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1) Intent  harmful or offensive contact • No duty to rescue, unless law imposes, • Impact Rule: Physical harm required
2) Harmful or offensive contact results special relationship, or if Δ caused the • Zone-of-Danger Rule: Π must be in
► RST or White v. U. of Id. approach? harm (even if non-negligently). zone of danger of being harmed by Δ
• Eggshell Plaintiff Rule (Vosburg) SPECIAL RELATIONSHIPS • Closely Related Bystander (Dillon)
TRESPASS • Generally, no duty to control 3rd party 1) Π located near accident (proximity)
• To Land: Harm is not required • Exception: Exclusive control of Δ, e.g. 2) Π witnessed accident (visibility)
• To Chattels: Harm is required landlord (Kline). Must be foreseeable 3) Π and victim closely related
NECESSITY • Exception: Necessary to avert danger ECONOMIC HARM
• Necessity gives privilege to use land ◦ Target IDed by 3rd party (Tarasoff) • No liability except spec. relationship,
• Conditional Privilege - liable for harm ◦ Δ facilitated commission of crime public nuisance, intentional harm
◦ Δ breached promise to warn Π (Long) • Each piece of harm must be fseeable
• Objective standard. Ordinary person • Traditional Categories • Cognitive awareness required?
• Lower standard for children ◦ Invitees: remove traps • Goals, commensurability, etc.
◦ But, not when doing adult activities ◦ Licensees: warn of traps PUNITIVE DAMAGES
• Insanity a defense if ◦ Trespassers: don’t set traps • Malicious intent necessary
◦ Lack of control or understanding of • Rowland Factors (see reverse) • BMW v. Gore – Three Guideposts
duty, AND ◦ Lack of forewarning • Attractive Nuisances (see reverse) 1) Reprehensibility of Δ’s conduct
• Disability lowers standard to reasonable 2) Disparity b/w harm & pun. award
person with that disability (Fletcher) CAUSE-IN-FACT 3) Diff b/w award & civil penalties
CALCULUS OF RISK • “But for” Δ’s conduct, what happens? • Multiplier can’t exceed single digit
• Burden < Probability x Severity • Burden shifts to Δ if lack of proof due
CUSTOM to Δ’s negligence (Lone Palm Hotel) STRICT LIABILITY
• Relevant & persuasive, not dispositive • Increased chance of harm - Δ liable if: • Key: Uncommonness, dangerousness
• Departure from custom can show neg. ◦ Act wrong b/c it ↑ chance of harm • Natural vs. Unnatural, acts of God
◦ Same for Δ’s private rules of conduct ◦ AND, that type of harm occurs • Harm must also be foreseeable
• Dispositive in medical malpractice • Joint Liability - All Δs fully liable if: ABNORMALLY D. ACTIVITIES
• Doctors: Duty to inform Π of risks if ◦ Joint tortfeasors • See outline for RST’s factors
knowledge would affect his decision ◦ 2 independant tortfeasors, harm indiv • Social utility as a consideration?
STATUTES/REGULATIONS ◦ 2 subsequent torts, harm indivisible VICARIOUS LIABILITY
• Negligence per se if • Lost chance of survival (Herskovitz) • Int. torts: “characteristic to workplace”
◦ Law designed to protect against type • Alternative Liability (Summers) • Scope of Employ: Detour vs. Frolic
of harm that occurred, AND • Market Share Liability (Sindell) • Independent Contractors
◦ Π in class of people protected by law PROXIMATE CAUSE ◦ Apparent and Implied Authority
• Defenses: Necessity and Capacity • Three views
• Two ways of predicting result 1) Harm within the risk (fseeability) PRODUCTS LIABILITY
◦ Legislative history, or does violation 2) Causal connection • Manufacturing Defects: Π must show
of law increase risk of harm to Π 3) Policy judgment (Andrews) (1) It departed from intended design
• Courts liberal in interpreting purpose • For proximate cause (2) It caused injury
• Compliance with law relevant, not disp. 1) Must increase risk of harm, AND • Failure to Warn: Foreseeable risks
RES IPSA LOQUITUR 2) Harm must be within the risk could have been prevented by warning
1) Event usually doesn’t occur w/o neg. This test is sufficient but not necessary Design Defects
2) Cause within exclusive control of Δ • Intervention of 3rd parties • Consumer Expectations Test: Product
3) Not due to voluntary act of Π ◦ Liability only if ordinary and natural defective if it fails to perform as safely
• Shifts burden to Δ for circum. evidence • ◦ 3rd party act must be foreseeable as a consumer in Π’s position would
“Smokes out” evidence w/ multiple Δs ◦ Usually for neg., not for int. torts reasonable expect it to
• Foreseeability of rescue, Π’s reaction ◦ Allows Open & Obvious exception
CONTRIBUTORY NEGLIGENCE • Four Categories of Unforeseeability • Risk-Utility Test: Product defective if
• Affirmative defense, burden on Δ ◦ Extent of harm: Δ liable (eggshell Π) benefits of design outweighed by costs
• Excuse for private necessity ◦ Manner of harm: Δ liable (Nugent) ◦ Must Π show reasonable alternative?
• Harm must be within the risk (causal) · Waters must become placid again ◦ Halliday: Test not used for gun
COMPARATIVE NEGLIGENCE ◦ Plaintiff: Δ not liable (Palsgraf) ► Which test will court use? (or both?)
• Comp. negligence, NOT causation ◦ Type of harm: Fork! Factors • Foreseeability of harm, not intended
• Pure or Modified · Directness of harm use, is what matters (Volkswagen)
ASSUMPTION OF RISK · Degree to which it resembles an • Wade’s Unreasonable Dangerous
• Primary: Δ breached no duty, not neg. unforeseeable type or extent Factors (see reverse)
• Secondary: Unreasonable, Π is ContN · If Δ’s negligence caused other harm • RST Comments (see reverse)
• Waiver: Tunkl factors (see reverse) for which he is liable, thereby not Federal Preemption
• Reasonable assumption: fork fork! totally clearing him from liability • Nature of duty: Floor vs. ceiling
1) The magnitude of the risk. f) Seller must be in the business of selling. Does not apply
2) The value or importance of that which is exposed to the to the occasional seller
risk, which is what law seeks to protect g) Must be in defective condition when it reaches buyer, not
3) The value of what the person taking the risk is pursuing by subsequent acts
4) The probability that it will be attained by the conduct h) Seller not liable if injury results from abnormal handling
which involves risk (utility of the risk) i) Product must be unreasonably dangerous. Must be
5) The probability that it would not have been attained dangerous to an extent “beyond that which would be
without the risk (the necessity of the risk) contemplated by the ordinary consumer who purchases it”
j) Seller must give warnings for dangers that are not generally
RST § 339: ATTRACTIVE NUISANCE known and recognized. If warning given, and product is
Landowner liable for harm caused by artificial conditions if: safe if followed, it isn’t unreasonably dangerous
• Owner knows or has reason to know children are likely to k) If product is unavoidably unsafe, but prevents a greater
trespass, AND, harm (e.g. a rabies vaccine), it is not defective or
• Owner knows or has reason to know condition involves unreasonably dangerous. Seller not liable
unreasonable risk of harm, AND n) ContN of Π is not a defense, but if Π sees danger and
• Children, because of their age, won’t realize the risk, AND unreasonably continues use, this is an assumption of risk,
• Burden of eliminating danger slight compared to risk to and is a defense. If Π discovers a defect and continues
children, AND unreasonably to use the product and is injured, he’s barred
• Owner fails to exercise reasonable care to eliminate danger from recovery
or protect children ◦ Note: Although RST took no position on bystander’s
Note: Most courts do not apply this to natural conditions recovery, law now allows it


• Foreseeability of harm (breach) • Gravity of danger posed by challenged design
• Degree of certainty of harm (damages) (causation) • Likelihood such danger would occur
• Closeness of connection b/w Δ’s conduct and Π’s harm • Mechanical feasibility of a safer alternative design
• Moral blame of Δ’s conduct (fairness) • Financial cost of an improved design
• Prevention of future harm (deterrence) • Adverse consequences to product and consumer that would
• Consequences to Δ and community by imposing duty result from an alternative design
• Availability and cost of insurance (compensation) Unreasonably
Wade’s Factors in Determining if Product is Dangerous
FACTORS FOR MARKET SHARE LIABILITY • Usefulness and desirability of the product – utility to user and
• All named Δs are potential tortfeasor public as a whole
• Harmful products identical, share same qualities (fungible) • Safety aspects of the product – likelihood it will cause injury,
• Π unable to identify particular Δ who caused her harm probable seriousness of injury
through no fault of her own • Availability of a substitute product that would meet the same
• Substantially all manufacturers who created product during needs and not be unsafe
relevant time are named as Δs • Ability to eliminate unsafe trait without impairing usefulness
or making it too expensive
BMW v. Gore: Degree of Reprehensibility of Δ’s Conduct • User’s ability to avoid danger by exercise of care in use of
• Harm is physical as opposed to economic the product
• Conduct evidenced indifference or reckless disregard for • User’s anticipated awareness of dangers inherent in the
human health and safety product (general public knowledge)
• Target of conduct has financial vulnerability • Feasibility of manufacturer spreading loss by setting price or
• Conduct involved repeated actions, not an isolated incident carrying insurance
• Conduct was the result of intentional malice, trickery, or
deceit, instead of just a mere accident TUNKL FACTORS (for voiding liability waivers)
• Business generally though suitable for public regulation
§ 520: ABNORMALLY DANGEROUS ACTIVITIES • Importance of Δ’s service to the public
a) Existence of a high degree of risk of some harm to • Δ holds itself out as willing to provide service to any member
another person or his property of public who seeks it
b) Likelihood that the harm that results will be great • Essential nature of services gives Δ great bargaining strength
c) Inability to eliminate the risk by the exercise of • Public faced with adhesion contract; cannot pay reasonable
reasonable care fees for negligence protection
d) Extent to which activity is not a matter of common usage • Purchaser placed under Δ’s control, subject to risk and
e) Inappropriateness of the activity to the place where it was carelessness by Δ
carried on
f) Extent to which its value to the community is outweighed
by its dangerous attributes
► RTT scraps social utility (f) as a consideration.