevented by retreating.
■ D may use non-deadly force instead of retreating.
● Threatened
○ Self-defense can be used when there is a threat of harm or offensive contact.

Defense of Others – an intervener is privileged to use force to defend a third person so long as (1) the intervener
reasonably believes that the third person was privileged to defend himself, (2) the intervener uses reasonable force
(equal to that which the third person could legally use), and (3) the intervener’s actions were in fact necessary to
protect the third person.
● Second Restatement - allows for a reasonable mistake to be a defense.

Defense of Property – an individual may use reasonable force to prevent a tort against real and personal property.
● Warning required first
○ Owner must demand the intruder to stop before using reasonable force.
○ COUNTER → the intruder’s violence or harm will occur immediately.
● Deadly Force
○ Owner may only use deadly force when (1) non-deadly force will not suffice, and (2) the owner
reasonably believes that without deadly force death or serious harm will occur.
○ Force that is intended to inflict death or serious harm is only justified when the intruder threatens
the occupant’s safety by committing or intending to commit a dangerous felony on the property.
(Katko v. Briney; owner set a loaded shotgun as a trap to catch trespassers)

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DEFENSES TO INTENTIONAL TORTS

Recapture of Property – a property owner has the general right to use reasonable force to retain possession of
chattels taken from them by someone else.
● Fresh Pursuit
○ The right to use reasonable force exists only if the property owner is acting without unreasonable
delay.
○ COUNTER → owner waited too long before using force to recover the property.
● Reasonable force
○ The owner cannot use deadly force to recapture their property.
● Merchants
○ Merchants may detain suspected shoplifters for a short duration (10-15 minutes) to determine
whether the person is really a shoplifter. The merchant must call the police.

Necessity – the defendant has a privilege to harm the plaintiff’s property when it is necessary in order to prevent
greater harm to the defendant or third parties.
● Public Necessity
○ Interference with the property rights of one party is necessary to prevent a disaster to the
community. (firefighters damage property to stop a fire from spreading)
● Private necessity
○ If D prevents injury to themselves or their property by damaging the property and interests of
another, and there is no less-damaging way of preventing harm, then P is only liable for actual
damages. (Ploof v. Putnam; sailor tied their boat to a private dock in heavy storms)
○ The owner may not stop a party from using their property for private necessity purposes.
○ If there is no actual damage, private necessity is a total defense to a tort.
○ Vincent Elements
■ A party who damages the property of another while acting out of private necessity must
compensate the property owner for the resulting damage.
■ (Vincent v. Lake Erie Transportation Co.; the defendant ancored its boat to the plaintiff's
dock. A storm prevented the boat from leaving for two days. The boat damaged the dock,
but leaving the boat anchored was a reasonable decision)

Justification – If the defendant’s conduct does not fit within one of the above defenses, they may be entitled to this
general defense. There must be a good reason for exculpating the defendant from an intentional tort.

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DEFAMATION

Defamation – involves a false statement of fact about the plaintiff that is published and capable of causing
reputational harm. The plaintiff must prove the following elements
● The defendant published the communication;
● The nature of the communication was the communication of a fact;
● The communication was false;
● The communication was defamatory;
● The person receiving the communication understood it to be about the plaintiff and to be defamatory;
● The defendant was guilty of fault; and
● The communication proximately causes harm to the plaintiff.
○ Fault - is a defendant’s act of malice or negligence.
■ Negligence - may be required in place of malice or may may be required in addition to
malice.
■ Malice - a statement was false and made with a knowledge of its falsity or reckless
disregard (serious doubts) of whether the statement was true or false.
● Public officials - must show malice
○ Low level civil servants may not be public officials.
● All purpose public figures - are celebrities.
● Limited-purpose public figures - are individuals who thrust themselves into the
news.
○ Low level civil servants may become limited purpose public figures.
● Private citizens - do not have to prove malice.
● Romaine Elements
○ A statement that falsely attributes criminality to a plaintiff is defamatory as a matter of law.
○ A statement that alleges that a plaintiff knows a criminal is not defamatory as a matter of law.
○ (Romaine v. Kallinger; the defendant's book described an encounter with the plaintiff with a
junkie. The plaintiff claimed being described as associating with criminals was defamatory)
● Boeheim Elements - opinions
○ A cause of action for defamation is not actionable if the action is based upon the true beliefs of
the tortfeasor.
○ A mixed-opinion statement based on undisclosed or implied facts may support a defamation
claim.
■ Mixed-Opinion - statement of the speaker’s opinion that is not accompanied by facts but
which the recipient of the communication may infer as being factual.
○ Conveyance of facts - determining whether a reasonable person could conclude that a
defendant’s statements conveyed facts about a plaintiff involves consideration of:
■ (1) whether the specific language at issue had a precise meaning that is readily
understood,
■ (2) whether the statements were capable of being proven true or false, and
■ (3) whether the context of the full communication or the broader social context and
surrounding circumstances could allow a reader to conclude that what is being read is
opinion and not fact.
○ (Davis v. Boeheim; media outlets reported that an assistant basketball coach molested two boys.
The head coach released a written statement reiterating that an investigation found no proof of
molestation. The head coach also argued that the two boys were in it for the money. The boys
sued, claiming the statement caused them emotional and economic harm)

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DEFAMATION

Liable and Slander – are the two types of defamation

● Liable - The defamatory statement is made in writing.
○ Special damages - do not need to be proved. A defamatory statement made in writing is libel per
se if it’s defamatory nature is apparent.
● Slander - the defamatory statement is spoken.
○ Liberman Elements - slander per se - if the plaintiff suffers one of the following types of
slander, then they do not need to prove special damages.
■ Falsely saying the plaintiff committed a criminal act.
■ Falsely charging the plaintiff with conduct detrimental affecting their business.
■ Falsely saying the plaintiff has engaged in serious sexual misconduct.
■ Falsely saying the plaintiff has a loathsome disease.
○ Other forms of slander - must prove special damages.
■ Special damages - loss of some sort of economic benefits due to defamation
○ Liberman Elements
■ A statement is protected under a qualified privilege, and the speaker is immune from
liability, if the statement is made between persons who have a common interest in the
subject matter, unless the statement was made with malice.
■ Qualified privilege - a defamatory statement is conditionally privileged if it is made in
the discharge of some public or private legal or moral duty.
■ (Liberman v. Gelstein; the plaintiff alleged that a member of the tenants board told
another board member that they bribed police officers. The board members argued that
the conversation arouse as part of a discussion of the issue)

Defenses to defamation – can be raised to defeat a defamation claim.

● Absolute privilege -means that no matter how false or defamatory the statement is, the defendant cannot
be sued. Absolute privilege exists in the following categories:
○ Spouse to spouse,
○ Statements in judicial proceedings,
○ Members of congress in the course of legislative activities,
○ Federal officials, and
○ High ranking state officials.
● Conditional privilege - the plaintiff can sue the defendant only if malice is shown, even if the plaintiff
is a private person. Conditional privilege exists in the following categories:
○ Lower state officials;
○ People writing letters of recommendation for job applicants;
○ People reporting crimes to the police; and
○ Credit bureau reports.
● Consent is a defense - can be raised by the defendant when the plaintiff agreed to their depiction by the
defendant.

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INVASION OF PRIVACY

Invasion of privacy – the wrongful intrusion into one’s personal life, solitude, or seclusion which results in
damages to the plaintiff.
● COUNTER → Public Interest Defense - an affirmative defense to a right of publicity claim, which
protects reporting newsworthy information on matters of public interest.

Intrusion on a person’s seclusion – occurs when someone (1) intentionally intrudes, physically or otherwise, upon
the (2) solitude of another, or their private affairs and concerns, is subject to liability if their intrusion is (3) highly
offensive to a reasonable person.

Unreasonable publicity of a private person’s life – occurs when someone (1) gives publicity to a matter (2)
concerning the private life of another, if the matter (3) is highly offensive to a reasonable person, and (4) is not a
matter of legitimate concern to the public.
● Highly offensive material - that is newsworthy may be published.
● Haynes Elements
○ The plaintiff must show that the private facts published are such as would make a reasonable
person deeply offended by the publication, and in which the public has no legitimate interest.
○ (Haynes v. Alfred A. Knopf, Inc.; the defendant published a book on African-American
migration. The book contained a woman's recollection of her abusive ex-husband. The author
used real names and locations. The ex-husband sued, arguing that he had changed his life)

False light – occurs when someone (1) publishes a statement that (2) mischaracterizes the plaintiff, with (3) actual
knowledge, malice, or reckless disregard for the facts, which (4) places the plaintiff in a false light, and would be
(5) highly offensive to a reasonable person.
● Cantrell Elements
○ To maintain a false light claim, the plaintiff must show that the defendant published falsehoods
knowingly or recklessly.
○ (Cantrell v. Forest City Publishing Co.; the defendant published an article featuring the Cantrell
family after Mr. Cantrell died in a bridge collapse. One of their employees wrote the article.
Months later, the reporter visited the family again. The mother was not home. The reporter wrote
an article about the mother and the family's state of poverty)

Appropriation of a person’s name or likeness – occurs when someone (1) appropriates the name or likeness of
(2) another person for (3) their own benefit.

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MISCELLANEOUS TORTS

Intentional Misrepresentation – a failure to disclose a known material fact that the party has a legal duty to
disclose, also known as fraudulent misrepresentation, deceit, or intentional deceit.
● The Restatement (Second) of Torts, § 551(2)(e) - a party has a duty to disclose facts that are basic to
the transaction if the other party is about to enter into the transaction under a mistake as to those facts,
and would reasonably expect them to be disclosed.
○ Persuasive elements - to determine if a seller of real estate has a duty to disclose known facts:
■ the facts represent a latent condition not readily observable by the buyer;
■ the buyer reasonably acts on his assumption that the condition does, or does not, exist;
■ the seller has special knowledge, or means of obtaining knowledge, not available to the
buyer; and
■ the condition is material to the transaction, influencing whether the transaction is
concluded, or concluded at the same price.
● The Restatement (Second) of Torts, § 552, Comment (a), imposes a narrower scope of liability for
negligent misrepresentation than for intentional misrepresentation, reflecting the lesser degree of fault
when a misrepresentation is made negligently, with no intent to deceive.
● Declining to impose liability - in negligence actions for various public policy reasons:
○ the injury is too remote from the negligence;
○ the injury is not proportionate to the tortfeasor’s culpability;
○ it is too extraordinary that the negligence should have resulted in the harm; or
○ allowing recovery would unreasonably burden the tortfeasor, open the way for fraudulent claims,
or expose the courts to litigation without a sensible stopping point.
● Ollerman Elements
○ A buyer may not maintain an action for intentional misrepresentation for a seller’s failure to
disclose a material fact unless the seller had a duty to disclose it.
■ Material fact - a reasonable purchaser would attach importance to the fact’s existence or
nonexistence in determining the choice of action in the transaction.
○ (Ollerman v. O'Rourke Co., Inc.; the plaintiff bought land from the defendant. The plaintiff did
not know much about the area. The defendant was a knowledgeable and experienced local real
estate developer. While building a house, a well was uncapped, flooding the area. The plaintiff
sued for intentional and negligent misrepresentation. They claimed the defendant knew or should
have known about the well)

Interference with Contract – a defendant’s actions that intentionally result in a third party’s breach of their
contract with the plaintiff.
● Imperial Ice Elements
○ A cause of action exists where a defendant induces a third party to breach his contract with the
plaintiff through the otherwise lawful use of moral, social, or economic pressures, unless there is
sufficient justification for the defendant’s actions.
○ A plaintiff may bring a cause of action against a defendant who induces a breach by way of an
unlawful act, such as defamation, fraud, or violence.
○ An inducement is justified where it has greater social value than the protection of the contract’s
stability, for example where enforcing a contract would injure health, safety, or good morals.
○ (Imperial Ice Co. v. Rossier; the plaintiff acquired an ice distributing business. They signed a
contract containing a non compete clause with the former owner. A third party then convinced
the former owner to start selling ice they produced. The plaintiff sued the third party)

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DAMAGES

Damages – money awarded to an injured person as compensation for a harm or loss The plaintiff gets one
judgment in time, which means that they have one shot to recover all damages from an injury.
● Collateral source rule - if the plaintiff has insurance and the insurance pays some of the plaintiff’s
damages, the plaintiff can still recover full damages from the defendant.
○ Modern Rule - some statutes have abolished collateral source rules. Insurance companies have
subrogation clauses that allow them to recover their costs from a plaintiff if the plaintiff wins
damages.
● Economic loss - tangible losses, like lost wages, that are traceable to the injury.
○ Lost earning capacity - allows a plaintiff to recover damages for losing the possibility of
working.
○ Future wages - courts debate whether or not to pay a plaintiff a lump sum.
○ Medical expenses - predictable medical expenses are an economic loss subject to expert
testimony.
○ Non-medical expenses - expenses that approximately result from the plaintiff’s injury are
recoverable.
● Non-economic losses: pain and suffering - general damages the plaintiff can recover that are not able
to be measured objectively.
○ Pain - the physical pain the plaintiff suffers.
○ Suffering - the psychological pain the plaintiff suffers because of their condition.
○ Loss of enjoyment of life - “hedonistic damages” are awarded in some courts when the plaintiff
loses the ability to do something they enjoyed.
● Punitive damages - punish the defendant by making them an example to other potential tortfeasors.
They are awarded in excess of any other damages. Usually they are only available when the defendant
acted with bad intent.
○ Bad intent - the defendant demonstrated malice, which is conduct beyond ordinary negligence
or gross negligence.
■ Jury instructions - the jury will be permitted to award punitive damages if they find the
defendant acted “with reckless indifference toward the safety of others.”
○ Calculation
■ (1) the degree of reprehensibility of the defendant’s act;
■ (2) the disparity between the actual harm resulting from the defendant’s act and the
amount of punitive damages awarded; and
■ (3) the difference between awarding a punitive damages remedy and the other civil or
criminal penalties used to punish the defendant.
○ Statutory limitation - many states have enacted statutes that limit the amount of punitive
damages a plaintiff may recover.

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ESTABLISHING VICARIOUS LIABILITY

Vicarious Liability – is a doctrine that lets one person be held liable for a tort committed by another person.
Vicarious liability cases involve principles and relationships.
● Respondeat Superior - a doctrine that allows a plaintiff to establish an employer’s liability for the
tortious actions of their agents. Agents are an employer’s (1) employees or (2) independent contractors.
○ The Employee or Independent Contractor Distinction
■ Factors Suggesting and Employer-Employee Relationship
➢ The person is paid an hourly or regular wage for their work.
➢ The person is an unskilled worker.
➢ The person does not own the business or their tools.
➢ The person is a long-term worker.
➢ The person has limited or no control over the details of their work.
■ Factors Suggesting an Employer-Independent Contractor Relationship
➢ The person owns the business or owns their own tools.
➢ The person is paid by the job.
➢ The person may be a short-term worker.
➢ The person is a skilled laborer.
➢ The person can control the details of their work.
● The Employer-Employee Relationship - the employer is liable for the negligent acts of their
employees if the employee was acting within the scope of their employment.
○ The Birkner Factors
■ Who - was the tortfeasor an employee?
■ What - was the tort related to the person’s work?
■ Why - was the tort committed for personal reasons or to further the employer’s goals?
■ Where and When - did the tort happen on the job during working hours? No larks.
○ Christenson Elements
■ A company could be liable for the tortious actions of their employees if the employee
was (1) operating under the scope of their employment, (2) the tort occurred during the
hours of their employment and within the spatial boundaries of their job, and (3) their
actions were for the benefit of their employer.
■ (Christenson v. Swenson; an employee drove to get lunch at a cafe across the street from
work. She caused an accident. The employer may have created a working environment
that encouraged the employee’s actions)
● The Employer-Independent Contractor Relationship - the employer is generally not liable for the
acts of their independent contractors.
○ The Inherently Dangerous Activity Exception
■ An employer is liable for the torts of their independent contractors if they are hired to
perform inherently dangerous activities.
○ The Engage in Nuisance Exception
■ An employer who hires an independent contractor to engage in a nuisance will be liable
for the independent contractor’s actions.
○ The Nondelegable Duty Exception
■ An employer is liable for nondelegable duties even if their independent contractors are
responsible for the circumstances that created the tort. (Driver hires a mechanic to repair
their car’s brakes, but the mechanic negligently repairs the brakes. The driver is liable).
○ Rossler Elements - The Apparent Authority Exception
■ An employer could be vicariously liable for the negligence of their contractors if the
contractors operate with apparent authority.
■ (Roessler v. Novak; a hospital acted in a way that caused some patients to think their
independent contractors were hospital employees)
○ The Intentional Tort Exception
■ Some jurisdictions allow an employer to be held liable for the intentional torts of their
employees. The tort must have some link to the employee’s employment.
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ESTABLISHING VICARIOUS LIABILITY

Vicarious Liability – continued.

● Partnerships - partners are vicariously liable for the business-related torts of their partners.
○ Apply the Birkner Factors to determine if the partner’s tort was within the scope of their
partnership activities.
● Joint Enterprise - a joint enterprise is like a partnership, except that it is generally short and for s
specific purpose.
○ A joint enterprise requires (1) an agreement between members, (2) a common purpose to be
carried out by the members, (3) a common interest in the purpose, and (4) an equal right of
control in the enterprise.
● Direct Liability - the person or entity that committed a tort remains liable for the tort. Establishing
vicarious liability for another party does not negate the tortfeasor’s direct liability.
○ Employees - the employee or independent contractor responsible for a tort remains liable for
their tortious actions. The principal’s vicarious liability does not negate the agent’s direct
liability.
○ Businesses - a business that commits a tort is directly liable for that tort.
● Parental liability for their children - parents are not vicariously liable for the torts of their children.
○ A parent might be liable for their own tort.
■ See: negligent supervision of a child.
■ See: negligent entrustment to a child.

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NEGLIGENCE - THE JUDGE AND THE JURY

Burden of Proof – in a negligence case, the plaintiff bears the burden of proof.
● Burden of production - the plaintiff must present some evidence that the defendant was negligent, that
the plaintiff suffered an injury, and that the defendant’s negligence proximately caused the injury.
○ Burden of pursuasion - when an issue of fact goes to the jury, the plaintiff must prove that it is
more probable than not that their injuries were due to the defendant’s negligence.
The Judge and the Jury - a judge will decide any issues of law in the plaintiff’s case. Any issues of fact will be
sent to a jury.
● Judges - decide all issues of law.
○ The reasonable person - judges decide whether reasonable people could come to a different
conclusion regarding an issue of fact. If the judge determines reasonable people cannot differ,
then they will direct a verdict.
● Juries - are the finder of facts.
○ The reasonable person - juries determine whether the defendant’s conduct satisfied the
reasonable person standard.

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NEGLIGENCE & THE REASONABLE PERSON

Negligence – occurs when the defendant’s conduct imposes an unreasonable risk upon the plaintiff. The plaintiff
must also suffer an injury as a result of the defendant’s unreasonable conduct.

Prima Facie Case – generally, a plaintiff must prove four elements to establish a case for negligence. The four
elements are: (1) duty, (2) breach of duty, (3) causation, and (4) injury. The causation element requires the plaintiff
to prove that the defendant was the actual and proximate cause of their injuries.

The Reasonable Person – a defendant’s conduct will be viewed under an objective standard. The objective
standard asks whether a reasonable person of ordinary prudence in the defendant’s position would have behaved the
same way under the circumstances.
● Brown Elements
○ The defendant cannot be found liable for a plaintiff’s damages if the defendant acted with lawful
intent and within reason.
○ (Brown v. Kendall; the defendant was trying to break up a dog fight involving his dog. He was using the
stick and accidentally hit the plaintiff in the eye)
● Bethel Elements
○ A person must exercise the same degree of care as a reasonable person of ordinary prudence under all the
circumstances of the case.
○ (Bethel v. NYC Transit Authority; plaintiff’s wheelchair seat collapsed, causing injury. The mechanic
inspected and repaired the chair prior to the injury, but did not fix the flaw. The bus was a common
carrier and, at the time, strictly liable)
● Physical and mental characteristics - the circumstances include the defendant’s physical
characteristics.
○ Physical disability - the standard of care for a defendant with a physical disability is what a
reasonable person with that physical disability would have done.
○ Mental characteristics - generally the defendant is held to possess the mental characteristics of
the ordinary reasonable person.
■ Greater than usually stupidity or carelessness will not be a defense to negligence.
○ Intoxication - an intoxicated defendant will be held to the standard of a sober person.
○ Children - a child is held to the level of conduct of a reasonable person of the child’s age and
experience.
■ Adult activities exception - when a child engages in a potentially dangerous activity
normally pursued by adults, they will be held to the standard of care that a reasonable
adult doing that activity would exercise.
● Custom - either the plaintiff or the defendant may present evidence of custom to establish the presence
or absence of reasonable care.
○ Trimarco Elements
■ The defendant is liable for negligence when a custom or accepted practice is coupled with
proof that the customs or practices were ignored and this ignorance was proximate cause
for one’s injuries.
■ (Trimarco v. Klein; plaintiff fell through a glass door and lost his arm. The door was
installed a decade ago, under different building codes. The recent standards used different
door material. The defendant was aware, made replacements on request, but did not
actively replace doors)
○ Evidence by the defendant - the defendant can show that everyone in the industry does things
the way they did. However, the jury is still free to conclude that industry custom is negligent.
○ Evidence by the plaintiff - the plaintiff may offer evidence that the defendant did not follow a
custom followed by other practitioners in the defendant’s profession. Such evidence is
suggestive of negligence.
● Emergencies - emergencies are situations when the defendant is forced to act with little time for
reflection. When a defendant acts in an emergency they must merely behave as a reasonable person
would in a similar emergency. They are not held to act like a reasonable person with plenty of time to
think.
14
NEGLIGENCE & THE REASONABLE PERSON

Standard of Care – the degree of prudence and caution required of an individual who is under a duty of care.
● Adams Elements - Reasonable precautions
○ A person who has taken reasonable precautions against foreseeable dangers cannot be held liable
for negligence from unforeseeable events.
○ (Adams v. Bullock; the defendant owned a trolley line. The trolly’s used wires. One wire ran
below a bridge. A kid swinging a wire crossed the bridge and struck the trolley wire,
electrocuting himself. This was a very rare occurrence)
● Carroll Towing Elements - Taking precautions
○ Liability for negligence due to failure to take safety precautions exists if the burden of taking
such precautions is less than the probability of injury multiplied by the gravity of any resulting
injury.
○ This formula may be symbolized mathematically by B < PL = negligence liability, where “B” is
the burden of adequate precautions, “P” is the probability of injury, and “L” is the injury itself.
○ (US v. Carroll Towing; a barge was tied up in a busy harbor. It was untied and retired, but came
loose. It struck another boat and sank with all cargo. It’s Bargee was not present to raise the
alarm to avoid sinking)
● Vince Elements - Negligent entrustment
○ A person is liable for negligently entrusting a dangerous instrumentality to an incompetent party.
○ (Vince v. Wilson; a grandmother gave her nephew money to buy a car. The nephew was known
to be a negligent driver. The grandmother told the dealership this, but they still sold him a car.
The nephew got into a wreck, injuring their passenger)

15
NEGLIGENCE & MALPRACTICE

Malpractice – professionals must act with the level of skill and learning commonly possessed by members of their
profession. Failure to act with the necessary level of skill and learning is malpractice.
● Superior ability and knowledge - a defendant with more knowledge, skill, or experience than the
reasonable person must use their superior abilities when applicable.
○ Local knowledge - activities like driving or boating that benefit from local knowledge create a
risk of malpractice.
○ Sheely Elements - medical malpractice
■ If a doctor practices medicine, then they have a duty to practice with the same level of
skill and diligence as any other member of their profession within the same practice.
■ (Sheely v. Memorial Hospital; Sheely gave birth at the defendant's hospital. The
defendant performed a procedure that resulted in complications. Sheely sued for
negligence, claiming that the defendant performed the operation below the professional
standard)
● Good results - professionals are not held to guarantee that a successful result will occur. Professionals
only need to use minimum skill and competence.
● Minimally qualified - the plaintiff must prove that the defendant lacked the skill level of a minimally
qualified member of the profession.
○ Novice - there are no exceptions for novice professionals.
● National standards - the plaintiff may use testimony from experts outside their local community to
prove malpractice.
○ Community standards - a few courts may hold professionals to local community standards.
● Informed consent - medical malpractice - part of a physician’s professional duty is to adequately
disclose the risks of a proposed treatment to the patient.
○ Matthies Elements
■ A physician has a duty to obtain a patient’s informed consent before they take action.
■ A doctor must disclose all material risks in the proposed treatment that a reasonable
patient would want to consider when deciding whether or not to undergo treatment.
■ (Matthies v. Mastromonaco; a doctor prescribed a noninvasive treatment for the plaintiff’s broken
hip. The doctor did not obtain the plaintiff’s informed consent prior to treatment. they suffered a
significantly reduced quality of life as a result of the doctor’s treatment)

16
NEGLIGENCE & NEGLIGENCE PER SE

Negligence Per Se – when there is a safety statute that applies to the facts of the case, an unexcused violation of the
statute establishes negligence. Courts are split about whether a violation of an ordinance or regulation constitutes
negligence per se.
● The statute must apply to the facts - negligence per se will only apply when the plaintiff shows that
the statute was intended to prevent the kind of harm they suffered.
○ Protection against particular harm - the statute must have been intended to protect against the
particular kind of harm that occurred to the plaintiff.
■ Class of persons protected - the plaintiff must be a member of the class of persons
whom the statute was designed to protect.
● Martin Elements
○ When a statute requires an affirmative action, the failure to perform that action constitutes a
violation of a legal duty. It is negligence per se.
○ (Martin v. Herzog; A horse and buggy driver was hit by a car. The car was driving in the middle of the
road. The buggy had no lights. A statute required lights on all buggies)
● COUNTER → Excuse of violation - the court can find that the statutory violation was excused.
However, the statute must allow excuses. If a statute forbids excuses, then the court cannot excuse the
violation.
○ Reasons for excusing a defendant’s violation of a statute:
■ The defendant was unaware of the factual circumstances that made the statute applicable.
■ The defendant made a reasonable attempt to comply.
■ The violation was due to the confusing way the statute was presented to the public.
■ Compliance would have involved a greater risk of harm.
● Tedla Elements
○ If a statute regulates rights in a manner designed to promote public
convenience and safety, then failure to follow that statute for good cause is
not negligence unless there is clear language to the contrary.
○ (Tedla v. Ellman; two people were struck by a car walking with the
direction of traffic. A state statute required them to walk against traffic.
The against way traffic was significant)
● Compliance is not a defense - the defendant’s compliance with an applicable safety statute does not
establish that the defendant was not negligent. It may be necessary for a reasonable person to take
precautions beyond those required by a statute

17
RES IPSA LOQUITUR

The Doctrine of Res Ipsa Loquitur – an action for res ipsa loquitur states that negligence on the part of a
defendant may be presumed from the mere occurrence of an accident if the accident is of a kind which ordinarily
does not occur in the absence of someone’s negligence.
● Inference Res Ipsa Loquitur - the plaintiff has the burden of proof and the defendant is under no
burden to produce evidence.
● “Middle” Res Ipsa Loquitur - the defendant needs to provide at least some evidence that supports an
alternative explanation of how the event occurred.
○ Burden of proof - is still on the plaintiff, but if the defendant fails to offer an explanation they
risk losing the case.
● “Strongest” Res Ipsa Loquitur - the defendant must produce evidence and also must persuade the jury
that they didn’t cause the plaintiff’s injury.
○ Burden of proof -If the plaintiff and defendant are equally plausible, the burden of proof is on
the defendant so they will lose.
● Byrne Elements - Court of Exchequer
○ If injury of a type that does not typically occur without negligence does occur, negligence is
presumed from the mere fact of the occurrence.
○ (Byrne v. Boadle; plaintiff was struck by a barrel that fell out a window. The origin of the barrel
could only be negligent storage)
● McDougald Elements
○ The fact that an accident occurred may be sufficient to maintain a claim of negligence.
○ (McDougald v. Perry; a semi-truck spare tire came loose and crashed into the plaintiff's car. The
way the tire came loose is unknown)
● Requirements - there are four requirements to establish res ipsa loquitur.
○ (1) the thing that happened is of a sort that does not usually occur unless somebody has been
negligent; and
○ (2) the defendant was in control of the instrumentality that caused the injury;
○ (3) other possible causes can be ruled out--not necessarily with total certainty, but with some
degree of confidence or with a reasonable amount of plausibility.
■ COUNTER → the Third Restatement has dropped the exclusive control
requirement.
● Ybarra Elements
○ If a plaintiff receives unusual injuries while undergoing medical treatment, then any defendant
who had control of the plaintiff’s body, or an object that might have caused the injury can be
held liable under res ipsa loquitur.
○ Some courts require that evidence of what really happened be more available to the defendant
than to the plaintiff.
○ (Ybarra v. Spangard; the plaintiff went in for an appendectomy and woke up with an injured
shoulder. None of the hospital staff would say how the injury occurred)
● Expert testimony - the plaintiff may use expert testimony to establish the conditions to infer res ipsa
loquitur if the facts are complex or involve specialized knowledge, insight into whether the accident
would probably have happened without negligence may be beyond the expertise of the jury.
● Rebuttal evidence - the defendant must rebut the required elements of res ipsa to defeat a res ipsa
claim.
○ General care defense - evidence that shows the defendant was just careful will not defeat a res
ipsa claim.
○ COUNTER → an unforeseeable event occurred that created the conditions for the accident.
● Typical Res Ipsa Issues
○ Airplane accidents - airplanes usually do not crash without someone’s negligence.
○ Car accidents - res ipsa does not automatically apply.
■ Multiple vehicles - multi-car crashes are not always the result of negligence.
Contributory negligence of all drivers cannot easily be eliminated.
■ Single vehicles - create an inference of res ipsa, since driver negligence is usually the
18
 result of the accident.
ACTUAL CAUSE “CAUSE IN FACT”

Cause in Fact – the plaintiff may recover if they establish facts showing with reasonable certainty that the injury
resulted from the cause for which the defendant was responsible.
● The “But for” test - applies to an act or omission in the absence of which a particular result could not
have occurred.
○ Zuchowicz Elements
■ If a negligent act is deemed wrongful because that act increases the chances that a
particular type of accident will occur, and a harm of that very sort does occur, there is
adequate support that but for the negligent act, the harm would not have occurred.
● COUNTER →The burden shifts to the negligent party to produce evidence
denying the “but for” cause and showing its conduct was not a substantial factor
in bringing about the harm.
■ (Zuchowicz v. United States; a doctor mistakenly directed their patient to take 1600mg of
a druct only tested at 800mg per day. the patient developed primary pulmonary
hypertension. )
○ Joint tortfeasors - there can be multiple “but for” causes.
● Concurrent causes - the defendant’s conduct can be a “cause in fact” without being a “but for” cause of
the plaintiff’s injuries. This happens when two events concur to cause harm. Either event would have
been sufficient to cause the harm. Both events are causes in fact.
○ Stubbs Elements
■ If an injury has two or more possible causes, a plaintiff only needs to establish that their
injury was directly caused by the cause for which the defendant was liable.
■ (Stubbs v. City of Rochester; a city maintained two water systems. One system was for
drinking water and the other for firefighting. The systems became intermingled in one
area. The plaintiff and several others developed typhoid fever)

Lost Chance – the defendant’s conduct has increased the risk that the plaintiff will suffer some damage, but the
damage has not yet occurred.
● Matsuyama Elements - Malpractice
○ A physician may be liable for damages when his negligence diminishes or destroys a patient’s
likelihood of achieving a more favorable medical outcome.
■ All or nothing - under the all or nothing rule, a plaintiff must show that it is more likely
than not that the defendant’s negligence caused the plaintiff’s injury.
○ Loss of chance is a real injury
○ Damages in a loss of chance case should be limited to the portion of the plaintiff’s survival
prospects that the physician’s negligence destroyed.
○ (Matsuyama v. Birnbaum; a patient visited a doctor complaining of stomach pain. The patient's
lifestyle exposed them to the risk of gastric cancer. The doctor did not order any tests. The
stomach pain worsened and the patient developed moles. The doctor tested for bacteria, but not
cancer. Eventually the doctor tested for cancer, but it was too late to treat)
● Court A - denies the plaintiff recovery unless the damage is more likely than not to occur.
● Court B - the plaintiff can recover, but their damages are reduced by the odds that the harm will not
occur.

The Indeterminate Plaintiff – occurs when the defendant has injured people, but it is not clear which people have
been injured.
● Toxic Torts - people who were exposed to a toxic substance, made by the defendant, suffer a particular
medical problem can recover damages.
○ Cannot show specific harm - the plaintiff can still recover even though they cannot prove the
defendant’s toxic substance caused their medical problem.

19
20
ACTUAL CAUSE “CAUSE IN FACT”

Multiple fault – if the plaintiff can show that two or more defendants were at fault, but only one could have caused
the injury, the burden shifts to each defendant to prove who caused the harm.
○ Summers Elements - Alternative Causes
■ Two independent tortfeasors may be held jointly liable if it is impossible to tell which
one caused the plaintiff's injuries, and the burden of proof will shift to the defendants to
either absolve themselves of liability or apportion the damages between them.
■ (Summers v. Tice; both defendants fired their shotguns in the plaintiff's direction at the
same time. The plaintiff could not prove which defendant hit them)
○ Hymowitz Elements - The “market share” theory
■ Under the New York approach, DES manufacturers are severally liable to a plaintiff in
proportion to their national market shares, and a court cannot exculpate a manufacturer
who produced and marketed DES for use by pregnant women but can prove that it did not
cause the particular plaintiff’s injury.
■ (Hymowitz v. Eli Lilly & Co.; hundreds of companies manufactured the drug DES to
prevent miscarriages. Years later female children developed cancer. So much time passed
that the mothers could not remember who made the drugs they took. New York passed a
law that revived DES claims that were barred by the statute of limitations)
○ Market Share Theory - if the plaintiff cannot prove which manufacturer caused their injury, but
can show that all manufacturers produced a defective product, then each manufacturer will be
required to pay the percentage of the plaintiffs injuries based on their national market share.
■ Exculpation - allows the defendant to show that they are not guilty of wrongdoing.
● Courts are split - not every court will allow a defendant to exculpate themselves.
○ Drug companies - that produce drugs for a national market may not be
allowed to exculpate themselves.
■ National market share - courts look at a defendant’s share of the national market.
● Local markets - are usually not considered.
■ No joint-and-several liability - courts adopting a “market share” approach often reject
joint-and-several liability. The plaintiff may collect from any defendant the defendant’s
proportional share of the harm caused.
■ Socially valuable products - the more socially valuable a product is, the less likely a
court is to apply the market share standard.

21
PROXIMATE CAUSE

Proximate Cause – the defendant’s conduct will be a proximate cause of the plaintiff’s harm if the harm was a
foreseeable result of the defendant’s conduct, and the harm was not brought about by an unforeseeable event.

Foreseeability – the defendant is liable only for the (1) consequences of their negligence which are (2) reasonably
foreseeable when the (3) defendant acted.
● Third Restatement - the defendant is not liable for harm different from the harms that made the
defendant’s conduct tortious.
● Unforeseeable plaintiff - the defendant is only liable for the foreseeable consequences of their actions,
so negligence towards one party does not transfer to another injured party that was not exposed to the
defendant’s negligence.
● EXCEPTION - extensive consequences - once the plaintiff suffers a foreseeable injury, the defendant
is liable for any additional and unforeseen physical consequences.
○ Benn Elements - the egg-shell plaintiff
■ A defendant is liable for all damages resulting from their negligence, even if the plaintiff
suffers injuries greater than what an ordinary person would have suffered.
■ (Benn v. Thomas; a plaintiff predisposed to having a heart attack was in a car accident.
They suffered injuries. A few days later they died of a heart attack)

The Zone of Danger – the area in which one is in danger of actual physical impact due to the negligent acts of
another.
● Palsgraf Elements
○ Cardozo’s Rule
■ A defendant owes a duty of care to a plaintiff only if the plaintiff is in the zone of
reasonably foreseeable harm resulting from the defendant's actions.
○ Andrew’s Rule
■ Everyone owes the general public the duty of refraining from acts that may unreasonably
threaten the safety of others.
■ To recover damages there must be a natural and continuous sequence between cause and
effect, with few if any intervening causes.
○ (Palsgraf v. Long Island R.R.; a man was carrying a package containing fireworks. They were
rushing to board a train. A railroad worker pulled them aboard, but the package fell and
exploded. The explosion knocked down some scales and hurt the plaintiff.

22
PROXIMATE CAUSE

Intervening Causes – a cause that occurs after the defendant’s negligence and combines with the defendant’s
negligence to produce the plaintiff’s harm.
● Superseding cause - is an intervening cause that breaks the chain of causation between the original
defendant’s negligence and the plaintiff’s harm
○ Precludes - the original defendant from behind held liable for the plaintiff’s injuries.
○ Torres Elements
■ The plaintiff’s negligence is not an independent intervening cause that would be an
affirmative defense to a defendant’s negligence.
■ (Torres v. El Paso Electric Co.; the plaintiff was helping replace a roof on a greenhouse
when they made contact with a high voltage conductor. The plaintiff alleged the
defendant negligently installed the conductor. The defendant alleged that Torres was
negligent in their actions)
● Foreseeability test - if the defendant should have foreseen the possibility that the intervening cause
might occur, then the defendant’s conduct will be a proximate cause.
○ Foreseeable intervening cause - when the defendant’s conduct creates the risk of an intervening
cause, the defendant will still be a proximate cause.
■ Foreseeable negligence - the negligence of a third party may be sufficiently foreseeable
to the defendant.
■ Criminal or intentionally tortious conduct - may be foreseeable enough to hold the
defendant liable. However, courts usually find such behavior to be a superseding act.
● Events following the defendant’s actions - when a third party’s intervention is a normal response to
the defendant’s act, the third party’s response will not be considered superseding.
○ Escape - people who cause injury fleeing from the defendant’s actions are not superseding
events, unless they fled in an unreasonable way.
○ Rescue - negligence invites rescue. If the defendant’s actions create the need for a rescue, then
the rescue will not be an intervening cause, unless the rescuer acts in an unreasonable way.
■ Liability - will be extended to the rescuer responding to the defendant’s actions.
○ Malpractice - the defendant will be liable for anything that happens to the plaintiff as the result
of negligence in the medical treatment of the plaintiff’s injuries.
■ Gross mistreatment - grossly negligent medical treatment is a superseding event.
● Polemis Elements - foreseeable intervention, unforeseeable result
○ A negligent actor can be held liable for all damages his negligent act caused, even if not
reasonably foreseeable.
○ (Arbitration Between Polemis & Furness Withy; the plaintiff owned a ship chartered to the
defendant. The ship was transporting gasoline. While unloading the ship, a plank fell into the
cargo hold, ignited the gasoline, and destroyed the ship)
● Overseas Tankship Elements - unforeseeable intervention, unforeseeable result
○ A defendant is only liable for the consequences flowing from his negligent act that are
foreseeable to a reasonable person at the time of the negligent act.
○ (Overseas Tankship v. Mort’s Dock; the plaintiff owned a wharf where it repaired other ships.
The defendant's ship was docked at a nearby wharf. The defendant's ship leaked oil into the
harbor, and the tide carried it into the plaintiff's wharf. The plaintiff stopped work in their wharf
until they determined that the oil was not flammable. After continuing work, the oil ignited and
destroyed the wharf)
○ Extraordinary acts of nature - unforeseeable acts with unforeseeable results.

23
JOINT TORTFEASORS

Joint & Several Liability – when more than one person is a proximate cause of the plaintiff’s harm, and the harm
is indivisible, then each defendant is liable for the entire harm.
● Hybrids - several states have combined aspects of joint & several liability with aspects of pure several
liability. Some states have adopted pure several liability.
○ Hybrid joint & several liability with relocation - all defendants are joint and severally liable,
but if one defendant turns out to be judgment-proof, the court re allocates the damages to all
other parties (including the plaintiff).
○ Hybrid liability based on threshold percentage - a tortfeasor who bears more than a certain
threshold percentage of total responsibility remains jointly & severally liable.
○ Less than threshold - tortfeasors whose responsibility is less than the threshold are only
severally liable.
○ Hybrid liability based on type of damages - the defendants may be joint and severally liable
for economic damages, but only severally liable for non-economic damages.
○ Several Liability - a defendant is liable only for their share of total damages.

Indivisible and divisible harms – indivisible harms are not able to be apportioned between defendants. Divisible
harms have a rational basis for apportionment and each defendant will be responsible only for that directly
attributable harm.
● Rules for apportionment
○ Action in concert - two defendants who act in concert will each be liable for injuries directly
caused by the other.
○ Successive injuries - courts can appotion harm if the harm occurred in successive incidents.
■ Consequence of non-apportionalbility - courts place the burden of allocating damages on
the defendants when apportionability cannot be determined. Defendants will become
joint & severally liable for the damages.
■ Overlapping - the original tortfeasor is liable for all harm, while succeeding tort feasors
are liable only for the harm they cause.
○ Indivisible harms - some harms are always indivisible.
■ Death or single injuries
■ Fires

Contribution – when two tortfeasors are jointly and severally liable, and one tortfeasor pays more than their pro
rata share, they may obtain partial reimbursement from the other tortfeasor.
● Amount - each joint and severally liable defendant is required to pay an equal share.
○ Comparative negligence - contribution is proportional to fault.
● Uniform Contribution among Tortfeasors Act - when a defendant has paid more than their fair share
of a judgment owed to a plaintiff, it could sue the other co-defendants to collect anything in excess of its
fair share.

Indemnity – a required payment to an individual who has been held liable for a tort, and suffered a loss without
fault.
● Vicarious liability - an employer who pays a judgment for one of their tortious employees can seek
indemnity from their employee.
● Retailer versus manufacturer - a retailer held strictly liable for selling a defective product can get
indemnity from other parties further up the distribution chain, like the manufacturer.

24
DUTY

Duty – a person owes everyone they come in contact with a general duty of care.
● Less than regular duty - sometimes the plaintiff owes less than a general duty of care.
○ The defendant has no duty to take affirmative action to help the plaintiff.
○ The defendant has no duty to avoid unintended mental suffering to the plaintiff.
○ The defendant has no duty to avoid causing pure economic loss to the plaintiff in the absence of
more tangible types of harm.
● Hammontree Elements
○ If there is no duty, there is no negligence.
○ If a driver experiences a sudden physical illness that renders them unconscious, then they might
not be absolutely liable for damages.
○ (Hammontree v. Jenner; a driver suffered a seizure, became unconscious, lost control of his car, and
crashed into a store.

Failure to Act – generally, a person cannot be liable for negligence solely on the grounds that they failed to act.
● Refusing to assist - if the defendant sees the plaintiff in danger and fails to render assistance, they are
not liable for refusing to assist.
○ Easy to help - a duty is not created when the defendant could easily and safely help the plaintiff.
● EXCEPTION - Special relationships - a duty to give assistance may arise out of a special relationship
between the defendant and the plaintiff.
○ Harper Elements
■ If there is no special relationship between the defendant and the plaintiff, then there is no
duty to act to prevent the plaintiff’s harm.
■ (Harper v. Herman; a guest on an owner's boat dived into shallow water and became
paralyzed. Owner had not warned the guest of any danger, nor did the owner expect
someone to dive off his boat)
○ Relationships that impose a duty of care - Third Restatement.
■ A common carrier and their passengers;
■ An innkeeper and their guests;
■ A business that holds its premises open to the public with those who are lawfully on the
premises;
■ An employer and their employees;
■ A school and its students;
■ A landlord and its tenants;
■ A custodian and those in its custody.
● EXCEPTION - Defendant’s conduct - if the plaintiff’s injury is due to the defendant’s conduct, then
the defendant has a duty to give assistance.
● EXCEPTION - Co-venturers - Farwell Elements
○ If a person knows that (1) someone is in peril and there is a (2) special relationship between
them, then there is an affirmative duty to exercise reasonable care when (3) rendering aid.
○ (Farwell v. Keaton; two friends were adventuring together, got in a fight, one was seriously
injured. The non injured friend attempted to help before leaving the friend in a worse condition.
The injured friend died)
● EXCEPTION - Assumption of duty - if the defendant voluntarily begins to render assistance to the
plaintiff, then the defendant must proceed with reasonable care.
○ Preventing assistance by others - rendering assistance dissuades others from helping because it
creates the apprehension that the problem is taken care of.
○ Mere promise - courts may or may not find that the defendant owed a duty of care based on a
promise.
● EXCEPTION - Duty to control others - if the defendant has a duty to control third persons, they can
be liable for failing to exercise that control.
○ Special relationships - duties to control others arise from special relationships.

25
DUTY

Failure to act – continued

● EXCEPTION - Misrepresentations - Muroc School District Elements
○ A person is not liable to another for nondisclosure or a failure to act, absent a special relationship
between the parties.
○ The Restatement (Second) of Torts - a person who negligently gives false information to
another is liable for physical harm caused by action taken in reasonable reliance on that
information, if the harm results either to the person relying on the information, or to a third party
the actor should reasonably expect to be put in peril.
○ (Randi W v. Muroc Joint Unified School District; the plaintiff was molested by the defendant, an
assistant principal. The defendant’s previous employers wrote supportive letters of
recommendation even though they were aware of sexaual misconduct allegations. The defendant
was hired based on the letters of recommendation)
● EXCEPTION - Psychotherapists’ and physicians’ duties to third parties - Tarasoff Elements
○ If a therapist learns of an intent to harm a person from their patient, then the therapist must take
reasonable precautions to warn the victim of potential danger.
○ (Tarasoff v. Regents of the University of California; the defendant was in a brief romantic
encounter with the plaintiff, who was not interested in a relationship. The defendant became
distraught and went to a psychologist. They revealed detailed plans to kill the plaintiff to the
psychologist. The Psychologist did not tell the plaintiff or their family. The defendant proceeded
to kill the plaintiff)
● EXCEPTION - Statutory failure to act - Uhr Elements
○ A private right of action may be inferred from violation of a statute if (1) the plaintiff is one of
the class for whose particular benefit the statute was enacted, if (2) recognition of a private right
of action would promote the statute’s legislative purpose, and if (3) creation of such a right
would be consistent with the legislative scheme.
○ (Uhr v. East Greenbush Cent. Sch. Dist.; a state statute requires schools to test students for
scoliosis at least once a year. The plaintiff was screened, tested negative, not screened again for
two years. Later tests revealed advanced scoliosis that required surgery. The plaintiff sued for
negligence, but the court held that the school district had its own system of punishment)

26
DUTY

Mental Suffering – if the defendant’s actions cause the plaintiff to suffer intense mental suffering, and there is no
physical impact, the plaintiff may be able to recover some damages.
● Mental distress tacked on to a case with physical injury - when the plaintiff suffers an actual physical
injury, the defendant is liable for all the emotional or mental suffering resulting from the injury.
○ Parasitic damages - the plaintiff must provide sufficient assurances that the claim of suffering is
not being feigned.
● Emotional distress outside the zone of danger - when the plaintiff witnesses an accident, is well out of
the zone of danger, and never fears an imminent impact, then the defendant will not be liable for the
plaintiff’s emotional distress.
○ Fear of boundless liability - courts fear a flood of litigation by plaintiff’s feigning harm.
○ Jamaica Hospital Elements
■ Parents can not recover damages for their own emotional distress resulting from
hospital's negligence in its care of their child.
■ (Johnson v. Jamaica Hospital; parents of a newborn infant abducted from a hospital
brought a negligence action against the hospital for infliction of emotional distress)
● Emotional distress inside the zone of danger - the plaintiff escapes bodily harm, but suffers mental
distress from witnessing the accident.
○ Most courts - if the plaintiff shows the distress they suffered was severe, they can recover.
○ Third Restatement - an actor whose negligent conduct causes serious emotional harm to
another is subject to liability to the other if the conduct
■ (a) places the other in danger of immediate bodily harm and the emotional harm results
from the danger.
○ Falzone Elements
■ A plaintiff may recover for substantial bodily injury or sickness resulting from
negligently induced fright, even if the plaintiff did not suffer a direct physical impact.
■ (Falzone v. Busch; a passenger was sitting in a car as they watched another car hit their
husband and nearly hit the car they were sitting in. The passenger became sick, but there
was no physical contact)
● A close relative suffers a bodily injury - when the plaintiff is a bystander and they witness a close
relative suffer a bodily injury due to the defendant’s negligence they can recover for emotional distress.
○ Zone of danger - most courts do not require a bystander to be within the zone of danger.
○ Third Restatement - an actor who negligently causes sudden serious bodily injury to a third
person is subject to liability for serious emotional harm caused to a person who:
■ (a) perceives the event contemporaneously, and
■ (b) is a close family member of the person suffering the injury.
● Close relatives - are usually defined as siblings, parents, and spouses.
● Contemporaneous perception - the plaintiff must experience the event in real
time, but they do not necessarily have to see the event.
● Bodily injury - must be severe and sudden, like death or disfigurement.
○ Portee Elements
■ A plaintiff may recover damages for emotional distress resulting from witnessing the
accident of a close relative caused by the defendant’s negligence.
■ (Portee v. Jaffee; the plaintiff watched her child suffer and die when he became trapped
in an elevator, brought action against her landlords and elevator companies seeking
damages for her mental and emotional distress)
● A not-close relative suffers a bodily injury - most courts do not allow a plaintiff to recover damages
when they suffer emotional distress after witnessing a bodily injury to a party that is not a close relative.
○ Inside the zone of danger - the plaintiff can recover through other means.

27
DUTY

Mental Suffering – continued

● Special relationship - courts have held that certain situations create a special relationship between the
parties that impose a duty to avoid causing unintended mental suffering.
○ Gammon Elements - mishandling of bodies
■ A plaintiff may recover for emotional distress that was a reasonably foreseeable result of
the defendant’s negligence.
■ (Gammon v. Osteopathic Hospital of Maine, Inc.; a person was delivered two bags that
were supposed to contain their father’s belongings. One bag had a severed leg. The
person’s emotional health significantly deteriorated)
● The “at-risk” plaintiff - plaintiffs who suffer severe emotional distress due to exposure to harmful
substances that increase the likelihood of illness may not be able to recover.
○ Buckley Elements
■ A plaintiff may not recover for negligently inflicted emotional distress for exposure to a
carcinogen, unless he manifests symptoms of a disease.
■ To sustain a claim brought under the Federal Employers’ Liability Act for negligently
inflicted emotional distress, a plaintiff must sustain a physical impact or be placed in
immediate risk of physical harm.
● FELA - a federal statute that provides railroad workers certain protections and
rights to compensation for injuries they receive on the job.
■ (Metro-North Commuter RR v. Buckley; an employee was exposed to asbestos, but they
had not developed any symptoms. Their exposure supposedly caused them emotional
distress, but their actions indicated otherwise)
● Loss of consortium - occurs when a husband or wife loses the ability to enjoy the benefits of their
relationship with their spouse due to the negligence of the defendant. The loss of enjoyment is the
injury.
○ Diaz Elements
■ A plaintiff may recover damages for emotional distress resulting from witnessing the
accident of a close relative caused by the defendant’s negligence.
■ (Diaz v. Eli Lilly & Co; the plaintiff wanted to recover for loss of consortium alleging the
defendant’s negligence injured her husband. The husband was injured by D’s alleged
negligence in manufacturing a fungicide which failed to provide the user with adequate
warnings)

Wrongful Birth and Wrongful Life – are claims by parents and children who do not desire some aspect of
existence due to pain and suffering or self determination.
● Wrongful life - is usually allowed by courts.
● Wrongful birth - a claim brought by the parents of a child born with severe birth defects against a
doctor for negligence.
○ Emerson Elements
■ A patient’s recovery of damages for an unwanted pregnancy and birth, resulting from a
physician’s negligent performance of a sterilization procedure, should be limited to
medical expenses and lost wages, and should not include the cost of child rearing.
■ limited-recovery rule - a plaintiff may recover for the costs of any procedure, the
medical and hospital costs of the pregnancy, loss of wages, loss of consortium to the
spouse, and emotional distress resulting from the unwanted pregnancy
■ Full-recovery rule - recovery for all damages reasonably foreseeable as a result of a
negligent sterilization, including the costs of child rearing
■ Full-recovery rule with offset - recovery for the costs of child rearing, offset by the
benefits derived by the parents from having a healthy child.
■ (Emerson v. Magendantz; a plaintiff underwent a sterilization procedure. The procedure
was ineffective and the plaintiff became pregnant)

28
DUTY

Pure Economic Losses – a doctrine baring recovery for pure economic loss in a negligence action absent any other
injury unless a special relationship existed between the parties. Contracting parties may not bring tort claims against
one another for pecuniary losses if adequate contract remedies exist.
● Tacking on economic losses - if a plaintiff suffers personal or property damages, then they may tack on
their intangible economic harm as additional damages.
● Physical harm to one party, pure economic losses to another - the party suffering only pure
economic losses still cannot recover damages.
○ The Third Restatement - a claimant cannot recover for economic loss caused by
■ (a) unintentional personal injury to another party; or
■ (b) unintentional injury to property in which the claimant has no proprietary interest.
○ Reasoning -indeterminate and disproportionate liability and other means of protection like
business insurance.
○ 532 Madison Avenue Elements
■ If a business owner shows that the (1) defendant created a public nuisance and (2) the
business owner suffered an injury beyond that suffered by the community at large, then
they are entitled to recover.
■ (532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc.; the defendant’s
negligent construction caused a wall to collapse, covering the street with bricks. The city
closed 15 blocks for two weeks. The plaintiff’s stores did not suffer physical damage, but
lost business because customers could not reach the businesses)
● Nycal Elements - economic losses resulting from reliance on false information
○ Liability for false information is limited to a person, or a limited group of persons, for whose
benefit and guidance the information is supplied, and who detrimentally relies on the information
in a transaction the information was intended to influence.
○ Foreseeability test - a professional may be liable to any person they can foreseeably see
receiving and relying on their information.
○ Near-privity test - a professional may be liable to any person with whom the accountant is in
privity or a relationship sufficiently approaching privity. The test requires that:
■ (1) the third party relies on inaccurate information provided by the accountant;
■ (2) the accountant knows that the information will be relied on; and
■ (3) there is some conduct by the accountant that creates a direct link to the third party.
○ Restatement (Second) of Torts § 552 - a professional may be liable for providing false
information to a person, or a member of a limited group of persons, for whose benefit and
guidance the information is supplied, and who relies to his detriment on the information in a
transaction the information was intended to influence.
○ (Nycal Corporation v. KPMG Peat Marwick LLP.; an accounting firm negligently
misrepresented a company's financial statements. A corporation purchased a large number of
shares in the corporation based on the accounting firm's report. The company filed for
bankruptcy, and the corporation lost its investment)
● LAN/STV Elements - contracts
○ Courts generally do not recognize tort liability for economic losses caused by a breach of a
contract between the parties.
○ (LAN/STV v. Martin K. Eby Construction Co. Inc.; a transit authority contracted with an
architecture firm to prepare plans for a light-rail. The transit authority then entered into an
agreement with a construction company to build the light-rail according to the architecture firm's
plans. The architecture firm's plans were incorrect, delaying and increasing the expenses of the
project)

29
OWNERS AND OCCUPIERS OF LAND

Duty to Trespassers – a landowner owes no duty to a trespasser to make their land safe, to warn of dangers, to
avoid carrying on dangerous activities, or to protect the trespasser in any way.
● Trespassers - one who intentionally intrudes upon the property of another without consent or privilege
to do so.
● Exceptions - there are three main exceptions to the general rule that there is no duty owed to trespassers.
○ Constant trespass on a limited area - if an owner knows that a portion of their land is
frequently used by trespassers, then they must use reasonable care to make the area safe or warn
of dangers.
○ Discovered trespassers - once an owner has knowledge that a person is trespassing, the owner is
then under a duty to exercise reasonable care for the trespasser’s safety.
○ Children - a duty of care to a trespassing child is owed if the following requirements are met:
■ the owner knows children are likely to trespass in the area;
■ the owner knows that a dangerous condition poses an unreasonable risk of serious harm
to the trespassing children;
■ the trespassing child does not discover the dangerous condition or does not understand
the danger;
■ the benefit of maintaining the dangerous condition is slight, compared to the risk of harm
to trespassing children; and
■ the owner fails to use reasonable care to eliminate the danger.
○ Attractive nuisances - an owner must use reasonable care to protect trespassers from attractive
nuisances.
○ Natural conditions - courts are less likely to find liability when a condition is natural than when
it is artificial.

Duty to Licensees – an owner does not owe a licensee any duty to inspect for unknown dangers, but the owner
must warn of known dangerous conditions.
● Licensees - a person who has the owner’s consent to be on the property, but lacks a business purpose for
being there.
● Carter Elements
○ A landowner does not owe a duty of care to protect a licensee from unknown dangerous
conditions.
○ (Carter v. Kinney; early in the morning, while attending bible study, a person slipped on some
ice on a homeowner’s driveway. They broke their leg and argued they were an invitee)
● Social guests - are the main class of licensees.
○ Harper Element - No duty to warn -
■ An owner does not have to warn social guests of obvious dangers.
■ See Harper v. Herman

Duty to Invitees – the owner owes an invitee a duty of reasonable inspection to find hidden dangers and use
reasonable care to remedy dangerous conditions.
● Invitees - there are two types of invitees:
○ (1) persons who are invited by the owner onto the land to conduct business.
○ (2) members of the public invited onto the land for purposes for which the land is held open to
the public.
● Scope of invitation - if a visitor’s use of the premises goes beyond the business purpose or beyond the
part held open to the public, then the invitee becomes a licensee or a trespasser.
● Common-law first responders rule - first responders who enter private property in the performance of
their duty are treated as licensees, not invitees. Therefore there is no duty to inspect the premises or
make them reasonably safe.

30
OWNERS AND OCCUPIERS OF LAND

Rejection of categories – a number of courts have rejected the categories of trespasser, licensee, and invitee.
Instead these courts apply a reasonable person standard.
● Duty of care to social guests - many states have added social guests to the invitee category, so social
guests are entitled to reasonable care under the circumstances in almost all states.
● Trespasser remains a category - most states continue to hold that an owner owes a trespasser no duty
of care, except to refrain from maliciously injuring the intruder.
● Heins Elements
○ A landowner or occupier must exercise reasonable care for the protection of lawful visitors to his
property.
○ Policy reasons for this modern view include the harsh nature of the common law system coupled
with the idea that an entrant’s status should not determine the duty a landowner owes him.
Additionally, common law should not be a shield to those who would otherwise be held to a
standard of care.
○ (Heins v. Webster County; a man visited a hospital to see their daughter (personal) and arrange to play
Santa (business). They slipped and suffered an injury on some ice near the door)

Duty of a Business Owner – there is a duty to protect patrons from the criminal acts of third parties when those
acts are foreseeable.
● Four Approaches:
○ specific harm rule - a landowner has no duty to protect visitors from third parties unless the
landowner is aware of specific and imminent harm.
○ prior similar incidents test - imposes a duty to protect when the plaintiff can establish evidence
of previous similar crimes on or near the defendant’s land.
○ totality of the circumstances test - a standard that considers all of the relevant facts and
circumstances, rather than a few specific factors.
○ Posecai Elements - Balancing test
■ a court determines the duty owed by a defendant to a plaintiff to protect from third
persons by balancing the foreseeability and gravity of harm against the burden imposed
on the defendant to protect against the harm.
■ (Posecai v. Wal-Mart Stores, Inc.; a woman, wearing expensive jewelry, was robbed in a
Walmart parking lot. The woman argued that Walmart owed her a duty to have a security
guard because of local criminal activity)

31
DEFENSES TO NEGLIGENCE

Contributory Negligence – a common law doctrine holding that a plaintiff who is negligent, and whose negligence
is a proximate cause of their injury, is totally barred from recovery.
● Reasonable person standard - applies to the plaintiff as well as the defendant.
● Proximate cause - the plaintiff’s own negligence must be a proximate cause of their injury.
● Only applicable in negligence actions - contributory negligence is a defense to negligence; both parties
must be negligent in order to apply the defense.

Comparative Negligence – a system that divides liability between the plaintiff and the defendant in proportion to
their relative degrees of fault.
● Pure comparative negligence - apportions liability in direct proportion to each party’s fault in a
negligence case, regardless of how at fault the plaintiff is.
● Modified comparative negligence - a plaintiff may recover, but only if the plaintiff’s negligence is
equal to or less than the defendant’s negligence.
● Multiple parties - make comparative negligence harder to apply.
○ All parties before the court - if all defendants are joined in the same lawsuit, then only the
negligence due to the plaintiff is deducted from their recovery.
○ Not all parties before the court - the issue is whether the defendants before the court, who are
only partially responsible for the plaintiff’s loss, must pay for the whole loss.
■ Total abolition - liability is several, meaning each defendant is only required to pay their
own share of the total responsibility.
■ Hybrid - combine some aspects of joint & several liability with aspects of several
liability.
● Last clear chance - the contributory negligence of a plaintiff will not defeat his negligence claim if the
defendant had the last opportunity to avoid the consequence of the plaintiff’s negligence.
● Extreme misconduct - will reduce the plaintiff’s proportion of damages.
● Mitigation of damages - a principle that requires a plaintiff to take reasonable care to minimize or avoid
an injury. A plaintiff who fails to mitigate damages may not fully recover his or her losses.
○ Seat belt defense - a defense used to reduce a defendant’s liability when the victim's injuries
would have been less severe had they been wearing a seatbelt.
■ Contributory negligence - rejects the seat belt defense, allowing the plaintiff to pursue
recovery.
■ Comparative negligence - seat belt defenses may be used, but their application is state
dependant:
● The defendant is liable for injuries that would have happened if the plaintiff wore
a seatbelt.
● The defendant is liable for all injuries, but the plaintiff’s recovery is reduced.
● The defendant is liable for all injuries, but the plaintiff’s recovery for injuries that
could have been avoided is reduced.
■ Statutes - many states have mandatory seat belt statutes, but they prohibit or reduce the
effectiveness of the seat belt defense.
● Fritts Elements - malpractice
○ A physician may not avoid liability for negligent medical treatment simply because the patient’s
own negligence caused the injury necessitating the medical treatment.
○ A patient’s conduct might be an appropriate consideration in determining contributory
negligence if they:
■ fail to reveal important medical history to his physician,
■ provides false information,
■ fails to follow the physician’s advice, or
■ delays in seeking further recommended medical attention.
○ (Fritts v. McKinne; a drunk driver broke every bone in their face. They were taken to a hospital
and a doctor started performing a procedure. An artery was not in its normal place, but the doctor
did not look for it prior to starting the procedure. The driver died three days later)
32
DEFENSES TO NEGLIGENCE

Assumption of Risk – a complete defense to negligence liability that arises if a victim actually knows of the
existence and the nature of a risk yet voluntarily chooses to proceed in the face of that risk.

Express assumption of risk - an absolute defense to negligence, based on a plaintiff’s voluntary exposure to a
known danger by an express agreement that he will relieve the defendant of its legal duty toward him.
● Exceptions - there are three important exceptions to a defendant’s ability to enforce an express
assumption of risk
○ When the defendant intentionally causes the harm, or acts in a reckless or grossly negligent way.
○ The bargaining power of the defendant is grossly greater than that of the other party, usually the
good or service offered by the defendant is essential.
○ There is overriding public interest, which demands the court refuse to enforce the express
agreement.
● Hanks Elements - exculpatory agreements
○ Express exculpatory agreements that violate public policy are unenforceable.
■ Exculpatory agreements - an agreement in which the parties expressly agree that the
plaintiff will relieve the defendant of its legal duty toward the plaintiff.
○ (Hanks v. Powder Ridge Restaurant Corp.; the defendant operated a skiing facility that required
signing a waiver waiving liability for negligence. The plaintiff was injured while snow tubing on
the course)
● Tunkl Factors - six factors to determine if an exculpatory agreement violates public policy:
○ (1) whether the agreement concerns a type of business suitable for public regulation;
○ (2) whether the party seeking exculpation provides a service that is important to the public or a
matter of practical necessity;
○ (3) whether that party provides the service for any, or nearly any, member of the public who
seeks it;
○ (4) whether, because of the essential nature of the service, that party has an advantage of
bargaining strength against a member of the public seeking the service;
○ (5) whether that party provides only an adhesion contract, and does not allow the public to pay
additional fees to obtain protection from negligence; and
○ (6) whether the member of the public seeking services is placed under the provider’s control and
is subject to the risk of the provider’s carelessness.

Implied assumption of risk - arises if a victim knowingly and voluntarily participates in activities that carry
inherent risks.
● Murphey Elements
○ A plaintiff who voluntarily participates in an activity accepts the inherent dangers in it so far as
they are obvious and necessary to participation.
○ (Murphy v. Steeplechase Amusement Co.; the plaintiff was injured riding “the flopper”)
● Two requirements - to establish implied assumption of risk, the defendant must show that the
plaintiff’s actions demonstrated that they (1) knew of the risk in question and (2) voluntarily consented
to bear the risk.
● Voluntary assumption - the plaintiff’s assumption must be truly voluntary.
○ Duress - if the defendant’s conduct leaves the plaintiff with no reasonable choice but to
encounter a known danger, then there is no implied assumption of risk.
○ Not the defendant’s choice - if the plaintiff is responsible for placing themselves in the situation
exposing themselves to risk, then the defense applies.
● Sports and recreation - if a risk of injury is inherent in the sport or activity, then the plaintiff will not
be allowed to recover against the one who injured them.
○ Ordinary carelessness - plaintiffs cannot recover for harm derived from ordinary carelessness.
○ Intentional or reckless injuries - are outside the range of ordinary activity in the sport, thus the
defense will not apply.

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DEFENSES TO NEGLIGENCE

Statute of Limitations – A specified period of time, usually prescribed by statute, in which a party has to bring a
lawsuit.
● Medical malpractice - usually apply the time of discovery rule.
○ Time of discovery - the statute of limitations may not start running until the plaintiff discovers,
or ought to have discovered, their injury.

Immunity – at common law, there is sovereign immunity, preventing anyone from suing the government.
● State and local governments - most states and local governments have abolished or waived immunity.
○ Riss Elements
■ Absent legislation creating liability, a municipality is not liable in tort for a government
service’s failure to protect the public from criminal activity.
■ Dissent - there is no justifiable reason for the court’s refusal to place a duty on the
government to protect its citizens.
■ (Riss v. City of New York; the plaintiff complained to the police that a stalker threatened
to kill or harm them. The police did not help. The plaintiff was threatened with their "last
chance" andthe police did not respond. The plaintiff was seriously injured)
○ Lauer Elements
■ A municipality is immune from liability for a public employee’s discretionary act, but
may be subject to liability for a public employee’s ministerial acts.
■ To find municipal liability, there must be a duty owed directly to a particular person or
class of persons, and not simply to the public generally.
■ (Lauer v. City of New York; a boy died and a medical examiner incorrectly said the cause
of death was homicide. The father was a suspect. The investigation continued for 17
months, until examiner corrected the autopsy)

EXCEPTION - Federal Tort Claims Act - a federal statute that allows private citizens to file actions in federal
court against the United States for certain torts committed by persons acting on behalf of the federal government.
● Cope Elements
○ To be exempt from suit under the discretionary-function exception of the Federal Tort Claims
Act, a governmental agency or employee’s action or inaction must directly implicate political,
social, or economic policy choices.
○ Two-step process - to determine whether an action is exempt:
■ determine whether the conduct was discretionary, or a matter of judgment or choice
■ determine whether the decision was based on considerations of public policy and
involved an exercise of political, social, or economic judgment.
○ (Cope v. Scott; the plaintiff was driving on the proper side of a road maintained by the National
Park Service. The road was used as a thoroughfare and was worn and slick. Another driver slid
coming around a corner and hit the plaintiff's car. The plaintiff alleged that the NPS negligently
maintained the road and failed to place adequate warning signs)
● Ministerial act - a very specific statutory instruction gives a federal official specific instructions on
what to do.
○ Suits are not allowed - if the official was making a good faith effort to follow instructions.
■ Suits are allowed - if the official negligently failed to follow instructions.
● Discretionary function - a task performed by a government employee that involves a permissible
exercise of policy judgment by the employee.
○ Suits are not allowed - policy decisions - involve making decisions related to costs and
benefits, conflicting interests, or budgetary constraints.
■ Suits are allowed - non-policy decisions - decisions unrelated to governance.

34
THE DEFENSE OF PREEMPTION

Preemption – federal regulatory action may limit the states’ freedom to apply their usual rules of tort liability to
cases involving a federally regulated product.

Express preemption – a federal law specifically states that it preempts subsequent state laws.
● Medical devices - when the FDA pre-approves a newly-developed medical device, a user of the device
will not be permitted to recover under state tort law for the device's defectiveness. Federal approval
expressly preempts a state from awarding damages for the device's defectiveness.
● Medtronic Elements
○ State tort law can be preempted by a federal regulation that prohibits a state from establishing
safety “requirements” different from federal requirements.
○ (Riegel v. Medtronic, Inc.; a medical device failed during heart surgery. The device was given
premarket approval by the FDA as a Class III device. New York law held the medical device to
higher standards than federal law)
● Medical Devices Amendment
○ Rule - no state may establish any requirement that:
■ That is different from, or in addition to, any requirement applicable to the device, and
relates to the safety or effectiveness of the device, or to annoy other requirement.
○ Classes - there are three classes of medical devices with varying levels of oversight.
■ Class I - low levels of oversight; suable.
■ Class II - special controls and performance standards; suable.
■ Class III - rigorous standards; not suable, federal regulation preempts state law.
○ 510(k) - an express lane for FDA approval for products that are substantially equivalent to
another device. Other devices were grandfathered in.

35
THE DEFENSE OF PREEMPTION

Implied preemption – congress or a federal agency does not explicitly tell the states that they may not take a
particular tort related action.
● Direct conflict - the goals of a state law and a federal law directly conflict with one another.
○ Competing laws - make it impossible to comply simultaneously with a federal regulation and a
state regulation.
○ Different objectives - state law will be preempted if it is impossible to comply with the state law
and applicable federal law, or if the state law is in some way an obstacle to achieving Congress’s
purpose and objectives evident in a federal law.
○ Geier Elements
■ Conflict preemption may defeat state common-law tort actions based on strict products
liability.
■ Savings Clause - language in a statute, contract, or other legal document that creates an
exception to a rule stated within the document, or that provides for the enforceability of
portions of the document if other portions are declared to be invalid.
■ (Geier v. American Honda Motor Co.; the plaintiff sued after a car accident. Their 1987
car did not have an airbag. State law required airbags in all cars made from 1987 onward,
but federal law only required some cars be equipped with airbags)
● Occupation of the entire field - the federal government intends to occupy an entire field of regulation,
so federal law will preempt any state law, even ones that are not in direct conflict.
○ Need for uniformity - congress’s intention to create a uniform national rule indicates federal
intent to occupy an entire field.
● State tort remedies - merely allowing a plaintiff to recover in tort constitutes an implicit sort of
regulation that may be inconsistent with the federal regulatory scheme.
○ A manufacturer arguing for implied preemption should argue:
■ The conduct that the plaintiff argues the defendant was required to take under the state
common-law rules conflicts with the federal regulation; or
■ Allowing tort recovery would impede enforcement of the federal regulatory scheme.
● Prescription drugs - even though the FDA has authority to regulate prescription drugs, Congress has
not expressly dealt with preemption in the prescription drug context.
● Wyeth Elements - failure to warn
○ State tort-law products-liability claims for failure to warn are not preempted by federal law.
○ (Wyeth v. Levine; the plaintiff received an injection of a drug that resulted in amputation of their
arm. The plaintiff sued under state law, arguing the warning was inadequate. The danger of the
drug was known, but the company argued that its warning was sufficient under FDA regulation)
● Regulatory compliance defense - compliance with government standards is not an accepted defense.

36
STRICT LIABILITY

Strict Liability – the imposition of liability upon a defendant regardless of the defendant’s conduct or fault. Strict
liability is imposed only in limited circumstances.

Animals – liability for animals depends on the type of animal and its behavior.
● Domesticated animals - injuries caused by domestic animals like cats and dogs, or livestock, do not
impose strict liability unless the owner knows or has reason to know of the animal’s dangerous
characteristics.
● Wild animals - a person keeping a wild animal is strictly liable for all damage done by it as long as the
damage results from the animal’s dangerous propensity.
● Trespassing animals - owners are strictly liable for property damage caused by their trespassing
animals.

Abnormally dangerous activities – conduct that is so inherently hazardous that it cannot be made less risky by the
exercise of due care.
● Six factors to consider:
○ (1) is there a high degree of risk of some harm to others;
○ (2) is the resulting harm likely to be serious;
○ (3) can the risk be eliminated by reasonable care;
○ (4) is the activity common;
○ (5) is the activity appropriate for the place where it is taking place; and
○ (6) does the danger outweigh the activity’s value to the community?
● Unavoidable danger - there is no way the activity can be carried out safely even with the use of
reasonable care.
● Sullivan Elements - blasting cases
○ The safety of property and person is generally superior to a particular use of a property by its
owner.
○ A person may not use his property in a way that causes direct injury to another’s person or
property, regardless of whether the injury was intentional or negligent.
○ (Sullivan v. Dunham; the defendant hired two men to clear a tree with dynamite. The blast
launched debris onto a public highway, killing the plaintiff. The plaintiff's estate sued)
● Rylands Elements
○ A person who lawfully brings something onto his land that, if it escapes, is capable of doing
harm, is strictly liable for any harm occurring as a natural consequence of the escape.
○ (Rylands v. Fletcher; the defendant built a reservoir on land above the plaintiff's abandoned coal
mines. The reservoir broke and flooded the mines, damaging the plaintiff's property)

Workers’ Compensation – a form of insurance that compensates employees for on-the-job injuries without regard
to either the employer's fault or the employee’s.
● No fault - an employer is liable for on the job injuries, even ones that occur without fault. An
employee’s contributory negligence does not reduce their benefits.
● Arising out of employment - the injury must arise in the course of the employee’s employment
activities.
● Exclusive remedy - workers’ compensation is an employee’s sole remedy against the employer. The
employee cannot sue or recover anything for pain and suffering.
○ Intentional wrongs - by the employer will allow the employee to pursue a tort suit.
○ Third parties - who are liable for the employee’s injuries may be sued.

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PRODUCTS LIABILITY

Products Liability – an area of law in which manufacturers, distributors, suppliers, retailers, and others who make
products available to the public are held liable for injuries caused by those products under theories of negligent
design, manufacture, or failure to provide adequate warnings.

Negligence – ordinary negligence principles apply to cases where personal injury is caused by a carelessly
manufactured product.
● Privity rejected - one who negligently manufactures a product is liable for any personal injuries
proximately caused by their negligence.
○ Bystanders - can recover in negligence if they can show that they were a foreseeable plaintiff.
● Classes of defendants - parties at all levels of the chain of distribution are potentially exposed to a
plaintiff’s negligence claim.
○ Manufactures - the party most likely to have been negligent because they owe a duty not to:
■ Carelessly design the product;
■ Carelessly manufacture the product;
■ Fail to perform, or carelessly perform inspections;
■ Fail to package and ship the product in a safe or reasonable way; or
■ Fail to take reasonable care in obtaining quality components.
○ MacPherson Elements - manufactures and retailers
■ A manufacturer and a retailer are strictly liable in tort when someone is injured as a result
of a defect that was present in the product when the product was delivered to the retailer
and subsequently sold to the consumer.
■ There is a duty of care to ensure the safety of a product and a manufacturer is liable for
negligence for failing to meet that duty.
■ An ad hoc duty to inspect on behalf of the retailer.
■ (MacPherson v. Buick Motor Co.; the plaintiff purchased an automobile with a defective
wheel. The car collapsed, injuring the driver. The wheel was used by the defendant, but
not manufactured by them)
○ Escola Elements - Res Ipsa Loquitur
■ Res ipsa loquitur applies to a productif there is no evidence that the product changed
condition after being delivered by the manufacturer.
■ (Escola v. Coca-Cola Bottling Co. of Fresno; the plaintiff was working in a restaurant.
She was moving bottles of Coca-Cola delivered hours earlier. One of the bottles
exploded, causing serious injury)

38
PRODUCTS LIABILITY

Warranties – a guarantee by the seller or manufacturer of goods regarding the quality or performance of those
goods. In almost every state warranties are either express or implied.
● Express warranties - a guarantee by the seller or manufacturer of goods regarding the quality or
performance of those goods, which is expressly stated by the parties in an agreement.
○ Uniform Commercial Code 2-313 - gives a number of ways an express warranty may arise: (1)
a statement of fact or promise about the goods, (2) a description of the goods, (3) a sample or
model.
○ Type of strict liability - as long as the plaintiff can show that the defendant’s representation of
the product was not true, they may recover damages.
● Implied warranty - a guarantee that goods sold will be of reasonable quality and fit for the ordinary
purpose for which such goods are used.
○ UCC 2-314 - warranty of merchantability - a warranty that goods shall be merchantable is
implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.
■ Merchantable - the goods conform to reasonable consumer expectations.
■ Seller is a merchant - the seller must be in the business of regularly selling the type of
goods in question.
○ UCC 2-315 - fitness for particular purposes - a warranty arises where (1) the seller knows that
the buyer wants the goods for a particular purpose, and (2) the buyer relies on the seller’s
judgment to recommend a suitable product.
● Warranty defenses - there are a few unique defenses to warranty claims.
○ Disclaimers - a clause in a contract that excludes or limits an express or implied warranty.
■ Merchantability - a seller may make a written disclaimer of the warranty of
merchantability, but it must be conspicuous and must use the word merchantability.
○ Limitation of consequential damages - a seller can offer a remedy, but goods designed for
personal use are not subject to binding limitation of damages clauses.
● Usefulness of warranty actions - a plaintiff suffering only pure economic harm is better off suing under
a breach of warranty, rather than strict liability.

Strict Product Liability – a manufacturer or distributor is liable (1) if its product is defective, (2) the defect existed
when the product left its hands, and (3) the defect caused injury to (4) a reasonably foreseeable party.
● Distribution chain - strict product liability applies to anyone in the distributive chain.
● Meaning of defective - a defective product suffers from a manufacturing, design, or warning failure,
even though all possible care was exercised in the preparation and marketing of the product.
● Unavoidably unsafe products - a product will not be subject to strict liability if it is unavoidably
unsafe, and its benefits outweigh its dangers.
○ Prescription drugs, medical devices, and vaccines - will not be defective as long as there is a
single group of patients that benefit from the product.

Manufacturing Defect – a claim that a particular product received a (1) defect (2) during its manufacture resulting
in the product’s (3) deviation from its manufacturing specifications and causing (4) injury to the plaintiff.
● McCorvey Elements
○ The plaintiff is entitled to the benefit of an inference of a defect when the product malfunctions
during normal operation.
○ The plaintiff must prove that the malfunction was more likely than not caused by a defect.
○ (McCorvey v. Baxter Healthcare Corp.; a catheter spontaneously erupted inside a patient’s
bladder)

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Design Defect – a design is defective if the product fails to perform as safely as an ordinary consumer would expect
when used in an intended or reasonably foreseeable manner, and causes an injury to the plaintiff.
● Third Restatement - a product has a design defect when the foreseeable risks of harm posed by the
product could have been redacted or avoided by the adoption of a reasonable alternative design by the
seller or distributor and the omission of an alternative design renders the product not reasonably safe.
○ Practical alternative design -must be proved by the plaintiff.
● Structural defect - the plaintiff shows that the defendant’s choice of materials created a structural
weakness which caused it to break and injure the plaintiff.
● Lack of safety features - the plaintiff shows that it was reasonable (hand formula) to install a safety
feature to prevent specific harm.
○ State of the art defense - a counterclaim by a defendant that its product was not defective,
because the product conformed to safety and warning standards in existence or scientifically
discoverable at the time of manufacture.

Consumer Expectations Test – a test used to determine liability in products-liability actions. A product will be
found unreasonably dangerous and defective under the consumer-expectation test if:
● (1) the product fails to perform as an ordinary consumer would expect;
● (2) the defect existed when the product left the manufacturer’s possession;
● (3) the defect is the actual and proximate cause of the plaintiff’s injury; and
● (4) the product was used in a reasonably foreseeable manner.
● Camaco Elements - unreasonably dangerous
○ A manufacturer may be held strictly liable for a product’s design defects that make the product
unreasonably dangerous for consumers.
○ Ortho factors - determine whether a product is unreasonably dangerous:
■ (1) the product’s usefulness and desirability;
■ (2) the likelihood that the product will cause injury and the seriousness of such an injury;
■ (3) the availability of a safer substitute product;
■ (4) the manufacturer’s ability to eliminate the product’s dangers without making it less
useful or too expensive;
■ (5) the consumer’s ability to avoid the product’s danger through careful use;
■ (6) the consumer’s likely awareness of a product’s inherent dangers because of an
obvious condition, or the existence of warnings or instructions; and
■ (7) the feasibility of the manufacturer either raising the price of the product to spread the
burden of potential loss, or carrying liability insurance.
○ (Camacho v. Honda Motor Co.; the plaintiff injured their legs in a motorcycle accident. They
claimed that the manufacturer failed to provide crash bars, something an ordinary consumer
would expect)
● Soule Elements - the ordinary consumer
○ The use of the consumer expectations test is not appropriate in cases where the evidence does not
permit an inference that the product’s performance did not meet the minimum safety
expectations of ordinary users.
○ (Soule v. General Motors Corp.; the plaintiff was in a car accident where the toe pan crumpled
and severely hurt their feet. They sued the manufacturer, alleging defective design)

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Failure to Warn – allegs that a product is defective because of an inadequate warning that resulted in an injury to
the plaintiff.
● Common knowledge - there is no duty to warn of commonly understood dangers.
○ Non-obvious dangers - the defendant must provide an adequate and appropriate warning for
non-obvious dangers
● Third Restatement - a product will be deemed defective on account of inadequate instructions or
warnings when the foreseeable risks of harm imposed by the product could have been avoided by the
provision of reasonable instructions or warnings. The omission of the instructions or warnings renders
the product not reasonably safe.
● Post-sale warning and obligations - A manufacturer may be liable for failing to warn product users of
a defect discovered after a product’s initial sale if a reasonable person in the seller’s position would have
provided a warning.
○ Third Restatement Elements:
■ (1) the seller knows, or reasonably should know, the product poses a harmful risk;
■ (2) those who would benefit from a warning can be identified and unaware of the risk;
■ (3) a warning can be effectively communicated and acted upon; and
■ (4) the risk of harm sufficiently warrants a warning.
● Hood Elements - the manufacturer’s duty to warn
○ A manufacturer does not have a duty to warn about all potential consequences associated with
misusing a product, but only has a duty to provide a warning that is reasonable under the
circumstances.
○ A warning label listing every possible consequence from every possible misuse of a product runs
the risk of being too technical and dense to be adequately read and understood.
○ (Hood v. Ryobi America Corp.; the plaintiff bought a saw that contained several warnings not to
remove the blade guard. The warnings said that the blade guards were necessary to prevent
serious injury. Despite the warnings, the plaintiff removed the blade guard to cut a piece of wood
and the saw blade detached, cutting off part of his finger)
● Centocor Elements - the learned intermediary doctrine
○ A prescription drug manufacturer fulfills their duty to warn end users of its products of potential
risks by providing adequate warning to the prescribing physicians.
○ Perez Element - the learned-intermediary rule does not apply if a prescription-drug
manufacturer advertises directly to consumers.
○ Karl Exception, a minority of states - a drug manufacturer has a general duty to warn
consumers about the risks of their products.
○ (Centocor v. Hamilton; the plaintiff started taking a drug after watching a video from her doctor.
The video did not warn of symptoms she would later develop. The plaintiff stopped suffering
symptoms after discontinuing use of the drug)
● Vassallo Elements - implied warranty of merchantability
○ A defendant may not be held liable for breach of the implied warranty of merchantability for
failure to warn or provide instructions about risks that were not reasonably foreseeable at the
time of sale or could not have been discovered by way of reasonable testing prior to marketing
the product.
○ Implied Warranty of Merchantability - a guarantee that goods sold will be of reasonable
quality and fit for the ordinary purpose for which such goods are used.
○ The minority view - a manufacturer is fully informed of all risks associated with the product at
issue, regardless of whether this is actually the case at the time of sale, and imposes strict
liability for failure to warn of these risks.
○ (Vassallo v. Baxter Healthcare Corp.; the plaintiff underwent breast augmentation surgery. After
several years, the plaintiff discovered that one of the implants had ruptured and another was
leaking. It was revealed that the defendant knew about the risks)

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DEFENSES TO PRODUCTS LIABILITY BASED ON THE PLAINTIFF’S CONDUCT

Sanchez Elements - failure to discover the risk

● A plaintiff’s failure to discover or guard against a defect is not a defense to a strict-liability claim and
will not limit a plaintiff’s damages.
● Comparative responsibility reduces a plaintiff's damages in a strict-products-liability action if the
plaintiff's negligence is something other than the failure to discover or guard against a product defect.
● (General Motors Corp. v. Sanchez; the plaintiff's estate sued after the plaintiff bled to death. While
opening a gate, the plaintiff did not properly shift his truck into park. An expert theorized that the gear
shifted into reverse. The truck’s owner’s manual listed instructions to follow when parking the car)

Knowingly assuming the risk – the plaintiff is aware of a product’s defectiveness, yet voluntarily and
unreasonably decides to assume the risk of using the defective product. The plaintiff’s decision will reduce their
recovery.

Jones Elements - ignoring a safety precaution

● When a third party’s modification of a safe product renders it unsafe, the manufacturer or seller cannot
be held liable for harm resulting from the modification, even if the unsafe modification is foreseeable.
● (Jones v. Ryobi, Ltd.; the plaintiff's hand was crushed while operating a printing press manufactured by
the defendant. The plaintiff's employer modified the press by removing a safety guard to speed up
production. Removing the safety guard was a common practice in the industry)

Liriano Elements – foreseeable alterations

● In a products-liability action, a manufacturer may be held liable under a failure-to-warn theory even if a
third party's substantial alterations to the manufacturer's product preclude a claim for defective design.
● Manufacturers sometimes have a duty to warn of dangers of using the product even after it is sold if the
dangers are revealed by consumers’ use of the product.
● (Liriano v. Hobart Corp.; the plaintiff lost his hand and forearm while using a meat grinder
manufactured by the defendant. The plaintiff's employer removed a safety guard)

Use for unintended purpose – the plaintiff is barred from recovery if their use is (1) so unforeseeable or
unreasonable that (2) the misuse could not reasonably be warned against or designed against.

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