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Torts Fall 2008


I. Intentional Torts
A. Battery
i. Does not have to be harmed
1. Act voluntarily
2. Intent
3. harmful or offensive to body or person
B. Assault
i. Words are not enough
1. Voluntary act
2. Intent
3. Cause imminent apprehension (expectation) of harmful or offensive contact
a. D must have knowledge of Ps intent to contact
C. Trespass and Nuisance
i. Trespass
1. Voluntary act
2. Intent to be in the place
3. Person or thing
a. Trespass to chattel
1. Intentional interference with persons use or possession of
their property
2. Person can get the property back
b. Trespass to land
ii. Nuisance
D. Transferred Intent
i. Tort to Tort
1. Ex. intent to commit a battery, but instead commit an assault
ii. P to P
1. Ex. intent to hit P1, but instead hit P2
iii. Tort P to Tort P
1. Ex. intend to battery P1, but instead assault P2
E. Necessity
i. Public Necessity- D not liable when acting in cases of public necessity
1. Row of houses in a town on fire, first five burning one after the other.
You knock down the 6
home to stop the fire and town from burning.
Not liable. Public necessity to knock down home to stop town from
burning down.
ii. Private Necessity- You have necessity based privileged but must pay for
whatever harm is done
1. Vincent v. Lake Erie Transportation- Ps dock damaged by D keeping
vessel tied to it during storm. D privileged by necessity of storm to tie
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vessel to dock to save the vessel, but must pay for damages to Ps
2. If you interfere when a person trespasses out of necessity you will be
held liable
II. Negligence
A. Definition: Not doing something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs, would do.
B. Elements: duty, breach, cause , damages
i. Duty (duty of reasonable care)
1. Duty of reasonable care
a. Vaugh v. Menlove- haystack case
1. Care taken by a prudent man; Reasonable care is an
objective standard; Doing something a prudent and
reasonable man wouldnt do;
2. nitro-glycerine case
b. Reasonable man
1. 2
restatement torts- the reasonable man is a fictitious
person, who is never negligent, and whose conduct is
always up to standard. He is not to be identified with the
members of the jury, individually or collectively.
c. Reasonable conduct as a balancing of costs and benefits
1. Learned Hand Formula B<PL= negligent (if duty not given)
a. B= burden of prevention or avoidance
b. P= probability of loss
c. L= magnitude of loss that would be avoided
2. Exceptions to reasonable person standard (evaluation methods)
a. Especially dangerous instrumentalities
1. Care required is always proportionate to risk involved.
b. Emergencies ( helpful to analysis of reasonable person)
1. No related negligence prior to emergency; comes about
suddenly and without warning; reaction was spontaneous
without time for reflection.
a. Swerve to miss on-coming car
c. Actors knowledge and skill (Special skills & knowledge is
1. Standard person becomes a reasonable man with such
superior attributes
a. Actor w/more than min. qualifications, is required
to exercise superior qualifications reasonable under
the circumstances.
d. Youth: Special treatment for minors (Special standard of care)
1. Must decide if child is negligent or not
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a. A child is held, only to the exercise of such degree
of care and discretion as is reasonably expected
from children of his age, intelligence, and ?.
b. Policy- easier to predict behavior of child and an
adult can adjust his behavior in accordance
w/knowledge of what children can do.
2. No Application when:
a. engaging in an activity that is normally one for
b. engaging in inherently dangerous activities, child
will be held to adult standard of care (snowmobile
a. Policy: Childrens activities have less
inherent risk than adult ones; Lets kids be
3. 2
restatements torts- if the actor is a child, the standard of
conduct is a reasonable person of like age, intelligence, and
experience under like circumstances
4. Parents may be financially responsible for acts of children is
some states
e. Physical and mental disabilities
1. Physical (Special standard of care)
a. Care an ordinarily prudent person with the same
disability would exercise under the same or similar
b. A handicapped person must exercise for his own
safety due care. blind guy walks off platform
c. Policy: Want to encourage participation in society;
Behavior/disability able to be seen
2. Mental
a. General duty of care
b. Exception: If policy dictates no initial duty of care
c. Measure of duty owed (relationship; foreseeabilty
of harm; public policy concerns); Alzheimers case
(patient had no duty to nurse)
d. Policy: Society unable to protect self against
unpredictable behaviors
f. Professional Standard
1. Traditional
a. Dr.s custom and practice set the standard of care.
b. It becomes a professional standard of care
a. Must show breach of standard with expert
c. Professional prudence
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a. Actual or accepted practice within a
profession, rather than theories about what
should have been done
d. Restatement
a. Physician must exercise that skill and
knowledge normally possessed by other
e. Compliance with this standard will not be a
complete defense to professional malpractice
2. Alternative
a. Reasonable Dr. standard
b. Reasonable Dr. would or wouldnt have done
a. Must show behavior is unreasonable for Dr.
in same situation with expert testimony
c. Negligence
a. Physician is required to use due care; the
only thing that changes is the makeup of
the group to which Ds conduct is compared
3. Common knowledge exception
a. Negligence is so gross and not related to
complicated diagnosis, treatment, or medical
management, expert testimony will not be
required, as a lay person would be able to
understand and determine behavior
4. Should Professional standard apply?
a. Should be used when the nature of the group and
its special relationship with its clients assure society
that those standards will be set with primary regard
to protection of the public rather than to such
considerations as increased profitability
b. Alternative approach: National Labor Relations Act
a. Work is professional if
i. Work must be predominantly
intellectual and nonroutine
ii. Must involve the consistent
exercise of discretion and judgment
iii. Must be standardized in terms of
iv. Must require knowledge
customarily acquired by specialized
study in an institution of higher
5. Medical Malpractice
a. Locality rule
a. Strict
i. Degree of care, skill, proficiency
which is commonly exercised by
ordinarily careful, skillful, and
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prudent physicians at the time of
the operation and in similar
ii. Usually application comes in when
Dr. practices in rural areas as
opposed to a major city
b. Modified
i. Degree of care, skill, and proficiency
exercised by reasonably careful,
skillful, and prudent practitioners in
the same class to which he belongs,
acting under the same or similar
b. Informed consent
a. Prudent patient (materiality of risk)
i. Patient must show in a P in same
situation would not have consented
to the specific medical treatment
ii. Dr. discloses all risks and patient
chooses to accept and proceed with
iii. Patient makes best choice for
iv. Objective standard
v. Risk is deemed material when a
reasonable patient in patients
position would be likely to attach
significance to the risk or cluster of
risks in deciding whether to forgo
proposed therapy or submit to it.
b. Professional Standard
i. Dr. makes best choice and
reasonable professional would have
done the same in disclosing
ii. Dr. discloses what he thinks is most
iii. Rests on belief that only a physician
can effectively estimate both the
psychological and physical
consequences that a risk inherent in
a medical procedure might produce
in a patient
iv. Dr. considers the state of the
patients health and whether risks
involved are mere possibilities or
real hazards
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c. Failure to comply with either standard must
be shown as well as such failure being the
proximate cause of Ps injuries
6. Legal malpractice
a. Locality rule
a. The customary skill and knowledge which
normally prevails at the time and place
i. Can be the state, city, or nation
b. The degree of care, skill, diligence, and
knowledge commonly possessed and
exercised by a reasonable, careful, and
prudent lawyer in practice is this
i. Because barred in that jurisdiction
ii. Lawyer is responsible for knowing
laws of that jurisdiction
iii. Most like the state locality
b. P must show
a. Employment of the attorney; or some other
basis for a duty
b. Failure of the attorney to act as well as the
standard of care required
c. Causal connection between the negligence
and Ps harm
d. Requires expert testimony
i. Subject to common knowledge rule
c. Liability
a. Violation of duty makes attorney liable for
any reasonably foreseeable loss caused by
his negligence
b. In a tort claim requires proof that P would
have had a better outcome had attorney
exercised adequate skill and care
i. Requires a trial within a trial. Court
must retry original case to
determine if a better outcome
would have happened and if
negligence is found, then the
consequences of the negligence
must be decided.
c. An attorney is usually protected from
liability for an error in judgment on and
unsettled point of law.
i. If however lawyer is aware of such
an issue and that the issue might be
of consequence to a client, the
lawyer is under a duty to disclose
the nature of the issue to the client.
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g. Owners and Occupiers of Land
1. Traditional approach (common law)
a. Trespasser
a. Lowest standard of care
b. O is bound to refrain from reckless, willful,
or wanton conduct toward trespasser
i. Reckless- O knows of risks and
ignores risk.
c. Mere trespasser
i. One who wrongfully comes upon
the land of another, but without
any motive, design, or intent to
engage in further wrongful acts
d. Ryals v. US Steel
i. Public policy justification for
lowering the requisite degree of
ii. O owes a duty not to intentionally
injure an adult trespasser who
wrongfully enters upon his land to
commit a crime
iii. O cannot set booby traps or sick
dog on trespasser
e. Children and attractive nuisance
i. Traditional doctrine creates an
exception to general duty owed to
ii. A child trespasser can recover by
iii. a) child was attracted onto land by
an artificial condition; b) possessor
of land failed to use reasonable
care to avoid injury
iv. Restatement- a) O knows or has
reason to know children are likely
to trespass; b) O knows or has
reason to know condition involves
an unreasonable risk of death or
serious bodily harm; c) children do
not discover condition or realize
risk; d) maintenance of condition
and burden of eliminating danger
are slight as compared with risk to
children; e) O fails to exercise
reasonable care to eliminate danger
or protect child.
b. Licensee
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a. O owes duty not to injure by willful,
wanton, or grossly negligent conduct.
b. O must use ordinary care to warn of or
make reasonably safe a dangerous
condition which O is aware of and licensee
is not
c. Proof
i. Condition created unusual risk of
harm to him
ii. O actually knew of condition
iii. Licensee did not know of condition
iv. O failed to exercise ordinary care to
protect licensee from danger
v. Os failure was a proximate cause of
injury to licensee
d. Defined
i. Use of premises is extended merely
as a personal favor.
ii. Invited on the premises as a social
guest; expected to take the
premises as O uses himself, no
expectation they will be prepared
for his reception or precautions
taken for his safety in any manner
that O does not do for himself or
members of his family.
c. Invitee
a. O owes duty to exercise ordinary care to
protect from risks of which O is actually
aware and those risks of which O should be
aware after reasonable inspection
b. Proof
i. Actual or constructive knowledge of
condition (knowledge is imputed if
O has created the condition that
causes Ps injury)
ii. Condition posed unreasonable risk
of harm
iii. O did not exercise reasonable care
to reduce or eliminate risks
(extends inspection of premises to
discover any dangerous conditions
or latent defects, followed by the
repair, safeguard, or warning of
such as may be reasonably
necessary for protection of P)
iv. Failure to use such care proximately
caused Ps injuries
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c. Defined
i. Public invitee or business visitor
ii. Public: invited to enter or remain as
member of public for a purpose for
which the land is held open to the
iii. Business: invited to enter or remain
for purposes directly or indirectly
connected with business dealings
with O.
d. Some jurisdictions define social guests as invitee or
as licensees that are entitled to same care as an
2. Slip and Fall (invitees- duty is higher and usually a place of
a. Constructive notice
a. D will be treated as if he had actual
knowledge of hazardous condition if there
is proof supporting the conclusion that the
condition was present for a significant
period of time prior to Ps injury
i. Proof that hazard was present long
enough to have been noticed will
be equivalent to proof that Ds non-
response to the hazard was
ii. Thawed ice cream that is dirty and
b. Mode of operation
a. D will be treated as having actual
knowledge of a hazardous condition if D has
chosen to operate an enterprise in a way
that makes it likely that dangerous
conditions will occur often
i. When it is the nature of the
business that creates the hazard,
inference of negligence exists and
shift burden to D to negate by
submitting evidence of due care.
ii. Loose grape by register case.
3. Open and obvious dangers; natural accumulations
a. Natural accumulation rule with an open and
obvious danger exception
a. The exception is part and parcel of the rule
because dangers of natural accumulations
are obvious
b. P is in a much better position to prevent
injuries because P can take precautions at
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the very moment the conditions are
b. Where there is a natural accumulation, D will have
no duty to protect against as it is considered an
open and obvious danger; or one that P should
expect to occur and thus continually guard against
a. Ice, snow, rain
b. If Os conduct intensifies the risks related to
these conditions, such as directing the flow
of water to collect higher than normal, O
will usually lose the benefit of the rule.
c. In some jurisdictions rule applies to all hazards,
whether natural or man made
4. Criminal conduct by 3
a. General
a. O has no duty to protect another from
criminal attack; and will not be generally
held liable for the willful criminal act of a 3

person which could not be foreseen or
b. Prior similar acts incidents test (possibility of
another crime by 3
a. occurrences of prior offenses on the
premises is a key element of proof
b. If place and character of the business or Os
past experience is such that he should
reasonably anticipate careless or criminal
conduct on the part of 3
persons, O has a
duty to take precautions against criminal
conduct by 3
i. Offenses must be of same type and
nature as the offense complained
of, and must have occurred with
some frequency
ii. Criticized because it requires that
some person have an initial injury
for O to have a duty
c. Totality of circumstances test (frequency and
severity of possible criminal conduct that is above
the norm)
a. Where circumstances exist from which the
owner could reasonably foresee that its
customers have a risk of peril above and
beyond the ordinary and that appropriate
security measures should be taken.
i. Only where the frequency and
severity of criminal conduct
substantially exceed the norm or
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where the totality of circumstances
indicates the risk is foreseeably high
that a duty should be placed on O
to provide security.
ii. If O has duty, such security
measures must also be reasonable
under the totality of the
iii. Circumstances must relate
specifically to the foreseeability of
the attack on P.
5. Tenants and Guests
a. Landlord is under no duty to social guest (licensee)
to repair or remedy a known condition
b. Lessee has burden of maintaining the premises in a
reasonably safe condition to protect persons who
come upon the land.
c. Landlord-tenant relationship alone is not sufficient
to make landlord liable for tortious acts of tenant
d. Modern law has recognized 6 exceptions limit on
landlord liability for a defective condition existing at
time of lease
a. Undisclosed dangerous condition, known to
lessor and unknown to lessee
b. Condition dangerous to persons outside the
i. Nuisance
c. Premises leased for admission of the public
i. Lessor under affirmative duty to
inspect and repair
d. Pars of land retained in lessors control
which lessee is entitled to use
i. Apartment buildings common
passage ways
e. Where lessor contracts to repair
f. Negligence by lessor in making repairs
i. Only if lessee does not know that
repairs have not been made or have
been made negligently
6. Modern Trend
a. Eliminates 3 category system of trespasser,
licensee, invitee (nearly have of states have done
a. Changes to two categories
i. Lawful entrants
ii. Standard of reasonable care to all
lawful visitors
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iii. O is required to exercise reasonable
care in maintenance of premises for
the protection of lawful visitors
iv. Trespassers
b. Changing jurisdictions have said 3 category
system is difficult to apply; leads to
irrational results; and unfair outcomes
b. Changes to landlord-tenant doctrines
a. Eliminates common law rule that lessor
owes no duty
b. Modern rule
i. Landlords are liable for injuries
caused by their failure to exercise
reasonable care to discover or
remedy dangerous conditions.
ii. Landlord should not be held liable
unless he knew or reasonably
should have known of the defect
and had a reasonable opportunity
to repair it.
iii. Tenant duty is keep occupied
premises clean and safe as the
condition of the premises permits
h. Special Duty Rules
1. Special rules control the application of the general principle
that one has a duty to use reasonable care to protect
foreseeable victims from foreseeable harms.
2. No-duty or limited-duty rules limit the application of the
foreseeability test
3. Duty to rescue
a. No general requirement that one person rescue
another from harm, despite the foreseeability of
harm, even if the rescue could be accomplished
b. Existence of a relationship between the victim and
one in a position to render aid may create a duty to
render assistance
a. Employer generally has no duty to provide
medical service to treat an ill or injured
employee, even if the illness or injury was
the result of the employers negligence.
i. If employee while engaged in work
sustains an injury rendering him
helpless to provide for his own care,
the employer must secure medical
care for the employee; Duty to
render care in good faith
c. Exceptions to general rules:
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a. Restatement 2d 314(A)
b. A common carrier is under a duty to its
passengers to take reasonable action
i. to protect against unreasonable risk
of physical harm; and
ii. To give them first aid after it knows
or has reason to know that they are
ill or injured, and to care for them
until they can be cared for by
c. An innkeeper is under a similar duty to its
d. A possessor of land who holds it open to
public is under a similar duty to members of
the public who enter in response to his
e. Restatement 2d 324
f. One who, being under no duty to do so,
takes charge of another who is helpless, is
subject to liability to the other for any
bodily harm caused to him by
i. The failure of the actor to exercise
reasonable care to secure the
safety of the other while within the
actors charge
ii. The actors discontinuing his aid or
protection, if by doing so he leaves
the other in a worse position than
when the actor took charge of him.
4. Good Samaritan statutes
a. Designed to encourage individuals to offer
assistance to others in emergencies; rescued person
cannot sue good Samaritan
a. Strike a balance between protecting Ds and
assuring injured people that those who aid
them will act with some care
5. Obligation to rescuers
a. Rescue doctrine
a. Allows an injured rescuer to sue the party
which caused the danger requiring the
rescue in the first place.
i. Danger invites rescue
b. To achieve rescuer status, one must
i. D was negligent to the person
ii. Peril or appearance of peril was
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iii. A reasonably prudent person would
have concluded such peril or
appearance of peril existed
iv. The rescuer acted with reasonable
care in effectuating the rescue.
c. Case:
i. Rescue guy gets hit by car while
placing flairs; sues car maker for
creating danger by making neg.
drive train which caused accident in
first place
b. Firefighters rule
a. Firefighters and police officers who are
injured may not recover based on the
negligent conduct that required their
b. Contractor for repairs exception
(analagalized from firefighters rule)
i. O is under no duty to protect the
contractor against risks arising from
the condition the contractor is hired
to repair, and thus is not liable even
if the condition was the product of
the owners negligence.
6. Protecting 3
parties from criminal attacks or disease
a. Affirmative acts by health care professionals are
required when they have an opportunity to protect
strangers from danger
a. A mental health care professional, under
certain limited circumstances, owe a duty to
warn a 3
party of threats of harm against
that 3
b. If D stands in some special relationship with
either the person whose conduct needs to
be controlled or in a relationship with the
intended victim of the conduct, the
intended victim has a right to protection
b. A relationship between a mental health care
professional and his patient constitutes a special
relationship which imposes upon the professional
an affirmative duty to protect a third party against
a. When a therapist determines or should
determine that his patient presents a
serious danger of violence to another, he
incurs an obligation to use reasonable care
to protect the intended victim against such
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i. Specific and immediate threat of
serious bodily injury that has been
communicated to the professional
ii. Threat is made against a specifically
identified or readily identifiable
iii. Duty is discharged by Dr. making
reasonable efforts to communicate
threat to victim and to a law
enforcement agency
b. Case: lady killed by crazy boyfriend
i. Telephone call from Dr. saying do
not go to his home; found to be
sufficient for warning.
c. Physicians may be liable to persons infected by a
patient if the physician negligently fails to diagnose
a contagious disease, or having diagnosed the
illness fails to warn family members or others who
are foreseeably at risk of exposure to the disease.
7. Duty limited by type of harm
a. NIED- negligent infliction of emotional distress
a. The right to recover for the physical
consequences of fright in the absence of an
impact and contemporaneous physical
b. Impact rule (traditional rule)
i. Physical harm
ii. Emotional distressed suffered
iii. Negligence
iv. Must have fright at the same time
as physical injury
c. Zone of danger
i. Negligence
ii. Emotional stress evidenced by
physical consequences
iii. Immediate area of physical danger
(where P would expect to suffer
physical harm)
d. P must show some type of physical injury
resulted from the emotional trauma and
that he was within the zone of danger or
actually put in fear for his life.
i. Foreseeability of the risk is a chief
factor in determining if duty existed
e. Bystander claims
i. Marital or intimate family
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ii. Sensory and simultaneous
iii. Foreseeable harm must result from
death or serious injury of victim
iv. Close proximity to the accident
v. No requirement of physical reaction
or effects from distress
b. Mere economic harm
a. Physical injury to P or property required to
recover for economic loss.
b. Economic loss rule- Cannot recover when
injury is entirely economic
c. Exception
i. Special relationship- Duty of care
existed because P is particularly
foreseeable and the injury was
proximately caused by Ds
ii. Public right- Ps business is based
on exercise of public right and D has
created a private nuisance
d. D who negligently injures a P or his property
may be liable for all proximately caused
harm including economic loss
c. Wrongful pregnancy; wrongful birth; wrongful life
a. Cannot recover for wrongful pregnancy
i. Birth of a normal healthy child is
not a legal injury.
ii. Minority says birth of unwanted
child after negligent sterilization is a
basis for damages, including costs
of child-rearing
b. Wrongful birth
i. The birth of a severely deformed
baby is necessarily an unpleasant
and aversive event and the cause of
extreme financial burden, nut usual
with that of a healthy child
ii. Costs to raise child are recoverable
and not offset by costs of raising
healthy child; this is because it
would either be no child or
acceptance of the handicapped
child, but never a healthy child
c. Wrongful life
i. Child who is severely deformed or
handicapped cannot sue on the
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basis that he should have never
been born
ii. Breach (Did D violate standard of care)
1. Violation of a statute (special evidentiary effect; may support finding of
negligence); violation of statute must relate to harm caused
a. Strict liability
1. Expressly stated in statute; P will be liable per se
2. Cannot be excused; no option to show there was no
b. negligence per se
1. simple violation of statute is proof of negligence (prima
facie) or is absolutely (negligence per se) depending on
jurisdiction (speed limit)
a. jury can be instructed that violating party is guilty of
b. P must be in class of persons statute is designed to
protect or must suffer type of harm statute designed to
2. When statute does not articulate duty of care, the violation
is a failure to comply with admin. requirements, not breach
of duty.
3. Can be excused for lack of notice or no reason to know
c. Landlord must have notice of condition causing
violation to apply liability (condo deck collapse- 3

purchaser did not know of defect)
c. Evidence of negligence
1. Least specific duty description in statute
2. Each element of negligence is required to prevail
2. Industry custom
a. customary way of doing things for the industry as a whole
b. some precautions are so imperative that even their universal
disregard will not excuse their omission (TJ Hooper- tug boat)
c. national standards of professional conduct can be consideration in
conjunction with expert testimony as illustrative evidence, but are
not substantive law (school suicide)
d. failure to follow ones own precautionary steps is not failure to
exercise ordinary care (Wal-Mart case- creating higher standard of
care can have many reasons and cannot bind creator when
considering negligence)
3. Res ipsa loquitur (rule of evidence)
a. Permits inference of negligence from circumstantial evidence; jury
can conclude negligence w/o direct evidence
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b. minority view
1. creates a rebuttal presumption and shifts formal burden of
proof to D to show there was no negligence
c. majority
1. when satisfied, will protect plaintiff against directed verdict
and ensure case is sent to jury.
d. Elements- preponderance of evidence for each element (51%)
1. Type of injury usually associated w/negligence
2. D had exclusive control over what caused injury
3. P made no causal contribution to the harm
4. Ds access to information about even was superior to Ps.
e. Cases:
1. It is duty of owner to take care that injury does not occur
(Bryne v. Boadle-wheel barrel)
2. An accident that normally does not happen w/o negligence.
Exclusive control can be shown as long as D was last person
in control of the instrumentality under the circumstances
3. Expression of very detailed cause and breach of duty will
bar use of doctrine. Cannot know how harm was caused,
only that D caused the harm (elevator case)
4. Traditional Strict Liability
5. Products Liability
iii. Cause
1. Legal Cause: Cause-in-fact
a. Connects a defendants conduct to a plaintiffs harm
b. It is Ps responsibility to show there was a causal connection
between conduct and harm suffered.
2. Basic cause-in-fact: the but-for test (part 1 of cause analysis)
a. P would have been free from harm but for Ds negligent conduct
i. Requires pinpointing how injury occurred and then
comparing to a scenario free of Ds negligence.
ii. HYPO: car is speeding 5 minutes before it hits a pedestrian
in the cross-walk. Speeding did not cause injury; being hit in
cross-walk did. Ds negligent speeding did not cause injury.
b. Cay v. State of LA
i. Preponderance of evidence (51%) that Ds negligence
increased risk that accident would occur
c. Lyons v. Midnight Sun
i. The elements of negligence are separate and distinct. Each
must be proven.
ii. No causation is equal to no liability, even with the most
egregious negligence
d. But-for vs. Proximate:
i. Palsgraff- firecrackers and railroad
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1. The but-for cause of injury was fireworks
2. The proximate cause of injury was scales falling on
her head
3. Alternatives to the but-for test
a. Multiple sufficient causes
i. Multiple actors causing harm, may make it difficult for P to
identify 1 person responsible for the harm.
ii. Court may relieve P of obligation to prove who caused
iii. Possible that conduct by each D caused Ps harm; Conduct
by any one is sufficient
iv. Prevents D from escaping liability by blaming D2 or D3.
v. Kingston v. Chicago (2 fires; either fire could have done)
1. Any one of two or more wrongdoers whose
concurring acts of negligence result in injury are
each individually responsible for the entire damage.
a. This is because it is impossible to apportion
the damage or distinct injury to either
vi. Brisboy v. Fireboard (asbestos death)
1. An actor is not liable for negligent conduct, unless
that conduct was a legal or proximate of the harm
to P.
a. Multiple causes does not relieve any Ds
whose negligence was one of the causes.
b. Ds conduct will not be legal or proximate
cause unless it was a substantial factor in
bringing about the harm.
vii. Exception:
1. Act of GOD on D2
2. Ds action was not proximate cause of harm
b. Concert of action
i. Finding under but-for would be impossible because P
would still have been injured by D1 but for D2 and by D2
but for D1.
ii. Conduct of all Ds combined to produce harm
1. Conduct by two or more persons is sufficient
iii. Shin v. Allen
1. Restatement 876(b)- persons acting in concert: D
is subject to liability for injury of 3
party if
a. He does act with or while following a
common design;
b. Knows of others breach and gives
substantial assistance or encouragement to
the other;
i. nature of act;
ii. kind and amount of assistance;
iii. relation of D to actor;
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iv. performance or absence of D at the
occurrence of the wrongful act;
v. Ds state of mind.
c. Gives substantial assistance to other and
own conduct separately is a breach to the
c. Alternative liability
a. Starts out with regular burden of proof. P must show
elements of alternative liability theory so that it can be
applied and shift burden.
i. It will be up to Ds to show who actually harmed P
b. Summers v. Tice (Shot while quail hunting; Only one D
could have caused harm)
i. If two forces are actively operating, one because of
the actors negligence, the other not because of any
misconduct on his part, and each of itself sufficient
to bring about harm to another, the actors
negligence may be held by the jury to be a
substantial factor in bringing about the harm.
c. Burke v. Schafner (P hit by pickup; sudden acceleration and
pinned)- P tired to expand doctrine to include situations
involving single negligent act, committed by one
unidentifiable person, regardless of that persons status as a
party or non-party.
i. 2 or more Ds committed tortuous acts
ii. P was injured as a proximate result of the
wrongdoing of one of the Ds
1. Only after above are proven will burden
shift to the Ds to prove they were not the
cause of Ps injuries
2. Doctrine cannot be expanded; all
tortfeasors must be before the court and
the duty breached should produce risk of
similar harm.
d. Market share liability (modified alternative liability)
a. P harmed by a product produced by a number of
manufacturers; P has no way of identifying the sources of
the product that caused the injury and thus cannot be sure
that he has sued actor that has caused injury.
b. Needed because D has no better access to info than P; all
possible tortfeasors may not be known or still in business;
to keep fair spread of liability to wrongdoers
c. Hymowitz v. Eli Lily (DES; lady with birth defects after mom
takes DES)
i. Sufficient share of wrongdoers in court
ii. Liability apportioned according to national market
1. Can also be done according to local or
segment of market
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iii. Allowable because of fungibility- all products have
same risks doesnt matter who made; they all harm
somebody with product.
d. Black v. Abex Corp. (mechanic died from asbestos)
i. Market share liability inappropriate because types of
asbestos too dissimilar to lump companies together.
Not all manufactures presented same risk to P; products
had different percentages of asbestos.
ii. Market share liability requires
1. Injury or illness occasioned by a fungible
2. Injury or illness due to design hazard
3. Each D sold same type of product in a manner
that made it unreasonably dangerous
4. Joinder of enough Ds to represent a substantial
share of the market
e. Liability for lost chance of recovery or for increased risk of eventual
a. Recovery when a Dr. is negligent, but P would have suffered
some ultimate harm, even with good medical treatment.
b. Suit is for harm that makes P worse than the sick she already
c. Lord v. Lovett
i. Traditional approach- minority
1. P must prove that as a result of Ds negligence,
P was deprived of at least a 51% chance of a
more favorable outcome than received
ii. Variation on traditional
1. P must show Ds negligence more likely than
not increased harm to P or destroyed a
substantial possibility of achieving a more
favorable outcome.
iii. Lost opportunity for a better outcome
1. P must show she would have had a chance for
better recovery.
2. P can only recover for the lost opportunity
d. Alberts v. Schultz
i. Courts apportion damages by valuing the chance of a
better result as a percentage of the value of the entire
life or limb
ii. Damages should be awarded on a proportional basis as
determined by the percentage value of the patients
chance for a better outcome prior to the negligent act.
e. Petrillo v. Kalman
i. Increased risk of future injury
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1. Recovery possible because P has to sue now
when knows of problem. Statute of limitations
precludes suing when injury actually becomes
2. P must establish that a breach of duty was a
substantial factor in causing the present injury
which has resulted in an increased risk of future
a. Compensation is available to extent
future harm is likely to occur.
ii. to whom another has tortiously caused harm is entitled
to compensatory damages for the harm if, but only if,
he establishes by proof the extent of the harm and the
amount of money representing adequate compensation
with as much certainty as the nature of the tort and the
circumstances permit.
4. Limits on Liability (after deciding on which legal-cause is applicable)
a. Limits liability when defendants conduct may be the but-for
cause of plaintiffs injury
i. Ds negligent acts can be a cause in fact of infinite
harmful consequences.
ii. D will not be liable if court rules that D did not owe a
duty to P or that D was not proximate cause of Ps harm
iii. Palsgraf v. LIRR (fireworks and scales)
1. Cardozo
1. P must show a violation of her own
right, not just a wrong to someone else,
nor conduct that is wrongful because it
is unsocial
2. The risk foreseen defines the duty
3. Wrong is defined as the natural of
probable, when unintentional
a. P is only foreseeable if they are
in the reasonable zone of
2. Andrews
1. Where there is an unreasonable act and
some right that may be affected there is
negligence whether damage does or
does not result
2. Harm to someone being the natural
result of the act, all those injured may
in fact complain.
a. All plaintiffs are foreseeable; If
D is negligent to P, and 2
injured is a foreseeable P
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3. Damages must be connected with
negligence so that the negligence is the
proximate cause of the damages
b. Duty
i. Policy limitation: if no duty exists, there is no liability to
ii. Harm is reasonably foreseen
1. Persons are required to use ordinary care for
the protection of those to whom harm can be
reasonably foreseen.
1. P must be a foreseeable victim
2. P must have foreseeable injuries
2. Negligence must be a matter of some relation
between the parties, some duty, which could be
founded only on the foreseeability of some
harm to the plaintiff in fact injured
iii. Foreseeable victim (aid and protect)
1. There is no duty to aid or protect another
2. A duty may be found if there is a special
relationship between P and D.
1. Rational behind this exception is based
on element of control
3. To determine special relationship
1. Balance societal interest involved
2. Severity of risks
3. Burden upon D
4. Likelihood of occurrence
5. Relationship between parties
4. Usually relationship is between the following
1. Common carriers and their passengers
2. Inn keepers and guests
3. Employers and employees
4. Landlords and tenants
5. Businesses and their customers
iv. Foreseeable harm
1. Duty of a social host
1. Factors to consider in upholding the
duty a social host owes to a 3
a. Extent of risks involved
b. Foreseeability and Likelihood of
injury weighed against the
social utility of the actors
c. Magnitude of the burden of
guarding against the injury
d. Consequences of placing
burden on D.
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2. Drinker should be primary person
responsible for his own behavior and is
best able to avoid foreseeable risks of
drinking behavior.
v. Foreseeable harm
1. Foreseeability is the most important variable in
the duty calculus and without it there can be
not duty to prevent suicide.
2. Counselor owed duty when considering
following factors
1. Closeness of connection between
conduct and injury
2. Harm that may result from failure to
intervene appropriately
3. Risk of death to child balanced against
burden sought to be imposed
4. Community consequences of liability
and insurance
vi. But-for vs. Proximate: Palsgraff- firecrackers and
1. The but-for cause of injury was fireworks
2. The proximate cause of injury was scales falling
on her head
c. Proximate Cause (part 2 of causation analysis; where are we
gonna stop the liability)
i. Dont look at proximate cause until legal cause
1. Necessary only after it is shown that D had a
duty to P and that D is but-for cause of Ps
ii. Policy limitation: Ds conduct too remote from Ps injury
to hold D liable
iii. A natural and continuous sequence, unbroken by any
efficient intervening cause produces the injury and
without which the result would not have occurred.
v. Directness (minority)
1. Polemis
a. To determine negligence, determine if
any reasonable person would foresee
that the act caused damage.
b. Once the act is negligent, its exact
operation not being foreseen is
c. Wagon mound rule (majority view)- if it
was a type of harm that was
foreseeable, then the defendants will
be liable for all the damage even if it is
in greater extent than that was
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foreseeable. Wagon mound rule rejects
i. rule limits liability to damage
that is unforeseeable but is the
same type (small fire to big
fire= liable)
2. Boiling water and no heat
a. Injuries must be classified as normally
expected from Ds negligence
vi. Foreseeability (majority)
1. Tieder v. Little (car hit lady / brick wall fell on
a. Ds negligence must be a cause-in-fact
of Ps injuries
b. To constitute proximate cause
i. there must be such a natural,
direct, and continuous
sequence between the
negligent act or omission and
Ps injury that it can be
reasonably said that but for the
act, the injury would not have
ii. Also accident must have been a
reasonably foreseeable
consequence of Ds negligence
c. Collapse of wall was totally foreseeable
given its negligent design and
construction, even though exact
sequence of events leading to accident
was bizarre.
2. Specific type of injury to P, must be foreseeable
3. Eggshell P.- must accept victim as victim is
a. Applies to extent of harm
b. D is responsible for all harms caused as
a result of his negligence
4. Kinsman (boat breaks free, hit ship, bridge, and
causes flood)
a. If damages are the consequence of the
same risk which made act negligent and
are of the same general sort that was
expected, unforeseeability of the exact
events or extent of loss will not limit
vii. Substantial factor test
1. American Truck (bldg on fire, 2
destroyed, elevator falls)
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a. Foreseeability will typically not be part
of the substantial factor test.
b. Actors conduct being a substantial
factor involves 3 considerations:
i. number of other factors,
ii. lapse of time,
iii. negligent conduct created
force(s) which were active and
operational up to the time of
harm or created a harmless
situation that need be acted
upon by others to cause harm
c. Negligence for which P was responsible
was not in active operation at the time
when damages were caused to
Americans property
2. Chelcher v. Spider (P. on scaffolding, knew it
was slanted and no safety man on duty)
a. P must prove
i. Whether negligence was a
cause in fact; and
ii. Whether negligence was the
proximate cause of injuries
b. Ds conduct is a proximate cause if Ds
conduct is a substantial factor in
bringing about the harm.
i. Sub factor hinges on
ii. Court considers the number of
other factors which contribute
in producing the harm and the
extent of the effect which they
have in producing it.
c. P failed to show Ds conduct was
proximate cause of his harm.
3. Taylor v. Jackson (triple accident w/ tractor
a. Where negligent conduct is a
substantial factor, mere lapse of time,
no matter how long or short is not
enough to prevent the conduct from
being the proximate cause.
b. If during lapse of time more acts
contribute significantly to the harm,
then the original act is less likely to be a
substantial factor.
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viii. Combining approaches
1. Sumpter v. Moulton (heart attack while
cleaning ditches)
a. Whether negligent conduct is a
substantial factor
i. Existence and extent of other
ii. Continuation of force created
by D
iii. Lapse of time involved
b. Foreseeability is a component of
proximate cause and helps determine
the extent to which the law should
impose liability.
i. Specific harm or consequence
need not be foreseeable, just
some injury.
ii. Not necessary to foresee extent
or manner of harm
ix. Intervening and superseding force
1. 3
partys conduct that comes after Ds acts in
the chain of events leading to Ps injury, that
conduct is an intervening act
2. If act of the third party is not foreseeable then it
is superseding and will protect the defendant
from liability.
a. Cuts off D1s liability if act 2 is
superseding because it was not
foreseeable or act 2 was act of GOD.
3. Policy limitation: conduct of another actor
which insulates defendant from responsibility
4. Price v. Blaine (George Bush Mask)
a. Criminal or tortious 3
party conduct
severs the chain of proximate causation
between P and D
i. the chain however, remains
unbroken when the 3
intervening act is reasonably
b. D should have foreseen some sort of
violent reaction to sight of mask.
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5. McClenahan v. Cooley (keys left in ignition of
parked car)
a. D not liable for theft and subsequent
negligence by a 3
party (majority)
i. No duty to public; 3
negligence not foreseeable; Ds
actions not proximate cause of
injury as theft was an
independent intervening cause
b. Intervening criminal act automatically
breaks the chain of causation as a
matter of law (minority)
i. Theft of car foreseeable; an
increased risk to the public
c. An intervening act will not relieve D of
liability unless it appears the negligent
intervening act could not have been
reasonably foreseen
d. An intervening act will not be
superseding if
i. It is a normal response to the
negligent act that is foreseeable
and a substantial factor in
bringing about the harm
ii. It could reasonably have been
iii. The intervening conduct could
have been anticipated and
taking the risk of it was
6. Weems v. Hy Vee Food
a. Medical treatment is a normal
consequence of the tortfeasors
i. If D is liable for Ps injury, he is
also subject to liability for any
additional bodily harm resulting
from the normal efforts of 3

persons in rendering aid which
the Ps injury reasonably
requires, irrespective of if Dr.s
acts are proper or negligent.
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ii. Exception: D will be liable for
adverse results of medical
treatment unless the treatment
is extraordinary or the harm is
outside the risks incident to the
medical treatment
b. Immaterial if precise harm to P is rare
or unforeseeable
7. Corbett v. Weisband (knee amputated cause of
Drs. negligence)
a. Not superseding cause of harm which
Ds negligence is a substantial factor in
bringing about if
i. D should have realized that a 3

person might so act
ii. A reasonable man knowing
situation when 3
acted, would not regard the 3

persons act as highly
iii. Intervening act is a normal
consequence of a situation
created by actors conduct and
manner in which it was done is
not extraordinary
iv. Damages
1. Compensatory
a. Equal to value of actual harm caused by D.
b. General (non-economic)
1. For harm difficult to quantify in specific terms
2. Typically result from any injury
3. May be subjective
a. pain and suffering-
a. can be an objective injury that happens to
all or subjective injury that is not usual
based on the underlying injury
b. future pain and suffering
i. objective- plainly apparent; P not
required to prove a plainly apparent
fact. Jury may infer pain and
suffering in future
ii. subjective- laymen cannot with
reasonable certainty know whether
or not there will be future pain and
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suffering. Expert testimony must
explain expected future pain based
on exam, knowledge of case, or
hypo based on facts
c. per diem
i. affixes a specific dollar amount per
unit of time
ii. not evidence, suggested method of
calculating damages
iii. For- guidance for jury; gives a
reasonable and practical
consideration; unlikely it will
mislead jury- they will know it is
only suggestion, particularly when
accompanied by instructions; only
suggestion of 1 method to be
employed during calculation
iv. Against- lacks evidentiary basis;
equivalent to counsel giving
testimony; juries mislead to give
larger awards; D is disadvantaged
by being required to rebut
d. golden rule
i. jurors are asked to place
themselves in Ps shoes and to
award such damages as they would
charge to undergo equivalent P & S
b. Hedonic Damages
a. Loss of enjoyment of lifes pleasures
b. Sometimes included in P & S; sometimes
treated sep. as losses P never gets to
experience due to injury
c. Three economic models as a basis
i. Consumer purchases of safety
device- price differential between a
safer product and one less safe
ii. Wage differential for high risk and
low risk jobs-
iii. Cost-benefit analysis conducted by
govt agencies in deciding whether
to adopt a regulation
d. Day-in-the-life video
i. Shows Ps pain and suffering and
loss of enjoyment of life
c. Loss of consortium
a. Spousal or parent child
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i. Tangible services provided by
ii. intangible benefits each family
iii. attention
iv. guidance
v. care, affection, love
vi. protection, cooperation
vii. training
viii. companionship
ix. sexual relations
c. Special (economic)
1. Objectively verifiable monetary loss caused by Ds conduct
2. Must be supported by evidence showing type and amount;
can be tailored to P
3. Discounting
a. Mathematical process by which law adjusts damage
awards for future losses
a. Damages are often paid as lump sum and
are worth now than had P received them
across a period of time.
b. Adjusts for potential inaccuracy in damages
c. Adjustment can be made for taxes, interest to be
earned on the money if it is to be invested, health
benefits, fringe benefits, age left in work force,
current income from employment
4. Lost earning capacity
a. Damages are for future earning capacity, a P not
currently in work force may collect
5. Past and future medical expenses
a. D is required to pay medical expenses, even over
treatment or unnecessary treatment, unless it was
acquired in bad faith.
b. Future
a. P must prove that these expenses will be
necessary and inevitable
b. Must be established with some degree of
c. Must be supported with medical testimony
and estimation of probable costs.
6. Lost wages
a. Actual loss
a. P must prove the length of time missed
from work due to the injury
b. Must prove past lost earnings
i. Requires evidence that reasonably
establishes the claim and is subject
to mathematical calculations
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c. Future loss of earnings
i. P must present medical evidence
that indicates with reasonable
certainty that a residual disability
causally related to accident exists
ii. Are inherently speculative, must be
proven with reasonable degree of
iii. Factors include- Ps physical
condition before and after injury;
past work record; work consistency;
$ P would have probably earned
absent injury and prob. P would
have continued work during
balance of working life.
d. Impact of future inflation and productivity
on lost future earning capacity
i. Traditional- ignores the effects of
future productivity and future
inflation as being too speculative
ii. Middle ground- permits jury to
consider effects of productivity and
inflation on lost future earning
capacity, but prohibits expert
testimony on either issue
iii. Evidentiary- allows jury to consider
productivity and inflation in
awarding damages. Offset present
value method- subtracts estimated
inflation rate from discount rate to
calculate inflation adjusted (takes
all things possible into account);
total offset method- assumes
effect of future inflation will
completely offset the interest rate,
eliminating need to discount award
(takes into account predictable auto
increases in salary)
d. Ps Death
1. At common law, the death of a human being could not be
complained of as an injury.
2. wrongful death statutes
a. allow people who have suffered losses as a result of
anothers tortiously caused death to recover
b. pure wrongful death
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a. create a new cause of action in favor of the
survivors of the victim for their loss
occasioned by the death
b. compensation for the loss of economic
benefit which they might reasonably have
expected to receive from the decedent in
the form of support, services, or
contributions during the remainder of
decedents lifetime if he had not been
3. Survival statutes
a. Allows Ps estate to sue on his or her behalf, as if P
had survived, to recover damages that would have
been recovered by victim if he had still been alive
b. Recovery is same decedent would have been
entitled to at death; simply shifted from victim to
4. Pecuniary loss
a. Economic contributions the deceased would have
made to survivors had death not occurred; and
Economic value of the services deceased would
have rendered to the survivors but for the death
b. Pecuniary value: The expectation of life, age,
condition of health and strength, capacity for labor
and earning money through skill, any business or
c. Also takes into account decedents probable living
expenses had he not died
2. Punitive
a. Serve to punish or provide extra deterrence to D
b. Recoverable if D acted with bad motive, desire to harm, or ill will
c. P must prove elements of an intentional tort or recklessness of the
sort that includes a conscious disregard of the high risk of serious
harms to others
d. Care is taken to ensure the award is not excessive given facts of the
case and given damages previously awarded to other Ps in similar
cases with similar conduct from same D
1. Damages awarded when:
a. Acts complained of committed with malice,
willfulness, or wanton and reckless disregard of the
rights of others.
b. When there is averment (positive statement of
facts) and proof showing that the act charged was
wrongful and attended with an insult or other
circumstances of aggravation
c. Particularized circumstances of aggravation or insult
must appear in cases of assault and battery
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d. Can only be awarded when a cause of action
otherwise exists in which at least nominal damages
are recoverable
2. Reviewing
a. Degree of reprehensibility of Ds misconduct
b. Disparity between actual or potential harm suffered
by P and damages awarded
c. Difference between damages awarded by jury and
civil penalties authorized or imposed in comparable
v. Apportionment of Damages
1. Multiple cause cases where P is allowed to recover
2. Liable Defendants
a. Joint and Several
1. Developed under contributory negligence
2. Jurisdictions are split on informing jury of doctrine
3. P may collect entire amount of damages from any D whose
negligence was a proximate cause of the harm
a. Dumb chick tried to race train, got hit and all in car
sued railroad cause they was her family members
and she had no money
4. Contribution (allowed by all)
a. Allows D1 to sue other Ds in a separate action if D1
has paid more than his share
b. Some form allowed by all jurisdictions
a. Pro tanto
i. Divides the damage award by the
number of Ds who were liable
under the judgment
b. Comparative contribution
i. Allocates damage award according
to the degree of fault attributable
to each tortfeasor
b. Several
1. P sues each D, and then damages apportioned to each D.
2. Applied to multiple Ds who have caused a single indivisible
a. Jury shall multiply total amount of damages
recoverable by P by the % of each Ds fault and that
will equal maximum recoverable against D.
b. Consider fault of all persons who contributed to
alleged injury
3. Applied to divisible injuries
a. But for test of causation could be used to assign
responsibility for each injury to a particular D.
b. Each D would pay for the harm caused
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4. Where P is incapable of showing which D caused which
harm, because they are concurrent tortfeasors, the burden
shifts to each D to absolve himself
3. Absent or Immune Actors
a. Some jurisdictions allow for conduct of absent D to be evaluated
1. Goal is to ensure no D is liable to any person seeking
recovery for any amount in excess of the proportion of fault
attributable to that D.
b. Spreads fault against all Ds and P can recover from each D the
amount of damages that D is responsible for.
c. Some jurisdictions allow D who has acted intentionally and those
who are not negligent to be included in the apportionment of fault.
4. Intentional Conduct
a. Can negligent conduct and intentional conduct be compared?
b. Contributory
1. Ps contributory negligence was ignored if D had committed
an intentional tort
c. Comparative negligence
1. Some ignore Ps negligence if D was intentional tortfeasor;
2. Some compare negligent conduct with intentional tort
d. Slack v. Farmers Ins. Co
1. In death or property claim, no D shall be liable for amount
greater than his attributable fault.
2. Reason for the pro tanto (pro rata) division of liability is no
different if intentional tortfeasor contributes to the injury
(inequity of over payment).
3. Dissent: (followed in some jurisdictions)
a. Conduct cannot be compared when determining
comparative fault when the intentional conduct is
the foreseeable risk created by the negligent
a. Negligent and intentional acts are different
in degree, in kind, and in societys view of
relative culpability of such act.
i. Policy: Holding tortfeasor liable for
only his % of fault is not abrogated
by non-apportionment when the
nature of the tortfeasors breach is
that he created the risk of the 2

tortfeasors intentional act.
5. Risk of Insolvency
a. If one D is insolvent, P will be unable to collect that share
b. Usually a problem in several liability, as P cannot recover all
judgment from any D, and therefore one of the Ds may not be able
to pay cause P a problem in collecting 100% of judgment.
c. Realocation rules implemented by some states to prevent risk from
resting on P
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1. Realocation spread the insolvent Ds share among the other
Ds or among P and any solvent Ds.
vi. Vicarious liability
1. Special variety of joint liability; actor is liable for someone elses tortious
a. Employer paying for employee
b. Car owner for driver of his car
2. Respondeat Superior
a. An employer may be held vicariously responsible for the tortious
acts of an employee committed incidental to or during the scope of
b. To obtain judgment P must show
1. employee acted negligently
2. employer participates in the employer-employee
c. going and coming rule
1. employer ordinarily is not liable for employees negligence
while commuting
a. an employee is outside the scope of his
employment while engaged in his ordinary
commute to and from his place of work.
a. Based on theory that during this time,
employer is not rendering services directly
to his employer
d. The employer is only liable when the employee is acting in the
course of his employment. If employee was going on a frolic of his
own, without being at all on his employers business, employer is
not liable.
1. Relevant circumstances should be considered and weighed
a. Intent of employee
b. Time and place of employees conduct
c. Work employee hired to do
d. Incidental acts employer should reasonably have
expected employee to do
e. Freedom allowed to employee in performing duties
f. Time consumed in the personal activity
2. Where an employee may be deemed to be pursuing a
business errand and a personal objective simultaneously, he
will still be acting within the scope of his employment.
3. An employer who violates an employers rules might still be
treated as having acted within the scope of employment.
e. An employee is
1. A person employed to perform services in the affairs of
another and who with respect to the physical condition in
the performance of services is subject to the others control
or right to control
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f. Contract language does not determine nature of parties, rather the
objective nature of the relationship is determined by an analysis of
the totality of the facts and circumstances of each case.
1. To determine existence of employer-employee relationship
a. Extent of control exercised by the master over
details of the work and the degree of supervision
b. The distinct nature of the workers business
c. Specialization or skilled occupation
d. Materials and place of work
e. Duration of employment
f. Method of payment
g. Relationship of work done to the regular business of
the employer
h. Belief of the parties
2. Independent contractors are not employees; employer will
not be held liable for his acts
a. Exception:
a. When employer hires independent
contractor to perform inherently dangerous
b. Applies to work that is dangerous, even
when done with reasonable care, such as
demolition and excavation
c. Applies to danger that is naturally
understood to be present in the endeavor
g. P can enforce judgment against employer and is entitled to
judgment against employee
1. Supplies deep pocket to injured P
2. Usually, there can be no right of contribution between
employer and employee
a. Some state allow for indemnification, where
employer sues employee for damages that he paid
to P.
b. Other states allow for indemnification if employees
conduct was characterized as reckless or intentional
h. Imposed on defendant employer that did not act tortiously
i. Justifications
1. Deep pocket theory
a. Ensures P can sue someone who is likely to have
assets or insurance
2. Risk spreading theory
a. Employer is better situated than either the
employee or P to cover the loss by reimbursing
itself through higher prices to its customer or
accumulating reserves in advance of the accident
3. Enterprise risk theory
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a. Though employer not at fault for way in which it
engaged in a particular activity, the activity ought to
pay its own way by paying for the risks it creates.
b. If tortious employee conduct is one of the
foreseeable risks, the enterprise should pay for
those risks that are characteristic of its activity
4. Avoidance theory
a. If employer is required to pay for the tortious acts
of its employees, it will have an incentive to
discover ways to minimize those acts and thereby
minimize the harm.
3. negligent supervision
a. P must show: employer negligently supervised employee
b. Employers supervision was worse than the supervision a
reasonable employer would have provided
4. Vehicle owners
a. To increase likelihood of Ps recovery, state statutes make vehicle
owners vicariously liable for the tortious conduct of all users of their
1. Applicable even when tortfeasor is a passenger
b. Imposed when four perquisites are met
1. Death or injury to person or property
2. Harm is result of operators negligence
3. Negligence arose from the use and operation of the vehicle
a. Test of use and operation
a. The accident arises out of the inherent
nature of the automobile
b. The accident arises within the natural
territorial limits of an automobile and the
actual use, must not have been terminated
c. Automobile must have itself produced or be
a proximate cause of the injury; not merely
4. The operator was using the vehicle with the owners
a. Express or implied permission will suffice
c. Levitt v. Peluso
1. P was blinded in 1 eye by egg thrown from moving car
owned by D and operated by X in which D2 was a
2. If injury does not arise out of use and operation of vehicle,
owner will not be liable.
a. Throwing an egg does not arise out of the inherent
nature of the automobile; and the automobile did
not produce the injury in question
vii. Adjustments to Damages: collateral sources and ceilings
1. Collateral source rule
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a. Allows an injured party to recover value of medical treatment from
a culpable party, irrespective of payment of actual medical expenses
by the injured partys insurance carrier
b. Preserves an injured partys right to seek tort recovery from a
tortfeasor without jeopardizing his or her right to receive insurance
payments for medical care.
2. Modifications to collateral source rule
a. Reduce tort judgment by amount of collateral source payments but
specifies that such reduction will not occur if a subrogation or
reimbursement right exist.
b. Contractual reimbursement allowed and subrogation denied to the
health insurers in some states
c. Creates a statutory right of subrogation for health insurers, thus
eliminating double recovery to P and benefitting the health
insurance industry.
1. Subrogation substitutes the health insurer in place of the P
insured to whose rights he or she succeeds in relation to the
debt and gives to the substitute all rights, priorities,
remedies, lien, and securities
2. Contractual reimbursement allows the insurer to recover
payments directly from its own insureds recovery of the
loss from a 3
3. Ceilings
a. Statutory limitations enacted to limit the amount of damages
recoverable by a P
1. Enforced by court if jury awards more than statue allows
2. Establishes the outer limits of a remedy
3. Usually applied to medical malpractice cases
a. Policy being there is an increase in malpractice
claims and there is a need to protect doctors from
higher premiums to ensure they will continue with
the much needed and socially helpful practice of

III. Recklessness
A. Burden of proof is on plaintiff
B. 3
restatement torts
i. Person knows of the risk and of facts that make risk obvious
ii. Reducing risk involves burdens so slight relative to magnitude of the risk that failure
to adopt precaution is a demonstration of indifference to risk.
C. 2
restatement torts
i. D had reason to know (information that would infer the fact exists) of facts relating
to the risk presented by the conduct.
IV. Defenses
A. Plaintiffs contributory fault
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1. P has to be 100% free from negligence to recover
2. AL, MD, VA, NC, DC
3. D ahs burden of proof to show P was negligent and that negligence was the
proximate cause of Ps injuries
a. May be shown by either parties evidence
1. P has to be less than 49% or less negligent than D to recover
2. P has to be 50% or less negligent than D to recover
3. Unit rule
a. Negligence of all Ds is compared to Ps negligence
4. Wisconsin rule
a. Negligence of each D is compared to Ps negligence
iii. Reckless conduct
1. Where P seeks damages from reckless D, Ps contributory fault is not
a. Last clear chance doctrine
1. P ma recover full damages upon showing that D had the last
clear chance to avoid the injury to P, but failed to take that
2. In comparative fault, jury can prorate damages between P and D and offset
Ds damages based on Ps negligence
B. Assumption of risk
i. Express (waiver to play interscholastic sports)
1. P agrees ahead of time to give up right to sue
a. Usually in a written release
1. Release must be permitted in connection with the activity
and must merit enforcement
a. Agreement concerns an endeavor generally thought
suitable for public regulation
b. Party requiring release is engaged in performing a
service of great importance to the public, often a
matter of practical necessity
c. Party holds itself out as willing to perform this
service for any member of public who seeks it or
coming within certain established standards
d. Party invoking release possesses decisive advantage
of bargaining strength against the public
e. A standardized adherence release and makes no
provision for obtaining protection against
f. Persons seeking services are placed under control of
furnisher of services
2. Words of release need to express as clearly and precisely as
possible the extent to which party intends to absolved from
b. Limits to liability in release will not be enforced unless the limitation
is fairly and honestly negotiated and understood by both parties
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c. Releases signed under conditions that do not provide P with an
informed and voluntary choice or that contain oppressive terms are
ii. Implied
1. Primary assumption of risk (ice patch)
a. Argument that rebuts Ds duty because risks cannot be eliminated
or would be too costly to eliminate
b. If P can prove D could have reasonably prevented accident through
use of ordinary care; D will be liable
c. Risks are typically obvious and there is no duty to protect
1. Harm is unforeseeable; inherent risks are necessary and
thus cannot be avoided without sacrifice to characteristic of
d. No duty rules apply to risks which are common, frequent, and
expected, and in no way affect the duty to protect patrons from
foreseeably dangerous conditions inherent in the activity
2. Secondary implied (making a bomb)
a. Defense that requires a subjective test to determine if P knew and
appreciated the risk created by Ds wrongful conduct and voluntarily
accepted the risk.
1. Burden of proof is on D
b. Applies to those risk created by D that are not necessary, in fact it
was negligent or reckless for D to create risks
iii. Immunities
1. Governmental
a. P will recover if act is based on the performance of a discretionary
2. Municipality
a. Immune for governmental acts
1. Maintaining a traffic light is governmental act
b. Possible liable for proprietary acts
1. Has nothing to do with the authority given by law
a. Such as a police officer working off duty; he is a
government employee, he was not doing
government work
3. Interfamilial
a. Kids can sue parent for negligent conduct not related to providing
b. Spouses can sue one another
iv. Statutes
1. Limitation
a. Time a P should reasonably have known that he or she had a legal
claim and bars a claim unless filed within a certain time period after
that time
2. Repose
a. Time when D committed the act or omission that is basis of Ps
claim and bars a claim unless it is filed within a certain period after
that time, even if the statute of limitations would not bar the claim