-Issue spotter

-Policy questions
Intentional Torts

Battery
Assault
False Imprisonment
Trespass
Trespass to Chattel
Defenses
Privileges
Necessity

Battery
1) Intent Vosburg v. Putney: LIABILITY.
a) Transferred Intent: 3d party gets harmed while D purposefully intends to touch another. Keel v. Hainline:
LIABILITY
2) To Touch (Harmful or Offensive Contact)-Restatement 18 & 19.
a) Eggshell Doctrine: Doesnt need intend to harm, but must actually cause harm (take P as you found her).
b) Has to be offensive to P White v. University of Idaho LIABILITY-EGG SHELL DOCTRINE
c) Physical contact
i) Can be clothing or anything connected to person
(1) Min contact
(a) Smoke Leichtman v. WLW Jacor Communications LIABILITY
Exceptions
a. Implied License Knight v. Jewett: NO LIABILITY
b. Insanity Defense (not a defense) Polmatier v. Russ LIABILITY
(b) Crowded World Doctrine: accidents could happen in certain situations.
3) With victim or third party
a) Needs consent
i) Must be expressed implied and Mohr v. Williams LIABILITY
ii) Has to be within the scope of the consent Grabowski v. Quigley LIABILITY, Brzoska v. Olson NO
LIABILITY
b) UNLESS/no liability if
i) Its an emergency
(1) Consent Implied in Law-Court values life Werth v. Taylor NO LIABILITY
ii) Illegal activity McNeil v. Mullin LIABILITY
(1) BREACH OF PEACE CAN RECOVER (public policy concern)
iii) Intoxication negates consent Hollerud v. Malamis LIABILITY
(1) Recovery if D knows P is intoxicated

2. Intent
a.

Vosburg v. Putney: LIABILITY.

i. Intent to kick the person even though had no intent or could have foreseen the shin to become
lame.
ii. Different if it was at the playground-implied license.
IMPLIED LICENSE: What is reasonable in the context & expectations of the situation makes touch not
unlawful.
b. Knight v. Jewett: NO LIABILITY
i. D stepped on Ps finger during football game-no purpose of D. Both parties agreed to play
football.
TRANSFERRED INTENT DOCTRINE:
Holds D liable when he intends to commit a tort against one person but instead
i) Commits different tort against that person
ii) Commits same tort as intended but against a different person, or
iii) Commits different tort against a different person.
(1) Type 1- transferred between people- meant to hit B, actually hit C
(2) Type 2- assault- intent to put someone in eminent apprehension of a contact, and you actually touch
and that contact is harmful and offensive.
c. Keel v. Hainline: LIABILITY
i. D was intentionally throwing erasers at boys in class, but hit P instead.
ii. If A intends to commit battery against B, and accidently contacts C A is liable to C!
d. Manning v. Grimsley: LIABILITY

i.

L for baseball player throwing ball at hecklers and hitting a bystander-if intended to harm one
person and caused harm to a third party then L.
INSANITY AS A DEFENSE FOR INTENT: Insanity is not a defense.
e. Polmatier v. Russ LIABILITY
i. L for an insane man killing his father-in-law. Insane people can have intent even if irrational.
3.

To Contact (Touch)

Restatement 18 Battery: Offensive Contact

An actor is subject to liability to another for battery if
He acts intending to contact and that contact is harmful or offensive with the person of the other or a
3rd party, or an imminent apprehension of such contact, AND
An offensive contact with the person of the other directly or indirectly results
Direct or indirect touch:
Direct: A hits B
Indirect: HYPO

A pulls out chair intentionally from B, B falls and is injured. If A can be found to be substantially
certain that Bs fall would cause contact then A is liable for battery to B.
a. White v. University of Idaho LIABILITY-EGG SHELL DOCTRINE
i. L for piano stroke on back causing adverse bodily harm-intended to contact her even if he
didnt intend to harm and still resulted in harm- still purpose intent. Also didnt have
permission, which makes it harmful and offensive contact.
b. Leichtman v. WLW Jacor Communications LIABILITY INDIRECT TOUCH
i. D intentionally blows smoke in Ps face during radio interview. P interviewed as an antismoking advocate.
ii. If you manipulate particular matter capable of making physical contact and offending a
reasonable sense of personal dignity, could be liable for battery.
c. Madden v. D.C. Transit Systems, Inc. NO LIABILITY INDICRECT TOUCH with no intent
i. P witnessed D permitting fumes & oil to spew from the bus.
ii. Absent a showing of malice, willfulness, or specific wrongful intent, the D cant be held liable
for the acts alleged. They werent able to control the emissions.
iii. IT IS NOT NECESSARY TO TOUCH PS BODY, OR EVEN CLOTHING. KNOWCKING, SNATCHING,
TOUCHING, ETC. ANYTHING CONNECTED WITH PS PERSON CAN BE ENOUGH FOR CONTACT IN
BATTERY.
d. Morgan v. Loyacomo: LIABILITY DIRECT TOUCH
i. D followed P out of store and snatched Ps bags accusing her of theft. P stole nothing.
Offensive contact bc it embarrassed her. Merchant may use reasonable force to retrieve stolen
goods, but if he is wrong, liable for battery.
e. Wallace v. Rosen NO LIABILITY CROWDED WORLD DOCTRINE
i. Fire drill at school. P was in stairwell. D teacher asked her to move and slightly touched her. P
fell. She could have reasonably expected to be touched in this situation.
ii. Circumstances and relation will affect whether the touching was offensive to an ordinary
person, not unduly sensitive as to personal dignity.

4. With Victim (or Third Party)

Medical Consent: Scope of consent
a. Mohr v. Williams LIABILITY EXPRESS CONSENT UNLESS EMERGENCY
i. P (patient) consents to D (doctor) for surgery on her right ear in a non-emergency situation. D
operates on left ear, determining it to need surgery
ii. When consent for an operation is not given, and emergency doesnt exist, consent to deviate
from original operation is mandatory in order to escape liability.
b. Grabowski v. Quigley LIABILITY NO IMPLIED CONSENT
i. Patient gave consent to his doctor to perform surgery, but his doctor assigned someone else to
do the surgery. Consent is limited in its scope. It is limited to whoever consent is given.
c. Brzoska v. Olson NO LIABILITY MISREPRESENTATION WAS NOT MATERIAL.
i. Doctor did not disclose his illness for hiv. The consent of patient was not outside the scope of
what the doctor performed. The omission of material fact was not relevant bc it would not have
been contagious to people. A reasonable person would not have found this touch offensive.
d. Cohen v. Smith LIABILITY RIGHT TO SPECIFY SCOPE OF CONSENT
i. Lady signed a form that she did not want someone else other than the doctor to see her naked.
Someone else touched her unclothes body (male nurse). This was not an emergency situation.
Free to request preferences/scope of consent.
e. Werth v. Taylor NO LIABILITY IMPLIED IN LAW EXCEPTION (EMERGENCY-SERIOUS BODILY INJURY OR
DEATH)
i. Lady did not want a blood transfusion. She signed a form where she specified it. Was having
twins, and would have died if there were no blood transfusion.
ii. The law implies the consent of an unconscious patient to medical procedures needed to
preserve the patients life.
Consent to a Crime EXCEPTIONS

f.

Hart v. Geysel NO LIABILITY CONSENTED TO DOING ILLEGAL ACT AND GOT INJURED, THEN SUED THE
PARTY. UNDER THE LAW HE/SHE CANNOT RECOVER.
i. P and D consent to engage in Illegal prize fighting. P dies. No recovery. Cannot claim battery
after consenting to illegal act done for sport. No man shall profit from his own wrongdoing. Ps
own consent bars his recovery.
g. McNeil v. Mullin LIABILITY CAN RECOVER UNDER BREACH OF PEACE
i. Illegal road rage fight. 3rd party gets injured. Recovery is allowed because innocent 3rd parties
need protection. Breached the peace.
Intoxication can negate consent- no ability to rationalize
h. Hollerud v. Malamis LIABILITY
i. P is drunk at Ds bar and bartender arm-wrestles him. P sued for injuries. If P, admitting
intoxication, is incapable of expressing a rational will, and D knows hes drunk, the consent is
ineffective.
i. HYPO: A is on the street and meets B, who has been drinking all night. A asks B to arm-wrestle,
unknowing that B has been drinking. B sued for injuries. A not liable to B.

Assault

Elements:
1) Intent
a) Purpose: To cause imminent apprehension or make harmful contact
i) Reasonable person standard: what a reasonable P would think harmful contact is.
b) Knowledge: known or should have known would cause imminent apprehension
c) Transferred: meant to cause IA/make harmful contact with one person- cause IA to third party
2) To contact or cause imminent apprehension of contact
a) Timing: almost at once, D can presently carry out threat.
3) Causes victim imminent apprehension of dangerous contact
a) Victim MUST be aware and apprehensive of immediate contact
b) There MUST be certainty that the contact will occur immediately

1. Intent
a.

2.

Newell v. Whitche: LIABILITY

i. Piano teacher stays night at students house. Dad came in in the middle of the night soliciting
sex. She stayed up with fright. Objective standard. A reasonable person under these
circumstances would experience imminent apprehension. Doesnt matter that he left.

Imminent Apprehension
a.

Brower v. Ackerly: NO LIABILITY

i. P hated billboards that Ds were putting up and got the city to declare them illegal. P received
threatening calls from Ds and sued assault. Was not immediate physical threat. Instead, was
near future. D must be standing outside Ps house or be in some other way visibly causing
imminent apprehension for the assault to occur.

3. Victims Awareness
a.

Landford v. Shu: LIABILITY

i. D helped her sons play a trick on a woman, snake in a box, caused her to run away, fell and
injured knee intended fear even though not malicious, P was aware of the snake.

False Imprisonment
1) D Intentionally 35
2) Causes P to be Totally Confined 35
a) Confinement must be complete 36 Eilers v. Coy
i) Future thread is not enough
b) Can be confinement even if there is means of escape 36
i) UNLESS
(1) Exit is well known
c) Actual Physical Barrier 38
i) Trapped in a car
d) Apparent Barrier 38
i) Stealing wallet or crutches
3) And P is aware of confinement 35
4) Exceptions
a) NL if P is prevented by D to X activity, but not the rest of the world 36
b) NL if at one point P consents Peterson v. Sorlien
c) Citizens Arrest
i) Has to be a felony Melton v. LaCalamito
ii) Must be reasonable Beggett v. Bank & Bright v. Ailshie
35. False Imprisonment
An actor is subject to liability to another for false imprisonment if
He acts intending to confine the other or a third person within boundaries fixed by the actor, and

 His act directly or indirectly results in such a confinement of the other, AND
The other is conscious of the confinement or is harmed by it.
If there is no intent, he/she is not liable.
36. What is Confinement?
For D to be liable for FI, Ps confinement within the boundaries fixed by D must be complete.
Confinement is complete although there is a reasonable means of escape, unless the other knows of it.
D not liable for FI by intentionally preventing another from going in a particular direction which he has a right or
privilege to go
38. Confinement by Physical Barriers
The confinement may be by actual or apparent physical barriers.
A takes away the crutches of B who, being a cripple, is unable to walk w.o. them. A has confined B.
Citizens Arrest:
1) Allowed on most jurisdictions
2) Has to be reasonable
a) There must be a reasonable belief as to the fact of theft
b) Detention must be conducted in a reasonable manner and no deadly force
c) Detention must be only for a reasonable period of time, only for purpose of making investigation.
3) Has to be a felony (there has to be a felony even if arrested the wrong person)
4) Once it has been established that P is innocent, he has to be immediately released.
a. Bright v. Ailshie NO LIABILITY for bounty hunter who arrested the brother of a guilty man whose
identity was given-had probable cause to believe he was a felon (lawful-Michigan) and also there was
an actual felony
b. Beggett v. Bank NO LIABILITY this is not citizens arrest case bc arrested solely by the police based
on good faith statements of teller. Did not make any untrue statements or extra effort to procure
arrest- not knowingly false and within police discretion to arrest him.
c. Melton v. LaCalamito LIABILITY for man who gave false statements to police to have man arrested
for stealing when he did not steal-gave knowingly false information to authorities.
d. Peterson v. Sorlien NO LIABILITY for parents who held daughter in deprogramming facility- no actual
confinement because mere limitation on childs mobility, she had ways out that she knew of. Went
out for a picnic with father, roller skating etc.
e. Eilers v. Coy LIABILITY for deprogramming facility-never consented and was physically restrained
each time tried to escape.

Trespass
Elements
1) Intentionally 158
a) Enters land in possession of other, or
b) Causes a thing or person to do so, or Pegg v. Gray
c) Remains on the land, or
d) Fails to remove from the land a thing, which he is under duty to remove.
e) Mistake (thinks he is owner or has consent from 3rd person) is not a defense 164
2) Misrepresentation Desnick v. ABC
a) There is trespass when P gives D consent under Ds misrepresentation
i) There is an omission of material fact (violates interest Trespass seeks to protect)
ii) Hypo: a person will come into a house claiming to be Ameren. Here, there is a trespass and negates
consent.
3) Exceptions
a) Restricted Consent by owner 168
i) So far as the restriction/condition is complied with
(1) Business Exception Desnick v. ABC
b) Unintentionally and non negligently enters (cannot be a dangerous activity) 166 Malouf v. Dallas Athletic
Club
i) Ex: walking horse and gets frightened by locomotive unmanageable & goes into Bs land.
158. Liability for Trespass
One is subject to liability whether or not there is harm if,
Enters land in possession of the other, or causes a thing or a third person to do so, or
Remains on the land, or
Fails to remove the land a thing that he is under a duty to remove.
168. Conditional or Restricted Consent
A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or
restriction is complied with.
164. Intrusions under Mistake

One who intentionally enters land in the possession of another is subject to liability to the possessor of the land as
a trespasser, although he acts under a mistaken belief of law or fact, however reasonable, not induced by the
conduct of the possessor, that he
Is in possession of the land or entitle to it, or
Has the consent of the possessor or of a third person who has the power to give consent on the possessors
behalf, or
Has some other privilege to enter or remain on the land.
166. Non-Liability for Accidental Intrusions
Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry
on land in the possession of another or causing a thing or third person to enter the land, does not subject the actor
to liability to the possessor, even though the entry causes harm tot eh possessor or to a thing or third person in
whose security the possessor has a legally protected interest.
a. Desnick v. ABC NO LIABILITY BUSINESS EXCEPTION
i. Business opens its doors to everyone. D entered under false pretense claiming they were
customers, but instead video tapped eye exam procedures. Here, the consent was restricted to
eye exams & thats what they did. Getting the experience of an eye exam is open to pubic/
public knowledge whether there was a camera or not.
ii. Only protects interest trespass seeks to protect.
b. Edwards v. Lee LIABILITY
i. Edwards operated a public exhibition, but Lee felt the cave might extend under his property as
well. Part of land was his so awarded damages.
ii. Owner of realty is entitled to free and unfettered control of his own land above, upon, and
beneath the surface.
c. Smith v. Aircraft LIABILITY
i. D built airport next to P property and flew small airplanes as low as 100 ft. Court ruled this as
trespass if below 500 ft., which was allowed by federal statute to not be considered trespass.
d. Pegg v. Gray LIABILITY
i. P owned a cattle farm and D let his team of fox hunting hounds onto the land after foxes. Cows
destroyed fences bc frightened.
ii. If animals go into anothers land without permission, it is trespass.
e. Malouf v. Dallas Athletic Club NO LIABILITY
i. Golf course where D hit car. No intention since it was to hit the hole #6, was not negligent
either.
Trespass to chattel and conversion are together

Trespas to Chattel

217. Trespass to Chattel (an item of property)

A trespass to chattel may be committed by intentionally
Dispossessing another of the chattel, or
Using or intermeddling with a chattel in the possession of another
218. Liability to Person in Possession
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
He dispossesses the other of the chattel, or
The chattel is impaired as to its condition, quality, or value, or
The possessor is deprived of the use of the chattel for a substantial time, or
Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has
a legally protected interest.

Conversion

Elements:
1) Intent to control chattel Russel-Vaughn Ford, Inc. v. Rouse
a) Factors:
i) Extent and duration of dominion
ii) Actors good faith
2) Interfering right of another
a) Inconvenience and expense
b) Extent and duration of interference
3) Exceptions:
a) Consent from owner
i) Cannot go beyond scope of permission Palmer v. Mayo
(1) Unless goes beyond permission involuntarily,
a. Getting lost etc. Spooner v. Manchester NO LIABILITY
222A. What Constitutes Conversion
Conversion is an intentional exercise of dominion or control over a chattel, which so seriously interferes with the
right of another to control it that the actor may justly be required to pay the other the full value of the chattel.

In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the
following factors are important:
The extent and duration of the actors exercise of dominion or control;
The actors intent to assert a right in fact inconsistent with the others right of control;
The actors good faith;
The extent and duration of the resulting interference with the others right of control;
The harm done to the chattel;
The inconvenience and expense caused to the other.
226. Conversion by Destruction or Alteration
One who intentionally destroys a chattel or so materially alters its physical condition as to change its identity or
character is subject to liability for conversion to another who is in possession of the chattel or entitled to its
immediate possession.
b. Russel-Vaughn Ford, Inc. v. Rouse LIABILITY
i. After not coming to terms with car dealership, dealer would not give back the keys. It is
enough that D refused without legal excuse to deliver chatter to show intent to control.
c. Spooner v. Manchester NO LIABILITY
i. D rented horse for a trip, got lost, and horse went lame. P sued for conversion. If the person
had no intent to go against scope of permission, get lost, or break K then he is not liable.
d. Palmer v. Mayo LIABILITY
i. P rents carriage to D who lends it to a family member who destroys it while drunk. When
contracting/borrowing an item from another, and you use it outside scope of permission, or let
others use it when its not authorized (express or implied) by K, you are liable. Permission
doesnt transfer unless it was agreed upon before consent from D.

Privileges
Elements:
Privileges D can use as a defense
1) Defense of Person and Property
i) D can use force in defending herself after exhausting all alternatives if
ii) Reasonably believes person will inflict bodily harm
iii) Must exercise reasonable care to make sure person is actually about to hit you 63 Crabtree v. Dawson
LIABILITY
iv) Must inflict reasonable force
v) Cannot be deadly force unless:
(1) There is a robbery and there is threat to life Wright v. Haffke NO LIABILITY
vi) Other harms:
(1) Dog protected Property P got injured Woodbridge v. Marks NO LIABILITY
(2) Killed dog to protect livestock
(a) There must be notice to owners of dog doing harm Hull v. Scruggs NO LIABILITY
b) Exceptions
i) Cannot use deadly force to protect property for trespass Katko v. Briney LIABILITY
63. Self Defense by Force not Threatening Death or Seriously Bodily Harm
Actors Duty to Avoid Force: The actor cannot reasonably believe that the use of force is necessary until he has
exhausted all other reasonably safe means of preventing the other from inflicting bodily harm upon him.
Actors Duty to Retreat: The actor, if he reasonably believes that he is threatened with the intentional
imposition of bodily harm, or even of offensive contact, may stand his ground and repel the attack by the use of
reasonable force which does not threaten serious harm or death, even though he might with absolute certainty of
safety avoid the threatened bodily harm or offensive contact by retreating.
76. Defense of Third Person
The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his
interests of personality under the same conditions and by the same means as those under and by which he is
privileged to defend himself if the actor correctly or reasonably believes that
The circumstances are such as to give the third person a privilege of self-defense, and
His intervention is necessary for the protection of the third person.
261. Privilege of Self-Defense or Defense of Third Person
One is privilege to commit an actor which would otherwise e a trespass to or a conversion of a chattel in the
possession of another, for the purpose of defending himself or a third person against the other, under the same
conditions which would afford a privilege to inflict a harm or offensive contact upon the other for the same
purpose.
a. Katko v. Briney LIABILITY P was trespassing and severely injured by trap shotgun placed by D to
protect property. Cannot use force of serious bodily injury or death in mere protection of property.
b. Crabtree v. Dawson LIABILITY for hitting the wrong man in the face with a musket bc believed
coming to attack him-did not exercise reasonable care/judgment to ensure it was the right man and he
was actually at risk. Would have been ok if ensure it was the right man first.

c.
d.

e.
f.

Necessity

Wright v. Haffke NO LIABILITY Robber was shot in the back trying to leave after robbing. Since robber
had a gun, it is reasonable to believe there is imminent risk of bodily harm.
Woodbridge v. Marks NO LIABILITY D kept dogs in a reasonable manner chained on a post that
allowed them to protect the chicken house but not reach residence or hallways. P was badly injured
looking for man. Here, the way the dogs were kept were reasonable and are lawful. Dogs also warn
when strangers are over. Different from Spring gun. If dog kept unreasonably then liable.
Hull v. Scruggs NO LIABILITY THERE MUST BE NOTICE IN ORDER TO BE REASONABLE. Man shooting
Ps dog because kept attacking his property (egg sucking)-had used 3 steps-Reasonable efforts up to
that point and nothing left to do. was also property less valuable than his chickens.
Kershaw v. McKown NO LIABILITY for killing Ps dog because it had been attacking Ds goat.
Reasonable force bc apparent necessity to kill- and value of dog was less than goat so this was
considered.

Private Necessity Elements:

1) One is able to trespass into anothers property if there is a risk of harm to person Rossi v. DelDuca NO LIABILITY
a) Property owner liable if person-seeking necessity is hurt in property. AND
i) Once necessity is over, if person doesnt leave, it is trespass.
b) Property owner has knowledge of imminent harm Texas Midland LIABILITY
i) Property owner has an obligation to let people in under necessity Ploof v. Putman LIABILITY
c) A party acting under private necessity is liable for damages incurred to the property of others when trying to
save his own Vincent v. Lake Erie
d) Exceptions:
i) Homelessness (no imminent risk of harm) London Borough LIABILITY
(1) Public Policy argument: It would open the doors to too many trespassers.

1. Private Necessity
a.
o
b.
c.
d.

Rossi v. DelDuca NO LIABILITY for girl for trespass when she entered Ds yard to escape from dog
attack and was bit by Ds dogs. She was privileged to enter. D was L for and had to pay damages fro
attack.
Texas Midland LIABILITY Railroad Company. Agent of railroad knew there was a reasonable certainty P
wife would get sick and kicked them out anyway. It was not lawful under these circumstances for agent
of the railroad to kick them out and cause her to suffer physical pain.
Ploof v. Putman NO LIABILITY for entering. L for untying boat when P was trying to escape deadly
storm. Permitted to enter private dock to avoid bodily/property injury- P still had to pay for damages to
dock.
Vincent v. Lake Erie NO LIABILITY for trespassing to person using anothers dock to save his boat.
While under private necessity, its reasonable to save the more expensive property. Still L for dock.
London Borough LIABILITY for homeless people squatting in empty home-no privilege of private
necessity because risk of harm not imminent; as well as slippery slope for all homeless cases.

2. Public Necessity

The use of private property by a public official for public reason.

262. Privilege Created by Pubic Necessity
One is privileged to commit an act, which would otherwise be a trespass to a chattel or a conversion if the act is or
is reasonably believed to be necessary for the purpose of avoiding a public disaster.
Elements
For Public Necessity to exist there must be:
1) Imminent risk
a) Must be correct about risk Struve v. Droge LIABILITY
2) Of public harm Mouses Case NO LIABILITY
a) Lives or property
b) Many people/community at large
3) D reduced or eliminated of risk
a) By interfering with/damaging property of other party Surocco v. Geary NO LIABILITY
4) Damages
a) Do not have to pay any damages
5) Exceptions:
a) Eminent Domain
i) Government is liable for compensation of taking of private property (construction
b) Law Enforcement:
i) Law enforcement destroying property to get suspect pays for damages though their municipality.
a. Mouses Case NO LIABILITY for throwing property overboard a ship to prevent it from sinking-act was
necessary to save the lives of all passengers-and no need to pay damages.
b. Surocco v. Geary NO LIABILITY for city ordering house to be destroyed to prevent progression of a
fire-necessity for public safety greater than individual rights, and no recovery for P on damages.

c.

Struve v. Droge LIABILITY for breaking into Ps home to prevent fire, when there was no fire-necessity
did not actually exist (not correct about risk), so no public necessity-Must be held liable and pay for
damages.

Negligence
1. Duty
2. Breach of duty
3. Cause
a. In fact/but for
b. Proximate
4. Damages
Duty: When does a duty to use REASONABLE CARE arise?

A duty to use reasonable care arises when we do anything that a reasonable person in our shoes should know
creates an unreasonable risk of harm to other people.
o Nonfeasance: doing nothing when you did not create the risk of harm = no duty.

Exceptions:

Good Samaritan Rule: if its a public place open to the public during times when it is
open to business then they have a duty in times of an emergency.
7 Duty:
a) An actor ordinarily has a duty to exercise reasonable care when the actors conduct creates a risk of physical
Harm.

1. Affirmative acts

Affirmative Acts: an act that creates a risk of harm.

a) Nonfeasance
i) Doing nothing when you did not create/cause the risk of harm (NO DUTY) Yania v. Bigan: NO
LIABILITY
(1) Exception:
(a) Business Exception (duty to undertake affirmative act to public)/Good Samaritan Doctrine 323
Soldano v. ODaniels LIABILITY
1. Must be at risk to physical harm (emergency) Stangle v. Firemans Fund Insurance
Co.: NO LIABILITY
(b) Common Carrier Exception (duty to public) Globe Malleable Iron & Steel Co. v. New York
Cent. & H.R. R. Co.: Liability
b) Misfeasance (put P in a worse position)
i) Doing something that creates a risk of physical Harm (DUTY) 7
(1) Mere words that creates risk not enough Yania v. Bigan: NO LIABILITY
(2) UNLESS They are children or mentally ill Weirum v. RKO Radio General, Inc.: LIABILITY
a. Yania v. Bigan: NO LIABILITY MAIN EXAMPLE OF NON-FEASENCE.
i. P JUMPED FROM SIDE WALL INTO WATER AND DROWNED
ii. Someone who finds another in a position of peril is under no legal duty to rescue the person,
unless he or she is legally responsible for placing the person in the perilous position.
iii. Additionally, one cannot be liable for mere verbal taunts that cause another injury, unless the
victim is a child or has a mental illness. He did not physically push him.
1. Difference between the above and below cases are that in one the verbal taunting was
to an adult and the Weirum case it was targeted to teens.
b. Weirum v. RKO Radio General, Inc.: LIABILITY MAIN EXAMPLE OF MISFEASANCE
i. L for radio shows promoting contest causing kids to race and Crash-created the risk so gave
rise to duty- misfeasance.
ii. Rule: When using a public platform to invite or encourage the public to engage in reckless
behavior and this behavior is foreseeable and results in harm to a third party results in liability.
iii. It was foreseeable that teenagers in this position would act in haste to win the contest and
disregard highway safety while doing so. The gravity and likelihood of harm in this situation are
great.
c. Globe Malleable Iron & Steel Co. v. New York Cent. & H.R. R. Co.: Liability
i. Trains engineer saw fire, but did not stop. The train came through and blocked the way of an
ambulance. A plant suffered damage as a result.
ii. Train had a general duty to the public/common carrier
d. Soldano v. ODaniels: Liability
i. Bartender refused to let man use phone to call for aid. He was threated and his father was
killed as a result of inaction- no special relationship but there is the

ii.

e.

Good Samaritan doctrine- when risk of emergency/physical harm business must allow use of
phone if in a public portion of business
iii. RULE: if its a public place open to the public during times when it is open to business then
they have a duty in times of an emergency.
Stangle v. Firemans Fund Insurance Co.: NO LIABILITY
i. Building receptionist did not allow p to use phone to report theft- not an emergency/no
physical harm threatened

2. Undertakings

Misfeasance: doing something that creates risk of harm = duty

Undertaking to provide assistance or otherwise voluntarily assume responsibility.
Attempted to aid/voluntary assumed responsibility (DUTY); L if Ocotillo West Joint Venture v. Superior
Court: LIABILITY; ONeil v. Montefore Hospital: LIABILITY
ii) Must exercise reasonable due care US v. Lawter: LIABILITY
iii) L if Harm is suffered due to others reliance upon the undertaking Marsalis v. LaSalle: LIABILITY
iv) L if Leaves person in a worse position than before
a. NL when its Ps own negligence Frank v. US: NO LIABILITY
b.

Hurley v. Eddingfield NO LIABILITY

i. Dr. refused to treat patient for no reason-he was not under a k and there is no duty.
ii. Physicians are not bound to render professional service to every one that applies, even if they
had treated them on previous occasions. Doctor did not put the patient in a worse position.
iii. Reliance had Dr. told family he was coming, he would be compelled to do so.
c. ONeil v. Montefore Hospital: LIABILITY
i. Dr. spoke to ill patient on the phone and advised him to go home and then died- by
undertaking treatment of patient had duty to aid and was negligent. Must act reasonably.
Leaving P is not reasonable.
Undertakings that put Parties in a Worse Position
d. US v. Lawter: LIABILITY
i. Coast Guard allowed inexperienced crewmember to attempt to rescue woman resulting in her
death-once undertook aid, had duty to act reasonably. There was reliance. Put P in a worse
position
e. Frank v. US: NO LIABILITY
i. Coastal Guard did not have the equipment necessary.
ii. The aid was rendered with care so no responsibility for inadequate equipment
iii. Because resources are sometimes scarce and people are in a lot of trouble, the rescue workers
are not required to rescue everyone in a lot of trouble cant create that level of expectation,
too big of burden
iv. If one uses diligent effort and all available means, the rescuer cannot be found liable for harm
f. Ocotillo West Joint Venture v. Superior Court: LIABILITY
i. Man volunteered to care for drunken man then gave him keys to drive. Once undertook duty
had to act reasonably- increased risk of harm.
g. Cuppy v. Bunch: NO LIABILITy
i. Bunch and White spent an afternoon fishing and drinking together. When Bunch woke up, he
said he felt ill, but still drove home when White told him to just follow him. Bunch drove and hit
P. Is White liable?
ii. Rule: There is no duty to control the conduct of a third person unless there is a special
relationship or you take on a duty.
iii. No definitive statement or action suggesting he was taking care no special relationship, so no
duty to care for friend, even though he had an option to do so, didnt undertake assistance of
decedent
h. Marsalis v. LaSalle: LIABILITY
i. P asked D to keep an eye on the cat, and D agreed, but failed to keep the cat confined. The cat
escaped when it was supposed to get checked for rabid. Mrs. Marsalis went to the doctor and
turned out to be extremely allergic to the serum against rabid and suffered injuries.
ii. RULE: One who voluntarily undertakes to care for, or to provide relief or assistance to, an ill,
injured, or helpless person is under a legal obligation to use reasonable care and prudence in
what he does.
iii. voluntarily undertook duty and failed to use reasonable care- she had reliance

3. Special Relationships

Give automatic rise to a duty

i.
Innkeeper and guest
ii.
Captain and Crew
iii.
Common Carrier
iv.
Physician and Patient
v.
Landlord and Tenant
CAPTAIN AND CREW: Duty to rescue or assist others

a. Petition of Trans-Pacific Fishing & Packing Co.: LIABILITY

i. the captain did not search for the three men bc it was dangerous.
ii. special relationship gave rise to duty and failed to use reasonable do care.
iii. Failed and neglected to turn around, failed to maintain the ship in good condition for these
kinds of situations, failed to throw out any sort of lifeline or floating object.
b. Brosnahan v. Western Air Lines LIABILITY
i. Passenger was sitting and another passenger trying to fit a bag overhead compartment above
Ps seat dropped the bag. P is suing for breach of duty of flight attendants to help passengers
who are struggling to accommodate their bags.
ii. Rule: Airlines have a duty to passengers until boarding is completed, and until all passengers
are seated with their carry-on luggage property stowed.
c. Boyette v.Ttrans World Airlines: NO LIABILITY
i. Rutherford drank too much during the flight and stole an electric golf cart. He then was chased
and hid on a chute, but fell too far in and the compactor got activated.
ii. Rule: Airlines duty ends when passengers reach a safe place. Typically, once they get to the
terminal.
d. Charles v. Sigfried NO LIABILITY
i. An adult hosted a party where a 16 year old got drunk was the adult knew she was gonna drive
and permitted it. Teen later got into a car accident and died.
ii. Rule: Hosts do not have a duty of reasonable care for underage drinking. Analysis: drinking
caused the accident,, not the furnishing.
iii. *This is the common law rule, but courts have come to different rules.
DUTIES TO PROTECT OTHERS FROM THIRD PARTIES --> DUTY TO WARN
e. Tarasoff v. Regents of the University of California LIABILITY
i. two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a
psychologist. Failed to warn victim.
ii. Rule: therapist cannot breach client patient confidentiality to warn of the conduct
of another unless there is an identifiable 3rd party who is in bodily injury or threat.
iii. There is a special relationship between Poddar and defendant therapists. The kind of
relationship that arises between patient and his doctor. Such a relationship may support
affirmative duties for the benefit of third persons.
f. Thompson v. County of Alameda NO LIABILITY
i. The county knew that James had indicated he would if released take the life of a young child
residing in the neighborhood. He had given no indication of which, if any, child he intended as
his victim. The county nevertheless released James on temporary leave into his mothers
custody. He murder Ps son.
ii. Rule: No duty of reasonable care to notify when there is no identified third party being harmed.
iii. county releasing juvenile who intended to kill a "neighborhood child"- target was not specific
so no duty to give a general warning
iv. Warning everyone in the neighborhood would be too broad and difficult.
v. PP: might jeopardize rehab efforts. Stigmatizing released offenders. Inhibiting their release.
Specific person not identified.
LANDLORD-TENANT
g. Kline v. 1500 Massachusetts Avenue Corp. LIABILITY
i. apartment complex discontinuing having a door guard when many assaults and robberies
occurred- special relationship of tenant-landlord and failure to use due care with a doorman in
this case due to circumstances
ii. Rule: when there is a relationship of control, there is a duty of care. In Landlord-tenant
relationship, if the landlord has a reasonable belief that crimes will occur, and has exclusive
power to take preventive action, it has a duty to take preventive steps to minimize the
predictable risk to tenants.
iii. Landlord is best equipped to guard against the predictable risk of intruders, and is in the best
position to take preventive measures. The landlord is also more likely to know when there are
robberies etc. cost ineffective to have each tenant assume risk.
DOCTOR-PATIENT
h. Bradshaw v. Daniel LIABILITY
i. RULE: There is a duty to warn of danger of contagious diseases when there is foreseeable risk
of harm (by a reasonable person standard) to an identified third party.
ii. Ps dad died of Rocky Mountain Spotted Fever, and later, his mother died as well. Her son sued
Daniel, the doctor for failing to warn the mother of the risk that she might have the disease.
iii. special relationship from Dr. to patient so gives rise to duty to warn third party
i. Hawkins v. Pizarro NO LIABILITY
i. P took a blood test for Hepatitis C and doctor incorrectly told her she had tested negative. Her
new husband contacted the disease. P sued D claiming that if she had known she would have
taken precautions to avoid infecting husband.
ii. RULE There is no duty to warn of danger of a contagious disease when there is no foreseeable
risk of harm to an identified 3rd party.

10

PUBLIC DUTY DOCTRINE

c) Public Duty Doctrine: Forbids lawsuits against the government without its permission.
i) No duty to the individual ONLY public at large
ii) Exceptions: must establish relationship.
(1) Government must undertake duty to put someone in worse position
Collaborating with police
j. Riss v. City of New York NO LIABILITY for police when P called asking for protection and failed to
protect. PP: no duty to an individual or several, only to the public at large & must allocate resources.
k. Schuster v. City of New York LIABILITY for government when failed to protect P who collaborated
info. The public (city) owes a duty to use reasonable care for the protection of persons who have
collaborated with it in the arrest or prosecution of criminals, once it reasonably appears that they are
in danger due to their collaboration. PP: must encourage public to help police. P was worse off.

4. Occupation of land

TRESPASSERS
333. General Rule
i) Except as stated in 334-339, a possessor of land is not liable to trespassers for physical harm caused by
his failure to exercise reasonable care
(1) To put land in a condition reasonably safe for their reception, or
(2) To carry on his activities so as not to endanger them.
334. Activities Highly Dangerous to Constant Trespassers on Limited Area
i) A possessor of land who knows, or from facts within his knowledge should know, that trespassers
constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them
by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care
for their safety.
337. Artificial Conditions Highly Dangerous to Known Trespassers
ii) A possessor of land who maintains on the land an artificial condition which involves a risk of death or
serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to
trespassers by his failure to exercise reasonable care to warn them of the condition if
(1) The possessor knows or has reason to know of their presence in dangerous proximity to the condition,
AND
(2) The condition is of such a nature that he has reason to believe that the trespasser will not discover it or
realize the risk.
339. Artificial Conditions Highly Dangerous to Trespassing Children
i) A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an
artificial condition upon the land if
(1) The place where the condition exists is one upon which the possessor knows or has reason to know
that children are likely to trespass, and
(2) The condition is one of which the possessor knows or has reason to know and which he realizes or
should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(3) The children because of their youth do not discover the condition or realize the risk involved in
intermeddling with it or in coming within the area made dangerous by it, and
(4) The utility to 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
(5) The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the
children.
Elements:
1) A possessor of land has a duty to exercise reasonable care if 333 Haskins v. Grybko NO LIABILITY
i) Has reason to know/should know (based on facts) trespassers are constant 334 AND Herrick v. Wixom
LIABILITY
ii) Maintains a highly dangerous artificial condition in property that puts 337
(1) Risk of death or bodily harm
(2) MUST PROVIDE NOTICE-in order for NL (reasonable care to warn if)
(a) Trespasser will not realize the risk &
(b) Owner has reason to know of trespassers Cleveland Electric Illuminating Co. v. Van
Benshoten NO LIABILITY
iii) Has reason to know/knows children are likely to trespass bc of condition attracts children 339 AND
(1) Has reason to know/knows there is risk of death or bodily harm AND Keffe v. Milwaukee & St. Paul
R. Co. LIABILITY
(2) Children dont realize the risk
(3) Risk is minimal Ryan v. Towar NO LIABILITY
(4) Fails to exercise care
a. Haskins v. Grybko NO LIABILITY for possessor of land because didnt have reason to know of
trespasser. Thought it was a woodchuck. Shooting was unintentional.

11

b. Herrick v. Wixom LIABILITY for possessor of land (circus) when audience member without a ticket
was struck in the eye with a firework-was a discovered trespasser so gave rise to duty of ordinary care.
Circus attracts people. Reason to know. Also there are all sorts of risk at circus. Must use care.
c. Cleveland Electric Illuminating Co. v. Van Benshoten NO LIABILITY for possessor of land when
trespasser lit a cigarette that caused explosion at a construction site (building above manhole ppl used
as restroom). Did not have reason to believe of trespassers=no duty. Failed to warn not necessary.
d. Keffe v. Milwaukee & St. Paul R. Co. LIABILITY for possessor of land because left a turntable
unfenced. Was near Ps home and knew kids that dont know of the dangers they face would play on it.
Bound to use care to protect kids.
e. Ryan v. Towar NO LIABILITY for possessor of land because pump house with a water wheel was not an
attractive nuisance (was not visible). Children created a hole and entered. Did not know = no duty.
LICENSEES
330. Licensee Defined
A licensee is a person who is privileged to enter or remain on land only by virtue of the possessors consent.
341. Activities Dangerous to Licensees
A possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to
carry on his activities with reasonable care for their safety if, but only if
i) He should expect that they will not discover or realize the danger, AND
ii) They do not know or have reason to know of the possessors activities and the risk involved.
342. Dangerous Conditions known to Possessor
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but
only if,
i) The possessor knows or has reason to know of the condition AND
(1) Should realize that it involves an unreasonable risk of harm to such licensees, AND
(2) Should expect that they will not discover or realize the danger, AND
ii) He fails to exercise reasonable care to make the condition safe, OR warn the licensees of the condition and
the risk involved AND
iii) The licensees do not know or have reason to know of the condition and the risk involved.
Elements
1) A possessor of land is subject to liability by failure to exercise reasonable care 341 if
a) Knows there is an unreasonable risk of harm 342 Davies v. McDowell National Bank NO LIABILITY
b) Licensee will not discover or realize danger
c) Fails to exercise care Lordi v. Spiotta LIABILITY
i) Make condition safe or
ii) Warn of risk involved
a. Davies v. McDowell National Bank NO LIABILITY for property owner whose guests died of carbon
monoxide leak-they were social guests (licensees) so he only had duty to warn if he had knowledgewhich he did not
b. Lordi v. Spiotta LIABILITY for D when forgot to turn off water heater and child staying in home lit it
and it exploded-licensee and D knew of dangerous condition-so duty and did not exercise care to run
off.
INVITEES
332. Invitee Defined
i) An invitee is either a public invitee or a business visitor
ii) A pubic invitee is a person who is invited to enter or remain on land as a member of the pubic for a
purpose, which the land is held open to the public.
iii) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly
connected with business dealings with the possessor of the land.
(1) Scope is limited to
(a) Only the area he/she is invited AND/OR
(b) Activity allowed
341. Activities Dangerous to Invitees
A possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to carry
on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover
or realize the danger, or will fail to protect themselves against it.
343. Dangerous Conditions known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if,
but only if, he
i) Knows or by exercise of reasonable care would discover the condition, and should realize tat it involves an
unreasonable risk of harm to such invitees and
ii) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it,
and
iii) Fails to exercise reasonable care to protect them against the danger.
Elements
1) Is trespasser an invitee? 332
a) Public Invitee
i) Person who is invited to enter

12

(1) For a purpose the land is open for

(a) Scope is limited to
(i) Area he/she is invited AND/OR
(ii) Activity allowed
b) Business visitor
i) Person who is invited to enter
(1) For purpose connected with business dealings
(a) Scope is limited to
(i) Area he/she is invited AND/OR
(ii) Activity allowed
2) A possessor of land is liable if failed to use reasonable care for invitees safety when 341 & 343
a) Knows or has reason to know of unreasonable risk of harm Jacobsma v. Goldbergs Fashion Forum
LIABIITY
b) Should expect invitee will not discover danger
c) Fails to exercise care to protect against danger Rowland v. Christian LIABILITY
a. City of Boca Raton v. Mattef NO LIABILITY when man painting sign for city fell to death due to faulty
ladder bc contract was not signed he was a licensee, and no knowledge of danger by city so no duty.
b. Jacobsma v. Goldbergs Fashion Forum LIABIITY for business owner when shopper was injured by a
thief-shopper was an invitee and owner knew of risk of theft due to previous attempts-duty to control
third party.
c. Rowland v. Christian LIABILITY for property owner. Was aware that the faucet handle was defective
and dangerous, that the defect was not obvious, and that P was about to come in contact with the
defective condition, and under the undisputed facts she neither remedied the condition nor warned P
of it. Did not use reasonable care.
d. Carter v. Kinney NO LIABILITY for property owner. P was not an invitee just because invited to a bible
study.

5. The Privity Limitation

1) Ds do not have a duty of reasonable care to 3rd parties UNLESS

a) Promised to answer to 3rd party OR
b) It is foreseeable
c)

Factors when D is liable to a 3rd person no in privity:

i)

Extent to which the transaction was intended to affect P

ii) The foreseeability of harm to him

iii) The degree of certainty that P suffered injury
iv) The closeness of the connection btw Ds conduct and injury suffered
v)

The moral blame attached to Ds conduct

vi) The policy of preventing future harm

a. H. R. Moch Co. v. Rensselaer Water Co. NO LIABILITY for breach of contract to the city when 3rd
parties sued (the public). No identifiable third party that would be harmed.
b. Biakanja v. Irving LIABILITY for failing to act with reasonable care when executing a will where 3 rd
party (daughter) was harmed. It was foreseeable that she would be harmed if D did not act with care.

6. Negligence Per Se

Elements
Negligence Per Se: Liability as a matter of law: p. 170
1) The failure to exercise due care is presumed if:
a) He violated a statute, ordinance, or regulation of a public entity; Martin v. Herzog p. 171
b) The violation proximately caused death or injury to person or property; Brown v. Shyne NO LIABILITY
p. 1182
c) The statute or ordinance was designed to prevent such death or injury resulted from the occurrence.
Tingle v. Chicago NO LIABILITY p. 175
d) The person suffering the death or injury was one of the class of persons for whose protection the
statute, ordinance, or regulation was adopted.

13

a. Martin v. Herzog NO LIABILITY for driver who hit buggy-buggy was contributory negligent bc did not
have lights on which is against the law-purpose of law is safety/to prevent accident-and lack of lights
was cause of accident.
b. Tingle v. Chicago NO LIABILITY for Train Company who violated the law when it ran the train on a
Sunday. The purpose of the law was for religious purposes not to avoid harm. No negligence per se.
c. Brown v. Shyne NO LIABILITY for chiropractor who infected harm during treatment and had expired
license-lack of license was not cause of harm. The negligent treatment was!!! The violation of law was
not the proximate cause of injury.

Breach of Duty: when there is a failure to use reasonable care

1. Reasonable person p. 121
283. Conduct of a Reasonable Man; the Standard
Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a
reasonable man under like circumstances.
298. Necessity that the actor employ competence available.
The actor must utilize with reasonable attention and caution not only those qualities and facilities which as a
reasonable man he is required to have, but also those superior qualities and facilities which he himself has.
289. Inferior Qualities
a) If the actor is a child, allowance is made for his inferior qualities of mind and body, and the standard becomes
that of a reasonable man with such qualities. If the actor is ill or otherwise physically disabled, allowance is
made for such disability.
b) Except in such cases, the actor is held to the standard of a reasonable man as to his attention, perception,
memory, knowledge of pertinent matters, intelligence, judgment, even though he does not in fact have the
qualities of a reasonable man.
c) The individual who is habitually wool-gathering and inattentive, absent-minded, forgetful, ignorant or
inexperienced, slow-witted, stupid, or a fool, must conform to the standards of the society in which he lives, or
if he cannot conform to them must ti make good on damage he does.
Elements:
When there is a duty, the standard of care is of the reasonable person under like circumstances if you breach, then
L
1) General objective standard= act as a reasonable person of ordinary prudence under like circumstances
283 Friedman v. State LIABILITY
i) Physical Disabilities
(1) To act as a reasonable person to avoid danger as a blind/deaf person Kerr v. Connecticut Co. NO
LIABILITY, Davis v. Feinstein LIABILITY
ii) Age of Children
(1) Minor held to adult standard of care if engaging in activity that is
(a) Inherently dangerous (risk to public and/or individual) AND
(b) If kids usually dont engage in that activity
(2) Motor vehicle: adult standard bc no noticeable age therefore no notice of dangers of minor driving.
Dellwo v. Pearson LIABILITY
(3) Heavy farm machines: inherently dangerous and usually performed by adults
iii) Superior Qualities (physical strength, profession- doctors) 298 Fredericks v. Castora NO LIABILITY
(1) Standard of care to that of a person with the same strength/superior qualities.
iv) Mental Disabilities Lynch v. Rosenthal
b) Not considered in application of reasonable person standard
i) Insanity
(1) UNLESS the insanity was a direct cause of efforts to prevent damage or neg behavior Williams v.
Hays NO LIABILITY
ii) Intoxication
iii) Low Intelligence
(1) slow individuals must make up for their inattention by trying harder or paying damages 283
Vaughan v. Menlove LIBILITY
2) Language Barrier
Mental ability and mental States
a. Williams v. Hays NO LIABILITY for ship captain when he became mentally and physically incompetent
trying to save the ship because under his circumstances of being sick he did all he could to save the
ship.
b. Vaughan v. Menlove LIBILITY for unintelligent man causing fire-still held to a reasonable standard of
general society. No defense.
c. Lynch v. Rosenthal LIABILITY for failure to warn mentally retarded man of danger of corn picker. Jury
must determine whether P was contributively negligent based on mental defect.
d. Friedman v. State LIABILITY for resort for Ski lift stopping and Jewish girl jumping bc of her religious
beliefs-age and religion taken into account to determine she was not contributory negligent.
Physical Infirmities

14

a. Kerr v. Connecticut Co. NO LIABILITY for trolley company where blind man was hit-bc blind man was
contributory negligent by not using care, taking precautions of reasonable person with defect.
Someone with a physical infirmity must take account of their physical infirmity to extent that they can.
b. Davis v. Feinstein LIABILITY for storefront with open cellar door on the ground that blind man fell in-P
was using reasonable care with can and not expected to discover everything seeing man would.
c. Roberts v. Ring LIABILITY for 77 yr old man who ran over a child bc his vision was poor-old age. Did
not behave in a reasonable person standard under the circumstances of his disability. Should have
refrained from driving.
Special Talents
a. Fredericks v. Castora NO LIABILITY for truck drivers in car wreck-not held to a higher standard than
typical drivers due to their experience-would be too difficult to apply to all driving.
Age
b. Purtle v. Shelton NO LIABILITY for 16-year-old shooting friend while deer hunting-court said hunting
was not an adult activity-so held to child standard.
c. Dellwo v. Pearson LIABILITY for 12 years old who ran over with powerboat Ps fishing line causing
injuries to eye. Children held to the same standard when motor vehicle bc hard for people to tell
whether adult or child driving. Doesnt give notice.
d. Dunn v. Teti NO LIABILITY for 6-year-old child swinging stick and hitting another child. Children under
7 incapable of negligent acts (under 14 usually).

2. Risk and Precautions p.140

1) Precautions/Hand Formula: 3
a) Was D reasonable under the circumstances?
b) Is an alternative reasonable under the circumstances?
c) If Burden is greater than it is unreasonable
d) Factors to consider:
(1) Social usefulness of activity
(a) Is Ds activity beneficial to society so that we dont want to discourage it by imposing costs?
ii) B<PL
(1) B = Burden or cost to defendant and society
(2) P = Probability that harm will result. Foreseeability of harm.
(1) L=lossthatwouldresultifaccidentoccurred(painsuffering,propertydamages) Foreseeability of the severity of the
harm
(3) Must take all precautions, then if there is no foreseeability of danger, not liable. Adams v. Bullock NO
LIABILITY p. 145
(4) Saving a life is not negligence Eckert v. Long Island R. Co. LIABILITY
(a) Compliance errors: burden is slow, but high over a long period of time.
a. United States v. Carroll Towing Co. LIABILITY for bargee not being on board ship when broke away
and cargo sunk.
i. B(hiring bargee)<P(that ship would break away) x L(lost cargo)=L
b. Adams v. Bullock NO LIABILITY for Trolley Company when boy got injured for swinging wire near it. If
D takes all precautions, & there is no foreseeability of danger, not liable. Had an 8 feet fence.
i. B(large protective fence)>P(probability of an accident of this type-very low) x L(injury)
c. Bolton v. Stone NO LIABILITY for Cricket Ground when lady got hit with ball. Same reasoning as
Adams above. p. 146
i. What you risk cannot be more than whats at stake
d. Eckert v. Long Island R. Co. LIABILITY for railroad for not sounding whistle, causing man to have to
jump out to save young child from train-and P not contributory negligent because morally sound
i. B (sound whistle)<P(accident on tracks) x L(human life)
ii. B (running to rescue)<P(accident on tracks) x L(life of rescuer)
iii. Posners argument where D liable bc they would have hired someone so save the child.
e. In The Margharita NO LIABILITY for ship captain not turning around and seeking aid for injured
seaman because captain did not know how the area and possibly put everyone at risk.
i. B (detour-high going off course, taking extra time, danger of detour, risk to the rest of the
boat)>P (low: already lost his leg)x(L: pain high).
3. Custom p. 158
Elements:
i) General rule in negligence is the ordinary usage of customs in the industry. Ellis v. Louisville &
Nashville Ry. NO LIABILITY p.160
(1) Custom is often an indication of what is reasonable The T.J. Hooper LIABILITY p.158
(2) Exceptions to ordinary usage:
(a) When its unreasonable not to take precaution
(b) When its highly dangerous to life MacDougall v. Pennsylvania Power and Light Co. LIABILITY

15

(3)

(4)
a.

b.
c.

d.

e.

f.

g.
h.

(c) Contract btw two companies to protect interest of 3rd parties Rodi Yachts, Inc. v. National
Marine, Inc. LIABILITY p.162
Medical Malpractice:
(a) In order to determine whether D has breached duty to exercise reasonable care look at
(b) Modified Locality Rule similar communities standard:
(i) whetherdochasexercisedthedegreeofcareandskillofaveragequalifiedpractitioner.& Brune v. Belinkoff
LIABILITY p.165
(ii) in similar localities= geographical location, size, and character of the community. Gambill v.
Stroud NO LIABILITY p.166
1. Availabilityofresourcesinthoselocalitieslikeeducation,moderntechnology,travel,&communication.
Operation of medical Facilities & Legal malpractice Cook v. IrionNL, Johnson v. Wills Memorial
Hospital & Nursing Home NL
(a) Locality Rule: based on the custom of locality
The T.J. Hooper LIABILITY when tugboats were lost in a storm because they did not carry radio
equipment. It was not the standard in the industry, but relatively inexpensive to have them.
Unreasonable not to take the precaution.
i. Rule: custom is often an indication of what is reasonable, but it is never its own measure.
Courts in the end must then say what is required.
Ellis v. Louisville & Nashville Ry. NO LIABILITY for employer failing to supply employee with
protective mask for breathing dust- was general practice of railways ot to furnish masks.
MacDougall v. Pennsylvania Power and Light Co. LIABILITY for Power Company placing fuse box
on certain location on roof that electrocuted P.
i. The test for negligence is the ordinary usage of mankind, except when it is dangerous to life
recognized by all intelligent persons. There must be adequate warning given of its dangerous
character.
Rodi Yachts, Inc. v. National Marine, Inc. LIABILITY for both P & D because they were in a contract.
One of keeping the barge at a dock. Both should have come to an agreement.
i. When both parties have a common interest, and the relationship is like a contract, then there
should be given special weight/meeting of the minds of the expectations. Both have to protect
the interests of third parties and customers. Customary to come to an agreement.
Brune v. Belinkoff LIABILITY when doctor in a small city administered too much anesthetic that led to
injury.
i. Whether a physician has exercised the degree of care an skill of the average qualified
practitioner, taking into account the advances in the profession.
Gambill v. Stroud NO LIABILITY for doctor when operation was aborted due to complications causing
injuries
i. Persons engaged in a similar practice in similar localities, giving consideration to geographical
location, size, and character of the community.
Johnson v. Wills Memorial Hospital & Nursing Home NL for patient escaping mental health
facility- custom applied bc med facilities- monitoring and care being similar to comparable hospitals in
that community
Cook v. IrionNL for lawyer in El Paso not suing all three options when client slipped and fell on
sidewalk- custom applied since knowledge of local legal practice changes approach- and was
reasonable here

4. Res Ipsa Loquitor the thing speaks for itself

17. Res Ipsa Loquitor
The factfinder may infer that the defendant has been negligent when the accident causing the Ps physical harm is
a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant
is the relevant member.
Elements
a) Breach of duty may be determined from all facts and surrounding circumstances
i) Was there an accident?
ii) Must be at Ds exclusive control of the instrumentality Larson v. St. Francis Hotel NO LIABILITY
iii) Would have not occurred if D used ordinary care (behaved reasonably) Larson v. St. Francis Hotel NO
LIABILITY; Connolly v. Nicollet Hotel LIABILITY
iv) Causes of Ps injury are eliminated other than Ds negligence Walston v. Lambertsen NO LIABILITY
v) Can be brought if there are multiple parties
a. Byrne v. Boadle Negligent LIABILITY when P driving in front of Ds premises a barrel of flour falls on
him. Nobody could testify as to how it happened. The most likely reason is that negligence is the
person in control of the premises. P. 192
b. Larson v. St. Francis Hotel NO LIABILITY when there was a party at a hotel and someone threw a
chair that landed on P. D must have exclusive control to be liable and the guests have partial control. It
was not foreseeable and couldnt have been prevented with ordinary care. P. 195

16

c.
d.
e.
f.
g.
h.

i.
j.

Connolly v. Nicollet Hotel LIABILITY for hotel when P was struck with mud from hotel party w/live
animal and free booze. Did not take reasonable precautions and was their cause (free liquor for all
activities). P. 196
Brauner v. Peterson NO LIABILITY for Ds cow wandering onto highway and striking P while drivinganimal at large does not warrant application of RIL (possibly SL). Even if confined cow can escape.
Guthrie v. Powell LIABILITY when steer (animal) fell on Ps head at county fair- was cause in fact and
inference of negligence- no other way could have happened. Steer shouldnt have been on second
floor. Had duty to inspect(invitee) and use ordinary care.
Wilson v. Stillwill NO LIABILITY for surgeon when D had operated on P and later became infected in
the arm. Could have been other causesso. Low chance of infection from hospital negligence P. 198
Judson v. Giant Powder Co. LIABILITY for factory exploding-explosion alone shows lack of reasonable
care to be taken based on all circumstances-no other cause (SL?)
Haasman v. Pacific Alaska Air Express LIABILITY for vanishing plane for Ps decedents-was equality
of ignorance, which calls for application of RIL. ReasonforresipsaiswethinkDhasknowledgePdoesnt.When
thereisanequalityofknowledgethenyoucantshifttheburdentoD.Butiftheresanequalityofignoranceyoucanstillshift
theburdentoD.
Walston v. Lambertsen NO LIABILITY for sinking ship-sea itself has many hazards outside of
negligence that could have been the intervening cause of sinking (natural causes, storms, etc.)
Ybarra v. Spangard LIABILITY for doctors and nurses who treated P in surgery for appendicitis while
unconscious, and he awoke with arm pain resulting in loss of function-Ds had full control and
knowledge of what had happened (P unconscious) couldnt have been something else. P. 208

Causation: Must show actual and proximate cause

1. But-for/Cause in Fact

Elements:
a) But for Ds negligence P would not have been harmed
b) An act or omission to act is the cause in fact of an injury.
i) Medical practice:
(1) Objective standard: would the reasonable person have consented? Bernard v. Char LIABILITY
(2) Subjective Standard: would this particular P have consented
(a) Plastic surgery Zalazar v. Vercimak LIABILITY
ii) Loss of Chance doctrine: A reduced chance of survival is an actual harm. Herskovits v. Group Health
Cooperative of Puget Sound LIABILITY p. 317
(1) Calculation: HYPO
(a) Survival= before malpractice 30% after malpractice 10%
(b) Chance of death= 70% 90% = 20% increase of chance of death by virtue of negligence.
(2) Even with less than 50% chance of death by virtue of negligence P can recover.
c) Alternative liability:
i) If multiple Ds who are equally probable to have caused harm, but cannot be proven exactly who-both L
d) Market Share Liability:
i) Businesses each pay damage of percent of market held for damaging product when cannot be determined
who exactly manufactured it.
e) Joint and Several Liability:
i) If multiple Ds acting in concert and unable to allocate damages-can all be held equally L for entire harm.
f) Several Liability:
i) If allocation of damages determinable, each D held L for portion of damage they cause.
a. New York Central R.R. v. Grimstad NO LIABILITY for ship not having a lifeline for women to throw to
her husband. But for Ds omission (neg in not having buoys) the downing would not have occurred. The
proximate cause was his falling in; there was nothing to show if there was life saving equipment he
would have lived.
b. Gardner v. National Bulk Carriers, Inc. LIABILITY for ship captain not stopping to search for missing
crew member-statutory duty to him plus is known that seamen can survive for several hrs in waterfailure to rescue was cause in fact.
c. Stacy v. Knickerbocker Ice Co. NO LIABILITY for ice company failing to put fence/equipment around
ice when horses got scared and fell in-not negligence per se not the intent of the law (was to save
humans not horses) plus no but-for causation-even if precautions have been taken, horses still would
have drowned (knocked down fence, etc)
d. Haft v. Lone Palm Hotel LIABILITY for lack of lifeguard and sign at hotel pool where Ps drowned-both
negligence per se (was a law requiring precautions) and but-for causation-hotel could not prove that it
was not their fault had they had a sign, P would not have swam/drowned.
e. Bernard v. Char LIABILITY for dentist leaving holes in Ps mouth. But for the omission of warning that
there were going to be holes, P would not have consented. Court also said it was a reasonable person
standard
f. Zalazar v. Vercimak LIABILITY for plastic surgeon who did not inform patient that procedure could
lead to permanent facial damage. Subjective standard for aesthetic surgeries etc.

17

g. Herskovits v. Group Health Cooperative of Puget Sound LIABILITY partial liability for delayed
lung cancer diagnosis that could have prolonged Ps life-loss of chance doctrine- reduced chance of
survival (from 39% to 25%).
Alternative Liability
h. Summers v. Tice LIABILITY for two hunters who both fired shots and someone hit P-alternative L
theory bc both negligent and equally likely to cause of harm; burden of proof would be on each to
show he did not cause harm, and could not do so.
i. Kingston v. Chicago & N.W. LIABILITY for railroad that started a fire burning Ps lumberyard. Pay the
entire damage even though there was another fire coming from the other side whose origin was
unknown.
a. UNLESSDcanprovefirewouldhavecompletelymissedthetargetorotherwasnaturallycaused
b. CAVEAT:theothercausemustalsobemanmade.IfDcanproveotherfirewasnaturally
occurring,(andtheycouldproveit,andprovethatthefirewouldhavecausedtheexactsame
damage)NL
Market Share Liability
j. Sindell v. Abbott Laboratories LIABILITY partial L for manufacturers of drug that Ps mother took
while pregnant, causing P to develop health issues down the line-bc unable to prove exactly who made
it, instead of Summers rule of Alt L applied Market share L- where all Ds L (liable for percentage of
their market share) since same formula unless prove they definitely did not make it.
k. Sanderson v. International Flavors and Fragrances, Inc. NO LIABILITY for manufacturers of 7 of
Ps cologne that caused her brain damage because P was not injured by a fungible product made by
many different manufacturers and because P has not joined a substantial share of the market she cant
hold any one manufacturer liable.
l. Smith v. Cutter Biological, Inc. for hospital when supplied blood from to P that gave her aids.

2. Proximare Cause
29. Limitations on Liability for Tortious Conduct
An actors liability is limited to those physical harms that result from the risks that made the actors conduct
tortious.
457. Additional Harm Resulting from Efforts to Mitigate Harm Caused by Negligence
If the negligent actor is liable for anothers bodily injury, he is also subject to liability for any additional bodily harm
resulting from normal efforts of their persons in rendering aid which the others injury reasonably requires,
irrespective of whether such acts are done in a proper or a negligent manner.
460. Subsequent Accidents Due to Impaired Physical Condition Caused by Negligence
Ifthenegligentactorisliableforaninjurywhichimpairsthephysicalconditionofanothersbody,theactorisalsoliableforharmsustainedina
subsequentaccidentwhichwouldnothaveoccurredhadtheothersconditionnotbeenimpaired,andwhichisanormalconsequenceofsuch
impairment
448. Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actors Negligence.
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another
resulting therefore, although the actors negligent conduct created a situation which afforded an opportunity to the
theird person to commit such a tort or crim, unles the actor att he time of his negligent conduct realized or should
have realized the likelihood that such a situation might be created, and that a third person might avail himself of
the opportunity to commit such a tort or crime.
Elements
a) Liable only for the foreseeable (direct) consequences of Ds negligence29 Wagon Mound; Doughty v. Turner
NO LIABILITY DiPonzio v. Riordan NO LIABILITY
i) Unforseeability of the exact harm or extent of loss will not limit liability as long as its within the same
force. Petition of Kinsman Transit Co. LIABILITY
(1) Eggshell Doctrine: The exact sequence of events may not be foreseeable. Defendant takes P as he
finds her.
(a) Ex: Jack trips Bruno over. Bruno has a bone disease and instead of suffering minor injuries, Jack
brakes all of Brunos bones. Colonial Inn Motor Lodge v. Gay LIABILITY
b) Liable when 3rd persons render aid for injuries caused by same forces. 457 Pridhman v. Cash and Carry
Building Center LIABILITY, Widlowski v. Durkee Foods LIABILITY
i) Irrespective whether act of aid was done properly or negligently.
(1) Not responsible for extraordinary harm outside of risk he took. Ex-if a nurse gave P a lethal shot P
c) Liable when the same force impairs P making him susceptible to other accidents. 460
d) CardozosargumentNegligenceisrelational
(1) Limitedtothosewhomightforeseeablybeharmed(lookatlocationofP)
(2) NotenoughthatsomeoneelsemightbeabletocollectagainstD
(3) YOUmustbeindangerzone
(4) Dutyviolatedmustbeadutytoyou
(a) Exceptwhenitisforeseeablethatsomeonewouldhavecometotherescueoftheinjuredvictim. Wagner v.
International Ry. Co. LIABILITY

18

(i) Cannot be wanton or reckless

e) Exceptions
i) Intervening Cause
(1) Whether the intervening act by the third party is not reasonably foreseeable and as a result cuts off
the defendants liability.
(a) Liable for foreseeable (by D) the criminal acts of 3rd parties 448 Brauer v. N.Y. Central & H.R.R.
Co LIABILITY still PC
(b) Unforeseeable criminal act becomes an intervening cause Watson v. Kentucky & Indiana
Bridge R.R. NO LIABILITY
(2) Acts of 3rd parties that are involuntary, subconscious, is not a superseding cause that cuts off liability
Scott v. Shrepherd LIABILITY
a. In re polemis OVERRULLED. L for ship that leaked gasoline and caused chain of events-under this rule
D is L for all damaged caused, since direct cause, not just what was reasonably foreseeable.
b. Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Co., Ltd. NO LIABILITY for some
damages caused by ship when oil spilled (explosion, fire). The fire was not the direct result of Ds acts.
Therefore not reasonably foreseeable result of their negligence.
c. Petition of Kinsman Transit Co. LIABILITY for docked ship coming loose and causing ice to hit
another ship, then bridge towers which fell, hit dam and caused flood bc harms that occurred were of
the same nature that are expected to be caused by this type of breach (not mooring properly).
d. Doughty v. Turner NO LIABILITY for factory worker dropping lid into cyanite. It was foreseeable from
the physical force of D that dropping lid would cause a splash. The injuries from P were not from the
splash, but from the chemical reaction. The chemical reaction caused it, not splash. Not the direct
consequence of Ds actions.
e. Colonial Inn Motor Lodge v. Gay LIABILITY for man backing into heating unit, severing gas line and
causing an explosion. Once D brings about harm, becomes responsible for total extent o it- no matter if
reasonably foreseeable or not, still PC. Harm caused within the same forces.
f. DiPonzio v. Riordan NO LIABILITY for man leaving car running at gas station, car changed gears and
ran into P breaking his leg. Not the intent of the car running rule-was to prevent foreseeable
explosions, not this type of injury. Leaving car running was not PC of injury.
g. Central of Georgia Ry. V. Price NO LIABILITY for bus driver that due to his negligence of missing Ps
stop, she was left without anywhere to go. He made it right by taking her to a hotel. Her injuries of
lamp at hotel burning her were not the direct cause of Ds negligence (missing a stop). This occurrence
could not have been foreseen by D.
h. Pridhman v. Cash and Carry Building Center LIABILITY for worker who negligently tied ropes that
injured P, who then died on the way to the hospital when his driver had a heart attack-when D liable
for the same forces that caused injury, then he becomes L for any additional bodily harm resulting
from normal efforts of third persons rendering aid. Foreseeable that someone will render aid.

3. Intervening Cause

a. Brauer v. N.Y. Central & H.R.R. Co LIABILITY for train colliding with wagon and resulting in thieves
stealing goods when overturned. Foreseeable that thiefs were going to rob because it was a big city.
Put p in a vulnerable situation. Also had guards-evidence of foreseeability. Still Proximate Cause.
b. Watson v. Kentucky & Indiana Bridge R.R. NO LIABILITY for railroad when spilled gasoline caused
an explosion IF man who threw a match did it maliciously/purposely-not reasonably foreseeable.
Intervening Cause. Liability if he did it by accident, such as trying to light a cigar. Foreseeable a
passenger would do this.
c. Village of Carterville v. Cook LIABILITY for city that had sidewalk with no railing-P was jostled by
pedestrian, fell and injured-this was reasonably foreseeable result on a crowded sidewalk-person NOT
INTERVENING CAUSE.
d. Alexander v. Town of New Castle NO LIABILITY for P falling into hole city had left on sidewalk
through trying to detain another man who threw him in-other man was unforeseeable, INTERVENING
CAUSE.
e. Scott v. Shrepherd LIABILITY for D when threw into a crowd a firecracker. Innocent individuals tossing
the firecracker away not liable because it is a subconscious response and involuntary trying to protect
themselves. Also foreseeable tat 3rd parties will do this. Still PC.
f. Roman Prince NO LIABILITY for ship when negligently struck other ship-woman had an opportunity to
escape by boarding another ship-chose not to then a half hour later tried and stumbled-her act of
choosing not to get off right away precluded L bc not reasonably foreseeable-natural inclination would
be to get off right away-her decision was INTERVENING CAUSE.
g. Thompson v. White LIABILITY for gas station that placed waving clowns on the side of the road as
advertisement and caused distraction that caused car accident-driver was not a free agent and under
the influence of the clowns. His own negligence in wreck. Was foreseeable that drivers would get
distracted. NOT INTERVENING CAUSE.
h. Palsgraf v. Long Island R.R. Co. NO LIABILITY for train when guard knocked package from boarders
hand that exploded, causing a scale to fall and hit P. Harm was too remote-she was not a foreseen

19

agent to be harmed. Only harm to property when fell. Foreseeable that it would damage package not
that there would be explosives. No Proximate cause
i. Negligenceisrelational
1. Limitedtothosewhomightforeseeablybeharmed(lookatlocationofP)
2. NotenoughthatsomeoneelsemightbeabletocollectagainstD
3. YOUmustbeindangerzone
4. Dutyviolatedmustbeadutytoyou
i. Edwards v. Honeywell NO LIABILITY for Fire-alarm Company when operator called the wrong fire
department. Took too long and house was already burned out. Firefighter died when stepped in. The
firefighter was not a foreseeable 3rd party. It is also unforeseeable to estimate the amount of time it
takes for a fire to burn the house and then make sure the firefighters get there on time. Injury outside
the zone of danger.
j. Widlowski v. Durkee Foods NO LIABILITY for company they failed to provide mask that contained
chemicals that made agent delirious. if P had been in the room that contained the chemicals, she
would have been in the zone of danger.
k. Wagner v. International Ry. Co. LIABILITY Railroad Company for negligently leaving the door open
where Ps cousin fell. Foreseeable that a family member would go to the rescue and might get injured
as well. Have to look from Posners perspective where company will hire someone to find the injured
party, so liability.

4. Strict Liability

24. Scope of Strict Liability

strict liability under 20-23 does not apply if
a) If the person suffers physical harm as a result of making contact with coming into proximity to the defendants
animal or abnormally dangerous activity for the purpose of securing some benefit from that contact or that
proximity; or
b) If the defendant maintains ownership or possession of the animal or carries on the abnormally dangerous
activity in pursuance of an obligation imposed by law.
Strict Liability for Animals
Elements:
a) Ferae Naturae-Wild Animals: Always strict liability, even if trained because of dangerous propensity so must be
kept confined. Behrens v. Bertram Mills Circus, Ltd. SL
i) Unless its confined and animal hasnt done anything Bostock-Ferari Amusements v. Brocksmith NO
SL
ii) Implied invitation: when the wild animal is caged, D has to practice due care.
(1) Warning sign assumption of risk Opelt v. Al G. Barnes Co. SL
b)
Mansurtae Natura: Domesticated Animals
i) When is an animal domesticated? Tamed animal such as cat, dog, horse, or cow.
(1) Usefulness
(2) How long they have been studied then,
(a) Propensity to be controlled
(i) For purposes of due care and reasonableness of D
ii) One Bite Rule: SL only if there is awareness that the particular animal in question already had shown a
propensity to cause the sort of inflicted harm on P Baker v. Snell SL, Smith v. Pelah UNLESS
(1) The victim provoked the dog by physically abusing it
(2) The victim was a trespasser and knew dog was there
(3) The victim committed a felony
(4) The victim is a veterinarian or other professional
(a) Assumption of risk
(i) Professional should know how to handle animal
c) Manute Naturae: Wild, but never causes harm. (rabbits)
a. Behrens v. Bertram Mills Circus, Ltd. SL for circus owner whose elephant got frightened and
knocked down and ran over midget because of barking dog. Owner has knowledge of the risks if the
animal escaped.
b. Earl v. Van Alstine NO SLfor owner of bees when bees attacked horses that passes by. Apply
negligence because bees have been studied and are able to be controlled with smoke. D is able to
practice due care so we hold him to a negligent standard.
c. Candler v. Smith SL for owner of baboon when it went into the car of a woman and destroyed
property. Its only sufficient to know baboon was a wild animal.
d. Smith v. Pelah no facts, just a rule above
e. Banks v. Maxwell NO SL for owner of a bull (tamed animal) when he gored at P. Since its a tamed
animal, P must show that D had knowledge that the bull had done this before and the animal must be
vicious.
f. Vaughan v. Miller Bros. NO SL for circus when one of their apes bit off Ps finger. Animal was
restrained and P went into close in. MINORITY VIEW.

20

g. Bostock-Ferari Amusements v. Brocksmith NO SL for bear owner because even though its a wild
animal, it was secured and the animal did nothing, was controlled by D to take it somewhere. The
horse got scared and injured P.
1. PP:ifyoumakethisSLforkeepinglawfully,youreessentiallymakingowningabearstrictlyunlawful
h. Baker v. Snell SL for owner who knew his dog was vicious but did t think it would be vicious again.
Let him out and it was.
i. Opelt v. Al G. Barnes Co. SL for owner of wild animal when P went into a hall at circus and was
scratched by a caged animal. There is insufficient evidence, so SL. Should have had a warning sign. If P
still went inside then assumed the risk.
Strict Liability for Use of Land
Elements:
i) SL if brings something unnatural into land and does harm. Rylands v. Fletcher SL
ii) Defenses:
(1) Damage due to Ps fault (contributory negligence)
(2) Act of God, consequence of a superior force
(3) Harm was already there and they accepted the risk
iii) Exceptions: value to community outweighs dangerous attributes
(1) Unless kept reckless or wanton Lubin v. Iowa City SL
(2) PP: things that are demanded by mankind-Factories, machinery, dams, canals and railroads. Basis of
civilization Loose v. Buchaman No SL
(3) The artificial thing is ordinary and natural to the location
(a) Arid places Turner v. Big Lake Oil No SL
j. Rylands v. Fletcher SL for owner of reservoir when contractors negligently built a reservoir that
flooder Ps coal mine. Because disrupted the natural state of real property with something capable of
doing harm. PP: you should be free from harm in your own land.
k. Loose v. Buchaman No SL for factory when mill steam boiler exploded & pieces flew onto Ps
premises causing damage. Exception, factories important to mankind.
l. Turner v. Big Lake Oil No SL when salt overflowed from an artificial pond causing damage to Ps
pasture. Artificial storage of water is considered natural and ordinary usage of the land for Texas bc its
an arid place and need it to survive
m. Lubin v. Iowa City SL for city that the habit of leaving underground water pipes in place until they
would break.
Abnormally Dangerous Activities
519. General Principle
i) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or
chattels of another resulting from the activity, although he has exercised the utmost care to prevent the
harm.
ii) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally
dangerous
520. Abnormally Dangerous Activities
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
i) Existence of a high degree of risk of some harm to the person, land or chattels of others;
ii) Likelihood that the harm that results from it will be great;
iii) Inability to eliminate the risk by the exercise of reasonable care;
iv) Extent to which the activity is not a matter of common usage;
v) Inappropriateness of he activity to the place where it is carried on; and
vi) Extent to which its value to the community is outweighed by its dangerous attributes.
(1) Comments: certain activities, notwithstanding their recognizable danger, are regarded to be customary
ex. Driving or motor vehicles with tanks.
Elements
i) Strict Liability is only appropriate against parties engaged in abnormally dangerous activities
(1) SL if the risk cannot be avoided even with the exercise of due care
(2) SL is for activities not things Indiana Harbor Belt Ry. Co. v. American Cyanamid Co. No SL
(3) 520 In determining whether an activity is abnormally dangerous, the following factors are to be
considered:
(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 he activity to the place where it is carried on; and
(f) Extent to which its value to the community is outweighed by its dangerous attributes.
(4) NO SL if is able to exercise due care Miller v. Civil Constructors, Inc. No SL
(a) Common usage
(b) Appropriate setting, AND
(c) Social utility

21

n. Indiana Harbor Belt Ry. Co. v. American Cyanamid Co. No SL for manufacturer of chemicals
because the chemicals did not have a risk. It was the delivering (the activity) that if done negligently
would be of risk.
o. Siegler v. Kuhlman SL for driver of gasoline that caused spilled and someone died because it is
unlikely that even with due and reasonable care the harm will be avoided. He had taken all precautions
etc.
p. Miller v. Civil Constructors, Inc. No SL for firing range when bullet ricocheted and hit P- guns are
not strict liability bc of common usage, appropriate setting, and social utility of guns.
q. Sullivan v. Dunham SL for workers who used dynamite to cut down a tree that killed P. Dynamite is
abnormally dangerous and reasonable care is not enough to eliminate negligence, so SL.

5. Respondeat Superior

228. Restatement of Agency

a) Conduct of a servant is within the scope of employment if, but only if:
i) It is of the kind he is employed to perform;
ii) It occurs substantially within the authorized time and space limits;
iii) It is actuated, at least in part, by a purpose to serve the master, and
iv) If force is intentionally used by the servant against another, the use of force is not unrespectable by the
master.
b) Conduct of a servant is not within the scope of employment if it is different in kind f rom that authorized, far
beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
Elements
a) Employees L for torts committed by employees in the scope of employment
(1) Applies to all torts: Intentional, negligence, strict liability
ii) There must be foreseeability
iii) Also liable if:
(1) Negligence in choosing the employer;
(2) Failing to give adequate training or
(3) Failing to equip employee adequately or
(4) Failed to supervise etc.
iv) Scope of employment factors:
(1) SL when it is of the kind he is employed to perform;
(2) It is actuated, at least in part, by a purpose to server the master Roth v. First Natl. State Bank of
New Jersey NO LIABILITY
(3) Not within scope if different from kind that was authorized, far beyond authorized time and space, or
too little actuated by a purpose to serve the master 228 Roth v. First Natl. State Bank of New
Jersey NO LIABILITY
b) Independent Contractors
i) Generally NL since not servants
c) Who is a servant?
i)

The extent of control which, by the agreement, the master may exercise over the details of the work;

ii)

Whether or not the one employed is engaged in a distinct occupation or business;

iii) The kind of occupation, with reference to whether, in the locality, the work is usually done under the
direction of the employer or by a specialist without supervision;
iv) The skill required in the particular occupation;
v)

Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the
person doing the work;

vi) The length of time for which the person is employed;

vii) The method of payment, whether by the time or by the job;
viii) Whether or not the work is a part of the regular business of the employer;
ix) Whether or not the parties believe they are creating the relation of master and servant; and

x) Whether the principal is or is not in business.

22

a. Ira S. Bushey & Sons v. United States LIABILITY for US Coast Guard wen its employee negligently
turned ship and caused damages-was within scope of employment because his job was to come into
the dock, it was foreseeable that employee could use the keys he was given and cause damage.
People take their habits and personality to their work. Should have taken reasonable care in hiring
someone better
b. Roth v. First Natl. State Bank of New Jersey NO LIABILITY when employee told husband about a
clients whereabouts who carried large sums of money. Her husband robbed P. Outside the scope of
employment bc it was far removed time/space, unforeseeable her husband would commit a crime.

6. Contributory and Comparative Negligence

Contributory Negligent Cases: ONLY GOOD LAW IN ALABAMA- where P never recovers if slightly
negligent.
a. Harris v. Meadows NO LIABILITY for D when he ran into P would have been able to avoid the harm by
applying her brakes. Contributory negligent.
b. Alibrandi v. Helmsley NO LIABILITY for employee that needed to unload packages and couldnt find a
loading dock so unloaded far away. Was walking backwards and got injured. He was contributory
negligent
Comparative Negligence:
479. Last Clear Chance: Helpless Plaintiff
A plaintiff who has negligently subjected himself to a risk of harm from the defendants subsequent negligence
may recover for harm caused thereby if, immediately preceding the harm,
a) The P is unable to avoid it by the exercise of reasonable vigilance and care, and
b) D is negligent in failing to utilize with reasonable care and competence his then existing opportunity to
avoid the harm, when he
i) Knows of the Ps situation and realizes or has reason to realize the peril involved in it or
ii) Would discover the situation and thus have reason to realize the peril, if he were to exercise the
vigilance, which it is then his duty to the P to exercise.
480Last Clear Chance: Inattentive P
A P who, by the exercise of reasonable vigilance, could discover the danger created by Ds negligence in time
to avoid the harm to him, can recover if, but only if, the D
i) Knows of Ps situation, and
ii) Realizes or has reason to realize that P is inattentive and therefore unlikely to discover his peril in time to
avoid harm, and
iii) Thereafter is negligent in failing to utilize with reasonable care and competence his then existing
opportunity to avoid the harm.
Elements:
i) Liability of Defendant is estimated by % of fault jury finds on P
ii) P is held to the same standard as D
iii) Modified (dif. Jurisdictions):
(1) If P is more than 50% responsible no recovery
(2) 51% if P is more responsible than no recovery.
iv) P may recover if D was also negligent when
(1) P is unable avoid harm by reasonable care AND
(2) D fails to use reasonable care to avoid harm
(a) Knows of situation
c.

Davies v. Mann RECOVERY for owner of donkey who left it on the side of the road and Ds wagon ran
over it and killed it. D liable because he knew of Ps situation and should have slowed down or moved
out of the way. D had an opportunity to avoid accident at a point when P did not.
d. McIntyre v. Balentine RECOVERY for P, the owner of a truck who was ran over by a tractor. D had
been intoxicated but P had been speeding. Can only recover if P less negligent than D.

7. Assumption of Risk

Expressed Assumption of Risk

496B. Express Assumption of Risk
A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from Ds negligent or
reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.
Elements:
a) When P expressly agrees to free D from liability 496B Manning v. Brannon NO LIABILITY
i) Must be knowingly
b) D escapes liability and P is barred from recovery UNLESS:
i) Agreement does not account for Ds negligence Van Tuyn v. Zzurich American Ins. Co. LIABILITY
ii) There is no bargaining power in contract
(1) Amount of free choice a party could have exercised when seeking alt services Anderson v. Erie Ry.
Co. NO LIABILITY
iii) Overrides Public Interest Tunkl v. Regents of the Univerity of California LIABILITY
a. Van Tuyn v. Zzurich American Ins. Co. LIABILITY for restaurant owner of automatic bull because
waiver form did nt say it releases the company from its own negligence.

23

b. Manning v. Brannon NO LIABILITY for skydiving co when equipment went wrong and caused
accident-P had signed off on waiver submitting to all potential damages including for negligence of co.
c. Anderson v. Erie Ry. Co. NO LIABILITY for railroad that sold P discounted ticket with waiver for
damages from accidents/negligence-train crashed and P died, no recovery bc of waiver-and the
exchange of duty of common carried for cheaper ride when purchased ticket. Made a choice if not
could have bought other ticket.
d. Tunkl v. Regents of the Univerity of California LIABILITY for hospital for medical malpractice even
after patient signed a waiver precluding D of all negligence-public interest doctrine. When in need of
medical service there is no choice but to go in, people are vulnerable at that point, hospitals would
have all the bargaining power.
Primary Assumption of Risk
Elements:
i) Bars Ps recovery when P freely undertakes dangerous activities when
(1) It is within the scope of the risk; Murphy v. Steeplechase Amusement Co. NO LIABILITY
(2) It is foreseeable;
(3) It is informed;
ii) NO primary assumption of risk if Woodall v. Wayne Steffer Productions LIABILITY
(1) Ps conduct does not consent to relieve D of obligation to protect him
(2) Relies upon assurance of safety
(a) Unless danger so obvious that there can be no reasonable reliance
(3) Intentional concealment or
(4) Misrepresentation
(5) Harm is intentional or very reckless
e. Murphy v. Steeplechase Amusement Co. NO LIABILITY for amusement park when man fell during a
ride that you were supposed to fall on-within the scope of the activity-he knew of it, had been watching
the ride before.
f. Woodall v. Wayne Steffer Productions LIABILITY for entertainment company agreed they would
provide a stunt driver, but hired an inexperience and negligent one-this was outside of the scope if the
risk P was taking and also not foreseeable the driver would be inexperience bc he relied on D.
g. Cohen v. McIntyre NO LIABILITY for dog that bit vet during appointment-was reasonably expected in
this setting-no extra duty of care to warn-and was not done intentionally-implied assumption of risk of
being a vet barred his recovery
h. Neighbarger v. Irwin Industries LIABILITY for employer, oil refinery, when negligently caused
petroleum spill and private inspectors were injured doing their job-private sector so they do not
assume all risk of harm just bc of their job, factory still owed them duty to be reasonable (different
from public sec workers-firefighters, etc DO assume all risk of harm).
i. Hendricks v. Broderick LIABILITY when D went hunting and assumed the person he shot was a
turkey. P did not assume the risk of getting shot by another hunter. Its out of the scope bc he assumes
some risk from animals, but humans who dont take reasonable care.
Secondary Assumption of risk
i) P knows of Ds negligence and still chose to be exposed to it UNLESS Kennedy v. Providence Hockey
Club NO LIABILITY
ii) P has no alternative (captive) Marshall v. Ranne LIABILITY
j. Marshall v. Ranne LIABILITY for owner of hog when he acted negligently in restraining the hog. A hog
attacked P when he was trying to make to the car. Did not assume the risk because it was either
remain captive in his own home, or run to the car.
k. Kennedy v. Providence Hockey Club NO LIABILITY for baseball co when P assumed the risk of going
to a baseball game when he knew of flying hotdogs.

8. Damages

Lost Earnings
a. Landers v. Ghosh jury decided less money than what was estimated because no high school degree,
and unemployed at the time. The estimate was assuming he was employed and stayed healthy, but he
smoked.
b. Pesatore v. Pan American World Airlines affirmed the highest compensation bc he was healthy,
made a lot of money, highly educated, Highest moving CEO of BP.
c. Haddigan v. Harkins affirmed estimate of housewifes family contribution by employment agency
with the wages of what a domestic costs: dishwashers, cooks, etc.
d. Benwell v. Dean The surviving spouses remarriage, or the possibility thereof, does not affect the
damages recoverable in an action for wrongful death of the deceased spouse. It is based at the time of
death.
Pain and Suffering
e. Olin Corp v. Smith was 16 years old and life expectancy of 55 years. Could have been useful to
society gets full amount. Leg had to be amputated. Court takes into account whether you take care of
yourself.
f. Williams v. United States: Facts and circumstances of Ps life are a factor in determining the award
for pain and suffering. He has spent more of this adult life as a prison inmate with a history of drug and
alcohol abuse, unable to hold a steady job during times where he was not incarcerated.

24

25