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-- GENERAL -Elements of Negligence: Duty; Standard of Care; Breach of Duty; Cause-in-fact Scope of
Liability (Proximate Cause); Damages.
General Duty to those around you (73): every driver on the public highways owe to all
other users of the highways a duty to drive carefully so as not to subject them to unreasonable
risks of harm
Duty by Special Relationship: Generally, if the (D)s acts did not create the risk of harm that
befell the (P), there is not duty. Thus, there is no duty to act or rescue someone from harm where
the actions have not created the risk, unless there was a special relationship between the parties
such as parent-child. Teacher-student, doctor patient, employer-employee, and common carrierpassenger.
Vicarious Liability: Generally, employers and principals are vicariously liable for negligence of
their employees and agents committed within the scope of the employment or agency.
-- RPP STANDARD -The Reasonable Standard of Care (78): In most negligence cases, the measure of the duty
owed is that of a reasonable prudent person under the same or similar circumstances; an
objective standard.
Breach of the Standard of Care: Breach of duty comprises of two elements: foreseeable risks
of harm and unreasonable conduct in light of those risks. This breach determination is made
through the lens of a reasonable person. The objective standard requires a determination of what
a hypothetical reasonable person would have done under the circumstances and then measures
(D)s conduct against the standard.
Reasonable Person with Different Physical Characteristics Standard (89): In evaluating
a partys conduct, the reasonable person of ordinary prudence is assumed to have the relevant
physical disability of that party.
Standard for the Mentally Disabled: the standard of care for the mentally disabled and the
insane is that of a sane, mentally able person. A mentally ill (or insane) person will be held to the
reasonable person standard of care; their illness will not be any defense to negligence. No
distinction is to be made between mental illness that is not sudden and that which is sudden and
unanticipated. This is an overwhelming majority decision.
Special Child Standard: a childs conduct is compared to that expected of a reasonably careful
child of the same age, intelligence, maturity, training, and experience.

Inherently Dangerous Activity Exception (95): when the activity a child engages in is
inherently dangerous, the child should be held to an adult standard of care.
Adult Activities Exception: Children engaging in an activity which is normally one for
adults (motorized vehicles) will be held to the adult reasonable prudent person standard of
care. There would be hazards to the public if the rule is otherwise.
Age Based presumptions: minority provide that below 7years, the child is incapable of
negligence. Others provide a rebuttable presumption of an incapability of negligence in
ages between 7 and 14.

Superior Skill RPP Standard (99): The actor must utilize not only those qualities and facilities
which as a reasonable person he is required to have, but also those superior qualities and
facilities which he himself has.
-- Breaching the RPP Std -Balancing of Risks and Utility (Hands Risk Calculus): B < P x L; If the burden is less than
probability of the risk times the nature and seriousness of the harm, then the reasonable prudent
person standard has been breached. Primary factors to consider in ascertaining whether a
persons conduct lacks reasonable care are the foreseeable likelihood that it will result in harm,
the foreseeable severity of the harm that may ensue, and the burden that would be borne by the
person and others if the person takes precautions that eliminate or reduce the possibility of

Due Care: Due care is that care which is optimal given that the potential victim is himself
reasonably careful; a careless person cannot by his carelessness raise the standard of care
of those he encounters.

Role of Custom: Customary practices are generally allowed into evidence to guide juries in
determining reasonableness of partys conduct. The plaintiff may introduce the (D)s deviation
from custom as evidence of (D)s unreasonable conduct. Conversely, (D) may be the party
introducing evidence of customary practice in order to show that (D)s compliance with custom
demonstrates reasonableness. Compliance with the local customary standards is not compliance
with the reasonable person standard. A defendants conduct is not to be considered
unreasonable simply because someone else may have used a better or safer practice; what you
must decide is whether, taking all the facts and circumstances into account, defendant acted
with reasonable care.
-- Negligence Per Se Standard -Negligence Per Se (Majority): Traffic laws, including statutes, regulations, and local
ordinances set the standard of a reasonable person and thereby require a finding of negligence
in a tort action if (P) can prove that (D) committed an unexcused violation, unless excused.
Before a (P) is entitled to an instruction defining the violation as to negligence per se, he must
first demonstrate that he is among the protected class and, second, that the injury was caused
by a harm against which the law was designed to protect (the Two Step Relevancy Test).

Two-Step Relevancy Test (135): In determining if the statute is relevant, the courts
consider whether the facts of the case fit within the overall language and purpose of the
statute. Class of persons protected the courts consider whether the plaintiff was a
member of the class of persons the legislature sought to protect. Type of harm prevented
whether the type of harm suffered was a type the legislature sought to prevent.
Licensing statutes are usually not adopted because the lack of a license is not really itself
evidence of lack of due care.
Two Step Relevancy Test for NPS
Class of persons protected
Type of harm prevented

NPS Some Evidence Approach (139): Significant minority; the standard of care remains the
reasonable person standard and the violation of the relevant statute may be considered by the
jury in its breach determination.

NPS Express Presumption (139): a few states follow an express presumption of negligence
approach under which the burden is shifted to the defendant to rebut the impact of the statutory
violation based on the accepted excuse doctrines in the states.

Potential Excuse Doctrines (140): Unless the enactment or regulation is construed not
to permit such excuse, its violation is excused when (a) the violation is reasonable
because the actors incapacity; (b) he neither knows or should know of the occasion for
the compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is
confronted by an emergency not due to his own misconduct; (e) compliance would involve
a greater risk of harm to the actor or to others. (f) A minority formulates an all-purpose
general excuse doctrine based on whether the statute violators conduct was nonetheless
reasonable under all the circumstances.
Some Potential Excuse Doctrines
o Physical incapacity
o No knowledge of Occasion for Compliance
o Inability after reasonable diligence to comply
o Emergency
o Compliance involves greater risks
o Reasonableness under all the circumstances
No Excuse Violations: There are rare circumstances in which no excuses are permitted
because the nature of the statutes, such as child labor laws, pure food and drug laws, and
hazardous materials safety rules. These end up being strict NPS applications.

Strict Negligence Per Se: No excuses are permitted if the defendant violates a relevant
statute under the relevancy test.
Child Negligence Per Se (146): The jury may be instructed that violation of a relevant statute,
under the relevancy test, may be considered as evidence of negligence only if the jury finds that
a reasonable child of the same age, intelligence, maturity and experience as petitioner would not
have acted in violation of the statute under the same circumstances.
Circumstantial Evidence (148): evidence from which a reasonable inference can be drawn;
this plays an important role in Slip and Fall cases and Res Ipsa Loquitur.
Slip and Fall Duties of a store keeper: It is the duty of a storekeeper to provide reasonably
safe aisles for customers and he is liable for injury resulting from an unsafe condition either
caused by the active negligence of himself and his employees or, if otherwise caused, where
known to the storekeeper or is of such character or has existed a sufficient length of time that he
should have had knowledge of it.
Inference Test (150): Where from the proven facts the nonexistence of the fact to be inferred
appears to be just as probable as its nonexistence (or more probable than its existence), then the
conclusion that it exists is a matter of speculation, surmise, and conjecture, and a jury will not be
allowed to draw from it.
Res Ipsa Loquitor (152): a jury may draw a permissible inference of negligence from the
circumstances surrounding certain accidents pending on the satisfaction on three conditions: (1)
the accident which produced a persons injury was one which does not happen unless someone
was negligent, (2) the instrumentality or agent which caused the accident was under the
exclusive control of the defendant, and (3) the circumstances indicate that the untoward event
was not caused or contributed to by any act or neglect on the part of the injured person. Some

jurisdictions also require (P) to show that (D) has greater knowledge about what caused the harm
than (P).
Jury may infer negligence if:
- Accident doesnt usually occur without negligence
- (D) was in exclusive control of the instrumentality
- (P) was not contributory to the negligence

Defendants Options to Rebut RIL: Defendant can try to defeat the existence of RIL by
showing that one of the elements cannot be established by (P). (D) can also show that
they exercised due care.
Exclusive Control: The trend has been towards a liberation or elimination of the
exclusive control; the control element is a flexible concept which denotes no more than
elimination, within reasonable, of all explanations for the genesis of the injurious event
other than the defendants negligence.
Ybarra Outlier RIL in Hospitals: Where a plaintiff receives unusual injuries while
unconscious and in the course of medical treatment, all those defendants who had any
control over his body or the instrumentalities which might have caused the injuries may be
properly called upon to meet the inference of negligence by giving an explanation of their


Professional Standard of Care (165): For professionals such as doctors, lawyers, and
accountants custom plays a much more significant role: custom sets the standard of care, and
deviation from that custom constitutes breach of duty. Non-medical professionals are largely
expected to conform to the customary practices of their profession. Failure to do so is
negligence. Further, expert testimony is typically required to establish both the custom and the
defendants deviation therefrom.
Medical Malpractice: Medical performance Negligence - referring to all forms of carelessness
arising in the care of patients, such as mistakes in diagnoses, surgery, office treatment,
prescriptions, testing, surgical procedures, etc. Doctrine of Informed Consent focuses on
providing patient with information related to thir medical problems, the proposed treatments,
material risks involved, and alternative procedures so that patients may decide whether to
consent to proposed treatments.
Medical Performance Negligence (166): To establish professional medical negligence the
evidence presented by the patient must show a violation of the degree of care and skill required
of a physician. Such standard of care is that which, under similar conditions and like
circumstances, is ordinarily employed by the medical profession generally. An expert is typically
needed to proceed.

Professional Standard of Care: a physician must act with the degree of care,
knowledge, and skill ordinarily possessed and exercised in similar situations by the
average member of the profession practicing in the field in the relevant geographic
community. A physician must also consider the possibility of remote and slightly possible
diagnosiss especially if the potential harm is high.
No liability for Bona Fide Error of Judgment: A doctors compliance with any
acceptable methods protects her from malpractice liability. Where alternative methods can
be used, the defendants selection of one over the other is not evidence of negligence.

No liability for inherent Risks: Many medical procedures come with inherent risks. For
example, no matter how careful the medical personnel, some percentage people
undergoing surgery will get an infection.

Nature of Expert Testimony (169): In order to be a qualified expert, the expert need no
necessarily practice the same area of medicine as the defendant. Courts have typically held that
it is sufficient for the expert to show that she has knowledge of the customary practice in the
area of medicine practiced by the defendant in the relevant geographical area, even if that is not
her own practice area. Some courts, however, require an expert to have training and experience
in the field of medicine practiced by the defendant.
Common Knowledge Exception to Expert Testimony (171): a jury is permitted to find
negligence based on the nature of the events that brought about the plaintiffs harm without
expert testimony if no components require any expertise. Often these common knowledge
exception cases involve proof by RIL.
Doctrine of Informed Consent (175): Medical and surgical procedures that involve touching a
patients person, even the simplest manipulation of a limb, must be properly authorized or the
person performing the procedure would be subject to an action for battery. Absent special
circumstances, a competent individual has a right to refuse to authorize a procedure. There are
two major standards. The Professional Medical Standard / Traditional standard and the Lay
standard / materiality of the risk / prudent patient standard.

Professional Standard: the physician is required to disclose those risks which a

reasonable medical practitioner of like training would disclose under the same or similar
Lay Standard: The physicians disclosure duty is to be measured by the patients need
for information rather than by the standards of the medical profession. The lay standard
des not ordinarily require an expert testimony as to medical standards to establish the
physicians duty to disclose; rather, it is for the jury to determine whether a reasonable
person in the patients position would have considered the risk significant in making his or
her decision. Under this standard a physician must disclose those known risks which would
be material to a prudent patient in determining whether or not to undergo the suggested
Causation Tests: To recover under DoIC, as in all negligence cases, there must be a
causal connection between breach and the injuries suffered. Some states have adopted a
subjective standard, requiring the plaintiff to testify or otherwise prove that she would not
have consented to the proposed treatment if she had not been fully informed. The majority
test, objective, considers whether or not a reasonably prudent patient, fully advised of the
material known risks, would have consented to the suggested treatment.
Disclosure List: (1) diagnosis; (2) nature and purpose of the proposed treatment; (3)
risks and consequences of the proposed treatment; (4) probability that the proposed
treatment will be successful; (5) feasible treatment alternatives; and (6) prognosis if the
proposed treatment is not given.

Legal Malpractice (183): an attorney does not ordinarily guarantee the soundness of his
opinions and, accordingly, is not liable for every mistake he may make in his practice. He is
expected, however, to possess knowledge of those plain and elementary principles of law which
are commonly known by well-informed attorneys, and to discover those additional rules of law
which, although not commonly known, may readily be found by standard research techniques. If
the law on a particular subject is doubtful or debatable, an attorney will not be held responsible
for failing to anticipate the manner in which the uncertainty will be resolved. But even with an
unsettled area of the law, we believe an attorney assumes an obligation to his client to
undertake reasonable research in an effort to ascertain relevant legal principles and to make an

informed decision as to a course of conduct based upon an intelligent assessment of the


Causation: The plaintiff must usually prove that he would have been successful in his
initial lawsuit had the attorney not been negligent.

-- OUTLINE -Standards of Care:

o Adopts physical conditions
o Ignores mental conditions
o Considers emergencies
o B<PL
Child RPP
o Adult activity exception
o Inherently Dangerous Activity exception
o Std: reasonable child of same age/experience/intelligence
o No negligence under 7 years old
Statutory / NPS
o Is P in the class of persons?
o Is this the type of harm meant to be prevented?
o Excuses?
o Violates statute = negligence
o Doctors
Medical malpractice
Informed consented
Professional standard
Materiality of the risks / patient standard
o Other professionals?
o Attorneys

-- Limited Duty for Land Owners -The Status Trichotomy for visitors of an owners land: The common law gave landowners
special protection when a visitor was injured on their land, pending on their visitor status. The
duty owned to the defendant differs depending on whether, at the time of the accident, the
defendant was an invitee, a licensee, or a trespasser.

Invitee: one who enters on anothers land with the owners knowledge and for the mutual
benefit of both. An owner or occupier of land has a duty to use reasonable care to protect
an invitee from conditions that create an unreasonable risk of harm of which the owner or
occupier knows or by the exercise of reasonable care would discover. This status may be
determined through the economic benefit test (are they in business together?) or the
public invitation test (is this land open to the general public for business?).
Licensee: enters and remains on the land with the owners consent and for his own
convenience or on business with someone other than the owner. The duty owed to a
licensee s not to injure the licensee willfully, wantonly, or through gross negligence, and,
in cases in which the owner or occupier has actual knowledge of a dangerous condition
unknown to the licensee, to warn of or make safe the dangerous condition.

Trespasser: A trespasser enters anothers property without any lawful authority,

permission, or invitation. The only duty a premises owner or occupier owes to a trespasser
is not to cause injury willfully, wantonly, or though gross negligence.
Activity on Land Exception:
Attractive Nuisance Doctrine (216): A possessor of land is subject to liability for
physical harm to children trespassing thereon caused by an artificial condition upon the
land if: (a) the place where the condition exists is one upon which the possessor knows or
has reason to know that children are likely to trespass, and (b) the condition is one of
which the possessor [should] know[s] and [should] realize[s] will involve an unreasonable
risk of death or serious bodily injury to such children, and (c) 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, and (d) the utility of the possessor of
maintaining the condition and the burden of eliminating the danger are slight as compared
with the risk to the children involved, and (e) possessor fails to exercise reasonable care to
eliminate the danger or otherwise to protect the children.

Liable to children trespassers if:

(a) children are likely to trespass
(b) condition poses an unreasonable risk of injury to children
(c) children are too young/dumb to discover/understand the risk
(d) utility and burden is outweighed by the risk
(e) possessor fails to exercise reasonable care
Policy for Determining an unrecognized Duty / Rowland Factors: When trying to impose a
duty not explicitly recognized, it would be necessary to do a policy analysis that involves the
balancing of a number of considerations: the foreseeability of harm to (P), the degree of certainty
that (P) suffered injury, the closeness of the connection between the (D)s conduct and the injury
suffered, the moral blame attached to the (D)s conduct, the policy of preventing future harm,
the extent of the burden to the defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence
of insurance.
Rowland Factors in Vague Duty Situations:
(F)oreseeability of (P)
(C)onnection between parties
(P)ossibility of prevention

Mother Fucking Cool Cids Bangin Indian Pussy

Reasonable Unitary Standard Regardless of Visitor Status (222): The proper test to be
applied to the liability of the possessor of land is whether in the management of his property he
has acted as a reasonable man in view of the probability of injury to others, and, although the
plaintiffs status as a trespasser, licensee, or invitee may in the light of the facts giving rise to
such status have some bearing on the question of liability, the status is not determinative.
Dichotomy Standard for Visitors:
Duty to Protect Visitors (265): The majority of courts that have address this issue agree that
landowners do have a duty to take reasonable precautions to protect their invitees from
foreseeable criminal attacks. There are four basic approaches to determine if a criminal act is

foreseeable: (1) specific harm test, (2) the prior similar incidents test, (3) the totality of the
circumstances test, and (4) the balancing test.

Specific Harm Test: a landowner owes no duty unless the owner knew or should have
known that the specific harm was occurring or was about to occur. Most courts are
unwilling to hold a criminal act is foreseeable only in these situations.
Prior Similar Incidents Test: a landowner may owe a duty or reasonable care if
evidence or prior similar incidents of crime on or near the landowners property shows that
the crime in question was foreseeable. The important factors to consider are the number
of prior incidents, their proximity in time and location to the present crime, and the
similarity of the crimes. This test is often rejected for public policy reasons
Totality of the Circumstances Test: a court considers all circumstances surrounding an
event, including the nature, condition, and location of the land, as well as prior similar
incidents, to determine whether a criminal act was foreseeable.
Balancing Test: The court balances the degree of foreseeability of harm against the
burden of the duty to be imposed.

-- Limited Duty to Rescue or Assist -General Duty upon Risk Creation: A duty of reasonable care is imposed by the law if the
defendant has engaged in affirmative conduct that created the risks of harm that resulted in an
Misfeasance vs Nonfeasance: Courts differentiate between situations where (1) risks of harm
arose out of ones conduct (misfeasance), and (2) where risk of harm did not (nonfeasance). The
courts allow claims based on misfeasance and disallowed claims premised on nonfeasance.
Generally, there is no duty to assist or rescue.

Special Relationship Exception to Nonfeasance: duty is imposed when there is a

special relationship between the parties. The exceptions include special dependency and
interdependency relationships, such as parent/child and teacher/student; contractual
relationships where a party has agreed to provide aid; situations where a party has
voluntarily begun to assist; companions on a social venture engaged in a common
undertaking; innocent proper conduct creating the risk; reliance on a gratuitous promise;
intentional prevention of aid by others and where a statute imposes a duty to assist.
Views on Voluntary Assumption of Duty (244): (1) many cases say that there is no
liability if a volunteer quits, leaving the other party no worse off than he was before. (2) An
alternative view is that the volunteer us held to a standard of reasonable care and may not
quit if it is unreasonable to do so.

Affirmative Duty to rescue (Minority) (247): (a) a person who knows that another is
exposed to grave physical harm, shall to the extent that the same can be rendered without
danger or peril to himself or without interference with important duties owed to others, give
reasonable assistance unless assistance is provided by others. (b) Those who provide assistance
shall not be liable in civil damages unless his acts constitute gross negligence or he expects
Duty to Warn (250): If a third person has a special relationship with the victim or perpetrator,
that person may have a duty to take protective action against a foreseeable criminal indecent. A
defendant owes a duty of care to all persons who are foreseeably endangered by his conduct,
with respect to all risks which make the conduct unreasonably dangerous. If special relationship
exists between defendant and a foreseeable and identifiable victim, he must warn the victim and
police if reasonable to do so.

Duty to Control (252): under the common law, one person owed no duty to control the
conduct of another unless the defendant stands in some special relationship to either the person
whose conduct needs to be controlled or in a relationship to the foreseeable victim of that

Therapist-Patient Special Relationship: the therapist owes a legal duty not only to his
patient, but also to his patients would-be victim and is subject in both respects to scrutiny
by judge and jury.

Exception to Psychotherapist-Patient Privilege (225): There is no privilege if the

psychotherapist has reasonable cause to believe that the patient is in such mental or emotional
condition as to be dangerous to himself or to the person or property of another and that
disclosure of the communication is necessary to prevent the threatened danger.
Special Relationship Duty to Protect (263): in certain types of relationships, the common
law imposes a duty on one party to take reasonable affirmative measures, such as security
precautions, to protect the other party from foreseeable criminal activity. These relationships
include landlord-tenant, business owner-patron, property owner-invitee, hotel-guest, and
employer-employee. The school-student relationship, at least below the college level, has also
given rise to a legal obligation to protect the foreseeable misconduct of others.
Public Duty Doctrine (273): a municipality may not be held liable for injuries resulting from a
simple failure to provide police protection. A municipalitys duty is to provide police protection to
the public at large and not to any particular individual or class of individuals.

Special Relationship between municipality and the claimant exception: A

municipality may be held to owe a duty to an individual if a special relationship is
established. The elements of this special relationship are: (1) an assumption by the
municipality, through promises or actions, of an affirmative duty to act on behalf of the
party who was injured; (2) knowledge on the part of the municipalitys agents that inaction
could lead to harm; (3) some form of direct contact between the municipalitys agents and
the injured party; (4) that partys justifiable reliance on the municipalitys affirmative

-- Emotional Distress Injuries -Impact Rule (282): Plaintiff may recover where there was a physical impact but no physical
injury, even the slightest touching in an accidental context. Courts in these cases also required
proof of physical manifestations of injury arising from the emotional distress as a sort of
corroboration of the distress, but most cases have dropped this requirement.
Zone of Physical Danger Rule I: Fear for ones physical well-being; a plaintiff may recover for
pure emotional distress if the party was in the foreseeable zone of physical danger but escaped
without physical injury, at least where the distress arose from a fear for the plaintiffs safety. The
zone of physical danger is the geographic space within which a party is at foreseeable risk of
physical injury.
Zone of Physical Danger Rule II: Fear for the physical Well-Being of Another; Some courts
began to allow recovery where a family member was killed or seriously injured in an accident,
and the plaintiff, through within the zone of physical danger was not injured physically, but
suffered serious emotional distress at seeing the serious injury to a close relative.
Bystander Emotional Harm: Persons outside the Zone of Danger; Courts that have expanded
the scope of recovery to bystanders have limited the scope of liability through such devices as
requiring (a) that the plaintiff actually observe the injury, (b) that the plaintiff be closely related
to the victim, (c) that the resulting emotional distress be severe, and (d) initially that the plaintiff

suffer manifest physical consequences from the emotional distress. Clohessy also adds that (e)
the injury of the victim be substantial.
Independent Duty for Emotional Well-Being: Some emotional distress claims are directly
based on the defendants breach of an independent duty obligation to act reasonably for the
plaintiffs emotional well-being. Ex: Mishandling the remains of a decedent; a doctor telling a
patient to tell her husband she has syphilis when she didnt; a mom is entitled to sue when a
therapists sexually abuses her son that he is treating.
?? Burgess - Direct Victim (300): Damages for serious emotional distress is sought as a result
of a breach of duty owed the plaintiff that is assumed by the defendant or imposed on the
defendant as a matter of law, or that arises out of a relationship between the two.
Duty to Protect against Fear of Future Disease (312): a majority of the courts have
considered claims for fear of contracting AIDS and have required a showing of actual exposure to
HIV; objective. The fear must be reasonable.
-- Pure Economic Injury -Duty to Direct Customers: Although injuries may be foreseeable to the general public, a utility
company is only liable when there is a contractual relationship between the plaintiff and the
utility. As a matter of policy, liability is restricted for damages in negligence to direct customers
of utility in order to avoid crushing exposure to the suits of millions.
Duty to Reliant Business Partners Negligent Misrepresentation (H/O P27): One who, in
the course of his business, profession or employment, or in any other transaction in which he has
a pecuniary interest, supplies false information for the guidance of others in their business
transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance
upon the information, if he fails to exercise reasonable care of competence in obtaining or
communicating the information. Loss suffered (a) by the person or one of limited group of
persons for whose benefit and guidance he intends to supply the information or knows that the
recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the
information to influence or knows that the recipient so intends or in a substantially similar
No Duty to supply more than Bargained for: A denial of a benefit is not the commission of a
wrong. If conduct has gone forward to such a stage that inaction would commonly result, not
negatively merely in withholding a benefit, but positively or actively in working an injury, there
exists a relation out of which arises a duty to go forward.
Causation Burden: In order for the causation requirement to be met, a trier of fact must be
able to determine, by a preponderance of the evidence, that the defendants negligence was
responsible for the injury.
Defendant Would Not Have Made a Difference: When injury on part pf the plaintiff and
negligence on the part of the defendant concur, the plaintiff cannot, nevertheless, recover if the
defendant could not, by the exercise of due care, have prevented the accident from occurring.
But For Causation: But for (D)s negligence, (P) would not have been harmed.
Substantial Factor Test: Asks whether the defendants negligent conduct was a substantial
factor in contributing to the plaintiffs injuries. Use for when the But-For Test fails. If both
defendants contributed to the accident, the jury could not single out one as the person of blame.
There being two actions, the plaintiff was entitled to judgment against each for the full amount.

Substantial Factor (368): if (a) a negligent act was deemed wrongful because that act
increased the chances that a particular type of accident would occur, and (b) a mishap of that
very sort did happen, this was enough to support a finding by the trier of fact that the negligent
behavior caused the harm. Where such a strong causal link exists, it is up to the negligent party
to bring in evidence denying but for cause and suggesting that in the actual case the wrongful
conduct had not been a substantial factor.
Joint and Severally Liability: Where two or more independently negligent parties cause a
single indivisible harm, courts generally opt for the single solution of holding each defendant
liable for the entire harm. The plaintiff, however, is limited to only one recovery of damages, not
double recovery. Where there are collisions in rapid succession producing a single end result, and
no substantial proof as to what damage was caused by each collision, is to hold each tort-feasor
jointly and severally liable.
Loss of Chance Doctrine: allows a plaintiff to obtain damages from a defendant for a
heightened risk of death or injury, even if the plaintiff cannot prove by a preponderance of the
evidence that the ultimate injury was caused by the defendant's negligence. The vast majority of
the cases using a loss of chance measure of damages have involved medical malpractice.
According to the doctrine even if the patient's estate cannot prove that the doctor's negligence
caused the death of the patient, the loss of chance of survival is still of a compensable quantity,
and the estate can recover for the value of this loss.
Alternative Liability: Burden Shifting Rule; If Defendants are independent tortfeasors, and thus
each liable for the damage caused by him alone, but it is impossible to prove whose conduct
actually caused the harm, many jurisdictions presume that each Defendant was the actual cause
of the Plaintiffs injury. The wronged party should not be deprived of his right to redress. The
doctrine requires that the plaintiff bring all possible defendants into court and that the plaintiff
show the defendants all breached a duty of reasonable care. The burden then shifts to the
defendants to provide evidence of who caused the injury.
Market Share Liability: Use in occasions where a plaintiff cannot identify which manufacture,
among several, produced the product that caused the injury. Only a substantial number of
defendants must be present (not all), and each D who cannot prove that they are not liable is
liable for a percentage of damages equal to their market share. Liability is several only and is
based on overall risk produced in national market not individual plaintiffs.
Direct Consequences Test: The defendant is liable because the harm was directly caused by
(no intervening forces) and traced to the negligence of the defendants conduct. Intervening
forces can cut off liability under the direct consequences test, but only if they are unforeseeable.
This test is rarely used.
Foresight Test: limits liability based on the risks that made the conduct unreasonable/negligent
in the first place; issues rise if the plaintiff, consequences, or intervening conduct is arguably
unforeseeable. Exceptions include medical malpractice complications rule, the eggshell plaintiff
rule, and the rescuer rule.
Unforeseeable Consequence: as long as the defendants negligence created a reasonably
foreseeable risk of the general kind of harm that befell the plaintiff, the exact way or precise
manner the harm occurs does not matter for purposes of scope of liability. Foreseeable
consequences are those which are probable, according to ordinary and usual experience, those
which because they happen so frequently, may be expected to happen again. One is bound to
anticipate or foresee and provide against that which is unusual or that which is only slightly

The Risk Standard: an actor should be held liable only for harm that was among the potential
harms/risks that made the actors conduct tortious. This standard excludes liability for harms
sufficiently unforeseeable at the time of the tortious conduct so that they were not among the
risks/potential harms that made the actor negligent. This standard adapts better to defendants
with different standards of care doctors, children, etc.
Foreseeability Standard: a person is only liable for the reasonable foreseeable consequences
of his or her actions. The plaintiff must be within the general class of persons one would
anticipate might be threatened by the defendants conduct. This must also be the kind of harm
that one would reasonably anticipate.
-- Intervening Cause -Intervening Cause: An intervening act may not serve as a superseding cause, and relieve an
actor of responsibility, where the risk of the intervening act occurring is the very same risk which
renders the actor negligent.
Three-Pronged Test for Proximate Causation: (1) The tortfeasers conduct must have been
a substantial factor in bringing about the harm being complained of; and (2) there is no rule or
policy that should relieve the wrongdoer from liability because of the manner in which the
negligence has resulted in the harm; and (3) the harm giving rise to the action could have
reasonably been foreseen or anticipated by a person of ordinarily intelligence and prudence.
Third Partys Intervening Act: While it is true that criminal or tortious third-party conduct
typically severs the chain of proximate causation between a plaintiff and a defendant, the chain
remains unbroken when the third partys intervening intentional act is reasonable foreseeable.
Shifting Responsibility Issue: Sometimes third-party intervening conduct, even though
foreseeable, is so egregious, a court is motivated to conclude that the third party alone is
responsible for the damages and that his conduct supersedes the negligent conduct of the initial

Shifting Responsibility Factors (475): (a) the culpability of the intervener intentional,
criminal, reckless, negligence, or innocent; (b) the competence and reliability of the
person whom reliance is placed; (c) the interveners understanding of the facts and
situation; (d) the seriousness of the danger; the number of persons likely to be at risk of
danger; (f) the length of time elapsed between the conduct of the parties; (g) the
likelihood that proper care will or will not be used; and (h) the ease with which each of the
parties can take precautions.

-- Eggshell Plaintiff -Eggshell Skull Rule: One who violates the duty, imposed by law, of exercising due care not to
injure others may be compelled to respond in damages for all the injuries which he inflicts by
reason of the violation of such duty, even if a particular injury may have been aggravated by or
might not have happened at all except for the peculiar physical condition of the injured person.
Defenses and Immunities
-- Defenses to Negligence-Contributory Negligence (572): arises when the unreasonable conduct of the plaintiff
contributes to the plaintiffs harm. Under this defense, the plaintiffs recovery is barred because
of the plaintiffs own conduct, not due to any flaw in the primary negligence claim against the
defendant. The plaintiff is barred from recovery if her unreasonable conduct contributes in any
substantial way to her injury. This is an all-or-nothing approach.

Applies only to Negligence Culpability. The defense can only be used if the
defendants conduct was negligent and this defense thus was not available for any higher
form of culpability.
Last Clear Chance: a negligent plaintiff could still recover against a negligent defendant
upon proof that the defendant was more culpable because he had the last opportunity to
prevent the harm.
Disqualifying Statute: the defense could not be permitted to serve as a defense in
some contexts such as where the plaintiffs fault was based on a statute enacted to
protect a class of persons from their own inability to exercise self-protective care.

Comparative Fault (573): where both a plaintiff and a defendant are at fault, they should
share the responsibility rather that have it entirely on one party. Jurisdictions are split on Pure
Comparative Fault and Modified Comparative Fault.

Pure Comparative Fault: a negligent plaintiff recovers some damages from a negligent
defendant regardless of the plaintiffs degree of fault. Thus, under a pure approach, if a
jury determines that the plaintiff was 98% at fault, the plaintiff would recover 2% of the
damages from the negligent defendant.
Modified Comparative Fault: In a two-party accident, the plaintiffs recovery is barred if
the plaintiffs fault exceeds a certain percentage. Thus, in some jurisdictions following a
modified approach, the plaintiff is denied recovery if the fault of the plaintiff is found to
exceed that of the defendant (more than 50%). Other jurisdictions set the cutoff point to
recovery at 50%.
Doctrine of Avoidable Consequences: Defendant need no pay for any additional harm
that P could have avoided through reasonable care. After being harmed, plaintiffs must
take reasonable steps to avoid exacerbating their injuries.
Comparative Fault Assessment Factors: In assessing comparative fault, the following
factors should be considered: (1) whether the conduct resulted from inadvertence or
involved an awareness of the danger, (2) how great a risk was created by the conduct, (3)
the significance of what was sought by the conduct, (4) the capacities of the actor, where
superior or inferior, and (5) any extenuating circumstances which might require the actor
to proceed in haste, without proper thought.

Express Assumption of the Risk: arises when one person gives explicit written or oral
permission to release another party from an obligation of reasonable care. Express assumption of
the risk situations include the limitations of liability typically included on ski lift tickets,
permission slips for a teenager to play high school football, and health club contract. Note that
the person signing the waiver is giving up more than the right to recover if harmed by inherent
risks of the activity; the person is giving up the right to recover for injuries suffered as a result of
the defendants unreasonable conduct.

Invalid Exculpatory Clause Policy Analysis / Trunkl Factors: (a) it concerns a

business of a type generally thought suitable for public regulation; (b) The party seeking
exculpation is engaged in performing a service of great importance to the public, which is
often a matter of practical necessity for some members of the public; (c) The party holds
himself out as willing to perform this service for any member of the public who seeks it or
at least any member coming within certain established standards; (d) As a result of the
essential nature of the service, in the economic setting of the transaction, the party
invoking exculpation possesses a decisive advantage of bargaining strength against any
member of the public who seeks his services; (e) In exercising a superior bargaining power
the party confronts the public with a standardized adhesion contract of exculpation, and
makes no provisions whereby a purchaser may pay additional fees and obtains protection
against negligence; and (f) As a result of the transaction, the person or property of the

purchaser is placed under the control of the seller, subject to the risks of carelessness by
the seller of his agents.
Trunkl Factors for Invalid Exculpatory Clause
a. Business suitable for public regulation
b. service of great public importance/necessity
c. service available to public / members within certain standards
d. advantage in bargaining strength
e. Strict Standardized Contract
f. under sellers control and subject to risks of carelessness
Implied Assumption of the Risk: subjective; comprised of three basic elements: (a)
knowledge of the risk; (b) appreciation of the risk; and (c) voluntary exposure of the risk. The
burden of pleading and proving assumption of the risk is on the defendant. In its simplest and
primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent
to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury
from a known risk arising from what the defendant is to do or leave undone. For a plaintiff to
assume the risk, not only must she know and comprehend the risk, she must also voluntarily
expose herself to the risk. One cannot assume a risk involuntarily.
Implied Secondary Assumption of the Risk: the largest category of assumption of risk cases
where the plaintiff is said to assume the risk of the defendants negligence. Even though the
defendant in such cases is found to be at fault, the plaintiff is barred from recovery on the ground
that he knew of the unreasonable risk created by the defendants conduct and voluntarily chose
to encounter that risk.
AOF as Contributory Negligence: it may be said that a reasonable, prudent person exercising
due care for his own safety would not have engaged in the conduct. A miscalculation of the risk
constitutes contributory negligence.
Primary Assumption of the Risk Limited Duty: occurs when a party enters into a
relationship with another, knowing and expecting that the other person will not offer protection
against certain risks arising out of the relationship. If a participant is injured in the ordinary
course of the activity or by voluntarily observing the activity, he will not have a viable claim
against the owner of the instrumentality, because there is either no duty to remove all risks or
the owner has not breached any duty to the participant, and courts will dismiss the claim.
Typically, proof that the plaintiff was unaware of the risk is unavailing.

AOR Limited Duty Intentional Injury Exception: the general test is that a participant
in an active sport breaches a legal duty of care to other participants only if the participant
intentionally injures another player or engages in conduct that is so reckless as to be
totally outside the range of the ordinary activity involved in the sport.
Professional Rescuers Rule: even if acting in a volunteer capacity, rescuers are barred
from bringing actions against third parties whose proper negligence necessitated a
rescuers response in which the rescuer was injured. This is because rescuers were said to
have assumed the risks related to their jobs in undertaking the employment. An exception
exists for situations where an officer is injured in the line of duty merely because he or she
happened to be present in a given location, but was not engaged in any specific duty that
increased the risk of receiving that injury.

Statutes of Limitations

Intent (643): a person acts with intent to produce a consequence if: (a) The person has the
purpose of producing that consequence; or (b) The person knows to a substantial certainty that
the consequence will ensue from the persons conduct. The intention need not be malicious nor
need it be an intention to inflict actual damage. The intent is not necessarily a hostile intent, or a
desire to do any harm. The defendant may be liable although intending nothing more than a
good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or
even though seeking the plaintiffs own good.

Employers Intent to harm an Employee / Van Fossen Test: (1) knowledge by the
employer of the existence of a dangerous process, procedure, instrumentality or condition
within its business operation; (2) knowledge by the employer that if the employee is
subjected by his employment to such dangerous process, procedure, instrumentality or
condition, then harm to the employee will be a substantial certainty and just not a high
risk; and (3) that the employer, under such circumstances, and with such knowledge, did
act to require the employee to continue to perform the dangerous task.

Assault: Assault is an act by the defendant which arouses in the plaintiff a reasonable
apprehension of imminent battery, caused by the defendant who has the required intent.

Words Alone: Ordinarily, words alone cannot be an assault. However, words can
constitute assault if together with other acts or circumstances they put the other in
reasonable apprehension of imminent harmful or offensive contact with his person.
Apprehension: The plaintiff must have been aware of the defendants threatening at the
time, before it is terminated. Note that apprehension of the contact is all that is required; it
is not necessary that the plaintiff experience the emotion of fear
Elements of Assault
Affirmative Voluntary Act
- words alone insufficient
- Ds purpose or desire is to cause the apprehension, or D attempts a battery or false
imprisonment and fails
- substantial certainty rule
- transferred intent
- But for causation
Reasonable Apprehension of offensive contact or false imprisonment
- imminence of the threat no significant delay
- apparent ability to carry out threat
- P must be aware of threat
- fear not necessary
- (Exception: D knows of Ps timidity)
To a Person

Battery: Battery is a harmful or offensive contract (direct or indirect) with the plaintiffs person,
caused by the defendant who has the required intent. Courts are split on whether it is only
required to intend the contact which is in fact harmful (single intent), or whether the plaintiff
must also prove that the defendant intended not only the contact but also harm or offense (dual

Offensive Contact: contact which is offensive to a reasonable sense of personal dignity

is offensive contact. Offensive means disagreeable or nauseating or painful because of
outrage to taste and sensibilities or affronting insultingness.

Cigar Smoke: We cannot hold it is an assault or battery for a person to be subjected to

either to the apprehension of smelling cigar smoke or the actual inhaling of the smoke.
This is an apprehension of touching and a touching which must be tolerated in a crowded
Elements of Battery
- Ds subjective purpose to cause offensive contact / the apprehension of offensive
- D subjectively knew such contact was substantially certain to occur
- Transferred Intent
- But for Ds affirmative voluntary act P would not have been harmed
Harmful or Offensive Contact
- harmful or offensive to a reasonable person
To a person
- with a persons body or something attached or closely associated

Injury: A mere threat, unaccompanied by an offer or attempt to show violence, is not an assault.
The damages recoverable for assault and battery include those for plaintiffs mental disturbance
as well as for plaintiffs physical injury.
Intentional Infliction of Emotional Distress: One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another is subject to liability for
such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Conspiracy: an agreement between two or more individuals to do an unlawful act or to do a
lawful act in an unlawful way. To create civil liability for conspiracy, there must have been an
overt act committed by one or more of the conspirators pursuant to a common agreement and in
furtherance of a common objective.
Workers Compensation: A recover option for employees based on strict liability. The employer
cannot raise contributory negligence or other defenses. In return for eliminating a showing of
fault, employees are precluded from suing their employers in court for negligence. Recoveries
are extremely limited. Employees may recover some of their lost wages, lost earning capacity,
and medical expenses but cannot recover pain and suffering or other emotional distress or
punitive damages.
Transferred Intent (663): (1) If an act is done with the intention of inflicting upon another an
offensive but not a harmful bodily contact, or of putting another in apprehension of either a
harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor
is liable to the other for a battery although the act was not done with the intention of bringing
about the resulting bodily harm. (2) If an act is done with the intention of affecting a third person
in the manner stated in Subsection (1), but causes a harmful bodily contact to another, the actor
is liable to such other as fully as though he intended so to affect him.
False Imprisonment: the wrongful confinement, restraint, or detention of an individual to a
limited area. Modern courts have been challenging the requirement of the defendant being
aware of his confinement. The elements are: (1) a willful detention; (2) performed without
consent; and (3) without authority of law.

Shopkeepers Privilege (688): when a person reasonably believes that another has
stolen or is attempting to steal property, that person has legal justification to detain the
other in a reasonable manner and for a reasonable time to investigate ownership of the

False Imprisonment
- actual or apparent barriers
- no reasonable means of escape
- only brief time required
- knowledge by P usually required
- challengeable?
Of A Person
- But For causation
- affirmative voluntary conduct
- words alone may be sufficient
- purpose or desire to cause confinement
- substantial certainty
- transferred intent
-- Defenses and Privileges to Intentional Torts -Consent: Consent to sexual intercourse is not the equivalent of consent to be infected with a
venereal disease; knowledge of the harm to be inflicted is required. To constitute a consent, the
assent must be to the invasion itself and not merely to the act which causes it. Persons who
engage in roughhouse horseplay also accept the risk of accidental injuries which result from
participation therein. Consent is ineffective if the person lacks capacity to consent to the
Defense of Property (721): The value of human life and limb outweighs the interest of a
possessor of land. No privilege to use force intended or likely to cause death or serious harm
against another whom the possessor sees about to enter his premises or meddle with his chattel,
unless the intrusion threatens death or serious bodily harm to the occupiers or users of the
premises. He cannot gain privilege to install, for the purpose of protecting his land from
intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device
whose only purpose is to inflict death or serious harm upon such as may intrude.
Necessity: The privilege of necessity may be invoked when the defendant, in the course of
defending himself or his property (or others or their property) from some threat of imminent
serious harm for which the plaintiff is not responsible, intentionally does some act reasonably
deemed necessary toward that end, which results in injury to Ps property and which would
otherwise be a trespass or conversion. There are three elements to necessity. The first element is
that the defendants must have acted under the reasonable belief that there was a danger of
imminent physical injury to the plaintiff or to others. The second and third elements of the
necessity defense are intertwined. The second element is that the right to confine a person in
order to prevent harm to that person lasts only as long as is necessary to get the person to the
proper lawful authorities. The third element is that the actor must use the least restrictive means
of preventing the apprehended harm.

Guard Dog: If any dog shall do any damage to either the body or property of any person,
the owner shall be liable for such damages, unless such damage shall have been
occasioned to the body or property of a person who, at the time such damage was
sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing
such dog.

Public necessity: If the danger affects an entire community, or so many persons that the public
interest is involved, the privilege is complete and the defendants tort liability is entirely excused.
This is the case whether the defendant is a public official or a private citizen.
Private Necessity: If the danger threatens only harm to the defendant or his property (or to a
third person or his property), the defendant is privileged to commit the act which causes the
trespass or conversion, but he is subject to liability for compensatory damages for any resulting
actual physical harm.
Domestic Animals: One who possesses or harbors animals customarily domesticated in that
region is strictly liable for harm (0ther than harm resulting from trespass) only if (a) he knew or
had reason to know that the animal had a harmful or dangerous propensity or trait and (b) that
particular trait or propensity was the cause of the harm. Statutes in come jurisdictions impose
strict liability for certain kinds of harm (e.g., dog bites); irrespective of the keepers knowledge of
any propensity to cause that harm.
Wild Animals: One who possess or harbors animals not customarily domesticated in that region
is strictly liable for all harm done by the animal as a result of a harmful or dangerous propensity
or characteristic of such animal.
-- Abnormally Dangerous Activities -Ultra Hazards: Strict liability is imposed on those engaging in an ultra hazardous activity. An
ultra hazardous activity is an activity that (a) necessarily involves a risk of serious harm to the
person, land or chattels of others which cannot be eliminated by the exercise of the utmost care,
and (b) is not a matter of common usage.
Abnormally Dangerous Factors: (a) existence of a high degree of risk of some harm to the
person, land or chattels of others; (b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the
activity is not a matter of common usage; (e) inappropriateness of the activity to the place where
it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous
Restatement (Second) Abnormally Dangerous Factors: Damn, Mom I Especially Love Vagina
(D)egree of risk harm to persons or land
(M)atter of common usage (how common is the activity?)
(I)nappropriateness of the location of activity
(E)xercise of reasonable care (could you eliminate risk by exercising reasonable care?)
(L)ikelihood that the harm that results will be great
(V)alue of community balanced against dangerous attributes

Restatement (Third) Abnormally Dangerous Factors: (1) the activity creates a

foreseeable and highly significant risk of physical harm even when reasonable care is
exercised by all actors, and (2) the activity is not one of common usage.

-- Strict Products Liability -Products Liability Prima Facie

- Manufacturer or Seller
- Business Related to Goods
- Other issues

- Manufacturing Defect
- Design Defect
Consumer Expectations Test
Risk-Utility Test
Two-Pronged Test
- Warning Defect
- But-for / Substantial Factor Test
Implied Warranty of Merchantability: under this code, sellers, as a matter of law, provide a
warranty that their goods are merchantable: fit for the ordinary purposes for which such goods
are used. If the buyer can establish that a product was not fit for ordinary purposes and caused
injury, the buyer can recover without having to prove fault on the part of the seller. Thus, breach
of an implied warranty is based on strict liability, as is breach of express warranty. This warranty
is extended to the purchaser, members of his family, and persons occupying or using the product
with the owners consent.

Strategies to avoid Liability (785): for example, (1) if, by contract, they properly
disclaim an implied warranty or expressly limit the available remedies; (2) if the injured
person was not a purchaser of the product (no privity of contract) and does not qualify as
a third-party beneficiary; (3) if the buyer fails to give reasonably prompt and full notice; or
(4) if the product is considered merchantable because it matched customary industry
design standards for such products.

Manufacturers: a manufacturer incurs an absolute liability when an article that has been
placed on the market, knowing that it is to be used without inspection, proves to have a defect
that causes injury to human beings. The privity of contract is not required to assert an implied
warranty of merchantability claim against the manufacturer.
Elements of SPL: (1) article was placed knowing it is to be used without inspection; (2) proves
to have a defect, and; (3) injury to a human being.
Restatement (2nd) on SPL Section 402A: (1) One who sells any product in a defective
condition unreasonably dangerous to the user of consumer or to his property is subject to liability
for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the
seller is engaged in the business of selling such a product and (b) it is expected to and does
reach the user or consumer without substantial change in the condition in which it is sold. (2) The
rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the
preparation and sale of his product, and (b) the user or consumer has not bought the product
from or entered into any contractual relation with the seller.
Proper Plaintiff: user or consumer or his property that has been physically harmed; no need for
contract of privity. Courts have applied strict liability to all those foreseeably placed at risk by
defects in products.
Proper Defendant: a manufacturer who is in the business of making or selling the product;
within the marketing chain; Section 402A applies to any person engaged in the business of
selling products for use or consumption. It therefore applies to any manufacturer of such product,
to any wholesale or retail dealer or distributor, and to the operator of a restaurant. The rule does
not, however, apply to the occasional seller of food or other such products who is not engaged in
that activity as a part of his business. Most courts have applied strict liability to all in the
distribution chain.

Alteration: modifications or hampering of the product by a third party may cut off liability.
Section 402A applies where the product is, at the time it leaves the sellers hands, in a condition
not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. To
prevail in a strict liability case, a plaintiff must prove that his injuries resulted from an
unreasonably dangerous or defective condition of the product and that the condition existed at
the time the product left the manufacturers control. Plaintiff must also eliminate a possible
secondary cause.
Ordinary Consumer Expectation Test: Is the product more dangerous than an ordinary
consumer would expect with reasonable use? 402A applies only where the defective condition of
the product makes it unreasonably dangerous to the user or consumer. The article sold must be
dangerous to an extent beyond that which would be contemplated by the ordinary consumer
who purchases it, with the ordinary knowledge common to the community as to its
characteristics. Objective.
Types of Product Defects: Section 402A was applied by the courts to cases involving the three
basic types of product defects: manufacturing, design, and warning defects.
Manufacturing Defect: an imperfection, shortcoming, or abnormality in a product that departs
from its design specifications and prevents the product from safely performing its intended
function. The product in question typically is compared to the manufacturers own standards or
specifications to determine if there is a difference that makes the product less safe. The ordinary
consumer expectation test is applicable. This is a strict liability standard. There are essentially
two ways to prove a manufacturing defect: (1) proof of deviation from design specifications and
(2) circumstantial evidence allowing an inference of such a defect

Burden: a plaintiff has the burden of showing that the product was defective, that the
defect was the proximate cause of his or her injuries and that the defect existed at the
time the product left the manufacturer. The plaintiff need not present direct evidence of
the defect. The plaintiff may present a case-in-chief evidencing the occurrence of a
malfunction and eliminating abnormal use or reasonable, secondary causes for the
Circumstantial Evidence: it may be inferred that the harm sustained by the plaintiff was
caused by a product defect existing at the time of sale or distribution, without proof of a
specific defect, when the incident that harmed the plaintiff: (a) was the kind that ordinarily
occurs as a result of product defect; and (b) was not, in the particular case, solely the
result of causes other than product defect existing at the time of sale or distribution.

Design Defect: To find a design defect most jurisdictions use both the OCE test and the R/U test
(some use only one or the other). Generally, a design defect exists when safety hazards in the
design could reasonably have been eliminated. Most commonly, a design defect can be found if a
reasonable, safer, cost-efficient design was technologically feasible when the product was sold
that would not unduly impair the overall utility of the product. Thus, a manufacturer can be liable
for design defects even though the product satisfies its own design standards. The consumer
expectation test and risk utility test are applicable. This is a negligence, not a strict liability,

Risk Utility Analysis: Whether the risk of manufacturing the product as is will cause
harm and the gravity of the harm outweighs the harm against the economy and
mechanical feasibility of an alternative design. If the risk equals the utility, then in
jurisdictions that require a burden of proof, the defendant (manufacturer) would win. For
an alternative design argument, the plaintiff will have to show that this alternative design
would work and also its safety and feasibility wont impair other areas of the products
use. Some jurisdictions, like CA, shift the burden to the defendant to shoe the utility
outweighs the risk.

Barker Factors for the Risk-Utility Balancing Test

(a) The gravity of the potential harm resulting from the use of the product
(b) The likelihood that such harm would occur
(c) The feasibility of an alternative design
(d) The cost of an alternative design
(e) The disadvantage of an alternative design
(f) other relevant factors

Reasonable Alternative Design: a product is defective in design when the foreseeable

risks of harm posed by the product could have been reduced or avoided by the adoption of
a reasonable alternative design by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the alternative design renders the
product not reasonably safe. This does not apply when the product design is manifestly
unreasonable. Plaintiff are additionally not required to produce expert testimony in cases
in which the feasibility of a reasonable design is obvious and understandable to

OCE for Design Defects: a plaintiff must ordinarily prove (1) that the defendant
manufactured or sold the product, (2) that the product was unchanged from the date of
sale or that any changes were reasonably foreseeable, (3) that the product was used in a
reasonably foreseeable manner, (4) that the product did not perform as safely as an
ordinary consumer would have expected, (5) that the plaintiff was harmed, and (6) that
the products design was a substantial factor in causing the harm.
Causation: Most courts today require the plaintiff to show that the design feature
aggravated the plaintiffs injuries, and the defendant is then responsible for all the injuries
except those that the
Defective Per Se: A product design that fails to comply with a safety statute or
administrative regulation renders it conclusively defective regarding the risks sought to be
reduced or eliminated by the safety rule.
Open and Obvious Rule: If a product is designed so that it is reasonably safe for the use
intended, the product is not defective even though capable of producing injury where the
injury results from an obvious or patent peril. Manufacturers are not liable for failure to
make adult products child proof.
Two Pronged Design Defect Test: Court apply both the OCE and R/U test.

Warning Defect: Defendant is only held liable for not warning about risks it knew or should
have known in most jurisdictions. Some allow knowability and even unknown risks. A product
may have a warning defect if the manufacturer fails to warn consumers of a material risk of
danger in the use of the product. A warning defect may also exist when the warning given is
inadequate. Courts typically use negligence principles to establish a failure to warn claim under
section 402A. The plaintiff must prove that the manufacturer failed to exercise reasonable care in
providing a warning. This usually involves consideration of factors such as the explicitness of the
dangers presented, the clarity of the statements, the manner of presentation, and the persons to
whom the warning is addressed. This is a negligence, not a strict liability standard.
Manufacturers have a duty to warn users of latent risks and also risks that the users may not
fully appreciate. They also have a duty to provide instructions on how to safely use the product.

Adequacy of Warning (851): A manufacturer may be liable for the failure to adequately
warn where its warning is not prominent, and not calculated to attract the users attention
to the true nature of the danger due to its position, size or coloring of its lettering. A
warning may be found to be inadequate if its size or print is too small or inappropriately
located on the product. The warning must be sufficient to catch the attention of persons

who could be expected to use the product, to apprise them of its dangers, and to advise
them of measures to take to avoid these dangers. The failure to use a universal symbol of
warning, such as a skull and crossbones, can result in manufacturer liability.
Principal Criteria in evaluating the adequacy (reasonableness) of a warning
(a) the explicitness of the warning
(b) whether the warning language is comprehensible to typical users
(c) the clarity of the warning
(d) the conspicuousness of the warning
(e) the means used to convey the warning

Causation: As to causation, liability for failure to warn exists when there is sufficient
evidence that a warning might have made a difference. Even when a warning is provided,
the failure to read it does not necessarily bar recovery where the plaintiff is challenging
the adequacy of the efforts of the manufacturer to communicate dangers of the product to
the buyer or user. Plaintiff must prove that (a) the product caused the injury and (b) that a
warning would have altered the users behavior such as to avoid the accident.
Learned intermediary doctrine: usually applied to prescription drug cases: the
producer need only warn the learn intermediary (health care provider) of the risk and may
rely on the intermediary to make reasonable choices and advise the patient. In the case of
prescription drugs, the duty to warn runs to the physician, not to the patient.
Allergic Reactions: The general rule in cases involving allergic reactions is that a
warning is required when the harm-causing ingredient is one which a substantial number
of persons are allergic.

Unavoidable Risks / Comment K: Manufacturers will be relieved from strict liability only when
it demonstrates that it has met the requirements of Comment K: (1) the product is properly
manufactured and contains adequate warnings, (2) its benefits justify its risk, and (3) the product
was at the time of manufacture and distribution incapable of being made safer. Usually applied
to prescription drug cases.
Unknown Risks: Drug manufacturers are not strictly liable for a risk that was not known or
reasonably scientifically knowable. They are also specifically precluded from warning of adverse
reactions when differences of opinion exist within the medical community with regard to
potential adverse reactions.
Was the Product unforeseeably misused?: Mishandling or misuse, by the consumer or by
anyone else other than the defendant itself is a limited and partial defense.
Foreseeable Misuse of the Product: A defendant cannot defend against a products liability
suit on the basis of a misuse that he invited. A seller who is subject to SPL is responsible for the
consequences of selling a defective product even if the defect was introduced without any fault
on his part by his supplier or by his suppliers supplier. Manufacturers have a duty to protect
against all foreseeable uses, reasonable and unreasonable. Typically, there is no liability for
unforeseeable uses.
Causation: Generally, the plaintiff must resent sufficient evidence that the alleged defective
condition of the product was a but-for cause or a substantial factor in contributing the injuries.
Successor Corporation Liability: Shareholders of a dissolved company are generally immune,
absent fraud, from the liabilities of the dissolved company. Companies are dissolved and
subsumed into other companies in a number of different ways. There are essentially three
concepts for the ways for companies to be bought out: (1) a sale of assets, (2) a statutory
merger, or (3) a purchase for a controlling number of stock. The exception to these rules include:

consent, fraud, or the conclusion that the successor is essentially the same company as the
Scope of Liability: Was this a foreseeable use?
-- Damages -Economic Recovery on a Product that Self-Destructed: a manufacturer in a commercial
relationship has no duty under either negligence or SPL to prevent a product form injuring itself.
Pure Economic Loss: The general Rule for products liability law is that a party may not recover
for pure economic loss based on strict tort liability principles.
-- Defenses -Modified Comparative Fault: So long as a plaintiffs negligence remains less than a
defendants negligence the plaintiff may recover; in such a case, plaintiffs damages are to be
reduced in proportion to the percentage of the total negligence attributable to the plaintiff.
Contributory Negligence: is not a defense when such negligence consists merely in a failure
to discover the defect in the product, or to guard against the possibility of its existence.
Contributory negligence which consists in voluntary and unreasonably proceeding to encounter a
known danger, and commonly passes under the name of assumption of the risk, is a defense.
Plaintiffs Conduct as Affirmative Defenses
Contributory / Comparative Fault
- Failure to be aware of the defect
- other failures
Express Assumption of the Risk
Implied Assumption of Risk
Modification or Alteration of the product
-- Personal Injury Damages -Past Earnings / Future Lost Earnings: the court must determine future lost earnings on the
basis of potential rather than demonstrated earning capacity. The court must extrapolate that
potential from the plaintiffs individual characteristics such as age, sex, socio-economic status,
family characteristics, criminal behavior, academic record, intelligence and dexterity. Further, the
plaintiffs occupational abilities, industriousness, work habits and experience are relevant in
estimating future earnings he would accrue over the course of his lifetime.
Medical and care taking: Subject to the collateral source Rule; no duty to mitigate by
accepting a less costly form of medical care.

Collateral Source Rule: payments to the injured party from a collateral source are not
allowed to diminish damages recoverable form the tortfeaser. This rule applies when either
(1) the source of the benefit is independent of the tortfeasor or (2) the plaintiff contracted
for the possibility of double recovery.

Pain and Suffering: covers attorneys fees; Includes physical pain, Mental Suffering (anxiety,
physical manifestations of axiety, depression), emotional distress, PTSD; more than half of the
states legislatures have enacted statutory caps on non-economic damages in personal injury
cases. Economic losses are all damages capable of economic determination, and non-economic
damages are all others, including pain and suffering and consortium losses.

Inflation: Inflate and discount, real interest rate, and Cancel-Out

Rule of Avoidable Consequences: Where a plaintiff unreasonably fails or refuses to undergo
medical treatment that would alleviate the medical difficulties, the defendant may be relived of
the responsibility for damages.
Property Damages: if the property is damaged, the recovery is measured by the diminution in
market value as of the day of the accident.
Loss of Consortium: include the loss of the injured persons services, society, companionship,
affection, and sexual relationships. The plaintiff should prove the nature of the relationship
before the relationship before the accident and its impairment after the accident. Courts differ
over whether juries should consider the issue either as a separate item of damages or as a factor
to be considered in evaluating pain and suffering.
Loss of Enjoyment of Life: considered as a part of making the injured person whole.
Consciousness is immaterial in awarding damages for loss of enjoyment of life because the
impairment exists independent of the injured partys ability to comprehend it.
Mental Anguish: requires evidence of a high degree of mental pain and distress that is more
than mere worry, anxiety, vexation, embarrassment, or anger. To recover for mental anguish a
plaintiff must offer direct evidence of the nature, duration, and severity of their mental anguish,
thus establishing a substantial disruption in the plaintiffs daily routine, or other evidence of a
high degree of mental pain and distress that s more than mere worry, anxiety, vexation,
embarrassment, or anger.
Property Damage: If the property is damaged, the recovery is measured by the diminution in
market value as of the day of the accident.
-- Punitive Damages -Punitive Damages: Punitive or exemplary damages are available where a defendants conduct
is found to demonstrate the requisite higher degree of culpability about negligence. There are
three guideposts: (1) the degree of reprehensibility of the defendants misconduct; (2) the
disparity between and the actual or potential harm suffered by the plaintiff and the punitive
damages award; and (3) the difference between the punitive damages awarded by the jury and
the civil penalties authorized or imposed in comparable cases. Generally okay unless grossly
excessive in violation of due process.
Wrongful Death: racially based life expectancy ad related data may not be utilized to find a
reduced life expectancy for a claimant in computing damages based on predictions of life
expectancy. It can no longer automatically be assumed that women will absent themselves from
the work force for prolonged intervals during their child-bearing/child-rearing years.