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A. Elements of Battery
1. Act
2. Intent
a. Purposeful or
b. With a substantial certainty (Garrett)
c. Single intent: Intent to contact
d. Dual intent: Intent to contact, and intent to harm or offend (both)
3. Contact
a. Can be direct or indirect contact. The closer the victim, the more likely
the act is to cause harm.
4. Harm or offense (Snyder)
B. Offensive contact occurrs when the contact offends a reasonable sense of personal
dignity (Cohen)
C. Transferred Intent
1. Attempted tort against one victim, and harmed another (McBride)
2. Attempted tort against a victim, and caused a different tort
D. Liable for all harm that results (eggshell victim)
E. Exception: Children cannot form an intent under a certain age, but children can be
found liable if they appreciated that what they were doing would cause harm, or
was substantially certain it would cause harm (Garrett)
F. Insanity
1. Rational choices are not required
2. Can make a crazy choice to batter (Polmatier)
3. Assuming dual intent, the actor has to appreciate that her actions will cause
harm (White)

II. Assault
A. Elements of Assault
1. Act
a. Mere words may not be enough, probably need further action
2. Intent
a. Purposeful or
b. With substantial certainty
3. Cause
a. Fear or apprehension in the mind of another
b. of an imminent harmful or offensive contact
B. If a battery occurs and the plaintiff did not have time to fear, then no assault

III. False Imprisonment

A. Elements
1. Intent to confine
a. purposeful or
b. substantial certainty
2. Actual confinement
a. Physical confinement or
b. A false assertion of legal authority that confines someone (McCann)
3. Within a restricted area fixed by the actor
4. Confined person
a. has knowledge or the confinement, or
b. Is harmed by the confinement
B. Intent can be transferred
C. If the person has a reasonable means of escape, they must utilize it.

IV. Trespass to Land

A. Elements
1. Intent to enter land (as opposed to intent to trespass)
a. Purpose or
b. substantial certainty
2. Entry onto the land
3. Without permission
B. Extended liability: The defendant is liable even if no actual harm was done.
C. Limiting extended liability: Trespassing journalists are not liable for truth they
obtain while trespassing.
D. A possessor who is not an owner has a right to sue for trespass
E. No liability for someone who entered the land not by choice, such as an emergency
landing of a hang glider.

V. Conversion
A. Elements
1. Intent to take possession of item
a. purpose or
b. substantial certainty
2. Exercise substantial dominion over the item. Shown by:
a. Extent and duration of the control
b. Defendants intent to assert a right to property
c. The harm done
d. Expense or inconvenience caused
3. Deprivation of the item results
B. No requirement that the actor is conscious of his wrongdoing (Kelley)
C. Serial conversions: Plaintiff can only recover once if he sues both the theif and the
D. Bona fide purchasers: The buyer is not liable unless he knew of the conversion from
the original owner.
E. UCC: A merchant who is entrusted with the item, has rights over the item.
F. If the possessor takes the item in good faith, then no liability.

VI. Trespass to Chattels

A. Elements
1. Intent to take possession of item of another
a. purpose or
b. substantial certainty
2. Temporary possession of the item or
3. Item is interfered with
4. Without permanent depriation or destruction
B. Liability is imposed only if the owner suffers harm due to
1. Lost use or
2. item is harmed
C. If the possessor takes the item in good faith, then no liability.

VII. Intentional Infliction of Emotional Distress

A. Elements
1. Intent
a. Purpose or
b. Substantial certainty or
c. Recklessness
2. To act extreme and outrageous
a. Mere insults are likely not enough
i. Unless they are within the context of an employer-employee
relationship (Taylor) or
ii. It is an insult that society would deem extreme and outrageous
b. Carried out over time (GTE Southwest) or
c. Fiduciary duty between parties (Winkler)
3. Causes emotional distress
4. That distress is severe
B. Presence: The plaintiff must have been present to recover if a family member
(Homer), or present + bodily harmed if not a family member
1. Exception: Some circumstances do not require presence because the
severity of the distress is not disputed
a. A mother whose child is sexually abused
b. Direct family members of a hostage (Bettis)
C. Restatement
1. Conduct was extreme and outrageous
2. intended to cause distress or reckless in risking that distress
3. actually cause severe distress

VIII. Civil Rights Violations

A. Elements
1. Deprive another (Intent not necessary)
a. of a constitutional right
2. Under color of state law
B. Must show that the constitutional right was violated in order to have a claim.
1. 4th amendment: Unreasonable search and seizure (Brown and Graham)
2. 14th amendment: Must “shock the conscience” (Lewis and Alexander)
3. 8th amendment: Must actually be cruel and unusual punishment
IX. Self-Defense
A. Against Battery, Assault, False imprisonment: Reasonable force can be used against
apparent harmful or offensive conduct.
1. Privilege extends only as far as is reasonably necessary.
2. Liable for unreasonable harm (Spring gun and kid trespassing)
3. Deadly force can only be used if the harm threatened is death or serious
bodily injury.
a. value of human life outweighs property interests (Spring gun and Kid
4. Retreat
a. Defendant is not required to retreat in most jurisdictions
b. Some jurisdictions require reasonable retreat
i. Exception: If you are in your own home, not required to retreat.
5. Provocation: Insults and arguments do not justify a physical attack
B. Against trespass to land, chattels, conversion (A&P)
1. Common law: Private person has the authority to arrest without a warrant only
a. A felony is committed in his presence or
b. a misdemeanor is committed in his presence and there is a breach of
2. Exception: privileged to detain anybody he believes is taking his property.
a. Only extends to prevent theft or recapture, not for punishment.
If the person detained does not have the property, then liable for
false imprisonment.
3. Restatement: Private person has the authority to arrest without a warrant
a. Reasonable belief that another has taken a chattel
b. privileged to detain
c. for the time necessary for a reasonable investigation
C. Defense of Third Person
1. Same basis as self-defense of yourself.
2. Can be used if a mistake was made if reasonable belief.
D. Defense and Repossession of Property
1. Force can be used only at time of lost possession or in hot pursuit.
2. Land and consumer goods can only be repossessed by peaceful means.
3. Human life is more valuable than property
E. Discipline
1. Parents, guardians, and persons charged with caring for child such as teachers
a. Limits are not really defined for use of force
b. Generally, the standard is reasonable force.
2. Parents can use confinement

X. Consent
A. Elements
1. Understanding of the consequences
a. Capacity: In order to be incapacitated, the adult must show that he
i. couldn’t manage his own affairs or
ii. Did not understand the nature or character of the act or
iii. Cannot weigh the harms and risks against the benefits (Reavis)
iv. For consent to be ineffective, the defendant must know of the
2. Willingness to let consequences occur
B. Exceeding consent: If patient consents to one thing, but did not consent to others,
then the scope of the consent is exceeded (blood transfusion)
a. Exception: A surgeon is able to do reasonable acts in the area of the original
incision (cysts during appendectomy)
C. Scope of Consent
1. If a defendant has knowledge of something and does not convey that to the
plaintiff, he is liable (Johnson)
2. A parent consenting for teachers to use time-out does not consent for a time-
out in a poorly conditioned room
D. Revocation
1. Consent can be revoked at any time

XI. Necessity
A. Destruction of property for public good is ok. (firebomb house)
1. If a statute provides for recovery of the damaged property by owner, then state
compensates (Wegner)
B. A person can use property of another, or enter land of another to save his life or
others lives. (Ploof)
1. Must compensate the owner for any damage done due to your use (Vincent)

XII. Other Privileges

A. Arrests and Searches
1. Police are privileged to enter land to execute search or arrest warrants.
a. Cannot invite media to cover their heroics
B. Public Rights
1. A user of a public utility or common carrier has the privilege to enter
appropriate portions of the premises
2. One may enter land to reclaim goods that he owns.
3. One may use free speech to enter a public place to campaign on public issues.

XIII. Negligence: Duty

A. Default standard: Reasonable under the circumstances
1. Flexible test due to changing circumstances but rigid in terms of the standard
(gas in carburator)
a. In an emergency, the standard stays the same, reasonable person acting
during the emergency (guy at bank)
i. You are liable for an emergency situation that you create
2. Minors:
a. If engaging in an inherently dangerous activity, held to adult standard
b. If not inherently dangerous, then child’s standard (golf cart). Look to:
i. child’s intelligence, maturity, training, and experience under
those circumstances
c. Rule of Sevens:
i. Under 7: incapable of negligence as a matter of law
ii. 7-14: Normally incapable of negligence.
iii. 14+: Capable of negligence
d. Many states hold that children are incapable of negligence
3. Mentally disabled
a. Held to the same standard of care as any other adult (Creasy)
b. Mental and emotional disability isn’t considered (Creasy)
c. Assumed risk (for later)
4. Experts
a. Circumstances take expertise into consideration (construction guy)
b. Not a higher standard of care, but expected to use your expertise
5. Physical Disability
a. Part of circumstances (concrete slab)
6. Medical Emergency
a. Excuse if you prove it was impossible to cocntrol vehicle because of
medical emergency, no duty in a medical emergency
B. Court set standard, as oppossed to reasonable care under the circumstances
1. Driving
a. When driving at night, must drive at speed that is not exceeding
headlights (Marshall, overturned by Chaffin)
b. Autos on the road that are stopped have a duty to light them so they can
be seen by other drivers
C. Negligence Per Se; Legislation set standard, as oppossed to reasonable care under
the circumstances
1. Standard is a statute
a. If breached then ‘n’egligent, not ‘N’egligent (Rains)
2. For the court to apply the statute as the standard:
a. The person must have violated the statute
b. plaintiff must be within the class of persons protected by the statute
(kid underneath car)
c. injury must be the type that the statute was meant to protect against
(rabies dog)
3. Excuses: If one of these, or another reasonable excuse is not satisfied, then
negligent per se (Impson)
a. Violation of the statute is reasonable due to incapacity (Gobbo)
b. The actor does not know, nor has reason to know of the occasion for
compliance (did not know taillight just went out)
c. He is unable after reasonable diligence or care to comply (heart attack,
tried to get back in lane but couldn’t)
d. Confronted by an emergency not due to his own misconduct (Gobbo)
e. Compliance would involve a greater risk of harm to the actor or to
D. Custom
1. Not a substitute for reasonable care. Can be taken into account in terms of
circumstances (T.J. Hooper)
F. Duties for Common Carriers and host drivers
1. Common carrier: Those who are in the business of carrying passengers and
goods who hold themselves out for hire from the public
a. Some jurisdictions hold that they are owed the highest standard of care
possible due to the payment and trust that people are giving
2. Guest Statutes: If you pay them, they owe you the standard of care. If no
payment, then the passenger is owed a duty not to act wilfully or
a. These statutes were largely made unconstitutional due to equal
G. Landowners duties to Trespassers, Licensees, Invitees, and Children
1. Trespassers
a. Owed a duty to not act willfully or wantonly (Indians game guy)
i. If the trespasser is discovered, they are owed a duty of
reasoanble care (Indians game guy)
b. Child trespassers
i. Owed a duty of reasonable care under the attractive nuisance
doctrine in some jurisdictions. (kid and mom fell in
1. The place where the condition exists is one upon which
the possessor knows or has reason to know that
children are likely to trespass
2. The condition is one of which the possessor knows or
has reason to know and which he realizes or should
realize will involve an unreasonable risk of death or serious
bodily harm to such children
3. The children, because of their youth, do not discover the
condition or realize the risk involved in intermeddling with
it or in coming within the area made dangerous by it
4. The utility to the possessor of maintaining the condition
and the burden of eliminating the danger are slight
compared to the risk to the children involved
5. The possessor fails to exercise reasonable care to
eliminate the danger or otherwise protect the
ii. Common hazards such as ponds or fires cannot be considered
an attractive nuisance due to the burden of
eliminating the danger
iii. Adult rescuers of a child trespasser assumes the same status as
the child (kid and mom fell in pool)
2. Duties to licensees
a. Owe a duty to not act willfully or wantonly
i. Once the owner should have realized licensee was in danger,
reasonable care is owed
b. Most jurisdictions categorize social guests as licensees
3. Invitees
a. Most business and public invitees are invitees
b. Owed a duty of reasonable care
c. Open and obvious dangers
i. Landowners duty to protect against dangerous conditions does
not extend to open and obvious dangers to people of
ordinary intelligence (guy jumped into shallow end
of pool)
4. Natural conditions
a. Some courts hold that landowners are not liable for natural
accumulations of snow and ice
5. Firefighters rule
a. Firefighters and other peace officers are owed a duty not to act wilfully
or wantonly
i. Not reasonable care as long as the FF was injured in the course
of his employment
b. Other courts reject this rule becase it singles out peace officers, and is
riddled with exceptions.
6. Reasonable care standard for landowners
a. A man’s life or limb does not become less worthy of compensation
because he came onto the land of another; thus, reasonable
standard of care for all people.
i. It is no more of a burden to change a broken faucet for a
trespassor than it is for an invitee (Rowland)
b. Four factors to determine liability for a landowner under reasonable
care standard: (kid entered land and got electrocuted)
i. Where the injury occurred
ii. People should be able to use their property as they see fit
iii. Take precautions
iv. Did plaintiff have permission to be there
7. Recreational users
a. Protect landowners from liability to people who enter his land for
recreational use.
i. Duty to not act wilfully or wantonly
b. For reasonable care to be the standard, payment has to be made to use
the land
c. Similar to guest statutes, but have not been overturned in the same way.
8. Lessors
a. Traditional Rule
i. Landlords are only responsible when they contract to make
repairs, and are notified of what repairs need to be
made or
ii. when they conceal defects from the tenant
b. Modern Rule
i. A landlord has a duty of reasonable care in the maintenance of
his own property. (tenant falls through railing)
1. He is therefore liable to a tenant who is injured
2. Justified because landlord owns the property and
recieves the long-term benefits
H. Nonfeasance
1. No duty to act rule
a. Under the common law, one person does not owe another person a duty
to take action or affirmative steps for the other’s protection
i. To determine whether or not there was an act, have to look at
the scope of the activity; ex.: If you do not hit the
brake, no act, but the act was driving which must be done
ii. People have a right to voluntarily act, free will, the person
voluntarily put himself in the well, and we cannot
force the other person to help him by law, even
though morally he should have helped.
2. Exceptions, Qualifications, and Questions
a. If a person knows, or has reason to know, that his conduct, whether
tortious or innocent, has caused harm to another person, he
then has a duty to prevent further harm.
b. Restatement: A person who put him in the position has a duty to
c. A statute may require people to act to rescue with threat of punishment.
d. Voluntarily undertaking
i. Once you undertake to care for someone, you then create for
yourself a duty to continue caring for that person in
a reasonable manner (guys took care of drunk girl,
did so negligently)
A. You have prevented others from helping
1. Others think you are already helping or
2. You told them you are taking care of it
B. Made the situation worse by trying to take care of them.
1. Restatement imposes liability where defendant
discontinues aid.
ii. The state does not become the permanent guarantor of safety if
he once takes them into custody.
e. Special relationship: These relationships impose an affirmative duty to
i. Carrier-passenger
ii. Innkeeper-guest
iii. Landowner-lawful entrant
iv. Employer-employee
v. School-Student
vi. Landlord-tenant
vii. Friends (friend got beat up, other one had a duty to act due to
special relationship of companions)
viii. Custodian-person in custody
f. Due Process
i. The due process clause does not compel an entity to act unless
that person is in physical custody. (DeShaney)
A. State did not have control over the child, so they acted
in their discretion not to take him into
B. If a state officer takes actions that create danger,
Deshaney is no longer a barrier to recovery.
g. Child protective statutes create an affirmative duty to act. Many courts
have ruled that when child services statutes require
investigation and intervention on behalf of abused children, a
duty is owed or a special relationship is created requiring
reasonable care.
I. Contract and Duty
1. One who undertakes to do an act for another without reward, is not answerable
for omitting to do the act and is only responsible when he attempts to do it
and does it negligently. No liability in tort because he never did an
act. (boat guy doesn’t get insurance)
2. A contract can create a special relationship between the parties which
prescribes a duty of care to avoid injury. (contract for blood
3. No difference between residential and commercial leases. If one party
contracts to make repairs to unsafe situations, that creates a duty of
care to take care of those situations. (mobil oil)
4. Economic contracts create no duty in tort.
5. Promises to Third Persons
a. A third party does not have a right under the contract.
b. Contracting with a party does not create an affirmative duty to act to
assist third parties unless the contracting party: (Moch)
i. Has a special relationship to the third party
ii. Voluntarily undertakes to assist the third party.
c. If a party has a duty to others, and contracts those responsibilities out, a
third party who is injured has a cause of action against the party
who contracted to take care of the responsibilities the first
party (servicemaster).
i. If A shifts the duty to B:
1. Plaintiff is entitled to the same care from B as from A
2. B is subjected to a duty he did not have before
3. A may or may not be relieved of a duty
d. Reasonable reliance upon another party to do something gives rise to a
special relationship which creates an affirmative duty to
act. (cop at crosswalk)
i. If the injured party did not personally rely on the service, then
she never relied on it, thus, no duty to act. (people
saw, and reported assault)
e. Voluntarily undertaking to do something can create a duty that
otherwise does not exist.
J. Duty to Protect from third persons
1. A business owner’s duty to protect from third persons comes in three different
forms depending on jurisdiction:
a. Specific Harm (narrow): business owner only owes a duty to protect
patrons from violent third parties if he is aware of specific,
imminent harm about to befall them
b. Similar incidents (slightly broader): Evidence of previous crimes on or
near the premisis gives an affirmative duty to act.
c. Totality of circumstances test (broadest test): Takes into consideration
nature, condition, and location of the land as well as other
factually relevant circumstances bearing on foreseeability. Normally
focuses on the level of crime in the surrounding area.
d. Balancing test: Balances the foreseeability of harm against burden of
imposing a duty to protect against criminal acts of third
i. Problem is that this approach may take the breach test of Carroll
towing and put it into the duty section, thus making it a judge, and
not a jury determination.
2. A special relationship creates a duty to protect
a. Schools are required by law to take custody of children, thus become
pseudo parents while the children are in their custody.
i. The scope of the duty is limited by what risks are reasonably
ii. Only employees who have supervisory responsibility have a
duty to act.
iii. A duty of supervision is owed to each student at school.
iv. Schools do not owe a duty to students once the student is
released for the day and has left school grounds.
3. Defendant’s relationship with a dangerous person
a. Landlords
i. A landlord generally has no duty to protect.
ii. Providing security is a gracious undertaking and the failure to
maintain it provides no duty to care, assuming there
is no contract that provides for providing security.
iii. If a lessor has control over danger from a tenant, he is under a
duty of care to protect third persons from them.
1. If a person is shot by a tenant with a gun that the
landlord does, or should know that the
tenant possesses, the landlord will be held liable.
2. Dogs: Unless the landlord is one of the owners or
keepers of the dog, he cannot be held liable
for injuries the dog creates.
c. Parents duty to control children
i. Parents are liable only for failing to control some specific
dangerous habit of a child of which the parent
knows or should know in the exercise of reasonable
d. Therapists, and other professionals.
i. Generally, the rules for disclosure are governed by the rules of
the profession, or by statute.
ii. Therapists protective privilege ends, and the duty to report
begins when there is a specific threat to a person.
e. Doctor’s duty to inform may extend past patient
i. When a doctor treats a patient for a contagious disease, the
doctor must give the patient correct information
about the spreading of the disease, or faces liability
from others that the disease is spread to. (Sex parter
owed a duty from Hep patient’s doctor)
1. Duty extends to all persons likely to be affected by the
patient if the patient is not warned of her
ii. Does not apply in cases where the information is within the
realm of knowledge particularly known to the
patient (vision doctor, no duty to warn patient about peril to
other drivers.)
f. Bars
i. Common law: A bar who serves drinks to another is not liable
to a third person injured as a result of being served.
ii. Modern rule: One who sells intoxicating beverages owes a
duty to anyone who may be injured not to sell
alcohol to a noticeabley intoxicated person.
1. Policy reason for rule change: Lots of cars on the road
today, bar is in the best position to prevent
drunk drivers.

XIV. Breach of standard of care

A. Assessing reasonable care by assessing Risks and Costs
1. If one acts reasonably and under his best judgment, he has not breached his
duty of reasonable care (burning mower in garage)
2. An employer has not breached his duty if the employee has more knowledge of
the danger than the employer does – Employee was the best safety
provider. (Roofer)
3. A reasonable person would avoid conduct that creates risk if harm is
foreseeable; If the burden is greater than the benefits, then no
a. More expensive to train employees to do heimlich than the benefit of
having them trained, thus, no breach when someone chokes
b. Manufacturer of a product must anticipate the environment in which its
product will be used and design against reasonably foreseeable
risks attending the product’s use in that setting. (Boston
4. Defendant is not negligent for acts during its regular business operation
a. A garbage dump spooks horse; noise is part of operation, even though
spooking a horse is foreseeable
5. If B>PL, then the duty is not breached (Carroll towing)
a. B=Burden of alternative
b. L=Gravity of resulting injury
c. P=Probability that injury will occur
B. Assessing responsibility among more than one defendant; each faulty party must
bear hs own share of losses
1. Joint and Several liability
a. Plaintiff can enforce claim against either tortfeasor
b. Can obtain a judgment against both, but can’t collect more than full
2. Several liability
a. Defendant only pays their share of liability
3. Contribution
a. Plaintiff enforces joint and several claim against one tortfeasor
b. Defendant can then collect contribution from the other tortfeasors for
their portion of liability
4. Insolvent or immune tortfeasors
a. If joint and several liability, the one who judgment was enforced upon
loses out
b. If several, plaintiff loses out
C. Proving and Evaluating Conduct
1. Must show that there was someone who breached a duty
a. If you don’t remember what happened, how can you prove it.
b. Extreme difficulty of proving case does not relieve the burden of
producing sufficient evidence
2. Circumstantial evidence
a. can be used to prove a case, we like direct evidence, but unnecessary
b. Jury is allowed to make reasonable inferences (moldy wall in hotel),
and court cannot intrude so long as the inferences were
reasonable (Upchurch)
2. Non-Expert opinion: Witnesses cannot give opinions generally, only testify as
to facts.
3. Expert testimony
a. Unneccessary if the the reasonable care necessary is within the realm of
common knowledge (thumb in slide)
b. Allowed to give expert opinions or conclusions within their field of
expertise to help jury decide the case.
4. Slip and Falls: Have to prove that either:
a. Defendant created a dangerous condition or
b. Had actual or constructive knowledge of a dangerous condition and
failed to take care of it. Can be shown by:
i. Substance on the floor has been there for a “sufficient” length of
time and
ii. The premises owner, using reasonable care, would have
discovered the substance
D. Res Ipsa
1. Origins and basic features
a. Presumptive negligence
b. When an injury occurs, and couldn’t have occurred absent negligence;
the accident speaks for itself (Barrels)
i. Minus a reasonable explanation for why the injury happed, the
defendant will be held liable
ii. This forces the defendant to make a reasonable excuse.
2. Control
a. Plaintiff must rule out other causes; Control of defendant over
instrumentality of harm
i. Modern view is that the defendant does not have to be exclusive
control, only enough to allow the jury to make a reasonable
inference of negligence (elevator)
ii. At one time, control was taken very literally.
1. Woman in store, sat on chair, chair broke, court ruled
store was not in control
iii. If plaintiff can sufficiently rule out other causes, then it can be
inferred that the one left was negligent
1. Customer takes bottle home; explodes; shows that he
nor the store dropped the bottle; bottler
must be liable
iv. Access to public
1. If the instrumentality is accessible to the public, then
people may have interfered; no liability.
3. Slip and fall cases
a. Courts generally reject res ipsa in these cases
4. Multiple actors
a. When two defendants have consecutive control over something, and
harm results, then negligence of one of them can be
inferred whether or not you know exactly who did it
b. Defendant must then show why he was not negligent. If neither can do
so, both may be held liable
5. Equality of knowledge
a. The defendant can be liable on res ipsa if he is in exclusive control of
the knowledge needed to show negligence (plane crash)
6. Sufficiency of evidence
a. A plaintiff cannot assert res ipsa if he chose not to utilize available
evidence (run away car hit kid)
7. Runaway car
a. Driver parks on a hill; car rolls down
b. Plaintiff must show that someone else did not mess with car, or that
there was no mechanical failure that the defendant did not
know about.
c. Courts may let these cases go to jury anyway, even if defendant was
not in exclusive control

XV. Harm
A. Plaintiff needs to show that he was harmed by the defendant’s breach of duty.
B. Damages for negligence are primarily compensatory, no nominal damages without
compensatory damages

XVI. Cause in Fact

A. Plaintiff must prove that not only she suffered legally recognized harm; duty was
breached; but also must show that the harm was caused by the defendant.
1. But-for test: But for the defendant’s conduct, harm would not have occurred.
a. Requires that the judge and jury imagine an alternate scenario that
never occurred to see what would have happened without
defendant’s conduct. (X-Ray baby)
B. Problems with but-for test
1. Two or more actors contribute independently to an indivisible injury; no
concert or design between them (pond destroyed)
a. The burden is on the defendants to convince the trier of fact how much
each is responsible for.
b. If they cannot do so, then jointly and severally liable in that system, or
c. Jury has to determine liability in a several system.
2. Two or more actors contribute independently to a divisible injury
a. Each defendant is liable only for his portion of the damage.
3. Duplicative causation; only one tortfeasor is known
a. That tortfeasor will be held liable if his actions were a substantial factor
in causing the harm; i.e. his actions would have independently
done the damage (fire from railroad, held liable because his
fire was substantial factor). Were they necessary for the harm
that occurred?
4. Pre-emptive factor
a. Dynamiter blows up house before fire gets there. Fire is not cause of
destruction even if it would have burnt it had someone else
not blown it up
5. Enhanced causation
a. One caused harm, second comes along and makes it worse
i. Original tortfeasor liable for everything
ii. Second tortfeasor responsible for increase in harm
6. Can find that negligent behavior caused harm if
a. a negligent act increased the chances that a particular accident would
b. That accident did happen
7. Two defendants are negligent, only one causes harm
a. Wrongdoers should be left to work out who was liable between
themselves (quail hunters shoot friend)
b. Plaintiff must show that the defendants are the only ones who could
have caused the harm (blood transfusions)
i. This may create rule 11 problems
C. Proof of Causation
1. Probable future but for the damage
a. harm occurs on the way to a different kind of harm
i. the probable future that was likely as a result of the first harm
are taken into account for a determination of the
damages, and whether or not there is liability caused
by the intervening harm (kid falls from bridge,
grabs electrical wire)
2. Lost chance: Three approaches: (doctor-patient situation ONLY)
a. Traditional approach: Plaintiff must prove that as a result of
defendant’s negligence he was deprived of a 51% or better
chance of a better outcome. Damages received for entire
b. Relaxed Causation: Submit to a jury that defendant’s negligence more
likely than not increased the harm and destroyed a
substantial possibility of a achieving a more favorable
outcome. Damages received for entire injury.
c. Loss of opportunity: The lost opportunity is itself the injury. The
plaintiff only gets damages for the lost opportunity, not the
underlying injury.
i. Ex.: If the chances of surviving cancer are 33%, and the doctor
deprives you of a 51% chance of surviving the cancer, then
you receive, resulting in damagesof 100,000, then you receive
d. Increase risk of harm
i. If the doctor negligently does not diagnose, then he is liable for
the increase in harm that he caused (x-ray tumor not

XVII: Proximate Cause

A. Scope of risk
1. Foreseeability; The risk rule: If a reasonable person would not foresee that the
type of injury would occur with the breach of duty, then the defendant is
not liable (faulty buzzer and not sending ambulance)
2. Rescue
a. Danger invites rescue, therefore it is foreseeable that a person would
rescue someone you negligently harmed, thus, liability to
the rescuer.
3. Palsgraf rule
a. The defendant must be directly negligent to plaintiff
b. The plaintiff must be within the class of people it is foreseeable that the
defendant would harm.
i. If not foreseeable, then no duty, thus no liability.
4. Palsgraf dissent
a. Duty runs to the world at large.
b. Negligence toward one is negligent towards all
c. Proximate cause is not established if the harm is remote.
B. Assessing the Scope of risk.
1. Is harm outside the scope of risk because of the manner in which it occurs?;
Mechanism of harm
a. A negligent harm is not proximately caused if it occurs in an
unpredictable way (lid fell in vat of hot liquid).
b. If harm occurs in an unforeseeable manner, but the harm is the same
type and happened the same way as it would have in the
foreseeable manner, then the defendant will be held
liable (lantern fell in sewer)
c. A chemical reaction was unforeseeable in b, but dropping a lantern and
causing harm was foreseeable in a. Thus, liability in a, not
in b.
2. Is harm outside the scope of risk because its extent is unforeseeale?; Extent of
a. Thin skull cases
i. If the harm is worse than would be foreseeable by the negligent
act, the defendant is liable for the extent of harm
anyway. (diabetic in hotel)
b. Fire cases
i. If it is not foreseeable that a fire would spread as far as it did,
the defendant is liable anyway.
3. Is harm outside the scope of risk because they are not within the class of
people protected. (Who is harmed)
a. The harmed person must be within the class of people who would be
i. If a person is harmed in your parking garage, and that person is
not someone you are charged with protecting; i.e. a
tenant or employee; then you are not liable when that
person is harmed by another person who is brought
there (girl assaulted by cop)
4. Is Harm outside the scope of risk because it results most directly from an act of
an intervening or superceding actor
a. An intervening act is not necessarily superceding
i. A doctor who does not follow up on a prescription can still be
found to be liable even if a pharmacy negligently
fills the prescription
b. An intervening act that cannot be reasonably foreseen is a superceding
i. A criminal act used to not be foreseeable, today it is likely
foreseeable, thus, intervening. (derailed gas car,
dude throws match)
ii. It is foreseeable for a person to drive through an inadequate
highway barricade, thus intervening (flaming
iii. It is foreseeable that by giving someone a car with a defective
trunk will try to fix it; not foreseeable that while in
a parking lot doing so, someone would hit him;
c. Termination of risk; A defendant is liable for all injuries that result
until the termination of the risk; or, until the waters have
calmed from the original negligent act
i. Ex.: defendant forced plaintiff off the road; liable for any
damages that occur until plaintiff is safely back on
the road like he was before he was forced off
ii. Defendant is liable for any negligence that occurs in the
hospital if he is the cause of her being in the
hospital (Anaya)
iii. By stopping in a parking lot, risk was terminated in trunk case
5. Intervening force of nature
a. If it is foreseeable that by doing something, a force of nature would
intervene and cause harm, then the defendant is liable (gas
leaked, lightning struck)

XVIII. Contributory / Comparative Fault

A. Common law: Contributory Fault: Fault of the plaintiff will bar all recovery
1. Plaintiff’s unreasonable actions will negate all of defendant’s fault, thus no
recovery for plaintiff (horse rider)
B. Comparative fault: Three different types of statutes:
1. New York: Pure comparative fault. Plaintiff recieves less damages
corresponding to his percentage of liability in harming himself.
2. Wisconsin: Greater than equal: Plaintiff can recover if his fault is less than
that of the defendants; if he is 50% at fault, no recovery.
3. Other states: If 51% at fault, no recovery; 50% allows recovery
C. Comparative fault analysis
1. Jury should be instructed on the implications of their fault applications (Sollin)
2. To decide what percentages to assign liability, two ways are possible
a. Most used way: Cost of providing safety against the harm that
resulted (Wassel)
b. Restatement: Shares of responsibility
i. nature of the persons risk-creating conduct including any
awareness or indifference with respect to the risks
created by the conduct and any intent with respect to
the risks created by the conduct.
ii. The strength of the causal connection between the risk and the
3. Rescue
a. In contributory fault, a rescuer’s negligence is not taken into account
unless he acted recklessly (tried to help friend stuck under
b. In comparative fault, the rescuers negligence or recklessness in the
rescue is assigned a percentage of liability; albeit generally
lower than normal (guy entered house to save dog)
4. Res Ipsa
a. Jury has to assess unknown conduct of defendant with known conduct
of the plaintiff.
b. This kind of reduces the control rule of res ipsa.
D. Traditional defenses to contributory negligence; Most of these rules are annulled in
a comparative fault system
1. Last Clear chance
a. If the defendant has an opportunity to avoid the situation, they need to
avoid the situation, regardless of the plaintiff’s negligence
in creating the situation
2. Discovered Peril
a. If the defendant never knew of the last clear chance, then he is not
liable. This takes the “should have known” out of last clear
3. Defendant’s reckless or intentional conduct
a. Reckless and intentional acts trump negligence in contributory
b. Restatement calls for comparative fault rules for reckless and
intentional acts by the defendant; does not completely
disregard the plaintiff’s negligent concuct.
E. Criminal Acts by Plaintiff
1. If plaintiff’s injury is a direct result of his participation in illegal conduct, he
may not recover. (kid made pipebomb, injured himself)
2. If the defendant’s duty is to everyone, however, the criminal act of the plaintiff
will not be barred (badly manufactured car)
F. Causation and Scope of Risk in Comparative fault
1. Plaintiff’s fault as a superceding cause
a. Trespasser dives into a pool he knew was shallow
b. Court bars recovery
c. Superceding cause
2. If defendant and plaintiff cause separate injuries
a. Each is liable for the damage they cause
b. No comparative fault is necessary
3. Plaintiff and defendant cause separate but indistinguishable injuries
a. Plaintiff smokes, and defendant introduced asbestos
b. Court can
i. allow full recovery
ii. bar all recovery
iii. use comparative fault
4. Minimizing damages rule
a. If the plaintiff can minimize damages by reasonable efforts and
expense, he is required to do so
1. Ex.: plaintiff does not take pills to minimize damages that
defendant caused; Defendant is not liable for the
increase in harm
G. Allocating All responsibility to Defendant to protect the plaintiff from plaintiff’s
own harm.
1. An employer may have a duty to protect its workers from putting themselves
into harm. No comparative negligence (Bexiga)
2. A hospital has a duty to protect its residents from killing or harming
themselves (McNamara)
3. To make this decision, have to look at whether or not the risk was known to
the plaintiff, and if the plaintiff was putting others at risk of harm
besides just himself
H. Entitlements
1. A person has a right to use his own property how he sees fit. No contributory
negligence (flax near tracks)
a. may have a duty not to put it so close to danger that it is almost a lock
that it will be damaged (flax concurring opinion)
b. Exception: You may be liable for harm caused to a third party due to
your property increasing the risk of harm to the others property
2. Also entitled to use public property even though they may be subject to harms
from others’ negligence. No comparative fault.
a. No duty to protect one’s self
b. Some say we shoud do away with entitlements and judge on a case by
case basis.
XIX. Assumption of Risk
A. Express Assumption of Risk / Contractually assumed risk
1. Parties to a transaction are able to agree wich one should bear the risk of
injury (woman was informed it was alternative medicine; She
agreed to treatment; She assumed the risk; No liability (Boyle)
2. Releases
a. Even if a release is signed, if the signor is compelled to sign in order to
receive necessary services, then the release is not valid.
b. Scope of assumed risk: If the activity which caused the harm was
outside the scope of the risk that was agreed to, the
defendant can still be held liable (ATV course)
B. Implied assumption of risk: No verbal or written agreement
1. Confronting a known risk
a. If a plaintiff had knowledge of the risk, appreciated the risk, and
voluntarily exposed himself to the risk, he has assumed the
risk and cannot recover (Crews)
2. Assumed risk merged with comparative fault; This is secondary assumption of
risk, where the plaintiff proceeds to encounter a known risk imposed by
the defendant’s breach of duty.
a. Used when there is an established duty, such as a duty of a homeowner
to protect his servant, servant’s assumed the risk of their
being toys on the ground; thus, comparative negligence (Betts)
3. Primary assumption of the risk: By virtue of the nature of the activity, the
defendant owes no legal duty to protect the plaintiff from the
particular risk of harm that caused the injury.
a. Inherent risks
i. A defendant has no duty to protect a plaintiff against harm from
inherent risks, such as falling down on a ski hill.
1. But, if a plaintiff is injured by something that is not part
of the inherent risk, such as a bush on a ski
hill, defendant will have a duty, thus,
comparative negligence applies (Sunday)
ii. An inherent risk is something that cannot be removed through
reasonable care
1. Cannot remove the risk of falling while skiing, but can
remove the risk of falling due to a bush if
you remove the bush
iii. In most sports, the duty of the participants is to refrain from
reckless or intentional conduct, negligence by other
participants is an inherent risk. (Jockey and
hockey player)

XX. Statutes of Limitation

A. Injury Rule
1. The clock starts ticking when the injury occurs.
a. Very strict rule (guy with sponge in stomach)
B. Discovery rule
1. Clock starts ticking when the reasonable person
a. discovers or should have discovered the injury and
b. did or should have associated the injury with a particular defendant.
2. An optimistic person who doesn’t go to the doctor is not being unreasonable
(meat packer)
C. Continuous treatment
1. Delay of SoL while your treatment with a particular physician is continuing.
The clock starts ticking when your treatment from that physician
has ended.
D. Tolling
1. Minors: Clock starts ticking when child reaches majority
2. Forgetting to file does not stop the clock from ticking.
a. Some courts recognize memory repression, and some don’t
3. Disability: The clock doesn’t tick if you are under disability or mental
a. Clock ticks anyway if you can manage your own affairs.
E. Notice Bar
1. If you have to give an adverse party six months notice before filing a
complaint, your SoL is effectively reduced by six months.
F. Pre-Accrual Bar
1. This sort of statute shortens the length that the person has to discover his
a. A person should know within this time that an injury has occurred and
associate it with a defendant
G. Latent Potential Harm
1. Plaintiff knows of problem, but wants to delay suit because he believes the
injury will get worse and wants compensation for the damage
a. Court can:
i. Enhanced risk or Reduced chance Recovery
1. Allow plaintiff to recover now for actual injury plus
future injuries that might result but reduced
to reflect the probability
ii. Reject enhanced risk recovery and allow present damages but
also allow damages for future mental anguish
associated with worrying about possible further
iii. Reject a and b and only allow plaintiff to recover what he can
currently prove
iv. Leave open the chance for a second suit if the damage occurs
H. Continuing trespass
1. Some states make it so that a new cause of action is created everyday
a. Such as continuing to dump toxic chemicals into water supply

XXI. Preemption and Compliance with Statute

1. A statute or code is a minimum standard. Following it shows competent
evidence of due care, but not conclusive evidence.

XXII. Medical Practitioners and Other Professionals

A. Standard of care is that degree of care, skill and proficiency which is commonly
exercised by ordinarily careful, skillful and prudent doctors at the time of
1. Depending on the jurisdiction, practitioners can be held to a
a. Local standard
i. doctors are held to the standard established in their immediate
b. Modified local standard
i. Doctors are held to the standard established in their immediate,
or similarly situated communities.
c. National standard
i. Doctors are held to the standard established in the nation.
2. It is insufficient for plaintiff to show that another doctor would have followed
a different course of action. The testimony must set a standard
(doctor described that he would have acted differently)
3. The standard is understood as a rule for the circumstances involved in the
plaintiff’s case
4. Expert medical testimony is usually required to show the standard, although it
is possible that a treatise can do it (smith)
a. If an obvious standard, like don’t amputate the wrong limb, then no
expert is required
5. Where competent medical authorities differ, a doctor will not be held liable if
in his best judgment he followed a course advocated by recognized
professionals in his area of expertise.
6. Specialists are held to the standard of their specialty
7. Non-medical practitioners such as chiropractors are held to the standards of
their school of profession, not medical standards
B. Expert Testimony
1. Needs to be used most of the time to establish:
a. Standard
b. Breach
c. Causation
2. Federal Rules of evidence provides that treatises can be used and are not
3. Medical organizations sometimes establish guidelines for good medical
practice. Courts sometimes accept these into evidence for showing
a standard.
C. Good Samaritan statutes
1. Generally, they say that No doctor who renders emergency service at the scene
of an emergency can be held liable for damages
a. If the doctor had a previous relationship with the patient, this does not
2. Some courts rule that the “scene of an injury” includes a hospital (Hirpa)
3. Other courts do not (Velazquez) because
a. The doctor is in the best position to take care of the patient. The doctor
has the best equipment and it is where emergency work is done so
the patient is owed the standard level of care
D. Res Ipsa
1. When a patient recieves unusual injuries while subjected to medical care while
unconscious or otherwise incapacitated, all defendants who had any
control over his body or the instrumentalities which might have
caused the injuries may properly be called upon to meet the inference of
negligence by giving an explanation of their conduct (guy
injured while unconscious in hospital, all defendants could be sued)
2. Restatement
a. Exclusive control is no longer a strict requirement in res ipsa cases.
E. Informed Consent
1. Most of the time, these cases could also be a battery
2. Patient oriented standard:
a. A doctor owes his patient the duty to disclose in a reasonable manner
all significant medical information that the physician
possesses or reasonably should possess that is material to the
intelligent decision by the patient of whether or not to
undergo the procedure (harnish)
i. A layperson can determine what is material. No expert
testimony is required
ii. Sound medical judgment may indicate that disclosure of all
risks may complicate the medical condition, thus,
does not have to be disclosed
iii. The person must show that he would not have gone forward
with the procedure if given the information by the
objective standard:
1. A reasonable person, given the correct information,
would not have gone forward
3. Doctor oriented standard
a. Plaintiff is entitled only to disclosures that the reasonable medical
practitioner would have made in the same situation
b. Doctor has no duty to disclose statistical life expectancy info because it
was not info about risks. Standard in the medical field was not to
reveal this kind of info voluntarily.
4. Risk-free tests
a. A doctor has a duty to inform the patient of the danger of not going
through with a risk-free test (pap smear)
5. Patient’s duty to disclose
a. A patient may be chargeable with comparative fault for not disclosing
medical history (breast cancer chic)
6. Absent unusual circumstances, a patient may trust her doctor, does not need to
verify the information for comparative fault purposes (breast
cancer chic)

XXIII. Family and Charity Immunities

A. Spousal Immunity
1. Traditionally, spouses cannot be sued
2. Has largely been dropped.
B. Parent-Child
1. Traditionally, children could not sue parents
2. Immunity has been dropped, but numerous exceptions are kept:
a. The alleged negligent act involves an exercise of parental authority
over the child
b. The alleged negligent act involves an exercise of ordinary parental
discretion with respect to the provision of food, clothing,
housing, medical and dental services, and other care.
i. Supervision of children falls under parental discretion (folks
kept kid in closet, immune)
3. Children are allowed to sue to protect property interests
4. Can sue for Intentional Torts
5. Can sue if the relationship has been terminated either by majority or
6. A child possesses a cognizable claim for negligence if his injuries were
proximately caused by the parent’s breach of duty of care owed to society, separate and
apart from the parent child immunity (dude with the bullet/nail)
C. Charities
1. Traditional rule
a. Charities are immune from liability
2. Exceptions
a. Administrative negligence
b. Liable if insurance or other available funds could pay
c. Could not claim immunity against those who paid for its services
d. Intentional or reckless torts and others
3. General abolition of immunity
a. Restatement says no charity immunity
b. Some statutes have gotten rid of immunity
4. Individuals engaged in charitable activities
a. Originally individuals weren’t protected
b. Many statutes provide a limitation on the duty of various individuals
associated with charities or charitable acts.

XXIV. Governmental Immunity

A. Traditionally, government had absolute immunity
1. People could get compensation through private bill and that is all.
B. Federal Torts Claims Act: Passed to abolish federal government immunity
1. Start with the premise that the government can be sued like a private person
a. but not for punitive damages or interest
2. A lot of exceptions listed in the act.
3. Governing law is the law of the state in which the tort was committed
4. Six months notice is required
5. The court has also created exceptions not in the statute: Feres rule:
a. Government immunity is extended to claims from combatants that arise
that are “incident to service” determined by:
i. Location the injury occurred
ii. Duty status of service member
iii. Non-tort benefits payable
iv. Nature of plaintiff’s activities
b. Spouses and children of military folks can still sue
6. Discretionary Immunity
a. If the government decides not to regulate, then the government is not
liable for its discretionary decisions
b. If there is a statute or regulation governing the actions of a
governmental agency or actor, that person does not have
the discretion to not follow the regulation (polio)
c. 2 factors to determine whether there is discretionary immunity: (nuclear
clean up guys)
1. Was there an element of judgment or choice
2. Whether that judgment is of a kind the exception was designed
to shield; was there a policy decision to be made; ie.
Allocation of funds, etc.
d. Court cannot decide what is good or bad government; a bad choice is
C. State law immunity
1. Most states have some kind of way to sue their government
a. Many states follow the ftca
b. Others go in the reverse: gov is immune, but in these circumstances.
c. A few states retain complete immunity.
2. Government is generally liable for businesses they take on that a private
company may otherwise take on, such as the transit systems and
3. Discretion
a. Police are generally not liable for their resource allocation decisions
(lye in eye). There is not enough resources to go around.
(Court shooting)
b. If the police make a promise to do something, or a 911 operator tells
the person that they are on their way, the discretionary
decision has already been made, and the person can reasonably rely on
them coming. Thus, there is no immunity if they fail to fulfill
their promise (wrong address)
i. A police promise can be limited to the time and place they made
their promise. If something happens after that, even if they didn’t
fulfill their initial promise, they will retain immunity.
(police promised to show up, didn’t, lady was killed later,
c. Emergency services cannot use discretion to not follow established
custom to take care of a problem (ffers used hoses instead
of sprinklers, custom was sprinklers, no immunity)
4. Public Duty Doctrine
a. Public entities and officers are not liable to individuals for failure to
carry out a duty, even a statutory duty, owed to the public at
large (cops have a duty to protect, immunity if they fail to protect
a specific person)
b. A failure of duty to a specific individual may be actionable.
c. At common law, a county does not have an obligation to warn others
that they are releasing a criminal, unless the criminal
identifies a specific person they are going to harm.
i. Megan’s law, however, puts a duty on releasing agent to warn
those that they feel should be warned depending on
the degree of harm the criminal may pose.
d. Exceptions: Have to show a special relationship by showing:
i. There is a direct contact between the gov agency and the
plaintiff which sets the plaintiff apart from the
general public.
ii. There are express assurances given by a public official or
iii. Gives rise to reasonable reliance on the part of the plaintiff.
D. Officers
1. Judicial and Legislative immunity
a. Immunity is absolute
i. If they are acting within the scope of their duty.
A. If the same officers are acting under an administrative
or operational capacity, then no immunity
2. Quasi-Judicial Immunity
a. Absolute immunity extends to people who are not actually judges but
when they are doing something that a judge would do, such
as a probation officer giving recommendations to a judge.
3. Qualified Immunity for state actors; 1983 claims: Two questions:
a. Was there a deprivation of constitutional rights?
b. Was the right clearly established at the time of deprivation (Bad faith?)
i. Must be sufficiently clear that a reasonable official would
understand that what she was doing violated the right
(deprivation of right to conceive)
4. Federal Executive Branch Officers
a. Cannot sue federal officers under 1983, unless they are acting under
color of state law.
i. Can sue them directly under the constitution
A. No general immunity in such cases.
b. President is immune for official acts that violate the constitution
c. Westfall act:
i. Cant sue federal employees for negligent acts
ii. Have to refer to FTCA to see if you can sue the federal
E. State and Municipal Liability under 1983
1. States cannot be sued under 1983
2. Municipalities are not immune under 1983 but are only liable if the right is
violated by some policy of custom.
3. If the plaintiff can show that the custom was put in place with the purpose to
discriminated, or violated another right
4. If there is a rational reason for the discrimination, then the municipality will
not be held liable.
a. If the custom is to discriminate against something that is inherent (such
as race, sex) then it will be a lot more difficult to show that
there was a rational reason.
b. If the custom is to discriminate against something like domestic
violence victims, it will likely be a lot easier to show a
rational reason. (domestic violence victims were
discriminated against)

XXV. Emotional Harm

A. Parasitic damages: Damages recoverable for some other tort. Not a stand alone
B. Actual victim of an act that caused ED: Goes to legally recognized harm. If ED is
the only harm that is suffered, does the court recognize the harm?
1. Impact Rule (not widely used anymore): Cannot recover from fright or shock
if there is no physical impact resulting in physical harm.
2. Physical Manifestations: If fright or shock manifests into physical harm, the
plaintiff can recover.
3. Direct victim: No physical manifestation is required if you were a direct
victim of an act by the defendant. May need to show ED with
medical evidence.
4. Pre-existing condition: If the defendant’s negligence results in making a
person’s pre-existing condition worse, then the defendants is liable
for the aggravation.
5. Pre-existing relationship defendant owes a duty to protect from emotional
distress, such as a doctor or a funeral home.
C. Bystander’s suffering of ED
1. Zone of danger: Bystander cannot recover for ED unless he was in fear for his
own physical safety at the time of the negligent act.
2. Dillon: Plaintiff can recover if it was foreseeable that the plaintiff would
suffer ED from negligent act. These are guidelines:
a. Near the scene of the accident
b. sensory and contemporaneous observance (could have heard it)
c. Close relatonship to the victim
3. Thing: Changed Dillon to hard and fast rules
a. Must be closely related (blood or marriage)
b. Must be physically present at the scene of the injury, and an awareness
that the injury is occurring.
c. Must suffer serious ED beyond what a disinterested witness would
D. Direct Victims: The thing rules do not apply to a direct victim with a pre-existing
relationship to the other person. A pre-existing relationship prescribes a duty of
care to ensure that ED does not occur (doctor patient setting.)
E. Consortium: This is the loss of company, or in the case of spouses, the loss of
sexual relations.There can be three different types of loss of consortium:
1. Parent-Child: not likely to recover if adult child, but some states allow for
younger children
2. Child-Parent: not as likely to recover, but some states allow it
3. Spouse-Spouse: Most likely to recover from in most jurisdictions due to loss
of sex
4. Unmarried couples: Some courts have allowed it
a. Vermont’s ciril union state allows it for same sex civil unions.
F. General negligence prescribed to NIED cases:
1. Must prove duty, breach, harm/injury, cause in fact, and proximate cause
2. The ED must be severe
3. Expert medical or scientific proof is usually required.
G. Toxic exposures: Fear of Future Harm (not all courts allow this claim)
1. As a result of defendants breach of a duty owed to plaintiff, and plaintiff is
exposed to toxic substance that caused cancer, the plaintiff has to
show that it is more likely than not that they are going to get cancer.
a. If there is malice or fraud, then the more likely than not requirement
may be reduced.
2. Defendant will likely have to pay for medical monitoring costs

XXVI. Vicarious liability

A. Goals of vicarious liability
1. The prevention of future injuries
2. The assurance of compensation to victims
3. The equitable spreading of losses caused by the enterprise
4. Price of goods and activities should accurately reflect accidents they cause.
5. If product includes accident costs, the market will favor cheaper products.
B. General rule: Empoyers are liable for their employees negligent acts if they are in
the scope of employment when the tort occurred whether or not the employee was
told not to specifically do something. Factors for this determination
1. whether his conduct was authorized by the employer
2. the nature of the employment (was it foreseeable the employee would act in
this way, such as going to the bar on a business trip)
3. its object and the duties imposed thereby
4. whether the employee was acting in his discharge
5. whether his conduct occurred during the performance of services for the
benefit of the employer.
6. whether his conduct was in an incidental event connected with his assigned
C. Exceptions
1. Going and coming rule: Employer is not liable for the torts of employee’s who
are going and coming from work.
a. Caveats:
i. If employer expands its market pool and has to compensate the
workers for coming a longer distance, then going
and coming rule does not apply
ii. Dual purpose: If the employer is traveling, but also doing
something for the employer, going and coming rule
does not apply.
A. In some jurisdictions, the employer must also have had
control over the employee, along with a dual
purpose benefit.
iii. 24 hour employee: If a person is always on the job, then
whether going and coming, the employer will be
held liable
2. Frolic: If the employee was doing something for his own personal enjoyment,
not associated with employment, then the employer may not be
held liable until the employee is back on the job.
a. Detour: If the employee is merely on a detour, employer still may be
held liable.
D. Intentional Torts: An employer is not generally liable for the intentional torts of its
1. Exceptions
a. The intentional act is a natural incidence of the job, such as a
nurse hitting an alzheimers patient.
b. Causal nexus: It is foreseeable that the job will invite the intentional
act. (Ask about this in review)
c. If there is a motivation to serve the employer, such as beating someone
up in order to protect your employer.
2. Can still sue the employer for negligence because they were at fault for hiring
the person, or at fault for allowing the incidence to occur.
E. Employers who are not masters: Independent contractors
1. General Rule: Employers are not liable for the negligent acts of an
independent contractor
a. Exceptions:
i. Borrowed servant
A. If employer have control over the servant’s actions,
then liable even though he is not their
B. If it cannot be determined whether loaner or borrower
had control, and since both receive benefits,
they may be held jointly liable.
ii. Contractual agreement can determine who is liable for the
negligent acts of the contractor.
iii. Agency: The employer is liable for the acts of an agent,
if the employer had control over the day to day
activities of the agent. If control, then liable.
iv. Non-Delegable duties.
A. Apparent Agency: For a hospital: If the patient looks
to the hospital for care, then the hospital has
a duty to provide services that they cannot delegate
out to an independently contracting doctor.
B. Dangerous activities: If the employer knows that the
contractor is engaging in a dangerous
activity, the employer has a duty to make sure
that the contractor is doing the work safely.
v. . Repossession by owner: The owner is liable for damages that
occur once the item built by a contractor is back in his
A. Can relieve this burden with indemnity
B. Master is not responsible for damages while work is
being done unless the master controlled
them in an operational capacity.

XXVII. Strict Liability for dangerous acts

A. Restatement provides for strict liability when:
1. The defendant’s activity creates a reasonably foreseeable risk of harm
2. The risk is a significant risk
3. The risk remains even when reasonable care is exercised
4. The activity is not a manner of common usage.
B. Second restatement adds the value to the community, but this puts a balancing test in
the formula which makes the claim look like negligence.
C. Third restatement: Gets away fom the balancing test, justified by having to take the
bitter with the sweet of the activity.
D. Contributory negligence / ass of risk
1. No contributory negligence if activities are a foreseeable risk of participation
in the activity.
2. Assumption of risk can be a defense because the defendant knowingly
confronted the risk.

XXVIII. Strict liability for defective products.

A. Sellers are strictly liable for physical injuries to persons or property from defective
products, the injured person can recover without proving fault.
B. Economic harm is not covered by tort law because the plaintiff has the option of
bargaining for economic protection when the product is purchased.
C. Three types of product liability from defects:
1. Manufacturing defects
2. Design defects
3. Informational defects
D. Manufacturing defects
1. Second Restatement: Elements:
a. sells a product
b. Which is unreasonably dangerous
i. Courts determined that something is unreasonably dangerous if
it goes beyond the consumer’s expectation of the
A. Consumer expectation test: Tests defective and
unreasonably dangerousness of the product
by asking whether the product was dangerous
beyond the contemplation of the consumer.
ii. Substance natural to preparation: If the injury was caused by a
substance which is natural to the preparation of
something (food), then the product was not
unreasonably dangerous.
c. The product is expected and does reach the user without substantial
change in it’s condition.
d. Liability is imposed even if the manufacturer used all reasonable care
in the preparation and sale.
2. Third Restatement
a. Get’s away from consumer expectations
b. Adds distributor of the product (don’t have to actually sell)
c. Strict liability is applied if the product which caused injury was an
aberration of the intended design, even though all
reasonable care was applied in preventing the aberration.
E. Design defects
1. 2nd Restatement
a. Consumer expectations test: A product in a defective condition
unreasonably dangerous to the user or consumer if it is
more dangerous than an ordinary consumer would expect when
used in an intended or reasonably foreseeable manner.
b. Risk/ Utility test: If the benefits of the challenged design to not
outweigh the risks inherent in such design. This weighs the
liklihood of harm, the gravity of harm, and the cost of
preventing harm by using a different design.
c. Burden of proof: The defendant may have the burden of showing that
the risk utility balance shifts in his favor. (Barker)
2. 3 Restatement
a. Puts negligence back into strict products liability
b. Uses the risk/utility analysis from 2d.
c. Reasonable Alternative Design: Plaintiff has to show:
i. There was a safer alternative
ii. The safer alternative would have prevented or significantly
reduced the risk of injury withough substantially
impairing the product’s utility.
iii. The safer alternative was both technologically and
economically feasible when the product left the
control of the manufacturer.
F. Informational Defects
1. 2nd Restatement: The product is unreasonably dangerous because of a lack of
information about the product.
a. Even when a prouct is obviously dangerous, the manufacturer has a
duty of informing the consumer how to use the product
b. If it can be anticipated that someone would be injured by the product,
the burden of negating causation is likely put on the
c. The warning must be adequate enough to prevent the danger that is
warned against.
i. A product that is not adequately warned against will likely be
unreasonably dangerous.
2. 3 Restatement: Makes the lack of warning a negligence claim again.
a. If there are foreseeable risks that could be reduced with a warning, then
it is likely the defendant breached the duty to produce a safe
b. Says that no duty exists to warn of dangers that are obvious or should
be obvious
G. Defenses
1. Contributory negligence
a. Not used in second restatement because there is no negligence that can
negate strict liability.
b. Can be used in the third restatement because it is basically a negligence
c. If used, fits into comparative negligence scheme
2. Assumption of risk
a. If the plaintiff voluntarily and knowingly assumed the risk occassioned
by the defect, then assumption of risk is a defense.
3. Misuse
a. Some courts factor misuse into the determination as to whether the
product is actually defective.
i. If the misuse was foreseeable, then the product is defective.
ii. If unforeseeable then it was never a defective product.
4. Abnormal reactions
a. Defendant is liable for the extent of harm just like every other tort
i. Limit: Extremely abnormal reaction will not be compensated
for. There has to be an appreciable number of
persons who would be harmed in this way for it to be
5. Disclaimers
a. Manufacturer’s cannot disclaim design defects
6. Compliance with statute
a. Unlike in negligence, compliance with a statute that provides what type
of warning should be given is sufficient.
b. If there is no statute, then your duty is what the consumer would
expect. i.e. if you advertise in spanish, your warning should be in